Can there be justice when your child’s life has been stolen by caregivers who didn’t seem to care? No, not really. Is there justice possible for Eleni, who knew so much suffering in her short life? Never. But there can be accountability, apology, recompense and financial support for the cost of those grevious mistakes.

I had no prior legal experience, but we made some enquires in the months that followed Eleni’s birth in 2015. A local firm referred us to Janet, Janet and Suggs, who is a national leader in birth injury cases. They accepted us as clients because there was a case for negligence. Thus began a seven year trek that eventually cumulated in a trial, June of 2022.

Getting to Trial

But that’s skipping ahead. First, ask yourself why we had to wait 7 years to go to trial? The events in question occurred in the space of a few days. All the records were available and evidence gathered within a couple years. What followed was a series of delay tactics by the defense, who hoped to discourage us.

Time and again the judges involved would allow the defense lawyers to push back deadlines on feeble excuses. It was so painful for us to wait in limbo and expensive for our lawyers, who carried the entire legal cost at their own risk.

So much for a fair and speedy trial.

You may be wondering if we didn’t try to settle. I had mixed feelings about that since it doesn’t necessarily provide accountability. Still, the justice process is apparently (super!) slow and expensive, so we were willing to settle.

Two parties were sued on Eleni’s behalf: the doctor and the travel nurse agency who provided the nurse in question. The nursing agency was willing to settle, but only for a paltry sum that wouldn’t even cover Eleni’s medical expenses. The doctor, on the other hand, told his lawyer that he was not willing to settle at all, regardless of legal advice. Thus it became pretty clear that we would have to go to trial. It was not until fall of 2021 that a date was finally set, for June of 2022.

How Trial Works

In the state of South Carolina a civil trial like Eleni’s is decided by a jury of 12. The trial must occur in the county where the incident took place, thus we found ourselves this June back in Newberry, just miles from where she was born.

The jury is formed from randomly selected residents of the county. In the potential jury pool were people who knew the doctor in question. In fact, a woman who had worked for the doctor in the past insisted she could be an impartial juror. Eleni’s legal team used one of their “strikes” to remove that person from the jury pool. Eventually the 12 people were randomly selected and seated in the jury box.

It is surreal to find yourself face to face with the people who will make such a critical decision. I felt like I’d been waiting my whole life to be heard, while oddly enough they didn’t want to be there at all. They sat across from us looking resigned and wary, yet they represented our only hope for justice.

Since we sued two parties, there were two legal teams for the defense side. That means the jury would hear twice as much from the defense as from Eleni’s team. Evidence and arguments were given for a total of seven days, which is a longer-than-average trial. Once the lawyers were finished, the jury members can discuss the case privately amongst themselves. They had to reach an unanimous verdict on three questions:

1. Did the doctor and/or nurse fail to meet the standard of care?

2. If so, was that failure a contributing cause of Eleni’s injury?

3. If so, what monetary damages should be awarded?

My Experience

Oh my, it was intense! I was so eager to hear everything, evaluate all the evidence and hear what the jury would decide. I burst into tears when the judge read out the name of the suit at the very beginning, “The estate of Eleni Laura Hauser against….” There she was, my baby, asking strangers for justice. I cried because it was finally happening. The waiting was over, and I was so glad for that, but also so sad that it had come to this.

Our lawyer, Mr. Suggs, is a kind, older man with decades of experience trying birth injury cases. He spoke gently and directly to the jury, so I sometimes found him hard to hear. Mr. Suggs inspires trust and compassion. He’s like a wise grandfather that you know really cares. I could see that he was thinking, thinking, thinking all the time and choosing his questions carefully. I was grateful to have him represent Eleni.

The doctor’s lawyer was off-putting from the beginning. His way of talking was soooo disingenuous and even his mannerisms were cringe-worthy. Like literally, I would sometimes feel sick watching him move as he questioned people. I dubbed him “the rat” from day one. His pinched face and beady eyes suited the moniker perfectly.

But the nursing agency’s lawyer was different. He was handsome and young, quite like a confident TV lawyer. He had a way of oversimplifying the situation that struck me as dangerous right from his opening statement. Speaking loudly, clearly and with dramatic pauses, he was just plain persuasive - even if he had little of substance to say.

During the trial I cried bucket-loads. Eleni’s team of medical experts and witnesses went first, testifying to what should have occurred, i.e. what the standard of care required. I did not expect to be overwhelmed by this, but hearing people say that X should have been done and that it would have saved her was incredibly powerful to hear. I had needed desperately to hear those words.

I soaked up all the information, all the details that I hadn’t known yet. For example, I learned about the nurse’s charting, and how it obviously showed that Eleni failed the stress test and should have been c-sectioned by the doctor’s own definition. I learned about a nurse’s responsibility to inform the patient in lay terms and to intervene if the doctor does not. I learned that she could have even turned off the Pitocin. She could have simply requested the internal fetal monitor. And on and on.

Along with the jury, I learned how to read an electronic fetal monitor strip. I cried when they transitioned from the educational strips to Eleni’s strip, as the countless decelerations on the strip literally illustrated her struggle for anyone with eyes to see.

When Brandon gave his testimony, I cried from him, for us, for the emotion in his voice. Then I tried to pull myself together because I was next on the stand. Giving testimony was something I had been both looking forward to and dreading all these years. I so wanted to speak, to say that the doctor wasn’t even THERE all night (at least not in my room) and to make clear that he never advised a c-section until the morning she was born and that no one even told me the results of the stress test. I was eager, but I was scared. I was scared I would fail her in some way, by some trickery or poorly chosen phrase.

