News: In February 2017, a 61-year-old man and well-known actor died of a stroke 11 days after undergoing surgery to replace a heart valve and repair a damaged aorta. The patient’s widow and children reached a $1 million settlement agreement with the anesthesiology group named as a co-defendant in a subsequent wrongful death lawsuit. The hospital and surgeon also are named defendants. The plaintiffs contended the patient underwent unnecessary surgery, which resulted in his death. According to the complaint, the defendants were aware the surgeon had committed malpractice during the patient’s surgery and the follow-up to the surgery, causing a severely damaging and life-threatening obstruction in the patient’s right coronary artery.
Additionally, the plaintiffs alleged the hospital knew the surgeon practiced what hospital staff characterized as “cowboy medicine,” a history of performing “borderline” surgeries, meaning surgeries that likely were not indicated. Specifically, the surgeon was known to perform aortic replacement surgeries on aortic aneurysms that did not meet clinical indication for the procedure. The hospital also was aware the surgeon was commonly referred to among the staff as “AK-47,” the complaint noted.
The surgeon recommended the surgery to the ascending aorta and the aortic root, even though the patient’s ascending aortic aneurysm was smaller than the accepted guidelines for such surgery, and even though the doctor admitted the patient’s aortic root was normal in size. Despite denying liability, given the above facts, the defendant anesthesiology group chose to settle the case.
Background: On Feb. 14, 2017, a 61-year-old man underwent surgery to replace a damaged aortic valve and repair an aortic aneurysm. The patient experienced complications during the surgery, including tachycardia, ventricular dysfunction, and a compromised right coronary artery. The next day, the patient underwent a second surgery to repair the coronary artery. The patient’s condition deteriorated over the following 10 days. On Feb. 25, the patient suffered a fatal stroke.
The patient’s surviving wife and children filed a wrongful death lawsuit against the surgeon, hospital, and anesthesia group, alleging the surgery was “unnecessary” and the defendants did not disclose the planned procedure to repair the aortic aneurysm was “high risk and unconventional,” nor that the surgeon lacked experience with the operation. They also claimed the defendant surgeon was not in the operating room when the patient began suffering the complications that led to his death 11 days later.
The plaintiffs alleged the hospital and surgeon concealed the risks of the procedure from them. They also claimed the defendants wanted to perform the unconventional operation for their own “personal and reputational benefit.”
The general anesthesia group denied its personnel caused or contributed to the patient’s death. Nonetheless, they still asked a Los Angeles judge to find the $1 million settlement offer was made in good faith. The court found the intent of the settlement was to reach an agreement that would reasonably compensate the plaintiffs and avoid exposing the defendant anesthesia group to expensive and time-consuming litigation.
What this means to you: The hospital that staffed the “cowboy” surgeon failed in its duty to protect the community from the unsavory practices of this unproctored, non-credentialed member of their medical staff. Given the fact that hospital and medical staff leadership not only were aware of his rogue behavior, but they encouraged and enabled the behavior until the inevitable occurred and a life was lost, the breach of duty and the culpability of the defendant parties is overwhelmingly apparent. This was clearly a matter that needed to be settled.
Moreover, the settling parties here wanted to be sure their settlement would hold. In certain instances, such as when multiple parties are involved, a settlement between some of the parties can ensure enhanced protection from attacks by other parties or from subsequent efforts to undermine the settlement if the judges rule it was handled in good faith. The court is authorized to determine the good faith of a settlement on the materials. If the settlement is found to be in good faith, the determination relieves the defendant from further liability on the issue of contribution or comparative negligence or fault.
Good faith settlement agreements are upheld and protected to discourage litigation and encourage compromise. In this case, the court considered these seven factors in its evaluation of the settlement offer:
- An approximation of the plaintiff’s total recovery and the defendant’s proportionate liability;
- The settlement amount;
- The allocation of settlement proceeds among the plaintiff(s);
- Recognition that a settlor will pay less in settlement than if found liable after a trial;
- The financial condition and insurance policy limits of the settling defendant;
- The existence of collusion, fraud, or tortious conduct aimed to injure the interests of non-settling defendants;
- The fact the evaluation should be made based on information available at the time of settlement.
A party challenging an application for good faith settlement determination carries the burden of establishing the settlement is unreasonable in relation to these seven factors. If the settlement is within the ballpark of the settlor’s proportionate share of liability, it is determined to be in good faith, and may bar any other joint tortfeasor or co-obligor from any future claims against the settling tortfeasor or co-obligor for indemnity.
In this case, the settlement was deemed in good faith. The settlement figure was reached during fair and equitable settlement discussions between the parties and was made on the basis of information available to all parties at the time of the settlement. There was no evidence of collusion, fraud, or tortious conduct intended to injure non-settling parties. The settlement amount did not appear grossly disproportionate to a rough approximation of the plaintiffs’ total recovery.
These factors help alleviate any disputes that would arise when determining a good faith settlement offer. This is important to determine, because a good faith settlement, as determined by the court, bars all potential claims for indemnity or contribution against the defendants. However, these issues may vary significantly by state. The reader is again strongly advised to consult with counsel experienced in the relevant jurisdiction.
Another issue in this matter is what constitutes a necessary surgery. Reasonable medical minds may differ on when a surgery is absolutely necessary, when it might be postponed in favor of trying other treatment options first, or whether it is truly elective. Such questions will invariably turn on expert testimony, and it will be important in such cases to solicit assistance and expertise from an appropriate subject matter expert early in the case to steer the matter toward the proper discovery objectives early in the case.
Relatedly, if the matter is sufficiently significant to justify the budget, it can be a best practice to consider retaining more than one expert. One can serve a consulting role, and the other would be the expert likely to testify at trial if necessary. A consulting expert who serves only as a sounding board for counsel might be kept completely confidential from the other side, such that communications and opinions adverse to the case can be kept under wraps, and other facts or theories pursued before unveiling them during litigation. In contrast, the testifying expert’s entire file may well be discoverable. This can include all the documents received from counsel as well as emails (or even text messages). Thus, increased risk is inherent in sharing with a testifying expert facts or theories in the first instance before one firmly understands how a knowledgeable and ostensibly neutral expert will react. Communicating in writing with a testifying expert about the ultimate questions in the case (here, whether a surgery was necessary) can sink the case if one does not have a good idea in advance (from the consulting expert) as to what the testifying expert is likely to think.
REFERENCE
- Decided Feb. 23, 2022, in the Superior Court of California, County of Los Angeles, Case number BC693636.
You have reached your article limit for the month. Subscribe now to access this article plus other member-only content.
- Award-winning Medical Content
- Latest Advances & Development in Medicine
- Unbiased Content