IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MICHELLE McGONIGLE )
)
Petitioner, )
) C.A. No. S23C-08-036 MHC
v. )
)
BAYHEALTH MEDICAL CENTER, INC. )
t/a, d/b/a BAYHEALTH HOSPITAL, )
SUSSEX CAMPUS, et al., )
)
Respondent. )
ORDER
Submitted: May 29, 2026
Decided: August 24, 2026
Caitlin E. McAndrews, Esquire, McAndrews, Mehalick, Connolly, Hulse & Ryan, P.C., Attorney for the Plaintiff
Emily Silverstein, Esquire, Stephen J. Milewski, Esquire, and Alex W. Howard, Esquire, Balaguer Milewski & Imbrogno, Attorney for the Defendant
CONNER, J.
INTRODUCTION
The present case is a medical negligence suit brought by Michelle McGonigle
and Paul McGonigle (collectively, “Plaintiffs”) against Dr. Attebery and
Comprehensive Breast Center, LLC (collectively, “Defendants”). Before the Court
is Defendants’ Motion for Partial Summary Judgment. In the Motion for Summary
Judgment, Defendants argue: (1) Plaintiffs’ contentions that Dr. Attebery caused
their injuries fail as a matter of law; (2) any claim that Defendants increased the risk
of Ms. McGonigle’s suffered complications fails as it lacks the necessary expert
testimony; and (3) Plaintiffs’ loss of consortium claim tied to Counts III and V fail
as a matter of law. For the reasons stated hereinafter, the Court is not persuaded by
Defendants’ arguments, and therefore, the Motion for Summary Judgment is
DENIED.
2
STATEMENT OF FACTS
I. MS. MCGONIGLE’S MEDICAL HISTORY
Ms. McGonigle was referred to Dr. Attebery after diagnostic imaging revealed
a potential mass in her breast. 1 Additional diagnostic imaging was ordered, and
returned unremarkable for cancer. 2 In April of 2021, Ms. McGonigle met with Dr.
Attebery again to discuss a second bilateral breast reduction.3 Ms. McGonigle had
undergone an initial breast reduction surgery in 2011 with Dr. Lohner, who Dr.
Attebery had trained under during her fellowship.4 Ms. McGonigle sought a second
breast reduction surgery due to shoulder pain and the concern of undiagnosed cancer
from the weight and density of her breasts. 5
On September 10, 2021, Ms. McGonigle underwent the second breast
reduction surgery to provide symmetry to the breasts and alleviate neck and back
pain.6 There is conflicting testimony as to whether Ms. McGonigle knew the risks
associated with a second breast reduction, such as the risk of nipple loss. After the
surgery, Ms. McGonigle testified that she was very limited in what she could do,
1
Defs.’ Mot. for Summ. J., D.I. 64, at 2.
2
Id.
3
Id.
4
Id.; Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. at 2.
5
Defs.’ Mot. for Summ. J., D.I. 64, at 2-3.
6
Id. at 3.
3
including but not limited to, changing clothes, taking a shower, and completing daily
tasks around the house. 7
Ms. McGonigle did not heal properly after the surgery and required further
medical treatment.8 Ms. McGonigle underwent an additional surgery with Dr.
Attebery in October of 2021.9 After this surgery, Ms. McGonigle testified that she
lost her nipples. 10 Ms. McGonigle discontinued her care with Dr. Attebery.11 She
sought further emergency and medical care at Penn Medicine, where she underwent
several reconstructive surgeries. 12
II. PLAINTIFFS’ EXPERT REPORT
Plaintiffs allege that Dr. Attebery deviated from the standard of care and
caused the alleged injuries. Plaintiffs’ expert, Dr. Elliot Duboys, set forth seven
alleged deviations in his expert report.13
First, Dr. Duboys opines that Dr. Attebery deviated from the standard of care
by failing to review previous surgical records from her first breast reduction surgery
with Dr. Lohner. 14 In the first breast reduction surgery, Dr. Lohner utilized a medial
7
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78, at 3.
8
Id. at 3.
9
Id. at 4.
10
Id.
11
Id. at 4.
12
Id. at 5.
13
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78, Ex. C, at 1. 14
Id. at 6.
