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McNulty v. Correct Care Solutions, LLC

Superior Court of Delaware

April 7, 2017


          Submitted: March 31, 2017

         Upon Defendants' Motion for Reargument - Denied.

          David G. Culley, Esquire

          Dana Spring Monzo, Esquire

          Daniel A. Griffith, Esquire

          Lindsey E. Imbrogno, Esquire


          Abigail M. LeGrow, Judge.

         1. On March 21, 2017, this Court determined that the affidavit of merit filed by Plaintiff, in camera, complied with 18 Del. C. § 6853(a)(1) and (c)[1]as to Defendant Correct Care Solutions, LLC ("Correct Care"). The Court concluded the affidavit of merit set forth a medical expert's opinion that there are reasonable grounds to believe Defendant Correct Care proximately caused the injuries alleged in the complaint. The expert is Board certified in nephrology.

         2. On March 27, 2017, Correct Care timely filed a motion for reargument, contending the affidavit is insufficient because the expert "is Board certified in nephrology, " while "the physicians involved in Plaintiffs medical care are Board certified ... in internal medicine" and the "nurse practitioners [] practice in the field of internal medicine."[2] Correct Care argues that the expert is not qualified to provide an opinion as to the physicians' alleged medical negligence because the expert is not "Board certified in internal medicine, " is not a "practitioner in the field of internal medicine, " and does not "practice in the same area of medicine as Defendants' internal medicine practitioners."[3] On March 29, 2017, Defendant Connections Community Support Programs, Inc. ("Connections") moved to join Correct Care's Motion for Reargument since "all of the points in Correct Care's Motion also apply to Connections."[4]

         3. The purpose of reargument is to allow the Court to reconsider its factual findings and legal conclusions, [5] but a motion for reargument will be denied unless the moving party demonstrates the Court "overlooked controlling principles or misapplied the law or facts in such a way that would change the outcome of the underlying decision."[6] Movants may neither present new arguments nor rehash those already presented.[7]

         4. Correct Care contends the affidavit of merit is insufficient as to any physician or nurse practitioner who is not a nephrologist. Correct Care further contends the expert does not practice in the same or similar field as Defendants. Plaintiff responds that the affidavit of merit establishes the expert, who is from a "similar field of medicine, " shares a "common standard of care" as to the treatment at issue, and, therefore, the affidavit is sufficient.

         5. The statutory requirements for an affidavit of merit are "minimal."[8] The statute's plain language requires that the opining expert "be Board certified in the same or similar field of medicine if the defendant or defendants is Board certified."[9] The term "Board certified" refers to physicians.[10] Plaintiff alleges negligence generally against Correct Care and Connections based on agency principles.[11] Because Defendants are not physicians, the statutory requirement of "same or similar" Board certification is not applicable.[12]

         6. Apart from Board certification, under Section 6853(c), the expert must be "engaged in the treatment of patients and/or in the teaching/academic side of medicine in the same or similar field of medicine as the defendant or defendants."[13] Determining whether an expert is in a "similar" field of medicine as a defendant is a fact-intensive inquiry.[14] The Delaware Supreme Court has held that to qualify as an expert under the statute, the proffered expert need not be proficient in a specific medical field.[15] The Delaware Supreme Court explained in Baoust v. Kraut that "a general practitioner with knowledge or training may be competent to give testimony about a specialty reserved to experts, " because "the diagnosis and treatment of some medical problems may be of concern to doctors of different specialties, and in an area of concurrent expertise, a common standard of care may be shared."[16] Accordingly, to satisfy the statutory requirements, the expert need only "establish his familiarity with the standard of care applicable to the area of medicine practiced by [the] defendants."[17]

         7. The complaint alleges Defendants negligently failed to diagnose and treat Plaintiffs chronic renal failure. As such, this case raises issues involving the standard of care in the field in which the affiant practices. Moreover, the affiant opined that he is a Board certified nephrologist, he "provided and oversaw the treatment of patients with many varied forms and stages of kidney disease" as a practicing nephrologist, his experience includes practicing with doctors and nurses in Defendants' field, and he is "familiar with the applicable standards of care for treating patients who present with initial signs and symptoms of kidney disease." In other words, the affidavit supports the conclusion that kidney disease is an area of concurrent expertise sharing a common standard of care.[18] Therefore, based on the minimal requirements for an affidavit of merit, the nature of the allegations in this case, and the expert's training and knowledge, the expert is qualified under Section 6853 to offer an affidavit of merit as to Connections ...

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