Med-mal case against Kaiser goes to trial when arbitration clause is beaten. $28 million gross. Los Angeles County.

Summary

Teen loses leg to aggressive cancer when Kaiser delays MRI.  Kaiser Foundation Health Plan is sued for insurance bad faith, but after summary judgment for defense, complaint is amended to include medical negligence against Kaiser's physician group. Plaintiff defeats Kaiser arbitration clause and a second summary judgment motion, and case goes to a jury. 

The Case

  • Case Name: Anna Rahm v. Southern California Permanente Medical Group
  • Court and Case Number: : Los Angeles Superior Court / BC441742
  • Date of Verdict or Judgment: Wednesday, March 25, 2015
  • Date Action was Filed: Thursday, July 15, 2010
  • Type of Action: Insurance – Bad Faith, Claims Handling, Medical Malpractice
  • Judge or Arbitrator(s): Hon. Marc R. Marmaro
  • Plaintiffs:
    Anna Rahm, 16
  • Defendants:
    Southern California Permanente Medical Group
  • Type of Result: Jury Verdict

The Result

  • Gross Verdict or Award: $28,215,278
  • Net Verdict or Award: See below.
  • Award as to each Defendant:

    The present value number for the medical expenses was $3,989,089. The present value number for the loss of future earnings was $1,322,774. The noneconomic damages of $1,839,318 is subject to a reduction per the MICRA limitation of $250,000. The present value verdict  is the number that the defendant is required to pay to satisfy the verdict unless they elect to periodicize the payments.

  • Economic Damages:

    Medical expenses: $20,884,935

    Loss of earnings: $5,491,025

  • Non-Economic Damages:

    Past noneconomic loss: $177,153

    Future noneconomic loss: $1,662,165

  • Punitive Damages:

    Not sought at trial.

  • Trial or Arbitration Time: 4 weeks.
  • Jury Deliberation Time: 1 day.
  • Jury Polls: 12-0 that SCPMG breached the standard of care and on damages awarded. Additionally, the jurors found 10-2 in favor of plaintiff on causation and apportionment of fault.
  • Post Trial Motions & Post-Verdict Settlements: Pending.

The Attorneys

  • Attorney for the Plaintiff:

    Shernoff Bidart Echeverria Bentley LLP by Michael J. Bidart and Danica Dougherty, Claremont.

    The Ehrlich Law Firm by Jeff Ehrlich, Claremont. (Appellate counsel)

  • Attorney for the Defendant:

    Taylor Blessey LLP by N. Denise Taylor and Jennifer Scher, Los Angeles.

The Experts

  • Plaintiff’s Medical Expert(s):

    Anne Barnes, R.N., life care planning, Glendale.

    Ronald Hillock, M.D., orthopedic oncology, Las Vegas, NV.

    David Patterson, M.D., physical medicine and rehabilitation, Pomona.

    Lester Zackler, M.D., psychiatry, Sherman Oaks.

    Daniel Takeda, M.D., family medicine, Simi Valley.

     

  • Defendant's Medical Expert(s):

    Daniel Auerbach, M.D., psychiatry, Encino.

    Kimberly BeDell, M.D., pediatric rehabilitaion, Long Beach.

    Lawrence Menendez, M.D., orthopedic oncology, Los Angeles.

    Thomas L. Hedge, Jr, M.D., physical medicine and rehabilitation, Northridge.

    Stacey R. Helvin, R.N., life care planning, Anaheim.

    Charles E. Irwin, Jr., M.D., adolescent medicine, San Francisco.

    John Vernon Crues, III, M.D., musculoskeletal radiology, Los Angeles.

    Chris Helmstedter, M.D., treating orthopedic oncologist, Baldwin Park. (Southern California Permanente Medical Group)

    Charlene Huang, M.D., treating primary care physician, Woodland Hills. (Southern California Permanente Medical Group)

    Ngan Vuong, M.D., treating physical medicine and rehabilitation, Woodland Hills. (Southern California Permanente Medical Group)

  • Plaintiff's Technical Expert(s):

    Peter Formuzis, Ph.D., economist, Santa Ana.

    Sandra Schneider, M.S., CRC, CDMS, ABVE., vocational rehabilitation, Los Angeles.

  • Defendant's Technical Expert(s):

    Ted Vavoulis, M.S., economist, Los Angeles.

Facts and Background

  • Facts and Background:

    In August of 2008, when plaintiff was 16, she started to experience back pain. It grew worse and in January 2009, she began experiencing radiating pain down her right leg. In February 2009, plaintiff went to the family chiropractor, who was not affiliated with defendant Kaiser. The treatments were unsuccessful and, because the chiropractor was concerned about the cause of plaintiff's pain, he urged her to go to Kaiser  Permanente to seek an MRI. Plaintiff and her mother went to Kaiser Permanente in Woodland Hills and saw plaintiff's primary care physician and a physical medicine specialist on March 12 and 24, 2009. Conservative treatment was begun but no MRI was ordered.  

    During a telephone call with plaintiff's primary care physician on June 16, 2009, plaintiff's mother laid out the history of plaintiff's conservative care and begged the doctor for an MRI. The doctor ordered the MRI., which was performed on July 2, 2009.

    The MRI revealed that the cause of plaintiff's pain was a large, aggressive malignant tumor in her pelvis known as pelvic osteosarcoma. Thereafter, plaintiff had to undergo radical surgery to amputate her right leg, remove half her pelvis and fuse her spine.

  • Plaintiff's Contentions:

    That Kaiser physicians refused to give plaintiff an MRI from March 12 until it was performed on July 2, 2009, which would have revealed plaintiff’s cancer much sooner and could have spared plaintiff the loss of her leg.