4
pedicle as the vascular supply for the nipple-areolar complex. 15 In the second breast
reduction surgery, Dr. Attebery utilized a parenchymal pedicle and resected breast
tissue from the lateral, superior, and medial portions of Ms. McGonigle’s breasts.16
Dr. Duboys opines that by resecting the tissue in the lateral, superior, and medial
portion, Dr. Attebery compromised the blood supply to the nipple-areolar complex
that Dr. Lohner relied upon in his procedure. 17
Second, Dr. Duboys opines that Dr. Attebery deviated from the standard of
care by failing to consider the placement of incisions and scars from the first breast
reduction surgery.18 In his report, Dr. Duboys notes that the records do not mention
the presence of scars from Ms. McGonigle’s prior breast reduction surgery. 19 Dr.
Duboys opines that Dr. Attebery’s placement and incision of the “Wise Pattern”
could have compromised the circulation to the breasts.20
Third, Dr. Duboys opines that Dr. Attebery failed to provide proper treatment
regarding a skin rash that Ms. McGonigle developed after the surgery.21 Dr. Attebery
prescribed ice and a Medrol Dose Pack, which Dr. Duboys stated was not prudent.22
In his report, Dr. Duboys notes that the risks associated with the Medrol Dose Pack
15
Id.
16
Id.
17
Id. at 7.
18
Id.
19
Id.
20
Id.
21
Id.
22
Id.
5
do not outweigh the benefits.23 Ms. McGonigle was a freshly operated patient, and
the risks associated with a Medrol Dose Pack include wound breakdown and delayed
healing. 24 If the rash were an allergic reaction, removal of the tape and cleansing of
the wound would have resolved the reaction. 25 Dr. Duboys also opines that
consideration as to why the rash only appeared along the horizontal incisions, and
not all incisions, should have been given. 26 Additionally, Dr. Duboys opines that a
rash may be seen with vascular compromise, and that should have been considered
as a differential diagnosis.27
Dr. Duboys opines that the fourth deviation involves a delay in diagnosis and
treatment.28 The office note from September 16, 2021 indicated that Ms.
McGonigle’s nipples appeared “dusky.” 29 Dr. Duboys opines that dusky nipples are
a sign of vascular compromise and potential/impending wound breakdown.30
Additionally, an office note from October 21, 2021, stated: “wound dehiscence
immediately after her surgery.”31 Dr. Duboys opines that if the wound dehisced
immediately after surgery, it should have been treated at that time. 32
23
Id.
24
Id.
25
Id.
26
Id.
27
Id.
28
Id.
29
Id.
30
Id.
31
Id.
32
Id.
6
The fifth alleged deviation from the standard of care involves Dr. Attebery’s
improper blame on Ms. McGonigle’s activity level.33 Dr. Duboys opines that too
much emphasis was attributed to Ms. McGonigle’s activity level.34 Dr. Duboys
stated that the placement of the sutures into tissue of questionable viability decreased
the tensile strength of the wound, not the activity level of Ms. McGonigle.35
Sixth, Dr. Duboys found that Dr. Attebery deviated from the standard of care
by recommending that Ms. McGonigle place ice on her breast.36 Even though Dr.
Attebery instructed Ms. McGonigle not to place the ice on the incisions, there was
little room to place ice on the breast and not the incision, due to the “Wise” pattern
of the incision.37 As ice is a vasoconstrictor, it can be a contributing factor to
decreased vascularity to the nipple-areolar complex.38
Lastly, Dr. Duboys opines that Dr. Attebery deviated from the standard of care
because there was a lack of informed consent.39 Ms. McGonigle testified in her
deposition that Dr. Attebery never discussed the potential complications of breast
33
Id.
34
Id.
35
Id. at 7-8.
36
Id. at 8.
37
Id.
38
Id.
39
Id.
7
reduction surgery, such as the risk of losing nipples.40 The office visit notes rarely
document that the risks and/or complications were discussed with Ms. McGonigle.41
In his report, Dr. Duboys notes additional considerations that Dr. Attebery did
not take to minimize the loss of breast tissue and the nipple-areolar complex, and
ultimate wound dehiscence.42 The five additional considerations are as follows: (1)
failure to review previous records; (2) failure to recognize the significance of
minimal blood loss; (3) delay in diagnosis and treatment; (4) use of Nitrodur; and
(5) failure to consider the cause and/or significance of prolonged swelling.43
In the expert report, Dr. Duboys states that it his opinion to a reasonable degree
of medical certainty, that as a result of the actions and/or inactions of Dr. Attebery,
Ms. McGonigle suffered bilateral wound dehiscence with vascular compromise to
the parenchyma of the breasts and nipple-areolar complexes resulting in nipple loss
and loss of breast tissue.44 As a result of Dr. Attebery’s actions or inactions, Dr.
