{"id":137521,"date":"2021-04-26T12:00:00","date_gmt":"2021-04-26T12:00:00","guid":{"rendered":"https:\/\/www.propublica.org\/article\/parents-want-justice-for-birth-injuries-hospitals-want-to-strip-them-of-the-right-to-make-that-decision#1064705"},"modified":"2021-04-26T12:00:00","modified_gmt":"2021-04-26T12:00:00","slug":"parents-want-justice-for-birth-injuries-hospitals-want-to-strip-them-of-the-right-to-make-that-decision","status":"publish","type":"post","link":"https:\/\/radiofree.asia\/2021\/04\/26\/parents-want-justice-for-birth-injuries-hospitals-want-to-strip-them-of-the-right-to-make-that-decision\/","title":{"rendered":"Parents Want Justice for Birth Injuries. Hospitals Want to Strip Them of the Right to Make That Decision."},"content":{"rendered":"\n

\n by Carol Marbin Miller<\/span> and Daniel Chang<\/span>, Miami Herald<\/a> <\/p>\n \n\n \n

\n

ProPublica is a nonprofit newsroom that investigates abuses of power. Sign up to receive our biggest stories<\/a> as soon as they\u2019re published.<\/p>\n\n <\/div>\n\n \n\n\n\n

\n

This article was produced in partnership with the Miami Herald, which is a member of the ProPublica Local Reporting Network<\/a>.<\/p>\n\n <\/div>\n\n \n \n\n\n\n \n

Ashley Lamendola was still a teen when medical staff at St. Petersburg General Hospital delivered the awful news that would change her life forever: Her newborn son, Hunter, had suffered profound brain damage and would do little more than breathe without help.<\/p>\n \n \n \n

\u201cIt was like an atomic bomb went off in my life,\u201d she said.<\/p>\n \n \n \n\n\n

Never miss the most important reporting from ProPublica\u2019s newsroom. Subscribe to the Big Story newsletter.<\/a><\/p>\n\n \n \n \n \n

Lamendola believed the hospital was partly responsible for Hunter\u2019s birth injuries. But Florida is one of two states that shield doctors and hospitals from most legal actions arising from births that go catastrophically wrong. Lamendola filed a lawsuit against St. Petersburg General anyway, and when it appeared she was gaining traction, the hospital advanced an extraordinary argument.<\/p>\n \n \n \n

It suggested that Hunter\u2019s mother was not acting in her son\u2019s best interest and that a critical decision about his future care should be put in the hands of an independent guardian and a judge. Lamendola, attorneys said, was pursuing her own self-interest by refusing to participate in the quasi-government program that compensates the families of children injured at birth.<\/p>\n \n \n \n

Under the program, known as the Birth-Related Neurological Injury Compensation Association, or NICA, the state provides $100,000 upfront and pays for \u201cmedically necessary\u201d care for the child\u2019s lifetime. In exchange, parents give up their right to sue hospitals and doctors, lawsuits that can result in judgments or settlements in the tens of millions of dollars.<\/p>\n \n \n \n

By choosing to \u201cpursue her own speculative, complicated civil lawsuit\u201d rather than permitting her son to accept his \u201cvested\u201d NICA benefits, Lamendola was trying to profit from Hunter\u2019s injuries, St. Petersburg General attorneys argued in a court filing. They underscored the words \u201cher own.<\/a>\u201d<\/a><\/p>\n \n \n \n

Had she accepted Hunter\u2019s inclusion in NICA, \u201cthe Mother would be unable to pursue her own civil lawsuit, seeking her own separate monetary damages for the Child\u2019s injuries,\u201d the lawyers added.<\/p>\n \n \n \n\n \n \"\"\n

\n An excerpt from St. Petersburg General Hospital\u2019s court filing in response to Ashley Lamendola\u2019s lawsuit.\n <\/p>\n \n\n \n \n \n

