Chemnick | Moen | Greenstreet

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Why We Do The Work

By Pat Greenstreet

The attorneys break for lunch in the middle of a long day of hospital personnel depositions. The town is small, as is the rural hospital, and it’s not the first time a partner of Chemnick Moen Greenstreet has deposed the hospital nurses and local doctors. Some of the faces today are familiar, as are the questions I am asking. This is the firm’s third, heartbreaking baby case against the hospital. Two infants died at birth and today’s depositions are focused on the circumstances surrounding one of those deaths.

One infant was devastatingly injured. That case settled late last year, and I am spending my lunch break visiting the family.

Twenty-one-year-old Mara Sancha1 and her husband, Roman, were thrilled about their first child. Mara had an uneventful prenatal period until she developed preeclampsia in week 39 with blood pressure of 140/88. She was admitted to the local community hospital for induction of labor with swelling of her face, legs and feet, and +2 protein in her urine shortly before admission on August 7, 2007, at 7:14 a.m. The fetal heart monitor tracing indicated signs of fetal well-being. Cervadil was administered, followed by Pitocin. Mara received magnesium sulfate during active labor.

Seven pound baby Anthony was vaginally delivered 46 hours and 24 minutes later on August 9, 2007, at 5:38 a.m., having evidenced fetal distress and late decelerations with every contraction since approximately 4:00 a.m. on August 8. He was 7 pounds with Apgar scores of 1, 1, and 5, delivered amidst thick black meconium. When Mara’s membranes naturally ruptured 30 hours earlier, the fluid was clear. The baby was delivered by a family practitioner without a pediatrician in attendance, nor a physician qualified to do a C-section.There were several violations of the standard of care on the part of the delivering family practitioner and the nursing staff, including failure to consult with an obstetrician or surgeon to consider patient transfer or cesarean section delivery; failure to reasonably monitor Mrs. Sancha; failure to recognize her abnormal labor pattern; overdoses of both Pitocin (causing uterine hyper¬stimulation) and magnesium sulfate (causing further neonatal depression); failure to recognize the significance of the fetal heart rate monitor pattern; failure to anticipate delivery of a profoundly impaired fetus and request a pediatrician to attend the delivery to provide resuscitation; and a host of lesser violations. As a result, at delivery Anthony exhibited no respirations, no muscle tone, no irritation and had a decreased heart rate.

Anthony suffered a profound hypoxic-ischemic brain injury combined with a severe to very severe partial prolonged injury component (i.e., total asphyxia pattern) and also trauma.Baby Anthony was airlifted to a tertiary care center where he began to seize at eight hours of age. Mara was admitted to the same medical facility the following day for a retained placental fragment and a D&C.The worried parents spent 40 days with their son in NICU. The child neurologist told them that Anthony suffered his injuries from lack of oxygen and that he should have been delivered earlier by C-section.

Anthony was ultimately diagnosed with severe neonatal hypoxic ischemic encephalopathy, microcephaly, epilepsy, severe developmental delay, mental retardation, inability to swallow so he requires feeding by gastrostomy tube, overlapping cranial sutures secondary to lack of brain growth, and shortened life expectancy. Anthony’s injuries are devastating, and he remains totally dependent for every aspect of his care.

We retained the services of a bilingual, long-time social worker, and drove 200 miles to meet Anthony and his parents with the interpreter. The family lived in a tiny, one bedroom apartment owned by Roman’s employer, sparsely furnished and scrupulously clean. Mara, less than five feet tall, fought mold every day – because it’s her nature and because Anthony is susceptible to lung ailments. There’s a small counter in the kitchen, a hot plate, a tiny oven and small refrigerator. Both shy people, Mara and Roman obviously adored their damaged son and were doing everything in their power to make sure he had everything they could provide. And they desperately wanted to believe that two-year-old Anthony would get better with time and care.

The appropriate time period passed after serving the pre-suit Form 95 notices, and a very detailed Complaint was prepared. The case was filed in Superior Court against the hospital and physician. It was then removed to U.S. District Court as the delivering doctor worked for a federally funded clinic. At the first telephone conference, the judge urged all parties to come to agreement as soon as possible.

