Opinion
C.A. No. 02C-07-64 HLA.
Submitted: April 24, 2003.
Decided: July 1, 2003.
NON-ARBITRATION CASE. JURY TRIAL BY TWELVE PERSONS.
UPON DEFENDANTS', CHRISTIANA CARE HEALTH SERVICES, CHRISTIANA CARE CORPORATION, ERIC KALISH, M.D., CHARLES L. HOBBS, M.D., BRIAN F. SMALE, M.D. AND DELAWARE SURGICAL GROUP, P.A., MOTION TO AMEND ANSWER DENIEDORDER
On this 1st day of July 2003, upon consideration of the Motion to Amend Answer filed by Christiana Care Health Services, Christiana Care Corporation, Eric Kalish, M.D., Charles L. Hobbs, M.D., Brian F. Smale, M.D., and Delaware Surgical Group, P.A., ("Defendants"), Wayne E. Schwartzkopf's ("Plaintiff") Opposition to the Motion, oral argument held April 24, 2003, and the record it appears to the Court that:
(1) On July 9, 2002, Plaintiff filed this medical malpractice suit against Defendants as a result of Defendants' alleged negligent medical treatment of Plaintiff's deceased wife. Pursuant to Rule 15(a), Defendants now move the Court in order to file an Amended Answer adding the additional affirmative defense of the statute of limitations.
(2) Plaintiff points out that Delaware Superior Court Rule 8(c) requires that a defendant plead all affirmative defenses, such as the statute of limitations defense, in its first responsive pleading. Plaintiff further states that it is well recognized that an affirmative defense is waived if it is not plead in a defendant's first responsive pleading. The Court in Glazer indicates that there are two exceptions to this rule: (1)where it is impossible to determine issues of the defendant's negligence and proximate cause without considering the actions of the plaintiff and (2) if evidence of an unpled affirmative defense is admitted without objection.
See James v. Glazer, 570 A.2d 1150, 1153 (Del. 1990); Cannelongo v. Fidelity America, 540 A.2d 434, 440 (Del. 1988); and City of Wilmington v. Spencer, 391 A.2d 199 (Del.Super. 1978).
James v. Glazer, 570 A.2d 1150, 1153-54 (Del. 1990).
(3) Plaintiff states that although the policy under Rule 15 is for the Court to permit amendments freely, pursuant to Foman v. Davis, the Court must consider the following factors: (1) the timeliness of the amendment; (2) the reason for the delay; (3) the prejudice caused to the party opposing such an amendment; and (4) whether the amendment would be futile in any event. Plaintiff argues that Defendants' Motion for leave to amend their answer should be denied because: (1) the motion is untimely; (2) there has been undue delay; (3) the Defendants have offered no reason for their failure to plead the statute of limitations either in their original answer or their Amended Answer; and (4) the amendment would be futile in any event. Plaintiff further argues that Defendants' nine month delay in pleading this affirmative defense would prejudice the Plaintiff because theories of the case have already been formulated.
371 U.S. 178, 182 (1962).
(4) Defendants contend that none of the factors weigh against granting the motion. Defendants state that there can be no prejudice to Plaintiff as no depositions have been taken, no expert reports have been produced and no theory of the case articulated. Defendants further state that it was not until the medical records could be gathered and reviewed in detail that counsel could be sure that this defense was appropriate to add. However, as Plaintiff points out this motion has been presented nine months after the original complaint was filed and the medical records have been within the exclusive control of the defense from the time that this lawsuit was initiated.
(5) Defendants argue that the Complaint is not specific as to the allegation, therefore it was not clear whether or not the statute of limitations applied. Plaintiff, on the other hand, states that the Complaint is specific and delineates the allegations of medical negligence which encompass a time period involving a continuum of care, both before and after surgery which was performed on July 10, 2000. Plaintiff contends that the allegations of medical negligence encompass the entire time period beginning when Mrs. Schwartzkof first came to her physicians, on February 10, 2000, through the surgery date of July 10, 2000, as well as the numerous surgeries thereafter, until her death in March 2001.
(6) The Court finds that: 1) Defendant's Motion to Amend Answer is untimely as it was filed after the first responsive pleading and does not fit into either of the exceptions carved out by James v. Glazer; 2) Plaintiff will suffer prejudice in the form of an absolute bar if the statute of limitations argument were to be successful; 3) Defendants' reasons for the delay are insufficient i.e., (i) the medical records have been in their possession since the beginning of this lawsuit and (ii) the Complaint specifically describes the alleged medical negligence and the time frame involved; and 4) due to the continuous nature of the medical treatment in this case, the statute of limitations argument is futile. If Plaintiff's allegations are supported by the facts in the record, the statute of limitations runs from the date of the last act in the negligent continuum. In this case the Complaint sets forth the facts that Plaintiff sought treatment for severe abdominal pain beginning February 10, 2000, and continuing until the date of her death, March 3, 2001. Plaintiff's first surgery, which revealed a wood toothpick protruding from her small bowel causing inflammation, pelvic abscess and dense adhesions, was performed on July 10, 2000. The Complaint, which was filed on July 9, 2002 was within the two year limitations period.
570 A.2d 1150, 1153-54 (Del. 1990).
See Zakrzewski v. Singh, 2001 WL 1628312 at *2, (Del.Super.Ct.).
Id. (citing Ewing v. Beck, 520 A.2d 653, 662 (Del.Supr. 1987).
For the foregoing reasons Defendants' Motion to Amend Answer is hereby DENIED.