In December 2004, Tenet Healthcare Corporation, the country’s second-largest hospital chain, agreed to pay $395 million to victims of unnecessary heart surgeries performed at Redding Medical Center. The treating cardiologists agreed to pay a total of $24 million. GJEL Accident Attorneys represented 186 plaintiffs out of the 769 patients or estates involved in the lawsuit.

The plaintiffs claimed that doctors at Redding Medical Center performed unnecessary cardiac catheterizations and bypass surgeries on them. The scandal erupted after FBI agents raided the medical center in October 2002 and discovered that hundreds of its surgical patients’ medical records did not support the need for surgery. Some of the plaintiffs’ complications from the surgeries included stroke, paralysis, and heart attack. Many patients now require assisted living, and 94 of the patients have died. The plaintiffs sued for fraud, battery, negligence, and elder abuse, as most of the plaintiffs ranged in age from 65 to 90. The estates of the 94 patients who died sued for wrongful death.

The amount each plaintiff received, which remains confidential, differed depending on the severity of treatment, age, and complicating factors.

As a result of its investigation by state and federal authorities for its practices in Redding, Tenet Healthcare settled with government investigators during the summer of 2004, and agreed to pay an additional $54 million fine. Tenet has since sold the hospital.

More information about the case is contained in two news stories below:

Tenet Settles Over Unnecessary Surgeries

By Erik Cummins, San Francisco Daily Journal

Tenet Healthcare Care Corp., the country’s second-largest hospital chain, agreed Tuesday to pay $395 million to settle complaints that doctors at its former facility in Redding performed unnecessary heart procedures on healthy patients.

The Texas company will establish a fund to compensate 769 plaintiffs who filed suit in Shasta County Superior Court. In re: Tenet Healthcare Cases Ill. JCCP 4301.

“This is a huge amount of money – it’s fair,” said Luke Ellis, an Orinda lawyer representing 186 former Tenet patients. “I think [Tenet] really stepped up to the plate. We could have been litigating this for decades.”

Trevor Fetter, Tenet’s president and chief executive officer, said the settlement puts an end to a sad chapter for the hospital chain and patients of the former Redding Medical Center.

“By settling all the cases at once, we put this matter behind both the plaintiffs and us, and we bring closure to this unfortunate event,” Fetter said.

Nancy Hersh, a plaintiffs personal injury lawyer with Hersh & Hersh in San Francisco, likened the outcome to recent multimillion-dollar settlements in Catholic priest molestation cases.

“But here, you have intentional injury for profit,” said Hersh, who represents plaintiffs in medical device and drug cases. “The conduct in the Redding case was quite egregious.”

Russell Reiner, a lawyer with Redding’s Reiner, Simpson, Timmons & Slaughter, represents 345 former patients of Redding Medical Center. “My clients and their families suffered horrible complications,” Reiner said. “These were completely healthy people with no heart problems.”

Ellis, a partner at Gillin, Jacobson, Ellis & Larsen, said his clients suffered complications including stroke, heart attacks, infections and paralysis. Ninety-four of the 769 plaintiffs have died.

Problems at the hospital began to surface in 2002, when a former patient tipped off the FBI that the facility had been billing the state and federal governments for unnecessary angiograms and heart bypass and valve surgeries.

At first, news of the investigation outraged residents of the region, who supported the doctors and the hospital. Many former patients and their families rallied at the Shasta County courthouse and a local mall against the allegations, Reiner said.

The doctors, he said, had been advertised by Tenet as among the country’s best, and they had performed thousands of operations during the 1990s and the early part of this decade.

“Some of our clients were at those rallies – until they found out they had been lied to by these surgeons and in no way needed the surgery,” Reiner said.

Public opinion began to change several months following an October 2002 FBI raid, when Tenet paid $54 million to settle the billing fraud investigation.

Next, the Department of Health and Human Services said it would cut federal funding for the hospital unless Tenet sold the facility. In June, Tenet completed a sale to Hospital Partners of America, Inc.

