Medical Malpractice / Wrongful Death: Defense Verdict: Doe vs Roe Plastic Surgeon (2018) (Santa Monica) and Medical Board of California
The Facts: For the first time in career, Mr. Kapp elected to represent an insured and very highly qualified plastic surgeon accused of killing his patient during an elective cosmetic procedure known as a "Brazilian Butt Life." This procedure involves first removing fat from selected areas of the body by liposuction and then transferring the fat to buttocks to enhance the size of the buttocks. This is an approved procedure associated with the Kardashian TV program that has been increasingly popular since the mid-2010's. The client, a board-certified plastic surgeon, had previously performed 1000s of similar procedures. These procedures are almost always done in approved stand-alone surgery centers.
Within a half hour of the apparently-routine completion of the operation and while still under the direct care of the anesthesiologist, the 35-year-old patient (a mother of 2 and an employee of the County of Los Angeles) suddenly "crashed". Attempts to revive her at the surgery center were unsuccessful and 911 was called.
Within minutes, the patient was in the emergency room. The ER attempted unsuccessfully to revive her, providing with tPA, a clot buster to treat a suspected pulmonary embolism (PE) and with CPR. The attempt lasted several hours, but the patient died.
An autopsy performed by the Los Angeles County Coroner claimed that the patient had over 2 liters of blood in the abdomen (there should have been none) and that this blood was the result of an "injury to the right internal iliac artery". This is a very large artery that is located very deep in the body and far from the area of the surgery; Mr. Kapp's consultants and the defendant doctor himself asserted that this injury was anatomically impossible. However, there was no other generally-accepted explanation for the injury or the blood found on autopsy and the consensus was that the surgeon "must have done something very wrong". Mr. Kapp accepted the case when it appeared that the surgeon was not being listened to and it appeared that "this was just not right" -- this highly respected and well-trained doctor was not being treated fairly, especially since the alleged cause of death seemed not to be possible.
During a very challenging 12 day trial, Mr. Kapp was able to establish that the County's 20+ year medical examiner was simply wrong, was far overworked, did not know his medicine and didn't care to learn, had failed to do a competent or caring autopsy and had acted in a dubiously ethical way in cooperating with the other side's lawyers. The jurors' overwhelming response was that the medical examiner, a public employee, should be fired.
The jurors concluded, as we argued, that this unfortunate patient had died of "pulmonary fat emboli", a rare (1 of 3000) and non-malpractice cause which has now been linked to this form of surgery.
In addition, the same physician was charged by the Medical Board of California (MBC) with multiple grounds, including this case and another "similar" case, in an effort to revoke the physician's medical license. After a full hearing before the MBC, the doctor was cleared of all charges since we established that he had literally done nothing wrong.
The Facts: This was a retrial, on damages only, of the 2015 trial listed below. This retrial also followed a reported decision of the California Court of Appeal affirming our right to a retrial on damages only. After a "take it or leave it" offer of $100,000, the first trial had resulted in a verdict of $1,045,000. This verdict is assumed to be one of the largest medical malpractice verdicts in California in 2017. It is assumed that this is the largest medical malpractice verdict for an abdominal injury in the history of the State of California.
As a result of a botched laparoscopic cholecystectomy (surgical removal of the gallbladder) which the jury at the first trial found to have been malpractice, the then 22-year-old student athlete at USC developed abdominal adhesions which we claimed were permanent, severe and disabling. Cedars contended that the only significant injury was an 8-inch vertical scar as a result of the surgery and a hospitalization which was extended from 1 day to 25 days and had thereafter returned to high level intercollegiate activities.
Specifically, we contended that the plaintiff, who was accepted to 4 regional law schools after her injury, lost the ability to attend law school and thus the ability to become an attorney. We presented evidence from a law school expert, an expert in internal medicine, and a rehabilitation/economic expert.
Cedars disputed everything. Cedars disputed the existence and/or extent of her abdominal injuries, her motivation to return to school, as well as her pre-malpractice ability to complete law school and pass the bar exam. Cedars presented expert testimony from both a gastroenterologist (stomach doctor) and an expert in medical rehabilitation. Cedars also presented expert testimony from the Executive Director of the nonprofit organization advocating for the rights of law school applicants: that expert claimed that the plaintiff was unlikely to graduate law school or pass a bar examination.
