“[S]trict, rather than liberal, construction of legislation in derogation of the common law is the rule.” (citing Carper v. Bd. of Educ., 432 A.2d 1202 (Del. 1981); State v. Brown, 195 A.2d 379 (Del. 1963))
How later courts described this case
- “[S]trict, rather than liberal, construction of legislation in derogation of the common law is the rule.” (citing Carper v. Bd. of Educ., 432 A.2d 1202 (Del. 1981); State v. Brown, 195 A.2d 379 (Del. 1963))
- “Medical experts need not couch their opinions in legal terms, state the facts that underly their determination, or to [sic] articulate the standard of care with a high degree of legal precision or ‘magic words.’” (citation omitted)
Written by the judges who cited it.
The opinion
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JEREMY WELLS, )
)
Plaintiff, ) C.A. No.: K25C-08-027 NEP
)
v. )
)
BAYHEALTH MEDICAL )
CENTER, INC., )
)
Defendant. )
Submitted: September 29, 2025
Decided: November 24, 2025
ORDER 1 0F
Upon Review of the Affidavit of Merit
COMPLIANT
1. This matter involves a medical negligence suit filed by Plaintiff Jeremy
Wells (“Plaintiff”) against Bayhealth Medical Center, Inc. (“Defendant”). 2 By 1F
motion, Defendant has requested that this Court review the affidavit of merit
submitted with Plaintiff’s complaint to ensure compliance with 18 Del. C. §
6853(a)(1) and (c). 3 2F
2. On August 27, 2025, Plaintiff filed a Complaint (the “Complaint”)
alleging that Defendant, directly and through its agents and technicians, deviated
from the applicable standard of care during a “VQ” scan performed on September
1
Citations hereafter in the form of “(D.I. __)” refer to docket items.
2
Bayhealth Radiologists, LLC, and Kent Diagnostic Radiology Associates, P.A., were also
defendants in the original action but are no longer parties to the action. The parties have stipulated
to their dismissal without prejudice, and the Court has entered orders so providing (D.I. 17–18).
3
Mot. to Test Aff. of Merit (hereinafter “Defendants’ Motion”) (D.I. 10).
19, 2023. 4 Plaintiff avers that his left arm was improperly positioned during the
3F
procedure, causing it to become caught in the scanning apparatus, resulting in
injury. 5 Plaintiff alleges that Defendant’s staff failed to ensure that Plaintiff was
4F
properly positioned and that appropriate supervision was provided during the scan. 6 5F
3. In Delaware, each medical negligence complaint must be accompanied
by an affidavit of merit opining as to the negligence of each defendant, signed by an
expert, and attaching the expert’s current curriculum vitae. 7 The expert must be
6F
licensed to practice medicine as of the affidavit’s date. 8 He or she must also have
7F
been “engaged in the treatment of patients and/or in the teaching/academic side of
medicine in the same or similar field of medicine as the defendant” in the 3 years
immediately preceding the alleged negligent act, and must be Board certified in the
same or similar field of medicine if the defendant is Board certified. 9 8F
4. The affidavit must indicate that reasonable grounds exist to believe that
the applicable standard of care was breached by each defendant and that the breach
was a proximate cause of the injuries alleged in the complaint. 10 Additionally, the
9F
affidavit must be filed under seal; upon request, it may be reviewed in camera to
ensure compliance with statutory requirements. 11 The requirements for affidavits
10F
are “purposefully minimal” in that the General Assembly “did not intend a minitrial
4
Compl. ¶¶ 13, 18, 33 (D.I. 1).
5
Id. at ¶¶ 23–30.
6
Id. at ¶¶ 38, 40, 44.
7
18 Del. C. § 6853(a)(1).
8
Id. § 6853(c).
9
Id. The requirements regarding Board certification apply only if the defendant is a physician.
Zappaterrini v. St. Francis Hosp., Inc., 2009 WL 1101618, at *1 (Del. Super. Apr. 22, 2009)
(“[B]ecause the defendant is not a physician, the statutory requirement of similar Board
certification is not applicable.”); McNulty v. Correct Care Sols., LLC, 2017 WL 1323711, at *2
(Del. Super. Apr. 7, 2017) (noting that “same or similar” Board certification does not apply where
defendant is not a physician).
10
18 Del. C. § 6853(c).
11
Id. § 6853(a)(1), (d).
2
at this stage of the litigation.” 12 An affidavit need not repeat verbatim the statutory
11F
language; rather, its statements need only represent the functional equivalent of the
statutory language to be judicially acceptable. 13 As the filing of an affidavit of merit
12F
is a duty in derogation of the common law, the Court must narrowly construe the
requirements for such an affidavit. 14 13F
5. Plaintiff’s Complaint was accompanied by one affidavit of merit, which
was received by the Prothonotary’s office on August 28, 2025. 15 The affidavit was
14F
authored by a medical doctor licensed to practice in Delaware and Board certified in
radiology.
