IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

CANDY VAUGHN, as administratrix of the )

ESTATE OF JAMES VAUGHN, CANDY )

VAUGHN as wife of James Vaughn, and CANDY )

VAUGHN in her own right, )

Plaintiffs, )

v. ) C.A. No. N13C-07-132 ALR

)

JEFFREY I. JACKERSON, D.O. and MILFORD )

MEMORIAL HOSPITAL and ADAM S. )

BROWNSTEIN, M.D. and MILFORD )

MEDICAL ASSOCIATES, PA and RONALD )

M. LIEBERMAN, D.O. and DELAWARE )

SPINE INSTITUTE and KENT DIAGNOSTIC )

RADIOLOGY ASSOCIATES, PA )

Defendants. )

Submitted: November 19, 2014

Decided: November 24, 2014

Upon Defendants’ Motions for Summary Judgment

DENIED

Upon Defendant Milford Memorial Hospital’s Motion to Dismiss

DENIED

Edward J. Fornias, III, Esquire of Schmidt Kirfides & Fridkin, Wilmington, Delaware, attorney 

for Plaintiffs.

Bradley J. Goewert, Esquire and Joshua J. Inkell, Esquire of Marshall Dennehey Warner 

Coleman & Goggin, Wilmington, Delaware, attorneys for Defendants Jeffrey I. Jackerson, D.O. 

and Kent Diagnostic Radiology Associates, P.A.

Gregory S. McKee, Esquire of Wharton Levin Ehrmantraut & Klein, P.A., attorney for 

Defendants Adam S. Brownstein, M.D. and Milford Medical Associates, P.A.

John A. Elzufon, Esquire and Kara A. Hager, Esquire of Elzufon Austin Tarlov & Mondell, P.A., 

for Defendants Ronald M. Lieberman, D.O. and Delaware Spine Institute.

James E. Drnec, Esquire and Melony Anderson, Esquire of Balick & Balick, LLC, attorneys for 

Defendant Milford Memorial Hospital.

Rocanelli, J.
1

This is a medical malpractice and wrongful death action. Defendants seek 

judgment on the grounds that Plaintiffs’ lawsuit was not filed within the applicable 

statutes of limitation.1

 In addition, Defendant Milford Memorial Hospital seeks to 

dismiss the action against it on the grounds that service was not perfected in a 

timely manner. Plaintiffs contend that the case was filed in a timely manner, and 

that service was perfected within the time allowed by Court Order and was 

therefore timely. 

1. Defendants’ Contention that Suit was Not Filed Within the Applicable 

Statutes of Limitation

James Vaughn had an x-ray of his hip on September 29, 2010. Cancer was 

not diagnosed at this time. James Vaughn had another x-ray of his hip and femur 

on July 20, 2011. On or about July 20, 2011, a CAT scan was also performed. 

The July 20, 2011 diagnostic test results were suspicious for malignancy, and 

James Vaughn started treatment for cancer shortly thereafter. James Vaughn died 

on June 1, 2012 from cancer and/or complications caused by the cancer. This 

lawsuit was filed on July 11, 2013. 

 1 By Opinion and Order dated December 13, 2013, the Court denied a similar 

motion for summary judgment without prejudice, allowing certain facts that may 

be revealed during discovery that might support Defendants’ claim that the statute 

of limitations had run. By Order dated December 13, 2013, the Court denied 

Defendants’ Motion for Reargument. 
2

Assuming arguendo for the purposes of the motion for summary judgment 

that there was a negligent act, Defendants contend that the negligent act took place 

on September 29, 2010 when the x-ray of James Vaughn was misread. Defendants 

concede, for the purposes of this motion, that James Vaughn should have been 

informed that the September 29, 2010 x-ray was suspicious for cancer. Therefore, 

according to Defendants, the two-year statute of limitations for medical negligence 

started to run on September 29, 2010, and expired on September 30, 2012. 

