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Downey Man Brain-Damaged During Routine Surgery : Huge Payment Can't Erase Medical Tragedy

June 02, 1985|RALPH CIPRIANO | Times Staff Writer

DOWNEY — When David Berg walked into Downey Community Hospital five years ago, he looked like an advertisement for a health club.

A tan and muscular 6-foot-4, 205 pounds, Berg, then 22, had been running and working out daily with weights.

In just a month, the Downey resident was scheduled to begin his senior year at the University of South Dakota, where he was an honor student and biology major studying to become a veterinarian. In the waning days of summer vacation, Berg had planned elective surgery at the hospital to take care of a nagging groin problem. The procedure was considered so routine that his doctor told him he could expect to go camping on the Kern River two weeks after surgery.

He never made it.

These days, Berg lies in a hospital room in Inglewood, looking pale and fragile. At 125 pounds, he is so weak he can no longer sit up in bed. Heavily sedated to control muscle spasms, Berg lies flat on his back and gazes with seemingly frightened blue eyes at a world his neurologist says is only a blur to him.

Next to his bed, his tape deck, which once blasted his favorite Bruce Springsteen songs, is tuned to an easy listening station. Every six hours, the monotony is interrupted by a nurse who connects a thin plastic tube to an opening in his stomach, so that he can be fed juice or liquid food. When Berg soils his diapers, he must lie in them until a nurse comes, because he is mute and can communicate only by small gestures such as blinking his eyes.

Severe Brain Damage

Berg is the victim in a malpractice case that lawyers on both sides say is the worst they have ever seen. The case resulted in what prominent malpractice lawyers say was an unusually high out-of-court settlement last December that will amount to at least $13.8 million over a 30-year period. The settlement was made after an error in administering an anesthetic deprived Berg of oxygen for about 20 minutes and left him with severe brain damage.

The settlement calls for Downey Community Hospital, three doctors and the manufacturers of an anesthesia machine to pay a total of $5.1 million. The money was paid this year to an insurance company, which purchased annuities that will result in monthly payments for the lifetime of Berg, his family and his lawyer.

Terms of the agreement call for paying $16,666 a month to Berg's estate for his lifetime or at least 20 years. (With a built-in annual increase of 6%, the payments will amount to at least $7.3 million; if Berg lives a normal life span of 46 more years, as is expected by his doctors, the pay ments would amount to more than $45 million.) Another $10,000 a month will be paid for at least 10 years to David's parents, or a total of $1.2 million, and $14,670 a month will be paid for at least 30 years to Berg's lawyer. The lawyer, Richard Aldrich, 46, of Sherman Oaks, will receive a total of $5.3 million, according to court records.

Large malpractice settlements such as the Berg case may be a thing of the past in California. The case was settled two months before a state Supreme Court ruling that limits damages for pain and suffering in malpractice cases to $250,000, and also limits fees paid to lawyers. For instance, a judge applying the new ruling in March reduced a jury award of $5.2 million to $256,600 for a Huntington Beach man whose doctors removed his healthy left kidney instead of his cancerous right kidney. Of the award, the extra $6,600 was for medical expenses.

Beyond the multimillion-dollar settlement, however, the Berg case is primarily a tragedy for a once-promising young man and a continuing heartache for his family.

The Victim

"Davey" Berg is the youngest of three children of Byron Berg, a lawyer, and Betty Jean Berg, a public health nurse for Los Angeles County. By junior high school, David's size set him apart from his classmates, recalled brother, Brian, 28, who is two years older than David.

Mild-mannered but stubborn, David "marched to a different drummer," Brian said. David was a star basketball player in the Downey Junior Athletic League who didn't like the jock crowd at Warren High School in Downey, so he didn't go out for the team, Brian said.

"He didn't like all the cliques in high school. He knew all the long-haired freaks and at times you'd see him with the science guys and bookworms everybody else thought were weird," Brian said.

Besides his many athletic interests, which included tennis, skiing, basketball and karate, David was a good student whose main interest was science, his brother said. Brian recalled David's passion for astronomy. On clear nights, he said, David would put on his parka and sit up on the roof with his telescope, binoculars around his neck, staring at the constellations and "looking like the abominable snowman." Brian said it did not matter to his brother that his appearance would startle a neighbor out walking his dog.

"He (David) was like a constant in my life," Brian said.

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