A Publication from the Law Offices of Walkup, Melodia, Kelly & Schoenberger

WALKUP, MELODIA, KELLY & SCHOENBERGER

VOLUME XV, NUMBER 1 SPRING 2009

We are pleased to welcome Sara M. Peters asthe newest member of our team. A 2008graduate of Stanford Law School, Saraobtained her undergraduate degree, summacum laude, from the University of CaliforniaLos Angeles. While in law school, Sara was amember of the StanfordLaw School Mock TrialTeam, and was Articleseditor for the StanfordJournal of InternationalLaw. Sara also served asCo-Chair for Stanford’sInternational HumanRights Law Association.During law school, Sara obtained significantpractical experience clerking for nationally-respected litigation boutique Cotchett, Pitre& McCarthy, as well as for our firm.

A career in litigation is the culmina-tion of years of focused training not justin substantive law, but also in publicspeaking and writing. Sara has competedin college speech and debate, mock trial,and while at Stanford worked on a teamled by nationally known constitutionallaw scholar, Kathleen Sullivan, repre-senting civil rights litigants on appeal.

Her interests in consumer protectionand personal injury litigation were initial-ly piqued before law school when sheworked part-time for a community basedagency securing compensation for indi-viduals who had suffered physical, mentaland emotional harm.

We are pleased to have Sara join usand look forward to her growth anddevelopment in providing individualplaintiffs with the highest quality oflegal representation.

injection of Demerol for her headacheand Phenergan for nausea. The drugswere administered by IV push. ThePhenergan entered Diana Levine’sartery – either because the needle

penetratedan arterydirectly orb e c a u s ethe drugleaked intothe sur-roundingtissue, mix-ing witha r t e r i a lblood. Asa result,L e v i n edevelopedgangrene

and required amputation of her rightarm. A Vermont jury found that Wyethfailed to warn about the catastrophicrisks associated with IV administrationand awarded $7,400,000 to Levine.

Wyeth argued that federal law pre-empted Levine’s state law “failure-to-warn” claim because the FDA approvedthe Phenergan warning label in 1955.The Supreme Court rejected this preemp-tion argument. Justice John Paul Stevens,writing for a 6-3 majority, stated:“Wyeth suggests that the FDA, ratherthan the manufacturer, bears primaryresponsibility for drug labeling. Yet

The U.S. Supreme Court recently heldthat pharmaceutical companies cannotuse FDA approval of warning labels as ashield against common law tort liabili-ty. The high court’s decision in Wyeth v.Levine is a sig-nificant victoryfor patients. Ina rare instanceof agreementbetween vic-tims’ lawyersand physi-cians, theCa l i f o rn i aM e d i c a lAssociationcommented:“In order tobest servep a t i e n t s ,physicians must have complete andtruthful information about the risks andbenefits of the drugs they prescribe.This ruling protects patient safety andallows doctors to do their jobs.”

Wyeth Pharmaceuticals is the manu-facturer of Phenergan, an antihistamineused to treat nausea. The injectable formof Phenergan can be administered intra-venously. With a “push IV,” the drug isinjected directly into the patient’s vein.Because Phenergan is corrosive, if itenters a patient’s artery it can cause irre-versible gangrene.

In April 2007, a Vermont patientsuffering from migraines was given an

Supreme Court Sides WithPatients Against Preemption

Sara M. Peters

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Firm Welcomes New Associate

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In one of the largest arbitration awards everreturned against Kaiser, Paul Melodiaobtained a binding award of more than$2,000,000 on behalf of a 52-year-oldwoman who suffered a respiratory arrest twodays after undergoing abdominal surgery atKaiser in Walnut Creek. The arrest occurredshortly after an epidural catheter, used forpost-operative pain control, was replaced.Paul proved that the procedure resulted in a“high spinal block,” a rare and potentiallylife-threatening complication of epiduralanesthesia. Typically, the first signs of a highspinal block are a drop in blood pressure, aslowing of the heart rate, and difficulty inbreathing.

A “code blue” was called after thepatient stopped breathing and her bloodpressure was not detectable on monitors. Atleast ten minutes elapsed before resuscita-tion was begun. There was no crash cartavailable with code blue/emergency resusci-tation medications, or equipment to intu-bate the patient for emergency ventilation.Following resuscitation, Paul’s clientremained in a coma for more than threeweeks. She continued to be hospitalized foralmost three months.

Paul produced medical testimony thatKaiser failed to timely recognize the highspinal block and start appropriate resuscita-

tive treatment. Paul’s experts were criticalof the delay in administering Epinephrine(a drug used to revive blood pressure) andestablishing an airway for ventilation.Kaiser’s attorneys produced experts whotestified that Epinephrine would not havebeen effective until after intubation, andthat the standard of care did not requirethat the procedure be performed in theoperating room.

