Charles Franzen vs Santa Barbara Cottge Hospital et al
Case No: 18CV03174
Hearing Date: Fri May 03, 2019 9:30

Nature of Proceedings: Minor’s Compromise

TENTATIVE RULING:

For the reasons set forth herein, the hearing in this matter is continued to May 24, 2019, at 9:30 a.m. Petitioner shall file supplemental papers as required herein on or before May 17, 2019.

Background:

On June 25, 2018, plaintiff Charles Franzen, by and through his guardian ad litem, Michael Franzen, filed his original complaint asserting one cause of action for medical malpractice. The complaint alleges that defendants Tamir H. Keshen, M.D., and Aimee E. Gough, M.D., a resident at defendant Santa Barbara Cottage Hospital (SBCH), negligently performed an influsion port removal surgical procedure on plaintiff Charles Franzen, a minor. (Complaint, ¶ GN-1.)

On August 2, 2018, defendant Dr. Keshen filed his answer to the complaint, generally denying the allegations thereof and asserting 12 affirmative defenses.

On August 8, 2018, defendant SBCH filed its answer to the complaint, generally denying the allegations thereof and asserting 20 affirmative defenses.

On September 14, 2018, defendant Dr. Gough filed her answer to the complaint, generally denying the allegations thereof and asserting 20 affirmative defenses.

On April 19, 2019, plaintiff filed this petition to approve plaintiff minor’s compromise with defendants Dr. Gough and SBCH. The terms of the settlement are that the settling defendants pay $29,999.00 and the complaint is dismissed as to the settling defendants only. (Petition, ¶ 11(c).)

No opposition or other response has been filed to the petition.

Analysis:

“A petition for court approval of … a compromise or settlement of a pending action or proceeding to which a minor … is a party … must be verified by the petitioner and must contain a full disclosure of all information that has any bearing upon the reasonableness of the compromise, covenant, settlement, or disposition.” (Rules of Court, rule 7.950.)

The petition states that the plaintiff has recovered completely from the effects of the injuries and that there are no permanent injuries. (Petition, ¶ 9(a).) The medical records attached as attachment 9 indicate that on December 15, 2017, surgery was performed on plaintiff and the remaining portion of the port removed. (Petition, attachment 9.)

The petition requests approval to pay from the settlement amount: $3,839.30 in itemized costs and $7,499.70 in attorney fees representing 25 percent of the gross settlement amount. (Petition, ¶¶ 14, 15.) There are no medical expenses to be paid from the settlement. (Petition, ¶ 13.) The net settlement is $18,660.00, which is sought to be distributed to petitioner’s guardian ad litem as a custodian under the Uniform Transfers to Minors Act. (Petition, ¶¶ 16, 19(b)(6).)

The court requests additional information regarding the following:

The declaration of counsel states that the main defendant is remaining defendant Dr. Keshen. (O’Connor decl., p. 14.) Apart from the statements that the parties have engaged in discovery and the amount of the settlement, the petition does not provide sufficient factual detail for the court to find that the $29,999 settlement amount is reasonable as to the settling defendants, both as to the absolute amount of this settlement and in proportion to the liability of the settling defendants. For example, the medical records indicate that the plaintiff had significant distress from the portion of the port that was removed in December 2017, including requirements for therapy. It is unclear whether the settlement amount is entirely for noneconomic damages, whether there is an economic component to the settlement, or generally the potential damages claimed by plaintiff.

The settlement proceeds are sought to be paid to the plaintiff’s guardian ad litem under the Uniform Transfers to Minor Act. The guardian ad litem is the minor plaintiff’s father in whose home the plaintiff resides. (Petition, attachment 19(b)(6).) The guardian ad litem is also a licensed Certified Public Accountant. (Ibid.) These facts are not sufficient as an explanation as to why the settlement funds should be transferred directly to the guardian ad litem rather than placed in a blocked account. A further explanation of reasons for the disposition of the settlement funds is required.

The court requires this additional information before the court can reach a determination on the merits. This matter will be continued to allow for further briefing.