Lisa L. Maeyer

Key Points:

• The phrase “injury occurred” in Delaware Code Title 18 Section 6856 means the date when the wrongful act or omission occurred, not when the claimant discovered the act.
• The continuous negligent treatment doctrine applies in cases where there is a continuum of negligent treatment and the statute of limitations commences on the date of the last act in the negligent continuum.
• The continuing treatment doctrine applies in cases where there was an initial act of negligent treatment but no negligence “continuum,” but is not recognized in Delaware.
• Where the injury coincides with the negligence is when the “injury occurred.” But under the unique facts of Anderson, the injury did not arise at the time of negligence, so the Superior Court should make a factual determination regarding when the injury occurred for application of the statute of limitations.

The statute of limitations for a medical negligence case in Delaware is two years, commencing on the date of injury or, alternatively, three years, if the injury is unknown to the injured person and cannot be discovered through reasonable diligence within two years of the injury date. GI Assocs. of Del., P.A. v. Anderson, 247 A.3d 674 (Del. 2021); see also 18 Del. C. § 6856. The Delaware Supreme Court recently discussed two doctrines that inform the determination of when the statute of limitations commences: (1) the continuous negligent medical treatment doctrine; and (2) the continuing treatment doctrine. Anderson, 247 A.3d at 677.

The continuous negligent medical treatment doctrine applies in cases where there was a continuous course of improper treatment so intertwined that it would be illogical to break it up into individual acts of negligence. Ewing v. Beck, 520 A.2d 653, 662 (Del. 1987). The statute of limitations begins on the date of the last negligent act in the continuum of negligent medical care. Thus, a plaintiff is permitted to bring suit for the consequences of the entire course of negligent conduct. However, under the continuous negligent medical treatment doctrine, the plaintiff must allege there was negligence on the date they claim the statute of limitations to have commenced.

By contrast, the continuing treatment doctrine applies in cases where there was an initial act of negligent treatment but no negligence “continuum,” like under the continuous negligent medical treatment doctrine. Under the continuing treatment doctrine, the statute of limitations begins on the date of the last act of treatment related to the initial negligence, regardless of whether or not the last act itself was negligent. Whereas the continuous negligent medical treatment doctrine is limited to the last act in the negligent continuum, the continuing treatment doctrine is more flexible and reaches to the last act in the treatment. Benge v. Davis, 553 A.2d 1180, 1183 (Del. 1989) (citing Ewing, 520 A.2d at 663, n.11). Unlike under the continuous negligent medical treatment doctrine, it does not matter whether negligence continued throughout the entire course of treatment under the continuing treatment doctrine.

Delaware recognizes the continuous negligent medical treatment doctrine, but not the continuing treatment doctrine because “injury occurred” in § 6856 means the date of occurrence, not of discovery. The first Delaware case to address an equitable tolling doctrine in medical negligence cases was Layton v. Allen, 246 A.2d 794 (Del. 1968), where the court held that when an individual sustains an unknowable injury and the harmful effect develops gradually over time, the injury is “sustained” when the harmful effect first manifests itself and becomes physically ascertainable. This open-ended statute of limitations led to a medical malpractice plight, and the Delaware legislature responded by enacting Delaware Code Title 18 Section 6856. In the first case applying the language of Title 18 of Delaware Code Section 6856, Dunn v. St. Francis Hospital, Inc., 401 A.2d 77 (Del. 1979), the Delaware Supreme Court established that under the language of Delaware Code Title 18 Section 6856, “injury occurred” means the date when the wrongful act or omission occurred, not when the act was discovered.

Twenty-one years later in Meekins v. Barnes, 745 A.2d 893 (Del. 2000), the court determined that an act of omission is a valid basis for a medical malpractice claim, but only if that act of omission occurs in the context of another affirmative act, such as failing to diagnose breast cancer at a mammogram appointment. Nine years after Meekins, the court held in Dambro v. Meyer, 974 A.2d 121 (Del. 2009), that the phrase “injury occurred” in Section 6856 refers to the date when the wrongful act or omission occurred, such as the day treatment was delayed and on which a cancer diagnosis could have been made.

In the recent Anderson case, a doctor performed a colonoscopy on the late Mr. William King on April 4, 2011. At a follow-up visit on April 26, 2011, the doctor recommended that Mr. King return for his next colonoscopy in three to five years. Mr. King returned for a colonoscopy within five years—on March 26, 2016—but the colonoscopy could not be completed because a cancerous growth had formed in Mr. King’s colon. He died a few months later. A wrongful death action was filed on April 16, 2018, which claimed that the colonoscopy recommendation that had been made on April 26, 2011, was negligent. Following the doctor’s motion for summary judgment based upon the statute of limitations, the plaintiffs successfully argued that the continuous negligent medical treatment doctrine applied, and the trial court held that the statute of limitations had commenced on March 26, 2016, when the follow-up colonoscopy was performed and the injury was discovered. On appeal, however, the Delaware Supreme Court held that the continuous negligent medical treatment doctrine did not apply because the plaintiffs did not allege negligence in association with the attempted procedure on March 26, 2016.

The court further concluded that the plaintiffs claimed a single act of alleged medical negligence that occurred on April 26, 2011. Under the unique facts in Anderson, the injury did not appear to arise at the time of the alleged breach of the standard of care. Therefore, because Delaware does not recognize the continuing treatment doctrine and the facts in Anderson did not fall under the continuous negligent medical treatment doctrine, the Delaware Supreme Court reversed and remanded to the Superior Court, where the defendants are free to pursue their statute of limitations defense. The Superior Court has been instructed to factually determine the date of injury for purposes of application of the statute of limitations.

*Brad is a shareholder and the supervising attorney for Health Care Liability Group in our Wilmington, Delaware, office. He can be reached at 302.552.4328 or bjgoewert@mdwcg.com. Lisa Maeyer, a law clerk in our Wilmington office, also contributed to this article.

_{Defense Digest, Vol. 27, No. 4, September 2021 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2021 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}