The following article is from:
http://www.courthousenews.com/2012/02/06/43641.htm
A
copy of the actual filing may be viewed here:
http://www.courthousenews.com/2012/02/06/Kaiser.pdf
and
at
http://legalstuff.kaiserpapers.org/pdfs/victorino-noval.pdf
Grim
Complaint Against Kaiser Hospital - Victorino Noval Kaiser victim and
Hector A. Noval his Personal Representative
By WILLIAM DOTINGA
RIVERSIDE, Calif. (CN) -
A son
claims a Kaiser hospital ignored
his wealthy father's
power of attorney so the plaintiff's greedy siblings could collect
multimillion-dollar inheritances.
Hector
Noval sued
Kaiser Foundation Hospitals and affiliates, a doctor and two social
workers on behalf of his father, Victorino Noval, who died in May 2010
after a "terminal extubation." Noval says his father had been
involuntarily admitted to Kaiser's intensive care unit for pneumonia on
April 28, 2010, while suffering from early-stage of Parkinson's and
chronic obstructive pulmonary disease.
Before
being
hospitalized, Noval, 78, "lived in his own home, drove his own vehicle,
and performed his own activities of daily living," according to the
Superior Court complaint. "He was worth $60 million and had annual
income of $3 million. He made investments and controlled his finances.
He suffered from no neurological deficiencies. He did not have dementia
or diminished capacity, He functioned independent of others. He was in
no way nearing death, an irreversible coma, or a persistent vegetative
state. Upon hospitalization, he only required temporary oxygen support
while the pneumonia infection in his lungs cleared and he regained his
strength. His condition was no more serious than that."
However,
Hector Noval
says, two of his sisters, Lourdes Frost and Tania Noval, told Kaiser
doctors, "falsely and fraudulently," that their father had "'advanced'
Parkinson's disease" and had been declining for 6 months before his
hospitalization.
He
claims that his
siblings' false and fraudulent statements included "that he 'would not
want to be hooked to a machine like a ventilator,' even if just
temporarily, and that 'he had expressed this to [his] daughter both
when he is well, and when not so well.' Frost and Noval told defendants
that decedent 'would not [have] wanted to be resuscitated if he is to
pass away ... he would want to die peacefully if that was to happen.'
Each of these statements were untrue. Defendants performed no diligence
into their veracity and accepted them as true."
Neither
sister is
named as a defendant.
Plaintiff
Noval
claims that on the day his father was admitted, April 28, 2010, he
"expressed his desire that decedent be transported to Cedar Sinai in
Beverly Hills, California for treatment and that he
not
be treated at Kaiser. Defendants acknowledged these desires but refused
to honor them." (Emphasis in complaint.)
Noval
says he has
three adult siblings. He says his sisters Lourdes Frost and Tania Noval
"desired decedent's death to collect their multimillion-dollar
inheritances." He claims that Tania Noval "had a pre-existing
relationship with [defendant social worker Anthony] Tapia.
Hector
Noval claims
that after his father was "sedated for comfort," Frost filed with
Kaiser a copy of their father's durable power of attorney for health
care, dating from July 1999. He says the power of attorney named him
and Frost as their father's attorney in fact, and that California law
required the defendants to get consent from both of them to make health
care decisions for their father.
But
he says,
"Defendants did not of this. They never disclosed the DPOA [durable
power of attorney] to plaintiff or advised him of his rights or
responsibilities therein. Neither did Frost or [defendant] Noval.
Plaintiff was never made aware of the DPOA or his rights and
responsibilities therein."
In
the days that
followed, Hector Noval says, his father's doctor, defendant Richard
Bradburne, and social worker Tapia met with his sisters and discussed
their father's condition, medical outlook and quality of life.
On
May 3, he says,
Dr. Bradburne prescribed "1-2 more weeks of continued aggressive
treatment for the decedent. Plaintiff was at Kaiser at the time and
again requested that defendants transport decedent to Cedar Sinai or a
like facility. Defendants refused. They never disclosed the DPOA or
discussed it with plaintiff, and plaintiff went unaware of his rights
in the matter."
Hector
Noval claims
that on May 4 his sisters "met with Tapia and told him that 'the entire
family' desired terminal extubation, i.e. the withdrawal of treatment
and death. 'The entire family' did not desire terminal extubation.
Frost and [Tania] Noval instructed Tapia to contact a Catholic priest
to visit [Victorino] Noval and read his last rites. Tapia did so. Tapia
then communicated to defendants that the 'family' desired terminal
extubation. No one contacted plaintiff or informed him that any of this
was taking place. "Plaintiff was unaware of all of this," according to
the complaint.