Moreover, according to Defendants, Plaintiffs’ claim must have been filed by 

September 30, 2012 because Plaintiffs should have been aware of the medical 

negligence of September 29, 2010, in July 2011 when the diagnostic tests (which 

occurred within the two-year statute of limitations) showed the presence of cancer. 

2. Plaintiffs Contend that Suit was Filed in a Timely Manner

Plaintiffs argue that Plaintiffs were not aware of the September 29, 2010 act 

of medical negligence until about January 2013, when Plaintiff’s counsel informed 

Plaintiffs that James Vaughn should have been informed that the September 29, 

2010 x-ray showed a suspicious malignancy. Plaintiffs contend that the three-year 

statute of limitations applies and, therefore, Plaintiffs filed this lawsuit well within 

the applicable statute of limitations.
3

3. The Standard of Review for Motions for Summary Judgment

The Court may grant summary judgment only where the moving party can 

“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.”2

 The moving party bears the 

initial burden of proof, and once that is met, the burden shifts to the non-moving 

party to show that a material issue of fact exists.3

 At the motion for summary 

judgment phase, the Court must view the facts “in the light most favorable to the 

non-moving party.”4

4. Statutes of Limitations

The medical malpractice statute provides that a cause of action cannot be 

brought after two years from the date the injury occurred.5

 When a single action of 

medical negligence is alleged, the “injury occurs when the wrongful act or 

omission occurs.”6

 On the other hand, when an action for continuous medical 

treatment is alleged, then “the injury occurs at the time of the last act in the 

negligent medical continuum.”7

 However, the statute creates an exception when 

the injury “was unknown to and could not in the exercise of reasonable diligence 

have been discovered by the injured person,” in which case an action may be 

 2 Super. Ct. Civ. R. 56.

3 Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).

4 Brzoska v. Olson, 668 A.2d 1355, 1364 (Del. 1995). 

5 18 Del. C. § 6856.

6 Dambro v. Meyer, 974 A.2d 121, 126 (Del. 2009) (citation omitted). 7 Id.
4

brought three years from the date the injury occurred.8 In order to utilize the three 

year statutory period, “[the plaintiff] must show that the injury could not 

reasonably have been known [], and that the injury was, in fact, not known to [the 

plaintiff] during the two year period from the date of the injury.”9

Under the wrongful death statute, a cause of action cannot be brought after 

two years from “the accruing of the cause of such action.”10 “[A] cause of action 

for wrongful death accrues when a qualifying survivor is chargeable with 

knowledge of a potential cause of action, i.e., when the survivor does or should 

become aware of the cause of the decedent's death which gives rise to liability for 

wrongful death.”11 A wrongful death action that alleges medical malpractice 

depends on the whether the decedent’s claim for medical negligence would be 

viable, had the decedent survived.12 Thus, the statute of limitations for the medical 

malpractice action, which “begins to run on the date of the alleged wrongful act or 

omission,” must be met in order for a wrongful death action based on medical 

negligence to be a viable claim.13

 8 18 Del. C. § 6856(1).

9 Reyes v. Kent Gen. Hosp., Inc., 487 A.2d 1142, 1144-45 (Del. 1984).

10 10 Del. C. § 8107; 

11 In re Asbestos Litig. West Trial Grp., 622 A.2d 1090, 1092 (Del. Super. 1992).

12 Drake v. St. Francis Hosp., 560 A.2d 1059, 1060-61 (Del. 1989) (citing Milford 

Mem’l Hosp., Inc. v. Elliott, 210 A.2d 858, 869 (Del. 1965)).

