DiFilippo v. Beck

• Decision Date: 25 August 1981
• Docket Number: Civ. A. No. 77-456.
• Citation: 520 F. Supp. 1009
• Parties: John R. DiFILIPPO, Plaintiff, v. Joseph R. BECK, M.D., and Charles Karpinski, M.D., Defendants.
• Court: U.S. District Court — District of Delaware

520 F. Supp. 1009

John R. DiFILIPPO, Plaintiff, v. Joseph R. BECK, M.D., and Charles Karpinski, M.D., Defendants.

Civ. A. No. 77-456.

United States District Court, D. Delaware.

August 25, 1981.

Robert T. Aulgur, Jr. of Wilson & Whittington, P.A., Wilmington, Del., and Francis X. Nolan of Donsky, Levin, Dashevsky & Nolan, P.C., Philadelphia, Pa., for plaintiff.

Jane R. Roth of Richards, Layton & Finger, Wilmington, Del., for defendant Charles Karpinski, M.D.

Victor F. Battaglia and Samuel R. Russell of Biggs & Battaglia, Wilmington, Del., for defendant Joseph R. Beck, M.D.

MEMORANDUM OPINION

LATCHUM, Chief Judge.

In this diversity action, plaintiff, John R. DiFilippo, seeks compensatory damages from the defendant medical doctors, Joseph R. Beck and Charles Karpinski, for injuries plaintiff allegedly sustained as a result of defendants' malpractice committed during their course of treatment of the plaintiff for back pain, leg weakness and kidney stones. (Docket Item "D.I." 1.) Jurisdiction exists by virtue of 28 U.S.C. § 1332(a)(1).¹

Defendants have now petitioned this Court to convene a "malpractice review panel" pursuant to 18 Del.C. § 6814 for the purpose of reviewing plaintiff's malpractice claims. Plaintiff opposes this petition on a number of grounds which the Court will later consider. The Court will first discuss the background and purposes of the Delaware Health Care Malpractice Act (the "Act").²

A. BACKGROUND — THE ACT

The adoption of the Act in 1976 was the response of the Delaware General Assembly to what it perceived to be a malpractice crisis in medical care. In so acting, the General Assembly made these legislative findings:

WHEREAS, the number of suits and claims for damages both in Delaware and throughout the Nation as well as the necessary costs of defense and the size of judgments and settlements thereon, arising from professional patient care have increased tremendously in the past several years; and

WHEREAS, there has been a tremendous increase in the cost of liability insurance coverage for health care providers in Delaware, and in some instances the withdrawal of liability insurance companies from the business of insuring health care providers in Delaware, endangering the ability of the citizens of Delaware to continue to receive quality health care as well as adequate and just compensation for negligent injuries; and

WHEREAS, the General Assembly determines it is necessary to make certain major modifications to its current legal system as it relates to health care malpractice claims if the citizens of Delaware are to continue to receive a high quality of health care while still assuring that any person who has sustained bodily injury or death as a result of a tort or breach of contract on the part of a health care provider resulting from professional services rendered, or which should have been rendered, can obtain a prompt determination of adjudication of that claim and receive fair and reasonable compensation from financially responsible health care providers who are able to insure their liability, under a strictly construed fault principal as now, at a cost which is not prohibitive and does not lead to the problems and practices described above, while still maintaining Delaware's overall legal system as to health care malpractice claims except as modified by this legislation.

60 Del.L., ch. 373, Preamble (1976). Thus, the Delaware state courts have found that the purpose of the Act was —

to make available professional health care insurance at a reasonable cost and to establish a system through which a victim who has sustained injury or death as a result of a tort or breach of contract by a health care provider can be assured of a prompt adjudication of the claim and receive a fair and reasonable recovery for the losses sustained.

Lacy v. Green, 428 A.2d 1171, 1174 (Del.Super.1981).

