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Read Making a Killing

home / healthcare / in the media

Los Angeles Times
Jan 24, 1999

by Maura Dolan

Girl's Death to Test Malpractice Award Limits

Mychelle Williams, 18 months old, died of a treatable infection that a simple blood test would have detected--a victim both of malpractice and patient dumping, a Compton jury decided.

The jury awarded Mychelle's single mother $ 1.35 million in damages for pain and suffering and $ 3,000 in economic compensation to cover the cost of Mychelle's funeral and burial. The trial judge--believing she was bound by the state's 24-year-old medical malpractice law--then slashed the award for pain and suffering to $ 250,000, the maximum the law allows.

Now, more than five years after her death, Mychelle's case is before the California Supreme Court, which will soon decide whether a hospital that violates the federal law against patient dumping should lose its protection against high malpractice awards.

The facts in Mychelle's case are harrowing: An ambulance picked the little girl up from her grandmother's Compton home in May 1993 and took her to Martin Luther King Jr./Drew Medical Center, the nearest hospital.

Dr. Trach Phoung Dang then gave Mychelle medication for her fever and other ailments and intravenous liquids for dehydration. He wanted to run blood tests to determine why the feverish, limp girl, who her mother said had been fine just hours earlier, was now so desperately ill. But the girl's family belonged to the Kaiser health maintenance organization, and Kaiser's Dr. Brian Thompson repeatedly told King/Drew that the tests should be done at Kaiser.

The telephone conversations between the doctors were tape-recorded by Kaiser, and according to a petition filed with the high court, Dang suggested three times that King do the tests before a transfer.

As the little girl's condition deteriorated, her mother, Dawnelle Keys, now 37, pleaded with doctors for more aggressive treatment. But the child could not be given antibiotics until after a blood test, and wasn't given the blood test because Kaiser wanted to do the tests.

After 2 1/2 hours at the hospital, the girl suffered a seizure. The hospital's response to her mother's panicky demands for help was to summon security guards to escort her out of the building. Mychelle's grandmother was permitted to remain.

By the time the toddler reached Kaiser--four hours after she arrived at King--she was near death. Her heart stopped about 20 minutes later, and she could not be revived.

The family sued, alleging that the doctors at both King/Drew and Kaiser had committed malpractice and that King/Drew should have tested the child even if Kaiser did not pay for it.

The jury found that both doctors had been negligent. It determined that King/Drew was responsible for 75% of the damages for negligence and Kaiser for 25%. Jurors also ruled that King/Drew had violated the federal anti-dumping law, known formally as the Emergency Medical Treatment and Active Labor Act.

The 1986 federal anti-dumping law prohibits hospitals from transferring or discharging patients known to have emergency conditions, regardless of the patient's ability to pay.

"The child died not because doctors didn't know what was going on with her," San Diego lawyer Kenneth M. Sigelman told the state high court this month, "but because of her insurance status."

Patient Dumping Increasing, Critics Say

As a county hospital, King treats the poor and receives reimbursement from state Medi-Cal funds. "If Mychelle was an indigent patient, she would have lived," said Jamie Court, director of the watchdog group Consumers for Quality Care, which helped argue the case before the state Supreme Court. "Only because she was an HMO patient, did she die."

The case is important because patient advocates believe that transfers of unstable patients have been growing with managed care. A nationwide survey by a nonprofit consumer group found 152 instances of patient dumping from 1994 to 1995.

In a November 1998 bulletin, the federal Health Care Financing Agency, which administers the law, warned that pressures from health maintenance organizations to get pre-approval for patients did not excuse medically dangerous transfers. Violations of the federal law can bring a hospital a fine of $ 50,000. In many cases, however, as in this one, potential violations are never reported.

But should violations of that law also waive the state's limit on malpractice awards? Trial lawyers and patient advocates believe so. They hope the state Supreme Court's ruling will carve a path around the malpractice lid, a limit that has been whittled away by inflation since 1975 so that it is now worth less than a third of its original value.

Pain and suffering damages are often all that is available when a child dies from medical negligence because economic damages, which the law does not limit, are based on such factors as earnings and future medical needs. Many lawyers are reluctant to take medical malpractice cases because the litigation can be costly and the awards relatively small.

The prospect that the malpractice cap could be circumvented has alarmed the medical community. The California Medical Assn. and other medical groups filed a petition with the court that raises the specter of more complex and lengthier litigation and higher medical costs if the cap is weakened.

As the Supreme Court mulls conflicting decisions on the issue, critics of the malpractice law also are looking to the Legislature and the new governor for some relief.

Hopes are so high with the election of Gov. Gray Davis, who received generous support from trial lawyers, that one attorney confided in an interview that he would try to delay a trial in a pending medical malpractice suit in the expectation that the ceiling might be revised quickly.

For Mychelle's mother, the future depends solely on the state Supreme Court. Wearing a black leather belted coat and seated alongside her mother, Keys clutched a worn Bible as she watched the high court debate her case earlier this month. Inside the Bible was a picture of Mychelle, her hair in blue, pink and yellow barrettes.

The day Mychelle died started out like any other. Keys left their Watts home, dropped Mychelle at day care and went to her job as an instructional assistant. She picked up her daughter in the afternoon and left her briefly with her own mother to run errands.

When she returned, Mychelle was ill. She was vomiting and having trouble breathing. Keys, a trained paramedic, called 911 when the child became limp and non-responsive.

Within hours, her daughter was dead. Now, "I have put my trust in God and everything is going to go good," Keys said after the court hearing.

Despite Keys' faith, her legal position appears to face some opposition in the court. Several Supreme Court justices indicated by their questions that the complaint boiled down to a professional negligence action, which is covered by the malpractice law.

The seven-member court nevertheless seemed conflicted and critical of the position advanced by an attorney for the county.

"I think we are sailing in uncharted waters here," said Justice Kathryn Mickle Werdegar, a moderate on the generally conservative court.

Sigelman argues that the child's death was caused by two separate, although related, legal violations--malpractice by the doctors and dumping by the hospital. Because of that, he says, the family should be entitled to win separate compensation for each violation. Damages for the injury caused by dumping would not be subject to the malpractice cap.

But lawyers for Los Angeles County, which owns King/Drew, argue that the entire episode was one event--malpractice--and therefore subject to the cap. "The conduct involved was directly related to the provision of medical care. What Dang didn't do was give antibiotics, so she wasn't stabilized," said Alison Turner, the county's lawyer.

Legislators passed the state's malpractice limits after insurance rates soared in the early 1970s and doctors complained that they were having trouble getting insured. The health care industry contends that the limit is necessary to control health costs.

Two federal judges in San Francisco have ruled that the malpractice cap does not apply in cases involving patient dumping but the state Court of Appeal in Los Angeles held in Mychelle's case that it did.

The California Medical Assn., in a written petition to the court, noted that compensation for emotional suffering would increase 440% for Mychelle's family if the cap were lifted and the jury's original award reinstated. Awards of that sort would create an incentive for other plaintiffs to add patient dumping claims to malpractice complaints, the group warned.

The state Supreme Court has the final word over the interpretation of state laws, and a ruling in favor of the hospital would affect patient dumping cases throughout the state.

Dawnelle Keys said she is not pressing the case to punish King or to get more money. "I wouldn't want you to go through what I went through," said Keys, who has two sons and now lives in Victorville in San Bernardino County. "I saw my daughter die slowly."

Groping to explain herself, she added: "A lot of people are losing their loved ones the same way I lost my daughter. They slip right through."


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