United States District Court, N.D. Illinois, Eastern Division
INDELIZA ORTEGA, Individually and as Mother of ADRIAN ORTEGA, a Minor, Plaintiff,
THE UNITED STATES OF AMERICA, Defendant
MEMORANDUM OPINION AND ORDER
Castillo Chief Judge.
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.
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.)
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
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.)
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.)
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).
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.(R. 5, Mem. at 7.) Plaintiff does
not respond to this argument.
[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,