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Denver District Court
Denver County, Colorado
1437 Bannock Street, Rm. 256
Denver, CO 80202
Plaintiff: SAM FISHBEIN, surviving spouse of
LESLIE FISHBEIN
▲COURT USE ONLY ▲
Defendants: DANIEL BROOKOFF, M.D.; HCA INC.,
a Tennessee corporation; HCA-HEALTHONE, LLC,
d/b/a Presbyterian/St. Luke’s Medical Center, and
HEALTHONE CLINIC SERVICES, LLC
Attorneys for Plaintiffs:
Jim Leventhal, #5815
Lorraine E. Parker, #21446
Peter A. McClenahan, #41044
Leventhal, Brown & Puga, P.C.
950 S. Cherry Street, Suite 600
Denver, Colorado 80246
Phone Number: (303) 759-9945
Case Number: 08CV9281
Courtroom: 1
SECOND AMENDED COMPLAINT AND CERTIFICATE OF REVIEW
Plaintiff Sam Fishbein, through counsel, submits the following First Amended
Complaint and Certificate of Review:
I. CERTIFICATE OF REVIEW
Pursuant to C.R.S. § 13-20-602(3)(a), counsel certifies as follows:
a.
Counsel has consulted with licensed professionals with expertise in the
areas of the alleged negligent conduct as set forth in Plaintiff's Amended Complaint; and,
b.
The licensed professionals who have been consulted have reviewed all
known facts relevant to the allegations of negligent conduct as complained of in
Plaintiff's Amended Complaint; and,
c.
Based upon such facts, these licensed professionals have concluded that
the filing of the claims against Defendants does not lack substantial justification within
the meaning of C.R.S. § 13-17-102(4); and,
d.
The licensed professionals who have reviewed all known facts relevant to
the allegations of negligent conduct as contained in Plaintiff’s Amended Complaint meet
the requirements set forth in C.R.S. § 13-64-401.
II. PARTIES AND JURISDICTION
1.
Plaintiff Sam Fishbein, surviving spouse of Leslie Fishbein, is a resident
of the City and County of Denver, Colorado.
2.
At all relevant times, Defendant Daniel Brookoff, M.D. was a physician
licensed to practice medicine in the State of Colorado, holding himself out as a specialist
in medical pain management.
3.
At all relevant times, Defendant HCA, Inc. (“HCA”) was a for profit
corporation organized and existing under the laws of Tennessee with principal offices
located at One Park Plaza, Nashville, Tennessee.
4.
Defendant HCA transacted business in the State of Colorado at all relevant
times, including management of hospitals and physician recruitment.
5.
Defendant HCA maintains a division office located at 720 S. Colorado
Boulevard, Suite 220, Glendale, Colorado.
6.
At all relevant times, Defendant HCA-HealthONE, LLC, d/b/a
Presbyterian/St. Luke’s Medical Center (“HealthONE”) was a limited liability company
organized under the laws of the State of Colorado with a principal office located at 4643
South Ulster Street, Suite 1200, Denver, Colorado.
7.
At all relevant times, Defendant HealthONE Clinic Services, LLC,
(“Clinic Services”) was a limited liability company organized under the laws of the State
of Colorado with a principal office located at 4900 S. Monaco Street, Suite 380, Denver,
Colorado.
8.
The tortious conduct alleged herein occurred in the City and County of
Denver, Colorado.
9.
This court has personal and subject matter jurisdiction over this action
pursuant to CRS §13-1-124(1)(a), (b) and (c).
10.
Venue is proper pursuant to C.R.C.P. 98(c) because the negligence
occurred in the City and County of Denver.
III. GENERAL ALLEGATIONS
A.
Relationship of the Defendants to Each Other
11.
Plaintiff incorporates by reference paragraphs 1-10 as if fully set forth
herein.
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12.
Upon information and belief, Defendant HealthONE is a joint venture
between Defendant HCA and the Colorado Health Foundation.
13.
Upon information and belief, HCA is the managing partner of HealthONE
and is responsible for management of HealthONE hospitals, including Presbyterian/St.
Luke’s Medical Center (“PSL”).
14.
PSL’s senior management was, at all relevant times, employed by HCA.
15.
In addition to operating hospitals, HealthONE provides outpatient primary
and specialty care services through Defendant Clinic Services, a whole owned subsidiary
of HealthONE.
16.
HealthONE is, and was at all relevant times, the sole member and 100%
owner of Clinic Services.
17.
HealthONE’s Governing Board at all relevant times oversaw the activities
of Clinic Services to the same extent as the healthcare activities directly owned by
HealthONE.
18.
HealthONE and Clinic Services have, and had at all relevant times,
common officers or directors.
19.
At all relevant times, HealthONE financed Clinic Services.
20.
At all relevant times, the directors and executives of Clinic Services took
direction from HealthONE.
21.
HealthONE.
Clinic Services is, and was at all relevant times, the alter ego of
22.
Through its wholly owned subsidiary Clinic Services, HealthONE
employed physicians such as Defendant Brookoff.
23.
In or about 2005, PSL developed plans to grow revenue; one way to grow
revenue was to develop specialty medical service lines and recruit physicians for the
same.
24.
In 2005, PSL hired a Vice President of Business Development who was
tasked with strategic planning, physician recruitment and development of specialty lines.
25.
In the fall of 2005, PSL’s VP of Business Development Alan Qualls held a
meeting with Dr. Brookoff and two other physicians at which the idea for a pain
management program at PSL was discussed.
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26.
A pain program service line met the strategic objectives of PSL to grow its
specialty care, which would in turn generate more patients for the hospital.
27.
Defendants HCA, HealthONE and Clinic Services were, at all relevant
times, joint venturers having a common interest in property, an express or implied
agreement to share in profits or losses of their physician specialty practices, and engaged
in conduct showing joint cooperation in the venture.
B.
The Rationale for Hiring Dr. Brookoff
28.
On April 11, 2006, PSL’s Chief Operating Officer Hugh Tappan, Chief
Financial Officer Douglas Zehner, and Vice President of Business Development Alan
Qualls met to discuss employing Dr. Brookoff.
29.
Upon information and belief, COO Hugh Tappan and CFO Douglas
Zehner were employed by HCA.
30.
At all relevant times, PSL’s Chief Operating Officer was responsible for
most of PSL’s growth initiatives for adult service lines, including the proposed Center for
Medical Pain Management to be headed by Defendant Dr. Brookoff.
31.
PSL projected the proposed pain program involving Dr. Brookoff would
positively impact the hospital by generating diagnostic MRI and CT scans and
“downstream surgical volume” by referrals to surgeons for “carpentry” work.
32.
HealthONE and/or Clinic Services therefore gave Dr. Brookoff a Letter of
Intent concerning their intention to offer him a contract of employment.
C.
Promises Made to Dr. Brookoff
33.
Upon information and belief, the Letter of Intent made certain promises to
Dr. Brookoff concerning the support, personnel and resources his new employer would
provide for him in order to assure the safe and competent treatment of his patients.
34.
HealthONE, through Clinic Services, was to provide Dr. Brookoff with an
office, staff, examination rooms, medical equipment, drugs and medications, supplies,
and electronic medical record keeping.
35.
HealthONE projected Dr. Brookoff’s personnel needs as three full-time
equivalents: a receptionist, an office manager/medical assistant, and a nurse practitioner.
36.
HealthONE projected Dr. Brookoff would need three examination rooms.
37.
Dr. Brookoff’s equipment needs for his practice were handled by
HealthONE/PSL Vice President Alan Qualls.
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38.
The staff was to be provided by Clinic Services.
D.
The Hiring of Dr. Brookoff
39.
