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 :

:

Plaintiff s

, :

:

:

v. :

:

BAYHEALTH MEDICAL CENTER :

INC.

, d/b/a KENT GENERAL :

HOSPITAL, and SHARIF GOBRAN, :

M.D.

, :

:

Defendants

. :

Submitted: J uly 15 , 2021

Decided: Ju ly 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 Plaintif f s against Defendants Bayhealth Medical

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

p laintiff s 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 he r wrongful death beneficiaries.2

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

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

6853(a)(1) and (c). In support of their request, t he y emphasize t he 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 ’ injur ies

. 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 A 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

A purposefully minimal. @ 6 An affidavit of merit that tracks the statutory language

complies with the stat ute. 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. a t § 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 patient s in the same

or similar field as both defendants over the three years immediately

prec eding th e 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

wh en treating Ms. Smith, and that breaches by each defendant

proximately caused the injuries that p laintiffs allege in their complaint.

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

. §

685 3(a)(1) and (c) , as to both defendants.

IT IS SO ORDERED.

/s/ Jeffrey J Clark

Resident Judge

JJC:klc

Via File & Serve Express