Mendez v. US

• Decision Date: 01 March 1990
• Docket Number: No. 84 Civ. 6941 (IBC).,84 Civ. 6941 (IBC).
• Citation: 732 F. Supp. 414
• Parties: Luis MENDEZ, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Southern District of New York

732 F. Supp. 414

Luis MENDEZ, Plaintiff, v. UNITED STATES of America, Defendant.

No. 84 Civ. 6941 (IBC).

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

March 1, 1990.

Speiser & Krause, P.C., New York City (Kenneth P. Nolan, of counsel), for plaintiff.

Otto G. Obermaier, U.S. Atty., S.D.N.Y., New York City (Noel Anne Ferris, Sp. Asst. U.S. Atty., of counsel), for defendant.

OPINION

IRVING BEN COOPER, District Judge.

INTRODUCTION

Plaintiff Teresa Martinez (hereinafter "Mrs. Martinez" or "Grandmother"), guardian of minor Luis Antonio Mendez (hereinafter "Tony"), brings this action on behalf of her grandson under the Federal Tort Claims Act (hereinafter "F.T.C.A."), 28 U.S.C. §§ 1346(b), 2671 et seq. (1988) alleging that he suffered and will continue to suffer mental and physical damage as a result of medical malpractice at the time of delivery. (Feb. Tr. 39; Plaintiff's Ex. 6)¹. Defendant contends plaintiff's action is time-barred by the statute of limitations. In the alternative, defendant maintains no medical malpractice exists and any injury sustained by Tony resulted from a possible infection in his mother during her pregnancy.

On December 10, 1977 Tony was delivered by Caesarean section by physicians at Madigan Army Medical Center (hereinafter "Madigan"). Five years later on December 6, 1982 his grandmother filed an administrative claim with the Department of the Army. On November 24, 1982 Tony's father, Luis Enrique Mendez (hereinafter "Luis Sr."), a non-party to this action, filed an administrative claim as well. (Feb. Tr. 73; Plaintiff's Ex. 6) The administrative claims were denied as untimely; consequently plaintiff filed this action on September 26, 1984.

On June 5, 1985 defendant United States of America (hereinafter "United States" or the "Government") filed a motion for summary judgment on the ground that the administrative claim was not filed within the two year statute of limitations as dictated by 28 U.S.C. § 2401(b). Plaintiff moved to dismiss the Government's affirmative defense.

After a one-day trial held before us on February 6, 1986 solely on this particular issue, we rendered a decision denying the Government's motion on the ground of insufficient evidence, but granting leave to renew. We held, inter alia:

What we are endeavoring to point out is that the totality of the material before us does not furnish full details addressed to the essential second phase that Kubrick United States v. Kubrick, 444 U.S. 111, 123, 100 S.Ct. 352, 360, 62 L.Ed.2d 259 (1979) makes indispensable. At trial there will be ample opportunity to delve into this essential element. If the proof at that time (even if offered at the commencement of trial) establishes this vital factor to the degree the law makes imperative, we would have no alternative to directing a dismissal of the complaint and awarding judgment in favor of the government.

Mendez by Martinez v. United States of America, 655 F.Supp. 701, 708 (S.D.N.Y. 1987).

Subsequently, on March 23, 24, and 25, 1987 we held a trial addressed to the issue of liability. Counsel submitted post-trial papers during September 1987, wherein defendant renewed its motion to dismiss the complaint as time-barred and in the alternative, moved for dismissal based upon plaintiff's failure to establish the requisite elements of a medical malpractice claim.

In light of our earlier decision and the materials presently before us, we are compelled to re-visit the statute of limitations issue at the outset.

THE FACTS

Luis Mendez Sr. served in the armed forces for approximately five years until he was honorably discharged on March 27, 1981. (Feb. Tr. 62-63) During a tour of duty in Korea, he met Kyong Ok Ku and they married in January 1977. (Feb. Tr. 63) Shortly thereafter, Mrs. Mendez became pregnant for the first time. (Mar. Tr. 87; Plaintiff's Ex. 7, at 24) During her pregnancy, Luis Sr. was transferred to Fort Louis in Washington (date unclear) where their son Tony was born (Feb. Tr. 64-65); Kyong received prenatal care there and in New York. (Mar. Tr. 188-189, 193, 260)

Luis Sr. was 19 years of age at the time of his son's birth. (Feb. Tr. 61-62) At that time, Mr. Mendez had a ninth grade education but eventually received a high school equivalency diploma and completed some college work. (Feb. Tr. 62-63)

On December 9, 1977 at approximately 5:10 a.m. Mrs. Mendez was admitted to Madigan located in Tacoma, Washington because her membranes prematurely ruptured; that is, her "bag of water" had begun to leak amniotic fluid before the onset of contractions. (Mar. Tr. 26-27, 264; Plaintiff's Ex. 7, at 18; Defendant's Ex. A, at 69) Luis Sr. was by his wife's side at the hospital until 6:30 a.m. the following morning, at which time the doctors requested that he leave the room. (Mar. Tr. 265) Luis Sr. went to the waiting room and asked one of the doctors to wake him before she had the baby so he could be present at the birth. (Feb. Tr. 66)

