IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE ESTATE OF THOMAS G. :

STONE, JR.

, :

:

PLAINTIFF

, :

: C.A. No: K2 2C

- 03

- 017 JJC

:

v. :

:

BAYHEALTH MEDICAL CENTER, :

INC., :

:

D EFENDANT

. :

:

Submitted: Ju ly 6 , 20 22

Decided: J u ly 1 4 , 202 2

ORDER

Upon Review of the Affidavit of Merit

– COMPLIANT

This matter involves a medical negligence suit filed by P laintiff , the Estate of

Thomas G. Stone, Jr.

, against Defendant Bayhealth Medical Center, Inc. The Estate

alleges that Bayhealth’s negligent medical care caused Mr. Stone’s death

.

Specifically, the Estate alleges that Bayhealth is vicariously liable for the negligent

diagnosis and treatment of Mr. Stone by its medical staff when he presented at the

emergency room with severe right leg pain

.

Bayhealth moves for an in camera review of the Estate’s affidavit of merit to

determine whether it complies with the requirements of 18 Del. C. § § 6853(a)(1) and

(c). The Estate filed an expert’s affidavit in this case but did not file the expert’s

curriculum vitae with the expert’s affi davit. The Court deferred its review of the

affidavit and provided the Estate seven days to supplement its filing , which it did.2

In Delaware, a medical negligence lawsuit must be filed with an affidavit of

merit as to each defendant, signed by the expert , and accompanied by the expert’s

curriculum vitae. 1 As a general matter, an affidavit that tracks 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

injur ies

. 4 While the affidavit of merit must be filed under seal, a defendant may

reques t 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 Cour t finds:

1. The expert signed the affidavit

.

2. The expert attached a current curriculum vitae

.

3. The expert is currently licensed to practice medicine

.

4. The expert is board certified with special certification in hospital medicine

.

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

Bayhealth 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 patients who present with

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.3d 338, 342 (Del. 2011).

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

4 Id.

5 Id. at *1 (quoting § 6853(d)).3

severe right leg pain in hospital emergency rooms. The expert actively

practices hospital medicine , is a member of numerous hospital committees

,

including a medical staff performance improvement gr oup

. The expert

also t rain s and educat es residents as an a ssociate i nternal m edicine d irector

at a medical school

.

6. The expert recites and specifically lists the reasonable grounds to believe

that Bayhealth’s medical staff breached the applicable standard of care as

it relate d to the diagnosis and treatment of Mr. Stone’s condition , and that

the breach w as a proximate cause of his death

.

The affidavit of merit contains the information required by 18 Del. C. §§

6853(a)(1) and (c) as to the allegati ons involving Bayhealth. Therefore, the affidavit

of merit is COMPLIANT

.

IT IS SO ORDERED.

/s/ Jeffrey J Clark

Resident Judge

Via File & Serve X

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