The Supreme Court case against convicted pedophile Earl Bradley has been the hare, moving along at a brisk pace, while a class-action civil suit against Bradley and Beebe Medical Center has been the tortoise, inching its way along.
But now the civil suit is picking up steam after New Castle County Superior Court Judge Joseph Slights III allowed plaintiffs to refile some claims against the Medical Society of Delaware and doctors James Marvel, Carol Tavani, Lowell Scott, John Ludwicki and Nicholas Berg from the suit.
Class attorney Craig Karsnitz said it was important that Slights did not completely dismiss the society and the doctors, because it allows the chance to prove they can be held responsible.
The medical society and the doctors were named in the suit because the plaintiffs allege they had knowledge and information related to Bradley’s sexual assaults against his patients but failed to report them.
In his opinion, Slights agreed with the defendants’ argument that they had no “special relationship” with Bradley – meaning they had no control or authority over his actions. The medical society is not a regulatory body, but a nonprofit association of Delaware physicians. On these grounds, the doctors and the medical society were partially dismissed from the suit.
However, Slights did not entirely let the doctors and the medical society off the hook. He denied their motion to dismiss some claims, citing new allegations by the plaintiffs that certain defendants had committed themselves to a duty to protect pediatric patients from harm.
Tavani and Marvel, the plaintiffs allege, were told by Bradley's sister, Lynda Barnes, that Bradley was improperly touching patients. Barnes also reported to Tavani and Marvel that her brother's mental condition and professional practice were falling apart. However, the plaintiffs say, none of this information was relayed to the Board of Medical Practice, which regulates doctors, or to Delaware State Police.
Ludwicki, who worked with Bradley at Beebe and shared office space with him for seven months, was interviewed, along with his staff, by Milford Police Department in a 2005 investigation of suspected misconduct by Bradley. The plaintiffs allege Ludwicki, through reports to his staff, had knowledge that Bradley was a pedophile, but did not report it to authorities.
Scott, according to Slights' opinion, had referred to Bradley as a pedophile while speaking to other physicians as early as 2001. Defendant Berg was an ear, nose and throat specialist at Bayside Health Association with Bradley and Scott.
“These allegations, if proven, would be sufficient to trigger a duty on the part of the physicians/defendants who undertook to protect patients to discharge that duty with reasonable care,” Slights said.
Slights decision states the plaintiffs failed to prove negligence on the part of the doctors, but he allowed for an amended complaint based on common law or medical negligence against the individual doctors. To prove negligence, a plaintiff must prove that the defendant owed a duty of care and breached that duty, causing injury to the plaintiff, but Slights left the door open to allow the plaintiffs to prove defendants owed a duty of care.
Plaintiff’s attorney Chase Brockstedt said a second amended complaint has been filed.
Collins Seitz, attorney for the medical society, was not available for comment.
Bradley and Beebe, also named in the class action suit, did not move to dismiss claims against them.
Kelly Griffin, spokeswoman for Beebe Medical Center, could not be reached for comment.
This is the second time Slights has considered whether to dismiss the medical society and the doctors from the suit. In the first case, decided in February, Slights dismissed the defendants from the case but allowed the plaintiffs to amend their complaint.
In September, Slights heard the second round of arguments but did not issue an opinion until March 29. That opinion was under seal until May 8 when a redacted version was released to the public.
Beebe, Bradley victims still talking
Attorneys for the class and Beebe have been talking about potentially settling the case, although no settlement has been reached.
Wilmington attorney Bruce Hudson, who represents more than 40 members of the class, said notice has gone out to Bradley's former patients asking to join the class and hundreds of responses have been received. Attorneys for the class have not yet asked for a trial date.
When asked whether the suit could be settled out of court, Hudson said, "I don't have a crystal ball, but hope springs eternal."
He said a settlement would be ideal because it would spare Bradley's victims from having to testify in court. However, Hudson added, the objective is to receive fair and just compensation for the victims.
Karsnitz said attorneys are working hard with Beebe’s attorneys and insurance carriers, as well as those for the medical society to create a fund to compensate the victims. While nothing has been resolved yet, he said the talks have been productive.
Supreme Court update
Meanwhile, attorneys for Bradley have filed their final brief in advance of oral arguments before the Delaware Supreme Court.
Bradley's appeal team, Robert Goff and Nicole Walker of the Public Defender's Office, is asking the court to overturn the guilty verdict against Bradley. They reiterate their argument that Delaware State Police conducted an illegal search of Bradley's BayBees Pediatrics office where they found computer files with video of Bradley sexually assaulting children.
In their reply brief, filed April 24, Bradley's attorneys said police, who first conducted a limited searched Bradley's property Dec. 16, 2009, looking for eight patient files, did not know the names of the patients whose records they were searching for.
Bradley's attorneys said police "conducted a dragnet unauthorized by the narrow language of the warrant and unjustified by the cause provided in its affidavit." In addition, they say, the Attorney General's Office has had an amorphous and evolving definition of a medical file.
"A search for a medical file, as it is plainly understood to be, does not support the unbridled search at the scene engaged in by the police," the brief says.
Oral arguments before the Supreme Court are scheduled to begin Wednesday, June 13.
Sheriff sale of Bradley property set
Earl Bradley's house at 344 Savannah Rd. in Lewes will be going up for sheriff sale, 9:30 a.m., Tuesday, May 15 at the Sussex County Sheriff's Office, 22215 DuPont Blvd. in Georgetown.
The house was foreclosed on by U.S. Bank, which Bradley owes $560,000 in mortgage payments and late fees. Bradley has not lived at the house since his arrest in December 2009.
Bradley's BayBees Pediatrics office was similarly foreclosed on by Fulton Bank and sold at sheriff sale last year. The property was eventually purchased by Realtor Bruce Guyer and the buildings demolished on Oct. 10.