Murphy v. Bayhealth Medical Center, C.A. No. 03C-07-028 (RBY) (DE 1/9/2006)
| Decision Date | 09 January 2006 |
| Docket Number | C.A. No. 03C-07-028 (RBY). |
| Court | Supreme Court of Delaware |
| Parties | ROBERT C. MURPHY, and CATHERINE P. MURPHY, Plaintiffs, v. BAYHEALTH MEDICAL CENTER, DELMARVA EMERGENCY PHYSICIANS, LLP, ROBERT CHRZANOWSKI, NIDIA DE YANEZ, M.D., P.A. and J. RAFAEL YANEZ, M.D., Defendants. |
Gary W. Aber, Esq., Aber, Goldlust, Baker & Over, Wilmington, Delaware, Attorney for Plaintiffs.
John D. Balguer, Esq., White & Williams, Wilmington, Delaware, Attorney for Defendant Yanez.
Mason E. Turner, Jr., Esq., Pricket, Jones & Elliott, Wilmington, Delaware, Attorney for Defendants Bayhealth, Delmarva Emergency Physicians, LLP and Chrzanowski.
On September 16, 2005, this Court heard the Motion of Defendants, Bayhealth, Inc. and Bayhealth Medical Center, Inc. (collectively referred to as "Bayhealth"), to dismiss the claims of Plaintiffs, Robert C. Murphy and Catherine P. Murphy, pursuant to Del. Super. Ct. Civ. R. 37(b). Bayhealth argues that Plaintiffs' claims against Bayhealth should be dismissed, because Plaintiffs failed to comply with this Court's April 21, 2005 Order, requiring Plaintiffs to produce their expert reports by August 15, 2005, and because Plaintiff's now asserted claims are an entirely new theory of liability. For the following reasons, Bayhealth's Motion to Dismiss should be GRANTED in part and DENIED in part.
Plaintiff, Robert C. Murphy, was injured in a motor vehicle accident on July 17, 2001. Plaintiff was transported from the scene to Kent General Hospital Emergency Room, where he was admitted overnight in the ICU for observation of an injury to his cervical spine, Central Cord Syndrome. During this admission, Plaintiff was treated by neurosurgeon, J. Raphael Yanez, M.D. On July 28, 2001, Plaintiff returned to Kent General Emergency Room with complaints of severe back pain, numbness, tingling, and sensory changes. Plaintiff was examined by Robert T. Chrzanowski, M.D., who consulted with Dr. Yanez. Dr. Chrzanowski diagnosed Plaintiff with Central Cord Syndrome, and released him with prescriptions for pain medication. Plaintiff returned to Kent General on July 31, 2001 with complaints of paralysis in both legs, thigh numbness, and left calf pain. Plaintiff was admitted to Kent General until August 3, 2001, when he was transferred to Milford Memorial Hospital. While at Milford Memorial, Plaintiff underwent a duplex scan on August 6, 2001, which revealed extensive deep venous thrombosis ("DVT").
Plaintiffs initiated this medical malpractice lawsuit on July 16, 2003 against Defendants Bayhealth, Delmarva Emergency Physicians, LLP, Robert T. Chrzanowski, M.D., Kent Diagnostic Radiology, P.A., Raphael Caccese, Jr., M.D., J. Raphael Yanez and Nidia De Yanez, M.D., P.A., and J. Raphael Yanez, M.D., individually. Plaintiffs claim that Defendants' failure to diagnose Plaintiff, Robert C. Murphy, with DVT caused him permanent injury. The only defendants remaining in this action are Bayhealth and J. Raphael Yanez and Nidia De Yanez, M.D., P.A., and J. Raphael Yanez, M.D., individually (collectively referred to as "Dr. Yanez"). The other defendants have been dismissed. Therefore, the only viable claims remaining against Bayhealth are Counts I and IV of the Complaint. Count I makes direct allegations of negligence against Bayhealth, and Count IV alleges that Bayhealth was liable for the negligence of Dr. Yanez.
On February 4, 2005, this Court denied Bayhealth's Motion for Summary Judgment on the issue of agency. Bayhealth argued that it was not liable for the negligence of any of the defendant doctors, who were independent contractors, and not agents of Bayhealth. The Court held that the issue of whether an agency relationship existed between Bayhealth and Dr. Yanez was a question of fact for the jury to decide.
Bayhealth originally moved to dismiss Plaintiffs' claims pursuant to Rule 37(b) on March 24, 2005. At that time, Plaintiffs had identified an expert for the claims against Dr. Yanez, but not the other defendants.1 As a result, Defendants Kent Diagnostic Radiology, Caccesse, and Bayhealth moved for dismissal under 18 Del.C. §§ 6853 and 6854 for Plaintiffs' failure to identify an expert witness in a medical malpractice action. On April 15, 2005, this Court gave Plaintiffs a deadline of August 15, 2005 to produce expert reports to Defendants. Failure of Plaintiffs to comply would result in dismissal of the action. Around the same time, Plaintiffs' original attorney withdrew his appearance in this matter. The Court's Order also gave Plaintiffs a deadline of June 15, 2005 to find new counsel. Gary W. Aber, Esquire subsequently entered his appearance on behalf of Plaintiffs on June 6, 2005.
