I.
Notwithstanding an emerging trend to the contrary, in Delaware, a plaintiff still must establish that a defendant owed her a duty of care in order to state a prima facie claim of negligence.
This opinion marks the second occasion the Court has considered whether certain defendants in this class action, each of whom are Delaware physicians or groups of Delaware physicians, owed a duty to class plaintiffs to protect them from sexual abuse allegedly perpetrated against them by their pediatrician, also a Delaware physician and now a convicted sex offender. After considering a motion for judgment on the pleadings with respect to an earlier version of the class action complaint, the Court determined that the complaint failed to allege facts, even if proven, that would trigger a tort duty of care on the part of the then-moving defendants to report the pediatrician to law enforcement or regulatory authorities, or otherwise to protect the pediatrician’s patients from harm.
The defendants’ refrain is a familiar one — the class plaintiffs have not and cannot plead facts that are sufficient to impose upon the defendants a duty to act for the protection of individuals with whom they had no “special relationship,” as that term has been defined and interpreted under Delaware law. Having carefully reviewed the motions and responses, the Court again must agree. The class plaintiffs have failed to plead facts (or otherwise to suggest that such facts exist) that would justify the imposition of a duty upon these defendants to act for the benefit and protection of the class when no “special relationship” exists between the defendants and the class plaintiffs or the defendants and the offending pediatrician. To the extent the claims in the amended complaint raise claims of nonfeasance, the viability of which depends upon the existence of such a “special relationship,” the motions to dismiss must be GRANTED with prejudice.
But the class plaintiffs have made new allegations that some of the defendants (those affiliated with the Medical Society of Delaware) affirmatively committed to undertake a duty to protect the pediatrician’s patients from harm. These allegations, if proven, would be sufficient to trigger a duty on the part of the physicians/defendants who undertook to protect patients to discharge that duty with reasonable care. The motions to dismiss as to these claims, therefore, must be DENIED.
The class plaintiffs also have submitted evidence and factual argument in response to the motions to dismiss that suggest other defendants (physicians in the Sussex County medical community) either maintained doctor-patient relationships with some of the class plaintiffs, or took affirmative steps to refer some of the class plaintiffs to the offending pediatrician, when they knew or should have known that the pediatrician was sexually abusing his patients. While the amended complaint, at best, only alludes to these facts, the extraneous evidence and briefing sub
II.
Plaintiff, Jane Doe 30, is a child born on June 17, 1997, and a former patient of Earl B. Bradley, M.D. (“Dr. Bradley”), a Delaware licensed physician who specialized in pediatric medicine.
Defendant, Beebe Medical Center, Inc. (“Beebe”), is a hospital operating in Lewes, Delaware. It is alleged that Beebe employed Dr. Bradley as a staff physician and Chief of Pediatrics between 1994 and 1999, despite knowing that he was the subject of a prior complaint of improper sexual contact with a young patient in Pennsylvania.
Defendant, Medical Society of Delaware (“Medical Society”), is a voluntary, non
Defendant, James P. Marvel, M.D. (“Dr. Marvel”), is a Delaware physician, a member and past president of the Medical Society, and a former member of the PHC (in 2004).
Defendant, Carol A. Tavani, M.D. (“Dr. Tavani”), is a Delaware physician, a member of the Medical Society and a former long-serving chairman of the PHC.
Defendant, John J. Ludwicki, M.D. (“Dr. Ludwicki”),
Defendants, Lowell F. Scott, Jr., M.D. (“Dr. Scott”)
[REDACTED]
[REDACTED] Indeed, Dr. Scott had described Dr. Bradley as a “pedophile” to other physicians as early as 2001.
Class plaintiffs allege that as a direct and proximate result of each defendants’ failure to report Dr. Bradley’s unprofessional and/or abusive conduct to appropriate authorities, “an estimated hundreds of Bradley’s patients and their parents suffered damage.”
III.
All defendants except Beebe have moved to dismiss the Amended Complaint. In each motion, the defendants raise three common arguments: (1) they cannot be held liable for the tortious acts of Dr. Bradley because they never entered into any legally significant “special relationship” with Dr. Bradley or his patients that would trigger a duty to control Dr. Bradley’s conduct or protect his patients within
Well after the motions had been submitted for decision, the Court stumbled upon Restatement Second § 324A, a section entitled “Liability to Third Person for Negligent Performance of Undertaking.”
In each of their responses, class plaintiffs reiterate that: (1) each defendant’s unique relationship with Dr. Bradley or his patients, when considered against the backdrop of the MPA and the CAPA, was of a nature that would trigger a common law duty under Restatement Second §§ 314, 314A, 315 and 319 to report Dr. Bradley’s misconduct to appropriate authorities; (2) the facts as plead in the
IV.
All of the defendants have moved to dismiss under Delaware Superi- or Court Rule of Civil Procedure 12(b)(6). When considering a motion to dismiss, the Court must read the complaint generously, accept all of the well-plead allegations contained therein as true, and draw all reasonable inferences in a light most favorable to the non-moving party.
Generally, the “universe of facts” considered in a motion to dismiss are those plead within the confines of the complaint.
Delaware courts follow the federal practice when determining whether the presentation of matters outside of the pleadings will convert a motion to dismiss to a motion for summary judgment.
The extraneous matters presented to this Court include five documents attached as exhibits to the amended complaint,
Likewise, the Court will not consider the extraneous facts relied upon by the moving defendants to contest the facts plead by class plaintiffs in the amended complaint. While it is true that the Court need not accept conclusory assertions as true when deciding a motion to dismiss, the Court will not adjudicate contested issues of fact on a motion to dismiss, nor will it deem a pleading inadequate under Rule 12(b)(6) simply because a defendant presents facts that appear to contradict those plead by the plaintiff.
Having determined that it will not consider the extraneous matters when deciding the motions to dismiss, the Court still must determine whether the additional facts should be ignored altogether or whether some proper purpose may be served by taking notice of those facts that class plaintiffs have not plead within their amended complaint, but have offered in support of their argument that there are factual bases for their claims. After carefully considering the matter, and with the benefit of the parties’ supplemental submissions on this issue, the Court has determined that it is appropriate to consider the extraneous matters in deciding whether to grant class plaintiffs further leave to amend their complaint.
The Court begins by noting that each party, except for the Medical Society defendants,
When making a futility determination based on a proposed amendment, the court accepts as true all of the well-plead facts presented therein.
For the reasons discussed below, the Court has determined that class plaintiffs have failed to state a claim of nonfeasance against the Medical Society defendants, and that any amendment in which class plaintiffs might again attempt to state such claims would be futile. With regard to Drs. Berg, Scott and Ludwicki, the Court has determined that the amended complaint fails to state viable claims against each of these defendants and that the claims, as plead, must therefore be dismissed. The extraneous facts submitted by the parties, however, suggest that at least some of the class plaintiffs may be
Y.
