Matthias v. United States

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JANELLE MATTHIAS, individually and

as administratrix1 of the Estate of

KEVON BRIAN MUSTAFA, deceased,

MEMORANDUM AND ORDER

Plaintiff,

18-cv-3568(KAM)(GMJ)

-against-

UNITED STATES OF AMERICA;

Defendant.

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KIYO A. MATSUMOTO, United States District Judge:

On April 27, 2018, Janelle Matthias (“plaintiff”),

individually and as administratrix of the Estate of Kevon Brian

Mustafa, her deceased infant son, filed this action against the

United States (“defendant” or “Government”), pursuant to the

Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671, et

seq., claiming that from May 11, 2015 to September 22, 2015,

plaintiff was the recipient of medical treatment that she

alleges failed to meet the standards of adequate medical care,

and, her allegation continues, such negligence ultimately caused

the death of her infant son, born and deceased on September 22,

2015. (ECF No. 1, Plaintiff’s Verified Complaint filed 6/19/18

(“Compl.”).) Plaintiff brings claims of negligent medical

treatment and care, failure to obtain informed consent,

1 Plaintiff’s status as administratrix is questioned and discussed infra.

negligent hiring and retention, and loss of services. (See

Compl.) On April 25, 2019, plaintiff amended the complaint,

adding another cause of action for wrongful death. (ECF No. 9,

Plaintiff’s Amended Complaint filed 4/26/19 (“Amended Compl.”)

at 14-15.)2 On June 25, 2019, the United States moved to dismiss

the complaint, claiming this court lacks subject matter

jurisdiction due to plaintiff’s failure to exhaust

administrative remedies pursuant to Federal Rule of Civil

Procedure 12(b)(1), and for failure to state a claim upon which

relief can be granted under Federal Rule of Civil Procedure

12(b)(6). (ECF No. 21, Gov’t Memorandum in Support of Motion to

Dismiss filed 9/19/19 (“Gov’t Mot.”).) Plaintiff opposes the

Government’s motions in their entirety. (ECF No. 24,

Plaintiff’s Memorandum in Opposition of Defendant’s Motion to

Dismiss filed 9/19/19 (“Pl. Mem. in Opp.”).)3

For the reasons stated below, the court finds that

plaintiff exhausted all administrative remedies before bringing

the instant action regarding her individual negligence and

medical malpractice claims. Plaintiff, however, did not satisfy

2 Plaintiff’s original complaint is available at ECF No. 1, pp. 1-15.

Plaintiff’s amended complaint is available at ECF No. 9, pp. 1-18. This order

refers only to plaintiff’s amended complaint. See generally, Amended Compl.

3 Plaintiff’s Memorandum in Opposition of Motion to Dismiss was filed

onto the docket twice. Compare ECF No. 17, filed 8/23/19, with ECF No. 24,

filed 9/19/19. The court refers throughout to Pl. Mem. In Opp. located at ECF

No. 24.

the exhaustion and presentment requirement for the claims

brought on behalf of the deceased infant’s estate and, as such

the court does not have subject matter jurisdiction over any of

the deceased’s estate’s claims. The court further holds that

the negligent hiring and retention claim falls within the

discretionary function exception to the Federal Tort Claims Act,

and is denied. Lastly, the court finds that plaintiff failed to

state a claim upon which relief may be granted with respect to

her claims of wrongful death and loss of services. Accordingly,

defendant’s motion to dismiss is DENIED in part and GRANTED in

part.

BACKGROUND

The facts, as stated in plaintiff’s amended complaint

and in exhibits4 attached to the plaintiff’s memorandum in

opposition to defendant’s motion to dismiss,5 are as follows.

4 All exhibits referenced herein are available at ECF No. 24, as

attachments 24-1 to 24-18. Plaintiff’s counsel incorrectly filed a

declaration with each exhibit. Further, Exhibits 12–15 have been incorrectly

filed onto ECF. Thus, ECF No. 24-15, Declaration Exhibit 15, is Plaintiff’s

Exhibit 12; ECF No. 24-12, Declaration Exhibit 12 is Plaintiff’s Exhibit 13;

ECF No. 24-13, Declaration Exhibit 13 is Plaintiff’s Exhibit 14, and ECF No.

24-14, Declaration Exhibit 14 is Plaintiff’s Exhibit 15. For the purpose of

clarity, all exhibits will be referenced by plaintiff’s exhibit designation,

not by their incorrect filing designations onto ECF.

5 “Where subject matter jurisdiction is challenged,...a court may consider

materials outside the pleadings, such as affidavits, documents and

testimony.” Silva v. Farrish, 18-CV-3648 (SJF) (SIL) 2019 WL 117602, at

*4(E.D.N.Y. Jan. 7, 2019)(quoting Forbes v. State Univ. of New York at Stony

Brook, 259 F.Supp.2d 227, 231-32 (E.D.N.Y. 2003) (“In a Rule 12(b)(1) motion,

the Court may consider affidavits and other material beyond the pleadings to

resolve the jurisdictional question.” (citation omitted)).

On September 22, 2015, at 8:04 p.m., plaintiff gave

birth to an infant son, Kevin Brian Mustafa, at Brooklyn

Hospital Center. (See ECF No. 24-14, Plaintiff’s Exhibit 15,

Certificate of Birth – Deceased.) On the birth certificate,

hospital administrator Collin Ferdinand certified and signed

that the infant was born alive, but tragically passed away three

hours later. Id.6 An autopsy was performed on the deceased

infant by Patrick E. LeBlanc, M.D., on October 1, 2015, and the

report was later signed by Tiangui Huang, M.D. on October 9,

2015. (Pl. Exh. 16, Autopsy Report, at 3.) The report stated

that the deceased infant was born via caesarian section “due to

prolonged rupture of membrane, and a non-reassuring fetal heart

tone.” (Id. at 4.) The deceased infant was noted to have “poor

respiratory affect,” was intubated, and “PPV was initiated.”

(Id.) Post-intubation, the infant’s condition stabilized, and

he was brought to the NICU to recuperate. (Id.) The report

stated that the infant expired approximately three hours after

his birth, at 11:13 p.m. on September 22, 2015. (Id. at 3-4.)

Analysis of the deceased infant’s lung showed “marked hyaline

membrane – a pathological finding for respiratory stress

syndrome – on the background of bacterial overgrowth.” (Id.)

