$24+ Million Verdict for Failing to Recognize and Report Child Abuse

Matt Wetherington served as associate counsel on a six week trial that resulted in a 24.8 million verdict.  The lawsuit alleged that hospital staff failed to take action in 2003 when a 6 year-old boy was taken to the hospital with injuries that showed he was abused.  The boy was taken to the hospital with two broken bones in his arm.  He lived with his mother and her boyfriend at the time.  The hospital had protocols in place that would have accurately detected the inconsistencies in the mother’s story and clear signs of abuse.  The protocol was not followed and the hospital sent him back to the dangerous home, where the child later suffered a massive head and brain injury.

 

 

After the trial, the hospital established a new child-abuse team to ensure that every child in the hospital system receives a proper abuse screening.  There is no way to know just how many lives have been saved or positively impacted by this change.  With the money received from the verdict, the young boy was able to receive the medical treatment that he needed and went on to graduate from high school!

 

 

Cale Conley of Conley Griggs Partin served as lead counsel.  In 2012, he wrote an article in Verdict Magazine, which is reprinted below.

 

HOW OUR CLIENTS OBTAINED JUSTICE

Gaines v. Cumberland County Hospital System, Inc.
By: Cale Conley

 

From August of 2003 to October 4, 2011, the day a Fayetteville, NC jury decided the case, we and a persistent team of lawyers and staff[1] from three states pursued a civil action for severely brain-damaged, quadriplegic Ajamu “Man Man” Gaines, Jr. and his devoted father, Ajamu “Moo” Gaines, Sr. against Cumberland County Hospital System, a/k/a Cape Fear Valley Medical Center, and a number of other medical providers who had been involved with Man Man’s care back in April 2003.[2]   To give some perspective, when we first took on the case, Ajamu was a frail six-year-old child who could be lifted with ease, the war in Iraq had just been (quite prematurely) declared a “mission accomplished,” the average price of a gallon of gas in Georgia was $1.58, the Boston Red Sox had still gone over 80 years without a World Series title, and I had no children.

 

On the day of the verdict, Man Man was a 14-year-old in full physical development, the Iraq war was the longest still-running saga in our nation, gas had climbed to over $4 a gallon, the Red Sox were twice world champions, and I had two daughters, one of them in the first grade.  What happened over those 8 years in the Gaines case itself is reminiscent of the line attributed to Twain that “the difference between fact and fiction is that fiction must be credible.”  Credible or not, this is the short version of the case and what transpired during those eight years, and at least my own thoughts on how justice was finally delivered to Man Man and Moo, for whatever those thoughts may be worth.

The Underlying Story of What Happened to Man Man

Dating back to 1984, Cape Fear Valley Medical Center adopted its first hospital-wide policy on “Child Maltreatment” — meaning a policy requiring its health care providers to look for and report to authorities patients in their care who they suspected may be victims of abuse or maltreatment at the hand of another.  In 2003, some 20 years later, that policy remained, and had evolved, to a six-page document with a mission statement that that included a promise that “maltreatment prevention is a significant component of the hospital mission.”  Other language in the policy in place in April 2003, though later “re-interpreted” by witnesses for the hospital, stated that an “abuse/neglect screen” – a document containing a checklist of risk factors for abuse – was to be performed on “all patients” by the nursing staff.

Through another nursing policy at the hospital, if any one factor on that abuse/neglect screen was checked, an immediate report to Social Services was to be made so that further investigation, and intervention, could be made to protect the child.  Items to be checked on the abuse screen included, among others, findings of “multiple injuries in various stages of healing,” “conflicting histories of injury,” “discrepancy between injury and history,” and “untreated old injuries in an area of the body normally covered by clothing.”  Beyond stating policy, the hospital’s maltreatment policy provided specific guidance on what to do if suspicions arose, and even included the names and phone numbers of local forensic pediatricians who could be called upon to tactfully consult if there was any question of abuse, including among them a local pediatrician named Sharon Cooper (remember that name).

