Phelan v. Torres

• Decision Date: 03 January 2012
• Docket Number: Nos. 1:04–cv–03538–ERK–CLP, 1:06–cv–01663–ERK–CLP.,s. 1:04–cv–03538–ERK–CLP, 1:06–cv–01663–ERK–CLP.
• Citation: 843 F.Supp.2d 259
• Parties: Desiree PHELAN, by her parents John PHELAN and Ellien Phelan, and John Phelan and Ellien Phelan, individually, Plaintiffs, v. Marisol TORRES, individually and as caseworker; Leta Macadaeg, individually and as supervisor; Juanita Bowers, individually and as director, Elizabeth Mullane, individually and as director of medical services; St. Vincent's Services, Inc.; Monica Hoover, individually and as caseworker; Barbara Felton, individually and as manager; Robert Jackson, individually and as supervisor; Kathryn Croft, individually and as Deputy Commissioner; Nicholas Scoppetta, individually and as Commissioner; and City of New York, Defendants. Desiree Phelan, by her parents John Phelan and Ellien Phelan, Plaintiff, v. Kings County Hospital Center; New York City Health and Hospitals Corporation; Jeffrey Birnbaum, M.D.; and Sundari Nandanavanam, M.D., Defendants.
• Court: U.S. District Court — Eastern District of New York

843 F.Supp.2d 259

Desiree PHELAN, by her parents John PHELAN and Ellien Phelan, and John Phelan and Ellien Phelan, individually, Plaintiffs,

v.Marisol TORRES, individually and as caseworker; Leta Macadaeg, individually and as supervisor; Juanita Bowers, individually and as director, Elizabeth Mullane, individually and as director of medical services; St. Vincent's Services, Inc.; Monica Hoover, individually and as caseworker; Barbara Felton, individually and as manager; Robert Jackson, individually and as supervisor; Kathryn Croft, individually and as Deputy Commissioner; Nicholas Scoppetta, individually and as Commissioner; and City of New York, Defendants.

Desiree Phelan, by her parents John Phelan and Ellien Phelan, Plaintiff,

v.Kings County Hospital Center; New York City Health and Hospitals Corporation; Jeffrey Birnbaum, M.D.; and Sundari Nandanavanam, M.D., Defendants.

Nos. 1:04–cv–03538–ERK–CLP, 1:06–cv–01663–ERK–CLP.

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

Dec. 30, 2011.

As Amended Jan. 3, 2012.

Carolyn A. Kubitschek, Lansner Kubitschek Schaffer & Zuccardy, New York, NY, for Plaintiffs.

Timothy J. O'Shaughnessy, McAloon & Friedman, Carl Judah Schaerf, Bruce Strikowsky, Schnader Harrison Segal & Lewis LLP, Patricia A. Murphey, Conway, Farrell, Curtin & Kelly, P.C., New York, NY, for Defendants.

MEMORANDUM & ORDER

KORMAN, Senior District Judge:

Desiree Abson was born on December 5, 1995 at Kings County Hospital Center (“KCHC”). Desiree's mother, Darlene Abson, reported using alcohol and cocaine during her pregnancy, receiving no prenatal care, and “smok[ing] a pack of cigarettes daily since 1989.” SVS Defs.' Rule 56.1 Stmt. ¶¶ 31, 32. Desiree remained at KCHC until the City of New York (“City”), through its Child Welfare Administration (“CWA”), the predecessor agency to the Administration for Children's Services (“ACS”), took custody of her on January 2, 1996 and later placed her with a foster care agency, St. Vincent's Services, Inc. (“SVS” or “St. Vincent's Services”). On February 1, 1996, after SVS placed Desiree in a foster home, Desiree began having seizures. After her third visit to the emergency room at KCHC, all of which occurred in February 1996, it was determined that Desiree had four broken ribs and bleeding in her brain. She was then diagnosed with Shaken Baby Syndrome, a devastating form of child abuse caused by violently shaking a baby, resulting in traumatic brain injury, which is characterized by a constellation of injuries including subdural hematomas (i.e., bleeding in the brain), retinal hemorrhages, rib fractures and long-bone fractures.¹ She was subsequently placed by SVS with John and Ellien Phelan, a foster care placement that led to her adoption by them on June 3, 1999.

