Delaware Supreme Court: Physician Referral To Specialist Cures Pre-Referral Negligence; New Stance On Proximate Cause / Supervening Cause

The Supreme Court of Delaware today issued an opinion in Spicer v. Osunkoya, No.102, 2011, which is important in two respects: First, the Court rules that a referring physician has no duty of care to the patient after the referral to a specialist is made, unless the referring provider knows or should have known that the specialist was incompetent or acted in concert with the specialist. Second, the Court gives us an interesting opinion on proximate cause.

In this medical negligence case, the plaintiff was a minor. She suffered anoxic brain injury after a tonsillectomy performed by Stephen Cooper, a Dover ENT. Through her mother, she sued her primary care physician, Abimbola Osunkoya, as well as Dr. Cooper. Apparently, the case against Osunkoya was dismissed prior to trial, and the Supreme Court accepted the Plaintiff's interlocutory appeal.

Spicer alleged that Osunkoya was negligent in errantly diagnosing recurrent tonsillitis, negligent in referring her to Cooper, and negligent in failing to insure that Cooper had all her records and a complete history. She alleged that Cooper was negligent in errantly diagnosing recurrent tonsillitis, negligent in performing an unnecessary tonsillectomy, and negligent in prescribing an overdose of Oxycodone for post-operative pain, which allegedly resulted in respiratory depression and brain damage.

The Supreme Court of Delaware ruled first that the dismissal was affirmed on the basis that Dr. Osunkoya no longer owed any duty to Spicer once he made the referral. The Court stated that as long as there was no evidence to suggest Dr. Osunkoya knew or should have known Cooper was incompetent, and as long as Dr. Osunkoya did not continue to treat Spicer in concert with Cooper, then there is no duty of care after the referral to the specialist was made.

The Court then (in dicta, mind you) goes into an analysis of proximate cause. The Court writes that even if Dr. Osunkoya was negligent in failing to properly diagnose the condition, any negligence is only a "remote cause" and cannot form a basis for liability. The Court acknowledges that the alleged negligent failures by Dr. Osunkoya would satisfy a "but for" cause analysis, but then goes on to state that the alleged negligent acts by Dr. Cooper were "superseding".

The reasoning of this opinion seems to conflict with the Court's own prior case law (see, e.g., Jones v. Crawford, 1 A.3d 299 (Del.2010)) and with Superior Court Pattern Jury Instruction 21.3 on...