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,
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
Defendant Yogi Trivedi M.D.'s Motion for Summary Judgment
Against Plaintiffs. GRANTED.
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.
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
R. Granaudo Gesty, Burns White, LLC, Wilmington, Delaware,
Attorney for Moving Defendant Yogi Trivedi, M.D.
Richard R. Cooch, R.J.
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. The Plaintiff allegedly died as a result
of these actions or inactions.
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. 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). Dr. Trivedi moves for summary judgment
against Plaintiff on the grounds of Plaintiffs'
non-compliance with §6856(4).
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.
FACTS AND PROCEDURAL HISTORY
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." 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." She also indicated that he was in
"mild distress" but he had no "respiratory
distress." Following her evaluation of Mr. Bokeno,
Dr. Darlington ordered several tests, including an
abdominal/pelvic CT scan.
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." Plaintiffs
allege, however, that Dr. Trivedi failed to accurately
interpret the CT scan as compared to "similarly situated
radiologists." 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."
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." 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.
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).
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." 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
THE PARTIES' CONTENTIONS
Dr. Trivedi's Contentions
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). 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,
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. 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
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
other defendants have taken no position with respect to Dr.
The Plaintiffs' Contentions
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" to mean a
location at the time the alleged negligence occurred, as well
as a location as of the date the ...