On May 1, 2006, PSL’s Chief Executive Officer Mimi Roberson signed an
Approval of Concept form approving the hiring of Dr. Brookoff.
40.
Upon information and belief, CEO Mimi Roberson was, at all relevant
times, an employee of HCA.
41.
On June 29, 2006, PSL VP-Business Development Alan Qualls assured
HCA-Continental Division CFO Gregory D’Argonne that employment of Dr. Brookoff
would have “huge downstream benefits” with other surgeons and radiology.
42.
Based at least in part on Mr. Qualls’ assessment, HCA-Continental
Division President Jeff Dorsey (who was also Clinic Services’ Senior Vice President) and
HCA-Continental Division CFO D’Argonnne authorized the employment of Dr.
Brookoff.
43.
On information and belief, both Mr. Dorsey and Mr. D’Argonne were
employees of HCA.
44.
In July 2006, a contract for employment was signed between HealthONE
and/or Clinic Services and Dr. Brookoff with a start date of November 1, 2006.
45.
At the time that HealthONE hired Dr. Brookoff through Clinic Services,
HealthONE and Clinic Services were aware that Dr. Brookoff intended to perform trigger
point and occipital nerve injections with Marcaine.
46.
At the time that HealthONE hired Dr. Brookoff through Clinic Services,
HealthONE and Clinic Services were aware that Dr. Brookoff was not an anesthesiologist
and could not intubate a patient who had suffered a cardiac arrest.
E.
HealthONE Marketed Dr. Brookoff to the Public
47.
PSL’s employees developed a website for Dr. Brookoff’s practice which
advertised that PSL was pioneering the “emerging field of Medical Pain Management”
with a center headed by Defendant Brookoff.
48.
The website developed by PSL for Dr. Brookoff’s practice stated that the
field of Medical Pain Management requires years of specialized training.
49.
The Defendants were thus aware, at all relevant times, that the field of
Medical Pain Management requires years of specialized training.
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50.
The website developed by PSL for Dr. Brookoff’s practice stated that the
field of Medical Pain Management requires a team approach with various specialists.
51.
Defendants were thus aware, at all relevant times, that the field of Medical
Pain Management requires a team approach with various specialists.
52.
The website developed by PSL for Dr. Brookoff’s practice stated that
Medical Pain Management patients should receive accurate and timely follow-up and
support throughout the course of their treatment.
53.
Defendants were thus aware, at all relevant times, that Medical Pain
Management patients should receive accurate and timely follow-up and support
throughout the course of their treatment.
F.
Events after Dr. Brookoff’s Practice Opened
54.
Defendant Brookoff’s practice, named Center for Medical Pain
Management, opened in November 2006 and was located at 1721 East 19th Avenue,
Suite 454, Denver, Colorado.
55.
Defendant Brookoff’s office was a short distance from PSL’s emergency
room located at 1719 East 19th Avenue, Denver, Colorado.
56.
Although it had been projected that Dr. Brookoff would need three
examination rooms, he was only given two.
57.
equivalents.
At the time the practice opened, Dr. Brookoff did not have three full-time
58.
At no time prior to Mrs. Fishbein’s death was Dr. Brookoff staffed as
promised with three full-time equivalents.
59.
Defendants HealthONE and Clinic Services instead hired a medical
assistant for Dr. Brookoff to share with another physician.
60.
The medical assistant was not trained to start an IV for the administration
of epinephrine in an emergency.
61.
The medical assistant had no prior experience working with a physician
who administered Marcaine injections.
62.
Defendants HealthONE and Clinic Services hired an office manager for
Dr. Brookoff to share with four other physicians.
63.
The office manager was not trained to start an IV for the administration of
epinephrine in an emergency.
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64.
The office manager had no prior experience working with a physician who
administered Marcaine injections.
65.
Defendants HealthONE and Clinic Services did not hire a nurse,
physician’s assistant or nurse practitioner to assist Dr. Brookoff at any time prior to Mrs.
Fishbein’s death.
66.
At the time the practice opened, Dr. Brookoff did not have an electronic
medical record keeping system.
67.
At the time the practice opened, Dr. Brookoff did not have a defibrillator,
although he believed he needed one in the office from the outset.
68.
At the time the practice opened, Dr. Brookoff did not have a crash cart for
emergency resuscitations.
69.
At the time the practice opened, Dr. Brookoff did not have oxygen for
administration during emergencies.
70.
In January or February 2007, Clinic Services’ Operations Director –
Specialty Services William Smitham, informed Dr. Brookoff at Management Operations
Review meetings that Clinic Services would not provide him with capital equipment such
as a defibrillator; nor with a nurse practitioner.
71.
On January 26, 2007, two months after Dr. Brookoff’s practice opened, a
46-year old female patient suffered a seizure following bilateral occipital nerve injections
administered by Dr. Brookoff.
72.
Dr. Brookoff’s staff called 911 and the patient was taken to the PSL
emergency department.
73.
By February 13, 2007, Dr. Brookoff’s practice was so busy he was
working from 7 a.m. to 10 or 11 p.m. and was unable to keep up.
74.
On March 1, 2007, a 42-year old female patient suffered a cardiac arrest
during the administration of trigger point injections by Dr. Brookoff.
75.
Dr. Brookoff’s staff called 911 and the patient was taken to the PSL
emergency department.
76.
Defendants HCA, HealthONE and Clinic Services were aware of the
cardiac arrest on March 1, 2007, and that it was the second time this had happened at Dr.
Brookoff’s practice.
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77.
On March 6, 2007, after the second adverse incident, Clinic Services
submitted a capital request for a defibrillator.
78.
The justification for the expenditure was stated as “WE HAD TWO
INCIDENTS WHERE PATIENTS WERE SEIZING AND IN DEFIB AND NEEDED
THIS UNIT AT THAT TIME. WE NEED THIS IN CASE OF ANY FUTURE
INCIDENTS.”
79.
Only after the second incident on March 1, 2007, did HealthONE and
Clinic Services order a defibrillator, crash kit and oxygen for Dr. Brookoff’s practice.
80.
However, neither HealthONE nor Clinic Services investigated Dr.
Brookoff’s medical practice to determine what had caused the patients to suffer the
seizures and cardiac arrests or arrhythmias in the first place, nor did either entity take any
steps to prevent such events from happening again.
81.
In the meantime, Dr. Brookoff was falling further and further behind with
his medical charting due to the lack of an electronic medical record keeping system and a
busy practice.
82.
HCA, HealthONE and Clinic Services were all aware that Dr. Brookoff
was unable to keep up with his medical charting on a timely basis.
83.
Dr. Brookoff began complaining to HealthONE and Clinic Services that
the lack of an electronic medical record keeping system was jeopardizing the safety of his
patients.
84.
In February 2007, Dr. Brookoff’s practice had only 1.3 full time
equivalents, less than half what had been projected and promised to him.
85.
By March 9, 2007, Dr. Brookoff’s office manager was concerned that the
staff was getting burned out from working so hard.
86.
In March 2007, Dr. Brookoff advised HealthONE that he only had one
medical assistant helping him and that it was not enough.
87.
A nurse practitioner would have been qualified to see patients and perform
procedures, whereas as all that a medical assistant was qualified to do was to escort
patients to the exam room and take vital signs.
88.
Clinic Services responded to Dr. Brookoff’s complaint by requesting
information regarding what a nurse practitioner and a physician’s assistant could bill for,
as a nurse practitioner would cost more to hire than a physician’s assistant.
89.
In April 2007, Clinic Services stopped looking for a nurse practitioner to
support Dr. Brookoff’s practice and started looking for a physician’s assistant.
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90.
