Neal v. United States
| Decision Date | 23 January 2023 |
| Docket Number | Civil Action MJM 19-1033 |
| Parties | TIFFANY NEAL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant. |
| Court | U.S. District Court — District of Maryland |
TIFFANY NEAL, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant.
Civil Action No. MJM 19-1033
United States District Court, D. Maryland
January 23, 2023
MEMORANDUM OF DECISION
Matthew J. Maddox United States Magistrate Judge
Plaintiff Tiffany Neal filed this civil action against the United States of America (“Defendant”) under the Federal Tort Claims Act, 18 U.S.C. §§ 2671, et seq., for claims arising from an outpatient visit to a medical facility operated by the United States Department of Veterans Affairs (“VA”) in August 2017 and subsequent contacts with a VA employee. The claims remaining in this suit are professional negligence/vicarious liability, negligent supervision, and negligent breach of implied contract in Count 1 of the Complaint and intrusion upon seclusion in Count 2. ECF 1; ECF 71. Specifically, Ms. Neal, a female VA patient, alleges that a male electrocardiogram (“EKG”) technician, without permission, walked in on her medical examination while she was partially disrobed and subsequently contacted her by phone. Ms. Neal claims that the tortious conduct of VA and the VA employee resulted in various emotional and psychological injuries for which she seeks an award of non-economic compensatory damages.[1]
The parties appeared before the Court for a bench trial. Pursuant to Rule 52(a) of the Federal Rules of Civil Procedure, this memorandum sets forth the Court's findings of fact and conclusions of law based upon the evidence and testimony presented at trial.
I. FINDINGS OF FACT
A. Background
1. Plaintiff Tiffany Neal is a female disabled military veteran who served actively from September 1999 through August 2004, when she was honorably discharged. Testimony of Tiffany Neal, December 1, 2022.
2. At all times relevant to this action, Ms. Neal received medical services and treatment at the Baltimore Veterans Affairs Medical Center (“BVAMC”), a medical facility operated by VA in Maryland to provide medical care to veterans as part of the VA Maryland Health Care System (“VAMHCS”). Neal Test., Dec. 1, 2022.
B. Relevant BVAMC Policies
3. BVAMC trained its employees on an annual basis on topics related to patient care. Testimony of Dr. Sandra Marshall, November 28, 2022; Testimony of Dr. Marc Hochberg, November 28, 2022; Testimony of Dr. Shawn Robinson, November 30, 2022.
4. VAMHCS and BVAMC maintained a code of conduct policy for their employees that was operative at all times relevant to this action. Plaintiff's Exhibit 13; Defendant's Exhibit 2. The policy outlined responsibilities of VAMHCS employees related to “ethical conduct, relationships between Staff and Veterans, disruptive behavior, and inappropriate conduct.” Id. at USA-00006.
5. The code of conduct policy included a non-exhaustive list of appropriate employee behaviors such as treating people with respect and dignity, respecting veteran rights,
acting politely and professionally while on duty, respecting others' right to privacy, de-escalating volatile situations, safeguarding confidential and private information, and promptly reporting errors, mistakes, and violations of VA policies. Pl. Exh. 13; Def. Exh. 2.
6. The code of conduct policy included a non-exhaustive list of prohibited disruptive behaviors, such as use of rude or disrespectful conduct or language, bullying or demeaning behavior, unwanted touching, sexual harassment, engaging in sexual activity while on duty, assaulting behavior, and accessing medical records without authorization. Pl. Exh. 13.
7. VAMHCS and BVAMC had a “zero-tolerance” policy prohibiting patient abuse. Pl. Exh. 13; Def. Exh. 2. The policy defined “patient abuse” as “mistreatment or coercion of a Veteran or beneficiary during a hospital admission or during the delivery of outpatient care.” Id. at USA-00008. Patient abuse included but was not limited to “acts of physical, psychological, verbal, sexual, emotional or financial nature by any employee (e.g., physical striking of a patient; threatening or intimidating behavior; crossing professional boundaries; insulting remarks toward or about a Veteran; abandonment; neglect; stealing from or taking financial or personal advantage of a Veteran).” Id. “Crossing professional boundaries” referred to “Professional Therapeutic Boundaries,” which are described in the policy as limits on the personal relationship between a provider and client that “protect the space between the provider's power and the client's vulnerability.” Id., VAMHCS Policy Memorandum 512-00/PS-009, Attachment A. Abandonment and neglect of a patient referred to abandonment or neglect of a patient by an employee with responsibility for providing care to the patient. Hochberg Test. Nov. 28, 2022.
8. BVAMC policies required any employee who witnessed patient abuse to report it to their supervisor. Pl. Exh. 13; Def. Exh. 2.
