Opinion
C. A. N21C-06-269 JRJ
03-29-2022
DAMEON WATSON, as Administrator of the Estate of KAIA'LYNN CONGO WATSON; DAMEON WATSON, individually; and IESHA CONGO WATSON, individually, Plaintiffs, v. ALFRED I. DUPONT HOSPITAL FOR CHILDREN, NEMOURS FOUNDATION; KATHLEEN CATLETT, M.D.; and NADINE SMITH, D.O., Defendants.
Date Submitted: December 22, 2021
Date Decided: March 22, 2022
Date Corrected: March 23, 2022[*]
Date Corrected: March 29, 2022 [**]
ORDER
Jan R. Jurden, President Judge
AND NOW TO WIT, this 29 th day of March, 2022, the Court having duly considered Defendants Alfred I. duPont Hospital for Children, Nemours Foundation ("Nemours") and Nadine Smith, D.O.'s Motion to Dismiss, and Plaintiffs' opposition thereto, IT APPEARS THAT:
Motion to Dismiss on behalf of Defendants Alfred I. duPont Hospital for Children, Nemours Foundation and Nadine Smith, D.O. ("Defs.' Mot.") (Trans. ID. 66960211).
Response to Defendants' Motion to Dismiss ("Pl. Resp.") (Trans. ID. 67067767); Supplemental Response to Defendant's [sic] Motion to Dismiss ("Pl. Supp. Resp.") (Trans. ID. 67173977).
The following facts are drawn from the Complaint and viewed in the light most favorable to the non-moving party.
1. At approximately 12:30 p.m. on May 22, 2018, Kaia'lynn Congo Watson ("Minor Plaintiff") was taken by her parents, Iesha Congo Watson and Dameon Watson ("Plaintiffs" or "Parent Plaintiffs"), to Nemours Emergency Department for treatment of high blood pressure, increased respiration rate, lethargy, paleness, and shortness of breath. By 4:00 p.m. that same day, the Minor Plaintiff was declared deceased.
Complaint ("Compl.") at ¶ 7 (Trans. ID. 66725582). Defendant Nadine Smith, D.O. was Minor Plaintiffs attending physician at all material times following Minor Plaintiffs presentment to the emergency room. Id. at ¶ 8.
Id. at ¶ 20.
2. Nemours immediately reported the incident to Delaware Child Protective Services ("CPS") which resulted in the Parent Plaintiffs and their other children being subjected to hours of interrogation while still at the hospital.In addition to this questioning, CPS searched Parent Plaintiffs' house, and required their children to undergo a physical examination and live with their grandparents until CPS concluded its investigation.
Id. . at ¶¶ 22-3.
Id. . at ¶¶ 24-5.
3. On June 11, 2018, Parent Plaintiffs' counsel wrote a letter on their behalf to Nemours requesting medical records relating to the Minor Plaintiff.
Id. at ¶ 28.
4. On June 29, 2021, three years, one month and seven days following the death of Minor Plaintiff, Parent Plaintiffs filed the instant suit asserting the following claims: Wrongful Death/Medical Negligence (Count I); Survival Claim (Count II); Respondeat Superior (relating to Defendant Katherine Catlett, M.D. and Defendant Nadine Smith, D.O.) (Count III); and Violation of the Delaware Child Abuse Prevention Act, 16 Del. C. §902 and §914 (Count IV).
See generally Compl.
5. On September 20, 2021, Plaintiffs conceded that Count I was untimely and stipulated to the dismissal of that count.
Defs.' Mot. at 1; Partial Stipulation of Dismissal (Trans. ID 66948607).
6. On September 24, 2021, Defendants filed the instant Motion to Dismiss seeking dismissal of the remaining three counts.
See generally Defs.' Mot.
7. Defendants argue that Plaintiffs' survival claim (Count II) is barred by the statute of limitations set forth in 18 Del. C. § 6856. Section 6856 provides:
Defs.' Mot. at 2.
No action for the recovery of damages 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 2 years from the date upon which such injury occurred; provided, however, that:
(1) Solely in the event of personal injury the occurrence of which, during such period of 2 years, was unknown to and could not in the exercise of reasonable diligence have been discovered by the injured person, such action may be brought prior to the expiration of 3 years from the date upon which such injury occurred, and not thereafter;
(2) A minor under the age of 6 years shall have until the latter of time for bringing such an action as provided for hereinabove or until the minor's 6th birthday in which to bring an action;
(3) Notwithstanding any provision to the contrary, a cause of action based on the sexual abuse of a child patient by a health-care provider may be brought at any time following the commission of the act or acts that constituted the sexual abuse. A civil cause of action for sexual abuse of a child patient by a health-care provider shall be based upon sexual acts which would constitute a criminal offense under the Delaware Code.
8. Plaintiffs contend that the tolling provision set forth in Section 6856(2) extends the statute of limitations for the claim of the Minor Plaintiff until her sixth birthday.
Pl. Resp. at 2-3; Pl. Supp. Resp. at 2-3.
9. The tolling provision of 18 Del. C. § 6856(2) clearly contemplates the claims of a living child. The plain language of the statute, "A minor under the age of 6 years shall have until the latter of time for bringing such an action as provided for hereinabove or until the minor's 6th birthday in which to bring an action" makes no reference to a deceased plaintiff or the estate of a minor plaintiff. Section 6856(2) makes specific reference to the claimant's subsequent birthdays, which would not occur if the minor is deceased, and provides for claims the minor can bring in the future.
