McClements v. Kong

820 A.2d 377, 2002 Del. Super. LEXIS 235, 2002 WL 31167507
CourtSuperior Court of Delaware
DecidedSeptember 30, 2002
DocketC.A. No. 99C-03-044-JTV
StatusPublished
Cited by3 cases

This text of 820 A.2d 377 (McClements v. Kong) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McClements v. Kong, 820 A.2d 377, 2002 Del. Super. LEXIS 235, 2002 WL 31167507 (Del. Ct. App. 2002).

Opinion

OPINION

VAUGHN, Resident Judge.

Defendant Picker International Sales Corporation (“Picker”) seeks summary judgment on the ground that the plaintiffs claim against it is barred by the statute of limitations. The plaintiff underwent a cranial CT scan after he was involved in an automobile accident. The doctor who performed the scan interpreted it as showing a large subdural hematoma. As a result of this finding, a craniotomy was performed. The operation revealed that there was no subdural hematoma and the craniotomy had been done unnecessarily. The plaintiff filed suit within the statute of limitations against the doctor who interpreted the scan and the radiology group with which she was associated, alleging medical negligence on her part. During her deposition, which was taken after the expiration of the statute of limitations as measured from the date of the craniotomy, the doctor who read the scan attributed the error to an unusual characteristic of the scan unit which caused a false indication of a subdural hematoma. The plaintiff then brought suit against Picker, the manufacturer of the unit, alleging various forms of negligence. The issue is whether the “time of discovery” rule allows the plaintiff to bring suit against Picker after the otherwise normal expiration of the statute of limitations.

STANDARD OF REVIEW

Summary judgment should be rendered if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.1 The facts must be viewed in the light most favorable to the non-moving party.2 Summary judgment may not be granted if the record indicates that a material fact is in dispute, or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of the law to the circumstances.3 However, when the facts permit a reasonable person to draw but one inference, the [379]*379question becomes one for decision as a matter of law.4

THE FACTS

On April 11, 1997, the plaintiff, Francis T. McClements, was injured in an automobile accident. He was taken to Kent General Hospital where a full field cranial CT scan was performed using a PQ 2000 CT System designed and manufactured by Picker. When the scan was done, he was on a backboard. Victoria E. Kong, M.D., the interpreting radiologist, reviewed the cranial CT scan and concluded that the scan showed a large subdural hematoma. Based upon Dr. Kong’s finding, Dr. Naray-an, the attending neurosurgeon, performed a craniotomy. He found that the plaintiff did not have a subdural hematoma. The doctors contacted a Picker service representative, who could find nothing wrong with the machine. They then contacted a Picker manufacturer’s office. A representative from that office informed them that a full field scan of a patient on a backboard can produce an artifact, or false positive, for a subdural hematoma. Neither the doctors at Kent General Hospital nor even the Picker service representative were aware of this machine characteristic. Within a week of the operation, the doctors concluded that what Dr. Kong thought was evidence of a subdural hematoma was, in fact, an artifact consistent with the information given them by the manufacturer’s representative.

Picker was well aware prior to April of 1997 that the CT scan unit could produce an artifact if a patient was given a full field scan while on a backboard. In fact, it had been aware of the problem for about four years. It received written complaints of the problem in August 1993, June 1994 and March 1995. The March, 1995 complaint specifically warned Picker of the danger that a patient may undergo an unnecessary craniotomy based upon a mistaken belief that an artifact would be read as a subdural hematoma. In 1995 Picker prepared a Clinical Equipment Update specifically warning users of the CT scan unit of the problem. However, the Update was never sent to Kent General Hospital. Even after it became aware of the plaintiffs operation, Picker still took no steps to notify at least one other Delaware hospital which owned the same Picker CT scan unit of the problem.

In a follow up visit shortly after the procedure, Dr. Narayan told the plaintiff that his craniotomy was unnecessary and that there had been a shadow on his x-ray film which the radiologist had mistaken for a subdural hemorrhage. Dr. Narayan made no mention of the Clinical Equipment Update or of Picker at all.

After the follow up visit with Dr. Naray-an, there was no further contact between Mr. McClements and Dr. Narayan or Dr. Kong. On August 13, 1998, counsel for the plaintiff wrote a demand letter to the risk manager for Kent General Hospital, which went unanswered.

Plaintiff filed suit against Dr. Kong and Kent Diagnostic Radiology Associates, Inc., on March 30, 1999. When her deposition was taken on January 12, 2000, Dr. Kong explained what the doctors had learned in the days following Mr. McCle-ments craniotomy and attributed the error to the artifact on the CT scan. This was the first that the plaintiff became aware that the shadow on the scan was an artifact caused by a problem with the machine and that the defendants were placing blame for the incident on Picker. The plaintiff then filed suit against Picker on March 29, 2000.

[380]*380DISCUSSION

Picker initially moved for summary judgment on the grounds that the plaintiffs claim is barred by the statute of limitations shortly after suit was filed. That motion was denied, without prejudice, to allow the parties to develop a full factual record. In this renewed motion, Picker continues to argue that the “time of discovery” rule does not apply and that the plaintiffs suit was not brought within the applicable statute of limitations. In response, the plaintiff argues that he did file suit within the statute of limitations under the “time of discovery rule,” that the plaintiff could not be expected to know or suspect that the unit itself may have been a cause of his injury until he learned it at Dr. Kong’s deposition, that Picker’s failure to disclose the problem to its customers could be considered willful and wanton, and that Picker should not be permitted to benefit from its cover-up of the problem with its scan unit.

The parties agree that the applicable statute of limitations is 10 Del. C. § 8119, which reads as follows:

No action for the recovery of damages upon a claim for alleged personal injuries shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged injuries were sustained; subject, however, to the provisions of § 8127 of this title.

Under the time of discovery rule, if an injury is “inherently unknowable” and a plaintiff is blamelessly ignorant of the wrong and injury complained of, the injury is sustained and the statute begins to run when the “harmful effect first manifests itself and becomes physically ascertainable.”5 In this case, the plaintiffs injury — a needless craniotomy — was known to the plaintiff shortly after the procedure.

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Cite This Page — Counsel Stack

Bluebook (online)
820 A.2d 377, 2002 Del. Super. LEXIS 235, 2002 WL 31167507, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcclements-v-kong-delsuperct-2002.