A pregnant woman’s blood pressure drops dangerously. An obstetrician never picks up the phone. A “Keystone Cop” situation that tragically leads to the death of an unborn baby. Tracey Dellacona and Caleb Walker combined forces to secure $25 million after a surgeon missed their client’s preeclampsia diagnosis. Tune in as host Brendan Lupetin explores the case with the team: Tracey, a nurse turned med-mal attorney who founded Dellacona Law Firm, and Caleb, litigator and appellate partner at McArthur Law Firm. Tune in for their insights about managing voluminous medical records, asking for non-economic damages, and developing collaborative law firm partnerships.

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Welcome to Just Verdicts with your host, Brendan Lupetin, a podcast dedicated to the pursuit of just verdicts for just cases. Join us for in-depth interviews and discussions of cutting edge trial strategies that will give you the keys to conquering the courtroom produced and empowered by law pods.

Alright, welcome back to Just Verdicts. I'm your host, Brendan Lupin, and today I am very glad and happy that Tracey Dellacona and Caleb Walker stuck it out through our tech issues and lead up to this fine interview we're going to have today to share an amazing story of an amazing verdict that they both got. So, Tracey, Caleb, thank you both for being here today.

Thank you for having us.

Thanks for having us on.

Yeah, and again, I really do appreciate you moving offices, doing the sound checks, all this different stuff. It's a bit of a hassle, but I know it'll be worth it. You guys have a great story to tell here. So before we get into this huge medical malpractice verdict that you achieved in the Shante Hin versus Coliseum Medical Center at all case, could you tell us a little bit about each of your backgrounds and how you came to be part of this trial team that tried this case together? And Tracey, I'll start with you ladies first.

Okay. Well, as you know Brenda, I'm a registered nurse. I still am in case the lawyer thing doesn't work out. I was a nurse back, graduated in Mississippi back in 1985, practice for about six or seven years in the emergency room and cardiac care unit, and then decided to go back to law school and moved to Georgia, went to law school and met a lot of great people who put me on the right path and mentored me and was fortunate enough to meet Kathy. We had a lot in common. We liked a lot of the same things. We were married to physicians and the only difference between us is I love Duke, she loves UNC, so we don't talk about basketball during basketball season, but otherwise we found out that we fit pretty good together and we each have our own firms, but we collaborate a lot on cases, different types of cases, and we have a good personality fit. She's more laid back and easygoing a lot of the times. I'm more, let's jump off the cliff type of person. So she keeps me grounded and she's had a lot more trials than I have and has been a great mentor to me. And this was her case and she asked me, she and Caleb asked me to join and I was very fortunate to be able to do that and participate in a great trial because of them.

Awesome. Caleb, how about you? You're 2007 graduate I saw. So you're a couple years younger than me. Tell us about your ascendance into being a partner and doing so much med mal. And it sounds like you do a lot of work and Tracey referred to you as the legal thesaurus. So what did you do to get that nickname?

Well, so yeah, I graduated UGA in 2007. I had a small town job right out of law school. Then I had a trial court clerkship in Macon,

Georgia where we are when my clerkship was perm came up, ended up luckily getting a job with Kathy McArthur at the McArthur Law Firm. And I've been here about 15 years, became a partner several years ago. So I do a lot of the complicated legal issue stuff for our bigger, harder cases. And the way that happened is right when I came on with the firm, there was a med mal case that had just gone up on appeal on summary judgment issues and the lawyers, Kathy and the other lawyers in the firm, we were talking about it and she was saying that she was going to try and associate appellate counsel on it. And I just said for, I don't even know why. I said, well, why don't we just handle it ourselves? And she said, okay, well you're going to handle it. So I put a lot of work in on that case. We won the appeal and since then when we have cases that go up on appeal, I handle most of 'em. But other partners in our firm have gotten to where they can do some of the less complicated appellate work on their own without my intervention. But yeah, that's kind of my role with our firm. I don't do as much of the courtroom tough cross examinations and trial work that Tracey and Kathy do, but I typically am on the trial team for our death cases and our med mal cases and so forth

Because then it's nice to have somebody like yourself, especially with cases of this magnitude, and I'm guessing Tracey, most of the times when you and Kathy hook up on cases, these are cases of significant magnitude. And so these appellate issues are really critical. And inevitably in all these cases you're always running into kind of unique areas of law. And it's sort of like as if it isn't stressful enough dealing with all the pieces of a trial to then be doing this heavy lifting of the legal research and response and thinking through how this is going to play out from an appellate. I could imagine, Caleb, that you are quite the asset to the overall trial team here.

Yeah, I mean my mentality is it's a lot better on the front end to avoid the appellate issues and to get the case through trial with a clean record and a clean transcript so that we don't have to, I mean inevitably people are going to appeal big verdicts, but it's important to, as you're going through the process, eliminate as many potential issues that they can bring up after a verdict as possible.

And Brendan, as in the middle of trial work, when you're trying to get prepared for a witness, whether it's the defense expert, you're expert, it's great to know if somebody files a motion about what's going on, you don't have to worry about it. Caleb's going to take care of it and he's not going to let you step off the deep end and cause reversible error. So he manages that and we're allowed a little bit more freedom to focus on what's actually going on in the courtroom or what we're preparing for the next day as opposed to that particular legal issue that might send us in the wrong direction.

So Tracey, I'm like a caveman lawyer, I just figure just try to win the case. It's always better if you're the appel E than the appellant and we will sort all that out later. And I think I've been very lucky so far, but I know definitively what an asset it is to have a legal brain there. And typically it's me looking over at my partner Greg, who I consider to be the much more studious of the two of us at the firm hoping he can handle that motion, eliminate or that argument because I just want to get up there and give my opening statement or whatever. So before we get into the case, I'm interested Tracey and both of you about this, how you kind of made it like a routine, probably not every case, but frequently your two firms are combining to work on cases.

