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Robinson v. Regional Hematology and Oncology, P.A.

Superior Court of Delaware

May 8, 2018

CHARUPORN ROBINSON, and PETER ROBINSON, her husband, Plaintiffs,
v.
REGIONAL HEMATOLOGY AND ONCOLOGY, P.A., a Delaware Corporation, and RAMYA VARADARAJAN, M.D., Defendants.

          Submitted: April 13 and 20, 2018

         Upon Plaintiffs' Motion for Summary Judgment on Claims of ComparativeNegligence and Mitigation of Damages DENIED WITHOUT PREJUDICE

         Upon Defendants' Motion in Limine to Preclude Evidence of SubsequentRemedial Measures, Evidence Intended to be Protected by Peer Review Privilege, and Evidence of Expressions of Apology, Sympathy, or Compassion GRANTED IN PART

         Upon Defendants' Motion in Limine to Preclude Evidence of Linda Wilkinson's Medical History and to Any Changes in Telephone Triage Procedures GRANTED IN PART

         Upon Defendants' Motion in Limine to Limit the Testimony of Neil Kaye, M.D.DENIED

         Upon Plaintiffs' Motion in Limine to Exclude Testimony of Stephen Mechanick, M.D. DENIED

          MEMORANDUM OPINION

          ROCANELLI, J.

         This is a medical negligence case stemming from alleged injuries suffered by Plaintiff Charuporn Robinson ("Mrs. Robinson") after she developed an infection in her chemotherapy port site. Mrs. Robinson and her husband, Peter Robinson, (collectively, "Plaintiffs") filed suit against Regional Hematology and Oncology, P.A. ("RHOPA") and Dr. Ramya Varadarajan (collectively, "Defendants"). Plaintiffs allege that Dr. Varadarajan and the staff at RHOPA acted negligently by delaying to bring Mrs. Robinson in for treatment, which caused Mrs. Robinson to suffer substantial injuries. Defendants filed an answer denying liability and asserting a number of affirmative defenses, including comparative negligence and failure to mitigate damages.

         Trial is scheduled to begin on June 25, 2018. The parties have completed discovery and Plaintiffs have moved for partial summary judgment on Defendant's claims of comparative negligence and mitigation of damages. The parties have also filed multiple motions in limine. This is the Court's decision on Plaintiff's motion for summary judgment and the parties' motions in limine.

         FACTUAL BACKGROUND

         Mrs. Robinson was a breast cancer patient of Dr. Varadarajan at RHOPA. Mrs. Robinson's chemotherapy regimen was to consist of six cycles of chemotherapy. Mrs. Robinson received her second chemotherapy cycle on January 19, 2015. From January 21, 2015 to January 28, 2015, Mrs. Robinson called RHOPA multiple times with various complaints. Mrs. Robinson was next seen at RHOPA on January 28, 2015.

         At approximately 11:38 a.m. on January 28, 2015, Mrs. Robinson spoke to a nurse at RHOPA to advise, among other things, that her chemotherapy port site was hurting and leaking, that her body was numb and ached, that she felt like she was dying, and that she wanted to be seen by Dr. Varadarajan. At that point, the staff at RHOPA advised Mrs. Robinson to go to the emergency room. Mrs. Robinson stated that she would prefer to be seen by Dr. Varadarajan. The RHOPA staff scheduled an appointment with Dr. Varadarajan for approximately 2:30 p.m.

         At her appointment, a RHOPA nurse evaluated Mrs. Robinson and discovered that her chemotherapy port site was infected. Mrs. Robinson was sent to her breast surgeon's office, where a nurse removed the infected port. Mrs. Robinson was then sent to the emergency room at Christiana Hospital, where she was admitted for treatment of the infection. Mrs. Robinson was admitted for ninety-two days, during which time she developed sepsis and respiratory failure. Mrs. Robinson was on life support for twenty-seven days and on a ventilator for sixty-three days. Mrs. Robinson's four remaining chemotherapy treatments were cancelled.

         PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT

         Plaintiffs move for summary judgment on Defendants' claims of comparative negligence and failure to mitigate damages. Plaintiffs contend that Defendants' claims of comparative negligence and mitigation of damages go to Mrs. Robinson's initial refusal to go to the emergency room, which delayed her treatment by approximately three to four hours. Plaintiffs assert that the Defendants' nurse expert testified that patients undergoing chemotherapy are instructed to avoid places presenting a higher risk of infection, such as an emergency room. Plaintiffs also assert that Defendants' experts concede that the three to four delay in Mrs. Robinson's treatment on January 28, 2015 did not make a difference in the outcome. Therefore, Plaintiffs argue that Defendants cannot establish the affirmative defenses of comparative negligence and failure to mitigate damages.

         In response, Defendants instead emphasize Mrs. Robinson's action or inaction prior to January 28, 2015. Defendants argue that Mrs. Robinson was instructed to advise the staff at RHOPA of any redness, tenderness, or swelling around her chemotherapy port site, at which point the staff would have advised that she be treated. Defendants further contend that Mrs. Robinson kept a diary detailing pain and redness at her chemotherapy port site in the days leading up to January 28, 2015, but that she failed to inform the staff at RHOPA of these symptoms. Defendants argue that Plaintiff's own expert admits that the outcome would have been different if Mrs. Robinson had begun treatment for the infection on any day prior to January 28, 2015. Therefore, Defendants argue that evidence of comparative fault and failure to mitigate damages should be presented to the jury.

         The Court may grant summary judgment only where the moving party can "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."[1] A genuine issue of material fact is one that "may reasonably be resolved in favor of either party."[2] The moving party bears the initial burden of proof and, once that is met, the burden shifts to the non-moving party to show that a material issue of fact exists.[3] At the motion for summary judgment phase, the Court must view the facts "in the light most favorable to the non-moving party."[4] Summary judgment is only appropriate if Defendants' claims lack evidentiary support such that no reasonable jury could find in their favor.[5]

         Plaintiffs are not entitled to summary judgment on Defendants' claims of comparative negligence and failure to mitigate damages because there are genuine issues of material fact in dispute. While Plaintiffs contend that Defendants' claims go solely to Mrs. Robinson's actions on January 28, 2015, Defendants instead rely on Plaintiff's actions on the days leading up to January 28, 2015 to supports its claims. To that end, while Plaintiffs argue that the staff at RHOPA should have told Plaintiff to come in earlier for treatment, Defendants contend that Plaintiff should have mentioned any symptoms at her chemotherapy port site earlier, pursuant to RHOPA's instructions. Viewing the facts most favorable to Defendants, a reasonable jury could conclude the Mrs. Robinson's actions contributed to the severity of her injuries. Therefore, summary judgment is inappropriate, and Defendants' claims of comparative negligence and failure to mitigate damages may be presented at trial.[6] The standard for consideration of these issues at that time will be Delaware Rule of Civil Procedure 50.[7]

         MOTIONS IN LIMINE

         I. Defendant's Motion In Limine to Preclude Evidence of Subsequent Remedial Measures, Evidence Intended to Be Protected by the Peer Review Privilege, and Evidence of Expressions of Apology, Sympathy, or Compassion

         Following Mrs. Robinson's hospitalization and treatment, RHOPA conducted an Action Review of its telephone triage policy to determine if any policy changes could prevent a similar outcome in the future. After its review, RHOPA produced two documents containing recommended changes to its telephone triage policy. The first document was for internal use within RHOPA, and the second was shared with Mrs. Robinson's family.

         Defendants argue that both documents are evidence of subsequent remedial measures, and are inadmissible under Delaware Rule of Evidence 407 ("Rule 407"), which provides, "When after an injury or harm allegedly caused by an event, measures are taken which, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence."[8] However, Rule 407 also provides that evidence of subsequent remedial measures may be admissible if offered for another purpose, such as "providing ownership, control or feasibility of precautionary measures, if controverted, or impeachment."[9]

         Plaintiffs concede that evidence of subsequent remedial measures is inadmissible to prove negligence. Therefore, evidence of any changes to RHOPA's telephone triage policy made after Plaintiff's injuries shall not be admissible to prove negligence. However, to the extent that the evidence so provides at trial, evidence of RHOPA's subsequent remedial measures as addressed in the document provided to Mrs. Robinson's family may be admissible for another purpose, such as proving feasibility of precautionary measures, pursuant to Rule 407. If admission of this evidence is considered, the Court would apply the balancing test required by Delaware Rule of Evidence 403 ("Rule 403").

