Smith v. Kobasa, M.D.

IN THE SUPREME COURT OF THE STATE OF DELAWARE
CRYSTAL SMITH, §
§ No. 404, 2014
Plaintiff Below- §
Appellant, §
§
v. " Court Below—Superior Court
§ of the State of Delaware,
WALTER KOBASA, JR, MD. and § in and for New Castle County
CI-[RJSTIANA CARE HEALTH § CA. No. N14C-01-241
SYSTEM, §
§
Defendants Below- §
Appellees. §
Submitted: February 27, 2015
Decided: April 24, 2015
Before STRINE, Chief Justice, VALIHURA, and VAUGHN, Justices.
O R D E R
This 24‘h day of April 2015, upon consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:
(l) The plaintiff-appellant, Crystal Smith (“Smith”), filed this
appeal from three orders of the Superior Court, dated July 1, 2014, which
denied Smith’s second motion for an extension of time to file an Affidavit of
Merit as to each defendant and granted the defendants-appellees’ respective
motions to dismiss Smith’s medical malpractice complaint for failure to file
the required Affidavit in a timely manner. We find no merit to the appeal.
Accordingly, we affirm the Superior Court’sjudgment.
(2) On January 28, 2014, Smith, acting pro se, filed a medical
malpractice complaint against Walter Kobasa, Jr., MD. (“Kobasa”), and
Christiana Care Health System (“CCHS”). Smith’s two-page complaint
alleged that the defendants were negligent for failing to perform a cesarean
section on January 28, 2012, which resulted in the death of her child in
utero. Her complaint was not accompanied by an Affidavit of Merit as to
either defendant or a request for an extension of time to obtain the necessary
affidavits.2
(3) CCHS filed a motion to dismiss on February 19, 2014, which
Kobasa joined on March 4, 2014. The Superior Court held a hearing on the
motion to dismiss on March 28, 2014. The defendants argued that Smith’s
complaint did not comply with the statutory requirements and should not
have been accepted by the Prothonotary for docketing.3 Smith asserted that
she did not attach an Affidavit of Merit to her complaint because the medical
' Smith reported to the hospital emergency room on January 28, 2012 when she was
thirty-eight weeks pregnant, but she was later released. During office visits on January
30, 2012 and February 6, 2012, Kobasa examined Smith and recorded the presence of a
fetal heartbeat. During Smith’s office visit on February 13, 2012, Kobasa recorded no
fetal heartbeat and referred Smith to the hospital.
2 DEL. CODE ANN. tit. 18, § 6853(a)(l) (Supp. 2014). Section 6853(a)(l) provides that no
medical negligence complaint shall be filed unless it is accompanied by an affidavit of
merit as to each defendant signed by an expert witness or a motion to the extend the time
for filing the affidavit.
3 Id. Section 6853(a)(l) further provides that= if the affidavit or motion is not filed with
the complaint, the clerk of the court “shall refuse to file the complaint and it shall not be
docketed with the court...”
records provided to her by the defendants (and by her previous attorney)
were incomplete and prevented several experts whom she contacted from
creating the necessary Affidavit. At the conclusion of the hearing, the
Superior Court denied the defendants’ motions to dismiss, reasoning that
Smith was pro se and had alleged that incomplete records had frustrated her
attempts to obtain the Affidavit of Merit. The court granted Smith 45 days
(or until May 12, 2014) to file the Affidavit.
(4) On April 4, 2014, CCHS filed a motion for reargument, arguing
that the Superior Court had overlooked case law supporting dismissal of
Smith’s complaint for failure to comply with the statutory requirements.4
Smith did not respond to the motion for reargument. Instead, on May 7,
2014, she filed a motion requesting a further extension of time to obtain
certain medical records that she contended were necessary in order to file an
Affidavit of Merit. The defendants opposed her request. The Superior
Court held a hearing on May 16, 2014. The judge ordered Kobasa to deliver
a copy of Smith’s medical records to the judge by May 19, 2014. The
Superior Court deferred any further ruling and rescheduled the hearing until
4 See Dislnmm v. Fucci, 32 A.3d 338, 344-45 (Del. 2011) (“From the plain language of
Section 6853, it is clear that where a party fails to file an Affidavit of Merit with the
Superior Court, the Court will not entertain the cases").
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May 30, 2014, directing the defendants to be prepared to present information
about Smith’s (or her former counsel’s) record requests.
