James A. Pribilo v. Daniel P. Masto, M.D., et al.
Published: Jun. 1, 1996 | Result Date: Apr. 16, 1996 | Filing Date: Jan. 1, 1900 |Case number: EC012871 – $2,290,000
Judge
Court
L.A. Superior Central West
Attorneys
Plaintiff
Defendant
Experts
Plaintiff
S. Myron Goldstein
(medical)
Michael Peck
(medical)
Joyce Elaine Pickersgill
(technical)
Richard Wright
(medical)
Gerry Aster
(medical)
Defendant
Michael Meyers
(medical)
Leo A. Gordon
(medical)
Jay N. Schapira M.D.
(medical)
Facts
On the morning of August 4, 1992, the plaintiff, James A. Pribilo, a 37-year-old construction contractor and real estate agent, presented to the emergency room at the defendant hospital with an elevated white blood count, fever and abdominal pain in the right lower quadrant. He was seen by the defendant emergency room physician. A physical examination showed that his abdomen was soft, with minimal tenderness. He was given Toradol, 30 mg., IM, with complete resolution of the pain. A repeat abdominal examination approximately 30 minutes later showed his abdomen to be soft, non-tender and non-distended. The defendant emergency room physician diagnosed adominal pain, uncertain etiology, resolved. The plaintiff was discharged and told to return immediately if he had an increase in symptoms or if the pain localized to his right lower quadrant. The plaintiff first saw the defendant, Daniel Masto, M.D., a general surgeon, on the evening of August 4, 1992. Dr. Masto was called by the plaintiff's family after the plaintiff continued to have abdominal discomfort. He met the plaintiff at the emergency room. The plaintiff related the same history given to the defendant emergency room physician earlier. The plaintiff claimed that he told the defendant emergency room physician that the pain was generalized at this time. (The triage nurse noted that the pain was "periumbilical" and several hours later, the admitting nurse noted that the plaintiff believed he was hospitalized for "pain in his entire abdomen.") Dr. Masto examined the plaintiff and found him to be tender in the right lower quadrant with a low grade fever and leukocytosis. The defendant admitted the plaintiff and performed an emergency appendectomy. The plaintiff was hospitalized for four days during which time he spiked fevers and received continuous antibiotics. Cultures taken from the plaintiff's appendix at the time of surgery grew out E. coli and bacteroides fragilis. They were sensitive to all the antibiotics tested. The pathology report of August 10, 1992, showed that the plaintiff had suffered periappendicitis rather than acute suppurative appendicitis as diagnosed. On August 10, 1992, Dr. Masto saw the plaintiff in his office at about 4:00 p.m. He suspected and treated for a developing wound infection. (His notes indicated the incision site showed no visual sign of a wound infection.) The plaintiff was told to return to the doctor's office on August 24, 1992. On the night of August 10, 1992, the plaintiff presented to the defendant hospital via paramedics. While in the emergency room, the plaintiff was diagnosed with pneumonitis and status post appendectomy. The defendant emergency room physician contacted Dr. Masto to discuss the plaintiff's condition. Dr. Masto allegedly dismissed the plaintiff's complaints as normal or minor. The plaintiff was discharged and told to return to the emergency room if his symptoms worsened and to follow-up with his private physician. On the morning of August 11, 1992, the plaintiff presented to the defendant hospital. Dr. Masto met the plaintiff at the hospital and an EKG showed that the plaintiff had suffered a heart attack. An angioplasty was performed which demonstrated thrombotic occlusion of the proximal and mid-left anterior descending arteries. The family dismissed Dr. Masto after he allegedly failed to see the plaintiff who had been hospitalized for 36 hours. His new physician determined that the plaintiff had perforated diverticulitis. The plaintiff claimed that he developed multi-organ failure and adult respiratory distress syndrome (which responded to assisted ventilation and the use of antibiotics), peritonitis and heart attack. The plaintiff brought this action against the defendants based on medical malpractice and negligence theories of recovery. (The defendant hospital and defendant emergency room physicians settled with the plaintiff prior to trial).
Settlement Discussions
The plaintiff made a C.C.P. º998 settlement demand for $250,000. The defendants made a settlement offer of $30,000 on the first day of trial. The defendant hospital settled with the plaintiff for $40,000. The defendants, emergency room physicians and their medical group, settled with the plaintiff for $240,000.
Specials in Evidence
$20,000 (out of pocket) [$400,000 total] $50,000 $265,000 $1,400,000
Injuries
The plaintiff alleged that he underwent an appendectomy, suffered a myocardial infarction, adult respiratory distress and multi-organ failure as a result of the defendants' negligent medical care. The plaintiff also alleged that he underwent an angioplasty, a laparotomy, colon resection and a colostomy, a thoracotomy and decortication, a reversal of the colostomy and multiple diagnostic tests and procedures as a result of the defendants' medical negligence. The plaintiff further alleged that he became addicted to heroin as a result of his unbearable pain and claimed that he sustained permanent damage to his heart muscle which will shorten his life expectancy and will require a heart transplant in the future.
Result
**** CONT. OF FACTS... The family dismissed Mr. Masto after he allegedly failed to see the plaintiff who had been hospitalized for 36 hours. His new physician determined that the plaintiff had perforated diverticulitis. The plaintiff claimed that he developed multi-organ failure and adult respiratory distress syndrome (which responded to assisted ventilation and the use of antibiotics), peritonitis and heart attack. The plaintiff brought this action against the defendants based on medical malpractice and negligence theories of recovery. (The defendant hospital and defendant emergency room physicians settled with the plaintiff prior to trial).
Other Information
The verdict was reached approximately two years and nine months after the case was filed. Motions for judgment notwithstanding the verdict and for new trial are pending. The judge awarded the plaintiff judgment with periodicized payments for future medical expenses based upon the testimony of the plaintiff's experts, over a period of nineteen years. He awarded prejudgment interest on all payments and allocated the settlement based upon the jurors' finding of present value, ignoring evidence presented of the cost of an annuity to be $477,000. A motion to amend the judgment nunc pro tunc is pending. The defendant has allegedly uncovered evidence of juror misconduct which has been submitted to the court. Attempts to settle this matter post judgment have thusfar been unsuccessful.
Deliberation
3 days
Poll
12-0 (liability against Dr. Masto), 11-1 (damages)
Length
30 days
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