Brian Lee Burns v. Scripps Mercy Hospital, Michael Bongiovanni, Elizabeth Del Pozzo
Published: Nov. 1, 2001 | Result Date: Aug. 9, 2001 | Filing Date: Jan. 1, 1900 |Case number: GIC748521 Verdict – $0
Judge
Court
San Diego Superior
Attorneys
Plaintiff
Defendant
Clark R. Hudson
(Neil Dymott Hudson, APLC)
Experts
Plaintiff
Richard C. Goodman
(medical)
Arthur S. Shorr
(medical)
Facts
As a result of a vehicle accident on May 20, 1999, the plaintiff, a pedestrian, was taken to Scripps Mercy
Hospital and was found to have sustained bilateral tibial fractures and a left fibular fracture. The co-defendant,
Dr. Bongiovanni, first saw the plaintiff on May 21, 1999, the day following his accident. Dr. Bongiovanni
recommended open reduction and internal fixation. The plaintiff, who had a history of mental illness, denied
consent to surgical treatment. As a result of the plaintiff's refusal to undergo surgery, he was placed in leg casts
and on May 25, 1999 he was examined by Dr. Koelle, a psychiatrist, who recommended that the plaintiff be
placed on a conservatorship as he seemed unable to take care of himself. Dr. Koelle indicated that he would
initiate the conservatorship process.
On June 2, 1999, the co-defendant, Dr. Bongiovanni, executed a surgical affidavit on behalf of the plaintiff in
which he noted the potential risks to the patient if surgery was performed but, nevertheless, he believed that the
benefits of surgery far outweighed the risks. A second opinion was obtained from another physician who
concurred with Dr. Bongiovanni.
On June 7, 1999, co-defendant Elizabeth S. del Pozo filed a petition for a conservatorship hearing to be heard
on July 6, 1999. She was also provided with letters of temporary conservatorship over the plaintiff and his
estate. The letters of temporary conservatorship authorized the defendant del Pozo to consent to medical
treatment to have the plaintiff's legs treated, to collect the plaintiff's assets and have him placed in an
appropriate care facility. The defendant del Pozo never consented or authorized the plaintiff's surgery.
On June 24, 1999 the plaintiff was transferred to the Behavior Health Unit (BHU) and by
that time his legs appeared to be healing. At that point, surgical intervention was no longer
advised as the risks then outweighed the benefits. During the plaintiff's stay at the Behavior
Health Unit there is some evidence that the plaintiff requested surgical treatment, but there is no
documentation to support this.
Settlement Discussions
The plaintiff made a demand of $200,000. The defendant offered a waiver of costs.
Specials in Evidence
$38,812 None None anticipated $290,000
Result
At trial, the plaintiff asked the jury to award all medical expenses and $1,000 per month for the rest of the plaintiff's life to compensate him for his pain and suffering. The jury rendered a verdict in favor of the defendant Dr. Bongiovanni and determined his treatment of the plaintiff met the standard of care. Counsel for Mercy Hospital requested a 402 hearing on plaintiff's expert on conservatorships, Dr. Schorr. This hearing took place prior to his testimony and the court found him not qualified to give opinions in this area. The court precluded all of his testimony and indicated to plaintiff's counsel that he was inclined to grant a nonsuit. Mercy Hospital accepted a dismissal for a waiver of costs.
Deliberation
40 minutes
Poll
12-0
Length
seven days
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