IN THE SUPREME COURT OF THE STATE OF DELAWARE
CHARLES B. SANDERS, § § No. 403, 2023 Plaintiff Below, Appellant, § § Court Below—Superior Court v. § of the State of Delaware § CENTURION L.L.C., § C.A. No. N22C-06-065 § Defendant Below, Appellee. §
Submitted: April 5, 2024 Decided: May 9, 2024
Before VALIHURA, TRAYNOR, and LEGROW, Justices.
ORDER
After consideration of the briefs and the record on appeal, it appears to the
Court that:
(1) The appellant, Charles B. Sanders, appeals from the Superior Court’s
October 24, 2023 order dismissing Sanders’s complaint against appellee Centurion
of Delaware, LLC (“Centurion”).1 For the reasons discussed below, we affirm the
Superior Court’s judgment.
(2) On June 13, 2022, Sanders filed a complaint in the Superior Court
against Centurion and two of its employees. The complaint alleged that the
defendants committed medical malpractice by changing a prostate medication that
1 Although Sanders identified the defendant-appellee as “Centurion, L.L.C.,” the appellee states that the entity’s correct legal name is “Centurion of Delaware, LLC.” Sanders was prescribed, causing Sanders prostate issues that required multiple
catheterizations, some of which were performed incorrectly; infection; emergency
treatment; hospitalization; and surgery.
(3) Centurion moved to dismiss the complaint. Among other grounds for
dismissal, Centurion argued that the complaint should be dismissed because Sanders
did not file an affidavit of merit as required by 18 Del. C. § 6853. Sanders argued
that an affidavit of merit was not required because he filed a motion to convene a
medical negligence review panel.2 Following oral argument on the motion to
dismiss in June 2023, the court directed supplemental briefing as to whether, under
the Superior Court’s 2010 decision in Miller v. Taylor,3 an affidavit of merit was
required if the plaintiff in a medical-negligence action filed a motion to convene a
medical negligence review panel.
(4) In its supplemental brief, Centurion argued, relying on this Court’s
decision in Steedley v. Surdo-Galef,4 that a plaintiff’s request to convene a medical
2 See 18 Del. C. §§ 6802-14 (establishing procedures for convening a medical negligence review panel—upon request of a party to a civil action alleging medical negligence, made at any time after the filing of an answer or a motion filed in lieu of an answer—to make findings as to whether the evidence supports the conclusion that the defendant or defendants acted within the applicable standard of care). 3 See Miller v. Taylor, 2010 WL 3386580, at *2 (Del. Super. Ct. Aug. 19, 2010) (concluding that “where a timely demand to convene a medical malpractice review panel has been filed, as is the case here, no affidavit of merit is required under Section 6853”). 4 See Steedley v. Surdo-Galef, 2013 WL 1228019, at *1 (Del. Mar. 26, 2013) (“It is undisputed that Steedley failed to file an affidavit of merit as to either defendant. . . . His contention that the affidavit of merit is not necessary when a plaintiff requests review of the complaint, pursuant to Delaware Superior Court Civil [Rule] 71.2, by a medical malpractice review panel has no basis in law and is contradicted by the clear terms of 18 Del. C. § 6853.”). 2 negligence review panel does not obviate the requirement that an affidavit of merit
accompany a medical-negligence complaint. Sanders voluntarily dismissed his
claims against Centurion’s two employees and, relying on Buck v. Nanticoke
Memorial Hospital, Inc.,5 argued that because his claim was that Centurion was
vicariously liable for its employees’ negligence, an affidavit of merit was not
required. He also argued that an affidavit of merit is not required when a plaintiff
asserts a claim against a hospital for negligent health care administration, hiring, or
oversight, citing Saddler v. Nanticoke Memorial Hospital.6
(5) After a second oral argument on October 24, 2023, the Superior Court
dismissed the complaint. First, the court held that, although Sanders could pursue a
claim asserting that Centurion was vicariously liable for its employees’ medical
negligence without pursuing claims against the employees directly, such a claim
could not proceed in the absence of an affidavit of merit concerning the employees’
