FAYE M. GOODIE, individually and as Personal Representative of the estate of MAURICE L. JOHNSON; MAURICE SCOTT; TIFFANY JOHNSON; and SHELLY JOHNSON, Plaintiffs,
UNITED STATES OF AMERICA, Defendant.
Richard D. Bennett United States District Judge.
The Plaintiffs, Faye M. Goodie, individually and as Personal Representative of the estate of Maurice L. Johnson; Maurice Scott; Tiffany Johnson; and Shelly Johnson (“Plaintiffs”), filed this action against the United States of America (“United States” or “Defendant”), alleging claims of medical malpractice and wrongful death related to the medical treatment that the decedent Maurice L. Johnson (“Mr. Johnson” or “Decedent”) received at the Veterans Administration Medical Center (“VA Medical Center”) in October 2007. As these tort claims are brought against the United States pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (“FTCA”), federal jurisdiction is proper under 28 U.S.C. § 1402(b).
Prior to conducting a five-day bench trial from August 12 through August 16, 2013, the procedural posture in this case is as follows. The Plaintiffs filed a Complaint against the United States on December 13, 2010. See Compl., ECF No. 1. The United States filed an Answer on March 2, 2011. See Answer, ECF No. 4. Briefly, the Complaint alleged that Mr. Johnson, a veteran with a history of vascular bypass surgery and an aortic graft,  presented to the VA Medical Center on October 5, 2007, and October 9, 2007. On the first visit, he was treated by Comfort Onyiah, M.D. (“Dr. Onyiah”), a medical resident. Compl. ¶ 7. On the second visit, he was seen by another medical resident, Ethel Weld, M.D. (“Dr. Weld”), who was working with John Flanigan, M.D. (“Dr. Flanigan”), an attending physician from the University of Maryland Medical Center (“UMMC”). Id. ¶ 8. The Plaintiffs further initially alleged that on both occasions the doctors who saw him failed to properly diagnose his condition, perform the appropriate diagnostic tests, and recognize the seriousness of his condition. See Id . ¶ 15. About twenty-two hours after being discharged from the hospital on his second visit, Mr. Johnson began to suffer hematemesis, which is the vomiting of blood. He died at 1:35 a.m. on the morning of October 11, 2007. Id. ¶ 13.
On June 8, 2010, the United States filed a Motion for Summary Judgment (ECF No. 17), asserting six separate arguments. First, the United States argued that partial summary judgment should be entered in its favor for any claims of negligence relating to the medical treatment provided by Dr. Onyiah on October 5, 2007. Second, the United States argued that it was not liable for the alleged negligence of Dr. Weld on October 9, 2007, because she was acting as the “borrowed servant” of Dr. Flanigan. Third, the United States maintained that the Plaintiffs and their experts had admitted that Dr. Flanigan was not negligent, and therefore Dr. Weld, privy to the same information as Dr. Flanigan, could not be negligent under Maryland law. Fourth, the United States asserted that summary judgment should be entered because Dr. Weld did not breach any standard of care. Fifth, the United States claimed that the Plaintiffs could not demonstrate that any alleged breach by Dr. Weld was the proximate cause of Mr. Johnson’s injuries, alleging that Dr. Flanigan made the ultimate decision to discharge Mr. Johnson. Finally, the United States sought partial summary judgment as to the Plaintiffs’ four wrongful death claims, because Maryland law requires that wrongful death claims be filed within three years of the decedent’s death. See Md. Code Ann., Cts. & Jud. Proc. § 3-904(g).
On March 12, 2013, this Court granted in part and denied in part the Defendant’s Motion for Summary Judgment. See Summ. J. Op. & Order, ECF Nos. 24 & 25. Specifically, this Court granted partial summary judgment as to the Plaintiffs’ negligence claim relating to Dr. Onyiah’s treatment of Mr. Johnson on October 5, 2007. Based on admissions by the Plaintiffs’ experts, it was undisputed that Dr. Onyiah met the standard of care in her treatment of Mr. Johnson.
