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Aidan Ming-Ho Leung, A Minor, Etc v. Verdugo Hills Hospital

March 23, 2011


APPEAL from a judgment of the Superior Court of Los Angeles County, Laura A. Matz, Judge. (Los Angeles County Super. Ct. No. BC343985)

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


Reversed in part and Affirmed in part.

Six days after birth, plaintiff Aidan Ming-Ho Leung suffered irreversible brain damage caused by "kernicterus," a condition that results when an infant's level of "bilirubin" (a waste product of red blood cells which causes jaundice) becomes toxic. Through his guardian ad litem (his mother, Nancy Leung), Aidan sued his pediatrician, Dr. Steven Wayne Nishibayashi, and his professional corporation, Dr. Steven Wayne Nishibayashi, M.D., Inc., alleging that Dr. Nishibayashi was negligent in his care and treatment. Aidan also sued the hospital at which he was born, Verdugo Hills Hospital (the Hospital), alleging that the Hospital was negligent for, inter alia, failing to provide his parents with adequate education on neonatal jaundice and kernicterus, and failing to implement policies to reduce the risk of kernicterus in newborns.

Aidan reached a settlement with Dr. Nishibayashi and his corporation, under which Dr. Nishibayashi agreed to pay the limits of his malpractice insurance, $1 million, and to participate at a trial in which the jury would allocate the negligence, if any, of the Hospital and Dr. Nishibayashi and set the amount of damages. In exchange, Aidan would give Dr. Nishibayashi and his corporation a release of liability. The trial court ruled that the settlement did not meet the standard of good faith under Code of Civil Procedure sections 877 and 877.6, because it was grossly disproportionate to Dr. Nishibayashi's potential share of liability and to the total expected recovery. Nonetheless, Aidan and Dr. Nishibayashi chose to proceed with the settlement.

The case was tried to a jury, which found both the Hospital and Dr. Nishibayashi negligent, and awarded damages of $78,375.55 for past medical costs, $250,000 for non-economic damages, $82,782,000 for future medical care (with a present value of $14 million) and $13.3 million for loss of future earnings (with a present value of $1,154,000). Apportioning fault, the jury found the Hospital 40 percent negligent, Dr. Nishibayashi 55 percent negligent, and plaintiff's parents, Nancy and Kevin Leung, each 2.5 percent negligent.

Ultimately, the court approved a minor's compromise regarding Aidan's settlement with Dr. Nishibayashi, and incorporated the verdict into a periodic payments judgment under Code of Civil Procedure section 667.7, which declared the Hospital jointly and severally liable for 95 percent of all economic damages found by the jury and severally liable for its 40 percent share of non-economic damages.*fn2 The Hospital appeals from the judgment.

In the published portion of our opinion, we address the Hospital's contention that common law, rather than Code of Civil Procedure sections 877 and 877.6, governs the effect of Aidan's settlement with and release of Dr. Nishibayashi. Under the common law release rule, a release for consideration of one joint tortfeasor operates as a release of the joint and several liability of the other joint tortfeasors. (See e.g., Bee v. Cooper (1932) 217 Cal. 96, 99-100 (Bee); Tompkins v. Clay Street R.R. Co. (1884) 66 Cal. 163, 166-168 (Tompkins).) According to the Hospital, Aidan's release of Dr. Nishibayashi in consideration of his $1 million settlement payment released the Hospital from its joint and several liability for Aidan's economic damages, though not for its proportionate share of Aidan's non-economic damages (such liability being "several only and . . . not . . . joint" (Civ. Code, § 1431.2, subd. (a)).

As we explain, although the California Supreme Court has criticized the common law release rule as applied to concurrent tortfeasors, the court has not abandoned it. Stare decisis compels us to follow the rule. We therefore reverse that portion of the judgment imposing joint and several liability on the Hospital for Aidan's economic damages. However, we urge the California Supreme Court to grant review, conclusively abandon the release rule, and fashion a new common law rule concerning the effect of a non-good faith settlement on a non-settling tortfeasor's liability.

