Summary
In Fasset, the plaintiff alleged that he was injured when a hospital employee negligently pushed the plaintiff's wheelchair in a manner that caused the plaintiff's leg to become stuck between the floor and the wheelchair.
Summary of this case from Greenwald v. Caballero-GoehringerOpinion
C.A. No. 10C-03-201 JAP.
Submitted: May 25, 2010.
Decided: June 17, 2010.
L. Vincent Ramunno, Esquire, Ramunno Ramunno, P.A., Wilmington, Delaware. Attorney for Plaintiff.
Stephen J. Milewski, Esquire, White and Williams LLP, Wilmington, Delaware. Attorney for Defendant.
MEMORANDUM OPINION
The plaintiff was injured at the Wilmington Hospital when his leg became caught between the ground and his wheelchair as he was being transported in the hospital. The hospital has moved to dismiss because plaintiff did not file an affidavit from a physician attesting to the fact there is reasonable ground to believe the wheelchair was pushed in a negligent manner. The motion is denied because the statue requiring a so-called affidavit of merit — 18 Del. C. sec 6853 — is not applicable here.
A. Facts
The facts of this case are straightforward. The plaintiff was a patient in the Wilmington Hospital, which is owned and operated by defendant Christiana Care. At some time during his treatment Mr. Fassett was transported within the hospital in a wheelchair pushed by an unknown employee of Defendant. According to Plaintiff, he was injured when his right leg became caught between the floor and the wheelchair. He alleges that the employee pushing his wheelchair was negligent in the following respects:
a. Failed to keep a proper lookout;
b. Failed to keep the wheelchair under control so as not to injure patrons of their facility;
c. Failed to maneuver the wheelchair with due regard for the safety of all persons;
d. Failed to load the wheelchair in a proper manner so that the Plaintiff, or any part thereof, would not fall out of the wheelchair causing injury to patrons at the facility;
e. Pushed the wheelchair at the Defendant's facility in a careless, imprudent, or inattentive manner.
f. Loaded the Plaintiff in a careless, imprudent or inattentive manner;
g. Failed to exercise due care for the safety of the patrons at the facility.
Complaint, ¶ 6.
The hospital has moved to dismiss because plaintiff did not submit an affidavit of a physician stating there is reasonable grounds to believe the wheelchair was pushed negligently and that negligence was the cause of plaintiff's injuries.
B. Analysis
The hospital contends that plaintiff was required to file an affidavit of merit because his claim is ostensibly premised on medical negligence. According to the hospital the "complaint is founded on medical negligence since plaintiff is alleging a breach of standard of care and negligence of an employee of CCHS who was offering a health care professional services of pushing plaintiff in a wheelchair." The hospital's argument fails for either of two reasons: (1) the individual pushing the wheelchair was not a "healthcare provider" even though he was an employee of the hospital; and (2) pushing a wheelchair is not a "professional service."
Motion, ¶ 4.
In 1976 the General Assembly enacted a comprehensive statutory scheme to stem what it perceived to be spiraling medical malpractice insurance rates. Originally known as the "Medical Malpractice Act," the statutory scheme has, from time to time, been modified since its inception. One of those changes took place in 2003 when the General Assembly modified section 6853 to require plaintiffs, in most cases, to submit an affidavit from a physician attesting to the fact that there is reasonable grounds to believe that each defendant departed from the standard of care and that the departure proximately caused injury to the plaintiff. In cases where a defendant is board certified, section 6853 requires that affiant be board certified in the same or a similar field of medicine.
60 Del. Laws c.373.
The term "medical malpractice" was later changed in 1988 to "medical negligence". 71 Del. Laws c.373.
Section 6853 provides that "[n]o healthcare negligence lawsuit shall be filed in this State unless the complaint is accompanied by . . . [a]n affidavit of merit". The central issue here is whether this is a "healthcare negligence suit." That term is not defined in section 6853, but logically defendant must show two things in order to invoke the protections of the statute: (1) the suit arises from the conduct of a "health care provider", and (2) it is based upon "negligence" as that term is defined by the Medical Malpractice Act. Here the hospital can show neither.
Section 6853 provides exceptions to the requirement when a foreign body was unintentionally left in the body of a patient, when there was an explosion or fire which injured the patient or when a surgical procedure was performed on the wrong limb. None of these exceptions are applicable here.