6. As requested by Defendant, the Court has performed an in camera
review of the affidavit of merit filed with the Complaint. As to the affidavit in
question, the Court finds as follows:
a. The affidavit is signed by its author.
b. The current curriculum vitae of the affiant is attached to his
affidavit.
c. In the affidavit, the affiant concludes that there are reasonable
grounds to believe that Defendant violated the applicable standard
of care and that this breach was a proximate cause of the injuries to
the Plaintiff alleged in the Complaint.
d. The affidavit identifies the specific date of the allegedly negligent
act giving rise to this suit.
12
Dishmon v. Fucci, 32 A.3d 338, 342–43 (Del. 2011).
13
Id.; see also id. at 344 (“Medical experts need not couch their opinions in legal terms, state the
facts that underly their determination, or to [sic] articulate the standard of care with a high degree
of legal precision or ‘magic words.’” (citation omitted)).
14
Hodge v. Bayhealth Med. Ctr., Inc., 2025 WL 1068228, at *3 (Del. Super. Apr. 9, 2025)
(citations omitted); accord Gibson v. Keith, 492 A.2d 241, 247 (Del. 1985) (“[S]trict, rather than
liberal, construction of legislation in derogation of the common law is the rule.” (citing Carper v.
Bd. of Educ., 432 A.2d 1202 (Del. 1981); State v. Brown, 195 A.2d 379 (Del. 1963))).
15
D.I. 3.
3
e. As of the date he signed it, the author of the affidavit was licensed
to practice medicine in Delaware. 16 In the three years immediately
15F
preceding the alleged negligent act, he has been involved in the
“treatment of patients and/or in the teaching/academic side of
medicine in the same or similar field of medicine as the defendant,”
as contemplated under the statute. 17 Specifically, for the three years
16F
prior to the events giving rise to this case, he worked as a medical
director of a radiology practice, responsible for supervising all
healthcare and administrative personnel in the program.
7. Upon a review of the Physician Affidavit, the Court concludes that the
affidavit satisfies the statutory requirements. In its motion seeking in camera
review, Defendant asks that the Court ensure the affiant’s qualifications include
expertise in the fields of nursing, nuclear medicine technology, and radiology. 18 The 17F
Court finds no basis for that interpretation. Under 18 Del. C. 6853(c), an expert must
have practiced or taught within the “same or similar field of medicine” as the
defendant, not in each discrete area of subordinate or ancillary practice implicated
by the alleged negligence. 19 Here, the negligence alleged concerns improper patient
18F
positioning and monitoring during a radiologic procedure known as a VQ scan—
matters squarely within the field of radiology. However, even if some distinction
could be drawn between “nuclear medicine technology” and “radiology,” with VQ
scan procedures classified under the former, the “same or similar field” language
renders Defendant’s objections inapposite. Because the affiant is a Board certified
16
Although not required by the statute, the affiant was also Board certified in radiology medicine.
17
See 18 Del. C. § 6853(c).
18
Defendant’s Motion 3–4 (D.I. 10).
19
See McNulty, 2017 WL 1323711, at *2 (explaining that an expert need not be proficient in each
discrete specialty implicated, so long as he or she is familiar with the standard of care applicable
to the defendant’s practice).
4
radiologist actively engaged in the practice and supervision of diagnostic imaging,
his qualifications in that discipline are sufficient to satisfy the “same or similar field”
requirement.
8. Similarly, Defendant asks that the Court ensure “[the affiant] is Board
certified in the same fields of medicine as those whom Plaintiff’s claims against
Bayhealth is [sic] brought, including nursing, nuclear medicine technology, and
radiology.” 20 This request misconstrues the statute. As previously stated, the Board
19F
certification requirement applies only when the defendant is a physician. 21 Because
20F
the defendant here is not a physician, the statutory Board Certification provision is
inapplicable. Moreover, even if Board certification were required, 18 Del. C.
6853(c) provides that, where the defendant is Board certified, the expert must
likewise be “Board certified in the same or similar field of medicine.” 22 The 21F
omission of the phrase “or similar” from Defendant’s formulation impermissibly
narrows the statute’s scope. Because 18 Del. C. 6853 is in derogation of the common
law, the Court will not impose qualifications more demanding than those expressly
set forth by the General Assembly.
WHEREFORE, in consideration of the foregoing, the Court finds that the
affidavit of merit submitted by Plaintiff satisfies the statutory requirements of 18
Del. C. § 6853(a) and (c). The Court therefore finds that affidavit of merit, and by
extension Plaintiff’s Complaint, to be COMPLIANT.
20
Id. at 4.
21
See supra note 10.
22
See 18 Del. C. § 6853(c) (emphasis added).
5
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
6