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Halina Biernacki, Individually and As Executrix of the Estate of David v. United States of America

December 7, 2012

HALINA BIERNACKI, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DAVID STREET, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

Pursuant to 28 U.S.C. § 636(c), the parties have consented to the assignment of this case to the undersigned to conduct all proceedings in this case, including the entry of final judgment. Dkt. #29.

Plaintiff, Halina Biernacki, proceeding pro se, commenced this medical malpractice action pursuant to the Federal Tort Claims Act, alleging that her 88 year-old husband, David Street, received inadequate medical treatment at the VA Western New York Health Care System following his ingestion of fresh spinach contaminated with E. coli 0157:H7, resulting in his death on October 22, 2006. Dkt. #1. Plaintiff complains that defendant failed to perform tests to identify the particular strain of E. coli affecting Mr. Street, thereby overlooking the risk of Hemolytic Uremic Syndrome ("HUS"), an extremely rare cause of kidney failure. Dkt. #1. As a result of their failure to test for the E. coli strain, plaintiff alleges that Mr. Street received inappropriate medical treatment which aggravated his condition and that the diagnosis and treatment of the resulting HUS was delayed. Dkt. #1. Plaintiff alleges that if defendant had followed the standard of care set forth by numerous regulatory agencies, including advice to test for the E. coli strain and regulations requiring reporting of communicable diseases, he would have received appropriate treatment and survived his illness. Dkt. #1.

Motion to Dismiss

Defendant moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure with respect to plaintiff's allegations that defendant's failure to report plaintiff's E. coli infection to local health department constitutes negligence. Dkt. #55.

Plaintiff responds as follows:

To report or not to report is the first step in providing treatment. Not to report is the first step in negligence and lack of standard of care. The defendant defaulted on the legal duty to report; defaulted on the FDA, CDC, NYSDOH and ECDOH alerts. All of these alerts discuss duty to report E. col[i]. By not reporting E. coli the defendant started the process for negligence; this established permission to proceed with negligence. Not to report is evidence of negligence. If the NYSDOH and ECDOH listed the laws and codes on the mandatory reporting form, at prima facie it is related to the diagnosis of E. coli and this case.

Dkt. #58, p.26.

A motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure employs the same standard as a motion to dismiss pursuant Rule 12(b)(6). Bank of New York v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To survive such a motion, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Application of this standard is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.

Plaintiff has alleged sufficient facts to support a claim of medical malpractice under the Federal Torts Claims Act. As plaintiff's allegations that defendant failed to comply with state regulations requiring reporting of communicable diseases to the local health department do not attempt to set forth a separate cause of action, there is no such claim to dismiss. The relevance of defendant's failure to comply with state regulations, if it is established that such regulations are applicable and were not followed, is not appropriately addressed at this stage in the proceedings.

Motion to Compel

Plaintiff seeks to compel complete responses to her discovery demands. Dkt. ##40 & 108.

Defendant responds that it has responded to plaintiff's 17 interrogatories and 43 document demands in good faith, producing in excess of 2,000 pages of relevant documents. Dkt. #51, ¶ ¶ 12-13. In addition, defendant states that following receipt of plaintiff's motion, which was defendant's first notice of plaintiff's objections to its responses, defendant reviewed and supplemented its responses to several interrogatories and produced additional documents. Dkt. #51, ¶ 15.

Upon review of plaintiff's motion and defendant's amended responses, as well as defendant's Rule 26 disclosure and expert witness disclosure, the Court is satisfied that defendant has complied with its discovery obligations. Accordingly, plaintiff's motion to compel is denied.

Notice to Admit

Plaintiff challenges defendant's response to her notice to admit. Dkt. #42.

Defendant responds that it responded to plaintiff's 101 requests for admission in good faith, noting that plaintiff denied its request for an extension of time to be able to consult with a medical expert regarding a number of plaintiff's requests. Dkt. #51, ΒΆΒΆ 12, 21-24. As a result of plaintiff's refusal to grant an extension of time to respond and following consultation with its medical expert, defendant ...


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