United States District Court, D. Maryland
P. Gesner, Chief United States Magistrate Judge
Warren Walker, Jerry Dorsey, and Jalisa Carrington brought
this negligence action against the United States of America,
through its agents and agencies, including the U.S.
Department of Health and Human Resources, which operated and
funded the Baltimore Medical System and the Belair-Edison
Family Health Center. This Memorandum Opinion and the Order
that accompanies it address plaintiffs' claim.
April 5, 2018, with the consent of the parties, this matter
was referred to the undersigned for all proceedings. (ECF
Nos. 26, 35, 36). On September 26, 2018, and September 27,
2018, a two-day bench trial was conducted. (ECF Nos. 45, 46).
I have carefully considered the exhibits admitted into
evidence (Joint Exhibits 1-3, Plaintiffs' Exhibits 1-5,
Defendant's Exhibits 1, 3), the testimony of the
witnesses (Dr. Carissa Guishard-Gibson, Dr. Marc Itskowitz,
Jerry Dorsey, Warren Walker, Jalisa Carrington, Dr. Michael
Hattwick, and Dr. E. James Britt), and the written
submissions of the parties. For the reasons set forth below,
I find that plaintiffs have failed to establish their claim
for negligence. Pursuant to Rule 52 of the Federal Rules of
Civil Procedure, my findings of fact and conclusions of law
are set forth separately below.
FINDINGS OF FACT
August 18, 2014, Vanessa Kelly, aged 62 years old, attended a
3:15 p.m. scheduled appointment at the Belair-Edison Family
Health Center (“BEFHC”). BEHFHC is a delivery
site for the Baltimore Medical System, which is eligible for
Federal Tort Claims Act (“FTCA”) coverage by the
Secretary of Health and Human Services (“HHS”)
pursuant to the Federally Supported Health Centers Assistance
Act (“FSHCAA”). Ms. Kelly was treated by Carissa
Guishard-Gibson, M.D., an employee of the Baltimore Medical
System. Ms. Kelly reported to Dr. Guishard-Gibson that she
was experiencing shortness of breath (“SOB”) that
had worsened over the past week and that intensified after
taking a few steps. Ms. Kelly reported that the severity of
her SOB was 9. Ms. Kelly also complained of pleuritic pain, a
cough that was initially productive but then dry, wheezing,
medical assistant took Ms. Kelly's vital statistics:
blood pressure 122/80, pulse 97, oxygenation 95% on room air,
and respirations 20. Ms. Kelly's history was also taken
and Ms. Kelly reported that she had hypertension but that she
rarely took her blood pressure medication. Dr.
Guishard-Gibson physically examined Ms. Kelly by listening to
her heart and lungs. Dr. Guishard-Gibson documented Ms.
Kelly's respiratory and cardiovascular findings as
normal. Dr. Guishard-Gibson also noted that Ms. Kelly did not
appear sick as though having pneumonia or an upper
respiratory infection. Dr. Guishard-Gibson diagnosed Ms.
Kelly with acute SOB and prescribed bronchodilators and a
cough suppressant. She also ordered a chest x-ray and told
Ms. Kelly to follow-up with her primary care physician within
a week. Dr. Guishard-Gibson generated a patient note for Ms.
Kelly at 4:12 p.m. following the conclusion of Ms.
Kelly then drove herself and her adult daughter, Jalisa
Carrington, to Walmart to fill her prescriptions. Ms. Kelly
shopped while waiting for her prescriptions to be filled, but
her condition began to deteriorate. At 5:34 p.m., 911 was
called. An ambulance arrived at 5:40 p.m. and emergency
medical services (“EMS”) workers began to
administer medical care to Ms. Kelly. The ambulance arrived
at Franklin Square Hospital (“FSH”) at 6:01 p.m.
arrival at FSH, Ms. Kelly was admitted, and hospital
physicians ordered tests including a chest x-ray,
echocardiogram, computed tomography (“CT”)
angiography, and blood tests. At 7:28 p.m., Ms. Kelly went
into cardiac arrest. The emergency room physicians
administered a thrombolytic agent, tissue plasminogen
activator (“tPA”), and at 7:50 p.m., a consistent
pulse was established. At 9:25 p.m., Ms. Kelly was
transported to the intensive care unit (“ICU”).
At 10:38 p.m., Ms. Kelly went into cardiac arrest again. The
doctors were unable to resuscitate her, and Ms. Kelly was
pronounced dead at 11:02 p.m. An autopsy revealed that Ms.
Kelly had both acute and chronic pulmonary emboli. The cause
of Ms. Kelly's death was recorded as “due to (or as
a consequence of) pulmonary embolus.” (Plaintiffs'
LEGAL ANALYSIS AND CONCLUSIONS OF LAW
Federal Tort Claims Act (“FTCA”) contains a
limited waiver of sovereign immunity of the United States in
tort matters, making the United States liable “in the
same manner and to the same extent as a private individual
under like circumstances.” 28 U.S.C. § 2674. The
FTCA provides for money damages for negligence of employees
of the United States, acting within the scope of their
employment, “under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred.” 28 U.S.C. § 1346(b);
Miller v. United States, 308 F.Supp.2d 604, 607 (D.
Md. 2003). Because the medical treatment at issue in this
case occurred in Maryland, Maryland law regarding the
substantive elements of medical negligence applies.
Goodie v. United States, No. RDB-10-3478, 2013 WL
968198, at *4 (D. Md. March 12, 2013) (citing
Miller, 308 F.Supp.2d at 607).
medical malpractice action, plaintiffs must show by a
preponderance of the evidence (1) the applicable standard of
care, (2) that this standard has been violated, and (3) a
causal relationship between the violation and the harm
complained of. See Fitzgerald v. Manning, 679 F.2d
341, 346 (4th Cir. 1982). The plaintiffs bear the burden of
proof on each element. Weimer v. Hetrick, 525 A.2d
643, 651 (Md. 1987) (citing Shilkret v. Annapolis
Emergency Hosp. Ass'n, 349 A.2d 245, 247 (Md. 1975);
Paige v. Manuzak, 471 A.2d 758, 766-67 (Md. Ct.
Spec. App. 1984)).
Standard of Care and Breach
law presumes that “the doctor has performed [her]
medical duties with the requisite care and skill.”
Riley v. United States, 248 F.Supp. 95, 97 (D. Md.
1965) (quoting Lane v. Calvert, 138 A.2d 902, 905
(Md. 1958)). The standard of care for healthcare providers in
Maryland requires providers to “exercise the degree of
care or skill expected of a reasonably competent health care
provider in the same or similar circumstances.”
Crise v. Md. Gen. Hosp., 69 A.3d 536, 553 (Md. Ct.
Spec. App. 2013) (citing Shilkret, 349 A.2d at 253).
Maryland law does not require a doctor to provide optimal
care; rather, “the law only requires that the care be
reasonably competent and be acceptable to other members of
the medical profession.” Kroll v. United
States, 708 F.Supp. 117, 118 (D. Md. 1989). Maryland law
requires plaintiffs to prove a breach in the standard of care
(and causation) by expert testimony to a reasonable degree of
probability. Jacobs v. ...