Health & Family

After death of unborn son, a rare courtroom victory in medical malpractice case

Johnna Hughes of Kansas City last month won a $2.5 million verdict in a medical malpractice and wrongful death suit against a doctor and a medical staffing service after her unborn son died. A memory box with a photo of Chayden Jayce McFadden was submitted as plaintiff’s exhibit 66.
Johnna Hughes of Kansas City last month won a $2.5 million verdict in a medical malpractice and wrongful death suit against a doctor and a medical staffing service after her unborn son died. A memory box with a photo of Chayden Jayce McFadden was submitted as plaintiff’s exhibit 66. tljungblad@kcstar.com

Johnna Hughes didn’t want to stop cradling her dead, frozen baby.

Only three days before, in the midst of a medical emergency, she had been told that her son, Chayden, had died inside her.

At 36 weeks, he had been perfect, strong and healthy. Hughes and her four daughters were so thrilled at the impending birth that a baby shower all but turned Hughes’ apartment into a Winnie the Pooh fantasy land, with a Pooh crib, highchair, bathtub, mobile and diapers.

After Hughes delivered her dead son on Sept. 23, 2010, nurses at North Kansas City Hospital kept Chayden’s body in a freezer. They placed the chilled body in his mother’s arms whenever she wanted, to allow her time to grieve and say goodbye.

She held Chayden for hours. He thawed in her arms. Nurses returned him to the freezer. She’d ask to hold him again.

“I did that for three days,” Hughes, 44, said recently in her Kansas City apartment, where she keeps her son’s ashes in a tiny blue box. She keeps pictures of Chayden on her walls, shelves, nightstand and as the central image on her cell phone.

“I didn’t want to let him go,” she said. “I knew that when I let him go, I would never get to see him gain.”

For six years she also never let go of the sense that her baby should not have died and that someone was to blame.

In a rare verdict in May, a Clay County jury agreed. It awarded Hughes $2.5 million, holding that emergency room physician Brandie Niedens and Midwest Emergency Services, whose doctors staff the hospital’s E.R., were liable for medical malpractice and the wrongful death of Chayden Jayce McFadden. The hospital was not named as a defendant.

The vast majority of medical malpractice cases are mediated or settled out of court. Hughes’ case is significant because, when such cases do go to trial in the Kansas City area, the defendants — physicians, nurses, paramedics and other medical practitioners — seldom lose.

Of 18 medical malpractice cases decided by Clay County juries in the last 10 years, Chayden’s death is only the second to go the plaintiff’s way, according to the Greater Kansas City Jury Verdict Service.

In Johnson County over the same period, juries decided for plaintiffs in zero of five medical malpractice cases. In Wyandotte County, the number is two of 21. Platte County: two of five. In Jackson County, considered the most plaintiff-friendly, 19 of 84 jury verdicts, about 23 percent, went for the plaintiff and against a physician or other medical practitioner.

“But even doctors make mistakes,” said lawyer Kathy Hagen, who represented Hughes with colleague Russell Dameron of the firm Watson & Dameron. “When they make a mistake, there has to be justice.”

Defense lawyers said they planned to appeal and offered limited comment.

“It is always a great tragedy when a life is lost,” Dawn Parsons, with the firm Shaffer Lombardo Shurin, said in an email to The Star, “but we do not believe Dr. Niedens was at fault for this child’s untimely death.”

But a jury — which found itself split 6-6 as deliberations began — eventually decided 9-3 that malpractice led to Chayden’s death.

Two jurors were so moved by the trial and Hughes’ story that they recently contacted her through Facebook, inviting Hughes to share hugs and dinner at a Mexican restaurant in Liberty.

“You know,” said juror Shannon Henry, 45, “through the whole trial, I never made eye contact with her. Until the very end, I didn’t cry. I was doing everything I was supposed to — very impartial. But it was so emotional when I left, I wanted to hug her.

“… Everyone I talk to, that can sit down and hear the whole thing, says, ‘Oh, that poor woman.’ They cry. They have so much compassion for what she went through.”

‘We finally got a boy’

Hughes, who was 38 years old in 2010, had worked various lower income jobs but primarily enjoyed caring for elderly adults in hospice.

She was unmarried, as she is now, and raising her three biological daughters, Chaynae, Chauntae and Chalaya, then between ages 19 and 4. She also had an adult stepdaughter, Brooke, who was 9 when Hughes, then 19, met Brooke’s father. The two divorced in 2004.

Hughes and her daughters were thrilled to know that she was having a son, the family’s only boy. She found out the gender around week 20 of her pregnancy.

“I cried and cried,” she said. “We finally got a boy. We were all so happy.”

She also knew to be careful with her high-risk pregnancy.

First, there was her older maternal age.

Second, Hughes had learned many years before, directly after her first daughter was born, that she suffered two blood-clotting disorders: Factor V Leiden, which could cause clots in veins, particularly during pregnancy, and Protein S deficiency, which also causes blood to clot quickly.

After three children, Hughes understood the care she needed to take. She went to her obstetrician, who had previously treated her high-risk pregnancies. She followed the recommendation to use a blood thinner. A lab monitored her blood readings.

“I knew what I was doing,” Hughes said.

Then, at about 35 weeks, agonizing pain struck her right side. She’d been coughing because of bronchitis and had been put on antibiotics and given an inhaler. But this went beyond coughing pain.

“I could hardly move, it hurt so bad. I could hardly stand it,” said Hughes, who called her doctor. “He said, ‘You probably pulled a muscle.’ 

