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ORANGE COUNTY (714) 434-1424

INLAND EMPIRE (951) 534-4006

TOLL FREE (866) 434-1424

ORANGE COUNTY (714) 434-1424

INLAND EMPIRE (951) 534-4006

$7,062,000: Paralyzed Military Veteran’s Auto/Med Mal Case Resolved During Jury Selection

CASE DESCRIPTION: Plaintiff entered into the intersection of Ball Road and Moody in the City of Cypress. At the same time a Bob-tail delivery truck made a left turn in front of Willie P’s car. A collision ensued. Willie P. was transported to UCI Medical Center to receive treatment. He had suffered an aortic tear and was cleared for surgery. After surgery the next day Willie P. discovered he was paralyzed. It was then that the hospital realized they had missed a spinal fracture that showed up on the previous day’s CT Scan. Plaintiff brought suit against all parties.

RESULT: $7,062,800 total settlement

On November 13, 1997, Plaintiff, Willie P., was involved in an automobile collision at the intersection of Ball Road and Moody, in the City of Cypress. A “Bob-tail” delivery truck, operated by Defendant Gilberto G., turned left in front of Willie P’s Daihatsu Charade, allegedly violating his right of way. Willie P. was unable to stop his vehicle in time and a broadside collision ensued.

Willie P. was transported from the accident scene to UCI Medical Center, which is operated by Defendant, The Regents Of The University Of California (hereinafter “Regents”). The emergency room physician ordered a series of diagnostic images, including a CT scan of the cervical spine. While in the emergency room, Willie P. was found to have a tear in his aorta. Prior to beginning the surgery to repair the aortic tear, the results of the various diagnostic images were obtained and he was “cleared” for surgery. Thereafter, Willie P. underwent thoracic surgery to correct the aortic tear. Willie P. was sent to the intensive care ward to recuperate.

The next morning (November 14, 1997), however, it was discovered that Willie P. had lost sensation below his neck. The earlier cervical films were examined and it was discovered that Willie P. had suffered a fracture at the C5-C6 level. This injury was missed when the CT scans were read the day before. Subsequently, Willie P. underwent a cervical fusion. Willie P. has never regained any function below his neck and is paralyzed at the C4-C5 level.

At the time of his injury Willie P. was 54 years old. He has been married since 1969 to his wife Plaintiff Renate P. They have one adult son. Since Willie P’s injury, Renate P. has given up her own employment and now functions as Willie P’s full time care giver.

Plaintiffs brought suit against Defendants Gilberto G. and his employer Merchants Home Delivery Service (hereinafter “MHD”), based on Gilberto G’s negligent driving. Plaintiffs also brought suit against The Regents for their failure to identify the cervical fracture on the initial CT scan. The claim against Gilberto G. and MHD contended that Gilberto G’s driving caused the incident by making an unsafe left turn in front of Mr. Pennington’s right of way. Plaintiff next argued that Defendant MHD was vicariously responsible for Gilberto G’s actions based on California PUC regulations. (At the time of this collision, Defendant Gilberto G. was operating his vehicle on behalf of Defendant Merchant’s Home Delivery as an “independent contractor” trucker.)

Regarding the cause of action against The Regents, Plaintiff contended that The Regents committed medical negligence. They were negligent in that they failed to identify the cervical fracture during the initial CT scan and failed to promptly treat the fracture upon Willie P’s admission to hospital. Also the resident that treated Plaintiff was not given proper training and back up support.

Defendants Gilberto G. and MHD contended that Willie P. was substantially and comparatively negligent for entering the intersection under unsafe conditions and unsafe speed. The Defense claimed that Willie P. was speeding and entered the intersection while the light was red, as illustrated by the fact that the vehicle next to the Plaintiff did stop and yield. Independent witnesses, however, stated that Willie P. entered the intersection on a yellow light and at a speed within the posted speed limit, even though the witnesses themselves had stopped for the light. Defendants further contended that Willie P. was not wearing his seat belt, which was the sole cause of the aortic tear and the cervical fracture. According to Defendants, had a seat belt been worn, Plaintiff would only have suffered minor injuries.

The Regents contended that it was not below the standard of care to miss the cervical fracture under the emergency conditions then occurring. Furthermore, no additional damage was done to Plaintiff by the hospital not treating Plaintiff’s spinal injury. The Defendant claims that the neck injury and resulting spinal injury had been sustained during the vehicle collision and was irreversible, and that all appropriate spinal precautions had been taken throughout the course of Plaintiff’s treatment, even though the patient was “cleared” for surgery.

With regards to damages the Defendants also contended that Plaintiff’s life span was dramatically shortened to only ten years or less. Therefore, the amount of future economic damages was lower than Plaintiffs’ estimates, which were based on a twelve to eighteen year future life span.

During the litigation phase of this lawsuit Plaintiffs cited BAJI 14.66 for the proposition that subsequent malpractice is not a defense to the original tortfeasor. Therefore, BAJI 14.66 acts as an exception to the Proposition 51 general rule of several liability for non-economic damages. This argument became especially significant once a settlement with the Regents was achieved. After the settlement the Plaintiffs sought and received a motion in limine to exclude any evidence of The Regents’ malpractice in the trial against the truck driver Defendant. The truck driver Defendant took a writ on this issue, but a hearing was not granted.

Defendants MHD and Gilberto G’s argument of several liability was left with no teeth. Therefore they were left to dispute liability and damages. They argued the seat belt defense, which if established, allowed them to argue that Willie P’s damages should be limited to those he would have received had a seat belt been worn. In essence, Defendants intended to argue that the jury should only award damages for relatively minor injuries. Plaintiffs sought and received a ruling that the seat belt defense only went to establishing a percentage of comparative negligence as to all the damages flowing from the quadriplegia, and not to the legal causation of damages.

TYPE OF CASE: Auto v. Delivery Truck; Medical Negligence; Loss of Consortium

INJURIES: Willie P. suffered an aortic tear and a Spinal fracture at the C5-C6 level. As a result of his injuries he has never regained any function below his neck, and is paralyzed at the C4-C5 level.

DATE & LOCATION OF INCIDENT: On 11/13/97 at approximately 10:15 a.m. at the intersection of Moody Street and Ball Road, Cypress, California.

PLAINTIFF’S AGE: Willie P. – 53 at time of incident
Renate P. – 57 at time of incident

OCCUPATION: Willie P. – Security guard; retired from United States Air Force after twenty years of service
Renate P. – Retail sales

PLAINTIFFS’ ATTORNEYS:
Darren O. Aitken & Wylie A. Aitken
AITKEN * AITKEN * COHN
for Plaintiffs – Willie & Renate P.

DEFENDANTS’ ATTORNEYS:
Dana Alden Fox
LYNBERG & WATKINS
For Defendant – Gilberto G. & Merchants Home Delivery Service, Inc.

Also Alan G. Saler
JONES, HIRSCH, CONNORS & BULL
For above Defendants

Douglas G. Dickson
RINOS, SHEPHARD & MARTIN
For Defendant – The Regents of The University of California

Also Marshall Silberberg
SILBERBERG & FRANZEN
For above Defendant

DEFENDANT INSURANCE CO.:  The Regents were self-insured.
Merchant’s Home Delivery & Gilberto G. were insured by a $2,000,000 primary
policy issued by KEMPER and an excess policy issued by AIG.


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