IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STEVEN A. SIP_PLE, )
)

Plaintiff, ) C.A. No. N17C-1 1-290 VLM
)
V )
)
CONNECTIONS COMMUNITY )
SUPPORT PROGRAMS, INC., )
)
Defendant. )

MEM()RANDUM OPINION

Submitted: May 1 1, 2018
Decided: August 15, 2018

Upon Consideration of Defendant 's Motz'on to Dz'smiss, GRANTED.

Bruce L. Hudson, Esquire, of Hudson & Castle, LLC, of Wilmington, Delaware.
Attorneyfor Plaz'ntiff.

John D. Balaguer, Esquire, and Randall S. MacTough of White & Williams LLP, of
Wilmington, Delaware. Attorneysfor Defena'ant.

MEDINILLA, J.

INTRODUCTION

Former inmate Steven A. Sipple (“Plaintif`f”) brings a new claim for breach
of` contract that mirrors an earlier filed claim f`or medical negligence against
Defendant Connections Community Support Programs, lnc. (“Defendant”) for
personal injuries he claims he sustained While incarcerated at the Department of
Correction (“DOC”). Def`endant seeks dismissal of` the contract claim under
Superior Court Civil Rule 12(b)(6) f`or failure to state a claim. Plaintif`f maintains
that because he is a third-party beneficiary of a contract between DOC and
Defendant, he is entitled to proceed under both contract and medical negligence
theories of` liability. Af`ter consideration of` the parties’ briefings and oral arguments,

f`or the reasons stated beloW, Def`endant’s Motion to Dismiss is GRANTED.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff` first filed his medical negligence tort claim on May 10, 2017 (“Tort
Action”).l The Tort Action concerns the medical treatment that Plaintiff` received
While incarcerated from June 19, 2015 to April 18, 2017 at the James T. Vaughn
Correctional Center (“JTVCC”).2 The Complaint alleges that Plaintiff exhibited

symptoms consistent With colorectal cancer While incarcerated and that Def`endant

 

1 compi, Trans. I.D. 60583812,1\117€-05-157 vLM (“Ton Action”).

2 Am. Compl. Trans. I.D. 60589804, Tort Action at 1111 8, 36.

2

failed to provide necessary and timely care to adequately treat and diagnose his
condition, thereby breaching the standard of care.3 Plaintiff claims that Defendant
breached the standards established by many organizations, including the National
Commission on Correctional Health Care (“NCCHC”), the American Correctional
Association (“ACA”), and the DOC’s Bureau of Correctional Healthcare Services.4
Approximately three months after he filed his Tort Action, Plaintiff filed a Motion
to Submit Second Amended Complaint, seeking to add a claim for breach of contract
to his existing Tort Action.5

Defendant opposed Plaintiff’s request to amend the Tort Action to include a
claim for breach of contract and filed a response brief on September 6, 2017.6 Oral
arguments for the request to amend were heard on October 3, 2017. On November
17, 2017, the Court addressed issues regarding Plaintiff’s application to bring both
contract and medical negligence claims under one lawsuit where they appeared to
be based on the same alleged conduct by Defendant.7 Given the concerns raised by

the Court, coupled with Plaintiff’ s concession that his request to proceed on both

 

3 Ia'. at 1111 48~54.

4 Id. at 11 51.

5 Pl.’s Mot. to Submit Second Am. Compl., Trans. I.D. 61040536 in Tort Action.

6 Def.’s Resp. to Pl.’s Mot. to Submit Second Am. Compl., Trans. I.D. 61075982 in Tort Action.

7 Follow-up Ltr. from Court, Trans. I.D. 61381429 in Tort Action,

3

claims was one of first impression, the parties elected to more fully brief the issues.
However, in a letter dated November 21, 2017, Plaintiff notified the Court of his
intent to instead file a separate contract claim and withdrew his application to amend
the Tort Action.8 Plaintiff then filed a separate Complaint alleging breach of contract
against Defendant on November 30, 2017 (“Contract Action”).9

