United States District Court, N.D. New York
SANDRA QUINN, individually and as administratrix of the estate of E.Q., deceased; and PETER QUINN, individually, Plaintiffs,
UNITED STATES; MARY ALLEN, D.O.; and SAMARITAN MEDICAL CENTER, Defendants
[Copyrighted Material Omitted]
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For Plaintiffs: JAMES P. FITZGERALD, ESQ., OF COUNSEL, FITZGERALD & FITZGERALD, LLP, Yonkers, NY.
For United States: WILLIAM F. LARKIN, ESQ., Assistant United States Attorney, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney for the N.D.N.Y., Syracuse, NY.
For Mary Allen, D. O.: BRIAN M. GARGANO, ESQ., OF COUNSEL, MARTIN, GANOTIS, BROWN, MOULD & CURRIE, LLP, Syracuse, NY.
For Samaritan Medical Center: JENNIFER PLOETZ WILLIAMS, ESQ., STEPHEN T. HELMER, ESQ., OF COUNSEL, MACKENZIE HUGHES LLP, Syracuse, NY.
DECISION and ORDER
Hon. Glenn T. Suddaby, United States District Judge.
Currently before the Court, in this medical malpractice action filed by Sandra Quinn, individually and as administratrix of the estate her deceased infant daughter, E.Q., and Peter Quinn, individually (" Plaintiffs" ) against the United States; Mary Allen, D.O. (" Dr. Allen" ); and Samaritan Medical Center (" SMC" ) (collectively, " Defendants" ), are motions for partial summary judgment by Defendants United States and Allen and a motion for summary judgment by Defendant SMC. (Dkt. Nos. 55, 56, 57.) For the reasons set forth below, the motion for partial summary judgment by Defendant United States is granted, the motion for partial summary judgment by Defendant Allen is granted in part and denied in part, and the motion for summary judgment by Defendant SMC is granted in part and denied in part.
I. RELEVANT BACKGROUND
A. Plaintiffs' Amended Complaint
Generally, Plaintiffs' Amended Complaint asserts five causes of action stemming from Ms. Quinn's pre-natal care and her delivery of E. Q. as well as E.Q.'s post-natal medical treatment and death. ( See generally Dkt. No. 16 [Pls.' Am. Compl.].)
More specifically, Plaintiffs' Amended Complaint alleges: (1) conscious pain and suffering of E.Q. as a result of Defendants' negligence and malpractice; (2) lack of informed consent by Ms. Quinn and E.Q. against all Defendants; (3) wrongful death of E.Q. against all Defendants; (4) intentional infliction of emotional distress by Plaintiffs against Defendants Allen and SMC; and (5) negligent infliction of emotional distress by Plaintiffs against Defendants Allen and SMC. ( Id.)
B. Recitation of Undisputed Facts
The following material facts have been asserted and supported by one or more Defendants in their Local Rule 7.1 Statements of Undisputed Material Facts, and either admitted or denied without a supporting record citation by Plaintiffs in their Local Rule 7.1 Responses, or unopposed by Plaintiffs. ( See Dkt. No. 55-3 [Def. United States' Unopposed Rule 7.1 Statement.]) ( Compare Dkt. No. 56-2 [Def. Allen's Rule 7.1 Statement] with Dkt. No. 63-53 [Pl.'s Rule 7.1 Response].) ( Compare Dkt. No. 59 [Def. SMC's Rule 7.1 Statement] with Dkt. No. 64-56 [Pl.'s Rule 7.1 Response].)
Prior to the birth of E.Q., Ms. Quinn received pre-natal care at the Guthrie/Fort Drum OB Clinic from Certified Nurse-Midwife Jennifer Apke and Dr. Elizabeth Lucal, both United States employees. On March 27, 2007, Plaintiffs went to SMC because Ms. Quinn was complaining of decreased fetal movement at approximately 32 weeks' gestation. During her visit to SMC on March 27, 2007, Ms. Quinn was treated and released by Dr. Byers, also a United States employee.
On April 3, 2007, Ms. Quinn, accompanied by Mr. Quinn, again presented to SMC with complaints of decreased fetal
movement, where she was treated by Dr. Lucal. E.Q. was delivered by non-emergent Cesarean section due to non-reassuring fetal status at 2:52 p.m. After delivery, E.Q. was treated by Dr. Allen. E.Q. was intubated, and then transferred to the Neonatal Intensive Care Unit (NICU). Dr. Allen examined E.Q. and noted that she exhibited a blanched pallor, absent respiratory effort, and metabolic acidosis. Medical records reflect that E.Q. began seizure activity shortly after admission to the NICU. Dr. Allen kept E.Q. on a ventilator and ordered laboratory studies, Phenobarbital and intravenous hydration. At 4:00 p.m., Dr. Allen ordered an emergency request for a blood transfusion with O Negative blood. At 4:30 p.m., E.Q. was given 40 ccs of packed red blood cells.