To prevail on a negligence claim, a plaintiff must prove that: a defendant owed her a duty of care; the defendant breached that duty; and the breach proximately caused an injury.
Class plaintiffs have had two chances to state viable claims against the Medical Society defendants so it is appropriate to address their motion to dismiss first. Next, the Court will consider the claims against the remaining defendants, the so-called “individual defendants,” and Dr. Marvel in his capacity as a Beebe staff physician.
A. The Claims Against The Medical Society Defendants
1. The Nonfeasance Claims Under Restatement Second § 315
As explained in Bradley I, “[generally, to determine whether one party owed another a duty of care, [Delaware courts] follow the guidance of the Restatement (Second) of Torts.”
In the case of misfeasance, the party who does an affirmative act owes a general duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the [affirmative] act. But, in the case of nonfeasance, the party who merely omits to act owes no general duty to others unless there is a special relation between the actor and the other which gives rise to a duty. 84
The “no duty to act” rule, expressed in Restatement Second § 314, is not abated by either the gravity of the risk of harm confronting the “other” or the defendant’s awareness of that risk. As our Supreme Court stated in Riedel, “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not itself impose upon him a duty to take such action.”
In their original complaint, class plaintiffs’ claims against the Medical Society defendants rested upon allegations that these defendants had information and reports of unprofessional conduct and suspected abuse against children perpetrated by Dr. Bradley yet failed to report that information to the Board or other appropriate authorities.
The Restatement Second has codified exceptions to, and so-called “special applications” of, the general “no duty to act” rule in §§ 314A and 315 through 319.
a. Class Plaintiffs Have Not Plead Facts To Justify The Imposition of a Duty Upon the Medical Society Defendants Under Restatement Second § 315(a)
Section 315(a) directs the Court to consider the relationship between the Medical Society defendants (“the actor”) and Dr. Bradley (“the third person”) with reference to §§ 316-319, each of which define the only relationships that will trigger a duty to act for the protection of another.
In their amended complaint, class plaintiffs allege very broadly that the Medical Society defendants had a “special rela
b. Class Plaintiffs Have Not Plead Facts To Justify the Imposition of a Duty Upon the Medical Society Defendants Under Restatement Second § 315(b)
Section 315(b) directs the Court to consider the relationship between the Medical Society defendants (“the actor”) and Dr. Bradley’s patients (“the other[s]”) as further defined in §§ 314A and 320.
Unlike the comment to § 315(a), however, which directs the Court to consider only §§ 316-319 when determining whether the requisite “special relationship” exists to trigger a duty under § 315(a), a “Caveat” to § 314A provides that “[t]he Institute expresses no opinion as to whether there may not be other relations [similar to those expressly recognized in this Section] which impose a similar duty.”
In addition to relations that might arise from the Medical Society defendants’ various roles and activities within the organization, class plaintiffs have also argued that the Medical Society defendants’ status as statutorily mandated reporters of suspected child abuse creates a “special relationship” between them, as reporters, and Dr. Bradley’s patients, the putative beneficiaries of the reports that allegedly should have been, but were not, made. In Bradley I, this Court held that a violation of the MPA or CAPA, alone, would not support the imposition of a common law duty of care upon the Medical Society defendants when the statutes could not form the basis of a claim of negligence per se.
Mark Twain once cleverly observed in A Connecticut Yankee in King Arthur’s Court, when describing a companion of the
In Bradley I, this Court held that “the statutory obligation to report [suspected child abuse] does not equate to a common law duty to act.”
The applicable provision of the Restatement Second is § 874A, entitled “Tort Liability for Violation of Legislative Provision.”
It is worthwhile to note that courts in other jurisdictions have recognized new affirmative tort duties based solely upon statutory language purportedly drawn from concepts set forth in the Restatement Second.
The comments to the Restatement Third reflect that the body of work housed within those now-published volumes is intended to advance a new approach to torts with respect to the interaction of the common law and statutory law.
2. The “Negligent Undertaking” Claim Under Restatement Second § 323
Class plaintiffs argue that the Medical Society defendants undertook to render services to them by: (1) promulgating aspirational principles for the organization; and (2) investigating -and considering Ms. Barnes’ reports regarding Dr. Bradley.
a. The Medical Society’s By-Laws Do Not Constitute an “Undertaking” To Protect The Class Plaintiffs
In their amended complaint, class plaintiffs allege that the Medical Society has stated in its aspirational principles of membership that its members will “strive to expose physicians deficient in character
The degree of action or inaction required to constitute a § 323 “undertaking” ranges across courts from a mere promise to act to a promise coupled with an affirmative act in performance of the promise.
b. The Medical Society Made No Other § 323 Undertaking To The Class Plaintiffs
Class plaintiffs argue that, under Restatement Second § 323, the Medical Society defendants assumed liability for the harm to Dr. Bradley’s patients when they undertook to review Ms. Barnes’ concerns regarding her brother’s conduct and mental status. There are several structural problems with class plaintiffs’ effort to invoke § 323 under this scenario, even if the Court assumes that the Medical Society defendants’ response to Ms. Barnes’ reports qualified as an undertaking. Specifically, class plaintiffs’ have failed to plead: (1) that the Medical Society defendants directed their alleged undertaking to class plaintiffs (as “the other” claiming a right to protection);
3. The “Negligent Undertaking” Claim Under Restatement Second § 324A
As noted above, upon reviewing the arguments of the parties with respect to Restatement Second § 323, the Court was drawn to the provisions of Restatement Second § 324A which, on its face, appeared to fit more squarely within the facts plead in the amended complaint regarding the Barnes reports.
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.146
The Court will address these elements se-riatim.
As is the case with a claim under § 323, the plaintiff seeking to invoke § 324A must first establish that the defendant has “undertake[n]” to render services to “another.”
The Medical Society defendants argue that class plaintiffs’ allegations fall short of pleading an actionable undertaking because: (1) they have alleged, at best, a mere promise to act when they were required, under § 324A, to plead both a promise and some effort to perform that promise; and (2) any “undertaking” that may have been initiated was for the express benefit of Dr. Bradley, the impaired physician who was the subject of Ms. Barnes’ report, not Dr. Bradley’s patients.
It does not appear that Delaware courts have weighed in on the question of whether a promise alone will satisfy the “undertaking” element of §§ 323 or 324A.
The Medical Society defendants’ argument that any undertaking they may have initiated was directed to Dr. Bradley and not to his patients may well prove to be fatal to plaintiffs’ § 324A claim on a summary judgment record but it is premature on a motion to dismiss. Class plaintiffs have adequately plead that the Medical Society defendants initiated an undertaking, directed to Ms. Barnes, to protect Dr. Bradley’s patients from his ongoing misconduct (including improper
b. The “Increased Risk of Harm”
Having determined that class plaintiffs have adequately plead an “undertaking,” the Court next must consider whether they have adequately plead the additional elements of a § 824A claim as alternatively set forth in §§ 324A(a) through (c). The first of these alternative elements poses the question whether the Medical Society defendants’ failure to exercise “reasonable care” in the performance of the undertaking “increase[d] the risk of [] harm” to class plaintiffs. For purposes of § 324A, “[a]n increased risk means some physical change to the environment or material alteration of the circumstances.”
