Tolbert v. Gallup Indian Med. Ctr.
| Decision Date | 17 August 2021 |
| Docket Number | CIV 19-0830 JB/LF |
| Citation | 555 F.Supp.3d 1133 |
| Parties | Phillip TOLBERT and Thedore W. Barudin, Personal Representative for the Estate of Rose Sky Tolbert, Plaintiffs, v. GALLUP INDIAN MEDICAL CENTER; Department of Health and Human Services; The United States of America; Gienia Lynch; Janet M. Greenholz; Safia Rubaii; Gilberto Alvarez-Colon; Robert Leach; Terence H. Hamel and Regina Williams, Defendants. |
| Court | U.S. District Court — District of New Mexico |
Lisa K. Curtis, Julia Gabrielle Coulloudon, Laura Callanan, Curtis & Co. Law Firm, Albuquerque, New Mexico -- and -- Brandon W. Vigil, Law Office of Brandon W. Vigil, Albuquerque, New Mexico, Attorneys for the Plaintiffs.
Fred Federici, Acting United States Attorney, Elizabeth M. Martinez, Kimberly N. Bell, Christine Hyojin Lyman, Assistant United States Attorneys, United States Attorney's Office, Albuquerque, New Mexico, Attorneys for the Defendant United States of America.
THIS MATTER comes before the Court on Defendant United States’ Partial Motion to Dismiss for Lack of Subject Matter Jurisdiction, filed August 18, 2020 (Doc. 50)("Motion"). The Court held a hearing on September 16, 2020. See Clerk's Minutes at 1, filed February 22, 2021 (Doc. 58). The primary issues are: (i) whether the Court should dismiss the negligent failure-to-transfer claim, for failure to transfer decedent Rose Sky Tolbert and her mother, Charlene Suina, to a hospital with a neonatal intensive care unit ("NICU"), because Plaintiffs Phillip Tolbert and Theodore W. Barudin, the personal representative for R. Tolbert's estate (collectively, "the Plaintiffs"), have not exhausted their administrative remedies under the Federal Tort Claims Act, 28 U.S.C. § 2675(a) ("FTCA"), where the Plaintiffs’ Standard Form 95s ("SF-95s") spend two paragraphs discussing events before R. Tolbert's delivery; (ii) whether the Court should dismiss the claims of negligent hiring, credentialing, privileging, training, and supervision of medical personnel, because the discretionary-function exception to the FTCA's waiver of sovereign immunity bars these claims; (iii) whether the Court should dismiss the improperly-equipped-emergency-room claim, because the discretionary-function exception bars this claims; and (iv) whether the Court should deny the Plaintiffs’ punitive damages and prejudgment interest request, because 28 U.S.C. § 2674 prohibits the Court from awarding punitive damages or prejudgment interest. The Court concludes that: (i) it will not dismiss the Plaintiffs’ allegations regarding the Defendant United States of America's failure to transfer the mother, Charlene Suina, and R. Tolbert to a different hospital, because the SF-95s provide the United States with adequate notice of the Plaintiffs’ claims and discuss in detail events that occurred before R. Tolbert's delivery; (ii) the Court will dismiss the negligent training claim, and dismiss in part the negligent credentialing and privileging claims under the FTCA's discretionary-function exception; (iii) the Court will dismiss the emergency-room-equipment claim, because selecting emergency room equipment involves discretionary policy decisions; and (iv) the Court will dismiss the Plaintiffs’ request for punitive damages and prejudgment interest, because 28 U.S.C. § 2674 prohibits the Court from awarding such damages against the United States in FTCA cases, and 28 U.S.C. § 2674 is constitutional. Accordingly, the Motion is granted in part and denied in part.
The Court takes its facts from the Complaint, filed September 9, 2019 (Doc. 1). The Court accepts the factual allegations as true for the purposes of the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ; Sanders v. Mountain Am. Fed. Credit Union, 689 F.3d 1138, 1141 (10th Cir. 2012) (). The Court does not, however, accept as true the legal conclusions within the Complaint. See Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 ().
P. Tolbert and Suina are R. Tolbert's parents, and reside in Gallup, New Mexico. See Complaint ¶ 36, at 7. The United States "through the Indian Health Services, does business and operates a healthcare facility called "Gallup Indian Medical Center" ("Gallup Medical") in Gallup, New Mexico." Complaint ¶ 37, at 7. "The events giving rise to this complaint occurred at Gallup Indian Medical Center, which is part of the United States Health and Human Services Department and the Indian Health Service located in Gallup, New Mexico on September 9-10, 2017." Complaint ¶ 45, at 9. R. Tolbert's mother, Suina, had given birth to six children before giving birth to R. Tolbert. See Complaint ¶ 2, at 1. During her previous births, Suina experienced c-sections and placental abruption
. See Complaint ¶ 3, at 2.