In January, Dr. Chae Hyun Moon, a cardiologist and members of the center’s former Cardiology Associates of Northern California settled with their former patients for an undisclosed amount. Moon is no longer practicing medicine.

With the latest settlement, Reiner said, “the community will see this was a horrific tragedy.”

The settlement does not resolve claims against a group of former surgeons at the Redding hospital, now called the Shasta Regional Medical Center.

“We intend on seeing the matter through the court system,” said Robert Zimmerman, a Sacramento lawyer for Dr. Fidel Realyvazquez, Jr., the doctor who led the Redding cardiovascular surgery team. “We have no intention of settling these cases.”

Realyvazquez “is a skilled and caring physician, only providing necessary and appropriate cardiovascular care,” he said. “He hopes to return to his practice.”

Ellis said the surgeons were most at fault for his clients’ injuries.

“They had the responsibility and opportunity to understand and see,” he said.

Realyvazquez has taken time off from his practice to help defend the case, Zimmerman said. The first trial against Realyvazquez and three fellow surgeons is set for July 25 in Shasta County Superior Court.

Tenet Settles Bogus Heart Surgery Claims

By Jeff Chorney, The Recorder

Tenet Healthcare Corp. has agreed to pay $395 million to settle 769 claims that doctors at its Redding hospital performed unnecessary heart surgeries.

The massive settlement – which must still be approved by 95 percent of the plaintiffs and a Shasta County judge – will end litigation against the health care giant in connection with the surgeries.

Once approved, the settlement money will immediately go into an interest-accruing fund, and plaintiffs can expect to see payouts as early as January, said Luke Ellis of Gillin, Jacobson, Ellis & Larsen of Orinda, which represents 186 of the plaintiffs.

Ellis noted that the cases were resolved relatively quickly. The questionable surgeries came to light when FBI agents raided Tenet’s Redding Medical Center in October 2002, and many of the lawsuits were filed just last year.

“You could spend years litigating these cases,” Ellis said. Since the alleged victims range in age from mid-60s to 90, he said, a protracted legal battle would have meant that many of them would “never get a chance to have [their] day in court.”

In a statement, Trevor Fetter, Tenet’s president and chief executive officer, characterized the settlement as “the fair and honorable way to conclude this very sad chapter.”

How much money each plaintiff will receive is confidential, and Ellis declined to discuss attorneys’ fees. The lawyers did not seek class action status, he said, because it’s hard to make personal injury fit into that rubric. “Every injury is different,” said Ellis. “Every injury is complicated.”

Since the Redding scandal erupted, Tenet has come under fire for its medical and business practices at other California hospitals. The company has since sold the Redding facility.

Along with the plaintiff suits, Tenet was also under investigation by state and federal authorities for its practices in Redding. It settled with government investigators over the summer for $54 million.

In addition, plaintiff lawyers sued a number of physicians in connection with the heart operations. They reached a confidential agreement with cardiologists several months ago, and litigation against four surgeons is slated to begin next summer. Ellis said there are 10 “test” cases against the surgeons. As soon as those play out, the other cases against the surgeons will likely settle.

Of the 769 plaintiffs, most are former patients, but 94 are surviving family members who filed wrongful death cases.

Ellis said he didn’t expect to have any trouble getting plaintiffs to sign on to the agreement.

“I think when people realize what this means to them,” they will agree, he said. “It will change their life in a major way.”

The procedures at issue include bypasses, valve replacements, and catheterizations. Ellis said they often created additional medical problems and caused depression in those who underwent them.

“The heart is a metaphysical part of your body. It’s not just an organ,” he said.

The lead plaintiff is Redding’s Reiner, Simpson, Timmons & Slaughter. Also representing plaintiffs are Barr & Mudford of Redding, and Moriarty & Leyendecker of Houston, Texas.

San Francisco behemoth Lieff Cabraser Heimann & Bernstein represents 10 plaintiffs. Ellis said they were also included in the settlement.

The case is In re Tenet Healthcare Ill, J.C.C.P. 4301.

