The widow and children of Ken Flach, a tennis champion who lived in Novato, have been awarded nearly $3 million following a medical malpractice lawsuit against Kaiser Permanente.
The arbitrator who presided over the case, retired judge Donald Sullivan, found that breaches of the standard of care by a Kaiser advice nurse and doctor were factors in causing Flach’s death.
All Kaiser patients are required to agree to have their cases settled by arbitration rather than through the normal court process.
Christina Flach says her husband’s death resulted from a fundamental problem with the way Kaiser manages its patients.
“They insist that you go through an advice nurse as opposed to just calling the doctor directly to set up an appointment, which was what I was trying to do,” Flach said. “You should have the option of calling your own doctor.”
On March 7, 2018, Christina Flach tried to call her husband’s primary care physician, but due to Kaiser’s communication policies, the call was routed through the company’s telephonic advice nurse system.
Flach was first questioned by a teleservice representative who then connected her with the advice nurse. Flach told the nurse her husband had severe bronchitis and a fever, according to Sullivan’s decision, which detailed the events leading to Flach’s death.
“I have never seen him so sick,” she said on a recorded call. “Stuff is coming out of his chest. His chest is really in pain. He is tired.”
After a 15-minute conversation, the nurse scheduled a telephone appointment with the physician to take place four hours later.
When the doctor called Flach at 3:37 p.m., he spoke with him for approximately three minutes. The doctor advised Flach to take several over-the-counter and prescribed medications, including codeine, and call him if his condition got worse.
Christina Flach said, “The problem with cough medicine with codeine is it suppresses your breathing so if you have an infection it is going to grow like a wildfire. That is what killed my husband.”
At 8:20 a.m. the next day, Flach sent an email to his doctor.
“I had the worst night, sweating and coughing up blood, my chest is really tight and sore, can’t breathe very well. So weak and dizzy. Can I come in this morning?”
At 8:29 a.m., the doctor replied, “You need to see me today.”
Sometime after receiving the doctor’s email, however, Flach’s wife decided to drive her husband to the emergency room at Kaiser’s San Rafael Medical Center.
At the hospital, emergency room physicians diagnosed Flach with a severe case of community-acquired pneumonia made worse by an infection with methicillin-resistant staphylococcus aureus.
The ER doctors also determined that Flach had acute respiratory failure, renal failure, septic shock, hemoptysis and neutropenia, presumably due to the pneumonia. Hemoptysis is spitting up or coughing blood, while neutropenia is a deficiency in a certain type of white blood cell.
Flach was given multiple antibiotics within the next few hours, but by then the illness had progressed too far, and he died on March 12, 2018. He was 54.
The official cause of death was listed as pneumonia, leading to respiratory failure, but the septic shock dramatically worsened the illness.
Kaiser spokesperson Karl Sonkin, in an email, said, “Prior to 2018 and to today, we have rigorous screening and treatment guidelines based on the latest scientific evidence and medical protocols including for sepsis. A sepsis care countdown begins as soon as at-risk patients enter the hospital or show signs of sepsis, enabling aggressive early intervention and monitoring.”
Christina Flach said, “It doesn’t matter what their practices are, if people aren’t seen they’re going to die.”
In his decision, Sullivan wrote that by the time Flach came to the emergency room, “no antibiotic treatment would have been able to change his course.”
Sullivan wrote that the failure of the advice nurse and Flach’s primary physician to set up a visit on March 7 “resulted in Mr. Flach’s demise.”
In her suit, Christina Flach also alleged that Kaiser’s practice of using advice nurses to screen doctor calls constitutes institutional negligence.
Scott Righthand, Flach’s attorney, said Kaiser employs several hundred advice nurses who “sit in an office building in Vallejo in front of computers.” Righthand said the computers provide the nurses with algorithms that the nurses use to decide how to respond to different symptoms.
Righthand said the algorithm for cold and flu symptoms does not provide an option for sending a patient to the emergency room, although advice nurses are given the prerogative to depart from the script if they deem it necessary.
According to the arbitration record, the advice nurse was asked, “So it was your directive from Kaiser to keep infectious patients out of the clinic and to set up telephone calls with doctors instead; true?”
“Generally speaking, yes,” she said.
Sullivan, however, ruled that it was the nurse’s fault for not properly exercising her nursing and either sending Flach to the emergency room or scheduling an in-person examination.
Sullivan noted that another Kaiser physician testified that during the cold and flu season, Kaiser’s three appointment and advice call centers receive a combined total of 55,000 calls per day, 30% of which involve cold, cough, flu and upper respiratory infection matters. The physician said that to refer all these callers to emergency rooms or in-person examinations would be a “workplace disaster.”
Righthand said, “They can’t manage it. So instead of hiring more doctors, they hire more advice nurses.”
According to the Office of the Independent Administrator, the neutral entity that administers all Kaiser arbitrations, between 2020 and 2016, Kaiser received 3,009 demands for arbitration with an average of 94% being for malpractice. The requests averaged about 600 per year with an average of just 7% resulting in a hearing. Of that 7%, plaintiffs prevailed an average of 35% of the time.
California law caps damages for pain and suffering in medical malpractice lawsuits at $250,000.
“What that means,” Righthand said, “is it is almost an impossibility businesswise to do any case that is limited to that because the cost of doing the case is substantial.”
He said the Flach case was possible because the family was entitled to lost earnings due to the fame of the former professional tennis player.
Flach won four Grand Slam titles in men’s doubles and two in mixed doubles during his career. He and playing partner Robert Seguso also won a gold medal for the United States at the 1988 Olympics in Seoul.