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A Massachusetts jury has awarded $15 million to the parents of a young child who died following a series of complications from a catheterization procedure.

Jurors found that two doctors at Children’s Hospital in Boston, Dr. James A. DiNardo, an anesthesiologist, and Dr. James Lock, the hospital’s former physician-in-chief, caused the death of three-year-old Jason Fox.

Jason died in December 2004, a year and a half after he was treated at the hospital for a birth defect. Jason’s father Brian, himself an attorney in Pennsylvania, said the basis for the complaint was that Lock and DiNardo lied about their actions when treating his son, and attempted to cover up mistakes that were made during and after the procedure.

“We knew pretty early on after the procedure that Jason was very adversely affected,” said Brian Fox. “Before the procedure he was extremely interactive and engaging, then after he stopped talking, couldn’t walk independently. The doctors continued to insist he would just get better.”

According to Brian Fox, he had an inordinately difficult time finding a Massachusetts attorney to represent him. At least a half dozen lawyers turned him down, some citing the fact that they had used the defendants as expert witnesses in other trials.

So Brian Fox turned to his cousin, California lawyer James Fox. At first, James Fox planned to only assist in drafting the complaint. But the Sherman Oaks-based attorney soon became lead counsel, tracking down former physician assistants, cardiologists and pathologists who had settled in other areas of the country (45 in all).

James Fox said that his biggest challenge at trial was convincing jurors that such respected physicians would lie and deceive the parents of a patient. To do this, he structured his case around chipping away at the mystique surrounding the defendants.

Attorneys for the defense could not be reached for comment prior to deadline.

Birth defect

Jason Fox was born in July 2001 with a birth defect called Tetralogy of Fallot, which restricted the flow of blood through his heart. In Jason’s case, the defect prevented his blood from carrying enough oxygen to his organs and limbs.

By the time he was two, Brian Fox said his son had already undergone seven cardiac catheterizations at Children’s Hospital of Philadelphia to widen the arteries that carry blood to his lungs.

Doctors in Philadelphia finally referred Jason to Dr. Lock, widely considered a pioneer in the use of catheterization to repair cardiac birth defects. On April 18, 2003, Jason went into Children’s Hospital in Boston for his second catheterization in Boston.

Hours after the procedure, he suffered a seizure. According to a subsequent CAT scan, contrast dye had leaked into his brain.

After the initial seizure, two MRIs were done to determine the extent of brain damage. The first MRI showed a tiny piece of metal had become lodged in Jason’s brain, which the lawsuit alleged was caused by carelessness with one of the instruments used during the catheterization. During the second MRI, Jason’s heart rate dropped and doctors had to resuscitate him.

He was discharged three weeks after the surgery with severe brain injuries, and died in December 2004.

Alterations in the records

The pivotal documents in the case, according to James Fox, were the anesthesia record and Jason’s medical record.

Fox said there were a number of inconsistencies that stuck out, including the fact that the anesthesia record had been signed off on by a physician who wasn’t present during the administration of Propofol, an intravenously induced anesthetic. (The drug gained notoriety earlier this year after allegations that Michael Jackson abused it prior to his death.)

Another inconsistency came to light in Jason’s electronic medical record. One attending physician revealed during his deposition that he had made note of several key events during Jason’s stay, but those weren’t evident in the record. The physician insisted he made them electronically, and later provided a printed copy of the electronic record.

“When we saw it, it was identical to the printed record, but there were ten additional lines,” said James Fox. “So we started looking at the electronic record for dates and times when the information was put in, and we could see on a number of occasions that doctors had logged in [afterward] and changed the information.”

According to James Fox, the records included an adjustment in the dosage of epinephrine during resuscitation, which the complaint alleged had been botched. The plaintiffs also uncovered a cardiologist’s note from the hospital’s ICU diagnosing Jason with “contrast toxicity due to high contrast load.”

“They screwed with major parts of the record, especially the ICU note,” charged James Fox. “That was a very damning indictment of Dr. Lock, and that note became the centerpiece of our liability argument against him.”

Doctor on the stand

According to both James and Brian Fox, jurors informed them after the trial that they were displeased with the arrogance Drs. Lock and DiNardo displayed over the course of the trial.

James Fox said that his strategy was to get jurors to see that despite their admirable credentials (both men have been cited in hundreds of publications and written textbooks), the doctors had made a mistake and simply assumed that their clout would get them off the hook.

As part of this strategy, James Fox was looking for younger jurors, who he believes are more skeptical of the medical profession. In fact, the final jury didn’t include a single juror over 40.

Both doctors took the stand. James Fox said that he made it a point to cover even the smallest details of the procedure performed on Jason.

“I grilled [Dr.] Lock for a good day, going into a lot of detail, said Fox. “I asked how you set up the infusion pump. I asked him if he gave .3 ccs or .03 ccs. He kept getting more and more frustrated until he yelled out, ‘I don’t make mistakes!’”

After six weeks of trial and four hours of deliberations, the jury awarded $5 million for Jason’s pain and suffering, $5 million for his parents’ loss of their child and $5 million for wrongful death.

But James Fox said they won’t see the entire $15 million, because the parties agreed to a high-low agreement during jury deliberations. He declined to elaborate on the specifics of the settlement.

Even though James and Brian Fox are first cousins, before this case they had only met a few times in their lives.

“I only knew a little about Jason, and I never met him,” said James Fox. “But Brian and I spent a lot of time on the road together, tracking down people for depositions. I got to know him pretty well over the course of this case.”

“Lawyers are usually told to avoid conflicts of interests,” noted Brian Fox. “And here we had an absolute conflict, bringing in a family member. But all of the key strategic decisions were his, and I’m glad it worked out this way.”

Plaintiff’s attorneys: James Fox of Fox & Fox in Sherman Oaks, Calif., David Chaffin of White and Williams in Boston; Karen L. Kruskal of Pressman and Kruskol in Cambridge, Mass.

Defense attorney: William J. Dailey, Jr. of Sloane Walsh in Boston.

The case: Fox v. Boston Scientific Corporation, et al; Dec. 18, 2009; Suffolk County Superior Court, Boston, Mass.; Judge Christine Roach.

Questions or comments may be directed to the writer at: justin.rebello@lawyersusaonline.com

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