IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BRYAN BERRY,
C.A. No. N19C-01-276 RRC

Plaintiff,
v.

CONNECTIONS COMMUNITY
SUPPORT PROGRAMS, INC.,

Nowe Neue” Nee Nee ee Nee” nee me” ee” ee” Ne”

Defendant.

Submitted: October 15, 2019
Decided: December 5, 2019

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

MEMORANDUM OPINION

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.

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”! and that “[t]he medical providers working
for [Defendant] grossly deviated from the applicable standards”? in various ways
when providing care to Plaintiff.? As a result of Defendant’s deviation from the
applicable standard of medical care, Plaintiff asserts that he suffered significant

injury.’

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’> on January 21,
2019.° Plaintiff responds by arguing that, by Defendant having actual notice of
Plaintiff's claim in this matter when Defendant received Plaintiff's 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).’

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 Plaintiff's complaint as time-barred,

 

'Pl.’s Compl. at { 6.

2 Id. at ¥ 44.

3 Id. at § 44(a)-(d).

4 Id. at J 45(a)-(e).

> Def.’s Mot. to Dismiss at §[ 3.

° Reference to this January 21, 2019 date of a “Notice of Intent” appears in the complaint, but
subsequently Plaintiff produced a September 28, 2018 “Notice of Intent” letter as the operative
Notice of Intent.

’Pl.’s Resp. to Def.’s Mot. to Dismiss at 74 5, 6.
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. ®

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.”? The Plaintiff developed symptoms from this fall and sought medical
attention on October 17, 2016.'° 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.'!

On January 27, 2017, after being released from DOC custody, Plaintiff sought
medical assistance and received a “MRI C-spine” scan which allegedly showed
“TmJoderate degenerative discogenic disease at C5-C7 levels, including large central

 

8 Farmer vy. Brosch, 8 A.3d 1139, 1143 (Del. 2010) (holding that “to toll the statute for the
extended 90 day period, a plaintiff need to strictly comply [with 18 Del. C. § 6856(4)]. That is,
he must send a [valid] Notice of Intent to investigate to each potential defendant(s) by certified
mail, return receipt requested, at the defendant(s’) regular place of business. Having done this, a
plaintiff will have effectively extended the limitations period by 90 days.”); see Leatherbury v.
Greenspun, 939 A.2d 1284, 1293 (Del. 2010) (finding certified mail requirement in “Notice of
Intent” statute “is not reasonably susceptible to different conclusions or interpretations” and
holding “strict compliance” with that provision is required to toll statute of limitations.); see also
Verrastro v. Bayhealth Medical Center, Inc., 119 A.3d 676 (Del. Super. 2015) (finding a Notice
of Intent satisfied the threshold requirements of 18 Del. C. § 6856(4), and setting forth suggested
contents of a valid Notice of Intent.).

? Pl.’s Compl. at J 11.

'0 7d. at J 12.

"Td. at Ff 12-32.
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.”

On February 13, 2018, Plaintiff's counsel sent a “letter with enclosures” to
the President and Chief Executive Officer of Defendant.'? 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 Plaintiff's counsel
that confirmed receipt of the February 13, 2018 letter and requested Plaintiff's
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 Plaintiff's claim is time-barred due to
Plaintiff's 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 Plaintiff's 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 18 Del. C. § 6856.'*

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
Plaintiff's non-compliance with the statutory notice requirement and thus this claim
is time-barred.

 

2 Id. at 937.
'3 P].’s Resp. to Def.’s Mot. to Dismiss at § 1.
4 Td. at 195, 6.
HI. 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 Plaintiff's
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 Plaintiff's 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”! and that “[t]he validity of the Notice of Intent to Investigate is a
threshold requirement that demands strict compliance.”!® Thus, Defendant argues,
“Twl]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, Plaintiff's Complaint
is time-barred and must be dismissed accordingly.”"’

B. Plaintiff's Contentions

Plaintiff argues that, since Defendant had actual notice by Plaintiff's February
13, 2018 and September 28, 2018 letters regarding Plaintiff's 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).'® Defendant ultimately argues that
“Defendant’s arguments are form over substance[.]”!?

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, (11) accepts even vague

 

'S Def.’s Reply Br. In Support of its Mot. to Dismiss at ¥ 14.
16 Id. at | 2.