By July 2007, HealthONE and Clinic Services had still not hired a nurse,
nurse practitioner or physician’s assistant for Dr. Brookoff’s practice, resulting in longer
hours and overwork for Dr. Brookoff and his staff.
91.
Dr. Brookoff advised Clinic Services in July 2007 that his patients were
waiting as long as four hours in the waiting room and that he was routinely seeing
patients in the office until 9 p.m., and rounding on his hospital patients after that.
92.
Dr. Brookoff was also far behind in preparing chart notes concerning
patient visits.
93.
Dr. Brookoff complained frequently that he had been promised a nurse
practitioner and other support and resources but had not received the promised help.
94.
Dr. Brookoff began regularly threatening to quit, which brought morale
down for his entire staff.
95.
Dr. Brookoff also complained that HealthONE and Clinic Services had not
provided him with the promised EMR (electronic medical record) system, which would
have allowed him to chart more quickly.
96.
Thus, Dr. Brookkoff did not create notes of Mrs. Fishbein’s August 15,
2007, visit until March 9, 2008, five days after Mrs. Fishbein suffered a cardiac arrest,
and over seven months after the visit.
97.
Leslie Fishbein’s first visit to Dr. Brookoff was July 17, 2007.
98.
She was not advised of the problems with lack of staffing and overwork.
99.
On Thursday, July 19, 2007, Dr. Brookoff met with Allen Harrison, PSL’s
Chief Operating Officer and HCA employee, to discuss his concerns regarding lack of
staffing and support.
100. Mr. Harrison informed Dr. Brookoff that he would have to work within
the available resources.
101. Dr. Brookoff elected to continue to work under conditions that he believed
jeopardized patient safety.
102. On August 15, 2007, a 42-year old female patient suffered a seizure and/or
cardiac arrhythmia and decreased mental status following occipital nerve injections
administered by Dr. Brookoff.
103. Dr. Brookoff’s staff called 911 and the patient was taken to the PSL
emergency department.
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104. Neither HCA, HealthONE nor Clinic Services investigated Dr. Brookoff’s
medical practice which had by now caused three of his patients to suffer seizures and
cardiac arrests, nor did they take any steps to prevent such events from happening again.
105. On August 22, 2007, Clinic Services offered a position to a nurse
practitioner for Dr. Brookoff’s practice.
106. However, the salary offered by Clinic Services was not competitive and
the candidate declined the offer.
107. On August 23, 2007, a 29-year old female patient suffered a seizure
following trigger point injections into her shoulder and neck administered by Dr.
Brookoff.
108. Dr. Brookoff’s staff called 911 and the patient was taken to the PSL
emergency department.
109. Neither HCA, HealthONE nor Clinic Services investigated Dr. Brookoff’s
medical practice which had by now caused four of his patients to suffer seizures and/or
cardiac arrests or arrhythmias, nor did they take any steps to prevent such events from
happening again.
110. On September 14, 2007, the Clinic Services Area Practice Manager
reported to PSL’s COO that he had met with Dr. Brookoff the evening before and he was
very tired, “way too emotional, and frustrated to the point of bitterness and seemingly
exhausted mentally and physically.”
111. The Clinic Services Area Practice Manager characterized Dr. Brookoff’s
practice as a “paperwork nightmare,” a description with which Dr. Brookoff’s office
manager agreed.
112. Dr. Brookoff’s office manager repeatedly made attempts to help Dr.
Brookoff get caught up on his charting by scheduling time without patients and
organizing the piles of patient charts on his desk.
113. Dr. Brookoff’s staff also made attempts to come up with rules and
guidelines for his patients.
114. Dr. Brookoff’s staff informed Dr. Brookoff that he should stop throwing
away patient records (patient check-in sheets) and that he needed to obtain signed
informed consents from his patients prior to performing Marcaine injection procedures.
115. Dr. Brookoff’s staff repeatedly asked him to tell them what drugs to order
for the crash kit, as the original supplies had expired.
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116. Dr. Brookoff’s staff asked him to allow them to schedule fewer patients
each day as he took longer with patients than the time scheduled.
117. Dr. Brookoff rebuffed all such suggestions from his staff and refused to
make any changes in the way he was practicing.
118. Upon information and belief, Dr. Brookoff pushed himself to see as many
patients as possible in order to try and become profitable.
119. However, throughout his three years as an employee of HealthONE and
Clinic Services his practice never made a profit, in part due to the lease charges by
HealthONE and the management fees charged by Clinic Services.
120. By September 2007, Dr. Brookoff’s emotional outbursts and name-calling
were a cause of concern to his staff and to those who interacted with him at Clinic
Services and HealthONE.
121. On October 2, 2007, Dr. Brookoff advised Clinic Services that if he had
not met Clinic Services’ “productivity goals” it was due to the lack of resources and
support which had been promised to him but withdrawn within weeks of the opening of
his practice.
122. In October and November 2007, Dr. Brookoff and HealthONE through
Clinic Services were engaged in at times acrimonious negotiations concerning renewal
and modification of Dr. Brookoff’s employment contract.
123. On November 2, 2007, Dr. Brookoff told his officer manager that he was
feeling overwhelmed, needed a nurse to help him and was again ready to quit.
124. On November 15, 2007, a 32-year old female patient suffered a grand mal
seizure after occipital injections administered by Dr. Brookoff.
125. Dr. Brookoff’s staff called 911 and the patient was taken to the PSL
emergency department.
126. Significantly, neither HCA, HealthONE nor Clinic Services investigated
Dr. Brookoff’s medical practice which had by now caused five of his patients to suffer
seizures and cardiac arrests, nor did they take any steps to prevent such events from
happening again.
127. Each of the adverse events involving Dr. Brookoff’s patients had been
duly reported in writing to Clinic Services, but the practice received no feedback from
anyone and no efforts were made to mitigate the risks to Dr. Brookoff’s patients.
128. In addition, upwards of thirty of Dr. Brookoff’s patients had experienced
some type of reaction to Dr. Brookoff’s injections such as dizziness.
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129. On November 21, 2007, Dr. Brookoff’s office manager met with PSL’s
Physician Relations Manager and informed her that Dr. Brookoff lacked help and needed
a nurse practitioner or a physician’s assistant.
130. She further informed PSL’s Physician Relations Manager that Dr.
Brookoff was overworked and getting burned out, working from 6 a.m. to well past
midnight.
131. Despite the numerous and repeated warnings about the dangers posed to
Dr. Brookoff’s patients by his exhaustion and lack of help, none of the Defendants appear
to have recognized the possibility that the high number of adverse events following
Marcaine injections could be due to the conditions under which Dr. Brookoff was
working.
132. In December 2007, Dr. Brookoff again complained in writing to Clinic
Services about the need for additional staff help and an electronic record-keeping system.
133. On January 24, 2008, Dr. Brookoff escalated his complaints and concerns
directly to PSL CEO Mimi Roberson, stating that Clinic Services had sent him so many
patients that he was facing “frightening compliance and patient-care issues that will need
to be addressed pretty quickly.”
134. On January 30, 2008, Dr. Brookoff again contacted PSL CEO Mimi
Roberson and complained anew regarding the decisions to delay providing him with a
defibrillator and the failure to provide him with a nurse practitioner.
135. On February 4, 2008, Dr. Brookoff wrote to the Clinic Services Area
Practice Manager regarding his need for a nurse practitioner, without which his practice
was rapidly heading to “life support.”
136. On February 8, 2008, Mrs. Fishbein returned to Dr. Brookoff; for the first
time she reported having pain in her spine and advised Dr. Brookoff of previous back
surgery.
137. Dr. Brookoff recommended trigger point injections with Marcaine and
proceeded to administer twenty injections with Marcaine.
138. Following the administration of Marcaine injections, Mrs. Fishbein
became dizzy.
