Drummond v. Al Junaidi, M.D. ( 2021 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SANDY DRUMMOND, C.A. No. K20C-07-023 WLW
Plaintiff,
V.
DR. ISLAM J. AL JUNAIDI, M.D.
and BAYHEALTH MEDICAL
CENTER, INC.
Defendants.
Submitted: December 21, 2020
Decided: January 27, 2021
ORDER
Upon Defendants’ Motions for Summary Judgment
Granted
And Second Motion to Test Affidavit of Merit
Moot
Mr. Sandy Drummond, pro se
James E. Drnec, Esquire and Katherine J. Sullivan, Esquire of Wharton Levin
Ehrmantraut & Klein, P.A., Wilmington, Delaware; attorneys for Defendant
Bayhealth Medical Center, Inc.
Thomas J. Marcoz, Jr., Esquire of Marshall Dennehey Warner Coleman & Goggin,
Wilmington, Delaware; attorney for Dr. Islam J. Al Junaidi.
WITHAM, R.J.
Sandy Drummond v. Dr. Al Junaidi & Bayhealth Med. Ctr.
C.A. No. K20C-07-023
January 27, 2021
Before the Court is Bayhealth Medical Center, Inc. (hereinafter “Bayhealth”)
and Islam J. Al Junaidi, M.D.’s (hereinafter “Dr. Al Junaidi’”) Motions for Summary
Judgment. For purposes of this decision, Bayhealth and Dr. Junaidi may also be
referred to as the Defendants. The Plaintiff, Sandy Drummond (hereinafter
“Drummond”) asserts that medical malpractice occurred leading to failure to adhere
to standard of care during treatment and care for asthma exacerbation which led to
physical injury. For the reasons that follow, the motions are granted.
Factual and Procedural History
Bayhealth is a hospital located in Delaware. Dr. Al Junaidi is a medical
physician practicing in Delaware. The facts recited are those as alleged in
Drummond’s Complaint.'! During the days of April 14, 2017 to April 19, 2017,
Drummond was admitted to Bayhealth Kent General Hospital for asthma
exacerbation. During this time, Drummond was treated by Dr. Al Junaidi because
Drummond’s primary doctor was unavailable due to vacation. Drummond’s
treatment involved receiving doses of three different drugs — Levaquin, Advair and
Prednisolone. Drummond is allergic Levaquin. After receiving doses of those
drugs, Drummond complained to Dr. Al Junaidi and hospital staff that he was having
a negative reaction. The symptoms Drummond described were hives, body pain,
joint pain, loss of hair and a skin rash on his back. After relaying these symptoms
to Dr. Al Junaidi and hospital staff, Drummond was told to allow the medications
time to work.
' Savor, Inc. v. FMR Corp., 812 A.2d 894 at 896-97 (Del. 2002) (“All well-pleaded factual
allegations are accepted as true”.)
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Sandy Drummond v. Dr. Al Junaidi & Bayhealth Med. Ctr.
C.A. No. K20C-07-023
January 27, 2021
Drummond filed his complaint on July 14, 2020. Bayhealth subsequently
filed a Motion for summary Judgment on July 22, 2020 and then a Motion to Test
Affidavit of Merit or, in the Alternative, to Dismiss on July 24, 2020. Dr. Al Junaidi
filed his Motion for Summary Judgment and Motion to Review Plaintiff's Affidavit
of Merit on July 30, 2020. Drummond replied to Bayhealth’ s two motions on
August 4, 2020 and to Dr. Al Junaidi’s motions on August 18, 2020. The Court
deferred Defendants’ motions to test Affidavit of Merit, granting Drummond 60
days, or until October 30, 2020, to provide a satisfactory Affidavit of Merit as
detailed by 18 Del. C. § 6853(a)(1). Drummond filed a second Affidavit of Merit
on November 20, 2020 and again on November 23, 2020 after receiving an extension
from the Court. Both Affidavits are identical, include a curriculum vitae, provide
the same information, and will be treated as one. The Affidavit proports to state, by
a board-certified physician practicing in the same field as the allegedly negligent
party, that there are reasonable grounds to believe that there has been healthcare
medical negligence committed by each defendant. The Affidavit is also to include
expert medical testimony detailing the applicable standard of care, the alleged
deviation from the standard, and the causal link between the deviation and the
alleged injury.”
