The opinion of the court was delivered by: Judge Rebecca R. Pallmeyer
MEMORANDUM OPINION AND ORDER
Plaintiff Gabriela Arteaga, both individually and as the mother of I.G., a minor, brings a claim under the Federal Tort Claims Act ("FTCA") alleging medical malpractice in the prenatal care and delivery of I.G. Defendant United States has filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), arguing the action is barred by the two-year statute of limitations for FTCA claims. For the reasons discussed here, the motion is granted.
Plaintiff Gabriela Arteaga ("Plaintiff" or "Arteaga") is the natural mother of I.G. (Am. Compl. ¶ 1.) From December 1, 2003, through July 2, 2004, Arteaga was pregnant with I.G. and received prenatal care from Erie Family Medical Center ("Erie") and its nurse-midwife agents. (Pl.'s Resp. to Def.'s Mot. to Dismiss (hereinafter "Pl.'s Resp."), at 1.) Erie is a private health center that receives federal grant money from the Public Health Service. (Notice of Removal, Ex. F to Pl.'s Resp. at 3.)
When Erie medical staff examined Arteaga on June 21, 2004, they learned that she was experiencing "extreme weight gain" and had a high fundal height, and that the estimated weight of her fetus was also high. (Pl.'s Resp. at 1.) These findings are often indicators of macrosomia, also known as excessive birth weight or "big baby syndrome." (Id.) According to Arteaga, these findings should have led Erie staff to conclude that: (1) I.G. was at a high risk for macrosomia; (2) I.G. was too large to be delivered vaginally without serious injury; and (3) Arteaga required referral to an obstetrician-gynecologist ("OB-GYN") for consultation on a caesarean delivery of I.G. (Am. Compl. ¶ 7.) Erie did not in fact advise Arteaga at any time during her pregnancy that, because of I.G.'s size, she should consider a caesarean section or an alternative birthing option. (Arteaga Aff. ¶¶ 6-8, Ex. B to Pl.'s Resp.)
On July 2, 2004, Arteaga delivered I.G. vaginally, receiving care and treatment from Erie and its nurse-midwife agents at Northwestern Memorial Hospital. (Am. Compl. ¶¶ 4-6.) I.G. weighed eleven pounds at birth and was delivered at almost forty-two weeks gestational age. (Pl.'s Resp. at 1-2.) On July 9, 2004, one week after her birth, I.G. was diagnosed with a right brachial plexus injury as a result of shoulder dystocia. (Id.at 2.) Shoulder dystocia is "caused by impaction of the fetal shoulder above the pubic symphysis after delivery of the head." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 582 (32d ed. 2012). Essentially, this condition arises when an infant's shoulder becomes lodged in the birth canal. A right brachial plexus injury results from damage to the group of nerves running from the spinal cord to the shoulder and often causes local paralysis. Roscoe N. Gray & Louise J. Gordy, ATTORNEY'S TEXTBOOK OF MEDICINE ¶ 100.51 (3d ed. 2011).
In I.G.'s case, the injury limits the use of her right arm and prevents her from straightening her right elbow. (2/11/2005 Evaluation/Assessment Report, Ex. 4 to Mem. in Supp. of Def.'s Mot. to Dismiss (hereinafter "Def.'s Mot."), at 1.)
On February 11, 2005, seven months after I.G.'s birth, a social worker from the Bureau of Early Intervention at the Illinois Department of Human Services visited Arteaga's home to evaluate
I.G.'s development. (2/11/2005 Evaluation/Assessment Report, Ex. 4 to Def.'s Mot. at 1.) According to the social worker's notes, Arteaga stated during the evaluation that she "had one ultrasound when she was five months pregnant with normal results," and she "was upset that she was not allowed additional ultrasounds to check the baby's progress." (Id.) Arteaga felt that additional ultrasounds would have shown that vaginal delivery was too risky and stated that she was depressed about I.G.'s condition because she believed it was preventable. (Id.) The evaluation report further explains that I.G.'s father was also upset about I.G.'s condition because he too believed it could have been prevented with more attentive prenatal care. (Id. at2.)
