Huntsville Hospital Kills Child: Permanently Disabled 1y/o Later Died

Welcome to Alabama, where the legal concept of respondeat superior apparently does NOT apply.

Some would call this murder.

If a person driving drunk kills someone, nowadays, they’re charged with murder – even though they did not plan, or intend upon killing someone (the element of premeditation, or forethought).

But why isn’t Huntsville Hospital charged with murder? (It’s kinda’ difficult to charge a corporation with murder, but it’s quite possible that the officers can be indicted or charged.)

And why aren’t those directly responsible (those in the Recovery Room who were responsible for Gracie’s care) charged with Murder?

It’s painfully obvious some things MUST change in Alabama regarding healthcare.

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Girl disabled, later dies, after tonsillectomy at Huntsville Hospital; Alabama public hospitals‘ liability capped at $100,000

By Challen Stephens | cstephens@al.com on December 03, 2012 at 1:03 PM, updated December 03, 2012 at 4:18 PM

Randy Smith and Deedee Smith talk about raising a child with disabilities while Gracelynn, 5, sits in her wheelchair during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

HUNTSVILLE, Alabama — Four years ago, Gracie knew a few dozen words and had just learned to walk backwards. But Gracie had a little trouble breathing at night. Doctors said it would only get worse, so they decided to remove her tonsils.

The surgery lasted less than 15 minutes.

In the recovery room at Huntsville Hospital, Gracie was standing on her bed calling for her mother. “We were told she was having difficulty coming out of anesthesia,” said her father Randy Smith. Nurses said the girl needed to rest to recover. In the recovery room, the family says, she was allowed to stop breathing for more than 10 minutes.

Dan Aldridge, attorney for the Smiths, said Gracie “was not connected to the customary monitoring equipment that sounds an alarm if vital signs reach a dangerous zone.” He said the nurses, three of them, were in the recovery room. At one point, her mother voiced concern. “I was told, ‘Mom, now don’t wake her up, if we get her up, we will never calm her down,” said Dee Dee Smith. “My response was she was not breathing.”

Dee Dee said one of the nurses touched the girl’s foot. It was cold. Aldridge said “code” was called. Medical staff poured into the room. Gracie would spend the next 18 hours in a coma. When Dee Dee finally got to hold her girl again, the girl’s eyes were open but unmoving. She had no muscle control. “She was just jello,” said Dee Dee of the moment she got her baby back.

Deedee Smith shows the feeding port they must put into Gracelynn’s stomach wall to feed her during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

Huntsville Hospital has immunity for anything over $100,000, which Aldridge says the hospital offered to settle Gracie’s claim. That was years ago.

In Alabama, $100,000 is the limit on liability for a public hospital, although there is no limit on individual liability for doctors and nurses.

Weeks of uncertainty

Over the next two weeks, the recovery room nurses came to visit the girl until the family asked them to stop. Gracie no longer spoke. She didn’t appear to be able to see nor have any recognition of her surroundings. She didn’t move. The Smiths say hospital nurses told them the girl was recovering from the coma. They believed she would get better.

“It was so uncomfortable. You could tell by the way everyone was acting that something did happen,” said Dee Dee. “We knew there was a loss of oxygen.”

Two weeks later, the family says, the hospital packed them into an ambulance and sent them to Children’s Hospital in Birmingham. They say they thought they were going for treatment. “In my mind, they were telling me they were going to make her better,” said Dee Dee. But in Birmingham, they learned the truth. They were there to learn how to care for a permanently disabled child.

Gracie was trapped inside an uncooperative body, not paralyzed, but with limited control of her limbs. She could no longer speak, but could make sounds, humms and ahhhs, which her parents learned to interpret as amusement and irritation and even giggles. At times, she was having more than 50 seizures an hour in June. Sometimes they could see the convulsions, sometimes they couldn’t.

At first, Gracie’s twin sister quit eating. Less than two years old, Gabby wouldn’t play with her Christmas toys, not the year her sister was injured. In fact, Gabby turned against Santa Claus, connecting the incident with the holiday. During a hospital visit for a scan, the now five-year-old Gabby told the nurses to do their job, that the hospital had made her sister sick. She’d become protective. Sometimes she would take her sister to the girl’s bedroom for dress up.