In the end, my turn on the stand seemed to fly by. I would of, could of said more, and I was glad when my lawyer decided to call me back to the stand to clarify some details later on. The worst part of testifying was speaking to her pain and suffering. It was necessary to do this in order to “prove” Eleni’s pain and suffering, as well as our own. When my lawyer asked me to describe how Eleni typically breathed, I grasped for words while the tears ran wild.

The Arguments

I’ll try to be brief. First you need to know that in a trial like this, both sides bring medical experts to testify to their version of the events. The experts disagree with each other about everything that’s critical to the case. Thus, the jury has to decide which experts to believe.

That’s no easy task, I understand; still, I was pretty convinced when I compared the quality of our experts to theirs. For example, the most important piece of evidence related to causation/timing of injury was a brain ultrasound scan. Our medical expert for this evidence is a professor at Yale who teaches ultrasound readings and regularly reads such ultrasounds in real-life practice. Their expert is a MRI expert, who hasn’t officially read an ultrasound in 12 years.

The defense couldn’t attack the credibility of our experts, so they tried to water down their testimonies. Some of the defense' experts, on the other hand, had quite suspect motivation. For example, one of their experts receives patient referrals from the doctor being sued and also went to medical school with the doctor’s partner. Bias anyone? Several of their experts always testify for the defense in birth injury trials and always say that the damage happened before the baby came to the hospital, which is what the defense also claimed in Eleni’s case. Our lawyer demonstrated in the cross-examination that their expert had testified to the exact opposite medical reasoning in a previous trial of the same kind. So, either he was lying then or we was lying now? Their nursing expert tried to prevent our lawyer from reading from the very book that she teaches nursing from, claiming that it was not a reputable book.

In some ways watching the trial was fascinating to me. I love details and a good, rational argument. But somewhere along the way I started to worry, because it was all so very complex. Still, I hoped the jury could see through the conflicting testimonies to find the truth.

I thought it must be obvious that the nurse was lying when she claimed that I did pass the stress test. She claimed, as a last resort, that I actually had several contractions in the 15 minutes before she ever started charting (and immediately upon receiving Pitocin, though my contractions mysteriously slowed down after that once she started charting). I mean, really, who would believe that? There was no evidence for this whatsoever on the electronc fetal monitor strip, and she had just testified that she remembered nothing other than what she wrote down that day.

I was definitely shocked when I realized that the doctor had in all likelihood falsified a blood test to protect himself, and that is why he wouldn’t settle. Let me explain.

After Eleni was born limp, unresponsive and not breathing, the doctor took a cord blood sample that should have indicated how oxygen-deprived she was. That cord blood sample came back perfect, actually better than the normal range for newborn infants. (The sample had more oxygen than carbon dioxide in it and a perfect PH.) It’s easy to accidentally draw the blood that is going from the placenta to the infant, instead of the blood that’s going from the infant to the placenta. Both tiny blood veins are in the umbilical cord. The best practice is to draw samples from both veins so that you can compare and confidently know which is which. Conveniently, our doctor only drew one sample, which he said was the blood coming from Eleni to the placenta. His legal team called this proof that Eleni was not oxygen-deprived when she was born. They claim that she was injured before she came to the hospital, but that during labor she received abundant oxygen. To believe this you have to ignore the other evidence (the heart rate decelerations, the fact that she was born blue/limp/no respiration, etc.). This was the defense’s key argument.

The Jury + Verdict

Let’s return to our jury, the 12 random people being forced to listen to this heartbreaking and medically complex story for seven long days. As it happens, only two jury members had a college education. Missing work to be at trial may be a financial hardship for most of them, since jury members are paid less than minimum wage for their vital contribution to the process.

During the trial, four or so jury members had a habit of nodding off or fully falling asleep. Not kidding.

At the end of this ordeal, the TV-style lawyer for the nursing agency was the last to give a closing statement. He’s clever. He focused their attention on the testimony from the defense medical expert that had made the jury laugh. That expert had testified that the cord blood sample proves that Eleni was injured before she came to the hospital. The expert said that even if Eleni was c-sectioned immediately when we arrived at the hospital, it wouldn’t have made a difference. With confidence and oratory skill, the lawyer said, “It is not scientific to leave out a piece of the puzzle.” The cord blood sample “just doesn’t fit.” The jury must consider “all the evidence.”

The jury deliberated for a meer 40 minutes. They told the judge afterwards that it was the cord blood test that convinced them not to give a verdict for Eleni. Nothing had to be proved beyond doubt, mind you. By law they only had to conclude that 51% of the evidence was for our side and 49% for the defense. If there was more evidence for us than against us, that was enough to rule in our favor as per the judge’s instructions.

The jury members filled out the jury form like this: Yes, the doctor and nurse did meet the standard of care.

Isn’t that heartbreaking? They didn’t even say “fail” to the standard of care, but then declare that causation wasn’t proved. It seems like they filled out the form as quickly as possible. They made an unanimous decision in record time while eating pizza and were shortly thereafter released to go back to their lives.

We sought justice, but there is no justice here for Eleni or for us. I fear there is no justice here for you either, dear reader.

I am sorry I could not bring better news, and I hope your lives will never be at the hands of such a justice system.

Together in sorrow,

Rachel Hauser