And I'm interested in that because locally I have lots of trial lawyer friends and you think sometimes like, oh, well maybe we should just form a big firm together, but there's pros and cons of that. And so I love this idea of making it part of your overall business process that you're going to co-counsel and co-work up cases together. Did that just come about, I'm assuming Kathy, from what I'm hearing from both of you, and I wish she could have been here, I know the scheduling just didn't work, but was Kathy kind of doing the trial thing and lawyering before you switched from nursing into legal practice? Tracey,

She actually had been practicing about 15 years, I think longer than I had. But I was very fortunate when I came here and went to law school that a lot of the people that I knew and mentors that she knew as well kind of kept saying, you and Kathy are a lot alike, but we weren't running into each other that much. As you know, you were separated and she had a different partner, they were very successful. And then she decided to go out on her own and I was moving from one place to another and she just happened to be in this building where we are now. And I came and talked to her about us working together on things and it just gelled. And we said, you've spent all this time marketing yourself and your firm, you've got a great reputation. I had done the same thing with mine, only not as long as she had.

And so we just felt like keeping our firm separate was great, but we got the benefit of almost being partners, kind of pseudo partners in discussing things. And I do cases with other lawyers, she does cases with other lawyers, and now she has two daughters who have graduated from law school who have joined her firm. So we get to give each other our experiences and work together and what we learn from working with other attorneys as well. So it's just worked out really, really well for all of us. I think we've been pretty successful at it.

I love it. And I just have to take a little side route that I loved in reading your bio that as I said, we're both fellow Tombstone fans clearly and that you have a plaque in your office. Tell them I'm coming and hell's coming with me. I kind of want to get a plaque like that, but I bet it wouldn't be as cool as yours looks.

I wanted to put it up across the whole conference room wall on the end where it would be 10 feet by 20 feet or something, but then I thought that might insult someone, but I actually was in a trial in Atlanta with a different law firm and one of the attorneys, Virgil Adams that I've worked with several times, you know how you get silly at one o'clock, two o'clock in the morning, you're dead tired.

Oh yeah.

And we were sitting down there quoting different things out of tombstone and that just kind of stuck and became the mantra for that trial.

Yeah. Oh, that's great. And what is it about trial? I know that exact feeling you're talking about that I don't know if it's like you're punch drunk from sleep deprivation and just the goofiness of the trial, but I think some of the hardest laughs I ever have are at the most stressful times trying to come up with arguments and so forth and what are we going to do the next day. There's just something about that dynamic that lends itself to, I don't know if you're just laughing at the ridiculousness of the situation you find yourself in or something

And exhausted and a little bit of fear and a little bit feeling empowered that, okay, it's going pretty good, but am I reading it right, that kind of thing. So you

Just,

That's how you deal with it, I guess, the stress of it.

Yeah, absolutely. So let's talk about Ms. Nan's case. I think you said this case came up through the McArthur firm and then Kathy brought you in to co-counsel it with her, right? Tracey?

Yes.

Yeah. So Caleb, were you working on it from Jump Street or did you just get pulled in when the heavy legal laboring was needed?

Yeah, that's the second one. It's usually the cases

Come up on the trial calendar and when things get serious that we're going to trial is when I get involved with a med mal case a lot of times until there's some summary judgment motion or Daubert motion or whatever, I might not even know about the case because we have so many med mal cases in our firm. So yeah, I got involved when it was time to go to trial and get serious about it.

And Tracey, when did you get brought in early on?

Yes, usually when Kathy and I have a case, if it's that I want her to work on, I usually know it's pretty significant and I like her experience. She always gives me good guidance and advice and we just like working together when she likes for me to come in when there's a lot of medical issues with it, she knows I like OB, obstetrical baby birth cases and emergency room cases. I used to work in the emergency room, so I feel very comfortable with the cases and knowing the medicine and what should be there and what should not be there and if they're telling the truth about this, that and the other. So I was very happy when she asked me to come on board and work with her on this case, which I really enjoy doing.

So I'm going to have you both talk about more of the specific facts of the case, but I want to just get your impression of something. This is more sort of just lawyers talking amongst each other of certain types of cases. And this was essentially a stillbirth case and I don't know Tracey or Caleb historically in Pennsylvania, this would fall into kind of a certain category of cases and right or wrong, there would be sort of a range of value you would see on your different listservs like, Hey, I have this type of a stillbirth case, can people share with recent settlement values and ranges and so forth. And for the longest time, this was years ago, it was like you'll never settle that case for more than a million and a half or really just kind of this ceiling value of what those cases were worth.

And people had their sort of anecdotal reasons for that. Again, I'm not saying that's right, just was the way of the world, but it seemed like nobody really tried many of them. And so then that kind of became the way, and then a good friend of our firm's, John Persky a couple years ago, got a huge verdict, not quite as huge as yours, but a huge verdict on a stillbirth case. Actually, very similar facts actually as I was reading the complaint in the hint matter. And I'm curious from your perspective, if you saw that same kind of phenomena in Georgia and did something change that you had a different view on this particular case? I would imagine they probably offered some amount of money to try to settle that wasn't sufficient, that was there something about it that you said, no, we've got to try this case?

Well, I know that Kathy and I have for years talked about that very issue what you said because there was a mediator in Georgia that was very well respected that a lot of attorneys used all over the state. And he kept saying, I remember back in 1999, 2000, we would get ready to mediate a still birth case and he would say, these cases are only worth $250,000. And I'd go, where in the world do you get that value? And Kathy and I talked about it all the time that they're crazy. There's no way this is a kid who is almost here and has real value and should be respected and should be addressed that way. And so Kathy and I both took the position that we're not settling cases for that little value. I'm sorry, you think that's what it is, but that's not what we think it is.

So I think it kind of went out like a ripple effect from different people just saying, we're not accepting that and we'll try it if we have to. And different people, not just us. Different people have gone out, different attorneys and they tried those cases and started seeing positive results, which as you know, then sometimes you hope changes the insurance company or the defense attorney's perspective on the value of the case. That's what we dealt with. Although in this case we had a doctor who felt like she didn't do anything wrong and she wasn't about to pay anything and she got the biggest hit of both of them as a percentage wise. I think at the end of the case she asked her attorney, what does that mean? I think he said, this is not good.

