De Roche v. Grewal, M.D.
K16C-05-013 JJC
| Del. Super. Ct. | Oct 4, 2016Background
- On February 21, 2014 Stephane DeRoche underwent a cardiac catheterization performed by Dr. Harjinder Grewal at Bayhealth Kent General Hospital; the catheter became entangled and a complication caused internal bleeding.
- DeRoche experienced post-procedure hypotension, was discharged, then readmitted repeatedly over the following weeks with internal bleeding, transfusion, and thromboembolic events.
- DeRoche filed a medical negligence complaint on May 12, 2016 against Dr. Grewal and Bayhealth.
- DeRoche sent a Notice of Intent to Investigate to Dr. Grewal on February 3, 2016, which tolled the two-year statute of limitations for Grewal; no such notice was shown as sent to Bayhealth.
- DeRoche did not file an affidavit of merit with the complaint; he argued a statutory exception (wrong organ/part) applied, excusing the affidavit requirement.
- The Court adjudicated a Rule 12(b)(6) motion and dismissed the claims: Bayhealth for untimeliness, and both defendants for failure to file an affidavit of merit.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Statute of limitations as to Bayhealth | DeRoche generally argued timeliness given his pro se status and injury complications | Bayhealth argued no Notice to Investigate was sent to toll the two‑year limitation | Held for Bayhealth: DeRoche failed to toll the statute as to Bayhealth; claim dismissed as untimely |
| Statute of limitations as to Grewal | DeRoche relied on timely Notice to Investigate to toll limitations | Grewal did not contest sufficiency of notice | Held for DeRoche on timeliness as to Grewal: claim timely filed |
| Affidavit of merit requirement | DeRoche argued exception applies because probe perforated artery and damaged surrounding tissue ("wrong part") | Defendants argued Delaware requires affidavit unless statutory exception (foreign object, fire/explosion, or procedure on wrong organ/part) clearly applies | Held for Defendants: affidavit required because this was the intended procedure on the correct body part; exception does not apply |
| Effect of failing to file affidavit of merit | DeRoche sought to avoid dismissal by invoking the statutory exception and pro se status | Defendants sought dismissal with prejudice for noncompliance with § 6853(a)(1) | Held for Defendants: complaint dismissed with prejudice for failure to file affidavit of merit |
Key Cases Cited
- Spence v. Funk, 396 A.2d 967 (Del. 1978) (standards for accepting well‑pleaded allegations on motion to dismiss)
- Diamond State Telephone Co. v. University of Delaware, 269 A.2d 52 (Del. 1970) (test for sufficiency of complaint)
- Freeman v. X‑Ray Associates, P.A., 3 A.3d 224 (Del. 2010) (explaining "wrong organ/part" exception where entire procedure was performed on the wrong organ)
- Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1953) (pleading sufficiency principles cited)
- Smith v. Kobasa, 113 A.3d 1081 (Del. 2015) (pro se status does not excuse compliance with statutory requirements)