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L.A. formed an Elder Abuse Task Force. Well not much has been
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BBMON Bulletin
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We will be including within our Bulletin the monthly report of our Legal Developments Committee which is chaired by Ted O'Leary. That Committee's report has been distributed in-house for more than a year and we feel this information directed to our entire legal and paralegal staff should be shared with our clients. All portions of the Legal Development Report are attributed to sources. Users should personally evaluate the reliability of the sources cited.
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SOURCE: Los Angeles Times, August 1999
REPORTER: Tara Alpin
Kaiser Loses $20 Million In 2nd Quarter
7/31/99; C2
Kaiser Permanente Group has reported a second-quarter operating loss of $20 million, attributed to weakness at health plans it seeks to sell or close.
Hahn Vows to Investigate, Prosecute Abusers of Elderly
8/4/99; B4
Los Angeles City Attorney James Hahn has announced the formation of an Elder Crimes Unit to investigate and prosecute elder abuse. The unit is scheduled to begin operating next month. The city attorney’s office has also adopted a "no drop" policy for elder abuse, which means it will proceed with cases even when victims recant or are uncooperative.
House Negotiators Craft Consensus on Managed Care
8/6/99; A19
A bipartisan group of House lawmakers has announced agreement on a managed care bill that includes strong patients’ rights provisions, including a provision which would give patients the right to sue health plans under existing state negligence laws for denials of treatment which result in injuries or death. It appears all House Democrats will support the bill and at least 10 Republicans have already agreed to the measure.
Jury Awards $23.3 Million in Fen-Phen Case
8/7/99; A1
A woman who said her heart was damaged by the diet drug combination known as fen-phen was awarded $23.3 million in the first jury verdict against American Home Products. Already 3,100 lawsuits have been filed against the company nationwide and this win could lead to thousands of new cases. Just this week, jury selection began on a class action case involving several thousand patients who were not injured by fen-phen but must undergo medical exams for several years to make sure heart damage does not surface in the future.
Supervisor Seeks Power Over Legal Settlements
8/11/99; B6
Supervisor Todd Spitzer is proposing changing procedures in Orange County to require board approval for any large claims settlements. Currently, Orange County settles lawsuits without public notice or approval from the supervisors. Rather, the out of court settlements are ratified by a special committee made up of county officials.
Court Backs Medicare Enrollees’ HMO Suits
8/18/99; C2
The 4th Appellate District Court in Santa Ana has ruled that Medicare recipients may sue their HMO for punitive damages in state court for denying referrals, tests or certain treatment. The court further ruled that while federal law applies in many cases, consumers who wish to use the quicker state court process may do so in certain cases. Until this ruling, there had been no appellate decision on whether Medicare enrollees living in California could sue their HMOs in state court. (Ed. comment: Expect an appeal to the state Supreme Court.)
Davis Outlines Platform on HMO Reform
8/19/99; A3
Governor Davis has outlined what he would accept in new HMO regulation. Chief elements of the plan include a limited ability of patients to sue their HMO for punitive damages resulting from denial or delay of a doctor’s recommended treatment and a grievance procedure that would enable them to appeal disputed decisions to an outside panel of state-paid health care experts.
Rules on Reporting Settlements Against State Spark Conflict
8/22/99; A28
Governor Gray Davis used his line-item veto to delete legislator’s language in the new state budget which would have forced all departments to provide details on all settlements of $10,000 or more. Instead, he inserted language saying that state departments need only provide information on settlements of $400,000 or more. That policy has been in effect since July 1, the start of the fiscal year.
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Source: Los Angeles Daily Journal
Reporter: Bill Johnson
No Attorney Fee Recovery for Pro Per Party Seeking Sanctions
Argaman v. Ratan
C.A. 2nd
99 Daily Journal D.A.R. 7833
08/03/99
Argaman, an attorney, represented himself in an action against Ratan. Pursuant to a discovery motion which Argaman filed against Ratan, the Court ordered Ratan and his counsel of record to pay $500 in sanctions, based on Code of Civil Procedure §2030. Ratan filed an appeal, on the grounds that Argaman, as an in pro per, did not incur any attorney’s fee.
