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Plaintiff filed suit against nursing home staff members alleging that defendants committed medical negligence that resulted in his father's death. A Superior Court judge dismissed the suit, stating that plaintiff's Affidavit of Merit failed to comply with 18 Del. C. 6853 because plaintiff failed to enclose a copy of the testifying expert's curriculum vitae. The court held that, since this error was procedural, a proper exercise of the trial judge's discretion would have permitted the later submission of the curriculum vitae. Therefore, the Superior Court judge erroneously dismissed the complaint.Receive FREE Daily Opinion Summaries by Email
IN THE SUPREME COURT OF THE STATE OF DELAWARE
MICHAEL DISHMON, individually
And as Executor of the Estate of
JAMES L. DISHMON, and JAMES
DISHMON, JR., LINDA DAVIS,
PATRICIA MILLER and
PASQUALE FUCCI, M.D. and
BERNIE SCHNEIDER, PA-C,
No. 784, 2010
Court Below: Superior Court
of the State of Delaware in
and for New Castle County
C.A. No. 06C-12-231
Submitted: September 28, 2011
Decided: November 10, 2011
Before STEELE, Chief Justice, HOLLAND, BERGER, JACOBS and
RIDGELY, Justices constituting the Court en Banc.
Upon appeal from the Superior Court. REVERSED and REMANDED.
Michael D. Bednash, Kimmel, Carter, Roman, & Peltz, P.A., Newark,
Delaware for appellants.
Bradley Goewert (argued) and Lorenza A. Wolhar, Marshall, Dennehey,
Warner, Coleman & Goggin, Wilmington, Delaware for appellees.
STEELE, Chief Justice.
On December 28, 2006, Michael Dishmon filed suit against nursing home
staff members, Pasquale Fucci, M.D. and Bernie Schneider, PA-C alleging that
both defendants had committed medical negligence that resulted in his father’s
death. Before trial, a Superior Court judge dismissed the suit, stating that the
plaintiff’s Affidavit of Merit failed to comply with 18 Del. C. § 6853. The
submitted affidavit sufficiently stated the expert’s qualification to proffer an
opinion, as well as his opinion that the defendants breached their respective
standards of care and that the breaches caused the injury. However, the plaintiff
failed to adhere to the procedural step of enclosing a copy of the testifying expert’s
curriculum vitae. Since this error was procedural, a proper exercise of the trial
judge’s discretion would have permitted the later submission of the curriculum
The Superior Court judge erroneously dismissed the complaint.
Accordingly, we REVERSE.
I. FACTS AND PROCEDURAL HISTORY
The decedent, James L. Dishmon, was admitted to the Hockessin Hills
nursing home on December 27, 2004.
He suffered from various medical
conditions, including heart problems, renal failure, diabetes, and a urinary tract
infection. The following Friday, December 31, 2004, James Dishmon died of
acute coronary ischemia and coronary artery disease. At that time, Dr. Fucci
served as James’ primary care physician and Schneider served as Dr. Fucci’s
Later, Michael Dishmon (“Dishmon”), brought an action under 10 Del. C. §
3701 et seq.1 seeking compensation for his father’s death on the theory that Dr.
Fucci and Schneider committed medical negligence.
Dishmon claimed that,
despite his instructions, Fucci and Schneider put a “Do Not Resuscitate” order in
place, and as consequence, the staff at Hockessin Hills made no effort to
resuscitate James before his death.
On December 28, 2006, Dishmon filed his complaint in the Superior Court.
At the same time, he also filed a Motion for Extension of Time to File an Affidavit
of Merit, which a judge granted. Thereafter, Dishmon’s attorney timely filed an
Affidavit of Merit, executed by Herbert Lee Muncie, Jr., M.D. Defendants Fucci
and Schneider then filed a Motion to Review the affidavit in camera. On April 25,
2007, a Superior Court judge determined that Dr. Muncie’s Affidavit of Merit
failed to comply with the requirements of 18 Del. C. § 6853, because: (1) the
filing did not include a copy of Dr. Muncie’s curriculum vitae; (2) the affidavit
failed to demonstrate that Dr. Muncie was sufficiently acquainted with the standard
of care applicable to a physician’s assistant; and, (3) Dr. Muncie failed to articulate
See 10 Del. C. § 3701 (“All causes of action, with exceptions, shall survive to and against the
executors or administrators of the person to, or against whom, the cause of action accrued”).
with adequate detail, his opinion that both defendants breached their respective
standards of care, and that those breaches proximately caused the decedent’s death.
