HIOJ: The Defendant’s Medical Records V. The Facts

HOW I OBTAINED JUSTICE

The Defendant’s Medical Records V. The Facts

By Geoffrey Pope & Marc Howard

Gorodenkoff/Shutterstock.com

In 2012, a referring lawyer brought Terri Franklin to our office. Terri was a 31-year-old who had given birth less than a year earlier to a little girl named Kendyl. During her pregnancy, Terri had taken the teratogenic blood pressure medication Benicar. Also during her pregnancy, Kendyl sustained serious kidney damage and had a stroke. We learned that Terri’s obstetrician, Alvin Sermons, had recorded in his chart on the very first OB visit “d/c BP meds”. Terri’s primary care physician, Lonnie Jenkins, had prescribed the Benicar and numerous refills. Terri refilled the medication throughout her pregnancy. The father, Komarta Gorman, was heavily involved throughout the pregnancy and shortly after Kendyl was born. Unfortunately, the relationship did not survive Kendyl’s injuries, and it was severely strained when we first met Terri.

At our first meeting, Terri was highly organized. She brought every appointment card she received from Dr. Sermons, a couple of her more recent Benicar bottles, and a determination to fight for her daughter. We had Dr. Sermons’s records from the referring lawyer, so we knew he was going to say he had told her to stop the Benicar. Terri was adamant this did not happen. She told us that during the first OB visit on September 13, 2010, she and Dr. Sermons discussed Benicar. He told her, “There are only about three blood pressure medications that pregnant women take, and Benicar is not one of them. We’ll watch you and switch it down the road.” She said that Komarta was present at the first visit. Komarta asked Dr. Sermons about the Beniar on a subsequent visit a month or two later, and Dr. Sermons again replied, “We’ll deal with it down the road.”

On March 3, 2011, Terri was around 30 weeks pregnant and returned for a visit. Her blood pressure was high. She explained she hadn’t taken her blood pressure medication that day. According to Terri, Dr. Sermons seemed surprised, “What blood pressure medication are you taking?” When she answered “Benicar”, Dr. Sermons asked, “How do you spell it?” but didn’t seem concerned and told her to come back in two weeks. She left the office with an appointment card. According to her, Dr. Sermons called her on her cell phone that afternoon and asked her to go to a maternal fetal medicine specialist the next morning. Before 7:00 a.m. the next morning, Dr. Sermons called again and told Terri he was worried and that she should go straight to the hospital. He instructed her to falsely tell the hospital personnel her baby was not moving, so she would get an emergency ultrasound. The ultrasound showed minimal amniotic fluid and kidney damage, leading to Terri’s admission at Northside. She went into premature labor a few days later, and Kendyl was born by C-section on March 10, 2011.

After that first meeting, we saw lots of potential pitfalls before we could file suit. An obvious one was Komarta. He and Terri were not speaking, and he was a central witness. He seemed relieved when I contacted him and was eager to be involved in his daughter’s life. Komarta’s version of events matched Terri’s. He added that the reason he approached Dr. Sermons about Benicar in the fall of 2010 was because he had learned of the risks of Benicar and confronted Terri with them. She said she trusted Dr. Sermons, so Komarta raised the issue with him.

We felt like we had good clients who were telling the truth. We filed suit knowing we were taking on the medical records and a very likable and respected obstetrician.

THE DEFENDANT

Dr. Sermons is a likable African-American gentleman with a compelling story. He grew up in largely-segregated South Georgia, graduating from high school in the late 1960s. He attended Valdosta State, eventually becoming a pharmacist before attending medical school. He has maintained a solo obstetrical practice his entire career and held a host of leadership positions at various hospitals and in the OBGYN community.

He has a VERY different version of events. On the first visit, he recalls Terri telling him that she had bad morning sickness and had not taken her blood pressure medication the last several days. Dr. Sermons noticed that her blood pressure was normal even without the medication, so he thought she might be ok without medication. He says he told her to stay off the blood pressure medication and see how her blood pressure responded. If it became elevated, he would start a pregnancy-safe medication such as Labetalol. He claims he told Terri, “Benicar does horrible things to babies– anywhere from decreased fluid around the baby to unexplained fetal death.” His office note for that visit ends with “d/c BP meds” and “consider Labetalol”. But, Terri’s pharmacy records showed that Terri left Dr. Sermons’s office – after supposedly receiving a stark warning – and went to the pharmacy to refill her Benicar prescription.