On August 14, 2004, John and Ellien Phelan commenced an action pursuant to 42 U.S.C. § 1983 on behalf of Desiree, and on their own behalf, alleging among other things that the defendants violated Desiree's civil rights. Plaintiffs also alleged pendent claims under New York law. They named as defendants the City, St. Vincent's Services, and various employees of the City and SVS. The City employee defendants who remain in the case are Kathryn Croft, Robert Jackson, Barbara Felton, and Monica Hoover. The St. Vincent's Services employee defendants who remain in the case are Marisol Torres (now Zobler, hereinafter “Torres–Zobler”), Leta Macadaeg, and Elizabeth Mullane. See Pls.' Opp'n Br. 1.

On April 10, 2006, almost two years after filing the first complaint, plaintiffs filed a complaint pursuant to 42 U.S.C. § 1983 against KCHC, two doctors employed by KCHC and KCHC's parent, the New York City Health and Hospitals Corporation. The KCHC employee defendants are Dr. Jeffrey Birnbaum—an attending physician—and Dr. Sundari Nandanavanam—a first year resident. Plaintiffs allege, without any specific allegation that Dr. Nandanavanam, failed to provide Desiree with adequate medical treatment. Plaintiffs also alleged three causes of action arising under New York law. The two complaints were consolidated. After an unsuccessful motion to dismiss and the completion of discovery, all the defendants moved for summary judgment. In an unpublished Memorandum and Order, I granted the motion of each of the defendants. See Phelan ex rel. Phelan v. Torres, Nos. 04–03538 & 06–01663, 2011 WL 6935354 (E.D.N.Y. Dec. 30, 2011). See Phelan v. Torres, Nos. 04-03538 & 06-01663, 2011 WL 6935354 (E.D.N.Y. Dec. 30, 2011). The only portion of that Memorandum and Order that warrants publication here addresses the liability of SVS.

FACTUAL BACKGROUND

A. Desiree's Placement in Foster Care

1. Certification of Maitland

Janice Maitland, who would become Desiree's foster mother, initially applied to be a foster parent with SVS on November 8, 1994. Ex. FF, at SVS 3810.² She is a licensed Registered Nurse and, at the time she applied, had worked as a pediatric nurse for over twelve years. Ex. K, Maitland Dep. 22:23–24:22. From 1991 to 2000, Maitland worked in the neonatal intensive care unit at Brookdale Hospital. Id. at 23:7–13. “Pursuant to Section 424–a of the Social Services Law, St. Vincent's Services completed a background check of Maitland.” SVS Defs.' Rule 56.1 Stmt. ¶ 97. The State Central Register (“SCR”) Report on Maitland, issued on February 22, 1995, did not indicate any incidents of prior child abuse or maltreatment. Id.; Ex. FF, at SVS 3895. Desiree was placed with Maitland on January 2, 1996.

As part of the Foster Parent Application Process, Maitland's home was inspected on April 19, 1995. SVS Defs.' Rule 56.1 Stmt. ¶ 108. That same day, SVS case workers Sister Catherine Peter and Shelton Collins completed a home study and interviewed Maitland. Ex. FF, at SVS 3873–82. Maitland identified her sister, Elma Guillaume, as her backup in-home childcare provider. Ex. FF, at SVS 3880. Guillaume, who was also a registered nurse, lived with her husband and one child. Id.; Ex. K, Maitland Dep. 56:5–11, 57:19–22. Although SVS was required to obtain an SCR clearance for Guillaume before certifying Maitland, it did not do so until June 4, 1996. Pls.' Rule 56.1 Stmt. ¶¶ 70, 367. Nevertheless, when it came, the clearance reflected no prior reports of abuse or maltreatment. Ex. FF, at SVS 3889.