Huntsville Hospital does not comment on ongoing lawsuits, said hospital spokesman Burr Ingram, when asked about the Smiths.

Health Care Authorities Act

Huntsville Hospital was authorized by the city, but more recently licensed as a health care authority until the 1982 Health Care Authorities Act. That state law specifically placed Huntsville Hospital under the same protection given cities, counties and their departments in 1977.

Attorney Dan Aldridge looks on as Randy and Deedee Smith talk about their daughter, Gracelynn, 5, during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

“The recovery of damages under any judgment against a governmental entity shall be limited to $100,000 for bodily injury or death for one person in any single occurrence,” reads 35-year-old law protecting the public treasury from bankruptcy.

But in 1977, $100,000 was a more substantial sum. According to the Bureau of Labor Statistics, the 1977 cap would work out to $381,711 today.

“Whether they take off the wrong leg or blind them or kill them, their liability is just $100,000,” said David Wirtes, a Mobile attorney who has developed an expertise in state law governing hospitals.

Wirtes argues there is a basic fairness issue, that patients injured at health care authorities don’t have the same rights as patients injured at private hospitals. And most of them have no idea. That violates the state’s equal protection clause.

The cap does not apply to injury or deaths inside private hospitals, such as Crestwood. “There is no limit,” said Wirtes.

Dependent on Medicaid

Her daddy calls her Gracie. Her mother calls her Gracelynn. Each night, they would let her sleep in their bed. In the morning, Gracie would wake her parents with push or a jostle, sometimes with a poke in the face.

Randy Smith shows a medicine cabinet filled with Gracelynn Smith’s daily medications during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

They would serve breakfast through a tube which connected to a plastic button poking out of the little girl’s stomach. Then they would put her in her chair and give her the morning meds through 10 syringes. To prevent seizure, to prevent drooling, to stop her muscles from firing randomly. She would get 10 more each night. In their home outside Athens, the Smiths had dedicated a cabinet above the dishwasher to Gracie’s medicine.

For medicine and doctor’s visits and therapy, the Smiths were left to depend on Medicaid, the national safety net for those below the federal poverty line. Alabama’s Medicaid program last year received $3.9 billion from the federal government, but the state also put up $1.4 billion.

Nearly half of Alabama children are eligible today. Expanding costs prompted voters this year to allow Alabama to take $147 million a year from its main savings account to prop up Medicaid.

In Limestone County alone, Medicaid spending reached $60 million last year.

No communication

For two weeks, Dee Dee Smith did not leave Huntsville Hospital, sleeping near her girl.

Randy Smith, Gracelynn Smith, 5, and Deedee Smith during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

That first night at Children’s Hospital in Birmingham, a doctor told them both that Gracie’s odds of recovery would be better if she had been shot in the head. As hard as it was, that moment when they learned how much they had lost, it’s a moment they now say they are thankful for. They say for two weeks no one at Huntsville Hospital ever accepted responsibility, explained the extent of the injury, or apologized.

No one ever spoke for the hospital, they both said. “We never have had any correspondence with anybody,” said Randy. “It might have made it sting less.’

“Accountability,” said Dee Dee. “I would like them to say, ‘Yes, indeed it did happen. We are responsible. We take responsibility. We apologize and we are going to do what’s right.'”

31 health care authorities in Alabama

“This case personifies how unjust that $100,000 cap is when applied to a multi-million conglomerate under the guise of being an agency of the municipality,” said Aldridge, who filed suit against Huntsville Hospital and the three recovery room nurses.

Attorney Dan Aldridge talks about the Smith family before an interview at a restaurant Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

Most of Alabama’s 132 hospitals are not licensed as health care authorities and do not operate under the 1982 act. Most are private, with no protection under state law. In Alabama, 23 hospitals are licensed as private corporations, 30 more as limited liability companies and 26 as private non-profits, like Children’s Hospital in Birmingham.

