MetroWest Daily News

Mother seeks justice for her daughter
By Jon Brodkin/ Daily News Staff
Sunday, June 25, 2006


It took years for a mother to build a case against the Boston hospital where her daughter suffered a devastating spinal injury during a medical procedure. But state law leaves the family with no legal recourse, and a growing pile of medical bills.

Nothing has been the same for Sarah Deckert since the day her brain started hemorrhaging.

But it wasn’t the bleeding that left 9-year-old Sarah with a spinal cord injury and lifelong disability. It was the medical care the Framingham girl received at Children’s Hospital in Boston.

Now 14, Sarah and her mother, Cheryl, believe she was a victim of medical negligence when an angiogram performed to evaluate her brain hemorrhage caused a spinal cord injury, paralyzing her from the shoulders down.

But Cheryl, a single mother of two adopted children, has been stuck with tens of thousands of dollars in medical bills even though she spent the last five years forming a case she believes is strong enough to take to court.

The family cannot file a lawsuit today because Massachusetts enforces a three-year statute of limitations for medical malpractice cases. Sarah won’t be allowed to seek compensation in court when she turns 18, either.

"Sarah has been condemned to never being able to stand up for her own rights," her mother said.

Sarah’s hemorrhage stopped on its own, leaving no lasting damage. Children’s Hospital admits it was the angiogram that harmed Sarah. The Deckerts do not agree with the hospital’s argument that the injury was an unpreventable complication, instead of the result of negligence.

The question will never reach a jury because, unlike many states, Massachusetts does not allow minors harmed by doctors to file suit when they reach adulthood if the injury occurred more than three years earlier.

Legislative debate about medical malpractice has focused on proposals to make it harder to sue doctors. Extending the statute of limitations for minors to help girls like Sarah is off the table.

"There’s been no effort to expand the statute of limitations that I’m aware of," said Rep. Peter Koutoujian, a Waltham Democrat who is co-chairman of the Joint Committee on Public Health.

The Massachusetts Medical Society, which is pushing for new limits on malpractice lawsuits, would oppose any effort to extend the time limit on filing negligence suits, even for minors like Sarah.
"We believe the current statute of limitations is a fair balance between the rights of plaintiffs and defendants, and we would not support any change in the statute," said Frank Fortin, the group’s spokesman.

’A gorgeous girl’

Sarah was a star athlete on a Framingham youth soccer team and was learning to play the flute before she was disabled. She did not have the most severe type of spinal cord injury, and regained the ability to walk, though awkwardly.

Sarah’s hands are clenched, and she uses her arms for balance to walk. Her muscles are weak and sprain easily when she falls. She had to use a wheelchair in school for a month after she broke her arm one time, because she needs both arms to steady herself. Simple tasks like reaching into her pocket for money at a store cash register are sometimes impossible.

"She’s a gorgeous girl," Cheryl said. "That is such a contrast to her limitations, and your heart goes out to her every day."

Sarah has bipolar disorder, and her emotional problems make it difficult to cope with her injury, Cheryl said. She entered a hospital in March for psychiatric problems and was treated there for more than two months. She entered a halfway house, then came home last Monday.

Sarah goes to a high school in Acton, which she travels to in a van provided by the Framingham school district. In Sarah’s school picture, you can see her smiling and wearing a pink Red Sox shirt, but you can’t see the weakened arms and legs that prevent her from being just like anyone else.

The day everything changed

The doctors who performed the angiogram, Francine Kim and Sandip Basak, now practice in Illinois and New Jersey, respectively. They both declined comment when reached by phone.

Children’s Hospital admits the angiogram its doctors performed caused Sarah to suffer what is known as a stroke to the spinal cord, blaming a blood clot that broke into small pieces and blocked a spinal cord artery. The hospital characterizes the tragedy as an unavoidable side effect of proper medical care.

An expert in neuroradiology at the University of Toronto, however, does not agree. Dr. Karel terBrugge, who reviewed images taken of Sarah’s brain during the angiogram and other documents for the Deckerts, concluded two months ago that doctors failed to perform crucial tasks which could have either prevented Sarah’s spinal cord injury or lessened its severity.

In July 2001, Sarah went home from camp after getting a sudden headache and feeling nauseous. Cheryl Deckert took her daughter to the MetroWest Medical Center emergency room in Framingham the next day, Friday, July 27. Doctors decided to helicopter the girl to Children’s Hospital, where the angiogram was performed at 8 p.m.

Cheryl was not allowed on the chopper because emergency medical technicians were training students and there was no room, she says. Deckert had to drive to the hospital herself and believes the delay cost her time in which she could have weighed the benefits and risks of the angiogram, and perhaps prevented the test.