    That between March and June 2009, plaintiff and her mother repeatedly requested an MRI from plaintiff's treating physicians at Kaiser Permanente; that both doctors refused to order an MRI, failed to document the MRI request in the medical records.

    That plaintiff Anna Rahm presented with numerous "red flags" during her initial visits to Kaiser in March 2009, including severe nighttime pain, severe or progressive neurologic deficit, major motor weakness, clumsy gait or falling, fever, and failure to improve in 6 weeks with conservative treatment. Her symptoms progressed with additional "conservative" treatments suggested by Kaiser, including yoga, pilates, oral steroids, muscle relaxants, ibuprofen, acupuncture, physical therapy, rest, ice and heat. 

    As a result of the MRI delay, plaintiff's aggressive tumor grew and spread to a location that eventually required the amputation when it was ultimately discovered in July 2009.

    Plaintiff contended that if her cancer had been diagnosed in March 2009, instead of July 2009, her right leg would have been spared and she would have required a much less extensive surgery. Additionally, that she would have much different care needs in the future. Due to the aggressive, doubling nature of osteosarcomas, plaintiff's tumor grew significantly during the four month delay. This growth required the amputation surgery when the cancer was finally diagnosed in July 2009.

  • Defendant's Contentions:

    That in March 2009 plaintiff's chiropractor had ordered an X-ray of plaintiff's spine, which was read as normal.That plaintiff had no red flags when she presented in March 2009.  Thus, she had to pursue conservative treatment first, including medications, physical therapy, weight loss, and consider an epidural steroid injection. That her prior treatment outside of Kaiser, including chiropractic care, did not count as "conservative treatment" to plaintiff's treating physicians at Kaiser because it was not under Kaiser's watch.

    SCPMG argued (and defendant's doctors testified at trial) that neither plaintiff nor her mother asked for an MRI before June 2009 and that plaintiff and her mother caused delays in plaintiff's care because they went to acupuncture, yoga, and pilates, all outside of Kaiser, instead of attending physical therapy at Kaiser in April and early May 2009.

    Further, that plaintiff only saw each treating physician once between March and July 2009; the other communications were all telephonic.

    As to causation, by the time plaintiff presented to SCPMG, her tumor was already in a location and of a size that required the amputation surgery. In other words, an earlier diagnosis in March 2009 would not have changed plaintiff's surgical outcome.

Injuries and Other Damages

  • Physical Injuries claimed by Plaintiff:

    Amputation of plaintiff's right leg, right half of her pelvis, and a portion of her spine; spinal fusion.

Additional Notes

Per plaintiff's attorney:

$1,839,318 of this verdict (pain and suffering) is subject to MICRA; if defense asks for damages to be reduced per MICRA, we intend to fight it as unconstitutional. 

To finally get to trial, the case survived a petition to compel arbitration, two Motions for Summary Judgment, two Writs to the Court of Appeal, three Petitions to the California Supreme Court, and a published opinion.

The complaint was originally filed on July 15, 2010, as an insurance bad faith case, alleging that Kaiser Foundation Health Plan should be held liable for failing to give Anna Rahm a timely MRI to diagnose the cancer in her pelvis. Kaiser responded to the complaint by filing a petition to compel arbitration. Plaintiff successfully overcame that petition on the basis that Kaiser did not comply with California Health and Safety Code section 1363.1(d), in part because neither
Anna, nor a representative from her father's employer, ever signed the binding arbitration clause contained in Kaiser's Evidence of Coverage. Next, Kaiser filed a motion to strike punitive damages pursuant to Code Civ. Proc. § 425.13.

After extensive briefing, the trial court denied this motion because it was an insurance bad faith, not a medical malpractice case. Kaiser appealed. Eventually the Court of Appeal issued a published opinion, Kaiser Foundation Health Plan, Inc. v. Superior Court (2012) 203 Cal.App.4th 696, in plaintiff's favor.

Kaiser filed a motion for summary judgment on the three causes of action for bad faith, breach of contract and emotional distress. Kaiser Foundation Health Plan argued that it could not be held liable in bad faith as a matter of law since the claim was based on the conduct of the treating doctors who delayed the MRI who were employees of Southern California Permanente Medical Group (SCPMG). As for SCPMG, it argued that it is not an insurance company and that it could therefore not be liable for bad faith or breach of contract.

Ultimately, on September 11, 2012, after over two years of litigation, Judge James Dunn granted the MSJ as to all defendants and all remaining causes of action. On September 19, 2012, plaintiff filed a motion for leave to amend the complaint to add a cause of action against SCPMG only for medical negligence. SCPMG opposed plaintiff's request, arguing that the case had been pending for over two years and that it would be prejudiced since it would now be forced to re-litigate the case as a medical malpractice action. Despite SCPMG's arguments, Judge Dunn granted plaintiff's motion to amend the complaint to now pursue a medical malpractice case against SCPMG only. SCPMG petitioned for a writ with the Court of Appeal, which was denied. It then filed a Petition for Review with the California Supreme Court, which was also denied.

On January 28, 2013, SCPMG filed a motion seeking plaintiff pay a portion of SCPMG's costs, in the amount of $52,720, as a result of the recent amendment. SCPMG argued that under CCP 473(a)(2), in allowing an amendment to the complaint, the court could "...require, as a condition to the amendment, the payment to the adverse party of any costs as may be just." SCPMG sought a total payment of $52,720 from then 21-year-old amputee Anna Rahm, which included costs for additional written discovery, SCPMG's experts, depositions, a second MSJ, and $27,720 in fees for SCPMG's law firm. Over our opposition, Judge Dunn granted SCPMG's motion. Plaintiff paid the fees in order to continue the case. After trial continuances, the trial began on February 25, 2015.

 

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 2017 by Neubauer & Associates, Inc. All rights reserved. www.juryverdictalert.com