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In an interlocutory appeal of a medical malpractice action, the court considered whether a doctor owed a duty of care to a patient after the doctor referred the patient to a specialist. The patient allegedly suffered serious injuries as a result of the specialist's negligence. The court held that the referring doctor had no duty to the patient at the time of her injury and that the referring doctor's alleged negligence was not the proximate cause of the patient's injury. Accordingly, the Superior Court correctly granted summary judgment in the referring doctor's favor.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF DELAWARE
DEBORAH L. SPICER, individually §
and as Parent and Natural Guardian of§
BRITTANY SPICER, a minor,
ABIMBOLA OSUNKOYA, M.D., §
and DELAWARE PRIMARY
No. 102, 2011
Court Below: Superior Court
of the State of Delaware,
in and for New Castle County
C. A. No. 08C-04-218
Submitted: September 21, 2011
Decided: November 15, 2011
Before BERGER , JACOBS, and RIDGELY, Justices.
Upon appeal from the Superior Court. AFFIRMED.
Gilbert F. Shelsby, Jr., Esquire (argued) and Robert J. Leoni, Esquire, Shelsby &
Leoni, Stanton, Delaware for Appellants.
John D. Balaguer, Esquire, White and Williams LLP, Wilmington, Delaware for
In this interlocutory appeal of a medical malpractice action, we consider
whether a doctor owes a duty of care to a patient after the doctor has referred the
patient to a specialist. The patient does not allege that the referring doctor knew or
should have known that the specialist was incompetent. After the referral, the first
doctor had no further involvement in the treatment or care of the patient, and the
specialist decided on a treatment without any reliance on the first doctor’s medical
records or diagnosis. The patient allegedly suffered serious injuries as a result of the
specialist’s negligence. Based on these undisputed facts, we hold that the referring
doctor had no duty to the patient after the referral. Accordingly, we affirm the trial
court’s grant of summary judgment.
Factual and Procedural Background
Deborah Spicer brought this action on behalf of her daughter, Brittany Spicer,
who suffered anoxic brain injury following a tonsillectomy performed by Dr. Stephen
Cooper, an ear, nose and throat (ENT) specialist. Spicer alleges, among other things,
that Cooper performed unnecessary surgery and prescribed an excessive amount of
Oxycodone for post-operative pain. The overdose of Oxycodone allegedly caused
respiratory depression, which caused the brain damage.
Brittany’s family practitioner, Dr. Abimbola Osunkoya, started treating
Brittany in November 2003. In January 2004, August 2005, and March 2007,
Osunkoya treated Brittany for a sore throat, among other symptoms. During the last
examination, Osunkoya noted that Brittany’s tonsils were large and red.
diagnosed Brittany as suffering from recurrent tonsilitis and referred her to Cooper.
Following the referral, Osunkoya neither treated Brittany again nor consulted with
In late March 2007, Brittany met with Cooper, who collected a medical history
from Brittany and her stepfather. Cooper testified that he based his diagnosis of
chronic recurrent tonsillitis entirely on the medical history he obtained from the
family. He did not rely on Osunkoya’s diagnosis at all. Cooper recommended a
tonsillectomy, which was performed one month later. At the time that the surgery
was scheduled, Cooper sent Osunkoya a letter informing him that Cooper was going
to perform a tonsillectomy based on Brittany’s history of chronic tonsillitis and
multiple episodes of strep throat. Osunkoya did not respond to Cooper’s letter.
Osunkoya moved for summary judgment on the grounds that: 1) after the
referral he no longer owed Brittany any duty; and 2) his referral to Cooper was not
a proximate cause of Brittany’s injuries. The Superior Court granted the motion on
both grounds. This appeal followed.
Spicer alleges that Osunkoya was negligent in the following respects: 1) he
referred Brittany to Cooper without objective evidence to support Osunkoya’s
diagnosis of recurrent tonsilitis; 2) he failed to conduct appropriate tests and physical
examinations before diagnosing Spicer; and 3) he failed to ensure that Cooper
received Brittany’s complete and accurate medical history.1 To state a medical
negligence claim, one must allege that a medical provider breached a duty owed to
the plaintiff, and that the medical provider’s act or omission was a proximate cause
of the plaintiff’s injury.2 In Delaware, proximate cause is defined as “that direct cause
without which the accident would not have occurred.”3
The first issue is whether Osunkoya owed any duty to Spicer after the referral
to Cooper. Other jurisdictions consistently hold that, in circumstances like those
presented here, the original physician has no duty after the referral:
It seems to be the universal rule that a physician who . . . refers a
patient to a specialist because the patient’s ailment is or may be
Spicer includes the additional claim that Osunkoya negligently failed to respond to Cooper’s letter,
which stated that Spicer suffered from chronic tonsillitis and chronic sore throats. This is but
another version of the claim that Osunkoya failed to provide Cooper a complete and accurate medical
Spencer v. Goodill, 17 A.3d 552, 554 (Del. 2011).
