Bederson v. United States (935 F. Supp. 2d 48, 2013)

MEMORANDUM OPINION SETTING FORTH FINDINGS OF FACT AND CONCLUSIONS OF LAW

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 plaintiffs 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 plaintiffs 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. PROCEDURAL BACKGROUND

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, 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.

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?”). After 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. See 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, 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. Ill, 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.

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. See Fed.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.”).

II. FINDINGS OF FACT

A. 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) Vida 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 reheve 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 “changing] 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 Jackson

Mr. Jackson worked for 21 years as a maintenance worker at the apartment complex where Robert Bederson lived. Tr. ECF No. 108 at 74. Mr. Jackson testified that he regularly observed Mr. Bederson and considered him a friend. Id. at 76-77. He testified about his observations of Mr. Bederson both before and after June 17, 2007, using as a time reference the time before and after Mr. Bederson kept a pet dog, Pepé. Before that date, Mr. Jackson described Mr. Bederson as “active,” “alert,” and able to walk “fairly well” with a cane. Id. at 76-78. After that date, Mr. Jackson testified that Mr. Bederson “was a totally different guy. I didn’t see him walking without assistance, and every time I would see him or if he would even call down to the desk to ask for some assistance with something, he was always in a seat, you know, not mobile.” Id. at 78-79.

j) Todd D. Eisner, M.D.

Dr. Eisner was trained as a gastroenterologist at North Shore University Cornell Medical Center and Sloan-Kettering Cancer Center, is board certified in gastroenterology, and has practiced gastroenterology since 1995 in Florida. Tr. ECF No. 115 at 17-19, 24. He spends only a “very small percent of actual time” providing expert testimony rather than treating patients. Id. at 21. Dr. Eisner testified as the plaintiffs medical expert gastroenterologist concerning the standard of care applicable to the medical treatment provided by defendant Dr. Bakshi, the breach of this standard by defendant Dr. Bakshi in his care of Robert Bederson, and the injuries to Mr. Bederson caused by this breach. Id. at 17. Specifically, Dr. Eisner opined that defendant Dr. Bakshi breached the standard of care “by performing esophageal dilatation with the patient not being off Plavix for seven days.” Id. at 29. He further opined that the cause of Mr. Bederson’s heart attack on June .17, 2007 was loss of blood from an esophageal bleed at the site of the dilatation. Id. at 58 (Q: “What is your opinion, based on reasonable medical probability, as to the cause of Robert Bederson’s admission to Suburban Hospital in June of 2007?” Dr. Eisner: “He was bleeding at the site of the esophageal dilatation. from June 14th, 2007.”).

g) Alan David, M.D.

Dr. David is a family practice physician on the faculty of the Medical College of Wisconsin, in Milwaukee, Wisconsin, and Board certified in family medicine. Tr. ECF No. 109 at 3-4, 7. Dr. David testified as the plaintiffs medical expert on the communication of laboratory test results to patients. He opined that the VA physician, Dr. Melissa Turner, breached the national standard of care by: (1) waiting until June 17, 2007 to write a letter advising Robert Bederson that the results of his June 1, 2007 blood test showed he had significant anemia, Tr. ECF No. 109 at 21; PL’s Exh. 3; Findings & Conclusions ¶ 15, and (2) not outlining a plan and giving Mr. Bederson specific direction and guidance for follow-up so that the cause of his anemia could be determined, Tr. ECF No. 110 at 34-35; Findings & Conclusions ¶¶27, 33.

2. Government Defendant’s Witnesses

The government defendant presented the testimony of the following eight witnesses:

a) Barbara D. Chalom, PA

Ms. Chalom is a physician assistant who worked with Dr. Bakshi for about six years until November, 2012. Tr. ECF No. 116 at 18. She testified about her interactions with Mr. Bederson in June, 2007, while he was a patient in the Intensive Care Unit (ICU) at Suburban Hospital in Montgomery County, Maryland after his heart attack and the entries she made in his medical records at that time. Id. at 19, 28-44.

b) Sharon Matsui

Ms. Matsui is currently an RN case manager at a hospital in Hawaii, but in June, 2007 was employed as a staff nurse in the ICU at Suburban Hospital. Tr. ECF No. Ill at 87-88. Ms. Matsui testified about entries she made in Mr. Bederson’s medical records on June 22, 2007, while he was a patient at Suburban Hospital after his heart attack. Id. at 89-92.

c) Kathleen Bixby

Ms. Bixby has been a nurse for 33 years and employed since 2005 by the government defendant at the VA. Tr. ECF No. 112 at 41. She testified about her conversations with the plaintiff about Mr. Bederson’s care following his heart attack. Id. at 48-57.

d) Andree Turner-Kelly

Ms. Kelly has been employed for nine years by the government defendant at the VA and, in June, 2007, she worked in the Patient Service Center on the Medical Advice Line. Tr. ECF No. 113 at 91. She testified about an entry she wrote in Robert Bederson’s medical chart about taking a call from him on the advice line on June 11, 2007, when he requested a medication refill. Id. at 91-93, 105; Government Def.’s Exh. 17 at VA-226.

e) Melissa Turner, M.D.

Dr. Turner received her B.A. from Yale College, and both her medical degree and Master’s degree in Public Health from Johns Hopkins University, where she also completed her residency in internal medicine. Tr. ECF No. 112 at 59. She has worked as an internal medicine physician at the VA since August, 1999, and is currently the co-chief of the Primary Care Unit. Id. Dr. Turner was Robert Bederson’s only treating physician at the VA for the period from 2002 until 2007. Id. at GO-61, 64, 67. She testified about her treat-: ment of Mr. Bederson, his serious medical conditions, the medical records she maintained for Mr. Bederson, her assessment of the results of his blood test on June 1, 2007 and her communication of those results to Mr. Bederson. Id. at 63-82; Tr. ECF No. 113 at 56-90.

f) Jon Resar, M.D.

