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Aramyan v. United States

February 9, 2010

MARINA VARDANOVA ARAMYAN, AN INDIVIDUAL, ANI ARAMYAN, AN INDIVIDUAL, AND ENESSA ARAMYAN, AN INDIVIDUAL, PLAINTIFFS,
v.
UNITED STATES OF AMERICA, DEFENDANT.



The opinion of the court was delivered by: Margaret M. Morrow United States District Judge

DATED: February 8, 2010

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On January 18, 2008, plaintiffs Marina, Ani and Enessa Aramyan filed this action against the United States of America, Dr. John Hoh, Asian Pacific Health Care Venture, Inc. ("APHV") and Healthnet of California. On April 25, 2008, the United States of America was substituted as defendant for Dr. Hoh and APHV pursuant to 28 U.S.C. § 2679(d)(2). Plaintiffs filed an amended complaint on May 12, 2008. On December 11, 2008, the claims against Healthnet were dismissed pursuant to the parties' stipulation.

Plaintiffs' remaining claim for medical malpractice against the United States was tried to the court on July 28, 29 and 30, 2009. Having considered the evidence, the arguments of counsel, and the relevant law, the court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

I. FINDINGS OF FACT

A. The Aramyan Family

1. The plaintiffs in this action are Marina, Ani and Enessa Aramyan, the survivors and heirs of Arthur Aramyan, who passed away on January 19, 2006. Marina and Arthur were married in Baku, Azerbaijan. They had two children, Ani, who is now 23, and Enessa, who is now 20. In 2001, Mrs. Aramyan moved to the United States; the rest of the family followed in 2002. Mrs. Aramyan explained that the family moved to avoid discrimination against people of Armenian descent in Azerbaijan.*fn1

2. Mrs. Aramyan trained as a surgical technician in the United States, and has worked as a surgical technician for five years. Mr. Aramyan struggled to learn English and was less successful adapting to life in the United States and finding work. In Azerbaijan, Mr. Aramyan trained as a veterinarian and earned a living as a photographer. Although he was able to make some money working at a delivery business in the United States, Mrs. Aramyan's employment was the family's primary source of income.*fn2

B. Asian Pacific Health Care Venture

3. Asian Pacific Health Care Venture ("APHV") is a federal community health care center located in the Los Feliz neighborhood of Los Angeles; it primarily serves the working poor. Seventy-five percent of APHV's patients do not have insurance; 85% are monolingual non-English speakers. Although APHV's patients are primarily Asian, 15% are Hispanic. In 2006, APHV had approximately 9,000 patients. It employed seven physicians and four nurse practitioners, and had 90-100 employees overall.*fn3

4. Dr. John Hoh is APHV's medical director. He graduated from medical school at Temple University in 1983, and completed his internship and residency at Montefiore Medical Center between 1983 to 1986. In 1986, Dr. Hoh began a three year fellowship in geriatric medicine. After holding various positions in the geriatric medicine field, he became the medical director of APHV. Dr. Hoh is board certified in internal medicine.*fn4 As APHV's medical director, approximately 30% of Dr. Hoh's time is dedicated to administration and program design; 60-70% of his time is dedicated to direct primary care.*fn5

5. APHV is a member of an Independent Physician Association ("IPA") known as Health Care L.A. ("HCLA" or the "IPA").*fn6 IPAs function as intermediaries between health care providers and Health Model Organizations ("HMO's").*fn7 HMOs pay IPAs a set amount per patient assigned to the IPA per month; the IPAs use these funds to pay different doctors within the IPA to provide care for the patients.*fn8

6. Within an IPA, a patient's primary care physician is responsible for maintaining a database regarding the patient's medical history, identifying a patient's problems, and determining what treatments and tests should be performed.*fn9 The primary care physician is frequently referred to as the "gatekeeper."*fn10 Consistent with this, HCLA's procedures require that a patient who wants to see a specialist must first see a primary care physician for a referral.*fn11 Patients can only be referred to specialists who have contracted with the IPA.*fn12 The HMOs with which APHV works require that referral forms for specialists be signed by a patient's primary care physician; primary care providers are expected to see patients before making referrals and to provide documentation justifying the referral.*fn13