7 Td. at 419-21.

18 PI.’s Resp. to Def.’s Mot. to Dismiss at { 5.

"Td at 6.
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.”*° However, the Court will “ignore
conclusory allegations that lack specific supporting factual allegations.’”?!

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.”? The Court accepts the allegations contained in the opposing
party's pleading as true for purposes of such a motion.”°

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

V. DISCUSSION
A. 18 Del. C. § 6856(4) requires strict compliance.

Under 18 Del. C. § 6856, parties seeking recovery of damages against a
health care provider for injuries arising out of medical negligence must initiate an
action for relief within two years of the date upon which such injury occurred.
Under this two-year statute of limitation for medical negligence, Plaintiff was
required to file his complaint before January 6, 2019. The statute permits the
limitations period to be tolled an additional 90 days, however, in certain
circumstances:

A plaintiff may toll the above statutes of limitations for a period of time up to 90
days from the applicable limitations contained in this section by sending a Notice
of Intent to investigate to each potential defendant or defendants by certified mail,
return receipt requested, at the defendant's or defendants’ regular place of
business. The notice shall state the name of the potential defendant or defendants,
the potential plaintiff and give a brief description of the issue being investigated

 

0 Turf Nation, Inc. v. UBU Sports, Inc., 2017 WL 4535970, at *5 (Del. Super. Ct. Oct. 11, 2017)
(citing Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 227 A.3d 531, 536
(Del. 2011)).

21 Td. (quoting Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998)).

22 Wilson v. Kirlin, 2011 WL 1465576, at *1 (Del. Super. Ct. Apr. 15, 2011); Brooks v. Savitch,
576 A.2d 1329, 1330 (Del. Super. Ct. 1989).

*3 Wilson, 2011 WL 1465576, at *1.

4 Farmer v. Brosch, 8 A.3d 1139, 1143 (Del. 2010); see also Leatherbury v. Greenspun, 939
A.2d 1284, 1293 (Del. 2010).
by plaintiffs counsel. The 90 days shall run from the last day of the applicable
statute of limitations contained in this section. The notice shall not be filed with
the court. If suit is filed after the applicable statute of limitations in this section,
but before the 90-day period in this section expires, a copy of the notice shall be
attached to the complaint to prove compliance with the statute of limitations.

Following such, under 18 Del. C. § 6856(4), a plaintiff can toll the
limitations period so long as the requirements for tolling are satisfied. This Court,
in Verrastro v. Bayhealth Medical Center, Inc., set forth several requirements
before a party can toll the limitations period mentioned above and suggested in a
footnote what a valid Notice of Intent could resemble.” First, Notices of Intent
shall be sent by certified mail, return receipt requested.” Next, the Notice of Intent
must “contain three elements: (1) the name of the potential defendant or
defendants; (2) the potential plaintiff; and (3) a brief description of the issue
plaintiffs counsel is investigating.”*” Since Plaintiff and Defendant primarily focus

 

25 Footnote 30 from Verrastro v. Bayhealth Medical Center, Inc. provides:

To ensure that a Notice of Intent more clearly complies with § 6856(4), wording
somewhat along the following lines might be appropriate (using this case as an
example):

To: [Potential Defendant Doctor or Practice]

This Notice of Intent to investigate is sent pursuant to 18 Del. C. § 6856(4) on
behalf of the Estate of Bridget E. Verrastro and Christopher Giery, as De Facto
Guardian and Next Best Friend of Bridget E. Verrastro's minor daughter, Nicole
Bae Verrastro.

We have been retained to investigate a claim or claims involving healthcare
medical negligence and wrongful death arising from Bridget E. Verrastro's
treatment on or about August 12-14, 2012 as a patient at Bayhealth Medical
Center, Inc—Milford Memorial and Kent General Hospitals. Bridget E.
Verrastro's Estate and Christopher Giery are the potential plaintiffs. [Potential
Defendant Doctor or Practice] is a potential defendant.We are investigating the
facts leading to Ms. Verrastro's death, and whether [Potential Defendant Doctor
or Practice] failed to provide proper healthcare for Ms. Verrastro and/or breached
the applicable standard of care.

This notice is sent via Certified U.S. Mail, Return Receipt Requested.