It was into that hospital, with those policies, that Man Man presented with his mother on April 15, 2003.  Man Man was at that time a healthy 6-year-old boy who had suffered a new, 100%-displaced fracture of both the radius and ulna bones in his right arm, an inch or two above his wrist, with the bones appearing on X-ray like two parallel pencils that had been snapped and dislodged laterally from their other half.  Depending on which page of the medical records you read, he was reported to have “jumped off a 3-4 foot porch” at his home, or “fell” from a porch, or that he lost a shoe, tripped as he went down a set of stairs, and then fell.  In April 2003, no nurse, no medical provider, no one, ever sought to determine which of those three “conflicting histories” of injury were the truth.  In fact, no one even asked Man Man’s mother if she had been present and seen the injury-producing event herself — it would be learned much later that she was not home and did not see any of the events she reported as “history” because her children were left in the care of her recently unemployed boyfriend, a man known to her at the time as Jason Willis or “Oodie,” and he provided her his account of the injury.  Moreover, no one at the hospital apparently ever questioned how, under any of the various reported histories of a fall from, at most, 3-4 feet, this young boy suffered totally displaced fractures of that severity and in that location, particularly when medical literature supports that most falls onto wrists from heights of less than 8 feet would have produced no significant bone injury or, if it does, the fractures would be less severe or at a different location closer to the union of the hand and arm.

When Man Man’s broken bones could not be reduced in the E.R., he was admitted to the hospital and sent to the O.R. for an internal reduction under anesthesia.  When the anesthesia began, Man Man aspirated and there was concern debris may have entered his lungs, so a chest X-ray was ordered in the O.R. to rule out “aspiration pneumonia.”  The chest film was promptly sent to a radiologist located at the hospital, and at 12:42 a.m. on April 16, 2003, less than 2 hours after surgery, a final, dictated radiology report was completed.  The radiologist documented a new fracture finding that was not mentioned at all in the history of the visit:  evidence of an “old-appearing fracture at the ninth posterolateral rib.”  According to later 30(b)(6) testimony from the hospital, that report would have been placed, by a nurse, in Man Man’s chart with “10 minutes or so” from the time it was dictated as final.  So, as of at least 1 a.m. on April 16, 2003, while he was an admitted patient at the hospital in a room on the pediatric floor, Man Man’s hospital chart contained different X-ray reports reflecting two new broken bones (the radius and ulna) as well as one old broken bone (the 9^th rib).  In other words, he had objective findings and documentation of “multiple injuries in various stages of healing,” one of the known “red flags” for suspicion of abuse.[3]

The testimony that evolved over the next eight years revealed four critical “takeaway” points about that April 2003 hospitalization:

1. Other than the radiologist who dictated the report, not one doctor, not one nurse – no one among a multitude of health care providers who saw him at the hospital – ever read the chest X-ray report in April, May or June 2003 and, in fact, when Man Man was discharged on April 16, 2003 back to his home, no one even told the mother they had found an unexplained rib fracture or asked her how it may have occurred in such an odd location;[4]
2. Despite hospital policy, no abuse/neglect screen form was completed on Man Man in April 2003 as required by the language of the hospital policy, and thus none of the four risk factors for abuse identified above (or numerous others) were checked and no report was made to Social Services, a forensic pediatrician, the police, or anyone else for further investigation;
3. Not one health care provider had even a slight suspicion of potential abuse in April 2003, despite the various red flags that were present in the chart and the fact that under hospital policy, “maltreatment prevention is a significant component of the hospital mission;” and
4. It is reasonably foreseeable that if a child is being abused and signs or symptoms of that abuse are missed and  the child returns to the custody of the abuser, future and likely more severe injury is likely to occur.

Man Man was discharged on the afternoon of April 16, 2003 and sent back to the primary care of his mother’s boyfriend, who had never come to the hospital.  His father and mother were separated, and living apart at the time, with Man Man in the mother’s custody.[5]

On July 3, 2003, about 10 weeks later, Man Man returned to Cape Fear Valley Medical Center.  This time, however, he was in an ambulance rushing him to the ER, unresponsive and with a serious head injury that left him in critical condition.   The reported history at that time was that he had been at home eating ice cream that afternoon on the floor and just fallen over and started having seizures.   The medical records, however, revealed subdural hemorrhaging that had been going on for hours and a depressed skull fracture as well as a few notes, on later days from nurses, about “old scarring” on his body.  An abuse/neglect screen was done on July 3, 2003 and it revealed two risk factors for abuse (“discrepancy between injury and history” and “history of being accident prone”), but inexplicably, no immediate report was made to social services or anyone else about potential abuse.  For seven more days, Man Man remained at Cape Fear without any health care provider suspecting abuse or interviewing the boyfriend (also the lone adult caregiver at the time of the alleged “ice cream” incident).

