Facts

At the time of events giving rise to this litigation at Palo Verde Hospital in Blythe, the hospital was owned by Brim Hospitals Inc. and Province Healthcare Company Inc. The hospital was
subsequently sold and at the time of trial was organized as a public entity known as Palo Verde Healthcare District. The only other defendant at trial was JFK Medical Center of Indio, which is owned by Tenet Healthcare.

On Aug. 10, 2004, Cosme Camargo Jr., age 45 at the time, arrived in the emergency department of Palo Verde Hospital. He was with his mother, Esther Camargo. He had a severe swollen left arm. The emergency department physician, Dr. Kidd, immediately requested surgeon Dr. Thakur evaluate the patient. Dr. Thakur was, at that time, performing surgery in the hospital. Within several hours the patient was taken to surgery by Dr. Thakur for compartment syndrome. Prior to surgery, the patient had complaints of numbness and tingling in the hand. He also had severe pain. The symptoms were relieved following surgery.

On the following morning, it appeared the patient had improved dramatically. However, a repeat CBC reflected a remarkably elevated white blood count not consistent with stress
of surgery. Dr. Thakur was concerned with a possible infectious process. His diagnosis was
uncertain. Accordingly, he immediately instructed transfer coordinator Joyce White to locate a
hospital that could provide a higher level of care. Resources at Palo Verde Hospital are extremely limited. For example, there is no pathologist, no pathology department, no blood bank and consultants are limited. In particular, there is no infectious diseases consultant on staff. Efforts continued throughout the day to transfer the patient. Scripps Mercy Hospital in San Diego agreed to accept the patient. However, according to Dr. Thakur, there were no beds available.

Ultimately, it took approximately seven hours to locate a receiving hospital. Numerous facilities from Southern California, Las Vegas and Phoenix refused to accept the patient secondary to bed availability or no willing physician. During this time, Dr. Thakur wanted to take the patient back to surgery for debridement of the arm, concerned he might not be able to transfer the patient. However, the nurse anesthetist, James Couch, CNA, refused to assist with the case. Couch did not feel comfortable providing anesthesia for the patient. Couch did not believe he could intubate secondary to swelling in the neck area. Evidence at trial established that the anesthetist has the absolute right to refuse a case. The hospital had no anesthesiologist on staff. Couch was the only nurse anaesthetist within 90 miles of the hospital.

Ultimately, internist Dr. Vinh at JFK Memorial Hospital in Indio agreed to accept the patient. Dr. Vinh contends he accepted the transfer because Dr. Thakur failed to tell him that the patient had necrotizing fasciitis, a condition beyond JFK's capacity to treat. The patient's true condition was not known until arrival at JFK. The patient was then transferred to JFK at around 1800 hours on Aug. 11, 90 miles away. This is the nearest hospital to Palo Verde Hospital.

The patient arrived at JFK by ambulance within approximately 90 minutes of transfer. He was
evaluated in the emergency department by emergency department physician Donald Fink, M.D. Dr. Fink questioned the possibility of necrotizing fasciitis. He called Dr. Vinh. Dr. Fink indicated the hospital could not provide the care this patient needed and suggested transfer to another hospital. Dr. Vinh agreed. Efforts were then initiated to transfer the patient. However, a receiving hospital could not be immediately located. Accordingly, the patient was admitted to the floor pending transfer.

Upon arriving on the medical and surgical floor at JFK, nurses noted the patient was unstable. Accordingly, he was immediately transferred to the ICU. Dr. Vinh did not evaluate the patient until many hours later at around 0200 hours on Aug. 12. As of this time the patient had not been evaluated by a general surgeon. Dr. Vinh requested a consult with Dr. Cacdac, a general surgeon on staff. Dr. Cacdac advised Dr. Vinh he had discussed this case with Dr. Thakur earlier in the day on Aug. 11, and suggested the patient be transferred to a tertiary center in Riverside or San Diego. Dr. Cacdac refused to see the patient. Dr. Vinh then contacted an orthopedic surgeon on staff, Dr. McClennan. Dr. Vinh did not call any other general surgeon nor did he call the general surgeon on-call for the emergency department.

