IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THOMAS M. BRADFORD,

Plaintiff, C. A. No. S17C-10-019 CAK
V.

BEEBE MEDICAL CENTER,
THOMAS M. CATHCART AND
JOYDEEP HALDAR,

Defendants.

Submitted: May 9, 2020
Decided: June 9, 2020

MEMORANDUM OPINION AND ORDER

Upon Defendant Beebe Medical
Center’s Motion to Dismiss on Statute of
Limitation Grounds - GRANTED

Upon Beebe Medical Center’s
Motion for Summary Judgment
Jor Failure to Provide Sufficient
Medical Expert Evidence - DENIED AS MOOT

Upon Haldar and Cathcart’s Motion
for Summary Judgment for Failure
to Provide Sufficient Medical Expert
Evidence - DENIED WITH CERTAIN CONDITIONS
Thomas Michael Bradford, self represented plaintiff, 6611 16" Street, NW,
Washington, DC 20012

Bradley J. Goewert, Esquire, Catherine M. Cramer, Esquire, Marshall Dennehey
Warmer Coleman & Goggin, 1007 N. Orange Street, Suite 600, P.O. Box 8888,
Wilmington, Delaware 19899-8888, Attorney for Defendant, Beebe Medical Center

John D. Balaguer, Esquire and Roopa Sabesan, Esquire, White and Williams LLP,

Courthouse Square, 600 N. King Street, Suite 800, Wilmington, Delaware 19801,
Attorney for Defendants, Joydeep Haldar, M.D. and Thomas M. Cathcart

KARSNITZ, J.
Thomas Bradford, a self represented litigant, filed a Complaint alleging
medical negligence on October 26, 2017. Generally, Bradford alleged medical
negligence by the Defendants in providing him medical care on July 29, 2015 and
July 30, 2015. Attached to the Complaint was a document he titled “Notice of
Intent to Investigate” dated July 20, 2017. The case proceeded through the
pleading and discovery stages with fits and starts common to cases involving self
represented litigants. Trial before a jury is currently scheduled for September 21,
2020.

Delaware State Police brought Plaintiff Bradford to Beebe Medical Center
emergency room in the early morning hours of July 29, 2015. Bradford was highly
intoxicated after an evening spent at the bars of the Rehoboth Beach area. Records
indicate that Bradford had an alcohol level of .276 g/DL.' Apparently, Plaintiff has
little recollection of what happened to him which resulted in his trip to the
emergency room. Plaintiff now claims he was assaulted. Defendants describe a
bar fight. Plaintiff alleges he complained of a shoulder injury which went untreated
and has now led to permanent damage to this right upper extremity. Despite settled

Delaware law prohibiting the ad damnum clause stating a particular amount,

 

'By comparison .08 g/DL is sufficient for presumption of driving under the influence of alcohol.

*Super Ct. Civil Rule. 9(g).
Plaintiff's Complaint request $19,000,000.00 in damages.

The Scheduling Order entered by the Court required Plaintiff to identify any
expert witnesses he had to prove his case and to produce any related reports by
May 8, 2019. Defendants had also filed typical discovery requests for the same
information. On May 3, 2019, Plaintiff provided to Defendants a list of medical
experts, including Christopher S. Raffo, M.D., as well as a few medical records.
Plaintiff provided no reports nor any summary of medical opinions.

Defendants in response filed a motion to compel production of expert
reports or appropriate disclosures in compliance with Delaware rules of discovery.
Plaintiff filed no substantive response to Defendant’s motion to compel and I
granted it on August 5, 2019. My order gave Plaintiff 45 days to provide adequate
expert disclosures or his Complaint would be dismissed. In September, 2019
Plaintiff provided to Defendants a report from Dr. Raffo. Dr. Raffo opined that
Defendants committed medical negligence if events occurred as described by Mr.
Bradford. Notably, Dr. Raffo qualified his opinions by indicating he had not
reviewed many of the medical records generated in Mr. Bradford’s case, including
the initial emergency room records, imaging studies, police or first responder
records, medical records from jail, or the subsequent medical records. Dr. Raffo

wrote: “If the events were not accurately described, then the finding of negligence

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would certainly be likely to change.”

Defendants sought to take Dr. Raffo’s deposition and it was scheduled for
December 9, 2019. Two days prior to the deposition it was cancelled by Dr.
Raffo’s office because he did not have records he needed to proceed with the
deposition.’ Apparently, Dr. Raffo did not believe he had the information he
needed to express opinions, and refused to go forward without the necessary
records.

PROCEDURAL POSTURE

As the case neared its trial date Defendants filed four motions. Defendant

Beebe filed the following:

1. A motion for partial summary judgment seeking dismissal of
claims for punitive damages.

2. A motion to dismiss claiming Plaintiffs complaint was filed
outside the applicable statute of limitations.

3, A motion for summary judgment claiming Plaintiff’s expert
evidence was insufficient.

