Category Archives: Birth Injury

10 Years After Lizzy’s Trial: Taking Care of Lizzy For Life. Thanks, Ken Suggs (p.3)

(Looking Back and Moving Forward – continued)

The doctor’s attorney asked questions about “studies” and past testing from others and how this case compares. They were hoping for some genetic connection for what happened to Lizzy. I wasn’t impressed and this expert was weak and seemed to hurt their case. The next person they called up was a nurse that was on the floor that night. They asked questions to build up the doctor. What kind of doctor was she? Has she ever had any problems with other birthing experiences? Does she conduct herself in a professional manner? Was she well-respected in the community? All great questions. Then my attorney asked two questions. Did she come into the hospital when you called her at 2:00 am? No, sir. Did she come in to the hospital when you called her at 5:00 am? No, sir.

“No further questions, Your Honor.”

They called up the next and last witness. Surprisingly, we had only begun two hours before at that point. My doctor took the oath and then sat down. This wasn’t a criminal case so there was no harsh punishment if she were to lose. This was a malpractice suit, which was a lawsuit against her and the hospital. The hospital settled a couple months before at our mediation. Had she agreed to a settlement, we would have avoided court. Our attorney walked out of our mediation and said, “How insulting– we are going to court!” He knew what he was doing but I was terrified.

I watched her on the witness stand. The way she blinked, moved her hands, adjusted in her seat, and the way her voice would crack. Again, they asked her questions about her stellar 25-year career. She mentioned that she delivered three babies that week with no problems. All healthy babies! With a big smile on her face. They asked her about the night I was there. She said she remembered getting those two phone calls but no one expressed any real concern about what was going on. They referred back to her deposition now and then. In her career, no one had ever brought a lawsuit against her.

Then they rested and our attorney stood up and walked over to an overhead projector. He just stood next to it and asked her this question.

“When you performed the C-section and you pulled Lizzy out, what color was the amniotic fluid?”

I looked at Damon…confused…again. Why on earth is this even a relevant question?

The doctor answered, “Clear.”

Our attorney asked, “Are you sure?”

The doctor answered, “Absolutely clear.”

Our attorney then turned on the projector and displayed the doctor’s deposition. He then asked, “Can you read to us what you said in your deposition about the color of the amniotic fluid, please?”

The doctor puts on her glasses and reads it aloud.

“The amniotic fluid was slightly yellow.”

I heard “Objection”, and “Your Honor, may I approach the bench?” It was clear that my doctor lied and they needed to do some damage control. Hey, where did that big smile on the doctor’s face go? We rested after a few more questions.

This meant that the closing statements would begin. I was feeling better. Where did the abuse accusation go?

After both sides finished, the judge spoke to the jury, like she did every day. This time was different. They were to have lunch in the deliberation room. This is where they would decide on our case. Then they left. Damon and I quietly left, went down the street to a fast food joint and ate our lunch. We sat and talked for a while. Then we got a phone call. Our attorney was telling us that the jury had reached a decision and we should come back to the courthouse. It had only been two hours.

We said from the very beginning that this was Lizzy’s money… Money that will provide care for the rest of her life.

We got back to the courthouse and sat down with our attorney in the middle of the room in one of the “pews.” He told us that this was not a good sign. Only deliberating for two hours is worrisome. As we were talking, one of the female defense attorneys came over to me. She put her hand on my shoulder, and said to me, “Mrs. Viele, I know that you are a good mom.” I said thank you and she took her seat.

Everyone assembled back into the courtroom and there was silence. The judge spoke to the jury and to the attorneys for a few minutes. Then it happened. The foreman handed the paper to the officer who handed it to the judge. She read it and gave it back. The officer handed it to another man (not sure who he was) and he read it out loud.

“We the jury find in favor of the plaintiffs in the amount of ________________.” (Our case was public so you can just Google it)

Damon and I just fell into each other and sobbed. I mean full on sobbing! Our attorney and his wife were crying. The jurors were crying. It was surreal.

The judge released the jury and that was it. We walked outside and some of the jurors were waiting for us, crying and telling us they were praying for us. Telling us it would never be enough but gave us extra on top of what we were asking.

We would have to go back to court in the next year and get Lizzy’s money. The doctor was going to try and appeal it but never did.

Before I get into money, I want to say this. I felt The Lord at every moment in that courtroom. For example, the judge that normally presides in Sumter (for some reason that I can’t remember) swapped time with our judge. Having a mother as a judge made me feel so much better. I remember her warm smile. Her name was The Honorable Paula H. Thomas. We ultimately give God all the praise and glory in our journey. His blessings have been abundant and we are humbled.

I was teaching fourth grade and I loved it. I would still be teaching and would be in my 16th year had Lizzy been born without complications. We would live in a normal-sized home just like our other teacher friends. I worked with so many wonderful women (and a few men) that supported me throughout this journey. I will always be grateful for their friendship and love. I miss them.

Damon and I decided that because Lizzy was starting preschool, and we just had Emily, it would be best for me to stay home. Going from two incomes to one was extremely difficult. This was in 2002. Three years before our trial.