139. Unable to drive herself home, Mrs. Fishbein called her husband to come
and pick her up.
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140. Dr. Brookoff was responsible for monitoring Mrs. Fishbein for adverse
reactions to Marcaine and should have known of her adverse reaction of dizziness and
inability to drive following the twenty Marcaine injections.
141.
Dr. Brookoff should have documented her adverse reaction in the medical
record.
142. However, Dr. Brookoff was months behind in his charting, and did not
create the only existing record of Mrs. Fishbein’s February 8, 2008, visit until March 10,
2008, after Mrs. Fishbein’s cardiac arrest.
143. The record created on March 10, 2008 contains no mention of Mrs.
Fishbein’s adverse reaction to the twenty trigger point injections with Marcaine on
February 8, 2008.
144. On February 13, 2008, a registered nurse candidate was offered a position
by Clinic Services at a salary that insulted the candidate, who called Dr. Brookoff.
145. Dr. Brookoff was furious at what he perceived to be yet another instance
of the co-Defendants low-balling his candidates.
146. In his anger, Dr. Brookoff yelled at his practice manager and accused her
of working behind his back and sabotaging him.
147. This outburst marked a turning point in Dr. Brookoff’s relationship with
his practice manager.
148.
By February 2008, Dr. Brookoff’s behavioral swings were worsening.
149. On February 26, 2008, Dr. Brookoff learned that HealthONE and Clinic
Services had decided not to extend the contract of a physician with whom Dr. Brookoff
hoped to build a pelvic pain practice.
150. This decision further worsened Dr. Brookoff’s emotional upset and left
him feeling increasingly isolated and betrayed.
151. On Thursday, February 28, 2008, Dr. Brookoff met with PSL Chief
Operating Officer and HCA employee Allen Harrison.
152. On Saturday, March 1, 2008, Dr. Brookoff informed Mr. Harrison that he
was upset with their discussion the previous Thursday, and expressed frustration at the
long hours he was working with a half of a medical assistant and no nursing help. Dr.
Brookoff informed Mr. Harrison that his practice “because of lack of staff and
infrastructure threatens to fall into disarray.”
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153. Days later, on Tuesday March 4, 2008, Leslie Fishbein consulted Dr.
Brookoff for back pain.
G.
Mrs. Fishbein suffers a cardiac arrest due to Dr. Brookoff’s injections
154. The medical assistant recorded Mrs. Fishbein’s vital signs, medications
and reason for the visit on a “check-in” form.
155.
Office policy required that the check-in form be retained in the patient’s
chart.
156. During the March 4, 2008, visit, Dr. Brookoff decided to inject Mrs.
Fishbein’s back with Marcaine (also known as bupivacaine).
157. Given Mrs. Fishbein’s previous adverse reaction to the Marcaine trigger
point injections, Dr. Brookoff should not have performed another round of Marcaine
injections.
158. The clinic’s policy required that the amount of medication administered to
a patient be written on the check-in form.
159. All other physicians in the office recorded the amounts of medication
administered in the office, other than Dr. Brookoff.
160. Dr. Brookoff knew that he was required to document the medication
injected, the amount injected, the response to the injection, any adverse effects from the
injection, the number of injections, and the location of injections and that failure to do so
is substandard care.
161.
Marcaine.
Dr. Brookoff drew up one or more syringes with a 0.5% concentration of
162. When injecting Marcaine, a physician must use care to ensure that the
anesthetic is not injected intravascularly (into the blood stream) or into the spinal canal.
163.
Intravascular injection can lead to cardiac arrest and can be fatal.
164. To avoid intravascular administration of bupivacaine, aspiration should be
performed before the anesthetic is injected and after repositioning of the needle to ensure
that the anesthetic is being injected into the muscle.
165. When injecting Marcaine, a physician should record the amount of
Marcaine administered and the location of each injection.
166. The policies and procedures of HealthONE and Clinic Services required
that the amount of Marcaine administered be recorded.
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167. When injecting Marcaine, a physician must use care not to inject too much
Marcaine in order to avoid dose-related toxicity.
168. A physician should not employ Marcaine unless he is well versed in
diagnosis and management of dose-related toxicity and other acute emergencies which
can arise from the use of Marcaine.
169. A physician planning to employ Marcaine in such a manner that it might
be inadvertently injected into the spinal canal or a large vein must first ensure the
immediate availability of oxygen, resuscitative drugs, cardiopulmonary resuscitative
equipment, and the personnel resources needed for proper management of toxic reactions
and related emergencies.
170. Delay in proper management of dose-related toxicity or underventilation
may lead to cardiac arrest and death.
171. The safety and effectiveness of Marcaine depends on the clinician’s use of
the proper dosage, correct technique, adequate precautions, and readiness for
emergencies.
172. Among the resuscitative drugs which should be immediately available
prior to the administration of Marcaine are atropine and narcan.
173. Careful and constant monitoring of cardiovascular and respiratory
(adequacy of ventilation) vital signs and the patient’s state of consciousness should be
performed after each local anesthetic injection with Marcaine.
174. Injections of Marcaine should be made slowly, with frequent aspirations
before and during the injection to avoid intravascular injection.
175.
Marcaine should not be injected into the spinal canal.
176.
Inadvertent injection into the spinal canal can lead to cardiopulmonary
arrest.
177. At the time Defendant Brookoff injected Marcaine into Mrs. Fishbein, the
Defendants did not have the required resuscitative drugs immediately available.
178. At the time Defendant Brookoff injected Marcaine into Mrs. Fishbein, the
Defendants did not have the personnel resources needed for proper management of toxic
reactions and related emergencies immediately available.
179. Despite the location of Defendant Brookoff’s office in the Presbyterian/St.
Luke’s Medical Center complex, Defendant Brookoff did not utilize readily available
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medical resources, including personnel, oxygen, and resuscitative drugs needed for
proper management of toxic reactions and related emergencies.
180. In a period of only five minutes, Dr. Brookoff injected Mrs. Fishbein at
least thirty times with Marcaine.
181. Given Mrs. Fishbein’s previous adverse reaction to twenty Marcaine
injections, for Dr. Brookoff to inject Mrs. Fishbein with fifty percent more Marcaine
constituted wilfull and wanton conduct.
182. Moreover, ten seconds per injection was too fast a pace of injection to
ensure that the injections were properly placed and to assess the patient for adverse
reactions to the medication before it was too late.
183. At no time prior to injecting Mrs. Fishbein with Marcaine on March 4,
2008, did Dr. Brookoff inform Mrs. Fishbein that he would be injecting the drug in such
a way that inadvertent injection into the spinal canal or a large vein was not only
possible, but probable.
184. At no time prior to injecting Mrs. Fishbein with Marcaine on March 4,
2008, did Dr. Brookoff advise Mrs. Fishbein that the amount and manner of the injection
of Marcaine was likely to cause dose-related toxicity.
185. At no time prior to injecting Mrs. Fishbein with Marcaine on March 4,
2008, did Dr. Brookoff advise Mrs. Fishbein that five of his patients in the previous
fourteen months had suffered such adverse reactions to Marcaine injections that they
required resuscitation and emergency room evaluation and treatment.
186. At no time prior to injecting Mrs. Fishbein with Marcaine on March 4,
2008, did Dr. Brookoff advise Mrs. Fishbein that he would be injecting her with an
excessive amount of Marcaine.
187. At no time prior to injecting Mrs. Fishbein with Marcaine on March 4,
2008, did Defendants inform Mrs. Fishbein that resuscitative drugs and the personnel
resources needed for proper management of toxic reactions and related emergencies were
not immediately available.
188. On March 4, 2008, Defendant Brookoff used a higher concentration of
Marcaine, 0.5%, than should be used for trigger point injections in the manner in which
Dr. Brookoff performed them.
