     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

NICOLE B. VERRASTRO, as Surviving         )
Daughter of Bridget E. Verrastro, and     )
CHRISTOPHER GIERY as the Executor of the )
Estate of Bridget E. Verrastro,           )
                                          )
                              Plaintiffs, )
                                          )
      v.                                  ) C.A. N14C-10-159 PRW
                                          )
BAYHEALTH MEDICAL CENTER, INC.,           )
PAUL A. FEDALEN, M.D., BAYHEALTH          )
CARDIOVASCULAR SURGICAL                   )
ASSOCIATES, BRANDT J. FEUERSTEIN,         )
M.D., EDEN HILL SURGICAL GROUP, P.A., )
BRAIN J. WALSH, D.O., DOVER               )
PULMONARY, P.A., TRICIA DOWNING,          )
M.D., REBAKAH BOENERJOUS, M.D., and )
BAYHEALTH HOSPITALISTS, LLC, d/b/a )
BAYHOSPITALISTS, LLC,                     )
                                          )
                              Defendants. )

                         Submitted: June 17, 2015
                          Decided: July 24, 2015

                                OPINION

   Upon Defendants Paul A. Fedalen, M.D., Brandt J. Feuerstein, M.D., and
            Eden Hill Surgical Group, P.A.’s Motion to Dismiss,
                                DENIED.

     Upon Defendants Brian J. Walsh, D.O. and Dover Pulmonary, P.A.’s
                            Motion to Dismiss,
                                DENIED.
Ben T. Castle, Esquire, Hudson & Castle Law, LLC, Wilmington, Delaware,
Attorney for Plaintiffs.

John D. Balaguer, Esquire, Christine Kane, Esquire, White and Williams LLP,
Wilmington, Delaware, Attorneys for Defendants Paul A. Fedalen, M.D., Brandt J.
Feuerstein, M.D., and Eden Hill Surgical Group, P.A.

Bradley J. Geowert, Esquire, Lorenza A. Wolhar, Esquire, Marshall Dennehey
Warner Coleman & Goggin, Wilmington, Delaware, Attorneys for Defendants
Brian J. Walsh, D.O. and Dover Pulmonary, P.A.


WALLACE, J.




                                      -2-
   I.       INTRODUCTION

         This is an action for medical negligence and wrongful death. Plaintiffs,

Nicole B. Verrastro, as Surviving Daughter of Bridget E. Verrastro, and

Christopher Giery as the Executor of the Estate of Bridget E. Verrastro

(collectively, “Plaintiffs”), sent a Notice of Intent to Investigate (“Notice of

Intent”) to various doctors and medical practices pursuant to Title 18, section

6856(4) of the Delaware Code. Plaintiffs subsequently filed a Complaint against

multiple defendants outside of the two-year statute of limitations for medical

negligence and wrongful death, but within the 90-day tolling period provided in

§ 6856(4). Defendants Paul A. Fedalen, M.D., Brandt J. Feuerstein, M.D., Eden

Hill Surgical Group, P.A., Brian J. Walsh, D.O., and Dover Pulmonary, P.A.

(collectively, “Defendants”) now move to dismiss the claims against them on the

grounds that the Notices are deficient under § 6856(4) and therefore failed to toll

the statute of limitations. They argue Plaintiffs’ claims are thus time-barred. For

the reasons set forth below, Defendants’ Motions to Dismiss are DENIED.

   II.      FACTUAL AND PROCEDURAL BACKGROUND

         According to the Plaintiffs’ Complaint, Bridget E. Verrastro presented to

Defendant Bayhealth Medical Center, Inc.’s Milford Memorial Hospital

emergency department on August 12, 2012 for difficulty breathing and chest pain.