(5) At the May 30, 2014 hearing, Smith produced an Affidavit of
Merit. The defendants renewed their motion to dismiss, arguing, among
other things, that Smith’s original explanation for failing to timely file the
Affidavit was the lack of complete medical records, yet no additional
medical records had been provided to her and she was able to obtain the
Affidavit anyway. Smith asserted that she had made several record requests
and that the records she first received were different from the records she
received later. At the conclusion of the hearing, the Superior Court gave
Smith until June 6, 2014 to submit documentation supporting her contention
that the records she received from the defendants contained discrepancies.
The court also gave the defendants until June 13, 2014 to file new or revised
motions.
(6) Smith failed to submit any further documentation. CCl-lS filed
a second motion to dismiss and a revised motion for reargument of the
Superior Court’s denial of its first motion to dismiss. Smith did not respond
to either motion. On July 1, 2014, the Superior Court issued three different
orders. The first order denied, mmc pro tzmc, Smith’s May 7lh request for a
further extension of time to file the Affidavit of Merit. The second order
granted CCI-IS’s second motion to dismiss. The third order granted
Kobasa’s motion to dismiss. The Superior Court held that, despite affording
Smith considerable leniency to support her explanation for failing to file the
required Affidavit of Merit in a timely manner, Smith was unable to
establish that her failure was due to her inability to obtain complete records
from the defendants. In fact, the court noted, the records that Smith initially
contended were incomplete were the same records that she later used to
obtain the untimely Affidavit she submitted on May 30, 2014. The Superior
Court dismissed Smith’s complaint for failure to file her Affidavit of Merit
in a timely manner. This appeal followed.
(7) After careful consideration of the parties’ briefs, the Court finds
no merit to Smith’s appeal. Section 6853(a)(l) of Title 18 of the Delaware
Code requires that “[n]o healthcare negligence lawsuit shall be filed in this
State unless the complaint is accompanied by...[a]n affidavit of merit as to
each defendant signed by an expert witness....stating that there are
reasonable grounds to believe that there has been healthcare medical
negligence committed by each defendant.”5 Moreover, the statute directs
5 DEL. CODE ANN. tit. 18, § 6853(a)(l) (Supp. 2014). Under § 6853(e), the only
exceptions to the affidavit requirement, which are inapplicable in this case, are when the
alleged medical negligence involves: (i) a foreign body unintentionally left within the
patient following surgery; (ii) a fire or explosion originating in a substance used in
treatment and occurring during the course of treatment; or (iii) a surgical procedure on
the wrong patient or wrong body part
that, if the required Affidavit or a motion for extension of time does not
accompany the complaint, then “the Prothonotary or clerk of the court shall
refuse to file the complaint and it shall not be docketed with the court.”6
(8) Although this Court noted, under very different circumstances,
that the Superior Court has some discretion to accept an untimely Affidavit
of Merit,7 we find no abuse of the Superior Court’s discretion in refusing to
accept Smith’s untimely Affidavit under the circumstances of this case. It is
undisputed that, when she filed her complaint on January 28, 2014, Smith
did not include an Affidavit of Merit as to either defendant, nor did she
include a motion to extend the time to file the Affidavit. Even if Smith had
filed a timely motion to extend the time to filed the required Affidavit,
Section 6853(a)(2) permits the Superior Court, for good cause shown, to
“grant a single 60-day extension.” Good cause under the statute includes,
but is not limited to, the inability to obtain relevant medical records for
expert review.8
(9) The Superior Court granted Smith one extension of time in this
case and gave her numerous opportunities to establish good cause for her
“ Id. § 6853(a)(1).
7 See Beckett v. Beebe Medical Cur, 897 A.2d 753, 757-58 (Del 2006) (holding that the
Superior Court had discretion to accept plaintiff’s untimely Affidavit where plaintiff’s
counsel erroneously believed that the Affidavit was not required because the Complaint
fell under the foreign body exception to the Affidavit requirement).
“ DEL. Com: ANN. tit. [8, § 6853(a)(2) (Supp. 2014).
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inability to timely file the Affidavit of Merit. Smith was unable to establish
any cause. Her pro se status does not excuse her failure to comply with the
statutory requirements and the Superior Court’s orders.9 Accordingly, we
find no abuse of the Superior Court’s discretion in denying Smith’s second
request for an extension of time, nor do we find any error in the Superior
Court’s dismissal of Smith’s complaint.
NOW, THEREFORE, IT IS ORDERED that the judgment of the
Superior Court is AFFIRMED.
BY THE COURT:
Justice