Disabled teenager settles lawsuit
Disabled teenager settles lawsuit
Doctors fearing large judgment resolve case
By Diane Hirth
DEMOCRAT CAPITOL BUREAU
Ten-year-old Ahmad Jamal Jones has no pulse and isn't breathing when Havana police officer Brett Ingram races to the grassy roadside where the child landed after he and his bicycle were rammed by a pickup, and his body was tossed 40 feet in the air.
"A lifeless facial expression with leaves and blood coming out of his mouth; it's an image I'll never forget," recalls Ingram.
The officer immediately uses an "ambu bag," a device to pump air into the boy's mouth. As a bystander takes over the pumping, Ingram continues chest compressions.
When EMS technicians arrive, "He had a pulse, a weak pulse, but he's still not breathing on his own," Ingram says.
Seven and a half years after the noontime Dec. 20, 1996, accident, Jones can talk, does well with schoolwork, follows baseball and football and writes poetry.
Yet a medical-malpractice lawsuit filed against seven doctors and Tallahassee Memorial Hospital alleged that failure to quickly diagnose Jones' spinal-cord injury and administer a steroid led to his permanent paralysis.
Today the 17-year-old is a quadriplegic, ventilator-dependent, his life bounded by a wheelchair.
"He's just as smart as he can be, but he's laying on his back," said Jones' attorney Dexter Douglass.
Calculations of monetary risk eventually trumped most of the health-care providers' aversion to settling the case, though they didn't think they did anything wrong.
In recent months, Jones' attorneys settled the medical-malpractice case against four doctors and Tallahassee Memorial Hospital for more than $4 million (the exact amount is unavailable because of confidentiality attached to one settlement).
Citing the legal confidentiality restrictions, Jones' attorneys declined to talk further about the case. Efforts to contact the injured teenager and his mother were unsuccessful.
None of the health-care defendants ever was found negligent in court.
The trial started May 30 and ended prematurely June 18, when all allegations were dropped against the three radiologists who were the last ones at the defense table.
A complex malpractice case
The Legislature and Gov. Jeb Bush struggled for months to reach a compromise on reforms to reduce soaring medical-malpractice premiums and keep Florida physicians from shuttering their practices.
After two failed special sessions on the contentious issue, a consensus was announced Friday on limiting the liability of ER doctors and emergency rooms and providing new caps on "pain and suffering" damages that can be collected from all physicians and health-care entities.
The tangled nature of medical malpractice, which involves doctors, attorneys, insurers, injured patients and citizens' health-care access, made the issue difficult to resolve, but lawmakers return Tuesday for another special session in which they are expected to pass their agreement.
The 7-year-old case of Jones was complicated, too. The defendants were an ER doctor, a general surgeon, a pediatric intensivist, a neurosurgeon, three radiologists and one nonprofit hospital. Two of the Tallahassee physicians have died since treating Jones, yet one's estate and the other's employer, the hospital, still were potentially liable.
Jones and his mother, Teresa Byrd, who moved from Gadsden County to Miami-Dade County, hired three attorneys, their main counselor being Scott Newmark. Newmark belongs to a Fort Lauderdale practice so prominent that its key partner, Sheldon Schlesinger, was part of the legal "dream team" that represented the state of Florida when it successfully sued tobacco companies for billions of dollars in 1997; Schlesinger did cross-examination during the Jones trial.
Jones' lawyers employed multiple everything - multiple defendants, multiple motions to the court, multiple records and witnesses, experts and otherwise. At the last minute, they even tried changing the trial date and location, alleging the fierce legislative debate over medical-malpractice reform in Tallahassee would taint the proceedings, but that tactic failed.
Vast lists, including one of 220 potential trial witnesses, fill five boxes of the court record.
The stakes were high: Any paralyzed person, much less a child, is viewed as an emotionally charged medical-malpractice case for a jury, whatever evidence is produced.
Proclaimed life-care specialists who evaluate the costs of long-term medical needs, and lost wages, of someone such as Jones pegged his potential damages as $30 million to $40 million. That didn't include potential noneconomic "pain and suffering" damages, often not specified until a trial's closing arguments.
And a Florida physician with a major malpractice settlement on his record, notwithstanding that no fault is acknowledged, may find it harder to get a malpractice policy, especially an affordable one.
"Even if you feel there's very little risk of losing as a defendant, a 10-percent risk of losing $40 million does put tremendous pressure on defendants," said attorney Scott Mitchell, who represented both the neurosurgeon and TMH.
