A just result for a deserving boy and his family

Six years ago, Tyler Goldberg-Hoss received a call from another medical malpractice attorney in the area. He had a conflict with a potential case that had come in – something about a baby suffering an injury during intubation – and wanted to see if Tyler could speak with the mother and determine whether a claim should be pursued.

At that time, Gabriel Diaz was five months old and admitted to Seattle Children’s Hospital due to injuries he suffered at nine hours of life in the University of Washington Medical Center NICU. This included a tracheostomy (a hole created in the front of the neck into the windpipe, in which a tube was inserted so he could breathe).

As his mother Martha described in that first phone call, Gabriel and his identical twin brother Julian were both delivered via planned C-section at 34 weeks. Martha’s pregnancy was considered high risk, and she had been an inpatient prior to the C-section for five weeks.

Gabriel was born first, healthy and with a strong cry. Martha was able to hold him briefly before nursing staff took them to be cleaned, and weighed, and brought downstairs to the NICU as planned for observation. It was to be the last time she held her son for weeks, and the last time she heard his voice for nearly two years.

What happened

“34 weekers,” as Gabriel and Julian were, sometimes develop a condition called Respiratory Distress Syndrome (RDS) soon after birth. The treatment for this is straightforward. The baby is intubated: a flexible tube called an endotracheal tube, or ETT, is advanced carefully through the baby’s open vocal cords and down the baby’s windpipe until it reaches the lungs. Then, a medication called surfactant is administered, which relaxes the lungs and allows the baby to breathe on their own once the tube is removed.

Gabriel was diagnosed with RDS, for which intubation was ordered at nine hours of life. The result of this intubation process was memorialized in an operative note written by an SCH surgeon hours later, after Gabriel had been emergently transported there due to an unstable airway: injury to Gabriel’s airway above and below his vocal cords, and his right vocal cord had been avulsed – torn off. These injuries resulted in the aforementioned trach, and Gabriel spending the first 21 months of his life hospitalized at SCH until he was safe to be discharged home to his family. To this day, no certainty exists as to how these injuries occurred, or even who caused them; only that they did.

Gabriel’s parents were not in the room when his airway was injured: Martha was recovering upstairs, and father Ernesto had gone home to take a shower after visiting his twin boys in the NICU. Soon after, the attending neonatologist came upstairs to tell Martha the news – they had to do a procedure on her son, it had not gone as expected, and Gabriel needed to be transferred to SCH. In shock, Martha signed the paperwork given to her to allow for the transfer. Ernesto was called – he turned around, headed back to the hospital, and was able to ride with his baby in the ambulance to SCH. Although only a few miles, it was one of the longest rides of Ernesto’s life.

As his parents’ understanding of his injuries evolved, they pushed UWMC for answers. Finally, they were told that for some reason, the medication Gabriel’s providers had used to put Gabriel to sleep had not worked, and while they were attempting to intubate Gabriel, they kept pushing down and damaged his vocal cords. Because of this, they were told, UWMC would stop using that medication when intubating babies in the future.

The fog of litigation

As one might expect, the evidence gathered in the discovery process did not match what Martha and Ernesto had been told. The records made no mention of any difficulty with the intubation process, nor any suggestion as to the mechanism of injury. The injuries themselves were only mentioned briefly in one note, by the neonatologist who secured Gabriel’s airway and noted blood. There was no video of the procedure.

The providers’ deposition testimony provided little more. Memories were foggy. Some evidence pointed to an emergent situation; other evidence contradicted this. Medications were used properly and in accordance with the Neonatal Resuscitation Program guidelines. Deposition testimony called this into question. The injuries could have been caused by the intubation tube, but also by other tools used. It could have been the new neonatal hospitalist who had only intubated a handful of babies in her career, or it could have been the experienced ARNP. It could have been the first attempt, or the second, or the third.

This utter lack of clarity brought to mind a story my father told me once, about a police officer who pulled over a car for driving erratically outside my hometown of Shelton. When the officer approached the car, no one was sitting in the driver’s seat. Instead, three men were in the back, each professing innocence and ignorance as to who was driving the car…

Course of litigation

CMG Law filed suit in May, 2016,¹ in part to preserve the parent’s claim for loss of consortium.

