IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CHARLES TROTT, ) ) Plaintiff, ) )

v. ) C.A. No. N20C

- 09

- 182 SPL ) BAYHEALTH MEDICAL CENTER, ) INC., KENT GENERAL HOSPITAL, INC., ) BAYHEALTH NEUROSURGERY, JAMES ) MILLS, MD
, NASAROLLAH FATEHI, MD, ) JOHN CHUKWUDIFU, PA

- C, ) JULIA MATT, RN, TYLER BOHANON, ) RN , 1 and WHITNEY CESSNA, RN, ) ) Defendants. )

Submitted: November 27, 2023 Decided: February 1 6 , 2024

M EMORANDUM OPINION AND ORDER
Upon Defendants Julia Matt and Tyler Bohanon’s Motion for Summary Judgment, GRANTED.
Upon Defendant Whitney Cessna’s Motion for Summary Judgment, GRANTED.
Upon Defendant Bayhealth Medical Center Inc.’s Motion for Partial Summary Judgment, GRANTED.

1 Tyler Bohanon’s surname is spelled variously throughout the pleadings as Bohanon, Bohanan, and Bohannon. The Court will use the spelling provided in the complaint

– Bohanon. To the extent that this is an incorrect spelling, the Court intends no disrespect.Michael Mongeluzzi, Esquire (Argued) , Joseph DeAngelo, Esquire, of BARRETT

DEANGELO, LLC, West Chester, Pennsylvania; Linda Malkin, Esquire, of KIMMEL CARTER ROMAN PELTZ & O’NEIL, P.A., Wilmington, Delaware, Attorneys for Plaintiff

, Charles Trott

. Joseph Drnec , Esquire (Argued), Phillip Casale , Esquire, of WHARTON LEVIN EHR MANTRAUT & KLEIN, P.A.
, Wilmington, Delaware ; Attorneys for Defendants Bayhealth Medical Center, Inc., Julia Matt, RN and Tyler Bohan o n, RN

. Bradley Goewert (Argued) , Esquire, Thomas Marcoz, Jr., Esquire, of MARSHALL DENNEHEY, P.C., Wilmington, Delaware, Attorneys for Defendant Whitney Cessna , RN

.

LUGG, J.3 I. INTRODUCTION
Plaintiff, Charles Trott (“Trott”), sued Bayhealth Medical Center, Inc.
(“Bayhealth”)
, Kent General Hospital, Inc., 2 Bayhealth Neurosurgery, James Mills,

M.D. (“Dr. Mills”) , Nasrollah Fatehi, M.D. (“Dr. Fatehi”) , John Chukwudifu, PA

- C
(“PA Chukw u difu”) , Whitney Cessna, RN (“Nurse Cessna”) , Julia Matt, RN
(“Nurse Matt”) , and Tyler Bohanon, RN (“Nurse Bohanon”) , for medical negligence
related to the December 2018 treatment of injuries to his spinal cord resulting in his
quadriplegia

. 3 Nurses Cessna, Matt, and Bohanon have moved for summary
judgment
, 4 and Bayhealth seeks partial summary judgment to the extent it is alleged
to be responsible for the negligence of Nurses Cessna, Matt, and Bohanon. 5 Trott
opposes these motions. 6
In his complaint, Trott alleges that N urses Cessna, Matt, and Bohanon were
negligent and careless for:

a. Failing to provide and afford proper and careful medical and nursing care and treatment to [Mr. Trott] during his December 9, 2018
, admission;

2 In its answer to the complaint, Bayhealth asserted “Kent General, Inc.” and “Bayhealth Neurosurgery” are not properly named legal entities. D.I. 14 (“Bayhealth Ans.) at n. 1.

3 See generally Pl. ’ s Compl. (D.I. 1) (“Compl.”).

4 D.I. 111 (“Cessna Mot.”); D.I. 110 (“Matt & Bohanon Mot.”).

5 D.I. 113 (“Bayhealth Mot. ” ).

6 D.I. 116 (“Ans. Matt & Bohanon”); D.I. 117 (“Ans. Cessna”); D.I. 118 (“Ans. Bayhealth”).4

b. Providing medical and nursin g care and treat ment to [Mr. Trott] which was below the standard of care in the community
, increasing the risk of harm to Mr. Trott’s well

- being;

c. Fail ing to properly evaluate Mr. Trott during his December 9, 2018
, presentation to Kent General Hospital; d. Fail ing to properly communicate Mr. Trott’s condition amongst his healthcare providers on December 9, 2018;

e. Fail ing to perform proper neurological assessments on December 9, 2018; f. Fail ing to perform proper neurological checks on December 9, 2018; and g. Permitting Mr. Trott’s spinal cord injury to progress to quadriplegia on December 9, 2018. 7

