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Damages award against Kaiser  $3.3 million for man who had surgery he didn't need
    - Alex Barnum, Chronicle Staff Writer
    Thursday, December 2, 2004

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2004/12/02/BAGDLA51NT1.DTL

    A Berkeley man who was left nearly blind following heart bypass surgery he did not need has been awarded $3.3 million in one of the largest malpractice decisions against Kaiser Permanente in recent years.

    An arbitration panel made the award Tuesday to Kamal Azari, 51, a real estate developer, and his wife, Pari Azari. The couple received $500,000 in damages for pain and suffering, the maximum under state law, and he received $2.8 million in special damages for medical costs and loss of future earnings.

    Azari's attorney, Marvin Lewis Jr. of San Francisco, said his client had been devastated by his medical ordeal.

"They got his records mixed up. They gave heart surgery to someone with a normal heart," he said. "His life has been terribly messed up as a result." Azari's vision was damaged after doctors failed to recognize internal bleeding following bypass surgery in October 2002, Lewis said. The bleeding -- and a drug doctors gave to boost his blood pressure -- compromised the supply of oxygen to his optical nerve.

 Kaiser admitted some liability in the case, saying that its doctors, instead of operating on Azari's heart, should have taken a more conservative approach, said spokeswoman Maureen McInaney. But she said the HMO's doctors did not agree that the damage to Azari's vision was as severe as he claimed.

    Azari, who also owns a ranch in Petaluma, went to Kaiser San Rafael in September 2002, complaining of pain in his left arm when he exercised. After a stress test and a procedure to look for arterial blockages, Kaiser doctors concluded that Azari needed bypass surgery to improve blood flow to his heart.

    But Azari's attorney and consulting experts said that Kaiser doctors had misread the results and that both tests had, in fact, shown Azari had good blood flow. In the case of the stress test, Azari's consulting doctor said that Kaiser physicians must simply have read another patient's test result.

    Then, as Azari was recuperating from bypass surgery at Kaiser's San Francisco hospital, doctors for many hours failed to recognize he was bleeding internally, his attorney said -- and that when they did, they failed to correct it properly. His blindness occurred from the loss of oxygen-carrying blood to his eyes.

    Azari is nearly blind in his left eye and has only 30 percent of the vision in his right eye, his attorney said. The three-person arbitration panel concluded that his ability to continue working had been severely impaired and that he would have to hire others to do the work in his real estate business.

    Kaiser patients must resolve malpractice claims and other disputes through binding arbitration, and most are settled or dropped before they ever reach a hearing. Of nearly 3,300 cases resolved from 1999 to 2003, only 14 percent made it to a hearing, and 5 percent resulted in awards. The largest award was for $5.6 million.

    A 1975 state law put a $250,000 cap on the amount of damages that a plaintiff can win for "pain and suffering" in medical malpractice cases. Critics of the law, including patients' rights groups and malpractice lawyers, say the cap should be raised to reflect higher living costs and increases in doctors' salaries since the law was enacted.