J. Smith and J. Smith vs. Kent H.; Grand Auto Stores, Inc.; TBC Corporation; and Denman Tire Corporation – Hayward

PLAINTIFF ATTORNEY: Luke Ellis and Andrew Gillin

PRODUCT LIABILITY (DEFECTIVE TIRE) – INJURIES AND DEATH – MINOR

Plaintiffs in this case were Ms. J. Smith, a 35-year-old nurse’s aide, and Mr. J. Smith, a 35-year-old carpenter, of Hayward, the parents of S. Smith, four-years-old at the time of her death.

In September, plaintiff’s mother was injured and her daughter suffered fatal injuries at the time of the car accident. H’s left front tire blew out and his vehicle swerved to the left, crossed a raised median strip, and crashed head-on into plaintiff mother’s auto.

Defendant driver was driving a Chevrolet Blazer with oversized tires and suspension lifts in the front and rear, so that the Blazer was raised nine inches above its normal center of gravity. A previous owner of the vehicle purchased the tires from defendant Grand Auto two years before the subject accident. Defendant Denman Tire of Warren, Ohio, manufactured the tires and defendant TBC Corporation of Memphis, Tennessee, distributed them.

Plaintiff father sued for loss of consortium. Plaintiff mother sued for her own injuries and Dillon v. Legg emotional distress, and both plaintiffs sued for the wrongful death of their daughter.

Plaintiffs contended that the automotive defendants designed, manufactured, distributed, and sold a defective tire; that no vehicle manufacturer recommended these monster tires, which could only be used on highly modified vehicles, for use of any vehicle; that the subject was stamped with a recommended inflation pressure of 45 pounds per square inch (PSI), while the guidelines of the Tire and Rim Association recommended no more than 30 PSI for the size and category of the subject tire; and that the 50% over inflation of the tire, combined with its history of off-road use, made it dangerously rupture prone.

Experts for both plaintiffs and defendants agreed that the defective tire suffered rupture damage sometime before the night of the actual blowout.

During discovery, plaintiffs obtained a 10-year-old memorandum signed by defendant distributor’s president and sent to tire distributors, including Grand Auto, stating that the use of a tire size not recommended by a vehicle manufacturer could lead to instability of the vehicle and possible accidents.

Plaintiffs did extensive testing of modified and unmodified vehicles to determine how such tires affected loss of control after a blowout, but a modified vehicle with the subject tires could not be controlled. Plaintiffs also obtained a court order allowing them to close the roadway at the accident scene to film a nighttime recreation of the car accident.

Automotive defendants contended that the use of the subject tires was safe and proper; that the 45-PSI recommended air pressure stamped on the tire was proper and would not lead to tire failure; that the guidelines of the Tire and Rim Association were only recommendations; and that the subject accident was due to defendant driver’s failure to maintain his vehicle properly.

INJURIES: Mrs. Smith – Plaintiff suffered a fractured femur and patella as well as Dillon v. Legg emotional distress. Mr. Smith – Plaintiff claimed loss of consortium and emotional distress.

SPECIALS: Mrs. Smith – Medical $54,630. Wage Loss $26,208.
Sencera Smith – Medical and Burial $26,360.

RESULT: The case settled for a structure with a lifetime payout of $10,800,000; present cash value $4,200,000).

$10.6 Million Settlement – Wrongful Death

by Michael Taylor

Attorneys agreed yesterday to a $10.6 million settlement of a lawsuit over a car crash in which a 4-year-old girl died while her seriously injured mother lay helplessly pinned in the same car, trying to calm her dying daughter.

The settlement award went to Judy and Joe Smith, a Hayward couple whose daughter Sencera was killed in September, when a Chevrolet Blazer driven by Kent Haskovec blew one of its huge, over-sized tires and crashed into the Smiths’ Ford Pinto, demolishing it.

According to Berkeley attorney Luke Ellis, who represented the Smith family, the three-foot-tall tire was mislabeled and “could not be used on any vehicle without first making dangerous modifications – raising the car’s center of gravity about 30 percent, rendering the car highly unstable.”

