Huge Settlement Little Comfort to Invalid’s Family : Medical Error Cancels Bright Future

When David Berg walked into Downey Community Hospital five years ago, he looked like an advertisement for a health club.

A tan and muscular 6-foot-4, 205 pounds, Berg, then 22, had been running and working out daily with weights.

In just a month, the Downey resident was scheduled to begin his senior year at the University of South Dakota, where he was an honor student and biology major studying to become a veterinarian. In the waning days of summer vacation, Berg had planned elective surgery at the hospital to take care of a nagging groin problem. The procedure was considered so routine that his doctor told him he could expect to go camping on the Kern River two weeks after surgery.

He never made it.

These days, Berg lies in a hospital room in Inglewood, looking pale and fragile. At 125 pounds, he is so weak he can no longer sit up in bed. Heavily sedated to control muscle spasms, Berg lies flat on his back and gazes with seemingly frightened blue eyes at a world his neurologist says is only a blur to him.

Next to his bed, his tape deck, which once blasted his favorite Bruce Springsteen songs, is tuned to an easy-listening station. Every six hours, the monotony is interrupted by a nurse who connects a thin plastic tube to an opening in his stomach, so that he can be fed juice or liquid food. When Berg soils his diapers, he must lie in them until a nurse comes, because he is mute and can communicate only by small gestures such as blinking his eyes.

Severe Brain Damage

Berg is the victim in a malpractice case that lawyers on both sides say is the worst they have ever seen. The case resulted in what prominent malpractice lawyers say was an unusually high out-of-court settlement last December that will amount to at least $13.8 million over a 30-year period. The settlement was made after an error in administering an anesthetic deprived Berg of oxygen for about 20 minutes and left him with severe brain damage.

The settlement calls for Downey Community Hospital, three doctors and the manufacturers of an anesthesia machine to pay a total of $5.1 million. The money was paid this year to an insurance company, which purchased annuities that will result in monthly payments for the lifetime of Berg, his family and his lawyer.

Terms of the agreement call for paying $16,666 a month to Berg’s estate for his lifetime or at least 20 years. With a built-in annual increase of 6%, the payments will amount to at least $7.3 million; if Berg has a normal life span of 46 more years, as is expected by his doctors, the payments would amount to more than $45 million.

Another $10,000 a month will be paid for at least 10 years to David’s parents, or a total of $1.2 million, and $14,670 a month will be paid for at least 30 years to Berg’s lawyer. The lawyer, Richard Aldrich, 46, of Sherman Oaks, will receive a total of $5.3 million, according to court records.

Large malpractice settlements such as the Berg case may be a thing of the past in California. The case was settled two months before a state Supreme Court ruling that limits damages for pain and suffering in malpractice cases to $250,000, and also limits fees paid to lawyers. For example, a judge applying the new ruling in March reduced a jury award of $5.2 million to $256,600 for a Huntington Beach man whose doctors removed his healthy left kidney instead of his cancerous right kidney. Of the award, the extra $6,600 was for medical expenses.

Beyond the multimillion-dollar settlement, however, the Berg case is primarily a tragedy for a once-promising young man and a continuing heartache for his family.

The Victim

“Davey” Berg is the youngest of three children of Byron Berg, a lawyer, and Betty Jean Berg, a public health nurse for Los Angeles County. By junior high school, David’s size set him apart from his classmates, recalled brother, Brian, 28, who is two years older than David.

Mild-mannered but stubborn, David “marched to a different drummer,” Brian said. David was a star basketball player in the Downey Junior Athletic League who didn’t like the jock crowd at Warren High School in Downey, so he didn’t go out for the team, Brian said.

“He didn’t like all the cliques in high school. He knew all the long-haired freaks and at times you’d see him with the science guys and bookworms everybody else thought were weird,” Brian said.

Besides his many athletic interests, which included tennis, skiing, basketball and karate, David was a good student whose main interest was science, his brother said. Brian recalled David’s passion for astronomy. On clear nights, he said, David would put on his parka and sit up on the roof with his telescope, binoculars around his neck, staring at the constellations and “looking like the abominable snowman.” Brian said it did not matter to his brother that his appearance would startle a neighbor out walking his dog.