189. On March 4, 2008, Defendant Brookoff failed to conduct careful and
constant monitoring of Mrs. Fishbein’s cardiovascular and respiratory vital signs and
level of consciousness during the injection process.
16
190. At Defendant Brookoff was performing the injections of Marcaine, Mrs.
Fishbein became unresponsive.
191.
Shortly thereafter, Mrs. Fishbein suffered a cardiac arrest.
192.
At that time Mrs. Fishbein had no pulse and was not breathing.
H.
Ineffective Resuscitative Efforts
193. The first step in management of systemic toxic reaction to Marcaine
consists of immediate attention to the establishment and maintenance of a patent airway
and effective assisted or controlled ventilation with 100% oxygen with a delivery system
capable of permitting immediate positive airway pressure by mask.
194. Defendants failed to immediately establish and maintain a patent airway
for Mrs. Fishbein.
195. Defendants failed to provide effective assisted or controlled ventilation
with 100% oxygen.
196. Instead the Defendants placed a nasal cannula which is capable of
delivering only two liters of oxygen per minute and not positive pressure via mask.
197. Placement of the nasal cannula by Defendants Brookoff and Clinic
Services employee Dana Smith was insufficient to properly ventilate Mrs. Fishbein.
198. Defendant Brookoff performed mouth-to-mouth resuscitation and a Clinic
Services employee performed chest compressions.
199. The mouth-to-mouth resuscitation purportedly performed by Dr. Brookoff
was insufficient to properly ventilate Mrs. Fishbein.
200.
Defendant Brookoff was medically qualified to intubate Mrs. Fishbein.
201. However, Defendant Brookoff did not have available the equipment
needed to establish an airway, such as a laryngoscope, Miller or Macintosh blades,
endotracheal tubes, airways and ambu bags.
202.
Airways were not purchased until after Mrs. Fishbein’s arrest.
203. Had Defendant Brookoff had available the equipment necessary to
intubate Mrs. Fishbein, he would have done so.
204. Although a crash kit with resuscitative drugs had been purchased for the
practice, it was never brought to the room.
17
205. The crash kit would have been of little help in any event because Dr.
Brookoff failed to tell his staff which drugs to order to replenish expired drugs.
206. An ECG was attached to Mrs. Fishbein and the ECG strip was printed;
however, the strip was discarded and not placed in the chart as required by prevailing
standards of care and the Clinic’s policies.
207. A defibrillator was attached to Mrs. Fishbein but did not indicate a
shockable heart rhythm.
208. Mrs. Fishbein could have benefited from intravenous delivery of
epinephrine to restore her cardiac rhythm.
209. However, Clinic Services had not staffed Dr. Brookoff with any
employees qualified to start an IV.
210. Consequently Dr. Brookoff instead gave an ineffective injection of
intramuscular epinephrine which did not assist in resuscitating Mrs. Fishbein.
211. Neither Dr. Brookoff nor the Clinic Services employees who responded to
assist him recorded any of Mrs. Fishbein’s vital signs or the resuscitative efforts in her
medical chart.
212. Defendant Brookoff exercised poor judgment in his call for assistance
with Mrs. Fishbein’s emergency.
213. Although the office was located less than a minute from PSL’s emergency
room, rather than take Mrs. Fishbein directly to the emergency room, Dr. Brookoff’s staff
called Denver Health Medical Center paramedics to respond.
214. Prior to calling 911, Dr. Brookoff and his staff first placed the nasal
cannula and oxygen, then they checked Mrs. Fishbein’s vital signs, then they retrieved
the ECG machine, placed the leads, turned it on and printed an ECG strip.
215.
216.
4:00 p.m.
The first 911 call was received at 3:49 p.m.
The paramedics did not arrive and make contact with Mrs. Fishbein until
217. From the time of Mrs. Fishbein’s cardiac arrest, through the time the 911
call was placed, and until the paramedics arrived, the only cardiopulmonary resuscitative
measures performed by the Defendants consisted of mouth-to-mouth resuscitation, nasal
cannula oxygen, chest compressions and an ineffective intramuscular injection of
epinephrine.
18
218. During that time, Defendants did not adequately ventilate Mrs. Fishbein,
which caused irreversible brain damage due to lack of oxygen.
219. During that time, Defendants failed to appropriately administer
resuscitative drugs in order to re-start Mrs. Fishbein’s heart.
220. During that time, Dr. Brookoff failed to start an IV for the administration
of resuscitative drugs.
221. Defendants HealthONE and Clinic Services had not provided Dr.
Brookoff with staff qualified to start an IV for the administration of resuscitative drugs.
222. Upon arrival, the paramedics took over cardiopulmonary resuscitation,
attached an ECG, intubated Mrs. Fishbein, started two IVs and administered resuscitative
drugs.
223. The paramedics then transported Mrs. Fishbein to PSL’s emergency
department through the tunnel, arriving in less than one minute.
224.
By the time of arrival at the emergency department Mrs. Fishbein had a
pulse.
225. However, although Mrs. Fishbein was treated by various providers at PSL
over the next two weeks, she could not survive the severe anoxic brain injury suffered
following the cardiac arrest and the Defendants’ excessive delay in providing appropriate
and timely care thereafter.
226. A cause of Mrs. Fishbein’s cardiac arrest was the injection of excessive
amounts of Marcaine.
227. A cause of Mrs. Fishbein’s cardiac arrest was intrathecal (spinal) injection
of Marcaine.
228.
Marcaine.
A cause of Mrs. Fishbein’s cardiac arrest was intravascular injection of
229. On March 19, 2008, Mrs. Fishbein died due to the negligent acts and
omissions of the Defendants.
230. Following Mrs. Fishbein’s cardiopulmonary arrest, Dr. Brookoff
destroyed the contemporaneous record (check-in form) reflecting Mrs. Fishbein’s vital
signs and other information recorded by the Clinic Services medical assistant.
231. Dr. Brookoff’s failure to document the location and number of the trigger
point injections and the amount of Marcaine he administered to Mrs. Fishbein constituted
substandard care.
19
232. None of the Defendants made any effort to retrieve and preserve the
check-in sheet, ECG strip or any other contemporaneous documentation of Mrs.
Fishbein’s cardiac arrest.
233. Following Mrs. Fishbein’s cardiopulmonary arrest, Dr. Brookoff and/or
Clinic Services employees destroyed the ECG strip recorded during the arrest.
234. Dr. Brookoff did not create his medical chart record for the March 4,
2008, visit until March 10, 2008, after he had retained counsel.
235. All contemporaneous records have been destroyed, thus preventing
Plaintiff Sam Fishbein from learning the truth about what happened to his wife.
236. Defendants HCA, HealthONE and Clinic Services did not finally hire a
physician’s assistant for Dr. Brookoff until after Mrs. Fishbein’s death.
237. As a direct and proximate result of the Defendants’ negligence, Mr.
Fishbein has suffered non-economic damages, including, without limitation, profound
grief, loss of companionship, emotional pain and suffering, and anguish; and economic
damages, including, without limitation, loss of income due to his wife’s status as a
principal, shareholder, employee and the public face of their business, Kacey Fine
Furniture, in an amount to be determined by the jury, together with burial and funeral
expenses, and loss of services.
238. Dr. Brookoff’s conduct in continuing to practice medical pain
management under conditions that he knew detracted from patient safety, in failing to
heed his staff and employers concerning scheduling fewer patients, timely completing
medical charts, documenting medications administered and samples distributed, obtaining
patient informed consent prior to administration of Marcaine injections, failing to stop
administering Marcaine injections until he had determined the reason for the high number
of adverse reactions, administering Marcaine injections to Mrs. Fishbein despite her
adverse reaction less than a month earlier, among other facts outlined above, constituted
willful and wanton conduct which Dr. Brookoff must have realized was dangerous, done
heedlessly and recklessly, without regard to consequences, or of the rights and safety of
others, particularly Mrs. Fishbein.
