Opinion
C.A. No. N17C-07-301 JRJ
04-23-2018
REDA A. ENHAILI, Plaintiff, v. J. DOUGLAS PATTERSON, M.D., DELAWARE ORTHOPAEDIC, and WILMINGTON HOSPITAL, Defendants.
Reda A. Enhaili, ID No. ND-2789, State Correctional Institution - Mahanoy, 301 Morea Road, Frackville, Pennsylvania, pro se Plaintiff. Bradley J. Goewert, Esquire and Lorenza A. Wolhar, Esquire, Marshall Dennehey Warner Coleman & Goggin, 1007 N. Orange Street, Suite 600, P.O. Box 8888, Wilmington, Delaware, Attorneys for Defendants J. Douglas Patterson, M.D. and Delaware Orthopaedic. Ryan T. Keating, Esquire, Morris James LLP, 500 Delaware Avenue, Suite 1500, P.O. Box 2306, Wilmington, Delaware, Attorney for Defendant Wilmington Hospital.
OPINION
Upon Plaintiff's Request for a Third Extension of Time to File an Affidavit of Merit: DENIED.
Upon Defendants' Motions to Dismiss the Complaint: GRANTED. Reda A. Enhaili, ID No. ND-2789, State Correctional Institution - Mahanoy, 301 Morea Road, Frackville, Pennsylvania, pro se Plaintiff. Bradley J. Goewert, Esquire and Lorenza A. Wolhar, Esquire, Marshall Dennehey Warner Coleman & Goggin, 1007 N. Orange Street, Suite 600, P.O. Box 8888, Wilmington, Delaware, Attorneys for Defendants J. Douglas Patterson, M.D. and Delaware Orthopaedic. Ryan T. Keating, Esquire, Morris James LLP, 500 Delaware Avenue, Suite 1500, P.O. Box 2306, Wilmington, Delaware, Attorney for Defendant Wilmington Hospital. Jurden, P.J.
I. INTRODUCTION
Plaintiff Reda A. Enhaili ("Enhaili") has filed pro se a medical negligence action pursuant to Chapter 68, Title 18 of the Delaware Code, against Defendants J. Douglas Patterson, M.D. ("Patterson"), Delaware Orthopaedic, and Wilmington Hospital (collectively, "Defendants"). Before the Court is Enhaili's request for a third extension of time to file an affidavit of merit, pursuant to 18 Del. C. § 6853(a)(1). Also before the Court are Defendants' Motions to Dismiss the action based on Enhaili's failure to file an affidavit of merit. For the reasons explained below, Enhaili's request for a third extension is DENIED, and Defendants' Motions to Dismiss are GRANTED.
Pl.'s letter req. third extension of time (Trans. ID 61673959) (D.I. 31).
Defs. Patterson and Delaware Orthopaedic's Mot. to Dismiss (Trans. ID 61583495) (D.I. 25); Def. Wilmington Hospital's Mot. to Dismiss (Trans. ID 61621910) (D.I. 28).
II. FACTS
A. Background
The gist of Enhaili's Complaint is as follows. Enhaili was admitted to Wilmington Hospital on July 31, 2015 as a result of a MRSA infection in his left middle finger. Patterson performed surgery on Enhaili's left middle finger to drain the infection. Enhaili awoke after surgery "to a very painful and disfigured and swollen still infected finger." According to Enhaili, Patterson cut a tendon in the left middle finger which caused the tip of that finger to be deformed, and that surgery caused "major nerve damage" and arthritis. Patterson advised Enhaili that once the infection cleared up, he would need to have a second surgery to reconnect the tendon. Enhaili never underwent the second surgery. He alleges Patterson refused to perform the second surgery because Enhaili failed to pay for the first surgery and owed a cancellation fee for a missed post-operative visit with Patterson. Enhaili alleges the Defendants' negligence has caused him severe pain, permanent scarring, disfigurement, disability, humiliation, severe anxiety, mental anguish, job loss, and other permanent injuries.
Enhaili identifies Wilmington Hospital as "Wilmington Christiana Care Hospital" in his Complaint. Compl. ¶ 1 (Trans. ID 60911636) (D.I. 1).
Id. at ¶¶ 1, 5.
Id. at ¶ 5.
Id. at ¶¶ 6-8.