The Contract Action alleges that Defendant was responsible for providing
health care services to all inmates at JTVCC, including Plaintiff, through a contract
with DOC.'O This responsibility stems from a March 6, 2014 Contract (“Contract”)
between DOC and Defendant to which Plaintiff alleges he is an intended third-party
beneficiary.ll Plaintiff’ s claim highlights certain clauses in the Contract between
Defendant and DOC, as well as other documents incorporated by reference as
material terms and promises.]2 Plaintiff alleges that Defendant failed to perform its

duties and obligations under the Contract and that Plaintiff was injured as a direct

 

8 Ltr. re: Pl.’s Breach of Contract Claim, Trans. I.D. 61387028 in Tort Action.
9 Compl. for Breach of Contract, Trans. I.D. 61410529, N17C-11-290 VLM (“Contract Action”).

‘Old. arm 6,48.

ll Ia’. at 1111 48-50; Health Care Services Contract (hereinafter the “Contract”), Compl. for Breach
of Contract, Contract Action at Ex. C.

12 Compl. for Breach of Contract, Contract Action at 1[11 50-58. Other documents incorporated by

reference include Defendant’s Response to the Request for Proposals (“RFPS”) executed during
the bidding process between DOC and Defendant. See id. at 111 56, 58.

4

and proximate result of certain alleged contractual breaches.13 Among the material
terms is adherence to the standards established by the NCCHC, the AHA, and the
DOC’s Bureau of Correctional Healthcare Services,'4 the same organizational
standards previously identified in the Tort Action.

On March 8, 2018, just as it had opposed Plaintiff’ s request to amend the Tort
Action, Defendant filed this Motion to Dismiss the separate Contract Action.
Plaintiff filed a Response and Brief in Opposition on March 22, 2018, and Defendant
filed a Reply on March 28, 2018. Oral arguments were heard on May 11, 2018.
Having considered all submissions and the arguments of counsel, the matter is ripe

for review.
Contentions of the Parties

Defendant argues that where Plaintiff claims he suffered personal injuries
related to the provision of` health care services during his incarceration, the Medical
Negligence Act controls and precludes his separate contract claim.15 Defendant
argues dismissal under Rule 12(b)(6) is warranted because under the Medical

Negligence Act, contract claims are only viable if there is a promise of specific care

 

13 ld. at 1111 60_61.
141¢1. am 57.

'5 Def.’s Opening Br. at 8-9.

or result made by the healthcare provider.16 Where no such evidence exists in this
case, Defendant argues Plaintiff fails to establish a separate contract claim under the
Medical Negligence Act. Defendant further asserts that Plaintiff` s Contract Action
would also not be cognizable under common law, regardless of the Medical
Negligence Act, where Plaintiff has not alleged independent duties in his breach of
contract claims that are distinct and separate from his already existing medical
negligence claims.17 Lastly, Defendant argues that to allow the Contract Action to
proceed in this context threatens to dramatically expand the scope of Delaware’s
medical negligence scheme and warns of the dangers of such an expansion.18
Plaintiff counters that as an intended third-party beneficiary of the Contract
between DOC and Defendant, he is entitled to sue for breach of contract under
Delaware law.19 Claiming further that contract claims, in general, are expressly
authorized by the Medical Negligence Act,20 he argues that the tort and contract

claims could establish separate legal theories, do not contain identical facts, and may

 

|6 Id. at 9-16.

wld. at 16-17.

