Case Results

    • 16-Year-Old Dies After Performing Fitness Test At School
      16-Year-Old Dies After Performing Fitness Test At School $400,000.00

      Facts: On April 23rd, 16-year-old Arturo Espino was performing a state mandated physical performance test at Sweetwater High School. He was involved in the six-minute jog/walk when he complained of leg cramps and exhaustion to friends and sat down on the grass infield of the football field and running track. According to an eyewitness, when the test was over and the students were heading in, Arturo was still sitting up on the football field. Defendant’s employee, a substitute P.E. teacher, either saw Arturo and noted nothing unusual about him or did not see him and proceeded in to open the lockers without him. Arturo was subsequently discovered approximately 15 to 20 minutes later by a friend who shared a locker room, unconscious and not breathing. After being advised that there was a student on the field who was unconscious and not breathing, the school nurse proceeded to wheel a wheelchair to the site and also stopped to make a phone call to see that the paramedics were called to the scene. The evidence indicated that the fire department arrived within minutes after notification. The California Physical Performance Test which Arturo Espino was performing had procedural policies (disputed by defendant) and suggestions set forth in a manual. According to this manual, which was referred to by the California Administrative Code, only ten students were to be performing this test at a time, only two tests were to be administered on any one day, and there was a specific warning to the teacher administering the test to watch for signs of poor reaction to exercise and specifically advised of the danger involved in attributing poor reaction to poor pupil attitude until physical causes have been ruled out.

      Contentions: Plaintiffs contended there were 25 to 60 students performing the test, that there were at least three different tests being performed during that period, supervised by three P.E. teachers, and that the supervision was inadequate. Plaintiffs further contended that the school nurse, with knowledge that she was the only person on campus who was CPR trained, failed to react promptly to an emergency situation. Plaintiffs further contended that had Arturo Espino received CPR within six minutes of entering ventricular fibrillation, he would have survived.

      Defendant contended that the supervision was adequate and the school was not required to comply with the suggestions set forth in the California Physical Performance Test manual. Defendant further contended that there was no causation.

      Injuries/Damages: Death of 16-year-old Arturo Espino. Plaintiffs’ experts testified that Arturo Espino had no underlying cardiac disease and that he simply suffered from a dysrhythmia. Both further testified that a person such as Arturo was extremely easy to resuscitate once that person receives CPR. One expert testified that Arturo Espino had an 80% to 90% chance of survival had he received CPR within six minutes of his entering ventricular fibrillation.

      Funeral and burial expenses were $1750. Plaintiffs alleged that Arturo had contributed approximately $900 per year to the family during the last three years of his life, and intended to continue to contribute to the family income as he went on through school.

      Special Notes: Prior to trial, plaintiff served an offer to compromise for $175,000 per CCP §998; defendant offered to compromise for $20,000 per CCP §998. Plaintiffs’ attorney asked the jury to award approximately $295,000. Defendant’s attorney asked the jury for a defense verdict. The jury was out two hours after an eight-day trial. Defendant’s motions for new trial and judgment notwithstanding the verdict (JNOV) were denied.

    • Military Doctor Refuses Request for C- Section
      Military Doctor Refuses Request for C- Section $1,259,970.00

      Facts: Prior to her pregnancy with Minor Doe, Jane Doe had given birth to a daughter weighing 9 lbs, 7 oz. A shoulder dystocia (anterior shoulder becomes impacted behind the pubic symphysis) was encountered. The delivering physician, through the use of an appropriate maneuver, was able to deliver the child without injury. Following the delivery, the parents were advised that with future pregnancies, they should inform the treating OB/GYN that a shoulder dystocia had been encountered previously and should discuss whether a C-section should be considered. The parents were aware this was particularly true if there was any reason to believe that a subsequent child would be larger at the time of delivery than was their daughter.

      In the spring of 1997, Jane Doe became pregnant again. Her husband was then a captain on active duty in the United States Marine Corps, stationed at the Marine Corps Recruit Depot in San Diego. Because of previous problems with medical care at Balboa Hospital (the Naval Medical Center) and their concerns about the potential complications associated with her pregnancy, the parents made an application for Jane Doe to receive care outside of the military system. That request was made to Manuel Rivera, M.D., who was head of Obstetrics and Gynecology at Balboa Hospital at the time. He denied the request. Rivera advised the parents that he had beds available and would handle the pregnancy himself as he was the “high risk” OB/GYN at Balboa.

      On numerous occasions throughout the course of her pregnancy, the parents advised Rivera about the prior shoulder dystocia and their concerns for the pending delivery. They made multiple requests for an elective C-section because of their concerns about the size of the baby. Rivera refused those requests and also refused to refer Jane Doe to another physician. At the time of birth on January 5th, when Rivera attempted to deliver Minor Doe vaginally, a shoulder dystocia situation was encountered. Minor Doe weighed nearly eleven pounds at birth. Shortly after delivery, he demonstrated evidence of substantial traction being applied at birth. He had bruising on his head, left earlobe, left lateral portion of his back near his armpit and shoulder, and his left arm was completely limp. He also suffered a brachial plexus injury.

      In the first few months following their son’s birth, and after an intensive search by the parents to find the best care for his brachial plexus injury, they came upon two surgeons at Texas Children’s Hospital with impeccable reputations. The government not only allowed them to have Minor Doe treated there, but also agreed to pay for it, finding it to be “in the Command’s best interest.”

      Contentions: Jane Doe and Minor Doe sued the United States. They alleged that Rivera applied excessive downward traction to Minor Doe’s head and neck to remove him from the birth canal. (At no time during the process was there any evidence of fetal distress or any evidence of a developing fetal hypoxia.) They also alleged that had Jane Doe been offered an elective C-section, she would have accepted, and to a very high degree of medical probability, the injuries to both Minor Doe and Jane Doe would not have occurred.

      The defendant contended that Minor Doe’s injury occurred as he traveled down the birth canal, as a result of the natural forces of labor and before the delivery actually occurred, and that Rivera complied with the standard of care.

      Injuries/Damages: Brachial plexus traction injury; emotional distress; incontinence; short bowel syndrome; shoulder dystocia

      Examination at Texas Children’s revealed that the brachial plexus injury to Minor Doe involved all five levels of the brachial plexus including an avulsion at C7 (the nerve was literally torn away from the spine) and ruptures to C5 and C6. Minor Doe has undergone corrective surgeries at Texas Children’s. He will need additional surgeries and additional medical care throughout the course of the rest of his life. Minor Doe will be permanently disfigured. His left arm will be smaller than the right and he will have a winged scapula. His left arm will be limited in use to that of a “helper arm.” Future surgeries will probably include a shoulder fixation, which would basically leave him with no movement in the shoulder whatsoever or needing a shoulder replacement. Without some intervention with the shoulder, he will likely continue to have chronic dislocations throughout his life. It is also likely that Minor Doe will develop scoliosis and arthritic pain, and that he will have difficulty with dexterity, supination and pronation of his left hand. He is also more likely to develop arthritic changes associated with this injury. Jane Doe suffered bowel incontinence and a significant sphincter defect. She also claimed emotional anguish over witnessing her son’s injuries.

      The dollar value of the damages as to both Minor Doe and Jane Doe was calculated by their economist. Those calculations included past economic loss of about $6,000 and future economic loss, present value, of between $1,343,000 and $51,546,000. The future gross economic loss was valued at between $5,871,000 and $6,555,000.

      Special Notes: Following a bench trial, the court found in favor of the plaintiffs that they were entitled to recover from defendant as follows:

      • As to Jane Doe, non-economic damages of$250,000 and economic damages of $22,480, for a total of $272,480, present value.
      • As to Minor Doe , non-economic damages of $250,000 and economic damages of $737,490, for a total of $987,490, present value.

      Total judgment for plaintiffs was $1,259,970, present value. The court also awarded costs to plaintiffs in an amount to be determined.

    • Delay in Diagnosis of Prostate Cancer
      Delay in Diagnosis of Prostate Cancer $550,000.00

      Facts: Robert W was a healthy, productive man who enjoyed his lifelong employment as a construction superintendent. He and Patricia W have been happily married for over thirty years, and have two adult children.

      On January 30th, during a routine physical examination conducted by Mr. W’s primary care physician, defendant John D. Hill, M.D., blood was drawn from plaintiff, then 52 years of age, and submitted for a PSA test. The results of this test showed a PSA level of 2.0. On December 23rd, two years later, blood was again drawn from Mr. W following a physical exam by Dr. Hill on December 13th, and submitted for a PSA test, among other testing. The results of that test showed a PSA level of 4.2, and the LabCorp report dated December 27th notes the result is high. However, Dr. Hill did not inform Mr. W of the results of the test, nor did he recommend any follow-up care or re-check of his PSA level.

      Dr. Hill’s office notes reflect a visit by Mr. W on January 9th. There is no reference in that note to any discussion about Mr. W’s elevated PSA, the need for additional follow-up lab work, or referral to a urologist. Mr. W testified in his deposition he had no memory of this visit occurring.

      Despite the fact that Dr. Hill saw Mr. W for health concerns in August of the 2001, August of 2002, and June of 2003, it was not until Mr. W returned to Dr. Hill having had his PSA re-checked in March of 2004 by another physician when it was found to be 5.25, that he learned of his earlier elevated PSA reading.

      Only then was Mr. W referred to a urologist, and underwent a biopsy which revealed an adenocarcinoma of both the right and left lobes of the prostate. In September of 2004, Mr. W underwent a prostatectomy that revealed the nature and extent of his prostate cancer. Surgical pathology revealed an aggressive lesion. There were positive margins, seminal vesicle involvement with evidence of vascular invasion and perineal invasion, and he was staged as a 3bMO.

      Since the surgery, Mr. W has undergone hormone therapy. Post-operatively, his PSA level began to rise again, which is a poor prognostic sign. It is anticipated that the hormone therapy can control his prostate cancer for approximately 18 months, after which, it will mutate to a form resistant to the hormone therapy and spread metastatically.

      Contentions: Plaintiffs alleged that Dr. Hill violated the standard of care by failing to immediately refer Mr. W to a urologist for biopsy in December of 2000/January of 2001, or immediately had his PSA level re-tested, as well as testing for the association of free to bound PSA, and then referred to a urologist in short order. Defense’s expert agreed that the standard of care required Dr. Hill to advise Mr. W that his PSA of 4.2 was abnormally high and that he required follow-up blood works within one to six months. Further, plaintiffs allege that Dr. Hill again violated the standard of care on each and every subsequent occasion he saw Mr. W, by failing to advise Mr. W of his abnormal PSA, failing to refer him to a urologist or immediately re-checking the PSA level.

      It is Dr. Hill’s position that he advised Mr. W of the abnormally high PSA of 4.2 in January of 2001 and provided him with lab slips to have his PSA re-checked in August of 2001. Defendant alleged that Mr. W simply failed to get the lab work done.

      Injuries/Damages: Mr. W’s prostate cancer went undiagnosed and untreated for approximately three and a half years. By the time it was diagnosed and treated, it had escaped the prostate capsule and had become incurable. There is no cure for Mr. W’s prostate cancer. The only treatment available to him will be palliative. Plaintiffs’ experts have testified that Mr. W has a statistical probability of death within five years of the date of diagnosis. Mrs. W also presented a claim for loss of consortium.

      Special Notes: Plaintiffs made an initial settlement demand of $936,500, which included $250,000 for the settlement of Mrs. W’s potential wrongful death litigation. Defendant’s response to the demand was an offer to settle for $400,000.

      On the day before trial was to begin, plaintiffs agreed to attend a mediation hearing before Craig D. Higgs, Esq. in an attempt to resolve the matter. The case was settled on February 13, 2006, as to both plaintiffs for $550,000. The potential wrongful death action was not included in the final settlement.

    • Palacios v. Alan Horowitch, M.D.
      Palacios v. Alan Horowitch, M.D. $333,000.00
    • Chemotherapy Mix- Up Injures Child
      Chemotherapy Mix- Up Injures Child $558,000.00

      Facts: A year after Minor C.R. was born, he was diagnosed with a medulloblastoma (brain tumor) which was surgically removed. At the time, the minor plaintiff was placed on chemotherapy under the direction of Kaiser Hospital, through its employee, Dr. Sam Lew. The chemotherapy involved the administration of Cytoxan and Cisplatin. The prescribed dosage was 700 mg of Cytoxan and 40-45 mg of Cisplatin. The chemotherapy was administered in three-month cycles. The Cytoxan was administered during the first two months of each cycle and the Cisplatin was administered during the third month. On September 2nd, approximately one month before the plaintiff completed his chemotherapy, he was admitted to Kaiser for the Cytoxan treatment. Three hours after the administration of the Cytoxan, the pharmacist noticed that an error had been made in its preparation. Instead of receiving 700 mg of Cytoxan, the plaintiff was administered 70 mg of Cisplatin (twice the dosage of the incorrect chemotherapy drug).

      Contentions: Plaintiff contended that the defendants were negligent in failing to administer the proper medication. The plaintiff also contended that he suffered a permanent hearing loss and decreased kidney function that would subsequently lead to kidney failure as a result of the nephrotoxicity caused by the administration of the Cisplatin. The defendant admitted liability, but contended the plaintiff s kidney function is in the normal range at the present time. The defendant also contended that it was not certain that the plaintiff would develop kidney failure. The defendant contended that it was speculative to award damages for future medical care for this “possibility.” Further, the defendants contended that the plaintiff’s life expectancy should be significantly reduced because of his brain tumor. The plaintiff refuted this contention because his brain tumor had not recurred.

      Injuries/Damages: The minor plaintiff suffered high frequency hearing loss and kidney function damage. Future medical expenses were calculated between $220,000 and $950,000 (present value). Future lost earnings were calculated between $143,000 and $500,000 (present value).

      Special Notes: The plaintiff demanded $350,000, which included $150,000 in cash, plus an annuity with a present value of $200,000 that would have paid out approximately $2,000,000 assuming a normal life expectancy. The plaintiff filed a
      C.C.P. section 998 offer to compromise for $695,000. The defendant offered $125,000 in cash, plus the $200,000 annuity.

      Plaintiff was awarded $558,000 (present value). The plaintiff received $143,00 for future lost earnings, $165,00 for future medicals and $250,000 for general damages. The case later settled for $205,000 in cash plus annuities which will pay out a total of $2.7 million if the plaintiff reaches 60 years of age.

    • Orthopedic Surgeon Fails to Repair Dural Tears
      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 laminectomy bilaterally.

      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.

      Injuries/Damages: 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 her bowel.

      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.

    • Elevated PSA
      Elevated PSA $850,000.00

      Facts: Plaintiff, an active, 65-year-old, had always been in excellent health. He and his wife have been married for 30 years.

