Dishmon v. Fucci
2011 Del. LEXIS 601
Del.2011Background
- Dishmon filed medical negligence suit on Dec 28, 2006 against Fucci, M.D. and Schneider, PA-C for his father James Dishmon's death.
- Superior Court dismissed the case for failure to attach the expert's curriculum vitae to the Affidavit of Merit under 18 Del. C. § 6853.
- The affidavit of Dr. Muncie stated qualifications and that breaches by defendants proximately caused death, but CV was missing; dismissal was deemed improper by the appellate court.
- Decedent died on Dec 31, 2004 while under Fucci’s care and Schneider’s supervision; plaintiffs alleged Do Not Resuscitate order led to non-resuscitation.
- Dishmon sought relief from judgment; the motion was denied in 2010 without reasoning, prompting appeal.
- Delaware law recognizes a minimal procedural standard under § 6853 and public policy favors allowing litigation on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Affidavit of Merit satisfied § 6853 | Dishmon contends the affidavit established qualification and breach with proximate causation. | Fucci/Schneider argue the affidavit lacked specificity and proper statutory form. | Affidavit met minimal § 6853 requirements; sufficient to support prima facie claim. |
| Whether the missing CV warranted dismissal | Dishmon argues the lack was a procedural defect that should be excused; CV could be filed later. | Defendants contend missing CV is noncompliance that supports dismissal. | Trial court should have excused the defect and allowed a reasonable time to file the CV. |
| Whether the court properly exercised its discretion under public policy to avoid harsh dismissal | Dishmon asserts public policy favors day in court and nonharsh sanctioning. | Defendants contend dismissal is appropriate for noncompliance. | Public policy favors permitting litigation; dismissal was too harsh a sanction. |
| Whether excusable neglect can justify reopening under Rule 60(b) analysis | The missing CV was excusable neglect due to misfiling sealed envelope and staff error. | Opposing view on excusable neglect given lack of timely compliance. | The neglect was excusable; extension to file CV was appropriate. |
Key Cases Cited
- Dambro v. Meyer, 974 A.2d 121 (Del. 2009) (public policy favoring merits-based adjudication and nonharsh sanctions)
- Beckett v. Beebe Medical Center, 897 A.2d 753 (Del. 2006) (affidavits of merit and supplemental materials; liberal approach to admissibility)
- Drejka v. Hitchens Tire Serv. Inc., 15 A.3d 1221 (Del. 2010) (reluctance to dismissal for procedural missteps; six-factor discretionary test)
- Hoag v. Amex Assurance Co., 953 A.2d 713 (Del. 2008) (excusable neglect and Rule 60(b) considerations)
- Green v. Weiner, 766 A.2d 492 (Del. 2001) (expert familiarity standard for non-physician testimony)