           IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIFFANY COX and ALPHONSO                     )
KEMP, as Parents and natural guardians       )    C.A. No. K19C-11-002 NEP
of K.K., a minor,                            )    In and For Kent County
                                             )
                  Plaintiffs,                )
                                             )
      v.                                     )
                                             )
BAYHEALTH MEDICAL CENTER,                    )
INC., a Delaware Corporation, ROBERT         )
Q. SCACHERI, M.D., BEVERLY A.                )
SANTANA, MSN, CNM and                        )
DEDICATED TO WOMEN OB-GYN,                   )
P.A.,                                        )
                                             )
                  Defendants.                )

                           Submitted: March 23, 2020
                            Decided: April 30, 2020

                                    ORDER

                     Upon Review of the Affidavits of Merit
                                ACCEPTED

      This matter involves a healthcare negligence suit filed by Plaintiffs Tiffany

Cox and Alphonso Kemp, as parents and guardians of K.K., a minor child, against

Defendants Robert Scacheri, M.D., Beverly Santana, MSN, CNM, Bayhealth

Medical Center, Inc., and Dedicated to Women OB-GYN, P.A., (all Defendants

hereinafter collectively "Defendants"). Defendant Bayhealth Medical Center, Inc.



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(hereinafter “Moving Defendant”) has asked the Court to review the affidavits of

merit filed in this case to determine whether they satisfy 18 Del. C. § 6853.

       Plaintiffs filed their Complaint on November 1, 2019, alleging that

Defendants were medically negligent and breached the applicable standards of care,

and that as a result, K.K. suffered severe and permanent hypoxic ischemic brain

injury. The Complaint alleges that Moving Defendant provides health-related

services to the general public.

       On March 3, 2020, this Court issued an Order finding that two of the three

affidavits of merit applicable to Moving Defendant failed to satisfy statutory

requirements because the curriculum vitae of each expert appeared to be out of date.1

The Court deferred decision on those two affidavits, giving Plaintiffs an additional

twenty-one days from the date of its Order to bring the affidavits of merit into

compliance with 18 Del. C. § 6853(c), i.e., by providing current curricula vitae.

Plaintiffs have timely done so, and thus the updated affidavits of merit are discussed

below.

       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

current curriculum vitae.2 The expert must be licensed to practice medicine as of


1
  See Cox v. Bayhealth Medical Center, Inc., 2020 WL 1127545, at *2 (Del. Super. Mar. 3, 2020)
(curricula vitae of expert who was a physician and expert who was a registered nurse and certified
nurse midwife did not appear to be current). The Court found that the affidavit of merit of the
third expert, a registered nurse, complied with 18 Del. C. § 6853(a)(1) and (c). Id.
2
  18 Del. C. § 6853(a)(1).
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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, and

Board certified in the same or similar field as the defendant if the defendant is Board

certified.3 The affidavit must also state that reasonable grounds exist to believe that

the defendant was negligent in a way that proximately caused the plaintiff's injury. 4

The affidavit must be filed under seal and, upon request, may be reviewed in camera

to ensure compliance with statutory requirements.5 The affidavit's requirements are

"purposefully minimal."6 Affidavits that merely track the statutory language are

deemed sufficient.7

       With regard to the two affidavits of merit that were deferred by the Court’s

March 3, 2020, Order, the Court has performed an in camera review.

       Turning to the first expert, a physician, the Court finds as follows:

       a. The expert signed the affidavit.


3
  Id. § 6853(c). Of course, these requirements apply only if the expert is a physician, and the
requirements regarding “same or similar field” apply only if the defendant is a physician. McNulty
v. Correct Care Solutions, LLC, 2017 WL 1323711, at *2 (Del. Super. Apr. 7, 2017) (requirement
of “same or similar” Board certification does not apply where defendant is not a physician); accord
Zappaterrini v. St. Francis Hosp., Inc., 2009 WL 1101618, at *1) (Del. Super. Apr. 22, 2019)
(“[B]ecause the defendant is not a physician, the statutory requirement of similar Board
certification is not applicable.”). Here, Plaintiffs allege negligence against Moving Defendant
based on agency principles. Thus, the statutory requirements of “same or similar” Board
certification, and practice in the “same or similar field,” are not applicable because Moving
Defendant is not a physician. Moreover, all three experts in the present case may speak to whether
Moving Defendant was negligent.
4
  18 Del. C. § 6853(c).
5
  Id. § 6853(d).
6
  Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmon v. Fucci, 32 A.3d 338,
342 (Del. 2011)).
7
  Dishmon, 32 A.3d at 342–43.
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b. The current curriculum vitae of the expert is attached.

c. The expert was licensed to practice medicine as of the date of the affidavit.

d. Although the “same or similar field” requirements are not applicable

   because Moving Defendant is not a physician, the expert is Board certified

   in the fields of Obstetrics and Gynecology and Maternal-Fetal Medicine

   and has experience in those areas.

e. The affidavit states that reasonable grounds exist to believe that Moving

   Defendant, along with the other Defendants, breached the applicable

   standard of care, and that the breaches were a proximate cause of the

   injuries to K.K.

As for the second expert, the Court finds as follows:

a. The expert signed the affidavit.

b. The current curriculum vitae of the expert is attached.

c. The expert, who is a registered nurse and certified nurse midwife, has

   training and experience in those fields.

d. The affidavit states that reasonable grounds exist to believe that Moving

   Defendant, along with the other Defendants, breached the applicable

   standard of care, and that the breaches were a proximate cause of the

   injuries to K.K.




                                      4
      WHEREFORE, in consideration of the above, the Court finds that the two

affidavits of merit previously deferred by the Court’s Order of March 3, 2020,

comply with 18 Del. C. § 6853(a)(1) and (c).

      IT IS SO ORDERED.


                                               /s/ Noel Eason Primos
                                                        Judge


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