Ford et al v. United States of America et al

Filing 239

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 3/4/2016. (kw2s, Deputy Clerk)

FILED
S 0)5 If\lCT COURT
IN THE UNITED STATES DISTRICT COUl~1" 1FiiLT OF t'lARYLMW
,Yo

FOR THE DISTRICT OF MARYLAND
Southern Division

ZGiL fl),R

-lj

P 2: 01

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ANGELA FORD, et al.,

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Plaintiffs,

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Case No.: G.H1-11-3039

v.
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UNITED STATES, et al.,

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Defendants.

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MEMORANDUM

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OPINION

On September 29.2009. one week alier the uncomplicated delivery of her third child.
Plaintiff Angela Ford I 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 e\'CfYother 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 hemon'hage and seizurc on September 28. 2009 appropriate') If not. was
any sueh improper treatment a cause of the hemorrhage and seizure'? llow signi licant 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 eause 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 sili through the

I While this case was pending, Ms. Ford reman'jed and changed her name to Angeln Hysmith. For ease of reference.
the Court will refer to her here as Ms. Ford.

testimony and exhibits and. pursuant to Federal Rule of Civil Procedure 52(a)( I ).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.
I.

PROCEDURAL BACKGROUND
Ms. Ford and her then-husband. Nathan Ford (collectively. "PlaintifTs"). initiated this

action in September 2011 in the Health Care Alternative Dispute Resolution Oftiee in Baltimore.
Maryland, against the United States of America (the "Go\'ernmenC) 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 reeowr 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.
I, 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. respeeti\'e1y. by failing to diagnose and
treat Ms. Ford for preeclampsia and eclampsia alier the dclivery of her third child. and by nliling
to treat her elevated blood pressure] ECF No. 42 at '127. The Amended Complaint further

Rule 52(a)(J) provides, in relevant part. that "Ii]n an action tried on the facts without ajury
the court must
find the facts specially and state its conclusions of law separately. The findings and conclusions
may appear in
an opinion or a memorandum of decision filed by the court:' To comply \\"ith this rule. the court "need only make
brief, definite. pertinent findings and conclusions upon the contested matters. as there is no need for over-elaboration
of detail or particularization of facts." WoOlen v. Lighlbum. 579 F.Supp.1d 769. 771 (W .D. Va.100S) (citing Notes
of Advisory Committee on 1946 Amendments); see also Sherwin-Williams Co, \'. Coach Works Au/o Collision
Repair Cenler Inc .• Civ. Action No. WMN-07-19IS. 10 I1 WL 1343135. at *5 (D. Md. June 19. 10 I1) (""Rule 51(a)
'does not require the court to make findings on all facts presented or to make detailed evidentiary tindings: if the
findings are sufficient to support the ultimate conclusion of the COUll they are sufficient. ... (quoting Darla \'.
Greenville COIl1I11.
Hotel Corp" 301 F.1d 70. 75 (4th Cir. t961))).

2

The Complaint also alleged that care rendered prior to September 27 and 28. 2009 by 1\1arc Hester. M.D .. an
obstetrician employed at the government facility Malcolm Grow i\.ledical Center. breached the standard of care. St:e
ECF No. 42 at ~ 31. Before trial. however, the COUll. ChasllnO\l', J. granted the Govcrllmclll's Motion for Partial

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alleges that the failure to render appropriate care was thc proximate cause of a hemorrhagic
stroke that caused Ms. Ford to suITer from permanent and severe injuries. 1<1. at ~ 30. In Count II
of the Amended Complaint, Plaintit1s' brought a claim for loss of consortium. Alier extended
pretrial proceedings. the Court presided over a joint jury / bench trial Irom November 30. 2015
through December 18. 2015.4
At the conclusion of tria!' the jury returned a unanimous verdict linding that there was no
breach of the standard of care by the Privatc Defendants for the carc 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 lavor of the Private Delcndants.
On January 8. 2016. l'lainti fls and the Government submitted proposed findings of lact
and conclusions of law. which the Court has reviewed and considered in arriving at its findings
and conclusions.' See ECF Nos. 233. 234 & 235.

II.

FINDINGS OF FACT
A. Personal Background of Angela Ford amI 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 briefdiscussion

of the

Summary Judgment and limited Plaintiffs' claims against the Government to the actions and omissions ofCortney
Harper. M.D .. the Government doctor who rendered care to Ms. Ford on September 28.2009. Set! ECF Nos. 70. 104
& 105.
Plaintiffs and Private Defendants jointly demanded ajury trial. ECI' No. 19. but. pursuant to the FTCA.lhe action
against the Government was required to be tried by the Court without a jury. 28 U.S.C. ~ ] .. 2.
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On January 14.2016. counsel for Ms. Ford tiled a Motion to Strike the proposed findings offaet and conclusions
ofla\\" filed by the Government, which rcads as an opposition to the Govemment's liIing. ECF No. 237. The Court
finds nothing objectionable in the Government's proposed findings of fact and conclusions of la\\'; the
Government's submission. ECr: No. 235. merely summarizes the facts which the Govemment asks the Court to find
with respect to the evidence adduced at trial and includes argumen1 by counsel as to the meaning of those facts. The
Court has adopted some portions or the Government's proposed findings and rejected others. just as it has done with
the Plaintiffs' submissions. The Court will therefore dcny the Motion to Strike. and it further notes that it did not
consider any substantive arguments made by Plaintiffs counsel in the Motion because to do so \vollld be to allO\....
Ms. Ford an opportunity to respond to the Government's submission. \I,'hich the COUl1did not allow from any other
party.

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Plaintiffs' personal background to provide somc 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 ga\'e 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 certilicate upon successlill completion of
General Educational Development ("GED") tests. Beginning in 2002. Ms. Ford attended a
community college in Ohio. Sinclair Community College ("Sinclair"). but. aftcr meeting :vir.
Ford, she left the school aner 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 C'EMT'').
In October 2004. the Fords were married. Having become a lather-figure to Ms. Ford's
son, Mr. Ford legally adopted AI'. 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 firelighter, and. in 2006. he
joined the United States Air Force to fultill that dream. The Fords had planned that. while :vir.
Ford was in the Air Force and their children were young. Ms. Ford would be the primary

61n

accordance \vith the policy underlying Federal Rule of Civil Procedure 5.2(a)(3) and to protect the privacy of

the Fords' minor children, the Court will refer to the children only by their initials.

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caregiver of the children. Oncc the childrcn wcrc all old cnough to enter school full-time. Ms.
Ford planned to return to school to bccomc a licensed practical nurse ("'LPN'} Whcn Mr. Ford
was stationed in Maryland. the family relocated there. and Ms. Ford workcd as a cashier at a
grocery store for a brief period of time. Whcn Mr. Ford was dcployed ovcrscas. Ms. Ford \cft her
job at the grocery storc 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 bom by caesarian section on September 22. 2009. As
will be explained in greater detail below. several days after SF's delivery. 1v1s. ord experienced
F
a severe headache and had high blood pressure. On September 27. 2009. she sought treatment
from the Emergency Department of Calvcl1 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 ("'013 Clinic") at Malcolm Grow
Medical Center (""Malcolm Grow )7 with elevatcd blood pressure and a headache. She was
oo

prescribed a low dosagc of blood pressure medicine and sent home with instructions to follow-up
with a primary care physician within live days. On September 29. 2009. Ms. Ford returned to
g

Malcolm Grow. this time to thc Emergency Department. where a CAT scan rcvealed that Ms.
Ford had an intracerebral hcmorrhage. Aftcr learning of the hemorrhage. and while still in the
hospital, Ms. Ford sulTered Irom a grand mal seizure.
Following this incident. Ms. Ford rcpol1cd sutTering lI.om various ongoing injuries.
including severe headaches and migraines. lethargy. and word-t1nding problcms. Mr. Ford. who
typically accompanied Ms. Ford to her medical appointmcnts. reported to Ms. Ford's doctors that
7 Malcolm Grow is a federal health care facility located at Andrews A.ir Force Base in Maryland where military
service members and their dependents can receive a full range of medical treatment.
8 A CAT scan, also called a CT scan, is a sophisticated
x-ray examination that reconstructs images of a part orthe
body to be examined, here. the brain. and produces a series of images called axial images. or "slices:' which are
examined by doctors to help diagnose a patient.

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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 becn seizurc-li'ee for at least six
months.
In an cffort to better accommodate Ms. Ford's condition. Mr. Ford sought rcassignment
through the Air Force so that they could relocate to bc closer to other family members who could
help with childcare and otherwisc serve as a support systcm. Whcn that request was denied. Mr.
Ford then sought to separate Irom the Air Forcc. Whcn that requcst was grantcd. the I~ullily
relocated to Williamsburg. Virginia in Octobcr 20 I O. where the only nearby family was Ms.
Ford's aunt and a cousin she had ncver met. Around this timc. Ms. Ford and Mr. Ford
experienced marital ditliculties and sought marital counseling. Unable to rcpair their
relationship, the couple separatcd in 2012 and divorced in May 2013. Aftcr the separation and
divorce, Ms. Ford continued to be the primary caregiver ieJrthc Fords' threc children.
At some point in 2012. Ms. Ford mct Dwayne Ilysmith and shc. along with her thrce
children, moved into his home in December of that year. Ms. Ford and Mr. llysmith began
dating and were married in August 2015. and. as of the time of trial. they continued to livc
together in Virginia with Ms. Ford's children.
B. Education

and Employment

When Ms. Ford was tirst old enough to begin \\mking. around agc sixtcen. she hegan
working at a Chick-lil-A. After AI' was horn. shc worked as a grceter and waitress at a
restaurant, and. as previously indicated. obtained her GED. passing thc GED tcst without any
prior studying.

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Ms. Ford became interested in pursuing a career in nursing alier she helped care for her
uncle during his battle with brain cancer. Alier obtaining her GED. shc attended Sinclair for
seven semesters where she initially received several passing grades in pass/tail 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 reeeived one D and eight tailing
grades before leaving school without completing her degree.

If)

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 OJE 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 20 12. however. she
occasionally staffed the cash register of a country store next to her house \\"hen 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 whieh Ms. Ford consumes to hclp 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 thc
oils for herself at wholesale prices. The organization of the company is such that when one

<)

Where the Court is relying

011

or referencing a particular exhibit in the record. the citation to that exhibit will be

referenced. For all other facts referenced in this Memorandum Opinion. the Court relies on its memory orthe trial
testimony, notes taken during trial, the Court"s internal recording system. and available trial transcripts.
10 Although
it is of considerably less relevance. Ms. Ford's medical records also indicate that she was either held
back or failed first grade and \vas enrolled in special education classes in first. second, and third grades. DJE NO.4

at t2.

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person, a "sponsor:'
downline

enlists another distributor.

that new distributor

makes a sale, the sponsor receives a percentage

signed up some downlines.

downlines

Ford to receive some commissions

underneath

Essential

of approximately
C. Depression
Beginning

Ms. Ford does not

her

$114. In 2015. however. her income

and Anxiel)'
separation

from a lamily physician.

and the death of her uncle. Ms. Ford

which she took intermittently

for several years.

when she met Mr. Ford. though he did not observe that the

and anxiety negativcly

impacted her life or their marriage.

