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Hernandez v. United states

United States District Court, S.D. New York

August 3, 2017

ELIDETH BAUTISTA HERNANDEZ, individually and as mother and natural guardian of M.H., an infant, Plaintiff,
UNITED STATES OF AMERICA, Defendant. M.H., an infant, by his mother and natural guardian, Elideth Bautista Hernandez, Plaintiff,

          Denise A. Rubin, Esq. Rubin Law, PLLC New York, NY Counsel for Plaintiffs

          Keith D. Silverstein, Esq. Keith D. Silverstein & Associates, P.C. New York, NY Counsel for Plaintiffs

          Anthony J. Sun, Esq. U.S. Attorney's Office SDNY New York, NY Counsel for Defendant

          OPINION & ORDER

          KENNETH M. KARAS, District Judge

         Elideth Bautista Hernandez (“Ms. Hernandez”), individually and as mother and natural guardian of M.H., an infant and M.H., an infant by his mother and natural guardian, Ms. Hernandez (together, “Plaintiffs”), bring these consolidated Actions against the United States of America (the “Government”), Jacquiline Yvonne Todd (“Dr. Todd”), Wico Chu (“Dr. Chu”), and Orange Regional Medical Center (“ORMC, ” and collectively, “Defendants”), pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346, 2401, 2671-80. Plaintiffs assert claims for medical malpractice, failure to provide informed consent, and negligent hiring, screening, and training. (See Compl. (Dkt. No. 41, 16-CV-2211 Dkt.); Notice of Removal Ex. A (Dkt. No. 1, 16-CV-3139 Dkt.).)[1] Before the Court is the Government's Motion for Summary Judgment (the “Motion”). (See Dkt. No. 35.)[2] For the reasons to follow, the Government's Motion is granted.

         I. Background

         A. Factual Background

         Plaintiff Ms. Hernandez was a prenatal patient at Middletown Community Health Center, Inc. (“MCHC”) in 2006, while she was pregnant with her first child, and again in 2007, while pregnant with M.H. (See Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (“Gov't's 56.1”) ¶¶ 11-12 (Dkt. No. 37); Pls.' Resp. to United States' Statement of Undisputed Facts Pursuant to Local Civil Rule 56.1 (“Pls.' 56.1”) ¶¶ 11-12 (Dkt. No. 45).) On November 24, 2007, because she had not felt her baby move for two days, Ms. Hernandez went to MCHC where she was examined and instructed to go to the hospital at ORMC. (See Gov't's 56.1 ¶ 13; Pls.' 56.1 ¶ 13.)[3] M.H. was born shortly after Ms. Hernandez arrived at ORMC. (See Gov't's 56.1 ¶ 14; Pls.' 56.1 ¶ 14.)[4] “M.H. was floppy, cyanotic, [and] unresponsive shortly after birth.” (Gov't's 56.1 ¶ 15; Pls.' 56.1 ¶ 15 (internal quotation marks omitted).) Shortly after M.H. was born, Ms. Hernandez “was aware that M.H. was not breathing properly, and . . . required intubation” and that M.H. “had difficulty breathing due to a convulsion or seizure.” (Gov't's 56.1 ¶¶ 16-17; Pls.' 56.1 ¶¶ 16-17.) Ms. Hernandez was told prior to her discharge from ORMC that M.H.'s seizures were caused by a lack of oxygen to his brain and that this loss of oxygen “was related to the fact that he did not move for one day while in the womb.” (Gov't's 56.1 ¶ 19; Pls.' 56.1 ¶ 19 (internal quotation marks omitted).) Following M.H.'s birth, Ms. Hernandez was told by a neurologist that M.H. had encephalopathy. (See Gov't's 56.1 ¶ 20; Pls.' 56.1 ¶ 20.)[5] M.H. has been on phenobarbital to reduce his risk of convulsions and seizures since shortly after his birth. (See Gov't's 56.1 ¶ 21; Pls.' 56.1 ¶ 21.)