18 Id. at 17~19.

19 Pl.’s Resp. at 2-3.

20 Id. at 3-4.

entitle him to assert a stronger claim for punitive damages.z' Finally, Plaintiff
perseverates_contrary to this Court’s prior concerns_-in seeking both tort and
contract claims be tried before one jury.22
STANDARD OF REVIEW

For purposes of a motion to dismiss for failure to state a claim under Superior
Court Civil Rule l2(b)(6), all well-pleaded allegations in the complaint must be
accepted as true.23 Even vague allegations are considered well-pleaded if they give
the opposing party notice of a claim.24 The Court must draw all reasonable
inferences in favor of the non-moving party;25 however, it will not “accept
conclusory allegations unsupported by specific facts,” nor will it “draw unreasonable
inferences in favor of the non-moving party.”26 Dismissal of a complaint under Rule
12(b)(6) must be denied if the plaintiff could recover under “any reasonably

conceivable set of circumstances susceptible of proof under the complaint.”27

 

21 Id. at 4-9.
22 Id. at 9_10.
23 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).

24 In re Gen. Motors (Hughes) S ’holder Litig., 897 A.2d 162, 168 (Del. 2006) (quoting Savor, Inc.
v. FMR COFp., 812 A.2d 894, 896-97 (Del. 2002)).

25 Id
26 Price v. E.I. DuPont de Nemours & C0. , 26 A.3d 162, 166 (Del. 2011) (internal citation omitted).

27 Spence, 396 A.2d at 968 (citing Klein v. Sunbeam Corp., 94 A.2d 385, 391 (Del. 1952)).
7

However, dismissal may be granted if it appears to a certainty that under no set of
facts which could be proved to support the claim asserted would the plaintiff be
entitled to relief.28
DISCUSSION

Plaintiff does not argue that his breach of contract claim falls outside the
purview of the Medical Negligence Act.29 He further concedes that his attempt to
bring this contract claim is one of first impression in Delaware. Unable to find any
Delaware authority in support of proceeding with parallel claims in tort and contract,
Plaintiff instead relies upon other jurisdictions that have generally accepted that
inmates, as intended third-party beneficiaries, could pursue contract claims based on
certain contracts between outside contractors and departmental correction
agencies30

The cases cited by Plaintiff, with the exception of Ogunde v. Prison Health

Ser'vices, Inc.,3l are distinguishable from the case at bar, as none implicate any

 

28 Klein, 94 A.2d at 391 (Del. 1952).

29 18 Del. C. § 6801 et seq.

30 Pl.’s Resp. at 2 (citing Miller v. Corrections Corp. of America Cenlral Arizona, 239 Fed. Appx.
396 (9th Cir. 2007); Cherry v. Crow, 845 F. Supp. 1520 (M.D. Fl. 1994); Rathke v. Correctz'ons
Corp. ofAmerz'ca, 153 P.3d 303 (Alaska 2007); Oguna'e v. Prison Health Services, lnc. , 645 S.E.2d
520 (Va. 2007)).

31 645 S.E.2d 520 (Va. 2007).

medical negligence or medical malpractice schemes.32 Although Plaintiff could not
provide additional procedural information regarding Ogunde, the Supreme Court of
Virginia appeared to allow an inmate to proceed with simultaneous claims for breach
of contract and medical negligence predicated upon the same conduct.33 At the very
least, Ogunde suggests that there existed a cognizable claim to withstand a motion
to dismiss and allow for discovery,34 absent some other bar. Assuming, for purposes
of this motion, that Plaintiff may be considered an intended third-party beneficiary
to this Contract, Delaware’s medical negligence scheme differs from that of Virginia
in Ogunde.35 In other words, Defendant must address his claim under Delaware’s

medical negligence statutory framework.

 

32 See Mz'ller, 239 Fed. Appx. at 396-97 (holding that an inmate had a viable breach of contract
claim against state corrections contractor in light of the holding in Ralhke); Cherry, 845 F. Supp.
at 1523 (denying motion to dismiss breach of contract in in suit brought by inmate against a state
corrections contractor, where there was an existing general negligence claim); Rathke, 153 P.3d at
311 (holding that an inmate had third party beneficiary status under a contract between the state
and a corrections contractor because of a Final Settlement Agreement in a class action by Alaska
state prisoners challenging conditions in state prisons).

