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Procedural deficiency not a bar to effective tolling of the statute of limitations.

January 1, 2011
Heather Farmer & Justin Farmer v. Faith Brosch, M.D., Maternity & Gynecology Associates, P.A., Christiana Care Health Services, Inc., and Christiana Care Corporation, No. 230, 2010 (Dec. 1, 2010); By Chief Justice Myron Steele of the Delaware Supreme Cour

Where the plaintiffs had effectively tolled an extension to the statute of limitations period by 90 days, despite a failure to satisfy a "special rule of pleading," the Delaware Supreme Court reversed and remanded the trial court's denial of the plaintiffs' Motion to Amend the pleadings. In this medical malpractice action, the defendant, Christiana Care, filed a Motion to Dismiss in which it asserted the plaintiffs had not strictly complied with 18 Del. C. ยง 6856(3) in seeking to utilize a statutory 90-day extension to the applicable statute of limitations. Specifically, the defendant alleges that the plaintiffs failed to comply with the statutory requirement that a copy of the Notice be attached to the Complaint to prove compliance with the statute of limitations. The trial court granted the defendant's Motion. Thereafter, the plaintiffs filed a Motion in which they requested leave to amend their Complaint to achieve statutory compliance. The trial court denied the plaintiffs' Motion. On appeal, the Delaware Supreme Court found that a strict reading of the statute reveals that the sending of the Notice of Intent is the Action that tolls the limitations period an additional 90 days. The Court found that the attachment of the Notice of Intent to the Complaint is a procedural requirement, as opposed to a legal prerequisite. The Court further stated that the failure to comply with such a procedural requirement may be appropriately remedied by a Motion to Amend on the basis of the relation back doctrine. In reaching its decision to reverse and remand, the Court declined to determine whether the plaintiffs should be granted leave to amend their Complaint.

Case Law Alert - 1st Qtr 2011

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