Dr. Resar is an interventional cardiologist, which is a sub-specialty of cardiology that involves the treatment of heart, valve or coronary disease using catheters rather than open heart surgery. Tr. ECF No. 113 at 4. He received his B.S. and medical degree from the University of Wisconsin-Milwaukee, and ■ completed his internal medicine residency at Johns Hopkins University, where he is currently an Associate Professor in the Division of Cardiology and Director of Interventional Cardiac Catheterization Training Program and a related laboratory. Government Def.’s Exh. 16 (Dr. Resar Curriculum Vitae). He is board certified in internal medicine, cardiovascular medicine, and interventional cardiology. Tr. ECF No. 113 at 7; Government Defi’s Exh. 16 at 3. He currently spends about 75 percent of his time treating patients. Tr. ECF No. 113 at 8. Dr. Resar testified, as the government defendant’s medical expert on cardiology, that the likely cause of Robert Bederson’s heart attack on June 17, 2007 was hypovolemic shock, or low blood volume, related to the “profound anemia,” resulting from a sudden blood loss between June 14 and 17, 2007. Id. at 10-11 (quote), 17, 31. He was unable to specify the cause of the sudden blood loss to a reasonable degree of probability, id. at 31-32, but distinguished the marked decrease in Mr. Bederson’s blood count on the day of his heart attack from the iron deficiency anemia revealed by the June 1, 2007 blood test results, id. at 17. He further opined that Robert Bederson’s chronic anemic condition made it a much worse outcome for him when he had a heart attack. Id. at 32-33.

g) Peter Manu, M.D.

Dr. Manu is the director of medical services at Zueker-Hillside Hospital on Long Island, New York, and has served on the faculty of medical schools since 1980. Tr. ECF No. 117 at 34-35. He is board certified in internal medicine. Id. at 35. Dr. Manu testified as the government defendant’s medical expert on causation and opined that, on June 17, 2007, Mr. Bederson had hypotension, or low blood pressure, id. at 38, related to bleeding that was caused by the EGD procedure performed on June 14, 2007, and not by his anemic condition, id. at 47-48. He did not see “any connection between” the “low hemoglobin” count shown on the June 1, 2007 blood test results and the heart attack on June 17, 2007. Id. at 48.

h) Ajay Bakshi, M.D.

Dr. Bakshi was called as a witness by the government defendant. Dr. Bakshi testified about use of the EGD procedure as a diagnostic tool for patients presenting with significant anemia and that, had he been aware of Mr. Bederson’s blood test results from June 1, 2007, he would still have performed the EGD procedure on June 14, 2007, as well as considered performing additional diagnostic procedures. Tr. ECF No. 112 at 36-39.

3. Dr. Bakshi’s Witnesses

a) Arnold Levy, M.D.

Dr. Levy attended medical school at George Washington University, did an internal medicine residency at Strong Memorial Hospital at the University of Rochester in Rochester, New York, is board certified in internal medicine and gastroenterology, and has been in private practice in Montgomery County for 35 years. Tr. ECF No. 110 at 26-29, 35. Dr. Levy testified as Dr. Bakshi’s medical expert on gastroenterology. He opined that Dr. Bakshi complied with the appropriate standard of care at all times during his treatment and care of Mr. Robert Bederson. Id. at 38. Specifically, Dr. Levy testified that given Mr. Bederson’s difficulty swallowing and the risk such difficulty posed of choking and aspiration of fluid from the esophagus to the lungs, performing expeditiously an EGD procedure with a balloon dilatation was appropriate. Id. at 39. He further opined that stopping the patient from taking Plavix only three days before the EGD procedure was also appropriate because of the risk of blood clots if Mr. Bederson, who had heart disease and implanted stents, were off the medication for a longer period of time. Id. at 40-41.

b) Bruce Matson Abell, M.D.

Dr. Abell received his medical degree from George' Washington University, where he also completed his residency. Tr. ECF No. Ill at 6-7 (Dr. Abell). He is currently a surgeon and director of both the surgical critical care unit and trauma services at the George Washington University Medical Center, and board certified in critical care medicine. Id. He testified as Dr. Bakshi’s medical expert on causation. He opined that the EGD procedure performed by Dr. Bakshi on June 14, 2007 did not cause or contribute to Mr. Bederson’s heart attack. According to Dr. Abell (1) the EGD procedure did not cause an upper GI or esophageal bleed since Mr. Bederson showed none of the expected results of such a bleed (e.g., large and smelly amounts of bloody stool, throwing up blood, abnormal BUN to creatinine ratio in blood test), id. at 14-22; (2) Mr. Bederson did not have any acute blood loss between June 14 and 17, 2007, id. at 9, 13, 55; and (3) Mr. Bederson’s heart attack was caused because he “had a significantly damaged heart that was at risk for a heart attack who became anemic.” Id. at 51.

c) Ajay Bakshi, M.D.

Dr. Bakshi received his medical degree in India and completed his internal medicine residency at the State University of New York at Stony Brook. Tr. ECF No. 118 at 24 (Dr. Bakshi). He holds four board certifications in internal medicine, rheumatology and immunology, allergy and immunology, and in gastroenterology and hepatology. Dr. Bakshi was Robert Bederson’s gastroenterologist from October, 1994 until July, 2007. Id. at 27. He testified about his treatment of Mr. Bederson, which involved performing a colonoscopy on him in 1995 and “nine upper endoscopies to take care of different problems with his esophagus,” id. at 30-31, including the endoscopy procedure he performed on June 14, 2007.

B. Robert Bederson’s Condition Pri- or to June 1, 2007

1. In June, 2007, prior to his heart attack on June 17, 2007, Robert Bederson was 83 years old and suffered from a number of serious medical conditions, including severe carotid artery disease, severe coronary artery disease, diabetes, hypertension (or high blood pressure), with gastrointestinal complaints involving recurrent chest pain and occasional difficulty swallowing. Tr. ECF No. 115 at 30-31, 39 (Dr. Eisner); Tr. ECF No. 118 at 33 (Dr. Bakshi). For these various medical conditions, Mr. Bederson received treatment outside of the VA from multiple private physicians, including a cardiologist, neurologist, neurosurgeon, and physiatrist (a physical therapy doctor). Tr. ECF No. 112 at 62 (Dr. Turner).