The blood bank provided blood to the NICU for E.Q.'s transfusion. The Emergency Request for Uncrossmatched Blood form reflects that two blood transfusion service technicians recorded that a unit of type O Negative blood, with identification number 01KK05804A, was released. The Laboratory Discharge Summary Report also reflects the blood type of unit number 01KK05804A as O Negative. However, the Unit Issue Card from the blood bank reflects that the blood in unit identification number 01KK05804A was type A Positive. The technicians identified on the Emergency Request form are the same technicians identified on the Unit Issue Card. The Unit Transfusion Card, reflects that the blood being provided, with identification number 01KK05804A, was type A Positive. The Unit Transfusion Card is signed by the registered nurse (" RN" ) who administered it, as well as the RN who verified it.
Records reflect a slight change in color after the transfusion, but that eventually, E.Q.'s status deteriorated. Dr. Allen consulted with Dr. Tom Curran at Crouse Medical Center in Syracuse, who suggested that Dr. Allen " stop efforts" because E.Q.'s arterial blood gas was " incompatible with life."  Life support was removed, and E.Q. was pronounced dead at 6:39 p.m.
Plaintiffs executed an authorization for post-mortem examination of E.Q. on April 3, 2007. Specifically, Plaintiffs authorized SMC to " perform a complete post mortem examination to determine the cause of
death or to verify the cause of death, or" to determine " complications contributing to cause of death."  Plaintiffs selected TLC Funeral Home for E.Q. Ms. Quinn was discharged from SMC on April 5, 2007 at 10:15 a.m. E.Q.'s body was released to TLC Funeral Home on April 5, 2007 at 4:20 p.m., without an autopsy having been performed.
According to Dr. Allen, she had a conversation with the pathologist approximately two to three days after E.Q.'s death, when she was notified that an autopsy had not been performed because E.Q.'s blood loss was so extreme, it was not appropriate to perform an autopsy. Dr. Allen called Plaintiffs to notify them that an autopsy had not been performed and relayed to Mr. Quinn that an autopsy had not been performed due to extreme blood loss. According to Dr. Allen, she did not agree with the pathologist that an autopsy did not need to be performed on E.Q., nor did she tell the pathologist not to perform the autopsy. Dr. Allen testified that she did not remember the name of the pathologist with whom she spoke, but said that " she was foreign and had an accent." 
Dr. Yilin Zhang is a staff pathologist at SMC, whose responsibilities include performing autopsies. Dr. Zhang testified that she does not recall telling a physician in the NICU at SMC that an autopsy could not be performed on E.Q. due to insufficient blood in the vascular system. Dr. Zhang further testified that insufficient blood in the vascular system is not a valid reason for not performing an autopsy.
C. Relevant Procedural Background
On November 9, 2007, Ms. Quinn filed a Form 95 with the U.S. Department of the Army, alleging negligence in the medical care and treatment provided to her by employees of the Fort Drum OB-GYN Clinic, resulting in the pain and suffering and wrongful death of her daughter, E.Q., occurring on April 3, 2007. Mr. Quinn did not submit an administrative claim to the U.S. Department of the Army.
On November 19, 2007, Ms. Quinn commenced an action in the Supreme Court of the State of New York, Jefferson County, against Dr. Allen and SMC as well as C.N.M. Apke, Dr. Lucal, Dr. Byers, Fort Drum OB-GYN Clinic and Guthrie Ambulatory Health Care Clinic, alleging medical malpractice. That action was discontinued against all defendants except Dr. Allen and SMC on the grounds that the dismissed defendants were protected employees or entities of the United States.
On July 10, 2009, Ms. Quinn commenced this action by filing a complaint against the United States asserting claims of medical malpractice under the Federal Tort Claims Act (" FTCA" ).
On October 5, 2009, Plaintiffs Mr. and Ms. Quinn commenced an action in the Supreme Court of the State of New York, Jefferson County, against Dr. Allen and SMC, asserting claims of intentional infliction of emotional distress and negligent infliction of emotional distress stemming from allegations that the defendants failed to perform an autopsy on E.Q.
A motion to amend the complaint in this federal court action to join the two complaints pending in State Court was granted. Plaintiffs subsequently amended their complaint on February 9, 2010.
