Opinion
C.A. No. 07C-03-001.
Date Submitted: September 29, 2008.
October 27, 2008.
Joseph J. Farnan, III, Esquire, Brian E. Farnan, Esquire, Phillips, Goldman Spence, P.A., Wilmington, DE.
Dennis D. Ferri, Esquire, Morris James LLP, Wilmington, DE.
John D. Balaguer, Esquire, Stephen J. Milewski, Esquire, White and Williams LLP, Wilmington, DE.
Dear Counsel:
Pending before the Court is Plaintiffs' Motion to Amend the Complaint. For the reasons set forth herein, Plaintiff's Motion to Amend the Complaint is granted.
Factual Background
The Complaint, filed on behalf of Nancy McConnell and decedent Sammy Joe McConnell (collectively "Plaintiffs"), alleges that Mrs. McConnell, took her husband, Mr. McConnell, to the Cedar Tree Medical and Urgent Care Center ("Cedar Tree") to obtain medical treatment from Defendant Dr. Damouni. Plaintiffs allege during the visit Dr. Damouni performed a chest x-ray on Mr. McConnell, and the x-ray report indicates that Cedar Tree provided the chest x-ray. Plaintiffs allege Dr. Damouni misdiagnosed Mr. McConnell with pneumonia when he was actually suffering from a pulmonary embolism. A few days after the office visit, Mr. McConnell was rushed by ambulance to Beebe Medical Center where he died from a pulmonary embolism.
Prior to filing suit, Plaintiffs sent various letters to Cedar Tree requesting medical records for Mr. McConnell, including letters to (i) Dr. Baganz on October 3, 2006, (ii) individuals named "Kay" and "Jerry," who gave the impression that they were Cedar Tree employees, on November 28, 2006, and (iii) a second letter to "Jerry" on December 19, 2006. Pursuant to 18 Del. C. § 6856(3), on February 23, 2007, Plaintiffs sent a certified letter to Cedar Tree concerning Plaintiff's investigation of claims against it, and the letter was signed for by "P. Graziano." It appears that P. Graziano signed the return receipt as an employee of Lewes Surgical and Medical P.A. ("LSM").
On March 2, 2007, Plaintiffs filed their Complaint naming Dr. Damouni and Cedar Tree as defendants. The time for serving the Complaint and Summons expired on June 29, 2007. On March 21, 2007, Cedar Tree was served with process by the Sussex County Sheriff's Office. According to the proof of service, "Deputy Lenny Sekscinski served Kay Wyatt (Office Recpt.) . . ." It now appears Kay Wyatt is an employee of LSM. On April 9, 2008, the Court conducted a status conference with respect to Plaintiffs' case against Cedar Tree. As a result of the status conference, counsel for Dr. Damouni agreed to provide information to Plaintiffs concerning Cedar Tree. On April 30, 2008, Dr. Damouni's counsel submitted to Plaintiffs an Affidavit executed by Semann Abboud, M.D. According to Dr. Abboud, Cedar Tree is the name of LSM's offices on Longneck Road and is not a corporate entity. After agreeing to withhold from filing a motion to amend to add LSM as a party until Dr. Damouni's counsel returned to the office, Plaintiffs filed a Motion to Amend the Complaint on July 11, 2008.
Procedural Background
Plaintiffs filed its Complaint on March 2, 2007. Plaintiffs filed a Motion to Amend its Complaint on July 11, 2008, to substitute LSM for Cedar Tree. In response thereto, LSM filed its Motion to Intervene in Opposition to Plaintiffs' Motion to Amend its Complaint on August 11, 2008. The Court heard argument from counsel on the motions on August 15, 2008, and requested additional briefing from the parties. The parties finished supplemental briefing in September 2008.
Discussion
Defendants object to Plaintiffs' attempt to amend its Complaint on the basis that LSM did not know that the lawsuit would have been brought against it but for a mistake in naming Cedar Tree. Neither party disputes that the conduct alleged in the Amended Complaint arises out of the same conduct alleged in the Complaint. Additionally, neither party disputes that the notice of the lawsuit was timely served.
I conclude that Plaintiffs properly moved to amend its Complaint and grant its request to do so.
