Opinion
C.A. No. 08C-04-218 (MJB).
Submitted: July 11, 2008.
Decided: July 25, 2008.
Upon Defendant's Motion to Determine if Plaintiff's Affidavit of Merit Complies with 18 Delaware Code § 6853.
ORDER
This is a medical negligence claim filed by Deborah Spicer, individually, and on behalf of her daughter Brittany Spicer ("Plaintiff") against Dr. Abimbola Osunkoya, M.D. ("Dr. Osunkoya") and several co-defendants.
Pursuant to 18 Del. C. § 6853(a)(1), a medical negligence complaint must be accompanied by an Affidavit of Merit and 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 as the defendant(s), and the expert shall be Board certified 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.
On July 3, 2008, Dr. Osunkoya and co-defendant Delaware Primary Care, LLC filed a Motion for Review of Plaintiff's Affidavit of Merit. Plaintiff responded to the Motion on July 11, 2008. The Court has reviewed two Affidavits of Merit that are specific to the medical treatment provided by Dr. Osunkoya and Delaware Primary Care, and the Court finds as follows:
1. Both Affidavits are signed by expert witnesses.
2. Both Affidavits are accompanied by a current curriculum vitae.
3. Both Affidavits set forth the experts' opinions that there are reasonable grounds to believe that Dr. Osunkoya and Delaware Primary Care committed medical negligence, which was a substantial contributing factor of Plaintiff's injuries.
4. Both experts were licensed physicians as of the date of the Affidavits.
5. For more than three years immediately prior to the alleged negligent act, both 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 Dr. Osunkoya and Delaware Primary Care.
6. One expert is board-certified in internal medicine and one expert is board-certified in pediatrics.
Id.
Having reviewed both Affidavits of Merit, the Court finds that Plaintiff has not met the requirements set forth in 18 Del. C. § 6853. It is well settled that stating that any breach of the applicable standard of care was a "substantial contributing factor" of Plaintiff's injuries is insufficient.
Ellet v. Ramzy, 2004 WL 2240153 (Del.Super. Sept. 29, 2004).
An Affidavit of Merit must demonstrate that an expert witness is "prepared to meet Delaware's more rigorous `but for' proximate cause standard."
Id.
Both of the Affidavits of Merit specific to Dr. Osunkoya and Delaware Primary Care fail to set forth the experts' opinions that the negligent acts of Dr. Osunkoya and Delaware Primary Care were a proximate cause of Plaintiff's injury.
Pursuant to 18 Del. C. § 6853(a)(2) the Court may grant a single 60-day extension for filing an Affidavit of Merit. The Delaware Supreme Court has held that this Court has the discretion to interpret this provision broadly in order to encourage the disposition of cases on the merits. Therefore, the Court will allow Plaintiff an additional 60 days from the date of this Order to file any additional affidavits as Plaintiff may choose.
Beckett v. Beebe Medical Center, Inc., 897 A.2d 753 (Del. 2006).
IT IS SO ORDERED.