239. Defendants HCA, HealthONE and Clinic Services engaged in willful and
wanton conduct by, among other things, continuing to withhold staffing and equipment
resources month after month despite Dr. Brookoff’s repeated warnings that he needed the
additional staff and equipment resources in order not to jeopardize patient safety;
allowing Dr. Brookoff to continue to treat their patients despite the high number of
serious and unexplained adverse events following Marcaine injections, as well as clear
evidence that Dr. Brookoff was approaching a physical and emotional breakdown due to
stress and exhaustion, and knowledge that he was months behind in his patient charting
and given to outbursts of profanity and name-calling.
20
240. Under the circumstances outlined above, the conduct of Defendants HCA,
HealthONE and Clinic Services in failing to protect their patients from the clear and
present danger attendant to Dr. Brookoff’s increasingly erratic practice constituted willful
and wanton conduct which they must have realized was dangerous, done heedlessly and
recklessly, without regard to consequences, or of the rights and safety of others,
particularly Mrs. Fishbein.
IV. FIRST CLAIM FOR RELIEF
(Medical Negligence – Defendant Daniel Brookoff, M.D.
241.
Plaintiff incorporates by reference paragraphs 1-240 as if fully set forth
herein.
242. At all times relevant, Leslie Fishbein was under the care and treatment of
Defendant Brookoff.
243. With respect to his care and treatment of Mrs. Fishbein, Defendant
Brookoff owed Mrs. Fishbein a duty to exercise that degree of care, skill, caution,
diligence, and foresight exercised and expected of physicians trained and specializing in
medical pain management and/or the administration of Marcaine injections in similar
situations.
244. With respect to his care and treatment of Mrs. Fishbein, Defendant
Brookoff was held to the same standard of care as any other physician specializing in
medical pain management and the administration of Marcaine injections regardless of the
specialty of the doctor who holds himself out as a specialist in medical pain management
and/or the administration of Marcaine injections.
245. Defendant Brookoff specialized in oncology during his training and has no
formal accreditation in pain management. Nevertheless, he is held to the same standard
as any other physician who specializes in pain management and the administration of
Marcaine injections.
246. Defendants Brookoff deviated from applicable standards of care and was
negligent in the treatment of Mrs. Fishbein, by, among other things:
a.
Continuing to practice at the Defendants’ Center for Medical Pain
Management when he knew that the lack of resources, qualified staff and other
support was jeopardizing the safety of his patients;
b.
Continuing to administer Marcaine injections without determining the
cause of repeated adverse events in his patients, including seizures, arrhythmias
and cardiac arrests;
21
c.
Continuing to administer potentially dangerous injections of Marcaine
when he knew that his mental frame of mind, exhaustion, frustration and general
discontent with his employer impaired his medical judgment;
d.
Failing to monitor Mrs. Fishbein and document adverse reactions at the
February 8, 2008, visit;
e.
Failing to timely update his medical chart to reflect Mrs. Fishbein’s
adverse reaction on February 8, 2008,
f.
Electing to administer Marcaine injections on March 4, 2008, in even
greater quantities than previously, despite the previous adverse reactions;
g.
Failing to document;
h.
Failing to consider the impact of Marcaine patches given;
i.
Failing to properly assess and monitor Mrs. Fishbein during the
administration of Marcaine injections;
j.
Improperly administering Marcaine such that there was a high risk
that a spinal or intravascular injection would occur;
k.
Using an improper concentration of Marcaine given the number of
injections and their timing and placement;
l.
Using Marcaine for the injections when he was not competent in
diagnosis and management of dose-related toxicity and other acute
emergencies which can arise from such injections;
m.
Using Marcaine for the injections when he was not properly for
emergency management of dose-related toxicity and other acute
emergencies which can arise from such injections;
n.
Administering the Marcaine improperly, including, without
limitation, using an excessive amount, too quickly and in the wrong
places;
o.
Failing to ensure, prior to commencing the Marcaine injections, the
immediate availability of appropriate resuscitative drugs;
p.
Failing to ensure, prior to commencing the Marcaine injections, the
immediate availability of appropriate personnel resources needed for
proper management of toxic reactions and related emergencies;
q.
Negligently injecting Marcaine intravascularly or intrathecally;
22
r.
Failing to employ, direct or request appropriate, effective and
timely resuscitation efforts;
s.
Failing to contact the most immediately available emergency
resuscitation resources at the adjacent hospital;
t.
Failing to ensure that Mrs. Fishbein’s vital signs and other
pertinent information were obtained, recorded and preserved throughout
the procedure and the ensuing emergency;
u.
Failing to document the timing of all events, the number of
Marcaine injections, the quantity injected and other pertinent facts;
v.
Failing to request the necessary resuscitative equipment, properly
trained personnel and supplies from the co-defendants prior to
commencing treatment of pain patients with Marcaine;
w.
Failed to inform Mrs. Fishbein that Defendants were not prepared
to properly manage dose-related toxicity and other emergencies which
may arise in connection with injections of Marcaine;
x.
Performing the Marcaine injections in his office rather than an
appropriately equipped pain center with the proper resuscitative
equipment, oxygen, personnel and drugs should cardiopulmonary arrest
occur as a result of the injections,
y.
Failing to properly monitor Mrs.
administration of the Marcaine injections;
z.
Destroying contemporaneous medical
information concerning Mrs. Fishbein; and
Fishbein
records
during
the
reflecting
aa.
Continuing to practice as an employee of Defendants HealthONE
and Clinic Services despite the failure of the co-Defendants to provide
adequate and promised levels of support, staff and equipment and despite
productivity requirements which jeopardized patient safety.
247. As a direct and proximate result of the acts and omissions of Defendant
Brookoff, Mrs. Fishbein suffered grievous injury and death, and her husband, Mr.
Fishbein, has suffered damages, injuries, and losses as more fully set forth above.
23
V. SECOND CLAIM FOR RELIEF
(Negligence, Negligent Retention and Premises Liability –
Defendants HCA, HealthONE and Clinic Services)
248.
Plaintiff incorporates by reference paragraphs 1-247 as if fully set forth
herein.
249. Employees of Defendants HCA, HealthONE and Clinic Services approved
the hiring of Defendant Brookoff.
250. The approval of Defendants HCA and HealthONE was required before Dr.
Brookoff could be hired.
251. Defendant HCA’s employees managed HealthONE’s PSL hospital,
including CEO Mimi Roberson, CFO Douglas Zehner, and COOs Hugh Tappan and
Allen Harrison.
252. The impetus to hire Dr. Brookoff originated with employees of
HealthONE’s PSL, not Clinic Services.
253. HCA and HealthONE hired Dr. Brookoff through HealthONE’s wholly
owned subsidiary and alter ego, Clinic Services.
254. At all relevant times, Clinic Services was engaged in the business of
operating and managing medical practices and other health care services in Denver
County.
255. Clinic Services hired Dr. Brookoff to perform medical services not only at
the medical practice office leased for him at 1721 E. 19th Avenue, Suite 3550, but also at
PSL.
256. The employment contract between Dr. Brookoff and Clinic Services (“the
contract”) commenced November 1, 2006, and continued through October 31, 2009.
257. Under the terms of the contract, Clinic Services established Dr. Brookoff’s
work and on-call schedules, as well as all administrative duties.
