Clendaniel v. Bayhealth Medical Center, Inc. ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
LEONA P. CLENDANIEL, Successor :
Administratrix WWA of the Estate of Robert : C.A. No. K20C-01-003 WLW
D. Clendaniel, LEONA P. CLENDANIEL,
Individually, and ALICE M. METZNER,
Individually,
Plaintiffs,
Vv.
BAYHEALTH MEDICAL CENTER, INC.,
a Delaware corporation, and MILFORD
CENTER, LLC, a Delaware limited liability
company,
Defendants.
Submitted: October 23, 2020
Decided: December 29, 2020
ORDER
Defendant Bayhealth Medical Center, Inc.’s
Motion for Partial Dismissal.
Denied.
William D. Fletcher, Jr., Esquire of Schmittinger & Rodriguez, P.A., Dover,
Delaware; attorney for Plaintiffs.
James E. Drnec, Esquire and Katherine J. Sullivan, Esquire of Wharton Levin
Ehrmantraut & Klein, P.A., Wilmington, Delaware; attorneys for Defendant
Bayhealth Medical Center, Inc.
Bradley J. Goewert, Esquire and Catherine M. Cramer, Esquire of Marshall Dennehey
Warner Coleman * Goggin, Wilmington, Delaware; attorneys for Defendant Milford
Center, LLC.
WITHAM, R.J.
Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
Civil Action No. K20C-01-003 WLW
December 29, 2020
Bayhealth Medical Center, Inc. (hereafter “Bayhealth”) has filed a Motion for
Partial Dismissal against the medical negligence claim brought by Leona Clendaniel,
individually and as the administratrix of Robert D. Clendaniel's estate, and Alice M.
Metzner, individually, (hereafter “Plaintiffs”) arguing that the Affidavit of Merit
provided by Plaintiffs was not adequate. Bayhealth asserts that the expert provided
by Plaintiffs is not properly qualified to render a medical opinion about the veracity
of the claim because he is not a neurosurgeon. Bayhealth bases this assertion on the
credentials noted in the curriculum vitae of Plaintiffs' expert, which was inadvertently
served to Bayhealth via LexisNexis. This Court heard oral arguments of the parties
on October 23, 2020. After considering the arguments of the parties, this Court
denies Bayhealth's Motion for Partial Dismissal.
Facts and Procedural History
Plaintiffs brought this medical negligence case because of the alleged wrongful
death of Robert D. Clendaniel, which occurred on October 31, 2018. The claim of
medical negligence was due to Plaintiffs' assertion that Bayhealth failed to provide
Robert D. Clendaniel with adequate care while he was under the care of Bayhealth's
Sussex and then later Kent campuses.
On June 18, 2018, an ambulance brought Robert D. Clendaniel to Bayhealth's
Sussex Campus (hereafter “Sussex”) for complaints of neck and shoulder pain.
Robert D. Clendaniel was in the care of Sussex for approximately 48 hours and,
during that time, Plaintiffs assert that Sussex should have administered a Magnetic
Resonance Imaging (hereafter “MRI”’) study and performed a Posterior T1/2
Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
Civil Action No. K20C-01-003 WLW
December 29, 2020
laminectomy for evacuation of spinal hematoma.' Plaintiffs’ complaint asserts that
the inaction of Sussex led to a deterioration of spinal neurological function that
resulted in paralysis.
On June 20, 2018, Robert D. Clendaniel was transferred to Bayhealth's Kent
Campus (hereafter “Kent”) where, Plaintiffs allege, negligent medical care led to the
formation of a Coccyx Pressure Ulcer that ultimately brought about the onset of
sepsis and finally Robert D. Clendaniel's death.
Plaintiffs filed the complaint for medical negligence along with an Affidavit
of Merit on January 3, 2020. Bayhealth answered and filed a Motion to Test the
Affidavit on January 27, 2020. On May 8, 2020, this Court found that the Affidavit
of Merit did not comply on the grounds that it did not include a curriculum vitae and
allowed Plaintiffs the opportunity to revise their Affidavit of Merit. On May 14,
2020, Plaintiffs filed a Revised Affidavit of Merit to include the curriculum vitae of
her expert, and this Court found the revised affidavit acceptable on May 21, 2020.
