M.V. et al v. United States of America

Filing 41

FINDINGS OF FACT AND CONCLUSIONS OF LAW, For the foregoing reasons, the court finds 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 by Judge Nicholas G. Garaufis on 4/17/2017. (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-X

M.V.,an infant by his mother and natural guardian
LORENA CARPIO,and LORENA CARPIO,

individually,

FINDINGS OF FACT AND
CONCLUSIONS OF LAW

Plaintiffs,

15-CV-597(NOG)
(VMS)

-againstTHE UNITED STATES OF AMERICA,
Defendant.
-X

NICHOLAS G. GARAUFIS,United States 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"),^ pursuant to the Federal Tort
Claims Act("FTCA"),28 U.S.C. §§ 1346(b), 2671 et seq. (Verif. Compl.11 (Dkt. 5).) Plaintiff
alleges that during the course of her obstetrical and gynecological care and treatment at the
Lutheran Family Health Center(the "LFHC"),a federally funded clinic, employees ofthe LFHC

Matemal Fetal Medicine("MFM")Unit committed medical malpractice.^ (Id.) Plaintiff avers
that this medical malpractice was the direct proximate cause of her premature labor and delivery
ofM.V. Oil 16.)

^ "A claim may properly be made on behalfof an infant for injuries allegedly sustained in utero or due to premature
birth attributed to defendants' malpractice in their prenatal care ofdie infant plaintiffs mother." Nieves v.
Montefiore Med. Ctr.. 760 N.Y.S.2d 419,421 (N.Y. App. Div. 2003)(citing Woods v. Lancet. 102 N.E.2d 691
(N.Y. 1951)). Carpio has withdrawn all claims pertaining to her, individually. (See Joint Pre-Trial Order(Dkt. 29)
at4(Stip. 8).)

^ The Federally Supported Health Centers Assistance Act, codified as 42 U.S.C. §§ 233(a)-(n), provides that claims
for medical malpractice brought against federally funded clinics and employees ofthose clinics must be brought
pursuant to the FTCA. Pursuant to that same statute, federally funded clinics and employees ofthose clinics are
considered employees ofthe United States.
1

On November 29 and 30, 2016,the court held a bench trial, limited to the issue of

liability.^ After considering the evidence at trial, and having reviewed the parties' post-trial
submissions, the court makes the following Findings of Fact and Conclusions ofLaw pursuant to
Federal Rule of Civil Procedure 52(a). For the reasons set forth below,the court finds that the
United States is not liable to Plaintiff under the FTCA.
I.

FINDINGS OF FACT

A. Background

In August 2012, Carpio was pregnant with a child, M.V.,fathered by her boyfiiend,

Christian Vela. (Bench Trial Tr.("Jr.")(Dkts. 38, 39)^ 123:21; Tr. 125:4-6.) Prior to her
pregnancy with M.V., Carpio had two pregnancies that ended in preterm deliveries.
(Tr. 146:7-15.) Both of her preterm deliveries were the result of a premature rupture of her
membranes. (Tr. 249:14-19.) Because of her history of preterm deliveries, Carpio knew that her
pregnancy with M.V. was a high-risk pregnancy. (Tr. 146:9-15.)

After learning she was pregnant with M.V., Caipio 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 April 12,2016,the parties jointly requested that the court bifurcate the trial ofthis matter into a liability phase
and a damages phase, with the liability phase to be tried first. (See Consent Mot. to Bifurcate Trial(Dkt. 18).) The
court granted the request on April 14,2016. (Order(Dkt. 19).)

^ The trial transcript is docketed as two separate documents. Transcript pages 1-188 can be found at Dkt. 38.
Transcript pages 189-299 can be found at Dkt. 39.

On September 27,2012, Carpio had a sonogram at the LFHC's MFM Unit.
(Tr. 129:24-130:1; PI. 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; PI. 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 ultrasoimd technician, in the MFM Unit. (Tr. 284:21-285:7; Tr. 280:23-24;
see PI. 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 Plaintiffs
cervix measured 1.4 centimeters (PI. 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 fiinneling ofthe cervix and the presence of amniotic fluid or "sludge." (PI. Ex. 1 at
CLMC 000146.)

At the conclusion ofthe sonogram, Serrano told Plaintiffto get dressed and wait in the

MFMUnifs 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 Plaintiffthat 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 Plaintiffto 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; see also
Tr. 169:10-15.)

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 ofthe MFM Unit,to contact Carpio by telephone and
advise her to go to Labor and Delivery. (Tr. 31:11-21.)
B. The LFHC's Follow-Up Communications With Carpio
For the reasons set forth infra in Section I.B.l., 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 ofthe 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;

Gov't Ex. B at CSP 000002.) After their

conversation, Nassr felt her task was complete and did not follow up with Carpio further.
(Tr. 2:1-9.)