Id. at ¶ 6.
Compl. ¶ 8.
Id. at ¶¶ 16-17.
Id. at ¶¶ 18-22.
B. Procedural History
On July 28, 2017, Enhaili filed his Complaint and a "Motion for Extension of Time" to file an affidavit of merit. Pursuant to 18 Del. C. § 6853(a)(2), the Court granted a single 60-day extension to file an affidavit of merit. Before that 60-day extension expired, Enhaili asked for a second extension of time to file an affidavit of merit, advising the Court that he had been transferred to State Correctional Institution - Graterford ("SCI Graterford"). Enhaili claimed that his transfer to SCI Graterford led to his quarantine and, therefore, he had no access to legal resources. In addition, he asked the Court to subpoena his medical records in connection with his finger surgery.
Pl.'s Mot. for Extension of Time (Trans. ID 60911636) (D.I. 1).
Order granting Pl.'s Mot. for Extension of Time (Trans. ID 61091071) (D.I. 4).
Pl.'s letter req. second extension of time dated November 6, 2017 (Trans. ID 61360782) (D.I. 7).
Pl.'s first letter regarding change of address (Trans. ID 61360782) (D.I. 6).
Id.
Id.
Before the Court could rule on his request for a second extension, Enhaili filed a submission that was sealed and labeled, "Confidential Subject to 18 Del. C. § 6853. The Contents of This Envelope May Only Be Viewed By a Judge of the Superior Court." This sealed submission was treated by Court staff as an affidavit of merit.
See Pl.'s submission filed on November 18, 2017 (Trans. ID 61374188) (D.I. 8).
By Order dated November 21, 2017, the Court denied Enhaili's request for a second extension because 18 Del. C. § 6853(a)(2) expressly provides that the Court may grant only a single 60-day extension.
Order denying Pl.'s letter req. for second extension of time (Trans. ID 61387534) (D.I. 9).
On December 28, 2017, Patterson and Delaware Orthopaedic filed a joint "Motion for Review of the Affidavit of Merit" and Wilmington Hospital filed a "Motion to Determine if the Affidavit of Merit Complies with Sections (a)(1) and (c) of Title 18 § 6853." In response, the Court conducted an in camera review of Enhaili's sealed submission and determined that it contained no affidavit of merit and no curriculum vitae as required by 18 Del. C. § 6853(a)(1) and (c).
Defs. Patterson and Delaware Orthopaedic's Mot. for Review (Trans. ID 61508916) (D.I. 17); Def. Wilmington Hospital's Mot. for Review (Trans. ID 61509587) (D.I. 21); see 18 Del. C. § 6853(d).
Order Upon Defendants' Motions to Determine if the Affidavit of Merit Complies with Sections (a)(1) and (c) of Title 18 § 6853 (Trans. ID 61544685) (D.I. 24). Enhaili's submission included photographs of his injured left middle finger.
Defendants then filed the instant Motions to Dismiss pursuant to Delaware Superior Court Civil Rule 12(b)(6). On February 9, 2018, Enhaili requested a third extension, which Defendants promptly opposed. By letter dated March 12, 2018, Enhaili notified the Court that he had been transferred to State Correctional Institution - Mahanoy.
Defs. Patterson and Delaware Orthopaedic's Mot. to Dismiss; Def. Wilmington Hospital's Mot. to Dismiss.
Pl.'s letter req. third extension of time (Trans. ID 61673959) (D.I. 31).
Defs.' Joint Opp'n (Trans. ID 61735818) (D.I. 33).
Pl.'s second letter regarding change of address (Trans. ID 61821485) (D.I. 40).
This Opinion resolves Enhaili's request for a third extension of time to file an affidavit of merit and Defendants' Motions to Dismiss.
III. STANDARD OF REVIEW
18 Del. C. § 6853(a)(1) provides that "[n]o health-care negligence lawsuit shall be filed in this State unless the complaint is accompanied by...[a]n affidavit of merit." This affidavit must be prepared by a board certified physician, practicing in the same field as the allegedly negligent party. A plaintiff must file an affidavit of merit - signed by the preparer, along with her curriculum vitae - stating there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant, and including expert medical testimony detailing the applicable standard of care, the alleged deviation from the standard, and the causal link between the deviation and the alleged injury. Without a proper affidavit, a complaint sounding in medical negligence is insufficient and the statute of limitations will not be tolled.
