Smith v. Bayhealth Medical Center, Inc

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILLIAM R. SMITH, JR., JOSEPH L. )
SMITH, Individually, and as Personal )
Representative of the ESTATE OF )
JENNIFER J. SMITH, DYLAN R. SMITH, )
TYLER W. SMITH, ALEXA A. SMITH, ) C.A. No. S23C-06-003 RHR
and BROOKLYN SMITH, )
)
Plaintiffs, )
)
v. )
)
BAYHEALTH MEDICAL CENTER, INC., )
Defendant/Third-Party )
Plaintiff, )
)
v. )
)
KENT DIAGNOSTIC RADIOLOGY )
ASSOCIATES, P.A., APOGEE MEDICAL )
GROUP, DELAWARE, INC., REAL )
RADIOLOGY, LLC, and M. LISA )
ATTEBERY, D.O., )
)
Third-Party Defendants. )
Submitted: August 29, 2024
Decided: November 22, 2024
ORDER
Defendants, Apogee Medical Group, Delaware, Inc., M. Lisa Attebery, D.O.,
and Real Radiology, LLC, move this court to review in camera the affidavits of
merit filed in this case to determine whether they comply with the requirements of
18 Del. C. § 6853(a)(1) and (c).
1. Plaintiffs filed their complaint against Bayhealth Medical Center, Inc.
(“Bayhealth”) on June 1, 2023, accompanied by three affidavits of merit as required
by 18 Del. C. § 6853. Bayhealth moved this court to conduct an in camera review
of those affidavits. By Order dated September 25, 2023, this court found that the
affidavits complied with 18 Del. C. § 6853(a)(1) and (c).
2. In November 2023, Bayhealth moved for leave to file a third-party
complaint. At a hearing on January 2, 2024, this court granted the motion. Bayhealth
then filed third-party complaints against Kent Diagnostic Radiology Associates,
P.A. (“Kent Diagnostic”), Apogee Medical Group, Delaware, Inc. (“Apogee”), Real
Radiology, LLC (“Real Radiology”), and M. Lisa Attebery, D.O. (“Attebery”)
seeking contribution, indemnification, and declaratory judgment.
3. Apogee, Real Radiology, and Attebery moved for in camera review of
the affidavits of merit. This court conducted a hearing on those requests on August
29, 2024 to determine whether further affidavits of merit—beyond the three
affidavits filed by Bayhealth with its complaint—were needed, and, if so, which
party would be responsible for producing them.
4. The third-party defendants argued that 18 Del. C. § 6853(a)(1) requires
affidavits of merit “as to each defendant.” They did not take a position on which
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party would be responsible for obtaining the affidavits: the plaintiff—who did not
sue the third-party defendants and opposed the addition of those third-party
defendants to this case—or Bayhealth—which would be in the untenable position of
obtaining affidavits of merit against its own agents. Bayhealth argued that no
additional affidavits of merit were necessary because Bayhealth did not advance any
new negligence claims and was only seeking contribution from the third-party
defendants in the event it is found responsible.
5. After consideration of the arguments of counsel and further review of
the affidavits of merit filed by Bayhealth, this court finds that Bayhealth’s affidavits
that were previously reviewed in camera by the court meet the requirements of 18
Del. C. § 6853 as to each of the third-party defendants. As previously found in this
court’s September 25, 2023 Order, the three affidavits (1) meet the statute’s technical
requirements, (2) the experts who signed the affidavits have the necessary
qualifications, and (3) those experts concluded that there are reasonable grounds to
believe the applicable standards of care were breached by Bayhealth and its
physicians, and that the breach was a proximate cause of the injuries claimed in the
complaint.
6. The court must then consider whether the scope of the affidavits covers
the alleged acts of the third-party defendants. One of the affidavits of merit was
written by a doctor board certified in general surgery who stated that the applicable
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standards of care were breached by Bayhealth’s surgeons and that those breaches
were a proximate cause of the injuries and, ultimately, the death of Bayhealth’s
patient. A doctor board certified in diagnostic radiology and interventional radiology
concluded in his affidavit that the applicable standards of care were breached by
Bayhealth’s “physicians, including internal medicine/hospitalist physicians, and
radiologists.” Finally, the third affidavit of merit is signed by a doctor board certified
in internal medicine who opined that applicable standards of care were breached by
Bayhealth’s internal medicine and hospitalist physicians, and gastroenterologists.
Attebery is a surgeon. Real Radiology and Kent Diagnostic provided services of
their radiologists. Apogee contracted with Bayhealth to provide internists. The
affidavits, therefore, cover the alleged acts of each of the third-party defendants who
were agents of Bayhealth.
For these reasons, this court finds that the affidavits of merit filed by plaintiffs
comply with 18 Del. C. § 6853(a)(1) and (c) and 18 Del. C. § 6854 and that no further
affidavits are needed for the third-party defendants.
IT IS SO ORDERED.
/s/Robert H. Robinson, Jr.
Robert H. Robinson, Jr., Judge
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