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Benson v. Mow

Superior Court of Delaware, Kent

December 4, 2014

REBECCA BENSON, Plaintiff,
v.
EDWIN M. MOW, D.P.M., Defendant.

Submitted: October 28, 2014

Upon Consideration of Defendant Edwin M. Mow's, D.P.M.

H. Cubbage Brown, Jr., Esquire, Brown Shiels & Beauregard, LLC, Dover, Delaware for Plaintiff.

Douglas T. Walsh, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin, Wilmington, Delaware for Defendant Edwin M. Mow, D.P.M.

James E. Drnec, Esquire, and Melony R. Anderson, Esquire, Balick & Balick, LLC, Wilmington, Delaware for Defendant Bayhealth Medical Center, Inc.

ORDER

Robert B. Young J.

SUMMARY

With respect to medical negligence actions, Delaware requires strict adherence to statutory requirements, meant to prevent the filing of lawsuits lacking merit. Chief among these protections is the necessity of attaching a statutorily qualified affidavit of merit to the Complaint. That affidavit must be prepared and executed by an expert, who must meet specific, enumerated qualifications. Included in those requirements is the need for the expert to be board certified. An additional protection afforded would-be medical malpractice defendants is the statute of limitations. The case at bar involves the intersection of these two Delaware safeguards.

Rebecca Benson, ("Plaintiff"), was operated on by Dr. Edwin Mow ("Defendant"), a podiatrist who sought to alleviate her two foot conditions. Dr. Mow allegedly performed a faulty procedure, that did not correct Plaintiff's ailments. Dissatisfied with the care she received, Plaintiff enlisted the services of another podiatrist. This podiatrist also performed surgery upon Plaintiff, which, according to Plaintiff, ameliorated her foot problems.

Seeking recourse against her first physician, the Defendant, Plaintiff filed a medical negligence suit against him. Significantly, this suit was filed just on the cusp of the statute of limitations period. Defendant, by his present Motion to Dismiss, attacks the validity of the affidavit of merit, attached to Plaintiff's Complaint. As per Defendant, the affidavit of merit was not executed by a board certified physician, as is required by the governing statute. The Court finds the Defendant's allegation to be correct. As such, the Complaint, filed on the day the statute of limitations expired, was non-compliant. This action is now time barred. Thus, Defendant's Motion to Dismiss is GRANTED.

FACTS AND PROCEDURES

On March 31, 2011, Plaintiff underwent a surgery performed by Defendant, to correct two foot conditions: (a) symptomatic right foot hallux valgus deformity with a metatarsal primus varus, deformity of the 1st metatarsal, and; (b) symptomatic 2ndhammertoe deformity. The surgery was performed at Bayhealth Medical Center, in Milford, Delaware. According to Defendant, the surgery aimed at alleviating the hammertoe was unsuccessful. After an additional five months under the care of Defendant, Plaintiff sought out the services of Dr. Harry S. Tam. On October 23, 2011, Plaintiff underwent an additional surgery, this time performed by Dr. Tam, which Plaintiff claims corrected the foot conditions Defendant's surgery had failed to resolve.

On March 31, 2013, Plaintiff filed the instant action, alleging medical negligence against Defendant and Bayhealth Medical Center, Inc. ("Bayhealth"). The date of the filing was the date on which the statute of limitations expired on Plaintiff's action.[1] Plaintiff's Complaint also lacked the required affidavit of merit. However, this Court granted Plaintiff's motion to extend time to file an affidavit of merit, and Plaintiff timely filed the required document on May 23, 2013. The affidavit was prepared and executed by Dr. Tam, who, according to the affidavit, was a board qualified physician, but not a board certified physician. The affidavit further indicated that Dr. Tam would be sitting for certification at a later date.

On August 15, 2013, service upon Defendant failed. The writ was returned to the Prothonotary. There is some disagreement between the parties, as to whether Plaintiff made further attempts to execute service upon Defendant. As per Plaintiff, service was unsuccessful due to Defendant's having changed his mailing address. On July 24, 20 14, th is Court granted Plaintiff's motion to extend time to serve Defendant. Defendant was served on September 3, 2014. In the meantime, on February 18, 2014, Bayhealth was dismissed from this action. This Court granted ...


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