On the night of July 10, however, the first and still biggest “break” in the case occurred.  Totally by chance (or by Providence for those of faith, including me), Dr. Sharon Cooper, a forensic pediatrician with privileges at Cape Fear and nationally-recognized expert in child abuse – and one of the pediatricians who could have been called in April because her phone number was published in the hospital’s child maltreatment policy —  happened to be visiting the pediatric wing at Cape Fear to check on another patient of hers.  Cooper saw Man Man in his hospital bed in obviously critical condition.  Cooper’s heart went out to the injured boy and just out of curiosity, she asked a nurse walking by whether Man Man was a victim of a motor vehicle accident or some other trauma.  The nurse said no and related the “history” of him falling over while eating ice cream.  Cooper’s eyes widened and she walked immediately to his chart, reviewed the history dating back to the multiple fractures in April, and immediately requested a consult be ordered for the next day because she believed his case was highly suspicious for abuse dating back to April.  Within hours, she had reported to another physician at hospital that she believed there was abuse that had occurred, and that the hospital and doctors had “missed it” in April.  Dr. Cooper never wavered from that opinion and would later testify for some three days at the civil trial as Plaintiff’s principal expert, calling out the very hospital where she still has privileges and practices on a regular basis for professional negligence.[6]

Cooper returned to see Man Man on July 11, 2003 and, over the course of that day, performed a forensic examination of his body and past diagnostic imaging that revealed evidence of over 50 injuries of varying ages, ranging from multiple broken bones to large, deep and suspicious scarring in areas normally covered by clothing, some of which were months old and some consistent with fingernails digging into skin.  Based on that physical evidence of longterm abuse and the undisputed fact that the mother’s boyfriend was the sole caregiver on both hospitalizations, Dr. Cooper contacted authorities on suspicion of abuse by the boyfriend.

Within hours of Cooper’s consult, Social Services was notified, the police were notified, and a protection plan was put in place for other children still in the home.  By 11:30 p.m. that same night, the police had conducted their own initial investigation and the mother’s boyfriend had been arrested and placed in police custody on charges of child abuse.  On July 17, 2003, a multidisciplinary team met at the hospital (including doctors, social workers, and others) and reached a unanimous conclusion that Man Man had been the victim of abuse at the hands of the mother’s boyfriend, and documented that finding in a written report.  Once that investigative machine began rolling after Dr. Cooper’s first report, even more facts came out that began to paint a bigger picture what Man Man had been through and why the failure of anyone to report his case to authorities in April had placed him back in the care of an abuser so as to proximately cause his ultimate catastrophic injuries.

Within a few days of the arrest, it was revealed that the boyfriend was living under an alias, had given a false name to the police when arrested, and had reported to the police that he had given them a false name because he had heard there was a warrant out for his arrest for kidnapping.  Further investigation would lead to the discovery that the boyfriend had a criminal record and was wanted in West Virginia in connection with a drug trafficking ring, for which he would much later plead guilty and serve time in federal prison.  All of this may could have been learned in April 2003 had a report been made then, but it was not.    While the boyfriend protested his innocence in abusing Man Man to the police, he was later convicted of two counts of misdemeanor child abuse, though the trial court in the civil case ruled out of evidence the guilty verdict and any other evidence of the criminal arrest, upon request of Defendants.[7]

At the trial of the civil case, despite its own committee report, the hospital contested whether Ajamu had been abused back to April, and called the boy’s own mother, now estranged from her son, as a witness to say that she was never aware of any abuse.  Testimony of Man Man’s sister, however, supported that abuse had occurred in the home along with the medical evidence.  Interviews with jurors after the verdict revealed that they believed the mother’s account to not be credible, which meant we were able to overcome our client’s own mother’s testimony on a key issue to prevail.

In light of that summary of the facts, one may reasonably wonder why this case was not settled well before trial or at least at trial, and why on earth it took eight years to get to trial.   From that question comes the real answer and facts as to why this case, in the end, was about persistence.

The Trial Court and Appellate Odyssey

The case was filed in May 2005 after our team retained experts in various fields of the standard of care and causation.  The Complaint was pled as a plain and simple “failure to diagnose” medical malpractice action under common law and statutory medical malpractice elements.[8]  Stated simply, “child abuse” is a recognized medical diagnosis with its own diagnostic codes, like cancer, the flu or other diseases or injuries, and we pled that the medical team failed to diagnose and appropriately treat evidence of child abuse in regard to Man Man.  The “cancer analogy” was one that we used repeatedly in depositions and at trial to help explain to jurors several concepts, such as (a) while the providers did not cause the actual abuse (just as doctors don’t “cause” cancer), they are responsible for looking for signs of it and intervening (just like they would if an X-ray showed a mass on a lung, similar to the broken rib in our case); and (b) that it is foreseeable if someone doesn’t diagnose child abuse (just like cancer), one can expect it is going to get worse from the missed diagnosis and inaction.