6 Plaintiff first alleged that the infant was stillborn, later alleging

that the infant lived for three hours. (Compare Pl. Mem. in Opp. pp. 15 with

pp. 19.) The court finds that the infant was born alive and lived for three

hours, based on review of the birth certificate and the autopsy report. (See

Pl. Exh. 15, 16 (ECF Nos. 24-14, 24-16).)

The cause of death was noted as “respiratory distress syndrome

due to immaturity” which was later denoted in parenthesis as

“hyaline membrane disease.” (Id.)

Plaintiff filed an action alleging medical malpractice

and wrongful death in the Supreme Court of New York, Kings

County under Index No. 514176/2016, against defendants Errol

Byer, M.D., Frederick Stanton, M.D., Alessia Perry, M.D.,

Brooklyn Hospital Center, and Brooklyn Plaza Medical Center

P.C., a health center federally qualified under the Department

of Health and Human Services (“DHHS”). (Pl. Mem. in Opp. at 2.)

Plaintiff filed the summons and verified complaint on August 10,

2016. (See Pl. Exh. 2.)

Plaintiff lodged similar allegations in her state

court complaint as those at issue here; namely, that the medical

treatment provided by Errol Byer, M.D., Frederick Stanton, M.D.,

and Alessia Perry, M.D., beginning on or about May 11, 2015 and

continuing until September 22, 2015, departed from the accepted

medical standards of care and caused her to suffer grave bodily

injury, complications, additional surgery and treatment, mental

anguish, and led to the wrongful death of her infant son. (Pl.

Exh. 2 at ¶¶ 16, 28, 40, 52, 69.) She further claimed that her

alleged injuries were due to the negligent hiring and retention

of aforementioned physicians by the Brooklyn Hospital Center and

Brooklyn Plaza Medical Center, P.C.. (Id. at ¶ 74-76.)

Plaintiff also claimed that her son suffered a wrongful death as

a result of her negligent medical treatment. (Id. at ¶ 80.)

Lastly, plaintiff asserted her injuries were caused by the

defendants’ failure to obtain her informed consent for the

treatment rendered. (Id. at ¶ 82-84.)

On April 28, 2017, the United States of America

removed the action to the United States District Court for the

Eastern District of New York, pursuant to the FTCA, 28 U.S.C. §§

1346, 2401, 2671 et seq., which allows the United States of

America to substitute itself as a party defendant where a

federal employee was acting within the scope of employment at

the time the alleged tortious acts or omissions took place. See

28 U.S.C. § 2679 (d)(1).

In a related action, this court previously held that

because Brooklyn Plaza Medical Center was a federally supported

medical center and deemed eligible by DHHS for coverage under 42

U.S.C. § 233(g)-(h), and defendants Errol Byer, M.D., Frederick

Stanton, M.D., and Brooklyn Plaza Medical Center P.C., were

acting in the course and scope of their employment as federal

employees at the time of the events alleged, Pl. Exh. 4 at 4,

the certification and notice of substitution of the United

States in place of Errol Byer, M.D., Frederick Stanton, M.D.,

and Brooklyn Plaza Medical Center P.C., was proper. (See Pl.

Exhs. 10-14 (ECF Nos. 24-10, 24-11, 24-15, 24-12, 24-13);

Janelle Matthias, individually and as the administrator of the

Estate of Kevon Brian Mustafa, deceased v. Errol Byer, M.D.,

Frederick Stanton, M.D., Alessia Perry, M.D., Brooklyn Hospital

Center, and Brooklyn Plaza Medical Center P.C., No. 17-cv-02546

2017 WL 4314500 (E.D.N.Y. Aug. 20, 2019) (Irizarry, J.) (Levy,

M.J.)).

In that previous action, defendant United States of

America filed a motion to dismiss, alleging that this court

lacked subject matter jurisdiction, which the other defendants

supported with a memorandum of law in support of defendant’s

motion to dismiss. (Pl. Exh. 3.) The gravamen of the United

States’ motion was that the plaintiff had not exhausted her

administrative remedies before filing, since she had not

submitted an administrative tort claim to the DHHS for her

alleged injuries. (Id. at 2; Pl. Exh. 4 at 3.)

The court in 17-cv-2546 granted defendant’s motion to

dismiss, pursuant to a Stipulation and Order of Partial

Dismissal, Modification of Caption and Remand. (Pl. Exh. 4.)

Pursuant to Fed. R. Civ. P. 41(a)(1)(A)(ii), the claims against

Errol Byer, M.D., Frederick Stanton, M.D., and Brooklyn Plaza

Medical Center P.C. were dismissed with prejudice, and the

claims against the United States of America were dismissed

without prejudice, with the remaining claims remanded to the New

York State Supreme Court, Kings County. (Id. at 6.)

On August 3, 2017, plaintiff submitted a Standard SF-

95 Claim Form to the US Department of Health and Human Services

alleging negligence and wrongful death. (Pl. Exh. 10.) Under

Item 10, titled “Personal Injury/ Wrongful Death” plaintiff

wrote:

Due to the negligence and carelessness of Errol Byer,

M.D., Frederick Stanton, M.D., and Alessia Perry,

M.D., Janelle Matthias’s son, Kevin Brian Mustafa died

at birth due to an irregular heartbeat and Janelle

Matthias has suffered pain, trauma and emotional

distress.7

Plaintiff added an additional page stating the basis

of her claim as:

On or about May 11, 2015, continuing to, through and

including September 22, 2015, at or near the Brooklyn

Plaza Medical Center P.C., the Brooklyn Hospital

Center, Errol Byer, M.D., Frederick Stanton, M.D., and

Alessia Perry M.D., were negligent, careless and

departed from the accepted standards of medicine by

failing to diagnose Janelle Matthias and treat her

given her medical history, signs and symptoms, and

complaints upon presentation, eventually leading to

the untimely and wrongful death of her son, Kevon

Brian Mustafa; in negligently proscribing medication

that harmed Janelle Matthias; in failing to provide a

prenatal and neonatal consultation; in failing to

properly and timely diagnose Janelle Matthias with

urinary tract infection; in failing to monitor the

effects of the medications given to Janelle Matthias

during childbirth.8

7 Pl. Exh. 10 at 3.

8 Id. at 5.

On August 21, 2017, plaintiff’s counsel received

correspondence from Dorothea P. Koehler, Paralegal

Specialist at DHHS, acknowledging receipt of the

administrative tort claim, filed on August 8, 2017, and

identified as Claim No. 2017-0528a. (Pl. Exh. 11.) The

letter requested the necessary documentation to proceed

with the claim. (Id.) On December 8, 2017, plaintiff’s

counsel sent itemized bills, medical records, and funeral

expenses, pursuant to the DHHS’s request. (Pl. Exh. 12 (ECF

24-15).) On February 12, 2018,9 plaintiff’s administrative

tort claim was denied in a letter signed by William A.