Duboys opines that Ms. McGonigle was required to undergo multiple breast
reconstruction and corrective surgeries, as well as follow-up procedures. 45
40
Id.
41
Id.
42
Id.
43
Id. at 8-9.
44
Id. at 9.
45
Id.
8
III. DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Defendants filed the instant Motion for Summary Judgment on March 31,
2026. 46 Defendants argue that there is no expert testimony that Dr. Attebery directly
caused Ms. McGonigle’s injuries. Therefore, Count III, the medical negligence
claim against Dr. Attebery, must be dismissed. Because Count V, the negligence
claim against the Comprehensive Breast and Surgical Center, is derivative of Count
III, it must also be dismissed. Furthermore, there is no precision or specific
percentage testimony that Dr. Attebery increased the risk of known complications.
Therefore, Counts III and V must be dismissed. Count VI, Mr. McGonigle’s loss of
consortium claim against Defendants, should be dismissed because it is derivative
of Counts III and V. Defendants argue that there is no genuine issue of material fact
and summary judgment should be granted.
IV. PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Plaintiffs filed their Response Brief in Opposition to Defendants’ Motion for
Summary Judgment on April 30, 2026.47 Defendants filed their Reply Brief on May
29, 2026.48 Defendants also filed a number of motions in limine that interacted with
the summary judgment motion. Plaintiffs argue that there is expert testimony that
46
Defs.’ Mot. for Summ. J., D.I. 64.
47
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78.
48
Defs.’ Reply Brief in support of Mot. for Summ. J., D.I. 79
9
Dr. Attebery’s actions and/or inactions caused Ms. McGonigle’s injuries and
increased the risk of her injuries. Plaintiffs argue that they have established a prima
facie case of medical negligence, including the production of an expert report and
expert testimony to establish causation. Additionally, Plaintiffs argue that Dr.
Duboys’ increased risk of harm opinions are sufficient under Delaware law.
Plaintiffs argue that because Count III has been established, and Count V is
derivative of Count III, Count V should not be dismissed. Lastly, for the same
reasons, Count VI, the loss of consortium claim, should not be dismissed. For these
reasons, Plaintiffs ask the Court to deny Defendants’ Motion for Summary
Judgment.
STANDARD OF REVIEW
Under Delaware Superior Court Civil Rule 56, a party is entitled to summary
judgment when there is no genuine issue as to any material fact and the moving party
is entitled to a judgment as a matter of law.49 If the moving party satisfies the initial
burden, then the burden of proof shifts to the nonmoving party to establish the
existence of genuine issues of material facts.50 The Motion will be viewed in the
light most favorable to the non-moving party. “[T]here is no issue for trial unless
there is sufficient evidence favoring the nonmoving party for a jury to return a verdict
49
Super. Ct. Civ. R. 56(c).
50
Brown v. Dollar Tree Stores, Inc., 2009 WL 5177162, at *2 (Del. Super. Ct. 2009).
10
for that party.”51 “If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted.” 52
DISCUSSION
I. PLAINTIFFS’ CLAIM THAT DR. ATTEBERY CAUSED THEIR
INJURIES DOES NOT FAIL AS A MATTER OF LAW.
Plaintiffs have produced sufficient expert testimony to support their claim that
Dr. Attebery caused Plaintiffs’ injuries. Plaintiffs’ standard of care and causation
expert, Dr. Duboys, testified regarding Dr. Attebery’s alleged deviations from the
standard of care in the treatment of Ms. McGonigle. Dr. Duboys also wrote an expert
report detailing the alleged deviations.
Defendants bring forth two arguments to support their claim. First, Defendants
argue that Count III, the negligence claim against Dr. Attebery, should be dismissed
because there is no expert testimony that Dr. Attebery caused Ms. McGonigle’s
injuries. Second, Count V, the negligence claim against Comprehensive Breast and
Surgical Center, should be dismissed because it is derivative of the negligence claim
against Dr. Attebery. For the reasons discussed hereinafter, Defendants’ arguments
do not prevail.
A. There is expert testimony that Dr. Attebery caused Ms. McGonigle’s
injuries.
51
Health Sols. Network, LLC v. Grigorov, 2011 WL 443996, at *2 (Del. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). 52
Id. at 250-51.
11
Plaintiffs have produced expert testimony that Dr. Attebery caused Ms.
McGonigle’s injuries. Delaware law requires a plaintiff to present expert medical
testimony as to: “(1) the applicable standard of care; (2) the alleged deviation from
the standard; and (3) the causal link between the breach of the standard of care and
the alleged injury.”53 “Delaware law mandates that such medical opinions ‘be based
on a reasonable degree of medical probability.’”54 While it is “strongly encouraged”
that experts state their opinion in terms of “of reasonable medical probability” or a
“reasonable medical certainty,” experts are not required to use such terminology.55
It is the Court’s discretion to determine whether an expert’s opinion satisfies the legal
standard. 56 Experts may not base their opinions on speculation or conjecture.57
“Therefore, an expert witness's testimony ‘concerning possible medical
consequences, rather than ... reasonable medical probability’ [is] impermissible
speculation.” 58 Delaware courts have found that “[t]he absence of an expert opinion
stated with reasonable medical probability as to negligence or causation warrants
summary judgment.”59
53
Trott v. Bayhealth Med. Ctr., Inc., 2024 WL 658859, at *6 (Del. Super. Ct. 2024). 54
Id. at *7.
55
Id.
56
Id.
57
Id.
58
Id.
59
Id.
12
In the case, Trott v. Bayhealth, the Court found that the plaintiff’s expert
testimony did not establish that the nurses’ breaches of the standard of care
proximately caused the plaintiff’s injury. 60 In Trott, the expert opined within a
reasonable degree of medical certainty that the nurses deviated from the standard of
care in their treatment of the plaintiff. 61 However, the expert repeatedly testified that
“he could not opine that the nurses’ deviation from the standard of care more likely
than not changed the outcome.”62 The expert declined to opine with medical
probability or certainty that the nurses’ negligence and deviation from the standard
of care caused the plaintiff’s injury.63
In contrast, the Supreme Court of Delaware in Froio v. Du Pont Hospital for
Children, reversed the Superior Court’s judgment granting the defendant’s motion
for summary judgment.64 The Superior Court granted the defendant’s motion for
summary judgment because they found there was “‘no clear statement of what the
doctor should have done differently.’”65 In the plaintiff’s expert report, the expert
opined that several factors “may” have contributed to the injury.66 The expert opined
that the doctor deviated from the standard of care, which resulted in the injuries, and
60
Id.
61
Id.
62
Id. at *8.
63
Id. at *9.
64
Froio v. Du Pont Hosp. for Child., 816 A.2d 784, 787 (Del. 2003).
65
Id. at 786.
66
Id. at 785.
13
stated all opinions to a reasonable degree of medical certainty.67 During the expert’s
deposition, the Superior Court found that the expert provided somewhat
contradictory statements regarding whether the doctor should have known that the
patient needed an extra level of care due to her medical condition.68 However, the
Supreme Court found that the expert did not contradict herself, because even though
there were some inconsistencies in her deposition testimony, the expert did not
repudiate her opinion.69 The Supreme Court reversed and remanded the Superior
Court’s decision.
The present case is distinguishable from Trott. Dr. Duboys opined, in his expert
report and deposition, that it is his opinion, within a reasonable degree of medical
certainty, that Dr. Attebery deviated from the standard of care in the following ways:
(1) failure to review previous surgical records; (2) failure to consider
placement of incisions and scars from precious surgeries; (3) improper
treatment; (4) delay in diagnosis and treatment; (5) improper blame on
patient’s activity level; (6) use of ice; and (7) lack of informed
consent. 70
Dr. Duboys’ expert report also contains a discussion section, where Dr. Duboys lists
additional considerations that must be taken to minimize the loss of breast tissue and
67
Id.
68
Id. at 787.
69
Id.
70
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78, Ex. C, at 7-8.
14
the nipple-areolar complex and ultimate wound dehiscence that were not considered
by Dr. Attebery. These considerations are listed as follows:
(1) failure to review previous records; (2) failure to recognize
significance of minimal blood loss; (3) delay in diagnosis and
treatment; (4) use of Nitrodur; and (5) failure to consider cause and/or
significance of prolonged swelling.71
Additionally, in his expert report, Dr. Duboys expressly offers causation
expert testimony. Dr. Duboys wrote the following:
It is my opinion within a reasonable degree of medical certainty, that as
a result of the actions and/or inactions of Dr. Attebury, MM [Ms.
