THE DEATH OF HANK GATHERS : Taking a Look at Legal Issues Surrounding Gathers’ Death : Malpractice: Lawyers raise questions, but have few definitive answers until all of the facts are in.

Lawyers who have followed developments in the Hank Gathers case say they see several key elements in any litigation that might result from the death of the college basketball star.

Gathers, a Loyola Marymount athlete under medical treatment for an irregular heartbeat, collapsed during a game at Gersten Pavilion Sunday night and was pronounced dead 1 hour 40 minutes later at Daniel Freeman Marina Hospital.

Lawyers experienced in education law and medical practice cases talked Wednesday about three elements they see central to the case:

--Was Loyola striving to be well-equipped when it purchased a defibrillator for its trainer and put it behind its bench during basketball games, or was the school anticipating a cardiac event by Gathers?

--Was Gathers fully advised by his cardiologist of the risks he faced in playing basketball and did he sign a waiver indicating he understood the risks? Further, should the cardiologist have informed Gathers’ coach of risks associated with his condition?

--The legal concept of foreseeability, a central one in many malpractice cases, would come into play in the event of a case filed by Gathers’ heirs.

All the lawyers interviewed Wednesday said their comments were intended to be general in nature, that anything said about the case before release of the autopsy findings should be considered preliminary.

“One thing that strikes me about the case is the school saying it purchased a defibrillator after his first fainting spell in December and then having it available at the bench during the games,” said Mark Susson, of Alevizon, Smith, Susson and Palafox, a Santa Ana law firm.

“Is this a case of the school making sure their trainer is well-equipped or is it a case of waiting for the bubble to burst?”

Loyola trainer Chip Schaefer said in a Times story Wednesday that the defibrillator was purchased on advice of the school’s medical and administrative staff, that it was purchased primarily for Gathers. Schaefer added that the defibrillator was available for spectators as well as players.

Key evidence in any malpractice case, according to another lawyer, would be the contents of the cardiologist’s file on Gathers.

“His records will contain almost certainly a detailed summary on what he advised Gathers to do,” said Leonard Mandel, one-time UCLA law professor and an experienced malpractice attorney.

“Sometime after that first fainting spell Gathers had in December, his cardiologist had to have said to himself: ‘If this young man continues to play and dies, people will look at me and wonder why I cleared him to play. Therefore, I want my records to show that I (fully advised) Hank on what the risks were.’

“I’d be shocked if somewhere in his Gathers chart there isn’t a signed waiver, a tape recording or a note that says something to the effect of: ‘ . . . on this day Hank and I discussed what risks are involved with his case if he returns to intercollegiate basketball. . . . ‘

“I would be shocked if there isn’t something like that in his file.

“Also, here’s an area that might open up: Should the cardiologist have notified (Coach Paul) Westhead of Gathers’ condition, or is that part of doctor/patient confidentiality?

“That’s a real gray area of the law, an open question in many cases . . . whether or not the doctor/patient privilege still exists after a patient dies.”

Stuart Biegel, who teaches education law at UCLA, said the concept of foreseeability is sure to arise if a malpractice case results.

“One thing sure to be looked at (if litigation results) is foreseeability,” he said. “How foreseeable was it that something like this would happen? That would be central to any litigation in this case, it seems to me.

“Also, it should be remembered that courts are less and less willing these days to grant large awards, what with the insurance crisis we have in California.

“An example might be the victims’ rights portion of Proposition A that passed on the 1982 state ballot. The authors intended it to make it easier to find public schools liable for injuries sustained on school grounds.

“It hasn’t been successful, however. In two major cases at the appeal level, both courts found for the school district. I see that as a trend in California, and anyone following this case should keep that in mind.”

Would a waiver signed by Gathers hold up in court?

“If Gathers was fully informed of all risks, and if he had opportunity to reflect on what the waiver meant . . . those questions would be looked at it court,” said Henry Lewin, who has defended numerous physicians against state-brought charges of unprofessional conduct.

“Waivers are like prenuptial agreements. Once you get in court, do they really mean anything? Some do, some don’t.”

Julie Palafox of Alevizon, Smith, Susson and Palafox in Santa Ana said malpractice cases all have a common thread.

“In every malpractice case, each side will present a doctor saying exactly the opposite of what the other side’s doctor says,” she said.

Alan Rothenberg, general counsel of the Los Angeles Clippers and also president of the California State Bar, said the extent to which Gathers was following his cardiologist’s treatment would be a key element in a malpractice action.

“If he (Gathers) was doing exactly what the doctor ordered, then right there you’re into the area of whether or not the right medication or treatment was prescribed,” he said.

“And if the one report I saw is true, that he’d (Gathers) reduced the amount of medication with the advice and consent of his doctors, then there’s something to be looked at . . . a major factor.”