Trott contends that the nurses’ carelessness and negligence caused his : serious, disabling and permanent personal injuries, including, but not limited to: the development and progression of a spinal cord injury; spinal cord contusion; spinal cord edema; permanent paralysis of the upper extremities; permanent paralysis of the l ower extremities; quadriplegia; neurogenic bladder, tracheostomy, PEG tube placement and feedings; respiratory distress; acute ventilator dependent respiratory failure; pneumonia; fracture of the ribs; the need to undergo extensive medical and surgical car e; the need to undergo extensive therapy and rehabilitation; he has suffered extreme anxiety, pain and suffering, loss of life’s pleasures, and other emotional distress due to the devastating physical and emotional sequelae associated with the spinal cord injury; he has been caused to require significant amounts of medications; he has suffered other medical and psychological injuries, the full extent of which have yet to be determin e d; he has been forced to undergo extensive hospitalization and physical/occ upational therapy; he suffered other orthopedic, spinal, neurological, psychological and psychiatric injuries, the full extent of which have yet to be determined; he has in the past and may in the future continue to require medicines, medical aid, medical care, treatment and rehabilitation; he has incurred significant medical expenses, he has in the past and will in the future continue to suffer agonizing aches, pains, suffering and mental anguish; he has in the past and will in the future continue to be pe rmanently

7 Compl

. ¶ 115.5

disabled from performing his usual duties, occupations and avocations, all to his great loss and detriment; he has sustained a loss of earnings and a loss of future earning capacity; he has endured and continues to endure pain and suffering; and he has in the past and will in the future continue to suffer loss of life’s pleasures as a result of his injuries. 8

Trott offered Edward N. Shradar, RN, MSN, CEN
, (“Nurse Shradar”) as an expert on nursing standards of care
, 9 and Dr. James Holsapple (“Dr. Holsapple”) as a medical expert to opine on causatio n

. 10 The parties deposed both experts and,
following his deposition, 11 Dr. Ho l sapple offered a supplemental letter to clarify his
deposition testimony. 12
With the medical expert testimony fully developed, Nurses Cessna, Matt, and

Bohanon moved for summary judgment

. 13 They argue that Trott has failed to offer
expert testimony establishing a causal link between their alleged negligence and his
injuries

. 14 Trott opposes the motions and posits that the opinions offered by Nurse
Shradar (on negligence) and Dr. Holsapple (on causation) establish that the nurses

8 Id. ¶ 116.

9 Ans. Cessna
, Ex. B (“Shradar Rpt.”)

. 10 Ans. Matt & Bohanon
, Ex. B (D.I. 116) (“ Holsapple Rpt. ”) ; Ans. Cessna
, Ex. C (“Holsapple Rpt.”)

. 11 Ans. Matt & Bohanon
, Ex. F ( “Holsapple Dep.”),

12 Ans. Matt & Bohanon
, Ex. C ( “Holsapple Supp. Rpt.”); Ans. Cessna
, E x. D (“Holsapple Supp. Rpt. ” ).

13 Matt & Bohanon ’ s Mot. ; Cessna Mot.

14 Matt & Bohanon Mot. ¶ 16; Cessna Mot. ¶ 10.6

breached the applicable standard of care thereby “caus ing the tragic outcome of Mr.

Trott’s condition.” 15

II. FACTUAL AND PROCEDURAL BACKGROUND

On December 2, 201 8
, Trott sustained a spinal cord injury in a motor vehicle

accident and was transported to Kent General Hospital by ambulance for treatment

. 16

On December 4, 2018, Dr. Mills surgically placed an odontoid screw to address
Trott’s spinal cord injury

. 17 A physician’s assistant cleared Trot t for discharge on
December 5, 2018
, and directed Trott to follow

- up with medical staff in two weeks. 18
A few days after his discharge home
, Trott “ experienced increase d pain in his

neck and sudden numbness in his extremities; he called 911 and emergency medical
services (“EMS”) arrived” and documented his condition. 19 EMS personnel
transported Trott to Kent General Hospital by ambulance on December 9, 2018

. 20
Upon Trott’s arrival at approximately 1:20 a.m., an Emergency Department

15 Ans. Matt & Bohanon at 6; Ans. Cessna at 5

- 6.

16 Comp l. ¶ 60.

17 Id. ¶ ¶ 65

- 66.

18 Id. ¶¶ 69

- 70.

