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IN THE SUPERIOR COURT OF WASHINGTON FOR KING COUNTY KATHRYN LEE KIM, Guardian for H.K, a minor; and MARK KIM and KATHRYN LEE KIM, individually as the parents of H.K.,
10 11 12 13
Plaintiffs,
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES
v. SEATTLE CHILDREN’S HOSPITAL, a non-profit Washington Corporation, Defendant.
14 15
NO.
Plaintiffs allege: I.
INTRODUCTION
Upon the advice of his pediatrician, H.K., a toddler, was taken to Defendant Seattle Children’s Hospital by his parents. While in Defendant’s hospital, H.K. was misdiagnosed, incorrectly treated, and almost died. His resulting profound brain injuries were caused by Defendant’s negligence. To make matters worse, a skull piece that had been surgically removed, was rendered unusable as it was infected by Defendant’s long standing Aspergillus infestation within its premises.
COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 1 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
II.
1 2
2.1
PARTIES
Plaintiff Guardian Kathryn Lee Kim brings this action on behalf of the minor child
3
H.K, born February 9, 2017. H.K.’s parents, Mark and Kathryn Lee Kim residing in Kirkland,
4
Washington also bring personal claims.
5
2.2
Defendant Seattle Children's Hospital (SCH) is a nonprofit corporation organized
6
under the laws of the State of Washington authorized to do business in the State of Washington.
7
Its premises are located at 4800 Sandpoint Way Northeast, Seattle, Washington.
8 9 10
2.3
authorized to provide healthcare services to Plaintiff H.K. and related services to the parents. There existed a fiduciary health care provider-patient relationship between all the parties.
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Defendant is a "healthcare provider" within the meaning of RCW 7.70 and was duly
2.4
Defendant provided to Plaintiff H.K. medical care, treatment, and housing within
its facilities.
13
2.5
Defendant through its agents, employees, and contractors, acted at all relevant times
14
on behalf of Defendant and within the scope of their employment or agency (whether actual or
15
ostensible).
16 17
2.6
employees of the Defendant hospital.
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All of the health care providers who provided professional services to H.K. were
2.7
Defendant is vicariously liable for all of the acts of every health care provider who
provided professional services to H.K. in this matter.
20
2.8
If any of the health care providers providing professional services to H.K. were not
21
employees, then Plaintiffs reserve the right to individually name such non-employees as
22
Defendants by way of an amended complaint.
23
///
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 2 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
III.
1 2 3
3.1
JURISDICTION AND VENUE
The Superior Court of King County, State of Washington, has subject matter
jurisdiction over this action pursuant to RCW 2.08.010.
4
3.2
Jurisdiction and venue are proper in and for the Superior Court of Washington for
5
King County Seattle Division because the incident occurred at Defendant’s place of business in
6
Seattle, King County, Washington.
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IV.
COMPLIANCE WITH LAWS PECULIAR TO HEALTH CARE LAWSUITS
8
4.1
This action was commenced within the applicable statute of limitations.
9
4.2
Plaintiffs decline to submit this dispute to arbitration pursuant to RCW 7.70A.020.
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See attached Exhibit A. Their election complies with Washington Law. V.
BACKGROUND OF H.K.’S INJURY AND DEFENDANT’S MEDICAL NEGLIGENCE
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5.1
H.K. was a normal healthy two-year-old toddler when on April 16, 2019, he had
just returned from a fun trip to Disneyland with his family. He was chasing his four-year-old sister COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 3 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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in the family home. Kathryn and Mark were in the same room speaking to each other when they
2
heard a sound. They did not actually fully visualize the event but pieced together that H.K. had
3
run into the corner of a wall.
4
5.2
H.K. immediately began crying. He had no loss of consciousness. There was no
5
bruise, abrasion, swelling, or evidence of any injury to his head or body. After being consoled by
6
his parents, he soon returned to his normal baseline.
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5.3
At 4:00 am in the morning, H.K. woke. He communicated that his head hurt. He
8
vomited four different times. He did not have a fever but was lethargic and not acting the way he
9
normally did.
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5.4
The parents took H.K. to his pediatrician who was concerned and advised them to
take him promptly to Defendant’s emergency department. The parents did so. 5.5
Triage was performed and a CT Head without contrast was ordered by resident
physician Justin L. Willis, MD.
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5.6
No physical injuries to the head were observed by Defendant’s medical staff.
