Opinion
04 Civ. 9540 (RPP).
April 2, 2007
OPINION AND ORDER
On December 6, 2004, Plaintiffs, David Fan by his mother Zu Hua Chen, and Zu Hua Chen, individually, brought a medical malpractice action against the United States of America under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2671 et seq, and the Federally Supported Health Centers Assistance Act ("FSHCAA"), 42 U.S.C. § 233(g). The Complaint seeks damages for brain and other physical injuries suffered by David Fan as a result of his premature birth due to negligent prenatal care administered at the federally supported Charles B. Wang Community Health Center, Inc. ("CWC").
On December 14, 2005, after the close of discovery, the Government filed a memorandum moving for dismissal for lack of subject matter jurisdiction or, in the alternative, for summary judgment on the grounds that: (1) the alleged negligent physician was an employee of New York University Downtown Hospital ("NYU") and cannot be deemed an employee of the federal government under the FTCA or the FSHCAA; and (2) the government is protected by the FTCA's discretionary function exception in CWC's decision not to supervise the physician alleged to have committed malpractice. Plaintiffs submitted a responsive memorandum of law on March 14, 2006. The Government filed a reply memorandum on April 5, 2006, which further argues that Plaintiffs' claims should be dismissed since they are covered by the general release Plaintiffs entered into with NYU in a previous settlement. On April 20, 2006, the Court received an undated Sur-Reply Declaration of Carmen Fernandez Goldman with exhibits A through E ("Goldman Sur-Reply Decl.").
The Government's Memorandum of Law was supported by: 1) Declaration of Pierre Armand dated December 14, 2005 with Exhibits A-M ("Armand Decl."); 2) Declaration of Jane T. Eng dated December 14, 2005 with Exhibits A-C ("Eng Decl."), including a letter dated January 9, 2003 from Department of Health and Human Services deeming CWC a federal employee for the purposes of malpractice liability protection under the FTCA, (Eng Decl. Ex. A); a Memorandum of Understanding ("MOU") dated January 1, 1990 between Chinatown Action for Progress, Inc. and New York Infirmary/Beekman Downtown Hospital, (id. Ex. B); and an Amendment to the MOU dated March 7, 2000 entered into by CWC and NYU, (id. Ex. C); 3) Declaration of Rebecca Sze dated December 14, 2005 with Exhibits A-B ("Sze Decl."), including a complete copy of Ms. Chen's medical records from CWC, (Sze Decl. Ex. A), and CWC's Signature Verification Record, (id. Ex. B).
Plaintiffs' Memorandum of Law was supported by a Declaration of Carmen Fernandez Goldman dated March 10, 2006 with Exhibits A-J ("Goldman Decl.") including: Affidavit in Opposition of Zu Hua Chen dated March 10, 2006 ("Chen Aff."), (Goldman Decl. Ex. A); Deposition of Zuhua Chen, June 22, 2005, (id. Ex. B); Letter of Plaintiffs' expert Joseph Finkelstein, M.D. dated June 27, 2005 ("Finkelstein Letter"), (id. Ex. C); Affidavit in Opposition of Joseph Finkelstein, M.D. dated March 9, 2006 ("Finkelstein Aff."), (id. Ex. D); Affidavit of Marra Stankus Francis, M.D. dated March 9, 2006 ("Stankus Francis Aff."), (id. Ex. E); and Deposition of Jane Eng dated August 10, 2005, (id. Ex. F).
The Government's reply was supported by: 1) Reply Declaration of Pierre G. Armand dated April 5, 2006 ("Armand Reply Decl."), including a General Release signed April 8, 2005 between Plaintiffs and NYU, (Armand Reply Decl. Ex. B); 2) Reply Declaration of Jane Eng dated March 30, 2006 ("Eng Reply Decl."), Reply Declaration of Rebecca Sze dated March 29, 2006 ("Sze Reply Decl."); Declaration of Dr. Marra Stankus Francis dated April 4, 2006 ("Stankus Francis Decl."); and Declaration of Dr. Martina M. Frandina dated April 5, 2006 ("Frandina Decl.").
Plaintiffs litigated a separate action in the Eastern District of New York against NYU arising from the same general factual situation, which was settled for 2.4 million dollars. (Armand Decl. Ex. E.)
For the reasons following, Plaintiffs' claims are dismissed.
I. STANDARD OF REVIEW
"On a motion invoking sovereign immunity to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving by a preponderance of evidence that jurisdiction exists."Chayoon v. Chao, 355 F.3d 141, 143 (2d Cir. 2004) (citations omitted).
Under Rule 56 of the Federal Rules of Civil Procedure, "summary judgment is appropriate where there exists no genuine issue of material fact and, based on the undisputed facts, the moving party is entitled to judgment as a matter of law." Salahuddin Goord, 467 F.3d 263, 272 (2d Cir. 2006) (citations omitted). Where, as here, the nonmovant bears the burden of proof at trial, the movant may show prima facie entitlement to summary judgment in one of two ways: (1) the movant may point to evidence that negates its opponent's claims or (2) the movant may identify those portions of its opponent's evidence that demonstrate the absence of a genuine issue of material fact, a tactic that requires identifying evidentiary insufficiency and not simply denying the opponent's pleadings. If the movant makes this showing in either manner, the burden shifts to the nonmovant to point to record evidence creating a genuine issue of material fact. Like the movant, the nonmovant cannot rest on allegations in the pleadings and must point to specific evidence in the record to carry its burden on summary judgment.
Id. at 272-73 (citations omitted).
On a motion for summary judgment, "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. . . . [T]he adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed R. Civ. P. 56(e).
II. BACKGROUND
A. Local Civil Rule 56.1 Statements
Local Civil Rule 56.1 provides:
(a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends
there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
(b) The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried.
(c) Each numbered paragraph in the statement of material facts set forth in the statement required to be served on the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.
(d) Each statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e).
Local Civ. R. 56.1.
Instead of providing "a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party," Local Civ. R. 56.1(b), Plaintiffs provided a separately numbered list of material facts that do not correspond to those of the Government. (Pls' Statement Pursuant to Local Civ. R. 56.1 ("Pls' 56.1 Statement").) Accordingly, under Local Civil Rule 56.1(c) the Government's stated facts may be deemed admitted for the purposes of this motion for summary judgment. Despite the restriction of Local Civil Rule 56.1 the Court has determined to take cognizance of those portions of the Plaintiffs' 56.1 Statement which appear to state evidence controverting the Defendant's Statement Pursuant to Local Civ. R. 56.1 ("Def's 56.1 Statement"). Restated below are the facts from Defendant's 56.1 Statement together with controverting facts from Plaintiffs' 56.1 Statement.
1. [CWC] is a federally supported community health center with offices located at 268 Canal Street and 125 Walker Street in Manhattan, and at 136-26 37th Avenue in Flushing, Queens. See Declaration of Jane Eng ("Eng Decl."), ¶ 2. [CWC's] mission is, among other things, to be a leader in providing high-quality, affordable, and culturally competent health-care to underserved Asian Americans in New York City. Id. The majority of [CWC's] clients are low income, uninsured or under insured Asian immigrants. Id. [CWC], previously named Chinatown Action for Progress, has been eligible for malpractice liability protection under the FTCA and [FSHCAA] since June 23, 1996. Id., Ex. A.