Suina and Gallup Medical were aware that Suina had gestational diabetes2
and a positive anti-kell antibody.3 Complaint ¶ 2, at 1. Gallup Medical does not have a neonatal4 intensive care unit ("NICU"), nor does it have "any qualified specialized neonatal staff to care for a premature baby." Complaint ¶ 3, at 2.
Suina arrived at Gallup Medical "at approximately 5:30 p.m. on September 9, 2017." Complaint ¶ 2, at 1. Suina was thirty-five weeks pregnant, about five weeks short of a full-term pregnancy5 See Complaint ¶ 2, at 1. Because Suina and R. Tolbert had high heart rates, Gallup Medical Obstetrician Dr. Gienia Lynch conducted a drug screen, which came back negative. See Complaint ¶ 3, at 2. Dr. Lynch was unable to diagnose "the cause of the abnormal condition of her patient," Suina. Complaint ¶ 9, at 3. At 7:20 p.m., Suina called P. Tolbert; P. Tolbert was a truck driver and "was driving a route out of state." Complaint ¶ 4, at 2. Suina informed P. Tolbert during the call that she and R. Tolbert had elevated heart rates. See Complaint ¶ 4, at 2. "Dr. Lynch came into the room at the time of the call and told the parents that an emergen[cy] cesarean section
would need to be consented to ...." Complaint ¶ 4, at 2. Suina consented to the emergency cesarean section. See Complaint ¶ 4, at 2.
From 7:20 p.m. to 10:00 p.m., Suina did not see Dr. Lynch and "became very distressed at the lack of attention to her or the baby." Complaint ¶ 5, at 2. Dr. Lynch then "activate[d] the c-section team" some time after 10:09 p.m. Complaint ¶ 5, at 2. Suina went into the operating room at 11:14 p.m. See Complaint ¶ 5, at 2. Dr. Janet Greenholz, a pediatrician, was present for R. Tolbert's birth. See Complaint ¶ 11, at 3. A nurse-midwife substituted for an assistant surgeon during the delivery, because there was no assistant surgeon available. See Complaint ¶ 6, at 2-3. R. Tolbert was delivered at 11:43 p.m. "over six hours after arrival." Complaint ¶ 5, at 2.
"The physicians, nurses and other Gallup Medical staff assessed, cared for, diagnosed and treated baby Rose as if she was a full-term baby, rather than the pre-term (premature) baby of a mother who had gestational diabetes
and other complications in her pregnancy." Complaint ¶ 10, at 3. "Dr. Greenholz did basic post-delivery checks that, while partially appropriate for a full-term baby, were wholly inappropriate for a pre-mature baby of a mother with gestational diabetes
and other pregnancy complications necessitating emergency c-section." Complaint ¶ 12, at 3. "Proper orders for lab and other studies and orders to the nurses for intensive monitoring and care for her patient were not made by Dr. Greenholz." Complaint ¶ 12, at 4. Following the birth, R. Tolbert's "cord blood" was "sent to the lab ... for analysis," but "was never analyzed. Complaint ¶ 12, at 3.
After the birth, Dr. Lynch performed surgery on Suina. See Complaint ¶ 20, at 5. Suina had consented to a tubal ligation
surgery. See Complaint ¶ 20, at 5. "Dr. Lynch destroyed the fallopian tubes during the surgery, rather than ‘tying her tubes’ as was the understood surgery." Complaint ¶ 20, at 5 (). "This extension of the surgery meant that the surgery would never be reversible." Complaint ¶ 20, at 5. "There was no consent for the extended and irreversible surgery." Complaint ¶ 20, at 5. "The lack of consent and the extension of the surgery by Dr. Lynch ... caused Phillip Tolbert and Charlene Suina" to be "incapable of ever having a child together, now that baby Rose has died." Complaint ¶ 20, at 5.
R. Tolbert "was treated in every way as a normal term baby although she was not by the nursing and other health care staff at Gallup Medical." Complaint ¶ 14, at 4. Regina Williams, a Register Nurse ("R.N."), was caring for R. Tolbert, and did not "compress and expel the amniotic fluid from her system." Complaint ¶ 14, at 4. "There are no oxygen saturations
listed for baby Rose in her medical record." Complaint ¶ 16, at 5. "There are no arterial blood gas readings for baby Rose in her medical record." Complaint ¶ 17, at 5. "There were no medications given to baby Rose ...." Complaint ¶ 18, at 5. R. Tolbert's lungs were not fully matured after the birth. See Complaint ¶ 21, at 5.
R. Tolbert then "was handed to her grandmother in a room to hold." Complaint ¶ 15, at 5. R. Tolbert's grandmother "became terrified that suddenly" R. Tolbert "was not breathing." Complaint ¶ 19, at 5. R. Tolbert began "aspirating amniotic fluid" and went "into respiratory distress at approximately 1:40 a.m.," about two hours after the birth. Complaint ¶ 21, at 5. When R....
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