Dead girl’s dad weighs suing hospital

Monday, Nov. 17, 2003 | 10:50 a.m.

The father of a 13-year-old girl who died after being released from University Medical Center is awaiting the autopsy report to decide if he will sue the hospital for medical malpractice, his attorney said Friday.

Hours before she died early Nov. 6, Tabatha Speas told a neighbor that she was sent home from UMC too soon, and the family has questioned whether a lack of insurance played a role in her early dismissal. She had been in critical condition at the Trauma Center after being hit by a car last month while crossing a street in the Southern Highlands area.

An initial internal review by the hospital determined Speas' care was not affected by her insurance status, according to a UMC statement. The issue is also under independent review by the state Department of Human Resources Health Division.

If Tabatha's father, Mike Speas, decides to sue University Medical Center for her death, he may be eligible for only $50,000 in damages under Nevada's 2002 medical malpractice laws, his attorney John Wawerna said.

Under the new law, anyone treating a trauma patient cannot be sued for more than $50,000 unless gross negligence is proven. The Legislature established the cap during a special session to save the UMC Trauma Center, the only top level trauma center in the region, from closing due to soaring medical malpractice costs.

Before the law's enactment there was a $50,000 cap on UMC employees but now the cap applies to anyone who treats either an emergency room or trauma patient at any public hospital.

Whether the case of Tabatha Speas falls under the gross negligence provision is still uncertain, as lawyers familiar with the malpractice laws said they did not know enough facts of the case. There is also some question as to whether Tabatha Speas would be considered a trauma patient since she died after being released from the hospital.

"The family should do an investigation, but it may not lead to malpractice action," attorney Dean Hardy, past president of the Nevada Trial Lawyers Association, said last week.

"There are no sadder stories than losing a child, and it's tragic and sad for everyone involved," he said. "And I am certain then the entire trauma team is grieving almost as much as the family."

Speas and her friend, Adriana Lauzon, also 13, were struck by a car as they crossed Shinnecock Hills Avenue near Tucci Street on Oct. 15. Both girls were airlifted by helicopter to UMC after the accident. Lauzon died Oct. 21 at UMC.

Speas was in a critical condition when she arrived at UMC after the accident and was in a coma until Oct. 31, her father said. The hospital discharged Speas two days later, Nov. 2, and she was back in the emergency room Nov. 3. UMC discharged her again the following day, and she died two days later.

The family did not have health insurance, friends said.

The girl's father, Michael Speas, said his daughter was discharged from the hospital without instructions for follow-up treatment or rehabilitation.

UMC released formal statements Thursday and Friday repeating its previous stance that the hospital "provides the highest quality of medical care to every patient, regardless of ability to pay" and that this is "a cornerstone of the hospital's mission."

"Patient care always comes first at UMC and questions about payment are way down the list, especially if we are dealing with an emergency or trauma patient," UMC Interim Chief Executive Office Mike Walsh said in the prepared statement.

As the largest public hospital in the state, UMC treats more than half of the cases of indigent, uninsured and underinsured patients in Southern Nevada. In the fiscal year that ended June 30, the hospital forgave more than $176 million in charity care charges. That was above the nearly $48 million in federal and county money UMC receives through state programs to provide for indigent care, spokeswoman Cheryl Persinger said.

Persinger said the hospital's statement was released in response to media inquiries and not out of fear of a possible lawsuit.

A financial task force for the cash-strapped hospital earlier this year listed the increase in uninsured and indigent patients as the primary reason for the hospital's financial distress. The county issued a new financial plan in March that more aggressively pursued payment information from patients, and one of the topics currently under discussion to alleviate the institution's financial woes is to find ways to shorten the length of hospital stays.

"The question would be, and I think the court would have to establish that, is if the child qualifies for a trauma injury," Larry Matheis, executive director for the Nevada State Medical Association, said. "It is unusual for someone to be released without some observation."

There are three levels of negligence under the law, Hardy said: negligence, which can be as simple as a physician's failure to diagnose something; gross negligence, which involves exceptional circumstances where appropriate diligence on the part of the physician should have detected and prevented further deterioration; and intentional misconduct, in which the physician knowingly did or did not do something that led to further deterioration of the patient's health.

"You have to look at the facts of every claim, the standard of care in that community, whether they breached the standard of care and how outrageous that breach might have been," Hardy said.

If the family can prove gross negligence or if Tabatha Speas is not considered as a trauma patient, there may be other caps that apply under the new malpractice laws, including a $350,000 cap on non-economic damages such as pain and suffering, Matheis said. That cap, too, can be circumvented for gross malpractice or "exceptional circumstances." All cases, regardless of circumstances, are capped at $1 million under the new law.

Attorneys who lobbied both for and against the medical malpractice laws said Friday that they doubted the case would have very much effect politically. Lawyers such as Hardy said the case may serve as another illustration of their argument that the legislative policy would lead to gross injustices for patients like Speas, but "you don't try to legislate based on one case."

Karen Odell-Barber, spokeswoman for Keep Our Doctors in Nevada and supporter of the medical malpractice laws, said she did not wish to speculate on the impact the case may have, but that she doubted it would affect her organization's upcoming initiative to strengthen the medical malpractice laws in favor of doctors on the November 2004 ballot.

She said 89 percent of the public is in favor of the initiative, which stops double dipping in legal settlements, limits runaway lawyer fees, allows payment plans for damages exceeding $50,000, strengthens the $350,000 cap on non-economic damages by eliminating some of the exceptions and calls for defendants to be liable for damages in proportion to their share of the blame.

Jim Wadhams, lobbyist for Nevada's insurance companies, said no legislation can make things right for the Speases.

"Whatever the decision is, the sad situation is that there is a life that is lost," Wadhams said. "And no matter how much money is spent, it doesn't take care of that particular tragedy."

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