Jury orders hospital to pay $26.1 million

Children’s Hospital & Medical Center on Wednesday held a grand opening for its new Hubbard Center for Children.
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.
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.”
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.
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.”
Creighton’s Arthur Kaluma (24) tries to get past Kennesaw State’s Nate Springs during their game at CHI Health Center in Omaha on Thursday.
Western Illinois’s Jadrian Flores (11) and Nebraska’s Alonzo Verge Jr. (1) react to a call during their game at Pinnacle Bank Arena on Tuesday.
Nebraska’s Cam Taylor-Britt walks off the field with Jaxon Edwards (left) and Peyton Edwards (right) at the end of his final game at Memorial Stadium on Saturday.
Portia Clayborne, a cook at the Siena Francis House, puts trays of food in an oven before dinner last month.
Cross County’s Cory Hollinger reacts to not being able to catch up to a third-down deep pass in the second quarter against Howells-Dodge during the D1 championship game on Monday.
Nebraska’s Cam Taylor-Britt breaks up a pass to Ohio State’s Chris Olave during the first half of their game on Saturday at Memorial Stadium.
Cross County’s Cameron Graham turns away as he listens to his coach Hayden Delano (holding runner-up trophy) talks to his team after losing to Howells-Dodge in the D1 championship game on Monday.
Nebraska’s William Przystup reacts after his blocked punt was returned for a touchdown during the fourth quarter of their game at Memorial Stadium on Saturday.
Nebraska’s Zavier Betts (15) eyes an official who threw a flag on Nebraska head coach Scott Frost for unsportsmanlike like conduct after Betts wasn’t able to make a catch in the final seconds of the Nebraska vs. Wisconsin football game at Camp Randall Stadium in Madison on Saturday. Wisconsin won the game 35-28.
Nebraska’s Levi Falck (88) and others walk off the field following the Nebraska vs. Wisconsin football game at Camp Randall Stadium in Madison on Saturday. Wisconsin won the game 35-28.
Nebraska’s Markese Stepp (30) leaps into the end zone in the Nebraska vs. Wisconsin football game at Camp Randall Stadium in Madison on Saturday.
Levi Voss, 8, fist bumps Huskers players with his dad, Tom Voss, of Oshkosh, Wis., ahead of the Nebraska vs. Wisconsin football game at Camp Randall Stadium in Madison on Saturday.
From left: Team Dropkin’s Tom Howell and Mark Fenner sweep a stone during the U.S. Olympic Team Trials for curling at Baxter Arena in Omaha on Tuesday.
Union Pacific workers drag a 40-foot-tall spruce tree through the front door of the Durham Museum on Monday.
Bennington’s Isaac Connor (2) and Seth Wempen (3) celebrate a win over Elkhorn at Badger Field in Bennington on Friday, November 12, 2021.
UNO Head Coach Derrin Hansen watches his team take onn Hastings on Tuesday.
UNO’s Felix Lemetti, left, tries to keep the ball away from Hastings’s Phil Cisrow on Tuesday.
Creighton’s Greg McDermott laughs at Ryan Hawkins during a game against Arkansas-Pine Bluff at CHI Health Center on Tuesday, November 9, 2021.
Creighton’s Trey Alexander reacts to Ryan Hawkins drawing a foul against Arkansas-Pine Bluff.
Creighton’s Ryan Nembhard attempts to keep control of the ball against Arkansas-Pine Bluff at CHI Health Center on Tuesday, November 9, 2021.
Nebraska’s Adrian Martinez takes the field before a game against Ohio State during their game on Saturday in Lincoln.
Nebraska Head Coach Scott Frost speaks with an official in the second half against Ohio State on Saturday.
Nebraska’s Samori Toure can’t catch up to a late fourth-quarter pass against Ohio State on Saturday.
Nebraska’s Adrian Martinez jumps up to high-five a young fan after their loss to Wisconsin at Camp Randall Stadium on Saturday.
Army National Guard Spc. Frank Stroup plays Reveille before the start of the Nebraska and Ohio State on Saturday.
Nebraska’s Adrian Martinez celebrates running in a touchdown in the third quarter against Ohio State on Saturday.
Ohio State’s Chris Olave (2) can’t get the the ball with Nebraska’s Myles Farmer (4) on him in the Ohio State vs. Nebraska football game at Memorial Stadium in Lincoln on Saturday. A pass interference call was made against Farmer.
Nebraska’s Samori Toure catches a pass for 24-yards as he gets hit by Ohio State’s Cameron Brown on their first drive on Saturday.
Fans tailgate in the east parking lot of Memorial Stadium before the Nebraska and Ohio State game on Saturday.
Elkhorn North’s Haylee Wolf reacts to a point against Norris at Pinnacle Bank Arena on Friday, November 5, 2021.
Omaha Westside’s Kyle Vincentini (20) celebrates his team’s win following the Omaha Burke vs. Omaha Westside NSAA Class A quarterfinal football game at Omaha Westside High School on Friday. Omaha Westside won the game 42-3.
Iowa’s Kyler Fisher celebrates after returning a blocked punt for a touchdown during the fourth quarter of their game at Memorial Stadium on Saturday.
Fans watch Elkhorn take on Seward on Friday.
Seward’s Christian Fields catches a touchdown pass late in the first half in front of Elkhorn’s Zach Leinen on Friday.
Cousins Flynn Jacobson, 8, and Nora Owen, 10, chat Thursday from their cars while waiting for the doors to open at Kohll’s Pharmacy near 127th and Q Streets. The two received their first doses of the COVID vaccine.
Irving Lopez skates at Millwork Park on Monday, Nov. 10, 2021. Millwork Commons, centered at 13th and Nicholas Streets in north downtown, has expanded. Millwork Park features a skateboard spot and basketball hoops and is preparing to build more housing.
Kaiden winces while getting the first dose of the vaccine from registered nurse Jerryl Thom at Kohll’s Pharmacy near 127th and Q Streets in Omaha on Thursday, November 04, 2021. Children ages 5-11 are now authorized to get the Pfizer COVID-19 vaccine.
Walt Coy, 103, was drafted into the U.S. Army in 1944 and left as a sergeant. Photographed at his home, which he built himself, in Omaha on Wednesday.
Nebraska’s Luke Reimer celebrates after breaking up a pass to Ohio State’s Jeremy Ruckert during the first half of their game on Saturday at Memorial Stadium.
Creighton’s Ryan Hawkins celebrates after Creighton takes the lead late in the second half of their game against SIU-Edwardsville at CHI Health Center on Saturday.
Nebraska’s Luke Reimer tries to break up a pass to Sam LaPorta’s during the first half of their game at Memorial Stadium on Saturday.
Bennington’s Luke Macdonald celebrates with fans after defeating Aurora in their Class B State Title game at Memorial Stadium on Monday.
cooper@owh.com, 402-444-1275, twitter.com/CooperonCourts
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Reporter – Courts
Todd Cooper covers courts, lawyers, trials, legal issues, the justice system and government wrongdoing for The World-Herald. Follow him on Twitter @CooperonCourts. Phone: 402-444-1275.
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