1

3

5

6

7

8

9

lU

11

12

!3

lS

10

19

20

?.1

26

27

RESOLUTION RI·:MI::DIES 1101 FifLh Avenue, &230 San R~fae1, CA 94901 Telephone : 800- 778-2823 Facsimll.e : US- 4 57-7843 l?euy D. Litchfie1tl , Neutral llrbitru1.or

IN RE THE BINDING ARBITRATION OF :

No. 9913

claiman t , vs. /\WARD of ArW ['I'RATOR

Rcopomlents.

Pt!rry D. Litchfield , Lhe Arbitrator(s) selected to determine the

dispule between the Pa ~·J iAs in the above referenced action ,

find (s) :

An arbitratiou hedring was held on December 13 , 14 , 15 '- l6.

Il i::t Lhe dec!.sion of tho Arbil.rnlnr(s) 1:hat the prevailing

Party in this A 1 h iL~aLion is :

X The C1aimant(s) i::t entitled to $615,000 . 00

OR :

The Kespondcn t (s) 111 cnti r:led Lo ------------

Awlrd oC ArbJcracnr - 1

A

9

10

ll

12

13

14

15

16

17

)8

)q

20

n

n

23

,.. 25

?.6

2~

20

Nothing in this arbit:r:ation decision prohibits or restricts the

enrollee f:r:om discussing or :r:epo:r:ting the underlying fact.s ,

:r:esults , terms and conditions of this decision to the Department

of Managed Health Ca:r:e.

Dated : J~nuaty 1~. 2017

"w;lTrl o• l\rbl1 J'lU Of - ?

RESOLUTION REMI::DIES 1101 Fifth Avenue, i23Cl

2 San Rafael, CA 94901 Telephone : 800-778- ?.8?.3

J Facsimile : ~15-457-7843

4

5

6

9

9

10

11

12

15

16

17

18

19

20

21

22

23

?.5

?.6

27

28

Perry u. Litchfield , Neut.ra l ArbiLralor

vs .

IN RE THB BINDING ARBITRATION OF:

C.l<lirr.ant,

Respondents .

) ) No. 9943 )

) FINDINGS OF FACT AND ) CONCLUSIONS OF LAW )

) ) )

I . PRELI:-iiNARY STATE~IENT

'!'he under3iqned IJas duly appo1 nted to act as the

ArbitraLor in this binding arbitration proceeding on July 15,

2010. .Jurisdiction !:or he;u:ing this mat;.ter is pursuant t o the

Court Orde:r. or necember 17 , 2009 , compelling "d.>i Lration and

staying the proceedings in State Court .

The Arbitrator has had the opportunity to hear the

testimony of each witness, to observe the demeanor of each

"'i tness, to assess the c1eclibility of each witness , and lo

1 Fine- inor. of l''.act ' Conclu:Jions of t.nw

1

2

J

~

~

6

8

9

10

u

12

13

14

15

16

17

18

l9

20

Zl

22

23

2~

2~

26

l1

r.e

determine weight to be given to the testimony ot each witness.

In making this a~tard t..he Arbitrator is doing so after hearing

all the evidence, the argUinents of counsel, and reviewing the

document..a.ry evidence ildmitted into evidence ot the time of the

arbitration.

The arbitrat1on o~eurred at at

i n Frasno, California , 93711, commencing on Decernba.c

13, 2011 , and conLinuing day to day unlil closing argument on

December 16 , 2011. Before the matter was submjttecl For decision

counsel r equested, Rnd >~.ere granted , the opportunity to file

po~ L-hearinq BriefR an the issue of non-reductibility or future

special darnages . The flnal l.lrief concerning Lhis issue was

received on l)ecember 24 , 2011 , and the matter was then deemed

~:Jubmitted for decillion by thf! under11igned .

The following represents the findings of fact and

conclr•sions of law of the Arbitrator· . If a tinding of (act is

misidenti Ued as il conclusion of law or a conclusion of la., is

misidentified as a findiny of fact , then the i tem shall be

deemed to be whichever it.. should be .