Given Gabriel’s young age, our pediatric neuropsychologist concluded that she could not yet adequately measure Gabriel’s deficits, should there be any, until he was at least five. She signed a declaration to that effect that served as the basis for an early motion for continuance. UW opposed it (this would become a theme). The court granted our motion with a new trial date of April, 2019 — still well before Gabriel’s fifth birthday. A second motion for continuance was therefore necessary later. UW opposed it too; the court nevertheless granted the motion, and trial was set for April 19, 2021.

UW denied all negligence and damages and pled several affirmative defenses, including non-party fault, failure to mitigate, and that Gabriel had a preexisting condition that was responsible for his damages. Discovery started slowly, though the depositions of all of the UW providers were taken early.

Counsel for the defendants elected to not start asking for depositions of many of our experts until the end of 2020, just a few months before the discovery cutoff. This is not a coincidence but a tactical choice by the defense: it gives plaintiffs’ experts little to no time to rebut the opinions of defendants’ experts, and if discovery cannot be completed in time, it may force a continuance and delaying resolution. Fortunately, we brought in Tony Russo to try the case with us, and he was instrumental in getting all of the work done.

By early 2021, King County was running all civil trials through their Zoom platform, and it was becoming evident that our trial would likely be all on Zoom. In February, UW moved for its own continuance to some unknown future date when all parties could appear in person. We, of course, opposed the motion, with the help of colleagues who graciously shared their similar briefing. Judge Richardson granted a two-week continuance, but otherwise denied the motion, citing at length excerpts from the King County Emergency Orders and the state Supreme Courts orders on pandemic operations.

As the first named plaintiff was a minor, we thought it prudent to retain a Litigation Guardian ad Litem (LGAL) to represent Gabriel’s interests. Matthew Menzer graciously agreed to assume this role. In a first for any of us, UW refused to agree to and then opposed our motion to appoint Mr. Menzer as LGAL. The motion was granted.

Shortly following their loss on the LGAL motion, UW moved again for a continuance, now alleging discovery violations. Judge Johanna Bender, who had just been assigned to the case, quickly denied the motion, noting that discovery issues had not at all been raised in their motion five weeks previously (though she did extend the discovery deadline). UW’s motion for reconsideration a week later was also denied. Trial was confirmed for May 3, 2021, on Zoom.

Our conference room became our courtroom

Trying a case in person has its own technical challenges; trying our first all-Zoom trial came with new challenges. We consulted with other lawyers who had tried Zoom trials with success (Jeff Keane, Ada Wong, Tom Vertetis, and Mike Wampold, to name a few). We considered hiring outside trial tech and support,² but elected to do it ourselves.

We purchased headsets and updated cameras, arrayed a half dozen screens on our conference room table, and were ready to give it a go. Fortunately, we all were fully or nearly fully vaccinated, so we were able to sit maskless next to one another: Tyler on the left, Tony in the middle, and Carl-Erich on the right. As we appeared for pretrial matters we fine-tuned things, and we continued to do so through the voir dire process. For example, Carl-Erich simply used the camera of his MacBook, with earpiece attached. Although we may not have looked like we were in a professional video production studio, our audio worked, our cameras worked, and we were able to present our clients’ case effectively to the jury over Zoom.

Pretrial and voir dire

We started off on the wrong foot with Judge Bender due to some confusion about the interpretive services we needed for the case.³ The Court also recognized early on the contentious nature of the litigation, as the word “stipulation” was rarely seen on a pleading or uttered during argument. In one ruling, the Court described the parties’ litigation as “brinksmanship.”

The first couple days of voir dire consisted of individual hardship and bias questioning led by Judge Bender. She let counsel for the parties ask follow-up questions of the jurors indicating potential bias in their forms, and though it was a slow process (duplicated on 38 jurors), it was a safe way to explore these jurors’ biases without tainting the rest of the pool. Because the venire consisted of 97 jurors, Judge Bender was liberal with dismissing jurors exhibiting bias. We drew a well-educated, sharp panel that was diverse and reflected a wide variety of backgrounds and professional experiences. That appears to be one benefit, at least in this small sample size, of the Zoom format: we had teachers, a lawyer, nurses, doctors, real estate brokers, stay-at-home parents, a machinist, and business owners. To us, our jury reflected more accurately the greater King County jury register. It took six days, but we got our jury.

