Complaint,Petition: MARY AYERS VS. KAISER FOUNDATION HOSPITALS ET AL

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                                1’ ADR-106

‘Neil D. Eisenberg, Esq. [SBN 058034) and addrass }: FOR COURT USE ONLY
[Eisenberg Law Office
582 Market Street, Suite 912
Sen Fraps, CA 94104 = son erent ~ x
E-MA ADDRESS (Optlnay: Cisenberg.info@gmail.com F t fr, =
ATTORNEY FOR (Nemo): Mary Ayers Superior Court of California
County of San Francisco
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco
street Aopaess: 400 McAllister Street
uauina aooress: Dept 302 Law and Motion JUL 2 4 202
civy ano zp cove: San Francisco, 94102 sin pee Ups git
enancu name: Civic Center Courthouse CLERIGOF re
PETITIONER: Mary Ayers BY: Pw

RESPONDENT: Kaiser Foundation Hospitals, et al., BOWMAN ug”

PETITIONTO [_] conFinRm [_] corrRecT [7] vacaTE
CONTRACTUAL ARBITRATION AWARD

Jurisdiction (check all that apply):

[1 Action is a limited civil case
Amount demanded Ed does not exceed $10,000
exceeds $10,000, but does not exceed $25,000 CASE NUMBER:
[7] Action is an unlimited civil case (exceeds $25,000) ge F - 2 0-~ 5 i 7 Lé 1

NOTICE: You may use this form to request that the court confirm, correct, or vacate an award in an arbitration conducted
pursuant to an agreement between the parties that is subject to Code of Civil Procedure section 1285 et seq, and that does
not involve an attorney-client fee dispute. If you are requesting court action after an attorney-client fee arbitration award,
please read Alternative Dispute Resolution form ADR-105, Information Regarding Rights After Attorney-Client Fee
Arbitration.

ST

|

1. Petitioner and respondent. Petitioner (name each):
Mary Ayers

alleges and requests relief against respondent (name each): . .
Kaiser Foundation Hospitals, a non-profit corporation, Kaiser FoundationHealth Plan, Inc., a non-profit

corporation, and The Permanente Medical Group, Inc., a professional corporation, Leslie Aiken, M.D., and
Meaghan Lynch, M.D.,

2. Contractual arbitration. This petition requests the court to confirm, correct, or vacate an award in an arbitration conducted
according to an agreement between the parties that is subject to Code of Civil Procedure section 1285 et seq.
3, Pending or new action.
a. [_] Acourt case is already pending, and this is a petition filed in that action. (If so, proceed to item 4.)
b. (#) This petition commences a new action. (If so, complete items 3b(1) through 3b(4).)
(1) Petitioner's capacity. Each petitioner named In item 1 Is an Individual,
(1 except petitioner (state name and complete one or more of the following):
(a) () 1s a corporation qualified to do business in California.
(>) [] is an unincorporated entity (specify):
(c) [_] isa representative (specify):
(@) (1) is (specify other capacity):
os (2) Respondent's capacity. Each respondent named in itam 1 Is an Individual,
ue {] except respondent (state name and complete one or more of the following):

>.
a {c) [] isan unincorporated entity (specify):
* (4) (] is a representative (specify):
(e) [1] ts (specify other capacity): attachment

Page 1 of 3
Fo Approved far Olonal Use PETITION TO CONFIRM, CORRECT, OR VACATE Code of Cl Procdir, 81295 at 65
Aa Now Janay 2008) CONTRACTUAL ARBITRATION AWARD

(Alternative Dispute Resolution)r
PETITIONER: Mary Ayers “7 GaSe NUMBER:

RESPONDENT: Kaiser Foundation Hospitals, et al.,

3.b, (3) Amount or property In dispute. This petition involves a dispute over (check and complete ail that apply):
(a) [7] the following amount of money (specify amount): $ 6,000,000.00 Six Mill
(>) [57] property (if the dispute involves property, complete both of the following):
(i) consisting of (Identify property in dispute):
(li) having a value of (specify value of property in dispute): $
(4) Venue. This court Is the proper court because (check (a) or (b)):

(2) [7] this is the court in the county in which the arbitration was held.
{b) (J the arbitration was not held exclusively in any county of Callfornia, or was held outside of California,
and (check one or more of the following):
() (7 thisis the court in the county where the agreement was made.
(i) [_] this is the court in the county where the agreement is to be performed.
(ii) [) the agreement does not specify a county where it is to be performed and was not made in any
county in California, and the following party resides or has a place of business in this county
(name of party):

(iv) [—) the agreement does not specify a county where It is to be performed and was not made in any
county in California, and no party to this action resides or has a place of business in California.

4, Agreement to arbitrate.
@. Date. Petitioner and respondent entered into a written agreement on or about (date): Unknown
b. [7] Attachment. A copy of the agreement is submitted as Attachment 4(b) and incorporated herein by this reference.
c. Arbitration provision. Paragraph n/a_of the agreement provides for arbitration of disputes arising out of the
agreement as follows (either copy the arbitration provision in full or summarize the provision):
Petitioner is required by the terms of her medical plan to arbitrate all disputes with Kaiser and its doctors.
Agreement is in possession of respondent.

5. Dispute subject to arbitration. A dispute arose between petitioner and respondent concerning the following matter covered by the
agreement to arbitrate (summarize the dispute):

1. Malpratice damages
2. Systemic disregard for human life
3. Punitive damages

6. Arbitrator. The following person was duly selected or appointed as arbitrator (name of each arbitrator):
Andrea Ponticiello

7. Arbitration hearing. The arbitration hearing was conducted as follows (complete both of the following):
a, Date (each date of arbitration): 9/1612020 - 10/10/2020
b. Location (city and siate where arbitration was conducted):

San Francisco, CA
8. Arbitration award,

a. Date of award, The arbitration award was made on (date): April 14, 2020
b, Terms of award. The arbitration award (check one or more of the following):
(1) [-) requires ((_] petitioner [__] respondent to pay the other party this amount: $
(2) [7] requires neither party to pay the other anything,
(8) (J is different as to different petitioners and respondents.
(4) [J provides (specify other terms or check item 8(c) and attach a copy of the award):

c. [4] Attachment of Award. A copy of the award is submitted as Attachment 8(c).

