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Glover v. United States

United States District Court, D. Maryland, Southern Division

January 27, 2014

JENNIE J. GLOVER, et al., Plaintiffs,
v.
UNITED STATES OF AMERICA, Defendant

Page 373

For Jennie J. Glover, Individually, Jennie J. Glover, As Personal Representative of the Estate of Jillian Angel McCormack, Jennie J. Glover, As Personal Representative of the Estate of Julianne Faith McCormack, Plaintiffs: Andrew George Slutkin, LEAD ATTORNEY, Silverman Thompson Slutkin and White, Baltimore, MD; Anne E Brown, PRO HAC VICE, Ryan and Brown PA, St Paul, MN.

Jeffrey Alan McCormack, To the use of:, Plaintiff, Pro se, Colonial Beach, VA.

For United States of America, Defendant: Jason Daniel Medinger, LEAD ATTORNEY, Allen F Loucks, Office of the United States Attorney, Baltimore, MD.

OPINION

MEMORANDUM OPINION

Page 374

Paul W. Grimm, United States District Judge.

This Memorandum Opinion disposes of Defendant United States of America's Partial Motion to Dismiss, ECF No. 9, and accompanying Memorandum, ECF No. 9-1; Plaintiffs' Opposition, ECF No. 11, and accompanying Memorandum, ECF No. 11-1; and Defendant's Reply, ECF No. 19. A hearing is not necessary. See Loc. R. 105.6. For the reasons stated below, Defendant's Partial Motion to Dismiss shall be DENIED.

I. BACKGROUND

For purposes of considering Defendant's Motion, this Court accepts the facts that Plaintiffs alleged in the Complaint as true. See Aziz v. Alcolac, Inc., 658 F.3d 388, 390 (4th Cir. 2011). Decedents Julianne Faith McCormack (" Julianne" ) and Jillian Angel McCormack (" Jillian" ) were the children of Plaintiffs Jeffrey A. McCormack and Jennie J. Glover. Compl. ¶ ¶ 4, 7, ECF No. 1. Because Mr. McCormack was a servicemember in the United States Armed Forces, his then-wife, Ms. Glover, received health care from the National Naval Medical Center (" NNMC" ) in Bethesda, Maryland. Id. ¶ 21. Following years of infertility, Ms. Glover discovered she was pregnant in December of 2009. Id. ¶ 20. She received an ultrasound at the NNMC, which showed a normal twin pregnancy. Id. ¶ 22. Two more ultrasounds yielded normal results: one later in December and one in February of 2010. Id. ¶ ¶ 22-24. The February ultrasound was conducted and interpreted by Dr. Kimberly Hickey, id. ¶ 25, a medical doctor employed at the NNMC, id. ¶ 19.

On March 24, 2010, Dr. Hickey performed another ultrasound on Plaintiff, from which Dr. Hickey concluded that " both Julianne and Jillian had adequate growth" and that Ms. Glover's cervical measurement was normal. Id. ¶ 25. The day after the last ultrasound, Ms. Glover reported to Triage at the NNMC with a loss of amniotic fluid, prolapsed amniotic membranes, a dilated cervix, and a problem with the membrane surrounding one of her twins, and she was admitted to the hospital. Id. ¶ ¶ 26-28. Julianne was born on March 30, 2010 and died twenty-three days later as a result of complications incident to her premature birth. Id. ¶ ¶ 30, 32-33. Jillian was born on April 1, 2010 and died only twenty-three minutes later, also as a result of complications incident to her premature birth. Id. ¶ ¶ 36-37. Both twins were born at under twenty-four weeks' gestation. Id. ¶ ¶ 30, 36. According to Plaintiffs, " [h]ad defendant's employee properly interpreted the March 24, 2010 ultrasound and provided for follow-up treatment as required by the applicable standard of care, Julianne [and Jillian] would have remained in utero until a point where when born, [they] would have survived and been neurologically intact." Id. ¶ ¶ 34, 39.

Ms. Glover, for herself and each of the twins, filed claims with the Department of the Navy, which were denied on December 10, 2012. Id. ¶ ¶ 12-13. After reconsideration, the Navy issued its final denial on February 19, 2013. Id. Then, Ms. Glover timely filed two actions in the Health Care Alternative Dispute Resolution Office, which were transferred to this Court. Id. ¶ 14. Her four-count complaint against the United States under the Federal Tort Claims Act, 28 U.S.C. § § 1346(b), 2671-2680 (" FTCA" ), alleges: (1) medical malpractice (survivor action) on behalf of the estate of Julianne, (2) wrongful death on behalf of Ms. Glover individually for the

Page 375

death of Julianne, (3) medical malpractice (survivor action) on behalf of the estate of Jillian, and (4) wrongful death on behalf of Ms. Glover individually for the death of Jillian. Id. Ms. Glover lists Jeffrey A. McCormack as a " use" plaintiff, although he has not joined this action, and he did not join the administrative proceedings below. The United States filed the pending motion to ...


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