Opinion
C.A. No. N11C-02-173.
Submitted: April 29, 2011.
Decided: May 3, 2011.
Stephen B. Potter, Esquire, Potter, Carmine Associates, P.A., Wilmington, Delaware, Attorney for Plaintiff Naomi Derrickson.
John D. Balaguer, Esquire, White Williams, LLP, Wilmington, Delaware, Attorney for Defendants Kelly A. Pruden, C.P.N.P., the Nemours Foundation, and Brian J. Duffy, M.D.
Dear Counsel:
On April 28, 2011, Defendant Brian J. Duffy, M.D. ("Defendant") filed a Renewed Motion for Review of the Affidavit of Merit. The instant motion is predicated on this Court's April 21, 2011 decision that, based on the information available to the Court at that time, Plaintiff's Affidavit of Merit met the requirements of 18 Del. C. § 6853(c), but that Defendant could nonetheless renew his Motion for Review of the Affidavit of Merit, subject to clarification regarding the allegedly disparate Board certifications of Defendant and Plaintiff's expert physician.
See Derrickson v. Pruden, et al., Del. Super., C.A. No. N11C-02-173, Cooch, R.J. (Apr. 21, 2011) (Letter Op.) at 1 n. 2 ("This Court notes that Plaintiff's expert physician is a Board Certified Pediatric Gastroenterologist. Pursuant to 18 Del. C. § 6853(c), an expert signing an Affidavit of Merit shall be "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(s), and the expert shall be Board certified in the same or similar field of medicine if the defendant(s) is Board certified." However, Defendant Brian J. Duffy, M.D.'s Board Certification is not specified in the parties' submissions; Defendant's motion simply states that the "same or similar field of medicine" as that at issue in this case is "General Surgery." Def.'s Mot. for Review of the Affidavit of Merit at ¶ 4(f). Therefore, at this juncture, this Court finds that Plaintiff's affidavit of merit satisfies the requirements of § 6853(c), although this determination shall be without prejudice to Defendant's ability to challenge the sufficiency of Plaintiff's Affidavit of Merit vis-à-vis Defendant Duffy on the basis of disparate Board Certifications, contingent upon further clarification of Defendant Duffy's Board Certification credentials.").
Defendant's renewed motion asserts that Plaintiff's expert physician's Board certification in Pediatric Gastroenterology, a subspecialty of Pediatrics, is sufficiently dissimilar from Defendant's Board certifications in Pediatric Surgery and General Surgery as to render Plaintiff's expert physician ineligible to satisfy 18 Del. C. § 6853(c). In relevant part, § 6853(c) provides:
Def.'s Renewed Mot. for Review of the Affidavit of Merit at 1-2 (Lexis I.D. 37296357).
An expert signing an affidavit of merit shall be licensed to practice medicine as of the date of the affidavit; and in the 3 years immediately preceding the alleged negligent act has 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 or defendants and the expert shall be Board certified in the same or similar field of medicine if the defendant or defendants is Board certified.
As used in § 6853(c), the phrase "the same or similar" is not defined. However, 18 Del. C. § 6850 states that "[a]ny legal term or word of art used in this chapter, not otherwise defined, shall have such meaning as is consistent with the common law." The reported cases do not disclose a uniform methodology for determining whether a given specialty is sufficiently "similar" to the defendant's specialty. Nonetheless, it is clear that "the requirements for an Affidavit of Merit are `minimal.'" Indeed, an expert's satisfaction of § 6853 does not necessarily render that that expert competent to provide medical testimony on the standard of care; 18 Del. C. § 6854 states that "[n]o person shall be competent to give expert medical testimony as to applicable standards of skill and care unless such person is familiar with the degree of skill ordinarily employed in the field of medicine on which he or she will testify." As noted by this Court, "the fact that a physician is qualified to provide an affidavit under § 6853(c) prior to discovery by the opposing party does not automatically qualify [him or her] to offer an opinion regarding standard of care at trial."
Wilson v. James, 2010 WL 1107787, *2 (Del. Super. Ct. 2010).
Id.
Plaintiff's response to Defendant's renewed motion asserts that "[t]here is an overlap of the fields of gastroenterology and general surgery in regard to the placement of the gastrostomy tube in that the procedure may be performed by a physician in either field." Plaintiff's counsel amplified this response via a letter filed with the Court; this letter states that, as a Board certified Pediatric Gastroenterologist, Plaintiff's expert physician "has experience and training in performing pediatric gastric surgical procedures, such as the stoma measurement and repair of a gastric perforation performed upon [Plaintiff's decedent]." Plaintiff's Response also included an official publication of the Alfred I. duPont Hospital for Children, the institutional defendant in this case, which indicates that the services performed by gastroenterologists include "gastrostomy tube placements."
Pltf.'s Response at ¶ 3 (Lexis I.D. 37315784).
Pltf.'s Letter of Apr. 28, 2011 at 1 (Lexis Transaction I.D. 37300779). Also, in his Affidavit, Plaintiff's expert physician asserts that "[f]rom [his] training and experience in the field of pediatric gastroenterology, [he is] familiar with the applicable standards of care of a physician in treating an infant with suspected peritonitis and gastric perforation, which are listed as the `Cause of Death' on the death certificate of [Plaintiff's decedent]."
Pltf.'s Response Ex. B (Lexis I.D. 37315784).