D. Parties' Arguments on Their Motions
1. Motion for Partial Summary Judgment by the United States
Generally, in its memorandum of law, the United States asserts the following arguments: (1) this Court lacks subject matter jurisdiction of the claims against it by Mr. Quinn because he failed to timely submit an administrative claim pursuant to 28 U.S.C. § 2675(a) and (2) punitive damages may not be awarded against the United States in a Federal Tort Claims Act action pursuant to 28 U.S.C. § 2674. ( See generally Dkt. No. 55-2, at 5-6 [Def. United States' Mem. of Law].)
Plaintiffs have not opposed this motion.
2. Motion for Partial Summary Judgment by Dr. Allen
Generally, in her memorandum of law, Dr. Allen asserts the following arguments: (1) Plaintiffs' claim for intentional infliction of emotional distress should be dismissed because it is time-barred; (2) Plaintiffs' claim for negligent infliction of emotional distress should be dismissed because Plaintiffs were not threatened with physical injury; (3) Plaintiffs' claim based on transfusion of an incompatible blood type should be dismissed because the appropriate blood product was transfused; and (4) Plaintiffs are not entitled to punitive damages because there is no evidence to suggest that Dr. Allen acted with the requisite state of mind. ( See generally Dkt. No. 56-1, at 5-11 [Def. Allen's Mem. of Law].)
Generally, in their opposition memorandum of law, Plaintiffs assert the following arguments: (1) Dr. Allen and SMC were negligent in providing care and treatment to E.Q., which malpractice caused and/or contributed to E.Q.'s death; (2) E.Q. was administered incompatible blood; (3) Plaintiffs' negligent infliction of emotional distress claim should not be dismissed because it is based on the negligent handling of a corpse pursuant to Schultes v. Kane, 856 N.Y.S.2d 684, 50 A.D.3d 1277 (N.Y.App.Div. 2008); and (4) Plaintiffs' claim for punitive damages should not be dismissed because they have presented facts from which a jury could conclude that the failure of Dr. Allen and SMC to perform an autopsy on E.Q. was for the purpose of preventing discovery of the incompatible blood that had been transfused into E.Q. ( See generally Dkt. No. 63-52, at 1-7 [Pls.' Opp'n Mem. of Law].)
Generally, in her reply memorandum of law, Dr. Allen asserts the following arguments: (1) Plaintiffs' claim for intentional infliction of emotional distress should be dismissed because they have failed to dispute that it is time-barred; (2) Plaintiffs have failed to assert a legal basis for their claim of negligent infliction of emotional distress, warranting its dismissal; (3) Plaintiffs are not entitled to punitive damages because they do not have a valid cause of action for the acts or omissions they allege warrant punitive damages; (4) Plaintiffs' argument in the first point of their memorandum of law should not be considered because it opposes relief not sought by Allen; (5) the New York State Department of Health report, which reflects the finding that the appropriate blood product was administered to E.Q., is admissible and may not be rebutted by the speculative opinion of Plaintiffs' medical witness; and (6) Plaintiffs' response to Dr. Allen's Statement of Material Facts fails to comply with Local Rule 7.1(a)(3). ( See generally Dkt. No. 75, at 1-10 [Def. Allen's Reply. Mem. of Law].)
3. Motion for Summary Judgment by SMC
Generally, in its memorandum of law, SMC asserts the following arguments: (1) Plaintiffs cannot state a claim for " conscious
pain and suffering" against SMC because (a) it is not vicariously liable for the acts of the United Sates employees or Dr. Allen, (b) E.Q. was administered the correct blood type, and (c) no claim for " conscious pain and suffering" exists for the failure to perform an autopsy, which necessarily occurred after E.Q.'s death; (2) Plaintiffs cannot state a claim for wrongful death against SMC because (a) it is not vicariously liable for the acts of United States employees or Dr. Allen, (b) the correct blood type was administered to E.Q. and did not cause or contribute to her death, and (c) the only acts of negligence alleged against SMC occurred after E.Q.'s death and cannot give rise to a claim for wrongful death; (3) Plaintiffs' claim for intentional infliction of emotional distress should be dismissed because (a) it is time barred, (b) even if not time-barred, the allegations against SMC do not rise to the level of conduct necessary to support a claim, and (c) Plaintiffs' allegations of a " cover up" are speculative and conclusory and were not sufficiently pleaded in the Amended Complaint; (4) Plaintiffs' claim for negligent infliction of emotional distress should be dismissed because the alleged conduct of SMC never unreasonably endangered Plaintiffs' physical safety; (5) SMC cannot be liable for lack of informed consent because (a) none of the physicians who performed the underlying medical procedures were employed by SMC and (b) a claim for lack of informed consent is not viable where it is based on the failure to obtain informed consent for actions or inactions that are to be taken on a deceased ...