Delaware Affidavit of Merit (18 Del. C. § 6853)

AFFIDAVIT OF MERIT

Pursuant to 18 Del. C. § 6853

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR [☐ NEW CASTLE / ☐ KENT / ☐ SUSSEX] COUNTY

CONFIDENTIAL — SUBJECT TO 18 Del. C. § 6853

THIS DOCUMENT, TOGETHER WITH THE ATTACHED CURRICULUM VITAE, MUST BE FILED IN A SEALED ENVELOPE BEARING THE FOLLOWING LEGEND ON ITS FACE:

"Confidential — Subject to 18 Del. C. § 6853. The contents of this envelope may only be viewed by a Judge of the Superior Court."

AFFIDAVIT OF MERIT

STATE OF [_____________] )
) ss.
COUNTY OF [_____________] )

I, [EXPERT FULL NAME, including all post-nominal degrees], being first duly sworn according to law, depose and state under oath as follows:

I. AFFIANT'S IDENTITY AND QUALIFICATIONS

1. I am over the age of eighteen (18) years and am competent to make this Affidavit. The facts stated herein are based upon my personal knowledge, education, training, clinical experience, and review of the records identified below.

2. I am a [☐ medical doctor (M.D.) / ☐ doctor of osteopathy (D.O.) / ☐ doctor of dental surgery (D.D.S.) / ☐ doctor of dental medicine (D.M.D.) / ☐ podiatrist (D.P.M.) / ☐ doctor of nursing practice (D.N.P.) / ☐ other licensed health-care provider — specify: ____________] currently licensed to practice [SPECIALTY] in the State(s) of [_____________] (Primary License No. [____________], issued [DATE], in good standing).

3. I am Board-certified by the [☐ American Board of [SPECIALTY] / ☐ American Osteopathic Board of [SPECIALTY] / ☐ other recognized certifying board: __________________], certification number [____________], original certification date [__/__/____], current expiration / recertification date [__/__/____].

4. [☐ I am NOT Board-certified, and Board certification is not required of me under 18 Del. C. § 6853(c) because (a) I began the practice of medicine prior to the existence of Board certification in the applicable specialty, OR (b) the Defendant is not Board-certified in the relevant specialty.]

5. Compliance with 18 Del. C. § 6854 expert qualifications. During the three (3) years immediately preceding the alleged negligent act or omission complained of, I have been engaged in:

[☐ The active treatment of patients in the same or similar field of medicine as Defendant [____]; AND/OR

☐ The teaching of, or academic engagement in, the same or similar field of medicine as Defendant [____] at [INSTITUTION].]

The same-or-similar-specialty correspondence is established as follows: [State the matching/similarity of specialty between affiant and each Defendant — e.g., "I am Board-certified in Internal Medicine with a subspecialty in Cardiology, the same field of medicine in which Defendant Dr. [____] practiced and treated Plaintiff."].

6. [☐ Delaware/contiguous-state competency presumption — 18 Del. C. § 6854: I have practiced actively for the previous five (5) years in [☐ the State of Delaware / ☐ a state contiguous to Delaware, within seventy-five (75) miles of the Delaware capital], and I am therefore presumed competent under § 6854.]

7. My current curriculum vitae, which sets forth my educational background, training, certifications, hospital affiliations, academic appointments, publications, prior expert engagements, and licenses, is attached hereto as Exhibit 1 and is incorporated by reference. The curriculum vitae is current as of the date of this Affidavit.

II. MATERIALS REVIEWED

8. In forming the opinions stated in this Affidavit, I have reviewed the following materials:

a. [☐ The medical records of Plaintiff [PLAINTIFF NAME] from [HEALTH-CARE PROVIDER / FACILITY], for the period [__/__/____] through [__/__/____];]

b. [☐ Operative reports, anesthesia records, and recovery-room notes from [DATE];]

c. [☐ Imaging studies, including [____________________], with radiology reports;]

d. [☐ Pathology reports and laboratory results from [____________________];]

e. [☐ Nursing notes, medication administration records, and flowsheets;]

f. [☐ Emergency department / triage records;]

g. [☐ Outpatient and primary-care records;]

h. [☐ Discharge summaries and consultation reports;]

i. [☐ Death certificate and autopsy report (if applicable);]

j. [☐ Pertinent medical literature, practice guidelines, and standard-of-care references identified in Exhibit 2;]

k. [☐ Defendant's deposition or interrogatory responses (if available pre-suit);]

l. [☐ The draft Complaint to be filed in the above-captioned action;]

m. [☐ Other: ____________________________________________________________].

III. STANDARD OF CARE AND OPINIONS

9. Based on my education, training, board certification, clinical experience, review of the foregoing materials, and to a reasonable degree of medical probability, it is my professional opinion that:

a. The applicable standard of care. A reasonably competent [SPECIALTY] practitioner, under the same or similar circumstances as those presented by Plaintiff on [__/__/____], would have:

i. [______________________________________________________________________________];

ii. [______________________________________________________________________________];

iii. [______________________________________________________________________________].

b. Breach of the standard of care. Defendant [DEFENDANT NAME] deviated from the applicable standard of care by:

i. [______________________________________________________________________________];

ii. [______________________________________________________________________________];

iii. [______________________________________________________________________________].

c. Reasonable grounds. There are reasonable grounds to believe that there has been health-care medical negligence committed by Defendant [DEFENDANT NAME], as that term is defined in 18 Del. C. § 6801(7), in the care and treatment rendered to Plaintiff.