(Def s 56.1 Statement ¶ 1.) No contradictory evidence submitted by Plaintiffs.
2. [CWC's] Women's Health Department offers gynecological, prenatal and postnatal care. See Declaration of Rebecca Sze ("Sze Decl."), ¶ 3. Plaintiff Zuhua Chen received prenatal care at [CWC's] 268 Canal Street office from May 28, 2002 through November 5, 2002. Id. Chen delivered the infant plaintiff, David Fan, at NYU Downtown Hospital ("NYU"), located at 170 William Street in Manhattan, on November 6, 2002. Id.
(Def's 56.1 Statement ¶ 2.) No contradictory evidence submitted by Plaintiffs.
3. During 2002, [CWC] had a contractual relationship with NYU, pursuant to which NYU physicians provided prenatal care on [CWC's] premises to patients who chose to deliver at NYU, such as Chen. Eng Decl. ¶ 3.
(Def's 56.1 Statement ¶ 3.) No contradictory evidence submitted by Plaintiffs.
4. On or about January 1, 1990, [CWC] entered into a Memorandum of Understanding with NYU (the "MOU"), pursuant to which NYU agreed to send Obstretrical/Gynecological ("OB/Gyn") physicians to [CWC] periodically to provide prenatal care to [CWC] patients who would be delivering at NYU. See Eng Decl., Ex. A (MOU at 3, Terms of Agreement § I, ¶¶ 1-3).
(Def's 56.1 Statement ¶ 4.) No contradictory evidence submitted by Plaintiffs.
5. [CWC] and NYU executed an Amendment to the MOU in 2000 that automatically extended the MOU from year to year except in the event of cancellation by either party. Eng Decl., Ex. C (Amendment to MOU at 1). The MOU was still in effect through 2002 when Chen delivered the infant plaintiff. Id. ¶ 6.
(Def's 56.1 Statement ¶ 5.) No contradictory evidence submitted by Plaintiffs.
6. Specifically, the parties established in the MOU a minimum number of sessions that two Ob-Gyn physicians, one attending and one resident, would conduct at [CWC]:
The Department of Obstetrics and Gynecology of [NYU] will conduct a minimum of four three hour sessions per week or two half-days per week at [CWC]. There will be an attending physician and a resident assigned to the sessions. Second and third year residents from [NYU] under the direction of the fourth year resident and the general obstetrical staff at NYU will make the initial evaluation and confirmation of pregnancy during the first visit and will conduct follow up prenatal visits.
Id.
(Def s 56.1 Statement ¶ 6.) No contradictory evidence submitted by Plaintiffs.
7. The MOU did not create an employer-employee relationship between [CWC] and NYU's physicians, but rather states:
Nothing herein shall be deemed to create a joint venture among the parties or to create an relationship or agreement among the parties except as otherwise specifically stated herein. Neither party shall use the name of the other in any manner which would imply or suggest a joint venture or a relationship other than that specified herein without the express written consent of the other party. Nothing herein shall be deemed to affect the independent existence of the parties or their ability to enter into other agreements concerning similar subject matters with any person, firm or organization.
Eng Decl. ¶ 6, Ex. A (MOU at 1, ¶ 5).
(Def's 56.1 Statement ¶ 7.) No contradictory evidence submitted by Plaintiffs.
8. Furthermore, NYU expressly warranted in the MOU that it was "covered by malpractice self-insurance and that its participating medical personnel [were] personally covered by malpractice insurance." Id. ¶ 6.
(Def's 56.1 Statement ¶ 8.) No contradictory evidence submitted by Plaintiffs.
9. [CWC] did not treat the NYU physicians who periodically conducted sessions at [CWC] as [CWC] employees. Eng Decl. ¶ 9; Sze Decl. ¶ 6. For example, [CWC] did not control whether or when any particular NYU physician would see patients at [CWC]. Id. Other than agreeing in the MOU to the minimum number sessions that NYU would conduct, [CWC] was not involved in scheduling the sessions. Id.
(Def's 56.1 Statement ¶ 9.) In paragraphs 10-13 of their Rule 56.1 statement, Plaintiffs provided evidence in opposition to the Government's position that CWC did not treat the NYU physicians as employees:
10. As part of her work at CWC, Dr. Stankus had to punch a time clock, her photograph was posted on a bulletin board at CWC, she was directed to attend administrative meetings held by CWC and run by Rebecca Sze, the managing director of CWC. It was Ms. Sze who instituted the time clock procedure. (See Stankus Affidvait ¶¶ 5 and 6.)
11. During her work at CWC Stankus only saw CWC patients, she used CWC equipment, CWC examination rooms, worked according to CWC's patient schedule, utilized CWC's medical charts and patient records and was assisted by interpreters provided by CWC (See Stankus Affidavit ¶ 6.)
12. Dr. Stankus was told by the staff of CWC to be productive and her time would be billed by CWC. Dr. Stankus never saw patients from CWC privately nor at any other location. The appointments for CWC patients were made by the CWC staff. While at the clinic Dr. Stankus reported to the managing director, Rebecca Sze. (See Stankus Affidavit ¶¶ 7 and 8.)
13. a) Each visit by plaintiff Zu Hua Chen to CWC, she was told by a Chinese speaking staff member at the Charles Wang Community Health Center that the doctors or residents who treated her were doctors who worked for the Charles Wang Community Health Center;
b) The pictures of all the doctors and residents were on a bulletin board at CWC which stated "These are your doctors;"
. . .
g) The doctor who [saw plaintiff] Zu Hua Chen on November 5, 2002, advised her through the interpreter that she worked for the Charles Wang Community Health Center.
(See Chen Affidavit ¶ 12.)
Rebecca Sze, a licensed family nurse practitioner, was the Director of Women's Health at CWC. (Sze Decl. ¶ 1.) The Stankus Francis Affidavit does not say Sze directed Stankus Francis to attend the meetings.
Contrary to Plaintiffs' representation, there is no evidence in the Stankus Francis Affidavit that "[i]t was Ms. Sze who instituted the time clock procedure."
The Stankus Francis Affidavit does not state she "was told by the staff of CWC to be productive." Instead, it states "the administrative staff at [CWC] stressed productivity." (Stankus Francis Aff. ¶ 7.)
The Stankus Francis Affidavit limits this assertion by appending the limiting phrase "for pre-natal care." (Stankus Francis Aff. ¶ 8.)
The Stankus Francis Affidavit does not state that Dr. Stankus Francis "reported to the Managing Director Rebecca Sze"; rather, it only states that Rebecca Sze was the Managing Director of CWC. (Stankus Francis Aff. ¶ 5.)
(Pls' 56.1 Statement ¶¶ 10-13.)
Returning to the Government's Rule 56.1 Statement:
10. Similarly, aside from agreeing in the MOU that NYU would send one attending physician and one resident physician, [CWC] was not involved in selecting the NYU physicians for the sessions. [Eng Decl. ¶ 9; Sze Decl. ¶ 6.] NYU made all of these decisions exclusively. Id. An NYU administrator would periodically telephone Rebecca Sze, the Director of Women's Health at [CWC], to notify [CWC] of the dates and times that NYU's sessions would take place. Sze Decl. ¶ 6. [CWC] could not modify this schedule. Id. Nor did [CWC] receive advance notice of which NYU physicians would be conducting the sessions. Id.
