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Newborn v. Christiana Psychiatric Services P.A.

Superior Court of Delaware

January 25, 2017

Christiana Psychiatric Services, P.A., et al.

          Tiffany M. Shrenk, Esq. MacElree Harvey, Ltd. Attorney for Plaintiff

          Victor F. Battaglia, Esq. Biggs and Battaglia Attorney for Defendant CPS

          Bradley J. Goewert, Esq. Thomas J. Marcoz, Jr., Esq. Marshall Dennehey Warner Coleman & Goggin Attorneys for Defendant Estate

         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 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.

         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]."[1] 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 "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."[5]

          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.

         Standard of Review

         Defendant moves for dismissal under Superior Court Rule 12(b)(6). A motion to dismiss generally considers only that which is found in the complaint.[6] 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.

         Where extrinsic evidence is considered, the Court usually converts the motion to a motion for summary judgment.[7] 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.[8] However, it does not follow that the "floodgates to discovery" are open simply because an extrinsic document is presented on a motion to dismiss.[9]

         There are two exceptions to the general rule regarding extrinsic evidence on a motion to dismiss.[10] 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.[11] 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.[12] Nevertheless, "The trial court may also take judicial notice of matters that are not subject to reasonable dispute."[13]

         Here, 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.[14] 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.[15]

         The 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.

         Under Rule 12(b)(6), all well-pleaded allegations in the complaint must be accepted as true.[16] Even vague allegations are considered well-pleaded if they give the opposing party notice of a claim.[17] The Court must draw all reasonable inferences in favor of the non-moving party;[18] however, it will not "accept conclusory allegations unsupported by specific facts, " nor will it "draw unreasonable inferences in favor of the non-moving party."[19] 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."[20]


         Plaintiffs Vicarious Liability Claim

         CPS 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.

         Whether a principal-agent relationship exists is determined on a case-by-case basis.[21] "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."[22] Instead, that determination is typically left to the factfinder.[23] Delaware courts look to the Restatement (Second) of Agency ยง ...

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