\u201cYou carry a child for nine months, and then you finally get to hold them \u2014 eventually in my case,\u201d said Lamendola, who was employed as a customer service rep at an AutoZone when she gave birth. \u201cAnd you take care of their every want and need, and you put a child before you. I mean, once you have a child, there is no more you<\/em>. It\u2019s them. It\u2019s us. It\u2019s that baby that needs you and needs everything from you.<\/p>\n \n \n \n

\u201cI didn\u2019t understand how somebody who wasn\u2019t me could know what he wants and needs. I knew every sound, every movement, every seizure that he had,\u201d Lamendola said. \u201cAnd to think that somebody thought they knew better than me. It was wild to me.\u201d<\/p>\n \n \n \n

The battle between parents like Lamendola and hospitals like St. Petersburg General can seem like a gross mismatch: Lamendola was a single mom who made $10.50 an hour and lived with her mother. HCA Healthcare, which owns St. Petersburg General, is one of the nation\u2019s largest for-profit hospital chains, with 180 hospitals, 280,000 employees and revenues of $51.5 billion in 2020.<\/p>\n \n \n \n

For hospitals facing stunningly high settlements or verdicts, NICA, the state\u2019s no-fault program, is a valuable legal tool \u2014 a club to bat away expensive lawsuits. At the cost of $50 per live birth, hospitals can protect themselves from multimillion-dollar judgments.<\/p>\n \n \n \n

Paolo Annino, who heads the Children\u2019s Advocacy Clinic at the Florida State University College of Law, said attempts to restrict a parent\u2019s authority through the appointment of a guardian are unusual: In child welfare disputes, for example, parents must be found unfit by a judge before being stripped of their right to decide what\u2019s best for their children.<\/p>\n \n \n \n

\u201cWhat we have here is a scenario where there\u2019s no allegation of offending parents at all,\u201d he said. \u201cThe parent is, with very few exemptions, the one who makes the child\u2019s health care decisions.\u201d<\/p>\n \n \n \n

NICA came under fire this month after a series of reports<\/a> by the Miami Herald and the investigative reporting newsroom ProPublica. Families complained that the $100,000 grant \u2014 unchanged since 1988 \u2014 is inadequate, and that payments for medical procedures or equipment are routinely slow walked or denied entirely. After the articles were published, state leaders professed outrage and promised a comprehensive fix<\/a> to the program.<\/p>\n \n \n \n

Here is how NICA works: After a baby is born brain damaged, parents can file a lawsuit against the hospital and doctor. The defendants then can ask the judge to pause the suit and order the parent to file a NICA claim. That petition is heard in a separate venue by an administrative judge, who then decides if the case is \u201ccompensable.\u201d Ultimately the administrative judge determines whether NICA applies or if the parents can resume their lawsuit.<\/p>\n \n \n \n

To qualify for NICA, in addition to having physical and cognitive impairments, a child must weigh at least 2,500 grams (5.5 pounds) at birth and be delivered in a hospital. When children don\u2019t fit those criteria, parents retain the ability to sue.<\/p>\n \n \n \n

For the roughly 440 Florida children covered by NICA over the past 33 years, some of them now deceased, the program wasn\u2019t really a choice. It was a mandate, with a few exceptions. <\/p>\n\n

One exception is when OB-GYNs fail to pay a $5,000 annual assessment. Nearly 1 in 4 licensed obstetricians statewide does not pay. Another is when a hospital doesn\u2019t pay its $50-per-birth fee.<\/p>\n \n \n \n

Parents can also argue that they weren\u2019t properly notified by their hospital or doctor of their participation in NICA with enough lead time to choose another provider. When parents like Lamendola attempt to invoke these exceptions, the fight can become fierce \u2014 and expensive.<\/p>\n \n \n \n

Both the hospital and Lamendola\u2019s obstetrician, Christina Shamas, declined to discuss Hunter\u2019s case with the Herald.<\/p>\n \n \n \n