To allege an increased risk of harm under § 324A, a plaintiff must do more than allege that the defendant’s failure to perform the undertaking allowed an existing hazard to continue unabated.
The test is not whether the risk was increased over what it would have been if the defendant had not been negligent. Rather, a duty is imposed only if the risk is increased over what it would have been had the defendant not engaged in the undertaking at all. This must be so because the preliminary verbiage in Section 324A assumes negligence on the part of the defendant and further assumes that this negligence caused the plaintiffs injury. If we were to read subsection (a) as plaintiffs suggest, ie., that a duty exists where the negligence increased the risk over what it would have been had the defendant exercised due care, a duty would exist in every case. Such a reading would render subsections (b) and (c) surplusage and the apparent purpose of all three subsections to limit the application of the section would be illusory.162
c. The Assumption of Another’s Duty
Section 324A(b) would support the imposition of a duty upon the Medical Society defendants if, as a matter of plead facts and as a matter of law, the Court could conclude that these defendants somehow had “undertaken to perform a duty owed by [Ms. Barnes] to the [class plaintiffs].”
d. Reliance Upon The Undertaking
Section 324A(c) provides that a defendant will be held liable if either the person to whom the defendant’s undertaking was made, or the third person whose protection is the subject of the undertaking, suffers harm as a result of “reliance ... upon the undertaking.”
4. Class Plaintiffs Have Not Plead Facts That Would Support A Claim Under Delaware’s Medical Negligence Statute
Lastly, class plaintiffs allege in the amended complaint that the failure of Drs. Marvel and Tavani “to report professional misconduct of which they knew or should have known to police or professional regulation authorities” was a breach of their common law duties as health care providers and, thus, constituted medical negligence.
5. Statutory Peer Review Immunity
Since the Court has determined that class plaintiffs have stated a viable claim of negligence against the Medical Society defendants under Restatement Second § 324A(c) arising from their handling of Ms. Barnes’ reports, the Court must now consider whether the allegations within the amended complaint fail as a matter of law
Delaware’s Medical Peer Review Statute provides in pertinent part:
[T]he Medical Society of Delaware, their members, and the members of any committees appointed by the ... Society; ... and members of other peer review committees or organizations whose function is the review of medical records, medical care, and physicians’ work, with a view to the quality of care ... are immune from claim, suit, liability, damages, or any other recourse, civil or criminal, arising from any act, omission, proceeding, decision, or determination undertaken or performed, or from any recommendation made, so long as the person acted in good faith and without gross or wanton negligence ... with good faith being presumed until proven otherwise, and gross or wanton negligence required to be shown by the complainant.179
Class plaintiffs allege that the Medical Society defendants received Ms. Barnes’ report in their positions as peer reviewers within the Medical Society’s PHC.
As discussed above, the pleading standard on a motion to dismiss in Delaware is minimal.
6. The Court Will Entertain A Motion For Summary Judgment On The Section 324A Claim And Peer Review Immunity
As discussed at some length in the Court’s analysis of the standard of review, the Court has elected to consider this motion under the standard of review contemplated by Rule 12(b)(6) notwithstanding that the parties have submitted matters beyond the pleadings in their briefs on the motion. The Court is mindful that among the extraneous materials submitted are full or excerpted portions of deposition transcripts from Ms. Barnes, Dr. Tavani and Dr. Marvel. In addition, the Court has received meeting minutes of the PHC (attached to the amended complaint) reflecting the committee’s handling of Ms. Barnes’ report of her brother’s behavior. This evidence may well complete the factual record relating to the extent and nature of the Medical Society defendants’ alleged undertaking to Ms. Barnes, and the extent to which (if at all) she relied upon the undertaking, although the Court has no way of knowing this for sure. In any event, for the reasons already stated in the standard of review analysis, and for the reasons discussed below, the Court has declined to consider the extraneous matters at this time.
For their part, the Medical Society defendants have relied upon the extraneous evidence rather extensively in their submissions and they urge the Court to consider all of it in determining whether the negligence claims against them can move forward. There is, of course, a ring of efficiency in this proposal. And yet, through no fault of anyone, the process of deciding the pending motions has been anything but efficient. The Court has
With this said, it remains the Court’s desire to determine which of class plaintiffs’ claims will proceed to trial, and which will not, as efficiently and expeditiously as practicable under the circumstances. Accordingly, if the Medical Society defendants believe that the factual record is adequate to allow them to seek summary judgment on the § 324A claim and/or then-peer review immunity defense, they may do so now and, if they wish, they may rely upon and/or incorporate some or all of their previous filings in connection with their motions to dismiss.
B. The Claims Against The Individual Defendants And Dr. Marvel In His Capacity As A Staff Physician At Beebe
1. The Nonfeasance Claims Under Restatement Second § 315
Class plaintiffs have alleged that each of the individual defendants, and Dr. Marvel while a staff physician at Beebe, failed to take “appropriate action” when faced with knowledge of Dr. Bradley’s misconduct.
a. Class Plaintiffs’ Nonfeasance Claims Against Drs. Ludwicki, Scott and Marvel
Although there are subtle differences in the allegations directed against
Whether class plaintiffs argue in terms of §§ 315(a) or (b), the types of professional relationships they have alleged in their amended complaint between either Dr. Bradley or his patients and the individual defendants and Dr. Marvel are not of a kind that will support viable claims of negligence under Delaware law. As discussed at length above with respect to the Medical Society defendants, the relationships that will trigger a duty to act must fit within the purview of the Restatement Second, and must be supported by factual allegations that show more than defendants’ knowledge of misconduct by Dr. Bradley or potential harm to his patients.
The fact that Dr. Ludwicki, Dr. Scott or Dr. Marvel may have been professional colleagues and/or co-employees with Dr. Bradley does not indicate that they had any means of control over him or a tort duty to protect his patients. In fact, this Court has previously determined that “the relationship that exists between and among physicians licensed to practice within Delaware, without more, ... is not sufficient to trigger a § 315 duty.”
b. Class Plaintiffs’ Nonfeasance Claims Against Dr. Berg
Class plaintiffs have similarly alleged that Dr. Berg’s professional relationship with Dr. Bradley was “special” for purposes of § 315.
[REDACTED]
In the amended complaint, class plaintiffs allege that Dr. Ludwieki, Dr. Scott and Dr. Berg assumed a duty to class plaintiffs when they undertook to abide by the principles of the Medical Society.
In briefing and at oral argument, class plaintiffs provided extraneous information to the Court to argue that Dr. Ludwieki and his staff undertook to render services to class plaintiffs when someone in his office called the police to report a complaint received from a former Bradley patient.
