Repairing a Heart, and Damaging a Brain

This case involved a two-year-old child who was operated on at Albany Medical Center Hospital. His father was a physician from India who was in training at Albany Medical Center as a resident in anesthesiology.

His son had been born with a heart defect called Tetralogy of Fallot. Children with this condition need to have a heart operation to have the blood flow in the heart revised. This child had managed to get to the age of two, but as he became more active, he was becoming short of breath very quickly and began showing other signs of inadequate blood circulation.

Given that the father was in training at the hospital, he consulted with the cardiac-thoracic surgeons at the hospital and was assured by the chief cardiac surgeon and the anesthesiologist that the child would receive the best of care. The father then agreed to have his child operated on.

The surgeon did an incredibly good job. He repaired the heart in the standard way for that kind of complex defect. But after just a few days it was clear that the child had suffered irreversible brain damage.

The distraught father shortly thereafter retained medical malpractice counsel. An outstanding attorney, E.S. Jones, Jr. was hired to represent the family. This lawyer, two years earlier, had represented another Indian family who had a family member (a resident in training at Albany Medical) die while under anesthesia. He had produced a very substantial settlement in that case, so this client had every reason to believe that he would be able to produce a satisfactory award to cover the needs of his child.

The attorney worked on the case starting in 1981 and yet in 1994, the case was still lingering in Albany County Supreme Court. He had the medical records reviewed by three of the top cardiac surgeons in America. Yet none of them could determine why the child had suffered brain damage. Jones had deposed all of the doctors and technicians who were involved in the matter. This, too, failed to shed any light.

During this time, the father moved to Ohio and the child was placed in a Lutheran Home, which provided generally excellent specialized care for children who have such needs as this child. This was a remarkably well-run institution, but such care came at a substantial cost.

When the client contacted me, he told me that after 13 years of litigation he was ready to either hire new counsel or else throw in the towel. The hospital had made a $400,000 nuisance offer to settle the case, but of course, he was not going to accept such a miserly amount given the profound brain injury from which his son was suffering.

My sense was that there was a case here that needed to be dug out. I quickly reviewed Jones’s file and had a brief discussion with him. Given that he had spent 13 years and a considerable amount of time on this case, I made an arrangement with him. If there was any award, I would pay him a fee on the first $400,000, but any money in excess of that would be part of my fee.

My partners thought I was crazy for taking this case. They made their feelings clear to me.

In contrast to the teamwork with which we normally worked our cases, for this one I was completely on my own.

I visited the child at the Lutheran Home. The boy was now 15 years old but had the brain of a two-year-old. He was a tremendous athlete—could swim underwater, climb the walls with his fingertips, and do trampoline exercises—but when he saw his father’s tie, he would try to bite it like a toddler.

The family had an older daughter who went on to become an astrophysicist and was first in her college class and in her graduate studies. But the younger brother, tragically, would never grow up to realize his full potential.

I began to immerse myself in the medical literature on the subject. My goal was to master information about the techniques used in the process of repairing the kind of defect the child had, during the surgery he had undergone. The leading medical literature in the case was written predominantly by doctors from Boston Children’s Hospital, so I was determined to hire someone from there as an expert witness. Most of the doctors at Boston Children’s Hospital are Ivy League trained, and it attracts the best and the brightest.

I found one particular physician, Dr. David Wessel, who seemed to be the right person. He was the only physician that I ever had retained that was board-certified in four specialties: pediatrics, pediatric critical care, anesthesiology, and pediatric cardiology. Normally a physician will be certified in one or two areas of medicine. Clearly Dr. Wessel’s credentials were exceptional. In addition, given his leadership position at the finest children’s hospital in the world, he had the kind of knowledge that only that kind of experience provides. Dr. Wessel was a superstar. I knew from my many years of doing medical malpractice cases that if anyone could figure out what had happened, he could. And if he backed my efforts I would have a credible case to try.

I called Boston’s Children Hospital and spoke briefly with his secretary. When she got back to me, she said, “He won’t look at the case; it’s 14 years old and he won’t look at cases that old.”
While that was disappointing to hear, it indicated to me that he had reviewed cases for other lawyers and had his own criteria for cases that he would and would not review.

Over the next several weeks I called the secretary three more times and chatted her up. Finally, I said to her in a jocular tone, “If you don’t get me in there, you are going to hear a grown man cry on the other end of this line.” She laughed and said, “Come over Wednesday afternoon and bring your medical charts with you.”

This was going to be the only time I ever met with a doctor without sending a file in advance with my own questions and annotations.

Then the “fun” began. I drove over to Boston and went up to Dr. Wessel’s office. The secretary and I chatted a bit and I was then seated in the conference room. After a short wait, Dr. Wessel came in. He was truly an imposing figure: every bit the physician authority figure.

After barely a “Hello,” his first question was, “Who let you in here?”

Whether he expected this meeting or not, I had no idea. Had the secretary set it up without his permission? I doubted that and quickly decided this was going to be a contest of wills.

For almost 30 minutes, he fired question after question at me about the case. Thankfully, I knew those records backward and forward. After thoroughly cross-examining me and my knowledge of the file, he said, “OK, leave the records here. I’ll take a look at them.” Clearly I had engaged his interest, and perhaps his ego. If for no other reason he was going to try to determine what had happened during surgery that led to such a tragic outcome, knowing others had failed.

Three weeks went by before I got a call from him. He said, “I have good news and bad news for you. Which do you want first?”

I replied, “That’s your choice.”

He then launched into a narration of his findings, barking out: “The good news is I can tell you why this child suffered brain damage. The bad news is that if they did this to other children, then there are other youngsters walking the streets of Albany with brain damage.” I hung on every word as he gave me his opinion.