Despite that “theme,” which we began using early in discovery, and despite obtaining testimony from every health care provider involved that they knew they had a responsibility to look for and report abuse and if they did not, further harm could result, the battle was just beginning.  Throughout the case, a very, very skilled, able and dogged defense team for each Defendant (including lawyers from some of the biggest and most respected firms in North Carolina) fought us on every question, every point, in every deposition and motion.  Motions to compel were filed, numerous depositions got “testy,” and while it was litigated for the most part on a professional level, the case was contested at every stage.  As I told one colleague, the case was like an NBA playoff game – every basket was contested, and the fouls were with purpose.

Discovery was largely completed but still being wrapped up when, about six months or so before a set trial date of July 22, 2007, we received out of the blue a fax for a motion for summary judgment, including a notice of hearing on that motion for the next week.   Thus began an introductory lesson into the nuances of North Carolina procedure, and the politics that accompany it.

In North Carolina, unlike in Georgia, cases are not assigned to a single trial judge for the duration of the case.  Instead, if a motion or trial date comes up, the proceeding is assigned to a judge who is “in the circuit” and hearing matters at the time the matter is raised for hearing or trial.   Also, unlike in Georgia where the Court sets hearing dates, each Superior Court in North Carolina holds civil motions hearings on a weekly basis and the movant on any motion can simply notice it for hearing as little as five days before the hearing date.  This includes any motion, including motions for summary judgment.   All that sounds fine and perhaps even more expedient than our Georgia system, but there’s a twist:  the Courts publish in advance which judge will be available on a particular hearing date, allowing the movant to essentially “pick their judge” to hear a motion.  While we had an outstanding local North Carolina counsel working with us, Bill Britt of Lumberton, even he was mystified by what happened next.

After getting the Defendants’ out of the blue summary judgment motion and a notice of it to be heard just a week later, we advised Defendants that we had a conflict on the hearing date they had unilaterally set (which was true, we were conflicted) and that would like to move it to later date.  We offered 2 or 3 future hearing dates over the course of the next month and a half, and all of them were refused.  Instead, they offered two other dates, spaced greatly apart.  Hmmm, we wondered, what is going on here?   We then went to the published judge lists for the coming calendars and got our answer – Defendants would only propose and agree to have their motion heard on dates where a single judge was listed as the civil motions judge for that week.  We researched WestLaw for opinions written by that judge, and found that she had granted summary judgment for the same hospital lawyer and the same hospital just a few years before (later reversed on appeal), and had a record of favorable rulings for defendants, particularly when represented by one of the main lawyers on the other side.   We smelled some real home cooking going on, but under the rules, and with a trial date bearing down on us in July and a desire to not have delay (a desire that would prove ironic), we felt we had little choice but to move forward with one of their dates, in front of the judge of their choosing, and quite simply believed that our evidence was such that no judge could reasonably grant summary judgment.

We were wrong.  We got a full hearing on summary judgment, presented some two hours of evidence and argument, and the Court took the matter under advisement.   As luck (or Providence for those of faith, including me), the sitting President of the North Carolina Academy of Trial Lawyers happened to be on the calendar the same day in another case and heard the arguments.  After they were over, she came to us and congratulated us on doing a thorough job and expressed her belief she’d be shocked if we lost.

Well, we did.

Less than two weeks after the hearing, we got a phone call from one of the defense counsel stating that he had been contacted by the Judge’s office, that she was granting their motion, and that an order would be forthcoming.  Sure enough, a week or so later, we got a three-line order granting the Defendants’ motion, with no analysis, no reasoning, no findings of facts.   We filed a motion for reconsideration and/or at the least a finding of facts as to what legal or factual basis the trial court had granted the motion.  That motion for reconsideration was also denied without further elucidation.