On May 27, 2020, Bayhealth filed a Motion for Partial Dismissal based on its
assertion that Plaintiffs’ expert does not meet the criteria set forth in 18 Del. C. §
6853©. This Court heard oral arguments on the motion on October 23, 2020.
In Plaintiffs' response, they stated that on May 14, 2020, the “plaintiffs'
counsel's staff mistakenly and inadvertently electronically 'served' Defendants with
the confidential revised Affidavit of Merit and curriculum vitae.’? This disclosure
' According to the Mayo Clinic website, a laminectomy is a procedure that creates space within the
spinal canal to relieve pressure on the spinal cord and nerves.
* Pl.'s Response to Def.'s Mot. at J 6.
Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
Civil Action No. K20C-01-003 WLW
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was discussed during oral arguments on the motion, and Plaintiffs explained that the
inadvertent disclosure was due to not ensuring that, when the Affidavit of Merit was
sent to this Court, the Court was the only recipient. Plaintiffs stated in their response
that this inadvertent disclosure did not come to their attention until Bayhealth filed
its Motion for Partial Dismissal and that at no time did Bayhealth make any effort to
notify Plaintiffs about the disclosure.* During oral argument, Bayhealth's counsel
confirmed the characterization of events as presented in Plaintiffs’ response and
during oral argument and admitted that no effort was made by Bayhealth to confirm
with Plaintiffs’ counsel whether this disclosure was intentional.
Standard of Review
Delaware statute requires there be an Affidavit of Merit detailing the
qualifications of a plaintiff's expert when bringing a medical negligence complaint.
Specifically, 18 Del. C. § 6853© states that the affidavit shall provide the expert's
reasonable belief to the Court that there was a breach of the standard of care and that
breach was the proximate cause of the plaintiff's injuries; that the expert be licensed
to practice medicine at least three years prior to signing the affidavit; and that the
expert “has been engaged in the treatment of patients and/or in the teaching/academic
side of medicine in the same or similar field of medicine as the defendant(s).’”
Additionally, the plaintiffs expert must be Board Certified in the same fields of
° Id. at J] 6 and 7.
* 18 Del. C. § 86530.
Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
Civil Action No. K20C-01-003 WLW
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medicine if the defendant is also Board Certified.” The prima facie case for expert
certification of a medical negligence complaint can be satisfied if “an Affidavit of
Merit...contain[s] an expert's sworn statement that medical negligence occurred, along
with confirmation that he or she is qualified to proffer a medical opinion.”® “The
Delaware statute...was designed to reduce the filing of meritless negligence claims,
and the penalty for failing to comply is dismissal.”’
The plaintiff's expert can only give opinions as to the applicable standards of
care in those areas with which the expert is “familiar with the degree of skill
8 «se
ordinarily employed” in said areas.” “Qualifying as an expert for the purposes of [18
Del. C § 6854] does not require meticulous validation of the proffered expert's
proficiency in a specific medical field.”? The statutory requirement is such that it
recognizes the need for some experts from one field of medicine to share a similar or
common standard of care of doctors in other areas of medicine.'°
The Affidavit of Merit is a confidential filing by the plaintiff to the Court and
statutorily “shall be and shall remain sealed and confidential.”'' The acceptance of
the Affidavit of Merit is at the Court's discretion, but a defendant can request that the
° Id.
° Dishmon vy. Fucci, 32 A. 3d 338 at 342 (Del. 2011).
" Hopkins v. Frontino, 2012 WL 404961 at *1 (D. Del. Feb. 7, 2012).
° 18 Del. C. § 8654.
° Dishmon, 32 A. 3d at 343.
"© Vareha v. Bayhealth Medical Center, Inc., 2011 WL 2361270 at *6 (Del. Super. May 26, 2011).
“ 18 Del. C. § 6853(a)(1).
