As trial nears of a lawsuit brought on behalf of a 3-year-old boy who allegedly suffered a brain injury during care for leukemia at Children’s Hospital Los Angeles, his attorneys are citing privacy grounds in trying to quash a subpoena for his records at the child’s daycare center.
The Los Angeles Superior Court negligence suit filed last Sept. 24 states that the plaintiff was admitted to CHLA last May 21 for treatment of newly diagnosed acute lymphocytic leukemia. During his care the next day, he developed acute airway obstruction and went into cardiac arrest, the suit contends that not all care, treatment and procedures rendered to and performed upon the plaintiff was with the express and implied consent of plaintiff.
A code blue — a hospital term for a critical medical emergency, typically a patient experiencing cardiac or respiratory arrest, requiring immediate resuscitation by a specialized team — was called and the boy was given chest compressions and other treatment, but due to the administration of allegedly negligent sedation and anesthesia care he suffered a permanent severe brain injury, including cerebral palsy, the suit further states.
Trial of the lawsuit is scheduled Aug. 31, an early date granted by Judge Jerrold Abeles over CHLA’s objection due to the boy’s age. CHLA maintained the early trial date violated their due process and interferes with their ability to file a standard dismissal motion just before trial.
On Wednesday, the boy’s lawyers, and former emergency medicine physician Bruce G. Fagel, filed court papers with Abeles in advance of a June 5 hearing asking that he not allow CHLA access to the boy’s daycare center records at ABC Academy, nor should they be permitted to take the deposition of an ABC representative who the defense expects would be knowledgeable about the boy’s experiences there.
“The filing of a lawsuit does not effect a wholesale waiver of constitutional privacy,” the boy’s attorneys contend in their pleadings. “Any implied waiver must be narrowly construed and compelled disclosure must be narrowly drawn to protect the privacy interests at stake.”
Because the subpoena and deposition notice seek preschool records and testimony concerning a minor child, CHLA bears the burden of justifying that intrusion with a “narrowly tailored” request showing ties to the issues actually in dispute, according to the plaintiff’s attorney’ pleadings.
“It has not done so,” according to the plaintiff’s attorneys’ court papers, which further states that CHLA lawyers have said they want the records because how the boy functions outside the home is at issue in the lawsuit and the daycare caretakers regularly observe him.
In their court papers, CHLA attorneys deny the lawsuit allegations and state that “all care, treatment and procedures rendered to and performed upon the plaintiff was with the express and implied consent of plaintiff.”