Brand v. Bayhealth Medical Center, Inc.

SUPERIOR COURT-
OF THE
STATE OF DELAWARE

VIVIAN L. MEDINILLA LEONARD L. WILLIAMS JUSTICE CENTER
Judge 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DE 19801-3733
TELEPHONE (302) 255-0626

August 23, 2021

Benjamin A. Schwartz James E. Drnec
Schwartz & Schwartz Wharton, Levin, Ehrmantraut & Klein,
1140 South State Street P.A.
Dover, DE 19901 300 Delaware Avenue, Suite 1110
Wilmington, DE 19899

Emily K. Silverstein
White and Williams, LLP
600 North King Street, Suite 800
Wilmington, DE 19801

Re: Patrick Brand, et al. v. Bayhealth Medical Center, Inc., et al.
C.A. No.: N20C-03-266 VLM

Dear Counsel:

This letter will serve to memorialize the Court’s ruling and its reasoning for
its decision regarding Defendants’ Motion for Partial Summary Judgment as to
Plaintiff Leland Brand. For the following reasons and those stated on the record,
Defendants’ Motion is GRANTED.

I. Factual and Procedural Background

This case arises out of the alleged medical negligence of Defendants
Bayhealth Medical Center, Inc., Bayhealth Emergency Physicians, LLC (together
the “Bayhealth Defendants”), Yisrael Meir Bauer, D.O., and Lexx Healthcare, LLC
(collectively “Defendants”) in treating Deborah Ann Brand (“Mrs. Brand”) on April
13, 2018, at Milford Memorial Hospital, which allegedly resulted in her death.

1
Patrick Brand, the husband of Mrs. Brand, brought this suit on behalf of Mrs.
Brand’s estate as well as himself under the Wrongful Death Statute.
In addition to Patrick Brand, Plaintiffs also include the natural children of
Mrs. Brand (Angela Broomall, Anthony Broomall, and Danielle Eichenberg) as well
as Mrs. Brand’s stepson Leland Brand. In the Complaint, Plaintiffs allege that
Leland Brand is a “[child] of Mrs. Brand.”1
Bayhealth Defendants served Plaintiffs with interrogatories on April 30, 2020.
In their response, Plaintiffs stated that Leland Brand was Mrs. Brand’s stepson.2
Leland was Patrick Brand’s natural son from his first marriage and began living with
Patrick and Mrs. Brand in 1989 but was never formally adopted.3 At the time of the
incident, Leland Brand was 47 years old, married and had three children of his own.4
On May 20, 2021, Bayhealth Defendants filed this Motion for Partial
Summary Judgment as to Leland Brand. On May 27, 2021, Defendants Yisrael Meir
Bauer, D.O., and Lexx Healthcare, LLC, filed a notice of joinder to the Bayhealth
Defendants motion. On July 12, 2021, Plaintiff Leland Brand filed a response in
opposition. Oral argument was held on August 18, 2021, where the Court ruled from
the bench and granted Defendants’ Motion.

II. Party Contentions

Defendants argue that the facts establish that Leland Brand was Mrs. Brand’s
stepson, and as such he cannot recover under 10 Del. C. § 3724(a) of the Wrongful
Death Statute because stepchildren are not included in the definition of “child.”5 In
support, Defendants cite to Trievel v. Sabo, where the Superior Court found that a
stepparent could not recover under the same statute.6
Plaintiff Leland Brand does not contest the fact that he was Mrs. Brand’s
stepson and had never been formally adopted by her.7 Rather, Plaintiff disputes that
Defendants are entitled to judgment as a matter of law.8 Plaintiff argues that no court
has decided whether a stepchild can recover under the Wrongful Death Act and

1
See Complaint, ¶ 6.
2
Defendants’ Motion for Partial Summary Judgment, D.I. 27, Exhibit B, at 2.
3
Id.
4
Id.
5
See id. ¶¶ 8-9.
6
See id. ¶ 10.
7
See Plaintiff Leland Brand’s Response in Opposition, D.I. 30, ¶¶ 1.-5.
8
Id. ¶ 6.
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argues that there may be reasons to treat a stepchild differently than a stepparent.9
Finally, Plaintiff argues that the recordings of the General Assembly’s debate over
the Wrongful Death Act reveal an intent to “provide a broad mechanism for family
members to make a claim.”10

III. Standard of Review

The burden of proof on a motion for summary judgment falls on the moving
party to demonstrate that “there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”11 If the moving party
satisfies its initial burden, the non-moving party must sufficiently establish the
“existence of one or more genuine issues of material fact.”12 Summary judgment
will not be granted if there is a material fact in dispute or if “it seems desirable to
inquire thoroughly into [the facts] in order to clarify the application of the law to the
circumstances.”13 “All facts and reasonable inferences must be considered in a light
most favorable to the non-moving party.”14 On a motion for summary judgment, the
Court “will not indulge in speculation and conjecture; a motion for summary
judgment is decided on the record presented and not on evidence potentially
possible.”15

