McCann-Cross v. Bayhealth Kent General Hospital

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE ESTATE OF DONNINE )
MCCANN-CROSS, )
)
and )
)
DONICHA MCCANN-CROSS, )
)
Plaintiffs, ) C.A. No.: K24C-12-008 NEP
)
v. )
)
BAYHEALTH KENT GENERAL )
HOSPITAL, )
)
Defendant. )

Submitted: December 10, 2024
Decided: December 26, 2024

ORDER

Upon Plaintiff’s Application to Proceed in Forma Pauperis
GRANTED

Upon Court’s Consideration of Complaint
DISMISSED

Upon consideration of Plaintiffs’ complaint and the motion to proceed in
forma pauperis of Plaintiff Donicha McCann-Cross (“Ms. McCann-Cross”), the
Court finds as follows:
1. On December 6, 2024, Ms. McCann-Cross filed an application to
proceed in forma pauperis. The affidavit attached indicated that Ms. McCann-Cross
had no assets or income and was presently unemployed. The affidavit alleged facts
sufficient to convince the Court that Ms. McCann-Cross is unable to pay the filing
costs and her application to proceed in forma pauperis is therefore GRANTED.
2. Upon review of Plaintiffs’ complaint, the Court finds that it is legally
frivolous, and, even if not frivolous, is barred by the statute of limitations. It is
therefore DISMISSED.
3. The Court views pro se in forma pauperis civil suits generously. “All
well-pled matters are accepted as true to determine whether . . . [Plaintiffs] can
recover under any conceivable circumstances susceptible of proof under the
complaint.”1 Nonetheless, the Court will not allow itself or prospective defendants
“to become the victim[s] of frivolous or malicious claims which on their face are
clearly: [sic] subject to a motion to dismiss under Superior Court Civil Rule 12(b)(6)
or subject to a defense of immunity or subject to some other defect.”2 After granting
an application to proceed in forma pauperis, the Court must dismiss the underlying
complaint if it is legally frivolous, factually frivolous, or malicious.3 A claim is
legally frivolous when it is “based on an indisputably meritless legal theory.”4
4. On December 6, 2024, Plaintiffs brought suit against Defendant “for
violating HIPPA [sic] law and falsifying documents.”5 These allegations revolve
around a February 20, 2021, CT scan of Ms. McCann-Cross’s late sister, Donnine
McCann-Cross (“Decedent”).6 Plaintiffs allege that, in connection with this
procedure, Defendant “violated the Health Insurance Portability and Accountability
Act and Falsified [sic] documents . . . because [Decedent] was not alert and oriented

1
Fatir v. Records, 2023 WL 6622214, at *2 (Del. Super. Oct. 11, 2023) (quoting Johnson v.
Howard, 1999 WL 743902, at *1 (Del. Aug. 12, 1999)).
2
Lee v. Johnson, 1996 WL 944868, at *1 (Del. Super. June 4, 1996) (emphasis in original).
3
Sanders v. Dep’t of Just., 2020 WL 1171045, at *1 (Del. Super. Mar. 11, 2020) (citing 10 Del.
C. § 8803(b)).
4
Id. (quoting 10 Del. C. § 8801(7)).
5
Compl. ¶ 1.
6
Compl. ¶¶ 2–3.
2
to sign a patient authorization and release on February 20, 2021 [sic] at 6:38 pm,”7
when Dr. Joseph G. Livingston, MD signed the “diagnostic imaging report”
concerning that procedure.8 Plaintiffs assert that Decedent “could not have given
[Defendant] permission to perform any procedures on her or give [Defendant]
permission to send any specimen . . . to any non-affiliated external health facilities
or entities[.]”9 Plaintiffs request “4 million dollars for violating the HIPPA [sic] law
with the deceased Donnine McCann-Cross.”10
5. Plaintiffs’ claim is legally frivolous because the Health Insurance
Portability and Accountability Act of 1996 (“HIPAA”) did not create a private cause
of action.11 In other words, an alleged violation of HIPAA does not, standing alone,
give Plaintiffs the right to sue Defendants. While Plaintiffs’ reference to “falsified

