Charges May Mean Risk for Hospital

Murder charges filed this week against respiratory therapist Efren Saldivar could pose a potentially serious liability threat to Glendale Adventist Medical Center, but legal experts said the unusual facts of the case could limit the amount that families of the alleged murder victims could recover.

Hospital officials declined to comment publicly on their defense in the five lawsuits pending against them. But they said the hospital had “acted very responsibly in investigating the initial rumor” that Saldivar might have killed patients “and turning it over to police.”

The hospital’s conducting that investigation could be central to the litigation, legal experts said. If attorneys for the families could persuade a jury that the hospital had failed to conduct a sufficiently thorough investigation, they would have grounds to seek damages for negligence. Moreover, they might try to seek punitive damages against the hospital. Although rarely awarded in medical malpractice cases, punitive damages can vastly increase jury awards.

“It’s hard in California to get punitive damages,” said Dr. Harvey F. Wachsman, a physician and president of the American Board of Professional Liability Attorneys. “However, if they could prove the hospital knew or should have known that [Saldivar] was doing these deaths. . . . The hospital has lots of liability here.”

Making that sort of case would be particularly important for the families because the ages and poor health of nearly all of Saldivar’s alleged victims would greatly reduce the amount of damages the families would normally be able to collect.

“No one’s gonna get rich,” said Chris Nicoll, an attorney who represents three families, one of whose loved one has been declared by police to be a homicide victim.

Saldivar, 31, of Tujunga, was formally charged Wednesday with six counts of murder, which could result in the death penalty, for allegedly injecting the paralyzing drug Pavulon into elderly patients at Glendale Adventist from December 1996 to August 1997.

He appeared briefly in Glendale Superior Court on Thursday afternoon, but his arraignment was delayed until Jan. 26 after he agreed to waive his right to have a preliminary hearing within 10 days. The arraignment was rescheduled for Jan. 26 at the downtown Los Angeles Criminal Courts Building.

In court Thursday, Saldivar appeared somber in an orange prison jumpsuit, his hands handcuffed behind his back, as he agreed to the postponement of his arraignment.

Saldivar had to be prodded to speak up by Deputy Dist. Atty. Al Mackenzie in consenting with a “yes.” The delay was requested by the Los Angeles County public defender’s office, which will represent Saldivar.

Watching from the back of the small courtroom, quietly weeping, was Cynthia Oliver, the great-niece of Myrtle Brower, one of the six former Glendale Adventist Medical Center patients whom Saldivar is accused of killing.

“I guess this is because it feels really real, you know,” said Oliver, 43, a Mission Hills resident.

The civil lawsuits stemming from Saldivar’s alleged killings are aimed primarily at Glendale Adventist, a part of Adventist Health, a network of 21 hospitals and other businesses with 1999 revenues of $2.3 billion. The families also have sued Saldivar but have virtually no hope of recovering money from him because he is indigent.

Officials said the hospital has adequate insurance to cover potential losses from civil litigation.

“The hospital is very strong,” said spokesman Mark Newmyer. “We believe we are going to fare very well in all this.”

“If we had known then what we know now, certainly we would have acted differently,” he said. “We had one piece of information and we couldn’t corroborate it.”

Glendale Adventist called police in February 1998 after receiving a second tip that Saldivar might be hastening the deaths of some patients. That was almost a year after a hospital investigation “found no substantive facts or evidence to support the [initial] rumor.”

Saldivar told Glendale police in 1998 that he was an “angel of death” who had killed as many as 50 patients. He was arrested and held for two days but released because prosecutors said they needed independent evidence to verify his claims. He retracted his story shortly afterward but was rearrested Tuesday and accused of murdering at least six people.

The fact that the hospital did investigate the rumors is likely to be central to its defense in the civil cases.

“It’s a better argument than if they heard about these things and did nothing,” said Chris Anderson, a Seattle lawyer who defends medical providers. “You are entitled to make an error in judgment.

“If a bunch of 25-year-olds begin dying,” he said, “that’s easier to figure out than if 80-year-olds are dying.”

The civil cases have been stalled so far because plaintiffs’ lawyers have been unable to obtain key evidence from the continuing criminal investigation. Lawyers for the families filed suit within one year, beating a statute of limitations, but have made little progress because most evidence has been kept secret by police during the three-year criminal investigation in which 20 bodies were exhumed to look for traces of paralyzing drugs.

No Access to Autopsies

Plaintiffs’ lawyers have still not gained access to evidence considered critical to their cause, such as autopsy reports.

“We could not do what we really needed to do,” attorney Bruce Kokozian said Thursday.

He is representing the survivors of 68-year-old Armenouhi Tatulian, whose death is not one of the six that police have declared homicides. But that hasn’t deterred Kokozian, who said he believes that other deaths may have been related to Saldivar, although police have not officially linked them.

Kokozian said prosecutors charged Saldivar with the cases that they must prove under the tougher criminal standard of “beyond a reasonable doubt.”

“I’m sure they chose the safest, most bulletproof ones,” he said.

By comparison, civil lawsuits have a lower burden of proof.

At least eight cases have been filed against Saldivar and the hospital, court records show. More suits could be filed, but they would have to survive a potentially difficult legal challenge that new claims are barred by the one-year statute of limitations.

Of the suits filed, two were dismissed by judges before Saldivar was arrested. Another was settled for $60,000 by the survivors of 75-year-old Sabi Asatryan, whose death has since been ruled a homicide.

A judge is expected to rule later this month on whether he will consolidate all the pending civil cases.

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Times staff writers Paul Lieberman and Richard Fausset contributed to this story.