Bonesmo v. Nemours Foundation

253 F. Supp. 2d 801, 2003 U.S. Dist. LEXIS 4601, 2003 WL 1606082
CourtDistrict Court, D. Delaware
DecidedJanuary 31, 2003
DocketC.A.01-395-SLR
StatusPublished
Cited by46 cases

This text of 253 F. Supp. 2d 801 (Bonesmo v. Nemours Foundation) is published on Counsel Stack Legal Research, covering District Court, D. Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bonesmo v. Nemours Foundation, 253 F. Supp. 2d 801, 2003 U.S. Dist. LEXIS 4601, 2003 WL 1606082 (D. Del. 2003).

Opinion

MEMORANDUM OPINION

THYNGE, United States Magistrate Judge.

Background

This medical malpractice action was filed on June 10, 2001 by plaintiffs, residents and citizens of Norway, against defendant alleging that it was negligent and thereby caused the death of their daughter on June 12, 1999. 1 Fact discovery has occurred. Plaintiffs have identified two medical experts, Ann Kristin Olsson, M.D. and Ove Okland, M.D., both foreign physicians who practice in Sweden and Norway, respectively, whom they intend to call at trial regarding medical negligence, the standard of care and proximate cause. Although plaintiffs have offered to make both of these experts available for deposition by telephone or in person, the parties have stipulated and the Court has ordered that defendant may, by motion, test the sufficiency of plaintiffs’ written expert opinions. 2

Defendant has moved for summary judgment on the bases that plaintiffs are proposing that a physician should be *803 judged by a new standard of care, international recommendations, and that the opinions forming the basis of plaintiffs’ case “(1) do not satisfy the minimum requirements of the Delaware medical [malpractice] statute, (2) fail to articulate a standard of care against which any Delaware doctor ought to in fairness be judged, and (3) are based on medical literature that, in part, undermines the very conclusions drawn by the reports.” D.I. 47 at 2. Plaintiffs oppose defendant’s motion arguing that geography is irrelevant under the Delaware Health Care Malpractice Insurance and Litigation Act (the “Act”) since the expert’s familiarity with the field of medicine at issue is the only controlling consideration in determining competency of that expert to testify. Further, because both experts designated by plaintiffs practice in the same or similar field as defendant, they are qualified to provide expert testimony. Plaintiffs contend that summary judgment at this stage is premature because plaintiffs’ experts “have not had the opportunity to fully explain the opinions they summarized in writing and the grounds for those opinions.” D.I. 51 at 2. As a result, plaintiffs request that defendant’s motion be denied, or deferred until after plaintiffs’ experts have been deposed. Id.

Pertinent Facts

Ester Bonesmo was born in Norway on April 1, 1997 with a functional single heart ventricle, a condition known as hypoplasia left heart syndrome (“HLHS”), which is fatal if left untreated. This condition required the minor plaintiff to undergo three surgeries to correct the defect. She underwent her first surgery in Switzerland shortly after her birth. While in Switzerland, she was under the care of Dr. William Norwood, a pediatric cardiothoracic surgeon, and Dr. John Murphy, a pediatric cardiologist. When Ester returned to Switzerland in September 1997 for a second surgical procedure, she was again under the care of Drs. Norwood and Murphy. D.I. 47 at 3; D.I. 51 at 3.

Shortly after Ester’s second surgery, both physicians left Switzerland and founded the Nemours Cardiac Center (“NCC”) at the A.I. duPont Hospital for Children in Wilmington, Delaware. NCC is a multi-specialty cardiac treatment center staffed by cardiologists, cardiac anesthesiologists and cardiac surgeons. In April 1998, Ester underwent her third and final surgery, known as the Fontan procedure at NCC. Id.

The various surgeries Ester underwent apparently succeeded in establishing proper blood circulation because the child returned to Norway and did well. However, she subsequently developed a protein losing enteropathy and returned to NCC in May 1999 for treatment when her doctors in Norway could not improve her condition. Prior to her return to Wilmington, Ester’s pediatric cardiologist in Norway, Dr. Okland, one of plaintiffs’ experts, consulted with Dr. Murphy and referred her to NCC for management of her illness.

Ester arrived at NCC on May 20, .1999. On May 27,1999, a central venous catheter (“CYC”) was inserted into her right sub-clavian vein to administer various medications. Apparently, no anticoagulant medications were administered to her when the CVC was inserted or shortly thereafter.

According to plaintiffs, after the CVC was inserted, Ester’s condition deteriorated. She developed a thrombus (clot) in the vena cava which spread to her right pulmonary artery and occluded the flow of blood to her brain. She eventually suffered loss of neurological function and was removed from life support on June 12, 1999 and expired.

After Ester’s death, her parents discussed her treatment at NCC with Dr. *804 Okland. Dr. Okland raised concerns about the care Ester received at NCC. As a result, the plaintiffs contacted the Norwegian Health Ministry, the government department that had arranged for Ester’s care in the United States, and the Ministry subsequently retained Dr. Olsson, a pediatric cardiologist in Sweden, to review the child’s medical records and render an opinion. On April 19, 2001, Dr. Olsson issued a report, authored in Swedish, in which she criticizes the NCC physicians for not administering continuous anticoagulation therapy and for failing to timely recognize and treat signs and symptoms of a developing thrombus. A translated copy of Dr. Olsson’s report was provided to defendant during discovery. In October 2002, plaintiffs advised that they intended to also rely on Dr. Okland as an additional standard of care expert. No report has been provided, but his opinion was summarized by plaintiffs’ counsel in a letter to defense counsel dated October 28, 2002, stating that Dr. Okland would “echo the opinions set forth by Dr. Olsson in her April 19, 2001 report.” D.I. 47, Ex. 3; D.I. 51, Ex. E. Shortly thereafter, plaintiffs supplied the medical literature relied upon by Dr. Ols-son in her report and both experts’ curriculum vitae. 3

Discussion

Summary Judgment

Summary judgment under Federal Rule of Civil Procedure 56 is appropriate when after discovery, “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits” demonstrate that there is no genuine issue as to any material fact and “the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Avia Group Int’l, Inc. v. L.A. Gear Calif., Inc., 853 F.2d 1557, 1561 (Fed.Cir.1988) (where there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law). The moving party, in this case, defendant, bears the initial burden of demonstrating the absence of material issues of fact. Celotex, 477 U.S. at 323, 106 S.Ct. 2548.

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253 F. Supp. 2d 801, 2003 U.S. Dist. LEXIS 4601, 2003 WL 1606082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bonesmo-v-nemours-foundation-ded-2003.