        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                           IN AND FOR KENT COUNTY

KAREN BUCK,                            :
                                       :       C. A. No. K15C-03-012 JJC
             Plaintiff,                :
                                       :
      v.                               :
                                       :
NANTICOKE MEMORIAL                     :
HOSPITAL, INC., and KELLY              :
FELIX,                                 :
                                       :
             Defendants.               :

                  Submitted: April 24, 2015 and May 8, 2015
                           Decided: May 19, 2015

                                      ORDER

                      Upon Review of the Affidavit of Merit

      This matter involves a healthcare negligence suit filed by Plaintiff Karen Buck

(“Plaintiff”) against Defendants Nanticoke Memorial Hospital Inc. (“Nanticoke”)

and Kelly Felix (“Felix”). Plaintiff claims that she received negligent treatment from

the Defendants during her emergency room visit on March 15, 2013.

      Specifically, her complaint alleges she received (1) negligent treatment from

Felix, a physician’s assistant; (2) independently negligent treatment from Nanticoke;

and (3) that Nanticoke is vicariously liable for Kelly Felix’s actions pursuant to the


                                           1
doctrine of respondeat superior. Defendants Felix and Nanticoke both move for the

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

          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.1 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.2 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.3 The affidavit of

merit must be filed under seal, but a defendant can request an in camera review of the

affidavit to ensure that it complies with the statute’s requirements.4 The Supreme

Court has noted that “the General Assembly intended the affidavit of merit merely to

operate ‘as a prophylactic measure’ to ‘reduce the filing of meritless medical

negligence claims.’” 5 As a result, the requirements for the affidavit of merit are


1
    18 Del. C. § 6853(a)(1).
2
    Id. § 6853(c).
3
    Id. § 6853 (c).
4
    18 Del. C. § 6853(d).
5
  Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmon v. Fucci, 32 A.3d
338, 342 (Del. 2011)).

                                             2
“purposefully minimal.”6 An affidavit of merit that tracks the statutory language

complies with the statute.7

          As requested separately by the Defendants, upon an in camera review of the

affidavit of merit and the expert 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.

          4.    The expert is Board certified in Orthopedic Medicine.

          5.    The expert has been treating patients and supervising staff in the same
                field as Defendant Felix for well over three years preceding the alleged
                negligence.

          6.    The affidavit states that reasonable grounds exist to believe Felix
                breached the applicable standard of care while treating the Plaintiff and
                that breach was a proximate cause of the Plaintiff’s injuries.

          7.     The affidavit does not state there are reasonable grounds to believe that
                the applicable standard of care was breached by Nanticoke nor does the
                affidavit address Nanticoke’s vicarious liability.

          When an affidavit of merit substantially complies with the statute and

deficiencies appear to be drafting errors, this Court has allowed the Plaintiff a

reasonable time to file an affidavit that corrects the deficiencies and complies with


6
    Id.
7
    See Dishmon, 32 A.3d at 342.

                                             3
the Act. The Court’s discretion in such instances is warranted because, “[i]n

Delaware, public policy favors permitting a litigant a right to a day in court.”8

Accordingly, “Courts should apply rules with ‘a liberal construction because of the

underlying public policy that favors a trial on the merits, as distinguished from a

judgment based on a default.’”9

          In the present case, the Court finds that the affidavit of merit complies with 18

Del. C. §6853 (a)(1) and (c) as to Defendant Felix. As Defendants emphasized in

their motions requesting the review, however, the statute requires an affidavit of

merit addressing these issues as to “each defendant.”10 Here, the proffered affidavit

does not address Nanticoke’s alleged negligence in any regard. It follows that it does

not substantially comply with the statute as to Nanticoke. Accordingly, any claim

in the Complaint alleging independent medical negligence against Nanticoke is not

cognizable pursuant to 18 Del. C. §6853. In the interest of justice, Plaintiff is

permitted (30) thirty days to supplement the record with an affidavit of merit meeting

the statutory requirements for alleging independent healthcare negligence against

Nanticoke. In the absence of filing of such an affidavit, allegations of independent

8
  Beckett v. Beebe Med. Ctr., Inc., 897 A.2d 753, 757-58 (Del. 2006) (citing Dolan v. Williams,
707 A.2d 34, 35-36 (Del. 1998)).
9
     Id. (quoting Old Guard Ins. Co. v. Jimmy's Grille, Inc., 860 A.2d 811 (Del. 2004)).
10
     18 Del. C. §6853 (a)(1) (emphasis added).

