Peck v. Orthopaedic Associates of Southern Delaware, P.A. ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ROBERT PECK, )
)
Plaintiff, )
) C.A. No. K20C-12-031 NEP
v. )
)
ORTHOPAEDIC ASSOCIATES )
OF SOUTHERNE DELAWARE, P.A., )
and SCOTT SCHULZE, M.D., )
)
Defendants. )
OPINION AND ORDER
Submitted: June 7, 2021
Decided: July 28, 2021
Upon Defendants’ Renewed Motion to Dismiss
DENIED in part and DEFERRED in part
Upon Review of the Amended Affidavit of Merit
ACCEPTED in part and DEFERRED in part
Ronald G. Poliquin, Esquire, The Poliquin Firm, LLC, Dover, Delaware, Attorney
for Plaintiff.
Colleen D. Shields, Esquire, and Alexandra D. Rogin, Esquire, Eckert Seamans
Cherin & Mellott, LLC, Wilmington, Delaware, Attorneys for Defendants.
Primos, J
This matter involves a healthcare negligence suit filed by Plaintiff Robert
Peck (“Plaintiff”) against Defendants Scott Schulze, M.D. (“Dr. Schulze”), and
Orthopaedic Associates of Southern Delaware, P.A. (“Orthopaedic Associates,” and
together with Dr. Schulze, “Defendants”). Before the Court is Defendants’ Renewed
Motion to Dismiss along with Defendants’ motion to determine whether the affidavit
of merit filed by Plaintiff complies with 18 Del. C. § 6853(a)(1) and (c). For the
reasons that follow, the Renewed Motion to Dismiss is DENIED in part and
DEFERRED in part, and the Amended Affidavit of Merit is ACCEPTED in part
and DEFERRED in part.
I. FACTUAL BACKGROUND1
In July 2018, Plaintiff suffered a work-related injury that caused mild but
consistent pain to his left wrist. The next month, he sought treatment from Dr.
Schulze of Orthopaedic Associates, who performed a carpal tunnel release on
Plaintiff on October 3, 2018. During the procedure, Plaintiff heard a “pop.” At a
follow-up visit with Dr. Schulze on October 19, 2018, Plaintiff complained of
constant numbness in the tips of certain fingers and jolts of pain up his arm. Dr.
Schulze ignored the complained-of symptoms and blamed Plaintiff for overuse of
his hand. Plaintiff returned for another follow-up visit on December 28, 2018, when
Dr. Schulze again ignored Plaintiff’s complaints. Plaintiff then sought treatment
from another physician, Dr. Pan, who described his symptoms as suspicious of
cubital tunnel syndrome at the elbow.
Plaintiff alleges that Dr. Schulze negligently misdiagnosed his symptoms,
created a mistaken large incision in his wrist during the carpel tunnel release surgery,
and provided negligent follow-up care. Plaintiff further contends that the negligence
1
The facts contained herein are as alleged in Plaintiff’s First Amended Complaint, filed on June 7, 2021.
2
of Dr. Schulze resulted in the development of a deformed hand that is constantly in
pain and will require future surgery and medical treatment.
II. PROCEDURAL HISTORY
On December 23, 2020, Plaintiff filed a complaint, along with a Motion to
Extend Time to File Affidavit of Merit pursuant to 18 Del. C. § 6853(a)(2). That
provision allows a plaintiff, upon motion and for good cause, an additional 60 days
to file the required affidavit of merit.2 The Court granted the extension, and Plaintiff
submitted an affidavit of merit within the extension period.
On February 11, 2021, Defendants filed a Motion to Dismiss pursuant to Rule
12(b)(6) of the Superior Court Rules of Civil Procedure and 18 Del. C. § 6856,
contending that Plaintiff had failed to state a claim upon which relief could be
granted because the statute of limitations had run on Plaintiff’s claims. On February
22, 2021, Defendants submitted a motion, pursuant to 18 Del. C. § 6853(d), asking
the Court to review the affidavit of merit.3 Plaintiff filed a response to Defendants’
Motion to Dismiss on March 22, 2021.
