Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:07-cv-00006-GMS

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

KEVIN C. BRAITHWAITE,

) ) Plaintiff, ) v. ) ) CORRECTIONAL MEDICAL SERVICES, ) SCOTT S. ALTMAN, and ) CATHY KIONKE ) ) Defendants. ) ------------------------------------------------------

Case No. 007-006 JURY TRIAL DEMANDED

DEFENDANTS' MOTION TO DISMISS PURSUANT TO 18 DEL. C. § 6853 Defendants Correctional Medical Services, Inc. ("CMS"), Scott Altman, and Cathy Kionke (collectively, "Defendants") by and through their undersigned counsel of record, hereby move for entry of an Order in the form attached hereto dismissing with prejudice Plaintiff's claims for medical negligence. In support of their motion, Defendants state as follows: Facts and Procedural Posture 1. On January 5, 2007, Plaintiff initiated the above-captioned action by filing his Complaint

alleging Defendants failed adequately to treat his dental problems. (D.I.2) Plaintiff failed to file with his Complaint an affidavit of merit as required by 18 Del. C. § 6853. 2. On July 31, 2007, Defendants filed their Answer to the Complaint denying, inter alia,

any and all allegations of medical negligence and causation, and raising as a defense Plaintiff's failure timely to comply with 18 Del. C. § 6853 by not filing an affidavit of merit. Argument

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3.

Any claim stated by the Plaintiff sounding in medical negligence pursuant to Delaware

State law must be dismissed for his failure timely to file an affidavit of merit as required by 18 Del. C. §6853, which provides, in relevant part: No healthcare negligence lawsuit shall be filed in the State unless the Complaint is accompanied by: (1) an 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 healthcare medical negligence committed by each defendant. If the required affidavit does not accompany the complaint or if a motion to extend the time to file said affidavit as permitted by paragraph (2) of this subsection has not been filed with the court, then the Prothonotary or clerk of the court shall refuse to file the Complaint and it shall not be docketed with the court. The affidavit of merit and curriculum vitae shall be filed with the court in a sealed envelope which envelope shall state on its face . . . Id. 4. Because Plaintiff did not file any affidavit of merit or timely move for an extension of

time to do so, the Plaintiff's claims sounding in medical negligence must be dismissed. See Buchanan v. Gay, 2006 WL 2709401 (Del.Super.) aff'd 2007 WL 1454884 (Del.) (Exhibit "A", "B"). WHEREFORE, for the foregoing reasons, Defendants respectfully request the Court dismiss with prejudice those portions of Plaintiff's claims which allege medical negligence. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendants Date: August 10, 2007

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UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE

) ) Plaintiff, ) v. ) ) CORRECTIONAL MEDICAL SERVICES, ) SCOTT S. ALTMAN, and ) CATHY KIONKE ) ) Defendants. ) -----------------------------------------------------ORDER AND NOW, this day of

KEVIN C. BRAITHWAITE,

Case No. 007-006 JURY TRIAL DEMANDED

, 2007, the Court having

considered Defendants' Motion to Dismiss Pursuant to 18 Del. C. § 6853, and all opposition thereto, it is hereby ordered that the Motion is GRANTED. All State law medical negligence claims in the above-captioned action are dismissed with prejudice.

J.

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CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 10th day of August 2007, the foregoing Defendants' Motion to Dismiss Pursuant To 18 Del. C. § 6853 was filed via CM/ECF and served First Class Mail upon the following:

Kevin C. Braithwaite SBI #315294 1181 Paddock Rd. Smyrna DE 19972

/s/ James E. Drnec James E. Drnec, Esquire (#3789)