Opinion
C.A. No. N15C-04-207 FSS
08-11-2015
MARIANNE PALACIO, as Guardian for NANCY MITCHELL, Plaintiff, v. PREMIER HEALTHCARE, INC. d/b/a NEWARK MANOR NURSING HOME, INC., a Delaware corporation, Defendant.
JURY TRIAL DEMANDED
ORDER
Upon Review of the Affidavit of Merit - Rejected
On July 21, 2015, Defendant moved to have the court review Plaintiff's affidavit of merit, in camera, to determine whether it complies with 18 Del. C. § 6853(a)(1) and (c). The affidavit does not comply because it does not say whether the standard of care's breaches caused Ms. Mitchell's injuries.
In Delaware, a healthcare medical negligence lawsuit's filing must include an affidavit of merit, signed by an expert and accompanied by the expert's curriculum vitae The expert must also be licensed to practice as of the affidavit's date and engaged in the same or similar field as Defendant in the three years immediately preceding the alleged negligent act. The affidavit must state that reasonable grounds exist to believe Defendant was negligent, and that negligence proximately caused Plaintiff's injury. If the required affidavit is not filed, the suit shall be dismissed.
Id. § 6853(a)(1).
Id. § 6853(c).
Id.
Id. § 6853(a).
An affidavit of merit is not required for negligent supervision, hiring, or other administrative claims against a healthcare provider. To be clear, the court does not hold that Plaintiff's burden can be met without an expert at trial. Rather, § 6853 does not require an affidavit of merit from an expert at this stage of the proceedings.
See Saddler v. Nanticoke Mem'l Hosp., C.A. No. N12C-04-062-RRC, 2012 WL 8646550 (Del. Super. Dec. 24, 2012).
Here, the allegations boil down to three claims: (1) negligent medical care of a dementia patient resulting in burns, (2) negligent medical treatment of those burns, and (3) negligent hiring, training, and supervising employees. An affidavit of merit is required for the two, medical negligence claims.
Plaintiff's affiant is a statutorily qualified doctor who opines that Defendant breached the standards of care. Affiant offers no opinion, however, that the negligence proximately caused Ms. Mitchell's injuries. For example, affiant only opines that "Ms. Mitchell was allowed to spill a hot cup of coffee onto her lap."
The court must be satisfied that the expert is prepared to meet the "but for" proximate cause standard. "If the expert believes Defendant's negligence proximately caused [Plaintiff's] injuries, the affidavit should say so in simple, clear language." Otherwise, without a proper affidavit, this case may not go on.
Ellet v. Ramzy, No.Civ. A. 04C03201FSS, 2004 WL 2240153 (Del. Super. Sept. 29, 2004).
Kalinowski v. Adams, C.A. No. 12C-01-063 FSS, 2012 WL 1413999, at *1 (Del. Super. Mar. 9, 2012).
Id.
Because the affidavit substantially complies with the statute and the deficiency may be merely a drafting error, the court will allow Plaintiff three weeks from this order's date in which to file an acceptable affidavit of merit, clearly stating that as to both claims, "but for Defendant's negligence, Plaintiff's injuries would not have occurred," if that is what the expert believes.
Id. at *2. --------
If the affidavit is amended, the court will review it. If the affidavit is not perfected in time, the court will dismiss the complaint without further notice or opportunity to be heard. If another deficient affidavit is timely filed, the court will only accept a further filing on pain of sanctions.
IT IS SO ORDERED.
/s/ Fred S. Silverman
Judge cc: Prothonotary (Civil)
Gary S. Nitsche, Esquire
Maria R. Granaudo Gesty, Esquire