Medical Malpractice and Kaiser Malpractice

We have achieved outstanding results both in civil court and within the Kaiser arbitration system

“Medical malpractice” refers to failures by health care professionals to provide treatment to their patients that meets the minimum “standard of care.” When a health care provider’s failure to meet the minimum standard of care injures a patient or causes their death, the patient or the patient’s family members are entitled by law to seek recovery for the harms and losses they have suffered.

Medical malpractice claims arise from a variety of circumstances, including:

  • Failure to diagnose
  • Failure to refer to a qualified physician
  • Negligent treatment
  • Emergency room mistakes
  • Surgical errors
  • Surgical instruments / foreign objects left in the body after surgery
  • Birth injuries
  • Medication errors
  • Nursing Home / Skilled Nursing Facility (SNF) neglect
  • Obstetric malpractice
  • Anesthesia errors
  • Failure to obtain a patient’s informed consent

In most medical malpractice cases, patients have the right to have their case heard by a jury in civil court. Unbeknownst to many Kaiser plan participants, however, when they become a Kaiser patient they sign an arbitration agreement waiving their right to a jury trial and agreeing, in advance, to have any claim against Kaiser heard by an arbitrator in an arbitration system. This is a significant difference that affects the patient’s rights in profound ways.

As described in the representative cases below, Emison Cooper & Cooper has achieved outstanding results litigating medical malpractice cases both in civil court and within the Kaiser arbitration system.

Successes in Medical Malpractice and Kaiser Malpractice Cases

Case Type: Medical Malpractice
Case Description: Doctor prescribed medications to expecting mother that caused severe birth defects.
Result: $5.266 Million Settlement

In 2004, a female in her 20's was diagnosed with bipolar schizoaffective disorders. A California trial court found that she was “gravely disabled” and incapable of providing for her own food, shelter, or clothing. The court ordered that she be placed under a county conservatorship and took away her ability to make her own health care decisions. That power was given to a conservator.

A County psychiatrist began prescribing Depakote to treat her mental disorders. Depakote is known to cause birth defects, including spina bifida, if administered to women during the first trimester of pregnancy. The female's conservator consented to Depakote on her behalf. Both the psychiatrist and conservator knew that the female was capable of bearing a child as she had a previous child. Both the psychiatrist and conservator also knew that she was highly sexually active and that she often traded sex for cigarettes from janitors or other boarding house personnel. Nonetheless, neither the psychiatrist or the conservator did anything to protect against the female becoming pregnant while taking a medication that would harm her fetus.

The ticking time bomb went off. The female became pregnant. The pregnancy was not diagnosed until her second trimester. Her psychiatrist immediately ordered that she stop taking Depakote. But it was too late, the damage was done. The baby was born with a number of birth defects caused by Depakote, including spina bifida resulting in L4 paraplegia, hydrocephalus, and club feet. Analysis of the baby's DNA revealed no chromosomal abnormalities.

After extensive discovery, the case resolved one week prior to the hearings on Defendants’ Motions for Summary Judgment for $5,266,000.00.

Case Type: Medical Malpractice
Case Description: Obstetrician failed to diagnose severe birth defects prior to birth.
Result: $3 Million Settlement

In 2007, an expecting couple sought prenatal care at a local hospital. Despite the widespread availability of prenatal diagnostic testing, the defendant hospital failed to offer the expectant mother appropriate first or second trimester prenatal testing. As a result, the couple’s child was born with severe birth defects including esophageal atresia (a condition in which the esophagus is not attached to the stomach making it impossible to eat), tracheoesophageal fistula (an abnormal connection between the esophagus and trachea), and Down syndrome. In his first two years of life, the child was subjected to more than a dozen surgical procedures attempting to restore the natural function of his esophagus. The severity of the child’s conditions will necessitate a lifetime of expensive medical and nursing care.

Emison Hullverson represented the child’s parents in their medical negligence claims seeking to secure the compensation necessary to pay for the extraordinary medical expenses that the child will incur throughout his lifetime because of the hospital’s negligence. As part of its work to prove the hospital’s negligence and the child’s lifetime needs, Emison Hullverson retained and worked extensively with top national experts in the fields of:

  • Obstetrics
  • Obstetric radiology
  • Maternal-fetal medicine
  • Pediatric physiatry
  • Pediatric neurology
  • Pediatric neuropsychology
  • Economics and life care planning

As a result of our efforts, the case resolved successfully at mediation for an amount of $3,000,000 which will purchase the annuities necessary to fund the child’s lifetime medical needs. At the hospital’s request, its identity remains confidential.