In June 2007. Ms. Ford visited Malcolm Grow's

antidepressants

to manage her

$6,600 annually.

She was taking antidepressants

anxiety and depression.

Ms.

Essential Oils on social media websites. such

earning was approximately

around the time of her parents'

antidepressants

depression

allowing

and she earned an average 01'$556 per month. equating to an earning

became more consistent

obtained

her in the sales organization.

In 2014. when she lirst started as an Essential Oils distributor.

highest monthly commission

potential

on that sale. Ms. Ford has

She spends an hour to an hour and a hal I' per week on the computer

Oils business.

When a

family and close Ii'iends. but her

for sales made by those individuals.

actively sell the product to others. but she promotes
as Pinterest.

commission

mostly limited to her immediately

sponsor has placed additional

is their "downline:'

The mcdicalnote

off and on. including

Primary Care Clinic for treatment

of

for that visit indicates that Ms. Ford reported taking

Lexapro. Wellbutrin.

Prozac. "axil. and Zoloti, and seeing

a therapist about two years before. DJE No. I at 1. The note also indicates that Ms. Ford reported
feeling tired or poorly. having decreased
intermittent

feelings of hopelessness.

concentration

ability. anxiety. depression

and low sell~esteem.

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with

She rep0l1ed that she had becn doing

well with Lexapro but ran out of medication one week before. !d The primary care physician
prescribed Celexa and indicated that Ms. Ford would consider therapy. !d at 2-3.
Ms. Ford returned to the Malcolm Grow Primary Care Clinic in August 2007 lor an
annual exam. She reported inadequate results with Celexa and was prescribed Lexapro. !d at 810. 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. !d 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 Deccmber 2008. Ms. Ford was secn for depression
follow up and the note trOln that visit indicates that she reported that she had suffered fi'om
depression since she was a teenager and that the symptoms were well controlled. The note
further indicates that Ms. Ford asked tor and was prescribed Buspirone to treat anxiety. [d. at 2527. She did not. however. undergo any counseling or therapy for depression or anxiety during
this time.
In Febmary 2009. early in her pregnancy with SF. Ms. Ford completed an Edinburgh
scale form. a screening tool designed to determine depression during pregnancy and in the
postpartum period. Tests which produce a score of thirtecn or greater out of thirty total points arc
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 Zolon for depression and
continued with Buspirone for anxiety. Ill. at 23. 29. She was referred to Behavioral Health for
depression, see id. at 23. but she f~liledto follow up. During her pregnancy with SF. Ms. Ford's
depression remained stable while she was on a prescription for Zolon. and. when the Edinburgh

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scale test was administered again post-delivery. her score was twelve out of thirty. lei. at 84. 93.
99, 102, 106; OJE NO.4 at 29.
When Ms. Ford sought treatment from the Emergency Department at Calvert llospital
and from the OB Clinic at Malcolm Grow in September 2009. she reported a history of
depression. OJE NO.3 at 2. 32. In October 2009. one month alier 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 posthemorrhage and seizure. On four occasions beginning in October 2009 and going through April
2010, she and Mr. Ford were seen in the Malcolm Grow Mentaillealth

Clinic for marital

therapy. See DJE NO.4 at 15-18. I 17-18. 125-26. 130-31. She also received individual therapy
at Malcolm Grow Primary Care Behavioral Health Clinic in January and February 20 IO. !d at
60-61, 86-87. She received no Illlther melltal health treatment until August 20 II. when she and
Mr. Ford again went to marital therapy. !d 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 helpflll at this
point to provide a brief overview of various medical conditions discussed during trial. ancl. in
particular, medical conditions that are associated with pregnancy.
First, by way of background. hypertension. or high blood pressure. is generally a longterm condition that a person may suiTer for years: it is not typically a condition that must be

10

treated on an emergency basis. That said. when an individual has a systolic blood pressure of 180
or greater. or a diastolic pressure of 110 or greater. i.e .. 180/110 n1l11
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 damagc. ft)t' example. damage
to the brain, heart, or kidneys, then the patient is in a stage of hypcrtensive emergency. which
requires immediate treatment. Ilypertension in pregnancy. in contrast. is defined as a sustained
blood pressure of 140/90.
When a pregnant patient has gestational hypertension. thc next concern is whether thc
patient has a syndrome called preeclampsia. Although medical detinitions can vary. in gcneraL
when a pregnant patient has sustained elevated blood pressures. i. e.. multiple blood pressures
exceeding 140/90, and elevated protein in their urine. a symptom known as "proteinuria:' the
patient is diagnosed \\lith preeclampsia. Although this. too. is subject to some dispute. protein in
urine is considered elevated ifit exceeds 300 mg over a 24-hour period. A patient "ith
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 i r. among other symptoms. the patient's blood pressure
exceeds 160/110. or the patient cxperiences 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. howcver. 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.

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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 bc 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 Zololi, and anti-inllammatory 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. Alier birth. the large volume of lluid that once occupied the placenta is
reabsorbed or evacuated from the mother's body. This influx of volume causes changes in
vascular tone and honnones that are commonly associated with vasoconstrictive diseases like
cerebral angiopathy.
With this in mind. the Court will next tum 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 08 Clinic at Malcolm Grow. The doctor overseeing her prenatal care was Marc
Hester, M.D. Ms. Ford's prenatal course was. overall. uncomplicated.
69,82-84,91-107,118-20.

DJE NO.2 at 27-30. 63-

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 ("PE") No. I at I034. Out of precaution. Dr. I-lester

12

ordered certain lab tests. which revealed that Ms. Ford also had slightly elcvatcd protein in her
urine, as indicated by a 24.hour urine protein test. at 303.6 mg/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 Septcmber 22. 2009 and expcrienced no complications
during the scheduled caesarean section. She and her daughter were discharged

011

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. live days post-dclivery of her daughter. Ms. Ford began to
experience a ,.terrible" headache. Becausc 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 202/1 04. Nlr. Ford repeated the test an
additional four or live times before deciding to bring Ms. Ford to Calvert Ilospitai. 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 1-1 O. with a 10 being the worst pain she had ever felt. She also reported that she
was "feeling wcird," and experiencing nausea. In triage. her blood pressure was measured as
191/104. In her mcdical history. it was reported that she had a cesarean section live days earlier
and that she had a history of depression. PE NO.2 at 2000.
Dr. Matthew Christianson lirst 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 m(m:d to

13

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." Jd. 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 lluids 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. lie also ordered a "clean
catch" urine sample to test f'lr elevated protein in her urinc 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. Jd. 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. Jd. at 20(JI. Ms. Ford was discharged
from Calvert Hospital at II :30 p.m. with a prescription fi.JrCompazine to aid with her nausea and
headache and with instructions to follow up with her obstetrician in onc to two days. Id. at 2003-

04,2007-08; see a/so DJE NO.3 at 3-28.

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G. Care at Malcolm Grow Medical Center on September 28 and Septemher 29,

2009
I. Background

Facts

Around 10:00 a.m. on September 28. 2009. less than twelve hours aner she was
discharged from Calvert Hospital. Ms. Ford. accompanied by Mr. Ford. arrived at the Malcolm
Grow OB Clinic. where her blood pressure was recorded as 181/93 and she complained of a
headache on a pain scale of 5/1 O. DJE NO.3 at 32. While Ms. Ford was waiting to be seen by the
on-call physician. the Fords spoke with Dr. Hester. Ms. Ford was visibly upset and expressed her
frustration that her headache had not been treated.
Ms. Ford was treated by Cortney E. Harper. M.D .. who had recently completed her
residency in obstetrics and gynecology. and. at that time. was not yet board certitied. Dr.
Harper's visit note indicates that Ms. Ford reported that she had a headache that had started the
previous day and that she experienced headaches with stress. Ms. Ford recounted her visit to the
Emergency Department the previous night for elevated blood pressure and headache. which was
relieved somewhat with Percoeet and Motrin. Other relevant data noted in Dr. Ilarper"s visit note
included that Ms. Ford had stopped taking Buspirone for anxiety one week earlier and was taking
Zoloft daily for depression. that she was "feeling very stressed at home with 3 kids." although
her mother was there helping her. and that the headache "started aner her newbom did not sleep
all night." Id. Ms. Ford also denied having any vision changes or right upper quadrant pain. Id.
Ms. Ford told Dr. Harper that the head CT sean from the day before at Calvert Hospital
was within normal limits. and Dr. Harper noted and recorded normal preeclampsia labs ti'OIllthe
previous evening. Dr. Harper did not order another dipstick urine test or a 24-hour protein urine
test. [n the visit note under her assessment and plan. i. e.. her diagnosis. Dr. Hmver entered
"Blood Pressure Isolated Elevated." [d. Dr. Harper concluded that !'vIs.Ford's headache and
15

elevated blood pressure were likely secondary to stress. She restartcd Buspirone for anxiety.
increased Zoloft to 100 mg, and prcscribed Tylenol with codcinc for her headache. While Dr.
Harper's notes indicate that she had initially planned to refer Ms. Ford to Internal Medicine the
next day for assessment for hypertension. she instead decided to treat her high blood pressure by
prescribing 100 mg of Labetalol twice a day. and then referred her to Internal Medicine for a
consult for hypertension. Dr. Harper directed Ms. Ford to return to the OR clinie for a blood
pressure check if she was unable to schedule an appointment with Internal Medicine within five
days. She also directed Ms. Ford to return as soon as possible ifshe had other symptoms of
preeclampsia. Ms. Ford was discharged Ii'om the OB Clinic around noon. 1d. at 32-33. The
record is absent of any additional blood pressure measurements taken during that visit. although
Dr. Harper testified at trial that. under the custom and practice of the OB Clinic. additional blood
pressure measurements would have been taken. Dr. Harpcr could not recall. however. what Ms.
Ford's blood pressure was at the time she was discharged. Thus. the only blood pressure
measurement in the record for that day was the one initially recorded at 181/93. 1d at 32. 34.
Ms. Ford's headache was not resolved by the evening of September 29. 2009 and she
began to experience numbness on the leli side of her Illce. At approximately 8: I0 p.m .. 32 hours
after her discharge from the OB Clinic. Ms. Ford arrived at Malcolm Grow Emergency
Department complaining of headache and fevcr. DJE NO.3 at 29: see a/so I'E NO.4 at 5007. Her
blood pressure was recorded as 171/91 on her right arm. and 164/10 1 on her left arm. and she
reported that she had taken three doses of Labetalol. She also indicated that her headache pain
scale was between 4 and 5 out of 10. DJE NO.3 at 29. 36. A head CT scan was ordered. which
showed a 1.1 x 0.6 em hemorrhage in her right Irontallobe. 1d. at 46.

