IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STACIA VICK, CHADVVICK VICK

Plaintiff,
C.A. No. Kl 7C-O9-007 NEP

v. In and F or Kent County

KHAN AND ASSOCIATES PA,
BAYHEALTH INC.,
BAYHEALTH MEDICAL CENTER,

)

)

)

)

§

DR. NASREEN KHAN, )
)

§

and KENT GENERAL HosPITAL )
)

)

Defendant.

Submitted: October 11, 2017
Decided: November 1, 2017

ORDER

This matter involves a healthcare negligence suit filed by Plaintiffs Stacia
and Chadwick Vick (hereinaf`ter “Ms. Vick” and “Mr. Vick,” individually, and
“Plaintiffs,” collectively) against Defendants Dr. Nasreen Khan and Khan
Obstetrics and Gynecology Associates, P.A. (hereinafter “Moving Defendants”), as
Well as Bayhealth Inc., Bayhealth Medical Center, and Kent General Hospital (all
Defendants hereinafter collectively “Defendants”). Moving Defendants have asked

the Court to review the affidavits of merit filed in this case for sufficiency.l

 

l While Moving Defendants ask the Court to determine Whether the affidavits comply With 18
Del. C. § 6854, Delaware law only requires the Court at this stage to determine the affidavits’
sufficiency as relating to § 6853(a)(1) and (c). The Court Will address specific issues of
evidentiary admissibility as they arise.

Plaintiffs claim that Defendants improperly performed surgery on Ms. Vick
and that they did so without Ms. Vick’s consent. Dr. Khan is board-certified in
obstetrics and gynecology.

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 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 requirements5 The affidavit’s requirements are
“purposefully minimal.” 6 Affidavits that merely track the statutory language are
deemed sufficient7

As requested by Moving Defendants, upon the Court’s in camera review, the

Court finds:8

a. Each expert signed the affidavit.
b. Each expert attached his or her current curriculum vitae.

c. Each expert is currently licensed.

 

2 18 Del. C. § 6853(a)(1).

3 Id. § 6853(¢).

4 ld.

5 Id. § 6853(d).

6 Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmorc v. Fucci, 32 A.3d
338, 342 (Del. 2011)).

7 Dishmon, 32 A.3d at 342-43.

8 The Court’s findings are worded in such a way as not to reveal the number of affidavits
submitted, and thereby to honor the Court’s statutory commitment to confidentiality

2

d. Each affidavit shows that the expert is board certified in Obstetrics
and Gynecology.

e. Each expert is currently involved in treating patients and/or the
teaching/academic side of medicine and was so involved for the three
years prior to the alleged negligent acts.

f. Each affidavit states that reasonable grounds exist to believe that
Defendants Dr. Khan and Kent General Hospital breached the
applicable standard of care while treating Ms. Vick and that the

breach was a proximate cause of Ms. Vick’s injuries.

The affidavit(s) address negligence only on the part of Dr. Khan and Kent
General Hospital, and not of Khan Obstetrics and Gynecology Associates, P.A.,
Bayhealth Inc., or Bayhealth Medical Center. This is inconsequential to the Court’s
decision, as Plaintiff’s First Amended Complaint asserts that the liability of Khan
Obstetrics and Gynecology Associates, P.A., Bayhealth lnc., and Bayhealth
Medical Center, at least as to the Medical Negligence count,9 derives from their
capacity as masters of` agents, such as Dr. Khan and other employees, alleged to

have acted negligently in the course of their agency.10

 

9 Only this count, along with the “Medical Malpractice” count, are germane to the Court’s
application of 18 Del. C. § 6853.

10 PlaintifF s First Amended Complaint, 11 32. See Buck v. Nam‘icoke Mem'l Hosp., Inc., 2015 WL
2400537, at *3 (Del. Super. May 19, 2015) (“In 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 the context of a respondeat superior claim because such a
vicarious liability claim does not involve a claim of independent ‘healthcare medical
negligence.”’).

WHEREFORE, in consideration the above, the court finds that the
affidavit(s) of merit comply with 18 Del. C. § 6853(a)(l) and (c).

IT IS SO ORDERED.

/s/Noel Eason Primos
Judge

NEP/sz
Via file & ServeXpress & U.S. Mail
oc. Prothonotary
cc. Counsel of Record
Stacia Vick
Chadwick Vick