Case Type: Medical Malpractice
Case Description: Neurological injury caused by anesthesia without appropriate monitoring.
Result: $1.5 Million Settlement

A physician went in for a routine shoulder surgery. The physician was given post-operative pain management narcotics. The standard of care requires that patients receiving narcotics of the type used in this situation be monitored to ensure that a cardiac or respiratory arrest is identified immediately. The anesthesiologist who ordered the narcotics failed to order the necessary and appropriate monitoring. The patient arrested leading, the arrest was not immediately identified, and by the time the patient was resuscitated, her brain was damaged.

The case resolved for $1,500,000 without litigation.

Case Type: Medical Malpractice
Case Description: Delayed ambulance transport caused child's death.
Result: $1.4 Million Settlement (in a case other attorneys had assumed was capped at $250,000 due to MICRA)

In 2008, a seven year old girl experienced an intense headache at school. By the time her mother picked her up, the girl’s headache was so severe that she could not walk. The mother quickly drove her daughter to a local emergency room where a CT Scan was promptly administered. A left cerebellar hematoma (a life threatening, but surgically treatable, condition) was diagnosed requiring prompt transfer to a neurosurgery facility. The standard of care required the transfer to be completed within 30-60 minutes of diagnosis. Tragically, because of a series of hospital, ambulance and individual errors, the transfer to the neurosurgery facility wasn’t even requested for more than an hour and eventually took more than 5 hours. During this delay, the girl’s parents had been told that urgent transfer was critical to their daughter’s survival, but were forced to stand by, hour after hour, and watch their daughter’s life ebb away. As a result of this inexplicable delay, their seven year old child died on the operating table.

Emison Hullverson represented the child’s parents in their wrongful death /medical negligence claims against the hospital and the two ambulance companies involved in the delayed transfer. Remedies sought from the hospital included compensation for each parent’s emotional harm caused by losing their daughter and by witnessing her condition deteriorate throughout the unnecessary transfer delay, as well as institutional review of the hospital’s transfer policies and procedures that allowed this tragedy to occur. Emison Hullverson retained an expert in emergency medicine, two neurosurgery experts, and an expert in hospital administration and procedure and worked with the defendant hospital to create a new transfer policy intended to prevent this type of tragedy from ever occurring again.

The case against the hospital resolved successfully at mediation for an amount that remains confidential at the hospital’s request. As part of the settlement, the hospital has instituted the new system-wide transfer policy.

Case Type: Medical Malpractice
Case Description: Kaiser failed to diagnose patient's curable condition causing death.
Result: $827,901 Arbitration Award (the third largest arbitration award against Kaiser in California in 2008).

In 2005, Carlton W. was a 36 year old Deputy with the San Francisco Sheriff’s Department and father of two young children. On three occasions between September 2005 and February 2006, Carlton sought medical treatment at Kaiser for signs and symptoms consistent with hypercalcemia – a relatively minor and curable condition. A routine calcium test administered on any of those visits would have detected the condition and saved his life. In violation of the standard of care, however, Kaiser never tested Carlton’s calcium level, and his hypercalcemia progressed undiagnosed and unchecked. On February 14, 2006, Carlton’s critically high calcium level interfered with the electrical conduction of his heart and caused a cardiac arrhythmia that killed him.

Emison Hullverson represented Carlton’s two young children in a wrongful death case against Kaiser seeking to recover compensation for the economic damage and emotional loss caused by the death of their father.

Kaiser denied all liability, claimed that their physicians met the standard of care in all respects, and never offered a penny for this family’s loss. Emison Hullverson retained numerous top experts in endocrinology, cardiology, internal medicine, and economics, tried the case to an arbitrator, proved that Kaiser’s doctors were negligent, and won the case. The arbitration award secured for Carlton’s children full compensation to replace the economic support that Carlton would have provided to them over his lifetime, including money for their education, as well as additional sums for the loss of their father’s emotional support.