Because of residual cognitive andphysical limitations, our client requiresassistance with activities of daily living,and 24 hour per day supervision.

For more than 30 years, Walkuplawyers have represented KaiserFoundation Health Plan members inKaiser arbitrations. From obstetrics toneurosurgery, anesthesiology to emer-gency room care, our medical negligenceteam knows the Kaiser system as well asor better than any other California prac-titioners. For associate counsel currentlyhandling Kaiser cases who are seekingreferral, assistance or advice, please feelfree to contact Paul Melodia, MichaelKelly, Richard Schoenberger, DougSaeltzer, Doris Cheng or MelindaDerish, all of whom currently haveclaims pending on behalf of Kaisermembers.

Negligent Kaiser CareResults in $2 Million Dollar

Arbitration Award Roughly 20,000P l a y h o u s eDisney “HandyManny” toy toolsets have beenrecalled becausethe tools containeyes that can sep-arate, posing a choking hazard to youngchildren. Disney has received three reportsof children who have choked on thepieces. The “Handy Manny” set is a plas-tic, eight piece toy set that includes a toolbox, hammer, saw, pliers, wrench, tapemeasure and two screwdrivers. The toyswere sold at “The Disney Store” nation-wide from October 2007 through January2009.

Ninety-five thousand Majestic high-chairs made by Evenflo, Inc. have beenrecalled because they pose a hazard whenparts come loose and the seat backs falloff. Dozens of injuries, including closedhead injuries, have been reported. Thecompany has received more than 100,000reports of parts falling out. The high-chairs, made in China, were sold nation-wide at mass merchandizers includingToys ‘R Us, Babies ‘R Us, BurlingtonCoat Factory and ShopCo. They were alsosold on-line at Wal-Mart. Consumerswho own these chairs have been advised toimmediately stop using them and to con-tact Evenflo to receive a free repair kit.

Two thousand “Dash Buggy” strollersmade in China and imported by RegalLager of Georgia were also recalled inDecember because of the failure of theframe handle to latch, thereby presentinga fall hazard to small children.

On the automobile defect front,NHTSA has upgraded one investigationand opened another into possible defectsin Hyundai passenger vehicles. Roughly300,000 autos are involved. The initialengineering analysis was upgradedbecause of more than 9,000 complaintsof airbag malfunctions involving150,000 Elantras. The Office of DefectInvestigation has collected reports ofsystem failures resulting from liquidspills as well as wiring and loose connec-tions under the front seats.

Disney Children’s ToolSet Recall HighlightsCPSC Action

MEDICARE “NEVER EVENTS”– ARE THEYTHE EQUIVALENT OF MALPRACTICE?In our last issue of FOCUS we discussedthe 2008 legislation under which theCenter for Medicare and MedicaidServices (CMS) announced that it wouldno longer pay for treatment of certaincomplications. In the original pressrelease announcing the policy, CMS iden-tified some 28 complications as “reason-ably preventable.” After announcing thatit will no longer pay for treatment ofthese complications, the national media,patient groups, and patient advocacyblogs began to call the specified compli-cations “never events.”

The rationale for the new policy wasthat a refusal to pay for bad care and pre-ventable injury would cause providers tobe more careful. Doctor and hospital advo-cacy groups have suggested, however, thatContinued on page four

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nothing stopping Wyeth from unilater-ally strengthening its label in compli-ance with FDA regulations. “Wyethcould have gone back to the FDA at anytime and said, either based on experi-ence or just our rethinking of the datathat we have, we think the label oughtto be changed to say ‘Don’t use IVpush.’ Wyeth could have done that atany time, and it simply didn’t do it.”

The Wyeth decision is the last ofthree opinions recently issued by theSupreme Court on the issue of federalpreemption in product liability cases. InAltria Group, Inc. v. Good the Courtruled in favor of consumers’ rights topursue claims under state unfair tradelaws even though cigarette labeling isregulated by the Federal TradeCommission. In Riegel v. Medtronic, Inc.the Court ruled in favor of preemptionin FDA approved medical devices, butmade clear that preemption dependedon the particular federal statute at issue.

The decision comes on the heels of alegislative push by the Obama adminis-tration to begin unraveling all of thepreemption friendly executive ordersissued by former President George W.Bush. The National Association ofAttorneys General is urging the newadministration to make preemptionreversal a top issue. In a briefingreleased by the NAAG, it called on thePresident to resist federal preemption ofstate laws, particularly as they relate tomortgage foreclosures. The Associationobserved that “State Attorneys General

through many amendments to theFDCA and to FDA regulations, it hasremained a central premise of federaldrug regulation that the manufacturerbears responsibility for the content of its labelat all times.”

Because Congress did not provide anyfederal remedies in the FDA legislationfor consumers harmed by unsafe drugs,the Court concluded, “Evidently,[Congress] determined that widely avail-able state rights of action provided appro-priate relief for injured consumers.”

