Damaris Grubb V. United States of America

A medical malpractice case involving breach of standard of care. Our client was left severely brain damaged when the surgeon removed health brain tissue in an attempt to treat a benign condition after failing to perform the correct tests. The second surgery on our client ignored standard procedures for this kind of operation and was performed without adequate support staff being available. The resulting bleeding and brain swelling left our client profoundly disabled. The lead attorney on this case was partner Kevin F. Quinn.

Plaintiff's Medical Expert Witnesses:
Charles Wilson, M.D., Neurosurgery, San Francisco, CA
Nancy Fischbein, M.D., Neurosurgery, Stanford, CA
Kenneth Nudleman, M.D., Neurology, Santa Ana, CA
Sharon Kawai, M.D., Physiatry, Fullerton, CA
Cynthia Salorio, Ph.D., Neuropsychology, Baltimore, MD
Doreen Casuto, R.N., Life Care Planning, San Diego, CA
Calvin A. Colarusso, M.D., Psychiatry, La Jolla, CA

Defendant's Medical Expert Witnesses:
Michael Levy, M.D., Neurosurgery, San Diego, CA
Wallace Peck, M.D., Neuroradiology, Newport Beach, CA
Mark Kritchevsky, M.D., Neurology, San Diego, CA
Dominick Addario, M.D., Psychiatry, San Diego, CA
Murray Brandstater, M.D., Ph.D., Physiatry
Dean Delis, Ph.D., Neuropsychology, San Diego, CA
Susan Riddick-Grisham, R.N., Life Care Planning

Plaintiff's Technical Expert Witnesses:
Robert Hall, Ph.D., Vocational Rehabilitation, La Mesa, CA
Roberta Spoon, CPA, Economist, San Diego, CA

Defendant's Technical Expert Witnesses:
Robert Taylor, Vocational Rehabilitation
Michael Kottyan, Tricare Insurance Benefits, Colorado
Laura Fuchs Dolan, Economist

Date, Time and Place of Incident(s):
January 10-13, 2003, Balboa Naval Medical Center San Diego; San Diego, CA

Facts and Background:  
Plaintiff was a 14 year-old female experiencing several symptoms including headaches, visual defects, balance problems, and nausea. Plaintiff is the daughter of retired Marine and Army officers and, therefore, sought treatment at Balboa Naval Medical Center San Diego. After limited examinations by a general practice physician and an ophthalmologist, Plaintiff was referred to Naval neurosurgeon John P. Grossmith, M.D. for evaluation.

CT and MRI images revealed an intracranial osteolipoma; i.e., a benign mass comprised of fat and calcification that developed during fetal growth. Dr. Grossmith, however, refused to review interpretations of the CT and MRI images by neuroradiologists. Instead, Dr. Grossmith interpreted the images himself and concluded that Plaintiff’s symptoms were caused by a tumor compressing an intracranial artery. Based on this interpretation and only one physical examination, Dr. Grossmith advised the patient’s parents that stroke, blindness, or death would result if the tumor was not surgically removed.

On January 10, 2003, Dr. Grossmith attempted to surgically remove the mass, but was unable to reach the mass. Nevertheless, Dr. Grossmith extracted biopsy specimens which proved to be unremarkable. On January 13, 2003, Dr. Grossmith performed a second surgery in an attempt to remove the mass from Plaintiff’s brain. Although Dr. Grossmith was able to partially extract the suspected tumor, the procedure was disrupted by bleeding and severe swelling of the brain. During the procedure, Dr. Grossmith removed a significant portion of Plaintiff’s healthy temporal lobe. Post-operative pathological analysis confirmed that the mass was benign osteolipoma.

Plaintiff's Contentions, Allegations:
Dr. Grossmith breached the standard of care by misinterpreting pre-operative MRI images. Dr. Grossmith claimed that MRI images revealed a tumor that was impinging and compromising arterial circulation in Plaintiff’s brain. During deposition, however, Defendant’s neurosurgery acknowledged that the MRI images did not reveal any such compromise.

