Professional Negligence Law Reporter

Christina Flach, the wife of former tennis champion Kenneth Flach, 54, called the Kaiser helpline and was connected to a teleservice representative. Christina was then transferred to advice nurse Cynthia Girtz, an employee of The Permanente Medical Group, Inc. Christina told Girtz that over a six-day period, Kenneth was weak, wheezing, coughing up orange-colored mucus, and had burning in his chest. Girtz set up a telephone appointment for Kenneth with physician John Culbertson. After this call, which lasted approximately three minutes, Culbertson diagnosed an upper respiratory infection and prescribed a cough suppressant, nasal rinsing, and rest.

The next day, Christina drove Kenneth to a Kaiser emergency room, where he was diagnosed as having acute respiratory failure, renal failure, and septic shock due to community-acquired pneumonia. Kenneth was treated with antibiotics and subsequently transferred to another facility, where he later died. He is survived by his wife and four adult children.

Christina and the children claimed that Kaiser Foundation Health Plan, Inc., Kaiser Foundation Hospitals, and Kaiser Permanente Medical Group, Inc., were liable for Girtz’s failure to contact the on-call advice doctor about Kenneth’s condition or send him to an emergency room in light of his orange-colored sputum. The claimants also asserted that Culbertson should have referred Kenneth for a timely X-ray that day.

An arbitrator awarded almost $3 million, including approximately $1.7 million for Kenneth’s future lost earning capacity.

Citation: Flach v. Kaiser Found. Health Plan, Inc., Arbitration Award, Feb. 9, 2022.

Claimant counsel: AAJ member Scott D. Righthand, AAJ member William A. Levin, AAJ member Angela J. Nehmens, and Samira Bokaie, all of San Francisco.