http://almanacnews.com/print/story/print/2012/03/28/menlo-park-woman-wins-22m-malpractice-verdict


Almanac

News - March 28, 2012

Menlo Park woman wins $22M malpractice verdict

by Sue Dremann

A Menlo Park woman who suffered a stroke while undergoing treatment for migraines won a $22 million jury verdict March 19 in her malpractice suit against the Palo Alto Medical Foundation.

Robyn Frankel, who was 43 years old in 2006 when the treatment paralyzed her, won the verdict from the jury of six men and six women.

The verdict includes $2 million for past economic losses in earnings and past medical expenses, $14 million for future economic losses and medical care, and $6 million for pain and suffering.

The pain and suffering award would immediately be capped at $250,000, however, as required under the Medical Injury Compensation Reform Act of 1975, said Summer Woodson, one of her attorneys.

Ms. Frankel had suffered from migraines her entire life, Ms. Woodson said. She went through several non-invasive imaging procedures, such as magnetic resonance imaging.

In 2006, doctors decided to give her a cerebral angiogram. The procedure involved injecting a dye into a vein to inspect what doctors believed could be causing her headaches. But according to the lawsuit, Ms. Frankel was not told that the procedure was invasive and risky. The jury found she was not given informed consent, Ms. Woodson said.

"She had a reaction to the procedure and stroked out," she said. "Nobody talked to her about why she is having it or the risks."

Expert witnesses testified that the cerebral angiogram was not medically necessary, and it did not provide any benefit. Nothing could be seen that wasn't already visible in the non-invasive tests. Looking at the vein as a cause of her headaches was "baloney," Ms. Woodson said the experts testified.

Ms. Frankel had two small children and a lucrative career as a property manager in her family's business, Frankel Properties, prior to the stroke. She was in a coma for six weeks and woke up unable to use her right side and with limited use of her left. She requires full-time, round-the-clock care, Ms. Woodson said.

Ms. Frankel said by email that she could not speak or move for months after the procedure. "I was bedridden. I used to participate in all my children's activities in and out of school. I used to ride horses and be involved with vaulting, which is gymnastics on horseback. I can no longer do any of these activities.

"I have since been going to physical therapy, massage therapy, horse therapy, personal trainer, swim therapy, speech therapy and need 24/7 care.

"Thanks to the financial assistance from my mother and father, I was able to recover enough that I can now speak slowly, I have use of my left arm, I can stand with help, and I can sit in a wheelchair, but still need 24/7 care and need to be turned every 2 hours at night," she said.

The case was originally filed in 2008 but was dismissed in May 2010 with prejudice, which meant it could not be reopened, Ms. Woodson said.

Stanford University Medical Center, which was also a defendant, had petitioned the court for a summary judgment. Ms. Frankel's previous attorney felt he would have difficulty opposing or winning the summary judgment and dropped the case, Ms. Woodson said.

Ms. Frankel then hired David Bovino of Aspen, Colorado, and co-counsels Emison Hullverson Mitchell LLP of San Francisco. The firms were able to get the case reopened by showing there were "triable issues of fact," Ms. Woodson said.

Stanford settled the case for an undisclosed sum on Feb. 21, the first day of the trial, she said.

The jury found Palo Alto Medical was negligent in Ms. Frankel's treatment and care and that negligence was a substantial factor in causing her harm.

There aren't many medical malpractice cases in California, due to the pain and suffering cap, Ms. Woodson said. The large verdict is probably because of Ms. Frankel's young age and the long life she is expected to live with her disabilities.

Ms. Frankel's medical care costs between $300,000 and $350,000 per year, Ms. Woodson said.

Santa Clara County Superior Court Judge Carol Overton is expected to enter the final judgment on the verdict in a few weeks. Ms. Woodson said an appeal by the Medical Foundation is expected and is standard in such cases. It could be filed in about two to three months after the final judgment is entered.

Dr. Richard Slavin, CEO of the Palo Alto Medical Foundation, said in a statement March 22:

"We deeply sympathize with Ms. Frankel and her family. While we respect the jury process, the medical group is presently considering its legal options. We believe that the care provided by the Palo Alto Foundation Medical Group was appropriate. We appreciate the trust that the community has placed in us for the past 80 years to provide the best possible care for our patients. The safety and health of our patients has always been, and will continue to be, our highest priority."

Ms. Frankel said her children are now 8 and 16 years old. "I am so proud of them, as they have been by my side for the past 6 years.

"I am so grateful to my attorneys and family for their support, and I am elated with the award of $22 million. I thank the jury for their understanding of what actually occurred and the generous award, which will allow me to take care of myself and my children for many years," she said.

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