A judge approved a $ 15 million settlement legal action filed by the family of an incapacitated woman who was raped in a Phoenix health facility and later gave birth to a child.
Maricopa County Superior Court Judge Theodore Campagnolo approved the $ 15 million settlement agreement between the family of the now 32-year-old woman and the estate of the doctor who looked after her at Hacienda HealthCare – Dr. Phillip Gear Jr.
Gear died on December 20, court documents say.
The woman and her family had previously reached a $ 7.5 million settlement with Arizona.
Hacienda HealthCare is a private, not-for-profit facility that houses patients whose care is paid for through the state Medicaid program and whose cases are managed by the Arizona Department of Economic Security.
The lawsuit alleged that the state was “grossly negligent” in overseeing, monitoring and evaluating Hacienda’s operations.
The case made international headlines when it was published in January 2019. A Hacienda HealthCare employee who cared for the patient – Nathan Sutherland – was later accused of rape based on DNA evidence. Sutherland was a licensed practical nurse who has since passed her license.
Sutherland has pleaded guilty to the sexual assault and abuse charges of a vulnerable adult.
“The evidence is clear that Dr. Gear has failed to perform adequately as a PCP (Primary Care Doctor),” wrote Campagnolo. “Whether due to boredom, physical ailments, exhaustion or other reasons, he has not met the standard of care for several years.”
Baby lives with the rape victim’s parents
Hacienda HealthCare was not named as a defendant in the lawsuit filed on December 24, 2019. According to court records, the rape victim and her family settled a lawsuit against Hacienda HealthCare for an undisclosed amount before filing their lawsuit.
The lawsuit named two doctors who cared for the woman: Gear and Dr. Thanh Nguyen. Gear submitted his medical license. The Arizona Medical Board decided not to take disciplinary action against Nguyen, who reached a confidential settlement with the rape victim and her family.
Gear voluntarily gave up his license to practice medicine in a consent decree in 2019. He was a longtime doctor for the woman with severe physical and cognitive disabilities. She was raped and gave birth while staying at Hacienda HealthCare in Phoenix.
The woman’s baby now lives with her parents in the San Carlos Apache Ward. The woman did not return to Hacienda HealthCare and now lives in another facility in Arizona.
In his verdict, Campagnolo wrote that the failure of other defendants in the lawsuit is “paler in relation to Dr. Gear, who had a professional obligation to (the victim) that spanned 26 years, in full knowledge of the identifiable risks to (the Victim).) Because of their complete disability. “
Medical expert: The doctor should have known that the patient was pregnant
The court documents included the testimony of Dr. Sharon Cooper, an expert for the plaintiffs who specializes in the sexual abuse of children with developmental disabilities. Cooper said Gear should have known the victim was pregnant because when he examined her on September 13, 2018, she had a firm tummy that “should have alerted Dr. Gear to a possible pregnancy.”
And even though Gear treated the victim’s armpit discharge, another clue of pregnancy, he still overlooked the fact that she was pregnant, court documents quote Cooper.
Cooper, a forensic pediatrician with the Southern Regional Area Health Education Center in North Carolina, testified that Gear should have known that developmentally challenged patients are very susceptible to sexual assault and that medical records showed that he did not perform the required and regular exams by federal law.
“Dr. Cooper stated that the medical records showed that (the victim) was a victim of sexual assault beyond the act that led to her pregnancy,” the settlement documents read.
“Based on her experience, Dr. Cooper found that the sexual assault caused toxic stress and that (the victim) remembered the sexual assault, resulting in arousal of future physical contacts in everyone, even if the contacts were benign.”
An expert from Gear’s insurance company countered that the victim had no self-confidence, was not approachable, did not understand language and could not feel pain.
The Medical Association has identified problems with the doctor’s performance in the past
Gear had last treated the woman for a cyst on September 13, 2018 and then transferred her care to another provider, according to medical association records. The woman gave birth on December 29, 2018.
The board of directors voted in September 2019 to suspend Gear’s license and schedule an administrative hearing. Board documents indicate that Gear has decided to retire from medicine and not to contest the board’s actions. He agreed to sign an order to issue his license.
“I decided, given my age, to retire instead of going through multiple rounds of legal proceedings,” Gear said in a statement to the Arizona Republic by his attorneys at the time.
Gear was 67 years old at the time.
“I will miss the generations of families who have entrusted me with the medical treatment of their children and who have benefited from my care and professionalism.”
His statement said that during his 33 years as a medical professional in Arizona, he provided high quality medical care to all patients, including those at the hacienda.
“I, of course, do not discuss the specific treatment of individual patients with the news media,” he said.
Records show that Gear had treated the hacienda patient since 1992 when she was 3 years old and moved to hacienda because of serious health problems, including a seizure disorder. The woman was dependent on a feeding tube and needed assistance from a ventilator, according to the board’s records.
A 911 call on December 29, 2018 indicates that Hacienda staff had no idea the woman was pregnant until they realized she was giving birth.
The Medical Association began investigating Gear after receiving a complaint that it “may not have diagnosed a pregnancy in an incapacitated patient,” according to agency records.
In the course of its investigation, the board found additional issues with Gear.
Investigators interviewed four students who shot through Gear’s practice during training, who said Gear did not enter patient rooms to examine patients. The standard of care requires that a doctor overseeing the students confirm all of the students’ findings through the doctor’s own physical exam, which Gear did not do, the board found.
The board records also show that Gear’s “physical condition,” not fully explained, restricted his fitness to practice medicine. The investigation found that without the involvement of a nurse or other doctor, he could not practice on his own to gather clinical information and conduct necessary assessments.
In 2001, the board of directors sent Gear a reprimand for treating a newborn baby who was having difficulty defecating in 1996. Gear was unable to perform a rectal exam that fell below standard of care, the Board found. The infant later died.
In another case, the Medical Committee voted 5 to 4 in October 2019 to dismiss a complaint against Nguyen.
Nguyen ordered the patient to stop feeding the patient on December 13, 2018 – 16 days before giving birth – to encourage weight loss, according to her family’s original complaint.
Complaints against three former Hacienda HealthCare nurses have been dismissed by the Arizona Board of Nursing.
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