7. Presently, there are about 300 HCLA patients assigned to APHV as the primary care physician; of these, approximately one-third have never scheduled appointments to visit APHV.*fn14

C. Mr. Aramyan's Health Problems and Prescription for CABG Surgery

8. Mr. Aramyan suffered from heart-related problems for several years prior to his death. In 1997, he had a heart attack. Following the heart attack, an angiogram revealed that Mr. Aramyan's right coronary artery*fn15 was closing off. As a result, in 1998, doctors placed a stent in the artery.*fn16 Subsequently, Mr. Aramyan developed severe multi-vessel coronary artery disease. He had a history of hypertension,*fn17 and at the time of the events relevant to this case, also had significant atherosclerosis.*fn18

9. Mr. Aramyan smoked one pack of cigarettes a day for more than twenty years. He had begun an effort to quit smoking at the time of his death, however.*fn19

10. In 2005, Mr. Aramyan began to experience chest pain.*fn20 At the time, he had health insurance coverage through Medi-Cal. His primary care physician was Dr. Hakop Gevorkyan .*fn21

11. Dr. Gevorkyan referred Mr. Aramyan to Dr. Mesropyan, a cardiologist. Dr. Mesropyan performed various tests in August 2005.*fn22 On December 9, 2005, Mr. Aramyan had an angiogram at Glendale Adventist Medical Center.

12. The angiogram indicated an ejection fraction of 24%.*fn23 An ejection fraction is a measure of the ability of the left ventricle to pump blood to the body. A normal ejection fraction is 55-70%;*fn24 this means that the left ventricle is able push 55-70% of the blood out of the ventricle.*fn25 The angiogram also indicated considerable ischemia, or lack of blood flow to the heart.*fn26

13. After the angiogram, Dr. Nucho, a cardiothoracic surgeon, concluded that Mr. Aramyan had coronary artery disease, and that he required coronary artery bypass graft, or "CABG," surgery.*fn27 The physicians at Glendale Hospital recommended that Mr. Aramyan remain in the hospital and undergo the surgery immediately.*fn28 Mr. Aramyan left the hospital, however, after signing a form that stated he was leaving against medical advice.*fn29

14. During CABG surgery, veins are removed from a patient's legs and used to bypass blocked arteries.*fn30 The surgeon opens the patient's chest and obtains a vein from the patient's leg, using a special scope and making a small incision. This vein, known as a saphenous vein, is used to bypass the blocked coronary arteries.*fn31

D. Mr. Aramyan's Selection of Dr. Yokoyama and Change of Medical Group

15. On December 12, 2005, the Aramyans consulted Dr. Andros, a general surgeon recommended by a family friend, for a second opinion. Dr. Andros concurred that Mr. Aramyan's condition required CABG surgery, and arranged an appointment with Dr. Taro Yokoyama, a cardiothoracic surgeon with the Pacific Cardiothoracic Surgery Group.*fn32

16. Dr. Yokoyama is board certified in general surgery and thoracic surgery.*fn33 He practices for the most part at St. Vincent's Medical Center and St. Joseph's Medical Center.*fn34 He has been in practice for approximately thirty years and performs about 250 heart operations a year.*fn35

17. On December 14, 2005, Dr. Yokoyama saw Mr. Aramyan at his office for a consultation. Mrs. Aramyan's brother, Gary Azoyan, accompanied Mr. Aramyan to the appointment to translate from English to Armenian.*fn36 Dr. Yokoyama told Mr. Aramyan and Mr. Azoyan that he believed surgery was necessary.*fn37 He said the need for surgery was not urgent, but that it should be performed as soon as possible.*fn38

18. After the meeting with Dr. Yokoyama, Mr. Aramyan expressed confidence in the physician's abilities and decided that Dr. Yokoyama should perform the surgery.*fn39

