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G.C.W. v. United States

United States District Court, S.D. New York

March 8, 2017

G.C.W., an infant by his mother and natural guardian, MICHELLE RIVERA, Plaintiffs,



         Plaintiff G.C.W. (“Plaintiff”), an infant by his mother and natural guardian, Michelle Rivera, commenced this medical malpractice action against Defendant United States of America under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 1346(b). Plaintiff alleges that Urban Health Plans, Inc. (“UHP”), a federally scoped health clinic, was negligent in its provision of prenatal care to Ms. Rivera, which resulted in injuries to the then-unborn Plaintiff. Plaintiff now moves for partial summary judgment pursuant to Federal Rule of Civil Procedure 56 (“Rule 56”). For the reasons that follow, Plaintiff's motion is DENIED.[1]


         I. Ms. Rivera's Hyperglycemia

         Beginning on August 30, 2013, Plaintiff's mother, Ms. Rivera, received prenatal care from UHP, which is located in the Bronx, New York. On January 10, 2014, a UHP physician ordered a one-hour glucose challenge test for Ms. Rivera. This test resulted in a laboratory finding that Ms. Rivera's glucose levels were higher than UHP's normal reference range. UHP did not advise Ms. Rivera of her high glucose reading until February 7, 2014.

         On February 7, 2014, Ms. Rivera returned to UHP and was ordered to undergo a follow-up three-hour glucose test. The three-hour glucose test was performed on February 10, 2014. The test revealed that Ms. Rivera's glucose levels exceeded the normal range (i.e., that she was hyperglycemic) and that she suffered from gestational diabetes. It is undisputed that, given Ms. Rivera's test results, her pregnancy would be classified as high-risk. Under such circumstances, UHP's policy was to transfer a mother with gestational diabetes to a hospital for further treatment. However, this did not occur in this case.[2]

         On February 12, 2014 at approximately 7:00 p.m., Ms. Rivera went to Montefiore Hospital (“Montefiore”) on her own accord because she was complaining of no fetal movement for that day, decreased fetal movement for the prior three days, nausea, vomiting, increased thirst, and urination.[3] She was approximately 31 weeks pregnant with Plaintiff at this time. At 7:50 p.m., Montefiore admitted Ms. Rivera and diagnosed her with hyperglycemia. Shortly thereafter, Montefiore began treating Ms. Rivera with insulin and her glucose levels began to gradually lower.

         II. Plaintiff's Injuries

         On February 13, 2014, while Ms. Rivera's glucose levels were trending downward towards the normal range, Plaintiff was recorded as having an intrauterine biophysical profile (“BPP”) score of 8/8 at or around 1:35 a.m.[4] A BPP score is “a measure of intrauterine fetal health that incorporates assessments of fetal movement, fetal tone, fetal breathing movements, amniotic fluid volume, and fetal heart rate.” (Declaration of Jeffrey P. Phelan (“Phelan Decl.”) (Doc. No. 68) ¶ 10.) According to Defendant's expert, Dr. Jeffrey Phelan, a BPP score of 8/8 is normal and indicates a healthy fetus.[5]

         At approximately 9:30 a.m. on February 13, 2014, Plaintiff was recorded as having a BPP score of 6/8. Later that day, at around 8:39 p.m., Plaintiff was recorded as having a BPP score of 2/10.

         At approximately 10:45 p.m. on February 13, 2014, Montefiore records reflect that its personnel spoke to Ms. Rivera about concerns regarding Plaintiff's neurological status. Montefiore's records state that it was anticipated that the “issue of whether a delivery would help or whether in utero recovery is expected” would come to the forefront the next day. (Montefiore 0606.)[6] At 3:53 a.m. on February 14, 2014, Montefiore records reflect that Ms. Rivera stated she did not want intrauterine fetal demise and that she “wants the baby out.” (Montefiore 0607.) Montefiore subsequently performed a cesarean section on Ms. Rivera and delivered Plaintiff at 4:12 a.m. Plaintiff, who weighed 3 pounds, nine ounces, required resuscitation and intubation after birth. Plaintiff was admitted to Montefiore's Neonatal Intensive Care Unit. Neurological evaluations conducted after birth indicated that Plaintiff's brain was severely damaged. Plaintiff was subsequently diagnosed with spastic quadriparesis, severe cognitive impairment, cortical blindness, seizures, and spasms.

