The opinion of the court was delivered by: Irving Ben Cooper, District Judge.
Plaintiff Teresa Martinez (hereinafter "Mrs. Martinez" or
"Grandmother"), guardian of minor Luis Antonio Mendez
(hereinafter "Tony"), brings this action on behalf of her
grandson under the Federal Tort Claims Act (hereinafter
"F.T.C.A."), 28 U.S.C. § 1346(b), 2671 et seq. (1988) alleging
that he suffered and will continue to suffer mental and physical
damage as a result of medical malpractice at the time of
delivery. (Feb. Tr. 39; Plaintiff's Ex. 6)*fn1. Defendant contends
plaintiff's action is time-barred by the statute of limitations.
In the alternative, defendant maintains no medical malpractice
exists and any injury sustained by Tony resulted from a possible
infection in his mother during her pregnancy.
On December 10, 1977 Tony was delivered by Caesarean section by
physicians at Madigan Army Medical Center (hereinafter
"Madigan"). Five years later on December 6, 1982 his grandmother
filed an administrative claim with the Department of the Army. On
November 24, 1982 Tony's father, Luis Enrique Mendez (hereinafter
"Luis Sr."), a non-party to this action, filed an administrative
claim as well. (Feb. Tr. 73; Plaintiff's Ex. 6) The
administrative claims were denied as untimely; consequently
plaintiff filed this action on September 26, 1984.
On June 5, 1985 defendant United States of America (hereinafter
"United States" or the "Government") filed a motion for summary
judgment on the ground that the administrative claim was not
filed within the two year statute of limitations as dictated by
28 U.S.C. § 2401(b). Plaintiff moved to dismiss the Government's
After a one-day trial held before us on February 6, 1986 solely
on this particular issue, we rendered a decision denying the
Government's motion on the ground of insufficient evidence, but
granting leave to renew. We held, inter alia:
What we are endeavoring to point out is that the
totality of the material before us does not furnish
full details addressed to the essential second phase
[United States v. Kubrick, 444 U.S. 111, 123, 100
S.Ct. 352, 360, 62 L.Ed.2d 259 (1979)] makes
indispensable. At trial there will be ample
opportunity to delve into this essential element. If
the proof at that time (even if offered at the
commencement of trial) establishes this vital factor
to the degree the law makes imperative, we would have
no alternative to directing a dismissal of the
complaint and awarding judgment in favor of the
Mendez by Martinez v. United States of America, 655 F. Supp. 701,
708 (S.D.N.Y. 1987).
Subsequently, on March 23, 24, and 25, 1987 we held a trial
addressed to the issue of liability. Counsel submitted post-trial
papers during September 1987, wherein defendant renewed its
motion to dismiss the complaint as time-barred and in the
alternative, moved for dismissal based upon plaintiff's failure
to establish the requisite elements of a medical malpractice
In light of our earlier decision and the materials presently
before us, we are compelled to re-visit the statute of
limitations issue at the outset.
Luis Mendez Sr. served in the armed forces for approximately
five years until he was honorably discharged on March 27, 1981.
(Feb. Tr. 62-63) During a tour of duty in Korea, he met Kyong Ok
Ku and they married in January 1977. (Feb. Tr. 63) Shortly
thereafter, Mrs. Mendez became pregnant for the first time. (Mar.
Tr. 87; Plaintiff's Ex. 7, at 24) During her pregnancy, Luis Sr.
was transferred to Fort Louis in Washington (date unclear) where
their son Tony was born (Feb. Tr. 64-65); Kyong received prenatal
care there and in New York. (Mar. Tr. 188-189, 193, 260)
Luis Sr. was 19 years of age at the time of his son's birth.
(Feb. Tr. 61-62) At that time, Mr. Mendez had a ninth grade
education but eventually received a high school equivalency
diploma and completed some college work. (Feb. Tr. 62-63)
On December 9, 1977 at approximately 5:10 a.m. Mrs. Mendez was
admitted to Madigan located in Tacoma, Washington because her
membranes prematurely ruptured; that is, her "bag of water" had
begun to leak amniotic fluid before the onset of contractions.
(Mar. Tr. 26-27, 264; Plaintiff's Ex. 7, at 18; Defendant's Ex.
