Estiverne v. Esernio–Jenssen

833 F.Supp.2d 356

Mario ESTIVERNE and Nativida Antoine, individually and on behalf of their infant children, Andrew Estiverne, Dyan Estiverne, and Mario Estiverne, Jr., Plaintiffs,

v.Debra ESERNIO–JENSSEN, individually and as physician, Long Island Jewish Medical Center, North Shore–Long Island Jewish Health Systems, Inc., and John Johnson, individually and as Commissioner of the New York State Office of Children and Family Services, Defendants.

No. 06 CV 6617(NG)(RLM).

United States District Court, E.D. New York.

Dec. 23, 2011.

Carolyn A. Kubitschek, Christoper S. Weddle, Jill Marie Zuccardy, Lansner & Kubitschek, New York, NY, for Plaintiffs.

Jonathan B. Bruno, Milli D. Shah, Kaufman, Borgeest & Ryan LLP, Robert L. Kraft, State of New York, Office of the Attorney General, New York, NY, for Defendants.

OPINION AND ORDER

GERSHON, District Judge:

Plaintiffs Mario Estiverne and Nativida Antoine (the “Adult Plaintiffs”), individually and on behalf of their infant children, Andrew Estiverne (“A.E.”), Dyan Estiverne, and Mario Estiverne, Jr. (collectively, the “Infant Plaintiffs”), bring this action, under 42 U.S.C. § 1983, alleging that defendant Debra Esernio–Jenssen, M.D., and her employers, defendants Long Island Jewish Medical Center (“LIJ”), and its parent corporation, North Shore—Long Island Jewish Health Systems, Inc. (“Hospital Defendants”), violated Adult Plaintiffs' Fourteenth Amendment rights, as well as Infant Plaintiffs' Fourth and Fourteenth Amendment rights, by improperly detaining and testing A.E., as well as working with the State to petition for the removal of Infant Plaintiffs from Adult Plaintiffs' custody. Plaintiffs also bring, under New York state common law, claims for false imprisonment, malicious prosecution, medical malpractice, and gross negligence. Defendants now move, under Rule 56 of the Federal Rules of Civil Procedure, for summary judgment on all claims. For the reasons set forth below, defendants' motion is granted in part and denied in part.

FACTS

Unless otherwise noted, the following facts are undisputed.

On November 27, 2004, plaintiff Antoine brought her son, A.E., then nine months old, to the emergency room at Schneider Children's Hospital (“Schneider”), which is operated by LIJ. Antoine reported to the doctor at Schneider that A.E. had been favoring his right wrist, which was slightly swollen. Antoine also reported that A.E. had been running a fever over the prior week, and had recently recovered from a viral infection. See A.E. Medical Records, Defs.' Ex. E, at 7–8. Although neither Antoine nor Estiverne could provide an explanation for their son's injuries, which doctors estimated to be 7–10 days old, Antoine did report that A.E. had been learning to stand, would fall on occasion, and that he was at times under the care of his babysitter. Id. at 8. After an x-ray, laboratory tests, and a physical exam, the Emergency Room Attending doctor diagnosed A.E. with a radius and ulna buckle fracture, with periosteal elevation. Id. at 10. The E.R. doctor recommended that the hospital rule out osteomyelitis,¹ and found that there was a “low suspicion of abuse.” Id. at 8, 27. At least three additional physicians at Schneider, including an orthopedist and a Pediatric Resident who were consulted, recommended an MRI to rule out osteomyelitis. ² The orthopedist, like the E.R. doctor, found a “mod/low probability [of] abuse/neglect.” Id. at 27, 32. By 9:15 p.m. on November 27, A.E.'s wrist was in a splint, and the immediate symptoms of his fracture had been treated. An MRI was scheduled for the morning of November 29.

After A.E.'s initial treatment, he was admitted to the hospital for further testing. The parties strongly dispute the underlying purpose for A.E.'s admission. Plaintiffs have presented evidence that A.E. was admitted for purposes of investigating abuse, including notes of the Pediatric Resident present on November 27, which stated, “Dr. Nerwin contacted to discuss possible abuse. He suggested skeletal survey and optho consult ... Will consider skeletal survey for Monday morning.” A.E. Medical Records, Defs.' Ex. E, at 27. Plaintiffs also submitted an Intake/Admission Form for a follow up visit A.E. had at Schneider on December 15, 2004. On the form, on the line titled “Prior hospitalizations or surgery,” the doctor wrote that A.E. had been previously admitted to Schneider to “R/O [rule out] child abuse.” See A.E. Intake/Admission Form, Pls.' Ex. 16, at 2–3. Also, on the same form, under “History of Present Illness,” the doctor wrote “Admitted to LIJ 11/27/04 for R/O abuse.” Id.

