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Ford v. United States

United States District Court, D. Maryland

March 4, 2016

ANGELA FORD, et al., Plaintiffs,
v.
UNITED STATES, et al., Defendants.

MEMORANDUM OPINION

GEORGE .J. HAZEL UNITED STATES DISTRICT JUDGE

On September 29, 2009, one week after the uncomplicated delivery of her third child. Plaintiff Angela Ford[1] developed a hemorrhage and suffered a grand mal seizure. There is little. if any, dispute as to that fact. The existence and interpretation of nearly every other fact in the narrative that forms this litigation has been the subject of vigorous debate by the parties and their experts and leaves a number of questions for the Court to answer. Was the treatment provided to Ms. Ford preceding the hemorrhage and seizure on September 28, 2009 appropriate? If not. was any such improper treatment a cause of the hemorrhage and seizure? How significant are the injuries Ms. Ford suffered? Have the injuries healed or will they linger into the future? Are the injuries debilitating or manageable? Are the events of September 28. 2009 a cause of any such ongoing injuries or are they the result of preexisting medical issues, or. perhaps, an independent undiagnosed medical event occurring simultaneously? Many of these questions are, unfortunately, unanswerable in any definitive sense. The Court will nonetheless sift through the testimony and exhibits and. pursuant to Federal Rule of Civil Procedure 52(a)(l).[2] make its findings of fact and conclusions of law as to what are more likely than not the answers to these exceedingly close questions.

1.PROCEDURAL BACKGROUND

Ms. Ford and her then-husband. Nathan Ford (collectively, "Plaintiffs"), initiated this action in September 2011 in the Health Care Alternative Dispute Resolution Office in Baltimore. Maryland, against the United States of America (the "Government") under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346(b). 2671-2680. as well as against Calvert Memorial Hospital of Calvert County ("Calvert Hospital"). Emergency Medicine Associates. P. A., and Matthew Christianson. M.D. (collectively, the "Private Defendants"), seeking to recover for injuries that Ms. Ford sustained which, she claims, were the result of undiagnosed preeclampsia and eclampsia. See generally ECF No. 2. Following removal of the action to this Court. ECF No. 1, Plaintiffs filed an Amended Complaint on March 26. 2012. in which they alleged in Count I that the Private Defendants and the Government breached the standard of care in their treatment of Ms. Ford on September 27 and September 28. 2009, respectively, by failing to diagnose and treat Ms. Ford for preeclampsia and eclampsia after the delivery of her third child, and by failing to treat her elevated blood pressure.[3] ECF No. 42 at ¶ 27. The Amended Complaint further alleges that the failure to render appropriate care was the proximate cause of a hemorrhagic stroke that caused Ms. Ford to suffer from permanent and severe injuries. Id. at w 30. In Count II of the Amended Complaint, Plaintiffs" brought a claim for loss of consortium. After extended pretrial proceedings, the Court presided over a joint jury / bench trial from November 30. 2015 through December 18. 2015.[4]

At the conclusion of trial, the jury returned a unanimous verdict finding that there was no breach of the standard of care by the Private Defendants for the care rendered by Dr. Christianson on September 27. 2009. See ECF No. 224. In accordance with that verdict, the Court will now, by separate Order, enter judgment in favor of the Private Defendants.

On .January 8. 2016. Plaintiffs and the Government submitted proposed findings of fact and conclusions of law, which the Court has reviewed and considered in arriving at its findings and conclusions.[5] See ECF Nos. 233, 234 & 235.

II. FINDINGS OF FACT

A. Personal Background of Angela Ford and Nathan Ford

Although many details of the Fords" lives will be dispersed and expanded upon in various sections of this Memorandum Opinion, it is useful to begin with a brief discussion of the Plaintiffs' personal background to provide some context to the discussion that Follows. Ms. Ford was born on January 28. 1982 and was raised in a suburb outside of Dayton. Ohio. While growing up, she participated in Girl Scouts and the 4-H program and played basketball. When she was in high school, her parents were briefly separated, but they eventually reconciled. During that time, Ms. Ford helped care for an uncle who had been diagnosed with brain cancer until his death. As a result of these stressful circumstances. Ms. Ford began treatment for depression and anxiety.

