      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MONICA KING ANDERSON,      )
Individually and as Personal
                           )
Representative of the ESTATE OF
                           )
WILLIAM KING, STEPHANIE    )
KING, HEATHER GUERKE, and  )
AMBER WITHROW,             )
                           )
      Plaintiffs,          )
                           )
      v.                   )             C.A. No. N18C-04-158 ALR
                           )
GI ASSOCIATES OF DELAWARE, )
P.A., ADVANCE ENDOSCOPY    )
CENTER, LLC, and NATWARLAL )
RAMANI, M.D.,              )
                           )
      Defendants.          )

                          Submitted: March 13, 2020
                           Decided: April 28, 2020

                Upon Defendants’ Motion for Summary Judgment
                                  DENIED

                        MEMORANDUM OPINION




Bradley J. Goewert, Esquire, Lorenza A. Wolhar, Esquire, Marshall, Dennehey
Warner, Coleman & Goggin, Wilmington, Delaware, Attorneys for Defendants.

Timothy E. Lengkeek, Esquire, Young, Conaway, Stargatt & Taylor, LLP,
Wilmington, Delaware, Attorney for Plaintiffs.



Rocanelli, J.
      This is a medical negligence case involving a continuum of negligent medical

treatment. William King was at high risk for developing colorectal cancer. Starting

in or about 2004, Mr. King was a patient of Defendant Natwarlal Ramani, M.D. who

performed repeated colonoscopies. Dr. Ramani’s associated medical professional

entities, GI Associates of Delaware, P.A. and Advance Endoscopy Center, LLC, are

also defendants (collectively, “Defendants”).

      On April 4, 2011, Dr. Ramani performed a repeat colonoscopy which showed

benign tumors in Mr. King’s colon.              Following the procedure, Dr. Ramani

recommended to Mr. King that he return for a colonoscopy within 3 to 5 years. As

directed by Dr. Ramani, Mr. King scheduled a repeat colonoscopy with Defendants

to take place on March 23, 2016—within 5 years of the April 4, 2011 colonoscopy.

Unfortunately, Dr. Ramani could not complete the procedure on March 23, 2016

because a malignant growth had formed in Mr. King’s colon.

      Mr. King died just a few months later. By letter dated January 26, 2017, Mr.

King’s family, who are the plaintiffs in this lawsuit together with Mr. King’s estate,

gave notice to Defendants of an investigation of Defendants’ treatment of Mr. King.

This lawsuit was filed on April 16, 2018.

      Defendants seek summary judgment in their favor on the ground that this

lawsuit is time-barred. Specifically, Defendants contend that this case involves a

single act of negligence that took place on April 4, 2011, when Dr. Ramani told Mr.

                                            1
King to return for his next colonoscopy within 3 to 5 years. Plaintiffs oppose

summary judgment on the grounds that this lawsuit involves a continuum of

negligent treatment rather than a single act of negligence and that it was filed within

the applicable statute of limitations.

      As set forth more fully in this opinion, the Court concludes that the statute of

limitations began to run on March 23, 2016, the date of the last act in a continuum

of negligent medical treatment; that the statute of limitations was tolled for up to 90

days by the notice of investigation on January 26, 2017; and that this lawsuit filed

on April 16, 2018 was timely filed within the tolled statute of limitations period.

Accordingly, summary judgment must be denied.

                            STANDARD OF REVIEW

      The Court may grant summary judgment only where the moving party can

“show that there is no genuine issue as to any material fact and that the moving party

is entitled to judgment as a matter of law.”1 A genuine issue of material fact is one

that “may reasonably be resolved in favor of either party.”2 The moving party bears

the initial burden of proof and, once that is met, the burden shifts to the non-moving

party to show that a material issue of fact exists.3 At the motion for summary

judgment phase, the Court must view the facts “in the light most favorable to the


1
  Super. Ct. Civ. R. 56(c).
2
  Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979).
3
  Id.
                                       2
non-moving party.”4 Summary judgment is appropriate only if Plaintiffs’ claims

lack evidentiary support such that no reasonable jury could find in Plaintiffs’ favor.5

                                    DISCUSSION

      The applicable statute of limitations for medical negligence actions is set forth

in Section 6856 of Title 18 of the Delaware Code which provides in relevant part:

      No action for the recovery of damages upon a claim against a health-
      care provider for personal injury, including personal injury which
      results in death, arising out of medical negligence shall be brought after
      the expiration of 2 years from the date upon which such injury occurred
      . . . .6