“He (David) was like a constant in my life,” Brian said.

David, however, had a nagging problem, a “retractile” testicle that caused him pain and discomfort, his lawyer said. David told his brother he wanted it “taken care of” before he returned to school.

The Tragedy

On Aug. 5, 1980, at 11 a.m., Margarita Keusayan, a part-time anesthesiologist at Downey Community Hospital working as a substitute that day, began anesthetizing David Berg. Within an hour, a man at his physical peak would suffer brain damage so severe that he would be left in a “near-vegetative state,” according to legal papers filed in Los Angeles Superior Court by the Berg family’s lawyer.

The tragedy, which, in an interview, Berg’s lawyer compared to “suffocation,” took place in front of two surgeons, two nurses and the anesthesiologist. During the operation, a third surgeon, two additional anesthesiologists and at least two other nurses would enter the operating room, but none was able to save David Berg.

Normal procedure for general anesthesia calls for the patient to be put to sleep intravenously with a drug such as Pentothal and then paralyzed with another drug for about five minutes to ease a plastic tube from mouth to lungs to control the patient’s breathing, according to anesthesiologists interviewed for this story.

According to court documents, this was the sequence of events:

Rapid Heartbeat

Berg developed a rapid heartbeat about 15 minutes after the tube was put in, and at 11:35 a.m., Keusayan switched Berg from anesthetic gas to pure oxygen. But at 11:38 a.m., Berg was showing an abnormal electrocardiogram, which measures heart contractions, indicating the patient was not receiving enough oxygen to support life.

About 11:40 a.m., Keusayan asked for help, and a nurse who entered the operating room noticed the patient’s face and lips were purple. But at 11:41 p.m., surgeon Ben T. Chaffey of Downey was exposing the patient’s testicle and continued to operate, according to the statement.

Berg’s pulse rate, which before the operation was 68, then dropped to as low as five beats per minute before one doctor, assistant surgeon James Holman, attempted cardiopulmonary resuscitation, which was “ineffective,” according to court papers. Finally, electrodes were used to shock Berg’s heart into a normal beat, while the tube remained in place.

In an interview, Aldrich, Berg’s lawyer, said that apparently the endotracheal tube was put too far down the patient’s trachea. In that position, the tube, which has an inflatable cuff at its end to hold it in place, closed off the bronchus (the tube that connects the trachea to the lung) to Berg’s right lung and partly obstructed the bronchus to the left lung, attorney Aldrich said.

Accused of Negligence

In papers filed with the court, Aldrich accused Keusayan, the two surgeons and the hospital of negligence for improperly anesthetizing Berg and for failing to revive him in time to prevent severe brain damage.

Keusayan, 46, of Long Beach, a doctor who was trained in her native Uruguay, could not be reached for comment. Her lawyer, Denise Taylor of Los Angeles, denied that the doctor was negligent and said that Keusayan was adequately trained because she passed a residency program in anesthesiology at UCLA in 1977.

Taylor said her client settled out of court because of the catastrophic nature of Berg’s injuries and fears that a sympathetic jury might have awarded even more than the $5-million out-of-court settlement.

After the Berg case, Keusayan voluntarily resigned from the staff of Downey Community Hospital, said hospital lawyer C. Snyder Patin of Los Angeles.

Surgeons Chaffey and Holman, both of Downey, could not be reached for comment and did not return telephone calls from The Times.

Chaffey’s lawyer, James Kjar of Los Angeles, said the Berg case was the most tragic malpractice case he had ever seen, because “you don’t find many 22-year-old kids turned into vegetables.”

‘Presumably Competent’

He said Chaffey was aware of Berg’s condition during the operation, but said the surgeon could not “abandon surgery at that point” and relied on “presumably competent” doctors and anesthesiologists who were in the room to help Berg.

He said his client settled out of court because, “given the gravity of the injuries we felt anyone in the operating suite at the time was exposed,” to a jury award that he estimated might have been as high as $15 million.

Chaffey, 53, a 1960 Harvard University graduate who interned at UCLA in 1961-62, remains a urological surgeon at Downey Community Hospital and the Gallatin Medical Group in Downey, which he joined in 1967.