Ms. Ford attended high school into tenth grade, but that year she became pregnant with her first child and dropped out of school. In November 2000. Ms. Ford gave birth to her son. "AF, "[6] After her son was born, Ms. Ford worked as a waitress and greeter at a restaurant and. one year later, obtained a high school equivalency certificate upon successful completion of General Educational Development ("GED") tests. Beginning in 2002. Ms. Ford attended a community college in Ohio, Sinclair Community College ("Sinclair"), but, after meeting Mr. Ford, she left the school after the spring 2004 semester without completing her degree. As for Mr. Ford, he, too, attended Sinclair, where he obtained certification to be an emergency medical technician ("EMT").

In October 2004, the Fords were married. Having become a father-figure to Ms. Ford's son, Mr. Ford legally adopted AF. The couple then had a second child, another son. "DF." in November 2005.

Mr. Ford had always wanted to serve his country and be a firefighter, and. in 2006. he joined the United States Air Force to fulfill that dream. The Fords had planned that, while Mr. Ford was in the Air Force and their children were young. Ms. Ford would be the primary caregiver of the children. Once the children were all old enough to enter school full-time, Ms. Ford planned to return to school to become a licensed practical nurse ("LPN"). When Mr. Ford was stationed in Maryland, the family relocated there, and Ms. Ford worked as a cashier at a grocery store for a brief period of time. When Mr. Ford was deployed overseas. Ms. Ford left her job at the grocery store so that she could take care of the children.

After Mr. Ford returned from overseas in September 2008. Ms. Ford became pregnant with a third child. Her daughter. "SF, " was born by caesarian section on September 22. 2009. As will be explained in greater detail below, several days after SF's delivery. Ms. Ford experienced a severe headache and had high blood pressure. On September 27. 2009. she sought treatment from the Emergency Department of Calvert Hospital where, after running various tests, she was released with instructions to follow-up the next day with her obstetrician. On September 28. 2009, she presented to the Obstetrics and Gynecology Clinic ("OB Clinic") at Malcolm Grow Medical Center {"Malcolm Grow")[7] with elevated blood pressure and a headache. She was prescribed a low dosage of blood pressure medicine and sent home with instructions to follow-up with a primary care physician within five days. On September 29. 2009. Ms. Ford returned to Malcolm Grow, this time to the Emergency Department, where a CAT scan[8] revealed that Ms. Ford had an intra cerebral hemorrhage. After learning of the hemorrhage, and while still in the hospital. Ms. Ford suffered from a grand mal seizure.

Following this incident. Ms. Ford reported suffering from various ongoing injuries, including severe headaches and migraines, lethargy, and word-finding problems. Mr. Ford, who typically accompanied Ms. Ford to her medical appointments, reported to Ms. Ford's doctors that he witnessed the left side of her face twitching and also witnessed "staring spells" where Ms. Ford would "space out" for short period of times and be unresponsive to touch or speech. After Mr. Ford showed a doctor a video of Ms. Ford's facial twitching. Ms. Ford was treated for epilepsy and instructed that she could not drive until she had been seizure-free for at least six months.

In an effort to better accommodate Ms. Ford's condition. Mr. Ford sought reassignment through the Air Force so that they could relocate to be closer to other family members who could help with childcare and otherwise serve as a support system. When that request was denied. Mr. Ford then sought to separate from the Air Force. When that request was granted, the family relocated to Williamsburg. Virginia in October 2010, where the only nearby family was Ms. Ford's aunt and a cousin she had never met. Around this time. Ms. Ford and Mr. Ford experienced marital difficulties and sought marital counseling. Unable to repair their relationship, the couple separated in 2012 and divorced in May 2013. After the separation and divorce, Ms. Ford continued to be the primary caregiver for the Fords' three children.

At some point in 2012, Ms. Ford met Dwayne Hysmith and she. along with her three children, moved into his home in December of that year. Ms. Ford and Mr. Hysmith began dating and were married in August 2015. and, as of the time of trial, they continued to live together in Virginia with Ms. Ford"s children.

B. Education and Employment

When Ms. Ford was first old enough to begin working, around age sixteen, she began working at a Chick-fil-A. After AF was born, she worked as a greeter and waitress at a restaurant, and. as previously indicated, obtained her GED, passing the GED test without any-prior studying.

