Looking Back and Moving Forward: 10 Years after Lizzy’s Trial
Posted by American Association for Justice on May 21, 2015 in Birth Injury
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, Jenner and 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:
- 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?
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.