Bungling, Errors of State Employees--It’s Payoff Time

Samuel Florez, a former inmate at Soledad State Prison, spends his days watching television at a convalescent home in Fresno. He cannot walk or speak and requires nursing care 24 hours a day.

Florez was sentenced to three years in prison for robbery and kidnaping. But now he is confined to a wheelchair for life because of a bungled ulcer operation while he was behind bars.

More than nine years after Florez’s surgery resulted in permanent brain damage, he is still awaiting payment of the $1 million judgment he was awarded by a jury--the largest amount ever won by a prisoner in California for injuries suffered while incarcerated.

Florez is not alone in waiting for his money.

The Legislature is expected to act soon on legislation that would pay Florez’s claim and settle more than a dozen other lawsuits arising from the mistakes, blunders and improper actions of state employees.

Paying for such bungling has become an annual event in Sacramento--but one that usually attracts little attention.

This year’s legislation would provide $7.6 million to pay for such embarrassing matters as the suffocation of an inmate by prison guards, the improper confinement of a deaf boy in mental institutions and discrimination by the state against its own employees on the basis of race and sex.

“The Legislature hates these bills,” said Deputy Atty. Gen. Jeffrey J. Fuller, who helps prepare the legislation and push for its passage.

The cases that reach the Legislature are just a handful of the more than 15,000 claims pending against the state at any given time, Fuller said. They result either from jury awards against the state or settlements of suits involving clear-cut cases of improper action by state employees.

“We don’t settle nuisance suits,” Fuller said. “The ones we’ve settled we’ve settled because we think they have merit. A million dollars sounds like a lot of money, but it’s not money that’s going to benefit the individuals (excessively). It’s going to keep the individuals alive.”

Usually, the legislation itself offers little clue to the nature of the carelessness that is costing the state hundreds of thousands--or in some cases millions--of dollars.

But reports prepared for legislators by the office of Legislative Analyst Elizabeth G. Hill provide glimpses into some of the worst cases of negligence and misconduct by state employees.

For example, Michael Myreholt was serving a 15-year sentence for second-degree murder at San Quentin State Prison in 1981 when he underwent routine knee surgery. After the operation, Myreholt complained that the cast on his leg was too tight but prison doctors did nothing to relieve the pressure for more than two days. By then, his leg was so damaged it had to be amputated below the knee.

As a result, Myreholt will receive $250,000 from California taxpayers--payable when he is released from prison.

Assemblyman John Vasconcellos (D-Santa Clara), who is carrying this year’s legislation, maintains that such payments are the natural result of running a large operation.

Annual Accounting

“They are a regular part of any enterprise’s annual accounting,” he said. “Anyone who has employees has actions that lead to lawsuits.”

At times, the payment of the state’s claims can get caught up in partisan wrangling among lawmakers, delaying payments for many months.

At the end of the legislative session last year, a bill providing compensation for more than a dozen victims of the state was blocked by conservative lawmakers, who were incensed that the measure also would cover the court-ordered payment of more than $500,000 in legal fees to the American Civil Liberties Union.

Now, Gov. George Deukmejian is resisting passage of this year’s measure because the $7.6-million tab is big enough to eat up his entire estimated reserve of $3.2 million and plunge the state into a deficit. The Deukmejian Administration is asking the Legislature to hold up the bill--which includes most of the claims from 1988--until after the new fiscal year begins July 1.

Despite the pleas of Democrats who argued that the state should pay its bills promptly, the Senate sidetracked the measure on Thursday by a vote of 25 to 10, two votes short of the two-thirds majority needed. At the same time, the Senate agreed to take up the matter again after lawmakers return from their Easter vacation.

Payment Nearly Certain

“The people involved in these claims shouldn’t quibble over the time in question because there is the assurance that they will be getting their claims paid,” said Jesse R. Huff, the governor’s finance director.

Several of the incidents that will cost the state money received considerable attention in their communities at the time they occurred.

Todd Hart, a former football player at Cal State Long Beach, was paralyzed during a game in 1984 when the face guard on his helmet dug into the turf, breaking his neck. At first, Hart was a quadriplegic, but later he regained some use of his arms.

The office of Atty. Gen. John K. Van de Kamp concluded that the state shared part of the responsibility for his injuries because his spinal cord may have suffered additional damage when university staff members removed him from the field.

And so, Hart will receive $2 million from the state to settle the lawsuit he filed. He also will be paid $2 million more from the manufacturer of the helmet he was wearing.

Deaf Man’s Claim

To resolve another notable case, the state will pay $750,000 to Alberto Valdez, a deaf man who has been kept in state mental institutions most of his life.

Valdez was misdiagnosed as retarded when he was 8 years old and confined in Fairview State Hospital in Orange County, where his family was under the mistaken impression that he was receiving an education.

Over the last 30 years, he was transferred to and from Atascadero State Hospital, Camarillo State Hospital and Metropolitan State Hospital. He also lived for a total of about 18 months in board-and-care homes.