Defendants Halder and Cathcart filed a motion for summary judgment parroting

Beebe’s motion listed as number three above.

 

*I requested Defendant Haldar’s counsel provide to me an affidavit detailing her
communications with Dr. Raffo’s office concerning the deposition. She filed the affidavit on May 29,
2020. Mr. Bradford asked for time to file an affidavit in support of his case. I gave him until June 2,
2020 to do so. Bradford has not filed an affidavit.

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I held oral argument telephonically on May 26, 2020. After argument
ended, I granted Beebe’s motion to dismiss claims for punitive damages for
reasons | stated on the record. In short, in my opinion, the facts alleged in the
Complaint and developed in discovery reviewed in the light most favorable to
Plaintiff support claims of negligence only, and not a claim for punitive damages.’
At oral argument I reserved decision as to the remaining motions. This opinion is
my resolution of those motions.

A WORD ABOUT SELF-REPRESENTED LITIGANTS
Delaware law applies two separate principles in analyzing cases involving
self-represented litigants. I have always viewed the two to be contradictory. A

quote from Colatriano v. Roman?’ illustrates the dilemma:

 

“See 18 Del. C. §6855 (“...punitive damages may be awarded only if it is found that the injury
complained of was maliciously intended or was the result of willful or wanton misconduct...”)

°2017 WL 2889105 1(Del. Super. July 7, 2017).

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The Court recognizes that self-represented

litigants may be held to a less stringent

standard in presenting their cases under

certain circumstances. However, “[l]itigants,

whether represented by counsel or appearing

pro se must diligently prepare their cases for trial or risk
dismissal for failure to prosecute. Indeed, “[t]here is no
different set of rules for pro se plaintiffs, and the trial court
should not sacrifice the orderly and efficient administration
of justice to accommodate the unrepresented plaintiff’.
(Citations and footnotes omitted).

On one hand, I am required to hold the self-represented litigant to a less
stringent standard. On the other hand, there are no different set of rules for the
self-represented litigant. In this opinion I try to thread that needle.

MOTION TO DISMISS - STATUTE OF LIMITATIONS

Defendant Beebe Medical Center appropriately raised the statute of
limitations issue in its Answer to the Complaint. Delaware law provides:

[N]o action for the recovery of damage 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 two years
from the date upon which such injury occurred.°

Plaintiff filed outside the two year limit, but relies upon the notice of intent to

investigate - 90 day extension of the limitations period provided by the Medical

 

618 Del. C. §6856
Negligence Chapter of our insurance code.’
18 Del. C. §6856(4) reads in full:

A plaintiff may toll the above statutes of
limitations for a period of 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 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.

18 Del. C. §6856(4) requires strict compliance.® Plaintiffs have an affirmative

duty to establish compliance with subsection 4.° It requires the notice to be sent to

 

"See generally, 18 Del. C., ch 68 and specifically, 18 Del. C. §6856(4).

“Berry v. Connections Cmty. Support Programs, Inc., 2019 WL 6704936 (Del. Super.

Dec. 5, 2019).
*Leatherbury v. Greenspun, 939 A.2d 1284, 1292 (Del. 2007).

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the prospective Defendant by certified mail, return receipt requested.
The notice must include the following:
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.

I have two problems with Plaintiff's notice. First, Plaintiff sent the notice to
the individual Defendants c/o Beebe Medical Center at its correct address, and to
Dori Blades c/o Beebe Medical Center. Nowhere in the record of the case do I
have an identification of Ms. Blades. Plaintiff told me at argument that he was told
to send the notice for Beebe Hospital to Ms. Blades. Plaintiff knew how to send
correspondence to one party “care of” another. I would have thought he would
have styled any notice to Beebe Medical Center to it, care of Ms. Blades, but he
did not. His document from the United States Postal Service shows he sent the
notice to Dori Blades.

The second issue with the notice is it does not identify Beebe Medical Center
as a potential defendant. The notice'°identifies three prospective Defendants:
Thomas M. Cathcart, PAC (physician’s assistant), Joydeep Haldar, M.D., and

Charles Marshall, RN (registered nurse). The notice also states that each of the

 

'T attach the notice to this opinion as an Appendix.

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“potential” Defendants are working for Beebe Medical Center. One could infer
from what Plaintiff wrote that Beebe was legally responsible for those who work for
it. But Plaintiff did not strictly comply with the notice statute.

The notice statute has been reviewed for compliance in a number of cases.
In Berry v. Connections Cmty. Support Programs, Inc.,"' the Plaintiff failed to
name an individual Defendant, failed to send the notice by certified mail, and did
not give a sufficient description of what was being investigated. The Complaint
was dismissed.

In Leatherbury v. Greenspun," plaintiff sent the notice by Federal Express,
not certified mail. Our Supreme Court affirmed the dismissal by this Court,
requiring strict compliance with the statute. By comparison in Verrastro v.
Bayhealth Med. Ctr., Inc.," this Court rejected a challenge to the notice in which
the Defendant claimed failure to properly describe what was being investigated.

