Hurtt v. Goleburn

• Decision Date: 19 November 1974
• Citation: 330 A.2d 134
• Parties: Nathaniel J. HURTT, Administrator of the Estate of Genevieve Hurtt, Deceased, Plaintiff Below, Appellant, v. Maurice GOLEBURN, Defendant Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 134

330 A.2d 134

Nathaniel J. HURTT, Administrator of the Estate of Genevieve

Hurtt, Deceased, Plaintiff Below, Appellant, v. Maurice GOLEBURN, Defendant Below, Appellee.

Supreme Court of Delaware.

Nov. 19, 1974.

Leonard L. Williams, Wilmington, for plaintiff below, appellant.

Victor F. Battaglia and Gary W. Aber, of Biggs & Battaglia, Wilmington, for defendant below, appellee.

Before DUFFY and McNEILLY, JJ., and BROWN, Vice Chancellor.

DUFFY, Justice:

This is an appeal from an order of the Superior Court granting summary judgment for defendant-physician in a medical malpractice (wrongful death) action.

I

Briefly stated, defendant diagnosed and prescribed treatment for viral gastro-enteritis in an eleven-year-old patient and it is alleged that the death was caused by a perforated appendix. The relevant time period of the physician-patient relationship extended from examination and diagnosis by defendant to the child's death some forty hours later. The morning after the diagnosis the child's parent called defendant and, in effect, reported that the child was 'getting worse'. Defendant ordered an increase in the medicinal dosage prescribed earlier and suggested that the parents wait and let the medicine take effect. No physical examination or test was made or recommended in response to the call.

The Superior Court concluded that '(t)he uncontroverted evidence before this Court is that defendant conformed to the medical standards which are adhered to by physician in good standing in the community' and, on that rationale, entered the judgment challenged here.

Plaintiff contends that summary judgment should not have been granted because the record shows conflicting expert medical opinions with correlative issues of material fact.

II

Superior Court Civil Rule 56(e) provides for a shifting of burden to the non-moving party when a motion for summary judgment is '. . . supported as provided in . . . (the) rule . . .'.

In the context of a negligence action 'supported' means that the moving party submitted proof that he had conformed to the requisite standard of care under the circumstances at issue. For present purposes that requires a showing, (a) as to the relevant medical standards adhered to by physicians in good standing in the community under like circumstances, and, (b) that defendant's conduct was in conformity with those standards. Cf. Peters v. Gelb, Del.Super., 303 A.2d 685 (1973); compare Christian v. Wilmington General Hospital Ass'n., Del.Supr., 135 A.2d 727 (1957). If the conduct is shown to have conformed to the standards, then the burden shifts to plaintiff to demonstrate on the record that there is a genuine issue for trial as to either the standards or the conduct. Until then, the non-moving party is not obliged to show that issues remain to be tried. Phillips v. Delaware Power and Light Company, Del.Supr., 216 A.2d 281 (1966); compare Davis v. University of Delaware, Del.Supr., 240 A.2d 583 (1968); see Holl v. Talcott, Fla., 191 So.2d 40 (1966).

Construing the facts in the present record in the light most favorable to plaintiff, as we must, Wilson v. Tweed, Del.Supr., 209 A.2d 899 (1965), it appears that there are two critical and separate occurrences in the pertinent time period which raise issues of negligence: (a) the original examination and diagnosis and, (b) the call next day informing defendant that the child had not improved and was 'getting worse'. We assume without deciding that the record made by defendant adequately states the community medical standards as to examination, diagnosis and treatment on the first day;...