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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WARREN KEY, )

)

Plaintiff, )

) C.A. No.: K22C-01-004 RLG

v. )

)

LOUIS COSTA, D.O., and )

SURGICAL ASSOCIATES, P.A., )

)

Defendants. )

Submitted: January 26, 2023

Decided: February 27, 2023

ORDER

Upon Review of the Affidavit of Merit – COMPLIANT

This matter involves a medical negligence suit filed by Plaintiff, Warren Key, 

against Defendants Louis Costa, D.O. (“Costa”), and Surgical Associates, P.A. 

(“SAP”). Plaintiff alleges that Costa’s and SAP’s negligent medical care caused 

Plaintiff’s pain, suffering, and need for a corrective surgery. Specifically, Plaintiff 

alleges that Costa, and vicariously SAP, failed to detect, treat, and correct the 

ilioinguinal nerve entrapment syndrome that allegedly resulted from a left inguinal 

hernia repair performed by Costa.

SAP moves for an in camera review of Plaintiff’s affidavit of merit to 

determine whether it complies with the requirement of 18 Del. C. §§ 6853(a)(1) and 
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(c). Plaintiff filed an expert’s affidavit and the expert’s curriculum vitae in this case. 

The Court performed the review requested.

In Delaware, a medical 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.

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 As a general matter, an affidavit that track’s the statutory 

language complies with the statute.2 The expert signing the affidavit must be 

licensed to practice medicine as of the date of the affidavit and engaged in practice 

in the same or similar field of medicine as the defendant in the three years 

immediately preceding the alleged negligence.3 The affidavit must also recite that 

reasonable grounds exist to believe that each defendant was negligent in a way that 

caused the plaintiff’s injuries.4 While the affidavit of merit must be filed under seal, 

a defendant may request the Court to review it in camera to ensure that it complies 

with the statute’s requirements.5

As requested, after 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.

1 Flamer v. Nanticoke Memorial Hospital, 2020 WL 113911, at *1 (Del. Super. Jan 9, 2020) (quoting 18 Del. C. § 

6853(a)(1) & (c)).

2 Dishmon v. Fucci, 32 A.2d 338, 342 (Del. 2011).

3 Flamer, 2020 WL 113911, at *1 (quoting § 6853(c)).

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Id.

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Id. at *1 (quoting § 6853(d)).
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2. The expert attached a current curriculum vitae.

3. The expert is currently licensed to practice medicine.

4. The expert has been treating patients in the same field of medicine as 

Costa for over three years, including the three years immediately 

preceding the alleged negligent conduct. Namely, the affidavit and 

accompanying curriculum vitae specifically reference the expert’s 

experience in the diagnosis and treatment of both acute and chronic 

pathology involving inguinal anatomy and hernias. The expert actively 

practices surgical medicine; is a member of several professional 

medical organizations; and completed a surgical subspecialty 

fellowship in critical care. The expert also trains and educates residents 

as an associate professor at two separate medical institutions.

5. The expert recites and specifically lists the reasonable grounds to 

believe that Costa and SAP breached the applicable standard of care as 

it related to the diagnosis and treatment of Plaintiff’s condition, and that 

the breach was a proximate cause of his pain, suffering, and need for a 

corrective surgery.

The affidavit of merit contains the information required by 18 Del. C. §§ 6853(a)(1) 

and (c) as to the allegations involving Costa and SAP. Therefore, the affidavit of 

merit is COMPLIANT.
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IT IS SO ORDERED.

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