Grunwald v. Bon Secours Charity Health Sys.
| Decision Date | 06 May 2020 |
| Docket Number | No. 18-cv-3208 (NSR),18-cv-3208 (NSR) |
| Parties | ESTHER GRUNWALD, as Mother and natural Guardian of T.G., an infant, and ESTHER GRUNWALD, INDIVIDUALLY, Plaintiffs, v. BON SECOURS CHARITY HEALTH SYSTEM MEDICAL GROUP, P.C., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiffs Esther Grunwald, as mother and natural Guardian of T.G., an infant, and Esther Grunwald, individually (collectively "Plaintiffs") commenced the instant action pursuant to the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. §§ 1346 (b), 2671 et seq., against multiple named defendants, including the United States of America ("USA"). Plaintiffs' claims sound in medical malpractice, lack of informed consent and loss of consortium. Presently before the Court is Defendant USA's motion pursuant to Federal Rules of Civil Procedure §§ 12(b)(1) ("Rule 12(b)(1)") and 12(b)(6) ("Rule 12(b)(6)") seeking dismissal of claims asserted for lack of informed consent and loss of consortium. For the following reasons, Defendant USA's motion is GRANTED.
The facts as outlined below are derived from a liberal interpretation of Plaintiff's asserted allegations or matters of which the Court may take judicial notice and are accepted as true for the purpose of this motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Nicosia v. Amazon.com, Inc. , 834 F.3d 220, 230 (2d Cir. 2016).
Plaintiff Esther Grunwald ("Grunwald") is the mother of T.G., an infant. During her pregnancy to T.G., Grunwald received medical treatment in or about December 2015 at the Refuah Health Center ("Refuah") from its employee, Dr. Pedro Mencia ("Dr. Mencia"). At the time of treatment, Refuah was a federally qualified health center eligible for coverage under the FTCA pursuant to the Federally Supported Health Centers Assistance Act. (See ECF No. 35, Stipulation So Ordered June 3, 2019). Dr. Mencia, as an employee of Refuah, provided care to Grunwald and T.G. within the scope of his employment at Refuah.
Plaintiffs allege Defendants were negligent, reckless and careless in failing to provide medical treatment in accordance with good and accepted medical standards by, inter alia, failing to properly interpret electronic fetal monitoring, failing to properly react to the fetal monitoring, failing to deliver the baby, T.G., in a timely method due to the non-reassuring electronic fetal monitoring, failing to properly monitor Grunwald and T.G., and failing to exercise reasonable care in preventing hypoxia, acidosis and hypoxic ischemic encephalopathy. Plaintiffs allege that Defendants' conduct and omissions were the proximate and/or a substantial factor in causing pain and suffering to Plaintiffs. As a result of T.G.'s injuries, Grunwald alleges she has been denied the societal and consortium services of her child. Lastly, Plaintiffs allege Defendants were negligent "in failing to obtain informed consent."
Prior to commencing the instant action, Plaintiff filed a notice of claim (Claim for Damage, Injury, or Death Form ("SF-95")) on June 28, 2017 with the U.S. Department of Health and Human Services ("HHS"). The SF-95 provides:
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The HHS denied Plaintiff's claim on or about March 29, 2018.
A claim is subject to dismissal under Rule 12(b)(1) if the court lacks of subject matter jurisdiction to adjudicate it pursuant to statute or constitutional authority. See Fed. R. Civ. P. 12(b)(1); Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). In resolving a motion to dismiss for lack of subject matter jurisdiction, a district court may refer to evidence outside the pleadings. See Kamen v. American Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). A lack of standing and a failure to exhaust administrative remedies constitute jurisdictional defects and may be addressed through a Rule 12(b)(1) motion. Johnson v. Benheim, 2001 WL 799569 at *4 (S.D.N.Y. July 13, 2001) (internal citation omitted). Plaintiff bears the burden of proving by a preponderance of the evidence that the court has subject matter jurisdiction of the claim asserted. Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994).
To survive a 12(b)(6) motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007)). Factual allegations must "nudge their claim from conceivable to plausible." Twombly, 550 U.S. at 555. A claim is plausible when the plaintiff pleads facts which allow the court to draw a reasonable inference the defendant is liable. Iqbal, 556 U.S. at 678. To assess the sufficiency of a complaint, the court is "not required to credit conclusory allegations or legal allegations couched as factual allegations." Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir. 2013). While legal conclusions may provide the "framework of the complaint . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678-79. "When there are well-pleaded factual allegations [in the complaint], a court should assume their veracity and then determine whetherthey plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679. The court must thus "take all well-plead factual allegations as true, and all reasonable inferences are drawn and viewed in a light most favorable to the plaintiff [ ]." Leeds v. Meltz, 85 F.3d 51, 53 (2d Cir. 1996). However, the presumption of truth does not extend to "legal conclusions, and threadbare recitals of the elements of the cause of action." Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009) (quoting Iqbal, 556 U.S. 662) (internal quotation marks omitted). A plaintiff must provide "more than labels and conclusions" to show he is entitled to the relief requested. Twombly, 550 U.S. at 555.
The FTCA is the exclusive remedy for claims against the United States, for money damages for non-constitutional injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the United States Government while acting within the scope of his office or employment. 28 U.S.C. § 1346(b); Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994). Suits brought pursuant to the FTCA are deemed brought directly against the federal government, not against the individual government official(s). See 28 U.S.C. § 2679(a). A claim brought under the FTCA is deemed to name the United States as defendant. See Celestine v. Mount Vernon Neighborhood Health Ctr., 403 F.3d 76, 80 (2d Cir. 2005) ().
Prior to commencing an action, the FTCA requires that a claimant file an administrative claim with the appropriate federal agency and that the claim be denied. 28 U.S.C. § 2675(a). Such requirement is jurisdictional and not subject to waiver. Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir. 1983). Failure to comply with this jurisdictional prerequisite warrants dismissal of the claim for lack of subject matter jurisdiction. 28 U.S.C. § 2675; Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994).
Plaintiffs filed a notice of claim with the HHS on June 28, 2017. Plaintiffs exhausted their administrative remedy when it was denied in March 2018. Interpreting Plaintiffs' allegations liberally, they assert a claim for medical malpractice based on the doctor's alleged departure from accepted medical standards. Notably, no claim for lack of informed consent or loss of consortium is asserted on the SF-95 form.
In New York, a negligent act or omission "that constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician constitutes malpractice." B.F. v. Reprod. Med. Assocs. of New York, LLP , 136 A.D.3d 73, 80 (1st Dep' t 2015); Scott v. Uljanov, 74 N.Y.2d 673, 674 (1989) (). The method for distinguishing between situations of "simple negligence" and "the more particularized medical malpractice standard" has been described as follows:
negligence rules are applicable in those situations where the issue relating to the exercise of due care may be 'easily discernible by a jury on common knowledge' [;] . . . [but] where the directions given or treatment received by a patient is in issue, this requires consideration of the professional skill and knowledge of the practitioner or the medical facility and the more specialized theory of medical malpractice applies.
Coursen v. New York Hosp.-Cornell Med. Ctr., 114 A.D.2d 254, 256 (1st Dep't 1986) (citations omitted).
The elements of a cause of action for negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of the duty; and (3) an injury to the plaintiff as a result of the breach of the duty. Merino v. New York City Transit Auth., 218 A.D.2d 451 (1st Dep't 1996); Ingrassia v. Lividikos, 54 A.D.3d 721, 724 (2nd Dep't 2008). In order hold a physician liable for medical...
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