A. LIAB1Ll'l'Y

1.

of the

yea r:s . As a member of

2

IT . fi NDINGS OF

(he1 eiuafter

(hereinafter

the gr·oup ,

FACT

has been a patient..

) for over 15

sought t reatment

1

2

3

5

and care for an ongoing pancreatic problem that had persisted

since 2005 .

2 . Consistent with a rccommendat.ion from

present~d to , t~ . D . ("

staft ,

"), his

6 treating surgeon , on January 24 , 2008 , fo1 a pre-

7 operative clj wi ca l review.

8

C}

to

ll

3 . Quite some time prio:: to pre-operative clinical

review he had hnen diagnosed with schizophrenic pathology

(including "audiror.y hallucinations") and t his condition >~a"'

12 well documented by and ~ad been treated with multiple

13

15

16

17

psychotropic medications, Jncluding Seroquel, Xanax, and

Effexor, since December. 22 , 2006 .

When present.ed to on January 24 , 7.008, it

was in preparc11lon for a distal pancreat.otomy. It was noted at

19 that time that there >~as a past medical history of

19 schizophrenia. At the time o ( che review by she failed 20

21

'-'

23

to perform d l~ental Status Exam as pa1 t. of her assessment . 1\s

expert ~Jitne~~ , M. n. opined, should have

received this Mental Stalus Exam at the time of his pre-

operative c!ini•:al prenenta t..lon . On January 24, 2008 ,

25 psychiatric condition of schizophrenia was not l.n rem.i.s~iou and 26 could best be characterized as st..able bu1: not well control led . 27

AS such , should have ~:eferred 1.0 a psychiatric 26

specialis1:. She a l so should have pre-warned of the

3 f1ndin91 ot Fact ' Conclu$ion~ ~' L<l>l

1

?.

3

4

5

6

7

G

9

10

11

potential for a p:;ychiatric episode following surgery, which she

d.i.d not.

4. On February 12, 2008, was admitted by

for pancreatotomy and underwent a distal pancreatotomy (removal

of d.i.sLal tail ot pancreas) without :;urqical or anesthesia

complied lions . 1en transferred to ICU and ultimately on

February 15 , 2008 , he ~~as ordered tr.:tnsferred from ICU to ·the

Patient Ward. In the afternoon on Februa cy 15 , 2008 , was

transferred to room 325B via a wheelchair . lie was met at his

12 new roo:n by nur!.:e RN. At the time he

was pale and diaphoretic and his 13 arrived to room 3258,

H

15

16

11

18

19

?.0

21

22

23

24

IV bag of Dilaudid (PCA) was empty .

5. After arriving to room 3258 •·equesl:ed t:hat he

be moved to a sinQle room . He remained agitated and was

tachycardic (HR 1?.8) ; had an clcvilted t:emperature (99.4);

elevated respiration ra te (RR 18) and elevated blood pressur e

(152/75 vs. 119/72 on December 12 , 2008 p~r anesthesia pre- op

evaluation) . tt·er. reported LhaL "I just: sa1o1 my ex-wife ;

s he probably works here". As of the reporting of this

hallucination remained unaware of

25 psychiaLric condition .

26

27

20

6 . knew that was vulnerable following

surgery based on his menta] r.ondition. She also had information

in her pos::~ession prior to t.he subject surgery that had

Fln~iing.-a u( .-~~L ' Concl usions of' l...lW

1

2

3

4

5

6

1

8

9

10

11

had i~rational thoughts after a previous surgery at and

thal he had a prior incident of leaving the facili~y

followi ng surgery dgalns t medical advice . d jd nothing

to fore~1arn the other s taff members of these facts when

she clearly should have , ilt a minimum, cold the nursing staff of

the mental condition a nd ri.sks associated wj th t his patien t.

7.

