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Ezike v. Bliss

United States District Court, D. Massachusetts

May 5, 2017

VENATIUS EZIKE, et al., Plaintiffs,
v.
BRENDA ANNE BLISS, Defendant.

          MEMORANDUM AND ORDER

          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiffs Venatius Ezike (“Ezike”), Joy Ehirim (“Ehirim”), minor child V.E. and minor child C.E. (collectively, “Plaintiffs”) have filed this lawsuit against Brenda Anne Bliss (“Bliss”), alleging three counts of negligence and three counts of loss of consortium. D. 1 ¶¶ 43-76. Bliss has moved for abstention and dismissal pursuant to Colorado River Water Conservation District v. United States, 424 U.S. 800, 817 (1976). D. 16. For the reasons stated below, the Court DENIES the motion.

         II. Standard of Review

         Generally, “federal courts must abide by their ‘virtually unflagging obligation' to exercise their lawful jurisdiction and resolve the matters properly before them.” Nazario-Lugo v. Caribevisión Holdings, Inc., 670 F.3d 109, 114 (1st Cir. 2012) (quoting Colo. River, 424 U.S. at 817). “This duty, however, is not absolute” and certain exceptional circumstances warrant departure from the general rule. Id. at 114-15 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 716 (1996)). “Over time, categories of cases have emerged illustrating when abstention may be appropriate” including categories of abstention like Pullman, Burford and Younger. Id. at 115 (citations omitted). Colorado River abstention “allows federal courts in limited instances to stay or dismiss proceedings that overlap with concurrent litigation in state court.” Jiménez v. Rodríguez-Pagán, 597 F.3d 18, 21 (1st Cir. 2010). The Court must only depart from its obligation to exercise jurisdiction after carefully considering both its obligation to do so and the combination of factors that would counsel against such exercise. Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 71-72 (1st Cir. 2005) (citing Colo. River, 424 U.S. at 818). “Only the clearest of justifications will warrant” abstention and “[t]he district court's discretion . . . should be heavily weighted against dismissal.” Id. at 71(quoting Colo. River, 424 U.S. at 81; citing KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d 1, 10 (1st Cir. 2003)); see Nazario-Lugo, 670 F.3d at 115.

         III. Factual Background

         Unless otherwise noted, the following facts are taken from the Plaintiffs' complaint, D. 1, and are presumed to be true for the purpose of considering the motion to dismiss.

         On September 9, 2013, Brigham and Women's Hospital (“BWH”) admitted Ehirim at almost forty weeks pregnant due to complaints of spontaneous rupture of membranes with moderate vaginal bleeding and contractions. Id. ¶ 9. Later that day, Ehirim gave birth to V.E. via C-section delivery. Id. ¶ 10. From September 10, 2013 through September 12, 2013, Ehirim informed the medical providers that V.E. was sleepy and having difficulty breastfeeding. Id. ¶ 11. Despite Ehirim's reports, nurses observed that V.E. was breastfeeding well. Id. ¶¶ 12-13. Prior to 4:00 p.m. on September 10, 2013, V.E.'s chart noted that she had five good breastfeedings. Id. ¶ 18. Thereafter, on the evening of September 10th, Nurse Sullivan noted several observations in V.E.'s chart including that V.E.'s breastfeeding was “poor.” Id. ¶¶ 20-21.

         On September 11, 2013, Bliss, a registered nurse who was licensed to practice in the Commonwealth of Massachusetts, id. ¶ 8, treated Ehirim and V.E., id. ¶ 22. That same day, V.E.'s body weight dropped below her birth weight. Id. ¶ 23. Despite several poor feedings, no one checked V.E.'s blue glucose levels. Id. ¶ 24. At around 12:00 a.m. on September 11th, a medical provider-possibly Bliss-recorded that V.E. had not nursed in eight hours and that Ehirim was reporting V.E. was having trouble latching. Id. ¶ 25. Despite this, no one checked V.E.'s blood glucose level and a physician was not notified of this long period of time between feedings. Id.

         On both September 11 and September 12, 2013, V.E. had signs and symptoms of hypoglycemia, including difficulty latching, poor feeding, weight loss and long periods of time between feedings. Id. ¶ 26. In the afternoon on September 12, 2013, Nurse Kent recorded that V.E.'s breastfeeding was poor. Id. ¶ 27. Between noon and 12:30 p.m. that day, V.E. changed color. Id. ¶ 28. At that time, Nurse Vixama noted in V.E.'s chart that “[m]other stated ‘[b]aby is changing color, '” that the V.E. was mucousy, noted jaundice and that a “Dr. Johnson” had been notified. Id. ¶ 29. At 4:00 p.m. on that same day, Ehirim and Ezike paged the BWH nurses after noticing that V.E. was twitching and turning blue. Id. ¶¶ 30-31. This occurred five more times, at which point Ehirim paged the nurses each time for assistance. Id. ¶¶ 31-32. After the fifth time, Nurse Gibbons examined V.E., recorded twitching in V.E.'s left eye and arm in V.E.'s medical chart and called the NICU for an evaluation. Id. ¶ 33.

         At this point, V.E. was transferred from the nursery to NICU triage. Id. ¶ 34. While in the NICU triage, V.E. had two generalized seizures and was given phenobarbital. Id. ¶ 35. By 10:15 p.m. on September 12, 2013, V.E.'s blood glucose levels were less than twenty. Id. ¶ 37. After being given fluids, V.E.'s blood glucose level rose to thirty-two. Id. After being given a second round of fluids, V.E.'s blood glucose level rose to seventy-six. Id.

         On September 15, 2013, an MRI of V.E. revealed white brain matter injury and evidence of stroke. Id. ¶ 39. Medical providers diagnosed V.E. with hypoglycemia which had led to seizure, stroke and white matter injury. Id. ¶ 40. As a result, V.E. continues to suffer from white matter brain injury which has manifested into several permanent physical and medical problems including speech and other cognitive delays. Id. ¶ 41.

         Plaintiffs assert that had Bliss recognized the symptoms and risk of hypoglycemia- including that V.E. was feeding poorly, going for periods lasting over four hours before feedings, losing weight and twitching-and had taken certain medical interventions, V.E.'s hypoglycemia would have been diagnosed and treated before it caused V.E. to have seizures and a stroke. Id. ¶ 43.

         In addition to bringing this action against Bliss in this Court, Plaintiffs have filed another lawsuit for negligence and loss of consortium against other medical providers. D. 16-3. Specifically, on the same day that Plaintiffs filed this lawsuit in this Court, they also brought negligence and loss of consortium claims ...


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