19 Id. ¶ 72.

20 Id. ¶ 72.7

physician noted that he was “suffering from sudden and severe neck pain with

moderate weakness.” 21

A round 1:30 a.m., the E mergency D epartment ’s triage nurse noted Trott ’s

numbness in all extremities. 22 At 2:00 a.m., Nurse Cessna assumed care of Trott in

the E mergency D epartment, where Trott ’s neck and back pain escalated to a level of

9 out of 10

. 23 A 2:06 a.m. CT sca n revealed that the odontoid screw had shifted. 24

A round 2:30 a.m., Defendant John Chukwudifu, PA

- C (“PA Chukwudifu”)
,
conducted a neurosurgical evaluation of Trott in the E mergency D epartment. 25 He
diagnosed Trott with a spinal cord injury and documented his impression that the

odontoid screw had shifted. 26 PA Chukwudifu admitted Trott to the N eu rological

I ntensive C are U nit (“Neuro ICU”) and ordered hourly neurological evaluations and

an MRI. 27 A t 4:58 a.m.
, Nurse Cessna noted an increase in Trott’s neck pain to a

21 Id. ¶ 73.

22 Id. ¶ 74.

23 Id. ¶¶ 74

- 75.

24 Id. ¶ 76

. 25 Id. ¶ 77

. 26 Id.

27 Id

.8

level of 10 out of 10

. 28 No records indicate whether Nurse Cessna “communicated
Mr. Trott’s condition to an appropriate healthcare provider

. ” 29

At 6:45 a.m., Trott moved from the E mergency D epartment to the Neuro

I ntensive C are U nit where Nurse Matt assumed his care

. 30 At 7:00 a.m., Nurse Matt
performed a neuro logical evaluation on Trott , recording that he was awake, alert,
and oriented, but only had “flicker of muscle ” movement in his extremities. 31 The

records do not indicate Nurse Matt informed anyone of Trott’s condition

. 32

At 8:00 a.m., Nurse Bohanon performed a neurological evaluation of Trott

and noted “weakness” in his extremities. 33 The records do not indicate Nurse

B ohanon alert ed any other healthcare provider of Trott’s condition

. 34 At 8:55 a.m.
,
PA Chukwudifu evaluated Trott
, observed “no antigravity movement in any of his

extremities
, ” and notified Dr. Mills of Trott’s “neurolo gic deterioration.” 35

28 Id. ¶ ¶ 78

- 79.

29 Id. ¶ 79.

30 Id. ¶ ¶ 80

- 81.

31 Id. ¶ 81.

32 Id. ¶ 82.

33 Id. ¶ 83.

34 Id. ¶ 84.

35 Id. ¶ 85.9

Nurse Bohanon evaluated Trott at about 9:32 a.m. and noted that “during the
0900 neuro check, [Trott] tolerated HOB elevation of approximately 2

– 3 inches.” 36

Around 10:00 a.m., Nurse Bohanon performed another neurological evaluation a nd

noted that Trott “ [w] as awake, alert, and oriented” and “suffering from diminished
motor and sensory functions” with “ flicker of muscle movement ” in his

extremities. 37 The records do not indicate Nurse Bohanon informed any other
healthcare provider of Trott’s condition. 38 But, at Dr. Fatehi’s direction, Nurse

Bohanon “entered a verbal order for hourly neuro checks

. ” 39 Around 11:00 a.m.,

Nurse Bohanon evaluated Trott and reported a total loss of movement in his

extremities. 40
Following Nurse Bohanon’s 11:00 evaluation, based on the allegations in
Trott’s complaint, it appears that N urses Cessna, Matt, and Bohanon were relieved
of Trott’s care. “The records indicate that, at or a bout 1:00 [p.m., Trott] suffered

f u rther respiratory distress and required endotracheal intubation and mechanical

ventilation.” 41 Trott remained under evaluation at Kent General Hospital until

36 Id. ¶ 86.

37 Id. ¶ 88.

38 Id. ¶ 89.

39 Id. ¶ 90.

40 Id. ¶ 91.

41 Id. ¶ 93.10

January 2, 2019 when he was discharged to Magee Rehabilitation Hospital in
Philadelphia, Pennsylvania. 42 The following day, Magee Rehabilitation Hospital

transferred Trott to Thomas J efferson University Hospital (“Jefferson Hospital”)
,
where he underwent emergency surgery on January 8 , 2019. 43 Jefferson Hospital
discharged Trott to a rehabilitation hospital on January 9, 2019

