Baskow v. The Center at Eden Hill ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOANNE BASKOW )
)
)
Plaintiff, )
)
v. ) C.A. No. N22C-10-424 DJB
)
THE CENTER AT EDEN HILL )
)
)
Defendant. )
Date Submitted:
Date Decided:
Order On Defendant’s Motion to Dismiss for
Failure to Comply with 18 Del. C. § 6853 - DENIED
Having considered Defendant’s Motion to Dismiss, Plaintiff’s responses
thereto, oral arguments of the parties and the record in this matter; the Court finds
the following:
(1) This Motion arises out of a healthcare medical negligence suit filed by
Plaintiff Joanne Baskow (“Plaintiff”), against The Center at Eden Hill.
(“Defendant”).
(2) Section 6853(a)(1) of Title 18 of the Delaware Code provides that all
healthcare negligence complaints must be accompanied by “[a]n affidavit of merit
as to each defendant signed by an expert witness . . . and accompanied by a current
curriculum vitae of the witness, stating that there are reasonable grounds to believe
that there has been health-care medical negligence committed by each defendant.”1
(3) OnMarch 31, 2023, Defendant requested an in camera review of the
Affidavit of Merit and curriculum vitae submitted by Plaintiffs in connection with
the Complaint to determine whether those documents comply with 18 Del. C. §§
6853(a)(1) and (c).2
(4) After reviewing the Affidavit of Merit and the accompanying
curriculum vitae, the Court found the submitted Affidavit insufficient in that failed
to state that the witness was engaged “in the same or similar field of medicine as the
defendant or defendants”…“in the 3 years immediately preceding the alleged
negligent act[s].”3 The Affidavit was not clear that the background and expertise of
this purported expert is in the field of care that is being alleged to have been
breached. Without more and in comparison to the specialties listed in the curriculum
vitae, the Court could not establish a link between these practice areas. As a result,
Plaintiff was given thirty (30) days to amend the Affidavit.
1
18 Del. C. § 6853(a)(1).
2
Joanne Baskow v. The Center at Eden Hill, N22C-10-424 DJB, D.I. 9.
3
Joanne Baskow v. The Center at Eden Hill, N22C-10-424 DJB, ORDER, May 19, 2023;
D.I. 11, citing 18 Del. C. § 6853(c).
2
(5) On August 9, 2023, the instant Motion to Dismiss was filed based upon
the fact that Plaintiff had not filed an updated Affidavit of Merit in accordance with
the time allotted by the Court in its May 19, 2023, Order.4
(6) On September 12, 2023, the Court sent Plaintiff a letter advising them
of the missed deadline to file a response to the Motion to Dismiss. The Court then
gave Plaintiff until close of business on September 13, 2023, to file a response.5
(7) On September 14, 2023, the Court received a letter from Plaintiff’s
counsel advising of issues with File & Serve Express, and stating that due to the
ongoing issues, Plaintiff was unaware of the deadline for both the amended Affidavit
of Merit or the response to the Motion to Dismiss.6 Plaintiff sought, and was
granted,7 an extension until September 18, 2023, to file a response. The updated
Affidavit of Merit was filed along with the September 14 letter.8 Defendant opposed
the extension of time.9
(8) Argument was held on the instant Motion on September 26, 2023. At
which time Plaintiff advanced the position that an attempt was made by members of
counsel’s firm to file the updated Affidavit of Merit sometime in the beginning of
August, 2023. Plaintiff’s counsel asserted that the updated Affidavit was accepted
4
D.I. 12.
5
D.I. 14.
6
D.I. 15.
7
D.I. 16.
8
Exhibit A, D.I. 15.
9
D.I. 17.
3
by a member of Superior Court prothonotary staff, but Plaintiff did not bring a copy,
and therefore did not receive a clocked-in copy of this filing. It was asserted at the
hearing that it was only during a routine check of the dockets in each of the firm’s
cases, did counsel learn of the Court’s Order and the need to file an updated
Affidavit. Plaintiff’s counsel indicated that their firm has been in touch with Lexis
File & Serve in an attempt to correct the issue of them not receiving notices of
filings.10 The Court requested documentation of this correspondence and such
documentation was provided the same day.11
(9) In the spirit of Delaware practice, Defense counsel acknowledged the
arguments of Plaintiff counsel and accepted them as the Court will do now. The
Court has concerns regarding the series of events that has occurred, but will
nonetheless accept the version of events relayed by counsel with the admonition that
now having knowledge of potential Lexis File & Serve notice issues, counsel should
make a more frequent docket checks to ensure no filings are not missed.
(10) The Court will take this opportunity now to review the updated
Affidavit of Merit filed and assess its compliance with 18 Del. C. § 6853. In so
10
See generally Oral Argument on Def. Mtn. to Dismiss, D.I. 20.
11
D.I. 19. The Court inquired with Prothonotary staff as to whether or not there have been
other complaints of lack of notice going to counsel from Lexis File & Serve to staff’s knowledge;
it was reported that the Prothonotary was unaware of any similar issues.
4
reviewing, the Affidavit now closes the gaps regarding the Court’s initial concerns
a satisfies 18 Del. C. § 6853.12
(11) Accordingly, the Motion to Dismiss is DENIED.
IT IS SO ORDERED, this 25th day of October, 2023.
______________________________
Danielle J. Brennan, Judge
Original to Prothonotary
12
See Dishmon v. Fucci, 32 A.2d 338, 342-343 (Del. 2011) (“…while the requirements of
Section 6853 play an important role in preventing frivolous claims, they are purposefully
minimal.”).
5