Predictably, Dr. Sermons denied that Komarta or anyone else ever raised Benicar until the last visit. His version of the last visit was also very different. He claims when he learned Terri was still taking Benicar he hit the roof, “What the f&^! I told you to stop taking that!” He told her not to make another appointment with him because he’d get her into the specialist immediately. He minimized the appointment card for two weeks later, saying the staff must have made one out of habit. However, earlier in the deposition, he had testified that the appointment cards were given to patients based on what he told the staff. At trial, the appointment card played a big role in a very difficult cross.

TERRI AND KOMARTA’S DEPOSITIONS

Terri and Komarta did terrific jobs at their depositions, but the process was not without fireworks. Terri and Komarta were hardly on speaking terms. A joint preparation meeting almost broke up because of disagreements, but they put aside their animosity and focused on Kendyll. By the time of trial six years later, they had become wonderful co-parents who respect each other.

During one prep session, Terri disclosed that she had four pregnancy terminations before her pregnancy with Kendyl. She was embarrassed and had not disclosed them to Dr. Sermons because she did not want Komarta to know. Dr. Sermons attended the depositions, and defense counsel covered all four terminations in detail. They seemed irrelevant to any issue. Indeed, no lawyer, expert, or anyone else mentioned the pregnancy terminations until just before trial.

PROVING KENDYL’S INJURIES

Kendyl was in and out of the hospital during the first year of her life until a feeding tube led to nutrional balance. When we first took the case, it appeared unlikely Kendyl would ever live on her own or hold a job. However, Terri, Komarta and both of their parents worked very hard to give Kendyl the best chance in life. They shuttled Kendyl to therapy sessions and worked tirelessly on their own with her. With such dedicated family support, Kendyl steadily improved. She enrolled in a normal school and won academic awards. At trial, Kendyl was eight years old and adorable. The only striking abnormality is that she is very small. Otherwise, nothing betrays Kendyl’s serious injuries.

The defense agreed Kendyl’s kidney damage stems from Benicar. She has insatiable thirst and urinates frequently. At eight, she still wears pull-ups at night. Her nephrologist testified she would almost certainly need a kidney transplant before she turned 18. She also testified that Kendyl’s kidney issues caused her growth restrictions. Kendyl was on track to be just 4′3″ tall, so she began taking growth hormones. The hormones worked, and Kendyl began growing. Her endocrinologist testified that she would likely end up between 4′8″ and 4′10″, which is not a bad outcome given that her mother is only 5′0″ tall.

The defense vigorously disputed that the Benicar caused Kendyl’s in utero stroke. Kendyl was born premature at 32 weeks, and the placental pathology showed inflammation in the placenta and umbilical cord. The defense claimed the combination of prematurity and infection was the likely cause of the stroke. They noted that Benicar has never been shown to cause an in utero stroke, but infection and prematurity have high associations with stroke. Kendyl’s treating neurologist, Frank Berenson, strongly supported our position that Benicar caused the stroke. He testified that the same action that harmed the kidneys, low blood pressure, caused Kendyl’s stroke.

THE TRIAL

Overview
The trial was in Dekalb County before Judge Johnny Panos. Our jury was typical of DeKalb with a good mix of professionals (including a speech pathologist at Emory) and blue collar workers, but was unusual in that there were eleven women and one man. The defense made no offer until jury deliberations despite Dr. Sermons only having $1 million in insurance. The verdict was for $12 million, $11 million for the child’s claim and $1 million for the minor’s medical expense claim. The jury apportioned 54 percent fault to Dr. Sermons and 46 percent to Terri, so the eventual judgment was for $6,480,000. Rather than give a blow-by-blow, we will describe how we addressed key issues.

The last-minute attempt to insert abortion into the case
On the Thursday before trial, the defense served a supplemental disclosure. It claimed an expert had a new opinion that Terri’s history of D&C procedures made her prone to premature delivery. In addition, it said Dr. Sermons planned to testify that if he had known of Terri’s pregnancy terminations he would have referred her to a maternal-fetal medicine specialist for a cervical sufficiency evaluation. We argued that these new “opinions” were a pretext to admit evidence of abortion. We pointed out that Dr. Sermons was present at Terri’s deposition when she disclosed the pregnancy terminations. For over six years, he had failed to supplement a number of interrogatory responses, including any negligent acts by Terri that caused the injuries. Judge Panos held that the pregnancy terminations were excluded for two independent reasons: (1) the probative value was substantially outweighed by its prejudicial effect and (2) the failure to disclose the opinions for several years was a discovery violation that warranted exclusion.