Held: Modified and affirmed. An attorney representing himself is not entitled to recover reasonable attorney fees as compensation for the time and effort he expends on his own behalf. The $500 sanctions award was reduced to $24, for filing fees and copying costs.
Statute of Limitations - Tolling based on suspension of corporate status
Grell v. Laci Le Beau Corp.
C.A. 1st
99 Daily Journal D.A.R. 7993
08/06/99
Held: The purpose of the statute of limitations is to protect defendants from having to defend outdated claims, by providing notice in a timely manner to allow defendants to prepare a fair defense based on the merits. As such, the statute of limitations in a personal injury action is not tolled simply because a corporation is suspended for failure to pay taxes. This, alone, does not constitute a condition under which it is impossible to commence or pursue the action.
Offset of Damages
Ehret v. Congoleum Corp.
C.A. 2nd
99 Daily Journal D.A.R. 8019
08/06/99
In an asbestos products liability action, all defendants settled with plaintiff except for Congoleum. The jury assigned 25% fault to Congoleum, and 12.5% fault to each of the settling manufacturers. Defendant moved to vacate or modify the judgment, contending that its liability for noneconomic damages should be limited to its percentage of fault, pursuant to Civil Code §1431.2. It was further requested that the award for economic damages be reduced by the portion of the settlements. The trial court declined to do so. Defendant appealed.
Held: Reversed and remanded. Section 1431.2, enacted as part of Proposition 51, provides that the liability of each defendant for noneconomic damages is several, not joint, and each defendant is liable for only that defendant’s percentage of fault. Accordingly, as set forth in Section 1431.2 and Code of Civil Procedure §877, only economic damages may be used as an offset. In this case, where the settlements did not distinguish between economic and noneconomic damages, in determining the percentage of the settlements to be offset, the percentage reflected in the jury verdict should have been applied.
Attorneys: No obligation to prior or co-counsel if inconsistent with attorney-client relationship
Saunders v. Weisberg & Aronson
C.A. 2nd
99 Daily Journal D.A.R. 8125
08/11/99
Held: One of the fundamental aspects of the attorney-client relationship is the attorney’s undivided loyalty to the client. It would be inconsistent with an attorney’s duty to exercise independent professional judgment on behalf of his client to impose an obligation to require an attorney to take into account the interests of predecessor attorneys or co-counsel. To hold contrary would only serve to dilute an attorney’s duty to the client.
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SOURCE: Los Angeles Daily Journal
REPORTER: Laura McFeaters
First District Court of Appeals Allows Tort Victims to Recover "Lost Years Damages"
Overly v. Ingalls Shipbuilding, Inc.
California Court of Appeal, First District
99 Daily Journal D.A.R. 8325
08/16/99
Plaintiffs sued Ingalls Shipbuilding, Inc. for personal injuries and loss of consortium from Robert Overly’s exposure to asbestos. Plaintiffs introduced evidence regarding "lost years damages" for the period by which his life expectancy was shortened, including pension, social security, and household services benefits. A jury awarded plaintiffs economic and noneconomic damages, including loss of consortium.
Held: Affirmed. Tort victims can recover for prospective earnings for the balance of their life expectancy at the time of the injury, undiminished by any shortening of that expectancy as a result of the injury. Also, recovery of future years damages should not be reduced by a projected personal consumption amount. Though plaintiffs also have a potential separate wrongful death claim, there is no risk of double recovery for future damages because a setoff may be made in the separate wrongful death case.
(Editor’s Note: This case may be overturned if appealed to the California Supreme Court.)
Civil Procedure - Employment Law - Medical Provider’s Claims That Cannot Be Asserted By Provider’s Patients Are Not Preempted by ERISA
Blue Cross of California v. Anesthesia Care Associates
United States Court of Appeal, Ninth Circuit
99 Daily Journal D.A.R. 8979
08/30/99
Four medical providers participated in the Prudent Buyer’s Plan, a medical care plan of Blue Cross of California, whereby the providers and Blue Cross entered in to a participating physician agreement containing fee schedules and an arbitration clause. Under the plan, the providers sent bills for medical services directly to Blue Cross, bypassing the patient. Each provider had patients who were enrolled in the health plan as part of a health benefit package covered by ERISA. A dispute arose between the providers and Blue Cross concerning fee schedules. The provider’s sought a consolidated arbitration proceeding to resolve the matter, but Blue Cross would only agree to separate actions with each provider. Blue Cross filed petition to compel arbitration of the dispute, asserting jurisdiction under ERISA and the Federal Arbitration Act. Thereafter, the providers filed a class action against Blue Cross in state court. Blue Cross removed the class action to the district court, which remanded the class action back to state court, dismissing Blue Cross’ petition to compel arbitration.
