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Jury Finds For Family In Baby's '03 Death

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By MIKE WELLS

The Tampa Tribune

Published: June 28, 2008

Updated: 06/28/2008 12:22 am

TAMPA - Family members took turns holding the lifeless body of Robert Gardner Jr., a premature baby who died a painful death. His light complexion had turned black.

Father Robert Gardner Sr. and mother Allyson Parham began to sob and embraced one another.

"Allyson was crying that she wants her baby back," said the baby's grandmother, Janet Parham. "Robert was saying he wanted an autopsy."

The couple said Tampa General Hospital did not do enough to save their child. Friday, five years after the boy's death, a Hillsborough County jury agreed and awarded the family $12 million for their pain and suffering.

The couple filed suit in 2005, arguing that the hospital was negligent in treating the intestinal infection that led to their boy's death. The families of eight other children also claim the hospital was at fault in their babies' deaths from the same infection.

The lawsuit that ended Friday alleged financial reasons motivated Tampa General to keep the baby in its neonatal intensive care unit rather than transfer him to a hospital where a pediatric surgeon could examine and treat him.

Four months ago, the family accepted settlement offers from the two doctors named in the lawsuit, Robert Nelson and Monisha Saste, and from the University of South Florida Board of Trustees, according to the family's attorney, Tripp Sebring. The doctors were employed by USF but were working at Tampa General.

Case Is One Of Many

The case is among numerous malpractice suits Sebring filed claiming the hospital was at fault in the deaths of nine premature infants who stayed in Tampa General between August 2003 and November 2004. The hospital offered a settlement to parents in one of the other cases in which the university is still a defendant, Sebring said. The rest are pending.

Sebring said the verdict was a "big first step" toward a resolution in all of those cases.

"This family wanted their day in court," he said, adding that the hospital had repeatedly offered substantial settlements to end the case, but the family turned them down.

Each baby suffered from necrotizing enterocolitis, or NEC, an infection that most often occurs in the intestines of premature infants. One out of four babies who contracts it dies, according to the National Institutes of Health.

The lawsuits claim Tampa General failed because no pediatric surgeon ever examined the babies at that hospital. Most died within a few days of being diagnosed with NEC.

Tampa General did not have a pediatric surgeon assigned to work in the unit at the time. Instead, it contracted with pediatric surgeons from nearby hospitals by granting them privileges at its facility. These surgeons could decide to examine a patient at Tampa General if time allowed or order the infant transferred to their hospitals.

Tampa General has declined to say how many patients with NEC it treated during the years covered in the lawsuits and how many died.

That information came out publicly in testimony on Monday.

A hospital employee testified that between Jan. 1, 2002, and Dec. 31, 2004, Tampa General treated 59 infants who had been diagnosed with NEC either before being transferred there or during their stay. Eighteen died at the hospital, and most of those who died did not receive surgery.

Her testimony was not heard by the jury, because the judge determined the data she collected had too many variables and might confuse the jury. All parties in this week's trial were ordered by the court not to speak publicly about the case.

Tampa General is licensed as a Level III neonatal intensive care unit. The Agency for Health Care Administration requires that such a facility provide services, including the ability to provide "continuous cardiopulmonary support services, 12 or more hours of nursing care per day, complex neonatal surgery, neonatal cardiovascular surgery, pediatric neurology and neurosurgery, and pediatric cardiac catheterization."

The state's definition, however, does not state what kind or how many doctors must be on staff at a Level III facility. Tampa General spokesman John Dunn would not comment on how many doctors were on staff for the time in question, but he did note that many physicians carry credentials at more than one facility.

"Many doctors have staff privileges at a number of different hospitals," he said. "They are allowed to practice at different hospitals."

Some of the infants in the lawsuits were transferred to other hospitals to be examined by a surgeon, but Tampa General waited as many as seven days in one case before doing so, the lawsuits state.

The lawsuit regarding baby Robert states that two autopsies - one performed by Tampa General and one performed by the plaintiff's experts - confirmed the child died from NEC.

While both parties in the lawsuit agree an infection led to the baby's death, when and where it developed were disputed.

