Vick v. Khan

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STACIA VICK and
CHADWICK VICK,
C.A. No. K17C-09-007 NEP
Plaintiffs, In and For Kent County

V.

DR. NASREEN KHAN, KHAN
OBSTETRICS AND GYNECOLOGY
ASSOCIATES, P.A., BAYHEALTH
INC., BAYHEALTH MEDICAL
CENTER, and KENT GENERAL
HOSPITAL,

Defendants.

Nee Nee eee” Nee ee ee ee” ee” ee” ee” ee’ ee ee’ ee

Submitted: March 15, 2019
Decided: May 17, 2019

MEMORANDUM OPINION AND ORDER

Upon Khan Defendants’ Motion to Strike Plaintiffs’ Untimely Motion for
Summary Judgment and Ten Untimely Motions in Limine
DENIED

Upon Plaintiffs’ Motion to Strike Bayhealth’s Motion for
Summary Judgment
DENIED

Upon Khan Defendants’ Motion for Partial Summary Judgment on
Informed Consent Claims
GRANTED

Upon Plaintiffs’ Motion for Partial Summary Judgment
DENIED
Upon Khan Defendants’ Motion for Partial Summary Judgment on Plaintiffs’
Medical Negligence Claims in Performance of Hysterectomy and Episiotomy
GRANTED

Upon Khan Defendants’ Motion for Partial Summary Judgment on
Punitive Damages Claims
GRANTED

Upon Bayhealth’s Motion for Summary Judgment
GRANTED

Stacia Vick and Chadwick Vick, Plaintiffs, Pro se.

Thomas J. Marcoz, Jr., Esquire and Catherine M. Cramer, Esquire, Marshall,
Dennehey, Warner, Coleman & Goggin, for Defendants Nasreen Khan, DO and
Khan Obstetrics and Gynecology Associates, PA.

James E. Drnec, Esquire and Katherine J. Sullivan, Esquire, Wharton, Levin,
Ehrmantraut & Klein, P.A., for Defendants Bayhealth Medical Center, Inc.,
Bayhealth, Inc., and Kent General Hospital.

Primos, J.
Before the Court are several dispositive motions including (1) a motion for
partial summary judgment on the issue of informed consent filed by Defendants
Nasreen Khan, DO, and Khan Obstetrics and Gynecology Associates, PA
(hereinafter collectively the “Khan Defendants”); (2) a cross-motion for partial
summary judgment on the same issue filed by Plaintiffs Stacia Vick and Chadwick
Vick (hereinafter “Plaintiffs”); (3) the Khan Defendants’ motion for partial
summary judgment on Plaintiffs’ medical negligence claims regarding
performance of a hysterectomy and an episiotomy; (4) the Khan Defendants’
motion for partial summary judgment on Plaintiffs’ punitive damages claims; and
(5) a motion for summary judgment filed by Defendants Bayhealth Inc., Bayhealth
Medical Center, Inc., and Kent General Hospital (hereinafter collectively
“Bayhealth,” and collectively with the Khan Defendants, “Defendants”).
Additionally, Plaintiffs and the Khan Defendants have each filed motions to strike
for untimeliness. This opinion sets forth the Court’s decision on the motions.

The Court will first provide a brief recitation of the facts and procedural
history before analyzing the motions to strike and then the dispositive motions.

I. FACTUAL AND PROCEDURAL BACKGROUND
The facts and the relevant procedural history as reflected by the record are,

briefly, as follows.
Ms. Vick was a patient of Dr. Khan during her pregnancy. Dr. Khan saw Ms.
Vick in her office over a six-month period and ultimately delivered Ms. Vick’s
child at Kent General Hospital on June 11, 2015. Before delivery, Dr. Khan
performed an episiotomy on Ms. Vick, but allegedly failed to close the laceration
properly.

On June 12, 2015, as a result of postpartum hemorrhaging, Dr. Khan
performed an emergency hysterectomy on Ms. Vick. Ms. Vick had allegedly
previously signed a consent form on June 9, 2015, providing consent for a
hysterectomy in the event of an emergency situation. However, prior to Dr. Khan’s
performing the procedure, Ms. Vick affirmatively indicated to Dr. Khan that she
was not consenting to the procedure. Ms. Vick was allegedly restrained against her
will during the procedure.

Plaintiffs filed their complaint on September 6, 2017, and filed an amended
complaint on October 2, 2017. Bayhealth filed a partial motion to dismiss (in
which the Khan Defendants later joined), arguing that many of the counts alleged
in the complaint were time-barred. The Court granted the motion on January 5,
2018, dismissing counts III — VUI of Plaintiffs’ amended complaint as time-barred;
those counts alleged various tortious actions on Defendants’ part, including assault,

false imprisonment, intentional and negligent infliction of emotional distress,
negligence, and fraud. Defendants conceded that counts I and II were not time-
barred, as they are medical negligence claims and Plaintiffs had filed a proper
notice of intent, which, pursuant to 18 Del. C. § 6856, provided a 90-day tolling
period.

