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Draper v. Medical Center of Delaware

Dismissal of medical malpractice action reversed and remanded because trial court should have made more of an effort to get case back on track after litigation stalled due to the withdrawal of plaintiff's counsel, especially since plaintiff's attorney had agreed to re-enter an appearance following first remand.

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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.

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