LymeNet Law Pages
Case History Document

Roberts V. Franklin
Entered By: Marc C Gabriel/LymeNetDate Created: 7-25-94
Document Type: Decision
Title: Decision for: Roberts V. Franklin
CYNTHIA and JOHN ROBERTS, Individually and as next friend
for KYLE ROBERTS, a minor, Plaintiffs, v. CHURCHILL C.
FRANKLIN, M.D., Individually and as CHURCHILL C. FRANKLIN,
M.D., P.A., a Delaware Professional corporation, SUSAN
GORONDY, M.D., P.A., a Delaware Professional Corporation,
and ROBERT L. HICKOK, JR., M.D., P.A., a Delaware
Professional Corporation, Defendants.


C.A. No. 90C-11-252


April 14, 1994, Submitted
July 25, 1994, Decided

SUBSEQUENT HISTORY: Released for Publication by the Court August
26, 1994.


Upon Plaintiffs' Motion for a New Trial--DENIED

COUNSEL: Edmund D. Lyons, Esquire, Arenson, Ferrara & Lyons, 805
Marine Midland Plaza, 824 Market Street Mall, P.O. Box 579,
Wilmington, Delaware 19899, Attorney for Plaintiffs.

David M. Lukoff, Esquire, 1201 Market Street, Suite 2100, P.O. Box
1630, Wilmington, Delaware, 19899, Attorney for Defendant Susan
Gorondy, M.D.





This is a medical malpractice case. Essentially, it concerns an
obstetrician/gynecologist's failure to diagnose the first case of
Lyme disease ever seen in a pregnant woman in Delaware. Plaintiff
claims that the jury's verdict, coming after a three day trial on
February 3, 1994, was against the great weight of the evidence in
several respects.


In 1988, Plaintiff contracted Lyme disease, which is caused by a
spirochete bacteria, Borrelia bergdorferi. The vector for the
disease's transmission to humans is a minute deer tick. Lyme disease
got its name from the place where it was first identified, Lyme,
Connecticut. However, the disease has been reported since in a
large majority of the United States, including Delaware, and
throughout other parts of the world. Typically, [*2] the major
symptom of the disease is a characteristic bull's-eye rash, erythema
chronicum migrans, which appears at the site of the tick bite.
However, experts testified at trial that there are significant
exceptions to the typical case and when it appears the rash can be
confused with those of other conditions.

If the disease is diagnosed promptly, antibiotics will cure it.
However, untreated Lyme disease causes painful, debilitating
irritation of the joints known as Lyme arthritis, which usually is
curable but far more problematic than Lyme disease itself.
Moreover, where Lyme disease occurs during pregnancy, the newborn
is at risk. It is undisputed that Plaintiff's condition went
undiagnosed until she developed Lyme arthritis, which caused
significant discomfort and inconvenience to both her and her family.

Apparently, Plaintiff was infected while out-of-state. She
developed a rash that some experts inferred was typical. Plaintiff
first saw her family physician about her skin condition and he
diagnosed it as ringworm. Viewing the evidence in the light most
favorable to Defendant, thereafter, while Defendant was caring for
Plaintiff's pregnancy, Defendant examined Plaintiff's rash [*3]
but did not attempt to treat it. There was evidence, however, from
which the jury might have concluded that Defendant changed the
topical fungicide prescribed by Plaintiff's family physician and,
thus, Defendant also "treated" Plaintiff for Plaintiff's skin

In any event, there was expert medical testimony to the effect
that, even for an expert, the differential diagnosis of Lyme disease
can be difficult. There also was expert testimony to the effect that
the actual number of cases of Lyme disease presented to all
physicians in Delaware before and during 1988 was very small, and as
presented above, Defendant was the first Delaware ob-gyn confronted
with Lyme disease in a pregnancy. Experts testified that the first
diagnosis of any disease can be particularly challenging to a


A motion for a new trial because the jury's verdict is against the
weight of the evidence is addressed to the Court's discretion.
Storey v. Camper, Del. Supr., 401 A.2d 458, 464 (1979); quoted in
James v. Glazer, Del. Supr., 570 A.2d 1150, 1156 (1990). There is
"no clear-cut litmus test" that controls the court's exercise of
[*4] its discretion in these matters. Id. at 464. However, it is
now settled that, "barring some unusual factor in the case . . . a
trial court should not grant such a new trial motion unless the
jury verdict is at least against the great weight of the evidence."
Id. at 465. A verdict is against the great weight of the evidence
when no reasonable jury could have returned it. Implicit in this
standard of review is that the Court must view the evidence in the
light most favorable to the verdict and the Court will uphold the
verdict if the evidence supports inferences consistent with it.


