McLean v. United States

• Decision Date: 31 March 2022
• Docket Number: 20-cv-8189 (ALC)
• Parties: JONATHAN MCLEAN, Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. District Court — Southern District of New York

JONATHAN MCLEAN, Plaintiff,
v.
UNITED STATES, Defendant.

No. 20-cv-8189 (ALC)

United States District Court, S.D. New York

March 31, 2022

OPINION AND ORDER

ANDREW L. CARTER, JR. UNITED STATES DISTRICT JUDGE.

Plaintiff Jonathan McLean brings suit against Defendant the United States of America, asserting claims for “negligence, ” “vicarious liability, ” and lack of “informed consent, ” arising under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), and 2671-2680. Defendant moves to partially dismiss Plaintiff's complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendant's motion to dismiss is GRANTED.

BACKGROUND

When determining whether to dismiss a case, the court accepts as true all well-pleaded factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). Furthermore, “[a] complaint is deemed to include any written instrument attached to it as an exhibit, ” Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004); Fed.R.Civ.P. 10(c), and the Court may consider “documents incorporated into the complaint by reference and matters of which a court may take judicial notice, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). The Court may review documents outside the pleadings that are relevant to its determination of subject matter jurisdiction and

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documents outside the pleadings that are integral to the complaint. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000); L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 422 (2d Cir. 2011). Thus, the following facts, alleged in the Complaint, ECF No. 1, and Plaintiff's administrative claim records, ECF No. 14-1 (“SF-95”), are assumed to be true for the purposes of this motion.

On January 9, 2019, Plaintiff presented with complaints of elevated blood sugar and polyurea to the emergency room at the federally-funded Bronx-Lebanon hospital. Compl. ¶ 23. He had a history of rheumatoid arthritis and diabetes. Id. After examination, he was admitted to the hospital for additional treatment and observation, and he was diagnosed with an elevated white blood cell count, a urinary tract infection, and/or bacteremia. Id. ¶¶ 24, 28. The urinary tract infection tested positive for E. Coli - ESBL. Id. ¶ 29. The Complaint asserts that Plaintiff was prescribed Ciprofloxacin even though E. Coli - ESBL is known in the medical community to be resistant to Ciprofloxacin, a fact which was also confirmed by Plaintiff's blood susceptibility studies conducted at Bronx-Lebanon. Id. ¶¶ 30-33.

Plaintiff was discharged from Bronx-Lebanon with diagnoses of hypertension, rheumatoid arthritis, diabetes mellitus, urinary tract infection, and acute kidney injury. Id. ¶ 34. Plaintiff was instructed to follow up at an affiliated medical clinic. Id. After attending the follow-up appointment on January 14, 2019, Plaintiff was referred to an additional appointment for treatment of his rheumatoid arthritis and an optometry consultation. Id. ¶ 36. On January 28, 2019, at the rheumatoid arthritis referral appointment, Plaintiff was diagnosed with rheumatoid arthritis, right elbow bursitis, and left knee effusion; however, the physician conducted no follow-up on the urinary tract infection. Id. ¶ 38.

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On January 30, 2019, Plaintiff was emergently transported to Lincoln Medical and Mental Health Hospital in critical condition. Id. ¶ 39. Between January 30, 2019, and March 7, 2019, Plaintiff was treated at the hospital for altered mental status, hypotension, shock, hypothermia, hyperkalemia, multiple cardiac arrests, acidosis, anoxic brain damage, clostridioides difficile, respiratory failure, anemia and gangrene. Id. ¶ 40. On March 9, 2019, Plaintiff was re-admitted to Lincoln with continued signs of infection. Id. ¶ 43. During this admission, Plaintiff underwent a left lower extremity amputation, right lower extremity amputation, bilateral thumb amputations, right index finger amputation, and left upper eschar excision and debridement. Id. ¶ 44. Plaintiff alleges that these complications were caused by Bronx-Lebanon's failure to properly treat his urinary tract infection. Id. ¶¶ 41, 44.

PROCEDURAL HISTORY

On March 6, 2020, Plaintiff filed an SF-95 Claim for Damage, Injury, or Death with the U.S. Department of Health and Human Services (“HHS”), claiming $15 million in damages. SF-95. The SF-19 provided the following description as Plaintiff's “basis of [his] claim.”

Claim for hospital and/or medical malpractice in the care and treatment rendered to claimant at BronxCare Health Systems various facilities, . . . by their physicians, nurses, agents and/or staff members, . . . for injuries suffered as a result of the failure to properly diagnose, treat, monitor, and/or prescribe reasonable and proper medication(s) to treat claimant's urinary tract infection caused by multi-drug resistant Escherichia coli bacteria a/k/a extended spectrum beta-lactamases Escherichia coli bacteria, as a result of which claimant suffered permanent injuries

SF-95 at 5.

Plaintiff initiated this suit on October 2, 2020. ECF No. 1. Defendant seeks to dismiss the Complaint in part pursuant to Rule 12(b)(1) and Rule 12(b)(6). Specifically, Defendant seeks dismissal of...