The Superior Court judge, therefore, dismissed the case.
In response, Dishmon filed a Motion for Relief from Judgment on May 5,
2007, attaching the missing curriculum vitae. For reasons not apparent to this
Court, the Superior Court failed to rule on the Motion until September 16, 2010, at
which point the Court denied the motion for relief without providing reasons.
Dishmon now appeals.
II. STANDARD OF REVIEW
The focus of our inquiry is whether the Superior Court judge erred by
granting a motion to dismiss for failure to comply with the Delaware medical
negligence statute. Questions of statutory interpretation are questions of law that
this Court reviews de novo.2
We must, thus, determine whether the Superior
Court erred as a matter of law in formulating or applying the legal principles of 18
Del. C. § 6853.
Dishmon challenges all grounds on which the Superior Court judge based its
dismissal of the case.
First, Dishmon contends that he satisfied all statutory
Dambro v. Meyer, 974 A.2d 121, 129 (Del. 2009) (citing Delaware Bay Surgical Serv. v. Swier,
900 A.2d 646, 652 (Del. 2006).
requirements under 18 Del. C. § 6853. He argues that the affidavit sufficiently
established Dr. Muncie’s familiarity with the standards of medical care applicable
to each defendant. Dishmon additionally asserts that the affidavit adequately
articulated Dr. Muncie’s expert opinion that both defendants breached their
respective standards of care, and that in having done so, proximately caused Jones’
Secondly, Dishmon contends that the Superior Court judge erred by
refusing to allow him time in which to submit Dr. Muncie’s curriculum vitae after
the judge determined that the document did not accompany the Affidavit of Merit.
The Delaware medical negligence statute sets forth minimal
The purpose of 18 Del. C. § 68533 is to “require that expert medical
testimony be presented to allege a deviation from the applicable standard of care.”4
The General Assembly enacted this provision to reduce the filing of meritless
medical negligence claims.5 The statute operates as a prophylactic measure to
ensure the efficient administration of judicial resources. By requiring an Affidavit
of Merit in addition to the typical filing requirements, Section 6853 simply obliges
18 Del. C. § 6853 (“(a) No healthcare negligence lawsuit shall be filed in this State unless the
complaint is accompanied by: (1) An affidavit of merit as to each defendant signed by an expert
witness, as defined in § 6854 of this title, and accompanied by a current curriculum vitae of the
witness, stating that there are reasonable grounds to believe that there has been healthcare
medical negligence committed by each defendant”).
Beckett v. Beebe Medical Center, 897 A.2d 753, 757 (Del. 2006) (quoting Adams v. Luciani,
2003 WL 22873038, at *2 (Del. Dec. 2, 2003)).
a plaintiff to make a prima facie showing that there are reasonable grounds to
believe that negligence occurred and caused an injury.6 Accordingly, while the
requirements of Section 6853 play an important role in preventing frivolous
claims, they are purposefully minimal.7
In order to satisfy the prima facie burden, an Affidavit of Merit must only
contain an expert’s sworn statement that medical negligence occurred, along with
confirmation that he or she is qualified to proffer a medical opinion. By signing an
affidavit, an affiant is under the penalty of perjury for any false assertion.8 Owing
to the risk involved, courts in the initial review should assume that statements in
affidavits of merit are reliable without additional evidentiary support. Thus, an
expert may comply with Section 6853 by providing an affidavit of merit that tracks
the statutory language. The General Assembly did not intend a minitrial at this
stage of the litigation. Dr. Muncie, therefore, did not need to supplement his
affidavit testimony regarding his qualifications as an expert and his medical
opinion with additional evidentiary support.
On the issue of Dr. Muncie’s qualifications, the defendants argue that his
Affidavit of Merit failed to comply with 18 Del. C. § 6853 because it did not
Dambro, 974 A.2d at 134.
Green v. Weiner, 766 A.2d 492, 495-96 (Del. 2001).
See 11 Del. C. § 1223 (“A person is guilty of perjury in the first degree when the person swears
falsely and when the false statement consists of testimony and is material to the action,
proceeding or matter in which it is made”).
demonstrate that the expert was sufficiently acquainted with the standard of care
applicable to a physician’s assistant. 9 We disagree.