Chudnofsky v. Edwards, 208 A.2d 516, 518 (Del. 1965).
outside his field of competence, is not liable for the negligence of
the physician to whom referral is made.4
The holding would be different if the original physician had reason to know that the
specialist was incompetent, or the original physician acted in concert with the
It is generally held that a physician who calls in or recommends
another physician or surgeon is not liable for the other’s
malpractice, at least where there is no agency or concert of action,
or no negligence in the selection of the other physician or surgeon
. . . . [V]icarious liability has been recognized where the
physicians are jointly employed or acting jointly in the case.5
But the undisputed facts in this case confirm that Osunkoya had no direct or indirect
involvement in Spicer’s care after referring her to Cooper. Accordingly, we hold that,
at the time of her injury, Osunkoya owed no duty to Spicer.
Spicer attempts to avoid this result by arguing that Osunkoya was negligent
before he referred her to Cooper. She alleges that Osunkoya did not conduct
appropriate tests to determine Spicer’s illness; he misdiagnosed her; and he failed to
maintain, or provide to Cooper, accurate medical records. The problem with this
argument is that Spicer does not allege that she suffered any harm prior to the
Wentling v. Jenny, 293 N.W.2d 76, 82 (Neb. 1980).
Stovall v. Harms, 522 P.2d 353, 357 (Kan. 1974). See, also: Tramutola v. Bortone, 304 A.2d 197,
200-201 (N.J. 1973); Crump v. Piper, 425 S.W.2d 924, 928 (Miss. 1968); Sprinkle v. Lemley, 414
P.2d 797, 800 (Ore. 1966).
tonsillectomy. Indeed, it was not until after the tonsillectomy that Spicer alleges she
suffered brain damage, by taking an improperly prescribed dose of the post-operative
pain killer. Because Osunkoya owed no duty to Spicer at the time she allegedly was
harmed, and because there is no allegation that Osunkoya’s alleged failings caused
any harm, this argument fails.
Although Spicer tacitly concedes that Osunkoya did not harm her directly, she
argues that Osunkoya’s negligence precipitated the chain of events that led to Spicer’s
brain injury. Her theory is that, if Osunkoya had not negligently diagnosed her as
having recurrent tonsilitis, then: 1) he would not have referred her to Cooper;
2) Cooper would not have performed the tonsillectomy; and 3) Spicer would not have
taken any post-operative drugs. Thus, Spicer argues that the issue is whether
Osunkoya’s negligence was a proximate cause of her injury – generally a question for
Delaware courts follow the “but for” definition of proximate cause. “[A]
proximate cause is one which in natural and continuous sequence, unbroken by any
efficient intervening cause, produces the injury and without which the result would
not have occurred.”6 A remote cause cannot form the basis of liability, even if the
plaintiff would not have been injured “but for” that negligence:
A prior and remote cause cannot be made the basis of an action if
such remote cause did nothing more than furnish the condition or
give rise to the occasion by which the injury was made possible
if there intervened between such prior or remote cause and the
injury a distinct, successive, unrelated and efficient cause of the
injury even though such injury would not have happened but for
such condition or occasion.7
Stated another way:
[W]hen . . . the court finds that full responsibility for control of
the situation and prevention of the threatened harm has passed to
[a] third person, his failure to act is then a superseding cause,
which will relieve the original actor of liability.8
Applying these principles to the undisputed facts, we conclude, as a matter of
law, that Osunkoya’s alleged negligence was not a proximate cause of Spicer’s injury.
When he referred Spicer to Cooper, Osunkoya transferred full responsibility for her
care. Cooper, acting independently, obtained Spicer’s medical history; made a
diagnosis; decided on a course of treatment; performed the tonsillectomy; and
Duphily v. Del. Elec. Coop. Inc.,662 A.2d 821, 829 (Del. 1995) (Internal citations and quotations
omitted; emphasis in original.).
McKeon v. Goldstein, 164 A.2d 260, 262 (Del. 1960) (Citation omitted.).
Restatement (Second) of Torts, §452 Comment f.
prescribed the Oxycodone. After the referral, Osunkoya owed Spicer no duty and any
alleged negligence before the referral was, at best, a remote cause of Spicer’s injury.
Accordingly, the Superior Court correctly granted summary judgment in his favor.
Based on the foregoing, the decision of the Superior Court is AFFIRMED.
Jurisdiction is not retained.