715 F.Supp.2d 452 (S.D.N.Y. 2010), 09 Civ. 9113(NRB), A.Q.C. ex rel. Castillo v. United States

Docket Nº:09 Civ. 9113(NRB).
Citation:715 F.Supp.2d 452
Opinion Judge:NAOMI REICE BUCHWALD, District Judge.
Party Name:A.Q.C., an infant by her mother and natural guardian, Paquita CASTILLO, Plaintiff, v. UNITED STATES and Bronx-Lebanon Hospital Center, Defendants.
Attorney:James P. Fitzgerald, John M. Daly, Fitzgerald & Fitzgerald, P.C., Yonkers, NY, for Plaintiff. Amy A. Barcelo, United States Attorney Office, New York, NY, for United States of America. Laura M. Papa, Cheryl M. Wendt, Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY, for Bronx-Lebanon Hospita...
Case Date:May 14, 2010
Court:United States District Courts, 2nd Circuit, Southern District of New York

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715 F.Supp.2d 452 (S.D.N.Y. 2010)

A.Q.C., an infant by her mother and natural guardian, Paquita CASTILLO, Plaintiff,


UNITED STATES and Bronx-Lebanon Hospital Center, Defendants.

No. 09 Civ. 9113(NRB).

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

May 14, 2010

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[Copyrighted Material Omitted]

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James P. Fitzgerald, John M. Daly, Fitzgerald & Fitzgerald, P.C., Yonkers, NY, for Plaintiff.

Amy A. Barcelo, United States Attorney Office, New York, NY, for United States of America.

Laura M. Papa, Cheryl M. Wendt, Shaub, Ahmuty, Citrin & Spratt, LLP, Lake Success, NY, for Bronx-Lebanon Hospital Center.



Before the Court is defendant United States' Motion to Dismiss the Amended Complaint for Lack of Subject Matter Jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) (" Rule 12(b)(1)" ). For the following reasons, the motion is granted.


The infant plaintiff was born to her mother, Paquita Castillo, on February 1, 2005, at the Bronx-Lebanon Hospital Center (" Bronx-Lebanon" ). She was delivered by, among others, Dr. Wilfrido Arturo Castillo, who had been the plaintiff's mother's regular obstetrician at a prenatal clinic run by Urban Health Plan (" UHP" )

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and who had delivery privileges at Bronx-Lebanon. (Pl. Mem., Castillo Decl. ¶ ¶ 5, 11.)

I. The Allegations of the Amended Complaint

The plaintiff's amended complaint asserts two causes of action: (1) a claim that she was injured due to the negligence and malpractice of employees at the hospital for, inter alia, failing to perform a Caesarian section; and (2) a claim for lack of informed consent, based on the administration of oxytocin and pitocin and the performance of a vaginal delivery without the option of a Caesarian section. (Amended Complaint ¶ ¶ 13, 17.)

According to her mother, the plaintiff remained in the hospital for six days following the delivery. (Pl. Mem., Castillo Decl. ¶ 3.) The plaintiff allegedly suffered " severe and permanent" injuries as a result of the defendants' actions, including " neurological and physical injuries." (Amended Complaint ¶ ¶ 15, 22.) 2

II. The Plaintiff's Retention of Counsel

In December 2005, the plaintiff's mother met with her daughter's " early intervention counselor to discuss [the infant's] therapy schedule and progress." (Pl. Mem., Castillo Decl. ¶ 15.) After reviewing records from the plaintiff's birth, the counselor told the plaintiff's mother that she " should consider looking into whether or not there was any medical malpractice relating to [her] daughter's birth." ( Id. ) This led the plaintiff's mother " to wonder whether [her] daughter's injuries might have been caused by medical malpractice, and raised a doubt in [her] mind about whether [her] daughter's injuries might have been prevented." ( Id. ¶ 16.) Prior to this, " no one had ever suggested to [her] or told [her] that [her] daughter's problems might be the result of medical malpractice." ( Id. ¶ 17.)

The plaintiff's mother first met with someone at her current attorney's office in late February 2006. ( Id. ¶ 19.) A retainer agreement was signed on April 27, 2006. ( Id. ¶ 21.)

III. Investigation by Plaintiff's Counsel

On May 16, 2006, plaintiff's counsel requested medical records from Bronx-Lebanon and UHP. (Pl. Mem., Daly Decl. ¶ 43.) Prenatal records were received from UHP on May 24, 2006, and labor and delivery records were received from Bronx-Lebanon on July 27, 2006. ( Id. ) From then until February 2008, plaintiff's counsel claims that it periodically reviewed the relevant records to determine whether to move forward with the case. ( Id. ¶ ¶ 31-34, 43.)

