Mayes v. David Lourie, David Bryan, John Carmody, Daniel Diamond, Hill Medical Corporation, Huntington Medical Hospital
Published: Dec. 9, 2003 | Result Date: Oct. 15, 2003 | Filing Date: Jan. 1, 1900 |Case number: GC027757 Verdict – $4,366,360
Judge
Court
L.A. Superior Pasadena
Attorneys
Plaintiff
Bruce G. Fagel
(Law Offices of Bruce G. Fagel & Associates)
Defendant
Raymond L. Blessey
(Reback, McAndrews & Blessey LLP)
Robert C. Reback
(Reback, McAndrews & Blessey LLP)
Experts
Plaintiff
Frederick A. Birnberg
(medical)
Frederick C. Phillips
(medical)
John Luce
(medical)
Peter Formuzis Ph.D.
(technical)
Defendant
William P. Klein
(Klein Law Group LLP)
(medical)
Ted Vavoulis
(technical)
David Winsor
(medical)
Facts
The plaintiff's decedent was 39 years old with morbid obesity of 375 pounds. She underwent an elective laparoscopic gastric bypass and cholecystectomy surgery on Dec. 11, 2002, at Huntington Memorial Hospital. The surgery was successful and the patient was scheduled to be discharged the next day. She was seen during the morning of Dec. 12 and was doing well. Later that day, she complained of nausea and vomiting and her discharge was cancelled. At 12.30 p.m. on Dec. 13, she suddenly complained of chest pain with a rapid heart rate and rapid breathing. A first year surgical resident was called and she then called Dr. Diamond, a second year surgical resident. Both residents thought that the patient had a pulmonary embolus. The surgeon, Dr. Lurie, was called at home at 1:45 a.m. and the clinical symptoms were discussed. He felt that the symptoms indicated an acute and massive pulmonary embolus. A ventilation-perfusion lung scan was ordered, since the patient's weight precluded an angiogram or CT scan, which are more specific for the diagnosis of a pulmonary embolus. Both residents went with the patient to the radiology department. The scan was then sent via tele-radiology to the defendant Dr. Bryan at his home. Dr. Bryan then called the resident who recorded in the medical record that Dr. Bryan read the scan as showing a high probability for pulmonary embolus. The surgeon was called at 3:45 a.m. with the results of the lung scan, and a pulmonary specialist, Dr. Carmody, was then consulted. He came to the hospital within 15 minutes and ordered TPA and Heparin treatment for a pulmonary embolus. Over the next several hours, the patient became hypotensive. At 6 a.m., Dr. Lourie saw the patient and agreed with the diagnosis of a pulmonary embolus. At 9 a.m., Dr. Wang, a nuclear medicine specialist in the Radiology Department, reviewed the scan and dictated a report that showed a low probability for a pulmonary embolus. However, Dr. Wang did not know that Dr. Bryan had told the surgeons about the scan six hours earlier. By noon, the patient's condition worsened with hypotension, a fever of 103 degrees and an elevated white blood cell count. At 2:20 p.m., Dr. Carmody reviewed the lung scan with Dr. Wang and was informed that it showed a low probability for a pulmonary embolus. The Heparin was then stopped and it was decided to take the patient back to surgery where a gastric leak was found at the site of the bypassed stomach with 2-3 litres of bilous fluid in the abdomen. The small bowel was also obstructed with an 800 cc blood clot. After surgery, the patient remained in critical condition. Over the next two months, the patient underwent 40 surgical procedures, including 13 open abdominal surgeries under general anesthesia to drain infected fluid from her abdomen. The patient developed multi-system organ failure and died on Feb. 12, 2001.
Settlement Discussions
A mediation was held in November 2002, before Vigo Bosserup, Esq. The plaintiff's demand was $1.2 million as to all defendants. Dr. Bryan made no offer and requested a dismissal for a waiver of costs. All other defendants settled during trial.
Damages
The wrongful death of a 39-year-old wife and mother of two children, age 7 and 9. The patient had a Masters Degree in Education and worked as a Program Specialist for the Antelope Valley School District. Loss of wages and household services: $205,981 per the plaintiff and disputed by the defendant who calculated this at $86,506. Future loss of wages and household services: $1,160,376 per the plaintiff and $1,079,153 per the defendant.
Other Information
The case went to the jury only as to Dr. Bryan and the Hill Medical Corporation. The jury was instructed on a modification of the new causation instructions from the Judicial Council of California, including #431, which allowed the jury to consider multiple factors in causing the death, but was modified to state that the factor involving Dr. Bryan must be, more likely than not, a factor in causing the death. Prior to trial, the court denied the plaintiff's motion to exclude evidence regarding payments after death from the State Teacher's Retirement Fund, which is not specifically referred to in Civil Code section 333.1 as a collateral source that may be considered by the jury in a medical malpractice case. The jury also found the defendant Dr. Bryan 20 percent at fault for the death, and attributed 80 percent of the fault to others. A motion for mistrial was brought on instructional error on causation, which was denied. Appeal of the decision on instructional error will be filed.
Deliberation
two days
Poll
11-1 (negligence and causation), 12-0 (damages)
Length
18 days
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