Sellers

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
ANN F. SELLERS, as Guardian for )
JEAN W. FITZGERALD, )
)
Plaintiff, )
)
v. ) C.A. No. N15C-05-147 JAP
)
1100 NORMAN ESKRIDGE )
HIGHWAY LLC D/B/A SEAFORD )
CENTER, a Delaware corporation, )
)
Defendant. )
ORDER
1. The plaintiff-ward is an elderly woman who resided at the
defendant nursing home. Her guardian has filed this suit alleging that
the ward was injured when she spilled a bowl of hot soup on her leg.
According to the complaint the ward should not have been allowed to eat
without supervision and that she was not being supervised when she
spilled the soup.
2. The defendant has filed a motion requesting this court to
review the sealed affidavit of merit and determine whether it satisfies 18
Del. C. §6853. The court has reviewed the affidavit, and this is its ruling.
3. The court has considerable doubt whether an affidavit of
merit is even required here. Section 6853 requires an affidavit of merit in
a “healthcare negligence lawsuit.” Defendant argues that it is a “health
care provider,” and the court will assume this to be the case. It does not
necessarily follow that an affidavit of merit is required here. There are a
wide variety of torts which can be committed by a “health care provider”
which do not require a plaintiff to file an affidavit of merit. Take, for
example, the case of a visitor who slips on a wet spot in a hospital lobby
that the staff negligently failed to clean up. The defendant’s status as a
“healthcare provider” does not, by itself, invoke section 6853. Rather the
complaint must also allege “healthcare negligence.” The statute does not
define that term, but one could reasonably infer it involves the rendering
(or failure to render) of some sort of professional services by the
healthcare provider. The Medical Negligence Act defines “healthcare” as
any act or treatment performed or furnished, or
which should have been performed or furnished,
by any health care provider for, to or on behalf of
a patient during the patient's medical care,
treatment or confinement. 1
The term “medical negligence” is defined to mean “any tort . . . based on
health care or professional services rendered, or which should have been
rendered, by a health care provider to a patient.” 2 To the extent that this
case charges that defendant’s agents failed to adequately supervise the
ward while she was eating, the court has serious doubts whether the
claims come within the Medical negligence Act and whether an affidavit
of merit is even required.
1 18 Del. C. §6801(4).
2
Id. at (7).
2
4. The court need not now resolve the question whether the
Medical Negligence Act applies here. Assuming, but not deciding, that it
applies, the court finds the affidavit of merit complies with section 6853.
5. Defendant asks the court to determine if the affidavit of
merit “states all its opinions with reasonable probability.” Although the
“reasonable probability” standard governs the admission of expert
opinion evidence at trial, it is not applicable here. Section 6853 requires
only that the affiant state that there are “reasonable grounds to believe”
that healthcare negligence has occurred and this negligence was a
proximate cause of the plaintiff’s injuries. It provides in pertinent part:
“No healthcare negligence lawsuit shall be filed in this State unless the
complaint is accompanied by . . . [a]n affidavit of merit . . . stating that
there are reasonable grounds to believe that there has been healthcare
medical negligence.” 3 Elsewhere the same statute requires that “[t]he
affidavit . . . of merit shall set forth the expert's opinion that there are
reasonable grounds to believe that 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.” 4 When
that standard is applied, the Affidavit of Merit filed in this matter
satisfies section 6853.
3
18 Del. C. §6853 (a)(1)(emphasis added).
4
Id. at subsection (c)(emphasis added).
3
Wherefore, the court finds that the Affidavit of Merit filed in this
matter satisfies the requirements of 18 Del. C. §6853.
August 4, 2015 John A. Parkins, Jr.
Superior Court Judge
oc: Prothonotary
cc: Gary S. Nitsche, Esquire – Weik, Nitsche, Dougherty &
Galbraith, Wilmington, Delaware
Maria R. Granaudo Gesty, Esquire – Burns White LLC,
Wilmington, Delaware
4