Opinion
C.A. No.: N19C-01-256 VLM
08-22-2019
MEGHAN DARLENE HOLMES, Plaintiff v. DAVID T. YUCHA, Defendant.
Bradley J. Goewert, Esq. and Catherine M. Cramer, Esq. of Marshall Dennehey Warner Coleman & Goggin. Attorneys for Defendant. Meghan Holmes, Pro Se.
MEMORANDUM OPINION Upon Consideration of Defendant's Motion to Dismiss Plaintiff's Complaint for Failure to Comply with Affidavit of Merit Requirements Pursuant to 18 Del . C. § 6853, GRANTED. Bradley J. Goewert, Esq. and Catherine M. Cramer, Esq. of Marshall Dennehey Warner Coleman & Goggin. Attorneys for Defendant. Meghan Holmes, Pro Se. MEDINILLA, J.
I. INTRODUCTION
This case arises from a medical negligence action brought by self-represented Plaintiff Meghan Holmes ("Plaintiff") against Defendant Dr. David Yucha ("Defendant") for an orthopedic surgical procedure performed on January 24, 2017. Specifically, Plaintiff alleges that Defendant committed medical negligence related to a revision and reconstruction anterior cruciate ligament ("ACL") surgery that required a second revision surgery by another orthopedic surgeon, Dr. Joseph Mesa. Defendant moves this Court to review Plaintiff's Affidavit of Merit and to dismiss for failure to satisfy the Affidavit of Merit requirements pursuant to 18 Del. C. §6853. After consideration of both parties' written submissions, for the reasons stated below, Defendant's Motion to Dismiss is GRANTED.
II. FACTUAL AND PROCEDURAL HISTORY
On January 24, 2017, Plaintiff approached Defendant seeking revision and reconstruction ACL surgery. Defendant recommended intensive physical therapy, which Plaintiff claims was reckless and disproportionate to the stress of the ACL. Plaintiff also alleges that Defendant told Plaintiff that during surgery, he planned to insert an allograft, and instead inserted metal instrumentation without Plaintiff's informed consent. Plaintiff alleges she suffered post-surgical worsening of her injury and additional pain due to the hardware. On January 18, 2019, Plaintiff underwent a second revision and reconstruction surgery by Dr. Mesa, who removed the hardware. Plaintiff alleges two theories of medical negligence—that there are no clinical nor surgical guidelines that justified Defendant's decision to perform the surgery with metal instrumentation, and that, in doing so, Defendant performed the surgery without Plaintiff's informed consent.
Compl. at 1.
Id. at 2.
Id. at 3.
See Compl. at 5.
See Pl's Aff. of Merit.
See generally Compl.
Id.
Plaintiff filed her Complaint on January 23, 2019. On January 24, 2019, Plaintiff filed a Motion for an extension to File Affidavit of Merit, which this Court granted on January 31, 2019. On February 6, 2019, Plaintiff filed her Affidavit of Merit. On April 16, 2019, Defendant filed a Motion for Review of Affidavit of Merit and a Motion to Dismiss for Failure to Comply with Affidavit of Merit Requirements Pursuant to 18 Del. C. § 6853. Plaintiff filed her Opposition to Defendant's Motion to Dismiss on May 6, 2019. Oral arguments were scheduled to be heard on August 19, 2019. Plaintiff filed a Motion for Continuance on August 6, 2019; Defendant opposed and this Court expected to hear all motions as scheduled on August 19, 2019. Plaintiff failed to appear. The matter is ripe for review.
Plaintiff filed her Complaint to the Prothonotary on January 23, 2019 and it was e-filed on January 25, 2019.
Plaintiff's motion for time extension for her Affidavit of merit was filed to the Prothonotary on January 24, 2019, but was not e-filed until January 28, 2019.
Plaintiff stated her inability to attend the court proceeding was that she had to "attend to other responsibilities" to include caring for her mother and children during the summer months, that she required "time and effort" to prepare for her appearance, and that the continuance request was "not intended to delay the process but to give all parties a fair opportunity to be represented."
III. STANDARD OF REVIEW
For purposes of a motion to dismiss for failure to state a claim under Superior Court Civil Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted as true. Even vague allegations are considered well-pleaded if they give the opposing party notice of a claim. The Court must draw all reasonable inferences in favor of the non-moving party; however, it will not "accept conclusory allegations unsupported by specific facts," nor will it "draw unreasonable inferences in favor of the non-moving party." Dismissal of a complaint under Rule 12(b)(6) must be denied if the plaintiff could recover under "any reasonably conceivable set of circumstances susceptible of proof under the complaint."
