Sister’s claim against Kaiser denied in arbitration

Kaiser Permanente’s arbitration process denied the claim of a Patterson woman who filed an emotional distress complaint after her sister died at Kaiser Modesto Medical Center.

Genna Cousineau sought compensation from Kaiser Permanente for negligent infliction of emotional pain after her sister’s condition was repeatedly misdiagnosed by the hospital’s emergency room staff in January 2013.

Nicole Dias of Turlock died from sepsis Jan. 19, 2013. Her family believes she would be alive today if doctors had not assumed she had sciatic nerve pain during three previous emergency room visits that week.

An autopsy determined that Dias had an infected abscess in her right pelvis that triggered a fatal blood infection. Cousineau was with her sister as emergency room staff refused to admit her to the hospital and as Dias fought for life when she finally was placed in intensive care.

As her condition worsened, Dias’ throbbing pain spread from her lower body to her chest, upper back and arms, but no blood tests were ordered and she was placed in a room Jan. 18 only because ER staff thought she was suicidal. The autopsy concluded the staph infection had spread from her pelvis through the blood vessels and severely damaged her lungs, heart and kidneys.

Gary Davis, an arbitrator chosen to hear the case, ruled that Cousineau’s complaint did not meet legal requirements for recovering emotional distress damages in cases in which someone has observed a loved one injured by malpractice. Citing a subtle but crucial point in case law, Davis ruled it was not obvious to the plaintiff that the emergency room care given to Dias was inflicting injury.

“The fact that the care might have results in misdiagnosis and unsuccessful treatment ... does not lead to the allowing of this claim,” Davis wrote.

Cousineau and Dias’ husband were required to file their separate claims for legal remedies through Kaiser’s arbitration process. People who enroll in Kaiser health plans sign away their rights to have medical negligence complaints heard in court.

Cousineau’s arbitration hearing was held Nov. 4-5 in a conference room of the JAMS Resolution Center in Sacramento. Davis was chosen as arbitrator by Kaiser and the plaintiff’s attorney, Daniel Glaser of Southern California.

“As far as I am concerned, the decision was legally wrong, but there is nothing I can do about it,” Glaser said last week. The ruling cannot be appealed, the attorney said.

Because of the decision, Cousineau said, there will be no accountability for her sister’s death.

“I don’t understand how a person with a beating heart, with a conscience, could look at all the evidence and do nothing to punish those responsible,” Cousineau wrote in an email. “Nicole deserved justice. I fought the battle tirelessly and not for money, because there is no price tag for her life. She should be here today enjoying her children, enjoying her family.”

Cousineau has said she suffered severe emotional pain from her sister’s death, had pregnancy complications in early 2013 and continues to feel she let her sister down by not advocating hard enough for her care.

Deborah Friberg, senior vice president and manager for Kaiser’s Central Valley service area, released a statement last week: “Nicole Dias’ death is a tragedy and we express our sorrow and condolences to her family and friends. Out of respect for the privacy of our patients and as required by law, we cannot comment on the details of this or any individual case.”

Ryan Dias, Nicole’s husband, has a wrongful death claim against Kaiser scheduled for a hearing in March. The complaint seeks damages on behalf of Dias and three children for medical negligence, emotional suffering and loss of income. His complaint may qualify for compensation above the state’s $250,000 cap on emotional distress damages because Nicole Dias had been working. She was a customer service employee for E&J Gallo Winery.

In California, people are allowed to sue licensed health care providers if they suffered emotional distress from observing a negligently inflicted injury. The plaintiffs, referred to as “bystanders” in legal parlance, must be a close relative of the victim, have watched the injury occur and understood the negligent act was causing injury.

Cousineau’s complaint primarily focused on her sister’s Jan. 17 emergency room visit. Kaiser agreed Dias should have been admitted to the hospital on that date and would have survived if the infection had been treated with antibiotics and supportive care.

The arbitrator denied the claim on grounds it was not obvious what was causing Dias’ pain and Cousineau did not know her sister had a blood infection. According to Davis’ ruling, the precedent-setting court cases have allowed for damage awards only to plaintiffs who were fully aware of what produced the injury.

For example, a person watching a family member’s healthy arm being amputated would be eligible for compensation. The ruling said the Supreme Court would need to review additional cases to further clarify the law.

Glaser said that Kaiser manipulated the complaint process before it was chastised in a state Supreme Court decision. That led to creation of the Office of the Independent Administrator, which has overseen Kaiser’s arbitration system since 1999. The independent office provides a list of neutral arbitrators and strives to make sure the arbitration is fair and timely and costs less than typical lawsuits.

According to the OIA’s report for 2013, almost half of Kaiser members who filed claims received some compensation, either through settlements or after a hearing was conducted. The report says 283 (or 44 percent) of the 645 cases in California were settled; 32 percent were withdrawn or abandoned by claimants; 11 percent were decided after hearings; 9 percent resulted in summary judgment in Kaiser’s favor; and 3 percent were dismissed by arbitrators.

Of the 70 complaints that went to hearings last year, Kaiser won 63 percent of the time and claimants prevailed in 37 percent of cases. Arbitrators awarded damages to claimants in 26 cases after hearings, with the payments ranging from $10,510 to $4.95 million, or an average of about $500,000.

This story was originally published December 27, 2014 at 5:29 PM with the headline "Sister’s claim against Kaiser denied in arbitration."