Overdose of medication results in large verdict for death of baby

by Lance Palmer
Spotlight Verdict Editor

On January 22, 1993, 5-day-old Max was internally burned to death by a medication overdose of 150 times the prescribed amount at Children's Hospital and Medical Center in Seattle. Two months before trial, Children's Hospital formally stipulated to liability and the case was tried solely on the issue of noneconomic damages sustained by the newborn's parents for the loss of love and companionship of their child, destruction of the parent-child relationship, parental grief, and mental anguish and suffering pursuant to RCW 4.24.010.

During voir dire, one of the prospective judges asked: "Since the hospital has admitted that it is at fault, why haven't you guys settled this case?" It was a good question. There was no economic harm, damages for pain and suffering for an infant are not recoverable and the only issue was the compensation to be paid to the parents and/or the estate for the wrongful death of Max. Why the case didn't settle is almost as interesting as the case itself.

Children's Hospital is insured by Washington Casualty, previously known as the Washington Hospital Liability Fund. During the first mediation at WAMS, the insurer offered $75,000, which it increased to $82,500 accompanied by the comment that they were approaching their "top dollar" because Max's potential IQ had only been about 80-85. The combinations of the low offer and the rather thoughtless comment insulted plaintiffs and, for the very first time, made them consider the possibility of going to trial. A second mediation session resulted in a final offer of $150,000 followed by a formal Offer of Judgment.

Throughout both mediation sessions plaintiffs and their counsel were repeatedly advised of the history of wrongful death claims on behalf of infants in this state. Plaintiffs were told that there were 11 known jury verdicts ranging from zero to $400,000 with an average of around $150,000. Plaintiffs' last demand at mediation was $350,000.

Three weeks before the scheduled trial date of July 31,1995, the mediator called and said that the case would settle for $250,000, if the parents would accept that figure. After conferring with the clients, plaintiff's counsel advised the mediator that $250,000 was acceptable. Much to the frustration of the mediator and plaintiff's counsel, the carrier would not agree to settle for $250,000. In the meantime, plaintiffs had gone on a short camping trip in order to "celebrate" settling their case. Understandably, they were both disappointed and angry when they returned to find out that there was no settlement. At that time, serious consideration was give to terminating negotiations entirely. However, since $250,000 had been acceptable the week before, plaintiffs decided to resubmit the figure as an absolute final demand with a deadline of 12:00 p.m. on July 19, 1995.

Plaintiffs' counsel made it clear that the figure had been suggested by the mediator, that it was considerably lower than plaintiffs' original "bottom line" and that there was no room for negotiation. Washington Casualty responded with a final offer of $225,000 and the same deadline of 12:00 p.m. on July 19, 1995. Despite several telephone conferences between the carrier and plaintiffs' counsel during which counsel made it clear that this was a nonnegotiable position, the deadline passed without action by either party.

During counsel's next meeting with plaintiffs there was a lengthy discussion as to how to respond if the insurance company offered $250,000 in the future. It was agreed that it would be rejected and that the case would proceed to trial.

"My clients were terrified at the prospect of trial. They were physically shaking at the start of mediation. Max's mom was pregnant and due two months prior to trial. They wanted to settle. They were willing to compromise. But, the insulting offer and attitude of Washington Casualty put some fire in their bellies," recalled Todd W. Gardner, plaintiff's counsel. "After mediation failed, I walked them down in the courthouse and showed them the courtroom where their case would be heard. Once they realized that walking into the courthouse was not like entering the gates of hell; they decided that they could go to trial if necessary."

On July 25, 1995, the insurance company did, in fact, offer $250,000. The offer was rejected. The rejection was met with a flurry of letters, telephone calls and faxes from the carrier and defense counsel attempting to force settlement for that figure. Finally, in-house counsel for Washington Casualty made an unannounced visit to the plaintiff's counsel on the weekday prior to trial with a check for $250,000 in hand. Again, it was rejected. Plaintiff's counsel was advised on more than one occasion by the insurance company that he was doing a "disservice to his clients" and that he had a "duty" to convince them to accept the $250,000 offer.

