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.

Vick v. Khan

Superior Court of Delaware, Kent

November 15, 2019

STACIA VICK and CHAD WICK VICK, Plaintiffs,
v.
DR. NASREEN KHAN and KHAN OBSTETRICS AND GYNECOLOGY ASSOCIATES, P.A., Defendants.

          Submitted: October 25, 2019

         Upon Former Defendants Bayhealth, Inc., Bayhealth Medical Center, Inc., and Kent General Hospital's Motion in Limine to Preclude Any Evidence Regarding Negligent Supervision and Training DENIED AS MOOT

         Upon Former Defendants Bayhealth, Inc., Bayhealth Medical Center, Inc., and Kent General Hospital's Motion in Limine to Preclude Expert Testimony from David Berry, M.D., Regarding Medical Ethics DENIED AS MOOT

         Upon Defendants Nasreen Khan, DO, and Khan Obstetrics and Gynecology Associates, PA's (Improperly named as Khan and Associates, PA), Motion in Limine to Preclude Testimony and Evidence Unsupported by a Medical ExpertCausation Opinion GRANTED

         Upon Plaintiffs' Motion to Preclude Bayhealth from Treating Danielle Teal as a Client Instead of a Witness DENIED AS MOOT

         Upon Plaintiffs' Motion to Limit the Number of Defendants' Peremptory Challenges DENIED AS MOOT

         Upon Plaintiffs' Motion to Preclude Evidence of Plaintiff Stacia Vick's Mental State or Incompetency DENIED AS MOOT

         Upon Plaintiffs'Motion to Preclude Evidence that Plaintiff Stacia Vick Assumed the Risk or Gave Implied Consent for the Hysterectomy DENIED AS MOOT

         Upon Plaintiffs'Motion to Preclude Evidence Regarding Plaintiff Stacia Vick's Immigration Status and Employment Status, and Either Plaintiffs Receipt of Government Benefits DENIED AS MOOT

         Upon Plaintiffs' Motion to Limit the Number of Defendants' Experts to One Each DENIED

         Upon Plaintiffs' Motion to Preclude Evidence Regarding the Care and Treatment of Plaintiffs'Minor Child DENIED

         Upon Plaintiffs'Motion to Preclude Questioning Regarding Privileged Communications Between Plaintiffs DEFERRED

         Upon Plaintiffs' Daubert Motion and Motion in Limine Regarding David Schwartz, M.D. DENIED

         Upon Plaintiffs' Daubert Motion and Motion in Limine Regarding Daniel Small, M.D. DENIED

          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.

          MEMORANDUM OPINION AND ORDER

          Noel Eason Primos, J.

         Before the Court are several motions in limine including (1) a motion to preclude any evidence regarding negligent supervision and training filed by Defendants Bayhealth Inc., Bayhealth Medical Center, Inc., and Kent General Hospital (hereinafter collectively "Bayhealth"); (2) a motion to preclude expert testimony from Dr. Berry regarding the issue of medical ethics filed by Bayhealth and joined in by Defendants Nasreen Khan, DO, and Khan Obstetrics and Gynecology Associates, PA (hereinafter collectively the "Khan Defendants"); (3) a motion to preclude testimony and evidence unsupported by a medical expert causation opinion filed by the Khan Defendants; and ten (10) motions in limine filed by Plaintiffs Stacia Vick and Chadwick Vick (hereinafter "Plaintiffs"), which will be discussed in more detail below.

         This opinion sets forth the Court's decision on the motions following oral argument on October 25, 2019. The Court refers the parties to its May 17, 2019, Opinion and Order[1] on the dispositive motions and motions to strike for a recitation of the facts and procedural history. The Court also refers the parties to that decision, as Bayhealth was dismissed from the ensuing litigation upon a finding by this Court that Plaintiffs are unable to demonstrate that Dr. Khan was acting as an agent or apparent agent of Bayhealth, or advance any medical malpractice claims against Bayhealth. Therefore, any motions directed to Bayhealth, including Plaintiffs' motion to preclude Bayhealth from treating Danielle Teal as a client, or any motions filed by Bayhealth and not joined in by the Khan Defendants, such as Bayhealth's motion to preclude evidence regarding negligent supervision or training, shall be denied as moot.