The emergency response
Dr. Eliot Sieloff, the general surgeon who later would be sued, responded Dec. 20, 1996, to a request to help a seriously injured child, though he was not on call for the emergency room that day.
"Now, even now, if I saw the same child, I would not do a thing differently," the surgeon said of decisions and care he had to render in minutes. "My job is to figure out if a child's going to die and fix that. ... I didn't have 45 minutes or seven years to reflect on all the records."
Jones was comatose and unresponsive when he arrived at the ER about 40 minutes after the accident; he was intubated (inserted with a breathing tube) "or he would have died in minutes," Sieloff said.
By about 1 p.m., Jones was in the operating room, "a pretty amazing feat," Sieloff said.
According to Sieloff, the patient's blood pressure was dropping (there was time for initial X-rays of the neck, which showed no fracture or dislocation), and "it was not a difficult decision to make. ... If he's bleeding internally and continues to bleed, you're out of the window of opportunity."
But no abdominal bleeding was found, and Jones was given a CT scan (computerized tomography that provides multiple X-rays) of the head afterward that showed evidence of what Sieloff describes as a closed head injury, but no fractures. Jones, moved to pediatric intensive care, was evaluated by the pediatric intensivist, Dr. Thomas Truman, and the neurosurgeon, the now-deceased Dr. Dana Vogter.
"We marshaled all the resources we could," Sieloff said.
Jones started responding to commands about three or four days later but couldn't move his arms or legs, Sieloff said. A CT scan of the spinal cord was normal, and eventually he was given a tracheotomy to ease his breathing, Sieloff said.
On Jan. 6, about two weeks after Jones' accident, he was given an MRI (magnetic resonance imaging) of the spine, which showed contusion (a bruising) of the spinal cord where the base of the brain and the first cervical bone of the spinal cord meet, Sieloff said. There was no evidence of a blood clot at that site, said Sieloff and the radiologists' attorneys, a point later disputed by the plaintiffs' attorneys.
There was no way to safely do the MRI earlier, because transporting Jones to the only available MRI two blocks away from the hospital would have been risky while Jones was intubated before the tracheotomy, Sieloff said.
Watched by the neurosurgeon, Jones eventually became alert and could converse but still couldn't move anything else, Sieloff said.
Jones was released a few weeks after the accident to a rehabilitation facility, came back to the hospital with pneumonia a few weeks later, and was released again from the hospital in January 1997.
The mother at the time never complained about her child's treatment, Sieloff said.
In late 1998, about two years later, the lawsuit was filed.
The long process of litigation
Sieloff describes a long period of unsettling limbo - "reading and re-reading depositions at 1 a.m., in the morning" - as the process dragged on for years through depositions and pre-suit discovery.
"Are they going to take my house? Are they going to take my practice? Am I going to have to leave Florida because I can't practice here anymore, and I still don't know what the problems are," he said of that time.
Not until 2002 at mandatory mediation did specific allegations of negligence surface.
"It made me angry, very angry," said Sieloff, who operates on more than 1,000 patients a year and whose work week sometimes stretches to 100 hours. "Six years of 'discovery,' of going over the records ... and they have the benefit of hindsight . ... In retrospect, it's easy because you know what the outcomes are; we face making decisions on a limited amount of knowledge."
Jones' key attorney, Newmark, did not return calls requesting comment for this story. However, a 43-page document filed with the court by Newmark in November 2002 spells out allegations, including:
• The emergency-department nurse failed to initiate measures to prevent Jones' deterioration and failed to institute cervical spine policies and protocols, including administration of the steroid methylprednisolone within three to eight hours;
• TMH, and the ER nurse, failed to use the multi-system trauma alert that is hospital policy, despite Jones' meeting the criteria;
• The ER nurse failed to properly manage the patient's airway, depriving him of sufficient oxygen to provide an adequate blood supply to the spinal cord;
• Technicians who moved Jones were unaware of spinal injury and failed to maintain strict immobility of Jones so as not to compromise his spinal cord;
• A blood clot that caused compression on Jones' spinal cord was undetected because of negligence, preventing immediate surgery to relieve pressure.
"Had the trauma alert been called, enough physician input would have existed to be able to evaluate the patient from a perspective of various medical disciplines, and they would have come to the conclusion that spinal cord injury was probable, and that it needed to be worked up and treated," the plaintiffs' document states.
