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Berry v. Connections Community Support Programs, Inc.

Superior Court of Delaware

December 5, 2019

BRYAN BERRY, Plaintiff,
v.
CONNECTIONS COMMUNITY SUPPORT PROGRAMS, INC., Defendant.

          Submitted: October 15, 2019

          On Defendant Connections Community Support Programs, Inc.'s Motion to Dismiss.

          Stephen A. Hampton, Esquire, and Anthony V. Panicola, Esquire, Grady and Hampton, LLC, Wilmington, Delaware, Attorneys for Plaintiff Bryan Berry.

          Dana Spring Monzo, Esquire, and Kelly E. Rowe, Esquire, White and Williams LLP, Wilmington, Delaware, Attorneys for Defendant Connections Community Support Programs, Inc.

          MEMORANDUM OPINION

          Richard R. Cooch, R.J.

         I. INTRODUCTION

         This is a medical malpractice action brought by Bryan Berry ("Plaintiff) against Connections Community Support Programs, Inc. ("Defendant") alleging a deviation from the applicable standards of care owed to Plaintiff during the October 17, 2016 to January 6, 2017 timeframe when he was in the custody of the Delaware Department of Correction ("DOC") and was provided medical care by Defendant. Plaintiff asserts that "[Defendant] is legally responsible for all actions of its employees and agents that breach applicable standards, causing [patients] harm, in the course of providing them health care"[1] and that "[t]he medical providers working for [Defendant] grossly deviated from the applicable standards"[2] in various ways when providing care to Plaintiff.[3] As a result of Defendant's deviation from the applicable standard of medical care, Plaintiff asserts that he suffered significant injury.[4]

         Defendant, moving to dismiss the complaint, argues that Plaintiff has failed to toll the statute of limitations via 18 Del. C. § 6856(4) by attempting to serve a "Notice of Intent to investigate" (hereinafter "Notice of Intent") on Defendant "several weeks past the applicable statute of limitations deadline"[5] on January 21, 2019.[6] Plaintiff responds by arguing that, by Defendant having actual notice of Plaintiffs claim in this matter when Defendant received Plaintiffs February 13, 2018 letter addressed to Defendant's Chief Executive Officer that put Defendant on notice of a possible future lawsuit, Plaintiff effectively satisfied the notice requirement in 18 Del. C. § 6856(4).[7]

         The issue is whether Plaintiff s earlier September 28, 2019 "Notice of Intent," which identified only one Defendant and generally described to the Defendant that Plaintiff had a possible cause of action against Defendant, complied with 18 Del. C. § 6856(4). Defendant has moved to dismiss Plaintiffs complaint as time-barred, pursuant to Superior Court Rule 12(b)(6). The validity of the Notice of Intent, under 18 Del. C. § 6856(4), is a threshold requirement that demands strict compliance.[8]

         This Court concludes that Plaintiff failed, in terms of "strict compliance" with 18 Del. C. § 6856(4), to toll the statute of limitations with a valid Notice of Intent in this matter. The Court thus GRANTS Defendant's motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6).

         II. FACTS AND PROCEDURAL HISTORY

         Plaintiff, at the time the alleged conduct occurred, was in the custody of the Delaware Department of Correction ("DOC"). He was held at Plummer Community Correctional Center and then at Howard R. Young Correctional Institution. The DOC had contracted with Defendant to provide medical care at its facilities. Defendant provided for medical staff to administer medical care at these facilities.

         On or about October 6, 2016, while Plaintiff was incarcerated, Plaintiff "was working on road crew and was trying to drag a large tree by pulling on one of its branches. The branch he was holding broke, which caused him to fall to the ground very hard."[9] The Plaintiff developed symptoms from this fall and sought medical attention on October 17, 2016.[10] Between the first time Plaintiff sought medical attention on October 17, 2016 and when Plaintiff was released from DOC custody on January 6, 2017, medical practitioners employed by Defendant examined Plaintiff but did not find a clear and consistent injury to Plaintiff.[11]

         On January 27, 2017, after being released from DOC custody, Plaintiff sought medical assistance and received a "MRI C-spine" scan which allegedly showed "[m]oderate degenerative discogenic disease at C5-C7 levels, including large central extruded disc with ligamenta flava infolding at C6-C7 causing severe spinal canal stenosis and cord compression, without intra-medullary signal. Moderate spinal canal, neural foraminal stenosis at C-5-C6 and encroachment of bilateral exiting C6 nerve roots."[12]

         On February 13, 2018, Plaintiffs counsel sent a "letter with enclosures" to the President and Chief Executive Officer of Defendant.[13] This "letter with enclosures" was apparently not sent by certified mail, contrary to the statutory requirement for a valid Notice of Intent and appears essentially intended to advise Defendant of a possible future lawsuit.

