Phipps v. St. Francis Hospital Inc.
Filing
9
OPINION. Signed by Judge Joseph E. Irenas on 11/16/2011. (lih)
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
SHERRI PHIPPS,
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Plaintiff,
v.
ST. FRANCIS HOSPITAL, INC.,
Defendant.
HONORABLE JOSEPH E. IRENAS
CIV. ACTION NO. 11-820 (JEI)
OPINION
APPEARANCES:
HUDSON & CASTLE LAW, LLC
By: Ben T. Castle, Esq.
Bruce L. Hudson, Esq.
2 Mill Road, Suite 202
Wilmington, Delaware 19806
Counsel for Plaintiff
MORRIS JAMES LLP
By: Dennis D. Ferri, Esq.
500 Delaware Avenue, Suite 1500
P.O. Box 2306
Wilmington, Delaware 19899
Counsel for Defendant
IRENAS, Senior District Judge:
In this diversity negligence suit1, Plaintiff Sherri Phipps
asserts that “agents” of Defendant, St. Francis Hospital, Inc.,
fractured her neck while “moving her from a gurney to her
hospital bed” (Compl. ¶ 4).
The hospital moves to dismiss the
Complaint based on Plaintiff’s failure to file an affidavit of
merit pursuant to 18 Del. C. § 6853 (hereafter the “Affidavit of
1
The Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1332. Plaintiff is a citizen of Pennsylvania.
Defendant is a citizen of Delaware. The amount in controversy is
alleged to exceed $75,000.
Merit statute”).
The Court concludes that this type of
negligence claim is not encompassed by the Affidavit of Merit
statute, therefore the Motion will be denied.2
I.
The Complaint contains five paragraphs-- two of which
identify the parties, and one which states the statutory basis
for this Court’s subject matter jurisdiction.
Thus only two
paragraphs contain the factual allegations directly relevant to
the merits of this dispute.
4.
They read, in their entirety:
Defendant, acting through its agents, servants
and employees including nursing and patient
attendant
personnel,
committed
common
law
2
In opposition to the Motion, Plaintiff also argues that
Delaware’s affidavit of merit requirement is procedural, not
substantive, and therefore does not apply in diversity suits
brought in federal court. See generally Erie v. Tompkins, 304 U.S.
64 (1938). In light of the Court’s holding, it need not reach the
issue. However, the Court notes that the Third Circuit and many
Delaware district courts have implicitly assumed that the
affidavit of merit statute is applicable in diversity suits. See,
e.g., Woods v. First Corr. Med., Inc., 2011 U.S. App. LEXIS 17377
(3d Cir. Aug. 18, 2011); Hartman v. Corr. Med. Servs., 366 F.
App’x 453 (3d Cir. 2010); Davis v. Corr. Med. Servs., 760 F. Supp.
2d 469 (D. Del. 2011); Turner v. Kastre, 741 F. Supp. 2d 578 (D.
Del. 2010); Diaz v. Carroll, 570 F. Supp. 2d 571 (D. Del. 2008).
Additionally, the Third Circuit has explicitly held that the
affidavit of merit requirements under both Pennsylvania and New
Jersey law are substantive law and therefore apply in diversity
suits. See Liggon-Redding v. Estate of Sugarman, -- F.3d –-, 2011
WL 4552470 at *6 (3d Cir. Oct. 4, 2011) (“we conclude that
Pennsylvania Rule 1042.3, mandating a certificate of merit in
professional negligence claims, is substantive law under the Erie
Rule and must be applied as such by federal courts.”); Chamberlain
v. Giampapa, 210 F.3d 154, 157 (3d Cir. 2000) (holding that “the
New Jersey affidavit of merit statute . . . must be applied by
federal courts sitting in diversity.”).
2
negligence when it deviated from acceptable
standards of care in violation of 18 Del. C.
Chap. 68, in that they caused a fracture of the
cervical vertebrae at levels C2-C3 by striking
Plaintiff’s head against a hard surface while
moving her from a gurney to her hospital bed on
or about September 20, 2009.
5.
As a direct and proximate result of Defendant’s
negligence, Plaintiff sustained a fracture of her
neck, endured surgeries, loss of motion and
sensation, partial paralysis of her right arm and
hands [sic], pain and suffering, some or all of
which is permanent in nature.
(Compl. ¶ 4-5)
As noted previously, the Defendant hospital moves to dismiss
based on Plaintiff’s failure to file an affidavit of merit.
II.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”
In order to survive a motion to
dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.
Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
While a court must accept as true all allegations in the
plaintiff’s complaint, and view them in the light most favorable
to the plaintiff, Mayer v. Belichick, 605 F.3d 223, 229 (3d Cir.