It is well established in Delaware that a physician may offer an opinion on
the standard of care of a non-physician, such as a physician's assistant, nursemidwife, or nurse.10 A physician need only establish his or her familiarity with the
degree of skill ordinarily employed by a practitioner of the type about which he or
she will be offering an opinion, in order for the opinion to be judicially
acceptable.11 Section 6854 reiterates this standard.12 Qualifying as an expert for
the purposes of the statute does not require meticulous validation of the proffered
expert’s proficiency in a specific medical field. In this case, the expert needed
only to establish his familiarity with the standard of care applicable to the area of
medicine practiced by both defendants in order to present a valid opinion capable
of passing Affidavit of Merit review.
18 Del. C.§ 6853 (“An expert signing an affidavit of merit shall be licensed to practice
medicine as of the date of the affidavit; and in the 3 years immediately preceding the alleged
negligent act has 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 or defendants, and the
expert shall be Board certified in the same or similar field of medicine if the defendant or
defendants is Board certified”).
Divita v. Sweeney, 2010 WL 5313492 at *2 (Del. Super. Nov. 29, 2010); see also Sturgis v.
Bayside Health Association Chartered, 942 A.2d 579 (Del. 2007); Simmons v. Bayhealth
Medical Center, Inc., 950 A .2d 659 (Del. 2008).
18 Del. C. § 6854 (“No person shall be competent to give expert medical testimony as to
applicable standards of skill and care unless such person is familiar with the degree of skill
ordinarily employed in the field of medicine on which he or she will testify”).
In his Affidavit of Merit, Dr. Muncie affirmed that he is board certified in
family practice and that “in the 29 years immediately preceding the alleged
negligent act, [he] was engaged in the treatment of patients and/or in the
teaching/academic side of medicine or similar field of medicine as the defendants.”
Although his statement deviated slightly from the wording of Section 6853, it is
the functional equivalent of the statutory language.
In accordance with the
minimal requirements of Section 6853, Dr. Muncie did not need to supplement his
statement with evidentiary support.
Thus, we agree with Dishmon that the
Affidavit of Merit sufficiently establishes that Dishmon’s expert was qualified to
testify as an expert on the standard of care applicable to both defendants.
Regarding the substance of Dr. Muncie’s opinion, the defendants contend
that his Affidavit fails to comply with the requirements of Section 6853 because it
does not distinguish between the standards of care applicable to the defendants,
and further, because it does not demonstrate how those applicable standards were
breached. We agree with Dishmon that the plain language of the statute requires
Section 6853 requires the Affidavit of Merit to “set forth the expert's opinion
that there are reasonable grounds to believe that the applicable standard of care was
breached by the named defendant(s) and that the breach was a proximate cause of
injury(ies) claimed in the complaint.”13 This Section requires that a qualified
medical professional review a plaintiff's claim, to determine and then to state that
there are reasonable grounds to believe that the health care provider breached the
applicable standard of care that caused the injuries claimed in the complaint.14
Medical experts need not couch their opinions in legal terms, state the facts that
underly their determination, or to articulate the standard of care with a high degree
of legal precision or “magic words.”15
After reviewing Dr. Muncie’s Affidavit, we find that the requirements of
Section 6853 have been met. His Affidavit reads:
[T]here are reasonable grounds to believe that medical negligence was
committed by Pasquale Fucci, M.D. and Bernie Schneider, PA-C in
the treatment and care of James Dishmon and that breach was the
proximate cause of the injuries sustained and Mr. Dishmon’s death.
It is clear that upon his review of the facts, Dr. Muncie concluded there was a
causal connection between the defendants’ breach and the decedent’s death.
Again, we acknowledge that although the expert’s statement does not mirror
Section 6853 exactly, his statement is the functional equivalent of the statutory
language, and thus, satisfies the requisite proximate cause standard. No additional
18 Del. C. § 6853(a).
Green, 766 A.2d at 495.
evidentiary support is needed to supplement Dr. Muncie’s opinion at this stage of
Upon review of these issues, we find that the Superior Court judge erred by
holding that Dr. Muncie’s opinion did not comport with the prima facie evidentiary
requirements of Section 6853.
The Superior Court has discretion to excuse procedural
deficiencies in appropriate circumstances where Delaware public
policy outweighs dismissal.
Dishmon’s final claim is that the Superior Court judge erred by dismissing
the suit because Dishmon failed to include his expert’s curriculum vitae with the
Affidavit of Merit. We agree that Section 6853 requires a plaintiff to supplement
his or her expert’s affidavit of merit with a curriculum vitae, and that failure to do
so constitutes non-compliance. We are unconvinced, however, that the trial judge
would have ordered dismissal had he initially recognized the sufficiency of the
Affidavit on its merits. In light of our holding that the Affidavit was sufficient on
its merits, we conclude, as a matter of law, that trial courts must give weight to
Delaware’s well known public policy that favors permitting a litigant to have his
day in court. In these circumstances, the absent curriculum vitae should have been
viewed as a procedural deficiency, but not an independent basis for dismissal.
