Undiagnosed heart disease leads to heart attack after surgery. $1.7M arb award. San Bernardino County.

Summary

Plaintiff claims Kaiser never performed EKG prior to hernia surgery.  Low settlement offers.

The Case

  • Case Name: Konopelko v. Kaiser
  • Court and Case Number: San Bernardino Superior Court / CIVDS 1515967 / ADRS Case No. 16-4823-JAC
  • Date of Verdict or Judgment: Wednesday, July 10, 2019
  • Date of Arbitration Award : Wednesday, July 10, 2019
  • Date Action was Filed: Tuesday, October 27, 2015
  • Type of Action: Medical Malpractice
  • Judge or Arbitrator(s): Jacqueline A. Connor
  • Plaintiffs:
    Francis Konopelko
    Evelyn Konopelko
  • Defendants:
    Kaiser Foundation Hospitals
    Southern California Permanente Medical Group
  • Type of Result: Arbitration Award

The Result

  • Gross Verdict or Award: $1,742,229
  • Economic Damages:

    $1,242,229

  • Non-Economic Damages:

    $500,000

  • Trial or Arbitration Time: 9 days.

The Attorneys

  • Attorney for the Plaintiff:

    Anderson & Associates by Andrei Serpik and Michael Anderson, Pasadena.

  • Attorney for the Defendant:

    Kjar, McKenna and Stockalper LLP by James Kjar and Jon Schwalbach, El Segundo.

Facts and Background

  • Facts and Background:

    This was a medical malpractice action stemming from permanent brain injuries petitioner Francis Konopelko received as a result of negligent medical treatment performed by Kaiser Permanente medical staff (“Kaiser”). The petitioners in this action were Francis Konopelko and his wife Evelyn Konopelko. The two causes of action are negligence and loss of consortium.

    Mr. Konopelko, age 53, had a massive heart attack several days after having elective surgery at Kaiser Ontario Medical Center, and after being treated at Kaiser’s Emergency Department on two separate occasions. Mr. Konopelko’s heart attack was caused by undiagnosed significant coronary artery disease. Francis Konopelko underwent bilateral inguinal hernia repair at Kaiser Permanent on July 9, 2014. At the time, Mr. Konopelko was 53 years old, and had all of the risk factors for cardiac disease, including uncontrolled high blood pressure, obesity and diabetes. Despite these risk factors, Kaiser performed a minimal pre-operative exam, which included no blood work and no cardiac clearance.

    Mr. Konopelko suffered from significant cardiac complications after his surgery, including syncope (loss of consciousness), high blood pressure, shoulder and chest pain, and scrotal swelling.

  • Plaintiff's Contentions:

    After his surgery, Mr. Konopelko and his family called the Kaiser hotline at least half a dozen times and took Mr. Konopelko to the Kaiser emergency room on two separate occasions, Each time, Kaiser staff dismissed Mr. Konopelko’s complaints as post-operative pain, and provided no treatment other than some water and a sandwich. Mr. Konopelko suffered a massive heart attack several days later. It was ultimately determined that Mr. Konopelko had multivessel disease with 90% stenosis. He was found to have an acute right coronary artery occlusion with ischemic cardiomyopathy. Due to the lack of oxygen Mr. Konopelko received during this cardiac arrest, claimant suffered anoxic encephalopathy (brain cell death due to oxygen deprivation) which has resulted in permanent and profound cognitive impairments related to memory, attention, information processing and impulse control.

    A review of Mr. Konopelko’s medical records showed that no cardiac testing of any kind was performed by Kaiser to determine whether Mr. Konopelko’s heart was the source of his symptoms. The lone exception was a single line in the ER physician’s notes stating that a normal EKG had been reviewed. Despite this entry, no EKG order or waveform could be found in the medical records, even though Kaiser had multiple systems in place to ensure that all EKG results were stored in the electronic medical record as well as a separate MUSE system which was designed specifically to store EKG results. Kaiser could offer no explanation as to why the EKG results were missing, other than a conclusion that they were “somehow lost in the shuffle.”

    Other errors were also found in Mr. Konopelko’s medical records. For example, the same ER physician note stated that a normal chest X-ray had been reviewed, despite there being no record of a chest X-ray being ordered and no chest X-ray result being in the file. Kaiser later admitted that this entry was made in error due to the ER physician’s use of “smart phrases.” Other errors included incorrect time stamps, incorrect severity index classifications, and undocumented symptoms.

     

  • Defendant's Contentions:

    Kaiser argued that their physicians followed the standard of care and that there was no way they could have predicted Mr. Konopelko’s heart attack or underlying multi-vessel disease. Kaiser argued that the standard of care required the ER staff to perform an EKG and that if the EKG result was normal, no further testifying was required. Kaiser argued that they did in fact perform an EKG, that the EKG was normal, and that this met the standard of care.

    Throughout litigation, Kaiser maintained that despite the erroneous records, an EKG had been performed. 

Additional Notes

The parties engaged in two mediation sessions, where Kaiser offered $30,000 and $250,000, respectively. Kaiser made a § 998 offer of waiver of costs. Binding arbitration took place on May 17, 20, 21, 24 and 28 and June 6, 14 and 15, 2019. After conclusion of Arbitration, Kaiser offered $500,000. All offers were rejected and countered with a demand of $3,000,000. On July 10, 2019, the arbitrator issued an award finding that Kaiser had breached the standard of care by failing to perform an EKG test to determine whether Mr. Konopelko’s symptoms were cardiogenic. The Arbitrator found that had an EKG been performed, it would have more likely than not revealed Mr. Konopelko’s underlying coronary artery disease, and Kaiser doctors would have been able to prevent his subsequent heart attack. The arbitrator awarded damages as follows: (1) past and future medical costs: $940,123; (2) loss of earnings and wages: $302,106; (3) Pain and suffering – $250,000; (4) loss of consortium: $250,000 for a total of $1,742,229.

Disclaimer

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