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
In re Gen. Motors (Hughes) S'holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).
Id.
Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (internal citation omitted).
Spence, 396 A.2d at 968 (citing Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952)).
IV. PARTIES' CONTENTIONS
Defendant argues dismissal is warranted because Plaintiff has failed to meet the requirements for submitting an appropriate Affidavit of Merit under 18 Del C. § 6853. By Affidavit, Defendant refers to Plaintiff's "Affidavit of Case Merit" and "Brief Operative Note" that she attached to the Complaint ("Affidavit 1"), distinct from a second Affidavit of Merit ("Affidavit 2") submitted under seal on February 6, 2019.
Defendant first highlights that Affidavit 1 was not signed by a physician; signed instead by Plaintiff. Defendant notes that while Plaintiff claims that her attached post-operative note "reflects the merits of this case as provided by Dr. Joseph Mesa . . . and by the signature of the surgeon," the note is actually written and signed by Matthew Stump, who is a Physician Assistant and not licensed to practice medicine. Moreover, Defendant argues that Plaintiff failed to attach the curricula vitae ("CV") of both Dr. Mesa and P.A. Stump, and failed to include a signature from a doctor who is Board certified in Orthopedic Surgery. Finally, Defendant contends that neither Plaintiff's Affidavit of Merit nor post-operative note make any assertion or representation of medical negligence, nor that there was a deviation from the standard of care by the Defendant, nor that any medical negligence proximately caused any alleged injury. Defendant argues that Plaintiff's post-operative note simply lists preoperative diagnoses of Plaintiff's knee and includes a procedural description of Dr. Mesa's surgical procedure. In sum, Defendant argues that Plaintiff's submissions do not conform to the requirements of § 6853 and her Complaint should be dismissed.
Def.'s Mot. for Review of Aff. of Merit and Mot. to Dismiss for Failure to Comply with Aff. of Merit Requirements Pursuant to 18 Del. C. § 6853 ¶ 5 [hereinafter Def.'s Mot.].
Id.
Id.
Id. ¶ 6.
Id.
Plaintiff counters that her Affidavits satisfy the requirements under § 6853. First, she argues that she filed a sealed Affidavit of Merit written and signed by Dr. Mesa, who practices in the same field as Defendant. She admits that his CV did not accompany the Affidavits of Merit, but that she attached it to her Response. Plaintiff contends that the submitted post-operative medical report sufficiently verifies her claims and supports the Affidavit of Merit, and dictated by Dr. Mesa. Finally, she states that because the ground for healthcare medical negligence is "so obvious based on the second reconstruction ACL surgery," "no court on healthcare medical negligence could dismiss [her] action without providing . . . the right to be heard." This Court disagrees.
Pl.'s Resp. to Def.'s Mot. for Review of Affidavit of Merit and Mot. to Dismiss for Failure to Comply with Affidavit of Merit Requirements Pursuant to 18 Del. C. § 6853 at 2 [hereinafter Pl.'s Resp.].
Id. at 4.
Id.
Pl.'s Opp. at 5-6.
V. DISCUSSION
Eighteen 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 expert witness who practices 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 ("CV")—stating there are reasonable grounds to believe that there has been healthcare medical negligence committed by the defendant and includes expert medical testimony detailing the applicable standard of care, the alleged deviation from that standard, and the causal link between the deviation and the alleged injury. Furthermore, "An expert signing an affidavit of merit shall be licensed to practice medicine as of the date of the affidavit; and in the 3 years immediately preceding the alleged negligent act has been engaged in the treatment of patients ... and the expert shall be Board certified in the same or similar field of medicine [as] the defendant." "Without a proper affidavit, a complaint sounding in medical negligence is insufficient and the statute of limitations will not be tolled."
See Enhaili v. Patterson, 2018 WL 2272767, at *2 (Del. Super. Apr. 23, 2018) (citing 18 Del. C. § 6853(c)).
Id. (citing 18 Del. C. § 6853 (a)(1); Green v. Weiner, 766 A.2d 492, 494-495 (Del. 2001)).