On May 3, 2018, Plaintiffs filed a subsequent motion to amend their
complaint. Plaintiffs’ proposed amended complaint sought to add counts for
“Medical Malpractice by fraud, conversion, assault and battery, false imprisonment
and intentional infliction of emotional distress” and for “Medical Negligence by
invasion of privacy, negligence and negligent infliction of emotional distress.”
This motion was denied by the Commissioner, who found that the proposed
changes to the complaint were superficial and not substantive, and that this Court
had previously rejected Plaintiffs’ arguments that those claims were proper and had
dismissed them. The decision of the Commissioner was subsequently affirmed by
this Court in an August 22, 2018, order. Plaintiffs sought interlocutory review of
the Court’s January 5, 2018, and August 22, 2018, orders. On February 21, 2019,
the Delaware Supreme Court denied interlocutory review.

Plaintiffs argue that Dr. Khan lacked consent to perform the emergency
hysterectomy and that the hysterectomy and episiotomy were performed

negligently. Additionally, Plaintiffs allege that Bayhealth is vicariously liable for
Dr. Khan’s acts or omissions and that Bayhealth was directly negligent by assisting
Dr. Khan in the performance of the hysterectomy despite a lack of consent. Lastly,
Plaintiffs assert claims against all Defendants for punitive damages.
Il. STANDARD OF REVIEW

Generally, when reviewing a motion for summary judgment pursuant to
Delaware Superior Court Civil Rule 56, the Court must determine whether any
genuine issues of material fact exist.' The moving party bears the burden of
showing that there are no genuine issues of material fact, entitling the moving party
to judgment as a matter of law.” Further, the Court must view all factual inferences
in a light most favorable to the non-moving party.’ Therefore, summary judgment
will not be granted if it appears that there is a material fact in dispute or that further
inquiry into the facts would be appropriate.* However, summary judgment may be
appropriate where a non-moving party that bears the burden of proof at trial fails to

“establish the existence of an element essential to that party’s case.””

* Super. Ct. R. 56(c); Wilmington Trust Co. v. Aetna, 690 A.2d 914, 916 (Del. 1996).

* Moore vy. Sizemore, 405 A.2d 679 (Del. 1979).

> Alabi v. DHL Airways, Inc., 583 A.2d 1358, 1361 (Del. 1990).

“ Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. Super. 1962), rev'd in part on procedural
grounds and aff'd in part, 208 A.2d 495 (Del. 1965).

° Smith v. Haldeman, 2012 WL 3611895, at *1 (Del. Super. Aug. 21, 2012).
The filing of cross-motions for summary judgment does not alter the
summary judgment standard,° and

the existence of cross motions for summary judgment
does not act per se as a concession that there is an
absence of factual issues. Rather, a party moving for
summary judgment concedes the absence of a factual
issue and the truth of the nonmoving party's allegations
only for the purposes of its own motion, and does not
waive its right to assert that there are disputed facts that
preclude summary judgment in favor of the other party.
Thus, the mere filing of a cross motion for summary
Judgment does not serve as a waiver of the movant's right
to assert the existence of a factual dispute as to the other
party's motion.’

Ill. DISCUSSION
The Court will begin its analysis by examining the motions to strike filed by
Plaintiffs and the Khan Defendants. The Court will then address the Khan
Defendants’ motion for partial summary judgment and Plaintiffs’ cross-motion on
the issue of informed consent, followed by the Khan Defendants’ motions on
certain of Plaintiffs’ medical negligence claims and claims for punitive damages.

Lastly, the Court will consider Bayhealth’s motion for summary judgment.

* Total Care Physicians, P.A. vy. O'Hara, 798 A.2d 1043, 1050 (Del. Super. 2001) (citing Haas v.
Indian River Vol. Fire Co., 2000 WL 1336730 (Del. Ch. Aug. 14, 2000).

” Total Care Physicians, 798 A.2d at 1050 (quoting United Vanguard Fund, Inc. v. TakeCare,
Inc., 693 A.2d 1076, 1079 (Del. 1997)).
A. Motions to Strike

This Court previously issued a scheduling order setting forth deadlines for
the parties to follow. On November 27, 2018, the Court ordered an extension of the
deadlines for dispositive motions and motions in limine to February 1, 2019. On
February 1, 2019, the Khan Defendants filed multiple motions for partial summary
judgment as well as a motion in limine. At issue, however, are Plaintiffs’
dispositive motion and motions in limine and Bayhealth’s dispositive motion, none
of which were successfully e-filed on or before February 1.

Plaintiffs have asserted that they completed their various motions in limine
and motion for partial summary judgment by February 1, 2019, but that Ms. Vick
was unable to drive and hand-deliver the documents to the Court on that date due
to severe weather conditions and poor visibility. Plaintiffs state that “[i]n the face
of dangerous, life-threatening weather, and with a toddler present in the vehicle,
Plaintiff had to pull over and did not make it to Court prior to its closing.”
Additionally, Plaintiffs assert that Ms. Vick attempted other means of filing the
motions on time, including attempting to e-file them and emailing the
Prothonotary’s Office, but was unsuccessful in doing so. Ultimately, Plaintiffs
submitted their motions to the Prothonotary on the next business day, February 4,

2019, and the documents were e-filed by the Prothonotary on February 5, 2019.
On February 8, 2019, Plaintiffs wrote the Court requesting that their motions
be deemed timely and accepted for filing or, in the alternative, that the Court grant
an enlargement of time pursuant to Delaware Rule of Civil Procedure 6(b).
Defendants have opposed this request,* arguing that Rule 6(b) is inapplicable and
that they have been prejudiced by the late filings. Specifically, Defendants argue
that Plaintiffs’ late filings resulted in a shortened amount of time to respond to
Plaintiffs’ motions.’

