A Union County jury awarded a total of $46.5 million in damages Thursday in a lawsuit over permanent disability suffered by a child born in 2014 at the Ouachita County Medical Center
The lawsuit said Kara Smalls,
child of Karl and Candice Smalls
, was delivered by C-section June 4, 2014. It alleged that the family physician, Dr. Johnathan Lewis,
failed to follow up properly on a blood test that indicated a high risk of extreme jaundice, a life threatening and brain damaging condition that is treatable. The mother had a previous child with a similar condition.
According to the suit: Though a nurse had also noticed evidence of slight jaundice, the mother and child were discharged with instructions to return in 10 days, but with no instructions about jaundice.Three days after discharge, Candice Smalls reported that her newborn was lethargic, crying shrilly and seemed in pain. Her phone message to the doctor's clinic was returned by a nurse who advised the mother to call back the next morning. She called multiple times and got to see Dr. Lewis later in the morning of June 12. He drew blood, noted the child was jaundiced and sent the family home. When he learned the blood test results later, at 12:28 p.m., he called the family to take the child to the hospital about 1 p.m. They arrived at 1:43 p.m. and shortly after 2 p.m., light treatment began that was intended to reduce the high bilirubin levels. At 4 p.m., the child was transferred to Arkansas Children's Hospital. As a result of prolonged exposure to high bilirubin levels,however, the child suffered irreversible brain injury. She must use a wheelchair and is expected to require expensive care in the years ahead.
The lawsuit alleged negligence by the doctor and medical center staff in, among others, ignoring the high initial reading and in failure to do a repeat blood test before discharge and in subsequent treatment by the doctor's clinic.
Here's the lawsuit.
The case, originally filed in 2015, was transferred to Union Circuit Court for trial, which began Feb. 27 and ended Thursday with the plaintiff's verdict.
Eleven of the 12 jurors signed the verdicts that Lewis was negligent and all 12 agreed the medical center had been negligent, with 85 percent of the liability placed on Dr. Lewis and his employer, a clinic owned by Baptist Health, and 15 percent on the medical center.
The jury awarded $43 million in damages to the child, who'lll require intensive medical treatment the remainder of her life. It awarded $3.5 million in damages to the parents to support the children. Nine of the 12 jurors signed the damage awards.
The case had a long process to trial, with an extensive paper trail on witnesses, delays and arguments over what expert witnesses would say about the life expectancy of the child. Defendants in the case in addition to the doctor, his clinic and the hospital were several insurance companies, but by order of the court, the jury was not aware of the insurance companies' participation. That order said any judgments against parties claiming charity immunity — the hospital and clinic — would be awarded against the insurance companies if a subsequent hearing determines they are entitled to the immunity.
The defense argued that doctors and hospitals in Arkansas weren't subject to meeting national standards of care for this condition, a standard that plaintiffs said the defendants had failed to meet. They argued that newborns in South Arkansas should benefit from a national standard, nothing less.
I've been unable to reach attorneys about the likelihood of appeal (high, I'd guess) and what arguments were made as to damages to determine what the jury might have considered in terms of medical damages and so-called non-economic damages. Jim Lyons of Jonesboro and Stuart Ratzan of Miami were lawyers for the plaintiffs.
Under a constitutional amendment the legislature has put on the ballot for voters in 2018, negligent treatment of a newborn would be limited as to non-economic damages to $500,000 in this case, because the child has no earnings potential. The amendment also limits attorney fees in such cases.
UPDATE: I spoke briefly with Ratzan shortly before he boarded a plane in Little Rock. He'll call back with more details about the evidence he presented on damages suffered by the family, but said likely $10 million of the award was "non-economic." He said he'd presented evidence that of some $60 million in damages in lost earning potential, required care and other factors, so he didn't view the verdict as excessive, though it's likely one of the largest in the state's history.
"It proves how important these cases are," Ratzan said. He emphasized he didn't mean about money, though a disabled child is a sympathetic plaintiff. But he said the ability to bring cases to trial is important in providing incentives for safety and good care, to which "we're all entitled." The so-called tort reform amendment wil discourage lawsuits through low damages and attorney fees and thus discourage cases that could produce good for all.
"If they don't get filed, we're all at risk," he said.
Lyons provided more detail of the evidence presented to the jury on which the damages were based. The plaintiffs' experts estimated a life care plan for the child could cost, in a mid-range of various options, $33.7 million. The child’s lost earnings, based on what she might have been expected to earn had she not been disabled and achieved at the level of her parents based on their own histories, was put around $3.2 million. So that left about $9.5 million in her damage awards for pain, suffering and emotional loss — the so-called "non-economic" cost.
The child, Lyons said, is normal “cognitively.” That is, she is aware of her condition, trapped in a body she can't control. She cannot control body movements and is confined to a wheelchair. She is undergoing intensive therapy in hopes of gaining some control. She cannot speak. Ideally, she might progress to the point of being able to use something similar to Stephen Hawking, where she could use a computer communicative device.