9, Service of award.
a. The signed award or an accompanying document indicates that the award was served on petitioner on (date): 4/14/2020
b. [] Petitioner alleges that a signed copy of the award was actually served on (date):

-ADR-106 [New January 1, 2004) PETITION TO CONFIRM, CORRECT, OR VACATE Page2ot$
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)Tv
PETITIONER: Mary Ayers . CASE NUMBER:

RESPONDENT: Kaiser Foundation Hospitals, et al.,

10. Petitioner requests that the court (check all that apply):
a.L_] Confirm the award, and enter judgment according to it.
b.[__] Correct the award and enter judgment according to the corrected award, as follows:
(1) The award should be corrected because (check ail that apply):
(a) [] the amount of the award was not calculated correctly, or a person, thing, or property was not described
correctly.
(b) [1 the arbitrator exceeded his or her authority.
(ec) [J the award is imperfect as a matter of form.
(2) The facts supporting the grounds for correcting the award alleged in Item 10b(1) are as follows (if additional space
Is required, check here [__] and submit facts on an attachment labeled 10b(2)):

(3) The award should be corrected as follows (if additional space /s required, check here [__] and describe
requested correction on an attachment labeled 10b(3)):

c.[7] Vacate (cancel) the award. .
(1) The award should be vacated because (check all that apply):

(a) [71 the award was obtained by corruption, fraud, or other unfair means.

(b) [7] an arbitrator was corrupt.

(©) [4] the misconduct of a neutral arbitrator substantially prejudiced petitioner's rights.

(d) [1 the arbitrator exceeded his or her authority, and the award cannot be fairly corrected.

(e) [] the arbitrator unfairly refused to postpone the hearing or to hear evidence useful to settle the dispute.

(f) [Z] an arbitrator failed to disclose within the time for disclosure a ground for disqualification of which the
arbitrator was then aware.

(g) an arbitrator should have disqualified himself or herself after petitioner made a demand to do so.

(2) The facts supporting the grounds for vacating the award alleged in item 10c(1) are as follows (if adaitional space is
required, check here and submit facts on an attachment labeled 10c(2)):

(8) Petitioner [7] does [) does not request a new arbitration hearing.
d.{_] Award petitioner interest from (date):
(1) (-) at the statutory rate.
(2) [_] at rate of ___ % per year.
e.[__] Award petitioner costs of suit:
(1) [J in the amount of: $
(2) [_] according to proof.
f. (] Award petitioner attorney fees incurred in this action (check only if attorney fees are recoverable in this action
according to statute or the parties' agreement):
(1) (_] in the amount of: $
(2) [_] according to proof.

g.[__] Award petitioner the following other relief (describe relfef requested; if additional space is required, check here [_]
and describe relief on an attachment labeled 10g):

11. Pages and attachments. Number of pages attached:

Date: July 20, 2020

Neil D. Eisenberg, Esq. »

(TYPE OR PRINT NAME) (SISNATURE OF PETITIONER OFPYTORNEY)

‘ADR-106 [New January 1, 2004) PETITION TO CONFIRM, CORRECT, OR VACATE Paga dof
CONTRACTUAL ARBITRATION AWARD
(Alternative Dispute Resolution)Attachment
8c23

4

|| Andréa M..Ponticiello, SBN 80541

|| Favsimile: (707) 978-4455

! FOUNDATION HEALTH PLAN, INC., 2

}| Claimant,” George Clause, Esq. of Hayes: Scott Bonino Ellingson Gustani Simonson & Clausd

NK \

Law &.Mediation Office of Andrea M. Ponticiello
703 Second St. Ste. 115:

Santa Rosa, CA 95404.

Telephorie: (707) 541-3820

‘Neutral Arbitrator
IN ARBITRATION
BEFORE’ NEUTRAL A ARBITRATOR
ANDREA PONTICIELLO:
MARY AYERS,
Claimant, Arbitration No. 14716
Mv
ARBITRATION DECISION

KAISER FOUNDATION HOSPITALS, a
non-profit corporation, KAISER.

non-profit corpotation, and THE
PERMANENTE MEDICAL GROUP, INC,
a professional corporation, LESLIE AIKEN,
M_D., and MEAGHAN LYNCH, M-D., and
POGGI, JACQUELINE, M_D..

Respondents,

2019 ‘through. October 11, 2019, October 21, 22 and. 30, 2019, Deceniber.9, 3019 through
December 13, 2019, January.27, 2020-through February 7, 2020. and February 28, 2020:
Neil Eisenberg, Esq..of the Eisenberg Law Office.in San Francico appeared: on behalf of

Page 1 of 46

This matter was heard before Neutral Arbitrator Andréa M. Ponticiello on September 30,

Ayers v.. Kaiser - Decision:|/ Were. considered. by the Arbitrator. Both sides offered oral arguments during the hearing which

tr were considered by the Arbitrator.

q evidence, exhibits, transcripts. of depositions, and arbitration briefs submitted by respective

x» YN Dn DH *®

|| Eve Rose Maremont and Dr. Aaron Lewis.and.incorporate their testimony by reference,

LLP in San Carlos, appeared on behalf of Respondents. Both sides provided pleadings which]

Following. a review of the moving papets, witness testirnony, admitted documentary

counsel, the following decision has been reached,

I

Procedural History
On March 28, 2017, Claimants Claimant Ayers and Dean Ayers served a Demand. for

Axbitration, alleging $250,000 in damages, and naming as Respondents Kaiser Foundation
Hospitals, Kaiser Foundation Health Plan, Ine,, The Permanente. Medical Group, Inc,, and Leslie
Aiken, M.D, On August 17, 2017, without any objection, Claimants’ counsel served an
Amended Demand for Arbitration. The Amended Demand increased. the claimed damages to
$5,000,000, and added Meaghan Lynch, M.D, as a party. On October 17, 2017, Claimant’s
counsel served a second Amended Demand lettei adding Jacqueline Poggi, MD as-a respondent,
without objection. At the end.of May 2018, Claimant Dean Ayers withdrew from the
proceedings. On.June 4, 2018, Claimant’s counsel filed an-Application for Eeave to Aménd the
Demand Nuné Pro Tune and amend the prior arbitration demands.as to each ofthe respondents
to conform. to the proof as to Claimant’s basis for her claim to inelude the evidentiary testimony

obtained in the depositions of Dr. Lealie Aiken, Dr. Meaghan. Lynch, Dr. Jacqneline Poggi, Dr,

including requesting punitive damages. Respondents opposed the application, in that the time

for seeking leave to amend the arbitration demand had:passed, and thaf previous demands did.not