However, this Court rejected all other arguments for summary judgment. Most importantly, this Court ruled that the borrowed servant doctrine did not apply in this case. The United States had argued that Dr. Weld, a resident from the University of Maryland Medical Center (“UMMC”), was at all relevant times acting as the “borrowed servant” of the attending physician Dr. Flanigan. Dr. Flanigan is an attending physician from UMMC, which had contracted to furnish emergency room physician services to the VA Medical Center. Because Dr. Weld was working under the direction of Dr. Flanigan, and because the “controlling policy documents” indicated that Dr. Flanigan was generally responsible for the care of emergency room patients, the United States asserted that it was not liable for the alleged negligence committed by Dr. Weld, and any cause of action lay with UMMC.
Instead, this Court held that the Resident Agreement controlled. The Resident agreement, which was entered into by the VA Medical Center, UMMC, and University of Maryland School of Medicine, enabled residents in UMMC’s Department of Internal Medicine to gain clinical experience by rotating through the VA Medical Center. See Pls.’ Ex. 28. Crucial to this issue, the Resident Agreement provided that residents would be “Hospital employees” and specifically provided that “their activities within the scope of their Hospital duties [would] be covered by the Federal Tort Claims Act.” Id. ¶ III.F. Under Maryland law, “whatever the status of an employee under the ‘borrowed servant’ doctrine, the parties may allocate between themselves the risk of any loss resulting from the employee’s negligent acts.” Krzywicki v. Tidewater Equip. Co., Inc., 600 F.Supp. 629, 639 (D. Md. 1985), aff’d, 785 F.2d 305 (4th Cir. 1986); see also NVR v. Just Temps, N.C. , 31 F. App’x 805, 807 (4th Cir. 2002) (“[I]f the parties contractually agreed that one or the other of them should bear the risk of a particular employee’s negligent acts, that employee’s status under the borrowed servant doctrine is immaterial.”). Because the Resident Agreement clearly allocated the risk of any such negligence by residents like Dr. Weld to the United States, the borrowed servant doctrine has no application to this case. See Summ. J. Op. 25-26.
Further, this Court identified genuine issues of material fact with respect to whether Dr. Weld breached the standard of care in her treatment of Mr. Johnson and whether that breach was the proximate cause of Mr. Johnson’s injuries. Finally, the Plaintiffs’ wrongful death claims were not time-barred, because they first filed their claims with the Maryland Health Care Alternative Dispute Resolution Office, as Maryland law requires, on September 29, 2010. See Md. Code Ann., Cts. & Jud. Proc. § 3-2A-04. That date was within the three-year limitations period for wrongful death claims, as Mr. Johnson passed away on October 11, 2007.
Accordingly, the claims of negligence and wrongful death against the United States, arising out of the alleged actions of its employee Dr. Weld, proceeded to a five-day bench trial, from August 12 through August 16, 2013. At trial, the United States was not permitted to rely on the defense of the borrowed servant doctrine, as this Court found that defense wholly inapplicable under Maryland law. See Summ. J. Op. 25-26.
The Plaintiffs called six fact witnesses, including Faye M. Goodie, Maurice Scott, Tiffany Johnson, and Shelly Johnson, Mr. Johnson’s four adult children. They also called Michael Whitehead, an employee of Maryland Management Company, where Mr. Johnson previously worked in maintenance, and Elouise Scott, the mother of Faye Goodie and Maurice Scott. In addition, four experts testified for the Plaintiffs: Paul A. Skudder, M.D. (“Dr. Skudder”), who is board certified in general surgery and vascular surgery; Lawrence E. Holder, M.D. (“Dr. Holder”), who is board certified in radiology; Kenneth Larsen, Jr., M.D. (“Dr. Larsen”), who is board certified in emergency medicine; and Gary Witman, M.D. (“Dr. Witman”), who is board certified in internal medicine and practiced in emergency medicine.
