Medical Malpractice- $1,001,600.00
In a surprising response, a prominent medical group agreed to accept a
998 offer to compromise in the amount of $1.016 million in a wrongful
death, medical negligence case before the plaintiffs took any depositions
or did any real discovery. “This is only the second time I’ve
had this happen in 30 years of practice,” said Attorney Robert Vaage,
who represented the heirs of the decedent in this case.
The claimants are the wife and children of a 46-year-old department store
salesperson. In January of 2015, the decedent was being followed by a
medical group cardiologist for a 7.5 cm sinus of Valsalva aneurysm. The
medical group produced referral guidelines that required an urgent referral
to a vascular surgeon for a large aortic aneurysm greater than 6.0 cm.
The patient was not referred to a surgeon until late March of 2015. On
April 1, 2015, prior to being scheduled to see a cardiac/vascular surgeon,
the patient experienced a dissection. He died from these injuries on April
“This poor gentleman was a ticking time bomb waiting to happen, and
the cardiologist was grossly negligent for not getting him in to see a
surgeon urgently,” Vaage said. At the time the 998 offers were accepted,
a motion to compel was on calendar for the medical group’s access
logs to the decedent’s medical records, unredacted copies of guidelines
concerning aortic aneurysms, and the criteria for the Committee of Cardiac
Surgeons, along with a request for sanctions. The cardiologist’s
deposition was scheduled for August.
This case is yet another example of how grossly unfair MICRA is, when a
46-year-old husband and father of two children dies, and the family can
only collect $250,000 in general damages for loss of care, comfort, and
society. The medical group agreed to pay the maximum value of the case
under MICRA before a motion to compel, request for sanctions, and motion
to allege punitive damages pursuant to CCP §425.13 were heard.
The medical group insisted on confidentiality before it would agree to
fund a tax-free annuity for the minor child, something that costs the
medical group nothing more.
Patient develops CRPS following IM Phenergan injection- $1,075,000.00
Facts: Plaintiff, a 5-foot-3 inch, 100-pound school teacher, was injected with
the maximum dose (25 mg) of Phenergan into her upper arm during an emergency
room visit. Phenergan has a ''black box" warning from the
FDA indicating it should be given into deep muscle because of the inherent
risk of tissue damage. Both the pharmacist and nurse were unaware of the
black box warning. The patient experienced extreme pain during the injection
and developed a hematoma. The condition of her arm continued to deteriorate
and she was eventually diagnosed with complex regional pain syndrome.
Allegations by Plaintiffs: Due to plaintiff's small body habitus, the Phenergan should have been
injected into her gluteus (hip) rather than her thin arm. The hospital
violated its own policies and procedures concerning the administration
of Phenergan, a drug with a black box warning, and failed to make sure
that its staff was aware of these policies and procedures concerning drugs
with black box warnings.
Allegations by Defendants: Defendant Hospital contended that its care and treatment of plaintiff
was appropriate, within the standard of practice, and did not cause the
injuries claimed. The hospital contested the fact that plaintiff has chronic
regional pain syndrome resulting from the injection, as well as her lupus
and vasculitis. One of defendant’s experts diagnosed plaintiff with
“factitious disorder,” a condition in which a person acts
as if she has an illness by deliberately producing, feigning, or exaggerating
symptoms. The defendant hired private investigators who took over 433 hours of
sub rosa video, costing over $40,000.
Damages: Plaintiff developed chronic regional pain syndrome (CRPS) in her arm and
is no longer able to work as a teacher or participate in most basic aspects
of daily living. The condition causes chronic, unremitting pain. Stellate
ganglion blocks and a dorsal column stimulator were only temporarily effective.
At the time of the incident, plaintiff was working as a middle school teacher.
She is no longer able to work. Her life has been forever changed by the
incessant pain she experiences in her left (dominant) arm. She can no
longer participate in the most basic aspects of daily living, including
holding her son and husband. She will require medical care for the chronic
pain for the rest of her life. She is presently 35 years old.
Settlement Discussions: Defendant sent a Code of Civil Procedure section 998 offer to compromise
for $0 and a waiver of costs in exchange for dismissal of the action.
Plaintiffs countered with 998 offer for $1,300,000 (plaintiff) and $150,000
Results: Two days before the commencement of trial, the matter settled for the total
amount of $1,075,000.