16

Just after midnight, Ms. Ford saw a rainbow of lights and then went into a grand mal

-

-

seizure, which lasted at least one minute. Shc was administered ma!!nesium sullille. a dru!! used
to stop seizures. PE NO.4 at 5012-13. At approximately 2:00 a.m .. she was transferred to the
National Naval Medical Center at Bethesda ("Bethesda Naval"). where Ms. Ford remained for a
little under two weeks for further care and treatment. DJE NO.3 at 37. 42.
2. Standard of Care
To support the claim that Dr. llarper breachcd the standard of care in her treatmelll of
Ms. Ford on September 28. 2009. Plaintiffs introduccd the testimony or Aaron Caughey. M.D ..
MPP, MPH, Ph.D, a doctor and professor of obstetrics and gynecology. who testilied that it was
"not within the standard of care to rely on a dipstick in the postpartum period if it is a negative
reading for proteinuria in order to rule out preeclampsia"

lie indicated that if a dipstick test

produces a result of I + or higher. there is an 85 percent chance that the person will have
proteinuria, and a doctor must then follow-up with a 24-hour urine test. Ifthc dipstick produces a
negative result, however. the test is "almost usc less" because 40 to 60 pcrcent of women who
have significant proteinuria under a 24-hour urine collection will produce a negative urine
dipstick.
In support of his opinion. Dr. Caughey relied on certain mcdical literature that was. as of
2009, the most recent literature discussing these issues. According to the American Congress of
Obstetricians and Gynecologists Bulletin ("ACOG Bulletin"). hypertension in pregnancy is
defined as a blood pressure reading with a systolic pressure of 140 or above or a diastolic
pressure 01'90 or above. That publication noted that one-quarter of women with gestational
hypertension will develop proteinuria, i.e.. preeclampsia. The criteria for a diagnosis of
preeclampsia, according to the ACOG Bulletin. are a blood pressure as described above and

17

proteinuria of 300 mg or above as determined by a 24-hour urine sample. Finally. the ACOG
Bulletin stated that preeclampsia is considered severe if one or more of certain factors are
present, including a systolic blood pressure measurement of 160 or higher or a diastolic pressure
of 110 or higher on two occasions at least six hours apart while the patient is on hed rest. right
upper quadrant pain. impaired liver functions, pulmonary edema or cyanosis. or cerebral or
visual disturbances.
Williams Obstetrics 22d Ed, another piece of medical literature referred to by scveral
witnesses at tria\, indicates that gestational hypertension is deJined as a blood pressure of 140/90
in a pregnant woman. It notes that some women with gestational hypertension may develop other
lindings of preeclampsia. such as headaches or proteinuria. Preeclampsia, according to Williams
Obstetrics, is diagnosed by a blood pressure of 140/90 and proteinuria of greater than 300 mg/24
hours or a dipstick with a result of I + or greater in random urine samples. According to
Williams, "the degree of proteinuria may tluctuate wildly over any 24 hour period even in severe
cases. Therefore a single random sample may tail to demonstrate even signitieant proteinuria:'
Even putting aside the issue of proteinuria. Dr. Caughey also testified that it was a
deviation from the standard of care to release Ms. Ford from the clinic without appropriately
treating her high blood pressure. He stated:
So honestly. whether she has severe gestational hypertension or severe
preeclampsia. with those blood pressures, that's what we need to focus on. I
honestly don't care whether we're going to call it-at this moment in time when
I'm taking care of the patient. whether or not the protein is c1evated or not. ...
[R]ight now it's the blood pressures we need to focus on. These are severely
elevated blood pressures. We need to get them down to protect her organs, her
kidneys, but most importantly, her brain.
Given that Ms. Ford's only recorded blood pressure on September 28,2009 was 181/93. Dr.
Caughey testified that he could not rule out that Ms. Ford had at least hypertension. ewn ifnot

18

preeclampsia, because Ms. Ford had two measurements of severely elevated blood pressure
twelve hours apart-at

least one at Calvert Hospital and one at Malcolm Grow. In order to

satisfy the standard of care. according to Dr. Caughey. Dr. Harper was required to do one of
three things: (I) admit Ms. Ford to the hospital so that her blood pressure could be monitored and
controlled; (2) send her to the emergency department. assuming she could remain there l'or
twelve to twenty-four hours for blood prcssurc control: or (3) keep her in the clinic at Malcolm
Grow for at least two to four hours to monitor her blood pressure. In ordcr to do so in the clinic
setting, he testilied that the stafTwould nced to collect "serial blood pressures" by setting up a
cuff to measure blood pressures at certain intervals. It: in the clinic setting. her blood pressure
stabilized, she could be released and monitored in an outpatient setting.
The Government's expert. Harold Fox, M.D .. testified that the diagnostic criteria for
preeclampsia in 2009 was not uniform: rather. there was different criteria being used clinically
by different physicians. and he pointed out that the ACOG Bulletin and the Williams Obstetrics
textbook differ in certain respects. Dr. Fox indicated that. when it comes to determining the
necessary blood pressure measurement to diagnose preeclampsia. it was his opinion that a patient
would need to have both a systolic pressure of 140 or above and a diastolic pressure 01'90 or
above. He pointed to the Williams Obstetrics textbook to support this point. He also pointed to
the Williams textbook to support his opinion that. within a reasonable degree of medical
probability, it was within the standard of care fiJr a clinician to rcly on a negative urinc dipstick
test to rule out preeclampsia. He testilied that. although the urine dipstick test is not 100 percent
accurate, its accuracy is high enough to be reliable to rule out that diagnosis. Finally. Dr. Fox
testified that. although failure to record any additional blood pressure measurements taken at the
Malcolm Grow clinic might violate an adlllini.l'lralil'c

19

standard of care. assuming that Ms. Ford's

blood pressure was in fact measured again and those blood pressure mcasurcments wcrc
reviewed by Or. Harper, then it was Or. Fox's opinion that the standard of care was satisficd in
this case.
H, Ongoing Treatment and Injuries
I. Brain Imagery
On September 30,2009, at Bethesda Naval. a magnetic resonance imaging ("MRI") head
scan was taken of Ms. Ford, producing three different types of imaging: FLAIR sequence
images, diffusion weighted images ("OWn,

and apparent difTusion coeflicient ("AOC")

images; the OWl images and ADC images are simply different computer images of the same
data. When a OWl image shows bright or white areas on a brain, it is indicative of edema. or
swelling with fluid. And when a DWI image is converted into an AOC image, those white areas
become dark arcas, and, in order to dctcrminc whcther a OWl image produces a positivc rcsult
for edema, a radiologist must compare thc light areas on thc OWl imagc against thc dark areas
on the ADC image.
Ms. Ford's clinical history at thc time of the MR!. as stated on thc radiologic examination
report, indicated that ..[tlhe patient is a 27-year-old female who is several days postpal1um who
suffers with eclampsia manifesting as severe hypertension and scizures. Thc patient had a
hemorrhage in thc right frontallobc:'

PE NO.3 at 1059. The radiologic examination report

further indicated that there was evidence of a "contemporary cortically based hemorrhage in the
right middle frontal lobe sulcus" and "mildly restricted diffusion:' but found that there were "no
classic findings of hypertensivc cncephalopathy:'

Id. at 1060. It was undisputed by both

Plaintiffs' and thc Government' s expcrts that the MRI also showed cvidcncc of a syndromc
known as "PRES:' which stands for posterior, rcvcrsible cncephalopathy syndromc. This titlc is

20

a misnomer, however, because the syndrome known as PRES is. in fact. not always something
that occurs in the posterior region of the brain and is not always reversible.
Caren Jahre. M.D .. a neuroradiologist. explained at trial that there was evidence of edema
on the September 30, 2015 MRI. as seen on the FLAIR sequence images. There are two different
types of edema: vasogenic edema. which is tluid which leaks Ihlln the vessels of the brain and is
reversible, and cy10toxic edema. which is swelling of the cells of the brain. and is a term that is
used when there is ischemia-lack

of blood now or oxygen to the brain-which

leads to a

stroke. Dr. Jahre testified that. on the OWl images. the MRI scan showed areas of brightness
which were evidence of cytotoxic edema. the end result of which is "restricted di ffusion:' or
infarction, i.e .. dead tissue. which causes irreversible brain injury. In other words. Dr. Jahre
agreed with the finding by the Government radiologist who initially reviewed Ms. Ford's MRI at
Bethesda Naval that the MRI showed mildly restricted diffusion. Shc disagreed. howcver. with
that portion ofthc radiologist's report that indicatcd that there were "no classic findings of
hypertensive encephalopathy:'

becausc hypertcnsion can cause PRES. It was Dr. Jahre's opinion

that PRES was the cause of the brain hemorrhage as well as the cause of the rcstricted di ffusion
seen on the MRI, and, from her review of Ms. Ford's medical records. she was aware of no other
cause for the PRES other than preeclampsia and eclampsia. She further stat cd that. even if
restricted diffusion is "mild:' it cannot be dismissed as insignificant because cven minor brain
injury can be problematic. Similarly. Dr. Jahre explaincd that even alicr the clot li'OI11
a
hemorrhage disappears. damage to the underlying tissuc will remain. On cross-cxamination.
however, she testified that if there was, in fact. no rcstrictcd diffusion. Ms. Ford would not have
had any long-term injury. Ncverthcless. she also explained that determining how any tissue

21

damage would manifest itself as future injury must be leli to a clinician: in other words, the longstanding effect of any brain injury was beyond Dr. Jahre's expertise.
Defense expert Lee Monsein, M.D" also a neuroradiologist

disagreed that the

September 30, 2009 showed cvidence of restrictcd diffusion or pcrmanent brain injury, Rather.
according to Dr. Monsein, thc areas ofbrightncss

identificd by Dr. Jahre on thc OWl imagery

were the result ofa phenomenon called "T2 shinc through" that rcsults from capturing various
imagery, creating an appcarance of increased brightness that is not actually present in the brain.
This is essentially a "false positive:' Both Dr. Monscin and Dr. Jahre agreed that a
neuroradiologist must compare the OWl image to the ADC image to determine whether the areas
of brightness on the OWl image actually produccs a positive result fiJr brain injury. Dr. Monsein.
however, testified that when comparing the areas of brightness on the OWl image ti'Omthe
September 30, 2009 MRl point by point with the ADC images. as one must he found that the
areas of brightness on the OWl images were also bright on the ADC images, indicating that the
areas on the OWl images were not areas of restricted diffusion, but examples of"T2 shine
through." It was his opinion, thercforc, that the brightncss on the OWl imagcs showed a "t(llsc
positi ve,"
Additionally, Dr. Monsein tcstiticd that permanent cell death or brain damage is
determined by cxamination of subsequent CT scans lilr arcas of old or healed inl(lrcL which
would be filled with water. and show up as black spots on CT scans. On January 28. 20 10, four
months after hcr brain hemorrhage occurred, Ms. Ford had another CT hcad scan. I'E NO.5 at
5229. The radiologist report for that exam indicates that there had been "intcrval rcsolution of thc
parenchymal hcmorrhage in the right Irontal lobc. without any ncw areas of hemorrhagc:' III In
other words, the hemorrhagc was no longer noticeable and at least any vasogcnic cdema that was

