Cepeda v. United States
| Decision Date | 09 February 2021 |
| Docket Number | 19 Civ. 5967 (JPC) |
| Parties | YESENIA CEPEDA, Plaintiff, v. UNITED STATES, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Yesenia Cepeda brings this action against the United States under the Federal Tort Claims Act ("FTCA"), alleging medical malpractice in connection with a surgery performed at the James J. Peters VA Medical Center in Bronx, New York ("Bronx VA") in May 2017. Before the Court is Plaintiff's motion for leave to file a Third Amended Complaint, which would add a new cause of action for lack of informed consent. Because that proposed amendment would be futile, the Court denies Plaintiff's motion.
The following background is taken from Plaintiff's allegations in the Second Amended Complaint, filed on January 24, 2020, which is the operative complaint at this point. Second Amended Complaint, Dkt. 56 ("SAC"). These factual allegations are assumed only for purposes of the instant motion.
Plaintiff, a former Army Reservist, suffered an injury to her spine after a car accident in 2009. Id. ¶¶ 13, 22-23. With her back pain, neck pain, and headaches worsening, Plaintiff received treatment through the health care system of the Department of Veterans Affairs ("VA"). Id. ¶¶ 28-29. Doctors at the VA assessed that Plaintiff's pain was exacerbated by her large breast size and, after two years of unsuccessful treatment, her primary care physician at the Bronx VA recommended breast reduction surgery. Id. ¶¶ 30-31.
Plaintiff discussed the procedure with two surgeons affiliated with the Bronx VA, Dr. Michael Ingargiola and Dr. Jay Meisner, who ultimately performed the surgery. Id. ¶¶ 32, 40. Leading to the surgery, Plaintiff discussed with Dr. Meisner and a nurse that she felt unprepared for the operation, and she further expressed concern to Dr. Meisner about post-operation scarring. Id. ¶ 35. Dr. Meisner informed Plaintiff that any scarring would be minimal, entailing circular scars around her nipples and scars from her nipples to the bottom of her breasts, but no scarring in the center of her chest, and he assured her that his team would treat any scars that resulted from the operation. Id. ¶¶ 35, 39. Dr. Meisner further told Plaintiff to expect a full recovery within six months. Id. ¶ 39.
Plaintiff underwent bilateral breast reduction surgery at the Bronx VA on May 9, 2017. Id. ¶ 40. Plaintiff alleges numerous complications and adverse symptoms from her operation, some of which continued as of the filing of the Second Amended Complaint. Id. ¶¶ 63-67. Immediately following the surgery, Plaintiff began to experience excruciating pain, bleeding, and other troubling symptoms. Id. ¶ 42. Three days after the operation, when Dr. Ingargiola and Dr. Meisner were removing the drains that were inserted during surgery, Dr. Ingargiola pulled out a drain that was still attached to stitches, causing Plaintiff to bleed profusely. Id. ¶ 44. Plaintiff continued to experience severe pain and other symptoms after the drains were removed, which Dr. Meisner assured her were common. Id. ¶ 46. On a follow-up visit, however, a nurse told Plaintiff that her pain was caused by the improper removal of the stitches that held one of the drains in place. Id. ¶ 47.
Plaintiff also expressed concern to Dr. Ingargiola and Dr. Meisner that her breast size had been reduced too much and that one breast appeared at least three inches higher than the other. Id. ¶¶ 48-50. Both doctors refused to answer Plaintiff's question as to whether that disparity was due to a different physician operating on each breast. Id. ¶ 50. Despite Dr. Meisner's assurance to Plaintiff that her breasts would return to normal symmetry after the swelling subsided, her breasts remained asymmetrical months later. Id. When the remaining stitches were removed six weeks after the operation, Plaintiff discovered disfiguring scars across her right breast and center of the cleavage, scars which remained as of the date of the Second Amended Complaint and continued to cause Plaintiff extreme pain. Id. ¶¶ 53-54.
Before initiating the instant action in federal court, Plaintiff submitted to the VA an administrative claim, called a Standard Form 95 ("SF-95"), setting forth her claim for injuries resulting from the May 9, 2017 operation. Declaration of Lucas Issacharoff, Exh. 1, Dkt. 105-1 ("SF-95"). In the SF-95, Plaintiff described the basis of her claim as "severe" and "excessive" scarring and alleged that the surgery removed too much breast tissue and reduced her breast size more than she desired. Id. She added that as a result of the surgery, her "breasts are completely grossly disfigured" and her "nipples are not symmetrical." Id. Plaintiff further asserted that she was experiencing a "reoccurring painful ache all over [her] breast, chest, face and back since the surgery." Id. She contended that these complications have caused her depression, stress, shame, and anxiety, and will require corrective surgery. Id. Notably, for purposes of the instant motion, Plaintiff did not describe any pre-surgery interactions with her medical providers that would have indicated that her claim was premised on a theory of lack of informed consent.