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Ayers v. Kaiser - Devision20 ||
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comply with Code.of Civil Procedure § 425.13. On June 18, 2018, arbitrator Hon, John True OI
issued an order denying the application, holding that California law applies to this arbitration,
Claimant’s application was untimely, and was fundamentally insufficient to show a substantial
probability of obtaining punitive damages at arbitration. Claimant’s counsel then filed a motion.
for'reconsidefation of the order denying leave to amend the arbitration demand, which was
[subsequently denied by Judge True on July 23,.2018. On July 26,.2018, Claimant’s counsel
served notice of his disqualification of Judge True.as arbitrator, On July 27, 2018, the Office of
the Independent Administrator confirmed Judge True’s disqualification. On July 27, 2018,
Claimant’s counsel sérved.correspondence. advisinig that discovery was stayed until ¢ new
arbitrator was. appointed,

On October 5, 2018, the parties selected Andtéa Ponticiello, Esq, as the atbitrator, After
holding two Arbitration Management Conferences, Noveniber 29, 2018 and December 10, 2018,
the parties. established the hearing date, Initially, the Arbitration hearing was:set for December 2,
2019, and then changed to September 30, 2019 atthe request of Respondents, with no objection
by Claimant,

On December 5, 2018, Claimant filed a Motion te Brevious Aubitrator’s Ruling and
Discovery Status on December 6, 2018. Respondents filed-their Opposition to Motion on.
Deceniber 17, 2018 arid @ hearing was held on January 7,.2019. The Arbitrator’s decision, filed.
6n Januaty 16,2019, granted: Respondent’s request to keep discovery open, vacated the previous
Arbitrator’s milings and denied Claimanit’s Request for Leave to Amend to allege Punitive
Damages and to conform to proof without prejudice: However, upon receipt of'a-renewed
motion, the Arbitrator granted Claimant's. application for Leave.te Amend to allege an additional

count of breach of the implied covenant of good faith and fair dealing against Respondent Kaiser|

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Ayets v, Kaiser - Decision23
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the Ametided Demiand added the second cause of'action for breach of contract, third cause of

H action for bad faith, and fourth cause of action for punitive damages based on a violation of the

| Clairnant’s. motion was denied, Claimant also moved Pursuant io. California, Evidence Code §

Foundation Health Plan, Inc., to allege punitive damages against Kaiser Health Plan, Inc, and to

allege an additional count. of breach of contract against Kaiser Foundation Health Plan, Inc.
Thereafter, Claimant, was allowed to’ serve an Amended Demand on March 21, 2019,

which includes Meaghan Lynch, MD and.Jacqueline Poggi, MD as Respondents. Additionally,

Knox-Keene Act.
‘During the Arbitration, Claimant served a:“Motion Opposing Opinion Testimony of

Percipient Witnesses”. Respondent opposed Claimatit’s request. On October 18, 2019,

1101 and§.1280 to Admit DMHC Reports, Drs. Burroughs and Waters” Testimony Re Prior Bad.
Acts, Resporidenits'objected to that request. On Novetnber 12, 2019, Respondents’ objections
were sustained and Claimant*s motion to admit the DMHC reports and Dr, Waters’ testimony for|
the purpose of proving prior bad acts pursuant to, California Evidence Code §1101(b) to establish
a.common design orplan was denied. ‘

On October 23, 2019, Claimant served a Motion To Stay Proceedings Until December 9,
2019, At Hobart Building, 582. Market Street; San Francisco, To Admit Claimant’s Exhibit A,
Parts 1 To-'10, As: Stipulated Medical Records. And To Order Issue Sanctions (sic) Against.
Respondents On Liability For Providing False Medical Record Binders To: Arbitrator And,To
Order A Mistrial. On October 24, 2019, Respondents objected. Claimant’s.motion. was deniied..

On November 12, 2019, Claimant moved for Reconsideration of the Arbitrator’s
November 12, 2019 Decision Of “Bad Acts” and to Take Judicial Notice of the California
Department of Managed Health Cars Report of June 12, 2017 atid To Take Judicial Notice of thel

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Ayers v..Kaiser - Decision23
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} Knox-Keene Act, Health & Safety Code § 1340 et'seq. On November 19, 2019; Claimant filed

|| “Bad Acts” and to Take Judicial Notice of the California Department of Managed Health Care
Report of June 12,2017 and To Take Judicial Notice of the Knox-Keene Act, Health & Safety

Objected.

an Amended Motion for Reconsideration of the Arbitrator’s November 12, 2019 Decision Of

Code § 1340 et seq. Based ont New Facts and Upon Evidence Code §452 (C). Respondent

On Decembér 2,:2019, the Arbitrator ruled that the prior Arbitrator’s Ruling Re
Claimant’s Motion Pursuant to California Evidence:Gode §1101 and §1280 to Admit DMHC
|Reports, Drs, Burrough’s and Water’s Testimony re Prior Bad Acts is Amended with the deletiorl
of the reference to: the Settlement Agreement. Claimant’s request for'the: Arbitrator to take
jtidicial otice.of the Knox-Keeite Act, Health and Safety Code §1340 et seq., was graited.
Claimant’s request for the Arbitrator to take judicial notice of the California Department-of
Managed Healtli Care Report.of une 12, 2017 was granted, exclusive of its contents and
pursuant to the limitations imposed above, Claimant’s request for reconsideration of the
admissibility of the contents 2017 DHMC report regarding the “Bad Acts” was denied.
Respondent’s request for sanctions was denied,

On November 15, 2019, Claimant moved to “Reopen” Claimarit’s Case-in~Chief Inthe:
Interest of Judgment (sic), Respondents objeoted..Om Decerhber 2, 2019, Claimant's miotion to
re-open her case-in-chief in order to have Dr. Burroughs testify on the issue of the preservation.
and/or alteration of electronic medical récords was, granted. Claimant’s motion to re-open her
case-in-chief in order to submit.a certified copy of the DMHC of 2017 was denied.