"The autopsy confirmed that this premature infant died from a massive lung infection initially contracted during the two weeks he was cared for at another hospital," Dunn said in a written statement. "It was not related to the two days of care received at Tampa General. Unfortunately, there is no surgical procedure available to treat this kind of lung infection."

Dunn declined to speak about the other malpractice cases.

He said the 42-bed unit treated 949 infants between August 2003 and November 2004, when the hospital hired a pediatric surgeon for the NICU.

No matter what jurors decide in the lawsuits, there will be a positive impact, said Steve Yerrid, a Tampa malpractice lawyer who is not involved in the case. The hospital's actions are being held up to public scrutiny and adversaries on both sides are battling for the truth, he said.

"The system is tested," Yerrid said. "The question that will be raised is, did the health care system involved satisfy what every citizen should expect? That is, was the minimum standard of care provided?"

The verdicts will either raise the public's comfort level in the hospital's ability to care for premature babies or it will establish that a problem exists that should be fixed, he said.

"No matter what the outcome, the controversy is in the right place - an American courtroom," Yerrid said. "It allows a public forum to litigate the very critical issues of health care for our young people."

Baby Had Been Born 10 Weeks Early

With his mother experiencing complications, baby Robert was born 10 weeks prematurely on July 26, 2003, via a Caesarean section at Regency Medical Center in Winter Haven.

Weighing a little more than 3 pounds, the baby was placed on a ventilator while his lungs matured.

Several days later, he showed abdominal swelling and his feedings were stopped, the lawsuit states. Initially, he showed signs of improvement but that didn't last.

The child's physician at Regency determined on Aug. 14, 2003, that baby Robert had contracted NEC, the lawsuit states.

In a phone call, a neonatologist at Tampa General assured the Regency doctor that baby Robert would receive a neonatal surgical consultation at Tampa General if he was transferred there, the lawsuit states.

The infant was flown to Tampa General at 11:30 p.m. on Aug. 14, 2003. About 42 hours later, Tampa General's then chief of pediatrics, Robert Nelson, became involved in his care, the lawsuit states.

Nelson testified in a sworn deposition that he contacted a neonatal surgeon at St. Joseph's Hospital who told him that "surgery would more likely than not prevent the infant's demise," according to the lawsuit.

Baby Robert was not transferred and died the next day.

St. Joseph's pediatric surgeon Deborah L. Albert testified last week that she could neither recall nor find any record of having a conversation about this child. Albert also said she has never made a decision about surgery without examining a patient.

For a week, Amanda Sparks, 27, sat on the benches of the sixth-floor courtroom observing testimony in the lawsuit involving baby Robert. She came to support his parents and learn what to expect from her deceased daughter's pending malpractice suit, she said.

Her premature daughter, Georgia Faith Hicks, remained at Tampa General for seven days in 2004 before she was transferred to All Children's Hospital in St. Petersburg. Doctors there removed a large portion of her intestines, and the baby died a year later after long-term complications, including two five-organ transplant surgeries.

Sparks wants Tampa General to lose its status as a Level III neonatal intensive care unit and for the hospital's staff involved in her baby's care to lose their ability to practice medicine, she said.

Dealing with the loss was difficult enough, but finding out other babies died after not seeing a pediatric surgeon at Tampa General fueled her anger, she said.

"It doesn't get any easier," Sparks said. "When do they draw the line? When do they say this is enough?"

In the weeks after baby Robert died, his mother, Allyson Parham, returned to her job at a Lake Wales extended care facility and to classes she was taking, according to the testimony of her mother, Janet Parham.

"Initially, Allyson tried to resume her life as much as she could," Janet Parham said.

The family noticed the young woman, now 25, had grown short-tempered, was often angry and cried easily. These emotions resulted in the loss of her job, Janet Parham said.

Seeing the children of friends or family was painful and she avoided interacting with them, Janet Parham said of her daughter.

"Last week, Allyson and I went to dinner and there was a couple sitting next to us with a baby," Janet Parham said. "The baby held out it hands to be picked up, and I did.

"She wouldn't touch the baby. She tries, but she still has difficulty."

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