Ortega v. United States
| Decision Date | 21 October 2016 |
| Docket Number | No. 16 C 5475,16 C 5475 |
| Parties | INDELIZA ORTEGA, Individually and as Mother of ADRIAN ORTEGA, a Minor, Plaintiff, v. THE UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
MEMORANDUM OPINION AND ORDER
Indeliza Ortega ("Plaintiff") brings this action against the United States of America ("the Government"), alleging that its physicians breached their duty of care and are responsible for the permanent injuries suffered by Adrian Ortega, Plaintiff's son, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. (R. 1, Compl.) Presently before the Court is the Government's motion to dismiss Plaintiff's claim for Adrian's medical expenses pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 4, Mot.) For the reasons stated below, the motion is denied.
On April 16, 2012, Plaintiff, who at that time was pregnant, made her initial prenatal visit to Chicago Family Health Center ("FHC"), a designated federally qualified health center. FHC was to provide professional medical, prenatal, obstetric, and nursing care to Plaintiff. During her initial visit, FHC's physicians noted several obstetrical risk factors, including advanced maternal age, obesity, and chronic essential hypertension. (R. 1-2, Certificate of Merit at 1.) Plaintiff's early examinations were otherwise unremarkable. (Id.) However, during her third trimester, Plaintiff demonstrated a potential for fetal macrosomia, or high birth weight, based on significant discrepancies between the fetus's gestational age and fundal height progression. However, Plaintiff was not counseled regarding the risks of natural childbirth with fetal macrosomia, nor was she offered a cesarean delivery. (Id.) When Plaintiff went into labor on November 19, 2012, her doctors noted signs of fetal distress that are highly indicative of potential birth asphyxia. (R. 1-2, Certificate of Merit at 1.) However, Plaintiff's physicians did not perform a cesarean section, and complications and injuries sustained during child birth left her son with severe brain injury, permanent developmental delays, and neurologic injuries.
On November 5, 2014, within two years after Adrian's birth, Plaintiff filed a Standard Form 95 ("SF-95") with the U.S. Department of Health and Human Services ("HHS"), claiming damages in the amount of $18,000,000. (R. 5-1, SF-95.) The claimant listed on the SF-95 was "Adrian Ortega, minor, by his mother and next friend, Indeliza Ortega," and the form was signed by Emilio E. Machado, an attorney retained by Plaintiff. (Id.) Plaintiff attached medical records, medical bills, and a physician's report to her SF-95. (Id.) On December 18, 2015, HHS sent a letter denying Plaintiff's claim. (See R. 8-3, Denial Letter.)
Plaintiff filed this action under the FTCA on May 23, 2016. (R. 1, Compl.) Plaintiff claims that the Government, through its employees at FHC, breached its duty of care by failing to properly consider potential risks for the fetus and declining to perform a cesarean delivery. (Id. ¶¶ 9-10.) Plaintiff asserts that Adrian suffered severe and permanent brain damage, multiple developmental delays, and neurologic injuries by her physicians' failure. (Id. ¶ 10.) Plaintiffseeks medical expenses for Adrian's care on her own behalf, as well as damages for Adrian's pain and suffering, loss of a normal life, and lost income on his behalf. (Id.)
On August 5, 2016, the Government filed the present motion to dismiss for failure to state a claim. (R. 4, Mot.) The Government argues that because Plaintiff failed to file an administrative claim on her own behalf, she has not exhausted her administrative remedies as required under 28 U.S.C. § 2675(a). (R. 5, Mem. at 2.) Accordingly, because only she can recover for Adrian's medical expenses and not Adrian himself, the Government argues that this claim must be dismissed. (Id.) Plaintiff responds that because she gave the Government constructive notice of her intent to pursue her claim for the medical expenses she incurred for her minor son, she has satisfied § 2675(a). (R. 8, Resp. at 1-2.)
"A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015) (citation and internal alteration omitted). To survive a motion to dismiss, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When considering a motion under Rule 12(b)(6), the Court must "accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff." Kubiak v. City of Chi., 810 F.3d 476, 480-81 (7th Cir. 2016). The Court may consider allegations in the complaint, "documents that are attached to thecomplaint, documents that are central to the complaint and referred to in it, and information that is properly subject to judicial notice." Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).
As a preliminary issue, the Government argues that Adrian has no personal cause of action to recover medical expenses on his own behalf because, under Illinois law, only parents may recover medical expenses incurred for their minor children in their individual capacities.1 (R. 5, Mem. at 7.) Plaintiff does not respond to this argument.
Under the FTCA:
[T]he district courts . . . shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages . . . for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1) (emphasis added). Therefore, to establish whether and to whom the Government is liable for Adrian's medical expenses, the Court must look to Illinois law as the alleged negligence took place in Illinois. See Luna v. United States, 454 F.3d 631, 634 (7th Cir. 2006) ().
Illinois's Rights of Married Persons Act, known as the family expense statute, includes a provision which states that:
The expenses of the family and of the education of the children shall be chargeable upon the property of both husband and wife, or of either of them, in favor of creditors therefor, and in relation thereto they may be sued jointly or separately.
750 ILL. COMP. STAT. 65/15. "[I]t is well established . . . that under the family expenses statute, parents are liable for the medical expenses of their minor children." Manago ex rel. Pritchett v. Cty. of Cook, 57 N.E.3d 701, 712 (Ill. App. Ct. 2016) (internal quotation marks omitted). Thus, under Illinois law, only parents may bring claims to recover medical expenses incurred in treating a minor child, as parents are the ones responsible for such expenses. See Primax Recoveries, Inc. v. Atherton, 851 N.E.2d 639, 642-43 (Ill. App. Ct. 2006) (). Because the cause of action belongs to the parents, "if the parents are not entitled to recover, neither is the child." Bauer ex rel. Bauer v. Mem'l Hosp., 879 N.E.2d 478, 502 (Ill. App. Ct. 2007). Thus, since Illinois law governs this FTCA suit, only Plaintiff, Adrian's mother, may bring a claim to recover medical expenses resulting from Adrian's injuries. Accordingly, to the extent that Plaintiff's complaint included a claim for medical expenses on Adrian's behalf, the claim fails under Illinois law.
Regarding Plaintiff's own claim for Adrian's medical expenses, the Government argues that she did not exhaust her own claim at the administrative level, as required by the FTCA, because she did not list herself as a claimant on the SF-95 or file one on her own. (R. 5, Mem. at 2-6.) Under the doctrine of sovereign immunity, the United States cannot be sued "absent a consent to be sued that is unequivocally expressed." United States v. Bormes, 133 S. Ct. 12, 16 (2012) (citation and internal quotation marks omitted). The FTCA expressly waives the sovereign immunity of the United States in torts suits resulting in injury, loss of property, or death "caused by the negligent or wrongful act or omission of federal employees acting within the scope of their employment." Levin v. United States, 133 S. Ct. 1224, 1228 (2013) (). Section 2675(a) of the FTCA, however, establishes an administrative exhaustion requirement before such a suit can be initiated. That Section provides:
An action shall not be instituted upon a claim against the United States for money damages for injury or loss of property or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, unless the claimant shall have first presented the claim to the appropriate Federal agency and his claim shall have been finally denied by the agency in writing and sent by certified or registered mail.
28 U.S.C. § 2675(a). The U.S. Department of Justice has...
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