26 See Del. Code Ann. tit. 18, § 6856(4) (2014) (“A plaintiff may toll the above statutes of
limitations for a period of time up to 90 days from the applicable limitations contained in this
section by sending a Notice of Intent to investigate to each potential defendant or defendants by
certified mail, return receipt requested, at the defendant's or defendants' regular place of
business.”); see Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007)

27 Verrastro, 119 A.3d 676, 680 (Del. Super. 2015).
their contentions around the content of the Notice of Intent, this Court must
examine the content of the Notice of Intent in this matter.

B. Plaintiff's February 13, 2018 “Letter with Enclosures” is not a “Notice of
Intent” Letter. Plaintiff's September 28, 2018 “Notice of Intent” Letter was
deficient.**

Plaintiff argues that the September 28, 2018 Letter was the “Notice of
Intent” in this matter. 7? However, Plaintiff argues that the combination of the
earlier February 13, 2018 “letter with enclosures” sent by Plaintiff to Defendant
with the September 28, 2018 “Notice of Intent” provides all the information
Defendant’s counsel required to be put on notice in accordance with 18 Del. C.
6856(4).°° The Court must examine both the February 13, 2018 “letter with
enclosures” and September 28, 2018 “Notice of Intent.”

The February 13, 2018 “letter with enclosures,” apparently not sent by
certified mail, provides:

February 13, 2018

Connections Community Support Programs, Inc.
C/O Catherine Devancey McKay

3821 Lancaster Pike

Wilmington, DE 19805

RE: [Bryan Berry], DOB 06/03/1964, SBI # 00221236
Dear Mrs. McKay,

I have been retained to represent Bryan Berry who was a former inmate
at both Plummer Center and Howard Young Correctional Institution in October
2017. In early October Mr. [Berry] was on a work release job site when he fell
and injured his cervical spine. From October until he was released from prison on
January 6, 2017, Mr. [Berry] continually complained to the medical staff about
neurological injuries and that they were worsening over time. The medical staff

 

28 On July 1, 2019, at oral argument, Plaintiff’s counsel conceded that “perhaps maybe we should
have done more to point [the type of case this is] out to defendants in the [September 28, 2018]
notice [...][,]” “we potentially could have added more to [the Notice of Intent][,]” and “[mJaybe
technically it should be in there.” Tr. at pp. 9 (lines 17-19), 10 (line 1), and 15 (line 23).
However, Plaintiff's counsel also stated “[s]o I believe that we’ve made proper notice, I believe
that the defendant had notice of everything. You couldn’t get better notice, I don’t think, than
what they got [...].” Tr. at pp. 10 (lines 21-23), 11 (line 1).

2° Pl.’s Resp. to Def.’s Mot. to Dismiss at § 3.

30 Id. at 91.
assumed he was not hurt, especially physical therapist Sarah Clark who wrote
progress notes that were very dismissive of his complaints. Ms. Clark, the RN’s
and NP’s employed by Connections’ apparently can tell whether or not a patient
has a spinal cord injury simply by watching them walk in the hall. No need to
order expensive tests and/or send the patient to the ER or neurologist, all these
experts had to do was look at Mr. [Berry] to decide he wasn’t hurt. On several
occasions[,] the medical staff claimed Mr. [Berry] was referred to a neurologist,
however he was never seen by a neurologist during the four months leading up to
his release.

After his release Mr. [Berry], continued to have extensive neurological
problems related to the injuries he sustained when he fell on the work release job.
The pain became so bad that on January 26", he walked from his temporary
residence on Airport Road to the Christiana Medical Center where he was seen in
the emergency room. After Mr. [Berry] was examined and after numerous CT
scans and an MRI order were completed, the MRI disclosed that Mr. [Berry] had
significant spinal injuries, including: a “large central extruded disk with ligament
flava infolding at C6-C7 causing severe spinal canal stenosis and cord
compression, without intra-medullary signal...”.

When cervical spinal cord compression is not diagnosed it continues to
cause multiple neurological symptoms in various parts of the body, and when not
treated promptly results in permanent neurological damage. Mr. [Berry] now has
significant permanent neurological damage affecting his entire body that would
have been avoided if the Connections’ staff had treated Mr. [Berry] with the
common courtesy and respect to which all patients are entitled. Even those in
prison. The way Mr. [Berry] was treated was extremely unprofessional and came
nowhere close to meeting the appropriate standards of care.