15
5.7
The radiologist determined that the CT showed no evidence of skull fracture or
16
significant soft tissue injury. But noted there was a subarachnoid hemorrhage (bleeding within the
17
subarachnoid space, which is the area between the brain and the tissue covering the brain) and a
18
small subdural hematoma (bleeding under the membrane covering the brain). Ezekiel J. Maloney,
19
MD; Angelisa M. Paladin, MD.
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5.8
The radiologist noted and informed Dr. Willis at 11:20 am, that although the
21
findings could be consistent with an actual physical injury, “an underlying soft tissue mass or
22
vascular abnormality is difficult to exclude. If the mechanism of injury is not concordant with the
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 4 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1
amount of blood product present, MRI could provide further characterization.”
2
Maloney, MD; Angelisa M. Paladin, MD.
Ezekiel J.
3
5.9
The first CT scan was not properly read or interpreted by Defendant.
4
5.10
All three planes of the first CT scan clearly revealed the presence of a large Middle
5
Cerebral Artery (MCA) aneurysm. The aneurysm was distal and located roughly one-half cm from
6
the surface of H.K.’s brain. Defendant completely missed this finding and fact.
7 8 9 10 11 12 13 14 5.11
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were sluggish. 5.12
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By 12:21 pm, H.K. was noted to be drowsy, lethargic, hypotonic and both pupils
Instead of performing an MRI, at 2:20 pm a second CT without contrast was
performed. This was read as stable with no additional areas of concern. Angelisa M. Paladin, MD. 5.13
19
All three planes of the second CT scan clearly revealed the presence of the same
20
large MCA aneurysm that also should have been seen when reviewing the first CT scan. Defendant
21
completely missed this finding and fact a second time.
22
///
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///
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 5 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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5.14
If an MRI had been performed at 2:20 pm, or at any other time, it would have shown
2
even more clearly the MCA aneurysm that went unnoticed when medical professionals failed to
3
properly review the two CT scans.
4
5.15
A neurosurgery consult was performed by resident John R. Williams, MD. He
5
reviewed the CT scan and determined that there was only a small amount of subarachnoid
6
hemorrhage, no subdural hematoma, and no intraventricular extension (from the hemorrhage
7
extending within a vesicle). Dr. Williams failed to note or observe the clear presence of the MCA
8
aneurysm. The attending neurosurgeon, Jason S. Hauptman, MD, PhD., reviewed Dr. Williams’
9
history, exam, plan and agreed with the resident’s incorrect assessment. H.K. was admitted to the
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neurosurgery floor for observation and symptomatic treatment. 5.16
A consult occurred at 6:04 pm confirming “…the next step is to obtain an MRI/A
12
to further characterize the intracranial findings in the hope of identifying a cause.” Emily Claire
13
Bagby Brown, MD, MS.
14
5.17
No MRI was obtained on date of admission April 17, 2019.
15
5.18
The next morning at 8:00 am on April 18, 2019, RN Blackburn notified by text and
16
page Lance ARNP of a change in H.K.’s condition, “Patient’s HR is lower, now in the 60s and
17
low 50s and irregular after his lab draw this morning. Come to assess?”
18
5.19
The change in H.K.’s condition signaled a medical emergency requiring medical
19
attention. The findings of bradycardia, irregular respirations, and widened pulse pressure
20
(increasing systolic, decreasing diastolic) are a set of signs known as Cushing’s Triad. These signs
21
develop from the body’s physiological nervous system response, recognized as the Cushing
22
reflex/response, to acute elevations of intracranial pressure (ICP). The Cushing reflex and
23
subsequent triad are warning signs of an impending cerebral event.
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 6 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1 2 3
5.20
No response to RN Blackburn’s request for assessment occurred until Code Blue
was called an hour and a half later at 9:30 am for decreased responsiveness. 5.21
A third CT scan - STEALTH was performed revealing, “new intraparenchymal
4
hemorrhage near the previously noted location of a hyperdense nodular area in the superior
5
temporal sulcus with associated intraventricular hemorrhage, midline shift, and mass effect,
6
including effacement of the peri mesencephalic cisterns, suggesting early herniation. As before,
7
this could represent sequelae of an underlying mass or aneurysm.” Ezekiel J. Maloney, MD. These
8
critical results were conveyed to Dr. Hauptman.
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5.22
A CT Angio head with contrast confirmed the aneurysm rupture and large
intracranial hemorrhage with mass effect. These critical results were conveyed to Dr. Hauptman.