We went back to court two more times before we would receive Lizzy’s money. It wasn’t until 2006 that we received it. All of it has been invested. My Astro van died picking up Emily from preschool in 2005. We traded it in for a beautiful brand new Honda Odyssey. It was perfect.

We had a home built in 2007. Damon had an idea of what he wanted for Lizzy. We definitely wanted a therapy gym for her, her own ADA (Americans with Disability Act) bathroom, and a good size bedroom for her to move around in. Lizzy is legally blind so it wasn’t going to be glamorous because that isn’t what she needs. In fact, nothing in our life has been glamorous, but that’s not what matters.

With the arrival of our settlement, we had a life care planner help with what we would need for Lizzy for the future. Basically, we went to court to receive a stipend each month to care for Lizzy. With what we won for Lizzy, we can care for her for the rest of her life.

We said from the very beginning that this was Lizzy’s money. We want to use it in a way that she would be proud of us. And we have done just that. We are a charitable family. We see a need; we will help fill that need. That is what Lizzy would want – I’m sure of that. We try to be good stewards of her money.

We know that people are curious, so we have always answered questions honestly and openly. We have never flaunted or been showy about it. Damon and I are the same people that we were before we won that day.

We have experienced people who are “jealous” of what we have. Some of them didn’t know about Lizzy and some of them did. Those that do know also understand that we would give every cent back to have our Lizzy say “I love you,” or “Hey, Dad”. In a heartbeat, every penny! I would also say to them, “Let’s trade lives for just an hour.” You can tell when someone is genuine and sincere. They ask about Lizzy and really want to know how she is.

It’s been 10 years since the trial, but the emotions still come up as I write this. We fought tooth and nail for that little girl.

Lizzy will be 16 this year, and she has everything she needs.

We are grateful. We are humbled. We are ready.

Looking Back and Moving Forward: 10 Years After Lizzy’s Trial

By: Lisa Viele

Seeking legal help for Lizzy's Birth Injury was a difficult decision.Ten 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. Sumter 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 attorney Ken Suggs with Janet, Jenner and Suggs 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 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 Ken Suggs 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.

The defense tried to discredit everything by digging up “dirt” on us. There was nothing, but they tried.

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 checkup 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 checkup 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.

Cerebral Palsy Movement Disorders Often Misdiagnosed

By Lee Vander Loop
CP Family Network Editor

Most parents of children who develop cerebral palsy leave the hospital with an initial diagnosis of some type of brain injury, although the extent of the damage is unknown.  Other parents may be sent home with a vague concern about low Apgar scores and little else. Symptoms such as lack of suck and lethargy may send them, frustrated and worried, back to the pediatrician again and again. Eventually, failure to meet development milestones will lead to a diagnosis of cerebral palsy. Most all children with cerebral palsy are diagnosed by age 3.

Diagnosis of a movement disorder within cerebral palsy can follow the same frustrating path.  Because of a number of factors, movement disorders are often misdiagnosed.

  • Seizures, for example, occur in 30-50% of children with cerebral palsy.  In some cases severe movement disorders can mimic the same exaggerated muscular involvement as a seizure, with similar posturing, spasticity, and uncontrollable movements.  An infant or a non-verbal child will be unable to communicate what they are feeling or experiencing during these episodes, making it extremely difficult for a health care provider to diagnose the condition.
  • The same spastic or uncontrollable movements can also be triggered by such things as ear aches, acid reflux, and certain medications, all of which will need to be treated and ruled out. Even an attempt by a person with cerebral palsy to control a movement can trigger the types of spasms seen in a movement disorder.

For these reasons, a non-verbal child with a movement disorder can go undiagnosed for years.  It’s not uncommon for physicians with no experience with the special needs population or movement disorders to misdiagnose a movement disorder as seizure. In the instance of severe movement disorders such as dystonia, it usually takes a neurologist or developmental pediatrician who specializes in special needs children to make the diagnosis. An EEG or extended EEG with video would be helpful  in reaching a diagnosis of movement disorder.  It can confirm or rule out seizure activity in relation to the behavior.

 

What Parents Need to Know

  • Keep a detailed journal of when and how often the abnormal movements occur
  • Note how long the behavior lasted
  • Note as many details of the behavior as possible, such as what limbs were involved and the severity of the abnormal movements. Were they extreme and violent or mild? Were the movements jerky, or did they resemble tremors? Did your child appear to experience pain with the abnormal movements?  Write down anything and everything that will provide as much information as possible for your child’s physician. You want to attempt to paint a picture for the physician using words. Be as descriptive as possible.
  • If possible, video tape the episode. This will provide your health care provider with a clear picture of what your child is experiencing.
  • Use a neurologist or pediatrician who specializes in children with special needs.
  • Request an order for an EEG to rule out seizure disorders.
  • Stay on top of the latest information. Aggressive research is being conducted throughout the world involving the treatment and prevention of movement disorders
  • Be persistent.  Movement disorders can be managed with a team approach and the right medications. Some movement disorders, left untreated can severely compromise a child’s quality of life and negatively impact a child’s development.

