Opinion
C. A. N21C-03-240 JRJ
07-24-2023
SHANNON BRISTOW and DANIEL BRISTOW, individually and as the parents and next friends of H.B., a minor, Plaintiffs, v. THE NEMOURS FOUNDATION d/b/a NEMOURS/A.I. duPont HOSPITAL FOR CHILDREN and/or d/b/a NEMOURS-A.I. duPont HOSPITAL FOR CHILDREN; SPECIALTYCARE, INC.; ALIER J. FRANCO, Ph.D, CNIM; SHUANGSHUANG SHI, Au.D, CNIM; et al. Defendants.
Gilbert F. Shelsby, Esq. and Robert J. Leoni, Esq., Shelsby & Leoni, Joshua L. Kirsch, Esq. and Jeffrey L. Kirsch, Esq., The Killino Firm, Attorneys for Plaintiffs. Colleen D. Shields, Esq. and Randall S. MacTough, Esq., Eckert Seamans Cherin & Mellott, LLC, Attorneys for Defendants SpecialtyCare, Inc., Alier J. Franco, Ph.D., CNIM, and Shuangshuang Shi, Au.D, CNIM (“SpecialtyCare Defendants”). John D. Balaguer, Esq. and Lindsey E. Imbrogno, Esq., Balaguer, Milewski, & Imbrogno, LLP, Attorneys for Defendants Nemours, A.I. duPont Hospital for Children, William Mackenzie, M.D., William G. Stuart Mackenzie, M.D., Phoebe Fisher, M.D., and Leslie K. Slifer Jackson, CRNA (Nemours Defendants).
Date Submitted: April 21, 2023
Upon Plaintiffs' Motion to Amend Complaint to Add Punitive Damages Claim: DENIED.
Gilbert F. Shelsby, Esq. and Robert J. Leoni, Esq., Shelsby & Leoni, Joshua L. Kirsch, Esq. and Jeffrey L. Kirsch, Esq., The Killino Firm, Attorneys for Plaintiffs.
Colleen D. Shields, Esq. and Randall S. MacTough, Esq., Eckert Seamans Cherin & Mellott, LLC, Attorneys for Defendants SpecialtyCare, Inc., Alier J. Franco, Ph.D., CNIM, and Shuangshuang Shi, Au.D, CNIM (“SpecialtyCare Defendants”).
John D. Balaguer, Esq. and Lindsey E. Imbrogno, Esq., Balaguer, Milewski, & Imbrogno, LLP, Attorneys for Defendants Nemours, A.I. duPont Hospital for Children, William Mackenzie, M.D., William G. Stuart Mackenzie, M.D., Phoebe Fisher, M.D., and Leslie K. Slifer Jackson, CRNA ("Nemours Defendants").
The Nemours Defendants filed a Response in Opposition to Plaintiffs' Motion to Amend Complaint to Add Punitive Damages, adopting and joining in the SpecialtyCare Defendants' response, however the Plaintiffs are not seeking punitive damages against the Nemours Defendants, therefore this decision addresses only the SpecialtyCare Defendants. See Nemours Defs.' Response Opp. Pls.' Mot. to Amend Compl., Trans. ID 69838965; see also Oral Arg. Tr. 66:7-11, Trans. ID. 70025165.
MEMORANDUM OPINION
JAN R. JURDEN, PRESIDENT JUDGE
I. INTRODUCTION
The Plaintiffs filed this medical negligence action after their minor son, H.B., suffered permanent paralysis during spinal surgery. The Plaintiffs now assert that recently discovered evidence warrants a punitive damages claim, and they seek leave to amend the Complaint to add that claim. The SpecialtyCare Defendants argue that the proposed claim is legally insufficient, comes too late, and would broaden the scope of litigation. In an Order issued on June 23, 2023, this Court denied without prejudice the Plaintiffs' Motion to Amend Complaint to Add Punitive Damages Claim ("Motion"). This Memorandum Opinion follows the Order and explains why, for the reasons that follow, the Motion is DENIED without prejudice.
This case was filed on March 24, 2021. Compl., Trans. ID 66450173. Discovery is ongoing. The Discovery Cut-Off is August 23, 2023, and trial is scheduled to begin on November 9, 2023. Am. Case Scheduling Order, Trans. ID 70403473.
Order Den. Pls.' Mot. to Amend Compl., Trans. ID 70250449; Pls.' Mot. to Amend Compl., Trans. ID 69278380. Because the Plaintiffs' Motion had a duplicate paragraph number, the Court will cite to the Motion by page instead of paragraph to avoid confusion.
II. BACKGROUND
A. The SpecialtyCare Defendants
The Plaintiffs' proposed punitive damages claim pertains to: (1) SpecialtyCare, Inc. ("SpecialtyCare"); (2) Alier J. Franco, Ph.D., CNIM ("Dr. Franco"); and (3) Shuangshuang Shi, Au.D, CNIM ("Dr. Shi") (collectively, "SpecialtyCare Defendants"). SpecialtyCare provides neuromonitoring during surgical procedures, and Dr. Franco and Dr. Shi are employees of SpecialtyCare.
See generally Pls.' Mot. to Amend Compl.
Compl. ¶ 42.
Id. ¶¶ 24, 26.
1. SpecialtyCare
The goal of neuromonitoring is to detect changes in a patient's neurological functioning as early as possible to prevent spinal injury, such as paralysis, and thus minimize risk in the operating room. At the time the Complaint was filed, SpecialtyCare's website stated:
See Dep. Shuangshuang Shi, Au.D, CNIM 85:19-86:8, 91:21-92:3, Trans. ID 69873480.
SpecialtyCare is the largest provider of intraoperative neuromonitoring (IONM) services in the nation, with 110,000 cases every year. Our people work alongside the world's leading surgeons to help identify any early signs of neurological injury. Our surgical neurophysiologist clinicians are backed by a skilled team of IONM physicians, who provide additional support with real-time monitoring through telecommunication, enabling timely interventions to avoid long-term neural problems. At SpecialtyCare, the health of the patient always comes first. As a partner in IONM, we are your insurance policy against risk and the high cost of patient injury, even during the most complex procedures like spine surgery, brain surgery, cardiac surgery, vascular surgery, and general orthopedic surgery. You can rely on our expertise in IONM to reduce risk and help ensure patient safety.
Compl. ¶ 42.
One way of measuring neurological functioning is testing a patient's Transcranial Motor Evoked Potentials ("MEP"), which involves placing electrodes on the skull, running pulses, and recording the patient's response to the stimuli. A lack of response to the stimulation means there has been a loss of MEP and can indicate that the spine has been compromised. According to the Plaintiffs, a patient's MEP should be tested when there is concern for spinal manipulation or the spinal cord is at risk. Dr. Shi testified that MEP should be tested at the request of the operating surgeon or the anesthesiology team. According to SpecialtyCare guidelines, anesthetic levels, including blood pressure and Mean Arterial Pressure ("MAP") (which measures blood flow) should also be documented during neuromonitoring.Sudden changes in a patient's MAP and blood pressure can be harbingers of actual or impending injury to the spinal cord. A patient's MAP and blood pressure should be tested every fifteen minutes when appropriate.