The flaw in class plaintiffs’ § 323 claim based on the alleged patient reports to Dr. Ludwicki’s staff reveals a pattern in class plaintiffs’ overall approach to § 323— they have once again failed to identify an actionable “undertaking” directed to either the reporting patients or Dr. Bradley’s other patients. Rather, it appears that Dr. Ludwicki’s staff received two reports of potential abuse from the mothers of two former Dr. Bradley patients and then, on their own initiative, contacted the police to provide the contact information for one of the mothers.
Class plaintiffs’ § 323 claims against the individual defendants, as plead or as argued from the extraneous evidence, are not viable as a matter of law and cannot be revived by amendment. They must be dismissed with prejudice.
3. Class Plaintiffs’ Claims Of Medical Negligence Against The Individual Defendants
a. Class Plaintiffs Have Failed To Plead Medical Negligence Against the Individual Defendants
Class plaintiffs allege in their amended complaint that the failure of the individual defendants “to report professional misconduct of which they knew or should have known to police or professional regulation authorities” was a breach of their common law duties as health care providers and therefore constituted medical negligence.
b. Class Plaintiffs May Amend Their Complaint Against The Individual Defendants To Attempt To State Claims For Medical Negligence And/Or Common Law Negligence Under Restatement Second § 315(b)
The Court has been presented with extraneous matter indicating that facts may exist to support claims of medical negligence arising from the doctor-patient relationships between Drs. Scott and Berg and some of the class plaintiffs.
In addition to their arguments that Drs. Scott and Berg owed duties of protection to patients they shared with Dr. Bradley, class plaintiffs have also vaguely alleged in their amended complaint that Dr. Lud-wicki “referred patients to Bradley when he was unavailable.”
The Court recognizes that the possible negligence claims against the individual defendants that are the subject of the Court’s order granting leave to amend are claims that rest with individual plaintiffs (perhaps very few) within the class, not with the entire class as currently certified. What impact, if any, these individual claims might have on the current class action status of this litigation has not been considered here. Such consideration shall await any amended complaints that might be filed and any appropriate motion practice that might be initiated in response to such filings.
VI.
Based on the foregoing, the Medical Society defendants’ motion to dismiss is GRANTED in Part (with prejudice) and DENIED in Part (as to claims based on Restatement Second § 324A(c)). The motions to dismiss brought by Dr. Lud-wicki, Dr. Scott and Dr. Berg are GRANTED and the amended complaint as to them is dismissed in part with prejudice and in part without prejudice. As to any claim of nonfeasance under Restatement Second § 315(a) arising from an alleged “special relationship” between the individual defendants and Dr. Bradley, the amended complaint is dismissed with prejudice as the Court is satisfied, as a matter of law, that no such relationship existed. As to claims of medical negligence that might be brought by patients of the individual defendants, or claims of common law negligence that might be brought by these patients under Restatement Second § 315(b) as specified within this opinion, the amended complaint is dismissed without prejudice and with leave given to these individual plaintiffs either to amend the class action complaint or to file separate complaints to assert these claims as they deem appropriate, in accordance with this opinion, within thirty (30) days of this order.
IT IS SO ORDERED.
Notes
. See Weinrib, Duty and the Structure of Negligence. The Passing of Palsgmf?, 54 Vand. L.Rev. 803 (April, 2001) (noting that the then-proposed Restatement (Third) of Torts, now adopted in whole or in part in several jurisdictions, purported to render "duty [ ] a non-issue” in the negligence calculus); Riedel v. ICI Americas, Inc.,
. At the time the motion for judgment on the pleadings with respect to the first complaint was filed, many of the defendants had not yet entered appearances in this litigation. More have done so now and they have added their motions to the renewed motions to dismiss that have been filed by the defendants involved in the first round of motion practice.
.Am. Compl. ¶¶ 1, 2. When deciding a motion to dismiss pursuant to Delaware Superior Court Rule of Civil Procedure 12(b)(6), all well-plead allegations must be accepted as true. See Spence v. Funk,
. Am. Compl. at 2 (Nature of the case).
. Id. The class was certified by stipulated order without objection from any defendant. As will be discussed below, this opinion may well have an impact on the manner in which the class is constituted.
. Id. at ¶ 17.
. Id. at ¶¶ 20-21.
. Id. at ¶ 22.
. Id.
. Id. at ¶ 7.
. Id.
. See Medical Society Defs.' Mot. To Dismiss ("Med Society Defs.’ MTD”) at 3 n. 4, D.I. 36726267 (Mar. 28, 2011) (citing 24 Del. C. § 1701 et seg.). See also 24 Del. C. § 1710(a) ("The Board of Medical Licensure and Discipline has the sole authority in this State to issue certificates to practice medicine and is the State’s supervisory, regulatory, and disciplinary body for the practice of medicine.”).
. See Am. Compl. ¶ 7.
. Id. at ¶ 8.
. Id.
. Id. at ¶¶ 27, 41.
. Id. at ¶¶ 15, 23, 27, 36, 38-39, 50.
. Id. at ¶¶ 23, 27, 40.
. Id. at ¶ 9.
. Id. at ¶¶ 29-39, Exs. A, B.
. Id. at ¶¶ 31-35, 39, Ex. C.
. Id. at ¶ 36.
. Id.
. See id. at Exs. A, B ("Since [Dr. Bradley] has been in his own practice, [] there has been a noticeable deterioration in Dr. Brad
. Id. at ¶ 39, Ex. C ("The physician will likely not be cooperative with any attempt to evaluate him.... It is the Committee's feeling that it will not be productive to approach the physician and that the matter would best initially be addressed by the BMP.”).
. Id. at ¶¶ 40-41.
. Any reference to Dr. Ludwicki also includes Defendant, Pediatric and Adolescent Center in Lewes, Chartered ("PAC”), Dr. Lud-wicki’s medical practice. Class plaintiffs have alleged that PAC is legally responsible for any negligence of Dr. Ludwicki arising in the course and scope of his employment with PAC pursuant to respondeat superior principles.
. Am. Compl. ¶¶ 12, 19, 48.
. Am. Compl. ¶¶ 12, 19, 48; Plaintiffs’ Answering Brief in Opposition to the Ludwicki Defendants’ Motion to Dismiss ("Pis.' Opp. to Ludwicki”) at 6, 9, D.I. 37550408 (May 12, 2011) (citing the deposition transcript of John J. Ludwicki, M.D. ("Ludwicki Dep.” at 13, 55)). When the Court refers to materials outside of the amended complaint, it does so solely to state the factual allegations the Court will consider later in this opinion when determining whether to grant leave to amend the complaint and the extent to which amendments would or would not be futile. See Del.Super. Ct. Civ. R. 15; Dickens v. Costello,
. Am. Compl. ¶ 48; Pis.’ Opp. to Ludwicki at 6 (citing Ludwicki Dep. at 9-11).
. Am. Compl. ¶¶ 48, 103.
. Pis.’ Opp. to Ludwicki at 10-11 (citing the deposition transcript of Kelly S. Phillips, R.N. ("Phillips Dep.”) at 27; Ludwicki Dep. at 153-55).
