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Reheat Steam Pipe Fails- $15,000,000.00

Facts: John Doe was an engineer in his mid-20s working at a power plant. He was standing beneath a 30-inch reheat steam pipe when it burst, spewing forth 1000-degree-plus Fahrenheit steam. The incident killed some employees. Mr. Doe suffered third-degree burns over the majority of his body and suffered an anoxic brain injury when his heart stopped as a result of the trauma. He survived but underwent numerous painful skin grafts and painful rehabilitation. His brain injury is permanent.

Contentions: Plaintiff sued the general contractor who built the plant and the subcontractor who manufactured the pipe. Through the course of discovery, plaintiff learned that the pipe failed because there was a defect in the weld.

Injuries/Damages: Plaintiff required numerous skin grafts and painful rehabilitation. He continued to require extensive physical therapy to prevent contractures. He was wheelchair bound and required assistance for all activities of daily living. He was no longer able to work.

Delay in Diagnosis of Gastric Bypass Complication- $8,999,998.00

Settlement - 9/23/2015

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 was obtained.

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 was septic.

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 repair surgeries.

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.

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 24-48 hours.

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 of dollars.

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.

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 of bed”.

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.

Brain Injury from Overdose of Insulin- $4,043,728.00

Facts: On May 4th, Plaintiff, a 43-year-old electrician, was in a serious accident in which he was struck by a car while he was riding his bicycle. He was taken to UCSD Medical Center and admitted with multiple injuries, most notably a closed head injury and fractures to his ribs and left lower leg. Over the next several weeks, Plaintiff exhibited many positive signs concerning his improving neurologic status. However, on May 21st, while undergoing a flap/graft procedure, he was negligently administered 1,000 units of insulin by an anesthesia resident, who then attempted to correct the situation by giving him 60-70 amps of D50, sending Plaintiff’s blood glucose to 3,800. This caused Plaintiff to develop seizure activity and caused a global anoxic cerebral injury, secondary to hypoxia, hypotension and metabolic derangement. This event also caused Plaintiff to suffer a hyperosmolar nonketotic coma, complicated by acidosis, hypotension and seizures refractory to medication.

Contentions: Plaintiff claimed gross negligence by UCSD physicians and health care personnel, resulting in massive brain injury to Plaintiff.

Defendant argued that Plaintiff was destined to have the same long-term neurologic damage that he lives with presently. They denied that any act or omission on the part of its employees caused or contributed to cause his condition.

Injuries/Damages: Plaintiff suffered a significant brain injury. The Defendant’s expert, Dr. Hedge, was of the opinion that but for the May 21st insult, Plaintiff would have been rehabilitated to the point where he could have lived independently, could have been able to communicate and ambulate, and would have had full bowel and bladder function.

Residuals: Plaintiff is now, and will remain, unable to care for himself. He requires 24-hour care and is totally dependent on others for all activities of daily living. He is now, and will be for the remainder of his life, unemployable.

Past medical costs of $408,745 were covered by Medi-Cal or private insurance. Future medical costs were calculated between $2,720,491 – $7,210,634. Loss of earnings was calculated at $1,000,000 past and future.

Special Notes: Settlement of $4,043,728 present value. Defendant agreed to satisfy any lien claim by MediCal, or other entity, concerning Plaintiff’s medical care administered in any of its facilities. $900,000 was payable in cash and an additional $13,500 per month, guaranteed for 7 years or Plaintiff’s life, whichever is longer, increasing and compounding annually at 3%. $150,000 payable in 12 years, contingent upon Plaintiff’s being alive.

Physician Injured in Auto Accidents- $3,100,000.00

Facts: On the evening of October 16th, Plaintiff Jane Doe, M.D., and defendant Ms. M were traveling northbound on Interstate 15. Dr. Doe was driving her automobile, and Ms. M was driving her company’s pickup truck. Traffic was very heavy. According to Defendant Ms. C, she had been driving along the I-15 when Ms. M cut in front of her. Ms. M had enough time to straighten out and had enough space in front of her to see Dr. Doe’s entire vehicle as well. At approximately 6:30 p.m., Dr. Doe stopped her vehicle for traffic. She suddenly felt Ms. M’s truck smash into the back of her car, pushing her car forward at least 5 to 6 feet. The evidence indicates that Ms. M was so close to Dr. Doe’s vehicle, that she did not even have time to initiate a skid before she hit Dr. Doe’s car. The first significant impact was immediately followed by a second minor impact to her rear when Ms. C’s SUV hit Ms. M’s truck on the rear, pushing Dr. Doe’s sedan forward again. According to both Ms. M and Dr. Doe, the first impact was greater than the second impact. All cars then pulled over to the side of the road to await police assistance.