See Dep. Shuangshuang Shi, Au.D, CNIM 94:7-9, 101:1-6; see also Oral Arg. Tr. 7:13-8:1; see also Letter to Hon. J. Jurden, Ex. B, at 4, Trans. ID 69862555 [hereinafter Expert Report].
See Oral Arg. Tr. 7:19-8:8.
Expert Report 6.
Dep. Shuangshuang Shi, Au.D, CNIM 109:3-110:3.
Expert Report 8-9.
Dep. Shuangshuang Shi, Au.D, CNIM 93:2-9.
See id. at 290:16-292:3. Dr. Shi testified at her deposition as follows:
Mr. Kirsch: "Per the guidelines, Doctor, you would agree that, in general, blood pressure and MAP should be documented every fifteen minutes at a minimum, correct?"
Dr. Shi: "That [is] the guideline, but it does not always happen that way."
Mr. Kirsch: "Nonetheless, you agree that's what the guideline is, correct?"
Dr. Shi: "That is the guideline, correct."
Mr. Kirsch: "And would you agree with me, Doctor, that if you saw an extensive period of time in which blood pressure and MAP [were] not being updated in accordance with the guidelines by the surgical neurophysiologist, that's something that you should generally ask about, correct?"
Dr. Shi: "Well, that includes the clinical judgment. Why I say that is when we know the anesthesia team is actively working on something, we do not bother them every fifteen minutes to - to record. We understand that they are actively working on something, we usually stand by and let them do their job[.] . . . The guideline did say, ideally, we should update every fifteen minutes. Unfortunately, that's not happening in every case because, again, our priority when we are in the OR is patient care instead of [] documenting things."Id.
2. Dr. Franco
Dr. Franco works as both an on-site surgical neurophysiologist and a clinical manager for SpecialtyCare. As a surgical neurophysiologist, Dr. Franco is in the operating room, providing neurophysiologic intraoperative monitoring, which involves performing and recording the MEP tests and documenting vitals. Dr. Franco communicates with a remote monitor professional, in this case, Dr. Shi, by sending messages in the Bomgar Remote Monitoring Log ("Bomgar Log"). He also documents surgery updates on his work computer in a "Case Summary." The Case Summary serves as a medical record. As a clinical manager, Dr. Franco assists with quality assurance, which involves responsibilities such as ensuring medical records are routinely updated and correctly reflect patient information. When addressing non-clinical issues that are not directly related to a patient's case, such as administrative and scheduling issues, Dr. Franco communicates through JABBER. JABBER is an instant messaging application utilized by SpecialtyCare, and it is accessible on Dr. Franco's work computer. It can be viewed simultaneously with other windows, such as the Case Summary and the Bomgar Log.
Compl. ¶¶ 23-24. See also Pls.' Mot. to Amend Compl., Ex. B, 89:23-24 [hereinafter Dep. Alier Franco, CNIM].
Compl. ¶ 23.
See Oral Arg. Tr. 7:14-8:8; see also Dep. Shuangshuang Shi, Au.D, CNIM 290:16-21; see also Expert Report 8-9.
See Dep. Shuangshuang Shi, Au.D, CNIM 64:19-22, 133:11-16.
See id. at 131:21-132:15; see also Oral Arg. Tr. 74:5-9.
See Oral Arg. Tr. 74:5-9.
See Dep. Alier Franco, CNIM 89:21-90:6.
Oral Arg. Tr. 28:6-13.
Id. at 27:12-19.
See id. at 41:14-42:2.
3. Dr. Shi
Dr. Shi is an audiologist who works as a remote monitor professional for SpecialtyCare. As a remote monitor professional, Dr. Shi provides remote neurophysiologic intraoperative neuromonitoring, which includes monitoring the surgical neurophysiologist's, in this case, Dr. Franco's, updates and providing input as needed. The remote monitor professional provides "real time technological supervision, interpretation, and diagnostic/therapeutic (interventional) suggestions or recommendations." Dr. Shi works from home and monitors several patients at a time. She splits her computer screen into multiple windows, and each window mirrors the screen of an on-site surgical neurophysiologist. From her remote setup, Dr. Shi can see a patient's Case Summary in real-time, but cannot update it, and is not alerted when the surgical neurophysiologist updates it. Whenever Dr. Shi receives a Bomgar message from the surgical neurophysiologist, however, an audible alert sounds. Dr. Shi testified in her deposition on January 31, 2023 that in 2019, she was assigned eight to twelve cases a day, was not assigned many complicated cases, took lunch and bathroom breaks during non-critical points of neuromonitoring, and occasionally used her phone. Dr. Shi testified that if she remotely monitored over two thousand cases in 2019, she would receive a bonus for each additional case worked.
Compl. ¶¶ 25-26.
Id. ¶ 25.
See Oral Arg. Tr. 8:10-9:4.
Expert Report 7-8 (citing American Society of Neurophysiological Monitoring).
See Dep. Shuangshuang Shi, Au.D, CNIM 124:20-125:4, 134:9-11, 150:14-151:21.
See id. at 131:7-133:24, 150:14-151:21.
See id. at 130:24-131:5, 133:1-24, 164:19-22, 316:24-317:7.
Id. at 134:11-12. Dr. Shi testified that she was alerted "by a song when there's a comment." Id.
See id. at 149:4.
Id. at 171:1-10.
See Dep. Shuangshuang Shi, Au.D,M CNIM 150:2-13, 177:16-179:8. There is no evidence that Dr. Shi took any breaks during H.B.'s procedure, and the Plaintiffs do not allege this in their proposed amended complaint.
See id. at 179:12-181:14. There is no evidence or allegation that Dr. Shi used her phone during H.B.'s procedure.
See id. at 146:23-148:12, 158:3-6. Dr. Shi testified: "[M]y goal was around [two thousand] cases, like I said, roughly, eight to [twelve] cases per day. And I would be compensated $60 per case if I exceed[ed] this goal." Id. at 158:3-6.
B. H.B.'s Spinal Surgery
H.B., who suffers from kyphoscoliosis and pseudo-diastrophic dwarfism with severe thoracic scoliosis, underwent a two-part spinal surgery on March 27, 2019 ("Part I") and April 23, 2019 ("Part II"). Relevant to the instant Motion is Part II. During Part II, the Nemours Defendants attempted to implant a rod designed for correcting spinal curvature in young children in H.B.'s spine. SpecialtyCare provided neuromonitoring during the two-part procedure.
Compl. ¶¶ 45-46, 52.
Id. ¶ 46; Pls.' Mot. to Amend Compl. 1 & n.1.
Compl. ¶¶ 24, 26, 52, 81.
According to the surgeon's operative report, after the implantable rod was cut to length and placed:
The surgeon for H.B.'s procedure was William Mackenzie, M.D. Id. ¶¶ 15, 49, 52.
[W]e were told that there were no motor potentials in the lower extremities. About 20 minutes prior to this time there was the start of a period of unstable blood pressure. The anesthesia team had asked the neural monitoring team if there was any concern. The BP changes continued and the motor potentials were done, and as noted no potentials were found. This was the first motor potential performed since the placement of the Right-sided template rod.
