IN THE SUPREME COURT OF THE STATE OF DELAWARE

CRYSTAL SMITH, §
§ No. 404, 2014
Plaintiff Below- §
Appellant, §
§
v. " Court Below—Superior Court

§ of the State of Delaware,
WALTER KOBASA, JR, MD. and § in and for New Castle County

CI-[RJSTIANA CARE HEALTH § CA. No. N14C-01-241
SYSTEM, §
§
Defendants Below- §
Appellees. §

Submitted: February 27, 2015
Decided: April 24, 2015

Before STRINE, Chief Justice, VALIHURA, and VAUGHN, Justices.
O R D E R

This 24‘h day of April 2015, upon consideration of the parties’ briefs
and the record on appeal, it appears to the Court that:

(l) The plaintiff-appellant, Crystal Smith (“Smith”), ﬁled this
appeal from three orders of the Superior Court, dated July 1, 2014, which
denied Smith’s second motion for an extension of time to ﬁle an Afﬁdavit of
Merit as to each defendant and granted the defendants-appellees’ respective
motions to dismiss Smith’s medical malpractice complaint for failure to ﬁle
the required Afﬁdavit in a timely manner. We ﬁnd no merit to the appeal.

Accordingly, we afﬁrm the Superior Court’sjudgment.

(2) On January 28, 2014, Smith, acting pro se, ﬁled a medical
malpractice complaint against Walter Kobasa, Jr., MD. (“Kobasa”), and
Christiana Care Health System (“CCHS”). Smith’s two-page complaint
alleged that the defendants were negligent for failing to perform a cesarean

section on January 28, 2012, which resulted in the death of her child in

utero. Her complaint was not accompanied by an Afﬁdavit of Merit as to

either defendant or a request for an extension of time to obtain the necessary
afﬁdavits.2

(3) CCHS ﬁled a motion to dismiss on February 19, 2014, which
Kobasa joined on March 4, 2014. The Superior Court held a hearing on the
motion to dismiss on March 28, 2014. The defendants argued that Smith’s
complaint did not comply with the statutory requirements and should not
have been accepted by the Prothonotary for docketing.3 Smith asserted that

she did not attach an Afﬁdavit of Merit to her complaint because the medical

' Smith reported to the hospital emergency room on January 28, 2012 when she was
thirty-eight weeks pregnant, but she was later released. During ofﬁce visits on January
30, 2012 and February 6, 2012, Kobasa examined Smith and recorded the presence of a
fetal heartbeat. During Smith’s ofﬁce visit on February 13, 2012, Kobasa recorded no
fetal heartbeat and referred Smith to the hospital.

2 DEL. CODE ANN. tit. 18, § 6853(a)(l) (Supp. 2014). Section 6853(a)(l) provides that no
medical negligence complaint shall be ﬁled unless it is accompanied by an afﬁdavit of
merit as to each defendant signed by an expert witness or a motion to the extend the time
for ﬁling the afﬁdavit.

3 Id. Section 6853(a)(l) further provides that= if the afﬁdavit or motion is not ﬁled with
the complaint, the clerk of the court “shall refuse to ﬁle the complaint and it shall not be
docketed with the court...”

records provided to her by the defendants (and by her previous attorney)
were incomplete and prevented several experts whom she contacted from
creating the necessary Afﬁdavit. At the conclusion of the hearing, the
Superior Court denied the defendants’ motions to dismiss, reasoning that
Smith was pro se and had alleged that incomplete records had frustrated her
attempts to obtain the Afﬁdavit of Merit. The court granted Smith 45 days
(or until May 12, 2014) to file the Afﬁdavit.

(4) On April 4, 2014, CCHS ﬁled a motion for reargument, arguing
that the Superior Court had overlooked case law supporting dismissal of
Smith’s complaint for failure to comply with the statutory requirements.4
Smith did not respond to the motion for reargument. Instead, on May 7,
2014, she ﬁled a motion requesting a further extension of time to obtain
certain medical records that she contended were necessary in order to ﬁle an
Afﬁdavit of Merit. The defendants opposed her request. The Superior
Court held a hearing on May 16, 2014. The judge ordered Kobasa to deliver
a copy of Smith’s medical records to the judge by May 19, 2014. The

Superior Court deferred any further ruling and rescheduled the hearing until

4 See Dislnmm v. Fucci, 32 A.3d 338, 344-45 (Del. 2011) (“From the plain language of
Section 6853, it is clear that where a party fails to ﬁle an Afﬁdavit of Merit with the
Superior Court, the Court will not entertain the cases").

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May 30, 2014, directing the defendants to be prepared to present information
about Smith’s (or her former counsel’s) record requests.