Pursuant to Delaware Rule of Civil Procedure 6(b), “the Court for cause
shown may at any time in its discretion. . . (2) upon motion made after the
expiration of the specified period permit the act to be done where the failure to act
was the result of excusable neglect. . . .” Excusable neglect is “that neglect which
9910

might have been the act of a reasonably prudent person under the circumstances.

Mere negligence or carelessness, absent more, will not constitute excusable

* Bayhealth has joined in the Khan Defendants’ motion to strike.

* The Khan Defendants have raised two additional arguments in their brief, both of which are
easily disposed of. First, they argue that the Court should not reach the analysis required under
Rule 6(b), as Plaintiffs failed to file a formal motion for enlargement of time. The Court finds
this argument unconvincing. Plaintiffs submitted a letter to the Court, which was received on
February 8, 2019, requesting that the Court treat the electronic filings as timely filed or, in the
alternative, enlarge the time for filing. The Court finds this request to be sufficient to warrant an
analysis under Rule 6(b), particularly as Delaware public policy favors providing a litigant with
his or her day in court. The Khan Defendants also argue that Plaintiffs have repeatedly ignored
deadlines in this case, putting the trial date in jeopardy. This argument is similarly without merit
and is outside the scope of this motion. Defendants could have alerted the Court or filed motions
to strike if they felt they were unduly prejudiced by other untimely submissions.

* Ewing v. Bice, 2001 WL 880120, at *6 (Del. Super. July 25, 2001) (citing Cohen v.
Brandywine Raceway Assoc., 238 A.2d 320, 325 (Del. Super. 1968)).
neglect.'’ Determining the existence of excusable neglect is a matter of judicial
discretion.’ The Court should enlarge the time for filings if the movant has
demonstrated good cause, absent bad faith on the part of the movant and undue

> The Court should be liberal in granting

prejudice to the other parties.!
discretionary extensions, as Delaware public policy favors providing a litigant with
his or her day in court.'*

Here, the Court accepts Plaintiffs’ assertions that Ms. Vick made reasonable
efforts to file her motions on time but was unable to do so because of severe
weather conditions. Plaintiffs have demonstrated good cause for the late filings,
and no allegations of bad faith have been raised by Defendants or established
before the Court. In addition, the Court finds that Ms. Vick acted in good faith and
as a reasonably prudent person by attempting to e-file the motions and reaching out
to the Prothonotary’s Office for assistance.

Additionally, Defendants have failed to show how they have been unduly

prejudiced by the late submissions.'* Although the response time to Plaintiffs’

“Id.

* Ewing, 2001 WL 880120, at *6.

8 Id.

“ Td. See also Riffel v. Sarter, 2015 WL 2208809, at *2 (Del. Super. May 1, 2015) (holding that
considerations of judicial economy and a preference for resolving issues on their merits
warranted allowing plaintiffs late submissions of its dispositive motions).

* Cf. Ewing, 2001 WL 880120, at *7 (Court found that a four-day delay in service of process
was not unduly prejudicial to Defendant, particularly as the omission was not a result of bad
faith, but rather of oversight).

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motions in limine, which had been set in the revised scheduling order, was
shortened, Defendants have failed to articulate any specific prejudice other than the
shortened response period for the in limine motions. Defendants were provided
with a full two weeks to respond to the dispositive motions. Moreover, if
Defendants felt that there was insufficient time to respond to any of the motions,
they could have sought additional time from the Court, but they have failed to do
so. Therefore, the Khan Defendants’ motion to strike is hereby denied.

For the same reasons, the Court denies Plaintiffs’ motion to strike
Bayhealth’s motion for summary judgment. Bayhealth has demonstrated excusable
neglect for its late filing.’ Moreover, Plaintiffs admitted at the oral arguments on
March 15, 2019, that they were not prejudiced by the late submission.

B. Motions for Partial Summary Judgment on Informed Consent Claim

The Court will next examine the Khan Defendants’ motion and Plaintiffs’
cross-motion for partial summary judgment as to informed consent. Both parties

acknowledge that this issue is at the heart of Plaintiffs’ case."”

** Bayhealth established that its counsel’s staff submitted the motion to the e-file system on
February 1 and believed that it had been successfully e-filed, but that the motion was not
docketed due to an apparent technical malfunction of the e-filing system.

” The parties agreed on this point at the oral arguments held on March 15, 2019. Moreover,
Plaintiffs’ own expert has asserted that “this whole case actually resolves not necessarily in the
medical care but on the question of consent and performing a procedure without the consent of a
patient.” Dr. Berry Dep. 15:22-25. However, the Khan Defendants have not requested summary
judgment on all of Plaintiffs’ claims and conceded at oral argument that the issue of informed
consent is not the sole issue involved in the case.

11
Plaintiffs’ main contention in support of their motion is that Ms. Vick’s
refusal of the hysterectomy entitles her to a finding in her favor, irrespective of the
underlying circumstances and what Dr. Khan believed was necessary at that time.
Dr. Khan testified during her deposition that Ms. Vick refused to consent to the
hysterectomy, although she had earlier signed a written consent to the procedure in
the event of an emergency. Plaintiffs assert that this concession by Dr. Khan is
sufficient for a finding of summary judgment in their favor. Additionally, Plaintiffs
argue that Bayhealth is vicariously liable, as Bayhealth employees assisted Dr.
Khan in the performance of the hysterectomy despite the absence of consent from
Ms. Vick.

