Tuesday, February 7, 2012

VSED: Legal Complaint Alleges that Heirs Manipulated Doctors to Kill Father

Grim Complaint Against Kaiser Hospital

However, Hector Noval says, two of his sisters, Lourdes Frost and Tania Noval, told Kaiser doctors, "falsely and fraudulently," that their father had "'advanced' Parkinson's disease" and had been declining for 6 months before his hospitalization.

He claims that his siblings' false and fraudulent statements included "that he 'would not want to be hooked to a machine like a ventilator,' even if just temporarily, and that 'he had expressed this to [his] daughter both when he is well, and when not so well.' Frost and Noval told defendants that decedent 'would not [have] wanted to be resuscitated if he is to pass away ... he would want to die peacefully if that was to happen.' Each of these statements were untrue. Defendants performed no diligence into their veracity and accepted them as true."

Neither sister is named as a defendant.

Plaintiff Noval claims that on the day his father was admitted, April 28, 2010, he "expressed his desire that decedent be transported to Cedar Sinai in Beverly Hills, California for treatment and that he not be treated at Kaiser. Defendants acknowledged these desires but refused to honor them." (Emphasis in complaint.)

Noval says he has three adult siblings. He says his sisters Lourdes Frost and Tania Noval "desired decedent's death to collect their multimillion-dollar inheritances." He claims that Tania Noval "had a pre-existing relationship with [defendant social worker Anthony] Tapia.

Hector Noval claims that after his father was "sedated for comfort," Frost filed with Kaiser a copy of their father's durable power of attorney for health care, dating from July 1999. He says the power of attorney named him and Frost as their father's attorney in fact, and that California law required the defendants to get consent from both of them to make health care decisions for their father.

But he says, "Defendants did not of this. They never disclosed the DPOA [durable power of attorney] to plaintiff or advised him of his rights or responsibilities therein. Neither did Frost or [defendant] Noval. Plaintiff was never made aware of the DPOA or his rights and responsibilities therein."

In the days that followed, Hector Noval says, his father's doctor, defendant Richard Bradburne, and social worker Tapia met with his sisters and discussed their father's condition, medical outlook and quality of life.
On May 3, he says, Dr. Bradburne prescribed "1-2 more weeks of continued aggressive treatment for the decedent. Plaintiff was at Kaiser at the time and again requested that defendants transport decedent to Cedar Sinai or a like facility. Defendants refused. They never disclosed the DPOA or discussed it with plaintiff, and plaintiff went unaware of his rights in the matter."

Hector Noval claims that on May 4 his sisters "met with Tapia and told him that 'the entire family' desired terminal extubation, i.e. the withdrawal of treatment and death. 'The entire family' did not desire terminal extubation. Frost and [Tania] Noval instructed Tapia to contact a Catholic priest to visit [Victorino] Noval and read his last rites. Tapia did so. Tapia then communicated to defendants that the 'family' desired terminal extubation. No one contacted plaintiff or informed him that any of this was taking place. "Plaintiff was unaware of all of this," according to the complaint.

Hector Noval claims that when he entered the Kaiser hospital on May 5, "Tapia appeared with security at the entrance and had plaintiff searched by security for weapons. No explanation was given. Tapia then took plaintiff to a conference room and told him that decedent was going to be terminally extubated the following day. He gave plaintiff no explanation for the change in treatment and didn't discuss the DPOA with plaintiff or advise plaintiff that he was a 'joint agent' for health care decisions and had the authority to prevent, delay, or postpone it."

Hector Noval says he asked that terminal extubation be delayed and asked again that he father be sent to Cedars Sinai. The complaint states: "Tapia tried convincing plaintiff otherwise but ultimately agreed to communicate his request to delay extubation and said he would 'continue to follow up' with plaintiff and have 'continued conversations' with him 'regarding treatment and terminal extubation.' This was plaintiff's only conversation with Tapia regarding treatment and extubation. They never spoke again despite Tapia's promise.

"Plaintiff left and retained counsel.

