Doe v. Bradley, C.A. Nos. N10C–05–023 JRS, N10C–10–317 JRS.
| Citation | 58 A.3d 429 |
| Decision Date | 08 May 2012 |
| Docket Number | C.A. Nos. N10C–05–023 JRS, N10C–10–317 JRS. |
| Parties | Jane DOE 30'S MOTHER, Individually, and as Parent, Guardian, and Next Friend of Jane Doe 30, a Minor Child, Individually, and on behalf of all others similarly situated, Plaintiffs, v. Earl B. BRADLEY, M.D.; Bay Bees Pediatrics, P.A., a Delaware Corporation; Beebe Medical Center, Inc., a Delaware Corporation; Medical Society of Delaware, a Delaware Corporation; James P. Marvel, Jr., M.D.; Carol A. Tavani, M.D.; Lowell F. Scott, Jr., M.D.; Lowell F. Scott, M.D., P.A., John J. Ludwicki, M.D., the Pediatric and Adolescent Center in Lewes, Chartered; and Nicholas Berg, M.D., Defendants. |
| Court | Superior Court of Delaware |
OPINION TEXT STARTS HERE
Upon Consideration of The Medical Society of Delaware, James P. Marvel, Jr., M.D. and Carol A. Tavani, M.D.'s Motion to Dismiss Plaintiffs' Amended Complaint. GRANTED in Part and DENIED in Part.
Upon Consideration of John J. Ludwicki, M.D. and The Pediatric and Adolescent
Center in Lewes, Chartered's Motion to Dismiss Plaintiffs' Amended Complaint. GRANTED with limited leave to amend.
Upon Consideration of Nicholas Berg, M.D.'s Motion to Dismiss Plaintiffs' Amended Complaint. GRANTED with limited leave to amend.
Upon Consideration of Lowell F. Scott, Jr., M.D. and Lowell F. Scott, M.D., P.A.'s Motion to Dismiss Plaintiffs' Amended Complaint. GRANTED with limited leave to amend.
Ben T. Castle, Esquire and Bruce L. Hudson, Esquire, Hudson & Castle Law, LLC, Wilmington, Delaware; Craig A. Karsnitz, Esquire, Richard A. DiLiberto, Jr., Esquire and Neilli M. Walsh, Esquire, Young Conaway Stargatt & Taylor, LLP, Georgetown, Delaware; Bartholomew J. Dalton, Esquire, Dalton & Associates, P.A., Wilmington, Delaware; Chase T. Brockstedt, Esquire, Bifferato Gentilotti LLC, Lewes, Delaware; Philip C. Federico, Esquire, Schochor, Federico & Staton, Baltimore, Maryland; Alexander J. Palamarchuk, Esquire, Alan L. Frank Law Associates, P.C., Jenkintown, Pennsylvania. Attorneys for Class Plaintiffs.
Collins J. Seitz, Jr., Esquire, Seitz Ross Aronstam & Moritz, LLP, Wilmington, Delaware; Matthew F. Boyer, Esquire and Josiah R. Wolcott, Esquire, Connolly Bove Lodge & Hutz, LLP, Wilmington, Delaware; John D. Balaguer, Esquire and Christine Kane, Esquire, White & Williams, LLP, Wilmington, Delaware. Attorneys for Defendants, Medical Society of Delaware, James P. Marvel, Jr., M.D., and Carol A. Tavani, M.D.
Jeffrey M. Austin, Esquire and Colleen D. Shields, Esquire, Elzufon Austin Reardon Tarlov & Mondell, P.A., Wilmington, Delaware. Attorneys for Defendants, Lowell F. Scott, Jr., M.D. and Lowell F. Scott, M.D., P.A.
James E. Drnec, Esquire and Melony Anderson, Esquire, Balick & Balick, LLC, Wilmington, Delaware; Natalie C. Magdeburger, Esquire and Chantelle M. Custodio, Esquire, Hodes, Pessin & Katz, P.A., Towson, Maryland; Michael C. Rosendorf, Esquire, Law Office of Michael C. Rosendorf, Stanton, Delaware; M. Natalie Sherry, Esquire, Kramon & Graham, P.A., Baltimore, Maryland. Attorneys for Defendants, John L. Ludwicki, M.D. and the Pediatric and Adolescent Center in Lewes, Chartered.
Michael W. Arrington, Esquire, Parkowski Guerke & Swayze, P.A., Wilmington, Delaware. Attorney for Defendant, Nicholas Berg, M.D.
Notwithstanding an emerging trend to the contrary, in Delaware, a plaintiff still must establish that a defendant owed her a duty of care in order to state a prima facie claim of negligence.1 Regardless of how morally, ethically or socially deplorable a defendant's conduct may be viewed by other constituencies, in the eyes of the law, the defendant may not be held to answer in negligence unless and until the court determines, as a matter of law, that the defendant owed a duty of care to the plaintiff.This is and should remain the law of Delaware.