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Court make an in camera review for the affidavit's statutory compliance.’
Confidential documents that have been inadvertently disclosed by one party to the
other will lose their confidential status unless the Court determines that 1) there were
reasonable precautions in place to prevent such disclosures; 2) there was a prompt
attempt to rectify the disclosure; 3) the disclosure occurred as part of an extensive
discovery; and 4) maintaining the document's confidentiality would be fair.'? The
Court's determination is fact specific when considering the above factors. For
instance, proper procedures in safe-guarding confidential documents can include
making the documents as such so that, if an inadvertent disclosure occurs, the
receiving party would be on notice that the documents are confidential.'* Likewise,
“where document production is extensive...a finding that an inadvertent disclosure of
privileged documents waives the attorney-client privilege or work-product protection
does not advance the aim of full and free discovery.”
Discussion
Bayhealth bases its Motion for Partial Dismissal on the notion that, because Dr.
Terrance L. Baker (hereafter “Baker”) is not specifically trained in neurosurgery or
neurology, his Affidavit of Merit does not meet the criteria of Section 68530.
2 18 Del. C. § 6853(d).
'° In Re Kent County Adequate Public Facilities Ordinances Litigation, 2008 WL 1851790 at *5
(Del. Ch. April 7, 2008). See also Monsanto Co. y. Aetna Casualty and Surety Co., 1994 WL
315238 at *6 (Del. Super. May 31, 1994).
* Monsanto, 1994 WL 315238 at *6.
© Jd. (citations omitted.)
Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
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Plaintiffs object to Bayhealth's motion substantively and procedurally .
Affidavit of Merit
This Court accepted the revised Affidavit of Merit including the curriculum
vitae of Baker on May 21, 2020. In the affidavit, Baker swore that he has “been
engaged in the treatment of patients in the same or similar field of medicine as the
”16 Baker's curriculum vitae shows an extensive career in
named Defendants.
medicine with specific expertise in emergency medicine and general practice or
family medicine.'’ However, Bayhealth asserts in its motion that “the affiant has no
apparent specialized training or education in, is not board-certified in, and has never
practiced in, the field of neurosurgery.”
The Plaintiffs allege medical negligence on the part of Bayhealth at its Sussex
campus for 1) failure to timely examine; 2) failure to timely note and act during a 45-
hour period; 3) failure to provide adequate medical care, diagnosis, and treatment,
particularly in not performing an MRI after 45 hours; and 4) failure to perform a
neurosurgical procedure.'” The medical negligence alleged at the Kent campus is 1)
failure to timely examine; 2) failure to adequately monitor and examine; 3) failure to
timely diagnose; 4) failure to develop proper monitoring procedures; 5) erroneously
diagnosing the coccyx wound; 6) failure to promptly and correctly comply with
Robert D. Clendaniel's physicians' instructions related to the coccyx wound; and 7)
© Def.'s Mot. to Dismiss, Ex. C.
" Td.
© Def.'s Mot. to Dismiss at § 8.
* Pl.'s Compl. at ¢ 12.
=
Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
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failure to properly and reasonably care for the coccyx wound.”
In his affidavit, Baker offered his opinion that “breaches of the standards of
care include, but are not limited to, failure to timely diagnose and treat Plaintiff's
spinal cord bleed, and failure to prevent, properly diagnose and treat Plaintiff's
coccyx wound leading to [Robert D.] Clendaniel's death on 10/31/2018.”*’ Further,
Baker swears that he is engaged in “the same or similar field of medicine” as
Bayhealth and is experienced in “emergency medicine” and treating nursing home
patients and “end-of life patients.”” Baker's opinion is relegated to diagnosing and
treating the patient, not the actual procedure specified in the complaint. In other
words, Plaintiffs' assertion is that Baker is well suited to make determinations of
breach of standard of care when medical personnel are presented with a progressing
medical condition that is left undiagnosed and untreated and the timeliness of
ordering an MRI.