2. Robert Bederson’s extensive medical history included the following:

a. In 1989, Mr. Bederson had heart surgery. Tr. ECF No. 108 at 98 (Plaintiff).

b. In 1994, Dr. Bakshi first treated Mr. Bederson when he went to the emergency room for a “food bolus impaction,” because “he had a piece of meat stuck in his lower esophagus.” Tr. ECF No. 118 at 30 (Dr. Bakshi); see also Tr. ECF No. 108 at 101-02,115'(Plaintiff)..

c. In August, 2000 and October, 2001, Robert Bederson was seen by a neurologist for “difficulties of gait difficulty and memory problems. At that time the diagnosis was benign essential tremors and multifactorial gait problems including deconditioning, age, atrophy and cervical myelopathy.” PL’s Exh. P7 (Letter, dated April 5, 2010, from Debbie Lin, M.D.).

d. In 2001, at Johns Hopkins Hospital, Robert Bederson had major surgery involving a spinal fusion to treat his cervical or spinal stenosis condition, which surgery required rehabilitation. See Tr. ECF No. 108 at 99 (Plaintiff); Tr. ECF No. 116 at 130-32 (Plaintiff); Tr. ECF No. 112 at 76 (Dr. Turner).

e. In 2002, at Georgetown Hospital, Mr. Bederson underwent a procedure for normal pressure hydrocephalus that involved placement of a shunt to relieve the buildup of fluid in the brain and to assist with his cognitive functioning. See Tr. ECF No. 108 at 99-100; Def.’s Exh. BE at 50003 (Neurological Consultation, dated August 10, 2006).

f. In October, 2004, Mr. Bederson had another heart surgery for the placement of stents to increase the flow of blood in his heart, which had reduced function. Tr. ECF No. 108 at 98-100 (Plaintiff); Tr. ECF No. 113 at 9 (Dr. Resar); Tr.-ECF No. 116 at 90, 129-32 (Plaintiff); Def.’s Exh. BF at 60007. After having stents placed in his heart in 2004, Mr. Bederson was required to take the anti-platelet medication Plavix, or the generic, clopidogrel, for the rest of his life. Tr. ECF No. 109 at -24 (Dr. David); Tr. ECF No. 108 at 101 (Plaintiff); Tr. ECF No. 116 at 90-91 (Plaintiff); Tr. ECF No. 118 at 33 (Dr. Bakshi). He had his prescription for the Plavix/clopidogrel medication filled at the VA, along with his prescriptions for other medications. Tr. ECF No. 112 at 62-63 (Dr. Turner testifying: “... the V.A. pharmacy benefit was fabulous ... a lot of patients came in who didn’t usually come to see us. Patients who had doctors on the outside wanted to come in to get their medications prescribed.”); id. at 67.

g. In December, 2004, Dr. Bakshi performed an upper endoscopy procedure on Robert Bederson, while Mr. Bederson was taking Plavix/elopidogrel. See Tr. ECF No. 115 at 48, 87, 99 (Dr. Eisner); Tr. ECF No. 118 at 68 (Dr. Bakshi).

h. In 2006, an echocardiogram showed that Mr. Bederson had “a left ventricular ejection fraction of about 35 percent [which is] approximately half of what we would consider to be normal.” Tr. ECF No. 113 at 9 (Dr. Resar); see also Def.’s Exh. BF at 60006 (Echocardiogram Report, dated May 4, 2006). This reflected a decline from a left ventricular ejection fraction of 45 to 49 percent shown in Mr. Bederson’s medical records from several prior years. See Def.’s Exh. BF at 60000 (Cardiology Report, dated Dec. 23, 2004) (“left ventricular ejection fraction is estimated to be 49%”); id. at 60009-11 (Cardiology Report, dated September 13, 2004) (stating “left ventricular ejection fraction is estimated to be 45%”); id. at 60012 (Cardiology Report, dated August 12, 2003) (same); id. at 60013 (Cardiology Report, dated January 18, 2003) (stating “left ventricular ejection fraction of 45%”).

i. In December, 2006, Mr. Bederson had difficulty standing or walking and was discharged from physical therapy at the National Rehabilitation Hospital in Wheaton, Maryland because he was not improving. Def.’s Exh. BE (Chart note, dated January 17, 2007, by Norman Luban, M.D.); but see Tr. ECF No. 116 at 132-36, 139^10, (Plaintiff denied that his father was having .trouble standing and walking at the end of 2006 and beginning of 2007 and testified that the physical therapist was “wrong” to believe that therapy could not provide further improvement).

j. In January, 2007, Mr. Bederson’s “progress had steadily declined,” with “poor” balance and “diminishing” function at home. Def.’s Exh. BE at 50001 (Chart note, dated January 17, 2007, by Norman Luban, M.D.). He had trouble standing and needed constant supervision. Id. He also needed a bath transfer bench to assist with his moving from his wheelchair into the bathtub. Id. While improvement in his condition was noted during a check-up two months later, in March, 2007, since he was able to walk with a walker rather than use a wheelchair, Mr. Bederson’s balance remained “poor.” Def.’s Exh. BE at 50000 (Chart note, dated March 15, 2007, by Norman Luban, M.D.).

3. Notwithstanding Robert Bederson’s serious medical conditions, as reflected in his medical records admitted at trial, the plaintiff testified that, in 2006 and 2007 prior to his father’s heart attack on June 17, 2011, his father was in “good health” and was able to visit with family, travel to out-of-town events, do light cooking and prepare food for himself, get his mail, pay bills, go shopping, run errands, walk on his own without the need for a wheelchair, and socialize with friends. Tr. ECF'No. 108 at 103-06, 108-14 (Plaintiff). The plaintiff visited with his father three or four times per week, and spoke to him over the telephone two or three times each day. Mr. Bederson was able to discuss a variety of topics, such as family members, business, the stock market and investing. In fact, the plaintiff testified that many of their relatives used his father as a financial ad-visor. Id. at 105.

C. Robert Bederson’s Treatment at the VA Hospital, Including on June 1, 2007

1. As a WWII veteran, Robert Bederson was eligible for medical treatment through the Veterans Administration and began seeking treatment at the VA in March 2001. Tr. ECF No. 108 at 102-03 (Plaintiff). Robert Bederson’s first appointment with Dr. Turner occurred on February 2, 2002, when he was accompanied by the plaintiff. Tr. ECF No. 112 at 61 (Dr. Turner); Tr. ECF No. 113 at 60 (Dr. Turner); Tr. ECF No. 116 at 88, 104 (Plaintiff). Although the plaintiff accompanied his father to the first few appointments at the VA, Robert Bederson was usually accompanied by Rose Adolpho, a home health aide, or another aide substituting for her. Tr. ECF No. 108 at 102-03 (Plaintiff); Tr. ECF No. 116 at 92-94, 98 (Plaintiff); Tr. ECF No. 113 at 59-60 (Dr. Turner).