Held: Affirmed. The provider’s claims arose out of the physician participation agreement between the providers and Blue Cross. Despite the fact that the patients of the ERISA covered plans assigned their rights to reimbursement to the medical providers, the patients were not part of the participating physician agreement and therefore could not assert rights under it. Additionally, the provider’s claims did not have a sufficient economic impact on ERISA plans to trigger ERISA preemption.
Thirty-day Period to File For Trial De Novo Following Arbitrator’s Award Does Not Begin to Run Until Proper Service By Arbitrator
Domingo v. Los Angeles County Metropolitan Transportation Authority
California Court of Appeal, Second District
99 Daily Journal D.A.R. 8791
8/26/99
The defendant did not receive notice of the arbitrator’s award until more than 30-days post filing of the award by the arbitrator. When the defendant’s attorneys learned of the arbitrator’s award, they promptly filed a request for trial de novo. The trial court entered the arbitrator’s award as its judgment and denied the defendant’s motion to set aside the judgment.
Held: Reversed. According to Code of Civil Procedure Section 1141.20(a) "an arbitration award shall be final unless a request for trial de novo is filed within 30 days after the arbitrator files the award." The Second District interpreted this language to mean that when an arbitrator’s award is improperly served, the 30-day filing period for a trial de novo request does not begin until the party has received actual notice of the arbitrator’s award.
Where Medicare and Non-Medicare Tort Claims Are Interwoven With Other Causes of Action, State Court Not Necessarily Deprived of Jurisdiction to Hear Claims
McCall v. Pacificare of California, Inc.
California Court of Appeal, Second District
99 Daily Journal D.A.R. 8479
8/19/99
The plaintiff sued his HMO for negligence, intentional infliction of emotional distress, unfair business practice and fraud. Plaintiff suffered from progressive lung disease and his HMO refused to provide him with a specialist for a lung transplant procedure. As a result, his condition worsened. The HMO argued that the plaintiff’s claim fell under the Medicare Act and should have been brought in federal court. The trial court found that the plaintiff’s claims arose under the Medicare Act and therefore dismissed those claims without giving the plaintiff an opportunity to amend his complaint.
Held: Reversed. Whether claims fall within the purview of the Medicare Act depends on the substance of the claims. State law claims brought against an HMO may proceed in state court even if the state law claim is based on denial of Medicare benefits; while the reimbursement expenses may not be recoverable in state court, the inclusion of such damages did not deprive the state court of jurisdiction. Apart from seeking payment for medical expenses, plaintiff was seeking compensation for his worsened condition and there is nothing in the Medicare Act that suggests this type of remedy was not available in state court.
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SUBJECT/SOURCE: Legal Journals (Los Angeles Lawyer, California Lawyer, ABA Journal, Verdict)
REPORTER: Frank A. Alfonso
Subject: Application of Bad Faith Lawsuits to HMOs.
Source: Cost & Quality, June 1999
In January 1999, in the case of Goodrich v. Aetna, a California jury returned a record-breaking verdict of $120.5 million in favor of a widow as a result of Aetna’s failure to act in good faith in the treatment of her terminally ill husband. This article discusses the history and basis of this kind of lawsuit, major decisions specifically pertaining to HMOs, and the outlook for future liability in this area.
Many state courts have recognized that the tort of bad faith breach of contract could be brought against health insurance companies who fail to provide the insured with "the benefit of the bargain." Courts have recognized an implicit provision in every insurance contract that neither party will do anything to injure the right of the other party to receive the full benefits of the contract. The rationale behind this implicit provision derives from the unequal bargaining power between the insurance company, the vital nature of the service provided by the insurance company and the insured, the quasi-fiduciary duty of the insurance company, and the vulnerability of the insured.