         On January 23, 2008, M.H. was evaluated by Ages & Stages, LLP, Therapeutic and Educational Services, where staff performed both an Initial Multidisciplinary Developmental Assessment and a Supplemental Physical Therapy Evaluation. (See Gov't's 56.1 ¶ 22; Pls.' 56.1 ¶ 22.) The reports noted, among other findings, that “M.H. was born cyanotic, unresponsive and was not breathing for several minutes after birth, ” that “M.H. had moderate hypotonia (floppiness) and . . . diffuse decreased attenuation due to hypoxic insult, ” and that M.H. was “at risk for developmental delay . . . and his pediatrician had concern with microcephaly for developmental delay.” (Gov't's 56.1 ¶ 23; Pls.' 56.1 ¶ 23 (internal quotation marks omitted)). Ms. Hernandez participated in the assessments and a Spanish-language translator was present. (See Gov't's 56.1 ¶ 23; Pls.' 56.1 ¶ 23.) The results of the assessments were reviewed with M.H.'s family. (See Gov't's 56.1 ¶¶ 25, 27; Pls.' 56.1 ¶¶ 25, 27.)

         On May 19, 2008, M.H. underwent a pediatric neurologic evaluation performed by Dr. Ronald I. Jacobson. (See Gov't's 56.1 ¶ 28; Pls.' 56.1 ¶ 28.) Dr. Jacobson's report found that M.H. was “born after an emergency caesarean section with decreased fetal activity and eventually determined to have hypoxic ischemic encephalopathy, secondary microcephaly, and neonatal seizures, ” along with “generalized [brain] atrophy and injury.” (Gov't's 56.1 ¶ 29; Pls.' 56.1 ¶ 29 (alteration and internal quotation marks omitted).) Dr. Jacobson noted that there was “no . . . family history of similar problems or seizures, ” and reviewed all of his findings with Ms. Hernandez and her husband. (Gov't's 56.1 ¶¶ 29-30; Pls.' 56.1 ¶¶ 29-30 (alteration and internal quotation marks omitted).)

         Ms. Hernandez testified that when M.H. was approximately one year old, her husband told her that M.H.'s condition may have been caused by doctors who “did not tell M.H.'s parents the problem that M.H. had” and “did not tend to . . . M.H.'s parents at the clinic before M.H. was born.” (Gov't's 56.1 ¶¶ 31-32; Pls.' 56.1 ¶¶ 31-32 (alterations and internal quotation marks omitted).) Ms. Hernandez's sister expressed similar “concern that M.H.'s conditions may have been caused by doctors or nurses, ” and suggested that Ms. Hernandez contact an attorney. (Gov't's 56.1 ¶¶ 33-34; Pls.' 56.1 ¶¶ 33-34.) Ms. Hernandez testified that she chose not to contact an attorney at that time because “she thought that it was God's will[] that the child's condition was [M.H.'s parents'] lot in life.” (Gov't's 56.1 ¶ 36; Pls.' 56.1 ¶ 36 (internal quotation marks omitted).)

         In April 2010, Ms. Hernandez told early intervention providers during a Bilingual Occupational Therapy Evaluation that “M.H. was the product of a normal pregnancy up until [eight] months gestation when complications arose.” (Gov't's 56.1 ¶ 37; Pls.' 56.1 ¶ 37 (internal quotation marks omitted).) Ms. Hernandez explained that “[s]he was not feeling the baby moving and they discovered that he was not receiving oxygen to his brain and he was delivered via caesar[e]an section.” (Gov't's 56.1 ¶ 37; Pls.' 56.1 ¶ 37 (internal quotation marks omitted).) The evaluation noted that “M.H. . . . demonstrate[d] significant delays in all areas including fine motor, sensory processing, and self[-]management abilities, ” and that “M.H. suffered post-natal seizures and there were abnormal findings on a CT scan and MRI, ” and that M.H. “has a diagnosis of seizures, microcephaly, hypoxic-ischemic encephalopathy and global development delays.” (Gov't's 56.1 ¶¶ 38-39; Pls.' 56.1 ¶¶ 38-39 (internal quotation marks omitted).) The results of the evaluation were shared with Ms. Hernandez. (See Gov't's 56.1 ¶ 38; Pls.' 56.1 ¶ 38.)

