CANDY VAUGHN, AS ADMINISTRATRIX OF THE ESTATE OF JAMES VAUGHN, CANDY VAUGHN AS WIFE OF JAMES VAUGHN AND CAND VAUGHN IN HER OWN RIGHT, Plaintiffs,
JEFFREY I. JACKERSON, D.O. and MILFORD MEMORIAL HOSPITAL and ADAM S. BROWNSTEIN, M.D. and MILFORD MEDICAL ASSOCIATES, PA and RONALD M. LIEBERMAN, D.O and DELAWARE SPINE INSTITUTE and KENT DIANOSTIC RADIOLOGY ASSOCIATES, PA Defendants.
Submitted: December 16, 2013
Lisa M. Grubb, Esquire, of Schmidt Kirfides & Fridkin, Wilmington, Delaware, attorney for Plaintiffs.
Bradley J. Goewert, Esquire and Joshua J. Inkell, Esquire, of Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware, attorneys for Defendants Jeffrey I. Jackerson, D.O. and Kent Diagnostic Radiology Associates, P.A.
Joshua H. Meyeroff, Esquire, of Wharton Levin Ehrmantraut & Klein, P.A., attorney for Defendants Adam S. Brownstein, M.D. and Milford Medical Associates, P.A.
Peter C. McGivney, Esquire, of Elzufon Austin Tarlov & Mondell, P.A., for Defendants Ronald M. Lieberman, D.O. and Delaware Spine Institute.
ANDREA L. ROCANELLI, J.
This is a medical malpractice and wrongful death action. Defendants seek judgment on the grounds that the lawsuit was not filed within the applicable statute of limitation. Plaintiffs contend that the case was filed in a timely manner. There has been no discovery at this time and the factual record is not developed.
1. Defendants' Contentions
Defendants Ronald M. Lieberman, D.O. and Delaware Spine Institute filed a motion for summary judgment, alleging that the Plaintiffs' claims are barred by the statute of limitations. Defendants Lieberman and Delaware Spine Institute treated James Vaughn for hip and leg pain between November 17, 2010 and January 28, 2011. Defendant argues that the two year statute of limitations begins on the date of the alleged misdiagnosis or, under the continuing medical treatment doctrine, on the last date of the medical treatment. Thus, claims against Defendants Lieberman and Delaware Spine Institute are barred by the statute of limitations, since any misdiagnosis would have occurred on January 28, 2011 at the latest, and suit was not filed until July 11, 2013, more than two years later.
Defendants Jeffrey I. Jackerson, D.O. and Kent Diagnostic Radiology Associates, P.A. filed a motion to dismiss with prejudice. Defendants Jackerson and Kent Diagnostic's alleged misdiagnosis occurred on September 29, 2010 and James Vaughn and Plaintiff Candy Vaughn became aware of the injury on July 22, 2011. Thus, Defendants Jackerson and Kent Diagnostic allege that the two year statute of limitations for a medical malpractice applies because Plaintiffs became aware of the injury within the statutory two year period and, thus, Plaintiffs' claims against them are barred and should be dismissed with prejudice.
Defendants Adam S. Brownstein, M.D. and Milford Medical Associates, P.A. joined in Defendants Jackerson and Kent Diagnostic's motion to dismiss with prejudice. Defendants Brownstein and Milford Medical claim that their involvement in the case is also due to the alleged misreading of the September 29, 2010 x-ray, and any claims against them are barred by the statute of limitations because Plaintiffs had knowledge within two years of the alleged misdiagnosis.
2. Plaintiffs' Response to Dispositive Motions
Plaintiffs argue that the three year statute of limitations applies to the medical negligence action because, although Plaintiff, Candy Vaughn, knew her husband James Vaughn had cancer on July 22, 2011, she was not aware that the September 29, 2010 x-ray was suspicious of cancer until June 2013. Thus, according to Plaintiffs, under the medical malpractice statute of limitations, the statute began to run when Candy Vaughn became aware of the injury, which she did not know or discover during the two year statute of limitations. Plaintiffs also argue equitable tolling. For the motion for summary judgment, Plaintiffs argue that the motion is premature without discovery to determine ...