Wyeth’s lawyers argued that the FDAhad already considered the risks associat-ed with the IV push method of deliveringPhenergan and that defendant’s liabilityshould be foreclosed. But the trial recordshowed there was no risk benefit analysisgiven to the FDA about the IV push as ameans of administration.

The Court held that state tort reme-dies complement the FDA’s goal of con-sumer safety. With over 11,000 drugsin the marketplace, the FDA does nothave the resources to monitor each andevery label. It is therefore incumbentupon manufacturers to be complete indescribing known risks. Per JusticeStevens, state tort actions play animportant role in enforcing the manu-facturer’s responsibility to dispense ade-quate warnings by “uncover[ing]unknown drug hazards and provid[ing]incentives for drug manufacturers todisclose safety risks promptly.”

The Supreme Court found there was

Supreme Court Sides WithPatients Against Preemption

have traditionally resisted federal pre-emption of state laws, whether by con-gress, the courts or the executivebranch,” instead supporting “a morepure federalism whereby state govern-ments and the federal government eachretain and actively exercise the powersand functions of government at thesame time.”

The American Association for Justice(AAJ) has asked the Obama administra-tion to reverse Bush-era regulationswhich provided near blanket immunityto some businesses and industries.During the Bush years, at least sevenagencies issued more than 50 regulationswith language intended to preempt statetort claims, often in direct contraventionof congressional intent.

National non-profit consumer advo-cacy organization Public Justice has alsocalled upon the Obama administrationto “set a different course” than the Bushadministration in the preemption arena.In a letter sent to the incoming Officeof Management and Budget Director,Public Citizen requested that thePresident “make the health and safetyof American families the underlyinggoal of all federal regulations,” askingthat President Obama issue an execu-tive order “prohibiting the abusivepractice of inserting language in thepreambles of federal regulations for thepurpose of immunizing manufacturersfrom liability for injuries caused byfaulty products.”

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The Internal Revenue Service has once againreaffirmed that the exact language of a set-tlement agreement can dramatically influ-ence whether or not settlement proceeds aretaxable.

In Murphy v. IRS (D.C. Cir. 2007) 493F.3d 170, as well as Sanford v. Comm., T.C.Memo. 2008–158, the IRS made clearthat if a claimant receives something “onaccount of” personal physical injuries orphysical sickness (per IRC §104(a)(2)) the

Release Language Critical to Avoid Taxessettlement agreement must say the moneyis being paid on account of those verythings.

The character of amounts received asproceeds from a lawsuit or a settlementdepend upon the nature of the claims andthe actual basis for the recovery. Underthe “origin of the claim” doctrine, classifi-cation of amounts received in settlementand litigation is to be determined by thenature and basis of the action settled, and

the amounts received in compromise of aclaim must be considered as having thesame nature as the rights compromised.(Alexander v. IRS, 72 F.3d 938 (1st Cir.1995).) The critical inquiry is why werethe damages awarded? (See RaytheonProduction Corp. v. Commissioner, 144 F.2d110, 113 (1st Cir. 1944).)

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Ever since the United StatesSupreme Court decided ArkansasDepartment of Health and HumanServices v. Ahlborn (2006) 547 U.S.268, California courts have beenuncertain about how to apply the new rulesfor Medi-Cal reimbursement. In Ahlborn,the Supreme Court held that any lien forreimbursement by the Federal Medicaidprogram (which partially funds Medi-Cal)could only be asserted on that portion of ajudgment or settlement reflecting medicalexpenses. Where medical expenses are notidentified or segregated in the settlement orjudgment, the parties must determinewhich portion of the settlement representsmedical expenses.

After Ahlborn, the California Medi-Calreimbursement formula in Welfare &Institutions Code §14124.76 was changed.The statute now provides that Medi-Calliens can only be satisfied out of that portionof any settlement or judgment representingmedical expenses.

The new statute provides that “recoveryof the director’s lien is limited to that portionof a settlement, judgment or award that rep-resents payments for medical expenses, ormedical care…all reasonable efforts shall bemade to obtain the director’s advance agree-ment to a determination as to what portion ofa settlement, judgment, or award representspayment for medical expenses or medicalcare…. Absent the director’s agreement as towhat portion of a settlement, judgment oraward represents payment for medical

expenses, the matter shall be submitted to acourt for a decision.”

In Bolanos v. Superior Court (2008) 169Cal.App.4th 744, the Second District dis-cussed the Ahlborn rule for the third timein just six months. In Bolanos, a medicalmalpractice case was settled in the totalamount of $1,500,000. Medi-Cal hadexpended $746,000 on behalf of the plain-tiff and refused to agree to a reduction inits lien amount. In the settlement betweenplaintiff and the medical malpracticedefendant, no distribution was made as towhat portion of the $1,500,000 represent-ed payment for medical expenses. Theplaintiff sought an order from the SuperiorCourt reducing the amount of the Medi-Cal lien, arguing that the portion of the$1,500,000 settlement reflecting medicalbills should be calculated using the ratiobetween the actual medical bills($746,000) and the “full value,” or “totalvalue” of the plaintiff’s case ($11,000,000).Medi-Cal refused to agree to using thismethod for collecting that portion of the$1,500,000 reflecting medical expenses.

