GI Associates of Delaware v. Anderson

IN THE SUPREME COURT OF THE STATE OF DELAWARE

GI ASSOCIATES OF DELAWARE, §
P.A., ADVANCE ENDOSCOPY § No. 182, 2020
CENTER, LLC, and NATWARLAL §
RAMANI, M.D., § Court Below: Superior Court
§ of the State of Delaware
Defendants Below, §
Appellants, § C.A. No. N18C-04-158
§
v. §
§
MONICA KING ANDERSON, §
Individually and as Personal §
Representative of the ESTATE OF §
WILLIAM KING, STEPHANIE §
KING, HEATHER GUERKE, and §
AMBER WITHROW, §
§
Plaintiffs Below, §
Appellees. §

Submitted: December 9, 2020
Decided: February 15, 2021

Before SEITZ, Chief Justice; VALIHURA, VAUGHN and TRAYNOR, Justices;
and HARTNETT, Judge,* constituting the Court en Banc.

Upon appeal from the Superior Court. REVERSED and REMANDED.

Bradley J. Goewert, Esquire, and Lorenza A. Wolhar, Esquire (Argued), Marshall
Dennehey Warner Coleman & Goggin, Wilmington, Delaware, for Appellants, GI
Associates of Delaware, P.A., Advance Endoscopy Center, LLC, and Natwarlal
Ramani, M.D.

*
Sitting by designation under Del. Const. Art. IV, § 12.
Timothy E. Lengkeek, Esquire (Argued), and Natalie Wolf, Esquire, Young
Conaway Stargatt & Taylor, LLP, Wilmington, Delaware, for Appellees, Monica
King Anderson, Individually and as Personal Representative of the Estate of William
King, Stephanie King, Heather Guerke, and Amber Withrow.

VAUGHN, Justice:
 I. INTRODUCTION

This is an interlocutory appeal in a medical negligence case. The

Defendants-Appellants are GI Associates of Delaware, P.A., Advance Endoscopy

Center, LLC, and Natwarlal Ramani, M.D. (“Dr. Ramani”) (collectively, the

“Defendants”). The Plaintiffs-Appellees are Monica King Anderson, the Estate of

William King, Stephanie King, Heather Guerke, and Amber Withrow (collectively,

the “Plaintiffs”).

On April 4, 2011, Dr. Ramani performed a colonoscopy on William King.

At a follow up visit on April 26, 2011, Dr. Ramani recommended that Mr. King

return for his next colonoscopy in three to five years. Mr. King followed that

advice and returned to Dr. Ramani for another colonoscopy five years later, on

March 26, 2016. The March 2016 colonoscopy could not be completed because a

cancerous growth had formed in Mr. King’s colon. He died a few months later.

On April 16, 2018, the Plaintiffs filed this wrongful death action, claiming that Dr.

Ramani was negligent in advising Mr. King that he did not need a follow-up

colonoscopy until as long as five years after the one done in April 2011. Given Mr.

King’s medical history, they allege, the standard of care required Dr. Ramani to

advise Mr. King to return for his next colonoscopy in three years. The negligent

advice, they further allege, resulted in a delay in the diagnosis and treatment of colon

cancer which ultimately led to Mr. King’s death.

1
 The Defendants filed a motion for summary judgment in which they argued

that the Plaintiffs’ action was barred by the statute of limitations. 18 Del. C. § 6856

requires that a medical negligence action be brought within two years of the “date

upon which such injury, [i.e., personal injury] occurred,” or, if the injury is unknown

to the injured person and cannot be discovered through the exercise of reasonable

diligence within two years of the date of injury, within three years of the date of

injury. They argued that under this Court’s precedents, “the date upon which the

injury occurred, for purposes of the [medical negligence statute of limitations, is] the

date of the alleged wrongful act or omission,” i.e. April 26, 2011.2 The Plaintiffs

made a number of arguments in opposition to the motion, including the argument

that the Superior Court should apply the continuous negligent medical treatment

doctrine and find that the statute did not begin to run until Dr. Ramani attempted to

perform the colonoscopy on March 26, 2016.

