Charles Franzen vs Santa Barbara Cottage Hospital et al
Case No: 18CV03174
Hearing Date: Fri Jun 07, 2019 9:30

Nature of Proceedings: Minor’s Compromise

TENTATIVE RULING:

Subject to the court’s further inquiry at the hearing of this petition, the petition of Michael Franzen, guardian ad litem for plaintiff Charles Franzen, for approval of plaintiff’s compromise as to defendants Santa Barbara Cottage Hospital and Aimee E. Gough, M.D., and for approval of payments as set forth in the petition, is granted.

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 infusion 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).)

When this matter was previously before the court, the court requested additional information regarding the reasonableness of the settlement as to the settling defendants and regarding the requested manner by which the funds were to be handled after payment. On May 29, 2019, plaintiff provided a supplemental declaration of counsel addressing these issues.

In the supplemental declaration of attorney Brian K. O’Connor, O’Connor provides evidence that the responsibility of the settling parties is low. (O’Connor supp. decl., ¶ 1.) There is evidence that Dr. Gough merely observed the procedure performed by remaining defendant Dr. Keshen and Dr. Gough had no responsibility in assisting. (Ibid.) SBCH’s responsibility is limited to respondeat superior liability as Dr. Gough’s employer. (Ibid.) The settlement of $29,999.00 is short of reporting limits and reasonably appears as a compromise based on the cost of further litigation. (Ibid.) Plaintiff seeks only non-economic damages. (Id. at ¶ 2.) On the evidence presented, it appears to the court that the settlement was made in good faith and is fair and reasonable to the minor plaintiff.

The amount of attorney fees and costs are reasonable under the totality of the circumstances here to be paid from the gross settlement amount.

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.) In response to the court’s request for further information, petitioner explains that this request is to have the funds available to pay litigation costs, including expert fees, through the trial against the remaining defendant and to invest the funds in a conservative higher interest-yielding account compared with interest paid in a blocked account. (Petition, supp. attachment 19(b)(6).) Given the amount of money at issue and the need for funds to pay litigation costs for the remaining proceedings, the manner in which the settlement funds are to be held appears appropriate.

Subject to the court’s further inquiry at the hearing of this matter, the court will approve the petition.