This matter came on regularly for hearing pursuant to contractual agreement
between the parties. Claimants were present together with their attorney Joy
Smathers. Respondents were present together with their attorney Thomas M.
Minder from the law firm of Minder and Muro.
(see notes in red for the facts).

Claimant Thomas Callender became a Kaiser patient in 1977. It is his
contention that the physicians at Kaiser fell below the standard of care, that is
were negligent, in that they failed to recognize iron overload causing a liver disease
which eventually let to a liver transplant and further that the transplantation was
also delayed by one year due to this negligence: they failed to properly
phlebotomize him and keep his hemoglobin and hematocrit within proper levels
and that the delays in proper diagnoses and treatment increased his risk of
thrombosis and shortened his life span. His wife, claimant Joan Callender, brings
her own action for loss of consortium.

The complexity of this case arises not only from the voluminous records from
the Kaiser facility, but also a good deal of records from California Pacific Medical
(all their records show the diagnoses of hemochromatosis) Where plaintiff
treated subsequent to Kaiser and received his liver transplantation. In between,
claimant sought opinions from Dr. Kinney at the Sansum Clinic and Dr. Schrader
in San Francisco. In February 1997, Kaiser began to consider transplant and
biopsy, but
(Dr. Selcon, gastroenterologist from Kaiser said that Tom was not a
candidate for a liver transplant because of his heart problems and that Tom should
not have a liver biopsy because he would bleed to death)
claimant sought
treatment from Sansum Clinic on April 17, 1997 where he was diagnosed with
hemochromatosis and he then returned to Kaiser. Genetic hemochromatosis is a
disorder which leads to excessive accumulation of iron in the liver which, if
untreated, can lead to cirrhosis and end-stage liver failure. In July 1997, claimant
also sought an outside opinion from Dr. Schrader in San Francisco who was
provided with the Sansum medical records
. (He did not have any medical records
from Sansum Clinic in July 1997, only an abdominal ultra sound result. He did
have Kaiser medical records sent to him from Tom on July 15, 1997. Tom did not
get the complete medical records from Sansum Clinic until July 19, 1997--four
days after sending the Kaiser medical records to Dr. Schrader).
Dr. Schrader
indicated an inconsistency in the lab tests and discussed cirrhosis of the liver from
alcohol use as an alternative to claimant's problems.

The inconsistency in the lab tests were those of Kaiser's, not Sansum Clinic's. Dr.
Schrader did not discuss cirrhosis of the liver from alcohol use as an alternative to
Tom's problems but said on page 3 of his letter to Tom "The alternative diagnosis
to hemochromatosis that might explain these laboratory values is alcoholic
cirrhosis. I believe that a liver biopsy to measure liver iron concentration and
hepatic iron index is the best way to affirm or deny the diagnosis of
After becoming disillusioned by one gastroenterologist at
(Tom asked repeatedly to have a liver biopsy to confirm hemochromatosis
from Dr. Selcon but Dr. Selcon refused his request each time)
claimant was
referred to another. Dr Paulley, who determined claimant would have to be
approved by cardiology and be without alcohol ingestion to be placed on a
transplantation list.
(This even though he had not had a drop of alcohol for almost
a full year).
After referral to cardiology, claimant refused an angiogram after a
thallium test in September 1997.
(Kaiser did want to do an angiogram, which is a
very serious operation with a lot of blood loss but they would not do a liver biopsy
just a few months earlier because they claim Tom would have bled to death. Tom
also knew that he would be out of the Kaiser plan by 1/1/98 and then would be
able to seek excellent healthcare elsewhere without a risk of bleeding to death).
Claimant then switched to California Pacific Medical Plan (he got Cigna Health
Plan on 1/1/98 where Dr. Irons his new family physician sent him for a liver
transplant evaluation at California Pacific Medical Center. This is when the
claimant was approved and put on the transplant list, more than a full year after
Kaiser diagnosed his liver disease)
where he received his liver transplantation in
July 10, 1998.

The crux of this case turns on the various diagnoses, or absence thereof, of
hemochromatosis, polycythemia also called erythocytosis, polycythemia vera,
spurious erythrocytosis, the hemoglobin and hematocrit levels, iron overloads in
the body and liver, the viscosity of the blood and the use of phlebotomies in
treatment of claimant's conditions. In addition, at issue was the fact claimant had
suffered an acute anterolateral (anterior lateral) myocardial infarction in March
(It was March 1980 and it did heart damage at age 39) and a second
myocardial infarction in January 1994 (the second in 1994 and third in 1995 were
blockages and did no heart damage - now believed caused by the blood viscosity)
and contentions that claimant abused alcohol (there was never any lab tests of
proof nor any doctor report of abuse of alcohol in his medical records)
throughout his treatment at Kaiser.