258. Under the terms of the contract, Clinic Services was to provide Dr.
Brookoff with a reasonable level of non-physician personnel support, including nurses,
technicians, secretarial staff, and other medical and non-medical personnel, to assist Dr.
Brookoff in the performance of his duties.
259. However, the level of the promised non-physician personnel support was
within Clinic Services’ “discretion.”
24
260. The contract required Dr. Brookoff to provide his best endeavors and skill
“for the interest, benefit and best advantage of” Clinic Services and in a manner which
would maintain the “productivity” of the practice.
261.
In this context, “productivity” meant “profitability.”
262. Under the terms of the contract, patients treating with Dr. Brookoff were
patients of Clinic Services; Clinic Services retained final authority over the acceptance or
refusal of any patient for treatment, and, upon termination, all patients were to be
transferred to other professional employees of Clinic Services.
263. Under the terms of the contract, Dr. Brookoff was prohibited from taking
any of Clinic Services’ patients with him should he terminate his employment contract.
264. The contract required Dr. Brookoff to provide all professional medical
services in accordance with the policies and procedures established by Clinic Services
and PSL.
265. The contract required Dr. Brookoff to accept and receive consultations and
requests for professional services from physicians employed by Clinic Services, as well
as other physicians with whom Clinic Services had contractual relationships for the
provision of medical services.
266. Employees of Defendants HCA, HealthONE and Clinic Services made
certain assurances to Defendant Brookoff concerning the resources and support
Defendant Brookoff was to receive in order to provide appropriate pain management
services at the Center for Medical Pain Management located on PSL’s campus.
267. Defendants HCA, HealthONE and Clinic Services failed to provide Dr.
Brookoff with the non-physician staff, resources and support Defendant Brookoff needed
to properly and safely care for his patients at the Center for Medical Pain Management
located on PSL’s campus.
268. Defendants HCA, HealthONE and Clinic Services were aware that Dr.
Brookoff was working as many as 18 or more hours a day, without call coverage, and
without a nurse practitioner or physician assistant.
269. Defendant Brookoff repeatedly warned Defendants HCA, HealthONE and
Clinic Services that the lack of promised staff, equipment, and other support jeopardized
the safety of Clinic Services’ patients.
270. Defendants HCA, HealthONE and Clinic Services were aware that the
working conditions were contributing to Dr. Brookoff’s emotional and behavioral swings
and that Dr. Brookoff was yelling at his patients, using profanity, engaging in namecalling, berating his staff and otherwise acting in such a way as to call into question his
ability to deliver appropriate, competent and safe medical care.
25
271. Defendants HCA, HealthONE and Clinic Services were aware, prior to
March 4, 2008, that Defendant Dr. Brookoff was treating patients with Marcaine
injections, and that five of his patients had suffered seizures and/or cardiac arrests during
Dr. Brookoff’s administration of Marcaine injections.
272. However, despite the severity of the complications and the large number
of patients suffering adverse events as a result of the Marcaine injections, Defendants
HCA, HealthONE and Clinic Services failed to investigate the cause of the complications
prior to March 4, 2008.
273. Defendants HCA, HealthONE and Clinic Services failed to warn patients
of the Center for Medical Pain Management of the high rate of complications due to the
administration of Marcaine by Dr. Brookoff.
274. Defendants HCA, HealthONE and Clinic Services failed to restrict Dr.
Brookoff’s use of Marcaine until May 1, 2008, after Mrs. Fishbein’s death on March 19,
2008.
275. The contract of employment between Dr. Brookkoff and HealthONE
through Clinic Services allowed Clinic Services to immediately terminate Dr. Brookoff
with cause for a number of reasons, including:
a.
The failure to provide adequate patient care or a determination that the
health, safety, or welfare of patients was jeopardized by the continued
employment of Dr. Brookoff;
b.
Repeated failures to conform and comply with Clinic Services’
professional requirements concerning the maintenance of medical records;
c.
Repeated failure of Dr. Brookoff to meet performance, efficiency or
quality standards established by Clinic Services;
d.
Conduct which Clinic Services determined to be unprofessional and
detrimental to patient care; and
e.
The breach of any material rules, policies and/or procedures.
276. Either Dr. Brookoff or Clinic Services could terminate the employment
contract without cause at any time upon 90 days written notice.
277. Defendants HCA, HealthONE, and Clinic Services negligently retained
and failed to terminate Dr. Brookoff prior to Mrs. Fishbein’s cardiac arrest on March 4,
2008.
26
278. At all relevant times, Defendant Brookoff relied on Defendants HCA,
HealthONE and Clinic Services to provide him with the personnel, equipment, supplies
and support that he needed in order to safely treat Clinic Services’ patients.
279. At all relevant times, Defendants HCA, HealthONE and Clinic Services
owed Plaintiff and other patients of Clinic Services a duty to provide reasonable
personnel, equipment, supplies and support to the physicians hired to treat their patients;
to investigate adverse events occurring at the physician practices in order to determine
whether the safety of their patients were at risk; to take steps to protect their patients from
risk of harm due to negligent care by their employees; and not to retain employees who
engaged in practices that jeopardized the health and safety of their patients and who
continually violated terms and conditions of employment as well as the Defendants’
policies and procedures.
280. Defendants HCA, HealthONE and Clinic Services were responsible for
the activities conducted at 1721 E. 19th Avenue, Suite 3550, Denver, by selecting Dr.
Brookoff to provide medical services and by monitoring Dr. Brookoff’s practice with
regular monthly meetings, reports and other meetings.
281.
Services.
Leslie Fishbein was an invitee of Defendants HCA, HealthONE and Clinic
282. Defendants HCA, HealthONE and Clinic Services knew or should have
known, prior to March 4, 2008, of the danger attendant to Dr. Brookoff’s Marcaine
injection activity given his repeated warnings and the five previous instances of seizure
and/or cardiac arrest or arrhythmia during the administration of Marcaine injections.
283. Defendants HCA, HealthONE and Clinic Services failed to use reasonable
care to protect against the danger to their patients, including Mrs. Fishbein, and failed to
warn their patients, including Mrs. Fishbein, of the dangers attendant to Dr. Brookoff’s
practice.
284. Defendants HCA, HealthONE and Clinic Services breached their duties
and were negligent by failing to provide Dr. Brookoff with a reasonable level of nonphysician personnel support, by failing to take reasonable steps to protect its patients,
including Mrs. Fishbein, once it became apparent that Dr. Brookoff’s practice was not
being operated safely, by failing to investigate the cause of previous incidents at Dr.
Brookoff’s practice, by failing to terminate the contract for numerous infractions
committed by Dr. Brookoff, for negligent retention of Dr. Brookoff to care for Clinic
Services’ patients, and by failing to warn of a dangerous condition on its premises.
285. As a direct and proximate result of the breach of the duties owed by
Defendants HCA, HealthONE and Clinic Services to Mrs. Fishbein, Plaintiff suffered the
injuries, damages and losses more fully described above.
27
VI. THIRD CLAIM FOR RELIEF
(Ostensible Agency – Defendant HealthONE)
286.
Plaintiff incorporates by reference paragraphs 1-285 as if fully set forth
herein.
287. At all relevant times, HealthONE through Clinic Services employed
Defendant Brookoff.
288. As a physician employee, Dr. Brookoff was responsible for providing pain
management services for HealthONE’s and Clinic Services’ patients.
289. HealthONE’s PSL hospital advertised that Dr. Brookoff operated a pain
management center for the benefit of its patients.
290. HealthONE and Clinic Services leased an office for Dr. Brookoff in the
PSL medical campus adjacent to PSL’s hospital.
291. The lease required that Dr. Brookoff not be in breach of his agreements
with either HealthONE or Clinic Services.
292. HealthONE’s PSL hospital represented to the public that Defendant
Brookoff was part of “our team.”
