Quinn v. United States

• Decision Date: 20 May 2013
• Docket Number: No. 7:09–CV–0793 (GTS/DEP).,7:09–CV–0793 (GTS/DEP).
• Parties: Sandra QUINN, individually and as administratrix of the estate of E.Q., deceased; and Peter Quinn, individually, Plaintiffs, v. UNITED STATES; Mary Allen, D.O.; and Samaritan Medical Center, Defendants.
• Court: U.S. District Court — Northern District of New York

946 F.Supp.2d 267

Sandra QUINN, individually and as administratrix of the estate of E.Q., deceased; and Peter Quinn, individually, Plaintiffs,

v.UNITED STATES; Mary Allen, D.O.; and Samaritan Medical Center, Defendants.

No. 7:09–CV–0793 (GTS/DEP).

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

May 20, 2013.

Fitzgerald & Fitzgerald, LLP, James P. Fitzgerald, Esq., of Counsel, Yonkers, NY, for Plaintiffs.

Hon. Richard S. Hartunian, United States Attorney for the N.D.N.Y., William F. Larkin, Esq., Assistant United States Attorney, of Counsel, Syracuse, NY, for United States.

Martin, Ganotis, Brown, Mould & Currie, LLP, Brian M. Gargano, Esq., of Counsel, Syracuse, NY, for Mary Allen, D.O.

Mackenzie Hughes LLP, Jennifer Ploetz Williams, Esq., Stephen T. Helmer, Esq., of Counsel, Syracuse, NY, for Samaritan Medical Center.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this medical malpractice action filed by Sandra Quinn, individually and as administratrix of the estate her deceased infant daughter, E.Q., and Peter Quinn, individually (“Plaintiffs”) against the United States; Mary Allen, D.O. (“Dr. Allen”); and Samaritan Medical Center (“SMC”) (collectively, “Defendants”), are motions for partial summary judgment by Defendants United States and Allen and a motion for summary judgment by Defendant SMC. (Dkt. Nos. 55, 56, 57.) For the reasons set forth below, the motion for partial summary judgment by Defendant United States is granted, the motion for partial summary judgment by Defendant Allen is granted in part and denied in part, and the motion for summary judgment by Defendant SMC is granted in part and denied in part.

I. RELEVANT BACKGROUNDA. Plaintiffs' Amended Complaint

Generally, Plaintiffs' Amended Complaint asserts five causes of action stemming from Ms. Quinn's pre-natal care and her delivery of E.Q. as well as E.Q.'s post-natal medical treatment and death. ( See generally Dkt. No. 16 [Pls.' Am. Compl.].)

More specifically, Plaintiffs' Amended Complaint alleges: (1) conscious pain and suffering of E.Q. as a result of Defendants' negligence and malpractice; (2) lack of informed consent by Ms. Quinn and E.Q. against all Defendants; (3) wrongful death of E.Q. against all Defendants; (4) intentional infliction of emotional distress by Plaintiffs against Defendants Allen and SMC; and (5) negligent infliction of emotional distress by Plaintiffs against Defendants Allen and SMC. ( Id.)

B. Recitation of Undisputed Facts

The following material facts have been asserted and supported by one or more Defendants in their Local Rule 7.1 Statements of Undisputed Material Facts, and either admitted or denied without a supporting record citation by Plaintiffs in their Local Rule 7.1 Responses, or unopposed by Plaintiffs. ( See Dkt. No. 55–3 [Def. United States' Unopposed Rule 7.1 Statement.] ) ( Compare Dkt. No. 56–2 [Def. Allen's Rule 7.1 Statement] with Dkt. No. 63–53 [Pl.'s Rule 7.1 Response].) ( Compare Dkt. No. 59 [Def. SMC's Rule 7.1 Statement] with Dkt. No. 64–56 [Pl.'s Rule 7.1 Response].)

Prior to the birth of E.Q., Ms. Quinn received pre-natal care at the Guthrie/Fort Drum OB Clinic from Certified Nurse–Midwife Jennifer Apke and Dr. Elizabeth Lucal, both United States employees. On March 27, 2007, Plaintiffs went to SMC because Ms. Quinn was complaining of decreased fetal movement at approximately 32 weeks' gestation. During her visit to SMC on March 27, 2007, Ms. Quinn was treated and released by Dr. Byers, also a United States employee.

On April 3, 2007, Ms. Quinn, accompanied by Mr. Quinn, again presented to SMC with complaints of decreased fetal movement, where she was treated by Dr. Lucal. E.Q. was delivered by non-emergent Cesarean section due to non-reassuring fetal status at 2:52 p.m. After delivery, E.Q. was treated by Dr. Allen. E.Q. was intubated, and then transferred to the Neonatal Intensive Care Unit (NICU). Dr. Allen examined E.Q. and noted that she exhibited a blanched pallor, absent respiratory effort, and metabolic acidosis. Medical records reflect that E.Q. began seizure activity shortly after admission to the NICU. Dr. Allen kept E.Q. on a ventilator and ordered laboratory studies, Phenobarbital and intravenous hydration. At 4:00 p.m., Dr. Allen ordered an emergency request for a blood transfusion with O Negative blood.¹ At 4:30 p.m., E.Q. was given 40 ccs of packed red blood cells.²

