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Civista – $5.1 Million Verdict

Weltchek Mallahan & Weltchek vs CivistaDoctors liable for failing to spot child abuse
By Peter Geier
Daily Record Legal Affairs Writer

A team of Lutherville plaintiff’s lawyers won the first medical negligence verdict in Charles County Circuit Court – a confidential settlement for the La Plata family of an infant allegedly abused by his baby sitter.

The jury found that private pediatrician Dr. Soma N. Reddy, Dr. Donald Shell and Dr. Hammond J. Dugan III of Mid-Atlantic Emergency Physicians LLC, contract physicians at Civista Medical Center, had been negligent in failing to recognize the abuse of John L. “Jack” Sprague IV and to alert authorities.

“It’s really a very traumatic case of shaken baby syndrome,” said Robert Weltchek, one of the lawyers for Jack Sprague and his parents, John L. Sprague III and Robin Sprague. “But the doctors didn’t recognize it and an abused child was returned to the abuser.

“If the doctors had just performed a CAT scan on Jack when he was first taken to the emergency room” after his first reported fall in November 1998, while under baby sitter Nancy J. Brookbank’s care, “they would have seen the subdural hematoma and skull fracture,” Weltchek said.

This telltale information would have alerted them that the infant was possibly a victim of abuse or neglect, obligating them to contact proper authorities in order to have the baby removed from his abuser’s care, he said.

“But he was returned to the abuser and suffers severe mental retardation and cerebral palsy as a result – a 6-year-old child whose constant care now makes him the equivalent of a 6-month-old,” Weltchek said.

Michele L. Smith, counsel for Civista Health Inc., said while she respects the jury’s verdict, the trial was emotionally charged and, though the medical issues were straightforward, the evidence was at best speculative as causation.

“It was a very emotional trial,” Smith said. “The young man was present during opening arguments, ” which even after instruction makes “a very powerful” statement that is hard for a jury to ignore.

“There’s a long causative chain that really proves little if any evidence of abuse” in the first reported instance; furthermore, “evidence before the jury not contradicted by plaintiffs’ experts was that the child was normal” when the doctors first saw him, she said.

“There are two or three evidentiary issues that I believe an appeals court will be very interested in,” Smith said, adding that her client currently is reviewing its options for an appeal.

The jury awarded the family $266,297 for past medical expenses, $3.5 million future and life care medical expenses and $1.3 million for the child’s future lost earnings, with no non-economic damages. The plaintiffs had sought more than $14.8 million in total damages, including from $3.5 million to $4.7 million for lost earnings, from $6.3 million to $8.5 million for total medical expenses, and non-economic damages capped at $560,000 each for the child, mother and father, according to their pretrial statement.

The case arose from “major, traumatic head injuries” the 11-month-old Jack Sprague suffered while in Brookbank’s care in November and December 1998, court documents say.

The plaintiffs persuaded the jury that the doctors should have recognized the abuse in mid-November when the Spragues first brought the baby to the emergency room, though the parties dispute the extent of the child’s injuries prior to a December incident that led to criminal charges.

“There is no dispute that Jack suffered major, traumatic head injuries while in the care of Ms. Brookbank on Friday, Dec. 4 that caused severe and permanently damaging brain swelling and bleeding,” court papers say.

Brookbank, of Waldorf, who has not been a party to any related civil action, was indicted in Charles County Circuit Court in August 2000 for first-degree assault and child abuse.

In August 2001, she was acquitted of the assault charge, but convicted of child abuse and sentenced to 15 years imprisonment with all but 5 years suspended. However, the Court of Appeals reversed her conviction last year, sending it back to circuit court for retrial.

Although Weltchek pointed out that the defendants “conceded child abuse by the baby sitter,” both state appeals courts held that the court that tried Brookbank had erred in not allowing her to cross-examine the baby’s parents as to their contemplated civil lawsuit.

Her case has not been scheduled yet for retrial, according to the Charles County prosecutor’s office.