Alston v. Westside Family Health Care, Inc. ( 2019 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TRAVIS J. ALSTON,
C.A. NO.: N18C-11-166 AML
Plaintiff,
TRIAL BY JURY OF
Vv. TWELVE DEMANDED
WESTSIDE FAMILY HEALTH
CARE, INC., CHRISTIANA CARE
HEALTH SYSTEM, INC., and
DOCTORS FOR EMERGENCY
SERVICES, INC.
New Nee ee” Nee ee “ee ee ee ee” ee” ee ee” ee”
Defendants.
Submitted: August 23, 2019
Decided: October 14, 2019
ORDER
Upon Review of the Affidavit of Merit — Rejected
On August 23, 2019, Defendant Doctors for Emergency Services, Inc. filed a
motion asking the Court to review Plaintiffs affidavit of merit, in camera, to
determine whether it complies with 18 Del. C. §§ 6853(a)(1) and (c).!
Specifically, Defendant asked the Court to determine that (1) the affidavit ts
signed by an expert witness; (2) the affidavit is accompanied by each expert’s
curriculum vitae; (3) “the affidavit includes an opinion that the standard of care was
breached by Doctors for Emergency Services, Inc., and/or its employees, rather than
'18 Del. C. § 6853(d). This case was reassigned to this judge on October 1, 2019.
vague references or lumping of parties with different specialties that do not conform
to the statute”; (4) the affiant opines that any breach attributed to the moving
Defendant and/or its employees was a proximate cause of injuries alleged in the
Complaint; (5) the affidavit or attached curriculum vitae demonstrates the expert
was licensed to practice medicine as of the date of the Affidavit; and (6) “the
affidavit or attached curriculum vitae establishes that the expert for the three years
preceding the allegedly 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 care at issue in this case, namely 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 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 negligence.’ The affidavit must state that
reasonable grounds exist to believe the defendant was negligent in a way that
proximately caused the plaintiff's injury.” The statute’s requirements are minimal.
? Defendant’s Motion for Review of the Affidavit of Merit 2-3.
3 Id. § 6853(a)(1).
4 Id. § 6853(c).
> Id.
Accordingly, an affidavit of merit tracking the statutory language complies with the
statute.°
Plaintiff's affiant opines that “there are reasonable grounds to believe that the
applicable standard of care was breached by the medical/health care defendants
named in this case, and that the breaches were a proximate cause of the injury to. .
. [Mr.] Alston.” By referring only to “defendants” collectively, the affiant fails to
meet the standard requiring an affidavit of merit be filed “as to” each defendant.’
The affidavit of merit does not specifically name the moving Defendant or any other
defendant.
Additionally, the expert’s curriculum vitae does not clearly establish that the
expert was engaged in the treatment of patients or teaching in the same or similar
field as the moving Defendant in the three years immediately preceding the alleged
negligence.®
Because the affidavit substantially complies with the statute and the
deficiencies merely may be a drafting error,’ the Court will allow Plaintiff 30 days
® See Dishmon 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.”).
718 Del. C. § 6853(a)(1).
® Three years immediately preceding the alleged negligence includes December 2013 — December
2016. It is unclear from the curriculum vitae the expert’s employment from December 2013 —
January 2015. Although the affidavit avers that this element is met, the curriculum vitae is difficult
to follow and does not plainly support the averment. Under these circumstances, an amended
curriculum vitae 1s appropriate.
9 Id. § 6853(a)(2).
from this Order’s date in which to file an acceptable affidavit of merit as to each
defendant, if that is what the expert believes. If an affidavit as to each defendant is
not perfected in time, the Court will dismiss the claims against that defendant
without further notice or opportunity to be heard.
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A gaitM. LeGréw, Judge
IT ISSO ORDERED.
Original to Prothonotary
cc: Bruce L. Hudson, Esquire
John D. Balaguer, Esquire
Roopa Sabesan, Esquire