      Plaintiff had been receiving his medical care from MEDICAL GROUP for a number of years. Dr. Roe became his primary care physician in March of 1995. At that time, Plaintiff was 56 years old.

      During a routine physical on March 1, 1995, on digital rectal exam, Dr. Roe noted a small left posterior nodule on Plaintiff’s prostate. He confirmed in his deposition that such a finding made Plaintiff’s prostate exam “abnormal.” A PSA done from blood drawn on that date was found to be 3.1 (normal range is 0 to 4). At that time, no additional recommendations were made by Dr. Roe to Plaintiff concerning his prostate.

      Plaintiff’s next complete physical examination by Dr. Roe was on January 19, 1998. The prostate exam was listed as normal at that time. A PSA test was not done.

      On April 14, 1998, Plaintiff sent a fax to Dr. Roe indicating that as part of an insurance examination, the lab work showed a PSA of 5.3. Plaintiff wrote a note on the letter to Dr. Roe saying he thought he had had a normal PSA in January, and asked the doctor to call him. Dr. Roe indicated that the PSA had not been re-checked in January and instructed Plaintiff to come in for a test. Blood was re-drawn on April 14, 1998, and the PSA came back with a reading of 3.5. Dr. Roe communicated with Plaintiff that his PSA was within a normal range and nothing further needed to be done, and not to worry.

      The next complete physical examination done by Dr. Roe on Plaintiff was on March 8, 2001. At that time, it was noted that Plaintiff’s father died of liver cancer, and that he had prostate cancer as well. The digital rectal exam done at that time again showed a small left posterior nodule on the prostate – an abnormal finding. The blood collected on that same date, March 8th, returned a PSA of 4.7, clearly abnormally high. Dr. Roe signed off on the results of the lab work, including the PSA, confirming that he was aware of it. Plaintiff also underwent a sigmoidoscopic examination, on April 10th, which revealed that the prostate was enlarged.

      On April 16, 2001, Plaintiff called and left a message for Dr. Roe asking that the doctor call him with the test results. Again, Dr. Roe’s handwritten notes indicate he received the message, and called Plaintiff to tell him that his labs were “within normal limits.” No additional follow-up was suggested concerning the abnormal prostate exam or the abnormal PSA.

      Plaintiff returned for his next complete physical exam on February 14, 2003. At that time, his prostate exam showed it to be 1+ enlarged, as well as firm on the left without discrete nodule. In his note, Dr. Roe indicated that if Plaintiff’s PSA was in the 3 to 4 range, that Plaintiff would be referred to a urologist. Plaintiff’s PSA came back at 14.1.

      On self-referral, Plaintiff was seen by urologist Stephen Bridge on March 26, 2003. A transrectal ultrasound and biopsy were performed, which showed prostate cancer in both the right and left lobes of the prostate, although the left was the primary lobe involved. Bone scans subsequently showed that Plaintiff had metastatic spread in the right pubis, the right femur and the right tibia. Plaintiff was started on androgen ablation (hormone) therapy and scheduled to receive an injection of Lupron. As the cancer had already spread beyond the prostate, surgery has not been and will not be an option for Plaintiff.

      Injuries/Damages: Plaintiff’s prostate cancer was not diagnosed until there was already distant metastatic spread. At this point, there is no treatment to provide cure for Plaintiff’s prostate cancer. The treatment can only be palliative. Dr. Millard, a treating physician not retained as an expert, testified that the statistical probability is that Plaintiff will not survive more than three years from the time of his diagnosis.

      Plaintiff claimed general damages in the amount of $250,000.00, and economic damages in the amount of $667,628.00, which did not include out-of-pocket future medical care needs.

      Although not a named plaintiff to the lawsuit, Plaintiff’s wife’s future claim for the wrongful death of her husband was also a consideration in this case. She claimed the maximum general damages amount allowed under California law of $250,000.00 for her potential wrongful death action.

      Contentions: This is a clear case of liability. Defendant MEDICAL GROUP’s own records contained an algorithm for prostate cancer screening used there. This document indicates an abnormal digital rectal exam is grounds for referral to a urologist for a biopsy. Further, an abnormal PSA (more than 4.0) is a separate ground for referral to a urologist.

      Plaintiff alleged that the first abnormal prostate examination, i.e., the exam showing the nodule on the left lobe of the prostate in March of 1995, required at least a discussion by Dr. Roe with Plaintiff about the need for referral to a urologist to determine if a biopsy needed to be done.

      Plaintiff alleged there was a second violation of the standard of care in 1998, when Plaintiff had a PSA of 5.3 as part of the insurance examination. Even though the subsequent PSA came in at 3.5, the fact of the matter is that these PSA’s can fluctuate, and this should have been a second opportunity for referral to a urologist.

      Lastly, plaintiff alleged there was no doubt that in March of 2001, with an abnormal prostate examination, i.e., a nodule on the left lobe of the prostate and a PSA of 4.7, that Plaintiff should have been referred to a urologist for a biopsy at that time.

      Experts retained by plaintiff, including a prominent urologist at Cedars-Sinai, Dr. Brosman, who specializes in prostate cancers, as well as a prominent pathologist, Dr. Contardo, were prepared to testify that had this diagnosis been made, as late as March of 2001, Plaintiff’s cancer would have been confined to the prostate and he would have had an 80 90% probability of five-year survival and cure. He would have needed surgery only.

      Defendants alleged that they complied with the applicable standards of care, and that there was no causation.

      Special Notes: Plaintiff and his wife agreed to accept $850,000.00 in full settlement of both Plaintiff’s claims against the defendants, and his wife’s claim for her potential wrongful death action. The settlement occurred before expert witnesses were deposed.

    • John Doe v. Roe Company, et al.
      John Doe v. Roe Company, et al. $200,000.00
    • Rubidoux, et. al. v. Counrty Hills Health Center, Jassmann, M.D. et. al.
      Rubidoux, et. al. v. Counrty Hills Health Center, Jassmann, M.D. et. al. $348,000.00
    • Brown v. Kaiser Foundation Health Plan, Inc.
      Brown v. Kaiser Foundation Health Plan, Inc. $678,000.00
    • Jane and John Doe v. Doctor and Hospital
      Jane and John Doe v. Doctor and Hospital $340,000.00
    • Elevated PSA and Enlarged Prostate
      Elevated PSA and Enlarged Prostate $400,000.00

      Facts: A $400,000 settlement was reached in San Diego between the plaintiffs, a 62-year-old retiree and his wife, and the defendants, a doctor and his medical center, where the doctor allegedly failed to follow up on a slightly elevated PSA score until the retiree’s prostate cancer had reached an advanced stage. When plaintiff John Doe had his PSA score tested by the defendant, it was measured at 4.1. The normal range is said to be 0-4. At that time, the defendant did not order any followup. Two years later, a digital rectal examination during a physical conducted by the defendant in January revealed that the patient had an enlarged prostate. His PSA test score at that time registered 4.8. Once again, no followup was ordered. By December the patient’s PSA had dropped to 4.5. It was not until July of the following year, when John Doe’s PSA had risen to 10.2 that the defendant decided to order additional tests which revealed advanced prostate cancer.

      Contentions: Failure to follow-up on slightly elevated PSA in violation of the standard of care. Defendants denied any negligence.

      Injuries/Damages: John Doe underwent months of hormonal therapy, had a radical prostatectomy, and will probably need radiation therapy. His surgery left him permanently without sexual function. Further, his recent positive tests have incidated the continued presence of the antigen. Mary Doe sued for loss of consortium.

      Special Notes: Plaintiffs demanded $501,385; Defendants offered $225,000.

    • Delay in Treating Postop Hematoma
      Delay in Treating Postop Hematoma $800,000.00

      Facts: This 55-year-old plaintiff worked many years as a distributor of newspapers for the Union-Tribune Publishing Company. During his work off-loading and unloading bales of newspapers from trucks, he suffered several back injuries which left him with chronic pain. He had several laminectomies and eventually a fusion in 1993.

      According to Dr. Altenau, the Plaintiff did well following these surgeries. However, he would wind up injuring himself again and eventually, additional surgery to the spine was not an option. In November of 1995, he underwent the placement of a dorsal column stimulator (DCS) by Dr. Altenau. The Plaintiff achieved what Dr. Altenau described as “superb” relief of pain with this device, which delivers electrical stimulation to the spinal cord to block pain impulses. It was determined post-operatively that while the Plaintiff was getting good relief of pain in his low back and down his right leg, the lead placed to cover his left leg was not operating correctly.

      While Dr. Altenau had considered the placement of the DCS device to be successful and felt that it was probable that the device could continue to be used by the Plaintiff to provide him with pain relief, he referred him to Dr. Finkenberg to see if the device itself could be adjusted. It was intended that the Plaintiff would return to Dr. Altenau for additional surgery if the device could not be adjusted. However, following the consultation with Dr. Finkenberg, Dr. Finkenberg had the Plaintiff admitted to Alvarado Hospital on May 13th, to replace the faulty lead as well as the DCS device itself. Surgery was done without apparent complication, and the Plaintiff was transferred to the medical-surgical floor for further recovery.

      As part of his post-operative care, he was to undergo a complete neurologic assessment every three hours by the staffing nurse. A motor and sensory exam was performed at both 9:00 p.m. and 12:00 a.m. These examinations were completely normal. At 3:00 a.m. on the morning of the 14th, the nurse did another complete assessment. At that time, his motor -examination showed zeroes in his lower extremities, and showed that he had lost all sensation.

      According to the nurse, she contacted Dr. Finkenberg at 3:10 a.m. and notified him of the situation. Dr. Finkenberg allegedly advised the nurse to have him lie still, and he should be all right in the morning. Dr. Finkenberg testified in his deposition that the nurse called him and told him that the Plaintiff was having difficulty moving his legs but that he asked her three times if he was still moving his legs and she answered yes. Dr. Finkenberg has also testified that he requested that the nurse follow up with the Plaintiff more closely and make neurologic assessments every hour, and to let him know if there was any other change in his condition.

      The nurse disputes ever receiving this order. Nothing was done for Plaintiff until after a second phone call was made by the nurse to Dr. Finkenberg at 6:00 a.m. At that time, Dr. Finkenberg carne into the hospital and went in to assist in surgery on another patient.

      The CT scan of Plaintiff revealed an epidural hematoma causing significant compression on his thoracic spine. At 9:30 a.m., he was finally taken to the operating room, where the hematoma was evacuated by Dr., Finkenberg. However, because of the sustained compression of the hematoma on his spinal cord, Plaintiff is and will remain a paraplegic at level T-6.

      Contentions: Plaintiff claimed Dr. Finkenberg admitted that this situation constitutes a medical and surgical emergency and had further admitted that if the nurse had relayed the information contained in the nursing records at 3:00 a.m. to him, the standard of care would have required him to immediately order a CT scan and immediately come in and do a decompressive procedure on an emergency basis. Either Dr. Finkenberg or Alvarado’s nurses, or both, violated the applicable standards of care. Plaintiff’s expert testified that had the standard of care been complied with, i.e. that a decompressive surgery was undertaken by as late as 6:00 a.m., that to a degree of medical probability, the Plaintiff would be walking today and would have full urinary function and continence.

      Defendant Finkenberg argued the nurses and Alvarado did not make clear to him the urgency of the situation in either the 3:00 a.m. or 6:00 a.m. telephone call. Defendant Alvarado argued its employees did notify Dr. Finkenberg of the situation promptly. They explained the symptoms to him during the early morning telephone calls. It was Dr. Finkenberg’s decision not to pursue the matter until several hours later.

      Injuries/Damages: Paraplegia at T6 and incontinence.

      Special Notes: Finkenberg was insured through CAP with a $1 ,000,000 policy limit. Based on the terms of the policy, its limit was constantly being reduced by any attorney fees and costs incurred by the insured. In September, Plaintiffs demanded the limits of Finkenberg’s policy in full settlement of the matter. The case was subsequently settled as to Alvarado Hospital for a confidential amount one week before trial.

    • Slip and Fall at "Open House"
      Slip and Fall at "Open House" $290,000.00

      Facts: The plaintiff slipped and fell on a tiled entryway at a realtor’s “open house” and suffered numerous injuries. She sued the realtor and the homeowners for her injuries and her husband sued for loss of consortium. Mrs. Thompson and her husband visited a real estate “open house” in Solana Beach, California. The Hanecaks owned the property and they retained the Willis Allen Company to show the house for the purposes of sale. Mr. and Mrs. Thompson were instructed to wear plastic, over-the-shoe booties in the home because the carpets were wet from shampooing. Mrs. Thompson fell as she descended the steps when she placed her foot on the tiled entryway. Her right foot shot almost straight up into the air and caused her other foot to also leave the ground. She tried to break the fall with her left arm, then hit her arm and shoulder on the last step of the stairway. When her right arm and shoulder hit the step, her upper body, head and neck snapped backward.

      Contentions: The plaintiffs contended that the defendants knew or should have known they had created a dangerous condition when they required visitors to wear booties. The plaintiff wife asserted that the fall at the defendants’ home was the cause of all her debilitating injuries.

      The defendants contended that the plaintiffs assumed the risk, that any danger was open and obvious. They disputed the nature and extent of the plaintiff’s claimed injuries.

      Injuries/Damages: The plaintiff wife claimed a disk protrusion to the right at C5/6 and to the left at C4/5. She also claimed left neck and shoulder pain with symptomatic left thoracic outlet syndrome and neuromuscular symptoms in the left face, neck, shoulder and arm. Mrs. Thompson maintained that she had decreased left cervical and left shoulder range of motion and strength with radicular pain to her left upper extremity and facial region, skeletal dysfunctions in cervical thoracic and rib region and possible facet denervation. She also claimed residuals from multiple tears in her left that were surgically repaired and may require further surgical intervention. She also experienced symptoms of left facial laxity and TMJ and lastly has been treated for depression related to the physical problems.

      She claimed $66,161 in past medical costs and $35,000 for future medical costs. Additionally, the plaintiff husband claimed a loss of consortium for an unspecified amount.

      Special Notes: The parties settled for $290,000. Defendant Hanecaks paid $75,000 and Defendants Wood and Willis Allen paid $215,000.

