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Orange County
Superior Court
Case No. 759345
Filed: February 7, 1996
Plaintiff:
Alan L. Menkes, M.D.
Laura Menkes
Defendant:
All-Care Animal Referral Center
Craig Bergstrom, DVM
Summary of Case: Plaintiff's, Alan L. Menkes, M.D.
& Laura Menkes were the owners of a certain pure bred dog, a
champion pug named "Henry D. Pugg". All all times
herein mentioned, Plaintiffs had certain ownership and property
interests in said dog, including but not limited to, the dog's
value as a pure bred animal.
On or about February 7, 1995, Defendants, and each of them,
undertook the care, treatment and examinations of the
Plaintiffs' dog, "Henry D. Pugg". During the course of
the initial examination and consultation, Defendant, Craig
Bergstrom, DVM, discussed the potential for performing a certain
diagnostic test, a spinal tap, on Plaintiffs' dog. Plaintiffs
specifically declined the recommended spinal tap and so informed
Defendant, Craig Bergstrom, DVM Plaintiff's dog was, however,
left in the care of Defendants for other diagnostic tests,
specifically an MRI of the brain, on the date aforesaid.
On or about February 8, 1995, Defendants, intentionally,
unlawfully, maliciously, wantonly and recklessly undertook the
spinal tap on Plaintiffs' dog, "Henry D. Pugg",
without Plaintiffs' consent and in direct contravention of
Plaintiffs' directions not to perform the spinal tap. As a
direct and proximate result of the performance of the
aforementioned spinal tap, Plaintiffs' dog was killed and his
value forever lost.
The actions of Defendants, as aforesaid, were intentional,
malicious, extreme, outrageous, unprivileged and done for the
purpose of causing Plaintiffs' to sustain severe emotional
distress or in reckless disregard of the probability of causing
Plaintiffs' severe emotional distress. Further, such actions in
disregarding Plaintiffs' specific instructions not to perform a
spinal tap and causing the death of Plaintiffs' dog were done in
conscious disregard of Plaintiffs' rights to their property,
justifying an award of punitive damages.
Resolve:
All-Care paid off out of court.
Statement From Mr. Alan L.
Menkes MD:
As a medical expert, boarded in Internal Medicine, I have
first hand knowledge of their operation as their negligence and
fraud resulted in the death of our Pug/son Henry D. Pugg. It was
a prelude to our first child, so his death at the hands of Dr.
Bergstrom was most traumatic to my wife, who buried him in our
backyard, coffin and all.
I went with her and Henry to the clinic on the advice of our
generalist vet who felt his seizures could only be treated by a
neurologist vet. We went to All-Care and Dr. Bergstrom walked
in. I asked him specifically, "Sir, are you a
neurologist?" He said "Yes." and I explained that
Henry began having seizures in both legs and lying on the
floor. They lasted under two minutes. After a superficial and
cursory examination, he said the dog needed a spinal tap, skull
x-rays and an MRI. I asked him the cost and he replied
"fourteen-fifty." I asked where the decimal was and he
smiled and said "there was none." I asked him what the
different studies would reveal and their probability of giving
us an answer. He said the dog could have a brain tumor. I then
asked, " Is the dog brain similar to the human brain in
physiology or function?" I was dressed in shorts and,
tennies and a Beavis and Butthead t-shirt. He replied,
"They are identical." I then asked, "Wouldn't he
have to have a parasagittal lesion in order for BOTH legs to be
involved?" He then asked what I did for a living and I
replied "retired" and that all. I pressed him some
more on the diagnostics. He had to concede that the possibility
of finding a tumor on the brain would be minimal at best via
x-ray. As far as the MRI, it was a 60:40 possibility. I asked
why a spinal tap (he did say "spinal" as this is a
crucial point in my complaint to the veterinary board) and he
replied to rule out an infectious process. I asked if a
blood test would be just as revealing , especially since Henry
had no fever. He began to state something about a fungal
infection, but caught himself, realizing I was not an
un-uniformed client. I then asked if idiopathic epilepsy occurs
in dogs. He said, "Yes." I then asked is it fair to
assume that is the more likely diagnosis than a tumor, by at
least a 2-1 margin and he conceded this. He added that the dose
is higher for animals than in humans. I suggested that we try
the phenobarb for a month and if the seizures recurred and the
phenobarb level was sub-therapeutic, we could proceed to MRI. I
got 1000 tablets via my own prescription for $2.00. We allowed
the blood test as my wife insisted something be done. It was
normal.
One month later, the seizures returned so we returned to
All-Care for the MRI. I SPECIFICALLY INSTRUCTED FOR DR.
BERGSTROM NOT TO DO A SPINAL TAP UNDER ANY CIRCUMSTANCES! As we
left, my wife noted a wistful gaze that only a Mom could
recognize and told me she knew she would never see him alive
again. What a horrible premonition. She left town for a day and
I received an urgent call the very next afternoon from a lady
vet who informed me that they were doing CPR on Henry. I asked,
"How can an MRI lead to cardiac arrest?" She informed
me it happened after "the procedure". I pushed her to
explain and she reluctantly revealed the the dr. had performed a
systemal tap (puncture of the space at the back of the skull
above the brain). Henry had an immediate cardiac arrest and
expired. When I told my wife, on her return, she was
incredulous. We drove to the clinic immediately. Dr. Bergstrom
came in the exam room and said he was "sorry". I
asked why he did the spinal (brain) tap when I specifically
interdicted this. He said again, "I'm sorry" and
looked down at his feet. I asked what the MRI showed and he said
he was right, Henry had a tumor blocking a ventricle. (Similar
to a lake for spinal fluid in the brain). I said, "Dr.,
obstructive HYDROCEPHALUS IS AN ABSOLUTE CONTRADICTION TO SPINAL
PUNCTURE! WHY DID YOU YOU DO IT?" My poor wife was so upset
at this point she said she just wanted her dog back.
Bergstrom left and returned with a dirty blanket with something
in it. It was our Henry. My wife lost complete control and we
left.
A week later we got a bill for the entire procedure,
including the tap of the brain. We had left without paying, but
they had our American Express number and billed it anyway
without our signature and wrote "signature on file". I
explained in detail to AmEx as I did here and they canceled the
charge and withheld payment to the clinic.
We consulted an attorney who informed us that the damages are
limited in a malpractice suit to the cost of the dog (chattel)
and emotional distress cannot be attached to chattel (furniture,
vase or a dog). My wife did not want to pursue further legal
action since the emotional trauma would have been resurrected.
We do have a beautiful daughter now but she never got to know
Henry, even though he slept under her bassinette each night
until he was killed.
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