medical negligence.7 Second, the court agreed with Sanders that, under Saddler, a
negligent administration claim may proceed without an affidavit of merit. But the
5 2015 WL 2400537 (Del. Super. Ct. May 19, 2015). 6 2012 WL 6846550 (Del. Super. Ct. Dec. 24, 2012). 7 Sanders v. Centurion L.L.C., C.A. No. N22C-06-065, Hearing Transcript, at 21:6-11 (Del. Super. Ct. Oct. 24, 2023) (“You cannot have a finding of liability of the[] employer without an underlying finding that there was medical malpractice. And in order to support a medical malpractice claim, your complaint . . . must be accompanied with the affidavit of merit.”). 3 court concluded that the complaint did not state a claim for negligent administration,
even when read under a notice-pleading standard.8
(6) After de novo review,9 we affirm. Title 18, Section 6853 of the
Delaware Code requires that a complaint “alleging medical negligence be
accompanied by an affidavit of merit, signed by a qualified expert witness and
stating that there are reasonable grounds to believe that each defendant has
committed medical negligence.”10 The statute requires that, before a medical-
negligence lawsuit may proceed, a qualified medical professional has reviewed the
plaintiff’s claim and determined that there are reasonable grounds to believe that the
defendant health care provider breached the applicable standard of care that caused
the injuries claimed in the complaint.11
(7) Citing Buck, Sanders argues that when a plaintiff alleges that a
defendant is vicariously liable for its employee’s medical negligence, an affidavit of
merit is not required. In Buck, the plaintiff claimed that a hospital was vicariously
8 Id. at 21:12-22:3, 18:19-20:6. 9 Dishmon v. Fucci, 32 A.3d 338, 341-42 (Del. 2011). 10 Dambro v. Meyer, 974 A.2d 121, 132-33 (Del. 2009). See 18 Del. C. § 6853(a)(1) (“No health- care negligence lawsuit shall be filed in this State unless the complaint is accompanied by . . . [a]n affidavit of merit as to each defendant signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant. . . .”). The statute sets forth certain limited exceptions that are not applicable to the facts alleged in this case. See id. § 6853(b), (e) (providing that an affidavit of merit is not required if the complaint alleges that a foreign object was left in a patient’s body after surgery, a surgical procedure was performed on the wrong patient or on the wrong part of a patient’s body, or an explosion or fire originated in a substance used in treatment). 11 Dishmon, 32 A.3d at 344. 4 liable for medical negligence committed by its employee. After determining that the
plaintiff had submitted an affidavit of merit that complied with Section 6853 as to
the employee, the Superior Court held that, “[i]n recognition of the derivative nature
of the potential liability imposed pursuant to a respondeat superior claim,” the
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IN THE SUPREME COURT OF THE STATE OF DELAWARE
CHARLES B. SANDERS, § § No. 403, 2023 Plaintiff Below, Appellant, § § Court Below—Superior Court v. § of the State of Delaware § CENTURION L.L.C., § C.A. No. N22C-06-065 § Defendant Below, Appellee. §
Submitted: April 5, 2024 Decided: May 9, 2024
Before VALIHURA, TRAYNOR, and LEGROW, Justices.
ORDER
After consideration of the briefs and the record on appeal, it appears to the
Court that:
(1) The appellant, Charles B. Sanders, appeals from the Superior Court’s
October 24, 2023 order dismissing Sanders’s complaint against appellee Centurion
of Delaware, LLC (“Centurion”).1 For the reasons discussed below, we affirm the
Superior Court’s judgment.
(2) On June 13, 2022, Sanders filed a complaint in the Superior Court
against Centurion and two of its employees. The complaint alleged that the
defendants committed medical malpractice by changing a prostate medication that
1 Although Sanders identified the defendant-appellee as “Centurion, L.L.C.,” the appellee states that the entity’s correct legal name is “Centurion of Delaware, LLC.” Sanders was prescribed, causing Sanders prostate issues that required multiple
catheterizations, some of which were performed incorrectly; infection; emergency
treatment; hospitalization; and surgery.