    • Hanley, et al. v. John Doe, M.D.
      Hanley, et al. v. John Doe, M.D. $444,000.00
    • Jane and John Doe v. Hospital and Nurse
      Jane and John Doe v. Hospital and Nurse $300,000.00
    • Staph Infection
      Staph Infection $345,000.00

      Facts: This 56-year-old retired Coast Guard Captain underwent an angioplasty at UCSD Medical Center. He developed a hematoma at the catheter site in his right groin. He was discharged with the hematoma, but otherwise healthy. He then proceeded on a cross-country motorhome trip. While in New Mexico, he started to feel pain in his right groin and hip, and developed a fever. He went to the emergency room at Kirtland Air Force Base five times over the course of nine days. Although he advised the physicians of his angioplasty procedure, he was diagnosed with low back pain and prostatitis. The physicians did not consider a developing infection in the hip. Approximately a week later, Capt. Moorehead returned to San Diego where he was diagnosed at San Diego Naval Hospital with a massive staph infection which had spread from his hip joint to his low back.

      Contentions: Capt. Moorehead contended that the doctors at Kirtland Air Force Base emergency room failed to appropriately and timely diagnose his developing infection. Defendants contended that a hip joint and back infection are exceedingly rare complications of an angioplasty and they were not negligent.

      Injuries: Massive staph infection of the right hip with near complete destruction of the hip joint space, and complete destruction of the L3-L4 disc space in the low back.

      Damages: Plaintiff claimed income loss between $100,000 and $200,000. Past medical bills were covered by plaintiff’s Coast Guard retirement benefits.

      Special Notes: Plaintiff demanded $550,000; defendant offered $100,000. The case settled for $345,000. The New Mexico Medical Malpractice Act, applicable to this case, placed a $500,000 cap on non-economic damages.

    • Kitrosser v. The Regents of the University of California, William Taylor, M.D.
      Kitrosser v. The Regents of the University of California, William Taylor, M.D. $1,750,000.00
    • Physician Injured in Auto Accidents
      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.

    • John Doe and Mary Doe v. Dr. Roe and Roe Medical Center
      John Doe and Mary Doe v. Dr. Roe and Roe Medical Center $657,000.00
    • Failure to Timely Diagnose Thyroid Cancer
      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.

    • $825,000
      $825,000 $825,000.00
    • Ryan v. S.D. Hospital Assoc. DBA Sharp HealthCare and AIG Life Ins Co.
      Ryan v. S.D. Hospital Assoc. DBA Sharp HealthCare and AIG Life Ins Co. $500,000.00
    • Wrongful Death from Heart Laceration
      Wrongful Death from Heart Laceration $260,000.00

      Facts: At the time of his death, decedent was 55 years of age. On November 16th, he presented to the ER of a private hospital with complaints of abdominal pain and nausea, and was eventually diagnosed with incarcerated bowel obstruction and diaphragmatic (Morgagni) hernia. Later that day, he was transferred to defendant’s hospital for further care and treatment. Decedent underwent a laparoscopic repair of the hernia the following day at defendant’s hospital. Approximately 90 minutes post-op he began bleeding internally and was taken back to the operating room where a laceration of the right ventricle was discovered. The surgeon had used too large of a staple to attach the mesh piece.

      The surgeon was not a cardiovascular surgeon and there was no cardiovascular surgeon on staff at defendant’s hospital. The patient was transferred by ambulance to another facility with an open chest for heart surgery. Unfortunately, he never regained consciousness and passed away on November 18th.

      Contentions: Plaintiff’s 25-year-old son brought an action for wrongful death of his father, alleging that not only did the operating surgeon commit malpractice, but that the facility, by reason of its inability to properly care for his father once the complication had occurred, was negligent in undertaking the procedure without adequate staffing.

      Damages: Wrongful death of an otherwise healthy 55-year-old male.

      Special Notes: Plaintiff’s initial demand was for $250,000 plus funeral and related expenses in the amount of $1,604, made in a Statutory Offer to Compromise (settle) for $251,604. The case resolved for $260,000 before expert depositions were taken.

    • Overdose of Heparin to Stroke
      Overdose of Heparin to Stroke $420,878.00

      Facts: On March 6th, plaintiff, a 62-year-old veteran of the United States Army, was admitted to the Veterans Administration Center for treatment of peripheral vascular disease and renal insufficiency. During his hospitalization, his prescription for Coumadin was discontinued in anticipation of diagnostic studies. When discharged from the hospital on March 26th, plaintiff was put on a low-molecular weight heparin in a prescription of 90 milligrams twice daily. The Physicians’ Desk Reference (PDR) indicates that a typical dose of this drug in 30 milligrams every 12 hours, and that excessive doses are known to cause hemorrhage and bleeding.

      On March 26th, plaintiff began to experience slurred speech. A CT scan and MRI revealed numerous hemorrhagic lesions in the left temporal region. Plaintiff was diagnosed as having suffered a hemorrhagic cerebral vascular accident (stroke) caused by over-anticoagulation.

      Injuries/Damages: Plaintiff’s doctors testified that he suffered a stroke, exacerbating his other health problems and causing decreased processing speed, problems with attention, significant impairment of his visual-spatial construction ability, concentration and mental flexibility problems, memory and executive functioning problems, and difficulty functioning in any environment that is other than completely structured.

      Contentions: The V.A. over-medicated Mr. Feroni and he suffered a stroke. His wife sued for loss of consortium. Defendant admitted liability, but disputed the nature and extent of plaintiff’s injuries.

      Special Note: This was a Federal Tort Claims Act (FTCA) case and was tried before a judge with no jury.

    • Waldal v. Charles Campbell, M.D. and Scripps Memorial Hospital
      Waldal v. Charles Campbell, M.D. and Scripps Memorial Hospital $321,000.00
    • Reheat Steam Pipe Fails
      Reheat Steam Pipe Fails $15,000,000

      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.

    • Prafke v. Alvarado Hospital Medical Center, et al.
      Prafke v. Alvarado Hospital Medical Center, et al. $143,000.00
    • Brain Injury from Dislodged Endotracheal Tube
      Brain Injury from Dislodged Endotracheal Tube $4,950,527

      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.

    • Failure to Treat TIA, Leading to Stroke
      Failure to Treat TIA, Leading to Stroke $5,000,000

      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.

    • Medical Malpractice
      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 6th, 2015.

      “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.

    • Amrine v. Koll Center, et al.
      Amrine v. Koll Center, et al. $230,000.00
    • Patient develops CRPS following IM Phenergan injection
      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 (plaintiff’s husband).

      Results: Two days before the commencement of trial, the matter settled for the total amount of $1,075,000.

    • Velasquez v U.S.A.
      Velasquez v U.S.A. $812,000.00
    • Failure to Diagnose Appendicitis
      Failure to Diagnose Appendicitis $200,000.00

      Facts: On 12/27, Mr. Warren, then aged 34, presented to Doe Medical Group complaining of acute onset abdominal pain in his right upper quadrant. He was examined by Dr. Roe, who palpitated and auscultated his abdomen. She documented his extreme tenderness to mild palpitation and noted diminished bowel sounds. Based on this physical exam only, a diagnosis of cholelithiasis (kidney stones) was made, and Mr. Warren was sent home on painkillers. No lab work was ordered. No emergent nor urgent imaging studies was ordered. No surgical consult was ordered. He was sent home with medication for pain.

      The next day, 12/28, Mr. Warren presented to the Emergency Room of Doe Medical Group with fever and increased abdominal pain. He was worked up by the ER staff and a provisional diagnosis of acute appendicitis was made. His white blood cell count was elevated at 13.3. Surgical consult was obtained and preparations were made for an emergent laparoscopic appendectomy. Mr. Warren was taken into surgery and the appendicitis was confirmed. It was noted by the surgeon that the tip of the appendix was gangrenous. The pathologist examining the removed organ noted that the appendix had microperforated. Both of these findings confirmed that Mr. Warren had been suffering from appendicitis during his presentation at the Urgent Care on December 27th.

      Mr. Warren remained in the facility for approximately 24 hours. The surgeon wrote orders for antibiotics to be administered postoperatively, but there is ambiguity as to whether they were given. Mr. Warren’s appendix was gangrenous and perforated, and clearly antibiotic therapy was crucial to his survival and recovery in this situation. Nevertheless, he did not receive any posoperative antibiotics and was discharged home on painkillers only in the late morning of 12/30. By that afternoon Mr. Warren’s pain was increasing. He presented to the Emergency Department complaining of a fever of 102 degrees and pain at his incision site. The ER staff noted that his only medication was a painkiller. He was sent home and told to follow up at the surgical clinic in two days.

      On 12/31, Mr. Warren again presented to the Emergency Department with escalating symptoms. He was now vomiting, was clammy and cool to the touch, and had a distended abdomen. He was admitted with a provisional diagnosis of postoperative ileus. Subsequent CT scan revealed that he actually was suffering from a postoperative abscess, i.e., a postoperative infection. A CT scan-guided drainage was performed and a quantity of feculent bloody fluid was aspirated from his abdomen.

      While still in the hospital and recovering from all that had happened, Mr. Warren began bleeding in his gastrointestinal tract. Quantities of bright red blood were observed in his nasogastric tube, and he was found to be losing blood rectally. Transfusions were done. He was taken to the operating room again where on the endoscopy the surgeons found a large placenta-like clot in his stomach. It was concluded that this was the result of hemorrhage from trauma caused by his nasogastric tube suction being up against the wall of the stomach and going unnoticed for too long a period of time. He eventually received several units of blood to treat this hemorrhage.

      Mr. Warren was discharge on 1/28. He was admitted again on 2/11, for continuing abscesses.

      Injuries/Damages: In addition to his pain and suffering, Mr. Warren is now left with an abdomen full of scar tissue as a result of the significant infection and several surgical procedures that were required to deal with the infection.

      Contentions: All of the injuries to Mr. Warren could have been avoided had he been adequately examined and treated when he first presented in the Urgent Care on 12/27. At a minimum, the physician should have ordered a CBC and UA (urinalysis). These tests would have revealed the fulminating appendicitis in time to avoid the development of gangrene and perforation. The delay in treatment led to the rupture of the appendix and the seepage of feculent material into his abdominal cavity.

      Special Notes: The same doctor who missed the diagnosis of Mr. Warren’s appendicitis at the Urgent Care also failed to correctly diagnose colon/rectal cancer in another patient. See the Shilling medical malpractice case.

    • Death After Administration of Succinylcholine
      Death After Administration of Succinylcholine $400,000.00

      Facts: 43-year old plaintiff, Mr. Allen, an executive chef, was involved in a motorcycle accident in Palm Desert. The plaintiff was thrown from his motorcycle and into a picket fence at a speed of between 40-60 miles per hour. The plaintiff sustained multiple injuries which included a 16-17 centimeter laceration in the substernal area that caused his rectus muscles to protrude. The plaintiff was taken to an operating room at the UCSD Medical Center for exploratory abdominal surgery in connection with the injuries he sustained in the motorcycle accident. Prior to the surgery, the plaintiff underwent laboratory studies which revealed that he had a potassium level 5.3, which is at the high end of normal or abnormally high. During the surgery, the plaintiff was administered succinylcholine as part of his anesthesia. Within a few minutes, the plaintiff’s cardiac rhythm level became abnormal and he sustained cardiac arrest.

      It took approximately thirty minutes of pulmonary resuscitation before a normal hean rate was established. Laboratory studies following the surgery showed a potassium level of 7.3, which is consistent with hyperkalemia (elevated pottasium).

      Contentions: Plaintiff contended that the administration of succinylcholine was negligent as it is known to cause significant increases in potassium levels and hyperkalemic arresi in patients with severe trauma and intra-abdominal infections.

      Defendant contended its doctors complied with the standard of care. The defendants claimed they were not responsible for the plaintiff’s injuries because the potassium level was within normal limits and the succinylcholine was safe to use under the circumstances.

      Injuries/Damages: Permanent brain injury causing short-term memory loss. Medical expenses total $35,000. Loss income was calculated between $300,000 and $500,000. This was disputed.

      Special Notes: The plaintiff demanded $750,000. The defendant made no offer.

    • Jane Doe v. Public Entity
      Jane Doe v. Public Entity $400,000.00
    • Surgeon removes Wrong Rib
      Surgeon removes Wrong Rib $1,024,614.00

      Facts: On August 31st, plaintiff Juan Fuentes Jr., a 32-year-old electrician, underwent surgery for removal of his eighth rib on the right, along with portions of the seventh and ninth rib, so as to remove a cancerous tumor. Defendant Julian Brittain Litchford, M.D, performed the surgery. During the surgery, the seventh rib was removed in its entirety, along with portions of the eighth and sixth rib. The tumor was not completely removed, but was bisected during the surgery. On Sept. 7, the plaintiff underwent a second surgery for removal of the correct rib.

      Contentions: The plaintiffs contended that the defendant physician fell below the standard of care when he negligemly performed the first surgery by totally removing a rib that was not consented to, necessitating a second surgery a week later to remove the correct one.

      The defendants, who admitted liability as to the issue of negligence, contested both causation and damages.

      Injuries/Damages: Plaintiff Juan Fuentes, Jr. claimed that he had continued pain in his right arm with cramping that extended from the shoulder down to the flank. He further claimed that his lung capacity had not improved or returned to normal. He claimed that he suffered residuals such as insomnia, anxiety, depression, lack of confidence and mood swings, which have all been attributed to post-traumatic stress syndrome related to the surgeries and their sequelae. He also maintained he has chronic neuropathic pain in his right chest, shoulder and back that require pain medication. He asserted that after the second surgery, he was unable to return to part-time work until March and was nor released to work full-time until July/August for “light duty only.” Juan Fuentes, Jr. claimed past medical specials of $4,000 and future medical specials of$577,000. He also claimed $6,614 in past loss of earnings.His wife filed a claim for loss of consortium.

      Special Notes: The jury returned an award of $1,024,614. The verdict was reduced to $431,614 per the Medical Injury Compensation Reform Act (MICRA) and the plaintiffs agreed to settle the matter for $460,000 in exchange for a satisfaction of judgment. MICRA limits general damages (non-economic damages) in medical malpractice cases to $250,000. If this were a personal injury case where Mr. Fuentes had been struck by an automobile and injured his ribs, arm, shoulder and flank, he would have been entitled to the full amount of the jury verdict.

    • Norpace Toxicity Kills 13-Month-Old
      Norpace Toxicity Kills 13-Month-Old $1,200,000.00
    • Failure to Diagnose Ovarian Cancer
      Failure to Diagnose Ovarian Cancer $750,000.00

      Facts: 38-year-old Jane Doe was seen at Roe Clinic Urgent Care with symptoms of severe right upper quadrant abdominal pain. A CT scan was suspicious for appendicitis, but also revealed a right adnexal mass on the right ovary. The radiologist recommended an ultrasound to determine if her pain was related to the ovary or appendix, which came back positive for complex cysts on the ovary and acute appendicitis. Plaintiff was never informed of the abnormal findings related to her right ovary. Her friend who was with her at the Urgent Care confirmed there was no mention of an abnormal ovary finding. Ms. Doe underwent an appendectomy but was never told to follow up on the ovarian finding. At a follow-up appointment, no one mentioned her ovary.

