Frustacis Settle Suit Over Birth of Septuplets

A Riverside couple and their three surviving septuplets on Tuesday settled their medical malpractice and wrongful-death lawsuit against a Los Angeles infertility clinic for up to $6 million.

Then an attorney made the startling announcement that the mother, Patti Frustaci, is pregnant with healthy twins after taking the same potent fertility drug that she took before conceiving the nation’s first septuplets in 1984.

The settlement with the Tyler Medical Clinic was reached over the strenuous objection of Dr. Jaroslav Marik, who treated Frustaci with the fertility drug Pergonal.

On Tuesday, Marik was dismissed from the landmark lawsuit, which attorneys say is the nation’s first court test involving the standard of care in fertility treatment.

The doctor was removed from the suit because he would not agree to a settlement. He has said he was confident that a jury would vindicate him, but his insurance company was apparently unwilling to take that risk. Attorneys for the Frustaci family were seeking $12 million to $14 million in damages.

As terms of the agreement were read in Santa Monica Superior Court, Patti Frustaci wept quietly. Outside court, Frustaci described an “overwhelming” sense of relief after five years of litigation coupled with the stress of caring for three premature infants, who have health and developmental problems.

Superior Court Judge David Rothman, who approved the settlement, had met with the Frustaci children--Patti, Richard and Stephen--on Monday to ascertain for himself their disputed condition. “The amount of money being paid is just under all the circumstances,” the judge said Tuesday. “It is obvious to me . . . that the children are in need of this and would benefit from it.”

The husband, Sam Frustaci, an industrial products salesman from Riverside, was with the children on Monday but did not attend Tuesday’s hearing.

Frustaci attorney Browne Greene described the 5-year-olds as severely impaired, with mental retardation and health problems, while the doctor’s attorney, Craig Dummit, said only Stephen will have serious lifelong problems.

The septuplets were delivered by Cesarean section at St. Joseph Hospital in the City of Orange. One was stillborn. Three others died within 19 days. The Frustacis also have an older son, Joseph, born 14 months before the septuplets after Marik treated Patti Frustaci with Pergonal.

The Frustaci lawsuit contended Marik failed to properly monitor treatments and should not have completed the fertilization process, given her condition that month.

During a news conference after the brief hearing, Greene said, “This is a very happy day for the Frustaci family.” Then he announced that Patti Frustaci is two months’ pregnant with a due date of Dec. 30.

Despite her struggle in caring for the surviving septuplets, Frustaci, a 35-year-old former schoolteacher, said she underwent further fertility treatment at another clinic in Southern California. “I desire to have another normal child,” she said.

Under terms of the settlement, the Frustacis will receive a $450,000 payment immediately. Beginning in August, the children will begin to receive monthly payments until their 18th birthdays. Stephen will receive $1,000 a month, Richard $600, and Patti, the healthiest from birth, $400. Those payments total $2.16 million, which is guaranteed even if the children die.

After 18, the monthly payments for Stephen increase to $3,000. Richard will receive $2,000 and Patti $1,000 until death. If they reach a normal life expectancy of 71.2 years for males and 78.2 years for females, the settlement will amount to more than $6 million.

The payouts will be made through the purchase of an annuity expected to cost more than $1 million in 1990 dollars, though Marik’s attorney said it will cost less.

Marik was not in court when the settlement was announced, but he later met with reporters. He said he felt like a student who had prepared for five years for an exam only to have it canceled. Marik said he recommended that Patti Frustaci take additional tests before fertilization. But he said Frustaci declined, citing the cost and inconvenience--an allegation she denied.

Marik said he did not interpret the settlement as a vote of no confidence in his treatment, but a practical dollars-and-cents decision not to risk the uncertainty of a jury verdict. The silver-haired infertility pioneer said he was not responsible for Frustaci’s multiple births. “Why do you have to have somebody at fault? “ he asked. “These things can happen.”

The settlement talks--which took place over three tense days as jury selection started Monday--were unusual, according to attorneys for both sides and legal experts.

It is rare for an insurance company to negotiate a settlement without the consent of the insured, said medical malpractice attorney Bill Newkirk, who is not connected to the case. Newkirk said he had seen the situation only once before in his 16 years of experience and said it indicated to him that the plaintiff’s case was strong.

Marik, a co-owner and employee of the clinic, had blocked settlement talks since the case was filed in October, 1985. The way was cleared for settlement when a provisional clinic director recently was appointed in another court where Marik and his longtime partner, Dr. Stanley Friedman, are litigating over the dissolution of their practice.

The court-appointed director voted with Friedman to allow settlement discussions. Marik’s attorney, Dummit, was not involved in the talks and at most times paced the halls with reporters awaiting word of the negotiations.

Despite the settlement, Marik will not have a blemish on his record because he was dismissed as a defendant. But Marik said that publicity over the lawsuit has harmed his practice. He held up a crammed appointment schedule for 1984, then compared it to his sparse current schedule.

The Riverside family has been in the limelight since Frustaci’s pregnancy was announced in early 1985. People around the nation became involved in the waiting game to see if the pregnancy would continue until the fetuses had a chance of survival. Reporters and camera crews stood watch at St. Joseph Hospital in Orange, where Patti Frustaci was a patient for months.

Despite the recommendation of her obstetrician that the fetuses had a slim chance of surviving until term, Frustaci, a Mormon, declined to have an abortion, for religious and moral reasons.

After they were born, the watch shifted to Childrens Hospital of Orange County and became a death watch as the premature infants, tubes and ventilators covering their tiny bodies, struggled to survive.

Patti Frustaci said this week that she will never get over the deaths of her four children. Outside her house, she said, she has planted four rose bushes--colored peach, violet, yellow and red--one for each dead child. She takes the blossoms to their graves.

BACKGROUND

Pergonal is a commonly used fertility drug made of the same hormones that naturally stimulate production of follicle cells in the ovaries. Since it bypasses a regulating gland in the brain and works directly on the ovaries, it increases the risk of multiple births. While only one follicle cell, from which a ripened egg emerges, usually matures in fertile women, multiple egg-producing follicles are stimulated in women treated with Pergonal.