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Blanche v. United States

United States District Court, N.D. Illinois, Eastern Division

March 17, 2015



THOMAS M. DURKIN, District Judge.

Arianna Blanche, by her guardian and mother, Latoya Blanche, [1] has sued the United States under the Federal Tort Claim Act ("FTCA") for injuries that she sustained during her delivery. The United States has moved for summary judgment, arguing that she filed her medical malpractice claim after the FTCA's two-year statute of limitations had expired. For the following reasons, the Court grants the government's motion.


During her pregnancy with Arianna, Latoya received prenatal care at the Will County Community Health Center ("WCCHC") from Dr. Buthaina M. Jabir, Sue Mersch, and Christine Lukanich. R. 73-1 ¶ 3. Latoya was admitted to Silver Cross Hospital and Medical Center ("Silver Cross") on September 2, 2008, where she gave birth to Arianna on September 4, 2008. Id. at ¶ 4. Dr. Husam Marsheh, a doctor affiliated with WCCHC, delivered the baby. Id. [2] Arianna was unusually large at birth (11.7 lbs.), a condition known as macrosomia. Id. at ¶ 5. During the delivery, Arianna's body became lodged in the birth canal after her head emerged (shoulder dystocia). Id. at ¶ 6; see also id. at ¶ 10 (Latoya felt as if the baby's "head was out, but her body wasn't."). The baby was lodged for what "seemed like" 20 minutes to Latoya, but was probably less. R. 73-1 ¶ 11. She was frightened that she would lose the baby. Id. at ¶ 13.

While he was delivering the baby, Dr. Marsheh "hollered" at the nurses, "in a tone that sounded like he was upset, " "[w]ho was her doctor? Who was her doctor? Find out who her doctor was." Id. at ¶ 20.[3] Latoya assumed that he was referring to her prenatal doctor. Id. at ¶ 21. Her testimony about her contemporaneous understanding of why he was asking about her prenatal doctor is somewhat unclear. At one point in her deposition, Latoya clearly states that she understood at the time that Dr. Marsheh wanted to know why her prenatal doctors hadn't notified him that the baby was too large for a vaginal delivery:

Q. And as far as what your understanding at the time was, why did you understand that he wanted to know the answer to that?
A. Because - I guess because he wanted to know that - he wanted to know, like, who took care of her while she was pregnant, because that was my first time I was seeing Dr. Marsheh, at the hospital. He - Dr. Marsheh never seen me. That was my first time ever seeing him, at the hospital, and maybe - I just felt like maybe he want to know details, like did they know that this was an enlarged baby or anything like that. Like did they even put it in the records? Why didn't they - didn't record this, that this was going to be a large baby, that he needs a C-section.
I mean, from my perception. That's what I was thinking, like maybe he want to know why didn't nobody know that this baby was large? So I am not sure.

R. 68-1 at 117. She later testified that she knew that Dr. Marsheh was troubled by the baby's size, but did not know what that had to do with her prenatal doctor. Id. at 120. After trying several different delivery positions at Dr. Marsheh's direction, Latoya heard "like a popping sound or something, and then the next thing you know she was coming out." Id. at ¶ 14. She testified that there was a lot of activity in the room after the delivery, and that she was upset:

So then the next thing you know - I know, a lot of other people came in the room, like I don't know who they was, but other people came in the room. So he got her out, and they put her in a thing [incubator]. And I was like, what's wrong with my baby? What's wrong with my baby? Then the doctor was like, let me work on her. Let me work on her. Let me work on her, and then I was crying, and then there was a nurse by me like, she's gonna be okay. She gonna be okay. Everything is going to be alright. She is going to be fine, and then I just heard my baby crying, and they rushed her out of the room, and Dr. Marsheh stitched - stitched me up.

R. 68-1 at 58-59; see also R. 73-1 ¶ 8.

Following the birth, Latoya saw Arianna in Silver Cross's intensive care room wearing a splint on her right arm. R. 73-1 ¶ 15. Initially, Arianna was unable to move her right arm at all. Id. at ¶ 16. Latoya asked Dr. Marsheh: "why has she got this on? What's wrong with her arm and they told me." Id. at ¶ 17.[4] At some point, possibly in the context of this discussion, and at any rate, during her recovery at Silver Cross: (1) someone told Latoya that Arianna had a condition called Erb's palsy, id. at ¶¶ 17, 23;[5] and (2) Dr. Marsheh apologized to her. "It was like, I'm sorry about the delivery of your baby and stuff like that." Id. at ¶ 18. Latoya believed that Dr. Marsheh was apologizing for Arianna's injury:

Q. Tell me as closely as you can what exactly Dr. Marsheh said to you when he came in and apologized to you.
A. He was just saying that he was sorry, and I assumed that he was sorry for the birth of my baby and ...

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