       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


JOHN CHARLES WILLIS, and                   :
EVELYN HOLLY WILLIS,                       :
                                           :
                    Plaintiffs,            :          K18C-05-031 JJC
                                           :          In and for Kent County
                    v.                     :
                                           :
BAYHEALTH SURGICAL,                        :
ASSOCIATES, JOHN F. GLENN, III             :
M.D., and BAYHEALTH MEDICAL                :
CENTER, INC., D/B/A/ KENT                  :
GENERAL HOSPITAL,                          :
                                           :
                    Defendants.            :


                                       ORDER

                               Submitted: June 29, 2018
                                Decided: July 9, 2018

                         Upon Review of the Affidavit of Merit

      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

1
  The Court recognizes Defendant Bayhealth Medical Center, Inc.’s representation in its motion
that Bayhealth Surgical Associates is not a legal entity. For purposes of this review, however, the
Court must accept as true the Plaintiffs’ allegations that Bayhealth Surgical Associates is a separate
entity.
2
  18 Del. C. § 6853(a)(1).
3
  Id. at § 6853(c).
4
  Id.
5
  18 Del. C. § 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
   Id.
8
  See Dishmon, 32 A.3d at 342.


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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.



                                          3
      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 policies and procedures. These allegations
focus on alleged facility level negligence (as opposed to direct care allegations) and
are not supported by the affidavit.
      In the interest of justice, the Plaintiffs are granted thirty days to supplement
the record with an affidavit of merit meeting the statutory requirements for
sustaining a healthcare negligence action against Defendants Bayhealth Medical
Center, Inc, and Bayhealth Surgical Associates involving claims of improper hiring,
supervision, training, and facility management. In the absence of a sufficient
supplemental affidavit of merit addressing those issues, allegations of negligence
based upon facility related management practices against all Defendants shall be
deemed dismissed without the need for further action by the Defendants. In addition,
because its affidavit of merit does not address Defendant Bayhealth Surgical
Associates, the Plaintiffs are likewise provided thirty additional days to supplement
as to that entity. Finally, if Plaintiffs file a supplemental affidavit or affidavits, the
Court will review them for sufficiency and issue a supplemental order without the
need for the Defendants to file an additional motion.
      For purposes of the limited review required by the statute, Plaintiffs’ affidavit
sufficiently supports their claims against Defendants John Glenn and Bayhealth
Medical Center, Inc. to the extent they are based upon direct care involving allegedly


                                            4
negligent and reckless wound care. Likewise, Plaintiffs allegations relating to
vicarious lability that would follow if Defendant John Glenn was an employee of
Defendants Bayhealth Surgical Associates and Bayhealth Medical Center, Inc. are
not dismissed as a result of this review.9
       IT IS SO ORDERED
                                                    /s/ Jeffrey J Clark
                                                        Judge




9
  Plaintiffs appear pro se and paragraph 7 of their complaint alleges that Defendant Glenn was
employed by Defendants Bayhealth Surgical Associates and Bayhealth Medical Center during
times relevant to the allegations in the complaint. Given the deference due a pro se filing, the
Court finds that such allegations fairly raise issues of respondeat superior. Such claims are not
claims of independent medical negligence “committed by” a particular defendant and therefore
need not be directly supported by an affidavit of merit. See Buck v. Nanticoke, 2015 WL 2400537,
at *2 (Del. Super. May 19, 2015) (holding that “[i]n recognition of the derivative nature of the
potential liability imposed pursuant to a respondeat superior claim, the Court concludes that
section 6853 does not apply in [such a] context because . . . a vicarious liability claim does not
involve a claim of independent ‘healthcare medical negligence.’”).

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