2. Dr. Turner saw. Mr. Bederson for medical checkups about every eight or nine months. Tr. ECF No. 116 at 87-88 (Plaintiff); Tr. ECF No. 112 at 60-61, 67 (quote) (Dr. Turner) (Dr. Turner: “I tried to see him every six months, but as I said, he came in every eight or. nine months.”). The VA indicated that to obtain treatment through the VA, Robert Bederson had.to use the VA for his primary care, a policy that Dr. Turner apparently confirmed with him on his first visit with her on February 14, 2002. Tr..ECF No. 113 at 73 (Q: “... when he came in on February 14th of 2002, he came in to establish a primary care relationship, correct?” Dr. Turner: “With me in the V.A., yes.”); Tr. ECF No. 108 at 102-03 (Plaintiff); Tr. ECF No. 116 at 104-05 (Plaintiff). Nevertheless, Mr. Bederson used the VA principally to obtain medications because his medications were very expensive, while the VA pharmacy benefit was $2 per prescription, which was the best price available at the time. Tr. ECF No. 116 at 87 (Plaintiff); Tr. ECF No. 112 at 62-63 (Dr. Turner). Indeed, Dr. Turner was aware that Mr. Bederson was receiving treatment from a number of private physicians not associated with .the VA, including a cardiologist, a neurologist, a neurosurgeon, a physiatrist (a doctor of physical therapy), and a private primary care physician, who were all addressing Robert Bederson’s serious medical conditions. See Tr. ECF Ño. 113 at 25, 38 (Dr. Turner); Tr. ECF No. 112 at 61-62 (Dr. Turner).

3. Dr. Turner was Mr. Bederson’s only treating physician at the VA, but sl^e did not diagnose the conditions for which she was prescribing medications. Tr. ECF No. 112 at 64-65. Since her name was on the prescriptions, she had to make sure the medications worked and were not causing Mr. Bederson any problems. Id. at 63. Consequently, Dr. Turner was effectively treating Mr. Bederson for his blood pressure, and occasionally for other conditions that could be addressed through medications only. Id.

4. Despite repeated requests that Robert Bederson provide medical records from, and the names of, his private treating physicians, he failed to provide them to Dr. Turner, who consequently relied on Mr. Bederson to advise her of relevant information from his private doctors. Tr. ECF No. 112 at 65-66 (Plaintiff); Tr. ECF No. 113 at 88-89 (Dr. Turner); Tr. ECF No. 116 at 106-07 (Plaintiff). Consequently, Dr. Turner did not know the names or have contact with any of Mr. Bederson’s treating physicians outside of the YA. Tr. ECF No. 112 at 61-62.

5. By contrast, medical records maintained by Dr. Alpana Goswani, whom the plaintiff described as “dad’s local internist,” Tr. ECF No. 116 at 103, indicate that Mr. Bederson saw Dr. Goswani more regularly than he did Dr. Turner and, in fact, during the six-month period prior to June 17, 2007, Mr. Bederson had checkups with Dr. Goswani twice in March, spoke to her in April, and had additional check-ups in May, 2007. Def. Bakshi’s Exh. 3 at 30009-12. In addition, the medical records for Mr. Bederson that were admitted at trial reflect that Dr. Goswani was provided copies of treatment reports from other specialists who were treating Mr. Bederson, including from radiologists and neurologists. Def. Bakshi’s Exh. 3 at 30038-39, 30041-42, 30051; Def. Bakshi’s Exh. 5. Specialists usually provide copies of their reports to the primary care physician designated by the patient. See Tr. ECF No. 112 at 29-30 (Dr. Bakshi). '

6. The VA medical records reflect that Dr. Turner spoke to Mr. Bederson on February 6, 2007, when he “called about plavix.” Government Def.’s Exh. 13 at VA-234 (Progress Note by Dr. Turner). According to the Progress Note, Dr. Turner observed that Mr. Bederson had been taking Plavix “for several years” and advised him that “it is controversial to continue taking it for so long: [A]sked him to speak to his cardiologist about switching to aspirin alone.” Id. The plaintiff does not remember hearing about this. Tr. ECF No. 116 at 95. The plaintiff also indicated that his father did not involve the plaintiff fully in his medical care since Mr. Bederson “was his own person,” id. at 107, 117, and prior to June 17, 2007, he “took care of his meds,” id. at 116.

7. Dr. Turner saw Mr. Bederson for a follow-up visit on June 1, 2007, at which time he was 83 years old, in a wheelchair and accompanied by his aide, who reported that he had stumbled and fallen recently. Tr. ECF No. 112 at 61, 67-68 (Dr. Turner); Tr. ECF No. 113 at 74 (Dr. Turner). Mr. Bederson appeared to Dr. Turner to look “weak,” and, in fact, he told her that “he felt weak and was tired.” Tr. ECF No. 112 at 68 (Dr. Turner). Upon examination, Dr. Turner noticed that Mr. Bederson’s blood pressure was lower than usual for him, that his heart rate was quite low, and he had lost about 17 pounds since, his previous visit. Id. at 68.

8. During the June 1, 2007 appointment, Dr. Turner typed out a list of the medicines that Mr. Bederson indicated he used based on his handwritten list, which did not include the dosage levels. Id. at 71 (Dr. Turner). In Dr. Turner’s estimation, there were a number of redundant medications on the list, including “five or six blood pressure medicines alone.” Id. at 69 (quote), 72. She was concerned that Mr. Bederson might have been on too much anti-hypertensivé (or blood pressure) medication, id. at 68, as well as medication to help with tremors that “lowered the heart rate,” id. at 72. To address this concern, she typed out a list in Microsoft Word, reduced his medications, and directed him to throw out everything at home that was not on the list. Id. at 73; see also Government Def.’s Exh. 13 at 20035/226/3022 (VA Progress Note for June 1, 2007). Dr. Turner advised Mr. Bederson to share the list with “his private primary care physician” and “bring bottles of his medications whenever he goes to see a provider.” Government Def.’s Exh. 13 at 20035/226/3022 (VÁ Progress Note for June 1, 2007). She wanted him to make it clear to his treating physicians what he was taking. Tr. ECF No. 112 at 73 (Dr. Turner). Dr. Turner refilled Mr. Bederson's prescription for Plavix and advised him to continue taking that medication and aspirin. Tr. ECF No. 113 at 84-85.

9. During the June 1, 2007 appointment, Dr. Turner directed Mr. Bederson to have laboratory tests performed that day to check his blood count and the functioning of his liver and kidneys. See Tr. ECF No. 112 at 73-74 (Dr. Turner).

