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Lois Rosenblatt In Her Capacity As Public v. St. John's Episcopal Hospital

January 31, 2012


The opinion of the court was delivered by: Korman, J.:


On December 17, 2010, the plaintiff filed a wrongful death medical malpractice action in the Supreme Court of the State of New York, County of Queens, naming as defendants St. John's Episcopal Hospital ("St. John's"), Monzila Rahman, M.D. ("Dr. Rahman"), and John and Jane Doe, M.D. (collectively "the defendants"). (Compl.)

The plaintiff, Lois Rosenblatt, is the administrator for the estate of Blanca Azucena Monzon Maldonado a/k/a Blanca Azucena Monzon ("Monzon"). (Id. ¶ 1.) St. John's, located in Far Rockaway, Queens, is the hospital where Monzon gave birth to a baby girl on December 22, 2008. (Id. ¶¶ 41, 42; Discharge Summ.) Dr. Rahman is a physician licensed to practice obstetrics and gynecology in New York; she treated Monzon from December 22 to 23, 2008. (Compl. ¶¶ 43, 45; Discharge Summ.; Rahman Decl. ¶ 1; Med. Billing Decl. ¶ 1.) And John and Jane Doe are medical providers at St. John's who treated Monzon in connection with the delivery of her baby. (Compl. ¶¶ 44, 46; Pl.'s Mem. of Law 1.)

The complaint alleges that, from December 22 to 23, 2008, the defendants were negligent, reckless, and careless in treating Monzon, and are thus guilty of medical malpractice, and that such malpractice ultimately resulted in Monzon's death. (Compl. ¶¶ 43, 45, 47, 49-50.) The complaint also alleges that the defendants failed to disclose to Monzon the alternatives to and risks of the treatment Monzon received-namely, a Caesarian section-and that, by failing to do so, they failed to procure Monzon's informed consent. (Id. ¶ 53.) Lastly, the complaint asserts a claim for wrongful death. (Id. ¶ 57.) The plaintiff seeks money damages for all three causes of action. (Id. ¶¶ 51, 54, 58.)

On March 8, 2011, the United States removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a), 1442(a)(1), 2679(d)(2). (Notice of Removal ¶ 5.) Although the complaint does not name the United States as a defendant, the United States substituted itself as a party defendant in the place of Dr. Rahman, pursuant to 28 U.S.C. § 2679(d)(2) and 42 U.S.C. § 233(a), (c), (g). (Id. ¶ 7.) This removal and substitution was based on the certification of Assistant United States Attorney James R. Cho, made on behalf of the Attorney General, that, at the time of the incident from which the plaintiff's claim arose, Dr. Rahman was acting within the course and scope of her federal employment as an employee of the Joseph P. Addabbo Family Health Center (the "Center"), a recipient of grant funds from the United States Department of Health and Human Services ("HHS").*fn1 (Id.; 3/8/2011 Certif.) As is customary, the certification gave no reasons for this determination.*fn2 See Osborn v. Haley, 549 U.S. 225, 233 (2007).

In its notice of removal, the government asserted that, as an employee of a federally funded clinic, Dr. Rahman is a federal employee entitled to the protections of the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b),2401(b),2671-2680. (Notice of Removal ¶ 3.) In support of this assertion, the government attached the declaration of Meredith Torres ("Torres"), a Senior Attorney with HHS. (3/8/2011 Torres Decl. ¶ 1.) In her declaration, Torres stated that, after reviewing official HHS records, she determined that the Center was deemed eligible for FTCA malpractice coverage effective January 1, 2007, and that such coverage continued without interruption until at least March 8, 2011. (See id. ¶ 2; 2/8/2011 Torres Decl. ¶ 5.) Torres also stated that, at all times relevant to the complaint, Dr. Rahman was an employee of the Center and that, as such, had been deemed to be an "employee of the United States" for purposes of medical malpractice coverage, pursuant to the Public Health Service Act ("PHSA"), as amended by the Federally Supported Health Centers Assistance Act, 42 U.S.C. § 233(g)-(n). (3/8/2011 Torres Decl. ¶ 3; 2/8/2011 Torres Decl. ¶ 6.) Torres concluded that Dr. Rahman is thus covered by the FTCA and entitled to all the protections thereof. (3/8/2011 Torres Decl. ¶ 3.)

