Hodge v. Bayhealth Medical Center, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JIMMIE L. HODGE, SR., )
)
Plaintiff, ) C.A. No.: K25C-01-011 NEP
)
v. )
)
BAYHEALTH MEDICAL CENTER, )
INC., )
)
Defendant. )

Submitted: February 6, 2025
Decided: April 9, 2025

ORDER 1

Upon Review of the Affidavit of Merit
DEFERRED

1. This matter involves a medical negligence suit filed by Plaintiff Jimmie
L. Hodge, Sr., against Bayhealth Medical Center, Inc. (“Bayhealth”). Bayhealth has
submitted a motion asking the Court to review the affidavit of merit filed in this case
to determine whether it satisfies 18 Del. C. § 6853(a)(1) and (c).2
2. On January 10, 2025, Plaintiff filed a Complaint3 bringing claims
against Bayhealth for alleged negligence “by and through its actual and apparent
agents.”4
3. In Delaware, a medical negligence lawsuit must be filed along with an

1
Citations hereafter in the form of “(D.I. __)” refer to docket items.
2
Def. Bayhealth Med. Ctr., Inc’s Mot. to Test Aff. of Merit Pursuant to 18 Del. C. § 6853 (D.I.
17).
3
Compl. (D.I. 1).
4
Id. at ¶¶ 3, 14–15.
affidavit of merit opining as to the negligence of each defendant, signed by an expert,
and accompanied by 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 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.7
4. The affidavit must indicate that reasonable grounds exist to believe that
the applicable standard of care was breached by the defendant and that the breach
was a proximate cause of injury alleged in the complaint. 8 Additionally, the affidavit
must be filed under seal; upon request, it may be reviewed in camera to ensure
compliance with statutory requirements. 9 The affidavit’s requirements are
“purposefully minimal” in that the General Assembly “did not intend a minitrial at
this stage of the litigation.” 10 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. 11
5. Plaintiff’s Complaint was accompanied by an affidavit of merit, which

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. § 6853(c).
9
Id. § 6853(a)(1), (d).
10
Dishmon v. Fucci, 32 A.3d 338, 342–43 (Del. 2011).
11
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)).
2
was received and filed in the Prothonotary’s office on January 10, 2025.12
6. As requested by Bayhealth, the Court has performed an in camera
review regarding the affidavit of merit that was filed with the Complaint. As to the
expert in question, the Court finds as follows:
a. The expert signed the affidavit.
b. The current curriculum vitae of the expert is attached.
c. The expert is a current nurse practitioner with professed “extensive
knowledge and experience related to the proper monitoring,
safeguarding and treatment of patients who are currently in ICU [or]
. . . who have been recently released from ICU and remain in a
hospital room.” The expert’s curriculum vitae reflects that he
currently practices walk-in and primary care medicine and serves as
a clinical instructor for Family Nurse Practitioner students,
including supervising medical assistants in the clinical setting. He
held both roles for more than three years prior to the alleged
negligence giving rise to this case. During this time, he practiced
and taught in the “same or similar field of medicine” (i.e., clinical
nursing) as the one in which Bayhealth was treating Plaintiff at the
time of his injuries. 13
d. In the expert’s opinion, to a reasonable degree of medical
probability, Defendant breached the applicable standards of care,
and those breaches were proximate causes of Plaintiff’s injuries.

12
D.I. 2.
13
See Clendaniel v. Bayhealth Med. Ctr., Inc., 2020 WL 7787063, at *3 (Del. Super. Dec. 29,
2020) (suggesting, in the context of an affidavit of merit, that the appropriate test is whether, given
the totality of the circumstances, the expert is “capable of knowing and understanding the standard
of care required” for the health care at issue) (citing Vareha v. Bayhealth Med. Ctr., Inc., 2011 WL
2361270, at *6 (Del. Super. May 26, 2011)).
3
e. Although the expert’s affidavit states that he has “been in practice
for a period in excess of three (3) years preceding the incident
alleged” and lists membership in various professional organizations,
neither the affidavit nor the attached curriculum vitae states that the
expert was, at the time of the affidavit, licensed to practice medicine.
7. As the Delaware Supreme Court recently made clear in Nichols v.
Christiana Care Health System,14 the statutory requirement that a plaintiff’s expert
be licensed to practice medicine applies to all experts, both in suits against medical
practitioners and in suits against institutions employing them. The Nichols Court
found the plaintiff’s affidavit deficient because it failed to indicate that the author—
a certified nursing assistant—was licensed to practice medicine, even though the
sole defendant in that case, Christiana Care Health System, was itself an institutional
defendant.15 The Nichols Court explained:
Even assuming that the affidavit satisfied the other statutory
requirements, we conclude that the . . . affidavit did not comply with
the requirement that the “expert signing an affidavit of merit shall be
licensed to practice medicine as of the date of the affidavit.” The
affidavit stated that [the affiant] was a “certified Nursing Assistant”; it
did not indicate that she was “licensed,” nor did the various attachments
to the affidavit include a medical or nursing license issued to [her]. 16
Although the Nichols Court expressly declined to determine whether an individual
with a nurse’s license would qualify as a person “licensed to practice medicine,” as
required by 18 Del. C. § 6853(c), the Court also left open that possibility.17

