IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RODNEY SMITH, Individually and as :

Administrator of The ESTATE OF :

WILHELMINA SMITH and :

LAUREN HUNTER, MICHAEL : C.A. No: K21C-06-010 JJC

BROWN, AND AUTUMN J. SMITH :

 :

Plaintiffs, :

 :

 :

v. :

 :

BAYHEALTH MEDICAL CENTER :

INC., d/b/a KENT GENERAL :

HOSPITAL, and SHARIF GOBRAN, :

M.D., :

 :

Defendants. :

Submitted: July 15, 2021 

Decided: July 23, 2021

ORDER

Upon Review of the Affidavit of Merit -

COMPLIANT

This matter involves a healthcare negligence suit filed as a survivorship and 

wrongful death action by the Plaintiffs against Defendants Bayhealth Medical 

Center, Inc. (“Bayhealth”), and Sharif Gobran, M.D. In their complaint, the 

plaintiffs allege that a lack of informed consent and negligent medical care 

proximately caused Wilhelmina Smith’s disability and death. Likewise, those 

breaches allegedly caused harm to her wrongful death beneficiaries. 
2

Presently, Bayhealth and Dr. Gobran file a motion requesting an in camera

review of the plaintiffs’ affidavit of merit for compliance with 18 Del. C. § 

6853(a)(1) and (c). In support of their request, they emphasize the statute’s 

requirements for a sufficient affidavit of merit. 

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 that each defendant 

was negligent in a way that proximately caused the plaintiffs’ injuries.

3

 The affidavit 

of merit must be filed under seal, but a defendant may request the Court to perform 

an in camera review of the affidavit to ensure that it complies with the statute=s 

requirements.4 

Regarding the Court’s scope of review, the Delaware Supreme Court has 

observed that Athe 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 

Apurposefully minimal.@

6

 An affidavit of merit that tracks the statutory language 

complies with the statute.7

Here, after an in camera review of the affidavit of merit and the expert’s

1

18 Del. C. § 6853(a)(1).

2

Id. at § 6853(c).

3

Id.

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)).

6

 Id.

7

See Dishmon, 32 A.3d at 342.
3

curriculum vitae, the Court finds, as to both Defendants Bayhealth and Dr. Gobran, 

the following:

1. The expert signed the affidavit;

2. The expert attached his current curriculum vitae;

3. The expert is currently licensed to practice medicine in other states.

4. According to the expert’s affidavit, he has treated patients in the same 

or similar field as both defendants over the three years immediately 

preceding the allegedly negligent conduct. Namely, his affidavit and 

curriculum vitae reference his experience and board certification in 

anesthesiology and echocardiography; and 

5. His affidavit recites that reasonable grounds exist to believe that

Bayhealth and Dr. Gobran breached the applicable standard of care 

when treating Ms. Smith, and that breaches by each defendant

proximately caused the injuries that plaintiffs allege in their complaint. 

Accordingly, the Estate’s affidavit of merit complies with 18 Del. C. § 

6853(a)(1) and (c), as to both defendants. 

IT IS SO ORDERED.

/s/ Jeffrey J Clark

 Resident Judge

JJC:klc

Via File & Serve Express