The opinion of the court was delivered by: Denise Cote, District Judge:
This is a tragic case. Two loving parents ("Mother" and "Father") have a son, J.D., who has brain damage, cerebral palsy, and a seizure disorder. This is their first and only child. He is now almost four and a half years old. They have sued the birthing center ("Center") where J.D. was born for medical malpractice. The Government, which is legally responsible for the medical care provided at the Center, has moved to dismiss for lack of subject matter jurisdiction because this suit was not filed within the two year period permitted by the Federal Employees Liability Reform and Tort Compensation Act ("Westfall Act"), 28 U.S.C. § 2679.
To be timely, as explained in the Opinion of December 3, 2010 ("December 3 Opinion"), this claim must have accrued after February 12, 2007. J.D. ex rel. Doe v. United States, No. 10 Civ. 4296 (DLC), 2010 WL 4942225, at *5 (S.D.N.Y. Dec. 3, 2010). The Government contends that Mother, who is bringing this lawsuit on behalf of her son, knew at the time of J.D.'s birth on August 1, 2006, or shortly thereafter, that her child had suffered an injury at birth and knew or should have known at that time that that injury was probably related in some way to the medical treatment he received at the Center.
Mother now admits that she knew her son suffered an injury at birth. She contends, however, that she did not understand either the severity of the injury or that the injury related in some way to the medical treatment J.D. received at the Center until October 2007, when her conversation with a neurologist at Montefiore Hospital ("Montefiore") made that apparent to her.
Based on a hearing conducted from January 10 to 13, 2011, the Government has shown that the claim accrued in August 2006 or shortly thereafter, and that this litigation is time-barred.
A reasonably diligent person in the circumstances of Mother, and aware of the circumstances of J.D.'s birth, as she was, would have had a duty as of August 2006 or shortly thereafter to inquire as to the possible existence of a medical malpractice claim against the Center. Indeed, the preponderance of the evidence shows that Mother and her family actually discussed their discontent with the medical care given by the Center and the Center's responsibility for J.D.'s medical problems in the early Fall of 2006.
I. J.D.'s Birth and Neonatal Care Mother was a 21 year old, newly married woman, when she gave birth to her first child, J.D., at the Center on August 1, 2006. Mother is the oldest of five children, the youngest of whom was roughly three years old at the time. Her parents, siblings, mother-in-law and husband were with her at the Center during her 16-hour labor.
When J.D. was born, he was not breathing. He was given oxygen and taken by ambulance to the Natal Intensive Care Unit ("NICU") at Bronx-Lebanon Hospital ("Bronx-Lebanon"). Father accompanied him in the ambulance and into the hospital. The parents learned that day that J.D. had suffered seizures following his birth. The birth and transfer to the hospital were dramatic and put both parents and Mother's entire family on notice that J.D. had been born with a serious health issue. At Bronx-Lebanon, J.D. was quickly placed on a regimen of phenobarbital to reduce the risk of seizures. Both parents understood that this was a powerful drug with adverse side-effects and was being prescribed because of J.D.'s susceptibility to seizures.
J.D. remained in the NICU for the next seventeen days. On August 7, Dr. Shabbir, a pediatric neurologist, reviewed the results of his examination and the results of an EEG and CAT scan of J.D.'s brain, met with Father and Mother and explained to them that their child had suffered brain damage. Dr. Shabbir predicted that J.D. would have developmental delays but could not predict how severe or mild they would be. On August 9, an MRI was conducted on J.D., showing brain damage abnormalities. Dr. Shabbir shared the MRI results with Father and Mother.
When J.D. was released from Bronx-Lebanon on August 17, the parents were given follow up appointments with doctors, including an August 25 appointment with Dr. Shabbir. They were instructed to administer their son phenobarbital and given referrals to the visiting nurse service and high-risk clinic. Mother knew by that day that J.D. was not healthy and had brain damage caused by a lack of oxygen. She also knew that he could have seizures and delays in development. Also by the time of discharge, Father felt that the Center's staff could have been more diligent to prevent his son's injury and that his family had had a bad experience with them.
II. J.D.'s Care and Development until February 12, 2007 In late August or early September 2006, shortly after bringing J.D. home from Bronx-Lebanon, Mother's family discussed the possible cause of J.D.'s injury in the presence of his parents. They expressed anger at the midwife and medical staff at the Center for not doing more or transferring Mother to the hospital for labor. Among other things, they discussed the fact that the staff had assured the family that everything was going fine and that the baby was strong. They reminded each other how the staff had told Mother's mother that she was worrying too much and had rejected her request that Mother be transferred to a hospital because the labor was taking too long and Mother was struggling. Mother told her family that she wished she had given birth in a hospital. This conversation recurred several times over the next few months.
The EEG, which was intended to detect whether J.D. was still experiencing non-clinical seizures despite the administration of phenobarbital, had been scheduled on September 7, 2006. J.D.'s parents missed this appointment.
On October 31, Mother visited Dr. Shabbir so that he could renew the prescription for phenobarbital and examine J.D. He told Mother that J.D. had a smaller-than-average head circumference. While J.D.'s head size had been in the 50th percentile at birth, it was now, at the three-month mark, in the 5th percentile. Dr. Shabbir explained to Mother that the fact that J.D.'s head was not growing normally, along with other signs, made the likely prognosis worse and that J.D. would have many problems in the future. Dr. Shabbir recommended that the EEG appointment be rescheduled, that J.D. return for another clinic examination in two months, and that he receive physical and occupational therapy through the New York State Early Intervention Program. Mother understood from this visit that her child might not develop normally.
On November 11, in the presence of both parents in their home, physical therapist Martha Londono conducted an examination of J.D. for the Early Intervention Program. She wrote in her report that his physical function was in the second percentile for his age and that his development was that of a one-month-old child. Among other things, she noted that the baby was unable to put weight on his forearms, kept his hands in fists, and had a reflex that limited his ability to reach and to keep his head in symmetry with his body. Ms. Londono discussed her observations with the parents and explained what they meant for their child's development, although she did not discuss the percentile and age ranking. These facts were included, however, in the typewritten report of the examination delivered to the parents in both English and Spanish. The parents read the report. This evaluation qualified J.D. for physical and occupational therapy, which he began shortly thereafter.
The following day, November 12, J.D. was evaluated by a bilingual special educator from the New York Child Resource Center. The evaluation noted that he was developmentally delayed in his motor skills, including holding his hands in fists, not being able to hold objects, losing head control, hyperextending his body and not bringing his hands together at his midline. The evaluation noted that J.D. was at risk for delays and these results were discussed with Mother.
J.D. was seen by a social worker as part of the Early Intervention Program on December 3. As reflected in the report of that evaluation, Mother reported to the social worker that J.D. was easily startled, unable to extend his legs, kept his hands in fists, and could not hold his bottle without assistance.
On January 2, 2007, J.D. was again seen by Dr. Shabbir, whose examination notes indicated that Father and Mother had still not scheduled an EEG for J.D. Dr. Shabbir explained to the parents that J.D. would have problems ...