On March 30, 2021, the Court held oral argument on the Motion to Dismiss.
At the argument, Plaintiff’s counsel asked the Court for an opportunity to amend his
complaint. The Court indicated that Plaintiff would be allowed to file a motion to
amend, and further indicated that Defendants would be permitted to either oppose
the motion to amend, file a renewed motion to dismiss in response to the amended
complaint, or answer the amended complaint. Finally, the Court informed the parties
that it would defer decision on Defendants’ Motion for Review of Affidavit of Merit.
On April 13, 2021, Plaintiff filed his Motion to Amend. Defendants filed no
opposition to that motion, but did file a Renewed Motion to Dismiss on April 27,
2
Pursuant to 18 Del. C. § 6853(a), a complaint asserting medical negligence generally must be accompanied by an
affidavit of merit.
3
18 Del. C. § 6853(d) allows a defendant, by motion, to ask the Court to perform an in camera review of the affidavit
of merit to ensure that it complies with 18 Del. C. § 6853(a)(1) and (c).
3
2021. Also, on April 27, Plaintiff filed an Amended Affidavit of Merit.4 On May
11, 2021, Plaintiff filed a response to Defendants’ Renewed Motion to Dismiss.
On May 27, 2021, the Court heard oral argument on Plaintiff’s Motion to
Amend Complaint and on Defendants’ Renewed Motion to Dismiss and Motion for
Review of Affidavit of Merit. At the argument, the Court granted the motion to
amend as unopposed5 and ultimately reserved decision on Defendants’ Renewed
Motion to Dismiss and Motion for Review of Affidavit of Merit. The Court’s
decision on the latter two motions is set forth below.
III. MOTION TO DISMISS
A. Standard of Review
On a motion to dismiss, the moving party bears the burden of demonstrating
that “under no set of facts which could be proven in support of [the complaint] would
the [plaintiff] be entitled to relief.”6 Upon this Court's review of a motion to dismiss,
“(i) all well-pleaded factual allegations are accepted as true; (ii) even vague
allegations are well-pleaded if they give the opposing party notice of the claim; (iii)
the Court must draw all reasonable inferences in favor of the non-moving party; and
[(iv)] dismissal is inappropriate unless the plaintiff would not be entitled to recover
under any reasonably conceivable set of circumstances susceptible of proof.”7
B. Discussion
Defendants move to dismiss Plaintiff’s Amended Complaint, arguing that the
statute of limitations has run on his medical negligence claims because the
4
Although Plaintiff did not seek leave of the Court to file an amended affidavit of merit, in the interests of judicial
economy the Court will consider whether Plaintiff’s filing of an amended affidavit of merit is permitted in this case.
(The Court notes that Defendants did not file a motion to strike the amended affidavit.) If the Court finds that the
filing of an amended affidavit of merit is permitted, it will determine whether the amended affidavit complies with 18
Del. C. § 6853.
5
Plaintiff subsequently filed his First Amended Complaint (the “Amended Complaint”) on June 7, 2021.
6
Daisy Constr. Co. v. W.B. Venables & Sons, Inc., 2000 WL 145818, at *1 (Del. Super. Jan. 14, 2000).
7
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (internal citations and quotations omitted).
4
continuous negligent medical treatment doctrine does not apply. Alternatively,
Defendants assert that even if the continuous negligent medical treatment doctrine
does apply, the claims are time-barred: they argue that the limitations period started
running when Plaintiff had knowledge of the negligent course of treatment, which
Defendants claim occurred when Plaintiff heard a “pop” during his surgery or, at the
latest, at his first post-operative office visit on October 19, 2018, when he reported
numbness in his fingers and pain in his arm to Dr. Schulze.