Delay in Diagnosis of Gastric Bypass Complication- $8,999,998.00
Facts: 40-year-old Jane Doe, a longshoreman, presented twice to Defendant Hospital
for abdominal pain, nausea and vomiting. She had a history of both gastric
bypass surgery and lap banding. The first ER doctor on June 13th suspected that her pain was associated with her lap band procedure. She
was sent home with instructions to contact her physician and if she worsened
to return to the ED. She returned on June 15th with severe abdominal pain assessed at 10/10. She was seen by Defendant
ER Doctor, who consulted with Defendant GI Doctor, who believed that the
patient could have a bleed. He recommended to Defendant ER Doctor that
a surgical consult be obtained and agreed with the recommendation for
the patient to be admitted. The Defendant Hospital did not have a bariatric
program, nor did it have access to any bariatric surgeons for consultations.
No one contacted Ms. Doe’s private physician and no surgical consult
Defendant Hospitalist Doctor examined and followed the patient during her
hospitalization. He believed she most likely had regional enteritis and
severe anemia. He ordered a CT scan which could not be obtained because
Ms. Doe was in excruciating pain and was unable to lie flat. The hospital
staff never informed the physicians. By June 17th, Ms. Doe’s stool was black and positive for blood. Nursing staff
failed to record vitals for up to 12 hours at a time. When vitals were
recorded, they were continuing to deteriorate as plaintiff developed tachycardia
and low blood pressure.
The GI Doctor continued to follow the patient and performed an endoscopy
on June 18th. By this time Ms. Doe had difficulty breathing and was severely anemic.
During the procedure, she became hypoxic and required emergency intubation.
She was transferred to the ICU. A surgical consult was ordered that day.
Later in the evening, Ms. Doe was seen by Defendant General Surgeon who
had no surgical experience with bariatric patients. A June 18th CT revealed a bowel obstruction and fluid in the lungs and abdomen. Plaintiff
On June 19th, Defendant General Surgeon recommended finding a bariatric surgeon for
emergent surgery. On June 20th, Ms. Doe was finally transferred to a hospital with a bariatric program
for emergency surgery. The surgeon found that essentially her entire bowel
was dead (necrotic) as a result of a bowel torsion at the site of the
sutures from her prior gastric bypass surgery. She has undergone multiple
Allegations by Plaintiff: Plaintiff alleged that her presentation on June 15th required immediate consultation with a bariatric surgeon. As a result
of the failure of the physicians to recognize the complication and their
failure to consult an appropriately trained bariatric surgeon, the delay
in treatment caused irreversible ischemic damage to most of Ms. Doe’s
bowels. Furthermore, plaintiff alleged that the Hospital failed to have
a system in place to identify patients who require bariatric services
that it could not provide. The Hospital failed to recognize her need for
bariatric services. Plaintiff also alleged that the hospital staff failed
to properly monitor her and failed to go up the chain of command when
her condition deteriorated and the physicians were not appropriately intervening.
Allegations by Defense: All settling defendants contended that they met all applicable standards
of practice and care and that a bariatric surgeon or transfer to another
facility was not required. Defendants contended that there was nothing
in her condition that signaled the need for a surgical consult until June 18th, and that by then it was too late to make a difference.
Defendant ER doctor contended that all of the other defendants that settled
were negligent, but he was not. Several of his own experts testified that
Ms. Doe required a surgical consult on the 15th, and that had she received the surgical consult, she would have been taken
to surgery and would not have suffered any of the injuries and damages
she now has. However, they testified that the responsibility for getting
this surgical consult fell to other doctors, not Defendant ER Doctor.
Injuries/Damages: As a result of the delay in treatment, Ms. Doe now suffers from short
bowel syndrome requiring parenteral nutrition and gastrostomy tube feedings
for the rest of her life.
Settlement Discussions: Shortly after the Defendants GI Doctor, Hospitalist Doctor, and General
Surgeon were deposed, plaintiff served each with a demand for settlement
pursuant to Code of Civil Procedure Section 998 for their $1 million insurance
policies. All three consented to settle for just shy of their respective
policy limits. Plaintiff rejected Defendant ER Doctor’s $25,000,
and $50,000 offers. On December 18th, Plaintiff and Defendant Hospital
and Defendant ER Doctor went to mediation. Following mediation, Defendant
Hospital settled for a total payment of $6,000,000. The ER Doctor’s
highest offer was $250,000, which was rejected by plaintiff.
