Facts

Scott Thorpe, 41, sustained an industrial work-related injury to his right elbow in March 2006, while employed as the general manager of a restaurant. He was treated for several months in the industrial care clinic of the co-defendant Healthpointe Medical Group, without benefit. He was then referred to defendant Dr. Leslie Kim, an orthopedic surgeon.

The patient was diagnosed with lateral epicondylitis (i.e., tennis elbow) for which conservative treatment had been unvailing. Surgery was thus recommended and, while the authorization was pending in the workers' compensation forum, the patient was managed with narcotic pain medication in an effort to control his pain until surgery was approved and accomplished. Unbeknownst to Kim, the patient was also securing narcotic pain medication, in substantial amounts, from a multitude of other healthcare providers (each of whom was unaware that the patient was obtaining pain medication from other sources).

Surgery on the right elbow was accomplished in August 2006, following which the patient reported slow but good post-operative recovery with respect to the right elbow pain. However, as a result of having over-utilized the left upper-extremity because of the incapacitating injury to the right, he developed a similar condition in the left elbow. The causation of injury to the left elbow was contested in the workers' compensation arena, such that approval for the recommended surgery was not ultimately authorized until late February 2007.

In the interim, the patient continued to report significant pain in the left elbow, which complaints were also managed with regular and allegedly increasing prescriptions of narcotic/opiate pain medication.

By January 2007, the patient, who had a previous problems with drugs, reported to his wife that he felt he was addicted to the pain medications, as he could not get off of them, and asked that she accompany him to Kim's office to explain his problem and request he be referred to either a pain management specialist or a drug rehabilitation program. The patient's wife and father-in-law both accompanied him to Kim's office on Jan. 5, 2007, where Kim was purportedly told that the patient was addicted and that he did not want to receive any more narcotics and asked he be referred to a rehabilitation facility. Kim acknowledged the patient's wife attended the visit and documented in the chart that at the patient's request he was not to receive any more narcotics, however, denied that they advised him that the patient was addicted and/or requested referral to a rehabilitation program. The patient, during this period of time, was continuing to get substantial narcotic pain medication from other healthcare providers, which he neither disclosed to Kim or his wife/family (nor did any of the other healthcare providers know of his maladaptive and drug-seeking behavior).

Two weeks later, the patient returned to Kim, advising that he could not tolerate the pain and was again requesting narcotic pain medication until surgery could be performed. At this time, the workers' compensation authority had just approved surgery for the left elbow and, accordingly, it was agreed that the patient would continue to be managed with narcotic pain medication until the surgery could be accomplished.

Surgery was subsequently delayed for several months, and finally scheduled on June 11, 2007. It went forward without complication. On the day of surgery, the patient was given a prescription for narcotic pain medication, which inclusive of the authorized refills, amounting to 120 pills. The patient was seen for his initial post-operative follow-up visit four days later, on June 15th, at which time as an accommodation to the patient he was dispensed out of the Healthpointe clinic dispensary 60 Hydrocodone (narcotic) pain pills, so that he would not have to stop at the pharmacy to refill the prescription previously given to him at the time of surgery.

On June 22, the patient returned to Kim's office, advising that he was separated from his wife and that his roommate had "stolen his medication." Kim advised the patient that this was a "red flag" and would accommodate him one time, such that he dispensed the patient an additional 60 Hydrocodone pain pills. Unbeknownst to Kim, the patient in fact proceeded to refill all three of the additional refills authorized under the prescription given at the time of surgery.

On June 25, 2007, the patient was found dead in his bathtub. An autopsy was performed, which included a toxicology analysis that demonstrated the patient had an abnormally high level of Hydrocodone in his blood, which was above the established and recognized minimum lethal level of that drug. The coroner, however, on autopsy determined that the evidence established the patient died a "natural" death, secondary to long-standing hypertensive cardiomyopathy.

The patient's wife and children filed suit against Healthpointe and Kim. Healthpointe entered into a pre-trial settlement with plaintiffs. The case proceeded to trial solely as against Kim.

PLAINTIFF'S CONTENTIONS:
Plaintiffs contended that Kim was negligent in failing to recognize red flags in the course of the physician-patient relationship, indicating his growing dependence and addiction to prescriptive pain medication, and in continuing to prescribe ever-increasing doses of narcotic pain medication instead of referring him to a pain management and/or drug rehabilitation facility. As a result, the patient continued to get increasing amounts of narcotics, especially during the last 30 days of his life, resulting in his inadvertent and accidental overdose and death.

DEFENDANT'S CONTENTIONS:
Defendant contended that there were no red flags in the entire year that the patient was being treated by Kim, with the exception of the last visit shortly before the patient's death. It was maintained that the patient had legitimate injuries, which were known to cause excruciating pain, and that the findings at surgery proved he was not faking the injury in order to secure pain medication.

It was further maintained that the patient was a very skilled and convincing liar concerning his drug use and there simply was no way for Kim to know the patient was abusing the prescriptive narcotic medication, nor was he aware of the magnitude of his use, as he was not aware the patient was getting drugs from other legitimate (healthcare providers) and illegitimate (street) sources.

Kim denied the patient and his wife advised him of the alleged addition in January 2007; rather, he maintained that the entire meeting was intended by the patient to "get his wife off his back" with respect to her concern of a potential dependence on the drugs (his insincerity being evidence by the fact that he was continuing to get drugs from other healthcare providers, in the same immediate time of his January 5 meeting) and simply wanted his wife to hear him tell Kim to write in the chart "no more narcotics."

Additionally, defendant contended that the patient, although having a potentially lethal level of Hydrocodone in his system at the time of his death, did not die of a drug overdose, as his chronic use of the medication had made him tolerant, and that his real cause of death was what the coroner determined (i.e., a natural death secondary to hypertensive cardiomyopathy).

Settlement Discussions

Plaintiffs demanded $1 million (policy limits). Defendant made no offer.

Damages

Plaintiffs sought economic damages in excess of $700,000 present value (loss of earnings and household services) and unspecified non-economic damages. Defendant maintained entitlement to defense verdict, hence no damages whatsoever, and failing that substantially reduced economic damages based upon compromised life expectancy (decedent was a hypertensive and morbidly obese) of more than another five to 10 years.

Injuries

Death of husband and father of two minor children.

Result

The jury returned a verdict for the defense.

Other Information

INSURER: Norcal Mutual.

Deliberation

two hours

Poll

9-3 (defense)

Length

nine days