                                                   4
negligence against Nanticoke shall be deemed dismissed.

          Even absent the filing of an additional legally sufficient affidavit addressing

Nanticoke’s independent negligence, it does not follow that Nanticoke should be

removed from the present action entirely. In Count II of Plaintiff’s Complaint,

Plaintiff raises an additional claim alleging vicarious liability pursuant to the

doctrine of respondeat superior which does not fall within the purview of the statute.

Such a claim therefore does not need be addressed in an affidavit of merit.

          When “the principal is the master of an agent who is a servant, the fault of the

agent, if acting within the scope of employment, will be imputed to the principal by

the doctrine of respondeat superior.”11 "Literally, respondeat superior means ‘[l]et

the master answer.'”12 “Pursuant to this doctrine, a master is liable in certain cases

for the wrongful acts of his servant and a principal for those of his agent.”13

Accordingly, suit can be brought against an employer based solely on the alleged

acts of its employee taken within the scope of his or her employment. Under such

circumstances, the employer’s liability is entirely derivative of the employee’s

wrongful conduct. In other words, the alleged negligence of the employee is the sole


11
     Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
12
     Id. (citing BLACK'S LAW DICTIONARY 1475 (4th ed.1951)).
13
     Id. at fn. 5.

                                                 5
focus. Moreover, an expert medical witness’s opinion as to the nature of this

derivative liability would in no way be helpful or within any medical expert’s area of

expertise. The nature of such allegations are matters of tort law, the parameters of

which are set by common law. The statute’s purpose, to protect against frivolous

claims by requiring pre-suit certifications, is met in such instances when such

affidavit addresses the statutory requirements as to the employee-tortfeasor.

           Other jurisdictions have examined the issue and found requirements similar to

Delaware’s affidavit of merit statute to be inapplicable to respondeat superior

claims. For instance, the Texas Supreme Court, in a state with a pre-suit certification
                                                                   11
requirement similar to Delaware’s, has held the same.                   According to the Texas

Supreme Court, “when a health care liability claim involves a vicarious liability

theory, either alone or in combination with other theories, a [pre-suit certification]

that meets the statutory standards as to the employee is sufficient to implicate the

employer's conduct under the vicarious theory.”12 Likewise, in the context of a pre-

suit certification requirement as to “each defendant”, in Cammon v. West Suburban

Hospital Medical Center, 704 N.E.2d 731,738 (1998), an Illinois appeals court has

held that “[n]o [pre-suit report] need be filed as to any defendant whose claimed


11
     Certified EMS, Inc. v. Potts, 392 S.W. 3D 625, 632, (Tex. 2013), reh’g denied (Mar. 29, 2013).
12
     Id.

                                                  6
liability is wholly vicarious provided that a [pre-suit report] in compliance with [the

statute] has been filed as to the individuals whose conduct forms the basis of the

vicarious liability.”

         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”. An adequate affidavit of merit as to the employee’s negligence alone,

in such a claim, is sufficient to sustain a claim at the outset against both an employee

health care provider and the alleged employer of that provider.

         In conclusion, the affidavit of merit is sufficient as to the claims against

Defendant Felix and as to the respondeat superior allegations against Nanticoke.

Any claims against Defendant Nanticoke alleging independent negligence against that

entity will not be sustainable unless Plaintiff files a statutorily sufficient affidavit as

to Nanticoke within thirty (30) days of the date of this Order. If a supplemental

affidavit is not filed, then such claims against Nanticoke will be dismissed by the

Court.

IT IS SO ORDERED.
                                          /s/ Jeffrey J Clark
                                                     Judge

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