To settle a suit Valdez filed 10 years ago, the state has agreed to give him enough money to become self-sufficient. The $750,000 payment will cover the cost of his care and tutoring and provide him with a lifetime stipend of a minimum of $30,000 a year.

It would cost more, the attorney general’s office concluded, to keep Valdez institutionalized for the rest of his life.

Insight Into Bargaining

The settlements included in the legislation offer an insight into the bargaining that attorneys conduct over the value of a human life or devastating injuries. In some instances, the cost to the state of a wrongful death is much less than the price of a permanent crippling injury.

Take the case of Yale Wilson.

In October, 1986, Wilson was serving a life sentence without the possibility of parole for murder, kidnaping and robbery when prison guards at the California Medical Facility at Vacaville attempted to move him to a different cell.

Wilson would not cooperate so the guards shot him with a stun gun, sedated him with medication and wrapped him in a sheet that covered his face. He died of asphyxiation.

The Vasconcellos bill includes $125,000 to settle a wrongful death suit brought by Wilson’s family.

By contrast, Samuel Florez, the former Soledad inmate, was awarded $1.15 million after he narrowly escaped death but suffered permanent brain damage during his treatment for a perforated ulcer.

Had Stomach Pain

Florez’s problems began when he went to the prison infirmary complaining of stomach pain. Prison doctors, however, did not determine the nature of his problem. A day later, he needed emergency surgery.

Florez was taken to the nearby Natividad Medical Center where an operation was successful. But after the surgery, a breathing tube that connected Florez to a ventilator was dislodged from his trachea.

For 40 minutes, a resident physician at the hospital attempted to replace the tube even though he was not properly trained to do so. Deprived of oxygen, Florez stopped breathing and suffered a heart attack. Doctors were able to revive him, but only after the lack of oxygen had caused permanent brain damage.

In 1982, a jury found that the state was 80% responsible for the injury because prison doctors had not properly diagnosed Florez’s illness to begin with. Natividad Medical Center was found 20% responsible and paid Florez more than $200,000.

The state appealed the case and lost in 1987. With interest, the state’s share of the award has now ballooned to more than $1,625,000.

Can Provide for Children

The money will allow Florez to pay for his own medical care, rather than continuing to rely on Medi-Cal. It also will allow him to provide for his two children, who are living in foster homes, said his attorney, Norman Saucedo.

Despite his inability to speak, Florez is able to communicate with others at the convalescent home, Saucedo said, and it is evident that he experiences different moods.

“He asks for things from the nurse through sign language,” the attorney said. “He recognizes his family and smiles at them. He becomes depressed and happy. But he needs constant care. He’s going to be there for the rest of his life.”

Of the 20 separate claims in the Vasconcellos bill, the Florez payment is the only major one awarded by a jury. The other large claims were settled by Van de Kamp’s office in an effort to reduce the cost to the state.

In a number of cases that were settled, the state’s legal position was undermined by the admission of mistakes or wrongdoing by the employees involved.

“You settle them because you know you’re going to get shellacked if you take them to a jury,” Fuller said.

Sexual Harassment Case

The state has agreed to pay $750,000 to five former female prison guards who had filed suit claiming they were the victims of sexual harassment over a seven-year period at the Deuel Vocational Institution near Tracy.

Some of the 40 male prison guards and officials named in the suit have acknowledged that they engaged in discrimination against the women, Janette Mills, Laura McKendry, Cjorli L. McKendry, Donna Cole-Kaufman and Vicki Gentry, according to the legislative analyst.

“The acts that have been admitted and are in dispute are deemed to be of a serious nature that creates a compelling picture of harassment and discrimination,” the legislative analyst concluded.

Even when the state is at fault in a case, state records show, the attorney general’s office is often able to settle for less than a jury might award because the claimants are anxious to avoid protracted litigation.

For example, the state agreed to pay $150,000 as compensation for the death of Humboldt County Sheriff Gene L. Cox, one of three people killed in 1982 by a mental patient who had been released from Napa State Hospital 18 days earlier.

Sent to Hospital

The patient, Clarence McCutcheon, had been sent to the state hospital by Humboldt County officials after he threatened the manager of the trailer park where he lived and a psychiatrist at a local mental health facility where he was temporarily confined.

Doctors at Napa State Hospital determined that McCutcheon was dangerous and sought to keep him in custody. But they released him after 14 days because the trailer park manager and the psychiatrist would not sign affidavits saying that McCutcheon had threatened them.

Upon his release, McCutcheon returned to Eureka. During an argument at another trailer park, he shot Cox and two others before he was shot and killed by Eureka police.

The sheriff’s family charged in its lawsuit that state doctors had been negligent in releasing McCutcheon. According to the attorney general’s office, the family might have won between $750,000 and $1 million at a trial.

“Based on the extreme difficulty in defending the state’s liability and the significant risk of a higher jury award, a settlement was entered into for $150,000,” the legislative analyst reported.