Stung but undeterred, we appealed.  Before we could even get to the Court of Appeals, though, the Defendants refused to agree what should be a part of the record on appeal, and we had to have a special hearing in North Carolina just to get a ruling on what would be included.  The record was finally completed (after about 6-8 months of wrangling), voluminous briefing was filed (including separate briefs from every defendant), and an oral argument was set.   On May 14, 2008, over a year after the trial court’s order was entered, we traveled to Raleigh and argued the appeal to a three-judge panel, with the assistance of our gifted local appellate counsel, Reggie Gillespie of Raleigh.[9]

On the appeal, ironically, the major case cited against us was Cechman v. Travis, a 1991 Georgia Court of Appeals case which, in broad summary, held that a medical provider has no civil duty to suspect and report child abuse such as to give rise to a civil claim for damages.[10]  In essence, the Defendants argument was (a) that they had treated the broken arm bones appropriately in April 2003 and that, despite their own testimony and the hospital policies, they had no “duty” to look for and report signs of child abuse, and (b) that even if they did have a duty, Plaintiffs could not prove their inaction was a proximate cause of injuries because, among other things, Kegler’s acts of abuse were an intervening criminal cause.

Nine months after the oral argument, on February 17, 2009, we received in the mail an 8-page, unanimous opinion of the North Carolina Court of Appeals panel affirming summary judgment.   We believed the opinion overlooked some key facts (and misstated one other pretty egregiously) and decided to move the same panel to reconsider its ruling.  Our appellate counsel told us that such an effort was “pretty much impossible” and reminded us that to even file the motion for reconsideration under North Carolina rules, we had to get two practicing lawyers in North Carolina to sign an affidavit swearing that they had reviewed our record and the Court of Appeals opinion and opining that the Court of Appeals erred.  Yes, you read that correctly.  To even file the motion to reconsider, we had to convince at least two lawyers to go “on record” in an affidavit saying that appellate judges they might see at Bar events were wrong, sign it under oath, and file it publicly.  Our local appellate counsel told us “you better ask at least five lawyers, and I’ll bet you may still not get two to sign on.”  With his help, we got the case record to four lawyers who agreed to at least review what had happened, praying we’d find two to sign an affidavit.  One of the four was the President of the North Carolina Academy of Trial Lawyers who had been at our original trial court argument.   She agreed to sign, remembering her comment from the original hearing that she would “shocked” if we lost and she still was.  Then, we got some momentum, and amazingly, all three others – 100% of those asked – signed affidavits opining that the Court of Appeals had erred and should reconsider is opinion.

Armed with those affidavits, we poured blood, sweat and tears into a 38-page brief that encapsulated our case once again and all but screamed and begged for justice and a fair and full hearing.  To the shock of everyone involved, on April 24, 2009, exactly two years and one week after the original order granting summary judgment, the Court of Appeals granted our motion for rehearing and allowed Defendants to file a short response brief from each of them.

Then we waited again.  Spring turned to summer, summer to fall, fall to winter.  Another Christmas – the 7th Christmas to have passed since Man Man was injured – passed.  Still no word.  Finally, on April 6, 2010, a new opinion arrived in the mail.  This one was 24 pages long, authored by the same panel, and reached a unanimously opposite conclusion – a 3-0 vote to reverse the grant of summary judgment.  It remains, and I expect will always remain, the most pleasant shock of my professional career.   The North Carolina Supreme Court denied certiorari, and we were back.

Still, delay festered.  It took months for the remand order to be entered, leading to a scheduling conference in the fall of 2010, over three and a half years since summary judgment had erroneously been granted.   At that conference, we pressed for an immediate trial date in early 2011.  Defendants, citing a series of conflicts as long as their arms, plead for a trial date near Christmas 2011.   After heated discussion, the trial court set August 22, 2011 as the trial date, and that would be the date the case was in fact tried.

A mediation was held in March 2012, by court order, with one of the most trusted mediators in North Carolina.   It was a total bust, with only one of four defendants even making a hard offer of any money, and with clear signals sent they believed this was a “deny and defend” case.

Amazed but still undeterred, we went back to work.   We had hoped and expected little additional discovery would be needed (particularly considering some 40 depositions had been taken before the appeal) but both sides ended up naming or deposing additional witnesses and vigorous discovery continued all the way up to a defense rebuttal expert deposition taken on the very last day of discovery, July 22, 2011.   Final trial preparations began in earnest, with Defendants filing some 70 motions in limine between them, and a couple of the defendants’ settled or resolved the claims against them, leaving only the orthopedic surgeon, the hospital and Johnny Kegler for trial.

The Trial (Cliffs Notes Version).