See 18 Del. C. § 6853(a)(1); Green v. Weiner, 766 A.2d 492, 494-95 (Del. 2001).
See Benson v. Mow, 2014 WL 7007758, at *2 (Del. Super. Dec. 4, 2014).
IV. DISCUSSION
With regard to Enhaili's request for a third extension of time to file an affidavit of merit, 18 Del. C. § 6853(a)(2) permits only a single 60-day extension for time of filing an affidavit of merit, and the Court previously granted Enhaili that extension. Enhaili's request for a third extension of time is therefore DENIED.
Pl.'s Letter Req. Third Extension of Time (Trans. ID 61673959) (D.I. 31).
See Order Granting Pl.'s Mot. for Extension of Time.
Defendants argue the Complaint must be dismissed with prejudice because Enhaili failed to file a signed affidavit of merit and curriculum vitae. In response, Enhaili makes two arguments. First, he argues that a pro se plaintiff "should not be held to the same stringent standards as an [a]ttorney." Second, he maintains that an affidavit of merit is not needed when the surgery "was performed on the wrong organ, limb, or body part [his left middle finger tendon]."
See 18 Del. C. § 6853(a)(1); Defs. Patterson and Delaware Orthopaedic's Mot. to Dismiss ¶ 3; Def. Wilmington Hospital's Mot. to Dismiss ¶ 6.
Defs. Patterson and Delaware Orthopaedic's Reply Br., Ex. C at ¶ 5 (Pl.'s Answering Br. to Defs.' Mot. to Dismiss Dated February 19, 2018) ("Pl.'s Second Resp.") (Trans. ID 61778712) (D.I. 37).
Defs. Patterson and Delaware Orthopaedic's Reply Br., Ex. B at ¶¶ 9-10 (Pl.'s Answering Br. to Defs.' Mot. to Dismiss Dated February 18, 2018) ("Pl.'s First Resp."); see Pl.'s Second Resp. ¶ 1; 18 Del. C. § 6853(b) provides that a rebuttable inference of medical negligence must be alleged in the complaint. As mentioned, Enhaili raised a rebuttable inference of medical negligence in his responses. However, in consideration of Enhaili's self-represented status, the Court considers his rebuttable inference argument.
With regard to Enhaili's first argument, 18 Del. C. § 6853(a)(1) requires a plaintiff in a medical negligence action to file an affidavit of merit signed by an expert witness and that expert's curriculum vitae, together with the complaint. As noted earlier, the affidavit of merit must state that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant, and include expert medical testimony detailing the applicable standard of care, the alleged deviation from the standard, and the causal link between the deviation and the alleged injury. 18 Del. C. § 6853(a)(1) provides no exception for self-represented plaintiffs.
Green, 766 A.2d at 494-95.
See Taylor v. Christiana Care Hospital, 2015 WL 5004892 (Del. Super. Aug. 17, 2015) (dismissing pro se plaintiff's case because the pro se plaintiff did not file an affidavit of merit). The purpose of 18 Del. C. § 6853 is to "require that expert medical testimony be presented to allege a deviation from the applicable standard of care." Adams v. Luciani, 846 A.2d 237, *2 (Del. 2003) (TABLE). "The intent of the General Assembly in enacting this provision was to reduce the filing of meritless medical negligence claims." Beckett v. Beebe Medical Center, Inc., 897 A.2d 753, 757 (Del. 2006). By requiring an affidavit of merit, the General Assembly intended to require review of a patient's claim by a qualified medical professional, and for that professional to determine that there are reasonable grounds to believe that the health care provider has breached the applicable standard of care that caused the injuries claimed in the Complaint. Id. Thus, when a pro se litigant does not comply with 18 Del. C. § 6853, the Court must dismiss the medical negligence action. See Smith v. Correct Care Solutions, LLC, 49 A.3d 1194 (Del. 2012) (TABLE) (affirming the Superior Court's dismissal of a pro se, imprisoned litigant's medical negligence action because he failed to file an affidavit of merit for each defendant named in his complaint). Although the Court will provide self-represented litigants some degree of latitude under certain circumstances, self-represented litigants must abide by the same rules that apply to all other litigants. See Colatriano v. Roman, 2017 WL 2889105, at *1 (Del. Super. July 7, 2017); Hayward v. King, 2015 WL 6941599, at *4 (Del. 2015); Anderson v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011) (internal citations omitted); Buck v. Cassidy Painting, Inc., 2011 WL 1226403, at *2 (Del. Super. Mar. 28, 2011) (internal citations omitted).
