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Mistrial Declared in Malpractice Lawsuit : Boy, 8, Died in 2nd Week of Proceedings; New Trial Will Be Scheduled

October 12, 1985|JAN KLUNDER | Times Staff Writer

A mistrial was declared Friday in a medical malpractice case because the patient, an 8-year-old, brain-damaged boy, died in the second week of the trial.

The boy, Scott Thomas of Canoga Park, died while undergoing a different type of surgery than the one at issue in the malpractice case and at another hospital.

Van Nuys Superior Court Judge G. Keith Wisot ruled that the boy's death on Sept. 23 had raised too many new issues to proceed with the case. Wisot ordered attorneys for both sides back to court on Nov. 13 for a conference to select the date to begin picking a jury for a new trial.

The boy's parents, Ronald and Rebecca Thomas, have alleged that the Medical Center of Tarzana and five San Fernando Valley physicians were negligent in the June, 1982, surgery to correct their son's undescended testicle. During that routine operation, the family asserted, Scott received an overdose of anesthesia and a shortage of oxygen, causing his heart to stop and creating permanent neurological damage.

1 Doctor Was on Probation

Court records showed that one of the physicians named as a defendant, Dr. Michael Winston, the anesthesiologist assigned to the boy's case, had been placed on probation by the state medical board for purported incompetence in a 1979 operation that led to the death of a teen-age boy.

The defendants maintained that the physicians provided appropriate care, and that the cardiac arrest may have been caused by a heart defect that was present in Scott at birth.

"Maybe God is the only one who really knows what happened in this case," an attorney for one of the doctors told the jury when the trial began.

Medical experts were prepared to testify that the boy would never exceed the intellectual level of a 10-year-old, according to the Thomas family's attorney, Bruce G. Fagel.

Testimony in the trial was suspended three weeks ago because of Scott's death while undergoing heart surgery in San Francisco.

Born with a defective heart valve, Scott had been operated on when he was 3 months old to replace the malfunctioning valve with a plastic one. During a second operation when he was 2 years old, doctors installed a larger valve because he had outgrown the first, court records showed.

Scott died while undergoing surgery for a third and larger valve, Fagel said.

Sought to Avoid Confusion

Fagel said the family was prepared to resume the trial, but Wisot decided that the circumstances surrounding Scott's death would confuse the jurors who had begun to hear the evidence.

In the new trial, the defense is expected to argue that Scott's death supports their assertion that his heart may have been too weak to withstand the testicle surgery.

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