KAREN G. ANDRES, ARBITRATOR (State Bar No. 65057)

 

126 Oxford Road  Newton Centre, MA 02459[1]                      

Tel:   (617) 965-2847

Fax:  (617) 723-9811

Cell:  (310) 850-4940

                                                                  

N. CA Address                

20 Greenbank Ave.

Piedmont, CA 94611

 

S. CA Address

401 N. McCadden

Los Angeles, CA 90004

              

IN THE MATTER OF THE ARBITRATION

 

Of

 

                                       )                                                                                                                                 )

                                       ) BINDING ARBITRATION

     Claimants,                        )                                                                             )

                                        )       AWARD

     vs.                                )

                                        ) ARBITRATION NO. 9361

KAISER FOUNDATION HOSPITALS,           )

KAISER FOUNDATION HEALTH PLAN, INC.,   )

and THE PERMANENTE MEDICAL GROUP, INC.,)

                                  )                                              Respondents                    )                                                    

_______________________________________)

 

APPEARANCES

For the Claimants:         

For the Respondent:

 

Mr. William C. Callaham, Esq.

WILLCOXEN CALLAHAM, LLP

2114 K Street

Sacramento, CA 95816

Telephone:  (916) 442-2777

Facsimile:   (916) 442-4118

Mr. Robert M. Slattery, Esq.

MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER, LLP

1211 Newell Avenue

Walnut Creek, CA 94596

Telephone:  (925) 939-5330

Facsimile:   (925) 939-0203

 

 

     

For the Respondent:

Mr. Robert M. Slattery, Esq.

MCNAMARA, NEY, BEATTY, SLATTERY, BORGES & AMBACHER, LLP

1211 Newell Avenue

Walnut Creek, CA 94596

Telephone:  (925) 939-5330

Facsimile:   (925)  939-0203

 

 

I.     

 

INTRODUCTION

 

 

 

This is a medical malpractice binding arbitration between Claimants, ----------, and Respondents, Kaiser Foundation Hospitals, Kaiser Foundation Health Plan, Inc., and The Permanente Medical Group, Inc.  The arbitration hearing took place on November 7, 8, 9, 10, 11, and 15, 2011, at the offices of Wilcoxen & Callaham in Sacramento, California, before the duly selected Arbitrator Karen G. Andres (the “Arbitrator”). 

On April 10, 2008, surgeon Dr. xxxxxx, assisted by resident Dr.-xxxxx, attempted a laparoscopic cholecystectomy - laparoscopic surgical removal of Mr.----’s gall bladder - at Kaiser South Sacramento.  During the surgery (the “Initial Surgery”), the laparoscopic cholecystectomy was converted to an open cholecystectomy.   In recovery, Mr. xxxxxx developed symptoms that necessitated a second surgery on April 12, 2008. 

After the second surgery, Mr. xxxxx suffered serious complications.  He was transferred to U.C. Davis (“UCD”) where he was hospitalized from April 14, to June 24, 2008.  He was transferred back to Kaiser South Sacramento, where he was hospitalized until August 18, 2008.

Claimants allege that, during the Initial Surgery, Dr. xxxxx and Dr. xxxxx negligently failed to discover and repair a tear in the bowel and that this led to the ensuing complications.

II.     

WITNESSES, EXHIBITS AND DEPOSTIONS

The following witnesses were sworn and testified:

Dr. xxxxx, General Surgeon.

Dr. xxxxx, Surgical Resident.

Dr. xxxxxx, Expert for Claimant.

Dr. xxxxx, Expert for Respondent.

Dr. xxxxx, Kaiser Surgeon.

xxxxx, Ph.D, Economic Consultant.

xxxxx, Ph.D, Clinical Neuropsychology.

xxxxx, Financial and Statistical Economist.

xxxxx, Certified Rehabilitation Counselor.

 

A significant number of exhibits were also received into evidence, many of which were relied upon in reaching this decision.  Portions of depositions were read into the record.

III.

FINDINGS OF FACT

Mr. xxxxx was born on November 4, 1968.  He is married to xxxxx, and they have four daughters between the ages of seven and sixteen.