I suggest that you have someone with authority to consider any claims
for damages made by Mr. [Berry] due to the malpractice of the Connections’
staff. Mr. [Berry] is entitled to compensation for the inexcusable and
disrespectful care by the Connections’ employees. If someone does not contact
me concerning Mr. [Berry’s] treatment, the only other option will be a suit for
medical malpractice, and probably civil rights violations as well. Enclosed you
will find a chronology of Mr. [Berry’s] medical ordeal along with medical
records on which the chronology is based. | await your response.

Very truly yours,

[Plaintiff's Counsel].

While some information required for a valid Notice of Intent might be found
in Plaintiff's “letter with enclosures,” Plaintiff never manifested his intention that
this “letter with enclosures” served as a Notice of Intent pursuant to 18 Del. C. §
6856(4). As a result, this “letter with enclosures” cannot be considered to operate
as a Notice of Intent either on its face or in conjunction with the September 28,
2018 “Notice of Intent.” Notably, the September 28, 2018 “Notice of Intent” letter
did not reference the February 13, 2018 “letter with enclosures.”
The Notice of Intent Plaintiff sent to Defendant on September 28, 2018 by
certified mail states:

Dear [Defendant’s Counsel]:

On behalf of [Bryan] Berry, I am sending you a Notice of Intent
to Investigate the medical care provided to Mr. Berry. I am sending this
notice pursuant to 18 Del. C. § 6856. There is reason to believe that the
treatment provided to Mr. Berry from early October 2017, until his
release from prison on January 6, 2017, by agents and employees of
Connections Community Support Programs, Inc., fell below the
applicable standards of care.

Sincerely yours,

[Plaintiff's Counsel].

There are two issues with this Notice of Intent. The first issue is that only
one defendant is actually named. There is ambiguity as to the identity of
Defendant’s “agents and employees” as referred to above. Plaintiff generally
describes other defendants through use of the language “agents and employees of
Connections [...]” but this is not sufficient to cover the first prong of the content
requirement, as set out in Verrastro, regarding Notices of Intent to Investigate in
the medical negligence context. The second and more significant issue is that
Plaintiff fails to provide even a brief description of the issue that Plaintiff is
investigating. Simply stating that treatment by Defendant’s agents and employees
fell below applicable standards of care is too brief and generalized for a party to be
truly on notice of the issues in a potential case. This is not “drafting imprecision”
that was allowed in Verrastro.

C. Plaintiff mistakenly argues that “the” purpose of 18 Del. C. § 6856(4) is to
allow cases to be potentially settled.

Plaintiff, in its Response to Defendant’s Motion to Dismiss, mistakenly
interprets the purpose of 18 Del. C. § 6856(4). According to Plaintiff, “[¢]he
purpose of the notice requirement in 18 Del C. § 6856(c) 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.”?! This
is not accurate. The Delaware General Assembly did note in the synopsis to House
Bill 310 that the ninety day “grace period” exists to “give plaintiffs an opportunity

 

3! Td. at | 5 (emphasis added).

10
to determine whether a potential claim has merit and will result in some lawsuits
that might otherwise be filed not being filed.”** Rather than permitting defendants
extra time in which to resolve claims without litigation which, as Defendant
responds, “may be a desirable effect of 18 Del. C. § 6856(4),” it is not the purpose
of the ninety day extension.*? The Delaware General Assembly intended this rule
to permit plaintiffs additional time to determine whether a meritorious claim in fact
exists.

VI. CONCLUSION

As a result of the deficiencies in his September 28, 2018 Notice of Intent,
Plaintiff has not fulfilled the requirements of 18 Del. C. § 6856(4) and, as a result,
did not toll the statute of limitations. Without tolling the statute of limitations in this
matter, Plaintiffs complaint cannot survive Defendant’s motion to dismiss.

Defendant’s motion to dismiss is GRANTED.

Richard R. Cooch, R.J.
cc: Prothonotary

 

32 HB. No. 310, 142nd Gen. Assem. (Del. 2003) (Synopsis); see also Leatherbury, 939 A.2d 1284,
1290.
33 Def.’s Reply Br. at J 16.

11
