A lawyer representing a doctor accused of negligence in the death of a 6-month-old boy said he was shooting at a moving target as the plaintiffs’ team changed its reasoning during trial as to why his client should be held responsible.
Peters & Monyak partner Jonathan Peters said his client, a pediatrician, was initially accused of improperly prescribing a medication that federal regulators declared should not be administered to such a young child. When that claim didn’t seem to gain any traction, he said, the plaintiffs shifted to painting the doctor as failing to diagnose the seriousness of the child’s condition in the first place.
In the end, said Peters, a Macon jury took one hour to find his client, Dr. Obioha Okoro, not liable for the child’s death.
"One of the notable things for me was that, in a case involving the death of a 6-month-old child, the trial moved so quickly and efficiently," Peters said. "We struck a jury on Monday, and had a verdict by Wednesday afternoon."
The attorneys representing the parents, Craig Webster of Tifton and Blake Smith of Macon’s Nelson & Smith, did not respond to requests for comment.
Peters noted that the trial was the second time the case had been before a jury—a previous attempt was declared a mistrial—and said he didn’t think there would be an appeal.
The case began in March 2001, when Camilla Hughes took her son, Samuel Johnson, to the emergency room at Coliseum Medical Center in Macon because the child was experiencing diarrhea. According to the defense portion of the pretrial order, Samuel’s abdomen was soft, not tender or distended, and there were "positive bowel sounds." He was diagnosed with colic and a mild upper respiratory infection and prescribed medications to treat gas and cold symptoms.
At about 6 p.m. the next day, Hughes returned to the emergency room and said Samuel had been vomiting all day, Peters said. Okoro diagnosed the child with gastroenteritis and prescribed a nausea-suppressing drug, Phenergan. Okoro told Johnson to use half of one of the 12.5 milligram suppositories every 12 hours for three days.
The plaintiffs’ portion of the order said Samuel was given a half-suppository about 10 p.m. that night. Eight hours later, it said, Samuel stopped breathing and was taken by ambulance to the Medical Center of Georgia, where he was pronounced dead at about 9 a.m. An autopsy and drug test, according to the defense portion of the order, concluded that Samuel died of sepsis and primary peritonitis, a bacterial infection of the lining of the abdomen.
In 2003 Hughes and Samuel’s father, Kenny Johnson, filed a wrongful death suit against Okoro and his practice, Central Georgia Pediatrics, as well as Coliseum Medical Center and two emergency room staffers.
There was never any mediation, Peters said. Okoro rejected the plaintiffs’ demand for the $1 million limit of his ProAssurance Indemnity insurance policy and made no counteroffer.
By the time the case first came to trial in 2008, the plaintiffs had dismissed the medical center and its staffers from the suit without any settlement, said Peters.
"[The plaintiffs'] initial approach was that the child did, in fact, die from primary peritonitis, and that both we and the emergency room [staffers] were at fault," Peters said. "Later, they abandoned that approach, and by the time of the first trial, they … were only going against Dr. Okoro, arguing that the child died of respiratory depression caused by the Phenergan."
That trial ended in a mistrial in 2008 because of a hung jury, Peters said.
Five years later, the case went back to trial before Bibb County State Court Judge William Adams. With Peters at the defense table was firm associate Jeffrey Bazinet.
A key portion of the plaintiffs’ case involved the advised uses of Phenergan. The Physicians’ Desk Reference in 2001, said Peters, recommended that the drug be prescribed only for patients older than 2 years. Later, the Food and Drug Administration issued a "black box warning" prohibiting prescriptions by children under 2 entirely.
"Their thrust was that the PDR had it written in black and white that Phenergan was not approved for children under 2," Peters said. "Our response was that, yes, while the PDR does have that language, it has that language for about 75 percent of all the drugs listed, because they’re not tested on young children. We had testimony that, in 2001, Phenergan was being prescribed for children as young as 6 months."
"The challenge for us was that the PDR was changed to include a black box warning, but we were successfully able to limit the evidence to the 2001 time-frame," he said.
Key plaintiffs’ witnesses included the medical examiner who performed the autopsy, Melissa Sims, and a pediatric neurologist from Miami, Robert Cullen, Peters said.
Defense experts included Chicago pediatric neurologist Louis Ling, who testified that the Phenergan should have been out of Samuel’s system by the time he stopped breathing, and Stone Mountain pediatrician Joseph Rosenfeld, who testified that the drug’s usage on the child was within the standard of care in 2001, Peters said.
"The trial started out with [Samuel's death] being caused by the Phenergan, then the theory changed in midstream," said Peters, with the plaintiffs’ team arguing that the child had been so sick that Okoro should have admitted him to the hospital instead of sending him home.
"As the trial evolved, I think plaintiffs’ counsel realized they were done both on Phenergan being within the standard of care, and that it was not the cause of death," Peters said. "By the end of the trial, the thrust was that Dr. Okoro saw the child at 6 p.m. the night before and did an inadequate examination."
Hughes, the boy’s mother, testified that, when she took Samuel in the night before he died, he had been listless. But Peters said he disclosed during his closing arguments a note written by the admitting ER doctor—not Dr. Okoro—saying that Samuel’s mother reported the child was "alert and happy" the night before his death.
"It was in evidence, but we hadn’t raised it before," he said.
"I think, at that point, the plaintiffs’ attorney knew he had nowhere to go, and he tried to argue that Dr. Okoro had written the note," said Peters. "It was sort of a ‘Hail Mary’ pass—the note wasn’t in [Okoro's] handwriting," said Peters.
Webster and Smith split their closing arguments, Peters said, and asked the jury for $2.5 million in damages.
The jury issued a defense verdict late on Jan. 30.
The members were generally well educated and included a pharmacist, engineers and educators, Peters said.
The jurors did not stay to speak with the parties of lawyers, he said.
"As often happens in a defense verdict in a sad case, they exchanged pleasantries and left," Peters said. "But I think that they only took an hour speaks volumes."
The case is Hughes v. Okoro, No. 053227.