"Tapia recorded in decedent's medical file that 'the entire family is in agreement with the terminal extubation except now [plaintiff] showed up today and is causing conflict.' He also recorded that plaintiff 'had history of substance abuse and paranoid personality.' Neither statement was true, and neither was discussed with plaintiff. Tapia wrote them in the record after hearing them from Frost and {Tania} Noval and without performing any diligence or due care into their veracity." (Brackets, but not braces, as in complaint.)

Noval says Tapia "spread these misstatements to defendants, including Bradburne, who wrote in decedent's medical record: 'family discussion, all siblings except one son [plaintiff] and wife are in agreement [regarding terminal extubation] ... the son in disagreement [plaintiff] is a habitual drug user/addict and his judgments and motives are likely not sound in the context of acting as a surrogate decision maker.'" (Brackets as in complaint.)

Hector Noval adds: "One single telephone call to plaintiff or related effort would have cleared the matter. Yet no defendant sought to communicate directly with plaintiff. He was unaware these allegations were being made about him."

The complaint continues: "Bradburne has since apologized for the medical record, stating that Tapia 'had informed me at some point that this information [about plaintiff] had been alleged.' 'That is not a fair statement actually [about plaintiff].' 'I'm making a statement of fact there and that's not true.' 'The keyword that's left out of that sentence is "alleged."' ... He said 'frankly, I regret writing that way.'" (Brackets, but not ellipsis, as in complaint.)

Hector Noval claims that he called a meeting with the sisters on the evening of May 5. He says his sisters produced a will and a trust, and told him to "stop complaining about decedent's death because he'd inherit millions of dollars."
At the meeting, Hector Noval says, he and his lawyer demanded that no terminal extubation take place without his knowledge and consent and that when reasonable, their father be taken off sedation so he could communicate his wishes and direct his own care. He claims that both sisters "agreed to honor these demands. This was plaintiff's and counsel's last communication with Frost and/or Noval before decedent's death."

Hector claims that on May 6, his two sisters met with Kaiser, and said "that plaintiff had 'threatened violence' the evening before and that they were 'afraid' of him. These were false and fraudulent misrepresentations designed solely to discredit and disparage plaintiff and convince defendants to terminally extubate pursuant to their instructions."

He claims that had any of the defendants "made one single telephone call to plaintiff or related effort, they would have discovered the allegations of violence were untrue, that plaintiff had retained counsel, and that Frost and Noval were committing egregious fraud and fraudulent concealment to accomplish their father's death."

On May 6, Hector says, the defendants referred this "true conflict" to defendant Dan Wilson, "a 'bioethics director' and/or on the 'bioethics committee' at Kaiser, to perform an analysis into how to handle decedent's health care going forward."

Hector claims Wilson interviewed his sisters - but not him - "and concluded plaintiff was in a 'clearly impaired condition' and that Kaiser should proceed with terminal extubation at the desires of 'joint agent [Frost] and the remaining family members.'" (Brackets in complaint.)

Hector says that Wilson never met with him, never communicated with him, and that no one at the hospital ever informed him of Wilson's involvement or conclusions.

"Plaintiff believed, instead, from his discussion with Tapia on May 5 that Kaiser would communicate with him before terminal extubation, and from his discussion with Frost and [Tania] Noval on the evening of May 5, that Frost and Noval would not seek terminal extubation without obtaining plaintiff's expressed consent beforehand," the complaint states. (Brackets not in complaint.)

Hector claims that on May 6, "Frost told Tapia that she was traveling to a meeting with plaintiff and his counsel and that the family 'plans to move forward with the extubation [the next day].' This was a false and fraudulent misrepresentation. There was no such meeting ever scheduled with plaintiff and his counsel, and plaintiff was never in agreement with extubation." (Brackets in complaint.)

Hector claims that by then his father had shown "material improvement in his health condition," which Dr. Bradburne noted. He claims Bradburne noted, "'currently, [he] does not meet the ordinary criteria for extubation.'" (Brackets in complaint.)

Hector adds: "Bradburne never communicated any of this to plaintiff."