Enhaili, 2018 WL 2272767, at *2 (citing Benson v. Mow, 2014 WL 7007758, at *2 (Del. Super. Dec. 4, 2014)).
Here, Plaintiff failed to provide a sufficient Affidavit of Merit on two occasions. The first had several deficiencies under § 6853. Then Affidavit 2 was submitted under seal within the 60-day extension period, and this Court conducted an in camera review. Although this submission complies with some aspects of the statute, it remains deficient as a matter of law.
Under § 6853, Plaintiff's Affidavit of Case Merit is not signed by a qualified expert witness, is not accompanied by a current CV, and does not state that there are reasonable grounds that there has been healthcare negligence committed by Defendant.
See 18 Del. C. § 6853(d).
The second submission (Affidavit 2)—although purportedly signed by Dr. Mesa—is not notarized. "In order to satisfy the prima facie burden, an Affidavit of Merit must only contain an expert's sworn statement that medical negligence occurred, along with confirmation that he or she is qualified to proffer a medical opinion." Although the General Assembly intended the statutory requirements to be "purposefully minimal," plaintiffs must still clear this minimum threshold for authentication. Here, plaintiff's submission is a letter purportedly signed by Dr. Mesa, without the notarization, certification to authenticate the signature, or a sworn statement as required by statute. Thus, Plaintiff's submission is not an affidavit.
Dishmon v. Fucci, 32 A.3d 338, 342 (Del. Nov. 10, 2011).
Id.
Even if the Court were to find that the submission was an affidavit, Plaintiff failed to submit with it an appropriate CV. Under § 6853, an affidavit of merit must be accompanied by a current curriculum vitae of the witness. Here, Plaintiff attached what she called curricula vitae, not with the Affidavit, but to her Response to the Defendant's motions for review and dismissal on May 6, 2019. Thus Plaintiff's attachment of the CV—submitted well past the 60-day extension period— fails to comply with § 6853. Even if the Court could overlook the untimeliness of the submission, the submitted "CV" also does not comport with the requirements under § 6853.
Id. (emphasis added).
Section 6583 requires a current CV of the expert witness. Generally, a CV is written by the expert and includes "a fairly detailed overview of . . . life accomplishments, especially most relevant to the realm of academia." Plaintiff's CV is not written by her expert witness, but is rather a profile that appears to have been printed from the internet, specifically from US News and World Report. The "profile" provides some general information about Dr. Mesa, including his board certification and years of practice, but it fails to indicate specific information as required by § 6853, including whether he has been engaged in the treatment of patients in the three years immediately preceding the alleged negligent act. It is certainly plausible that Dr. Mesa is qualified as an expert witness in orthopedic surgery, but what is submitted does not meet the requirements under § 6853(c). This, alone, would not likely be sufficient to dismiss Plaintiff's claims.
Curricula Vitae (CV) Versus Resumes, THE WRITING CTR., UNIV. OF N. CAROLINA, https://writingcenter.unc.edu/tips-and-tools/curricula-vitae-cvs-versus-resumes/ (lasted visited Jun. 21, 2019).
See Dishmon, 32 A.3d at 344-47 (finding that the Affidavit of Merit was sufficient on its merits and holding that failure to attach a CV should be viewed as a procedural deficiency, rather than an independent basis for dismissal).
Fatal to Plaintiff's "Affidavit of Merit," however, is its failure to include any assertion of medical negligence. Section 6853 obliges a plaintiff to make a prima facie showing that there are reasonable grounds to believe that negligence occurred and caused an injury. In order to satisfy this burden, an Affidavit of Merit must only contain an expert's sworn statement that medical negligence occurred. "The affidavit . . . shall set forth the expert's opinion that there are reasonable grounds to believe that the applicable standard of care was breach by the named defendant . . . and that breach was the proximate cause of injury or injuries claimed in the complaint."
Dishmon, 32 A.3d at 344.
Id. at 342.
In this case, Plaintiff's submissions from her expert say nothing at all generally or specifically about breaches in the standard of care or proximate cause. Rather, the letter from Dr. Mesa discusses primarily that he performed a surgical procedure on Plaintiff. Dr. Mesa's letter does not allege any medical negligence nor proximate cause arising from the previous ACL reconstruction surgery performed by Defendant. Absent is any opinion from Dr. Mesa that he believes Defendant breached the standard of care or that there is any causal connection between the alleged breach and Plaintiff's claimed injury. While the medical experts do not have to "couch their opinions in legal terms...or articulate the standard of care with a high degree of legal precision or 'magic words,'" they must still comply with the requirements of § 6853. For all the reasons stated, Plaintiff's submission fails to do so.