Plaintiffs may toll the limitations period up to 90 days “by sending a Notice of Intent

to investigate to each potential defendant or defendants by certified mail, return

receipt requested, at the defendant’s or defendants’ regular place of business.”7

Medical negligence actions involving ascertainable injuries are barred after two

years from the “date upon which such injury occurred,”8 subject to a tolling period

of up to 90 days.9 For purposes of Section 6856, the date upon which the “injury”


4
  Brozka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
5
   See Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1200–05 (Del.
2015); Edmisten v. Greyhound Lines, Inc., 2012 WL 3264925, at *2 (Del. Aug. 13,
2012).
6
  18 Del. C. § 6856.
7
  Id. § 6856(4).
8
   See id. § 6856 (“No action . . . against a health-care provider for personal injury
. . . arising out of medical negligence shall be brought after the expiration of 2 years
from the date upon which such injury occurred . . . .”).
9
  See id. § 6856(4) (“A plaintiff may toll the above statutes of limitations for a period
of time up to 90 days . . . .”).
                                            3
occurred depends on whether the case involves a single act of negligence or a

continuous course of negligent medical treatment.

I.    Single Acts of Negligence

      With respect to single acts of negligence, the decisional law is well-settled.

The Delaware Supreme Court has consistently held that where there is a single act

of medical negligence, typically a misdiagnosis or a failure to diagnose, the statute

of limitations for medical negligence begins to run on the date that the single act of

negligence occurred. Hence, according to the Delaware Supreme Court, where there

has been a single act of medical negligence, the date of the “injury” is the date on

which the medically “wrongful act or omission occurred.”10

      Dunn v. St. Francis Hospital11 involves a single act of negligence by a

surgeon. In Dunn, the Delaware Supreme Court held that the phrase “injury

occurred” in Section 6856 refers to the date of the wrongful act or omission.12 Dunn

involved a negligently performed surgery and a plaintiff who did not experience the

resulting pain until five years later.13 Examining the text of the statute and its

legislative history, the Court concluded that the purpose of Section 6856 was to

“limit the open-ended aspect of the prior law which provided in the case of an


10
   Dambro v. Meyer, 974 A.2d 121, 126 (Del. 2009) (quoting Meekins v. Barnes,
745 A.2d 893, 897–98 (Del. 2000)).
11
   401 A.2d 77 (Del. 1979).
12
   See id. at 79–81.
13
   See id. at 78.
                                     4
‘inherently unknowable’ injury that the applicable period began to run when the

injured person became aware of his injury.”14 Accordingly, the Court found that the

date on which the plaintiff’s pain manifested had no bearing on when the limitations

period began; rather, the source of the pain—the negligent surgery—was the

injury.15 Thus, the limitations period began on the date of the negligent surgery

because it was a single act of negligence.

      Dambro v. Meyer also involved a single negligent act: a misread

mammogram.16 In Dambro, the Supreme Court held that the two-year statute of

limitations began to run on the date that the defendant-doctor failed to diagnose

breast cancer that should have been evident on the mammogram.17 The Court noted

that, for purposes of Section 6856, the injury—“the delay in treatment”—occurred

on the “date that the cancer could have been diagnosed but was not.”18 Similarly, in

Meekins v. Barnes, another case involving a single negligent act of a misread

mammogram, the Court held that the injury occurred on the date that the defendant-




14
   Id. at 79 (citing Layton v. Allen, 246 A.2d 794 (Del. 1968)).
15
   See id. at 80–81.
16
   974 A.2d at 124–25.
17
   See id. at 131–32.
18
   Id. at 132.
                                           5
doctor examined the mammogram and negligently failed to diagnose the plaintiff’s

cancer.19

      Citing the decisions of the Delaware Supreme Court which involve a single

act of negligence, Defendants argue that Plaintiffs’ claims are time-barred because,

according to Plaintiffs’ own expert witness, Dr. Ramani breached the standard of

care on April 4, 2011, when Dr. Ramani instructed Mr. King to return for a repeat

colonoscopy within 3 to 5 years. According to Defendants, this advice constitutes a

single act of negligence and the decisional law involving single acts of negligence

interprets the word “injury” to mean “negligence” in the context of Section 6856.

