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THE STATE

UC Irvine Could Be Liable Again

University may face major legal exposure for its liver transplant program, experts say.

November 12, 2005|William Lobdell and Rebecca Trounson | Times Staff Writers

UC Irvine, which has paid millions of dollars in recent years to settle legal claims stemming from healthcare scandals, could face significant liability for the problems of its now-suspended liver transplant program, according to legal experts and attorneys involved in the previous cases.

UCI Medical Center said Thursday that it was halting liver transplants, hours after the federal government stripped the program's certification and said it was endangering its patients. In the last two years, a federal report showed, 32 UCI patients have died awaiting transplants, even as the hospital in Orange turned away scores of donated organs.

The experts interviewed Friday said they were not personally familiar with specifics of the UCI liver transplant program but suggested the university could face major legal exposure on the issue.

The university paid nearly $20 million to settle claims related to the UCI fertility clinic scandal of the mid-1990s, in which doctors stole patients' eggs and implanted them in infertile women. UCI also has paid at least $375,000 since 1999 to resolve claims stemming from its donated cadaver program.

Walter G. Koontz, a Newport Beach attorney who represented more than a dozen couples in the fertility scandal, said the case for plaintiffs in the current controversy is strengthened by the federal report that outlined deficiencies in the UCI liver transplant program.

"If the feds come in and decide to shut you down, as a general rule, that is going to give some significant teeth to civil liability," Koontz said. "It's negligence per se if the government has found that you've violated the regulations. It opens up the door for significant liability."

The state's 1975 Medical Injury Compensation Reform Act capped malpractice liability for noneconomic damages at $250,000.

But Koontz said that in the fertility cases he has won several settlements over that cap, including one for $1 million. He said he was able to show "constructive fraud" -- that the doctors, because of their specialized knowledge and expertise, should have informed their patients how the eggs and embryos were being used.

Dr. Ralph Cygan, UCI's chief executive, said hospital officials were bracing for any legal ramifications.

"I think that any time you have a situation like this, there is the potential that there is legal liability," he said. "Obviously we're evaluating the information, we'll be communicating with each and every patient [and] family about what we know and we'll just have to see how that unfolds."

Los Angeles attorney Larry Robert Feldman, who also represented plaintiffs in the fertility scandal, predicted problems for the university if it can be proved that patients awaiting liver transplants were intentionally misled about the availability of donor organs or surgeons to perform the operations.

That would allow plaintiffs or their heirs to circumvent the $250,000 cap on malpractice claims, said Feldman, who negotiated a $1.1-million settlement in 1996 in the fertility case.

"You can't represent to somebody whose life hangs in the balance a certain set of facts and not tell them what's really happening," the attorney said. "If this is true, you would have thought UCI would have learned from the last fiasco to not let people run amok because they were making a lot money for the school."

Michael Shapiro, an ethicist and law professor at USC, said the complex staffing and procedures involved in organ transplants mean that the patients must rely on the hospital, not themselves, for quality control.

"It is implicit that the transplant facility has the capacity to do transplants," Shapiro said. "The average patient, quite likely, doesn't expect its surgeon and surgical team to be affirmatively defrauding him."

Shapiro said the fact that UCI dealt with critically ill patients creates greater potential liability. "The sicker they are, the more they need the transplant and they need to know the facility cannot make immediate use of the next organ to come along," Shapiro said. "That's actionable, even if the patients are still alive."

He said plaintiffs' attorneys will likely trace organs that were turned down by UCI and given to other transplant recipients to show the livers weren't defective.

Leaders of the University of California, meanwhile, expressed deep concern at the latest problems involving one of the university's five medical schools but also urged caution while the investigation goes forward.

UC Regent Sherry L. Lansing, who has headed the regents' committee on health services for two months, said she visited UCI Medical Center two weeks ago as part of an initial tour in her new role, and was not told of any problems.

"This is obviously extremely upsetting, but I don't have all the facts yet," Lansing said. "I have the greatest respect for this institution, but I'm very, very concerned."

Lansing and others said it would be impossible, however, for members of the university's governing board to grasp the specifics of all units at the university, which includes 10 campuses and three national labs in addition to its medical centers.

"It would be very difficult for the regents to have a level of oversight necessary to understand the operations of one operating unit among many," Regent Eric Juline said. "We are ultimately responsible, but on a day-to-day basis the responsibility would fall to the management of that unit."

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