There was an immediate attempt to elevate the blood pressure to a [MAP] of greater than 80 mmHg. The rods were removed and all traction on the spinal cord was relaxed. He was well oxygenated and normothermic. He was given a loading dose of IV methylprednisolone followed by an infusion. ....
I had a discussion with Dr. Campbell of neurosurgery wondering whether it might be appropriate to do a laminectomy at the level of the air. He did not think this would be of any benefit but suggested that we do a myelogram to confirm that there was no compression of the spinal cord at this level.
At this time, the patient self-extubated and we quickly stapled the wound closed for a rapid transfer to a supine position. The anesthesia team corrected the endotracheal tube position. He was then transferred back to a prone position.
New neural monitoring leads were replaced and did not demonstrate any [MEP] below the rectus muscles. At this point he had a period of unexplained hypotension and we again returned him to a supine position where he recovered and we transferred him back prone. ....
He was then transferred out of the operating room in a stable condition to MRI for an emergency scan.
Id. ¶ 53.
According to an additional note by the surgeon, he told H.B.'s parents that there was a loss of the MEP indicating a spinal cord injury in the lower thoracic area and no evidence of recovery was indicated. Based on the MRI, the surgeon concluded "there had been some form of cord contusion at about T10-11 with evidence of cord edema."
Id. ¶ 54.
Id.
C. Neuromonitoring During Part II
During Part II, Dr. Franco was the on-site neurophysiologist and Dr. Shi was the remote monitor professional. Dr. Shi's computer screen mirrored Dr. Franco's, and the two communicated through the Bomgar Log, in which Dr. Franco provided surgery updates to Dr. Shi, who routinely acknowledged the updates.Dr. Shi received audible alerts for Bomgar messages from Dr. Franco, but did not receive audible alerts when Dr. Franco recorded updates in the Case Summary.The Plaintiffs allege the surgical team for H.B.'s surgery expected his MEP would be tested every fifteen minutes.
Dep. Shuangshuang Shi, Au.D, CNIM 118:21-119:4.
See id. at 130:23-24, 133:1-24.
See id. at 64:19-22, 133:1-16. See generally Pls.' Mot. to Amend Compl., Ex. C [hereinafter Bomgar Log].
Prior to the loss of MEP, Dr. Shi acknowledged the updates at 8:53 a.m., 10:06 a.m., 10:12 a.m., 10:25 a.m., 10:31 a.m., 10:33 a.m., 10:39 a.m., 10:55 a.m., 11:15 a.m., 11:41 a.m., 12:12 p.m., 12:17 p.m., and 12:29 p.m. See Bomgar Log 76-78. Following the loss of MEP, she asked followup questions, such as "noted left rod was removed and anes increasing MAP, what is the MAP at this time?" and "all LE MEPs still absent at this time, how is [it] going?" Bomgar Log 76.
See Dep. Shuangshuang Shi, Au.D, CNIM 134:11-12, 164:19-22, 316:24-317:5.
Oral Arg. Tr. 14:20-15:17.
Central to the Plaintiffs' allegations are the documentation and communications between Dr. Franco and Dr. Shi leading up to the loss of MEP around 1:28 p.m. The Plaintiffs' theory is that both of them were distracted during H.B.'s surgery, and in support of that theory, they focus on gaps in documentation and communication.
The loss of MEP was recorded in the Case Summary at 1:28 p.m. and recorded in the Bomgar Log at 1:29 p.m. Pls.' Mot. to Amend Compl., Ex. D, at 10 [hereinafter Case Summary]; Bomgar Log 76.
Dr. Franco documented H.B.'s MAP only three times in the Bomgar Log prior to the loss of MEP - the last documentation occurring two and a half hours before the loss of MEP at 10:55 a.m. Prior to the loss of MEP, Dr. Franco regularly documented "no remarkable changes" in H.B.'s MEP in the Bomgar Log up through 12:15 p.m. His last communication in the Bomgar Log prior to the loss of MEP was at 12:29 p.m., when he documented that the right rod was being fitted. At 12:50 p.m., the anesthesiology team documented an increase in H.B.'s blood pressure, indicating a spike in MAP, which they discussed with Dr. Franco. Dr. Franco did not document this blood pressure increase and the related MAP spike or his discussion about the spike with the team in the Bomgar Log. At 1:29 p.m. Dr. Franco documented H.B.'s loss of MEP in the Bomgar Log.
See Bomgar Log 77-78. Prior to the loss of MEP, Dr. Franco documented H.B.'s MAP at 8:40 a.m., 8:50 a.m., and 10:55 a.m.; following the loss of MEP, he documented H.B.'s MAP at 1:36 p.m., 1:59 p.m., 2:02 p.m., 2:04 p.m., 2:23 p.m., and 2:32 p.m. Id. at 76-78. These times have been changed from Central Standard Time to reflect Eastern Standard Time. See Letter to Hon. J. Jurden 1-2 (stating that surgery took place in Eastern Standard Time and the Case Summary is in Eastern Standard Time, however the Bomgar Log and JABBER messages are in Central Standard Time).
See Bomgar Log 76-78. Prior to the loss of MEP, Dr. Franco documented H.B.'s MEP in the Bomgar Log at 10:05 a.m., 10:12 a.m., 10:24 a.m., 10:28 a.m., 10:33 a.m., 10:37 a.m., 10:38 a.m., 10:55 a.m., 11:12 a.m., 11:35 a.m., 11:38 a.m., and 12:15 p.m. Id.
See id. at 76.
See Compl. ¶ 56. The Plaintiffs allege a sudden change in MAP can indicate actual or impending injury to the spinal cord. See Pls.' Mot. to Amend Compl. 5 ("[A]n approximate 80% jump in MAP . . . could be a cause for concern for the integrity of H.B.'s spinal cord."). See also Dep. Shuangshuang Shi, Au.D, CNIM 93:6-9 (agreeing that a sudden change in MAP can be a harbinger of actual or impending injury to the spinal cord).
See generally Bomgar Log. In the Case Summary, Dr. Franco only noted: "remi increased to 0.5 anesthesia working to find optimal anesthetic background." Case Summary 10. Again, Dr. Shi did not receive audible alerts for Dr. Franco's Case Summary updates. See supra n.52.
Bomgar Log 76.
As he did in the Bomgar Log, Dr. Franco documented H.B.'s MAP in the Case Summary only three times prior to the loss of MEP - the last documentation occurring two and a half hours before the loss of MEP at 10:54 a.m. As with the Bomgar Log, Dr. Franco did not document H.B.'s blood pressure increase and the related MAP spike, or his discussion with the team about the spike. Dr. Franco's documentations in the Case Summary are similar to those in the Bomgar Log, however, the Case Summary includes additional entries not recorded in the Bomgar Log. In addition to regularly documenting that there were "no remarkable changes" in H.B.'s MEP prior to the loss of MEP, Dr. Franco documented that the right rod was in place and there were "no remarkable changes in MEPs" at 12:37 p.m. At 1:01 p.m. he documented that the anesthesiology team was "working to find [the] optimal anesthetic background," and that the left rod was cut at 1:12 p.m.
