Johnson v. Bayhealth Medical Center

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

)

DAWN JOHNSON, )

)

Plaintiff, ) C.A. No.: K25C-12-020 NEP

)

v. )

)

BAYHEALTH MEDICAL )

CENTER, INC., a Delaware )

corporation, )

)

Defendant. )

Submitted: March 5, 2026

Decided: May 22, 2026

ORDER 1

Upon Review of the Affidavit of Merit

DEFERRED

1. This matter involves a medical negligence suit filed by Dawn Johnson

(“Plaintiff”) against Bayhealth Medical Center, Inc. (“Defendant”). By 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). 2

2. On December 17, 2025, Plaintiff filed her original Complaint, sounding

in medical negligence, together with an affidavit of merit pursuant to 18 Del. C. §

6853. 3 The Complaint alleges that, during a physical therapy session, a physical

1

Citations hereafter in the form of “(D.I. __)” refer to docket items.

2

Defendant Bayhealth Medical Center, Inc.’s Mot. to Test Aff. of Merit Pursuant to 18 Del. C. §

6853 (D.I. 9).

3

Compl. (D.I. 1).

therapist or other agent or employee of Defendant negligently attempted to ambulate

Plaintiff without the required two-person assistance, causing Plaintiff to fall and

fracture her right ankle. 4

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 witness as defined in 18 Del. C. § 6854, and attaching the expert’s current

curriculum vitae.5 The expert must be licensed to practice medicine as of the

affidavit’s date. 6 He or she must also have 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 three 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. 7

4. Pursuant to 18 Del. C. § 6854, an expert witness is defined as “such [a]

person [that] is familiar with the degree of skill ordinarily employed in the field of

medicine on which he or she will testify.”8 “Determining whether an expert is in a

‘similar’ field of medicine as a defendant is a fact-intensive inquiry.” 9 The proffered

expert, however, need not be proficient in a specific medical field to qualify as an

expert under the statute.10 In Baoust v. Kraut, the Delaware Supreme Court

4

Id. at 1–2.

5

18 Del. C. § 6853(a)(1).

6

Id. § 6853(c).

7

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).

8

18 Del. C. § 6854.

9

Pitts v. Bayhealth Med. Ctr., Inc., 2024 WL 4503997, at *1 (Del. Super. Oct. 16, 2024) (citing

McNulty, 2017 WL 1323711, at *2).

10

Id.

2

explained that “the diagnosis and treatment of some medical problems may be of

concern to doctors of different specialties, and in an area of concurrent expertise, a

common standard of care may be shared.”11

5. 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

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

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

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

is a duty in derogation of the common law, the Court must narrowly construe the

requirements for such an affidavit.16

6. The Court first notes that Defendant is an institution, not an individual.

Accordingly, the requirement that the affiant be Board certified in the same or

similar field of medicine does not apply here. 17

7. However, the requirement that the expert be “engaged in the treatment

11

377 A.2d 4, 7 (Del. 1977). See also McNulty, 2017 WL 1323711, at *2 (quoting same);

Saddler v. Nanticoke Mem’l Hosp.¸ 2012 WL 6846550, at *6 (Del. Super. Dec. 24, 2012).

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))).

17

See supra note 7.

3

of patients and/or in the teaching/academic side of medicine in the same or similar

field of medicine as the defendant” remains. Although Defendant is a hospital, the

alleged negligence occurred in connection with physical therapy services that

Defendant provides. Plaintiff’s expert is an orthopaedic surgeon. His curriculum

vitae does not independently establish that he practices in the field of physical

therapy, but the affidavit states that he “work[s] with physical therapists almost daily

for treatment of patients.” In determining whether a given expert’s practice is

sufficiently similar to a defendant’s for purposes of § 6854, the Superior Court has

previously ruled that “if the differences between the defendant’s specialty and the

proffered expert’s specialty do not affect the applicable standard of care, the

proffered expert is competent to testify.” 18 Here, the alleged negligence arises from

physical therapy, a treatment setting that may substantially overlap with orthopaedic

care, rehabilitation, and the treatment of musculoskeletal conditions. Given the

minimal nature of the affidavit of merit inquiry,19 the fact intensive nature of the

“same or similar field” requirement, 20 and the expert’s sworn statement that he

works with physical therapists almost daily in treating patients, the Court is satisfied

that the expert is engaged in a sufficiently similar field of medicine to opine, at this

stage, on the alleged breach of the applicable standard of care.

8. Accordingly, 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 expert is attached to the

affidavit.

18

Derrickson v. Pruden, 2011 WL 2083884, at *2 (Del. Super. May 3, 2011).

19

Supra note 14.

20

Supra note 9.

4

c. The expert was licensed to practice medicine as of the date of the

affidavit.

d. For the reasons discussed above, the expert’s sworn statement that

he “work[s] with physical therapists almost daily for treatment of

patients,” in addition to his expertise as an orthopaedic surgeon,

satisfies the same or similar field requirement contemplated by §

6853(c), notwithstanding the fact that the expert is a surgeon and the

alleged negligence occurred in a physical therapy setting.

e. In the affidavit, the expert concludes that there are reasonable

grounds to believe that Defendant violated the applicable standard

of care. The affidavit, however, does not state that the alleged

breach of the applicable standard of care was a proximate cause of

the injuries to Plaintiff alleged in the Complaint.

