Opinion
C.A. No. 07C-04-025 PLA.
Submitted: February 24, 2010.
Decided: February 25, 2010.
Upon Plaintiff's Motion for Reargument.
DENIEDThis 25th day of February, 2010, it appears to the Court that:
1. In this medical malpractice case, Plaintiff Letoni Wilson, on behalf of her son Tirese Johnson, alleges that Tirese developed kernicterus, a form of jaundice-related brain damage, as a result of Defendants' failure to properly evaluate and treat his yellowing skin as a warning sign of the elevated bilirubin levels. During the litigated events, Tirese was given an appointment with physician's assistant Michele Montague, who worked at New Castle Family Care with Tirese's then-pediatrician, Dr. Phyllis James. During Tirese's appointment on July 21, 2006, Montague conducted an examination that confirmed Wilson's report that Tirese had yellowing on his face and chest. Montague consulted with Dr. James, who allegedly instructed Montague that no testing or treatment was necessary. Approximately two days later, Tirese was taken to the hospital and diagnosed with hyperbilirubinemia. Despite the hospital's treatment attempts, Tirese developed kernicterus. Tirese has since received additional diagnoses stemming from the brain damage, including cerebral palsy and developmental delays.
2. By order dated February 19, 2010, this Court granted a motion in limine filed by Defendant Montague to exclude Plaintiff's proffered medical expert witness, Dr. Howard Bauchner, from testifying as to the standard of care applicable to a physician's assistant practicing in Delaware. The Court's decision was based upon Dr. Bauchner's expert report and his deposition, in which he admitted that he had assessed this case while under the mistaken assumption that Montague was a nurse practitioner, and was unfamiliar with physicians' assistants' scope of practice, training, or duties. The Court also rejected Plaintiff's argument that Dr. Bauchner was qualified to offer an opinion regarding a physician's assistant's standard of care because a pediatric physician's assistant is subject to the same standard as a pediatric physician.
3. Plaintiff now moves for reargument. In essence, Plaintiff reiterates her position that Montague was subject to the same standard of care as a pediatric physician because she possessed the statutory authority to provide care that would otherwise have been provided by a Board-certified pediatrician and exercised that authority by accepting Tirese's appointment. Plaintiff suggests that "[a]s a matter of public policy, this Court should conclude that when a physician's assistant accepts the responsibility of providing care that would otherwise be provided by a board certified physician, then the physician's assistant is required to provide the same standard of care as the board certified physician would provide. To hold otherwise would unknowingly expose and subject health care consumers to some lesser standard of care. . . ."
Pl.'s Mot. for Reargument, ¶ 4.
4. In response, Montague argues that Plaintiff offers no basis for challenging the Court's conclusion that Dr. Bauchner is unfamiliar with the standard of care for a physician's assistant and therefore unqualified to opine on that subject. Furthermore, Montague contends that Plaintiff's motion improperly seeks to have the Court set a standard of care as a matter of law, at the risk of altering the statutory framework imposed upon medical negligence actions.
See 18 Del. C. §§ 6853, 6854.
5. A motion for reargument pursuant to Superior Court Civil Rule 59(e) will be granted only if "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." A motion for reargument is not an opportunity for a party to rehash arguments already decided by the Court or to present new arguments not previously raised.
Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006) (citation omitted).
Id.; Hennegan v. Cardiology Consultants, P.A., 2008 WL 4152678, at *1 (Del. Super. Sept. 9, 2008) (citing Denison v. Redefer, 2006 WL 1679580, at *2 (Del. Super. Mar. 31, 2006)).
6. For the reasons articulated in Montague's response, the Court will not grant reargument. This is not a case in which the plaintiff's proffered expert has articulated an opinion that merely conflicts with that offered by the defendant's expert; Dr. Bauchner's report and deposition fail to express any standard of care for a physician's assistant, and further make clear that he would be unqualified to do so.
7. Nor can the Court salvage this portion of Plaintiff's case by holding as a matter of law that Montague was subject to the same standard of care as a Board-certified physician. It is true, per Plaintiff's argument, that certain situations will require a physician's assistant to take the same actions as would a physician. For example, as defense expert Dr. John E. Hocutt explained at his deposition, a medical practitioner confronted with signs or symptoms that he or she is unable to timely diagnose would be expected to recognize the limitations of her knowledge and promptly arrange an appropriate consultation, regardless of whether the practitioner was a physician's assistant or a physician. But the existence of some overlap in the general standards of care for various medical practitioners does not mean that the standard of care for physicians and physicians' assistants are identical. In this case, the crucial issues with regard to Plaintiff's claim against Montague depend upon her training, knowledge, and skill as a physician's assistant, as well as whether she was authorized and required to depart from the instructions of her supervising physician. Thus, the background and scope of practice specific to a physician's assistant are directly at issue. Plaintiff is required by 18 Del. C. § 6853 to present expert testimony regarding these standard-of-care issues, and the Court did not overlook controlling authority or misapprehend the law or the facts in concluding that Dr. Bauchner is not qualified to provide that testimony.
Dep. Tr., Dr. John E. Hocutt, Jr., M.D. (Jan. 5, 2010), at 12:11-13:16.
8. Accordingly, Plaintiff's Motion for Reargument is hereby DENIED.