INTRODUCTION. Appearing on behalf of Claimants was their counsel: Law Offices of. , Esq. Appearing on behalf of Respondents was their counsel:

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3 M. SCOTT RADOVICH SBN 0 RADOVICH MEDIATION GROUP Chorro Street San Luis Obispo, California 0 Telephone: (0) -00 Facsimile: (0) -0 scott@radovich.com ARBIT RATOR IN RE THE ARBITRATION BETWEEN: ARBITRATION NO. 0 vs. and Claimants, FINAL ARBITRATION DECISION,and Responden~. 0 INTRODUCTION The above matter was arbitrated on March nd through March th, on May th through th, and on May th in San Jose, California, before M. Scott Radovich, Arbitrator. Appearing on behalf of Claimants was their counsel: Law Offices of ' by, Esq. Appearing on behalf of Respondents was their counsel: &, by, Esq. Testimony was taken from various witnesses, via personal appearance, video conference, teleconference and by recorded deposition, as well as by expert witness reports. Additional evidence marked and submitted were Arbitration Exhibits for Claimants, numbers through, and Exhibits for Respondents, letters A through G. Of the Exhibits identified, all

4 were admitted into evidence except for Claimants',, 0 (omitted),,,,,, and. The matter was concluded and considered closed as of May, 0 upon submission of the final arguments. Pursuant to Rule of the Rules for Member Aribtrations, the final award must be served within fifteen () business days following the closing of the Arbitration Hearing. This is the Final Arbitration Decision in this matter. DISCUSSION was a patient for many years preceding the events giving rise to his 0 claim in this matter. Of note during that time were medical record entries detailing specific complaints: //000 At age, right upper quadrant pain, pain radiating to the right shoulder, difficulty breathing due to the pain (A-0) //000 Left-sided face swelling (A-0) //000 Chest hurts, SOB (shortness of breath), left arm weak, dizziness (A-0) An EKG was ordered and given (A-0) //00 Chest tightness with no symptoms upon exertion, a family history of diabetes, stroke and heart disease were noted, another EKG was ordered (A-0) 0 /0/00 Chest pain, abdominal pain, left upper quadrant to left shoulder pain (A- ) //00 Family history: positive for diabetes and stroke, negative for CAD (Coronary Artery Disease) (A- & ) //00 Office visit with Dr. : severe headaches, but negative for chest pain and SOB, no changes in family history (A-) Up to that point, Claimants do not assert that there were any breaches of the standard of care by the physicians. Those claims begin in June 00.

5 0 0 The first contact between and a physician against whom medical negligence is alleged was on June, 00 with Dr., who practices primary care at as an internist. The presentation of symptoms was noted as: CHEST PAIN, TIGHTNESS - Primary, and ABDOMINAL PAIN (A-). Dr. noted that the patient complained of stomach and chest tightness for the last week, and that the chest tightness was across the chest, bilaterally. It was noted that the chest tightness happens when the patient exercises, and has to take a deep breath. However, the patient denied chest pain, DOE (dysnea on exertion), orthopnea, PND (paroxysmal nocturnal dyspnea) or leg swelling at the time of the examination (A-). Dr. was aware of this patient's problem list which included high blood pressure, high cholesterol and pre-diabetes. However, each of these, according to her exam and review of the prior records, was under control. Dr. was apparently unaware of the patient's family history of diabetes, stroke and possibly heart disease (the latter of which the above prior records show as ambiguous as to CAD). Although Dr. did not consider "ruling out ACS (Acute Coronary Syndrome)", she did order an EKG and chest x-ray to rule out cardiac causes of "chest pain" (, p. ). The indication of "chest pain" in the diagnoses section of A- was, according to Dr., a "pre-populated entry" and was not her diagnosis (although again on A-, the primary diagnosis was "CH EST PAIN, TIGHTNESS"). The EKG was read as normal. She was of the medical opinion that the chest tightness was related to a respiratory issue, and therefore did not deem it necessary to rule in or out ACS. By June 0, 00, Dr. had by this date determined that the likely cause of the patient's symptoms was pleural effusion (A-0), and the patient reported the chest

