Fein v. Permanente Medical Group

When Lawrence Fein (plaintiff) experienced chest pains, he went to his physician’s office at Permanente Medical Group (Permanente) (defendant), an affiliate of Kaiser Health Foundation (Kaiser). Fein was only able to see a nurse practitioner, Cheryl Welch. After examining him and consulting with Dr. Wintrop Frantz, Welch told Fein that he likely had a muscle spasm and prescribed Valium. When the medication had no effect and the pains worsened, Fein went to the Kaiser emergency room where Dr. Lowell Redding took an x-ray and, like Welch, advised Fein that he had a muscle spasm. Still suffering, Fein later returned to the emergency room where Dr. Donald Oliver ordered an electrocardiogram (EKG). The EKG showed that Fein was having a heart attack; he was admitted and treated without surgery. Fein sued Permanente in a California court for medical malpractice, arguing that the correct diagnosis should have been made earlier so as to prevent the heart attack or lessen its effects. At trial, a Dr. Harold Swan testified on Fein’s behalf that an EKG should have been ordered on the basis of the symptoms presented to Welch and Redding. Dr. Swan estimated that the late diagnosis of Fein caused him to lose half of his remaining life expectancy. Witnesses for Permanente offered strongly conflicting evidence. In empaneling the jury, the judge excused for statutory cause all potential jurors who were members of Kaiser, which amounted to 24 of 60 potential jurors. The judge reasoned, based on past experience, that conducting individual voir dire of such Kaiser members would be extremely time-consuming. In the charge to the jury, the judge instructed them that the standard of care required of a nurse practitioner was the same as that required of a physician or surgeon if the nurse practitioner were examining or diagnosing a patient. The jury found for Fein and awarded him approximately $1 million in damages. Permanente appealed, citing, inter alia, the exclusion of Kaiser members from the jury and the instruction as to Welch as bases for reversible error.