Trial commenced on August 1, 1995. Once of the key rulings was the rejection by Judge Carol A. Schapira of the defendant's Motion in Limine seeking to exclude from the jury any discussion of the overdose or the effect it had on Max, Judge Schapira sided with plaintiff's argument that the overdose and the pain suffered by Max, insofar as it was understood by his parents, was relevant to the issue of damages for parental grief, mental anguish and suffering.

The issue of whether the overdose itself and Max's pain was relevant in an admitted liability case was compared to the speed and force of impact in an admitted liability automobile collision. In such a case, evidence as to why the defendant struck the plaintiff at a certain speed would be irrelevant, but the speed of impact and the nature of the child's injuries or pain as understood by the parents would be relevant. Similarly, plaintiffs could not introduce into evidence any of the reasons "why" the employee of Children's Hospital gave the overdose, but could discuss the overdose, the burns suffered by Max, and the parent's knowledge of the pain he suffered before he died as relevant to their own parental grief, mental anguish and suffering.

The father's notes on his copy of the autopsy report written contemporaneously with the conference he and his wife had with the attending neonatologist at Children's Hospital, lent strong support to plaintiffs' position. Some of the medical terms were defined for the parents as meaning "bleeding," "injury" and "damage." The medication was also described as "corrosive" in the autopsy. It was very clear to the parents that their son had suffered severe internal chemical burning as a result of the overdose that led to his death. They also witnessed the last hour of his failed resuscitation, which added to their emotional trauma.

Max was born with neonatal Graves' disease, a transient condition caused by the passage of maternal antibodies from his mother, who was diagnosed with Graves' disease at the same time she found out that she was pregnant with Max. The maternal antibodies pass through the placenta in only one to two percent of pregnancies involving mothers with Graves' disease. Max did not have primary Graves' disease; rather, his condition was transient and would have resolved in six weeks to four months, after which the maternal antibodies would have been metabolized out of his system.

Neonatal Graves' disease causes a number of short-term physical problems, including enlargement of the heart, liver and spleen together with intrauterine growth retardation. It also increases the risk of premature delivery. Max was born nine weeks early with a birth weight of 2 lbs. 14 oz. All of these problems generally resolve. However, the accelerated development caused by the hyperactivity of the thyroid can contribute to mild to moderate developmental disabilities, including intellectual delay and sensory motor problems. Literature suggests that up to half of the children born with neonatal Graves' disease develop some degree of developmental delay. Generally, it is quite mild and not noticeable to the casual observer.

Prior to trial, plaintiffs had retained an economist whom they intended to call at time of trial. In addition to an economist, defense counsel retained a University of Oregon pediatric endocrinologist, a Seattle pediatric neurologist, as experts for the purpose of outlining before the jury Max's chances of suffering a developmental disability had he not died as a result of the overdose.

If Max was developmentally delayed, it would have had a significant impact on his educational attainment and future earning capacity. Plaintiffs' economist had to rely on certain assumptions as to Max's potential for completing high school and/or college in order to estimate the net loss to the estate. This would have allowed the defense to submit evidence of Max's potential developmental disability without fear or backlash by the jury. Hence, a tactical decision was made not to call an economist at trial and to try the case on the basis of noneconomic damages alone.

Plaintiff subpoenaed Max's attending neonatologist and the pathologist who performed the autopsy, from Children's Hospital and Medical Center. Sticking to a very tight script based on the medical records and the testimony they had given in their depositions, both physicians were taken through the size of the overdose, the impact it had on Max's body, his death and what the parents saw at the resuscitation. Plaintiffs testified on their own behalf, together with three lay witnesses and a Seattle psychiatrist. The defendant hospital also called a Seattle psychiatrist and a grief counselor as witness.  This last witness helped the plaintiffs' case immeasurably.

The defendant's witness became a grief counselor following the death of her daughter.  This helped to illustrate to the jury just how profoundly a child's death affects a parent.  How many people change their life's work because of a single event?"  Gardner asked.  The defendant hospital also called a Seattle psychiatrist and a grief counselor, as witness.  This last witness helped the plaintiffs' case immeasurably.