See Case Summary 1-2, 6. Prior to the loss of MEP, Dr. Franco documented H.B.'s MAP at 8:38 a.m., 8:48 a.m., and 10:54 a.m.; following the loss of MEP, he documented H.B.'s MAP at 1:38 p.m., 1:56 p.m., 2:01 p.m., 2:04 p.m., 2:22 p.m., 2:31 p.m., 2:24 p.m., 4:35 p.m., and 4:42 p.m. Id. at 1-18.
See id. at 10.
Prior to the loss of MEP, Dr. Franco documented H.B.'s MEP in the Case Summary at 10:05 a.m., 10:11 a.m., 10:23 a.m., 10:27 a.m., 10:32 a.m., 10:37 a.m., 10:38 a.m., 10:54 a.m., 11:11 a.m., 11:28 a.m., 11:35 a.m., 11:38 a.m., 12:04 p.m., 12:14 p.m., and 12:37 p.m. See id. at 3-10.
Id. at 10.
Id.
It is unclear from the record why Dr. Franco did not test H.B.'s MEP for fifty minutes after the 12:37 p.m. test (which was only documented in the Case Summary). The next time Dr. Franco tested H.B.'s MEP, at 1:28 p.m., he documented H.B. had significant loss of MEP in his lower extremities in both the Bomgar Log and the Case Summary.
The alert was documented in the Case Summary at 1:28 p.m. and in the Bomgar Log at 1:29 p.m. Id. at 10; Bomgar Log 76.
D. The Plaintiffs' Expert Report
In support of their proposed punitive damages claim, the Plaintiffs rely on a report from their expert, Carolyn Bower, Au.D, which states the SpecialtyCare Defendants breached the standard of care and their failures "rise to the level of recklessness." She opines that Dr. Franco "tried to act like the [remote monitor professional], not even communicating anesthesia's concerns to Dr. Shi, and thoroughly and unconscionably failed in his duties to safeguard [H.B.'s] spinal cord." She opines that Dr. Shi "outrageously abandoned her supervisory, oversight obligations/responsibilities [and] left Dr. Franco to act as the [remote monitor professional]." She further opines that SpecialtyCare "has not created a neuromonitoring structure suitable for protecting the neurologic integrity of patients like [H.B.]."
Expert Report 12.
Id. at 12-13.
Id. at 12.
Id.
III. STANDARD OF REVIEW
A. Leave to Amend
"An order permitting or refusing an amendment to the complaint is committed to the sound discretion of the trial court." Where a party seeks to amend its pleading after a responsive pleading has already been filed, it "may amend [its] pleading only by leave of Court . . . and leave shall be freely given when justice so requires." Justice may not so require where "there is evidence of undue delay, bad faith or dilatory motive on part of the movant, repeated failure to cure deficiencies, prejudice, futility, or the like." If a proposed amendment is futile, meaning legally insufficient, because it would not survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, it should be denied. When determining whether a proposed amendment is futile, the Court accepts all well-pled allegations as true.When prudent to do so, the Court can consider extraneous facts presented by the parties for the sole purpose of determining the futility of a proposed amendment."[W]here the insufficiency of the amendment is obvious on its face, the legal sufficiency question should be ruled upon at the time of the motion for leave to amend."
Timblin v. Kent Gen. Hosp., 1995 WL 44250, at *1 (Del. Super. Feb. 1, 1995) (citing Mullen v. Alarmguard of Delaware, Inc., 625 A.2d 258, 262 (Del. 1993)).
Super. Ct. Civ. R. 15(a).
Hess v. Carmine, 396 A.2d 173, 177 (Del. Super. 1978).
See Clark v. State Farm Mut. Auto. Ins. Co., 131 A.3d 806, 811 (Del. 2016).
Doe 30's Mother v. Bradley, 58 A.3d 429, 446 (Del. Super. 2012).
Id. In the case before the Court, litigation commenced two years ago and discovery is now nearing its end. The Motion therefore puts the Court in a unique procedural posture, as extraneous facts have been provided by both parties. Because it is prudent to do so here, the Court will consider these facts in its determination of the futility of the proposed amended complaint.
Itek Corp. v. Chicago Aerial Indus., 257 A.2d 232, 233 (Del. Super. 1969).
B. Punitive Damages in Medical Negligence Cases
Punitive damages in medical negligence cases are governed by 18 Del. C. § 6855, which states, "punitive damages may be awarded only if it is found that the injury complained of was maliciously intended or was the result of wilful or wanton misconduct by the health-care provider." "[V]ery high levels of inappropriate actions are required to warrant" a submission of punitive damages to the trier-of-fact. Mere statements or allegations of willful, wanton, or reckless misconduct, absent more, are insufficient.
18 Del. C. § 6855. It is undisputed that all SpecialtyCare Defendants are health-care providers. See id. § 6801(5) ("'Health-care provider' means a person, corporation, facility or institution licensed by this State pursuant to Title 24, excluding Chapter 11 thereof, or Title 16 to provide health-care or professional services or any officers, employees or agents thereof acting within the scope of their employment[.]").
Vick v. Khan, 2019 WL 2177114, at *8 (Del. Super. May 17, 2019).
Id.
If a plaintiff meets this high bar and punitive damages are submitted, the statute demands that the trier-of-fact "evaluate the underlying facts and determine whether the conduct was egregious enough to suggest malicious intent or willful and wanton misconduct." "Wilful and wanton misconduct is analogous to the conscious indifference or disregard for the rights of others and has commonly been referred to as the 'I don't care' attitude." By contrast, punitive damages are not warranted where "unforeseen damage or injury results from intended medication, manipulation, surgery, treatment or the intended omission thereof, administered or omitted without actual malice or if the intended treatment is applied or omitted by mistake to or for the wrong patient or wrong organ."
Estate of Moulder v. Park, 2022 WL 4544837, at *6 (Del. Super. Sept. 29, 2022).
Armstrong v. A.I. Dupont Hosp. for Children, 60 A.3d 414, 418 (Del. Super. Jan. 31, 2012) (citing Pattanayak v. Khan, 2005 WL 2660080, at *2 (Del. Super. Sept. 12, 2005)).
C. Punitive Damages in General
Although punitive damages in medical negligence cases are governed by statute, Delaware punitive damages case law is instructive on what constitutes punitive conduct. The seminal punitive damages case, Jardel Co., Inc. v. Hughes, requires conduct to be "particularly reprehensible" to warrant punitive damages."Mere inadvertence, mistake or errors of judgment which constitute mere negligence will not suffice. It is not enough that a decision be wrong. It must result from a conscious indifference to the decision's foreseeable effect." Conscious indifference consists of two elements: (1) the act itself and (2) "the actor's state of mind and the issue of foreseeability, or the perception the actor had or should have had of the risk of harm which his conduct would create." "Where the claim . . . is based on an error of judgment, a form of passive negligence, the plaintiff's burden is substantial. It must be shown that the precise harm which eventuated must have been reasonably apparent but consciously ignored in the formulation of the judgment." The defendant's state of mind is a vital element in punitive damages.
523 A.2d 518, 529 (Del. 1987).
Id. (internal citation omitted).
Id. at 530.
Id. at 531.
Id. at 530.
IV. DISCUSSION
A. Punitive Damages in Medical Negligence Cases
As noted earlier, the bar for willful or wanton misconduct is high. A brief discussion of Delaware punitive damages in medical negligence jurisprudence lends context and perspective to the Court's analysis here.