Yeah. So tell us what happened. What are the basic facts of this case and what jumped out to you from the beginning?

Well, I'll let Caleb jump in when he wants to about this, but because I have a granddaughter that was born when my daughter was six months and one day pregnant, and Ava spent Ava Gray, my angel spent a hundred days in NICU and is perfect, smart, straight a's beautiful, everything went right. So I know that when you have a pregnancy, a woman who is 34 weeks or greater, there should be no question. You should do everything you possibly can to make sure that that delivery goes off and that that baby is in the right environment. There's so many things that affect it positively now where it wouldn't have decades ago. And having a perfect example of doctors paying attention. And I will say I was at the hospital advocating very strongly in that situation. And as you and I and Caleb and Kathy, you're going to have families that don't know that, that don't know how to do that and are trusting their providers to do the right thing. In this case, you had ms. He with a history of having higher blood pressure and gaining, I believe it was nine pounds in five days, wasn't it, Caleb?

Yeah, it a whole lot.

You can't do that without having it be edema and connected to preeclampsia. They knew that and they were monitoring her and she developed the signs and symptoms with the abdominal pain, the swelling, not feeling right, and she did the right thing. She was in Macon in our town about 25 minutes from where she lived and where her OB was, but she went to the emergency room, I don't know what it is in Pennsylvania, if you have the setup where if you're greater than 20 weeks pregnant, you automatically go to labor and delivery assessment, you do not get seen by the ER staff because they send you to the specialized care. And that's what they did. And her blood pressure was high and she had pitting edema, she had all the signs of preeclampsia, but she really ended up with preeclampsia with severe features, which means you don't go home, you stay in the hospital until that baby is either 34 weeks gestation.

And I think she was what, 33 and two days, something like that. Caleb, she just lacked a few days of being the 34 weeks that you need to go ahead and do a C-section or go ahead and augment delivery. And they sent her home instead of keeping her there, even though her blood pressures and all of her physical assessments and the medications required to get her blood pressure down and the protein that was in her urine showed that under the ACOG guidelines she was preeclamptic with severe features. And it clearly states these are to be expectant managed in the hospital not sent home because what happened will happen. They will have an abrupt placenta or something will happen where the oxygen's cut off to the baby and the baby will be damaged or die.

Let me jump in there, Tracey and Caleb, for our non med mal practitioner listeners out there, Andy Meyer, can you explain for us what is preeclampsia and especially if it has concerning particular symptoms, why is it dangerous to both mom and the baby?

Caleb, you want to do it? You want

Me to do it? I'll give it a

Shot. I mean, Tracey

Is the medical expert here. And maybe this is to your question since I'm kind of a lay person here. So preeclampsia is basically pregnancy induced high blood pressure. And so like Tracey was saying, basic preeclampsia is problematic and needs to be monitored and can cause problems for the mother and the baby, but it can be managed on an outpatient basis. But when it becomes severe, which the medical terminology is preeclampsia with severe features, the patient, the mother and the baby need to be monitored in the hospital until the baby is delivered. And people know about high blood pressure, there's medication that can lower your blood pressure. There's things that can be done to treat the symptoms, but the reality with preeclampsia is there's no cure for it other than delivery of the baby. So once you develop preeclampsia, you have preeclampsia until your baby is delivered.

And once you have preeclampsia with severe features, you have preeclampsia with severe features and must be monitored in the hospital until the baby is delivered. Because if complications developed, it's a threat to the life of the mother and the baby. And one of the primary threats to the baby is what Tracey was mentioning, a placental abruption, which is where the placenta detaches from the uterine wall. And obviously that causes a number of problems. It causes hemorrhaging and it obviously cuts off the oxygen flow. The baby is not getting the transfer of oxygen into the placenta, into the baby's bloodstream. And that's exactly what happened here. And the whole point of being managed in the hospital is there's monitoring and they're monitoring closely the baby's heart rate on the fetal monitor strip. They're monitoring symptoms of preeclampsia, physical symptoms that the mother experiences so that when there's a downturn, they're in the hospital, they know what's happening and they say, okay, we were trying to get to X number of weeks with this pregnancy, 34 weeks, but we're a couple days short.

Here we are with an emergency, we're going to deliver the baby by C-section and it's going to be a premature birth, but the baby's going to be healthy. And that's what stood out to me when I got involved with the case is she goes to the hospital, the baby's healthy, it could be delivered at any time. And in fact, they were told when they first got there and she was diagnosed with preeclampsia, someone at the hospital said, well, you're probably going to have this baby before you leave this hospital. So that was their expectation when they were there in the hospital. So the baby was perfectly healthy, could have been delivered while she was hospitalized, it would've been a premature birth. But as we see in these cases that go wrong with hospital discharges, there was not the degree of attention that needed to be paid to her condition.

And it's kind of a situation where sometimes the patient is unquote stable, nothing serious is going wrong right at that moment. So in the hospital setting, if a doctor is not being as diligent as they need to be, they say, oh, well I'm going to let you go from the hospital. You can follow up with your other provider, but you don't need to be here because it's not an emergency right in this moment. But preeclampsia with severe features, again, it doesn't go away and you can be hopefully stable up until 34 weeks and have the delivery as planned, but you be discharged. And that's just the bottom line with this case

From a timeline perspective, where this particular admission to the er and then unfortunately she gets sent home where it's confirmed by fetal heart strips that the baby is entirely healthy. Where is that in relation to the unfortunate endpoint when it's discovered that the baby is deceased?

This case as many med mal cases are related to miscommunication or the failure to communicate, and it was a domino effect. I always call it the keystone cop situation because you had Shante in the hospital and the baby Halle in the hospital could have been provided for a perfectly normal, and they send her home with the instruction, you need to see your regular OB tomorrow, which Shante called the OB office. And they said, well, you have an appointment on Friday anyway, and this is on a Tuesday, so you just come in on Friday, we can't see you before then. What is she supposed to do? Go there and pitch a fit in the lobby and say, you need to see me because they said, you need to see me within 24 hours. Well, she's not in control of that. And the OB who saw her and sent her home, discharged her and said, you're fine.

