Walker et al v. United States of America

Filing 51

MEMORANDUM OPINION. Signed by Magistrate Judge Beth P. Gesner on 12/17/2018. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
WARREN WALKER, et al.,

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Plaintiffs,

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v.

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UNITED STATES OF AMERICA,

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Defendant.

Civil No. BPG-16-3623

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MEMORANDUM OPINION
Plaintiffs Warren Walker, Jerry Dorsey, and Jalisa Carrington brought this negligence
action against the United States of America, through its agents and agencies, including the U.S.
Department of Health and Human Resources, which operated and funded the Baltimore Medical
System and the Belair-Edison Family Health Center. This Memorandum Opinion and the Order
that accompanies it address plaintiffs’ claim.
I.

PROCEDURAL BACKGROUND
On April 5, 2018, with the consent of the parties, this matter was referred to the

undersigned for all proceedings. (ECF Nos. 26, 35, 36). On September 26, 2018, and September
27, 2018, a two-day bench trial was conducted. (ECF Nos. 45, 46). I have carefully considered
the exhibits admitted into evidence (Joint Exhibits 1–3, Plaintiffs’ Exhibits 1–5, Defendant’s
Exhibits 1, 3), the testimony of the witnesses (Dr. Carissa Guishard-Gibson, Dr. Marc Itskowitz,
Jerry Dorsey, Warren Walker, Jalisa Carrington, Dr. Michael Hattwick, and Dr. E. James Britt),
and the written submissions of the parties. For the reasons set forth below, I find that plaintiffs
have failed to establish their claim for negligence. Pursuant to Rule 52 of the Federal Rules of
Civil Procedure, my findings of fact and conclusions of law are set forth separately below.

II.

FINDINGS OF FACT
On August 18, 2014, Vanessa Kelly, aged 62 years old, attended a 3:15 p.m. scheduled

appointment at the Belair-Edison Family Health Center (“BEFHC”). BEHFHC is a delivery site
for the Baltimore Medical System, which is eligible for Federal Tort Claims Act (“FTCA”)
coverage by the Secretary of Health and Human Services (“HHS”) pursuant to the Federally
Supported Health Centers Assistance Act (“FSHCAA”). Ms. Kelly was treated by Carissa
Guishard-Gibson, M.D., an employee of the Baltimore Medical System. Ms. Kelly reported to
Dr. Guishard-Gibson that she was experiencing shortness of breath (“SOB”) that had worsened
over the past week and that intensified after taking a few steps. Ms. Kelly reported that the
severity of her SOB was 9. Ms. Kelly also complained of pleuritic pain, a cough that was
initially productive but then dry, wheezing, and palpitations.
A BEFHC medical assistant took Ms. Kelly’s vital statistics: blood pressure 122/80, pulse
97, oxygenation 95% on room air, and respirations 20. Ms. Kelly’s history was also taken and
Ms. Kelly reported that she had hypertension but that she rarely took her blood pressure
medication. Dr. Guishard-Gibson physically examined Ms. Kelly by listening to her heart and
lungs. Dr. Guishard-Gibson documented Ms. Kelly’s respiratory and cardiovascular findings as
normal. Dr. Guishard-Gibson also noted that Ms. Kelly did not appear sick as though having
pneumonia or an upper respiratory infection. Dr. Guishard-Gibson diagnosed Ms. Kelly with
acute SOB and prescribed bronchodilators and a cough suppressant. She also ordered a chest xray and told Ms. Kelly to follow-up with her primary care physician within a week.

Dr.