However, Sieloff said all the physicians made the right decisions, because the injury causing paralysis was undiagnosable early in the case, and administration of methylprednisolone, the steroid in question, would have been experimental on a child, may not have helped and could present problems to a patient with a closed head injury. He said basically the treatment for this head injury was to wait and see how recovery progressed.
Alternate juror Marilyn Hannick said she appreciates how tough emergency situations are on doctors, who are expected to make lightning-quick, life-saving decisions.
But she said some fellow jurors cried when they saw a video of Jones' restricted life.
"It's hard not to feel sympathy for a child injured like that," Hannick said. "I guess I was on the more conservative side. I feel he should be taken care of, but his mother shouldn't become rich because of it."
Her overall judgment on the case? "I thought the witnesses for the doctors and hospital were more qualified and impressive than the witnesses for the other side," Hannick said. But without hearing all the evidence, she can't say for sure what she or others on the jury would have concluded: "It was complicated. We may not have been able to agree on anything."
'Shifting money around'
The way out of this thicket of arguments over alleged medical negligence was money.
In mediation, Jones and his mother went from requesting damages of $30 million to $11 million, basically the insured limits of all the defendants. But nothing was resolved there.
Sieloff had no desire or intention to settle, but he eventually did.
He agonized over the decision, the effect on his practice and his ability to get future insurance with the black mark of a major settlement on his record (he has settled another case for $40,000). But his attorney Douglas Jones advised him that he needed to write First Professionals Insurance Co. and say he had a strong desire to settle, or else he, not the insurer, would be liable if he went to trial and the jury ordered an "excess verdict" beyond the policy limits of his coverage. Sieloff, 42, in practice for 11 years and earning $250,000 a year before taxes, had to think of his future and his wife and two children.
"I essentially had to demand my insurance company settle this case. I didn't want to settle," said Sieloff. "I wanted to say, 'Hell no.'"
By now the case "is not about medical malpractice, it's shifting money around," he said.
Sieloff and his practice, Tallahassee Surgical Associates, settled for $1 million.
Of that million dollars, about a fourth - $240,954 - goes to the injured child. The June 18 settlement order from Judge Oliver Green provides $250,000 for attorneys' fees and $241,099.45 for attorneys' costs (with most going to Schlesinger's firm), plus $240,954 toward a Medicaid lien; $16,003 to the state's Children's Medical Services; and $10,989 to the Florida Department of Health's Brain and Spinal Injury Cord program.
An additional confidential settlement with TMH, which includes any liability for deceased ER physician Larry Strongoski, was made around this same time.
"Many of these cases settle. ... It's generally safe to say more cases settle than go to trial," said Jesse Suber, attorney for TMH, who said he was not at liberty to reveal the terms of its settlement.
At this point, three weeks into the trial, the suit was dropped against the remaining defendants, radiologists Drs. John McNair, Sergio Ginaldi and Donald Hansard and Radiology Associates of Tallahassee (whose offer to settle earlier was never accepted).
The plaintiffs "threw the kitchen sink up on a wall to see what would stick," said the radiologists' attorney Richard Collins. "We paid nothing. I think it was a good decision to stand up for their integrity and belief they did nothing."
On June 18, the trial and the case were over.
Other defendants, Truman and the estate of Vogter had settled earlier, March 11, for $1 million and $2 million respectively. Jones won $754,820 of that amount; his mother received $91,611. The plaintiffs' attorneys collected $750,000 in fees and $555,787 in costs (again with the bulk going to Schlesinger's firm). A Medicaid lien of $846,431 was paid, plus $800 to Children's Medical Services and $549 to the Brain and Spinal Cord Injury Program.
There never was any specific award for noneconomic "pain and suffering" damages, as in virtually all settlements.
Jones' money now is in an irrevocable disability trust fund, administered by a trustee, attorney Don Hinkle. The trust fund as approved by the court invests most of his settlement in an annuity, provides regular payments and can be spent on a variety of measures to help Jones, including treatment, special equipment, educational tutoring, rehabilitation, a residence, compensation for caregivers and vacations.
Under state and federal law, a trust fund for a disabled person does not prohibit receiving public assistance, such as Medicaid.
"They're buying a home suitable for him and a vehicle where he can be transported places," Douglass said. "He's so much better off with this."
As for Officer Ingram, the first one to breathe life back into a boy he found curled in a fetal position, he wanted nothing but to help.
He was subpoenaed for the trial, but no one ever thanked him.
Contact Capitol reporter Diane Hirth at (850) 599-2243 or email@example.com.