In contrast, defendants assert that A.E. was admitted for purely medical reasons. They point to the testimony of Dr. Dan Barlev, the Attending Radiologist on A.E.'s case, who testified that he suggested a skeletal survey not to rule out abuse, but rather, because, when he encounters a fracture without an appropriate clinical history, “it's possible that there might be an additional fracture or fractures elsewhere” that would need to be treated. Barlov Dep. Tr., Defs.' Ex. F, at 29:1–15. They also present, among other evidence, A.E.'s discharge summary, dated December 1, 2004, to establish that A.E. was not medically cleared until that date.

Plaintiffs argue that there is a factual issue as to whether AE.'s initial admission to the hospital was for medical reasons, asserting that, because his arm was put in a splint in the E.R., admission was not medically necessary and occurred only for the hospital to investigate abuse.

However, the record evidence—including evidence on which plaintiffs themselves rely—is to the contrary and establishes at least the mixed purpose of admission. An MRI, which plaintiffs admit was a medically necessary test, was ordered to rule out osteomyelitis. Indeed, plaintiffs repeatedly assert that the cancellation of the MRI, discussed further below, shows that the hospital was not interested in a medical explanation, but rather, was interested only in investigating abuse. Because plaintiffs agree that the MRI was scheduled for medical purposes, and because plaintiffs have produced nothing to contradict the evidence that A.E.'s admission was at least partially in order to conduct the MRI, the undisputed documentary evidence shows that, at least until the morning of November 29 (when the MRI was cancelled), A.E.'s admission to Schneider had at least a mixed purpose.

The only testing performed on A.E. between November 27, the date of his admission, and November 29, was an ophthalmology exam, which tested for various forms of eye trauma. Under “Reason for Consultation,” the ophthalmologist, after describing A.E.'s injury, wrote “R/O child abuse/shaken baby.” A.E. Medical Records, Defs.' Ex. E, at 47. The testing showed no signs of eye trauma. Id. Defendants assert that Adult Plaintiffs consented to this test as well as the tests that would follow. Adult Plaintiffs do not dispute consent for medical purposes, but there is no evidence that they consented to admission and testing for purposes of an abuse investigation, if that was the purpose of the testing. Indeed, the consent form that defendants point to expressly states that plaintiff Antoine was consenting to treatment necessary for A.E.'s “care.”

On November 29, defendant Jenssen, head of Schneider's Child Protective Team, was notified of the case. Also on November 29, the MRI, which had been scheduled to rule out osteomyelitis, was cancelled.³ Instead of the MRI, Jenssen ordered several other tests, including the previously recommended skeletal survey, a head CT, which required sedation, a variety of blood tests, and an additional x-ray. See Jenssen Consultation Form, Defs.' Ex. E, at 48–50. The tests revealed no signs of additional injury or abuse. Defendants do not dispute that, other than the fracture itself, its unexplained nature, and the possibility that it was 7–10 days old, there was no additional injury or indication of abuse. Indeed, Schneider's Pediatric Resident, on November 28, observed that “Parents do not exhibit signs of poor bonding or parenting @ this time.” A.E. Medical Records, Defs.' Ex. E, at 28.

On November 29, Jenssen filled out a Form 2221A “Report of Suspected Child Abuse or Maltreatment.” This report was filed with the New York State Office of Children and Family Services.⁴ Once such a report is filed, the Administration for Children's Services (“ACS”), a child protective service operated by the City of New York and authorized to investigate complaints of child abuse and neglect, was required to investigate the report.⁵ ACS began its investigation the same day.

In determining whether to file a petition for removal of Infant Plaintiffs, ACS consulted defendant Jenssen regarding A.E.'s injuries.⁶ Despite the fact that other doctors disagreed, see ACS Interview Report, Defs.' Ex. 5, at 3; Jenssen Dep. Tr., at 105, Dr. Jenssen advised ACS that A.E. “did not have enough body mass to fracture his own bone from a simple household fall” and that it was “impossible for him to injure himself.” See Jenssen Consultation Form, Defs.' Ex. E, at 50; ACS Investigation Progress Notes, Pls.' Ex. 7, at 118. Plaintiffs also present evidence, including ACS caseworker testimony and case notes, that Jenssen “concluded that [A.E.'s] fracture was consistent with a ‘grab and shake.’ ” See Goodwine Dep. Tr., Pls.' Ex. 4, at 17; ACS Investigation Progress Notes, Pls.' Ex. 7, at 118. Jenssen denies that she ever used the term “grab and shake.” ACS found no other evidence, either in Adult Plaintiffs' home or at the children's school, that was suggestive of abuse.

On November 30, ACS put a “social hold” ⁷ on A.E., and, on December 1, 2004, it initiated child protective proceedings in New York Family Court. That same day, the court ordered that (all three) Infant Plaintiffs be temporarily removed from Adult Plaintiffs' custody and placed in the custody of ACS. Both the removal petition filed by ACS and the...