Go see your OB within 24 hours. She never picked up the phone, which kind of leads to the phone exhibit. She never picked up the phone and called the ob. She knew who she was. They had her prenatal records right there at the hospital where ms. He had come to the emergency department. So they had all the records, they knew who she was, who the OB was. She's just right down the road. She knows who that practice is, who's in that practice. All she had to do was pick up the phone and call and say, Hey, I had your patient here. This is what happened, and I've told her to come see you or whatever she needs to tell 'em to get her in that office. And that didn't happen. There was no communication

Now because I think it'll make the point. And Caleb and Tracey, I want you to know you're part of, I think a world premier for the Just Verdicts podcast. I'm going to try to share an image for the first time ever on this show.

Good luck.

So that any of our listener watchers, are you able to see it?

Yes. Yeah.

Alright. So what is this? I mean, for those who are only going to listen, it almost looks like a phone my kids would've played with when they were a little kid. It's a red phone, looks like probably made by Hasbro old school with the cord, big blue center thing with the old finger dials. What are we looking at here?

Let me jump in and say, I think one of the reasons this was effective is we didn't just project it up on an Elmo screen, and this is something that Kathy has hung onto over the years. She likes to have her key exhibits printed out on big foam boards. So this was probably a three by four foam board that was on an easel in the courtroom just kind of, sometimes it would just be sitting where the jury could see it while the testimony was going on and any of the lawyers could grab it whenever they wanted to make a point with it. And some of the defense lawyers caught onto it and used it themselves. But Tracey, you go ahead and explain why we use this one.

Well, when I was thinking about this case, as you're always thinking about your themes and what you believe a jury would latch onto, and for some reason I kept thinking about a phone that is only a phone call. It takes less than 15 seconds, would've saved this baby's life. But you have to admit, if you showed a cell phone that does not have the same imagery as this red phone does, I mean that just kind of sticks in your mind as opposed to a cell phone. And so when I was looking for images, I ran across this and I thought, yeah, this is the one, this one that'll stick out. And like Caleb said, we ended up one of the other defendant doctors, they started pointing the finger at each other and that defense attorney started using our exhibit with his case and pointing it out and in his closing and with his experts, and Kathy and I were both carrying the board around in the courtroom even if we weren't talking about it necessarily when we're carrying it around. And I think the jury appreciated it, and it did exactly what we hoped it would do is that 15 seconds would've made a difference. Just one phone call and everybody knows how to use a phone.

I mean, to be fair to the defendants, when I first looked at that, I was like, please tell me that's not the actual phone in the hospital, but didn't think about that. That would be game over right there. But no, I think that was really, there's something about that photo really jumps out to you and it just burns into your mind. And then, yeah, that idea, I was just talking, I teach a trial strategy class at Pitt Law and I was talking to the class about it's not done as much anymore, but if whether it's a demonstrative that it's just like the central issue in the case or a critical document or something, it can still be highly effective to put it on the board because of kind of the permanency and the access to it. It's always sort of lurking around the room. And I thought you were going to say, because what oftentimes happens with those is defense counsels like, oh, take that down.

Or they walk over and they turn it backwards so the jury can't see it, which again, I think kind of has that subtle effect that the jury, they don't like that thing. But I think it's a great point when the central issue, and this is that you're talking about Tracey communication a phone call. It was so simple, how easily this could have been avoided. So was that there was obviously more to the case than simply the OB doctor in the ER who never picked up the phone and communicated the information to the patient's obstetrics practice. So what else goes wrong? Because it never, like you said, it's like the keystone, well, you said the keystone cops. I was thinking you're going to say the keystone piece of the call, but the dominoes, that call is not made here. You have a woman healthy baby, she has preeclampsia with severe features. This is a patient that should be admitted and monitored right away. She's not because she can't, like you said, advocate on her behalf properly. She basically gets blown off by her own obstetrics group. They don't know the significance from the emergency room. So that's a Tuesday, we'll see you on Friday, what happens next?

One thing Caleb and I were talking about before we worked out the technology and just what he was talking about, Kathy and I both liked phone boards because we're always afraid the technology is going to fail. The struggles we had initially when trying to do this podcast, so you always have a backup plan, and that's our backup plan. I think it works well. But the other thing Caleb and I were talking about, one of the defenses to this case was in preeclampsia with severe features, you have to meet that definition of having a certain blood pressure greater than or equal to 160 over 110, one or the other, the top number or the bottom number, systolic. Diastolic in two consecutive measurements within four hours. What gets lost is that, well, you don't sit there and take the blood pressure and get it and then wait and see if you get another one in four hours, you treat it.

But if you do get two of them within four hours, then that meets the definition. The defendants in this case took a very interesting defense in saying that, okay, we know there's those blood pressures, but you can't believe those, the machines were not working correctly even though they're taken by manually, a different kind of machine in the er, a different kind of machine on labor and delivery. So none of the machines are working correctly. The entire hospital, including intensive care, emergency pediatrics, everybody's relying on, apparently they're just faulty and measuring blood pressure on Ms. Hen and that she was doing all these things that would cause the blood pressure to be inaccurate, such as she ate a ham sandwich after she'd been without food for 20 something hours. So clearly that made her blood pressure go up and be unreliable because she ate a ham sandwich or because she was being transferred in a bed or on a stretcher from one part of the hospital to another. And then when they measured her blood pressure after arrival to the next place, even though it had been 15, 20, 30 minutes, that was not accurate either because she's now been aggravated and upset because she's been moved from one place to another. It was just ridiculous. I know to say that I'm not sure many people's blood pressure go up because they ate a ham sandwich lying in bed, but maybe, I don't know.