In Armstrong v. A.I. Dupont Hospital for Children, the Court rejected the argument that a claim for punitive damages against two defendant-doctors should be dismissed because they lacked the requisite state of mind for willful or wanton misconduct. In Armstrong, the plaintiffs alleged that the decedent-minor, who suffered from obstructive sleep apnea, was given a combination of medicines before and after a brief surgery. They allege his discharge from the hospital was contingent upon the following conditions: that he tolerate post-operative care well; that his vital signs were stable; that "PACU criteria" was met; and that there was no bleeding, emesis, or respiratory distress. The plaintiffs alleged that, despite the conditions, the decedent was discharged even though he had not regained consciousness and was completely unresponsive. He died the same evening. The plaintiffs claimed that because the defendants knew or should have known that children suffering from obstructive sleep apnea are at an increased risk of depressive respiratory effects after emergence from anesthesia, the failure to provide risk assessment or treatment after administering multiple narcotic analgesics warranted punitive damages. The Court in Armstrong held that the alleged facts were sufficient to support a claim for punitive damages at the motion to dismiss stage.
60 A.3d 414 (Del. Super. 2012).
See id. at 416-20. Because futility is evaluated under the same standard applicable in motions to dismiss for failure to state a claim, Armstrong is particularly instructive here.
See id. at 416-17.
Id.
Id. at 417.
Id.
See id. at 419-20.
Armstrong, 60 A.3d at 420.
In Solway v. Kent Diagnostic Radiology Associates, P.A., the plaintiff's punitive damages claim survived summary judgment because the Court found the defendant-doctor's conduct justified a reasonable inference of willful or wanton misconduct. In Solway, following a car accident, the plaintiff was admitted to the hospital. Four days later, on January 30, 2009, the defendant ordered a routine MRI of her lumbar and thoracic spine. He stated he did not order it "stat" because her prior negative diagnostic tests were reassuring, she had been seen by an orthopedic surgeon, and he had received MRI results promptly in the past. Despite observing increased weakness in the plaintiff's leg between January 31 and February 1, the defendant did not inquire about the MRI results. The plaintiff alleged that the defendant ordered the MRI to rule out spinal cord compression, which he knew could be a result of the car accident and could lead to paralysis. The plaintiff argued that, despite knowledge of the risks, the defendant then recklessly stood by and did nothing to follow up on the MRI for two days. The Court in Solway held that the facts demonstrated the defendant failed to take proactive measures while watching the plaintiff's condition deteriorate, despite knowledge of the risks, and therefore the plaintiff sufficiently established conscious indifference.
2014 WL 703761, at *4 (Del. Super. Feb. 18, 2014).
Id. at *1.
Id.
Id.
Id. at *2.
Id.
Solway, 2014 WL 703761, at *2.
Id. at *4.
Conversely, in Vick v. Khan and Marro v. Gomez, the Court disallowed punitive damages. In Vick, the Court granted summary judgment in the defendantdoctor's favor as to punitive damages because no evidence demonstrated malicious intent or willful or wanton misconduct. The plaintiff alleged the emergency hysterectomy performed by the defendant was maliciously intended or the result of willful or wanton misconduct. As evidence of the defendant's allegedly punitive conduct, the plaintiffs relied on the patient's testimony, in which she stated the defendant planned to perform a hysterectomy; said multiple times that the patient was a "perfect candidate" for a hysterectomy and wanted to use it as a "teaching moment;" and forced her to sign the consent form by threatening to let the child die inside of her. The Court in Vick found that the plaintiffs did not "offer[] any factual support to warrant the submission of this case to a jury for the consideration of punitive damages," and that, contrary to the plaintiffs' allegations, the record indicated that the defendant was attempting to save the patient's life. The Court in Vick relied on the testimony of the plaintiffs' own expert, who believed the defendant performed the hysterectomy to save the patient. There was no evidence in the record to support a claim that the defendant intentionally cut the patient's fibroids in order to perform the hysterectomy or wanted to perform the hysterectomy as a "teaching moment."
2019 WL 2177114, at *1 (Del. Super. May 17, 2019).
1996 WL 453311, at *1 (Del. Super. May 31, 1996).
2019 WL 2177114, at *1, *7-9.
See id. at *8.
Id. at *8.
Id.
Id.
Id.
In Marro, the Court denied the plaintiffs' motion for leave to amend their complaint to add punitive damages. The plaintiff in Marro was suffering from a herniated disc, and the defendant-doctor determined removal of the plaintiff's L4/L5 disc was necessary. Unbeknownst to the defendant, another patient's x-ray films were mixed into the plaintiff's file, which led the defendant to mistakenly remove the plaintiff's L5/S1 disc, rather than the L4/L5 disc. After reportedly feeling better, the plaintiff returned to work, only to injure his back again. The plaintiff returned to the defendant, who performed a second surgery, this time removing the L4/L5 disc that was supposed to be removed in the prior surgery. Believing that his back was injured at work, the plaintiff sought compensation from his employer. Through discovery in that case, the plaintiff learned, over two years after his initial surgery, that the defendant removed the wrong disc due to the file mix-up. Four years after the plaintiffs commenced the suit, they moved to amend the complaint, alleging that punitive damages were warranted because the defendant altered medical records to conceal his mistake and was grossly negligent in operating on the wrong disc. The Court in Marro held, even assuming that the defendant concealed the mistake and was grossly negligent, a punitive damages claim was not warranted given the legal insufficiency and untimeliness of the motion. The Court in Marro explained the legal insufficiency as follows:
Marro, 1996 WL 453311, at *6-7.
See id.
Id. at *1-3.
Id. at *2.
Id.
Id.
Marro, 1996 WL 453311 at *2-3.
Id. at *5.
See id. at *5-6.
[I]n exercising its discretion, the Court is taking into consideration the unlikelihood of Plaintiffs[] actually receiving any punitive damages. Viewing Plaintiffs' evidence in the most favorable light, it appears that Gopez now admits that he operated on the wrong disc because he did not correlate the name on the x-ray film given to him in the operating room with the name of his patient. Obviously, that is a serious, actionable mistake. Liability is conceded. However, Plaintiffs have presented no evidence, beyond Gopez 's negligence, that supports a furtherfinding that
Gopez was willful, reckless, or indifferent or that he had an "I don't care" attitude during the surgery. Even taking into consideration the Court's traditional unwillingness to substitute its view of a Defendant's state of mindfor that of the jury, it does not appear that there is sufficient evidence in the record to support a finding of willfulness, recklessness or indifference on Gopez's part.
Id. at *6 (emphasis added) (internal citations omitted).
B. Legal Sufficiency of the Claims
1. The Claim Against Dr. Franco
The Plaintiffs argue that punitive damages are warranted against Dr. Franco because he acted with conscious indifference of ethical rules, H.B.'s safety, and SpecialtyCare's company guidelines. The Plaintiffs allege that Dr. Franco recklessly: worked in a dual capacity during H.B.'s surgery as both a surgical neurophysiologist and a clinical manager; sent messages on JABBER during H.B.'s procedure; did not document that he and the anesthesiology team discussed H.B.'s rising blood pressure; did not notify Dr. Shi that H.B. experienced an 80% spike in MAP; and did not record H.B.'s blood pressure or MAP for the two and a half hours leading up to H.B.'s loss of MEP.