But by 10 p.m. that Sunday, Sept. 19, Hughes was in such intense pain that she telephoned her mother, Harriett Ellis, who drove from her home in Excelsior Springs. Soon they were on their way to the E.R.

In the hospital

Hughes was worried about her baby when she arrived at North Kansas City Hospital.

Questions arose over whether she should first be seen in the E.R. or, because of the pregnancy, immediately go to labor and delivery to be checked and monitored.

The E.R. took the case. Sunday night rolled into Monday. Shortly after 1 a.m., Niedens, the E.R. physician, examined Hughes and ordered lab tests and a sonogram. She was made aware of Hughes’ clotting conditions and knew she was on a blood thinner. Tests showed her blood was not clotting quickly at all.

The doctor correctly diagnosed the problem: Hughes had gallstones and a hematoma, essentially a pocket of blood, on the inside wall of her abdomen.

“That was exactly right,” said Hagen, one of Hughes’ lawyers.

The issues of medical malpractice and wrongful death would arise from what happened next. In court, Hagen and Dameron argued that the standard way to know whether a hematoma is expanding or receding is to check its size with one or more additional sonograms.

“You have to monitor the mom,” Hagen said.

Instead — after a consultation with the doctor on call at Hughes’ obstetrical group — Niedens discharged the expectant mother with a prescription for pain pills. Tackling the gallstones would have to wait until the baby had been born.

Hughes arrived home about 5 a.m. Monday. She had an ob/gyn exam scheduled for 9 that morning. But because she was exhausted and had just left the hospital, she missed the appointment, a point the defense would raise in court.

Hughes remained in tremendous pain.

The next morning, Tuesday, Sept. 21, she failed to answer the phone. Brooke, her stepdaughter, became worried and headed to the home. She found her mother ashen, almost unresponsive. A short time later, an ambulance was speeding Hughes back to the E.R. at North Kansas City Hospital.

“She had lost more than 50 percent of her blood volume,” Hagen said. “She was dying. Her kidneys were shutting down. Her brain was affected.”

The hematoma on her abdominal wall had not shrunk. Instead, it had grown from the size of a fist to about the size of a volleyball; her tissue was filling as she was bleeding internally. From the E.R., she was admitted to the intensive care unit.

“She was fighting for her life,” Hagen said. “A minister came and gave her last rites.”

Hughes lived, but she was told her baby was dead.

“Chayden died of asphyxiation,” Hagen said. No blood flow, no oxygen.

Hughes’ labor, induced, lasted eight hours.

“I have a foggy memory,” she said recently. “When he did come out, I waited for him to cry. He didn’t. I waited, and waited and waited. He was so perfect. He looked so normal.”

Reaching a verdict

Taking medical malpractice cases to trial is often time-consuming and costly for plaintiff’s attorneys, who typically pay expenses upfront on the gamble that they can recoup those costs, plus fees, from a verdict that delivers a financial award.

The low chances of winning at trial can make lawyers reluctant to take cases that won’t be settled out of court. Lawyers like cases in which the facts are so clear, defendants will be motivated to more quickly come to a settlement.

“Eighty-five percent are losses for the plaintiff,” said Amy Gunn, a Missouri trial lawyer who specializes in medical malpractice cases for the Simon Law Firm in St. Louis. She has no connection to the Hughes case.

Part of the difficulty, Gunn said, lies in the fact that jurors hold great respect for doctors and the complicated and difficult jobs they do.

“In my opinion, doctors get the benefit of the doubt on most cases,” Gunn said. “Juries deciding against a doctor makes them feel vulnerable. People want to trust their doctors.”

Hughes approached five law firms before Watson & Dameron agreed to represent her.

“A baby had died unnecessarily and someone needed to try to something about it,” Russell Dameron said. “There is an element of taking a leap of faith on some of these cases.”

The trial, which began May 2, was decided on May 12. Jury deliberations took two days.

“We were split right down the middle when we first went into deliberations,” said juror Lori Jacobsen, 41, of Kearney. “I think the three people who ended up (siding with the doctor), two of them were in the medical profession. The other lady was just an elderly lady who thought everyone was doing their best.”

The jury remained deadlocked the first day of deliberations, Jacobsen said. Some thought that Hughes bore some responsibility for missing the ob/gyn appointment after she had been in the E.R.

Jacobsen, in fact, said that when the trial began she was inclined to give the doctor the benefit of the doubt.

“When we were going through jury selection,” she said, “the only thing I said out loud is that ... everyone does make mistakes. After listening through the whole trial, I just felt like there were so many places that something different could have happened, and it could have been a different outcome, and it should have been.”

When the jury returned the next day, three jurors who had been siding with the doctor indicated they were having second thoughts. The required nine of 12 ultimately were convinced that Hughes’ conditions required the doctor to take greater care.

“She was negligent,” said Henry, the other juror. “She should have admitted her (Hughes) for monitoring for that hematoma.”

Chayden’s gift

Hughes has struggled emotionally over the past six years. She has memorialized Chayden in her apartment. His name is tattooed on her right wrist.

Every year, on the day Chayden was delivered, Hughes and her family hold a birthday party for him with cake and ice cream. They buy gifts and release balloons in his memory.

Hughes, who lives on disability, has received no money as of yet, and figured that the jury’s verdict would be appealed.

“It could take me years to get any kind of money, but it was never about the money,” she said. “I just wanted to hear, ‘I’m sorry. I made a mistake.’ I can’t get that.”

If she does receive the jury award, she plans to put it to good use.

“The money would help with my other children,” she said. “Like a gift from Chayden.”

Eric Adler: 816-234-4431, @eadler

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