         Defendants argue that the document produced for internal use within RHOPA is inadmissible as it is protected by the peer review privilege. The Delaware Medical Peer Review Statute ("Peer Review Statute") protects the good faith actions of members of medical peer review committees "whose function is the review of medical records, medical care and physicians' work, with a view to the quality of care and utilization of hospital or nursing home facilities."[10] The Peer Review Statute exempts the records and proceedings of such peer review committees from discovery.[11] The Peer Review Statute is "intended to encourage the frank and open discussion of [physician] … performance by medical peer review committees" with a view "towards improving the quality of medical care in Delaware."[12] Plaintiffs do not dispute Defendants' arguments that the peer review privilege applies. Therefore, to the extent that RHOPA's Action Review constituted a medical peer review committee as contemplated under the Peer Review Statute, RHOPA's internal document is privileged from disclosure under the peer review privilege.[13]

         Defendants also assert that members of the Plaintiffs' family testified at their depositions about expressions of apology, sympathy, and compassion made by Dr. Varadarajan. Defendants argue that this evidence should be precluded under 10 Del. C. § 4318(b) ("Section 4318(b)"). Section 4318(b) provides that statements of a healthcare provider "that express apology …, sympathy, compassion, condolence, or benevolence relating to the pain, suffering, or death of a person as a result of an unanticipated outcome of medical care" are inadmissible in a civil action brought against the health care provider.[14] Plaintiffs concede that such statements are inadmissible under Section 4318(b). Therefore, any evidence that Dr. Varadarajan made statements of apology or sympathy to Plaintiff's family shall be inadmissible at trial.

         II. Defendant's Motion In Limine to Preclude Evidence of Linda Wilkinson's Medical History and Regarding Any Changes in Telephone Triage Procedures

         Linda Wilkinson ("Wilkinson") is a registered nurse employed at RHOPA. Until October 2016, Wilkinson was responsible for overseeing telephone triage. However, during 2014 and 2015, Wilkinson had help with her duties from other nurses at RHOPA. During her deposition, Wilkinson testified that RHOPA made changes to its telephone policy in October 2016, after Mrs. Robinson's treatment at RHOPA. In addition, Wilkinson testified that around the time period of October 2016, Wilkinson was hospitalized for stress relating to the number of phone calls she was receiving.

         Defendants reiterate that any evidence of changes to RHOPA's telephone triage policy should be precluded under Rule 407. As stated above, evidence of RHOPA's subsequent remedial measures shall not be admissible to prove negligence, but may be admissible for another reason, such as proving control or feasibility, [15] as long as the probative value is not substantially outweighed by the danger of unfair prejudice.[16]

         Defendants also assert that Plaintiffs should be precluded from entering any evidence pertaining to Wilkinson's medical condition or hospitalization. Defendants assert that such evidence is irrelevant under Delaware Rule of Evidence 401 ("Rule 401"), as it post-dates the medical care received by Mrs. Robinson by over one year. Defendants also argue that such evidence should be excluded under Rule 403, because its probative value is substantially outweighed by the danger of unfair prejudice and the potential for confusing and misleading the jury. In response, Plaintiffs agree not to refer to Wilkinson's hospitalization without first seeking approval of the Court outside of the presence of the jury. As a result, the Court need not decide at this point whether evidence of Wilkinson's hospitalization would be inadmissible. Rather, the Court will conduct the necessary analysis under Rules 401 and 403 should the issue arise at trial.

         III. The Parties' Motions In Limine to Preclude Expert Testimony

         Plaintiffs and Defendants have both filed Motions in Limine pertaining to each party's expert testimony. The admissibility of expert testimony is governed by Delaware Rule of Evidence 702 ("Rule 702"), which provides:

If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and ...

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