The money for the parents is in a trust fund to use for additional care and therapy. The family now lives in Montana. The father is in the Army Reserve, working in anti-terrorism programs. A full range of services are not available at their Montana home, for example, so a specialist makes regular visits from Seattle to work with the child.
Lyons said the defense relied on the ability to apply a lower standard of care than national standards. The doctor didn’t, for example, follow a charting strategy on blood testing that would have illustrated the increasing risk of problems for the child in the hours after birth.
The jury could have decided that was sufficient in Arkansas, but it didn’t.
Lyons said he and Ratzan had devoted thousands of hours of the case and an enormous sum had been invested in preparation – expert testimony, focus groups on arguments. In a case like this, even under a tort reform amendment, some significant attorney fees would be possible at a cap of a third of recovery because the life care and lost economic damages could still be used to compute the fee. But the proposed amendment would place a $500,000 limit on non-economic damages that reached almost $10 million here.
Lyons noted that, in a case without significant life care costs or death, much lower potential damages possible that contribute to an attorney’s decision not to risk a large sum of money and significant hours in a case with merit.
This, he said, will encourage health providers to “not follow safety rules and not follow guidelines and provide less than necessary medical treatment.”
ANOTHER UPDATE: law firm news release
ARKANSAS JURY ENTERS $46.5 MILLION VERDICT FOR TODDLER IN MEDICAL MALPRACTICE CASE
MIAMI - March 10, 2017 - In a two-week trial, a toddler, Kara Smalls received a jury verdict of $46.5 Million in compensatory damages against a family doctor, Dr. Jonathan Lewis, employed by Ouachita Valley Family Clinic, a Baptist Health Affiliate and also against Ouachita County Medical Center. The plaintiff was represented by Stuart N. Ratzan and Stuart J. Weissman of Ratzan Law Group, P.A., Miami, FL. Ratzan Law Group was assisted by Jim Lyons of Lyons & Cone, P.A., Jonesboro, AR and Kimberly Boldt and Mario Giommoni of The Boldt Law Firm, Boca Raton, FL. The verdict was entered on Thursday March 9, 2017.
Kara Smalls' parents alleged that medical negligence and failure to properly manage and treat newborn jaundice in their baby immediately after her birth in June, 2014, led to the development of kernicterus in baby Kara Smalls' brain.
The untreated jaundice led to permanent disability and irreversible brain damage. As a result, the child is locked into a body that will never work properly. She cannot walk, talk, feed herself, or care for herself independently, yet she has normal cognitive function. She can think, feel, and emote like a normal child. She will likely be bound to a wheelchair and adaptive walking aids for the rest of her life. She will also require 24 hour care and supervision as well as intensive medical treatment for the remainder of her life.
Kernicterus is a serious condition that can lead to significant brain damage and in severe cases, death. It is imperative for medical personnel to be able to detect the telltale signs of jaundice and treat it promptly. Newborn jaundice is easy to diagnose with a pinprick of blood and simple to treat with phototherapy lights.
Kara Smalls' parents alleged at trial that the doctor and hospital ignored generally accepted national patient safety guidelines for the management and treatment of newborn jaundice. The national patient safety guidelines were developed in 2004 and 2009, yet the doctor and hospital chose not to adopt or follow the national standard of care. The defendants ignored the high initial bilirubin reading as well as the jaundice in the first 24 hours of the baby's life, yet chose not to do any repeat blood testing and not administer phototherapy lights before discharge. After the baby was sent home, her bilirubin blood level got so high that it penetrated her brain and caused profound brain damage.
"The defendants argued that South Arkansas doctors and hospitals are free to ignore the patient safety rules and do what they want; the defendants argued that the standard of care is lower In South Arkansas than the rest of the country," said Stuart N. Ratzan, lead trial lawyer for the child.
At trial, Ratzan countered that any community where doctors and hospitals deliver babies, and have available to them the technology to test for bilirubin and to provide phototherapy lights, is a community where the patient safety rules apply. The defendant hospital and the defendant doctor in Camden, AR did indeed have the necessary equipment.
The plaintiffs argued, therefore, that the defendant doctor and defendant hospital in Camden, AR, like everyone else in the United States who treats newborn babies, were required to follow the prevailing patient safety rules. The plaintiffs argued that when doctors and hospitals break the patient safety rules anywhere in the United States, including South Arkansas, they should be fully accountable for the consequences.
"We are encouraged by the jury's commitment to the patient safety rules for South Arkansas, and we are thrilled that the jury devoted itself to a verdict that would provide for Kara Smalls, age 2 1/2, for the rest of her life. Newborn babies need and deserve competent medical care in all of the United States, whether it's Ouachita County, AR, Pulaski County, AR, Miami, FL, or anywhere else in the country." Ratzan said.
The jury found defendants Jonathan Lewis and Ouachita County Medical Center negligent for violating the national guidelines.