The Khan Defendants, on the other hand, argue that in order to make out a
prima facie case of informed consent under 18 Del. C. § 6852, Plaintiffs must
prove that the injury alleged involved a nonemergency treatment. According to the
Khan Defendants, because Delaware law does not permit recovery under an
emergency situation, and because there is no dispute among the experts that Ms.
Vick’s hemorrhage presented an emergency situation, not only must Plaintiffs’
motion for partial summary judgment as to informed consent be denied, but

Plaintiffs’ informed consent claim fails as a matter of law. The Court, having

12
reviewed the facts and law in question, agrees, and finds that judgment as a matter
of law on this issue must be granted in favor of the Khan Defendants. '®

Delaware law precludes a plaintiff from prevailing on an informed consent
claim where the treatment provided arose in the context of an emergency.’” 18 Del.
C. § 6852(a) is clear and unambiguous and provides that a plaintiff may not
recover damages based upon a lack of informed consent unless “(1) [t]he injury
alleged involved a nonemergency treatment, procedure or surgery; and (2) [t]he
injured party proved by a preponderance of evidence that the health-care provider
did not supply information regarding such treatment, procedure or surgery to the
extent customarily given to patients .. .” (emphasis supplied).

Additionally, the Delaware Supreme Court has held that Section 6852
should be read in conjunction with the definition of “informed consent” under

Section 6801(6).”° Consequently, in order to prevail on an informed consent claim,

** The Khan Defendants have made an additional argument pursuant to 16 Del. C. § 2510. They
argue that pursuant to this statute, Dr. Khan may not be subjected to civil liability, as she was
providing life-sustaining treatment in an emergency situation when the existence of an advanced
health-care directive was unknown. The Court need not address this issue, as it finds that 18 Del.
C. § 6852 compels judgment as a matter of law on the informed consent claim.

* 18 Del. C. § 6852. Cf Koch v. Cardiology Consultants, P.A., 2008 Del. Super. LEXIS 479, at
*4-5 (Del. Super. May 16, 2008) (noting that informed consent claim is allowed only for
nonemergency treatment, but denying summary judgment due to unresolved question as to
whether plaintiff had received emergency treatment).

* Spencer v. Goodill, 17 A.3d 552, 554 (Del. 2011). Under 18 Del. C. § 6801(6), “informed
consent” is defined as “the consent...given after the health care provider has informed the
patient...of the nature of the proposed procedure...and of the risks and alternatives to
treatment...which a reasonable patient would consider material to the decision whether or not to
undergo the treatment. . . .”

13
Plaintiffs must not only establish that the injury, in this case the unwanted
hysterectomy, involved a nonemergency procedure, but must also prove that “1)
the health care provider [Dr. Khan] failed to provide information about risks and
alternatives customarily given to patients; 2) a reasonable person would have
considered the undisclosed information material; and 3) plaintiff was injured by a
complication that should have been disclosed.””' A fourth requirement has also
been read into the statute whereby the plaintiff must establish “. . . that a
reasonable person would not have undergone the medical treatment if properly
informed of the risks and alternatives.”

Here, Plaintiffs have failed to make out a prima facie case under Section
6852 and, thus, the Court need not address the remaining elements under Section
6801(6). It is undisputed that Ms. Vick was in the midst of an emergency situation,
and that the hysterectomy was an emergency treatment provided to save Ms.
Vick’s life. The Khan Defendants have proffered four experts, all of whom have
asserted that Dr. Khan was presented with an emergency situation and that the

hysterectomy was an appropriate course of action given the circumstances.

Similarly, Plaintiffs’ sole expert, Dr. Berry, has admitted that Ms. Vick’s medical

** Goodill, 17 A.3d at 554.
? Id. at 555.

14
condition represented an emergency situation and that Dr. Khan performed the
hysterectomy to save Ms. Vick’s life:

Q: Would you agree that Ms. Vick had a massive or
severe postpartum hemorrhage?
A: Yes.”?

Q: Would you agree that given the amount of blood
products that she received, her fibrinogen level, her
platelet level and the amount of blood that she had lost
that her postpartum hemorrhage was an emergent
situation?

A: At the time, yes. Absolutely.”

Q: If Dr. Khan did not do the hysterectomy on Ms. Vick,
do you believe that it would have increased Ms. Vick’s
risk of death from bleeding?

A: I think that certainly some sort of surgical
intervention was required, whether it was hysterectomy
[sic] or not, if she did not do further surgical intervention
there’s a high probability that Ms. Vick could have died,
yes.”°

As there is no dispute among the parties that the hysterectomy was an

emergency treatment, the law is clear that Plaintiffs’ claim must fail under Section

* Dr. Berry Dep. 43:18-20.

* Dr. Berry Dep. 49:22-25, 50:1-2 (emphasis supplied).