(Def's 56.1 Statement ¶ 10.) No contradictory evidence submitted by Plaintiffs.
11. Moreover, [CWC] did not pay NYU physicians any compensation or provide them with any employment benefits. Eng Decl. ¶ 10; Sze Decl. ¶ 7. Unlike [CWC] employees, the NYU physicians were not issued time cards and did not punch a time clock. Id. [CWC] did not evaluate the work of the NYU physicians, conduct progress reviews, or otherwise assess their performance. Id. Nor did [CWC] require NYU physicians to attend [CWC] staff meetings. Id.
(Def's 56.1 Statement ¶ 11.)
Plaintiffs provide that "[a]s part of her work at CWC, Dr. Stankus had to punch a time clock . . ., [and] she was directed to attend administrative meetings held by CWC and run by Rebecca Sze, the managing director of CWC. It was Ms. Sze who instituted the time clock procedure. (See Stankus [Francis] Affidvait ¶¶ 5 and 6.)" (Pls' 56.1 Statement ¶ 10.)
12. The NYU physicians also did not report to any [CWC] physician or other [CWC] personnel. Eng Decl. ¶ 11; Sze Decl. ¶ 8. [CWC] physicians did not, and were not authorized to, manage, supervise, inspect or approve the medical care that NYU resident physicians administered during the sessions at [CWC]. Id. The MOU required NYU to staff the sessions at [CWC] with an attending physician who was responsible for supervising residents. Id.
Contra supra notes 6, 9.
(Def's 56.1 Statement ¶ 12.) In response, Plaintiffs submitted that "[w]hile at the clinic Dr. Stankus reported to the managing director, Rebecca Sze. (See Stankus [Francis] Affidavit ¶¶ 7 and 8.)" (See Pls' 56.1 Statement ¶ 12.)
13. [CWC] afforded the NYU physicians two examination rooms for their exclusive use during their sessions — one for the attending physician and one for the resident physician. Sze Decl. ¶ 8. The examination rooms were next to each other, facilitating the attending physician's supervision of the resident. Id. NYU residents were not permitted to see patients unless the attending physician was physically present at [CWC]. Id.
Contra supra note 9.
(Def's 56.1 Statement ¶ 13.) In response, Plaintiffs submit that "[a]t CWC [Ms.] Chen was seen by a resident named Dr. Marra Stankus . . . [and c]ritically, during this entire visit no attending physician was present to [supervise resident physician] Dr. Stankus as required by law. (See Chen Affidavit ¶¶ 8 and 9, see Finkelstein Affidavit ¶¶ 11 and 12.)" (Pls' 56.1 Statement ¶ 9; see id. ¶¶ 13(e), 14.) Ms. Chen further asserted that, during this November 5, 2002 visit, "[a]t no time during the 20 minutes or so that she saw this female Caucasian doctor with light hair did the doctor leave the room, consult with any other doctors, or make any phone calls to anyone to consult with." (Id. ¶ 13(e).)
Neither Ms. Chen nor Dr. Finkelstein, an expert witness, state on personal knowledge that the treating physician was Dr. Marra Stankus Francis. Ms. Chen stated that her attorneys informed her that the resident physician Dr. Stankus Francis treated her at CWC. (Chen Aff. ¶ 9.) Ms. Chen's affidavit states that Ms. Chen read the affidavit, that it had been translated from English to Cantonese for her, and that she understood the content of the affidavit. (Id. ¶ 14.)
14. Although the MOU states that the "overall medical component" of the program was "under the direction of Stanley Zinberg, M.D., Chief of [NYU's] OB/GYN [Department] in association with the Medical Director of [CWC]," [CWC's] medical director was never required to supervise any of the specific medical care that the NYU physicians provided during their sessions at [CWC]. Eng Decl. ¶ 12. Indeed, the Medical Director in 2002, Dr. Alan Tso, practices internal medicine and is not an Ob-Gyn. Id.
(Def's 56.1 Statement ¶ 14.) No contradictory evidence submitted by Plaintiffs.
15. With the exception of one prenatal visit relatively early in Chen's pregnancy, Chen's prenatal care was provided exclusively by NYU physicians. Sze Decl. ¶ 4. Chen's medical records indicate that she saw two NYU physicians, Dr. Marra Stankus and Dr. Christina Kong, at [CWC] on six occasions from May 28, 2002 to November 5, 2002: May 28, 2002; July 11, 2002; July 22, 2002; September 17, 2002; October 8, 2002; and November 5, 2002. Id. ¶ 5. Chen also had two ultrasounds performed at NYU in August and September of 2002. See Deposition of Zuhua Chen ("Chen Dep."), 53:22-54:11. In addition, Chen was treated at NYU on November 3, 2002 for complaints of vaginal bleeding and back pain. Id. 75:19-77:22.
(Def's 56.1 Statement ¶ 15.) No contradictory evidence submitted by Plaintiffs.
16. According to Chen's medical records, the only [CWC] physician who ever provided any medical care to Chen was Dr. Amy Lai on Chen's August 17, 2002 visit to [CWC]. Sze Decl. ¶ 9. Dr. Lai testified at her deposition that Chen's gestation during this visit was seventeen weeks and three days, that Chen had "no physical complaints," that an ultrasound was performed, and that a positive fetal heart rate was found. See Deposition of Dr. Amy Lai, 43:2-7, 49:14-51:6.
(Def's 56.1 Statement ¶ 16.) No contradictory evidence submitted by Plaintiffs.
17. Plaintiffs do not claim any negligence arising from this August 17, 2002 visit; rather they claim that the allegedly negligent medical care occurred on Chen's November 5, 2002 visit to [CWC]. Plaintiff's expert, Dr. Joseph Finkelstein, asserts that Chen's prenatal visits to [CWC] prior to November 5, 2002 were "uncomplicated." Armand Decl. Ex. B (June 27, 2005 Finkelstein Letter, at 1). Similarly, Chen testified at her deposition that she did not have any problems with her pregnancy until October 28, 2002, when she started experiencing vaginal bleeding and back pain. Chen Dep. 43:4-8, 56:16-57:1.
(Def's 56.1 Statement ¶ 17.) No contradictory evidence submitted by Plaintiffs.
18. According to Chen, on October 28, 2002, she saw one small spot of blood in her underwear and experienced back pain. Chen Dep. 56:20-58:23. Chen testified that on October 30, 2002, after finding another small spot of blood and experiencing greater back pain, she telephoned [CWC] and advised an unidentified woman of her condition. Id. 61:25-64:14. Chen did not know whether the woman to whom she spoke was a nurse or a doctor. Id. 64:14-65:3. Chen claims that the woman said that the bleeding may have been caused by the baby hitting her kidney, and that she should go to NYU immediately if she saw blood coming out profusely or if her water broke. Id. 65:19-66:3.
(Def's 56.1 Statement ¶ 18.) No contradictory evidence submitted by Plaintiffs.