. Am. Compl. at ¶ 45; Pis.’ Opp. to Ludwicki at 12-14 (citing Ludwicki Dep. at 107-08; Phillips Dep. at 30-43).
. Pis.' Opp. to Ludwicki at 14 (citing Phillips Dep. at 42-43).
. Am. Compl. at ¶¶ 46, 48.
. Id. atOT 23, 49.
. Any reference to Dr. Scott also includes Defendant, Lowell F. Scott, M.D., P.A., Dr. Scott's medical practice. Class plaintiffs have alleged that Scott, P.A. is legally responsible for any negligence of Dr. Scott arising in the course and scope of his employment with the medical practice pursuant to respondeat superior principles.
. Am. Compl. ¶¶ 103, 111; Plaintiffs’ Opposition to Defendant Berg’s Motion to Dismiss (“Pis.' Opp. to Berg”) at ¶ 4, D.I. 39756117 (Sept. 12, 2011) (citing the deposition transcript of Nicholas Berg, M.D. ("Berg Dep.” at 11, 17, 20 (Ex. A))).
. Defendant Lowell F. Scott, JR., M.D.’s Motion to Dismiss at ¶ 5, D.I. 38480739 (July 1, 2011) (citing the deposition transcript of Lowell F. Scott, Jr., M.D. ("Scott Dep.”) at Ilia).
. Plaintiffs’ Opposition to Defendant Scott’s Motion to Dismiss ("Pis.’ Opp. to Scott”) at ¶ 4, D.I. 39755063 (Sept. 12, 2011) (citing Scott Dep. at 11-12).
. Pis.’ Opp. to Berg at ¶ 4 (citing Berg Dep. at 12, 20-21, 36-39).
. Id. at ¶ 46.
. Id. at ¶¶ 23, 26, 49.
. Id. at ¶¶ 4, 64.
. See 18 Del. C. § 6801.
. See 24 Del. C. § 1731A (making it "an affirmative duty” for persons certified to practice medicine, licensed healthcare providers, the Medical Society, and all healthcare institutions and agencies in the State to report: “information ... [that] indicates that a person certified and registered to practice medicine in this State is or may be guilty of unprofessional conduct or may be unable to practice medicine with reasonable skill or safety to patients by reason of mental illness or mental incompetence; physical illness ... or excessive use or abuse of drugs, including alcohol”).
. See 16 Del. C. § 903 ("Any person, agency, organization or entity who knows or in good faith suspects child abuse or neglect shall make a report in accordance with § 904 of this title [to the Department of Services for Children]. For purposes of this section, "person” shall include ... any physician, any other person in the healing arts including any person licensed to render services in medicine, osteopathy or dentistry, any intern, resident, nurse, school employee, social worker, psychologist, medical examiner, hospital, health care institution, the Medical Society of Delaware or law-enforcement agency.”).
. See Doe v. Bradley,
. Restatement (Second) Torts § 324A.
. In re Gen. Motors (Hughes) S'holder Litig.,
. Lagrone,
. In re Gen. Motors (Hughes) S’holder Litig.,
. Del.Super. Ct. Civ. R. 9(b). See, e.g., Browne v. Robb,
. State Farm Fire & Cas., Co. v. Gen. Elec. Co.,
. Id. (quoting Riggs Nat’l Bank v. Boyd,
. See Malpiede v. Townson,
. Del.Super. Ct. Civ. R. 12(b).
. Id. See also Del.Super. Ct. Civ. R. 56.
. See, e.g., In re Santa Fe Pac. Corp. S'holder Litig.,
. See 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1366 (3d ed. 2011) ("As the language of the rule suggests, federal courts have complete discretion to determine whether or not to accept the submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.”). See also In re Gen. Motors (Hughes) S'holder Litig.,
. Furman v. Del. Dep't of Transp.,
. See In re Gen. Motors (Hughes) S'holder Litig.,
. Here, class plaintiffs have incorporated by reference into the amended complaint two versions of a letter from Ms. Barnes to the Medical Society, PHC meeting minutes, a letter from Dr. Bradley's practice partner, Melvin L. Morse, M.D., to multiple recipients, and a generic excerpt from the Delaware application for a renewal of a medical license. See Am. Compl. at Exs. A-E.
. It has generally been recognized that "[e]i-ther the pleader or the moving party or both may bring the conversion provision into operation by submitting matter that is outside the challenged pleading.” J.L. v. Barnes,
. Lagrone,
. See, e.g., Malpiede v. Townson,
. Kost v. Kozakiewicz,
. As discussed below, the Medical Society defendants will not be affected by the Court’s futility analysis and, therefore, were not asked to provide supplemental briefing on this issue.
. See Plaintiffs’ Memorandum of Law in Response to the Court's Letter of November 15, 2011 at 2, D.I. 41194929 (Dec. 2, 2011) ("The Court is not required to convert the motions, but is permitted to consider the extraneous facts when performing a futility analysis.”); Supplemental Memorandum of Law in Support of the Ludwicki Defendants' Motion to
.Del.Super. Ct. Civ. R. 15(a).
. Cartanza v. Lebeau,
. Id.
. Id. at *3 (citing Zimmerman v. Braddock,
. Id.
. Id.
. See, e.g., Smith v. Horizon Lines, Inc.,
. Del.Super. Ct. Civ. R. 1.
. Price v. E.I. DuPont de Nemours & Co.,
. Id. (citations omitted).
. W. Page Keeton et al., Prosser & Keeton on Torts § 53 (Keeton ed., 5th ed.1984) (hereinafter "Prosser & Keeton on Torts”); 57A Am. Jur.2d Negligence § 81 (2d ed.2004). See also Restatement (Second) Torts § 4 ("The word 'duty' is used throughout [this] Restatement [ ] to denote the fact that the actor is required to conduct himself in a particular manner at the risk that if he does not do so he becomes subject to liability to another to whom the duty is owed for any injury sustained by such other, of which that actor's conduct is the legal cause.”).
. Kuczynski v. McLaughlin,
. Riedel,
. See, e.g., Restatement (Second) Torts §§ 314, 284, 302. See also Radosevic v. Va. Int. College,
The lines between malfeasance, misfeasance and nonfeasance are indistinct and, consequently, confusing at best. "Malfeasance” is the doing of an act which a person ought not to do at all; “misfeasance” is the improper doing of an act which a person might lawfully do; and "nonfeasance” is the omission of an act which a person ought to do.) (internal quotations and citations omitted).
. Price,
. Riedel,
. See Bradley I,
. Id. at *4.
. Id. at *6.
. See, e.g., Am. Compl. ¶¶ 40, 42, 96-101.
. Class plaintiffs also present new allegations of misfeasance (a failure reasonably to perform their assumption of affirmative duties to protect class plaintiffs) and medical negligence (a failure to discharge their duty to provide competent medical care to Dr. Bradley’s patients). The Court will address these claims separately below.
