V.S. v. Muhammad, 07-CV-213(CBA)(JO)

V.S., individually and on behalf of her minor child, T.S., Plaintiffs, v. NADIRA MUHAMMAD et al., Defendants.

07-CV-213(CBA)(JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: September 21, 2011

NOT FOR PUBLICATION

MEMORANDUM & ORDER

AMON, Chief United States District Judge:

V.S., suing individually and on behalf of her son T.S., seeks to hold the defendants in this case liable under the U.S. Constitution and laws of New York for their actions in connection with the treatment of T.S. and the related prosecution of V.S. for child abuse.

The defendants who remain in this suit, private health care providers and a private physician (the medical defendants) as well as the City of New York (the City), have moved for summary judgment

The Court grants the medical defendants' motion for summary judgment on the constitutional claims and declines to exercise jurisdiction over the state law claims. The City's motion for summary judgment is granted in its entirety.

BACKGROUND

I. Pre Hospital

On the afternoon of August 19, 2004, from about 2:00 p.m. to 5:00 p.m., V.S. left her then nine-week old son with her mother (with whom they both lived) in Queens while she traveled to Manhattan for an appointment. (Pl. R. 56.1 ¶ 4.)

Sometime around 7:00 p.m., after she had returned from Manhattan, V.S. noticed a "red mark" on T.S.'s right thigh. (V.S. Dep. 34-35.) Although T.S. was not crying when V.S. returned to Queens, he was unusually irritable, (Id. at 35.)

When V.S. asked her mother about T.S.'s behavior, her mother, Ve.S., suggested that T.S. was "gassy." (Id. at 36.) When V.S. asked her mother about the red mark on T.S.'s thigh— which she did immediately after noticing the mark and then at least ten times thereafter—Ve.S. said that she did not know anything about it and suggested that it might be a bug bite. (Id. at 37-39.)

Within a few hours of noticing the mark, and after T.S.'s leg began to swell, V.S. decided, after speaking on the telephone with T.S.'s pediatrician, to take her son to the emergency room, (hi at 39.) V.S.'s father—who also lived with V.S., Ve.S., and T.S. in Queens—drove the group to Schneider Children's Hospital, (Id. at 39—41,) Schneider is a private hospital and is owned and operated by Long Island Jewish Medical Center, which is a defendant in this action.

During the approximately forty five minute drive to Schneider, V.S. continued to ask her mother about T.S.'s injury. Ve.S. eventually said that she may have brushed T.S. against the cabinet or counter in the kitchen while V.S. was in Manhattan. (Id. at 42.)

II. Hospital

V.S. arrived with T.S. at the emergency room at Schneider at about 11:55 p.m. (Pl. R. 56.1 ¶ 10.) Soon after arrival, at about 1:00 a.m. on August 20, 2004, T.S. was examined by an emergency room doctor, Cathy Kumar, M.D., who diagnosed a right femur fracture as well as a small bruise on T.S.'s forehead. (Med. Def. Ex. B 100098-99.) When asked during thisexamination, V.S. could not explain the injuries and Ve.S., who said she was unaware of any major trauma, stated only that she brushed T.S. against the counter earlier that day. (Id.)

After her examination of T.S. and her interviews of V.S. and Ve.S., Dr. Kumar, pursuant to her duties as a mandated reporter under New York law, filed a report of suspected child abuse with the New York State Central Registry. (Med. Def. Ex. B 100096.) In that report, Dr. Kumar noted the femur fractute and her belief that the story as to how the fracture might have occurred—the brush against the counter or cabinet—was inconsistent with the diagnosed injury, (Id.) The written report listed as "adults responsible and alleged subjects" V.S., Ve.S., V.S.'s father, and the father of T.S. (Id.)

Sometime after Dr. Kumar examined T.S., another Schneider doctor examined the child and noted a small bruise to T.S.'s forehead and swelling in his right leg. (Med. Def. Ex. B. 100100.) The examining doctor recommended several tests, including an x-ray of the right femur, a head CT scan, a skeletal survey, and an ophthalmology exam. (Id.) The doctor also recommended that T.S. be admitted ("admit / observation") to Schneider. (Id.) The doctor further recommended calling Debra Esernio-Jenssen, M.D., a child abuse specialist who was the head of the Child Protection Team at Schneider. (Id.)

Also sometime after Dr. Kumar examined T.S., Schneider doctors ordered a head CT scan and a full blood work up. (Pl. R. 56,1 ¶ 16.) The head CT scan was conducted early on the morning of August 20, 2004, at about 4:30 a.m., by Dr. Lewis, a radiologist. (Med. Def. Ex. B 100094.) Dr. Lewis's notes indicate that the CT scan showed a "left frontal questionable [unintelligible] subdural hematoma with overlying non-displaced fracture." (Id.)

A doctor at Schneider then ordered a neurology consultation, listing the reasons for the consultation as T.S.'s frontal sub-acute subdural hematoma and left frontal non-displaced skullfracture. (Med. Def. Ex. B 100097.) The neurologist diagnosed T.S. as the victim of child abuse, "(suspected) until proven otherwise." (Id.) The neurologist also recommended that a full skeletal survey and an ophthalmology examination be conducted. (Id.)

