Jayne v. Bayhealth Medical Center, Inc., K21C-03-021 NEP

Plaintiff Tina I. Jayne sued Bayhealth Medical Center alleging negligence by its employee, Dr. John R. Burger, in ankle/foot surgery and post‑operative care causing injury and pain.
Delaware law (18 Del. C. § 6853) requires an affidavit of merit for healthcare negligence suits: expert signature, current CV, licensure, practice in same/similar field (when defendant is a physician), board certification parity when applicable, and a statement that reasonable grounds exist to believe breach and proximate causation; affidavits are filed under seal and are reviewed in camera.
Plaintiff filed an affidavit of merit on May 11, 2021; the Court reviewed it in camera.
The expert signed the affidavit, attached a current CV, was licensed as of the affidavit date, and was Board certified in foot and ankle surgery with relevant experience.
Because Bayhealth is not a physician, the statute’s "same or similar field" Board‑certification requirement for the expert did not apply.
The affidavit stated that reasonable grounds exist to believe Bayhealth and Dr. Burger breached the standard of care and that the breach proximately caused Plaintiff’s injuries; the Court found the affidavit met § 6853(a)(1) and (c).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the affidavit of merit complies with 18 Del. C. § 6853(a)(1) and (c)	Affidavit satisfies statutory requirements and supports proximate causation	Requested Court review to test compliance with statutory form and substance	Court held the affidavit complies with § 6853(a)(1) and (c)
Whether the expert met qualification requirements (licensure, CV, relevant practice)	Expert is licensed, attached CV, practices in relevant field	Defendant challenged sufficiency of expert qualifications	Court found expert licensed, CV attached, and experienced in relevant foot/ankle care
Whether "same or similar field"/Board‑certification requirement applies when defendant is not a physician	N/A (Plaintiff alleged vicarious liability against a non‑physician employer)	Defendant argued statutory requirements should be met or interpreted strictly	Court held the "same or similar field" Board‑certification requirement does not apply because the defendant is not a physician
Whether the affidavit’s wording (not verbatim statutory language) is adequate	The affidavit need only meet the statute’s purposefully minimal requirements; exact phrasing not required	Defendant implied the affidavit should more closely track statutory text	Court held that non‑verbatim language satisfied the statute given the statute’s minimal affidavit standard

Mammarella v. Evantash, 93 A.3d 629 (Del. 2014) (Delaware Supreme Court: affidavit‑of‑merit requirements are purposefully minimal)
Dishmon v. Fucci, 32 A.3d 338 (Del. 2011) (affidavits that track statutory language are sufficient and a mini‑trial is not required at the affidavit stage)