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Girl's Death to Test Malpractice Award Limits

January 24, 1999|MAURA DOLAN | TIMES LEGAL AFFAIRS WRITER

Mychelle Williams, 18 months old, died of a treatable infection that a simple blood test would have detected--a victim both of malpractice and patient dumping, a Compton jury decided.

The jury awarded Mychelle's single mother $1.35 million in damages for pain and suffering and $3,000 in economic compensation to cover the cost of Mychelle's funeral and burial. The trial judge--believing she was bound by the state's 24-year-old medical malpractice law--then slashed the award for pain and suffering to $250,000, the maximum the law allows.

Now, more than five years after her death, Mychelle's case is before the California Supreme Court, which will soon decide whether a hospital that violates the federal law against patient dumping should lose its protection against high malpractice awards.

The facts in Mychelle's case are harrowing: An ambulance picked the little girl up from her grandmother's Compton home in May 1993 and took her to Martin Luther King Jr./Drew Medical Center, the nearest hospital.

Dr. Trach Phoung Dang then gave Mychelle medication for her fever and other ailments and intravenous liquids for dehydration. He wanted to run blood tests to determine why the feverish, limp girl, who her mother said had been fine just hours earlier, was now so desperately ill. But the girl's family belonged to the Kaiser health maintenance organization, and Kaiser's Dr. Brian Thompson repeatedly told King/Drew that the tests should be done at Kaiser.

The telephone conversations between the doctors were tape-recorded by Kaiser, and according to a petition filed with the high court, Dang suggested three times that King do the tests before a transfer.

As the little girl's condition deteriorated, her mother, Dawnelle Keys, now 37, pleaded with doctors for more aggressive treatment. But the child could not be given antibiotics until after a blood test, and wasn't given the blood test because Kaiser wanted to do the tests.

After 2 1/2 hours at the hospital, the girl suffered a seizure. The hospital's response to her mother's panicky demands for help was to summon security guards to escort her out of the building. Mychelle's grandmother was permitted to remain.

By the time the toddler reached Kaiser--four hours after she arrived at King--she was near death. Her heart stopped about 20 minutes later, and she could not be revived.

The family sued, alleging that the doctors at both King/Drew and Kaiser had committed malpractice and that King/Drew should have tested the child even if Kaiser did not pay for it.

The jury found that both doctors had been negligent. It determined that King/Drew was responsible for 75% of the damages for negligence and Kaiser for 25%. Jurors also ruled that King/Drew had violated the federal anti-dumping law, known formally as the Emergency Medical Treatment and Active Labor Act.

The 1986 federal anti-dumping law prohibits hospitals from transferring or discharging patients known to have emergency conditions, regardless of the patient's ability to pay.

"The child died not because doctors didn't know what was going on with her," San Diego lawyer Kenneth M. Sigelman told the state high court this month, "but because of her insurance status."

Patient Dumping Increasing, Critics Say

As a county hospital, King treats the poor and receives reimbursement from state Medi-Cal funds. "If Mychelle was an indigent patient, she would have lived," said Jamie Court, director of the watchdog group Consumers for Quality Care, which helped argue the case before the state Supreme Court. "Only because she was an HMO patient, did she die."

The case is important because patient advocates believe that transfers of unstable patients have been growing with managed care. A nationwide survey by a nonprofit consumer group found 152 instances of patient dumping from 1994 to 1995.

In a November 1998 bulletin, the federal Health Care Financing Agency, which administers the law, warned that pressures from health maintenance organizations to get pre-approval for patients did not excuse medically dangerous transfers. Violations of the federal law can bring a hospital a fine of $50,000. In many cases, however, as in this one, potential violations are never reported.

But should violations of that law also waive the state's limit on malpractice awards? Trial lawyers and patient advocates believe so. They hope the state Supreme Court's ruling will carve a path around the malpractice lid, a limit that has been whittled away by inflation since 1975 so that it is now worth less than a third of its original value.

Pain and suffering damages are often all that is available when a child dies from medical negligence because economic damages, which the law does not limit, are based on such factors as earnings and future medical needs. Many lawyers are reluctant to take medical malpractice cases because the litigation can be costly and the awards relatively small.

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