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Long Beach Memorial Medical Center v. Superior Court of Los Angeles County

March 26, 2009


ORIGINAL PROCEEDINGS in mandate. Judith A. Vander Lans, Judge. Petition granted. (Los Angeles County Super. Ct. No. NC039354).

The opinion of the court was delivered by: Aldrich, J.



This writ proceeding arises in a medical negligence action in which plaintiffs, Makya Connors, a minor, by and through her guardian ad litem Anthony Hill, and Tamara Hill, individually (together plaintiffs), reached a settlement in excess of $8 million with four defendants, including Long Beach Memorial Medical Center (the hospital) and Fastaff, Inc., the defendant-nurse‟s employer. Shortly after the settlement was placed on the record in open court, perinatologist Tamerou Asrat, M.D. and his employer, Magella Medical Group (together the physicians) settled separately with plaintiffs for $200,000, equaling less than 2 percent of the amount at issue and 10 percent of their insurance coverage. The trial court found the physicians‟ settlement was made in good faith (Code Civ. Proc., § 877.6),*fn1 thus precluding the hospital from seeking equitable indemnity from the physicians. The hospital petitioned for a writ of mandate challenging the good faith determination. We conclude that the trial court abused its discretion in finding that the settlement between the physicians and plaintiffs was in good faith. Accordingly, we grant the petition and direct the trial court to vacate that order.


1. Labor and Delivery

Hill was a high risk patient and so she was under the care of the physicians during labor and delivery. At 1:31 a.m. on February 5, 2006, Dwanda M. Trask, R.N., a non-party nurse employed by Fastaff, Inc., administered Pitocin to augment Hill‟s labor and placed the patient on an electronic fetal heart monitor. Fetal heart monitor tracings can be viewed from the patient‟s room, the nurses‟ station, and the doctors‟ lounge.

At around 4:30 a.m., the fetal heart monitor began to show abnormalities. Dr. Asrat visited the patient at 4:45 a.m. and noted that she was completely dilated, 100 percent effaced, and ready to begin "pushing." He also noted at that time that the fetal heart tracings were abnormal, but he did not check on his patient again until 8:06 a.m.

Meanwhile, Dr. Asrat was in the hospital at all relevant times. No other physicians were responsible for Hill‟s care during Dr. Asrat‟s shift from February 5 to 6, 2006. Nor were there residents checking on Hill during her labor that night. In the period between 3:00 and 7:00 a.m. on February 5, 2006, there were five patients in labor and delivery for whom Dr. Asrat was the attending obstetrical physician. Between 7:00 and 9:00 a.m., he was responsible for four such patients.

Some time between 5:11 and 5:20 a.m., Nurse Trask testified, she called Dr. Asrat to inform him that she had turned off the Pitocin and repositioned the patient, and that there were some late decelerations in the fetal heart rate. Nurse Trask reached Dr. Asrat in the doctors‟ lounge where there was a monitor showing the fetal heart monitor tracings. According to Nurse Trask, Dr. Asrat responded that he would continue to monitor the fetal heart beat pattern to see whether it resolved itself once the Pitocin was turned off.

Dr. Asrat denied having the 5:11 a.m. conversation with Nurse Trask or being told between 4:45 and 7:13 a.m. that there were repetitive late decelerations on the heart tracings. Rather, Dr. Asrat testified that had he been given the information that Nurse Trask claims to have relayed to him at 5:11 a.m., he would have "immediately" gone to evaluate the patient. Nurse Trask‟s 5:11 a.m. call was not noted in the medical records.

Nurse Trask again called Dr. Asrat in the doctors‟ lounge at 7:13 a.m. and informed him that the baby was not properly "stationed" despite the fact that the patient had been pushing for two hours. She also testified that she told Dr. Asrat that the fetal heart rate had several persistent variable decelerations and periods of late decelerations. She did not advise Dr. Asrat that the baby could not tolerate any more pushing, she explained, because he would know that, given her report and his ability to view the fetal heart tracings in the doctors‟ lounge. Dr. Asrat responded to Nurse Trask that he would make a decision within the next hour.

Admitting he received the nurse‟s 7:13 a.m. call, Dr. Asrat denied she mentioned any problems, and so he understood the tracings were "reassuring." Had he been told about the abnormal tracings, Dr. Asrat testified, he would have gone to see the patient.

At 7:23 a.m., Nurse Theresa Ann Krehbiel, R.N. took over the patient‟s care. At 8:00 a.m., the nurse coordinator reviewed the fetal tracings and requested that Dr. Asrat evaluate the patient "stat." Dr. Asrat arrived at 8:06 a.m., reviewed the fetal heart monitor tracings and ordered a "crash," or emergency, Cesarean section. Dr. Asrat denied having any information about the patient‟s condition before the 8:00 a.m. call and maintains that when Nurse Krehbiel assumed the patient‟s care, the fetal tracings were troubling, with recurrent late decelerations and slow return to the baseline, with the result that the baby should have been delivered as soon as practicable. He explained that had he been informed of the infant‟s condition at 6:40 a.m., he would have gone to the patient‟s room and may have called for a Cesarean section. The fetal heart rate tracings did not begin to be of concern until around 6:30 a.m., he ...

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