9. Upon becoming aware of allegations of patient abuse, the supervisor was required, “[a]t a minimum,” to “assign the alleged abuser to duties that do not involve the delivery of patient care to the alleged victim” and to “instruct the alleged abuser to avoid all contact with the alleged victim.” Pl. Exh. 13, VAMHCS Policy Memorandum 512-00/PS-009 at 2; Def. Exh. 2.
10. The code of conduct policy provided notice of BVAMC's progressive discipline practice, which aimed to correct employee conduct. The policy provided that “discipline or adverse action imposed will become more severe after each instance of substantiated misconduct.” Pl. Exh. 13 at USA-00011; Def. Exh. 2.
11. The progressive discipline practice began with recommendations for a change in behavior and admonishments. Under BVAMC disciplinary policies, “oral or written counselings of employees are not considered disciplinary actions, [but] such counselings may be considered when assessing the appropriate penalty for a particular offense.” Pl. Exh. 13 at USA-04061.
12. Progressive discipline at BVAMC was generally consistent with a “Table of Penalties,” which served as “a guide in administering discipline to help assure that like disciplinary action is taken for like offense.” Pl. Exh. 13 at USA-00011, 04060. Regarding patient abuse, the Table of Penalties provided a reprimand as a minimum penalty and removal as a maximum penalty for the first infraction, a 14-day suspension as a minimum penalty and removal as a maximum penalty for a second infraction, and removal for a third infraction. Pl. Exh. 13 at USA-04062.
13. In addition to the Table of Penalties, certain mitigating and aggravating factors cited in Douglas v. VA, 5 M.S.P.R. 280 (1981) (the “Douglas factors”) were considered to
determine the appropriate disciplinary action for employee misconduct. Pl. Exh. 13 at USA-04060; Marshall Test., Nov. 28, 2022.
14. BVAMC disciplinary policies also provided for employees' due process. Before imposing discipline, such as a written reprimand or removal, an employee accused of misconduct was issued a notice of proposed reprimand or removal. The notice gave the employee an opportunity to contest allegations of misconduct by providing evidence in a written or verbal response. Marshall Test., Nov. 28, 2022; Hochberg Test., Nov. 28, 2022.
15. BVAMC disciplinary policies provided that disciplinary actions “may be initiated when it has been substantiated that a Staff member committed an act of misconduct as outlined in the Code of Conduct.” Pl. Exh. 13 at USA-00011; Def. Exh. 2. Under BVAMC disciplinary policies, “[a]ctions may be taken when it is evident that other supervisory techniques, such as verbal or written counseling[,] have failed to correct a given problem, or would be inappropriate given the severity of the misconduct.” Id.
16. If a complaint about an employee's conduct was received from a patient or another employee, it would be reviewed by the employee's supervisor. As necessary or appropriate, the supervisor would refer the complaint to BVAMC's Labor and Employee Relations department (“LER”) for evaluation and investigation. LER would consider the seriousness of the conduct at issue and the employee's disciplinary history to determine whether disciplinary action was warranted. LER would meet with the employee's supervisor or head of the relevant clinical department and recommend further action. Marshall Test., Nov. 28, 2022; Hochberg Test., Nov. 28, 2022.
C. History of Workplace Misconduct by EKG Technician
17. VA hired Grant Lewis as an electrocardiogram (“EKG”) technician in the Cardiology Section of BVAMC in September 1995. In addition to performing EKGs, Mr. Lewis performed stress tests, placed IVs in patients, placed halter monitors on patients, and scheduled appointments. Before his employment with BVAMC, Mr. Lewis spent eight years with the U.S. Navy Reserve and later worked for a private cardiology practice. Testimony of Grant Lewis, November 30, 2022.
18. Mr. Lewis was a talented EKG technician and exceptionally skilled at reading EKGs and performing IVs on patients. Robinson Test., Nov. 30, 2022.
19. At times relevant to this action, Mr. Lewis was directly supervised by Dr. Shawn Robinson, chief of the Cardiology Section at BVAMC. Dr. Robinson was responsible for ensuring that Mr. Lewis performed EKGs competently and made them available for review by attending physicians. Lewis Test., Nov. 30, 2022; Robinson Test., Nov. 30, 2022.
20. Dr. Robinson supervised approximately twenty employees in the Cardiology Section, including technicians, nurse practitioners, post-doctoral fellows, and cardiologists, in addition to direct patient care responsibilities. Dr. Robinson reported to Dr. Marc Hochberg, and Dr. Hochberg reported to Dr. Sandra Marshall, chief of staff at BVAMC. Robinson Test., Nov. 30, 2022; Hochberg Test., Nov. 28, 2022.
21. The normal administration of an EKG on a female patient required contact with the patient's breasts while the patient was partially disrobed. The lead that...
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