Bigelow, Deputy Associate General Counsel for the Claims

and Employment Law Branch. (Pl. Exh. 14 (ECF No. 24-13).)

The letter notified plaintiff that she was entitled to

challenge the agency’s determination by filing an action

against the United States in the appropriate district court

within six months from the date of the mailing of the

agency’s determination. (See 28 U.S.C. 2401(b); Id. at 4.)

STANDARD OF REVIEW

Defendant brings its motion to dismiss both for lack of

subject matter jurisdiction under Rule 12(b)(1), and for failure

9 Pl. Exh. 14 (ECF No. 24-13) at 3. The stamped date appears to be

February 12, 2018. This is consistent with plaintiff’s memorandum in

opposition, that also indicates that Pl. Exh. 14 (ECF No. 24-13) is dated

February 12, 2018.

to state a claim under Rule 12(b)(6), in the context of the

Federal Tort Claims Act (“FTCA”). The relevant standards are

set forth below.

I. Rule 12(b)(1)

“‘A case is properly dismissed for lack of subject

matter jurisdiction under Rule 12(b)(1) when the district court

lacks the statutory or constitutional power to adjudicate

it.’” Roman v. C.I.A., No. 11-CV-5944, 2013 WL 210224, at *4

(E.D.N.Y. Jan. 18, 2013) (quoting Makarova v. United States, 201

F.3d 110, 113 (2d Cir. 2000)). It is well-settled that the

“plaintiff bears the burden of proving subject matter

jurisdiction by a preponderance of the evidence.” Aurecchione

v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.

2005) (citing Luckett v. Bure, 290 F.3d 493, 496 (2d Cir.

2002)). In reviewing a Rule 12(b)(1) motion to dismiss, the

court “must accept as true all material factual allegations in

the complaint, but [it is] not to draw inferences from the

complaint favorable to plaintiff[].” J.S. ex rel. N.S. v.

Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004). Moreover,

the court “may consider affidavits and other materials beyond

the pleadings to resolve the jurisdictional issue, but [it] may

not rely on conclusory or hearsay statements contained in the

affidavits.” Id.

II. Rule 12(b)(6)

To survive a Rule 12(b)(6) motion to dismiss, “‘a

complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its

face.’” Absolute Activist Value Master Fund Ltd. v. Ficeto, 677

F.3d 60, 65 (2d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009)). Although the court must “accept as true all

factual statements alleged in the complaint and draw all

reasonable inferences in favor of the non-moving party,”

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir.

2007), plaintiff’s “[f]actual allegations must be enough to

raise a right to relief above the speculative level,” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007). Indeed,

“[c]onclusory allegations or legal conclusions masquerading as

factual conclusions will not suffice to [defeat] a motion to

dismiss.” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d

328, 337 (2d Cir. 2006) (alterations in original) (internal

quotation marks omitted).

III. Federal Tort Claims Act

The Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671

et seq., waives the sovereign immunity of the United States in

limited circumstances. In relevant part, the FTCA authorizes

suits against the federal government to recover 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, would be

liable to the claimant in accordance with the law

of the place where the act or omission occurred.

28 U.S.C. § 1346(b)(1).

One of the exceptions to the FTCA’s waiver of

sovereign immunity is the “discretionary function

exception,” (“DFE”) which provides that Congress’s authorization

to sue the United States for damages does not apply to any

claim “based upon the exercise or performance or the

failure to exercise or perform a discretionary function or

duty on the part of a federal agency or employee of the

Government, whether or not the discretion involved be

abused.” 28 U.S.C. § 2680(a). The discretionary function

exception “‘marks the boundary between Congress’

willingness to impose tort liability upon the United States

and its desire to protect certain governmental activities from

exposure to suit by private individuals.’” Berkovitz v. United

States, 486 U.S. 531, 536 (1988) (quoting United States v. S.A.

Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S.

797, 808 (1984)). Because the FTCA operates as a grant of

subject matter jurisdiction to the federal courts, “a finding

that the discretionary function exception applies is tantamount

to holding that the court lacks jurisdiction.” Caban v. United

States, 671 F.2d 1230, 1235 n.5 (2d Cir. 1982).

The plaintiff bears the burden of establishing, by a

preponderance of the evidence, that the court retains authority

to adjudicate a case. Makarova v. United States, 201 F.3d 110,

113 (2d Cir. 2000); Loew v. U.S. Postal Serv., No. 03-CV-5244,

2007 WL 2782768, at *4 (E.D.N.Y. Feb. 9, 2007).

Generally, a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1) and a motion to dismiss

for failure to state a claim under Rule 12(b)(6) are reviewed

under the same standard, which requires a court to accept as

true the facts alleged in the complaint, and to draw all

reasonable inferences in favor of the plaintiff. Loew, 2007 WL

2782768, at *4. Where, however, “the jurisdictional challenge is

based on the FTCA, the government receives the benefit of any

ambiguities.” Id.; Moreno v. United States, 965 F. Supp. 521,

524 (S.D.N.Y. 1997) (“Because the FTCA creates a waiver of

sovereign immunity, it is strictly construed and all ambiguities

are resolved in favor of the United States.”). Subject matter

jurisdiction “must be shown affirmatively, and that showing is

not made by drawing from the pleadings inferences favorable to

the party asserting it.” APWU v. Potter, 343 F.3d 619, 623 (2d

Cir. 2003) (internal quotation marks and citation omitted). A

plaintiff bears “the initial burden to state a claim that is not

barred by the DFE.” Molchatsky v. United States, 713 F.3d 159,

162 (2d Cir. 2013); see Wang v. United States, 61 F. App’x 757,

759 (2d Cir. 2003) (“Plaintiffs failed to meet their initial

burden of pleading facts which would support a finding that the

conduct of the investigative agents fell outside the scope of

the exception.”).