There have been very few cases against HMOs which have reached judicial review. However, recently the Wisconsin Supreme Court has explicitly stated that the tort of bad faith is applicable to HMOs, not just for denial of claims but also for denial of care. In McEvoy v. Group Health Cooperative, The Wisconsin Supreme Court held that the common law tort of bad faith applied to HMOs making out-of-network decisions and the state medical malpractice law did not preclude a bad faith claim.
Subject: The Efficacy of The Jury System. (Excerpt from the amicus curiae brief filed in Kuhmo Tire Company, Ltd. v. Carmichael, in the Supreme Court of the United States, to provide the Court with an accurate picture of what research says about jury competence and behavior as it pertains to the evaluation of expert testimony.) Brief was filed by 17 university professors who conducted empirical research on juries.
Source: Voir Dire, Summer1999
The predominant conclusion of the extensive research is that juries do their job competently and conscientiously and without a general bias against corporate defendants. Overall, judges
overwhelmingly view juries as competent and conscientious. A series of experimental studies also found no support for the view that juries are hostile to corporate defendants, doctors, or entities with deep pockets.
A common claim is that jury trials are inappropriate for malpractice cases because the legal issue revolves around the standard of medical care and ordinarily results in a "battle of experts" testifying about esoteric medical issues. Jury critics have asserted that because juries cannot understand the evidence and also have unwarranted sympathies for injured plaintiffs, juries decide cases differently than medical experts would decide them. The brief cites to studies which found that the jury verdicts were generally consistent with the evaluations of negligence made by the insurer’s medical experts. Moreover, there was no relationship between the seriousness of injury suffered by the plaintiff and a finding of liability, suggesting juries did not decide cases out of sympathy.
Editor’s note: If this is true, then "exceptions to the rule" must be frequent.
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SOURCE: Settlements and Verdicts (August 1999)
REPORTER: Morris Stern
Medical Malpractice/Negligent Connection Of Feeding Tube Resulting In Breast Milk Being Infused Into Baby's Blood Stream - $7,175,000 Settlement
Case Name Confidential (April 20, 1999)
King Superior Court (Washington)
At birth, minor plaintiff had difficulty feeding, and was unable to suck or swallow. Plaintiff had a seizure shortly after birth. An EEG was performed which was abnormal. About 10 days later a feeding tube was placed through the abdominal wall, allowing the child to receive breast milk and other nutrients directly into the intestinal tract. During a visit by the parents, the feeding tube was disconnected. Upon the baby's return, a temporary float nurse was directed to reattach the feeding tube. Instead of attaching the breast milk adapter to the feeding tube, she attached it to the central line resulting in breast milk being infused into the baby's blood stream. Milk emboli blocked the blood flow to numerous portions of the brain causing the child to go into a coma. The child remained in critical condition, then recovered and was discharged about a month after the incident. Post-discharge, the child remained with significant suck and swallow deficit. Post-incident CT scans revealed some level of paraplegia and a cognitive deficit appeared to be present.
Medical Malpractice/Failure To Provide Safe Environment Resulting In Fall In A Hospital Facility - Defense Verdict
Gray et al. v. Good Sumaritan Hospital et al. (July 6, 1999)
Los Angeles Superior Court - Central, Honorable Judith C. Chirlin
Following cardiac bypass surgery, plaintiff (79 years old) was hospitalized in the Cardiovascular Definitive Observation Unit. Several days after surgery, the registry nurse assigned to plaintiff found him out of bed with a nurse aid assisting him to urinate into the bedside urinal. After plaintiff was finished, the registry nurse and nurse aide assisted plaintiff back into the bed. Plaintiff subsequently sat up in the bed and indicated that he had to have a bowel movement. Before the nurse and the aide had an opportunity to assist the plaintiff, he stood up, became dizzy and fell head first into the wall and floor of the room breaking his neck at C2. Plaintiffs contended that the nursing staff did not provide a safe environment considering plaintiff's post-operative condition and fell below the standard of care by allowing him to fall in the room. Defendants contended that plaintiff's fall was an unavoidable accident.
