Confidential
Settlement – $400,000Judge
Court
USDC Southern District of California
Attorneys
Plaintiff
Robert F. Vaage
(Law Offices of Robert F. Vaage)
Defendant
Joseph T. Kutyla
(Joseph T. Kutyla, Esq.)
Experts
Plaintiff
Paul M. Goldfarb
(medical)
Thomas C. Bruff
(medical)
Fred R. McFarlane
(technical)
Robert H. Wallace
(technical)
David Priver
(medical)
Danny Keiller
(medical)
Marcus Contardo
(medical)
Defendant
Carol Salem-Hand
(medical)
Charles Davis
(medical)
Philip E. Young
(medical)
Roy L. Herndon
(medical)
Laura Fuchs Dolan
(technical)
Facts
According to the Plaintiff: In November 1998, Vennessa Garcia, 20, began receiving care at the Naval Medical Center in San Diego for urinary tract problems. She had abdominal pain, flank pain and blood in her urine. Over the next 15 months, Garcia was seen by various employees of the defendants United States of America and Spectrum Healthcare Resources. The primary care physicians included defendants Gerald Klauck, Boyle Park and Mark Stevenson. Garcia had increasing amounts of blood in the urine, and she was diagnosed as having kidney stones and urinary tract infections. In December 1999, Garcia was told she was 13 weeks pregnant. She continued to complain of abdominal pain with dysuria and increased urinary frequency. Urinalysis showed a large amount of blood in the urine, but no additional tests were performed. In February 2000, Garcia had a urology consult. A CT scan showed a renal tumor with evidence of metastatic spread. A biopsy was attempted which was botched. She began to hemorrhage, causing her to go into labor. She gave birth to her second daughter Tiarah at 20 weeks. Tiarah was born alive, gasping for air and her heart rate was depressed. No resuscitation or suctioning efforts were made and no oxygen was given. Tiarah died 90 minutes after her birth. For 11 days, Garcia continued to hemorrhage. She underwent a decompression surgery of the abdominal compartment and large amounts of bloody fluid were evacuated. Garcia bled to death on Feb. 21, 2000. The pathology report revealed evidence of metastatic liver cancer. Vennessa's husband, Juan Garcia, and her 6-year-old daughter sued all defendants for medical malpractice. According to the Defendant: In November 1998, Vennessa Garcia, 20, received treatment in the Emergency Department at Naval Medical Center San Diego for a kidney infection. Periodically over the next 14 months, Garcia returned to the Emergency Department with symptoms of urinary tract infections. She was also treated for these conditions in the Primary Care Clinic at the Naval Hospital by civilian independent contractor physicians who were not employees of the Navy. During these months, Garcia had microscopic blood in her urine (hematuria), most likely caused by infection or menstruation. Unknown to her physicians at that time, Garcia was also a carrier of the sickle cell trait, which is associated with kidney problems, including hematuria. Beginning in November 1999, Garcia, who was then pregnant, began complaining of seeing blood in her urine. She was admitted to the Naval Hospital in February 2000 by her OB providers. A CT scan showed a renal tumor of unknown type with metastases in her liver, lungs, adrenals and lymph nodes. A CT-guided liver biopsy was performed to obtain tissue for diagnosis. Subsequently, bleeding from the biopsy site, a well-known complication, occurred and led to the miscarriage of Garcia's 20-week, 285 gram, nonviable fetus. Although the fetus was technically "born alive," no resuscitation was performed due the fetus' extreme prematurity and inability to survived outside the womb. Abdominal decompression surgery was performed after Garcia's miscarriage, at which time it was noted that her liver was grossly enlarged and almost completely replaced by the cancer. Garcia's condition continued to deteriorate and she died 10 days later from progressive liver failure. It was discovered at autopsy that Garcia had renal medullary carcinoma, an extremely rare and aggressive cancer, with very limited survival in most cases, usually only weeks to months after diagnosis. It is found most often in young individuals of African-American descent who carry the sickle cell trait. Due to the poor condition of Garcia's liver, she probably had only a few weeks to live, and would have died in any event before carrying the pregnancy long enough for a safe delivery (minimum 30 weeks).
Damages
The plaintiffs, Garcia's husband and surviving minor child sought damages for the wrongful death of the 21-year-old mother and the nonviable fetus.
Injuries
PLAINTIFF CONTENTIONS: The plaintiffs contended that the decedent had blood in her urine for 14 months before her death. They argued that her continuing symptoms of bloody urine and flank/abdominal pain were key indicators of renal cancer. The plaintiffs alleged the decedent was seen by various physicians at defendants' medical facilities 12 times before she was finally admitted and tested to determine the cause of bleeding. They contended that defendants failed to diagnose the decedent's cancer each time they saw her over the 14 months. The plaintiffs alleged that the cancer in the kidney had spread to her lymph nodes, liver and lungs. By the time testing was done, CT scans confirmed that the decedent had about six months to live. The plaintiffs claimed that even though the decedent had widespread cancer with little chance that she would be eligible for any type of treatment to extend her life, defendants convinced her to agree to a precutaneous liver biopsy. Defendant physicians did this without fully informing the decedent of her existing prognosis, that there was little benefit to having the biopsy, and that it would make no difference to her prognosis if she decided to delay the biopsy until after delivering the baby. Regarding Tiarah, plaintiffs admitted that she was so premature that she had no possibility of survival. However, they alleged that with proper informed consent for the biopsy, the decedent would have chosen to not have the biopsy in order to carry Tiarah until viability. The plaintiffs also contended that during the biopsy, the decedent was given heparin, a drug known to cause bleeding. They alleged that this created a significantly increased risk of internal bleeding. The decedent was not informed of this. The plaintiffs asserted that defendant physicians were ostensible agents of the United States of America.
Result
The plaintiffs dismissed Spectrum Healthcare in exchange for a waiver of costs. They proceeded against the United States and three physicians. The action was settled for $400,000. The United States will pay $125,000 of which $100,000 will fund an annuity to Garcia's daughter to include an education fund and monthly payments with an expected payment of $883,632. The remaining $25,000 from the United States, as well as the additional $275,000 from defendants Klauck and Park, will be distributed to Juan Garcia. There was no contribution from defendant Stevenson.
Other Information
All defendants filed motions for summary judgment based on the loss of a chance doctrine, and that there was no cause of action for the wrongful death of a non-viable fetus in California. The motions were denied. The District Court found that California's wrongful death statute regarded the infant Tiarah as a "person," inasmuch as she was born alive, having been "seen, touched and heard" by her mother, pursuant to the reasoning in Justus v. Atchison (1977) 19 Cal.3d 564, 581.
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