* Dr. Berry Dep. 67:6-13. The Court notes that most of Dr. Berry’s assertions with regard to
informed consent pertain to a potential breach of the standard of care. Dr. Berry has asserted that
other surgical options or procedures were available to Dr. Khan besides performing the
hysterectomy, such as decreasing blood flow to the uterus with “uterine artery ligation or other
types of abdominal surgical procedures.” However, the question of whether Dr. Khan could or
should have chosen another response to the postpartum hemorrhage is irrelevant. Rather, as
stated above, the question presented under 18 Del. C. § 6852(a)(1) is whether Dr. Khan was
faced with a nonemergency treatment, procedure or surgery. As all parties have agreed that the
answer to this question is “no,” and that an emergency existed, the Court need not address what,
if any, other options were available to Dr. Khan.

15
6852(a). Therefore, judgment as a matter of law must be granted in favor of the
Khan Defendants on this issue.
C. The Khan Defendants’ Motion for Partial Summary Judgment on
Plaintiffs’ Medical Negligence Claims Regarding Performance
of Hysterectomy and Episiotomy
The Court will next examine the Khan Defendants’ motion for partial
summary judgment on Plaintiffs’ medical negligence claims as to the performance
of the hysterectomy and the episiotomy. The Khan Defendants’ primary argument
in support of their motion is that Dr. Berry testified that he was not critical of the
manner or technical performance of the hysterectomy or the episiotomy. Thus,
because Plaintiffs have failed to present any expert medical testimony to support
their assertions of medical negligence as to these procedures, Plaintiffs’ claims
allegedly fail as a matter of law.
The Delaware Medical Malpractice Act requires that, in the absence of

several exceptions that are inapplicable to this case,”° a plaintiff's claim for medical

malpractice must be supported by expert medical testimony.’’ 18 Del. C. § 6853

** Section 6853 provides that “a rebuttable inference that personal injury or death was caused by
negligence shall arise where evidence is presented that the personal injury or death occurred in
any 1 or more of the following circumstances: (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 the wrong organ, limb or part of the patient's body. Except as
otherwise provided herein, there shall be no inference or presumption of negligence on the part

of a health care provider.”
7 18 Del. C. § 6853.

16
provides that “[n]Jo liability shall be based upon asserted negligence unless expert
medical testimony is presented as to the alleged deviation from the applicable
standard of care in the specific circumstances of the case and as to the causation of
the alleged personal injury or death. . . .” Thus, Section 6853 specifically mandates
that before liability can be found in a medical malpractice action, the plaintiff bears
the initial burden of presenting expert medical testimony as to (1) the applicable
standard of care; (2) the alleged deviation from that standard; and (3) the causal
link between that deviation and the alleged injury.”* Additionally, an expert must
testify to a reasonable medical probability as to each of the above elements.”

Here, it is clear that Plaintiffs have failed to establish a prima facie case of
medical negligence as to the performance of the episiotomy or the hysterectomy.
First, with regard to the episiotomy, Dr. Berry testified that he is not critical of Dr.
Khan for performing the episiotomy or for the method in which the episiotomy was
performed or repaired, nor does he believe that the postpartum hemorrhage or

bleeding were caused by the performance of the episiotomy.’ Indeed, neither

* 18 Del. C. § 6853; Russell v. Kanaga, 571 A.2d 724, 732 (Del. Super. 1990); O’Donald v.
McConnell, 858 A.2d 960, at *2 (Del. 2004) (TABLE).

* See Floray v. State, 720 A.2d 1132, 1136 (Del. 1998) (“Generally when an expert offers a
medical opinion it should be stated in terms of ‘a reasonable medical probability’ or ‘a
reasonable medical certainty.’”) (citing Oxendine v. State, 528 A.2d 870, 873 (Del. 1987)).

* Dr. Berry was asked if he was critical of Dr. Khan for doing an episiotomy on Ms. Vick, to
which he responded “[n]o.” Dr. Berry Dep. 39:16-18. Dr. Berry was then asked if he was critical
of the method in which Dr. Khan performed the episiotomy, to which he also responded in the
negative. Dr. Berry Dep. 39:19-23. Lastly, Dr. Berry was asked if he believes the postpartum

17
Defendants’ experts nor Dr. Berry provided any negative testimony as to an
alleged deviation from the applicable standard of care in the performance of the
episiotomy, or a causal link between that deviation and the alleged injury.”!

Looking next to the performance of the hysterectomy, Plaintiffs have failed
to provide any expert medical testimony to establish liability under Section 6853.
Plaintiffs argue that the “technical manner” in which the hysterectomy was
performed is irrelevant, as Dr. Khan performed the procedure without consent.
However, this is not the law under Section 6853. Rather, as stated above, Plaintiffs
bear the initial burden of presenting expert medical testimony as to (1) the
applicable standard of care, (2) the alleged deviation from that standard, and (3) the
causal link between that deviation and the alleged injury. Here, it is clear that Dr.
Berry has not provided any testimony as to these three elements:

Q: Okay. So you have no criticism of the way that Dr. Khan

actually performed the hysterectomy. Is that fair?
A: That’s correct.*

hemorrhage was a result of the episiotomy, to which he responded “[n]o, I don’t think so.” Dr.
Berry Dep. 50:24-25, 51:1-4.

* Plaintiffs attempt to make an argument under the doctrine of res ipsa loquitur by asserting that
“(t]he fact that Defendants spent one hour repairing an episiotomy that reopened over a month
later speaks for itself. There is nothing ‘technical’ that needs to be analyzed and broken down by
a medical expert.” This is an incorrect reading of the law. While res ipsa loquitur may be used to
help make out a prima facie case for negligence, it may not be used as a substitute for expert
medical testimony under a claim for medical negligence. Williams v. Dyer, 1992 WL 240477, at
*2 (Del. Super. Aug. 12, 1992).