Special note: the use of the terms "Doe" or "Roe" are traditional names (e.g., "John Doe") meaning that the names of the parties are withheld for privacy reasons or to avoid unnecessary embarrassment to innocent or wrongfully accused parties.
Selected Cases where Mr. Kapp served as Defense Trial Counsel
$225,000: Boutelle vs. Downey Plaza Apts., LASC Case No. SEC 32782 (December 1982)
The Facts: Defendant oral surgeon performed arthroscopic TMJ on plaintiff RN and entered ear, causing perilymphatic fistula (into inner ear). Injuries include permanent deafness in one ear and chronic vertigo. Pursued solely on res ipsa theory as there was no credible evidence as to how such an injury could and did occur. 11-1 verdict reduced to $433,000 per MICRA. No formal demand; offer was $29,999.99 (first made 1 week prior to trial). Judgment plus interest was eventually paid after (unreported) unanimous affirmation by Court of Appeal and Supreme Court denied hearing. (Issue on appeal was supposed lack of qualification of plaintiff's expert, the former Chief of ENT at Stanford Medical School.)
$583,000: Martinez v. Humphrey, Santa Clara Superior Court (San Jose) Case No. 1-88-CV-647084 (1992)
The Facts: Defendant family practitioner treated distal radial fracture involving articular surface, admitting that he was unqualified to do so but claiming that he did so at insistence of plaintiff. Defendant also claimed that ultimate result was unavoidable. Plaintiff suffered permanent injury to wrist.
Offer, 1 week prior to trial: $29,999.99; Demand (CCP 998, 3½ years prior to trial, $150,000. Award reduced, per MICRA to $336,400. Court then added over $100,000 in pre-judgment interest and costs for final recovery of over $450,000. Unanimous verdict. Second largest medical malpractice verdict in San Joaquin County in 1993.
$638,400: Fogle vs Patel, San Joaquin Superior Court (Stockton) Case No. 207727 (1993)
$1,075,000 (including $725,000 (compensatory) and $350,000 (punitive)): Boothby vs Parker, et al., LASC Case No. SC084355 (West; tried in Malibu in 2006).
The Facts: Plaintiff, a disabled recovering alcoholic, claimed that he had an oral partnership agreement for land development with friend (Parker, then 64 years old, a 25 year veteran character actor on TV soap, Days of Our Lives). After locating and jointly purchasing a choice property for development in Lancaster, CA (which was placed in Parker's name "for convenience") and successfully negotiating with a developer, he and his alleged partner sought help of attorney at Wasserman, Comden, et al., for drafting both operating agreement for their LLC and land development contract.
Parker claimed dementia and defended on grounds of lack of capacity and sued plaintiff for statutory "elder financial abuse".
The attorney later denied being hired for the former and negotiated the land development contract only for plaintiff's partner (Parker) leaving plaintiff was no paperwork supporting his claim. Attorney defended on the grounds that plaintiff had orally consented to the arrangement and that his rights were not impaired.
Jury found unanimously in favor of plaintiff on all counts, including separate breach of fiduciary duty claims against partner and attorney, and in favor of plaintiff on the elder abuse cross-complaint. $350,000 punitive damages against Parker; none awarded against lawyers. On appeal, compensatory damages reduced to $325,000; punitive damages affirmed in total (unreported). Offers prior to trial totaled $75,000.
$2,528,570: [Names withheld due to Privacy Concerns] vs Kaiser, et al., ADR Services (5 day Binding Arbitration) Case No. 11-6162-JWH, before Hon. Joe W. Hilberman, Judge Retired (12/7/12 award date) (the largest award against Kaiser in California in 2012 by far): Binding medical malpractice (Kaiser) arbitration.