         In 1990, Mr. xxxxx suffered a gunshot wound to the bladder, and he underwent surgery. Some of the bullet fragments could not be removed.   After several emergency room admissions with pain and vomiting in 2008, Mr. xxxxxx elected to have the Initial Surgery in order to remove gallstones and repair a ventral hernia which Dr. xxxxx postulated resulted from the gunshot wound.

      Prior to surgery, Dr. xxxxx administered the appropriate tests and held discussions with Mr. xxxxx regarding the possibility of having to convert to an open procedure.  

During the course of the laparoscopic cholecystectomy, the doctors encountered heavy adhesions which obscured the vision of the right upper quadrant.  Therefore, they were forced to convert to an open cholecystectomy.  They removed the gallstones and repaired the hernia.  Prior to closing, the doctors inspected the surgical field and checked for any surgical defects.  They irrigated the area twice.  They did not observe any injury to the abdomen or abdominal contents.

Drs. xxxxx (who was the surgeon on call) and the nursing staff carefully monitored Mr. xxxxx following the surgery. 

The day following the surgery, Mr. xxxxx developed tachycardia, epigastric pain and hiccups, and his hermatocrit dropped from a normal 44 prior to surgery to 24.    Dr.  xxxxx examined the patient at 4:45 p.m. and 6:42 p.m. on April 11.  Dr.  xxxxx performed a series of tests and advised the patient and the family that the safest course would be to return to surgery.  Dr.  xxxxx called the patient from home that night and strongly recommended that he have surgery to discover why his hermatocrit was down and his heart rate was elevated.  Notwithstanding the recommendations of Drs.  xxxxx and  xxxxx, Mr. xxxxx refused to have additional surgery at that time.

Dr.  xxxxx saw Mr. xxxxx at 12:55 a.m. on April 12.  At 4:00 a.m., Dr.  xxxxx was called to Mr. xxxxx’s bedside.  The patient was in more pain, his breathing was shallower than before, and his abdomen was distended.  Dr.  xxxxx explained the necessity for a second surgery to investigate internally why Mr. xxxxx was experiencing his symptoms. This time, Mr. xxxxx agreed to undergo further surgery. 

At this point during the night, other surgical cases had come in, and Dr.  xxxxx and Dr.  xxxxx were operating non-stop.   Mr. xxxxx’s case was deemed urgent but not an emergency.  There is no allegation that Kaiser should have transferred him to another hospital.

On April 12, at approximately 9:45 a.m., Mr. xxxxx returned to surgery (the “Second Surgery”).  He vomited and aspirated gastric contents and became hypoxic and apneic. He was intubated, and a laryngoscopy was performed.   

During the Second Surgery, Dr.  xxxxx discovered a two-millimeter hole in the small bowel.  This defect was due to an injury that occurred during the Initial Surgery.   The solution was to resect the bowel. 

An injury occurred during the Second Surgery, as the doctors attempted to free up bowel adhesions.  They recognized and corrected that injury.

Mr. xxxxx became increasingly ill in recovery.  Dr.  xxxxx pressured UCD and UC San Francisco to take Mr. xxxxx as he was sicker than the other patients in line for an ICU bed.  He was transferred to UCD for advanced respiratory care and critical care management.  Dr.  xxxxx accompanied him in the ambulance.

At UCD, Mr. xxxxx developed bilateral deep vein thrombosis (DVT) and he went into cardiac arrest.  A CT scan showed that he had a large area of hemorrhage.   He underwent cardiopulmonary resuscitation, and underwent a tracheostomy.  He was transferred back to Kaiser on June 24 and discharged on August 19.  He underwent two abdominal surgeries subsequent to April 12, 2008.

Mr. xxxxx continues to experience pain, and he suffers from depression.  His abdomen bears extensive scarring and bulges which cause him embarrassment.  Mrs. xxxxx and the family suffer from the loss of their husband’s and father’s full participation in their lives.

Dr.  xxxxx testified for Claimant, and Dr.  xxxxx testified for Respondent.  Both experts agreed that an injury to the bowel or to the adjoining organs is a known risk of gall bladder surgery.  They differed in their opinions of whether the failure to discover and repair the injury was a violation of the standard of care in this case.  Dr.  xxxxx believed that there was a violation of the standard of care, and Dr.  xxxxx was of the opinion that there was no such violation.

