MICHAEL M. MCNULTY, JR., Plaintiff,
CORRECT CARE SOLUTIONS, LLC, CORRECT CARE SOLUTIONS GROUP HOLDINGS, LLC, and CONNECTIONS COMMUNITY SUPPORT PROGRAMS, INC., Defendants.
Submitted: March 31, 2017
Defendants' Motion for Reargument - Denied.
G. Culley, Esquire
Spring Monzo, Esquire
A. Griffith, Esquire
Lindsey E. Imbrogno, Esquire
Abigail M. LeGrow, Judge.
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)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.
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." 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." 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."
purpose of reargument is to allow the Court to reconsider its
factual findings and legal conclusions,  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." Movants may neither present new arguments
nor rehash those already presented.
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
statutory requirements for an affidavit of merit are
"minimal." 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." The term "Board certified"
refers to physicians. Plaintiff alleges negligence
generally against Correct Care and Connections based on
agency principles. Because Defendants are not physicians,
the statutory requirement of "same or similar"
Board certification is not applicable.
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." Determining whether an expert is in a
"similar" field of medicine as a defendant is a
fact-intensive inquiry. 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. 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." 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]
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. 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 ...