In sending the matter back to thetrial court for determination of theamount of the settlement representingmedical expenses, the Second Districtheld that the plaintif f ’s proposedmethodology was proper. “We agree thatAhlborn itself does not require the appli-cation of the precise formula used in thatcase, although we do not think that thisapproach, which has the Supreme Court’sapproval, should be abandoned light-ly….Section 14124.76, subdivision (a) isthe best evidence [of what the legislatureintended]: it states that in determiningwhat portion of a settlement, judgmentor award represents payment for medicalexpenses, or medical care, provided onbehalf of the beneficiary and as to whatthe appropriate reimbursement amountto the director should be, the court shallbe guided by the United States SupremeCourt decision in Arkansas Department ofHealth v. Ahlborn.”

MEDI-CAL REIMBURSEMENTFORMULA CLARIFIED

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an unintended consequence of the newpolicy may be denial of care to patientswho are at risk for the so-called “neverevents.”

Further, questions have now arisen asto whether or not a patient who experi-ences a “preventable” complication has theequivalent of a “res ipsa” claim against theresponsible provider.

The number and type of complicationscovered under the no-payment policyinclude Stage III and Stage IV pressureulcers, pulmonary embolus from deep veinthrombosis, surgery on the wrong bodypart, retention of a foreign object post-operatively, surgical site infections, trans-fusions of the wrong blood type, andcatheter-associated urinary tract infections.

It is obvious why the governmentmight refuse to pay for some of these com-plications – like operating on the wronglimb – but in other circumstances, likeacquisition of a wound infection, there isdebate in the medical community as towhether or not such a complication neces-sarily implicates a breach of the standardof care.

But what will be the evidentiaryimpact of the refusal of Medicare to payfor a given condition, particularly inlight of California’s MICRA statutes?Can the plaintiff simply argue thatbecause a patient experienced one of theproscribed “preventable” complications,the injury was caused by a breach of thestandard of care?

The California law of medical res ipsaloquitur is articulated in CACIInstruction 518. Under California law,the traditional three elements of proofare required: the harm occurred whileplaintiff was under the care and controlof the defendant; nothing the plaintiffdid or failed to do caused or contributedto the event; and the harm ordinarilywould not have occurred unless someonewas negligent. It is this last componentof proof, measured by CMS determina-tion that as a “matter of law” the compli-cations for which they will not pay were“reasonably preventable” by followingevidence based guidelines that raises thequestion of whether the 28 “never event”

MEDICARE “NEVER EVENTS”–ARE THEY THE EQUIVALENTOF MALPRACTICE?

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WALKUPDATES

implement its “Saiban-in” modified jurysystem. Mike previously taught in Tokyofor a nationwide training in 2008. Thephoto above was taken at the conclusionof the Osaka training and shows Miketogether with other program faculty andattendees. More recently, Mike was hon-ored by the Consumer Attorneys ofCalifornia as one of the finalists for itsprestigious “Consumer Attorney of theYear” Award…In February, Mike wasinvited to address the InternationalAssociation of Defense Counsel’sMidwinter Meeting in Carlsbad,California…Khaldoun Baghdadi lecturedto the American Bar Association’s productliability section on “Emerging Issues inMotor Vehicle Product LiabilityLitigation” at the Section’s meeting inPhoenix, Arizona. Khaldoun alsoreceived an appointment as a lecturer,teaching Evidence Advocacy, at the

Rich Schoenberger has been elected tothe International Society of Barristers, anhonor society of outstanding trial lawyerschosen by their peers on the basis ofexcellence and integrity in advocacy.Members (the Fellows) are elected by theSociety’s Board of Governers on nomina-tion by a Fellow and after inquiry direct-ed to other Barristers in the nominee’sregion and to judges before whom thenominee has tried cases. The ISOB seeksto preserve trial by jury, the adversary sys-tem, and independence of the judiciary.In May, Rich will once again act as teamleader at Emory Law School’s renownedKessler-Eidson Trial Techniques Programin Atlanta, Georgia. Rich was also select-ed to membership on the ExecutiveCommittee of San Francisco’s ABOTAChapter and will serve as chair of its“Masters in Trial” program in May…DorisCheng participated as a faculty memberon behalf of NITA U.K. at its SolicitorAdvocates Program held in Belfast,Northern Ireland. Additionally, havingcompleted her term as Chair of the SanFrancisco Bar Association’s JudiciaryCommittee, Doris was elected to mem-bership on the Bar Association’s Board ofDirectors…Mike Kelly returned toOsaka, Japan in January to continue train-ing Japanese lawyers in oral advocacy andjury trial skills. In May of 2009 Japan will