. 44

Trott offered Nurse Shradar to establish the standard of care required of

N urses Cessna, Matt, and Bohanon. After reviewing available material, Nurse
Shradar concluded that each nurse deviated from the standard of care required under

the circumstances. 45 Nurse Sh ra dar concluded that Nurse Cessna failed to follow a

documented or der directing regular neurological checks, failed to document Trott’s
neurological decline, and failed to notify appropriate healthcare providers of Trott’s

decline. 46 Further, Nurse Shradar opined that Nurses Matt and Bohanon failed to
notify appropriate healthcare providers of changes in Trott’s condition. 47

Trott offer ed Dr. Holsapple to establish the causal connection between all
defendants’ (nurses, physician’s assistants, and doctors) negligence and Trott’s

42 Id. ¶ 101.

43 Id. ¶ ¶ 102. 107.

44 Id

. 45 Shradar Rpt. at 6.

46 Id. at 5.

47 Id. at 5

- 6.11

injury

. After review ing the medical records and depositions of the defendant
healthcare providers, Dr. Holsapple opined :
1) The standard of care requires that appropriate imaging be obtained to determine the cause of progressive neurological signs and symptoms suggesting spinal cord compression.
2) More likely than not, Mr. Trott’s neurological condition declined significantly be tween 3:25 AM and 7 AM on 12/9/18.
3) More likely than not, Mr. Trott’s neurological condition declined significantly between 3:25 AM and 7 AM on 12/9/18 as a result of spinal cord compression and spinal cord injury.
4) The standard of care requires tha t new and significant neurological deficits observed by hospital nursing staff be reported promptly to the primary team physicians and/or their designated assistant providers.
5) Upon learning of a progression of his neurological symptoms the standard of care required appropriate imaging be obtained to rule out clinically significant cord compression and/or instability.
6) The standard of care requires that upon learning of new and significant neurological deficits the primary team physicians and/or thei r designated assistant providers perform a prompt beside evaluation.
7) In the setting of suspected acute and/or worsening symptomatic spinal cord compression, the standard of care requires that appropriate and timely spinal imaging be obtained and revie wed.
8) More likely than not had spinal imaging been obtained in the morning (AM) on 12/9/19, significant spinal cord compression and evidence of spinal cord injury would have been demonstrated.
9) In the setting of spinal instability, progressive sympto matic acute spinal cord compression and incomplete spinal cord injury, timely spinal decompression and possible definitive stabilization are indicated.12

10) Acute and progressively symptomatic spinal cord compression due to spinal column instability is tr eatable. Timely decompression and stabilization can be associated with an increased probability of functional recovery. Delay may be associated with poorer outcomes and permanent neurological deficits.
11) More likely than not had Mr. Trott undergone appropriate and prompt bedside evaluation and spinal imaging in the AM of 12/9/19, progressive and treatable spinal cord co mpression would have been identified and decompression

- stabilization surgery recommended to increase the chance of meaningful neurological recovery. 48
In his August 1, 2023
, deposition, Dr. Holsapple testified that it was unclear
what, if anything
, the nurses did after noticing Trott’s decline around 7:00 a.m. 49
But Dr. Holsapple could not say “more likely than not an earlier notification from
nursing staff would have impacted the outcome in this case.” 50 He continued:
I don’t think I could say at the level of more likely than not, that confusion or some potential delay in communication from the nurses to whoever and most importantly Dr. Mills is linkable at the level of more likely than not

– so with certainty

– to a difference in outcome. It

c ertainly isn’t a good thing if it’s true that the nurses didn’t let people know that this guy, that Mr. Trott was now essentially quadriplegic.
I mean, if that’s true, that’s a deviation, no question about it. You don’t not report that kind of informatio n immediately, right? So if they didn’t

– and again, that’s an “if” there, there are variable accounts on this, right

– but if that’s true, that’s a deviation. Is that a deviation in a very clear

- cut and direct more

- likely

- than

- not way associated with th e wors t outcome? I don’t think I can say that. 51

48 Holsapple Rpt. at 6

- 8

. 49 Holsapple Dep. at 118

- 121.

50 Id. at 128

. 51 Id. at 12 8

- 29

.13

So, I mean, I may express that in some way, but I wouldn't express it as I think the nurses or some other providers deviated from the standard of care, and more likely than not because of the deviation, yo u know, things turned out, you know, worse. I won't say those things. I might allude to what I am saying right now, which is sort of like that. I mean, it's a little uncomfortable, right, that this kind of went on for so long. But I couldn't say that, a nd I don't think that I will say such a thing. 52

W hen specifically asked about Nurse Cessna, Dr. Holsapple explained, “I don’t see
any evidence that that nurse, Ms. Cessna, deviated from the standard of care and that

that deviation is linked to some sort of aspect of the bad outcome

. ” 53
Perceiving some confusion over his deposition testimony, Dr. Holsapple
provided clarification to Trott’s counsel by letter. 54 Dr. Holsapple explained, as he
did during his deposition, that “there does not appear to b e any communication of
the progression of neurological symptoms and deficits by nursing [between 3:25

52 Id. at 132

- 33

. 53 Id. at 133

- 34.