The trial starts

Openings took place on May 11. Tyler’s opening described the relevant anatomy, what an intubation is and how it occurs, and Gabriel’s specific injuries. He also presented a theme that would be threaded through trial, one that resonated with a number of jurors: the defendants had no non-negligent explanation for how these injuries could have happened.

Instead, using one well-crafted timeline of the intubation process, and multiple medical illustrations created by Aimee Cammilleri, Tyler told the most likely story of what happened. Not unlike the game Clue (where players eliminate suspects, weapons, and locations to arrive at the answer), we had to eliminate possible providers, possible intubation attempts, and possible intubation tools to arrive at the most likely story.

He concluded with details about the miserable experience Gabriel and his parents underwent while at SCH, and the developmental deficits he continues to suffer from.

The defendants’ opening emphasized the high-risk nature of Martha’s pregnancy, introduced the theory that the situation was an emergency from the beginning, excused any injury by arguing that these tissues are all fragile, so injuries simply happen, and presented all of the ways UW’s staff met the standard of care in ways that were not relevant to Gabriel’s injuries. The three themes from the defense were: 1) this is a known complication that can happen without negligence; 2) even if there was negligence, Gabriel’s injuries are not our fault; and 3) Gabriel has a good life now.

The plaintiffs’ case

We had no direct evidence of negligence, but our experts were able to infer from the records and deposition testimony when and how the injuries likely occurred. Our experts testified that the injuries were exceedingly rare, and likely the result of the ARNP pushing the intubation tube through the resistance of the tissues of Gabriel’s airway, including his right vocal cord. They testified that no other explanation was reasonable, and that absent an emergency, it is per se negligence.

While the Zoom platform presented some challenges, in other ways it proved useful in allowing witnesses to explain their testimony. Our testifying pediatric otolaryngologist used the “White Board” function to draw the relevant anatomy in a dynamic way that was engaging for the jury. And our pediatric ARNP demonstrated the process of intubation, using a mannequin and positioning her camera (in her home office in Baltimore) so that the jury could watch her do it.

Because Gabriel’s 21-month stay generated over 30,000 pages of records, we retained a pediatric nurse to review and work with us to distill it down into something a jury could digest. After 272.5 hours,⁴ the numbers she was able to provide the jury were powerful: a 639-day hospital stay; over 8,000 procedures to suction his tracheostomy; 13 surgical procedures for which anesthesia was required; nine times when a code was called due to his airway instability; and only one visit outside in the sunshine, for 15 minutes. Through all of it, a trach in place that allowed him to breathe, but prevented him from vocalizing any words or sounds.

Our pediatric neurologist testified that Gabriel exhibited deficits more likely than not attributable to the highly aberrant experience of living in a hospital for the first 21 months of life. Further, Gabriel’s profound deficiencies in speech and language acquisition, which provide the foundation to all learning, were likely permanent, but therapy would help to lessen the effect they would have on his life.

We knew we had sympathetic and likeable clients, but worried that something would be lost in translation and over Zoom (as two of our witnesses presented testimony in Spanish). It was not. Though the interpretation slowed things down, you do not need an interpreter to translate raw emotions.

One witness, Gabriel’s grandmother, gave impassioned testimony about her grandson’s experiences; while every day Gabriel’s parents were working full-time and visiting in the evenings after work, his grandmother would spend the afternoons with him. She saw her role in his life as bringing joy and laughter to an otherwise miserable situation. She described the crib he was locked into at night (to prevent him from climbing out), the times they spent playing, reading, and singing in the room, and the single, solitary time he was allowed to go outside — to a rooftop garden — in his first 21 months. Although Carl-Erich cut a lot of her direct testimony out for efficiency’s sake, UW’s cross-examination more or less allowed her to continue to testify about damages, basically unfettered, for another hour.

