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Buck v. Nanticoke Memorial Hospital, Inc.

Superior Court of Delaware, Kent

May 19, 2015

KAREN BUCK, Plaintiff,
v.
NANTICOKE MEMORIAL HOSPITAL, INC., and KELLY FELIX, Defendants.

Submitted: April 24, 2015 and May 8, 2015

ORDER

Jeffrey J Clark Judge

Upon Review of the Affidavit of Merit

This matter involves a healthcare negligence suit filed by Plaintiff Karen Buck ("Plaintiff") against Defendants Nanticoke Memorial Hospital Inc. ("Nanticoke") and Kelly Felix ("Felix"). Plaintiff claims that she received negligent treatment from the Defendants during her emergency room visit on March 15, 2013.

Specifically, her complaint alleges she received (1) negligent treatment from Felix, a physician's assistant; (2) independently negligent treatment from Nanticoke; and (3) that Nanticoke is vicariously liable for Kelly Felix's actions pursuant to the doctrine of respondeat superior. Defendants Felix and Nanticoke both move for the Court to review the affidavit of merit filed in this case for sufficiency.

In Delaware, a healthcare negligence lawsuit must be filed with an affidavit of merit as to each defendant, signed by an expert, and accompanied by the expert's curriculum vitae.[1] The expert must be licensed to practice medicine as of the affidavit's date and engaged in this practice in the same or similar field as the defendant in the three years immediately preceding the alleged negligence.[2] The affidavit must also state that reasonable grounds exist to believe the defendant was negligent in a way that proximately caused the plaintiff's injury.[3] The affidavit of merit must be filed under seal, but a defendant can request an in camera review of the affidavit to ensure that it complies with the statute's requirements.[4] The Supreme Court has noted that "the General Assembly intended the affidavit of merit merely to operate 'as a prophylactic measure' to 'reduce the filing of meritless medical negligence claims.'"[5] As a result, the requirements for the affidavit of merit are "purposefully minimal."[6] An affidavit of merit that tracks the statutory language complies with the statute.[7]

As requested separately by the Defendants, upon an in camera review of the affidavit of merit and the expert witness's curriculum vitae, the Court finds:

1. The expert signed the affidavit.
2. The expert attached a current curriculum vitae.
3. The expert is currently licensed to practice medicine.
4. The expert is Board certified in Orthopedic Medicine.
5. The expert has been treating patients and supervising staff in the same field as Defendant Felix for well over three years preceding the alleged negligence.
6. The affidavit states that reasonable grounds exist to believe Felix breached the applicable standard of care while treating the Plaintiff and that breach was a proximate cause of the Plaintiff's injuries.
7. The affidavit does not state there are reasonable grounds to believe that the applicable standard of care was breached by Nanticoke nor does the affidavit ...

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