Ellis reached the settlement with Denman Tire Corp., of Warren, Ohio, the firm that made the tire; Tire and Battery Corp., of Memphis, Tenn.; and Grand Auto, the auto supply chain that sold it.

Hugh Doucette, assistant to Denman’s president, defended the company’s product and said “it’s one of the best on the market. And it’s safe, if not misused.”

Alameda County Superior Court Judge Richard Hodge, who oversaw the settlement, said that “what made this case unusual is that the parent was confined in the car while the child was dying, and experienced the agonies that the child experienced.”

Ellis said the accident happened when the two vehicles were each traveling at about 40 miles per hour on Mission Boulevard in Hayward.

The Blazer began to shimmy and then its left-front tire blew out. Haskovec lost control and collided head-on with the Smith car, the lawyer said.

Judy Smith was knocked unconscious. When she came around, she said later in a deposition, “it was dark and I was calling for Sencera to answer me, and I was telling her that it was OK, that I was there, for her not to be afraid, and that I was calling out to her: ‘Sencera, please answer me. Sencera, this is Mom. This is Mommy. Please answer. And… she wouldn’t answer me. I reached out with my hand, as much as I could, and it was so dark I couldn’t find her.”

The girl was crushed when the Blazer hit her mother’s car and she died two days later.

$90 Million Settlement – Explosion Accident

Pipeline Explosion Cases settle for over $90 million dollars; GJEL client receives largest single death award of $10.65 Million.

On November 9, one of the most tragic industrial accidents in California history occurred when a backhoe punctured an underground fuel pipeline causing an explosion and fireball that burned for nearly a week. The explosion killed 5 workers and seriously injured a number of others, as well as causing property and equipment damage. About twenty separate lawsuits were filed in Contra Costa County and were coordinated by the State Judicial Council into one proceeding entitled the “Gas Pipeline Explosion Cases”.

GJEL was appointed by the Court to the Plaintiffs’ Discovery Committee which was responsible for litigating the coordinated action on behalf of all 20 cases. Ultimately, over $90 Million dollars was paid by a number of defendants. GJEL attorneys Luke Ellis and Jim Larsen represented the family of the construction foreman, whose family received the largest single wrongful death award totaling $10.65 Million. This award represents the largest settlement or verdict for a wrongful death in the history of Contra Costa County.

The accident occurred on South Broadway Street in Walnut Creek during the construction of a major water pipeline extension project undertaken by EBMUD. The general location of the underground gas pipeline was known, however it was not marked on the ground surface or properly located prior to construction. The Defendants included EBMUD; Carollo and CDM, the design engineers hired by EBMUD; Kinder Morgan, the owner and operator of the underground gas pipeline that was punctured; Comforce Technical Services, an inspection contractor working for Kinder Morgan; and MCI Inc, the excavation contractor that was digging, trenching and installing the water pipeline for EBMUD.

Over 100,000 documents were produced and about 40 depositions were taken. Additionally, independent investigations were conducted by CAL/OSHA as well as The California State Fire Marshall, Division of Pipeline Safety.

The defendants tried to contend that our client, as foreman of the MCI construction crew, was comparatively at fault for the accident since he had access to the plans which revealed the general location of the underground gas pipeline; he was directing the trenching crew at the moment of the puncture; and his company was responsible for determining the exact location of the underground pipeline before trenching in the area.

The deposition testimony revealed that at the time the gas pipeline was struck, our client ran towards the workers in the trench to warn them. Moments later, he was engulfed by the explosion and fire. He is survived by his wife and two adult children who were the plaintiffs in the lawsuit.

by Jahna Berry
THE RECORDER

The settlement checks are in the mail.

On Friday, Sulzer Orthopedics Inc., the company that was mired in national litigation over thousands of recalled hip and knee implants, approved a $1 billion settlement. The announcement means that many patients and lawyers will begin to get payments from Sulzer some time before the end of the year, a lawyer said.

Typically, a person who had one surgery to replace a bad implant would get $260,000, plus medical expenses. His or her attorney would get more than $40,000 in fees out of the patients’ gross award.