These were the arguments of the defense to say that. And I think the true hypocrisy there is that those are after the fact explanations, but they try to weave them in as though the practitioners were thinking in the moment like, oh, well, she ate a ham sandwich. That's probably why her blood pressure went up, which is so, so far from reality, but it gets woven in at trial as though it was contemporaneous thinking.

Well, going back to the phone board idea, another probably the other key phone board we had was a chart with every single one of the blood pressure readings that was taken in the hospital and an annotation to what Bates stamp page number in the medical record exhibit that could be found on. And for the ones that met the one 60 over one 10 criteria, we had a big red box around them. And so there was one big red box at the top of the chart and another big red box about four or five hours down throughout the trial was used to show the jury these are the severe blood pressures. And I think Kathy likes to just take out a marker and sometimes write on her exhibits. So for the one that Tracey said where she had ate was eating a ham sandwich or getting an iv, you can just take out a marker and put a little dot and put IV or ham sandwich for the explanations of why the defense says, oh, you can't rely on these blood pressures.

These are not accurate. But one of the funny things that ended up happening was we had a fight over whether that chart could go out to the jury for deliberations. And obviously even though every piece of information on the chart was completely accurate, the defense didn't want it to go out at all because it would make it too easy for the jury to process that complicated 2000 page medical record and the key pieces of information. So we got it in into evidence and to go out with the jury on the hearsay exception for summary of voluminous records, and the defense said, well, this is not a summary of voluminous records because it's only about a hundred pages of records that are noted on this chart. And we said, well, it is a summary of voluminous records because first of all, a hundred pages of medical records is voluminous.

Second of all, the entire medical record is like 2000 pages. So the chart went out, but the judge said, well, you can't have those red boxes around the severe blood pressure. So in getting ready for closing argument, we were talking about it and we decided, Hey, look, we've got to tell the jury in closing argument, look at these red boxes. Okay, these are the severe blood pressures. You're not going to have the red boxes around these blood pressures in the jury room. And Tracey, I don't remember if it was you or Kathy, because Kathy and Tracey tend to split the closing argument. I think it was Kathy, but Kathy just slipped in. You're not going to have these red boxes. We wanted you to have them, but the defense wouldn't let us.

Yeah, it was Kathy, I went first. So we wanted her to be able to say it, then they couldn't respond to it.

So anyway, the jury, I think it's super important in medical malpractice cases to explain to the jury where in the medical record, write this page number down. So don't forget this. This is the key page number. You need to put this in your notepad, write this page number down. So when you get back there with this 2 5, 6 inch binders of medical records, you can find what you need to make the correct decision here.

Caleb, are you going to create new Georgia law and what the definition of voluminous is? Is it over under a hundred pages?

No, I hope not. No, that's not one of their grounds for appeal. There really, really wasn't anything that went wrong in this trial that created a good issue for them to appeal, but they had to appeal it anyway, because going back to the doctor, doctor who oversaw the hospitalization never came to terms with that. Anything she did could have been wrong at all and is still of that mindset. So they're on appeal. We're on appeal that right now

On the point that Tracey, I think it's interesting that you and Kathy will split closing. I'm assuming that's, do you have plaintiff defense, plaintiff rebuttal? Is that how it goes in Georgia?

Yeah, that's exactly right.

Okay. In Pennsylvania, we're just typically, it's just defense then plaintiff, there is no rebuttal argument. But rewinding from a trial perspective, can you talk about how you approached the opening in this case? What was your frame, what was your theme and how did you sort of address the multiple defendants and how the jury should think about weighing responsibility?

Kathy did the opening and we try to do it where whichever one of us initiated the case kind of as lead counsel and decides who's going to do what. And Kathy did the opening in the case and she just walked them through without having the other side jumping up and down like Jack in the boxes about objections. She just walked them through about, here's chronologically, here's what happened. We have this child showing a picture of this child's not living and should be alive. And then she went through and said, here's who's responsible. She's in. This one's care for this long. This one's care. We're going to show you and prove to you. And I don't think she addressed this in the opening, did she? Caleb, about, we had ended up in looking, I'm really become more experienced with this over the past five years probably than before, but I'm really into the electronic medical records and who's changing what and looking at the audit trails and going and doing a live inspection of the EMR.

And we determined that these records had been changed, not the ones at the hospital, but the follow up at the OB office because ms. He ended up going to that Friday visit and what should have been clear to that physician as well is that you've got a big issue here and you need to get her in the hospital. She sent her home even with clear signs and symptoms of preeclampsia with severe features. She sent her home and the next day she couldn't feel the baby move and went to the ER by ambulance. And of course it was too late then, but Kathy kind of walked them through what we were going to show and how we were going to show which each defendant, by that time, the hospital had resolved their part of it and it was just the two obs left, like I said, and they ended up pointing the fingers at each other and we ended up having the OB, who was the primary OB, had been doing the long-term care. They ended up their experts pointing the finger at the other OB and somewhat admitting that they had done some wrong. And we ended up having one of the defense attorneys doing a cross exam of their witnesses and kind of on our behalf, basically. That's always fun when they start pointing the finger at each other. It kind of gives you a little bit of comfort in saying, well, clearly somebody did something wrong or else they wouldn't be blaming each other for it.

Yeah, yeah. Adds a lot more credibility to your overall contention that something bad happened. Can you talk a little bit about how did you structure your case in chief? What type of experts did you have to call? What was the order? Obviously, we always are dealing with scheduling issues. It never gets exactly the way you'd love it in your mind to go, but how did your case in chief unfold?

We didn't have a lot of scheduling problems, thank goodness, with them. And we had experts that weren't too far away. They were either nearby in Atlanta or Alabama, and so we ended up having a maternal fetal medicine physician, and we had two obs. Is that all we had, Caleb?

Yeah, I think we just had the two.

Yeah.

Well, one dependent had three and the other had two

That actually got called at trial.

Yeah.

Wow. Don't you have a duplicative testimony and all that?

