United States District Court, S.D. New York
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,
UNITED STATES OF AMERICA, JACQUILINE YVONNE TODD, WICO CHU, ORANGE REGIONAL MEDICAL CENTER, Defendants.
A. Rubin, Esq. Rubin Law, PLLC New York, NY Counsel for
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
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.).) Before the Court is the Government's
Motion for Summary Judgment (the “Motion”).
(See Dkt. No. 35.) For the reasons to follow, the
Government's Motion is granted.
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.) M.H. was born shortly after Ms. Hernandez
arrived at ORMC. (See Gov't's 56.1 ¶
14; Pls.' 56.1 ¶ 14.) “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.) 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.)
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.)
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
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).)
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
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
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).)
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
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.)
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.)
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.)
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.)
Standard of Review
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)).
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)).
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