The Superior Court found that the continuous negligent medical treatment

doctrine applies to the facts of this case and held that under that doctrine the statute

did not begin to run until March 26, 2016.3 Before filing suit, the Plaintiffs sent a

Notice of Intent to investigate medical negligence to the Defendants pursuant to 18

Del. C. § 6856(4), which had the effect of tolling the statute for 90 days, which meant

2
App. to Appellants’ Opening Br. at 74 [hereinafter A__] (quoting Dunn v. St. Francis Hospital,
Inc., 401 A.2d 77, 80 (Del. 1979)).
3
See Anderson v. GI Assoc. of Del., P.A., 2020 WL 2070342, at *6 (Del. Super. Apr. 28, 2020).

2
that if the statute ran from March 26, 2016, the Plaintiffs’ complaint was timely filed.

We accepted this appeal to review the Superior Court’s ruling that the

continuous negligent medical treatment doctrine applies to the facts of this case.

For the reasons discussed below, we find that the continuous negligent medical

treatment doctrine does not apply. We also address the Defendants’ contention that

the injury occurred on the date of Dr. Ramani’s alleged negligence on April 26, 2011.

II. FACTS AND PROCEDURAL HISTORY

Dr. Ramani, a gastroenterologist, performed a number of colonoscopies on

Mr. King, who was at high risk of developing colon cancer. A colonoscopy was

performed on April 4, 2011, which showed benign tumors in Mr. King’s colon. At

a follow-up visit on April 26, 2011, Dr. Ramani recommended that Mr. King should

return for another colonoscopy in three to five years.

Steven F. Moss, M.D. is the Plaintiffs’ expert witness. Dr. Moss opined that,

after the 2011 colonoscopy, the standard of care required a repeat colonoscopy

within three years.4 Further, Dr. Moss opined that had Mr. King’s cancer been

diagnosed in 2014, it would have been treatable, and Mr. King would have had a

much better prognosis.5 Dr. Moss also opined that apart from the alleged negligent

recommendation that Mr. King return for another colonoscopy in three to five years

4
A163 (Dr. Moss Dep. Tr. at 71:3-8).
5
A159-60, 163-64 (Dr. Moss Dep. Tr. at 67:15-68:5, 71:22-72:13).

3
instead of three years, Dr. Ramani did not otherwise breach the standard of care.6

In their motion for summary judgment, the Defendants argued that under 18

Del. C. § 6856, the statute of limitations expired at the latest on April 26, 2014

because, they argued, under this Court’s precedents, the date of injury is the same as

the date of the negligent act. In addition, they argued that this was a single act of

negligence and that the continuous negligent medical treatment doctrine does not

apply.

In their opposition to the motion, the Plaintiffs made several arguments in the

alternative. They argued that the Superior Court should “[a]dopt a limited

discovery rule where there is no injury in the two (or three years) following the

alleged negligence;”7 that the Court should extend the continuous negligent medical

treatment doctrine to the last act related to the original negligence, whether or not

such act was negligent; that the Plaintiffs’ claims are not barred by the two year

limitations period contained in § 6856 because such an application violates the

Delaware Constitution; that the Plaintiffs’ claims are not barred because such an

application of § 6856 unconstitutionally treats similarly situated claimants

differently; and that the Plaintiffs’ claims are not barred because the two year period

of limitations in § 6856 violates due process.

6
A117 (Dr. Moss Dep. Tr. at 25:17-20).
7
A318.

4
 In its opinion denying the Defendants’ motion, the Superior Court reasoned

that “[f]or purposes of Section 6856, the date upon which the ‘injury’ occurred

depends on whether the case involves a single act of negligence or a continuous

course of negligent medical treatment.”8 In discussing the statute of limitations and

single acts of negligence, the court made the following observation:

With respect to single acts of negligence, the decisional
law is well-settled. The Delaware Supreme Court has
consistently held that where there is a single act of medical
negligence, typically a misdiagnosis or a failure to
diagnose, the statute of limitations for medical negligence
begins to run on the date that the single act of negligence
occurred.9

The court drew this conclusion from our decisions in Dunn v. St. Francis

Hospital, Inc.,10 Meekins v. Barnes,11 and Dambro v. Meyer.12

The court found that the cases involving a single act of negligence were not

applicable to the facts of this case:

Defendants’ reliance on the decisional law involving
single acts of negligence is misplaced for several reasons.
First, the case before the Court does not involve a single
act of negligence but instead involves a continuous course
of negligent medical treatment, which is a separate and
distinct cause of action subject to a different section 6856
analysis. Second the decisional law involving single acts

8
Anderson, 2020 WL 2070342, at *2.
9
Id.
10
401 A.2d 77 (Del. 1979).
11
745 A.2d 893 (Del. 2000) (en banc).
12
974 A.2d 121 (Del. 2009).

5
 of negligence is not applicable where, as here, the injury
and the negligence did not take place on the same date.13

The court elaborated on its finding that the alleged negligence and the injury

did not occur on the same date:

Unlike the injuries in the cases involving single acts of
negligence, Mr. King’s injury did not arise at the time of
the alleged breach of the standard of care. There is no
record evidence that Mr. King had cancer which was
missed or misdiagnosed by Dr. Ramani during the April 4,
2011 colonoscopy.

....

. . . Here, the date of negligence and the date of injury are
two separate dates. Accordingly, the decisional law
involving single acts of negligence does not apply to
Plaintiffs’ claims. Instead, application of Section 6856
to Plaintiffs’ claims is governed by the continuous
negligent medical treatment doctrine.14

The court then proceeded to analyze the continuous negligent medical

treatment doctrine, found that it applied to the facts of this case, and concluded that

the statute of limitations began to run on the date of Dr. Ramani’s last treatment of

Mr. King, when his cancer was discovered on March 26, 2016.

On appeal, the Defendants make two claims. First, they claim that the

continuous negligent medical treatment doctrine does not apply to the facts of this

case. Second, they claim that “the term ‘injury’ as it appears in 18 Del. C. § 6856

13
Anderson, 2020 WL 2070342, at *3 (internal citation omitted).
14
Id. at *3, 4.

6
is defined as when the alleged act of negligence took place, not some other vague

and undefined date of injury.”15

The Plaintiffs assert five claims. First, Plaintiffs claim that the Superior

Court’s ruling that the continuous negligent medical treatment doctrine applies and

that the statute runs from March 26, 2016 is correct and should be affirmed.

Second, they claim that “‘injury’ under 18 Del. C. § 6856, however defined, is

irrelevant to the central issue of whether the Superior Court correctly applied the

continuous negligent medical treatment doctrine.”16 Next, they claim that if this

Court does not affirm on the basis of the Superior Court’s ruling, it should extend

the continuous negligent medical treatment doctrine to encompass the facts

presented here. Next, they claim this Court should “adopt a limited discovery rule

in cancer cases” and overrule our precedents inconsistent with such a rule. 17

Finally, they repeat the constitutional arguments they made in the Superior Court.

III. STANDARD OF REVIEW

This Court reviews a denial of summary judgment de novo “to determine

whether, viewing the facts in the light most favorable to the nonmoving party, the

moving party has demonstrated that there are no material issues of fact in dispute

15
Appellants’ Opening Br. at 19.
16
Appellees’ Answering Br. at 13.
17
Id. at 20.

7
and that the moving party is entitled to judgment as a matter of law.”18

“Questions of law, including the interpretation of statutes, are also reviewed

de novo.”19

IV. DISCUSSION

Under 18 Del. C. § 6856, “No action for the recovery of damages upon a claim

against a health care provider for personal injury, including personal injury which

results in death, arising out of medical negligence shall be brought after the

expiration of 2 years from the date upon which such injury occurred.” However, if

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

diligence have been discovered by the injured person” during the two year period,

“such action may be brought prior to the expiration of 3 years from the date upon

which such injury occurred.”20

A.

This Court first recognized the continuous negligent medical treatment

doctrine in Ewing v. Beck.21 The Court explained that:

When there is a continuum of negligent medical care
related to a single condition occasioned by negligence, the
plaintiff has but one cause of action—for continuing
negligent medical treatment. If any act of medical
negligence within that continuum falls within the period

18
Homeland Ins. Co. of N.Y. v. CorVel Corp., 197 A.3d 1042, 1046 (Del. 2018) (en banc).
19
City of Wilm. v. Nationwide Ins. Co., 154 A.3d 1124, 1127 (Del. 2017).
20
18 Del. C. § 6856(1).
21
520 A.2d 653 (Del. 1987).

