United States District Court, E.D. New York
M.V., an infant by his mother and natural guardian LORENA CARPIO, and LORENA CARPIO, individually, Plaintiffs,
THE UNITED STATES OF AMERICA, Defendant.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
NICHOLAS G. GARAUFIS, United States District Judge.
M. V., a minor, brought this action against the United States
through his mother and natural guardian Lorena Carpio
("Plaintiff or "Carpio"),  pursuant to the
Federal Tort Claims Act ("FTCA"), 28 U.S.C.
§§ 1346(b), 2671 et seq. (Verif. Compl.
¶ 1 (Dkt. 5).) Plaintiff alleges that during the course
of her obstetrical and gynecological care and treatment at
the Lutheran Family Health Center (the "LFHC"), a
federally funded clinic, employees of the LFHC Maternal Fetal
Medicine ("MFM") Unit committed medical
malpractice. (Id.) Plaintiff avers that this
medical malpractice was the direct proximate cause of her
premature labor and delivery of M.V. (Id ¶16.)
November 29 and 30, 2016, the court held a bench trial,
limited to the issue of liability. After considering the
evidence at trial, and having reviewed the parties'
post-trial submissions, the court makes the following
Findings of Fact and Conclusions of Law pursuant to Federal
Rule of Civil Procedure 52(a). For the reasons set forth
below, the court finds that the United States is not liable
to Plaintiff under the FTC A.
FINDINGS OF FACT
August 2012, Carpio was pregnant with a child, M.V., fathered
by her boyfriend, Christian Vela. (Bench Trial Tr.
("Tr.") (Dkts. 38, 39) 123:21; Tr. 125:4-6.) Prior
to her pregnancy with M.V., Carpio had two pregnancies that
ended in preterm deliveries. (Tr. 146:7-15.) Both of her
preterm deliveries were the result of a premature rupture of
her membranes. (Tr. 249:14-19.) Because of her history of
preterm deliveries, Carpio knew that her pregnancy with M.V.
was a high-risk pregnancy. (Tr. 146:9-15.)
learning she was pregnant with M.V., Carpio initially went to
the Willoughby Clinic in Downtown Brooklyn for prenatal care.
(Tr. 125:16-22.) The Willoughby Clinic told Carpio that she
needed to go a hospital that specialized in high-risk
pregnancies so Carpio went to the LFHC. (Tr. 127:21-128:6.)
On August 18, 2012, Carpio had an appointment with a
certified nurse midwife at the LFHC. (Tr. 146:16-25.) The
midwife scheduled a series of follow-up appointments for
Carpio, including an appointment on September 27, 2012, for a
sonogram. (Tr. 128:21-24; Tr. 147:1-3.)
September 27, 2012, Carpio had a sonogram at the LFHC's
MFM Unit. (Tr. 129:24-130:1; PL Ex. 1 at CARPIO LUTHERAN
MEDICAL CENTER ("CLMC") 000010.) The sonogram
showed that Carpio's cervix measured 1.8 centimeters, a
shorter than average measurement. (Tr. 201:16-202:3; Tr.
239:8-22; PL Ex. 1 at CLMC 000042.) Carpio was told that she
needed to return to the MFM Unit for a follow-up appointment
on October 4, 2012. (Tr. 128:19-129:3; Tr. 130:10-24.) In
fact, she was told it was an "emergency... for [her] to
come [back]" to the clinic. (Tr. 128:19-129:5.)
October 4, 2012, Carpio took a taxi from Vela's apartment
in Brooklyn to the LFHC for her follow-up appointment. (Tr.
131:2-21; Tr. 154:6-12.) Carpio had a sonogram performed by
Sonia Serrano, an ultrasound technician, in the MFM Unit.
(Tr. 284:21-285:7; Tr. 280:23-24; see PL Ex. 1 at
CLMC 000146.) The sonogram started at approximately 1:40 p.m.
and was completed at approximately 1:55 p.m. (Tr. 294:17-20.)
The sonogram showed that Plaintiffs cervix measured 1.4
centimeters (PL Ex. 1 at CLMC 000146), shorter than the 1.8
centimeter measurement at her appointment on September 27,
2012 (Tr. 207:5-8). The sonogram also showed tunneling of the
cervix and the presence of amniotic fluid or
"sludge." (PL Ex. 1 at CLMC 000146.)
conclusion of the sonogram, Serrano told Plaintiff to get
dressed and wait in the MFM Unit's reception area to
speak with a doctor. (Tr. 132:25-133:11; Tr. 134:21:135:1.)
After waiting at reception for some time, Plaintiff asked the
receptionist if she could leave, explaining that she needed
to pick up her daughter, Dynasty, from school at 2:30 p.m.
that day. (Tr. 135:2-20.) The receptionist told Plaintiff
that she needed to wait for the doctor. (Tr. 135:3-13; Tr.
148:6-8.) Shortly thereafter, Plaintiff told the receptionist
that she had to leave. (Tr. 148:9-13.) The receptionist asked
Plaintiff to leave a contact number. (Tr. 148:9-13.)
Plaintiff provided Vela's cell phone number and left the
MFM Unit. (Tr. 148:9-16; Gov't Ex. B at CARPIO SUNSET
PARK ("CSP") 000004; see also Tr.
same day, Dr. Iffath Hoskins, the attending physician
assigned to the MFM Unit that day, reviewed the results of
Carpio's October 4, 2012, sonogram and determined that
Carpio needed to go to the LFHC's Labor and Delivery Unit
("Labor and Delivery") for further testing. (Tr.
