Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Benson v. Mow

Superior Court of Delaware, Kent

December 31, 2013

REBECCA BENSON, Plaintiff,
v.
EDWIN M. MOW, D.P.M., and BAYHEALTH MEDICAL CENTER, INC., Defendants.

Submitted: October 24, 2013

Upon Consideration of Defendant Bayhealth Medical Center, Inc.'s Motion to Dismiss DENIED

Upon Consideration of Plaintiff's Motion for Leave to File First Amended Complaint GRANTED

H. Cubbage Brown, Jr., Esquire, Brown Shiels & Beauregard, LLC, Dover, Delaware for Plaintiff.

James E. Drnec, Esquire, and Melony R. Anderson, Esquire, Balick & Balick, LLC, Wilmington, Delaware for Defendant Bayhealth Medical Center, Inc.

ORDER

Robert B. Young, J.

SUMMARY

Pursuant to Del. Super. Ct. Civ. R. 12 (b)(6), Defendant Bayhealth Medical Center, Inc. ("Bayhealth" or "Movant") moves the Court to dismiss the Original Complaint filed by Rebecca Benson ("Plaintiff") relative to the claims against Bayhealth on the ground that it fails to state a claim against Bayhealth upon which relief may be granted. While the present Complaint allegations fail, as Movant asserts, to state a claim against Bayhealth, Plaintiff moves the Court for Leave to File an Amended Complaint addressing the deficiencies that Bayhealth raises concerning the Original Complaint. If the requested amendment is permitted, the Court must then decide whether the Plaintiff's new allegations, that the doctor and other employees who performed the surgery were agents of Bayhealth, can survive Bayhealth's Motion to Dismiss. In the interests of justice, recognizing the strong policy favoring a decision on the merits on the claim, Plaintiff's Motion to Amend is GRANTED. Based on the allegation that Edwin M. Mow, D.P.M. ("Dr. Mow") was assisted by several Bayhealth employees during the allegedly negligent surgery, discovery may establish agency, enabling the Plaintiff to recover under a reasonably conceivable set of circumstances. The issue of whether an agency relationship exists between a doctor and a hospital is typically a question of fact for a jury to decide. Therefore, Bayhealth's Motion to Dismiss is DENIED.

STATUS OF THE CASE AND STATEMENT OF FACTS

Plaintiff filed her Original Complaint against Dr. Mow and Bayhealth on March 31, 2013. The Original Complaint alleges that Dr. Mow negligently performed surgery on Plaintiff in March 2011. According to the Original Complaint, Dr. Mow is employed at Mow Foot and Ankle Center in Milford, Delaware. Plaintiff's surgery was performed at Bayhealth's Milford Memorial Hospital. On July 12, 2013, Bayhealth filed the instant Motion to Dismiss. On July 26, 2013, the Plaintiff filed a Response to Bayhealth's Motion to Dismiss and a Motion for Leave to File First Amended Complaint. On September 10, Bayhealth filed its Opposition to Plaintiff's Motion for Leave to File Amended Complaint.

Dr. Mow, a licensed podiatrist, operated a medical office located in Milford, Delaware, where he specialized in the diagnosis and treatment of foot injuries. On March 31, 2011, Plaintiff underwent surgery performed by Dr. Mow to correct two conditions: 1) a symptomatic and high degree of right foot hallox valgus deformity with a high degree of metatarsal primus varus, deformity of the first metatarsal; and 2) a symptomatic and rigidly contracted, painful right second hammer toe deformity. The procedures were performed by Dr. Mow at Bayhealth Medical Center, Milford Memorial Hospital.

The surgery to correct the second hammer toe deformity was not successful. After this surgery, Plaintiff continued to suffer pain and visible deformity of the toe. Plaintiff's Original Complaint alleges that Dr. Mow failed to address or respond to Plaintiff's injury adequately, which prolonged her recovery and subjected her to additional months of pain and suffering. After following instructions by Dr. Mow to no avail over the course of five months, on September 12, 2011, Plaintiff went to Dr. Harry S. Tam ("Dr. Tam") of Dover Podiatric Medicine. On October 23, 2011, Dr. Tam performed a second surgery for Plaintiff, a revisional bunion and extensor tendon repair of the right foot, which was allegedly designed to correct the problem that was not adequately addressed by Dr. Mow previously.

STANDARD OF REVIEW

"A motion to dismiss under [Superior Court Civil] Rule 12(b)(6) presents the question of 'whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.'"[1] "When considering a motion to dismiss, the Court must read the complaint generously, accept all well-[pled] allegations as true, and construe them in a light most favorable to the plaintiff."[2] "A complaint is 'well-plead' if it puts the opposing party on notice of the claim being brought against it. Dismissal is warranted only when 'under no ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.