Monday, April 13, 2015

Ten Years Ago - Day Four

April 13, 2005

Day Four

This day was going to be hard to get through. My heart was beating out of my chest when I took my seat at the front. Damon was quiet this morning.  The defense was going to make this look like we slapped her, banged her head against the wall, shook her, and all the other horror stories that I had heard before of abuse.  I hate that they had the last “ups”.  Whatever they said last, I felt, is what the jurors would remember. I was helpless.

They called an expert from a genetic center.  I was familiar with this particular one because it was strongly suggested for me to receive counseling and testing from there.  So for them to call someone from there was confusing. They have no records on us.  The attorney for the doctor asked questions about “studies” and past testing from others and how this case compares. They were hoping for some genetic connection for what happened to Lizzy. I wasn’t impressed and this expert was weak and seemed to hurt their case. The next person they called up was a nurse that was on the floor that night. They asked questions to build up the doctor. What kind of doctor she was? Has she ever had any problems with other birthing experiences? Does she conduct herself in a professional manner? Was she well respected in the community?  All great questions. Then my attorney asked two questions. Did she come into the hospital when you called her at 2:00 am? No sir. Did she come in to the hospital when you called her at 5:00 am? No sir.

 “No further questions, Your Honor.”

They called up the next and last witness. Surprisingly, we had only begun two hours before at that point. My doctor took the oath and then sat down. This wasn’t a criminal case so there was no harsh punishment if she were to lose. This was a malpractice suit, which was a lawsuit against her and the hospital.  The hospital settled a couple months before at our mediation.  Had she agreed to a settlement, we would have avoided court.  Our attorney walked out of our mediation and said, “How insulting, we are going to court!” He knew what he was doing but I was terrified.

I watched her on the witness stand. The way she blinked, moved her hands, adjusted in her seat, and the way her voice would crack. Again, they asked her questions about her stellar 25-year career. She mentioned that she delivered three babies that week with no problems. All healthy babies!! With a big smile on her face.  They asked her about the night I was there. She said she remembered getting those two phone calls but no one expressed any real concern about was going on. They referred back to her deposition now and then. In her career, no one had ever brought a lawsuit against her.

Then they rested and our attorney stood up and walked over to an overhead projector. He just stood next to it and asked her this question.

“When you performed the c-section and you pulled Lizzy out, what color was the amniotic fluid?”

I looked at Damon…confused…again.  Why on earth is this even a relevant question?

The doctor answered, “clear.”
Our attorney asked, “Are you sure?”
The doctor answered, “Absolutely clear.”

Our attorney then turned on the projector and displayed the doctor’s deposition. He then asked “can you read to us what you said in your deposition about the color of the amniotic fluid, please?”

The doctor puts on her glasses and reads it aloud.

                        “The amniotic fluid was slightly yellow.”

I heard “objection”, and “Your Honor, may I approach the bench”. It was clear that my doctor lied and they needed to do some damage control.  Hey, where did that big smile on the doctor’s face go? We rested after a few more questions.

This meant that the closing statements would begin. I was feeling better. Where did the abuse accusation go?

After both sides finished, the judge spoke to the jury, like she did everyday.  This time was different. They were to have lunch in the deliberation room. This is where they would decide on our case. Then they left. Damon and I quietly left and when down the street to a fast food joint and ate our lunch. We sat and talked for a while. Then we got a phone call. Our attorney was telling us that the jury had reached a decision and we should come back to the courthouse.  It had only been two hours.

We get back to the courthouse and sit down with our attorney in the middle of the room in one of the “pews”.  He told us that this was not a good sign. Only deliberating for two hours is worrisome. As we were talking, one of the female defense attorneys came over to me.  Put her hand on my shoulder, and said to me, “Mrs. Viele, I know that you are a good mom.” I said thank you and she took her seat. 

Everyone assembled back into the courtroom and there was silence.  The judge speaks to the jury and to the attorneys for a few minutes. Then it happened. The foreman handed the paper to the officer who handed it to the judge.  She reads it and gives it back. The officer hands it to another man (not sure who he was) and he reads it out loud.

“We the jury find in favor of the plaintiffs in the amount of ________________.”  (Our case was public and so you can just Google it)

Damon and I just fell into each other and sobbed. I mean full on sobbing! Our attorney and his wife were crying. The jurors were crying. It was surreal.

The judge basically released the jury and that really was it. We walked outside and some of the jurors were waiting for us. Crying and telling us they were praying for us. Telling us it would never be enough but gave us extra on top of what we were asking. 


We would have to go back to court in the next year and get Lizzy’s money.  The doctor was going to try and appeal it but never did. 

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