      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TROY FARMER, Personal                         )
Representative of the Estate                  )
of CARL METZ,                                 )
                                              )
            Plaintiff,                        )
                                              )
      v.                                      )     C.A. No. N18C-06-010 ALR
                                              )
MANOR CARE OF WILMINGTON,                     )
DE, LLC, a Delaware Limited Liability         )
Company, individually and d/b/a               )
MANOR CARE HEALTH SERVICES                    )
—Wilmington                                   )

                               Submitted: July 27, 2018
                               Decided: August 2, 2018

 Upon Defendant’s Motion to Determine if the Affidavit of Merit Complies with
                  Sections (a)(1) and (c) of Title 18 § 6853

                                      ORDER

      Upon consideration of Defendant’s Motion to Determine if the Affidavit of

Merit Complies with Sections (a)(1) and (c) of Title 18 § 6853; the Affidavit of

Merit; and statutory and decisional law, the Court hereby finds as follows:

      1.    On July 27, 2018, Defendant moved for Court review of Plaintiff’s

affidavit of merit, in camera, to determine whether it complies with 18 Del. C.

6853(a)(1) and (c).

      2.    Pursuant to 18 Del. C. § 6853(a)(1), all healthcare negligence

complaints must be accompanied by an affidavit of merit as to each defendant signed
by an expert witness, accompanied by a current curriculum vitae of the witness,

stating that there are reasonable grounds to believe that there has been healthcare

medical negligence committed by each defendant.1 More specifically, pursuant to

18 Del. C. § 6853(c), the affidavit of merit must set forth the expert’s opinion that

“there are reasonable grounds to believe the applicable standard of care was

breached by the named defendant or defendants and that the breach was a proximate

cause of injury or injuries claimed in the complaint.”2 In addition, pursuant to 18

Del. C. § 6853(c), the expert witness shall have the following qualifications:

      [The] expert signing the affidavit of merit shall be licensed to practice
      medicine as of the date of the affidavit; and in the 3 years immediately
      preceding the alleged 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 the defendant or defendants, and the
      expert shall be Board certified in the same or similar field of medicine
      if the defendant or defendants is Board certified.3

      3.     Plaintiff’s affidavit of merit does not comply with 18 Del. C. §

6853(a)(1) and (c). First, the “affidavit of merit” was not made under oath. Second,

Plaintiff’s expert does not state that there are reasonable grounds to believe the

applicable standard of care was breached and that the breach was a proximate cause

of Plaintiff’s injuries. Third, the expert’s curriculum vitae is not a current version,




1
  18 Del. C. § 6853(a)(1).
2
  18 Del. C. § 6853(c).
3
  18 Del. C. § 6853(c).
                                          2
such that the Court cannot discern whether the expert meets the qualifications set

forth in the statute.

       4.     While there are deficiencies in Plaintiff’s affidavit of merit, “[t]he

statute does not … contemplate that affidavits that are initially incomplete are

automatically subject to outright dismissal.”4      The nature and scope of the

deficiencies may have been the result of administrative error.5 The Court “must give

weight to Delaware’s well-known public policy that favors permitting a litigant to

have his day in court.”6

       5.     To that end, the Court will allow Plaintiff 30 days to comply with the

statutory requirements. If Plaintiff files an affidavit of merit and curriculum vitae

that comply with 18 Del. C. § 6853(a)(1) and (c) within 30 days, the lawsuit shall

move forward. If Plaintiff does not file an affidavit of merit and curriculum vitae

that comply with the statutory requirements, the Court will dismiss the complaint.

       NOW, THEREFORE, this 2nd day of August, 2018:

       1.     Plaintiff’s affidavit of merit does not comply with 18 Del. C. §

6853(a)(1) and (c).




4
  Dishmon v. Fucci, 32 A.3d 338, 345 (Del. 2011).
5
  Janssen v. Christiana Care Health System, Inc., 2015 WL 105727, at *1 (Del.
Super. Feb. 10, 2015) (stating that a defect in an affidavit of merit could have been
a mere drafting error).
6
  Dishmon, 32 A.3d at 344.
                                          3
      2.    Plaintiff is granted leave to file an affidavit of merit and curriculum

vitae that comply with 18 Del. C. § 6853(a)(1) and (c) within 30 days.

      IT IS SO ORDERED.

                                             Andrea L. Rocanelli
                                             ____________________________
                                             The Honorable Andrea L. Rocanelli




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