Because this holding does not affect the Hospital's several liability for Aidan's non-economic damages, we address, in the unpublished portion of our opinion, two other contentions attacking the judgment. In response to those contentions, we conclude that substantial evidence supports the jury's finding that the Hospital's negligence was a substantial factor in causing Aidan's brain damage, and that comments by the trial court neither improperly instructed the jury on causation nor influenced two jurors to change their votes on that issue. We therefore affirm that portion of the judgment that requires the Hospital to pay its proportionate share of Aidan's non-economic damages.*fn3


I. Plaintiff's Evidence

A. Jaundice, Bilirubin, Hyperbilirubinemia, and Kernicterus

In infants, jaundice manifests as a yellowish tint first to the skin and later to the whites of the eyes. It is caused by the buildup of bilirubin in the blood, a yellow waste product produced by the breakdown of red blood cells. All infants have rising levels of bilirubin for the first three to five days. The peak is close to the fifth day, unless there are conditions exacerbating the jaundice. Absent such conditions, the level then reduces within a week or so as the infant's liver develops and bilirubin is expelled, primarily in the stool (a yellowish stool indicates expulsion of bilirubin). Ensuring adequate milk intake so as to create sufficient stool to expel bilirubin is the primary way of preventing the infant's bilirubin level from continuing to rise.

If not expelled, bilirubin can reach dangerous levels, called "hyperbilirubinemia," and migrate to the brain where it can cause kernicterus, leading to severe brain damage. However, hyperbilirubinemia can easily be treated by phototherapy (using lights called "bililights" to expose the infant to the blue light spectrum) or, in extreme cases, an "exchange transfusion" (a blood transfusion that totally replaces the infant's blood). The first signs that hyperbilirubinemia has led to kernicterus -- that is, the first signs that the level of bilirubin is toxic -- include lethargy and a refusal to feed.

Some infants have a higher risk of kernicterus than others. The clinical risk factors are well-known, and include that the infant is: (1) male, (2) of East Asian descent, (3) born at less than 38 weeks gestation, (4) exclusively breast fed and displays (5) bruising, (6) jaundice within the first 24 hours, and (7) weight loss. According to Dr. Vinod Bhutani, a neonatologist specializing in kernicterus who testified as an expert witness for Aidan, the occurrence of kernicterus is rare. However, there has been a resurgence of the condition, because infants are commonly discharged earlier than 72 hours after birth, and there is insufficient follow-up to assess the level of bilirubin and to give adequate support for breast feeding to ensure the infant is getting enough milk.

B. Events Leading to Aidan's Brain Damage

1. Aidan's Birth and Hospital Stay

Aidan was born at the Hospital on a Monday (March 24, 2003), at 12:02 p.m. His due date, as calculated based on an ultra sound of the fetus conducted by his mother's obstetrician early in pregnancy, was April 12. He was born early, at 37 weeks, 2 days gestation.

Aidan's mother, Nancy Leung, decided to breast feed exclusively. The day of the birth, she tried to feed Aidan every two hours, five or six times, but he showed little interest, and she could not tell if he was actually feeding. He seemed to latch on and then come off. Nancy testified that she told two of the attending nurses, Susan McBroom and Margaret McClammy, that she was not sure she was doing it right. At least three times she said that she was concerned Aidan was not getting enough milk. They would watch, "kind of guide [her] a little bit," and say that "he seems like he's getting the hang of it. Just keep trying." Only one nurse, McBroom, instructed her as she brought Aidan to the breast, helped her position him, and observed that he seemed to latch on. The instruction lasted 5 to 10 minutes. Two entries on Aidan's chart (the last at 2:00 a.m. on March 25) reflected poor breast feeding. There were no other entries on the subject.

The next day, Tuesday (March 25), around 7:00 a.m., Dr. Nishibayashi, Aidan's pediatrician, examined Aidan. He told Nancy and her husband, Kevin, that Aidan was healthy. He mentioned two bruises on the side of Aidan's head ("cephalohematomas"), and said that such bruises were common at birth and nothing to worry about. When he asked if Nancy intended to breast feed, she told him that she was going to "give it a try." She asked if it was safe to take Aidan home, and Dr. Nishibayashi said that it was. He told the Leungs to make a follow-up appointment for the next week. He gave no further instructions, and mentioned nothing about Aidan having any risk factors for jaundice or kernicterus.