22

present on previous brain scans had resolved. Ms. Ford had anothcr CT scan on February 7,
2014, and the report from that scan also indicatcs that thcrc was no cvidcncc of infarct. DJE No.
4 at 310. Thus, it was Dr. Monsein's opinion that Ms. Ford had no pcrmancnt brain damagc
because any reversible vasogenic edema found with PRES that docs not havc a rcstrictcd
diffusion component would not result in pemlanent injury.
When Ms. Ford was discharged from Bethesda Naval on Octobcr 5. 2009. hcr dischargc
diagnosis was "pre-eclampsia/eclampsia

superimposed on pre-existing hypcrtcnsion.

postpartum," hemorrhage, "cerebrovasuclar disorder in the puerpcrium. postpartum," "csscntial
hypertension" and "convulsions," PE No. 50 at 11561.
2, Concerns of Family and Friends
After Ms. Ford rcturned homc. the family began what Mr. Ford describcd as having to
"start life all over again," Ms. Ford had difficulty cleaning the house and caring for the childrcn.
She would olien slecp throughout thc day or takc prolonged naps. during which timc Mr. Ford
was unable to wake hcr. Shc also suffercd from frequent headaches. Mr. Ford took leaw from
work to care for the family. and, whcreas Ms. Ford had done most of the work caring for OF
after his birth. the responsibility to carc Ill!".feed. and wake up at night with SF tell on Mr. Ford
becausc Ms. Ford was incapablc of doing so.
On Octobcr 26,2009. less than one month alicr Ms. Ford's hemorrhage and scizure. she,
along with Mr. Ford. went to a counsclor for the lirst time. DJE NO.4 at 9-18. The notcs of that
visit indicate that Ms. Ford felt frustratcd and guilty for not having becn ablc to help care for SF
"until just a few days ago," and also described that shc was expcriencing certain cognitive
complaints, such as an inability to read and comprehcnd as casily as shc had hccn ablc to before
the incident. ld. at 15-16. Mr. Ford indicated that things at home wcre improving. howcvcr. and

)'

--'

the note provides: "Overall [the] couple appears to be adjusting very well to a yery dramatic
event." Id. at 15.
On November 2. 2009. at a gynecology visit. Ms. Ford proyided the doctor with a
neurology report that indicated that all symptoms had "essentially resolyed" except for the
occasional "facial twitch." PE No. 50 at 11092. Ms. Ford repol1ed at that Yisit that she "desires to
start having intercourse again." Id. On January 4. 20 IO. howeyer. Mr. Ford scnt an cmail to Ms.
Ford's treating neurologist indicating that he continued to be concerned about Ms. Fonl"s
condition because she was taking prolonged naps, during which time it was difticult to wake her.
despite pinching, yelling, or smacking her. Id. at 11502. He noted that he had gone hack to work
and worried about leaving Ms. Ford homc alone with the children. Id.
On February 4. 20 IO. Ms. Ford reported to her therapist that she was haying ..[c]oncern
for husband having to take on caretaking role." DJE NO.4 at 86. On March I. 2010. Ms. Ford's
therapy record states: "her husband has been \'ery supportiye with her recent medical situation.
However, [patient] has some feelings of guilt. frustration. and anger bccause she cannot tiJllill
the role of mother and wife as she would like tor] ....

[Patient] feels that she and her husband

had a strong foundation in their marriage but that these new stressors haye definitely affccted
their happiness." PE No. 10 at 15036.
On April 13. 20 IO. another therapy record indicates that the Fords' intimacy was affcctcd
by these "new strcssors": Ms. Ford reported that her libido had "decreased." with a "Iack of
drive." and she was advised to. "build on strengths in marriage to rcgain the intimacy missing
from the recent stressors." Id. at 15043. Two weeks later. on April 27. 2010. during a psychiatric
appointment, Ms. Ford stated. "she and her husband havc bcen fighting more and she is more
irritable and frustrated with her family." Id. at 15054. Although the couple went to marital

24

therapy, Ms. Ford eventually sought a divorce because she resented that Mr. Ford had acted more
as her caretaker than her husband. and she desired more independence. Ms. Ford and Mr. Ford
separated in 2012 and divorced on May 10.2013.
Although Ms. Ford reported having difticulty maintaining intimacy with Mr. Ford. not
long after their separation. she began her courtship with Mr. J Iysmith. The two were married in
August 2015, and, by all accounts, continue to have a stable and healthy relationship. For
instance, during a period of illness. Mr. Hysmith proudly stated that Ms. Ford acted as his
caretaker and never left his side. Mr. Ilysmith testilied at trial that Ms. Ford continues to have a
very good relationship with her children. that she cleans the house and does the laundry. and that
she has her

O\\TI

car and drives herself and the children as necessary. To the extent that Ivls. Ford

had any difficulty providing the necessary affection, assistance. and conjugal fellowship to
maintain a stable relationship immediately alier her injury. any such dirticulty has clearly
improved.
Others close to the Fords offered differing accounts of Ms. Ford's standard of living postinjury. On the one hand. Ms. Ford's mother. Nancy Combs. testified that her daughter is a
different person now than she was prior to her injury. Ms. Combs explained that Ms. Ford used
to be a very social and personable woman. but now her anxiety makes it diflicult to socialize the
way she once did. Ms. Combs believed that as of May 2013. Ms. Ford appeared to be "coming
back" to the way she was prior to the injury. but that she still has not fully recovcrcd. Similarly.
Steven Ford, Mr. Ford's father. thought that Ms. Ford's personality had changed alier her
hemorrhage and seizure. He also testitied that he did not believe that Ms. Ford suffcred Irom
depression or anxiety until aftcr SF's birth.

25

On the other hand, Ms. Ford's distant cousin. April Seitz-Brown. who had not met Ms.
Ford until 2011 after the Fords moved to Virginia. indicated that. in all their time together. Ms.
Ford never complained about having difticulty cleaning the house or caring for the children.
According to Ms. Seitz-Brown. Ms. Ford had her own car and would drive herself and her
ehildren places and. any time Ms. Seitz-Brown visited the Fords' home. the house was
"immaeulate." Ms. Seitz-Brown further testilied that Ms. ford relayed to her that the reasons Ms.
Ford could not go back to school for nursing was due to tight linances. but also that "if anybody
found out that she was going to school or working. it could mess up her lawsuit."
3. Facial Twitching, Staring Spells, and Headaches
Atier the incident, Ms. Ford began to suffer from "twitching spells" and "staring spells,"
During a twitching spell, her left facial muscles would rhythmically twitch. mostly above her lip
but also including her left eyelid. During a staring spclL Ms. Ford would "zone out" and stare
into spaee, and would be unresponsive to touch or voice. Mr. ford recorded instances of both
types of these spells on his cell phone. Although twitching spells occurred both during sleep and
wakefulness, Ms. Ford was unaware that she was having them.
On October 27, 2009. Ms. ford had her tirst visit with Dr. Fasano. her treating
neurologist at Walter Reed. Dr. Fasano's note Ii'om that visit indicates that Ms. Ford had a
history of "hypertensive intracerebral" right frontal hemorrhage one month prior. while shc was
one week postpartum. DJE NO.4 at 21. The note further states that Ms. Ford had "mildly
decreased sensation on the [left] lower face" and that she was continuing to have headaches.
although they were improving. Dr. fasano indicated that the "[!eli] facial numbness is likely
related to the hemorrhage" but that this. too. was improving. Id.

26

In one visit. Mr. Ford showed Dr. Fasano one of the cell phone videos of Ms. Ford's
facial twitching. which Dr. Fasano noted was "suspicious" for seizures. Dr. Fasano instructed
Ms. Ford that she could not drive until seizures could be ruled out. OJE NO.4 at 52. On
December 9.2009. Dr. Fasano prescribed Topamax to treat Ms. Ford's headaches. which is also
prescribed to control seizures. On January 21. 2010. Ms. Ford reported to Dr. Fasano that her
headaches were getting slightly less frequent. !d. at 62.
In an effort to determine whether Ms. Ford was in fact having seizures. Dr. Fasano
ordered a routine electroencephalogram

("EEG"). which is a non-invasive procedure that detects

electrical activity in the brain. There are ditferent types of EEGs. including routine EEGs. sleepdeprived EEGs-which

require minimal sleep by the patient the night before-and

video-

monitored EEGs. which require an in-patient stay of several days. In accordance with Dr.
Fasano's order. a routine EEG was perlimned on Ms. Ford at Bethesda Naval on January 28.
2010. which produced normal results. DJE NO.4 at 50. Alier the normal EEG results. Dr. Fasano
ordered a sleep-deprived EEG. which Ms. Ford did not undergo. Ms. Ford also declined Dr.
Fasano's request to undergo an inpatient video EEG. indicating that she did not want to leave her
children to be admitted to the hospital. !d. at 152.
During a visit on February 23. 2010. Ms. Ford told Dr. Fasano that she !i)rgot to take her
preseribed Topamax. and that she continued to have chronic daily headaches. which. according
to Dr. Fasano's visit note. were likely due to stress. Id at 105. In other visits. Ms. Ford attributed
her headaches to her menstrual cycle. stress. weather. and sleep deprivation. Id at 191. 228: DJE
NO.5 at 44. 108.
On a visit on June 18.2010. Dr. Fasano's visit note indicated that Ms. Ford reported
some improvements: although she was still experiencing chronic headaches and migraines. she

27

"

believed that the facial twitching had improved. Mr. Ford. however. reported that he still noticed
twitching episodes while Ms. Ford was asleep or when she was exerting herself too much. DJE
NO.4 at 152.
After the Fords moved to Virginia. Susan Brown. M.D. became Ms. Ford's treating
neurologist. At her first visit on January 27. 20 II. Ms. Ford reported continued facial twitching
during wakefulness and sleep. provoked by stress or fatigue. with rhythmic twitching lasting I to
5 minutes, occasionally accompanied by staring. DJE NO.4 at 176-79. Dr. Brown instructed Ms.
Ford that she could not drive for at least six months alier her last seizure. Despite being treated
with increasing doses of seizure medication. Ms. Ford continued to hm'e "breakthrough seizures"
between visits with Dr. Brown through June 21. 2012./d

at 191-93.208.223.

