Opinion
C.A. No. 07C-07-093 MMJ.
Submitted: September 29, 2008.
Decided: October 28, 2008.
Upon Defendants' Request to Determine if the Affidavit of Merit Complies with 18 Del. C. §§ (a)(1) and (c).
Voshell Joyner, Pro Se.
John A. Elzufon, Esquire, Andrea C. Rodgers, Esquire, Elzufon, Austin, Reardon, Tarlov Mondell, P.A., Wilmington, Delaware, Attorneys for Randeep S. Kahlon, M.D. and First State Orthopaedics, P.A.
Amy A. Quinlan, Esquire, Morris James LLC, Wilmington, Delaware, Attorneys for Christiana Care Health Services, Inc.
ORDER
Section 6853 (a)(1) of title 18 of the Delaware Code provides that 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, stating that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant.
In this case, the affidavit of merit was filed under seal, as required. Pursuant to 18 Del. C. § 6853(d), defendants have requested in camera review of the affidavit to determine compliance with sections 6853(a)(1) and (c). The Court has reviewed the affidavit of merit. The Court finds:
1. The affidavit is signed by an expert witness.
2. The affidavit is not accompanied by a current curriculum vitae.
3. The affidavit does not set forth the expert's opinion that there are reasonable grounds to believe that the applicable standard of care was breached by each named defendant.
4. The affidavit does not set forth the expert's opinion that there are reasonable grounds to believe that specifically enumerated breaches by each defendant proximately caused the injuries claimed in the complaint.
5. Because there is no accompanying curriculum vitae, the Court cannot determine whether the expert witness was licensed to practice medicine as of the date of the affidavit.
6. Because there is no accompanying curriculum vitae, the Court cannot determine whether in the 3 years immediately preceding the alleged negligent act, the expert witness was 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 defendants.
7. Because there is no accompanying curriculum vitae, the Court cannot determine whether the expert witness is board-certified in the same or similar field of medicine as the defendants.
8. Section 6852(b) provides that no affidavit of merit is required if the complaint alleges a rebuttable inference of medical negligence. Section 6852(e)(1) provides that a rebuttable inference of negligence arises where evidence is presented that the personal injury occurred under the circumstance in which a foreign object was left unintentionally within the body of the patient following surgery.
9. Plaintiff's affidavit of merit states in full: "The above named patient has foreign metallic bodies in his left elbow." The affidavit does not state whether the objects were left intentionally or unintentionally, or whether the presence of such bodies under the circumstances is or is not a result of medical negligence.
10. Defendants have presented evidence rebutting the inference of negligence on the grounds that the objects remaining in plaintiff's body following surgery were not left unintentionally, and the presence of the objects was not the result of medical negligence.
11. The Court finds that in order to establish a prima facie case of medical negligence, plaintiff must file an affidavit of merit in compliance with section 6853, in which a qualified medical expert opines that there are reasonable grounds to believe that the applicable standard of care was breached by each named defendant and that specifically enumerated breaches by each defendant proximately caused the injuries claimed in the complaint.
THEREFORE, the Court having reviewed in camera the affidavit of merit of plaintiff's expert witness, the Court finds that the affidavit of merit does not comply with sections 6853(a)(1) and (c) of title 18 of the Delaware Code.
IT IS SO ORDERED.