The VA confirmed receipt of Plaintiff's administrative claim and advised her that an investigator with the agency would be in contact. SAC ¶¶ 71-72. After not hearing from the investigator for several months, Plaintiff started to proactively reach out, including by e-mailing photographs of her wounds to the investigator. Id. ¶¶ 73-74; Memorandum of Law in Support of Motion for Leave to File Third Amended Complaint ("Motion to Amend"), Dkt. 102-1, at 5.1 On December 26, 2018, Plaintiff received a letter from the VA informing her that her administrative claim was denied. Id. ¶ 77.
Plaintiff then commenced this action by filing a pro se complaint on June 25, 2019 against the United States. Dkt. 1. On October 9, 2019, pro bono counsel entered an appearance for Plaintiff. Dkts. 14, 16. With the assistance of counsel, Plaintiff filed her First Amended Complaint on October 31, 2019, which added Dr. Ingargiola and Dr. Meisner as individual defendants. Dkt. 24. The Court entered a Case Management Plan on November 4, 2019, which, among other things, set a deadline of December 5, 2019 for amending any pleadings absent leave of Court. Dkt. 32 ¶ 6.2 Two weeks later, the Government certified, pursuant to 28 U.S.C. § 2679(d), that Dr. Meisner and Dr. Ingargiola were deemed employees of the VA for purposes of the FTCA and were acting within the scope of that employment for purposes of the claims asserted by Plaintiff. Dkt. 35. On January 24, 2020, Plaintiff filed the Second Amended Complaint, which removed Dr. Meisner as a defendant. Dkt. 56. On July 21, 2020, the Court granted the motion to dismiss as to Dr. Ingargiola. Dkt. 76. The case was reassigned to the undersigned on September 29, 2020.
In the Second Amended Complaint, Plaintiff pleads a cause of action for medical malpractice against the United States, on the grounds that Dr. Meisner and Dr. Ingargiola failed to meet the standard of care in connection with her May 9, 2017 breast reduction surgery. SAC ¶¶ 81-92. The Second Amended Complaint alleges that this deviation from the standard of care resulted in, among other things, "(1) disfiguring scarring; (2) asymmetrical breasts; (3) asymmetrical nipple placement; (4) incisions that would not heal and release odor and pus; and (5) ongoing, persistent pain that limits the range of motion in both arms." Id. ¶ 88. Plaintiff further identifies numerous ongoing challenges in her life from these injuries, including being unable to perform certain activities without pain and preventing her from becoming a police officer and continuing to serve as an Army Reservist. Id. ¶¶ 63-67. The Second Amended Complaint does not plead a cause of action for lack of informed consent, nor did any of her prior two complaints.
On December 12, 2020, Plaintiff moved for leave to file a Third Amended Complaint to add a cause of action for lack of informed consent. Dkt. 102. Accompanying that motion is a proposed Third Amended Complaint. Ranks Affidavit, Exh. 1. The proposed lack of informed consent claim would concern information provided to Plaintiff prior to surgery as to who would be performing the procedure and the risk of post-operation scarring.3 Id. ¶¶ 105-117. More specifically, the proposed Third Amended Complaint alleges that the United States, through Dr. Meisner, Dr. Ingargiola, and possibly others:
failed to provide sufficient disclosure in connection with Plaintiff Yesenia Cepeda's breast reduction surgery, by failing to, inter alia, (1) inform Plaintiff Yesenia Cepeda that one or more surgical residents, not the attending physician Jay Meisner, M.D., would be the primary surgeon(s) during her procedure, (2) inform Plaintiff Yesenia Cepeda that surgical residents would be intimately involved in Plaintiff Yesenia Cepeda's surgery; (4) [sic] inform Plaintiff Yesenia Cepeda that a previously undisclosed resident, a resident who had just started her rotation at the Bronx VA Hospital (Nikki Burish, M.D.), would be the primary surgeon for Plaintiff Yesenia Cepeda's procedure; (4) inform Plaintiff Yesenia Cepeda of the real risk of scarring during a breast reduction surgery in light of the fact that even optimal outcomes usually result in some level of minimal scarring, especially considering Yesenia Cepeda's circumstances and her concerns about the presence of even minimal scarring, such as the minimal scarring she experienced during a prior surgery; and (5) address Plaintiff Yesenia Cepeda's concerns about scarring prior to the procedure. . . .
Id. at ¶ 113. The Government filed its opposition to Plaintiff's motion on January 7, 2021, Dkts. 104 ("Opposition"), 105, and Plaintiff filed her reply brief on ...
To continue reading
Request your trial