I.M. v. United States

362 F.Supp.3d 161

I.M., an Infant by Her Mother and Natural Guardian, and Danielle Hartmann, Individually, Plaintiffs,

v.UNITED STATES of America, Orange Regional Medical Center, Raja Senguttuvan, M.D., Amanda Hines, N.P., Kirankumar Kantal Kothari, M.D., North American Partners in Anesthesia, L.L.P., and Alice Bach Bast, R.N., Defendants.

No. 16-CV-7608 (KMK)

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

Signed January 24, 2019

Jordan K. Merson, Esq., Merson Law, PLLC, New York, NY, Counsel for Plaintiffs.

John J. Barbera, Esq., Diana V. Mauro, Esq., Hyungjin S. Ryu, Esq., Ruth A. Ragan, Esq., Martin Clearwater & Bell LLP, New York, NY and White Plains, NY, Counsel for Defendants Orange Regional Medical Center and Alice Bast, R.N.

Jayne L. Brayer, Esq., Birbrower, Beldock & Tangredi, LLP, White Plains, NY, Counsel for Defendants Orange Regional Medical Center and Alice Bast, R.N.

James P. Connors, Esq., Christopher T. Rogers, Esq., Catalano Gallardo & Petropoulos, LLP, Jericho, NY, Counsel for Defendant Amanda Hines, N.P.

Eric A. Curtis, Esq., Baker Sanders LLC, Garden City, NY, Counsel for Defendant Amanda Hines, N.P.

Benjamin M. Wright, Esq., James R. Denlea, Esq., John L. Leifert, Esq., Peter N. Freiberg, Esq., Denlea & Carton LLP, White Plains, NY, Counsel for Defendant Raja Senguttuvan, M.D.

OPINION & ORDER

KENNETH M. KARAS, District Judge:

Danielle Hartmann ("Ms. Hartmann"), individually and as mother and natural guardian of I.M., an infant, and I.M., an infant by her mother and natural guardian, Ms. Hartmann (collectively, "Plaintiffs"), bring this Action against Raja Senguttuvan, M.D. ("Dr. Senguttuvan"), Amanda Hines, N.P. ("Nurse Hines") (collectively, "neonatal Defendants"), Orange Regional Medical Center ("ORMC"), Alice Bast, R.N. ("Nurse Bast"), Kirankumar Kantal Kothari, M.D. ("Dr. Kothari"), North American Partners in Anesthesia, L.L.P. ("NAPA"), and the United States of America ("United States") (collectively, "Defendants"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 1402(b), 2401(b), and 2671 – 80, and New York State law. Plaintiffs allege medical malpractice, lack of informed consent, and loss of services, as to all Defendants except the United States, and negligent hiring, supervision, and retention as to ORMC. (See Compl. (Dkt. No. 1).)¹ Before the Court are Nurse Hines's Motion for Summary Judgment (Hines's Not. of Mot. (Dkt. No. 111) ), ORMC and Nurse Bast's Motion for Summary Judgment (ORMC and Bast's Not. of Mot. (Dkt. No. 115) ), and Dr. Senguttuvan's Motion for Summary Judgment (Senguttuvan's Not. of Mot. (Dkt. No. 124) ). For the following reasons, Defendants' Motions are granted in part and denied in part.