293. The prescription pads HealthONE and Clinic Services provided to Dr.
Brookoff, on which he wrote prescriptions for Leslie Fishbein, contained HealthONE’s
name and logo.
294. Based on HealthONE’s actions, Leslie Fishbein and other patients of the
Center for Medical Pain Management would reasonably believe that Dr. Brookoff was
providing pain management services on behalf of HealthONE’s PSL hospital.
295. HealthONE’s representations caused Mrs. Fishbein and other patients of
the Center for Medical pain Management to rely on the skill and care of Dr. Brookoff as
an employee and agent of HealthONE’s PSL hospital.
296. As described more fully above, Dr. Brookoff was negligent in his care and
treatment of Leslie Fishbein.
297. As described more fully above, Defendant Brookoff’s negligence was a
cause of Leslie Fishbein’s cardiac arrest and death.
298. HealthONE is therefore liable for the negligent acts and omissions of Dr.
Brookoff and the injuries, damages and losses suffered by Plaintiff.
28
VII. FOURTH CLAIM FOR RELIEF
(Negligent Hiring and Retention – HealthONE and Clinic Services)
299.
Plaintiff incorporates by reference paragraphs 1-298 as if fully set forth
herein.
300. HealthONE and Clinic Services knew or should have known that Pain
Management requires years of specialized training.
301. HealthONE and Clinic Services knew that Defendant Brookoff had
received specialized training only in internal medicine with a subspecialty in oncology.
302. HealthONE and Clinic Services knew or should have known that there
existed Board subspecialty certifications for pain management in anesthesia, neurology
and physical medicine and rehabilitation, but not internal medicine.
303. At all relevant times, HealthONE and Clinic Services, through their
employee Dr. Brookoff, were in the business of providing medical pain management
services to the public.
304. At all relevant times, HealthONE and Clinic Services, through their
employees, received a benefit from having the public visit its offices for medical pain
management, and from referrals generated, or expected to be generated, by Dr. Brookoff
to other physicians within the HealthONE network or to PSL.
305. HealthONE and Clinic Services knew or should have known that the
public seeking medical pain management services would receive such services from its
employees, including Defendant Brookoff.
306. HealthONE and Clinic Services knew or should have known that the
public seeking pain management services could suffer harm if its employees, including
Defendant Brookoff, had not had the requisite years of specialized training and were not
prepared to handle emergencies which may arise during treatment with drugs such as
Marcaine.
307. HealthONE and Clinic Services therefore owed a duty of care to the public
seeking pain management services in making hiring and retention decisions.
308. At all relevant times, HealthONE and Clinic Services were aware that
Defendant Brookoff was not adequately trained to administer trigger point injections or to
handle emergencies arising from the use of Marcaine.
309. As set forth in more detail above, Dr. Brookoff’s patients had a high rate
of adverse events following injections with Marcaine, with five patients before Mrs.
Fishbein requiring emergency treatment at HealthONE’s PSL.
29
310. None of the Defendants made any effort prior to Mrs. Fishbein’s cardiac
arrest to determine the cause of the adverse events following Marcaine injections by Dr.
Brookoff.
311. HealthONE and Clinic Services owed a duty to their patients, including
Mrs. Fishbein, to hire and retain pain management specialists who were qualified to
provide pain management services and who were prepared to handle emergencies arising
from the use of Marcaine.
312. HealthONE and Clinic Services breached their duty and were negligent in
the hiring and retention of Defendant Brookoff.
313. The negligence of HealthONE and Clinic Services in hiring and retaining
Defendant Brookoff caused the death of Mrs. Fishbein and caused Mr. Fishbein to suffer
injuries, damages and losses as more fully described above.
VIII. FIFTH CLAIM FOR RELIEF
(Uninformed consent)
314.
Plaintiff incorporates by reference paragraphs 1-311 as if fully set forth
herein.
315. Defendant Brookoff treated Mrs. Fishbein for back pain through the use of
injections with Marcaine.
316. Defendant Brookoff negligently failed to obtain Mrs. Fishbein’s informed
consent before injecting her with Marcaine by failing to inform her of the risks, benefits
and alternatives, to the procedure, including the risks specifically associated with
Marcaine injections administered by Dr. Brookoff.
317. Dr. Brookoff failed to inform Mrs. Fishbein that five of his patients in the
previous fourteen months had suffered seizures and/or cardiac arrhythmias or arrests, that
such an occurrence was a risk of the procedure particularly in light of her previous
adverse reaction to the injections; that thirty trigger point injections was an excessive
number of injections which carried an increased risk of dose-related toxicity; that he did
not have did not have immediately available an oxygen delivery system capable of
delivering sufficient ventilation, resuscitative drugs, and the personnel resources needed
for proper management of toxic reactions and related emergencies which can arise from
the injection of Marcaine; that he did not have sufficient staff or equipment support to
safely and competently treat his patients due to the actions of the co-Defendants, among
other things.
318. A reasonable person in the same or similar circumstances as Mrs. Fishbein
would not have consented to the trigger point injections had she been given the
information required for informed consent.
30
319. A reasonable person in the same or similar circumstances as Mrs. Fishbein
would not have consented to routine spinal injections had she been given the information
required for informed consent.
320. Defendant Brookoff’s negligent failure caused Mrs. Fishbein’s cardiac
arrest and subsequent death and caused Mr. Fishbein to suffer injuries, damages and
losses more fully described above.
WHEREFORE, Plaintiff respectfully prays for compensatory and exemplary
damages in his favor and against Defendants in an amount to be determined by the trier
of fact, pre-judgment and post-judgment interest as allowed by law, all costs, including
witness fees, filing fees, deposition expenses, attorneys fees, and for such other and
further relief as the Court may deem appropriate.
EXEMPLARY DAMAGES
As set forth in Paragraphs 238 through 240, which incorporate the facts and
circumstances outlined in this second amended Complaint, Plaintiff seeks exemplary
damages against all defendants.
PLAINTIFF DEMANDS A TRIAL BY JURY.
Respectfully submitted this 6th day of July, 2010.
LEVENTHAL, BROWN & PUGA, P.C.
A duly signed original is available at the
offices of Leventhal, Brown & Puga, P.C.
/s/ Lorraine E. Parker,, Esq.
Jim Leventhal, #5815
Lorraine E. Parker, #21446
Peter A. McClenahan
Attorneys for Plaintiff
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CERTIFICATE OF SERVICE
It is hereby certified that on July 6, 2010, a true and correct copy of the foregoing
document was electronically filed with the court and served to the following parties via
LexisNexis File and Serve:
Craig A. Adams, # 16753
Dickinson, Prud’Homme, Adams & Ingram, LLP
730 Seventeenth Street, Suite 730
Denver, Colorado 80202-3504
Attorneys for Defendants Daniel Brookoff, M.D.
and HealthONE Clinic Services-Medical Specialties, LLC
Barbara H. Glogiewicz, #15995
Laura M. Wassmuth, #26292
Kennedy, Childs & Fogg, P.C.
633 Seventeenth Street, Suite 2200
Denver, CO 80202
Attorneys for Defendant HCA-HealthONE,
Presbyterian/St. Luke’s Medical Center
Sent Via U.S. Mail
Elizabeth D. Alvarado
Scott J. Sherman
Shanon Martin Finkelstein & Alvarado
1001 mcKinney, #1100
Houston, TX 77002-6424
CoCounsel for for Defendants Daniel Brookoff, M.D.
and HealthONE Clinic Services-Medical Specialties, LLC
A duly signed original is available at the
offices of Leventhal, Brown & Puga, P.C.
/s/ Carmen Smallegan
____________________________________
s/Carmen Smallegan
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