The Facts: Plaintiff, then 65 (and semi-retired; no wage loss claim), was a well-established pain management patient at out-patient Cedars-Sinai Pain Center due to intractable cervical pain after multiple fusions. Defendant Rosner, medical director, did rarely performed and assertively dangerous bilateral facet joint injections at C1/C2 after which patient developed, within 25 minutes, severe left-sided chin and cheek pain (trigeminal neuralgia?) which last 2 days. After a rash developed in roughly the same area and herpes zoster (shingles) was suspected (but never proven), the patient presented back to Cedars-Sinai 9 days post-procedure with developing paralysis due to MRI-confirmed defect starting at C2.
Over following weeks of neuro ICU and no confirmed evidence of probable etiology (actual medical cause), Markow evolved into quadriplegia and multiple prolonged hospitalizations. Defense argued that the pain management procedure was unrelated since any injury would have been immediate and catastrophic; their theory was that Markow had sustained a coincidental and (admittedly rare) spinal stroke at C2. No offers were made during course of litigation. After 18 days of evidence and 2½ days of deliberation, jury found 10-2 that Rosner was negligent and was Cedars' ostensible agent (important for collectability). Mr. Kapp was lead counsel with Arnie Goldstein and Joy Robertson of Goldstein, Gurbuz & Robertson (Encino).
Case was noteworthy for Judge Feffer's extreme hostility to plaintiffs and Mr. Kapp's cross-examination of defense neurologist (and causation expert) Andrew Woo, M.D., during which Kapp established that Woo had misrepresented the relevant anatomy during direct examination, apparently to convince the jury that the quadriplegia was unrelated to the pain injuries 9 days earlier. For a detailed nationally published account, click here.
$7,978,185.44: Markow vs Howard Rosner, M.D. and Cedars-Sinai Medical Center, LASC Case No. BC476993 (Judge Elizabeth Feffer, Dept. 39) (second largest medical malpractice verdict in California in 2014 (verdict 5/5/14) (affirmed on appeal here)
This is intended solely as a representative list of trials that Mr. Kapp has conducted over the years.
The list is not complete nor should this list be construed as a guarantee of results or that your case will have the same result. Every case is different.
The Facts: Tenant was injured when part of the ceiling in her apartment shower collapsed. Tenant claimed permanent and chronic headaches (all disputed). Statutory demand/offer: $35,000 (demand by us)/$15.000 (offered by landlord). Third largest verdict in Norwalk in 1982. Unanimous verdict. Mr. Kapp's first trial.
The Facts: Plaintiff ex-client sued lawyer claiming that his approximate $1 million commercial property loss claim was lost because the attorney failed to properly supplement an additional expert witness. Plaintiff claimed that he was a total unsophisticated client.
Mr. Kapp, representing the defendant attorney, asserted at trial that the plaintiff client had attended a year of law school, had supervised lawyers for 25 years on behalf of insurance companies, was a hyper-sophisticated business owner and had selected and hired all of the original experts. Further, Mr. Kapp asserted that the original group of experts was more than sufficient and that the plaintiff had located a redundant expert too late to supplement. Further, the plaintiff had deliberately hired the very inexperienced defendant attorney so that the plaintiff could control, and did control, the litigation.
After both of the plaintiff's hand picked experts (both a highly experienced legal malpractice attorney-expert who had himself tried over 100 cases and the "improperly designated supplemental expert" himself) testified and left the witness stand in tears after Mr. Kapp demonstrated that their testimony was complete quackery, the trial judge granted Mr. Kapp's non-suit motion (a motion terminating the case since the plaintiff had not established even a theoretical prima facie case) on 8 independent grounds. The plaintiff appealed and the non-suit was affirmed.
Legal Malpractice / Non-Suit: Doe Client vs Roe Attorney (2009) (Judge Mark Mooney, LASC)
The Facts: Represented a respected 2 attorney law firm accused of wrongful termination, battery, denial of vacation pay, by ex-clerical employee due to alleged racial and/or religious discrimination.
After Mr. Kapp presented overwhelming evidence that the plaintiff was fired due to legitimate job issues -- including well-documented chronic tardiness, poor and sloppy work and a chronically bad attitude -- jury rejected all of the plaintiff's claims. Judgment affirmed by the court of appeals in 2015.
