Riley v. Bayhealth Medical Center

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
VALERIE RILEY, Individually and as :
Personal Representative of the ESTATE:
of MARY ROSS, WALTER RILEY, :
and ANTHONY RILEY, : C.A. No.: K24C-01-024 JJC
:
Plaintiffs, :
:
v. :
:
BAYHEALTH MEDICAL CENTER, :
INC., d/b/a/ KENT GENERAL :
HOSPITAL, CAPITOL NURSING and :
REHABILITATION CENTER, LLC, :
d/b/a CADIA REHABILITATION :
CAPITOL, WOUND HEALING :
SOLUTIONS PENNSYLVANIA AND :
DELAWARE, LLC, LOUIS E. :
COSTA, D.O., Individually and LOUIS :
E. COSTA, D.O., d/b/a as STELLAR :
SURGICAL, :
Defendants. :
Submitted: April 22, 2024
Decided: May 3, 2024
ORDER
This matter involves a healthcare negligence suit filed by Plaintiffs Valerie,
Walter, and Anthony Riley, with Valerie Riley acting both individually and as the
representative of the Estate of Mary Ross. The defendants are Bayhealth Medical
Center, Inc. (“Bayhealth”), Capitol Nursing and Rehabilitation Center, LLC
(“Capitol”), Wound Healing Solutions Pennsylvania and Delaware (“Wound
Healing Solutions”), LLC, and Dr. Louis E. Costa. Plaintiffs allege negligent
medical care arising from the treatment Defendants provided decedent Mary Ross
for a sacral decubitus ulcer while at Bayhealth’s Kent General Hospital and Capitol’s
rehabilitation facility. Specifically, Plaintiffs allege that Defendants are jointly and
severally liable for their negligent treatment of Ms. Ross’s ulcer, which progressed
to an infection, necrosis, septic shock, and ultimately, Ms. Ross’s death. Defendants
Bayhealth, Capitol, and Wound Healing Solutions have separately filed motions
requesting an in camera review of the plaintiffs’ affidavit of merit to determine
whether it complies with 18 Del. C. § 6853(a)(1) and (c) as to Bayhealth, Capitol,
and Wound Healing Solutions.
In Delaware, a plaintiff filing a medical negligence action must include an
affidavit of merit that addresses each defendant. The affidavit must be signed by the
expert and accompanied by the expert’s curriculum vitae.1 Generally, an affidavit
that tracks the statutory language complies with the statute.2
The expert signing the affidavit must be licensed to practice medicine as of
the affidavit date and be engaged in the practice of medicine in the same or similar
field of medicine as the defendant for the three years immediately preceding the
alleged negligence.3 The affidavit must also state that reasonable grounds exist to
believe that each defendant’s negligence caused the plaintiff’s injury.4 Even though
the plaintiff must file the affidavit under seal, a defendant may request the Court to
review it in camera to ensure it complies with the statutory requirements.5
As requested, after an in camera review of the affidavit of merit and the expert
witness’s curriculum vitae, the Court finds:
1
18 Del. C. § 6853(a)(1).
2
Dishmon v. Fucci, 32 A.2d 338, 342-43 (Del. 2011).
3
Flamer v. Nanticoke Memorial Hospital, 2020 WL 113911, at *1 (Del. Super. Jan. 9, 2020)
(citing 18 Del. C. § 6853(c)).
4
Id.
5
Id. at *1 (citing § 6853 (d)).
1. The expert signed the affidavit;
2. The expert attached a curriculum vitae;
3. The expert is currently licensed to practice medicine;
4. The expert is board certified in general surgery and surgical critical care;
5. The expert treated patients in the same or similar field of medicine as the
Defendants for over three years, including the three years immediately
preceding the alleged negligent conduct. Namely, the affidavit and
curriculum vitae specifically reference the expert’s experience in general
surgery and surgical critical care; and
6. The expert recites and explicitly lists the reasonable grounds to believe that
the Defendants breached the applicable standard of care as it related to Ms.
Ross’s treatment at Kent General Hospital and Capitol’s rehabilitation
facility in manners that directly and proximately caused her injury.
Therefore, the affidavit of merit contains the material required by 18 Del. C.
§ 6853(a)(1) and (c) regarding the allegations against Bayhealth, Capitol, and
Wound Healing Solutions. As a result, the Court finds that the affidavit of merit is
COMPLIANT as to Bayhealth, Capitol, and Wound Healing Solutions.
IT IS SO ORDERED.
/s/ Jeffrey J Clark
Resident Judge