On April 26, 1995, the New York State Department of Social Services certified Maitland as a foster parent to care for as many as three children (ages 0–8 years-old), for the period April 26, 1995 to April 26, 1996. Ex. FF, at SVS 3887–88. On October 24, 1995, Maitland submitted paperwork indicating that she could accommodate a wide range of classifications for foster children with various disabilities. Ex. FF, at SVS 3805–07. The document indicates that Maitland was willing to care for children with, e.g., brain damage, but was not willing to care for children with, e.g., HIV or “Exceptional Needs.” Id. At the time of Desiree's placement, Maitland “was caring for two other foster care children,” an eight-month-old girl and the girl's four-and-a-half year-old brother. SVS Defs.' Rule 56.1 Stmt. ¶ 87.

2. Foster care placement of Desiree with Maitland

On January 2, 1996, KCHC discharged Desiree. On the same day, the City placed Desiree under the care of SVS. Ex. KK, at 1075; Ex. LL, at 955–56. That evening, Desiree was placed in Maitland's home on a temporary basis until the home of Delores Magwood, who had adopted Desiree's biological brother, could be recertified for foster care—a process which was expected to take two weeks. Id.; Ex. K, Maitland Dep. 66:23–67:4, 128:3–130:6.

On January 4, 1996, Marisol Torres–Zobler, a SVS social worker, met with Maitland and Desiree at SVS's offices for Desiree's initial medical intake examination, conducted by Dr. Matilda Bravo. Ex. FF, at SVS 0199, SVS 1645. A neurological evaluation indicated that Desiree was “jittery.” Id. Dr. Bravo recommended that Desiree be tested for HIV, and Maitland consented to the test that day. Id. at SVS 1245, SVS 1567–70. On January 29, 1996, CWA provided SVS the requisite authorization for the HIV testing. Id. at SVS 1243. After the requisite authorizations were obtained, Desiree was tested for HIV on February 7, 1996. Ex. FF, at SVS 1237. The result of the test, which was available a few days later, indicated that Desiree had HIV antibodies. Id. Such a result very likely “reflects the mother's HIV status,” rather than the baby's status. Ex. M, Ajl Dep. 512:18–513:2; see also Ex. N, Molofsky Dep. 46:23. Indeed, plaintiffs concede that Desiree was not in fact HIV positive. See Pls.' Opp'n Br. 12.

B. Desiree's First Hospitalization

Sometime on February 1, 1996, though the record is not clear as to when, Maitland took Desiree to see a pediatrician, Dr. Melanie Bravo (not to be confused with the SVS pediatrician, Dr. Matilda Bravo, mentioned above), because Desiree exhibited twitching in both her left hand and arm and in her lower lip and chin. Ex. FF, at SVS 1078. Dr. Melanie Bravo examined Desiree and referred her to the KCHC pediatric emergency room. Id. Later that day, at approximately 8:40 p.m.—the very same day—Maitland had telephoned SVS to report that Desiree was irritable, her face was twitching and that Maitland would be taking Desiree to KCHC. SVS Defs.' Rule 56.1 Stmt. ¶ 170. Less than an hour later, at approximately 9:25 p.m., Maitland brought Desiree to KCHC for irritability and jerky movements with a blank stare. Ex. X, at 11–16, 27. During the admitting physical examination, the physician witnessed a seizure. Id. at 32. Infection was among a number of possible causes considered in the differential diagnosis, and Desiree “was placed on Phenobarbital for the seizures and an antibiotic.” Hosp. Defs.' Rule 56.1 Stmt. ¶¶ 5–6. Maitland called SVS again, at approximately 11:30 p.m., to report that Desiree was being admitted to KCHC. SVS Defs.' Rule 56.1 Stmt. ¶ 173.

On February 2, 1996, Dr. Schubert, a pediatric neurologist, who examined Desiree, noted that there was “[n]o...