Facts

On Jan. 23, 2009, plaintiff, age 47, presented at the emergency dept. of defendant hospital. She gave a history of having experienced a brief loss of consciousness at home. She had a complex medical history that included cardiac issues and, most recently, irritable bowel syndrome. Although a CT scan showed no abnormalities, routine laboratory were drawn that showed a very low potassium level of 2.7 (the range of normal is 3.5-5.0.) A previous visit to the emergency room on Jan. 14 had disclosed a nearly normal potassium level of 3.4. Low potassium is known as hypokalemia. Plaintiff contends that it is well known that one of the effects of such low potassium can be cardiac arrhythmia caused by insufficient electrical conductivity. Plaintiff alleged that the emergency room physician recognized the low potassium but took no steps whatsoever to remedy the deficiency.

The next day, plaintiff suffered a severe ventricular tachycardia and her heart stopped. Plaintiff was taken by paramedics to another hospital where her physicians concluded that her ventricular tachycardia had been the result of hypokalemia. She remained unconscious and on life support for six days. Her EEGs showed such poor response that it was recommended that she be removed from life support. Her husband consented and life support was removed. However, the next day plaintiff began to regain consciousness. In the days that followed, she became aware of her surroundings but had significant confusion and impaired cognition caused by anoxic encephalopathy.

On Feb. 10, she was transferred to a different hospital for acute rehabilitation. At the time of discharge on Feb. 23, she was diagnosed as suffering from impaired working/immediate memory, impaired short-term memory, impaired situational problem solving, impaired calculation-based problem solving (e.g., money, time, checkbook, etc.), and impaired deductive and inductive reasoning due to decreased ability to store information. Because of these deficiencies, when she was discharged, her physicians recommended 24-hour supervision.

The anoxic encephalopathy caused permanent brain damage. Plaintiff's memory of the previous five years had been wiped out. It also affected her short-term memory. She is unable to function independently. She does not cook or prepare food, manage money, or keep track of her medications. She has gotten lost when out for a walk in her neighborhood. Now, at age 49, her cognitive functioning is similar to mild Alzheimer's patients.

PLAINTIFF'S CONTENTIONS:
Plaintiff contended that the standard of care required that, before plaintiff left the hospital, she be given potassium; and that the low potassium was the cause of the arrhythmia that led to the heart attack and consequent brain damage.

DEFENDANT'S CONTENTIONS:
The emergency room physician contended that the potassium level was lower than normal but not such a severe deficiency that it required treatment at that time. Plaintiff had been advised to eat foods rich in potassium. Additionally, there was some evidence that plaintiff's potassium level had actually increased during the following day and the arrhythmia may have been caused by plaintiff's underlying cardiac problems.

The defense retained neuropsychologist concluded that plaintiff was not credible, that she fit the profile of a malingerer, and "her claims of memory dysfunction cannot be accepted as valid."

The hospital claimed that the emergency physician was an independent contractor and not a hospital employee, and plaintiff had signed an acknowledgment on hospital admission that she was aware of that status; therefore there was no vicarious liability.

Specials in Evidence

All of the medical bills were covered by insurance, but amounted to approximately $553,000.

Damages

Plaintiff's husband claimed loss of consortium. Future care costs (not reduced to present value) were estimated to be approximately $1.7 million.

Injuries

Brain damage resulting in impaired memory and inability to live independently.

Result

The case settled for $1,250,000 at a mediation before Harrison Sommer, Esq., of Judicate West ($1 million policy limits from the emergency Group, and $250,000 from the hospital).