Finally, we arranged for another meeting. Back in Boston, we went through the child’s medical records together, line by line. From them, he pulled a page with a grid containing a bunch of numbers on it. He asked if anyone had ever looked at this grid before? Of course, I had no way of knowing.

In an authoritative tone, he then told me,

He explained that while the child’s heart had been stopped during surgery to permit the surgeon to do the repair, the child’s blood was taken by tubes out of his body and run through a machine that oxygenated the blood. The numbers showed that the oxygen level had not been carefully monitored, allowing the blood gases to drop to a dangerous level.

I profusely thanked him and went on my way. I began to assemble a panel of other experts from all over the country, including a doctor from Brown University who invented all three types of bypass machines that exist. I also retained doctors from Yale, Columbia, and Duke University. Then I located a key expert in operating the bypass machine. This individual had run this type of machine for many years for a world-famous cardiac surgeon, Dr. Michael Debakey, a true pioneer in the field of cardiac surgery. His work was in the record books. Her testimony would be vital to our case.

Before the case was completed my partners and I had spent approximately $400,000 producing over 100 exhibits –many of them utterly unique– retaining experts and other necessities in pre-trial discovery, and conducting investigations. We were all in, win all, or lose all. Now there was no turning back.

This unique exhibit was created based on scientific and medical literature, but was something that a juror with no background in medicine could recognize and understand. This was just one of a hundred and five exhibits we intended to use at trial to prove our case. Little did we know that many would never be entered into evidence. The judge had his own plans for us.

As we proceeded to trial, I had a stroke of good fortune. Purely by accident, I found out who the defense’s chief witness was going to be. I paid for a nurse to go to South Carolina’s medical school where this doctor taught and search the library to find any unpublished works by him that I could use in cross-examination. He had many published medical journal articles, but these did not help me in proving my case. However, among his unpublished writing, which she was able to find, we discovered information that helped my case. He had done studies that contradicted what we believed he would say on the witness stand, and that would make him vulnerable to a detailed cross-examination.

We tried the case for three weeks. It was clear to me that the judge, whose father was a doctor, was doing everything that he could to block our exhibits from being shown to the jury. This included simple things like blow-ups of MRIs of the child’s brain that would ordinarily be admitted. At one point he even held my partner in contempt of court for not producing some records that one of our experts had in his files but through inadvertence had failed to bring to court.

As we were nearing the conclusion, Dr. Wessel from Boston proved just how well he knew the medical records of the child. In one of our several meetings he had said, “If this case is lost, it will not be because I didn’t prepare.”

At one point in his testimony the defense, in cross-examination, quoted from the medical records but misquoted the page number. Dr. Wessel quickly corrected him, saying, “No, counselor, that information is on the last line of page 29, not 39.” It appeared to us and the jury that he had committed the entire lengthy medical record to memory.

The last witness was the Director for Worldwide Cardiology Research at Merck Pharmaceuticals. He had discovered something that even Dr. Wessel had not found. As had been explained to the jury, the blood is taken out of the body and recirculated back into the body using tubes. There are tiny little pressure gauges on those tubes. The pressures recorded in the medical chart evidenced that one of the tubes was not allowing the blood to freely flow because it was most likely lodged against the wall of the artery. This was part of what our train exhibit demonstrated to the jurors, low-oxygen blood that was also not moving quickly enough to keep the child’s brain from incurring serious injury.

When my witness was halfway through his testimony on Friday afternoon, the judge took a break and decided to readjourn on Monday. Our expert had told us that he could not come back on Monday because he had a medical presentation to make at a conference in Memphis, Tennessee at 1 p.m. This would have been a serious blow to our case if he were unable to finish his testimony.

So we promised him that we would get him to his presentation on time. He came back Monday and testified from 9 a.m. to 11 a.m. We had a private jet waiting for him at Albany Airport that took him to Memphis in time for his 1 p.m. presentation–keeping the faith with the witness who trusted us enough to return and deliver a knockout punch to the defense cost us $12,000. You do what you have to do.

He was our final witness in the case. It was the hospital’s turn to try to explain away our proof. At that point, the hospital and their insurers had not offered a dime to settle the case. Things, however, were soon to change dramatically. Before the defense began, the judge called us into his chambers and said, “The hospital would like to settle the case.”

The first offer was $3 million, which we quickly rejected. After much discussion, the offer became $5 million, then $7 million, then $8 million. My partner and I agreed that we would accept that offer. The father of the child did not immediately agree. He wanted to go on with the trial to make the doctors suffer under cross-examination, and be publicly embarrassed for the damage they had caused. Finally, however, after much persuasion he relented.

We went back to the judge’s chambers and I sat next to the judge, keeping my partner a bit further from the judge. Before my partner could speak, I said, “Your honor, $8 million won’t do it, but $9 million will.” My partner kicked me under the table. I won’t repeat the language he used after we exited the judge’s chambers, but suffice to say he believed that I had just spoiled the negotiations. Nevertheless, the hospital finally agreed to the $9 million, and the case was settled.

Unfortunately, the ending of this story is even more tragic than the beginning. The child went on to drown at the Lutheran Home where he was living. The family asked me to sue the facility, and I unhappily told them that this was not something I wanted to undertake. I somehow felt that fate had intervened and taken a hand in releasing the family from the years of emotional trauma that had already experienced and was to be their future with this youngster. I was simply not going to be a part of the further years of gut-wrenching litigation that would follow my earlier efforts.

I often wondered: Had I actually helped the client despite the large award we helped provide? However, we had at least brought some measure of justice to the family.

This story is about a personal injury case handled by renowned New York attorney Sanford “Sandy” Rosenblum. It is part of our ongoing series, Personal Injury Case Files.