Bederson v. United States, Civil Action No. 09–688 (BAH).

Citation935 F.Supp.2d 48
Decision Date27 March 2013
Docket NumberCivil Action No. 09–688 (BAH).
PartiesPaul BEDERSON, as personal representative of the Estate of Robert B. Bederson, Plaintiff, v. UNITED STATES of America, Defendant.
CourtUnited States District Courts. United States District Court (Columbia)

935 F.Supp.2d 48

Paul BEDERSON, as personal representative of the Estate of Robert B. Bederson, Plaintiff,
UNITED STATES of America, Defendant.

Civil Action No. 09–688 (BAH).

United States District Court,
District of Columbia.

March 27, 2013.

[935 F.Supp.2d 50]

L. Palmer Foret, Ashcraft & Gerel, LLP, Rockville, MD, for Plaintiff.

Christian Alexander Natiello, Oliver W. McDaniel, Wyneva Johnson, Laura R. Ponto, U.S. Attorney's Office, Rhonda Lisa Campbell, U.S. Department of Justice, Washington, DC, for Defendant.


BERYL A. HOWELL, District Judge.

The plaintiff Paul Bederson, who is the son and personal representative of the estate of Robert Bederson, now deceased, brought this medical malpractice action against the United States (“government defendant”), pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b) and 2671, et seq., and a private physician, for damages allegedly sustained from negligent medical treatment received by Robert Bederson in June, 2007. Pending before the Court is the plaintiff's claim that the defendant United States was negligent because a treating physician at the Department of Veterans Affairs Medical Center (“VA”) in Washington, D.C. failed to advise Robert Bederson in a reasonable period of time that he suffered from significant anemia and failed to provide clear follow-up instructions.

During a week-long bench trial, the Court heard evidence on the plaintiff's claim against the government defendant concurrently with a jury trial on the negligence claim against the private physician. The jury returned a verdict in favor of the private physician, finding that the plaintiff had not proven by a preponderance of the evidence that the private physician defendant had violated the standard of care in his treatment of Robert Bederson. Likewise, for the reasons explained below, the Court concludes that the plaintiff has failed to sustain his burden of proof on the instant negligence claim and that judgment must be entered for the government defendant.1

[935 F.Supp.2d 51]


On April 13, 2009, Robert Bederson initiated this medical malpractice lawsuit by filing a two-count complaint against the United States and a VA physician, Dr. Melissa Turner, and Dr. Ajay Bakshi, a private physician practicing in Maryland. Count I alleges that Dr. Turner was negligent in failing to advise Robert Bederson in a reasonably timely manner about the results of a blood test, which showed that he had developed significant anemia. Compl., ECF No. 1, ¶¶ 11, 17. Count II alleges that Dr. Bakshi was negligent in performing an outpatient procedure involving “an esophagogastroduodenoscopy with biopsy, and a balloon dilatation of a distal esophageal stricture [“endoscopy” or “EGD”]” on June 14, 2007, without advising Robert Bederson to discontinue use of a blood thinner medication. Id. ¶¶ 13 –14, 21.

Following Robert Bederson's death on May 1, 2010, due to causes unrelated to this lawsuit, the operative Amended Complaint was filed on July 29, 2010, substituting Robert Bederson's son, Paul Bederson,2 as the personal representative of his father's estate, to continue the case as a Survival Action. See Consent Mot. For Leave to File Am. Compl., ECF No. 22; Am. Compl., ECF No. 23. The Court subsequently dismissed Dr. Turner as a defendant from the action on grounds that, under the Westfall Act, 28 U.S.C. § 2679, a federal employee is immune from tort liability when “acting within the scope of his [or her] office or employment at the time of the incident out of which the claim arose.” 28 U.S.C. § 2679(d); see also United States v. Smith, 499 U.S. 160, 163, 111 S.Ct. 1180, 113 L.Ed.2d 134 (1991) (“an FTCA action against the Government [is] the exclusive remedy for torts committed by Government employees in the scope of their employment”); Minute Order, dated February 28, 2011.3

The bench trial on Count I and a jury trial on Count II commenced on September 19, 2012. The jury portion of the trial concluded on September 24, 2012, when, as noted, the jury returned a verdict in favor of Dr. Bakshi. See Verdict Form, ECF No. 99 (Answering “NO” to question “Did the Plaintiff prove by a preponderance of the evidence that Defendant Dr. Bakshi violated the standard of care in his treatment of Mr. Robert Bederson?”).4 After