Guishard-Gibson generated a patient note for Ms. Kelly at 4:12 p.m. following the conclusion of
Ms. Kelly’s appointment.
Ms. Kelly then drove herself and her adult daughter, Jalisa Carrington, to Walmart to fill
her prescriptions. Ms. Kelly shopped while waiting for her prescriptions to be filled, but her
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condition began to deteriorate. At 5:34 p.m., 911 was called. An ambulance arrived at 5:40 p.m.
and emergency medical services (“EMS”) workers began to administer medical care to Ms.
Kelly. The ambulance arrived at Franklin Square Hospital (“FSH”) at 6:01 p.m.
Upon arrival at FSH, Ms. Kelly was admitted, and hospital physicians ordered tests
including a chest x-ray, echocardiogram, computed tomography (“CT”) angiography, and blood
tests. At 7:28 p.m., Ms. Kelly went into cardiac arrest.

The emergency room physicians

administered a thrombolytic agent, tissue plasminogen activator (“tPA”), and at 7:50 p.m., a
consistent pulse was established. At 9:25 p.m., Ms. Kelly was transported to the intensive care
unit (“ICU”). At 10:38 p.m., Ms. Kelly went into cardiac arrest again. The doctors were unable
to resuscitate her, and Ms. Kelly was pronounced dead at 11:02 p.m. An autopsy revealed that
Ms. Kelly had both acute and chronic pulmonary emboli. The cause of Ms. Kelly’s death was
recorded as “due to (or as a consequence of) pulmonary embolus.” (Plaintiffs’ Ex. 5).
III.

LEGAL ANALYSIS1 AND CONCLUSIONS OF LAW
The Federal Tort Claims Act (“FTCA”)2 contains a limited waiver of sovereign immunity

of the United States in tort matters, making the United States liable “in the same manner and to
the same extent as a private individual under like circumstances.” 28 U.S.C. § 2674. The FTCA
provides for money damages for negligence of employees of the United States, acting within the
scope of their employment, “under circumstances where the United States, if a private person,
would be liable to the claimant in accordance with the law of the place where the act or omission
occurred.” 28 U.S.C. § 1346(b); Miller v. United States, 308 F. Supp. 2d 604, 607 (D. Md.
2003). Because the medical treatment at issue in this case occurred in Maryland, Maryland law
1

In its pretrial memorandum, defendant included a summary of controlling law. (ECF No. 41 at 2–5). Plaintiffs
had no objection to this summary, so the Court will adopt it in full.
2
The parties have stipulated to the fact that the Federal Tort Claims Act governs the instant action because Carissa
Guishard-Gibson, M.D. is deemed a federal employee pursuant to the Federally Supported Health Centers
Assistance Act (“FSHCAA”) and was acting within the scope of her employment during the care provided to Ms.
Kelly on August 18, 2014. (Joint Pretrial Order ¶ 6).

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regarding the substantive elements of medical negligence applies. Goodie v. United States, No.
RDB-10-3478, 2013 WL 968198, at *4 (D. Md. March 12, 2013) (citing Miller, 308 F. Supp. 2d
at 607).
In this medical malpractice action, plaintiffs must show by a preponderance of the
evidence (1) the applicable standard of care, (2) that this standard has been violated, and (3) a
causal relationship between the violation and the harm complained of.

See Fitzgerald v.

Manning, 679 F.2d 341, 346 (4th Cir. 1982). The plaintiffs bear the burden of proof on each
element. Weimer v. Hetrick, 525 A.2d 643, 651 (Md. 1987) (citing Shilkret v. Annapolis
Emergency Hosp. Ass’n, 349 A.2d 245, 247 (Md. 1975); Paige v. Manuzak, 471 A.2d 758, 76667 (Md. Ct. Spec. App. 1984)).
A.

Standard of Care and Breach

Maryland law presumes that “the doctor has performed [her] medical duties with the
requisite care and skill.”

Riley v. United States, 248 F. Supp. 95, 97 (D. Md. 1965) (quoting

Lane v. Calvert, 138 A.2d 902, 905 (Md. 1958)).