Wrongful Termination (alleged race and religious discrimination) Defense Verdict: Doe Employee vs Roe Law Firm and Managing Partner (2013) (LASC)
The Facts: Plaintiff, a 31 year old cashier, was seen at clinic by a general surgeon, who she believed was an OB/GYN, for abnormal menstrual bleeding. On last pre-op visit (for D&C), plaintiff had a "pimple" on her labia (inflamed Bartholin's cyst?). Defendant surgeon, allegedly without plaintiff's knowledge, included excision of the "vulvar lesion (or mass)" in the surgical plan and then referred plaintiff, again allegedly without plaintiff's knowledge, to his employee/surgeon, a general surgeon, who did the procedures. As a result of the labial surgery, plaintiff has a visible deformity and developed a neuroma which is painful on intercourse.
The defense claimed consent, no negligence, no causation and that this was very treatable. No economic loss claimed. Best offers were "waiver of costs" (and "10 cents on dollar" while on appeal). 11 days of testimony; defendants represented by 3 separate law firms. Verdict on major issues was 11-1 in our favor. Verdict affirmed totally and unanimously in published decision (Quintanilla vs Dunkelman (2005) 133 Cal.App.4th 95, 34 Cal.Rptr.2d 557)
$440,000 (reduced to $310,000 per MICRA; plus 998 costs): Quintanilla vs Clinica Medica General, LASC Case No. BC274884 (Judge (later Justice) Madeline Flier, 2003).
The Facts: Plaintiff was a 22 year old senior coxswain (rower) at USC when she sustained a lacerated right iliac vein during a routine laparoscopic cholecystectomy (gall bladder removal). As a result, the surgery was immediately converted into an open laparotomy causing an unnecessary 6" vertical abdominal scar and she sustained permanent abdominal adhesions. See these partial media reports.
On motions of both sides, the trial judge granted a new trial regarding the amounts of economic and noneconomic (pain and suffering) damages. In late 2016, the court of appeal rejected, in an important decision, Cedars' efforts to derail a new trial on economic damages and enter a judgment for nothing. This lead to the 2017 retrial discussed above and a $7.6 million verdict against Cedars.
$1,045,000: Licudine vs Cedars Sinai Medical Center, LASC Case No. BC499153 (verdict June 2, 2015)
The Facts: Plaintiff (a basketball coach) sustained a "scar band" at the level of his larynx during either a routine nasal surgery (when the patient sustained a post extubation laryngospasm in the OR) or later in the post anesthesia area during a reintubation for unresolved pulmonary edema. Kaiser's records asserted that both procedures were benign. Patient required essentially annual laser procedures to reopen the airway as the scar band regrew. Kaiser asserted that the plaintiff (its member for about a year before the surgery) had some sort of preexisting condition which had caused the injury during an earlier surgery and/or that the manifest injury was caused by a previously undiagnosed, but long suspected, autoimmune process, including a pemphigoid (a very rare crusting autoimmune process).
Judge Hilberman's award calls this "one of the most difficult cases I have ever heard" after we presented evidence that the pemphigoid occurred in about 1 in 10,000,000 patients and their key expert (a highly respected Stanford laryngologist) was compelled to admit that there were no similar presentations in the literature. Present value award of loss of earning capacity of $1,704,675 was obtained using expert testimony of leading basketball figures, including the head coaches at UCLA (Ben Howland) and Long Beach State, an athletic director (University of Minnesota) and the head of the Black Coaches Association.
Kaiser's top offer was $500,000 (reportedly the largest offer it made in 2012); our demand was kept vaguely "in the millions" in view of Kaiser's offer.
$7,619,257: Licudine vs Cedars-Sinai Medical Center, LASC Case No. BC499153 (Judge David Cunningham) (verdict 6/28/17) (retrial on damages after appeal here; see public report of this verdict here) Third Largest Medical Malpractice Verdict in California 2017; 42nd Largest Professional Malpractice Case in the United States for 2017
Law Offices of Howard A. Kapp
© 2019 All Rights Reserved