Total settlement as to all parties except the ER Doctor was $8,999,998.
VA Delay in Diagnosis of TIA/Stroke- $950,000.00
Plaintiff’s experts contend that the differential on February 27
clearly included TIA or stroke requiring an emergent workup and prophylactic
treatment with anticoagulation or antiplatelet therapy. An MRI/MRA should
have been completed within 48 hours of Mr. S’s February 27th presentation.
If an MRI/MRA was not available, a carotid ultrasound or a CTA should
have been ordered within that time frame. Mr. S should have been admitted
to the hospital for neurological consultation and monitoring, and medical
If appropriate studies had been ordered within the standard 48-hour window,
then the carotid dissections would have been identified, along with the
fact Mr. S had hypoperfusion. Mr. S should have received medical management
with antiplatelet or anticoagulation therapy, along with monitoring of
his hypoperfusion starting on February 27. The staff at the VA should
have continued antiplatelet/anticoagulation therapy when Mr. Simmons returned
to the ER on March 1. If Mr. Simmons had been properly managed, plaintiff
contended that more likely than not the massive stroke suffered on March
2 would have been avoided and Mr. Simmons would have resumed his normal life.
Defendant claimed that the physicians at the VA acted within the standard
of care at all times and that Mr. S was advised to take aspirin on February
27. Defendant further contended that aspirin is only effective in preventing
strokes in 1 out 5 of patients with TIA and that more likely than not
the stroke would not have been prevented by the aspirin therapy.
On February 20th, 50-year-old Mr. S presented to the Palo Alto VA Medical
Center emergency room with complaints of “my heart beating in my
ears,” right-sided visual disturbance, headache, jaw clenching,
and an ongoing complaint of neck pain. There was no emergency room physician
discharge note and the plaintiff was sent home with Discharge Instructions
noting a final diagnosis of acute sinusitis and otitis media.
Later that morning, Mr. S saw an ophthalmologist who noted that he was
experiencing right eye complaints including light sensitivity, blurriness
and haziness like a film was over his eye and mild, right-sided headache
which he described as pressure, not pain. Mr. S was counseled on ocular
Three days later, Mr. S was seen by VA Internal Medicine Physician David
Yao, M.D., for follow-up. At that time, he was complaining that he was
unable to sleep much because when he lies down, he feels his heart pounding.
Mr. S was sent home with a short course of pseudophedrine and sinus wash.
On February 26, 2011, Mr. S tried to stand and fainted.
On the following day, February 27th, Mr. S experienced an episode of left-sided
facial numbness, uncontrolled clenching of his left hand, and some weakness
and skin irritation in his left leg. He presented to the Palo Alto VA
Medical Center emergency room and was seen by Dr. James Connor. In addition
to the recent left face, arm, and leg weakness and numbness, he also was
complaining of a headache and dizziness. Dr. Connor’s report noted
a differential diagnosis of possible CVA vs. TIA and that he discussed
the case on the phone with a neurologist who felt TIA was unlikely and
recommended EKG and perhaps an outpatient MRI through the patient’s
primary care physician. There is no record of the phone conversation and
the government could not identify the neurologist who spoke to Dr. Connor.
A non-contrast CT of the head was performed and was normal, but no MRI
or other diagnostic radiograph or ultrasound was taken to rule out a CVA
or TIA or its cause.
Dr. Connor’s ED report indicated that he “will recommend 1
ASA (aspirin) per day.” However, Mr. S and his wife both state they
did not receive any instructions or counseling for Mr. S to take aspirin.
The discharge instructions he received gave a final diagnosis of sinusitis
and instructed the patient to see his primary care physician as soon as possible.
On March 1st, Mr. S began having increased problems with his memory. Mr.
S contacted the V.A. Advice Nurse and was advised to return to the emergency
room. Nurse Pless advised Mr. S to see a doctor now or his condition could
worsen, and to take ASA (aspirin) as directed.
