The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiffs Viviana Maldonado and Jorge Rodriguez allege that medical negligence during the May 7, 2004 delivery of their baby at Mt. Sinai Medical Center caused the baby's death. They brought suit in state court against six Defendants: Mt. Sinai; Access Community Health Network, a federally funded health network; Marlene Green, M.D., an employee of that network; the United States; and Ibraham Dogan, M.D., and Clara Lopez, R.N., both employees of Mt. Sinai. The case was removed to federal court and the United States was substituted as Defendant for Green and Access, who were dismissed from the case. (Order of Feb. 26, 2009.) Defendants Mt. Sinai, Dogan, and Lopez move for summary judgment on all claims against them. For the reasons that follow, their motion is granted as to the two claims against Mt. Sinai only, the two claims against Lopez and Mt. Sinai, and otherwise denied.
On the night of May 6, 2004, Maldonado arrived at Mt. Sinai in labor, accompanied by Rodriguez. (Maldonado Dep., at 12.) Maldonado's prenatal doctor, Lemuel Shaffer, was not at the hospital, so Dr. Green, who had never seen Maldonado before 2:00 a.m. on May 7, 2004, acted as attending physician. (Pls' Rule 56.1(b)(3)(a) ¶¶ 1-2.) Maldonado was also treated by Clara Lopez, a registered nurse, and by Dr. Dogan, a first-year resident and obstetrician certified in his native Turkey. (Id. ¶ 4.) When Maldonado arrived at the hospital, an electronic heart rate monitor was attached that showed a fetal heart rate characterized as "reassuring." (Id. ¶ 7.) A fetal heart rate is reassuring if the heart is beating at an average of between 120 and 160 beats per minute; if the variability-a measure of the deviation of the heart rate from the average-is between 6 and 25 beats per minute; and if there are accelerations (temporary increases) in the heart rate but no decelerations. (Id. ¶ 9.) If the heart rate does not meet those conditions, it is "nonreassuring" and cause for concern. (Id. ¶ 9.)
At 2:30 a.m. on May 7, 2004, Maldonado was given Pitocin on Dr. Dogan's orders. (Pls' Rule 56.1(b)(3)(a) ¶ 16.) Pitocin is the brand name of oxytocin, a drug used to induce labor. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1299, 1392 (29th ed. 2000). By 3:10 a.m., Maldonado's contraction rate increased above the normal level-in medical terms, the rate became tachysystolic-and the Pitocin was stopped at 3:20 a.m. (Id. ¶¶ 14, 17, 18.) Between 4:00 a.m. and 4:30 a.m., the fetal heart rate rose above the normal level-that is, it became tachycardic-indicating that the fetus was not getting enough oxygen. (Id. ¶ 18.) At 4:30 a.m., variable decelerations in the fetal heart rate began, indicating that the spinal cord was compressed and that the baby was not getting enough blood or oxygen. (Id. ¶ 19.) This pattern continued through 5:30 a.m. (Id. ¶ 20.) The doctors did not respond to the change in fetal heart rate until 5:25 a.m., when Dr. Dogan ordered Lopez to restart the Pitocin and Lopez did so. (Id. ¶ 21.) The fetal heart rate continued to decelerate, and Drs. Dogan and Green unsuccessfully attempted a vacuum-assisted delivery at 6:10 a.m. (Id. ¶¶ 22-23.) At 6:30 a.m., Dr. Green called for a Caesarean delivery and baby Stephanie Rodriguez was delivered by Caesarean at 7:06 a.m. (Id. ¶ 25.) The baby had no heartbeat, and a specialist failed to resuscitate her. (Srinivasan Dep., at 27-36.) The Certificate of Death states the time of death as 7:45 a.m. (Pls' Ex. 10.)
