Tiffany M. Shrenk, Esq. MacElree Harvey, Ltd. Attorney for
F. Battaglia, Esq. Biggs and Battaglia Attorney for Defendant
Bradley J. Goewert, Esq. Thomas J. Marcoz, Jr., Esq. Marshall
Dennehey Warner Coleman & Goggin Attorneys for Defendant
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.
and Procedural Background
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
Plaintiffs 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.
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
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).
III of the Complaint states that: "At all times relevant
hereto, Dr. Ogan was an employee and/or agent of
[CPS]." Dr. Ogan allegedly used a prescription pad
when writing prescriptions to Ms. Ballas that bore CPS's
name and address. The samples of the Brintellix provided to
Ms. Ballas before her death were CPS samples. 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." CPS "knew or should have known that
Dr. Ogan provided prescription medications to individuals,
including Decedent, in violation of the standards of care
and/or the applicable statutory duties."
CPS's Motion was filed on October 24, 2016. Plaintiff
filed a brief in opposition to the Motion on December 9,
2016. CPS filed a reply brief on December 21, 2016. Oral
arguments were heard on January 9, 2017. The Motion is now
ripe for decision.
moves for dismissal under Superior Court Rule 12(b)(6). A
motion to dismiss generally considers only that which is
found in the complaint. In this case, in support of its Motion
to Dismiss, CPS asks the Court to consider three sets of
documents outside the Complaint: (1) two 1099s CPS issued to
the IRS in 1999 and 2002 classifying Dr. Ogan as an
independent contractor; (2) a copy of a 1996 phonebook that
lists Dr. Ogan's address as his Trolley Square office;
and (3) a 1996 Delaware business license for Dr. Ogan's
practice at the same address.
extrinsic evidence is considered, the Court usually converts
the motion to a motion for summary judgment. If the Court does
convert the motion, the Court should advise the parties and
give a reasonable opportunity to present pertinent material
according to Rule 56. However, it does not follow that the
"floodgates to discovery" are open simply because
an extrinsic document is presented on a motion to
are two exceptions to the general rule regarding extrinsic
evidence on a motion to dismiss. First, "where an
extrinsic document is integral to a plaintiffs claim and is
incorporated into the complaint by reference, " the
Court may consider this in the motion. Second,
"where the document is not being relied upon to prove
the truth of its contents, " then the Court may likewise
consider this document on a motion to dismiss. Nevertheless,
"The trial court may also take judicial notice of
matters that are not subject to reasonable
the IRS documents contain a classification of Dr. Ogan's
relationship with CPS made solely by CPS. They are presented
to prove the truth of the matter asserted: that Dr. Ogan was
an independent contractor. As such, they do not fit into
either of the two above exceptions. Further, there is no
per se rule to determine agency (see
infra), and the parties' understanding of the
nature of the putative agency relationship is only one
sub-factor of many non-exclusive factors. Because the
IRS documents are open to reasonable disagreement, they are
not susceptible to judicial notice. Therefore, the Court will
not consider them on the Motion to Dismiss.
Court declines to convert the Motion to one for summary
judgment based on the presentation of the extrinsic
documents. Discovery has only just begun in this case and it
would be premature to convert the Motion to a summary
judgment motion. Thus, the Motion will remain one to dismiss
the Complaint for failure to state a claim upon which relief
may be granted.
Rule 12(b)(6), all well-pleaded allegations in the complaint
must be accepted as true. Even vague allegations are
considered well-pleaded if they give the opposing party
notice of a claim. The Court must draw all reasonable
inferences in favor of the non-moving party; however, it
will not "accept conclusory allegations unsupported by
specific facts, " nor will it "draw unreasonable
inferences in favor of the non-moving
party." Dismissal of a complaint under Rule
12(b)(6) must be denied if the non-moving party could recover
under "any reasonably conceivable set of circumstances
susceptible of proof under the complaint."
Vicarious Liability Claim
argues that dismissal is appropriate because discovery into
Dr. Ogan's relationship with CPS would not reveal that
Dr. Ogan was anything more than an independent contractor.
a principal-agent relationship exists is determined on a
case-by-case basis. "The Delaware courts have
'recognize[d] that no single rule could be laid down to
determine whether a given relationship is that of [a servant
to a master] as distinguished from an independent
contractor." Instead, that determination is typically
left to the factfinder. Delaware courts look to the
Restatement (Second) of Agency § ...