After several failed attempts to deliver the child vaginally in which Pitocin (a labor inducement drug), midforceps, and a vacuum extractor were used (Plaintiff's Ex. 2, at 5; Defendant's Ex. A, at 4) the treating physicians diagnosed cephalopelvic disproportion, ("CPD") i.e., a condition in which the baby's head cannot pass through the mother's pelvis. (Mar. Tr. 81, 129; Defendant's Ex. A, at 1) Consequently, Tony was born by Caesarean section on December 10th at 8:01 a.m. (Feb. Tr. 64, 66; Mar. Tr. 80; Plaintiff's Ex. 10, at 7)

Upon birth, Tony was limp and swollen as a result of excessive fluid within his body, and he had no apparent signs of life. (Feb. Tr. 77; Mar. Tr. 145; Plaintiff's Ex. 2, at 5) In fact, at one minute after his birth Tony was found to have no discernible heart or respiratory rate. (Id.)

Resuscitation efforts were made by the medical staff: Tony was intubated to clear a breathing passage; mechanical respiration was provided (Mar. Tr. 98; Defendant's Ex. A, at 3); and medications were injected into his heart. Seven minutes post delivery, Tony's heartbeat and respiration were established. (Plaintiff's Ex. 2, at 5) Tony was assessed to have an Apgar score of zero at one and five minutes of life and a score of three at ten minutes of life. (Plaintiff's Ex. 2, at 5)² Tony's diagnosis included a laundry list of various medical problems, inter alia, neonatal asphyxia, congenital hydrops, and congestive heart disease. (Defendant's Ex. B, at 30)

Luis Sr. was awakened shortly after the birth of his son by Dr. Magelssen. (Mar. Tr. 265)³ This was the first time they had met. Luis Sr. testified to the following conversation between them at that time:

A. ... The doctors told me I had a boy, and I was a little excited about that. Then they told me, `But he was born with complications.' And I asked them what kind of complications, and they said, `He wasn't breathing but we revived him' and not to—not to put my hopes too high because he probably didn't have a chance to live. And I became upset.

Q. You became emotional?

A. Emotionally upset, yes.

Q. Did you speak to the doctors as to what caused Tony's problems?

A. Yes, I asked him why was he born that way and he goes, `That's the way some children are born.' (Feb. Tr. 67)⁴

Dr. Magelssen's testimony is consistent with that of Luis Sr.⁵ Like the doctor, Luis Sr. did not expect his son to be born by cesarean section nor did he expect the labor and delivery to take as long as it did. (Feb. Tr. 74)

The day following his birth, Tony suffered from seizure-like activity which subsided after he was treated with a drug called Phenobarbital. (Plaintiff's Ex. 2, at 8) He remained in the hospital for over two months during which time he underwent several medical procedures including opening the heart to relieve pressure and intubating the lung area; Luis Sr. signed informed consent forms for both procedures. (Feb. Tr. 70, 77-78; Defendant's Ex. B, at 4) Tony was discharged in the care of his parents on February 14, 1978, but made a number of subsequent visits to the outpatient clinic at Madigan. During those visits (which occurred over the course of one half year) the staff noted Tony's severe asphyxiation (lack of oxygen), low Apgar scores, c-section cesarean section CPD delivery, as well as other severe medical abnormalities. (Defendant's Ex. B) In one document, a staff member noted that with respect to the infant's parents, "Do not believe they understand that he may have problems in future." (Defendant's Ex. B, at 17)⁶

In May 1978 Kyong took Tony to New York where they stayed with her mother-in-law, Teresa Martinez, until November 2, 1978. (Feb. Tr. 25) During this time period, Mrs. Martinez took Tony to the Bronx Mutual Health Station for regular vaccinations and on occasion when he had a cold. (Feb. Tr. 27-28) Tony and his mother returned to Washington, and one month later (December 1978), Kyong left her husband and son because of marital problems. (Mar. Tr. 269) Unable to care for his son without Kyong's help, Luis Sr. sent Tony back to Mrs. Martinez; he has been in her care ever since. (Feb. Tr. 26, 28; Mar. Tr. 269)

Although Mrs. Martinez did not become Tony's legal guardian until February 7, 1984 (more than one year after she filed the administrative claim against the Government for medical malpractice), she was his primary caretaker since December 1978. (Feb. Tr. 88; Plaintiff's Ex. 5)

Born in Puerto Rico in 1942, Mrs. Martinez is English speaking and studied psychology and social work at the College of New Rochelle for three years where she received her Associates degree in 1979 and her Bachelors degree in 1986. (Feb. Tr. 21-22, 29; Mar. Tr. 185, 246) She has worked at Sheltering Arms Children Service, a foster care agency placing children in appropriate homes since December 1986. Prior to that she was employed since December 1979 by the City of New York Social Service Department as an eligibility specialist where she helped clients obtain inter alia public assistance...