James Rice, a board certified obstetrician and gynecologist, provided expert testimony for Plaintiffs. According to Rice, Drs. Dogan and Green deviated from the reasonably accepted standard of care by failing to suspect that the baby was macrosomic or abnormally large. (Rule 26(a)(2) Disclosure of Rice, at 3.) Rice asserted that Dogan and Green should have realized that a successful vaginal delivery was unlikely based on the baby's advanced gestational age (40 weeks and 3 days), Maldonado's small size (5'1" tall with a "narrow pubic arch"), and her high weight gain (47 pounds). (Id., at 3-4.) Rice also stated that Dogan and Green failed to respond appropriately when the baby's fetal heart rate became nonreassuring by providing additional oxygen and changing the mother's position. Rice believes that the doctors should have ordered a Caesarean delivery at 4:45 a.m. (Id. at 4.) According to Rice, had a Caesarean delivery been performed any time before 5:25 a.m., the baby would have been delivered normally. (Id.) Instead of ordering a Caesarean delivery, the doctors restarted the oxytocin and attempted a vacuum-assisted delivery, both acts that, Rice contends, deviated from the standard of care. (Id. at 4-5.) Rice concluded that Dogan's and Green's deviations from the standard of care caused the baby's death. (Id. at 5.)
Charlotte Daniels, a registered nurse certified in, among other fields, electronic fetal monitoring, also provided expert testimony for Plaintiffs. She stated that Lopez deviated from the standard of care when she restarted the Pitocin on Dr. Dogan's orders at 5:25 a.m. (Pls' Rule 56.1(b)(3)(a) ¶ 36.) Lopez herself testified that she knew that restarting the Pitocin was a deviation from the standard of care, but she followed orders anyway. (Id. ¶ 21.) According to Daniels, Lopez should have known that restarting the Pitocin was dangerous and should have questioned Dr. Dogan's order. (Daniels Dep., at 107.) If Dogan had persisted, Daniels asserted, Lopez should have gone over his head and spoken to the supervising nurse-Daniels referred to that course of action as "going up the chain of command." (Id.) Again, Lopez agreed with Daniels's assessment of what she should have done. (Lopez Dep., at 94-97.) Daniels also stated that by 4:30 a.m., when the doctors had failed to respond to the baby's nonreassuring fetal pattern, Lopez should have alerted the supervising nurse. (Daniels Dep., at 138-40.)
Plaintiffs' complaint includes six claims: Claim One is for wrongful death and is brought against all Defendants except Lopez, Claim Two is a survival action also brought against all Defendants except Lopez, Claims Three and Four are a claim for wrongful death and a survival action brought against Mt. Sinai alone, and Claims Five and Six are a claim for wrongful death and a survival action brought against Lopez and Mt. Sinai.
The court first addresses the parties' motions to strike each others' statements of facts. Such motions are disfavored except when they serve to expedite the work of the court. RLJCS Enterprises, Inc. v. Professional Benefit Trust, Inc., 438 F. Supp. 2d 903, 906-07 (N.D. Ill. 2006). Defendants' primary argument in support of their motion to strike Plaintiffs' entire statement is that the statement does not comply with Local Rule 56.1(b)(3)(a) because it does not present facts that would defeat summary judgment. If Defendants are right, though, the court should simply grant their motion for summary judgment. Thus, Defendants' motion to strike does nothing to expedite matters. The motion also complains that several of the paragraphs in Plaintiffs' statement contain multiple statements of fact in violation of Rule 56.1, but Defendants provide no citation to any such paragraphs. Defendants' motion to strike is denied.
Plaintiffs' motion is more limited; they ask only that the court strike three of Defendants' statements: paragraph 14 for stating a legal conclusion and paragraphs 17 and 18 for containing no reference to the record. Paragraph 14 states that "Dr. Green was responsible for the medical decisions made throughout the course of the patient's treatment." (Defs' Rule 56.1(b)(3)(a) ¶ 14.) This could conceivably be a read as an impermissible legal conclusion, but based on the citation to Dr. Green's deposition, it is more accurately read as merely recounting her understanding of her own responsibilities. (Green Dep., at 155.) The request to strike paragraph 14 is denied. The court also declines to strike paragraphs 17 or 18 because the absence of any citation to the record for those paragraphs is easily explained: both paragraphs state that Plaintiffs failed to submit any evidence on a certain issue. The whole point of each paragraph is that no supportive reference to the record exists, so requiring such a reference would be nonsensical. For these reasons, Plaintiffs' motion to strike is denied.
B. Motion for Summary Judgment
The court will grant summary judgment when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). "In viewing the facts presented on a motion for summary judgment, a court must construe all facts in a light most favorable to the non-moving party and draw all legitimate inferences and ...