* Dr. Berry Dep. 86:21-23.

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Q: Are you going to testify that Dr. Khan negligently
performed the hysterectomy?

A: Only as it relates to the absence of consent.

Q: Sure. But in the actual technical performance of it?

A: In the technical performance of it, that [sic] there was no
negligence that I can see.

Moreover, Plaintiffs themselves admitted at the oral arguments held on
March 15, 2019, that they have no evidence of the hysterectomy’s being performed
negligently and that their argument pertains to a lack of consent. Therefore, as no
party has asserted any criticism of the manner in which Dr. Khan performed the
episiotomy or the hysterectomy, it is clear that there are no genuine issues of
material fact and that summary judgment must be granted in favor of the Khan

Defendants on these issues.

D. The Khan Defendants’ Motion for Partial Summary Judgment
on Punitive Damages

The Khan Defendants have filed a motion for partial summary judgment as
to Plaintiffs’ claims for punitive damages. Plaintiffs filed a complaint on
September 8, 2017, and an amended complaint on October 2, 2017, alleging, inter
alia, that Dr. Khan performed a hysterectomy without Ms. Vick’s consent. In both
complaints, Plaintiffs alleged multiple intentional torts, including a claim that Dr.

Khan intentionally inflicted emotional distress by “perform[ing] the unwanted

* Dr. Berry Dep. 119:12-20.

19
hysterectomy with malice, reckless indifference or wanton disregard.” On January
5, 2018, the Court dismissed the intentional tort claims. Because Plaintiffs’
intentional tort claims have been dismissed, any claims for punitive damages must
now arise from their medical malpractice claims.

On September 5, 2018, Ms. Vick was deposed. Ms. Vick testified that she
believes Dr. Khan “planned all of this” and that Dr. Khan stated on several
occasions that Ms. Vick was the “perfect candidate” for a hysterectomy and that
she (Dr. Khan) wanted to use this as a “teaching moment.” Plaintiffs also allege
that Dr. Khan forced Ms. Vick to sign the consent form prior to going into delivery
by stating that she would “let the baby die inside Plaintiff if she did not sign the
form.”

18 Del. C. § 6855 addresses punitive damages in the context of medical
negligence cases and states:
In any action for medical negligence, punitive damages may be
awarded only if it is found that the injury complained of was
maliciously intended or was the result of willful or wanton
misconduct by the health-care provider... Injuries shall not be
considered maliciously intended in instances in which
unforeseen damage or injury results from intended medication,

manipulation, surgery, treatment or the intended omission
thereof, administered or omitted without actual malice. . . .*4

* 18 Del. C. § 6855.

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In order to prevail on their claims for punitive damages, Plaintiffs must
demonstrate sufficient facts creating a plausible inference that there was medical
negligence with (1) actual malice on the part of the Khan Defendants or (2) willful
or wanton misconduct by the Khan Defendants. Mere statements or allegations by
Plaintiffs that the Khan Defendants were willful, wanton, or reckless, absent more,
are insufficient to support a claim under Section 6855.

While the question of punitive damages is typically reserved for the trier of
fact,*> the evidence must first invite a reasonable inference that the defendant’s
conduct rose to the necessary level in order to warrant a punitive damages award.*®
Pursuant to Section 6855, “very high levels of inappropriate actions are required to
warrant such a submission [of punitive damages to a jury]. Pursuant to this statute,
a failure to show that a doctor acted with deliberate indifference to the patient’s
health precludes jury consideration of punitive damages.””’

“[P]unitive damages serve a dual purpose — to punish wrongdoers and deter

others from similar conduct.”** Therefore, punitive damages may “be imposed only

after a close examination of whether the defendant’s conduct [was] ‘outrageous,’

* Carter v. Principe, 2019 WL 193138, at *2 (Del. Super. Jan. 15, 2019); Jardel Co., Inc. v.
Hughes, 523 A.2d 518, 527 (Del. 1987).

*° Solway v. Kent Diagnostic Radiology Associates, P_A., 2014 WL 703761, at *3 (Del. Super.
Feb. 18, 2014) (citing Jardel, 523 A.2d at 527).

*” Hartman v. Orthopaedic Associates of Southern Delaware, P.A.,2015 WL 995767, at *4 (Del.
Super. Feb. 27, 2015).

* Id. (citing Jardel, 523 A.2d at 529).

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because of ‘evil motive’ or ‘reckless indifference to the rights of others.’”’? An
award of punitive damages may not be granted for “[m]ere inadvertence, mistake
or errors of judgment which constitute mere negligence. . . It is not enough that a
decision be wrong. It must result from a conscious indifference to the decision’s
foreseeable effect.””° The trier of fact may draw all reasonable inferences from the
evidence to determine whether the alleged conduct by the defendants merits
awarding punitive damages."!

