Steve Shapiro and I are very happy to report a Plaintiff's Verdict on a Medical Malpractice case that we received Tuesday in Denver District Court.

Judge Elizabeth Starrs presided over this extremely contentious three week trial. She was attentive, fair and despite the continued eyes of COPIC’s appellate counsel who attended every minute of trial, did an admirable job of keeping the case moving and the record clear and consistent.
The Players: Our client is an adorable 7 year old boy represented by his wonderful and caring 61 year old grandmother. The Defendant was Stella Hines, M.D. a Pulmonologist/Critical Care Specialist employed by National Jewish contracted to work at Rose Medical Center back in September 2009. The Defendant was insured by two COPIC policies and was represented by Lisa Leasure and Kay Rice. Early in the case, Rose Medical Center was also a Defendant, as was an OBGYN named Valerie Imperial, M.D. Rose Medical Center was represented by Michelle Prud’Homme and Gil Dickinson. Plaintiff settled claims against the hospital and then voluntarily dismissed the OBGYN Valerie Imperial, M.D. after discovery demonstrated her lack of responsibility for Plaintiff’s injuries. Dr. Imperial had been represented by Amy Cook Olson and Kay Rice.

The Claims: Plaintiff was 31-32 weeks in utero when his 23 year-old-mother presented to Rose Medical Center in respiratory distress from an asthma attack and pneumonia. Mom eventually required intubation to secure her airway. The intubation was attempted unsuccessfully two times by Defendant Hines. The intubation was then successfully completed by an ER doctor. After intubation, mom was moved to the ICU where she remained under the care of Dr. Hines.

A few hours after intubation, mom’s endotracheal tube became dislodged. Dr. Hines discovered the misplaced tube on X-ray and entered an order to advance the tube in 5 cm (rather than re-intubating mom). The tube was advanced by a respiratory therapist at Dr. Hines’ order. The tube advance was the first of a series of events that ultimately resulted in injuries to Plaintiff. Despite several signs/symptoms (which included increased pressures on the ventilator, decreased O2 SATs, gargling sounds coming from the patient’s mouth), Dr. Hines did not identify the problem and did not re-intubate the patient. The most telling sign that mom’ ET tube was improperly placed (the sign that the jurors advised was the one they could not reconcile and ultimately resulted in a Plaintiff verdict) was the large amount of air that accumulated in the patient’s stomach (visible on X-ray) and the large amount of air later found in her intestines. This “sign” demonstrated that the ET tube had been filling the patient’s esophagus and stomach with air rather than and/or in addition to her trachea and lungs.

The testimony from eye witness doctors and nurses was so emotional and vivid. Air was heard escaping from mom’s bottom with each squeeze of the Ambu bag during the C-Section procedure and for an hour afterwards. Mom’s intestines were described by the general surgeon as looking like “balloons used to make balloon animals.” Mom was finally re-intubated by an anesthesiologist and the sound of the air stopped, her O2 levels returned to 100{f8270180bd013a86e8a7bdc2029d331e433a151f411edd98c48642ec5f8162bf}. However, she never regained consciousness.

As a result of the misplaced ET tube and mom’s lack of O2, our client (Xander) experienced bradycardic for 20+ minutes, and fetal heart tones were unobtainable for 11 minutes. Eye witness testimony confirmed baby’s heartbeat was not visible or audible on ultrasound. Plaintiff was resuscitated. He suffered hypoxic ischemic brain injuries resulting in visual motor, visual spatial, visual memory, fine motor deficits and secondary ADHD, along with other conditions (such as hernia, NEC and developmental delays) related to prematurity.

The defenses were countless. Liability and Damages were contested. The leading Defense damage theory was that baby would be born prematurely anyway due to how sick mom was – therefore it argued primarily that all evidence of abnormalities with baby related to prematurity not to brain injury.

