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Verrastro v. Bayhospitalists, LLC

Supreme Court of Delaware

April 8, 2019

NICOLE B. VERRASTRO, as Surviving Daughter of Bridget E. Verrastro and Administratrix of the Estate of Bridget E. Verrastro, Plaintiff Below, Appellant,
BAYHOSPITALISTS, LLC, d/b/a Bayhealth Hospitalists, LLC, Defendant Below, Appellee.

          Submitted: January 16, 2019

          Court Below-Superior Court of the State of Delaware C.A. No. N14C-10-159

         Upon appeal from the Superior Court. REVERSED and REMANDED.

          Ben T. Castle, Esquire (argued) and Bruce L. Hudson, Esquire, Hudson & Castle Law, LLC, Wilmington, Delaware, for Appellant Nicole B. Verrastro.

          Gregory S. McKee, Esquire and Lauren C. McConnell, Esquire (argued), Wharton Levin Ehrmantraut & Klein, P.A., Wilmington, Delaware, for Appellee Bayhospitalists, LLC.

          Before STRINE, Chief Justice; VALIHURA, VAUGHN, SEITZ, and TRAYNOR, Justices, constituting the Court en Banc.


         Does the dismissal of a medical negligence claim against two physicians on statute-of-limitations grounds bar the prosecution of a timely filed claim based on the same underlying facts against the physicians' employer under the doctrine of respondeat superior? The Superior Court, relying on our decision in Greco v. University of Delaware, [1] ruled from the bench that the dismissal of the physicians effectively extinguished the claims against the physicians' employer and therefore entered summary judgment in the employer's favor.[2]

         The Superior Court correctly read Greco, and under Greco's teaching, the Superior Court's dismissal was proper. In this en banc decision, however, we conclude that Greco should be overruled to the extent that it held that, if a plaintiff has failed to sue the employee whose malpractice allegedly injured her within the statute of limitations, she is for that reason alone barred from suing the employer under principles of respondeat superior. Because in this case the plaintiff sued the employer in a timely manner, settled principles of law authorize the plaintiff to proceed against that employer. Although the plaintiff must of course prove her claim against the employer, including that the employee was negligent, the fact that she failed to sue the employee in a timely manner does not act to immunize the employer. Accordingly, we reverse the judgment of the Superior Court.

         I. BACKGROUND

         For the most part, the facts surrounding the medical negligence allegations are not germane to this appeal, but a brief summary of those facts follows.

         On August 12, 2012, Bridget Verrastro went to the emergency room at Milford Memorial Hospital complaining of breathing difficulties.[3] She was discharged later that day with an antibiotic prescription and with instructions to schedule an appointment with a thoracic surgeon.[4] Bridget's breathing difficulties worsened, however, and the next day she went to the emergency room of Kent General Hospital, which is part of the same hospital system as Milford Memorial. At Kent General, Bridget was examined and treated by Dr. Rebekah Boenerjous and Dr. Tricia Downing (the "Doctors"), employees of Appellee Bayhospitalists, LLC, which operates under the name of Bayhealth Hospitalists, LLC ("Bayhealth"). But despite the Doctors' efforts, Bridget's condition quickly worsened, and at 1:07 a.m. on August 14, 2012, Bridget was pronounced dead.[5] Kent General performed an autopsy on Bridget, and the examining physicians found a large "mediastinal mass," i.e., a tumor, within Bridget's chest.[6] That tumor, while composed in part of benign substances, constricted Bridget's breathing and blood flow and ultimately caused Bridget's fatal heart failure.[7]

         In October 2014, Nicole Verrastro, Bridget's daughter, acting as the personal representative of Bridget's estate, filed a medical negligence action against several healthcare providers, including the Doctors and Bayhealth. Verrastro's complaint alleged that the Doctors' failure to diagnose and treat the tumor caused her mother's suffering and death. Verrastro did not file the action within the two-year statute of limitations period ordinarily applicable to medical negligence actions. Instead, she attempted to toll the statute by sending Notices of Intent under 18 Del C. § 6856(4) to Bayhealth and the Doctors.[8]

         All three of the Notices were sent to Bayhealth's address. But unbeknownst to Verrastro, both of the Doctors had left the employ of Bayhealth, and the Notices to the Doctors went undelivered and were returned to Verrastro's counsel as undeliverable. Thus, Bayhealth received the Notice before the two-year statutory period had expired, but the Doctors did not.

         Despite the failed delivery of the Doctors' notices, when Verrastro filed her action on October 17, 2014-inarguably beyond the ordinary two-year statutory period but within the tolling 90-day period under 18 Del C. § 6856(4)-she named both Bayhealth and the Doctors as defendants. Not surprisingly, the Doctors moved to dismiss on the grounds that the complaint was barred by the two-year statute of limitations.[9] In September of 2015, the Superior Court granted the Doctors' motion. After the Doctors were dismissed, the suit then proceeded to discovery, which failed to produce evidence supporting a direct, non-vicarious claim against Bayhealth.