Plaintiff argues that his Amended Complaint properly alleges a continuum of
negligent medical treatment that extended through his December 28, 2018, office
visit with Dr. Schulze. Plaintiff also disputes the assertion by Defendants that he
had knowledge of negligence prior to the date subsequent to December 28, 2018,
when he consulted with Dr. Pan, whose diagnosis was that Plaintiff had cubital
tunnel syndrome at the elbow, a different diagnosis than that given by Dr. Schulze.
1. Plaintiff’s claim is not time-barred because the Amended
Complaint sets forth facts alleging continuous negligent
medical treatment.
The applicable statute of limitations is set forth in 18 Del. C. § 6856, which
provides that “[n]o action for the recovery of damages upon a claim against a health-
care provider for personal injury . . . arising out of medical negligence shall be
brought after the expiration of 2 years from the date upon which such injury
occurred.”8 The Delaware Supreme Court has held that, for statute of limitations
purposes, “when the cause of action is for continuous negligent medical treatment,
the ‘date upon which such injury occurred’ is the last act in the negligent medical
continuum.”9
8
18 Del. C. § 6856. The statute further provides for a three-year statute of limitations, not applicable here, where the
injury “was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured
person” during the entire two-year period following the occurrence of the injury. Id. § 6856(1).
9
Ewing v. Beck, 520 A.2d 653, 663 (Del. 1987).
5
The plaintiff bears the burden of “alleging with particularity a course of
continuing negligent medical treatment during a finite period.”10 The facts pled in
support of such a claim “must be examined to see if the negligent treatment, as
alleged, can be segmented or is, in fact, so inexorably intertwined that there is but
one continuing wrong.”11 Furthermore, “[i]f any act of medical negligence within
[the] continuum falls within the period during which suit may be brought, the
plaintiff is not obligated to split the cause of action but may bring suit for the
consequences of the entire course of conduct.”12 When a patient consults
independently with another provider about the same condition that is subsequently
the subject matter of a claim for continuous negligent medical treatment, there is a
presumption that the patient had knowledge of the medical negligence as of the date
of that consultation.13
Defendants cite to Williamson v. Gopez14 for the proposition that the
continuous negligent medical treatment doctrine does not apply here. In that case,
this Court explained that
if the alleged wrong involved the manner in which the surgery was
performed, such as . . . the negligent cutting of a nerve or tendon, and
does not interrelate with recuperative treatment, the date of the surgery
would be the date the wrongful act or omission occurred. However,
where the surgery and post-operative treatment are interrelated as the
causation of the injury, I find no proper basis for segmenting the
chronology in applying the statute of limitations.15
Here, the alleged negligence during Plaintiff’s initial surgery is inextricably
interrelated or, in the words of the Ewing Court, “inexorably intertwined,”16 with his
10
Id. at 662 (emphasis in original).
11
Id.12
Id.13
Id. at 664.
14
1986 WL 1270 (Del. Super. Jan. 10, 1986).
15
Id. at *1 (emphasis supplied).
16
520 A.2d at 662.
6
post-operative treatment, i.e., the October 19, 2018, and December 28, 2018, follow-
up visits with Dr. Schulze.
Specifically, the Amended Complaint alleges that “[a]s a result of Schulze’s
misdiagnosis, mistaken large incision, and negligent follow up [sic] care, Plaintiff is
in a worse condition than we [sic] he first was treated by Schulze” and that “[a]s a
result of Schulze’s misdiagnosis, mistaken large incision, and negligent follow up
[sic] care, [Plaintiff] is left with a deformed hand constantly in pain which will
require future surgery and medical treatment.”17 Regarding the post-operative
treatment in particular, the Amended Complaint alleges that “[a]fter Plaintiff
continued to have problems after surgery, Schulze refused to order the proper testing
to apply the correct medical treatment causing Plaintiff’s hand to be deformed and
causing permanent injury.”18 Finally, the Amended Complaint alleges that the
October 3, 2018, surgery “was the first act in the negligent continuum” and that “Dr.
