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

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