      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BRIDGET HYLAK as Power of           )
Attorney for MARLENE HYLAK,         )
                                    )
     Plaintiff,                     )
                                    )
     v.                             )         C.A. No. N17C-04-148 ALR
                                    )
MANOR CARE – PIKE CREEK             )
OF WILMINGTON, DE, LLC, a           )
Delaware Limited Liability Company, )
                                    )
     Defendants.                    )

                              Submitted: June 19, 2020
                               Decided: July 14, 2020

                Upon Defendant’s Motion for Summary Judgment
                                  DENIED

                                      ORDER

      Upon consideration of Defendant’s motion for summary judgment and

Plaintiff’s response in opposition; the Superior Court Rules of Civil Procedure; the

Delaware Rules of Evidence; the facts, arguments, and legal authorities set forth by

the parties; decisional law; and the entire record in this case, the Court hereby rules

as follows:

      1.      This civil lawsuit arises out of medical care received by Marlene Hylak

at Defendant’s nursing home/long-term-treatment facility. Plaintiff, as power of

attorney for Ms. Hylak, alleges that Ms. Hylak suffered injuries to her hip as a result

of Defendant’s negligent nursing care. The deadline for Plaintiff’s expert reports
was December 31, 2019.1 Among other reports not relevant to the instant motion,

Plaintiff produced the report of Elizabeth Ridgley, Plaintiff’s sole liability expert.

Ms. Ridgley is a Registered Nurse.

      2.     Defendant now moves for summary judgment arguing that Ms. Ridgley

is not qualified to testify regarding the applicable standard of care because Ms.

Ridgley lacks experience in the skilled nursing and long-term care settings. Because

Ms. Ridgley is not qualified, Defendant argues, Plaintiff cannot satisfy the initial

burden of proving a deviation from the standard of care, an element that must be

supported by expert testimony in Delaware.2

      3.     The Court may grant summary judgment only where the moving party

can “show that there is no genuine issue as to any material fact and that the moving

party is entitled to judgment as a matter of law.”3 A genuine issue of material fact

is one that “may reasonably be resolved in favor of either party.”4 The moving party

bears the initial burden of proof and, once that is met, the burden shifts to the non-

moving party to show that a material issue of fact exists.5 At the motion for summary

judgment phase, the Court must view the facts “in the light most favorable to the


1
  See D.I. 52.
2
  18 Del. C. § 6853(e) (“No liability shall be based upon asserted negligence unless
expert medical testimony is presented as to the alleged deviation from the applicable
standard of care in the specific circumstances of the case . . . .”).
3
  Super. Ct. Civ. R. 56(c).
4
  Moore v. Sizemore, 405 A.2d 679, 680–81 (Del. 1979).
5
  Id.
                                           2
non-moving party.”6 Summary judgment is appropriate only if Plaintiff’s claims

lack evidentiary support such that no reasonable jury could find in Plaintiff’s favor.7

      4.     Section 6854 of Title 18 of the Delaware Code requires that a medical

expert testifying as to the standard of care be “familiar with the degree of skill

ordinarily employed in the field of medicine on which he or she will testify.”8 When

a witness’s qualifications are challenged under Section 6854, the burden is on the

party proffering the witness to establish that the witness meets Section 6854’s

requirements.9

      5.     Generally, a medical professional in one school of medicine is not

competent to testify about the standard of care in a different school of medicine.10