Clatinant asserted that the originial fee waiver applies to the cost of Reporter’s transcript

of the proceedings and requests.a copy be provided to her at no cost, Respondents. opposed that

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Ayers v, Kaiser - Decision24

|| Respondents refer to the transcript in argument or in their brief, they shall supply a copy of that
‘March 6, 2020 based upon the submission of the final transcripts received. The deadline for the |

Arbitration Awatd is April 17, 2020.

Prodedure §1281.91(d), On April 8, 2020,.Claimanit’s motion was denied.

| During her two day stay at SFGH, neurosurgeons conducted an assessment, Claimant’s Glasgow

tequest.. On January 23, 2020, Claimant’s motion was denied, with the provision that if

excerpt to Claimant.
Closing Arguments were heard on February 28, 2020, The case-was deemed closed on

On March 2, 2020,,Claimant’s “Motion to Dismiss” and/or Motion for a Mistrial.-was
denied.
On April 7, 2020, Claimant served a Motion to Disqualify Arbitrator Per Code of Civil

On April 13, 2020, Claimant served a second Motion to Disqualify Arbitrator Pursuant to :

CCP§ 1281.91 (BY, CCP§170.1, CCR§3.8(b)(2). That motion was denied om April 14, 2020,
0
Factual Background

On February 23, 2016, Claimant and her husband, Dean Ayers (hereafter “Husband”),
were assaulted by several individnalsnear their home in: San Francisco, Clainsant. was struck in.
the face and.thrown t6 the ground. She was knocked unconscions, When the police came, she
‘was rushed'to the neurosurgery ward.of San Francisco General Hospital (SFGH), The diagnosis
was: subarachnoid Kemorrhage (SAD), along thé left temporal lobe, right parietal sealp
hematoma, right parietal and temporal bone fracture, right spheroid fracture and bilateral
nondisplaced nasal fracture. Claimant’s husband, also-suffered ‘a broken bone ini his leg/ankle.

Coma Scale was a score of 14 out of 15 which was.deemed.a mild ‘Traumatic Brain Injury. Two

‘Page 6 of 46

Ayers'v, Kaiser - Decision| Hospital in San Francisco upon her condition stabilizing. The SFGH record noted that:Claimant

|| had a prior history of fibromyalgia, depression and sleep. apnea. It further noted that she had been|

| Claimant had evaluations done by various hospitalists, and had.a repeat CT that confirmed the

CT scans showed fractures. and slight intracranial bleeding, but neurological consults determined

that no surgical treatment was necessary, and she was transferred to the’ Kaiser Foundation

taking anti-depressants, When Claimant arrived at Kaiser Acute Care in San Francisco, there
existed in her medical file a history of'medical and emotional problems: post-traumatic stréss
disorder (12-17-13), depréssion NOS, anxiety disorder, Axis.II, Axis IV problem with
relationships, problems related to social environments and occupational problems (12-20-13),
major depression, recartent, mood dysregulation, PTSD (1-9-14). Medical records and other
evidence reflected that throughout.her life, Claimant experienced significant trauma, as her
father-figures were alcoholics and physically and emotionally abusive, and she was constantly
uprooted by her mother flesing these situations,

Claimant’s Kaiser admission lasted from February 25 to March 3, 2016, During this time,

absence of continued intracranial bleeding. Moreover, Claimant underwent evaluations by
physical medicine-and rehabilitation, physical therapy, speech therapy, and a. medical-social
worker, resulting in recommendations that she be discharged home. Claimant developed
abnormal sodium levels that. were-managed with salt tablets. The discharging physician, Dr.
Jacqueline Mary Poggi, consulted with a neurologist and a PM&R. specialist regarding
Claimant's condition, and found that:that Claimant did not reqitire inpatient rehabilitation at the:
Kaiser Foundation Hospitals facility in Vallejo.

Shortly after discharge, a‘home health RN made an initial visit, who received reports that
Claimant had intractable pain, impaired decision making, and was likely to remain fragile health.

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Ayers V, Kaisér - Detision23

However, thie nuise found that Claimant’s pain was niantaged by medication, arid her mental.
status appeared normal. As Claimant’s primary care physician, Dr. Lesley Aiken had a post-
discharge follow-up. appointment on Marchi 7, 2016 by telephone. Therein, Dr. Aiken assessed

that Claimant’s condition was improving, discussed mediations and treatment plans. A couple off

} weeks later, Dr. Aiken made.a referral to the neutology department upon Claimant’s request,

| Twice that month, PT home health services attempted to complete their initial visit, but were.
unable to do so. In May 2016, Case Manager Cynthia. Mather worked with Claimant and

|| Husband to get a referral to the medical social worker department.

The neurology department assigned.Claimant’s care to Dr. Lynch, a physiatrist and they
mheet May 27 2016. Dr..Lynch makes a referral to Dr. Lewis and advises Claimaiit to continue
with her outside psychotherapist. In June 2016, Claimant meets with PT Shechy, CM Mather
RN, and Denise Bracken MSW, Erin Stachely, LCSW, Sprague Terplan, RN and Wayne Li,
therapy. manager for the Department of Psychiatry. Claimant declined appointments with Dr.

Maremont and therapist Carlos Morales, During this. month, Claimant was receiving outside

thetapy from the Trauma Recovery Center (TRC). Claimant,was also receiving speech therapy:

from Ed Watters during this time:.In July 2016, Claimant had appointments, telephone:calls or

| contacts with Ms. Bracken, Mr. Watters, Dr: Matement and had an’ appointment with Dr. Lewis.

