Farmer v. Manor Care of Wilmington, DE, LLC ( 2018 )


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  •       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
    TROY FARMER, Personal                         )
    Representative of the Estate                  )
    of CARL METZ,                                 )
    )
    Plaintiff,                        )
    )
    v.                                      )     C.A. No. N18C-06-010 ALR
    )
    MANOR CARE OF WILMINGTON,                     )
    DE, LLC, a Delaware Limited Liability         )
    Company, individually and d/b/a               )
    MANOR CARE HEALTH SERVICES                    )
    —Wilmington                                   )
    Submitted: July 27, 2018
    Decided: August 2, 2018
    Upon Defendant’s Motion to Determine if the Affidavit of Merit Complies with
    Sections (a)(1) and (c) of Title 18 § 6853
    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; the Affidavit of
    Merit; and statutory and decisional law, the Court hereby finds as follows:
    1.    On July 27, 2018, Defendant moved for Court review of Plaintiff’s
    affidavit of merit, in camera, to determine whether it complies with 
    18 Del. C
    .
    6853(a)(1) and (c).
    2.    Pursuant to 
    18 Del. C
    . § 6853(a)(1), 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,
    stating that there are reasonable grounds to believe that there has been healthcare
    medical negligence committed by each defendant.1 More specifically, pursuant to
    
    18 Del. C
    . § 6853(c), the affidavit of merit must set forth the expert’s opinion that
    “there are reasonable grounds to believe the applicable standard of care was
    breached by the named defendant or defendants and that the breach was a proximate
    cause of injury or injuries claimed in the complaint.”2 In addition, pursuant to 
    18 Del. C
    . § 6853(c), the expert witness shall have the following qualifications:
    [The] expert signing the 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 or defendants, and the
    expert shall be Board certified in the same or similar field of medicine
    if the defendant or defendants is Board certified.3
    3.     Plaintiff’s affidavit of merit does not comply with 
    18 Del. C
    . §
    6853(a)(1) and (c). First, the “affidavit of merit” was not made under oath. Second,
    Plaintiff’s expert does not state that there are reasonable grounds to believe the
    applicable standard of care was breached and that the breach was a proximate cause
    of Plaintiff’s injuries. Third, the expert’s curriculum vitae is not a current version,
    1
    
    18 Del. C
    . § 6853(a)(1).
    2
    
    18 Del. C
    . § 6853(c).
    3
    
    18 Del. C
    . § 6853(c).
    2
    such that the Court cannot discern whether the expert meets the qualifications set
    forth in the statute.
    4.     While there are deficiencies in Plaintiff’s affidavit of merit, “[t]he
    statute does not … contemplate that affidavits that are initially incomplete are
    automatically subject to outright dismissal.”4      The nature and scope of the
    deficiencies may have been the result of administrative error.5 The Court “must give
    weight to Delaware’s well-known public policy that favors permitting a litigant to
    have his day in court.”6
    5.     To that end, the Court will allow Plaintiff 30 days to comply with the
    statutory requirements. If Plaintiff files an affidavit of merit and curriculum vitae
    that comply with 
    18 Del. C
    . § 6853(a)(1) and (c) within 30 days, the lawsuit shall
    move forward. If Plaintiff does not file an affidavit of merit and curriculum vitae
    that comply with the statutory requirements, the Court will dismiss the complaint.
    NOW, THEREFORE, this 2nd day of August, 2018:
    1.     Plaintiff’s affidavit of merit does not comply with 
    18 Del. C
    . §
    6853(a)(1) and (c).
    4
    Dishmon v. Fucci, 
    32 A.3d 338
    , 345 (Del. 2011).
    5
    Janssen v. Christiana Care Health System, Inc., 
    2015 WL 105727
    , at *1 (Del.
    Super. Feb. 10, 2015) (stating that a defect in an affidavit of merit could have been
    a mere drafting error).
    6
    
    Dishmon, 32 A.3d at 344
    .
    3
    2.    Plaintiff is granted leave to file an affidavit of merit and curriculum
    vitae that comply with 
    18 Del. C
    . § 6853(a)(1) and (c) within 30 days.
    IT IS SO ORDERED.
    Andrea L. Rocanelli
    ____________________________
    The Honorable Andrea L. Rocanelli
    4
    

Document Info

Docket Number: N18C-06-010 ALR

Judges: Rocanelli J.

Filed Date: 8/2/2018

Precedential Status: Precedential

Modified Date: 8/2/2018