8
 during which suit may be brought, the plaintiff is not
obliged to split the cause of action but may bring suit for
the consequences of the entire course of conduct.22

In determining whether there is a continuum of negligent medical care related

to a single condition occasioned by negligence, the facts alleged by the plaintiff

“must be examined to see if the negligent treatment, as alleged, can be segmented or

is, in fact, so inexorably intertwined that there is but one continuing wrong.”23 If

supported by the facts in the record, “the statute of limitations runs from the date of

the last act in the negligent continuum.”24 The doctrine requires that there be a

continuum of negligent medical care, that is, negligent care which is continuous and

uninterrupted for some period of time. Where that is the case, the plaintiff is not

required to split his or her cause of action between the parts of the continuum, but

may bring a single cause of action for the entire continuum of negligent medical care

if any part of it occurs within the time required by the statute of limitations.

The continuous negligent medical treatment doctrine can be contrasted with

the continuing treatment doctrine, under which the statute of limitations begins “to

run on the last day the plaintiff received treatment from the defendant health care

provider for the same or a related condition which is the subject matter of the

22
Id. at 662 (citing Tamminen v. Aetna Cas. & Sur. Co., 327 N.W.2d 55, 64 (Wis. 1982) (emphasis
in original)).
23
Id. (citing Streitz v. LeRoy, C.A. No. 84C-OC-127 (Del. Super. Ct. Apr. 28, 1986)).
24
Id. (citing Oakes v. Gilday, 351 A.2d 85 (Del. Super. Ct. 1985)).

9
Complaint, whether or not negligence continued throughout the entire course of

treatment.”25 Under the continuing treatment doctrine, the statute of limitations is

measured from the time that treatment of a condition is completed, and an action

filed within the time allowed from that date is considered timely even if no

negligence occurred during the limitations period. “The difference between the

two doctrines, for statute of limitations purposes, is that under the doctrine of

continuous negligent medical treatment, the focus is limited to the last act in the

negligent continuum, not the last act in the treatment.”26 The continuing treatment

doctrine has been recognized in many jurisdictions, but it has been rejected in this

state as being inconsistent with § 6856.27

If the continuing treatment doctrine were the law in this state, it could be

argued that the colonoscopy that Dr. Ramani performed, or attempted to perform, on

March 26, 2016 was the last act in a continuous course of treatment and the statute

of limitations runs from that date. The continuous negligent medical treatment

doctrine which this state has adopted, however, requires more. Under that doctrine,

the statute runs from the last act in the continuum of negligent treatment. Here,

there 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

25
Id. at 659 (emphasis in original).
26
Benge v. Davis, 553 A.2d 1180, 1183 (Del. 1989) (citing Ewing, 520 A.2d at 663, n.11).
27
See Ewing, 520 A.2d at 659-61.

10
way on that occasion. The March 26, 2016 procedure, therefore, is not an act in a

continuum of negligent medical treatment. Since the treatment on March 26, 2016

does not fall within the alleged continuum of negligent medical treatment, the

Plaintiffs’ claim collapses into a single act of alleged medical negligence occurring

on April 26, 2011 and the continuous negligent medical treatment doctrine is of no

avail to them. The Superior Court erred by finding that the continuing negligent

treatment doctrine applies to the facts of this case.

B.

We now turn to the Defendants’ argument that in a case involving a single act

of negligence, the date of injury is defined as being the same as the date of

negligence. As discussed above, the Superior Court stated in its opinion that this

Court’s decisional law is well settled that where there is a single act of alleged

medical negligence, the statute of limitations runs from the date of the alleged

negligence. Appellants’ counsel has taken the same position in this Court, arguing

that under this Court’s precedents, the statute of limitations runs from Dr. Ramani’s

act of alleged negligence on April 26, 2011. If that is so, the statute has clearly run

because the action was filed more than three years after Dr. Ramani’s alleged

negligence. For the reasons that follow, however, we do not believe that our

finding that the continuous negligent medical treatment doctrine does not apply

resolves the statute of limitations issue.