On July 29, 2016, Husband began to complain about Claimant’s treatment based upon his own.

résvatch. Jn, August 2016, Husband rejected the services of a neuropsychologist for Claimant.
He continued to-demand a “TBI specialist” inthe psychiatry department and-claims he has-found
sucha provider outside the Kaiser system. Dr: Maremont, authorized this treatmient. Duting the
month of August, Claimant and Husband-have:no'less than 20: communications with Kaiser

providers over various health care.issues. In September 2016, Husband continued to séek his

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Ayers-v. Kaiser - Decision22
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in October 2016, Claimant also begins. video appointments with Kaiser sieutopsychologist, Dr.

}| progress with her reiabilitation. Nonetheless, Respondents considered these requests and made

own provider for Claimant etnailitig Df, Maremont, and contacting Ms. Mather and Ms. Bracken
several times, Husband and Dr. Lewis also exchanged emails over treatments and medications.

Husband finally identified Dr. Elaine Liu, an outside psychiatrist. and Claimant begins seeing her

‘Trinh in October. A privately paid neuropsychological evaluation is.done by.Dr. Wroolie, Over
the tiext 11 months, Claimarit sees both Kaiser and non-Kaiser providers. Claimant continues
concurrent treatment with Dr. Lynch through February 21, 2017, until Husband terminates that
care and-trahsférs- managetient of Claimant’s treatment to Di, Lewis. A. couple of days later,

| Husband ends Claimant’s PCP care with Dr, Aiken.

Complicating Claimant’s entite otitpatient course during 2016 tha Séptémber 2017 was
her relationship with Husband, whe took a controlling role in her medical treatment, Any
electronic communication. on behalf of Claimant was prepared by: Husband, as he eventually.
obtained power of attorney from. hér, attended most appointments, and began requesting speuific
treatment that had not been recommended by-providers and. was based. upon. his own-independent
research. Repeated explanations were given as to why equivalent treatments were already being,
provided or the requests were-unrealistic, and providers began. to notice stagnation in Claimant’s

referrals when appropriate. Husband and Claimant's relationship subsequently dissolved in
September 2017 following false reports by Husband to Claimant's out-of-network psychiatrist
that Claimant was presenting multiple personalities, making verbal threats against him and
inflicting self-harm.

On August 9, 2018, Dr. William D. Hooker, Ph.D., a neuropsychologist, gave Claimant.a
neuropsychological examination. He-compared the results of that test with those of the

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Ayers ¥, Kaiser - Decision-neuropsychological exam that Claimant had received pre-injury in August 2014. Dr. Hooker
testified that Claimant's nonverbal intellectual abilities were significantly stronger in 2018
compared to 2014, He found that her curterit verbal intellectual abilities were trending towards
being stronger cotmpared to four years earlier, On various executive functioning tests there was
no change from pre-TBI injury-to post TBI injury. In fact, he stated that compared to the data
collected in 2614, Di. Hocker did not sée any mental abilities that were lower when hte tested her
after the brain injury. Dr: Hooker added that her-emofional regulation had improved, but was
probably aot back to-baseline. Dr. Hooker also fotmd that the findings he made ate compatible
withthe brain images studies showing encephalomalacia or permanent left temporal lobe
damage..

Claimant presented witnesses: Dr. Christy Waters, psychiatrist expert, Dr, Tracy
Newkitk, neurologist expert, Dr, Ira Glick, psychiatrist expert, Dr. Richard Levy, internist
‘expert, Dr, Janet Lord, physiatrist, Physical Medicie and Rehabilitation (PM&R) expert, Dr.
Carol Schaffer, hospitalist expert, Sandra Lowry, RN Case Managenient Expert, Ms. Maria
Biady MS, vocational constiltant, Dr, Jonathon Harris Burroughs, hospital administration expert,
Mary Ayers Anderson, Claimant.

Respondent presented. witnesses} Dt. Lesley Aiken, treating intetnist, Dr. Dean Nickles,
expert internist, Dr. Eve Maremont, treating psychiatrist, Dr, Victor Reus, psychiatrist expert,
Dr. Aaron Lewis, treating neurologist, Dr: Gary Abrams, neurologist. expert, Dr. Meaghan
Lynch, physiatrist, treating PM&R doctor, Dr, David Bradshaw, physlatrist, PM&R expert, Dr.
Kenneth Fox, Head of Neurology, Dr. William D. Hooker, expert néeuropsychologist, Sheena
Butler, treating RN, Alice Chen, treating MSW, Alexandra Duchene, treating RN Patient Care

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Ayers v. Kaiser - Decision20
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Coordinator, Mr. Edwatd Watters, treating Speech Thetapist,, Denise Bracken, treating MSW,
Dr, Jacqueline Poggi, treating hospitalist.
1mm
Standard of Care (SOC) Requirements
A. Inpatient Treatment: by the Hospitalist

iL. Was Dr. Poggi’s treatrient plan appropriate for the Claimant’s needs pursuant
to the SOC?

2. Did the SOC require an inpatient referral to a neurologist, neuropsychologist,
psychiatrist, psychologist or psychotherapist? , ,

3. Did the discharge plan meet the SOC?

The fundamental elements required to show medical negligence are appropriately cited in|
Respondents’ Post Arbitration Brief, The court in Simmans v. West Covina Medical. Center
(1989) 212 Cal.App.3rd 696, 701-702, described the essential criteria for medical negligence:

[T]he plaintiff. , , nvust- establish the following basic elements: (1).
‘the duty of the professional to use suck skill, prudence, and
diligence as other members of his profession commonly possess and
exercise; (2) a breach of that duty; (3) a proximate causal.
connection. between the-negligent conduct.and the resulting injury;
and (4) actual loss ot damage resulting from the professional’s.
negligence,

Treatment Plan. Tamediately. after her injury, on February 24,2016, Claimant was.taken.
fo San Francisco General Hospital (SFGH) where she. was evaluated by a neurologist. She hada
Glasgow Coma Scale (GGS) of 14/15, which was normal and was speaking in full sentences.
She had no recall of the assault, The initial CT scan showed a broken nose, four skull fractures
of the right parietal and temporal bone and intracranial subarachnoid hemorthages. Two repeat

CT scans: did not reveal any interval changes other than reabsorption ofthe hemorrhages, SFGH

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Ayers v. Kaiser - Decision24

|| Claimant for the first time, Dr. Poggi noted that Claimant was complaining of'a headache. Dr:
|| show improvement from the CT scans.from SFGH. Dr. Poggi ordered sodium. supplements to

| neurological exam and she was “oriented.x3” (who she is, where she is and what time/date it is); ;

concluded that she had suffered a. concussion, categorized it as a mild traumatic brain injury
(TBD. Claimant was cleared by neurological and ENT (ears, nose.and tiroat) doctors at SFGH
and it was determined that no additional interventions were necessary.