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5.23
H.K. had suffered a distal (outer side of the brain) left Middle Cerebral Artery
(MCA) aneurysm rupture resulting in a large intracranial hemorrhage and intracranial COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 7 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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hypertension. H.K. was rushed to emergency lifesaving surgery performed by H.K.’s attending
2
neurosurgeon, Jason S. Hauptman, MD, PhD.
3
5.24
A left front temporoparietal hemicraniectomy was performed and about a third of
4
H.K.s skull was removed. The aneurysm was clipped, though complications occurred. A right
5
frontal external ventricular drain was placed.
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5.25
In rendering the history in his operating report, Dr. Hauptman recounted they “had
a high suspicion that the radiographic findings did not match the proposed mechanism.” Meaning that the level of bleeding in the brain and lack of other observed findings did not match up with the history of running into a wall. He noted there had been a plan to get an MRI sometime this second day of hospitalization. 5.26
On the seventh post-operative day, Defendant learned that wound cultures of the
outer and inner sides of the cranial bone flap collected on April 18, 2019 had tested positive for Aspergillus. COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 8 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1 2
5.27
Defendant withheld notice of the Aspergillus contamination of H.K.’s cranial bone
flap from H.K.’s parents.
3 4 5 6 7 8 9 10 11 12 13
5.28
H.K. was transferred from the PICU to the floor. Several days later, his external
14
ventricular drain was removed. He was given a helmet to protect the left side of his head until a
15
cranioplasty could be performed to replace the bone flap. He suffered the following medical
16
consequences as a result of the ruptured aneurysm resulting in a large intracranial hemorrhage,
17
intracranial hypertension and stroke:
18
(1)
Right hemiparesis (partial weakness)
19
(2)
Global aphasia (left side brain damage causing language and speech impediments)
20
(3)
Right ankle spasticity and clonus
21
(4)
Neuro-irritability
22
(5)
Left gaze preference/visual impairment
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(6)
Impaired mobility
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 9 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1
(7)
Cognitive deficits
2
(8)
Impaired swallowing
3
(9)
Impaired activities of daily living
4
5.29
On May 17, 2019, almost exactly one month to the day after the cultures were
5
collected, Dr. Benjamin Mason finally told the parents of the Aspergillus exposure and infestation.
6
He recommended weekly blood checks (serum galactomannan) and prophylactic drugs
7
(voriconazole). This regimen ensued.
8
5.30
On September 9, 2019, H.K. underwent a left side cranioplasty at Harborview
9
Medical Center because Defendant’s operating rooms had been closed due to its ongoing
10
Aspergillus infestation. With hospital privileges at Harborview, Dr. Hauptman performed the
11
cranioplasty electing to utilize a piece of synthetic material to cover H.K.’s exposed brain rather
12
than an autologous bone flap taken from the right side of H.K.’s skull.
13 14
5.31
By February 2020, the synthetic skull piece had broken. The clasp hardware had
broken in the front and back of H.K.’s head, causing the synthetic plates to loosen and shift.
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 10 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1 2 3
5.32
Another surgery on February 10, 2020, again at Harborview, was performed to
revise the cranioplasty. 5.33
H.K. currently has right sided disability and weakness. He cannot use his right
4
hand. He cannot walk without a brace. The right side of his mouth lacks sensation. He is unable
5
to control his saliva resulting in excessive drooling. He has suffered a profound permanent brain
6
injury, and the emotional consequences from ongoing trauma.
7
5.34
The parents suffer continued emotional distress not only because of their son’s
8
injuries; but because in order to treat his many serious conditions they have to return to SCH on
9
an ongoing basis. They remain hypervigilant and in constant fear that their son will be again
10 11 12
infected with aspergillus during his treatment at SCH. VI.
BACKGROUND OF ASPERGILLUS IN DEFENDANT’S PREMISES
6.1
Defendant has the duty to ensure that its operating rooms and body part
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refrigeration systems - remain sterile environments. This includes the duty to adequately maintain
21
its air-handling systems, and to test its premises and affiliated areas for the presence of Aspergillus
22
mold spores.
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 11 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1 2 3 4 5 6 7 Demonstrative Photo by: Center for Disease Control
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6.2
higher risk of developing Aspergillosis or other Aspergillus infection complications that may lead to serious injury or death. 6.3
16 17 18
If Aspergillus exposure occurs, the use of powerful antifungal drugs is required
which can further compromise the health of the patient. If Aspergillus exposure is suspected, prophylactic use of the powerful antifungal drugs is required.
