The opinion of the court was delivered by: Gary L. Sharpe U.S. District Judge
MEMORANDUM-DECISION AND ORDER
Infant Uqua Blair and his aunt and legal guardian Leslie Paul bring this action alleging that medical malpractice by the defendants named herein during Uqua's birth caused him serious and permanent brain injuries. (See Dkt. No. 1.) Presently before the court is a motion for summary judgment by the federal government on behalf of the United States of America, Michael D. Christine, M.D., and the Whitney M. Young Jr. Health Center, Inc. (collectively the "Government"). (See Dkt. No. 58.) For the reasons that follow the Government's motion is denied.
II. Facts and Procedural History*fn2
Uqua was born to 17 year old Stephanie Blair on March 8, 2000, at St. Peter's Hospital in Albany, New York. (See Gov. SMF ¶ 22; Dkt. No. 58.) The delivery did not go smoothly. Ms. Blair pushed for so long that blood vessels in her eyes and face burst, and she was aware that every time she pushed Uqua's oxygen level and heart rate dropped. Id. at ¶¶ 14-15. She also observed that the medical staff in the room knew something was wrong and sent for a physician. Id. at ¶ 16. The on-call doctor, defendant Michael D. Christine M.D., responded and it was decided that Uqua would be delivered by cesarean section. Id. at ¶ 19. Ms. Blair testified that midwives continued to have her push when Doctor Christine left to prepare for the surgery, which made him extremely angry and upset when he returned. Id. at ¶¶ 20-21.
At 5:24 a.m. Uqua was delivered via cesarean section in a state of critical illness, with complications including meconium aspiration,*fn3 probable sepsis*fn4 and persistent pulmonary hypertension.*fn5 (See Gov. SMF ¶¶ 22-23; Dkt No. 58, Pl. Ex. A pp. 14-15; Dkt. No. 62.) He was limp and apneic with a heart rate of 60 bpm. (See Gov. SMF ¶ 24; Dkt No. 58.) He also had an initial Apgar score of 2, which rose to 7 at five minutes after birth.*fn6 Id. at ¶ 25. Uqua was suctioned and ventilated with a 100% FiO2 bag mask. Id. at ¶ 26. At this point Uqua's heart rate increased to 100 bpm, but he remained apneic and required occasional hand bagging, as he was without spontaneous respiration. Id. at ¶¶ 27, 28. He was then brought to the neonatal intensive care unit. Id. at ¶ 29. Ms. Blair and her family were told that he required transfer to the Children's National Medical Center ("CNMC") in Washington D.C., for possible ECMO*fn7 due to persistent pulmonary hypertension and severe respiratory insufficiency. (See Gov. SMF ¶ 30; Dkt No. 58, Pl. SMF ¶ 46; Dkt. No. 62.) However, upon arrival at CNMC Uqua was not given ECMO due to his improved condition. (See Gov. SMF ¶ 30; Dkt No. 58, Pl. SMF ¶ 47; Dkt. No. 62.) He was subsequently returned to St. Peters on March 13th and discharged to Ms. Blair on the 15th or 23rd in "excellent condition" with no neurological impairment noted. (See Gov. SMF ¶ 31; Dkt No. 58, Pl. SMF ¶¶ 49-51; Dkt. No. 62.)
On May 6, 2000, Ms. Blair brought Uqua to the emergency room at Albany Medical Center for rotavirus caused dehydration and a mental status change. (See Gov. SMF ¶ 35; Dkt No. 58, Pl. SMF ¶ 54; Dkt. No. 62.) A series of medical scans were conducted on Uqua's head. Id. at ¶¶ 36-38. These reports noted, inter alia, that Uqua had a "hypoxic birth injury" and showed atrophy and hypodensity in the frontal lobes of Uqua's brain. Id. Ms. Blair requested a meeting to discuss these test results, though it is unclear from the record whether this meeting ever occurred. Id. at ¶ 39.
