$12 million for med mal and medical device product liability, including punitives. San Diego County.

Summary

Device intended to minimize swelling after orthopedic surgery causes non-freezing cold injury.  Doctor prescribes it despite prior settlement for malpractice over same device and type of injury.

The Case

  • Case Name: Whitney Engler v. Breg, Inc.; David Chao, M.D.; & Oasis, MSO, Inc.
  • Court and Case Number: San Diego Superior Court / GIC870982
  • Date of Verdict or Judgment: Monday, July 30, 2012
  • Date Action was Filed: Tuesday, August 15, 2006
  • Type of Action: Fraud, Medical Malpractice, Products Liability
  • Judge or Arbitrator(s): Hon. Ronald S. Prager
  • Plaintiffs:
    Whitney Engler
  • Defendants:
    Dr. David Chao
    Oasis, MSO, Inc.
    Breg, Inc.
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $12,696,220
  • Award as to each Defendant:

    Inapplicable since the jury returned with verdicts of strict products liability, breach of fiduciary duty and fraud, wherein Proposition 51 is not applicable.

  • Contributory/Comparative Negligence: Jury found Dr. Chao: 50%; Oasis: 10%; Breg: 40%
  • Economic Damages:

    $68,270

  • Non-Economic Damages:

    $5,127,950

  • Punitive Damages:

    Dr. Chao: $500,000; Breg, Inc.: $7,000,000; Oasis, MSO, Inc.: $0

  • Trial or Arbitration Time: 2 months
  • Jury Deliberation Time: 1 1/2 days for the 1st phase: 2 hours for punitives.

The Attorneys

  • Attorney for the Plaintiff:
    Law Office of Marc O. Stern by Marc O. Stern, La Jolla
  • Attorney for the Defendant:
    Neil, Dymott, Frank, McFall & Trexler, APC by Clark Hudson and Jonathan Ehtessabian, San Diego (for Dr. Chao)
    Law Offices of Adrienne D. Cohen by Adrienne D. Cohen and Danielle Dalton, Santa Ana (for Oasis MSO, Inc.)
    Morris, Polich & Purdy, LLP by Roger Perkins, Mark Hellenkamp, and Michael Hurvitz, San Diego (for Breg, Inc.)
    Bowman and Brooke, LLP by Randall L. Christian, Austin, TX (for Breg, Inc.)

The Experts

  • Plaintiff’s Medical Experts:
    Gordon Campbell, M.D., orthopedic surgery, Palo Alto
    Priscilla Ray, M.D., psychiatrist, past chairperson of the AMA Council on Ethical and Judicial Affairs, Houston, TX
    Daniel Lozano, M.D., Trauma Surgeon, expert on treatment of non-freezing cold injuries, Allentown, PA
  • Defendant's Medical Experts:
    Michael P. Kimball, M.D., orthopedic surgery, San Diego (for Dr. Chao)
    Leonard Deftos, M.D., J.D., endocrinology, on medical ethics, San Diego
    Kenneth Zafren, M.D., emergency room physician, cold injury expert (for Breg)
  • Plaintiff's Technical Experts:
    Robert Pozos, Ph.D., physiology, bioengineering, San Diego
    Kenneth R. Diller, Sc.D., biomedical engineering, Austin, TX
    Alison Vredenburgh, Ph.D, CPE, warnings expert, Carlsbad
    Roberta Spoon, C.P.A., economist, San Diego
    Arthur S. Shorr, hospital and medical quality assurance, Woodland Hills
  • Defendant's Technical Experts:
    Tack C Lam, M.D., occupational health, biomechanics, Los Angeles (for Breg)
    Dennis Coleman, hospital/clinic quality assurance (for Oasis)

Facts and Background

  • Facts and Background:

    On May 23, 2003, plaintiff, a 15 year old, underwent minimally invasive arthroscopic procedures including a medial meniscectomy, plica resection, chondroplasty and removal of loose body material from her knee.  A Polar Care 500 device (mechanized cold therapy device) was prescribed by defendant Dr. Chao as part of plaintiff's post-surgery treatment.  The device consists of an ice chest, a pump, tubing to carry the cold water from the ice chest to the surgical site and a device to wrap around the surgical site through which the cold water is circulated.

    The Polar Care 500 is a Class II prescriptive device, requiring a physician's prescription. Dr. Chao's clinic, defendant Oasis,  sold and rented Breg's Polar Care 500 to surgical patients, and provided the device to plaintiff.