Hector
Noval claims
that when he entered the Kaiser hospital on May 5, "Tapia appeared with
security at the entrance and had plaintiff searched by security for
weapons. No explanation was given. Tapia then took plaintiff to a
conference room and told him that decedent was going to be terminally
extubated the following day. He gave plaintiff no explanation for the
change in treatment and didn't discuss the DPOA with plaintiff or
advise plaintiff that he was a 'joint agent' for health care decisions
and had the authority to prevent, delay, or postpone it."
Hector
Noval says he
asked that terminal extubation be delayed and asked again that he
father be sent to Cedars Sinai. The complaint states: "Tapia tried
convincing plaintiff otherwise but ultimately agreed to communicate his
request to delay extubation and said he would 'continue to follow up'
with plaintiff and have 'continued conversations' with him 'regarding
treatment and terminal extubation.' This was plaintiff's only
conversation with Tapia regarding treatment and extubation. They never
spoke again despite Tapia's promise.
"Plaintiff
left and
retained counsel.
"Tapia
recorded in
decedent's medical file that 'the entire family is in agreement with
the terminal extubation except now [plaintiff] showed up today and is
causing conflict.' He also recorded that plaintiff 'had history of
substance abuse and paranoid personality.' Neither statement was true,
and neither was discussed with plaintiff. Tapia wrote them in the
record after hearing them from Frost and {Tania} Noval and without
performing any diligence or due care into their veracity." (Brackets,
but not braces, as in complaint.)
Noval
says Tapia
"spread these misstatements to defendants, including Bradburne, who
wrote in decedent's medical record: 'family discussion, all siblings
except one son [plaintiff] and wife are in agreement [regarding
terminal extubation] ... the son in disagreement [plaintiff] is a
habitual drug user/addict and his judgments and motives are likely not
sound in the context of acting as a surrogate decision maker.'"
(Brackets as in complaint.)
Hector
Noval adds:
"One single telephone call to plaintiff or related effort would have
cleared the matter. Yet no defendant sought to communicate directly
with plaintiff. He was unaware these allegations were being made about
him."
The
complaint
continues: "Bradburne has since apologized for the medical record,
stating that Tapia 'had informed me at some point that this information
[about plaintiff] had been alleged.' 'That is not a fair statement
actually [about plaintiff].' 'I'm making a statement of fact there and
that's not true.' 'The keyword that's left out of that sentence is
"alleged."' ... He said 'frankly, I regret writing that way.'"
(Brackets, but not ellipsis, as in complaint.)
Hector
Noval claims
that he called a meeting with the sisters on the evening of May 5. He
says his sisters produced a will and a trust, and told him to "stop
complaining about decedent's death because he'd inherit millions of
dollars."
At
the meeting,
Hector Noval says, he and his lawyer demanded that no terminal
extubation take place without his knowledge and consent and that when
reasonable, their father be taken off sedation so he could communicate
his wishes and direct his own care. He claims that both sisters "agreed
to honor these demands. This was plaintiff's and counsel's last
communication with Frost and/or Noval before decedent's death."
Hector
claims that on
May 6, his two sisters met with Kaiser, and said "that plaintiff had
'threatened violence' the evening before and that they were 'afraid' of
him. These were false and fraudulent misrepresentations designed solely
to discredit and disparage plaintiff and convince defendants to
terminally extubate pursuant to their instructions."
He
claims that had
any of the defendants "made one single telephone call to plaintiff or
related effort, they would have discovered the allegations of violence
were untrue, that plaintiff had retained counsel, and that Frost and
Noval were committing egregious fraud and fraudulent concealment to
accomplish their father's death."
On
May 6, Hector
says, the defendants referred this "true conflict" to defendant Dan
Wilson, "a 'bioethics director' and/or on the 'bioethics committee' at
Kaiser, to perform an analysis into how to handle decedent's health
care going forward."
Hector
claims Wilson
interviewed his sisters - but not him - "and concluded plaintiff was in
a 'clearly impaired condition' and that Kaiser should proceed with
terminal extubation at the desires of 'joint agent [Frost] and the
remaining family members.'" (Brackets in complaint.)
Hector
says that
Wilson never met with him, never communicated with him, and that no one
at the hospital ever informed him of Wilson's involvement or
conclusions.
"Plaintiff
believed,
instead, from his discussion with Tapia on May 5 that Kaiser would
communicate with him before terminal extubation, and from his
discussion with Frost and [Tania] Noval on the evening of May 5, that
Frost and Noval would not seek terminal extubation without obtaining
plaintiff's expressed consent beforehand," the complaint states.
(Brackets not in complaint.)
Hector
claims that on
May 6, "Frost told Tapia that she was traveling to a meeting with
plaintiff and his counsel and that the family 'plans to move forward
with the extubation [the next day].' This was a false and fraudulent
misrepresentation. There was no such meeting ever scheduled with
plaintiff and his counsel, and plaintiff was never in agreement with
extubation." (Brackets in complaint.)