      A year later, she went to her primary care doctor’s office complaining of abdominal cramping. A workup revealed that a mass filled her entire pelvis, sidewall to sidewall and extended up into the lower abdomen and then along the anterior abdominal wall into the omentum. The mass was also noted to envelop loops of the distal ileum and rectosigmoid colon and was fixed to the rectum and rectovaginal septum on rectal exam. A chest CT also showed possible left lower pleural metastasis.

      Contentions: Plaintiff alleged that had she been told in the Urgent Care visit that she had an abnormal finding on her right ovary, she would have immediately sought additional care and treatment, that her ovarian cancer would have been diagnosed at an earlier stage and that her chances of survival beyond five years would have been greater that 50%. She alleges that there was a complete breakdown in communications with each of the doctors assuming that the finding had been discussed with her.

      Defendants denied that their care and treatment of plaintiff was below the standard of care, or that it failed to meet accepted standards for adequate medical care. Specifically, defendants disputed that the Urgent Care doctor failed to mention the abnormal ovarian findings during the Urgent Care visit, and further stated that the general surgeon had no duty to discuss the ovarian mass with plaintiff. Defendants also disputed the origin of the cancer that eventually was diagnosed.

      Injuries: Plaintiff underwent chemotherapy followed by a debulking surgery to remove the massive tumor. According to the defendant’s medical clinic’s pathology report, the tumor originated from the right ovary. Plaintiff was ultimately diagnosed with Stage 3C ovarian cancer. According to her current gynecologic oncologist, plaintiff had Stage 4 ovarian cancer based on the pleural masses seen on the CT, which were not biopsied.

      After completing her ovarian cancer treatment, plaintiff palpated a mass on her breast in the fall of 2010. She was diagnosed with Stage 2A breast cancer. She underwent a double mastectomy, chemotherapy and radiation to treat her breast cancer, and is now in complete remission with an undisputed high probability of survival from the breast cancer.

      However, the cancer which originated from the right ovary has recently aggressively returned and plaintiff is no longer in remission. She is currently undergoing additional chemotherapy.

      Damages: Plaintiff had worked as a mail carrier for the United States Postal Service for over 12 years. Due to the extensive chemotherapy Ms. Doe underwent to treat her ovarian cancer, she has been unable to work. She suffers from chronic fatigue and joint pain which has made it impossible for her to return to her position with the post office. She is now in the process of applying for disability retirement. It is unlikely plaintiff will be able to return to gainful employment. Given the fact that, more likely than not, Ms. Doe will succumb to her ovarian cancer within five years of diagnosis, she also made a claim for the lost years of her future income and earning capacity. Plaintiff claimed total economic damages ranging between $1,917,138 and $2,051,293.

      Special Notes: Jane Doe made a CCP §998 statutory offer to compromise/settle in the amount of $1,447,500, which was rejected by the defendants. Before trial call, defendants offered $500,000. The case resolved during jury selection for $750,000.

    • Mitchell Arbitration Award
      Mitchell Arbitration Award 3,469,778

      Facts: Kaiser Arbitrator, Judge James L. Smith, retired, awarded $3,469,778 in damages San Diego resident John Mitchell, who was rendered a partial paraplegic as a result 11-day delay in obtaining a thoracic MRI. According to the arbitrator’s award, “the inexcusable delay in conducting the thoracic spine MRI that made the correct diagnosis possible was a proximate cause of Mitchell’s current disabilities. Expert opinion to the contrary offered by respondent [Kaiser] was thoroughly impeached and is found to have been not credible” [page 7, lines 13-16].

      According to Attorney Robert Vaage, who represented Mitchell in the arbitration, this case is a classic example of the failure of the Kaiser system. Mitchell was seen by Kaiser physicians on February 1st, 8th, 9th, 10th, 15th, and 17th with escalating signs and symptoms of a spinal cord compression. On February 19th, Mitchell had an MRI revealed a disc compression in the thoracic spine. Emergent decompressive surgery was performed at T9-T10, but unfortunately, the damage was permanent.

    • Huffman v. Doe Convalescent Hospital
      Huffman v. Doe Convalescent Hospital $234,000.00
    • Delay in Diagnosis of Gastric Bypass Complication
      Delay in Diagnosis of Gastric Bypass Complication $8,999,998

      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.

    • Jones v. Fernald Wentzell, M.D.
      Jones v. Fernald Wentzell, M.D. $723,000.00
    • Retaliation For Pregnancy Discrimination Claim
      Retaliation For Pregnancy Discrimination Claim $150,000.00

      Facts: In 1995, plaintiff, a 37-year-old district attorney for the County of San Diego for ten years, specializing in domestic violence, became pregnant with her first child. She disclosed this fact to her superiors in December 1995. After her disclosure, she was accused of suddenly becoming a morale problem, that she didn’t get along with her co-workers and didn’t do her fair share of the workload. After successfully trying back-to-back domestic homicide cases as well as a third felony in her last trimester and returning from maternity leave, she found herself in misdemeanor trials. The response to her formal complaint about the discrimination was the assignment of a biased investigator, a substandard performance evaluation and a counseling memo accusing her of dishonesty and insubordination. In fact, the District Attorney told her, himself, that she would never try another domestic violence case. In November 1997, plaintiff requested a one-year leave of absence, which was granted. Plaintiff did not return from her leave, and on February 1, 1999, she resigned.

      Injuries/Damages: Emotional distress injuries. Loss of income.

      Contentions: Plaintiff alleged there were violations of the pregnancy discrimination statutes contained within the Fair Employment and Housing Act (FEHA), violations of the family leave statutes contained within the FEHA, the California Family Rights Act, and the federal Family and Medical Leave Act. Plaintiff also alleged violations of various anti-retaliation provisions in anti-discrimination statutes, as well as Labor Code Section 1102.5, and wrongful constructive termination.

      Special Notes: The jury originally awarded $250,000 on the retaliation claim. The Court reduced the verdict to $150,000 because it felt the jury included attorney’s fees in its verdict. The Court then awarded attorney’s fees and costs in the amount of $273,481.

      The County appealed. The Fourth District Court of Appeal found for the Plaintiff and certified the case for partial publication. The official citation is Akers v. County of San Diego (2002) 95 Cal.App.4th 1441

    • Slip and Fall Concussion
      Slip and Fall Concussion $500,000.00

      Facts: Jane Doe, a 53-year-old access representative for a healthcare provider , entered a restaurant that sells juice-based drinks with her daughter to get a couple smoothies. They ordered and obtained the smoothies and then left. Ms. Doe returned to get a smoothie for her son at home and entered the restaurant by herself. Between the time Ms. Doe left the restaurant and the time she returned, an employee had washed the floor but did not put out a “wet floor” sign prior to the Ms. Doe’s return, nor did the employee verbally warn her of the wet floor. Immediately upon entering the store, Ms. Doe slipped and fell on the wet floor, landing on her back and striking the back of her head.

      Contentions: Jane Doe alleges negligence by the Roe Restaurant and its Owners for a dangerous condition of the floor, failure to warn, and failure to properly train their employees.

      Defendants denied Ms. Doe’s allegations and disputed they were negligent. They disputed the nature and extent of Ms. Doe’s injuries and alleged that Ms. Doe had a pre-existing condition.

      Injuries: Ms. Doe was not treated at the scene but went to her doctor the following day. She sustained a concussion and subsequently, post-concussive syndrome. She presently experiences headaches and claims an exacerbation of a pre-existing Chiari I malformation. The plaintiff also experiences neck and back pain, along with burning sensation along her spine.

      Damages: As a result of chronic pain and headaches from the fall, Ms. Doe will need to continue to treat with a neurologist for the remainder of her life. She will also require Botox injections in her head every three months for the next 5 to 10 years to treat her headaches. Now that her Chiari malformation has become symptomatic from the fall, she will require diagnostic MRIs to monitor her condition. Her treating neurosurgeons have recommended that she undergo brain surgery to repair the Chiari malformation with the hope that her symptoms would be reduced.

      As a result of her chronic pain and headaches, Ms. Doe, who is trained as a registered nurse, is unable to return to her former occupation as an access representative for a healthcare company. She will have difficulty competing in the labor market given her age, disability and absence from the market.

      Jane Doe’s husband filed a claim for loss of consortium as a result of his wife’s injuries and damages. He has been required to take on most of the household chores she used to perform, as well as taking care of her healthcare-related needs.

      Special Notes: The defendants agreed to settle both claims, after pre-trial motions in limine were filed, for $500,000.

    • Medical Malpractice/Fraud - Pain Pump Implant, Fentanyl Lollipops
      Medical Malpractice/Fraud - Pain Pump Implant, Fentanyl Lollipops $2,050,000.00

      Allegations: Medical negligence in the care and treatment of plaintiff’s back pain; implantation of a pain pump despite failed pump trial; prescribing fentanyl in a patient with known sensitivity; failure to disclose financial interest in pharmacy that supplied narcotics and other drugs for the pain pump.

      Facts: Plaintiff Jane Doe suffered an industrial injury to her back, which disabled her from working. Mrs. Doe treated with various workers’ compensation doctors. She underwent an anterior-posterior fusion at L4-5 and L5-S1. She had substantial back pain. She tried physical therapy and one of her treating doctors tried different narcotic pain medication, including a pain (fentanyl) patch. The narcotic pain medications caused dizziness, nausea, and sedation, and were discontinued.

      On September 9th, Mrs. Doe began treating with Dr. Roe for her work-related injuries. He became her primary treating physician. She told Dr. Roe that she was extremely sensitive to opiates and that she had tried and failed a Duragesic patch (fentanyl patch). After the initial consultation, Dr. Roe immediately requested authorization to proceed with an intrathecal pain pump trial for Mrs. Doe and anticipated ultimately implanting a 10 cc Medtronic pump in her. Dr. Roe also immediately prescribed for Mrs. Doe compounded fentanyl lollipops, which he developed with Roe Pharmaceutical. Defendant Mr. Zoe held himself out as the CFO of Roe Pain Management and various other entities owned and controlled by Dr. Roe. He is the bookkeeper for Dr. Roe, Roe Pharmaceutical and Roe Pain Management. His wife, Mrs. Zoe, was the general partner of Roe Pharmaceutical, and presently she and her husband are limited partners of the pharmacy, together owning and controlling 100% of the pharmacy. Dr. Roe maintains a security interest in Roe Pharmaceutical. When Mrs. Doe was unable to fill the prescriptions at her regular pharmacies, she called Dr. Roe and his office personnel told her she could get the lollipops at Roe Pharmaceutical, and she in fact obtained the lollipops from Roe Pharmaceutical, one of several compounding pharmacies located in the county. Dr. Roe specially compounded this lollipop with a very small amount of dextromethorphan, 2 mg, so that his patients would have to fill the prescription at a compounding pharmacy.

      Dr. Roe started prescribing these fentanyl lollipops to Mrs. Doe despite the fact that she told him she was sensitive to fentanyl. Mrs. Doe experienced adverse reactions to the lollipops, which included nausea, dizziness, lightheadedness, throbbing headaches, and stomach pain, similar to the types of adverse effects she had with the Duragesic patch and other narcotics attempted in the past.

      Dr. Roe did not disclose to Mrs. Doe that he had an ownership interest in Roe Pharmaceutical.

      On November 21st, Dr. Roe inserted an intrathecal catheter in Mrs. Doe and started her pump trial at Roe Pain Management, a surgical center also owned and controlled by Dr. Roe. The usual duration of a pump trial is three to 10 days. Mrs. Doe’s pump trial lasted 20 days. During Mrs. Doe’s pain pump trial, Dr. Roe was informed about all the side effects and complications that Mrs. Doe encountered. All the records indicate that at best she got 35% pain relief, and she had multiple side effects, including headaches, rashes, dizziness. Dr. Roe admitted in his deposition that by the patient’s reports, she only obtained about 35% pain reduction.

      After the pump trial, Mrs. Doe had a cerebral spinal fluid leak associated with the trial, causing headaches. Dr. Roe noted that the headaches were related to the pump trial and talked about doing a blood patch to repair it. That was never done. On January 17th, Mrs. Doe had a syncopal episode (fainted), fell, striking her head and face, and was knocked unconscious. She suffered a serious closed head injury and still has headaches and a serious neck injury. The cerebral spinal fluid leak was never repaired.

      On March 31st, following the failed pump trial, and Mrs. Doe’s severe complications, Dr. Roe went ahead and implanted a 10cc pain pump, which requires many more refills and visits than would a pain pump in the proper size for this patient.

      Mrs. Doe’s pain pump contained very high doses of Fentanyl. The doses administered by defendant were substantially higher than those being administered intrathecally by other pain doctors, i.e., milligrams of fentanyl as opposed to micrograms. This high dose of Fentanyl was being manipulated by the nurses at Roe Pain Management without a signed physician’s order. Consequently, Mrs. Doe suffered pulmonary problems caused in part by the high dose of fentanyl in the pain pump. During this time, Mrs. Doe’s mental and physical health deteriorated. The 10 cc pain pump was eventually removed by another doctor.

      Contentions: Plaintiffs alleged medical negligence, lack of informed consent and breach of fiduciary duty, and fraud by negligent and intentional misrepresentation and concealment as to Dr. Roe and Roe Pain Management. Plaintiffs further alleged civil conspiracy to commit fraud as against Dr. Roe and Mr. and Mrs. Zoe. Plaintiffs determined through discovery that Dr. Roe is the sole shareholder, CEO, CFO, President and Secretary of Roe Pain Management. As owner, he established an intrathecal controlled substance policy requiring all controlled substances be obtained from Roe Pharmacy. He established a policy allowing Roe nurses to adjust pump infusion rates at their discretion, without a signed physician’s order.

      Plaintiffs also alleged that as an adult woman, if Mrs. Doe was going to have an intrathecal pump installed, she should have received the adult-sized pump with a 20cc reservoir. Instead, without indication, defendant Dr. Roe installed the pediatric-sized 10cc intrathecal pump with a 10cc reservoir, requiring Mrs. Doe to come back three times as often to have the pump refilled, and Dr. Roe could charge for each one of the refills, both for the narcotics that were coming from the pharmacy in which he had an interest, as well as for the service itself.

      Plaintiffs further claimed negligent and intentional infliction of emotional distress as against Dr. Roe and Roe Pain Management, along with a claim for loss of consortium brought by Mr. Doe.

      Defendants denied all allegations. The defendants’ ultimate position was that this case was nothing more than a medical malpractice action.