, On February‘25, 2016, Claimant was transferred to. Kaiset whore Claimant was
monitored for neurologic changes, The.admitting hospitalist, Dr. Allison Cooke; gave Claimant al
‘physical. Husband reported that Claimant had been confused earlier, but het mental statis had
/refurned to baseline, Dr, Cooke’s diagnosis was mild to moderate:traumatic brain injury and
admitted her for symptoiti managenient. On Februaiy 26,2016, Dr. Pope, ahother hospitalist, did|
a neurological exam on.her and:he found she had no neurologic deficits. The doctor noted ]
“complex. psychiosocial” ‘and referied her to a social worker: Claimant was seen by both.a.social|
worker, MSW Alice Chen and a physical therapist on that date, On February 27, 2016, and:
February 28, 2016, another Kaiser hospitalist, Dr. Reynaldo Cordero, noted she has had a
setback due to headaches and nausea. He ordered anothier CT gcan to cheok for renewed
bleeding. Due to Clainiant’s symptoms, an occupational therapy (OT) consult was delayed. Dr.
Cordero also requested a physical medicine aud tehabilitation specialist (PM&R) who are trained
to rehabilitate people. with brain injury and.to advise on pain management. On February 29,,
2016, Dr. Thomas Reuitter, a PM&R physician, did neurological‘exam and noted Claimant’s

GCS was 15/15 which was normal, On this date, Dr, Jacquejine Poggi, a hospitalist, saw
Poggi reviewed the CT scan ordered by Dr. Cordero, The test showed rio new bleeding and did

normalize Claimant’s levels which were low due to-her TBI. Claimant was given a brief

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Ayers y, Kaiser - Decisionan

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| to improve, Claimant had walked down stairs; that acute PT goals were met, According to PT,

On March 1, 2016, the. OT evaluation. was conducted and Claimant was found:to be able to
perform activities of daily living (ADL) and other fumotions.at.a modified independent level.
The-OT therapist recommended that Claimant-be discharged home with assistance from friends
and family for meal preparation and:honie management and found no other acute OT needs.
‘Both Claimant and her husband told the therapist that they were in the:process of scheduling,
friends to. assist them. PT also.saw Claimant this day and notéd that gait and balance coritinued

prognosis was good for eventual return to prior activity level. PT recommended that Claimant be
discharged with increased assistance and home health PT services since Claimant had met the
goals -at the start of admission. On March 2, 2016, Claimant complained of continued nausea
land vomiting. Dr. Poggi adjusted Claimant's pain medication, ai she believed it, was
contributing to the nausea. On March 3, 2016, Claimant was evaluated by speech: therapist, Ba
Watters, He noted mild. cognitive impairment, mild to modetate dnoniia and rhild to moderate
lmemory impairment; He.joined OT and PT in, recommending home discharge, with Claimant to
receive outpatient speech. therapy (ST).

Dr. Carol Schaffér, Claimant’s hospitalist expert, did not present persuasive testimony
regarding Dr. Poggi’s failure to treat. Claimant within the SOC. Additionally, her report did not
address the.in-patient treatment factors adequately:

Per Respondents’ expert,.Dr. Dean J. Nickles, an internist who practices both inpatient
‘and outpatient intemal medicine, and had experience. with patients in the goute phase of a
traumatic brain injury who are hospitalized, found that Dr. Poggi did meet the SOC in
management of Claimant’s. condition. Dr. Nickles. stated that on Dr. Poggi’s first contact with

Claimant oti February 29, 2016, she found her “ill-appearing, moderate to severe distress

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Ayers Vv. Kaiser - Decision23
24

| of patients. ‘Claimant-was suffering from the syndrome of inappropriate secretion, of an

}| physician had seen Claimant the previous day, and:was recommending Inderal for her headaches,

secondary-to her headache and wearing sunglasses due to photophobia. Dr. Poggi did a physical |

exam of Claimant and summarized the Clairnant’s course of treatment from February 26 through
Febrnary 28, The follow-up CT scan showed-resolution ofthe subarachnoid hemorrhage. Dr.
Poggi supported the Claimant with PT, pain medications, medications for nausea, anda
prophylactic seizure medication. Dr, Nickles further noted that a referral. was made for physical
medicine (PM&R), which is the discipline that is primarily involved with rehabbing these kinds

‘antidiuretic horinone (SIADH), which is low blood sodium or hyponatremia, and Dr. Poggi did
order the administration of JV salt and oral sodium and put the Claimant on fluid restriction,
‘which were all appropriate. Dr. Poggi also mentioned that the Clairnant.was alert and oriented in
-all spheres, and Dr. Nickles noted that the doctor was monitoting the stability of Claimant’s
mental state as a result of the low sodium and.continuing many of the medications that Claimant
was taking priot to the TBI. Dr: Poggi also planned that PM&R, OT: and PT would be used once
Claimant’s headaches had improved,

Dr. Nickles discussed Di, Poggi’s treatment on March 1, 2016:and her evaluation. and,
assessment on that date. It was noted that Claimant’s headache and nausea had improved, she
was able to toletite medications, and she was able to walk.a little bit arid was eating better. |

Claimant was progressing’as expected from a‘TBI. Dr. Poggi’s note also included that'a PM&R

which Dr, Poggi added.: The PM&R doctor also recommended “rehab, speech/language
pathology for cognitive evaluation, physical therapy, occupational therapy, DME need to be
determined during the course of rehab,” all of which were a part of Dr. Poggi’s discharge plan.