Nurse

, after hearing what he thought was a request by

to leave Lhf> hosplLal , proceeded trom the third

Eloor , down the staircase Lo the lobby. Nurse followed

12 frorn his room on t he third floor to the lobby, at which

1l time she chose to return to t he third floor to attend to other

IS

16

11

18

19

20

21

22

23

7.4

25

26

2'1

2D

patient:s . After retur ning she requesLed Nurse go after

. Nurse proceeded down che stditcase to the lobby

whe1eupon she mnde contacL wlth

8 . In the meantime, Nurse

advised her of the circumstances .

t he following question to Nurs e

con1:acted and

sarcastically posed

"What do you want me to

do, go aEte1· him". made no aLtempL Lo mCike contact with

her patient . Meanwhile, ultimately decided Lo ledve the

lobby area and exit t he hospital, with Nurse t'ol.Jowi ng

closely behind. As they exited the hospital and entered the

hospi t al parking lot , hospital security came on the scene. Nurse

requested LhaL security restrain

security refused stating LhdL they were only ullm1ed to observe .

f"in()i ng:t of !-.. act ' Conclusion& nf 1.1tw

l

2

.!

4

s

As o( this time no one from t.he hospital. had mode a

determinat.ion t.hat was a dangMr to himself or others a~d

should be reslrai ned, when lt •;,~a s obvious thc1t. he "'as a danger

to himself and others. Also, security should have responded

6 affirmatj vely l<) Nurse request and rest.raineci

7

8

9

10

11

so that he wou ld nol cuuse danger to himself or others .

9 . Ultimc~lely , ended up in a traffic thoroughfare

and attempted to enter a third party' s vehicle from Lbe

passe nger' s sidn . 'rhe driver of the vehicle accel a rated

12 dramatically while was grasping to the passenger door .

lJ Ol Limately she came to a stop and suttered, among other l4 things , severe head in"judes. was transported by lS

ambulance to an.:>ther h<•SPi tal for treatment and care , the total ! 6

17 of which resu 1 l-f!d in billings of approx·i ma rel y $150 , 000 . 00 .

18 B . DAMJ\GES

19 10. As a consequence of the accident following 20

21

n

23

departure from Respondent' fl facil l t.y , sustained severe

bcdill trauma, and other hodily in juries . Before this accident

was very active, tiding dirt bikes, dune buggicfl , and

other A'rVs . He clid target practice with his daughter and

25 enjoyed going to basebGll games and NASCAR events . As a result 26

27

29

of h.is injuries, he has slowed down significantly . He is no

J.ongar ab:le l.<> be in largo crowdn and c11nnot al.tond basebaJ.l

games und NASCAR events. He developed a ve'Cy short attention

6

1

z

3

4

5

sp.:~n and has become extremely emoL.i.onal. He now has signt t'ic;,nt

merr.ory loss. has difficulty finding words and h.:~s become

anxious and withdrawn. 'l'o hls famil y Ll'~ like getting to kno•,r

a new person. He initially appeared to lose his will to live

6 and he appears lo have lost his spirit for Jiving. He is

7

e

9

JO

ll

essential ly courined to h:ls home tor t he most part and doesn ' t

do any of the things he used to for recreation .

11. has been on disability since the e.:~rly 90's

and receives .:1 monthly chl'ck from :;ocial Security :ln the amount

12 of $680.00 . He has no.: paid any of his "outside" medical bills

13 and they have be•m pa icl by Hedicare. 14

lt appear:; that t hnrf) no longer is a chance of full 1:;

recovPry from this brain trauma . lie will always have the br.lin 16

darnaqe since it has been present tor over three years now. 1'1

16 12. 1\s ages he will develop progressive cognitive

19 decline and will necessarily have various forms of home health 20

21

2?.

'-3

2~

care until his death . Due Lo his compromised physical stata and

his psychiatric condit~.on it is more likely than not that his

life expectancy will be less Lhan wha t is provided by the us

Government Life Expectancy statics and that Mr. should

25 be cxpP.cLed Lo live to the age of 69. He will need 26

27

28

approximately Lwo hours per day of .:~ssistance between the age of

60 and 65 or Eor five years. Applying a reason~hlP. r ate o r

$20.00 per hour, this results in damages of $73,000 . 00. He will

7 :indinq8 of F~ct & COnclusion~ 01 LOW

l

2

3

4

;

6

1

8

9

10

ll

then need four more yetir~ of care, but such care will he

necessarily more int~nsive. A reasonable estimate of the needed

care i s eight hours per day For four years . The reasonabJA rate

should be adjusted for intlation at Lhe level of $25.00 per

hour . This amounts to allowable damages of $292,000.00 .