One of the hospital\u2019s lawyers, Jay Spengler, wrote in an email to the Herald that, for children who qualify for NICA compensation and coverage, \u201cit is something that should be carefully considered, as it provides a child affected by severe birth-related neurological injuries a lifetime of necessary and reasonable medical services.\u201d<\/p>\n \n \n \n

In a deposition, Shamas defended her performance that day, saying that, as the \u201cdifficult\u201d delivery progressed, she believed at that point that Hunter would be born just as quickly with a vaginal delivery \u2014 and the aid of a vacuum device \u2014 as he would a C-section.<\/p>\n \n \n \n

Though Hunter\u2019s heart rate declined significantly several times during the 80 or so minutes right before he was born, the fetal heart monitor also showed that it accelerated again, too, she said. <\/p>\n\n

\u201cThis does not necessarily mean a compromised baby,\u201d Shamas said. <\/p>\n\n

Shamas also said that Hunter\u2019s heart rate would improve when nurses administered oxygen to his mother, repositioned her in bed and gave her fluids.<\/p>\n\n

Shamas said she took all the necessary steps to ensure Hunter was born healthy.<\/p>\n\n

Floppy, Silent, Alive<\/strong><\/p>\n \n \n \n

It\u2019s unclear how often lawyers representing doctors and hospitals accuse the parents of brain-damaged children of selfishness in an effort to force them to accept NICA benefits. Requests for guardians can occur anywhere in a family\u2019s legal journey: administrative court, trial court or appeals court.<\/p>\n \n \n \n

Richard Milstein, a past president of the Dade County Bar who has been appointed guardian ad litem in hundreds of disputes, said he was aware of no statutory provisions governing the appointment of guardians in NICA cases.<\/p>\n \n \n \n

Generally, judges have discretion over whether to appoint a guardian, though Milstein said judges often rely on guardians to be their \u201ceyes and ears\u201d on matters involving litigants who can\u2019t make decisions for themselves.<\/p>\n \n \n \n

But when hospitals and doctors \u201cquestion the wisdom\u201d of parents making decisions about their children, \u201cit is an offensive concept,\u201d said Michael Freedland, a Broward attorney who represented Lamendola.<\/p>\n \n \n \n \n \n

\u201cIt should send chills down the spine of every parent out there who is caring for a perfectly healthy child, or one who has special needs,\u201d he said.<\/p>\n \n \n \n

In its review of 1,238 NICA claims at the Division of Administrative Hearings, the Herald examined in detail 10 such cases but did not find any in which a guardian recommended a family be required to accept NICA compensation.<\/p>\n \n \n \n

In one case, an Alachua circuit judge appointed a guardian ad litem to represent the interests of Nazyrah Jones, an Ocala child who suffered permanent brain damage when her heartbeat \u201cessentially flat-lined\u201d during delivery on May 13, 2008, a lawsuit alleged. Nazyrah\u2019s guardian wrote in a 2011 report<\/a> that \u201cit would be in Nazyrah Jones\u2019 best interests that this case proceed as a medical malpractice lawsuit.\u201d<\/p>\n \n \n \n

A Central Florida hospital told Ninoshka Rivera, too, that it knew what was best for her son, Kevin Terron-Otero. And what was best was NICA.<\/p>\n \n \n \n

Due to oxygen deprivation, Kevin was born floppy and silent, but alive, on Nov. 4, 2009. The hospital and doctors thought it was a classic NICA case, though Rivera wanted to seek compensation through a lawsuit. As the process played out, the hospital asked an Osceola County Circuit Court to appoint a guardian<\/a> to weigh in.<\/p>\n \n \n \n

In a court brief, the hospital said it was concerned about the well-being of the child, fretting over \u201cthe staggering potential for loss to this child\u201d if Rivera persisted. <\/p>\n\n

The judge did appoint a guardian, but the guardian did not recommend that Rivera\u2019s son be forced into NICA, freeing her to sue.<\/p>\n\n

Rivera settled with the hospital\u2019s insurer for $1 million. She is still in litigation with three doctors and two medical practices that have denied wrongdoing, court records show. <\/p>\n\n