The standard of care for healthcare

providers in Maryland requires providers to “exercise the degree of care or skill expected of
a reasonably competent health care provider in the same or similar circumstances.” Crise v. Md.
Gen. Hosp., 69 A.3d 536, 553 (Md. Ct. Spec. App. 2013) (citing Shilkret, 349 A.2d at 253).
Maryland law does not require a doctor to provide optimal care; rather, “the law only requires that
the care be reasonably competent and be acceptable to other members of the medical profession.”
Kroll v. United States, 708 F. Supp. 117, 118 (D. Md. 1989). Maryland law requires plaintiffs to
prove a breach in the standard of care (and causation) by expert testimony to a reasonable degree
of probability. Jacobs v. Flynn, 749 A.2d 174, 180 (Md. Ct. Spec. App. 2000). The “mere fact

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that an unsuccessful result follows medical treatment is not of itself evidence of negligence.”
Kennelly v. Burgess, 654 A.2d 1335, 1340 (Md. 1995) (quoting Lane, 138 A.2d at 905).
Plaintiffs offered the testimony of Marc Itskowitz, M.D., an expert in the field of internal
medicine and the diagnosis and treatment of pulmonary embolism. Dr. Itskowitz testified that
Ms. Kelly was at risk for pulmonary embolism due to her age and obesity, that she showed five
symptoms of pulmonary embolism (SOB, pleuritic chest pain, cough, wheezing, and
palpitations), and that three of her vital signs were borderline (pulse, oxygenation, and
respiration). Therefore, pulmonary embolism needed to be, according to Dr. Itskowitz, on Dr.
Guishard-Gibson’s differential diagnosis for Ms. Kelly.3 Dr. Itskowitz testified that pulmonary
embolism is a life-threatening condition, and that when there is a life-threatening condition on a
differential diagnosis, a physician must rule out that life-threatening condition as a possible
diagnosis. Dr. Itskowitz testified that the standard of care for Ms. Kelly required Dr. GuishardGibson to send Ms. Kelly to the emergency room so that Ms. Kelly could be emergently
evaluated, diagnosed, and treated for pulmonary embolism. In his opinion, Dr. Guishard-Gibson
breached this standard of care by failing to send Ms. Kelly to the emergency room directly
following her appointment.
Dr. Itskowitz also testified that the Wells’ Criteria, which Dr. Guishard-Gibson testified
that she used in evaluating Ms. Kelly,4 are seven clinical criteria that are used to help determine
if a patient is at risk of a blood clot and should only be used in conjunction with another test. He
testified that, in the last twenty years, the Wells’ Criteria have been found not to be sufficiently
sensitive for clinical use and that the diagnostic failure rate is high. Dr. Itskowitz opined that it
was not sufficient for Dr. Guishard-Gibson to rely solely on the Wells’ Criteria to rule out
3

Although Dr. Guishard-Gibson testified that pulmonary embolism was in her differential diagnosis for Ms. Kelly,
there is no mention of pulmonary embolism in any of the records from BEHFC.
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There is no mention of the Wells’ Criteria in the BEHFC medical records.

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pulmonary embolism as a possible diagnosis under the standard of care in this case, when there
were clear risk factors, signs, and symptoms of pulmonary embolism. At a minimum, he
testified, Dr. Guishard-Gibson was required to order a D-dimer test,5 and preferably, a CT scan,
to eliminate pulmonary embolism as a possible diagnosis. In his opinion, Dr. Guishard-Gibson
breached the standard of care by using only the Wells’ Criteria in this case.
The Government presented the testimony of Michael Hattwick, M.D., an expert in the
field of internal medicine, to counter Dr. Itskowitz’ opinion. Dr. Hattwick testified that the
standard of care requires (1) taking a history, (2) doing an appropriate physical examination
based on the history, (3) doing tests, if any are indicated based on the history and physical
examination, (4) using clinical judgment to reach a tentative diagnosis, and (5) initiating
treatment. Dr. Hattwick noted that, here, Dr. Guishard-Gibson took a history, conducted a
physical examination, specifically, listened to Ms. Kelly’s lungs, did testing (vitals and
oxygenation), reached a tentative diagnosis of SOB, and initiated treatment by ordering
additional testing (a chest x-ray) and prescribing bronchodilators and a cough suppressant.
Dr. Hattwick also opined that it was reasonable for Dr. Guishard-Gibson to order
additional tests and follow up with Ms. Kelly on an outpatient basis based on Ms. Kelly’s normal
vital signs and physical examination. He testified that the standard of care only requires a patient
to be sent to the emergency room if there is testing that needs to be done that cannot be done in
the office. According to Dr. Hattwick, the Wells’ Criteria are used to help determine whether
such additional testing is needed. Dr. Hattwick also testified that it was appropriate for Dr.
Guishard-Gibson to use the Wells’ Criteria when using her clinical judgment to reach a tentative
diagnosis of shortness of breath, to be reevaluated once she received Ms. Kelly’s chest x-ray. He