Dr. McClennen evaluated the patient shortly after Dr. Vinh. His impression was probable
necrotizing fasciitis. Dr. Vinh had formed the same diagnosis. Dr. McClennen wrote a progress note indicating JFK could not provide the care needed for the patient. At around the same time UCSD accepted the patient. At some point thereafter an ambulance crew arrived but refused to transfer the patient because their shift was ending. A second crew from American Medical Transport then arrived and transferred the patient at around 0530 hours.

Unfortunately, while in route to San Diego, the patient developed respiratory distress. The paramedic could not intubate the patient. Ventilation was achieved with an ambu bag. Of note, JFK's ICU nurse Minnis rode in the ambulance with the patient and provided critical care during the transport. The ambulance crew got lost on the way to San Diego and actually ended up at Scripps near UCSD.

The patient was intubated and stabilized at Scripps. Within approximately four hours, the patient was taken to surgery by Dennis Mayer, M.D.. He debrided the left arm, removing much of the skin and subcutaneous tissue. His impression was necrotizing fasciitis. The patient did not do well. He was taken to surgery again on the morning of Aug. 13, 2004 for further debridement. The patient died during surgery.

Dr. Mayer testified that, had surgery been performed on the patient any time prior to arrival in San Diego, the patient would have survived the necrotizing fasciitis.

Plaintiffs asserted causes of action for actual fraud, constructive fraud, intentional infliction of emotional distress, willful misconduct, violation of the California Dependent Adult and Elder Abuse Act and negligence.

PLAINTIFFS' CONTENTIONS:
As to Brim/Province, plaintiffs alleged that, after Dr. Thakur ordered transfer of the patient, Scripps in San Diego almost immediately accepted the patient. Palo Verde Hospital transfer coordinator Joyce White testified that there was a standby surgical team at Scripps and that transport was arranged by helicopter. However, she testified the transfer was canceled by the hospital CEO, David Conejo. Plaintiffs alleged this was done to save money the hospital would have had to pay for the transfer as the patient was insured by MediCal.

Plaintiffs also asserted that Dr. Thakur could have returned the patient to surgery and operated under local anesthetics and that with earlier debridement of the necrotizing fasciitis the patient would not have deteriorated further. Plaintiffs further alleged that Dr. Thakur then duped Dr. Vinh at JFK into accepting the patient by concealing the diagnosis of necrotizing fasciitis. Dr. Vinh testified he would have never accepted the patient had he known of the diagnosis in that JFK does not have the resources to provide care for such a patient. This was confirmed by surgeon Dr. Cacdac who testified Dr. Thakur called him earlier in the day. Dr. Cacdac testified he told Dr. Thakur JFK did not have the resources to provide care for a patient like this and JFK was not the appropriate facility for transfer. Plaintiffs alleged Dr. Thakur was an agent of Brim/Palo Verde Hospital and that his wrongful conduct was imputed to the hospital.

As to Tenet/JFK, plaintiffs alleged the hospital had the resources to provide the care the patient needed. In particular, the hospital has complete surgical services, a pathology department, general surgeons with experience operating on patients with necrotizing fasciitis and could also provided appropriate infectious diseases services. Plaintiffs asserted JFK essentially dumped the patient on San Diego.

DEFENDANT'S CONTENTIONS:
The former CEO, David Conejo, testified that he did not cancel transfer of the patient to San Diego and that the hospital would have had no liability for a helicopter transfer in any event. As such, he had no motive to cancel an air transport to San Diego.

The defense also asserted the testimony of the transfer coordinator was not believable as she was hostile to former owners of the hospital. The defense also disputed the testimony of Dr. Vinh in noting that the diagnosis of necrotizing fasciitis was written on every transfer document and that Dr. Vinh had developed his concealment story when he was deposed as a defendant in the case.

The defense also contended Dr. Thakur was not an agent of the hospital. The decedent's mother signed consent forms acknowledging Dr. Thakur was an independent contractor. The mother testified she understood the difference between independent contractors and employees, having retained both in the course of running her family propane business.