19. Chen then went to NYU on November 3, 2002, after noticing blood in the toilet after urinating. Id. at 75:19-77:22. According to Dr. Finkelstein, Chen was examined by NYU physicians who treated her for a urinary tract infection and discharged her:
Mrs. Chen was placed on a monitor at 11:20 am and was observed on the monitor for approximately three and one half hours. At the emergency room the contractions were 4 to 5 minutes apart. On examination she was noted to be 2 cm dilated and 50% effaced. Mrs. Chen was treated for a urinary tract infection and discharged on Bactrim DS by [NYU physicians].
Armand Decl. Ex. B (June 27, 2005 Finkelstein Letter at 1-2).
(Def's 56.1 Statement ¶ 19.) No contradictory evidence submitted by Plaintiffs.
20. Chen went to [CWC] on November 5, 2002 for a previously scheduled prenatal visit. Chen Dep. 92:9-16. Chen's medical records indicate that she was seen by Dr. Marra Stankus. Sze Decl. ¶ 10. Dr. Stankus was one of the NYU physicians that conducted sessions pursuant to the MOU. Eng. Decl. ¶ 13; Sze Decl. ¶ 10-11. [CWC] did not enter into any contract with Dr. Stankus. Eng Decl. ¶ 13. [CWC] does not possess records indicating whether Dr. Stankus was an attending or a resident physician at NYU. Sze Decl. ¶ 10. During Chen's November 5, 2002 session, Dr. Stankus ordered a sonogram for November 8, 2002, scheduled a follow up visit for two weeks later, and sent Chen home with instructions to rest and go to the hospital if her water broke. Armand Decl. Ex. B (June 27, 2005 Finkelstein Letter at 1-2).
(Def's 56.1 Statement ¶ 20.) No contradictory evidence submitted by Plaintiffs.
21. Plaintiffs assert that the medical care that Chen received from Dr. Stankus on November 5, 2002 was negligent because Chen returned to NYU in active labor the following day, where the infant plaintiff was born prematurely after an emergency c-section operation. Id. Specifically, Dr. Finkelstein opines that Dr. Stankus negligently failed to perform a vaginal exam and monitor Chen's contractions:
After review of the medical records, it is my opinion within a reasonable degree of medical certainty that the care received by Zu Hua Chen on November 5, 2002 at the Charles Wang Community Health Center was below an acceptable standard of care. The Center failed to recognize the signs and symptoms of premature labor. The departures included not properly monitoring Mrs. Chen on November 5, 2002 and not performing a vaginal examination to detect cervical changes. It is my opinion with a reasonable degree of medical certainty that had Mrs. Chen been monitored and a vaginal examination been performed that the diagnosis of premature labor, more probable than not, would have been made. Had the diagnosis been made in a timely fashion on November 5, 2002 then Zu Hua Chen could have been admitted for tocolysis and the unborn child could have been treated with steroids to enhance lung maturity and decrease the probability of an intra-cranial bleed.
Armand Decl. Ex. B (June 27, 2005 Finkelstein Letter at 2-3).
(Def's 56.1 Statement ¶ 21.) No contradictory evidence submitted by Plaintiffs.
22. Dr. Finkelstein has further opined that [CWC] negligently failed to supervise Dr. Stankus. Specifically, Finkelstein contends that Jane Eng, the Director of [CWC], testified that "Dr. Stankus was a resident while working at [CWC]" and that "there were no attending obstetrical physicians present at [CWC] to supervise the resident, Dr. [Stankus], while seeing patient at the health center." Armand Decl. Ex. C (August 25, 2005 Finkelstein Letter at 1).
(Def's 56.1 Statement ¶ 22.) No contradictory evidence submitted by Plaintiffs.
23. [Dr. Finkelstein's letter] mischaracterize[es] Eng's testimony. Although Eng testified that Dr. Stankus was an NYU physician, she stated that she did not know whether Dr. Stankus was a resident or attending physician. See Deposition of Jane T. Eng ("Eng Dep."), 24:24-25:7 (Q. Do you know if [Dr. Stankus] was a resident? A. I don't know. Q. Do you know if she was an attending doctor? A. I don't know."); see also Deposition of Rebecca Sze ("Sze Dep."), 40:9-16 (Q. Do you know what Dr. Stankus's position was, if any, with New York Downtown Hospital in 2002? A. NYU Downtown OB-GYN Department would be the practice to ask.").
(Def's 56.1 Statement ¶ 23.) No contradictory evidence submitted by Plaintiffs.
24. Similarly, while Eng testified that [CWC] does not employ attending physicians, because it is not a hospital, Eng Dep. 7:22-8:7, she stated that NYU attending physicians were required to supervise their resident physicians:
Q. Were are there any attendings that supervised the doctors that worked at the Charles B. Wang Center back in November of 2002?
A. There were no attendings employed by the Charles B. Wang Community Health Center. NYU Downtown had attendings who they sent as part of their program, as part of their contract to us to the health center.
Eng. Dep. 16:23-17:13 (emphasis added); see also Sze Dep. 59:6-18 ("Q. Just so I am clear, whenever a resident from [NYU] examined a patient within [CWC], an attending physician from NYU was also in [CWC] at the same time, is that my understanding of what you are saying? A. That's what the instruction given by the NYU OB-GYN Downtown and their arrangement too. Q. Are you aware of any circumstances where a resident examined a patient at [CWC] and the attending physician from NYU was not present? A. No."); id. 60:22-61[:]4 ("They — NYU Downtown OB-GYN Department arrange the resident and the attending to be there at [CWC] physically, so, you know, when the resident come before he or she see patients they communicate with each other and then she or he report to the attending who is there already.").
(Def's 56.1 Statement ¶ 24.) The same facts Plaintiffs submitted that oppose paragraph 13 of Defendant's Rule 56.1 statement above are relevant here. (See Pls' 56.1 Statement ¶¶ 9, 13-14, 21.)
25. On or about February 26, 2003, plaintiffs sued NYU in New York State Supreme Court, Kings County, arising from the same facts at issue in this case. See Armand Decl., Ex. D (initial complaint). On or about April 13, 2004, after NYU filed a third-party complaint against [CWC], the United States removed the case to the U.S. District Court for the Eastern District of New York ("EDNY") pursuant to 42 U.S.C. § 233(c) and 28 U.S.C. § 2679(d). Id. ¶ 5.
(Def's 56.1 Statement ¶ 25.) No contradictory evidence submitted by Plaintiffs.
26. On April 1, 2005, EDNY Chief Judge Edward R. Korman issued a Memorandum Order approving a July 28, 2004 Stipulation of Settlement between plaintiffs and NYU. Id., Ex. E. Chief Judge Korman further ordered NYU to pay $2.4 million plus interest into a qualified settlement fund pending further orders regarding the use of the funds and the determination of counsel fees. Id. Chief Judge Korman had previously removed Goldman Goldman as counsel for the infant plaintiff, appointed a guardian ad litem, and established a qualified settlement fund, due to concerns about the adequacy of the representation provided by the Goldman firm, as well as the truthfulness of its claims for attorneys' fees. See Armand Dec., Exs. F-I.
The last sentence is not considered for purposes of this opinion.
(Def's 56.1 Statement ¶ 26.) No contradictory evidence submitted by Plaintiffs.
As part of their statement pursuant to Local Civil Rule 56.1, Plaintiffs provide additional facts to supplement those in the Government's Rule 56.1 statement.
3. Plaintiff Zu Hua Chen came under the care of CWC for her pregnancy with infant plaintiff on May 16, 2002. (See Chen Affidavit ¶ 5.)
