By Lisa Viele
10 years ago we started our trial. I remember it clearly. Well, most of it. Lizzy was 5. We had moved from Sumter, SC to Myrtle Beach in 2003. My husband Damon was teaching and coaching. Same thing he did in Sumter. A brand new school opened and he was blessed to get right in and become the head golf coach. I was a stay-at-home mom to Lizzy, who has cerebral palsy, and Em, who was 2 at the time. Lizzy was in preschool. I was still driving my Astro van. I loved it. All of Lizzy’s equipment could fit in the back.
We arrived at the courthouse after staying in a hotel in Sumter. This is where Lizzy was born, so naturally this is where the trial was. I was so anxious. I remember walking into the courtroom and just shaking. I had never been in a courtroom before. It was intimidating. We were told to sit to the left side of the room, while the right side was full of about 100 potential jurors. They had been summoned for jury duty for our case. A case that began in 2000. It was a long 5 years of excruciating ups and downs.
October 1999: My Intuition Kicks In
I came home after finally getting my birth records from the hospital and immediately contacted the first attorney I could find that “looked” professional. I didn’t know any better and I was desperate. I just knew I wanted someone with lots of experience. This was only after having an argument with Damon about it. He was totally against any kind of litigation. It was “too public” and he said no. My intuition had kicked in, and I said yes. I called this attorney at 7:30 at night and he took my call. (Thank you Mr. Pat McWhirter.) He listened to me for a very long time. He said he would help us. I felt relieved already. He called me a few days later and said that he had spoken with My Advocates attorney Ken Suggs with Janet, Janet & Suggs law office in Columbia and he would take our case. And just like that, we had representation. Not one penny upfront.
April 10, 2005: Day 1 of the Birth Injury Trial
As I sat in the courtroom, I looked at the people that were there to sit on the jury for our case. I was nervous that they wouldn’t able to understand what happened or that they would assume things about us as parents. I knew what the defense was going to do, and it was going to hurt. Bad.
The judge walked in and just started eliminating people. She asked several questions to the group including:
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- Have you ever been a juror on a malpractice case before?
- Are you a teacher?
- Have you ever known the plaintiffs?
- Have you ever brought a lawsuit again anyone?
If they answered yes, they would go up to the judge and explain further. Then she would dismiss many of them. Amazingly, we ended up with just the right amount. Twelve jurors and two alternates. And so the trial began…immediately.
We moved to the table in front of the courtroom. This was our place for the next four days. Right next to the jury. Both sides had their opening statements. The defense’s statement was that we abused her and the doctor was not responsible for Lizzy’s condition. Our attorney had his opening statement and then he called our first witness. I will always remember this guy. He had dark hair. Thin. Just a regular guy. He was an OB/GYN. When he opened his mouth, I was stunned by what he said about Lizzy. As a doctor, he said he would have delivered her at 11:00 pm the night before! This man was emotional about Lizzy. He taught all of us how to read a fetal monitor strip. I just cried. Now I know why those monitor strips were missing from my medical records when I finally got them.
After court ended for the day, we met him outside the courtroom and he just broke down. He hugged us and told us how sorry he was. His testimony was strong.
When we left court that first day, we went back to our hotel room. Damon and I were tired, but we still talked about the day. It was emotional. Bedtime was early for us. We still had four more full days to go.
April 11, 2005: Day 2 of the Trial
Day two. We were told to wear clothes that we would wear to work. Damon dressed like he was going to school everyday and I looked…presentable. I was a stay at home mom so my usual clothes were leggings and a sweatshirt. Our attorneys explained to us what would happen that day. Experts they would call. Just keeping us in the mix. Really, we just sat there and listened. We really had no part in these first two days. Day three would be our time.
We had our friend/pediatrician Dr. Key take the stand. He was great. He had been there at her birth, and was a great expert witness. I remember him coming into my recovery room with Damon. It was 7:00 at night and I still had not seen Lizzy. She was born at 9:00 that morning. Damon shut the TV off, sat down in the chair in the corner of the room and put his head in his hands. Dr. Key sat on my bed and took my hand. He told me that there was nothing more they could do for her here at this hospital and that she needed to be transported to the children’s hospital. I had no idea that there was anything wrong. I cried and begged to see her before she left. They rolled in this tube with her in it. They opened it up and I was able to touch her toe. I wouldn’t hold her for the first time until three days later.