The Court has reviewed the parties’ submissions, as well as the evidence of
record, and finds that Plaintiffs have not offered any factual support to warrant the
submission of this case to a jury for the consideration of punitive damages.
Plaintiffs’ expert, Dr. Berry, has failed to identify a single act or omission
demonstrating malicious intent, evil motive, willful or wanton misconduct, or a
conscious disregard for Ms. Vick’s well-being. Rather, the only evidence of record
indicates that Dr. Khan was attempting to save Ms. Vick’s life as she was
hemorrhaging blood: (1) Dr. Berry testified that, in his opinion, Dr. Khan
performed the hysterectomy for no other motivation than to stop Ms. Vick’s post-

partum hemorrhage; (2) Dr. Berry stated that there was no evidence that Dr. Khan

°° Id.

*° Id.

“ Carter, 2019 WL 193138, at *2; Jardel, 523 A.2d at 527.
” Dr. Berry Dep. 86:24-25; 87:1-3.

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intentionally cut Ms. Vick’s fibroids in order to perform the hysterectomy;* and
(3) Dr. Berry testified that there was no evidence within the medical records to
suggest that Dr. Khan wanted to perform the hysterectomy as a “teaching
moment.”“* Indeed, Dr. Berry admitted that Dr. Khan was “. . . in a difficult
position to potentially lose a patient life [sic] or perform a procedure that the
patient is refusing.”

Dr. Berry has also raised the issue of “criminal battery,” but has testified that
the entire basis for such a claim would be the concept of lack of informed consent,
which has already been addressed and rejected by this Court.*° Therefore, the Court
finds that there is no evidence demonstrating malicious intent or willful or wanton
misconduct on the part of the Khan Defendants for a jury to consider. As such, the
Court must grant the Khan Defendants’ motion for partial summary judgment as to
punitive damages.

E. Bayhealth’s Motion for Summary Judgment
Lastly, the Court will address Bayhealth’s motion for summary judgment.

Bayhealth lays out three arguments in its motion: (1) Plaintiffs cannot prove that an

agency relationship existed between Dr. Khan and Bayhealth or establish that Dr.

“ Dr. Berry Dep. 51:11-24 and 52:1-15.

“ Dr. Berry Dep. 56:6-14.

* Dr. Berry Dep. 69:14-16.

** Dr. Berry Dep. 84:11-16; 85:9-25; 86:2-4.

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Khan was acting as an agent and/or employee of Bayhealth; (2) Plaintiffs’ claim as
to lack of informed consent is not supported by competent expert medical opinion;
and (3) Plaintiffs cannot prevail as to their claim for punitive damages. As the
Court has already determined that Plaintiffs’ informed consent claim fails, the
Court need not address Bayhealth’s second argument.

According to Bayhealth, Plaintiffs have provided no evidence that Bayhealth
exercised control over Dr. Khan or that Dr. Khan is an employee or agent of
Bayhealth. Bayhealth asserts that Dr. Khan is not an employee or agent of
Bayhealth, but merely has privileges at Bayhealth, which is insufficient to establish
an agency relationship, and therefore Bayhealth cannot be found vicariously liable
for Dr. Khan’s acts or omissions given the undisputed facts of record.

In opposition to Bayhealth’s motion, Plaintiffs argue that Bayhealth held out
Dr. Khan as an agent of the hospital and that Ms. Vick reasonably relied on that
representation in seeking and obtaining treatment. Plaintiffs assert that Dr. Khan
had an employee or agency relationship with Bayhealth and that Dr. Khan not only
performed the procedures at Bayhealth’s facilities, but also supervised and
instructed others employed there. Plaintiffs argue that “[a]t the instructions of Dr.
Khan, Bayhealth/Kent employees strapped Plaintiff's legs down to facilitate the

unwanted procedure” and that employees of Bayhealth assisted Dr. Khan in the

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acts and omissions involving Ms. Vick, including ignoring her pleas for help and
injuring her when placing her back on the operating table.

Whether Bayhealth may be found liable for the allegedly negligent conduct
of the Khan Defendants depends upon whether an actual agency or apparent
agency relationship may be established between Dr. Khan and Bayhealth at the
time of the alleged negligence.

Looking first to the issue of whether an actual agency relationship existed,
the plaintiff must demonstrate that the employer/hospital controlled or had the right
to control the conduct of the servant/physician in the performance of the
servant/physician's work.*’ It is well settled in Delaware that general agency

48 “Where there is sufficient evidence

principles apply to hospitals and physicians.
establishing the requisite right of control, the trier of fact may find that the
physician is an agent of the hospital and thus impose vicarious liability on the
hospital.””” “However, if the requisite right of control does not exist, the physician

is considered an independent contractor and the hospital is generally not liable for

the negligence of an independent contractor.”*’ Thus, the level of control a hospital

” Dunn v. Atlantic Surgical Associates, LLC, 2007 WL 1784093, at *1 (Del. Super. Apr. 27,
2007) (citing Fulton v. Quinn, 1993 WL 19674, at *9 (Del. Super. Jan. 12, 1993)).

“8 Id.

” Id. at *9-10.

° Id. at *10.

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exerts over a physician is a determinative factor with regard to a physician's
classification.”

A basic tenet of agency law is that “[i]f the principal assumes the right to
control the time, manner and method of executing the work, as distinguished from
the right merely to require certain definite results in conformity to the contract, a
master/servant type of agency relationship has been created.””’ In the instant case,
the Court has not been presented with any facts to support the notion that
Bayhealth controlled or had the right to control the conduct of Dr. Khan in the
performance of her work. Plaintiffs have not provided any evidence that Dr. Khan
maintained an office at Kent General Hospital or that she received a salary from
Bayhealth. Moreover, Dr. Khan has testified that she is in private practice and does
not have any other associates, nor does anyone have an interest or own shares in
her business. Thus, there is no evidence to support an “actual agency” relationship.