Blood Test Results

10. The results of the June 1, 2007 blood test were returned and accessible by computer at 22:47 hours, or 10:47 p.m., on Friday, June 1, 2007, when Dr. Turner was no longer in the office. See Tr. ECF No. 112 at 74 (Dr. Turner). Dr. Turner testified that she probably saw these test results three days later on the Monday (June 4, 2007). following Mr. Bederson’s Friday appointment. Id. at 74 (Dr. Turner).

11. Dr. Turner explained the three different levels of laboratory results: emergent, abnormal, and normal. According to guidelines set forth in Veterans Health Administration (‘VHA”) Directive 2003-043, titled “Ordering and Reporting Patient- Test Results” (“VHA Directive”), Government Def.’s- Exh. 15, when a patient’s blood levels register at a certain emergent level, then the patient’s doctor is paged as soon as the results are available. Tr. ECF No. 112 at 75. By contrast, if none of the patient’s blood test results is at the emergent (or critical) level, the patient’s doctor is not paged and the clinician decides how to handle the results. See id. at 75, 80 (Dr. Turner); Tr. ECF No. 113 at 64 (Dr. Turner).

12. In this case, Mr. Bederson’s results showed a “lower than normal” hemoglobin level at 9.1. Tr. ECF No. 112 at 76 (Dr. Turner); PL’s Exh. 3.

13. Dr. Turner interpreted Mr. Bederson’s hemoglobin levels as showing he had a slowly developing iron deficiency anemia, which she felt was “an important thing that needed to be sorted out.” Tr. ECF No. 112 at 76. She did not believe it was emergent, but it was urgent as she indicated in her subsequent letter to Mr. Bederson. Id. at 76-77 (Dr. Turner); PL’s Exh. P3. Based upon his review of Mr. Bederson’s medical records from the VA and from other treating physicians, Dr. Manu, a government medical expert, concurred that Mr. Bederson’s “iron deficiency ... ha[d] been going on for at least two years ... It’s definitely chronic. It’s been going on for a long time,” at the time of the June 1, 2007 blood test. Tr. ECF No. 117 at 64-65 (Dr. Manu).

14. The June 1, 2007 blood test also showed that Mr. Bederson’s hematocrit level was at 27.3. Pl.’s Exh. 3. The “hematocrit” value is a way of denoting the volume of red blood cells, with a “normal” hematocrit level being about 38 to 40 and an “emergent” hematocrit level being 25. Tr. ECF No. 112 at 80 (Dr. Turner). Although Mr. Bederson’s level was very close to the level the VA considers emergent, Dr. Turner determined that the June I, 2007 blood test results were not emergent but only abnormal and, therefore, did not require immediate notification. Id. According to the VHA Directive, “[a]n abnormal Test Result is a diagnostic finding that requires attention by the ordering practitioner, but not necessarily in an immediate time frame.” Id. at 78-80 (Dr. Turner quoted from Government Def.’s Exh. 15). Dr. Turner considered the blood test results sufficiently, urgent to require reasonable notification and followup. Tr. ECF No. 112 at 81; see also Government De£’s Exh. 15 (“Abnormal results need to be communicated to the patient, as appropriate.”).

15. The unanimous testimony of those medical experts who offered an opinion about the seriousness of the June 1, 2007 blood test results concurred with Dr. Turner that Robert Bederson’s hemoglobin level, at 9.1 grams, was an abnormal level, but was not a critical or emergent lab value. See Tr. ECF No. 109 at 21 (Dr. David); Tr. ECF No. 117 at 39-41 (Dr. Manu); Tr. ECF No. 113 at 80 (Dr. Turner); Tr. ECF No. 113 at 17 (Dr. Resar) (“the determinations on June 1st were not a severe anemia.. Hematocrit of 27 and hemoglobin of 9 do not represent a severe anemia.”); id. at 27 (Dr. Resar) (“Hematocrit of 27.3 percent in many patients is a chronic level at which they function normally, and in the context of this iron deficiency anemia that was commonly diagnosed, does not in and of itself constitute a critical value.”). Specifically—

a. Drs. Resar and Manu noted that at a hemoglobin level of six or lower, blood cells cannot deliver enough oxygen, but Mr. Bederson’s hemoglobin level of 9.1 was higher than that critical level of six. Tr. ECF No. 117 at 41-42, 55-56 (Dr. Manu); Tr. ECF No. 113 at 26-27 (Dr. Resar).

b. Dr. David, the plaintiffs expert, also acknowledged that the reading of a hemoglobin level at 9.1 was not a critical lab value, but consistent with the content of D.r. Turner’s June 17, 2007 letter, required notice to Mr. Bederson that he had a new health problem, the cause for which was not clear, and that it needed to be followed up and investigated either by Dr. Turner herself or one of Mr. Bederson’s private doctors. Tr. ECF No. 109 at 21, 31, 33-37 (Dr. David).

16. The medical experts for both the plaintiff and the government defendant agreed that Mr- Bederson’s anemic condition had been progressing over a lengthy time period of months. See Tr. ECF No. 109 at 102 (Dr. David: “The process of developing the anemia had been going on for months, I would agreé.”). Similarly, both Drs. Resar and Manu concluded, based upon their review of Mr. Bederson’s medical records, that certain laboratory results (i.e., the “MCV” and “RDW” values) were consistent with a slowly declining hemoglobin level and that he had been anemic for some time. Tr. ECF No. 117 at 55, 60-65 (Dr. Manu); Tr. ECF No. 113 at 15-17 (Dr. Resar).

17. No firm evidence about the exact cause of Mr. Bederson’s anemia reflected in the June 1, 2007 blood test is in the record, but three potential sources were identified: a slow blood loss in the gastrointestinal tract, possibly from colitis; an iron deficiency because of Mr. Bederson’s age and malabsorption; and a dietary insufficiency involving a lack of iron. Tr. ECF No. 109 at 32-33 (Dr. David); Tr. ECF No. 113 at 65-66, 82-83 (Dr. Turner); Tr. ECF No. 111 at 53 (Dr. Abell); Tr. ECF No. 117 at 99-100 (Dr. Manu); Findings & Conclusions ¶ 196.