19. Dr. Yokoyama's notes indicate he contemplated that the surgery, if approved, would be performed on December 19 or 26, 2005.*fn40 This was not possible, however, as Dr. Yokoyama was not a member of Mr. Aramyan's medical group. In order for Dr. Yokoyama to perform the surgery, Mr. Aramyan had to change medical groups. Mrs. Aramyan's sister-in-law, Alisa Azoyan, arranged for Mr. Aramyan to switch to a group that would permit Dr. Yokoyama to perform the surgery.*fn41

20. The change in groups became effective January 1, 2006; APHV was assigned as Mr. Aramyan's primary care provider.*fn42

21. On January 5, 2006, Dr. Yokoyama's office faxed a request for authorization for the CABG surgery to the IPA.*fn43 Normally, the IPA requires that a new patient be seen by the primary care physician to establish a relationship before it authorizes treatment by a specialist.*fn44 For reasons not clarified at trial, the IPA in this case approved the surgery on January 6, despite the fact that Mr. Aramyan had not been seen at APHV.*fn45 The IPA authorized the surgery to be performed at St. Vincent's Medical Center, rather than St. Joseph's, as originally contemplated by Dr. Yokoyama.*fn46

22. At some point, Dr. Yokoyama selected January 19, 2006 as the date for the surgery; Mrs. Yokoyama informed Mrs. Aramyan that this was the earliest date available, and Mrs. Aramyan agreed that the surgery could be performed on that date.*fn47 There was no testimony regarding the precise date on which January 19 was selected as the day for surgery. Mrs. Azoyan testified that she called Dr. Yokoyama's office in early January to find out when the surgery would be scheduled, suggesting that a date had not been selected at that time.*fn48 Mrs. Yokoyama testified that the surgery was scheduled for January 19 after Dr. Yokoyama received the IPA's authorization to perform the surgery on January 9, 2006. Although she did not provide a specific date, Mrs. Yokoyama suggested that the January 19 date was set shortly after January 9, 2006.*fn49

E. Requirements Prior to Surgery

23. In addition to obtaining the IPA's authorization for surgery, several other things had to occur before Mr. Aramyan could undergo the CABG procedure.

24. First, a variety of pre-operative laboratory tests had to be performed. These included vein mapping, a chest x-ray, an EKG, a complete blood count, a biomedical profile, typing and cross-matching, and procedures known as PTT and pro-time.*fn50

25. Vein mapping is required pre-operatively to determine whether the veins in a patient's leg are of sufficient diameter that they can be used in CABG surgery.*fn51 The procedure is typically performed by a technician in a diagnostic laboratory several days before surgery,*fn52 although it can be done in the hospital on the day of the surgery.*fn53

26. PTT and pro-time are coagulation profiles used to determine whether a patient has a tendency to bleed longer than normal, necessitating certain medications.*fn54

27. Like vein mapping, blood tests, chest x-rays, and EKG's are typically performed a few days before surgery.*fn55

28. On January 13, 2006, Dr. Yokoyama's office ordered the preoperative testing that needed to be performed prior to Mr. Aramyan's surgery on January 19.*fn56

29. By January 19, 2006, most of the tests had been completed. Vein mapping had not been done, but, as noted, could have been completed at the hospital. Plaintiffs' expert, Dr. Randolph Noble, noted after reviewing Mr. Aramyan's records that blood typing and cross-matching had not occurred. There was no specific testimony that PTT and pro-time had been completed, although it is possible that these were encompassed in, or were simply different terms for, some of the procedures that the testimony indicated had been completed: i.e., lab studies, a chemistry panel, and a complete blood count.*fn57

30. In addition to having pre-operative tests, Mr. Aramyan needed to stop taking aspirin before the surgery.*fn58

31. Most relevant in this case, it was necessary to secure the participation of a cardiologist prior to surgery. Although the parties agree that Dr. Yokoyama wanted a cardiologist involved in Mr. Aramyan's treatment in some manner, they dispute the role he intended the cardiologist to play. Defendant contends that Dr. Yokoyama envisioned that a cardiologist would see Mr. Aramyan prior to surgery and would address cardiac issues that arose during and after the operation. Plaintiffs counter that Dr. Yokoyama only wanted to identify a cardiologist who would care for Mr. Aramyan post-operatively; they maintain he did not want a preoperative consultation.