8. The failure of Plaintiff’s affidavit of merit to indicate whether
Plaintiff’s expert was licensed to practice medicine as of the date of the affidavit

14
266 A.3d 976, 2021 WL 5349943 (Del. Nov. 16, 2021) (ORDER).
15
Id. at *2.
16
Id.
17
Id. at *2 n.13.
4
would be irrelevant were this not a medical negligence action, for which such an
affidavit is a prerequisite. Not all negligence actions against hospitals sound in
medical negligence. Under the relevant statute, “‘[m]edical negligence’ means any
tort or breach of contract based on health care or professional services rendered, or
which should have been rendered, by a health-care provider to a patient.” 18 In turn,
“health care” is defined as “any act or treatment performed or furnished, or which
should have been performed or furnished, by any health care provider for, to or on
behalf of a patient during the patient’s medical care, treatment, or confinement.”19
As this Court noted in Saddler v. Nanticoke Memorial Hospital, the requirement that
a plaintiff produce an affidavit of merit is a duty in abrogation of the common law,
and must therefore be strictly construed. 20 The Saddler Court therefore
distinguished medical negligence suits from suits grounded on “negligent hospital
administration,” e.g. negligent hiring and oversight of staff, with the latter category
not being subject to the affidavit of merit requirement.21
9. The core of Plaintiff’s claim sounds in medical negligence. In Sanders
v. Centurion, L.L.C., the Supreme Court, though acknowledging Saddler, held that
respondeat superior actions against hospitals for the medical negligence of their
employees likewise sound in medical negligence. 22 Harmonizing Sanders with

18
18 Del. C. § 6801(6).
19
18 Del C. § 6801(3).
20
2012 WL 6846550, at *4 (Del. Super. Dec. 24, 2012) (citation omitted); accord Northan v.
Thomas, 2024 WL 2974271, at *4 (Del. Super. June 12, 2024) (“[U]nder Delaware law, statutes
in derogation of common law must be strictly construed.”), aff’d in relevant part, No. 271, 2025
WL 671863 (Del. Mar. 3, 2025) (TABLE) (slip op.).
21
Saddler, 2012 WL 6846550, at *5. Accord Palacio for Mitchell v. Premier Healthcare, Inc.,
2015 WL 13697664, at *1 (Del. Super. Aug. 11, 2015) (“An affidavit of merit is not required for
negligent supervision, hiring, or other administrative claims against a healthcare provider . . . .
Here, the allegations boil down to three claims: (1) negligent medical care of a dementia patient
resulting in burns, (2) negligent medical treatment of those burns, and (3) negligent hiring, training,
and supervising employees. An affidavit of merit is required for the [first] two, [which are] medical
negligence claims.”) (citing Saddler).
22
319 A.3d 307, 2024 WL 2105545, at *2 (Del. May 9, 2024) (ORDER).
5
Saddler, this Court concludes that direct claims against hospitals for their own acts
of negligent administration do not require affidavits of merit, while derivative claims
for the medical negligence of hospital employees (which could be brought against
them individually) are not excepted from the affidavit of merit requirement merely
because the employees are not individually named as defendants in a plaintiff’s
complaint. The factual predicate of Plaintiff’s complaint is that Plaintiff, while a
Bayhealth patient, “was left unattended . . . and fell to the floor while getting out of
a chair he was left in,” that he suffered injuries as a result, and that Bayhealth was
negligent through Bayhealth nurses’ failure to observe proper safety protocols.23
These allegations match the statutory definition of medical negligence because they
relate to “health care or professional services rendered, or which should have been
rendered, by a health-care provider to a patient.” 24 Also instructive is the fact that
the instant claims are closely analogous to the allegations in Nichols. In Nichols, the
plaintiff was allegedly left unattended in her hospital room during a medical
emergency and consequently suffered injuries from a slip and fall. 25
10. Even though the affidavit of merit is deficient in this case, the Court
will not dismiss Plaintiff’s medical negligence claims at this juncture. The Court is
cognizant that the requirements the General Assembly established for affidavits of
merit are, as stated supra, “purposely minimal.”26 The Court will allow plaintiffs to
amend affidavits that “substantially comply” with 18 Del C. § 6853(a)(1) and (c) but
contain “deficiencies [that] appear to be drafting errors.” 27 This is a generous