The final review occurred on February 28, 2008. In anticipation of that meeting, an attorney determined that it would be prudent at that point to assess " which medical providers [should] be named as defendants, and why" and to give consideration " to the preferred venue." (Chase Decl., filed May 3, 2010, ¶ 6.) On February 25, 2008, the attorney researched whether UHP was a federally-funded clinic. ( Id. ¶ ¶ 7, 8.) She did this " because of a conversation [she] had shortly before that date with an office colleague concerning another, unrelated case in which a doctor" working for or affiliated with " a private, nonprofit agency" had been " deemed" a federal employee. ( Id. ¶ 7.) She conducted an internet search that led her to a hotline number, 866-382-2435 (866-FTCA-HELP),

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which informed her that UHP had been deemed a federal health clinic. ( Id. ¶ 8; Pl. Mem., Daly Decl. ¶ 37.)

Under Section 330 of the Public Health Service Act, the federal government provides support for community health centers in medically underserved communities. 42 U.S.C. § 254b. As part of this support, Congress extended medical malpractice coverage to these entities under the Federal Tort Claims Act (" FTCA" ) through enactment of the Federally Supported Health Centers Assistance Act of 1992 and 1995, which allows the United States to " deem" health centers receiving federal funds under Section 330 and their employees to be " employees" of the federal government and therefore covered for medical malpractice purposes by the FTCA. See 42 U.S.C. § 233(g)-(n).

UHP had been deemed a federal clinic since January 1, 2005, and Dr. Castillo was an employee of UHP at all times relevant to the plaintiff's claims. (United States Mem., Hicks Decl. ¶ ¶ 9, 10.) Thus, any claim for malpractice against Dr. Castillo must be brought pursuant to the FTCA. See 42 U.S.C. § 233(a).

Plaintiff's counsel contends that the FTCA hotline was not called earlier " because it was not apparent ... that [UHP] was a federally funded clinic covered by the [FTCA] or that Dr. Castillo was a federal employee." (Chase Decl. ¶ 10.) Plaintiff's counsel argues this was the case because Bronx-Lebanon is a private hospital and the address listed by Dr. Castillo on the plaintiff's birth certificate " is a building near the hospital that houses hospital-affiliated specialist groups." ( Id. ¶ 10.)

IV. The Plaintiff's Administrative Claim

On March 31, 2008, plaintiff's counsel sent an administrative claim to the United States Department of Health and Human Services (" HHS" ). (Pl. Mem., Daly Decl. ¶ 43.) The claim was received by HHS on April 7, 2008. (United States Mem., Hicks Decl. ¶ 3 & Ex. A.) The claim alleged that UHP and Dr. Castillo " committed medical malpractice and negligence," but it did not contain any allegations concerning a lack of informed consent. (United States Mem., Hicks Decl. Ex. A at 1.) 3

On February 26, 2009, HHS denied the administrative claim on the grounds that it was untimely and that the evidence failed to establish negligence or wrongful conduct on the part of a federal employee. (United States Mem., Hicks Decl. Ex. B at 1.)

V. Procedural History of the Instant Case

On February 9, 2009, the plaintiff commenced an action in the Supreme Court of the State of New York, Bronx County. The complaint asserted claims for personal injuries and lack of informed consent against Dr. Castillo and Bronx-Lebanon.

On October 22, 2009, pursuant to 28 U.S.C. § 2679(d), the United States Attorney

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for the Southern District of New York certified that Dr. Castillo was a federal employee acting within the scope of his employment at the time of the incidents alleged in the complaint, thereby deeming the action as one brought against the United States. Dr. Castillo removed the complaint on that basis to this Court on November 2, 2009. The plaintiff did not contest that the action was removable, and on December 21, 2009, the plaintiff filed an amended complaint substituting the United States in place of Dr. Castillo and maintaining the claims against Bronx-Lebanon.


I. Applicable Legal Standard

A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). To defeat a motion to dismiss under Rule 12(b)(1), a plaintiff must affirmatively prove the existence of subject matter jurisdiction by a preponderance of the evidence. Id.

II. The FTCA's Statute of Limitations

The FTCA " constitutes a limited waiver by the United States of its sovereign immunity." Millares Guiraldes de Tineo v. United States, 137 F.3d 715, 719 (2d Cir.1998). In order to bring a claim under the FTCA, a plaintiff must " comply with several strictly construed prerequisites to suit." Glover v. United States, 111 F.Supp.2d 190, 192 (E.D.N.Y.2000).

Before instituting " a claim against the United States for money damages for injury or loss of property or personal injury ... caused by the negligent or wrongful act or omission of any employee of the Government," a claimant must " have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing." 28 U.S.C. § 2675(a). The failure of an agency...

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