DaVita lost because of its conduct

DaVita world headquarters located in downtown Denver.

As counsel in the case against DaVita that resulted in the imposition of $375 million in punitive damages, we write to respond to the egregious misrepresentations made to this paper by DaVita’s chief medical officer, Dr. Allen Nissenson. Since Nissenson wasn’t at trial to hear the witnesses or see the evidence, here are some facts from the trial he plainly wasn’t told about.

Without telling the independent doctors rounding in its clinics, DaVita signed a multi-year contract with a company called Fresenius to begin using — for the first time — the dialysis solution GranuFlo in hundreds of its clinics. DaVita did so even though its vice president testified under oath that GranuFlo had no clinical benefit; it was just cheaper.

Fresenius repeatedly told DaVita that GranuFlo would add 8 units of a chemical called acetate to the dialysis solution. The liver converts acetate into bicarbonate, something the patient’s doctor already prescribes. Patients treated with GranuFlo thus receive two doses of bicarbonate. Fresenius told DaVita that before using GranuFlo, DaVita needed to tell kidney doctors and adjust the bicarbonate prescriptions to avoid a double dose. DaVita’s own vice president of biomedical operations agreed. DaVita knew that high bicarbonate levels can cause cardiac arrest and stroke.

What did DaVita do to mitigate those risks? Nothing. It switched to GranuFlo without telling the treating doctors, despite knowing that the patients would get more bicarbonate than the doctor prescribed. The reason DaVita acted this way was clear: Treating doctors would have rebelled had they been told that DaVita was using GranuFlo just to save money, with no clinical benefit and, for patients like ours, a 600 percent to 800 percent increase in the risk of cardiac arrest, according to the evidence admitted. Even when GranuFlo was recalled, DaVita did nothing except assure doctors it had observed no adverse events. Unsurprising, as DaVita wasn’t monitoring for adverse events and couldn’t even say which patients got GranuFlo.

The plaintiffs’ case is not speculation. It is mainstream science, has been adopted by the FDA and is incorporated into the GranuFlo warning label. The supposedly “peer reviewed” science that Dr. Nissenson relies upon was, after being rejected by five other journals, published in an Egyptian-based pay-to-publish kidney journal (with an independent rating of 0) many years after the events of this case. We challenge Dr. Nissenson to show The Denver Post a single document showing that before switching to GranuFlo, he saw any peer-reviewed science disproving the well-established connection between high bicarbonate and cardiac arrest.

DaVita’s culture of indifference starts at the top. Kent Thiry has been its CEO for almost 20 years, yet he testified he knows nothing about the role of bicarbonate in dialysis. DaVita’s claim that suits like this drive up the cost of doing business is an insult to the jury and the public. Perhaps if Dr. Nissenson focused more on medicine and less on the “cost of doing business,” our clients’ loved ones would still be alive and others would not be at risk. DaVita’s unrepentant attitude will ensure that the next jury sends an even louder message.

Rob Carey is an attorney and partner at Hagens Berman Sobol Shapiro. Stuart Paynter is an attorney and founder of The Paynter Law Firm.

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