(3) Centurion moved to dismiss the complaint. Among other grounds for
dismissal, Centurion argued that the complaint should be dismissed because Sanders
did not file an affidavit of merit as required by 18 Del. C. § 6853. Sanders argued
that an affidavit of merit was not required because he filed a motion to convene a
medical negligence review panel.2 Following oral argument on the motion to
dismiss in June 2023, the court directed supplemental briefing as to whether, under
the Superior Court’s 2010 decision in Miller v. Taylor,3 an affidavit of merit was
required if the plaintiff in a medical-negligence action filed a motion to convene a
medical negligence review panel.
(4) In its supplemental brief, Centurion argued, relying on this Court’s
decision in Steedley v. Surdo-Galef,4 that a plaintiff’s request to convene a medical
2 See 18 Del. C. §§ 6802-14 (establishing procedures for convening a medical negligence review panel—upon request of a party to a civil action alleging medical negligence, made at any time after the filing of an answer or a motion filed in lieu of an answer—to make findings as to whether the evidence supports the conclusion that the defendant or defendants acted within the applicable standard of care). 3 See Miller v. Taylor, 2010 WL 3386580, at *2 (Del. Super. Ct. Aug. 19, 2010) (concluding that “where a timely demand to convene a medical malpractice review panel has been filed, as is the case here, no affidavit of merit is required under Section 6853”). 4 See Steedley v. Surdo-Galef, 2013 WL 1228019, at *1 (Del. Mar. 26, 2013) (“It is undisputed that Steedley failed to file an affidavit of merit as to either defendant. . . . His contention that the affidavit of merit is not necessary when a plaintiff requests review of the complaint, pursuant to Delaware Superior Court Civil [Rule] 71.2, by a medical malpractice review panel has no basis in law and is contradicted by the clear terms of 18 Del. C. § 6853.”). 2 negligence review panel does not obviate the requirement that an affidavit of merit
accompany a medical-negligence complaint. Sanders voluntarily dismissed his
claims against Centurion’s two employees and, relying on Buck v. Nanticoke
Memorial Hospital, Inc.,5 argued that because his claim was that Centurion was
vicariously liable for its employees’ negligence, an affidavit of merit was not
required. He also argued that an affidavit of merit is not required when a plaintiff
asserts a claim against a hospital for negligent health care administration, hiring, or
oversight, citing Saddler v. Nanticoke Memorial Hospital.6
(5) After a second oral argument on October 24, 2023, the Superior Court
dismissed the complaint. First, the court held that, although Sanders could pursue a
claim asserting that Centurion was vicariously liable for its employees’ medical
negligence without pursuing claims against the employees directly, such a claim
could not proceed in the absence of an affidavit of merit concerning the employees’
medical negligence.7 Second, the court agreed with Sanders that, under Saddler, a
negligent administration claim may proceed without an affidavit of merit. But the
5 2015 WL 2400537 (Del. Super. Ct. May 19, 2015). 6 2012 WL 6846550 (Del. Super. Ct. Dec. 24, 2012). 7 Sanders v. Centurion L.L.C., C.A. No. N22C-06-065, Hearing Transcript, at 21:6-11 (Del. Super. Ct. Oct. 24, 2023) (“You cannot have a finding of liability of the[] employer without an underlying finding that there was medical malpractice. And in order to support a medical malpractice claim, your complaint . . . must be accompanied with the affidavit of merit.”). 3 court concluded that the complaint did not state a claim for negligent administration,
even when read under a notice-pleading standard.8
(6) After de novo review,9 we affirm. Title 18, Section 6853 of the
Delaware Code requires that a complaint “alleging medical negligence be
accompanied by an affidavit of merit, signed by a qualified expert witness and
stating that there are reasonable grounds to believe that each defendant has
committed medical negligence.”10 The statute requires that, before a medical-