The Act employs a variety of means to implement these goals. One of the principal means adopted was to provide for Malpractice Review Panels whose duties were described by the Delaware Superior Court in Lacy v. Green, supra at 1174, as follows:

Under the pertinent parts of 18 Del.C. ch. 68, any party to a civil action alleging medical malpractice has the right to convene a Malpractice Review Panel which reviews the case prior to the trial. 18 Del.C. § 6802. The review panel shall be composed of five voting members, including two health care workers, one attorney and two lay persons. 18 Del.C. § 6804(a). After reviewing the evidence and after any hearing before the panel requested by any party, the Malpractice Review Panel renders a written opinion stating the grounds upon which it is based and identifying the persons, texts or other authorities which were consulted by the panel in reaching its conclusion. Any party aggrieved by the panel's opinion shall have the right to review by the Superior Court of such opinion and the evidence considered by the panel. Based on a complete record of the panel proceedings, the Superior Court shall review the opinion, striking any portion of the panel's opinion which the Court finds to be based on error of law or not supported by substantial evidence. 18 Del.C. § 6811. This opinion shall then be admissible as prima facie evidence in any proceeding before the Superior Court. 18 Del.C. §§ 6811(c), 6812.

In addition, 18 Del.C., § 6814 requires the Delaware Insurance Commissioner to "convene malpractice review panels in the manner set forth in this subchapter upon request of a Federal District Court Judge sitting in a civil action in the District of Delaware alleging malpractice in the manner instructed by the said federal court, but also in a manner as consistent as possible with the process of selecting such panels provided for in Superior Court actions in this chapter." That section further provides that "the selection process of any such panel in a federal court action and its powers and duties shall be subject to the order of that said court and/or such rules as the federal court system shall designate for the implementation of such panels.³

Other means adopted by the General Assembly to deal with the perceived malpractice crisis are the provisions contained in 18 Del.C. §§ 6862, 6864 and 6865.

Section 6862 alters the collateral source doctrine in medical malpractice suits so as to permit the fact-trier to consider (a) evidence of any public collateral source of compensation or benefits, present and future, which will or might be paid to plaintiff because of his injuries, and (b) evidence of any and all changes, including prospective changes, in the marital, financial or other status of the plaintiff known at the time of trial.⁴

Section 6864 provides that where a plaintiff recovers a malpractice judgment against a health care provider, the Court may, after determining the amounts of the judgment awarded as compensation for future pain and suffering, for future expenses of care, and for any other future damages, respectively, direct that an amount sufficient to compensate the plaintiff for attorney's fees, litigation expenses and damages incurred for past health care and pain and suffering be paid immediately to plaintiff and that the remainder of the award be paid to plaintiff in equal or unequal monthly payments together with interest thereon. That section also provides that, if a plaintiff receiving installment payments shall die, the obligation to pay all or a portion of the remaining balance of the award shall terminate.

Finally, § 6865 limits the amount of the plaintiff's attorney's fees to 35% of the first $100,000 in damages, 25% of the next $100,000 of damages and 10% of the balance of any awarded damages, provided, however, that a plaintiff has the right to elect to pay for his attorney's services on a mutually satisfactory per diem basis, if the election is exercised in written form at the time of employment.

B. THE ERIE RAILROAD ISSUES

Plaintiff's first contentions are that the reference of his malpractice claims to a Malpractice Review Panel and the subsequent admission of the Panel's written opinion as prima facie evidence at trial of this action are matters of procedure and under the doctrine of Erie R.R. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) are not applicable to an action brought in Federal Court, and that in any case reference of the matter to a Malpractice Review Panel would impermissibly divest this Court of its diversity jurisdiction. Plaintiff relies upon Wheeler v. Shoemaker, 78 F.R.D. 218 (D.R.I.1978) which he finds is "substantially on all fours" with his contentions. In Wheeler, the U.S. District Court considered a request to refer a malpractice diversity action to a Medical Liability Mediation Panel established pursuant to the Rhode Island Medical Malpractice Reform Act. The Court held that to refer the action to a state panel appointed by the Presiding Justice of the State Superior Court would be an impermissible intrusion upon the Congressional grant of diversity jurisdiction because a referral to "such a panel amounts to little more than furnishing the state court an opportunity to pass upon the claim initially." Relying upon Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525, 78 S.Ct. 893, 2 L.Ed.2d 953 (1958), the Wheeler court also refused to "establish a reference procedure mimicking the state courts but staffed by appointment of the federal court" on the ground that reference to a malpractice panel was a matter of procedure which under the Erie R.R. doctrine ought not be employed in a federal court.

This Court declines to follow Wheeler because that case can no longer be considered a correct statement of the law. With the sole exception of the Wheeler court, every federal court which has considered medical malpractice acts similar to that of Delaware has held that the policies underlying the Erie R.R. doctrine require that diversity malpractice actions be referred to review...