Dishmon, 32 A.3d at 344 (citing Green v. Weiner, 766 A.2d at 495).
It is true that Delaware has a strong public policy that favors permitting a litigant a right to a day in court. Courts should apply rules with "liberal construction because of the underlying public policy that favors a trial on the merits, as distinguished from a judgment based on a default." However, while some leniency may be given to a pro se Plaintiff, that does not excuse her failure to comply with the statutory requirements.
Id. at 346 (citing Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998)).
Id. (citing Old Guard Ins. Co. v. Jimmy's Grill, Inc., 2004 WL 2154285, at *13 (Del. Sept. 21, 2004)).
Smith v. Kobasa, 113 A.3d 1081, 2015 WL 1903546, at *2 (Del. April 24, 2015) (TABLE) (citing Smith v. Correct Care Solutions, 2012 WL 3252864 (Del. Aug. 9, 2012)); See also Enhaili, 2018 WL 2272767, at *4 ("self-represented litigants must abide by the same rules that apply to all other litigants").
Pro se litigants "are expected to comply with the rules of this Court," although the Court may hold them "to a less exacting standard when reviewing their pleadings." Further, "the Court will accommodate pro se litigants only to the extent that such leniency does not affect the substantive rights of the parties." In this case, this Court would have preferred to address Plaintiff in person but she failed to appear in court. Her inability to participate in the court proceedings is not the basis for this ruling. Instead, this Court must grant Defendant's Motions because Plaintiff's "Affidavit of Merit" is insufficient under § 6853.
Maddox v. Isaacs, 2013 WL 2297030, at *2 (Del. Super. May 7, 2013), aff'd 74 A.3d 654, 2013 WL 4858989 (Del. Sept. 10, 2013) (TABLE) (citations omitted).
Id. (citing Anderson v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011); Alston v. State, 2002 WL 184247, at *1 (Del. Super. Jan. 28, 2002)).
Given Plaintiff's pro se status, the court proceeding was scheduled primarily to give the Court an opportunity to address the merits of the dispositive motion directly with Plaintiff. Since Plaintiff was unable to attend the proceedings, the Court did not hear oral arguments. It relies instead on the arguments as presented in the pleadings.
Plaintiff is unable to amend her Affidavit of Merit because the 60-day extension period has expired. Plaintiff's extension was granted on January 31, 2019, so she had until April 1, 2019 to file her amended Affidavit. She filed Affidavit 2 on February 6, 2019. A plaintiff who has already filed for an extension of time to file an Affidavit of Merit is unable to acquire another separate extension. While some courts have granted extensions to modify an Affidavit of Merit "in the interest of justice," those plaintiffs had not yet exercised the 60-day extension period and their Affidavits of Merit were closer to complying with the statute than the one here. Therefore, because Plaintiff has already exhausted her ability to receive a single 60-day extension under § 6583, she is statutorily prohibited from amending her Affidavit of Merit.
See Kuhn v. Christiana Health Services, Inc., 2006 WL 257808, at *1 (Del. Sup. Jan. 31, 2006) (dismissing Plaintiff's pro se claim because she did not file an Affidavit of Merit and having already been granted the 60-day extension period); Enhaili, 2018 WL 2272767, at *1 (denying third request for extension of time to file an Affidavit of Merit and CV because § 6853 explicitly provides for a single 60-day extension).
See, e.g., Willis v. Bayheath Surgical, Associates, 2018 WL 3343240, at *2 (Del. Sup. Jul. 9, 2018) (finding that the Plaintiff's Affidavit of Merit substantially complied with § 6853 for two defendants but not for one, thus justifying granting a 30-day extension). --------
VI. CONCLUSION
For the reasons stated above, Defendant Yucha's Motion to Dismiss Plaintiff Holmes' claim for medical negligence is GRANTED for failure to comply with 18 Del. C. § 6853.
IT IS SO ORDERED.
/s/ Vivian L . Medinilla
Judge Vivian L. Medinilla oc: Prothonotary
cc: Plaintiff
Defendant
Catherine Cramer, Esquire
Bradley Goewert, Esquire