Plauche v. Doctors for Emergency Services, et al.
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William C. Carpenter, Jr. Judge 500 N. King Street Suite 10400 Wilmington, DE 19801 (302) 255-0670 August 30, 2002 Ben Castle, Esquire 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 Neilli Mullen Walsh, Esquire 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391 RE: Dennis D. Ferri, Esquire 222 Delaware Avenue P.O. Box 2306 Wilmington, DE 19899 Mason E . Turner, Esquire 1310 King Street P.O. Box 1328 Wilmington, DE 19899 Barb ara Pla uche v. Do ctors fo r Em ergen cy Se rvices , P.A., et a l. C.A. No. 99C-07-115 WCC Submitted: June 27, 2002 Decided: August 30, 2002 On Plaintiff s Motion for New Trial. Denied. On D efen dan ts M otion for C osts. Gran ted in p art. Dea r Cou nsel: The Cou rt has b efore it a request by the Plaintiff for a new trial as well as a request for costs filed on behalf of the Defendants. This is the Court s decision on those outstanding motions. This matter was a classic case of the patient, trained as a nurse, knowing too much for her own good and as a result, failing to follow the reasonable directions of the doctors as to he r trea tmen t and diag nosti c testin g. Wh ile the C ourt is s ymp athetic to the condition that the Plaintiff now finds herself, it cannot find the jury s verdict to be unreasonable or against the great weight of the evidence. As such, the Plaintiff s Motion for New Trial w ill be denied. The Plaintiff was injured on October 31, 1998, while attempting to move furniture. She went to the hospital and was diagnosed as having a compressed frac ture of her L-1 vertebrae that would heal with bed rest and medication. She was discharged from the hospital with directions to contact her family physician. The following Monday, November 2, 1998, she was seen by Dr. Berlin and he concurred with the diagnosis that had been rend ered at the hosp ital an d ord ered bed rest a nd p resc ribed pain med icatio n. The next day, November 3, 1998, the Plaintiff returned to Dr. Berlin s office because of continual pain, and while her diagnosis remained the same, he ordered, mainly to satisfy the complaints of the Plaintiff, a CT scan. Unfortunately for the Plaintiff, she failed to keep the CT scan appointment, allegedly due to the amount of pain she was experiencing at the time. She did not notify Dr. B erlin of her ina bility to k eep th e app ointm ent, an d the c alls to the doctor during this period of time centered around pain and medication issues. It also appears that the Plaintiff was not following the doctor s advice about bed rest and subse quen tly fell. Dr. Berlin arran ged fo r visiting nurse s to go to the Plaintiff s home beginning around November 11, 1998. Between November 11, 1998 and November 18, 1998, the Plaintiff s condition contin ued to deteriorate, and the Plaintiff began to increase her pain medication. This eventually lead to an overdose condition and hospitalization on November 18, 1998. Because of a prior aneurysm and her confused state, a CT scan of her head was ordered at the hospital which proved to be negative. She was given medication to reverse the overdose condition and was released. On Novem ber 19, 1998, Dr. Berlin was advised of the emergency room visit and evaluation and was also misinformed that a CT scan of her back, not her head, had been performed. On November 23, 1998, the Plaintiff was again admitted into the hospital where the burst fracture was discove red and surgery was s ubse quen tly perf orm ed. First, it is important to note that there is no claim or evidence to suggest that the initial diagnosis of the compressed fracture on October 31, 1998 was incorrect. As such, it is the Plaintiff s assertion that her deterio rating c onditio n sho uld ha ve ca used Dr. B erlin to take additional corrective action, perform additional testing and to refer her to other specialists. Obviously the Plaintiff s failure to obtain the CT scan of her lower b ack on Page 2 November 9th prevented the disclosure of potentially critical information, and her failure to follow the dire ctions o f her tre ating physicians contributed to the subsequent burst fractu re. However, the real issue at trial was whether Dr. Berlin s assessment met th e applic able standard of care in the diagnosis of the Plaintiff s condition. This issue was clearly presented to the jury by counsel and defined for them in the Court s instructions, and the factual dispute was resolved by the jury in favor of the doctor. There was evidence introduced that was consistent with the jury s conclusion including supporting medical opinions, and there is no ba sis to reverse that decision. The insertion of the Foley catheter pointed to by the Plaintiff reaso nably appeared to the doctor to be a convenience issue for the Plaintiff and was done by her outside of the treatment ordered by Dr. Berlin or any doctor at the emergency room. Her inability to ambulate was a logical extension of the Plaintiff s over m edica ting he rself w hich subsequently lead to her hospitalization for an overdose. In addition, by November 19, 1998, Dr. Berlin had receiv ed co nfirm ation o f his initial evaluation by the fact that he was told, although mistakenly, that a CT scan of her back had been performed with negative results. Under these circumstances, it was reaso nable to find D r. Berlin had m et the app licable standard of care and there was no requirement for him to order additional evaluations or modify the treatmen t he had prescribed. If there is any criticism of Dr. Berlin it would only be his perceived impatience with a difficult patient. He obviously was frustrated by her failure to comply with his directions, and at some point, it appears he began to m inimiz e her c omp laints. Th is however does not equate to being negligent a nd to a large d egree the Pla intiff ha s only herse lf to blam e for th is occu rring. As a result, the Court finds the jury s decision to be supported by the evidence and the Plaintiff s Motion for New Trial is denied. The Court also has before it Motions filed by Dr. Berlin and Doctors for Emergency Services for costs. While the imposition of costs is routine, there is discretion given to the Court regarding the amo unt to award.1 While the Court recognizes the Plaintiff s financial condition place s limitatio ns on her ab ility to pay , this alone does not preclude the imposition of rea sona ble costs associated with defending a lawsuit which was initiated by the losing party. There are risks involved when one pursues litigation, and the imposition of costs is a reasonable tool to balance the expense associated with defending a lawsuit that is subse quen tly foun d to be without merit. The Court has reviewed the submissions of the Defendant s experts and the following costs are order ed to b e paid by the Plaintiff . As to Dr. Wehner, the Court finds fees associated with preparation and testimony to be reaso nable and thus costs of $1,000.00 are approved. The remaining balance of $6 00 rela tes to travel and will not be ordered. As to Dr. F unk, th e Co urt find s the $ 500 f ee ass ociated with preparation to be clearly reasonable and appropriate. It is however concerned about the 1 See Donovan v. Delaware Water & Air Resources Com n, 358 A.2d 717, 723 (Del. 1976); Del. Code Ann. Tit. 10, ยง 8906 (1999). Page 3 testimony fee of $2,700.00. While the Cou rt believes that Dr. Funk s representation of 6 3/4 hour s of co urtho use tim e is cor rect, it is also clear that most of this time does not rela te to his testimony in the courtroom. It is not reasonable for the Plaintiff to pay for the doctor s time that is more fairly associated with his availability to Defendant s counsel and relates to the timing of the presentation of the Defendant s case. As su ch, the Court approves a preparation fee of $500.00 and a court fee of $1,200.00 (3 hours at $400 per hou r) for a tota l cost o f $1,7 00.0 0. The Court believes this resolves all outstanding motions in this case. IT IS SO ORDERED. Sincerely yours, Judge W illiam C. Carpenter, Jr. WCCjr:twp cc: Prothonotary Page 4
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