Standard of Review
Under Superior Court Civil Rule 56(c), a party is entitled to summary
judgment if the moving party can show that there is no genuine issue as to any
? Enhaili v. Patterson, 2018 WL2272767 at *2 (Del. Super. April 23, 2018) citing 18 Del. C.
§6853(a)(1). See also Green v. Weiner, 766 A.2d 492 at 494-95 (Del. 2001).
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Sandy Drummond vy. Dr. Al Junaidi & Bayhealth Med. Ctr.
C.A. No. K20C-07-023
January 27, 2021
material fact and that the moving party is entitled to a judgment as a matter of law.>
The party moving for summary judgment bears the initial burden of showing no
material issues of fact are present.’ When a moving party meets the initial burden
of showing that no material issues of fact exist, the burden shifts to the non-moving
party to show that such issues do exist.>
“The ‘mere existence of some alleged factual dispute between the parties will
not defeat an otherwise properly supported motion for summary judgment.’ A
factual dispute is genuine only where ‘the evidence is such that a reasonable jury
could return a verdict for the non-moving party.’”®
Discussion
Both Defendants have moved for Summary Judgment contending that
Drummond failed to timely file his Complaint and, as a matter of law, it must be
dismissed.
Drummond filed his action on July 14, 2020’ alleging facts discussed in the
preceding Factual and Procedural History. In addition, he claims that he was never
told by Dr. Al Junaidi or by hospital staff that they were giving Levaquin to him and
per Federal Drug Administration guidelines, he should have been told. Drummond
is and showed an allergic reaction to Levaquin.®
3 Super. Ct. Civ. R. 36(c).
* Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
° Guardian Const. Co. v. Tetra Tech Richardson, Inc., 583 A.2d 1378 (Del. Super. Ct. 1990).
6 Smith v. Delaware, 745 F. Supp. 2" 467, 478 (D. Del. 2020) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S. Ct. 2505.91 L. Ed. 2d, 202 (1986).
’ Plaintiff's complaint, Doc. Trans. 65767765.
8 Id.Sandy Drummond v. Dr. Al Junaidi & Bayhealth Med. Ctr.
C.A. No. K20C-07-023
January 27, 2021
The statute of limitations for a medical negligence case is a two-year period
applicable to injuries within two years of the wrongful act and a three-year period
applicable to inherently unknowable injuries.’
Drummond sets forth an admission that the injuries took place between April
14, 2017 and April 19, 2017 when Levaquin was prescribed and taken. These facts
are not disputed. Drummond argues that Dr. Al Junaidi either did not know what he
was giving or just did not care. He further points out that Dr. Al Junaidi was made
aware of his adverse reaction but did not at anytime take the time to find out what
was causing it. Drummond does not explain why he waited over a year and five
months past the two-year statute of limitations, or over two months past the three-
year statute of limitations if it applies.
This Court agrees with Defendants that once Drummond became aware of the
injury, in this case when the physical manifestations of the adverse reactions
occurred in the five-day period between April 14, 2017 to April 19, 2017, that the
two-year statute of limitations period begins to run and applies.'° No medical
negligence suit, even from those “inherently unknowable”! injuries can be brought
beyond three years from the date of injury.
° 18 Del. C. § 6856.
'0 Dambro v. Myer, 974 A.2d 121, 130, 136-137 (Del. 2009).
" 18 Del. C. §6856.
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Sandy Drummond y. Dr. Al Junaidi & Bayhealth Med. Ctr.
C.A. No. K20C-07-023
January 27, 2021
Conclusion
Considering the foregoing, Defendants’ motions for summary judgment are
GRANTED. Any further review of the Affidavit of Merit is therefore MOOT.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh