Dramatic Statements Open Gathers Trial

TORRANCE — The attorney for the family of Hank Gathers ended his opening statement by challenging the jury to answer a question that has lingered in some minds for nearly 2 1/2 years.

“Who killed Hank Gathers?” Bruce Fagel asked the jury, as the trial of two doctors accused of negligence in the death of the former Loyola Marymount basketball star began Monday in Los Angeles County Superior Court in Torrance. It is expected to last through Labor Day.

Gathers, who was being treated for a rapid heartbeat, collapsed March 4, 1990, while playing in a postseason game at Loyola and was pronounced dead at Daniel Freeman Marina Hospital less than two hours later. An autopsy listed the cause of death as cardiomyopathy, a heart disorder.

Although the civil suit has been pared dramatically in both the causes of action and the number of defendants from the original suit, Fagel’s opening remarks chronicled in detail the events in the months before Gathers’ death.

Few of the defendants previously involved will be entirely exempt from the trial, in which four members of the Gathers family who were at the game allege that the doctors who treated Gathers courtside the night he died were negligent, causing them undue emotional distress.

The suit that remains is brought by Gathers’ mother, Lucille; brothers Derrick and Charles, and an aunt, Carole Livingston Gilmore. It is against Dr. Benjamin Shaffer, the doctor-on-duty at the game; his employer, Kerlan-Jobe Orthopaedic Group of Inglewood, and Dr. Dan Hyslop, an independent contractor for Loyola.

In addition, the Gathers family has accused Shaffer of intentional infliction of emotional distress, saying his conduct in moving Gathers outside the gymnasium before using the school’s defibrillator was outrageous. A defibrillator is used to shock a heart back to a normal rhythm.

“The doctors wanted their day in court and that’s why they did not participate with the others in a settlement,” said Marshall Silberberg, who represents Shaffer and Kerlan-Jobe.

Silberberg contends that his clients, Hyslop and a couple of others who attended to Gathers, “worked their tails off to save Hank Gathers’ life,” he said. “They never gave up. But Hank had an underlying heart condition. He died despite the heroic efforts of these men.”

Fagel’s and Silberberg’s opening remarks took all day. Hyslop’s attorney, Craig Dummit, will deliver his opening statement today, followed by the first witnesses for the plaintiffs--the emergency room nurse from the hospital and a paramedic who assisted Gathers March 4.

It is becoming clear that Judge J. Gary Hastings’ most significant pretrial ruling was granting the inclusion of testimony and evidence surrounding Gathers’ medical condition before his death.

Gathers collapsed Dec. 9 during a game, was hospitalized and tested and returned to play Dec. 30. Aside from alleging negligence courtside, Fagel will try to prove a breach of duty by Hyslop, Kerlan-Jobe and Shaffer, alleging they had no preset emergency plan should Gathers collapse again. But Silberberg contends that his clients are orthopedists and provided a free service to Loyola in that type of care.

“This case is about the apportionment of responsibility (for Gathers’ death), and it will try all of the issues, even though only (three) defendants remain,” Fagel said. “ . . . It’s no secret they (the three remaining defendants) are not the only ones (responsible).”