University of California’s Boalt HallSchool of Law…Emily Wecht was electedto membership in the Edward J.McFetridge San Francisco American Innof Court. Emily also served as a judge atthe John F. Kennedy School of Law’s 2008Moot Court Competition…Spencer Pahlkereceived an appointment as an AssistantAdjunct Professor at his alma mater, BoaltHall, where he serves as a coach for theBoalt Hall Mock Trial Teams…Dan Kellyhas been appointed to serve on SantaClara University School of Law’sStrategic Planning Committee and wasselected to chair his law school class’s40 year reunion...Matthew Davis repre-sented the firm at the San FranciscoBicycle Coalition’s Golden WheelAwards…Melinda Derish attended anational conference on preventingobstetrical injury.

ventable;” and while catheter-associatedurinary tract infections may be frequent,they have never been determined by aCalifornia court to be “preventable” as amatter of law.

Now, with the Center for Medicareand Medicaid Services’ reimbursementdecisions announcing that such compli-cations are “reasonably preventable,” aquestion inevitably arises as to whetheror not res ipsa applies.

To be sure, hospitals, physicians andmedical associations uniformly disagreewith the notion that complications likepatient falls, pressure sores, DVT’s andiatrogenic injuries are necessarily theproduct of negligence. In fact, somemedical spokespeople have suggestedthat Medicare’s refusal to pay for these28 complications may not improve

patient care at all, but instead make thequality of care worse as some hospitalstransfer patients from one to another(because Medicare will not refuse toreimburse the second hospital for thefirst hospital’s mistake), screen patientsso that those who are at higher risk ofhaving a “never event” are not admitted(i.e. the immuno compromised, obese oremotionally unstable), and make it moredifficult to find nursing homes who willaccept seniors at higher risk for decubi-tus ulcers, thereby excluding the mostfrail or elderly from quality care.

Where no good deed goes unpunished,patients are cautious about what unintendedconsequences will follow from an idea thatoriginated from a desire to improve patientcare and reduce government reimbursementobligations.

complications necessarily fall within theres ipsa rule.

Historically, res ipsa has not beencommonly used in medical malpracticeor elder abuse cases. Although there isauthority for the proposition that in cer-tain types of claims, negligence exists asa matter of law (i.e. retained sponges ortowels), those types of cases make up lessthan 1% of the matters that find theirway to trial.

On the other hand, most infectioncases do not fall within res ipsa; most sur-gical site infections are not deemed “pre-

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MEDICARE “NEVER EVENTS”–ARE THEY THE EQUIVALENTOF MALPRACTICE?

RECENT CASES

Pedestrian v. Device ManufacturerIn Pedestrian v. Device Manufacturer (Marin Co. Sup. Ct. – Confidential),Paul Melodia and Douglas Saeltzer resolved a product liability claim onbehalf of a 30-year-old woman who sustained severe pelvic and lowerextremity fractures as a result of being struck by an automobile. The vehi-cle was being driven by a disabled driver who had no function in his lowerextremities. He had contracted with the defendants to install a hand-controldevice in his vehicle, to enable him to brake / accelerate. As designed, thehand control lever extended into an area where it could be moved by pres-sure from the left side of the driver’s torso or legs. As the plaintiff waswalking with a friend, the defendant driver reached around through hisdriver’s side window to retrieve a parking ticket and his left leg moved thehand control lever resulting in full acceleration. Defendants included thenegligent operator, the manufacturer of the hand control device, the installerand the dealership which facilitated original sale of the defendant’s car. Thecase resolved after two sessions of mediation with all defendants contributingto a settlement totaling $4,330,000 as follows: $1,944,000 from thedriver; $993,000 from the manufacturer; $993,000 from the installer; and$400,000 from the dealer.

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PRODUCTLIABILITY

Cyclist v. Union Pacific RailroadIn Cyclist v. Union Pacific Railroad (Santa Clara Sup. Ct. No.107CV078657), Mike Kelly and Emily Wecht negotiated a $1,300,000(present cash value) settlement on behalf of a 61-year-old part-time collegehistory professor who was injured when his bicycle wheel became lodgedin a dilapidated wooden railroad crossing. As the plaintiff rode throughthe crossing (located in a major thoroughfare in the City of Saratoga) hisbicycle froze, vaulting him over the handlebars. He sustained multipleskull fractures and a brain injury. Reconstruction of the accident was chal-lenging because the plaintiff was amnesic for the events leading up to thefall. Plaintiff’s experts utilized damage to the bicycle, helmet and frontwheel assembly of the cycle to reconstruct how the events occurred. In dis-covery, Mike and Emily demonstrated that both the Railroad and the Cityhad been aware that the crossing was known to present a danger to bicy-clists for at least fifteen years before the happening of the event. The defen-dants had spent five years arguing between themselves about who shouldpay to upgrade and resurface the crossing. The settlement included a com-bination of cash and future annuity payments.

