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Conduct and Conscience

Infant death draws a new trial and sanctions for PeaceHealth

Wednesday, July 16, 2014

The death of an infant draws a second trial—and a sanction from the judge.

Did hospital conduct contribute materially to the death of an unborn infant when medical professionals at PeaceHealth St. Joseph Medical Center in Bellingham released a mother of twins after failing to register a heartbeat from one of the twins? That was the essence of a protracted trial that concluded in April. A Whatcom County jury determined, no, the hospital was not at fault in the 2008 death of Jillian Dickerson and the continuing respiratory problems of her surviving sister.

Conduct at trial deeply troubled Whatcom County Superior Court Judge Ira Uhrig, who delayed for months before issuing his order based on the jury finding. After three months of deliberation, Judge Uhrig set aside that verdict and ordered a new trial. Uhrig confirmed his order verbally in court July 11.

“I spent more time on various summary judgement motions in this case than in any other case I can recall in the past 25 years of service on the bench,” Uhrig admitted in written orders released in June. “However, I have spent an even greater amount of time on the issues surrounding the plaintiff’s recent pre-post trial motions,” he said of the parents who sued the medical provider and professionals involved in the care of their unborn daughters.

“I cannot recall ever having granted a motion for a new trial in a civil case, but certain facts and factors… compel me to conclude that the plaintiff’s motion for a new trial must be granted,” he wrote.

Going a step further, Uhrig imposed substantial, unprecedented sanctions against PeaceHealth and their attorneys for repeated misconduct during the six-week trial. While he could point to no single instance of misconduct, Uhrig said, “I have reached the inescapable and regrettable conclusion that the cumulative effect of those violations was to deprive the plaintiffs a chance at a fair trial.”

At issue for the court were repeated violations by PeaceHealth attorneys of pre-trial agreements that they could not introduce to the jury speculation that the mother was at fault in the death of her child. PeaceHealth attorneys additionally introduced in closing arguments that the bereaved parents should be denied any compensation outright, implying to the jury that the the family had already been compensated and that their receipt of money had to stop “here and now.”

“PeaceHealth’s closing argument saying ‘no more, no more’ was clearly intended to suggest, incorrectly, that my clients has already been adequately and fully compensated and their receipt of any additional money has to stop ‘here and now,’” explained Doug Shepherd, the attorney for the bereaved parents.

Discussions of compensation, Uhrig noted, are appropriate after a jury has considered a matter on its own merits, and not framed as a personal financial burden to jurors, thereby potentially polluting their judgment.

“The focus was not on the jury or the jury evaluating how what amount of money would fairly compensate the plaintiffs or what receipt of the money would mean to them (the jury),” Uhrig emphasized, “but rather focused on emphasizing the need to award no money whatsoever.

“The only logical inference based on defense counsel’s actual words and inflection was to ask the jury to consider how much these ‘real dollars’ would impact the jury if the jurors were in the position of the defendants [PeaceHealth] and required to pay it out of their own pockets (by asking them ‘how long it takes to save money’),” Uhrig noted. “It immediately struck me as being entirely inappropriate.”

In court, attorneys for PeaceHealth offered little comment or protest to Uhrig’s order. They requested the court help clarify the amounts of the sanction.

• • •

In November of 2007, Julia Dickerson was pregnant with twins.

At 35 years old, Dickerson was already at risk for potential complications in the delivery of twins and was placed on a schedule of heightened monitoring of her pregnancy. A month later, in December, an ultrasound disclosed the possibility that the twins shared a fused placenta.

Twin to Twin Transfusion Syndrome, or TTTS, occurs in about 15 percent of identical twin pregnancies, typically diagnosed after about 30 weeks. Untreated, one twin can suddenly and quickly begin to siphon life from the other through the shared placenta, creating a medical emergency that is typically fatal to both twins. Timely laser surgery can separate the shared placenta and allow the twins to mature to full term in relative isolation from one another in the uterus.

Julia Dickerson was placed on a heightened schedule to monitor her pregnancy every two weeks while medical care professionals at PeaceHealth watched for signs of acute TTTS in her twins. Ultrasound is typically used to periodically monitor that progress, noted the medical professionals who commented on her condition at trial.

In early February of 2008, between these visits, Julia began to feel discomfort and alarm. She testified she was unwell and apprehensive. She visited the PeaceHealth emergency center. Nurses on staff attempted to monitor the heartbeats of the twins, but did not recommend ultrasound. In evidence presented at trial, two nurses reported to Julia’s primary care OBGYN physician that they were unable to get a heartbeat from one twin and with difficulty received incomplete vital signs from the other.
Julia was discharged from the hospital and sent home.

Five days later, in extreme distress and deeply concerned about her twins, Julia contacted the University of Washington Medical Center and asked if she could see them immediately. UW Medical Center staff told her if she could endure the trip to Seattle they should see her immediately.

The following day, the Dickerson twins were delivered in Seattle by emergency cesarean in an attempt to save their lives. Jillian Dickerson died nine days later from complications related to her premature birth. Her sister was also born with serious medical complications that endure to this day.

“It appears St. Joseph Hospital failed to provide proper care and treatment when Mrs. Dickerson presented on February 6, 2008, with severe chest pain and rapid heartbeat,” Shepherd noted at trial. She was released, “even though at least two nurses were unable to get fetal heart rates. Instead of properly assessing Mrs. Dickerson’s condition and performing tests to attempt to discover what was causing Mrs. Dickerson’s severe pain and rapid pulse” she was discharged over her protests, Shepherd said.
In depositions produced for trial, the supervising nurse noted that, while admitting no fault, had she opportunity to act again, she would hot have discharged Julia Dickerson.

The jury found no fault with the hospital.

Ordering a new trial, Uhrig imposed sanctions that allow the Dickersons and their attorneys to recover the costs of re-interviewing witnesses like the nurses, doctors and staff at PeaceHealth as they prepare for a new trial. Those costs could exceed $100,000, Shepherd estimated.

In extensive pre-trial motions in preparation for the original trial, Uhrig had cautioned that testimony or argument could not be introduced that suggested Julia Dickerson’s reasons for seeking health care on February 6 were unrelated to her concerns for the health of her unborn twin girls, or that she was negligent for duly following the instructions of the hospital and her OBGYN physician. He cautioned that attorneys could not insinuate at trial that a settlement with this family would impede or impair PeaceHealth’s ability to continue to provide quality medical care to the community. These instructions were cumulatively ignored by PeaceHealh attorneys at trial, Uhrig found.

“My ruling has been reached without considering the occasions on which [PeaceHealth] fact witnesses ‘testified’ about matters of which they stated they had no recollection,” Uhrig noted, or “when, without much explanation being given, the defense expert witness who ‘wrote the book’ on the relevant area of nursing practice testified in a matter apparently contrary to that which was in her book; or where defense witnesses testified based upon assumption of critical facts rather than recollection of these facts.

“The jury’s determination was irreparably tainted by the cumulative impact of repeated violation” of his cautions, Uhrig explained, making it “part of the whole picture” of defying the orders of the court.

“I cannot determine any more appropriate sanction than to require the defense to pay the plaintiff’s expert witness fees that were incurred at trial, together with any other costs that will necessarily be duplicated at the second trial,” Uhrig said.

“This is a monumental day for the Dickerson family,” Shepherd said after Uhrig verbally reaffirmed his June order last week. “I believe it is an important day for Whatcom County. Judge Uhrig correctly concluded the Dickerson family did not receive a far trial and has entered orders that provide a mechanism for a second, fair trial.”

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