NICHOLAS G. GARAUFIS, District Judge.
Plaintiff M.V., a minor, brought this action against the United States through his mother and natural guardian Lorena Carpio ("Plaintiff' or "Carpio"),
On November 29 and 30, 2016, the court held a bench trial, limited to the issue of liability.
In August 2012, Carpio was pregnant with a child, M.V., fathered by her boyfriend, Christian Vela. (Bench Trial Tr. ("Tr.") (Dkts. 38, 39)
After learning she was pregnant with M.V., Carpio initially went to the Willoughby Clinic in Downtown Brooklyn for prenatal care. (Tr. 125:16-22.) The Willoughby Clinic told Carpio that she needed to go a hospital that specialized in high-risk pregnancies so Carpio went to the LFHC. (Tr. 127:21-128:6.) On August 18, 2012, Carpio had an appointment with a certified nurse midwife at the LFHC. (Tr. 146:16-25.) The midwife scheduled a series of follow-up appointments for Carpio, including an appointment on September 27, 2012, for a sonogram. (Tr. 128:21-24; Tr. 147:1-3.)
On September 27, 2012, Carpio had a sonogram at the LFHC's MFM Unit. (Tr. 129:24-130:1; Pl. Ex. 1 at CARPIO LUTHERAN MEDICAL CENTER ("CLMC") 000010.) The sonogram showed that Carpio's cervix measured 1.8 centimeters, a shorter than average measurement. (Tr. 201:16-202:3; Tr. 239:8-22; Pl. Ex. 1 at CLMC 000042.) Carpio was told that she needed to return to the MFM Unit for a follow-up appointment on October 4, 2012. (Tr. 128:19-129:3; Tr. 130:10-24.) In fact, she was told it was an "emergency . . . for [her] to come [back]" to the clinic. (Tr. 128:19-129:5.)
On October 4, 2012, Carpio took a taxi from Vela's apartment in Brooklyn to the LFHC for her follow-up appointment. (Tr. 131:2-21; Tr. 154:6-12.) Carpio had a sonogram performed by Sonia Serrano, an ultrasound technician, in the MFM Unit. (Tr. 284:21-285:7; Tr. 280:23-24; see Pl. Ex. 1 at CLMC 000146.) The sonogram started at approximately 1:40 p.m. and was completed at approximately 1:55 p.m. (Tr. 294:17-20.) The sonogram showed that Plaintiff's cervix measured 1.4 centimeters (P1. Ex. 1 at CLMC 000146), shorter than the 1.8 centimeter measurement at her appointment on September 27, 2012 (Tr. 207:5-8). The sonogram also showed funneling of the cervix and the presence of amniotic fluid or "sludge." (Pl. Ex. 1 at CLMC 000146.)
At the conclusion of the sonogram, Serrano told Plaintiff to get dressed and wait in the MFM Unit's reception area to speak with a doctor. (Tr. 132:25-133:11; Tr. 134:21:135:1.) After waiting at reception for some time, Plaintiff asked the receptionist if she could leave, explaining that she needed to pick up her daughter, Dynasty, from school at 2:30 p.m. that day. (Tr. 135:2-20.) The receptionist told Plaintiff that she needed to wait for the doctor. (Tr. 135:3-13; Tr. 148:6-8.) Shortly thereafter, Plaintiff told the receptionist that she had to leave. (Tr. 148:9-13.) The receptionist asked Plaintiff to leave a contact number. (Tr. 148:9-13.) Plaintiff provided Vela's cell phone number and left the MFM Unit. (Tr. 148:9-16; Gov't Ex. B at CARPIO SUNSET PARK ("CSP") 000004;
That same day, Dr. Iffath Hoskins, the attending physician assigned to the MFM Unit that day, reviewed the results of Carpio's October 4, 2012, sonogram and determined that Carpio needed to go to the LFHC's Labor and Delivery Unit ("Labor and Delivery") for further testing. (Tr. 217:2-218:22.) Labor and Delivery would test for an underlying infection (Tr. 217:22-218:8) and also conduct a fetal fibronectin test, which provides information as to whether a patient might deliver within the next 7 to 10 days (Tr. 220:24-221:19). Dr. Hoskins instructed Arlene Nassr, the supervisor of the MFM Unit, to contact Carpio by telephone and advise her to go to Labor and Delivery. (Tr. 31:11-21.)
For the reasons set forth infra in Section I.B.1., the following factual findings are based on Nassr's testimony concerning the LFHC's follow-up communications with Carpio.