Dr. Grossmith fell below the standard of care by failing to administer a CT angiogram that would have confirmed or ruled-out any compromised arterial circulation. Percipient and expert witnesses described a CT angiogram as “the gold standard” in identifying impaired circulation and agreed that Dr. Grossmith fell below the standard of care by failing to perform such a study.

Dr. Grossmith violated the standard of care by concluding that the intracranial mass caused several of Plaintiff’s symptoms. During deposition, Defendant’s neurosurgery expert conceded that the osteolipoma caused only one symptom, if any.

Dr. Grossmith breached the standard of care by commencing the second surgery at 4:00 p.m. The standard of care requires such a lengthy and complex procedure to commence earlier in the day to ensure availability of additional surgical staff in the event of an unexpected complication. For example, Dr. Grossmith was unable to identify –or address– the source of an intracranial bleed that occurred during the second surgery. He therefore summoned a colleague from home after 11:00 pm; the surgery ultimately concluded after 3:00 a.m.

Injuries and/or Damages:
Before Dr. Grossmith’s treatment, Plaintiff was an honors student and excelling in an Advanced Placement curriculum. She was also a cheerleader and extensively involved in theater, church, and youth group programs. The surgeries performed by Dr. Grossmith caused a series of strokes, severe brain injury, severe cognitive impairment, severe short term memory impairment, severe executive function impairment, hormonal dysfunction, gait abnormalities, speech difficulties, visual defects, emotional lability, and depression. Because of her injuries, Plaintiff requires 24-hour supervision.

Severe brain injury; cognitive impairment; short term memory impairment; executive dysfunction; hormonal dysfunction; gait abnormalities; impaired speech; visual defects; emotional lability; depression

Defense:
Defendant contended that Dr. Grossmith exercised reasonable judgment at all times during the course of his treatment. Dr. Grossmith explained that his actions were prompted by his belief that the mass was physically impinging circulation within intracranial arteries. Yet, Defendant’s neurosurgery expert claimed that Dr. Grossmith’s surgical intervention was warranted by the risk of a malignant, cancerous tumor.

Defense:
Within his first 5 years as a neurosurgeon, Dr. Grossmith’s treatment prompted 4 medical malpractice lawsuits against the United States. In each instance, the plaintiff prevailed at trial or recovered a significant favorable settlement. Dr. Grossmith is no longer in the United States military.

California law limits general damages in a medical malpractice action to $250,000.

At mediation, Defendant offered a medical needs trust and a lump sum payment. Essentially, a portion of settlement proceeds are dedicated to annuities that fund the medical needs trust and generate income for the trust for the duration of Plaintiff’s life expectancy. Plaintiff remains eligible for Tricare benefits. Tricare and any governmental programs are Plaintiff’s primary source of benefits for health care and attendant care expenses. The medical needs trust is a secondary payment source; i.e., the trust pays any medical needs that are not covered by Tricare or Medicare. Upon Plaintiff’s death, the remaining trust corpus reverts to the United States. The lump sum payment to Plaintiff represents allowable general damages, wage loss, and future non-medical needs. The United States is able to employ these tactics to reduce the amount of any lump sum payment because the “value” of the future medical needs are annuitized and reduced to present value. Federal district court judges are increasingly embracing this structure, even post-verdict.

Specials:
Past medical expenses: none; all treatment provided by Tricare
Past lost earnings: none
Future medical expenses: $3,018,007
Future attendant care: $2,430,563
Future wage loss: $1,000,000 to $1,950,000

Settlement Amounts: $3,500,000.00

Verdict or Award: Settlement - $3,500,000.00

Other Verdict Details:
January 21, 1998. Defendant negligence , Desert hospital , 35 percent Dr. Donaldson , 35 percent

Length of Trial: Settled at mediation approximately 1 month before trial.

Jury: 3.5 day deliberation

Attorney for client: Kevin F. Quinn and Steven C. Vosseller

Attorney for defendant:
Richard Tolles, Assistant U.S. Attorney, Steven J. Poliakoff, Assistant U.S. Attorney
Office of the U.S. Attorney, 880 Front Street, Room 6293, San Diego, CA 92101, 619-557-7479

Individual Defendants: United States of America