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Dr. Itskowitz testified that a D-dimer test is a blood test used to rule out the possibility of pulmonary embolism, if
negative. If positive, a CT scan is necessary to diagnose pulmonary embolism.

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opined that Ms. Kelly would score zero on the Wells’ Criteria, which would rule out the need for
additional testing for pulmonary embolism. Accordingly, it was reasonable, in his opinion, for
Dr. Guishard-Gibson to treat the more likely diagnoses, which were bronchitis and pneumonia,
and revisit her diagnosis after additional testing.
In weighing the expert testimony in this case, I have considered the training,
qualifications, and practical experience of the experts, as well as the nature and substance of the
testimony offered. Based upon those considerations, I conclude that Dr. Itskowitz’ opinion
regarding the breach of the standard of care is persuasive and should be given significant weight.
He is board certified in internal medicine and treats patients with, or suspected of having,
pulmonary embolism at an outpatient practice similar to BEFHC. He testified about his own
practice and experience in diagnosing, treating, and following up on patients with suspected and
diagnosed pulmonary embolism. He also identified a clear standard of care that applied in this
case based on the specific facts and patient characteristics. Dr. Hattwick, while qualified as an
expert in internal medicine, merely stated a general standard that would apply in any interaction
between a physician and patient and that would only result in a breach if a physician were to
neglect a significant duty, such as failing to take a patient history or failing to conduct a physical
examination. Dr. Hattwick also testified that, although he thought it was appropriate for Dr.
Guishard-Gibson to use the Wells’ Criteria, he does not use the Wells’ Criteria in his own
practice.
Dr. Itskowitz noted that Ms. Kelly presented with risk factors, symptoms, and signs of
pulmonary embolism. He opined that pulmonary embolism needed to be on Dr. GuishardGibson’s differential diagnosis based on these factors, symptoms, and signs, and acknowledged
that Dr. Guishard-Gibson had testified that it was on her differential diagnosis. Given that

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pulmonary embolism was the only life-threatening condition on Dr. Guishard-Gibson’s
differential diagnosis, Dr. Itskowitz concluded that it needed to be definitively ruled out by
appropriate testing and not merely by reliance on the Wells’ Criteria.

He noted that Dr.

Guishard-Gibson did not have the resources to rule out pulmonary embolism at her facility, and
therefore needed to send Ms. Kelly to a hospital. Further, as Dr. Itskowitz testified, it was not
reasonable for Dr. Guishard-Gibson to merely diagnose Ms. Kelly with shortness of breath, the
same complaint that she presented with.6
For the reasons noted above, and in reliance upon the opinion of Dr. Itskowitz, I conclude
that plaintiffs have established by a preponderance of the evidence that Dr. Guishard-Gibson did
not “exercise the degree of care or skill expected of a reasonably competent health care
provider in the same or similar circumstances.”

Crise v. Md. Gen. Hosp., 69 A.3d 536, 553

(Md. Ct. Spec. App. 2013) (citing Shilkret v. Annapolis Emergency Hosp. Ass’n, 349 A.2d
245, 253 (Md. 1975)).