Obviously, the arbitrator has not repeated all the evidence, facts or argument set
forth by the parties in their respective briefs, but has included herein only sufficient
detail to give meaning to this decision
(see notes in red for the facts).
This case was further complicated by the adroit examination by claimant of the
Kaiser treating physicians, some of who's conduct, based on the testimony, this
arbitrator finds fell below the standard of care.
(Is this not what the whole case was
about, falling below the standard of care? If Tom had been given the required
phlebotomies, as Dr. Heard ordered, it would have kept his iron levels down and his
blood thin).
However, the arbitrator further finds that there is no causation between
that negligence, or treatment below the standard of care, and claimant's claimed
injuries or damages. Claimant's only expert was Jeffrey Block
(Dr. Geoffrey Block)
from Pennsylvania who is Board Certified in Internal Medicine, Hepatology and
Transplant Medicine and who testified he is familiar with the standard of care within
this subject community. The arbitrator found Dr. Block to be very erudite, but also
found he spread himself a little thin in too many areas up to and including the
causes of heart disease.
(Dr. Block is an expert on hemochromatosis and knows
that too much iron can and does cause heart disease).
The respondents' experts
were Drs. Jerry Powell, professor of medicine and Board Certified in Internal
Medicine, Hematology and Oncology, and Neil Kaplowitz, Board Certified in
Internal Medicine, Gastroenterology and a professor of gastrointestinal and liver
diseases.Dr. Block's assumption of liver failure rests on his assumption that
claimant's liver disease was caused by iron overload which is also his theory as to
why phlebotomies were necessary. He found not only the physicians at Kaiser were
negligent, but also the physicians at California Pacific Medical Center and the
claimant's current treating physician, however, he backed away this latter opinion at
time of hearing.
(Dr. Block did not back away but explained that he was not aware
at the time of deposition that Drs. Gish and Irons were treating Tom for iron overload
and Dr. Gish ordered phlebotomies on November 2, 2000. When he learned Dr. Gish
had ordered the phlebotomies is when he realized that they had the situation under
control and not negligent).
Contrary to this, Drs. Powell and Kaplowitz testified that
iron overload played no role in claimant's cirrhosis of the liver
(Neither are
hemochromatosis experts)
and that iron overload could not have occurred based on
the fact the explanted liver showed almost no accumulation of iron, nor were there
sufficient phlebotomies over the time period involved to remove iron from the blood
to result in merely the trace iron that claimant had in his liver at the time of biopsy and
observed on the pathology of his native liver.
(The liver biopsy done 3/98 prior to transplant did show iron in the native liver and the diagnoses was cirrhosis, secondary to hemochromatosis). An article submitted by claimant contained a good dissertation on numbers of phlebotomies Iron in the blood does not necessarily ipso facto equate with iron deposits in the liver (This is why accurate blood testing need to be done) which, under claimant's theory, would be a necessary prerequisite. The use of alcohol may have been a primary cause of the liver failure as the experts, and other physicians, opined Dr.
Kaplowitz also opined the liver failure could be cryptogenic.
(Dr. Kaplowitz is an
expert in regards to alcoholic cirrhosis yet he was unable to say for certain that
Tom's liver damage was caused by alcohol. Not being an expert on
hemochromatosis he said it could be cryptogenic).
In the admit note of October 8,
1996 the claimant's history is that claimant "was drinking his usual vodka" and on
discharge on October 11, 1996, the diagnosis was acute pancreatitis secondary to
alcoholism, and later on October 23, 1996 claimant was informed that to the
diagnosis was added alcoholic hepatitis.
(The admit note was repeated over and
over from doctor to doctor but was noted at arbitration that the "was drinking his
usual vodka" was said by a male 52 years and a retired forklift operator. Tom was
56 years old and is a retired communications technician).
Though the arbitrator
does not feel that claimant's admitted alcohol intake was that excessive, it may be
that chemically his body could not even tolerate the amount he consumed or, as
some physicians postulated, he was not being entirely candid. In any event, based
on the evidence
(What evidence) the arbitrator does not find that the liver disease
was caused by iron overload. Based on the respondents' expert testimony, the
arbitrator further finds that there is no causation between claimant's reported
hemoglobin and hemocratic levels and the effect on the liver transplantation, nor
any detrimental effect on the heart with respect to the risk of stroke or myocardial
(If Tom would have been diagnosed with iron overload in 1982 as the
records show there was a problem, his blood would have been thinned and the
arteries may not have been blocked)
Weighing the evidence, even accepting
claimant's expert's testimony, the arbitrator was unable to find that claimant's
myocardial infarction were caused, or the risk increased by the viscosity of his blood.
(The evidence, we believe, could not have been more evident. Using the 3x4 foot
chart at the arbitration showing how Tom's HCT and HGB were never within normal
range from 1982-1988 even with the 25 phlebotomies, shows his body was storing
iron or he would have been anemic).
In addition, the arbitrator finds, based on the
evidence that it would be more speculation to render any opinion that Kaiser was
responsible for any delay in the eventual liver transplantation.
(Kaiser first
mentioned a liver transplant as early as February 1997 but Tom was never sent
to be evaluated by a liver transplant team until he was out of Kaiser and with
Cigna Health, delaying him the one full year of being on a waiting list).
As was
indicated earlier, though the arbitrator does find that there was conduct by Kaiser
that fell below the standard of card
(Kaiser physicians are not qualified to evaluate
patients for a liver transplant. A transplant team from UC Davis Medical Center
should have evaluated Tom as soon as his end stage liver damage was diagnosed.
A patient must be evaluated and approved by a qualified team of experts and then
put on a waiting list. Being delayed being on a waiting list did cause more physical
and emotional problems for the claimant. It is also believed that UC Davis Medical
Center had lost their credentials to do liver transplantation during that time, making
it more expensive for Kaiser to give their patients required transplants).
There is no
causation between that negligence and any of the claimed damages by claimants.
The claimants have therefore failed in their burden of proof by preponderance of the
evidence in establishing liability as to respondents.
DATED: January 5, 2001
                                                                HON. BENJAMIN A. DIAZ
                                                                Superior Court Judge -Retired

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