Matthias v. United States

• Decision Date: 31 July 2020
• Docket Number: 18-cv-3568(KAM)(GMJ)
• Citation: 475 F.Supp.3d 125
• Parties: Janelle MATTHIAS, individually and as administratrix of the Estate of Kevon Brian Mustafa, deceased, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Eastern District of New York

475 F.Supp.3d 125

Janelle MATTHIAS, individually and as administratrix¹ of the Estate of Kevon Brian Mustafa, deceased, Plaintiff,

v.UNITED STATES of America, Defendant.

18-cv-3568(KAM)(GMJ)

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

Signed July 31, 2020

Jeffrey Alan Guzman, Marcia K. Raicus, Krentsel & Guzman, LLP, Kurt Dominic Robertson, Krentsel Guzman, New York, NY, for Plaintiff.

Sean P. Greene, United States Attorney's Office, EDNY, Brooklyn, NY, for Defendant.

MEMORANDUM AND ORDER

KIYO A. MATSUMOTO, United States District Judge:

On April 27, 2018, Janelle Matthias ("plaintiff"), individually and as administratrix of the Estate of Kevon Brian Mustafa, her deceased infant son, filed this action against the United States ("defendant" or "Government"), pursuant to the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b), 2671, et seq. , claiming that from May 11, 2015 to September 22, 2015, plaintiff was the recipient of medical treatment that she alleges failed to meet the standards of adequate medical care, and, her allegation continues, such negligence ultimately caused the death of her infant son, born and deceased on September 22, 2015. (ECF No. 1, Plaintiff's Verified Complaint filed 6/19/18 ("Compl.").) Plaintiff brings claims of negligent medical treatment and care, failure to obtain informed consent, negligent hiring and retention, and loss of services. (See Compl.) On April 25, 2019, plaintiff amended the complaint, adding another cause of action for wrongful death. (ECF No. 9, Plaintiff's Amended Complaint filed 4/26/19 ("Amended Compl.") at 14-15.)² On June 25, 2019, the United States moved to dismiss the complaint, claiming this court lacks subject matter jurisdiction due to plaintiff's failure to exhaust administrative remedies pursuant to Federal Rule of Civil Procedure 12(b)(1), and for failure to state a claim upon which relief can be granted under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 21, Gov't Memorandum in Support of Motion to Dismiss filed 9/19/19 ("Gov't Mot.").) Plaintiff opposes the Government's motions in their entirety. (ECF No. 24, Plaintiff's Memorandum in Opposition of Defendant's Motion to Dismiss filed 9/19/19 ("Pl. Mem. in Opp.").)³

For the reasons stated below, the court finds that plaintiff exhausted all administrative remedies before bringing the instant action regarding her individual negligence and medical malpractice claims. Plaintiff, however, did not satisfy the exhaustion and presentment requirement for the claims brought on behalf of the deceased infant's estate and, as such the court does not have subject matter jurisdiction over any of the deceased's estate's claims. The court further holds that the negligent hiring and retention claim falls within the discretionary function exception to the Federal Tort Claims Act, and is denied. Lastly, the court finds that plaintiff failed to state a claim upon which relief may be granted with respect to her claims of wrongful death and loss of services. Accordingly, defendant's motion to dismiss is DENIED in part and GRANTED in part.

BACKGROUND

The facts, as stated in plaintiff's amended complaint and in exhibits⁴ attached to the plaintiff's memorandum in opposition to defendant's motion to dismiss,⁵ are as follows.

On September 22, 2015, at 8:04 p.m., plaintiff gave birth to an infant son, Kevin Brian Mustafa, at Brooklyn Hospital Center. (See ECF No. 24-14, Plaintiff's Exhibit 15, Certificate of Birth – Deceased.) On the birth certificate, hospital administrator Collin Ferdinand certified and signed that the infant was born alive, but tragically passed away three hours later. Id.⁶ An autopsy was performed on the deceased infant by Patrick E. LeBlanc, M.D., on October 1, 2015, and the report was later signed by Tiangui Huang, M.D. on October 9, 2015. (Pl. Exh. 16, Autopsy Report, at 3.) The report stated that the deceased infant was born via caesarian section

"due to prolonged rupture of membrane, and a non-reassuring fetal heart tone." (Id. at 4.) The deceased infant was noted to have "poor respiratory affect," was intubated, and "PPV was initiated." (Id. ) Post-intubation, the infant's condition stabilized, and he was brought to the NICU to recuperate. (Id. ) The report stated that the infant expired approximately three hours after his birth, at 11:13 p.m. on September 22, 2015. (Id. at 3-4.) Analysis of the deceased infant's lung showed "marked hyaline membrane – a pathological finding for respiratory stress syndrome – on the background of bacterial overgrowth." (Id. ) The cause of death was noted as "respiratory distress syndrome due to immaturity" which was later denoted in parenthesis as "hyaline membrane disease." (Id. )

Plaintiff filed an action alleging medical malpractice and wrongful death in the Supreme Court of New York, Kings County under Index No. 514176/2016, against defendants Errol Byer, M.D., Frederick Stanton, M.D., Alessia Perry, M.D., Brooklyn Hospital Center, and Brooklyn Plaza Medical Center P.C., a health center federally qualified under the Department of Health and Human Services ("DHHS"). (Pl. Mem. in Opp. at 2.) Plaintiff filed the summons and verified complaint on August 10, 2016. (See Pl. Exh. 2.)