Accordingly, according to Defendants, the statute began to run on April 4, 2011 and

expired two years later on April 4, 2013 or, at most, on April 4, 2014.20

      Defendants’ reliance on the decisional law involving single acts of negligence

is misplaced for several reasons. First, the case before the Court does not involve a

single act of negligence but instead involves a continuous course of negligent

medical treatment, which is a separate and distinct cause of action subject to a


19
    745 A.2d at 897–98; see also Reyes v. Kent Gen. Hosp., Inc., 487 A.2d 1142,
1144–45 (Del. 1984) (finding the “injury occurred” on the date that an emergency
room physician failed to diagnose a malignant tumor).
20
    Section 6856 provides a separate three-year limitations period for injuries that
were “unknown to and could not in the exercise of reasonable diligence have been
discovered by the injured person,” 18 Del. C. § 6856(1), the effect of which is to
“both codify the ‘inherently unknowable’ injury rule of the Layton case, and to limit
it to three years.” Meekins, 745 A.2d at 896–97. Plaintiffs do not ask the Court to
apply the three-year limitations period.
                                         6
different Section 6856 analysis.21 Second, the decisional law involving single acts

of negligence is not applicable where, as here, the injury and the negligence did not

take place on the same date.       Importantly, each of the cases relied upon by

Defendants involved medically negligent acts that immediately gave rise to the

plaintiffs’ injuries. Third, Defendants conflate Plaintiffs’ expert’s medical opinion

regarding Dr. Ramani’s negligence with the legal analysis construing the date of

injury.

      Unlike the injuries in the cases involving single acts of negligence, Mr. King’s

injury did not arise at the time of the alleged breach of the standard of care. There

is no record evidence that Mr. King had cancer which was missed or misdiagnosed

by Dr. Ramani during the April 4, 2011 colonoscopy. Rather, after his colonoscopy

on April 4, 2011, Mr. King remained under Dr. Ramani’s negligent treatment and

returned, as instructed, within 5 years for a repeat colonoscopy. While Plaintiffs

claim that Dr. Ramani failed to meet the standard of care on April 4, 2011 by

advising Mr. King to return for a repeat colonoscopy in 3 to 5 years, under the correct

legal analysis involving a continuum of negligent treatment, Mr. King’s injury did

not occur until Mr. King followed the advice of his physician and had a repeat

colonoscopy on March 23, 2016. On that date, Dr. Ramani could not complete Mr.


21
  See Second Am. Compl. ¶ 24; cf. Ewing v. Beck, 520 A.2d 653, 661 (Del. 1987)
(“[W]hat the Delaware courts have recognized is more appropriately described as a
cause of action for continuous negligent medical treatment.” (emphasis added)).
                                         7
King’s routine screening colonoscopy because there was a malignant growth on his

colon and the cancer had advanced too far for effective treatment. Accordingly, the

decisional law governing single acts of negligence does not apply to this case.

      Moreover, this Court finds that the legal question of when the “injury

occurred” is not controlled by the professional opinion of Plaintiffs’ standard of care

expert, who testified at his deposition that Dr. Ramani breached the standard of care

on April 4, 2011 by advising Mr. King to return for a repeat colonoscopy in 3 to 5

years “whereas, the standard of care would be three years, at most I would say.” 22

According to Plaintiffs’ expert, Mr. King “was even more likely to develop cancer

than the average person” and therefore “certainly three years would have been the

absolute maximum, according to the guidelines.”23

      Justice Berger’s dissenting opinion in Meekins is instructive here. In Meekins,

Justice Berger disagreed with the majority conclusion that the date of the negligent

act and date of the injury were the same date. Justice Berger emphasized that the

plain language of the Delaware statute provides that the limitations period runs from

the date of injury.24 While the date of injury and the date of negligence are frequently

the same, Justice Berger explained, the date of malpractice is not the controlling

date; rather, the controlling date is the date of the injury: “I would follow settled


22
   Moss Dep. 25:9–11, Oct. 14, 2019.
23
   Moss Dep. 25:11–16.
24
   See Meekins, 745 A.2d at 901–02 (Berger, J., dissenting).
                                       8
principles of statutory construction, and give effect to the plain language of § 6856.

The statute provides that the limitations periods runs from the ‘date upon which such

injury occurred.’ That date is the date on which the negligent act caused harm.”25

         For Mr. King, who followed his doctor’s advice and had a repeat colonoscopy

within 5 years as instructed, the injury occurred on March 23, 2016, the day Dr.

Ramani could not complete the prescribed colonoscopy because a malignant growth

had developed in Mr. King’s colon. While Dr. Ramani may have breached the

standard of care on April 4, 2011, the injury occurred when Mr. King followed the

medical advice he was given. Here, the date of negligence and the date of injury are

two separate dates.      Accordingly, the decisional law involving single acts of

negligence does not apply to Plaintiffs’ claims. Instead, application of Section 6856

to Plaintiffs’ claims is governed by the continuous negligent medical treatment

doctrine.

