IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

THE ESTATE OF THOMAS G. : 

STONE, JR., :

 :

 PLAINTIFF, :

 : C.A. No: K22C-03-017 JJC

 :

v. :

 :

BAYHEALTH MEDICAL CENTER, : 

INC., :

 :

 DEFENDANT. :

 :

Submitted: July 6, 2022 

Decided: July 14, 2022

ORDER

Upon Review of the Affidavit of Merit – COMPLIANT

This matter involves a medical negligence suit filed by Plaintiff, 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 affidavit. 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 

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.

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 group. The expert 

also trains and educates residents as an associate internal medicine director 

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 related to the diagnosis and treatment of Mr. Stone’s condition, and that 

the breach was 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 allegations involving Bayhealth. Therefore, the affidavit 

of merit is COMPLIANT. 

IT IS SO ORDERED.

/s/ Jeffrey J Clark

 Resident Judge

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