Luis Jimenez and Priscilla Franco experienced a similar fight. <\/p>\n\n

The couple\u2019s 2016 NICA petition was filed \u201cunder protest,\u201d arguing that NICA\u2019s lawsuit ban was unconstitutional. For its part, NICA determined the injuries to their child compensable in March 2017.<\/p>\n \n \n \n

The parents continued to resist, alleging in August 2018 that son Dallas received substandard care in a manner that was \u201cwillful and wanton.\u201d That\u2019s another exception, though rarely used, to escape NICA.<\/p>\n \n \n \n

In this case, it worked, enabling the parents to pursue their lawsuit in Miami-Dade Circuit Court. The <\/a>hospital then asked the judge to appoint a guardian<\/a>, with the familiar argument that the parents had demonstrated a conflict of interest<\/a> with their son by turning down NICA\u2019s guarantees. That request was rejected.<\/p>\n \n \n \n

The malpractice litigation remains pending.<\/p>\n \n \n \n

And when Sandra and James Shoaf spurned NICA\u2019s one-time $100,000 payment and fought to pursue their malpractice suit, a hospital pointed out that their two-year separation<\/a> \u2014 divorces are common among the parents of severely disabled children \u2014 left their daughter, Raven, especially vulnerable to her parents\u2019 self-interest. The family was allowed to reject NICA benefits, and the hospital where Raven was delivered eventually settled with the family for $13 million, insurance records show.<\/p>\n \n \n \n

Lucinda Finley, a University of Buffalo law professor whose expertise includes tort and equal-protection law, said accusing parents of seeking to profit from their children\u2019s injuries is a form of emotional abuse \u2014 compounded by the fact that parents and their children are the victims of someone else\u2019s potential negligence.<\/p>\n \n \n \n

\u201cSimultaneously devastating and enraging, infuriating,\u201d Finley said. \u201cI can imagine the parent saying this hospital whose doctors are responsible for killing or seriously injuring my child now has the audacity to say I don\u2019t care about my child.\u201d<\/p>\n \n \n \n

She added: \u201cThese are not parents who are suddenly seeking to improve their lifestyle. These are parents who are suddenly faced with the crushing financial needs of seriously disabled children.\u201d<\/p>\n\n

Just Keep Pushing<\/strong><\/p>\n \n \n \n

An emergency C-section might have saved Hunter Lamendolafrom being deprived of oxygen and suffering permanent brain damage \u2014 and spared his mom from a lifetime of hardship, Lamendola said in her lawsuit. She said she had urged her obstetrician, Shamas, and the nurses who delivered Hunter on June 27, 2012, to initiate a cesarean section. Her mother, grandmother and aunt all had required C-sections to give birth.<\/p>\n \n \n \n

Lamendola, then 19, soon began to suspect that Hunter was in danger, she testified in an August 2016 deposition. Nurses repositioned her several times, \u201cpropped\u201d her up with a pillow and administered oxygen. They said they \u201ccouldn\u2019t see the baby\u201d on a fetal heart monitor, she said.<\/p>\n \n \n \n

\u201cI was worried about Hunter,\u201d Lamendola said in the deposition. <\/p>\n\n

\u201cEvery time I said I wanted a C-section, it seemed like nothing was done about it,\u201d Lamendola said. \u201cSo I didn\u2019t feel like I was really heard.\u201d<\/p>\n\n

The nurses, Lamendola said, were \u201cdismissive\u201d of her \u2014 at one point telling her to \u201cjust look at this smiley face on the wall and forget about\u201d her pain. <\/p>\n\n

When Lamendola asked again and again for a C-section, she was told to keep pushing, she said.<\/p>\n \n \n \n

\u201cDr. Shamas said, \u2018You need to continue pushing. You need to push with all your might,\u2019\u201d Lamendola recalled in her deposition. After Hunter emerged, Lamendola gushed blood. \u201cBlood went all over the room,\u201d she said. \u201cIt flung everywhere.\u201d<\/p>\n \n \n \n