2. Aidan's Discharge

Aidan was discharged at 11:45 a.m. that Tuesday, approximately 24 hours after birth. The Hospital provided the Leungs with a manual, "Caring For Yourself and Your New Baby" (the manual), and the nurses told the Leungs to refer to it if there were any problems. No one at the Hospital mentioned risk factors for jaundice or kernicterus.

When the Leungs arrived at home with Aidan, Nancy made an appointment with Dr. Nishibayashi for the following Monday (March 31). At home, she breast fed Aidan and changed his diapers eight to ten times a day (every two to three hours). Aidan's pattern of soiling diapers was consistent with what Nancy had been taught in prenatal class at the Hospital, and at some point she observed that Aidan's stool had a golden, curdy appearance.

3. Aidan's Jaundice

Around noon on Thursday (March 27), Nancy and Kevin noticed that Aidan's eyes appeared yellow (indicative of jaundice) and his lips were chapped. They examined the section of the manual on jaundice, which suggested (in their minds) that the condition was common and posed no danger to Aidan. The manual described jaundice in part as "a common condition in newborn infants" and stated that "[i]n most instances, the jaundice is so mild that it can be ignored [and] usually will disappear without treatment." The manual mentioned that "[w]hen the bilirubin level becomes too high, jaundice can be dangerous to your baby's developing nervous system." However, it described this dangerous condition as occurring "very rarely." In terms of the risk of it developing, the manual stated only that "[t]he level at which jaundice may be dangerous depends on many factors: your baby's age, whether he was full-term or premature, and whether he has any other medical conditions." It also stated that bruises to the baby's head and face after birth "will heal in a few days and [are] not dangerous to your baby." It contained no other information suggesting that Aidan belonged to a class of infants at high risk of jaundice reaching dangerous levels, and suggested that if parents had questions about their baby's jaundice, they should call the baby's physician.*fn4

4. The Thursday Telephone Call to Dr. Nishibayashi's Office

Nancy called Dr. Nishibayashi's office. She testified that Dr. Nishibayashi's nurse answered and said that the doctor was with other patients. Nancy said that Aidan appeared yellow. The nurse told her not to worry, and said she would check with the doctor. The nurse returned and asked if Aidan was "feeding," "peeing," and "pooping." Nancy said yes. The nurse said that it sounded as if Aidan was doing all right, and suggested placing him in sunlight to treat the jaundice. Nancy mentioned Aidan's chapped lips. The nurse said that it was probably sucking blisters from breast feeding, and suggested Nancy apply lotion. Nancy asked if she should wait until the scheduled appointment or bring him in now. The nurse advised to wait until the scheduled appointment.

The testimony of the nurse, Julie Donnelly, presented a different version. Donnelly identified a phone message she wrote memorializing the conversation, which stated that Aidan was "slightly yellow but nursing well," and had "good yellow stools and [was] voiding well." The phone message also indicated that Dr. Nishibayashi told her to instruct Nancy Leung to watch for increased sleepiness, decreased appetite or jaundice. Donnelly testified that Nancy Leung did not ask if she should bring Aidan in immediately. If a parent called Dr. Nishibayashi's office, expressed concern about an infant's condition, and asked to have the baby seen at the office, the practice of Dr. Nishibayashi's office was "absolutely" to see the infant, and "more than likely" the infant would be seen. Also, when an infant is brought to the office, the baby is weighed to determine whether weight has been lost or gained.

Nancy, however, denied that she told the nurse that Aidan was feeding, peeing, or pooping "well." She also denied that Donnelly told her to watch for increased sleepiness or decreased appetite.

Dr. Nishibayashi, who had been on the Hospital's medical staff with privileges to admit patients for 26 years, testified that he was aware of the risk factors for jaundice and hyperbilirubinemia in newborns, some of which applied to Aidan.*fn5 Despite those risk factors, Dr. Nishibayashi was not concerned about discharging Aidan within 24 hours of birth. Aidan's symptoms as described by Donnelly indicated to Dr. Nishibayashi that Aidan's jaundiced condition was mild. Without any indication of dehydration, inadequate feeding or voiding, or a change in alertness, Dr. Nishibayashi found no need for Aidan to be brought to the office. Rather, the scheduled appointment for the following Monday was appropriate.

