Born in 1988, Danny was a very cute baby who was the pride and joy of his parents. The first months of Danny’s life were wonderful. He went to all his doctor’s appointments and his Mom, Lori, was always told that Danny was healthy and that all was going well. In doctor speak, “he met all the usual milestones.” As he approached his first birthday, Danny started doing not so well. It was nothing dramatic. But, slowly Danny began to miss milestones. He even lost some milestones he had previously met. He became “floppy” with very poor muscle tone. He could not sit up and he could not hold his head up. Yet, his pediatrician, Dr. Paul Mandala of West Islip on Long Island, New York, kept telling Lori that all was fine.
Finally, even Dr. Mandala had to admit that Danny was not fine. But, Dr. Mandala never looked into WHAT HAPPENED? He never tried to find out why Danny was no longer doing as well as he had been. All Dr. Mandala did was send Danny for some therapies. Eventually, he started telling Lori that her baby had cerebral palsy and he would probably be mentally retarded. But, Dr. Mandala never once tried to explain what happened to Danny, or why he had become the way he was. Like all parents, Danny’s trusted their doctor. They trusted Dr. Mandala. In hindsight they wish they hadn’t.
When Danny was about 3 ½, he developed “projectile vomiting.” This is more than the usual vomiting that can occur when a child is sick. He was taken to a small community hospital, Southside, where Dr. Mandala had privileges. Again, Dr. Mandala made light of the situation and told the parents that Danny had only “a virus” and should be taken home. This time, Danny’s parents did not trust Dr. Mandala, and instead took Danny to a large teaching hospital, North Shore University Hospital. Finally, Danny was properly diagnosed with a condition commonly known as Hydrocephalus. What had been happening to Danny is that his body was making excess cerebro-spinal fluid. This excess fluid was causing excess pressure on Danny’s brain. Over time, this excess pressure was causing damage to Danny’s brain.
Danny’s case was not brought to the attention of Mr. Spencer until Danny was already 13 years old. He should have been in 7th grade. Danny could walk, but it was very awkwardly. He could speak only four words: Mama, Dada, bus and ball. He could not toilet himself. And could only communicate the need for a diaper change or to be fed by using his own form of sign language. He was a wonderful little boy. But, he had a lot of handicaps.
When the case was first given to Mr. Spencer, it was nearing a trial date. But, so far, no one had lined up experts or even figured out what went wrong. Those jobs were left to Mr. Spencer. Given the diagnosis and treatment at the large teaching hospital, it was clear that by that time, 3 years old, Danny had hydrocephalus. But, prior to then no one had ever mentioned hydrocephalus.
When he went through Dr. Mandala’s record, Mr. Spencer noticed something very strange. For each visit, Danny’s height, weight and Head Circumference were measured and recorded. This is a very standard practice that every parent is well familiar with. But, there was something major that was missing. Where was the chart plotting Danny’s measurements? Of particular importance, where was the chart showing the progress of Danny’s Head Circumference?
Mr. Spencer knew that we are all born with a particular size head. He also knew that for the most part, people’s heads tend to grow in relationship their head size at birth. In other words, if a full-term baby is born with a head circumference that plots to the 50th %tile, a normal head growth pattern should continue to grow along the 50th %tile. For example, if a baby’s brain is injured during labor and delivery, the head growth will slow and the HC will drop below the 50th %tile. And if a baby has excessive fluid and thereby excessive pressure inside the skull, the HC will tend to grow more rapidly than normal and the HC will plot above the 50th %tile.
So, Mr. Spencer did what Dr. Mandala should have done 13 years earlier. He got out astandard HC growth chart and started plotting the HC’s that were measured by Dr. Mandala’s nursing staff. Danny was born with a HC at the 50th %tile. It remained at the 50th %tile through his 7-month checkup. But, after that it started to climb. It dramatically grew past the 75th %tile, the 90th %tile and the 95th %tile. It went completely off the normal chart. By the time he was 18 months old, Danny’s head was much bigger than a boy twice his age whose HC was at the 95th %tile.
Mr. Spencer discussed his findings with Danny’s parents. Not surprisingly, they told Mr. Spencer that it was around this time that Danny started doing poorly. Now we knew what had caused Danny’s brain injury.
But, Insurance Companies that defend doctors against malpractice claims do not give up easily. A trial was needed. Initially, Dr. Mandala tried to claim from the witness stand that Danny was always a “floppy” baby and that nothing had really changed while he was seeing the child. Mr. Spencer cross-examined based upon Dr. Mandala’s own notes that seemed to indicate normal development. But, the doctor continued to insist that the baby had never developed normally. A key issue was Danny’s “head control.” Dr. Mandala kept referring to office notations after 7 months of age that said that Danny had “poor” or “no head control” and was “unable to hold head up.” Despite that there were no notations like this before 7 months of age, Dr. Mandala insisted Danny always had poor head control. Mr. Spencer’s questioning continued to the end of the day. The cross-examination would have to continue the next morning.
Mr. Spencer had an idea. Himself the father of five, he remembered the classic picture that all parents seem to get of their baby lying on his or her stomach, with their heads lifted up and smiling at the camera. This shot is always taken when the baby is less than 6 months of age—and it demonstrates that the baby has great head control. He discussed this with Danny’s parents at the end of the day’s testimony. He then followed them to their home to search through Danny’s baby pictures. Sure enough, with a date written on the back of the picture, there was 3 month old Danny lying on his stomach with his head raised high, with a great smile for his mother’s camera. As he resumed his questioning the next morning, with an enlarged copy of the picture in his hand, Mr. Spencer made it impossible for Dr. Mandala to continue to claim there had been no change in Danny.
The trial still went on for weeks. But when it was all said and done, the Jury agreed with Mr. Spencer and awarded Danny $10,000,000.00.
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