54 Holsapple Supp. Rpt. The Court understands that defendants object to its consideration of Dr. Holsapple ’ s Supplemental Correspondence as having been provided after an established discovery deadline

. The Court considers this document, together with Dr. Holsapple ’ s report and deposition, in the light most favorable to Trott as the non

- moving party. The Court d eclines to reject this document on procedural or other grounds. But s ee, e.g., Estate of Stone v. Bayhealth Medical Center, Inc., 2023 WL 7018404 (Del. Super. Ct. Oct. 24, 2023) (declining to consider post

- deposition affidavit of medical witness under the sham affidavit doctrine).14

a.m. and 7:00 a.m.].” 55 In his view, the applicable nursing standard of care required
notification to other medical professionals, but he could not :

say whether or not the neurological team would have so acted in accordance with the standard of care if provided with this information sooner given that the standard of care was violated in this case, including following the discovery of the progressive compro mise by the physician’s assistant at about 8:45 to 9:00 a.m. 56
He concludes his correspondence by noting that all his opinions “have been stated
to a reasonable degree of medical probability.” 57

III. STANDARD OF REVIEW
Under Superior Court Civil Rule 56, summary judgment will be granted
where “the pleadings, depositions, answers to interrogatories, and admissions on file
, together with the affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment as a matter of law.” 58

“A material issue of fact exists if ‘a rational finder of fact could find some m aterial
fact would favor the moving party in a determinative way.’” 59 On a motion for
summary judgment, this Court “(i) construes the record in the light most favorable

55 Holsapple Supp. Rpt.

56 Id.

57 Id.

58 Super. Ct. Civ. R. 56(c).

59 Estate of Moulder v. Park , 2022 WL 4544837, at *3 (Del. Super. Ct. Sept. 28, 2022) (quoting Deloitte LLP v. Flannagan , 2009 WL 5200657, at *3 (Del. Ch. Dec. 29, 2009)).15

to the non

- moving party; (ii) detects, but does not decide, genuine issues of material
fact; and (iii) denies the motion if a material fact is in dispute.” 60
“The moving party bears the initial burden to demonstrate that there is no

gen uine dispute as to any material fact and that the movant is entitled to judgment

as a matter of law.” 61 “Once the movant meets its burden, then the burden shifts to

the non

- movant to demonstrate sufficiently an existence of one or more genuine

issues of material fact.” 62 Summary judgment will not be granted if there is a
material fact in dispute or if it “seems desirable to inquire thoroughly into [the facts]
in order to clarify the application of the law to the circumstances.” 63
While the Court will consider all facts and reasonable inferences in a light

most favorable to the non

- moving party, 64 it must not “indulge in speculation and
conjecture; a motion for summary judgment is decided on the record presented and
not on evidence potentially possible.” 65 Summary judgment is also appropriate

60 US Dominion, Inc. v. Fox News Network, LLC, 2023 WL 2730567, at *17 (Del. Super. Ct. Mar. 31, 2023) (quoting CVR Refin., LP v. XL Specialty Ins. Co. , 2021 WL 5492671, at *8 (Del. Super. Ct. Nov. 23, 2021) (cleaned up)).

61 Estate of Moulder , 2022 WL 4544837, at *4 (citing Rice v. Rice , 2020 WL 4908096, at *1 (Del. Super. Ct. 2020)).

62 Quality Elec. Co., Inc. v. E. States Const. Serv., Inc. , 663 A.2d 488 (Del. 1995) ;
s ee also Super. Ct. Civ. R. 56(e); Moore v. Sizemore , 405 A.2d 679, 681 (Del. 1979)

. 63 Ebersole v. Lowengrub , 180 A.2d 467, 470 (Del. 1962).

64 Nutt v. A.C. & S. Co. , 517 A.2d 690, 692 (Del. Super. Ct. 1986).

65 In re. Asbestos Litig. , 509 A.2d 1116 , 1118 (Del. Super. 1986), aff ’ d sub. nom. Nicolet, Inc. v. Nutt
, 525 A.2d (Del. 1987).16

where a non

- moving party that bears the burden of proof at tria l fails to establish the
existence of an element essential to that party’s case. 66 In a medical malpractice

action, “ a defendant is entitled to summary judgment if, after adequate time for
discovery, the record unambiguously demonstrates that the plaintiff's allegations are

not and will not be supported by expert medical testimony. ” 67

IV. ANALYSIS

To sustain a claim of healthcare medical negligence
, “ a plaintiff must present
expert medical testimony as to: 1) the applicable standard of care; 2) the alleged
deviation from that standard; and 3) the causal link between the breach of the

standard of care and the alleged injury.” 68 Under Delaware ’s Healthcare Medical
Negligence Insurance and Litigation statute , “[n]o liability shall be based upon
asserted negligence unless expert medical testimony is presented as to the alleged
deviation from the applicable standa rd of care in the specific circumstances of the
case and as to the causation of the alleged personal injury or death.” 69 From this it
flows that expert medical testimony is required to support proximate causation. 70

66 Vick v. Khan , 2019 WL 2177114 (Del. Super. Ct. May 17, 2019).

67 Froio v. Du Pont Hosp. for Children , 816 A.2d 784 , 786 (Del. 2003) (cleaned up)

. 68 Signey v. Pfaff

, 2023 WL 6449153, at *1 (Del. Super. Ct. Oct. 2, 2023) (cleaned up).

69 18 Del. C. § 6853(e).

70 Signey , 2023 WL 6449153, at *1 (cleaned up).17

“Proximate cause is a necessary elemen t of any tort claim.” 71 “[A] proximate cause
is one which in natural and continuous sequence, unbroken by any efficient
intervening cause, produces the injury and without which the result would not have

occurred.” 72 A plaintiff must present expert medical testimony as to both (i) the
alleged deviation from the applicable standard of care
, and (ii) the causal connection

between the wrongful conduct and the alleged injury

. 73 “Without the expert
testimony, a jury is not permitted to connect the dots between a bare allegation of
medical negligence and an injury.” 74

Delaware law mandates that such medical opinions “be based on a reasonable
degree of medical probability.” 75 Therefore, it is “ strongly encouraged ” that expert
medical opinions “be stated in terms of a reasonable medical probability or a
reasonable medical certainty.” 76 The trial court retains discretion to determine
whether an expert’s opinion, even if not articulated in the language of “reasonable

medic al probability” or “reasonable medical certainty
, ” satisfies the legal standard

71 Doe v. Wildey, 2012 WL 1408879, at *4 (Del. Super. Ct. Mar. 29, 2012).

72 Id.

73 Burkhart v. Davies , 602 A.2d 56 , 59 (Del. 1991) ; 18 Del C. § 6853(e)

. 74 Signey , 2023 WL 6449153, at *1 (cleaned up).

75 Mammarella v. Evantash , 93 A.3d 629, 638 (Del. 2014).

76 Moses v. Drake , 109 A.3d 562, 568 (Del. 2015) (internal quotations omitted).18

when viewed in the context of all evidence. 77 However, expert medical opinion may not be premised on speculation and conjecture. 78 An expert medical opinion
regarding “what is possible is no more valid than the jury's own speculation as to
what is or is not possible.” 79 Therefore, an expert witness’s testimony “concerning
‘possible medical consequences, rather than ... reasonable med ical probability’ [is]
impermissible speculation.” 80 O pinions that a medical outcome was “feasible,” 81 or even “likely” are not offered with a reasonable degree of medical probability. 82 The
absence of an expert opinion stated with reasonable medical pro bability as to
negligence or causation warrants summary judgment. 83 Such is the case here

.
A. Expert Medical Testimony Establishes T he Nurses Deviated From T he A pplicable S tandard O

f C are .
Nurse Shradar opine d , within a “reasonable degree of professional certainty,”
that “there were deviations from the standard of care by the nursing staff in the ED

77 Id

. 78 Id. (quoting O ’

Riley v. Rogers , 69 A.3d 1007, 1011 (Del. 2013)).

79 Mammarella
, 93 A.3d at 635 (quoting Oxendine v. State , 528 A.2d 870, 873 (Del.1987)).

80 O ’ Riley , 69 A.3d at 1011 (quoting Riegel v. Aastad , 272 A.2d 715, 718 (Del. 1970)).

81 See, e.g., Moses , 109 A.3d at 568.

82 Mammarella , 93 A.3d at 636

- 37.

83 Russell v. Kanaga , 571 A.2d 724, 734 (Del. 1990) (“ [A] s a matter of law, the Delaware Medical Malpractice statute requires direct expert medical testimony to support a jury ’ s finding of negligence and causation

. ”)

.19

and Neuro ICU on December 9 th , 2018

. ” 84 Dr. Holsapple, for his part, concluded
that he did not “see any evidence that nurse, Ms. Cessna
, deviated from the standard

of care.” 85 For purposes of this motion, t he nurses do not vigorously contest Nurse
Shradar’s opinion on their failure to adhere to the applicable standard of care , and
Dr. Holsapple’s contrary c onclusion as to Nurse Cessna merely creates an issue of

fact. The Court finds that Trott has satisfied the first prong of 18 Del. C. § 685 3 (e) ;

he has offered expert medical testimony supporting the nurse s ’ deviation from of the
applicable standard of care in the circumstances of this case

.
B. Expert Medical Testimony Does Not Establish T he Nurses’ Breaches O

f T he Standard O

f Care Proximately Caused Trott’s Injury.

T his case turns on whether expert testimony supports a causal connection
between the nurses’ negligence and Trott’s injuries. In other words, did the nurses’
failure to communicate with medical professionals during the early morning hours

of December 9, 2018
, proximately cause Trott’s paraplegia. Nurses Matt and
Bohanon contend that “[t]here is no expert medical opinion stating that any alleged
failure timely to communicate the patient’s status to the Neurosurgical Providers
proximately caused injury.” 86 Nurse Cessna joins the motion of Nurses Matt and

84 Sh r adar Rpt. a t 6.

85 Holsapple Dep. at 13 3

- 34

. 86 Matt & Bohanon Mot

. at 6 , ¶ 15; id. at 3, ¶ 10 (“Dr. Holsapple was unable to state, to a reasonable degree of medical probability, that the [Nurses ’ ] alleged failure to20

Bohano n and adds that Dr. Holsapple “will not opine that there is any connection
between [her] care and Mr. Trott’s paralysis/paraplegia.” 87 Trott counters that
“[n]othing in Dr. Holsapple’s deposition testimony demonstrates that he cannot

conclude that the negligence on part of the nurse defendants did not cause and/or
contribute to Mr. Trott’s paraplegia.” 88 But, Trott’s contention misses the mark. In

the Rule 56 burden shifting equation
, the defendant nurses have met their initial

burden to show that no expert testimony exists to link their negligence to Trott’s
injuries . Trott does not demonstrate an existence of one or more genuine issues of

material fact. To survive summary judgment, Trott must point to some expert
medical testimony beyond speculatio n that the nurses ’ negligence proximately
caused his injury. Dr. Holsapple offers none. Thus, summary judgment must be
granted.
Dr. Holsapple’s report, deposition, and supplemental correspondence fail to

demonstrate with reasonable medical probability, that the alleged deviations by the

Defendant Nurses proximately caused Trott’s injuries. Dr. Holsapple candidly, and

report neurological changes to the Neurosurgical Providers caused or contributed to [Trott ’ s] outcome”) (citing Holsapple Dep. at 116

- 21 ; 124

- 20 ; 131

- 33 ; 152

- 55 ).

87 Cessna Mot. at 5, ¶ 7.

88 Ans. Matt & Bohanon at 6

. The Court understands Trott ’ s argument to be that Dr. Holsapple can demonstrate a causal connection between the nurses ’ negligence and Trott ’ s injury ; however, Trott fails to offer record evidence or legal authority to support his position.21

repeatedly, testified that he could not opine that the nurses’ deviations from the

standard of care m ore likely than not changed the outcome. 89 Dr. Holsapple believed

the nurses should have done more; 90 however, he could not offer an expert opinion
that these failings proximately caused Trott’s injury.
Nurses Matt and Bohanon assert that “Dr. Holsapple’s testimony on the issue
[of proximate causation] was equivocal at best and not sufficient to meet the
standards set by Delaware law.” 91 Trott replies that the use of the term “equivocal,”
“demonstrate[s] a clear issue of material fact.” 92 But this response misapprehends
the standard of proof required in a medical negligence action. Dr. Holsapple

express ed his general disapproval of the timeliness of the nurses’ responses to Trott’s

condition. 93 But, despite repeated questioning on the point, he would not offer an
opinion within a reasonable degree of medical probability (or certainty) that the

nurses’ n egligence proximately caused Trott’s injury. 94 The Court is mindful that

89 Holsapple Dep

. at 116

- 21 ; 129 ; 132

- 33 ; 152

- 54

. 90 Id. at 124

- 29

. 91 Matt & Bohanon Mot. at 4, ¶ 10.