Just 31 are licensed as health care authorities, and most of those are small operations with fewer than 100 beds. Huntsville Hospital is by far the largest health care authority in the state, licensed for 881 beds.

Others enjoying the protections of Health Care Authorities Act include Southeast Alabama Medical Center in Dothan, Highlands in Scottsboro, East Alabama in Opelika, Athens Limestone Hospital, Baptist Medical Center South in Montgomery, DCH Regional in Tuscaloosa and Medical West in Bessemer. Huntsville Hospital is more than twice the size of all of the others, save DCH, which still has 300 fewer beds than Huntsville.

Public or private?

Speaking in general terms, Huntsville Hospital officials say the cap serves to protect the hospital from frivolous lawsuits.

“I no longer live in an invisible bubble,

where I expect that Gracelynn,

the girl I took to the hospital,

will come back.”

Gracelynn Smith, 5, looks out the window as her mother, Deedee Smith, talks about the difficulties facing Gracelynn during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

Wirtes, who has no cases involving Huntsville Hospital, has disagreed with other Alabama hospitals that have made the same argument. “This is about money. It’s all about money,” said Wirtes. “They are trying to immunize themselves and their friends in insurance.”

The $100,000 cap stems from a law protecting the public treasury, but there are few governmental connections at Huntsville Hospital. The City Council still appoints the governing board. But even this process was amended by the Legislature, and the board itself provides a list of replacement nominees to the council.

Huntsville Hospital officials note they receive no public money and provide indigent care. By law, health care authorities are exempted from state open meetings requirements and their board members are exempt from the state ethics law. No other “government entity” enjoys such privacy. Hospital officials, including CEO David Spillers and board chair Phil Bentley, say such secrecy is necessary to allow for effective competition with private for-profit medical providers. They say otherwise Crestwood could know every move they made.

And Huntsville Hospital has been quite successful at business, winning the rights to operate in Madison, forming relationships with medical providers in surrounding counties, and recently opposing Crestwood Hospital’s expansion of angioplasty. The state Health Care Authorities Act does not bind such a hospital to a county or even to the state, creating a local government entity that could buy and run a hospital in Hawaii or Idaho.

In short, Huntsville Hospital is able to function as a private entity when it comes to business competition or public scrutiny. But Huntsville Hospital functions as a public entity when not paying property taxes and when limiting liability to $100,000.

Funeral on Wednesday

Gracie, like her twin sister, had attended Tanner School, which supports more advanced special education services. She communicated by blinking once for yes, giving a hard stare for no. Late last month, while entertaining Gracie in the living room, her mother said that Gracie liked modern country, liked her stepsister’s hip hop. She didn’t like little boy cartoons, sprinklers or having to wear the orthotics to keep her toes from pointing down. Out of her chair, Gracie could maneuver through the house, propelling herself around on her back.

Nov. 17 marked four years since the tonsillectomy. “We celebrated,” said Dee Dee. “We spent four years in a cesspool of grief. Having surfaced from that we decided we’d have cupcakes and Taco Bell.”

Gracelynn Smith, sits in her wheelchair in the living room during an interview in their home Monday, November 19, 2012 in Athens, Ala. (Eric Schultz / eschultz@al.com)

At first, Dee Dee blamed Randy, Randy blamed Dee Dee. They each blamed themselves, blamed the doctors, the nurses, the hospital. In the end, they say they learned to move toward acceptance, to stop blaming others and to stop waiting on the moment that Gracie would be normal again. They relied on one another and on the church.

“I no longer live an invisible bubble,” said Dee Dee late last month, “where I expect that Gracelynn, the girl I took to the hospital, will come back.”

On Saturday, four years and two weeks after the tonsillectomy, Gracie died at Athens Limestone Hospital. She had struggled with myriad medical complications, including infections, seizures and respiratory difficulties. “She fought so hard to stay alive,” said Aldridge.

The funeral for Gracelynn Smith will be at 2 p.m. Wednesday at Limestone Chapel in Athens. Visitation is from 6 to 9 p.m. Tuesday at Limestone Chapel.

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http://blog.al.com/breaking/2012/12/tonsillectomy_at_huntsville_ho.html