TRAGEDY AND TRAVESTY AT KAISER HOSPITAL by Dr. Nayvin Gordon

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On 3/12/01 I rushed my twenty year old daughter to the Kaiser Hospital Emergency Department in Oakland. She had been suffering from a severe headache for three days when she began to have difficulty talking and became disoriented. I was concerned that she might have encephalitis (a brain infection) and I voiced my concern to the hospital staff. All of this is documented in the hospital records. She was given a spinal tap, and the spinal fluid was abnormal with an elevated white cell count, consistent with a viral infection. Every Medical Textbook states clearly and unequivocally that in BOTH viral meningitis (a relatively benign infection) and viral encephalitis (a severe and potentially deadly infection) the spinal fluid shows the same elevation of white cells. The texts also clearly state that if a patient has an abnormal spinal fluid consistent with a viral infection and ALSO has altered consciousness or difficulty speaking the patient should be suspected to have Herpes encephalitis (a potentially devastating infection), and

“should be admitted to the hospital for supportive therapy and intravenous acyclovir(anti viral medicine)” Quote from Harrison’s Principles of Internal Medicine 1998 Edition.

But Kaiser sent my daughter home with a diagnosis of viral meningitis, telling her that nothing could be done. She was not seen by an Infectious disease specialist. On 3/15/01, after three more days of headache, my daughter had a seizure and was rushed back to Kaiser Emergency department. Spinal fluid was still abnormal and she was admitted to the intensive care and treated for Herpes Encephalitis.

After a week in intensive care my daughter was discharged home with significant brain damage. She was forced to drop out of San Francisco State University, due to her cognitive loss. She has been receiving cognitive therapy ever since. She was slowly able to resume her studies but only at a reduced load. Some four years later she finished her junior year. It may take her another two years to finally finish her degree at SFSU. My daughter’s brain and personality were damaged by Kaiser Hospital’s failure to diagnose and treat her when she first presented to the Emergency Room.

I decided to file complaints and to sue for the following reasons. First I needed to obtain funds to help with a prolonged education and therapy for my daughter. Second I wanted to create standards for all patients with abnormal spinal fluid who are seen at Kaiser. I believe it should be MANDATORY for all patients with abnormal spinal fluids be seen by an infectious disease consultant before discharge from an emergency department.

First I wrote to The Department of Health Services, State of California. They concluded 6/19/03, that “the hospital failed to exercise prudent care and judgment, and failed to mobilize the available resources such as experienced neurology consultant to hospitalize the patient.” The final HCFA 2567 report asked for Kaiser to submit a plan of correction. Kaiser wrote back that they have a peer review committee. The Department of Health Services has no power of enforcement. Next I wrote to Kaiser Hospital and Health plan. They rejected my requests. Saying their peer review committee said that the care given my daughter was appropriate. Then I wrote to the California Department of Managed Care who wrote that Kaiser has a peer review process and they were fulfilling there obligations under the law. Furthermore the Department of Managed Health care lacks the authority to determine liability or impose penalties against individual providers. They referred me to the Medical Board of California. I finally went to the Medical Board of California. After almost nine months of investigating they called me on the phone on 3/29/05 and said the case is being closed for “insufficient evidence”. No letter, no report. The last, and final avenue open to me was to take a personal suit against Kaiser. A personal injury suit may win a financial settlement but it can have NO effect on the STANDARDS of care at Kaiser. We then went ahead with the suit, for failure to diagnose and treat. Kaiser has a mandatory arbitration process. This process is outside the laws of the courtroom and there is virtually no appeal. Furthermore in 80% of the cases the patient loses and is then responsible for the fees, in our case $32,000. As physicians, we are interested in the scientific truth; unfortunately I learned that “a trial is not a search for the truth. It is a contest,” so writes Andrew Vachss, in the New York Times Op –Ed on 6/15/05. My daughter and I can confirm this truth that arbitration is only about winning. Thus the very nature of the procedure encourages distortion, manipulation, omission, obfuscation, selective and arbitrary use of evidence and most dangerous of all, perjury. In my daughters case the perjury of the expert witness was blatant. The arbitrator made his decision relying heavily on perjured testimony. In his final letter of June 2, 2005, The Arbitrator who ruled against my daughter and in favor of Kaiser wrote, “ the entire weight of the evidence in the hearing only supported a conclusion that the encephalitis is usually marked by A LOW WHITE BLOOD CELL COUNT IN THE SPINAL FLUID.” This conclusion contradicts medical knowledge and every text book for greater than 30 years. When the arbitrator was alerted to this false testimony, he ignored the issue of perjury and confirmed his conclusion. The police department refused to take this issue to the district attorney’s office, but wished me “good luck”. Thus perjury and false testimony continue to work against the patients, and the arbitrator can decide with all his pomp and arrogance that two plus two is five.

We all should have an interest in establishing the truth. The Medical Licensing Boards must unite with the specialty medical boards to provide a list of certified expert medical witness to be used for any deposition, arbitration or court case. These witnesses must agree in writing to have their deposition and testimony reviewed and if found to be false they are to lose their medical license.

How many more patients will be denied medical care at Kaiser before mandatory safeguards are in place in the Emergency Department.?? How many more patients will be denied a financial settlement due to false testimony?? How many more physicians will be able to commit perjury as hired guns for an HMO with impunity??