He claims that in a sworn deposition Bradburne was asked if extubation could have been postponed. "He said 'Absolutely,'" the complaint states. "He said that if anyone, including plaintiff, sought postponement, he would have done so. When asked how long he would have postponed extubation, he said 'Now till the cows come home.'" Hector claims that on May 7, moments before his father's terminal extubation, Bradburne told his sisters that their father's condition had further improved: that the pneumonia was clearing, his temperature had returned to normal, the ventilator had been replaced with a CPAP [continuous positive airway pressure] mask, "which meant there were no tubes, just a mask over his mouth and nose", that his father was "in no distress," with normal heart rate, stable blood pressure, and that he was "'awake to voice with eye opening and eye contact for more than 10 seconds.'"

He says Bradburne gave his sisters "the opportunity to postpone extubation at that moment. They declined."

Hector says Bradburne tasked Wilson with ensuring that he, Hector Noval, was aware of his father's terminal extubation and that he was still in favor of it. Hector says that Wilson never contacted him; he simply asked Frost.

"(A)ccording to his note in decedent's medical file, '[Frost] confirmed that her brother Hector has agreed to follow family wishes regarding extubation and has decided not to be present at actual event,'" the complaint states. (Brackets in complaint.)
Hector says that after his father's breathing tube was removed, Victorino Noval "maintained spontaneous breathing and satisfactory oxygen saturation (93-97%) on this 'simple mask.'" He says Bradburne again gave his sisters the opportunity to postpone their father's death. He says both sisters declined, and Bradburne quadrupled Noval's morphine "to quicken his death" and "effectively ended oxygen support".

Hector says his father died 4 hours and 40 minutes after being extubated, "after 85 minutes fighting to survive with effectively no oxygen and heavily sedated."

Hector says he learned his father had died when he arrived at the hospital for a visit that evening. He says his sisters told him that Kaiser "had done all they could and that the decedent had passed away in spite of active treatment, not because of any withdrawal of treatment or terminal extubation."

"At that point there was no reason to believe any wrongdoing had taken place," the complaint states. "Plaintiff had no knowledge of DPOA, no knowledge of the allegations of Frost and [Tania] Noval to defendants, and no knowledge of defendants' withdrawal of treatment and terminal extubation. He wasn't even aware of decedent's material improvement over the final days of his hospitalization. No one had communicated any of this to him. The only communications he received were from Frost and [Tania] Noval representing that decedent was gravely and terminally ill, that he was in agony, and that there was no likelihood of survival." (Brackets not in complaint.)

Hector says he learned of the durable power of attorney after his sisters' attorneys produced it with other estate planning documents they had been concealing. Only then, he says did he order his father's medical records from Kaiser and discover the facts.

Hector claims that in sworn depositions, both Bradburne and Tapia stated that Kaiser's policy is "to do all that is necessary to inform healthcare agents of their rights and responsibilities under a DPOA. They described past incidents wherein they would even search distant states and foreign countries for health-care agents and would even reach out to health-care agents through intermediaries and agents-of-the-agent. They testified with no doubt that defendants would go to great lengths to communicate with healthcare agents about their rights and responsibilities under a DPOA. It's that critical to a patient's care. Yet in this instant matter, defendants knew plaintiff, had his contact information, spoke to him and/or his family members multiple times, and had every opportunity to communicate with plaintiff about the DPOA and his rights and responsibilities therein, and they failed to perform even minimal diligence and due care in doing so. They undoubtedly wanted to believe Frost and [Tania] Noval and 'buried their heads in the sand.' This directly and legally caused the death of a relatively healthy, wealthy man with many more years left to live and love." (Brackets not in complaint.)

Hector Noval seeks damages and punitive from all the defendants on claims of willful misconduct, negligence, elder abuse, fraudulent concealment, constructive fraud, breach of fiduciary duty and wrongful death.

He seeks damages from Kaiser and Tapia for fraud and false promise; and damages from Kaiser and Bradburne for medical battery and lack of informed consent.

The corporate defendants are Kaiser Foundation Health Plant, Kaiser Foundation Hospitals, and Southern California Permanente Medical Group.

Hector Noval is represented by Casey Young of Newport Beach