Here, Plaintiff failed to meet two basic requirements. He never identified
Beebe Medical Center as a potential Defendant, and did not send the required

notice. If strict compliance was not required, one might overlook these deficiencies

 

''2019 WL 6704936 (Del. Super. Dec. 5, 2019)
"2939 A.2d at 1292.
'3119 A.3d 676 (Del. Super 2015).

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as “close enough”. Our case law is clear, however, in precedent from both this
Court and our Supreme Court, proper notice is required. Because Plaintiff did not
strictly comply with the notice requirements, he is not entitled to the subsection 4
ninety day grace period. His complaint as to Beebe Medical Center was filed
outside the limitations period and must be dismissed. Beebe Medical Center’s
motion to dismiss the Complaint as to it is granted.
THE MOTIONS FOR SUMMARY

JUDGMENT - THE MEDICAL EVIDENCE

All Defendants have moved for summary judgment by challenging the state
of the medical evidence. Because I have granted Beebe Medical Center’s motion
to dismiss as to the Statute of Limitations issue, its motion as to the state of the
medical evidence is denied as moot. I address only the individual Defendants’
motion as to the expert evidence issue.

Defendants comprehensively challenge Dr. Raffo’s opinions. Not
surprisingly, they challenge his statements expressed in his August 2019 letter that
the opinions are based upon the factual information and contentions Plaintiff
provided him and not a review of the records. The doctor can rely upon what
Plaintiff told him. Of course, that information would be subject to challenge and
ordinary cross-examination at trial. No doubt the cross-examination would have

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been fruitful. In my opinion, the doctor’s letter was sufficient to survive a motion
for summary judgment.

Unfortunately for Plaintiff, there is more to the story. Dr. Raffo has now told
the parties he cannot express an opinion without further records and information. I
do not know why Dr. Raffo changed his view, but correspondence provided to me
as well as the affidavit of counsel for the individual Defendants show to me he has.
He now needs the records and information, and will not or cannot testify without it.

Plaintiff argued to me that Defendants did not provide the additional records
to Dr. Raffo as he requested prior to the doctor’s deposition. While Plaintiff's
contention is correct, Plaintiff's conclusion is based upon an incorrect assumption.
Plaintiff has the obligation to produce sufficient expert evidence to support his
case. To do that he must ensure his expert has all that he requires to be able to
testify as mandated by law.

While I loathe to repeat war stories, I saw in my practice incidents where
expert witnesses fell apart, often at depositions. For a Plaintiff, a failing expert
witness is always a disaster. Here Plaintiff's expert refused to support his case
even before his deposition began.

Had the failing expert’s deposition occurred closer to trial, I would have

granted the individual Defendants’ motion for summary judgment. But in this case,

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Dr. Raffo’s opinions survived the Certificate of Merit process'* and the initial
expert disclosure requirements. I am unwilling to dismiss the case now, especially
in light of my obligations in dealing with a self-represented litigant.

My denial of the individual Defendants’ motion is conditioned upon Plaintiff
meeting several requirements. First, within 30 days of this opinion, Plaintiff must
provide to Dr. Raffo whatever records he needs to support his opinions. Second,
within 45 days of this opinion, Plaintiff must provide a written opinion from Dr.
Raffo sufficiently supporting his claims for medical negligence, including
supporting a claim for causation between any medical negligence and Plaintiff’s
alleged injuries. Third, within 60 days of the date of this opinion, Plaintiff must
work with counsel for the individual Defendants to arrange a discovery deposition
of Dr. Raffo. Should Plaintiff fail in any of these requirements, counsel should feel
free to notify me by appropriate motion.

IN SUMMARY

The requirements of the notice provision of Chapter 68 of Title 18 require
strict compliance. Whether a Plaintiff is represented by counsel or self represented,
the consequences of failure are clear and unforgiving. Plaintiff's failure require

dismissal of the claims against Beebe Medical Center.

 

“See 18 Del. C. §6853.

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failure require dismissal of the claims against Beebe Medical Center.

The requirements of trial evidence during the preparation phase are more
flexible. In using my discretion and taking into account that Plaintiff is self-
represented, I have set a schedule that may allow Plaintiff to proceed to trial.'°
Thus, for now I deny the motions of Dr. Haldar and Mr. Cathcart. My opinion

reflects my attempt to thread the needle between holding self represented parties to

a less stringent standard and to also apply “no different set of rules” to self

represented litigants.

IT ISSO ORDERED

ce: Prothonotary

 

'°One final note about trial. Trial is set for the third week of September. The pandemic

caused by Coronavirus 19 likely will mean we are unable to conduct Jury trials by that date. I
hope conditions improve so that jurors and all of us are safe and comfortable to be able to do so.

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