See Pls.' Mot. to Amend Compl., Ex. A ¶¶ 135, 137.
Pls.' Mot. to Amend Compl. 3.
Id. at 3, 5.
Id. at 5.
Id.
Id. In response to the Plaintiffs' claim, the SpecialtyCare Defendants argue that Dr. Franco's alleged conduct was not "particularly reprehensible" and the Plaintiffs fail to cite authority supporting the claim that engaging in limited communications on the same device used to analyze data manifested deliberate indifference. Defs.' Answering Br. ¶ 7, Trans. ID 69838934.
With regard to the Plaintiffs' first and second assertions, while Dr. Franco admitted he was dividing his attention during H.B.'s surgery by sending non-urgent emails and JABBER messages in his capacity as clinical manager, he testified that employees are capable of dividing their attention, and in this case he did. At the same time Dr. Franco was discussing H.B.'s blood pressure with the anesthesiology team, he sent emails and JABBER messages in an attempt to solve data issues regarding H.B.'s file, which he agreed was one of his responsibilities as a clinical manager. Although Dr. Franco admitted the data he was messaging about "was not needed during the actual procedure," he "wanted the first medical record to accurately have [H.B.'s] data." The Plaintiffs point to a JABBER message unrelated to H.B.'s care that Dr. Franco sent around the time a pedicle screw was being placed, asking "how's your room going?" Although Dr. Franco agreed that he should not be messaging about other procedures during critical points in surgery, he testified he did not act with "diminished capacity or attention." He clarified that he cannot test MEP during the screw placement, but tested H.B.'s MEP as soon as he could thereafter. Although the Plaintiffs allege that Dr. Franco was distracted at points, here, the factual allegations do not establish willful or wanton misconduct. Accepting the well-pled allegations as true, they do not support a claim that H.B.'s injury was maliciously intended or the result of willful or wanton misconduct by Dr. Franco reflecting an "I don't care" attitude.
Dep. Alier Franco, CNIM 41:5-20.
Id. at 88:17-96:19. Some of the raw data in H.B.'s file was corrupted, and some of it was incorrect, so Dr. Franco sent JABBER messages and emails to the Part I on-site surgical neurophysiologist to fix the file. See id. at 88:17-97:4; see also Oral Arg. Tr. 31:18-32:3. See generally Letter to Hon. J. Jurden, Ex. A [hereinafter JABBER Log].
Dep. Alier Franco, CNIM 90:22-23.
Id. at 90:16-18.
Pedicle screws are "threaded titanium or stainless-steel implants that are fastened through the vertebral pedicles located at the back of the spinal bones" and are "used to help secure rods and/or plates to the spinal segment(s) during a spinal fusion surgery." Jay Jagannathan, Pedicle Screws for Spine Fusion, Spine-health (Oct. 17, 2022), https://www.spine-health.com/treatment/spinal-fusion/pedicle-screws-spine-fusion.
Dep. Alier Franco, CNIM 57:6-58:20. See also JABBER Log 1.
Dep. Alier Franco, CNIM 59:1-9.
Id. at 59:13-17.
Id. at 58:1-59:17.
As to the Plaintiffs' third and fourth assertions, the Plaintiffs' expert opines that a surgical pause was needed to address H.B.'s increase in blood pressure, so by not informing Dr. Shi of the MAP spike at 12:50 p.m. and his discussion with the anesthesiology team regarding H.B.'s increase in blood pressure (indicating the MAP spike), Dr. Franco "recklessly act[ed] as the clinician." It is "axiomatic that physicians are not trained in the nuances of legal language distinction," and the mere use of words such as "reckless" are "of small consequence." In other words, the Court relies on the facts alleged, not the expert's characterizations. Although the Plaintiffs' expert uses the term "reckless," nothing in her report suggests that the precise harm, paralysis, was reasonably apparent and consciously ignored by Dr. Franco. Errors of judgment or mere inadvertence do not constitute willful or wanton misconduct.
Expert Report 11-12.
Hartman v. Orthopaedic Assocs. of Southern Delaware, P.A., 2015 WL 995767, at *2 (Del. Super. Feb. 27, 2015).
Jardel Co., Inc., 523 A.2d at 529.
As to the Plaintiffs' fifth assertion, the Plaintiffs' expert opines that according to SpecialtyCare guidelines, Dr. Franco should have documented H.B.'s MAP and blood pressure in the two and a half hours leading up to the loss of MEP.Accepting this as true for the purposes of this Motion, again, the facts as pled do not support a claim that H.B.'s paralysis was maliciously intended or the result of willful or wanton misconduct reflecting an "I don't care" attitude. And once more, errors of judgment or mere inadvertence, which constitute mere negligence, do not constitute willful or wanton misconduct. More is needed and it is not pled here.
Expert Report 8-9.
Jardel Co., Inc., 523 A.2d at 529.
See 18 Del. C. § 6855; see also Vick, 2019 WL 2177114, at *8.
Although leave to amend should be freely granted when justice so requires, the proposed punitive damages claim against Dr. Franco is legally insufficient.Consequently, the Motion is DENIED without prejudice as to the claim against Dr. Franco.
See Yu v. GSM Nation, LLC., 2018 WL 2272708, at *17 (Del. Super. Apr. 24, 2018), stating:
A motion to amend must be denied if the amendment would be futile in the sense that it would not survive a motion to dismiss under Rule 12(b)(6). The standard for assessing the legal sufficiency of a proposed amended complaint is the same standard applicable to a motion to dismiss under Rule 12(b)(6) - all allegations in the amended complaint must be accepted as true, and the proposed amendment will not be dismissed unless the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.
2. The Claim Against Dr. Shi
The Plaintiffs argue that punitive damages are warranted against Dr. Shi because she acted with conscious indifference of ethical rules, H.B.'s safety, and SpecialtyCare's company guidelines. The Plaintiffs allege that Dr. Shi recklessly: failed to supervise Dr. Franco; recklessly failed to communicate with Dr. Franco for the hour leading up to the loss of MEP; recklessly took on "as many neuromonitoring cases as she could" because she was incentivized for doing so under SpecialtyCare's bonus structure; and engaged in personal calls and texts and reviewed articles on her cell phone while working.
See Pls.' Mot. to Amend Compl., Ex. A ¶¶ 154-55, 157.
See Pls.' Mot. to Amend Compl. 5.
Id.
Id. at 4. The Plaintiffs additionally assert that Dr. Shi "intentionally chose to go-along with [SpecialtyCare's] mill-like Incentivization structure which emphasizes profits over safety." Pls.' Mot. to Amend Compl., Ex. A ¶¶ 150-51.
Pls.' Mot. to Amend Compl. 4.
The SpecialtyCare Defendants argue that because Dr. Shi had no actual or constructive notice of Dr. Franco's conduct, the claim that she recklessly failed to supervise him is legally insufficient. They also argue that the bonus structure cannot be a basis for punitive damages because Dr. Shi does not choose her assignments. Last, the SpecialtyCare Defendants argue that the Plaintiffs did not specifically allege that Dr. Shi took breaks or used her phone during H.B.'s procedures, and even if she did, such conduct is not "outrageous."