Mr. S went to the emergency room of the VA Medical Center in Palo Alto
on March 1st, and was seen by Dr. Sanjiv Singh. There is no reference
to aspirin in his active medication list. On physical exam, Mr. S did
exhibit confusion with word choice, misdated some forms, and initially
responded that he had no siblings when he had four. A CT showed multifocal
hypodensities, and Dr. Singh noted a need for MRI/MRA of the head and
neck for further evaluation. The neurology resident noted that they “remained
concerned for stroke.” Although a stroke/TIA was in the differential
diagnosis, it was not immediately worked up or treated. No CTA or carotid
duplex was ordered and an MRI/MRA was not scheduled until the next day.
Mr. S received no anticoagulation or antiplatelet therapy.
Mr. S was taken for an MRI that afternoon at 15:43. The MRI revealed acute
bilateral watershed infarcts and right carotid occlusion suggestive of
right carotid dissection. While in the waiting area after his MRI was
completed, Mr. S became unresponsive and suffered a massive stroke. A
Code Blue was called and ultimately it was decided to initiate IV tPA,
a stroke treatment that has the potential of reversing stroke effects.
Following the stroke, Mr. S was noted to be perfusion dependent and suffered
an escalation of symptoms when his head was elevated at times.
Mr. S suffers from left-sided numbness, left facial droop, and an “alien
hand” as a result of the stroke. He suffers from pseudobulbar affect
which causes sudden and unprovoked episodes of crying. The long term effects
of the stroke also include cognitive deficient and memory problems. Mr.
S also had behavioral changes as a direct consequence of the brain pathology
of the stroke.
Prior to the stroke, Mr. S was self-employed as a backhoe driver. Plaintiff
claimed full loss of income as a result of the stroke. Defense conceded
that the plaintiff was unable to work post-stroke. However, the defense
argued Mr. S was not working much prior to the stroke due to the poor
economy and other health problems, and that absent the stroke, he would
not have been able to return to work in construction due to the carotid
Plaintiff demanded $2,367,061 to resolve the matter, which was rejected
by defendant. An attempt at mediation, during which time defendant offered
$100,000.00 to settle the matter, was unsuccessful. The case was set to
be tried. In the interim, the Court instructed counsel to attend another
mediation session, at which time the case resolved for $950,000 shortly
Orthopedic Surgeon Fails to Repair Dural Tears- $1,300,000.00
Facts: Claimant JB, 51, a small business owner, had a history of low back pain
and sciatica. Her symptoms worsened over the years and she to see orthopedic
surgeon Jeffrey Schiffman. Based on his exam of JB, Dr. Schiffman's
impression was that she had three-level lumbar spondylolisthesis and right
sciatica. An MRI confirmed her severe spinal stenosis, and Dr. Schiffman
recommended an anterior lumbar interbody fusion from L3-L5 and posterior
On June 1st, JB underwent an anterior lumbar fusion and posterior laminectomy
performed by Dr. Schiffman. The surgery involved two separate procedures:
a posterior laminectomy followed by an anterior fusion in which bone dowels
were used with the intent to create stability in the spine. According
to the operative report, during the surgery, dural tears were created
in several spots. Dr. Schiffman admitted that he created at least three
dural tears during the procedure.
Contentions: JB alleged that Dr. Schiffman was negligent in his repair of the dural
tears he caused during the June 1st surgery. Dr. Schiffman used thrombin-soaked
Gelfoam (known to expand and specifically contraindicated for use during
lamienctormy) and thrombin spary to control bleeding. Then, rather than
suturing the dural tears, Dr. Schiffman used a DuraPatch which he cut
to size and laid over the dura. He did not suture the DuraPatch in place
as the product's Instructions for Use recommended. He then covered
the entire patch area with two layers of DuraSeal, a synthetic hydrogel
intended to provide a watertight seal of a dural repair. DuraSeal is a
product known to expand up to 50 percent or more of its size over the
course of several weeks after it is placed. According to the intraoperative
records, Dr. Schiffman used two 5ML syringes of DuraSeal during the procedure.
She further alleged that Dr. Schiffman had an opportunity post-operatively
to diagnose and repair the nerve compression before claimant's nerve
injury became permanent, and he did not.
Finally in July, at the insistence of JB, Dr. Schiffman ordered an MRI
which showed a mass lesion at the L4-5 level. This mass compressing the
nerves from either inside the dura, outside the dura, or both. Despite
these suspicious findings, Dr. Schiffman felt there was no need to reoperate.