The low sodium was improving and Dr. Poggi continued to follow that progress. On March 2,

Page 14 of 46

Ayers v. Kaiser - Decision24

2016, Dr. Poggi’s note stated that while there’s still. some evidence of nausea and vomiting,

according to Dr. Nickles, Thus, Dr, Poggi’s treatment appeared to be appropriately responsive to

| Claimant's prior diagnosis of depression, Dr. Nickles found that the doctor’s daily ‘interaction

‘oriented and interactive, and continuing to receive het prior médication Cymbalta, there wereno
‘signs of depression and Claimant'had not reported any feelings:of depression. Dr. Nickles did

|| taking, so Di. Nickles opinion seems well-founded based upon the facts presented. -

| purpose of her admission fo the hospital was to treat the symptoms related to her TBI, not the

Claimant was able to eat a banana, and her headaches continued to; improve. The Claimant.was
able to walk around while talking to Dr. Poggi. Dr. Poggi decreased the narcotic oxycodone as
she believed it was contributing to Claimant's vorniting. This, too, was within the SOC

Claimant’s symptoms and needs..
With regard to Dr. Poggi’s care of Claimant’s mental health issues, and referencing

with Claimant, observing her and determining her mood, level of anxiety met the SOC and that it

‘was not necessary to review Claimant’s psychiatric:history; Since the Claimant was alert,

not find it necessary under thie SOC:to give a soreeriing test to check for depression. It was also.
apparent from the medical records, that Claimant was not hesitant to report any psycho-social
problems, whether it be protilems at work, marital strife or feeling frustration from her test-

As to the management of Claimant’s prior diagnosis of chionic pain, Dr. Nickles found
that-Dr. Poggi was treating the chronic’ pain by continuing Claimant’s past medication, ‘but the

chtonic pain, The medical revords reflected no, complaints by Claimant. that she was suffering -
from any other pain other than that caused by the assault and TBI.
Dr, Nickles based his autlioritative opinion that Dr. Posi did meet the SOC on the

factors that she did an appropriate assessment of the patient, did a proper examination of the

Page 15 of 46

‘Ayers v. Kaiser - DecisionClaimant, took approptiate measure to address her complaints, and did the apptopriate-

conisultation with the PM&R department.

Referral. Dr. Schaffer, also testified that Dr. Popgt had not met the SOC aé there should
‘have been a-consult with a PM&R doctor, neuropsychological evaluation as well as. a
consultation from a psychiatrist, and neurologist and failnré to do so was below the SOC. Dr.
Schaffer testified that a hospitalist is trained to recognize signs of depression, anxiety, altered
mood, paranoia, hallucinations, or thought disorder, but despite no evidence of such symptoms in
Claimant, Dr. Schaffer believed that Claimant should have been referred pest discharge back to
psychiatry and/or pain management. Dr, Schaffer’s report was at odds with her testimony. as she
did not form the opinion in her report that the SOC required inpatient psychiatric evaluation, a
neurological consultation, aneuropsychological evaluation or evaluation therapy by a
psychologist,

Dr; Ira Glick, an expert in psychiatry, also testified for Claimant that it was.a breach of
tte SOC for Claimant.not to receive an inpatient psychiatric evaluation within 48 hours to

|| determine the patient’s needs and psychotherapy treatment in hospital for Claimant to get better,

However, hé agreed that there. were no Aotes of any new psychiatric symptoins stich: as aritiéty,
depression, mood disarder, or hallucinations. Nonetheless, Dr, Glick went on to explain that
psychotherapy would have promoted “néuroplasticity”, which. is the re-generation of brain cells.
and that would have expedited Claimant's revoyery improving her outcome “at least 50 percent”,
Yet Dr. Glick also admitted that in 2016 there-wash’t a-cleatly a defined.and established SOC in.
the treatnient of TBI injuries. This opinion regarding the ceriainty of improvement with
psychotherapy affecting neuroplasticity was.refuted by Dr. Gary Abrams, a neurologist, Dr..
David Bradshaw, a physiatrist, and Dr, William D. Hooker, a neuropsychologist who all stated

Page 16 of 46

Ayers v. Kaiser- Decision.a WNW YW

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22

24 ||

!| explained that if the Claimant had ‘had a seizure or a focal neurologic event, then'‘neurology

that “neutoplasticity” is.still not understood fully, and the evidence, particularly in 2016, was,
still emerging. Dr. Victor Reus, Respondents’ psychiatry expert testified that given the
presentation of Claimant during hospitalization, no psychiatric consultation was required. ‘Dr.
Reus also testified that there is.no clear evidence of any beneficial effect of acute psychotherapy
on tesofution of TBI that is unclear what interventions will actually facilitate neuroplasticity.

Dr. Poggi’s own testimony supplemented the medical records. She explainied that she did
‘not refer Claimant to psychiatry as there. were no complaints of any psychiatric symptoms (like
depression), notice were observed and previous medications were-continuing, Dr: Poggi testified
that Claimant's headaches made her unable to patticipate in psychotherapy, and a neurology
‘referral was unnecessary dite to her stabilization and improvement after arriving fron SFGH, her|
Hack of'any focal neurological deficits, and the plan for ST for her confusion.

Dr. Nickles also testified that the SOC did not require ah inpatient psychiatric
consultation because she was recovering from a TBI with severe headaches (10/10) and
photophobia. She dlso had a low serum sodium which can affect your mental status changes.
Dr. Nickles testified that this was not the time for psychiatric evaluation, The physician needed
to.get the patient through the organic issues.of her subarachnoid bleed, TBI, and low serum
sodium before considering. psychiatric evaluation. Dr. Nickles also confirmed that'a
neuropsychological evaluation was.also premature because the patient needed to reach a more
functional staté-after her TBI. Dr. Nickles testified that a neurology consultation was not
required as the:Claimant had been seen and cleared by the neurologist at SEGH. Since there -

weie 1io new findings, a neurology consultation waénot required by thé SOC. Dr. Nickles

would need to be called in.