Defs.' Answering Br. ¶ 8.
Id.
Id.
The Plaintiffs' first two assertions center on Dr. Shi's failure to communicate with, and ipso facto supervise, Dr. Franco. The Plaintiffs' expert opines that Dr. Shi "outrageously abandoned her supervisory, oversight obligations/responsibilities," because she did not fulfill her responsibility as the remote neuromonitoring professional and therefore left Dr. Franco to perform the professional aspects of neuromonitoring. The Plaintiffs' expert further opines that given the change in H.B.'s vitals (the increase in blood pressure indicating the MAP spike), Dr. Shi should have suggested that Dr. Franco test H.B.'s MEP and "provided significant assistance" when the change in H.B.'s vitals occurred. But, according to the Bomgar Log and Case Summary, Dr. Franco did not document the change in vitals; therefore, Dr. Shi had no way of knowing about it. To the extent the Plaintiffs argue Dr. Shi should have proactively inquired about vitals, mere inadvertence and errors of judgment are not enough to warrant punitive damages.Further, the Bomgar Log shows Dr. Shi routinely acknowledged Dr. Franco's updates and asked follow-up questions upon receiving the Bomgar message alerting her about the loss of MEP. As pled, her conduct does not reflect an "I don't care" attitude. While the expert report states that Dr. Shi did not adhere to guidelines, breached the standard of care, and proximately caused H.B.'s injury, the Court looks at the facts, not the expert's legal characterizations. The facts as pled do not show that H.B.'s paralysis was maliciously intended or the result of willful or wanton misconduct by Dr. Shi reflecting an "I don't care" attitude.
"Ipso facto" literally translated means "by the fact itself." Ipso facto, Black's Law Dictionary (11th ed. 2019).
Expert Report 10-12.
See id. at 6, 9-10.
See Bomgar Log 76; see also Case Summary 10.
Jardel Co., Inc. v. Hughes, 523 A.2d 518, 529 (Del. 1987).
See generally Bomgar Log.
As to the third assertion, the record contradicts the Plaintiffs' assertion that Dr. Shi recklessly worked beyond her capacity to obtain a bonus. The Plaintiffs point to Dr. Shi's testimony that she worked continuously from 7:00 a.m. to 5:00 p.m., forcing her to step away from active neuromonitoring cases for things like lunch breaks, worked on nights and weekends, and monitored several cases at a time. The Plaintiffs do not specifically allege, however, that Dr. Shi stepped away for a break while monitoring H.B.'s procedure, nor does the record indicate that she actually did. Furthermore, Dr. Shi testified that she does not have control over the cases assigned to her, and if she felt she was working beyond her capacity and could not sufficiently tend to her responsibilities, she would request assistance. Given that Dr. Shi did not have control over her schedule and would have requested assistance if she felt overwhelmed, the record does not support the Plaintiffs' claim that Dr. Shi recklessly "[took] on as many neuromonitoring cases as she could."
See Pls.' Mot. to Amend Compl., Ex. A ¶ 151.
Id.
Pls.' Mot. to Amend Compl. 4.
See Dep. Shuangshuang Shi, Au.D, CNIM 170:11-18, 190:5-14.
Pls.' Mot. to Amend Compl. 4.
Finally, the Plaintiffs' fourth assertion does not support a punitive damages claim against Dr. Shi because there is no allegation or evidence that she used her phone during H.B.'s procedure.
The proposed punitive damages claim against Dr. Shi is legally insufficient. The facts alleged do not illustrate that H.B.'s paralysis was maliciously intended or the result of willful or wanton misconduct, and therefore the Motion is DENIED without prejudice as to the claim against Dr. Shi.
3. The Direct Liability Claim Against SpecialtyCare
The Plaintiffs argue punitive damages are warranted against SpecialtyCare because it operates a "dangerous system, process, and operational mill-like structure," that prioritizes profits over safety and "intentionally tolerates conscious disregard of rules and requirements of credentialing organizations . . . and SpecialtyCare's own protocols and guidelines," which Dr. Franco and Dr. Shi's conduct was allegedly the by-product of.
Pls.' Mot. to Amend Compl., Ex. A ¶ 84.
Pls.' Mot. to Amend Compl. 4-5; Pls.' Mot. to Amend Compl., Ex. A ¶¶ 85, 90. The SpecialtyCare Defendants maintain that although the Plaintiffs' claim must be pled with particularity under Rule 9(b), the Plaintiffs only "rehash their ordinary negligence claims and add an allegation that a 'mill-like structure' existed without specifically describing it. Defs.' Answering Br. ¶ 6.
The Supreme Court of Delaware addressed a similar argument in Strauss v. Biggs. In Strauss, a medical malpractice case, the appellant-doctor appealed the jury's award of compensatory and punitive damages for a misplaced surgical incision on the plaintiff's foot, and five additional acts of negligence related to the patient's treatment. The plaintiff argued that punitive damages were warranted because Strauss was motivated by greed. The trial court summarized the evidence supporting the imposition of punitive damages as follows:
525 A.2d 992 (Del. 1987).
Id. at 994, 996.
At the close of the evidence, the trial court instructed the jury to assess compensatory damages pursuant to the conceded claim dealing with the misplaced incision and to consider whether defendant's conduct during the course of treatment, taken as a whole, warranted punitive as well as compensatory damages. In the context of the punitive damages charge, the court submitted five additional claims based on omissions during the course of treatment. These five additional claims concerned Dr. Strauss' alleged failure: (1) to treat Mrs. Biggs conservatively and to refer her to a podiatrist who could perform the appropriate procedure; (2) to perform the fasciotomy itself; (3) to stop the procedure after the first incision and to inform Mrs. Biggs that the incision might have involved a nerve; (4) to properly treat her after the unsuccessful surgery; and (5) to refer her to a neurologist or neurosurgeon after he knew or should have known of the nerve injury.Id. at 996.
Id. at 996.
If the jury believed the overwhelming evidence presented [on] behalf of the plaintiff, they could believe among other things that the [defendant] was operating a "podiatric mill" in the most pejorative
sense the phrase would contemplate; that he was motivated more by money than by the medical/ethical standards of his profession; that he fell . . . far short of the professional mark in his effort to perform a fasciotomy; and that he attempted to cover up his actions thereby attempting to avoid being caught for his negligent conduct and thereby protracting unnecessarily the plaintiff's pain and suffering before she was able to be put in the hands of a specialist who would provide appropriate medical care.
Id. at 1000-01.
Strauss appealed the trial court's decision denying his motion for a judgment notwithstanding the verdict, a new trial, or remittiur as to compensatory and punitive damages. The Supreme Court found "substantial evidence" supporting the plaintiffs' argument to the jury that Strauss was running a "podiatric mill" and was motivated by greed where the facts illustrated that he worked from 9:00 a.m. to 1:00 a.m.; performed an operation that would only provide partial relief when he knew or should have known a different operation (which he could not perform) was medically indicated; and overcharged the patient's insurer.
Id. at 996.
Id. at 999-1000.