33 Ogunde v. Pris`on Health Services, lnc., 645 S.E.2d 520, 523 (Va. 2007).

34 Id. at 523-27 (the Supreme Court of Virginia found that the trial court had erred in dismissing
plaintiffs claims for medical malpractice and breach of contract).

35 See Va. Code Ann. §§ 8.01-581.1 et seq.

T he Medical Negligence Act

Medical negligence is defined under the Act as “any tort or breach of contract
based on health care or professional services rendered, or which should have been
rendered, by a health-care provider to a patient.”36 The crux of Plaintiff’ s Tort
Action relates to the provision of medical care and alleged insufficiencies of that
care. The Tort Action’s Amended Complaint contains three counts: medical
negligence, vicarious liability of Defendant, and corporate negligence37 Plaintiff’s
prayer for relief under the medical negligence count includes the request for punitive
damages.38 Plaintiff alleges that Defendant’s employees and agents “were negligent
and violated the applicable standard of care.”39 Specifically, Defendant “violated
the applicable community medical standards and standards set” by several different
organizations, including the DOC Bureau of Correctional Health Care Services, the

NCCHC, and the ACA.40

 

36 18 Del. C. § 6801(7) (emphasis added). A “health-care provider” is further defined as “a person,
corporation, facility or institution licensed by this State . . . to provide health-care or professional
services or any officers, employees or agents thereof acting within the scope of their employment
. . .” 18 Del. C. § 6801(5).

37 Am. Compl. in Tort Action.

38 Ia’. at 11 54.

39 Ia'. at 11 49.

401¢1.at1151.

10

Similar claims are found in the Contract Action. That Complaint contains
only two counts: the first for breach of contract and the second also for punitive
damages.4l For the breach of contract claim, Plaintiff alleges that he “suffered
injuries and damages as the direct and proximate result of Defendant’s breach of the
Contract by its failure to perform duties and obligations and meet standards intended
t0 safeguard offenders’ medical well-being which include the following . . . .”42
Plaintiff then lists several standards or policies, including the same DOC policies,
Covenants from Defendant’s Proposal in Response to DOC’s Request for Proposals,
and the ACA and NCCHC standards.43 Plaintiff does not allege that any promises
for a specific result were made to him while incarcerated Instead, he alleges that
the promises to provide specific services were made to DOC by Defendant, and that
Defendant breached the contract to provide such services to the detriment of
Plaintiff.

Plaintiff is correct that the Medical Negligence Act, by its own terms, allows

for contract claims generally. The Act’s definition section clearly contemplates such

claims.44 But the pertinent questions here concern what is required to bring a

 

44 Compl. in Contract Action.
42 Id. at 11 60 (emphasis added).

43 Id. at 1111 60(a)-(d). The Covenants include adherence to multiple sets of standards set by several
organizations, including the NCCHC, the AHA, and the DOC. See id. at 11 60(b)(xiv).

44 18 Del. C. §§ 6801(7), (9).
l l

contract claim under the Medical Negligence Act and whether such a claim can
simultaneously exist with a medical negligence tort claim. Relevant to this ruling,
the Court looks to portions of the Medical Negligence Act that speak to breaches of

contract.

Two sections of Chapter 68 mention a “breach of contract,” including the
aforementioned definition section. The other is 18 Del. C. § 6851. That Section

Stat€S I

No liability shall be imposed upon any health-care provider on the basis
of an alleged breach of contract, express or implied, assuring results to
be obtained from undertaking or not undertaking any diagnostic or
therapeutic procedure in the course of health care, unless such contract
is set forth in writing and signed by such health-care provider or by an
authorized agent of such health-care provider.45

Defendant asserts that 18 Del. C. § 6851 codified common law provisions that
recognized breach of contract claims in the medical care context only where the

healthcare professional\:promises a specific result.46 ln Delaware, prior case law