Despite the fact that Carpio agreed to go to Labor and Delivery on October 5,2012, she
never actually returned to the clinic for further testing. (Tr. 240:14-241:15.) The next time
Carpio sought medical attention was on October 15,2012, when she gave birth to M.V.

prematurely at Kings County Hospital. (Tr. 145:6-20.) Notably, when Carpio presented at the
hospital on October 15,2012, she was having irregular contractions, was 2 centimeters dilated,
and 50 percent effaced. (Tr. 250:3-9.)
1. Credibilitv OfThe Witnesses

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 retum 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 finds that Nassr's testimony is credible and corroborated by
Nassr's contemporaneous notes of her telephone conversations(see Gov't Ex. B)and the AT&T

phone records for Vela's cell phone (see Gov't Ex. C; Tr. 292:23-294:20 (stipulation concerning
phone records).

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 intemally 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 intemally 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 xmcorrohorated. 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.^ (Tr. 140:19-22; Tr. 144:9-24; Tr. 145:6-16.) Carpio also testified
that Vela "never" told her that someone from the MFM Unit had called him and that the clinic

wanted her to return to Labor and Delivery. (Tr. 140:23-141:1; Tr. 144:20-24.) To assess the
veracity ofthis testimony, the court sought to ascertain where Carpio was living in

October 2012, explaining to Carpio that her living situation was relevant to whether she was with
Vela when he received the calls from the MFM Unit and also to whether Vela gave Carpio the

messages from the MFM Unit. (Tr. 139:9-140:14.) Carpio's testimony on this topic was
scattered, evasive, and unbelievable. She testified on direct examination that she was"back and
forth" between her mother's home and Vela's apartment and would have been living with either
Vela or her mother on October 4 and 5, 2012. (Tr. 136:12-137:20.) When asked by the court

how she would get her daughter Dynasty to school in Brooklyn from her mother's house in
Queens, Carpio testified that her father would drive her to Vela's house, which was within
walking distance of Dynasty's school,"in the middle ofthe night." (Tr. 136:24-137:12;
Tr. 142:24-143:15.) This story of middle-of-the-night shuffling is far-fetched, especially given
Carpio had a 10-year-old daughter during the time m question. fSee Tr. 135:14-16.) It also
contradicts Carpio's deposition testimony that she was living with Vela in October 2012.
(Tr. 149:25-151:1.) Overall, the credible evidence in this case points to the fact that Carpio was

^ Carpio testified at trial that she called the LFHC after giving birth to M.V. on October 15,2012(Tr. 145:6-16);
however,she testified at her deposition that she did not recall calling the LFHC after M.V.'s birth (Tr. 158:2-7).

living with Vela in October 2012. In view ofthe fact that Vela received several calls from the

LFHC,Vela and Carpio were living together, and Carpio's own testimony that Vela would come

home from work during the day,^ Carpio statement that Vela "never" told her that someone from
the MFM Unit had called and that the clinic wanted her to return to Labor and Delivery is not
credible.

C. Carpio Most Likely Did Not Have An Incompetent Cervix

The parties also dispute what caused Carpio to deliver M.V. prematurely. Plaintiff's

expert. Dr. Richard Luciani,^ testified that M.V. was bom prematurely because Carpio had an
incompetent cervix. (Tr. 67:13-68:4.) By contrast, Dr. Hoskins and Defendant's expert, Dr.

Joseph Finkelstein,^ testified that while Carpio's cervix was shortening, she did not have an
incompetent cervix. (See Tr. 223:16-23(Dr. Hoskins testifying that "there was no information
saying that the cervix was opening, it was only shortening"); Tr. 251:14-15(Dr. Finkelstein
testifying that Carpio "by history and by presentation... did not have an incompetent cervix");
cf. Tr. 249:20-23 (Dr. Finkelstein testifying that "there is a distinct difference between a

shortened cervix ...[and] an incompetent cervix").) The court finds that Carpio mostly likely
did not have an incompetent cervix.

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

^ Carpio testified that Vela comes home "several times" during the day. (Tr. 150:3-16.) In fact, Carpio testified that
on October 4,2012—^the day ofher second ultrasound—Vela picked her up from Dynasty's school in the aftemoon,
"took [Carpio] home," and ate before returning to work. (Tr. 135:24-4.)

' Luciani is a physician who operates a private practice specializing m obstetrics and gynecology.
Dr.
(Tr. 54:22-55:10.)

