oia-kaiserarb.comoia-kaiserarb.com/pdfs/brockman-robert.pdf · the taking of testimony was...
TRANSCRIPT
Arbitration Award
Instructions: Use of this form is optional. Within fifteen business days of the date of the closing of most arbitration hearings, the Neutral Arbitrator must serve the Arbitration Award on the Parties and . If there were three arbitrators, this Award must be signed by at least two of them. See Arbitration Rules 37 - 39. Return to:
Fax:
Arbitration Name: Arbitration Number: 12847
iabe v.t J:bYQ~OV\ , the Arbitrator(s) selected to determine the dispute between the Parties in the above referenced action, find(s):
An arb~tration hearing was held on-----------------
It is the decision of the Arbitrator(s) that the prevailing Party in this Arbitration is Check one:
__ ,_The Claimant(s) is entitled to ____________________ _
Or:
V/ The Respondent(s) is entitled to a IJ. <'.{<.A/Cl~ o-f 11\D }1{;... b 1-/ i±y The reasons for this decision are attached. (Arbitration Rule 38 requires that the Award provide findings of fact and conclusions oflaw, censistent with California Code of Civil Procedure Section 437c(g) or Section 632.)
Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or reporting the underlying facts, results, terms and conditions of this decision to the Department of Managed Health Care.
i
~ /11;!,s; Date '
Signature of Party Arbitrator Date
Signature of Party Arbitrator Date
1
2
3
4
5
6
7
8
9
10
Robert J. Brockman Attorney at Law Post Office Box 511 Walnut Creek, CA 94597 (925) 932-6623
Arbitrator
In re the Arbitration of:
Claimant, Arbitration No. 1284 7
11 vs.
12
13
14
15
16
,et al.
Respondents
oOo MEMORANDUM OF FINDINGS OF FACT AND CONCLUSIONS OF LAW
Arbitration Hearing Dates:
July 27-30, 2015
1 7 Neutral Arbitrator Robert J. Brockman submits the following
18
19
20
21
22
23
24
25
26
27
28
Memorandum of Findings of Fact and Conclusions of Law in support of the
Arbitration Award in this matter.
INTRODUCTION
Claimant brought this action for medical malpractice
against the Respondents. By way of a Demand For Arbitration-Complaint
For Damages dated April 29, 2014 and served on the Respondents on
April 30, 2014, Claimant alleged that he suffered general and special
damages as a result of Respondents' failure to properly schedule and
manage a hernia surgery and administer a glucose injection prior to the
1
Memorandum of Findings of Fact and Conclus i ons of Law
1
2
3
4
5
6
7
8
9
10
11
12
13
14
hernia surgery. During the pendency of this action, Claimant further
alleged that his damages were caused by Respondents' decision to
perform a vein removal surgery that fell below the applicable standard of
care. An additional contention by Claimant is that Respondents performed
the vein removal surgery without his informed consent.
Respondents are
(collectively "
, RN and
" or "Respondents") together with
, RN. There was no evidence
presented on this point, however the briefs submitted in the case indicate
that Respondents and were employees of at the
time of the events upon which this action is based. There was testimony
that , MD was likewise an employee of at the
15 time of the subject events, and performed the vein removal procedure on
16 Claimant that is one of the bases of this action. There was further
1 7 indication that RN was later designated as a
18 Respondent in this action.
19
2 o PROCEDURAL HISTORY
21 Demand For Arbitration And Case Management. Demand for Arbitration
22 was served on Respondents on April 30, 2014. An Arbitration
23 Management Conference was held on August 8, 2014, resulting in the
24 setting of the arbitration hearing on July 27th through July 30th, 2015 and a
25 Mandatory Settlement Meeting on January 14, 2014. It was agreed during
2 6 the Conference that substantive motions in the case would be subject to
2 7 the deadline prescribed by the Code of Civil Procedure.
28
2
Memorandum of Findings of Fact and Conclusions of Law
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Motion For Summary Judgment. On March 24, 2015, Respondents filed
and served a Motion For Summary Judgment with a hearing date of June
15, 2015. Claimant filed and served his Opposition To Motion For
Summary Judgment on June 1, 2015. Prior to the hearing date of June 15,
2015, Respondents dropped their Motion For Summary Judgment.