The expected length of trial before it began was 4 weeks.  When all was said and done, it was closer to six.  Our team, knowing it would be a long campaign, chose to enter short-term leases in a group of 4 “corporate” 3-bedroom apartments that were furnished and located about 5 miles from the courthouse in Fayetteville, the home of Fort Bragg.  As it turned out, we were really in a clean and respectable, but definitely Spartan, group military housing, populated largely by buff, oft-tattooed servants in our U.S. Army who were stationed at Ft. Bragg nearby but allowed to live off base due, presumably, to their inordinate numbers.[11]   We moved into to “Kings Crossing Apartments” on Sunday, August 21, 2011.  Our last team member moved out of them on October 5, 2011.  It was over 95 degrees the day we arrived.  By the time we left, we were generally wearing overcoats.

When we arrived for trial, we felt as ready as we ever had been for a trial of this magnitude.  Videotaped depositions had been edited and cut.  An out of state eyewitness that no one had ever been able to find, and who observed that abuse was what happened in April 2003 at the hand of Kegler, was tracked down and worked up by our associate, Matt Wetherington.   Working with Courtroom Visuals of Atlanta (and Dan Codman in particular) and our incredible trial consultant Charlotte Morris of Raleigh, we had developed demonstrative “boards” that brought home visually our key themes:  that “red flags” were missed, that policies were ignored, that the injuries to Man Man were simply inconsistent with the history that the hospital accepted without a question.

None of us had ever met our trial judge, Tom Lock, as he was assigned to the trial less than two weeks before it began.   A bald, stern-appearing former prosecutor who specialized in death penalty cases before taking the bench, Judge Lock did not, on the thin surface, seem to be what the doctor ordered for a Plaintiffs’ case.  But we learned looks can be deceiving, and when juror selection began on August 22, 2007, Judge Lock proved to be patient, willing to listen, and willing to strike jurors for cause who expressed bias or worked for the hospital.  He was, at all turns thereafter, a painstakingly fair judge, willing to rule definitively, quickly, and almost always in a way that no one could really contend was error.

Richard Griggs and Charlotte Morris had spent literally weeks refining an approach to voir dire that was at first perceived by us as heretical and crazy, then just a bit unorthodox, and finally something we embraced as genius.  Relying far more on questions that “get to know” the jurors and their views on broader issues of family and policies and responsibility than trying to “pre-try” the case, Richard began his voir dire on Monday.   When Tuesday morning came, he was still talking with various panels, brilliantly and patiently executing the plan he and Charlotte devised, while the defense counsel looked quizzical and goaded us at breaks that we were “getting nowhere.”   We “pressed on” – for the rest of the week.   We came back the following Monday and kept going, batting jury panels back and forth with the defense until, at long last, on the sixth day of jury selection, the jury of 14 (12 jurors, 2 alternates) were set.   During the course of our jury selection alone, they tried a first degree murder case in the courtroom next door, start to finish.

When the smoke cleared, we had a jury that was a diverse mix of gender, race and age, including everything from a white male radiology technician (that Charlotte, thankfully, urged us to keep and would become one of the key advocates for us on the jury) to an African-American male West Point graduate in engineering who proclaimed he liked to “preach the gospel in parking lots or wherever folks would listen” to a caucasion female former owner of a repossession company who dressed to the nines, every day.   And that only scratches the surface of those folks that, for the next month, we would observe and speak to across the railing everyday.

There is no way to go into a blow-by-blow of the entire trial, nor would anyone want or expect that, but one major “break” bears mentioning that colored the entire trial.   Oddly enough, it happened on my birthday.   As noted, we began the trial with the orthopedic surgeon in the case, who was represented by three partners from two law firms, one of whom was a bull in a china shop – aggressive, condescending, skilled and altogether aggravating.  On the third full day of trial, we had called our star expert, Sharon Cooper, and I was in the midst of qualifying her as an expert when she, inadvertently, made a reference to doctors’ malpractice insurance.   She was not referring to any doctor in our case, and the Court later found the mention to be unintentional, but a fire was lit in the courtroom and the orthopedic surgeon’s bull, at the next break, made a boisterous objection and motion for mistrial that the Court took under advisement until lunch.  The jury left for lunch, not really aware of any controversy because the matter had been addressed outside their presence.