Hector
claims that by
then his father had shown "material improvement in his health
condition," which Dr. Bradburne noted. He claims Bradburne noted,
"'currently, [he] does not meet the ordinary criteria for extubation.'"
(Brackets in complaint.)
Hector
adds:
"Bradburne never communicated any of this to plaintiff."
He
claims that in a
sworn deposition Bradburne was asked if extubation could have been
postponed. "He said 'Absolutely,'" the complaint states. "He said that
if anyone, including plaintiff, sought postponement, he would have done
so. When asked how long he would have postponed extubation, he said
'Now till the cows come home.'" Hector claims that on May 7, moments
before his father's terminal extubation, Bradburne told his sisters
that their father's condition had further improved: that the pneumonia
was clearing, his temperature had returned to normal, the ventilator
had been replaced with a CPAP [continuous positive airway pressure]
mask, "which meant there were no tubes, just a mask over his mouth and
nose", that his father was "in no distress," with normal heart rate,
stable blood pressure, and that he was "'awake to voice with eye
opening and eye contact for more than 10 seconds.'"
He
says Bradburne
gave his sisters "the opportunity to postpone extubation at that
moment. They declined."
Hector
says Bradburne
tasked Wilson with ensuring that he, Hector Noval, was aware of his
father's terminal extubation and that he was still in favor of it.
Hector says that Wilson never contacted him; he simply asked Frost.
"(A)ccording
to his
note in decedent's medical file, '[Frost] confirmed that her brother
Hector has agreed to follow family wishes regarding extubation and has
decided not to be present at actual event,'" the complaint states.
(Brackets in complaint.)
Hector
says that
after his father's breathing tube was removed, Victorino Noval
"maintained spontaneous breathing and satisfactory oxygen saturation
(93-97%) on this 'simple mask.'" He says Bradburne again gave his
sisters the opportunity to postpone their father's death. He says both
sisters declined, and Bradburne quadrupled Noval's morphine "to quicken
his death" and "effectively ended oxygen support".
Hector
says his
father died 4 hours and 40 minutes after being extubated, "after 85
minutes fighting to survive with effectively no oxygen and heavily
sedated."
Hector
says he
learned his father had died when he arrived at the hospital for a visit
that evening. He says his sisters told him that Kaiser "had done all
they could and that the decedent had passed away in spite of active
treatment, not because of any withdrawal of treatment or terminal
extubation."
"At
that point there
was no reason to believe any wrongdoing had taken place," the complaint
states. "Plaintiff had no knowledge of DPOA, no knowledge of the
allegations of Frost and [Tania] Noval to defendants, and no knowledge
of defendants' withdrawal of treatment and terminal extubation. He
wasn't even aware of decedent's material improvement over the final
days of his hospitalization. No one had communicated any of this to
him. The only communications he received were from Frost and [Tania]
Noval representing that decedent was gravely and terminally ill, that
he was in agony, and that there was no likelihood of survival."
(Brackets not in complaint.)
Hector
says he
learned of the durable power of attorney after his sisters' attorneys
produced it with other estate planning documents they had been
concealing. Only then, he says did he order his father's medical
records from Kaiser and discover the facts.
Hector
claims that in
sworn depositions, both Bradburne and Tapia stated that Kaiser's policy
is "to do all that is necessary to inform healthcare agents of their
rights and responsibilities under a DPOA. They described past incidents
wherein they would even search distant states and foreign countries for
health-care agents and would even reach out to health-care agents
through intermediaries and agents-of-the-agent. They testified with no
doubt that defendants would go to great lengths to communicate with
healthcare agents about their rights and responsibilities under a DPOA.
It's
that critical
to a patient's care. Yet in this
instant matter, defendants knew plaintiff, had his contact information,
spoke to him and/or his family members multiple times, and had every
opportunity to communicate with plaintiff about the DPOA and his rights
and responsibilities therein, and they failed to perform even minimal
diligence and due care in doing so. They undoubtedly wanted to believe
Frost and [Tania] Noval and 'buried their heads in the sand.' This
directly and legally caused the death of a relatively healthy, wealthy
man with many more years left to live and love." (Brackets not in
complaint.)
Hector
Noval seeks
damages and punitive from all the defendants on claims of willful
misconduct, negligence, elder abuse, fraudulent concealment,
constructive fraud, breach of fiduciary duty and wrongful death.
He
seeks damages from
Kaiser and Tapia for fraud and false promise; and damages from Kaiser
and Bradburne for medical battery and lack of informed consent.
The
corporate
defendants are Kaiser Foundation Health Plant, Kaiser Foundation
Hospitals, and Southern California Permanente Medical Group.
Hector
Noval is
represented by Casey Young of Newport Beach.
KAISERPAPERS.ORG
legalstuff.kaiserpapers.org