    On June 9, plaintiff and her parents noted blistering on the medial aspect of the knee.  On June 11, plaintiff's mother noted on her calendar "red angry wet wound" in the area of the blisters.

    On the morning of June 12, 2003, plaintiff woke up to find a large black eschar (dead skin) underneath where the Polar Care 500 pad was placed (in the same area as the blisters).  Her parents called Dr. Chao and brought her in to see him on an emergency basis.  Dr. Chao made an immediate referral to Dr. Eddelson, a plastic surgeon (not a defendant), who in turn referred her to another plastic surgeon, Dr. Gocken (not a defendant).  Dr. Gocken performed surgical debridement and said additional surgery would be required.  Plaintiff underwent two additional scar revision surgeries.

  • Plaintiff's Contentions:

    That defendant Dr. Chao recommended to the plaintiff and her parents that they use the Polar Care 500 as it was was better than a bag of ice or frozen peas because it could be used continuously; that it should be used as much as possible following the surgery to minimize swelling, including sleeping with the device in place around the knee, in order to maximize her chances of making a full recovery.

    That plaintiff used the device continuously, and within a week started exhibiting the hallmark symptoms of a non-freezing cold injury. Plaintiff returned to see Dr. Chao on May 30, 2003, exhibiting the classic symptoms of non-freezing cold injury.  Plaintiff contended that Dr. Chao misdiagnosed the injury and told plaintiff and her mother to keep using the Polar Care 500, which they were renting from Dr. Chao's clinic.  This continued until the emergency visit on June 12.

    That in response to plaintiff's question as to the cause of her eschar injury,  defendant told her he had never seen anything like it before, and referred her to a plastic surgeon for consideration of a full thickness skin graft.

    That the Breg Inc. Polar Care 500 device was dangerous when used as directed; that Breg knew that the longer a patient used the device, the greater was the risk of developing non-freezing cold injuries; that even after learning of injuries from the device, Breg never changed the instructions/warnings on the device. 

    That defendants Dr. Chao and his clinic, Oasis were involved in an unlawful prescription scheme to profit from selling and renting Polar Care 500 devices; further, that the manner in which the device was rented/sold violated state law and medical ethics.

    That defendant Dr. Chao knew the Polar Care 500 device could cause injury because he had been sued by an earlier patient (Jeff Warner) who had been prescribed the same device and suffered a non-freezing cold injury (also known as trench foot) and almost lost his leg;  that the earlier case had been settled with Dr. Chao in  2002, only about a year before he prescribed the device to plaintiff with the same usage instructions.

  • Defendant's Contentions:

    That plaintiff had misused the cold-therapy device; that use of the Polar Care 500 could not cause a non-freezing cold injury if used per instructions.  Further, defendant Chao maintained that plaintiff told him she had used the device at too cold a temperature; alternately, that she had used the device with the wrong surgical dressings.  

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Per Plaintiff Counsel: Plaintiff has had numerous medical procedures performed over the years to minimize the scar over the knee. She will have to have two additional revision surgeries in the future to maximize the function and appearance of her knee. She has residual neuropathy (hyperesthesia and dysathesia).

    Per Defense Counsel: Surgical debridement of wound; two scar revision sugeries.  Defense claimed that plaintiff has no physical limitations; that she returned to high school track and tennis and later participated in collegiate equestrain competitions.

Demands and Offers

  • Plaintiff §998 Demand: Dr. Chao's insurance policy limits of $1,000,000
  • Plaintiff Final Demand before Trial: $4,000,000

Additional Notes

Pre-trial settlement offers:

Dr. Chao offered: to waive costs and not file a malicious prosecution action if plaintiff dismissed the case with prejudice.

Breg, Inc. offered: $150,001, on April 21, 2010;
$275,001, on April 26, 2010; and
$500,001, on September 16, 2010.

Oasis offered $50,000 on June 3, 2010.

According to plaintiff's counsel, there are currently more than 250 additional cases, which have been consolidated in a "mass tort" action pending in the San Diego Superior Court against Breg, Inc.  

Both plaintiff and defense counsels note that this was a highly contentious trial, and each claimed improper behavior by the other side. 

Disclaimer

This is not an official court document. While the publisher believes the information to be accurate, the publisher does not guarantee it and the reader is advised not to rely upon it without consulting the official court documents or the attorneys of record in this matter who are listed above.

© Copyright 2018 by Neubauer & Associates, Inc. All rights reserved. www.juryverdictalert.com