McGonigle] suffered bilateral wound dehiscence with vascular
compromise to the parenchyma of the breasts and nipple areolar
complexes resulting in nipple loss and loss of breast tissue.72
Dr. Duboys opined that as a result of these injuries, Ms. McGonigle was required to
undergo additional procedures and multiple breast reconstruction and corrective
surgeries. 73 During his deposition, Defendants had the opportunity to question Dr.
Duboys regarding his expert report and his causation opinions.
Even so, Defendants argue that there is no expert testimony that Dr. Attebery
caused Ms. McGonigle’s injuries. Defendants argue that Dr. Duboys did not testify
that Dr. Attebery caused Ms. McGonigle’s injuries, but rather, a “handful” of medical
decisions contributed to the increased risk of nipple loss.74 However, similar to
71
Id. at 8-9.
72
Id. at 9.
73
Id.
74
Defs.’ Mot. for Summ. J., D.I. 64, at 2.
15
Froio, Dr. Duboys’ expert report, along with his deposition testimony, demonstrate
that Dr. Duboys opines that all of the alleged deviations, taken together, caused the
injuries. In Froio, the expert listed six deviations of the standard of care, opined that
these several factors may have contributed to the patient’s injuries, stated that the
deviations in the standard of care resulted in the injury, and stated her opinions to a
reasonable degree of medical certainty.75 Once again, Dr. Duboys stated in his report
that Dr. Attebery’s actions and/or inactions caused Ms. McGonigle to suffer bilateral
wound dehiscence with vascular compromise to the parenchyma of the breast and
nipple-areolar complexes, resulting in nipple loss and breast tissue. He testified in
his deposition that all of the deviations taken together caused the injury. In both his
expert report and deposition, he stated that his opinions are based on a reasonable
degree of medical certainty.
Defendants also argue that during his deposition, Dr. Duboys could not say to a
reasonable degree of medical certainty that the location of the new incisions
contributed to the complications. 76 Defendants argue that Dr. Duboys’ testimony
was too speculative, because he said the decision to prescribe the Medrol Dose Pack
or to provide a full thickness incision to the pectoralis fascia “could have”, or
“might” have contributed to the increased risk. 77 In his deposition, Dr. Duboys stated
75
Froio, 816 A.2d at 787.
76
Defs.’ Mot. for Summ. J., D.I. 64, at 14.
77
Id.
16
that “[i]f she went down to pectoralis fascia in the inferior aspect or the transverse
incision over there, that could have compromised the circulation.”78 However, he
continued to say, “[t]his would be a deviation, and . . . this combined with other
attributed to the overall complication that Ms. McGonigle sustained.”79
Furthermore, in his report, Dr. Duboys states that “it was not prudent” to initially
place Ms. McGonigle on the Medrol Dose Pack, as the risks outweigh the benefits.80
Dr. Duboys lists this as a deviation, and stated in his deposition that he believed Dr.
Attebery breached the standard of care by prescribing the steroid to Ms. McGonigle
at the time that she did. 81 Dr. Duboys further testified that he does not believe that
the use of steroids itself would have caused nipple loss, but the use of steroid
impacted the nipple loss and wound breakdown.82 Dr. Duboys then testified to a
reasonable degree of medical probability that the steroids, taken with the other
deviations, “certainly contributed to the wound breakdown.”83
If Defendants believe there are inconsistencies in Dr. Duboys’ testimony, then
they may explore those inconsistencies on cross-examination. Delaware courts have
found that “[c]ontradictory statements are not fatal where the expert does not
78
Tr. of Dr. Duboys’ Deposition, at 54:13-16.
79
Id. at 54:19-23.
80
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78, Ex. C, at 7. 81
Id.
82
Tr. of Dr. Duboys’ Deposition, at 67:8-19.
83
Id. at 67:13-69:13.
17
repudiate an opinion finding a standard and violation.”84 So long as the expert’s
testimony provides the minimal evidence of the appropriate standard of care and a
breach of that standard, any inconsistencies in the expert’s testimony must be
resolved by a jury and are thus irrelevant for ruling on a Motion for Summary
Judgment.85 After a careful reading of Dr. Duboys’ deposition transcript, the Court
does not find that he repudiated his opinions.