Over the lunch break, we were concerned, deeply, that eight years of work to a trial date was about to evaporate in a life-sucking mistrial.  I walked out of the courthouse and was met by the much “nicer” of the orthopedic surgeon’s attorneys.  We talked, each made some cell phone calls, and by the end of lunch had reached an agreement to resolve our claims with the orthopedic surgeon and dismiss her, a deal which included them withdrawing their motion for mistrial and other mutual consideration.  We announced the sudden agreement to the judge, and when the jury returned from lunch, the orthopedic surgeon and her battery of lawyers (and truckload of trial exhibits and boxes) were simply gone, like magic.  When the jury came back in, the Court simply stated that “Defendant Jones is no longer a party to the case.”    And we continued with trial, new wind in our sails having dodged what would have been a devastating blow and now focused on the hospital directly, as we had long thought the focus would ultimately be.

Late one afternoon early in the trial, Judge Lock called us to chambers and strongly encouraged us to talk settlement.  Let me rephrase:  he directed me to go immediately to the risk manager for the hospital (who was present in the courtroom) and have a discussion to settle the case.  I did as directed, and asked the risk manger if we were going to get anything done.  I was told by the risk manager:  “as I see it, my worst possible day is a hung jury, and I don’t think you’ll get that.  We may pay you something in six figures, but that would be it.”  My response:  “well, sir, if you really feel that way, we have nothing to discuss.  This is why they build courthouses.”  And I walked away, not to speak to him again until, during jury deliberations, when the jury asked for a calculator.  Soon after that, I looked to him, he motioned me over, and we began to put in place the hi-lo settlement agreement that would resolve the case shortly after the jury’s verdict.

Trial continued, and we felt good about the reactions we were getting from jurors and the evidence we were presenting.  Richard was dynamite on crosses of their nurses, Tim DiPiero put up one of the most moving set of damages witnesses I have ever seen, and Bill did a cross of their main expert that went from downright humorous at points to some devastating “rifle shot” questions that really damaged the strength of the defense case.   On the morning of closing arguments, one of our team members learned he suffered a devastating personal loss of a family member the night before.  All of us were distracted, but somehow also motivated by the emotion of it all.

My final words to the jury were:

“There’s a moment in trial that resonates more than others.  Mine happened in Moo’s testimony….We asked Moo, talking about Man Man and Moo said, you know, [Man Man] doesn’t like to be in the dark.  Ladies and Gentlemen, your verdict has a chance to shine light into that child’s life.  And while in the future, he will certainly at times be in the dark, he will never be in darkness again.  Shine light on Man Man, ladies and gentlemen, with a verdict that delivers justice.  Thank you so much.”

Despite a fantastic closing from the defense, we felt good when the case went to the jury after Judge Lock gave a very evenhanded and fair charge of law.

Like everything else in the case, though, it took time to get a verdict.  While the jury was out for over four days, it was a roller coaster ride.  After the jury asked its “calculator” question we were able to negotiate a hi-lo agreement and get it documented and optimism was high for a good verdict, but then uncertainty settled in.  No verdict came, then a question came that they wanted to see evidence from our expert (in North Carolina, evidence does not go to the jury unless requested, and then only by approval of the judge).  He sent it out.  Then they wanted to see a transcript of testimony from another witness.  The judge allowed it.  When the jury came in to be dismissed for lunch or evening break, they were stonefaced and a mystery, though when we saw them in the parking lot later, they looked “happy.”  (later, one of the jurors told me that they were intentionally stonefaced, to keep us guessing).  The judge allowed both sides to talk to an alternate who had been dismissed and she told us her “teammates” on the jury were very deliberate and it would take awhile.  From her we knew we were in pretty good shape, but had some potential holdouts.  It turned we did have a holdout – the foreperson, the engineer from West Point.   Finally, the last transcript that was sent out convinced him we had proven his case, and he signed the verdict form in the amount of damages that they had decided four days before.

At 3:42 p.m. or thereabouts on October 4, 2011, the jury entered a verdict of $20,000,000 for Man Man, and $4,870,000 for his father, a total of just under $25 million.   While the hi-lo agreement was for substantially less than that amount, the “high” was enforceable and we walked from the courtroom knowing that Man Man, who had lived in barely tolerable conditions for over eight years, would have all the care and all the comforts he would need, and his father would at last have financial relief from the pressure that had been on him for about half of his adult life.   There was “light” again in their lives.

That was fantastic, and our goal of justice was obtained.   But a week later, we found out we had done even better work than we imagined.  Our expert, Sharon Cooper, had gotten an email as a physician with privileges at Cape Fear from hospital administration. It informed her that a new child-abuse team had been established at the hospital, and that from henceforth, it would be enforced that every child would receive an abuse-neglect screen who comes to the hospital.