Schulze’s negligent conduct throughout [sic] December 28, 2018, constituted
continuous and uninterrupted negligent medical care.”19 Thus, pursuant to the
allegations of the Amended Complaint, the entire course of treatment beginning with
surgery and continuing through post-operative care resulted in Plaintiff’s injuries,
and the impact of each of these aspects of treatment cannot be distinguished because
they were “interrelated as the causation of the injury.”20
What is not as clear, however, is what is meant by the Amended Complaint’s
reference to “misdiagnosis,”21 and more importantly, when that misdiagnosis is
alleged to have occurred, given the Amended Complaint’s statement, noted supra,
17
Am. Compl. ¶ 20, 21.
18
Am. Compl. ¶ 22.
19
Am. Compl. ¶ 26.
20
Williamson, 1986 WL 1270, at *1.
21
The Amended Complaint states that Defendants “[f]ailed to properly diagnose for [Plaintiff’s] condition,” and
separately states that Defendants “[f]ailed to properly diagnose and treat [Plaintiff] after his continuous complaints
after surgery.” Am. Compl. ¶¶ 28.a., 28.e.
7
that the alleged negligent continuum began on October 3, 2018, the date of the
surgery. Thus, any claims regarding pre-surgery diagnosis, as Defendants argue,
would appear to be barred by the statute of limitations, since they arose prior to the
alleged negligent continuum. Given the uncertainty and confusion surrounding this
issue, and given the Delaware Supreme Court’s directive that “public policy favors
permitting a litigant a right to a day in court,”22 the Court will defer dismissal of
Plaintiff’s claims regarding pre-surgery diagnosis and will allow an additional
amendment of the complaint as outlined at the close of this Opinion.
2. This is not the proper stage of litigation for the Court to
decide whether Plaintiff had constructive knowledge of
continuous negligent medical treatment prior to receiving
treatment from a doctor other than Dr. Schulze.
If a plaintiff alleges “continuing negligent treatment during a finite period, . .
. the statute of limitations runs from the date of the last act in the negligent
continuum.”23 In Meekins v. Barnes, the Delaware Supreme Court explained that to
determine the last act in the negligent continuum, the Court conducts a two-part
analysis: “first, what is the date upon which the plaintiff had actual or constructive
knowledge of the negligent course of treatment; and second, what is the date of the
‘last act’ in the negligent continuum immediately prior to the date that the patient
received knowledge, actual or constructive, of the negligent course of treatment.”24
Delaware courts use a reasonably prudent person standard to determine whether a
person had knowledge of the negligent course of treatment.25
Defendants argue from Meekins, which notably was decided at the summary
judgment stage, that even if Plaintiff’s case is one of continuous negligent medical
22
Beckett v. Beebe Med. Ctr., Inc., 897 A.2d 753, 757-58 (Del. 2006) (citing Dolan v. Williams, 707 A.2d 34, 35-36
(Del. 1998)).
23
Ewing, 520 A.2d at 662.
24
Meekins v. Barnes, 745 A.2d 893, 899 (Del. 2000).
25
Id.8
treatment, the Court should dismiss his claim as time-barred because he had
constructive knowledge of the negligent course of treatment as early as October 3,
2018, when he heard a “pop” during surgery, or at the latest on October 19, 2018,
when Dr. Schulze failed to diagnose the cause of his ongoing symptoms. The Court
cannot make such a finding at this stage of the litigation. Before the Court is a
motion to dismiss, and therefore, the court must accept all well-pleaded allegations
in the complaint as true.26 Based on the allegations in the Amended Complaint,
Plaintiff did not receive an accurate diagnosis of his condition until he consulted
with Dr. Pan following his last visit with Dr. Schulze on December 28, 2018. The
Court cannot simply make a finding in the absence of evidence that Plaintiff, as a
reasonable person, should have known that he had been subjected to a course of
continuous negligent medical treatment prior to the consultation with Dr. Pan,
particularly where the Amended Complaint also alleges that Dr. Schulze was
affirmatively telling Plaintiff during the post-operative visits that his symptoms were
caused by “overuse.”27 Therefore, for purposes of Defendants’ motion to dismiss,
the Court must assume that the statute of limitations began to run on December 28,
2018, the last date in the alleged continuum of negligent medical treatment before
Plaintiff presumably received either actual or constructive knowledge of
Defendants’ negligence from Dr. Pan.