Dr. Key was just as wonderful on the stand that second trial day. He made us feel great, telling the jury what kind of parents we were. He said that our families went to church together and that Damon was a great teacher and coach. Then the defense tried to discredit everything by digging up “dirt” on us. There was nothing, but they tried. For example, after I had Emily in 2002, I took a break from Lizzy’s therapies–just for a few weeks. They tried to say a good mother wouldn’t have taken a break. They asked if he agreed. He didn’t. Hearing that, I felt a little bad about taking a break. But there was nothing we could have done to change what happened to Lizzy at her birth… so I moved on.
The rest of the day played out in a similar way. We had witnesses take the stand, then the defense would refer back to their depositions and try to make them slip up. The next day would be even more difficult. Damon and I would take the stand. How do you prepare for that?
You don’t.
January 2000: First Signs Something Was Wrong
Lizzy had a well-baby check up with Dr. Key. She was three months old. He did the normal checks with her: weight, height, head circumference, and asked how she was with her seizure medicine. She’d been on it since birth to stop her seizures. The only side effect was that she was a lethargic baby. (Phenobarbital is a strong seizure medicine and I hate it. She ended up coming off it in a few months because she was showing no development.) Her check-up was uneventful and we left.
A week later I got a call from the neurologist that saw her at the children’s hospital. He sounded panicked. He told me that he received the latest CAT scan of her brain and she was bleeding. She had a CAT scan at birth and a follow-up one in late December. He told me to get to children’s hospital immediately. My heart began pumping so fast and I was just crying. I scooped my baby girl up, strapped her in the Astro van, and we headed to the high school to find Damon. We got to the children’s hospital in a panic. Oddly, no one else was. Her doctor was not there and we waited an hour to get a room. Then, the whole situation just got weird. When we finally got a room for her, a nurse came in now and then to check on her. Lizzy was calm and happy. They told us to stay overnight and we did. They said the ophthalmologist would be in the next day. The ophthalmologist? Isn’t that an eye doctor?
The next morning, the ophthalmologist came in to examine Lizzy. He told us she had some visual defects and gave us a referral to see a local eye doctor. This was the first that we knew of any disabilities with her. Then he said, “I don’t see any tears (not watery), and the cornea looks fine.” Crickets in the room. “Um, what?” I was confused. Then he just left the room. The next person to walk into the room almost made me vomit. She introduced herself as a social worker for the county. I just about lost it. What was happening here? As she examined Lizzy, she just stopped and her head dropped.
She said that she was so sorry, and felt bad even walking into our room. She knew that we were a loving couple with a beautiful baby and that we hadn’t abused her. I could have lost it at that moment, but I felt grateful for her. She was gentle and kind with us. But, honestly, I was still confused why she was even there. We were discharged immediately after she left.
We followed up with Dr. Key a few days later and this is where he dropped the bomb. When we had seen him for her well-baby checkup, he measured her head. Finding that it had grown very little since birth, he was concerned. He called her neurologist and discussed her latest CAT scan. Her neurologist assumed that she was being abused. Dr. Key told him he knows that that was not true but as a physician, he was legally responsible to report it. I was in tears at this point. Damon’s jaw had dropped open about two seconds into Dr. Key opening his mouth. Dr. Key was just heartbroken he had to do this. I can’t lie: it still hurt. He apologized then went on to explain the “bleeding on the brain” cat scans. Lizzy had a scan at birth. There were no issues and her brain look normal. Her late December 1999 scans showed a different brain; one that had shrunk and pulled blood vessels. Her brain at birth was swollen from the trauma. When the swelling had gone down, it caused bleeding from the pulling of the blood vessels. That was when she was diagnosed with microcephaly: a rare neurological condition in which the head is smaller than other normal heads.
April 12, 2005: The Day We Took the Stand
Day Three.
This was our day. The day the jury would be able to hear us. Hear our voice. I was terrified. Damon was too, but never showed it. Our attorney had specific instructions for when we were on the stand.
Speak clearly and speak to the people on the jury. Look into their eyes when we speak.
Sounded easy enough.
Damon was first. “Do you swear to tell the truth, the whole truth and nothing but the truth so help you God?” This was real. Hand on the Bible. He was asked many questions about Lizzy. Many questions about the night I was in labor. Questions about how life has been with a child like Lizzy. I looked at the jury at one point and saw the men crying. You could hear the sniffling, whimpering, and pulling tissue from the boxes. Damon broke a few times and that was hard to see. It wasn’t often that I saw this man cry. I saw his hurt. He was sad about Lizzy.
Summer 1999: That Would Be Great Too
We decided not to find out the sex of the baby. This was our first and we wanted to be surprised. We went to a new parent class at our local hospital and we were the only couple that didn’t know. Damon “just knew” it was going to be a boy. So much that he painted the baby room blue! At one point, I said, “There is a chance we are having a girl, D.” That was when he said, “I will do everything with a little girl that I can do with a little boy, so that would be great too.”