         A second evaluation conducted one week later on May 3, 2010, noted that “M.H. was reportedly born cyanotic, unresponsive, and not breathing for several minutes[, ] . . . had to be resuscitated and . . . intubated in the operating room due to poor respiratory effort.” (Gov't's 56.1 ¶ 40; Pls.' 56.1 ¶ 40 (internal quotation marks omitted).) Additionally, M.H.'s “language skills were rated 2 standard deviations below the mean for his chronological age.” (Gov't's 56.1 ¶ 41; Pls.' 56.1 ¶ 41 (internal quotation marks omitted).) Ms. Hernandez reported in May 2010 that she began to worry about M.H. “at birth” and that he has received “physical therapy, speech therapy, and occupational therapy” since he was an infant. (Gov't's 56.1 ¶¶ 42-43; Pls.' 56.1 ¶¶ 42-43 (alteration and internal quotation marks omitted).)

         In 2011, a social worker suggested to Ms. Hernandez that she contact an attorney in connection with M.H.'s condition. (See Gov't's 56.1 ¶ 44; Pls.' 56.1 ¶ 44.) On July 18, 2012, Ms. Hernandez signed a retainer agreement with Silverstein & Stern, LLP because “she did not see progress in her child's condition.” (Gov't's 56.1 ¶¶ 45-46; Pls.' 56.1 ¶¶ 45-46 (alteration and internal quotation marks omitted).)

         B. Procedural History

         On May 19, 2015, Ms. Hernandez filed a complaint in the Supreme Court of the State of New York, Orange County, on behalf of her infant son, M.H., against Nurse Pamela Peterson (“Nurse Peterson”), MCHC, Dr. Christopher Allen (“Dr. Allen”), Nurse Fran Ralson (“Nurse Ralson”), Dr. Lynne DiCostanzo (“Dr. DiCostanzo”), Dr. Todd, Dr. Chu, and ORMC. (See Gov't's 56.1 ¶ 1; Pls.' 56.1 ¶ 1.)

         On March 28, 2016, Plaintiffs Ms. Hernandez and M.H. filed an action in federal court, assigned docket number 16-CV-2211, against MCHC, Nurse Peterson, Dr. Allen, Nurse Ralson, and Dr. DiCostanzo (the “FTCA Action”). On April 27, 2016, Ms. Hernandez's state-court action was removed to this Court and assigned docket number 16-CV-3139 (the “Removed Action”). (See Notice of Removal (Dkt. No. 1, 16-CV-3139 Dkt.).) On May 10, 2016, the Actions were consolidated pursuant to a memo endorsement from the Court. (See Dkt. No. 9.)

         Pursuant to an Order issued May 25, 2016, the Parties engaged in limited discovery on the issue of equitable tolling. (See Dkt. Nos. 20, 28.) On May 26, 2016, the United States was substituted as Defendant in place of MCHC, Nurse Peterson, Dr. Allen, Nurse Ralson, and Dr. DiCostanzo in both Actions, pursuant to the FTCA. (See Dkt. No. 23.)

         The Government filed the instant Motion for Summary Judgment and accompanying papers on January 27, 2017. (See Dkt. Nos. 35-38.) Plaintiffs filed their papers in opposition on March 6, 2017. (See Dkt. Nos. 42-47.) Included in Plaintiffs' submission was a letter motion requesting leave to file excess pages, (see Dkt. No. 42), as well as a notice of cross-motion by Plaintiffs for equitable tolling, (see Dkt. No. 43). The following day, the Government filed a letter seeking leave to strike Plaintiffs' cross-motion and 56.1 statement in support of the motion as contrary to the Court's December 7, 2016 Scheduling Order, unnecessary, and moot. (See Dkt. No. 48.) Plaintiffs filed a letter in response on the same day. (See Dkt. No. 49.) In a memo endorsement issued on March 8, 2017, the Court granted the Government's motion to strike and denied Plaintiffs' cross-motion. (See Dkt. No. 50.) The Government filed its reply papers in further support of the Motion on March 20, 2017. (See Dkt. Nos. 54-56.)