Ms. Ford became interested in pursuing a career in nursing after she helped care for her uncle during his battle with brain cancer. After obtaining her GED. she attended Sinclair for seven semesters where she initially received several passing grades in pass/fail courses, as well as As. Bs and Cs. Defense Joint Exhibit ("DJE") No. 38.[9] In her second semester, she completed a nurse aid training course, receiving a B. and she received an A the following semester in a pediatric care assistant course. She thereafter began working at a children's hospital as a nursing assistant. See DJE No. 43. Then, in her final semesters at Sinclair, at which time she was working at the hospital and had begun dating Mr. Ford, she received one D and eight failing grades before leaving school without completing her degree.[10]

After DF was born. Ms. Ford worked as a bookkeeper at Discount Drug Mart in Ohio, and, after the Fords moved to Maryland, she worked as a cashier at a grocery store. See DJE Nos. 35 & 36. Ms. Ford left her job at the grocery store in 2008 when Mr. Ford was deployed, and she has not had any stable employment since then. During at least some part of 2012. however, she occasionally staffed the cash register of a country store next to her house when a friend of hers. who owns the store, would leave to take breaks or run errands. Since April 2014 and continuing up until trial, she has also worked as a "distributor" with Young Living Essential Oils ("Essential Oils"), a company that sells oil products which Ms. Ford consumes to help with her headaches. See DJE No. 6. She became involved with Essential Oils when a friend of hers started selling the product and suggested that she try it. By signing up as a distributor. Ms. Ford can purchase the oils for herself at wholesale prices. The organization of the company is such that when one person, a "sponsor." enlists another distributor, that new distributor is their "downline." When a downline makes a sale, the sponsor receives a percentage commission on that sale. Ms. Ford has signed up some downlines, mostly limited to her immediately family and close friends, but her sponsor has placed additional downlines underneath her in the sales organization, allowing Ms. Ford to receive some commissions for sales made by those individuals. Ms. Ford does not actively sell the product to others, but she promotes Essential Oils on social media websites, such as Pinterest. She spends an hour to an hour and a half per week on the computer to manage her Essential Oils business. In 2014. when she first started as an Essential Oils distributor, her highest monthly commission earning was approximately $114. In 2015. however, her income became more consistent and she earned an average of $556 per month, equating to an earning potential of approximately $6, 600 annually.

C Depression and Anxiety

Beginning around the time of her parents' separation and the death of her uncle, Ms. Ford obtained antidepressants from a family physician, which she took intermittently for several years. She was taking antidepressants when she met Mr. Ford, though he did not observe that the depression and anxiety negatively impacted her life or their marriage.

In June 2007. Ms. Ford visited Malcolm Grow's Primary Care Clinic for treatment of anxiety and depression. The medical note for that visit indicates that Ms. Ford reported taking antidepressants off and on. including I.exapro. Wellbutrin. Pro/ac. Paxil, and Zoloft, and seeing a therapist about two years before. DJE No. 1 at 1. The note also indicates that Ms. Ford reported feeling tired or poorly, having decreased concentration ability, anxiety, depression with intermittent feelings of hopelessness, and low self-esteem. She reported that she had been doing well with Lexapro but ran out of medication one week before. Id. The primary care physician prescribed Celexa and indicated that Ms. Ford would consider therapy. Id. at 2-3.

Ms. Ford returned to the Malcolm Grow Primary Care Clinic in August 2007 for an annual exam. She reported inadequate results with Celexa and was prescribed Lexapro. Id. at 8-10. Ms. Ford obtained refills of the Lexapro prescription in November 2007 and March 2008. though each time the prescribing doctor noted that Ms. Ford required follow up to review her depression management. Id. at 12. 15-16. In April 2008. Ms. Ford obtained a Lexapro prescription for 90 tablets and one refill from a doctor in the Primary Care Clinic who was treating her for back pain. Id. at 17. 19-20. In December 2008, Ms. Ford was seen for depression follow up and the note from that visit indicates that she reported that she had suffered from depression since she was a teenager and that the symptoms were well controlled. The note further indicates that Ms. Ford asked for and was prescribed Buspirone to treat anxiety. Id. at 25-27. She did not. however, undergo any counseling or therapy for depression or anxiety7 during this time.

In February 2009. early in her pregnancy with SF, Ms. Ford completed an Ldinburgh scale form, a screening tool designed to determine depression during pregnancy and in the postpartum period. Tests which produce a score of thirteen or greater out of thirty total points are considered a significant degree of depression, and Ms. Ford's responses produced a score of fifteen. DJE No. 2 at 4. 27. That month. Ms. Ford began taking Zoloft for depression and continued with Buspirone for anxiety. Id. at 23. 29. She was referred to Behavioral Health for depression, see Id. at 23. but she failed to follow up. During her pregnancy with SF. Ms. Ford's depression remained stable while she was on a prescription for Zoloft, and. when the Edinburgh scale test was administered again post-delivery, her score was twelve out of thirty. Id. at 84. 93. 99, 102. 106: DJE No. 4 at 29.

