Stricken child's case may set legal precedent

The Leungs sued Nishibayashi and Verdugo Hills Hospital, and in 2007 won a jury verdict granting them $78,000 for past medical costs and nearly $83 million for future bills. Because the future-care portion would be paid through an annuity and other factors, Esner said the value of the verdict is roughly $96 million.

But the family had already accepted a $1-million settlement offer from Nishibayashi, the maximum on his medical malpractice insurance policy. The judge reluctantly approved the deal, leaving Verdugo Hills Hospital with the burden of fulfilling the jury’s judgment.

That’s where the release rule comes into play. The rule holds that when one party responsible for an injury reaches a settlement to dramatically reduce his or her liability, other responsible parties cannot be made to pay the rest of the tab.

On appeal, Verdugo Hills Hospital argued it should be released from liability for medical damages. Last month, a three-judge appellate panel in Los Angeles agreed. However, in writing for the court, Justice Thomas Willhite Jr. said the release rule “can create unintended and inequitable results” and urged that it be abandoned.

Aidan’s attorneys are appealing the case to the California Supreme Court. They expect to find out this summer whether the court agrees to take the case, lets the ruling stand or sends it back to the court of appeal with more questions.

Robert Olson, an attorney for the hospital, said Verdugo Hills continues to believe it is blameless in Aidan’s misfortune.

“The hospital’s job is to ensure that the patient calls the doctor to discuss a potential problem. The hospital did that in this case,” he said.

As the legal wheels have slowly turned, Aidan has turned 8. He has a brother, Connor, who is 5. With the encouragement of special education teachers, he is attending public school in the Pacific Palisades, where his family now lives. He receives food and muscle relaxants through an intravenous tube.

Nancy Leung said that through her son’s smile and other expressions, as well as a computer-based sensor system called a DynaVox, she and her husband can communicate with Aidan about school, his feelings, and whether he would like to listen to music on her iPod.

She said Aidan’s grandparents help a lot in his upbringing. Caring for Aidan’s healthy younger brother can be as much of a handful, Leung added.