32. Testimony regarding this issue focused on a note recorded by Dr. Yokoyama after his December 14, 2006 consultation with Mr. Aramyan. In the note, Dr. Yokoyama wrote, among other things, "we need cardiologist."*fn59

33. The testimony regarding what Dr. Yokoyama intended by the notation "we need cardiologist" was conflicting.*fn60 Dr. Yokoyama explained that a cardiologist generally handles the non-surgical medical aspects of a patient's care, because the surgeon handles only the surgery.*fn61 The cardiologist follows up with the patient after surgery to deal with post-operative problems, and the same cardiologist may see the patient before surgery, although this is not necessarily the case in every situation.*fn62 Dr. Yokoyama stated that there was no rigid practice regarding pre-operative consultations with a cardiologist prior to surgery.

34. At his deposition, however, Dr. Yokoyama testified that he was referring both to pre-operative care at the hospital and post-operative care when he wrote "we need cardiologist."*fn63 He seemed to confirm this statement at trial, stating that he wanted to have a discussion before the operation with the cardiologist who was going to follow Mr. Aramyan after the surgery,*fn64 that he wanted to have a cardiologist with whom he was familiar review the case pre-operatively,*fn65 and that he envisioned the review would occur before the surgery took place.*fn66 This was consistent with Dr. Yokoyama's deposition testimony that a patient in Mr. Aramyan's position would usually see the cardiologist who was going to care for him post-operatively prior to undergoing surgery.*fn67 Nonetheless, he appeared to back away from these statements to some extent when he testified at trial that speaking with a cardiologist was merely a "formality" necessary to secure a cardiologist's participation during the post-operative period.*fn68

35. Overall, Dr. Yokoyama's testimony did not provide a clear picture as to whether he intended for Mr. Aramyan to have a pre-operative consultation with a cardiologist. Dr. Yokoyama indicated generally, however, that there was no set practice as to whether a CABG surgery patient sees a cardiologist pre-operatively.*fn69

36. Mrs. Yokoyama testified that Dr. Yokoyama's note referred only to the need for a cardiologist to follow Mr. Aramyan post-operatively.*fn70 She stated that it was not normal for a patient to be seen pre-operatively by the cardiologist who was going to care for him post-operatively. This, however, contradicted Dr. Yokoyama's deposition testimony.*fn71

37. Plaintiffs' expert Dr. Noble also expressed an opinion regarding the need for a cardiologist, as discussed in the separate section regarding his testimony below.

38. Dr. Yokoyama's notes indicate that he initially contemplated that a cardiologist named Dr. Sroujie at St. Joseph's Medical Center would participate in Mr. Aramyan's care.*fn72 This was before Mr. Aramyan switched medical groups, however. Once Mr. Aramyan switched groups, the cardiologist had to be someone contracted with the new group.*fn73

39. Before a cardiologist could perform services for Mr. Aramyan, an authorization from the IPA was required.*fn74 The role of the primary care provider in securing this authorization is to refer the patient to a cardiologist and fill out the paperwork required by the IPA.*fn75

The rules of the IPA required that Mr. Aramyan's primary care physician at APHV see him before referring him to a cardiologist for pre-operative or post-operative care.*fn76

F. Communications Between the Aramyans, APHV and Dr. Yokoyama's Office

40. Mr. Aramyan was first seen at APHV on January 18, 2006 by Dr. Pakdaman, and was seen a second time on January 19, 2006 by Dr. Hoh. On the days of these appointments, and the days preceding them, there were a variety of communications between staff at APHV and staff at Dr. Yokoyama's office. In addition, there were several communications between APHV and the ...


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