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Alvarado v. United States

February 22, 2010

LORENA S. ALVARADO, A MINOR, BY AND THROUGH HER GUARDIAN AD LITEM, LORENA ALVARADO, PLAINTIFF,
v.
UNITED STATES OF AMERICA, DEFENDANT.



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 179)

Petitioner Lorena Alvarado filed the instant motion for approval of minor's compromise on January 21, 2010. The motion was heard on February 19, 2010, before the Honorable Dennis L. Beck, United States Magistrate Judge. Steven Brewer appeared on behalf of Petitioner Lorena Alvarado. Lorena S. Alvarado, the minor Plaintiff, also appeared. Jeffrey Lodge appeared on behalf of Defendant United States of America.

BACKGROUND

Plaintiff Lorena S. Alvarado, also referred to as Stephany, is the sole minor in this action. She is 15 years old and brings this action through her Guardian ad Litem, Lorena Alvarado.

Plaintiff filed the instant medical malpractice action under the Federal Tort Claims Act on October 3, 2006. She filed an amended complaint on February 2, 2007, naming the United States as Defendant. Her claims are based on her treatment at the Darin M. Camarena Health Centers, Inc., a federally supported health center in Madera.

Specifically, Plaintiff alleges that she was treated at the Camarena Clinic from October 14, 2004, through October 22, 2004, with clear signs of appendicitis. She alleges that she was negligently and carelessly evaluated, examined, diagnosed and treated for cystitis. Plaintiff eventually received treatment at Children's Hospital of Central California ("CHCC") and developed multiple complications, including persistent abscess, pelvic scarring, Gentamicin toxicity, renal failure, hypertension and permanent hearing loss.

On May 22, 2008, the United States filed a Third Party Complaint against CHCC, John E. Dinsmore, M.D., David Hodge, M.D., and Jill Ghanbarian, FNP. The United States alleges that Plaintiff was a CHCC patient from October 22, 2004, through at least December 5, 2004. The United States alleges that Third Party Defendants acted below the standard of care by failing to perform an emergency surgical appendectomy, failing to properly prescribe, administer and monitor antibiotics, including Gentamicin, and failing to diagnose and treat Gentamicin poisoning.

On December 21, 2009, after the parties filed and responded to numerous motions in limine for a January 5, 2010, trial, the parties filed a notice of settlement.

Petitioner Lorena Alvarado filed the instant petition for approval of minor's compromise on January 23, 2010. She seeks approval for a settlement payment of $389,999.*fn1 Petitioner further requests that costs in the amount of $92,266.10 be deducted and that attorneys' fees, which are limited to 25 percent under 28 U.S.C. section 2678, be deduced from the remaining amount. After deducting $92,266.10 in costs and $74,433.23 in attorneys' fees, Plaintiff would receive a total of $223,299.67 in settlement proceeds.

DISCUSSION

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 approving the settlement or compromise.

(2) . . . The application shall disclose, among other things, the age and sex of the minor or incompetent, the nature of the causes of action to be settled or compromised, the facts and circumstances out of which the causes of action arose, including the time, place and persons involved, the manner in which the compromise amount or other consideration was determined, including such additional information as may be required to enable the Court to determine the fairness of the settlement or compromise, and, if a personal injury claim, the nature and extent of the injury with sufficient particularity to inform the Court whether the injury is temporary or permanent. If reports of physicians or other similar experts have been prepared, such reports shall be provided to the Court. The Court may also require the filing of experts' reports when none have previously been prepared or additional experts' reports if appropriate under the circumstances. Reports protected by an evidentiary privilege may be submitted in a sealed condition to be reviewed only by the Court in camera, with notice of such submission to all parties.

(c) Disclosure of Attorney's Interest. When the minor or incompetent is represented by an attorney, it shall be disclosed to the Court by whom and the terms under which the attorney was employed; whether the attorney became involved in the application at the instance of the party against whom the causes of action are asserted, directly or indirectly; whether the attorney stands in any relationship to that party; ...


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