      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


REBECCA BENSON,                            :
                                           :     C.A. No: K13C-03-042 RBY
              Plaintiff,                   :
                                           :
      v.                                   :
                                           :
EDWIN M. MOW, D.P.M.,                      :
                                           :
              Defendant.                   :


                           Submitted: October 28, 2014
                           Decided: December 4, 2014


            Upon Consideration of Defendant Edwin M. Mow’s, D.P.M.
                               Motion to Dismiss
                                  GRANTED

                                    ORDER

H. Cubbage Brown, Jr., Esquire, Brown Shiels & Beauregard, LLC, Dover, Delaware
for Plaintiff.

Douglas T. Walsh, Esquire, Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware for Defendant Edwin M. Mow, D.P.M.

James E. Drnec, Esquire, and Melony R. Anderson, Esquire, Balick & Balick, LLC,
Wilmington, Delaware for Defendant Bayhealth Medical Center, Inc.



Young, J.
Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

                                   SUMMARY
      With respect to medical negligence actions, Delaware requires strict
adherence to statutory requirements, meant to prevent the filing of lawsuits lacking
merit. Chief among these protections is the necessity of attaching a statutorily
qualified affidavit of merit to the Complaint. That affidavit must be prepared and
executed by an expert, who must meet specific, enumerated qualifications.
Included in those requirements is the need for the expert to be board certified. An
additional protection afforded would-be medical malpractice defendants is the
statute of limitations. The case at bar involves the intersection of these two
Delaware safeguards.
      Rebecca Benson, (“Plaintiff”), was operated on by Dr. Edwin Mow
(“Defendant”), a podiatrist who sought to alleviate her two foot conditions. Dr.
Mow allegedly performed a faulty procedure, that did not correct Plaintiff’s
ailments. Dissatisfied with the care she received, Plaintiff enlisted the services of
another podiatrist. This podiatrist also performed surgery upon Plaintiff, which,
according to Plaintiff, ameliorated her foot problems.
      Seeking recourse against her first physician, the Defendant, Plaintiff filed a
medical negligence suit against him. Significantly, this suit was filed just on the
cusp of the statute of limitations period. Defendant, by his present Motion to
Dismiss, attacks the validity of the affidavit of merit, attached to Plaintiff’s
Complaint. As per Defendant, the affidavit of merit was not executed by a board
certified physician, as is required by the governing statute. The Court finds the
Defendant’s allegation to be correct. As such, the Complaint, filed on the day the

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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

statute of limitations expired, was non-compliant. This action is now time barred.
Thus, Defendant’s Motion to Dismiss is GRANTED.
                               FACTS AND PROCEDURES
      On March 31, 2011, Plaintiff underwent a surgery performed by Defendant, to
correct two foot conditions: (a) symptomatic right foot hallux valgus deformity with
a metatarsal primus varus, deformity of the 1st metatarsal, and; (b) symptomatic 2nd
hammertoe deformity. The surgery was performed at Bayhealth Medical Center, in
Milford, Delaware. According to Defendant, the surgery aimed at alleviating the
hammertoe was unsuccessful. After an additional five months under the care of
Defendant, Plaintiff sought out the services of Dr. Harry S. Tam. On October 23,
2011, Plaintiff underwent an additional surgery, this time performed by Dr. Tam,
which Plaintiff claims corrected the foot conditions Defendant’s surgery had failed
to resolve.
      On March 31, 2013, Plaintiff filed the instant action, alleging medical
negligence against Defendant and Bayhealth Medical Center, Inc. (“Bayhealth”). The
date of the filing was the date on which the statute of limitations expired on Plaintiff’s
action.1 Plaintiff’s Complaint also lacked the required affidavit of merit. However,
this Court granted Plaintiff’s motion to extend time to file an affidavit of merit, and
Plaintiff timely filed the required document on May 23, 2013. The affidavit was
prepared and executed by Dr. Tam, who, according to the affidavit, was a board
qualified physician, but not a board certified physician. The affidavit further indicated