                                         -3-
While at the hospital, Ms. Verrastro allegedly saw Dr. Feuerstein and was told to

follow-up with Dr. Fedalen. She was discharged that day. The next morning, she

reported to Defendant Bayhealth’s Kent General Hospital’s emergency room,

allegedly at Dr. Fedalen’s direction, for shortness of breath. Ms. Verrastro was

admitted later that day. The Complaint further alleges Dr. Fedalen and Dr. Walsh

were involved in Ms. Verrastro’s treatment there. Ms. Verrastro died at Kent

General Hospital on August 14, 2012. Her primary cause of death was listed on

her death certificate as “cardiopulmonary arrest; mediastinal mass.”1

       On July 30, 2014, so as to toll the applicable two-year statute of limitations,

Plaintiffs sent a Notice of Intent to Investigate under 18 Del. C. § 6856(4)

(“Notice of Intent”) to: Brian J. Walsh, D.O., Dover Pulmonary, P.A., Eden Hill

Surgical Group, Brandt J. Feuerstein, M.D., Paul A. Fedalen, M.D., and others.

Plaintiffs then filed their Complaint against Defendants on October 17, 2014.

    III.   STANDARD OF REVIEW

       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. 2 The Court accepts the allegations contained in the opposing

1
       See Compl. ¶¶ 18-49.
2
       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).



                                           -4-
party’s pleading as true for purposes of such a motion.3

    IV.    DISCUSSION

       Under the two-year statute of limitations for medical negligence and

resulting wrongful death actions, 4 Plaintiffs were required to file their Complaint

by August 14, 2014—two years after the alleged date of injury resulting in death.

Plaintiffs did not do so until October 17, 2014. The statute permits the limitations

period to be tolled up to 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 by plaintiff’s
               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.5

3
       Wilson, 2011 WL 1464476, at *1.
4
        See DEL. CODE ANN. tit. 18, § 6856 (2014) (“No action for the recovery of damages upon
a claim against a health care provider for personal injury, including personal injury which results
in death, arising out of medical negligence shall be brought after the expiration of 2 years from
the date upon which such injury occurred. . .”).
5
       Id. § 6856(4) (emphasis added).



                                               -5-
      The Notices of Intent Plaintiffs sent to each potential defendant on July 30,

2014, in an effort to toll the statute of limitations for 90 days (i.e., to November 12,

2014), read:

                     NOTICE OF INTENT TO INVESTIGATE

               TO:          [Addressee Doctor or Practice]

               FROM:        [Plaintiffs’ Counsel]

                   RE: MEDICAL CARE AND TREATMENT
               OF BRIDGET E. VERRASTRO

                      I, [Plaintiffs’ Counsel], ON BEHALF OF THE
               ESTATE OF BRIDGET E. VERRASTRO AND
               CHRISOPHER GIERY as De Facto Guardian and
               Next Best Friend of Bridget E. Verrastro’s minor
               daughter NICOLE BAE VERRASTRO, hereby notify
               Bayhealth Medical Center, Inc. via Certified U.S. Mail,
               Return Receipt Requested, of Plaintiffs’ intent to
               investigate the facts leading to the death of Bridgett [sic]
               E. Verrastro, while she was a patient at Bayhealth
               Medical Center, Inc. – Milford Memorial and Kent
               General Hospitals, on or about August 12th through the
               14th, 2012. This notice is being sent pursuant to 18 Del.
               C. § 6856.6

Each Notice of Intent was addressed individually to each different doctor or

medical practice. But the body of each Notice of Intent was identical for each

Defendant.


6
      E.g., Ex. B to Defs. Brian J. Walsh, D.O. and Dover Pulmonary, P.A.’s Mot. to Dismiss.



                                            -6-
        Defendants here claim that, as to each of them, the Notice of Intent fails to

comply with § 6856(4) and therefore does not toll the statute of limitations. As a

result, Defendants contend, Plaintiffs’ October 17, 2014 Complaint against each of

them is time-barred.

            A. The Defendants Did Not Waive a Statute of Limitations Defense.

        The Court first considers whether Defendants have waived their right to

assert a statute of limitations defense by “their active participation in litigating the

merits of Plaintiffs’ Complaint.”7 Plaintiffs argue – but cite to no authority for –

this proposition.       Defendants claim they preserved their statute of limitations

defense by setting it forth as an affirmative defense in their answers to the

Complaint.8 Superior Court Rules of Civil Procedure 8(c) and 12(b) “require[] a

defendant to raise the defense of limitations either in a motion to dismiss or as an