I find that plaintiffs have established to a reasonable degree of

probability, Jacobs v. Flynn, 749 A.2d 174, 180 (Md. Ct. Spec. App. 2000), that Dr. GuishardGibson breached the standard of care by failing to rule out pulmonary embolism as a possible
diagnosis by sending Ms. Kelly to a hospital for appropriate testing immediately following her
appointment.
B.

Causation

In Maryland, there is no recovery for loss of chance; it is insufficient for a plaintiff to
prove that a patient lost a substantial, though less than probable, chance of survival. See Fennell

BEHFC records list shortness of breath under the section “Assessment/Plan.” While Dr. Guishard-Gibson noted
that Ms. Kelly didn’t “appear sick though [sic] as if having pneumonia or URI,” she did not make any further
diagnoses, but merely ordered a chest x-ray and prescribed bronchodilators and a cough suppressant. Dr. Itskowitz
noted that, even if shortness of breath was merely a provisional diagnosis that would be updated after receiving the
results of Ms. Kelly’s chest x-ray, it was not reasonable for Dr. Guishard-Gibson to wait for the results, as it was
critical that Ms. Kelly be emergently evaluated for pulmonary embolism.
6

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v. S. Md. Hosp. Ctr., 580 A.2d 206, 215 (Md. 1990) (declining to recognize damages for loss of
chance in survival actions); Weimer v. Hetrick, 525 A.2d 643, 652 (Md. 1987) (declining to
recognize damages for loss of chance in wrongful death actions). Instead, plaintiffs must show
that the alleged departure from the standard of care was a cause in fact of their injury. See
Maryland Civil Pattern Jury Instruction 19:10; see also Lane v. Calvert, 138 A.2d 902, 905 (Md.
1958). Causation in fact concerns the threshold question of “whether defendant’s conduct
actually produced an injury.” Pittway Corp. v. Collins, 973 A.2d 771, 786–88 (Md. 2009)
(quoting Peterson v. Underwood, 264 A.2d 851, 855 (Md. 1970)); see also Jacobs v. Flynn, 749
A.2d 174, 180 (Md. Ct. Spec. App. 2000) (“As with other cases, in order to prove causation, a
medical malpractice plaintiff must establish that but for the negligence of the defendant, the
injury would not have occurred.”). Stated differently, a plaintiff must show that it is more likely
than not that the defendant’s conduct was a substantial factor in producing the plaintiff’s harm.
See Reed v. Campagnolo, 630 A.2d 1145, 1152 (Md. 1993); Eagle-Picher Indus., Inc. v. Balbos,
604 A.2d 445, 459 (Md. 1992). Negligent conduct is not a substantial factor if the harm would
have been sustained in the absence of the original negligence. Collins v. Li, 933 A.2d 528, 552
(Md. Ct. Spec. App. 2007), aff’d sub nom Pittway Corp. v. Collins, 973 A.2d 771 (Md. 2009)
(citing Restatement (Second) of Torts § 432 (Am. Law Inst. 1965)).
Plaintiffs’ expert, Dr. Itskowitz, testified that, had Ms. Kelly been sent to the emergency
room immediately following her appointment with Dr. Guishard-Gibson, she would have
survived. He testified that Ms. Kelly’s office visit concluded around 4:00 to 4:15 p.m., that she
would arrive at the hospital within approximately fifteen minutes, and that she would then be
rapidly treated. He stated that he would, and routinely does, call ahead to the emergency room to
inform the doctors that he was sending over a patient with risk factors and symptoms of

