IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

COURTLAND PITTS, ) )
Plaintiff, ) )

v. ) C.A. No. K24C

- 04

- 003 NEP )

BAYHEALTH MEDICAL CENTER

, )
INC., and DAWN R. )
TARTAGLIONE, D.O., ) )

Defendants. )

Submitted: August 9 , 2024 Decided: August 30 , 2024

ORDER 1

Upon Review of the Affidavit of Merit

ACCEPTED

1. T his matter involves a healthcare negligence suit filed by Plaintiff

Courtland Pitts against Bayhealth Medical Center, Inc. (“Bayhealth”)

, and Dawn

Tartaglione, D.O. (“Dr. Tartaglione

, ” and together with Bayhealth, “Defendants”).

Dr. Tartaglione has submitted a motion asking the Court to review the affidavit of

merit filed in this case to determine whether it satisfies 18 Del. C. § 6853(a)(1) and

(c). 2

1 Citations hereafter in the form of “(D.I.

__ )” refer to docket items.

2 Mot. for the Review of the Aff. of Merit (D.I. 10).2

2. On April 3, 2024, Plaintiff filed his complaint, 3 alleging medical

negligence claims against Dr. Tartaglione, and against Bayhealth under a theory of

respondeat superior for the conduct of Dr. Tartaglione. 4

3. 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 current curriculum vitae

. 5 The expert must be licensed to practice medicine

as of the affidavit’s date, and be Board certified in the same or similar fields as the

defendant if the defendant is Board certified. 6 The expert must also have been

“ engaged in the treatment of patients and/or in the teaching/academic side of

medicine in the same or similar field of medicine as the defendant ” for the three

year period preceding the alleged negligence. 7

4. Pursuant to 18 Del. C. § 6854, a n expert is defined as “ such [a] person

[that] is familiar with the degree of skill ordinarily employed in the field of medicine

on which he or she will testify.” 8 “Determining whether an expert is in a ‘similar’

field of medicine as a defendant is a fact

- intensive inquiry.” 9 The proffered expert

,
however, need not be proficient in a specific medical field to qualify as an expert

under the statute

. 10 In Baoust v. Kraut , the Delaware Supreme Court explained that

3 Compl. (D.I. 1). Plaintiff filed an amended complaint on June 6, 2024, correcting Bayhealth’s

name and the date of the alleged negligent surgery. Am. Compl. (D.I. 5) ¶¶ 2, 10.

4 Compl. ¶¶ 3, 14

– 15.

5 18 Del. C. § 6853(a)(1).

6 Id. § 6853(c). Of course, these requirements apply only if the expert is a physician, and the requirements regarding “same or similar field” apply only if the defendant is a physician. Zappaterrini v. St. Francis Hosp., Inc. , 2009 WL 1101618, at *1 (Del. Super. Apr. 22, 2009) (“[B]ecause the defendant is not a physician, the statutory requirement of similar Board certification is not applicable.”); McNulty v. Correct Care Sols

. , LLC , 2017 WL 1323711, at *2 (Del. Super. Apr. 7, 2017) ( noting that “same or similar” Board certification does not apply where defendant is not a physician)

. 7 18 Del. C. § 6853(c).

8 Id. § 6854.

9 McNulty , 2017 WL 1323711, at *2.

10 Id.3

“ the diagnosis and treatment of some medical problems may be of concern to doctors

of different specialties, and in an area of concurrent expertise, a common standard

of care may be shared.” 11

5. The affidavit must indicate that reasonable grounds exist to believe that

the applicable standard of care was breached by the defendant and that the breach

was a proximate cause of injury alleged in the complaint. 12 Additionally, the

affidavit must be filed under seal ; then

, upon request, it may be reviewed in camera

to ensure compliance with statutory requirements. 13 The affidavit’s requirements

are “purposefully minimal” in that the General Assembly “ did not intend a minitrial

at this stage of the litigation.” 14 A n a ffidavit need not repeat verbatim the statutory

language; rather, its statements need only represent the functional equivalent of the

statutory language to be judicially acceptable

. 15

6. As requested by Dr. Tartaglione, t he Court has performed an in camera

review regarding the affidavit o f merit that was filed with the complaint

. As to the

expert in question, the Court finds as follows:

a. The expert signed the affidavit.

b. The current curriculum vitae of the expert is attached

.

c. The expert was licensed to practice medicine as of the date of the

affidavit.

d. For the three years immediately preceding the alleged negligent

11 377 A.2d 4, 7 (Del. 1977). See also McNulty , 2017 WL 1323711, at *2 (quoting same) ; Saddler v. Nanticoke Mem’l Hosp. , 2012 WL 6846550, at *6 (Del. Super. Dec. 24, 2012) (“Each of these
[i.e., the 3

- year practice and Board certification requirements] contemplates requiring an affiant to be a physician of like experience and skill to that of a medical practitioner defendant.”).

12 18 Del. C. § 6853(c).

13 Id. § 6853 (a)(1), (d).

14 Dishmon v. Fucci , 32 A.3d 338, 342

– 43 (Del. 2011).

15 Id. ; see also id. at 344 (“Medical experts need not couch their opinions in legal terms, state the facts that underly their determination, or to articulate [sic] the standard of care with a high degree of legal precision or ‘magic words.’” (citation omitted)).4 conduct on April 6, 2022

, 16 the expert was engaged in the treatment

of patients in a similar field of medicine as Dr. Tartaglione

. 17 T he

expert also has experience performing “adult s p ine surgeries

including the type ... performed here” by Dr. Tartaglione on

Plaintiff

, and the expert is Board certified by the American Board of

Orthopaedic Surgery i n a similar field of medicine to that of Dr.

Tartaglione as a neurosurgeon , i.e., orthopedic surgery

. 18

e. In t he expert ’s opinion, to a reasonable degree of medical

probability

, the applicable standard s of care w ere breached by the

Defendants, and th ose breaches w ere proximate cause s of Plaintiff’s

injuries.

WHEREFORE , in consideration of the above, the Court finds that the

affidavit o f merit filed with the Court on April 3, 2024, complies with 18 Del. C. §

6853(a)(1) and (c) as to Dr. Tartaglione.

16 Am. Compl. ¶ 10.

17 The expert’s curriculum vitae indicates that the expert operated a private orthopedic surgical practice that ended in 2020 . Since that time, according to the curriculum vitae

, the expert’s work

has included the performance of “ orthopedic consultations, Independent Medical Examinations, chart reviews, [and] permanency evaluations.” While all this activity may not involve the direct

treatment of patients, certainly at least some of it does, in particular the independent medical

examinations. Moreover, e ngaging in quibbling over whether the subjects of such examinations qualify as the expert’s “patients” would not be in keeping with the Supreme Court’s instruction that the requirements of the statute are “purposefully minimal.” See Dishmon , 32 A.3d at 342.

18 The a ffidavit states that “the standard of care for the evaluation and treatment, including the

surgery
, of this patient’s condition is the same, regardless of whether the surgeon is trained as an orthopedic spine surgeon or a neurosurgeon.”5

IT IS SO ORDERED.

NEP:tls Via File & ServeXpress

oc: Prothonotary

cc: Counsel of Record