Pursuant to Dr. Hoskins's instructions, Nassr placed several calls to Vela's cell phone— the contact number Carpio had left with the MFM Unit's reception—in an effort to contact Carpio. Nassr first called Vela's cell phone on October 4, 2012, at 3:35 p.m. (Tr. 33:1-7; Tr. 290:16-21.) There is no evidence that Nassr spoke to Vela at that particular time. Nassr placed a second call to Vela's cell phone at 4:02 p.m. that day and reached Vela, however. (Tr. 34:12-21; Tr. 291:3-6.) Nassr told Vela that she needed to speak with Carpio and that Carpio needed to come back to Labor and Delivery as soon as possible. (Tr. 34:24-35:8.) Nassr contemporaneously documented this call in the LFHC's medical records; her notes indicate that Vela told her that he would contact Carpio and advise her to go to Labor and Delivery for further testing as soon as possible as per Dr. Hoskins's instructions. (Tr. 44:11-45:10; Gov't Ex. B. at CSP 000004.) At 6:12 p.m. on October 4, 2012, someone called the clinic from Vela's cell phone. (Tr. 291:7-9.) The call lasted only 21 seconds (id.) and Nassr does not recall speaking to Vela at this time (Tr. 37:20-4).
The following morning, on October 5, 2012, Nassr checked to see whether Carpio had gone to Labor and Delivery and learned that she had not yet returned to the clinic. (Tr. 38:5-13.) At 9:16 a.m. on October 5, 2012, Nassr placed another call to Vela's cell phone (Tr. 291:10-13; Tr. 39:5-17) as it was the custom and practice of the MFM Unit to follow up with a patient until someone from the office spoke directly with the patient (Tr. 38:14-39:4). Vela answered Nassr's call; Nassr reiterated to Vela that it was important that Carpio come to Labor and Delivery that day. (Tr. 39:5-17.) Vela said that he had given Carpio the previous message and that Carpio would be coming in that day. (Tr. 46:13-18; Gov't Ex. B. at CSP 000003.) At approximately 1:00 p.m. that same day, Nassr documented that she had spoken with Vela earlier that day and that Carpio still had not come to Labor and Delivery. (Gov't Ex. B at CSP 000003; Tr. 39:20-24.)
At 1:33 p.m., Carpio called the MFM Unit using Vela's cell phone. (Tr. 291:4-16; Tr. 41:2-4.) Carpio placed the call from, or very nearby, Vela's apartment. (Tr. 294:9-15.) Nassr told Carpio that she needed to come to Labor and Delivery and Carpio said she understood and agreed to go to Labor and Delivery that same day. (Tr. 41:2-9.) Nassr did not discuss Carpio's medical condition with her. (Tr. 41:21-25.) Nassr documented her conversation with Carpio shortly thereafter. (Tr. 41:10-17;
The parties dispute certain key facts concerning the LFHC's communications with Carpio and Vela after Carpio's October 4, 2012, sonogram. As documented above, Nassr recalls speaking with both Vela and Carpio about the need for Carpio to return to the clinic for further testing. Yet Carpio and Vela deny that they ever spoke with anyone from the LFHC after Carpio's sonogram. The court fmds that Nassr's testimony is credible and corroborated by Nassr's contemporaneous notes of her telephone conversations (
By contrast, Vela and Carpio's testimony regarding their communications with the LFHC defies common sense, is contradicted by the documentary evidence introduced at trial, and is often internally inconsistent. Vela's testimony that he does not remember getting any phone calls from the LFHC about Carpio (Tr. 177:13-25; Tr. 185:12-186:4) is flatly belied by Carpio's medical records and his own cell phone records. In addition, Vela's testimony about whether Carpio uses his cell phone is internally inconsistent. Vela testified during his deposition that Carpio "never" used his cell phone. (Tr. 181:16-11; 182:19-10.) During his direct examination at trial, however, he testified that Carpio "of course" used his cell phone. (Tr. 176:24-177:6; Tr. 181:13-15.) On cross-examination, Vela changed his testimony again, stating that Carpio "never uses [his] phone on a weekday." (Tr. 186:11-14.)
Carpio's testimony is similarly inconsistent and uncorroborated. Despite the above referenced evidence that Carpio spoke with Nassr on October 5, 2012, Carpio testified that after her October 4, 2012, sonogram, she did not communicate with the LFHC until she gave birth to M.V. on October 15, 2012.