11
 The Superior Court’s decision to find that the continuous negligent medical

treatment doctrine applies in this case was influenced, it appears to us, at least in part

by that court’s finding that “[u]nlike the injuries in the cases involving single acts of

negligence, Mr. King’s injury did not arise at the time of the alleged breach of the

standard of care.”28 The Superior Court’s finding that Mr. King’s injury did not

arise at the time of the alleged negligent advice appears to be supported by the

record. The April 2011 colonoscopy, it appears, revealed only benign tumors.

We will discuss the cases which caused the Superior Court and Appellants’

counsel to believe that it is well-settled that where a single act of negligence is

involved, the statute of limitations must run from the date of the alleged negligent

act.

The first such case is Dunn v. St. Francis Hospital, Inc.29 In that case the

doctor performed a back operation on the plaintiff, Fred Dunn, on July 13, 1970.

Dunn’s symptoms necessitating the operation were on the left side of his back.

However, the doctor entered Dunn’s back on the right side. In April of 1975 Dunn

started experiencing pain in his right leg. Later, in January of 1977, Dunn learned

that his leg pain may have been caused by negligence during the 1970 back

operation. On March 10, 1977, Dunn sued the doctor and the hospital where the

28
Anderson, 2020 WL 2070342, at *3.
29
401 A.2d 77 (Del. 1979).

12
operation took place. The defendants raised the statute of limitations as a defense.

The Court stated that the case presented “the question of whether the statute of

limitations commenced to run when the negligent act or omission was committed or

when the harm first manifested itself to the patient.”30

Before considering the Court’s analysis in Dunn, it is helpful to consider the

background of the law in this area at the time Dunn was decided. For this, we must

discuss the well-known case of Layton v. Allen, which established the time-of-

discovery rule in this jurisdiction.31 Layton was a medical negligence case. In

1958, Dr. Layton operated on Anna Pearl Allen’s abdomen to correct a hernia. He

left a medical instrument several inches long in Allen’s body when the operation

was concluded. It was not until seven years later, in 1965, that Allen began to

experience pain in her abdomen. When she consulted with a physician about her

pain, x-rays revealed the instrument which had been left in her abdomen. This led

to an emergency operation for removal of the instrument. Three additional

surgeries were required to repair the damage caused by the instrument and the

passage of time.

At that time there was no specific statute of limitations for medical negligence

actions. They were governed by a forerunner version of the general, two year

30
Id. at 78.
31
246 A.2d 794 (Del. 1968).

13
statute of limitations for actions based on personal injuries now found at 10 Del. C.

§ 8107. The statute, then at 10 Del. C. § 8118, provided that “No action for the

recovery of damages upon a claim for alleged personal injuries shall be brought after

the expiration of 2 years from the date upon which it is claimed that such alleged

injuries were sustained.” The Court in Layton held that:

[W]hen an inherently unknowable injury, such as is here
involved, has been suffered by one blamelessly ignorant
of the act or omission and injury complained of, and the
harmful effect thereof develops gradually over a period of
time, the injury is ‘sustained’ under § 8118 when the
harmful effect first manifests itself and becomes
physically ascertainable.32

In other words, the Court determined in that case that the date of Allen’s injury

was the date upon which the injury manifested itself in 1965, not the date of the

operation.

In Dunn, the plaintiffs made an argument which was consistent with Layton.