Plaintiffs' counsel hoped to establish that the loss of a child results in the worst emotional pain that any individual can suffer and that emotional pain is worse than physical pain. In essence, plaintiffs hoped to demonstrate that losing a child results in the most significant and emotionally debilitating pain that any human being can be asked to suffer. This particular theme was established in voir dire when the jurors were asked which they thought was more significant -- the worst emotional pain imaginable or the worst physical pain. All of the prospective jurors agreed that emotional pain, in general, is worse than physical pain. Expert testimony was in agreement with the juror's beliefs. By way of analogy, plaintiffs' psychiatric expert pointed out how few people take their own life as a result of physical pain compared to the number of sane individuals who commit suicide to put an end to emotional suffering. At trial all of the mental health care witnesses confirmed that the loss of a child was most likely the worst emotional trauma that could be suffered by a human being.

Plaintiffs' counsel elected to leave his firm's video presenter in the office. Liability was admitted and there was little need to spend a great deal of time going through the medical records. More importantly, minimizing the photographic evidence both avoided the potentially tasteless enlargement of photographs of Max before and after he passed away and helped to demonstrate the paucity of memories the parents have of their lost child. They were left with five Polaroid photographs and a plastic bag from the hospital containing what the social worker described as "the usual momentos," such as footprints, a pacifier, a hospital nightgown, blanket and blood pressure cuff.

Various techniques were utilized in closing argument to try and establish before the jury the importance we as a society place on the life of a child. As argued by counsel, the life of a child was considered paramount as far back as the time of the Bible as epitomized by the story of Abraham. When Abraham was asked by God to make the ultimate sacrifice as a demonstration of his faith, he was not asked to pluck out his eyes, cut off his hand or to sacrifice his wife, mother or brother. He was told to kill his son. As Abraham raised the blade of his knife to plunge into the breast of his son, God stopped him, which further demonstrates the love God has for children. Contemporary examples included the lasting image from the Oklahoma City bombing of the fireman carrying the battered and bloody 1-year-old baby girl from the rubble. The point was simple: the lives of our children are precious and if one is inexcusably taken then the value we place on life must be significant.

Plaintiffs' counsel attempted to use the "McDonalds' verdict" in a positive way in closing by arguing that while $3 million for burning an adult may be considered by some to be excessive, internally burning a child to death is the type of case that would warrant a verdict of that magnitude. In an effort to avoid potentially reaching too far in terms of damages, plaintiffs' counsel argued that under no circumstances should the verdict be less than $1 million. Although it was pointed out that $1 million is not economically as significant a figure as it was in the past (one 30-second Superbowl commercial, 3 percent of Bill Gates' house, keeping the federal government running for 20 seconds), it is still a "symbol" in this country of something of value.

The argument was also made in an effort to avoid having the jury reach a "compromise" between the figures argued by plaintiffs' counsel and defense counsel based on the assumption that this must be where negotiations were deadlocked. If $1 million was the only number mentioned by plaintiffs' counsel, it was feared that the jury would use that number as a starting point and move down rather than treating it as a floor.

Although one never knows the significance of jury instructions, it should be pointed out that the applicable WPI appears to be somewhat outdated. It refers to "pecuniary" damages. Pecuniary is defined in the dictionary as "monetary." In two mock trials, many of our "jurors" were unfamiliar with the term, asking if it meant "puny," "financial" or "peculiar." It would appear that the WPI should be modified given to our supreme courts' interpretation of the 1967 amendment of RCW 4.24.010, which makes it clear that noneconomic damages are to be considered by the jury. Utilizing language approved by the Washington Supreme Court in Wilson v. Lund 80 Wn.2d 91, 491 P.2d 1287 (1971), the jury was specifically instructed to consider parental grief, mental anguish and suffering. In support of plaintiffs' position, it was noted that before the 1967 amendment jury instructions had been given stating that parental grief, mental anguish and suffering could not be considered. Without an instruction more readable than WPI 31.06.01, a jury may not be aware that those elements could be considered as part of the loss of love and companionship of the child and the destruction of the parent-child relationship, which are the terms selected by the legislature for this statute.

On August 9, 1995, after a five-day trial, a King County Superior Court jury returned a verdict of 1 million. Prior to this verdict, the largest jury award for the death of an infant in the State of Washington was $400,000. The award is believed to be the largest jury verdict for the death of a minor of any age in this state.

Plaintiffs were represented by WSTLA member Todd W. Gardner of Swanson Gardner, P.L.L.C.