Confidential
Settlement – $795,000Court
L.A. Superior Compton
Attorneys
Plaintiff
Mark Allen Kleiman
(Kleiman Rajaram)
Experts
Plaintiff
Charles Nieson
(medical)
Michael Worthen
(medical)
Henry Pribham
(technical)
Sara J. Guentz
(medical)
Rudolph L. Brutoco
(medical)
David J. Lang
(medical)
Michael J. Goldberg
(medical)
Peter Formuzis Ph.D.
(technical)
Facts
In December 1993, the plaintiff was 8 months old. He began running a low grade fever and picking at one ear. His mother thought the child was blinking in one eye. She took the baby to the defendant general practitioner who believed that the unilateral facial movements and unilateral movement to one eye were signs of an ear infection and he prescribed antibiotics. Two days later, the baby began having twitching on one side of his body, with a fever less than 102 degrees. While several of these episodes occurred, the mother took the baby to the defendant hospital outpatient clinic, where more episodes were observed and the baby was sent to the defendant hospital's emergency room. There, the diagnosis of seizures was made and health care providers blamed the seizures on fever though the temperature never exceeded 102 degrees and was less than this when the seizures were observed. A lumbar puncture showed an increase in lymphocytes. Consultations with infectious disease and pediatric neurology services were obtained. No EEG was done that night. No anti viral antibiotics were started. An EEG was done 24-36 hours into the hospital stay showed unilateral temporal lobe seizure activity. The baby was treated with anti seizure medication. The fever went away. The baby seemed quiet and the discharge note stated that the baby's physical examination was normal and that the baby had "febrile seizures" and would probably do well. At no time was acyclovir given to the baby, and no herpes encephalitis antibody titers or CSF analyses done. During the month after the discharge, the family noted that the baby no longer could feed himself, did not walk or say any words, and the baby's mental function seemed to have regressed. The baby was a twin, presumably very close to his brother in growth and development, but the two babies seemed very different. A month after discharge, the defendant family practitioner noted that the baby was no longer normal. After referral back to the defendant hospital, MRI and CT were done, which showed massive bilateral brain damage. Over the year and a half, the plaintiff's parents sought help from county and state organizations. During the second year following the incident, one of the county employees suggested the possibility of medical malpractice. Initial evaluation of such malpractice centered on the possible role of the general practitioner, since the discharge summary from the defendant hospital, a government entity, indicated that at the time of discharge, the baby was neurologically normal. The statute of limitations as applied to the general practitioner would not run prior to the baby's six birthday. After approximately two years, the county repeatedly refused the parent's request for records from the facility. The attorney for the parents became suspicious and filed a government claim and then a complaint naming both the county facilitator and the general practitioner. The county claimed that although the statute of limitations had not run out as to the general practitioner, it had run as to the county, even in the absence of actual or putative suspicion of county wrongdoing, because the statute of limitations relative to the county commenced to run when the parents first suspected the non-county employee, the general practitioner, to have caused negligent harm. The first trial was on the issue of the statute of limitations as regards the county facility. The court granted the plaintiff's new trial motion based both on an error of law, relating to the jury instruction on statute of limitation, and on insufficiency of the evidence to sustain the verdict even under the improper instruction. The county appealed and the court's granting of a new trial motion was affirmed as to insufficiency of evidence but it was held that the jury instructions were proper. The case was set for retrial as to the county, the general practitioner having settled in the interim.
Settlement Discussions
The defendant general practitioner settled for $295,000; the defendant hospital settled for $500,000 including waiver of future rights to a wrongful death lawsuit if the plaintiff dies from injuries related to negligence.
Injuries
Permanent and disabling brain damage.
Other Information
XXXXX practioner having settled in the interim.
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