Victim from 1970s Tripler hospital medical malpractice lawsuit dies
May 8—1/1
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PHOTO FROM WAYNE FERNANDEZ
Mark (left) and Wayne Fernandez.
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A man whose medical malpractice case against Tripler Army Medical Center in the 1970s was turned down after a U.S. Supreme Court statue of limitations ruling has died.
Mark Fernandez, 66, died April 20 of a "sudden heart attack," according to attorney Rick Fried, a founding partner at Cronin Fried. He suffered brain damage, palsy, bipolar disorder and was totally deaf — results of infant jaundice that was allegedly not treated by Tripler when Fernandez was born in 1958.
"If this jaundice isn't treated, the standard types of symptoms are exactly what happened to Mark: growth retardation, spasticity, brain damage and deafness — that's sort of the hallmark," Fried said Tuesday at a news conference. "(Tripler) should have transfused his blood when his level of bilirubin (a yellowish pigment that can cause jaundice in elevated levels) got to a certain level, and somehow they didn't pay attention to it. It got grossly elevated, and he wasn't treated until all this damage occurred."
Fried said this case, which was tried in 1979, was "certainly one of the saddest cases in (his) career." On the next-to-last day of the trial, a ruling decided by the U.S. Supreme Court determined that the statute of limitations in a tort claim against the government begins when the plaintiff should have discovered the injury caused by negligence, not when the injury was actually discovered.
"With two days to go on trial in federal court, we got told this case came down, and we were out of luck," Fried said.
Fried then contacted
former U.S. Sen. Daniel K.
Inouye, who tried to pass
a private bill — the only
way in which Fernandez would have received proper compensation.
"(Fernandez) never got any compensation other than government benefits," Fried said. "He was able to do menial work, and basically, that's what's so sad about this case. He should have been compensated for the terrible care he got."
Fernandez lived with his twin brother, Wayne, who, along with his wife, took care of him since 1984.
"He was independent. He could ride a bike, he caught the bus, he had a bunch of his friends and he could live a life without me being with him, but the everyday things of food, medical, taking him to the doctor, making sure his prescriptions and everything were done, and the everyday of taking care of him, I had to do that," Wayne said. "Until this day I still work, and due to the assistance I got from the government, although it helped, I still had to work to help him get through life."
Wayne Fernandez said his brother was an avid member of the Kailua Canoe Club and paddled in races every year. Mark Fernandez also worked as a classroom cleaner at Kalaheo High School, where, his brother said, he "loved the kids and that the school was great to him."
"He grew up in a great community and had a good, loving family. My kids and
my wife were great with him, and the Kailua Canoe Club, Kalaheo High School, that community circled him in. Until this day they still call me and talk to me about him," Wayne said. "Though he was disabled, he had a big heart. Everybody loved him. He gave everybody a shaka, they all loved him. He's going to be missed."
Fried said that if Tripler had treated Fernandez's jaundice, he "would have been normal at this time now."
"They treat (bilirubin) with special lights, but back then you had to do blood transfusions, which were routinely done, and Tripler certainly had the ability to do it and finally did it, but way too late," Fried said. "I'm positive that without Wayne, Mark would not have survived as he did."
Now 45 years since the case was tried, Fried said it's too late to do anything else now but that they "did everything (they) could at the time."
"It's a case that really will always live with me throughout my career," Fried said. "It was terrible timing, and unfortunately for Mark, he never got the compensation he should have."
