       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILLIAM G. FORREST,                         )
                                            )
             Plaintiff,                     )
                                            )
      v.                                    )        C.A. No. N18C-06-084 ALR
                                            )
FRESENIUS KIDNEY CARE,                      )
                                            )
             Defendant.                     )

                             Submitted: October 16, 2018
                             Decided: November 29, 2018

                          Upon Defendant’s Motion to Dismiss
                          DENIED WITHOUT PREJUDICE

                ORDER GRANTING DISCOVERY AND
            EXTENSION OF TIME FOR AFFIDAVIT OF MERIT

      Upon consideration of the motion to dismiss filed by Defendant Bio-Medical

Applications of Delaware, Inc., d/b/a Fresenius Medical Care North Wilmington,

sued herein as Fresenius Kidney Care (“Defendant”); the facts, arguments and legal

authorities set forth by Defendant; statutory and decisional law; and the entire record

in this case, the Court finds as follows:

      1.     On June 14, 2018, Plaintiff William G. Forrest (“Plaintiff”) filed a civil

lawsuit against Defendant making claims for damages allegedly arising from

Plaintiff’s dialysis treatment that took place on July 26, 2016, at Defendant’s kidney

treatment center.
        2.     On July 24, 2018, Defendant filed a Motion for a More Definite

Statement in the Complaint.

        3.     On August 8, 2018, Plaintiff filed a Response to Defendant’s Motion

for a More Definite Statement in the Complaint, which included a more definite

statement of Plaintiff’s claims and a request for Defendant to provide Plaintiff’s

medical records.

        4.     The Court directed Defendant to file an answer or otherwise respond

no later than September 20, 2018.

        5.     Pursuant to Superior Court Rule of Civil Procedure 12(b)(6), Defendant

has filed a motion to dismiss Plaintiff’s complaint (“Motion to Dismiss”) on the

grounds that it is a medical malpractice action which must be supported by

affidavit(s) of merit filed with the complaint.1

        6.     The Motion to Dismiss was filed on September 19, 2018. The Court

sent Plaintiff a letter dated September 20, 2018, requesting that a response be filed

no later than October 11, 2018. No response was received.

        7.     The statute requiring affidavit(s) of merit to be filed provides for a

single 60-day extension of time to file affidavit(s) of merit.2




1
    18 Del. C. § 6853(a)(1).
2
    18 Del. C. § 6853(a)(2).

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      8.     Nevertheless, Plaintiff is entitled to the discovery requested in

Plaintiff’s August 8, 2018 Response to Defendant’s Motion for a More Definite

Statement in the Complaint. The record is silent regarding whether Defendant has

provided the records to Plaintiff.

      9.     “Litigants, whether represented by counsel or appearing pro se, must

diligently prepare their cases for trial or risk dismissal for failure to prosecute.” 3

Although the Court should not sacrifice order and efficiency to accommodate self-

represented litigants, the Court recognizes that some leniency must be afforded in

the interest of justice.4   The sanction of dismissal is severe, and therefore is

appropriate only if a lesser sanction cannot cure the offending conduct.5 Because

dismissal is an especially harsh result and because Plaintiff may not have had access

to his own medical records which may be necessary for a medical review of prior

treatment, justice requires some latitude.

      10.    Defendant shall either provide a copy of Plaintiff’s medical records to

Plaintiff within 30 days or, if the records have already been provided, notify the

Court of the date on which the records were provided.




3
  Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
4
  Hayward v. King, 2015 WL 6941599, at *4 (Del. Nov. 9, 2015); Anderson v.
Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011); Buck v. Cassidy
Painting, Inc., 2011 WL 1226403, at *2 (Del. Super. Mar. 28, 2011).
5
  See, e.g. Drejka v. Hitchens Tire Serv., Inc., 15 A.3d 1221, 1222 (Del. 2010).

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      11.    Plaintiff is hereby granted 60 days to file an affidavit of merit. That

time period shall start to run either on the day of this Order if Plaintiff’s medical

records have already been provided, or from the date on which Defendant notifies

the Court that the records were provided to Plaintiff consistent with this Order.

      12.    If Plaintiff does not file an affidavit of merit in support of his medical

negligence claim within 60 days of receipt of discovery or the date of this Order,

whichever is sooner, this action must and shall be dismissed.

      NOW, THEREFORE, this 29th day of November, 2018, Defendant’s

Motion to Dismiss is hereby DENIED WITHOUT PREJUDICE. Defendant

shall either provide notice to the Court that medical records have already been

provided to Plaintiff or shall provide Plaintiff’s own medical records to him

within 30 days. Plaintiff shall file Affidavit(s) of Merit as required by statute

within 60 days or this medical negligence case shall be dismissed.

      IT IS SO ORDERED.

                                                                                                                                 Andrea L. Rocanelli
                                              ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                              The Honorable Andrea L. Rocanelli


cc: William G. Forrest




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