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Draper v. Medical Center of Delaware3/12/2001
Submitted: December 12, 2000
Upon appeal from the Superior Court. REVERSED and REMANDED.
In this appeal, we consider whether the Superior Court abused its discretion in dismissing a 1992 medical malpractice action for failure to prosecute. The trial court had dismissed this case in 1997, but this Court reversed in 1998 and remanded for further proceedings. After remand, the Superior Court did not enter a scheduling order or otherwise take steps to get this case back "on track," and appellant, who was then pro se and awaiting instructions from the court, did nothing. In 1999, when the prothonotary sent appellant a form warning that the case would be dismissed if no action were taken, appellant responded and her "reinstated" attorney advised the court that the case was ready for trial. Given these circumstances, and the concerns expressed in our 1997 decision on the same issue, we conclude that appellant should be given one more opportunity to have her day in court.
Factual and Procedural Background
In July 1990, Shaunttel C. L. Draper went to the emergency room at the Christiana Hospital complaining of abdominal pain and heavy vaginal bleeding. Two resident doctors performed certain diagnostic procedures, including a laparoscopy, and Draper was released the following day. Draper returned to the emergency room three days and, again, five days after her initial visit, complaining of increasing abdominal pain. Six days after the first laparoscopy, a different doctor performed an exploratory laparoscopy and small bowel resection. The new doctor discovered a perforation in Draper's small bowel that allegedly resulted from the first laparoscopy. Draper required additional surgery and was hospitalized for two weeks.
In February 1992, Draper's attorney, James F. Kipp, Esquire, filed suit on her behalf against The Medical Center of Delaware, Inc. and Maternity & Gynecology Associates, P.A.. The complaint alleges that appellees were negligent in that they: (i) performed the initial laparoscopy without exercising sufficient care to avoid perforating the bowel; (ii) failed to check for a perforated bowel after performing the laparoscopy; (iii) failed to note the possibility of a perforation on Draper's medical charts; (iv) failed to advise Draper of the possibility of a perforated bowel and consequent infection; and (v) failed to promptly identify and treat the infection that resulted from the perforation. The complaint seeks an unspecified amount of damages for medical expenses, pain and suffering, lost wages and earning capacity, and allegedly permanent injuries to Draper's reproductive organs, bowel function, abdominal soft tissue and heart muscles.
For the first few years after suit was filed, it appears that the litigation was proceeding in the normal course. The docket sheet indicates that both sides took discovery, Draper requested a five day jury trial, and a "firm trial date" was set for August 1995. Shortly before the scheduled trial date, the parties stipulated to a continuance and, shortly after that, Kipp moved to withdraw as counsel.
Draper continued to litigate her claim pro se after October 1995, when Kipp withdrew. She filed several motions for summary judgment; the parties attempted mediation; and the court set new dates from November 1996 through April 1997 for discovery cut-off, filing of dispositive motions, pre-trial conference and trial. After Draper failed to appear at the pre-trial conference, the Superior Court granted appellees' motion to dismiss in March 1997.
This Court reversed that dismissal by Order dated March 16, 1998. In its Order, the Court wrote:
4. At the March 31,
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