United States District Court, S.D. New York
G.C.W., an infant by his mother and natural guardian, MICHELLE RIVERA, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
MEMORANDUM OPINION AND ORDER
KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
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.
Ms. Rivera's Hyperglycemia
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.
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
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. 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.
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 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
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.
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.) 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
and Defendant proffer different versions of the facts leading
up to Plaintiff's birth.
Plaintiffs Expert's Position
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
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.
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.)
Defendant's Experts' Positions
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
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.)
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 ...