Background
Dawn Johnson filed a medical negligence lawsuit against Bayhealth Medical Center, alleging that during a physical therapy session, a physical therapist or other employee negligently attempted to walk her without required two-person assistance, causing her to fall and fracture her right ankle. Under Delaware law (18 Del. C. section 6853), every medical negligence complaint must be accompanied by an “affidavit of merit” — a sworn statement from a qualified medical expert opining that the defendant likely breached the applicable standard of care and that the breach caused the plaintiff’s injuries.
Bayhealth moved for the court to review Johnson’s affidavit of merit in camera (privately, by the judge alone) to ensure it met the statutory requirements. The affidavit was signed by an orthopaedic surgeon who stated he works with physical therapists “almost daily” in treating patients. However, the affidavit addressed the standard-of-care breach but did not explicitly state that the breach was a “proximate cause” of Johnson’s injuries — a required element under the statute.
The Court’s Holding
The court deferred its final ruling on the affidavit’s sufficiency, giving Johnson 20 days to file an amended affidavit that addresses the proximate cause element. The court first addressed whether the orthopaedic surgeon was qualified to opine on negligence arising from a physical therapy setting. Because the defendant is an institution rather than an individual physician, the stricter “same or similar” board certification requirement did not apply. The court found that the expert’s sworn statement about daily collaboration with physical therapists, combined with the substantial overlap between orthopaedic care and physical therapy, was sufficient at this early stage to satisfy the “same or similar field” requirement.
Turning to the missing proximate cause language, the court noted that the affidavit did state that the defendant was negligent “as claimed in the Complaint,” and the complaint itself alleges that the negligence was a “direct and proximate” cause of the injuries. The court acknowledged the deficiency but declined to dismiss the case over it. Citing Delaware precedent that affidavit requirements are “purposefully minimal” and that courts should not conduct a “minitrial” at this stage, the court treated the omission as an oversight. Delaware courts have a long track record of allowing plaintiffs to amend affidavits that fail to address proximate cause or a specific defendant, reflecting a public policy favoring resolution of disputes on the merits.
Key Takeaways
- Delaware’s affidavit of merit requirements for medical negligence cases are intentionally low-bar: the affidavit need not use the statute’s exact wording so long as it conveys the “functional equivalent,” and courts will construe the requirements narrowly because they are in derogation of the common law.
- When suing a hospital or medical institution (rather than an individual physician), the requirement that the expert be board-certified in the “same or similar” field does not apply. The expert still must practice in a sufficiently similar area of medicine, but this is a fact-intensive, flexible inquiry.
- Failing to include a proximate cause statement in the affidavit is a curable defect, not an automatic death sentence for the case. Courts will generally allow amendment, consistent with Delaware’s policy of giving litigants their day in court — but the 20-day window is a hard deadline, and missing it means dismissal.
Why It Matters
For medical malpractice practitioners in Delaware, this opinion is a useful refresher on the generous standards courts apply when reviewing affidavits of merit. The court’s willingness to let an orthopaedic surgeon opine on physical therapy negligence reflects the broad “concurrent expertise” principle — specialists who work closely with adjacent disciplines can qualify as experts for affidavit purposes. For plaintiffs’ counsel, the lesson is practical: always include explicit proximate cause language in the affidavit, even if the complaint already alleges it. The cost of curing the defect is low, but relying on judicial generosity is an unnecessary risk that adds delay and expense to the case.