Cox v. Bayhealth Medical Center, Inc. ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TIFFANY COX and ALPHONSO
KEMP, as Parents and natural guardians
of K.K., a minor,
Plaintiffs, C.A. No. K19C-11-002 NEP
In and For Kent County
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.,,
JURY TRIAL OF TWELVE
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Defendants.
Submitted: February 11, 2020
Decided: March 3, 2020
ORDER
Upon Review of the Affidavits of Merit
DEFERRED in part, ACCEPTED in part
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"). Defendant Bayhealth Medical Center, Inc. (hereinafter
“Moving Defendant”) has asked the Court to review the affidavits of merit filed in this
case to determine whether they satisfy 18 Del. C. § 6853.
In this case, Plaintiffs filed their Complaint on November 1, 2019, alleging that
Defendants were medically negligent and breached the applicable standard of care.
Specifically, with regard to the allegations against Moving Defendant, Plaintiffs allege,
inter alia, that Moving Defendant failed to provide timely and proper medical and
obstetric care, failed to provide timely and proper medical interventions, failed to
closely monitor, evaluate, and respond to Plaintiff Tiffany Cox’s medical status,
including but not limited to K.K.’s fetal heart rate readings, failed to timely perform a
cesarean section, and failed to timely and properly recognize K.K.’s fetal distress. As a
consequence of Moving Defendant’s alleged negligence, K.K. allegedly suffered severe
and permanent hypoxic ischemic brain injury. The Complaint alleges that Moving
Defendant provides health-related services to the general public.
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.' 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.2 The
*18 Del. C. § 6853(a)(1).
* 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.
affidavit must also state that reasonable grounds exist to believe that the defendant was
negligent in a way that proximately caused the plaintiff's injury.? The affidavit must be
filed under seal and, upon request, may be reviewed in camera to ensure compliance
with statutory requirements.’ The affidavit's requirements are "purposefully minimal."®
Affidavits that merely track the statutory language are deemed sufficient.®
In this matter, three affidavits of merit are under consideration, all of which are
applicable to Moving Defendant, and as requested by Moving Defendant, the Court has
performed an in camera review. With regard to the first expert, a physician, it appears
that Plaintiffs have failed to attach a current curriculum vitae, as noted in the Court’s
Order regarding the request for review filed by Defendant Scacheri. For the reasons
given in that Order, the Court will provide a limited period for Plaintiffs to submit a
current curriculum vitae, and the Court will defer consideration of the affidavit pending
that submission.
Super. Apr. 22, 2019) (“[B]ecause the defendant is not a physician, the statutory requirement of
similar Board certification is not applicable.”). Here, Plaintiffs allege negligence against
Moving Defendant based on agency principles. Thus, the statutory requirement of “same or
similar” Board certification is not applicable because Moving Defendant is not a physician, and
all three experts in the present case may speak to whether Moving Defendant was negligent. See
McNulty, 2017 WL 1323711, at *2 (finding “same or similar” Board certification requirement
not applicable when moving defendants were not physicians).
* Id.* Id. § 6853(d).
° Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmon v. Fucci, 32 A.3d
338, 342 (Del. 2011)).
§ Dishmon, 32 A.3d at 342-43.
Turning to the second expert, a registered nurse and certified nurse midwife, it
appears that the curriculum vitae provided may also not be current.’ The Court will
also defer consideration of this affidavit for a limited period to provide Plaintiffs an
opportunity either to provide an updated curriculum vitae or to confirm that the one
submitted is current.
Finally, with regard to the third expert, the Court finds as follows:
a.
b.
Cc.
The expert signed the affidavit.
The current curriculum vitae of the expert is attached.*
The expert, who is a registered nurse, has training and experience in that
field.
The affidavit states that reasonable grounds exist to believe that the
Moving Defendant, 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 will defer consideration
of the affidavit of the expert who is a physician, and Plaintiffs shall be provided an
additional twenty-one (21) days from the date of this Order to provide a current
curriculum vitae for that expert. The Court will also defer consideration of the expert
who is a registered nurse and certified nurse midwife, and Plaintiffs shall be provided
an additional twenty-one (21) days from the date of this Order either to provide a
” The most recent date of employment given in the curriculum vitae is 2015.
* It is apparent that the curriculum vitae is current, as it includes employment dates and
publication dates through 2019, the date of the affidavit.
current curriculum vitae for that expert or to confirm that the one already submitted is
current. Finally, the Court finds that the affidavit of the third expert, a registered nurse,
complies with 18 Del. C. § 6853(a)(1) and (c).
IT IS SO ORDERED.
/s/Noel Eason Primos
Judge
NEP/wjs
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oc: Prothonotary
Counsel of Record