Facts

On Aug. 28, 2004, plaintiff Ysidro Oseguera, a 56-year-old free-lance construction worker, fell two feet from a ladder, fracturing his knee. A physician at Kaiser Walnut Creek emergency room failed to diagnose plaintiff's knee fracture despite the radiologist's identification of a lateral femoral condyle fracture on the x-ray.

The claimant was diagnosed with a fracture on Aug. 31, 2004 and casted. The cast was removed two days later and claimant was given a brace. The diagnosis of a fracture was made again on Sept. 14, 2004 after a CT scan, which showed a comminuted fracture on the joint line. The fracture was treated with a brace, rather than surgery. As a result, plaintiff suffered from a valgus deformity, causing him to be knock-kneed.

The plaintiff sued defendant Kaiser Permanente Medical Group in arbitration for negligence.

PLAINTIFF'S CONTENTIONS:
The plaintiff contended defendant negligently failed to diagnose and treat his knee fracture. This caused the malunion of plaintiff's lateral femoral condyle fracture, resulting in plaintiff's valgus deformity.

Plaintiff's expert testified defendant's treatment of plaintiff's fracture with a cast violated the standard of care, which required an open reduction internal fixation within three weeks of the fracture. The plaintiff would then have been able to recover and return to work following the operation.

DEFENDANT'S CONTENTIONS:
The defendant contended the delay in diagnosis did not violate the standard of care, which only required conservative treatment for a non-displaced fracture. The defense expert testified defendant met the standard of care by treating plaintiff with a cast and follow-up x-rays. Surgery would not have helped plaintiff, who had a pre-existing arthritis condition. The plaintiff's arthritis was the actual cause of the valgus deformity, not defendant's alleged negligence.

Injuries

The plaintiff suffered from a valgus deformity, requiring knee replacement and preventing plaintiff from returning to work.

Result

Arbitrator Robert Murray found for plaintiff, awarding him $567,048. $114,251 of damages awarded was for the costs of knee replacement surgery. By the time of the arbitration, the claimant had exhausted his COBRA benefits and had no medical insurance, although he was eligible for Medi-Care. The Neutral rejected the respondents' argument that the cost of future surgery would be covered by Medi-Care or private insurance through employment.