      1
          Pursuant to 18 Del. C. § 6856, a Plaintiff has 2 years to bring a medical negligence suit.

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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

that Dr. Tam would be sitting for certification at a later date.
       On August 15, 2013, service upon Defendant failed. The writ was returned to
the Prothonotary. There is some disagreement between the parties, as to whether
Plaintiff made further attempts to execute service upon Defendant. As per Plaintiff,
service was unsuccessful due to Defendant’s having changed his mailing address. On
July 24, 2014, this Court granted Plaintiff’s motion to extend time to serve Defendant.
Defendant was served on September 3, 2014. In the meantime, on February 18, 2014,
Bayhealth was dismissed from this action. This Court granted Bayhealth’s Motion to
Dismiss, finding that the Complaint failed to “allege any specification of negligence
against [Bayhealth].”2
                                         DISCUSSION
       This Court has granted the Plaintiff in the instant matter many leniencies as she
has proffered her case. At the very start, this Court extended the time to file an
affidavit of merit, thereby, tolling the statute of limitations, permitting Plaintiff’s case
to go forward. Plaintiff did timely file an affidavit of merit, to proceed with her case.
When Plaintiff was unable to serve the Defendant, she was permitted additional time
to serve. Ultimately, she timely served the Defendant.
       Now, Defendant moves to dismiss Plaintiff’s action under two theories. First,
Defendant claims that the action is barred by the statute of limitations, pursuant to 18




       2
           Court’s Order granting Bayhealth’s motion to dismiss, dated February 18, 2014.



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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

Del. Code § 6856.3 The factual circumstances underlying this defense are that,
although Plaintiff filed her Complaint on the date the statute of limitations expired,
this Complaint lacked an affidavit of merit. Defendant’s first theory involves this very
same affidavit of merit. 18 Del. Code § 6853 requires that a complaint sounding in
medical negligence be accompanied by an affidavit of merit. Furthermore, as per 18
Del. Code § 6853(c), this affidavit must be prepared by a board certified physician,
practicing in the same field as the allegedly negligent party. Defendant argues that the
affidavit of merit, filed with both the original and amended Complaint, is deficient.
Specifically, Defendant contends that the physician who executed the affidavit was
not board certified. As per Defendant, it follows that the affidavit could not support
the Complaint. Without a proper affidavit, the Complaint was insufficient and the
statute of limitations was not tolled. Therefore, the entire action is barred.
       Defendant’s second theory, also regarding the statue of limitations, centers
upon Plaintiff’s untimely service. Defendant cites to Delaware case law recognizing
that, although in most cases the filing of a praecipe tolls the statute of limitations, this
is “subject to the qualifications that plaintiff must have a bona fide intent to prosecute
his claim diligently and that there be no unreasonable delay in the service of
process.” 4 Were a plaintiff to cause such an unreasonable delay, “the statute will




       3
          Providing in relevant part: “[n]o action for the recovery of damages upon a claim against
a health care provider...arising out of medical negligence shall be brought after the expiration of
2 years...”
       4
           Biby v. Smith, 272 A.2d 116, 117 (Del. Super. Ct. 1970).

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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

continue to run, despite the filing.”5 Defendant argues that Plaintiff’s eventual
successful service upon him, executed over 11 months after the first thwarted service
attempt, constitutes the unreasonable delay contemplated by Biby and Wilson. This
delay, therefore, prevented the tolling of the statute of limitations, which expired on
the day the Complaint, sans affidavit of merit, was filed.
      For this Court, the determinative factor in this chain of events, is the defective
affidavit of merit. That affidavit reveals that the expert, Dr. Harry Tam, was only
board qualified, not board certified, as required by 18 Del. Code § 6853(c). In fact,
Plaintiff freely admits this, but argues that, since Dr. Tam is now certified, the
affidavit is compliant. Plaintiff further submitted an amended affidavit, as part of her
response to Defendant’s motion, which reflects Dr. Tam’s current certification. This
is, unfortunately, not sufficient to satisfy the call of the statute. 18 Del. Code §
6853(c) provides that the expert must be, “at the time of the affidavit” licensed to
practice medicine. Additionally, in the “3 years immediately preceding the alleged
negligent act,” the expert must have been engaged in the same speciality as the
Defendant. Now, the statue with regard to the certification credential, only states that
the expert must be “certified,” without mention of the precise time period. However,
considering that the requirement of practicing medicine, and of practicing in the
same field as the Defendant, are both time specific and time sensitive, it cannot be
that the Legislature intended that the certification could occur post the filing of the
affidavit. This Court reads the statute to necessitate certification before, or at least,