Arbitration Hearing And Counsel. The arbitration hearing was held on
July z7th through July 30th, 2015 in Modesto, California. At the hearing,
Claimant was represented by , Esq. and
Esq. Respondents were represented by , Esq.
Stipulations Of Counsel. At the outset of the arbitration hearing,
counsel stipulated that all of Claimant's medical and related records at
could be admitted into evidence, along with medical records
generated by his treatments and consultations with medical professionals
after he left the care of Further, counsel stipulated that the
curriculum vitae of any expert to be called in the case could be admitted
into evidence in lieu of testimony from the expert as to his or her
background, education, and experience. The opposing party was to retain
the right to cross examine any such expert as to his or her qualifications
to testify.
Motion For Nonsuit. During the arbitration hearing and at the close of
Claimant's case, a motion for a nonsuit made by Respondent counsel was
granted as to Respondents and based on the absence of
any expert opinion proffered on behalf of Claimant to the effect that the
conduct of these Respondents fell below the applicable standard of care in
connection with the administering of the glucose injection.
3
Memorandum of Findings of Fact and Conclusions of Law
1 Evidence In The Case. Documentary evidence was proffered by
2 Claimant along with testimony from the following witnesses: Claimant
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
. Claimant's wife
, MD, and expert economist
, vascular surgery expert
Claimant's current
treating neurologist Dr. was unavailable to testify at the hearing,
but his records were admitted into evidence per a stipulation of counsel.
Documentary evidence was submitted by Respondents along with
testimony from the following witnesses: the
performed the vein removal surgery
surgery expert , MD, neurology expert
vascular surgeon who
, MD, vascular
, MD,
vocational rehabilitation expert , and economist expert
The taking of testimony was completed, documentary evidence was
admitted into evidence, oral argument was presented by both sides, and
the case was submitted to the arbitrator for decision on July 30, 2015.
FINDINGS OF FACT
Claimant age 50, worked for several years at
2 O a manufacturer of insulation panels. One of the benefits of his
21
22
23
24
25
26
27
28
employment was a membership in a group plan for medical care provided
by These benefits were in effect through January of 2013 and
continuing to the end of December, 2014.
Claimant's job involved driving a forklift and at times manually moving
materials, including insulation panels weighing up to 110 lbs., sometimes
4
Memorandum of Findings of Fact and Conclusions of Law
1 with the assistance of others. He described the manual work as "heavy"
2
3
4
5
6
7
8
9
10
11
12
13
14
and demanding.
On 01/28/13, Claimant appeared at the in Modesto to
undergo a scheduled hernia repair. He testified that while waiting for his
surgery, he was prepped with an I.V. and given a dose of glucose through
the I.V. to manage his diabetes before undergoing surgery. He and Mrs.
testified that he experienced acute pain in his left forearm while
the nurse was injecting the glucose into the I.V. The hernia repair was a
success, but he reported ongoing pain in a telephone call to on
01/30/13. In the following days, he reported pain at the I.V. insertion site
on his left hand. At a post-op appointment with hernia surgeon Dr.
on 01/13/13, Claimant complained of a left forearm palpable
vein. An exam indicted a superficial vein thrombosis in the left forearm
15 distally that "should heal over weeks to months." He saw his primary
16 care doctor, Dr. , the next day. Claimant complained of pain going up
1 7 his forearm and arm and a painful lump in the forearm and arm. He was
18 advised to use ibuprofen and warm compression and to contact the doctor
19 if it failed to improve in a week or two. On 02/28/13 Dr. found that
20
21
22
23
24
25
26
27
28
Claimant's vein was still knotted and tender and Claimant reported pain in
his arm and shoulder area, swelling and pain in two of his fingers. Dr.
referred Claimant for a consultation with a vascular surgeon.
Claimant's medical history includes complaints of left arm pain dating
back to 2005, and indications of at least two instances of treatment of his
left elbow complaints with injections. One of these injections occurred in
July of 2011 and involved a complaint of pain when attempting to pick up
5
Memorandum of Findings of Fact and Conclusions of Law
1 heavy objects. In September of 2011, he complained of elbow pain when
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
using his hand, and was referred to physical therapy for his elbow.