II.      Continuous Negligent Medical Treatment

         A.    The two-year statute of limitations began to run on March 23, 2016

         Delaware recognizes the doctrine of continuous negligent medical treatment

as a separate cause of action that is applicable “[w]hen there is a continuum of

negligent medical care related to a single condition occasioned by negligence.”26 “If



25
     Id. at 902.
26
     Ewing v. Beck, 520 A.2d 653, 662 (Del. 1987).
                                          9
any act of medical negligence falls within the period during which suit may be

brought, the plaintiff . . . may bring suit for the consequences of the entire course of

conduct.”27 Bare allegations of continuous negligent medical treatment are not

enough to overcome a defendant’s motion for summary judgment based on statute

of limitations grounds.28 Instead, the Court must examine the facts alleged to

determine whether “the negligent treatment, as alleged, can be segmented or is, in

fact, so inexorably intertwined that there is but one continuing wrong.”29

      Claims of continuous negligent medical treatment are subject to the

limitations period set forth in Section 6856, which, for claims of continuous

negligent medical treatment, runs from the date of the “last act” in the negligent

continuum.30 The Court applies a two-part inquiry to determine the date of the “last

act.”31 First, the Court must determine “the date upon which the plaintiff had actual

or constructive knowledge of the negligent course of treatment,” applying a




27
   Id. at 662.
28
   See Ogden v. Gallagher, 591 A.2d 215, 219 (Del. 1991) (“[A] complaint brought
under the continuous negligent medical treatment theory of recovery must allege
with particularity a continuous course of negligent medical treatment over a finite
period of time.”).
29
   Ewing, 520 A.2d at 662.
30
   Id. at 663 (“[I]f a plaintiff has a cause of action for continuous negligent medical
treatment . . . , the state of limitations begins to run for two years from the last act in
the negligent continuum . . . .”).
31
   See Meekins, 745 A.2d at 899 (discussing the two-part inquiry required by the
holding in Ewing).
                                             10
reasonably prudent person standard.32 Second, the Court must determine “what is

the date of the ‘last act’ in the negligent continuum immediately prior to the date that

the patient received knowledge, actual or constructive, of the negligent course of

treatment.”33 The “last act” in the negligent continuum “must be an affirmative

happening or event” and is ascertained by an objective analysis.34

      With respect to the first prong, Mr. King acquired knowledge of Dr. Ramani’s

alleged negligence sometime after March 23, 2016, the date of the incomplete repeat

colonoscopy, when Mr. King was diagnosed with colon cancer. At that time, Mr.

King either had actual knowledge of Dr. Ramani’s negligent course of treatment or

could have discovered Dr. Ramani’s negligent course of treatment in the exercise of

reasonable diligence.

      With respect to the second prong, Defendants argue that the limitations period

“begins on the date of the last negligent act in the continuum of negligent medical

care.”35 Defendants correctly note that the Delaware Supreme Court has

distinguished the “continuing treatment doctrine,” which is not recognized in

Delaware, from the “doctrine of continuous negligent medical treatment,” which is




32
   Id.
33
   Id.
34
   Id.
35
   Defs.’ Reply Br. Supp. Mot. Summ. J. 11–12 (emphasis added).
                                       11
recognized as a valid cause of action in Delaware. The Court in Benge v. Davis

explained the distinction:

      Under the continuing treatment doctrine, the statute of limitations
      begins to run at the end of a course of treatment for a condition brought
      about by a prior negligent act, whether or not the continuous treatment
      is also negligent. On the other hand, under the doctrine of continuous
      negligent medical treatment, the statute of limitations runs from the last
      act in a “continuum of negligent medical care related to a single
      condition occasioned by negligence.” The difference between the two
      doctrines, for statute of limitation purposes, is that under the doctrine
      of continuous negligent medical treatment, the focus is limited to the
      last act in the negligent continuum, not the last act of any treatment.36

      Here, Defendants argue that treating a non-negligent act, i.e., the repeat

colonoscopy on March 23, 2016, as the “last act” for purposes of the continuous

negligent medical treatment doctrine would amount to adopting the continuing

treatment doctrine, which the Supreme Court has expressly rejected. Accordingly,

Defendants argue, “the last act” must have been “the last negligent act.”37

      Defendants’ argument misconstrues the purpose of the continuous negligent

medical treatment doctrine, which provides a cause of action to plaintiffs “[w]hen

there is a continuum of negligent medical care.”38 In other words, the doctrine

applies to circumstances where a series of acts by a medical professional taken

together constitute negligence on the part of the medical professional. Each act



36
   553 A.2d 1180, 1183 (Del. 1989) (quoting Ewing, 520 A.2d at 662).
37
   Defs.’ Reply Br. Supp. Mot. Summ. J. 11–12 (emphasis added).
38
   Ewing, 520 A.2d at 662 (emphasis added).
                                       12
alone need not be an act of negligence—such a requirement would render the

doctrine superfluous, as plaintiffs would already have a cause of action for each

individual act.