         The Court will begin its analysis by examining the motions in limine filed by Bayhealth and the Khan Defendants. The Court will then address Plaintiffs' various motions in limine beginning with the motions in limine that are now moot followed by Plaintiffs' remaining motions.

         A. Bayhealth's Motions in Limine

         Bayhealth has filed two motions in limine, (1) to preclude any evidence regarding negligent supervision and training, and (2) to preclude expert testimony from Dr. Berry regarding the issue of medical ethics. Both of these motions should be denied as moot.

         Bayhealth's motion regarding negligent supervision and training, as noted supra, will be denied as moot because Bayhealth is no longer a party.

         As to Bayhealth's motion to preclude expert testimony from Dr. Berry regarding the issue of medical ethics, in which the Khan Defendants joined, any potential issue regarding medical ethics pertains to Plaintiffs' original claim for lack of informed consent. When Dr. Berry himself addressed the issue of medical ethics in his deposition, he framed it in terms of Dr. Khan's alleged failure to obtain Ms. Vick's consent before performing the hysterectomy.[2] Dr. Berry also stated that he was "probably not the expert on that particular topic, "[3] thus indicating that he would likely not have qualified as an expert in the field of medical ethics. As the Court has entered summary judgment on the informed consent claim, the motion is denied as moot.

         B. The Khan Defendants' Motion in Limine

         The Khan Defendants have filed a motion to preclude any testimony and evidence unsupported by a medical expert, specifically regarding Ms. Vick's incontinence or bowels. The Khan Defendants argue that in order for Plaintiffs to support a claim for medical negligence relating to Ms. Vick's bowel incontinence, dysfunction, and injury, Plaintiffs are required to present expert medical testimony that Dr. Khan deviated from the standard of care in a manner that proximately caused those conditions. As Plaintiffs have failed to do so, the Khan Defendants' motion will be granted.

         On May 7, 2018, Plaintiff provided answers to the Khan Defendants' written discovery requests. Plaintiffs stated that Ms. Vick could not control her bowels following the performance of the hysterectomy performed by Dr. Khan, and that Ms. Vick still did not have full control over her bowels. On September 5, 2018, Ms. Vick was deposed and testified that she suffered from incontinence and inability to control her bowels and alleged that this was a result of negligence on the part of Dr. Khan.

         The Delaware Medical Malpractice Act requires that a plaintiffs claim for medical malpractice be supported by expert medical testimony. 18 Del. C. § 6853(e) provides that "[n]o liability shall be based upon asserted negligence unless expert medical testimony is presented as to the alleged deviation from the applicable standard of care in the specific circumstances of the case and as to the causation of the alleged personal injury or death. . . ."[4] Thus, Section 6853 specifically mandates that before liability can be found in a medical malpractice action, the plaintiff bears the initial burden of presenting expert medical testimony as to (1) the applicable standard of care; (2) the alleged deviation from that standard; and (3) the causal link between that deviation and the alleged injury.[5] Additionally, an expert must testify to a reasonable medical probability as to each of the above elements.[6]

         As previously held in the Court's May 17, 2019, Opinion and Order, Plaintiffs have failed to establish a prima facie case of medical negligence as to the performance of the hysterectomy. Moreover, Plaintiffs have not provided any evidence or testimony regarding Ms. Vick's incontinence, bowel injury, or bowel dysfunction, including her claims that her bowel was injured during the hysterectomy or that she had incontinence or bowel dysfunction related to the hysterectomy. In fact, Plaintiffs sole expert, Dr. Berry, has stated that he will not be offering any testimony that Ms. Vick had any incontinence or bowel dysfunction related to the hysterectomy: Q: Now, a hysterectomy does not involve surgery on the bowel, does it? A: Only inadvertently as a complication you could injure the bowel, but there's no intention and no goal to - it's actually the goal to keep the bowel out of your operative field.

Q: . . . [H]ave you seen any indication that the bowel was injured during the course of Dr. Khan's procedure? A: No.
Q: Are you gonna be offering any opinion at trial that Ms. Vick has incontinence related to the hysterectomy? A: No.
Q: Are you gonna be offering any opinion at trial that Ms. Vick has any type of bowel dysfunction related to the hysterectomy? A: Not that I've been ...

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.