United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
J. Casper United States District Judge.
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.
Standard of Review
“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.
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.
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.
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.
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.
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.
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.
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.
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 ...