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Rodriguez v. United States

United States District Court, Fifth Circuit

December 17, 2013

JESSICA RODRIGUEZ, et al., Plaintiffs,



On this day the Court considered Defendant's motion to dismiss (docket no. 10). For the following reasons, the Court GRANTS IN PART and DENIES IN PART the motion.

I. Background[1]

Plaintiffs Jessica and Scottie Rodriguez are the parents of E.R. On March 23, 2005, E.R. was born full term and delivered by a scheduled caesarian section at Wilford Hall Medical Center ("WHMC"). At the time of birth, the delivery room nurse noted that E.R. was "small for gestational age." Nevertheless, at 45 minutes of life, E.R's doctor ordered her admitted to the normal newborn nursery, noting that her condition was good. At both 3 and 12 hours of life, nursing evaluations were noted as "unremarkable" or "within normal limits." At 36 hours of life, E.R.'s vital signs were noted as within normal limits and E.R. continued "rooming in" with her mother.

On March 25, 2005, E.R.'s second day of life, her parents reported to the WHMC staff that E.R. had difficulty feeding throughout the night and that E.R. had experienced a period of sweating. Later that morning, E.R. was evaluated, and a suspicion of hypoglycemia was verified.[2] E.R. was immediately admitted to neonatal intensive care. She was approximately 45 hours old at the time of admittance. Over the next 10 hours, E.R. was evaluated for possible bacterial sepsis or a viral infection. During this time, she experienced marked fluctuations of blood glucose values. Intravenous control of her blood glucose values proved difficult and hydrocortisone was added to her treatment in an attempt to invoke a steroid hyperglycemia.

At 55 hours of life, E.R. manifested abnormal physical signs consistent with neonatal seizure activity. These signs included lip smacking, eye fluttering, and right-sided body posturing. A computerized tomogram of E.R.'s head at the time detected intracranial hemorrhaging.

Two days later, on March 27, 2005, Dr. Cody Henderson, WHMC Staff Neonatologist, discussed E.R.'s situation and treatment with Mr. and Ms. Rodriguez. His staff log records the parent meeting and notes, "concerns for poor feeding, murmur, hypoglycemia at >24 hours old, and subsequent seizures." Staff Progress Notes, Mot. to Dismiss, Ex. A. On March 29, 2005, a magnetic resonant image ("MRI") revealed marked changes in the brain that confirmed intracranial hemorrhaging and were consistent with brain injury secondary to profound neonatal hypoglycemia (i.e. hypoglycemic encephalopathy). On March 31, 2005, Dr. Leslie Van Schaak updated Mr. and Ms. Rodriguez on E.R.'s MRI results. These results confirmed E.R.'s brain injury. Medical Record Progress Note, Mot. to Dismiss, Ex. B.

The next day, April 1, 2005, Mr. and Ms. Rodriguez met with E.R.'s treating physicians. E.R.'s doctors explained to her parents that E.R. suffered a period of severe hypoglycemia, which caused occipital and parietal brain injury. Medical Record Progress Note, Mot. to Dismiss, Ex. C; Pediatric Clinic Family Conference Note, Mot to Dismiss, Ex. D. The doctors stated that the cause of E.R.'s hypoglycemia was unknown. Metabolic disease was not ruled out, although glycogen storage disease was an unlikely cause. Mr. and Ms. Rodriguez were advised to prepare for the possibility that E.R. could have permanent neurological dysfunction and developmental delays. The doctors stated that the extent of E.R.'s injury and the degree of recovery would only be known with time. Mr. and Ms. Rodriguez were given the opportunity to ask questions, which they did. Jessica Rodriguez Aff. at 1, Resp., Ex. A. The meeting lasted 90 minutes.

As a young child, E.R. experienced speech and developmental delays. When she was 15 months old, E.R. suffered debilitating seizures. During her early childhood, E.R. was taken to a succession of doctors. On January 8, 2007, Mr. and Ms. Rodriguez took E.R. to the Easter Seals Early Childhood Intervention Program. Ms. Rodriguez filled out E.R.'s intake form. Easter Seals Early Childhood Intervention Program Intake Form, Mot. to Dismiss, Ex. E. On this form she indicated that on the second day of E.R's life "she was not eating" and suffered seizures. Further, Ms. Rodriguez indicated that E.R. suffered brain damage. On February 20, 2007, Mr. and Ms. Rodriguez took E.R. to the WHMC Emergency Room. On the intake form, E.R.'s parents again indicated that E.R. suffered brain injury at birth. WHMC Emergency Dep't Physician Record, Mot. to Dismiss, Ex. F. Again, on April 9, 2007, Mr. and Ms. Rodriguez took E.R. to the hospital. The doctor's report from the visit noted that E.R. had a "[history] of epilepsy as a result of hypoxic brain injury at [day of life] 2." BAMC Pediatric Narrative Summ., Mot. to Dismiss, Ex. G. Presumably, E.R.'s parents provided the treating physician with E.R.'s medical history. A few months later, on July 17, 2007, E.R. again received medical attention. The doctor's report noted, "[p]arents state that E.R. became hypoglycemic on day two of life.... She has had a cranial MRI which her parents state has revealed some sort of abnormality." Chronological Record of Medical Care, Mot. to Dismiss, Ex. H. E.R. is now 8 years-old and believed to have permanent brain damage.

B. Procedural History

In 2011, Mr. and Ms. Rodriguez were advised by Ms. Rodriguez's brother to contact Mark Mueller, Plaintiffs' current counsel. Mr. and Ms. Rodriguez met with Mr. Muller, who had a purported expert review E.R.'s medical records. The purported expert determined that E.R.'s injuries were preventable had E.R. received better newborn care. Armed with this opinion, on November 24, 2011, Plaintiffs filed an administrative claim with the United States Air Force. On March 13, 2013, Plaintiffs' administrative claim was denied. Thereafter, on July 9, 2013, Plaintiffs filed their complaint with this Court.

By their complaint, Plaintiffs allege that the doctors and nurses at WHMC negligently provided, or omitted from providing, neonatal care to E.R. by failing to properly diagnose, monitor, and treat E.R. Specifically, Plaintiffs assert that the medical staff at WHMC negligently documented, or failed to document, E.R.'s small gestational size and E.R.'s difficulty feeding, and failed to timely and properly react to E.R.'s difficulty feeding. Plaintiffs assert a Federal Tort Claims Act ("FTCA") claim against Defendant United States of America for WHMC's staff's alleged negligence.

On September 10, 2013, Defendant filed a motion to dismiss pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, asserting that the Court lacks subject matter jurisdiction over the claims brought by Plaintiffs because the claims are barred by the FTCA's two-year limitations period. Defendant asserts that Plaintiffs' cause of action accrued on March 29, 2005, when an MRI of E.R.'s brain revealed damage. Since Plaintiffs waited until 2011 to bring their administrative claim, Defendant asserts that their suit is not timely and, therefore, the Court lacks ...

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