The Motion to Amend the Complaint
In order to determine if the complaint may be amended, the Court must look to Superior Court Civil Rule 15 ("Rule 15"). The pertinent parts thereof provide as follows:
(a) Amendments. A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. (Emphasis Supplied)
(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when
(1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or
(2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or
(3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party. (Emphasis Supplied)
"Judicial discretion is the exercise of judgment directed by conscience and reason, and when a court has not exceeded the bounds of reason in view of the circumstances and has not so ignored recognized rules of law or practice so as to produce injustices, its legal discretion has not been abused." Coleman v. Pricew aterho useCo opers, LLC, 902 A.2d 110 2, 11 06 (De l.200 6).
This rule was amended in 1993. The version of Rule 15(c) in effect in 1993 provided:
(c) Relation Back of Amendments. Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment changing the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against the party to be proud in by amendment, that party (1) has received such notice of the institution of the action that the party will not be prejudiced in maintaining defense on the merits, and (2) knew or should have known, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Whether a proposed amendment satisfies the requirements of Rule 15(c) is at the trial court's discretion. Annone v. Kawasaki Motor Corp., 316 A.2d 209.
The most significant difference between the prior and present versions of the rule is that, instead of requiring notice within the limitations period, relation back is permitted as long as the added party had notice within 120 days following the filing of the complaint. Taylor v. State Farm Insurance Co., Del. Super., C.A. No. 93C-07-116-1-CV, Babiarz, J. (May 2, 1994) at 2-3.
Notice of a Lawsuit Prior to the Expiration of the Statute of Limitation and the Time Period for Service of the Summons and Complaint
In order for Plaintiffs to amend the Complaint to substitute LSM for Cedar Tree, LSM must have had notice of the lawsuit prior to the expiration of the statute of limitations or prior to the expiration of the time period for service of the summons and complaint. The medical negligence alleged in this case occurred on March 4, 2005. Thus, absent an exception, the two year statute of limitations provided by 18 Del. C. § 6856 expired on March 4, 2007. However, in this case, Plaintiffs sent a Notice of Intent to Investigate letter to Cedar Tree pursuant to 18 Del. C. § 6856 (3), which extends the statute of limitations by ninety (90) days to Monday, June 4, 2007. LSM clearly had notice of this action prior to June 4, 2007 as a LSM employee accepted service of the Complaint on March 21, 2007 and Dr. Damouni, also a LSM employee, began defending this action in April of 2007. Alternatively, LSM had notice of this action prior to the expiration of the time period of service the Summons and Complaint. As noted above, this action was filed on March 2, 2007. Pursuant to Rule 4(j), a party has 120 days to serve the summons and complaint. In this case, the deadline for serving the Summons and Complaint was June 29, 2007. Again, LSM accepted service of the Complaint on March 21, 2007 and Dr. Damouni began defending this action in April of 2007. Clearly, LSM had notice of this action prior to June 29, 2007. Defendants do not dispute that notice of the lawsuit against Cedar Tree and Dr. Damouni was served upon Kay Wyatt, a LSM receptionist on March 21, 2007, which is within the 120 day period permitted by Superior Court Civil Rule 4(j). Accordingly LSM had notice of this action prior to the expiration of the statute of limitations and the time period for service of the summons and complaint, and as such, the first prong of the Rule 15(c) test is satisfied.
To the extent LSM relies on Mullen v. Alamguard of Delmarva, Inc., 625 A.2d 258 (Del. 1993) in support of its proposition that the defendant must have knowledge of the suit solely within the time period prescribed by the statute of limitations, Plaintiffs note that Mullen was decided under a prior version of Rule 15(c) that required notice within the statute of limitations period. Rule 15(c) has since been amended to its current form discussed above.
Conduct Alleged in the Amendment Complaint Must Arise Out of the Same Conduct Alleged in the Complaint
In order for Plaintiffs to amend the Complaint to substitute LSM for Cedar Tree, the amendment making LSM a defendant must arise out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading. The proposed Amended Complaint merely substitutes LSM for Cedar Tree. As such, the proposed Amended Complaint arises out of the same conduct set forth in the Complaint, and, as such, the second prong of the Rule 15(c) test is satisfied.
