Opinion
C.A. No. 04C-12-028 WLW.
Submitted: February 4, 2005.
Decided: March 30, 2005.
Upon Defendants' Motion for In Camera Review of Affidavit of Merit and Motion to Dismiss. Denied.
Stephen A. Hampton, Esquire of Grady Hampton, LLC, Dover, Delaware; attorneys for the Plaintiffs.
Steven F. Mones, Esquire and Daniel L. McKenty, Esquire of McCullough McKenty, P.A., Wilmington, Delaware; attorneys for the Defendants.
ORDER
Upon consideration of Defendants' motion for an in camera review of the affidavit of merit filed by Plaintiff and the record before this Court, it appears to the Court:
All healthcare negligence complaints filed in this State must be accompanied by an affidavit of merit signed by an expert witness and the current curriculum vitae of that expert witness. The affidavit of merit and curriculum vitae shall be filed in a sealed envelope which will remain closed and confidential subject only to an in camera inspection by the Court upon request. Defendants have motioned this Court to review the affidavit of merit and determine whether Plaintiff's action has been filed in compliance 18 Del. C. § 6853. This Court must review the affidavit of merit to ensure that it sets forth the expert's opinion that there are reasonable grounds to believe that the applicable standard of care was breached by the named defendants and the breach was a proximate cause of the injuries sustained. This Court must also review the curriculum vitae to verify that the expert signing the affidavit of merit is a qualified expert as defined by the statute and 18 Del. C. § 6854.
18 Del. C. § 6853 (d) provides:
Upon motion by the defendant the court shall determine in camera if the affidavit of merit complies with subdivision (a)(1) and subsection (c) of this section. The affidavit of merit shall not be discoverable in any medical negligence action. The affidavit of merit itself, and the fact that an expert has signed the affidavit of merit, shall not be admissible nor may the expert be questioned in any respect about the existence of said affidavit in the underlying medical negligence action or any subsequent unrelated medical negligence action in which that expert is a witness.
18 Del. C. § 6854 provides:
No person shall be competent to give expert medical testimony as to the 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.
This Court has inspected the file and finds that the affidavit of merit and its accompanying curriculum vitae of Plaintiff's expert witness were filed properly with the Court in a sealed envelope as required by 18 Del. C. § 6853 (a)(1). Upon review of the affidavit of merit and the curriculum vitae, this Court finds:
1. An expert witness has signed the affidavit of merit.
2. A current curriculum vitae of the expert accompanies the affidavit of merit.
3. The expert witness was licensed to practice medicine as of the date of the affidavit of merit.
4. The expert witness is currently board certified in internal medicine and has previously testified against physicians who were board certified in emergency medicine and internal medicine.
5. The expert witness has been regularly engaged in the treatment of patients in the field or similar field of medicine as Defendant Tammy Kastre, MD for more than the last three years.
18 Del. C. § 6853(c) requires that the expert witness be engaged in the treatment of patients and/or the academic side of medicine in the same or similar field of medicine as the defendants in the three years immediately preceding the negligent act, not three years prior to signing the affidavit. It appears that Plaintiff used the wrong standard in their affidavit. However, the statute does not require the correct standard be stated on the affidavit, only that the expert signing the affidavit be qualified. Having reviewed the expert's current curriculum vitae, this Court is satisfied that Plaintiff's expert is an expert in the field of internal medicine and was engaged in the practice of internal medicine in the immediate three years preceding Defendants' alleged negligent conduct.
6. The affidavit of merit sets forth the expert's opinion that the standard of care for treating Gregory Smith, decedent, in 2002 was essentially the same as the standard of care for a doctor who is board certified in internal medicine and emergency medicine.
7. The affidavit of merit sets forth the expert's opinion that there are reasonable grounds to believe that the applicable standard of care was breached by Defendants Dr. Tammy Kastre, MD and First Correctional and that their breaches were a proximate cause of Mr. Smith's pain, suffering and death.
Thus, having reviewed in camera the affidavit of merit and its accompanying curriculum vitae of Plaintiff's expert witness, this Court finds that the affidavit of merit is legally sufficient and complies with the statutory requirements contained in 18 Del. C. § 6853. Accordingly, Defendants' motion to dismiss is denied.
IT IS SO ORDERED.