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CASE TYPE:  Medical Malpractice/Wrongful Birth

RESULT:  $1,100,000 arbitration award

COUNTY:  Los Angeles 

CASE NO:  Arbitration

CASE NAME:  Nichols vs. Kaiser

PLAINTIFF ATTORNEY: John P. Blumberg, Esq. and Nancy G. Wanski, Esq. of Blumberg Law Corporation, Long Beach

DEFENSE ATTORNEYS:  Laura Sitar of Bonne, Bridges, Mueller, O’Keefe and Nichols, Santa Ana

PLAINTIFFS’ EXPERTS:  Charles Ballard, M.D. (Los Angeles) OB/GYN Donna Barras, M.D. (Buena Park) Pediatric Rehab Rachelle Tyler, M.D. (Los Angeles) Developmental Pediatrician  David Fractor, Ph.D. (Pasadena) Economist

DEFENDANTS’ EXPERTS: William Frumovitz, M.D. (Santa Monica) OB/GYN  Paul Schultz, M.D. (San Diego) Pediatric Neuro Ted Vavoulis (Pasadena) Economist

 FACTS:  Plaintiff had six children. She and her husband decided not to have more children and plaintiff made plans to undergo a tubal ligation.  On June 4, 2001, a nurse practitioner drew blood for a pregnancy test. The test was analyzed and printed by the lab the next day, and showed that plaintiff was pregnant. At this time, she was at 10 weeks gestation.  However, she was never notified of the result and the lab report was never placed in the chart.  She called for results but was told that the results were not ready. She assumed that the test was nega­tive when she didn’t hear to the contrary. On June 27, 2001, plaintiff was seen by Dr. Karen Maples for a pre-op evaluation. Dr. Maples ordered a urine pregnancy test and plaintiff gave a urine sample to the nurses. However, the test was never performed. At this point, plaintiff was approximately 13 weeks gestation.  On the day of the tubal ligation surgery, the nursing staff printed a copy of the June 4, 2001 pregnancy test and put it in the chart. Dr. Maples testified that her custom and practice was not to review the chart before performing tubal ligation surgery, but to rely on the nursing staff to tell her if the pregnancy test was positive. She said that the nurses neither told her that the urine test had not been performed nor that the previous labs had been positive for pregnancy.  Plaintiff was given a general anesthetic and Dr. Maples began the laparoscopic procedure. She noted during the surgery that the uterus was enlarged, but presumed that it was a fibroid, since she believed that the pregnancy test had been nega­tive. Dr. Maples told plaintiff’s husband that the operation went fine but that she found a fibroid uterus.

A few weeks following surgery, plaintiff became concerned because her uterus was continuing to enlarge.  She telephoned Kaiser and left  messages for Dr. Maples indicating that her uterus was continuing to grow and requesting that she be seen before her scheduled post-operative appointment.  Telephone  messages were left  for Dr. Maples on July 26 and July 27. Plaintiff was not examined by Dr. Maples until August 17, 2001.  At that visit, Dr. Maples performed an ultrasound and made the diagnosis of an intrauterine pregnancy of  20 + weeks gestation.  Dr. Maples was very upset to learn that she had performed a bilateral tubal ligation on a pregnant woman.  She checked with the laboratory and learned for the first time that the urine pregnancy test had never be performed and verified that the result of the test she had ordered was not in the computer system.  Plaintiff would not consider an abortion at that time because it was too late.

The pregnancy was complicated by complete placenta previa.  Plaintff experienced three episodes of severe vaginal bleeding necessitating an emergency Caesarean section on October 13, 2001.  Issac was born severely premature at 28 weeks gestation, weighing 1 pound, nine ounces.  For the next three months, he was hospitalized in the Kaiser Bellfower neonatal intensive care unit until January 12, 2002.  He suffered mul­ti­ple complications associated with his extreme prematurity including respiratory distress syndrome, anemia, sepsis, apnea, bradycardia and gastroesophageal reflux.  Shortly after his discharge from Kaiser Bellflower, Issac was admitted to the Kaiser Sunset facility for treatment of a severe episode of RSV pneumonia.  He continued to have apneic episodes and was discharged on an apnea monitor which he required for approximately one year.  He is now nearly three years old and has been diagnosed with global developmental delay since birth and has suffered from recurrent otitis media and profound speech delay.

After Plaintiff recovered from emergency surgery, she spent nearly every day at the hospital with her premature son while, at the same time, continuing to care for her other six children and her infirm mother.  Because of the complications from her pregnancy with Issac and his constant care needs, plaintiff has never been able to return to her full time job. Issac’s birth in October 2001 and his mul­ti­ple, extraordinary needs have pushed the family beyond their ability to cope emotionally and financially. 

 PER PLAINTIFF:  Kaiser Foundation Hospital was negligent in failing to inform plaintiff that she was pregnant on or about June 4, 2001 when she should have been offered a first trimester abortion; for failing to obtain an urine pregnancy test on or about June 27, 2001; and failing to notify Dr. Maples of the positive pregnancy test.  Dr. Maples was negligent for failing to ascertain prior to surgery whether the pregnancy test she had ordered had been performed by personally reviewing the chart. Dr. Maples was also negligent for presuming that the enlarged uterus was merely a fibroid and for performance of a laproscopic tubal ligation on a pregnant patient.  Had she properly made the diagnosis of pregnancy, a timely therapeutic abortion could have been performed in the first trimester.

PER DEFENDANTS: Kaiser admitted that its nurses negligently failed to report the pregnancy test result of June 4, 2001 to the patient, and failed to inform Dr. Maples that (1) the June 4, 2001 test was positive and (2) the urine pregnancy test was never done. Dr. Maples claimed, however, that she had followed her usual custom and practice in relying on the nurses for information about the pregnancy test results and had the right to assume that the patient was not pregnant when she performed the sterilization surgery. Defendants claimed that plaintiff might not have undergone an abortion, even if she had been notified earlier.  Defendants disputed that plaintiff had lost earnings or that Issac would need anything other than the special services offered by the school district to catch up and be normal by age 5. 

INJURY: Birth of a child with developmental delays.

SPECIAL DAMAGES: Loss of earnings: $50,000.  The cost of raising a child with developmental delays (i.e., social, educational and medical services) to age 18: $900,000 present value.

SETTLEMENT DEMAND: $500,000.

OFFER: None.

ARBITRATION AWARD: Kaiser Foundation Hospital, but not Dr. Maples, was found liable.  $150,000 for general damages and $50,000 for lost earnings for plaintiff; $900,000 for the cost of raising Issac for a total of $1,100,000.

LENGTH OF HEARING: 4 days.

ARBITRATOR: Harold Hunter, Jr. was the sole neutral arbitrator.