Intoxicated patient discharged from hospital and then an Amtrak train runs over his legs. $28.6M.
Improper discharge from Emergency Room is blamed when intoxicated man is struck by train.
- Case Name: Joseph Daniel Nevis v. Rideout Memorial Hospital, Dr. Hector Lopez, and Amtrak
- Court and Case Number: United States Court for the Eastern District of California / 2:17-cv-02295-DAD-AC
- Date of Verdict or Judgment: Friday, October 28, 2022
- Date Action was Filed: Wednesday, November 01, 2017
- Type of Action: Medical Malpractice, Negligence
- Judge or Arbitrator(s): Hon. Dale A. Drozd
Plaintiffs: Joseph Nevis, 34
Defendants: Rideout Memorial HospitalDr. Hector LopezAmtrak
- Type of Result: Jury Verdict
- Gross Verdict or Award: $28,600,000
- Contributory/Comparative Negligence: 30% each to defendants Lopez and Rideout; 5% to Amtrak. 35% to plaintiff.
Future medical expenses $6,100,000
Future lost wages: $1,500,000
- Trial or Arbitration Time: 17 days
- Jury Deliberation Time: 2 days
- Jury Polls: Unanimous
Attorney for the Plaintiff:
McElfish Law Firm by Raymond D. McElfish, West Hollywood.
Attorney for the Defendant:
Washington & Washington by Peter Washington, Chico. (For Dr. Hector Lopez.)
Hinshaw Marsh Still and Hinshaw LLP by Bradford J. Hinshaw, Saratoga. (For Dr. Hector Lopez.)
Schuering Zimmerman & Doyle, LLP by Robert H. Zimmerman and Chad C. Couchot, Sacramento. (For Rideout Memorial Hospital.)
Flesher Schaff & Schroeder, Inc. by Jason W. Schaff and Nicole Low, Rocklin. (For Amtrak.)
Plaintiff’s Medical Expert(s):
Randal C. Epperson, Ph.D., psychology, Modesto.
Drew A. Hittenberger, C.P., BOCO, life care planning for prosthetics, Petaluma.
Carol Hyland, M.A., M.S., C.L.C.P., C.D.M.S., life care planning, Lafayette.
Andrew James Lawson, M.D., DF.A.C.E.P., emergency room medicine (standard of care), Mission Viejo.
Maureen D. Miner, M.D., physical medicine and rehabilitation, Gilroy.
Karen Tomczak, MSN, RN, CEN, nursing (standard of care), Livermore.
Jeffrey L. Zehnder, B.S.F.S., toxicology, Sacramento.
David Barnes, M.D., room medicine for Rideout, Sacramento.
Neal L. Benowitz, M.D., clinical pharmacology, San Francisco.
Miranda Van Horn, RN, BSN, CLCP, life care planning, Atwater.
Gary M. Berke, MD, CP, FAAOP, prosthetics, San Mateo.
Barry Simon, M.D., emergency room medicine for Lopez.
Plaintiff's Technical Expert(s):
Charles R. Mahla, Ph.D., economics, Sacramento.
Ricky Alan Sarkisian, Ph.D., vocational rehabilitation, Fresno.
Paul F. Byrnes, railroad and locomotive engineering operations, Bingham, IL.
Felix Lee, MS, PE, accident reconstruction, Inglewood.
Bong J. Walsh, Ph.D., CXLT, human factors, Livermore.
Defendant's Technical Expert(s):
Karl Erik Volk; economics, Walnut Creek.
Carla Huff Kelley, MRC, CRC, CDMS, vocational rehabilitation, Alameda.
Foster J. Peterson; train operations, Norcross, GA.
Facts and Background
Facts and Background:
On December 24, 2018, after working his shift, plaintiff received his check and went to cash it nearby. Plaintiff has testified numerous times in both deposition and trial that he cannot recall the series of events leading up to the incident, except that he remembers hurting his leg on or near the bus station. In the late hours of the night, he was found intoxicated near a sidewalk by Marysville Police Department. However, the police found him to be “too drunk for jail” and called for an EMT.
When the EMT arrived, they transported him to the emergency room at Rideout Memorial Hospital. In the ER, he was treated by Dr. Hector Lopez and Nurse Alejandro Gonzalez. When he was admitted, he was assigned an acuity of level 3, which required testing to be conducted. However, at no time did Dr. Hector Lopez request a blood alcohol test or a breathalyzer. Dr. Lopez and Nurse Gonzalez treated Mr. Nevis for a total of 13 minutes, whereupon Dr. Lopez found it to be medically appropriate to discharge him.
Mr. Nevis left the hospital without his required discharge papers. During this time, neither Nurse Gonzalez, Dr. Lopez, or Rideout Memorial staff went to look for Mr. Nevis or call the police, in violation of hospital policy.
After Mr. Nevis left the Emergency Department, he walked to the nearby railroad tracks where he laid on the tracks with his legs over the rails. He was struck one hour later by the Amtrak Starlight Train operated by Christopher Edson, that was traveling from Sacramento to Klamath Falls, Oregon. Mr. Edson failed to see Mr. Nevis on the tracks and failed to blow the horn despite an on-board video showing that he was visible on approach. Mr. Nevis’ legs were instantly amputated above the knee. Mr. Nevis was lying near the tracks bleeding and in pain for approximately six hours until a man on a dirt bike arrived. Mr. Nevis flagged the dirt bike driver and asked for help. Shortly after the EMT arrived, Mr. Nevis was transported back to Rideout Memorial Hospital as a trauma patient and underwent multiple surgeries.
That Dr. Lopez was negligent when he discharged plaintiff after a short 13 minutes. There were multiple medical records that stated plaintiff was too intoxicated to be in public, but Dr. Lopez only treated him for one or two minutes and did not order any testing or keep him for observation.
