IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CLIFFORD W. TRUITT,
Plaintiff,
V. C.A. No. N19C-06-235 CEB
BAY HEALTH MEDICAL CENTER,
INC., a/k/a BAYHEALTH HOSPITAL,
KENT CAMPUS f/k/a KENT GENERAL
HOSPITAL, ROSHAN D. PRABHU,
M.D., TOLULOPE A. AYANGADE,
M.D., FARIDA A. MALIK, M.D.,
CAROLE A. DYE, R.N. AND
JOHN DOES 1-10
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)
Defendants. )
Submitted: August 9, 2019
Decided: October 24, 2019
ORDER REGARDING AFFIDAVIT OF MERIT
l. This is a medical negligence action filed by Clifford Truitt (“Plaintiff”)
against Bay Health Medical Center, Inc., and some of the doctors and nurses that
treated him while at Bay Health. (“Defendants”).
py Pursuant to 18 Del. C. § 6853(a)(1), a medical negligence complaint
must be accompanied by an Affidavit of Merit. The statute controls this affidavit
and its legal standards. The Affidavit must be accompanied by a current curriculum
vitae from a qualified expert witness as to each defendant.' A “qualified expert”
means an expert as defined by 18 Del. C. §6854.
3. The Affidavit of Merit is filed under seal.?, Any defendant can request
an in camera review of the Affidavit to ensure that it complies with the statutory
requirements.’ That is what brings us to the instant motion.
4. The Court has reviewed in camera Plaintiff's Affidavit of Merit. The
Affidavit is accompanied by a current curriculum vitae. The Affidavit states the
expert is currently licensed to practice medicine and is board certified in Family
Medicine. The affiant swears to the affiant’s familiarity with the standards of care
of the physicians in the “same or similar field” as the individual Defendants.
5. The affiant swears his field of medicine is the same or similar to fields
of practice of individual Defendants Drs. Prabhu, Ayangade, and Malik. The
Affidavit further states, to a reasonable degree of medical probability, that but for
negligence by these Defendants, Plaintiff would not have suffered the conditions that
ultimately resulted in his injuries.
6. The Court notes that the statute requiring the Affidavit of Merit is filed
in camera and without the availability of cross examination, and references the need
118 Del. C. §6853(a)(1).
2 Id.
3 Td. at (d).
for signature by an “expert witness, as defined in §6854 of this title.”4 Section 6854
states that “No person shall be competent to give expert medical testimony as to
applicable standards of skill and care unless such person is familiar with the degree
of skill ordinarily employed in the field of medicine on which he or she will testify.”°
But the competence of the witness to do so or their familiarity with the ordinary
skills of practitioners in a particular field are not subject to the “crucible of cross
examination” and indeed, so far as the Court can determine, an affiant swearing to
such competence and/or familiarity must be taken at face value.° At face value, the
Affidavit here complies with the statute as to the named Defendants.
7. But the Affidavit is silent as to Defendant Carol Dye, R.N., referred to
in the Complaint as “the wound care consultant.” She receives only passing
reference in the rather expansive narrative of the Complaint until the specific counts
allege her negligent failures to diagnose and treat his conditions.’ Because the
Complaint alleges medical negligence on the part of Nurse Dye, the same
requirement of an Affidavit of Merit applies to her and this one is deficient in its
failure to mention her at all.
418 Del. C. §6854.
> Id.
6 See Dishmon v. Fucci, 32 A.3d 338, 342 (Del. 2011) (“Owing to the risk involved,
courts in the initial review should assume that statements made in affidavits of merit
are reliable without additional evidentiary support.”)
TDI. 1 at 35-39.
8. As generously as the Court can, the Court will assume the failure of the
Affidavit to identify Nurse Dye is an oversight.® In keeping with the Court’s policy
of deciding cases on their merits and eschewing procedural defaults,’ the Court will
allow Plaintiff 21 days in which to amend his Affidavit of Merit or supply a new
Affidavit with respect to individual Defendant Carol Dye, R.N.'° Barring an
Affidavit that complies with the statute with respect to Nurse Dye, the Court will
dismiss the action as to her.
IT IS SO ORDERED. Pe
= - SS +
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t
Judge Chafles E. Butler “
8 The Court notes the confusion in the historical record concerning Plaintiff's
handling of the Affidavit of Merit in this case. See D.I. 43. But in fact, an Affidavit
was filed, identifying the doctor Defendants, but not the nurse. Plaintiff also filed a
rather unusual “response” to Defendants’ motion to review the Affidavit of Merit.
D.I 18. Despite all that responding, Plaintiff apparently missed the fact that his
Affidavit failed to identify the nurse Defendant.
” See, e.g., Drejka v. Hitchens Tire Service Inc., 15 A.3d 1221, 1224 (Del. 2010)
(calling dismissal a “severe” sanction to be employed only “as a last resort.”). See
also Dishmon, supra note 1, at 344 (Del. 2011) (recognizing “trial courts must give
weight to Delaware’s well known public policy that favors permitting a litigant to
have his day in court.”)
\0 See generally McBride v. Shipley Manor Health Care, 2005 WL 2090695 (March
23, 2005), aff'd 2005 WL 1201208 (Del. May 18, 2005) (granting plaintiff 21 days
to file affidavit); Dishmon, supra note 1, at 345 ([Section 6853] “does not, however,
contemplate that affidavits that are initially incomplete are automatically subject to
outright dismissal.”). See also Beckett v. Beebe Medical Center, Inc., 897 A.2d 753,
757 (Del. 2006) (holding Superior Court has discretion to permit plaintiff to file
affidavit within a reasonable time after Court ruled against plaintiff's argument that
affidavit was not required).