DISCUSSION

I. The FTCA’s Exhaustion and Presentment Requirement

To bring an FTCA claim in federal court, plaintiff

must first present the claim to the appropriate federal agency

and receive a written denial from that agency, or may file an

action sixty days after the claim is presented, if the agency

fails to respond. See 28 U.S.C. § 2675(a) (no action shall be

instituted “unless the claimant shall have first presented the

claim to the appropriate Federal agency and his [or her] claim

shall have been finally denied by the agency in writing and sent

by certified or registered mail”). See also 28 U.S.C. §

2679(d)(5) (providing that “[w]henever an action or proceeding

in which the United States is substituted as the party defendant

. . . is dismissed for failure first to present a claim” to the

appropriate federal agency, “such a claim shall be deemed to be

timely presented” if (1) “the claim would have been timely had

it been filed on the date the underlying civil action was

commenced;” and (2) “the claim is presented to the appropriate

Federal agency within 60 days after dismissal of the civil

action”).

FTCA claims:

shall be deemed to have been presented when a Federal

agency receives from a claimant, his duly authorized

agent or legal representative, an executed Standard

Form 95 or other written notification of an incident,

accompanied by a claim for money damages in a sum

certain for injury to or loss of property, personal

injury, or death alleged to have occurred by reason of

the incident; and the title or legal capacity of the

person signing, and is accompanied by evidence of his

authority to present a claim on behalf of the

claimant as agent, executor, administrator, parent,

guardian, or other representative.

28 C.F.R. § 14.2. Additionally, though a personal injury claim

“may be presented by the injured person, his duly authorized

agent, or legal representative,” 28 C.F.R. § 14.3(b), a wrongful

death claim may be presented only by “the executor or

administrator of the decedent's estate, or by any other person

legally entitled to assert such a claim in accordance with

applicable State law.” 28 C.F.R. § 14.3(c). Under New York

state law, a “personal representative,” is defined as someone

that “received letters to administer the estate of a decedent,”

and is the only party who may bring a wrongful death or survival

action. See N.Y. Est. Pow. and Trst § 5–4.1; id. at § 1–2.13;

see also Fed. R. Civ. P. 17 (b)(3) (requiring federal courts to

look to state law when determining capacity to bring suit).

First, the court addresses defendant’s contention that

plaintiff failed to include evidence of her authority as

personal representative of the estate of the deceased infant

Mustafa, and thus failed to satisfy the presentment requirement

regarding her claims on behalf of the estate. (Def. Reply at

4.) Second, the court addresses defendant’s argument that

plaintiff’s individual claim does not satisfy the FTCA’s

presentment requirement. (Def. Reply at 3; 28 U.S.C. §

2675(a).) In response to defendant’s arguments, plaintiff

asserts that she has satisfied the presentment requirement for

herself and for the deceased infant’s estate, pointing to the

correspondence between plaintiff’s counsel and DHHS, as well as

the agency’s denial of claim letters. (Pl. Mem. in Opp. at 16-

17.)

A. Plaintiff’s FTCA Claim Brought as Administratrix of

Deceased Infant’s Estate

Plaintiff has failed to bring a claim on behalf of the

estate of the deceased infant, as she has not been properly

appointed administratrix under New York law.

Although strict compliance with 28 C.F.R. § 14.2 is

not a jurisdictional requirement, a claim must “provide minimal

notice that (1) gives the agency written notice of [the] claim

sufficient to enable the agency to investigate and (2) places a

value on [the] claim.” Byrne v. United States, 804 F. Supp.

577, 579 (S.D.N.Y. 1992) (internal quotations omitted). See,

e.g., Romulus v. United States (Romulus II), 160 F.3d 131, 132

(2d Cir. 1998); State Farm Mut. Auto. Ins. Co. v. U.S., 326 F.

Supp. 2d 407, 413 (E.D.N.Y. 2004) (“[t]he Second Circuit has not

determined whether a failure to provide further information—

beyond a notice of claim and a sum certain—is fatal to a court's

jurisdiction. This court must, therefore, determine whether the

plaintiff provided the Navy with sufficient information about

the claim to constitute adequate notice required for

jurisdiction.”); Lee v. U.S. Dept. of Army, No. 11-CV-331 (RRM)

(CLP) 2013 WL 4048329, at *4 (E.D.N.Y. Aug. 9, 2013), (“[n]otice

need not meet formal pleading requirements as long as it is

specific enough to serve the purposes underlying § 2675(a)-- ‘to

ease court congestion and avoid unnecessary litigation, while

making it possible for the Government to expedite the fair

settlement of tort claims.’”).

Similar to the instant case, “[i]n Byrne, the court

examined whether the plaintiff established subject matter

jurisdiction where his notice of claim was timely, [yet]

deficient pursuant to 28 C.F.R. § 14.2 because it failed to

present evidence of plaintiff’s authority to present the

claim.” D’Angelo v. United States, No. 14-CV-482 (SJF) (GRB)

2016 WL 6988807, at *3 (E.D.N.Y. Nov. 15, 2016) (internal

quotations and citations omitted) (discussing Byrne, 804 F.

Supp. at 579); see also 28 C.F.R. § 14.2(a). The Byrne court

held that the notice of claim was sufficient, despite the

plaintiff not having been appointed as the personal

representative of the estate at the time of the filing of the

claim, because plaintiff “provided the government with the

minimal notice required under the FTCA so that it could

adequately investigate the claim.” Id. at 582. Additionally,

the court permitted the claim to proceed because the plaintiff

was the executor at the time the action commenced in federal

court. Id. at 582 (emphasis added).

Following Byrne, a later case from this court

discussed the manner in which FTCA actions have been allowed to

proceed in court even “when the administrative claim had been

brought by a person not formally authorized under the

regulations to make such a claim” so long as the agency was

given minimal notice. Genao v. U.S., No. 08-cv-878 (NG) (SMG)

2010 WL 3328017, at *3 (E.D.N.Y. Aug. 19, 2010) (citing Knapp v.

United States, 844 F.2d 376, 380 (6th Cir. 1988) (holding that

even though plaintiff had not “received letters of authority

when she presented [her administrative claim], this circumstance

had no effect on her right to sue under the FTCA once she had

qualified”) (emphasis added).