Having read the section of the manual on jaundice (which suggested that Aidan's condition was common and not dangerous) and having received similar information from Dr. Nishibayashi through his nurse, the Leungs had no concern that Aidan was in any danger and no concern that he should be examined immediately. They assumed that his jaundice would subside.

5. Aidan's Kernicterus

Over the next two days, Friday and Saturday, Nancy continued to try to breast feed Aidan every two hours. The extent of his feeding varied. He soiled diapers, but she did not know whether the level of stool was normal. She and Kevin placed him in the sun as recommended, and relied on advice contained in the manual, but there was no change in his jaundice.

By Saturday evening, Nancy and Kevin noticed that Aidan appeared lethargic. By early Sunday, he was very sleepy and would not wake for feedings. Nancy called Dr. Nishibayashi's office, and left a message with his answering service. An on-call physician who was covering for Dr. Nishibayashi called back. Nancy described Aidan's symptoms, and the physician told her to take Aidan to the emergency room at Huntington Memorial Hospital immediately.

They arrived at Huntington Memorial around 8:00 a.m. Aidan was given an exchange transfusion to reduce the level of bilirubin, but it was ineffective. He had already suffered severe brain damage from kernicterus. Further, his chapped lips were caused by dehydration, and he had lost two pounds since discharge.

Child Neurologist Steven Shapiro examined Aidan in April 2007. He described Aidan's condition as a type of cerebral palsy. Aidan is likely to live a normal lifespan, but he cannot move or talk. The portion of his brain that governs thinking was not affected, and he is thus likely to be of normal intelligence. He will need intensive care, medication, and physical and speech therapy for the rest of his life. Although Dr. Shapiro could not pinpoint a time at which Aidan suffered brain damage, the toxicity "probably" began when the Leungs noticed symptoms of kernicterus -- lethargy and refusing to feed -- on late Saturday or early Sunday.

C. The Hospital's Negligence

1. Failure to Implement Sentinel Event Alert No. 18

The Hospital is accredited by the Joint Commission on Accreditation of Healthcare Organizations (JCAHO).*fn6 JCAHO issues "Sentinel Event Alerts" to member hospitals that convey information about major healthcare issues.

As explained by Arthur Shorr, an expert in hospital administration, hospitals do not practice medicine. Rather, they provide the environment for physicians to practice medicine. In providing that environment, hospital procedures and the conduct of the hospital staff must meet certain community standards of care. According to Shorr, JCAHO standards are commonly recognized as the minimum accepted community standards for both member and non-member hospitals. In Shorr's opinion, a Sentinel Event Alert, although not a formal JCAHO standard, carries "equivalent weight," and a hospital is obligated to create its own policies and procedures to deal with the health care issue discussed in the alert.

In April 2001, JCAHO issued Sentinel Event Alert No. 18 (Alert 18) regarding kernicterus.*fn7 It warned of the reemergence of kernicterus, and advised that "[i]n order to identify these rare newborns [at risk of kernicterus], certain organization systems and processes should be in place." The alert identified risk factors, and listed "root causes" (such as the failure to recognize jaundice and measure bilirubin levels in infants, to provide a continuum of care, to provide appropriate information to parents and respond to their concerns, and to aggressively treat rising bilirubin levels). It also provided "risk reduction strategies" for hospitals to consider, including "[p]olicies for assessing the risk of severe hyperbilirubinemia in all infants by history, clinical evaluation and, if necessary, by laboratory measurement," and "[p]rocedures for follow-up of all newborns within 24 to 48 hours by a physician or pediatric nurse," or, "[if] this cannot be achieved, decisions regarding timing of discharge or other follow-up must be based on risk assessment." The alert "recommend[ed] that organizations (1) take steps to raise awareness among neonatal caregivers of the potential for kernicterus and its risk factors; (2) review their current patient care processes with regard to the identification and management of hyperbilirubinemia in newborns; and (3) identify strategies from the above list of available risk reduction strategies that could enhance the effectiveness of these processes."