I invited the defense counsel to a home visit so they could meet Anthony and his parents. While the hospital’s attorney declined, counsel for the USA accepted the invitation. He, too, was impressed by the hard-working family and saddened by Anthony’s catastrophic injuries.I retained 13 superbly qualified, nationally known experts, many of whom normally testify only on behalf of defendants. Not a single expert who reviewed the case was less than emphatic in their opinions about negligence and causation. The lengthy and detailed expert witness disclosures required by Federal Court were filed, and mediation was scheduled three months later.

Defendant USA notified plaintiffs they were coming to the table with no authority for a specific dollar amount, but planning to negotiate how their final settlement proposal could be allocated in instruments acceptable to the United States and most beneficial to Anthony Sancha during his lifetime.

A special needs trust and reversionary trust were worked out over the course of the next four months and defendant USA settled for $4,000,000. The hospital settled for a lesser amount during mediation.

I have been representing plaintiffs in medical negligence cases including obstetrical claims for 28 years. It’s not often that I have an opportunity to actually see the post-litigation results. I take a deep breath, smile and park the car.

It’s late April, and the leaves are full and green on the two large beech trees to either side of the modest, 45-year-old, single-story house. From the deck at the front door, over the fence and hedge, the river can be seen flowing through the valley below and shades of the valleys that nestle beyond. Roman is at work, but Mara greets me at the door, still shy, but the stress is gone from her face as she proudly asks me to tour their home.Like their tiny apartment, the house is sparkling clean. Anthony sits harnessed in his wheelchair. Melissa, his two-year old adoring baby sister plays by his feet. The eat-in kitchen is large, and there is both a bonus room and a recreation room two steps down from the living room – perfect for Anthony’s needs as he grows and will need more equipment and outside care. The 2,300-square-foot home has two other bedrooms, a fully finished basement, a utility room, dining room, double-pane windows and ceiling fans, a dishwasher, and washer/dryer. The house is simple by some standards, but to Mara and Roman it’s a palace. Mara proudly shows me the wheelchair-adapted vehicle they call “Anthony’s Van” parked in the carport.

There were so many people who put time and care and expertise into this very worthy case: Plaintiff’s experts; a fair and compassionate defense attorney; the SGAL who also was personally touched by the case; the Wells Fargo Trustee/Trust Administrator, Dirk Peterson; Barbara Isenhour, who oversaw the Special Needs Trusts; EPS Settlements Group; and most of all, the interpreter, a lovely, caring man who not only interpreted for the case, but additionally spent many hours of his own time in assisting the Sancha family as they tried to cope with Anthony’s challenges. Generous support and information was also offered by the Northwest Justice Project, the Department of Developmental Disabilities, and the NW Immigrant Rights Project.

I pause. Before entering the hospital to continue the afternoon round of depositions, it’s not that these are bad or uncaring people, but another baby died because those in charge again didn’t recognize when the obstetrical case became too complicated for the family practitioners and the hospital’s unfortunate lack of equipment and resources. To call in a specialist from a nearby facility, who would have known when an airlift to a specialty center was needed, was a simple decision that would have avoided another disaster and even more heartache.

The visit to the new home of Mara and Roman reminds me that this is what medical negligence cases are all about. We can get so engrossed in the medical details and the process of litigation that we lose sight of the fact that our purpose and goal is to benefit the lives of our clients. It was satisfying to settle a major case like this, and the firm celebrated the victory with a dinner for the entire staff. But this return visit to see my clients was a reminder that our civil justice system means more than holding people accountable for their errors. It also means making a difference in the lives of those who were injured.This case made a huge difference for the family of Mara and Roman. That is the real satisfaction for attorneys who take on the challenges of a complex medical negligence case.

Endnotes:

  1. Names are changed for privacy and to comply with Settlement Agreement provisions.

Pat Greenstreet, WSAJ EAGLE member, is a partner in the Seattle firm of Chemnick Moen Greenstreet, which limits its practice to medical negligence claims. This article was first published in Trial News, January 2013.

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