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Attorney argues medical malpractice killed pedestrian struck by SF city worker

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James Harris, a former Department of Public Health employee, exits the courtroom at San Francisco’s Hall of Justice Tuesday, January 2, 2018. (Jessica Christian/S.F. Examiner)

A woman with a genetic disorder that made her bones fragile died because of medical malpractice, not because a San Francisco city worker struck her as she crossed Market Street in a wheelchair.

Such was the argument an attorney for the driver made Tuesday during opening statements in the vehicular manslaughter trial of 69-year-old James Harris for the death of 38-year-old Thu Phan. Harris is facing the misdemeanor charge in San Francisco Superior Court.

Phan was in the crosswalk at Seventh and Market streets on Feb. 5, 2016 when Harris hit her with a hybrid sedan registered to the Department of Public Health. The impact sent Phan flying from her wheelchair, caused her brain to bleed and broke bones in her legs and ribs.

“Everyone thought she would be okay,” said Deputy Public Defender Dana Drusinsky. “There was no indication that she would pass away.”

But Drusinsky said doctors at San Francisco General Hospital made Phan’s brain swell by pumping her with more “fluid” than appropriate for a person of her size. Phan weighed 52 pounds and was under 3 feet tall because of a genetic disorder called osteogenesis imperfecta.

“The accident didn’t kill her, but the gross medical negligence in the hospital did,” Drusinsky said.

Her theory ran counter to the opening statement of prosecutor Kara Lacy.

“Mr. Harris was driving in a negligent way,” Lacy told jurors. “That negligence is what caused Ms. Phan’s brain to bleed and what caused her to pass away.”

Harris was driving in a red-painted lane typically reserved for buses, taxis and bicyclists on Seventh Street when he made a left turn onto Market Street.

“When he did that, there were numerous people in that intersection,” Lacy said.

Drusinsky disputed whether there were people in the intersection other than Phan. Drusinsky said no one was in the crosswalk when Harris entered the intersection.

However, Lacy showed jurors a video that showed at least one other person in the crosswalk at the time of the incident.

Drusinsky also claimed Harris drove into the intersection when there was one second left for pedestrians to cross and Phan entered the intersection after him, when there was only a quarter of a second left to cross.

“Phan entered the crosswalk when she wasn’t supposed to,” Drusinsky said.

Drusinsky said there was so little time for Harris to react that “he would’ve needed to predict the future to prevent this.

“This was a true surprise,” Drusinsky said. “If someone is going to step in front of your car, you’re going to hit them.”

Drusinsky also said Harris was allowed to use the red lane as a DPH worker who transported people with severe mental disabilities since paratransit vehicles are permitted in the lanes.

Drusinsky said Harris had just dropped off a patient and was delivering payroll to the DPH building at 101 Grove St. when he struck Phan. He worked for the South of Market Mental Health Services program.

Rachael Kagan, a DPH spokesperson, said Harris resigned in July 2016.

Eric Darius, a motorcyclist driving behind Harris at the time of the incident, testified Tuesday as the first witness for the prosecution that Harris was driving “aggressively” before he struck Phan.

Darius said there was bumper-to-bumper traffic crawling up Seventh Street that morning. It was the weekend of Super Bowl 50 in San Francisco when the National Football League closed downtown streets for Super Bowl City.

“I heard this horn going off over and over and over and I knew it was in the car ahead of me,” Darius said. “[Harris] seemed to be gunning every inch he could go and blowing the horn.”

Darius nearly came to tears when Lacy asked if he saw the collision.

“Yeah, I saw it,” Darius said.

Darius also said he recalled “a few” people in the crosswalk.

Harris declined to comment when he exited the courtroom using a cane. Inside the courtroom, he used an inhaler to stop his heavy breathing. There were no family for the victim or defendant watching from the empty gallery.

The prosecution is expected to call six or seven witnesses in total.

The defense is also expected to call witnesses including a medical expert to testify about the alleged medical malpractice.

Lacy said closing arguments are slated for next Tuesday.

A spokesperson for SFGH did not immediately respond to a request for comment.

Last February, Phan’s parents settled a wrongful death lawsuit with San Francisco for nearly $2.9 million. The lawsuit claimed Harris “made an illegal and unsafe left turn.”

Phan was one of 16 pedestrians killed in traffic collisions in San Francisco in 2016, according to The City’s Vision Zero program to end traffic fatalities.

Between January and November 2017, 12 people were struck and died in The City while walking. These numbers do not include bicyclists.

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