RAWAA FADHEL, as Parent and Next Friend of KAWTHAR O. ALI, a Minor. NORTON HOSPITALS, INC. D/B/A KOSAIR CHILDREN S HOSPITAL, et al.

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1 NO. 14-CI JEFFERSON CIRCUIT COURT DIVISION NINE (9) HONORABLE JUDITH McDONALD-BURKMAN RAWAA FADHEL, as Parent and Next Friend of KAWTHAR O. ALI, a Minor PLAINTIFF vs. PLAINTIFF S TRIAL MEMORANDUM NORTON HOSPITALS, INC. D/B/A KOSAIR CHILDREN S HOSPITAL, et al. DEFENDANTS ELECTRONICALLY FILED ** *** *** *** *** *** *** *** ** Pursuant to this Court s Pretrial order, Plaintiff, Rawaa Fadhel, as parent and next friend of Kawthar O. Ali, a minor, by counsel, respectfully submits this Trial Memorandum for this action set for trial beginning January 3, 2016, and states as follows: This trial involves the negligent care by Dr. Cynthia Downard of Kawthar Ali during a right thoracotomy and rib resection performed on December 26, 2012 for Ewing s sarcoma. Dr. Downard s negligent performance of the surgery resulted in the removal of Kawthar s seventh rib without removal of the sixth rib, the rib identified to be involved with Kawthar s cancer. Such performance of the surgery not only subjected Kawthar to a second major operation for removal of a second rib and to the risk of recurrent cancer, it also constituted a reckless disregard to the health and safety of Kawthar for which punitive damages are warranted. It should be noted that the Norton/Kosair Children s Hospital has been dismissed and is no longer a defendant in the case. The Plaintiff is a child for whom suit is brought by her mother and next friend and the Defendants are University Pediatric Surgery Associates, P.S.C. and its employee, Cynthia Downard, M.D., a pediatric surgeon. 1 MEM : of

2 SUMMARY OF FACTS In the fall of 2012, Kawthar Ali, then just eight years old, was diagnosed with Ewing s sarcoma, a form of cancer that was located in her right chest wall. Kawthar s treatment plan included several rounds of chemotherapy, surgical resection of the remaining tumor, and radiation therapy. On December 18, 2012, following completion of Kawthar s chemotherapy, the Tumor Board at Kosair Children s Hospital met to review Kawthar s case and plan her future care. The Tumor Board consensus, based on preoperative imaging, was that Kawthar s Ewing s sarcoma originated from the right sixth rib. The plan was to remove the remaining tumor mass and the sixth rib, unless there were other ribs involved with the tumor. Right thoracotomy with rib resection was scheduled for December 26, 2012 to be performed by Dr. Cynthia Downard. Testimony from members of the pediatric group confirms that the goal of the Tumor Board was to remove the involved (sixth rib) and leave other ribs, and lessen the damage to Kawthar. During the surgery, Dr. Downard, assisted by Dr. Zaria Murrell, miscounted down to the seventh rib, rather than the sixth rib. In her deposition, Dr. Downard claims she encountered tumor encasing the seventh rib. Dr. Downard removed the miscounted seventh rib rather than the sixth. Dr. Downard, in fact, also encountered necrotic tissue on the overlying rib -- which was actually the sixth rib. As a result of Dr. Downard s failure to properly count the ribs and the failure to remove the involved sixth rib, Kawthar Ali was subjected to a second major operation on December 29, 2012 to remove the sixth rib, so that ultimately two ribs were removed, causing longer recovery and more significant anatomic changes. 2 MEM : of