Unlike the instant case, in Genao the issue presented

was timeliness, as all claimants were appointed personal

representatives after the two-year statutory period expired.

Thus, although the claimant in Genao had not procured the

necessary letters of administration at the time of filing the

administrative claim, and had therefore not provided the

necessary “evidence of authority,” 28 C.F.R. § 14.2, by the time

claimant filed suit in federal court, claimant was officially

appointed as the estate representative.

On these facts the courts have permitted similar

claims to proceed, because the administrative claims provided

sufficient minimal notice, and at the commencement of the

federal actions, the claimants in the cases referenced, supra,

were officially personal representatives. Knapp, 844 F.2d at

380 (requirements of 28 U.S.C. § 2675(a) were met because Mrs.

Knapp had provided written notice sufficient to enable the

agency to investigate and had placed a value on her claim though

she was only appointed personal representative after the two-

year statute of limitations expired); Ford, 640 F. Supp. 2d at

1070 (same); Genao, 2010 WL 3328017, at *3 (holding plaintiff is

entitled to equitable tolling of the FTCA limitations periods

due to extraordinary circumstances).

Here, plaintiff’s alleged injuries took place from May

11, 2015 to September 22, 2015, (Amended Compl. at ¶ 7, 17, 30,

46), and the administrative claim form, SF-95, was submitted on

August 3, 2017. (Id. at ¶ 3; Pl. Exh. 10.) Unlike the cases

discussed above, plaintiff timely met the requirements of 28

U.S.C. § 2675(a) by filing the claim form prior to the

expiration of the two year statute of limitations, and thus

timeliness is not at issue in this case. Byrne, 804 F. Supp. at

579 (discussing deficiency of notice regarding 28 C.F.R. § 14.2,

where notice was timely in accordance with § 2675).

Plaintiff’s circumstances however, are also distinct

from Genao, Ford, and Knapp, in that, to the court’s knowledge,

plaintiff has not been appointed as personal representative of

the estate of the deceased infant, and as such, cannot bring

claims on behalf of the estate of the deceased. See Health v.

Banks, 15-cv-4228 (MDG) 2016 WL 5716817, at *5 (E.D.N.Y. Sep.

30, 2016) (quoting Palladino v. Metro. Life Ins. Co., 590

N.Y.S.2d 601, 602 (App. Div.3d Dep't 1992) (“[o]nly a duly

appointed personal representative may bring suit on behalf of a

decedent” in New York.); Garmon v. Cnty. of Rockland, No. 10

Civ. 7724(ALC)(GW), 2013 WL 541380, at *3 (Feb. 11,

2013)(quoting Palladino, 590 N.Y.S.2d at 602 (“Inasmuch as

letters of administration have not been issued to plaintiff, he

has no standing to sue.”). See also Purcell ex rel. Estate of

Tyree v. City of New York, 18-CV-3979 (PKC)(RLM) 2020 WL

2559796, at *3 (E.D.N.Y. May 19, 2020)(finding plaintiff

initially lacked standing to sue on behalf of the decedent's

estate since she has not received letters of administration, and

only permitting claims to proceed once the deficiency was

cured). Plaintiff offers no contradictory evidence or argument.

Thus, the court finds that plaintiff failed to satisfy the

presentment requirement with respect to her claims brought on

behalf of the estate of the deceased infant.

For the foregoing reasons, the court dismisses the

claims brought on behalf of the estate of the deceased infant.

B. Plaintiff’s Individual FTCA Claim

Plaintiff’s individual administrative claim meets the

standard for minimal notice. Plaintiff properly filed the SF-

95, alleged facts sufficient for the agency to investigate the

claim, and provided a claim amount in a sum certain.

First, defendant argues that plaintiff’s counsel

signed the administrative claim form, SF-95, for plaintiff’s

personal injury claim without providing “evidence of his or her

authority to present a claim on behalf of the plaintiff” by

failing to list his or her identity or relationship to the

plaintiff or the estate of the deceased. (Def. Reply at 3.)

However, a review of Pl. Exh. 13 (ECF No. 24-12), the enclosure

letter attached by plaintiff’s counsel with the DHHS’s requested

documentation, establishes that the fourth listed attachment is

a power of attorney form. (Pl. Exh. 13.) Defendant concedes

that “plaintiff’s counsel signed the SF-95.” (Def. Mem. at 8.)

As the power of attorney form provided to the DHHS set forth the

identity of plaintiff’s counsel, the court finds the plaintiff

clearly provided evidence of authority, and properly presented

her individual claims to the agency. A further showing of

“evidence of authority” is unnecessary. Byrne, 804 F. Supp. at

579; see also 28 C.F.R. § 14.2(a).

Second, the facts plaintiff provided were sufficient

to investigate a claim. See Romulus II, 160 F.3d at 132 (“a

notice of claim filed pursuant to the FTCA must provide enough

information to permit the agency to conduct an investigation and

to estimate the claim's worth.”) Plaintiff provided names of

the physicians under agency employ, the alleged malpractice, and

the cause of death that was the subject of the

suit. State Farm, 326 F. Supp. 2d at 414 (holding that

plaintiff satisfied presentment where the agency “clearly had a

detailed understanding of the medical evidence regarding the

injury ... indicating a description of the accident and doctors'

findings in detail” and where “plaintiff did not refuse to

cooperate with the [agency's] investigation.”); see also Pl.

Exh. 13 (ECF No. 24-12) (enclosure letter complying with DHHS’s

documentation request).

Third, plaintiff specified a sum certain of

$20,000,000 on the administrative claim form. (Pl. Exh. 10 at

3. See Keene Corp. v. United States, 700 F.2d 836, 841 (2d Cir.

1983) (holding that failure to state a sum certain in the claim

for damages renders the notice of claim deficient)).

Fourth, plaintiff’s notice of claim was timely,

because it was brought within the two year statute of

limitations. 28 C.F.R. § 14.2(a). Accordingly, the court finds

that the agency had sufficient notice regarding plaintiff’s

independent claims.10

In summary, as there is no evidence to demonstrate

that plaintiff was the personal representative of the decedent

at that time of filing the administrative claim or the instant

action, the court dismisses the claims brought by the plaintiff

on behalf of the decedent’s estate. With respect to plaintiff’s

claims brought on her own behalf, the court finds that plaintiff

has satisfied the presentment requirement pursuant to § 2675(a).

Thus, this court has subject matter jurisdiction over this

action. Defendant's motion to dismiss is DENIED with respect to

the plaintiff’s individual claims and GRANTED with respect to

claims concerning the deceased infant.

10 The cases cited by defendant to support its contention are

unpersuasive, as they are against the weight of authority in this circuit and

district. See Byrne, 804 F. Supp. at 582 (rejecting the government’s

contention that the court does not have jurisdiction on the basis of Del

Valle as “against the weight of authority.”).

II. Plaintiff’s Informed Consent Claim

Defendant next argues that plaintiff’s informed

consent claim cannot stand, because the administrative claim

form originally filed by the plaintiff did not state a distinct

claim for lack of informed consent. (Def. Mem. at 9; see also

Pl. Exh. 10.) Plaintiff concedes that she did not allege a

separate claim for informed consent on the SF-95 form, yet

contends that informed consent for medical treatment is

considered part of a medical malpractice claim. (Pl. Mem. in

Opp. at 17, citing Soriano v. United States, No. 12 Civ. 4752

(VB) 2013 WL 3316132, at *7 (S.D.N.Y. Jul. 1, 2013) (finding

informed consent was considered part of a medical malpractice

claim and thus not barred by failure to assert in administrative

claim form)).

In the instant case, the facts alleged in plaintiff’s

administrative claim failed to put the DHHS on notice of the

informed consent claim. The FTCA’s exhaustion requirement is

not met where the “initial administrative claim asserted only

medical malpractice and did not include an informed consent

claim,” because, “[i]n this Circuit, a Notice of Claim filed

pursuant to the FTCA must provide enough information to permit

the agency to conduct an investigation and to estimate the

claim’s worth.” Mayes v. United States, 790 Fed. App’x. 338,

339-40 (2d Cir. 2020) (summary order) (quoting Romulus v. United

States, 160 F.3d 131, 132 (2d Cir. 1998) (per curiam)). The

relevant inquiry is whether the substance of the administrative

claim, not the federal court complaint, put the relevant federal

agency on notice. Godinez-Torres v. United States, No.

14CV1097CBAPK, 2016 WL 11670284, at *5 n.7 (E.D.N.Y. Mar. 31,

2016). See also M.A.R. ex rel. Reisz v. United States, No. 09-

CIV-1727 (LTS) 2009 WL 3877872, at *1 (S.D.N.Y. Nov. 18, 2009)

(finding plaintiff’s administrative claim was insufficient to

put the government on notice that she might assert a lack of

informed consent claim); A.Q.C. ex rel. Castillo v. United

States, 715 F. Supp. 2d 452, 457 (S.D.N.Y. 2010), aff'd, 656

F.3d 135 (2d Cir. 2011) (holding informed consent claim was

barred because plaintiff’s administrative claim only alleged

medical malpractice); Hersko v. United States, No. 13-CV-3255

(MHD) 2015 WL 6437561, at *19 (S.D.N.Y. Oct. 20, 2015)(same).

But see Soriano, 2013 WL 3316132, at *7 (citing Frantz v. United

States, 29 F.3d 222, 224 (5th Cir. 1994) (finding an informed

consent claim in FTCA action is necessarily contained within a

medical malpractice claim)).

Plaintiff alleges in the administrative claim form

that the treating physicians failed to diagnose and treat her

given her medical history, signs, symptoms, and complaints;

negligently prescribed medication that harmed her; failed to

diagnose her urinary tract infection in time; failed to provide

a prenatal or neonatal consultation; and failed to monitor the

effects of the medications given to plaintiff during childbirth.

(Pl. Exh. 10.) Though the claim adequately refers to negligence

in plaintiff’s medical treatment, it provides no detail as to

any alleged failure on the part of the physicians to obtain

informed consent. (Id.) Plaintiff also does not produce her

medical records to demonstrate a lack of informed consent, nor

does she explain or discuss where and when this alleged omission

occurred. Godinez-Torres, 2016 WL 11670284, at *6 (citing

M.A.R., 2009 WL 3877872, at *4 (holding administrative claim

gave no notice of informed consent claim where claim form “was

replete with allegations of various omissions ... during

prenatal care, delivery and neonatal care” but no language

pertaining to consent)).

Accordingly, the court GRANTS the defense’s motion to

dismiss the plaintiff’s informed consent claim on the grounds

that plaintiff did not exhaust her administrative remedies.

III. Plaintiff’s Negligent Hiring and Retention Claim

A. Two-Pronged Discretionary Function Exception Test

Under the Supreme Court’s Berkovitz-Gaubert test, the

discretionary function exception precludes suits against the

United States “only if two conditions are met: (1) the acts

alleged to be negligent must be discretionary, in that they

involve an ‘element of judgment or choice’ and are not compelled

by statute or regulation and (2) the judgment or choice in

question must be grounded in ‘considerations of public policy’

or susceptible to policy analysis.” Coulthurst v. United States,

214 F.3d 106, 109 (2d Cir. 2000) (citing United States v.

Gaubert, 499 U.S. 315, 322-23 (1991) and Berkovitz, 486 U.S. at

536-37)).

Under the first prong of the test, “it is the nature

of the conduct, rather than the status of the actor” that

determines whether a challenged act is discretionary. Gaubert,

499 U.S. at 322. If there exists a mandatory federal statute,

regulation, or policy that “specifically prescribes a course of

conduct for an employee to follow,” the first prong of the test

requiring an element of judgment or choice is not met because

“the employee has no rightful option but to adhere to the

directive.” Berkovitz, 486 U.S. at 536. If there is no

established explicit or implicit governmental policy, or if a

policy allows a government agent to exercise discretion, then

under the second prong of the Berkovitz-Gaubert test, the court

must determine whether the conduct “can be said to be grounded

in the policy of the regulatory regime,” focusing “not on the

agent’s subjective intent . . . but on the nature of the actions

taken and on whether they are susceptible to policy analysis.”

Gaubert, 499 U.S. at 325. If there exists a regulation allowing

employee discretion, the “very existence of the regulation

creates a strong presumption that a discretionary act authorized

by the regulation involves consideration of the same policies

which led to the promulgation of the regulations.” Gaubert, 499

U.S. at 324 (internal citation omitted).

If the challenged conduct involved an element of

judgment or choice, then under the second prong of the

discretionary function exception test, that judgment or choice

must be grounded in considerations of public policy or

susceptible to policy analysis to be protected by the

discretionary function exception. See Coulthurst, 214 F.3d at

109; Gaubert, 499 U.S. at 325-25; Varig Airlines, 467 U.S. at

814 (noting that the discretionary function exception is

intended to shield from “judicial second-guessing” judgments

“grounded in social, economic, and political policy”).

Accordingly, the second prong of the test

distinguishes between discretionary decisions that are grounded

in public policy considerations, and decisions that are made out

of carelessness or laziness. Gaubert, 499 U.S. at 324-25, 325

n.7 (remarking that while a government agent who drives a car

while on a government mission exercises “discretion” in driving

the car, any decisions made to drive the car are not grounded in

public policy, and therefore the discretionary function

exception would not protect negligent driving).

B. Applying the Discretionary Function Test

In her amended complaint, plaintiff alleges in her

fourth cause of action that defendant negligently “granted

and/or renewed” Dr. Byer’s and Dr. Stanton’s employments without

proper consideration of the doctors’ professional qualifications

or competence. (Amended Compl. at ¶ 61-63.) Defendant argues

that the discretionary function exception to the FTCA bars

plaintiff’s negligent hiring and retention claim. (Def. Mem. at

10-15.) Plaintiff responds that the alleged negligence in

hiring or retaining unqualified physicians does not fall within

the exception, because “scientific or professional judgments,”

especially concerning safety, do not usually implicate policy

decisions. (Pl. Mem. in Opp. at 21.)

To survive a motion to dismiss, a negligent hiring

claim “must allege facts which would support a finding that the

challenged actions are not the kind of conduct that can be said

to be grounded in the policy of the regulatory regime.” Gaubert,

499 U.S. at 324-25. See also Wang v. United States, 61 Fed.

App’x. 757, 759 (2d Cir. 2003) (finding plaintiffs failed to

meet their burden of demonstrating how investigative agents

conduct fell outside the exception). Here, plaintiff merely

asserts that defendant failed to properly investigate the

qualifications and competence of their medical personnel before

granting or renewing their employment, but does not allege any

specific facts or details, or suggest that defendants’ negligent

hiring and retention practices fell outside the exception.

(Amended Compl. at ¶ 61-63); see Saint–Guillen v. United States,

657 F. Supp. 2d 376, 387 (E.D.N.Y. 2009) (Irizarry, J.)(stating

that a pleading deficiency regarding negligent hiring or

retention alone is grounds for dismissal)); see generally

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007)(bare factual

allegations will not satisfy Fed. R. Civ. P. 8, the plaintiff’s

pleading standard).

The court finds that plaintiff failed to plead

sufficient facts to state a claim for negligent hiring. The

court nevertheless briefly addresses the two prong analysis of

the discretionary function test.

First, federally qualified health centers (“FQHCs”),

deemed suitable for federal award coverage under the Public

Service Health Act must comply with specific standards set forth

in the Act and its implementing regulations, including review

and verification of the professional credentials of its doctors.

See 42 U.S.C. § 233(h)(2)(the Secretary must determine “that the

entity...has reviewed and verified the professional credentials,

references, claims history, fitness, professional review

organization findings, and license status of its

physicians....”). See also 42 C.F.R. §§ 51c.101-c.507,

51c.303(p)(stating generally that health centers must “[p]rovide

sufficient staff, qualified by training and experience, to carry

out the activities of the center.”). The Act and corresponding

protocols do not lay out specific means for professional review

or verification, leaving review and verification up to the

discretion of each health center. Moreover, “[w]hen established

governmental policy, as expressed or implied by statute,

regulation, or agency guidelines, allows a government agent to

exercise discretion, it must be presumed that the agent’s acts

are grounded in policy when exercising that discretion.” Conyers

v. United States, 16-CV-2816 (JFB) (SIL) 2018 WL 1157754, at *5

(E.D.N.Y. Jan. 31, 2018).

Here, the HRSA Compliance Manual discusses

requirements for demonstrating compliance with the Public

Service Health Act. See HRSA Health Center Program Compliance

Manual, Ch. 5: Clinical Staffing, available at

https://bphc.hrsa.gov/programrequirements/compliancemanual/chapt

er-5.html#5.1. Under “related considerations,” the manual

describes “areas where health centers have discretion with

respect to decision-making.” Id. Hiring decisions typically

involve a great deal of discretion, including weighing, inter

alia, “budgetary restraints, public perception, economic

conditions, individual backgrounds, office diversity, experience

and employer intuition.” Saint–Guillen, 657 F. Supp. 2d at 387.

Thus, the court finds that because it remains within the

individual FQHC’s discretion to elect to hire their medical

staff, and to determine the ultimate arbiter for review and

verification of the clinical staff, the first prong of the

discretionary function test is satisfied.

Under the second prong, “for a claim of negligent

hiring or supervision to be barred by the discretionary function

exception, the decision to hire or supervise the negligent

employees must be ‘grounded in considerations of public policy

or susceptible to policy analysis.’” Gibbons v. Fronton, 533 F.

Supp. 2d 449, 455 (S.D.N.Y. 2008). Hiring and retention of the

employees of an FQHC usually involve policy decisions that

clearly fall within the scope of the discretionary function

exception. See Burkhart, 112 F.3d at 1217 (stating that hiring

decisions “are surely among those involving the exercise of

political, social, or economic judgment.”). Thus, the court

finds that the negligent hiring claim “necessarily involves the

permissible exercise of policy judgment” which is precisely what

the exception intends to avoid the litigation of. Conyers, 2018

WL 1157754, at *9.

Accordingly, the court finds that plaintiff’s

negligent hiring and retention claim would also be barred under

the discretionary function exception. For the foregoing reasons,

defendant’s motion to dismiss plaintiff’s negligent hiring claim

is GRANTED.

IV. Plaintiff’s Loss of Services and Wrongful Death Claims

A. Loss of Services

Plaintiff alleges that she has been “deprived of her

son’s . . . love, services, affection, society, companionship,

and economic support.” (Amended Compl. at ¶ 75.) Defendant

contends that plaintiff’s loss of services claim must be

dismissed pursuant to New York law that does not permit recovery

for “loss of consortium” actions generally. (Def. Mem. at 16-

18.) Plaintiff broadly responds that “there are no deficiencies

in plaintiff’s wrongful death action that warrant dismissal.”