Ms. Ford also

continued to have headaches. but indicated that they were triggered by heat and menses. See it!.
at I'll. In an August 2012 visit. Ms. Ford reported that she did not think she was having any
twitching spells. but she was not sure because they were olien nocturnal. and she and Mr. Ford
were separated at that point.!d

at 228-31. Then. at a visit in October 2012. i\ls. Ford reported

that she had two twitching spells while she was with Mr. Ford. foIlO\\'ed by a headache and
lethargy for a few minutes afterwards. Id at 233-35. In December 2012. Dr. Brown asked Ms.
Ford to schedule a sleep-deprived EEG. but she did not. See hI. at 236. Ms. Ford last saw Dr.
BrO\\TIin August 2013 and again reported that she experienced leli facial t\\'itehing. f()llowed by
a headache. Id at 256. Although Dr. Brown made a working diagnosis of epilepsy for Ms. Ford
and treated her with medication l()r seizures. headaches. and depression. on .Iuly 28. 20 I I. Dr.
Brown noted that. given the amount of medication Ms. Ford was receiving. her "seizures should
be well controlled fairly rapidly" but that "[gJi\'en the stress overlay. there may be a possibility

28

id. at 192. a concern which Dr. Brown reiterated in their linal visit in

of psuedoseizures;.I\

August 2013. Jd. at 256.
Ms. Ford ceased using prescription

medications

for seizures in July 2014 and has not had

a seizure since around that time. See DJE No. 30. She also now sclt:medicates
by using Essential

Oils. Ms. Ford has not been treated by a neurologist.

for her headaches

or any other physician.

for seizures since her last visit with Dr. Brown on August 22. 2013.
At trial, Dr. Jahre testified that the hemorrhage
"seizure

focus:'

Ms. Ford experienced

Jerome Block. M.D .. an expert in neurology

could cause a

and another of Plaintiffs'

expel1s.

viewed the videos taken by Mr. Ford at trial and. when one video of Ms. Ford's facial twitching
was played, Dr. Block described

the twitching

as "rhythmic

twitching

of several muscle groups

of the left side of her face. The upper lip more than the lower lip. a liltle wiggle of the chin
muscle on the len side, the cheek as wcll. and if you look vcry carcfully.

the leli eyclid.just

a

very minor twitch:'

He also noted that. in the video. hcr head and neck were turned to the lett

which he described

as a "classic picture" ofa focal seizure bccausc the head and cyes are usually

deviated

away from the focus of the scizurc. hcre. the right li'ontal hemorrhage.

Ford's eyes were closed. howcver,

he could not tell whether her eycs wcre focuscd to the Icli.

Dr. Block recognizcd

that such twitching

psychogenic

but hc did not believe any "faking"

seizures.

Bccause Ms.

could possibly be faked or could be the rcsult of
could be donc with that sort of rhythm.

Noting that Dr. Fasano and Dr. Brown had both treated Ms. Ford for cpilepsy.
testified that epilepsy will rarcly "go away" entirely.
epilepsy;

they only treat it. He furthcr indicated

several months or years. she has not nccessarily

He stated that neurologists

Dr. mock

do not "curc"

that. even if Ms. Ford has not had a seizurc in
been cured of epilepsy. but rather has only been

II Pseudoseizures or psychogenic seizures are non-planned abnormal physical or behavioral changes that can be
caused by emotional or psychological problems. Unlike an epileptic seizure. pseudoseizurcs seizures will not show

abnormal brain activity on an EEG.

29

lucky for however many months or years it has been since her Jast seizure. In other words.
because the seizure focus exists. according to Dr. Block. Ms. Ford will always be at risk for
another. With respect to what treatment Ms. Ford may need going forward for these twitching
spells, Dr. Block testitied:
What she needs and what all of us need is one really good general practitioner or
internist to be your guide. You don't have to go running off to specialists for
everything, which is a great tendency in the American population .... Go sec your
family doctor and see whether the family doctor can solve it. If you have a
competent family doctor. you don't need much else in the way of medical care ...
. [I]f she feels she doesn't need or want to see a neurologist because things are
just going well, that's tine. but she has to be in touch with her internist and let that
internist help decide what ... she needs.
Roger Kelley. M.D .• a defense expert in neurology. testilied that there was a relationship
between the events on September 29. 2009 and the twitching. headaches. and cognitive
eomplaints that Ms. Ford rep0l1ed alier the hemorrhage and seizure. Specitically. he explained
that cell irritation in the brain could lead to seizure activity. It was Dr. Kelley's opinion.
however, that there was no evidence of difTuse cerebral edema on Ms. Ford's brain scans and
that, because Ms. Ford had not had a twitching spell in over a year without being on any
medication to control seizures. he expected that Ms. Ford would not need to rcsume treatment IClr
seizure disorder; in other words. assuming she in lact had a seizure predisposition alier
September 2009. that predisposition had resolved. In support of this opinion. he pointed to the
fact that the CT scans taken on January 28. 20 I0 and Fcbruary 7. 2014 showed that the
hemorrhage that had occurred in September 2009 had completely reabsorbed and that there was
no evidence of diffuse cerebral edema on those scans. Dr. Kelley also agreed with Dr. Block that.
when an individual has a prior susceptibility for seizurcs. thcre is always a risk of reoccurrence.
but that any susceptibility could be adequately controlled by. for instance. avoiding ccrtain pain
medications and sleep-deprivation. With respect to her headaches and migraines. Dr. Kelley
30

explained
ongoing,

that Ms. Ford might benefit from seeing a headache
but he noted that the four headache-inciting

menstrual

that, unless there was some continuin(!

if the problems were

factors that Ms. Ford mentioned-her

cycle, stress, weather, and sleep deprivation-are

factors among people who had not previously

specialist

not uncommon

had an eclamptic

- ineitin(!- factor

hcadache-inciting

event. Moreover.

he explained

in hcr brain. such as a brain tumor or some

other problem creating pressure on the brain. he did not expect the e\'ents of September
to lead to a long-tern1 headache

problem that could not be managed.

Finally. James Levenson.
twitching

episodes

medications

M.D .. a psychiatrist.

were not controlled

lestilied that the tact that Ms. Ford's

despite varying typcs and increasing

levcls of

and the fact that the episodes stopped when she stopped taking seizure medication

made him doubt that Ms. Ford's twitching
related to psychological

conditions

4. Cognitive

problems

episodes

were epileptic

such as depression

in nature. as opposed to being

and anxiety.

Complaints

In addition to the twitching
word-finding

29. 2009

and staring spells. alier the incident. Ms. Ford complained

and difficulty

concentrating.

of

In a visit at the Malcolm Grow Mental

Health Clinic on October 26. 2009. Ms. Ford reported that she could not read or comprehend
nearly as well as she could prior to the incident. PE No. 10 at 15010. At Ms. Ford's first visit
with Dr. Fasano on October 27. 2009. Dr. Fasano indicated
believe that the [patient's]
and distractibility:'

is causing her eognitivc

DJE NO.4 at 21. Ms. Ford continued

later visits, however.
issues. Although

depression

in her assessment

to complain

and Dr. Fasano ordered neuropsychological

Ms. Ford participated

complaints

in a ncuropsyehological

and plan: "1

of poor conccntration

of memory problems

in

testing to assess her cognitive
intake intcrvicw on January 2X.

2010, she did not follow up with testing at Bethesda Naval. Dr. Fasano ordered testing again at

31

i

fi

Walter Reed, but again Ms. Ford did not have the testing done. None of Dr. Brown's visit notes
indicate that Ms. Ford reported any cognitive complaints or impainnents during her visits
between January 11, 2011 and August 22. 2013. See DJE NO.4 at 176-79. 188-89. 191-93.

208-210,223-25,228-31.233-35.25(>-59.
At trial. Plaintiffs introduced the testimony of Paul Fedio. Ph.D. a neuropsychologist.
whose job it is to identify what effect. if any. a brain injury has on an individual's cognition.
personality, and their life generally. Dr. Fedio met personally with Ms. Ford before trial and
interviewed her and Mr. Ford. He also administered a series of tests to Ms. Ford to determine her
cognitive function, ineluding tests to determine her reading abilities. memory. verbal fluency.
executive function, and a test of "memory malingering"-a

test to determine whether Ms. Ford

was feigning any cognitive dysfunction.
Dr. Fedio's opinion was that. prior to her injury. Ms. Ford demonstrated that shc was at
least average or high-average intelligence. lIe pointed to the ooA grades Ms. Ford earned in
00

community college and the fact that she had worked as a nurse's aide. He also testified. however.
that it can be very ditlicult to detennine what someone's cognitive function was before an injury
and that "sometimes you have to flip a coin" to make that determination. Nevertheless. he
testified that post-injury. Ms. Ford now had trouble being spontaneously verbal and that she was
dysfluent, meaning that her language skills had decreased Ii'om what they once werc. Dr. Fedio
also testified that she has ditliculties eommunicating and with language expression. According to
his testing, Ms. Ford was reading at a seventh-grade level which put her in the tilth percentile of
her peers, and her reading rate was exceptionally slow at 143 words per minute. She also did
very poorly in "working memory:' in other words. she struggled to multitask and maintain
different pieces of information in her mind at the same time. and Dr. Fedio indicated that her

memory in general had declined. It was his opinion that these problcms werc ncwly acquircd and
that they "can be tied causally to the medical issues in question and can be linked directly to an
impaired level of brain functioning."' He also testilied that. bccause ofthesc cogniti\'e
difficulties, particularly her memory problems. it \\'as his opinion that Ms. Ford did not have the
ability to perfoml the tasks required of an LPN. which was Ms. Ford's dcsired profcssion.
Finally, Dr. Fedio opined that Ms. Ford would never fully recover to her prc-injury level of
cognitive function.
Dr. Block also explained at trial that diffilse cerebral cdema can cause cogniti\'e
dysfunction and that Dr. Fcdio's findings werc consistent \\'ith the diffuse brain damage that
could be seen on the Septembcr 30. 2009 MRI. But Dr. Block qualitied his opinion by stating
that he "lack[ed] any knowledge whatsoever of anything else that might contribute to the
problems [Ms. Ford] dcscribe[d]."
Dr. Kelley, on the other hand. testilied that. from a neurological standpoint. hc expccted
that any cognitive issues would have resolved within six to twelvc months from the initial injury
in September 2009. In his review of Ms. Ford's records. he did not sce any "major tissuc
involvement" that would lead to long-tcrm cognitive impairment. Additionally. defense cxpert
Cynthia Munro. Ph.D .. a neuropsychologist. also personally met with and intervicwed Ms. Ford
and administered a series of tests to determine her cognitive function live months altcr Dr. Fedio
completed his testing. According to Dr. Munro's tcsting. it appcarcd that Ms. Ford had improved
significantly during that time.12 Dr. Munro explained that. in order to objcctively determine any
reduction in cognitive capabilities. one must compare the capabilities demonstratcd on

12 Dr. Fedio explained
because Ms. Ford had
Dr. Munro explained.
generally no statistical

that the improvement could be caused by a phenomenon called '.practice effect"-Ihat
is, that
taken similar tests only five months prior. she was able to improve.: the second time around.
hO\\/cver. that she administered an altemativc version oCthe same tests and that there is
difference ill scores when those different versions arc administered ill a 5h0l1 period oftimc.

33

neuropsychological

testing after September 29. 2009. with data establishing her baseline

capability before September 29, 2009. But Ms. Ford did not have any neuropsychological testing
performed until the instant litigation ensued. The only objective data available to establish ;\1s.
Ford's baseline level of cognitive function are her elcmentary school. high school and
community college records and standardized testing completed when she was in sixth grade.
which, according to Dr. Munro, demonstrated that Ms. Ford was "pcrfectly averagc" in hcr
cognitive abilities. Dr. Munro testified that this objective data indicates that Ms. Ford's cognitive
function as determined by the neuropsychological

testing is comparable to her basel inc. By way

of example. Dr. Munro explained that hcr tcsting showcd that Ms. Ford had an avcragc IQ 01'93
and that she performed in thc 97th pcrcentilc with respect to vcrbal comprchension.
Additionally. as part ofhcr intervicw. Dr. Munro asked Ms. Ford what hcr plans werc lor
the futurc. Ms. Ford rcspondcd that shc had wanted to return to school and bccome a nursc but
that every time she thinks she can do so. shc rcalizcs she cannot "duc to migraines and bcing
exhausted from caring lor her childrcn": Ms. Ford also complaincd that she felt that shc is casily'
frustrated and has too many responsibilities.
In any evcnt. the absence of any neuropsychological tcsting prior to Ms. Ford's injury
makes it ditTtcult to discern the level of cognitive impairment ;-"Is.Ford might have suffercd as a
result of the hemorrhage and scizure.
III.