Dr.  xxxxx is a capable and experienced abdominal surgeon.  He does not teach or publish.  His background does not compare to that of Dr.  xxxxx.

Dr.  xxxxx completed a two-year fellowship in gastroenterology.   He specializes in cholecystectomy and hernia repairs and has operated on hundreds, possibly thousands of patients.  In addition to his practice, he serves on peer review boards and has faculty appointments at major universities.  He publishes on the subject of cholecystectomy.

Dr.  xxxxx advanced plausible, detailed explanations as to why the injury to the bowel could have occurred and why it might not have been visible despite the best efforts of competent surgeons.  For instance, a very small hole in a piece of intestine that is stuck to the underside of the abdominal wall remote from where the surgery was being performed could have occurred during traction or dissection.   Dr.  xxxxx and Dr.  xxxxx used methods to minimize inadvertent injury (e.g. Hasson Technique) and to recognize injury (repeated irrigation).

During the 40-hour interval between the closing of the Initial Surgery and the Second Surgery, a hole that might have been a pinpoint in size could have enlarged to become two or three millimeters in size.  The intestinal contents (“succus”) could have leaked and caused destruction of tissue around the hole.  This is apparently what happened in this case.  During the Second Surgery, the clot and the bilious secretions in the area led the surgeons to the defect which, while still very tiny, was then large enough to be seen.

Every patient has a different response to the leakage of bacteria.  Mr. xxxxx became septic and experienced respiratory distress.  When he initially declined a second surgery, the problems escalated.

Several experts testified regarding Mr. xxxxx’s present physical and emotional condition and how they impact on the quality of his life of and the life of his family.  Additionally, experts testified regarding the economic impact of Mr. xxxxx’s medical condition.

IV.

OPINION

Both attorneys in this matter have extensive experience and are of the highest caliber.  The case is before the Arbitrator because there are plausible arguments to be made on both sides of the question of whether Respondents’ medical treatment fell below the standard of care.  Claimants have the burden of proving that Respondents were negligent and that such negligence was the cause of harm or damage to Claimants.

We all know that surgery is inherently dangerous, and this is why we sign consent forms.  A medical practitioner is not necessarily negligent just because his or her efforts are unsuccessful, or because he or she makes an error that was reasonable under the circumstances. A practitioner is negligent only if she or he is not as skilled, knowledgeable or careful as other reasonable practitioners would have been in the same or similar circumstances.  We cannot expect or demand perfect results.  All that we can demand is that medical practitioners who are providing care do so diligently and within the standard of care that has been established in the medical community for treatment of the relevant condition. 

Competent experts testified on both sides.  After carefully considering all the evidence put forth in this matter and weighing the relative testimony of the experts, the Arbitrator believes the more convincing evidence was the expert testimony offered by Respondents.   

Dr.  xxxxx and Dr.  xxxxx are caring and careful doctors who did as much as a diligent, prudent, competent medical practitioner could to perform a successful surgery on April 10, 2008.  They took all reasonable measures to examine for defects following the surgery.  They and the hospital staff monitored Mr. xxxxx after surgery. 

The medical care and treatment rendered to Mr. xxxxx was within the appropriate standard of care, and Respondents were not negligent in their care and treatment.  In light of the Arbitrator’s finding regarding liability, it is not necessary to address the issue of damages.

Mr. and Mrs. xxxxx are fine people, and they have suffered grievously from Mr. xxxxx’s medical condition.  I sincerely hope that Mr. xxxxx improves physically and emotionally and that he is able to resume a normal life and work to support his family. 

 

V. 

AWARD

The Arbitrator finds in favor of Respondents and against Claimants.

Nothing in this Arbitration Decision prohibits or restricts the enrollee from discussing or reporting the underlying facts, results, terms and conditions of this decision to the California Department of Managed Care.

 

 

_____________________________                                   Dated:  December 28, 2011     KAREN G. ANDRES, ARBITRATOR

 



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