Plaintiff argues that the jury's verdict was against the great
weight of the evidence in four ways. Plaintiff also points to the
length of the jury's deliberations as buttressing her claim.

Plaintiff first contends, in effect, that no reasonable jury could
have found that Plaintiff failed to prove by a preponderance of the
evidence that Defendant actually treated Plaintiff's skin condition.
As mentioned above, Plaintiff's family physician, who was not a
defendant at trial, initially misdiagnosed Plaintiff's condition as
ringworm, a skin fungus. He treated Plaintiff's condition with a
topical [*5] fungicide. Supposedly, during a later visit to
an obstetrical emergency room on July 9, 1988, Defendant changed the
fungicide. Primarily on that basis, Plaintiff claimed that
Defendant treated Plaintiff for Plaintiff's skin condition.
However, whether Defendant's conduct rose to the level of imposing
on Defendant the duty of rediagnosing Plaintiff's condition was
arguable. In any event, in light of the points discussed below, it
makes no difference here whether or not Defendant treated Plaintiff.

Plaintiff's second challenge to the jury's verdict seems
predicated on the idea that the standard of care for an obstetrician/
gynecologist in Delaware in 1988 required such a physician to be
familiar with national and local medical journals and popular press'
articles on Lyme disease. Plaintiff spent considerable time at
trial developing a body of literature with which Defendant was not
familiar. The gist of Plaintiff's claim appears to have been that if
Defendant had read the journals and the local newspaper, Defendant
would have been familiar with Lyme disease and she would have
correctly diagnosed it in her pregnant patient.

Even assuming that Plaintiff established her version of the
standard [*6] of care, which a reasonable jury readily could have
concluded that she did not establish, a reasonable jury could have
found that Defendant's violation of the standard of care with
respect to reading the professional journals and the local newspaper
did not proximately cause Plaintiff's injury. While Plaintiff argues
that an expert testified that Plaintiff presented a "classic" case of
Lyme disease, other experts testified that the differential diagnosis
of Lyme disease, which includes ruling out ringworm, is not a
straightforward proposition. Defendant presented plausible testimony
from three physicians to the effect that, in 1988, a Delaware ob-gyn
could not have been expected to distinguish the symptoms of Lyme
disease from other conditions. In short, the jury could have
concluded from the evidence that, even if Defendant had read more,
she still would have missed the call and it would not have been

Similarly, Plaintiff presented evidence that, for statistical
purposes, Lyme disease was "endemic" in Delaware as early as 1985.
However, as presented above, the actual number of cases in Delaware
was quite small and no one reported seeing Lyme disease in a pregnant
woman [*7] in Delaware until Plaintiff's case. Accordingly, the
jury could have concluded that, regardless of Lyme disease's being
characterized as "endemic," it would have been highly unusual for a
physician, and unprecedented for an ob-gyn, to have seen a case of
Lyme disease in Delaware in 1988.

Finally, the jury deliberated approximately one half hour before
returning its verdict. Plaintiff complains that the jury must have
ignored much of the evidence. As Defendant points out, under the
totality of the circumstances in this case, that is not necessarily
so. Short jury deliberation may indicate only that the jury believed
the evidence was overwhelming. See Rezac v. Zurkow, Del. Super.,
C.A. No. 91C-07-034, Steele, J. (August 26, 1993) (twenty minute
verdict after four day trial upheld) and Williams v. Altschuler, Del.
Super., C.A. No. 88C-SE-148, Babiarz, J. (January 27, 1994) (ninety
minute verdict upheld after three day trial).

Frankly, this was not a razor close case. To be sure, Plaintiff's
condition was misdiagnosed and Plaintiff suffered mightily for it.
If the defendant at trial had been Plaintiff's family physician, the
jury might have taken longer; it may or may not have [*8] reached
the same result. However, Defendant was not the primary treating
physician for Plaintiff's skin condition. By the time Defendant saw
Plaintiff's non-pregnancy related skin condition, it had already been
misdiagnosed as ringworm by Plaintiff's primary healthcare provider.
On balance, it would have been difficult for the jury to see how
Defendant breached any standard of care owed to Plaintiff.

Again, the Court recognizes, and the jury probably also
recognized, that Plaintiff sought medical help for a serious
condition, she did not receive it and she was seriously injured.
Anyone who heard the evidence, including the jury, had to be
sympathetic to Plaintiff for the misery that Lyme disease caused
Plaintiff and her family. Nevertheless, the weight of the evidence
with respect to this particular defendant's culpability not only was
not in Plaintiff's favor, it was in Defendant's favor.
Accordingly, Plaintiff's motion for a new trial is DENIED.


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