Bayhealth's argument that Baker is not a neurosurgeon and therefore cannot
opine as to the standard of care a neurosurgeon would be measured during the act of
performing the posterior T1/2 laminectomy misses the mark. Baker was not opining
in that regard, but, rather, his opinion was with regard to whether such a diagnosis
and treatment could have been discovered with a timely MRI. In fact, during oral
argument the Plaintiffs made that exact argument, that the allegation of medical
7° Id. at ¥ 14.
21 Def.'s Mot. to Dismiss, Ex. C.
22 Id.
Leona P. Clendaniel vy. Bayhealth Med. Ctr. Inc., et al.
Civil Action No. K20C-01-003 WLW
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malpractice was predicated more on conducting a timely MRI and not on performing
posterior T1/2 laminectomy. This is a case about the actions taken by medical
personnel during a present emergency in the first two days of that emergency more
so than it is a case about a specific procedure. In this case, the totality of
circumstances suggest that a doctor with the qualifications of Baker are capable of
knowing and understanding the standards of care required for the “diagnosis and
treatment of some medical problems [that] may be of concern to doctors’ different
specialties...among those doctors of different specialties.””
An additional point to address was brought up by Plaintiffs during oral
argument on the motion. The two cases brought forth by Plaintiffs are Ashley-Fry v.
Bayhealth Medical Center, Inc.”* and Delmarva Power & Light v. Stout.> In Ashley-
Fry, the appellant in that case was Bayhealth Medical Center, Inc. who was making
a substantial evidence challenge to an Industrial Accident Board (hereafter “IAB”)
ruling in favor of the appellee. Bayhealth's argument in that case was that the IAB
should not have accepted appellee's medical expert over their own because he “was
not certified in the area of pain management.””° The Board's acceptance of appellee's
expert over that of Bayhealth's was to “provid[e] substantive evidence for the Board's
findings.””’ In other words, the expert in Ashley-Fry was offering expert testimony,
23 Vareha, 2011 WL 236270 at *6.
* Ashley-Fry v. Bayhealth Medical Center, Inc., 2005 WL 730325 (Del. Super. Mar. 28, 2005).
*° Delmarva Power & Light v. Stout, 380 A. 2d 1365 (Del. 1977).
6 Ashley-Fry, 2005 WL 730325 at *3.
7 Id.Leona P. Clendaniel v. Bayhealth Med. Ctr. Inc., et al.
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which is treated differently than certifying through affidavit that a medical
malpractice claim has merit.
This is further supported by the second case brought by Plaintiffs, Delmarva
Power & Light v. Stout. In that case the Court stated plainly that “[i]t is settled in
Delaware...that an experienced physician is an expert, and it is not required that he
be a specialist in a particular malady at issue in order to make his testimony as an
expert admissible.””* Again the issue in that case was the expert's qualifications to
give testimony, not to certify the merits of the claim.
Bayhealth points out that in Ashley-Fry the issue was not whether an expert
from one specialty can opine as to the standard of care of another specialty, but
whether the “plaintiff's medical prescription requirements were reasonable and
necessary” for the purposes of continued workers' compensation benefits.”
Bayhealth further distinguishes Delmarva Power & Light by acknowledging that the
Court in that case allowed the expert's testimony because the expert had “considerable
experience and expertise” in the field in question and treated the plaintiff.*°
Bayhealth bolsters their argument with regard to the Delmarva Power & Light case
by citing Good y. Bautista’' and Werner v. Nanticoke Memorial Hospital, Inc., et.
° Delmarva Power & Light, 380 A. 2d at 1369.
28 Defendant's Letter to Chambers, October 23, 2020.
° Id.** Good v. Bautista, 1987 WL 12439 (Del. Super. June 8, 1987).