The pajn o~uu s uffering of clearly exceeds the

maximum pe.cmissible recovery for pain and suffen.ng pursuant to

Civil Code SecLion 333J . l ($250 , 000.00).

Oased oo the above , is enlitled to a recovery as

12 against in the amount of $615,000.00.

l3

14

15

16

11

19

19

20

21

?.2

n

2~

III . CONCLUSIONS OF LMI

ln coming to 1:he decision on the issues of l i 11bility and

damages, the Arbitrator is nindful of the following precedent:

The standard of proot of causatjon in a medical malpractice

action requires Lhat t~e plaintiff prove that the defendant ' s

negligence probably cal:Sbd the iniury . Jones v Or tho

Plli1Jmaceutical Co1.p . (1985) 163 Ca1App 3d 396, 402 ~403,

Morgenroth v Paci•"ic Medical Centel.· Inc. (1976) 54 C:alApp 3d

521. ·rhese decisions make it clear that plainliff in a

rna 1 practice case must pr·ove !..he defendant ' s negl 1gP.nce, ln

25 probability, proximately caused the injury . ll mere pos~ibi.l.ity ?6

?7

?R

alone is not sufficient. Furthermore, causation must be proven

with a reasonable mcdi·::a.l probability based upon compete11t

expert testimony.

B FindtnqA of ~·.:acl & Conclusions or l.nw

1

2

J

1

5

6

7

8

9

10

11

12

13

H

15

11>

ll

16

IQ

20

21

22

23

2~

25

?.6

2"1

28

1\s respondent's counsel appropriately poinl~ out in its

arbil..ration briet, medical malpracLice is the tailure of t.hP

111edical practitioner to pos:;ess and exercise that dcqrec of

learning , skill, knowledge and care in Lhe diagnosis and/or

tre.ll.rnent of the patie:1t that •.-~ould be expected of a

pracLitioner in good standing In Lhe s~ne or sjmll ar locaJity,

nnd under similar circumstances. /Iuffman v Lindqu1st (1951) 37

Cal 2d 465 : see also Sinz v Owens (1949) 33 Cal 2d 749; CACI

501 . The app l.icable standard with respect Lo .:;pecial ists is the

skill and learning normally possessed by specialisL~> under the

same or similar ci rcumstances. CarmJ.chae 1 v Rei t ;,: ( 1971) 17

CalApp 3d 958; f:ACT 502.

A doctor ts noL re~>ponsible tor adverse ce:;ults in the

diagnosis and/or treatment o r a paLient in the absence or a wanL

of rea~onable care and skill , because the doctor is not a

warrantor of cures or required to guilrantee results. Stephenson

v Kaiser FoundiJ~ion JfospltaJ.s (1962) 203 CaJApJ) 2d 631.

Applytng the aro~ementioned authority to the finding of tacts in

the present maLter, the Arbitrator concludes :

1. Respon<.hmts failed to exerci.RA t hat degree of learning ,

skill, lmowl edg·~ and cilre in the diagnos i s and treatment of

claimant that would be expected or a practitioner in good

sLandinq in the same or similar locality, and undec similar

circumstances. Spccifi~ally:

9 F·i.ndlfl!J:.I ot Filet ' ConcJusior..R of lot'tw

l

2

J

~

!>

a . Respondents behavi or fell below the standar<.l of

care when the treating surgeon , , fan ed to

adm i roister a Me nt a l StHtus Rxam at t he pre-operative

e xamination . In the absence of a Mental Status Exam,

6 should have, ~L a mir.imum, referred Lo a [>l:lydtlatrist to

1 assist in pre- and posL-operative care . 8

9

10

l1

12

13

lil

15

16

l7

18

b . Respondent should have advised of thP.

