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Malpractice Case Limited to Negligence Issue : Court: Judge's ruling is setback for lawyers contesting Simi woman's death in trial touted as test of HMO system.


SIMI VALLEY — Attorneys contesting a Simi Valley woman's death in a medical malpractice trial, heralded as a landmark test of the managed health-care system, suffered a major setback this week when a judge restricted the key issue to a question of simple negligence, a court official disclosed Thursday.

The disclosure came after a day of closing arguments and only after reporters began asking questions late in the afternoon when it became apparent that attorneys would not be arguing the issue, which had been debated--vehemently at times--throughout the four-week trial.

Ventura County Superior Court Judge Ken Riley had issued a gag order during the trial and attorneys on both sides were forbidden to discuss the latest development. Riley gave no reason for the gag order.

The ruling was made public by Riley's clerk, who refused to discuss the matter further.

The ruling was made public hours before the case was scheduled to go to the jury for deliberations. Riley ruled that attorney Mark Hiepler failed to prove that two Simi Valley doctors refused to send an ailing patient to a specialist because they feared it would cut into profits.

Hiepler is suing Simi Valley doctors Elvin Gaines and Dan Engeberg for medical malpractice on behalf of Dave Ching and his 5-year-old son, Justin. Ching contends that the doctors negligently failed to diagnose his wife's cancer in time to save her life. Joyce Ching, 35, died of colon cancer last year.

Hiepler had promised to put the health maintenance organization system of capitation on trial along with the two doctors, who he said were motivated by greed in withholding specialized treatment from Ching. Capitation pays physicians a set monthly amount for each HMO patient covered and offers financial incentives to doctors who hold down expenses and cut back on the number of patients they refer to expensive specialists.

On Wednesday Riley sided with defense attorneys when he ruled that the case was nothing more than a medical malpractice suit. But the judge declined to tell the jury of his decision. The jury is scheduled to begin deliberations Monday. Hiepler did make one allusion to capitation when he told the jury that the "loud clamor of the defendants' assembly line practice of medicine blocked out the signals," of Joyce Ching's cancer and led to a deadly delay in a proper diagnosis.

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