negligence lawsuit may proceed, a qualified medical professional has reviewed the
plaintiff’s claim and determined that there are reasonable grounds to believe that the
defendant health care provider breached the applicable standard of care that caused
the injuries claimed in the complaint.11
(7) Citing Buck, Sanders argues that when a plaintiff alleges that a
defendant is vicariously liable for its employee’s medical negligence, an affidavit of
merit is not required. In Buck, the plaintiff claimed that a hospital was vicariously
8 Id. at 21:12-22:3, 18:19-20:6. 9 Dishmon v. Fucci, 32 A.3d 338, 341-42 (Del. 2011). 10 Dambro v. Meyer, 974 A.2d 121, 132-33 (Del. 2009). See 18 Del. C. § 6853(a)(1) (“No health- care negligence lawsuit shall be filed in this State unless the complaint is accompanied by . . . [a]n affidavit of merit as to each defendant signed by an expert witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant. . . .”). The statute sets forth certain limited exceptions that are not applicable to the facts alleged in this case. See id. § 6853(b), (e) (providing that an affidavit of merit is not required if the complaint alleges that a foreign object was left in a patient’s body after surgery, a surgical procedure was performed on the wrong patient or on the wrong part of a patient’s body, or an explosion or fire originated in a substance used in treatment). 11 Dishmon, 32 A.3d at 344. 4 liable for medical negligence committed by its employee. After determining that the
plaintiff had submitted an affidavit of merit that complied with Section 6853 as to
the employee, the Superior Court held that, “[i]n recognition of the derivative nature
of the potential liability imposed pursuant to a respondeat superior claim,” the
affidavit of merit as to the negligence of the employee “is sufficient to sustain a
claim at the outset against both an employee health care provider and the alleged
employer of that provider.”12 Unlike in Buck, however, Sanders did not provide an
affidavit of merit stating that there were reasonable grounds to believe that
Centurion’s employees breached the applicable standard of care. The Superior Court
therefore correctly dismissed Sanders’s medical-negligence claim.13
(8) Sanders also argues that his supplemental submissions following the
June 2023 hearing put Centurion on notice that he was asserting a claim for negligent
hospital administration and that, under Saddler,14 no affidavit of merit is required for
such a claim. After careful consideration, we conclude that the Superior Court
correctly determined—and Sanders effectively concedes—that Sanders’s complaint
12 Buck, 2015 WL 2400537, at *3. 13 See, e.g., Steedley v. Surdo-Galef, 2013 WL 1228019, at *1 (Del. Mar. 26, 2013) (affirming dismissal of medical-negligence complaint against doctor and doctor’s employer because the plaintiff “failed to file an affidavit of merit as to either defendant”). 14 See Saddler v. Nanticoke Mem. Hosp., 2012 WL 6846550, at *5 (Del. Super. Ct. Dec. 24, 2012) (concluding that an affidavit of merit “is not required when a plaintiff asserts related claims against a hospital for negligence in hospital administration, because claims for negligent administration, hiring, and oversight are not healthcare medical negligence claims, but rather are ordinary negligence claims”). 5 did not state a negligent-administration claim. Although the Superior Court Rules
of Civil Procedure permit a party to “amend the party’s pleading once as a matter of
course at any time before a responsive pleading is served,”15 a party “may not amend
the pleadings through briefing on a motion to dismiss.”16 Sanders did not file an
amended complaint, and the Superior Court did not err by dismissing the complaint
on the basis that it stated only a medical-negligence cause of action without a
supporting affidavit of merit.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior
Court is AFFIRMED.
BY THE COURT:
/s/ Gary F. Traynor Justice
15 DEL. SUPER. CT. R. CIV. PROC. 15(a). 16 Reylek v. Albence, 2023 WL 142522, at *2 (Del. Super. Ct. Jan. 10, 2023) (internal quotation omitted). 6