Page 17 of 46

Ayers-y, Kaiser - Decision| vetified with Ms. Butler that there-were. plans to hire categivers (0 assist lier at home. Ms, Chen

-spirits, casily engaged and.conversing appropriately. Nurses’ notes ftom. February 28, 2016

}| was’ oriented and presentéd with positive spirits andl. conversed approptiately. Claimant reported

Discharge-Plan, On the discharge date of March 3, 2016, Dr. Poggi noted Claimant was
feeling better. Dr. Poggi ordered home healtli services for PT’ and OT, as she conchided there
was no need for acute inpatient rehabilitation services. Dr. Poggi had already consulted: with
nenrologist, Dr. Jacqueline Marous, regarding mabagement of Claitnant’s tieurological status and
‘headache. Dr. Poggi continned salt supplements and ordered a home health nurse to complete a
blood draw for laboratory testing. Di. Poggi added Inderal per the recommendation of the PM&R]
doctor, and asked. for a.ST evaluation per ‘his recommendation. The patient care coordinator

(PCC), Sheena Butler, RN, added in-home.ST due'to Claitnant being homebound. Claimant

followed up with Claimant prior to her discharge, providing information regarding resources,

Both Claimant and her husband agreed tothe discharge. Claimant was noted ta be ia positive

through March 3, 2016 showed steady progress.

Additionally, the medical records indicated that by March 2, 2016 Claimant had'been
seen. by the PM&R doctor, passed OT and PT and therefore,. would not:need acute rehab. Dr,
Poggi discussed the case with Dr. Jacqueline Marcus, a neurologist, regarding Claimant’s
headaches and she recominénded Inderal which was given and resulted in imptovernent. On
| March 2, 2016, a ST note:by Chantha Sun stated that Claimant presented with minimal deficits in]
short'term memory and higher level executive function, and minimal anomia. On.March 3,
2016, a.ST note of Ed Watters stated there was mild cognitive inpairment/mild-moderate
anomia/mild-mod memory impairment. On March 3, 2016, MSW Alice Chen noted, Claimant

they have access to money for home care, According to Ms. Chen, Claimant was very detailed:

Page 18 of 46

Ayers v; Kaiser - Decision:22

24

|. concerns.

| documented anormal exam on February 28, 2016 (GCS 15/15) with no speech ormemory-

she will order food for delivery and has a friend who can take her home and provide care for
several days while she coordinates more cate via other friends in lien of hiring care. Claimant
agreed that she will call the social worker should she or Husband’ have farther non-medical

Dr. Schaffer stated that there were serious deficits in the coordination of the transition
from hospital to discharge, and inadequate:follow-up with the primary care physician,
However, on cross-examination, Dr. Schaffer admitted that a: PM&R‘ physiatrist,.Dr. Reutter had

issues. Later she conceded that Dr, Pope on Febiuary 26, 2016 considered acute-rehab
‘contradicting Dr. Schaffér’s own.note in her report that acute rehab.had not been considered.
She adknowledged that OT, PT and'ST all recommended dischargé.to home and agreed that all
three of those reconumendations have to be considered by the hospitalist along with that of the
medical. social worker and.the hospitalist’s own evaluation of tle patient’s condition before the
hospitdlistaakes the decision about the discharge of the-patient. Dr. Schaffer -was concerned
that. Claimant was still having headaches, dizziness.and balanée, and photophobia. But-on the:
-discharge-date of March 3,.2016, when Dr. Poggi cheoked in with Claimant for the second time
that day, the record reflected that the photophobia and headaches had itiptoved.die-to additional
medication. Dr. Poggi’s discharge notes showed that she saw Claimant twice:that day, that
Claimant-had a much better appearance the last couple of days, sitting up in bed, alett, oriented,
.and wad eating, Claimaiit-was continuing to improve generally, and her headaches and
photophobia were improving as well. Claimant and Husband received written instructions on the
precautions for TBI recovery: the need for rest, decreased stimulation,

Page 19 of 46

‘Ayers v. Kaiser - Decision24

| therapy, speech therapy, physical therapy and-medical social worker evaluation.

t-whether she would do. better at a SNF or acute rehab, he said that there was no clear discharge

| plan in terms of follow-up with other specialists (physiatry, neuropsychology, psychiatry), and

.physician’s perspective, given his experience. Dr. Levy also testified that he had néver:signed

|| ocoupational therapist, spesch therapist and physical therapist before arriving at her discharge

Dr, Schaffer also criticized what.she saw as a lack of a plan for follow-up by case
management to. make sure the discharge home was safe one. Yet, the evidence was clear that

orders by Dr. Poggi for in-home health services, included a registered nurse, occupational

Dr. Richard Levy, a-cardiologist and internist, criticized Dr. Poggi for not coordinating

Claimant’s care with other specialists, such as a physiatrist to make a sécond assessmetit of

no clear integration of her primary premorbid problems. He admitted that he-was nota
hospitilist, as Dr. Poggi was, but as ai intemist, knew-what was required fiom a discharging

off on.a discharge dispdsition whose reason for admission to the hospital was a traumatic brain
injury. Dr, Levy opined that ifhe had, he would have arranged for a transfer 6f care to a
neurologist or a psychiatrist of a PM&R doctor. Dr. Levy went on to say that if the family had
communicated with the discharge planners and the. social workers to make sure they wete able to}
receive the patient, a-home discharge was appropriate. According to the Cleimant’s medical
records.and.testimony, that’s exactly-what happened. Dr. Poggi collaborated with-a neurologist,

the PM&R doctor, with nurses, Sheena Butler, and Starlynn Dris, social worker, Alice Chen, the r

decision.
Because Dr. Poggi had consulted with Dr. Marcus, a neurologist regarding the control of

Claimant's headaches, Dr. Nickles found the SOC did not require Dr. Marous to actually see the

Claimant as she had already been seen and cleared by a neurologist at SFGH, and did not have

Page 20 of 46

‘Ayers v. Kaiser Decision| Poggi’s consultations witli Dr, Marcus and the PM&R doctor were sufficient regarding treatment

|| A.second discussion with Dr. Marcus had occurred regarding tréattnent of Claimant’s headaches,

|| and Dr. Poggi had started 4 low dose of Ibuprofen. By this time, along with OT and PT, Mr,

any acute neurologic.events, nor did she require an inpatient neurological asséssment. Dr.

of Claimant’s headaches and photophobia as Claimant’s symptoms were improving with the
drugs that Dr. Poggi had placed her on. Additionally, the sodium level. had responded well to the
treatment Dr. Poggi: had implemented,

Dr. Nickles testified that Dt. Poggi’s Summary