Parents v. East Bay Public EntityIn Parents v. East Bay Public Entity (Alameda Sup. Ct.), Matthew Davisand Richard Schoenberger represented the parents of a 14-year-old eighthgrader who drowned in a public pool when three lifeguards on duty failedto see him submerged in 6 feet of water. The pool, operated by the local

GOVERNMENTLIABILITY Engineer v. Medical Physicians

In Engineer v. Medical Physicians (Private HMO Arbitration), Michael A.Kelly and Doris Cheng settled a medical negligence action in the amountof $5,475,000 (present cash value) on behalf of a 35-year-old SiliconValley electrical engineer and his wife when the patient suffered globalbrain damage as a result of delayed diagnosis and treatment of an intra-cranial bleed. The patient presented to the defendants’ emergency depart-ment with a facial droop, slurred speech and numbness in his face andtongue. His HMO-provided physicians refused to admit him for testing,contrary to the recommendation of the E.R. physician. While the patientwaited ten days for a non-emergent MRI, the leaking aneurysm ruptured.Medical experts opined that if the aneurysm had been treated earlier, thedevastating consequences of the rupture would have been averted.Defendants argued that even if the patient had been admitted to the hos-pital, neither a brain MRI nor surgery would have been emergent and thatthe patient would have suffered the same injuries. The patient nowrequires 24-hour a day attendant care because he is unable to perform anyactivities of daily living. The settlement was composed of both cash andtax free annuities.

Chu v. Bay Community ServicesIn Chu v. Bay Community Services (Alameda Sup. Ct. No. HG06-298475), Richard Schoenberger and Spencer Pahlke obtained a jury ver-dict in the amount of $996,000, following a ten day trial, on behalf of amentally disabled woman who jumped from her second story window in apsychiatric facility where she was supposed to have been monitored forsuicidal ideation. The plaintiff, who suffered from schizophrenia, jumped

MEDICALNEGLIGENCE

park district, provided professional lifeguards. The incident occurred dur-ing a junior high school year-end picnic. At the time, dozens of eighthgraders were in the pool. In spite of industry standards obligating lifeguards to scan their assigned zone every 30 seconds, none of the three life-guards saw the young man sink below the surface – even though he wasdirectly in front of them. At deposition, none of the lifeguards were ableto explain how the drowning occurred. One of the students, not a life-guard, was the first person to notice the young man beneath the surface ofthe water. The decedent was the oldest of five children. The claim wassettled for $2,250,000 following an all-day mediation.

Senior Pedestrian v. City and County of San FranciscoIn Senior Pedestrian v. City and County of San Francisco (S.F. Sup. Ct.),Matthew Davis and Khaldoun Baghdadi recovered a settlement in theamount of $2,000,000 on behalf of a 90-year-old woman who wasstruck by a Municipal Railway N-Judah streetcar at the intersection of9th and Irving Street in San Francisco. The plaintiff, a holocaust sur-vivor, was unable to clear the path of the streetcar which turned leftagainst a red light. The settlement was achieved at private mediation,following the compilation of a documentary video which detailed theextent of our client’s injuries, as well as the devastating impact on herlife and family.

RECENT CASES

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from the second floor window at approximately 1:00 a.m., and thereafterlay outside for more than five hours, becoming progressively hypothermic,until a staff member eventually noticed that she was missing. At trial, thefacility claimed the plaintiff had been regularly checked on “throughoutthe night” and that she probably jumped out the window shortly after6:00 a.m., rather than five hours earlier. The jury rejected the defenseclaims. As a result of the fall the plaintiff suffered a burst fracture of herthoracic spine, multiple broken ribs, and residual disability.

Heirs v. Health Maintenance OrganizationIn Heirs v. Health Maintenance Organization (Mandatory HMOArbitration), Michael Kelly obtained a settlement in the amount of$1,200,000 on behalf of the surviving spouse and adult son of a 49-year-old San Mateo County data analyst who suffered a fatal heartattack after HMO physicians delayed in carrying out appropriate diag-nostic studies and definitive treatment despite clear indications thaturgent treatment was necessary. Three weeks before his death the dece-dent, who had been an HMO member for many years, made complaintsto his primary treating physician of chest pain and shortness of breath.Examination and subsequent testing revealed that the decedent hadlikely already suffered a small heart attack and was at high risk foranother. Angiography was scheduled for the future, and nitroglycerinwas prescribed. Our experts testified that the delay in scheduling theangiogram on a “STAT” basis was below the standard of care. Thedecedent continued to have attacks of angina, but telephone calls toHMO personnel were unsuccessful in getting him seen on an urgentbasis. The fatal heart attack occurred the day before the angiogram wasto have been performed. General damages were limited by the$250,000 limit of MICRA. Lost wages, benefits and household helpwere estimated at $950,000 by claimants’ retained economist.

