ESTATE OF GLODE REQUA, CAROL FLACH, as Executrix of the ESTATE OF GLODE REQUA, CAROL FLACH, individually and SHIRLEY WADDY, individually, Plaintiffs,
BAYHEALTH MEDICAL CENTER, INC. d/b/a KENT GENERAL HOSPITAL, DELMARVA EMERGENCY PHYSICIANS, LLP, a Limited Liability Partnership, VERONICA R. RIOS, M.D., Individually, and THE FREDERICA VOLUNTEER FIRE CO., a Delaware Corporation, Defendants.
Submitted: May 20, 2019
Review of the Affidavits of Merit DEFERRED
Eason Primos, Judge.
matter involves a healthcare negligence suit filed by
Plaintiffs Estate of Glode Requa, Carol Flach individually
and as Executrix of the Estate of Glode Requa, and Shirley
Waddy (hereinafter collectively "Plaintiffs"),
against Defendants Bayhealth Medical Center, Inc. d/b/a Kent
General Hospital (hereinafter "Moving Defendant"),
as well as Delmarva Emergency Physicians, LLP, Veronica Rios,
M.D., and The Frederica Volunteer Fire Co. (all Defendants
"Defendants"). Moving Defendant has asked the Court to
review the affidavit(s) of merit filed in this case to
determine if it satisfies 18 Del. C. § 6853.
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 the defendant was
negligent in a way that proximately caused the plaintiffs
injury. The affidavit must be filed under seal,
and, upon request, may be reviewed in camera to
ensure compliance with statutory requirements. The
affidavit's requirements are "purposefully
minimal." Affidavits that merely track the statutory
language are deemed sufficient.
case, Plaintiffs filed their Complaint on March 19, 2019, and
submitted affidavits of merit to the Court on the same date.
However, Plaintiffs failed to attach the curricula
vitae of their experts. Plaintiffs note in their
affidavits the purported attachment of the curricula
vitae, but, the Court did not receive any such
attachments in the sealed envelope.
Court acknowledges that Section 6853 requires a plaintiff to
supplement his or her expert affidavit(s) of merit with the
curriculum vitae, and that failure to do so equates
to non-compliance with the statute. Nevertheless, this Court
has discretion in choosing an appropriate sanction for
noncompliance and must balance dismissal with the Court's
strong policy favoring the deciding of cases on the merits.
In another context, the Delaware Supreme Court has observed
that "[t]he sanction of dismissal is severe and courts
are and have been reluctant to apply it except as a last
Delaware Supreme Court in Dishmon, supra, held that
"a failure to enclose the curriculum vitae in a
sealed envelope does not, by itself, justify
dismissal." Rather, "the absent curriculum
vitae should [be] viewed as a procedural deficiency, but
not an independent basis for dismissal." Moreover, as
in Dishmon, there are no facts here to suggest that
Plaintiffs were personally responsible for their
attorney's failure to include the curricula
vitae with the affidavits of merit or that
Plaintiffs' attorney acted in bad faith.
in consideration of the above, Plaintiffs shall be
provided an additional twenty (20) days from the date of this
Order to provide affidavits of merit that comply
with 18 Del. C. § 6853 to avoid dismissal of the
IS SO ORDERED.
 Bayhealth Emergency Physicians, LLC,
and Kent County EMS were also initially named as defendants
but were subsequently dismissed without ...