DOVER, Del. (Legal Newsline) – Health care providers can argue a lawsuit over a man’s death from colon cancer was filed too late, as the Delaware Supreme Court has rejected arguments that their once-every-five-years advice on colonoscopies was continuing medical negligence.
The Feb. 15 decision instructs a trial judge to determine the date of the injury leading to the lawsuit filed by the estate of William King while giving GI Associates of Delaware and Advance Endoscopy Center some ammo to the fight the case.
King’s visited Dr. Natwarlal Ramani, also a defendant, in 2011 for a colonoscopy. Ramani recommended he return for another in three to five years.
King came back five years later but a cancerous growth in his colon was found. He died a few months later.
The ensuing lawsuit said Ramani was negligent in telling King he didn’t need another colonoscopy for as long as five years, given King’s medical history.
The state Superior Court found that the continuous negligent medical treatment doctrine applied to the case and said the two-year statute of limitations did not begin to run until March 2016, when the cancer was discovered.
But the Supreme Court has determined that doctrine doesn’t apply, leaving plaintiffs to come up with another theory as to why the 2018 lawsuit was filed within the statute of limitations.
“(T)here is no allegation that any negligence was associated with the colonoscopy Dr. Ramani attempted to perform on March 26, 2016, or that he was negligent in any way on that occasion,” Justice James Vaughn wrote.
“The March 26, 2016, procedure, therefore, is not an act in a continuum of negligent medical treatment.”
The defendants want the court to declare that the date of the alleged negligent act, which would have been the original colonoscopy in 2011, is when the injury occurred, meaning the lawsuit filed seven years later was too late.
The Superior Court has ruled King’s injury did not occur at the time of the alleged breach of standard of care.
“That finding appears to be supported by the evidence. The April 2011 colonoscopy revealed only benign tumors. Under these facts, it appears that the injury occurred later, sometime after Dr. Ramani gave his allegedly negligent advice,” Vaughn wrote.
“This is an unusual case, therefore, where the date of the negligent act and the occurrence of the injury do not coincide.”