When Ms. Ford sought treatment from the Emergency Department at Calvert Hospital and from the OB Clinic at Malcolm Grow in September 2009. she reported a history of depression. DJE No. 3 at 2. 32. In October 2009. one month after her hemorrhage and seizure, Ms. Ford had her first visit with a neurologist. Rebecca Fasano. M.D.. at Walter Reed Army Medical Center ("Walter Reed"), where she denied feeling more depressed than she felt before giving birth to SF. DJE No. 4 at 21.

Ms. Ford received only sporadic treatment for her depression and anxiety post-hemorrhage and seizure. On four occasions beginning in October 2009 and going through April 2010, she and Mr. Ford were seen in the Malcolm Grow Mental Health Clinic for marital therapy. See DJE No. 4 at 15-18. 117-18, 125-26. 130-31. She also received individual therapy at Malcolm Grow Primary Care Behavioral Health Clinic in January and February 2010. Id. at 60-61, 86-87. She received no further mental health treatment until August 2011. when she and Mr. Ford again went to marital therapy. Id. at 194-96. Ms. Ford has not been treated by any counselor, therapist, or psychiatrist for depression, anxiety, or any other mental health issues since August 2011. and she has not filled any prescriptions for anti-depressants since July 2014.

D. Overview of Relevant Medical Conditions

Because it will be relevant to much of the discussion that follows, it is helpful at this point to provide a brief overview of various medical conditions discussed during trial, and, in particular, medical conditions that are associated with pregnancy.

First, by way of background, hypertension, or high blood pressure, is generally a long-term condition that a person may suffer for years: it is not typically a condition that must be treated on an emergency basis. That said, when an individual has a systolic blood pressureot 180 or greater, or a diastolic pressure of 110 or greater, i.e., 180/110 mm Hg. that person is said to be in a stage of hypertensive urgency; a "normal" or baseline blood pressure is 120/80. If the blood pressure of 180/110 is also accompanied by evidence of end organ damage, for example, damage to the brain, heart, or kidneys, then the patient is in a stage of hypertensive emergency, which requires immediate treatment. Hypertension in pregnancy, in contrast, is defined as a sustained blood pressure of 140/90.

When a pregnant patient has gestational hypertension, the next concern is whether the patient has a syndrome called preeclampsia. Although medical definitions can vary, in general, when a pregnant patient has sustained elevated biood pressures, i.e.. multiple blood pressures exceeding 140/90, and elevated protein in their urine, a symptom known as "proteinuria." the patient is diagnosed with preeclampsia. Although this. too. is subject to some dispute, protein in urine is considered elevated if it exceeds 300 mg over a 24-hour period. A patient with preeclampsia may also have certain laboratory abnormalities showing the existence of HELLP syndrome, which stands for hemolysis, elevated liver enzymes, and low platelet count. Preeclampsia is considered severe if. among other symptoms, the patient's blood pressure exceeds 160/110. or the patient experiences cerebral or visual disturbances, pulmonary edema, or right upper quadrant pain, which may indicate that the liver is swelling. When severe hypertension or preeclampsia goes untreated, it can increase the risk of a brain hemorrhage or stroke. Because preeclampsia typically occurs during pregnancy, it is generally treated by delivering the baby. Preeclampsia can. however, occur during the postpartum period and. for obvious reasons, requires different treatment at that stage. When preeclampsia goes untreated, it can develop into eclampsia, which is essentially preeclampsia plus a seizure.

Although less common, another condition that can be associated with pregnancy is cerebral angiopathy, or Reversible Cerebral Vasoconstriction Syndrome ("RCVS"), which typically presents with a sudden onset headache-a "thunderclap headache."" Cerebral angiopathy causes vasoconstriction, i.e.. the constriction of blood vessels, and can lead to brain edema, stroke, or a brain hemorrhage. Cerebral angiopathy is known to be associated with the use of vasoactive substances, which can have the effect of increasing the degree of vasoconstriction on blood vessels, especially in the brain. Typical vasoactive substances that are commonly used by pregnant and postpartum women include selective serotonin reuptake inhibitors (SSRI). such as Zoloft, and anti-inflammatory drugs for pain relief such as Motrin. Additionally, the body changes that a woman undergoes in the postpartum period may also have a vasoactive effect. After birth, the large volume of tluid that once occupied the placenta is reabsorbed or evacuated from the mother's body. This influx of volume causes changes in vascular tone and hormones that are commonly associated with vasoconstrictive diseases like cerebral angiopathy.

