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Johnson v. Connections Community Support Programs Inc.

Superior Court of Delaware

September 29, 2017


          Submitted: June 30, 2017


          Calvin L. Scott, Jr., Judge

         Plaintiff, Marcus Johnson ("Plaintiff") filed a civil malpractice action against Jane Doe #1, Jane Doe #2, Cynthia Mallee, Jami Jones, Laura Brackett, Staci Collins-Young, Sharon Henderson, and Connections Community Support Programs, Inc., ("Defendants") on January 5, 2017. In his Complaint, Plaintiff alleges he is injured from the neglect of scheduling and/or re-scheduling of Plaintiff to see a doctor. Plaintiff claims that he has not received treatment for sleep apnea, sinus issues, and allergies. Plaintiff claims he filed a medical grievance on February 14, 2016, and "Jane Doe #1" scheduled an appointment that subsequently never occurred. Plaintiff states that he filed a second grievance on May 14, 2016, and "Jane Doe #2" scheduled an appointment, which subsequently did not occur. On August 3, 2016, Defendants Brackett, Collins-Young, and Henderson upheld Plaintiff's grievance and recommended treatment in a timely manner.

         Defendants filed a Motion to Dismiss on April 28, 2017. Defendants move to dismiss Plaintiff's Complaint on three grounds: (1) improper service; (2) failure to state a legal claim; and (3) improper jurisdiction. Plaintiff filed this case as a civil malpractice action. Plaintiff alleges that Defendants "knowingly, intentionally, unreasonably, and with deliberate indifference and/or neglect" failed to schedule an appointment or ensure Plaintiff was treated for his alleges illnesses. Defendants argue that Plaintiff's claims can most reasonably be construed as a claim for negligent administration or deliberate indifference to a serious medical need.

         A. Plaintiff's Claims against "Jane Doe #1" and "Jane Doe #2" fail as a matter of law.

         Delaware law is clear that "fictitious name practice is not permitted. This is because there is no statute or rule specifically authorizing fictitious name practice. Filing a claims against 'John Doe' has no legal effect in this State."[1] Plaintiff's claims against "Jane Doe #1" and "Jane Doe #2" are hereby dismissed. Not only does fictitious name practice have no legal effect, its "impossible to obtain services of process on a non-existent person."[2] Plaintiff's claims against Jane Doe #1 and Jane Doe #2 are therefore dismissed.

         B. To the extent that Plaintiff's claims are medical negligence claims, these claims are dismissed along with Plaintiff's claims for injunctive relief against all Defendants.

         Plaintiff's Complaint states that he "brings this action against the Defendants under title 18 Del. C. § 6801(4)" due to Defendants "negligence in administration, hiring, and oversight." Plaintiff also states: "Although I intend to bring healthcare medical negligence claims in the future, these present claims are ordinary negligence claims, pursuant to Del. C. Tit. 18 § 6801(4)." As this Court has held before, where a plaintiff seeks damages in a medical malpractice action, 18 Del. C. § 6853(a) requires that plaintiff submit an affidavit of merit with the complaint.[3] In Delaware, medical malpractice claims must be "supported by an affidavit of merit. In the affidavit of merit, an expert witness must state reasonable grounds to believe healthcare medical negligence was committed by each defendant."[4] There are three scenarios under Delaware law where the plaintiff is entitled to the rebuttable presumption of negligence, and therefore does not need the support of an affidavit of merit. This rebuttable presumption attaches to the following circumstances:

(1) A foreign object was unintentionally left within the body of the patient following surgery;
(2) An explosion or fire originating in a substance used in treatment occurred in the course of treatment; or
(3) A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of the patient's body.[5]

         As Plaintiff's claims do not fall within the above scenarios, and Plaintiff filed this action as a civil malpractice action with claims under Chapter 68 of Title 18, an affidavit of merit was required at the time the Complaint was filed. Additionally, Plaintiff seeks injunctive relief with respect to these claims against Defendants. This Court does not have the ability to grant Plaintiff injunctive relief.[6] Therefore Plaintiff's claims seeking injunctive relief are hereby dismissed.

         C. To the extent that Plaintiff plead negligent supervision and deliberate indifference in his Complaint, these claims fail as a matter of law.

         Defendant argues that Plaintiff's "negligent administration" claim is essentially a "negligent supervision" claim, and this claim is meritless. To the extent that Plaintiff's claim is a negligent supervision claim, Plaintiff has not presented evidence to support it. "An action for negligent supervision is based upon the employer's negligence in failing to exercise due care to protect third parties from the foreseeable tortious act of an employee."[7] Additionally, the "employer is liable for negligent hiring or supervision where the employer is negligent in giving improper or ambiguous orders or in failing to make proper regulations, or in the employment of improper persons, thus creating an unreasonable risk of harm to others."[8]Plaintiff's complaint lacks any evidence to support this contention. The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion to dismiss is whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.[9] In making its determination, the Court must accept all well-pleaded allegations in the complaint as true and draw all reasonable factual inferences in favor of ...

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