[935 F.Supp.2d 52]

return of the jury verdict, additional evidence was submitted on the issues raised by the negligence claim against the government defendant and the bench trial concluded on September 25, 2012.5See Minute Entry, dated September 25, 2012. The following seven witnesses were called by the plaintiff to testify: Paul Bederson, Robin Vines, Victa Nemlin, Joseph Gordon Marc Claude, Edwin Jackson, and two medical expert witnesses, Todd D. Eisner, M.D. and Alan David, M.D. The government defendant called the following eight witnesses to testify: Barbara D. Chalom, Kathleen Bixby, Andree Turner–Kelly, Melissa Turner, M.D., Ajay Bakshi, M.D., Sharon Matsui,6 and two medical expert witnesses, Peter Manu, M.D. and Jon Resar, M.D. Dr. Bakshi testified on his own behalf and also called two medical expert witnesses, Arnold Levy, M.D. and Bruce Abell, M.D. Although Dr. Bakshi's witnesses were called in his own defense, this evidence is relevant to consideration of the negligence claim against the government defendant and, in fact, Dr. Bakshi's witnesses were subject to cross-examination by the government defendant. See, e.g., Tr. ECF No. 110, at 87–89 (government cross-examination of Dr. Levy); Tr. ECF No. 111, at 51–65, 103–06 (government cross-examination of Dr. Abell).

Following the conclusion of the bench trial, the parties jointly submitted proposed findings of fact and conclusions of law. See Joint Proposed Findings of Fact and Conclusions of Law (“Findings & Conclusions”), October 22, 2012, ECF No. 106; Amended/Corrected Joint Proposed Findings of Fact and Conclusions of Law, October 25, 2012, ECF No. 107. The Court has considered these submissions along with the testimony and exhibits at trial.7

Based upon the testimony presented and exhibits admitted at the trial, the Court makes the findings of fact set forth below and further states its conclusions of law. SeeFed.R.Civ.P. 52(a)(1) (“In an action tried on the facts without a jury ..., the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.”).

[935 F.Supp.2d 53]

II. FINDINGS OF FACTA. Overview of Witnesses and Their Backgrounds

1. Plaintiff's Witnesses

As noted, the plaintiff presented the testimony of the following seven witnesses:

a) Plaintiff Paul Bederson

The plaintiff testified about changes in his father's physical and mental condition after June 17, 2007, when his father suffered a heart attack, allegedly as a result of the negligence claimed in this case. He also testified about his knowledge of his father's medical conditions, the interactions that the plaintiff had with his father's treating physicians, and the damages stemming from the alleged negligence. Tr. ECF No. 108 at 97–119; Tr. ECF No. 116 at 50–56, 72–85, 102–07, 122–29.

b) Robin Vines

Ms. Vines was a housekeeper for Robert Bederson for about seven months prior to June 17, 2007, working from 9–to–5, five to seven days per week, providing meals, cleaning, driving to medical appointments, and assisting with other tasks. Tr. ECF No. 108 at 34–35. She testified about her observations of Mr. Bederson during the period of her employment, including that he was able to get up out of bed and take care of his own toileting needs without any assistance, shower, put on his own clothes, play with his dog, and walk using a cane or a walker. Id. at 36–37 (“he could lift up himself and grab the walker and walk”). She also testified about Mr. Bederson's medical emergency on June 17, 2007. Id. at 45–47.

c) Victa Nemlin

Ms. Nemlin is a certified nursing assistant employed by Medicaid Providers, a home healthcare agency. She worked with Mr. Bederson from August, 2008 until his death in 2010, for seven hours each day, five days per week. Tr. ECF No. 108 at 84, 91 (Nemlin). When Ms. Nemlin was not there, another nursing assistant, Rose Adolfo, would relieve her. Tr. ECF No. 108 at 84–85 (Nemlin); id. at 107 (Plaintiff). During the time she worked with Mr. Bederson, he was wheelchair bound, id. at 85–86, and required assistance with preparing meals, getting dressed, bathing, and toiletry needs, including “chang[ing] his diaper, wip[ing] him down,” id. at 86–89 (she “would pick out his clothes and put my gloves on, go to the bathroom, get the water ready and the container, bring it to the room and change the diapers, take off his pants, his socks, change the diaper. I would ask him to roll over, and although he couldn't, he would try as much as he could to help me by lifting up a little, and then I would switch him over, put his diaper on, get his pants on, get him to the chair and then work on the top portion.”).

d) Joseph Gordon Marc Claude

Mr. Claude is the building engineer at the apartment complex where Robert Bederson lived. Id. at 63–64. Mr. Claude testified that, in the time-frame when Mr. Bederson kept a pet dog, Pepé, which was before June 17, 2007, Mr. Bederson “was able to do anything that you and I could do for the most part” such as attending organized social events and accompanying friends out to lunch, and he walked “sometimes” with a cane. Id. at 64–69; see also id. at 104 (Plaintiff) (Robert Bederson got a new dog named Pepé about two years prior to June 2007). After June 17, 2007, Mr. Claude described Mr. Bederson as being “more confined to—whether he'd be sitting in a chair or laying in his bed, he was more confined to that. He wasn't up and about like he was before.” Id. at 69.

e) Edwin

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