The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING MOTION FOR APPROVAL OF MINOR'S COMPROMISE (Document 44)
Plaintiff/Petitioner Jose Lopez Palomar and Petitioner Betty Ann Martinez filed the instant motion for approval of minor's compromise on January 14, 2010. After the parties agreed to hear the motion on shortened time, the motion was heard on February 5, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. Kevin Little appeared on behalf of Plaintiff/Petitioner Jose Lopez Palomar. Daniel Harralson appeared on behalf of Petitioner Betty Ann Martinez. The six minors involved in this action, Destiny Lopez, Jose Lopez Arteaga, Josefina Lopez Arteaga, Abundio Lopez Arteaga, Patricia Lopez Arteaga and Sonia Lopez Arteaga, were also present. Alyson Berg, Assistant United States Attorney, appeared on behalf of Defendant United States of America. Carey Johnson appeared on behalf of Defendant Fresno Community Hospital and Medical Center.
There are six minors involved in this action: (1) Destiny Lopez, female, age 14, through Betty Ann Martinez, her general legal guardian; (2) Jose Lopez Arteaga, male, age 11, through Jose Lopez Palomar, his father and legal representative; (3) Josefina Lopez Arteaga, female, age 9, through Jose Lopez Palomar, her father and legal representative; (4) Abundio Lopez Arteaga, male, age 7, through Jose Lopez Palomar, his father and legal representative; (5) Patricia Lopez Arteaga, female, age 6, through Jose Lopez Palomar, her father and legal representative; and (6) Sonia Lopez Arteaga, female, age 4, through Jose Lopez Palomar, her father and legal representative.
The action arises out of the death of Angela Arteaga Lopez ("Decedent"), the mother of all minor Plaintiffs, and her stillborn child, Olivia Lopez Arteaga, in May 2006. On May 23, 2006, at approximately 38 weeks pregnant, Decedent presented to Fresno Community Hospital's labor and delivery triage area with complaints of fever, abdominal cramping and pain and a sensation of decreased fetal movement. She also reported an eventful prenatal course, which included signs of serious prenatal/perinatal infection. Decedent was admitted and placed under the care of Robert Ayers, M.D. Despite being admitted for emergency conditions, Plaintiffs allege that Decedent did not receive screening that would have identified the cause of her symptoms and did not receive treatment that would have stabilized her. Decedent gave birth to a stillborn child on May 23, 2006. Decedent died on May 24, 2006, as a result of an uncontrolled infectious condition.
The minor Plaintiffs, Decedent's Estate, the Estate of Olivia Lopez Arteaga and Jose Lopez Palomar, Decedent's spouse, filed this action on May 22, 2007, under the Emergency Medical Treatment and Active Labor Act ("EMTALA").*fn1 Plaintiffs named Fresno Community Hospital and Dr. Ayers as Defendants and alleged violation of EMTALA and medical malpractice.
On November 20, 2008, Plaintiffs filed a First Amended Complaint to substitute the United States as a proper party based on the United States' contract with Dr. Ayer's clinic, Sequoia Community Health Center. The medical malpractice cause of action was amended to reflect a claim under the Federal Tort Claims Act.
On May 1, 2009, the parties stipulated to dismiss Plaintiffs' cause of action under EMTALA.
The parties filed a notice of settlement on December 14, 2009. The parties settled for the total sum of $205,000. Petitioners propose that this amount be divided according to the applicable provisions of the California Probate Code and that attorneys' fees ($51,250)*fn2 and costs ($4,398.45) be deducted proportionally.
Specifically, Petitioners propose that the $205,000 be divided as follows:
ClaimantGross RecoveryFeesCostsNet Recovery
Jose Lopez Palomar68,333.2217,083.301,444.2649,805.76
Jose Lopez Arteaga22,777.785,694.45481.4116,601.92
Josefina Lopez Arteaga22,777.785,694.45481.4116,601.92
Abundio Lopez Arteaga22,777.785,694.45481.4116,601.92
Patricia Lopez Arteaga22,777.785,694.45481.4116,601.92
Sonia Lopez Arteaga22,777.785,694.45547.1416,536.19*fn3
This Court's Local Rule 202 addresses settlements for minors and provides in pertinent part:
(b) Settlement. No claim by or against a minor or incompetent person may be settled or compromised absent an order by the Court ...