. . .
13. . . .
c) Plaintiff Zu Hua Chen always saw (and this included November 5, 2002) a resident-doctor with a nurse or medical assistant at the Charles Wang Community Health Center in an examination area in the obstetrics, prenatal department;
d) On November 5, 2002 at the Charles Wang Community Health Center, plaintiff Zu Hua Chen was a Medicaid patient. Medicaid was billed for each and every visit that she was seen at the Charles Wang Community Health Center;
. . .
f) As I previously stated, Dr. Stankus (on November 5, 2002) never performed any internal (or external) vaginal or pelvic exam;
. . .
(See Chen Affidavit ¶ 12.)
14. During her November 5th visit with Dr. Stankus no other physician was present and no one was supervising Dr. Stankus. (See Chen Affidavit ¶¶ 8 and 9; see also Finkelstein Affidavit ¶¶ 11 and 12.)
. . .
19. As a result of his severe prematurity David Fan suffered extensive brain damage, respiratory distress with organ failure, necrotizing enterocolitis with multiple bowel surgeries and biliary atresia (See medicals Exhibit J to Declaration of Carmen Fernandez Goldman, (See Finkelstein Affidavit ¶ 8.)
20. The treatment rendered to Mrs. Chen on November 5, 2002 was not in accordance with accepted medical practice. (See Finkelstein Affidavit ¶¶ 9 through 15.)
21. CWC failed to recognize the signs and symptoms of premature labor. CWC failed to properly monitor Mrs. Chen, failed to perform a vaginal examination to detect vaginal changes. At the time of Mrs. Chen's examination, Dr. Stankus was a resident. There were no attending obstetrical physicians or staff obstetrical physicians present at CWC to supervise Dr. Stankus as required by Medicaid guidelines and by law. (See 10 NYCRR405.4CE.) The failure to supervise Dr. Stankus was a departure from accepted practice. (See Finkelstein Affidavit ¶¶ 9 through 15 and Memorandum of Law.)
22. If Mrs. Chen had been monitored and a vaginal exam performed, had Dr. Stankus been supervised by an attending physician, the departure discussed would not have occurred. (See Finkelstein Affidavit ¶¶ 9 through 15.)
See supra note 12.
(Pls' 56.1 Statement.)
B. Identity of Treating Physician
Although a central fact to the case, the Government did not discover the identity of the physician who treated Ms. Chen at CWC on November 5, 2002 until after close of discovery. The evidence from discovery consisted of Ms. Chen's physical description of the doctor as a Caucasian woman with light blondish hair, (Chen Aff. ¶ 8), the handwriting in notes taken during the clinical examination, (Sze Decl. Ex. A), the signed initials on the notes, (id. Ex. A at 35), and CWC's Signature Verification Record containing the names and signed initials of physicians, (id. Ex. B). The Government initially stated during discovery that Rebecca Sze, a licensed nurse practitioner and Director of Women's Health at CWC, concluded — based on a comparison between the Signature Verification Record and the initials on Ms. Chen's chart for November 5 — that the treating doctor was Marra Stankus, an NYU resident physician working at CWC pursuant to the MOU. (See Letter of Pierre Armand dated April 20, 2006; Goldman Sur-Reply Decl. (citing Defendant's responses to interrogatories and statements during depositions that identify Dr. Stankus as the treating physician).) In late 2004, Plaintiffs' counsel, however had located and interviewed Dr. Stankus, then an ob/gyn physician living in Texas as Marra Stankus Francis. In March 2006, Plaintiffs' counsel contacted Dr. Stankus Francis and obtained a signed affidavit from her. (Stankus Francis Decl. ¶ 11.) Prior thereto, on June 28, 2005, Plaintiffs' counsel sent a notice of deposition and judicial subpoena to Dr. Marra Stankus c/o Beekman Downtown Hospital and notified defense counsel on July 20, 2005 that Dr. Stankus had not responded. On July 27, 2005, Plaintiffs' counsel notified the Court that she had learned approximately a week and a half earlier that Dr. Stankus, who "may have treated" Ms. Chen was no longer at NYU and may actually be working and residing in Texas, and asked for an extension of time to depose the nurse or midwife who treated Ms. Chen on November 5, 2002. (Letter of Carmen Fernandez Goldman to Court dated July 27, 2005.) The Stankus Francis Affidavit related to Dr. Stankus Francis' general responsibilities at CWC including the scope of her employment; by it, Plaintiffs seek to raise a genuine issue of material fact as to whether Dr. Stankus Francis was a CWC "employee" under the FTCA. The affidavit did not allude to any treatment of Ms. Chen. (See Stankus Francis Aff.)
Plaintiffs' counsel contends that Dr. Stankus Francis is mistaken about the date since Mr. Belmont, the investigator who initially contacted Dr. Stankus Francis, did not become involved in the case until July 2005. (Goldman Sur-Reply Decl. 2, n. 1.)
On or around March 16, 2006, after Plaintiffs filed on March 14, 2006 their response to the Government's motion — which included the Stankus Francis Affidavit — the Government contacted Dr. Stankus Francis. (Stankus Francis Decl. ¶ 15.) On April 4, 2006, Dr. Stankus Francis provided the Government with a declaration. In her declaration, Dr. Stankus Francis stated that after review of a copy of Ms. Chen's medical records she had determined she had never treated Ms. Chen. (Id. ¶ 15.) Instead, Dr. Stankus Francis identified the initials as possibly those of Dr. Martina Frandina, an NYU attending physician who also worked at CWC. (Id. ¶ 16). Dr. Stankus Francis states that in late 2004, she received a series of calls from Plaintiffs' investigator, Mr. Belmont, who misled her by saying he was an investigative attorney retained to determine if NYU employees had been mistaken for CWC employees for billing purposes. (Id. ¶ 2.) Dr. Stankus Francis told the investigator that she had always been supervised by an NYU attending physician while at CWC. (Id. ¶ 7.) With its reply papers, the Government also provided Plaintiffs' counsel with a declaration from Dr. Frandina, in which Dr. Frandina admits to have written and signed her initials on the treatment notes for Ms. Chen on November 5, 2002 while working as an attending Obstretician/Gynecologist for NYU Downtown Hospital at CWC. (Frandina Decl. ¶ 1.)
The Government also submitted a reply declaration by CWC Director of Women's Health and licensed nurse practitioner Rebecca Sze, in which Ms. Sze admits that her December 14, 2005 declaration erroneously identified Dr. Stankus as the treating physician. (Sze Reply Decl. ¶ 2.)
Given the materiality of this new information, on April 12, 2006, the Court granted Plaintiffs one week to submit a sur-reply solely "as to the issue of Dr. Frandina's treatment of plaintiff." (Order, Apr. 12, 2006.) On April 19, 2006, Plaintiffs submitted a sur-reply declaration by Carmen Fernandez Goldman stating that the Government should be precluded from offering any evidence of Dr. Frandina's involvement in the case due to its willful failure to disclose her as a witness and by failing to set forth her identity in providing answers to interrogatories and in discovery. In response, the Government submitted two letters, on April 20 and 21, which argued that the Government is not subject to equitable estoppel since it did not affirmatively mislead Plaintiffs as to the identity of the treating physician. (Letters of Pierre G. Armand dated Apr. 20 and 21, 2006.) On April 21, Plaintiffs replied to the Government's letters with an additional letter arguing as an initial matter that the Government's letters should be disregarded since they were outside the briefing schedule, but that if the letters were considered, that Dr. Frandina's affidavit should not be considered by the Court since it is "too little too late," and in any case impeaches the Government's own witnesses. (Letter of Carmen Fernandez Goldman dated April 21, 2006.) At oral argument, held on August 25, 2006, Plaintiffs made no request to contact or depose Dr. Frandina, nor, at any time, have they made a request to reopen discovery.