IV. Discussion

Plaintiff is correct that no court has decided whether the term “child” includes
stepchildren under the statute. However, the Court cannot find that “child” includes
stepchildren under the Wrongful Death Act.
Wrongful Death was not a cause of action at common law and thus the
wrongful death statute is “in derogation of the common law and must be strictly

9
Plaintiff Leland Brand’s Response in Opposition, ¶¶ 7-9.
10
Id. ¶ 10.
11
DEL. SUPER. CT. CIV. R. 56(c).
12
Quality Elec. Co., Inc. v. E. States Const. Serv., Inc., 663 A.2d 488, 1995 WL 379125, at *3-4
(Del. 1995); see also DEL. SUPER. CT. CIV. R. 56(e); Moore v. Sizemore, 405 A.2d 679, 681 (Del.
1979).
13
Ebersole v. Lowengrub, 180 A.2d 467, 469-70 (Del. 1962).
14
Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 692 (Del. Super. 1986) (citing Mechell v. Plamer,
343 A.2d 620, 621 (Del. 1975); Allstate Auto Leasing Co. v. Caldwell, 394 A.2d 748, 752 (Del.
Super. 1978)).
15
In re Asbestos Litigation, 509 A.2d 1116, 1118 (Del. Super. 1986) (citations omitted).
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construed.”16 While the statute was meant to be more liberal than its predecessor,17
as seen by comments made by members of the General Assembly during the debates,
the Court must give a “fair construction of the statute and legislative intentions.”18
The statute denotes four classes of people who may recover for a wrongful
death claim. Under 10 Del. C. § 3724(a), an action for wrongful death “shall be for
the benefit of the spouse, parent, child and siblings of the deceased person.”19 The
statute defines “child” to include illegitimate children but is silent on whether
stepchildren are included.20 Our Supreme Court has stated that when interpreting a
statute “there is an inference that all omissions were intended by the legislature.”21
Plaintiff has provided no support for his argument that the term “child”
includes stepchildren. Defendants, on the other hand, have cited to Trievel v. Sabo,
where the Superior Court held that a stepparent could not maintain a suit under the
statute for the death of a stepchild.22 The Court also notes that the legislature took
the time to add a definition of “child” but omitted including stepchildren in the
definition. If the legislature intended on including stepchildren, it could have added
them under the definition at that time. It chose not to. While Plaintiff may be correct
that there may be reasons to include stepchildren under the statute but not stepparents
who do not stand in loco parentis to the stepchild, this is a public policy decision
and not one for this Court to make.23 Any such decisions are best left to the
legislature.
The Court would also note that it is more likely that if a stepchild were to be
able to recover, it would be under § 3724(b), which states that “[i]f there are no
persons who qualify under subsection (a) of this section, an action shall be for the
benefit of any person related to the deceased person by blood or marriage.”24 A
stepchild is one who is related to a stepparent by marriage. Therefore, it likely was
the intent of the legislature to allow a stepchild to recover only in situations where
no one under § 3724(a) was eligible. Thus, a stepchild could not be included in the
definition of “child” under § 3724(a).

16
Trievel v. Sabo, 1996 WL 944981, at *2 (Del. Super. Mar. 13, 1996) (citing Magee v. Rose,
Del. Super. 405 A.2d 143, 146 (1979)).
17
Id.
18
Id.
19
10 Del. C. § 3724(a) (emphasis added).
20
Id. § 3721(1).
21
Leatherbury v. Greenspun, 939 A.2d 1284, 1291 (Del. 2007) (emphasis in the original).
22
See Trievel, 1996 WL 944981, at *5.
23
See id. at *2.
24
10 Del. C. § 3724(b).
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 To the extent that Delaware courts have interpreted that a stepparent not
standing in loco parentis to a stepchild is barred from bringing suit under 10 Del. C.
§ 3724(a), and the legislature has further chosen to define “child” but not include
stepchildren in the definition, the Court finds that the term “child” as used in §
3724(a) does not include stepchildren. The Court’s decision is further supported by
the fact that a stepchild is only related by marriage, unless adopted by the stepparent,
and thus they would fall under § 3724(b).

Leland Brand cannot maintain a suit under the Wrongful Death Act.
Therefore, Defendants Motion for Partial Summary Judgment as to Leland Brand is
GRANTED.

IT IS SO ORDERED.

/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge

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