13 Drake, 560 A.2d at 1061 (citing Reyes, 487 A.2d at 1145-46).
5

5. Court’s Analysis Regarding Statutes of Limitation

The Court rejects Defendants’ contention that Plaintiffs knew or should have 

known when James Vaughn was diagnosed with cancer in or about July 2011 that 

an act of medical negligence occurred on September 29, 2010. The record 

evidence does not support this position.14 To the contrary, the Court accepts 

Plaintiffs’ representation that Plaintiffs were not aware that the September 29, 

2010 x-ray was suspicious for a malignancy until about January 2013. The Court 

finds that the filing of this lawsuit on July 11, 2013 was timely and is not barred by 

any statute of limitations. This conclusion is supported by the factual record and is 

consistent with the decisional law. 

6. Milford Memorial Hospital’s Motion to Dismiss

Defendant Milford Memorial Hospital seeks to dismiss the action against it,

with prejudice, on the grounds that service was not perfected in a timely manner

and Defendant cannot demonstrate “good cause” for its delay. Plaintiffs argue that 

Defendant Milford Memorial Hospital’s motion is moot because the Court already 

considered the issue of timely service in its October 9, 2014 Order granting 

Plaintiffs’ motion to enlarge time for service.

 14 The Court does not agree with Defendants’ contention that Candy Vaughn’s 

deposition testimony supports a finding that Plaintiffs knew as of July 20, 2011 

that the September 29, 2010 x-ray was suspicious for cancer. 
6

Pursuant to Superior Court Civil Rule 4(j), “an action must be dismissed if 

service is not made within 120 days of filing the complaint, unless good cause is 

shown why timely service was not made within that time period.”15 A showing of 

“good cause” requires a plaintiff to demonstrate “good faith and excusable neglect” 

for its delay in effecting service, despite making reasonable efforts to comply with 

Rule 4.16

The Court rejects Defendant Milford Memorial Hospital’s argument that the 

action against it must be dismissed for untimely service because service was timely 

in light of this Court’s Order dated October 9, 2014, granting Plaintiffs an 

additional sixty days to effect service upon Defendant Milford Memorial 

Hospital.

17 On October 8, 2014, Plaintiffs’ filed a motion for an enlargement of 

time to perfect service upon Defendant Milford Memorial Hospital because the 

Kent County Sheriff never received the Writ issued by the Court on August 1, 

2013, and thus, did not make service upon Defendant Milford Memorial Hospital. 

In light of the Sheriff’s non-receipt, this Court granted Plaintiff’s motion to enlarge 

the time for service. About two weeks later, on October 23, 2014, service was 

perfected upon Defendant Milford Memorial Hospital.

 15 Larimore v. Stella, 2003 WL 22064107, at *2 (Del. Super. Aug. 29, 2003).

16 Id.

17 See DeSantis v. Chilkotowsky, 2005 WL 1653640, at *2 (Del. June 27, 2005) 

(affirming the trial court’s dismissal of an action where, among other things, the 

plaintiff failed to request an enlargement of time to perfect service).
7

Furthermore, despite its contentions, the Court finds that Defendant Milford 

Memorial Hospital has not suffered prejudice because of the delayed service. 

Indeed, only one deposition (the deposition of Candy Vaughn) has taken place in 

the course of discovery for this case. Depositions of Candy Vaughn’s children and 

the Defendant doctors have not yet been taken and Plaintiffs offered Defendant 

Milford Memorial Hospital the opportunity to re-depose Candy Vaughn if 

Defendant desires.

The Court finds that service was timely pursuant to the October 9, 2014 

Court Order and that Defendant Milford Memorial Hospital has not—and will 

not—suffer any prejudice as a result of this decision. Additionally, this decision is 

consistent with the factual record, decisional law, and Delaware’s public policy in 

favor of disposition of cases on the merits rather than by procedural default.

18 

NOW, THEREFORE, IT IS HEREBY ORDERED this 24th day of 

November 2014, Defendants’ Motions for Summary Judgment are hereby 

DENIED and Defendant Milford Memorial Hospital’s Motion to Dismiss is 

hereby DENIED. 

Andrea L. Rocanelli

__________ ________________ 

 The Honorable Andrea L. Rocanelli

 18 Larimore, 2003 WL 22064107, at *2 (citation omitted).