ON LIABILITY - Medical Malpractice - Wrongful Death - Failure to diagnose rare congenital bowel abnormality - Binding arbitration.

Los Angeles County, California

This lawsuit arose out of the death of 12-year-old Heather O’Rourke, star of the three Poltergeist movies, TV appearances on Happy Days, Webster, and other shows. This death action was filed by Heather’s mother, alleging the defendant Kaiser (Southern California Permanente Physicians) committed malpractice in the care and treatment of Heather O’Rourke, resulting in her death.

The plaintiff contended that Heather’s small stature and weight along with anemia should have alerted Kaiser doctors to a malabsorption syndrome during her early pediatric care. In January of ________, Heather experienced abdominal pain for which she sought treatment. An x-ray at Kaiser disclosed an abnormality.

The plaintiff contended that small bowel studies should have been conducted at that time. Heather was later hospitalized at Kaiser in February of ________, when she became ill with abdominal pains from a protozoan infestation from drinking well water. A Kaiser pediatric gastroenterologist was called in as a consult and upper GI x-rays were taken in March of ________. The studies disclosed a greatly dilated loop of the small intestine caused by a partial obstruction in the distal ilium. A Kaiser pediatric GI physician made a "conclusive" diagnosis of Crohn’s disease, an inflammatory bowel condition. He treated the patient medically with Prednisone, a corticosteroid, believing that it would reduce the inflammation and eliminate the distended bowel.

Heather left California in April of ________ to film Poltergeist III in Chicago.

The Kaiser physician admitted in his deposition that he intended to follow the patient with the Chicago physician and had told the mother that Kaiser would pay for the child’s care in Chicago, and that he would visit the child on the set in Chicago. The plaintiff mother testified that Kaiser doctors assured her they would follow up with the Chicago physician and failed to warn her of the seriousness of the condition or that surgery was imminent. A letter from the defendant doctor to the mother gave the mother the names of two pediatric gastroenterologists that the child could see while in Chicago. This letter only suggested the need to consult a doctor in Chicago if a problem arose and did not mention the possibility of surgery.

The mother testified that she called a Chicago doctor from California and based on that call, took the Kaiser x-rays, but not the chart, to Chicago. The evidence established that the mother consulted the Chicago gastroenterologist, a renowned authority on inflammatory bowel disorders especially such as Crohn’s disease, who examined the child, ran x-rays and lab tests, and agreed with the diagnosis and treatment. The mother testified there were subsequent phone calls to the Chicago doctor who reordered medication and told the mother if no symptoms existed, she could wean the child off of Prednisone.

The mother located old prescription bottles that showed the medication was reordered by the physician in May and June of ________, allowing up to 12 refills (a six month supply), which the plaintiff argued indicated no urgent surgical problem.

The mother gradually weaned the child off of the medication and no follow-up exams or phone calls were made after June of ________. On Super Bowl Sunday, January 31, ________, Heather became ill with a fever, abdominal pains and vomiting. The mother claimed that she called Kaiser and that they told her the "flu" was going around and that she should bring the child in for an examination on Monday if no improvement. Heather collapsed the next day while her mother was getting her ready to go to the doctor. The mother called the paramedics, but Heather fell into cardiac arrest.

Emergency abdominal surgery disclosed a congenital stricture, rather than Crohn’s disease and Heather died.

All experts agreed that Heather’s congenital stenosis was a very rare presentation of a very rare condition and that it was not malpractice to misdiagnose the condition as Crohn’s disease. According to the expert testimony, a narrow bowel usually causes problems early in life, not for the first time at age 11, and it is rare to have few or no symptoms with sudden severe development of a life- threatening condition. The plaintiff’s experts testified that although Crohn’s disease was proper as an initial diagnosis, the defendants deviated in failing to call a surgical consult given the ongoing symptoms exhibited by the decedent, as evidenced by the need to refill the Prednisone. The plaintiff’s attorney pointed out alterations made on the patient’s chart as further indications of liability.

The defendant Kaiser physician maintained that he transferred Heather’s care to the Chicago doctor and was not responsible for Heather after that point. The defendant physician maintained that he specifically advised the mother to bring the chart and x-rays with her. The defendants maintained that the care and treatment given the decedent was within the standard and that the atypical presentation of this rare condition made diagnosis extremely difficult.

The arbitration panel made a unanimous finding of joint and several liability against the Kaiser doctors and the Chicago physician(The Chicago doctor was not sued, nor was he a party to the arbitration) with an assessment of 50% comparative negligence against the plaintiff mother. The case is scheduled for a trial on damages in July of ________. The plaintiff has tendered a demand of $________. The defendant has made no offer of settlement.