Opinion
C. A. No. N15C-05-177 MMJ
09-21-2015
DORIS JOYNER, Plaintiff, v. 810 BROOM STREET OPERATIONS, LLC, d/b/a HILLSIDE CENTER Defendant.
Upon Defendants' Motion to Determine if the Affidavit of Merit Complies with 18 Del. C. §§ 6853(a)(1) and (c) 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, no affidavit of merit was filed under seal. Pursuant to 18 Del. C. § 6853(d), Defendants requested in camera review of the affidavit to determine compliance with sections 6853(a)(1) and (c). Plaintiff argues that this case is not a "malpractice claim since the allegation is simply that they allowed the plaintiff, who was a double amputee, to fall off a table that she was on. This claim is akin to a slip and fall and there would be no need to have a doctor say that it is negligent to allow a person to fall off a therapy table."
By letter, Defendants respond that the complaint pleads "a variety of professional negligence allegations." In the alternative, if an affidavit of merit is not required, "Plaintiff should be precluded from producing any expert testimony addressing breach of the standard of care for a nursing home, physical therapist or physical therapy aide or breach of any applicable nursing home regulation."
THEREFORE, the Court finds that no affidavit of merit was filed in this case in compliance with sections 6853(a)(1) and (c) of title 18 of the Delaware Code. The question of whether or not this action should be dismissed for failure to file an affidavit if merit, and whether certain expert testimony should be excluded, are not properly before the Court as part of Defendants' instant motion. Dispositive motions and evidentiary motions in limine must be made pursuant to the Court's rules and procedures.
IT IS SO ORDERED.
/s/ Mary M . Johnston
The Honorable Mary M. Johnston