1

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 APPEARANCES:

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI EASTERN DIVISION

WENDY CHICKAWAY, ET AL vs. UNITED STATES OF AMERICA Civil Action No. 4:11CV22

COURT REPORTER'S TRANSCRIPT OF CLOSING ARGUMENTS BY PLAINTIFF BEFORE HONORABLE CARLTON W. REEVES UNITED STATES DISTRICT COURT JUDGE August 16, 2012 Jackson, Mississippi

MR. MATTHEW W. KITCHENS MS. LAURIE M. HIGGINBOTHAM MR. TOM JACOB Attorneys at Law Representing the Plaintiff MS. MITZI DEASE PAIGE MR. DAVID H. FULCHER Assistant United States Attorneys Representing the Defendants COURT REPORTER: Brenda D. Wolverton, RPR, CRR Jackson, Mississippi

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. JACOB:

May it please the court.

Your Honor, at

the beginning of this trial, Ms. Higginbotham explained that we were here in court today because Choctaw Health Care providers chose not to rule out a bacterial infection in Brandon Phillips' hip. And I think that's what the evidence in this

trial has borne out. You heard from two double-board certified doctors, both of whom have dozens of peer-reviewed publications to their name, Dr. Spangler and Dr. Shore. And they told you that it

was a violation of the standard of care to discharge a child who could not walk who presented with all the signs and symptoms of a septic infection without first ruling out the most dangerous and life threatening thing on Brandon Phillips' differential diagnosis, and that was a septic infection in his hip. Your Honor, Dr. Spangler explained that this infection was a bright strobe light right in front of their faces and they missed it. And it wasn't just Dr. Spangler and Dr. Shore

who discussed all of the signs and symptoms; it was also the literature that called this disease a diagnosis not to miss. Your Honor, the inability to bear weight. And this is

a quote directly from the literature that was read into the record. "Inability to bear weight is a sign of a serious

pathology until proven otherwise." Your Honor, it wasn't just our witnesses and the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

literature that agreed with our position in this case, but it was also the defendant's own witnesses who gave us rule after rule after rule. Everyone agrees that these are the rules that You rule out the

should apply, particularly the first rule. worst first.

You rule out the most dangerous, life threatening And to do that, a

conditions on a child's differential.

provider should consider all symptoms when attempting to diagnose a disease. Your Honor, there is a lot of agreement on the basic medical facts in this case that form the foundation of our case. There is agreement that Brandon died of septic shock.

You heard that from both defense witnesses and plaintiff witnesses. There is agreement that antibiotics would have most

likely, more likely than not, to a reasonable degree of medical probability have saved Brandon Phillips' life on April 7, 2007. Dr. Hannapel, the defendant's family practice expert, had to admit that on the stand. Even on the issue of breach,

there is agreement between defense witnesses and plaintiff witnesses that Brandon Phillips presented with multiple signs and symptoms of a septic infection. Dr. Hannapel told this

court that he believes the cardinal symptoms of a septic infection are pain in the hip and the inability to tolerate weight, the inability to walk. And by now I think the evidence

has shown that Brandon Phillips had pain in his hip and Brandon Phillips could not walk.

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

There is also agreement, Your Honor, on what can be done to rule out a bacterial infection and what can be done -what can be done that doesn't rule out a bacterial infection. Defendant's expert radiologist explained that the films in this case can be used to rule in a bacterial infection but they can't be used to rule out a bacterial infection. Your Honor, we have heard from witness after witness that a normal CBC, the lack of a fever, does not rule out a bacterial infection. But we have also heard what does rule out We have heard that a blood culture or We have

a bacterial infection.

mouth swab, those will rule out a bacterial infection. heard aspiration of the hip will rule out a bacterial infection. We have heard that an MRI was recommended.

Your Honor, these were all steps that Choctaw Health Care providers could have taken. front of their face. The strobe light was right in

It was flashing, and they chose not to

take these steps to rule out a bacterial infection in Brandon Phillips' hip. I think the disagreement in this case has been do you give life-saving antibiotics to a child with a bacterial infection. Now, we have had providers agree or we have had

witnesses agree that the rule is a provider should give antibiotics to a child with a bacterial infection. I answer that question, I want to make one point. And before And that is

there is no question by today that Brandon Phillips did have a

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

probable bacterial infection on April 7th of 2007. Robbie, if you could play the next slide? Both Dr.

Yedlapalli -- both Dr. Yedlapalli and nurse McDonald told us in trial that Brandon Phillips had a probable bacterial infection on April 7th and they knew that then. about it? But what did they do

They didn't give Brandon Phillips antibiotics.

