NEWS ANALYSIS : 2 New Issues Triggered Settlement in Frustaci Case

The last-minute settlement of the Frustaci medical malpractice lawsuit last week may have appeared to come out of thin air but, spurred by two stunning developments, both sides had ample reason to settle the case.

Moments after a settlement was announced awarding $2.6 million to $6 million to care for the three surviving Frustaci septuplets, Patti Frustaci’s attorney announced that his client is pregnant with twins--a secret, the attorney said, she kept from him until days before the trial was scheduled to begin in Santa Monica Superior Court.

The lawyer, Browne Greene, said he was concerned that news of a new multiple pregnancy would not sit well with the jury, especially in light of Frustaci’s claims of extreme suffering during the earlier pregnancy. And there was other potentially embarrassing information that might have come out in a trial--information that was not in line with the upstanding public image of the Frustaci family.

The second surprise was a legal move that allowed the settlement to take place despite the opposition of Dr. Jaroslav Marik, the physician who prescribed the fertility drug Pergonal to Frustaci and was later sued by the couple for his alleged failure to properly monitor the drug’s effect on her.

Marik’s partner at the renowned Tyler Medical Clinic in Westwood and his insurance carrier, The Doctors Co., initiated talks to settle the case despite Marik’s refusal to even discuss a settlement over the last five years.

In the final days before jury selection, a judge appointed a provisional director to break the deadlock between Marik and his partner, Dr. Stanley Friedman, over whether they would settle.

Friedman and the temporary director then voted to begin settlement negotiations.

Marik and Friedman are embroiled in bitter litigation over the dissolution of their practice. Frustaci attorney Greene had planned to put Friedman on the stand to testify against his partner.

Attorneys on both sides said insurance companies almost never try to settle a claim against a doctor’s wishes because under state law, the physician must concur before any payments can be made. But Frustaci and her husband, Sam, agreed to dismiss Marik from the case, giving a Pyrrhic victory to the man who had waited silently for five years, believing that he would be vindicated by a jury.

In moving to settle, attorneys said, the insurance company was being pragmatic. Who knows what might have happened had the three guileless Frustaci 5-year-olds, each wearing Coke bottle-thick glasses, won the hearts of the jurors?

Marik fought until the end, vehemently denying responsibility and portraying Frustaci as a willful patient who upped the dosage of the fertility drug on her own in her zeal to conceive.

In 1985, four of the septuplets died within 19 days of their birth. The surviving three have developmental and physical impairments. An older Frustaci son, also conceived with the help of Pergonal, is normal.

Last week, Patti Frustaci said the surviving septuplets are “5 years old and look like 3 and act like it too.”

The Frustacis’ lawsuit sought monetary damages for the wrongful death of the four babies, the children’s difficulties and their emotional distress. The family asked for $12 million to $14 million.

But Greene said he was upset when he learned just before trial that Frustaci has been treated again for infertility, this time at Loma Linda University Medical Center near San Bernardino. Greene said he was concerned that Frustaci, by taking another chance with a Pergonal-assisted pregnancy, was weakening her claim of how horrific the earlier pregnancy had been.

“People might think she did the wrong thing,” the lawyer said. “It undercut her claim of suffering from multiple gestation. . . . I didn’t know eventually how it was going to cut with a jury.”

Greene said he had planned to tell the jury at the outset about the pregnancy--couching it as the act of a Mormon family whose religion emphasizes family. Despite the ordeal with her septuplets, Frustaci yearned for (in her own words) another “normal child.” And, Greene said he would tell the jury, “she deserved it.”

Ironically, Marik’s attorney, Craig Dummit, said he heard rumors of the infertility treatment and pregnancy long before Greene did. As he edged toward confirming the information, Dummit said, he got a call from Marik--who had learned of it independently.

Dummit said the new pregnancy was very damaging to the Frustaci case and would have allowed him to show that Frustaci--no matter how much monitoring was done--was prone to multiple pregnancies.

Then there was other information Dummit was poised to reveal about Frustaci.

The more Greene portrayed the Frustacis as a God-fearing, all-American family to the jury, the more likely he would have opened the door for the defense to present the potentially embarrassing information Dummit had uncovered.

In 1987, Frustaci was arrested for driving under the influence of alcohol and Valium. In the car with her were her three toddlers and a Tupperware tumbler full of alcohol, according to the sworn deposition of a CHP officer. In her purse, the officer noted, were 60 to 100 Valium tablets.

Frustaci’s blood-alcohol level registered 0.19%, nearly twice the level for legal intoxication in 1987. She subsequently pleaded no contest to a reduced charge of reckless driving.

According to court documents, Frustaci told one of the doctors hired as an expert witness in the case that the 1987 drinking incident was a reaction to her having learned that the surviving septuplets have cerebral palsy.

According to motions filed just before trial, Frustaci also had been arrested twice when she was a student at Brigham Young University in Utah--once for driving under the influence of alcohol and once for driving under the influence of the prescription sleeping pill Seconal.

“Patti Frustaci had for many years and had at the time of the pregnancy . . . a habit of abusing substances (alcohol and drugs) whenever she was depressed, disappointed or under stress,” Dummit said in his written argument urging the judge to allow a jury to hear the evidence to support his claim.

The attorney said he had hoped to use the information to show that Frustaci’s emotional distress predated the deaths of her children. And, he noted, one of the conditions the surviving children suffer--hyperactivity--is frequently caused by fetal alcohol syndrome.

A pediatric neurologist who examined the children and was scheduled to testify for the Frustacis concluded, however, that the hyperactivity was a complication of the multiple pregnancy.

(There was nothing in the court record to indicate whether Frustaci consumed any alcohol or took any medication during the early months of the septuplet pregnancy. Court records indicate she had a prescription for Valium, written by a doctor other than Marik, but there is no indication whether she took any of the pills.)

In any event, Greene said that information was irrelevant and claimed the defense wanted to introduce it to besmirch Frustaci in front of the jury. Greene won the first round with the trial judge, Superior Court Judge Joel Rudof, who prohibited the mention of the information during opening statements.

But, depending on trial testimony, that ruling could have changed.

“(Frustaci) was concerned,” Greene said. “Anybody would have been concerned.”

An even more delicate matter--and one that was seldom discussed--was whether any of the childrens’ problems could have been attributed to their genetic history, instead of the multiple gestation. According to sworn depositions, Sam Frustaci, like his wife, had fertility problems. As a result, donor sperm was used to artificially inseminate Patti Frustaci.

Dummit also was prepared to produce a witness, according to court documents, who would have testified that Frustaci admitted to doubling her dose of Pergonal--against her doctor’s orders--before the conception of the septuplets.

The judge who administered this week’s settlement, Superior Court Judge David Rothman, ruled that the surviving septuplets--Patti, Richard and Stephen--were entitled to annuities for the rest of their lives.

Until their 18th birthday, Stephen, the most impaired child, will receive $1,000 a month, Richard will receive $600 and Patti $400. These amounts are guaranteed to the family even if the children die.

After they turn 18, Stephen’s monthly stipend jumps to $3,000, Richard’s to $2,000 and Patti’s to $1,000. If they reach a normal life expectancy of 71.2 years for males and 78.2 for females, the total settlement could reach $6 million.

After attorneys’ fees and costs are deducted from the $450,000 immediate payment to the family, the Frustacis will take home a check for $120,000 to $150,000, Greene said.