Medical Malpractice News
Crippled kid's mom: "Every day I think of what might've been".
Her child, awarded $11.3 million in a malpractice suit, needs constant care.
Jeshua Pineda-Flores is 10 1/2 years old but wears diapers because he cannot care for himself. It'll be that way for the rest of his life.
Jeshua was 2 months old when he suffered cardiac arrest at Tripler Army Hospital while awaiting surgery for an unrelated condition.
A prolonged period of oxygen deprecation caused permanent brain damage and left him severely disabled, placing a lifetime burden on his family. They were recently awarded an $11.3 million malpractice judgement by U.S. District Judge David Ezra.
"Every day I think what might've been," Elizabeth Pineda-Flores, the boy's mother, said through her attorney Michael Livingston. "Every day I remember.
"Jeshua, he's happy mostly," she said he needs care "every minute, just like a little baby. He cannot control any of his movements. The best he can do is roll over from his tummy to his back but he cannot roll from his back to his tummy. He cannot talk, but he tries sometimes; you can tell he's trying so hard. But he communicates so much with his eyes."
In a written statement, the commander of Tripler Hospital, Brig. Gen. Warren Todd, expressed sympathy for the family but said: "Based on the evidence in this case, we continue to deny liability for this unfortunate event. Medical complications, while rare, do happen in all medical facilities, civilian as well as military. It is very important to remember that cases such as this are the exception rather than the norm."
Jeshua cannot control his bladder so he has to wear diapers. He has to be fed every 2 1/2 hours, and each feeding takes a long time because he eats very slowly.
"It's hard finding someone to help with Jeshua," his mother said. "In 10 years, I've found only one person I really trust outside the family. The rest of the time, we take care of him. It's hard on the family, very hard sometimes, but we all love him and he really needs us, so we try hard.
"It's been so long waiting for help," she added. "Maybe now, it will come and make our life better. No way money is going to heal Jeshua, but his life can be better."
Jeshua's parents, who immigrated to the United States from Guatemala in 1982, are living on the mainland and caring for Jeshua, his older brother and younger sister.
The government has 60 days to appeal Ezra's ruling, but Todd said a decision regarding appeal has not yet been made. The lawsuit filed by Jeshua's parents alleged that throughout the afternoon of March 9, 1987, a monitor triggered numerous high-cardiac alarms that were ignored or disregarded by the medical staff at Tripler.
The judgement is the largest compensatory injury award in Hawaii and the second largest medical malpractice judgement against the U.S. government, says co-counsel Mark Davis.
"We're waiting to see if the government will appeal," Livingston said. "Ten years is a long time and we feel that ought to be enough for the family."
In June 1995, the 9th U.S. Circuit Court of Appeals reversed a September 1992 ruling by federal Judge Sam King that Tripler was not negligent.
The appeals court, however, ruled the district court erred by misconstruing the claim for negligence.
King should have ruled on whether the "one nurse and two nurses aides on duty ... failed to respond in a minimally acceptable manner to the repeated and increasingly frequent `high heart' alarms generated by Jeshua's cardiac-respiratory monitor prior to his arrest, and that proper response to even one of these frequent monitor alarms would have prevented Jeshua's catastrophic brain injury," the appeals court said.
Because the district court concluded that loose leads were causing the alarm, the judge never had to decide "whether the failure to respond to the high heart alarm caused the injury that rendered Jeshua permanently brain damaged," the appeals court said.
The case was sent back to U.S. District Court not for retrial but for computation of damages. King recused himself and the case was reassigned to Ezra, who directed Magistrate Francis Yamashita to determine damages.
Yamashita recommended $12.4 million but Ezra trimmed $1.06 million from the total on grounds that the plaintiffs are not entitled to receive damages from March 9, 1987 to May 31, 1997 for attendant care they did not purchase.
When released, the money will be placed in a trust fund for Jeshua that will be administered by his parents with the court acting as an overseer.
Medical experts advised the court that as of March 1990, Jeshua's life expectancy was 68.7 years because he has 20 percent lung capacity than normal and will be prone to respiratory complications.
"The ruling considers the fact that the family might not always be there to care for Jeshua," Livingston said.
About $2.5 million of the total is for emotional distress to Jeshua and his parents, who witnessed the events that led to their son's injury. They testified their frustrations mounted each time they heard the monitor's alarm go off.
contact Mark Davis