(Pl. Mem. in Opp. at 19.)

Loss of services is a state law claim, and this court

must apply the relevant state law. See Martell v. Boardwalk

Enterprises, Inc., 748 F.2d 740, 754 (2d Cir. 1984); I.M. v.

United States, 362 F. Supp. 3d 161, 205 (S.D.N.Y. 2019); Thomas

v. New York City, 814 F. Supp. 1139, 1154 (E.D.N.Y. 1993). New

York law “denie[s] recovery for grief, loss of society,

affection, conjugal fellowship and consortium” for death of a

minor family member. Rodriguez v. New York, 10-CV-4661 (JG)

(SMG) 2014 WL 12917808, at *6 (E.D.N.Y. Jan. 24, 2014)

(quoting Gonzales v. New York City Housing Auth., 77 N.Y.2d 663,

667-68 (1991)). See also Gilbert v. Stanton Brewery, 295 N.Y.

270, 273 (1946) (finding no recovery available under New York

law for loss of “minor daughter’s companionship.”); Devito v.

Opatich, 215 A.D. 2d 714 (2d Dep't 1995) (reversing damages

award because loss of minor daughter’s society is not

compensable).

Furthermore, loss of services usually are not

“demonstrable” in the case where a child lived for only an

exceedingly short lifespan, as here, where the evidence

indicates that the decedent only lived for three hours. Charles

v. Suvannavejh, 907 N.Y.S.2d 362, 365 (N.Y. Sup. Ct. 2009)).

See also Parilis v. Feinstein, 49 N.Y.2d 984, 985-86 (N.Y.

1980)(holding when the decedent was an infant, the damages are

still a question of fact, and often difficult to measure).

“Despite the extensive mental anguish suffered by a family as a

result of the death of a young child, there is rarely adequate

proof of economic circumstances justifying a jury to award

damages.” In re Estate of Gayden, No. 2007-1489/C 37 Misc.

3d 1213(A), at *3 (Oct. 9, 2012) (citations omitted).

Plaintiff failed to satisfy the necessary showing of a

loss of pecuniary support from the deceased minor at the

pleading stage. Plaintiff’s complaint states generally that she

was “deprived of . . . economic support,” but does not provide

evidence or facts discussing and detailing services that an

infant who lived for three hours could have provided. (Amended

Compl. at ¶ 75.) As plaintiff did not allege sufficient facts

to demonstrate even “possibility” let alone “probability” of her

loss of services claim, the court finds that the claim fails to

meet the pleading standard necessary to show loss of pecuniary

support. Santoro ex rel. Santoro v. Donnelly, 340 F. Supp. 2d

464, 492-93 (S.D.N.Y. 2004). Therefore, pursuant to New York

state law, plaintiff’s claim for loss of consortium or mental

anguish is not cognizable and she cannot recover for damages.

Accordingly, the court GRANTS defendant’s motion to dismiss the

loss of services claim due to failure to state a claim upon

which relief can be granted.

B. Wrongful Death

In a wrongful death claim, plaintiff bears the burden

of showing “(1) the death of a human being; (2) a wrongful act,

neglect or default of the defendant that caused the decedent's

death; (3) the survival of distributees who suffered pecuniary

loss by reason of the decedent's death; and (4) the appointment

of a personal representative of the decedent.” Cerbelli

v. City of New York, 600 F.Supp.2d 405, 429 (E.D.N.Y.

2009) (internal quotation marks omitted) (citing Chong

v. New York City Transit Auth., 83 A.D.2d 546, 441 N.Y.S.2d 24

(2d Dep't 1981)).

Plaintiff fails to allege “pecuniary damages” caused

by the death of her infant son. See Habrack v. Kupersmith, No.

87 Civ. 4712, 1988 WL 102037, at *2 (S.D.N.Y. Sept. 23, 1988)

(citing Chong, 441 N.Y.S.2d at 26) (dismissing wrongful death

claim for failure to allege “that the[] distributees [of the

Estate] have suffered pecuniary damage by reason of decedent’s

death”). See also Melvin v. Cnty of Westchester, No. 14-CV-2995

(KMK) 2016 WL 1254394, at *22 (S.D.N.Y. Mar. 29, 2016) (denying

dismissal of wrongful death action where plaintiffs properly

alleged damages for loss of “reasonable expectation of support”

as pecuniary losses); Quinn v. U.S., 946 F. Supp. 2d 267, 277

(N.D.N.Y. 2013)). In addition, plaintiff did not have the legal

capacity to bring suit on behalf of the deceased infant’s

estate, where she did not produce letters of administration

appointing her as decedent’s personal representative. N.Y. Est.

Pow. and Trst § 5–4.1; id. at § 1–2.13; N.Y. EPTL § 11–

3.1 (2012); Heath v. Banks, No. 15CV4228CBAMDG, 2016 WL 5716817,

at *5 (E.D.N.Y. Sept. 30, 2016), aff'd, 692 F. App'x 60 (2d Cir.

2017) (quoting Palladino, 590 N.Y.S.2d at 602 (“[o]nly a duly

appointed personal representative may bring suit on behalf of a

decedent” in New York).).

As plaintiff has failed to allege or provide evidence

of her appointment as the personal representative for the Estate

of Mustafa, she lacks the capacity to sue on behalf of the

estate. Accordingly, defendant’s motion to dismiss plaintiff’s

wrongful death claim is GRANTED.

CONCLUSION

For the foregoing reasons, the court GRANTS the

government’s motion to dismiss plaintiff’s informed consent

claim for lack of subject matter jurisdiction pursuant to Rule

12(b)(1); plaintiff’s wrongful death and loss of services claims

for failing to state a claim upon which relief can be granted

under Rule 12(b)(6); plaintiff’s negligence and medical

malpractice claims on behalf of the estate of the deceased

infant; and DENIES the motion to dismiss for plaintiff’s

negligence and medical malpractice claims in her individual

capacity. The parties shall confer and jointly advise the court

via ECF, no later than one week from the date of this decision,

as to how they intend to proceed.

SO ORDERED.

Dated: July 31, 2020

Brooklyn, New York

___________/s/________________

KIYO A. MATSUMOTO

United States District Judge

Eastern District of New York