Wichita Eagle
Fri, Sep. 03, 2004

Malpractice lawsuit against Wesley opens

BY RON SYLVESTER
The Wichita Eagle

A Wichita malpractice lawsuit that's stirred controversy from the statehouse to the state Supreme Court finally went to trial Thursday after nearly seven years of court battles.

Rob Neises and Angela Raney-Neises are asking a jury for more than $35 million to help care for their daughter Ashley Raney-Neises, now 6, who has had cerebral palsy since birth.

The family is also seeking $10 million in punitive damages against Wesley Medical Center -- which delivers more babies than any other hospital in the state -- and the Wichita program that oversees resident doctors in training.

The punitive damages are based on claims that the hospital and doctors conspired to change medical records and cover up negligence that the family thinks caused Ashley's brain injuries.

Lawyers for the doctors and hospital say test results will show that Ashley's birth defects were caused by genetics and a bacterial infection -- not by substandard health care.

What the jury will not hear is the long, contentious battle that has taken so long to bring this case to trial.

This suit and a similar case stalled in 2001, when the Kansas Legislature passed a law shielding hospitals and medical training programs from liability due to negligence by resident doctors.

At the request of Wesley and the Wichita Center for Graduate Medical Education, lawmakers made the law retroactive to July 1, 1997 -- four months before Ashley's birth.

The law effectively killed both lawsuits. But after a federal judge in the other case ordered the Kansas Supreme Court to review the law, the high court in March struck down the retroactive provision.

To prove their case, evidence must show that, more likely than not:

Doctors practiced medicine at standards below what the community ordinarily expects.

Such performance caused injuries that resulted in Ashley's brain injury.

Don Andersen, a lawyer for Ashley and her family, told the jury in opening statements that Wesley nurses and residents should have caught changes in the fetal heart rate, warning them that Ashley was in trouble during her mother's labor.

"She went 15 minutes without oxygen," Andersen said.

But lawyers for Wesley and the doctors say the variations in the fetal heartbeat were not uncommon.

Ashley's birth defects, the health care providers claim, resulted from genetic causes and a bacterial infection known as chorioamnionitis.

"What we have is an unfortunate double-whammy," Wesley lawyer John Gibson said.

Both Gibson and David Wooding, lawyer for the resident doctors, said any changes in the medical records were made to correct errors, not to hide them.

This is the second lawsuit Wesley and its obstetricians have faced this summer over birth injuries. A jury in an earlier trial, which lasted two months, found that the hospital and doctors were not at fault.

This trial, before Judge Paul Clark, is expected to last six weeks.

Reach Ron Sylvester at 268-6514 or rsylvester@wichitaeagle.com.