Brian Jancovic - The Tube Fell Out

It was the summer of 1987 and Brian Jancovic’s case became the first of many brain damaged infant cases that was to be tried by Gil Spencer. Although he had previously tried many criminal cases, Mr. Spencer had tried only one medical malpractice case prior to Brian’s. Because of the successful $1.4 million verdict in that first case, the managing partner of Pegalis & Wachsman chose Mr. Spencer to try Brian’s case.

When he was first assigned the case, Mr. Spencer was told that it would be a very difficult case, and in the words of that managing partner, a case “he would likely lose.” Brian was born with a Meningomyelocele, which is commonly referred to as Spina Bifida. What made the case a likely “loser” was that this birth condition can be associated with cerebral palsy and mental retardation no matter how good the medical care. If Brian’s condition was just “the way he was born,” there was no case. But, if poor medical care had caused Brian’s injury, then he deserved to be compensated. Which was it? Mr. Spencer was determined to find out!

When Mr. Spencer first met Brian and his family, two things were immediately apparent: 1) Brian was a tragically injured 11 year old boy who was confined to a wheelchair with severe cerebral palsy and who was barely able to speak and 2) Brian had a wonderful and amazingly supportive family. But, why was Brian the way he was?

Together with outstanding experts (particularly the then Chief of Child Neurology at Children’s Hospital in Washington, D.C.), Mr. Spencer meticulously went through the extensive medical records. The first thing that became apparent was that the treating doctors did properly diagnose Brian’s Spina Bifida, and they devised the proper plan to treat his condition. Simply stated, Brian’s lower Spinal Column had failed to fully develop. Essentially, Brian had a small hole at the bottom of his spine, from which cerebro spinal fluid was leaking. This hole was properly closed within the first few days of Brian’s life. However, Brian’s body was now used to making more cerebro spinal fluid to make up for the fluid that had been leaking. Once the hole was closed, the doctors needed to watch Brian closely to see if excess fluid would begin to cause excess pressure on Brian’s brain. It did. And the doctors again reacted properly by taking Brian back to surgery to insert a VP (ventriculo-peritoneal) shunt, a tube designed to relieve this excess pressure.

THAT’S WHEN THE INJURY HAPPENED. Under general anesthesia during this second surgery, Brian had an endo-tracial tube place down into his throat and into the top of his airway. This tube was then attached to a respirator breathing machine. This was Brian’s only way of breathing. In the middle of this surgery, THE TUBE FELL OUT. The anesthesiologist who should have been watching Brian very closely claimed in his report that it was immediately re-inserted. But, that did not make sense. The surgeon said it was unknown how long the tube was out. And, Mr. Spencer noticed that the total time for the surgery was more than twice as long as it should have been.

Having found the medical error, Mr. Spencer now needed to determine whether this error caused an injury or not. Looking at the medical records prior to the tube falling out, it was clear that Brian had been doing very well. Doctor’s notes, and especially Nurse’s notes, showed that Brian was “very active,” “kicking his arms and legs” vigorously, etc. It was clear that the treating doctors and nurses were very hopeful that Brian’s Spina Bifida was not going to cause any long term difficulties for Brian. Brian’s parents confirmed to Mr. Spencer that prior to that second surgery, everyone at the hospital was telling them that “Brian is fine.” After that second surgery, the language and the attitude changed dramatically as everyone now started speaking of a lifetime of severe handicaps.

The official medical records also confirmed that after the tube fell out, Brian’s medical condition changed dramatically. He went from being an alert baby who was actively moving his arms and legs, to a baby who was nearly comatose, who hardly moved at all. Within a short time he developed seizures, which are a classic sign of a lack of oxygen injury to the brain. CT scans of Brian’s brain confirmed that he had been massively brain injured.

The defense started the case as a “no pay” case where they insisted they would offer nothing to settle the case. After Mr. Spencer started the case, an offer of $200,000 was made. Because such a small amount of money was really of no benefit to Brian, his parents agreed with Mr. Spencer that the offer should be rejected. At the close of the case, the jury awarded Brian $10,000,000.00.

With that money, Brian’s parents were able to get him the therapies that he needed. Brian was never able to walk without assistance. But, he could get out of the wheel chair. And he learned to speak very well. Mr. Spencer recalls Brian and his family coming to his home for a celebratory back yard barbeque after the trial. From his wheel chair, when he first saw Mr. Spencer, Brian held his arms open and gave Mr. Spencer a big hug. As he did, in a voice that was very difficult to understand, he said, “Mr. Spencer, I love you.”

Mr. Spencer stayed in contact with the family. When Brian was about 16 years old, Mr. Spencer recalls a phone conversation where “It was like talking to any other bright, well spoken teenager.” The therapies they could now afford had worked amazingly well. Brian was able to talk like all his friends.

Brian’s Mom later told Mr. Spencer of how Brian had become such a popular high school student. One story that particularly stands out has to do with a “public speaking” class that Brian signed up for. The teacher at first thought the class was not likely a good one for Brian. But, by the end of the term believed Brian was a great student who contributed greatly to the course. As was typical, the teacher found reluctance by the students to “go first.” She was quite surprised when Brian volunteered. He prepared and gave a very good oral presentation. Afterwards, he told his fellow students, “Now that I did it----you can all do it too!”

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