      5
          Wilson v. Helm, 2004 Del. Super. LEXIS 389 at *3 (Del. Super. Ct. 2004).

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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

at the time of the filing. To interpret the statute otherwise, would fly in the face of the
intent of the Legislature, in enacting a law mandating such an affidavit:
    By requiring the Affidavit of Merit, the General Assembly intended to require
    review of a patient’s claim by a qualified medical professional, and for that
    professional to determine that there are reasonable grounds to believe that the
    health care provider has breached the applicable standard of care that caused
    the injuries claimed in the complaint.6

Given the important motivation behind the statute, an affidavit prepared by a
physician who is not board certified at the time of the affidavit, simply cannot
pass muster. The Court concludes that the affidavit was deficient, upon the filing
of the Complaint.
       The significance of this deficiency, is the second part of the analysis.
Defendant argues that, in the event the affidavit is deficient, this Court’s
extension of the time to file this document, was ineffective in tolling the statute
of limitations. Although there is no Delaware authority precisely articulating this
point, a review of the controlling statutes, naturally brings the Court to this
conclusion. 18 Del. Code § 6853(a) provides that “no healthcare negligence
lawsuit shall be filed in this State unless the complaint is accompanied by” an
affidavit meeting the set out specifications. Plaintiff filed her Complaint on the
day the statute of limitations expired, without the necessary affidavit. It is true
that the time to bring the case properly was extended. However, this was logically

       6
          Beckett v. Beebe Med. Ctr., Inc., 897 A.2d 753, 757 (Del. 2006); see also Sammons v.
St. Francis Hosp., Inc., 2006 WL 1134890, at *4 (stressing that Delaware, unlike other states,
has a “strict statutory protection” requiring that physicians testifying against other physicians in
medical negligence cases, be specially and definitively qualified to provide such expertise).

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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

contingent on the affidavit’s being compliant. That it was not brings into
operation 18 Del. Code § 6856, which provides that medical negligence cases not
filed within the statutory period, are forever barred. The Complaint, although
filed within the proper period, was not statutorily compliant. As a result, Plaintiff
did not commence the action in time.7 Pursuant to the statute of limitations for
such actions, Plaintiff’s suit is now time barred.                Defendant’s motion is
GRANTED.8
                                     CONCLUSION
       Delaware requires its statutes be strictly followed. If a plaintiff wishes to
file a medical negligence claim, her complaint must be accompanied by a
qualifying affidavit of merit. That is, the affidavit must be executed by a board
certified expert. In addition, there is a window of time in which such actions must
be brought. If these steps are not satisfied, the suit must inevitably fail. The
Legislature has made this intent abundantly clear through plain, unambiguous
statutory language. As the Plaintiff failed to meet these statutory necessities,


       7
          At least one Delaware court has tangentially considered the situation before the
Court: whether a defective affidavit of merit that is not amended prior to the expiration of the
statute of limitations, is ripe for granting a motion to dismiss. In Sammons v. St. Francis Hosp.,
Inc., the Court considered this very argument but determined not to permit the filing of an
amended affidavit, despite the statute of limitations not being up, given the expert’s
demonstrated lack of credibility. 2006 WL 1134890, at *1 (Del. Super. Ct. Mar. 31, 2006). In
this Court’s mind, this reflects the understanding that had there not been time to amend the
affidavit within the statute of limitations period, the case would have been barred.
       8
         Having granted Defendant’s motion to dismiss under the deficient affidavit of merit
theory, this Court does not address the issue concerning undue delay of service.


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Benson v. Mow, et. al.
C.A. No.: 13C-03-042 RBY
December 4, 2014

Defendant’s motion is GRANTED.
      IT IS SO ORDERED.


                                     /s/ Robert B. Young
                                                J.
RBY/lmc
oc: Prothonotary
cc: Counsel
     Opinion Distribution
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