CANDY VAUGHN, as administratrix of the ESTATE OF JAMES VAUGHN, CANDY VAUGHN as wife of James Vaughn, and CANDY 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 DIAGNOSTIC RADIOLOGY ASSOCIATES, PA Defendants.
Submitted: November 19, 2014
Upon Defendants' Motions for Summary Judgment DENIED
Upon Defendant Milford Memorial Hospital's Motion to Dismiss DENIED
Edward J. Fornias, III, 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.
Gregory S. McKee, Esquire of Wharton Levin Ehrmantraut & Klein, P.A., attorney for Defendants Adam S. Brownstein, M.D. and Milford Medical Associates, P.A.
John A. Elzufon, Esquire and Kara A. Hager, Esquire of Elzufon Austin Tarlov & Mondell, P.A., for Defendants Ronald M. Lieberman, D.O. and Delaware Spine Institute.
James E. Drnec, Esquire and Melony Anderson, Esquire of Balick & Balick, LLC, attorneys for Defendant Milford Memorial Hospital.
This is a medical malpractice and wrongful death action. Defendants seek judgment on the grounds that Plaintiffs' lawsuit was not filed within the applicable statutes of limitation. In addition, Defendant Milford Memorial Hospital seeks to dismiss the action against it on the grounds that service was not perfected in a timely manner. Plaintiffs contend that the case was filed in a timely manner, and that service was perfected within the time allowed by Court Order and was therefore timely.
1. Defendants' Contention that Suit was Not Filed Within the Applicable Statutes of Limitation
James Vaughn had an x-ray of his hip on September 29, 2010. Cancer was not diagnosed at this time. James Vaughn had another x-ray of his hip and femur on July 20, 2011. On or about July 20, 2011, a CAT scan was also performed. The July 20, 2011 diagnostic test results were suspicious for malignancy, and James Vaughn started treatment for cancer shortly thereafter. James Vaughn died on June 1, 2012 from cancer and/or complications caused by the cancer. This lawsuit was filed on July 11, 2013.
Assuming arguendo for the purposes of the motion for summary judgment that there was a negligent act, Defendants contend that the negligent act took place on September 29, 2010 when the x-ray of James Vaughn was misread. Defendants concede, for the purposes of this motion, that James Vaughn should have been informed that the September 29, 2010 x-ray was suspicious for cancer. Therefore, according to Defendants, the two-year statute of limitations for medical negligence started to run on September 29, 2010, and expired on September 30, 2012. Moreover, according to Defendants, Plaintiffs' claim must have been filed by September 30, 2012 because Plaintiffs should have been aware of ...