Johnson v. Bayhealth Medical Center

── Johnson v. Bayhealth Medical Center ── Court: Superior Court of Delaware Date: May 22, 2026 Category: General 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 “t