         On February 28, 2018, Defendant's counsel sent a letter to Plaintiffs counsel that confirmed receipt of the February 13, 2018 letter and requested Plaintiffs complete medical records. On September 28, 2018, Plaintiff sent a "Notice of Intent" to Defendant.

         On January 24, 2019, Plaintiff filed a complaint and asserted a claim of medical malpractice against Defendant. In response, on May 17, 2019, Defendant filed a Motion to Dismiss and argued that Plaintiffs claim is time-barred due to Plaintiffs failure to comply with 18 Del. C. § 6856 and must thus be dismissed pursuant to Delaware Superior Court Civil Rule 12(b)(6).

         On June 7, 2019, Plaintiff filed a Response to Defendant's Motion to Dismiss and argued that Defendant received actual notice of this claim through a letter sent by Plaintiffs counsel to the President and Chief Executive Officer of Connections on February 13, 2018 and that a certified notice of intent letter was delivered on September 28, 2018. Plaintiff argues, for purposes of 18 Del. C. § 6856(4), that Defendant had sufficient actual notice for purposes of the statutory notice requirement under IS Del. C. § 6856.[14]

         On June 18, 2019, Defendant filed a Reply Brief and maintained its position that the statute of limitations was not adequately tolled in this matter due to Plaintiffs non-compliance with the statutory notice requirement and thus this claim is time-barred.

         III. THE PARTIES' CONTENTIONS

         A. Defendant's Contentions

         Defendant's overarching contention is that Plaintiff did not toll the 18 Del. C. § 6856 because of his noncompliance with the statutory notice requirement of 18 Del. C. § 6856(4). Additionally, and in support of Defendant's contention that Plaintiff did not comply with 18 Del. C. § 6856(4), Defendant asserts the Plaintiffs September 28, 2018 Notice of Intent "fail[ed] to provide even the basic information" required by 18 Del. C. § 6856(4) and Verrastro. To counter Plaintiffs assertion that actual notice is sufficient for purposes of the statutory notice requirement in 18 Del. C. § 6856(4), Defendant asserts that, "[a]s set forth in Leatherbury, whether a defendant has actual knowledge of a claim is of no import in the face of statutory noncompliance"[15] and that "[t]he validity of the Notice of Intent to Investigate is a threshold requirement that demands strict compliance."[16] Thus, Defendant argues, "[w]ithout a valid Notice of Intent to Investigate, the statute of limitations [in this matter] expired, at the latest, on January 6, 2019. As a result, Plaintiffs Complaint is time-barred and must be dismissed accordingly."[17]

         B. Plaintiff's Contentions

         Plaintiff argues that, since Defendant had actual notice by Plaintiffs February 13, 2018 and September 28, 2018 letters regarding Plaintiffs claim against Defendant, the essence of 18 Del. C. § 6856(4) was properly complied with and thus Plaintiff tolled the statute of limitations in this matter. Plaintiff supports this contention by stating that "[t]he purpose of the notice requirement in 18 Del. C. § 6856([4]) is to give notice of claim to a defendant prior to the filing of suit so that defendant can try to resolve the claim without litigation should it determine that the claim was meritorious." (emphasis added).[18] Defendant ultimately argues that "Defendant's arguments are form over substance[.]"[19]

         IV. STANDARD OF REVIEW

         Upon a motion to dismiss under Superior Court Rule 12(b)(6), the Court "(i) accepts all well-pleaded factual allegations as true, (ii) accepts even vague allegations as well-pleaded if they give the opposing party notice of the claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) only dismisses a case where the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances."[20] However, the Court will "ignore conclusory allegations that lack specific supporting factual allegations."[21]

         A party raising a statute of limitations defense may do so in a motion to dismiss when the pleading itself shows that the action was not brought within the statutory period.[22] The Court accepts the allegations contained in the opposing party's pleading as true for purposes of such a motion.[23]

         The validity of the Notice of Intent, under 18 Del. C. § 6856(4), is a threshold requirement that demands strict compliance.[24]

         V. DISCUSSION

         A. 18 Del. C. ยง 6856(4) ...


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