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Keys v. Alta Bates Summit Medical Center

California Court of Appeals, First District, Third Division

February 23, 2015

PHYLLIS KEYS et al., Plaintiffs and Respondents,

Alameda County Super. Ct. No. RG09478812

Page 485


Sheuerman, Martini, Tabari, Zenere & Garvin, Michael John Garvin; Greines, Martin, Stein & Richland and Alison M. Turner for Defendant and Appellant.

Willoughby Law Firm, Markus Berlin Willoughby; Duckworth, Peters, Lebowitz, Olivier and Monique Olivier for Plaintiffs and Respondents.



Defendant Alta Bates Summit Medical Center (Alta Bates) appeals from the portion of a judgment awarding plaintiffs Phyllis Keys and

Page 486

Erma Smith damages on their claims for negligent infliction of emotional distress (NIED). Defendant contends there is no evidence to support the jury’s finding that plaintiffs meaningfully comprehended the medical negligence that led to the death of their family member at the time the negligence was occurring. We disagree and affirm the judgment with respect to the emotional distress claims.

Factual History

Madeline Knox was the mother of plaintiff Phyllis Keys and the sister of plaintiff Erma Smith. On September 26, 2008, Keys and Smith accompanied Knox to Alta Bates where she underwent surgery on her thyroid. At approximately 6:45 p.m., Knox was transferred from a post-anesthesia care unit to a medical-surgical unit. At that time, a nurse noticed Knox’s breathing was “noisy, ” and thought it was stridor, a sound that comes from the upper airway suggesting the airway is obstructed. Because of Knox’s respiratory difficulty, at 6:46 p.m., the nurse called the hospital’s rapid assessment team to evaluate her. The rapid assessment team is composed of a respiratory therapist and a nurse from the intensive care unit (ICU). Notes taken by the ICU nurse indicated the rapid assessment team arrived at Knox’s bedside at 6:48 p.m., and left her room at 6:57 p.m. While there, the respiratory therapist suctioned Knox’s mouth, removing some secretions. Dr. Richard Kerbavaz, the surgeon who operated on Knox, was called at 6:50 p.m. and advised about Knox’s breathing. Dr. Kerbavaz arrived sometime shortly after 7:00 p.m. At Knox’s bedside, Dr. Kerbavaz tried to reposition her and suctioned her mouth and nose. As he removed the bandages and began removing the sutures on her incision to relieve pressure, Knox stopped breathing. Dr. Kerbavaz called a code blue at 7:23 p.m.[1] Knox was without a pulse for a number of minutes and as a result of her blocked airway, she suffered a permanent brain injury. Knox was transferred to the ICU. She died on October 5, 2008, after life support was withdrawn.

Keys saw her mother immediately after surgery while she was on a gurney waiting to be brought to her room. Keys testified that Knox “didn’t look herself” and her skin appeared gray. Knox appeared to be very uncomfortable and in distress, and she was sweating. She could not speak and was making a gurgling sound when she breathed. Once they were in her room, the respiratory therapist suctioned Knox twice. Knox had nodded when asked if the suctioning made her feel better, but she still appeared to be uncomfortable. Keys asked the nurse to call Knox’s doctor because her conditions was not improving. After Dr. Kerbavaz arrived, she watched him begin to

Page 487

examine the site of the surgery and then saw her mother’s eyes roll back and her arm go up, and Dr. Kerbavaz call code blue. Smith immediately took Keys from the room. Keys was frustrated and upset because she felt there was no sense of urgency among the staff to determine why her mother was in distress; she thought that the nurses and others were not moving quickly enough.

Smith too saw Knox near the nurse’s station before she was moved into her room. Knox indicated to her that she had a breathing problem. Knox looked uncomfortable to Smith, and was panting, but she was alert and sitting up. Knox was perspiring and was clammy. The first suctioning performed by the respiratory therapist appeared to provide some relief; Smith asked Knox if she felt better and she nodded. The problem recurred and at Smith’s request, the respiratory therapist suctioned Knox again. Smith asked that Dr. Kerbavaz be called. Her sister remained uncomfortable while they were awaiting Dr. Kerbavaz and was not breathing well. After Dr. Kerbavaz arrived, Smith saw him reach toward her sister’s neck and her sister’s arm go up, and then someone called code blue. Everybody was then moving, and she and Keys were pushed aside. When code blue was called, she left the room immediately but went back to get Keys, who had not moved. Smith believed somebody should have come to help her sister sooner than they did. The lack of a sense of urgency upset her.

Procedural History

Plaintiffs Keys and Smith, along with Key’s sister Starlette Settles, filed a complaint for damages against defendant alleging causes of action for wrongful death and NIED. Prior to trial, plaintiffs settled their claims against Dr. Kerbavaz, and the settlement was found to be in good faith. After trial, the jury awarded Keys and Settles $1 million on ...

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