Delaware Superior Court Clarifies “Wrong Body Part” Exception to Affidavit of Merit -

The Delaware Superior Court recently dismissed a plaintiff’s claim against a physician and clarified the meaning of one of the exceptions to the affidavit of merit requirement. In De Roche v. Grewal, 2016 WL 5793721, (Del. Super. Ct. Oct. 4, 2016), a plaintiff filed a medical negligence claim against a cardiologist and alleged that a cardiac catheterization was performed negligently. In particular, the plaintiff claimed that a probe became “entangled” in an artery, perforated it, and damaged tissue outside of the artery, causing bleeding and other complications. Although the plaintiff failed to file an affidavit of merit as required, he claimed that no affidavit was required under the statutory exception, as he claimed that the physician performed a surgical procedure on the wrong body part. 18 Del. C. § 6853(e)(3).