 

4518 Del. C. §6851.

46 Def.’s Opening Br. at 10-11 (citing McKinney v. Nash, 120 Cal. App. 3d 428, 442 (Cal. Ct.
App. 1981); Nadaf-Rahrov v. Regents of the Univ. of Cal., 2015 Cal. Super. LEXIS 11962, at *1-
2 (Cal. Super. Ct. Nov. 6, 2015); Coleman v. Garrison, 349 A.2d 8, 11 (Del. 1975); Scarzella v.
Saxo.n, 436 A.2d 358, 361 (D.C. 1981); 43 A.L.R.3d 1221; 61 Am. Jur.2d Physicians, Surgeons,
and Other Healers § 135). See also Heneberry v. Pharoan, 158 A.3d 1087, 1097 (Md. Ct. Spec.
App. 2017).

12

predating the Medical Negligence Act additionally held that such a warranty or
guarantee had to be supported by consideration.47

In 1993, the District Court of Delaware was asked to interpret the breadth of
18 Del C. § 6851 in the context of an implied contract. ln Miller v. Spicer,48 the
District Court held that claims for breaches of an implied contract are not cognizable
under the Medical Negligence Act.49 Although that is not the specific question here,
that ruling is instructive regarding the interpretation of § 6851. The District Court
interpreted 18 Del C. § 6851 as “negat[ing] a breach of contract claim in the absence
of a written contract only where a health care provider guarantees that a particular
result will be obtained through medical care.”5° The District Court found that “[t]he
statutory language specifically requires any limitation of liability to concern a
contract for services ‘assuring results to be obtained.”’51 Then, in concluding its
analysis of 18 Del C. § 6851, the District Court found that,

Chapter 68 purports to regulate malpractice actions based on breach of

contract; it specifically permits a breach of contract action where the
contract was one assuring results to be obtained so long as that contract

 

47 See Coleman, 349 A.2d at 11 (overruled in part on other grounds in Garrison by Garrison v.
Med. Ctr. of Del. lnc., 571 A.2d 786, 1989 WL 160433 (Del. Dec. 12, 1989) (TABLE)).

48 Miller v. Spicer, 822 F. Supp. 158 (D. Del. 1993).
49 Ia'. at 173.
50 ld, at 172.

51 Id. (quoting 18 Del C. § 6851).

13

was in writing; it does not specifically address whether a breach of
contract claim may be brought in other situations.52

Thus, the District Court employed basic tenants of statutory construction to discern
whether a claim for breach of an implied contract was cognizable under the Medical
Negligence Act, and held it was not. Here, this Court determines also that Plaintiff` s
breach of contract claim is not cognizable under the Medical Negligence Act.
Persuasive to its argument, Defendant cites to the Supreme Court of Nebraska
decision in Hitzemann v. Adam53 to assert that similar to 18 Del C. § 6851, Plaintiff
may only allege a breach of contract that assures a certain result or outcome.54 The
medical negligence scheme in Nebraska contains an almost identical passage to 18

Del. C. § 6851.55 ln Hitzemann, the plaintiff was to undergo both a procedure to

 

52 Id. (emphasis added).

53 518 N.W.2d 102 (Neb. 1994).

54 Def.’s Op. Br. at 11-12.

55 Section 44-2818 of Nebraska’s Hospital Medical Liability Act states:

No liability shall be imposed upon any health care provider on the basis of an alleged
breach of an express or implied contract assuring results to be obtained from any procedure
undertaken in the course of health care, unless such contract is expressly set forth in writing
and is signed by such health care provider or by an authorized agent of such health care
provider. Nothing in this section shall exempt any health care provider from the standard
of care in administering any procedure undertaken. Neb. Rev. Stat. § 44-2818.

This statute contains none of the commas present in 18 Del. C. § 6851 but is otherwise almost

identical. Section 44-2818 also contains an additional sentence concerning how this section does
not otherwise exempt providers from the standard of care.