. See Plaintiffs' Answering Brief in Opposition to the Medical Society Defendants’ Motion to Dismiss ("Pis.’ Opp. to Medical Society”) at 15-22, D.I. 37295997 (Apr. 28, 2011).
. See Riedel,
. Restatement (Second) Torts § 315 cmts. a-c (referring to the "special relationships” described in Restatement Second §§314 and 316 through 319).
. See Bradley I,
. Restatement (Second) Torts § 315 provides: "There is no duty to control the conduct of a third person as to prevent him from causing physical harm to another unless: (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.”
. See Restatement (Second) Torts § 315 cmt. c. The comments to §§ 315(a) and 316-319 indicate that these are the only relationships between actor and third person that will trigger a duty to act.
. The parties agree that § 316 ("Duty of Parent to Control Conduct of Child”), § 317 ("Duty of Master to Control Conduct of Servant”), and § 318 ("Duty of Possessor of Land or Chattels to Control Conduct of Licensee”) are inapplicable.
. Restatement (Second) Torts § 319 (emphasis supplied).
. See Furek v. Univ. of Del,
. Am. Compl. ¶ 97.
. See id. ¶ 99(a)-(e).
. Id. Class plaintiffs more explicitly allege in their response that: "[b]y way of their (Medical Society's] own By-Laws, assurances to Barnes, and discussion and subsequent determinations regarding Barnes’ report at the November 2004 meeting of the Physicians' Health Committee, the Medical Society Defendants 'took charge' over Bradley.” Pis. Opp. to Med. Society at 21.
. See 24 Del. C. § 1710(a) (giving the Board the sole authority to discipline certified persons in the practice of medicine).
. Restatement (Second) Torts § 315 cmt. c.
. Restatement (Second) Torts § 320.
. See Restatement (Second) Torts § 314A (listing: common carrier/passenger, innkeeper/guest, possessor of land/invited public, and one who takes custody of another).
. Restatement (Second) Torts § 314A caveat. See also Restatement (Second) Torts § 314A cmt. b ("The relations listed are not intended to be exclusive, and are not necessarily the only ones in which a duty of affirmative action for the aid or protection of another may be found.”).
. Am. Compl. ¶ 7.
. Restatement (Second) Torts § 314A cmt. b.
. Bradley I,
. See, e.g., Am. Compl. ¶¶ 59-64, 97, 100, 103, 104, 112. Pis.’ Opp. to Med. Society at 17 ("The Medical Society Defendants' special relationship with Bradley ... is premised on a myriad of facts.... Specifically, the Medical Society Defendants: ... Are statutorily-mandated by Delaware’s Medical Practice Act to report physicians guilty of unprofessional conduct ... to the Board of Medical Practice.”) (citing non-Delaware case law for support). See also id. at 22 (“[T]he Child Abuse Prevention Act specifically names the Medical Society as an entity required to report child abuse or neglect.... The implication from being singled out ... is that the [Medical Society Defendants] are in an extraordinary position to notice and report child abuse.”).
.See id.
. Mark Twain, A Connecticut Yankee in King Arthur’s Court (Webster & Co. 1889).
. Bradley I,
. Id. at *8.
. Id. (citing Riedel,
. Restatement (Third) Torts § 38 ("When a statute requires an actor to act for the protection of another, the court may rely on the statute to decide that an affirmative duty exists and its scope.”).
. Restatement (Third) Torts § 38 History cmt. a ("No provision in the Restatement Second of Torts addressed the role of statutes in supporting the recognition of new affirmative duties in tort.”).
. Restatement (Second) Torts § 874A ("When a legislative provision protects a class of persons by proscribing or requiring certain conduct but does not provide a civil remedy for the violation, the court may, if it determines that the remedy is appropriate in furtherance of the purpose of the legislation and needed to assure the effectiveness of the provision, accord to an injured member of the class a right of action, using a suitable existing tort action or a new cause of action analogous to an existing tort action.”) (emphasis supplied).
. Id.
. See Restatement (Third) Torts § 38 cmt. a ("The Restatement Second of Torts § 874A provided that statutes might play a role in the creation of new claims, but § 874A was directed to statutes that proscribed misfeasance.”) (emphasis supplied). See also id. at Reporters' Notes cmt. a ("[M]ost courts have employed the Restatement Second of Torts § 874A to decide whether a statute proscribing conduct that causes harm of a type that had not been recognized previously as actionable should be the basis for expanding tort
. Bradley I,
. Id. at *16 n. 135 (citing the MPA and CAPA).
. See; e.g., Mammo v. State,
. See Restatement (Third) Torts § 38 Reporters’ Notes cmt. d (citing Spates v. Dameron Hosp. Assn.,
. See, e.g., Sabia v. State,
. Kaho'ohanohano v. Dep't of Human Servs.,
. See Kuczynski,
. Id. (citations omitted).
. Id. (citations omitted).
. See, e.g., Restatement (Third) Torts § 38 cmt. a (explaining that § 38 addresses "the role of statutes in supporting the recognition of new affirmative duties in tort” because "courts regularly confront” this proposition and "[n]o provision in the Restatement Second of Torts [sufficiently] addressed” it); cmt. e (recognizing that courts have rendered inconsistent decisions with regards to imposing affirmative duties based on statutory provisions "and it is difficult to discern any specific rule that emerges from the cases”).
. See Riedel,
. Restatement (Second) Torts § 874A.
. Am. Compl. ¶¶ 116, 121.
. Id. Restatement (Second) Torts § 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) the harm is suffered because of reliance of the other or the third person upon the undertaking.
. Am. Compl. ¶ 116(a) (emphasis supplied).
. Id.
. See Restatement (Second) Torts § 323 cmt. d.
. See, e.g., In re Walt Disney Co. Derivative Litig.,
. See American Medical Association Principles of Medical Ethics, Preamble.
. To the extent class plaintiffs have once again realleged that the existence of the MPA and CAPA, and the physicians’ obligation to abide by them, constitutes an undertaking, the Court again reiterates that “[t]he performance of a statutory mandate alone cannot reasonably be characterized as gratuitous” within the parameters of § 323. See Bradley I,
. See Restatement (Second) Torts § 323 ("One who undertakes ... to render services to another ... for the protection of the other’s person or things, ... is subject to liability to the other for physical harm ....”) (emphasis supplied).
. See, e.g., Am. Compl. ¶ 37 ("Barnes relied on the Medical Society, Tavani and Marvel, and their professional relationship with a physician member of the Society, to take appropriate action to help her brother and protect his patients. As a result of this detrimental reliance and the false assurances she received from Tavani and Marvel, she took no additional action.”); ¶ 116(b) ("Defendant Medical Society assumed a duty to plaintiffs by; ... [m]aking promises and assurances to Barnes ....”); ¶ 121(b) ("Defendants Tavani and Marvel assumed a duty to plaintiffs by: ... [mjaking promises and assurances to Barnes_”).