The Experts:

For Plaintiff: Gerald Gioia, Ph.D. (Pediatric Neuropsychologist from Children’s National Medical Center, Washington D.C.); Adre DuPlessis, M.D. (Pediatric Fetal Neurologist from Children’s National Medical Center, Washington D.C.); Donald Null, M.D. (Neonatologist from UC-Davis, California), Andrew Perron, M.D. (ED Doctor from Maine Medical Center, Portland, ME); Gary Salzman, M.D. (Pulmonologist/Critical Care Specialist from University of Missouri-Kansas City); Patrick Barnes, M.D. (Pediatric Neonatal Neuroradiologist from Stanford University), Theonia Boyd, M.D. (Placental Pathologist from Boston Children’s Hospital); Brooke Elsberry, R.T. (Respiratory Therapist at Rose Medical Center, Denver), Valerie Imperial, M.D. (Treating OBGYN, Denver), Robert Pash, M.D. (Treating General Surgeon, Denver); Jennifer Frausto, R.N. (Treating L & D Nurse, Rose Medical Center, Denver); Amy Connery, Ph.D. (Treating Pediatric Neuropsychologist at Children’s Hospital Denver); Tess Simpson, Psy.D. (Treating Pediatric Psychologist Children’s Hospital Denver); Lesa Schirmacher, Ed.S. (School Psychologist, University Prep, Denver); Valerie Luckenbill (Special Education Director, University Prep, Denver); Franny Mazone, RN, CLCP (Life Care Planner, Denver), Aubrey Corwin, MS, LPC, CRC (Vocational Rehabilitation Counselor, Boulder, CO), Mark McNulty, Ph.D. (Economist, Boulder, CO). Prior to dismissal of Dr. Imperial, Plaintiff’s endorsed Susan Crowe, M.D. (OBGYN Stanford University) and Beth Faulkner, DNP, Stanford Children’s Health).

For Defense: Jay Markson, M.D. (Plaintiff’s Pediatrician, Denver, CO), Dennis Matthews, M.D. (Plaintiff’s Treating Physical Medicine and Rehabilitation doctor, Children’s Hospital Denver); LuAnn Papile, M.D. (Neonatologist/Perinatologist, Indianapolis, IN); Jan Kennaugh, M.D. (Neonatologist, Denver); Dani Raeburn, M.D. (ED doctor, Denver); Michael Noetzel, M.D. (Pediatric Neurologist, Washington University, St. Louis, MO); Joseph Forrester, M.D. (Pulmonologist/Critical Care Specialist, Denver); Amy Adelberg, M.D. (Perinatolgist, Denver); John Kirk, Ph.D. (Pediatric Neuropsychologist, Louisville, CO); Nicholas Stence, M.D. (Neuroradiologist, Denver); Scott Andersen, M.D. (Neuroradiologist, Denver, CO) Defendant Stella Hines, M.D.

Thank you: This case was fought long and hard by many lawyers at our firm over the past 6-7 years. A special thank you goes to Marlo Greer who worked with Steve Shapiro on this case through settlement of the wrongful death claim, and to Amanda Pfeil who handled legal arguments, motions and jury instructions, to Amy Rogers who spent hundreds of hours on deposition summaries and motions and to Melissa Winthers who kept our firm afloat and well managed in the absence of all of its other lawyers! We would also like to recognize and thank Scott Eldredge and Isobel Thomas for your guidance and “ears” over the past several months. We wish to thank and recognize High Impact Graphics for all the innovative and important animations and exhibits that were created for this case. And for all the last minute and late night hours that were spent revising exhibits after motion battles that involved right down to the commas, periods and fonts of these exhibits.

The Lessons:

There are just too many to account for in this post. Steve and I could both intubate any one of you should the need ever arise. We are also able to spell and correctly pronounce “Periventricular Leukomalacia” in our sleep. We will continue to create animations and other important exhibits VERY early in the process and we will continue to expect tedious/lengthy motion practice related to exhibits as technology advances and options for explaining our cases to juries continue to increase.

The Result:

After 9.5 hours of deliberations, that began on the Friday before President’s Day weekend and continued the Tuesday thereafter, our client was awarded a verdict of $2,105,000.00. The breakdown: Past Economic and Non-economic damages: $0.00; Future Medical Bills: $55,000.00; Loss of Future of Earning Capacity: $1,300,000; Future Non-economic damages: $750,000.00. With reduction for “non-economic damages cap” and 7 years of interest the verdict is expected to exceed $3 million for our very deserving 7 year-old.