Facts

On June 11, 2006, plaintiff Gabriela Martinez, 13, dove into a 3-5 foot swimming pool, striking her head and losing consciousness, while visiting with relatives at the defendant condominium complex. Although supervised by her adult sister-in-law, who was present in the pool area, she was discovered floating in the swimming pool for approximately two–three minutes unconscious until her brothers (ages 18 and 16) pulled her from the pool and began to administer CPR.

Although Gabriela was an experienced swimmer, having been a Junior Olympian, it was her first time to that swimming pool and the one and only dive she made on that day. Her family thought she was playing a joke ("playing dead").

Gabriela was brought into the emergency room at Hospital I, via the paramedics, in full C-spine precautions. The paramedics in route to Hospital I noted that she gradually became more awake when pulling into the driveway and that she was able to respond to the paramedic's questions, albeit inappropriately as implied by his description of her responses.

The emergency room physician found that the patient's neck was supple and non-tender and noted that the patient's neck is criteria for a clearing despite her confusion. It was noted that the patient was able to move all four extremities. During the neurological examination, the emergency room doctor noted that the patient was awake, able to answer some questions, but obviously confused and disoriented.
Due to her being combative, she was placed in restraints and intubated. A chest x-ray was obtained. No x-rays or CT scans of the head or neck were requested or obtained before removal of the cervical collar.

She was transported without a cervical collar from Hospital I to Hospital II by the transport team from Hospital II. At Hospital II, after she was extubated, and after x-rays and CT scans were obtained, the patient was diagnosed with a cervical fracture at C4-5 with neurological deficits. It was at Hospital II after extubation that she disclosed, in response to a question from the physician, that she dove into the swimming pool. The patient is now a quadriplegic.

PLAINTIFF'S CONTENTIONS:
As to the condominium complex, the plaintiff contended that the pool did not have adequate warning signs concerning diving, adequate depth markers or adequate water levels. The signage at the pool was insufficient to apprise a child (even an experienced swimmer) of the hazards and shallowness of the pool. The signage present was inadequate and not properly placed. Moreover, the pool had all of the trappings of a traditional pool (its dimensions), with a deep end and shallow end, yet it was only five feet at its deepest end. Gabriela was accustomed to diving into pools as a competitive swimmer, which were typically a minimum of 11 feet deep.

As to the emergency room physician, emergency group, and Hospital I, the plaintiff contended that when plaintiff arrived at Hospital I, she had full use of her extremities. She was combative and disoriented such that she had to be restrained per the doctor. The emergency room physician took her history, yet he never attempted to ask her how the accident happened. He relied on the paramedic report, which stated she was a suspected drowning patient. Although the emergency room physician was aware that plaintiff was a "suspected drowning victim" and was also aware that diving accidents and trauma result from swimming pool accidents, he failed to apply the nexus criteria (applicable standard) to clear a disoriented combative child's neck; he did not order or take any x-rays or CT scans of the head or cervical spine even though he ordered a chest x-ray; he opened and removed the patients collar to examine and to intubate the patient; he did not give her any anti-inflammatory medication for her cervical spine and he transferred a trauma patient to a non-trauma hospital without a collar. The plaintiff alleged that the emergency room physician's actions were below the standard of care. It was further alleged that the hospital was vicariously responsible for the physician's action based on agency.

As to Hospital II, the plaintiff alleged that it was negligent in accepting a trauma patient to it's hospital and that it failed to ensure that Hospital I properly cleared the patient for transfer.

DEFENDANT'S CONTENTIONS:
The condominium complex contended that the swimming pool area was clearly marked with adequate warning signs and depth markers. It also contended that Gabriela was an experienced swimmer, a Junior Olympian, and assumed the risk. It further contended that she was under the care and supervision of adults who had responsibility for her care.

The emergency room physician, emergency room group, and Hospital I contended that the actions of the emergency room physician were not below the standard of care. They contended that the cause of Gabriela's injuries was from her diving in the swimming pool and not the subsequent care of the emergency room physician.

In addition, Hospital I contended that the emergency room group and physician who cared for Gabriela were independent contractors. Therefore, Hospital I was not responsible for any of their alleged negligence.

Hospital II contended that it acted within the applicable standard of care in relying on the evaluation of the transferring emergency room physician from Hospital I, and that the cause of plaintiff's injuries was from her diving into the swimming pool.

Settlement Discussions

The plaintiff made a C.C.P. section 998 demand of $2 million (policy limits) against the condominium complex. The plaintiff also served a C.C.P. section 998 demand of $1 million each against the emergency physician and emergency room group. The plaintiff made a C.C.P. section 998 demand of $2.5 million against Hospital I, increased to $5 million. Hospital I made a C.C.P. section 998 offer of $250,000.

Injuries

The plaintiff's injuries consisted of a cervical fracture at L4-5 with resulting quadriplegia.

Result

Plaintiff settled with the parties for a total settlement of $3,897,000. Plaintiff settled with the condominium complex for $447,000, with the emergency physician and the emergency room group for $1.9 million, with Hospital I for $1.5 million, and with Hospital II for $50,000.

Other Information

Mediation took two sessions and was held before the Hon. William Sheffield at Judicate West. Settlement took place 30 days before trial. The summary judgment motion of the emergency room physician and Hospital I was denied. The condominium complex filed a Roe cross-complaint (with unnamed cross-defendants) but did not serve it.