JB’s symptoms continued to advance along with pain in her legs and
heaviness in her feet. Frustrated with her situation, JB began investigating
further workup of her issues. She insisted on a CT myelogram, which was
done September 17th, which revealed a large mass in her lumbar spine with
a complete blockage of contrast material at the L4-5 level. JB returned
to Dr. Schiffman for the last time on September 20th accompanied by a
friend. In response to JB’s frustration with her current physical
condition, Dr. Schiffman allegedly simply told her to sue him.
At this point JB sought treatment with other surgeons and physicians. Doctors
tested her sphincter muscle, which was found to be very weak, and a colorectal
surgeon confirmed that her inability to defecate was due to neurologic
injury. Her urologist has also confirmed that she has a neurogenic bladder
causing her inability to void.
In a subsequent surgery by Dr. Sanjay Ghosh in November, Dr. Ghosh found
a large amount of what he described as "tissue glue" (made up
of a foreign substance, probably DuraSeal, blood and scar tissue) that
was causing compression and narrowing of the spinal canal at the L4-5
level. The mass of gel was large enough to deflect and deform the dura
in a significant manner. Other findings by Ghosh included a herniated
nerve rootlet as well as nerves encased in scar tissue plugging the dural
defect and effectively sealing it.
At the arbitration hearing claimant presented expert testimony that these
findings are not consistent with a properly performed dural repair.
Dr. Schiffman contended that the dural tears were known complications of
this type of procedure; that he did a proper repair; that there was no
evidence of compression after the surgery and therefore, no delay in dealing
with the problem. Defendant also alleged that many of JB's problems
were as a result of a pre-existing condition.
cauda equina syndrome; arachnoiditis.
There was no dispute that JB suffers from cauda equina syndrome causing
dysfunction of her bowel and bladder, sexual dysfunction, and chronic
pain. In addition to suffering from cauda equina syndrome, as a result
of Dr. Schiffman's negligence, JB also has arachnoiditis, which causes
normal nerve roots floating in cerebral spinal fluid to become inflamed,
clump together and become sticky. This is usually caused by trauma associated
with spinal surgery. Every couple of hours JB needs to catheterize herself
in order to urinate. If she doesn't, she will have an accident. The
only way she is able to have a bowel movement is by digitally disimpacting
At times the neuropathic pain and pressure on her rectum are debilitating.
She is afraid and is embarrassed when she has an "accident"
in public places and in front of people she knows. She has chronic neuropathic
pain in her legs.
She must use narcotic drugs on a daily basis in an effort to deal with
the pain. She suffers from sexual dysfunction due to the saddle anesthesia
she experiences. At age 51, JB will never be the same. Every aspect of
her life has changed and she is now plagued by chronic, intractable pain.
She is no longer employable in the open market and suffers from a loss
of her earning capacity.
Special Notes: Claimant’s last settlement demand to Dr. Schiffman prior to arbitration
was $1.695 million. Dr. Schiffman made no offer prior to arbitration.
At the conclusion of the arbitration, the arbitration panel notified counsel
that they had found 3-0 in favor of claimant, and indicated they would
give the parties 10 days to "resolve" the matter before they
issued their final award. The matter settled for $1.3 million.
Brain Injury from Dislodged Endotracheal Tube- $4,950,527.00
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.
Failure to Treat TIA, Leading to Stroke- $1,237,321.00
Facts: On December 22, 2008, Linda de la Rosa saw her primary physician, Dr.
Francis Chu, complaining of pressure in her right eye, decreased vision,
and flashes of light when her vision returned. She reported to Dr. Chu
that she had two prior episodes within the last week of feeling like she
was being pulled to the right and in one episode she fell. Dr. Chu noted
the unusual presentation and his diagnosis was possible migraine headache
variant vs. other neuro symptoms. Dr. Chu was aware that Mrs. de la Rosa
had been previously diagnosed with Sjorgen’s syndrome, which increased
the risk of blood clots. Dr. Chu was aware that five months earlier, she
had a deep vein thrombosis (DVT) and was on Warfarin therapy to reduce
the risk of blood clots. Mrs. de la Rosa was sent home with no further
treatment prescribed. On January 2, 2009, she suffered a stroke which
has caused permanent and irreversible impairments.