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pulmonary embolism. Upon her arrival, she would be assessed by a nurse in triage and a doctor
would conduct a physical examination and review her history. Next, the doctor would order
diagnostic testing, i.e., a D-dimer test, metabolic panel, blood count, and echocardiogram. Dr.
Itskowitz testified that, then, if the D-dimer test was positive, the physician would order a CT
scan to confirm a diagnosis of pulmonary embolism. He further testified that the standard of
care in the emergency room is to start anticoagulation medicine (heparin) pending results of the
CT scan unless the results are available within fifteen minutes. Dr. Itskowitz opined that if Ms.
Kelly were placed on heparin, she would not have suffered a severe pulmonary embolism. He
testified that heparin prevents new blood clots from forming and that it is extremely rare for a
patient to develop a clot and suffer a severe pulmonary embolism once on anticoagulation
medicine. Accordingly, Dr. Itskowitz testified that, had Ms. Kelly been sent to the emergency
room immediately following her BEHFC appointment, Ms. Kelly would have received heparin
by 5:30 p.m.7 and would not suffered a severe pulmonary embolism.
Dr. Itskowitz also opined that, even if Ms. Kelly did experience an acute pulmonary
embolism while in the hospital, she would have survived. Dr. Itskowitz testified that patients
with severe pulmonary embolism typically die because of strain to the right side of the heart. He
stated that, if Ms. Kelly had been in the emergency room when she experienced the pulmonary
embolism, the physicians could have supported her heart by treatment, including administration
of heparin and tPA,8 and saved her life. Based on his testimony, plaintiffs set forth two theories
regarding causation. First, Ms. Kelly would not have had a pulmonary embolism if she had been
sent to the hospital, as she would have been administered heparin upon arrival. Second, even if

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The experts do not dispute that Ms. Kelly experienced a pulmonary embolism while at Walmart, at approximately
5:30 p.m.
8
Dr. Britt testified that tPA is used to break down existing blood clots.

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she did have a pulmonary embolism, she would have survived if she had the pulmonary
embolism in the hospital instead of at Walmart.
The Government offered the testimony of Dr. E. James Britt, an expert in the fields of
internal medicine, pulmonology medicine, and critical care medicine, regarding the proximate
cause of Ms. Kelly’s death. Dr. Britt testified based on his training, education, and experience,
and to a reasonable degree of medical certainty, that the outcome would have been the same if
Ms. Kelly went immediately to the hospital following her appointment with Dr. GuishardGibson. Dr. Britt noted that Ms. Kelly had normal vital signs and was stable when she left
BEFHC between 4:00 and 4:15 p.m. He testified that if Ms. Kelly arrived at the emergency
room in this stable state, she would be admitted as a diagnostic case, rather than an emergency
room patient. According to Dr. Britt, it is more likely than not that the doctors at the hospital
would have ordered a D-dimer test based upon a suspicion of pulmonary embolism. If the Ddimer test was positive, the doctors would order a creatinine test to ensure Ms. Kelly had normal
kidney function, then perform a CT scan to confirm a diagnosis of pulmonary embolism. Dr.
Britt testified that this entire process would take approximately two hours.
Dr. Britt testified that Ms. Kelly would not have been prescribed heparin, an
anticoagulant, before pulmonary embolism was her confirmed diagnosis. He testified that most
patients entering with a suspicion of pulmonary embolism are not immediately prescribed
heparin, but that, instead, doctors first attempt to obtain a diagnosis to prevent exposing patients
to the risk of anticoagulation medicine. He testified that, more likely than not, Ms. Kelly would
have only been prescribed heparin once the results of the D-dimer and CT scan confirmed the
doctors’ suspicions of pulmonary embolism, which would occur approximately two hours after
her admission. Thus, according to Dr. Britt, even if Ms. Kelly went directly to the emergency