Survivors v. Associated GroupIn Survivors v. Associated Group (Contractual Arbitration – ConfidentialSettlement), Melinda Derish obtained a wrongful death settlement of$800,000 on behalf of the surviving wife and daughter of a 55-year-oldcontractor who died of an undiagnosed aortic dissection after spending 36hours in the hospital without ever being seen by a cardiologist. The doc-tors who saw the patient were internal medicine hospitalists. These physi-cians failed to recognize that the patient needed an emergency evaluationto rule out aortic dissection.

The patient was initially seen in a non-affiliated emergency roomfor acute onset of severe chest pain. The pain did not respond to nitro-glycerin, as would be typical for coronary artery disease. A blood testthat is often elevated for pulmonary embolism or aortic dissection waselevated. The E.R. physician wanted the patient to have a specializedCT that would have made the diagnosis of aortic dissection. TheDefendant Group wanted the patient transferred to a different hospital.A cardiology consultation and echocardiogram could also have made thediagnosis, but these were never ordered. Instead, the hospitalists con-tinued to prescribe nitroglycerine and intravenous morphine for ongo-ing chest pain. The decedent died shortly after a stress treadmill test,which worsens the tearing of an aortic dissection.

Newborn v. Obstetricians and HospitalIn Newborn v. Obstetricians and Hospital (Costal County –Confidential Settlement), a case involving cerebral palsy, Michael Kellyand Melinda Derish negotiated settlement of a claim brought on behalf

of a 2-year-old Santa Cruz County girl who sustained hypoxic braindamage during labor and delivery. Mike and Melinda claimed thatduring the mother’s labor, when the child’s care was signed over from asenior obstetrician to one with far less experience, the baby’s head wasin a position that contraindicated vaginal delivery. The inexperiencedobstetrician attempted to perform a vacuum delivery for fetal distress.The attempt to extract the baby by vacuum was unsuccessful, but theobstetrician did not proceed to a cesarean section. The baby was notdelivered until more than one hour later. She developed seizures shortlyafter delivery. She was eventually diagnosed with hypoxic ischemicbrain damage. A special needs trust was established for the little girlwith an initial corpus of more than $1.4 million dollars.

Female v. Physician and HospitalIn Female v. Physician and Hospital (Central California – ConfidentialSettlement), Paul Melodia and Melinda Derish obtained a mediated set-tlement in the amount of $1,100,000 on behalf of a 21-year-old womanwho lost sight in both eyes over a period of weeks while her primarytreating physician and hospital emergency room doctors failed to recog-nize and treat increased intraocular pressure which ultimately causedoptic nerve atrophy. Although her condition should have been treat-able, none of her physicians appreciated its significance or cause. Thecase concluded after expert discovery. The amount of the settlementreflects the unfair and unequal treatment of victims of medical negli-gence. Had the plaintiff’s injuries occurred as the result of a productfailure, auto accident, or wrongdoing other than medical negligence,her general damage award would likely have been in excess of$10,000,000. Here, because of the Draconian damage cap of MICRA,her compensation for a lifetime of blindness (over 60 years) was limitedto less than $5,000 per year.

Commercial Driver v. USAIn Commercial Driver v. USA (USDC Eastern Dist.), Matthew Davis andKhaldoun Baghdadi negotiated a cash settlement in the amount of$1,900,000 on behalf of a truck driver who was injured when his belly-dump rig fell into a steep ravine after the roadway below gave way. Thesettlement also resolved an outstanding worker’s compensation lien claim,and provided for future medical care. The plaintiff’s employer had beenhired by the general contractor on behalf of the U.S. Forest Service torepair a rural fire road in Fresno County. After heavy snows the yearbefore, the road had washed out during the spring thaw. The general con-tractor hired the plaintiff’s employer to dump “riprap” at the washout site.The general’s representative directed our client to back his fully loadedtruck, weighing in excess of 12 tons, down a narrow unimproved road cutinto a steep ravine adjacent to the Tuolumne River. The edge of the road-way gave way, and the plaintiff’s truck rolled down the ravine. Trappedin the wreckage for more than eight hours, our client suffered neurologicalinjuries to his back and legs which make it impossible for him to continuedriving a truck. The settlement was contributed to by both the generalcontractor and the Forest Service.