      Injuries/Damages: As a direct result of the care and treatment rendered to Mrs. Doe by Dr. Roe, her functional abilities have declined in terms of her activities of daily living, she suffers from spinal headaches, post-traumatic headaches, post-concussive syndrome, light sensitivity, myelomalacia of the spinal cord in her neck possibly requiring future surgery, along with a pulmonary embolism. She has undergone two unnecessary surgeries (implanting and explanting the pump), and has been forced to go through detox for narcotics addiction and withdrawal. Mrs. Doe has suffered two years of worsening side effects from the narcotics administered by Dr. Roe, and her cognitive abilities have been negatively affected. She has been, and continues to be, unable to work in any gainful form of employment.

      Since Mrs. Doe had a prior disability, there was no claim made for income loss. All of her prior medical expenses were covered. The worker’s comp carrier asserted a lien in the amount of approximately $395,000.00.

      Special Notes: Plaintiff Jane Doe served Statutory Offers to Compromise in the amount of $975,000.00 separately to each of the defendants. Plaintiff John Doe served Statutory Offers to Compromise in the amount of $25,000.00 separately to each of the defendants.

      Defendant Roe Pharmaceutical served a 998 Offer to Mrs. Doe in the amount of $25,000.00, which was rejected, and to Mr. Doe in the amount of $15,0001.00, which was accepted.

      In mediation sessions, an initial settlement offer on behalf of all defendants was made in the amount of $250,000.

      Ultimately, the matter was resolved as to both plaintiffs for the total amount of $2,050,000 (in addition to the $15,001 previously paid to Mr. Doe), consisting of payment by Dr. Roe of $900,0000; payment by the Zoe defendants of $575,000; and payment of $575,000 by Roe Pain Management.

    • Postop Hematoma
      Postop Hematoma $1,300,000.00

      Facts: Plaintiff, 55 years old, worked many years as a distributor of newspapers for the Union-Tribune Publishing Company. During his work of loading and unloading bales of newspapers from trucks, he suffered several back injuries which left him with chronic pain. He had several laminectomies and eventually a fusion . According to Dr. Altenau, the Plaintiff did well following these surgeries. However, he would wind up injuring himself again and eventually, additional surgery to the spine was not an option.

      In November, he underwent the placement of a dorsal column stimulator (DCS) by Dr. Altenau. The plaintiff achieved what Dr. Altenau described as “superb” relief of pain with this device, which delivers electrical stimulation to the spinal cord to block pain impulses. It was determined post-operatively that while the Plaintiff was getting good relief of pain in his low back and down his right leg, the lead for his left leg was not operating correctly. While Dr. Altenau had considered the placement of the DCS device to be successful and felt that it was probable that the device could continue to be used by the Plaintiff to provide him with pain relief, he referred him to Dr. Finkenberg to see if the device itself could be adjusted. It was intended that the plaintiff would return to Dr. Altenau for additional surgery if the device could not be adjusted.

      However, following the consultation with Dr. Finkenberg, Dr. Finkenberg had the plaintiff admitted to Doe Hospital on 5/13 to replace the faulty lead as well as the DCS device itself. Surgery was done without apparent complication, and the plaintiff was transferred to the medical-surgical floor for further recovery.

      As part of his post-operative care, Mr. Sheets was to undergo a complete neurologic assessment every three hours by the staffing nurse. A motor and sensory exam was performed at both 9:00 p.m. and 12:00 a.m. These examinations were completely normal.

      At 3:00 on the morning of the 14th, plaintiff’s nurse did another complete assessment. At that time, his motor examination showed “0’s” in his lower extremities, and showed that he had lost all sensation. According to the nurse, she contacted Dr. Finkenberg at 3:10 a.m. and notified him of the situation. Dr. Finkenberg allegedly advised the nurse to have Mr. Sheets lie still and he should be all right in the morning.

      Dr. Finkenberg testified in his deposition that the nurse called him and told him that the Plaintiff was having difficulty moving his legs but that he asked her three times if he was still moving his legs and she answered yes. Dr. Finkenberg also testified that he requested the nurse to follow up with the plaintiff more closely and make neurologic assessments every hour, and to let him know if there was any other change in his condition. The nurse disputes ever receiving this order.

      Nothing was done for plaintiff until after a second phone call was made by the same nurse to Dr. Finkenberg at 6:00 a.m. At that time, Dr. Finkenberg came into the hospital and went in to assist in surgery on another patient. The CT scan of plaintiff revealed an epidural hematoma causing significant compression on his thoracic spine. At 9:30 a.m., he was finally taken to the operating room where the hematoma was evacuated by Dr. Finkenberg. However, because of the sustained compression of the hematoma on his spinal cord, plaintiff is and will remain a paraplegic at level T-6.

      Injuries/Damages: Paraplegia at level T-6; wife sued for loss of consortium.

      Contentions: Dr. Finkenberg admitted that this situation constitutes a medical and surgical emergency and had further admitted that if the nurse relayed the information contained in the nursing records at 3:00 a.m. to him, the standard of care would have required him to immediately order a CT scan and immediately come and do a compressive procedure on an emergency basis. Either Dr. Finkenberg or Doe Hospital’s nurses, or both, violated the applicable standards of care.

      Plaintiff’s expert testified that had the standard of care been complied with, i.e., that a decompressive surgery was undertaken by as late as 6:00 a.m., that to a degree of medical probability, the plaintiff would be walking today and would have full urinary function and continence.

      Special Notes: Dr. Finkenberg was insured through CAP (Cooperative of American Physicians) with a $1 million policy limit. Based on the terms of the policy, its limit was constantly being reduced by any attorney fees and costs incurred by the insured. In September plaintiffs demanded the limits of Finkenberg’s policy in full settlement of the matter. The case was subsequently settled as to DOE Hospital on the eve of trial.

    • Plaintiff vs. Doe Hospital
      Plaintiff vs. Doe Hospital $231,000.00
    • Failure to Treat TIA, Leading to Stroke
      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 of consortium.

      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.

    • Lobb, et al. v. Kaiser Foundation Hospitals, et al.
      Lobb, et al. v. Kaiser Foundation Hospitals, et al. $988,000.00
    • Overdose of Chemotherapy Drug 5-FU
      Overdose of Chemotherapy Drug 5-FU $1,358,000.00

      Facts: In February, following a dental checkup, plaintiffs’ decedent David Bernstein, 54, was diagnosed with Stage IV T2 N2c M0 squamous cell carcinoma at the base of his tongue. His cancer was then treated at the University of California Medical Center in San Diego by oncologist Vicky Jones, an associate professor of medicine UCSD’s Cancer Center, and otolaryngologist Robert Weisman, the Director of Head and Neck Oncology at UCSD Medical Group, as well as other healthcare professionals UCSD’s Cancer Center. Because the primary tumor was relatively small and exophytic, the doctors at UCSD felt it would be amenable to radiation and/or chemotherapy.

      Subsequently, Bernstein underwent bilateral dissection of his neck and concurrent radiation therapy/Cisplatin chemotherapy. In mid-June 2002, he completed his chemotherapy. At a follow-up appointment, Weisman’s impression was that Bernstein was actually doing better than the average patient with base of tongue cancer.

      Because Bernstein had N2 disease (nodal involvement), the UCSD doctors recommended a follow-up round of chemotherapy with Cisplatin and 5-fluorouracil (5-FU). Starting on August 12th, Bernstein began adjuvant chemotherapy. Because he did not want a peripherally inserted central catheter (PICC) line, the 5-FU was given by bolus rather than by continuous infusion. When switching from continuous infusion to bolus route, the dose of 5-FU needs to be significantly reduced. Bone marrow suppression (myelosuppression) is greatest when 5-FU is administered as an intravenous bolus, whereas it is insignificant when it is administered via PICC line. Unfortunately, the dosage of 5-FU was never decreased. Mr. Bernstein received 800 mg/mm or 1,500 mg, and this overdose occurred daily over the course of five days.

      On August 25th Mr. Bernstein was admitted to the UCSD Medical Center suffering from hypoxia. His white blood cell count was 0.1, and his red blood cell count, hemoglobin and hematocrit were all low, and his platelet count was very low. Mr. Bernstein was intubated, became septic and finally succumbed to hypoxia, metabolic acidosis and leukopenia/thrombocytopenia on August 29th.

      Contentions: Plaintiffs alleged that Defendants were negligent in the route and dosage of their administration of the 5-FU, and that it was that overdose of 5-FU that directly caused Mr. Bernstein’s death. Plaintiffs argued that, but for the negligence of defendants, Mr. Bernstein had a statistical probability of five-year survival and cure.

      Defendants admitted their negligence for purposes of settlement discussions only, but alleged that their liability was limited based on their position that Mr. Bernstein’s life expectancy was less than five years. Defendants also questioned Mr. Bernstein’s projected future income losses.

      Injuries/Damages: Death of 54-year-old man, leaving behind wife and two sons.

      Special Notes: At a mediation of the case held before the Hon. Herbert Hoffman (Ret.), Plaintiffs demanded $1.8 million to settle the matter. The Regents offered $1 million. On October 22nd, the Regents served a C.C.P. section 998 Statutory Offer in the amount of $1.258 million. The case settled for $1,358,000.

    • Staff Covers Up Failure to Monitor Patient
      Staff Covers Up Failure to Monitor Patient $3,000,000.00

      33-year-old Brandon Bwy went to the ER on three prior occasions for escalating acute psychotic episodes. Each time he presented to the ER, his electrocardiograms were abnormal. He was finally placed on a psychiatric hold on July 31, 2017, and then transferred to a psychiatric facility on August 2, 2017. Early on August 3, 2017, a doctor ordered an ECG to check for medication effects. His ECG was again abnormal. The results were communicated to a doctor. However, Mr. Bwy’s low pulse rate of 44 bpm and elevated blood pressure of 145/89 were not reported.

      At 11:30 p.m., Mr. Bwy was in the halls asking to be moved, asking to see his doctor, asking who his doctor was, and asking staff members if they were his doctor. Staff contacted a doctor who ordered 50 mg of Benadryl and 10 mg Haldol, given intramuscularly. An hour later, the records reflect the medication was effective.

      The records suggest Mr. Bwy was then monitored every 15 minutes. However, videotape depicting the hallway outside of Mr. Bwy’s room shows the last time he was checked was at approximately 1:00 a.m. on August 4th. At 7:47 a.m, Mr. Bwy was found pulseless, lying prone on the floor. He had been dead for quite some time as his body demonstrated lividity and rigidity in his legs. He was pronounced dead at 7:57 a.m.

      Doe Facility admitted that the medical records indicating Mr. Bwy was checked every 15 minutes were false. Also, the director of the facility chose to preserve only portions of the videotape. What video was preserved provides clear evidence that the medical records made by the staff were forged after the fact to fraudulently cover up what happened to Mr. Bwy. In fact, the video that was produced paints a much different picture of Mr. Bwy’s demeanor and interactions with staff from what is reflected in the records.

      The video shows not only an absolute disregard for Mr. Bwy’s well-being, but it also demonstrates a level of callousness that is difficult to watch. Lastly, the video demonstrates that the staff wanted to chemically restrain Mr. Bwy simply so that he wouldn’t bother them anymore. The video reflects the staff’s willingness to fraudulently manufacture medical records after the fact to attempt to cover up what they did. There was also evidence to suggest that key information was not provided to the Medical Examiner’s Office when it invoked jurisdiction.

    • Jane Doe v. John Roe, John Zoe and Company Insurance
      Jane Doe v. John Roe, John Zoe and Company Insurance $357,000.00
    • Death After Prolonged Diarrhea
      Death After Prolonged Diarrhea $1,000,000

      Facts: On 11/11/03, plaintiffs’ decedent, a 40-year-old husband, father of four children, and a computer technician with Etiwanda School District, presented to Roe Medical Group, complaining of diarrhea, occasionally bloody, for six days running. The physician noted that he was tachycardic and assessed him with acute gastroenteritis. She gave him Bentyl, a drug used to treat irritable bowel syndrome (IBS), advised him to increase his fluid intake, and told him to come back if necessary.

      The decedent returned on 11/15 and was seen at the urgent care section of the clinic by another Roe Medical Group physician. He was still suffering from diarrhea, going on 9 days. The doctor diagnosed him with gastroenteritis, dehydration and a mild case of the flu, and started him on an IV of normal saline for dehydration. He was then sent home with a prescription for an antibiotic and instructions to stay home from work.

      On 11/18, decedent’s wife called urgent care for an appointment. According to her receipts, her husband was seen at that time by a third doctor at the clinic. The clinic was unable to produce any documents pertaining to his visit other than a single “appointment history” sheet. The wife said the decedent presented in a great deal of pain, had blood in his stool and had lost his appetite. The wife recalled that he was growing steadily weaker and had more difficulty moving. The doctor did an anuscope and told the patient he had a hemorrhoid. He prescribed Kaopectate. The clinic took samples of his stool, and he was told to return in a few days if he didn’t improve.

      Three days later, on 11/21, when his diarrhea was not abated and he was becoming increasingly dehydrated, the decedent returned to the clinic with a 15-day history of diarrhea. This time he was seen by a physician’s assistant, whose notes indicate that the patient had lost 17 pounds and acknowledged that he had already been seen in the urgent care for the same condition on three prior occasions. The patient’s standing pulse was 150 and sitting pulse was 136. An EKG showed him to be in sinus tachycardia. Blood was found in the rectum. The PA’s assessment was gastrointestinal bleed and anxiety. The decedent was given two liters of IV fluid and medication for his diarrhea. The PA’s notes indicate that a referral to a gastroenterologist was arranged, but nowhere in the records is there any confirmation of the referral, nor a subsequent appointment with a GI specialist. Despite the patient’s declining physical condition, the PA sent him home with a recommendation to return in three days if he didn’t feel better.

      On 11/24, the decedent presented to the clinic for his fifth visit in three weeks for the same problems: severe, unremitting, occasionally bloody diarrhea. By this time he was gravely ill, and the physician in the clinic had him admitted to the hospital.

      During his hospitalization over the next several days, the medical personnel performed a sigmoidoscopy, which revealed the sigmoid colon to be very inflamed, irritated and brittle, with multiple ulcerations. A laparoscopic exploration confirmed foul-smelling gas and an “inflamed” sigmoid colon along the serosa.

      The sigmoid colon was not removed, but the decedent’s declining condition was documented on a daily basis. His lab results indicated that his red blood cell count, his hematocrit and his hemoglobin were steadily decreasing. On the evening of December 6th, his total hemoglobin content was very low, at 6.8, usually a sign of internal bleeding. His electrolytes were out of the normal range, and he was showing all signs of infection. He had chronic tachycardia throughout his hospital course and low blood pressure, and on that evening, despite being administered three and four liters of oxygen, his oxygenations were low. He died the following day.