April 12, 2005: My Turn on the Stand
After our attorney finished with Damon, the defense just pounced. We had our depositions maybe two years before this. So for us to remember what we said and have the exact same answer was a bit difficult. They would ask him a question and then give him a copy of his deposition and ask for clarification. Then our attorney would object, and we would wait for the judge to discuss the answers with both attorneys at her bench. This kind of stuff ate up a lot of time. Over all, Damon was strong and I was proud of him. Being on the stand was difficult. I was about to learn that on my own.
I remember asking our attorney if I should bring the “book.” He said yes, take it up with you discretely. I walked up to the stand and was told to raise my right hand and place my left on the Bible. I set the “book” in my lap and looked at Damon. I started to weep a little. I felt alone up there. He saw that and shot me those warm eyes with a nod of “you got this babe.” I immediately felt less tense.
The very first thing was to show a video of Lizzy to the jurors. This was the first time they would put a face with a name. Lots of smiling through tears. Apparently, I was the witness they were really waiting for. I was her mom. I experienced everything. I carried her and gave birth to her. My testimony would be crucial.
After the video, my attorney started with some simple questions to get me warmed up and comfortable. I had a very hard time looking at the jurors. I couldn’t because of the crying. They were crying for us. For Lizzy. They were parents, grandparents, uncles, aunts, sisters, and brothers. It was hard for them to sit and listen to this. Not being able to look at them, my attorney moved right in front of them so I was forced to “look” that way. I remember being up there for some time. His questions were easy to answer.
During the defenses’ opening statements, they immediately put abuse at the forefront. Calling our lawsuit a frivolous one. They wanted the jurors to know that my doctor that delivered Lizzy was well-respected in the community. She had a successful 25 years as an obstetrician/gynecologist with many healthy babies delivered. She sat with her attorneys every day and never looked at us. It’s not every day you get accused of abusing your precious baby girl. I know what abuse is and have experienced it first hand. We tried for years to have a baby and she was wanted and planned for. So I was ready for everyone in that courtroom to see the “book.”
April 2000: One Incident
I was playing a game of scrabble with my mother-in-law and had Lizzy in her car seat on the floor next to me. She was sleeping and I was going to wait until she woke up to take her out of it. While playing, I knocked off a pocket dictionary off the table and it fell on Lizzy.
This was the “book” I brought up to the stand.
She woke up and cried for 30 seconds and I rocked her back to sleep. I put her in her crib and that was the end of it. This book is part of a desk reference set that had 75 pages in it. It was a hardbound book. It was the smallest book in the set. Lizzy had no markings on her from it. I was honest about everything and made sure it was in my deposition.
April 12, 2005: The Book
Knowing that incident could not cause the kind of disability we were experiencing, I was not worried. However, I was worried about the jurors thinking this is what caused her to be the way she was. This was the reason for having it with me. When the defense attorney made his opening statement, he said that I purposely dropped a huge dictionary on her. I immediately strongly disliked him and the two women he had with him.
My attorney finally gets to the “book” and I get butterflies. He said “Lisa, you have been accused of dropping a huge and heavy dictionary on Lizzy. Do you have this huge book with you today?” I said, “Yes, sir.” He then asks me to hold up the book for everyone to see. So I hold it up and look at the jury. Lots of smiles, which made me feel good.
The defense had their time also. They scared me. They asked questions about her Medicaid and expected me to know all about it. All I know about Medicaid is that they were paying for all her medicines, doctor visits and therapies. They tried to trip me up, but the judge wouldn’t have it. My experience on that stand was like no other. I felt so many emotions while there. Anger, sadness, bitterness, hate, love, compassion, loneliness, and fear.
Then suddenly…we were finished. I was the last witness. It was their turn. The next day would be painful. It was the day they tried to convince the jury we abused Lizzy.
April 13, 2005: Day Four of the Trial
This day was going to be difficult to get through. My heart was beating out of my chest when I took my seat at the front. Damon was quiet that morning. The defense was going to make it look like we slapped her, banged her head against the wall, shook her, and all the other horror stories that I had heard before of abuse. I hate that they had the last “ups.” Whatever they said last, I felt, is what the jurors would remember. I was helpless.
They called an expert from a genetic center. I was familiar with this particular place because it was strongly suggested for me to receive counseling and testing from there. So for them to call someone from there was confusing. They have no records on us.
If you believe your child’s cerebral palsy was caused by medical negligence, contact Janet, Janet & Suggs today for a free, no-obligation legal consultation.