         On March 25, 2017, Plaintiffs filed a letter seeking leave to file a sur-reply, (see Dkt. No. 57), and on March 27, 2017, the Government filed a letter in response, (see Dkt. No. 58). In a memo endorsement issued on March 27, 2017, the Court informed the Parties that Plaintiffs' letter would be considered by the Court as the sur-reply and that “[n]othing more [wa]s needed.” (See Dkt. No. 59.)

         II. Discussion

         A. Standard of Review

         Summary judgment is appropriate where the movant shows that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 123-24 (2d Cir. 2014) (same). “In determining whether summary judgment is appropriate, ” a court must “construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (internal quotation marks omitted); see also Borough of Upper Saddle River v. Rockland Cty. Sewer Dist. No. 1, 16 F.Supp.3d 294, 314 (S.D.N.Y. 2014) (same). Additionally, “[i]t is the movant's burden to show that no genuine factual dispute exists.” Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004); see also Aurora Commercial Corp. v. Approved Funding Corp., No. 13-CV-230, 2014 WL 1386633, at *2 (S.D.N.Y. Apr. 9, 2014) (same). “However, when the burden of proof at trial would fall on the nonmoving party, it ordinarily is sufficient for the movant to point to a lack of evidence to go to the trier of fact on an essential element of the nonmovant's claim, ” in which case “the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment.” CILP Assocs., L.P. v. Pricewaterhouse Coopers LLP, 735 F.3d 114, 123 (2d Cir. 2013) (alteration and internal quotation marks omitted). Further, “[t]o survive a [summary judgment] motion . . ., [a nonmovant] need[s] to create more than a ‘metaphysical' possibility that his allegations were correct; he need[s] to ‘come forward with specific facts showing that there is a genuine issue for trial, '” Wrobel v. County of Erie, 692 F.3d 22, 30 (2d Cir. 2012) (emphasis omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and “cannot rely on the mere allegations or denials contained in the pleadings, ” Walker v. City of New York, No. 11-CV-2941, 2014 WL 1244778, at *5 (S.D.N.Y. Mar. 26, 2014) (internal quotation marks omitted) (citing, inter alia, Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)).

         “On a motion for summary judgment, a fact is material if it might affect the outcome of the suit under the governing law.” Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544 (2d Cir. 2014) (internal quotation marks omitted). At summary judgment, “[t]he role of the court is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried.” Brod, 653 F.3d at 164 (internal quotation marks omitted); see also In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., MDL No. 1358, No. M21-88, 2014 WL 840955, at *2 (S.D.N.Y. Mar. 3, 2014) (same). Thus, a court's goal should be “to isolate and dispose of factually unsupported claims.” Geneva Pharm. Tech. Corp. v. Barr Labs. Inc., 386 F.3d 485, 495 (2d Cir. 2004) (internal quotation marks omitted) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

         B. Analysis

         The FTCA provides in relevant part that

[a]n action shall not be instituted upon a claim against the United States for money damages for . . . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail. The failure of an agency to make final disposition of a claim within six months after it is filed shall, at the option of the claimant any time thereafter, be deemed a final denial of the claim for purposes of this section.

28 U.S.C. § 2675(a). A claim under the FTCA “shall be forever barred unless it is presented in writing to the appropriate Federal agency within two years after such claim accrues.” Id. § 2401(b). “Typically, FTCA medical malpractice claims accrue at the time of injury, ” A.Q.C. ex rel. Castillo v. United States, 656 F.3d 135, 139 (2d Cir. 2011) (internal quotation marks omitted), yet, “where a plaintiff would reasonably have had difficulty discerning the fact or cause of injury at the time it was inflicted, the so-called ‘diligence-discovery rule of accrual' applies, ” id. at 139-40 (some internal quotation marks omitted). This rule dictates that the accrual date is when, through reasonable diligence, the plaintiff ...

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