A, at 69) Luis Sr. was by his wife's side at the hospital until
6:30 a.m. the following morning, at which time the doctors
requested that he leave the room. (Mar. Tr. 265) Luis Sr. went to
the waiting room and asked one of the doctors to wake him before
she had the baby so he could be present at the birth. (Feb. Tr.
After several failed attempts to deliver the child vaginally in
which Pitocin (a labor inducement drug), midforceps, and a vacuum
extractor were used (Plaintiff's Ex. 2, at 5; Defendant's Ex. A,
at 4) the treating physicians diagnosed cephalopelvic
disproportion, ("CPD") i.e., a condition in which the baby's head
cannot pass through the mother's pelvis. (Mar. Tr. 81, 129;
Defendant's Ex. A, at 1) Consequently, Tony was born by Caesarean
section on December 10th at 8:01 a.m. (Feb. Tr. 64, 66; Mar. Tr.
80; Plaintiff's Ex. 10, at 7)
Upon birth, Tony was limp and swollen as a result of excessive
fluid within his body, and he had no apparent signs of life.
(Feb. Tr. 77; Mar. Tr. 145; Plaintiff's Ex. 2, at 5) In fact, at
one minute after his birth Tony was found to have no discernible
heart or respiratory rate. (Id.)
Luis Sr. was awakened shortly after the birth of his son by Dr.
Magelssen. (Mar. Tr. 265)*fn3 This was the first time they had met.
Luis Sr. testified to the following conversation between them at
A. . . . [The doctors] told me I had a boy, and I was
a little excited about that. Then they told
me,`But he was born with complications.' And I
asked them what kind of complications, and they
said, `He wasn't breathing but we revived him' and
not to — not to put my hopes too high
because he probably didn't have a chance to live.
And I became upset.
A. Emotionally upset, yes.
Q. Did you speak to the doctors as to what caused
A. Yes, I asked him why was he born that way and he
goes, `That's the way some children are born.'
(Feb. Tr. 67)*fn4
Dr. Magelssen's testimony is consistent with that of Luis Sr.*fn5
Like the doctor, Luis Sr. did not expect his son to be born by
cesarean section nor did he expect the labor and delivery to take
as long as it did. (Feb. Tr. 74)
The day following his birth, Tony suffered from seizure-like
activity which subsided after he was treated with a drug called
Phenobarbital. (Plaintiff's Ex. 2, at 8) He remained in the
hospital for over two months during which time he underwent
several medical procedures including opening the heart to relieve
pressure and intubating the lung area; Luis Sr. signed informed
consent forms for both procedures. (Feb. Tr. 70, 77-78;
Defendant's Ex. B, at 4) Tony was discharged in the care of his
parents on February 14, 1978, but made a number of subsequent
visits to the outpatient clinic at Madigan. During those visits
(which occurred over the course of one half year) the staff noted
Tony's severe asphyxiation (lack of oxygen), low Apgar scores,
c-section [cesarean section] CPD delivery, as well as other
severe medical abnormalities. (Defendant's Ex. B) In one
document, a staff member noted that with respect to the infant's
parents, "Do not believe they understand that he may have
problems in future." (Defendant's Ex. B, at 17)*fn6
Although Mrs. Martinez did not become Tony's legal guardian
until February 7, 1984 (more than one year after she filed the
administrative claim against the Government for medical
malpractice), she was his primary caretaker since December 1978.
(Feb. Tr. 88; Plaintiff's Ex. 5)
Born in Puerto Rico in 1942, Mrs. Martinez is English speaking
and studied psychology and social work at the College of New
Rochelle for three years where she received her Associates degree
in 1979 and her Bachelors degree in 1986. (Feb. Tr. 21-22, 29;
Mar. Tr. 185, 246) She has worked at Sheltering Arms Children
Service, a foster care agency placing children in appropriate
homes since December 1986. Prior to that she was employed since
December 1979 by the City of New York Social Service Department
as an eligibility specialist where she helped clients obtain
inter alia public assistance grants, food stamps, Medicaid, PA
grants, and housing. (Mar. Tr. 185-186, 247-248) In addition,
Mrs. Martinez raised three children of her own. (Mar. Tr. 191)
Mrs. Martinez was not present at the hospital when Tony was
born and never personally spoke with any Madigan staff. (Feb. Tr.