The Court finds that Dr. Duboys’ causation testimony is sufficient to survive the
Motion for Summary Judgment. By accepting Plaintiffs’ argument, the Court is not
ignoring Dr. Duboys’ deposition testimony and solely relying on his report, as
Defendants suggest in their Reply Brief in support of their Motion for Summary
Judgment.86 Rather, the Court is analyzing Dr. Duboys’ expert report in conjunction
with his deposition testimony. The Court is satisfied that Plaintiffs have established
causation expert testimony based on Dr. Duboys’ expert report and deposition
testimony.
Defendants also argue that if the Court accepts Plaintiff’s theory, then depositions
would be irrelevant, and motions in limine and motions for summary judgment
would be moot.87 Defendants cite to Rule 26 of the Delaware Superior Court Rules,
84
Vogel v. Duran, 2009 WL 2574089, at *2 (Del. Super. Ct. 2009)(citing Froio v. Dupont Hospital for Children, 816 A.2d 784, 787 (Del.2003)).
85
Green v. Weiner, 766 A.2d 492, 495-96 (Del. 2001).
86
Defs.’ Reply Br. in Supp. of the Mot. for Summ. J., D.I. 84, at 2. 87
Id.
18
stating that parties are required to disclose expert opinions, and the basis of those
opinions, so the opposing party can properly prepare for depositions and trial.
However, it is unclear how accepting Plaintiffs’ argument would amount to a “wild
goose chase”, prevent meaningful opportunity for cross-examination at trial, or
eliminate motion practice, as Defendants claim. 88 Dr. Duboys prepared his expert
report and was deposed by Defendants. Defendants do not argue that Dr. Duboys’
deposition testimony exceeded the scope of his expert report.
For these reasons, the Court is satisfied that Plaintiffs have met their burden of
establishing expert causation testimony, and there is a genuine issue of material fact
as to whether Dr. Attebery caused Plaintiffs’ injuries.
B. Plaintiffs Are Not Required to Establish Every Subpart in the Complaint.
Defendants argue that Plaintiffs have not established several subparts of
Paragraph 42 of the Complaint. However, Plaintiff is not required to establish every
subpart of the Complaint.
Defendants argue that the following subparts of Paragraph 42 were not
established by expert testimony: (1) failure to diagnose and treat Ms. McGonigle;
(2) failure to properly order and perform diagnostic test results; (3) failure to consult
proper medical personnel; (4) failure to supervise and control others caring for Ms.
McGonigle; (5) failure to perform proper diagnostic testing; (6) failure to refer Ms.
88
Id. at 3.
19
McGonigle to a proper medical specialist; (7) performing an unnecessary second
breast reduction; (8) improperly performed the surgical procedure; (9) failure to
connect blood supply during the October 8, 2021 procedure; and (10) allowing the
worsening of condition resulting in additional injuries.89
While the Court agrees that expert testimony has not been provided to support
some of these subpart arguments, Plaintiffs do not argue that every subpart was
proven by expert testimony. Instead, Plaintiffs argue that they are not required to
prove every single allegation set forth in the Complaint. 90 Plaintiffs produced Dr.
Duboys’ expert report, which detailed seven deviations from the standard of care.
Defendants were on notice of Plaintiffs’ medical negligence claim, and Plaintiffs
established a prima facie case for medical negligence that is supported by expert
testimony.
For these reasons, the Court will not dismiss Plaintiffs’ medical negligence
claim for failure to establish every subpart of the Complaint. Plaintiffs adequately
pled a medical negligence claim and provided expert testimony establishing the
necessary elements.
C. The Motion for Summary Judgment on Count V is Denied.
89
Defs.’ Mot. for Summ. J., D.I. 64, at 11.
90
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78, at 19.
20
Defendants argue that, in addition to the subsections in Count III, there is no
expert testimony to support Plaintiffs’ claims under Count V. In addition to the
subsections of Count III, Count V of the Complaint states that the Comprehensive
Breast Center was negligent in that its agents: (1) improperly trained staff to
diagnose and treat Ms. McGonigle; (2) improperly trained staff to order, perform,
and read diagnostic testing; (3) failure to employ proper policies and procedures;
and (4) utilized medical personnel without adequate training. 91 Defendants argue
that the only “agent” that could be identified for Count V to hold Comprehensive
Breast Center, LLC liable is Dr. Attebery. 92 Defendants state that because the
underlying claim against Dr. Attebery fails, Count V must fail as well.