Plaintiff attorney: Vincent L. Goodwin, Kathleen Wynen
Defendant attorney: Robert B. Packer (La Follette, Johnson, DeHaas, Fesler & Ames); C. Snyder Patin (O'Flaherty, Cross, Martinez, Ovando & Hatton
Medical Malpractice/Negligent Removal of Right Kidney - $150,000 Settlement
Case Name Confidential (July 19, 1999)
Los Angeles Superior Court - Pomona, Honorable Roy L. Norman
Because of the recurrence of a hematuria condition, defendant planned an ultrasound of the kidney and a cystoscopy when bleeding. The ultrasound revealed right hydronephrosis and bilateral adnexal masses and uterine enlargement (collection of urine in pelvis resulting in distention and apparent masses in the ureter and bladder) which was confirmed by a cystoscopy, a right retrograde pyelogram and a right urethroscopy. The plan was to examine the right ureter and remove the obstruction. Several days later, plaintiff complained of pressure and burning after urination. Defendant performed an exploration of the right ureter. Contrary to the results of the renal functioning test, the operative report states that the indications for the procedure included the fact that the kidney was functioning poorly. During the procedure, defendant claimed that the entire right ureter was obstructed by endometriosis and a nephro uterectomy was performed. The pathology report did not support the diagnosis. Plaintiff contended that the defendant was negligent in the removal of the right kidney, which was known to be functional. Defendant contended that he exercised reasonable surgical judgment in the removal of the kidney and the right ureter could not be salvaged.
Medical Malpractice/Delay in Diagnosis of Retinopathy of Prematurity Resulting in Irreversible Blindness- $1,175,000 Settlement
Case Name Confidential (January 4, 1999)
Orange Superior Court
Plaintiff's mother went into active labor during the 26th week of pregnancy. As a result of being premature and having an extremely low birth weight (900 grams), plaintiff was transferred to the NICU where he stayed for 6 weeks. At the time of discharge, plaintiff had already developed the very early status of Retinopathy of prematurity (ROP), which went undiagnosed. (ROP is a disease which affects the formation of retinal blood vessels in the premature infant's retina). After several unsuccessful eye surgeries, minor plaintiff suffered retinal detachment in both eyes and was left totally and irreversibly blind. Plaintiff contended that defendant pediatric ophthalmologist knew or should have known that the child was at high risk for the development of ROP because of prematurity and low birth weight; defendant was negligent in that the child was allowed to go approximately 6 weeks without a follow-up examination, at which time plaintiff was noted to have at least Stage 3 threshold disease; and that had the child been seen for examination when he should have been seen, surgical intervention would have left the child with functional vision. Defendant contended that the time period recommended for the examinations were within the standard of care and that the failure of plaintiff child to be seen sooner occurred as a result of the parents' failure to schedule the appointment as advised by the discharging neonatologist.
Medical Malpractice/Failure to Timely Detect and Treat Bowel Obstruction Resulting in Septic Shock - Defense Verdict
McCarthy v. Lokietz, M.D. et al. (May 13, 1999)
Los Angeles Superior Court - Pasadena, Honorable Judson W. Morris, Jr.
On 12/31/95, the child developed "flu-like" symptoms, principally malaise, vomiting and poor intake. On 1/1/96, the patient's mother called defendant 2 who was on-call for defendant 1, the child's regular pediatrician, and told him that the child had a fever of 102 degrees and had intermittent vomiting. Defendant 2 suggested the administration of medication and instructed the mother to call back if the child's temperature went as high as 105 degrees. No further calls were made. On 1/2/96, plaintiff took the child to defendant 1's office. Defendant 1 ordered an abdominal ultrasound which demonstrated hi-grade bowel obstruction. The child became ill and lethargic and went to the ER where the initial heart beat was registered at 248 and the diagnosis of probable septic shock with severe dehydration was made. The child went into full cardiorespiratory arrest and died shortly thereafter. Plaintiff alleged that the child died of severe dehydration and hypovolemia arising from a bowel obstruction which defendant 1 failed to detect and immediately treat with aggressive fluid resuscitation and that defendant 2 should have sent the child to the ER immediately where the correct diagnosis would have been made. Defendants contended that the child did not die due to complications of dehydration, but rather died as a result of overwhelming sepsis which most likely was subacute and not clearly diagnosable and there was no reason to believe that the child should have been sent to the ER immediately.
