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Bokeno v. Bayhealth Medical Center, Inc.

Superior Court of Delaware

September 21, 2017

ELLI BOKENO, individually, as Surviving Spouse, and as Personal Representative and Administratrix of the ESTATE OF EUGENE RAYMOND BOKENO, DAVE KOCCHINO and DARIN BOKENO, Individually and as Surviving Sons of Eugene Raymond Bokeno, JENNY CHERRY, Individually and as Surviving Daughter of Eugene Raymond Bokeno, Plaintiffs,
v.
BAYHEALTH MEDICAL CENTER, INC. d/b/a BAYHEALTH MILFORD MEMORIAL HOSPITAL, APOGEE MEDICAL GROUP, DELAWARE, INC. d/b/a APOGEE PHYSICIANS, INC., KENT DIAGNOSTIC RADIOLOGY ASSOCIATES, P.A., ILYAS VAHORA, M.D., TIFFANY STODDARD, M.D., and YOGI TRIVEDI, M.D., Defendants.

          Submitted: July 10, 2017

         On Defendant Yogi Trivedi M.D.'s Motion for Summary Judgment Against Plaintiffs. GRANTED.

          Joseph R. Rhoades, Esquire and Stephen T. Morrow, Esquire, Rhoades & Morrow LLC, Wilmington, Delaware; Frederick C. Heyman, Esquire, and Kelly A. Donohue, Esquire, Bennett & Heyman, P.A., Baltimore, Maryland, Attorneys for Plaintiffs Elli Bokeno, Dave Kocchino, Darin Bokeno, and Jenny Bokeno.

          Richard Galperin, Esquire and Ryan T. Keating, Esquire, Morris James LLP, Wilmington, Delaware, Attorney for Defendants Bayhealth Medical Center Inc. d/b/a Bayhealth Milford Memorial Hospital and Tiffany Stoddard, M.D.

          Dana Spring Monzo, Esquire, and Lindsey E. Imbrogno, Esquire, White and Williams LLP, Wilmington, Delaware, Attorneys for Apogee Medical Group, Delaware, Inc. d/b/a Apogee Physicians, Inc. and Ilyas Vahora, M.D.

          Bradley J. Goewert, Esquire and Thomas J. Marcoz, Jr., Esquire, Marshall, Dennehey, Warner, Coleman, and Goggin, Wilmington, Delaware, Attorneys for Kent Diagnostic Radiology Associates, P.A.

          Maria R. Granaudo Gesty, Burns White, LLC, Wilmington, Delaware, Attorney for Moving Defendant Yogi Trivedi, M.D.

          MEMORANDUM OPINION

          Richard R. Cooch, R.J.

         I. INTRODUCTION

         Pending before this Court is Defendant Dr. Yogi Trivedi's motion for summary judgment. This is a medical negligence action brought on behalf of the survivors of Eugene Raymond Bokeno. The Plaintiffs in their complaint allege that the defendants collectively "fail[ed] to communicate, fail[ed] to appropriately interpret radiology imaging, fail[ed] to properly evaluate and recognize the significance of critical lab values, fail[ed] to ensure proper placement of a nasogastric tube, fail[ed] to evaluate and respond to a deteriorating condition, fail[ed] to perform timely surgical intervention, and overall" failed to administer non-negligent care from October 23, 2014 through October 26, 2014.[1] The Plaintiff allegedly died as a result of these actions or inactions.

         However, the issue raised by Dr. Trivedi at this stage is whether the Plaintiffs properly provided a Notice of Intent letter to him when Plaintiff sent such letter to Kent Diagnostic Radiology Associates ("Kent") on October 21, 2016, Dr. Trivedi's employer and business address at the time of the alleged tort, instead of sending it to Dr. Trivedi on October 21, 2016 at his then "regular place of business, " as purportedly required by 18 Del. C. §6856(4). Apparently unknown to Plaintiffs, Dr. Trivedi had terminated his employment with Kent on July 31, 2016 and at some point thereafter moved to Florida.[2] Plaintiffs relied in part on "internet research" on or about October 21, 2016 to determine Dr. Trivedi's regular place of business, and in part as a result of such research sent a Notice of Intent letter to Kent at Kent's two Delaware addresses for the purposes of tolling the statute of limitations for 90 days while further investigation was to be conducted pursuant to 18 Del. C. §6856(4).[3] Dr. Trivedi moves for summary judgment against Plaintiff on the grounds of Plaintiffs' non-compliance with §6856(4).

         This Court holds that the Plaintiffs' notice was not sent to Dr. Trivedi's "regular place of business" as of the date the notice was sent to him (October 21, 2016) as required for tolling the statute of limitations as required by 18 Del. C. §6856(4). This non-compliance with the statutory requirement precludes the maintenance of the action against Dr. Trivedi because the two-year statute of limitations had therefore expired as of the later filing of the complaint on January 13, 2017. Dr. Trivedi's motion for summary judgment is granted.

         II. FACTS AND PROCEDURAL HISTORY

         The Plaintiffs' decedent, Eugene Raymond Bokeno, born on July 10, 1940, had a medical history of diabetes mellitus, hypertension, COPD, hypothyroidism, and chronic renal disease. On October 23, 2014, Mr. Bokeno went to Defendant Bayhealth Medical Center Inc. complaining of "worsening acute abdominal pain that had started the previous day."[4] When he entered the medical facility, Emergency Room physician Dr. Ann Darlington noted that Mr. Bokeno had "severe right sided abdominal pain, bloating, and gas associated with some nausea but no vomiting."[5] She also indicated that he was in "mild distress" but he had no "respiratory distress."[6] Following her evaluation of Mr. Bokeno, Dr. Darlington ordered several tests, including an abdominal/pelvic CT scan.

