Opinion
No. 96C-05-122-WTQ.
Submitted: April 19, 2000.
Decided: April 25, 2000.
Letter Opinion and Order on Plaintiffs' Application for Certification of Interlocutory Appeal TRIAL COURT REFUSES TO CERTIFY.
Bartholomew J. Dalton, Esquire Dalton Associates, 919 Market Street, P.O. Box 2307, Wilmington, DE. 19899.
Anne L. Naczi, Esquire Griffin Hackett, PA., 14 The Circle, P.O. Box 612 Georgetown, DE. 19470.
Mason E. Turner, Jr., Esquire Prickett, Jones Elliott, 1310 King Street, P.O. Box 1328, Wilmington, DE. 19899.
Dear Counsel:
The Plaintiffs have filed an Application for Certification of an Interlocutory Appeal from the Letter Opinions and Orders of this Court dated February 23, 2000 and March 31, 2000 granting summary judgment in favor of Beebe Medical Center on the credentialing claim.
There seem to be two issues afloat. The Court held that the existing evidence for the Plaintiffs was insufficient, given 18 Del. C. § 6853 and D.R.E. 702, to assert a negligent credentialing claim. As Beebe suggests in its Response (Dkt. No. 202), there is nothing original about that decision. In the process, the Court upheld the statutory privilege under 24 Del. C. § 1768. It is the privilege issue that seems to be the thrust of any legal claim worthy of appeal.
"The Trial Court explained that plaintiffs are not permitted to get a hospital's privileged credentialing records, under 24 Del. C. § 1768, but in order to go forward with a credentialing claim, plaintiffs need the records." Plaintiffs' Application, Dkt. No. 198 at 2. The privilege issue was indeed one that proved somewhat agonizing for the Court. Riggs National Bank, et al. v. Boyd, et al., Del. Super., C.A. No. 96C-05-122, Quillen, J. (Feb. 23, 2000), Dkt. No. 185. The Court explored as an abstract proposition the situation where an upholding of the privilege might deprive a plaintiff of a claim.
It should be noted that Beebe Medical Center has delivered in camera a copy of its eredentialing file as well as a supplemental affidavit requested by the Court. These documents have been filed together under seal with the Prothonotary. Dkt. No. 200. Nothing in these documents has led the Court sua sponte to alter its opinion.
The privilege question presented by 24 Del. C. § 1768 is a question which has been considered before. The authorities are set forth in the February 23, 2000 Letter Opinion at pages 8-10, including footnotes; the cases are consistent in upholding the privilege. I think it is fair to say that the February Letter Opinion in this case raises more questions than the other authorities cited by the Court. In short, the law on the question seems pretty clear and the thrust of the February Letter Opinion in this case was to test the existing law by a series of considerations deemed somewhat challenging. While it is true that no Delaware Supreme Court case was cited, the law does not appear to be unsettled or uncertain due to conflicting decisions. Moreover, there is present no question of controverted jurisdiction, a prior judgment being opened, or even a case dispositive issue.
Under the circumstances, I do not believe an interlocutory appeal will serve the interest of justice. It will not terminate or substantially reduce litigation. Even though the patient is deceased, there is merit in having the trial record of her medical treatment made as soon as practical.
Moreover, the most important issue, medical negligence, (did medical treatment cause the decedent harm?), can be fully litigated without the credentialing issue and one can make an argument that it should be. In fact, the issue of severance of the credentialing issue has long been on the table in this case and this Court would probably have been wiser had it severed the issue ages ago in the life of this case.
Even in cases of negligent entrustment, the issue is usually whether the entrustor took the necessary steps to guard against the entrustee's negligence which was the direct cause of the harm. So the entrustee's negligence is commonly a necessary part of the cause of action against the entrustor, and, if it does not exist, the entrustment claim itself usually fails. The thrust of the claim is to capture another defendant, not to relieve proof of the underlying case.
Finally, even assuming the Supreme Court would take a different tack from the clear and, I think, unanimous trend of the Delaware case law to date, any contrary solution is not likely to be black or white, but grey, not global, but case by case. In this muddy hypothesis, it can only be helpful to have as many issues in the case resolved or at least fully exposed as possible. It will be easier for the Supreme Court to deal with the issue of the statutory privilege in the context of a fuller trial record in a given case, including this one.
The decision of whether to accept an interlocutory appeal is, of course, for the Justices of the Supreme Court. If I were they, I would not accept such an appeal on this application. I do not find an interlocutory appeal would serve considerations of justice. Consequently, the Trial Court will not certify the interlocutory appeal.
IT IS SO ORDERED that this certification request pertaining to the Court's Letter Opinions and Orders of February 23, 2000 and March 31, 2000 is hereby REFUSED in accordance with Supreme Court Rule 42.
Sincerely, _______________________ William T. Quillen
WTQ/caj oc: Prothonotary