Holman, 67, a 1943 graduate of the University of California, San Francisco, had an internship at New York Poly Clinic Hospital in New York City. From 1981 to 1984, he served on the Downey hospital’s board of directors as a representative of the hospital’s medical staff, said hospital lawyer Patin.

Holman’s lawyer, Richard Reinjohn of Los Angeles, said his client was not negligent, but that he settled because he “couldn’t take the risk” of a jury verdict that probably would have exceeded the liability limit of his malpractice insurance.

The Settlement

The settlement in the Berg case, paid by insurers for the defendants, includes $1.5 million from Downey Community Hospital, $2 million from surgeon Chaffey and Gallatin Medical Group, $975,000 from assistant surgeon Holman, and $500,000 from anesthesiologist Keusayan. Each amount was the maximum that the doctors and hospital were insured for, Aldrich said.

With another $150,000 from Puritan Bennett Corp., manufacturer of the anesthesia machine, the total came to $5,125,000. In the plaintiff’s statement, Aldrich had alleged that the anesthesia machine may have been defective and that it was confusing to operate because it did not have any warnings or instructions on it. J. Gary Hastings, a lawyer for Puritan Bennett, could not be reached for comment.

As part of the settlement, the hospital, doctors and manufacturer disavowed any negligence or liability, said Aldrich and hospital lawyer Patin, who said the hospital was “a victim of circumstances” because it was “in the wrong place at the wrong time.”

Money ‘Means Nothing’

“People almost think that winning this is like winning the Irish sweepstakes,” Brian Berg said. “It means nothing. The money can’t bring my younger brother back.”

His father, Byron Berg, said the award was a relief because it means the family will have enough money to pay David’s medical bills for the rest of his life. David’s care now costs $211,000 a year, according to court documents. Most of the medical bills so far have been paid by a family insurance policy, Berg’s father said.

Of the amount to be paid to his lawyer, Byron Berg said, “Certainly there’s a lot of money being paid to him, no question about that, but on balance, considering what we accomplished for Davey and for us, we think it’s reasonable.”

Aldrich said he spent more than four years working on the case, spending $70,000 of his own money. Had the case been lost, Aldrich pointed out, he would have received nothing.

Moved to Inglewood

As part of the settlement, the family in March moved David from Downey Community Hospital, where he had stayed for nearly five years after his original injuries, to Centinela Hospital Medical Center in Inglewood.

The day David left Downey Community Hospital, several nurses cried, said Patin and Berg’s father. David’s departure, however, was a subject of dispute between the family and the hospital.

Although the family maintains their son had become an “embarrassment” to the hospital, Patin, the hospital’s lawyer, said the hospital wanted David to leave because he was taking up a valuable bed in an acute-care facility. David is not an acute-care patient and could be taken care of in a nursing home or at the Bergs’ home if he had round-the-clock nursing care, Patin said.

Berg’s neurologist, Dr. Salvatore Danna of Downey, said in an interview that the hospital’s lawyer is correct. But the family maintains that David needs acute care because he is subject to pneumonia and fevers.

The Heartache

At Centinela Hospital, where physical therapists are trying to teach David to sit up, his parents continue to visit him daily.

“Hi, Davey, are you OK?” his mother, 61, said during a recent visit. She caressed his forehead and said to a visitor, “This is the way we like to see him” because on that day, her son’s body, which on occasion is wracked by spasms, was calm.

On a table in the room, a confident college fraternity man of 21 stares from a picture frame at the helpless man before him. David’s mother glances at the picture of what her son formerly was and says wistfully, “He was a man’s man. . . . What’s so hard to take is to look at him then and look at him now.”

“He was a delight,” she said, recalling the son that lives only in her memory, the son who in a recurring dream walks into the house and says, “Hi, Mom. I’m home.”

David’s father, 63, who gave up his Brentwood law practice in 1982 to take care of his son, is the most frequent visitor to the hospital room. Berg said that, unlike someone in a coma, his son is worse off because he is “aware of his plight.”

He added that, for a parent, the death of a child would be easier to take.

“With death there’s a finality and as time goes on the memory gets a little dimmer,” he said. “The essence of the tragedy is this, it’s a continuing one. It goes on and on and on.”