Opinion
C.A. No. 08C-06-183 RRC.
Submitted: November 14, 2008.
Decided: December 1, 2008.
Upon Defendant John Goodill's "Motion to Determine if the Affidavit of Merit Complies with §§ (a)(1) and (c) of Title 18, § 6853.
Kenneth M. Roseman, Esquire, Kenneth M. Roseman, P.A., Wilmington, Delaware, Attorney for Plaintiff.
Bradley J. Gowert, Esquire, and Lorenza A. Wolhar, Esquire, Marshall, Dennehey, Warner, Coleman Groggin, Wilmington, Delaware, Attorneys for Defendant.
ORDER
Upon consideration of Defendant's "Motion to Determine if the Affidavit of Merit Complies with Sections (a)(1) and (c) of Title 18, § 6853," it appears to the Court that:
1. 18 Del. C. 6853 (a)(1) 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, and stating that there are reasonable grounds to believe that there has been healthcare medical negligence committed by each defendant.
2. In this case, the affidavit of merit was filed under seal, as required. Defendant John Goodill, M.D., has moved pursuant to 18 Del. C. § 6853(d) for in camera review of the affidavit to determine compliance with sections 6853(a)(1) and (c). The Court has reviewed the affidavit of merit and the accompanying curriculum vitae. The Court finds:
a. The affidavit is signed by an expert witness.
b. The affidavit apparently is not accompanied by a "current"curriculum vitae; the curriculum vitae states on page 2 that is was "updated March 18, 2005." The Court does not consider the curriculum vitae, which was last updated three years and eight months ago, to be "current," especially in the absence of any affirmative indication that it is, in fact, the expert's "most recent" curriculum vitae.
c. Although the expert does not state, in the words of § 6853, that there are "reasonable grounds to believe that the applicable standard of care was breached by Dr. Goodill and that the breach was a proximate cause [of the claimed injuries]," the expert does state:
I have reached the following conclusions and have formed the following opinions that I state to a reasonable degree of medical probability.
i. Dr. John Goodill violated the standard of care by performing a non-emergency surgical procedure without supplying information regarding such surgical procedure to the extent customarily given to patients by other licensed health care providers in the same field of medicine as Dr. Goodill.
ii. Following the lack of informed consent, Muriel Stewart died as a result of complications occurring during the surgical procedure.
The Court finds that the expert's affidavit does comport with the substance of § 6853 in this regard, although it would certainly be preferable for an expert's affidavit to track the exact wording of the statue.
d. The expert witness was licensed to practice medicine as of the date of the affidavit.
e. In the 3 years immediately preceding the alleged negligent act, the expert witness was engaged in the treatment of patients and/or in the teaching/academic side of medicine in the field of internal medicine.
f. The expert is certified in the same or similar fields of medicine as Defendant. The expert is Board certified in internal medicine, with a specialty board in pulmonary disease.
"Current" is defined as "new; present; most recent." THE AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE (4th Ed. 2004).
3. Therefore the Court, having reviewed in camera the affidavit of merit and accompanying curriculum vitae of plaintiff's expert witness, finds that the affidavit of merit complies with sections 6853(a)(1) and (c) of title 18 of the Delaware Code, with the exception that the curriculum vitae is apparently not current. Plaintiff shall have 30 days to submit a current curriculum vitae under seal, or otherwise shall advise the Court that the curriculum vitae last updated on March 18, 2005 is, in fact, the expert's "most recent" curriculum vitae.
IT IS SO ORDERED.