Palo Verde also asserted that, the patient would not have survived at Palo Verde Hospital as it had done all that could be done with its limited medical resources. It was further asserted that the patient could not have been returned to the operating room for surgical debridement performed under local anesthesia. One expert testified such surgery would have been inhumane.

Finally, the defense asserted the decedent's problems began after skin popping with methamphetamine, and that death was the result of giant foreign body cell reaction to a contaminant in the drugs. Testimony at trial established methamphetamine in the blood at death. There were numerous scars on the arms consistent with a history of skin popping. Plaintiffs denied the decedent had used drugs in the last 10 years of his life and that he had developed necrotizing fasciitis after being bit by a spider.

Tenet/JFK asserted it did not have the resources to provide care for a patient with necrotizing fasciitis and that the patient was essentially dumped on the hospital by Brim/Province. Dr. Thakur misrepresented the patient's condition to Dr. Vinh in order to transfer patient to JFK. The patient's true condition was not known until arrival.

Settlement Discussions

Plaintiffs demanded $17 million. Brim Healthcare made no offer. Tenet Healthcare and JFK Memorial Hospital offered $400,000. Defendant Thakur settled for $475,000. Defendant Vinh settled for $29,999.

Damages

Counsel for the plaintiffs requested $800,000 in economic damages, and an unspecified amount in non-economic damages. Plaintiffs also sought punitive damages and attorney fees. Counsel for defendants requested a defense verdict, but if liability were to be found, suggested an award of approximately $100,000 in economic damages, and an unspecified amount in non-economic damages.

Result

Total Award of $6,539,069 ($6,141,000 non-economic damages; $398,069 economic damages). Tenet was dismissed prior to trial. Against Brim/Province only: Elizabeth Webb: $460,000 in non-economic damages for emotional distress. Stella Camargo: $460,000 in non-economic damages for emotional distress. Esther Camargo: $460,000 in non-economic damages for emotional distress. Cosme Camargo Sr.: $460,000 in non-economic damages for emotional distress. Joint and several against all defendants: $4,301,000 in non-economic damages for loss of society and comfort and $398,069 in economic damages for loss of support for the remaining parties. Judgment notwithstanding the verdict was granted on behalf of Brim Healthcare and Province Healthcare. Costs were awarded against the plaintiffs, as to Brim and Province only. Partial judgment was entered against JFK Memorial Hospital.

Other Information

The jury found in favor of Brim/Province on issues of negligence, misrepresentation, patient dumping, constructive fraud and dependent adult neglect and patient dumping. The jury then found Dr. Thakur was an agent of the hospital. They found Dr. Thakur intentionally failed to disclose an important fact to Dr. Vinh and that Dr. Thakur intended to deceive Dr. Vinh. The jury also found the concealment was a substantial factor in causing harm to plaintiffs. The jury found JFK committed medical negligence and engaged in willful misconduct. The jury found in JFK's favor for dependent adult neglect and fraud. Dr. Thakur was found to be 10 percent negligent and an ostensible agent of Brim/Province. There was no apportionment against Brim/Province on the causes of actions against it. The jury apportioned 20 percent to American Medical Response, dismissed before trial. The remainder was apportioned to agents and employees of JFK Memorial Hospital. The court entered judgment against JFK Memorial and Brim/Province. JFK Memorial Hospital has filed a notice of appeal from the judgment. Brim/Province filed a motion for judgment notwithstanding the verdict and, alternatively, for a new trial. Dr. Thakur, a surgeon, was found to have concealed information. The jury found Dr. Thakur was an ostensible agent of Brim/Province. The defense argued in post-trial motions that, there was no substantial evidence to support a finding that Dr. Thakur was an actual or ostensible agent. The defense also argued that there was no finding of a duty to disclose. The court granted Brim/Province's motion for JNOV (and alternatively, for new trial). Plaintiffs will appeal the grant of JNOV on behalf of Brim/Province and the judgment entered in favor of Brim/Province. MEDIATOR: Wayne Peterson.

Length

33 days