10. Per-Defendant attestation. Pursuant to 18 Del. C. § 6853(a)(1), I make the following separate attestations as to each named Defendant:

11. [☐ Where applicable: As to Defendant [INSTITUTIONAL DEFENDANT], my opinion of reasonable grounds is based on (a) the vicarious liability of the institution for its employees, agents, and apparent agents whose conduct I have reviewed and as to whom there are reasonable grounds for negligence, and/or (b) independent institutional negligence, including [☐ failure to credential / ☐ failure to staff / ☐ failure to supervise / ☐ failure to enforce protocols / ☐ negligent maintenance of equipment].]

IV. CONFIDENTIALITY AND ADMISSIBILITY

12. I understand and acknowledge that, pursuant to 18 Del. C. § 6853(d):

a. The contents of this Affidavit and the fact that it has been signed shall not be admissible in evidence in this medical negligence action;

b. I may not be questioned in any respect about the existence of this Affidavit in the underlying action or in any subsequent unrelated medical negligence action in which I am a witness;

c. The Affidavit and curriculum vitae must be filed in a sealed envelope marked as confidential and viewable only by a Judge of the Superior Court.

13. The opinions stated above are limited to the information available to me as of the date of this Affidavit. I reserve the right to modify, supplement, or withdraw these opinions upon receipt of additional medical records, deposition testimony, expert reports, or other evidence developed during the litigation.

14. I have not been compensated for the substance of the opinions expressed in this Affidavit; my compensation is for time expended in record review and consultation only and is not contingent on the outcome of the litigation.

V. ATTESTATION

FURTHER YOUR AFFIANT SAYETH NAUGHT.

____________________________________
[EXPERT FULL NAME], [DEGREES]
[Mailing Address]
[City, State, ZIP]
Phone: [(___) ___-____]
Email: [____________________________________]

NOTARY ACKNOWLEDGMENT

STATE OF [_____________] )
) ss.
COUNTY OF [_____________] )

SWORN TO AND SUBSCRIBED before me, the undersigned authority, by [EXPERT FULL NAME], who is [☐ personally known to me / ☐ produced [_______________] as identification], this _____ day of __________, 20___.

____________________________________
Notary Public
Printed Name: [____________________]
My Commission Expires: ____________

[NOTARY SEAL]

SEALED-FILING COVER SHEET

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR [_______________] COUNTY

CONFIDENTIAL — SUBJECT TO 18 Del. C. § 6853

The contents of this envelope may only be viewed by a Judge of the Superior Court.

Filed by: [ATTORNEY NAME], Esquire (Bar I.D. No. [______])
[LAW FIRM NAME]
[Address]
Date: [__/__/____]

CHECKLIST FOR FILING UNDER 18 Del. C. § 6853

☐ Affidavit of Merit signed and notarized by qualified expert
☐ Expert is licensed to practice as of the date of the Affidavit
☐ Expert was, in the 3 years preceding the alleged negligent act, engaged in active patient treatment OR teaching/academic activity in the same or similar field as Defendant
☐ Expert is Board-certified in the same or similar field if Defendant is Board-certified (or qualifies for the pre-Board-certification carve-out)
☐ Expert opines that there are "reasonable grounds to believe that there has been health-care medical negligence" as to EACH named Defendant
☐ Expert's current curriculum vitae attached as Exhibit 1
☐ Affidavit and CV placed in a sealed envelope bearing the § 6853(a)(1) confidentiality legend
☐ Sealed envelope filed contemporaneously with the Complaint (NOT separately, NOT after)
☐ No specific dollar damage amount referenced (consistent with Delaware no-cap pleading practice)
☐ Counsel verified the expert holds no disqualifying conflict (e.g., prior treatment of Defendant's patient, employment by Defendant institution within prior [____] years)

EXTENSION-OF-TIME ALTERNATIVE — 18 Del. C. § 6853(a)(2)

If, at the time of filing the Complaint, the Affidavit of Merit is not yet available, counsel shall file a Motion for Extension of Time to File Affidavit of Merit under 18 Del. C. § 6853(a)(2), supported by an attorney certification of good cause. The Court may extend the time for filing for up to sixty (60) days.

REBUTTABLE INFERENCE EXEMPTION — 18 Del. C. § 6853(e)

An Affidavit of Merit is unnecessary if the Complaint alleges any of the following:

1. A foreign object was unintentionally left within the body of the patient following surgery;
2. An explosion or fire originating in a substance used in treatment occurred in the course of treatment; or
3. A surgical procedure was performed on the wrong patient or on the wrong organ, limb, or body part of the patient.

These three categories are exclusive under § 6853(e). Outside these scenarios, expert medical testimony — and a corresponding Affidavit of Merit — is required.

SOURCES AND REFERENCES

• 18 Del. C. § 6801 — Definitions (health-care provider; health-care medical negligence)
• 18 Del. C. § 6853 — Affidavit of merit; expert medical testimony; rebuttable inferences
• 18 Del. C. § 6854 — Expert witness qualifications (Board-certification matching, 3-year treatment/teaching window, Delaware/contiguous-state presumption)
• 18 Del. C. § 6855 — Punitive damages
• 18 Del. C. § 6856 — Statute of limitations (2-year / 3-year discovery; minor tolling; 90-day NOI)
• Del. Super. Ct. Civ. R. 5(d), 7, 11
• Beckett v. Beebe Med. Ctr., Inc., 897 A.2d 753 (Del. 2006) — § 6853(e) exclusivity for inferences
• Sostre v. Swift, 603 A.2d 809 (Del. 1992) — expert testimony requirement
• Wilson v. Triangle Oil Co., 566 A.2d 1024 (Del. Super. 1989) — affidavit pleading standards (analogously applied)

This template is for educational and drafting reference only. The Affidavit of Merit is jurisdictional under Delaware law — failure to comply with 18 Del. C. § 6853 will result in refusal to docket and potential dismissal. Verify all citations against delcode.delaware.gov and consult licensed Delaware counsel before filing.