At about 7:30 a.m., a pediatric orthopedist examined T.S. and confirmed that he had a fractured right femur. (Med. Def. Ex, B 100124.). The orthopedist recommended, among other things, splint immobilization, "CPS evaluation," and Tylenol for pain, (Id.)

At about 7:50 a.m., a Dr. Wells contacted Dr. Jenssen and told her about T.S. (Med. Def. Ex. B 100172.) She said that T.S. had a right femur fracture, left frontal skull fracture, and a left subdural hematoma, (Id.)

Sometime after she was contacted, Dr. Jenssen ordered an ophthalmology examination for T.S. That exam, Which was conducted at about 11:00 a.m., identified old blood in the far periphery of T.S.'s eyes. (Med. Def. Ex. B 100177.) The doctor performing the exam, Sylvia Kodsi, M.D., noted that T.S. had retinal hemorrhages and other signs of non-accidental trauma (presumably the femur and skull fractures and the subdural hematoma) and that "all this is consistent with shaken baby syndrome." (Id.)

At about 3:00 p.m. that afternoon^ someone at Schneider made a second report to the State Central Registry, (Med. Def. Ex. B 100120.) The report stated that, since the first report, T.S. had undergone additional testing and that the testing revealed "new findings" of a non-displaced frontal fracture and "old and new retinal bleeding suggestive of shaken baby syndrome." (Id.) The; second report listed as "adults responsible and alleged subjects" V.S., Ve.S., and V.S.'s father. (Id.)

Sometime after the first report of suspected child abuse was filed, the New York Administration for Children's Services (ACS) began its investigation of T.S.'s case. On theevening of August 20, 2004 ACS caseworker Nadira Muhammad, a defendant in this case, arrived at Schneider, When she arrived, she met with Dr. Jenssen, who explained to her T.S.'s injuries, including that, according to Muhammad's testimony, T.S. had a broken femur and "may have shaken baby syndrome" and "a possible skull fracture." (Muhammad Dep. 31.)

Shortly after Muhammad's arrival, she and Dr. Jenssen and another ACS caseworker met with V.S. Dr. Jenssen did "all the talking" and explained to V.S. the injuries that T.S. had suffered. (Id. at 33.) Dr. Jenssen urged V.S. to explain what had happened to T.S. that might have caused his injuries. (Id.) V.S. explained what she had done the previous day and said that she did not know what had happened to her son. (Id. at 33-34.)

Also sometime on the evening of August 20,2004, T.S.'s grandmother, Ve.S., met with detectives from the New York City Police Department's Special Victims Unit. At that meeting, which occurred at Ve.S.'s house, Ve.S. told the detectives that she had fallen while holding T.S. sometime during the afternoon of August 19. (Pl. R. 56.1 ¶ 32; Med. Def. Ex. B 100134.) She stated that she had hit her head on the countertop or cabinet during the fall and the detectives observed that Ve.S. had a large hematoma that had spread over her eyelid. (Med. Def. Ex. B 100134.) Ve.S. showed the detectives the area in the kitchen where she had fallen and re-enacted the fall; the detectives believed that, based on the dimensions and layout of the kitchen, her story was plausible. (Id.)

In notes that she prepared upon learning of the detectives' meeting with Ve.S., Dr. Jenssen wrote that Ve.S.'s fall in the kitchen, as she described it, could explain T.S.'s fractured femur. (Id.) Her notes also state that an MRI revealed that the subdural hematoma shown on the head CT scan was, in fact, not a hemorrhage, (Id.) Those same notes state that, "in view of new information," Dr. Jenssen was ordering an ophthalmologist, Eric Shakin, M.D., to conduct asecond retinal examination; the doctor who had performed the original examination, Dr. Kodsi, was away on vacation, (Id.)

The next day, August 21, 2004, T.S. continued to receive medical attention, including from pediatric services and a neurosurgeon. (PL R. 56. ¶ 41.) Also on that date, T.S. was awaiting a consultation from ophthalmology and from a pediatric cardiologist, apparently for a heart murmur that had been diagnosed. (Id. ¶ 42.)

Dr. Shakin, the ophthalmologist, examined T.S. the next day, August 22, 2004. (Id ¶ 43.) He testified in state family court proceedings that he understood that he was being asked to examine T.S. "to look at the etiology of the hemorrhages and... to see if it was possibly consistent with shaken baby syndrome." (City Def, Ex. D, Jan. 31, 2005 Tr. 63.) Dr. Jenssen's notes indicate that Dr. Shakin identified old and new retinal bleeds, some of which were about two to three weeks old. (Def. Ex. B 100142.) These findings were "consistent with shaken baby syndrome" and "not related to birth trauma." (Id.)

Dr. Jenssen's notes also indicate that V.S.'s obstetrician-gynecologist would contact her on ...