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S.O. v. United States

United States District Court, D. Massachusetts

February 11, 2016

S.O., by and through her Guardian Ad Litem and next friend, THERESE ROCHE, Plaintiff,



This is an action for medical malpractice under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. Plaintiff Therese Roche, guardian ad litem and next friend of S.O., a minor, alleges that negligent medical care during S.O.’s birth caused S.O. to sustain serious and permanent injuries.

The suit was first filed in Massachusetts Superior Court on July 5, 2012. It named Dr. David Edinburgh, the physician who delivered S.O., and Good Samaritan Medical Center as defendants. In November 2014, plaintiff’s counsel discovered that Dr. Edinburgh was an employee of the federally funded Brockton Neighborhood Health Center, and that the claim was therefore subject to the FTCA.

On May 29, 2015, the Court allowed the substitution of the United States as defendant in place of Dr. Edinburgh pursuant to 28 U.S.C. § 2679(d). The United States has now moved for summary judgment on the ground that plaintiff failed to file an administrative claim within two years as required by the FTCA. For the reasons described below, that motion will be denied.

I. Background

A. The Birth of S.O. and Her Injury

Except where otherwise noted, the following facts are either undisputed or taken in the light most favorable to the plaintiff.

Therese Roche is the guardian ad litem and next friend of S.O., who is a minor. S.O. was born on June 18, 2009, and is the daughter of the late Ana Pires of Malden, Massachusetts.[1] S.O. was born at Good Samaritan Medical Center in Brockton, Massachusetts. She was delivered by Dr. David Edinburgh.

The delivery did not go smoothly. After delivery of the head using forceps, Dr. Edinburgh diagnosed shoulder dystocia, which is a medical condition occurring during birth when the baby’s shoulder is caught under the mother’s pubic bone. After what Dr. Edinburgh described as a “successful release of [the] shoulder dystocia, ” (Edinburgh Consultation Notes, Dkt. 20-6, at 8), and completion of the delivery, an examination of S.O. in the newborn nursery revealed that she had sustained an injury to the brachial plexus on her right side. (Pl. Opp. 4).

The brachial plexus is a bundle of nerves that runs from the neck to the arm. (Supp. Adler Aff. ¶ 4). The particular type of brachial plexus injury is defined by the severity of the injury. When the nerves are pulled, they may stretch, tear, or completely disconnect, depending on the level of the force applied. (Id. ¶¶ 6-9). Brachial plexus injuries may resolve with time and therapy; however, the rate of recovery is inversely proportional to the severity of the injury sustained. (See Id. ¶ 10). A full recovery may take up to 18 to 24 months, and even then a patient may still demonstrate recognizable weakness and disability. (Id. ¶¶ 13-14). The complaint alleges that in attempting to resolve the shoulder dystocia, Dr. Edinburgh applied excessive traction to S.O.’s head, stretching and tearing her brachial plexus.

On July 3, 2009, approximately two weeks after the birth, Pires visited Brockton Neighborhood Health Center for a postpartum visit. She was informed that S.O. would need to begin physical therapy the following week. (Def. Rep. Ex. A at 8). S.O. underwent numerous medical visits and received physical therapy for treatment of the injury. At one such visit on September 8, 2009, neurosurgeon Dr. Liliana Goumnerova of Boston Children’s Hospital explained that “a lot of these will recover on their own with physical therapy and that we will need to reevaluate her as she gets a little bit older.” (Mone Aff. Ex. A at 5).

As time passed, S.O. showed some, but not complete, improvement. On December 14, 2009, when she was about six months old, she was examined by Dr. Peter Waters at Boston Children’s Hospital. (Pl. Supp. Opp. Ex. 11 at 5). Dr. Waters noted that “[t]his is a situation that appears to be resolving if it [is] related to brachial plexus.” (Id.). Unfortunately, the situation did not resolve. One year later, on December 13, 2010, S.O. was evaluated by Dr. David Hay at Boston Children’s Hospital, who noted that she “continues to show no significant active external rotation.” (Id. at 4). At a further examination in September 2011, it was noted that although S.O. “ha[d] shown increased voluntary movement of both hands, ” she continued to “lack[] any active external rotation about her shoulder.” (Id. at 6).

B. The Physician Affidavits

Plaintiff has submitted two affidavits from Daniel Adler, M.D., a board-certified pediatric neurologist. The second, or supplemental, affidavit incorporates the first, and ...

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