Opinion
C.A. No. K10C-10-035 WLW.
February 23, 2011.
ORDER
Defendant has filed a motion in this medical malpractice action requesting that the Court review the sufficiency of an affidavit of merit. For the reasons set forth in this order, the Court finds that the affidavit does not meet the requirements of law.
FACTS
William Dickenson ("Plaintiff") obtained a hip replacement on October 23, 2010. The surgery was performed by David Sopa, D.O. ("Defendant"). Plaintiff alleges that Defendant committed medical malpractice. The complaint asserts that Defendant was unreasonably careless in five different ways:
(a) Defendant failed to properly locate the acetabular shell;
(b) Defendant failed to properly place the ball head of the implant in the shell;
(c) Defendant failed to properly follow up radiographic studies;
(d) Defendant failed to recognize that the 1 ½ inch difference in leg length made Plaintiff susceptible to dislocation of the right implant;
(e) Defendant failed to reasonably perform the surgery.
The complaint further alleges that Defendant's breach of the professional standard of care actually and proximately caused him to suffer injuries including: great pain, suffering, and physical discomfort from additional medical procedures, tests, the rap y, and medications.
Standard of Review
An affidavit of merit is a preliminary requirement in medical malpractice actions that is intended to screen out frivolous claims. The affidavit must contain:
Divita v. Sweeney, 2010 WL 5313492 at *2 (Del. Super. Ct. Nov. 29, 2010).
(1) The proposed expert's signature;
(2) An affirmation that the expert finds that there are reasonable grounds to believe that Defendant breached the professional standard of care;
(3) A statement that the alleged breach was the proximate cause of the injuries claimed in the complaint;
(4) A statement that the proposed expert is licensed to practice medicine as of the date of the affidavit;
(5) A statement that the proposed expert has 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 in the three year years immediately preceding the alleged negligent act;
(6) A statement that the expert is board certified in the same or a similar field of medicine as the defendant.
(7) Additionally, the affidavit of merit must be accompanied by a "current curriculum vitae."
DISCUSSION
Plaintiff submitted an affidavit of merit signed by Richard P. DuShuttle, M.D. ("Dr. DuShuttle"). The affidavit principally meets most of the requirements, except as noted herein. It asserts that Dr. DuShuttle finds that there are reasonable grounds for believing that Defendant breached the standard of care, and that Defendant's negligence was the proximate cause of Plaintiff's injuries. The affidavit asserts that Dr. DuShuttle has been licenced to practice medicine in Delaware since 1988. It asserts that Dr. DuShuttle has worked as an orthopedic surgeon in Delaware from 1988 to present. It further asserts that Dr. DuShuttle was Board certified in 1988, 1999, and 2010. The affidavit states that Dr. DuShuttle's most recent certification was granted by the American Board of Orthopedics, but it does not state which Board certified him in pervious years. Neither is it expressly stated that he has been continually certified as an orthopedic surgeon since 1988. Additionally, it is not expressly stated that Dr. DuShuttle is certified by the same Board as Defendant. Finally, the affidavit contains a short summary of Dr. DuShuttle's educational and professional background; although, there is no separate curriculum vitae attached to the affidavit.The affidavit contains almost all of the required information. Unfortunately, it has several shortcomings. First, the short summary of Dr. DuShuttle's educational and professional background does not amount to a current curriculum vitae. Second, it misspells Plaintiff's name. The proper spelling is important because the affidavit must clearly show that the witness is testifying about the injuries Plaintiff allegedly suffered through Defendant's negligence. Third, it does not expressly state that Dr. DuShuttle is Board certified in the same or a similar field as Defendant.
CONCLUSION
For the foregoing reasons, the Court finds the affidavit insufficient. Plaintiff is hereby given ten days from the date of this order to file an amended affidavit of merit. The amendment shall ensure that: (1) the affidavit of merit is supported by an attached copy of Dr. DuShuttle's current curriculum vitae; (2) Plaintiff's name is spelled correctly; and (3) it is expressly stated that Dr. DuShuttle is Board certified in the same or a similar speciality as Defendant.
IT IS SO ORDERED this 23rd day of February, 2011.