Firm Fends Off Pediatric Med-Mal

Samantha Joseph, Daily Business Review
October 26, 2016

Michael Petuccelli, Fann & Petruccelli
Michael Petuccelli, Fann & Petruccelli courtesy photo

Attorneys Michael Petruccelli and Steven Osher faced a daunting challenge in defending a South Florida clinic in a medical malpractice jury trial before Broward Circuit Judge Mily Rodriguez-Powell.

It’s a hurdle that comes up frequently in cases that seek to pin blame on doctors after a medical tragedy: How to fight the allegations without appearing to attack the patient—in this case Seahyun Kim, a 9-year-old boy with severe brain injury.

Kim’s parents, Jakyun and Yoochan Kim, brought a $24 million medical malpractice suit on his behalf against Children’s Medical Center P.A., four pediatricians and South Broward Hospital District, doing business as Joe DiMaggio Children’s Hospital at Memorial. The case against the doctors and Children’s Medical Center proceeded to trial.

The child identified as “baby Kim” in the lawsuit didn’t testify, but his presence was a compelling factor before the jury. He had to have part of his brain removed, leading to delays in speech, learning disabilities and other cognitive impediments. His parents blamed the clinicians for his condition, accusing them of negligence for allegedly failing to perform proper tests to uncover a slow bleed that led to his medical crisis.

The doctors tapped Petruccelli and Osher, name partners in a small trial firm specializing in medical malpractice, wrongful death and other civil litigation matters. The lawyers defeated the suit Oct. 13, fending off the multimillion-dollar claims.

“He’s a beautiful boy,” Petruccelli told the Daily Business Review about Kim. “Everyone understood that he has injuries, but we didn’t feel it was our fault.”

Kim’s parents claimed the four physicians failed to detect a skull fracture and intracranial bleed after Kim’s birth in 2007 via vacuum delivery. They said physicians attended to the baby three days after his birth and should have been more alarmed by symptoms that included no crying, excessive sleeping and poor feeding. Tests at that time showed Kim suffered from elevated levels of bilirubin, a compound found in bile and produced as the liver breaks down old red blood cells.

Children’s Medical Center discharged Kim, with instructions to his parents to monitor the child’s jaundice. Medical evaluations done the following day again showed elevated bilirubin, prompting pediatricians to refer Kim to the emergency room at Joe DiMaggio Children’s Hospital, where staff performed tests over a three-day period.

More medical visits and tests followed, until clinicians from another health care provider, Holy Cross Hospital, performed CAT scans weeks later and diagnosed Kim with traumatic brain injury, seizures and brain bleeding typically associated with severe head injury.

“As a direct and proximate result of the negligence of the defendant … baby Kim suffered permanent brain damage and other injuries,” claimed plaintiffs attorney Liah Catanese of Alan Goldfarb P.A. in Miami.

Petruccelli and Osher countered that their clients saw Kim for the first nine days of his life, but not for the six that followed, when they claimed his injuries occurred. They argued he was neurologically intact with no indication of bleeding and that clinicians treated him to prevent Kernicterus, a rare type of brain damage that could have resulted from severe jaundice and spread of excessive bilirubin into the child’s brain tissue.

The jury cleared the pediatricians of negligence and declined to award damages for past and future medical care, loss of future earnings and pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, aggravation of a disease or physical defect, or loss of capacity for the enjoyment of life.

Jakyun and Yoochan Kim have until Oct. 28 to file post-trial motions. They’d filed no challenges by press time.

“The care was appropriate,” Petruccelli said. “We defended the medicine.”