This is not that case. The facts as pled in the proposed amended complaint do not support the Plaintiffs' claim that SpecialtyCare was motivated by greed and operated a neuromonitoring mill that prioritized profits to the detriment of patient safety. The Plaintiffs rely on the same facts they allege with respect to Dr. Franco and Dr. Shi's conduct. This does not come close to the bar set by 18 Del. C. § 6855. Because the record does not support the Plaintiffs' "mill-like structure" and "greed" arguments, the direct liability claim is legally insufficient and is therefore DENIED without prejudice.
See Pls.' Mot. to Amend Compl. 4-5; see also Pls.' Mot. to Amend Compl., Ex. A ¶ 89. The Plaintiffs allege that Dr. Shi took on "as many neuromonitoring cases as she could," as evidenced by her testimony that, in 2019, she received a bonus for each additional case worked after reaching her goal of two thousand cases for the year; worked from 7:00 a.m. to 5:00 p.m. with no breaks; took on additional neuromonitoring cases on nights and weekends; and could be connected to several cases at a time. See Pls.' Mot. to Amend Compl., Ex. A ¶ 89(b)-(d).
4. The Vicarious Liability Claim Against SpecialtyCare
In their proposed amended complaint, the Plaintiffs submit that SpecialtyCare is vicariously liable for Dr. Franco and Dr. Shi's conduct. According to the SpecialtyCare Defendants, however, the Plaintiffs fail to allege that "SpecialtyCare knew of, and authorized, ratified, or approved the alleged reckless conduct of Dr. Franco or Dr. Shi"; that Dr. Franco or Dr. Shi were unfit and recklessly employed; or that either were acting in managerial capacities. Because the facts as pled do not support the Plaintiffs' argument that punitive damages are warranted against Dr. Franco and Dr. Shi under 18 Del. C. § 6855, the vicarious liability claim against their employer, SpecialtyCare, fails and is therefore DENIED without prejudice.
Pls.' Mot. to Amend Compl., Ex. A ¶¶ 81-83, 88-89, 90. The Plaintiffs did not address vicarious liability in their Motion, but at Oral Argument, they argued that SpecialtyCare is vicariously liable because Dr. Franco was acting as a clinical manager and Dr. Shi oversaw Dr. Franco. See Oral Arg. Tr. 61:5-62:7.
See Def.'s Answering Br. ¶ 6. See Restatement (Second) of Torts § 909 (1979), stating:
Punitive damages can properly be awarded against a master or other principal because of an act by an agent if, but only if, (a) the principal or a managerial agent authorized the doing and the manner of the act, or (b) the agent was unfit and the principal or a managerial agent was reckless in employing or retaining him, or (c) the agent was employed in a managerial capacity and was acting in the scope of employment, or (d) the principal or a managerial agent of the principal ratified or approved the act.
C. Delay and Scope
The Court next addresses the SpecialtyCare Defendants' argument that the Motion should be denied because of its delay. They maintain that granting the Motion would "greatly broaden the litigation's scope and delay its disposition."On the other hand, the Plaintiffs argue that "the SpecialtyCare Defendants are not prejudiced" because "[d]eposition and document discovery . . . already addressed the factual allegations," and there is "ample time for [the SpecialtyCare] Defendants to take whatever discovery they feel is necessary to defend the punitive damages claims." The Plaintiffs further state that their experts plan to address the conduct at issue regardless of the outcome of this decision.
Defs.' Answering Br. ¶ 9. The SpecialtyCare Defendants cite Taylor v. Christiana Care Health Services, Inc., which states that preference for permitting amendments is tempered if "there is a delay in presentation or the amendment: is broad, adds to the trial's complexity, substantially changes a cause of action or defense, or is legally insufficient." In Taylor, the Court "decline[d] to allow Plaintiffs to greatly broaden the litigation's scope and delay its deposition." WL 1415779, at *2, *4 (Del. Super. Feb. 27, 2012).
Defs.' Answering Br. ¶ 9.
Pls.' Mot. to Amend Compl. 5-6. At Oral Argument, the Plaintiffs stated that the only additional deposition they planned to conduct was that of SpecialtyCare's Rule 30(b)(6) representative. Oral Argument Tr. 33:21-34:4. According to the docket, the Plaintiffs were to conduct the deposition on June 13, 2023. Renotice of Dep., Trans. ID 69929217. The Plaintiffs' statement further evinces all facts that could support their claim have been pled.
Oral Arg. Tr. 33:9-34:15, 64:11-22.
Two years have transpired since the initiation of this suit; however, the late timing is not due to bad faith, dilatory tactics, or inexcusable neglect. As the Court noted at Oral Argument, the Motion was not filed earlier because SpecialtyCare Defendants did not produce ESI related to JABBER as requested in Plaintiffs' First Request for Production of Documents Directed to Defendants filed on March 24, 2021. Less than a month after Plaintiffs learned of Dr. Franco's JABBER messages (during the second part of his deposition), they filed the Motion. Therefore, the delay in filing the Motion, on its own, does not support denying the Motion.
See Hess, 396 A.2d at 177.
Oral Argument Tr. 22:4 - 27:1, 52:1-3. See Pls.' First Set of Reqs. for Produc. of Docs. Directed to Defs., TransID No. 66450173.
The Court shares the SpecialtyCare Defendants' concerns about broadening the scope of litigation. The Court in Timblin v. Kent General Hospital explained that:
A claim of recklessness for punitive damages can indeed add to the evidentiary burden both on discovery and at trial. There can be added evidence designed to paint the defendant as a large, bad corporate person. Even on liability, the degree of inquiry, and particularly the degree of defense, are seldom the same as in simple negligence claims. Allowing amendments to the complaint which add a count of recklessness and a claim for punitive damages would inject new issues requiring additional discovery.
1995 WL 44250, at *4 (Del. Super. Feb. 1, 1995).
At Oral Argument, the SpecialtyCare Defendants advised that the proposed amended complaint would demand additional fact and expert depositions to defend against potential evidence suggesting they operated a mill-like structure, and raised concerns that it would disrupt the trial schedule. The Court shares the SpecialtyCare Defendants' concern that allowing the proposed amended complaint would add to the complexity of the case.
Oral Arg. Tr. 38:3-4, 51:8-22.
At Oral Argument, the Court was not convinced that additional discovery would "derail[] the trial date." Id. 53:6-9.
V. CONCLUSION
Punitive damages in a medical negligence case are governed by 18 Del. C. § 6855. The facts alleged in the proposed amended complaint fail to meet the high bar required under the statute because they do not support a claim that the injury to H.B. was maliciously intended or the result of willful or wanton misconduct. Because the proposed amended complaint is legally insufficient, justice does not require granting the Plaintiffs' Motion. The Plaintiffs' Motion to Amend Complaint to Add Punitive Damages Claim is DENIED without prejudice. However, should the Plaintiffs uncover evidence that actually reveals malicious intent or willful or wanton misconduct before the close of discovery, they have leave to renew their Motion.
See Hunt ex rel. Hamm v. Brandywine Nursing and Rehab. Ctr., Inc., 2000 WL 1211558, at *3 (Del. Super. Aug. 18, 2000) ("If Plaintiffs uncover evidence that actually reveals willful and wanton misconduct, they have leave to renew their motion.").
IT IS SO ORDERED.