The opinion of the court was delivered by: Denise Cote, District Judge:
The plaintiffs Jeremiah Dominguez ("Jeremiah") and his mother Cynthia
Dominguez ("Dominguez," and together,
"Plaintiffs") allege claims for medical and nursing malpractice, lack
of informed consent, and loss of services against the medical and
nursing staff at two different medical facilities based on the
circumstances surrounding Jeremiah's birth in 2006. Defendants Morris
Heights Health Center, Inc. ("Morris Heights"), Kelly Fitzgerald,
Marcia Jones, and Yorleny Sherrier-McKnight (together, the "Federal
Defendants") have moved to dismiss all of the Plaintiffs' claims
against them for lack of subject matter jurisdiction.*fn1
For the following reasons, the Federal Defendants' motion to
dismiss the Plaintiffs' claims is granted only with respect to the
claim based on lack of informed consent.
I. Jeremiah's Birth and Medical Care Dominguez began receiving pre-natal care at Morris Heights when she was eight weeks pregnant. At that time, she was twenty years old and had completed high school. She received pre-natal care at Morris Heights fourteen times between December 2005 and July 2006. On August 1, Jeremiah was born at Morris Heights via "normal spontaneous vaginal delivery" at full term. The Plaintiffs' medical records do not disclose any complications during labor.
Jeremiah was not breathing when he was born. He received "respiratory support" in the delivery room and was quickly transferred by ambulance to Bronx-Lebanon. There, he was placed on a ventilator in the neo-natal intensive care unit. He suffered two seizures that day and was placed on the anti-seizure medication phenobarbital.
While Jeremiah was at Bronx-Lebanon, several tests were performed to assess his brain functioning. An ultrasound of his head, EEG, CAT scan, and MRI*fn2 were performed in the first eight days of Jeremiah's life. The ultrasound did not show any bleeding in the brain or lesions, but the CAT scan revealed "findings consistent with asphyxia injury." The MRI also showed "asphyxia brain injury." The EEG was "grossly abnormal" and reflected a non-specific "severe hypoxic-ischemic insult."*fn3 When Jeremiah left Bronx-Lebanon on August 17, a discharge summary included these results and also described Jeremiah's physical condition as "normal," including that he was pink and had a good cry and good movement.
Medical and other diagnostic records describe conversations with Dominguez about Jeremiah's medical condition. On August 7, 2006, Jeremiah's neonatologist and neurologist met with Dominguez and Jeremiah's father and "discussed in detail" that Jeremiah showed signs of "HIE" and that his seizures were one indicator of that diagnosis. HIE refers to hypoxic ischemic encephalopathy, which is damage to cells in the central nervous system (the brain and spinal cord) from inadequate oxygen. On November 11, 2006, Jeremiah was evaluated by New York Child Resource Center for an assessment of his overall development. The evaluator wrote in her assessment that she relied on clinical observations and a parent interview to perform the evaluation. The evaluator wrote: "Mother reports" that Jeremiah failed to breathe at birth, was placed on a ventilator, and that "placenta was sent to lab for test. It was determined that the baby was not receiving enough oxygen in-utero." In a physical therapy evaluation the following day, the evaluator stated that the parents gave her all pertinent information, which included that Jeremiah's MRI showed hypoxic ischemic injury.
Dominguez took Jeremiah to a neurologist for follow-up care four times between August 2006 and March 2007. The medical records from those appointments describe a diagnosis of encephalopathy, ischemic injury, and seizure disorder, or alternatively, hypoxic ischemic encephalopathy and seizure disorder. At a subsequent appointment in September 2007, the neurologist's report reflects that Jeremiah was at or below the 5th percentile in weight, height, and head circumference, that he had a history of cerebral palsy, was experiencing seizures, drooled, and was unable to sit without help.
Dominguez has provided an affidavit regarding what she understood about Jeremiah's medical condition. Dominguez testifies that her delivery was "uneventful" and she was not informed of any complications or trauma from the birth. She testifies that no one at Morris Heights gave her any information about why Jeremiah was not breathing when he was born. She also denies that anyone at Bronx-Lebanon gave her "a specific diagnosis" or "any information about why [Jeremiah] was born not breathing or why he had seizures." She denies that anyone discussed any test results with her and says she was "led to believe" that Jeremiah was "healthy" when he was discharged from Bronx-Lebanon. With respect to the November 2006 evaluations, Dominguez testifies that the evaluator "reviewed a full set of medical records" in addition to speaking with Dominguez and that Dominguez was informed at that time that Jeremiah had "some mild developmental delay but there was no cause for concern at that time." Dominguez testifies that she "believed that [Jeremiah's] condition was unavoidable and its cause unknown" because "[n]o one, at anytime [sic] explained to [her] the cause of his condition."
On August 11, 2008, Jeremiah was hospitalized for dehydration at Montefiore Medical Center ("Montefiore"). Dominguez testifies that a neurologist at Montefiore diagnosed Jeremiah with cerebral palsy and mental retardation, and that it was the first time that she had heard either of these diagnoses. Dominguez testified that "[t]he neurologist explained to [her] that mental retardation can occur as a result of lack of oxygen at birth. This was the first time anyone had informed me of the possible cause of [Jeremiah's] injuries." "Shortly thereafter," Dominguez testified that she saw a legal services advertisement on television that stated that "mental retardation and cerebral palsy may be actionable." She then retained her present counsel.
II. Procedural History On February 12, 2009, the Plaintiffs commenced this action in New York Supreme Court, alleging medical and nursing malpractice, lack of informed consent, and loss of services against all of the defendants presently named in the action (the "Removed Action"). On May 11, 2009, Dominguez filed a Notice of Claim against the United States with the Department of Health and Human Services ("HHS").
On February 25, 2010, after the HHS failed to issue a final decision on Dominguez's administrative claim within six months, the Plaintiffs commenced an action in the Southern District of New York by filing a complaint similar to the complaint in the Removed Action. The complaint was given docket number 10 Civ. 1589 and assigned to this Court (the "Federal Action"). At an initial conference with the Court on April 30, 2010, the parties agreed that the Federal Action would be dismissed and that the Removed Action would proceed in federal court following its removal. By letter dated May 3, HHS denied Dominguez's administrative claim as untimely on the ground that it was filed more than two years after her cause of action accrued.
On May 10, while the Removed Action was still pending in state court, the Co-Defendants filed a cross-claim against the Federal Defendants for contribution or indemnification in that case. On May 26, the United States Attorney certified that all of the Federal Defendants were acting within the scope of their employment at all relevant times, and were therefore deemed to be employees of the United States ("scope certification"). Based on the certification, the Government filed a Notice of Removal on May 28, 2010 pursuant to 28 U.S.C. §§ 1442(a)(1), 2679(d)(2), and 42 U.S.C. § 233(c). The Removed Action was accepted as related to the Federal Action and given docket number 10 Civ. 4296. A stipulation of dismissal of the Federal Action was filed on June 7. The stipulation conveys the parties' understanding that the claims in the Removed Action and the Federal Action are the same and that the United States would substitute itself as the proper defendant in place of the Federal Defendants in the Removed Action.*fn4
On July 27, the Federal Defendants moved to dismiss all claims and cross-claims against them for lack of subject matter jurisdiction. Both the Plaintiffs and the Co-Defendants opposed ...