In a second evaluation on July 27, 2005, Arteaga and I.G.'s father reiterated their belief that I.G.'s condition could have been prevented, had medical staff performed additional ultrasounds during Arteaga's pregnancy. (7/27/2005 Evaluation/Assessment Report, Ex. 5 to Def.'s Mot. at 1-2.) This second evaluation also revealed that Arteaga and I.G.'s father had asked an attorney to evaluate I.G.'s medical records to determine whether any legal action could be taken against the hospital. (Id. at 2.) Arteaga told the social worker that, six months after receiving the medical records, the attorney determined that no legal action could be taken. According to the social worker's note, Arteaga said the lawyer believed the medical staff did all they could to protect I.G. during delivery. (Id.) The social worker's notes also state that Arteaga's therapist gave her the phone number for the Chicago Bar Association lawyer referral service in the event she wanted another attorney to review I.G.'s medical files and provide a second opinion. (Id.)
If Arteaga sought any other legal or medical opinion before December 2009, those efforts are not documented in the pleadings. Arteaga states that it was not until December 2009 that a healthcare provider informed her of the cause of I.G.'s injuries or of Erie's possible negligence. (Arteaga Aff. ¶ 11.) At that time, Arteaga's current counsel consulted with a certified nurse-midwife*fn1 (Ports Aff., Ex. 1 to Compl. at 1), who reviewed I.G.'s medical records from Northwestern Memorial Hospital and Erie Family Health Center. (1/18/10 Letter to Ports, Ex. 2 to Compl. at 1.) In the nurse-midwife's opinion: (1) Arteaga's "significant prenatal weight gain, body mass index and fundal height" should have indicated to Erie staff that I.G. was macrosomic; (2) Arteaga should have been referred to an OB-GYN for a caesarean section; and (3) Erie's failure to "properly monitor and assess the baby's size" and to recommend a caesarean section was "negligent and proximately caused [I.G.] to suffer a brachial plexus injury." (Id.) Accordingly, the nurse-midwife concluded that Arteaga had a meritorious medical malpractice case against Erie. (Id.)
Arteaga subsequently filed a complaint against Erie and its agents-Linda Sosman, CNM, and Heidi Vyhmeister, CNM-on March 10, 2010, in the Circuit Court of Cook County, alleging negligence in the prenatal care and delivery of I.G. (Compl. ¶ 10.) In April 2010, Arteaga's attorney learned that the United States was considering removing the action to federal court. (Ports Aff., Ex. D to Pl.'s Resp.) Until then, neither Arteaga nor her attorneys knew that Erie was a federal agency. (Id.; Arteaga Aff. ¶ 13.) The case was removed to federal court on August 18, 2010, and the United States was substituted as a defendant for Erie, Sosman, and Vyhmeister pursuant to 42 U.S.C. § 233 and 28 U.S.C. § 2679(d)(1). (Def.'s Mot. at 2.) The case was dismissed without prejudice on September 16, 2010, for failure to exhaust administrative remedies, (Pl.'s Resp. at 3), which is a prerequisite to filing suit under the FTCA. 28 U.S.C. § 2675(a).
Accordingly, Arteaga filed her administrative claim with the Department of Health and Human Services ("HHS") on May 11, 2010. (5/13/2010 Letter from Dept. of Health and Human Services, Ex. 1 to Def.'s Mot. at 1.) After six months had passed without an administrative decision, Arteaga filed this case on December 1, 2010, again naming Erie, Sosman, and Vyhmeister as individual defendants. (Def.'s Mot. at 2.) The United States was substituted as the sole defendant in an amended complaint filed on January 24, 2011, and Arteaga's administrative claim was denied on February 7, 2011. (Id.) The United States then filed this motion to ...