Opinion
C.A. No. N16C-02-038 AML
04-13-2016
MARGARET GERSTLEY-TRASK and DALE TRASK, wife and husband, Plaintiffs, v. JEFFREY FELZER, D.M.D., P.C. d/b/a PERIODONTICS AND IMPLANT DENTISTRY; CHRISTIANA CARE HEALTH SERVICES, INC.; JOHN VORRASI, D.D.S.; GEOFFREY ZINBERG, D.M.D.; RYAN CALVI, D.M.D.; and RICHARD HAMMOND, D.M.D., Defendants.
JURY TRIAL OF 12 DEMANDED ORDER
Upon Review of the Affidavit of Merit
Under 18 Del. C. § 6853(a)(1), all healthcare negligence complaints must be accompanied by an affidavit of merit as to each defendant, signed by an expert witness, accompanied by a current curriculum vitae of the witness, and stating that there are reasonable grounds to believe each defendant committed healthcare medical negligence. By its terms, an affidavit is required only in "healthcare negligence lawsuit[s]." "Medical negligence" is defined as "any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient." A "health care provider" is a "person corporation, facility or institution licensed by this State pursuant to Title 24, excluding Chapter 11 thereof . . . ."
Id. § 6801(7).
Id. § 6801(5).
In this case, the affidavit of merit was filed under seal, as required. As permitted by 18 Del. C. § 6853(d), Defendants Christiana Care Health Services, Inc., John Vorrasi, D.D.S., Geoffrey Zinberg, D.M.D., Ryan Calvi, D.M.D., and Richard Hammond, D.M.D. requested in camera review of the affidavit to determine compliance with Sections 6853(a)(1) and (c).
This is not a "healthcare negligence lawsuit." Dentists are licensed pursuant to Title 24 Chapter 11, and, therefore, are excluded from the definition of "health care provider." Because Plaintiff had no obligation to file an affidavit of merit, the Court will not review the one submitted.
See Jubb v. Dougherty, 2009 WL 952217, at *1 (Del. Super. Apr. 8, 2009).
Jubb, 2009 WL 952217, at *1 (citing Ragazzo v. Truono, 1989 WL 40922, at *1 (Del. Super. Apr. 12, 1989)).
Although not a dentist excluded under Chapter 11, Christiana Care Health Services, Inc. is a named defendant solely for respondeat superior purposes and therefor does not require an affidavit of merit. See Patrick v. Sahm, 2009 WL 807482 (Del. Super. Mar. 19, 2009); Hudson v. Ciampoli, 2010 WL 629838 (Del. Super. Feb. 19, 2010). --------
IT IS SO ORDERED.
/s/_________
Abigail M. LeGrow, Judge Original to Prothonotary
cc: Richard Galperin, Esquire
Gary S. Nitsche, Esquire
William A. Crawford, Esquire