As the litigation neared its conclusion there was widespread fear that the deal would fall apart if many of the rank and file plaintiffs decided to try their luck in trial. Lead plaintiff attorneys warned that too many opt-outs would force the company under — narrowing the chance that all patients would be compensated.

“It was a real nail-biter,” said Orinda attorney Luke Ellis (Gillin, Jacobson, Ellis & Larsen), who represented 35 plaintiffs. “It went down to the wire.”

In fact, at one point 132 plaintiffs opted out; 35 were patients with serious claims who could have waged deal-busting legal battles. Lawyers from the plaintiffs team worked the phones and whittled that number from 35 to 16.

A little more than 3,000 people so far have had surgery to replace the defective hip and knee implants. Sulzer has said that about 4,000 people will be covered by the agreement. Not all patients who got the implants will develop problems, and some implant recipients are medically unable to undergo surgery.

In the upcoming months, U.S. District Judge Kathleen O’Malley also will decide which plaintiffs lawyers will share in the $50 million fee award for lawyers who played a big role in the settlement.

PLAINTIFF ATTORNEY: Gillin, Jacobson, Ellis and Larsen, Orinda, by Luke Ellis and Andrew R. Gillin

CONSTRUCTION ACCIDENT – FALL FROM PLATFORM

Plaintiff, a 21-year-old untrained construction helper, was injured while she was standing on a platform which was ten feet off the ground. Plaintiff stepped off the end of the platform where several feet of decking were missing. The plaintiff was paralyzed, diagnosed with C-6 quadriplegia.

Plaintiff contended that defendant companies maintained the decking in a defective and dangerous condition in that the deck was shortened and missing several feet of planking.

Defendants contended that plaintiff was not wearing fall protection equipment; that she was inattentive and comparatively at fault; and that she was an untrained helper who was specifically told not to be on the decking.

INJURIES: C-6 quadriplegia.

SPECIALS: Not reported.

RESULT: The case settled before trial for $6,975,000.00 cash.

Jury says Hayward company is responsible for accident that left teen seriously injured
by Ben Charny

HAYWARD – A jury awarded a Dublin couple $6.5 million Tuesday, to be paid by a Hayward construction company, for an automobile accident that permanently injured their 16-year-old son.

“It’s been a long, long three years,” said Marshall Hickman, stepfather of Todd Andrews, who suffered major injuries in the accident on North Mines Road in Livermore.

After two days of deliberations, a jury found that Redgwick Construction Co. caused the accident.

Jurors ruled that the company, hired by the city of Livermore to repair the street, inadvertently left a mound of dirt in the middle of the roadway.

The car Andrews was driving near Charlotte Way struck the dirt mound and careened into a divider. It rolled three times before coming to a stop.

Andrews, who recently turned 19, is in a lifetime care facility in Texas, Hickman said.

After 2½ days of deliberations, a jury awarded the Hickmans $5.746 million in economic damages and $800,000 in non-economic damages.

Representatives for the company had no comment Tuesday.

Luke Ellis, who represented Marshall and Darlene Hickman in the lawsuit, said the roadway “had every violation there was,” including the mound of dirt left by Redgwick Construction.

“There were no lights, no warning signs about road construction – nothing,” Ellis said.

The city of Livermore has since fixed the roadway, Ellis said.

Ellis, of the Orinda law firm Gillin, Jacobson, Ellis & Larsen, asked the jury to award between $4 million and $6 million, the estimated cost of medical care for Andrews.

One of the major issues during the three-week trial was whether Andrews, who was found to have a .03 blood-alcohol level, was responsible for the accident.

As part of the verdict, the jury did find that Andrews was responsible for 30 percent of the accident.

The panel also found that the city of Livermore, which hired the construction company, was responsible for 30 percent of the accident.

The general contractor on the project, McBail Co., was found to be responsible for 23 percent of the accident. The jury also found that engineering company, Associated Professions Inc. was responsible for 15 percent of the accident, according to the jury verdict.

