Medical Duty Questioned at Gathers Trial : Jurisprudence: Physician says he was unable to get information about player’s condition.

A question of medical duty was the theme woven by all three attorneys as opening statements concluded and testimony began Tuesday in the trial involving the death of Hank Gathers.

Did the two doctors who treated Gathers the night of his death have a duty to him that extended beyond the emergency care they rendered at Loyola Marymount University the night of March 4, 1990, when he collapsed while playing in a basketball game and died shortly thereafter?

The question of duty, which will ultimately decide the outcome in this case, was also the underlying theme to the questions presented to Dr. Dan Hyslop, one of the three defendants in the case.

Hyslop, the staff physician at Loyola, which Gathers attended, took the stand for most of the afternoon Tuesday in Superior Court in Torrance and will continue his testimony today. Also testifying was the emergency room physician at Daniel Freeman Marina Hospital and the paramedic who attended Gathers at the gymnasium.

“The issue of whether either defendant had a duty to render emergency care on March 4 beyond that which would be classified under the Good Samaritan Statute is up to Judge (J. Gary) Hastings to decide,” said Craig Dummit, co-counsel for Hyslop. “But we will file a motion for a non-suit at the end of (the plaintiff’s) case.”

If Hastings decides a duty existed, then it will be up to the jury to determine if the duty was breached and caused the Gathers family members who witnessed the incident undue emotional distress, as they are claiming. If Hastings decides otherwise, the case could be thrown out.

Dummit claims that Hyslop was not involved in the medical care of Gathers from the time of his first collapse, Dec. 9, until the time of his death. He says that Hyslop, curious about what happened to Gathers after he helped him on the court, couldn’t even get information about Gathers’ condition.

“When Dan called Dr. (Michael) Mellman twice to find out about Hank, he was given no information,” Dummit said. “First of all, Mellman was told by Gathers not to give anyone but (Loyola trainer) Chip Schaefer information about his condition. Secondly, Mellman didn’t have information to give him.”

Mellman, one of several doctors who treated Gathers before his death, earlier was dismissed as a defendant in the suit.

Marshall Silberberg, co-counsel for Dr. Benjamin Shaffer and Shaffer’s employer, the Kerlan-Jobe Orthopaedic Group of Inglewood, also says his clients were left “out of the loop” of Gathers’ care during that time. Shaffer is an orthopedist who was the doctor-on-duty at the game March 4.

But Bruce Fagel, the attorney for the Gathers family, is trying to prove that Hyslop, Kerlan-Jobe and Shaffer had a medical relationship with Gathers and should have had a preset emergency plan should Gathers collapse again. At the centerpiece of Fagel’s case are videotapes showing Hyslop attending Gathers both times he collapsed and Loyola’s defibrillator, which was purchased on the recommendation of Hyslop after Gathers’ first collapse.

In Dummit’s opening remarks Tuesday, he rebutted Fagel, who had ended his opening statement Monday with the question, “Who killed Hank Gathers?”

Dummit concluded his statement to the jury by saying that Fagel had “framed the issues very simply” for them.

” . . . Mr. Fagel has chosen the wrong stage and the wrong actors to portray his self-created drama,” Dummit said. “This case is not about who killed Hank Gathers. It’s about what killed him. And the answer is cardiac disease.”