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Hartman v. Orthopaedic Associates of Southern Delaware, P.A.

Superior Court of Delaware, Kent

February 27, 2015

ELIZABETH I. HARTMAN, Plaintiff,
v.
ORTHOPAEDIC ASSOCIATES OF SOUTHERN DELAWARE, P.A., a Delaware corporation, and WILLIAM L. PFAFF, M.D., Individually, Defendants.

Submitted: February 24, 2015

Upon Consideration of Plaintiff’s Motion in Limine GRANTED

Upon Consideration of Defendants’ Motions in Limine GRANTED IN PART and DENIED IN PART

Douglas B. Catts, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware for Plaintiff.

John A. Elzufon, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware for Defendants.

ORDER

ROBERT B. YOUNG, J.

DECISION

The various matters, presented to the Court as Motions in Limine, will be addressed separately, but all in this single Order, so as to provide timely responses to counsel in preparation for trial commencing on April 13, 2015.

I. Motion to Declare that a Surgeon who makes a Decision which is Supported by Peer Reviewed Literature has Acted within the Required Standard of Care as a Matter of Law

The granting of this Motion, as configured by counsel, would be tantamount to a summary judgment in favor of the Defendants in this case. That is, Defendants argue that, since Defendant Orthopaedic Associates has only vicarious liability from Defendant Pfaff's treatment, and since Dr. Pfaff must, as a matter of law, be found not to be negligent, judgment for Defendants must be rendered.

The reason propounded, to support the demand that Defendant cannot be found negligent, is that certain peer reviewed literature could be read to indicate that processes – essentially followed by Defendant – are appropriate in the performance of the surgical procedure undertaken by Defendant. That being the case, Defendants say, judgment in their favor is appropriate, citing to Riggins vs. Mauriello, (Del. Supr. 1992) 603 A.2d 827 at 830-831.

The Riggins case involved the language of a jury instruction. Ultimately, it reversed a jury finding on behalf of the physician. The case held that "there is sufficient evidence upon this record to support Dr. Mauriello's defense, " sending the case back for a new trial. Far from finding that medical testimony of experts (let alone excerpts from treatises) in favor of the physician will preclude going to trial, Riggins merely recognizes that both sides have legitimate arguments.

So, in this case, with expert testimony present on each side of the argument, the case will not be terminated on a finding as a matter of law.

Defendant's Motion on this issue is DENIED.

II., III. & IV. Motion to Preclude Punitive Damages, to Prevent their being Submitted to the Jury, and to the Admission of "Expert" Testimony Regarding them

The matter of the submission of a claim to the trier of fact is originally, a matter for the decision of the Court. That is, if, upon review of the evidence, the circumstances do not justify submission of a question of punitive damages, then the issue is foreclosed as a matter of law.[1]

In response to Defendants' Motions, Plaintiff has relied upon certain pieces of testimony from her experts, Dr. Fedder and Dr. Zuccaro. They, respectively, have said:

(1)"... once you have evidence...that it's abnormal...you are obligated to take it out. If you don't, then this concept that you're willful or reckless, I think, does hold true. It violates the standard of care..."
(2)"What I was referring to as far as his recklessness in the case is that he basically had missed opportunities where he could have prevented an injury...He chose not to remove it. Therefore, I think he was reckless in that case and breached the standard of care."

It must be recognized as axiomatic that physicians are not trained in the nuances of legal language distinction. Hence, the mere use by physician of the words "you're wilful or reckless" and "recklessness" is of small consequence. The issue is as described at length in the Jardel case, which reversed an award of punitive damages, indicating that the punitive issue should not have been submitted to the jury. So, we look here to see if the actions of Defendant, viewed in ...


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