They argued that “there was no damage until April 1975 when pain was experienced

and until that date the ‘injury’ had not ‘occurred.’”33

Dunn’s case was governed by 18 Del. C. § 6856, which became effective on

April 26, 1976. Applying that statute, the Court rejected Dunn’s argument, stating:

This limited extension[, from two to three years,] of the
[two-year] period, in our judgment, is intended to give
consideration to the problem of an injury which is not

32
Id. at 798.
33
Dunn, 401 A.2d at 80.

14
 physically ascertainable. Such extension further appears
directly intended to limit the open-ended aspect of the
prior law which provided that in the case of an “inherently
unknowable” injury that the applicable period began to run
when the injured person became aware of his injury. . . It
simply appears on the face of the statute that s 6856(1) is
an attempt to codify the “inherently unknowable” injury
rule of the Layton case and limit it to three years.34

The Court then discussed the report to the Governor of the Delaware Medical

Malpractice Commission. The Court stated that the report of the Commission,

which drafted § 6856, “clearly indicates that the phrase ‘injury occurred’ means the

time at which the wrongful act or omission occurred. The report, referring to §

6856, reads in part: ‘[t]he overall effect will be to eliminate the uncertainty created

by the present open-ended period of limitations.’”35 After discussing the report of

the Commission, the Court concluded that “[t]hus, through examination of

legislative history, there is no doubt that the phrase ‘injury occurred’ refers to the

date when the wrongful act or omission occurred.” 36 The Court thus rejected

Dunn’s argument based on Layton and ruled that the statute of limitations ran “from

the time when the wrongful act occurred and not from the time when that act was

discovered.”37 In terms of the issue as framed, the Court found that the injury

occurred at the time of the negligently performed operation, as opposed to the date

34
Id. at 79 (citations omitted).
35
Id. (quoting Report of the Delaware Medical Malpractice Commission, pp. 3-4, Feb. 26, 1976).
36
Id. at 80.
37
Id. at 81.

15
“when the harm first manifested itself to the patient.”38

Meekins and Dambro were both cases involving a doctor’s failure to diagnose

breast cancer after performing a mammogram. In both cases, the Court followed

Dunn and found that the injury occurred when the wrongful act or omission

occurred. In Meekins v. Barnes, the plaintiff-patient, Mary Meekins, had several

mammograms performed at Women’s Imaging Center of Delaware (WIC) between

1990 and December 1994. 39 After each mammogram a radiologist, Dr. Susan

Barnes, interpreted the films, discussed her interpretation of the films with Meekins,

and advised Meekins to return for another mammogram in one year. Dr. Barnes

discussed the December 1994 mammogram with Meekins on December 21, 1994.

In October of 1995, Meekins felt a lump in her breast. She was examined by her

family physician in late November, who then referred her to Dr. Abdel-Misish. On

December 1, 1995, Dr. Abdel-Misish confirmed the existence of two masses in

Meekins’ left breast. Dr. Abdel-Misish then performed a modified radical

mastectomy on Meekins’ left breast on December 26, 1995. On April 16, 1997,

Meekins filed suit against Dr. Barnes, WIC, and Dr. Barnes’ employer. She argued

that “in December 1994, the radiologists were medically negligent by failing to

diagnose [her] cancer. [She] argue[d] that the statute of limitations did not begin

38
Id. at 78.
39
745 A.2d 893, 895 (Del. 2000) (en banc).

16
to run until she was damaged or ‘injured’ when the radiologists failed to call her

back for another mammogram six months later in June of 1995.”40 June 1995 is

when Meekins’ expert opined that Dr. Barnes should have recalled her for another

mammography after the December 1994 mammogram. The radiologists agreed

that it could be assumed that negligence occurred in December 1994. The Court

rejected Ms. Meekins’ argument that the statute of limitations did not begin to run

until six months after the December 1994 mammogram:

An act of omission can be a valid basis for a plaintiff’s
medical malpractice claim, if that act of omission occurs
“within the context of an affirmative happening or event.”
The only affirmative happening or event of the
radiologists occurred at the time of the misdiagnosis in
December 1994.

It is artificial to predicate the commencement of the statute
of limitations period, as Meekins’ argues, on the
theoretical six-month period (i.e., June 1995) from the
[sic] December 1994. . . . There was no cause of action
that actually arose in June 1995 because no affirmative
happening or event of medical negligence occurred at that
time.41

The Court, applying Dunn, ruled that the statute began running when Dr.

