Azarbal v. Medical Center of Delaware, Inc.

• Decision Date: 07 November 1989
• Docket Number: Civ. A. 88-451-CMW.
• Citation: 724 F. Supp. 279
• Parties: Said AZARBAL and Diana Azarbal, Administrators of the Estate of Sima Ashley Azarbal; Said Azarbal and Diana Azarbal, Individually, Plaintiffs, v. The MEDICAL CENTER OF DELAWARE, INC., a corporation of the State of Delaware; J. Joaquin Palacio, M.D., P.A., a Delaware professional association, and J. Joaquin Palacio, M.D., Defendants.
• Court: U.S. District Court — District of Delaware

724 F. Supp. 279

Said AZARBAL and Diana Azarbal, Administrators of the Estate of Sima Ashley Azarbal; Said Azarbal and Diana Azarbal, Individually, Plaintiffs, v. The MEDICAL CENTER OF DELAWARE, INC., a corporation of the State of Delaware; J. Joaquin Palacio, M.D., P.A., a Delaware professional association, and J. Joaquin Palacio, M.D., Defendants.

Civ. A. 88-451-CMW.

United States District Court, D. Delaware.

November 7, 1989.

Ben T. Castle, and Melanie K. Sharp, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiffs.

John A. Parkins, Jr., of Richards, Layton & Finger, Wilmington, Del., for defendant, The Medical Center of Delaware, Inc.

John A. Elzufon, and Marla F. Dufendach, of Elzufon & Associates, P.A., Wilmington, Del., for defendants J. Joaquin Palacio, M.D. and J. Joaquin Palacio, M.D., P.A.

OPINION

CALEB M. WRIGHT, Senior District Judge.

This action is a medical malpractice and wrongful death suit brought in 1988 by Said and Diana Azarbal, both individually and as administrators of the estate of Sima Ashley Azarbal, against Dr. J. Joaquin Palacio¹ and the Medical Center of Delaware.² The original complaint alleges that the defendants' negligence resulted in injury to and ultimately the death of plaintiffs' daughter. The plaintiffs now move to amend their complaint. This court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1).

FACTUAL BACKGROUND

On August 12, 1986, Dr. Palacio performed an amniocentesis on Diana Azarbal at the Medical Center of Delaware. Amniocentesis is a procedure performed on a pregnant woman whereby a physician inserts a needle through the woman's abdominal wall into the amniotic sac containing the fetus. The physician then removes some amniotic fluid and studies it. See 1 J.E. Schmidt, M.D., Attorneys' Dictionary of Medicine and Word Finder A-175 (1986). The plaintiffs allege that the needle the doctor used for the procedure entered the skull of the fetus. On January 23, 1987, the baby was delivered at the Medical Center by a caesarian section performed by Dr. Palacio. Immediately following the delivery, Dr. Palacio performed a tubal sterilization on Ms. Azarbal.³ The baby was born with brain damage, and died on August 21, 1987.

Plaintiffs filed their complaint in this action on August 12, 1988, exactly two years after the amniocentesis was performed. The complaint alleges that the defendants were negligent in the performance of the amniocentesis.⁴ The complaint seeks damages for the child's injuries and for the parents' injuries resulting from the child's illness and death. On April 10, 1989, the plaintiffs filed this motion to amend the complaint. Plaintiffs seek to amend the complaint in six respects. First, the plaintiffs seek to add a claim against Dr. Palacio for failing to obtain the informed consent of Ms. Azarbal prior to performing the amniocentesis. Second, the plaintiffs wish to claim that Dr. Palacio failed to obtain Ms. Azarbal's informed consent for the tubal sterilization. Third, the plaintiffs seek to add a punitive damages claim against Dr. Palacio stemming from the allegation of lack of informed consent to the sterilization. Fourth, the plaintiffs wish to allege that the Medical Center rendered negligent care to the infant after her birth in that the hospital failed to monitor, recognize, and treat the infant's condition. Fifth, the plaintiffs seek to make several minor, technical changes to the complaint. Sixth, the plaintiffs wish to clarify the claims they are making by distinguishing the claims brought as administrators of their daughter's estate from the claims brought as individuals.

For the reasons discussed below, this court will grant plaintiffs' motion to amend the complaint with the claim of negligent post-birth care by the hospital, but only as that claim relates to damages sought on behalf of the infant. The court grants plaintiffs' motion to amend in all other respects.