On August 26, 2005, Defendants, Kent Diagnostic and Caccesse, renewed their Motion to Dismiss Pursuant to Rule 37(b), because Plaintiffs had failed to produce expert witness reports by the August 15, 2005 deadline.2 Bayhealth filed a similar Motion to Dismiss on August 29, 2005. Plaintiffs filed a response to Defendants' Motions on September 13, 2005, and attached a copy of the report of nursing expert Barbara Freimuth, BSN, RN, BC, LNC. Ms. Freimuth opined that the Bayhealth nurses were negligent in failing to accurately assess Plaintiff Robert Murphy for DVT.
This Court heard arguments on Bayhealth's Motion to Dismiss on September 16, 2005. In addition to arguing that Plaintiffs failed to produce their expert witness reports within the time provided by this Court, Bayhealth also argued that Plaintiffs should be precluded from raising allegations of nursing negligence, which were not claimed in the pleadings, and which — at this point — would be new theories long barred by time.
This Court has the discretion to dismiss an action, or grant a default judgment, if a party to the litigation fails to abide by an order of the Court.3 Dismissal or default judgment is an extreme remedy that typically looks to a demonstration of " `some element of wilfulness or conscious disregard of the order.'"4 In Sundor, the Delaware Supreme Court reversed the Trial Court's Order of default judgment against defendant for its failure to answer all of plaintiff's interrogatories by the deadline. The Trial Court had reasoned that default judgment was appropriate, because defendant's answers to some, but not all, of the interrogatories were "evasive and incomplete."5 Although the Supreme Court agreed that defendant's actions were evasive and incomplete, the Court found that default judgment was a penalty too severe for defendant's actions.6
In the present matter, Plaintiffs' obligation to produce expert witness reports was long overdue but was complicated by the withdrawal of their original counsel in April 2005. Nevertheless, Plaintiffs were given until June 15, 2005 to hire new counsel, and were given a final deadline of August 15, 2005 to produce expert reports still in place. Plaintiffs did retain new counsel before the June 15, 2005 deadline. Gary W. Aber, Esquire entered his appearance on behalf of Plaintiffs on June 6, 2005. Within the ten weeks between Mr. Aber's appearance in this matter and the August 15, 2005 deadline, Plaintiffs produced a report for an expert witness who opined about the claims against Dr. Yanez. Mr. Aber's analysis of the case also resulted in the dismissal of Defendants Cacceseand Kent Diagnostic Radiology in October 2005.
However, Plaintiffs did not produce an expert witness report for the claims against Bayhealth until September 13, 2005. Plaintiffs filed the report of Barbara Freimuth, BSN, RN, BC, LNC, with their response to Bayhealth's Motion to Dismiss. Plaintiffs' failure to submit an expert report for the claims against Bayhealth by the deadline is not indicative of a willful or conscious disregard of the Order. This is, however, a case where deadlines had been breached previously, and were extended for a limited time due to Plaintiffs' recent complications. Thus, the circumstances do not fit into the Sundor consideration.
Moreover, in civil actions, allegations of negligence must be averred with particularity.7 The purpose of the particularity requirement is to put the defendant on notice of the claims in order to give the defendant a fair opportunity to plan a defense.8 Generally, Rule 9(b) is satisfied, when the pleading advises the defendant "(1) what duty, if any, was breached; (2) who breached it; (3) what act or failure to act breached the duty; and (4) the party upon whom the act was performed."9 Pleadings that comply with Rule 9(b) cannot merely " `state the result or conclusion of fact arising from circumstances not set forth in the declaration, nor... make a general statement of the facts which admits of almost any proof to sustain it.'"10 In the context of a medical malpractice action, the particularity requirement of Rule 9(b) must be "applied in light of the particular situation presented by the case."11 "Even exceptionally injured plaintiffs must plead with particularity the deviation from the standards of care and causation."12
In Riggs, the Court held that the Amended Complaint failed to make allegations of nursing negligence with sufficient particularity.13 Therefore, the Court found that the Amended Complaint did not comply with Rule 9(b).14 The Court rejected the plaintiffs' argument that the admitted deficiencies of the Amended Complaint were remedied by the opinion of an expert, who would testify as to the negligence of the hospital's nursing staff.15 The Court dismissed the claims of nursing negligence, because the Amended Complaint was not "specific enough to create a claim against Beebe for a breach of the standard of care by the nursing staff of Beebe."16
Plaintiffs' claims of nursing negligence in the present case are even less...
To continue reading
Request your trial