After Uqua's May hospitalization, Ms. Blair took him to see some specialists because she knew something was wrong with him, but didn't know what it was. (See Gov. SMF ¶ 40; Dkt No. 58, Pl. SMF ¶ 60; Dkt. No. 62.) Subsequent visits to Uqua's pediatrician noted normal development, although a skull series was ordered to rule out craniosynostosis.*fn8 (See Pl. SMF ¶¶ 55-56; Dkt. No. 62.) While the films returned normal, Uqua was nevertheless referred to neurosurgeon John Waldman, M.D. for evaluation. Id. at ¶¶ 56, 57. On September 26, 2000, Doctor Waldman reviewed the May CT and MRI results and diagnosed Uqua with significant bifrontal brain injury presumably secondary to anoxia. (See Gov. SMF ¶ 44; Dkt No. 58, Pl. SMF ¶ 57; Dkt. No. 62.) The parties dispute whether this diagnosis was discussed with Uqua's family. (Compare Waldman Dec.; Dkt. No. 65, with, Pl. SMF ¶¶ 58-61, 70-77; Dkt. No. 62, Pl. Exs. I and J; Dkt. No. 62.) Doctor Waldman did not believe neurosurgical treatment was necessary, but recommended a developmental assessment and follow up. (Pl. SMF ¶ 57; Dkt. No. 62.) Uqua's subsequent medical records from 2000 and 2001 note his brain injury, though they are ambiguous as to the source relaying this information. (See Pl. SMF ¶¶ 64, 65, 67; Dkt. No. 62, Pl. Ex. D at 59-61, 69-70, 95; Dkt. No. 62.)
In August of 2002 Uqua's aunt, plaintiff Leslie Paul, was granted custody of Uqua. (See Pl. SMF ¶ 68; Dkt. No. 62.) Paul was aware of the difficult circumstances of Uqua's birth, that he had been transferred to CNMC due to respiratory difficulties, and that he was being seen by various developmental specialists in the first six months of his life. (See Gov. SMF ¶¶ 32, 45; Dkt No. 58.) In April or May of 2003, Paul was advised by a doctor that Uqua had cerebral palsy. (See Pl. SMF ¶¶ 72-74; Dkt. No. 62.) Paul spoke with a lawyer for the first time on May 22, 2003, when she was first informed that Uqua's problems were probably related to his birth. Id. ¶¶ at 71, 74, 77.
On April 15, 2004, plaintiffs commenced a medical malpractice action against defendants Steven A. Culbert, M.D.; Michael D. Christine, M.D.; David M. Kimble, M.D. and St. Peter's Hospital in New York State Supreme Court, Albany County, alleging negligence during the delivery of Uqua. (See Gov. SMF ¶ 1; Dkt No. 58.) After the complaint was filed it was discovered that Doctor Christine was not an employee of St. Peter's, but rather of the Whitney Young Jr. Health Center- a deemed healthcare facility pursuant to the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n). Id. at ¶ 3. As such, a claim against the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., is the exclusive remedy for Doctor Christine's alleged malpractice.
On becoming aware of Doctor Christine's federal status, plaintiffs filed administrative claims with the Department of Health and Human Services on January 12, 2005. Id. at ¶ 6. On January 13, 2005, the Government removed the state action to this court. Id. at ¶ 3. The United States was then substituted for Doctor Christine, and the claims against it were dismissed without prejudice on May 19, 2005 for failure to exhaust administrative remedies under 28 U.S.C. § 2675. Id. at ¶¶ 4,5. The remainder of the action was remanded to state court. Id. at ¶ 5.
Plaintiffs' administrative claims failed to reach a final conclusion within six months, and they filed the instant action on January 23, 2007 pursuant to 28 U.S.C. § 2675. (See Dkt. No. 1.) On June 19, 2007, the Government moved for judgment on the pleadings or, in the alternative, summary judgment, on grounds that plaintiffs' action is time barred by the FTCA's two year statute of limitations. (See Dkt. No. 25.) The court denied the motion with leave to renew after discovery. (See Dkt. No. 43.) Discovery has now been completed, and the Government's renewed motion for summary judgment is pending.
The standard for the grant of summary judgment is well-established, and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town ...