14

remove ovarian cysts and then sterilization through tubal ligation.56 The plaintiff
sued her physician and hospital for both medical negligence and for breach of
contract after the doctor failed to perform the agreed upon sterilization procedure,

and the plaintiff subsequently became pregnant.57

The Supreme Court of Nebraska found that contract claims were restricted by
the terms of § 44-2818 of the Hospital Medical Liability Act. That Supreme Court
held the trial court properly found that the plaintiff could not sustain her breach of
contract claim because she “d[id] not allege a contract expressly set forth in writing,
signed by the defendants or their authorized agents regarding an express or implied
contract assuring the results to be obtained from the procedures undertaken by
[defendant doctor] in the health care of plaintiff.”58 The Supreme Court thus
interpreted § 44-2818 as delineating the requirements for the exclusive type of

breach of contract claim allowed in this area.

This Court is guided by the Hitzemann decision and the Supreme Court of
Nebraska’s interpretation of an almost identical statute to determine the scope of 18

Del C. § 6851 in the context of a contract claim. In doing so, it seems proper to also

 

55 Hitzemann, 518 N.W.2d at 203.
57 Id. at 203-204.

53 Id. at 206 (emphasis added). ln other words, the plaintiff was unable to sustain a breach of
contract claim in the medical negligence realm because her claim failed to meet the requirements
of § 44-2818.

15

consider this section fully in conjunction with the rest of Chapter 68 of Title 18. ln
Chapter 68, it is clear that the Medical Negligence Act was enacted with the purpose
of limiting the number of medical malpractice claims and the size of judgments,
thereby lowering the cost of medical malpractice insurance for healthcare providers

in this state. The preamble to Chapter 68 states:

WHEREAS, the number of suits and claims for damages both in
Delaware and throughout the Nation as well as the necessary costs of
defense and the size of judgments and settlements thereon, arising from
professional patient care have increased tremendously in the past
several years; and

WHEREAS, there has been a tremendous increase in the cost of
liability insurance coverage for health care providers in Delaware, and
in some instances the withdrawal of liability insurance companies from
the business of insuring health care providers in Delaware, endangering
the ability of the citizens of Delaware to continue to receive quality
health care as well as adequate and just compensation for negligent
injuries; and

WHEREAS, the General Assembly determines it is necessary to make
certain major modifications to its current legal system as it relates to
health care malpractice claims if the citizens of Delaware are to
continue to receive a high quality of health care while still assuring that
any person who has sustained bodily injury or death as a result of a tort
or breach of contract on the part of a health care provider resulting from
professional services rendered, or which should have been rendered,
can obtain a prompt determination of adjudication of that claim and
receive fair and reasonable compensation from financially responsible
health care providers who are able to insure their liability, under a
strictly construed fault principle as now, at a cost which is not
prohibitive and does not lead to the problems and practices described

16

above, while still maintaining Delaware’s overall legal system as to
health care malpractice claims except as modified by this legislation.59

The purpose of the Medical Negligence Act was clearly to limit or otherwise
curtail-_not expand-the ability of a patient to recover damages against healthcare
providers. ln doing so, it takes into account the possibility that a claim may be made
in tort or contract, with 18 Del C. § 6851 as prescribing the requirements by which
a separate contract action may be pursued. lt is illogical to suggest that the Act,
meant to curtail the liability of a healthcare provider, would now permit Plaintiff_
in the absence of any express language to do so_to pursue a contract claim not
previously cognizable at common law.

Even outside of the medical negligence realm, Delaware courts have generally
held that “[f]or both a breach-of contract claim and a tort claim to coexist in a single
action, ‘the plaintiff must allege that the defendant breached a duty that is
independent of the duties imposed by the contract.”’éo Delaware law does not permit

“a plaintiff to ‘bootstrap’ a breach of contract claim into a tort claim merely by

 

59 60 Del.LaWS 373 (1975).
60 EZLinks Golf LLC v. PCMS Dataj?t, Inc., 2017 WL 1312209, at *3 (Del. Super. Ct. Mar. 13,

2017) (quoting Brasby v. Morris, 2007 WL 949485, at *7 (Del. Super. Ct. Mar. 29, 2007) (citation
omitted)).