. See Green v. Unity Sch. of Christianity,
. The Court invited argument from the parties regarding whether class plaintiffs should be permitted to assert a claim under Restatement Second § 324A when their amended complaint makes no reference to that provision and their initial responses to the motions to dismiss did not cite that section. Upon consideration of these arguments, the Court is satisfied that class plaintiffs should be permitted to assert their § 324A claim now. While it is true that their amended complaint refers only to Restatement Second §§315 and 323, it is also true, as class plaintiffs argue, that they need not plead specific provisions of the Restatement Second within their complaint in order to survive a motion to dismiss. See State Farm Fire & Cas. Co. v. Gen. Elec. Co.,
. Restatement (Second) Torts § 324A.
. Id.
. Id.
. See Plaintiffs’ Memorandum of Law Regarding Consideration of Restatement (Second) of Torts § 324A ("Pl.Supp.Mem.”) at 6, D.I. 42172623 (Jan. 27, 2012); Am. Compl. ¶¶ 29-43, 115-124.
. See Supplemental Brief of the Medical Society Defendants In Support of Their Motion to Dismiss the Amended Complaint (“Def.Supp.Br”) at 2-8, D.I. 42181582 (Jan. 27, 2012).
. Having said this, the Court has not found (and the parties have not cited) a single Delaware decision that has applied § 324A to a case where the defendant’s conduct involved only a promise to perform an undertaking (express or implied) without at least some performance of that promise. See, e.g., Mergenthaler v. Asbestos Corp. of America, Inc.,
. Restatement (Second) Torts § 324A caveat.
. See Restatement (Second) Torts § 323 cmt. d & Reporters’ Notes (citing cases in which liability in tort has been based on a bare promise or "relatively trivial and unimportant acts,” as well as "a great many cases which have held, or said, that the bare promise is not enough for tort liability”); Restatement (Second) Torts § 324A cmt. on caveat ("Comments d and e on the Caveat to § 323 are applied to the caveat in this Section, so far as they are pertinent.”); Dan B. Dobbs, The Law of Torts § 320, at 865 (2001) ("When the gratuitous promise is one aimed at the plaintiff's physical safety, contemporary authority does not seem to exclude the duty merely because the defendant has not entered into performance.”) (citing cases); Prosser & Kee-ton on Torts § 56, at 378-79 ("Due to its apparent harshness, [ ], the old rule [requiring some performance] has served chiefly as a point of departure; and very little is required for the assumption of a duty.”).
. Am. Compl. ¶¶ 33, 35, 36, 116, 117, 121, 122.
. Id. at ¶¶ 38-40.
. Id. at ¶¶ 33-36, 38-40, Exs. A-C. See Price,
. Id. at ¶¶ 34-36.
. See Furek,
. Patton,
. See Ricci v. Quality Bakers of Amer. Coop. Inc.,
. Howell v. United States,
. Myers,
. Am. Compl. ¶¶ 16, 22, 56.
. See Patton,
. Restatement (Second) Torts § 324A(b).
. PI. Supp. Mem. at 7 (citing 16 Del. C. § 903 and 24 Del. C. § 1731 A).
. The Court notes that the amended complaint contains no allegation that the Medical Society defendants assumed any duty that may have been owed by Ms. Barnes to Dr. Bradley’s patients.
. Restatement (Second) Torts § 324A(c).
. Id. at cmt. e.
. Am. Compl. ¶ 37. The Court acknowledges that the Medical Society defendants have argued that Ms. Barnes has contradicted this allegation in her deposition testimony. If this is so, the Medical Society defendants may renew the argument in support of a motion for summary judgment (presumably on a complete factual record).
. See Restatement (Second) Torts § 324A(c) cmt. e (“Where the reliance of the other, or of the third person, has induced him to forgo other remedies or precautions against such a risk, the harm results from the negligence as fully as if the actor had created the risk."); Mergenthaler,
. Am. Compl. ¶¶ 65-73.
. 18 Del. C. § 6801, et seq.
. 18 Del. C. § 6801(7) (emphasis supplied).
. 18 Del. C. § 6801(8).
. See, e.g., Murphy v. Godwin,
. See id. (explaining that liability under a theory of negligent nonfeasance must be predicated on an "existing and definite relationship"). See also Spicer v. Osunkoya,
. 24 Dei. C. § 1768.
. 24 Del. C. § 1768(a).
. Am. Compl. ¶¶ 30-37.
. The Court has determined that the only viable claim against the Medical Society defendants is the § 324A claim arising from Ms. Barnes’ reports to the Medical Society defendants in their capacity as peer reviewers. Accordingly, the Court need not address whether the Medical Society defendants are immune from class plaintiffs’ other claims against them.
. 24 Del. C. § 1768(a); Sternberg v. Nanticoke Memorial Hosp., Inc.,
. Am. Compl. ¶ 42 ("The conduct of Tava-ni and Marvel, and the Physicians’ Health Committee, constituted malfeasance, nonfea-sance, and a deliberate and intentional coverup of complaints about a fellow physician who was a threat to his patients.”); ¶¶ 118, 123 ("Defendants!' •..] breach of their common law duty of care constituted negligence, carelessness, recklessness, and wanton conduct.”).
. Cent. Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC,
. Id.
. Del.Super. Ct. Civ. R. 9(b).
. Browne v. Robb,
.Am. Compl. ¶ 42.
. Id. ¶¶ 118, 123.
. See id. ¶¶ 29-43.
. Brown v. United Water Delaware, Inc.,
. See Furman,
. See Del.Super. Ct. Civ. R. 1.
. See Furek,
. Del.Super. Ct. Civ. R. 56(0.
. Am. Compl. ¶¶ 23, 49.
. See Restatement (Second) Torts §§ 282, 284(b), 302, 314; Riedel,
. See Restatement (Second) Torts § 314.
. See Restatement (Second) Torts §§ 315(a) &(b).
. Specifically, class plaintiffs allege that Dr. Ludwicki's "special relationship” with Dr. Bradley arises from the following facts: Dr. Ludwieki is a licensed physician in Delaware; he has held hospital privileges at Beebe; he is a member of the Medical Society; he was a mandatory reporter under the MPA and CAPA; he was informed by parents of Dr. Bradley's former patients that improper touching had occurred; and he was employed by Beebe at the same time and in the same pediatrics practice as Dr. Bradley, which required that they share "on call” duties. See Am. Compl. ¶¶ 12, 15, 19, 23, 45, 48, 50, 103, 105. Class plaintiffs also allege that Dr. Lud-wicki "referred his patients to Bradley when he was unavailable.” See Am. Compl. ¶ 103. The Court will address this last factor — the referral of patients — separately in its discussion of negligent referral.