And, Your Honor, the defense in this case has been a "yes but" defense. Yes, he had a probable bacterial infection, Yes, his blood work was Yes,

but he didn't have a fever.

left-shifted, but his white blood cell count was normal. his sed rate was double the normal rate, but it wasn't quadruple the normal rate. They have their blinders on. They are focused

intently on a group of criteria that you have heard about from the defense throughout this trial. But I think their own

witnesses -- Dr. Hannapel said it when he said when you don't look at the whole picture, it does a great injustice. Your

Honor, by focusing with their blinders on, by focusing on only the fever and only the normal white blood cell count, they miss the dozen or so other symptoms that Brandon Phillips presented with which everyone agrees are signs and symptoms of a bacterial infection. What you see, Your Honor -- we're having a little tech trouble here, but what you see when you look at the whole picture, when you look at Brandon Phillips' entire presentation

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

is that Brandon Phillips had a bacterial infection.

And when

you consider the fact that he was unable to tolerate weight on his left hip, that his blood work was left-shifted, the only conclusion that you can reach is that that bacterial infection was in his hip. When nurse McDonald testified, she talked about how she knew he had a bacterial infection but she didn't know where it was. Where else could it have been? You heard from Dr.

Spangler who in talking to Mr. Fulcher he said that it was astronomically unlikely that this child presented with this constellation of symptoms and that it was anything other than a septic hip. And, Your Honor, this VIN diagram is important

because what this VIN diagram lists are the symptoms that Brandon Phillips presented with that could have only come from an infection. Now, I know the defense wants to talk about trauma causing slight elevations in the left shift, but you heard what kind of trauma that's needed to cause that kind of symptomology. You heard that you needed a gunshot wound. It

was not the type of trauma that Brandon Phillips certainly presented with. What you have is a little boy with sign after

sign and symptom after symptom of a bacterial infection in his hip and the providers at Choctaw choosing to ignore it. Your Honor might be wondering how could this happen, how did this happen, how did they miss such an obvious

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

presentation of septic hip.

And my answer to that question is

you saw how in the testimony of Dr. Yedlapalli, Dr. Yedlapalli who took the stand and told this court that Brandon Phillips could bear weight on his left hip even though that's not what the records say, even though radiology report after radiology report. One of the radiology reports that nurse McDonald

admits that she saw say that Brandon Phillips was unable to walk. And then Dr. Yedlapalli said that the other thing that

made him rule out a bacterial infection is the fact that Brandon Phillips had a C reactive protein test done. Honor, we know now that that's just not true. evidence of that in the medical records. And, Your

There is no

And defense's other

witnesses agree that was not a test performed on Brandon Phillips. Dr. Yedlapalli missed this diagnosis because he was not paying attention. He simply was not paying attention. He

didn't know the signs and symptoms Brandon Phillips presented with, and that's why he missed the diagnosis. And nurse McDonald, even though she had an independent duty to her patient, decided to rely on Dr. Yedlapalli's judgment. When I talked to nurse McDonald, you saw today that

there was a review of symptoms, a list of check-boxes that she could have checked. And with a boy presenting with a problem

with his gait, nurse McDonald decided not to examine this little boy's gait. And there are only two reasons why she

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

decided not to do that.

Either she was negligent or she knew

Brandon Phillips could not walk, in which case she was negligent for not giving him antibiotics, for not diagnosing that bacterial infection in his hip. Your Honor, that brings me to the issue of causation. And this is fairly undisputed. Dr. Hannapel, plaintiff's --

both of the plaintiff's expert witnesses all agree to a reasonable degree of medical certainty that Brandon Phillips would have been saved if broad spectrum antibiotics had been prescribed. And we know from the literature and this was read

into the record you do not have to wait until you identify the bacterial infection before you give antibiotics. that's what Neshoba did the very next day. In fact,

They didn't have a

culture, but they did have a little boy who didn't have an elevated white blood cell count. They had a little boy who

didn't have a fever, yet Neshoba decided to give Brandon Phillips antibiotics because they saw the signs and symptoms. But as Dr. Hannapel and both Dr. Shore and Dr. Spangler testified, it was just too late by then. I will talk to you a little bit about damages. Damages, like a lot of the medical cases and medical facts in this case, are largely uncontested. At the very least, the

defense has not put on evidence contradicting the medical damages in this case. Now, ideally I can't imagine what Wendy

is going through sitting here listening to even me talk, let

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

alone defense counsel and the witnesses. she has lost is unmeasurable. back.

But I know that what

We can't bring Brandon Phillips

The only remedy that the law affords in this case is But on top of attempting to compensate this

money damages.

family for the loss of this little boy, the damages in this case can be a wake-up call to this health facility. They can

be a wake-up call because even after all of this, even after five years in both administrative and litigation, they can't point to a single thing that they believe they did wrong. I don't know if you remember the testimony of Dr. Hannapel, Your Honor, but Dr. Hannapel said Brandon Phillips got the care he needed and then just a few minutes later said that Brandon Phillips' life could have been saved by antibiotics. Wendy has had to sit through this entire trial

listening to that testimony. Your Honor, the damages in this case are pretty significant, but I think the biggest element of damages in this case are the human losses, the noneconomic losses in this case. And I want to talk briefly about that before I conclude. The human losses are the greatest. you an example of what I mean by this. And let me give

If you are sitting at

home late one night and you get a call that someone that you love, a parent, a child, someone that you love has been hurt in an accident, the first thing on your mind isn't what's their lost earning capacity. The first thing on your mind isn't how

10

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

much are the medical bills going to be. your mind is: injured? Are they okay?

