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Willis v. Bayhealth Surgical, Associates

Superior Court of Delaware, Kent

July 9, 2018

JOHN CHARLES WILLIS, and EVELYN HOLLY WILLIS, Plaintiffs,
v.
BAYHEALTH SURGICAL, ASSOCIATES, JOHN F. GLENN, III M.D., and BAYHEALTH MEDICAL CENTER, INC., D/B/A/ KENT GENERAL HOSPITAL, Defendants.

          Submitted: June 29, 2018

         Upon Review of the Affidavit of Merit

          ORDER

          Jeffrey J Clark Judge.

         This 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[1] and Bayhealth Medical Center, Inc. All Defendants request review of the affidavit of merit filed in this case for sufficiency against each Defendant.

         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[2] 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.[3] 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.[4] 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.[5] 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.'"[6] As a result, the requirements for the affidavit of merit are Apurposefully minimal."[7] An affidavit of merit that tracks the statutory language complies with the statute.[8]

         As 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 Associates.

         It 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.

         The 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 ...


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