Claimant saw vascular surgeon Dr. on 03/01/13, complaining
of left wrist and forearm pain with swelling and numbness in the 3rct, 4th,
and 5th fingers of his left hand. Dr. examined him and confirmed
the diagnosis of thrombosis in the left arm. Dr. encouraged
Claimant to continue with warm compression and increased the dosage on
his ibuprofen prescription. During a telephone consultation with Dr.
on 03/08/13, Claimant reported ongoing severe pain in the left
arm, and Dr. advised he could add Norco to his regimen of
ibuprofen. An ultrasound was performed on that date. The more serious
deep vein thrombosis was ruled out by the ultrasound. In another
telephone consultation on 3/18/13, Claimant reported to Dr. that
his pain had not improved. On 03/20/23, Claimant saw Dr. again
and reported that the pain in his left arm had not improved despite the
ibuprofen and warm compression, and further, that he could not perform
any strenuous activity with his left arm or work as a forklift driver due to
pain. Surgical removal of the vein with the thrombosis was discussed.
The records indicate that Dr. advised Claimant (and Mrs.
who was present) of the risks and benefits of the proposed vein removal
surgery, including that despite the surgery, Claimant might continue to
have persistent pain, and that there are risks with the surgery of bleeding,
infection, nerve injury, arm swelling, arm numbness, stroke, heart attack,
and death. Claimant and Mrs. testified that Dr. stated to
them that the vein removal surgery would eliminate his left arm pain. Dr.
6
Memorandum of Findings of Fact and Conclusions of Law
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
denied this in his testimony, indicating that he advised them of the
possibility that the pain would remain and that there were other risks of
the surgery as indicated above. Dr. also testified that he advised
the that continuing with the conservative treatment of ibuprofen
and warm compresses was also an option. Claimant chose to have the
vein removal surgery and proceeded to the hospital for surgery on
03/27 /13. At the hospital, he signed a consent form prior to the surgery
that indicates his surgery was to be "Left arm vein resection" to be
performed by Dr. . The consent form recites an exhaustive list of
items that were discussed with Claimant together with another recitation
of the risks, benefits and alternative to the procedure as set forth above.
The consent also contains Claimant's agreement to proceed and bears his
signature.
The vein removal surgery was performed on 03/27 /2013 by Dr.
and the thrombosed vein was removed. The surgery involved a series of
incisions beginning at the distal or "top" side of Claimant's left wrist and
continuing along the vein to the underside of his left elbow. At a post-op
appointment with Dr. on 04/09/13, Claimant reported much
improved pain with only intermittent pain in the upper arm. On 04/22/13
Claimant called seeking an authorization for further time off work
and reporting that he continues to have pain, swelling, and numbness in
the left arm. He saw Dr. on that date and reported improved arm
pain but requested further time off work because his arm was not back to
normal. At another appointment with Dr. on 05/09/13, Claimant
was found to have a much improved left arm but he continued to report
7
Memorandum of Findings of Fact and Conclusions of Law
1 severe pain in the upper arm radiating to the elbow and down to the dorsal
2
3
4
5
6
7
8
9
10
11
12
13
left hand. Dr. ordered another ultrasound to compare to the pre
op ultrasound. This new ultrasound was again negative for the more
serious deep vein thrombosis in his left arm. Claim saw Dr. again
on 05/24/13 and was noted to be "much improved" following the use of a
wrist brace, but still complaining of elbow pam. He was ref erred to
physical therapy, which began on 06/04/13. Claimant attended physical
therapy but continued to complain of left arm pain and to obtain reports
from the doctors documenting that he should either not yet return
to work or he should be allowed to work on light duty. This continued into
October of 2013. On 12/24/13 he had a negative bone scan of his left arm
and an EMG of his left arm. The EMG findings were mild ulnar
14 demyelating neuropathy across the elbow and a mild radial sensory axonal
15 neuropathy at the wrist.