      Injuries/Damages: Wrongful death of a 40-year-old, gainfully employed husband and father of four children, now ages 12, 7, 4 and 18 months. The decedent’s wife was and is employed as a teacher. Plaintiffs claimed special damages in the form of past medical treatments and future lost wages of $1,154,080. They also requested general damages in the maximum amount allowed of $250,000.

      Contentions: Plaintiffs claimed medical negligence and malpractice, citing the following violations of the standard of care:

      • Failure to refer the decedent to a specialist by the third visit;
      • Failure to work up and ultimately diagnose what he had, which the plaintiffs claimed was Crohn’s disease;
      • Failure to treat the decedent’s chronic tachycardia;
      • Failure to locate and repair a perforation which occurred during the sigmoidoscopy;
      • Failure to remove the sigmoid colon;
      • Failure to work up and diagnose his declining vitals;
      • Failure to identify internal bleeding;
      • Failure to transfer the decedent to the intensive care unit (ICU);
      • Failure to timely treat and repair surgical wound dehiscence and infection;
      • Failure to timely transfuse the decedent; and
      • Failure to treat his decreasing oxygenation levels.

      Plaintiffs claimed that as a result of the perforation and failure to remove the infected sigmoid colon, it deteriorated and spread poisonous, purulent fluids throughout the decedent’s system. Plaintiffs noted at the time of autopsy, the entire sigmoid colon was diffusely ulcerated. Red flags of the decedent’s declining vital signs were virtually ignored by the steady stream of physicians, nurses, PA’s and other employees who saw the decedent. A medical student was the last person to administer care to the decedent, and he only administered a painkiller, with the approval of his supervising physician, despite noting an increasing pulse, low oxygen saturation levels and dramatically reduced blood pressure.

      The defense took the position that the decedent suffered a “massive hematemesis” (bloody vomit) and that he aspirated and died, an unforeseeable event. The nursing aide who found the decedent testified that she found the patient with a small amount of brown fluid at the side of his mouth. She testified there was no fluid in the mouth, which is inconsistent with a massive hematemesis and aspiration.

      Special Notes: After a mediation, and prior to the disclosure of medical experts, the case settled for $1.1 million, with $800,000 being allocated to the widow, and $300,000 to be placed in tax-free annuities for the four minor children, with a total guaranteed payout to them of $589,352.

    • Minor Doe v. County of riverside, et al.
      Minor Doe v. County of riverside, et al. $451,000.00
    • Crosthwaite v. Kaiser Foundation Hospitals, et al.
      Crosthwaite v. Kaiser Foundation Hospitals, et al. $665,000.00
    • MRI Performed on Patient with Pacemaker
      MRI Performed on Patient with Pacemaker $250,000.00

      Facts: Decedent, an 88-year-old male, had a pacemaker implanted to assist him in managing his atrial fibrillation. The pacemaker was regularly checked by Dr. Roe and was considered to be working properly. On May 26th, decedent experienced decreased movement of his left arm and left leg while at his home. Paramedics were called, and he was transported to Defendant Hospital to evaluate his condition for the possibility of a stroke. On examination, it was noted that his left upper extremity strength was 4+/5. His condition appeared to be resolving. A CT scan of the head showed no evidence of acute infarct, and no evidence of acute bleed. He was prescribed aspirin and was provided some physical and occupational therapy while he was in the hospital.

      A carotid artery ultrasound was performed which showed stenosis in the right internal carotid artery bulb. The possibility of corrective surgery was discussed, and it was decided that this would be worked up and performed in the near future. Decedent made plans to be discharged from the hospital. Because he had been experiencing mobility problems with his left leg, which was now suspicious of orthopedic origin, x-rays of the leg were discussed with decedent and his granddaughter. It was decided that the leg would be x-rayed on decedent’s way out to be discharged.

      On May 29th, the granddaughter began the trip into town to pick up her grandfather to take him home, believing that he was in radiology having his leg x-rayed. Decedent did not have the leg x-rayed. Instead, he was placed in an MRI machine for a Magnetic Resonance Angiogram (MRA) to image his carotids. The purpose of the MRA was to further define the extent of the carotid occlusion earlier noted in the ultrasound. The medical records state that the MR angiography was performed in lieu of conventional catheter angiography because of the relative risks of invasive angiography. During the scan the attendant noted that on the screen it appeared that decedent’s carotids were empty. The scan was ceased and decedent was pulled from the machine in full cardiac arrest. It was at that time, and for the first time, that anyone in the MRI department realized that decedent had a pacemaker. Decedent was revived and admitted to the intensive care department. He never regained consciousness, demonstrated a severely abnormal EEG, slipped into renal failure and died on July 21st.

      Injuries/Damages: Death of an 88-year-old male, survived by spouse. $600 for funeral expenses and $25,540 in loss earnings based on a life expectancy of five years.

      Plaintiff’s Contentions: Plaintiff claimed that defendants knew or should have known that decedent had a pacemaker. It was a violation of the standard of care to attempt to perform any MRI in light of his condition.

      Special Notes: The case settled with an agreement by Defendants to indemnify and hold harmless Plaintiff in regard to any monies potentially owed to MediCal or Medicare.

    • Doe Parents v. Roe Medical group
      Doe Parents v. Roe Medical group $640,000.00
    • Wrongful Death, Failure to Diagnose Lung Cancer
      Wrongful Death, Failure to Diagnose Lung Cancer $500,000.00

      Facts: Gordon Hartley, then 63 years old, went to Scripps Clinic to undergo a medical evaluation in March. During the examination, a chest x-ray revealed an infiltrate in the right infrahilar area of the right lower lobe of the lung. Scripps discharged the patient without scheduling a follow-up appointment regarding the finding. In December, Mr. Huntley was diagnosed with lung cancer, and the following August he passed away.

      Contentions: The heirs of Gordon Hartley contended, and Scripps Clinic admitted, that it failed to follow up on the decedent’s initial diagnosis. The heirs contended that Mr. Hartley was precluded from obtaining a timely diagnosis and treatment for the arrest of his cancer.

      While defendant admitted liability, it contended that the outcome would have been the same even if the decedent’s cancer had been diagnosed at the initial visit in March.

      Damages: Wrongful death of 63-year-old.

      Special Notes: The case settled for $500,000 after the depositions of plaintiffs’ medical experts.

    • Failure To Monitor Fall Risk
      Failure To Monitor Fall Risk $160,000.00

      Facts: On Nov, 27th, plaintiffs’ decedent Mary Holmes, 89, died roughly 22 days after she fell at the UCSD Medical Center Senior Behavioral Health Unit. The previous May, Holmes’ brother passed away, and she began exhibiting signs of depression. In October, she was admitted to Tri-City Medical Center, where she was diagnosed with major depression and noted to be at high risk for falls because of problems with strength, balance and endurance. She was transferred to the behavioral health unit with her adult children’s permission. The transfer decision was based on statements by personnel of the Regents of the University of California that the behavioral health unit was a safe, supportive and responsive treatment environment. At the unit, Holmes was assessed as a high fall risk based on her weakness and unsteady gait. Her depression was initially treated with medication, without improvement, and followed in November by electroconvulsive therapy, which hnd a noticeably positive effect after the fifth treatment.

      On Nov. 4, one day after the fifth treatment, Holmes fell next to her bed and sustained a rib fracture. On Nov, 6, Holmes underwent another ECT treatment, and her treating physician concluded that she had either fully recovered or nearly recovered from her depression. The following day, a nurse assisted her to the bathroom, bur she fell after using the bathroom because she was left unattended and was not assisted back to her bed. At the time, Holmes frequently used the bathroom because of a urinary tract infection. She was using Ambien, a sleep-aid medication with the known siue effect of increasing falling risk. Holmes sustained a femoral fracture of the right hip, which was treated with Tylenol until she could be transferred to internal medicine for hip surgery.

      Her psychiatric therapy abruptly stopped when she was transferred out of the behavioral health unit. and her depression returned to its full extent. Her caloric intake became minimal to nonexistent. but she was not placed on tube feedings for over one month. After her hip surgery, she developed sodium and fluid overload, pulmonary fibrosis which required high-flow oxygen, and a Stage II decubitus ulcer. Holmes died on Nov. 27.

      Contentions: Her two adult children sued the Regents of the University of Calitomia for wrongful death and medical malpractice. They alleged that the defendant was neglectful and reckless in its care and treatment by failing to protect Holmes from safety hazards, including falls. They alleged that the abrupt cessation at her psychiatric care was detrimental to her overall health and well-being. They further alleged that the defendant failed to prevent or treat her dehydration and malnutrition, and violated its own internal policies and procedures for patients at high risk for falls.

      The defense argued that the defendant’s care and treatment was not below the standard, and that it did not fail to meet accepted staddards for adequate medical and psychiatric treatment of the elderly. The defense also argued that Holmes’s falls were caused by her failure to follow the nurses’ instructions. The defense also argued that Holmes failed to follow instructions from doctors and family members because she had lost the will to live. The defense acknowledged that the nurse made an error in judgment in leaving Holmes in the bathroom unattended, which was contrary to hospital policy.

      Injuries/Damages: Holmes was fully independent and able to cope with all activities of daily living, including managing her own finances and taxes, entertaining, and babysitting her grandchildren. Her heirs sought an unspecified amount in wrongful death damages.

    • Kitrosser v. NuVasive, Inc
      Kitrosser v. NuVasive, Inc $3,099,000.00
    • Failure to Diagnose Pneumonia and Pleural Effusion
      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.

    • Medical Negligence by Orthopedic Surgeon
      Medical Negligence by Orthopedic Surgeon $1,489,568.00

      On February 19, 2016, a Southern California Kaiser Arbitrator, Thomas E. Gniatkowski, awarded $1,489,568 to Claimant Veronica Bland for medical negligence by Kaiser orthopedic surgeon, Najeeb Ahmed Khan, M.D., and/or his surgical team, in performing a shoulder arthroscopy and biceps tenodesis. Ms. Bland, a real estate agent and home remodeler, alleged that she sustained permanent brachial plexus injury to her arm and dominant hand as a result of excessive traction during the surgery, and then developed complex regional pain syndrome. Claimant was represented by San Diego Personal Injury Attorney Robert F. Vaage, whose firm has never lost a Kaiser Arbitration, and Attorney Deon Goldschmidt.

    • Wrongful Death Airplane Crash
      Wrongful Death Airplane Crash $9,800,000.00

      Wrongful Death Airplane Crash

    • Dural Tear, Defective Nerve Monitoring Equipment
      Dural Tear, Defective Nerve Monitoring Equipment $2,490,251.98

      Facts: This action arose out of a bilateral hemilaminotomy and foraminotomy (back surgery) at the L3-4 and L4-5 levels performed on Doe 1 by Defendant Roe Surgeon, who was in fact one of the founders of Defendant Roe Corp. During the course of the procedure, Defendant Roe Surgeon used newly invented neuromonitoring equipment manufactured by Defendant Roe Corp that was not part of the standard of care. This equipment was designed to tell the surgeon when the surgical instruments were getting dangerously close to a patient’s nerves or spinal cord. While using the nerve monitoring equipment, Defendant Roe surgeon tore Doe 1’s dura (covering of the spinal cord) with surgical instruments designed and manufactured by Defendant Roe Manufacturer. This tear or tears permanently injured the adjacent spinal nerves in Doe 1’s spinal cord and caused cerebrospinal fluid leakage.

      Injuries/Damages: Immediately after the surgery, Doe 1 experienced a number of deficits that he had not had before the surgery. These deficits included: cauda equina syndrome, dorsiflexion weakness of the left foot, loss of feeling in portions of the left leg, weakened plantar flexion, loss of feeling at S1-S4 bilaterally, difficulty standing and walking, right knee pain and discomfort, periscrotal and perirectal numbness, weak anal sphincter tone, loss of bowel and bladder function, flatulence, bowel and urinary incontinence, and sexual dysfunction. Presently, he has trouble walking without the assistance of a cane, he is in chronic pain, is required to use incontinence products under his clothing at all times, and is unable to have sexual relations. Does 2 claimed loss of her husband’s consortium.

      Contentions: Under the doctrine of respondeat superior, Plaintiffs allege that Defendant Corporation was liable for the acts of its employees and agents, including Defendant Surgeon, for negligence, battery and fraud. In addition, Plaintiffs brought the action against Defendant Corporation under a product liability theory as well as fraud, breach of fiduciary duty and breach of implied warranty. Plaintiffs also alleged strict product liability as to Defendant Manufacturer as well as product liability/negligence, and breach of implied warranty. As to Defendant Hospital, Plaintiffs alleged that proper procedures had not been followed to allow Defendant Corporation’s equipment to be in the operating room.

      Defendants Corporation and Manufacturer alleged they were not negligent, that their products were not defective in design and there was no causal connection between their products and Plaintiff’s injuries. They alleged the injuries were caused by the surgical negligence of Defendant Surgeon. They also alleged that Plaintiff 1 had lost his job for reasons unrelated to his health, that he was capable of finding similar employment, and there was no future income loss.

      Special Notes: Defendant Manufacturer offered $800,000 to settle. Plaintiffs submitted CCP §998 offers to compromise (settle) with that defendant in the total amount of $1.284 million.

      Plaintiffs had previously settled the medical malpractice portion of their action against Defendant Surgeon for policy limits in the amount of $980,251.98. Defendant Manufacturer settled the case eight days prior to trial for $985,000. Defendant Corporation settled for $500,000. Defendant Hospital settled for $25,000.

    • Failure to Treat A-Fib, Leading to Stroke
      Failure to Treat A-Fib, Leading to Stroke $865,000.00

      Facts: In January, Claimant, a 77-year-old retired school psychologist/educator, noted occasional heart palpitations lasting 15-20 minutes. She consulted physicians at Defendant Roe Medical Group. A diagnosis of atrial fibrillation was made. Some digitalis effect was noted. Claimant frequently complained of palpitations for the next three years and was consistently assessed with atrial fibrillation. As early as March her treating physicians noted that in spite of her diagnosis and need for anticoagulant therapy, Claimant was not on anticoagulant therapy. None was prescribed. At this point, Claimant began experiencing some fleeting left-sided numbness. She was put on a daily aspirin tablet. By June, three years later, Respondent’s physicians noted that Coumadin therapy should be considered; however, none was ever prescribed. On August 20th, 3-1/2 years after the initial diagnosis of atrial fibrillation, plaintiff suffered a significant embolic stroke.

      Injuries/Damages: Embolic stroke with left-sided paralysis; full dependency for all of her daily needs and household support. Emotional distress.