         Dr. Trivedi, a radiologist and an employee of Kent, interpreted this CT scan on October 23, 2014. When Dr. Trivedi interpreted Mr. Bokeno's CT scan, Dr. Trivedi found that there was a "partial small bowel obstruction involving the focal segment of the jejunum with a transition point seen within the right lower quadrant."[7] Plaintiffs allege, however, that Dr. Trivedi failed to accurately interpret the CT scan as compared to "similarly situated radiologists."[8] Plaintiffs allege that Dr. Trivedi "fail[ed] to mention the presence of signs of a closed-loop obstruction, the high-grade nature of the obstruction, and the secondary signs suggesting the possibility of early strangulation."[9]

         Based on Dr. Trivedi's interpretation of the CT scan, Dr. Darlington consulted with a physician specializing in general surgery, Defendant Tiffany Stoddard, about admitting Mr. Bokeno. Dr. Trivedi was consulted again during Mr. Bokeno's hospitalization when he "interpreted the two (2) views of the abdomen, KUB, and noted the NG tube placement in the left upper quadrant of the stomach. Defendant Trivedi further noted that the study demonstrated gaseous distention of multiple loops of small bowel unchanged from CT."[10] During his hospitalization, Mr. Bokeno was in severe pain and Plaintiffs allege that Dr. Trivedi's misinterpretation of Mr. Bokeno's scans contributed to his pain and ultimate death. Mr. Bokeno died on October 26, 2014 allegedly as a result of all Defendants' collective negligence.

         Significantly, and for purposes of this motion, on October 21, 2016, Plaintiffs sent, by certified mail, return receipt requested, two Notices of Intent addressed to Dr. Trivedi at Kent Diagnostic Radiology Associates, P.A., at Kent's two Delaware addresses: 21 West Clarke Avenue, Milford, Delaware, 19963-1840, and 640 South Street, Dover, Delaware, 19901-3530. Kent was his employer at the time of the alleged negligence. The stated purpose of this letter was to extend the statutory period for an additional 90 days so that Plaintiffs could conduct further discovery pursuant to the requirements set forth in Section 6856(4).

         Soon after Plaintiffs filed their complaint, Dr. Trivedi filed a Motion to Dismiss pursuant to Super. Ct. Civ. R. 12(b)(6). Dr. Trivedi attached an affidavit to the motion which averred in part that "[a]s of July 31, 2016, [he] was no longer a partner, employee, or professionally associated with Kent Diagnostic Radiology Associates, P.A."[11] The Court then wrote to the attorneys asking for their positions as to whether Dr. Trivedi's reliance on the affidavit converted the Motion to Dismiss to a Motion for Summary Judgment. Both parties ultimately agreed that it did convert the motion to dismiss to a motion for summary judgment, but both parties stated that it ultimately did not matter whether the motion was treated as a motion to dismiss or a motion for summary judgment since the issue involved is ultimately a matter of statutory construction. The Court agrees that the motion before the Court is properly a Motion for Summary Judgment since a matter "outside the pleadings" has been presented.

         III. THE PARTIES' CONTENTIONS

         A. Dr. Trivedi's Contentions

         Dr. Trivedi first contends that the Notice of Intent letter did not comply with §6856(4) because as of July 31, 2016, Dr. Trivedi no longer practiced medicine in Delaware or had any business association with Kent, and asserts that the Notice of Intent letter was thus not sent to his "regular place of business" at the time the letter was sent, as purportedly required by §6856(4).[12] Dr. Trivedi further claims that because the Plaintiffs eventually served Dr. Trivedi after the complaint was filed at his Florida office located at 1600 Lakeland Hills Blvd, Lakeland, Florida 33805, "…[thus acknowledged] that Dr. Trivedi no longer practices or is associated with Kent Diagnostic Radiology, P.A."[13]

         Second, Dr. Trivedi claims that notice was improper because Kent, his former employer, received the Notice of Intent letter directed to Dr. Trivedi one day after the statute of limitations had expired.[14] The statute of limitations expired on October 23, 2016, two years after Dr. Trivedi interpreted the CT scan on October 23, 2014. However, Kent did not receive the Notice of Intent letter directed to Dr. Trivedi until October 24, 2016, one day after the statute of limitations expired "per the Return Receipt affixed to the Complaint."[15]

         Finally, Dr. Trivedi asserts that Section 6856(4) should be strictly interpreted. Dr. Trivedi contends that if the statute is strictly interpreted, then "regular place of business" can only refer to the place of employment at the time the Notice of Intent letter is sent. Dr. Trivedi further contends that the purpose of this notice statute is to give notice to the potential defendant of a potential claim.[16]

         All other defendants have taken no position with respect to Dr. Trivedi's motion.

         B. The Plaintiffs' Contentions

         First, Plaintiffs contend that the statute at issue in this case, 18 Del. C. §6856(4), is susceptible to different interpretations. The Plaintiffs ask the Court to interpret "regular place of business"[17] to mean a location at the time the alleged negligence occurred, as well as a location as of the date the ...


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