Yes. Yeah. And we fought about that and we said, look, the defense overcomplicating this going to make trial last way too long. These experts are going to say the same thing over and over. Let's all just agree to have one expert, one retained expert on each issue. And the judge said, well, if they want to put up their two or three experts, I'm going to let 'em do it. So if they're going to have multiple experts each, we didn't want to be in a stuck in a position where we've just got one and then the defense says, oh, well look at all these experts we have saying we didn't do anything wrong, and the plaintiff could only find one single doctor in the whole wide world to say that anything went wrong.

That's crazy though, like an arms race as if our trials aren't expensive enough as they have been, now we have to double up on our different experts. So you have two OB experts. Did they make criticisms of both of the defendant obs or did you have one criticize? One the other criticized the other.

I think one of 'em leaned more against one of the particular defendants than the other, but it was really being able to use too, the experts from the defense we were stacking using theirs for us. When the two obs were pointing the finger at each other, that was really hard for 'em to get away from. They all said ACOG is a reliable reference. And yes, we all use ACOG in our practices as guidelines to determine what kind of care we're going to render to our patients. So it's very difficult for them when they've all said that for their experts not to agree that yes, ACOG does determine what we're supposed to do, and ACOG says you have to keep this patient in the hospital. But that ended up being a argument, didn't it, Caleb, about the definition of expected management? Did that really mean in the hospital or did that mean you could go home and be managed? And that's the position one of the defendants and their experts took was that expectant management means you can be at home and still be managed.

How did you address, I imagine that Shante testified

She did.

I can only imagine how difficult of testimony that must have been for her to give and then to elicit that testimony. How did you guys approach that in this case, having her tell the story and having her sort of express to the jury the impact that this had on her?

That was her first pregnancy and her first child, and since that time she had had a little boy, right, Caleb?

Yeah. She was only what, 22 when this happened?

Yeah, she was very young. Someone who wouldn't have the experience of an older, and I don't mean that in any way other than somebody with a little more of the world who wasn't just so trusting of doctors and having lost her. She always wanted a little girl. You could tell by the way she talked and the way she looked, that she was a daughter's mommy. I mean, she loves her son obviously, but it was something about having a little girl that meant a lot to her. And did Quinesha do her direct exam?

I can't remember. She may have. Quinesha did most of the family and the damages, witnesses, direct exams.

She's a younger lawyer who did the exams and did a very, very good job of bringing out empathy but not overdramatizing. It is hard to talk about the loss of a child. I don't care who it is, but not making it walking that fine line where you're not trying to shove something down a jury's throat that they may think you're trying to overdramatize what's going on. And it just came off very real and she was almost, we had to work with her. There are a lot of moms who, and especially we deal with a lot of minorities, they are brought up to believe you have to be a strong woman and you can't show any weakness trying to get individuals like that to reach down inside and touch how they really feel and bring that out. It takes a lot of work, and it can be a somewhat adversarial position with your own lawyer when they're saying, I know you want to be strong and you've been taught that, but you really have to convey how this really destroyed your life. You want to tell the truth and don't overdramatize, but you have to look like and sound like you're not somebody who this hasn't had an impact on your life. It has. And that's hard to do. I've run across that two or three times with different clients, and you just have to spend a lot of time with them and get them find out what is it that will allow them to open up and it's different for everybody.

Well, and add on to that. I mean, given this sort of timeline of events, I mean Chante obviously also had to speak about some of the liability, factual observations of what was going on and how was she feeling and all this kind of stuff. And you have to prepare her for, I'm assuming a cross-examination because I'm sure there's maybe a subtle or not so subtle suggestion. Well, you should have done more Shante, right?

Yeah. You delayed not coming to the hospital. You should have come that morning, that Saturday morning. It always happens on the weekend or a holiday. It's a bad event, and that she did well, you didn't tell your provider this or you didn't make it clear you were having this issue because they didn't write it down or write it down completely in the medical record, then it's her fault.

Yeah. So for instance, going back to the follow-up with your primary OB within 24 hours, well, what did you do? And she did what she needed to do. She called before she left the hospital to get an appointment and told the nurses at the hospital, Hey, they won't see me within 24 hours, but well, you should have done more to get in. Or another thing was there was an errant entry in, I think it was the ambulance record when that weekend couldn't feel the baby started having bleeding called ambulance got taken to the hospital. I think there was an EMT entry that said she hadn't felt fetal movement since Friday, and this was Sunday morning. Well, that wasn't true. She did have fetal movement on Saturday when she got to the hospital. The records there reflected that she had fetal movement on Saturday, but I don't think the defense, I guess they made the decision to not try to emphasize that as much as they were threatening to pretrial because one of the defense attorneys said, well, she has a responsibility because she didn't check on her baby for a whole 24 hours. Didn't

Have any Yes. Living.

Yeah. And that was, I mean, sometimes when the defense gets a little too aggressive and overplays things, it actually is better for us. And I think that happened a couple times on other things, but that was one of the things that we were all just very offended and angry on behalf of Shante, that anyone would even suggest that she didn't care about her baby, that she didn't do anything for over a day when she had no fetal movement. That's just absurd.

A couple of things I want to follow up on. So one in addition to Shante, did you call any other family members or lay witnesses to highlight or better explain some of the damage component of the case?

We called her the father, and they'd been together for a long time. They had planned on getting married and just never got married and we're still together and now had a son. We called him and he did a good job. There were things that as usual come out that sometimes you're not aware of, that you're not told about, and you have to deal with them right then on the spot that may not be that favorable to you. And so Caleb and Kathy did a really good job dealing with some of those issues that came up. And then we called two of the friends that they had a long time relationship talking to each other on the phone, seeing each other all the time, texting each other. And so they came in and talked the memorial service and everything, all the family coming and having the funeral and how much that broke everybody's heart. And they were very short witnesses, which was good, but just made a couple of points that we needed made. And then that's really the only ones we called

With lack of communication or breakdown in communication, which is when you have it, it's a very powerful theme I think in all cases, but especially it seems in medical negligence cases. It's apparent to me how er, ob, there was a clear, just didn't pick up the phone, didn't communicate anything of significance of would've been observed and documented to anyone else. Did you carry on the theme of lack of communication in some way to the second OB who sent her home on that Friday? And if so, how?