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room from BEHFC, it is more likely than not that Ms. Kelly would have experienced the
pulmonary embolism, which occurred at approximately 5:30 p.m., before any heparin was
administered.
Additionally, Dr. Britt testified that it is speculative to conclude that Ms. Kelly would not
have suffered a pulmonary embolism even if she had been administered heparin upon arrival to
the hospital, as Dr. Itskowitz opined would happen. Dr. Britt testified that heparin would only
prevent future clots from forming and would not dissolve existing clots. Dr. Britt testified that
only tPA breaks up existing clots and that Ms. Kelly would not have been given tPA until
pulmonary embolism was her confirmed diagnosis, due to the risk of hemorrhaging associated
with tPA. Accordingly, Dr. Britt testified that, even if Ms. Kelly was given heparin, it is possible
that Ms. Kelly would have still experienced a pulmonary embolism due to a pre-formed clot. Dr.
Britt further opined that Ms. Kelly’s survival aspects would have been the same if she
experienced the pulmonary embolism while at the hospital. He testified that Ms. Kelly was
given all available treatments upon her arrival to the hospital, but that when acute events such as
a severe pulmonary embolism occur, mortality occurs. Accordingly, Dr. Britt opined, to a
reasonable degree of medical certainty, that it is more likely than not that Ms. Kelly would not
have survived even if she was in the hospital when she experienced the pulmonary embolism.
After weighing the expert testimony, considering the experts’ practical experience,
training, and expertise, and evaluating the opinions offered, I conclude that Dr. Britt’s opinion
regarding causation is more persuasive and should be given significant weight for the reasons
noted below. First, Dr. Britt’s experience and expertise in this area of medical practice is
extensive. Dr. Britt has worked in pulmonary medicine at the University of Maryland for
twenty-eight years and is experienced in internal, pulmonary, and critical care medicine. He

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testified that he primarily practices in an outpatient clinic, but that he also spends two weeks out
of every month in the hospital, working in the ICU and emergency room. He also testified that
he sees fifteen or sixteen patients diagnosed with pulmonary embolism per year, that he had
prescribed heparin to a patient within the last month, and that he had prescribed tPA to a patient
in the last year.

Dr. Itskowitz, on the other hand, specializes in internal medicine and treats

patients on an outpatient basis at a practice similar to BEHFC. While he follows up on the
patients that he has referred to the hospital, he does not regularly treat patients in the emergency
room as Dr. Britt does. Indeed, Dr. Itskowitz testified that the last time that he prescribed tPA
was during his residency. Thus, based on Dr. Britt’s relevant experience, I give his testimony
significant weight.
Second, I find Dr. Britt’s testimony more persuasive because it was clear, concise, and
consistent with the evidence while Dr. Itskowitz’ testimony concerning the timing of events at
the hospital was speculative and not consistent with the evidence. Dr. Itskowitz first opined that
Ms. Kelly would not have suffered a pulmonary embolism had she been sent to the emergency
room from BEHFC because she would have received heparin before 5:30 p.m. and that the
pulmonary embolism would not have occurred.

That conclusion is not supported by the

sequence of events in this case and is inconsistent with the rest of Dr. Itskowitz’ testimony. Ms.
Kelly left BEHFC between 4:00 and 4:15 p.m., so she would have likely arrived at the hospital
between 4:15 and 4:30 p.m. Dr. Itskowitz testified that Ms. Kelly would then be assessed by a
nurse in triage and, thereafter, a doctor would perform a physical examination. The doctor
would then order diagnostic tests, including a D-dimer test, metabolic panel, blood count, and
echocardiogram.

Although Dr. Itskowitz testified at trial that all of these steps could be

completed in fifteen minutes, he testified at his deposition that this process could take up to thirty

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to sixty minutes. Accordingly, these tests would be completed anywhere between 4:30 p.m. and
5:30 p.m. Dr. Itskowitz testified that, then, if the D-dimer test was positive, the physician would
order a CT scan. On cross-examination, he testified that it would take up to an hour to receive
these results, so the results would be available anywhere between 5:30 p.m. and 6:30 p.m.
Similarly, Dr. Britt testified that it would take two hours to complete all diagnostic testing.
While Dr. Itskowitz testified at trial that the standard of care is to begin heparin pending the
results of the CT exam, Dr. Britt testified that heparin would not be administered until the results
were received due to the risks associated with administering heparin. Based on his experience
treating patients like Ms. Kelly in the emergency room, I find Dr. Britt’s opinion that heparin
would not be administered until the results of the CT exam were received to be persuasive. Both
Dr. Itskowitz and Dr. Britt’s testimony supports the conclusion that the CT exam results would
not be received until after 5:30 p.m., which the experts do not dispute is the approximate time
that she suffered an acute pulmonary embolism.