1. The suit does not arise from the conduct of a "health care provider."
A literal reading of the statutory definition of "health care provider" might suggest that someone who pushes a wheelchair comes within that definition. The term "health care provider" is defined as "a person, corporation, facility or institution licensed by this State . . . to provide health care or professional services or any . . . employees or agents thereof acting within the scope of their employment." Christiana Care is licensed under Title 24 and the individual pushing plaintiff's wheelchair was allegedly an employee of Christiana Care.The court in this rare instance, however, is not confined to a literal reading of that definition. It is settled that "[u]nder Delaware law, a statute is ambiguous if . . . a literal interpretation of the statute would lead to an absurd or unreasonable result that could not have been intended by the legislature." A literal interpretation of the definition of "healthcare provider" leads to patently absurd conclusion that personnel such as jitney drivers, constables, administrative assistants, landscapers and cooks in the lunchroom are "healthcare providers" simply by virtue of their employment by a hospital. The Supreme Court has taken a much more realistic view of the term and has held that it applies only to professionals involved in patient care. In Cole v. Delaware League for Planned Parenthood, Inc. the Court concluded that:
Leatherbury v. Greenspun, 939 A.2d 1284, 1288 (Del. 2008); Ross v. State, 990 A.2d 424 (Del. 2010)(same)
530 A.2d 1119 (Del. 1987)
The question of . . . coverage under the Act is not a matter of fairness or even logic but of legislative intent to be gleaned from the language of the Act, its legislative history, and its underlying purpose. The Superior Court has previously addressed that issue in the context of a similar contention of a pharmaceutical manufacturer claiming exclusion from the Act's provisions. In Keys v. Lynam, Justice Walsh, then Judge of the Superior Court, concluded that the term "health care provider" within section 6856 of Title 18 was intended by the General Assembly to afford protection exclusively for "those professionals in direct personal contact with the patient" and whose insurance malpractice premiums were of dominant concern to the General Assembly, i.e. hospitals, physicians, and other similarly situated parties "of a profession whose legal liability in treating a patient is measured by the professional standards of his locality or community."
Id. at 1122-3.
The court recognizes that transportation of patients within the hospital is a necessary everyday occurrence, and that people who provide that transportation by pushing a wheelchair or gurney provide and important and essential service. Nonetheless, these employees are not "professionals" as contemplated by the Medical Malpractice Act. They are not subject to professional licensure nor are they directly involved in patient care. Accordingly, the hospital's motion must be denied on this basis alone.
2. The alleged conduct does not constitute "negligence" as defined in the Medical Malpractice Act.
There is a second, closely related, reason why the hospital's motion must be denied: The alleged negligence did not occur during the course of actual treatment of the patient. The affidavit of merit statute applies, by its own terms, only to cases alleging "healthcare negligence." The Medical Malpractice Act repeatedly manifests that it applies only to negligence in the treatment of patients. The definition of "medical negligence" refers to errors committed during the course of "health care or professional services rendered . . . by a health care provider to a patient." With certain limited exceptions, negligence must be proven by "expert medical testimony," and experts are required to be "familiar with the degree of skill ordinarily employed in the field of medicine on which he or she will testify." It follows that "healthcare negligence" cases are limited to alleged errors in the rendering of (or failure to render) professional services to a patient.
Plaintiff's claim is a garden variety tort claim. The gist of that claim is that the hospital's employee failed to keep a proper lookout and otherwise failed to operate the wheelchair properly while transporting Plaintiff. This is a far cry from a medical error committed during the treatment of a patient. Accordingly the court concludes that section 6853 does not apply to the instant matter because this is not a "healthcare negligence lawsuit."
C. The scope of this holding.
Perhaps it is obvious, but it may bear emphasis that the court is not holding that a "transportation case" always falls outside the Medical Malpractice Act. It is not difficult to imagine circumstances involving the transportation of a patient which could give rise to a medical negligence case. Suppose, for example that a women with a high risk pregnancy unexpectedly goes into labor while visiting friends in Rehoboth. Emergency room physicians might then be confronted with the quandary whether to deliver the child at a local hospital or transfer the mother-to-be to a hospital where she could obtain the services of a perinatologist. Decisions about whether to transfer this patient, the appropriate mode of transportation and the level of care to be provided during the transport are fraught with the exercise of professional judgment and fall well within the scope of the Medical Malpractice Act. Consequently the fact that a case may be labeled as a "transportation case" is not determinative of whether it falls inside or outside the Medical Malpractice Act. That determination must be made on the status of the actual purported wrong-doers and the nature of the negligence alleged.
For the foregoing reasons, the motion to dismiss is DENIED.