"They just totally took over her care from me, from the minute they wouldn’t let me on the helicopter," Deckert said.

Sarah remembers doctors telling her that if her mother did not arrive soon, they would perform brain surgery. In fact, Sarah’s brain hemorrhage went away on its own and the cause was never found. The hemorrhage had no lasting effects on the girl and doctors did not have to perform a single procedure to stop the bleeding in her brain.

"Nothing was ever done. If I had never taken her to Children’s Hospital and kept her at home, she would be a normal child today," Deckert said.

But the most pressing question is not whether an angiogram should have been performed. It is whether doctors made errors that allowed the formation of the blood clot that injured Sarah’s spinal cord.

Thirteen minutes

During an angiogram, a catheter is inserted into the body and dye is injected to make blood traveling through vessels visible on X-ray images. If a catheter is left in the body too long, blood can rush into the catheter and form a clot, terBrugge said. If there is a delay of even just a few minutes between injections, terBrugge said, doctors must flush fluids out of the catheter to prevent a clot from forming.

In Sarah’s case, angiogram pictures showed a 13-minute delay between dye injections with no evidence that doctors cleaned the catheter or removed it from the blood vessel, actions that could have prevented a clot from forming, terBrugge wrote in an opinion he issued on behalf of the Deckerts.

"Thirteen minutes is a big delay in the vessel that goes to the brain. With the brain you don’t leave catheters in there for no reason," terBrugge said in a phone interview.

In September 2004, Children’s Hospital filed a report on Deckert’s case with the Department of Public Health, in which the hospital dismissed any notion of negligence committed by Drs. Kim and Basak.

But the report admits that on the night of Sarah’s angiogram, Dr. Kim did not notice blood clots in the angiogram film until she looked at the images a second time late in the night.

The report says Kim became concerned that Sarah might suffer an injury similar to the one that ultimately afflicted her, but did not review the images with another doctor until the next morning when she learned Sarah had been paralyzed.

A nurse had been assigned to examine Sarah for neurological injury every hour throughout the night. But there was no documentation to show this happened between 11 p.m. and 7 a.m., according to the Children’s Hospital report. No one discovered Sarah was paralyzed until her mother walked into her room Saturday morning and realized she could not move, according to Deckert.

Despite the substandard nursing care and evidence of blood clots forming prior to the spinal cord stroke, Children’s Hospital maintains the injury to Sarah could not have been prevented.

"It was deemed that it was a rare but not unexpected complication from the procedure that needed to be done, and it was not preventable," hospital spokeswoman Michelle Davis said.

terBrugge sees it differently. Besides the delay which he believes could have allowed the blood clot to form, terBrugge says the images of clots on the angiogram film should have caused doctors to monitor Sarah more closely and take actions to prevent injury.

He said doctors should have discussed whether to give Sarah blood thinning medication to dissolve the clots and prevent a stroke of the spinal cord, even though this strategy is often ruled out in cases of brain hemorrhage. The hospital should also have examined her every hour for evidence of a stroke and, once the injury occurred, doctors should have administered steroids to counteract its effects, he said.

Steroids were not administered until 9 a.m., according to Children’s Hospital.

"I think she did not receive the standard of care that could be expected in a hospital of high quality," terBrugge said. "And I think it’s unfortunate it took so much time to figure it out. I think she would have had a very good case (in court)."

Even perfect care may not have saved Sarah from a lifetime of disability, but that should not have prevented doctors from doing everything possible, he said.

"It would probably have made very little difference," terBrugge said. "But you should always try to optimize things and at least give the best chance for recovery. Now, nothing was done and therefore the worst outcome occurred."

Racing against the clock

Children’s Hospital declined to comment on terBrugge’s opinion, saying it is reviewing the letter and will communicate only with Cheryl Deckert about the doctor’s analysis.

Opinions from outside physicians like Dr. terBrugge are effectively a prerequisite for filing a malpractice lawsuit in Massachusetts.

"This opinion is what I needed to have in my hand before the three years was up," Cheryl said.

A chemical engineer, Deckert pursued the case with the mindset of a scientist, documenting discussions with hospital officials from almost the day Sarah was injured. But the enormity of caring for a newly disabled girl made the search for answers difficult, and she felt Children’s Hospital was stonewalling her.

State law requires hospitals to report serious injuries from accidents or unknown causes. Children’s Hospital did not file its report with the DPH until September 2004, after Deckert sent the hospital a stack of questions she had formed about Sarah’s care.

Michelle Davis, the Children’s Hospital spokeswoman, said the hospital did not initially report the incident to the DPH because it believed Sarah’s injury was a "rare but not unexpected" complication from the procedure, and did not stem from an accident or unknown causes.