2010), a court is not required to accept sweeping legal
conclusions cast in the form of factual allegations, unwarranted
3
inferences, or unsupported conclusions.
Id.
The complaint must
state sufficient facts to show that the legal allegations are not
simply possible, but plausible.
Id. at 230.
“A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Ashcroft v.
Iqbal, 129 S.Ct. 1937, 1949 (2009).
III.
Delaware’s Affidavit of Merit statute provides, in relevant
part, “[n]o healthcare negligence lawsuit shall be filed in this
State unless the complaint is accompanied by: [a]n affidavit of
merit . . . stating that there are reasonable grounds to believe
that there has been healthcare medical negligence committed by
each defendant.”
18 Del. C. § 6853(a)(1).
The statute defines “health care” [sic] as “any act or
treatment performed or furnished, or which should have been
performed or furnished, by any health care provider3 for, to or
on behalf of a patient during the patient’s medical care,
treatment or confinement.”
18 Del. C. § 6801(4).
“Medical
negligence” is defined as “any tort or breach of contract based
3
“‘Health care provider’ means a person, corporation,
facility or institution licensed by this State . . . to provide
health care or professional services or any officers, employees or
agents thereof acting within the scope of their employment.” 18
Del. C. § 6801(5). Defendant admits that it is a health care
provider under the statute.
4
on health care or professional services rendered, or which should
have been rendered, by a health care provider to a patient.
The
standard of skill and care required of every health care provider
in rendering professional services or health care to a patient
shall be that degree of skill and care ordinarily employed in the
same or similar field of medicine as defendant, and the use of
reasonable care and diligence.”
18 Del. C. § 6801(7).
In Fassett v. Christiana Care Health Services, Inc., the
Superior Court of Delaware applied these definitions to hold that
the “garden variety tort claim” asserted by the plaintiff was not
subject to the affidavit of merit requirement.
2010 Del. Super.
LEXIS 251 at *5, *8 (Del. Super. Ct. June 17, 2010).
The
plaintiff asserted that he was injured “by an unknown employee”
of the defendant hospital who negligently pushed the plaintiff’s
wheelchair in a manner that caused the plaintiff’s “right leg
[to] bec[o]me caught between the floor and the wheelchair.”
at *1.
Id.
The Court explained that the suit was not a “health care
negligence lawsuit” asserting “medical negligence” because the
claim was not based on the “rendering of (or failure to render)
professional services [or health care] to a patient.”
8.
Id. at *7-
The court observed, “[t]he [Act] repeatedly manifests that it
applies only to negligence in the treatment of patients . . .
[and requires that] negligence must be proven by ‘expert medical
testimony,’” id., and then noted that the suit before it was “a
far cry from a medical error committed during the treatment of a
5
patient.”
Id. at *8.
The instant suit is analogous to Fassett.
Here Plaintiff
asserts that “nursing and patient attendant personnel” (Compl. ¶
4) caused a fracture in her neck by negligently striking her head
on a hard surface while transferring her from a gurney to a bed.
Just as the Fassett court held that the alleged negligent
operation of a wheelchair was not medical negligence as defined
by the affidavit of merit statute, this Court concludes that the
alleged negligent transfer of Plaintiff from a gurney to a
hospital bed is not medical negligence under the statute.
It
does not appear at this stage of the case that Plaintiff will
need expert testimony to establish a breach of the standard of
care or causation.
As in Fassett, this claim is merely a garden
variety tort claim in which a factfinder may find a departure
from the ordinary standard of care and causation without the
assistance of an expert.
Cf. Dishmon v. Fucci, -- Del. --, 2011
Del. LEXIS 601 at *5 (Del. Nov. 10, 2011) (“The purpose of 18
Del. C. § 6853 is to require that expert testimony be presented
to allege a deviation from the applicable standard of care.
The
General Assembly enacted this provision to reduce the filing of
meritless medical negligence claims.”) (internal citations and
quotations omitted).4
4
While the Complaint does assert in conclusory fashion that
the suit is a “medical malpractice action pursuant to 18 Del. C.
Chap. 68” (Compl. ¶ 1) the Court’s analysis does not focus on
conclusory legal statements but rather the factual allegations of
6
Accordingly, the Court holds that the Affidavit of Merit
statute does not apply to this suit, therefore Defendant’s Motion
to Dismiss will be denied.
IV.
For the above-stated reasons, Defendant’s Motion to Dismiss
will be denied.
The Court will issue an appropriate Order.
Date: November 16, 2011
s/ Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.
the Complaint. See Iqbal, 129 S.Ct. at 1949 (“the tenet that a
court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”) (discussing
Twombly, 550 U.S. at 555).
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