Submitted: June 14, 2018
EASON PRIMOS JUDGE.
the Court are the appeal of Plaintiffs Stacia and Chadwick
Vick (hereinafter "Plaintiffs") from the
Commissioner's order denying their motion to amend the
complaint, and the responses of Defendants Bayhealth Inc.;
Bayhealth Medical Center, Inc.; Kent General Hospital;
Nasreen Khan, DO; and Khan Obstetrics and Gynecology
Associates, PA (hereinafter "Defendants").
facts as alleged by Plaintiffs and the procedural history as
reflected by the record are, briefly, as
follows. On June 11, 2015, Ms. Vick went to Kent
General Hospital to have Dr. Khan deliver her baby. Before
delivery, Dr. Khan performed an episiotomy on Ms. Vick, but
failed to properly close the laceration. Dr. Khan also
removed and collected the umbilical cord and gave Ms. Vick
blood transfusions against her wishes. On June 12, Dr. Khan
performed a hysterectomy on Ms. Vick without her consent and
against her express wishes. Ms. Vick was restrained against
her will during the procedure. At one point Ms. Vick
attempted to flee the operating room but was restrained and
forcibly returned to the table, resulting in injury.
Plaintiffs filed their complaint on September 6, 2017.
filed a motion to dismiss, arguing that many of the counts
alleged in the complaint were time-barred. The Court granted
the motion, and in a January 5, 2018 order, dismissed counts
III - VIII of Plaintiffs' complaint: those counts alleged
various tortious actions on Defendants' part, including
assault, false imprisonment, intentional and negligent
infliction of emotional distress, negligence, and fraud. The
Court ruled that counts I and II were not time barred,
reasoning that they were medical negligence claims and that
Plaintiffs had filed a proper notice of intent, which,
pursuant to 18 Del. C. § 6856, provided a
90-day tolling period.
3, Plaintiffs filed a 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 counts 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 already rejected
Plaintiffs' arguments that those claims were proper and
had dismissed them.
Court Civil Rule 15 provides that "a party may amend the
party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely given
when justice so requires." An Order of the Commissioner
on a non-case-dispositive matter shall not be disturbed by
this Court on appeal unless the order is "based upon
findings of fact that are clearly erroneous, or is contrary
to law, or is an abuse of discretion." Orders of the
Commissioner on case-dispositive matters are reviewed by this
Court de novo  The Commissioner's order in this
case is non case-dispositive, as Plaintiffs' claims under
Count I and II remain despite the Commissioner's decision
on the motion.
as stated earlier, on January 5, 2018, this Court dismissed
Plaintiffs' tort claims as time barred. Now, Plaintiffs
seek to amend the complaint to add claims for "Medical
Malpractice by fraud, conversion, assault and battery, false
imprisonment," etc. The Court views the intended
amendment as an improper attempt to circumvent this
Court's order and the statute of limitations by
re-alleging claims that were previously dismissed. Justice
does not require that the orders of this Court and the
statutes of the Delaware legislature go unenforced. The Court
therefore finds that the Commissioner's order was not
based upon erroneous findings of fact, was not contrary to
law, and contained no abuse of discretion.
WHEREFORE, the order of Commissioner is AFFIRMED.
 These facts have not been established
but, as indicated, are allegations at ...