United States District Court, E.D. New York
SANDRA J. FEUESTEIN, District Judge.
On October 12, 2012, pro se plaintiff Janie Marie McFarland ("McFarland" or "plaintiff') commenced this action against defendant United States of America ("U.S." or "defendant") pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671-2680, seeking to recover damages for negligence and medical malpractice. Defendant has moved for summary judgment which is granted in its entirety.
A. The 56.1 Statements
Both plaintiff and defendant have provided statements pursuant to Local Rule 56.1 Statement. [Docket Entry No. 32 ("Def. 56.1 Stmt."); Docket Entry No. 35 ("Pl. 56.1 Stmt.")]. Plaintiff's 56.1 statement does not comply with the Local Rules of this Court as the only paragraphs in the statement which contains citations to admissible evidence do not "respond to each numbered paragraph in the statement of the moving party." Local Rule 56.1(b). "If the opposing party  fails to controvert a fact so set forth in the moving party's Rule 56, 1 statement, that fact will be deemed admitted." Giannullo v. City of NY., 322 F.3d 139, 140 (2d Cir. 2003) (citing Local Rule 56.1(c)). Accordingly, the uncontroverted facts in defendant's 56.1 statement are admitted.
B. Factual Background
Plaintiff served on active duty in the United States Navy from February 1990 until February 1993, when she was honorably discharged. [Docket Entry No. 36 (Plaintiff s Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment ("Pl. Mem.")), at 2].
On February 28, 2012, plaintiff went to the Department of Veterans Affairs Medical Center, Northport, New York ("Northport VA") for "low back pain" which had "started suddenly on [the previous] Friday when she was getting up from the couch." Def. 56.1 Stmt. ¶ 2; [Docket Entry No. 31 (Declaration of James H. Knapp ("Knapp Decl.")), Ex. B at 6]. The pain suffered by the plaintiff in February 2012 was allegedly "the same kind of pain [she] had when [she] got injured at work a few years [earlier], " which was alleviated by spinal injections. [Docket Entry No. 34 (Declaration of Janie McFarland ("McFarland Aff.")), Ex. C at 1]; Def. 56.1 Stmt. ¶ 1 Knapp Decl., Ex. B at 6. An MRI performed on plaintiffs lumbar spine on February 28, 2012 revealed "degenerative changes of the discs and vertebrae mainly at L4-L5 and L5-S1 with disc herniation..." Del 56.1 Stmt. ¶ 3; Knapp Decl., Ex. B at 12. Plaintiff was discharged from the Northport VA on March 2, 2012. Def. 56.1 Stmt. 5; Knapp Decl., Ex. B at 19. Plaintiff indicated at the time of her discharge that "pain [was] much improved." Knapp Decl., Ex. B at 19. At a March 15, 2012 "follow-up" visit to the Northport VA, plaintiff noted that her most recent pain level was a 5/10 and "that pain control with current therapy [was] acceptable to [her] or [was] being effectively addressed." Def. 56.1 Stmt. 6-7; Knapp Decl., Ex. B at 21.
On April 5, 2012, plaintiff returned to the Northport VA for a physical therapy and rehabilitation consultation. Def. 56.1 Stmt. 8-9; Knapp Decl., Ex. B at 22. Plaintiff alleges that at the time of the April 5, 2012 appointment, she had been "pain-free since March 15, 2012" [Docket Entry No. 1 ("Complaint" or "Compl."), at 5, ¶ 3], but that during this April 5, 2012 examination, the physician at the Northport VA conducted a "knee jerk" examination during which she hit plaintiff's knee four times but plaintiff's knee did not move. Compl., at 6, 1110. Plaintiff contends that when "defendant hit plaintiff's knee a fifth time....defendant whacked' plaintiff's knee extra hard!" and "asked plaintiff to bend [her] right leg" (Compl., at 6, 11, 13) but plaintiff "refused to perform [the] task due to past pain experience." Id. ¶ 13. After defendant allegedly "insisted that plaintiff lift and bend [her] right leg" (Id.), plaintiff "agreed" (Id 14), and "defendant pushed plaintiff's knee toward plaintiff's chest" (Id.), whereupon "[p]laintiff yelled out from pain." Id.
On April 7, 2012, plaintiff presented at the Northport VA emergency room experiencing "severe pain in the lower back, center back (spine) area, base of neck, right hip and tingling up right side of back (around kidney area)." Id. ¶ 16. The emergency room doctor "injected plaintiff with Toradol to temporarily relieve plaintiff of pain and plaintiff was sent home." Id. Plaintiff began treating with Dr. Victor Katz for back and knee pain in June 2012. Def. 56.1 Stmt. ¶ 11; Knapp Decl., Ex. C.
C. Procedural History
On June 4, 2012, plaintiff filed a SF-95 Claim for Damage, Injury, or Death with the Department of Veterans Affairs for medical malpractice, claiming that her examination at the Northport VA on April 5, 2012 was negligently performed and caused her harm. See Compl., at 7-8. On September 20, 2012, the Department of Veterans Affairs sent plaintiff a letter stating that "[a] review of all the circumstances associated with [her] case does not reveal any negligence on the part of the Department of Veterans Affairs or any of its employees." Id. at 7.
On October 12, 2012, plaintiff filed a Complaint asserting claims under the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680. Compl., at 2, ¶ II.B. The complaint alleges that the April 5, 2012 examination of plaintiff "caused injury to [her] left knee, right side of neck, base of neck, right lower back, middle of back (right side), right hip (joint area) and back of right leg" (Compl., at 3, ¶ III.C.) and that these injuries are "a direct result and evidence of defendant's deviation and departure from the accepted practice." Id. at 4, ¶ V. Plaintiff further contends that defendant "did not exercise requisite skills when treating plaintiff' and "failed to elicit all information pertinent to treatment for plaintiff." Id. at 6, ¶ 17. Construing plaintiff's allegations liberally and to raise the strongest arguments they suggest, the Complaint alleges a claim for medical malpractice in connection with the examination plaintiff received at the Northport VA on April 5, 2012. Plaintiff seeks "monetary compensation in the sum of $12, 175, 000 together with any other relief [the] Court finds to be just and proper." Id. at 4, V.
To the extent that complaint also alleges ordinary negligence (see Compl., at 4, § V ("the defendant carried out limited engagement in negligent and improper manner")), these claims sound in medical malpractice, rather than negligence, because they are related to medical diagnosis and treatment and "involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons." Russo v. Shah, 278 A.D.2d 474, 475, 718 N.Y.S.2d 74 (A.D.2d Dep't 2000) ("The distinction between ordinary negligence and malpractice turns on whether the acts or omissions complained of involve a matter of medical science or art requiring special skills not ordinarily possessed by lay persons or whether the conduct complained of can instead be assessed on the basis of the common everyday experience of the trier of facts.") (citing cases); see also Bowen v. Patrick, No. 11-civ-4799, 2012 WL 3743409, at *10-11 (S.D. N.Y. Aug. 29, 2012), report and recommendation adopted, No. 11-civ-4799, 2012 WL 4320537 (S.D.N.Y. Sept. 20, 2012) ("A claim is for medical malpractice, rather than ordinary negligence, if the alleged injury is substantially related to medical diagnosis and treatment.") (citations omitted); Kulak v. Phillips Ambulatory Care Ctr., 21 Misc.3d 1127(A), 873 N.Y.S.2d 512, 2008 WL 4837619, at *2 (N.Y. Civ. Ct. 2008) (finding that plaintiff s allegations of injuries to his right knee caused by defendant doctor during examination sounded in medical malpractice rather than negligence ...