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Ortega v. United States

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

October 21, 2016

INDELIZA ORTEGA, Individually and as Mother of ADRIAN ORTEGA, a Minor, Plaintiff,
v.
THE UNITED STATES OF AMERICA, Defendant

          MEMORANDUM OPINION AND ORDER

          Ruben Castillo Chief Judge.

         Indeliza Ortega ("Plaintiff) brings this action against the United States of America ("the Government"), alleging that its physicians breached their duty of care and are responsible for the permanent injuries suffered by Adrian Ortega, Plaintiffs son, under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq. (R. 1, Compl.) Presently before the Court is the Government's motion to dismiss Plaintiffs claim for Adrian's medical expenses pursuant to Federal Rule of Civil Procedure 12(b)(6). (R. 4, Mot.) For the reasons stated below, the motion is denied.

         RELEVANT FACTS

         On April 16, 2012, Plaintiff, who at that time was pregnant, made her initial prenatal visit to Chicago Family Health Center ("FHC"), a designated federally qualified health center. (R. 1, Compl. ¶ 3; R. 1-2, Certificate of Merit at 1.) FHC was to provide professional medical, prenatal, obstetric, and nursing care to Plaintiff. (R. 1, Compl. ¶ 5.) During her initial visit, FHC's physicians noted several obstetrical risk factors, including advanced maternal age, obesity, and chronic essential hypertension. (R. 1-2, Certificate of Merit at 1.) Plaintiffs early examinations were otherwise unremarkable. (Id.) However, during her third trimester, Plaintiff demonstrated a potential for fetal macrosomia, or high birth weight, based on significant discrepancies between the fetus's gestational age and fundal height progression. (R. 1, Compl. ¶ 9.) However, Plaintiff was not counseled regarding the risks of natural childbirth with fetal macrosomia, nor was she offered a cesarean delivery. (Id.) When Plaintiff went into labor on November 19, 2012, her doctors noted signs of fetal distress that are highly indicative of potential birth asphyxia. (R. 1-2, Certificate of Merit at 1.) However, Plaintiffs physicians did not perform a cesarean section, and complications and injuries sustained during child birth left her son with severe brain injury, permanent developmental delays, and neurologic injuries. (R. 1, Compl. ¶¶ 9-10.)

         PROCEDURAL HISTORY

         On November 5, 2014, within two years after Adrian's birth, Plaintiff filed a Standard Form 95 ("SF-95") with the U.S. Department of Health and Human Services ("HHS"), claiming damages in the amount of $18, 000, 000. (R. 5-1, SF-95.) The claimant listed on the SF-95 was "Adrian Ortega, minor, by his mother and next friend, Indeliza Ortega, " and the form was signed by Emilio E. Machado, an attorney retained by Plaintiff. (Id.) Plaintiff attached medical records, medical bills, and a physician's report to her SF-95. (Id.) On December 18, 2015, HHS sent a letter denying Plaintiffs claim. (See R. 8-3, Denial Letter.)

         Plaintiff filed this action under the FTCA on May 23, 2016. (R. 1, Compl.) Plaintiff claims that the Government, through its employees at FHC, breached its duty of care by failing to properly consider potential risks for the fetus and declining to perform a cesarean delivery. (Id. ¶¶ 9-10.) Plaintiff asserts that Adrian suffered severe and permanent brain damage, multiple developmental delays, and neurologic injuries by her physicians' failure. (Id. ¶ 10.) Plaintiff seeks medical expenses for Adrian's care on her own behalf, as well as damages for Adrian's pain and suffering, loss of a normal life, and lost income on his behalf. (Id.)

         On August 5, 2016, the Government filed the present motion to dismiss for failure to state a claim. (R. 4, Mot.) The Government argues that because Plaintiff failed to file an administrative claim on her own behalf, she has not exhausted her administrative remedies as required under 28 U.S.C. § 2675(a). (R. 5, Mem. at 2.) Accordingly, because only she can recover for Adrian's medical expenses and not Adrian himself, the Government argues that this claim must be dismissed. (Id.) Plaintiff responds that because she gave the Government constructive notice of her intent to pursue her claim for the medical expenses she incurred for her minor son, she has satisfied § 2675(a). (R. 8, Resp. at 1-2.)

         LEGAL STANDARD

         "A motion to dismiss pursuant to Rule 12(b)(6) challenges the viability of a complaint by arguing that it fails to state a claim upon which relief may be granted." Firestone Fin. Corp. v. Meyer, 796 F.3d 822, 825 (7th Cir. 2015) (citation and internal alteration omitted). To survive a motion to dismiss, "a complaint must contain sufficient factual matter ... to 'state a claim to relief that is plausible on its face.' " Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Ail. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. When considering a motion under Rule 12(b)(6), the Court must "accept as true all of the well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff." Kubiak v. City of Chi., 810 F.3d 476, 480-81 (7th Cir. 2016). The Court may consider allegations in the complaint, "documents that are attached to the complaint, documents that are central to the complaint and referred to in it, and information that is properly subject to judicial notice." Williamson v. Curran, 714 F.3d 432, 436 (7th Cir. 2013).

         ANALYSIS

         As a preliminary issue, the Government argues that Adrian has no personal cause of action to recover medical expenses on his own behalf because, under Illinois law, only parents may recover medical expenses incurred for their minor children in their individual capacities.[1](R. 5, Mem. at 7.) Plaintiff does not respond to this argument.

         Under the FTCA:

[T]he district courts ... shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages ... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, ...

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