In applicable part, Section 6853 requires a plaintiff to supplement an
affidavit of merit with the purported expert’s curriculum vitae.16 From the plain
language of Section 6853 it is clear that where a party fails to file an Affidavit of
Merit with the Superior Court, the Court will not entertain the case.17 The statute
does not, however, contemplate that affidavits that are initially incomplete are
automatically subject to outright dismissal. No language in Section 6853 or in any
court rule so provides or even addresses the situation in which a party files an
affidavit without the expert’s curriculum vitae.
In the absence of a contrary statute or court rule, the Superior Court judge
has discretion to choose the appropriate sanction for noncompliance with Section
6853. In Drejka, we recently cautioned that judges should be reluctant to dismiss
cases for procedural mistakes by counsel except as a last resort.18 A motion to
dismiss should be granted if no other sanction would be more appropriate under the
circumstances.19 The following factors bear importantly on whether or not a trial
judge’s dismissal of a complaint constitutes an abuse of discretion:
18 Del. C. § 6853(a)(1) (“If the required affidavit does not accompany the complaint or if a
motion to extend the time to file said affidavit as permitted by paragraph (2) of this subsection
has not been filed with the court, then the Prothonotary or clerk of the court shall refuse to file
the complaint and it shall not be docketed with the court”).
Drejka v. Hitchens Tire Serv. Inc., 15 A.3d 1221, 1224 (Del. 2010) (quoting Hoag v. Amex
Assurance Co., 953 A.2d 713, 717 (Del. 2008)).
Hoag, 953 A.2d at 717 (citations omitted).
(1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet scheduling
orders and respond to discovery;
(3) a history of dilatoriness;
(4) whether the conduct of the party or the attorney was willful or in bad
(5) the effectiveness of sanctions other than dismissal, which entails an
analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.20
Those factors, applied here, lead us to conclude that a failure to enclose the
curriculum vitae in a sealed envelope does not, by itself, justify dismissal. No
facts suggest that Dishmon was personally responsible for his attorney’s failure to
include Dr. Muncie’s curriculum vitae with the Affidavit of Merit. An Affidavit of
Merit is not discoverable under the statute; therefore, the defense would not be
prejudiced by a tardy filing.21 Although Dishmon did request a 60-day extension
in which to file an affidavit, there is no evidence of any history of dilatoriness. No
evidence suggests that Dishmon’s attorney acted in bad faith. The trial judge never
previously imposed any other or lesser sanctions during the course of the
proceedings, so there is no reasonable indication that a lesser sanction would have
Id. (citing, Minna v. Energy Coal S.p.A., 984 A.2d 1210, 1215 (Del. 2009) (citations omitted).
18 Del. C. § 6853(d) (“The affidavit of merit shall not be discoverable in any medical
been ineffective. Lastly, on the merits, Dr. Muncie’s Affidavit of Merit established
the necessary prima facie showing of medical negligence. Therefore the claim, at
the very least, is not meritless, and is suitable for litigation. Accordingly, we find
that the Superior Court judge should have exercised discretion to allow the plaintiff
a reasonable time to file his expert’s curriculum vitae to avoid a dismissal of the
To reiterate, Delaware has a strong public policy that favors permitting a
litigant a right to a day in court.23
Courts should apply rules with “liberal
construction because of the underlying public policy that favors a trial on the
merits, as distinguished from a judgment based on a default.”24
Even if this appeal were focused on the Superior Court’s denial of
Dishmon’s Super. Ct. Civ. R. 60(b) motion, rather than on the initial dismissal of
the case, we would arrive at the same conclusion. Rulings on Rule 60(b) motions
are reviewed under a three-pronged test, although only the first prong—whether
the moving party’s conduct, which resulted in dismissal, was the product of
Compare McBride v. Shipley Manor Health Care, 2005 WL 2090695 (Del. Super. Apr. 28,
2005) (The Superior Court allowed plaintiff 21 days to file an affidavit of merit to avoid
dismissal of the complaint); Meloney v. Nanticoke Gastroenterology, P.A. and Mackler, 2006
WL 2329377 (Del. Super. June 18, 2006) (Superior Court allowed the plaintiff 18 days in which
to file a second Affidavit of Merit that contained the expert’s curriculum vitae because one was
missing from the first filing).
Beckett, 897 A.2d at 757-58 (citing Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998)).
