Opinion
C.A. No. 09C-09-085 (MJB).
Submitted: November 18, 2009.
Decided: February 19, 2010.
Upon Defendants' Motions to Determine if Plaintiffs' Affidavits of Merit Comply with 18 Delaware Code § 6853
ORDER
This is a medical negligence claim filed by Harold Hudson, the personal administrator of the estate of the decedent, Constance Clancy (hereinafter "Ms. Clancy"), and Kathleen McCool, Karen Tortorella, and Patricia Pruitt, the children of Ms. Clancy (collectively "Plaintiffs") against Joseph Ciampoli, D.P.M., ("Ciampoli"), First State Foot and Ankle, P.A., LLC, Paul Sabini, M.D. individually and d/b/a The Center for Surgical Arts ("Sabini"), and CS Medical, LLC.
At all relevant times, Dr. Ciampoli was employed by and acting within the course and scope of his employment with First State Foot and Ankle, P.A., LLC. Dr. Sabini owned and/or operated and/or did business as a surgical center known as The Center for Surgical Arts. Similarly, at all relevant times, Dr. Sabini was employed by and acting within the course and scope of his employment for CS Medical and/or The Center for Surgical Arts. Plaintiffs claim that Ms. Clancy received negligent treatment from Dr. Ciampoli and Dr. Sabini during surgery.
First State Foot and Ankle, P.A., LLC is a named defendant solely for respondeat superior purposes.
CS Medical, LLC is a named defendant solely for respondeat superior purposes.
Pursuant to 18 Del. C. § 6853(a)(1), a medical negligence complaint must be accompanied by an Affidavit of Merit and a current curriculum vitae from a qualified expert witness. The Affidavit of Merit must be filed under seal, but a defendant can request an in camera review of the Affidavit to ensure that it complies with the specific statutory requirements.
18 Del. C. § 6853(c) provides as follows:
Qualifications of expert and contents of affidavit. The affidavit(s) of merit shall set forth the expert's opinion that there are reasonable grounds to believe that the applicable standard of care was breached by the named defendant's and that the breach was a proximate cause of injury(ies) claimed in the complaint. 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 if the defendant(s) is Board certified. The Board Certification requirement shall not apply to an expert that began the practice of medicine prior to the existence of Board certification in the applicable specialty.
Defendants Dr. Ciampoli, First State Foot Ankle, P.A., Dr. Sabini, and CS Medical, LLC filed a Motion for Review of Plaintiffs' Affidavits of Merit, in camera, to determine compliance with 18 Del. C. § 6853. The Court has reviewed three Affidavits of Merit that are specific to the medical treatment provided by the Defendants, and the Court finds as follows:
1. The Affidavits are signed by expert witnesses.
2. The Affidavits are accompanied by a current curriculum vitae.
3. The Affidavits state, with a reasonable degree of medical probability, that there are reasonable grounds to believe that the Defendants breached their standard of care for each claim alleged.
4. The experts were licensed physicians as of the date of the Affidavits.
5. For at least three years immediately prior to the alleged negligent act, the experts were engaged in the "treatment of patients and/or the teaching/academic side of medicine in the same or similar field of medicine" as the Defendants.
Id.
6. Two experts are board-certified in Anesthesiology, and one expert is board-certified in Podiatric Medicine.
Therefore, having reviewed the Affidavits of Merits, the Court finds that the Plaintiffs have met the requirements set forth in 18 Del. C. § 6853.
IT IS SO ORDERED.