The DPH did not dispute the hospital’s decision not to report the injury immediately, associate commissioner Paul Dreyer said. The agency also did not investigate the case on its own because Deckert did not file a complaint with the state until three years after Sarah’s injury, he said.

When the DPH received Deckert’s complaint, the agency had just finished a general investigation into Children’s Hospital which found problems "congruent with some of the concerns raised" by Deckert, Dreyer said. Dreyer declined to comment specifically on Sarah’s case.

Although Deckert’s lawyers retained several experts to review her case, she did not receive the clues she needed to pursue a claim, she says, until a meeting with Children’s Hospital doctors in the fall of 2004.

That is when a doctor told her the blood clot likely formed inside the catheter, she said. At the end of the meeting, another doctor offered to give Cheryl the original angiogram films, she said. A review of those films identified the 13-minute delay which terBrugge believes is grounds for a negligence suit.

Deckert’s lawyer, Leonard Simon of Waltham, said terBrugge’s opinion is strong enough to form the basis of a negligence lawsuit, if only the statute of limitations hadn’t expired. Case law in Massachusetts makes it clear there is no way around the statute, he said.

Russell Pollack, a Boston lawyer who reviewed terBrugge’s letter and other documents for the Daily News, but has not been involved in the case, said the terBrugge letter is not as "airtight" as the ones he usually goes to court with. But Pollack said he would consider taking the case if he researched the matter further and felt there was negligence.

Nowhere to turn

None of this matters for the Deckerts, however, because of the restrictions Massachusetts places on injured minors who want to file malpractice claims when they reach adulthood.

Sarah would be allowed to file a lawsuit either today or when she reaches adulthood if she had been injured in Washington, D.C. or any of the following 17 states: Alaska, Arizona, Idaho, Kansas, Kentucky, Maine, Nebraska, New York, North Carolina, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Utah, Vermont or Washington state. Massachusetts grants just one exception to the three-year statute of limitations, as it applies to minors. Children harmed before the age of six may sue a doctor until the age of nine, but this provision won’t help Sarah Deckert.

Even the Massachusetts Board of Registration in Medicine would be unable to discipline the doctors who performed Sarah’s angiogram because they no longer have licenses to practice in this state.

Deckert is considering filing complaints with the state medical boards in New Jersey and Illinois, where Drs. Basak and Kim now work, respectively, but only a victory in a malpractice suit could provide the money she needs to pay for Sarah’s medical costs. Children’s Hospital refused a request to help subsidize her care, Cheryl said.

"My goal is to get this information out and have Children’s Hospital face up to what they’ve done, and perhaps strive for some improvement in our system," Cheryl said. "It’s grievous harm....They caused her to have a spinal cord injury. What could be worse?"

Jon Brodkin can be reached at 508-626-4424 or jbrodkin@cnc.com.

Tragic story. Maybe you can start a run or a walk for them. Maybe you can donate some money or time to them.

I shivered when I read the fine print for all the spinal taps I had. brrrrrrrr, but accidents happen.

There is a Massachusetts thread here somewhere.

This is your daughter, isn't it, Chezann?

yes it is.

I'm very sorry. Why do you post to us, here? Are you on a quest?

Hi Chezann -

I have come back to this thread again and again. I am afraid that I just don't know what to say to respond. All the words and the sentences I have formulated in my head seem trite when I try to respond here. I would very much like to get to know you better. Please keep us updated. Please let us know if there is anything we can do to be in support of your daughter and you. This forum is a wonderful, incredible place. Look forward to hearing more from you.

What a enormously sad tragedy for this child and her family.
I cannot not fathom the difficulties faced with the combination of physical and
mental illnesses here. Words are simply inadequate. But Sarah is very
blessed to have been adopted by such a caring and loving mother who has
tried so hard to what is best for her child.

Hello mtnmagic-

In answer to your question - I decided to post here because it is a way to archive our tragic story and make it accessible for others to read on the Internet. Even though it has been 5 years since the tragic events took place, snatching Sarah's health away from her, the pain is fresh for me every moment I look at her or think about how she suffers. It was bad enough that the injury took place to begin with, but I cannot accept the way the people and institution responsible have been enabled, by our legal/medical system, to turn their backs on the horror they caused. It makes me feel every single day that the world lacks rationality. I will never stop my quest to keep this tragedy out in the open until in some way which I cannot identify at this point, I can reach closure. Thank you so much for your kind and sympathetic words.

Bless you and your daughter. I understand what you are saying in the quoted poste. I have not lived it, but I do believe I understand. Please let us know how you and Sarah are doing when you have a chance, ok?