Terri v. the Medical Records
We expected the defense would parade the 9/13/10 office note before the jury as “proof” of Dr. Sermons’s version of event. We took the position that the most important record in the case was Terri’s prescription record showing she left Dr. Sermons’s office on 9/13/10 and refilled the Benicar. It makes no sense that a newly-pregnant mother would hear the stark warning Dr. Sermons supposedly gave and then go straight to the pharmacy to get the medication that would “do horrible things” to her baby.

We agonized throughout about whether to obtain a forensic document analysis of the 9/13/10 office note to see if we could show the key lines, “d/c BP meds” and “consider Labetalol”, were added after the fact. We ultimately decided against doing so. We told the jury that the prescription record proved Dr. Sermons did not provide the warning he claimed, so his office record could only mean one of three things:

(1) Dr. Sermons intended to tell Terri to stop the Benicar but did not;

(2) The record is consistent with Terri’s testimony that down the road Dr. Sermons intended stop the Benicar and consider Labetalol; or

(3) Dr. Sermons added the lines after-the-fact.

We argued, “We don’t know which of these is correct, but we do know for certain that Dr. Sermons did not tell her to stop. The prescription records prove it.”

Cross of our clients
The defense went full bore after Terri and Komarta. The defense scored points by pointing out that every time Terri filled a Benicar prescription she received prescribing information containing a stark warning not to take during pregnancy. Terri admitted she did not read the material and also acknowledged that she did no internet research even after Komarta confronted her about the potential dangers. Consistent with our focus groups, the jurors found this attack persuasive and apportioned 46 percent fault to Terri.

Other topics on cross were substantively insignificant but made the clients look bad. For instance, when getting an ultrasound at another office, Terri left the “significant other” blank empty. This oversight became fodder for all sorts of insinuation. Komarta had to get a paternity test in connection with child support issues, and the defense asked about it. In general, Terri and Komarta held up well. We later learned that the barrage of ticky-tack embarrassing matters did not play well with a number of jurors.

Crossing Grandfather a/k/a Dr. Sermons
We called Dr. Sermons on cross in our case and felt like it went well. When the defense called him on direct, it was an entirely different story. He was charming, likable, and even inspirational. We knew we faced a very challenging cross. We started with a minor point from his direct and built from there. Dr. Sermons had testified on direct that for 30 years his daily schedule was to work until well into the evening, get to bed around 11 or 12, and then get up at 4:30 a.m. to exercise. We complimented him on this schedule, hoping the jurors would see it as stretching the truth. Then, we slowly made our points, building to the end.

We ended the cross where the case had begun when we first met Terri – the appointment cards. Dr. Sermons swore the appointment card Terri received to return in two weeks was a mistake by staff. We then played a video clip from his deposition showing a calm Dr. Sermons explaining that he tells the office staff when the patient should return before they complete the appointment card. At trial, Dr. Sermons responded angrily, repeatedly blaming his staff.

The Damages Case
The primary issue for damages was the significance of Kendyl’s brain injury. We used two powerful demonstratives. First, we used a terrific medical illustration of her brain MRI to show the areas of damages. Her neurologist was our first witness, and he used this demonstrative for much of his testimony so the jurors would see that the brain sustained a serious injury. Second, we used a chart to allow our neuropsychologist, Thomas Burns, to explain Kendyl’s strengths and weaknesses. The chart provided a great visual for the jurors to see that Kendyl did well in some areas and poorly in others. It also allowed Dr. Burns to come across engaging and understandable even when explaining difficult matters.

Our trial team included Darren Summerville, who was indispensable in dealing with a myriad of legal issues.

CONCLUSION
Nothing is more important than good clients, and this case proves that. Although it was frustrating to have a case pending seven years, this time allowed us to see Terri, Komarta, and Kendyl grow and mature. They were dealt a horrible hand but responded by placing Kendyl first and have become wonderful co-parents. Clients like Terri and Komarta are an inspiration and an honor to represent. It is tremendously gratifying to help present their story to a jury and achieve a just result.


ABOUT THE AUTHORS

Marc Howard has been a trial attorney since 1993, specializing in serious injury cases. He has been named a Top 100 Super Lawyer and listed in Top Verdicts magazine multiple times. He is a member of the American Board of Trial Advocates, and he has served on the State Bar Board of Governors since 2010.

 

 

Geoffrey Pope is a partner at Pope & Howard, P.C., which focuses exclusively on representing people catastrophically injured or killed due to the negligence of others. He is a graduate of the Trial Lawyers College, a Past-President of the Georgia Trial Lawyers Association, and is regularly named to such designations as Superlawyer and Georgia Trend’s Legal Elite.

 

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