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

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
Q. SCACHERI, M.D., BEVERLY A.
SANTANA, MSN, CNM and
DEDICATED TO WOMEN OB-GYN,
P.A.,
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
V. )
)
)
BAYHEALTH MEDICAL CENTER, ) JURY TRIAL OF TWELVE
INC., a Delaware Corporation, ROBERT __ ) DEMANDED
)
)
)
)
)
)
Defendants.
Submitted: January 29, 2020
Decided: March 3, 2020
ORDER
Upon Review of the Affidavits of Merit
DEFERRED
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
Defendant Robert Scacheri, M.D. (hereinafter "Moving Defendant"), as well as
Defendants Beverly Santana, MSN, CNM, Bayhealth Medical Center, Inc., and
Dedicated to Women OB-GYN, P.A., (all Defendants hereinafter collectively
"Defendants"). 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 specializes in obstetrics and gynecology and is licensed to
practice medicine in the state of Delaware.
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
1
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
+18 Del. C. § 6853(a)(1).
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.” The 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. Only one of
these affidavits is applicable to Moving Defendant.’ As requested by Moving
Defendant, upon the Court’s in camera review, the Court finds that the curriculum
vitae attached to the applicable affidavit appears to be out of date.®
* Id. § 6853(c).
* 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.
” The other two affidavits are inapplicable to Moving Defendant because they are from experts in
the fields of Midwifery and Nursing who are not themselves physicians (and therefore cannot be
Board certified or licensed to practice medicine in the same or similiar field as Moving
Defendant). Therefore, these experts may not offer standard of care opinions regarding Moving
Defendant. See Friedel v. Osunkoya, 994 A.2d 746, 751, 764 (Del. Super. 2010) (holding that
pharmacologist could not offer standard of care opinion regarding physician because
construction of 18 Del. C. §§ 6853-54 requires experts be within similar field of medicine and
receive same training).
* The curriculum vitae indicates that the expert’s board certifications in obstetrics and
gynecology and maternal-fetal medicine are expected to expire on December 31, 2010, although
the affidavit itself states that the expert is currently board-certified in obstetrics and gynecology
and maternal-fetal medicine. Moreover, the curriculum vitae lists no specific dates of
The Court acknowledges that Section 6853 requires a plaintiff to supplement
his or her expert affidavit(s) of merit with a current curriculum vitae, and that failure
to do so equates to non-compliance with the statute.’ Nevertheless, this Court has
discretion in choosing an appropriate sanction for noncompliance and must balance
dismissal with the Court’s strong policy favoring the deciding of cases on the
merits.'° In another context, the Delaware Supreme Court has observed that “[t]he
sanction of dismissal is severe and courts are and have been reluctant to apply it
except as a last resort.”
The Delaware Supreme Court in Dishmon, supra, held that a failure to enclose
a curriculum vitae with the affidavit of merit did not justify dismissal and was a mere
procedural deficiency.'* Moreover, as in Dishmon, there are no facts here to suggest
that Plaintiffs were personally responsible for their attorney’s failure to include a
current curriculum vitae or that Plaintiffs’ attorney acted in bad faith.
WHEREFORE, in consideration of the above, Plaintiffs shall be provided
an additional twenty-one (21) days from the date of this Order to provide an
employment or publication later than 2009.
° Estate of Requa v. Bayhealth Medical Center, Inc., 2019 WL 2366871, at *1 (Del. Super. June
4, 2019).
10 Td.
Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008) (sanction of dismissal disfavored
for discovery violations except as last resort).
* Dishmon, 32 A.3d at 344-45. The Supreme Court also noted than an affidavit of merit is not
discoverable and thus the defense would not be prejudiced by a late submission. Jd. at 345.
13 Td.
affidavit of merit that complies with 18 Del. C. § 6853(c) to avoid dismissal of the
complaint.
IT ISSO ORDERED.
/s/Noel Eason Primos
Judge
NEP/wjs
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oc: Prothonotary
Counsel of Record