In Shorr's opinion, the issuance of Alert 18 required the Hospital to take appropriate steps to ensure procedures were in place to reduce the risk of kernicterus in newborns. However, the Hospital never responded by implementing any recommendations, a fact confirmed by David Greer, the Hospital's Director of Quality Management, and Margaret McCormick, the Hospital's Director of Perinatal Services. Greer sent a copy of Alert 18 to relevant department heads, including McCormick, but did nothing else to follow-up or to implement any of the recommendations. According to Greer, the Hospital had no policy for assessing the risk of hyperbilirubinemia or kernicterus. McCormick, who supervised the nurses who provided newborn care and were responsible for identifying newborns at risk for hyperbilirubinemia and kernicterus, testified that although her practice was to review Sentinel Event Alerts and assess whether to recommend changes in nursing practices, she had no recollection of receiving Alert 18 or of any change of policy.*fn8

In Shorr's opinion, the Hospital's failure to implement any recommendations in Alert 18 to reduce the risk of a newborn developing kernicterus violated the Hospital's duty of post-delivery care. Implementation of the alert would have created the circumstances under which the nursing staff and Dr. Nishibayashi could be expected to act differently in a material way in responding to the risk factors displayed by Aidan and in dealing with the parents' concern. Shorr could not speculate, however, on what the outcome might have been for Aidan.

2. Failure to Ensure a Timely Appointment, Properly Assess Aidan's Risk, and Educate the Leungs

Dr. Vinod Bhutani, Aidan's expert witness on the Hospital's and Dr. Nishibayashi's standards of care, also found that the Hospital breached its duty of care. His opinions were all based on reasonable medical probability. The focus of his testimony was on steps that would have prevented hyperbilirubinemia and kernicterus, rather than on treatment. He identified a series of failures by the Hospital's nursing staff to provide the Leungs with adequate information and instruction. In his opinion, considered together, these failures contributed to Aidan suffering brain damage.

a. Timely Follow-up Appointment

First, the nursing staff failed to instruct the Leungs that a follow-up appointment within two to three days after discharge (three to five days of age) was mandatory. The necessity of such a follow-up appointment for an infant who is discharged within the first 48 hours after birth is recognized as part of the standard of perinatal care for nurses (as well as doctors) based on guidelines endorsed by various medical and related organizations, including the American Hospital Association and the Neonatal Nurses' Association. The follow-up appointment is important, because various conditions, such as jaundice, may not appear at early discharge, and there should be an assessment of the baby's condition, including whether the infant is feeding properly. For Aidan, such an appointment had special importance, because he was discharged very early, within 24 hours of birth and, as noted below, he was at an increased risk of developing hyperbilirubinemia leading to kernicterus.

According to Dr. Bhutani, although the date of a follow-up appointment is decided by the pediatrician and the parents, the nurses have an independent duty to reinforce the need for a timely follow-up appointment. If in their judgment the pediatrician has suggested an appointment date that is outside the standard of care, the nurses have the duty to advise the parents or the pediatrician of their disagreement.

If Dr. Nishibayashi had seen Aidan within two to three days of discharge (for instance, on the Thursday of Nancy Leung's telephone call to his office), Dr. Bhutani testified that the following steps would have occurred: (1) Aidan would have been weighed (based on his age, he should have been gaining rather than losing weight); (2) Dr. Nishibayashi would have asked Nancy Leung first hand questions relevant to assessing Aidan's level of jaundice (such as whether the stools were changing color and whether Aidan was getting enough to eat); and (3) he would have seen the progression of Aidan's jaundice (it was already apparent in his eyes, and was clearly progressing). Based on this information, administering a bilirubin test would have been "good medical practice," though there was no requirement that Dr. Nishibayashi do so. The important point was that Aidan should have been examined, so that Dr. Nishibayashi could assess whether Aidan needed to be treated immediately or could be treated at home. Such an "assessment on Thursday would have been a very important step, the last step . . . in preventing the tragedy that Aidan has gone through."

b. Risk Assessment

Second, the Hospital failed to perform any risk assessment on Aidan for jaundice and hyperbilirubinemia (such as by testing for bilirubin or by evaluating the applicability to Aidan of the well-known clinical risk factors), failed to inform the Leungs of Aidan's particular risk, and failed to emphasize that, because of that risk, a timely follow-up appointment was even more necessary for Aidan than typical. At discharge, Aidan showed some (not all) of the major risk factors (male, East Asian descent, bruising, breast feeding), as well as the minor risk ...

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