Delaware Business Lawyer Blog

When you’re buying a house, sometimes things go great, and sometimes they don’t. This particular deal I’m going to tell you about started out just as you’d expect. The buyer and the seller signed a sales contract. It shows the sales price, the deposit, the amount of the mortgage the buyer will apply for, and it shows that the sellers will pay 6% the purchase price as settlement help to the buyer. The mortgage company of course received a copy of the contract at the time the buyer applied for the mortgage.

The buyer hired me to be their Delaware setttlement attorney. The mortgage company eventually approved the buyer’s application, and everybody started getting things ready for settlement. On the day of settlement, approximately 1 hour before the time set aside for the closing, the mortgage company sent out their closing instructions and documents. We prepared the HUD-1 in accordance with those instructions, and we sent the HUD-1 to the mortgage company for approval. The buyer and the sellers show up for the closing, and we start going over the figures. The buyer takes a peak at the bottom line - you know, the one that shows how much the buyer has to pay - and it shows that the buyer is getting back $2,500 (half of her deposit). Based on the settlement help from the sellers, this is exactly what the buyer was expecting.

Then we get the call. According to the mortgage company, the kind of mortgage they approved requires the buyer to pay at least 3.5% of the purchase price out of her own pocket. The deposit she paid and the application fee get counted as a part of the 3.5%, but a lot more is required. Once the calculations are done, it turned out that instead of getting back $2,500, the buyer had to pay $3,000. In order to accomplish this, the settlement help from the sellers had to be reduced significantly.

The buyer was shocked and upset. In my next article, I’ll discuss what happened next.

I’ve previously written about preventable medical errors. According to the National Quality Forum (NQF), there are 28 serious healthcare errors that are considered largely preventable. These 28 errors are divided into the following 6 categories:

1. Surgical events (5 types of errors, including surgery performed on the wrong body part)

2. Product or device events (3 types of errors, including patient death or serious disability associated with the use of contaminated drugs, devices, or biologics provided by the healthcare facility)

3. Patient protection events (3 types of errors, including infant discharged to the wrong person)

4. Care management events (8 types of errors, including Stage 3 or 4 pressure ulcers acquired after
admission to a healthcare facility)

5. Environmental events (5 types of errors, including any incident in which a line designated for oxygen or other gas to be delivered to a patient contains the wrong gas or is contaminated by toxic substances)

6. Criminal events (4 types of errors, including death or significant injury of a patient or staff member resulting from a physical assault (i.e., battery) that occurs within or on the grounds of a healthcare facility)

Delaware hospitals no longer charge for medical errors that are recognized by the NQF as serious adverse events. According to the Delaware Healthcare Association, this policy of not charging is supposed to show the people in Delaware that the hospitals are “committed to doing everything possible to assure quality treatment.” They can’t really be serious. First of all, how does not charging a patient for a medical error demonstrate a commitment to quality treatment? More importantly, only 9 out of the 28 serious healthcare errors are on the list of errors that the hospitals won’t charge for. Here’s the list of 9:

(1) surgery on wrong body part
(2) surgery on wrong patient
(3) wrong surgical procedure
(4) retention of foreign object not designed to be retained in body
(5) incompatible blood-associated injury
(6) air embolism-associated injury
(7) medication error leading to serious injury or death
(8) artificial insemination/wrong donor
(9) newborn infant discharged to wrong family

My question is - what about the other 17 medical errors?

In a previous article, I discussed Delaware’s long-arm statute which allows the Court, under certain circumstances, to take jurisdiction over a person or a company that is not a resident of Delaware. In that article, I showed how the non-resident defendant would have to be engaged in conduct that falls within at least one of the activities described in the statute, and the plaintiff’s cause of action has to arise from defendant’s acts. In this article, let’s examine a case where the plaintiff cannot prove that the non-resident defendant performed acts which would make him subject to personal jurisdiction in Delaware, but the plaintiff argues that under a conspiracy theory, the Court can still exercise jurisdiction over the defendant.

Here’s how the conspiracy theory works. The plaintiff tries to show that there was a conspiracy, and that one of the conspirators transacted business in Delaware. The theory is that the transaction of business in Delaware by the conspirator is attributable to the non-resident defendant. The Court considers a co-conspirator to be an agent of the non-resident conspirator.

The Delaware Supreme Court has established a 5-part test for applying the conspiracy theory of personal jurisdiction over non-residents. The Court said:
“We therefore hold that a conspirator who is absent from the forum state is subject to the jurisdiction of the court, assuming he is properly served under state law, if the plaintiff can make a factual showing that:
(1) a conspiracy to defraud existed;
(2) the defendant was a member of that conspiracy;
(3) a substantial act or substantial effect in furtherance of the conspiracy occurred in the forum state;
(4) the defendant knew or had reason to know of the act in the forum state or that acts outside the forum state would have an effect in the forum state; and
(5) the action, or effect on, the forum state was a direct and foreseeable result of the conduct in furtherance of the conspiracy.”

All 5 elements of the test must be met. If, for example, there was no conduct in Delaware in furtherance of a conspiracy, the long-arm statute will not give the Court personal jurisdiction over the non-resident defendant.