Contentions: Plaintiff contended, and the Arbitrator found, that Dr. Chu’s care
of Mrs. de la Rosa fell below the standard of care and and that with proper
diagnostic testing, followed up by appropriate medical treatment, Mrs.
de la Rosa’s left vertebral artery condition would have been diagnosed
and that the shower of clots that caused the stroke on January 2, 2009,
could have been dissolved and the stroke avoided.
Injuries/Damages: She has permanent vision problems and lack of muscular synchronization.
She has permanent weakness in hner left side and diminished sensation
on her right side. Her life expectancy is shortened.
Results: The matter was arbitrated before the Honorable John W. Kennedy, Jr., retired,
in Riverside, California, over five days. Mrs. de la Rosa received an
arbitration award of $1,237,321. Her husband received $30,000 for loss
Special Notes: This is the second Kaiser case that Attorney Robert Vaage has successfully
arbitrated involving the failure of Kaiser physicians to identify signs
and symptoms of transient ischemic attacks (TIA), mistaking the symptoms
for some form of migraine. See
Howard v. Kaiser. Per Vaage, “If you have TIA and a migraine as potential diagnoses,
you have to rule out the potential life-threatening, time-sensitive problems
that can cause TIA. In both cases that wasn’t done, and the patients
went on to have a devastating stroke.”
The California legislature limited general damages for pain and suffering
in medical malpractice cases under the Medical Injury Compensation Reform
Act of 1975 (MICRA) to $250,000. The balance of the award to Mrs. de la
Rosa was for income loss and future medical care.
Kaiser was represented by Douglas Smith, Esq., of Smith Mitchellwieler,
LLP, in Riverside, California.
Failure to Treat TIA, Leading to Stroke- $5,000,000.00
Facts: In October, 2007 Mr. Howard, a married father of twin daughters, was a
healthy 46-year-old working at a Valencia middle school. He visited his
Kaiser primary care physician after experiencing intermittent blindness
or “gray-out” in his right eye. The primary doctor referred
him to ophthalmologist Paul Deiter, M.D. Dr. Deiter, who also served as
general counsel for the Southern California Permanente Medical Group,
referred Mr. Howard back to his primary care physician after finding no
structural abnormalities of the eye. Contained in the Dr. Deiter’s
differential diagnosis was ocular migraine and transient ischemic attack
(TIA) of the retina.
In addition to continued vision issues, Mr. Howard begin experiencing headaches,
tingling in his left pinky, and neck pain. His wife insisted that he see
Marika Issakhanian, M.D., a neurologist for Kaiser. Dr. Issakhanian was
allegedly in a hurry, and seemed uninterested in hearing the Howard’s
concerns. She entirely disregarded the warning signs and symptoms of TIA,
diagnosing Mr. Howard with an ocular migraine headache. Undisputedly,
TIA is a condition which is extremely time-sensitive, and can be potentially
life-threatening. She ordered an MRI and MRA to appease Mr. Howard and
his wife, but the test would not be performed until December.
Mr. Howard completely lost vision in his right eye on Thanksgiving evening,
and immediately visited the Kaiser Urgent Care facility in Woodland Hills.
The doctor who saw him also claimed that Mr. Howard was suffering from
an ocular migraine. At the insistence of Mrs. Howard, who was certain
something was wrong, the doctor agreed to perform a CT scan. Mr. Howard
suffered a severe ischemic stroke while awaiting the scan results, which
Kaiser emergency room physicians would later determine was caused by a
carotid dissection. Mr. Howard was given and passed all diagnostic tests
in the Kaiser tPA protocol which determined he was a candidate for administration
of tPA. However, tPA was not administered by Kaiser personnel. He was
then transferred from Kaiser Woodland Hills to UCLA Medical Center for
evaluation for interventional therapy but by the time he arrived at UCLA,
the window had passed for administration to tPA and/or anti-platelet therapy.
TIA of the retina is the result of the recurring interruption of blood
flow to the eye, causing visual disturbances and “gray-outs.”
The root cause of this disruption is typically a carotid dissection in
men under 60 years old. The condition is typically treated with anticoagulation
medications, and the tear will typically heal itself within 3-6 months.