The big thing from the primary OBS perspective, and this was part of the finger pointing that came down was she said, well, if I knew that my patient had these blood pressures in the hospital, I would've said, well, you've got preeclampsia with severe features. You need to consult maternal fetal medicine specialist and you need to get hospitalized. She didn't testify on direct because of the medical record changing issues, but we use her deposition testimony instead of calling a cross-examination in our case where she admitted, yes, this patient had preeclampsia with severe features. Yes, these blood pressures are accurate. Yes, this patient needed to be hospitalized. And she said, well, the reason I didn't do more is because I knew that severe features means stay in the hospital, and here my patient is three days after a hospitalization to me that says this is normal preeclampsia.

This is not severe features because nobody would've discharged her if she had severe features. So that was the assumption that she made without getting the chart from the hospital, without her picking up the phone and calling the hospital OB to find out what happened. Because there were things about MS. Hen's condition on the morning. She was seen for the office visit like she was on blood pressure medication, but was still experiencing intractable headaches. She still had serious edema. Her blood pressure was elevated, but not so much into the severe range. But these are all concerning factors that once the primary OB starts blaming the hospital, well, here comes her defense attorneys saying, oh, well, on cross-examination they cross examined the primary OB and highlight it. You knew she had this. You knew she had headaches, you knew she had X, Y, Z, and yet you didn't pick up the phone to call our hospital r ob. You didn't get the chart. So now it's your fault because you had the last chance to save the baby. But so anyway, the basic defense from the primary OB was nobody would discharge this patient with these blood pressures. Here I am with her in my office, she's been discharged, so it was safe for me to say she didn't have severe features. So it's not my fault, it's the hospital obs fault,

But again, you had that, the phone applies both ways. First, doctor didn't pick up to call OBS practice on the flip side, OB on Friday doesn't pick up the phone call anybody else to say, Hey, what exactly was going on? Or just communicating the information to herself of what was in that record to properly treat and direct this patient.

And a little peripheral issue to that, what Caleb was talking about too is the hospital that the primary OB practices at does not have the appropriate NICU for a baby under 34 weeks gestation. They can't take care of that child. Ironically, the mother would've had to have been readmitted to the same hospital or another hospital in Macon that did have the capability of taking care of early gestational age baby. So she would've had to have been readmitted right where she was discharged from or in the other hospital. It could not be done down there. And the hospital OB knew that because she had other babies and moms transferred from that hospital in the nearby town to Macon to be dealt with because they didn't have the capability. So she had a little bit of extra information. She wasn't thinking through as well.

With the audit trail that you mentioned, and it sounded like Kathy may have alluded to it in opening without maybe going in depth in it, but how did you call an audit trail expert during trial? What did you do to communicate to the jury what this is? Metadata, sort of the electronic fingerprint of who did what when in the file to get the point across that there had been changes made to this file to some of the records at some point in time after the fact?

Well, Caleb and I spent a good bit of time looking at the audit trail and going through it, and we had an expert, but we didn't have to call him because other defense attorney ended up cross-examining the primary OB about the audit trail and the changes. So we just sat back and watched and let them make that point for us.

So that would've happened in your case in chief?

No, actually, that was one of the odd things that happened in this trial because we used the primary OBS deposition testimony. That was all we put up in our case in chief. And then when it came her turn to put up her case, her defense attorney knew this audit trail problem looked so terrible. He chose not to have her testify on direct examination because that would've opened up an opportunity to cross-examine her. Well then, because there was so much finger pointing and the defense got so up in arms against each other, the defense counsel for the hospital OB called the primary OB on direct and brought out all the details about the audit trail for us.

That's nice. Sounds like not so much gifts, but just the dynamics of the case just created lots of really helpful, credible opportunities for your Justin righteous side of this trial. So you guys have both been so generous with your time pivoting toward the end of trial. So you're moving into closing. Given how everything had unfolded, what were the goals of closing? What were you trying to stress and really hit home with this jury? You talked about, I thought, the very clever way of stressing how they should use that demonstrative. What were some of the other key things that you thought were most important to lead to this verdict?

I think showing the jury that these doctors are responsible and they have to take responsibility and that a baby, whether the baby's here, the life is just as valuable, and especially in this situation in Georgia, it's a little bit different. It's the value of the life to the individual who lost his or her life. It's not the value to you as a parent. So what did the baby miss out on Miss Christmases and having a younger brother now and being part of this great family that existed and being able to do all the things that all of our children do, and always, if I can, because I love her so much and because it's a true story and it kind of brings life to things. I talk about my granddaughter, Ava Gray and what happened. And so it takes away that business of, oh, well, we don't know if this baby would've turned out okay or not, because we do know that that's probably more likely than not the baby would be fine.

And even their own experts testified, the baby was fine and alive up until, I mean, they were given up to the day that Friday or Saturday if there was movement right before the baby quit moving, that everything would've been fine, way above the 50% threshold that we needed to meet that goal. And then telling them, using the phone, talking about communication, using, I don't know how I ran across that point, but I just thought it was the best thing I could ever find that dealt with this situation on about nobody, somebody, someone, anyone. And it just laid it out everybody's fault. On the other side, they didn't do what they had to do. And then Kathy, using the jury, told us afterwards that they looked up every one of those pages on the medical record demonstrative that Kathy had put together that we used. They went and looked to see what was in there and it really hit home for them what happened. And then Caleb, you explain about, I don't think a lot of people understood. We talked about this case at a breakfast meeting not too long ago, but I don't think a lot of people knew about making the claim for the mom. We sent the memo that you did about the law.