Medical Malpractice/Negligent Birth (Delay in Placement of Electronic Fetal Monitoring Resulting in Spastic Quadra Paresis - $11,700,000 Settlement
Case Name Confidential (April 15, 1999)
Orange Superior Court
Plaintiff (39 years old) was in the 35th week gestation of a twin pregnancy. On July 31, 1996, at 12:00 p.m., plaintiff began experiencing low back pain. At 6:30 p.m., she noticed vaginal bleeding and went to the ER. An ER nurse obtained normal heart beats for both fetuses. An ER doctor wrote an order sending the patient to labor and delivery at 7:10 p.m. for stat ultrasound. Plaintiff arrived in labor and delivery at 7:20 p.m. The labor and delivery nurses attempted to begin electronic fetal monitoring on the patient, but the ultrasound technician insisted that the ultrasound proceed first. At 7:30 p.m., an OB arrived at the hospital and allowed the ultrasound to go on for 30 minutes. At 8:00 p.m., the OB ordered the ultrasound stopped and ordered electronic fetal monitors placed. At 8:08 p.m., the electronic fetal monitors were placed and within minutes showed that twin A was in fetal distress, suffering from large decelerations; twin B's heart rate could not be located . At 8:15 p.m., the OB ordered an emergency C-section. At birth, twin B's Apgar scores were 0, 1 and 4. Twin B suffered a severe hypoxic ischemic insult with resulting spastic quadra paresis. Plaintiff contended that the hospital fell below the standard of care by allowing the ultrasound to proceed before first establishing fetal well-being by use of the electronic fetal monitoring and that the delay of 38 minutes of placing the fetal monitors caused plaintiff baby to suffer severe brain damage. Defendant hospital contended that the order for the stat ultrasound superseded the routine orders for fetal monitoring and that the delay of only 38 minutes in placing the fetal monitors did not cause any injury to the plaintiffs.
Medical Malpractice/Negligent Dilatation Procedure Resulting in Peritonitis and Sepsis - Defense Award
O'Neill v. Kaiser et al. (April 21, 1999)
Binding Arbitration, Thomas Nuss (ret.)
Decedent was treating with defendant hospital for chronic pyloric stenosis. She underwent a series of three balloon dilatation procedures performed by defendant doctor. During the third procedure, a perforation occurred which went undiagnosed for approximately 12 hours. Decedent presented to the emergency room that morning and underwent open pyloroplasty. She ultimately died as a result of peritonitis and sepsis secondary to the perforation.
Plaintiff attorney: Jack Hull (Goldsmith & Burns)
Defendant attorney: Brian L. Hoffman (Bonne, Bridges, Mueller, O'Keefe & Nichols
Medical Malpractice/Failure to Diagnose Arterial Stenosis - Defense Award
Case Name Confidential (July 14, 1999)
Binding Arbitration, Peter Smith (ret.)
Plaintiff (33 year old) presented to defendant internist for an initial consultation complaining of chest and shoulder pain. Although plaintiff had a family history of early coronary heart disease, his complaints were atypical for angina. Plaintiff was diagnosed with hyperlipidemia. Seventy-two days later, plaintiff suffered a heart attack with a 100% occlusion of the left anterior descending. Eighty-one days later, an angiogram was performed due to continuing complaints which found blockage. The arbitrator held that defendant's failure to refer or follow-up with a treadmill test was below the standard of care. However, the arbitrator ruled in favor of the defendant on the issue of causation based on expert testimony that established that had a referral been made, plaintiff would have received a non-nuclear stress test which had "no greater than a 50/50 chance" of a diagnosis of stenosis based on decedent's atypical symptoms.