DISCUSSION

Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a complaint "shall be freely given when justice so requires." There is a general presumption in favor of allowing a party to amend its pleadings. Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir.), cert. denied, 469 U.S. 871, 105 S.Ct. 221, 83 L.Ed.2d 150 (1984). A court may deny an amendment, however, if there has been undue delay by the movant, if there has been bad faith on the part of the movant, or if the opposing party would suffer undue prejudice as a result of allowing the amendment. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir.1984), cert. denied, 469 U.S. 1122, 105 S.Ct. 806, 83 L.Ed.2d 799 (1985). A court may also deny an amendment if the amendment would be futile in that it would not withstand a motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983); Satellite Financial Planning Corp. v. First National Bank, 646 F.Supp. 118, 120 (D.Del.1986); see Foman v. Davis, 371 U.S. at 182, 83 S.Ct. at 230; see also Middle Atlantic Utilities Co. v. S.M.W. Development Corp., 392 F.2d 380, 385 (2d Cir.1968) ("It is normally proper for the trial judge to consider the statute of limitations on a motion to amend. To delay until there is a later motion to dismiss because the claim is time-barred would be a wasteful formality.").

The defendants raise several objections to the proposed amendments. First, Dr. Palacio asserts that the proposed amendment regarding lack of informed consent to the amniocentesis would be futile in that it is barred by the statute of limitations. Second, Dr. Palacio contends that the proposed amendment regarding informed consent for the tubal sterilization would also be futile on statute of limitations grounds. Third, Dr. Palacio claims that the punitive damages claim would be futile in that the plaintiffs would be unable to establish the requisite state of mind. Fourth, the Medical Center alleges that there was an undue delay in raising the claim regarding postbirth care; that the claim would result in prejudice to the Medical Center; and that the claim would be futile in that it is barred by the statute of limitations.⁵

LACK OF INFORMED CONSENT TO THE AMNIOCENTESIS

The court will first address the propriety of allowing the amendment alleging lack of informed consent to the amniocentesis.⁶ Dr. Palacio contends that this amendment would be futile because it is barred by the statute of limitations. The limitations period for bringing medical malpractice actions is two years. Del.Code Ann. tit. 18, § 6856 (Supp.1988). Since the amniocentesis occurred more than two years before the motion to amend was filed, the informed consent claim would be barred were it not for Federal Rule of Civil Procedure 15(c). Rule 15(c) states that "whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading." Fed.R.Civ.P. 15(c).⁷ Dr. Palacio does not dispute the fact that the informed consent claim arises out of the same transaction as the amniocentesis, and thus relates back to the date of the complaint. However, Dr. Palacio asserts that the claim would have been time-barred when the original complaint was filed because any informed consent should have occurred prior to the date of the amniocentesis, placing this claim just outside the two-year limitations period.

This court finds that the informed consent claim is not time-barred. In Williamson v. Gopez, 1986 WL 1270, the Delaware Superior Court noted that informed consent for a surgical procedure should have occurred on or before the date of the surgery. No. 83C-DE-23 at 6 (Del.Super. Jan. 10, 1986). The court stated that the two-year limitations period for the informed consent claim began to run on the date of the surgery. Id. The plaintiffs' informed consent claim in this case is thus not time-barred as it dates to exactly two years before the original complaint was filed.⁸ Since the claim is not futile, this court will allow the plaintiffs to amend the claim to the complaint.

LACK OF INFORMED CONSENT TO THE STERILIZATION

Plaintiff's second proposed amendment is the claim that Dr. Palacio failed to obtain the informed consent of Ms. Azarbal prior to the sterilization. Specifically, the proposed amendment alleges that Dr. Palacio failed to inform Ms. Azarbal prior to the sterilization that her fetus had probably been injured by the amniocentesis. Dr. Palacio contends, however, that this amendment would be futile because it is barred by the statute of limitations.

The sterilization occurred on January 23, 1987, just after the birth of Ms. Azarbal's baby. The amendment was filed on April 10, 1989, more than two years later, and thus would be time-barred based on that date. However, plaintiff seeks to have this claim relate back to the date of the original complaint so that it would fall within the two-year period. As stated above, a proposed amendment relates back to the date of the original pleading if it arises from the same conduct, transaction, or occurrence. Fed.R.Civ.P. 15(c). This court has held that the most important factor in determining if a proposed amendment relates back to a prior pleading is whether the earlier pleading gave the other party adequate notice of the occurrence forming the basis for the amended claim. Hill v. Equitable Bank, 599 F.Supp. 1062, 1071 (D.Del.1984). This court finds that the original complaint gave Dr. Palacio adequate notice of the basis of the claim regarding lack of informed consent to the sterilization. The lack of informed consent claim, like the claim set forth in the original complaint, involves Dr. Palacio's behavior with respect to the amniocentesis. The original complaint alleges that Dr....