## SUPERIOR COURT

of the

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse Judge 38 The Green

Dover, DE 19901 Telephone (302)735

- 2111

February 2 6 , 2020

John Charles Willis James E. Drnec, Esq.
Evelyn Holly Willis Wharton Levin Ehrmantraut

1300 South Farmview Drive & Klein, P.A.

#A10 300 Delaware Avenue

Dover, DE 19901 Suite 1110
Wilmington, DE 19899

RE: John Charles Willis and Evelyn Holly Willis v. Bayhealth
Surgical Assoc., John F. Glenn, III, M.D., and Bayhealth
Medical Center, Inc., D/B/A Kent General Hospital

K18C

- 05

- 031 JJC

Submitte d: January 24, 2020

Decided: February 26 , 2020

Dear Mr. and Ms. Willis and Mr. Drnec :

This letter order provides the Court’s reasoning and decision regarding

Defendants Bayhealth Surgical Associates, John F. Glenn, III, M.D., and Bayhealth

Medical Center’s (hereinafter, collectively “Bayhealth’s” ) summary judgment

motion. At the outset, after reviewing the evidence and considering Mr. and M s.

W illis (hereinafter, collectively, “ the Willises ’ ”) arguments, the Court recognizes

that Mr. Willis suffered extremely serious and unfortunate compli cations following

his treatment

. The Court does not question their good faith belief that Bayhealth is2

responsible

. They ha ve been professional and persistent in advancing their claims

without an attorney. T hroughout the pretrial process, counsel for Bayhealth has also

interacted patie ntly and professionally with the Willis es

.
Apart from these observations, however, the Court must apply well settled

legal principles when deciding Bayhealth’s moti on for summary judgment.

Delaware statute requires that a plaintiff that sues for medical negligence must

present expert medical testimony at trial that a defendant breached the standard of

care an d that the breach caused harm. 1 Here, the discovery period is closed and the

Willises have identified no expert medical opinion that meets these requirements.

Accordingly

, Bayhealth’s motion for summary judgment must be granted.

The Parties ’ Argument s and the Procedural Background

Mr. Willis suffered from a leg wound and infection. The Willises assert claims

of health care negligence against Bayhealth. In the ir complaint, they allege the

following: (1) Bayhealth misdiagnosed Mr. Willis ; (2) Bayhealth negligently treated

him by prescribing the wrong medication to treat the wound; and (3 ) the

misdiagnosis and incorrect treatment permitted further infection that required

additional medical treatment.

Bayhealth now moves for summary judgment alleging that the Willises have

identified no medical expert’s opinion that supports their claims. In response, the

Willises claim that their expert disclosures are sufficient. Namely, they argue that a

report from Dr. Nicholas Biasotto provides the necessary expert opinion

.
Discovery in this matter took place over eight months. On Ap ril 15, 2019, the

Court issued its scheduling order. The o rder set an August 6, 2019 deadline for the

Willises to meet their expert disclosure requirements. After the Willises failed to

provide expert disclosures by August 6 th , Bayhealth’s counsel reminded them by e

-

1 18 Del. C . § 6853 (e).3

mail that the disclosures were late

. 2 Thereafter, o n August 21, 2019, the Willises

filed their “Defendan t’s Expert Discovery Disclosure. ” It was a document that

merely listed p hysicians who treated Mr. Willis after his Bayhealth treatment

. 3 On

August 23, 2019, Bayhealt h’s counsel again contacted the Willises , explained the

deficiencies in their ex pert disclosure s , and requested that they supplement them by

September 6, 2019. 4

After the Willises did not, Bayhealth filed a motion to dismiss

. In response,

the Willises filed a motion to amend the scheduling order, seeking more time to

obtain an expert. The Court heard the Willises’ motion to amend the scheduling

order first

. At a hearing on that motion

, Bayhealth did not oppose an amendment to

the scheduling order that provided the Willises additional time. T he Court then

entered an order exten ding their expert disclosu re deadline to December 1, 2019.

On November 26, 2019, the Willises contacted Bayhealth to request an

additional extension until December 16, 2019. 5 When Bayhealth declined, the

Willises submitted a letter to the Court requesting additional time. 6 At that point,

Bayhealth withdrew its opposition and stipulated to a further extension until

December 16, 2019. When doing so, Bayhealth conditioned this agreement up on its

assumption that the Willises would request no further extensions. 7

On December 16, 2019, the Willises e

- mailed a report from Dr. Biasotto to

Bayhealth

. 8 On December 20, 2019, they filed Dr. Biasotto ’s report and a letter from

2 Def. Mot., Ex. D.

3 Def. Mot., Ex. E.

4 Def. Mot., Ex. F.

5 Def. Mot., Ex. H

. 6 Def. Mot., Ex. I.

7 Def. Mot., Ex. J.

8 Def. Mot., Ex. K.4

Dr. Thomas Burke with the Court

. Dr. Burke’s letter explained the treatment that

he provided Mr. Willis. 9 Dr. Biasotto’s r eport provided only the following:

[Mr. Willis’s] wounds were very friable and exquisitely tender and had
been increasing in size from previous debridements . This led me to
consider vasculitis and/or pyoderma gangrenosa as the diagnosis. This
type of wound is extremely painful and typically gets worse and
enlarges with debridement, if the inflammatory process is not
controlled. Biopsies were performed usin g an immunofluorescent
technique, which distinguishes the normal from vasculitic lesions. . . It
should be noted that the usual H & E stained biopsies may NOT identify
atypical wounds such as pyoderma and/or vasculitis;

immunofluorescent stains are needed to make the diagnosis. 10

Bayhealth then filed the present motion for summary judgment

.