However, for the reasons stated above, the claim against Dr. Attebery does not
fail. Plaintiffs have produced sufficient expert testimony, between Dr. Duboys’
expert report and his deposition transcript, to create a genuine issue of material fact
as to whether Dr. Attebery breached the standard of care and caused Plaintiffs’
injuries. Dr. Duboys set forth seven standard of care deviations, and stated that it is
his opinion, to a reasonable degree of medical certainty, that the seven deviations
contributed to or caused the nipple loss and wound breakdown. Defendants may
explore his testimony and opinions on cross examination. However, Plaintiffs’
91
Defs.’ Mot. for Summ. J., D.I. 64, at 15.
92
Id.
21
negligence claim against Comprehensive Breast Center is sufficient to survive a
Motion for Summary Judgment.
For these reasons, Defendants’ Motion for Summary Judgment on Count V, the
negligence claim against Comprehensive Breast Center, is DENIED.
II. PLAINTIFFS DO NOT NEED TO PRODUCE PERCENTAGE
EXPERT TESTIMONY REGARDING THE INCREASED RISK OF
KNOWN COMPLICATIONS.
Plaintiffs do not need to produce an expert to provide an exact statistic or
percentage quantifying how Dr. Attebery’s alleged deviation from the standard of
care increased the risk of the injuries. Both parties cite to cases involving the
increased risk of harm doctrine, which do not apply to the present case. Defendants
concede that this case does not involve the increased risk of future complications.93
However, Defendants argue that because the surgery already had a risk of nipple
loss, Plaintiffs’ expert needs to quantify how Dr. Attebery’s alleged deviations
increased the risk, with a specific percentage. 94 Plaintiffs argue that a percentage is
not required. The Court agrees with the Plaintiffs.
Both parties discuss the increased risk doctrine several times throughout their
submissions to the Court. Even though Defendants concede that the increased risk
doctrine does not apply, for the purpose of clarity, the Court will explain why it does
93
Id. at 23.
94
Id. at 24.
22
not apply to the present case. In United States v. Anderson, the Delaware Supreme
Court adopted the increased risk of future harm doctrine, which provides that “a
person may recover damages if the person's risk of suffering a negative medical
condition is increased because of medical malpractice.”28 However, the Delaware
Supreme Court “did not hold that a plaintiff must present evidence of the precise
statistical percentage” of the increased risk of future harm.29 In Debussy v. Graybeal,
the Court found that the injury compensated under the increased risk doctrine “is the
increased risk of harm, not the harm itself.” 95
The present case does not involve a future injury. Plaintiffs’ expert does not
opine that Dr. Attebery’s alleged negligence increased the risk of a future injury. Dr.
Duboys opines that Dr. Attebery deviated from the standard of care, in the ways
aforementioned, and those deviations caused Plaintiffs’ injuries. For these reasons,
the Court finds that the increased risk doctrine does not apply.
Even so, Defendants argue that the Court should follow the ruling in Kern v.
Alfred I. Dupont Institute of the Nemours Foundation, where the Court was asked to
analyze what is required to prove an increased risk of harm claim. 96 Kern was a
medical negligence case involving a 2-month-old child who underwent throat
95
DeBussy v. Graybeal, 2016 WL 7161239, at *1 (Del. Super. Ct. 2016). 96
Kern ex rel. Kern v. Alfred I. Dupont Inst. of Nemours Found., 2004 WL 2191036 (Del. Super. Ct. 2004).
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surgery to widen her trachea. 97 The surgery failed, and post-operative complications
developed. 98 The plaintiff brought suit against the hospital, alleging that the nurses
negligently monitored an intravenous tube inserted in the child’s head, which
increased the risk that the throat surgery would fail. 99 The plaintiff sought to force
the operating physician to testify as to the standard of post-operative care and
causation.100 The Court had to decide whether the increased risk doctrine could be
expanded to cover the plaintiff’s claim. However, the Court dismissed the claim
because “no expert [would] state with reasonable probability and precision what the
chances were that the surgery would have worked, much less offer any opinion as to
the percentage by which Defendant’s alleged negligence reduced the chance of
success.”101 The Court held that “percentages are vital because they form the basis
for any damages calculation by the jury. Without them, the jury would be left to
speculate.”102 However, the Court did not decide whether the increased risk doctrine
applied to the plaintiff’s case because there was no causation expert.