The Government cites Heckler v. Community Health Serv., 467 U.S. 51, 60 (1984) and INS v. Miranda, 459 U.S. 14, 17 (1982), to establish correctly that a party seeking to equitably estop the Government must show that there has been "affirmative misconduct" by the government. The Court's review of the record shows Plaintiffs were not misled. First, in corresponding with the Court, Plaintiffs' counsel wrote: "During the course of discovery, my office learned that Dr. Marra Stankus, may have treated Mrs. Chen at [CWC] on November 5, 2002." (emphasis added) (Letter of Carmen Fernandez Goldman dated July 27, 2006.) Second, the Government's identification of Dr. Stankus Francis stated it was solely based on a comparison of the initials on Ms. Chen's medical records of November 5, 2002 with CWC's Signature Verification Record. (Sze Decl. ¶ 10.)
III DISCUSSION
The Government asserts two theories to support its motion that this Court does not have subject matter jurisdiction: (1) the FTCA's limited waiver of sovereign immunity does not cover Plaintiffs' claims since the alleged tortfeasor was not an employee or contractor of CWC; and (2) Plaintiffs' claim that CWC failed to supervise the treating physician is barred by the FTCA's discretionary function exception. Additionally, the Government argues it should be awarded summary judgment on the ground that the General Release signed by Plaintiffs in settling their case against NYU in the Eastern District of New York also covers the alleged tortfeasors in this case.
In response, Plaintiffs argue that (1) the treating physician was a CWC employee for purposes of the FTCA; (2) the discretionary function exception is inapplicable to a "failure to supervise" claim since Ms. Chen was treated on November 5, 2002 by a resident physician acting without an attending obstetrical physician present to supervise as required by Medicare guidelines and by law, specifically N.Y. COMP. CODES R. REGS. tit. 10, § 405.4(f) (1998); and (3) that the General Release of NYU does not cover the relevant events in this case.
A. The FTCA Is a Limited Waiver of Sovereign Immunity
Section 1346 of Title 28 of the United States Code states "subject to the provisions of chapter 171 of this title, the 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).
Chapter 171 of Title 28 (§§ 1346(b), 2671 et seq) contains the provisions of the FTCA.
"The FTCA is a limited waiver of sovereign immunity making the Federal government liable to the same extent as a private employee for certain torts of `employees' acting within the scope of their employment." United States v. Orleans, 425 U.S. 807, 813 (1976). At the same time as it offers the liability of the United States to compensate victims of certain torts, the FTCA also provides:
The remedy against the United States for . . . personal injury . . . arising or resulting from the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment is exclusive of any other civil action or proceeding for money damages . . . against the employee whose act or omission gave rise to the claim. . . . Any other civil action or proceeding for money damages arising out of or relating to the same subject matter against the employee . . . is precluded. . . .28 U.S.C. § 2679(b)(1) (emphasis added). Accordingly, the FTCA only permits federal liability for tort claims based on the negligence or wrongful acts or omissions to act of employees of the government who are acting within the scope of their employment.
B. The FTCA is the Exclusive Remedy for Medical Malpractice Claims against Employees of the Public Health Service
The remedy against the Unites States provided by sections 1346(b) and 2672 of Title 28 [FTCA provisions] . . . for damage for personal injury . . . resulting from the performance of medical, surgical . . . or related functions . . . by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee . . . whose act or omission gave rise to the claim.42 U.S.C. § 233(a). Section 233 contains a provision that deems certain employees and contractors employees of the Public Health Service:
[S]ubject to the approval by the Secretary [of Health and Human Services] an entity receiving Federal funds under [ 42 U.S.C. § 254b] and any officer, governing board member, or employee of such an entity, and any contractor of such an entity who is a physician or other licensed or certified health care practitioner . . . shall be deemed to be an employee of the Public Health Service. . . .42 U.S.C. § 233(g)(1)(A) and (4). During the relevant time period in this case, November 2002, CWC was "an entity receiving Federal funds" as described in 42 U.S.C. § 233(g)(1)(A). (See Eng Decl. Ex. A.)
42 U.S.C. § 233(g)(5) provides that for purposes of § 233(g)(1) "an individual may be considered a contractor of an entity described in [§ 233(g)(4)] only if — (A) the individual normally performs on average at least 32 1/2 hours of service per week for the entity . . .; or (B) in the case of an individual who normally performs an average of less than 32 1/2 hours of services per week for the entity . . ., the individual is a licensed or certified provider of services in the fields of family practice, general internal medicine, general pediatrics, or obstetrics and gynecology." 42 U.S.C. § 233(g)(5).
The exhibit is a letter from the Department of Human Health and Services deeming CWC "to be an employee of the Federal Government . . . for the purposes of malpractice liability protection under the [FTCA]."
Since Plaintiffs are claiming relief for physical damage suffered by David Chen due to the alleged medical malpractice of Dr. Stankus Francis as an alleged employee of the Public Health Service, the FTCA is the exclusive remedy. See 42 U.S.C. § 233(a). In order for this Court to have subject matter jurisdiction over Plaintiffs' claims, the physician who allegedly committed malpractice when treating Ms. Chen on November 5, 2002 must have been either (1) an employee of CWC or (2) a contractor with CWC who is a physician or other licensed or certified health care practitioner. 42 U.S.C. § 233(g).
Under the plain language of § 233(g)(1)(A), the term "contractor of such an entity who is a physician" is limited to individual physicians who contract with the entity. None of the potential NYU employees who provided health care to Ms. Chen at CWC — such as Dr. Stankus Francis and Dr. Frandina — fit this description since there is no evidence any of them contracted individually with CWC. See Dedrick v. Youngblood, 200 F.3d 744, 746 (11th Cir. 2000) (holding that there is no federal liability for medical services of a physician who treated patients while physician was employed by legal entity that contracted with federally funded entity because there was no direct contractual relationship between the federally funded entity and the physician); Alexander v. Mt. Sinai Hosp. Med. Ctr., 165 F. Supp. 2d 768, 772 (N.D. Ill. 2001) (holding that a physician providing services to a federally funded health center "under a contract he himself signed on behalf of an eponymous professional corporation he founded and of which he is the sole shareholder and employee" was a qualified contractor under 42 U.S.C. § 233(g)); see also El Rio Santa Cruz Neighborhood Health Ctr., Inc. v. HHS, 396 F.3d 1265, 1278-79 (D.C. Cir. 2005) (Henderson, J., concurring) (citing Dedrick and Alexander).
"[A] waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign." Department of the Army v. Blue Fox, Inc., 525 U.S. 255, 261 (1999).
Accordingly, the only remaining issue is whether the treating physician is an employee of CWC.