16 Claimant eventually sought treatment outside the system with
1 7 neurologist , MD. Dr. first saw Claimant on
18
19
20
21
22
23
24
25
26
27
28
04/02/14 and found neuropathy and possible RSD in his left upper
extremity. He ordered another EMG study that indicated moderate left
carpal tunnel syndrome and mild left ulnar neuropathy. Dr.
recommended a wrist splint, a change in medication, and a program of
strengthening and range-of-motion exercises.
Claimant continues to complain of pain, weakness, and numbness in his
left upper extremity. He has not returned to work as a forklift driver
since his 01/28/13 hernia surgery and eventually found part time work as
a security guard.
8
Memorandum of Findings of Fact and Conclusions of Law
1 Expert Testimony. Claimant vascular surgery expert ,MD
2 testified that Claimant's care by Dr. fell below the applicable
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
standard of care in that the vein removal surgery was not indicated in this
case. He testified that the standard of care would be conservative
treatment by way of anti-inflammatory medicine and the passage of time.
He declined to testify as to the carpal tunnel syndrome because it is not
his area of expertise. He could not say whether the nerves in Claimant's
ann were damaged by the vein removal surgery.
Defense vascular surgery expert , MD testified that Dr.
's surgery performed on Claimant was within the standard of care.
He indicated that surgery under these circumstances is within the
standard of care where the patient has ongoing complaints of pain and
does not seem to be steadily improving with conservative care. lie
indicated that offering surgery as an alternative is acceptable. He further
testified that the surgery in this case would not have affected the nerves
in the wrist and elbow that were found to have abnormalities per the EMG
studies ref erred to above.
Defense neurologist expert , MD testified that the
pattern of Claimant's symptoms, including his history of left arm problems
that pre-date the hernia surgery could be responsible for the ulnar nerve
abnormality. He likewise opined that the vein removal surgery would not
have disturbed the ulnar nerve or the medial nerve in Claimant's wrist.
Additional expert witnesses called by the parties testified concerning
damages.
9
Memorandum of Fi ndings of Fact and Conclusions o f Law
1
2
3
4
5
6
7
CONCLUSIONS OF LAW
1. Claimant Failed To Prove By A Preponderance Of The Evidence
That Claimant Did Not Give His Informed Consent To The Vein Removal
Surgery. records indicate that the risks and benefits of the vein
removal surgery were discussed with Claimant prior to the surgery,
including the risk that the surgery would not alleviate his pain. Moreover, 8
9
10
11
12
13
14
15
16
Claimant signed the detailed consent from on 03/27 /13 prior to the
surgery. That form indicates that the risks and benefits were discussed
with Claimant, that the procedure was explained to him and that his
questions, if any, were answered by staff. The form bears his
signature with the date of 03/27 /13.
2. Claimant Did Not Prove By A Preponderance Of The Evidence That
Performing The Vein Removal Surgery Fell Below The Standard Of Care.
Doctors and had directly contradictory opinions on the
17 applicable standard of care and whether Dr. breached the
18 standard by performing the vein removal surgery on Claimant. Nothing in
19 Dr. testimony on the standard of care issue was found to be more
20
21
22
23
24
25
26
27
28
persuasive than that of Dr. , and the burden of proof was therefore
not met in this regard.
3. Claimant Did Not Prove That The Vein Removal Surgery Caused
The Nerve Damage. Assuming arguendo that did not obtain
informed consent from Claimant for the vein removal surgery, or that
fell below the standard of care by performing that surgery,
Claimant nonetheless failed to prove by a preponderance of the evidence
10
Memorandum of Findings of Fact and Conclusions of Law
1 that the surgery caused his nerve damage. Both defense expert
2 and defense expert testified that anatomically speaking, the
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
surgery would not have disturbed the nerves that were found to be
compromised per the EMG studies. There was no expert evidence to
refute these opinions. In addition, Claimant's history of left arm pain and
other symptoms that pre-dated 2013 indicate that these nerve issues
were present before either the hernia surgery or the vein removal
surgery.
Damages: No discussion is necessary due to a finding of no liability.
II
11
ROBERT J. R CKMAN Arbi ator
Memorandum of Findings of Fact and Conclusions of .Law