Hunter was transferred quickly to the neonatal intensive care unit at All Children\u2019s Hospital \u2014 now Johns Hopkins All Children\u2019s \u2014 also in St. Petersburg. Lamendola did not get to touch her newborn son or catch more than a glimpse of his face behind a plexiglass incubator on wheels.<\/p>\n \n \n \n

The emergency medical team from All Children\u2019s that had rushed in to transport Hunter from the St. Petersburg General Hospital delivery room asked repeatedly if Lamendola had seen him.<\/p>\n\n

\u201cThey said, \u2018We want to bring him by your bed, so you can see him just in case it\u2019s the last time,\u2019\u201d Lamendola recalled in an interview, choking back tears.<\/p>\n\n

Lamendola said St. Petersburg General\u2019s hospital staff moved her to a room beyond the nursery to spare her the sound of bawling babies and joyful moms.<\/p>\n\n

Nurses taped a picture of Hunter to the wall, Lamendola said.<\/p>\n \n \n \n

A day passed before Lamendola could see Hunter again \u2014 at All-Children\u2019s \u2014 then a week before she could hold or touch him. All Children\u2019s scheduled a meeting in a conference room adjacent to the neonatal intensive care unit, with a large wooden table surrounded by empty chairs, and a television cart and white board off to the side.<\/p>\n \n \n \n

The first indication of where the meeting was going: a box of tissues on the table. The second: The hospital had arranged for a pastor to be present.<\/p>\n\n

Hunter\u2019s intensive care doctor broke the news. Hunter had sustained \u201cglobal brain damage.\u201d<\/p>\n\n

\u201cAll the baby books don\u2019t talk about that,\u201d Lamendola said in an interview.<\/p>\n\n

\u201cEverything that I had planned or hoped. I didn\u2019t know what could or would be possible, at that point.\u201d<\/p>\n\n

Hunter is blind. He cannot talk. He has reflux and cannot swallow. And he suffers almost daily seizures. <\/p>\n\n

Lamendola filed the malpractice suit against Shamas and St. Petersburg General on April 24, 2013. The lawsuit was halted in July. Lamendola also was ordered to file a NICA petition.<\/p>\n \n \n \n

On March 11, 2014, NICA told an administrative judge that Hunter\u2019s injury was compensable. But the following August, the judge, Susan Belyeu Kirkland, ruled that Lamendola could reject NICA benefits because St. Petersburg General had failed to give her proper notice of its participation in the program.<\/p>\n \n \n \n

Such notice can\u2019t be given when a mother is already in labor and unable to choose another doctor.<\/p>\n \n \n \n

\u201cThe policy of St. Petersburg General Hospital was to provide the NICA notice only when the patient [arrived] at the hospital and is admitted as an inpatient for delivery of her baby,\u201d the judge wrote. In other words: too late for a mom to find another hospital.<\/p>\n \n \n \n

The ruling opened a door for Lamendola to exit NICA. St. Petersburg General promptly moved to shut it.<\/p>\n \n \n \n

With the dispute now back in Pinellas Circuit Court, St. Petersburg General asked for appointment of the guardian, arguing Lamendola could take millions of the hospital\u2019s money \u2014 and then walk away from her son when he got older.<\/p>\n \n \n \n

\u201cThe child is vulnerable given the Mother\u2019s limited duty to only support the Child until the age of majority,\u201d the hospital wrote<\/a>. The court pleading underscored the word only.<\/p>\n \n \n \n

Vivek Sankaran, director of the Child Advocacy Law Clinic at the University of Michigan Law School, noted that the hospital itself had a conflict of interest, since it would be off the hook legally and financially if Hunter became a NICA client.<\/p>\n \n \n \n

