Dan Hodes Wins $5.3 Million Jury Verdict for Family of Heart-Attack Victim
By Don J. DeBenedictis
Daily Journal Staff Writer
SANTA ANA - In a rare victory, a heart-attack victim's family has won a $5.3 million verdict against a pair of Orange County doctors and a clinic.
Medical-malpractice trials are hard for plaintiffs to win in general, and that is particularly so in still-conservative Orange County, according to the lawyers on both sides of the case and other observers.
"That's the first case I've lost in Orange County," said defense attorney Jeffery W. Grass of Davis, Grass, Goldstein & Housouer in Ontario, who has been defending medical providers for more than 20 years. "It's also the largest verdict I've ever had against me." Robbins v. Southland Family Urgent Care, 04CC07443 (Orange Super. Ct., filed July 8, 2004). The winning plaintiffs' attorney, Daniel M. Hodes of Lopez, Hodes, Milman & Skikos in Newport Beach, said he believes plaintiffs win less than 20 percent of such trials in the state.
In Orange County, they win only 6.7 percent, according to figures tracked by one of the Superior Court's judges. Those figures show that 75 medical-malpractice cases went through trial in the county in 2003-05. Plaintiffs won five.
Hodes believes his win Wednesday evening for his clients may be the second-largest medical-malpractice wrongful-death jury verdict in county history. Hodes also won the largest, a $10.96 million verdict against an HMO in 1997.
The plaintiffs in the new case are the wife and two small children of Rodney Robbins, a 39-year-old Rancho Santa Margarita man who suffered fatal myocardial ischemia 40 minutes after two doctors at Southland Family Urgent Care had sent him home.
Robbins had awakened at about 4 a.m. on June 20, 2003, with chest pain, sweating and other symptoms. The pain went away, but it came back twice, according to Hodes.
Robbins went to the local urgent care facility later that morning, and the doctors, Rizwana Mohseni and Konstantinos Melahoures, put him on a treadmill for a stress test. The results were inconclusive, due primarily to a great deal of spurious information, known as "artifact," in the EKG tracings, Hodes said.
The doctors decided Robbins probably had gastroesophageal reflux disease and sent him home. Robbins left at 10 a.m. and had his heart attack at 10:40.
During the three-week trial, Hodes argued that Robbins' early-morning pain wasn't from reflux disease but unstable angina. His heart muscle wasn't getting enough blood or oxygen.
He also argued that a stress test was "absolutely contraindicated" for someone complaining of chest pain.
Grass declined to comment on the case extensively, but Hodes said the defense argued that Robbins' disease that June morning was too elusive to detect.
According to jury foreman Aaron Gold, a retired estate planner from Huntington Beach, the biggest problem in the case for the defense was the treadmill test results.
"There were so many artifacts. ... It was a very bad diagnostic tool," Gold said. "We felt in essence that they could not rule [heart problems] out, and he should have been referred to the emergency room."
In fact, one juror believed so strongly that Robbins belonged in the emergency room that Robbins should have taken himself straight there rather than to an urgent care facility. That juror voted against awarding any damages, Gold said.
The rest of the jury awarded the three plaintiffs a total of $226,564 in lost past earnings from their husband and father and $2,112,473 in lost future earnings.
They gave the plaintiffs $1 million each in noneconomic, "loss-of-society" damages. That $3 million will be cut to $250,000 by California's Medical Injury Compensation Reform Act.
Gold said he and a couple of the other jurors knew the damages would be cut but supported them, anyway. He said if all the jurors had known about the act, they might have boosted the loss-of-earnings damages.
The jury calculated the economic damages first.
"We didn't want to revisit those," Gold said.
The 1975 law has reduced medical-malpractice awards in California by about 30 percent, according to a 2004 study by the Rand Institute for Civil Justice. Nationally, malpractice verdicts have been rising somewhat since the mid-1990s, according to a study of 2001 data gathered from the 75 largest counties by the U.S. Department of Justice.
That 2004 federal study showed that medical-malpractice trials are difficult to win. Plaintiffs won only 27 percent of their malpractice trials, the study found, compared to 52 percent in all tort trials combined.
A Los Angeles lawyer on the defense side of medical-malpractice cases said the general belief in the industry is that 80 percent of people who make malpractice claims end up with nothing.
The results after trial are no better and possibly worse, several observers said. Plaintiffs' attorney David B. Baum of San Francisco's Baum & Blake estimated the defense wins at least three of four medical-malpractice trials. Baum said the trials historically are difficult because they are factually complex, saddled with the law's limits and fought hard by well-heeled insurers. Jurors also have heard the media campaign about skyrocketing malpractice insurance verdicts and rates from medical and insurance groups, he said.
Hodes speculated that jurors don't want to believe doctors make mistakes.
"It's a scary proposition for a juror to conclude that a physician is negligent," he said.
Defense attorney Grass said the jurors in this case told him they wanted to make a statement that, as a policy, chest-pain victims should be sent to the emergency room. He said he does not know yet whether the defense will ask to have a new trial or to have the verdict set aside.
