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Enhaili v. Patterson

Superior Court of Delaware

April 23, 2018

REDA A. ENHAILI, Plaintiff,
v.
J. DOUGLAS PATTERSON, M.D., DELAWARE ORTHOPAEDIC, and WILMINGTON HOSPITAL, Defendants.

          Submitted: March 12, 2018

         Upon Plaintiff's Request for a Third Extension of Time to File an Affidavit of Merit: DENIED.

         Upon Defendants' Motions to Dismiss the Complaint: GRANTED.

          Reda A. Enhaili, ID No. ND-2789, State Correctional Institution - Mahanoy, pro se Plaintiff.

          Bradley J. Goewert, Esquire and Lorenza A. Wolhar, Esquire, Marshall Dennehey Warner Coleman & Goggin, Attorneys for Defendants J. Douglas Patterson, M.D. and Delaware Orthopaedic.

          Ryan T. Keating, Esquire, Morris James LLP Attorney for Defendant

          OPINION

          JURDEN, P. J. JUDGE

          I. INTRODUCTION

         Plaintiff Reda A. Enhaili ("Enhaili") has filed pro se a medical negligence action pursuant to Chapter 68, Title 18 of the Delaware Code, against Defendants J. Douglas Patterson, M.D. ("Patterson"), Delaware Orthopaedic, and Wilmington Hospital (collectively, "Defendants"). Before the Court is Enhaili's request for a third extension of time to file an affidavit of merit, pursuant to 18 Del. C. § 6853(a)(1).[1] Also before the Court are Defendants' Motions to Dismiss the action based on Enhaili's failure to file an affidavit of merit.[2] For the reasons explained below, Enhaili's request for a third extension is DENIED, and Defendants' Motions to Dismiss are GRANTED

         II. FACTS

         A. Background

         The gist of Enhaili's Complaint is as follows. Enhaili was admitted to Wilmington Hospital on July 31, 2015 as a result of a MRS A infection in his left middle finger.[3] Patterson performed surgery on Enhaili's left middle finger to drain the infection.[4] Enhaili awoke after surgery "to a very painful and disfigured and swollen still infected finger."[5] According to Enhaili, Patterson cut a tendon in the left middle finger which caused the tip of that finger to be deformed, [6] and that surgery caused "major nerve damage" and arthritis.[7] Patterson advised Enhaili that once the infection cleared up, he would need to have a second surgery to reconnect the tendon.[8] Enhaili never underwent the second surgery. He alleges Patterson refused to perform the second surgery because Enhaili failed to pay for the first surgery and owed a cancellation fee for a missed post-operative visit with Patterson.[9]Enhaili alleges the Defendants' negligence has caused him severe pain, permanent scarring, disfigurement, disability, humiliation, severe anxiety, mental anguish, job loss, and other permanent injuries.[10]

         B. Procedural History

         On July 28, 2017, Enhaili filed his Complaint and a "Motion for Extension of Time" to file an affidavit of merit.[11] Pursuant to 18 Del. C. § 6853(a)(2), the Court granted a single 60-day extension to file an affidavit of merit.[12] Before that 60-day extension expired, Enhaili asked for a second extension of time to file an affidavit of merit, [13] advising the Court that he had been transferred to State Correctional Institution - Graterford ("SCI Graterford").[14] Enhaili claimed that his transfer to SCI Graterford led to his quarantine and, therefore, he had no access to legal resources.[15] In addition, he asked the Court to subpoena his medical records in connection with his finger surgery.[16]

         Before the Court could rule on his request for a second extension, Enhaili filed a submission that was sealed and labeled, "Confidential Subject to 18 Del. C. § 6853, The Contents of This Envelope May Only Be Viewed By a Judge of the Superior Court." This sealed submission was treated by Court staff as an affidavit of merit.[17]

         By Order dated November 21, 2017, the Court denied Enhaili's request for a second extension because 18 Del. C. § 6853(a)(2) expressly provides that the Court may grant only a single 60-day extension[18]

         On December 28, 2017, Patterson and Delaware Orthopaedic filed a joint "Motion for Review of the Affidavit of Merit" and Wilmington Hospital filed a "Motion to Determine if the Affidavit of Merit Complies with Sections (a)(1) and (c) of Title 18 § 6853."[19] In response, the Court conducted an in camera review of Enhaili's sealed submission and determined that it contained no affidavit of merit and no curriculum vitae as required by 18 Del. C. § 6853(a)(1) and (c).[20]

         Defendants then filed the instant Motions to Dismiss pursuant to Delaware Superior Court Civil Rule 12(b)(6).[21] On February 9, 2018, Enhaili requested a third extension, [22] which Defendants promptly opposed.[23] By letter dated March 12, 2018, Enhaili notified the Court that he had been transferred to State Correctional Institution - Mahanoy.[24]

         This Opinion resolves Enhaili's request for a third extension of time to file an affidavit of merit and Defendants' Motions to Dismiss.

         III. STANDARD OF REVIEW

         18 Del. C. § 6853(a)(1) provides that "[n]o health-care negligence lawsuit shall be filed in this State unless the complaint is accompanied by... [a]n affidavit of merit." This affidavit must be prepared by a board certified physician, practicing in the same field as the allegedly negligent party.[25] A plaintiff must file an affidavit of merit - signed by the preparer, along with her curriculum vitae - stating there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant, and including expert medical testimony detailing the applicable standard of care, the alleged deviation from the standard, and the causal link between the deviation and the alleged injury.[26] Without a proper affidavit, a complaint sounding in medical negligence is insufficient and the statute of limitations will not be tolled.[27]

         IV. DISCUSSION With regard to Enhaili's request for a third extension of time to file an affidavit of merit, [28] 18 Del. C. § 6853(a)(2) permits only a single 60-day extension for time of filing an affidavit of merit, and the Court previously granted Enhaili that extension.[29] Enhaili's request for a third extension of time is therefore DENIED,

         Defendants argue the Complaint must be dismissed with prejudice because Enhaili failed to file a signed affidavit of merit and curriculum vitae.[30]In response, Enhaili makes two arguments. First, he argues that a pro se plaintiff "should not be held to the same stringent standards as an [a]ttorney."[31] Second, he maintains that an affidavit of merit is not needed when the surgery "was performed on the wrong organ, limb, or body part [his left middle finger tendon]."[32]

         With regard to Enhaili's first argument, 18 Del. C. § 6853(a)(1) requires a plaintiff in a medical negligence action to file an affidavit of merit signed by an expert witness and that expert's curriculum vitae, together with the complaint. As noted earlier, the affidavit of merit must state that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant, [33] and include expert medical testimony detailing the applicable standard of care, the alleged deviation from the standard, and the causal link between the deviation and the alleged injury.[34] 18 Del. C. § 6853(a)(1) provides no exception for self-represented plaintiffs.[35]

          With regard to Enhaili's second argument, an affidavit of merit is not required if the complaint alleges one of three ...


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