Further, Plaintiff notes that the Complaint alleges that Defendant negligently supervised co-defendant Kelly A. Pruden, C.P.N.P., the nurse practitioner who actually performed the instant gastric procedure. In turn, Plaintiff contends that both Defendant and Plaintiff's physician expert were employed in similar supervisory roles at children's hospitals, which renders Plaintiff's physician expert "knowledgeable as to the care needed when performing a gastric surgical procedure and the supervisory role of a physician over a nurse practitioner performing a gastric surgical procedure.
Pltf.'s Letter of Apr. 28, 2011 at 1 (Lexis Transaction I.D. 37300779); see also Pltf.'s Response ¶ 4 (Lexis I.D. 37315784) ("In fact, it would be fair to argue that the procedure negligently performed by Kelly Pruden should have been performed by a pediatric gastroenterologist rather than a surgical nurse practitioner, since a gastroenterologist specializes in the digestive system.").
Pltf.'s Letter of Apr. 28, 2011 at 1 (Lexis Transaction I.D. 37300779).
The determination that an expert's Board certification is "similar" to a defendant's is inherently case-specific. Although the requirements for an putative expert's competency, as defined by § 6854, do not include the requirement that the expert be Board certified in the "same or similar" specialty as that of the defendant, the Supreme Court of Delaware's articulation of what factors which render an expert's specialty sufficiently "concurrent" to a defendant physician's as to establish that expert's competency is illustrative to this Court's evaluation of whether a Board certification is sufficiently "similar" to Defendant's Board certification. In holding that a gynecologist was competent to offer testimony against a general surgeon about the standard of care in performing a laproscopic appendectomy, the Supreme Court of Delaware acknowledged that there may be a "common standard of care" with respect to certain procedures. Put differently, "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." Consequently, if the differences between the defendant's specialty and the proffered expert's specialty do not affect the applicable standard of care, the proffered expert is competent to testify.
Balan v. Horner, 706 A.2d 518, 520 (Del. 1998).
Baoust v. Krout, 377 A.2d 4, 7 (Del. 1977) (holding that an infectious disease specialist was competent to testify against a neurosurgeon on the issue of whether a particular neurosurgical procedure was necessary to cure or prevent a specific infection because a "common standard of care" existed due to the "concurrent expertise" on that issue).
Balan, 706 A.2d at 520 ("It is apparent from [the plaintiff's expert's] testimony that there are differences in the way that surgeons and gynecologists performs laparoscopies. Those differences, however, do not impact the standard of care."). Cf. Pavey v. Kaish, 3 A.3d 1098 (Del. 2010) (holding that it was an abuse of discretion for the Superior Court to exclude Plaintiff's expert physician, notwithstanding the facts that Plaintiff's expert had not performed surgery in over 20 years due to an injury and was Board certified in General Surgery, but opined that the defendant were negligent based on their failure to remove Plaintiff's decedent's catheter in an operating room (rather than monitoring room) with a thoracic surgeon present) (citing Balan, 706 A.2d at 520); but cf. Friedel v. Osunkoya, 994 A.2d 746, 764 (Del. Super. Ct. 2010) (holding that reading 18 Del. C. § 6854 in pari materia with the statutory requirements of § 6853 precludes a pharmacologist from testifying about the standard of care applicable to a physician).
In this case, Plaintiff has proffered a physician who is Board certified in Pediatrics and Pediatric Gastroenterology. These certifications have apparently provided Plaintiff's expert physician with experience and training in gastric surgical procedures, including the instant procedure. Similarly, as disclosed in the publication released by institutional defendant Alfred I. duPont Hospital for Children, pediatric gastroenterologists perform gastrostomy tube placements, the very procedure at issue in this case. Finally, Plaintiff's expert physician is also "knowledgeable" as to the standard of care applicable to a physician acting in a supervisory role over a nurse practitioner performing a gastric surgical procedure, as occurred herein. As a result, Plaintiff's expert physician is "familiar with the degree of skill ordinarily employed" by physicians supervising nurse practitioners in this context.
Pltf.'s Letter of Apr. 28, 2011 at 1 (Lexis Transaction I.D. 37300779).
See supra note 6; Pltf.'s Response at ¶ 7 ("As Plaintiff has submitted an Affidavit of Merit of a Board Certified Pediatric Gastroenterologist, who is as qualified, if not more qualified, to perform and supervise the type of procedure negligently supervised by [Defendant], Plaintiff has met her burden of showing merit in [her] claims.").
See supra note 7.
Pltf.'s Letter of Apr. 28, 2011 at 1 (Lexis Transaction I.D. 37300779).
The Affidavit of Merit requirements of § 6853(c) are "a preliminary hurdle intended for the early stages of a medical negligence lawsuit" with "minimal" requirements. In this case, Plaintiff has submitted an Affidavit of Merit signed by an expert who is Board certified in Pediatrics and Pediatric Gastroenterology. As a result of attaining these particular Board certifications, Plaintiff's expert physician has training and experience in performing and supervising pediatric gastric surgical procedures, including the very procedure at issue. Thus, given the nature of Plaintiff's allegations in this case, this Court is concludes that Plaintiff's expert physician is Board certified in a "similar" field of medicine as Defendant. Accordingly, for all the reasons stated above, this Court again finds that the Affidavit of Merit complies with 18 Del. C. § 6853(a)(1) and (c).
Divita v. Sweeney, 2010 WL 5313492, *2 (Del. Super. Ct. 2010) (citing Wilson, 2010 WL at *2).