Free Remark - District Court of Delaware - Delaware

I Case 1:O5—cv—OO217-JPF Document 3-15 Filed O4/13/2005 Page1 0f3
EXHIBIT 3

Case 1:O5—cv—OO217-JPF Document 3-15 Filed O4/13/2005 Page 2 of 3
1 of 1 DOCUMENT
Krug, etal. v. Beebe Medical Center, et al.
C.A. N0. 02C-06-093
SUPERIOR COURT OF DELAWARE, NEW CASTLE
2003 Del. Super. LEXIS 334
June 6, 2003, Submitted
September 30, 2003, Decided
DISPOSITION: [*1] Defendant's Motion to Dismiss tiled his complaint on June 12, 2002, which was three
GRANTED. years after Defendant's negligence and Plaintiffs injury.
. . The issue is whether a patient is on notice of
LcxlsNcxlS(R) Hcadnotcs possible medical [*2] negligence, thus triggering the
statute of limitations, when informed that a second
COUNSEL: Andre G, Bouchard, Esquire, Bouchard catheterization is necessary only days after undergoing
Margules & Friedlander P A Wilmington DE the Orlgmal Rm?cqurc' Delawarlz liaw lmppsgs 3 twoyear
’ ' " ’ ' statute of l1m1tat1ons on plaintiffs bringing medical
. . . . negligence claims. nl The period begins to run from the
Michael D` Cam Esqum-3’ Wllmmgmm DE' date when the injury occurs. n2 Injured plaintiffs have as
John A. Elzufon, Esquire, Elzufon Austin Reardon much as an cxml year lf the mlury ls unknown}? them
Tarlov & Mondeu Wilmington DE. and cannotbe discovered through reasonable diligence.
’ ’ n3 The additional time for bringing a suit is known as the
Melanie K. Sharp, Esquire, Young Conaway Stargatt & discovery rule' H4
Taylor, Wilmington, DE.
Gilbert F. Shelsby, Jr., Esquire, Morgan Shelsby & nl DEL CODE ANN. tit. 18, § 6856 (2003).n2
Leoni, Newark, DE. 18 Del. C. § 6856.n3 Icl See Parsons v. Marvel,
2001 Del. Super. LEXIS 493, 2001 WL 1739451
JUDGES: FRED S. SILVERMAN, JUDGE. (Del. Super. Ct.)(citing Ewing v. Beck, 520 A.2d
653, 663 (Del. 1987))(one year extension in §
OPINION: 6856(l) only available where injuries not
After reviewing Defendant's March 18, 2003 motion glgilgggne/Firestone Im vascgitalnaglzxi
to dismiss on statute of limitations grounds, I conclude Amgica Inc 2002’ Del `S gr LEXISCZQI
that the statute has indeed run and Plaintiffs claims are ’ " ` up ' ’
barred In light of recent case law this case is relatively 2002 WL l°"2°89» at *20-21 (DBL Super'
mai Htforward ’ Ct.)(citing Began v. Dbcon, 547 A.2d 620, 623
g ` (Del. Super. Ct. 1988))(discovery rule applies to
Plaintiffs complaint concerns a cardiac medical malpractice actions involving inherently
catheterization, and an alleged lack of informed consent unknowable injuries where no observable or
and negligence. Specifically, Plaintiff pinpoints June 12, objective factors put laypeople on notice).
1999 as when he originally underwent a catheterization,
and June 14, 1999 as when Defendant unnecessarily and [*3]
negligently performed a repeat catheterization. Plaintiff Brown vt El DuPont de Nemours and Company,
Inc. n5 explains the "discovery rule." Brown states that

Case 1:O5—cv—OO217-JPF Document 3-15 Filed O4/13/2005 Page 3 of 3
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2003 Del. Super. LEXIS 334, *
the rule "starts the limitations period running only ‘when limitations began running on June 14, 1999. Plaintiffs
a legal injury is sustained.' Thus, the statute of limitations June 12, 2002 complaint falls outside the two-year period
period began to run when plaintiffs were on notice of a specified in § 6856 by almost a full year.
potential tort claim." n6 In the absence of actual notice, . . ,
. . . . . This motions outcome seemed clear after the oral
plarntrffs are on inquiry notice when they are chargeable . .
. . . . . argument. Nevertheless, the court gave Plarntrff a final
with knowing that their rights have been violated. n7 . .
chance to expand the record and explain how it was that
the second catheterization did not put him on notice.
Plaintiff chose not to provide more about why he did not
n5 820 A.2d 362 (Del. 2003).n6 Id at 368-369.n7 file suit sooner.
Id at 368’ n'2l` Plaintiff may have received substandard medical
care. It is difficult to see why he had to undergo back-to-
, Usually, whether and when a person is on notice back heart catheterizations. And the court prefers to give
presents a jury question. Even so, no reasonable juror Plaintiff his day in court. Nevertheless, the law requires
could conclude that Plaintiff was not on actual or inquiry that injured parties investigate their claims and file suit
notice that he had a potential claim as of June 14, 1999. within a specific time. Plaintiff missed the deadline.
Aiier undergoing a heart catheterization on June 12, , . . .
. . . . . Defendants motion to dismiss on statute of
1999, Plarntrff was at least under a duty to inquire into . . . .
lrmrtatrons grounds rs GRANTED. .
why a repeat procedure was necessary only two days
later. Plaintiff, therefore, was on notice, [*4] or inquiry IT IS SO ORDERED.
notice, of a "potential tort claim," and the statute of