With regard to Enhaili's second argument, an affidavit of merit is not required if the complaint alleges one of three rebuttable inferences of medical negligence:
18 Del. C. § 6853(b) (emphasis added). Enhaili failed to allege a rebuttable inference in his Complaint. He raised this for the first time in his opposition to the pending motions to dismiss.
(1) A foreign object was unintentionally left in the body of the patient following the surgery;In his opposition to the Motions to Dismiss, Enhaili relies upon the last of these - a rebuttable inference of medical negligence arising from the alleged fact that a surgical procedure was performed on the wrong part of the patient's body. Enhaili argues that this rebuttable inference applies because Patterson severed "the tendon and nerves...during the incision and cleansing of the left middle finger tip," and "[t]he tendon was not infected and was severed which was not the exact location of the part of the body to be operated on during this procedure [sic]." Defendants argue that the wrong body part rebuttable inference is not applicable because surgery was not performed on the wrong part of Enhaili's body - Patterson operated on the correct finger.
(2) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; or
(3) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of the patient's body.
See Pl.'s First Resp. ¶ 10; Pl.'s Second Resp. ¶ 5. Enhaili failed to allege a rebuttable inference in his Complaint as required by 18 Del. C. § 6853(b).
Id.
Pl.'s First Resp. ¶ 10.
Defs. Patterson and Delaware Orthopaedic's Reply Br. ¶ 8; Def. Wilmington Hospital's Reply Br. ¶ 4 (Trans. ID 61790464) (D.I. 39).
This case is similar to De Roche v. Grewal. In Grewal, the self-represented plaintiff alleged that a probe perforated his artery and damaged tissue outside the artery during the course of the plaintiff's cardiac catheterization. The pro se plaintiff in Grewal failed to file an affidavit of merit, and argued he was not required to do so under the "wrong organ, limb, or part of the patient's body" exception pursuant to 18 Del. C. § 6853(e)(3). The Court granted the defendants' motions to dismiss, holding that the commonly accepted meaning of the phrase "a surgical procedure performed on the wrong...organ, limb or part of the patient's body" requires "a doctor to start and continue to perform a procedure on the wrong body part." Such was not the case in Grewal, and such is not the case here.
2016 WL 5793721 (Del. Super. Oct. 4, 2016).
Id. at *3.
Id. at *2.
Id. at *3. The Court held, in pertinent part:
The fact that there was a complication during this catheterization that may have damaged tissue surrounding the body part that was the subject of the procedure does not equate to Dr. Grewal performing the catheterization on the wrong organ, limb, or body part. Consequently, based on the common understanding of that phrase, the statutory exception to the affidavit of merit requirement does not apply.
Patterson did not perform surgery on the wrong body part - he operated on Enhaili's infected left middle finger. The alleged fact that a left middle finger tendon was cut during surgery on the left middle finger does not equate to surgery being performed on the wrong body part under 18 Del. C. § 6853(e)(3). Because Patterson performed the surgical procedure on the correct body part, 18 Del. C. § 6853(b) is inapplicable, and an affidavit of merit was required. Therefore, Defendants' Motions to Dismiss with prejudice Enhaili's medical negligence claim for failure to comply with 18 Del. C. § 6853(a)(1) are GRANTED.
Pl.'s First Resp. ¶ 10.
Cf. De Roche v. Grewal, 2016 WL 5793721, at *3.
V. CONCLUSION
WHEREFORE, IT IS HEREBY ORDERED that Plaintiff's request for a third extension of time to file an affidavit of merit is DENIED, and Defendants' Motions to Dismiss the Complaint are GRANTED with prejudice.
/s/_________
Jan R. Jurden, President Judge Original to Prothonotary
cc: Reda A. Enhaili (ID No. ND-2789)
Bradley J. Goewert, Esq.
Lorenza A. Wolhar, Esq.
Ryan T. Keating, Esq.