The first thing on Are they

Are they hurt?

What's wrong?

That's why the human losses in this

case are significant.

And, Your Honor, in this case, we have a

12-year-old boy who over the course of two months spent every moment in a pediatric ICU, every moment fighting for his life. You heard the testimony about how Brandon Phillips was able to respond to both health care providers and Wendy's mom. That's

how they communicated with Brandon during this time by having Brandon blink or look around, because from head to toe, Brandon was covered in tubes and whatever medical technology they needed to attempt to save his life. And over the course of that two months, his hands turned green, dark black, and died. You heard Wendy's

testimony how she had to bury Brandon within a day because his body was deteriorating. Those are the human damages in this

case, and those are worth well over $500,000. Your Honor, this case is about Brandon Phillips. is Brandon's case. Brandon. This

I don't know if I will be able to speak for All I can say is that this case

I don't think I can.

has to be Brandon's legacy.

Brandon's legacy has to be that Your Honor, the

this does not happen to another little boy.

court gets to choose that legacy by choosing the rules that apply to health care professionals that are presented with all of the signs and symptoms of a septic hip. On one hand the

11

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

court can choose a set of rules that will make the world a safer place to live in, or they can choose a set of rules that will make the world a more dangerous place to live in. THE COURT: MR. JACOB: Two minutes, counsel. These rules, Your Honor, these rules that

every single person with medical expertise agrees on, these rules make the world a safer place to live in. And had Choctaw

Health Care providers followed these rules, had they ruled out a bacterial infection in Brandon Phillips' hip, had they considered all of the signs and symptoms, had they given Brandon Phillips antibiotics and the treatment he needed that Easter weekend, Brandon Phillips would still be alive today. Brandon Phillips would be a senior in high school. Wendy might

be watching Brandon Phillips next spring walk across the stage in his cap and gown. Wendy might be helping Brandon Phillips

right now instead of sitting in this courtroom listening to lawyers and doctors talk. a college. But that future, that relationship, never got to happen. Wendy never gets to see her child grow up. Wendy Wendy might be helping Brandon pick

never gets to see Brandon Phillips get married.

Brandon never

gets to have that continued relationship with his mother and his siblings because of the negligence of Choctaw Health Care providers. And for that reason, Your Honor, we ask that this

12

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

court enter a judgment and find Choctaw Health Care providers liable for the negligence that resulted in Brandon Phillips' death. (WHEREUPON CLOSING ARGUMENTS BY DEFENDANT WERE PRESENTED BUT ARE NOT INCLUDED) MR. JACOB: Your Honor, what you heard about today

from defense counsel was about the team of providers that took care of Brandon Phillips. Zatorski and Dr. Greene. Angela McDonald, Dr. Yedlapalli, Dr. Isn't it funny, Your Honor, that the

only folks that showed up to defend this care were the folks associated with Choctaw? MS. PAIGE: empty chair. Objection, Your Honor. Talking about the

He can't do that in trial, Your Honor. Objection overruled. Your Honor, if this care was so good, if

THE COURT: MR. JACOB:

this care exceeded the standard of care, where are Dr. Zatorski and Dr. Greene? They spent half of their closing talking about

how Dr. Zatorski, half of their team, Dr. Zatorski and Dr. Greene signed off on this care, thought that there was a gathering, they made it seem like, that these folks got together and collaborated on this care. The reason they are

not here defending this care, Your Honor, is because this care is indefensible. There is no defense to the breaches of the

standard of care at Choctaw Health Care Center on April 4th, 2007, that led to Brandon Phillips' death.

13

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

They want this court to make the same mistake that those folks made on April 7th of 2007 by focusing on only four criteria, not looking at the whole picture. They want this

court to ignore the dozen or so other signs and symptoms, signs and symptoms that everyone agrees are signs and symptoms of a bacterial infection in the hip, of septic hip. court to make the same mistake they made. to turn Brandon Phillips into a statistic. They want this

They want this court Brandon Phillips is

a specific boy with a specific set of conditions, symptoms, signs, and a specific name. Your Honor, hold the government responsible for their breaches in the standard of care and enter a judgment in the amount of $1,903,961.

14

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

CERTIFICATE OF REPORTER

I, BRENDA D. WOLVERTON, Official Court Reporter, United States District Court, Southern District of Mississippi, do hereby certify that the above and foregoing pages contain a full, true and correct transcript of the proceedings had in the aforenamed case at the time and place indicated, which proceedings were recorded by me to the best of my skill and ability. I certify that the transcript fees and format comply with those prescribed by the Court and Judicial Conference of the United States. This the 24th day of August, 2012.

s/ Brenda D. Wolverton______ BRENDA D. WOLVERTON, RPR-CRR