      Contentions: One of the more serious complications of chronic atrial fibrillation is thromboembolism with stroke. In order to prevent this catastrophe, long-term anticoagulant therapy is advocated in patients with chronic atrial fibrillation. Plaintiff sustained her significant stroke because of the failure of her physicians at Defendant Roe Medical Group to adequately treat her chronic atrial fibrillation.

      Special Notes: The case settled for $865,000 before depositions were taken. Claimant’s three adult children settled their potential wrongful death action for an additional $15,000.

    • Garrett v. Kaiser Foundation Hospitals, et al.
      Garrett v. Kaiser Foundation Hospitals, et al. $546,000.00
    • Failure to Diagnose CAD Leads to Myocardial Infarct
      Failure to Diagnose CAD Leads to Myocardial Infarct $1,175,000.00

      Facts: Five years prior to the events alleged, Mrs. DOE’s primary healthcare provider at ROE HEALTH PLAN diagnosed her with hypertension. The HEALTH PLAN’s records also indicate her family history of coronary artery bypass.

      Five years later, in early January, Mrs. DOE was 50 years old. She and Mr. DOE had been married for 33 years. Although she was a smoker, her overall health was good. Over the course of the next six months, she made multiple presentations to ROE medical facilities, in the emergency room, to primary care, to vascular surgery and to Urgent Care, with multiple signs, symptoms and risk factors for coronary artery disease. Despite an abnormal EKG, multiple risk factors and symptoms commonly associated with coronary artery ischemia, even with a confirmed diagnosis of atherosclerotic vascular disease in her legs, ROE physicians and healthcare providers never worked Mrs. DOE up for coronary artery disease. As a result, on June 11, 2006, Mrs. DOE suffered a major myocardial infarction, causing permanent damage to the functioning of her heart. In addition, complications associated with an intra-aortic balloon pump that was required for the emergency bypass procedure she had to undergo, resulted in an above-the-knee amputation of her right leg.

      Contentions: This was an action for damages brought by the Mr. and Mrs. DOE against Mrs. DOE’s health care plan providers following an myocardial infarct and an above-the-knee amputation of Mrs. DOE’s right leg which claimants alleged was a direct result of the negligence and failure to meet the standards of care and practice, as well as its own internal policies and procedures, of ROE HEALTH CARE PLAN, and its medical care providers. In failing to work up Mrs. DOE for coronary artery disease, defendants not only violated accepted standards of practice and care but they also violated their own written guidelines.

      Plaintiffs’ experts in the areas of family practice, cardiology and cardiovascular surgery testified that ROE HEALTH PLAN’s personnel violated the standard of care in failing to timely ensure that Mrs. DOE underwent proper testing to diagnose the nature and extent of her coronary artery disease, including EKG, stress testing, cardiac echo, a nuclear study if needed, and ultimately angiography. The standard of practice required such a workup on several occasions, as follows:

      1. Following Mrs. DOE’s emergency room visit on January 5th, the standard of care required primary care physicians who saw her in January and February, including her primary healthcare provider, to work her up for coronary artery disease as she was at extremely high risk based on the fact she was a long-time smoker, had a family history of coronary artery disease, suffered from hypertension and had elevated cholesterol and lipids. Further, physical examination indicated that Mrs. DOE had atherosclerotic vascular disease in the peripheral arteries in her legs – and the EKG done in the ER on 1/5/06 was abnormal, even according to ROE’s expert.

      2. Mrs. DOE was seen in Primary Care a total of five times: January 9th, January 16th, January 31st, February 7th, and February 9th. At each visit, the standard of care required the physician to work her up for coronary artery disease, and at each visit, no such workup was done or even ordered.

      3. The standard of care required a coronary artery disease workup for Mrs. DOE following the studies done on February 16th and 17th. Those studies showed that Mrs. DOE had at least moderate atherosclerotic disease in her legs, one of which was significant enough to require the placement of a stent in her left leg. Given the confirmation of this disease process which is always systemic, the standard of care again warranted a workup for coronary artery disease.

      4. The ROE healthcare providers had yet another bite at the apple on May 30th, when she was seen with a new symptom in Primary Care. At that time, according to the examining physician, Mrs. DOE’s primary complaint was “heartburn” and “epigastric pain and upward” into her chest. The physician diagnosed her with gastro-esophageal reflux disease. The doctor admitted in deposition that this new symptom is consistent with angina pain caused by coronary artery disease. She also admitted that the ROE guideline on GERD indicates that under these circumstances, coronary artery disease should be ruled out as to the cause of the symptom. She even conceded that she was unaware of the pre-existing abnormal EKG.

      Plaintiffs alleged that the medical personnel at ROE HEALTH CARE PLAN facilities should have known that she was at risk for a heart attack, and should have taken steps to prevent her from having the MI long before it occurred. Their failure to follow their own written policies and procedures on working up coronary artery disease was a direct cause of the eventual loss of her leg, and her ensuing damages.

      Defendants alleged that at all times they complied with the standards of practice.

      Injuries/Damages: Until the events giving rise to this action, Mrs. DOE had worked for many years side-by-side with her husband in several of their own businesses, providing services ranging from simple clerical tasks to complicated accounting and managerial skills. As a result of the MI and amputation, along with the emotional trauma she suffered, Mrs. DOE is now permanently and totally disabled. Mr. DOE must not only deal with the physical and psychological changes to his lifelong partner, he has had to take over or hire out all of his wife’s previous job duties – and attempt to be her full-time caretaker and emotional support provider at home, along with trying to manage his personal struggles that come as a result of the injuries inflicted upon his wife.

      Special Notes: Shortly before the matter went to arbitration, the parties settled the matter for $1.175 million.

    • VA Delay in Diagnosis of TIA/Stroke
      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 management.

      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 migraines.

      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 dissections.

      Special Notes:

      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 before trial.

    • Jensen v. Mark Stern, M.D.
      Jensen v. Mark Stern, M.D. $600,000.00
    • Paul Adkins and Katie Adkins v. Kaiser Foundation Hospitals
      Paul Adkins and Katie Adkins v. Kaiser Foundation Hospitals $123,000.00
    • Motor Home Goes Down Embankment
      Motor Home Goes Down Embankment $700,000.00

      Facts: Defendant, James Sinks, rented a Pace Aero Motor Home from Blue Chip Motor Homes. He rented the motor home for a trip to Mexico with Donna Magistro, La Vonne Caldwell and Chuck and Lynn Sinks. The defendant had never driven a motor home before, but planned to tow a 16-foot catamaran. He received information from Blue Chip before taking it out later in the afternoon. According to the testimony of Donna Magistro, defendant Sinks drank several beers during the hours it took to prepare for the trip. According to Magistro and defendant Sinks himself, the only stable seat belt anyone was able to locate in the vehicle was for the driver. The group left at approximately 9:00 p.m. and headed eastbound on Interstate 8 in dry, clear conditions. The plaintiffs testified that they (along with the other passengers) asked Sinks to slow down on multiple occasions. The plaintiffs felt that at several times Sinks did not have control of the vehicle. The plaintiffs also testified that Sinks had at least one more drink while on the road.

      The parties made a stop in order to tack down something that had become loose. At this time, they all became aware of some strong winds. However, the plaintiffs testified that Sinks continued to drive at what they considered an excessive rate of speed, a position disputed by the defendants. As the motor home headed down a steep grade, it was hit by a gust of wind. This caused Sinks to slam on the brakes and lock the wheels. The motor home then went over to the right shoulder of the roadway, over a six-inch asphalt curb, and down a 110-foot embankment.

      Contentions: Plaintiffs contended that Blue Chip Motor Homes was liable for its failure to provide adequate access to seat belts for the passengers. The plaintiffs also contended Blue Chip did not provide adequate instruction or training in the operation of a motor home to defendant Sinks. The plaintiffs contended defendant Sinks was negligent for driving at an excessive rate of speed. They also contended he was intoxicated at the time the accident occurred. Sinks blood alcohol level was .01%.

      Defendants contended that the accident was caused by “an act of God” due to the high winds. The defendants also contended that the plaintiffs were contributorily negligent for riding with Sinks with knowledge he had been drinking. Defendant Sinks denied travelling at an excessive speed and denied any relevance to alcohol consumption.

      Injuries/Damages: Donna Magistro suffered a burst fracture at T-11 and underwent a laminectomy at T-10/T-11. She sustained a reduction of intraspinal fragments and decompression of the spinal cord and T-11 nerve root with placement of Harrington-Edwards rods from T-9 to L-l. She also suffers from residual back pain and discomfort. La Vonne Caldwell suffered a 20% compression fracture of L-1; a comminuted inter-articular fracture of the anterior superior aspect of the calcaneus; an avulsion fracture of the right foot; particle avulsion; anterior cruciate ligament damage; and a chondral defect of the right knee with residual discomfort in her back and knee.

      Donna Magistro: Past Medicals-$46,000. Loss of Income-$80,000. Future Loss of Income-$600,000. La Vonne Caldwell: Past Medicals-$37,000. Loss of Income $15,000.

      Special Notes: The plaintiffs demanded $800,000 per C.C.P §998 for Donna Magistro and $250,000 per C.C.P. §998 for LaVonne Caldwell. The defendant offered $400,000 and $100,000 respectively.

      Magistro settled for $500,000 cash, and Caldwell settled for $150,000 cash.

    • Long v. Ervin Wheeler, M.D.
      Long v. Ervin Wheeler, M.D. $689,000.00
    • Brain Injury from Overdose of Insulin
      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.

    • Weamer v. Samuel C. Hon, MD
      Weamer v. Samuel C. Hon, MD $600,000.00
    • Lindburg, et al. v. Unnamed Hospital, Roe Dr. 1, Roe Dr.
      Lindburg, et al. v. Unnamed Hospital, Roe Dr. 1, Roe Dr. $450,000.00
    • Retaliation For Supporting Gender Discrimination Claim
      Retaliation For Supporting Gender Discrimination Claim $966,500.00

      Facts: Plaintiff worked in the Planning Department at the City of Chula Vista from January 1972 until he was fired in August of 1996. During his employment, he advanced from being a Technician to a Senior Planner. He loved his job, and in his job performance evaluations he was consistently rated as “outstanding.”

      In June or July of 1993, he became romantically involved with a subordinate in his department (Jane Doe). In June or July of 1994, the relationship ended. The plaintiff disclosed the relationship to his superiors at the City in July of 1994. Despite the fact that the City subsequently took the position that the plaintiff “lied” about the relationship when questioned, a review of information from that time frame demonstrated that the accusation that the plaintiff “lied” was made later as an attempt to find some legitimate reason to end his employment.

      Because of interim events, Jane Doe eventually asserted a claim of discrimination against Defendant City. During the course of the investigation of Jane Doe’s claims, the Plaintiff told the investigating attorney of another incident that potentially involved a claim of gender discrimination which had occurred within the Planning Department in 1995. The attorney made no attempts whatsoever to follow up this issue. The plaintiff then brought it to the City of Chula Vista. He sent a memo outlining his concerns to the Assistant City Manager, Defendant Sid Morris, on July 10, 1996.

      The conclusion of the investigation regarding Jane Doe’s discrimination/harassment allegations was that although many of the acts alleged by her factually occurred, they did not rise to the level of harassment. The plaintiff was completely cleared of any allegations for which he was originally under investigation. No discipline of any kind was ever recommended in regard to the plaintiff.

      The City’s long-standing policies concerning complaints of gender discrimination, specifically when involving the head of a department, were to retain an outside independent investigator to conduct an investigation and to notify the individual against whom the complaint had been made, in writing, that the charges had been brought. At the time the plaintiff brought his complaint against Mr. Leiter concerning gender discrimination, Mr. Leiter was the head of the Planning Department. The City decided to handle the Plaintiff’s complaint “in-house.” Instead of an outside investigator, the Assistant Director of Human Resources, Defendant Melody Kessler, was allowed to conduct her own “investigation.” Mr Leiter was never advised in writing, as required by their policies, that a complaint of gender discrimination had been made against him. Ms. Kessler concluded that the plaintiff’s allegations were “unproven and unfounded.” Kessler concluded her investigation on August 15, 1996.

      On August 26, 1996, plaintiff delivered a memo to Kessler expressing his dismay regarding the “findings” of her investigation. Two days later, plaintiff was presented with his Advance Notice of Termination, indicating that he had been fired by the City of Chula Vista. This document was authored by Bob Leiter. Jane Doe was fired from her job the same day.

      Injuries/Damages: Loss of earnings between $494,237-$531,587. Emotional distress

      Contentions: Plaintiff claims defendants retaliated against him for protected conduct in making good faith complaints against prohibited employment practices. Defendants committed intentional and negligent infliction of emotional distress, statutory violations, tortious discharge and defamation. The plaintiff was fired in retaliation for supporting the discrimination claim of Jane Doe and also the gender discrimination claim of another job applicant at the City of Chula Vista.

      Special Notes: Settlement was in the form of cash payment plus periodic payments. Plaintiff was also entitled to his full retirement benefits.

    • Infection from Perforated Urethra
      Infection from Perforated Urethra $160,000.00

      Facts: Plaintiff Mr. H , a 51-year-old car salesman, was born with congenital hypospadias, a condition that required multiple dilatations of his urethra during his childhood and teenage years. As a result, he developed a urethral stricture for which he sought treatment from the defendant, Dr. Lipsitz. He initially consulted Dr. Lipsitz in January, at which time a dilatation was scheduled.

      On June 15th, the defendant performed a urethral dilatation that resulted in a perforation to the urethra. The perforation caused leakage of urine into the plaintiff’s scrotum and perineum. This condition went untreated until the defendant performed an incision and drainage on June 21st. By that time, the plaintiff had developed a massive infection and massive scrotal abscess that required two subsequent incisions and drainage in August and October. Ultimately, another physician performed a urethroplasty in November, but the infection did not disappear until April of the following year.

      Contentions: Plaintiff contended that the defendant violated the standard of care in failing to appropriately treat the leakage of urine upon notification by the plaintiff following the surgery on June 15th.

      Defendant contended that he was not notified of the problem until June 19th, and that the delay in treating the problem from June 19th to June 21st did not cause any injuries or damages to the plaintiff.

      Injuries/Damages: As to Mr. H: massive infection requiring hospitalizations in August, October and November; the infection did not clear up until April of the following year. Plaintiff also sustained economic losses from the collapse of two car dealerships. As to Mrs. H: Loss of consortium.

      Special Damages: Past medicals of approximately $7,000; Economic losses ·of approximately $300,000 (disputed).

      Special Notes: Plaintiff demanded $75,000 prior to trial. Defendant offered $35,000 in settlement conference. Plaintiffs’ attorney asked the jury for approximately $500,000. Defendant’s attorney asked the jury to award $25,000. The jury was out four hours after a four-day trial and came back with a $170,000 verdict for plaintiffs.

