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Walker v. United States

United States District Court, D. Maryland

December 17, 2018

WARREN WALKER, et al., Plaintiffs,


          Beth P. Gesner, Chief United States Magistrate Judge

         Plaintiffs 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.


         On 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.


         On 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, and palpitations.

         A BEFHC 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's appointment.

         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.

         Upon 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' Ex. 5).


         The Federal Tort Claims Act (“FTCA”)[2] 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).

         In this 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)).

         A. Standard of Care and Breach

         Maryland 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. ...

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