The parties also dispute what caused Carpio to deliver M.V. prematurely. Plaintiff's expert, Dr. Richard Luciani,
An "incompetent cervix" is defined as "painless dilation and delivery in [the] second trimester" of pregnancy. (Tr. 264:24-265:22 (Dr. Finkelstein testifying to and adopting the American College of Obstetrics and Gynecology's ("ACOG") definition of an incompetent cervix);
Had Carpio followed Nassr's instructions and returned to the clinic, Labor and Delivery likely would have taken the following steps in treating Carpio: (1) checked to see whether Carpio exhibited any signs of an intrauterine or cervical infection; (2) conducted a fetal fibronectin test ("FFN"), which determines whether there is an increased risk that a patient will go into premature labor in the next 7 to 10 days; and (3) placed Carpio on a "fetal monitor to determine whether or not [she] was having contraction[s] and whether or not the changes that were occurring in the cervix were due to preterm labor." (Tr. 247:19-248:16 (Dr. Finkelstein testimony).)
It is unlikely that Labor and Delivery would have placed a cerclage in Carpio's cervix because a cerclage "does not fix anything other than an incompetent cervix" and, as stated above, Carpio most likely did not have an incompetent cervix. (Tr. 252:16-17 (Dr. Finkelstein testimony). Accordingly, if a cerclage had been placed, Carpio "still would have gone into preterm labor on October 15, at which point you would have had a situation where you had a cerclage with someone in labor which would have required either an immediate C-section or removal of the cerclage; otherwise it's going to rip." (Tr. 249:4-251:21 (Dr. Finkelstein testimony).)
The evidence presented at trial demonstrates that Carpio has a history of missing medical appointments. She admits that she (1) missed a "fair number of appointments" at the LFHC, including several neurology appointments (Tr. 156:22-157:12); (2) failed to follow-up with her physician about a previous thyroid condition (Tr. 157:5-12); and (3) while pregnant with M.V., missed her first prenatal appointment, which was scheduled with a high-risk OB/GYN doctor (Tr. 156:12-21). In addition, Carpio was non-compliant with M.V.'s doctor's appointments after M.V. was born. (Tr. 93:19-95:13 (Dr. Luciani testimony).)
Under the FTCA, a plaintiff may recover for "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." 28 U.S.C. § 1346(b)(1). Liability is determined based on the "law of the place where the act or omission occurred." M.;
"[T]o establish a claim of medical malpractice under New York law, a plaintiff must prove (1) that the defendant breached the standard of care in the community, and (2) that the breach proximately caused the plaintiff's injuries."
With respect to the standard of care, a physician must exercise "that reasonable degree of learning and skill that is ordinarily possessed by physicians and surgeons in the locality where he practices."
With respect to the proximate cause element, a plaintiff must establish that the defendant's breach was a "substantial contributing factor" in causing plaintiff's injury.
The parties agree that the LFHC staff provided appropriate medical care to Carpio up until and including Carpio's sonogram on October 4, 2012. (
Dr. Luciani testified that when a patient has a clinical condition that presents an "emergency," the standard of care requires that the healthcare provider immediately convey the seriousness of the medical problem to the patient and ensure that the patient understands the seriousness of the situation and the consequences of lack of action. (Tr. 59:21-60:13; Tr. 60:14-61:12.) If a patient does not respond to the medical provider's communications appropriately, the standard of care requires that the medical provider send a registered letter to the patient, explaining the medical problem. (Tr. 60:14-61:12.)
Dr. Luciani concluded that the standard of care was not met by the LFHC staff because, in his opinion, Carpio "was never informed of the seriousness of the problem that she had or the consequences of not addressing that problem." (Tr. 65:2-66:5) He testified that there is not a single notation in the record that indicates that Carpio understood the nature of the problem. (Tr. 61:13-25.) In his opinion, Nassr's conversation with Carpio on October 5, 2012, did not meet the standard of care because Nassr did not indicate why Carpio had to come back to the clinic: "There was no urgency of this phone call that, look, this is an emergency, you need to get here, your baby's life is in jeopardy." (Tr. 66:6-19.) He testified that although Nassr had no formal medical training, she could nonetheless have conveyed the seriousness of the problem to Carpio. (Tr. 66:20-67:3.) Dr. Luciani explained that the staff at his private practice routinely advise patients if there is something serious concerning their medical condition. (Tr. 67:4-12.)