14 15
Aspergillus is a common mold. People with weakened immune systems are at
Defendant’s Knowledge of Its Aspergillus Problem from the Patnode Case 6.4
In December 2002, 12-year-old Jane Doe Patnode had a brain tumor surgically
removed at Defendant’s hospital.
The child survived the tumor removal but developed
aspergillosis inside her brain and spine which rendered her permanently disabled. The family sued Defendant in 2005. Two declarations summarize the nature of Defendant’s failures regarding its air-handling systems:
19 20 21 22 23 24
a.
Margaret Brown had a master’s degree in civil engineering and construction management and had been a Navy civil engineer for 20 years. She had previously been a project manager at Fred Hutchison when they built the Seattle Cancer Care Alliance and was Director of Engineering at Harborview Medical Center. From
COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 12 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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October 2002 to March 2003, she was retained by Defendant as a consultant for the
2
Building & Engineering Department (B&E). Ms. Brown stated under oath on
3
August 31, 2007:
4
i.
5
She was advised by Defendant’s infection control staff that Aspergillus was a concern for the B&E Department.
6
ii.
7
The operating and maintenance manuals for the air-handling system had been missing for approximately one year.
8
iii.
The air-handling system was only repaired when it would breakdown.
9
iv.
Preventative maintenance of the air-handling system was not occurring.
10
v.
The air-intake systems were in poor condition and it appeared maintenance
11
had not been performed for many years. Dead birds along with copious
12
other debris were lodged in the screens. Air-handling unit water pans were
13
filled with slimy water.
14
vi.
B&E employees had no air-handling education.
15
vii.
Overall Defendant’s B&E Department did not have employees with the skill
16
and knowledge of other B&E staff she had worked with in the past.
17
viii.
18
impacted Defendant’s patient populations.
19
ix.
20 21
She had grave concerns about how the hospital’s critical care systems
When she brought and explained these concerns to Defendant, it abruptly terminated her services.
b.
Defendant hired Kenneth Johnson as an engineer in the B&E Department in April
22
1999. He received a promotion to Lead Engineer but left in September 2003. Mr.
23
Johnson stated under oath that during his time there:
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 13 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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i.
All of the air-handling units were in a filthy condition. Mold accumulated
2
around fan coils and drain pans. Air intake screens were plugged with
3
debris, including dead and live birds and bird droppings.
4
ii.
5
The only preventative maintenance performed was limited to changing filters on the air handling units.
6
iii.
7
It would have taken several years without maintenance for the system to deteriorate to this state.
8
iv.
9
Most of the time the air-handling units and fans had some form of water leak. This is because the system was “rotting out.”
10
v.
The B&E Department tried to put temporary patches on the problems.
11
vi.
The air-handling system was not tested.
12
vii.
The maintenance department was understaffed and needed additional
13
funding to complete maintenance, make repairs, and provide for a
14
computerized maintenance management system.
15
viii.
16 17
Defendant’s B&E Manager repeatedly expressed concerns in writing by email to Defendant.
6.5
After the Patnode case settled in 2008, Defendant failed to take adequate steps to
18
address the long-standing and known Aspergillus contamination spread through its air-handling
19
system. Washington State Department of Health
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6.6
In October 2017, State Department of Health inspectors cited Defendant for serious
violations involving its failure to “implement and monitor an effective infection prevention program.” COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 14 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
Centers for Disease Control and Prevention
1 2
6.7
In July 2019, the Centers for Disease Control and Prevention (CDC) reported that
3
its investigation into six cases of invasive Aspergillus infections occurring from May 2018 to May
4
2019 identified the HVAC system as a likely source of Aspergillus spores detected in the operating
5
rooms.
6 7
6.8
The CDC found that primary and secondary filter banks had gaps between filters
and housing, allowing outside air to bypass the filters and enter the system.
8
6.9
9
routinely checked.
10
6.10
The CDC found that HEPA filters were not installed at diffusers in the OR ceilings.
11
6.11
The CDC found that the last HVAC risk/vulnerability assessment was inadequately
12
The CDC found that air pressure monitoring was not manually validated or
performed in 2016 since it failed to review the AHUs.
13
6.12
The CDC found that within the Sterile Processing Department, doors between the
14
sterilizer equipment room, the clean work area, and the sterile storage area were maintained open
15
– which could disrupt intended air pressure differentials and promote the undesirable movement
16
of air from dirty to clean areas.