Plaintiff attorney: William Brenner
Defendant attorney: Kippy Wroten (Bonne, Bridges, Mueller, O'Keefe & Nichols)
Medical Malpractice/Failure to Administer Antibiotics Resulting In Development
of Sepsis - Defense Verdict
Rubanowitz v. Buyalos (August 16, 1999)
Los Angeles Superior Court - Santa Monica, Judge Robert Altman
In July, 1995 decedent (11 years old) and her mother consulted with defendant doctor for treatment of a congenital, transverse vaginal septum, which resulted in blockage of the out flow track from the uterus through the vagina after the decedent began her menses, resulting in hematometra. Surgical repair was undertaken on 7/27/95, which involved the placement of an indwelling, malecot catheter, extending from the vagina to the uterus, to maintain patency. In September, 1995 the patient was prescribed Provera, for an ovulation, to stimulate a normal menstrual period. On 10/11/95 the child presented to the ER complaining of severe abdominal pain. On 10/12/95, the catheter was removed under anesthesia. On 10/13/95, decedent presented to defendant doctor's office complaining of a high fever. The patient developed overwhelming sepsis and a uterine infection was diagnosed. Decedent's mother refused a laparotomy the next day. Even though a hysterectomy was performed on 10/18/95, the child continued to have sepsis, with her extremities becoming gangrenous. She died on 11/14/95. Plaintiff contended that defendant should have used antibiotics when placing the malecot catheter; should not have administered Provera which caused further bleeding thereby increasing the chances of an infection; and failed to timely diagnose and treat the infection. Defendants contended that there was no evidence of infection up to the afternoon of 10/13/95, and therefore none of the tests or antibiotics claimed to be necessary by plaintiff were indicated or required by the standard of care. Defendants further contended that a hysterectomy on 10/14/95 would have saved the child’s life, and that the hysterectomy was not performed on that date because of the mother’s refusal.
Plaintiff attorney: Brian Witzer, Ronald Odom (Law Offices of Brian Witzer)
Defendant attorney: N. Denise Taylor (Bonne, Bridges, Mueller, O'Keefe & Nichols)
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SUBJECT/SOURCE: Settlements and Verdicts (August 1999)
REPORTER: Staci L. Meinzer
Medical Malpractice/ Doctors Failed to Recognize Child Abuse from Emergency Room X-rays - $217,500.00 Settlement
Case name confidential (May 5, 1999)
Riverside Superior Court; Judge Charles D. Field
Plaintiff-mother took her six-week-old baby to the emergency room because it seemed as if something was broken in his back. An x-ray was taken and defendant-emergency room physician diagnosed a congenital anomaly. The next morning, a radiologist reviewed the x-ray and made the same diagnosis. The mother was told to take her baby to a pediatrician and to give him antibiotics. A pediatrician examined the baby and found no signs of abuse. Two weeks later, the baby had a seizure and was taken to the emergency room where he arrested. A CT scan showed subdural hematomas and he was transferred to another medical center and diagnosed with shaken baby syndrome. The baby suffered brain damage. His father later pled guilty to child abuse. Plaintiff contended that the defendant-emergency room physician and radiologist were negligent since they did not recognize the signs of child abuse when the baby was first brought to the emergency room. Defendants contended that the original films did not show posterior rib fractures.
Medical Malpractice/ Vaginal Delivery Causes Decreased Life Expectancy- $1,500,000.00 Settlement
Case name confidential (March 16, 1999)
Los Angeles Superior Court, Central; Judge Aurelio N. Munoz
Plaintiff-mother received prenatal care from doctor at defendant-medical clinic. Although the prenatal care was uneventful, a macrosomic baby (birth size over 9.9 pounds) was anticipated. When the doctor attempted vaginal delivery, plaintiff-baby became impacted in the vaginal canal after the delivery of the head. The umbilical cord was wrapped around the baby’s neck and the cord snapped. The baby was delivered not breathing. His life expectancy is 30 to 40 years. Plaintiffs contended that a vaginal delivery should not have been attempted. Defendants contended that plaintiff previously delivered two babies in the 10-11 pound range and a vaginal delivery was appropriate. They also contended that the mother did not want a Caesarian section.
Plaintiffs’ attorneys: Gary A. Dordick (Law Offices of Gary A. Dordick, Beverly Hills); Harry O. Schenk (Law Offices of Harry O. Schenk, Beverly Hills)
Defendants’ attorneys: Douglas DeHaas, Jay B. Lake (La Follette, Johnson, De Haas, Fesler & Ames, Los Angeles)
Medical Malpractice/ 11-year-old Dies from Untreated Prolonged QT Syndrome (Arrhythmia)- $225,000.00 Settlement
Case name confidential (May 5, 1999)
Case not filed.