The United States called five fact witnesses: Dr. Ethel Weld; Dr. John Flanigan;Audrey M. Pinnock, RN, and Karen Hall, RN, the VA Medical Center nurses who treated Mr. Johnson on October 9, 2007; and Dr. Sandra Marshall. One expert, Dr. Shan Haider (“Dr. Haider”), testified for the defense. Dr. Haider is board certified in general surgery and vascular surgery.
Based on the exhibits introduced into evidence, the testimony of the fact and expert witnesses, the written submissions of the parties, and the oral arguments of counsel, the following constitutes this Court’s findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure. The accompanying Order enters Judgment in favor of the Plaintiff, Faye M. Goodie, as Personal Representative of the Estate of Maurice L. Johnson, and against the Defendant the United States of America, on Count I of the Plaintiffs’ Complaint, for Mr. Johnson’s personal injuries. The Order also enters Judgment in favor of the Plaintiffs, Faye M. Goodie, Maurice Scott, Tiffany Johnson, and Shelly Johnson, and against the Defendant the United States of America, on Counts II, III, IV, and V, for the wrongful death of Mr. Johnson.
I. FINDINGS OF FACT
A. Background Information
Maurice L. Johnson (“Mr. Johnson”), the Decedent, was born on May 17, 1948. He served in the United States military from 1968 through 1970 and from 1974 through 1984. He died on October 11, 2007. At the time of his death, he had been living at the Maryland Center for Veteran Education and Training (“Mcvets”), at 301 N. High Street, Baltimore, Maryland 21202 since September 11, 2007. See Pls.’ Ex. 1, at 69; Pls.’ Ex. 7; Testimony of Faye Goodie.
Mr. Johnson had four adult children who are the Plaintiffs in this case. His eldest child is Faye M. Goodie. Faye M. Goodie was born on December 26, 1965. She is the Personal Representative of Mr. Johnson’s estate. See Pls.’ Ex. 8. Mr. Johnson had one son, Maurice Scott, born January 30, 1967. Mr. Johnson had two other daughters, Tiffany Johnson, born November 12, 1970, and Shelly Johnson, born March 24, 1974. See Testimony of Faye M. Goodie, Maurice Scott, Tiffany Johnson & Shelly Johnson.
The Veterans Administration Medical Center (“VA Medical Center”) is a United States military hospital in Baltimore, Maryland. In October 2007, Ethel Weld, M.D. (“Dr. Weld”) was an employee of the VA Medical Center and as such, received the protection of the Federal Tort Claims Act (“FTCA”). See Pls.’ Ex. 28, Resident Agreement ¶ III.F. Under the FTCA, the United States assumes liability for the wrongful acts or omissions of an “employee” of the United States “while acting within the scope of his office or employment.” 28 U.S.C. § 1346(b)(1). Pursuant to the Resident Agreement between the University of Maryland Medical Center, the University of Maryland School of Medicine, and the VA Medical Center, Dr. Weld was responsible for the evaluation, treatment, and disposition of patients whom she saw in the emergency room. See Pls. Ex. 28, Resident Agreement at 13.
B. Mr. Johnson’s Aorta-Bifemoral Bypass Procedure and Graft in July 2002
In July 2002, Mr. Johnson went to the Veterans Administration Medical Center (“VA Medical Center”), where he was diagnosed with an acute aortic occlusion and left lower extremity ischemia. See Pls.’ Ex. 1, at 202-06. He underwent an aorta-bifemoral bypass procedure in which the surgeon used a graft, running from the aorta to the femoral arteries in each leg, as a replacement arterial structure to bypass the occlusion and restore normal blood flow to Mr. Johnson’s lower body. Id. The surgery was completed without any problem. Id.
