Irvine Doctor Found Not Negligent in Brain-Damage Case

An Irvine pediatrician was not negligent in his treatment of a 4-month-old baby who suffered permanent brain damage after a 1980 vaccination for diphtheria, pertussis and tetanus, a jury decided Monday.

The Orange County Superior Court jurors rejected a request by the parents of the child, Juan Huerta, for $10 million in damages against Dr. Stephen Fibel.

The decision “exonerates” Fibel, according to his lawyer, Mark S. Rader.

Jury foreman Glenn R. Croix of Costa Mesa agreed. “The decision we reached was that he wasn’t negligent in the care of the patient,” Croix said.

The verdict will be appealed, according to Peter J. McNulty, lawyer for the Huertas.

Juan, now 6 years old, sustained severe and permanent brain damage. He cannot move his limbs, and he suffers from a seizure disorder. He requires round-the-clock care, estimated to cost $60,000 a year.

Serious Side Effects

The vaccine manufacturer, Connaught Laboratories Inc. of Seattle, settled its end of the lawsuit for $482,000 before the trial, said John R. DiCaro, co-counsel for Fibel. The vaccine is known to have had serious side effects in a small number of cases.

Feliciano and Guadalupe Huerta of Santa Ana brought Juan to Fibel’s office one day after Fibel had administered the shot. The infant was lethargic and pale in color.

After a five-minute examination, Fibel directed his receptionist, Juanita Palomino, to accompany the child and mother to Childrens Hospital of Orange County in Orange in a car driven by the father. The central issue in the case was whether Fibel should have accompanied the child himself or called paramedics.

The Huertas were in heavy traffic about 10 minutes from the hospital when Juan stopped breathing. Palomino testified that she was helpless, because she had no knowledge of cardiopulmonary or mouth-to-mouth resuscitation. The infant was revived in the hospital emergency room after 35 minutes there.

Evidence conflicted over how sick Juan was when Fibel first saw him.

‘Prudent Medical Judgment’

“The jury was completely satisfied that the doctor exercised sound, prudent medical judgment,” Rader said. “The tragedy was that even if he had called paramedics, (Juan) would have arrested that much further from the hospital.”

McNulty, attorney for the Huertas, said Superior Court Judge Prentiss Moore excluded seven expert witnesses he had planned to call to testify. McNulty claimed that Moore had been “abusive” of the plaintiff’s case, which he said he will cite in his motion for a new trial.

McNulty acknowledged that he had rejected an offer of $500,000 to settle the case before trial. Medi-Cal payments covering Juan’s institutionalization have totaled $270,000, according to court records.

“I don’t think the little boy got a fair shot,” McNulty said. “The doctor who’s truly responsible for the injury is not paying, so the people of the State of California will have to.”

In final arguments, DiCaro contended that the Huertas’ claim rested on a slender thread of Palomino’s memory, recorded five years after the events.

DiCaro urged jurors to avoid hindsight and “look at this case through the eyes of Dr. Fibel at the time.”

Palomino testified March 30 that the Huertas told her that the baby had suffered from continual vomiting and diarrhea for 16 hours. Had Fibel known, he would have sent the baby to the closest emergency room, DiCaro argued.

Records kept by Fibel and Childrens Hospital show no evidence of vomiting or diarrhea. DiCaro insisted that Fibel’s decision--to get the infant to the hospital, where tests could determine the cause of the problem--was correct based on the information he had at the time.

“It would be a simple thing to say he made a mistake in judgment. But that’s not the law,” DiCaro said. “The doctor does not guarantee that everyone who comes to his office is going to get healthy or well.”