23) However, Luis Sr. had telephoned her several times to give
her status reports as to Kyong's labor and the eventual birth of
his son. (Feb. Tr. 23-24) According to plaintiff, Luis Sr. told
her, "`Mother, the baby is a boy but he is born very sick.'"
(Feb. Tr. 24) Although he did not say during that conversation
what caused Tony's sickness, prior to Tony's visit to his
grandmother in May 1978 and in response to her inquiry, Luis Sr.
told Mrs. Martinez that ". . . the doctor told me that the kid is
born sick and he born like that way." (Id.)*fn7 Mrs. Martinez claims
that a language barrier prevented her from discussing with Kyong
the cause of Tony's infirmities and what happened during her
labor and delivery. (Feb. Tr. 25) Although Mrs. Martinez knew of
Kyong's whereabouts since her departure (Feb. Tr. 26-27; Mar. Tr.
248-250) she never contacted Kyong.
In the ensuing years Tony's grandmother was responsible for
tending to Tony's medical needs. (Feb. Tr. 88) She took him to
the clinic once a month for a check-up and sought medical
attention in response to specific medical problems suffered by
Tony. (Feb. Tr. 27-28; Defendant's Ex. C; D) The first instance
occurred on the day of his arrival to New York, when she took him
for medical treatment in response to his diarrhea and vomiting.
(Feb. Tr. 28) Her private physician, Dr. Perez, suggested that
she take him to the hospital if Tony's diarrhea did not subside.
(Feb. Tr. 29) On December 6th Tony was admitted to Lincoln
Hospital and was discharged in good condition one week later.
(Feb. Tr. 29; Defendant's Ex. C)
At the time of admission, Lincoln Hospital staff received oral
information about Tony by Mrs. Martinez, who had in her
possession no medical records. She basically informed them that
Tony was "[b]orn at Army Base Hosp. [Hospital] in Washington
. . . by c/s [Caesarian section] due to CPD . . .". (Defendant's
Ex. C, at 88-89) Upon noticing an incision*fn8 on Tony's chest,
Lincoln staff directed Mrs. Martinez to obtain Tony's medical
records before they
would provide him with treatment. (Feb. Tr. 29)
Consequently, Mrs. Martinez contacted her son in Washington and
requested that he retrieve Tony's medical records. (Feb. Tr. 29,
88) At trial, Mrs. Martinez identified the records she received
from her son as the Madigan outpatient records for Tony. (Feb.
Tr. 29-30; Ex. B)*fn9 Lincoln Hospital personnel duplicated these
records and returned the original photocopies to Mrs. Martinez
which she retained. (Feb. Tr. 30, 50)
Plaintiff admits reading these records but claims she did not
understand the "big words" contained therein, nor did she ask
anyone to explain their meaning to her. (Feb. Tr. 30) Mrs.
Martinez claims she did not think any of her family members would
understand the documents, thus she did not bother to inquire.
(Id.) Moreover, she did not consult with a professional or close
friend for assistance in understanding the condition of her
The following notations of relevance exist within the Madigan
outpatient records for Tony: December 15, 1977 — "pericardial
effusion operation — etiology undetermined"; January 4, 1978 —
"severe asphyxia at birth" and "dismal diagnosis long term";
January 26, 1978 — "Diagnosis: 1) Neonatal Asphyxia [,] 2)
Congenital Hydrops [,] 3) Congestive Heart Disease . . .
Prognosis: Guarded . . . Severity: Severe" and "Discharged. Feb.
14, 1978"; March 10, 1978 — "very stormy neonatal period" and
"evidence for developmental lag"; March 23, 1978 — "respiratory
failure" and "needs close neurologic f/u [follow up]"; April 7,
1978 — "1st child"; "b.wt [birth weight] 9 lb. 1 oz.", "Neonatal
course with resp. [respiratory] difficulty, `too much fluid in
body'", "birth — C-section CPD [cephalopelvic disproportion]",
and "dischg [discharge] at 2 mo. [months]." (Defendant's Ex. B)
Significantly, one particular outpatient document reveals that
Tony's mother was given "Pitocin thru [through] IV ...