9. Given the foregoing review, it appears to the Court that the primary

deficiency in the affidavit is the expert’s failure to state that the alleged breach was

a proximate cause of the injuries to Plaintiff alleged in the Complaint. This

deficiency, however, does not necessarily render the instant affidavit defective. The

affidavit does state that “the Defendant . . . [was] negligent in treatment and care of

Plaintiff . . . during a physical therapy session as claimed in the Complaint.” The

Complaint, in turn, alleges that, “[a]s a direct and proximate result of Defendant’s

negligence, Plaintiff sustained severe and permanent injuries.”21

10. As previously stated, the requirements governing affidavits of merit are

“purposefully minimal” because the General Assembly “did not intend a minitrial at

this stage of the litigation,” 22 and an affidavit need not recite the statutory language

verbatim so long as the affidavit conveys the functional equivalent of that

21

Compl. 4 (D.I. 1).

22

Dishmon, 32 A.3d at 342–43.

5

language. 23

11. Additionally, the standard for permitting amendment to an affidavit of

merit is generous. Courts have allowed amendment of affidavits of merit that failed

to address, or address adequately, the issue of proximate cause where other aspects

of the affidavits were compliant.24 Those circumstances also include cases where

the affidavit failed to address the alleged negligence of a defendant. 25 “The Court’s

discretion in such instances is warranted because, ‘[i]n Delaware, public policy

favors permitting a litigant a right to a day in court.’” 26

12. “As generously as the Court can,” the Court will assume that the failure

of the attesting expert to address proximate causation in relation to Defendant’s

alleged negligence was an oversight and will therefore allow Plaintiff to submit an

23

Id.; see also supra note 15.

24

See e.g., Buck v. Nanticoke Mem'l Hosp., Inc., 2015 WL 2400537, at *1 (Del. Super. May 19,

2015) (allowing the plaintiff to submit a supplemental affidavit of merit where the original

affidavit failed to address the issue of proximate cause as to one of the defendants); Peck v.

Orthopaedic Assoc. of S. Del., P.A., 2021 WL 3197549, at *5–7 (Del. Super. July 28, 2021)

(allowing the plaintiff to submit a supplemental affidavit of merit where the original and

amended affidavits did not clearly address whether all alleged aspects of the defendants’

negligence treatment proximately caused the plaintiff’s injuries); Palacio for Mitchell v. Premier

Healthcare, Inc., 2015 WL 13697654, at *1 (Del. Super. Sept. 15, 2015) (accepting an amended

affidavit after the court rejected the original affidavit of merit for its failure to state whether the

defendant's breach of the standard of care had proximately caused the plaintiff's injuries); Ellet v.

Ramzy, 2004 WL 2240153, at *1 (Del. Super. Sept. 29, 2004) (allowing the amendment of an

affidavit of merit because the affidavit was equivocal as to whether the breach was a proximate

cause of the decedent's injury); Kalinowski v. Adams, 2012 WL 1413999, at *1-*2 (Del. Super.

Mar. 9, 2012) (allowing the plaintiff to amend the affidavit of merit because the original affidavit

was unclear as to whether the defendants’ actions had proximately caused the plaintiff's injuries).

25

See Truitt v. Bay Health Med. Ctr., Inc., 2019 WL 5460190, at *2 (Del. Super. Oct. 24,

2019) (Court assumed that failure to address the negligence of one of the defendants was an

“oversight” and allowed amendment of the affidavit); Buck, 2015 WL 2400537, at *2 (where

proffered affidavit did not address negligence of institutional defendant, Court permitted plaintiff

to supplement record with affidavit addressing negligence of that defendant).

26

Buck, 2015 WL 2400537, at *1 (alteration in original) (citing Beckett v. Beebe Med. Ctr., 897

A.2d 753, 757–58 (Del. 2006)); cf. Old Guard Ins. Co. v. Jimmy's Grille, Inc., 860 A.2d

811 (TABLE), 2004 WL 2154286, at *3 (Del. 2004) (according “liberal construction” to rule

regarding vacation of default judgments “because of the underlying public policy that favors a

trial on the merits”).

6

amended affidavit of merit addressing whether Defendant’s alleged breach of the

standard of care was a proximate cause of the injuries alleged in the complaint.

WHEREFORE, in consideration of the foregoing, the Court’s consideration

of Plaintiff’s Affidavit of Merit is DEFERRED. Plaintiff’s counsel shall, within

twenty (20) days of the date of this Order, file an amended affidavit of merit

addressing whether Defendant’s alleged breach of the applicable standard of

care was a proximate cause of the injuries alleged in the Complaint. If Plaintiff

fails to file a compliant amended affidavit of merit within that time, the

Complaint will be dismissed.

IT IS SO ORDERED.

NEP:tls

Via File & ServeXpress

oc: Prothonotary

cc: Counsel of Record

7