6 tightness and SOB was better. She advised him to follow up with his PCP (Primary Care 0 0 Physician). It is asserted that Dr. breached the standard of care by not ordering serial EKG's, a stress test or referring the patient to a cardiologist. Those failures were testified to by Claimants' expert witness Dr., who testified as an expert in both internal medicine and cardiology, and by expert witness Dr., who testified as an emergency and acute care expert. The diagnosis of pleural effusion was then carried forward to the appointment with 's PCP. Dr. saw the patient on July, 00 but the diagnoses by that time were SIDE EFFECT OF MEDICATION- Primary, HYPERTENSION, GASTRITIS, ABDOMINAL PAIN (A-). Testing of the patient's cardiac enzyme, Troponin, was ordered o that same date by Dr.. It is not clear why, although it can be reasonably assumed that this was a precautionary follow-up to the prior visit with Dr.. However, the result was within normal limits (A-). Dr. conducted a physical exam and assessment, including Cardiovascular, which was negative for chest pain. Again, Claimants assert that Dr. breached the standard of care in the same manner as Dr., five days earlier. It was not until 0 when the next series of encounters with were claime to be breaches of the standard of care in his treatment by physicians. It is important t note that had at least seven other visits, exams and tests with and requested b physicians from August 00 through December 0. At no time did any of these visits, complain of chest pain, shortness of breath or other symptoms termed b Claimants' experts as "anginal equivalents."

7 0 0 There were essentially four encounters in 0 that require scrutiny. The first was January, 0, a telephone appointment with Dr..A that time, the patient complained of epigastric discomfort off and on for two days, with nause and vomiting. The primary diagnosis was Gastritis. A clinical appointment was offered, but th patient declined. He was advised to call back if the symptoms worsened. Apparently, they di not. The next encounter spanned a two day period: March -0, 0. The initial contac on March th was by from to his PCP Dr., which read in part, "I hav been having tightness and a hard time taking a good breath for the past days. I am havin them on the right side of my chest going up to my shoulder and to the right side of my bac shoulder blade... I have had this type of pain before but its not been so hard to breath." (A ) Dr. 's response that same day was also by ''Thanks for the . Please d chest x ray and EKG. Then book an appointment if the symptoms persist." (A-) Dr. apparently in the order for the chest x-ray, indicated "Chest Pain" under comments (A-0). 0 that same day, had a telephone appointment with Dr. with th primary diagnosis of "Chest Pain" (A-). The patient underwent the chest x-ray the next day which was compared to the prio chest x-ray from June, 00 and the current x-ray was read as, "No acute cardiopulmona findings or significant interval change." (A-) There was no EKG and there was n explanation in the records or in the testimony as to why this was not done either by the patient, or followed up by the physicians.

8 0 0 On March 0, 0, Dr. spoke with over the telephone. She noted tha the patient had "constant soreness at right side chest below the nipple area. Worse when lyin down or taking deep breath. o [read as "no"] shortness of breath. Better today." (A-) Dr. 's primary diagnosis was "CHEST PAIN, ATYPICAL." (A-) Her stated medical advic or plan was, "Call or return to clinic prn if these symptoms worsen or fail to improve a anticipated." (A-) Claimants' experts opined that these encounters, both with Dr. and Dr., breached the standard of care as the symptoms were consistent with ACS, and require "stat'' EKG's, biomarkers, stress test and aspirin. Criticism was also directed at the failure t diagnose the patient's symptoms for this encounter. The next encounter occurred on May, 0 in the Emergency Department at in San Francisco while was on his way to work. stopped at a fir station with left facial numbness, and was transported by ambulance to the emergency room. He thought he might be having a stroke, but in the emergency room, he denied foca weakness, fevers, vomiting, headache, neck pain, previous vascular events. He reported tha he became panicked when he noticed the numbness and started to breath fast and felt hi heart rac ing (A-). He was examined and treated by Dr., the emergenc medicine physician on duty at the time. Dr. conducted a physical exam which include a finding of heart palpatations and shortness of breath (A-). The initial impression wa facial numbness, rule out stroke, possible parotid inflammation and anxiety attack (A-). A EKG was ordered which was read by a cardiologist as negative and with no significan changes compared to the 00 EKG. A non-contrast CT scan of the head was also obtaine without any abnormalities (A-). Among the recommendations on discharge was for th

9 0 0 patient to take a daily baby aspirin (A-}. Of note, after the patient was observed in th emergency department, he stated he felt better and "thinks he had a panic attack which he ha had many times in the past." (A-) He was advised to follow up with his PCP in one week, advice that apparently was not followed. Dr. did not believe that this was related to an cardiac event and based upon his physical examination of the patient, did not consider thes symptoms to be consistent with ACS - with strokeffla being the primary concern. After bein in the emergency room for some hours, was, according to Dr., improved and no longer had SOB or palpatations, and no longer in distress. He was discharged. Dr. was criticized by Claimants' experts for not working up ACS, and orderin either serial EKG's or a stress test. Although there was testimony elicited regarding an appointment with Dr. September 0, there was no specific expert testimony by Claimants' experts that Dr. breached the standard of care in that visit. The next and last encounter in 0 occurred on December with Dr. was seen by Dr. for flu symptoms, but the morning before the exam, th patient ed Dr. that "he had a very hard time because I cough, the cente of my chest has a sharp pain when I cough, [sore] throat and it hurts when I swallow." (A- The patient wanted cough medicine. He then presented to Dr. with "INFLUENZA UK ILLNESS" with reports of coughing for two days, fever for two days, sore throat and pain in th chest (A-). Dr. treated the patient for the flu symptoms and ruled out pneumonia (A 0). The Claimants' expert witnesses believed Dr. breached the standard of care b not recognizing the report of chest pain as a symptom of ongoing ACS.