10. A deceased plaintiff cannot make their own claim. Such claim must be made on behalf of their estate. The Court has previously determined that the clear language of 18 Del. C. § 6856(2) specifically limits the tolling provision to the claim of a minor, and not to the minor's parents, holding, "the tolling provision of 18 Del. C. § 6856(2) is meant to exclusively benefit minors and does not inure to the benefit of the parent." This holding is bolstered by the legislative history which shows that this subsection was enacted to prevent minors from being "penalized for their parents' inaction or delay in bringing an action on their behalf."
10 Del. C. § 3701. Section 3701 provides:
All causes of action . . . shall survive to and against the executors or administrators of the person to, or against whom, the cause of action accrued. Accordingly, all actions, so surviving, may be instituted or prosecuted by or against the executors or administrators of the person to or against whom the cause of action accrued. Id.
Myer v. Dyer, 542 A.2d 802, 805 (Del. Super. Apr. 10, 1987); see also Myer v. Dyer, 643 A.2d 1382, 1385 (Del. Super. Dec. 22, 1993).
Broughton v. Wong, 2015 WL 7776767, at *2 (Del. Super. Nov. 24, 2015).
11. Parent Plaintiffs cite 10 Del. C. §§ 3701 and 3704 as the basis for their claims. They seek to substitute themselves for the deceased Minor Plaintiff to prosecute the Minor Plaintiff's claim for medical negligence. In this case, because the Minor Plaintiff is deceased, she cannot be penalized by the inaction or delay of the Parent Plaintiffs. Further, because the minor is deceased and presumably intestate, the only parties who can benefit from this claim are the Parent Plaintiffs. However, this Court has already determined that the tolling provision does not inure to the benefit of parents. The Supreme Court of Delaware has "long refused to rewrite clear statutes of limitations to provide exceptions" and maintains that, "where the Legislature has made no exception to the positive terms of a statute, the presumption is it intended to make none." The survival claim is subject to a three-year statute of limitation, at best, and, therefore, the claim is untimely and must be dismissed.
Myer v. Dyer, 542 A.2d 802, 805 (Del. Super. Apr. 1, 1987); see also Myer v. Dyer, 643 A.2d 1382, 1385 (Del. Super. Dec. 22, 1993).
Ewing v. Beck, 520 A.2d 653, 660 (Del. 1987).
12. Plaintiffs allege a violation of the Delaware Child Abuse Prevention Act ("CAPA") 16 Del. C. §§ 901 and 914 in Count IV. Plaintiffs plead that a Nemours employee made false allegations to CPS on the day of the Minor Plaintiff's death regarding potential child abuse by Parent Plaintiffs. Parent Plaintiffs further allege these false allegations caused them harm before they were even able to leave the hospital to grieve their child. Because this event occurred after the death of the Minor Plaintiff, this claim is uniquely the claim of the Parent Plaintiffs.
Compl. at ¶¶ 20-23, 52-53.
13. The triggering event for purposes of the statute of limitations is notice of the injury or when Parent Plaintiffs learned of the existence of a previously inherently unknowable injury - it is not notice of the negligence or cause of the injury.
See Estate of Buonamici v. Morici, 2010 WL 2185966, at *3 (Del. Super. Jun. 1, 2010) (holding "[n]o objective or observable factors may exist that might have put the plaintiffs on notice of an injury . . . [o]nce the injury manifests itself, the plaintiff is no longer 'ignorant' and the injury is no longer 'unknowable'.") (citations omitted). Id. at *3-4.
14. Because there is no statute of limitations set forth in 16 Del. C. § 914, the statute of limitations for violations of the CAPA is governed by 10 Del. C. § 8106(a). Section 8106(a) provides:
No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action;
10 Del. C. § 8106(a) (emphasis added).
The Parent Plaintiffs allege in the Complaint that they were injured by the false child abuse allegations made on the day of the Minor Plaintiff's death. The statute of limitations on the CAPA claim began to run on May 22, 2018. Parent Plaintiffs argue that the statute did not begin to run until July 28, 2018, the day they learned they were cleared of those child abuse allegations. This date, however, is not pled in the complaint. It was raised by Parent Plaintiffs in their reply to the motion to dismiss. Regardless, this argument does not save their claim. Under the facts as pled, "rather than taking the time to explain what happened to…[their deceased child] and before the family could gather, Nemours immediately reported the incident to…[CPS]. And, as a result, the Parent Plaintiffs and their children were interrogated for hours at the hospital." Plaintiffs, therefore, received notice of injury, and the statute of limitations began to run, on May 22, 2018 when they were "unable to grieve with their children for the death of [Minor Plaintiff]."
Compl. at ¶¶ 22-23.
Id. . at ¶ 53.
15. Even assuming arguendo the Parent Plaintiffs were not aware of their injury on May 22, 2018, at the latest, they are charged with knowledge of injury after consulting with counsel on or before June 11, 2018, when counsel wrote a letter on their behalf requesting records relating to the Minor Plaintiff from Nemours. Under that scenario, their Complaint was still filed beyond the three year statute of limitations.
Id. at ¶ 28; See Buonamici, 2010 WL 2185966, at *6.
16. Because the claims in Counts II and IV are untimely, the Plaintiffs' derivative claims based on respondeat superior in Count III are also untimely.
Dollard v. Callery, 185 A.3d 694, 708 (Del. Super. 2018) (holding that the respondeat superior claim against the Delaware State Police was moot where the Court already found that the plaintiffs failed to state a claim against the individual defendants).
NOW, THEREFORE, viewing the facts in the light most favorable to the non-movant Parent Plaintiffs, the Court finds that the claims in Counts II, III and IV of the Complaint were untimely filed under the applicable statutes of limitations and are, therefore, DISMISSED.
[*]The Court corrected citation errors in footnotes 15-18, 20 and 24.
[**]The Court corrected a typographical error in the name of the first Defendant listed.