That general rule gives way, however, when “the methods of treating a particular




6
  Brozka v. Olson, 668 A.2d 1355, 1364 (Del. 1995).
7
   See Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1200–05 (Del.
2015); Edmisten v. Greyhound Lines, Inc., 2012 WL 3264925, at *2 (Del. Aug. 13,
2012).
8
  18 Del. C. § 6854 (“No person shall be competent to give expert medical testimony
as to applicable standards of skill and care unless such person is familiar with the
degree of skill ordinarily employed in the field of medicine on which he or she will
testify.”).
9
  See Loftus v. Hayden, 391 A.2d 749, 753 (Del. 1978) (“When objection is made to
[a medical expert’s] qualification, the witness must present facts from which the
Court can reasonably conclude that the witness has the foundation essential to the
expertise which he claims.”).
10
    Miller v. Christiana Care Health, Servs., Inc., 2018 WL 4705932, at *3 (Del.
Super. Sept. 28, 2018); Hurley v. Med. Ctr. of Del., Inc., 1988 WL 130399, at *1
(Del. Super. Nov. 28, 1988).
                                          3
ailment are generally the same in either school.”11 Plaintiff argues that the medical

setting in which Ms. Ridgley has nursing experience is not relevant to the standard

of care in this case. Plaintiff argues that Ms. Ridgley’s years of experience in nursing

generally, along with her education, training, and experience as a nursing educator

in a hospital’s rehabilitation unit, make her competent to opine about the standard of

care applicable to rehabilitation nurses, regardless of the types of medical facilities

in which she has worked. Defendant argues that Ms. Ridgley must have experience

in the skilled nursing and long-term care setting to be qualified to opine about the

standard of care applicable to nurses in those settings.

      6.     This Court addressed similar arguments in Miller v. Christiana Care

Health Services, Inc.,12 a medical negligence case involving emergency-room

doctors. Following an emergency-room visit that ended with a patient’s death, the

patient’s estate brought a medical negligence action against the hospital.13 The estate

offered the testimony of two standard of care experts who did not practice emergency

medicine but nonetheless had experience with the patient’s underlying medical

condition.14 In support of its motion for summary judgment, the hospital argued that

the experts’ lack of experience in the emergency-room setting rendered them



11
   Hurley, 1988 WL 130399, at *2; accord Miller, 2018 WL 4705932, at *3.
12
   2018 WL 4705932.
13
   Id. at *1.
14
   Id. at *2.
                                       4
unqualified under Section 6854.15 This Court disagreed, finding that differences in

medical specialties or the setting of care between the treating professional and the

medical expert do not alone make the expert unqualified.16 Both experts testified

that the applicable standard of care was the same across medical specialties and does

not change based on the setting of care.17 Based on that testimony, the Court found

that the experts were qualified to testify and denied the hospital’s motion.18

      7.     Here, Ms. Ridgley, by affidavit, attests that she not only has “provided

care to patients similar to Ms. Hylak” but also has “provided nursing care to patients

who have undergone [the procedure from which Ms. Hylak was recovering] over

100 times.”19 Based on that experience, Ms. Ridgley confirms that the “standards of

care are not different in a hospital or in a skilled rehabilitation facility with respect

to postoperative care of these types of patients.”20 Ms. Ridgley’s affidavit also states

that a hip precaution, the procedure involved in this case, is a “standard nursing

procedure” that “does not differ from facility to facility.”21 Thus, like the estate in

Miller, Plaintiff has offered evidence showing that the applicable standard of care




15
   Id.
16
   Id. at *3–4.
17
   Id.
18
   Id.
19
   Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. Ex., at 2.
20
   Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. Ex., at 2.
21
   Pl.’s Resp. Opp’n Def.’s Mot. Summ. J. Ex., at 2.
                                        5
does not change based on medical specialty or setting of care.22 Therefore, while

Defendant is entitled to challenge Ms. Ridgley’s testimony at trial, Defendant is not

entitled to summary judgment because Plaintiff has produced evidence showing Ms.

Ridgley is qualified to testify under Section 6854.

        NOW, THEREFORE, this 14th day of July 2020, Defendant’s motion for

summary judgment is DENIED.

        IT IS SO ORDERED.

                                                                                                                                  Andrea L. Rocanelli
                                               ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                               The Honorable Andrea L. Rocanelli




22
     See Miller, 2018 WL 4705932, at *4.
                                           6
