Judge Sends Malpractice Trial to Jury : Courts: Panel is instructed to only consider the case of cancer victim Joyce Ching as a routine wrongful death dispute.

A Ventura County jury Monday began deliberating the medical malpractice case of a Simi Valley woman who died of cancer with the judge instructing the panel to only consider the case as a routine wrongful death dispute.

Ventura County Superior Court Judge Ken W. Riley issued his narrow instructions after throwing out the most dramatic charges in the case last week.

Riley ruled on Thursday that attorney Mark Hiepler did not prove that doctors Elvin Gaines and Dan Engeberg, partners in Simi Valley Family Practice, were motivated by greed when they delayed sending an ailing Joyce Ching to a stomach specialist for three months during the summer of 1992. Ching died last year of colon cancer at the age of 35.

Even up to the last minute, Hiepler tried desperately to keep the greed argument alive in the trial, pleading with Riley to change his mind.

Hiepler argued that “money which was not spent on the medical care of the patients at Simi Valley Family Practice went directly into the pockets of the partners (including Gaines and Engeberg), thereby enriching the doctors every time they refused to refer a patient, or provide adequate medical care.”

But Riley was not swayed.

And what had originally been viewed as the nation’s first case to test the managed health care practice of capitation was reduced to an allegation of simple negligence.

Capitation is the practice in which health maintenance organizations pay physicians a set monthly amount to treat patients. The system provides financial incentives to doctors for not referring patients to specialists or for expensive supplemental treatments.

Attorneys for both sides could not comment on the ruling because Riley had earlier issued a gag order preventing discussion of the case outside the courtroom. But the case had been closely watched by medical and legal experts as Hiepler tried to prove the novel legal claim.

“This argument can be a great case,” said Thomas Hinkle, a Ventura medical malpractice attorney. “But the problem is finding the smoking gun.”

Hinkle said medical malpractice attorneys must produce hard evidence that accused doctors actually talked about and documented withholding medical treatment because of financial concerns to make the argument successful.

“Oftentimes, that’s impossible,” he said. “You don’t find a lot of that stuff being put in writing.”

Indeed, Gaines testified last month that he and his partners never talked about Joyce Ching’s insurance coverage during routine meetings called by the partners of his medical office to discuss such financial matters. Nor did Hiepler ever produce any documents indicating that finances played a role in Ching’s treatment.

The two doctors portrayed Joyce Ching as a demanding and sometimes difficult patient to handle, with a medical history that led them to believe she suffered from other ailments less severe than cancer. The two said that Ching and her husband, Dave Ching, 37, made vague requests to be referred to an unspecified type of specialist, leading to delays in getting a referral. Gaines and Engeberg are family care physicians.

Jim Agronick, the medical office’s chief executive officer, did concede that the office lost more than $1,000 in treating Ching.

Hiepler argued that the HMO’s payment system contributed to Ching’s death because capitation was “enriching the doctors every time they refused to refer a patient or provide adequate medical care.”

But Agronick also testified that Ching’s eventual treatment--including sending her to a stomach specialist--was not out of the ordinary and was an expected expense, offset by fees received by the office for signing up healthy patients.

And in the end, Riley ruled that Agronick’s testimony did not come close to proving that the doctors were motivated by greed.

Now the jury of eight men and four women is left to decide only if the two doctors committed malpractice in not detecting Ching’s cancer in time to save her life. Hiepler has asked for more than $600,000 in damages on behalf of his client, Dave Ching, and his 5-year-old son Justin.

Jurors are expected back today to resume deliberations.