217:2-218:22.) Labor and Delivery would test for an
underlying infection (Tr. 217:22-218:8) and also conduct a
fetal fibronectin test, which provides information as to
whether a patient might deliver within the next 7 to 10 days
(Tr. 220:24-221:19). Dr. Hoskins instructed Arlene Nassr, the
supervisor of the MFM Unit, to contact Carpio by telephone
and advise her to go to Labor and Delivery. (Tr. 31:11-21.)
The LFHC's Follow-Up Communications With Carpio
reasons set forth infra in Section I.B.I., the
following factual findings are based on Nassr's testimony
concerning the LFHC's follow-up communications with
to Dr. Hoskins's instructions, Nassr placed several calls
to Vela's cell phone- the contact number Carpio had left
with the MFM Unit's reception-in an effort to contact
Carpio. Nassr first called Vela's cell phone on October
4, 2012, at 3:35 p.m. (Tr. 33:1-7; Tr. 290:16-21.) There is
no evidence that Nassr spoke to Vela at that particular time.
Nassr placed a second call to Vela's cell phone at 4:02
p.m. that day and reached Vela, however. (Tr. 34:12-21; Tr.
291:3-6.) Nassr told Vela that she needed to speak with
Carpio and that Carpio needed to come back to Labor and
Delivery as soon as possible. (Tr. 34:24-35:8.) Nassr
contemporaneously documented this call in the LFHC's
medical records; her notes indicate that Vela told her that
he would contact Carpio and advise her to go to Labor and
Delivery for further testing as soon as possible as per Dr.
Hoskins's instructions. (Tr. 44:11-45:10; Gov't Ex.
B. at CSP 000004.) At 6:12 p.m. on October 4, 2012, someone
called the clinic from Vela's cell phone. (Tr. 291:7-9.)
The call lasted only 21 seconds (id.) and Nassr does not
recall speaking to Vela at this time (Tr. 37:20-4).
following morning, on October 5, 2012, Nassr checked to see
whether Carpio had gone to Labor and Delivery and learned
that she had not yet returned to the clinic. (Tr. 38:5-13.)
At 9:16 a.m. on October 5, 2012, Nassr placed another call to
Vela's cell phone (Tr. 291:10-13; Tr. 39:5-17) as it was
the custom and practice of the MFM Unit to follow up with a
patient until someone from the office spoke directly with the
patient (Tr. 38:14-39:4). Vela answered Nassr's call;
Nassr reiterated to Vela that it was important that Carpio
come to Labor and Delivery that day. (Tr. 39:5-17.) Vela said
that he had given Carpio the previous message and that Carpio
would be coming in that day. (Tr. 46:13-18; Gov't Ex. B.
at CSP 000003.) At approximately 1:00 p.m. that same day,
Nassr documented that she had spoken with Vela earlier that
day and that Carpio still had not come to Labor and Delivery.
(Gov't Ex. B at CSP 000003; Tr. 39:20-24.)
p.m., Carpio called the MFM Unit using Vela's cell phone.
(Tr. 291:4-16; Tr. 41:2-4.) Carpio placed the call from, or
very nearby, Vela's apartment. (Tr. 294:9-15.) Nassr told
Carpio that she needed to come to Labor and Delivery and
Carpio said she understood and agreed to go to Labor and
Delivery that same day. (Tr. 41:2-9.) Nassr did not discuss
Carpio's medical condition with her. (Tr. 41:21-25.)
Nassr documented her conversation with Carpio shortly
thereafter. (Tr. 41:10-17; see Gov't Ex. B at CSP
000002.) After their conversation, Nassr felt her task was
complete and did not follow up with Carpio further. (Tr.
the fact that Carpio agreed to go to Labor and Delivery on
October 5, 2012, she never actually returned to the clinic
for further testing. (Tr. 240:14-241:15.) The next time
Carpio sought medical attention was on October 15, 2012, when
she gave birth to M.V. prematurely at Kings County Hospital.
(Tr. 145:6-20.) Notably, when Carpio presented at the
hospital on October 15, 2012, she was having irregular
contractions, was 2 centimeters dilated, and 50 percent
effaced. (Tr. 250:3-9.)
Credibility Of The Witnesses
parties dispute certain key facts concerning the LFHC's
communications with Carpio and Vela after Carpio's
October 4, 2012, sonogram. As documented above, Nassr recalls
speaking with both Vela and Carpio about the need for Carpio
to return to the clinic for further testing. Yet Carpio and
Vela deny that they ever spoke with anyone from the LFHC
after Carpio's sonogram. The court finds that Nassr's
testimony is credible and corroborated by Nassr's
contemporaneous notes of her telephone conversations
(see Gov't Ex. B) and the AT&T phone records
for Vela's cell phone (see Gov't Ex. C; Tr.
292:23-294:20 (stipulation concerning phone records).
contrast, Vela and Carpio's testimony regarding their
communications with the LFHC defies common sense, is
contradicted by the documentary evidence introduced at trial,
and is often internally inconsistent. Vela's testimony
that he does not remember getting any phone calls from the
LFHC about Carpio (Tr. 177:13-25; Tr. 185:12-186:4) is flatly
belied by Carpio's medical records and his own cell phone
records. In addition, Vela's testimony about whether
Carpio uses his cell phone is internally inconsistent. Vela
testified during his deposition that Carpio "never"
used his cell phone. (Tr. 181:16-11; 182:19-10.) During his
direct examination at trial, however, he testified that
Carpio "of course" used his cell ...