lN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STACIA VICK, CHADWICK VICK

Plaintiffs,
C.A. No. Kl7C-O9-007 NEP

v.
ln and For Kent County

KHAN AND ASSOCIATES PA,
BAYHEALTH INC.,

BAYHEALTH MEDICAL CENTER,
and KENT GENERAL HOSPITAL.

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)
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§
DR. NASREEN KHAN, )
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Defendants. )

Submitted: June l4, 2018
Decided: August 22, 2018

ORDER

Before 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”).

The facts as alleged by Plaintiffs and the procedural history as reflected by the
record are, briefly, as follows.1 On June ll, 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

 

l These facts have not been established but, as indicated, are allegations at this point.

Stacia Vick, et al v. Dr. Nasreen Khan, et al
K18C-09-007 NEP
August 22, 2018

against her Wishes. On June l2, 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.

Defendants 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 lll - Vlll 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 l and ll 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.

On May 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.

Superior 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,

2

$tacla \/ick, et al v. Dr. Nasreen Khan, et al
K18C-09-007 NEP
August 22, 2018

or is an abuse of discretion.”2 Orders of the Commissioner on case-dispositive
matters are reviewed by this Court de novo.3 The Commissioner’s order in this case
is non case-dispositive, as Plaintiffs’ claims under Count I and ll remain despite the
Commissioner’s decision on the motion.4

Here, 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.5

 

2 Super. Ct. Civ. R. 135(a)(3)(iv).

3 Super. Ct. Civ. R. 135(a)(4)(iv).

4 See Argoe v. Commerce Square Apartments L.P., 1999 WL 1240855, at *1 n.2 (Del. Super. Aug.
10, 1999) (denial of motion to amend premises liability complaint to allege that owners of property
were liable as principals for negligence of property manager would not have been case dispositive,
as Court simultaneously denied defendants’ motion for summary judgment based on premises
liability principles).

5 Even were the Court to consider the appeal under a de novo standard, it would affirm for the
reasons set forth above.

Stacia Vick, et al v. Dr. Nasreen Khan, et al
K18C-09-007 NEP
August 22, 2018

WHEREFORE, the order of Commissioner is AFFIRMED.

IT IS SO ORDERED.

/s/ Noel Eason Primos
Judge

NEP/sz
Via file & ServeXpress & U.S. Mail
oc: Prothonotary
cc: Counsel of Record
Stacia Vick
Chadwick Vick

