Boy Received ‘Worst of Medicine,’ Lawyer Says as Civil Trial Begins

In a surgery representing the “worst of medicine,” a 5-year-old Canoga Park boy who was in the hospital for routine surgery suffered brain damage and will never exceed the intellectual level of a 10-year-old, an attorney for the boy’s parents argued Friday.

Ronald and Rebecca Thomas are suing the Medical Center of Tarzana and five San Fernando Valley physicians, seeking several million dollars in damages for the June, 1982, treatment of their son, Scott, now 8.

‘Simplest’ Surgery

In his opening statement to a Van Nuys Superior Court jury, the family’s attorney, Bruce G. Fagel, asserted that Scott went into the hospital for the “simplest type of surgery” and came out “a newborn baby with significant injury to his brain.”

Fagel said that Scott received a “meat ax” dose of anesthesia and insufficient oxygen during an operation to correct an undescended testicle. As a result, Fagel said, the boy’s heart stopped, preventing oxygen from reaching his brain and causing permanent neurological damage.

Court records in the case show that, a month before the surgery, Michael Winston, the anesthesiologist assigned to the boy’s case, was placed on probation by the state medical board for purported incompetence in a 1979 operation that led to the death of a teen-age boy.

More than two hours after the surgery on the Thomas boy, the Thomases were informed that their son had suffered complications and might die, Fagel said. The boy remained comatose for two weeks and had to relearn to eat, walk and talk, he said.

The five doctors being sued are Michael Winston, the anesthesiologist; Burton Fink, the boy’s pediatric cardiologist; Leonard Skaist, the lead surgeon; Sanford Polse, an assistant surgeon, and Seymore Hudosh, an anesthesiologist who assigned Winston to the case.

Winston’s attorney, David J. O’Keefe, said Friday in his opening statement to the jury that Winston followed “accepted standards of practice” in treating Thomas and that the cause of the cardiac arrest remains a mystery.

‘Appropriate Dosage’

“Maybe God is the only one who really knows what happened in this case,”O’Keefe said.

O’Keefe said that Scott was given “a totally appropriate dosage of anesthesia.”

Court records show that Winston already has agreed to pay the Thomases $500,000, although he has admitted no liability in the case. O’Keefe told the jury that a settlement had been reached before trial, but he did not disclose the figure. He said Winston decided to proceed as a defendant in the trial in an effort to clear his name and protect his reputation.

The information about Winston’s past problems will not be introduced before the jury unless it finds that he was negligent in the Thomas case, Judge G. Keith Wisot said.

The state Board of Medical Quality Assurance confirmed that Winston was accused and admitted to incompetence in the 1979 incident and placed on three years’ probation, effective May 17, 1982. In that surgery, 16-year-old Jeffrey Schwartz suffered heart failure and brain damage during nose reduction surgery after Winston administered anesthesia and left the operating room before the surgery was completed, state records show.

Attorneys for the other four physicians and the hospital will give their opening statements to the jury when the trial resumes Wednesday. The trial is expected to last two to three months.

O’Keefe said complications during surgery may have resulted from a heart defect that was present in Scott at birth.

Born with a defective heart valve, Scott underwent an operation in San Francisco when he was 3 months old to replace the malfunctioning valve with a plastic one. During surgery when he was 2 years old, doctors installed a larger valve because he had outgrown the first, attorneys for both sides said.

Twenty years ago, a child born with such a heart defect nearly always died shortly after birth, O’Keefe said. Because of that, medical knowledge about people with such an abnormality is “extremely, exceptionally limited.”

O’Keefe said there are many possible explanations for the cardiac complications that Scott suffered during surgery. The boy may have had a reaction to drugs, “electrical” problems with his heart, or his heart may simply have been too weak to sustain the shock of surgery, he said.

Became a ‘Healthy Boy’

Fagel argued, however, that Scott proved during two “major heart surgeries” that he was strong enough to undergo a process as simple as the testicle surgery. He emerged from the two heart operations with no significant complications and “went on to become a healthy young boy,” Fagel said.

But O’Keefe told the jury that the two heart surgeries were not an accurate test of how Scott’s heart would respond during another operation because he was aided by a heart-lung machine during those operations.

Fagel maintained that the doctors were well aware of the boy’s heart condition before the testicle surgery and had cleared him for the operation, assuring his parents that there was no cause for worry.

Fagel also alleged that, besides making mistakes during surgery, the doctors failed to adequately test and monitor Scott in the recovery room, despite evidence that his brain was swelling.

Doctors ‘Stood Around’

Any chance for Scott to come out of the incident in a better condition than he did was lost in the recovery room, Fagel said, where “all these doctors stood around looking at each other, wondering what was happening and not doing anything about it.

“They were hoping he would wake up.”

Fagel said Scott will require at least $3 million for therapy and care during the next 70 years and will lose an estimated $1 million in earnings because he will be unable to hold a job. Fagel said he also will ask the jury for an unspecified amount in damages to compensate the family for its pain and suffering.

“Scott will never, can never, totally recover from his injuries,” Fagel said. He said the boy’s ability to move, speak and see has been damaged irreparably.

O’Keefe told the jury, however, that Fagel had “grossly exaggerated and overstated” Scott’s handicap and his financial needs. He said testimony will show that Scott “has done considerably better” than early predictions.

Damages Trial Could Be Held

If the jury finds negligence on Winston’s part, a second trial will be held to determine whether the hospital should be assessed punitive damages for assigning Winston to the case, Wisot said. The judge ruled earlier this week that the two issues should be weighed separately to prevent prejudicing the jury with the information about Winston’s background.

The state medical board allowed Winston to continue practicing medicine during his probationary period but ordered him to complete medical courses and pass an oral exam in anesthesiology, a board spokeswoman said.

Court records show that, in December, 1983, Winston was named chief of anesthesiology at the Veterans Administration Medical Center in Sepulveda.

Having satisfied the terms of his probation, Winston’s license was restored in good standing earlier this year, the medical board spokeswoman said.

However, the Thomas family asserts that Winston might not have served as lead anesthesiologist on their son’s case had the hospital followed its own procedures and reviewed his record after receiving notice of the board action.