Summary
converting motion to dismiss to motion for summary judgment based on the addition of affidavits and medical records
Summary of this case from Highland Capital Management v. T.C. GroupOpinion
C.A. No. 02C-04-314-JRS.
Submitted: November 7, 2003.
Decided: November 25, 2003.
Upon consideration of Defendants' Motions for Summary Judgment. GRANTED.
Kenneth T. Deputy Delaware Correctional Center Smyrna, DE.
Richard W. Hubbard, Deputy Attorney General Department of Justice Office of the Attorney General Wilmington, DE.
Kevin J. Connors, Esquire Marshall Dennehey Warner Coleman Goggin Wilmington, DE.
Dear Mr. Deputy and Counsel:
Defendant, Thomas Carroll and defendant, Roy Deckler, have moved the Court for summary judgment pursuant to Delaware Superior Court Civil Rule 56. The relevant facts of this case were recited at some length in the court's opinion and order dated February 20, 2003, in which the Court granted in part and denied in part defendant Carroll's motion for summary judgment. In that decision, the Court determined that the plaintiff should be afforded additional time (90 days) for discovery to support his claim that he received inadequate medical care while incarcerated at the Delaware Correctional Center. The Court specifically directed that Mr. Deputy support his claims of medical negligence with competent expert testimony.
More than ninety days have passed and it appears that Mr. Deputy still does not have a competent expert to support his medical negligence claims. He has not asked for additional time to secure such testimony, but instead has supplied the Court with certain medical records which he contends support an inference of medical negligence. Inferences of negligence, however, are not sufficient to sustain the plaintiff's burden under Delaware's Health Care Medical Negligence Act (the "Act"). By statute, plaintiff must present a competent medical expert who will testify at trial that the medical defendant breached the applicable standard of care and that such breach proximately caused injury to the plaintiff. Neither the fact that the plaintiff is pro se, nor the fact that he is incarcerated, will excuse him from the requirement that he support his claims of medical negligence with expert testimony. Plaintiffs' claim against Roy Deckler arises from Mr. Deckler's conduct as a "health care provider" (licensed nurse practitioner). Clearly, then, the claim is subject to the Act's expert testimony requirement. With respect to the claim against Warden Carroll for his failure properly to supervise the medical staff, the Court already has determined that the success of this claim depends upon the success of the underlying medical negligence claim. Accordingly, plaintiff's claims against both defendants rise or fall on his compliance with the Act.
Indeed, it has been more than nine (9) months since the Court's decision directing plaintiff to obtain an expert.
DEL. CODE ANN., tit. 18 Del. C. § 6801 et. seq. (1999).
Id. at § 6853.
See Walls v. Cooper, 1991 WL 247806, at * 5 (Del.Supr.) (granting defendant's motion for summary judgment in the absence of expert support for plaintiff's medical negligence claims, the Court observed: "[t]he private interest at issue in Walls' medical malpractice case may be characterized as a prisoner's right to civil damages if he is the subject of medical malpractice. While this is an important interest it has not been found to be so important as to require a court to appoint expert witnesses for such plaintiffs.").
DEL. CODE ANN., tit. 18 Del. C. § 6801(5) (1999).
Deputy v. Roy, C.A. No. 02C-04-314-JRS, Slights, J. (Del.Super. Feb. 20, 2003) (Mem. Op. at 9-10).
In this case, plaintiff has been given more than adequate time to secure competent expert testimony in support of his claims. He has not done so. Consequently, defendants' motions for summary judgment must be GRANTED.
See Burkhart v. Davies, 602 A.2d 56, 60 (Del. 1991) ("We hold that, in the absence of an applicable statutory exception, when there has been an adequate time for discovery in a medical malpractice action and the record unambiguously reflects that the plaintiff's allegations are not and will not be supported by any expert medical testimony, a defense motion for summary judgment does not require the support of an expert's affidavit.").