On April 4, 2011, the plaintiff moved to remand the case to the New York Supreme Court, County of Queens, pursuant to 28 U.S.C. § 1447(c). (Pl.'s Mem. of Law 4.) The plaintiff seeks to have the case remanded on the ground that Dr. Rahman was not acting within the scope of her employment as a federal employee when she provided obstetric services to Monzon at St. John's on December 22 and 23, 2008. (Id.) In the plaintiff's view, at the time Monzon's baby was delivered at St. John's, Dr. Rahman was "either an attending physician or employed by the hospital."*fn3 (Id. at 1.) The plaintiff submits that, based on the "bare bones assertions" in the government's notice of removal and in Torres's declaration, "there is an inadequate showing indicating [that] the requisite control was exercised [by the Center] over the physician in this case [i.e., Dr. Rahman] to constitute her having been a federal agent at the time of the surgical delivery by Caesarean Section at the St. Johns [sic] Episcopal Hospital in Far Rockaway, New York." (Id. at 2.) The plaintiff also asserts that, even if Dr. Rahman were a federal employee, the government has failed to show that such employment was connected to her activities at St. John's. (Id.) In other words, the plaintiff argues that, when Dr. Rahman delivered Monzon's baby at St. John's, she was not acting within the scope of her federal employment. (See id.; Pl.'s Opp. & Reply 1.) In the alternative, the plaintiff seeks the dismissal of her malpractice claims against Dr. Rahman without prejudice to her filing an administrative claim within 60 days of the dismissal and to her commencing a lawsuit within six months of the denial of her administrative claim, pursuant to 28 U.S.C. § 2679(d)(5). (Pl.'s Mem. of Law 3-5.)

Shortly thereafter, on April 12, 2011, the government moved to dismiss without prejudice the plaintiff's FTCA claims against the United States, pursuant to Fed. R. Civ. P. 12(b)(1), and to remand the remaining claims to the New York Supreme Court, County of Queens. (Govt.'s Mem. of Law 1.) In its motion, the government argues that this Court lacks subject matter jurisdiction over the claims against the United States because the plaintiff failed to exhaust her administrative remedies before filing this suit, as required by 28 U.S.C. § 2675. (Id.) Specifically, the government faults the plaintiff for not having first filed an administrative tort claim with HHS. (Id.)


On December 22, 2008, Monzon, a 17-year-old immigrant mother from Guatemala who was 40 weeks pregnant, went to St. John's to give birth to her second child. (Inpatient Admiss. Form; Reyes Aff. ¶ 1; Rahman Decl. ¶ 2.) Dr. Rahman was the attending physician who treated Monzon at the hospital both during and after the delivery. (Inpatient Admiss. Form; Reyes Aff. ¶ 4.) Although Monzon went to St. John's to give birth, she had received prenatal, outpatient care at the Center from Dr. Rahman's colleague, Dr. Rosita Ulep. (Rahman Decl. ¶ 3; Discharge Summ.; Prenatal Flow Rcd.; Reyes Aff. ¶ 1.)

Dr. Rahman had been employed by the Center since February 4, 2008. (Rahman Decl. ¶ 1; Med. Billing Decl. ¶ 2.) She admitted Monzon to St. John's, however, because Monzon was a patient of the Center, and Dr. Rahman was the Center physician on call at St. John's when Monzon arrived at the hospital. (Rahman Decl. ¶ 5.) Patients of the Center do not have their babies delivered at the Center because it is an outpatient clinic without the resources or equipment necessary to handle deliveries. (Rahman Decl. ¶ 4; Chan Decl. ¶ 2.) Instead, Center patients have their babies delivered at outside facilities, such as St. John's. (Rahman Decl. ¶ 4; Chan Decl. ¶ 2.) Dr. Rahman had full admitting privileges at St. John's, and her association with the hospital allowed her to provide treatment to Center patients that they could not have received at the Center. (Rahman Decl. ¶¶ 9-10; Chan Decl. ¶ 5.) Nevertheless, Dr. Rahman has never been an employee of St. John's nor has she ever received any compensation from St. John's, including for the services she provided Monzon. (Rahman Decl. ¶¶ 9, 11.) Indeed, for her treatment of Monzon, Dr. Rahman only received the regular compensation she gets from the Center. (Med. Billing Decl. ¶ 4.) As Dr. Rahman and Dr. Alfonso Yu Chan, the Center's Medical Director, explained, all of the treatment Dr. Rahman provided to Monzon at St. John's was provided in her capacity as an employee of the Center, and not as an employee of St. John's. (Rahman Decl. ¶ 8; Chan Decl. ¶¶ 1, 4.)

According to the discharge summary, Dr. Rahman discussed with Monzon and her family members the complications that could arise if the baby were delivered vaginally because of the baby's large size. (Discharge Summ.) In this light, Monzon and her family members agreed to go through with a Caesarian section. (Discharge Summ.; Rahman Decl. ¶ 5.) Dr. Rahman performed the Caesarian section without complications, and at 9:23 p.m. on December 22, 2008, Monzon gave birth to a baby girl. (Discharge Summ.; Birth Certif.; Rahman Decl. ¶ 6.)

An hour after the baby's birth, Monzon was moved to the recovery room, where she remained stable. (Discharge Summ.) But at 11:38 p.m., a nurse heard Monzon moaning, and, upon examination, it appeared that Monzon was having a seizure and had lost consciousness. (Discharge Summ.; Rahman Decl. ΒΆ 7.) Monzon also began to bleed vaginally. (Discharge Summ.) Efforts were made to stabilize Monzon, but it was ultimately determined that she was not responding and that such efforts were futile. (Discharge Summ.) Monzon was pronounced dead at 12:44 a.m. on December 23, 2008. ...

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