(5) At the May 30, 2014 hearing, Smith produced an Afﬁdavit of
Merit. The defendants renewed their motion to dismiss, arguing, among
other things, that Smith’s original explanation for failing to timely ﬁle the
Afﬁdavit was the lack of complete medical records, yet no additional
medical records had been provided to her and she was able to obtain the
Afﬁdavit anyway. Smith asserted that she had made several record requests
and that the records she ﬁrst received were different from the records she
received later. At the conclusion of the hearing, the Superior Court gave
Smith until June 6, 2014 to submit documentation supporting her contention
that the records she received from the defendants contained discrepancies.
The court also gave the defendants until June 13, 2014 to ﬁle new or revised
motions.

(6) Smith failed to submit any further documentation. CCl-lS ﬁled
a second motion to dismiss and a revised motion for reargument of the
Superior Court’s denial of its ﬁrst motion to dismiss. Smith did not respond
to either motion. On July 1, 2014, the Superior Court issued three different
orders. The ﬁrst order denied, mmc pro tzmc, Smith’s May 7lh request for a

further extension of time to ﬁle the Afﬁdavit of Merit. The second order

granted CCI-IS’s second motion to dismiss. The third order granted
Kobasa’s motion to dismiss. The Superior Court held that, despite affording
Smith considerable leniency to support her explanation for failing to ﬁle the
required Afﬁdavit of Merit in a timely manner, Smith was unable to
establish that her failure was due to her inability to obtain complete records
from the defendants. In fact, the court noted, the records that Smith initially
contended were incomplete were the same records that she later used to
obtain the untimely Afﬁdavit she submitted on May 30, 2014. The Superior
Court dismissed Smith’s complaint for failure to ﬁle her Afﬁdavit of Merit
in a timely manner. This appeal followed.

(7) After careful consideration of the parties’ briefs, the Court ﬁnds
no merit to Smith’s appeal. Section 6853(a)(l) of Title 18 of the Delaware
Code requires that “[n]o healthcare negligence lawsuit shall be filed in this
State unless the complaint is accompanied by...[a]n afﬁdavit of merit as to
each defendant signed by an expert witness....stating that there are
reasonable grounds to believe that there has been healthcare medical

negligence committed by each defendant.”5 Moreover, the statute directs

5 DEL. CODE ANN. tit. 18, § 6853(a)(l) (Supp. 2014). Under § 6853(e), the only
exceptions to the affidavit requirement, which are inapplicable in this case, are when the
alleged medical negligence involves: (i) a foreign body unintentionally left within the
patient following surgery; (ii) a ﬁre or explosion originating in a substance used in
treatment and occurring during the course of treatment; or (iii) a surgical procedure on
the wrong patient or wrong body part

that, if the required Afﬁdavit or a motion for extension of time does not
accompany the complaint, then “the Prothonotary or clerk of the court shall
refuse to ﬁle the complaint and it shall not be docketed with the court.”6

(8) Although this Court noted, under very different circumstances,
that the Superior Court has some discretion to accept an untimely Afﬁdavit
of Merit,7 we ﬁnd no abuse of the Superior Court’s discretion in refusing to
accept Smith’s untimely Afﬁdavit under the circumstances of this case. It is
undisputed that, when she ﬁled her complaint on January 28, 2014, Smith
did not include an Afﬁdavit of Merit as to either defendant, nor did she
include a motion to extend the time to ﬁle the Afﬁdavit. Even if Smith had
ﬁled a timely motion to extend the time to ﬁled the required Afﬁdavit,
Section 6853(a)(2) permits the Superior Court, for good cause shown, to
“grant a single 60-day extension.” Good cause under the statute includes,
but is not limited to, the inability to obtain relevant medical records for
expert review.8

(9) The Superior Court granted Smith one extension of time in this

case and gave her numerous opportunities to establish good cause for her

“ Id. § 6853(a)(1).

7 See Beckett v. Beebe Medical Cur, 897 A.2d 753, 757-58 (Del 2006) (holding that the
Superior Court had discretion to accept plaintiff’s untimely Afﬁdavit where plaintiff’s
counsel erroneously believed that the Afﬁdavit was not required because the Complaint
fell under the foreign body exception to the Afﬁdavit requirement).

“ DEL. Com: ANN. tit. [8, § 6853(a)(2) (Supp. 2014).

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inability to timely ﬁle the Afﬁdavit of Merit. Smith was unable to establish
any cause. Her pro se status does not excuse her failure to comply with the
statutory requirements and the Superior Court’s orders.9 Accordingly, we
find no abuse of the Superior Court’s discretion in denying Smith’s second
request for an extension of time, nor do we ﬁnd any error in the Superior

Court’s dismissal of Smith’s complaint.

NOW, THEREFORE, IT IS ORDERED that the judgment of the

Superior Court is AFFIRMED.

BY THE COURT:

Justice

