Stephen White v. Bradley Hotchner, Kaiser Foundation Hospital, Southern Permanente Medical Group
Published: Sep. 21, 2004 | Result Date: Apr. 21, 2004 | Filing Date: Jan. 1, 1900 |Case number: DUM0002852 Arbitration – $807,982
Judge
Court
Case Not Filed
Attorneys
Plaintiff
George M. Rosenberg
(ADR Services, Inc.)
Defendant
Experts
Plaintiff
Robert C. Klapper M.D.
(medical)
Peter Formuzis Ph.D.
(technical)
Defendant
Shahram Sheybany
(technical)
Michael S. Adams
(technical)
Stewart L. Shanfield
(medical)
Facts
Plaintiff Stephen White, 54, was born with congenital hip dysplasia (malformation of the hip joint) and had surgery to both hips as a child at age seven. In 1999, he complained of increased pain in both hips, particularly the left hip. He found it difficult to perform his work at IBM as a service technician since he had to go up and down stairs, carrying equipment and do bending and stooping to perform his job. On April 18, 2000, he had a total hip replacement for his left hip. The surgery was performed by the defendant, Bradley Hotchner at the Kaiser Hospital in Riverside. The plaintiff went for physical therapy and was followed by Dr. Hotchner. On Jan. 29, 2001, the plaintiff was experiencing severe pain in the upper left thigh area and went to the emergency facility at Kaiser and was sent home with pain medication. The plaintiff returned two days later with no relief and learned that an x-ray revealed that the implant had fractured. On Feb. 2, Dr. Hotchner performed a second surgery to removed the fractured stem and performed a second total hip replacement on the left hip. Following the second surgery, the plaintiff continued to complain of left thigh pain. The second surgery also caused a permanent injury to the sciatic nerve resulting in foot drop. On Oct. 3, 2003, an x-ray revealed that the stem implanted in the second surgery also failed and revealed a fracture in the distal stem of the device.
Settlement Discussions
The plaintiff settled with the manufacturer of the hip implant for $250,000. The plaintiff served Dr. Hotchner and Kaiser with a C.C.P. Section 998 offer to compromise in the sum of $349,000, 10 days prior to the commencement of the arbitration. No settlement offers were presented to the plaintiff.
Specials in Evidence
paid for by Kaiser $886,298 (without collateral source reduction) $50,000
Result
The judge agreed with the defendants that because of pre-existing back and right hip problems, the plaintiff would only be able to work an additional five years, not the 10 years alleged by the plaintiff. Although general damages were awarded in the amount of $1.5 million, these were reduced to $250,000 to comply with the MICRA statute. The plaintiff had requested a full non-economic award since it would affect the amount of the set-off from a prior settlement with the manufacturer. The court found that Proposition 51 did not apply and allocated no percentage of fault to the manufacturer of the implant. The following award was rendered: Past loss of earnings, $172,000; present value of future loss of earnings, $302,115; retirement and future medicals, $80,000; less off-set for SSD/Disability Insurance, $250,000; plus non-economic damages, $250,000 and C.CP. Section 998 costs. Total damages of $557,982.
Other Information
The plaintiff requested that the cost of future surgery be awarded even though it would be covered by Kaiser. The plaintiff argued he should not have to have Kaiser perform the third surgery and that he should be provided the opportunity to have the surgery performed by an orthopedic surgeon of his choice. Judge Alfano awarded $50,000 to the plaintiff for future medical costs.
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