Fein v. Permanente Medical Group

695 P.2d 665 (1985)


P felt a brief pain in his chest as he was riding his bicycle to work. P noticed a similar brief pain the following day while he was jogging. Three days later, P experienced another while walking after lunch. The chest pain returned at his office that evening. The following morning P called Dr. Arlene Brandwein. P was given an appointment for 4 p.m. that afternoon, P was examined by a nurse practitioner, Cheryl Welch, who was working under the supervision of a physician-consultant, Dr. Wintrop Frantz. Nurse Welch left the room to consult with Dr. Frantz. When she returned, she advised P that she and Dr. Frantz believed his pain was due to muscle spasm and that the doctor had given him a prescription for Valium. P went home, took the Valium, and went to sleep. At 1 a.m., P awoke with severe chest pains. At the Kaiser emergency room, P was examined by Dr. Lowell Redding.  Dr. Redding ordered a chest X-ray. Dr. Redding also concluded that P was experiencing muscle spasms and gave him an injection of Demerol and a prescription for a codeine medication. P went home, but the pain became more severe and constant, and P returned to the Kaiser emergency room where he was seen by another physician, Dr. Donald Oliver. Dr. Oliver also believed that P's problem was of muscular origin, but, after administering some pain medication, he directed that an electrocardiogram (EKG) be performed. The EKG showed P was suffering from a heart attack. Following treatment without surgery, P returned to his job on a part-time basis in October 1976 and resumed full-time work in September 1977. P sued alleging that his heart condition should have been diagnosed earlier and that treatment should have been given either to prevent the heart attack or, at least, to lessen its residual effects. Dr. Swan, expert for P, testified that any patient who appears with chest pains should be given an EKG to rule out the worst possibility, a heart problem. Nurse Welch should have ordered an EKG. Dr. Redding should also have ordered an EKG when P returned, and the pain medications did not alleviate the symptoms. Treatment could have been administered which might have prevented or minimized the attack. As a result of the attack, a large portion of P's heart muscle had died, reducing life expectancy by about one-half, to about 16 or 17 years. Ds’ evidence was in sharp contrast to P’s with experts to back it up. When empaneling the jury, the judge excused all potential jurors who were members of Kaiser. The judge also instructed that the standard of care for a nurse practitioner was the same as a physician or surgeon if the nurse practitioner were examining or diagnosing a patient.  The jury found in favor of P and awarded $24,733 for wages lost by plaintiff to the time of trial, $63,000 for future medical expenses, and $700,000 for wages lost in the future as a result of the reduction in plaintiff's life expectancy. The jury awarded $500,000 for 'noneconomic damages,' to compensate for pain, suffering, inconvenience, physical impairment and other intangible damages sustained by plaintiff from the time of the injury until his death. After the verdict, D requested application of MICRA, which places a $ 250,000 limit on noneconomic damages, alters the collateral source rule, and provides for the periodic payment of damages. The court reduced the noneconomic damages to $250,000, reduced the award for past lost wages to $5,430 -- deducting $19,303 that plaintiff had already received in disability payments as compensation for such lost wages -- and ordered D to pay the first $63,000 of any future medical expenses not covered by medical insurance provided by P's employer. The court declined to order the award for future lost wages or noneconomic damages be paid as that the statute was not 'mandatory.'  Both parties appealed.