         Plaintiff and Defendant proffer different versions of the facts leading up to Plaintiff's birth.

         A. Plaintiffs Expert's Position

         In the view of Plaintiff's expert, Dr. Kaleb Yohay, Ms. Rivera's hyperglycemia contributed to Plaintiff's brain injury. Dr. Yohay sets forth three interrelated theories of causation: (1) Ms. Rivera's hyperglycemia caused cell death in Plaintiff's brain; (2) Ms. Rivera's hyperglycemia damaged Plaintiff's brain, which exacerbated any subsequent brain traumas; and (3) the hyperglycemia led to Plaintiff's premature birth. As to the first two theories, Dr. Yohay testified at his deposition that:

the hyperglycemia that [Plaintiff] was exposed to essentially predisposes the brain towards cell death by build up of lactate and hypervolemia ... that by itself could lead to cell death, necrosis .... There may have also been acute injuries superimposed on top of that. But it's not really possible to separate out one from the other. And the acute injury was in my opinion exacerbated - if there was an acute injury it was exacerbated or essentially caused by this chronic issue of hyperglycemia.

(Deposition of Kaleb Yohay, M.D. (“Yohay Dep. Tr.”) 57:3-16; see also Yohay Dep. Tr. 47:14-17.)

         As to the third theory, Dr. Yohay further explained:

[t]he hyperglycemia led to a variety of physiologic changes within the baby and baby's brain that led the baby to be in distress which led to the premature birth, and which contributed to the asphyxia and the inability to let the brain [] respond appropriately to periods of anoxia. So they're all sort of interrelated and intertwined and all resulted in a brain injury.

(Yohay Dep. Tr. 88:7-16.)

         B. Defendant's Experts' Positions

         To rebut Dr. Yohay's findings, Defendant retained two expert witnesses, Dr. Phelan and Dr. Walter Molofsky. Dr. Phelan and Dr. Molofsky each prepared a report summarizing their respective opinions, was deposed by Plaintiff's counsel, and submitted a Declaration in opposition to Plaintiff's motion for summary judgment. The crux of Dr. Phelan's and Dr. Molofsky's opinions is that Ms. Rivera's hyperglycemia did not cause or contribute to Plaintiff's injuries.

         1. Dr. Phelan

         In the Declaration of Jeffrey Phelan (the “Phelan Declaration”) submitted in opposition to Plaintiff's motion for summary judgment, Dr. Phelan opines that, while under the care of Montefiore, Plaintiff fully recovered from the effects of his mother's earlier untreated hyperglycemia, and then an independent event caused Plaintiff's injuries shortly before his birth. Specifically, Dr. Phelan asserts:

• Plaintiff had fully recovered from his mother's earlier untreated hyperglycemia and was neurologically normal at the time he recorded the BPP score of 8/8 in the early morning of February 13, 2014.
• Since Plaintiff fully recovered at Montefiore, “any deviation from the standard of care by healthcare providers at [UHP] had no impact on the injuries subsequently sustained by [Plaintiff.]” (Phelan Decl. ¶ 12.)
• Plaintiff's condition “most likely resulted from a hypoxic event that commenced no earlier than 3:32 a.m. on February 14, 2014, and . . . not the earlier maternal hyperglycemia.” (Phelan Decl. ¶ 17.)
• Based upon a review of the medical records and Plaintiff's cord gas levels, Plaintiff's “asphyxia began between 3:32 a.m. and 3:48 a.m. on February 14, 2014; and his brain damage arose subsequent to 3:32 a.m. and prior to his birth at 4:12 a.m.” (Phelan Decl. ¶ 13.)
• The Neonatal Encephalopathy Committee of the American College of Obstetricians and Gynecologists and the American Academy of Pediatrics (“ACOG/AAP”) has published guidelines for defining intrapartum asphyxia sufficient to produce cerebral palsy. Based upon these guidelines and a review of Plaintiff's medical records, Plaintiff's “birth and neonatal course satisfied the ACOG/AAP criteria for his brain injury to have arisen intrapartum or at the time immediately prior to his birth.” (Phelan Decl. ¶¶ 14-16.)

         In his expert report dated March 28, 2016, Dr. Phelan further opined, inter alia, that UHP did not contribute to or cause Plaintiff's injuries because Plaintiff's “brain damage and organ impairment arose at Montefiore Medical Center at, or around the time of his birth, and/or was contributed to ...

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