The Supreme Court of the State of Delaware (“Delaware Supreme Court”) held in its opinion filed on April 8, 2019: “we conclude that Greco [Greco v. University of Delaware, 619 A.2d 900 (Del. 1993)] should be overruled to the extent that it held that, if a plaintiff has failed to sue the employee whose malpractice allegedly injured her within the statute of limitations, she is for that reason alone barred from suing the employer under principles of respondeat superior. Because in this case the plaintiff sued the employer in a timely manner, settled principles of law authorize the plaintiff to proceed against that employer.”
The Underlying Facts
The decedent went to the emergency room on August 12, 2012 complaining of breathing difficulties. She was discharged later that day with an antibiotic prescription and with instructions to schedule an appointment with a thoracic surgeon. Her breathing difficulties worsened, however, and the next day she went to the emergency room of another hospital, which is part of the same hospital system as the first hospital.
At the second hospital, the decedent was examined and treated by two physicians, both of whom were employees of the defendant hospitalists company. The decedent’s condition quickly worsened, and at 1:07 a.m. on August 14, 2012, she was pronounced dead. An autopsy found a large mediastinal mass, which constricted the decedent’s breathing and blood flow and ultimately caused her fatal heart failure.
In October 2014, the decedent’s daughter, acting as the personal representative of her mother’s estate, filed a Delaware medical malpractice action against several healthcare providers, including the two physicians and the defendant hospitalists company, alleging that the physicians’ failure to diagnose and treat the tumor caused her mother’s suffering and death.
The plaintiff did not file the medical negligence action within the two-year statute of limitations period ordinarily applicable to Delaware medical negligence actions. Instead, she attempted to toll the statute by sending Notices of Intent under 18 Del C. § 6856(4) to the defendant hospitalists company and the two physicians. All three of the Notices of Intent were sent to the defendant hospitalists company’s address because the plaintiff was unaware that both of the physicians had left the employ of the defendant hospitalists company, and the Notices of Intent to the two physicians went undelivered and were returned to the plaintiff’s Delaware medical malpractice lawyer as undeliverable. Thus, the defendant hospitalists company had received the Notice of Intent before the two-year statutory period had expired, but the two physicians did not.
The plaintiff nonetheless filed her Delaware medical malpractice lawsuit against the defendant hospitalists company and the two physicians beyond the ordinary two-year statutory period but within the tolling 90-day period under 18 Del C. § 6856(4). The two physicians moved to dismiss on the grounds that the medical malpractice complaint was barred by the two-year statute of limitations.
The Superior Court granted the physicians’ motion to dismiss. The plaintiff was unable to produce evidence supporting a direct, non-vicarious claim against the defendant hospitalists company, which then moved for summary judgment on the grounds that, because all claims against the two physicians had been dismissed, the vicarious claims against the defendant hospitalists company based on the doctrine of respondeat superior were no longer viable. Relying on the Greco decision, which had held that if a plaintiff has failed to sue the employee whose malpractice allegedly injured her within the statute of limitations, she is for that reason alone barred from suing the employer under principles of respondeat superior, the Superior Court granted the defendant hospitalists company’s motion for summary judgment. The plaintiff subsequently appealed.
Delaware Supreme Court Opinion
The Delaware Supreme Court stated that under the well entrenched doctrine of agency law known as respondeat superior, an employer is subject to liability for torts committed by employees while acting within the scope of their employment. The imposition of liability on the employer arises not because the employee is liable personally for his conduct, but because the employer selected an employee who performed the employer’s business negligently and caused an injury. As such, the imputation of negligence rests squarely upon, and is justified by, the culpability of the employee, not upon the circumstance of whether or not the employee may, himself, be held liable for his act.
The Delaware Supreme Court stated that the employer’s liability hinges upon the employee’s culpability—as distinguished from the employee’s liability.
§ 217B(2) Of The Restatement (Second) Of Agency
Section 217B(2)—a provision that was not carried forward in the Third Restatement published in 2005—states that “[i]f the action is based solely upon the tortious conduct of the agent, judgments on the merits for the agent and against the principal, or judgments of varying amounts for compensatory damages are erroneous.”
The Delaware Supreme Court stated: “our review of traditional respondeat superior principles leads us to conclude that § 217B’s “on the merits” language was not intended to encompass procedural dismissals that do not adjudicate the wrongfulness of the agent’s conduct. Instead and in context, we believe that the phrase “judgment on the merits” in § 217B(2) means judgment on the merits of the conduct, that is, a judgment finding that the employee is not culpable … [t]hus, a dismissal can be “on the merits” as it concerns the viability of another suit against the dismissed party without having a collateral effect on a potentially responsible third party. Section 217B(2), in our view, was meant to prevent substantively inconsistent outcomes and not meant to reach the issue of whether procedural defenses run from an agent to a principal … We believe that this application of pertinent respondeat superior principles serves the purpose of that doctrine more faithfully than does Greco’s conclusion that, if a claim against the agent is time-barred, the principal is relieved of responsibility even though a timely claim has been made against the principal.”
The Delaware Supreme Court held: “to the extent that Greco is read—as the Superior Court did in this case—to eradicate otherwise timely claims against a principal because claims based on the same facts would be time-barred if made against the principal’s agent, we overrule it. We hold that, in a negligence action against a principal based on the doctrine of respondeat superior, the dismissal of the agent on defenses personal to the agent does not automatically eliminate the principal’s vicarious liability.”
The Delaware Supreme Court stated: “We also think that allowing a plaintiff to proceed against an employer where the statute of limitations has run on the plaintiff’s suit against the employee but not on the suit against the employer is consistent with the rationale underlying the doctrine of respondeat superior. In particular, it is the negligence of the employee that is imputed to the employer, not the employee’s liability. The principle was faithfully observed in Fields, and Greco itself recognized that “the negligence of [the] employee . . . must be the focus of any inquiry into the vicarious liability of the employee . . . under the doctrine of respondeat superior.””
Source Verrastro v. Bayhospitals, LLC, No. 233, 2018.
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