SUPER|OR COURT
oF THE
STATE OF DELAWARE
VlleN L. MEDINlLLA LEoNARD L. WlLLlAMs JusTlcE CENTER
JuDGE 500 NoRTH KlNG STREET, sulTE 10400
WlLMlNGToN, DE 19801-3733
TELEPHONE (302) 255-0626
January 25, 2017
Tiffany M. Shrenk, Esq. Victor F. Battaglia, Esq.
MacElree Harvey, Ltd. Biggs and Battaglia
5721 Kennett Pike 921 N. Orange Street
Centreville, DE 19807 P.O. BoX 1489
Attorneyfor Plaz'ntijj‘" Wilmington, DE 19899
Attorneyfor Defendant CPS
Bradley J. Goewert, Esq.
Thomas J. Marcoz, Jr., Esq.
Marshall Dennehey Warner
Coleman & Goggin
1007 N. Orange Street, Suite 600
Wilmington, DE 19899
Attorneys for Defendant Estate
Re: Newborn v. Christiana Psychiatric Services, P.A., et al.
Case No.: N16C-05-04 7 VLM
Dear Counsel:
This is the Court’s ruling on Defendant Christiana Psychiatric Services, P.A.
(“CPS”)’s Motion to Dismiss in the above-captioned case. For the reasons stated
below, CPS’s Motion to Dismiss is DENIED.
Factual and Procedural Background
This is a Wrongful death and medical malpractice action against a deceased
psychiatrist, Dr. Jorge A. Pereira-Ogan (“Dr. Ogan”), and his former practice
group, CPS, alleging, inter alia, that Dr. Ogan negligently prescribed Plaintiff’s
decedent, Lindsay Ballas, a sample medication of Brintellix that caused her to
commit suicide in August 2014. CPS moves to dismiss the Complaint for failure
to state a claim upon Which relief may be granted. Defendant Estate of Dr. Ogan
takes no position on the Motion.
The Complaint states three claims of relief. Count I asserts a negligence
claim against Dr. Ogan. Count II asserts a negligence per se claim against Dr.
Ogan. Count III, the subject of the present Motion, is a claim of negligence against
CPS.
Count III, While titled simply “negligence,” alleges two distinct claims: one
of direct liability against CPS (i.e., a failure to supervise and monitor Dr. Ogan),
and another of vicarious liability (i.e., Dr. Ogan acted as an employee and/or agent
of CPS and committed negligence Within the scope of this relationship).
Count III of the Complaint states that: “At all times relevant hereto, Dr.
Ogan Was an employee and/or agent of [CPS].”l Dr. Ogan allegedly used a
prescription pad When Writing prescriptions to Ms. Ballas that bore CPS’s name
and address.2 The samples of the Brintellix provided to Ms. Ballas before her
death Were CPS Samples.3 CPS allegedly failed to “adequately instruct Dr. Ogan
as to his statutory duties,” and “failed to monitor the distribution of potentially
dangerous medications to Dr. Ogan.”4 CPS “l