WORK PLACENEGLIGENCE

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Heirs v. Commercial Hauling CompanyIn Heirs v. Commercial Hauling Company (Alameda Sup. Ct.), RichardSchoenberger recovered $1,265,000 on behalf of the mother, wife and childrenof a 38-year-old Daly City resident killed when his auto was struck by defen-dant’s truck. The decedent, who worked at the San Francisco Public Library,was riding as a passenger in a car driven by a friend. The friend lost control ofand rolled the vehicle, straddling the number one and two lanes of southboundI-5. During the rollover, a plume of dust was generated, obscuring the visionof oncoming drivers. All oncoming traffic, except for the defendant, slowed.The defendant’s truck barreled into the decedent’s stalled auto at more than 40miles an hour. Experts retained on behalf of the plaintiffs testified that thetruck driver’s reactions were too slow, and his vehicle speed too fast, for pre-vailing conditions. The defense contended that the truck driver was facedwith an emergency and that his efforts to avoid the collision were as good, orbetter than, could be reasonably expected from a professional driver.

Secretary v. Stone Mason ConstructionIn Secretary v. Stone Mason Construction (S.F. Sup. Ct. No. CGC-07-462841),Michael A. Kelly and Spencer Pahlke negotiated a $750,000 settlement onbehalf of a 28-year-old woman who was struck by a fully loaded Ford F-450pickup truck as it made a right turn from Market Street onto the CentralFreeway onramp at Octavia Street in San Francisco. The collision took place asplaintiff was traveling eastbound on her bicycle in a designated bike lane. Thedefendant struck her while making an illegal right turn from Market Streetonto the freeway. In the process, his vehicle pinned her against a retaining wall,resulting in more than 20 fractures to her ribs. The rib fractures caused flailchest and plural scarring, leaving plaintiff with traumatic asthma. Defendantcontended that plaintiff had made a full recovery and had no functional disabil-ities. The defense also claimed that the intersection itself was partially to blame,as statistics demonstrated that it was the most dangerous bicycling intersectionin all of San Francisco. The City and County of San Francisco had been an orig-inal defendant, but obtained summary judgment based upon “approved planand design immunity” as set forth in Government Code §830.5.

VEHICULARNEGLIGENCE

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Additionally, if there is a particular subject you would like to seediscussed in future issues of Focus on Torts please contactMichael Kelly. Visit us on the web at www.walkuplawoffice.com.

Paralyzed Student v. Dance ClubIn Paralyzed Student v. Dance Club (S.F. Sup. Ct.), Matthew Davis rep-resented a 22-year-old college athlete who was injured after paying $10to attend a hip hop dance party. The club where the party took placewas in a high-crime neighborhood. After fights broke out on the dancefloor, hundreds of attendees were ordered to leave the hall. Once evict-ed from the premises, a crowd gathered in front of the establishment.The plaintiff was walking on the sidewalk, headed to his car, when oneof the party-goers pulled out a hand gun and began firing shots. Astray bullet struck plaintiff in the back and rendered him paraplegic.The shooter was never apprehended. We brought suit against the dancepromoter, the owner of the premises where the party was held, andother defendants, on the theory that their negligence in failing to prop-erly organize, supervise and control the crowd was a causal factor inproducing the violence in the street. The case was settled in theamount of $1,425,000.

Renters v. Residential LandlordIn Renters v. Residential Landlord (Alameda Sup. Ct.), Doris Cheng resolveda premises liability claim on behalf of a mother and her 16-year-old son, aris-ing out of their chronic exposure to carbon monoxide. Their landlord failedto maintain and repair an old gas-fired wall heater in the plaintiffs’ Oaklandapartment. Unknown to our clients, the heater continuously emitted exces-sive amounts of carbon monoxide and soot. Both of the plaintiffs developedheadaches and nausea. When the presence of carbon monoxide was discov-ered by PG&E, medical providers checked the son’s carboxyhemoglobin leveland found that it was abnormally high. As a result of their chronic carbonmonoxide exposure, both the mother and son sustained mild but irreversiblebrain injury including deterioration in executive function, impaired concen-tration, and increased emotional lability. Defendants argued that the heaterhad been inspected and replaced only two years earlier, and that plaintiffs’damage claims were overstated. The case settled just prior to trial for theavailable policy limit of $1,000,000.

Student v. Pool Service Retailer and ManufacturerIn Student v. Pool Service Retailer and Manufacturer (ConfidentialSettlement), Doris Cheng negotiated a seven-figure resolution of awrongful death claim on behalf of the surviving mother of a college stu-dent who died from carbon monoxide poisoning while sleeping in herfamily’s pool house. After the tragedy occurred, investigation revealedthat a recently-installed pool heater was producing hazardous levels ofcarbon monoxide. Further investigation indicated that the retailer whoinstalled the pool had not vented it correctly. Litigation against themanufacturer of the defective heater is continuing. Suit was initiallybrought against both the installation company and the heater manufac-turer. The partial settlement achieved with the retailer was in the fullamount of the available policy limits. As part of the settlement, the set-tling defendant agreed to support California state legislation requiringcarbon monoxide detectors to be installed anytime a pool heater is sold,or included with new pool construction.

PREMISESLIABILITY