92 Ans. Matt & Bohanon at 6.

93 Holsapple Dep. at 124

- 29

. 94 See e.g., Mammarella , 93 A.3d at 636 (medical expert “ testified that he could not opine on [plaintiff’s] diagnosis or treatment to a reasonable degree of medical probability, and that any opinion about those issues would be speculative”).22

no talismanic phrase must be offered by an opining expert, 95 but Dr. Holsapple’s
“equivocation” amounts to speculation and falls short of the “expert medical
testimony . . . as to th e causation of the alleged personal injury or death” required by

18 Del. C. § 6853(e). 96
In his supplemental report, offered to clarify any confusion prompted by his
deposition testimony, Dr. Holsapple explained that his deposition testimony was consistent with the opinions he rendered in his original report. 97 But again, h is
report, deposition, and supplemental report fail to offer an expert opinion on

causation

. Contrary to Trott’s counsel ’s assert ion
, 98 Dr. Holsa pple’s s upplemental

r eport does not definitively state that the nursing delay caused Trott’s condition to

worsen , 99 and c ounsel’s argument cannot supplant the expert testimony required to

95 See Moses, 109 A.2d at 568 (trial courts are afforded discretion “to determine whether the opinion offered by an expert, when considered in light of all of the evidence, meets [the “reasonable medical probability” or “reasonable medical certainty”] standard”); Rizzuto v . Delaware Clinical and Laboratory Physicians, P.A., 2015 WL 3512369 , at *5 (Del. Super Ct. Feb. 3, 2015) (quoting Green v. Werner , 766 A.2d 492, 495 (Del. 2001)) ( Medical experts are not required to “couch their opinions in legal terms or to articulate the standard of care with a high degree of legal precision or with ‘ magic words. ’ ” )

96 See e.g.
, Mammarella , 93 A.3d at 634

- 35.

97 Holsapple Supp . Rpt.

98 Ans. Cessna at 5

- 6 (Representing that Dr. Holsapple ’ s Supplemental Report “specifies that a delay of about 2 to 5

- 1/2 hours on part of the nursing in failing to communicate these neurological deficits is a significant delay causing the tragic outcome of Mr. Trott ’ s cond ition

. ” ) (emphasis added)

. 99 Holsapple Supp . Rpt.23

establish causation to a reasonable medical degree of probability. Dr. Holsapple
fails to offer the necessary opinion li n king the nurses ’ failings as the cause of Trott’s
injur y

. Trott contends that “[g]ranting defendants’ motion is tantamount to
precluding failure to communicate medical malpractice claims as a matter of law in

the state of Delaware.” 100 Not so. Rather, the Court’s grant of defendants’ motion

reiterates the well

- e stablished requirement that expert medical testimony must be
offered to support causation in medical negligence cases. 101 Where such a link is
established, denial of summary judgment is appropriate. But that link is not

established here. While what Trott describes as a “failure to communicate” claim
may be difficult to prove, this difficulty does not compel the Court to dis regard
statutory requirements.

A n expert need not be certain of subsequent actions of healthcare providers to
opine on causation

. But Dr. Holsapple did not offer an opinion t hat Trott’s outcome

would have differed had the nurses promptly informed other medical providers,
including the Neurosurgery Team , of Trott’s decline. Of course, e xpert witnesses

may provide causation opinions in response to hypothetical scenarios

. 102 But here,

100 Ans. Matt & Bohanon at 7.

101 18 Del. C. § 6853(e).

102 O ’ Riley , 69 A.3d at 1012 (citing Stafford v. Sears, Roebuck & Co. , 413 A.2d 1238, 1245 n.10 (Del. 1980)).24

Dr. Holsapple in his initial report, depo sition, and supplemental report declined to
opine with medical probability or certainty tha t the nurses ’ negligence caused Trott’s
injury

. Rather, Dr. Holsapple’s testimony linking the nurses’ care to Trott’s injury
was speculative; Trott fails to make a prima facie case on the issue of causation. 103

V. CONCLUSION
Expert medical testimony must be offered to connect the nurses’ negligence

to Trott’s injur y, and this testimony must be offered with reasonable medical
probability or certainty

. Trott fails to forge that connection here. T he Nurses ’

m otion s for s ummary j udgment and Bayhealth’s motion for partial summary
judgment 104 are GRANTED

.
IT IS SO ORDERED.

______________________ Sean P. Lugg, Judge

103 Kardos v. Harrison , 980 A.2d 1014, 1019 (Del. 2009)

. 104 Clark v. Brooks, 377 A.2d 365, 371 (Del. 1977) (cleaned up) (“Where the sole basis of liability of an employer is the negligence of the employee, the employer cannot be held liable unless the employee is shown to be liable; hence, if absence of culpability on the part of the employee to the injured person has been established by litigation, the employer cannot be held liable to the injured person”).