Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:06-cv-00349-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS R. MILLER, Plaintiff, v. DR. MAGGIE BAILEY, CMS, and FIRST CORRECTIONAL MEDICAL, INC., Defendants. : : : : : : : : : : :

C.A. No. 06-349 GMS

DEFENDANT CMS'S MOTION TO DISMISS PURSUANT TO 18 DEL. C. § 6853 Defendant Correctional Medical Services, Inc. ("CMS"), by and through its undersigned counsel of record, hereby moves for entry of an Order in the form attached hereto dismissing with prejudice Plaintiff's claims for medical negligence. In support of its motion, CMS states as follows: Facts and Procedural Posture 1. On May 22, 2006, Plaintiff initiated the above-captioned action by filing his Complaint

alleging he was "overmedicated" as a result of medical negligence (D.I. 2). Plaintiff failed to file with his Complaint an affidavit of merit as required by 18 Del. C. § 6853. 2. On August 6, 2006 Plaintiff filed his Petition for Memorandum of Law, again alleging

medical negligence resulting from overmedication, but filed no affidavit of merit with it (D.I. 10). 3. On January 3, 2007, Plaintiff moved to Amend Pleading on Civil Complaint to add First

Correctional Medical, Inc. ("FCM") as a defendant (D.I. 17). On May 3, 2007, Plaintiff filed a second Amended Complaint against FCM alleging inadequate and improper medical care. (D.I.

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22) No affidavit of merit was filed with either pleading. This Amended Complaint also requested the Court "strike" Plaintiff's "request for nominal and special damages on the prayer for relief of the Complaint Memorandum of Law" (sic) (D.I. 22 at 2). On May 9, 2007, the Court granted that motion (D.I. 23). 4. On June 18, 2007, defendant CMS filed its Answer to the Complaint, the Petition for

Memorandum of Law and Amended Complaint (D.I. 26) denying, inter alia, any and all allegations of medical negligence and causation, and raising as a defense Plaintiff's failure timely to comply with 18 Del. C. § 6853 by not filing an affidavit of merit. 5. On August 1, 2007 the undersigned counsel received Plaintiff's latest filing, titled "An

Affidavit of Merit Pursuant to Del. Code Ann. Tit. §6853 to Dr. Maggie Bailey's Medical Malpractice for Being Negligent . . ." (D.I. 35) The second page of that document purports to be a notarized affidavit signed by Plaintiff and dated July 26, 2007. Its content simply sets forth some definitions of "malpractice" from New York law. Argument 6. Plaintiff's allegations of medical negligence must be dismissed for his failure timely

to file an affidavit of merit as required by 18 Del. C. §6853. His "Affidavit of Merit" filed July 26, 2007 should be stricken as it does not comply with the requirements of section 6853. 7. 18 Del. C. § 6853 provides, in relevant part: No healthcare negligence lawsuit shall be filed in the State unless the Complaint is accompanied by: (1) an affidavit of merit as to each defendant signed by an expert witness, as defined in §6854 of this title and accompanied by a a current curriculum vitae of the witness stating that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant. If the required affidavit does not accompany the complaint or if a motion to extend the time to file said affidavit as permitted by paragraph (2) of this subsection has not been filed with the court, then the

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Prothonotary or clerk of the court shall refuse to file the Complaint and it shall not be docketed with the court. The affidavit of merit and curriculum vitae shall be filed with the court in a sealed envelope which envelope shall state on its face . . . 8. Plaintiff did not file any affidavit of merit until more than one year after his original

Complaint1. He has moved three times to amend his pleadings and none of those filings included an affidavit of merit. In addition to not being timely filed, the affidavit of merit filed by the Plaintiff does not comply with 18 Del. C. § 6853. It was not made by a physician or other expert witness and does not specify the negligent acts complained of, identify a breach of the standard of care or causation of injury thereby. None of the acts complained of by Plaintiff qualifies for any of the exceptions set forth in § 6853(e). Accordingly, the "affidavit of merit" should be stricken and the Plaintiff's claims dismissed. See Buchanan v. Gay, 2006 WL 2709401

(Del.Super.) aff'd 2007 WL 1454884 (Del.) (Exhibit "A", "B"). WHEREFORE, for the foregoing reasons, CMS respectfully requests the Court dismiss with prejudice those portions of Plaintiff's Complaint, Petition for Memorandum of Law, Amended Complaint, Second Amended Complaint and Third Amended Complaint which allege medical negligence. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant CMS Date: August 2, 2007

If the Plaintiff has filed some other affidavit of merit under seal, as required by 18 Del. C. § 6853, then CMS respectfully requests the Court review the affidavit for sufficiency. 3

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CERTIFICATE OF SERVICE

I, James E. Drnec, hereby certify that on this date, I served on the parties below in the manner indicated, copies of the Defendant CMS's Motion to Dismiss.

VIA FIRST CLASS MAIL Mr. Thomas R. Miller #144108 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ James E. Drnec James E. Drnec Dated: August 2, 2007

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE THOMAS R. MILLER, Plaintiff, v. DR. MAGGIE BAILEY, CMS, and FIRST CORRECTIONAL MEDICAL, INC., Defendants. : : : : : : : : : : :

C.A. No. 06-349 GMS

ORDER AND NOW, this day of , 2007, the Court having considered

CMS's Motion to Dismiss Pursuant to 18 Del. C. § 6853, and all opposition thereto, it is hereby ordered that the Motion is GRANTED. All State law medical negligence claims in the abovecaptioned action are dismissed with prejudice.

The Honorable Gregory M. Sleet