Id. (citing Old Guard Ins. Co. v. Jimmy's Grille, Inc. 2004 WL 2154286, at * 13 (Del. Sept.
21, 2004) (Order) (citations omitted)).
excusable neglect25—is relevant here.26
Under Rule 60(b) “excusable neglect
exists if the moving party has valid reasons for the neglect—reasons showing that
the neglect may have been the act of a reasonably prudent person under the
“In determining whether the moving party's neglect was
‘excusable,’ all surrounding circumstances may be considered.”28 However, we
also recognize that a “mere showing of negligence or carelessness without a valid
reason may be deemed insufficient.”29
Dishmon’s attorney argues that under the circumstances, his failure to timely
file Dr. Muncie’s curriculum vitae falls within the purview of excusable neglect.
Therefore, the Superior Court judge should have granted him an extension in
which to become fully compliant with the requirements of the statute. We agree.
Under 18 Del. C. § 6853(a) (1), an expert’s affidavit and an attached
curriculum vitae must be filed with the court in a sealed envelope labeled
“CONFIDENTIAL” and is subject to review only by a Superior Court judge.30
Power-Booth v. Power-Booth, 962 A.2d 257 (Del. 2008). See Donohue v. Donohue 2005 WL
1421023 at *1 (Del. 2005).
Id. (quoting DiSabatino v. DiSabatino, 2007 WL 812766 at *3 (Del. Mar. 16, 2007) (TABLE).
Id. (See DiSabatino, 2007 WL 812766 at *3 (citing McDonald v. S & J Hotel. Enters., 2002
WL 1978933 at *2 (Del.Super., August 27, 2002)).
DiSabatino, 2007 WL 812766 at *3 (quoting McDonald, 2002 WL 1978933 at *2).
18 Del. C. § 6853(a)(1) (“The affidavit of merit and curriculum vitae shall be filed with the
court in a sealed envelope which envelope shall state on its face: "CONFIDENTIAL SUBJECT
The logical inference is that once the envelope is sealed, a prudent person would
refrain from breaking the seal to review the envelope’s contents where he or she
believes all the necessary documents are enclosed. It is reasonable to infer that
Dishmon’s attorney did not open the sealed envelope containing Dr. Muncie’s
Affidavit of Merit because the attorney reasonably believed that the expert’s
curriculum vitae was also enclosed. In drawing that inference, we cannot ignore
the reality of how work is often delegated in a law office. Ministerial tasks, such
as gathering and preparing materials to be filed in anticipation of litigation, are not
uncommonly reserved for administrative staff. In that environment, an attorney
who fails to file all required documents is not necessarily careless, but rather may
have mistakenly relied on someone else to properly prepare and seal within the
envelope all materials required by Section 6853. Therefore, in this case counsel’s
error should have been construed as excusable neglect.
In summary, considerations of sound Delaware public policy lead us to
conclude that the missing curriculum vitae, standing alone, was an insufficient
basis to dismiss the plaintiff’s complaint.
An additional matter.
At the periphery of this case is the highly regrettable fact that we are now
being asked, in 2011, to rule on a judgment dismissing a complaint that was filed
TO 18 DEL. C., SECTION 6853. THE CONTENTS OF THIS ENVELOPE MAY ONLY BE
VIEWED BY A JUDGE OF THE SUPERIOR COURT”).
in 2006. Clearly, judicial processes are what delayed the Superior Court’s final
Inexplicably, however, the unconscionably delayed final judgment
contained no reasoning. It is well settled that the legal requirement of supplying
reasons for a judicial decision is a matter of judicial ethics and of law.31 Thus, we
urge trial judges to supply a full explanation supporting their denials of litigants’
motions for relief.
The Superior Court erred by dismissing Dishmon’s complaint.
Delaware medical negligence statute sets forth minimal requirements that do not
oblige experts to bolster their sworn statements with supplemental evidence.
Furthermore, although submission of an expert’s curriculum vitae is mandatory
under 18 Del. C. § 6853(c), a trial judge may, in the exercise of sound discretion
grant relief allowing compliance with this requirement. In light of Delaware public
policy and the surrounding circumstances, we find that the dismissal of the initial
complaint was too harsh a sanction. The judgment of Superior Court is reversed
and remanded for proceedings consistent with this Opinion. Jurisdiction is not
Baylis v. State, 2010 WL 376908 at *1 (Del. Jan. 14, 2010) (ORDER) (citing Cannon v.
Miller, 412 A.2d 946, 947 (Del. 1980).