“[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 [sic] 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
LATRECE L. LEWIS, JASON C. )
WILLIAMS, as Power of Attorney for
)
MARCIE L. WILLIAMS, )
)
Plaintiffs, ) C.A. No.: K24C-08-031 NEP
)
v. )
)
CHURCHMAN VILLAGE OF )
DELAWARE, INC., d/b/a CHURCHMAN )
VILLAGE REHABILITATION & )
NURSING CENTER, a Delaware )
corporation, and BUENA VISTA )
HEALTHCARE, LLC, a Delaware )
Corporation, )
)
Defendants. )
Submitted: December 31, 2025
Decided: February 25, 2026
ORDER 1 0F
Upon Review of the Affidavits of Merit
COMPLIANT
1. This matter involves a medical negligence suit filed by Latrece L.
Lewis and Jason C. Williams (“Plaintiffs”), as attorneys-in-fact for the late Marcie
L. Williams (“Decedent”), against Churchman Village of Delaware, Inc. and Buena
Vista Healthcare, LLC (“Defendants”). 2 By motion, Defendants have requested that
1F
1
Citations hereafter in the form of “(D.I. __)” refer to docket items.
2
Pursuant to Superior Court Civil Rule 25(a), Plaintiffs have indicated that Decedent died during
the pendency of this lawsuit. See Suggestion of Death (D.I. 14) (indicating, upon information and
belief, that said death occurred on March 17, 2025).
this Court review the affidavits of merit submitted with Plaintiffs’ Amended
Complaint to ensure compliance with 18 Del. C. § 6853(a)(1) and (c). 3 2F
2. On August 30, 2024, Plaintiffs filed their original Complaint, sounding
in medical negligence, together with two affidavits of merit pursuant to 18 Del. C. §
6853, one authored by a physician and one authored by a nurse. 4 3F
3. Upon Defendants’ motion for in camera review, the Court issued an
Order dated April 25, 2025, concluding that the physician’s affidavit of merit
satisfied the statutory requirements of 18 Del. C. § 6853 and, having found one
compliant affidavit sufficient, declining to consider the nurse’s affidavit for the
reasons stated therein. 5 4F
4. Following Decedent’s death, Plaintiffs filed an Amended Complaint
asserting a survival action and adding a wrongful death claim. 6 Plaintiffs filed two
5F
affidavits of merit with the Amended Complaint, again authored by a physician (the
“Physician Affidavit”) and a nurse, which are substantively the same as those
previously reviewed by the court. 7 On December 18, 2025, Defendants filed its
F
motion for in camera review of the affidavits. 8 7F
5. 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. 9 The expert must be
8F
3
Defendants Churchman Village of Delaware, Inc., d/b/a Churchman Village Rehab. & Nursing
Ctr. and Buena Vista Healthcare, LLC’s Mot. for In Camera Review of the Aff. of Merit Filed
with the Amended Complaint (D.I. 22).
4
Compl. (D.I. 1).
5
D.I. 15. In its April 25, 2025 Order, the Court declined to consider the nurse’s affidavit because
18 Del. C. § 6853(a)(1) requires only a single affidavit of merit as to each defendant, and the
physician’s affidavit satisfied all statutory requirements. Id.
6
Am. Compl. at ¶¶ 29–39. (D.I. 19).
7
D.I. 19. The affidavits of merit filed with the Amended Complaint were efiled on October 14,
2025, and received in paper form on December 31, 2025. D.I. 19, 26.
8
D.I. 22.
9
18 Del. C. § 6853(a)(1).
2
licensed to practice medicine as of the affidavit’s date. 10 He or she must also have
9F
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. 11 10F
6. 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. 12 Additionally, the
11F
affidavit must be filed under seal; upon request, it may be reviewed in camera to
ensure compliance with statutory requirements. 13 The requirements for affidavits
12F
are “purposefully minimal” in that the General Assembly “did not intend a minitrial
at this stage of the litigation.” 14 An affidavit need not repeat verbatim the statutory
13F
language; rather, its statements need only represent the functional equivalent of the
statutory language to be judicially acceptable. 15 As the filing of an affidavit of merit
14F
is a duty in derogation of the common law, the Court must narrowly construe the
requirements for such an affidavit. 16 15F
10
Id. § 6853(c).