McBail, Associated Professions and the city of Livermore settled out of court in the case for an estimated $2.4 million, Ellis said. He could not provide a breakdown of the payments.

There will be a hearing later this month to determine whether the Hayward construction company should pay all of the settlement or just its percentage of fault as found by the jury, which was 2 percent.

by Rick Hanig, The Recorder

A class action filed alleging that Contra Costa County’s Roger’s Funeral Home Inc. and its subsidiaries mishandled dead bodies has settled to the tune of $4 million- all of the company’s collectable assets.

“We’ve recovered 100 percent of the proceeds that might be available,” said Randall Aiman-Smith of McPhee & Aiman-Smith in Oakland, which represented the plaintiffs along with the Law Office of Richard Brown in Alamo; Gillan, Jacobson, Ellis & Larsen in Orinda; and the Law office of Robert Goldstein in Oakland.

The suit, Westman v. Rogers Family Funeral Home Inc. C. 98-03165, alleged that the funeral home company failed to properly store bodies awaiting cremation and to properly identify bodies, and at times provided families with the wrong cremated remains.

Although Judge David Flinn of the Contra Costa Superior Court gave the settlement his approval on Dec. 8, Aiman-Smith said the plaintiffs’ legal team held off going public with the decision until this week to give themselves enough time to properly reach as many potential claimants as possible.

“If we had made a big splash on Dec. 8, they would have got the information piecemeal,” said Aiman-Smith.”

Since Flinn gave the settlement preliminary approval, the plaintiffs’ attorneys have launched a Web site where potential claimants can see if there loved one is one of the approximately 400 deceased the funeral company handled between Feb. 15, 1997, and Feb. 15, 1999, the period covered by the suit.

They also have sent out a mass mailing and tried to get the word out via other means as well.

Aiman-Smith said the plaintiffs’ attorneys fees compromise approximately 25 percent of the total settlement.

By settling, the defendants should be in the clear against further legal action filed against them. The deal also allows them to not admit any wrongdoing.

In August 1998, the California Department of Consumer Affairs settled with Christopher and Laurel Rogers over allegations of gross misconduct in the fiver funeral homes the couple owned. Among the state’s claims, the department said the defendants delivered the wrong cremated remains to the families in six instances, let some bodies decompose before cremating them, and abandoned 10 bodies in two vans parked outside one of their funeral parlors.

The state stripped the couple of their funeral and cemetery licenses. No fine was levied again the Rogers but should either of them ever apply to be licensed again, they’ll have to pay in excess of $30,000 to reimburse the department for investigation and enforcement costs.

A Fremont woman has accepted a $3.9 million out-of-court settlement from the maker of a glass container that shattered four years ago, pouring acid down her leg.

The woman, Annette Montano, 23, was working at the Fairchild Camera and Instrument plant in Mountain View when the accident took place, according to her attorney, Luke Ellis of Orinda.

The sulfuric acid was used to etch circuitry in the manufacturing of semiconductor chips and wafers, Ellis said.

“She picked up two bottles and one of them just disintegrated,” the lawyer said.

Montano spent 45 days in the hospital and underwent three skin grafts, but her right leg still is scarred severely, Ellis said.

Ellis’ law firm, Gillin, Jacobson, Ellis & Larsen of Orinda, filed suit in Santa Clara County Superior Court, contending the container manufacturer, Allied Chemical Corp. of Owens, Ill., was responsible for the injuries.

The suit contended that had Allied Chemical spent 50 cents more and coated the $10 containers with plastic, a broken container would have been sufficiently leak-resistant so that Montano would not have been scarred.

“The technology was available at the time the container was made,” Ellis said. “We had evidence that there were numerous cases of shattered containers and Allied knew of these cases but continued to manufacture the uncoated containers.”

The settlement calls for immediate payment of $390,000 to Montano, $2.6 million more in monthly payments beginning at $2000 a month and increasing every five years to $5000 monthly in 25 years, and periodic lump-sum payments totaling an additional $1 million over the next 40 years, according to Ellis.