A judge has approved a $15 million settlement to a lawsuit filed by the family of an incapacitated woman who was raped at a Phoenix health care facility and later gave birth.
Maricopa County Superior Court Judge Theodore Campagnolo on June 10 approved the $15 million settlement agreement between the family of the incapacitated woman, now 32, and the estate of the physician who cared for her at Hacienda HealthCare — Dr. Phillip Gear Jr.
Gear died Dec. 20, court documents say.
The woman and her family had previously reached a settlement with Arizona for $7.5 million.
Hacienda HealthCare is a private, nonprofit facility that houses patients whose care is paid for through the state’s Medicaid program and whose cases are managed by the Arizona Department of Economic Security.
The lawsuit accused the state of being “grossly negligent” in monitoring, overseeing and assessing Hacienda’s operations.
The case attracted international headlines when it became public in January 2019. A Hacienda HealthCare staff member who cared for the patient — Nathan Sutherland — was later accused of rape using DNA evidence. Sutherland was a licensed practical nurse who has since surrendered his license.
Sutherland has pleaded not guilty to charges of sexual assault and abuse of a vulnerable adult.
“The evidence is clear that Dr. Gear failed to adequately perform as a PCP (primary care physician),” Campagnolo wrote. “Whether that was caused by ennui, physical infirmities, exhaustion or other reasons, he had not been meeting the standard of care for several years.”
Baby is living with rape victim’s parents
The lawsuit, filed Dec. 24, 2019, did not name Hacienda HealthCare as a defendant. According to court records, the rape victim and her family settled a claim against Hacienda HealthCare for an undisclosed amount prior to filing their lawsuit.
The lawsuit did name two doctors who cared for the woman: Gear and Dr. Thanh Nguyen. Gear surrendered his medical license. The Arizona Medical Board opted not to take any disciplinary action against Nguyen, who reached a confidential settlement with the rape victim and her family.
Gear voluntarily gave up his medical license in a consent order in 2019. He was the longtime physician for the woman, who has severe physical and cognitive disabilities. She was raped and gave birth while a resident at Hacienda HealthCare in Phoenix.
The woman’s baby is now living with her parents in the San Carlos Apache community. The woman did not return to Hacienda HealthCare and is now living in a different Arizona facility.
In his judgment, Campagnolo wrote that the failures of other defendants in the lawsuit, “pale in relation to Dr. Gear, who had a professional obligation to (the victim) that spanned 26 years with fully knowledge of the identifiable risks to (the victim) due to her complete disability.”
Medical expert: Doctor should have known the patient was pregnant
Court documents included testimony from Dr. Sharon Cooper, an expert witness for the plaintiffs who specializes in sexual abuse of developmentally disabled children. Cooper said Gear should have known the victim was pregnant because when he examined her on Sept. 13, 2018, she had a firm belly, which “should have alerted Dr. Gear to a potential pregnancy.”
And even though Gear treated the victim’s armpit discharge, another indication of pregnancy, he still overlooked the fact that she was pregnant, court documents quote Cooper saying.
Cooper, a staff forensic pediatrician for the Southern Regional Area Health Education Center in North Carolina, testified that Gear should have known that developmentally disabled patients are highly susceptible to sexual assaults and that medical records showed he did not conduct the requisite and regular examinations required by federal law.
“Dr. Cooper stated that the medical records showed that (the victim) had been the victim of sexual assaults beyond the act that caused her to become pregnant,” the settlement documents say.
“Based on her experience, Dr. Cooper stated that the sexual assaults caused toxic stress, and that the sexual assaults would be remembered by (the victim), causing agitation with future physical contacts by anyone, even if the contacts were benign.”
An expert for Gear’s insurance company countered that the victim has no self-awareness, is in a non-responsive state, does not understand language, and cannot feel pain.
Medical board found a history of problems with doctor’s performance
Gear had last treated the woman for a cyst on Sept. 13, 2018, and then transferred her care to another provider, medical board records show. The woman gave birth on Dec. 29, 2018.
The board voted in September 2019 to suspend Gear’s license and scheduled an administrative hearing. Board documents say Gear decided to retire from medicine and not contest the actions of the board. He agreed to sign an order for a surrender of his license.
“I decided to retire rather than to go through several rounds of legal proceedings, in view of my own age,” Gear said in a statement to The Arizona Republic through his lawyers at the time.
At that time, Gear was 67 years old.
“I will miss the generations of families who have entrusted the medical treatment of their children to me and who have benefited from my care and professionalism.”
Gear’s statement said that throughout his 33 years of practicing medicine in Arizona he provided high-quality medical care to all patients, including patients at Hacienda.
“I do not, of course, discuss the specific treatment of individual patients with the news media,” he said.
Records show Gear had treated the Hacienda patient going back to 1992 when she was 3 years old and went to live at Hacienda because of severe health problems, including a seizure disorder. The woman was dependent on a feeding tube and required support from a ventilator, board records say.
A 911 call from Dec. 29, 2018, indicates Hacienda staff had no idea the woman was pregnant until they noticed she was giving birth.
The medical board began investigating Gear after receiving a complaint that he “may have failed to diagnose pregnancy in an incapacitated patient,” board records show.
During the course of its investigation, the board found other problems with Gear.
Investigators interviewed four students who had rotated through Gear’s practice during training, who said Gear did not enter patient rooms to examine patients with them. The standard of care requires a physician supervising students to confirm all findings of the students by the physician’s own physical examination, which Gear did not do, the board found.
The board records also show that Gear’s “physical condition,” which was not fully explained, limited his fitness to practice medicine. The investigation found he could not independently practice medicine without the participation of a nurse practitioner or another physician to gather clinical information and perform necessary evaluations.
In 2001, the board sent Gear a letter of reprimand over his treatment in 1996 of a newborn infant who had been having difficulty with bowel movements. Gear failed to perform a rectal exam, which fell below the standard of care, the board found. The infant later died.
In a separate case, the medical board in October 2019 voted 5-4 to dismiss a complaint against Nguyen,
Nguyen ordered the patient’s feeding tube to be discontinued on Dec. 13, 2018 — 16 days before she gave birth — to promote weight loss, her family’s original notice of claim says.
Complaints against three former Hacienda HealthCare nurses were dismissed by the Arizona Board of Nursing.
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