The Party to be Brought in by Amendment Knew or Should Have Known That But for a Mistake, the Action Would Have Been Brought Against The Party
In order for Plaintiffs to amend the Complaint to substitute LSM for Cedar Tree, LSM must have known or should have known that the lawsuit would have been brought against it but for a mistake in naming Cedar Tree. Plaintiffs assert that LSM conducts business under the name Cedar Tree. LSM admits in its Response that some of its "medical records and correspondence bear the name of Cedar Tree". Plaintiffs are able to produce evidence which supports the notion that LSM conducts business under the name Cedar Tree and knew or should have known it was the proper defendant in this case. To briefly summarize the overwhelming relevant exhibits: the fax header on LSM's response reads "Cedar Tree Medical Center," not LSM; LSM's x-ray reports bear the name Cedar Tree; LSM has new patients release their medical records from their prior provider to Cedar Tree; LSM employees accept and respond to correspondence addressed to Cedar Tree; LSM employees hold themselves out as employees of Cedar Tree; LSM produces medical records requested from Cedar Tree; LSM accepted Plaintiffs' Notice of Intent to Investigate the events causing Mr. McConnell's death; Dr. Damouni required patients to sign an appointment form identifying Cedar Tree, not LSM; a report from LabCorp for Mr. McConnell that lists the account on the upper hand corner as "Cedar Tree Medical", not LSM; and LSM accepted service of process of the Complaint even though the Summons was addressed to Cedar Tree.
Defendants attempt to argue there is no identity interest between LSM and Cedar Tree. Defendants contend that LSM does not conduct business under the name Cedar Tree by providing the Court with a LSM/Cedar Tree billing statement with no relation to this case that bears the name "Lewes Surgical and Medical Assoc.". Defendants rely on Johnson v. Paul's Plastering, Inc., in articulating this argument. Johnson stands for the proposition that Rule 15(c) does not protect a plaintiff who is fully aware of a potential's defendant's identity even if the plaintiff is not fully aware of that defendant's responsibility for the harm alleged. (Emphasis Supplied). Johnson v. Paul's Plastering, Inc., 1999 WL 744427 (Del.Super. July 20, 1999). This argument does not override the mountain of undisputed evidence that demonstrates LSM conducts business under the name Cedar Tree. It would be difficult for Defendants to prove there is not an identity interest and that Plaintiffs were fully aware or simply failed to ascertain that LSM was a potential defendant when LSM admits it conducts business under the name Cedar Tree.
Whether the party to be added and an existing party have an identity interest is relevant as evidence of whether the party to be added knew or should have known of the mistake. Mullen v. Alarmguard, 625 A. 2d 258,265 (Del.Supr. 1993).
Next, Defendants argue that the Motion to Amend the Complaint should be denied because Plaintiffs were dilatory in not attempting to discover the full extent of LSM's involvement. Defendants contend that Plaintiffs waited until July 22, 2008, well over a year after the expiration of the Statute of Limitations, to file Motion to Amend the Complaint when they could have conducted depositions and investigated the issue properly. However, if LSM and Cedar Tree had been candid and forthcoming, LSM could have been added as a defendant before the period of limitations had expired. A party is entitled to use the full period of limitations to initiate suit, and a complaint filed on the last day is as valid as one filed at any time earlier. Here, Plaintiffs sought to amend the complaint as soon as learning the full extent of LSM's involvement in the present action.
Mullen v. Alarmguard, 625 A. 2d 258,265 (Del.Supr. 1993).
Finally, Defendants argue that LSM is prejudiced by its addition as a party to this action. This argument, although interesting, lacks merit. The only prejudice mentioned by LSM is the potential for fading memories of witnesses. First, LSM does not cite the fading memory of any specific witness. Second, the fading of memories is a factor in all litigation. Third, LSM and Dr. Damouni will likely rely on the same witnesses, and the memories of those witnesses have already been preserved or, if they have not, LSM is in the same position as Dr. Damouni (and for that matter the Plaintiffs). On the other hand, Plaintiffs will suffer prejudice because the Plaintiffs, who, as recognized by LSM, have separate claims against LSM that will be lost if the amendment is not granted.
Consequently, the Court finds that Plaintiffs established, pursuant to Rule 15(c), that the omission of LSM's name from the original Complaint was an error not of Plaintiffs' making. LSM must have known or should have known that the lawsuit would have been brought against it but for a mistake in naming Cedar Tree; and, as such, the third prong of the Rule 15(c) test is satisfied.
In summary, the Plaintiffs' arguments fall squarely within the Rule 15(c) requirements. It is apparent that the claim asserted in the amended pleading arose out of the conduct alleged in the original pleading. LSM received such notice of commencement of the action that it will not be prejudiced in defending on the merits. Further, since LSM received notice of the commencement of the action, LSM knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against it. In short, the requirements of Rule 15(c) have been met. Accordingly, Plaintiffs' Motion to Amend the Complaint is granted.
Conclusion
For the above-stated reasons, Plaintiffs' Motion to Amend the Complaint is granted.
IT IS SO ORDERED.