Submitted: June 29, 2018
Review of the Affidavit of Merit
Jeffrey J Clark Judge.
matter involves a healthcare negligence suit filed by
Plaintiffs John Willis and Evelyn Willis (APlaintiffs@)
against Defendants Bayhealth Surgical Associates, John F.
Glenn, III, M.D., and Bayhealth Medical Center, Inc.
(hereinafter collectively referred to as
"Defendants"). Plaintiffs allege negligent medical
care arising from treatment in June 2016. Their claims
include direct claims for medical negligence against all
three defendants. Plaintiffs also fairly raise claims of
vicarious liability as to Defendants Bayhealth Surgical
Associates and Bayhealth Medical Center, Inc. All
Defendants request review of the affidavit of merit filed in
this case for sufficiency against each Defendant.
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 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. The affidavit must also state that
reasonable grounds exist to believe that each defendant was
negligent in a way that proximately caused the
plaintiff's injury. The affidavit of merit must be filed
under seal, but a defendant may request an in camera
review of the affidavit to ensure that it complies with the
statute's requirements. The Delaware Supreme Court has
noted that Athe General Assembly intended the affidavit of
merit merely to operate 'as a prophylactic measure'
to 'reduce the filing of meritless medical negligence
claims.'" As a result, the requirements for the
affidavit of merit are Apurposefully
minimal." An affidavit of merit that tracks the
statutory language complies with the statute.
requested, 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 in
the State of Delaware.
4. The expert is board certified in family medicine.
5. The expert has been treating patients in the same field as
the three Defendants for over three years, including the
three years immediately preceding the alleged negligent
conduct. Namely, the affidavit and accompanying
curriculum vitae specifically reference the
expert's experience in wound care.
6. The affidavit states that reasonable grounds exist to
believe that Defendant Bayhealth Medical Center, Inc. and
Defendant John Glenn, M.D., breached the applicable standard
of care while treating the Plaintiff and that the breaches
were a proximate cause of the Plaintiffs= injuries. The
affidavit does not address Defendant Bayhealth Surgical
therefore follows that the affidavit of merit complies with
18 Del. C. § 6853(a)(1) and (c) as to
allegations involving Defendants John Glenn, M.D., and
Bayhealth Medical Center, Inc.'s treatment of Plaintiff
John Willis's wounds. While the expert providing the
affidavit of merit was not a surgeon, the Court concludes
that based on the doctor's recited experience in wound
care as a board certified family medicine doctor, he or she
has experience in a similar field of medicine in the relevant
field (as to wound care) for more than three years preceding
the alleged negligence.
affidavit of merit does not address Defendant Bayhealth
Surgical Associates. Accordingly, it follows that it is not
sufficient as to any claims of direct negligence or
recklessness against Defendant Bayhealth Surgical Associates.
Furthermore, after review, the Court finds that the
expert's recited experience does not qualify him or her
as being an expert in the same or similar field as hospital
or facility management. Count III of Plaintiff's
complaint includes allegations that Defendant Bayhealth
Medical Center, Inc. improperly trained and supervised its
personnel, and adopted unreasonable ...