10 0 0 was not seen by a physician again until his heart attack of April, 0 which occurred while he was playing basketball at his health club. Finally, the medical records also noted that subsequent to this heart attack, presented to the emergency department with the following symptoms: //0 Sudden onset of chest/epigastric pain and nausea, denies SOB (A-) //0 Right-sided chest pain at right nipple, worse with inspiration (A--). LIABILITY The pertinent testimony presented by Claimants on the alleged breaches of the standard of care by Ors., Dr., Dr., Dr. and Dr. was from Dr., board certified in both internal medicine and cardiology. Although Dr. also testified as to the standard of care as to these physicians in the acute care setting, that opinion is colored by his lack of qualifications to state such opinions. However, Dr. 's testimony that each visit on its own may not be a breach, taken as a whole, the care and treatment was "egregious" is a theme that also appears to run through Dr. 's testimony. Dr. 's opinion on the breach of the standard of care of Dr. was deemed to be qualified and competent. It is determined that Claimants met their burden of proof that Dr. on June, 00 breached the standard of care. The patient's past and current problem list coupled with specific complaints of chest pain or tightness, that it radiated bilaterally across the chest, that there was pain upon exercise along with shortness of breath, should have alerted her to at least work up ACS at that time, and rule it in or out. Dr. was apparently unaware of the patient's family medical history which would have been another indicator to perform sue

11 0 a work up and to rule out ACS. Key components that were present, which are not subsequently reported again by this patient, are the chest pain or tightness bilaterally, increasing upon exertion along with difficulty taking a breath (assumed upon exertion as well). Either serial EKG's or a stress test should have been ordered by Dr.. While Dr. was certainly justified in believing that the patient's symptoms may be caused, in part, by a suspected pleural effusion, she should have included ACS as part of her differential diagnosis. This determination of a breach of the standard of care is based upon the testimony of Claimant's expert witness Dr.. Therefore, the Claimants met their burden of proof on the claimed medical negligence of Dr. The subsequent encounter with Dr. in July of 00 was not deemed to be a breach of the standard of care. There was nothing specific in the symptoms presented to her that would have required her to perform an ACS rule out at that time. She was within the standard of care to believe that the prior symptoms reported and worked up by Dr. were related to, and apparently confirmed as, pleural effusion. Dr. is not legally responsible by inheritance for the breach by Dr., and it would be pure speculation that an ACS 0 work up by Dr. would have engendered further scrutiny (and discovery of CAD) by subsequent treating physicians. Dr. 's work up did include checking the patient's cardiovascular status and ordering cardiac enzyme testing, which was normal, and therefore she met the standard of care at that time. The testimony of Dr. that there was no breach of the standard of care for this encounter is accepted, and Claimants failed to meet their burden of proof as to the alleged medical negligence of Dr. for this encounter. The next event of January, 0 involving Dr. did not result in any breach of the standard of care. While both Claimants' experts opined that this was an

12 0 l 0 l opportunity missed to perform an ACS rule out, there was nothing in this encounter to suggest that such a work up was warranted or required based upon the information presented to Dr.. The testimony of Dr. that there was no breach of the standard of care for this encounter is accepted, and Claimants failed to meet their burden of proof as to the alleged medical negligence of Dr. The s and telephone consults of March and 0, 0 involved both Dr. and Dr.. The impression of "atypical chest pain,, which involved patient complaints of tightness on the right side of the chest, going to the right shoulder and shoulder blade could, in a vacuum, be considered atypical angina. However, under these circumstances, there was no breach of the standard of care. As stated in Willard v. Hagemeister ( ) CAd 0, a physician is only required to exercise ''that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances." (Emphasis added.) Dr. thought this was pleural or musculoskeletal related, and not angina related. She assumed that the specific symptoms, including difficulty breathing, were positional and mechanical related, and thus some type of muscular strain. was told to obtain an x-ray and EKG, and to book an appointment if the symptoms persist. He did not obtain an EKG nor did he follow up with an appointment. While in hindsight one might criticize either or both Dr. and Dr. for failing to work up ACS for this patient, based upon these circumstances, the standard of care was not breached by either as they each exercised judgment in the follow up care recommended to this patient at that time and under those circumstances. The testimony of Dr. that there was no breach of the standard of care for these encounters is accepted, and 0