affirmative defense in a responsive pleading.” 9 As the Delaware Supreme Court

7
      See Pls.’ Rsp. to Defs. Brian J. Walsh, D.O. and Dover Pulmonary, P.A.’s Mot. to
Dismiss, at 3-4.
8
       See Defs. Brandt J. Feuerstein, M.D. and Eden Hill Surgical Group, P.A.’s Ans. to Pls.’
Compl. ¶ 68 (setting forth second affirmative defense: “Plaintiffs’ claim may be barred by the
applicable statute of limitations”); Def. Paul A. Fedalen, M.D.’s Ans. to Pls.’ Compl. ¶ 68
(same); Defs. Brian Walsh, D.O., and Dover Pulmonary, P.A.’s Ans. to Pls.’ Compl. at 9 (second
affirmative defense: “Plaintiffs’ Complaint is barred by the applicable statute of limitations.”).
9
        Gadow v. Parker, 865 A.2d 515, 516 (Del. 2005); see also Del. Super. Ct. Civ. R. 8(c)
(“In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of
limitations . . .”); id. 12(b) (“Every defense, in law or fact, to a claim for relief in any pleading . .
. shall be asserted in the responsive pleading thereto if one is required. . . . No defense or
objection is waived by being joined with one or more other defenses or objections in a


                                                  -7-
has held, raising a statute of limitations defense in compliance with the procedural

rules does not waive that defense.10                 Defendants here have followed such

procedural requirements by raising a statute of limitations defense in their answers.

They did not waive that limitations defense by participating in litigation for the

intervening sixty-nine days before they filed the present motions to dismiss

grounded on a limitations defense.

           B. The Notices of Intent Contained the Necessary Elements to Toll
              the Statute of Limitations.

       Having found that the Defendants’ statute of limitations defense was

properly raised, the Court must determine whether the Notices of Intent Plaintiffs

sent on July 30, 2014 were sufficient under § 6856(4) to toll the limitations period.

       Section 6854(4) sets forth several requirements for tolling. First, the statute

unambiguously states that the Notices of Intent shall be sent by certified mail,

return receipt requested.11 Each Defendant agrees that Plaintiffs complied with


responsive pleading or motion. If a pleading sets forth a claim for relief to which an adverse
party is not required to serve a responsive pleading, the adverse party may assert at the trial any
defense in law or fact to that claim for relief.”).
10
       See Gadow, 865 A.2d at 520 (finding defendants who raised statute of limitations defense
in answer to original complaint, omitted the defense from an opposition to a motion for leave to
amend the complaint, and later reasserted it as grounds for a motion to dismiss the amended
complaint, did not waive their limitations defense).
11
        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


                                               -8-
that requirement. They argue, however, that as to each of them individually the

content of the Notice of Intent is insufficient to meet the § 6856(4) content

requirement. 12      But the statutory language is less clear as to the drafting

requirements for a proper Notice of Intent’s contents. Section 6856(4) simply

requires that a Notice of Intent contain three elements: (1) the name of the potential

defendant or defendants; (2) the potential plaintiff; and (3) a brief description of

the issue plaintiff’s counsel is investigating. 13

       Defendants argue only the strictest compliance with all of § 6856(4)’s

requirements will trigger the 90-day tolling provision.14 And upon reading only

the case law on the certified mailing requirement, Defendants’ argument has some

incipient appeal. But, as the Delaware Supreme Court observed, while the certified

mail provision of § 6856(4) requires strict compliance to toll the statute of


business.”); Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007) (finding certified mail
requirement “is not reasonably susceptible to different conclusions or interpretations” and
holding strict compliance with that provision is required to toll statute of limitations).
12
        See Defs. Brian J. Walsh, D.O. and Dover Pulmonary, P.A.’s Mot. to Dismiss at 4-5 (“. . .
the notice that was sent to Dr. Walsh and Dover Pulmonary, PA did not meet the statutory
requirements to put either defendant on notice of potential litigation against them, and toll the
statute of limitations.”); Defs. Paul A. Fedalen, M.D., Brandt J. Feuerstein, M.D., and Eden Hill
Surgical Group, P.A.’s Mot. to Dismiss at 3 (“. . . the notice did not state that the Plaintiffs were
investigating . . . [Dr. Fedalen, Dr. Feuerstein or] Eden Hill Surgical Group.”).
13
       § 6856(4).
14
        Defendants draw primarily from a Delaware Supreme Court case interpreting the
certified mail provision. See Leatherbury, 939 A.2d at 1292.



