Dishmon v. Fucci
32 A. 3d 338, 2011 WL 5438957, 2011 Del. LEXIS 601 (2011)
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Rule of Law:
The failure to include a mandatory attachment, such as a curriculum vitae, with an Affidavit of Merit in a medical negligence action is a correctable procedural deficiency, not a fatal substantive flaw that warrants dismissal. Trial courts should exercise discretion to permit a plaintiff to cure such a defect, in light of the public policy favoring the resolution of cases on their merits.
Facts:
- On December 27, 2004, James L. Dishmon was admitted to the Hockessin Hills nursing home with several serious medical conditions.
- Dr. Pasquale Fucci served as James Dishmon's primary care physician, and Bernie Schneider was Dr. Fucci's physician’s assistant.
- Michael Dishmon, the decedent's son, claimed he instructed the medical staff not to place a 'Do Not Resuscitate' (DNR) order on his father.
- Dr. Fucci and Schneider allegedly placed a DNR order in James Dishmon's medical file against his family's wishes.
- On December 31, 2004, James Dishmon died from acute coronary ischemia and coronary artery disease.
- As a consequence of the DNR order, the nursing home staff made no effort to resuscitate James Dishmon when he went into cardiac arrest.
Procedural Posture:
- On December 28, 2006, Michael Dishmon filed a medical negligence complaint against Pasquale Fucci, M.D., and Bernie Schneider, PA-C in the Delaware Superior Court (trial court).
- The court granted Dishmon's motion for an extension of time to file a required Affidavit of Merit.
- Dishmon's attorney timely filed an Affidavit of Merit from an expert, Dr. Muncie, but failed to include the expert's curriculum vitae.
- The defendants filed a Motion to Review the affidavit.
- On April 25, 2007, the Superior Court judge dismissed the complaint, finding the affidavit failed to comply with the statute because it lacked the curriculum vitae and was substantively deficient.
- Dishmon filed a Motion for Relief from Judgment, attaching the missing curriculum vitae.
- On September 16, 2010, the Superior Court denied the motion for relief without explanation.
- Dishmon (appellant) appealed the dismissal to the Supreme Court of Delaware.
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Issue:
Does a plaintiff's failure to include an expert witness's curriculum vitae with a timely filed Affidavit of Merit, as required by Delaware statute in a medical negligence case, justify the trial court's dismissal of the complaint?
Opinions:
Majority - Steele, Chief Justice
No, the trial court's dismissal of the complaint was not justified. The failure to include the curriculum vitae was a procedural deficiency that the court should have exercised its discretion to allow the plaintiff to cure. The purpose of the Affidavit of Merit statute is to screen out frivolous claims, not to create a 'mini-trial' at the pleading stage. The requirements are 'purposefully minimal,' and an expert's affidavit that tracks the statutory language is sufficient to make a prima facie showing of negligence. Here, the affidavit itself was substantively compliant, establishing the expert's qualifications and his opinion on negligence and causation. Given Delaware's strong public policy favoring a litigant's right to a day in court, dismissal for a minor, non-prejudicial, and correctable procedural error is too harsh a sanction and constitutes an abuse of discretion.
Analysis:
This decision clarifies that Delaware's statutory requirement for an Affidavit of Merit in medical negligence cases is a low-threshold screening mechanism, not a dispositive procedural hurdle. It strongly reinforces the judicial principle that cases should be decided on their merits whenever possible, directing trial courts to treat minor filing errors as curable defects rather than grounds for dismissal. The ruling provides a safeguard for plaintiffs against the harsh penalty of dismissal for inadvertent procedural non-compliance by counsel, emphasizing that such a sanction should be reserved for willful misconduct or situations causing actual prejudice to the opposing party.