Gabriel’s parents each powerfully testified to their experiences in their difficulties getting to and caring for their son, and their observations since his discharge. They testified about the day-to-day ways in which Gabriel’s deficits are apparent, most obviously that his identical twin brother is very much Gabriel’s teacher and guide to daily life. UW’s cross got nowhere with either parent. Following each parent’s testimony, they were asked whether they had been diagnosed with PTSD due to their experience.

The defense takes some swings

The defense positions, presented through both fact and expert witnesses, were that there was no proof of negligence, and that injuries can happen during neonatal intubation without negligence; any damages were not their fault; and in any event, Gabriel is all good now or nearly so.

In spite of defense counsel’s description of the intubation process as an emergency, all UW’s fact witnesses contradicted this. Each of the four UW providers testified that it was NOT an emergency until after Gabriel’s airway had been injured. But no defense witness offered any explanation for how this injury could have happened absent negligence. UW simply denied that these injuries constitute negligence.

The ARNP – who Plaintiffs’ experts testified was the likely one responsible for these injuries – was an experienced neonatal nurse practitioner who had intubated hundreds of babies in her career. She was adamant that she had not done anything wrong, and that she was certainly not responsible for tearing off Gabriel’s right vocal cord.

Remarkably, one of UW’s experts, the chair of a pediatric otolaryngology department in Texas, testified that avulsing a neonate’s vocal cord is easy to do because vocal cord tissue is “gelatinous” and avulsions occur frequently even if they are rarely reported in the literature. Tyler and the jury jumped on the “gelatinous” opinion. Jury questions regarding the supposed gelatinous quality of neonatal vocal cords obviously threw him off guard, as his body language promptly changed from self-assured and arrogant to almost vigorously massaging his face looking for answers. The otherwise formidable and slick witness had lost whatever credibility remained.

Following this, UW presented an ARNP expert who testified that she saw no evidence of any negligence during the intubation process. Following examination by the attorneys, one of the jurors asked her if she considered vocal cord tissue to be “gelatinous.” “No,” she said after a long pause, “I don’t agree with that.”

This same otolaryngologist also fabricated two previously unknown, undiagnosed congenital anomalies that he alleged would have resulted in Gabriel needing a trach even without the damage done to his airway during the intubation process.

The other reason UW argued it was not its fault that Gabriel suffered cognitive delays was because it was Gabriel’s parents’ fault for not having him discharged earlier. By the time of trial, UW had withdrawn nearly all its affirmative defenses, including failure to mitigate. This became significant once trial started. From the beginning (defense counsel’s opening slides), UW argued for admission of evidence and testimony regarding early discharge options supposedly available to Gabriel, but refused by his parents. This was important, as Plaintiffs’ neurologist attributed Gabriel’s current and likely future developmental delays on growing up for the first 21 months of his life in the “aberrant” environment of a hospital.

Although no such affirmative defense was available to UW, it instead sought to introduce such evidence as “directly relevant to causation.” Defense counsel was initially successful in introducing the concept of early discharge to rebut Plaintiffs’ contention that the medical expenses due to the SCH care were reasonable (instead of a pediatric group home, which would have been cheaper), but Judge Bender reversed her ruling soon after as it became clear to the court that SCH, rather than Gabriel’s parents, made the discharge decisions. It also was clear to us that the defendants were attempting to raise a failure to mitigate claim without pleading it, or without competent (and disclosed) testimony that any such discharge would have made a quantifiable difference in Gabriel’s neurologic outcome. In spite of the court’s ruling, defense fruitlessly argued for literally hours over the course of the trial for inclusion of some form of this testimony and continued to attempt to subtly advance this argument in front of the jury.

Finally, justice

After closing arguments, the jury deliberated for two days before returning a verdict of $4M for Gabriel and $1M for each of his parents. Martha took the verdict in her kitchen, where she had been for the previous six weeks of trial and sobbed when the verdict was read. Ernesto was sprinting home from work when the verdict was read. It was both unusual and satisfying to take the verdict from our conference room.

To the best of our knowledge, this represents the first Plaintiffs’ verdict in an all-Zoom medical negligence trial in Washington. It may be the first in the entire country.

This article appeared in the November 2021 issue of WSAJ’s Trial News