Kaiser loses ruling in death of newborn

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Kaiser loses ruling in death of newborn
ARBITRATION: An attorney says the doctor used standard procedures to treat
the birth defect.
12/28/2002
By DOUGLAS E. BEEMAN
THE PRESS-ENTERPRISE
 
A Murrieta couple has won a $1 million arbitration case against Kaiser Permanente stemming from the death of their newborn daughter nearly three years ago. An arbitrator ruled that the doctor who performed the surgery to repair a birth defect used poor judgment when complications arose after the operation.

Under California's law limiting general damages in medical liability cases, the award was reduced to $250,000.
The couple, Rachelle and Leon Phillips, say the award is small compensation for the loss of their child. More important, Rachelle Phillips said, is that Kaiser has been held responsible for its error that cost Renea Phillips her life.
 
Stan Lim/The Press-Enterprise
Rachelle and Leon Phillips, with their 22-month-old son, Shawn, are seen through stacks of documents from their case against Kaiser Permanente.
 
"When you make a mistake, when you're negligent, someone has to pay. I paid the ultimate cost," Rachelle Phillips said.
The surgeon involved, Dr. Hansen Wang of Kaiser's Fontana Medical Center, said through a spokesman that he wanted to express his "profound sorrow at the death of their child."

The arbitration award is now listed as part of Wang's state medical license file. The medical board is investigating the physician's actions.

Kaiser has lost 84 of the 228 arbitration cases that went to a hearing from 1999 through 2001. The average award was $207,571, according to the latest report available from the independent administrator of Kaiser's mandatory arbitration system. Awards ranged from $2,500 to $5.6 million, the report stated.

The Phillips case stems from a birth defect in which Renea's liver and part of her intestines developed outside her abdomen.

Repairing the defect

The birth defect was discovered during an ultrasound when Rachelle Phillips was five months pregnant. Kaiser transferred her case from its Riverside hospital to Fontana. Kaiser had surgeons there equipped to repair the defect, Phillips said she had been told.

Kaiser's doctors discussed possible treatment options, she said. If the defect proved minor, the doctors might be able to repair the infant's abdomen soon after birth. But if a large part of the baby's intestines and liver were showing, months of surgery might be needed to gradually cover the organs.

With either option, Phillips said, doctors predicted a long hospital stay for the baby.

Renea was delivered by Caesarean section on Jan. 13, 2000, at Kaiser's Fontana hospital. The baby's organs were functioning normally, Phillips said.

That evening, Renea underwent surgery to repair the defect. Afterward, an assistant surgeon told the family that the organs had been put in their place and the gap in the abdomen had been repaired, Phillips said.

"I remember feeling relieved, thinking, 'Oh, that was easier than I thought,' " Phillips said. "I was thinking, 'In a couple of hours I'll be able to see her and she'll be doing fine.' "

Something wrong

While Rachelle Phillips recuperated from the Caesarean, Leon Phillips monitored his daughter's recovery. He soon sensed something was wrong.

Renea wasn't urinating. Her heart rate and breathing were irregular. About three hours after the surgery, Leon Phillips noticed a bruise on one of her thighs. As the hours wore on, the bruise spread.

"That was the telltale sign -- any other surgeon would have opened her up because there was no blood getting to her leg," Rachelle Phillips said. "They kept telling us it was a bruise on her thigh from surgery."

Finally, an assistant surgeon told the family that the sutures would be undone to relieve pressure on Renea's organs. The surgery would take place at 5 p.m. Jan. 14, nearly 24 hours after the first operation.

After surgery, Renea's health continued to deteriorate. Early on Jan. 15, she was flown to UCLA's Mattel Children's Hospital. She died Jan. 16 of multi-organ failure.

A breach of duty

An arbitrator concluded that Kaiser waited too long to act after Renea's health began deteriorating.

The initial surgery had compressed her internal organs, arbitrator James J. Alfano's five-page report stated. He added that ". . . failing to act within a timely manner (to undo the surgery) ultimately caused her organs to fail and her demise."

Alfano's report, issued Oct. 23, concluded that Wang "failed to exercise reasonable diligence and good judgment" after the initial surgery, and that "a failure to act within a reasonable period of time to correct the serious condition is a breach of duty."

Dr. David Lerman, a Kaiser attorney who represented Wang in the Medical Board of California's investigation of the case, said Wang carefully analyzed the baby's birth defect and used standard techniques to repair it. When the baby's vital signs deteriorated after the surgery, Wang had to decide whether to risk a new surgery to undo the repair or wait to see if the problems resolved themselves.

"There's risk involved in either path you choose," Lerman said. "The path he chose turned out to have a horrible consequence for this child."
 

Judgment calls

Lerman said families expect physicians to always make the right judgment call in deciding how to treat a medical problem. Physicians strive to be right -- but they can't be right every time, he said.

"Sometimes those judgment calls are going to be wrong. Nobody's perfect every time. And sometimes it can have a bad outcome," he said. "We're very sorry when it happens."

Lerman said Wang feels "it's unfair to focus on this one case and not on all the other cases where he helped a child and whose parents are quite pleased with his care."

At the same time, Lerman said, "Dr. Wang feels terribly about what occurred. He's torn up over this."

Rachelle Phillips is unmoved. She believes Kaiser knew from the start that it had erred. And, she said, while UCLA doctors comforted the family, Kaiser never did. "They figured once they sent me to UCLA, I was UCLA's problem," she said.

Lerman said Wang might not have known about the death until months later.

Despite the passage of time, the wound remains raw for Phillips, a former middle-school teacher, and her husband, an auto mechanic at the Mitsubishi dealership in Temecula. They now have a 2-year-old boy, but Rachelle Phillips laments that he will never know his sister, never have an older sibling to play with and look up to.

Until the doctors at UCLA told Rachelle and Leon Phillips that their daughter was dying, "I just never even gave it a thought that my daughter wouldn't be coming home. I thought things like that don't happen to good people like me. I deserve my daughter."
 
Reach Douglas E. Beeman at (909) 368-9549 or dbeeman@pe.com