Dr. Turner’s Letter to Robert Bederson

18. Dr. Turner’s practice when communicating significant medical information is to speak directly with the patient. Tr. ECF No. 113 at 61 (Dr. Turner). While Dr. Turner had Robert Bederson’s home address and home telephone number, as well as contact information for his next of kin, she decided to communicate Mr. Bederson’s lab test results to him by letter because she did not want to “confuse him,” and, in a letter, she could provide clear, written instructions that Mr. Bederson could show to his son, his home care aide, and take to his private doctors. Tr. ECF No. 112 at 81 (Dr. Turner); see also Tr. ECF No. 113 at 60, 77 (Dr. Turner). Moreover, Dr. Turner had not been given specific permission to call Robert Bederson’s family members or to speak to family members. Tr. ECF No. 113 at 71-72 (Dr. Turner).

19. Dr. Resar, a government expert, testified that in the context of this case, he would have called Mr. Bederson, reported the abnormal test results, and advised him to see a gastroenterologist because he had an iron deficiency anemia. Tr. ECF No. 113 at 45. For a patient who was somewhat confused, Dr. Resar would communicate the abnormal test results to another family member because of the time delay with a letter, and because the patient might not be cognizant of the importance of the issues. Id.

20. Dr. Turner wrote her letter to Robert Bederson on Sunday, June 17, 2007, the date on the letter, and it was mailed to him the next day on June 18, 2007. She believed that notifying Mr: Bederson of his June 1, 2007 blood test results by letter two weeks after learning about the results was consistent with the YA guidelines, which left the timing of the reporting of abnormal results to the determination of the practitioners as to what is “appropriate.” See Tr. ECF No. 112 at 81 (Dr. Turner); Government Def.’s Exh. 15 (VHA Directive at ¶ 4(a)(2)). Dr. Turner’s letter stated, in full:

I reviewed the results of your labwork and have found another reason why you may be feeling weak these days. You have developed a significant anemia. That means your red blood cell count is lower than it should be. I suspect you are losing blood from your intestines, but I don’t know this for sure.

One of the medications you asked me to prescribe for you, Plavix, can cause excessive bleeding.

It is urgent that you and your physicians sort out the cause of the anemia and determine whether it makes sense for you to continue the Plavix. Enclosed is a copy of the blood work results. I would like you to show it to your primary care provider soon. In the event you prefer to -have me sort out the cause, please come to the lab for more blood testing. You don’t need to have an appointment.

I will review the results and tell you what I think our next step should be.

Pl.’s Exh. 3. This letter also enclosed two pages of detailed print-outs of Mr. Bederson’s lab results. Id.

21. Dr. Turner described Mr. Bederson’s blood test results as “urgent” in the letter because she wanted him “to take it seriously” and the hematocrit value made it urgent “to do the workup.” Tr. ECF No. 113 at 73 (Dr. Turner). The letter makes clear to Mr. Bederson that the next step was for him to follow up with his physicians and figure out the cause of his anemia and determine the next steps he should take, including whether he should continue taking Plavix. If Mr. Bederson returned to Dr. Turner for treatment of the anemia, she would have done more lab work to figure out the source of the anemia or arranged for him to see a VA gastroenterologist. Id. at 65-66, 81-82 (Dr. Turner). If additional tests had come back showing a low iron level, Mr. Bederson would have been given iron supplements to build up his iron stores and address his low hemoglobin and hematocrit. Id. (Dr. Turner).

22. Dr. David, the plaintiffs medical expert, was critical of both the timing and the contents of the June 17, 2007 letter. He opined that Dr. Turner should have communicated the results to Mr. Bederson by the next regular business day, Monday, June 4, 2007, or at the latest, June 5, 2007. Tr. ECF No. 109 at 31. In addition, Dr. David believed that the letter should have provided a greater level of detail about the course of action Mr. Bederson should have taken in response to the low hemoglobin finding. Id. at 34-35. According to Dr. David, Dr. Turner’s letter “leaves the patient as the sole decider of what ... to do.” Id. at 37.

23. Dr. Turner was aware that Robert Bederson called her office on June 11, 2007. Tr. ECF No. 113 at 79 (Dr. Turner). As of that date, Mr. Bederson’s blood test results were ready and available, but he was not informed of them. Id. Dr. Turner had already decided that she was going to mail Mr. Bederson a letter, which she subsequently prepared on June 17 and mailed on June 18, 2007. Id.

D. Dr. Bakshi’s Treatment of Robert Bederson in June, 2007

1. In early June, 2007, the plaintiff observed Robert Bederson choking while he was eating, and did not want this condition to interfere with upcoming travel to a family wedding. Tr. ECF No. 108 at 114-15 (Plaintiff). The plaintiff contacted Dr. Bakshi, who had treated Mr. Bederson in the past, to schedule an EGD procedure to make “sure that I wasn’t going to have a problem at the wedding. That’s really what I was after.” Tr. ECF No. 108 -at 115-16 (Plaintiff).

2. Mr. Bederson’s housekeeper, Robin Vines, took Robert Bederson to Holy Cross Hospital on June 14, 2007, for Dr. Bakshi to perform the EGD procedure. See Tr. ECF No. 108 at 34-35, 38, 48, 60 (Vines). The purpose of the June 14, 2007 EGD procedure was to determine the etiology for Robert Bederson’s chest pain and difficulty swallowing. Tr. ECF No. 118 at 31 (Dr. Bakshi); Tr. ECF No. 115 at 31 (Dr. Eisner) (“His gastrointestinal complaints at that time were of recurrent chest pain and occasional difficulty swallowing. That was the purpose of doing the endoscopy, to look for an etiology for his chest pain and difficulty swallowing.”).

Robert Bederson’s Medications at Time of Endoscopy Procedure

3. Mr. Bederson had written down a list of all of the medications he was taking on a regular basis and Ms. Vines gave the list to the attending nurse when they arrived at Holy Cross Hospital on June 14, 2007 for Mr. Bederson’s EGD procedure. See Tr. ECF No. 108 at 38-40 (Vines). Ms. Vines admitted that she was not sure whether Mr. Bederson had been off Plavix/clopidogrel for seven days prior to that date. Tr. ECF No. 108 at 39-40, 55-57 (Vines).

4. The Holy Cross Hospital medical records indicate that Mr. Bederson last took Plavix on June 11, 2007, or three days before the EGD procedure was performed. Tr. ECF No. 110 at 73 (Dr. Levy); Tr. ECF No. 115 at 45 (Dr. Eisner).

