Smith v. Bayhealth Medical Center Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RODNEY SMITH, Individually and as
:
Administrator of The ESTATE OF
:
WILHELMINA SMITH and :
LAUREN HUNTER, MICHAEL : C.A. No: K21C-06-010 JJC
BROWN, AND AUTUMN J. SMITH :
:
Plaintiffs, :
:
:
v. :
:
BAYHEALTH MEDICAL CENTER :
INC., d/b/a KENT GENERAL :
HOSPITAL, and SHARIF GOBRAN, :
M.D., :
:
Defendants. :
Submitted: July 15, 2021
Decided: July 23, 2021
ORDER
Upon Review of the Affidavit of Merit -
COMPLIANT
This matter involves a healthcare negligence suit filed as a survivorship and
wrongful death action by the Plaintiffs against Defendants Bayhealth Medical
Center, Inc. (“Bayhealth”), and Sharif Gobran, M.D. In their complaint, the
plaintiffs allege that a lack of informed consent and negligent medical care
proximately caused Wilhelmina Smith’s disability and death. Likewise, those
breaches allegedly caused harm to her wrongful death beneficiaries.
Presently, Bayhealth and Dr. Gobran file a motion requesting an in camera
review of the plaintiffs’ affidavit of merit for compliance with 18 Del. C. §
6853(a)(1) and (c). In support of their request, they emphasize the statute’s
requirements for a sufficient affidavit of merit.
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
curriculum vitae.1 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. 2 The
affidavit must also state that reasonable grounds exist to believe that each defendant
was negligent in a way that proximately caused the plaintiffs’ injuries.3 The affidavit
of merit must be filed under seal, but a defendant may request the Court to perform
an in camera review of the affidavit to ensure that it complies with the statute=s
requirements.4
Regarding the Court’s scope of review, the Delaware Supreme Court has
observed that Athe General Assembly intended the affidavit of merit merely to
operate >as a prophylactic measure= to >reduce the filing of meritless medical
negligence claims.=@5 As a result, the requirements for the affidavit of merit are
Apurposefully minimal.@6 An affidavit of merit that tracks the statutory language
complies with the statute.7
Here, after an in camera review of the affidavit of merit and the expert’s
1
18 Del. C. § 6853(a)(1).
2
Id. at § 6853(c).
3
Id.
4
18 Del. C. § 6853(d).
5
Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014) (quoting Dishmon v. Fucci, 32 A.3d
338, 342 (Del. 2011)).
6
Id.7
See Dishmon, 32 A.3d at 342.
2
curriculum vitae, the Court finds, as to both Defendants Bayhealth and Dr. Gobran,
the following:
1. The expert signed the affidavit;
2. The expert attached his current curriculum vitae;
3. The expert is currently licensed to practice medicine in other states.
4. According to the expert’s affidavit, he has treated patients in the same
or similar field as both defendants over the three years immediately
preceding the allegedly negligent conduct. Namely, his affidavit and
curriculum vitae reference his experience and board certification in
anesthesiology and echocardiography; and
5. His affidavit recites that reasonable grounds exist to believe that
Bayhealth and Dr. Gobran breached the applicable standard of care
when treating Ms. Smith, and that breaches by each defendant
proximately caused the injuries that plaintiffs allege in their complaint.
Accordingly, the Estate’s affidavit of merit complies with 18 Del. C. §
6853(a)(1) and (c), as to both defendants.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Resident Judge
JJC:klc
Via File & Serve Express
3