Barnes negligently failed to diagnose Ms. Meekins’ cancer in December 1994. The

Court stated that “[i]n theory, Meekins could have brought an action at that time had

Meekins known of the alleged negligent diagnosis, although her damages would be

40
Id. at 897.
41
Id. at 898 (internal citation omitted).

17
difficult to quantify.”42

In Dambro v. Meyer, the plaintiff, Catherine C. Meyer, had seven

mammograms performed by the defendants between 1997 and 2006.43 The first

five exams were interpreted as normal and negative for cancer. A March 8, 2005

mammogram was interpreted the same. A mammogram performed May 4, 2006

was interpreted as highly suggestive of malignancy. Meyer learned that she had a

large lesion in her breast and, following a biopsy on May 18, 2006, learned that it

was positive for cancer. On October 24, 2007, Meyer filed suit. She claimed

“that the breast cancer was present and diagnosable during her March 8, 2005,

mammogram and that defendants were negligent when they failed to diagnose the

existence of cancer during that exam.”44 The Defendants argued that the statute of

limitations began to run on the date of the negligent act, March 8, 2005, when the

misdiagnosis occurred. Meyer argued that the statute of limitations did not begin

to run until her cancer metastasized on November 1, 2005. Relying on Meekins,

this Court held that Meyer’s argument failed because her injury occurred on the date

of the allegedly negligent act, i.e., the defendants’ failure to diagnose the cancer on

March 8, 2005. This Court explained that under Dunn and Meekins, “the phrase

‘injury occurred’ in section 6856 . . . ‘refers to the date when the wrongful act or

42
Id. at 897.
43
974 A.2d 121, 124 (Del. 2009).
44
Id. at 125.

18
omission occurred.’”45 The injury, the Court further explained, “was the delay in

treatment. That injury occurred on the date that the cancer could have been

diagnosed but was not.”46

C.

We can understand how one could interpret statements made by this Court in

Dunn, Meekins, and Dambro as establishing an absolute rule that the date of the

alleged negligent act or omission is the date of injury as a matter of law. They

contain statements which suggest that. Those statements stem from the Court’s

analysis of the legislative history of § 6856 in Dunn and the Court’s characterization

of the report of the Delaware Medical Malpractice Commission as “clearly

indicat[ing] that the phrase ‘injury occurred’ means the time at which the wrongful

act or omission occurred.” 47 In Dunn, this Court was recognizing that newly

enacted § 6856 and the Commission’s report in connection therewith were

overruling Layton’s rule, as applied to medical negligence cases, that the date of the

injury may be a date, perhaps years later, when the injury manifested itself, even

though the injury was actually sustained on the date of the negligence.

The rulings in Dunn, Meekins, and Dambro that the injury coincided with the

negligence were all grounded in and supported by the evidence in those cases.

45
Id. at 132 (quoting Meekins, 745 A.2d at 897).
46
Id.
47
Dunn, 401 A.2d at 79.

19
Under the unique facts of this case, however, the trial court has made a factual

finding that “Mr. King’s injury did not arise at the time of the alleged breach of the

standard of care.”48 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. This is an unusual case, therefore, where the date of the negligent

act and the occurrence of the injury do not coincide.

V. CONCLUSION

We reverse the Superior Court’s ruling that the statute of limitations began

running on March 26, 2016 under the continuous negligent medical treatment

doctrine. We reject the Plaintiffs’ contention that the continuous negligent medical

treatment doctrine should be extended to encompass the facts of this case. We

reject the Plaintiffs’ contention that we should adopt a limited time-of-discovery rule

in cancer cases. We do not address the Plaintiffs’ constitutional arguments. They

are not ripe unless and until it is determined that this action is, in fact, barred by the

statute of limitations. We reject the Defendants’ contention that the date of

negligence and the date of injury are the same on the facts of this case. The text of

§ 6856 does not mandate that the date of negligence and the occurrence of injury

48
Anderson, 2020 WL 2070342, at *3.

20
must be deemed to coincide, even where the facts of the case do not support such a

finding.

On remand, the Defendants are free to pursue their statute of limitations

defense. If they do, the Superior Court should make a factual determination as to

when the date of injury occurred and apply § 6856 to that finding accordingly. If

the Superior Court determines that the action is barred by § 6856, the Plaintiffs may

present their constitutional arguments there.

The case is remanded to the Superior Court for further proceedings consistent

with this opinion. Jurisdiction is not retained.

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