Further, that Dr. Lopez did not properly treat plaintiff and should have at least given him a breathalyzer test and a blood alcohol test. Additionally, Dr. Lopez failed to obtain plaintiff's’ medical history such as illness or surgeries. He did not even know that plaintiff was found by police on a sidewalk until the start of trial. He admitted that he had no idea what plaintiff’s alcohol level was at any time and did not know if it was rising or declining. In fact, Dr. Lopez testified that he had not seen the hospital policies regarding patient discharge.
Plaintiff’s experts testified that plaintiff had an elevated pulse rate of 101, which is defined to be tachycardia, and should not have been discharged, but rather given further treatment. Dr. Lopez testified that he never actually counted the pulse rate but considered it abnormal. He further admitted that it is not his custom and practice to discharge patients that are tachycardic because they can become comatose or have a heart attacks, which are possible but unlikely.
Plaintiff further contended that Rideout Memorial Hospital violated numerous standard of care policies by discharging plaintiff prematurely. Plaintiff additionally contended that Rideout Memorial Hospital and Nurse Gonzalez violated the elopement policy by allowing plaintiff to leave without calling security or the police. Even though Nurse Gonzalez charted “elopement” seven times and felt it was not a true elopement, he failed to locate plaintiff, failed to notify the hospital house administrator, and failed to call the police as required. Plaintiff contended that Rideout Memorial Hospital was vicariously liable for Dr. Hector Lopez’s insufficient medical actions and negligent discharge.
Plaintiff further contended that Amtrak engineer, Christopher Edson was negligent in operating the train. Additionally, that plaintiff was visible on the train tracks from the on-board video camera and that he was alert, because his legs can be seen moving on the video retrieved from the train cabin.
Plaintiff’s Human Factors Expert, Bong Walsh testified that Mr. Edson should have been paying extra attention because he had prior knowledge of pedestrians near the subject rails. He further testified that increased expectation would have a corresponding increase of attention and that would enhance the process stimuli.
Moreover, Mr. Edson could not think of a reason as to why he did not see plaintiff on the tracks other than lighting that was reflecting from the bridge. He testified that had he seen plaintiff, he would have stopped the train. Mr. Edson further testified that the train was traveling at 30 mph and can be stopped in 600 feet with automatic brakes. Additionally, he admitted that he had seen people on the tracks at least five times. Mr. Edson further admitted in his deposition and at trial that he did not want to see the videotape because he had seen enough people get hit.
Additionally, plaintiff contended that it was not necessary for Mr. Edson to read through his paperwork because the train was already delayed over an hour before leaving the station, and he had time to read the paperwork at that time. Also, there were no changes to the route or any safety warnings, and therefore, it was not required for Mr. Edson to look through paperwork while operating the train. Mr. Byrnes testified that it is not appropriate for engineers to review paperwork while operating a train and that the co-conductor or co-engineer can assist with the paperwork if needed.
Defendant Dr. Hector Lopez contended that based on his assessment and evaluation plaintiff was stable, and it was safe and appropriate to discharge. Dr. Lopez further contended that plaintiff's pulse rate was abnormal but did not raise a clinical significance.
Defendant Rideout Memorial Hospital contended that under these circumstances it was not necessary to order a blood test to determine whether someone is clinically impaired. Rideout Memorial Hospital further contended that Nurse Gonzalez did not lose track of plaintiff, because he did not wait for the discharge instructions. Defendants additionally contend that it was not necessary for them to call law enforcement or make efforts to locate plaintiff.
Defendant Amtrak contended that their engineers, Mr. Edson and Mr. Haskin were not negligent, because at the time the incident occurred, they were changing subdivisions and had to refer back to the paperwork that he had received earlier that day. The paperwork was placed on his dashboard and he had to read that paperwork to refresh his recollection of what exactly he had to look forward to. Amtrak further contended that train operators do not sit with their eyes glued to the tracks searching for trespassers in the darkness of night, because they are busy operating the controls, looking at the gauges, looking at their paperwork, and making sure everything they are doing is right.
Defendant Amtrak additionally contended that Mr. Edson did not see plaintiff on the train tracks because he was lying near a switch box wearing dark clothes in the middle of the night.
Injuries and Other Damages
Physical Injuries claimed by Plaintiff:
Plaintiff suffered amputations to both legs above the knees as well as PTSD and depression.
Plaintiff’s Prosthetic Analyst, Drew Hittenberger recommended several types of prosthetics.
Plaintiff’s Life Care Planner, Carol Hyland and Physical Medicine & Rehabilitation Expert, Dr. Maureen Miner, recommended several different types of treatments and medical devices such as: Physiatry/Pain Management, Orthopedists, Spine Surgeons, Dermatologists, Wound Clinics, Psychologists, Psychiatrists, Chiropractors, Physical and Occupational Therapists, Myofascial Therapists, Emergency Room Visits, Hospitalizations, Medications, Gym Programs, Canine Companion, Power and Manual Wheelchairs, Segways, Adjustable Beds, Vehicle Modifications, and Chore Services & Attendant Care and more.
Additionally, plaintiff’s Vocational Expert, Ricky Sarkisian projected plaintiff's loss in future earnings capacity as a truck driver or a heavy equipment operator.
- Special Damages Claimed - Future Medical: $6,112,359.00 (with Agency-hire attendant care) or $6,090,829.00 (with Private-hire attendant care)
- Special Damages Claimed - Future Lost Earnings: $1,491,117
Amtrak served an offer of judgment a year prior to trial for $150,000. Dr. Lopez and Rideout made no offers. Dr. Lopez had a $1M policy from The Mutual that rejected and opened.