7
Compl. ¶ 2.
8
Compl. Ex. 1. The report appears to refer to the time that Dr. Livingston reviewed the CT scan
and provided his “impressions” thereof, rather than the time Decedent would have given consent
to the procedure. However, interpreting the complaint in the light most favorable to Plaintiffs, the
Court assumes that Decedent would also have been incapable of giving consent at that earlier time.
This factual ambiguity has no bearing on the Court’s analysis.
9
Compl. ¶ 3. This is a reference to a portion of the report stating that “DICOM format image data
are available to non-affiliated external healthcare facilities or entities on a secure, media-free,
reciprocally searchable basis with patient authorization for at least a 12-month period after the
study.” Compl. Ex. 1. It is not clear whether this language means that Decedent’s CT images
were actually made available because she had given authorization (or, as Plaintiffs allege, despite
her failure to do so) or whether the images could be made available in the event that she gave
consent to share them with other healthcare providers. The Court assumes the former
interpretation for the purposes of this Order, and this factual ambiguity, again, has no bearing on
the Court’s analysis.
10
Compl. ¶ 4.
11
See Fanean v. Rite Aid Corp. of Delaware, 984 A.2d 812, 817–18 (Del. Super. 2009)
(reaffirming the Court’s earlier decision that the plaintiff could not raise a negligence per se claim
under HIPAA); Beckett v. Grant, 2022 WL 485221, at *3 (3d Cir. Feb. 17, 2022) (“HIPAA does
not provide a private cause of action.”) (citing Meadows v. United Servs., Inc., 963 F.3d 240, 244
(2d Cir. 2020)); Burton v. Rite Aid Pharmacy, 2010 WL 1924478, at *3 (D. Del. May 12, 2010))
(“HIPAA fails to provide for a private federal remedy . . . . Therefore, the Court will dismiss the
Complaint as frivolous[.]”); Polanco v. Omnicell, Inc., 988 F.Supp. 2d 451, 468 (D.N.J. 2013)
(collecting cases).
3
documents” could be taken to indicate that Plaintiffs intended to bring suit on a
second basis, Plaintiffs seek recovery only for an alleged HIPAA violation.12
6. If the Court interpreted Plaintiffs’ complaint to bring a second claim for
“falsifying documents,” this would not prevent the Court from dismissing the
complaint, as this is also a legally frivolous claim. HIPAA did not create a private
cause of action for falsifying documents.13 To the extent that Plaintiffs intended to
bring a “falsifying documents” claim under state law, such a claim must also fail, as
the Court is unaware of any stand-alone Delaware tort matching that description.14
Finally, even if the Court were to construe Plaintiffs’ hypothetical claim as sounding
in fraud, the claim would be time-barred because fraud claims are subject to a three-
year statute of limitations, and Plaintiff’s claim accrued more than three years before
her filing.15
WHEREFORE, in light of the preceding considerations, Plaintiffs’ motion
to proceed in forma pauperis is GRANTED, and the complaint is DISMISSED.
IT IS SO ORDERED.

NEP/tls
Via File & ServeXpress and U.S. Mail
oc: Prothonotary
Donicha McCann-Cross (Address: 433 Northdown Dr, Dover, DE 19904)
12
Compl. ¶ 4.
13
See Bigham v. Wexford Health Sources, Inc., 2021 WL 230366, at *8 (D. Md. Jan. 22, 2021)
(dismissing the plaintiff’s claim that the defendant “falsified [plaintiff’s] medical records” in
violation of HIPAA).
14
Cf. Caravetta v. Marefat, 2013 WL 6157921, at *4 (E.D. Va. Nov. 22, 2013) (dismissing a
plaintiff’s claim for falsification of records under Virginia law because the court was unable to
find any Virginia case recognizing such a cause of action).
15
Jeter v. RevolutionWear, Inc., 2016 WL 3947951, at *9 (Del. Ch. July 19, 2016) (citing 10 Del.
C. § 8106).
4