23
Compl. ¶ 7.
24
18 Del. C. § 6801(6).
25
See generally Pro-Se Pl. First Am. Pet. for Damages, Nichols v. Christiana Care Health
Services, C.A. No.: N20C-09-166 MMJ (Del. Super. 2021) (D.I. 11).
26
Peck v. Orthopaedic Assocs. of Southerne Delaware, P.A., 2021 WL 3197549, at *5 (Del. Super.
July 28, 2021) (quoting Mammarella v. Evantash, 93 A.3d 629, 637 (Del. 2014)).
27
Id. (quoting Buck v. Nanticoke Mem’l Hosp., Inc., 2015 WL 2400537, at *1 (Del. Super. May
19, 2015)) (alteration in original); see also Dishmon, 32 A.3d at 345 (“The statute does not . . .
contemplate that affidavits that are initially incomplete are automatically subject to outright
6
standard, and has extended even to affidavits “completely fail[ing] to address the
alleged negligence of one of the defendants.” 28 Such an approach is consistent with
Delaware’s well-established public policy that “favors permitting a litigant a right
to a day in court.”29 Save for the omission of the expert’s licensure, the affidavit in
this case complies with the statutory requirements.
11. As previously noted, the Nichols Court left open the possibility that a
licensed nurse could qualify as a person “licensed to practice medicine,” as required
by 18 Del. C. § 6853(c). 30 To dispose of this motion, it is not necessary to determine
whether nurses in general “practice medicine,” but this court is persuaded that
licensed nurse practitioners, at a minimum, qualify under the statute.31 Accordingly,
if Plaintiff is able to amend the instant affidavit of merit to indicate that his expert is
licensed, then the affidavit of merit will comply fully with the statutory
requirements. Further, given that Plaintiff’s expert’s affidavit and curriculum vitae

dismissal.”); Farmer v. Manor Care of Wilmington, DE, LLC, 2018 WL 3689260, at *1–2 (Del.
Super. Aug. 2, 2018) (allowing plaintiff to amend affidavit that did not address proximate cause
or include expert’s current curriculum vitae because omissions could have been an administrative
or drafting error).
28
Peck, 2021 WL 3197549, at *5 & n.35 (citing Truitt v. Bay Health Med. Ctr., Inc., 2019 WL
5460190, at *2 (Del. Super. Oct. 24, 2019); Buck, 2015 WL 2400537, at *2).
29
Id. at *5 (quoting Buck, 2015 WL 2400537, at *1).
30
2021 WL 5349943, at *2 n. 13.
31
Cf. Daniels v. Green Valley SNF LLC, 2022 1637201, at *1 (Del. Super. May 23, 2022)
(approving an affidavit of merit authored by a licensed registered nurse); Zawask v. Christiana
Care Health Servs., 2020 WL 3866512, at *1 (Del. Super. July 7, 2020) (approving affidavit of
merit on negligence of nursing staff authored by licensed nurse); Cousineau v. Christiana Care
Health Servs., 2009 WL 406821, at *1 (Del. Super. Jan. 9, 2009) (reserving decision on affidavit
of merit because it was not clear whether affiant registered nurse’s license was current at the time
she signed the affidavit); Dougherty v. Horizon House, Inc., 2008 WL 3488532, at *4–5 (Del.
Super. June 25, 2008) (holding that nurse practitioner licensed in Pennsylvania did not satisfy
educational requirements for a “certificate to practice medicine” under Delaware law, and
therefore could not be considered “licensed to practice medicine,” but nonetheless finding
affidavit of merit compliant because holding otherwise would lead to absurd result); Cross v.
Davis, 2024 WL 4503673, at *2 (Del. Super. Oct. 15, 2024) (holding that a nurse practitioner
could provide an affidavit of merit as to the alleged negligence of a registered nurse and against
the nurse’s employer, but not as to the standard of care for a physician defendant).
7
indicate that he continues to practice as a nurse practitioner, it is a reasonable
inference that he is, in fact, licensed to do so, and that the omission of this fact was
merely a drafting error.
12. Although some of Plaintiff’s claims may be ordinary negligence claims
for which an affidavit of merit would not be required, the Court need not determine
that question at this juncture.
WHEREFORE, in consideration of the above, the Court finds that the
affidavit of merit Plaintiff filed on January 10, 2025, does not comply with the
applicable requirements of 18 Del. C. § 6853(a)(1) and (c). For the foregoing
reasons, however, the Court’s final decision on the Affidavit of Merit is
DEFERRED. Within 21 days from the date of this Order, Plaintiff may file a
supplemental affidavit of merit clarifying whether Plaintiff’s expert was licensed to
practice medicine as of the date of the affidavit.
IT IS SO ORDERED.

NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record

8