Kaiser Misdiagnosis Causes Death of Twin Fetuses; Hersh & Hersh Demands Arbitration to Compensate Father for Emotional Trauma & Loss

Kaiser Misdiagnosis Causes Death of Twin Fetuses; Hersh & Hersh Demands Arbitration to Compensate Father for Emotional Trauma & Loss
Gale Encyclopedia of Medicine, January, 2004

San Francisco plaintiff rights law firm Hersh & Hersh today announced that it is seeking arbitration on behalf of its client's dispute with California's largest HMO, Kaiser Permanente. The case involves the erroneous diagnosis and maltreatment of mother-to-be Jennifer Jewell, which resulted in the death of her and husband Robert Ferro's twin fetuses. Kaiser has offered to compensate Jewell for the loss of her twins but has refused to compensate husband Ferro for his loss. Hersh & Hersh contends that Ferro, as the biological father is entitled to compensation, and that California law recognizes Kaiser's legal duty to him as well as to his wife and twins.

"Our society now recognizes the advanced role, responsibilities and rights of the father during his wife's pregnancy, through childbirth and in raising the children," said Nancy Hersh of Hersh & Hersh. "Upon conception, the father is intimately involved in the mother's prenatal care, is emotionally vested in parenting, and is a direct beneficiary of the relationship between his wife and the OB-GYN.

"The father attends childbirth and parenting classes, accompanies the mother to doctors appointments and coaches his wife through labor in the delivery room. He is actively involved in making sure the mother is maintaining a healthy regimen. And following the birth of the children, the father is granted the right to take a paid leave of absence from work to care for his newborn under the Family Leave Act. Given his involvement in the childbearing process it is undisputed that an injury inflicted upon mother and fetus is also an injury to the father. Kaiser is trying to turn back the clock on advances in fatherhood by denying equal consideration to the father of the deceased twins. We believe this is a gross misjudgment and in conflict with the law."

Kaiser Physicians' Fatal Diagnosis Devastates Pregnant Parents

Earlier this year Robert Ferro and wife Jennifer Jewell, both Kaiser members, went to Kaiser San Francisco Emergency Room to confirm a possible pregnancy. The radiologist on duty performed an ultrasound and suspected that Jewell might have an ectopic tubal pregnancy, a condition in which the egg cannot pass through the Fallopian tube to the uterus and is implanted outside the womb. She referred Ferro and Jewell to Kaiser OB-GYN Dr. Susan Lee who confirmed the radiologist's diagnosis. Without demonstrating that there was threat of tubal rupture, Dr. Lee negligently directed the parents to use a drug to kill the fetuses and abort the pregnancy.

When Ferro and Jewell made a follow up visit to Kaiser several days later, they were seen by OB-GYN Dr. J. Lewis who performed another ultrasound and determined that Jewell's pregnancy was not ectopic and that she actually had been carrying live twins in her uterus. Tragically, the methotraxate had killed the twin fetuses and Jewell had to undergo surgery to remove the fetal remains. Ferro and Jewell subsequently filed a malpractice claim against Kaiser for its negligence. Kaiser offered to compensate Jewell, as the mother for the loss of her twins, but refused to compensate Ferro who was also a direct victim of Kaiser's negligence.

Andalon v. Superior Court, which became California law in 1984, involved a couple who sued a hospital for providing negligent prenatal treatment to the wife, resulting in the unwanted birth of a child with Down's Syndrome. The Court recognized that both parents were direct victims of the malpractice and ruled that each should be compensated. Likewise, Hersh & Hersh attorneys contend Kaiser's responsibility extends to Ferro who had significant interest in the healthcare provider's prenatal care of his wife and their unborn children, and should also be compensated.

Arbitration Vs. Judicial Court

Hersh & Hersh is representing Robert Ferro in arbitration because he is not entitled to a jury trial under Kaiser contractual requirements. Moreover, if the Kaiser-appointed arbitrator rules in favor of Kaiser there is no recourse to appeal the case.

Although Kaiser has revamped its arbitration process in recent years with the creation of the Office of Independent Administrator (OIA) to ensure fair hearings, there are still concerns about the HMO giant's arbitration practices. Kaiser employs more private arbitrators than any other organization in California. These are retired judges and lawyers who typically earn more from Kaiser arbitration cases than any other sources of income (Citizens for the Right to Know, June 2003). As much as Kaiser arbitrators strive to be fair there is the lingering worry over who is paying their salaries.

"Under California law, fathers have a cause of action in the loss of a fetus," added Hersh. "But because Kaiser arbitration doesn't have appellate oversight an arbitrator is free to disregard the law without recourse. This is a simple matter where an injury to mother and fetus is also a direct injury to the father, and the arbitrator should follow existing law."

About Hersh & Hersh

Hersh & Hersh is a San Francisco-based law firm dedicated to protecting the safety and rights of consumers. The law firm represents clients both on an individual level and in class and multi-district litigation, and has pursued and won a wide range of civil suits, from product liability, medical malpractice and insurance bad faith to sexual harassment and employee discrimination.

For the past 32 years, Hersh & Hersh has been committed to using the law to protect individuals by making sure companies exercise due diligence in manufacturing their products and operate in good faith in delivering their services.

Hersh & Hersh Press Contacts: Shelly Gordon 650/856-1607 sgordon@g2comm.com or Lisa Byrne 415/221-5018 lisa@lisabyrne.com