17

intoning the prima facie elements of the tort while telling the story of defendant’s
failure to perform under the contract.”61

Here, the Court allowed Plaintiff to pursue his separate breach of contract
claim where he proposed that the contract claim would plead different claims and
damages.62 Yet, Plaintiff concedes that his claim against Defendant is based on
allegations of failure to meet the standards of medical care, as provided in the
Contract, while incarcerated These are the same allegations of breaches in the
standard of care already pled in his Tort Action. Thus, the language of the Contract
Action substantially mirrors that of the Tort Action, and the allegations of
wrongdoing, in both tort and contract are identical in nature_that the lack of
medical care, and the failure to meet the standards of said care, caused Plaintiff’ s
injuries.

Also, Plaintiff’ s Contract Action alleges only general breaches of contract
occurred between DOC and Defendant. The Contract Action does not allege that
Defendant made promises of any specific medical care nor that Defendant made any

promises or assurances that any healthcare treatment would yield a specific result.

There is no claim that any promises or results to Plaintiff were memorialized in

 

64 Cornell Glasgow, LLC v. La Grange Props., LLC, 2012 WL 2106945, at *8 (Del. Super. Ct.
June 6, 2012) (citations omitted).

52 Pl.’s Resp. at 5-8.
18

writing. Again, PlaintifPs breach of contract claim is predicated upon the failure to
provide medical care to the same standards as constitute the standard of care in
Plaintiff"s medical negligence claim. Nothing different is claimed in the Contract
Action that would be presented to a jury that would not be presented through his
Tort Action.

Also, Plaintiff" s request for punitive damages is identical to the one he claims
in the Tort Action.63 Punitive damages on a breach of contract claim are only
available if there is bad faith rising to the level of an independent tort.64 Here,
Plaintiff concedes that the tortious conduct (i.e., the medical care rendered) forms
the basis of the contract claim. Thus, even if the Medical Negligence Act did not
apply, under common law principles, there is no independent conduct that Plaintiff
relies upon to argue for a separate and distinct award for punitive damages based on

breach of contract,

Plaintiff’ s argument that he may be able, through discovery, to pursue the

possibility of punitive damages as a result of the same tortious conduct to support

 

63 The Court notes that contrary to Plaintiff’ s assertions, he has already requested an award of
punitive damages on all claims in the Tort Action. Am. Compl. Trans. I.D. 605 89804, Tort Action
at 1111 54, 56, 64 [sic].

64 E.I. DuPont de Nemours & Co. v. Pressman, 679 A.2d 436, 445 (Del. 1996); Ripsom v. Blacktop,
lnc., 1988 WL 32071, at *17 (Del. Super. Ct. Apr. 6, 1988) (citing Reiver v. Murdoch & Walsh,
P.A., 625 F. Supp. 998, 1015 (D. Del. 1985); Smith v. New Castle County Vo-Tech Sch. Dist., 574
F. Supp. 813, 826 (D. Del. 1983); Oliver B. Cannon & Son, Inc. v. Fid. & Cas. Co., 484 F. Supp.
1375, 1387 (D. Del. 1980)).

19

his Contract Action lacks merit. This is especially so where he has already pled
punitive damages in his Tort Action. Where the breach of contract claim, at its root,
is duplicative of Plaintiff’s existing medical negligence claim, his attempt to seek
punitive damages is also redundant. Therefore, this Court finds that Plaintiff has not
alleged independent claims or damages in this Contract Action, nor established the

requirements to support his Contract Action under the Medical Negligence Act.