         After discovery, Bayhealth moved for summary judgment on the grounds that, because all claims against the Doctors had been dismissed, the vicarious claims against Bayhealth based on the doctrine of respondeat superior were no longer viable. The Superior Court, relying on our decision in Greco, granted Bayhealth's motion. This appeal followed.


         We review grants of summary judgment and questions of law de novo. [10]

         III. ANALYSIS

         The essence of the Superior Court's decision below and Bayhealth's response to Verrastro's contention on appeal-relying almost exclusively on Greco-is that, in a suit against an employer under the doctrine of respondeat superior, "a time bar against the individual [tortfeasor] employee accrues to the benefit of the employer."[11] For her part, Verrastro says that Bayhealth reads Greco too broadly and that settled respondeat superior law dictates a different result. Because the application of Greco was case-dispositive below and further because a portion of Greco's reasoning appears to be in tension with, if not contrary to, another precedent of this Court, Fields v. Synthetic Ropes, Inc., [12] we are compelled to re-examine Greco.

         A. General respondeat superior principles

         Under the "well entrenched doctrine of agency law"[13] known as respondeat superior, [14] "[a]n employer is subject to liability for torts committed by employees while acting within the scope of their employment."[15] In Fields, Chief Justice Wolcott explained the doctrine's rationale:

The liability thus imposed upon the employer arises by reason of the imputation of the negligence of the employee to his employer through application of the doctrine of respondeat superior. The foundation of the action against the employer is still negligence, even though liability for that negligence has been broadened to include the employer. The imposition of liability on the employer thus arises, not because the employee is liable personally for his conduct, but because the employer selected an employee who performed the employer's business negligently and caused an injury. As such, the imputation of negligence rests squarely upon, and is justified by, the culpability of the employee, not upon the circumstance of whether or not the employee may, himself, be held liable for his act.[16]

         Under this explication of the rule, the employer's liability hinges upon the employee's culpability[17]-as distinguished from the employee's liability.[18] Accordingly, in Fields, we held that an automobile driver's employer could be held liable for the employee-driver's negligence that resulted in injuries to the employee's wife despite the fact that the employee was immune from suit under the doctrine of interspousal immunity. Fields, it would seem, weighs heavily against the Superior Court's entry of summary judgment for Bayhealth in this case. But rather than applying Fields' rationale, the Superior Court followed what appears to be equally clear guidance from this Court in Greco pointing in the opposite direction. We therefore turn to that opinion.

         B. Greco v. University of Delaware

         In Greco, we held that "[i]f an employee, who is a licensed health care provider, is not liable to the plaintiff for medical negligence, neither is the employer."[19] Greco, a University of Delaware undergraduate student, had sued UD and one of its physicians after she received a prescription for an oral contraceptive that produced debilitating side effects, and a UD physician failed to instruct the student to stop taking the contraceptive even after the student complained of those side effects to the physician.[20] The suit was filed two years and twelve days after the UD physician had last rendered care to Greco. Therefore, after discovery, UD and the physician moved for summary judgment on the grounds that Greco's claim was time-barred.

         Greco conceded that the claims against the physician were barred by the two-year medical-negligence statute, but argued that, under Cole v. League for Planned Parenthood, [21] the claim against UD was subject to the general statute of limitations applicable to personal injury actions found in 10 Del. C. § 8119 because UD itself was not a licensed health care provider.[22] Although § 8119's limitations period was also two years, Greco contended that our interpretation of the discovery rule as applied to § 8119 rendered her claim timely.

         The Superior Court rejected Greco's argument and granted summary judgment in UD's favor, and we affirmed. We reasoned that on any vicarious liability claim, UD was protected by the same statute of limitations rule that applied to its employee.[23]

         We do not challenge Greco today to the extent that it stands for the straightforward proposition that, where the plaintiff first noticed an injury no later than December 8, 1987, a medical negligence suit filed on December 20, 1989 based on that injury without the benefit of any additional tolling is untimely. And if that is all Greco had said, it would not pertain to Verrastro's claims against Bayhealth, which were, after all, timely filed by virtue of § 6856's tolling provision. But that is not all we said. We turn now to a closer examination of Greco's rationale and how it has come into play here.

         Greco's analysis is grounded on the sound principle that "a viable cause of action against the employee for negligence is a condition precedent to imputing vicarious liability for such negligence to the employer pursuant to the theory of respondeat superior.[24] Greco's recognition of this principle was followed by equally sound statements of the rule:

Where the alleged basis for the liability of an employer is the negligence of an employee, the employer cannot be held liable unless the employee is shown to be liable. Hence, generally, if absence of culpability on the part of the employee to the injured person has been established by ...

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