11
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).
12
18 Del. C. § 6853(c).
13
Id. § 6853(a)(1), (d).
14
Dishmon v. Fucci, 32 A.3d 338, 342–43 (Del. 2011).
15
Id.; see also id. at 344 (“Medical experts need not couch their opinions in legal terms, state the
facts that underly [sic] their determination, or to [sic] articulate the standard of care with a high
degree of legal precision or ‘magic words.’” (citation omitted)).
16
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))).
3
7. As the Court previously held in its April 25, 2025 Order, 18 Del. C. §
6853(a)(1) requires only a single compliant affidavit of merit as to each defendant. 17 16F
Provided that the Physician Affidavit addresses the alleged negligence of Defendants
and satisfies the statutory requirements, the Court need not consider the nurse’s
affidavit of merit for the reasons explained in the Court’s prior Order. 18 17F
8. The Court has performed an in camera review of the Physician
Affidavit filed with the Amended 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 is not attached.
c. In the affidavit, the affiant concludes that there are reasonable
grounds to believe that Defendants violated the applicable standard
of care and that this breach was a proximate cause of the injuries to
Decedent alleged in the Complaint.
d. While the affidavit does not identify the specific date of the
allegedly negligent act or omission giving rise to this suit, the Court
has previously determined that this is not a requirement for a
compliant affidavit of merit. 1918F
e. As of the date he signed it, the author of the Physician Affidavit was
licensed to practice medicine in two states. He was also board
certified in Internal Medicine. Since 1995, he has been involved in
the “teaching/academic side of medicine in the same or similar field
of medicine as the . . . defendants,” as required by the statute. 201 F
17
Lewis v. Churchman Village of Delaware, 2025 WL 1203101, at *3 (Del. Super. Apr. 25,
2025) (D.I. 15).
18
Id.
19
Id.
20
See 18 Del. C. § 6853(c).
4
9. Although the current curriculum vitae is not attached to the Physician
Affidavit, the Court does not find that this omission renders the affidavit defective.
This Court has discretion in choosing an appropriate sanction for noncompliance
with Section 6853 and must balance dismissal with the Court’s strong policy
favoring deciding cases on their merits. The Delaware Supreme Court in Dishmon,
supra, held that “a failure to enclose the curriculum vitae does not, by itself, justify
dismissal.” 21 Moreover, as in Dishmon, there are no facts here to suggest that
20F
Plaintiffs were personally responsible for their attorney’s failure to include the
curriculum vitae with the Physician Affidavit or that Plaintiffs’ attorney acted in bad
faith. 22
2 F This Court previously received the physician’s curriculum vitae in
connection with the original Complaint in late 2024, 23 and nothing in the present
22F
record suggests that the expert’s qualifications have materially changed since that
time. Under these circumstances, the absence of the curriculum vitae from the
Amended Complaint does not undermine the sufficiency of the affidavit.
Nevertheless, to ensure the record remains accurate and complete, the Court will
require Plaintiff’s counsel either to file an updated curriculum vitae or to file a
written representation affirming that no substantial changes occurred in the
physician’s curriculum vitae between the filing of the original affidavit and the filing
of the second affidavit.
WHEREFORE, in consideration of the foregoing, the Court finds that the
Physician Affidavit submitted by Plaintiffs satisfies the statutory requirements of 18
Del. C. § 6853(a) and (c). The Court therefore finds that affidavit of merit, and by
extension Plaintiffs’ Amended Complaint, to be COMPLIANT, subject to the
following condition: Plaintiffs’ counsel shall, within twenty (20) days of the date
21
32 A.3d at 345.
22
See id.
23
See D.I. 1.
5
of this Order, either file an updated curriculum vitae or file a written
representation on the record affirming that no substantial changes have
occurred in the physician-expert’s curriculum vitae between the filing of the
original affidavit of merit and the filing of the second affidavit.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
6