® Dr. Finkelstein is a board-certified physician in obstetrics and gynecology(Tr. 234:23-235:1)and member of
ACOG (Tr. 235:11-15).
8

cervix); see Tr. 74:22-25 (Dr. Luciani agreeing to this definition).) Caipio did not have a history

ofpremature delivery as a result of an incompetent cervix; rather, both of her preterm deliveries
were the result ofa premature rupture of her membranes. (Tr. 249:14-19(Dr. Finkelstein
testimony).) Moreover, when Carpio presented at the hospital on October 15, 2012,she was
having irregular contractions, was 2 centimeters dilated, and 50 percent effaced:"If a patient had
an incompetent cervix ... at a minimum she would have presented at 6, 8,9 centimeters dilated."
(Tr. 250:3-9(Dr. Finkelstein testimony).) In addition, Carpio was experiencing contractions
when she came to the hospital on October 15,2012(Tr. 105:22-106:5(Dr. Luciani testimony)),

which is inconsistent with having an incompetent cervix (see Tr. 223:3-15(Dr. Hoskins
testifying that generally a patient will not experience contractions if she has an incompetent
cervix)).

D. The Proper Course of Treatment Following Carpio's October 4,2012,Sonogram

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 m the next 7 to 10 days; and(3)placed Caipio 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 ofthe cerclage; otherwise it's going to rip." (Tr. 249:4-251:21 (Dr. Finkelstein
testimony).)
E. Carpio Has A History Of Non-Compliance With Medical Appointments

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 bom. (Tr. 93:19-95:13 (Dr. Luciani testimony).)
11.

CONCLUSIONS OF LAW

A. Legal Standard

Under the FTCA,a plaintiff may recover for "personal injury or death caused by the
negligent or wrongful act or omission of any employee ofthe 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 ofthe place where the act or omission occurred." Id.; see also Molzof v. United

States, 502 U.S. 301, 305(1992)("[T]he extent ofthe United States' liability under the FTCA is

10

generally determined by reference to state law.") Because the alleged malpractice occurred in
New York, New York law applies.

"[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 plaintiffs injuries." Milano by Milano v. Freed. 64 F.3d 91, 95
(2d Cir. 2005), Plaintiff must prove each element by a preponderance ofthe evidence. See
Metzen v. United States. 19 F.3d 795,807(2d Cir. 1994). Furthermore, New York law provides

that "'except as to matters within the ordinary experience and knowledge oflaymen,... expert

medical opinion is required' to make out both ofthese elements." Milano.64 F.3d at 95 (citing
Fiorev. Galang.478 N.E.2d 999, 1001 (1985)).

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." Nestorowich v. Ricotta, 767 N.E.2d 125,128(N.Y. 2002)(internal quotation marks
and citation omitted). "A doctor is charged with the duty to exercise due care, as measured
against the conduct of his or her own peers—^the reasonably prudent doctor standard." Id
With respect to the proximate cause element, a plaintiff must establish that the
defendant's breach was a "substantial contributing factor" in causing plaintiffs injury.

McDermott v. City of Watertown. 936 F.2d 677,679(2d Cir. 1991)fciting Kush v. City of
Buffalo. 449 N.E.2d 725,729(N.Y. 1983)). Where there are "several possible causes of an

injury, for one or more of which the defendant was not responsible, and it is just as reasonable
and probable that the injury was the result of one cause as the other, plaintiff cannot have a
recovery." Bernstein v. Citv ofN.Y.. 511 N.E.2d 52,53(N.Y. 1987)(citations omitted). A

11

plaintiff"need not prove, however,that the defendant's conduct was the sole cause" ofthe
injuries incurred. McDermott. 936 F.2d at 679.
B. Applicatioii
1. Expert Testimonv On The Standard Of Care

The parties agree that the LFHC staff provided appropriate medical care to Caipio up
until and including Carpio's sonogram on October 4,2012. (See Tr. 74:1-19.) They also agree
that because Carpio needed follow-up care after she left the LFHC on October 4,2012,the
LFHC had a responsibility to follow up with her. (See Tr. 76:7-10; Tr. 77:24-78:4;

Tr. 241:16-242:1.) The parties have different views as to (1) what the standard ofcare requires
in terms ofthe method and content offollow-up communications; and(2) whether the LFHC's

communications with Carpio after October 4,2012, met that standard. In this section,the court
summarizes the expert witnesses' testimony on these issues.

Dr. Luciani testified that when a patient has a clinical condition that presents an

"emergency,"the standard ofcare requires that the healthcare provider immediately convey the
seriousness ofthe medical problem to the patient and ensure that the patient xmderstands the
seriousness ofthe situation and the consequences oflack 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 ofthe seriousness ofthe 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 ofthe problem.