5. The medical experts presented differing views of whether Robert Bederson should have stopped taking Plavix/elopidogrel for a longer period than three days before the EGD procedure. Dr. Eisner, the plaintiffs expert gastroenterologist, opined that Robert Bederson should have been off the Plavix/clopidogrel for seven days if a dilatation were going to be performed, because a dilatation causes bleeding by stretching the mucosal lining of the esophagus, and is a high risk procedure with regard to-bleeding. Tr. ECF No. 115 at 31-32, 38, 54-56, 70, 90-91. According to Dr. Eisner, in three days, Mr. Bederson did not have sufficiently functioning platelets to support clotting. Id. at 46-47, 54 (Dr. Eisner). By contrast, Dr. Levy, Dr. Bakshi’s expert gastroenterologist, opined that three days of stopping Plavix/clopidogrel met the standard of care, particularly in view of the risks of heart attack, stroke, or pulmonary embolism posed by- stopping these medications in a patient with Mr. Bederson’s medical history of multiple stent placements and the associated risk of clotting. Tr. ECF No. 110 at 40-41, 61; see also Tr. ECF No. 112 at 33 (Dr. Bakshi) (“Pm happy with him being off it for three days. I’m happy • with doing the procedure even on the Plavix and the aspirin.”).

6. The results of the EGD procedure performed by Dr. Bakshi showed that the esophagus appeared normal, with no definite strictures observed. Tr. ECF No. 115 at 42 (Dr. Eisner). Based upon an examination of the photographs taken during, and the operative notes for, the EGD procedure performed on June 14, 2007, Dr. Levy concurred with Dr. Bakshi’s finding at the time of the procedure that the procedure did not produce bleeding. Tr. ECF No. 110 at 54-57. Dr. Levy further opined that the risk of any massive GI bleed from the procedure was “remote.” Id. at 54, 83-84.

EGD Procedure Would Have Been Performed if June 1, 2007 Blood Test Results Were Knoum

7. Dr. Bakshi testified that if he had been aware of the VA lab results showing the hemoglobin level at 9.1, he would have proceeded “even more so” with the EGD procedure to determine the source of the blood loss. Tr. ECF No. 112 at 36-37 (Dr. Bakshi). Moreover, if he had been aware of the VA lab results, Dr. Bakshi would have done additional tests to determine the source of the blood loss.. Id. at 37. These tests would have included a colonoscopy to examine the colon, and a video capsule endoscopy to examine the -small intestine, to see whether Robert Bederson was bleeding from those areas. Id. If those tests were negative, he would have done a CAT scan. Id. This is his standard protocol to “do all four tests to find out where the patient is bleeding from.” Id.

8. Drs. Levy and Resar concurred with Dr. Bakshi that if Robert Bederson’s June 1, 2007 blood test results had been known, the EGD procedure would have been performed in an effort to determine the cause of any possible bleed that Mr. Bederson may have been experiencing. Tr. ECF No. 110 at 88-89 (Dr. Levy) (confirming that had he known of iron deficiency anemia with a hemoglobin of 9.1 from June 1, 2007 blood test, he would have been even more likely to do the EGD procedure to investigate the upper GI tract as a possible source of blood loss and to find out the source of the anemia); Tr. ECF No. 113 at 18 (quote), 36, 42, 45 (Dr. Resar) (“one needs to diagnose what the cause of the iron deficiency is, and the way to do that is with endoscopy; generally, lower endoscopy, a colonoscopy for the colon and an upper endoscopy for the esophagus and stomach. So that’s what one would routinely do in that setting is to undergo a GI evaluation, which is the most common cause in an elderly person of an iron deficiency anemia”).

9. In addition, the biopsy part of the EGD procedure performed by Dr. Bakshi to test for eosinophilic infiltration; “which is a type of inflammation of the upper GI tract that can lead to bleeding,” would have been an appropriate diagnostic action taken to ascertain the source of the chronic anemia shown on the June 1, 2007 blood test. Tr. ECF No. 113 at 37 (Dr. Resar).

Robert Bederson’s Condition Immediately After Endoscopy Procedure

10. After the procedure was completed, Robin Vines took Robert Bederson back to his home and stayed with him until approximately 7:00 p.m. See Tr. ECF No. 108 at 40-41, 43. Ms. Vines also provided home aide services to Robert Bederson at his home, on June 15 and 16, 2007, during which time he appeared to be “doing fine,” and made no complaints about having bloody stools or bleeding of any kind. See id. at 44, 62.

11. The plaintiff also saw his father on the evening of June 15, 2007, when the plaintiff picked up Mr. Bederson and took him out to dinner and they had “a wonderful evening.” Tr. ECF No. 110 at 9 (Plaintiff) (Q: “... we can draw the conclusion that you thought there was nothing going wrong with your dad that evening?” Plaintiff: ‘Tes.”).

E. Robert Bederson’s Heart Attack on June 17, 2007 and Subsequent Medical Treatment

1. On June 17, 2007, when Robin Vines arrived for work at Mr. Bederson’s apartment, she found Mr. Bederson still in bed. She testified that “he would normally, you know, will be up waiting for me.... ” Tr. ECF No. 108 at 44-45.

2. Later the same day, Mr. Bederson told Robin Vines that he did not feel well and appeared pale. Id. at 45, 47. Ms. Vines called a nurse who lived upstairs from Mr. Bederson in the same apartment complex. Id. at 45. After observing Mr. Bederson, the nurse concluded that he needed to be hospitalized and called an ambulance. Id. at 45-46. Ms. Vines called the plaintiff. Id. at 46.

3. An ambulance responded and took Robert Bederson to Suburban Hospital’s emergency room in an unconscious condition in hemorrhagic shock. At that time, Mr. Bederson had a blood pressure reading of 40 over zero, and a hemoglobin level of 6.4. Tr. ECF No. 109 at 22 (Dr. David).

4. In the emergency room, Mr. Bederson had to be resuscitated. Tr. ECF No. 109 at 41-42 (Dr. David); Government Def.’s Exh. 13 at VA-223 (Dr. Turner’s entry in Progress Note, dated July 5, 2007, that “patient was resuscitated.”). When the plaintiff saw his father in the ICU, he found his father unable to move, delirious, and in and out of cohesive thoughts. Tr. ECF No. 116 at 48-50 (Plaintiff).

5. Soon after he was admitted to Suburban Hospital on June 17, 2007, Mr. Bederson had dark or burgundy stools and hypo-tension or low blood pressure. See Tr. ECF No. 115 at 62, 98 (Dr. Eisner); Tr. ECF No. 117 at 49-50 (Dr. Manu).