In 1993, 11-year-old-decedent fainted while playing softball. A neurologist from defendant-health plan diagnosed heat stroke. In 1994, she complained of severe headaches, nausea, and dizziness. In 1995, she began having near fainting spells and an ECG suggested that she may have an abnormal condition that has been associated with sudden death. No further testing or treatment was ordered. Two years later, decedent fainted and stopped breathing while playing baseball. She never regained consciousness and died three days later. Claimants contended that it was below the standard of care for respondents to ignore the diagnosis of prolonged QT syndrome (arrhythmia). Respondents contended that they complied with the standard of care.
Claimants’ attorney: Christopher J. Day (Day & Day, Tustin)
Respondents’ attorneys: Christopher B. Marshall, Kevin F. Greer (Bonne, Bridges, Mueller, O’Keefe & Nichols, Riverside)
Medical Malpractice/ Cervical Spine Fracture from Chiropractic Manipulation; Delayed Diagnosis of Cervical Spine Fracture- Defense Verdict
Jacob Alvarez, Sr. and Guadalupe Alvarez v. HealthCare Partners Medical Group, Sarah Hwang, M.D., and Patrick Wilber, D.C. (July 27, 1999)
Los Angeles Superior Court, Pasadena; Judge Coleman A. Swart
74-year-old plaintiff complained of a cervical sprain after falling down a flight of stairs while carrying a refrigerator. He alleged that defendant-chiropractor fractured the odontoid process at C1-C2 when he performed chiropractic manipulation on plaintiff. Plaintiff also alleged that defendant-rheumatologist failed to diagnose the fracture after the chiropractic manipulation. Defendants contended that there was a preexisting fracture, even though x-rays taken before the chiropractic manipulation did not show a fracture.
Plaintiffs’ attorney: Marvin Shebby
Defendants’ attorney: Yuk K. Law (Bonne, Bridges, Mueller, O’Keefe & Nichols, Los Angeles)
Medical Malpractice/ Delayed Diagnosis of Vulvar Cancer- Defense Award
Benton v. Kaiser, et al. (April 6, 1999)
Binding arbitration: Judge Burton Bach, neutral; Sol Goldberg, claimant’s party arbitrator; Ken Zeutel, respondent’s party arbitrator
For three years, plaintiff complained of urinary tract symptoms. During this time, she did not receive any pelvic examinations. In May 1996, she complained of vaginal burning, and obtained an OB/GYN consult which revealed vulvar cancer. She underwent a radical vulvectomy which revealed positive lymph nodes. After excision, she underwent six months of intensive radiation therapy resulting in burns and disfigurement.
Claimant’s attorney: Bradley Gage (Goldberg & Gage)
Respondents’ attorney: Brian L. Hoffman (Bonne, Bridges, Mueller, O’Keefe & Nichols, Los Angeles)
Medical Malpractice/ Delayed Diagnosis of Dislocated Femoral Component Following Right Total Hip Replacement - Defense Award
Akopyan v. Kaiser, et al. (April 21, 1999)
Binding arbitration: Judge Robert Fratianne, neutral; Lewis Alia, claimant’s party arbitrator; Kathryn Moseley, respondent’s party arbitrator
Claimant underwent right total hip replacement in November 1996. She subsequently engaged in a series of home health physical therapy sessions and outpatient physical therapy sessions at Kaiser. Her progress was poor due to weakness in her abductors and adductors. She became addicted to pain medication. At her first post-operative visit, she complained of pain and discomfort. No post-operative x-rays were taken. At her second post-operative visit, she complained of poor progress, pain, and limb length discrepancy. An x-ray revealed a dislocated femoral component. She underwent a failed closed reduction and an open reduction. Claimant contended that the dislocation had been present for an excess of three months and it could have been traced to her failure to progress with physical therapy.
Claimant’s attorney: Robert Brooks (Moore, Sorenson & Horner)
Respondents’ attorney: Brian L. Hoffman (Bonne, Bridges, Mueller, O’Keefe & Nichols, Los Angeles)