Conversely, Dr. Finkelstein testified that when a patient who requires follow-up medical care leaves a healthcare provider's premises without having spoken to someone about the need for follow-up care, a clinic meets the standard of care when it (1) communicates with the patient directly, informing her of the need for further care; and (2) obtains the patient's agreement or understanding that follow-up care is necessary (Tr. 241:16-242:23). It need not be a doctor that contacts the patient. (Tr. 242:7-8.)
Dr. Finkelstein concluded that Nassr met the standard of care when she spoke to Carpio on October 5, 2012, and advised Carpio that she needed to come back to the clinic for further testing. (Tr. 242:9-23; Tr. 245:2-11.) It was not a departure from the generally accepted standard of care, Dr. Finkelstein testified, that Nassr did not provide Carpio with the results of her sonogram on their October 5, 2012, call. (Tr. 243:8-244:7.) Nothing in the ACOG guidelines dictates that not providing sonogram results during a telephone call would be a departure from the generally accepted standard of care. (Tr. 244:19-245:1.) He further explained:
(Tr. 243:15-21.)
Finally, Dr. Finkelstein testified that sending a certified letter with medical information to a patient with whom you have been able to make direct contact is not considered the standard of care. (Tr. 246:5-247:7.) Nothing in the ACOG, state, or federal guidelines or any hospital policy that he had seen indicates that healthcare providers should send detailed medical information in a registered letter to a patient. (Tr. 246:5-247:1.) Moreover, he stated, it is always preferable to speak to the patient directly, rather than send the patient a letter, because with a conversation, the healthcare provider will hear the patient's response and know that the patient understands the need to follow the clinic's instructions. (Tr. 247:2-7.)
The court adopts Dr. Finkelstein's definition of the generally accepted standard of care, as it is based on objective guidelines, including those promulgated by ACOG. By contrast, Dr. Luciani's opinions were based solely on his own experience practicing in obstetrics and gynecology. (Tr. 84:13-89:7.) Dr. Luciani was unable to point to ACOG guidelines, or any other set of guidelines, that supported his opinion. (
Plaintiff has failed to establish by a preponderance of the evidence that the LFHC staff breached the standard of care. Rather, the court finds that the standard of care was met when Nassr spoke with Carpio directly on October 5, 2012. Nassr told Carpio that she needed to go to Labor and Delivery that same day for further testing, and Carpio agreed to do so.
Plaintiff has failed to put forth any evidence to support the possibility advanced by Plaintiffs counsel that Carpio spoke with Nassr on October 5, 2012, but Carpio failed to understand the urgency of the message. (
Furthermore, the court is unpersuaded by Plaintiffs expert Dr. Luciani's testimony that Nassr should have informed Carpio of her abnormal sonogram findings on their call or told Carpio that her baby's life was in danger. (
Finally, the court finds that Dr. Luciani's testimony that the LFHC should have sent a certified letter with the sonogram findings to Carpio is inconsistent with the standard of care. The court credits Dr. Finkelstein's testimony that nothing in the ACOG, state, or federal guidelines or any hospital policy that he has ever seen indicates that healthcare providers should send detailed medical information in a registered letter to a patient. (Tr. 246:5-247:1.) Moreover, as Defendant points out, a certified letter "likely would not have even . . . reached Ms. Carpio, who was not living at the address of record that she had provided to the LFHC." (Def. Prop. Findings at 35.) Besides it is highly unlikely that a letter from the LFHC would have persuaded Carpio to return to the clinic for further testing when a telephone call from Nassr, informing that she needed to return to the client that day, did not motivate her to return. (
Even if the LFHC had breached the standard of care, which it did not, Plaintiff has failed to prove that the LFHC's alleged breach was a "substantial contributing factor" in causing M.V.'s premature birth.
Furthermore, even if Carpio had returned to the clinic as instructed, there is no evidence that M.V.'s premature birth could have been prevented by placing a cerclage in Carpio's cervix, as Plaintiff suggests. (
Even accepting as true Dr. Luciani's conclusion that Carpio had an incompetent cervix, both experts agree that the next step in Carpio's medical treatment was further testing. (
In sum, Plaintiff has failed to meet her burden of proving that the LFHC breached the standard of care or that any breach proximately caused M.V.'s premature birth.
For the foregoing reasons, the court fmds that the United States is not liable to Plaintiff under the FTCA. Accordingly, the damages portion of this proceeding is moot. The Clerk of Court is respectfully DIRECTED to enter judgment in favor of the United States and close the case.
SO ORDERED.