I. Background

A. Factual Background

The following facts are taken from the Parties statements pursuant to Local Civil Rule 56.1, specifically Nurse Hines's 56.1 statement (Def. Hines's Rule 56.1 Statement ("Hines's 56.1") (Dkt. No. 114) ), ORMC and Nurse Bast's 56.1 statement (Defs. ORMC and Bast's Rule 56.1 Statement ("ORMC and Bast's 56.1") (Dkt. No. 122) ), Dr. Senguttuvan's 56.1 statement (Def. Senguttuvan's Rule 56.1 Statement ("Senguttuvan's 56.1") (Dkt. No. 127) ), Plaintiffs' response and counterstatement (Pls.' Resp. and Counterstatement to Defs.' 56.1 Statements ("Pls.' 56.1") (Dkt. No. 137) ), Nurse Hines's counterstatement (Def. Hines's Rule 56.1 Counterstatement ("Hines's 56.1 Counter") (Dkt. No. 145) ), ORMC and Nurse Bast's counterstatement (Defs. ORMC and Bast's Rule 56.1 Counterstatement ("ORMC and Bast's 56.1 Counter") (Dkt. No. 141) ), and the admissible evidence submitted by the Parties, and are recounted in the light most favorable to Plaintiffs, the non-movants. The facts as described below are not in dispute, except to the extent indicated.²

1. Labor and Delivery Care

In June 2014, Ms. Hartmann learned she was pregnant with I.M. by a positive home pregnancy test. The pregnancy was later confirmed by a physician at MCHC. Ms. Hartmann received prenatal care at MCHC with Dr. Singaravelu, Dr. Blair, and Nurse Rubino. She chose MCHC for her prenatal care as this was the closest facility that Medicaid approved. (Pls.' 56.1 ¶ 175.) Ms. Hartmann was 24 years old at the time. (Id. ¶ 6.)

At the end of February 2015, Ms. Hartmann presented to Bon Secours Hospital for a routine sonogram. Ms. Hartmann testified that Nurse Rubino told her the baby was large and Dr. Blair would have to schedule an induction at ORMC. (Id. ¶ 176.) At that time, Ms. Hartmann was told to go home and wait for a call for the induction date. Her birthing plan was to deliver at ORMC, with the assigned physician employed at MCHC on the day of her delivery. Ms. Hartmann knew that MCHC patients delivered at ORMC. (Id. )

Ms. Hartmann's estimated due date was March 1, 2015. (Pls.' 56.1 ¶ 7.) On March 5, 2015, at approximately 11:00 p.m., Ms. Hartmann's water broke while she was in her home. Her contractions were about five minutes apart. She immediately called ORMC to inform them of her expected arrival. (Id. ¶ 177.) She called her mother, who drove her to ORMC. They arrived at ORMC around 12:00 a.m. on March 6, 2015. They waited in the Emergency Room for approximately fifteen minutes before being taken upstairs to a room in Labor and Delivery. (Id. )

A nurse was present in the room when Ms. Hartmann arrived and took her vital signs. Ms. Hartmann testified that during the time period from 12:00 a.m. to 2:00 a.m., a nurse placed an intravenous line ("IV") in her arm, connected her to a fetal heart monitor, and did not palpate her stomach or physically touch her for an examination. (Id. ¶ 178.) A female physician came to her room for the first time around 2:00 a.m. and did a vaginal examination. (Id. ) Ms. Hartmann was 2.3 cm dilated and was told she would receive Pitocin if the labor was not progressing. (Id. ) The examination took approximately five minutes and a vaginal delivery was still anticipated as there were no complications and Ms. Hartmann had had a prior vaginal delivery with her son. (Id. )

Between 2:00 a.m. and 6:30 a.m., Ms. Hartmann periodically walked around and rested in bed. (Id. ¶ 179.) Around 6:30 a.m., Ms. Hartmann asked for an epidural as her contractions were worsening. (Id. ) When she received the epidural, the baby's heart rate decreased. Ms. Hartmann was given oxygen and positioned onto her left side. (Id. ) The fetal heart rate returned to normal after ten minutes. (Id. ) An injection of Pitocin was ordered by Dr. Jouve and administered approximately thirty minutes after the epidural to augment labor. (Id. ) Nurse Bast was the labor and delivery nurse assigned to Ms. Hartmann's delivery. (Id. ¶ 309.) Nurse Bast was as employee of ORMC. (Decl. of Jayne L. Brayer, Esq. ("Brayer Decl.") Ex. I., at 9–10 (Nurse Bast's Deposition Transcript ("Bast Dep.") (Dkt. No. 120) ).)