Injuries: At the time of this accident, Dr. Doe had a busy neurology practice and specialized in pain management. Prior to this accident, despite having degenerative changes in her neck and low back, Dr. Doe never required surgery, physical therapy, injections or treatment of any kind, other than some pain medication. Dr. Doe was taken by ambulance from the scene of the accident to the hospital for treatment of her neck and back pain. She returned to urgent care two days later for more pain medication due to her neck and back pain. Within a few days, Dr. Doe sought treatment with a neurosurgeon, who diagnosed her with symptomatic myelopathy and radiculopathy which ultimately required surgery. She underwent an anterior cervical decompression and fusion of the C5-6 level. Dr. Doe still suffers from debilitating radiating lower back pain and neck pain and now undergoes physical therapy and pain management treatments several times a week.

Dr. Doe’s neurologist and pain management specialist indicated that the automobile accident significantly exacerbated the preexisting degenerative changes in her cervical and lumbar spine, causing new and exacerbated symptoms, including radiculopathy and myelopathy, significantly increasing her need for pain medication. In addition, Dr. Doe has been advised that she needs to undergo a posterior lumbar interbody fusion with instrumentation at L5-S1.

Damages: Dr. Doe was unable to attend to her medical practice as a result of the injuries sustained in the accident, and the subsequent surgery, for a total of almost two months. She has also had to reduce her patient population and reduce the number of hours she treats patients each day, requiring breaks between patients.

Past medical and related expenses were calculated at $112,038.33; future medical care costs have a present value of $772,779.00, according to plaintiff’s life care planner and economist. In addition, it is the opinion of vocational rehabilitation expert that she will more than likely never return to the level of work she was able to perform prior to the incident.

Conservatively, plaintiff’s economist calculated past lost income at approximately $158,126 and future income loss numbers between $4,312,818 and $9,232,662 (present value).

Contentions: Plaintiff alleged that Ms. M failed to travel at a reasonable speed to maintain the distance necessary to stop her vehicle in traffic conditions, and failed to maintain a safe distance in which to stop her vehicle without striking Dr. Doe’s car the first time and injuring her. As a result of the impact between Ms. C and Ms. M’s truck, Ms. M then struck Dr. Doe’s sedan a second time. Plaintiff alleged that Ms. C also failed to travel at a reasonable speed to maintain a safe distance. The police report cited both defendants as being liable for the incident. In addition, Ms. M’s own accident reconstruction expert testified that had Ms. M’s vehicle not struck Dr. Doe’s vehicle, Ms. C would have had enough time to avoid striking Ms. M’s vehicle and avoid the resultant second impact with Dr. Doe’s vehicle.

Defendants alleged that Dr. Doe was contributorily negligent in stopping her vehicle suddenly and unexpectedly, causing the collisions. Defendants’ biomechanical experts testified in deposition that the impact was low speed and not significant enough to cause a permanent injury. Defendants asserted that plaintiff had been taking narcotic pain medication on a daily basis for two years before this accident. Defendants’ expert also testified that plaintiff was capable of working full-time for the remainder of her worklife expectancy. This was supported by plaintiff’s treating neurosurgeon, who testified in his deposition that she should be able to return to work.

Special Notes: A mediation was held before the Hon. Leo S. Papas (Retired). Defendants’ settlement offers at that time totaled $1,089,514.85, comprised of $100,000.00 already recovered from defendant Ms. C and an additional $989,514.85 offered by Ms. M and her company’s primary insurance carrier. Plaintiff made a counter-offer of $6,500,000.00 in new money, for a total demand of $7,489.514.85.

Defendant Ms. C settled for her policy limits in the amount of $100,000.00. At trial call, Defendants Ms. M and her Company settled for the policy limits of their primary insurance policy, $989,513.85, with an additional payment by the excess carrier in the amount of $2,010,486.15, bringing the total settlement amount to $3.1 million.

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