IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ESTATE OF GLODE REQUA,
CAROL FLACH, as Executrix of the
ESTATE OF GLODE REQUA,
CAROL FLACH, individually and
SHIRLEY WADDY, individually,

C.A. No. K19C-03-026 NEP
In and For Kent County

Plaintiffs,
V.

BAYHEALTH MEDICAL CENTER, INC.
d/b/a KENT GENERAL HOSPITAL,
DELMARVA EMERGENCY
PHYSICIANS, LLP, a Limited Liability
Partnership, VERONICA R. RIOS, M.D.,
Individually, and THE FREDERICA
VOLUNTEER FIRE CO., a Delaware
Corporation,

a ae de ae ee ede eee ae ae ee

Defendants.

Submitted: May 20, 2019
Decided: June 4, 2019

ORDER

Upon Review of the Affidavits of Merit
DEFERRED

This matter involves a healthcare negligence suit filed by Plaintiffs Estate of
Glode Requa, Carol Flach individually and as Executrix of the Estate of Glode
Requa, and Shirley Waddy (hereinafter collectively "Plaintiffs"), against
Defendants Bayhealth Medical Center, Inc. d/b/a Kent General Hospital
(hereinafter "Moving Defendant"), as well as Delmarva Emergency Physicians,

LLP, Veronica Rios, M.D., and The Frederica Volunteer Fire Co. (all Defendants
hereinafter collectively "Defendants").' Moving Defendant has asked the Court to
review the affidavit(s) of merit filed in this case to determine if it satisfies 18 Del.
C. § 6853.

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.” 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.? The
affidavit must also state that reasonable grounds exist to believe that the defendant
was negligent in a way that proximately caused the plaintiff's injury.’ The affidavit
must be filed under seal, and, upon request, may be reviewed in camera to ensure
compliance with statutory requirements.’ The affidavit's requirements are
"purposefully minimal."° Affidavits that merely track the statutory language are
deemed sufficient.’

In this case, Plaintiffs filed their Complaint on March 19, 2019, and
submitted affidavits of merit to the Court on the same date. However, Plaintiffs

failed to attach the curricula vitae of their experts. Plaintiffs note in their affidavits

 

* Bayhealth Emergency Physicians, LLC, and Kent County EMS were also initially named as
defendants but were subsequently dismissed without opposition from Plaintiffs.

> 18 Del. C. § 6853(a)(1).

> Id. § 6853(c).

* Td.

> Id. § 6853(d).

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

” Dishmon, 32 A.3d at 342-43.
the purported attachment of the curricula vitae, but, the Court did not receive any
such attachments in the sealed envelope.

The Court acknowledges that Section 6853 requires a plaintiff to supplement
his or her expert affidavit(s) of merit with the curriculum vitae, and that failure to
do so equates to non-compliance with the statute. Nevertheless, this Court has
discretion in choosing an appropriate sanction for noncompliance and must balance
dismissal with the Court's strong policy favoring the deciding of cases on the
merits. In another context, the Delaware Supreme Court has observed that "[t]he
sanction of dismissal is severe and courts are and have been reluctant to apply it
except as a last resort."®

The Delaware Supreme Court in Dishmon, supra, held that "a failure to
enclose the curriculum vitae in a sealed envelope does not, by itself, justify
dismissal."” Rather, "the absent curriculum vitae should [be] viewed as a
procedural deficiency, but not an independent basis for dismissal."’® Moreover, as
in Dishmon, there are no facts here to suggest that Plaintiffs were personally
responsible for their attorney's failure to include the curricula vitae with the

affidavits of merit or that Plaintiffs' attorney acted in bad faith."

 

* Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008) (sanction of dismissal disfavored
for discovery violations except as last resort).

° Dishmon, 32 A.3d at 345. The Delaware Supreme Court also noted that an affidavit of merit is
not discoverable and, thus, the defense would not be prejudiced by a late submission. Jd.

* Id. at 344.

* Td. at 345.
WHEREFORE, in consideration of the above, Plaintiffs shall be provided
an additional twenty (20) days from the date of this Order to provide affidavits
of merit that comply with 18 Del. C. § 6853 to avoid dismissal of the complaint.

IT IS SO ORDERED.

/s/ Noel Eason Primos
Judge

NEP/wjs
via File & ServeXpress and U.S. Mail
oc: Prothonotary