Accordingly, I find that Dr. Itskowitz’

testimony that Ms. Kelly would not have suffered a pulmonary embolism if she had been sent to
the emergency room immediately after leaving BEHFC is not entitled to significant weight.
Dr. Itskowitz also testified that, alternatively, if Ms. Kelly did experience a pulmonary
embolism while in the hospital, she would have survived, but this testimony is inconsistent with
the facts of what actually happened upon Ms. Kelly’s admission to the emergency room. Dr.
Itskowitz testified that, if Ms. Kelly had experienced the pulmonary embolism in the hospital,
she would have survived because the physicians would have been able to support her heart and
treat her immediately with heparin or tPA. Yet, here, Ms. Kelly did not immediately receive
heparin or tPA. Instead, the emergency room physicians ordered tests to confirm the diagnosis,
to include a chest x-ray, echocardiogram, CT scan, and blood tests. Ms. Kelly was in the

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emergency room for approximately one and one-half hours, still undergoing diagnostic testing,
when she went into cardiac arrest. Further, Dr. Britt testified that, had Ms. Kelly been in the
hospital when she experienced the pulmonary embolism, she would have been treated in the
same fashion that she was upon her admission to the hospital. I find that Dr. Britt’s testimony is
credible, as it is supported by on his experience treating patients like Ms. Kelly in the emergency
room.

Accordingly, Dr. Itskowitz’ testimony that Ms. Kelly would have survived if she

experienced the pulmonary embolism in the hospital is not supported by Ms. Kelly’s course of
treatment upon her admission to the emergency room and is not entitled to significant weight.
For the reasons stated above, and in reliance on Dr. Britt’s opinion, I find that plaintiffs
have failed to establish by a preponderance of the evidence a causal relationship between the
breach of the standard of care and the harm complained of. See Pittway Corp. v. Collins, 973
A.2d 771, 786–88 (Md. 2009) (quoting Peterson v. Underwood, 264 A.2d 851, 855 (Md. 1970));
see also Jacobs v. Flynn, 749 A.2d 174, 180 (Md. Ct. Spec. App. 2000). Specifically, plaintiffs
have not met their burden of establishing that Dr. Guishard-Gibson’s departure from the standard
of care was a “cause in fact” of Ms. Kelly’s death. See Maryland Civil Pattern Jury Instruction
19:10; see also Lane v. Calvert, 138 A.2d 902, 905 (Md. 1958). Plaintiffs have not shown that
Dr. Guishard-Gibson’s negligent conduct was a substantial factor in causing Ms. Kelly’s death,
as plaintiffs have failed to establish by a preponderance of the evidence that Ms. Kelly’s death
would not have occurred in the absence of Dr. Guishard-Gibson’s original negligence. Collins v.
Li, 933 A.2d 528, 552 (Md. Ct. Spec. App. 2007), aff’d sub nom Pittway Corp. v. Collins, 973
A.2d 771 (Md. 2009) (citing Restatement (Second) of Torts § 432 (Am. Law Inst. 1965)).
Accordingly, plaintiffs have failed to meet their burden of proving their claim of negligence.

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IV.

CONCLUSION
For the reasons set forth above, I conclude that plaintiffs have failed to establish their

claim for negligence. A separate order will be issued entering judgment on behalf of the
Government and directing the Clerk to close the case.

December 17

, 2018

/s/
Beth P. Gesner
Chief United States Magistrate Judge

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