Savage v. Bayhealth, Inc.

• Court: Superior Court of Delaware
• Decided: December 4, 2018
• Docket: N18C-05-185 AML
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ASHLEE SAVAGE, Individually, And as Parent and Next Friend of ZAEDEN FREEMAN, a minor,

Plaintiffs,

v. C.A. NO.: N18C-05-185 AML

BAYHEALTH, INC., d/b/a JURY TRIAL OF 12 DEMANDED BAYHEALTH MILFORD MEMORIAL HOSPITAL, BAYPHEALTH MEDICAL CENTER, INC. d/b/a BAYHEALTH MILFORD MEMORIAL HOSPITAL, DELMARvA EMERGENCY PHYSICIANS, LLP, and DANIEL TEKLAY, M.D.,

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Defendants.

Submitted: November 8, 2018 Decided: December 4, 2018

ORDER

Upon Review of the Affidavit of Merit - Accepted

On November 8, 2018, Defendants DelMarVa Emergency Physicians, LLP and Daniel Teklay, MD (collectively “Defendants”) moved to have the Court

review Plaintiff’s affidavit of merit, in camera, to determine Whether it complies

With 18 Del. C. §§ 6853(3)(1)and(c).1

1 18 Del. C. § 6853(d).

Specifically, Defendants asked the Court to determine Whether the affidavit: (l) is signed by an expert Witness; (2) is accompanied by a curriculum vitae; (3) gives an opinion that there has been a breach in the standard of care by the Defendants; (4) gives an opinion that each breach against each defendant Was a proximate cause of the injuries alleged in the complaint; and (5) indicates the expert is licensed to practice medicine as of the date of the affidavit, and the curriculum vitae establishes that the expert, for the three years 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 Defendants, Which in this case is emergency medicine.

In Delaware, a healthcare negligence lawsuit must be filed With an affidavit of merit, 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 the same or similar field as the defendant in the three years immediately preceding the alleged negligence3 The affidavit must state that reasonable grounds exist to believe the defendant Was negligent in a Way that

proximately caused the plaintiff’s injury.4 The statute’s requirements are minimal.

2 Id. § 6853(a)(1). 3 Id. § 6853(0). Although Defendants’ motion is phrased as though the curriculum vitae must establish that the expert has been engaged in the treatment of patients or teaching for the three years preceding the alleged negligent acts, section 6853 does not so require. Rather, under 4Section 6853, such experience may be attested to in the affidavit

Id.

Accordingly, an affidavit of merit tracking the statutory language complies With the statute.5

After in camera revieW, the Court finds:

l. An expert signed the affidavit;

2. The affidavit Was accompanied by a current curriculum vitae;

3. The expert is Board certified in Emergency Medicine, the same field as the Defendants;

4. In the three years preceding the negligent acts, the expert Was engaged in the treatment of patients and in the teaching/academic side of medicine in the same field of medicine as Defendants;

5. The affidavit states that there are reasonable grounds to believe the applicable standard of care Was breached by each Defendant, including DelMarVa Emergency Physicians, LLP and Daniel Teklay, MD; and

6. The expert states these breaches of the standard of care proximately

caused Plaintiff’ s injury as alleged in the complaint

5 See Dishmori v. Fucci, 32 A.3d 338, 342 (Del. 2011) (“In order to satisfy the prima facie burden, an Affidavit of Merit must only contain an expert’s sworn statement that medical negligence occurred, along With confirmation that he or she is qualified to proffer a medical opinion.”).

Considering the above, the Court finds that the affidavit of merit complies With 18 Del. C. §§ 6853(a)(1) and (c) as to Defendants DelMarVa Emergency Physicians, LLP and Daniel Teklay, MD

IT IS SO ORDERED.

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Ab@ @ail'M. LeroW, Judge

Original to Prothonotary

cc: Thomas J. Marcoz, Esquire Robert H. Bouse, Esquire Gregory L. VanGeison, Esquire Kristina L. Miller, Esquire Donald L Gouge, Jr., Esquire Keith D. Forman, Esquire Mary M. Koch, Esquire Sarah Smith, Esquire