IV. MOTION FOR REVIEW OF AFFIDAVIT OF MERIT
Having concluded that the Amended Complaint adequately alleges a
continuous course of negligent medical treatment, the court must now determine
whether the filing of Plaintiff’s Amended Affidavit of Merit is permitted, and if so,
whether the affidavit meets the requirements of 18 Del. C. § 6853(a)(1) and (c).
26
Savor, 812 A.2d at 896.
27
Am. Compl. ¶¶ 13, 16.
9
A. The statutory requirements for affidavits of merit are “purposefully
minimal.”
In Delaware, a healthcare negligence lawsuit must be filed with an affidavit of
merit as to each defendant, signed by an expert, and accompanied by the expert’s
current curriculum vitae.28 The expert must be licensed to practice medicine as of
the affidavit’s date, engaged in such practice in the same or similar field as the
defendant in the three years immediately preceding the alleged negligence, and
Board certified in the same or similar field as the defendant if the defendant is Board
certified.29 The affidavit must also state that reasonable grounds exist to believe that
the applicable standard of care was breached by the defendant and that the breach
was a proximate cause of injury alleged in the complaint.30 Additionally, the
affidavit must be filed under seal and, upon request, may be reviewed in camera to
ensure compliance with statutory requirements.31 The affidavit’s requirements are
“purposefully minimal.”32 Affidavits that merely track the statutory language are
deemed sufficient.33
B. The standard for allowing amendment to an affidavit of merit is a
generous one.
When a plaintiff files an affidavit of merit that “substantially complies” with
18 Del. C. § 6853(a)(1) and (c) but has “deficiencies [that] appear to be drafting
errors,” this Court has allowed plaintiffs to file amended affidavits to correct the
28
18 Del. C. § 6853(a)(1).
29
Id. § 6853(c). Of course, these requirements apply only if the expert is a physician, and the requirements regarding
“same or similar field” apply only if the defendant is a physician. McNulty v. Correct Care Solutions, LLC, 2017 WL
1323711, at *2 (Del. Super. Apr. 7, 2017) (requirement of “same or similar” Board certification does not apply where
defendant is not a physician); accord Zappaterrini v. St. Francis Hosp., Inc., 2009 WL 1101618, at *1 (Del. Super.
Apr. 22, 2019) (“[B]ecause the defendant is not a physician, the statutory requirement of similar Board certification
is not applicable.”). Here, Plaintiff alleges negligence against Orthopaedic Associates based on agency principles.
Thus, the statutory requirements of “same or similar field,” while applicable with respect to Dr. Schulze, are not
applicable with respect to Orthopaedic Associates because it is not a physician.
30
18 Del. C. § 6853(c).
31
Id. § 6853(d).
32
Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmon v. Fucci, 32 A.3d 338, 342 (Del. 2011)).
33
Dishmon, 32 A.3d at 342-43.
