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Jury orders Children's Hospital to pay $26.1 million for failing to treat infant's seizures

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A jury awarded a record $26.1 million medical malpractice judgment Monday against Children's Hospital & Medical Center for failing to properly treat a child who suffered seizures after a fall at a Sarpy County day care. 

After a two-week trial and two days of deliberations, a jury ruled that Children's Hospital and Dr. Heidi Killefer improperly discharged Vivianne T. Marousek after the head trauma that resulted in the then-11-month-old suffering seizures at the hospital.

An earlier emergency room physician had properly treated Vivianne, said Patrick and Joseph Cullan, the Omaha attorneys who represented Vivianne and her parents, Andrea and Jacob Marousek. But when Killefer took over her care in January 2017, she concluded that the child had suffered a one-off seizure that wouldn't persist, Joe Cullan said Monday. She released the child from the hospital. 

Within 48 hours of her parents taking her home, the child suffered severe seizures and irreparable brain damage, Cullan said. 

"Every expert we had said you never give a child a free pass — you treat the seizures," he said. "Our clients were told, 'Don't worry about it, she'll be OK.' She suffered profound seizures and will never be the same." 

Cullan said Vivianne, now almost 6, was healthy before the accidental fall. The child is now blind, only able to make out the outlines of her parents. She is in a wheelchair, suffers essentially from a form of cerebral palsy, and is unable to communicate other than to hear her parents' voices. 

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Jurors deliberated 10 hours before voting 10-2 to find Children's Hospital and Killefer responsible. While juries in criminal trials must be unanimous, civil juries are allowed to vote 10-2 after eight hours of deliberations. 

The jury awarded $21.5 million for ongoing medical care and damages for Vivianne and $4.6 million to her parents. Cullan said the child's need for around-the-clock medical care will require many millions of dollars over her lifetime.  

When it comes to Nebraska verdicts, the $26.1 million tops the $17 million a federal jury awarded another of the Cullans' clients in an August 2015 trial over a baby who suffered brain damage during childbirth at the Bellevue Medical Center. 

In a prepared statement, Children’s Hospital & Medical Center said, "We appreciate the time and effort the jury put into this case, and we sympathize with this child. We strongly maintain that the evidence presented clearly showed that our team provided the appropriate standard of care. We stand with our providers and staff who are dedicated to delivering exceptional care to every patient and family we serve."

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Pat Vipond, an attorney for Children's Hospital, and Killefer could not be reached Monday evening. Vipond is expected to ask Judge Jim Masteller to impose Nebraska's $2.25 million cap on medical malpractice verdicts. That would reduce the total award to $4.5 million — $2.25 million for Vivianne and $2.25 million for her parents. Cullan said he will ask Masteller to declare the cap on medical malpractice verdicts unconstitutional, noting that a lifetime of medical bills will far exceed the cap. 

He said Children's Hospital compounded the toll on his clients by suggesting that the child could have suffered from child abuse at the hands of her parents or babysitter. Although Sarpy County authorities cited the babysitter, they later dismissed that case. Cullan said "there was absolutely no evidence" that the child suffered from anything other than an accidental fall. Cullan said the child had been standing on a toy when she fell and hit her head on the floor. She did not suffer a skull fracture. 

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Cullan said the brain damage occurred because Children's didn't monitor the child and use anti-seizure medication. Experts testified that continued monitoring and use of anti-seizure medication would have given Vivianne's brain time to heal, he said. Instead, the seizures caused so much brain damage that she will never be the same.

"She suffered a horrible, horrible brain injury," Cullan said. "The only cause of that is that Children's sent this child home when they never should have sent this child home." 

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