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A question of consent

A father's lawsuit says he never OKd surgery that he blames for his son's brain damage.

April 13, 2010|Molly Hennessy-Fiske

When a doctor at Childrens Hospital of Los Angeles called in 2007 to tell Eduardo Rivas that his 6-month-old son needed surgery to repair double hernias, Rivas was not sure what he should do.

Nathan had been born four months premature. His mother, Rivas' wife, had died of breast cancer soon after his birth. Rivas had to decide on his own.

What happened next is at the root of a $19-million civil lawsuit filed by Rivas against the hospital and two of his son's doctors. Rivas, a Spanish speaker, last week told the jury hearing the case in Los Angeles County Superior Court that he never consented to surgery that he says left his son brain-damaged.

Nathan had been transferred to the hospital from Glendale Memorial Hospital the evening Rivas got the call from a doctor and a Spanish-speaking social worker saying his son needed an operation.

"She said it was just something minor, just a small, little surgery," Rivas told the jury through a court interpreter. "The only thing that could happen was an infection, and that could be treated with antibiotics."

Rivas, 43, of Tujunga said he refused consent. The next day, Nov. 16, 2007, doctors operated on Nathan.

Hospital officials contend that Rivas consented verbally. But investigators with the California Department of Public Health found the hospital could not supply any records proving that Rivas consented to the surgery, according to a report released last month.

Although Nathan was scheduled for morning surgery, doctors postponed it until that afternoon "due to inability to get consent," according to a physician's progress note cited in the state report.

A doctor attempted to get Rivas to consent to the surgery about 7 a.m., according to the state investigators' account. When Rivas refused, the doctor told him to return to the hospital later that day "for further discussion," according to nursing notes.

Rivas testified that he returned but could not reach his son's doctors by phone from the hospital lobby. A consent form completed at 9 a.m. was signed by a nurse and the surgeon, Dr. Dean Anselmo, but did not include Rivas' signature, according to the state report. Hospital spokesman Steve Rutledge said Rivas consented to the surgery in English during a phone call with Anselmo that morning that was witnessed by a nurse. Rutledge said hospital staff offered Rivas a Spanish interpreter, but he refused. Investigators found that the hospital's failure to provide a Spanish interpreter violated hospital policy.

"We feel that consent was properly obtained," Rutledge said. "There is ample documentation that Mr. Rivas verbally consented to surgery." The final state report, including the hospital's plan of correction, is expected this week.

Rivas, a roofing inspector, said he refused the surgery because he was nervous about the procedure, particularly the anesthesia. He said he was never offered a Spanish interpreter while Nathan was at the hospital.

After the surgery, Nathan, who had arrived at the hospital with a nasal breathing tube, became dependent on a ventilator and feeding tube, according to Rivas' Beverly Hills-based lawyer, Nathaniel Friedman.

Hospital officials attribute Nathan's complications to his premature birth, which left him "frail," with chronic lung disease and neurological problems, according to Rutledge.

Rivas believes the damage was caused by his son's reaction to anesthesia.

By law, if damages are awarded in the case, Medi-Cal, the state health insurance program which has paid about $913,000 for Nathan's care, must be reimbursed first.

Rivas, who also has a 10-year-old son, said Nathan's nursing care alone costs $1,100 a month. Nathan, nearly 3, has the mental capacity of a baby.

He sat in a stroller outside the family home last week, feeding and oxygen tubes dangling by his side. He grimaced, rolled his eyes and slapped his head to get his father's attention.

"I have to watch him all the time or he hits himself and pulls his lines out," Rivas said as he lifted Nathan out of the stroller and held him close. "It's his way of saying 'Don't leave me alone.' "

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molly.hennessy-fiske@latimes.com

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