"For purposes of the FTCA, the common law of torts and agency defines the distinction between an independent contractor (for whose torts the Government is not responsible) and an employee, servant or agent (for whose torts the Government is responsible)." B A Marine Co. v. American Foreign Shipping Co., 23 F.3d 709, 713 (2d Cir. 1994); see Logue v. United States, 412 U.S. 521, 526-27 (1973) (noting that the FTCA does not provide government liability of the wrongful act or omission of an independent contractor). "A critical element in distinguishing an agency from a contractor is the power of the Federal Government `to control the detailed physical performance of the contractor.'" United States v. Orleans, 425 U.S. 807, 814 (1976) (quoting Logue, 412 U.S. at 528); see B A Marine Co., 23 F.3d at 713.
"The circuits have consistently held that physicians either in private practice or associated with an organization under contract to provide medical services to facilities operated by the federal government are independent contractors, and not employees of the government for FTCA purposes." Robb v. United States, 80 F.3d 884, 890 (4th Cir. 1996); see, e.g., Leone, 910 F.2d at 50-51 (holding that private physicians designated by the FAA as Aviation Medical Examiners ("AMEs") are not employees of the federal government for purposes of the FTCA where the "FAA act[ed] generally as an overseer, [but did] not manage the details of an AME's work or supervise him in his daily duties . . . entail[ing] on-site review or day-to-day management"); Lurch v. United States, 719 F.2d 333 (10th Cir. 1983) (holding that a neurosurgeon employed by a medical school was not an employee of the federal government under the FTCA when the neurosurgeon was working at a federal health center pursuant to a contract between the medical school and the federal health center, and where in the contract the medical school retained the power to determine which of its doctors would fulfill the school's contractual obligations).
In this case, the facts do not support a finding that the treating physician — whether an attending or resident physician — was an employee of the CWC. First, both Dr. Stankus Francis and Dr. Frandina were employees of NYU. (Stankus Francis Decl. ¶¶ 1, 3; Frandina Decl. ¶ 1.) Second, contrary to paragraph 12 of Plaintiffs' 56.1 Statement, Dr. Stankus did not state in her affidavit that she reported to Rebecca Sze at CWC. Third, the MOU did not explicitly or implicitly create an employer-employee relationship between CWC and NYU's physicians. To the contrary, the MOU explicitly states that "[n]othing herein shall be deemed to create a joint venture among the parties . . . [or] affect the independent existence of the parties or their ability to enter into other agreements concerning similar subject matters with any person, firm or organization." (Eng Decl. Ex. B at 1.) Also, NYU explicitly warranted that all attending and resident physicians it provided would be covered by NYU's malpractice insurance. (Eng Decl. Ex. B at 3.) Furthermore, analogous to the factual situation in Lurch, 719 F.2d at 338, the MOU does not grant CWC any control over which doctors would be sent by NYU to the clinic each day. (Def's 56.1 Statement ¶¶ 9-10; Eng Decl. Ex. B at 1.) Lastly, CWC did not directly compensate the doctors, but instead compensated NYU under the MOU. (Eng Decl. Ex. B at 4.)
Notwithstanding the contractual terms of the MOU, Plaintiffs support their position that the NYU physicians were CWC employees with the following factual assertions: 1) Ms. Chen was told by the doctor who treated her on November 5, 2002, through an interpreter, that the doctor worked for CWC, (Chen Aff. ¶ 12); 2) Dr. Stankus punched timecards while at CWC, (Stankus Francis Aff. ¶ 5); 3) Dr. Stankus was directed to attend CWC administrative meetings run by the Managing Director, Rebecca Sze, (id. ¶ 5); 4) the residents "saw [CWC] patients only, used their equipment, used their examination rooms, worked around their patient schedule, used the [CWC's] charts and patient records and were assisted by the interpreters provided by [CWC]," (id. ¶ 6); 5) "all appointments made for the patients to be seen by [NYU] residents . . . were made by the [CWC] staff," (id.); and 6) all the resident physicians' pictures were posted on a bulletin board at CWC, (Chen Aff. ¶ 12; Stankus Francis Aff. ¶ 5).
These facts taken as true, considered with the MOU's provisions, are insufficient to show that CWC had the power to control the detailed physical performance of the NYU physicians — or that CWC supervised the physicians' day-to-day medical work — to the extent to render the physicians CWC "employees" under 42 U.S.C. § 233(g) for purposes of the FTCA. While Plaintiffs' factual assertions demonstrate that Dr. Stankus Francis complied with some CWC administrative requirements, such as punching time clocks and attending administrative meetings, none of these facts show that CWC in any way controlled the medical treatment of patients by NYU physicians. See B A Marine Co., 23 F.3d at 713 ("Courts have found it indicative of an agency relationship if the Government enjoys the "power `to control the detailed physical performance of the contractor,'" or if the Government in fact supervises the "day-to-day operations."") (citations omitted).
C. Plaintiffs' Negligent Supervision Claim is Barred by the FTCA's Discretionary Function Exception
The Government argues, on alternative grounds, that to the extent Plaintiffs are claiming CWC negligently supervised Ms. Chen's treating physician on November 5, 2002, any such claim is barred by the FTCA's discretionary function exception, 28 U.S.C. § 2680(a). Plaintiffs respond that the discretionary function exception does not extend to the instant case, and in any event, that CWC had a nondelegatable duty as a health provider to supervise medical personnel, especially resident physicians, and that if the resident physicians had been properly supervised, the premature birth could have been averted. (Mem. in Opp. at 9-10;see Finkelstein Aff. ¶ 12.) Plaintiffs cite no cases to support their first contention. With respect to the second contention, Plaintiffs contend that CWC violated a New York State law, N.Y. COMP. CODES R. REGS. tit. 10, § 405.4(f)(2)(i-v)(a-b) (1998), by failing to supervise the NYU resident physicians working on CWC's premises. (Mem. in Opp. 8.)
This regulation states:
(f) Postgraduate trainees. Patient care services may be provided by physicians in postgraduate training programs . . . only if the following conditions are met:
. . .
(2) the medical staff shall review the licensure, education, training, physical and mental capacity, and experience of individuals in approved postgraduate medical training programs in relation to the patient care services to be provided by such individuals in such training programs where such individuals do not otherwise have active medical staff privileges.
(i) such individuals may provide patient care services only as part of a training program accredited by the Accreditation Council for Graduate Medical Education or American Osteopathic Association, or an equivalent training program approved by the State Education Department;
(ii) the medical staff shall, based on written criteria, recommend privileges that are specific to treatments/procedures for each individual in such program prior to delivery of patient care services;
(iii) the medical staff shall develop and implement written policies and procedures which set forth a clear set of principles governing medical practice by postgraduate trainees, including guidelines on circumstances requiring supervision and consultation;
(iv) postgraduate trainee privileges, regardless of whether the individual is full-time, parttime, or rotating status, shall be modified based upon written criteria and individual review and approval of each trainee;
(v) the specific treatments/procedures that each individual is authorized to perform shall be stated in writing and that authorization shall specify:
( a) those treatments/procedures that may be performed under the general control and supervision of the patient's attending physician or another physician credentialed to provide the specific treatment/procedures; and
( b) those that may only be performed under direct visual supervision of the patient's attending physician or another physician credentialed to provide the specific treatment/procedures. . . .