13 0 Claimants failed to meet their burden of proof as to the alleged medical negligence of either Dr. or Dr. The emergency room encounter with Dr. on May, 0 did not result in a breach of the standard of care. The symptoms presented were clear and fairly unambiguous. thought he was having a stroke and understandably panicked as a result. His hea rate and breathing were related to that and not to any acute ischemia or other cardio event. Dr. provided reasonable care and treatment in this emergency setting to. The testimony of Dr., a qualified and competent expert witness in emergency medicine, that there was no breach of the standard of care for this encounter is accepted, and Claimants failed to meet their burden of proof as to the alleged medical negligence of Dr. 0 The final encounter of December, 0 with Dr. is not even a close call. presented with classic flu symptoms. That he had a sharp pain in his chest when he coughed was clearly related to a respiratory issue and not to ACS. Dr. 's treatment was reasonable and competent. The testimony of Dr. that there was no breach of the standard of care for this encounter is accepted, and Claimants failed to meet their burden of proof as to the alleged medical negligence of Dr. CAUSATION "... But while I'm playing the game itself, I do not recall having the chest pain while playing. Q: Same question but now with regard to what you described as chest tightness, where you talked about chest tightness before. Again, during that time frame from 00 to 0 while

14 l 0 0 actually engaged in the physical activity of playing basketball, did you ever experience that chest tightness that you experienced on other occasions? A: No. Q: And then same question but now I am asking you about shortness of breath. You indicated there were times when you felt shortness of breath. I want to know if ever while you were physically engaged in playing basketball, you ever experienced what you described as shortness of breath?" A: No." (Deposition of, Sept., 0, :-; :-.) The fact that did not experience chest pain, chest tightness or shortness of breath from 00 until his heart attack in 0 while engaged in a physically stressful activity is, unfortunately for him, telling. As the only event for which a causation analysis is necessary is June, 00, in order for Claimants to prevail they must prove to a reasonable medical probability that the medical negligence of Dr. caused injury and that this specific failure to meet the standard of care on that date is causally related to the heart attack of April, 0. It is not. "The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony..." Bromme v. Pavit () CAth,. The Claimants' expert witness in cardiology and causation, Dr., did not testify in a manner that established to a reasonable medical probability that had detectable cardiovascular disease in June 00. Dr. 's testimony on causation carried even less weight and is not considered in this Decision.

15 Rather, the testimony of Respondenfs expert witness in cardiology, Dr., was more persuasive on several fronts. First, the lesion that erupted almost four years later in 's LAD (left anterior descending) artery was likely so small that it would not have generated a positive finding on a stress test. Indeed, even an angiogram (as admitted by Dr. ) would likely have not indicated a significant blockage at this site - due, possibly, to vascular remodeling as explained by Dr.. Second, the lesion itself' 0 0 was apparently soft, not hard, based upon the catheterization films post heart attack and, as such, was not formed to a sufficient degree to be detected in 00 (or even in 0 for that matter). Third, the size of the blockage as estimated by Dr., based upon the "cath films" and the "cath balloon" inserted through the area of blockage, was likely 0 to 0% but certainly less than 0% at the time of the heart attack. Even Claimants' expert had to acknowledge that a stress test would not indicate a problem unless the blockage was 0% or higher. Although Dr. opined that the blockage was 0% or more in the time frame of 00 to 0 (and likely more than that just before the heart attack), the evidence simply does not support that opinion, and specifically the lack of symptoms while was vigorously exercising runs contrary to that opinion as well. The fact that on only one occasion, in June 00, reported chest pain/tightness and difficulty breathing upon exertion leads one to conclude that his subsequent symptoms were not due to any detectable ischemic heart disease or ACS. For someone who was very much in tune with his symptoms, that never experienced and therefore never reported chest pain, chest tightness or shortness of breath while playing basketball from 00 to 0 is an indicator of the likelihood that a stress test would have been negative

16 during that same time frame. Indeed, he did not engage in any other activity during those year as strenuous as basketball (Deposition :-). Therefore, Claimants failed to sustain their burden of proof to demonstrate to a reasonable medical probability a causal connection between the medical negligence of a physician and the unfortunate heart attack suffered by on April, 0. CONCLUSION This Final Arbitration Decision is in favor of Respondents and against Claimants. 0 May, 0 Nothing in this arbitration decision prohibits or restricts the enrollee from discussing or reporting the underlying facts, results, terms and conditions of this decision to the Department of Managed Health Care. 0

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