Summary Judgment Standard

Summary judgment is appropriate only if there is no genuine issue of material

fact and if Bayhealth is entitled to judgment as a matter of law. 11 The Court must

view the evidence in the light most favorable to the Willi ses, as the non

- movants. 12

The burden of proof is initially on Bayhealth, who seeks summary judgment

. 13

However, if Bayhealth meets its burden, then the burden shifts to the Willises to

demonstrate the existence of material issues of fact. 14 Their evidence of material

facts in dispute must be sufficient to withstand a motion for judgment as a matter of

law and to support the verdict of a r ational jury. 15 A fter adequate time for discovery

9 See Def. Mot., Ex. L (stating that Mr. Willis “was seen in [Burke Dermatology’s] practice June
9, 2016 and September 21, 2016. He presented with an eczema like reaction on his arms and legs
and an ulcer located on his left lower leg. The ulcer was biopsied and the results c ame back consistent with Stasis Ulcer. Patient has not had any follow up visit.”)

. 10 Pl. Resp., Ex. A.

11 Super. Ct. Civ. R. 56(c); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).

12 Brozaka v. Olson , 668 A.2d 1355, 1364 (Del. 1995).

13 Super. Ct. Civ. R. 56(e); Moore v. Sizemore , 405 A.2d 679, 680 (Del. 1979).

14 Id . at 681 (citing Hurtt v. Goleburn , 330 A.2d 134 (Del. 1974)).

15 Lum v. Anderson , 2004 WL 772074, at *2 (Del. Super. Mar. 10, 2004).5

and upon motion, summary judgment must be entered against a party who cannot

demonstrate facts supporting an essential element of that party ’ s case

. 16

Discussion

In order to prevail, the Willises must present expert medical testimony

supporting their claim. Namely, 18 Del. C. § 6853(e) provides that “[n] o liability

shall be based upon asserted negligence unless expert medical testimony is presented

as to the alleged deviation from the applicable standa rd of care in the specific

circumstances of the case and as to the causation of the alleged personal injury or

death [.]” 17 Given this “ statutory mandate, the production of expert medical

testimony is an e ssential element of a plaintiff’ s medical malpractice case .” 18 T he

plaintiff bears the burden of proof to step forward with such expected testimony

. 19

Under the ru les of civil discovery, a plaintiff must identify it prior to trial.

Here, the Willises do not identify an expert opinion that Bayhealth deviated

from the applicable standard of care. 20 T he Willises initially failed to identify

evidence meeting their burden by the original deadline of August 6, 2019. The Court

permitted them more than four additional months to obtain the necessary medical

expert evidence . Although they eventually filed le tters from two doctors

, neither

document addresses the applicable standard of care . Nor do they address

Bayhealth’s deviation from that stand ard

. Finally, neither doctor’s letter addresses

the element of causation of harm. Instead, the documents d iscuss their diagnoses

and Mr. Willis’s course of treatment

.

16 Burkhart v. Davies , 602 A.2d 56, 59 (Del. 1991) (citing Celotex Corp. v. Catrett

, 477 U.S. 317,

322

– 23 (1986) )

. 17 18 Del. C. § 6853(e) (emphasis added)

. 18 Burkhart , 602 A.2d at 59 (citing Russell v. Kanaga

, 571 A.2d 724, 732 (Del. 1990)).

19 Id.

20 Dr. Biasotto’s statements that the wounds increased in size due to previous debridements
arguably provide evidence of the second statutory requirement that Bayhealth’s actions
proximately caused Mr. Willis’s aggravated personal injury.6

The Court recognizes that pro se litigants are afforded some leniency when

presenting their case. 21 However, all plaintiffs must me et the same substantive

requireme nts. 22 Any l eniency must be limited to the extent that it does not affect the

substantive rights of the parties. 23 Here, the Willises have failed to identify in

discovery the evidence necessary to meet their burden of proof at tria l

. Excusing

this requirement would impair Bayhealth’s substantive rights. I n the absence of an

expert medical opinion that (1) Bayhealth deviated from the applicable standard of

care , or that (2) this deviation proximately caused harm, summary judgment for

Bayhealth must be granted

.

Conclusion

In summary, after receiving adequate time for discovery

, the Willises have

not produced an expert medical opinion that Bayhealth deviated from the applicable

standard of care , or that such a deviation caused them harm

. Accordingly, summary

judgment on behalf of Bayhealth must be GRANTED

.

IT IS SO ORDERED.

/s/ Jeffrey J Clark
Judge
JJC:jb
Via File & ServeXpress and U.S. Mail

21 Damiani v. Gill , 116 A.3d 1243, 2015 WL 4351507, at *1 (Del. 2015) (TABLE).

22 Id. (quoting Draper v. Med Ctr. , 767 A.2d 796, 799 (Del. 2001).

23 Tsipouras v. Szambelak , 2012 WL 1414096, at *1 (Del. Super. Apr. 5, 2012) (quoting Anderson
v. Tingle , 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011)).