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Vick v. Khan

Superior Court of Delaware, Kent

May 17, 2019


          Submitted: March 15, 2019

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

         Upon Plaintiffs' Motion to Strike Bay health'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 Bay health'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.



         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.


         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 - VIII 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.


         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.[1] 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.[2] Further, the Court must view all factual inferences in a light most favorable to the non-moving party.[3] 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.[4] 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."[5]

         The filing of cross-motions for summary judgment does not alter the summary judgment standard, [6] 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.[7]


         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.

         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, [8] 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.[9]

         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 might have been the act of a reasonably prudent person under the circumstances."[10]Mere negligence or carelessness, absent more, will not constitute excusable neglect.[11] Determining the existence of excusable neglect is a matter of judicial discretion.[12] 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 prejudice to the other parties.[13] The Court should be liberal in granting discretionary extensions, as Delaware public policy favors providing a litigant with his or her day in court.[14]

         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.[15] Although the response time to Plaintiffs' 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.[16] 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.[17]

         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 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.[18]

         Delaware law precludes a plaintiff from prevailing on an informed consent claim where the treatment provided arose in the context of an emergency.[19] 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).[20] Consequently, in order to prevail on an informed consent claim, 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."[21] 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."[22]

         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 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.[23]
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 ...

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