potential mental consequences of the surgical procedure and

having failed to do so lacked t rue i n±ormed con~ent to perform

the distal pancreatotomy.

c . Respond~:nt also breached the appll cable standard

of care when fi'lilerl to inform the treiltment team, i . e .

nursing staff, of menLal condition.

d . Respondent also breached the app l.i.cabl e standar d

of cr~re when failed to have an appropriate medic~l.ion

l~ regimen ready and availilble should mental status 20

21

22

23

?1

26

21

28

require lmmediale attention .

e . Respondents failure Lo restrain the patient when

it her.ame obvious he was a danger Lo himself and others also

amounted to a failure of t.he .respondent t o e xercise t hat degree

of learning, skil.l. , knowledge and care that would be expected of

a practitioner in good standing the in same or similar locality,

Mnd under similAr c i rcum~tances . When left t he third

floor he went to the lobby. He spent an appreciable runount of

10 Find.ingll of Fnct. ~ c;onol u!lion:; ot Low

1

2

j

4

!\

time .Ln t he l obby before he exi.ted the hospital. A code grey

should have been initiated. Hospital necurity should have been

on the scene by then , and represent.ative» o! the hospit:al should

have instituted restraint when it was obvious that had

6 become a cla nger to himself and othet:s . E'urt.hermore , hospital

1

8

9

10

11

security should have restrained the patient when he Wds

approached in the parking lot by security . They dlso should

have (allowed the direction of Nurse to re~:~Lrain the

patient. 'l'he failure of security to do so WdS cc~nol.her example

12 of behavior which fell below the applicable standilrd of care .

D 2 . It. is l.ht:! conclusion of the Arbitrator thr~t the 14

tS

16

11

18

aforementioned ac t i ons and inactions of respondent, in

probability, proximat:ely Cii\ISed the injuries which were

sustained by when he was involved in d

pedestrian/vehicular accident fol.Lo1dng his deJ?d' t.ure £rom Lhe

19 hospital. Put another way, the evidence presented proves that

20

21

7.2

ZJ

24

25

26

2'1

28

within a reasonable medical probability respondent's hehavior,

i n probabilily, proximately caused the injuries wh ich

s u.ffered .

3 . Civil code section 3333.2 limits non- economic losses in

this case to $250, 000 . 00 . Claimant's non- economic damages exceed

$250 , 000 . 00 .

1 . Civil code section 3333.1(a) allows a healthcare

provider who is a defeudant in d medical malpractice action to

ll 1-'t nd lnqs ot ~olcl & C'onc lusion:J of Law

!

2

3

5

6

7

8

10

II

I?

l.S

14

l!>

6

17

ta

19

20

?.I

??

23

2~

25

~6

2'1

28

introduce e vidence ot col l ateral source payments availabl e to

the plaintiff as a result of the plaintiff' s injury . In Lhis

case, the parties have stipulated that the reasonable value of

past benefits received frorn collateral sources equals

$150 , 000 . 00 . By virlue vf Civil code section 3333 . 1(a) claimant

is precluded from rcco1·ering for his treatment and care in that

the same was paid by Medi care.

5. Althouqh counsel spent considerable effort arguing the

non-ceductability of tuture special dilmages the issue is moot in

that it is the Arbitrator ' s conclusion that it is nol reasonably

likely Lhe benefits wi.ll be paid in the future. As pointed out

by respondent in its br1 ef on t.h'l s issue , "if the trier of fact

concludes that it is not reasonably likely the benetits will be

paid in the future, the trier of fact will not deduct Lhe

benefits from the pl . ..; i uU f f ' s future damages". (Page 11, lines

12- 13 . )

6. Based on the findings of ract, claimant is entitled co

$365,000. 00 in futuro damages . Claimant is awarded $250,000 . 00

for pa iu , suffering and any other non-econouL.lc losse::~ . Cl aimant

is entitled to at total award of $615,000 . 00 as against

Respondents.

Da tetl :

t•J ndinqs ot rAce ' Conr.lu"iontJ o f l.uw