Gathers Lawsuit Is Dismissed : Jurisprudence: Case against two doctors ends when family members don't appear to testify.

TIMES STAFF WRITER

In an unusual conclusion to nearly 2 1/2 years of legal action, the trial dealing with the death of Hank Gathers, a former Loyola Marymount University basketball star, was dismissed by a judge Wednesday after the family refused to testify and abandoned the case.

The dismissal of the case in the third week of the trial is the final chapter in what had become one of the most publicized medical malpractice suits involving an athlete in Los Angeles history.

Judge J. Gary Hastings dismissed the suit in Superior Court in Torrance at the request of the family's attorney, Bruce Fagel, after the family stopped talking with him and appeared to indicate that it had no interest in pursuing the case. However, because the family did not give Fagel written authority to dismiss the case, Fagel had to appeal to Hastings to make the ruling.

"I'm sorry it (the trial) had to end like this," Hastings said in his chambers afterward. " . . . This type of case, with this much publicity, should have ended with a verdict.

"Mr. Fagel has lived up to the highest level in the tradition of this business. He proceeded with the case (after the first portion of the suit settled) when other lawyers may have said, the heck with it."

Only one issue and three defendants made it to trial from a complex multimillion dollar suit filed shortly after Gathers death, March 4, 1990.

That issue, brought by Gathers' mother, Lucille, and brothers Derrick and Charles, claimed that the two doctors who attended to Gathers courtside the night he collapsed while playing in a game were negligent and caused the family members emotional distress.

The sudden end to the trial Wednesday brought the dismissal of those charges against Dan Hyslop, 36, Loyola's staff physician in its student health center, and Ben Shaffer, 34, the doctor-on-duty at the game from the Kerlan-Jobe Orthopaedic Group, which was also named in the suit.

"I am pleased that it is over," said Hyslop, the only defendant in court Wednesday. "It won't stop me from trying to render emergency care just because I got sued."

When reached in Washington D.C, Shaffer, who is an assistant professor of orthopedics at Georgetown University, told his attorneys he was "absolutely thrilled" and feels vindicated, but would rather have had a verdict.

Despite the fact that the defense had yet to put on its case, the eight of the 12 jurors polled by The Times said they were leaning toward the defendants.

"I can see cases against his (Gathers) heart doctor or others, but not these two doctors," said Allen Haney of Torrance, the only man on the jury. "How can you blame them when they were trying to save someone's life?"

Fagel, struggling to explain what happened to bring Wednesday's dismissal, described an emotional roller-coaster in his dealings with Lucille Gathers, who decided in the second week of trial that she did not want to testify.

Fagel said efforts to communicate with the family were riddled with problems. He said on two occasions Derrick, who lives in Panorama City, quit coming to the trial because of incidents that Fagel would not divulge. Once, Fagel said he sent Derrick a telegram telling him to show up or the trial wouldn't continue.

Fagel said that after jury selection he was concerned about his clients chances because of the makeup of the jury.

"Looking at this jury and the discussions we had with them, there were no blacks and they indicated that they did not know sports, so this was not our best jury," Fagel said. The Gathers are black.

As a result, Fagel said that after opening statements he tried to settle with the defendants. He said that he asked Lucille and Charles Gathers, who live in Philadelphia, to waive their claims so that he could try and secure a settlement for Derrick. They agreed, but when his settlement efforts failed, Fagel said that Lucille had her mind set on not testifying because of the emotions involved.

Without Lucille's testimony, Fagel's case was weak. Fagel told Derrick he was willing to continue with him but advised him that should they win the case he might receive only $50,000. Derrick gave Fagel verbal permission to dismiss the case and did not show up in court to testify Tuesday.

Derrick Gathers did not return a phone call from The Times and Lucille Gathers said Tuesday, when reached by telephone, that she would not discuss the situation.

Fagel, who alluded that a medical problem was one of the reasons the Gathers family did not want to testify, confirmed that Lucille Gathers was concerned about stress on Derrick, who has an irregular heartbeat, but one that is not considered life-threatening or related to Hank Gathers' condition.

"In our last conversation on Wednesday, Lucille said she's not going to lose another son over this trial," Fagel said.

In the portion of the suit that was settled, Lucille received a total of $895,000 in a wrongful death suit claim from Loyola and the cardiologist who treated Gathers, Vernon Hattori. Aaron Crump, Gathers' 8-year-old son, received $1.505 million.

Fagel confirmed that Lucille netted $447,000 from the settlement after attorney's fees of $200,000 and other legal expenses, but was upset with him because of about $40,000 in expenses that were deducted. That $40,000 expense involved the support of Derrick Gathers after Hank's death so he could complete his college education in Los Angeles.

"When Hank died, (Loyola booster Albert) Gersten cut off the money he was paying for Hank's apartment," Fagel said. "Lucille wanted to stay in Hank's apartment, so I paid for it. I've never done that before, even though it is done. But I justified it because I promised the family that I would see to it that Derrick would get his degree so I fronted the money.

"Derrick said he had one semester left, but it went on longer than that. Lucille didn't want to talk about it, and I ended up caught in the middle of Derrick and Lucille. Finally, Lucille said to stop paying, and I did. Those are the costs she was upset about.

"There are two ways you can react, emotionally and rationally, and Lucille reacts emotionally. How do you get her to understand that Hank wouldn't have been able to play basketball had he lived and she wouldn't have received anywhere near that amount of money.

"What it comes down to is that Lucille had gotten her money, but even though she got paid, she was still upset with me."

Throughout the course of the suit, which at one time involved 14 defendants and 29 attorneys, it was alleged that Gathers was supported by a Loyola booster, Gersten, who denied the charge. That would be a major NCAA violation. When that charge was reported in The Times, the NCAA said that it would see what evidence came out at trial.

After the dismissal, Loyola President Thomas P. O'Malley issued a statement that said in part: "Hank will always be part of LMU and never be forgotten as a fine person and an outstanding young man. For those involved in the lawsuits, we hope they will look back on their experiences as part of the healing process that must follow all tragedies."

THE JURY: Eight of the 12 jurors indicated the Gathers case was unfolding favorably for the defendants when it ended prematurely Wednesday. C9

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