3 ISSUES OF LAW AND FACT A. Liability of Defendants: Breach of Standard of Care and Causation. The first issue of law is the applicable standard of care required of Dr. Downard in treating Kawthar. Dr. Downard owed Kawthar the duty to use that degree of care and skill which is required of a reasonably competent practitioner in similar circumstances. Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970). Evidence, including expert medical testimony, the testimony of Dr. Downard, and Kawthar s medical records, will show that Dr. Downard did not comply with the standard of care under the facts and circumstances of this case. Assuming that Dr. Downard is found to have breached the standard of care, Plaintiff must prove that the negligence for which she is seeking damages was a substantial factor in causing her injuries. See Deutsch v. Shein, 597 S.W.2d 141 (Ky. 1980). In most medical negligence cases, expert testimony is required in order to establish causation. See Baylis v. Lourdes Hospital, Inc., 805 S.W.2d 122, 124 (Ky. 1991). Plaintiff will call Dr. Mark Scarborough from the University of Florida who will testify about the standard of care, breach, causation, and damages. Dr. Scarborough is Chairman of the Department of Orthopedic Surgery and Rehabilitation at his institution, Chief of the Division of Orthopedic Oncology and Director of the residency program. Dr. Scarborough is qualified to testify in this case, and his testimony is in accordance with the Kentucky Rules of Evidence. See KRE 702; see also Owensboro Mercy Health Sys. v. Payne, 24 S.W.3d 675, (Ky. App. 1999); Washington v. Goodman, 830 S.W.2d 398, 400 (Ky. App. 1992). He has testified that the failure to take the sixth rib during the December 26, 2012 operation was inexcusable. He is also to expected to testify that Defendants, Dr. Downard and University Pediatric Associates, PSC (for whom Dr. Downard worked in the course and scope of her employment), breached the standard of care regarding their treatment of Kawthar Ali. Their 3 MEM : of

4 breaches were a substantial factor in causing her injuries by forcing her to undergo a second, major surgery and additional excision of a rib. B. Damages. Plaintiff seeks the following damages as stated in her CR 8.01 disclosure: An amount for Kawthar O. Ali s past pain and suffering, mental and physical, not to exceed: $250, An amount for Kawthar O. Ali s future pain and suffering, mental and physical, not to exceed: $250, An amount for punitive damages, not to exceed: $250, TOTAL, not to exceed $750, KRS allows punitive damages where a defendant acted toward the plaintiff with oppression, fraud or malice. Malice is defined as conduct which is specifically intended by the defendant to cause tangible or intangible injury to plaintiff or conduct that is carried out by the defendant both with a flagrant indifference to the rights of the plaintiff and with a subjective awareness that such conduct will result in human death or bodily harm. KRS (c) (emphasis added). Punitive damages are also available under the common law where there has been a showing of gross negligence. St. Joseph Healthcare, Inc. v. Thomas, 487 S.W.3d 864, 870 (Ky. 2016). Gross negligence means a wanton or reckless disregard for the lives, safety, or property of others. Id. (quoting Gibson v. Fuel Transport, Inc., 410 S.W.3d 56, 59 (Ky. 2013)). Here, Plaintiff will show that Dr. Downard acted with reckless disregard to the health and safety of Kawthar Ali when she made the conscious decision to leave the sixth rib in place, although she knew that necrotic tumor was attached to the rib and the rib would need to be removed. 4 MEM : of

5 Respectfully submitted, /s/ H. Philip Grossman H. PHILIP GROSSMAN JENNIFER A. MOORE EMILY A. DeVUONO GROSSMAN & MOORE, PLLC One Riverfront Plaza 401 W. Main Street, Suite 1810 Louisville, Kentucky (502) (502) (fax) CERTIFICATE OF SERVICE I hereby certify that on the 2 nd day of December, 2016, I electronically filed the foregoing with the Clerk of the Court using the KYeCourts CourtNet 2.0 system. The following were served via electronic means in accordance with Rule 5.02(2) and/or the KYeCourts CourtNet 2.0 system: Donald K. Brown, Jr. Michael B. Dailey O BRYAN, BROWN & TONER, PLLC 401 South Fourth Street Suite 2200 Louisville, KY brownd@obtlaw.com daileym@obtlaw.com mchughk@obtlaw.com Counsel for University Pediatric Surgery Associates, PSC and Cynthia Downard, M.D. 5 /s/ H. Philip Grossman Counsel for Plaintiff MEM : of