Cox v. Bayhealth Medical Center, Inc.

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TIFFANY COX and ALPHONSO ) KEMP, as Parents and natural guardians ) C.A. No. K19C-11-002 NEP of K.K., a minor, ) In and For Kent County ) Plaintiffs, ) v. ) ) BAYHEALTH MEDICAL CENTER ) INC., a Delaware Corporation, ROBERT ) Q. SCACHERI, M.D., BEVERLY A. ) SANTANA, MSN, CNM and ) DEDICATED TO WOMEN OB-GYN, ) P.A., ) ) Defendants. )

Submitted: March 23, 2020 Decided: April 30, 2020

ORDER

Upon Review of the Affidavits of Merit ACCEPTED

This matter involves a healthcare negligence suit filed by Plaintiffs Tiffany Cox

and Alphonso Kemp, as parents and guardians of K.K., a minor child, against Defendants

Robert Scacheri, M.D., Beverly Santana, MSN, CNM, Bayhealth Medical Center, Inc.,

and Dedicated to Women OB-GYN, P.A., (all Defendants hereinafter collectively

"Defendants"). Defendants Beverly Santana, MSN, CNM (hereinafter “Moving 1 Defendant Santana”), and Dedicated to Women OB-GYN, P.A. (hereinafter “Moving

Defendant DTW”), have asked the Court to review the affidavits of merit filed in this

case to determine whether they satisfy 18 Del. C. § 6853.

Plaintiffs filed their Complaint on November 1, 2019, alleging that Defendants

were medically negligent and breached the applicable standard of care, and that as a

result, K.K. suffered severe and permanent hypoxic ischemic brain injury. The

Complaint alleges that Moving Defendant Santana specializes in nursing and midwifery

and Moving Defendant DTW provides obstetrical and gynecological services to the

general public.

On March 3, 2020, this Court issued an Order finding that two of the three

affidavits of merit applicable to Moving Defendants failed to satisfy statutory

requirements because the curriculum vitae of each expert appeared to be out of date.1

The Court deferred decision on those two affidavits, giving Plaintiffs an additional

twenty-one days from the date of its Order to bring the affidavits of merit into compliance

with 18 Del. C. § 6853(c), i.e., by providing current curricula vitae. Plaintiffs have timely

done so, and thus the updated affidavits of merit are discussed below.

1 See Cox v. Bayhealth Medical Center, Inc., 2020 WL 1061789, at *2 (Del. Super. Mar. 3, 2020) (curricula vitae of expert who was a physician and of expert who was a registered nurse and certified nurse midwife did not appear to be current). The Court found that the affidavit of merit of the third expert, a registered nurse, complied with 18 Del. C. § 6853(a)(1) and (c). Id.

2 In Delaware, a healthcare negligence lawsuit must be filed with an affidavit of

merit as to each defendant, signed by an expert, and accompanied by the expert's current

curriculum vitae.2 The expert must be licensed to practice medicine as of the affidavit's

date and engaged in this practice in the same or similar field as the defendant in the three

years immediately preceding the alleged negligence, and Board certified in the same or

similar field as the defendant if the defendant is Board certified.3 The affidavit must also

state that reasonable grounds exist to believe that the defendant was negligent in a manner

that proximately caused the plaintiff's injury.4 The affidavit must be filed under seal and,

upon request, may be reviewed in camera to ensure compliance with statutory

requirements.5 The affidavit's requirements are "purposefully minimal."6 Affidavits that

merely track the statutory language are deemed sufficient.7

2 18 Del. C. § 6853(a)(1). 3 Id. § 6853(c). Of course, these requirements apply only if the expert is a physician, and the requirements regarding “same or similar field” apply only if the defendant is a physician. McNulty v. Correct Care Solutions, LLC, 2017 WL 1323711, at *2 (Del. Super. Apr. 7, 2017) (requirement of “same or similar” Board certification does not apply where defendant is not a physician); accord Zappaterrini v. St. Francis Hosp., Inc., 2009 WL 1101618, at *1) (Del. Super. Apr. 22, 2019) (“[B]ecause the defendant is not a physician, the statutory requirement of similar Board certification is not applicable.”). Here, the statutory requirements of “same or similar” Board certification, and practice in the “same or similar field,” are not applicable to Moving Defendants because neither Moving Defendant DTW nor Moving Defendant Santana is a physician. Moreover, all three experts in the present case may speak to whether Moving Defendants were negligent. 4 18 Del. C. § 6853(c). 5 Id. § 6853(d). 6 Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmon v. Fucci, 32 A.3d 338, 342 (Del. 2011)). 7 Dishmon, 32 A.3d at 342–43. 3 With regard to the two affidavits of merit that were deferred by the Court’s March

3, 2020, Order, the Court has performed an in camera review.

Turning to the first expert, a physician, the Court finds as follows:

a. The expert signed the affidavit.

b. The current curriculum vitae of the expert is attached.

c. The expert was licensed to practice medicine as of the date of the affidavit.

d. Although the “same or similar field” requirements are not applicable because

Moving Defendants are not physicians, the expert is Board certified in the fields

of Obstetrics and Gynecology and Maternal-Fetal Medicine and has experience

in those areas.

e. The affidavit states that reasonable grounds exist to believe that Moving

Defendants, along with the other Defendants, breached the applicable standard

of care, and that the breaches were a proximate cause of the injuries to K.K.

As for the second expert, the Court finds as follows:

c. The expert, who is a registered nurse and certified nurse midwife, has training

and experience in those fields.

d. The affidavit states that reasonable grounds exist to believe that Moving

4 Defendants, along with the other Defendants, breached the applicable standard

of care, and that the breaches were a proximate cause of the injuries to K.K.

WHEREFORE, in consideration of the above, the Court finds that the two

affidavits of merit previously deferred in the Court’s decision of March 3, 2020, comply

with 18 Del. C. § 6853(a)(1) and (c).

IT IS SO ORDERED.

/s/ Noel Eason Primos Judge

NEP/wjs Via File & ServeXpress oc: Prothonotary Counsel of Record File