N.Y. COMP. CODES R. REGS. tit. 10, § 405.4 (1998).
1. The Discretionary Function Exception
The FTCA's discretionary function exception "marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." United States v. S.A. Empresa de Viacao Aerea Rio Grandense ("Varig Airlines"), 467 U.S. 797, 808 (1984). The discretionary function exemption is found in 28 U.S.C. § 2680(a):
The provisions of this chapter and section 1346(b) of this title shall not apply to —
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.28 U.S.C. § 2680. Accordingly, if the discretionary function exception applies, the jurisdictional grant of § 1346(b) to the district courts is inapplicable and Plaintiffs' claim must be dismissed for lack of subject matter jurisdiction.
To determine whether the discretionary function exception applies, a two-prong test is administered. The first prong asks whether the alleged conduct violated a mandatory federal law or whether it involved "an element of judgment or choice; in other words, was the conduct discretionary?" United States v. Gaubert, 499 U.S. 315, 324-25 (1991). If the conduct did violate a federal law, "there will be no shelter from liability because there is no room for choice and the action will be contrary to policy." Id. Otherwise, the inquiry continues to the second prong, which asks whether "the action challenged . . . involve[d] the permissible exercise of policy judgment." Berkovitz v. United States, 486 U.S. 531, 537 (1963) (framing the question as "whether that judgment is of the kind that the discretionary function exception was designed to shield"); see also Dalehite v. United States, 346 U.S. 15, 35-36 (1953). "When established governmental policy, as expressed or implied by statute, regulation, or agency guidelines, allows a Government agent to exercise discretion, it must be presumed that the agent's acts are grounded in policy when exercising that discretion." Gaubert, 499 U.S. at 324.
2. CWC Had Discretion to Contract for Ob/Gyn Services and Supervision Through the MOU
It is not disputed that CWC is a federally supported community health center, which has been deemed an employee of the federal government eligible for malpractice liability protection under the FTCA and FSHCAA since 1996. (Def's 56.1 Statement ¶ 1.) Under the FSHCAA, 42 U.S.C. § 254b(a), the term "health center" is defined as "an entity that serves a population that is medically underserved, . . . by providing, either through the staff and supporting resources of the center or through contracts or cooperative arrangements — (A) required primary health services. . . ." 42 U.S.C. § 254b(a).
"Primary health services" are defined to include "health services related to . . . obstetrics, or gynecology [including prenatal care] that are furnished by physicians. . . ." 42 U.S.C. § 254b(b)(1)(A) (emphasis added). Thus, under § 254b(a) of the FSHCAA, CWC has the discretion to provide obstetrical and gynecological services including prenatal care furnished by physicians "through contracts or cooperative agreements." CWC exercised this discretion pursuant to the MOU with NYU. See Varig Airlines, 467 U.S. 797, 819-20 (1984); Carter v. United States, No. 96 Civ. 9139, 1998 WL 744009 at *4 (S.D.N.Y. Oct. 26, 1998) (noting that "[c]ourts have repeatedly held that the selection and supervision of contractors is a discretionary function"). Through the MOU, (see Eng Decl. Ex. B ¶ 6), CWC made the policy decision — as permitted under 42 U.S.C. 254b(b)(1)(A) for health centers — to contract out gynecological and obstetrical services and prenatal care as well as supervision of those services to NYU. Gaubert, 499 U.S. at 324.
Plaintiffs' reliance on N.Y. COMP. CODES R. REGS. tit. 10, § 405.4(f) to overcome the Government's discretionary function argument is misplaced. First, although § 405.4(f) is applicable to CWC as a New York public health center, it was within CWC's discretion pursuant to 42 U.S.C. § 254b to contract with NYU under the MOU so that NYU was responsible for gynecological, obstetrical, and prenatal care by physicians and the supervision of that care. Plaintiffs' claim that CWC was negligent in supervising Ms. Chen's treating physician is barred by 28 U.S.C. § 2680(a), and the Government's motion for dismissal for lack of subject matter jurisdiction is granted.
Lastly, even if the Court were incorrect in its conclusion that the discretionary function exception applies to CWC's alleged failure to supervise Ms. Chen's treatment by an NYU resident physician, Plaintiffs' case founders on another ground. In their reply papers, Defendants supplied evidence that Dr. Stankus Francis, the resident physician, did not treat Ms. Chen on November 5, 2002, (Stankus Francis Decl. ¶ 15), and that Dr. Frandina, an attending physician accredited to provide gynecological and obstetrical services, was Ms. Chen's treating physician on November 5, 2002, (Frandina Decl. ¶ 1).
The Court provided Plaintiffs with a week to investigate this development. In their sur-reply papers, Plaintiffs did not dispute that Dr. Frandina was Plaintiffs' treating physician on November 5, 2002, nor have Plaintiffs made an application to depose Dr. Frandina or Dr. Stankus Francis at any time.
D. Plaintiffs' General Release
The Government also moves for summary judgment on the grounds that the General Release Plaintiffs entered into with NYU on April 8, 2005 to settle the corresponding lawsuit in the Eastern District of New York covers Plaintiffs' claims in this case. (See Armand Reply Decl. Ex. B.) The General Release reads:
TO ALL WHOM THESE PRESENTS SHALL COME OR MAY CONCERN KNOW THAT ZUHUA CHEN, Mother and Natural Guardian of DAVID FAN, and ZUHUA CHEN, Individually, as RELEASOR, that in consideration of the sum of TWO MILLION FOUR HUNDRED THOUSAND DOLLARS ($2,400,000) received from NYU DOWNTOWN HOSPITAL, as RELEASEE, receipt whereof is hereby acknowledged, releases and discharges NYU DOWNTOWN HOSPITAL s/h/a MT. SINAI-NYU MEDICAL CENTER HEALTH SYSTEMS-NYU DOWNTOWN HOSPITAL, the RELEASEES, RELEASEES' heirs, executors, administrators, successors and assigns from all actions, causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, extents, executions, claims, and demands whatsoever, in law, admiralty or equity, which against the RELEASEES, the RELEASOR, RELEASOR's heirs, executors, administrators, successors, insureds, subrogors and assigns ever had, now have or hereafter can, shall or may, have for, upon, or by reason of any matter, cause or thing whatsoever from the beginning of the world to the day of the date of this RELEASE.
This RELEASE and settlement constitutes complete payment for all damages and injuries and is specifically intended to release the RELEASEES and is also specifically intended to release, whether presently known or unknown, all other tortfeasors liable or claimed to be liable jointly with the RELEASEES, and, whether presently known or unknown, all other potential or possible tortfeasors liable or claimed to be liable jointly with the RELEASEES.
(Id.) Plaintiffs take the position that the General Release does not apply in this case because it was limited to "deviations which took place at Beekman Downtown Hospital, and not at [CWC]." (Goldman Sur-Reply Decl. ¶ 11.)
A plain reading of the General Release leads to the conclusion that CWC is covered under the terms of the release. The "[release] and settlement . . . is . . . specifically intended to release, whether presently known or unknown, all other tortfeasors liable or claimed to be liable jointly with the [releasees]."
IV. CONCLUSION
For the foregoing reasons, the Government's motion to dismiss for lack of subject matter jurisdiction is GRANTED.
IT IS SO ORDERED.