    • Elder Dies From Multiple Infected Bed Sores
      Elder Dies From Multiple Infected Bed Sores $750,000.00
    • Kirwan v. Jose Perez, Nick’s Dairy Commodities, et al.
      Kirwan v. Jose Perez, Nick’s Dairy Commodities, et al. $189,000.00
    • Sobczak, et al. v. Motlagh, M.D.; Knauf, M.D.; Scripps Hospital East County
      Sobczak, et al. v. Motlagh, M.D.; Knauf, M.D.; Scripps Hospital East County $300,000.00
    • Asphyxiation by Waist Restraint
      Asphyxiation by Waist Restraint $700,000.00

      Facts: Myrt Wilder was a vigorous 94-year-old when he entered Doe Convalescent Hospital. He enjoyed playing cards, working with wood and visits from his daughters. In the early morning hours of April 2nd, Myrt Wilder was found hanging by a waist restraint from the side of his bed at Doe Convalescent Hospital. Mr. Wilder was dead. According to Mr. Wilder’s roommate, both he and Mr. Wilder had called for help for approximately 30-45 minutes prior to Mr. Wilder’s death, but no one responded to their cries. His roommate could not reach the call button (which was routinely found out of reach of residents according to HCFA records). Their CNA was doing laundry because the facility didn’t maintain enough linens for its residents. Staff failed to monitor Mr. Wilder on a regular basis. The Medical Examiner found the cause of death to be “restrictive asphyxia by waist restraint after falling out of bed.”

      Injuries/Damages: Emotional distress damages, wrongful death, enhanced remedies per the Elder Abuse statutes, funeral expenses.

      Contentions: The family of decedent alleged that defendants engaged in a pattern of conduct designed to maximize profits from their treatment of vulnerable elderly persons entrusted to their care, including Mr. Wilder. Defendants engaged in a general pattern and practice in the numerous nursing homes owned and operated by them, including but not limited to Doe Convalescent Hospital, of failing to employ adequate staff, failing to purchase adequate supplies necessary to maintain the quality of care required by both state and federal regulations designed to protect this vulnerable segment of our society. This conduct on the part of Defendants culminated in the death of Mr. Wilder.

      Plaintiffs further contended that defendants’ conduct was the result of corporate-imposed budget constraints to maximize their profits and to allow the officers of the Defendants to receive large compensation. In fact, Defendants’ CEO/ED compensation plan was structured in such a way so as to specifically reward nursing home administrators for putting profit before care of their elderly residents.

      Special Notes: Plaintiffs served a Statutory Offer to Compromise on October 5th for $450,000. This offer was rejected. Plaintiffs then were granted leave to amend the complaint to add punitive damages, and on November 8th made a demand for Defendants’ applicable policy limits of $1 million. The case was mediated before the Hon. Herbert Hoffman (retired) four days prior to trial and settled for $700,000.

    • Klug v. Roe Hospital and Roe Inc (settlement), James F. Marino, M.D. (arbitration)
      Klug v. Roe Hospital and Roe Inc (settlement), James F. Marino, M.D. (arbitration) $240,000.00
    • Failure to Diagnose Rectal Cancer
      Failure to Diagnose Rectal Cancer $850,000.00

      Facts: Defendant doctor of defendant medical group was plaintiff’s primary caregiver. On August 31st, plaintiff, a 37-year-old metallurgical engineer, was seen by Defendant doctor in a 15-minute examination for complaints of nausea and dizziness with exercise for several months. She also expressed concern about a mole on her right pubis. Defendant doctor ordered routine blood work, including a CBC. Results were reported back on September 5, showing clear evidence of iron deficiency anemia, and the need to slightly reduce the patient’s thyroid medication. Defendant doctor saw the thyroid results but not the anemia results.

      On January 18th, Defendant doctor instructed her nurse to advise plaintiff that her thyroid level was good but that her iron level was low and that she needed to take ferrous sulfate as well as eat foods rich in iron. Plaintiff complied, although she had the side effects of nausea and constipation. Between late February and early July, plaintiff continued to have her previous symptoms of nausea and fatigue but also developed constipation and irritable bowel syndrome. Defendant medical group advised her that she could have some constipation because of the iron supplement.

      On July 7th, plaintiff was seen with a complaint that her last two menstrual cycles had been longer but not heavier than normal. Medical group personnel recommended that her IUD be removed and also ordered routine blood work. This time her thyroid level was good but there was evidence of significant anemia.

      After plaintiff had her IUD removed on July 23rd, she was told that her TSH level remained good but that her iron level was still low. She was told for the first time that she was “somewhat” anemic. No additional follow-up was suggested or required. Her menses returned to normal within two cycles, but she continued to have gastrointestinal problems over the next several months, including stomach pain within 2-3 hours following meals. She also was constipated.

      From September through February of the following year, plaintiff was out of Defendant medical group system as a result of a change in her insurance.

      On February 24th, plaintiff called defendant doctor and left a message indicating that she sometimes felt as though she was going to black out. She thought it might be related to the medication Inderal which she was taking for migraines. Plaintiff was not scheduled for an appointment. Instead the doctor changed her dosage of Inderal.

      On May 5th, Plaintiff called Defendant doctor indicating she had no appetite at all. A nurse returned the call the next day. On May 9th plaintiff was seen by Defendant doctor with a complaint of lack of appetite, having lost 30 pounds since September, secondary to no appetite. The doctor’s assessment was weight loss in a “compulsive female.” She sent plaintiff to a dietitian for a consult.

      Blood work drawn on May 9th showed plaintiff to be severely anemic and hyperthyroid, but the results were not conveyed to plaintiff until May 14th by a partner of plaintiff’s doctor (who had gone on vacation). He advised plaintiff that she was so anemic she should be seen in Urgent Care that day. Blood work was re-run, but the doctor did not see a life-threatening situation. He advised plaintiff to take her iron supplements, decrease her thyroid medication and follow up with Defendant doctor.

      Plaintiff called for Defendant doctor repeatedly over the next several days. She was eventually seen on June 17th she was assessed as having severe anemia with constipation, pale and hyperthyroid. The doctor attempted to obtain both endocrinology and OB/GYN consults. While waiting for those consults, plaintiff called the medical group on June 27th indicating severe constipation for two weeks. She was advised to take a laxative as well as encouraged to eat fruits and vegetables.

      On July 5th plaintiff was seen in the ER at Defendant medical group. A rectal examination revealed a firm, irregular mass in her rectum. She underwent surgery on July 11th. Surgeons found a 6 cm well-to-moderately-differentiated adenocarcinoma of the rectum, invading the entire bowel wall with one of seven regional lymph nodes positive for cancer.

      Injuries/Damages: Plaintiff underwent a low anterior resection with colostomy. Her life expectancy was less than five years. Ms. Shilling eventually succumbed to the cancer.

      Contentions: This tragedy was avoidable had Defendants complied with the applicable standards of practice and care as well as their own policies and protocols; that the standard of care was repeatedly violated as the personnel at Defendant medical group repeatedly failed to follow up with Plaintiff’s continued evidence of worsening iron deficiency anemia and increasing gastrointestinal symptoms.

      Special Notes: As a family practitioner, Defendant doctor was required to manage a “patient panel” of 3,000 patients, five days a week, every 15 minutes. Additionally, she was required to return patient phone calls as well as handle one Urgent Care Clinic per week, either at night or on a weekend. Physicians at Defendant medical group would frequently not have access to their patient’s primary charts which were kept at another location. The same doctor who missed this diagnosis also missed a diagnosis of appendicitis. See the Warren case.

    • Feeding Tube Placement Error
      Feeding Tube Placement Error $110,000.00

      Facts: 89-year old plaintiffs’ decedent, John W. Parker, was admitted to Sharp Knowlwood Convalescent Hospital. During the course of his stay, the decedent had a jejunal feeding tube inserted in his left lower abdomen and a Groshong catheter inserted into his left subclavian vein on his left upper chest. Eight days later, the feeding tube intended to be inserted into his left lower abdomen was inserted into the Groshong catheter in his left upper chest. The feeding tube was connected to a bag containing feeding material, including osmolite and Kana Banana which were intended for the decedent’s gastrointestinal tract. The feeding tube was also connected to a pump which pumped the feeding materials through the feeding tube. By the time the mistake was discovered, only one-quarter of the materials remained in the bag. The balance of the feeding materials were pumped into the decedent’s bloodstream. Within eleven hours, he died. However, neither the decedent’s treating physician, defendant Richard Rowen, M.D., who had knowledge of what actually occurred, nor Sharp Hospital, told the plaintiffs about the sequence of events leading up to the decedent’s death. Additionally, Dr. Rowen signed a death certificate listing aspiration pneumonia, as the cause of his death and failed to make any reference to the feeding tube being connected to his subclavian catheter. Dr. Rowen also failed to notify the coroner and told the hospital that the situation was not a “coroner’s case.”

      Contentions: Plaintiffs contended that the defendants were negligent in allowing the feeding tube to be attached to the decedent’s subclavian catheter, and claimed this error was the cause of his death. The plaintiffs also contended that the defendants breached their fiduciary duty to them by failing to inform them of what had occurred.

      Defendants contended that the incident did not cause decedent’s death and that there was no breach of fiduciary duty to him. Richard Rowen, M.D., contended that he was told that the hospital would notify the family. He also contended that the hospital regulations required the hospital to notify the coroner.

      Injuries/Damages: The family suffered emotional distress. Funeral and burial expenses totaled $1,500.

      Special Note: The plaintiffs demanded $85,000 per C.C.P. §998 as to Sharp Hospital and $45,000 per C.C.P. §998 as to Richard Rowen, M.D. The plaintiffs settled for $110,000.

    • Birth Injury
      Birth Injury $1,300,000.00

      Facts: On February 4th, Plaintiff Mother presented in labor at Defendant Zoe Hospital early in the morning with an approximately 37-week gestation pregnancy. Defendant Dr. Roe was on call for her primary obstetrician and assumed care of Plaintiff mother and her unborn child, minor Plaintiff Baby Doe. After approximately nine and a half hours of labor, Dr. Roe attempted forceps delivery with Keilland rotation, but no further descent occurred. Dr. Roe applied Luikart-McLane forceps and traction, which were also unsuccessful. Dr. Roe made three attempts with the forceps before moving to perform a Cesarean section, almost one hour later. Baby Doe was delivered with an APGAR score of zero, a tight nuchal cord times two that was dry of blood, and marked molding of the head. Resuscitation efforts were begun, and Baby Doe eventually established a pulse and was placed on a ventilator.

      Contentions: Plaintiff claimed that Defendant Doctor was negligent in failing to promptly deliver Baby Doe with indications of fetal distress; that he was negligent in the forceps extractions, both in the attempts and in the manner in which he used the forceps. Plaintiff claimed that Defendant Hospital’s nursing staff violated the standard of care in failing to recognize that their data collection was improper, i.e., distinguishing between heart rates coming from the mother versus the fetus in the second stage of labor. In addition, they failed to follow their own hospital policies and place an internal monitor in a high-risk situation. Also, they failed to discuss with the physician the station of the fetus before he attempted a mid- to high-forceps delivery.

      Defendant Doctor argued that he complied with the standard of care at all times.

      Defendant Hospital argued that any and all damages sustained by the minor Plaintiff were solely the result of negligence on behalf of Defendant Doctor.

      Injuries/Damages: The.minor Plaintiff tests a full scale IQ of 58. At the age of 4, he is unable to walk independently, exhibits severe cognitive deficits, extreme hyperactivity, and gross motor deficits consistent with diffuse brain damage. Economic damages were estimated at $3,296,872.

      Special Notes: The doctor agreed to pay $1 million, of which $200,000 went to Mother Doe for her emotional distress, $250,000 to Baby Doe for his emotional distress claim, and the remainder applied to his economic damages. The hospital settled for $300,000.

    • Brain Injury From Head Trauma
      Brain Injury From Head Trauma $12,617,674.00

      On Friday, July 26, 2019, in the late afternoon, a San Diego Superior Court jury awarded $12,617,674 to a 32-year-old Encinitas man who alleged negligence by Sheriff’s Deputies and Vista Detention Center nurses for failing to identify and treat his low sodium and his traumatic brain injury that he suffered while detained. The plaintiff was represented by trial attorney Robert F. Vaage of San Diego.

      David Collins sued the County of San Diego, its Sheriff’s Deputies Matthew Chavez and David Sanchez, along with Vista Detention Center nurses Roela Carolino and Johnathan Symmonds for negligence related to his arrest on November 18, 2016. At the time, he had a condition called hyponatremia caused low sodium, chronic illness, and dehydration. His symptoms included slurred speech, trouble walking, and hallucinations.

      Mr. Collins asked for paramedics who were at the scene. Before the paramedics could perform an assessment, the deputies hauled him off to jail for “drunk in public” under Penal Code section 647(f).

      This case really is the “tip of the iceberg” of a larger problem, which is the apparent abuse of Penal Code section 647(f) by the Sheriff’s Department, particularly in North County. The case also highlights the appalling level of care offered in the San Diego County Jail system.

      During his detention, Mr. Collins fell, twice, striking his head. In addition to his hyponatremia, he had a traumatic brain injury. He was not transported to the hospital right away. By the time he reached the hospital, his sodium levels were critical and he had brain bleeding and contusions.

      When the hospital physicians tried to raise his sodium for fear of the consequences from the head trauma, he developed a further brain injury called osmotic demyelination syndrome or ODS.

      The jury found that the deputies were negligent when they pulled Mr. Collins away from the paramedics and transported him to the Vista Detention Center. The jury found that the jail nurses committed medical negligence for failing to get Mr. Collins proper medical care for his hyponatremia and brain injury.

      The brain injury to the frontal lobe from striking his head in jail permanently affects his judgment and insight, and the ODS affects his mobility and speech. Both were preventable had Mr. Collins been transported to the hospital by the sheriff’s deputies or the paramedics either before his arrest or booking, or right after he fell in the jail.

      The County of San Diego asked to go to a mediation with retired Judge Herb Hoffman. At that mediation, Judge Hoffman recommended $3 million both to the County and to Mr. Collins to settle the case. Plaintiff accepted the number, but the County Board of Supervisors refused it and only offered $500,000.

      Throughout the trial and to the media, the County portrayed Mr. Collins as a binge drinker and alcoholic who did this to himself. His blood tests were negative for alcohol and drugs. The jury considered whether Mr. Collins was partially responsible for his injuries and found that none of his actions were the cause of his brain injuries. They found zero fault by him.

      The jury awarded Mr. Collins $8,000,000 in pain and suffering and $4,617,674 in past and future income loss and medical costs.

      Mr. Collins previously settled with the treating physicians and hospital for a confidential amount.