This opinion marks the second occasion the Court has considered whether certain defendants in this class action, each of whom are Delaware physicians or groups of Delaware physicians, owed a duty to class plaintiffs to protect them from sexual abuse allegedly perpetrated against them by their pediatrician, also a Delaware physician and now a convicted sex offender. After considering a motion for judgment on the pleadings with respect to an earlier version of the class action complaint, the Court determined that the complaint failed to allege facts, even if proven, that would trigger a tort duty of care on the part of the then-moving defendants to report the pediatrician to law enforcement or regulatory authorities, or otherwise to protect the pediatrician's patients from harm.2 In so holding, the Court noted that certain allegations in the complaint suggested that other facts might be plead that could be sufficient to implicate a duty of care under theories of tort liability recognized in Delaware law. Accordingly, the Court granted leave to amend the complaint so that the class plaintiffs could try again to plead viable claims of negligence. The class plaintiffs have filed their amended complaint and several defendants have now moved to dismiss it.
The defendants' refrain is a familiar one—the class plaintiffs have not and cannot plead facts that are sufficient to impose upon the defendants a duty to act for the protection of individuals with whom they had no “special relationship,” as that term has been defined and interpreted under Delaware law. Having carefully reviewed the motions and responses, the Court again must agree. The class plaintiffs have failed to plead facts (or otherwise to suggest that such facts exist) that would justify the imposition of a duty upon these defendants to act for the benefit and protection of the class when no “special relationship” exists between the defendants and the class plaintiffs or the defendants and the offending pediatrician. To the extent the claims in the amended complaint raise claims of nonfeasance, the viability of which depends upon the existence of such a “special relationship,” the motions to dismiss must be GRANTED with prejudice.
But the class plaintiffs have made new allegations that some of the defendants (those affiliated with the Medical Society of Delaware) affirmatively committed to undertake a duty to protect the pediatrician's patients from harm. These allegations, if proven, would be sufficient to trigger a duty on the part of the physicians/defendants who undertook to protect patients to discharge that duty with reasonable care. The motions to dismiss as to these claims, therefore, must be DENIED.
The class plaintiffs also have submitted evidence and factual argument in response to the motions to dismiss that suggest other defendants (physicians in the Sussex County medical community) either maintained doctor-patient relationships with some of the class plaintiffs, or took affirmative steps to refer some of the class plaintiffs to the offending pediatrician, when they knew or should have known that the pediatrician was sexually abusing his patients. While the amended complaint, at best, only alludes to these facts, the extraneous evidence and briefing submittedby plaintiffs' counsel suggest that viable allegations of medical negligence and/or common law negligence might be brought against certain of the individual physician defendants by members of the class with whom they maintained a doctor-patient relationship. Accordingly, the motions to dismiss as to these claims must be GRANTED without prejudice, to reflect that the amended complaint, as plead, fails to state any claim of negligence but might, if further amended, state viable individual claims of common law negligence and/or medical negligence against the “individual defendants” as defined later in this opinion.
Plaintiff, Jane Doe 30, is a child born on June 17, 1997, and a former patient of Earl B. Bradley, M.D. (“Dr. Bradley”), a Delaware licensed physician who specialized in pediatric medicine.3 Jane Doe 30 has sustained physical, mental and emotional damages as a result of abuse perpetrated against her by Dr. Bradley while she was a patient in Dr. Bradley's medical practice located in Sussex County, Delaware.4 She and her mother represent a class of potentially hundreds, if not thousands, of former child patients of Dr. Bradley and their parents in pursuing compensatory and exemplary damages against Dr. Bradley, his medical practice and other defendants for harm proximately caused by Dr. Bradley's abusive conduct. 5
Defendant, Beebe Medical Center, Inc. (“Beebe”), is a hospital operating in Lewes, Delaware. It is alleged that Beebe employed Dr. Bradley as a staff physician and Chief of Pediatrics between 1994 and 1999, despite knowing that he was the subject of a prior complaint of improper sexual contact with a young patient in Pennsylvania.6 Following his employment at Beebe, Dr. Bradley continued to have hospital privileges and to hold administrative positions and “on call” duties at Beebe through 2009.7 In 1996, Beebe received complaints from several sources regarding Dr. Bradley's improper conduct with children in his medical practice. The complaints were investigated and, for a brief period of time after the complaints were received, Beebe required Bradley to be chaperoned during office visits. 8 During this time, “Dr. Bradley remained an employee of Beebe and no reports [of the suspected abuse] were made by Beebe to professional associations ... or to independent authorities.” 9
Defendant, Medical Society of Delaware (“Medical Society”), is a voluntary, non-profit association of physicians within Delaware. Its primary purpose is to aid physicians in the practice of medicine and to ensure that patients of Delaware physicians receive quality medical care.10 One of its goals is to “enhance the betterment of public health and to enlighten the public at large on medical matters of general and special concern.” 11 The Medical Society has no statutory or regulatory...
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