Facts: On May 12, 2011, then 17-year-old Raymond Palmer, a Kaiser member through
his grandfather’s plan, was the victim of multiple stab wounds while
at a trolley stop. He survived the attack, was stabilized at UCSD Medical
Center, and was on his way to a full recovery. Surgery while at UCSD revealed
evidence of hemopericardium, but his heart was not injured or damaged.
He underwent the removal of one kidney, a left colon resection and subsequent
colostomy. Following the surgeries, he had difficulty being weaned from
the ventilator. He developed agitation when sedation was weaned and failed
multiple CPAP trials.
Ray was finally extubated at UCSD on May 18, 2011. During that time he
was able to speak with his mother, Andrea Palmer, to answer her questions
and follow instructions. Although he remained extubated for a few hours,
he had to be reintubated secondary to tachypnea, increased work of breathing,
and respiratory failure. While intubated Ray remained sedated on propofol
and showed signs of agitation when sedation was weaned. No one ever expressed
any concerns to the family about Ray’s neurological status while
at UCSD and no neurology consultation was requested. Once Ray was stable,
Kaiser insisted that he be transferred to one of its facilities.
On May 20, 2011, Ray Palmer was transferred to Kaiser Zion. Upon arrival
at Kaiser, his wrist restraints, utilized because of his bouts of agitation
while intubated, were maintained and he was kept on the Propofol drip
for sedation. Dr. Ziolo, an intensivist, examined Ray on the next day,
and was concerned about his persistent fever, which she thought might
be in reaction to the Propofol. She wrote an order to wean the Propofol
and start Ray on Versed.
As the evening wore on, Ray started to become more alert and agitated.
Despite receiving Versed at the maximum drip and a Fentanyl drip, Ray
was still waking up intermittently and trying to pull out his endotracheal
tube. He had several recorded episodes of agitation the night of May 20th
and the early morning hours of May 21st. Nurse Munoz reviewed the restraint
orders at 0700 and noted that they were warranted because Mr. Palmer was
“pulling lines, pulling tubes, removal of equipment, climbing out
At 0730 on May 21st, the nursing staff changed shift and Nurse Jon Concepcion
was assigned as Ray’s day nurse. Nurse Concepcion had no experience
as an assigned nurse directly responsible for a patient exhibiting agitation
such as Ray was showing. According to Nurse Munoz, she was concerned Ray’s
tube was going to get removed or the ventilator would get disconnected
and expressed that concern to Nurse Concepcion.
Nurse Concepcion testified that Nurse Munoz told him that she called the
medical officer on duty during the night to get orders for Versed, something
that Nurse Munoz denied.
The episodes of agitation continued to worsen during the morning hours.
Cardiologist William Keen, M.D., came to evaluate Ray’s heart and
perdicardial condition shortly after 1000. He did a bedside echo ultrasound
which confirmed that Ray’s perdicardial effusion was stable with
no change and no tamponade.
At some point within this time frame, general surgeon Bradley Bartos, M.D.,
also came in to evaluate Ray and was present during the bedside echo.
Although Dr. Bartos first testified he did not get the impression Ray
was pulling at his tubes, this was contradicted by his note.
While the Code sheet is vague, incomplete and unclear, it appears from
piecing together testimony that somewhere between 1041 and 1045, the ventilator
alarms sounded from Ray’s ventilator showing low tidal volume. Upon
assessment of the tube, Mr. Ibanez noted that the tube itself was leaking.
He saw the tube was no longer properly in place and starting to fall out.
Nurse Hoffman noted that Ray’s O2 sats were declining and his color
was not good. Dr. Keen entered the room, and checked Ray’s heart
again with the portable ultrasound, and noted the heart was barely moving,
and that Ray had no pulse.
Code Blue was called. Dr. Drew reintubated the patient at 1050.
During the code, Ray went between pulseless electrical activity and asystole.
Ray had no pulse or blood pressure from the time of the initial ultrasound
until his heart rate returned. The first rhythm strip that shows a pulse
at the conclusion of the code is at 1103.
Contentions: The facts clearly demonstrate, and claimant’s experts testified,
that the events leading up to the disconnected endotracheal tube were
predictable and preventable, that the extubation and subsequent cardiopulmonary
arrest were poorly handled, and that Kaiser’s physicians and nurses
were negligent in their care and treatment of Ray, which resulted in his
permanent brain injury.
Kaiser alleged that prospectively, the outcome Mr. Palmer suffered was
not foreseeable and therefore the defendants were not negligent. They
claimed that in order to aid Mr. Palmer coming off the ventilator, the
level of agitation he exhibited was expected and acceptable. Kaiser also
contended that Mr. Palmer “possibly” had sustained brain damage
as a result of the underlying stabbing event, and suggested that he was
unusually susceptible because of his overall physical state, and the pericardial effusion.
Injuries/Damages: Ray Palmer suffered an anoxic brain injury, one he did not have as a
result of the initial altercation which landed him at UCSD and ultimately
at Kaiser. He is now 19 years old and can only read at a second-grade
level. He is learning to walk with a walker, requires assistance with
his activities of daily living, and needs round-the-clock supervision
and care to keep him safe. He will never be able to hold a job, and will
never live independently.
Interim Arbitration Award: At the conclusion of the arbitration, counsel agreed that the Arbitrator
may issue an ‘interim’ award if he found in favor of claimant
to provide the respondents an opportunity to move for periodic payments
pursuant to MICRA if they so elected. On July 19, 2013, issued his Interim
Award in Claimant’s favor for non-economic damages of $250,000,
loss of earning capacity (present value) of $587,907, and future life
care costs (present value) of $3,675,000 – for a total award of
$4,512,907. In addition, the arbitrator ordered that Kaiser shall continue
to pay all expenses incurred in Mr. Palmer’s stay at the rehabilitation
facility for as long as his attending physicians determine his confinement
there is medically necessary, as well as ordering that Kaiser continue
to pay rent for a house adjacent to the facility for Mr. Palmer’s
mother. Respondent moved for reconsideration on the issues of liability,
causation and damages. Claimant opposed the motion, and also moved for
the arbitrator to award monetary damages rather than declaratory relief
for the future medical expenses related to Mr. Palmer’s stay at
the rehabilitation facility.
Final Arbitration Award: After a hearing on Kaiser’s motion for reconsideration, the Arbitrator
upheld the findings on both liability and causation. He upheld his future
care needs, but adjusted them to reflect another year at the rehabilitation
center. Therefore, he attended the cost of one year at the rehab facility,
but subtracted out any items he viewed as double recovery while Mr. Palmer
remained at the nursing center. The final included non-economic damages
of $250,000, loss of earning capacity (present value) of $587,907, future
life care costs (present value) of $3,524,688, an additional year at Casa
Colina Rehabilitation Center of $569,932, and rent for Ms. Palmer’s
home at Casa Colina for an additional year of $18,000 – for a total
award of $4,950,527.
Special Notes: Shortly before the Arbitration Hearing was scheduled to begin, claimant
served a Statutory Offer to Compromise on the Kaiser entities, in the
amount of $7,500,000. The offer was not accepted, and no counter-offer was made.
In closing argument, Mr. Palmer’s attorney requested an award to
include the $250,000 maximum under California law for non-economic damages,
as well as $1,124,068 for loss of future earning capacity, and the value
of their life care plan, $7,275,653, for total requested damages in the
amount of $8,649,721.
Kaiser’s counsel asked the arbitrator for a defense award.