While a hospital is generally not liable for the actions of physicians who are
independent contractors, there is an exception to this rule. Under this exception,
known as the “apparent agency” theory, a physician who is an independent

contractor may, nonetheless, be considered an agent of the hospital with respect to

51 I/d.
” Fisher vy. Townsends, Inc., 695 A.2d 53, 59 (Del. 1997).

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a patient.’ The exception is very fact specific and has been articulated as follows:
“One who represents that another is his servant or agent and thereby causes a third
person justifiably to rely upon the care or skill of such apparent agent is subject to
liability to the third person for harm caused [by] a lack of care or skill of the one
appearing to be a servant or other agent as if he were such.”

In order to establish an “apparent agency” relationship between Dr. Khan
and Bayhealth, the Plaintiffs must first establish that Bayhealth represented or held
out Dr. Khan as an agent to Ms. Vick and, secondly, that Ms. Vick reasonably
relied on that representation.°> The burden is on the plaintiff to establish such a
relationship, and the Court fails to see any evidence in the record to support this
assertion.

As the Delaware Supreme Court explained in Vanaman v. Milford Memorial
Hospital, Inc.,°° there are two fact situations in which the law is clear surrounding
an agency relationship in a medical malpractice suit:

The first is this: a sick or injured person consults his own
doctor for diagnosis and treatment; the doctor recommends
hospital care; thereafter the doctor treats him in the hospital; the

patient pays all expenses, including fees directly to the doctor.
In this situation the law commonly regards the doctor as an

* Fulton, 1993 WL 19674, at *4 (citing Vanaman, 272 A.2d at 722).
* Id.; see Restatement (Second) of Agency § 267.

°° Dunn, 2007 WL 1784093, at *3.

°° 272 A.2d 718 (Del. 1970).

27
independent contractor in his relationship to the hospital and to
the patient. The hospital is not liable for malpractice by the doctor.

The second, at the other end of the spectrum, is this: a sick or
injured person is taken directly to a hospital; his problem is
diagnosed and he is there treated by a doctor employed by the
hospital (as an intern, resident, or in some other capacity). The
hospital is liable for malpractice by that doctor under the
doctrine of Respondeat superior [sic].*”

In this case, Dr. Khan’s relationship to Bayhealth clearly falls within the
purview of the first scenario highlighted above. Bayhealth asserts that Ms. Vick
had thirteen visits in Dr. Khan’s office between December 2014 and June 2015, at
which point Dr. Khan directed Ms. Vick to go from her office to be admitted to
Kent General Hospital. Dr. Khan then treated Ms. Vick at Kent General Hospital,
where Dr. Khan delivered Ms. Vick’s child and provided postpartum surgical care.
Plaintiffs have not provided any facts or evidence to the contrary. These facts
demonstrate that Dr. Khan had privileges at Bayhealth, and was not acting as an
agent or apparent agent of Bayhealth.

Dr. Berry’s testimony also establishes that Plaintiffs have no viable claims
against Bayhealth due to the actions of anyone other than Dr. Khan—i.e., due to

the actions of any actual or apparent agent of Bayhealth. When asked whether he

would be offering an expert opinion at trial critical of “nursing or anyone other

57 Vanaman, 272 A.2d at 720.

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than Dr. Khan,” Dr. Berry responded that any such opinion would be based on the
allegation of lack of informed consent.°* When asked whether he had any other
criticisms of anyone other than Dr. Khan, Dr. Berry stated “[n]o.”°’ This Court has
already determined that Plaintiffs’ informed consent claim fails because of the
emergency situation faced by Dr. Khan (and by any hospital staff assisting her and
helping to treat Ms. Vick). Therefore, Plaintiffs are unable to advance any medical
malpractice claims against Bayhealth.

Finally, because Plaintiffs are unable to pursue any medical malpractice
claims against Bayhealth, Plaintiffs’ punitive damages claims against Bayhealth
necessarily fall short as well. Accordingly, Bayhealth is entitled to judgment as a
matter of law on all of Plaintiffs’ claims against it.

IV. CONCLUSION

WHEREFORE, for the foregoing reasons, (1) the Khan Defendants’ and
Plaintiffs’ motions to strike are both DENIED; (2) the Khan Defendants’ motion
for partial summary judgment as to informed consent is GRANTED, and
Plaintiffs’ cross-motion for partial summary judgment on that issue is DENIED;
(3) the Khan Defendants’ motion for partial summary judgment on Plaintiffs’

medical negligence claims regarding performance of the hysterectomy and the

** Dr. Berry Dep. 96:15-25.
*° Dr. Berry Dep. 99:8-13.

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episiotomy is GRANTED; (4) the Khan Defendants’ motion for partial summary
judgment on Plaintiffs’ punitive damages claims is GRANTED; and (5)
Bayhealth’s motion for summary judgment is GRANTED.

IT IS SO ORDERED.

/s/ Noel Eason Primos
Judge

NEP/dsc
Via File & ServeXpress and U.S. Mail
oc: Prothonotary

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