CONCLUSIONS

OF LAW

The FTC A confers jurisdiction on district courts to hear claims "I(lr ... personal injury or
death caused by the negligent or wrongfiJl act or omission of any employee of the GO\'ernment
while acting within the scope of his oflice or employment. undcr circumstances where the United
States, if a private person. would be liable to the elaimant

34

28 U.S.c.

* I346(b)( I). The

FTCA thus serves as a waiver of the Government"s sovereign immunity. 5,'eeWelch v. Uniled
Slales, 409 F.3d 646, 651 (4th Cir. 2005). In cases arising under the FTeA. the Government is
liable "in the same manner and to the same extent as a private individual under like
circumstances ... :. 28 U.S.c. ~ 2674. Because the allegedly negligent acts exposing the
Government to liability in this case occurred in Maryland. Maryland law governs Plaintiffs'
claims. See 28 U.S.c. ~ 1346(b)(l).
In Maryland, to recover for injuries caused by alleged medicalmalpraclice.

a plaintiff

must prove, by a preponderance of the evidence. (1) the applicable standard of care: (2) that this
standard has been breached: and (3) a causal relationship between the violation and the injury.
See, e.g., Weimer v. Helrick. 525 A.2d 643. 651 (Md. 1987): Lawson v. Uniled Slales. 454 F.
Supp. 2d 373, 416 (D. Md. 2006). It is well established in Maryland that
[TJhe burdell of proof in a malpractice case is on the plaintiff to show a lack of
the requisite skill or care on thc part of the physician and that such want of skill or
care was a direct cause of the injury ....
General rules of negligencc apply to
malpractice eases .... Thcrefore. to constitute actionable negligence. there must
be not only causal connection between the negligence complained of and the
injury suffered ... but it must be the proximate cause.
Reed v. Campagnolo. 630 A.2d f145. 1148 (Md. 1993) (internal quotation marks and citations
omitted).
A. Standard of Care
Physicians owe a duty to use the care expectcd of a reasonably competent practitioner of
the same class and acting in the same or similar circumstances. Upper Chesapeake Ileallh Clr..
Inc. v. Gargiulo. 223 Md. App. 772, cerl. denied suh

/1011/ .•

Upper Chesapeake .lIed Or. v.

Gargiulo, 123 A.3d 1007 (Md. 2015) (quoting Dingle \'. Beli,1. 749 A.2d 157. 162 (Md. 2000».
Under this standard. the trier of fact must take into account "advances in the profession.
availability of facilities. specialization or general practice. proximity of specialists and special
35

facilities,
HO.ljJ.

together with all other relcvant considerations

:. Shilkrel \'. AI/I/apolis i:mergel/(l'

...

Ass '1/,349 A.2d 245. 253 (Md. 1975). "[T]he defendant's

is generally

a topic calling for expert testimony

...

use of suitable professional

skill

: . .Johns f/opkillS f/o.lpira/ \". Gem/a. 25R

A.2d 595, 599 (Md. 1969).
Plaintiffs

argue that Dr. Harper breached the standard of care when she tililcd to diagnose

Ms. Ford with preeclampsia

on September

28, 2009. and, more specilically.

the standard of care by not at least conducting
the negative

literature. the Williams

may be diagnosed

"The degree of proteinuria
Therefore

rather than relying on

dipstiek result from Calvert Hospital the day beltHe. The Court agrees. Although

least one pieee of medical
preeclampsia

her own test for proteinuria.

that she brcached

Obstetrics

textbook.

at

indicates that

by a I + reading on a urine dipstick. that same textbook states:

may Iluctuate wildly over any 24 hour period even in severe cases.

a single random sample may fail to demonstrate

e\'en signilicant

even if it was within the standard of care It)r Dr. Christianson

proteinuria:'

Thus.

to rely on a single dipstick in the

hospital setting, as the jury in tact tt)und after trial. the one urine dipstick test ordered by Dr.
Christianson

at Calvert Ilospital

precclampsia

the tollowing

was not sufficient

day on September

to rulc out whether Ms. Ford had

28. 2009.

Indeed, it is clear from the medical literature and the expert testimony
dipstick test ordered by Dr. Christianson
protein in her urine allhallime.
on the negative

only ruled out that Ms. Ford did not have elevated

Thus. although

urine dipstick and conclude

it was not improper

one considers

ftH Dr. Christianson

that it was proper to discharge

further testing, because .. [tJhe degree of proteinuria
even in severe cases'"

that the urine

Ms. Ford without

may Iluctuate wildly over any 24 hour period

the same cannot be said of Dr. Harper. This is particularly

the different

roles an emergency

room doctor and an obstetrician

36

to rcly

apparent when
serve in

treatment: Dr. Christian. as an emergency room doctor. was concerned with treating any
emergel1c)~something

that could not wait for follow-up by another physician. Dr. Harper.

however. a doctor in the OB Clinic. had greater opportunity for diagnosing what was causing
Ms. Ford's elevated blood pressure.
The Court recognizes. as it must. that doctors olien are incapable of identi fying the
singular cause of a particular symptom. But in this instance. Ms. Ford should not have been
discharged with severe hypertension without a more thorough analysis to eliminate the
possibility that preeclampsia was the cause of that hypel1ension. Although thc record indicates
that Dr. Harper did indeed consider the possibility that Ms. Ford had preeclampsia. she did not
order a 24-hour urine test or even another urine dipstick test. Ms. Ford may not have had protein
in her urine the night before at Calvert llospital. but. because the protein levels can vary widcly
over a 24-hour period. the Court believes that it is more likely than not that. had Dr. Harper
sought to independently ascertain the levcl of protein in Ms. Ford's urine on September 28.2009.
she would have discovered that Ms. Ford suffered fj'OIn preeclampsia.
In any event. even if the Court did not conclude that it was a breach of the standard of
care to not conduct another test for proteinuria on September 28. 2009. the Court would still lind
that it was a breach of the standard of care to rclease Ms. Ford with severcly elevated blood
pressure in the absence of evidence that Dr. Harper adequately treated her hypertension. Notably.
Dr. Caughey testitied that. aside from the issue of whcthcr Ms. Ford had elevatcd protein in her
urine on Septcmber 28. 2009. his main concern would be her severely c1cvatcd blood prcssure. In
order to satisfy the standard of care. Dr. Harper was required. according to Dr. Caughcy and as
the Court now finds. to lower hcr blood prcssure as quickly as possible so as to avoid the
possibility of Ms. Ford sulfering a cerebral hemorrhage.

37

Ms. Ford's only recorded blood pressure from the Malcolm Grow clinic on September
28.2009 was 181/90. which is severely elevated. Although Dr. I-Iarper testified that more blood
pressure measurements "would have" been taken because that was the clinie's standard operating
procedure, the Government cannot establish that more measurements were in fact taken and. if
so, what they were. The Government. in essence. asks the Court to take a circular route to its
desired destination: to tind that the Government doctors did not negligently discharge Ms. Ford
with severely elevated blood pressures-by
take additional blood pressures-and

assuming they would not have negligently 1~liledto

lurther assuming that those blood pressure readings were

low enough that discharging Ms. Ford was not negligent. In order words. the Government asks
the Court to conclude that its doctors did not commit malpractice because their standard
procedure would be to not commit malpractice. The COlll1will not do that. To the extent the
Court is left to guess what Ms. Ford's blood pressure was at the time she was discharged from
the Malcolm Grow 08 Clinic. such a gap in evidence is due entirely to the Government's failure
to record it.
Thus, given the consistently elevated blood pressures that Ms. Ford experienced over a
24-hour period, the lack of evidence that those pressures had been reduced or adequately
addressed. and the events that occurred the following day. the Court concludes that it is more
likely than not that Dr. Harper breached the applicable standard of care on September 28. 2009.
B. Causation
Having determined that the standard of care was breached on September 28. 2009. the
Court now must determine whether that breach caused Ms. Ford's injuries. Departure ti'omthe
standard of care does not. in and of itselL warrant a tinding of medical malpractice: it is the
plaintiffs burden to show that such want of skill or care directly caused the injury. Scc. C.g.,

38

Lane v. Calvert. 138 A.2d 902. 905 (Md. 1960): Mackey \'. Dorsey. 655 A.2d 1333. 1343 (Md.
Ct. Spec. App. 1995). In demonstrating proximate causation. "the plaintiff must prove the
defendant's breach of duty was more likely than not (i.e .. probably) the cause of the injury."
Hurley v. United States. 923 F.2d 1091. 1094 (4th Cir.1991). This cannot be established based
solely on speculation or conjecture. See Baulsir \'. Sligar. 293 A.2d 253. 255 (Md. J 972) (noting
that a "plaintiff has not met [her] burden if[ s Jhe presents merely a scintilla of evidence where
the [finder of fact] must resort to surmise and conjecture to declare [her] right to recover.").
Plaintiffs' theory of causation is as lollows: as a result of Dr. Harper's failure to
adequately treat Ms. Ford's high blood pressure and her failure to diagnose and treat Ms. Ford
for preeclampsia. Ms. Ford ultimately suffered from an intracerebral hemorrhage and an
eclamptic grand mal seizure. The severe hypertension / eclampsia. in turn. caused the findings of
PRES and restricted ditTusion on Ms. Ford's MRI. The hemorrhage created a nidus lor future
seizure activity. and the restricted dilTusion caused certain cognitive defects.
Ms. Ford's medical records arc. indeed. replcte with references to a "hypertensive
intracerebral hemorrhage," and. specifically. that Ms. Ford had a "history of right frontal
hemorrhage and seizure [due to] hypertension (cclampsia post-partum)." See. e.g. PE No. 50 at
11084; see also id at 11045. 11086. 11105.

J

1574. And. in further support ofPlaintifis'

theory

of causation. they offered the testimony of several experts. First. Dr. Caughey. who. in addition
to testifying as a standard of care eXpet1. was also qualified as an expet1 with respect to the issue
of causation, testified that if Ms. Ford's blood pressure was adequately controlled. she \\'ould not
have had a brain bleed or seizure. He stated that the hemorrhage was caused by hypertension.
regardless of whether or not that hypertension was caused by preeclampsia. Dr. Jahre also
explained that, with respect to her finding of PRES on the MRI scans taken on September 30.

