The opinion of the court was delivered by: Kevin Nathaniel Fox, United States Magistrate Judge
Ashley Mateo ("Mateo"), an infant, and her mother and natural guardian, Albairis Gonzales ("Gonzales"), commenced this action on April 4, 2006, alleging negligence in the provision of professional medical services, against the United States of America, pursuant to the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. § 2678. The parties have negotiated a disposition, through which Mateo's claims would be compromised and settled, and Gonzales would forgo prosecuting the claim she asserted individually. The parties seek the Court's approval of the terms and conditions under which Mateo's claims will be resolved, as well as an order awarding costs and reasonable attorneys' fees to counsel to the plaintiffs.
The instant claims arose from the alleged negligence of medical personnel who, in April 2004, rendered prenatal and obstetric care to the plaintiffs at the Bronx-Lebanon Hospital Center, a federally assisted health-care facility. According to the plaintiffs, while being delivered, Mateo suffered trauma to her right arm and shoulder, which led to nerve damage at Mateo's brachial plexus, resulting in a disabled right arm, due to a neurological condition known as "Erb's palsy."
Gonzales submitted an affidavit to the Court dated March 21, 2008, in which she declared: "There are no open medical bills due and owing and I have not been notified of or been served with any notice of any [Medicaid] liens." She also estimated that the costs for: (a) services rendered to the plaintiffs at Bronx-Lebanon Hospital Center totaled $2,686.00; (b) services rendered subsequent to Mateo's birth at Montefiore Hospital totaled $3,500.00; and (c) physical therapy services and related treatment for Mateo were, in the aggregate, $30,000.00, resulting in a combined estimated total for health-care costs of $36,186.00. According to Gonzales, these costs "have [ ] been paid by Medicaid." Gonzales' March 21, 2008 affidavit did not identify the treating, attending and consulting physician(s), nor did it specify the charges incurred by any identified health-care provider(s) for particularized services rendered.
Gonzales' March 21, 2008 affidavit had numerous medical records attached as exhibits. They detailed treatment received by Gonzales and Mateo in or about 2004, as well as narrative medical reports regarding pediatric neurological examinations of Mateo and related diagnostic and prognostic opinions. The record before the Court shows that Leon I. Charash, M.D., examined Mateo on August 5, 2005, and June 6, 2006; while In-grid P. Taff, M.D., examined her on November 15, 2006, on behalf of the defendant. Medical bills related to these examinations were not submitted to the Court, and no charges associated with these examinations were identified for the Court.
Thomas P. Markovits ("Markovits"), an attorney for the plaintiffs, submitted an affirmation to the Court, dated March 20, 2008, in support of the parties' proposed settlement. It failed to provide the names of the plaintiffs' treating, attending and consulting physicians. Included in Markovits' affirmation is a recitation of the same medical costs identified in Gonzales' March 21, 2008 affidavit. However, no corroborating medical insurance billing records accompanied Markovits' affirmation and none has been included in any other submission made by the plaintiffs to the Court.
The parties participated in three settlement conferences, between September 2007 and January 2008, conducted by the Honorable Henry B. Pitman. Based on the discussions had during those conferences, the parties agreed that: (i) the defendant would pay Mateo $600,000.00 to resolve her claims; (ii) the money received by Mateo would be deposited with various financial institutions, for her benefit; and (iii) Gonzales would relinquish the claim she made against the defendant. Thereafter, the parties submitted a proposed stipulation of settlement and dismissal to the Court for its review and approval. The parties' proposed stipulation provided, inter alia, that "attorneys' fees pursuant to the [FTCA] . . . inclusive of $24,524.00 in costs and disbursements," should be paid to the plaintiffs' counsel via a "check in the amount of $168,393.00."
No allocation of funds for discrete categories of damages was made in the parties' proposed stipulation of settlement and dismissal. According to the parties' stipulation, the $600,000.00 to be paid to Mateo are in "full settlement of any and all claims for personal injury, or any other damages that [p]laintiffs now have or may hereafter acquire against the [defendant] . . . on account of the alleged events, circumstances, or incidents giving rise to the Action herein." In accordance with Local Civil Rule 83.2 of this court and relevant state law, a hearing was held concerning the proposed stipulation and Gonzales' understanding of the terms and conditions under which Mateo's claims will be compromised.
Infant Compromise Hearing and Determination
In this judicial district a proposed settlement involving a claim made by an infant (or incompetent) must be reviewed by a judicial officer, who must determine whether: (1) the best interests of the infant (or incompetent) are protected by the terms and conditions of the proposed settlement; and (2) the proposed settlement, including any legal fees and expenses to be paid as part of the proposal are fair and reasonable. See Local Civ. R. 83.2(a); New York Judiciary Law ("NY Jud. Law") § 474; New York Civil Practice Law and Rules ("CPLR") §§ 1205-08. Specifically, a court must evaluate whether the proposed settlement is "'fair, reasonable and adequate' by comparing 'the terms of the compromise with the likely rewards of litigation.'" Neilson v. Colgate-Palmolive Co., 199 F.3d 642, 654 (2d Cir. 1999) (citation omitted). In doing so, a court must "form an educated estimate of the complexity, expense, and likely duration of such litigation . . . and all other factors relevant to a full and fair assessment of the wisdom of the proposed compromise." See Newman v. Stein, 464 F.2d 689, 692 (2d Cir. 1972), cert. denied, 409 U.S. 1039, 93 S.Ct. 521 (1972).
In support of the proposed settlement terms and conditions, the plaintiffs submitted an affidavit by Gonzales in her capacity as the infant's representative and an affirmation by an attorney for the plaintiffs. Applicable CPLR provisions require that several documents be submitted to a court prior to an infant compromise hearing. They include: (i) an affidavit of the infant's representative; (ii) an affidavit of the attorney representing the infant; and, when the proposed ...