Plaintiff lodged similar allegations in her state court complaint as those at issue here; namely, that the medical treatment provided by Errol Byer, M.D., Frederick Stanton, M.D., and Alessia Perry, M.D., beginning on or about May 11, 2015 and continuing until September 22, 2015, departed from the accepted medical standards of care and caused her to suffer grave bodily injury, complications, additional surgery and treatment, mental anguish, and led to the wrongful death of her infant son. (Pl. Exh. 2 at ¶¶ 16, 28, 40, 52, 69.) She further claimed that her alleged injuries were due to the negligent hiring and retention of aforementioned physicians by the Brooklyn Hospital Center and Brooklyn Plaza Medical Center, P.C. ( Id. at ¶ 74-76.) Plaintiff also claimed that her son suffered a wrongful death as a result of her negligent medical treatment. (Id. at ¶ 80.) Lastly, plaintiff asserted her injuries were caused by the defendants’ failure to obtain her informed consent for the treatment rendered. (Id. at ¶ 82-84.)

On April 28, 2017, the United States of America removed the action to the United States District Court for the Eastern District of New York, pursuant to the FTCA, 28 U.S.C. §§ 1346, 2401, 2671 et seq. , which allows the United States of America to substitute itself as a party defendant where a federal employee was acting within the scope of employment at the time the alleged tortious acts or omissions took place. See 28 U.S.C. § 2679 (d)(1).

In a related action, this court previously held that because Brooklyn Plaza Medical Center was a federally supported medical center and deemed eligible by DHHS for coverage under 42 U.S.C. § 233(g) - (h), and defendants Errol Byer, M.D., Frederick Stanton, M.D., and Brooklyn Plaza Medical Center P.C., were acting in the course and scope of their employment as federal employees at the time of the events alleged, Pl. Exh. 4 at 4, the certification and notice of substitution of the United States in place of Errol Byer, M.D., Frederick Stanton, M.D., and Brooklyn Plaza Medical Center P.C., was proper. (See Pl. Exhs. 10-14 (ECF Nos. 24-10, 24-11, 24-15, 24-12, 24-13); Janelle Matthias, individually and as the administrator of the Estate of Kevon Brian Mustafa, deceased v. Errol Byer, M.D., Frederick Stanton, M.D., Alessia Perry, M.D., Brooklyn Hospital Center, and Brooklyn Plaza Medical Center P.C., No. 17-cv-02546, 2017 WL 4314500 (E.D.N.Y. July 27, 2017) (Irizarry, J.) (Levy, M.J.)).

In that previous action, defendant United States of America filed a motion to dismiss, alleging that this court lacked subject matter jurisdiction, which the other defendants supported with a memorandum of law in support of defendant's motion to dismiss. (Pl. Exh. 3.) The gravamen of the United States’ motion was that the plaintiff had not exhausted her administrative remedies before filing, since she had not submitted an administrative tort claim to the DHHS for her alleged injuries. (Id. at 2; Pl. Exh. 4 at 3.)

The court in 17-cv-2546 granted defendant's motion to dismiss, pursuant to a Stipulation and Order of Partial Dismissal, Modification of Caption and Remand. (Pl. Exh. 4.) Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the claims against Errol Byer, M.D., Frederick Stanton, M.D., and Brooklyn Plaza Medical Center P.C. were dismissed with prejudice, and the claims against the United States of America were dismissed without prejudice, with the remaining claims remanded to the New York State Supreme Court, Kings County. (Id. at 6.)

On August 3, 2017, plaintiff submitted a Standard SF-95 Claim Form to the US Department of Health and Human Services alleging negligence and wrongful death. (Pl. Exh. 10.) Under Item 10, titled "Personal Injury/ Wrongful Death" plaintiff wrote:

Due to the negligence and carelessness of Errol Byer, M.D., Frederick Stanton, M.D., and Alessia Perry, M.D., Janelle Matthias's son, Kevin Brian Mustafa died at birth due to an irregular heartbeat and Janelle Matthias has suffered pain, trauma and emotional distress.⁷

Plaintiff added an additional page stating the basis of her claim as:

On or about May 11, 2015, continuing to, through and including September 22, 2015, at or near the Brooklyn Plaza Medical Center P.C., the Brooklyn Hospital Center, Errol Byer, M.D., Frederick Stanton, M.D., and Alessia Perry M.D., were negligent, careless and departed from the accepted standards of medicine by failing to diagnose Janelle Matthias and treat her given her medical history, signs and symptoms, and complaints upon presentation, eventually leading to the untimely and wrongful death of her son, Kevon Brian Mustafa; in negligently proscribing medication that harmed Janelle Matthias; in failing to provide a prenatal and neonatal consultation; in failing to

...