When undiagnosed or untreated, however, these dissections can result in
a severe stroke. It was undisputed by the neurology experts for both sides
that if carotid dissection is suspected and in the differential as Dr.
Deiter’s note indicates it was and Dr. Issakhanian admitted it was
during her neurology exam, then the standard of care requires it be worked
up and ruled out with a scan such as MRI/MRA of the head and neck within
Allegations by Defendants: Respondents denied that their care and treatment of Mr. Howard was below
the standard of care, or that they failed to meet accepted standards for
adequate medical care. Specifically, Respondents denied that Mr. Howard’s
complaints and symptoms leading up to his stroke were typical of TIA.
Respondents further denied that TIA of the retina was still in the differential
diagnosis following Dr. Issakhanian’s history and physical.
Injuries/Damages: Mr. Howard has not been able to return to work since the stroke. He has
no use of his left arm and has left-sided weakness. During his ICU stay
following the stroke, Mr. Howard contracted a hospital-acquired infection
which led to DIC. Due to the extensive infection, Mr. Howard underwent
bilateral below-the-knee amputations. He is wheelchair-bound and needs
assistance with all aspects of his life. He also has some cognitive and
mental deficits from his stroke. He requires assistance with activities
of daily living. His future care needs were estimated in the millions
Results: After ten days of arbitration, three arbitrators awarded $5 million to
the Howards. In addition, Mrs. Howard received $23,697.54 in interest
pursuant to Code of Civil Procedure section 998.
Failure to Timely Diagnose Thyroid Cancer- $900,000.00
Facts: Jane Doe, a 55-year-old senior paralegal, complained of escalating symptoms
of coughing up blood, fullness in her throat, occasional hoarseness and
difficulty breathing over the course of four years. She was diagnosed
with gastroesophageal reflux disease (GERD). A physician’s assistant
performed a flexible sigmoidoscopy and found no abnormalities. Physicians
suggested she lose weight. Under a medically-supervised weight loss program,
Jane Doe lost 75 pounds, but continued to be symptomatic. Her throat was
chronically scratchy, irritated and bothersome, and her neck was sensitive
to pressure. A second physician’s assistant performed another flexible
sigmoidoscopy which was found to be negative.
Jane Doe’s primary care physician was on maternity leave and she
was seen by another physician, who referred her to the ENT service. She
told Jane Doe to ask to be seen by a physician, not a physician’s
assistant. Jane Doe was finally seen by an otolaryngologist who performed
and flexible sigmoidoscopy and found a large growth in the throat. A CT
scan and needle biopsy confirmed malignancy with spread into the neck,
throat and chest. She was diagnosed with Stage IV thyroid cancer.
Contentions: Jane Doe alleged that based on the constellation of symptoms, including
throat bleeding, fullness of the throat, sore throat and hoarseness, the
standard of care required her healthcare providers to rule out a thyroid
issue. She also alleges that the physician’s assistants who performed
the flexible sigmoidoscopies should have been supervised by a physician
or a physician should have performed the procedures. Given the escalating
and persistent symptoms, a CT scan and/or ultrasound was required.
She alleges that had proper scope procedures been performed and other diagnostic
procedures been done two years prior, they would have revealed early stage
I or stage II thyroid cancer, and that most thyroid cancers are diagnosed
at an early stage with high curability rates. She alleges that Roe Medical
Group and Roe Healthcare are part of an integrated healthcare system and
that there was a systemic failure to treat her.
The defendants denied that their care and treatment was below the standard
of care, or that they failed to meet accepted standards for adequate medical care.
Injuries: Jane Doe underwent four surgeries in January and February 2010, which
left her with hypothyroidism and hypocalcemia. She required two rounds
of radioactive iodine therapy and had to remain in isolation for one week.
Side effects included burned tongue, stomach pain, nausea, vertigo, loss
of taste, swollen salivary glands and premature menopause. Her fatigue
greatly interferes with her enjoyment of life. She continues to suffer
from hypothyroidism, chronic fatigue and hyper-symptoms of menopause.
Damages: Jane Doe worked as a senior paralegal at a local law firm for approximately
10 years. According to the National Vital Statistics Reports, a woman
of plaintiff’s age would have a normal life expectancy of an additional
approximate 28 years. Plaintiff’s life will likely be cut substantially
short by the delay of her cancer diagnosis.