\u201cThe law is clear that someone does not get to substitute judgment unless there is proof that you have fallen below a more objective standard of harming your child in some concrete, identifiable way,\u201d Sankaran said. \u201cIt can\u2019t simply be \u2018we disagree with your assessment of what\u2019s best for your child.\u2019\u201d<\/p>\n \n \n \n

\u201cThe law builds in protection for us to disagree on matters of child rearing,\u201d he added. \u201cThat\u2019s what the constitutional decisions have always held.\u201d<\/p>\n \n \n \n

St. Petersburg General, through its insurer, would ultimately pay Lamendola $9.5 million to settle the case \u2014 after spending nearly $1.2 million fighting her, insurance records show<\/a>. Shamas\u2019 insurer paid another $250,000<\/a> to the family \u2014 after spending $400,000 in litigation.<\/p>\n \n \n \n

According to her attorney Freedland, Lamendola is not allowed to discuss the settlements.<\/p>\n\n

Devotion and Pediasure<\/strong><\/p>\n \n \n \n

Now 8, Hunter\u2019s typical day begins at 6:30 a.m., when his mother prepares his breakfast: Pediasure, a liquid mixture of vitamins, minerals and protein, pumped directly into his stomach and small intestine through a plastic tube.<\/p>\n \n \n \n

At 9 a.m., Lamendola gives Hunter his meds. About a half-dozen of them, sometimes as many as nine. At 9:30 a.m., she disassembles Hunter\u2019s wheelchair and loads it into the car for occupational therapy at 10, followed by feeding therapy at 11 a.m. Lunch is at noon \u2014 more Pediasure in the pump \u2014 followed by 30 minutes in a contraption that builds muscle in Hunter\u2019s paralyzed legs. Then a half-hour listening to the television, which blindness prevents him from seeing.<\/p>\n \n \n \n

Lamendola\u2019s mother takes care of Hunter when Lamendola is at work.<\/p>\n\n

Hunter is more like a patient than a little boy, said Lamendola, who is more of a caregiver than a mom.<\/p>\n \n \n \n

\u201cIt\u2019s hard to be a mom now, because I have to be a therapist. I have to be a nurse. I have to be a doctor. I have to be everything that I should not have to be for him,\u201d Lamendola said in a deposition. \u201cI have to be a secretary to make all the appointments and cancel appointments when he\u2019s sick.\u201d<\/p>\n \n \n \n

Hunter now has a little brother, Levi, who is a toddler.<\/p>\n \n \n \n \n \n

\u201cHe is like a little Mama Bear to him,\u201d Lamendola said in an interview. \u201cWhen Hunter has a seizure, he rushes over and holds his arm and checks on him. When his feed runs out, starts beeping, he runs over and points at it to tell us to turn it off. He\u2019s very protective of Hunter.\u201d<\/p>\n \n \n \n

Before the birth of her second child, Lamendola insisted that her new obstetrician agree in advance to a C-section. And she found a doctor who didn\u2019t participate in NICA.<\/p>\n \n \n \n

\u201cSince I had Hunter \u2014 and I\u2019m basically his advocate, and I am basically his words \u2014 I have learned to speak up for myself and say whatever I have to say,\u201d Lamendola said. \u201cI honestly don\u2019t care anymore if I\u2019m nice about it. I\u2019m going to say my truth.\u201d<\/p>\n \n \n

This post was originally published on Articles and Investigations - ProPublica<\/a>. <\/p>","protected":false},"excerpt":{"rendered":"

by Carol Marbin Miller and Daniel Chang, Miami Herald <\/p>\n

Pr…<\/p>\n","protected":false},"author":4419,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[20789],"tags":[],"_links":{"self":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/137521"}],"collection":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/users\/4419"}],"replies":[{"embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/comments?post=137521"}],"version-history":[{"count":4,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/137521\/revisions"}],"predecessor-version":[{"id":140562,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/posts\/137521\/revisions\/140562"}],"wp:attachment":[{"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/media?parent=137521"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/categories?post=137521"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/radiofree.asia\/wp-json\/wp\/v2\/tags?post=137521"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}