The blood bank provided blood to the NICU for E.Q.'s transfusion. The Emergency Request for Uncrossmatched Blood form reflects that two blood transfusion service technicians recorded that a unit of type O Negative blood, with identification number 01KK05804A, was released. The Laboratory Discharge Summary Report also reflects the blood type of unit number 01KK05804A as O Negative. However, the Unit Issue Card from the blood bank reflects that the blood in unit identification number 01KK05804A was type A Positive. The technicians identified on the Emergency Request form are the same technicians identified on the Unit Issue Card. The Unit Transfusion Card, reflects that the blood being provided, with identification number 01KK05804A, was type A Positive. The Unit Transfusion Card is signed by the registered nurse (“RN”) who administered it, as well as the RN who verified it.³

Records reflect a slight change in color after the transfusion, but that eventually, E.Q.'s status deteriorated. Dr. Allen consulted with Dr. Tom Curran at Crouse Medical Center in Syracuse, who suggested that Dr. Allen “stop efforts” because E.Q.'s arterial blood gas was “incompatible with life.” ⁴ Life support was removed, and E.Q. was pronounced dead at 6:39 p.m.

Plaintiffs executed an authorization for post-mortem examination of E.Q. on April 3, 2007. Specifically, Plaintiffs authorized SMC to “perform a complete post mortem examination to determine the cause of death or to verify the cause of death, or” to determine “complications contributing to cause of death.” ⁵ Plaintiffs selected TLC Funeral Home for E.Q. Ms. Quinn was discharged from SMC on April 5, 2007 at 10:15 a.m. E.Q.'s body was released to TLC Funeral Home on April 5, 2007 at 4:20 p.m., without an autopsy having been performed.

According to Dr. Allen, she had a conversation with the pathologist approximately two to three days after E.Q.'s death, when she was notified that an autopsy had not been performed because E.Q.'s blood loss was so extreme, it was not appropriate to perform an autopsy. Dr. Allen called Plaintiffs to notify them that an autopsy had not been performed and relayed to Mr. Quinn that an autopsy had not been performed due to extreme blood loss. According to Dr. Allen, she did not agree with the pathologist that an autopsy did not need to be performed on E.Q., nor did she tell the pathologist not to perform the autopsy. Dr. Allen testified that she did not remember the name of the pathologist with whom she spoke, but said that “she was foreign and had an accent.” ⁶

Dr. Yilin Zhang is a staff pathologist at SMC, whose responsibilities include performing autopsies. Dr. Zhang testified that she does not recall telling a physician in the NICU at SMC that an autopsy could not be performed on E.Q. due to insufficient blood in the vascular system. Dr. Zhang further testified that insufficient blood in the vascular system is not a valid reason for not performing an autopsy.

C. Relevant Procedural Background

On November 9, 2007, Ms. Quinn filed a Form 95 with the U.S. Department of the Army, alleging negligence in the medical care and treatment provided to her by employees of the Fort Drum OB–GYN Clinic, resulting in the pain and suffering and wrongful death of her daughter, E.Q., occurring on April 3, 2007. Mr. Quinn did not submit an administrative claim to the U.S. Department of the Army.

On November 19, 2007, Ms. Quinn commenced an action in the Supreme Court of the State of New York, Jefferson County, against Dr. Allen and SMC as well as C.N.M. Apke, Dr. Lucal, Dr. Byers, Fort Drum OB–GYN Clinic and Guthrie Ambulatory Health Care Clinic, alleging medical malpractice. That action was discontinued against all defendants except Dr. Allen and SMC on the grounds that the dismissed defendants were protected employees or entities of the United States.

On July 10, 2009, Ms. Quinn commenced this action by filing a complaint against the United States asserting claims of medical malpractice under the Federal Tort Claims Act (“FTCA”).

On October 5, 2009, Plaintiffs Mr. and Ms. Quinn commenced an action in the Supreme Court of the State of New York, Jefferson County, against Dr. Allen and SMC, asserting claims of intentional infliction of emotional distress and negligent infliction of emotional distress stemming from allegations that the defendants failed to perform an autopsy on E.Q.

A motion to amend the complaint in this federal court action to join the two complaints pending in State Court was granted. Plaintiffs subsequently amended their complaint on February 9, 2010.D. Parties' Arguments on Their Motions

1. Motion for Partial Summary Judgment by the United States

Generally, in its memorandum of law, the United States asserts the following arguments: (1) this Court lacks subject matter jurisdiction of the claims against it by Mr. Quinn because he failed to timely submit an administrative claim pursuant to 28 U.S.C. § 2675(a) and (2) punitive damages may not be awarded against the United States in a Federal Tort Claims Act action pursuant to 28 U.S.C. § 2674. ( See generally Dkt. No. 55–2, at 5–6 [Def. United States' Mem. of Law].)

Plaintiffs have not opposed this motion.

2. Motion for Partial Summary Judgment by Dr. Allen

Generally, in her memorandum of law, Dr. Allen asserts the following arguments: (1) Plaintiffs' claim for intentional infliction of emotional distress should be dismissed because it is time-barred; (2) Plaintiffs' claim for negligent infliction of emotional distress should be dismissed because Plaintiffs...