In addition to income loss, plaintiff claimed the maximum amount of non-economic
damages allowed under California law of $250,000. Her husband for almost
34 years sought recovery for loss of consortium. He has had to compensate
for his wife’s lack of energy and has taken on much of the household
services. He claimed non-economic damages of $250,000.
The case resolved at mediation for $900,000.
Failure to Diagnose Pneumonia and Pleural Effusion- $543,923.00
Facts: At the time of the events giving rise to this action, Claimant Denise
X was 37 years of age, employed by Kaiser as a histologist, and was successfully
raising five children on her own. Denise X and her identical twin sister,
Bernice X, who lived nearby, had been very close all of their lives. Bernice
X was a witness to these events, and presented a claim for bystander damages.
In June of 2005, Denise X developed pneumonia, for which she was initially
treated with antibiotics that provided some improvement. When her condition
worsened in early July, she presented to the Sonora Regional Medical Center
(not a party to this action) and was diagnosed with right mid-lobe pneumonia.
A stronger antibiotic was prescribed, and she was instructed to follow
up with her own primary care physician through Kaiser if she did not improve.
When seen on July 21, 2005, in the Emergency Department of the local Kaiser
hospital, Denise X had developed a productive green cough, fever and right-sided
rib pain. The ER doctor was planning to discharge her, but her symptoms
became worse while she was in the ER and the nurse there did not let her
go immediately. At that point, her pain had gone from a 3 out of 10 to
10 out of 10; x-rays indicated she had an infiltrate over the right midlung
zone which was suspicious for an effusion; she had diminished lung sounds
on the right, was breathing shallowly and had increased respirations,
along with a fever and elevated white blood cell count – classic
symptoms of pleuritis. However, instead of admitting her per Kaiser’s
own protocol and despite pleading from Bernice X to do so, Kaiser’s
s physicians sent Denise X home, without antibiotics, but with a rib belt
– which made it even more difficult for her to breathe – and
a prescription for Tylenol with codeine.
Over the course of the next two days, Bernice X repeatedly contacted Kaiser’s
Nurse Advice Line reporting that her sister’s condition was worsening.
She was told that the pain and breathing difficulties were to be expected
because of the suspected rib fracture. Finally, on July 23rd, Bernice
X took Denise X to an emergency room in a facility which was not part
of the Kaiser system, where x-rays showed a complete collapse of her right
lung, and ER personnel drained over 1200 cc of fluid from that lung. She
underwent a thoracotomy and decortication, and remained intubated and
sedated until August 2nd. The following day, Denise X reluctantly agreed
to transfer to a Kaiser facility after being told that Kaiser would no
longer pay for her care at the independent hospital, and that she in fact
could lose her home if she refused the transfer.
Ironically, Denise X lost her job as a histologist with Kaiser, since she
was physically unable to continue working following Kaiser’s negligent
care and treatment of her. The loss of that job also resulted in Denise
X losing her health care coverage and benefits.
Contentions: Claimant’s pulmonologist expert Michael Kalafer, M.D., testified
that Denise X had a pleural effusion and pneumonia when she presented
to the Kaiser ER on July 21st. Claimant’s emergency medicine specialist,
Michael MacQuarrie, M.D., testified that Kaiser’s emergency room
physicians clearly violated the standard of care in failing to recognize
active pneumonia, failing to order more films to rule in or rule out pleural
fluid, failing to start antibiotics, failing to perform a thoracentesis,
and failing to consider the patient for admission.
Defendants alleged that at all times they complied with the standards of practice.
Injuries/Damages: Denise X continues to suffer repeated bouts of pneumonia, as well as suffering
from weakness, fatigue and chronic pain. She has difficulty sleeping,
both because of pain and because of the trauma from the injuries sustained
as a result of KAISER’s negligence. In addition, claimant’s
expert neuropsychiatrist testified that she would not be able to begin
a vocational re-entry program for the next six to twelve months.
Results: The matter was arbitrated before the Hon. Richard L. Patsey (Ret.), J.A.M.S.,
in Walnut Creek, California, for five days. Bernice X decided against
pursuing her claim for bystander damages. Claimant Denise X received an
Arbitration Award in the amount of $543,923.00. Kaiser made no offer of
settlement before the Arbitration.