IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JEWEL GLOVER, individually and as
Power of Attorney for

ROBERT C. GLOVER C. A. No. NI19C-10-178 MAA
Plaintiffs,

TRIAL BY JURY OF 12
DEMANDED

Vv.

DELAWARE HEALTH CORPORATION
t/a PARK VIEW NURSING &
REHABILITATION COMPANY,

A Delaware corporation,

Defendant.

ORDER
Upon Defendant’s Request to Determine if the Affidavit of Merit
Complies with 18 Del. C. §§ 6853(a)(1) and (c) —
AFFIDAVIT OF MERIT REJECTED
i On November 18, 2019, Defendant filed a motion requesting the Court

review Plaintiff's affidavit of merit, in camera, to determine whether it complies with 18
Del. C. § 6853(a)(1) and (c). Specifically, Defendant asks the Court to review the
affidavit of merit for the following statutory requirements:

a. That it is signed by an expert witness;

b. That it is accompanied by a curriculum vitae;

c. That the affidavit of merit states all its opinions with reasonable

medical probability;
d. That it gives an opinion that there has been healthcare medical
negligence against each defendant;

e. That the expert gives an opinion that each breach against each
defendant was the proximate cause of injuries alleged in the
complaint;

f. That each curriculum vitae establishes that the expert shall be
licensed to practice medicine as of the date of the affidavit;

g. That each curriculum vitae establishes that the expert, for the three
years preceding the negligent act, has been engaged in the
treatment of patients and/or in the teaching/academic side of
medicine in the same or similar field of medicine as these
defendants.!

2. In Delaware, a healthcare negligence lawsuit must be filed with an affidavit
of merit, signed by an expert, and accompanied by the expert’s current curriculum vitae.’
Pursuant to Section 6853(c), the expert must be licensed to practice medicine as of the
affidavit’s date and engaged in the same or similar field as the defendant in the three years

immediately preceding the alleged negligence? The affidavit must also state that

 

I While Defendant states that the field of medicine is “dentistry,” the Court believes
this to be a typographical error.

: 18 Del. C. § 6853(a)(1).

Id. at § 6853(c).
reasonable grounds exist to believe the defendant was negligent in a way the proximately
caused the plaintiffs injury.’

on While the statute’s requirements are minimal°, they are nonetheless
requirements that must be followed. Here, the Court is satisfied that the affidavit is signed
by an expert witness, a registered nurse, and is accompanied by the expert’s curriculum
vitae.© The curriculum vitae, however, appears to be outdated — among other things, it
lists that the expert expects to graduate from her master’s program in 2015. Moreover,
although the curriculum vitae states that the expert has been engaged in treating patients,
it is unclear from the curriculum vitae or the affidavit whether the expert “in the 3 years
immediately preceding the alleged negligent has been engaged in the treatment of
pateints....in the same or similar field of medicine as the defendant” pursuant to 18 Del.
C. § 6853(c).

4, The affidavit also states that its opinions are with a reasonable medical
probability, and gives the expert’s opinion that there has been healthcare medical
negligence against the defendant. The affiant offers no clear opinion, however, that the

negligence proximately caused Mr. Glover’s complications. Rather, the affiant only

 

7 Id.

5 See Willey v. Glasgow Internal Medicine Assoc., P.A., 2018 WL 1050494 (Del.
Super. Feb. 26, 2018).

6 A registered nurse may qualify as an expert “licensed to practice medicine” under
Section 6853. See, e.g., Harris v. Christiana Care Health Serv., Inc., 2006 WL 1148478
(Del. Super. Apr. 13, 2006); Wagner v. Christiana Care Health Serv., Inc., 2015 WL
13697661 (Del. Super. Oct. 15, 2015).
testifies that the purported negligence “caused” injuries to Mr. Glover. Pursuant to
statute, the Court “must be satisfied that the expert is prepared to meet the ‘but for’
proximate cause standard.”’ “Ifthe expert believes Defendant[’s] negligence proximately
caused [Plaintiff's] injuries, the affidavit should say so in simple, clear language.”®
Otherwise, without a proper affidavit, this case must be dismissed.’

5. Because the errors in the affidavit and curriculum vitae may be merely
drafting errors, and the affidavit otherwise substantially complies with the statute, the
Court will allow Plaintiff three weeks from the date of this Order in which to file an
acceptable affidavit “clearly stating that ‘but for Defendant’s negligence, Plaintiff's
[injuries] would not have occurred,’ if that is what the expert believes.”!°
6. If the affidavit and curriculum vitae are amended, the Court will review

them. Ifthe affidavit and curriculum vitae are not perfected in time, the Court will dismiss

the complaint without further notice or opportunity to be heard.

IT IS SO ORDERED this 3rd day of December, 2019.

re ble Méghan A. Adams

/

a Janssen v. Christiana Care Health Sys., Inc., 2015 WL 1057727 (Del. Super. Feb.
10, 2015) (citation omitted).

: Id. (citation omitted).

a Id. (citation omitted).

» Id.

 
