Delaware General Assembly

AN ACT TO AMEND TITLES 10 AND 18 OF THE DELAWARE CODE RELATING TO HEALTH CARE MEDICAL NEGLIGENCE INSURANCE AND LITIGATION, AND COURT PROCEDURE.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF DELAWARE :

Ҥ 6853. Affidavit of Merit, expert medical testimony.

(a) No healthcare negligence lawsuit shall be filed in this State unless the complaint is accompanied by:

(i) 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. If the required affidavit is not filed, the suit shall be dismissed. 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 TO 18 DEL. C., SECTION 6853. THE CONTENTS OF THIS ENVELOPE MAY ONLY BE VIEWED BY A JUDGE OF THE SUPERIOR COURT.”

Notwithstanding any law or rule to the contrary the Affidavit of Merit shall be and shall remain sealed and confidential, except as provided in Subsection (d) of this Section, shall not be a public record and is exempt from Chapter 100, Title 29 of this Code.

(ii) The Court, may, upon timely motion of the plaintiff and for good cause shown, grant a single sixty (60) day extension for the time of filing the Affidavit of Merit. Good cause shall include, but not be limited to, the inability to obtain, despite reasonable efforts, relevant medical records for expert review.

(iii) A Motion to Extend the time for filing an Affidavit of Merit is timely only if it is filed on or before the filing date that the plaintiff seeks to extend. The filing of a Motion to Extend the time for filing an Affidavit of Merit tolls the time period within which the affidavit must be filed until the Court rules on the motion.

(iv) The defendant(s) is not required to take any action with respect to the complaint in such cases until twenty (20) days after plaintiff has filed the Affidavit(s) of Merit.

(b) An Affidavit of Merit shall be unnecessary if the complaint alleges a rebuttable inference of medical negligence, the grounds of which are set forth below in Subsection (e).

(c) ‘Qualifications of Expert and Contents of Affidavit’. The Affidavit(s) of Merit shall 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. An expert signing an Affidavit of Merit shall be licensed to practice medicine as of the date of the affidavit; and in the three (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(s), and the expert shall be Board Certified in the same or similar field of medicine if the defendant(s) is Board certified. The Board Certification requirement shall not apply to an expert that began his practice of medicine prior to the existence of Board Certification in the applicable specialty.

(d) Upon motion by the defendant the Court shall determine in camera if the Affidavit of Merit complies with paragraph (a)(i) and Subsection (c) of this Section. The Affidavit of Merit shall not be discoverable in any medical negligence action. The Affidavit of Merit itself, and the fact that an expert has signed the Affidavit of Merit, shall not be admissible nor may the expert be questioned in any respect about the existence of said affidavit in the underlying medical negligence action or any subsequent unrelated medical negligence action in which that expert is a witness.”.

“(3) A plaintiff may toll the above Statutes of Limitations for a period of time up to ninety (90) days from the applicable limitations contained in Sections (1) and (2) by sending a Notice of Intent to investigate to each potential defendant(s) by Certified Mail, Return Receipt Requested, at the defendant (s’) regular place of business. The notice shall state the name of the potential defendant(s), the potential plaintiff and give a brief description of the issue being investigated by plaintiff’s counsel. The ninety (90) days shall run from the last day of the applicable Statute of Limitations contained in Sections (1) and (2). The notice shall not be filed with the Court. If suit is filed after the applicable Statute of Limitations in Sections (1) and (2) above, but before the ninety (90) day period in this Section expires, a copy of the notice shall be attached to the complaint to prove compliance with the Statute of Limitations.”.

(a) Prompt Production of Records. A health care provider who receives an appropriate authorization duly signed by an existing or former patient, guardian or personal representative, shall produce a true and correct complete copy of the requested medical records, which shall be produced in a reasonably legible fashion within forty-five (45) days of receipt of the request. The health care provider’s fee for copying the records shall be reasonable. If prepayment is required by the health care provider, written notice of prepayment shall be provided to the requesting party within fourteen (14) days of the receipt of the original request. Upon payment of any prepayment charge, the health care provider shall produce the requested records within the latter of fourteen (14) days of receiving payment or forty-five (45) days of receipt of the original request.

(b) A health care provider may object in writing to production of the records for good cause. Any objection must state the grounds for failure or refusal to comply with the records request and must be served on the requesting party within thirty (30) days of the date of receipt of the request. Said objection, if found to be for good cause, shall serve to toll the time period allowable for production of records.

(c) Failure or refusal to produce medical records pursuant to this Section shall result in a civil penalty not to exceed $25.00 per day for every business day the records are delinquent in being produced in addition to any other sanctions deemed appropriate by the Court, provided, however, that motion to the Court to enforce compliance by Court Order must be made by the requesting party no later than sixty (60) days from the date of the original request. If the records produced are incomplete, the requesting party shall have a reasonable time following discovery of the missing records in which to file a motion with the Court for enforcement of this Section.

(d) If the requesting party is a plaintiff in a complaint pending before a Court of competent jurisdiction alleging health care negligence, this statute shall not apply to any request for medical records served on a named defendant(s) in that litigation.

(e) The Superior Court shall have jurisdiction over this Section and shall schedule such matters on an expedited basis.”.

Approved July 11, 2003