 

Signs and Symptoms of Movement Disorders

To offer some insight into what it is to experience a movement disorder, consider an event that we’ve all experienced at some point, in the twilight stages of sleep, just as we’re dozing off, our body twitches.   Another analogy would involve muscle cramps or spasms. Many movement disorders involve excessive muscle tone, also known as spasticity or hypertonia, that can lead to spasms. Now imagine your entire body or some extremity experiencing similar episodes of muscle spasms, involuntary movement or spasticity for an extended duration, and there was nothing you could do to stop it!

  • Chronic and severe arching of the back, also called posturing
  • Uncontrollable twitching, tics, or muscle spasms
  • Flailing or scissoring of extremities. A movement disorder may be limited to one part of the body or may impact all extremities
  • Jerky or vibrating movements
  • Screaming in pain from possible muscle spasms brought on by the possible extreme muscle tone or spasticity
  • A child may curl their toes as a result of muscle spasms associated with the movement disorder

 

Misconceptions

It’s a common stereotype and misconception that prompts people with no knowledge of cerebral palsy or movement disorders to associate movement disorders with cognitive impairment or learning disabilities. Depending on the severity and nature of the cerebral injury, not all individuals with movement disorders are developmentally delayed.

 

Types of Movement Disorders

Movement disorders many times involve either excessive or reduced levels of muscle tone and can include a variety of involuntary gross motor movements

  • Hyperkinetic – Means excessive tone. Also known as spasticity or hypertonia
  • Bradykinetic – Indicates reduced tone or activity, and is often referred to as hypotonia
  • Clonus is a common movement disorder associated with cerebral palsy. Clonus involves a series of involuntary muscular contractions and relaxation of skeletal muscles.
  • Dyskinesia involves a variety of abnormal involuntary movements, classified as Tremors, Chorea and Ballism, Myoclonus, Tics and Dystonias.
  • Myoclonus – There are many forms of myoclonus. It is characterized by rapid, muscular jerking movements and can be triggered with attempts at coordinated movement.
  • Chorea is a state of excessive, spontaneous movements, irregularly timed, non-repetitive, randomly distributed and abrupt in character. It may vary in severity from restlessness with mild intermittent exaggeration of gesture and expression, to a continuous flow of disabling, violent movements.
  • Dystonia is one condition involving movement disorders that may be associated with cerebral palsy. This writer has personal knowledge of this condition. Dystonia is a movement disorder that causes sustained muscle contractions and can result in abnormal involuntary muscle movements in the form of twisting, repetitive movements or posturing.  My daughter who is diagnosed Severe Spastic Quadrapalegia Cerebral Palsy also experiences moderate to severe episodes of Secondary Generalized Dystonia. I’ve witnessed severe dystonic episodes with my daughter that involved the same exaggerated involuntary gross motor involvement as a grand mal seizure.

 

Medications and Treatments

  • Benzodiazepines – a class of medications that act upon the central nervous system to reduce communication between certain neurons, lowering the level of activity in the brain. Benzodiazepines are muscle relaxants such as diazepam, oral baclofen, and dantrolene and are frequently the first line of treatment in managing movement disorders.
  • Spinal Cord Stimulation – Developed in the 1980s to treat spinal cord injury and other neurological conditions involving motor neurons, this procedure involves an implanted electrode which selectively stimulates nerves at the base of the spinal cord to inhibit and decrease nerve activity.  The effectiveness of spinal cord stimulation for the treatment of cerebral palsy has yet to be proven in clinical studies.  It is considered only when other conservative or surgical treatments have been unsuccessful at relaxing muscles or relieving pain.

 

Surgical Intervention

  • Selective Dorsal Rhizotomy (SDR) is a surgical procedure recommended only for cases of severe spasticity when all of the more conservative treatments have proven ineffective. In this procedure, surgeons locate and selectively severe over activated nerves at the base of the spinal cord.
  • Intrathecal Baclofen Approved by the FDA in 1996 for treatment of cerebral palsy, this therapy is becoming the common choice of treatment in movement disorders that do not respond well to other forms of treatment. This form of therapy uses an implanted pump device to deliver baclofen (muscle relaxant) into the intrathecal space of the spinal cord. This form of therapy is most appropriate for children with chronic, severe hypertonia and uncontrolled movement disorders throughout the body.

 

Research and Progress

There is aggressive research being conducted throughout the world involving the treatment and prevention of Movement Disorders.  Much progress has been made as evidenced by my own daughter, who without the benefits of Intrathecal Baclofen, would be living of a life of chronic muscle spasms and dystonic posturing as a result of her severe cerebral injury and subsequent neuromuscular involvement.

Lee Vander Loop is a writer, researcher and Editor for CP Family Network. Her daughter, Danielle, was diagnosed shortly after birth with severe spastic quadriplegia cerebral palsy and also suffers from moderate to severe episodes of secondary generalized dystonia.

 

Source

National Institute of Neurological Disorders and Stroke,  “Myoclonus Fact Sheet

National Institute of Neurological Disorders and Stroke NINDS,  “Spasticity Information Page

Dystonia Medical Research Foundation, “What is Dystonia

Kennedy Krieger Institute, “Movement Disorders

Medtronic, “About Dystonia

American Academy of Neurological Surgeons – Movement Disorders

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