                                                -9-
limitations, the remaining provisions are “guidelines [that] must be followed,

[though] they do not mandate additional hoops a plaintiff must jump through

before he can toll the statute.” 15

       Section 6856(4)’s first and second sentences both mandate certain things

related to a Notice of Intent. The first sentence prescribes the mechanical act of

delivering the Notice of Intent via certified mail. Determining compliance with

this provision is facile, and there is no room for interpretation. In contrast, the

second sentence merely requires the presence of three elements. There is, inherent

in the art of legal drafting, more flexibility in crafting a document’s contents.

Recognizing this difference, the Court will analyze whether the Plaintiffs’ Notices

of Intent had the three required content elements.

       Here, the Court finds, and Defendants concede, that each Notice of Intent

lists the potential plaintiffs—thus, the second element is met. The Defendants

contend, however, that the first and third elements are absent. They claim it is

unclear from the Notice of Intent’s language that Plaintiffs “hereby notify

Bayhealth Medical Center, Inc.” – as opposed to the addressees – that they (the


15
       Farmer v. Brosch, 8 A.3d 1139, 1143 (Del. 2010) (interpreting provision requiring
Notice of Intent be attached to Complaint filed outside of 2-year statute of limitations but within
the 90-day tolling period). The Court further found that “[t]he attachment requirement is more
akin to a special rule of pleading that, if not followed, is subject to cure by filing a Motion to
Amend a faulty original complaint on the basis of the relation back doctrine.” Id.



                                               -10-
addressees) are being investigated.             Defendants further argue that failing to

mention the individual defendant within the body of the Notice of Intent creates

confusion as to what issue is being investigated.

         Plaintiffs argue that the purpose of the notice was fulfilled: the Defendants

were put on notice of the potential claims against them being investigated.

Plaintiffs further argue that the Defendants’ entry of appearance and engagement in

litigation evidences that they received fair notice of the claims.

         While made a more difficult call than it had to be due to the Plaintiffs’

drafting imprecision here, the Court finds that the Plaintiffs’ Notices of Intent have

the three required content elements. Each Notice of Intent states the intended

potential defendant as an addressee.16 Each Notice of Intent further states that the

investigation is into the “facts leading to the death of Bridgett [sic] E. Verrastro,

while she was a patient at Bayhealth Medical Center, Inc. – Milford Memorial and

Kent General Hospitals, on or about August 12th through the 14, 2012.”17 And

each concludes: “This notice is being sent pursuant to 18 Del. C. § 6856.”

         Defendants can hardly argue that they were completely unaware of why they

16
         See § 6856(4) (“The notice shall state the name of the potential defendant or defendants .
. .”).
17
        E.g., Ex. B to Def. Brian J. Walsh, D.O. and Dover Pulmonary, P.A.’s Mot. Dismiss. See
also § 6856(4) (“The notice shall . . . give a brief description of the issue being investigated by
plaintiff’s counsel.”).



                                               -11-
received the Notice of Intent—even if it could have been more concisely stated and

more artfully constructed. The Court therefore finds that the three minimally-

required content elements are present in the challenged Notices of Intent, even if

they are not drafted in the most clear and concise manner.18                  Accepting the

allegations contained in the Plaintiffs’ pleadings as true, the Court finds that the

matter was brought within the applicable (i.e., extended) limitations period.




18
     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.


                                            -12-
   V.      CONCLUSION

        Because the Court finds that each Notice of Intent here contains all of the

requisite content elements under 18 Del. C. § 6856(4) so as to toll the 2-year

statute of limitations, and because Plaintiffs’ Complaint was filed within that

tolling period, Defendants’ Motions to Dismiss are DENIED.

        IT IS SO ORDERED.


                                       /s/ Paul R. Wallace
                                       PAUL R. WALLACE, JUDGE
Original to Prothonotary
cc: All counsel via File and Serve




                                        -13-