. Class plaintiffs allege that Dr. Scott’s "special relationship” with Dr. Bradley arises from the following facts: Dr. Scott is a licensed physician in Delaware; he has held hospital privileges at Beebe; he is a member of the Medical Society; he was a mandatory reporter under the MPA and CAPA; he heard reports about Dr. Bradley's misconduct, [REDACTED] and he worked as a co-employee in private practice with Dr. Bradley from 1997 to 2000. See Am. Compl. ¶¶ 10, 15, 24, 25, 47, 50, 103.
. In addition to allegations against Dr. Marvel arising from his role with the Medical Society, class plaintiffs allege that Dr. Marvel's "special relationship” with Dr. Bradley and plaintiffs arises from the following facts: Dr. Marvel is a licensed physician in Delaware; he has held hospital privileges at Beebe; he is a mandatory reporter under the MPA and CAPA; he has served on various committees of Beebe and in its administration; and he was interviewed by the Delaware State Police in connection with an investigation of Dr. Bradley in 2004 or 2005. See Am. Compl. ¶¶ 8, 15, 23, 27, 50, 97.
. See Restatement (Second) Torts § 314.
. See, e.g., Am. Compl. ¶¶ 24-26 (presenting the factual background for Dr. Berg and Dr. Scott’s knowledge of Dr. Bradley’s sexual misconduct [REDACTED]); Am. Compl. ¶ 23 ("Upon information and belief, Marvel, Berg and Ludwieki, as a result of their various relationships with Beebe, knew of allegations of misconduct by Bradley_”); Am. Compl. ¶ 44 ("From the period 2000 to 2009, repeated complaints were made to a number of medical providers concerning Bradley. ... ”); Am. Compl. ¶ 45 ("On several occasions, parents of former Bradley patients complained to staff of Ludwieki concerning improper sexual touching of their children by Bradley.”); Am. Compl. ¶ 47 ("Scott’s knowledge of Bradley’s pedophilia came from the time....”); Am. Compl. ¶48 ("Lud-wicki's knowledge of Bradley’s pedophilia came from the time.... ”).
.To reiterate, as to the alleged special relationship between these physicians and Dr. Bradley, the comments to Restatement Second § 315(a) make clear that the relationships that will give rise to a duty to act to control a third person (in this case Dr. Bradley) "are stated in §§ 316-319.” The relationships between and among physicians does not fit within any of these provisions. See Restatement (Second) Torts § 316 (duty of parent to control child); § 317 (duty of master to control servant); § 318 (duty of possessor of land to control licensee); and § 319 (duty of those in charge of persons having dangerous propensities). The comments to Restatement Second § 315(b) state that the relationships that will give rise to a duty to act to protect another (in this case class plaintiffs) are stated in §§ 314A and 320. See Restatement (Second) Torts § 314A (describing relationships that give rise to a duty to protect — e.g. common carrier/passenger, innkeeper/guest — that strongly suggest that a relationship between a physician and the patients of another physician even within the same medical practice, is not the sort of relationship that would give rise to a duty to act for the protection of that other physician's patient); § 320 (duty of those having "custody of another” — inapplicable to the facts sub judice).
. Bradley I,
. Class plaintiffs allege that Dr. Berg’s "special relationship” stems from the following facts: Dr. Berg is a physician licensed to practice medicine in Delaware; he has hospital privileges at Beebe; he was a member of the Medical Society; and he was an employee in the same medical practice as Dr. Bradley for several years. See Am. Compl. ¶¶ 14, 15, 23, 50, 111.
. Id.
. Am. Compl. ¶ 126.
. Id. See also Restatement (Second) Torts § 323.
. To the extent class plaintiffs have real-leged that the existence of the MPA and CAPA, and the physicians' obligation to abide by them, constitutes an undertaking, the Court has previously decided that "[t]he performance of a statutory mandate alone cannot reasonably be characterized as gratuitous” within the parameters of § 323. See Bradley I,
. Because the individual defendants did not initiate any undertaking to protect class plaintiffs either directly or indirectly, there can be no claim against them under Restatement Second § 324A either.
. See Pis.’ Opp. to Ludwieki at 27.
. Id.
. See Pis. Opp. to Ludwieki at 12-14 (citing Phillips Dep. at 42-43).
. See id.
. Id.
. Am. Compl. ¶¶ 33, 35, 36 (assuring Ms. Barnes that her reports would go through a review process). See Dan B. Dobbs, The Law of Torts § 319, at 860 (2001) ("An undertaking ... is a kind of explicit or implicit promise, or at least a commitment expressed in conduct.”).
. For this reason, a § 324A claim would fail as well.
. Am. Compl. ¶¶ 65-73.
. See Del. C. Ann. tit. 18 § 6801, et seq.
. See 18 Del C. § 6801(4), (7); discussion supra Part V.A.4.
. See, e.g., id. § 6801(7) (defining "medical negligence” as "any tort or breach of contract based on health care or professional services rendered, or which should have been rendered, by a health care provider to a patient ”) (emphasis supplied); id. § 6853 (providing that expert testimony regarding the healthcare provider's “deviation from the applicable standard of care” and "causation of the alleged personal injury or death [of the patient]” is required to sustain a claim of medical negligence).
. See 70 C.J.S. Physicians and Surgeons § 76 (citing cases).
. See, e.g., Ortiz v. Shah,
. See, e.g., Ortiz,
. See 18 Del C. § 6801.
. To the extent class plaintiffs' allegations in the amended complaint indicate that a doctor-patient relationship existed between Dr. Ludwicki and Dr. Bradley's former patients, the allegations also suggest that any such doctor-patient relationship began only after the patients’ relationship with Dr. Bradley terminated. See Am. Compl. ¶ 45 ("The improper touching was cited as the reason patients' parents terminated the relationship with Bradley and came to Ludwicki's practice.”). Therefore, Dr. Ludwicki's failure to protect those patients with whom he had a doctor-patient relationship could not have proximately caused them injury and cannot form the basis of a viable claim. See Money v. Manville Corp. Asbestos Disease Comp. Trust Fund,
. See Pis.’ Opp. to Scott at ¶ 4 (“Dr. Scott and Bradley were the only two pediatric physicians employed by Bayside at the time. Accordingly, Dr. Scott and Bradley would treat each others’ patients when either one of them was unavailable.”) (citations to record omitted).
. See Pis. Opp. to Berg at ¶ 4.
. See 18 Del. C. §§ 6801(7), 6853. Of course, any such amended complaint would also have to be accompanied by an "affidavit of merit” that complies with § 6853(a).
. See 18 Del. C. §§ 6801(7).
. This court has previously recognized the "unique” relationship that exists between a patient and her doctor which requires affirmative acts, such as filling out an insurance form, to uphold a physician’s duty of care. See Murphy v. Godwin,
. Am. Compl. ¶ 103.
.
. Id. at 349.
. Id. at 350.
. Id..
. In Spicer, Delaware joined the majority of jurisdictions in recognizing that negligent referral can be a basis for liability. See, e.g.,
. By granting leave to amend under the liberal Rule 15 standard, the Court does not intend to foreclose Rule 12 or Rule 56 motion practice with respect to any amended complaints) that might be filed.