The Labor and Delivery Admission History and Physical Note at 2:32 a.m. reflects that Ms. Hartmann was having contractions every five minutes and her cervix was 2cm dilated, 60% effaced, and the fetus was at -3 station. (Pls.' 56.1 ¶ 8.) The plan was for expectant management, labs, an epidural when needed, with a vaginal delivery expected. (Id. ¶ 9.)

Dr. DiCostanzo is an obstetrician-gynecologist ("OBGYN"). (Brayer Decl. Ex. H., at 11–12 (Dr. DiCostanzo's Deposition Transcripts ("DiCostanzo Dep.") ).) In March 2015 she was employed by MCHC and had privileges at ORMC. (DiCostanzo Dep. 15.) Dr. DiCostanzo testified that there was always an OBGYN from MCHC on call for ORMC, (id. at 22), and that whenever an MCHC patient was at ORMC, someone from ORMC would contact MCHC staff to let them know, (id. at 23). Dr. DiCostanzo worked a shift at ORMC from 8:00 a.m. on March 6, 2015, to 8:00 a.m. on March 7, 2015. (Id. at 21.) A site manager at MCHC set Dr. DiCostanzo's schedule. (Id. at 21–22.) When Dr. DiCostanzo managed labor and deliveries at ORMC, she managed those cases with hospital staff and nurses from ORMC. (Id. at 25.)

Dr. DiCostanzo testified that she first examined Ms. Hartmann at 9:26 a.m. on March 6, 2015. (Id. at 181.) When Dr. DiCostanzo examined her, there was a gush of meconium³ stained fluid and, with that gush, Dr. DiCostanzo felt the cord come down. (Id. at 182–84.) After Dr. DiCostanzo diagnosed the cord prolapse, Nurse Bast summoned help by yelling "cord prolapse" so that about twelve people rushed into the room. (Id. at 185–86.) They called all the relevant departments to prepare for a stat caesarian section ("c-section"). (Id. at 186–87.) Nurse Bast turned off the Pitocin, increased fluids, repositioned Ms. Hartmann and gave her oxygen. (Aff. of Christopher Rogers, Esq. ("Rogers's Aff.") Ex. D, at 17 (Dkt. No. 111–12) (ORMC records pertaining to Ms. Hartmann ("Hartmann ORMC Rec.") ).)⁴ Dr. DiCostanzo kept her hand in Ms. Hartmann's vagina and uterus. (Id. at 185.) The cord was still pulsating. (Id. ) Dr. DiCostanzo lifted the cord above the baby's head and, since Ms. Hartmann was eight centimeters dilated, had her push twice to attempt a vaginal delivery. (Id. )

Plaintiffs correctly point out that the ORMC record pertaining to Ms. Hartmann includes a note that Dr. DiCostanzo first examined Ms. Hartmann at 9:24 a.m. and called for the stat c-section at 9:26 a.m., not that she first examined her at 9:26 a.m. (Pls.' 56.1 ¶ 180 (citing Hartmann ORMC Rec. 18).) Ms. Hartmann testified that Dr. DiCostanzo examined her for about five minutes before she felt the cord prolapse and before ordering the emergency c-section. (Rogers's Aff. Ex. F, at 123 (Ms. Hartmann's Deposition Transcript ("Hartmann Dep.") ).).

Ms. Hartmann was taken to the operating room ("OR") at 9:38 a.m. (Pls.' 56.1 ¶ 13.) She was in the OR by 9:41 a.m. (Id. ¶ 14.) The skin incision for the c-section procedure commenced at 9:52 a.m. (Id. ¶ 15.) Plaintiff I.M. was delivered at 9:54 a.m., weighing 9 pounds 7 ounces. (Id. ¶ 16.) Her gestational age was 40 weeks and five days. (Id. ¶ 7.)

Dr. Kothari is an anesthesiologist. On March...