Opinion
C. A. N22C-02-068 JRJ
05-23-2022
YVONNE DANIELS, as personal representative of the ESTATE OF BETTIE FAINS, Plaintiff, v. GREEN VALLEY SNF LLC, Individually and d/b/a Pinnacle Rehabilitation & Health Center, IPC HEALTHCARE, INC., and ANGELA BARONE, NP, Defendants.
Submitted: May 4, 2022
ORDER
Jan. R. Jurden, President Judge
Upon Defendants IPC Healthcare, Inc. and Angela Barone, NP's Motion to Determine if the Affidavits of Merit Comply with Sections (a)(1) and (c) of 18 Del. C. §6853
Section 6853(a)(1) of Title 18 of the Delaware Code provides that all healthcare negligence complaints must be accompanied by "[a]n affidavit of merit as to each defendant signed by an expert witness . . . and accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that there has been health-care medical negligence committed by each defendant."
In this case, two affidavits of merit were filed under seal, as required. Pursuant to 18 Del. C. §6853(d), Defendants IPC Healthcare, Inc. and Angela Barone, NP, requested in camera review to determine compliance with sections 6853(a)(1) and (c). After reviewing the affidavits of merit and the accompanying curricula vitae, the Court finds:
1. Both affidavits are signed by the expert witnesses and meet the requirements set forth in 10 Del. C. §3927 (Unsworn Declarations Under Penalty of Perjury).
2. Both affidavits are accompanied by a current curriculum vitae.
3. Both experts set forth their opinion that there are reasonable grounds to believe that there has been health-care medical negligence by the named defendant.
4. Both experts set forth their opinion that there are reasonable grounds to believe that the applicable standard of care was breached by the named defendant and that the breach was a proximate cause of the injuries claimed in the complaint.
5. The first expert witness was licensed to practice medicine as of the date of the affidavit. The second expert witness is not licensed to practice medicine; she was a licensed Registered Nurse as of the date of the affidavit.
6. In the three years immediately preceding the alleged negligent act, both expert witnesses were engaged in the treatment of patients and/or in the
teaching/academic side of medicine in the same of similar field of medicine as the defendant or defendants.
7. The affidavit of the first expert witness, a medical doctor, does not indicate whether any of Defendants' employees or agents involved in Decedent's care are Board certified. If they are, it is unclear whether the first expert witness is Board certified in the same or similar field of medicine. The second expert witness is not a physician; she is a licensed Registered Nurse.
See Amended Standing Order No. 8.
See 18 Del. C. §6853(c) (". . . and the expert shall be Board certified in the same or similar field of medicine if the defendant or defendants is Board certified").
While the affidavit of merit for the first expert witness is deficient, "[t]he statute does not . . . contemplate that affidavits that are initially incomplete are automatically subject to outright dismissal." The nature and scope of the deficiencies may have been the result of administrative error. The Court "must give weight to Delaware's well-known public policy that favors permitting a litigant to have his day in court."
Farmer v. Manor Care of Wilmington, DE, LLC, 2018 WL 3689260, at * 1 (Del. Super. Aug. 2, 2018) (citing Dishmon v. Fucci, 32 A.3d 338, 345 (Del. 2011)).
Farmer, 2018 WL 3689260, at *1 (Del. Super. Aug. 2, 2018) (citing Janssen v. Christiana Care Health System, Inc., 2015 WL 105727, at *1 (Del. Super. Feb. 10, 2015) (stating that a defect in an affidavit of merit could have been a mere filing error)).
Farmer, 2018 WL 3689260, at *1 (Del. Super. Aug. 2, 2018) (citing Dishmon, 32 A.3d at 345).
To that end, the Court will allow Plaintiff 14 days to file an affidavit of merit for the first expert witness that complies with the statutory requirements of section 6853(c) of Title 18 of the Delaware Code.
NOW, THEREFORE, this 23 rd day of May, 2022, IT IS HEREBY ORDERED THAT:
1. The affidavit of merit for Plaintiff's first expert witness does not comply with 18 Del. C. §6853(c).
2. Plaintiff is granted leave to file an affidavit of merit for the first expert witness that complies with the requirements of 18 Del. C. §6853(c). The compliant affidavit of merit shall be filed within 14 days.
IT IS SO ORDERED.