10
errors.34 These instances have included those where the affidavit completely failed
to address the alleged negligence of one of the defendants.35 “The Court’s discretion
in such instances is warranted because, ‘[i]n Delaware, public policy favors
permitting a litigant a right to a day in court.’”36
C. Plaintiff should be permitted to submit an amended affidavit of merit.
Here, the original affidavit complied with the requirements of the statute
regarding the qualifications of the attesting expert. With regard to the requirements
regarding the expert’s certification of breach and proximate cause, the original
affidavit stated that the October 3, 2018, surgical procedure was the proximate cause
of Plaintiff’s injuries. However, while it also mentioned the October 19, 2018, and
December 28, 2018, post-operative visits, the original affidavit failed to address
whether and to what extent those events may have contributed causally to Plaintiff’s
injuries, and the original affidavit failed to mention at all any issues relating to pre-
surgery diagnosis.
As this Court recognized in Williamson, in the medical malpractice context
injury “may result from a succession of treatments or medications which
cumulatively produce an injurious result . . . or injury may result from a single event
34
Buck v. Nanticoke Mem'l Hosp., Inc., 2015 WL 2400537, at *1 (Del. Super. May 19, 2015); see also, e.g., Palacio
for Mitchell v. Premier Healthcare, Inc., 2015 WL 13697654, at *1 (Del. Super. Sept. 15, 2015) (accepting an
amended affidavit after the court rejected the original affidavit of merit for its failure to state whether the defendant’s
breach of the standard of care had proximately caused the plaintiff’s injuries); Ellet v. Ramzy, 2004 WL 2240153, at
*1 (Del. Super. Sept. 29, 2004) (allowing the amendment of an affidavit of merit because the affidavit was equivocal
as to whether the breach was a proximate cause of the decedent’s injury); Kalinowski v. Adams, 2012 WL 1413999,
at *1-*2 (Del. Super. Mar. 9, 2012) (allowing the plaintiff to amend the affidavit of merit because the original affidavit
was unclear as to whether the defendants’ actions had proximately caused the plaintiff’s injuries).
35
See Truitt v. Bay Health Med. Ctr., Inc., 2019 WL 5460190, at *2 (Del. Super. Oct. 24, 2019) (Court assumed that
failure to address the negligence of one of the defendants was an “oversight” and allowed amendment of the affidavit);
Buck, 2015 WL 2400537, at *2 (where proffered affidavit did not address negligence of institutional defendant, Court
permitted plaintiff to supplement record with affidavit addressing negligence of that defendant).
36
Buck, 2015 WL 2400537, at *1 (alteration in original) (citing Beckett, 897 A.2d at 757–58 (Del. 2006)); cf. Old
Guard Ins. Co. v. Jimmy's Grille, Inc., 860 A.2d 811 (TABLE), 2004 WL 2154286, at *3 (Del. 2004) (according
“liberal construction” to rule regarding vacation of default judgments “because of the underlying public policy that
favors a trial on the merits”).
11
. . . .”37 To be sure, the original affidavit addresses only the surgical procedure as a
proximate cause of Plaintiff’s injuries, not any other aspects of treatment. However,
the Court recognizes that the affiant is a medical expert, not a legal one, and therefore
may not have been cognizant at the time he signed the original affidavit that there
may be multiple proximate causes of an injury. 38 Accordingly, “[a]s generously as
the Court can,”39 the Court will assume that the failure of the attesting expert to
address alleged misdiagnosis and post-operative consultation as potential additional
proximate causes of Plaintiff’s injuries was an oversight and will therefore allow
Plaintiff to submit an amended affidavit of merit addressing whether other aspects
of Plaintiff’s treatment were also proximate causes of his injuries.
D. The Amended Affidavit of Merit complies with the statute in part.
As noted supra, Plaintiff has filed an Amended Affidavit of Merit signed by
the same expert who signed the original affidavit. Although the Amended Affidavit
was submitted without leave of the Court, the Court will nonetheless consider it in
the interests of judicial economy.
In accordance with the statute, the Court has conducted an in camera review
of the Amended Affidavit. With respect to the statutorily required qualifications
of the expert, the Amended Affidavit does not differ from the original, and the
Court finds as follows with regard to those items:
a. The current curriculum vitae of the expert is attached.
b. The expert was licensed to practice medicine as of the date of the
Amended Affidavit.
