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M.V. v. United States

United States District Court, E.D. New York

April 17, 2017

M.V., an infant by his mother and natural guardian LORENA CARPIO, and LORENA CARPIO, individually, Plaintiffs,


          NICHOLAS G. GARAUFIS, United States District Judge.

         Plaintiff M. V., a minor, brought this action against the United States through his mother and natural guardian Lorena Carpio ("Plaintiff or "Carpio"), [1] 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.[2] (Id.) Plaintiff avers that this medical malpractice was the direct proximate cause of her premature labor and delivery of M.V. (Id ¶16.)

         On November 29 and 30, 2016, the court held a bench trial, limited to the issue of liability.[3] 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.


         A. Background

         In August 2012, Carpio was pregnant with a child, M.V., fathered by her boyfriend, Christian Vela. (Bench Trial Tr. ("Tr.") (Dkts. 38, 39)[4] 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.)

         After 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.)

         On 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.)

         On 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.)

         At the 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. 169:10-15.)

         That 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.)

         B. The LFHC's Follow-Up Communications With Carpio

         For the 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 Carpio.

         Pursuant 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).

         The 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.)

         At 1:33 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. 2:1-9.)

         Despite 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.)

         1. Credibility Of The Witnesses

         The 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).

         By 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 ...

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