Nichols v. Kaiser
Published: Sep. 8, 2004 | Result Date: Jun. 1, 2004 | Filing Date: Jan. 1, 1900 |Case number: DUM0002846 Arbitration – $1,100,000
Court
Case Not Filed
Attorneys
Plaintiff
John P. Blumberg
(Blumberg Law Corp.)
Defendant
Laura K. Sitar
(Wroten & Associates)
Experts
Plaintiff
Charles Ballard
(medical)
Rachelle Tyler
(medical)
Donna M. Barras
(medical)
David T. Fractor Ph.D.
(technical)
Defendant
William A. Frumovitz
(medical)
Paul Schultz
(medical)
Ted Vavoulis
(technical)
Facts
The plaintiff, age 36, decided to undergo a tubal ligation. On June 4, 2001, a nurse practitioner drew blood for a pregnancy test which was analyzed the next day, and showed that the plaintiff was pregnant. At this time, she was 10 weeks gestation. However, she was never notified of the result and the laboratory report was never placed in the chart. She testified she called for results but was told that the results were not ready. No record of those calls appeared in the medical record. She assumed that the test was negative when she did not hear to the contrary. On June 27, 2001, the plaintiff was seen by Dr. Karen Maples for a pre-op evaluation. Dr. Maples ordered a urine pregnancy test. The plaintiff testified she gave a urine sample to the nurses, however, the test was never performed. At this point, the plaintiff was approximately 13 weeks gestation. On the day of the tubal ligation surgery, a copy of the June 4, 2001 pregnancy test was printed and put it in the chart. Dr. Maples testified that her custom and practice was not to review the chart immediately before performing surgery, but to rely on the nursing staff to tell her if the pregnancy test was positive. She said that the nurses neither told her that the urine test had not been performed nor that the previous labs had been positive for pregnancy. The plaintiff was given a general anesthetic and Dr. Maples began the laparoscopic procedure. She noted during surgery, that the uterus was enlarged but presumed it was a fibroid, since she believed that the pregnancy test had been negative. Dr. Maples told the plaintiff's husband that the operation went fine but that she found a fibroid uterus. A few weeks following surgery, the plaintiff became concerned because her uterus was continuing to enlarge. She telephoned Kaiser and left messages on July 26 and 27 for Dr. Maples indicating that her uterus was continuing to grow and requesting that she be seen before her scheduled post-operative appointment. The plaintiff was not examined by Dr. Maples until Aug. 17, and, at that visit, Dr. Maples performed an ultrasound and made the diagnosis of an intrauterine pregnancy of 20 plus weeks gestation. She checked with the laboratory and learned for the first time that the urine pregnancy test had never been performed and verified that the result of the test she had ordered was not in the computer system. The plaintiff would not consider an abortion at that time as it was too late. The pregnancy was complicated by complete placenta previa. The plaintiff experienced three episodes of severe vaginal bleeding necessitating an emergency caesarian section on Oct. 13. Isaac was born severely premature at 28 weeks gestation, weighing one pound, nine ounces. For the next three months, he was hospitalized in the Kaiser Bellflower neonatal ICU until Jan. 12, 2002. He suffered multiple complications associated with his extreme prematurity including respiratory distress syndrome, anemia, sepsis, apnea, bradycardia and gastroesophageal reflux. Shortly after his discharge, Isaac was admitted to the Kaiser Sunset facility for treatment of a severe episode of RSV pneumonia. He continued to have apneic episodes and was discharged on an apnea monitor which he required for approximately one year. He is now nearly three years old and has been diagnosed with global developmental delay since birth and has suffered from recurrent otitis media and profound speech delay. After the plaintiff recovered from emergency surgery, she spent nearly everyday at the hospital with her premature son while, at the same time, continuing to care for her other six children and her infirm mother. Because of the complications from her pregnancy with Isaac and his constant care needs, plaintiff has never been able to return to her full time job.
Settlement Discussions
The plaintiff demanded $500,000; there was no offer.
Specials in Evidence
$50,000
Damages
The cost of raising a child with developmental delays (i.e. social, educational and medical services) to age 18 ($900,000 present value).
Injuries
Birth of a child with developmental delays.
Result
Kaiser Foundation Hospital, but not Dr. Maples, was found liable. $150,000 for general damages and $50,000 for lost earnings; $900,000 for the cost of raising Isaac for a total of $1.1 million.
Other Information
The arbitrator, Harold Hunter Jr., neutral arbitrator, fashioned the award so that a trust would be established for the child's needs until age 18, after which any money remaining would be returned to the judgment debtor.
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