The jury’s verdict spoke, just as we had asked it to do.  And justice came not just for our clients, but for every child going forward who walks through the doors at Cape Fear Valley Medical Center.   Persistence alone is omnipotent.

 

[1] Tim DiPiero, Josh Barrett, Beth Kavitz and their staff at DiTrapano, Barrett and DiPiero, PLLC in Charleston, WV, including their former partner Dante DiTrapano, originated the case and were our close teammates all the way through.   Bill Britt and Reggie Gillespie, mentioned further herein, were also part of that team.  In our office, Bonnie Young was our paralegal extraordinaire and by time of trial, we were ably assisted by our associate, Matt Wetherington.

[2] Claims were also brought against an orthopedic surgeon, treating pediatrician and treating radiologist, but each of those claims were all settled or resolved in the three months leading up to the trial of the case, including one on the Friday before trial and one on the third day of evidence.  The case proceeded to verdict only against the hospital and Johnny Kegler, who is discussed further herein.  Prior to verdict, the hospital never made an offer to settle that was even equal to the past medical bills in the case.

[3] At trial, the hospital attempted to repeatedly suggest that there was no fracture to the rib, even though the radiology report unequivocally noted its presence and the radiologist, a former Defendant, had confirmed under oath she saw it and it was there.  For various strategic reasons, neither side called the radiologist as a witness at trial.  Interviews with jurors after the verdict confirmed that they believed, with little question, the rib was fractured and “missed” by the health care team.

[4] Numerous medical treatises referenced during the evidence at trial reflect that “posterolateral” rib fractures are, because of there location on the back but lateral side of the rib cage under the arm, more suspicious for abuse because they are unlikely to occur in a normal fall or movement.  They are instead more consistent with someone striking a person with a blunt object.

[5] Man Man’s natural father and natural mother never married, and the mother took Man Man and moved to North Carolina with her boyfriend in late 2002.  During the time period of April 2003 and following, his father was in Charleston, WV seeking to finish his college degree, which he accomplished in May 2003.  Man Man’s father was also the 2000 NCAA Division I-AA National Basketball Player of the Year at the University of Charleston, and as of the summer of 2003, was trying out to play professional basketball.  Immediately upon learning of Man Man’s brain injuries in July 2003, “Moo” Gaines gave up his basketball dreams to care for his son, obtained full legal custody of his son, and it was undisputed at trial that “Moo” has been an heroic, selfless and loving caregiver of his profoundly injured son for the last 8 years.  Having gotten to know and love Moo Gaines, I believe there will a special place in heaven for him for his dedication and love to his son.

[6]  As an obvious strategic ploy, during Cooper’s testimony, the hospital had colleagues of hers at the hospital come in and sit in the back of the courtroom, and even asked her to “single out” the names of some of them she recognized, apparently thinking it would lead Cooper to retreat from her opinions.  Dr. Cooper did not, and her resiliency in the face of obvious “peer pressure” remains one of the most inspiring things I have ever witnessed in a courtroom.

[7] Johnny Kegler, a/k/a Jason Willis, never answered the Complaint, was in default, and never appeared in the courtroom, giving the hospital a true, literal “empty chair” to attempt to blame.  Judgment has been entered against him and, should he ever procure assets, will be subject to collection from him because North Carolina is a true “joint and several” liability state.

[8] There is a child abuse reporting statute in North Carolina, as there is in all 50 states, but we consciously chose not to plead the case as a negligence per se violation of the statute because in a few jurisdictions, including Georgia, courts have rather inexplicably found that a reporting statute, while creating a duty to report, does not create a civil cause of action if violated.

[9] The North Carolina Appellate Rules of Appellate Procedure are, in my view, the most complicated game of “Simon Says” ever devised, including so many procedural traps for the unwary they cannot be numbered.  Without Reggie Gillespie as our navigator, we would have never made it to Raleigh to even argue the motion, and his contibutions on the appellate side cannot be understated.

[10]  If any judge or legislator reads this article, I beseech them, if ever presented with the opportunity, to judicially or legislatively revisit and overturn the implications of Cechman.  Much has been learned about child abuse as a medical issue since 1991, and in this author’s opinion, Cechman may have been decided appropriately on the evidence in that case, but the broader holding against claims for failure to diagnose child abuse are outdated and simply inconsistent with medical literature and medical malpractice concepts.

[11] My bedroom apartment, for example, overlooked a tennis court on which, at 5:30 a.m. each morning, a rather vocal “boot camp” occurred.   Oversleeping was not an issue.