Ms. Chalom’s Conversation with Robert Bederson

6. Physician assistant Barbara Chalom, who worked for Dr. Bakshi in June 2007, testified, based on her review of a page from Suburban Hospital medical records, see Exh. J1 at 517, that she saw patient Robert Bederson in his hospital room at Suburban Hospital on June 20, 2007. Her entry on that date states: “Patient with esophageal strictures that developed melana and severe anemia with hypotensive shock/post hemorrhagic shock.” Tr. ECF No. 116 at 29. She explained that her comment about shock meant “that his blood pressure was low, severely low, and that he had had a bleed.” Id. Ms. Chalom further explained that the entry “developed melana” refers to a report of dark stools, which could indicate a bleed from the small intestine or the colon or “the upper end, the upper part of the intestine or the stomach.” Id. at 39. ■ ■

7. Ms. Chalom spoke to Mr. Bederson, asking him “whether or not he had followed the instructions that he had been given, and he indicated to [her] that he had not followed the instructions.” Tr. ECF No. 116 at 29-31, 41 (quote), 44. Her record entry on June 20, 2007 states, in pertinent part: “he states that he did not stop Plavix and does remember being told to stop Plavix so this could be part of the GIB picture.” Exh. J1 at 517.

8. The plaintiff was present when Ms. Chalom spoke to his father, and recalled that his father “was having a lot of trouble with emotional issues, and his memory was impaired.” Tr. ECF No. 113 at 97. The plaintiff knew this because his father had no recollection of the family dinner two days before, nor did he recall having the EGD by Dr. Bakshi on June 14, 2007. See id. The plaintiff recalled that in response to Ms. Chalom’s question, Mr. Bederson answered “yes,” and then she asked the exact same question, and he answered “no.” Id. at 98.

Plaintiffs Telephone Conversation with Dr. Turner

9. The plaintiff called Dr. Turner on July 5, 2007, following his father’s admission to Suburban Hospital, and spoke to her about sending the blood test results two weeks after the results were reported. Tr. ECF No. 116 at 122-24, 126 (Plaintiff); Government Def.’s Exh. 13 at VA-223. Dr. Turner testified that she first learned of both Robert Bederson’s June 14, 2007 EGD procedure while he was taking Plavix and his June 17, 2007 hospitalization during this telephone call. Tr. ECF No. 113 at 57, 84. (Dr. Turner); Tr. ECF No. 112 at 82 (Dr. Turner).

10. In this conversation, Dr. Turner apologized to the plaintiff for “letting him down,” and noted her apology in Mr. Bederson’s VA medical record. Tr. ECF No. 113 at 57; Government Def.’s Exh. .13 at VA-223.

Possible Causes of Robert Bederson’s Hemorrhagic Shock and Heart Attack

11. Certain medical facts are undisputed about Robert Bederson’s condition on June 17, 2007, but the conclusions to be drawn from those medical facts about the cause of his heart attack and hemorrhagic shock differ among the medical experts. Among the pertinent medical facts are that, upon his admission to Suburban Hospital, on June 17, 2007:

a. Mr. Bederson had hypotension (low blood pressure) and his hemoglobin level was 6.4, a drop from the level of 9.1 shown bn his June 1, 2007 blood test. Tr. ECF No. 115 at 61 (Dr. Eisner); Tr. ECF No. 113 at 11 (Dr. Resar); Tr. ECF No. 117 at 38 (Dr. Manu).

b. In addition, he had dark or burgundy stools, which the experts agree were evidence of internal bleeding from the gastrointestinal tract since “acid contents in the upper part of the gastrointestinal tract ... turns the blood to black.” Tr. ECF No. 115 at 63-65 (Dr. Eisner) (on June 17, 2007, Mr. Bederson had “black stools,” which “was clearly evidence that he had had recent active bleeding from the gastrointestinal tract manifested by the black stools”); see also Tr. ECF No. 113 at 16 (Dr. Resar) (“when he presented he did have the dark tarry stools indicative of bleeding in the GI tract”); Tr. ECF No. 117 at 50-51 (Dr. Manu) (Mr. Bederson’s dark or burgundy stools indicated “[t]hat the stool contained blood” from the gastrointestinal tract).

12. Both Drs. Manu and Resar concluded that Mr. Bederson’s blood pressure reading and other vital signs taken at Holy Cross Hospital on June 14, 2007, the date of the EGD procedure, were not the type of readings suggestive of a patient who was actively bleeding. Tr. ECF No. 117 at 104 (Dr. Manu); Tr. ECF No. 113 at 18-20 (Dr. Resar). Yet, three days later, Mr. Bederson’s “acute drop in his hemoglobin” level showed a “sudden blood loss.” Tr. ECF No. 115 at 62 (Dr. Eisner).

13. The plaintiff alleges that his father’s hemorrhagic shock was caused by the ■ anemia that had been revealed by the June 1, 2007 blood test, which, together with the EGD procedure performed by Dr. Bakshi, put him in a condition where he did not have enough red blood cells (hemoglobin) “to maintain adequate circulation of life” and so he suffered “a near-death experience.” Findings & Conclusions ¶ 59 (quoting Tr. ECF No. 109 at 22 (Dr. David)). By contrast, the government defendant asserts that a low blood volume (or “severe hypovolemia”) caused by blood loss “resulting from the June 14, 2007 endoscopy procedure and not from any reasonably foreseeable condition revealed by the June 1, 2007 abnormal hemoglobin levels,” led to his myocardial infarction (heart attack). Id. ¶¶ 231-32. In other words, the parties apparently disagree about whether a low number of red blood cells or a low blood volume caused Mr. Bederson’s heart attack.

14. The government defendant’s medical experts, Drs. Resar and Manu, and even the plaintiffs medical expert, Dr. Eisner, discounted the fact that Mr. Bederson had chronic anemia, which was reflected in the June 1, 2007 blood test results, as a cause of his heart attack, pointing instead to his “recent acute or sudden blood loss.” Tr. ECF No. 115 at 62 (Dr. Eisner) (Q: “what, if any, significance to you is there that Robert Bederson’s hemoglobin went from 9.1 to 6.4 in terms of the cause of his admission and the problems at Suburban Hospital on June 17th of '07?” Dr. Eisner: “That he had a chronic anemia, but that this presentation was an acute drop in his hemoglobin from 9 to 6.”); Tr. ECF No. 117 at 48 (Dr. Manu