      In Ewing v. Beck, the first Delaware Supreme Court decision to officially

recognize the continuous negligent medical treatment doctrine, the Supreme Court

acknowledged that plaintiffs injured by a continuum of negligent medical care have

“but one cause of action.”39 The continuous negligent medical treatment doctrine

acknowledges a cognizable claim where the sum total of multiple acts, some of

which may not be negligent in and of themselves, constitutes negligent treatment.

An act that is part of the negligent treatment may be deemed the “last act” for

purposes of the second prong of the statute of limitations analysis. That is not to say

that any act by the medical professional in relation to the condition for which the

plaintiff received negligent treatment can constitute the “last act.”40 The act must be

one that, together with other acts taken during the course of treatment, forms the

negligent whole.


39
    Id. (emphasis added).
40
    See Benge, 553 A.2d at 1183 (“The difference between the [continuing treatment
doctrine and the continuous negligent medical treatment doctrine] . . . is that under
the doctrine of continuous negligent medical treatment, the focus is limited to the
last act in the negligent continuum, not the last act of any treatment.”); Ewing, 520
A.2d at 663 n.11 (“The cause of action recognized today . . . assumes a continuous
course of improper examination or treatment which is substantially uninterrupted.
. . . Our focus is limited to the last act in the negligent continuum[,] not the last act
of any treatment.”).
                                             13
          Here, the date of the last act in the continuum of negligent treatment was

March 23, 2016, the date on which Dr. Ramani attempted but could not complete

Mr. King’s repeat colonoscopy due to the malignant growth on Mr. King’s colon.

Mr. King’s March 23, 2016 visit was directed by Dr. Ramani’s April 4, 2011

recommendation to return for a repeat colonoscopy within 3 to 5 years. On March

23, 2016, Dr. Ramani attempted but failed to complete the repeat colonoscopy

because a malignant growth on Mr. King’s colon had developed between the two

visits.        These acts—the April 4 recommendation and the March 23 failed

colonoscopy—are so inexorably intertwined so as to constitute one continuous

wrong. In other words, while Dr. Ramani breached the standard of care by making

a wrongful recommendation on April 4, it was the recommendation and the resulting

too-late treatment that comprised the continuous negligent medical treatment.

Accordingly, the two-year statute of limitations began to run on March 23, 2016, the

date of the “last act” in the negligent medical continuum.

          B.      Plaintiffs’ claims are not time-barred

          By letter dated January 26, 2017, Plaintiffs informed Defendants of Plaintiffs’

intention to investigate potential claims of medical negligence.          Section 6856

provides that a notice of intent to investigate may toll the limitations period by up to

90 days, which “shall run from the last day of the applicable statute of limitations.”41


41
     18 Del. C. § 6856(4).
                                            14
Accordingly, the two-year limitations period was tolled by up to 90 days from March

26, 2018. Plaintiffs filed the Complaint within the tolled limitations period, on April

16, 2018.      Accordingly, Plaintiff’s claims are not time-barred and summary

judgment must be denied.

                                  CONCLUSION

         This medical negligence case does not involve a single act of negligence.

Rather, it involves a continuum of negligent medical treatment related to a single

condition occasioned by negligence. The date of the breach of the standard of care,

April 4, 2011, and the date of Mr. King’s injury, March 23, 2016, are two different

dates.     Nevertheless, the April 4 recommendation and the March 23 failed

colonoscopy are so inexorably intertwined so as to constitute one continuous wrong.

Accordingly, this lawsuit was timely filed on April 16, 2018 within the tolled statute

of limitations period.

         Denial of summary judgment is not an extraordinary ruling. Indeed, summary

judgment is frequently denied. Nevertheless, this Court appreciates that denial of

summary judgment for the reasons set forth herein may merit appellate review before

a final judgment.




                                          15
     NOW, THEREFORE, this 28th day of April 2020, Defendants’ Motion for

Summary Judgment is hereby DENIED.

     IT IS SO ORDERED.

                                Andrea L. Rocanelli
                                ______________________________
                                The Honorable Andrea L. Rocanelli




                                  16