Yeah, so I guess it's a little unusual because we, for years have been any birth case. We have bring a claim for medical malpractice on behalf of the mother because for some technical reasons in Georgia you're allowed to do that. But from talking to other lawyers who handle these cases, a lot of them don't make a claim on behalf of the mother. But as far as the reason it's allowed, we've got a really strict impact rule in Georgia that typically if you don't suffer a physical injury, you can't claim any emotional or mental pain and suffering no matter how severe you have been affected. And you can have PTSD and not have any claim for what happened to you. But there's really just one really good case from 10 or 12 years ago that says, well, in looking at the doctor patient relationship and Georgia's medical malpractice statute that says you have a claim for any injury arising out of a violation of the doctor patient relationship, the court of appeals here said the impact rule just doesn't apply where there's a physician patient relationship.

And this was part of the strategy that I guess probably, I think Kathy brought this up in opening statement, that with a pregnant woman, the doctor has two patients. The doctor is treating the mother and the doctor is treating the baby, and they're both patients that the doctor is responsible for. And so I expected we were going to get pushback from the defense on this pretrial that we had this claim in the pretrial order for medical malpractice on behalf of the mother. But for whatever reason, they didn't fight us on that. In other cases where we've had to fight about it, we win because that's what the law says here, thankfully. But anyway, so in Georgia, you're able to have a claim like Tracey said, for the loss of the life from the perspective of the baby Haley, who never got to come into the world and live a full life.

But you can also have the jury consider what the mother went through in terms of having the placental abruption, having a ride in the ambulance to the hospital, worrying about her baby, and then getting to the hospital and being told There's no fetal heartbeat. Your baby's deceased. You're going to have to stay in the hospital and deliver the baby knowing that the baby is not going to be alive and having that experience. And it was very tragic and compelling, having the evidence and the testimony of when Haley was born, they took pictures holding Haley and she looked like a normal healthy baby who was just asleep. But Shante went through this terrible experience of having to go through labor just as if you're going to deliver a healthy baby. But knowing that that's not what's going to happen. And so she had her own damages line on the verdict form for the jury to fill in, and they ended up awarding a significant portion of the total damages to her claim.

Yeah. Can you speak to that? So I mean, that's really everything you just described, this is two patients, and then going not in depth, but just not short shrifting, what Shante had to go through herself from that process that you just described is really compelling. Well, first off, I imagine this must've been a long deliberation of this jury went through every record in the medicals just to confirm all the blood pressure. So I mean was it was probably a multi-hour deliberation right day bloody

Day.

They started on, was it Thursday afternoon, Tracey, or was it, or did we go into the next week and it was Monday?

No, it started on, we ended up going over, but they start on Wednesday and we ended up,

Yeah, late. They started one afternoon and then we came back in the morning and they deliberated for quite a few more hours the next morning before we got the verdict.

Yeah, it's sickening.

I want to throw

Up.

Yeah, I know the feeling, Tracey. And so how did, I mean, it was a huge verdict. What was the total verdict?

So the total was 25 million. It basically broke down to $4 million for the economic value of baby Haley's wrongful death.

It was 6 million for pain and suffering of Shante

15 for the non-economic value of the baby's life. Which going back to what we talked about earlier at the beginning about the way these cases have evolved over the years in terms of the value that people think of, well, number one, it was a little bit surprising economics that we put up was $2 million hard economic value for the baby's life. And the jury said, well, we think that's low, so we're going to double it and give four. But we try not to rely primarily on economics and wrongful death cases, and especially in cases of a child or a baby because it's so up in the air what their future in terms of their career is going to look like. And we focus a lot more on the value of life in living it in Christmases in going to the fair with your parents in graduating from high school and having your family there with you and all these experiences that a person loses in a wrongful death case. And so I think when you don't overemphasize the economics and you focus on the value of life as it's lived, it's a lot more compelling. And we have gotten good results in terms of non-economic value in a wrongful death case. And that's what happened here. The bulk of the verdict was for the non-economic wrongful death value

To the extent, I mean, you can talk about it further. Did any of the, you mentioned the jurors had said, yeah, we went and confirmed these blood pressures. Did they elaborate on anything else that really struck them significantly that drove this verdict in addition to anything that you guys have talked about so far?

I just think they understood what Caleb just explained, that the value of the life is the memories that you make in everyday living. That's what gives you pleasure a lot more than getting up going to work. I mean, I love what I do, but I can think of a lot of things. If I had a choice between spending five minutes doing something at work and five minutes enjoying a moment with my granddaughter or one of my horses, that's what makes me laugh and makes my life valuable to me. I mean, helping other people in what we do, it has a significant value. And I get a lot of pleasure from helping people, as does Caleb and Kathy, helping people try to fix what somebody else messed up by not paying attention or communicating. But it's our memories and our experiences that give our life meaning and value, not necessarily how much money we make.

Yeah, I think that kind of hits the nail on the head, and that's a good stopping point for this really compelling story, really compelling trial. I appreciate both of you taking the time. And it did take some time here today to share this with us, but I got a lot out of it. And Tracey from the Dellacona Law Firm in Georgia, and Caleb Walker from the McArthur Law Firm, and of course Kathy McArthur, who couldn't be here with us, but feels like she was part of this whole discussion today based on everything that you shared with us. So amazing outcome. And again, I think it's just huge that trial lawyers like yourself will say, Hey, we're not going to just accept the standard settlement values of these cases because they're baseless and it is not a proper recognition for what actually was taken from these people and trial lawyers and teams like yours that have to reset things for everybody. So I think it's just phenomenal what you did, an amazing outcome, amazing verdict, great lawyering all around, and I appreciate your time sharing this all with us. So thank you both.

Thank you for having us and leading the way and guiding us. You're a great host and I certainly enjoyed it. I know Caleb did too.

Yeah, very enjoyable, a good success to talk about.

You made us look smart.

You guys are the smart ones. I just have to tee up the good questions for you. But no, thank you both so much, and I hope our paths cross in person one of these days. It may be some trial seminar somewhere, but that's the great thing about this podcast is I get to meet tremendous trial lawyers like yourselves all around the country that I might not otherwise meet. So thanks both for your time. We'll see you soon. Okay.

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