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Judge awards family $346K in med-mal case

Steve Lash//Daily Record Legal Affairs Writer//August 29, 2013

Judge awards family $346K in med-mal case

By Steve Lash

//Daily Record Legal Affairs Writer

//August 29, 2013

A federal judge has awarded more than $346,000 in damages to the family of a man whose death resulted from a doctor’s misdiagnosis of his condition at the Veterans Administration Medical Center in Baltimore.

Dr. Ethel Weld, then a second-year resident at the hospital, failed to consider the possibility that Maurice L. Johnson was suffering from a life-threatening complication of aortic graft surgery, and instead ordered medical tests for two less-serious conditions, Judge Richard D. Bennett wrote after the bench trial in U.S. District Court.

When those test results came back negative, Weld discharged Johnson.

Johnson, suffering from severe internal bleeding, was rushed to a different hospital the following night but died the next day, Oct. 11, 2007, according to Bennett’s memorandum opinion.

The Army veteran was 59.

Paul D. Bekman, the family’s attorney, said Bennett’s decision should send a message to veterans hospitals that patients who served in the military must receive at least “the same level of care” they would get in the finest medical facilities.

The judge concluded that Weld had violated a medical standard of care by failing to rule out the more serious condition — a secondary aortoenteric fistula, or AEF — as a differential diagnosis.

“Because Mr. Johnson had a history of aortic graft surgery and presented with evidence of gastrointestinal bleeding, he should have been worked up expeditiously for the appropriate study to rule out AEF,” Bennett wrote in his opinion. “Indeed, when performing a differential diagnosis, a doctor should attempt to rule out the most life-threatening condition first.”

While secondary AEF is “quite rare,” the opinion said, it “occurs, on average, two to six years after aortic graft surgery” and its main clinical manifestation is gastrointestinal bleeding.

Johnson had received the surgical graft in July 2002 to bypass a blockage in his aorta, and Weld’s initial tests showed he was suffering from blood loss, Bennett wrote.

Weld ordered tests for gastritis and renal stones — preliminary diagnoses that called for a CT scan without the need for the patient to ingest contrast material.

The scan revealed no gastritis or renal stones, but the radiologist who reviewed the results suggested another scan be conducted, with contrast, to examine the graft.

Instead, Weld discharged Johnson after giving him two pain medications and telling him to follow-up with a gastrointestinal specialist in one week, Bennett wrote.

Bekman said a doctor’s consideration of a differential diagnosis is “an elementary part of the practice of medicine” and a step that would have saved Johnson’s life.

“You’ve got to rule out an AEF,” said Bekman, of Salsbury, Clements, Bekman, Marder & Adkins LLC in Baltimore. “That just wasn’t done.”

The judge agreed.

“Had a CT scan with contrast been ordered by Dr. Weld, it would have shown evidence of a secondary AEF, as did the CT scan with contrast performed on Oct. 10, 2007 at Johns Hopkins,” Bennett wrote. “Upon reviewing such a CT scan, Mr. Johnson would have been referred to a vascular surgeon to undergo corrective surgery on the graft.”

Bennett awarded damages against the U.S. government, which operates the VA hospital.

U.S. Attorney Rod J. Rosenstein, whose office argued on behalf of the United States, said he is reviewing Bennett’s decision.

The defense argued, unsuccessfully, that Weld’s treatment was appropriate because incidents of AEF are so rare and the doctor reasonably suspected gastritis or renal stones.

“[B]ased on Mr. Johnson’s presentation, a reasonable physician would have first had to rule out AEF,” Bennett said. “Dr. Weld testified that she knew of the complications from an aortic graft and that the risk of an AEF was catastrophic. By not including secondary AEF in her differential diagnosis, Dr. Weld failed to meet the standard of care.”

The family filed suit in December 2010, alleging violations of the Federal Tort Claims Act. The FTCA requires bench trials and calls on federal judges to apply the local state law in its consideration of the case.

Earlier in the case, Bennett denied the government’s claim that the suit was filed after the three-year statute of limitations had run. The government also said that Weld’s status as a second-year resident doctor, under the direction of an attending physician from the University of Maryland Medical Center, meant that UMMC should be liable for Weld’s actions.

Bennett rejected both arguments this March, finding the suit was timely and that the terms of Weld’s resident agreement made her a VA hospital employee.

The case proceeded to trial, which was held from Aug. 12 through Aug. 16. Bennett issued his decision 12 days later.

The judge found the hospital negligent, based on Weld’s actions, and awarded $346,272 in damages to Johnson’s estate and his four adult children, Faye M. Goodie, Maurice Scott, Tiffany Johnson and Shelly Johnson.

Specifically, Bennett awarded the estate $75,000 for Johnson’s pain and suffering in his final days, $6,260 for the medical care he received at Hopkins, and $5,012 for funeral expenses. The judge awarded the four children a total of $260,000 in damages for their pain and suffering.

The total award of $335,000 in non-economic damages fell below Maryland’s statutory cap of $812,500 in wrongful death/medical malpractice cases that arose in October 2007, Bennett said.



U.S. District Court, Baltimore

Case No.:



Richard D. Bennett


Bench trial


Plaintiffs’ verdict ($346,272 damages)


Event: October 2007

Suit filed: Dec. 13, 2010

Trial: Aug. 12-16, 2013

Verdict: Aug. 28, 2013

Plaintiffs’ Attorneys:

Paul D. Bekman and Michael P. Smith of Salsbury, Clements, Bekman, Marder & Adkins LLC in Baltimore.

Defendant’s’ Attorney:

Assistant U.S. Attorney Jason D. Medinger in Baltimore.


Federal Tort Claims Act, wrongful death and survival action.


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