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al.” In both of those cases the Court held that competency to testify requires the
expert to be one who “administers the same kind” of medical treatment when
testifying as to standard of care.*°
There is little doubt that, with regard to competency to testify as an expert,
Bayhealth has successfully distinguished the cases brought forth by Plaintiffs during
their oral argument. However, the circumstances of those cases cited cannot be
ignored when attempting to apply the rationale of those cases to one where an
Affidavit of Merit is involved. Delaware law is also settled on the question of
whether the affiant must be from the exact same specialty as the defendant when
rendering a sworn statement as to the merits of plaintiff's medical malpractice
complaint. As has been referenced above through Vareha v. Bayhealth Medical
Center, Inc., medical specialists across disciplines can and often do share the same
standard of care and it is not out of the ordinary for such specialists to be very
familiar with the standard of care of other specialists. Bayhealth would argue that
“nothing...would justify holding an emergency room physician to the standard of care
ofaneurologist simply because an emergency patient presents a possible neurological
problem.”** This is true with regard to admission of expert testimony, but as Vareha
holds, this is not necessarily true when called upon to certify the merits of a
complaint, and that is the sole purpose of 18 Del. C. § 6853. This Court believes that
°° Werner v. Nanticoke Memorial Hospital, Inc., et. al., 2005 WL 730325 (Del. Super. Mar. 28,
2005).
°° Good, 1987 WL 12439 at *2.
34 Werner, 2005 WL 730325 at *2.
1]
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Baker has met the standards of the statute just as this Court did on May 21, 2020.
Inadvertent Disclosure
Plaintiffs note that Bayhealth is not entitled to challenge the contents of the
affidavit. Section 6853(d) affords the defense the ability to request that the Affidavit
of Merit be examined by the court in camera to ensure compliance with the
requirements of the statute, but it does not entitle the defense the ability to examine
the affidavit.” This section of the statute suggests that this is an in camera inspection,
which Black's Law defines as “a trial judge's private consideration of evidence.”*°
(Emphasis added.) As Plaintiffs note, Bayhealth was able to review the affidavit only
because of an inadvertent disclosure of the curriculum vitae on the part of Plaintiffs'
counsel.,°’
In this case, Bayhealth admits to receiving the Affidavit of Merit when the
Plaintiffs' counsel filed the revised affidavit with this Court and did not ensure that
the Court was the only recipient of the electronic filing. Bayhealth further admits to
this being a strange occurrence and that normally a courtesy call to ensure that such
a disclosure was meant by the other side would be made. However, in this instance,
they failed to make such a call. Plaintiffs state that they only knew of the disclosure
through the present motion. Bayhealth knows or should know that Sec. 6853(d)
%° 18 Del. C. § 6853(d).
*° Black's Law Dictionary (3rd ed. 2006).
* Tt should be noted that in other jurisdictions, where there is “no evidence of mistake or
inadvertence,” such disclosures could be seen as waiving any right to keep them out of sight of the
opposing party. See Fuller v. Preston State Bank, 667 S.W. 2D 214 at 220 (Tex. App. Dec. 28,
1983).
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Civil Action No. K20C-01-003 WLW
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makes affidavits of merit confidential and undiscoverable and should have acted
immediately to notify Plaintiffs about the disclosure. But instead of acting, Bayhealth
moved for partial dismissal of the complaint. It is clear that, but for this inadvertent
disclosure, this motion would not be before this Court.
Conclusion
A plaintiffs Affidavit of Merit, complete with an expert's curriculum vitae, is
necessary for filing a medical malpractice complaint. Pleas to review the affidavit
can be made by the defense, but the acceptance of the affidavit is solely the
prerogative of the Court. This Court exercised that prerogative on May 21, 2020, and
found it to be acceptable.
Finally, Affidavits of Merit are confidential and not discoverable to the
defense. When confidential documents are mistakenly disclosed, Delaware
recognizes certain criteria for declaring such confidentiality waived. However,
Delaware also recognizes a certain amount of courtesy between adversarial parties
should be exercised in such circumstances. This courtesy is lacking in this case, and
this Court finds that Plaintiffs' disclosure was inadvertent and not a waiver of
confidentiality.
WHEREFORE, given the circumstances of this case, this Court DENIES
Defendant's Motion for Partial Dismissal on the basis of inadequate Affidavit of
Merit. IT IS SO ORDERED.
Ls/ William L. Witham, Jr.
Resident Judge
WLW/dmh
13