C. Secondary Aortoenteric Fistula: A Known Complication of Aortic Graft Surgery
A known complication of an aortic graft surgery is a secondary aortoenteric fistula (“AEF”). See, e.g., Pls.’ Ex. 25, Vikram S. Kashyap, MD & Patrick J. O’Hara, MD, Aortoenteric Fistulae, in Rutherford’s Vascular Surgery (6th ed. 2005) [hereinafter “Rutherford”]; Pls.’ Ex. 24, G. Patrick Clagett, Aortic Graft Infections, in Complications in Vascular Surgery (Jonathan B. Towne & Larry H. Hollier, eds., 2d ed. 2004) [hereinafter Towne & Hollier]; Testimony of Drs. Skudder & Larsen. In general, there are two types of AEF: primary AEF, which occurs spontaneously with aortic or gastrointestinal disease, and secondary AEF, which occurs after prior aortic graft surgery. Rutherford 902-05. The prevalence of primary AEF is somewhere between 0.04 to 0.07 percent; secondary AEF is more common than primary, though still quite rare, occurring in approximately 0.4 to 1 percent of patients with a history of aortic graft. Id.
AEF is called “secondary AEF” when it is caused by an infection around or in the graft or by mechanical erosion of the graft. See Id . at 903-04; Towne & Hollier 318, 320. A secondary AEF occurs, on average, two to six years after aortic graft surgery and is a life-threatening complication. Rutherford 905. The main clinical manifestation of an AEF is gastrointestinal bleeding. Id. An AEF requires early surgical intervention; the risk of mortality is high if surgery is not performed promptly. Id. at 908; Towne & Hollier 317. Early diagnosis of an AEF is, therefore, crucial. Towne & Hollier 321; Testimony of Drs. Skudder, Larsen & Witman.
Clinical signs of an AEF are variable and can be subtle. Rutherford 905; Towne & Hollier 321. For this reason, the diagnosis requires a high degree of suspicion on the part of the doctor. Rutherford 902. Any patient who has a history of an aortic graft surgery and presents with evidence of gastrointestinal bleeding should be assumed to have an AEF. Towne & Hollier 320. Although endoscopy is the most commonly performed preoperative test for evaluating whether an AEF is occurring, Rutherford explains that a CT scan with contrast has emerged as a good study to complement endoscopy, is likely the most reliable test, and has grown to be used in widespread fashion to diagnose an AEF prior to surgery. Rutherford 906. Towne & Hollier considers CT scanning “the mainstay of diagnostic imaging for a suspected graft infection.” Towne & Hollier 321. Likewise, Dr. Skudder, Dr. Larsen, and Dr. Witman all testified that the standard of care for an emergency room doctor suspicious of an AEF is ordering a CT scan with contrast to evaluate the graft’s integrity. Testimony of Drs. Skudder, Larsen & Witman. Dr. Skudder, in particular, testified that a CT scan with contrast had become “universally employed” since 2000. Testimony of Dr. Skudder.
A secondary AEF can be preceded by a limited bleeding episode, called a sentinel or herald bleed. Rutherford 905-06. If a patient presents with a herald bleed but is hemodynamically stable,  there is likely time to complete a work-up and obtain surgical treatment before the onset of massive bleeding. See id.; Testimony of Drs. Skudder & Haider.
D. Mr. Johnson’s Treatment at the VA Medical Center in January 2006
On January 31, 2006, Mr. Johnson returned to the VA Medical Center. See Id . at 82-84. He presented to the emergency room with complaints of worsening left pectoral chest wall pain. Id. Mr. Johnson was evaluated by a medical resident, Douglas Sward, M.D., who ordered a computerized tomography, otherwise known as a CT scan. Id. Importantly Dr. Sward ordered that the CT scan be with intravenous contrast of the chest, abdomen, and pelvis, in order to evaluate the graft and check for possible aortic dissection or aneurysm. Id. The CT scan with contrast, as documented in the radiology report, showed no evidence of aortic dissection or aneurysm, and the graft was found to be without any problem. See Id . at 2A-2D.
Hematologic lab studies were also performed, and they came back negative for blood loss. Mr. Johnson’s hemoglobin and hematocrit were within normal levels. See Id . at 3. Specifically, his hemoglobin level was at 14.6, and his hematocrit level was 43.9. Id. For a male, the normal hemoglobin levels fall ...