37
1986 WL 1270, at *1 (citations omitted).
38
Duphily v. Delaware Electric Cooperative, Inc., 662 A.2d 821, 829 (Del. 1995).
39
Truitt, 2019 WL 5460190, at *2.
12
c. During the 3 years immediately preceding the alleged medical
negligence, the expert was involved in treating patients in the same or
similar field of medicine as Dr. Schulze.
d. The expert is Board certified in Orthopedic Surgery, the same or similar
field as Dr. Schulze.
With respect to the statute’s requirements regarding certification of breach
and proximate cause, the Amended Affidavit states that Defendants’ “continuing
medical negligence” both during and after the surgery until December 28, 2018, the
date of the last post-operative visit, was the proximate cause of Plaintiff’s injuries
and that Plaintiff’s injuries were avoidable but for the surgical procedure and follow-
up care. The Amended Affidavit separately states that “[a]s a result of Schulze’s
misdiagnosis, mistaken large incision, and negligent follow up [sic] care,” Plaintiff
suffered the injuries in this case. As with the Amended Complaint, the Amended
Affidavit fails to clarify whether the term “misdiagnosis” refers to pre-surgery
diagnosis, post-surgery diagnosis, or both. The Amended Affidavit also fails to state
whether this “misdiagnosis” was a proximate cause of Plaintiff’s injuries, and as
noted supra, states that Defendants’ negligence during and after the surgery – but
not before the surgery – proximately caused Plaintiff’s injuries.
In Kalinowski, supra, this Court rejected an affidavit of merit – while allowing
a supplemental affidavit to be filed – because the original affidavit was unclear as to
whether alleged negligent conduct was a proximate cause of the plaintiff’s injury or
was instead merely a factor in that injury.40 As the Court explained,
While the court will not turn the affidavit of merit procedure into a
mini-summary judgment, the court will not parse [the affidavit] to
glean [its] meaning. If the expert believes Defendants’ negligence
40
2012 WL 1413999, at *1.
13
proximately caused Kalinowski’s injuries, the affidavit should say so
in simple, clear language.41
Similarly, if Plaintiff’s expert believes that any misdiagnosis, whether pre-surgery
or post-surgery, was a proximate cause of Plaintiff’s injuries, he must say so in
affidavit form.
Therefore, the Court finds that the Amended Affidavit satisfies the
requirements of 18 Del. C. § 6853(a)(1) and (c) with respect to Plaintiff’s allegations
of continuing medical negligence relating to the October 3, 2018, surgery and the
post-surgery follow-up care. The Court will permit Plaintiff to file a supplemental
affidavit addressing any allegations of negligence relating to misdiagnosis, as
explained below.
CONCLUSION
For the foregoing reasons, Defendants’ Renewed Motion to Dismiss is
DENIED in part and DEFERRED in part, and Plaintiff’s Amended Affidavit of
Merit is ACCEPTED in part and DEFERRED in part. Within 21 days from the
date of this Opinion and Order, Plaintiff may file a second amended complaint
addressing whether any pre-surgery diagnosis or misdiagnosis was part of the
alleged continuum of negligent medical treatment. Within that same 21-day period,
Plaintiff may also submit a supplemental affidavit of merit clarifying whether any
pre-surgery “misdiagnosis” was part of the continuing course of negligent medical
treatment, and addressing whether any “misdiagnosis,” either pre-surgery or post-
surgery, was a proximate cause of Plaintiff’s injuries. Following any such filings,
or if no such submissions are filed then following the expiration of the 21-day period,
the Court will issue a supplemental decision addressing these issues. Defendants
41
Id.
14
will not be required to file a responsive pleading until the Court issues its
supplemental decision.
IT IS SO ORDERED.
/s/Noel Eason Primos
Judge
NEP/wjs
Via File & ServeXpress
Oc: Prothonotary
Counsel of Record
15