Finally, it bears repeating that this Court raised concerns when Plaintiff first
tried to amend his Tort Action to include the breach of contract claim. Although he
maintains that both the tort and contract claims should be presented to one jury, to
interject what may be admissible in a breach of contract case into structured
constraints set by the legislature under 18 Del C. § 6853 is akin to forcing a square
peg into a round hole. Had the contract claim been statutorily permitted under the
Medical Negligence Act, then the jury could have reconciled the duties of care owed
under different theories of liability and properly weighed the evidence as to
causation and damages as to each claim. For the reasons previously stated, the

contract claim cannot be brought under the Medical Negligence Act.

Moreover, bringing these claims simultaneously is not the greater of the two
evils. Rather, permitting the Contract Action to proceed independently is more
problematic where Plaintiff`s contract claims, based on identical allegations of

wrongful conduct by Defendant, circumvents key portions of the Medical
20

Negligence Act, including the expert requirements under 18 Del. C. §§ 6853 and
6854. Section 6853(a)(1) mandates that a plaintiff may not file an action for medical
negligence unless plaintiff provides an affidavit of merit in which an expert signs
and verifies that “there are reasonable grounds to believe that there has been health-
care medical negligence committed by each defendant.”65 Section 6853(e) dictates
that except in a few very narrow, specified circumstances, a plaintiff cannot prevail
in a medical negligence action unless there is expert testimony concerning both
standard of care and causation.66 Section 6854 further delineates the requirements
for experts who are able to testify.67 Allowing Plaintiff to proceed with his separate
contract action means he effectively bypasses the safeguards found in 18 Del. C. §§

6853 and 6854. This approach would allow future claims to be brought without first

 

65 18 Del. C. §6853(3)(1).

66 18 Del. C. § 6853. Section 6853(e) states:

No liability shall be based upon asserted negligence unless expert medical
testimony is presented as to the alleged deviation from the applicable standard of
care in the specific circumstances of the case and as to the causation of the alleged
personal injury or death except that such expert medical testimony shall not be
required if a malpractice review panel has found negligence to have occurred and
to have caused the alleged personal injury or death and the opinion of such panel is
admitted into evidence . . . .

67 18 Del. C. § 6854. Section 6854 states: “No person shall be competent to give expert medical

testimony as to applicable standards of skill and care unless such person is familiar with the degree
of skill ordinarily employed in the field of medicine on which he or she will testify.”

21

meeting the fundamental requirements found in medical negligence actions as set

forth by the Delaware legislature.

Following the spirit of the legislative intent of Title 18, Chapter 68, and the
language of 18 Del C. § 6851, which requires Plaintiff to establish that he contracted
with Defendant for a specific result or outcome, this Court finds that Plaintiff fails
to state a contract claim under Rule 12(b)(6) as it does not comport with the Medical
Negligence Act. Even in the light most favorable to Plaintiff and drawing all
reasonable inferences in favor of Plaintiff, there are no reasonably conceivable set
of facts which would entitle Plaintiff to relief under the Complaint. As Plaintiff has
not otherwise made any allegations that he contracted with Defendant for a specific
result or outcome_nor can he under the alleged facts_his breach of contract claim
must be dismissed Albeit through a separate filing, the Court remains reluctant to
open this Pandora’s box in the area of medical negligence where a tort claim against

a healthcare provider is restyled under the guise of a contract.

CONCLUSION
Under Rule 12(b)(6), Plaintiff" s breach of contract claim is dismissed for

failure to state a claim. For the foregoing reasons, Defendant’s Motion to Dismiss

22

is GRANTED. This ruling has no bearing on Plaintiff’s existing Tort Action.68

IT IS SO ORDERED.

 
    
 

/ Judge Vivian L. Medinilla

/
oc: Prothonotary

cc: All Counsel on Record (via e-filing)

 

63 Am. Compl. Trans. I.D. 60589804, Tort Action.
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