Confidential
Settlement – $1,325,000Judge
Court
L.A. Superior Long Beach
Attorneys
Plaintiff
Defendant
Mark V. Franzen
(Carroll, Kelly, Trotter, Franzen, McBride & Peabody)
Experts
Plaintiff
Sharon K. Kawai M.D.
(medical)
Kenneth Litwack
(medical)
David T. Fractor Ph.D.
(technical)
Virgil Williams
(medical)
Jill Klessig
(medical)
Dennis R. Malkasian
(medical)
Defendant
Susan P. Bleecker CPA
(technical)
Ronald S. Fishbach
(medical)
Kendall S. Wagner M.D.
(medical)
David Strauss
(technical)
Anne Barnes R.N.
(medical)
Barry I. Ludwig M.D.
(medical)
Martin Cooper M.D.
(medical)
Gene Bruno M.S., C.R.C., C.C.M., C.D.M.S.
(technical)
Elliot Wagner
(medical)
Facts
Plaintiff, 49, was suffering from complaints of back pain for which he sought medical care from an orthopedic
surgeon on Nov. 17, 1997. After examination and an X-ray of his spine, the orthopedist opined that plaintiff
was likely suffering from degenerative disc disease with sciatic pain. The orthopedist prescribed bed rest, anti-
inflammatory medications, pain medications and a muscle relaxant. The plaintiff returned for a re-check of his
condition on November 24 and was reported to be 60 percent improved. He was released to return to work.
On November 25, plaintiff returned to work but was unable to complete his shift due to increased back pain.
The plaintiff contacted the orthopedistÆs office on November 26, and reported the increased pain. The plaintiff
was seen that day at approximately 1 p.m.
According to the physicianÆs chart note and testimony, plaintiff did not exhibit signs of fever or chills, his
motor and neurological examinations were normal. However, pain and some weakness in the lower extremities
was reported. An MRI study was ordered that day to rule out a herniated disc.
The plaintiff accompanied by his son, went to the MRI center at 4 p.m., that same day, wherein the diagnosis
of a lumbar epidural abscess and meningeal inflammation extending into the cervical area was made by two
radiologists who acknowledged that the condition constituted a medical emergency and a life threatening
condition.
The radiologist contacted the office of the orthopedic surgeon, which was closed, and a message was left with
the answering service to page the physician to call the MRI center. The orthopedic surgeon testified he never
received the page. Although a return call was never received by the radiologist, no further attempts were made
to contact any physician or the patient to obtain medical treatment, even though the radiologist was at the
center for another five hours.
On Friday morning, plaintiff awakened and was unable to move his legs and was suffering arm weakness. A
call was made to his orthopedic surgeon who made contact with the MRI center and was advised of the
diagnosis made two days prior. The orthopedic surgeon immediately ordered plaintiff to be transported by
ambulance to the hospital, but while the ambulance was on the way, plaintiff suffered a cardiac/respiratory
arrest due to an infarction of the spinal cord as a result of the extension of the infection.
For several days, plaintiff was comatose and he continued on life support for several weeks. However, once
antibiotics were administered, his condition stabilized and improved. He was able to wean off life support.
Eventually, he was able to eat without a feeding tube and breathe on his own. However, his spinal cord had
suffered permanent damage which has left him without meaningful use of his arms and legs.
At the present time, plaintiff is dependent on skilled nurses to care for him, and to change his position in bed.
He has no bladder or bowel control, but he is able to feel continuous pain from the severe leg and arm spastic
contractions.
Settlement Discussions
<S>A voluntary settlement conference in December 1999 with Harold Hunter resulted in an offer of $687,000 total, including purchase of an annuity. Settlement discussions mediated by Judge Richard Charvat resulted in eventual settlement. C.C.P. Section 998 global demand of $2,750,000.</S>
Specials in Evidence
$25,000 (out of pocket); $32,000 (Medi-Cal lien) $60,000 $360,000 $4.2 million
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