12

(Tr. 61:13-25.) In his opinion, Nassr's conversation with Carpib 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 ofthis 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 ofthe problem to

Carpio. (Tr, 66:20-67:3.) Dr. Luciani explained that the staff at his private practice routinely
advise patients ifthere 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 ofthe 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 ofcare 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:

Ifthe patient had stated to Arlene Nassr 'I'm not coming back,'
then it would have been the responsibility to have a medical
provider explain to the patient the need. But since the patient
understood -and she already knew from the prior sonogram on
13

9/27 that she had a problem situation that she needed to retum on
the 4th. This was not a surprise. This was not in a vacuum.
(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.)
2. The LFHC Met The Standard Of Care

The court adopts Dr. Finkelstein's definition ofthe 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. (Id.) Accordingly,the court concludes that
the standard of care requires a medical provider to:(1)communicate with the patient directly;(2)
inform the patient ofthe need for further care; and (3)obtain the patient's agreement or
understanding that follow-up care is necessary. fSee Tr. 241:16-242:23(Dr. Finkelstein
testimony).)

Plaintiff has failed to establish by a preponderance ofthe evidence that the LFHC staff
breached the standard of care. Rather, the court finds that the standard of care was met when

14

Nassr spoke with Carpio directly on October 5, 2012. Nassr told Caipio 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 ofthe message. CSee PI. Proposed Findings of Fact(Dkt. 38)

91,111,

123.) Carpio testified that she did not think there was any urgency to follow-up care after the
October 4, 2012,sonogram but, in view ofthe evidence,this is implausible. CSee Tr. 155:17-21.)
Carpio knew that she had a high-risk pregnancy. (Tr. 146:12-15.) She also admits that she was
told it was an "emergency" for her to come back to the clinic after her September 27,2012,
sonogram. (Tr. 129:24-130:12.) After her next sonogram on October 4,2012,she was told on

three separate occasions that she needed to wait at the clinic to speak with the doctor.
(Tr. 133:3-11; Tr. 134:21-135:13; Tr. 148:3-13; Tr. 155:11-13.) Nassr called Vela's cell phone
three times in a 16-hour period to instruct Carpio to return to the clinic. (Tr. 290:16-291:13;
Tr. 292:23-294:8; Tr. 295:2-4.) When Nassr spoke with Carpio on October 5,2012,Nassr told
Caipio that she needed to return to the clinic that same dav. (Tr. 41:2-9; Gov't Ex. B at

CSP 000002.) Based on these facts, Carpio's testimony that she "never [thought]... anything
[was] wrong" after her October 4,2012,sonogram is unconvincing. (Tr. 155:17-21.)
Furthermore,the court is unpersuaded by Plaintiff's 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. (See Tr. 66:6-19.) As an initial matter, it is

speculative to assume that"a differently-worded telephone conversation," as Defendant puts it,
"would have changed Carpio's decision to return." (See Def. Proposed Findings ofFact("Def.

Prop. Findings")(Dkt. 37)at 36.) This is especially true in light of her history of non-

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compliance with medical appointments. (See supra Section I.E.) Moreover,the court accepts

Dr. Finkelstein testimony that it would have been "highly inappropriate" for Nassr to discuss the
sonogram results with Carpio "because Nassr is not a medical[ly] trained person."

(Tr. 224:7-11.) Moreover, Dr. Finkelstein convincingly explained that he would not have
provided Carpio with a diagnosis prior to testing at Labor and Delivery. (Tr. 220:17-23.)
Finally, the court fmds 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 ofrecord 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 retum. (See id)
3. Plaintiff Failed To Prove Proximate Causation

Even if the LFHC had breached the standard ofcare, 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.

McDermott.936 F.2d at 679. In light of Carpio's history of non-

compliance with medical appointments, it is far from certain that Carpio would have returned to
the LFHC for further testing had she received additional medical information from Nassr on their
October 5,2012, call.

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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. (See Tr. 67:13-68:11; Tr. 69:3-13.) As stated above,the court finds that
Carpio mostly likely did not have an incompetent cervix. (See supra Section I.C.) The court
credits Dr. Finkelstein testimony that a cerclage "does not fix anything other than an incompetent
cervix." (Tr. 252:16-17.) Accordingly, even if a cerclage had been placed, Carpio likely "still
would have gone into preterm labor on October 15." (Tr. 249:4-251:21 (Dr. Finkelstein
testimony).)

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. (See
Tr. 64:3-20; 247:19-248:16.) Dr. Luciani concedes that placement of a cerclage would only have

been appropriate if further testing had revealed that Carpio did not have an infection in her

cervix. (Tr. 64:3-20.) Because it is impossible to know what such testing would have revealed,
there is no way to predict whether a cerclage would have been placed in Carpio's cervix and,

consequently, whether Carpio's premature labor could have been prevented by placement of a
cerclage.

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,
m.

CONCLUSION

For the foregoing reasons, the court finds that the United States is not liable to Plaintiff
under the FTCA. Accordingly,the damages portion ofthis proceeding is moot. The Clerk of

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Court is respectfully DIRECTED to enterjudgment in favor ofthe United States and close the
case.

SO ORDERED.

s/Nicholas G. Garaufis

Dated: Brooklyn,New York
April 11,2017

NICHOLAS G. GARAUHS
United States District Judge

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