Laura D. Fisher v. Urology Associates of Delaware, P.A.

• Court: Superior Court of Delaware
• Decided: September 19, 2024
• Docket: K24C-07-035 RLG
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LAURA D. FISHER, ) ) Plaintiff, ) ) C.A. No.: K24C-07-035 RLG v. ) ) UROLOGY ASSOCIATES ) OF DELWARE, P.A., a Delaware ) corporation, and GREGORY ) SPANA, M.D. Individually, ) ) Defendants. )

Submitted: August 23, 2024 Decided: September 19, 2024

ORDER

Upon Review of the Affidavit of Merit – COMPLIANT.

William D. Fletcher, Jr., Esquire and Dianna E. Stuart, Esquire, Schmittinger & Rodriguez, P.A., Dover, Delaware. Attorneys for Plaintiff.

Zoe Plerhoples, Esquire and Gregory S. McKee, Esquire, Wharton Levin Ehrmantraut & Klein P.A., Wilmington, Delaware. Attorneys for Defendants.

GREEN-STREETT, J. 1 This matter involves a medical negligence suit filed by Plaintiff, Laura D.

Fisher, against Defendants Gregory Spana, M.D. and Urology Associates of

Delaware, P.A. (“UAD”). Plaintiff alleges that Dr. Spana’s and UAD’s negligent

medical care caused Plaintiff’s pain, suffering, and need for corrective surgeries.

Specifically, Plaintiff alleges that Dr. Spana, and vicariously UAD, negligently

performed a cystoscopy and failed to take corrective measures once complications

arose.

Dr. Spana and UAD move for an in camera review of Plaintiff’s Affidavit of

Merit to determine whether it complies with the requirement of 18 Del. C. §§

6853(a)(1) and (c). Plaintiff filed an expert’s affidavit and the expert’s curriculum

vitae in this case. The Court performed the review requested.

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

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

curriculum vitae.1 As a general matter, an affidavit that tracks the statutory language

complies with the statute.2 The expert signing the affidavit must be licensed to

practice medicine as of the date of the affidavit and engaged in practice in the same

or similar field of medicine as the defendant in the three years immediately preceding

1 Flamer v. Nanticoke Memorial Hospital, 2020 WL 113911, at *1 (Del. Super. Jan 9, 2020) (quoting 18 Del. C. § 6853(a)(1) & (c)). 2 Dishmon v. Fucci, 32 A.2d 338, 342 (Del. 2011).

2 the alleged negligence.3 The affidavit must also recite that reasonable grounds exist

to believe that each defendant was negligent in a way that caused the plaintiff’s

injuries.4 While the affidavit of merit must be filed under seal, a defendant may

request the Court to review it in camera to ensure that it complies with the statute’s

requirements.5

As requested, after an in camera review of the Affidavit of Merit and the

expert witness’s curriculum vitae, the Court finds:

1. The expert signed the affidavit.

2. The expert attached a current curriculum vitae.

3. The expert is currently licensed to practice medicine.

4. The expert has been treating patients in the same field of medicine as

Dr. Spana for over three years, including the three years immediately

preceding the alleged negligent conduct. Namely, the affidavit and

accompanying curriculum vitae specifically reference the expert’s

experience in the fields of urology, urogynecology, and pelvic

reconstructive surgery. The expert possesses familiarity with the

specific procedures Ms. Fisher underwent; holds board certifications in

3 Flamer, 2020 WL 113911, at *1 (quoting § 6853(c)). 4 Id. 5 Id. at *1 (quoting § 6853(d)). 3 urology, urogynecology, and pelvic reconstructive surgery; and

completed a fellowship in female urology, urodynamics, and

neurourology. The expert has also published a significant number of

works on this particular area of medicine.

5. The expert recites and specifically lists his grounds to believe that Dr.

Spana and UAD breached the applicable standard of care, as it related

to the diagnosis and treatment of Plaintiff’s condition, and that the

breach was a proximate cause of her pain, suffering, and need for a

corrective surgery.

The Affidavit of Merit contains the information required by 18 Del. C. §§ 6853(a)(1)

and (c) as to the allegations involving Dr. Spana and UAD. Therefore, the Affidavit

of Merit is COMPLIANT.

IT IS SO ORDERED.