Defendants rely on Kern to support their argument that Plaintiffs’ expert must
specifically quantify a percentage of the increased risk of Ms. McGonigle’s injuries.
However, the present case is distinguishable from Kern. The Court in Kern did not
97
Id. at *1.
98
Id.
99
Id.
100
Id.
101
Id. at *4.
102
Id.
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decide whether the increased risk doctrine applied to the plaintiff’s case. The
plaintiff sought to force the treating physician to testify as the causation expert.
There was no expert to testify to a reasonable degree of medical certainty.
In the present case, Dr. Duboys states:
It is my opinion within a reasonable degree of medical certainty, that as
a result of the actions and/or inactions of Dr. Attebery, MM [Ms.
McGonigle] suffered bilateral wound dehiscence with vascular
compromise to the parenchyma of the breasts and nipple areolar
complexes resulting in nipple loss and loss of breast tissue.103
Dr. Duboys’ testimony does not cause the jury to speculate because it is his opinion,
within a degree of medical certainty, that the deviations alleged in his report caused
Ms. McGonigle’s injuries. Dr. Duboys’ inability to assign a percentage does not
render his testimony inadmissible, or warrant the granting of a Motion for Summary
Judgment. These arguments are better addressed on cross-examination during trial.
Plaintiffs, on the other hand, cite to Signey v. Pfaff, where the Court found that
the plaintiff’s expert was not required to provide percentages in supporting his
opinion that the doctor’s alleged deviation from the standard of care caused the
plaintiff’s injuries. 104 In Signey, the plaintiff’s expert testified that the defendant
deviated from the standard of care, but quantification of the deficits caused by the
alleged negligence “was difficult for him because it was hard to know whether Ms.
103
Pls.’ Resp. in Opp’n to Defs.’ Mot. for Summ. J., D.I. 78, Ex. C, at 9. 104
Signey v. Pfaff, 2023 WL 6449153 (Del. Super. Ct. 2023).
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Signey would have had them absent a deviation.” 105 The doctor testified that had
the defendant acted timely and appropriately, the plaintiff either would not have had,
or would have less neurological deficits than what she currently has.106 The Court
found that the doctor did not have to provide a percentage of “how much worse the
plaintiff is as a result of the Defendant’s breach.”107 “All that is required under the
instant facts is testimony that it is worse. How much worse is a question to be
decided for the jury.”108
The present case is similar to Signey. Surgeries generally have risks
associated with them. The risks of surgery may happen with or without medical
negligence, but medical negligence often increases the risk of the injuries occurring.
Similar to Signey, Dr. Duboys could not quantify “how much worse” Ms. McGonigle
was after the second breast reduction surgery. Dr. Duboys can only testify that she
is worse, and to a reasonable degree of medical certainty, she is worse due to Dr.
Attebery’s alleged deviation from the standard of care. Dr. Duboys specifically
attributes Ms. McGonigle’s injuries to Dr. Attebery’s alleged deviations in the
standard of care.
105
Id. at *2.
106
Id.
107
Id.
108
Id.
26
Dr. Duboys stated that his opinions were made with a reasonable degree of
medical certainty, and that Dr. Attebery deviated from the standard of care, causing
Ms. McGonigle’s injuries. The jury is not left to speculate. For these reasons, the
Court finds that exact percentages are not necessary in the present case.
III. PLAINTIFFS’ LOSS OF CONSORTIUM CLAIM DOES NOT FAIL
AS A MATTER OF LAW.
The loss of consortium claim does not fail as a matter of law. Defendants argue
that because the loss of consortium claim is tied to Counts III and V, which fail as a
matter of law, the loss of consortium claim must fail too. However, for the reasons
aforementioned, Counts III and V do not fail as a matter of law, and summary
judgment was denied on both counts. Therefore, Defendants’ argument on the loss
of consortium claim does not prevail. Defendants’ Motion for Summary Judgment
on the loss of consortium claim is DENIED.
CONCLUSION
For these reasons, Defendants’ Motion for Summary Judgment is DENIED.
IT IS SO ORDERED.
/s/ Mark H. Conner
Mark H. Conner, Judge
oc: Prothonotary
via File & Serve
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