With this in mind, the Court will next turn specifically to the care Ms. Ford received preceding the development of the hemorrhage and seizure.

E. Ms. Ford's Prenatal Care

From February 29. 2009 through September 14. 2009, Ms. Ford received prenatal care through the OB Clinic at Malcolm Grow. The doctor overseeing her prenatal care was Marc Hester, M.D. Ms. Ford's prenatal course was, overall, uncomplicated. D.1E No. 2 at 27-30. 63-69, 82-84, 91-107. 118-20. Her baseline blood pressure during her pregnancy was 129/87. but toward the end of her pregnancy, on August 31. 2009. she had one mildly elevated blood pressure of 140/83. Plaintiffs' Exhibit C'PE") No. 1 at 1034. Out of precaution. Dr. Hester ordered certain lab tests, which revealed that Ms. Ford also had slightly elevated protein in her urine, as indicated by a 24-hour urine protein test, at 303.6 tag/24 h. Id. at 1090. At a later visit. because her blood pressure had lowered to 137/86, id. at 1039. Dr. Hester did not treat Ms. Ford for preeclampsia.

Ms. Ford gave birth to SF on September 22, 2009 and experienced no complications during the scheduled caesarean section. She and her daughter were discharged on Thursday, September 24. 2009 in good health. DJE No. 2 at 124-233.

F. Care at Calvert Memorial Hospital on September 27, 2009 On September 27. 2009, five days post-delivery of her daughter, Ms. Ford began to experience a "terrible'' headache. Because she had never suffered severe headaches or migraines before, Mr. Ford was concerned and decided to take her blood pressure while she sat in a recliner at home. By his measure, her blood pressure was 202/104. Mr. Ford repealed the test an additional four or five times before deciding to bring Ms. Ford to Calvert Hospital, the hospital closest to their home.

Ms. Ford arrived at Calvert around 8:05 p.m. and was admitted to the Emergency Department, where she reported that she had a headache that started at 5:00 p.m. and was a 7 on a pain scale of 1-10. with a 10 being the worst pain she had ever felt. She also reported that she was "feeling weird, " and experiencing nausea. In triage, her blood pressure was measured as 191/104. In her medical history, it was reported that she had a cesarean section five days earlier and that she had a history of depression. PE No. 2 at 2000.

Dr. Matthew Christianson first saw Ms. Ford at 8:20 p.m. that evening, approximately fifteen minutes after she was admitted to the Emergency Department. Ms. Ford again reported that she had a headache and she explained that it had started on the right side but had moved to the frontal portion of her head. She again indicated that the headache started around 5:00 p.m.. and Dr. Christianson's visit note described the headache as being "sudden onset." Id. at 2002. She further stated that she was "tingly all over" and was feeling lightheaded. At that point, her blood pressure had decreased to 151/95 without having received any treatment.

Dr. Christianson examined Ms. Ford, and ordered that she receive intravenous fluids and Phenergan to treat her nausea and headache. Given her symptoms, his differential diagnosis included hypertensive emergency, HELLP syndrome/preeclampsia. and intracranial hemorrhage. Dr. Christianson ordered tests, including lab work and a CAT scan to rule out any medical emergency, all of which produced normal results. See PE 2 at 2015-21. He also ordered a "clean catch" urine sample to test for elevated protein in her urine using a urine dipstick test. A urine dipstick produces one of six results: negative, trace. 1. 2. 3. or 4. Ms. Ford's urine dipstick produced a negative result, indicating that there was no protein in her urine at that time. Id. at 2021. Dr. Christianson did not. however, seek to have Ms. Ford admitted to the hospital so that a 24-hour urine test could be completed, which, at least by some accounts, is a more accurate test for determining whether a patient has proteinuria.

While in the Emergency Department, Ms. Ford's blood pressure was measured four additional times at 9:40 p.m., 10:05 p.m.. 10:30 p.m. and 11:30 p.m.. and those measurements were 154/78, 162/85, 164/89. and 151/87. respectively. Id. at 2001. Ms. Ford was discharged from Calvert Hospital at 11:30 p.m. with a prescription for Compazine to aid with her nausea and headache and with instructions to follow up with her obstetrician in one to two days. Id. at 2003-04, 2007-08; see also DJE No. 3 at 3-28.

G. Care at Malcolm Grow Medical Center on September 28 and September ...


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