39

2009, she was aware of no other causes in Ms. Ford's medical records other than preeclampsia
and eclampsia. Finally. Dr. Block testitied that. in reviewing Ms. Ford's CT scans and MRI. he
found that she "demonstrated evidence of signiticant hypertension. evidence of edema
throughout the brain and a small brain hemorrhage. which rapidly led to a grand mal tonic-clonic
seizure ... :. Dr. Block and Dr. Fedio. Plaintiffs' experts in neurology and neuropsychology.
respectively. each testified that. in their opinion. these injuries would have long-lasting effects
and were not expected to be "cured:' As previously mentioned. Dr. Block opined that Ms. Ford's
seizure tendency would never relent. and Dr. tedio testified that he expected that Ms. Ford
would never fully recover her pre-injury levcl of cognitivc function.
But defense experts contended that. even assuming Ms. Ford suffered from a seizure
tendency atter September 29, 2009 or suffered some cognitive defects in the immediate
aftern1ath of her injury. they would not expect Ms. Ford to suffer any long-tenn disabilities as a
result of the hemorrhage-which

was reabsorbed as of January 28. 20 IO-or the grand mal

seizure she experienced while in the hospital.
Additionally. two defense experts testified to provide an alternative theory of causation to
undermine Plaintiffs' case. Dr. Monsein. a neuroradioiogist. and Baha Sibai. M.D .. an expert in
maternal fetal medicine and pregnancy-related conditions. specitically preeclampsia. eclampsia.
and cerebral angiopathy. both testified that hypertension-induced cerebral bleeds or hemorrhages
are typically found in the basal ganglia region of the brain.13 That region of the brain has highly
sensitive end vessels that arc particularly sensitive to hypertension. but the same sensiti\'C end
vessels are not found in the frontal lobe of the brain. Ms. Ford's hemorrhage was not located in
the basil ganglia region of the brain. but rather was in the frontal lobe. an area of the brain that is
not typically associated with hypertension. Dr. Monsein agreed with Plaintiffs' expert. Dr. Jahre.
13

Plaintiffs' expert. Dr. Jahre, agreed with this point on cross-examination.

40

that the September 30.2015 MRI showed PRES. but Dr. Sibai explained that there are several
possible conditions associated with a linding of PRES in a postpm1um patient. including
preeclampsia or eclampsia. cerebral angiopathy. hypertensive encephalopathy. cerebral venous
thrombosis, and the use of immunosuppressive

medications.

Through process of elimination. Dr. Sibai testified that. in his opinion. Ms. Ford's
injuries were the result of cerebral angiopathy. rather than undiagnosed preeclampsia or
eclampsia. Dr. Sibai explained that Ms. Ford never met the diagnostic criteria lar preeclampsia.
but that he also felt that her symptoms more closely correlated with cerebral angiopathy. In
particular, Ms. Ford's concerns began with a sudden onset headache, what Dr. Sibai
characterized as a "thunderclap headache:' which occurred live days postpartum. This was.
according to Dr. Sibai. the classic presentation and timing far cerebral angiopathy. Postpartum
preeclampsia. on the other hand. typically occurs in the lirst 48 hours after birth. according to Dr.
Sibai. The later onset headache. he testified. supported his conclusion that cerebral angiopathy is
the more likely cause. Dr. Sibai found further support in his conclusion from the fact that Ms.
Ford took certain prescription medications during the pre- and post-natal period that arc
associated with cerebral angiopathy. namely. Zolon and Motrin. which can cause
vasoconstriction. or a spasm of the arteries in the brain. See. e.g. D.lE 2 at 93. 99.174.196:

D.lE

3 at 6, 32, 86. Additionally. Dr. Sibai testified that the body changes that Ms. Ford was
experiencing in the postpartum period. specilically, the reabsorption of the volume of fluid that
once occupied the placenta. would have a vasoacti ve effect. On cross-examination. however. Dr.
Sibai agreed that. to make a diagnosis of cerebral angiopathy. one ,,'ould have to lind a "string of
beads" appearance on the cerebral arteries. which can only be shown on an angiogram. Ms. Ford.
however, never had an angiogram.

41

Finally. because cerebral angiopathy can occur in hypertensive and non-hypertensive
patients, Dr. Sibai explained that there is no evidence that treatment of hypertension would
prevent cerebral angiopathy. and thus. it was his opinion that treating Ms. Ford's elevated blood
pressure with intravenous medication. or higher dosage oral medication while monitoring blood
pressure during a prolonged stay at Malcolm Grow Clinic on September 28.2009 would not
have prevented the hemorrhage and seizure. The Government's theory of causation. therefore. is
that Ms. Ford's hemorrhage and seizure were more likely than not caused by cerebral
angiopathy, which caused vasoconstriction. which then caused the hemorrhage and seizure. In
other words, the hemorrhage was more likely than not the result of vasoconstriction that occurred
independent of hypertension.
As the foregoing discussion shows. the task of determining the issue of causation in this
case is far from an easy one. It is worth noting again that the Court is operating under a
preponderance of the evidence standard. Upon careful consideration of this contlicting evidence.
the Court concludes that it is more likcly that not that the failure to diagnose preeclampsia and
the failure to adequately control Ms. Ford's blood pressure on September 28 caused a
hypertensive bleed and an eclamptic seizure.
In short. all doctors diagnosing Ms. Ford in real-time concluded that she suffered an
eclamptie seizure on September 29. 2009 and that she had a brain hemorrhage caused by
hypertension. Many of the experts who testified at trial agreed with that diagnosis. Although Drs.
Sibai and Monsein raise reasonable doubts as to these opinions. their testimony did not tip the
scale far enough under a preponderanee of the evidenee standard to cause the Court to conclude
that some other illness. missed by all of the doctors diagnosing Ms. Ford at the time and
unrelated to the breaeh of the standard of care by Dr. Harper. caused her injury. Notably. while

42

Dr. Sibai is of the opinion that cerebral angiopathy caused the hemorrhage. he acknowledged that
he cannot diagnose cerebral angiopathy without observation of a "string of beads" on an
angiogram, which did not occur here. And. although Dr. Monsein agrees with Dr. Sibai that a
hypertensive bleed "usually" appears in a dilTerent section of the brain. i.e.. the basal ganglia. no
witness at trial testilied that a hypertensive bleed could never occur in the frontal lobe where Ms.
Ford's hemorrhage occurred. or that it was so unlikely to occur there that Plaintiffs' theory of
causation had to fail under a preponderance of the evidence standard.
The fatal limitation in Dr. Sibai's testimony is that he reaches his conclusion through a
proeess of elimination rather than by diagnosis. In other words, he cannot say that Ms. Ford in
fact had cerebral angiopathy: he can only say that it is the one syndrome on the list that he cannot
exclude. Indeed. there is an inherent contradiction in Dr. Sibai's testimony. He says that Ms.
Ford's case is difficult to diagnose, yet he lands on a "diagnosis" by dismissing the idea that this
could be an unusual demonstration of hypertension or preeclampsia and lands on cerebral
angiopathy without performing the test that is necessary to conlinn it.
Ultimately, to rule for the Government on the issue of causation would require the Court
to say that, despite having severe hypertension that was not adequatcly treatcd and more likely
than not having preeclampsia that went undiagnosed. Ms. Ford coincidentally had another
unrelated condition that caused her to have a brain bleed and that such condition was missed by
all of the doctors evaluating her at the time. The Court. of course, cannot definitively refitte that
possibility. But it need not do so in order to rule for the Plaintiffs. Thus. the Court concludes that
it is more likely than not that Ms. Ford's untrcatcd hypertension and undiagnosed preeclampsia
caused the injuries shc sustained on Septcmbcr 29. 2009.

43

Nonetheless, as will be further explained below in the discussion of damages, the Court
finds that it is more likely that not that although Ms. Ford may have sufTered certain short-term
etTects from the hemorrhage and seizure-including
dysfunction-any

the twitching episodes and some cognitive

such injuries have since resolved. and the longstanding impact of the events of

September 29,2009 is mild. if there is any impact at all. Indeed. no injury II'om which she
presently suffers cannot be said to tind its roots. if not its trunk and limbs. in a condition that
preexisted the medical malpractice that occurred in this case.
In summary. the Court concludes that Dr. Harper's breach of th_estandard of care caused
Ms. Ford injury-a

brain hemon'hage and seizure-and

that those injuries may have included

some cognitive difficulty and t\vitching in the immediate aftermath of the hemorrhage and
seizure. But the Court further concludes that it is more likely than not that those injuries have
overwhelmingly resolved, such that Ms. Ford faces little. ifany. increased difficulties or
lingering injury connected to Dr. Harper's breach of the standard of care.
C. Damages
Maryland law again controls the Court's detennination as to the nature and measure of
damages to be awarded. See. e.g, LGll'son. 454 F. Supp. 2d at 4 I 7 (citing Riclwrd,'
Stales, 369 U.S. I. 6,13-14.82

S

I346(b) and

Ul1iled

S.C!. 585 (1962)): Burke \'. Ul1iledSlales. 605 F. Supp. 981.

987-88 (D. Md. 1985) (citing Ul1iledSlales
28 U.S.c.

I'.

S 2674).

I'.

MUl1iz.374 U.S. 150. 153.83 S.C!. 1850 (1963):

"Maryland law entitles a plaintiff to recover the reasonable

value of all damages caused by a defendant's wrongful conduct:'

Lml".I'IJ/I.

454 F. Supp. 2d at

417. The law in Maryland is clear that a tortleasor is responsible for any aggrm'ation ofa
preexisting condition. even where that condition constitutes an injury or disability. See, e.g.

44

Harris v. Jones, 380 A.2d 611. 616 n.2 (Md. 1977): Feeney

l'.

Dolan. 37 J A.2d 679. 688 (Md.

Ct. Spec. App. 1977).
I. Past and Future Care Needs
The Court tirst considers what medical and other care expenses Ms. Ford is entitled to
recover as a result of her injuries. "Maryland law entitles a plaintilTto recover the reasonable
value of all damages caused by a defendant's wrongful conduct. including damages for past
medical care, and damages for future medical care." Lawson. 454 F. Supp. 2d at 417 (citing Mt.
Royal Cab Co.

l'.

Dolan. 171 A. 854. 854 (Md. 1934): Walsloll \'. Doh!Jin,I'. 271 A.2d 367. 371

(Md. Ct. Spec. App. 1970)). Damages for medical and other future expenses are recoverable
under Maryland law ifit is more likely than not that the expcnse will be incurred. See hi. (citing
Burke, 605 F.Supp. at 988). Wherc a plaintiff secks to recover lost future benclits. "it is the
plaintilfs burden to provc damages with a reasonable amount of certainty." Lell'in Really III, Inc.
v. Brooks, 771 A.2d 446, 476 (Md. Ct. Spec. App. 2001). a{rd. 835 A.2d 616 (Md. 2003).
abrogated on olher grounds by R1!ffin Hotel Corp. '?fA/myland

l'.

Gasper. 17 A.3d 676 (Md.

2011 ).
Although the C01ll1ruled beforc trial that Plaintiffs werc not pcrmittcd to introduce
evidence of certain costs that were predicted to have becn nceded but were not actually
incurred-such

as medical care. child care. or other related costs which an expert projected

would be incurred between the time of injury and trial-the

Court also ruled that the Fords may

be entitled to recover damages by introducing evidence of the money they actually expended to
cope with Ms. Ford's injuries from September 29.2009 up through the time of tria\. See ECF
No. 185 at 3. For reasons unknown to the C01ll1.however. no evidence was introduced to
establish any past expenscs the Fords actually incurred as a result of Ms. Ford's it~iury. The only

45

evidence with respect to this category of damages sought to establish the costs of Ms. Ford's
future care needs. Specitically. Estellc Davis. Ph.D. CRe. a rehabilitation counselor. testilied
that, due to Ms. Ford's ongoing cognitive dysfunction and seizure tendency. she required certain
care services to be able to adequately cope with the limitations caused by her injuries. Those care
services included. inter alia. in-home ehildcare. cleaning sen"ices. individual therapy. and speech
therapy. Dr. Davis also testitied with respect to the amount of compensation Ms. Ford requires to
cover the cost of medication for seizures. headaches. and depression for the rest of her life.
The Court concludes. however. that these damages are not necessary to compensate Ms.
Ford in the future. Although Ms. Ford may have had difliculty caring for her children. cleaning
the house, and otherwise adjusting to normalcy in the immediate aftermath of her injury.
Plaintiffs did not satisfy their burden of proving that such diniculties persist to the present.
Indeed, Mr. Hysmith. Ms. Ford's new husband. testified that she keeps a very clean home. she
does a good job caring for the children and for himself. that she drives herself and the children as
necessary, and that, in all. they have a wonderful relationship. That Ms. Ford also cared for the
children on her own in the brief period of time between her separation from Mr. Ford and her
courtship with Mr. Hysmith also undenllines her claim that she. even as 01'2012. let alone today.
continues to suffer such debilitating effects from this injury so as to make her incapable of
keeping up with household chores and caring for her children.
Additionally. medications to treat seizures are no longer necessary given that Ms. Ford
has not had a seizure in well over one year without seizure medication. Indeed. Plaintiffs' own
expert, Dr. Block, testified that under these circumstances. all Ms. Ford needs is "one really good
general practitioner or intemist:' undermining Dr. Davis's testimony that neurology loll ow-up
was required for the rest or Ms. Ford's life. The Court is persuaded that even assuming Ms. Ford

46

suffered from seizure phenomenon after September 29.2009. any such seizure predisposition has
resolved. But even if that were not the case. the Court would not bc inclined to award Ms. Ford
damages for seizure medicine. Because Ms. Ford can only rccover such damages ifit is morc
likely than not that the cxpensc will be incurred. scc [awsoll. 454 F. Supp. 2d at 417. ifshe will
not be taking any seizure medication because she would rather pursue holistic remcdies. there is
no need for the Court to compensate for that expense. And. even assuming compensation ror
such holistic remedies such as Essential Oils would othcrwise bc pcrmissible under the law. no
evidence was introduced at trial to prove the ongoing costs of Essential Oils.
So, too, with respect to Ms. Ford's ongoing headaches and migraines. To thc extcnt that
Ms. Ford will rely only on Essential Oils or othcr holistic rcmedies to treat her hcadachcs. shc
has not proven that the cost of headache medicinc is that which she is likely to incur in the
future. And. in any event. she has not proven that it is more likely than not that her ongoing
headaches are the rcsult ofhcr injury. Although it seems that she continucs to suiTer from
headaches today. an issue that shc did not suffer prior to her injury. the evidence adduccd at trial
frequently indicated that her headaches were triggercd by menses. weather. strcss. and lack of
sleep--triggering

factors that are common amongst people who have not surJered an eclamptic

seizure. Additionally. even if court was inclined to allow Ms. Ford to rccover thc cost or
headache medicine going into the future. there is insuflicient evidence in the record to allow the
court to do so; no testimony established the cost or any headache medic inc. let alone what it
would cost over her liJetime. reduccd to present value. [c1rill Rca/ly 111.771 A.2d at 466
("Future damages must be established with reasonable certainty. and must not rest upon
speculation or conjecture:').

47

Finally, from the Court's observation of Ms. Ford's testimony over a two-day period
during triaL the Court cannot deny that Ms. Ford suffers from somc amount of anxiety. and it
does not dispute that she also is battling depression. But it also cannot bc denied that Ms. Ford's
medical records are rifc with references to a history of deprcssion and anxiety that predated the
events at issue in this ease, going back to her high school years. Even if the Court could say that
her depression and anxiety is, by somc quantifiable measurc, grcater now than it was before the
injury, the Court cannot say that this was more likely than not caused by her injury, rather than a
problem with which she has always coped but for which she is n<m' no longer taking medication.
Thus, the Court concludes that an award of fllture care needs is not appropriatc in this case.
2. Loss of Earning Capacil)'
In Maryland, a plaintiff may recover damages for loss of earning capacity that may
reasonably be expected in the Illtme. Adams v. 8cnsoll, I 17 A.2d 881,885 (Md. 1955). "The
amount recoverable is the difTerence between the amount of money which the plainti tTwas
capable of earning before the injury and the amount which he or she is capable of earning
thereafter." Burke, 605 F. Supp. at 998 (emphasis omitted) (internal quotation marks and citation
omitted). "As with the calculation ofiliture medical care, an item is recoverablc ifit more likely
than not would have occurred"

[([11'.1'011,

454 F. Supp. 2d at 424 (citing Burke. 605 F. Supp. at

988; Pierce, 464 A.2d at 1026).
It was undisputed that Ms. Ford's intention. had she not been injured. was to become an
LPN. Plaintiffs argue that. because of her injury. Ms. Ford has suffered trom a severe cognitive
decline such that she is now incapable of completing the necessary education or to complete the
day-to-day tasks required to practice as a nurse. In support of this argument. Plaintiffs principally
rely on the testimony of Dr. Fedio and the results of his neuropsychological testing. as well as

48

Dr. Block's testimony that the MRI Iinding of diffuse cerebral edema is consistent with findings
of cognitive dysfunction. The problem with the neuropsychological cvidcncc. howcvcr. is thc
absence of any ncuropsychological

testing prior to Ms. Ford's injury that could scn'e as a

comparative baseline to her capabilities post-injury. And. although Ms. Ford had earncd high
marks in some courses in high school and community collcgc bcfore her injury. she also earned
many Cs, Ds, and failing grades throughout her academic carcer. Dr. Fedio's tlndings, thereforc,
may have only bcen a rellection of the fact that Ms. Ford. like everyonc clse. has ceI1ain
strengths and weaknesses in different areas.
That, coupled with the fact that there is a possibility that thcrc was

110/.

in fact. any

diffuse edema on the MRI scans. and rather, that the dark areas found on thc OWl imagery were
the result ofT2 shine through. as explained by Dr. Monsein. raises enough doubt that the Court
is unable to conclude that it is more likely than not that Ms. Ford has suffercd any long-term
cognitive defects that would prcvcnt hcr Irom attaining the same levcl of profcssional
achievement of which she was capablc prior to her injury.l~
3. Noneconomic Damages

a. Ms. Ford's Pain and Suffering
Ms. Ford's physical pain and suffcring may be considered as an e1cmcnt of damagcs.
Greenstein v. Meisler. 368 A.2d 451. 461 (Md. 1977). Similarly. the mcntal and cmotional
suffering and anxiety cxperienced as a rcsult of the injurics and their li.Iturcconscquences is also
compensable, White v. Parks. 140 A. 70. 72-73 (Md. 1928). as is the loss of Mrs. Ford's

14 Additionally.
even if Ms. Ford suffered certain cognitive dysfunction in the immediate aftermath of her injury. Dr.
Kelley testified that. from a neurological standpoint. he expected any such issues to resolve within six to t\velvc
months of her initial injury, a time during which Ms. Ford admittedly had no intentions of returning to the workforce.

49

capacity to enjoy the usual and familiar tasks of lite. A/cAlisler

I'.

Carl. 197 A.1d 140. 146 (Md.

1964).
Here. the Court has no doubt that Ms. Ford suffercd physically. mcntally. and
emotionally in the immediate aficnnath of her injury. Indced. the pain and suffering expericnccd
during the grand mal seizure shc had to cndurc on September 19.1009 would alonc bc rcason to
provide compensation. Additionally. Ms. Pord struggled to obtain normalcy in thc immediatc
aftermath of her injury. suffering from hcadaches. twitching. and lethargy. as wcll as the
emotional strain ofbcing unable to care lor hcr newborn daughtcr. Upon considcration of the
foregoing factors. but also considering that her injuries were relatively short-livcd. the Court
concludes that an award of S500.000 would adequately compensate Ms. Pord for thc pain and
suffering she had to endure as a result ofthc medical malpractice that causcd her injury.
b. Loss of Consortium
Finally. the damage to Plaintiffs' marital relationship as a rcsult of Ms. Ford's injurics is
compensable in Maryland. Loss of consortium is a rcmcdy f(lr an injury to the marital cntity
arising from ""theloss of socicty. affection. assistancc. and conjugal fcllowship suffered by thc
marital unit as a result of the physical injury to onc spouse through the tortious conduct of a third
party."" Oaks \'. Conners. 660 A.2d 423. 418 (Md. 1994): see also Deems \'. Weslem MiI/:l'land

Ry., 231 A.2d 514, 521 (Md. 1967). When either spousc claims loss of consortium due to injuries
sustained by the other. ""thatclaim can only be asserted in ajoint action for injury to the marital
relationship ... [and] is to be tricd at the same time as the individual action of the physically
injured spouse."' Deems. 231 A.2d at 525. Damagcs awardcd from an action for loss of
consortium are defined as ""noneconomic damages" and. becausc a loss of consortium claim is
"derivative ofthc injured spouse's claim for personal injury. , . a single cap for noncconomic

50

damages applies to the whole action:' Oaks. 660 A.2d at 430: see a/so Md. Code Ann .. Cts. &
Jud. Proc.

S

11-108.

Having already discussed in detail the Court's conclusions regarding the extent of Ms.
Ford's injuries. the Court will not belabor the point here. Suffice it to say that it is clear that Ms.
Ford suffered injuries in the immediate aftermath of the hemorrhage and seizure. which made it
difficult, at that time, to complete typical household chores. to care for the children. including
newborn SF, and to be intimate with Mr. Ford. Even though these injuries improved, the strain
on the Fords' relationship was significant. particularly becausc. as Ms. Ford improved. Mr. Ford
seemed to still want to till in the role as her caretaker. Ms. Ford's desire to obtain more
independence ultimately led to the end of their marriage. Ms. Ford's injuries. therefore, clearly
damaged the Fords' marital relationship. and the Court concludes that an award 01'$100.000 is
sufficient to compensate them for that damage.
IV.

CONCLUSION
In accordance with the foregoing tincjings of fact and conclusions of law. the Court will

enter judgment for the Plaintiffs and against the Government in the amount of $600.000.
Additionally. the Court will entcr judgmcnt in favor of thc Private Defendants in accordance
with thc jury's verdict. The Motion for Judgment as a Matter of Law made by the Private
Defendants prior to the end of trial. ECF No. 212. is denied for the rcasons stated on the record
on December 14. 2015. and Plaintiffs Motion to Strike Defendant's Proposed Findings of Fact
and Conclusion of Law. ECF No. 237. is denied. A separate Order follows.

Dated: March ~.

~j---

2016

•

GEORGE.J. HAZEL
United States District Judge

51