17 18
6.13
The CDC made several recommendations to SCH for immediate and ongoing
action to mitigate risk of further transmission.
19
6.14
The areas identified by the CDC as needing immediate attention include ensuring
20
appropriate pressure relationships and air flow among all areas providing direct and ancillary
21
services to the perioperative area.
22
///
23
///
24
COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 15 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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6.15
The CDC additionally recommended SCH pay attention to specific observations
2
and opportunities within HVAC, infection prevention, surveillance for mold infections, air
3
sampling and laboratory analyses.
4 5 6
6.16
In June 2018, Defendant closed two of its premises and an equipment storage room
for three days after detection of Aspergillus. 6.17
Following the contamination of H.K.’s skull piece as a result of Aspergillus
7
infestation in its air-handling unit, Defendant closed its operating rooms. State inspectors cited
8
Defendant for failing to adequately maintain its air-handling units and exhaust fans.
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VII. 7.1
CAUSE OF ACTION - MEDICAL NEGLIGENCE
As a health care provider, Defendant owed to Plaintiffs a duty to comply with the
standard of care of the profession to which it belongs. 7.2
Defendant owed a duty to Plaintiffs to exercise the degree of skill, care, and
learning expected of a reasonably prudent pediatrician, pediatric neurosurgeon, pediatric radiologist, pediatric nurse, and pediatric hospital in the State of Washington, acting in the same or similar circumstances at the time in question. 7.3
Defendant is negligent for failing to exercise that degree of skill, care and learning
expected of a reasonably prudent pediatrician, pediatric neurosurgeon, pediatric radiologist, pediatric nurse, and pediatric hospital. 7.4
Defendant’s treatment of care of H.K. fell below the standard of care for a
pediatrician, pediatric neurosurgeon, pediatric radiologist, pediatric nurse, and pediatric hospital. 7.5
Defendant owes an independent, non-delegable duty of care to its patients, as set
forth in Pedroza v. Bryant, 101 Wn.2d 226, 677 P.2d 166 (1984) and WPI 105.02.02. This includes the duty to exercise reasonable care to monitor and review the competency of all health care COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 16 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1
providers who practice medicine at Defendant’s hospital.
2
“Defendant held out to the public as being competent all physicians who practice in its hospital.
3
Defendant has a duty to monitor the competence of these physicians. Defendant failed to exercise
4
reasonable care in monitoring and reviewing the competency of health care providers who practice
5
medicine at Defendant’s hospital.
6
7.6
This includes non-employees.
As a direct and proximate result of Defendant’s tortious conduct, H.K.’s MCA
7
aneurysm was not diagnosed and treated in a timely manner. This resulted in a rupture of the
8
aneurysm and led to profound brain damage.
9
7.7
Defendant owed a duty to Plaintiffs keep its premises sterile, including its operating
10
rooms and all places involved in the transport and storage of body parts to be preserved for re-
11
insertion.
12 13 14 15
7.8
Defendant failed to maintain sterile premises and violated WAC 284-320, including
specifically 246-320-296. 7.9
Defendant failed to take reasonably prudent measures to prevent Aspergillus from
infecting H.K. and his body parts located within in its premises.
16
7.10
Defendant’s failures constitute a breach of the standard of care and negligence.
17
7.11
Defendant is independently liable under the doctrine of corporate negligence. VIII.
18 19
8.1
PREMISES LIABILITY
For over two decades, Defendant had actual and constructive notice that its
20
negligently maintained air-handling system could cause the transmission of Aspergillus mold into
21
its premises.
22 23 24
8.2
Defendant failed to properly maintain its air-handling system, resulting in the
dangerous contamination of its premises. COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 17 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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8. 3
Plaintiff H.K. was a child patient business invitee.
2
8. 4
Defendant failed to exercise reasonable care to protect its child patient business
3 4 5 6
invitee Plaintiff, from injury. 8. 5
Defendant failed to take reasonable precautions to eliminate the risk of Aspergillus
transmission from its air-handling system to its child patient business invitees, Plaintiff H.K. 8. 6
Defendant owed a duty of care to its child patient business invitee Plaintiff H.K.,
7
that required it to inspect for dangerous conditions, followed by such repair, safeguards, or
8
warnings as may be reasonably necessary for the Plaintiff’s protection under the circumstances. IX.
9 10
9.1
INFORMED CONSENT
Defendant failed to inform Plaintiff or his parents of material facts relating to
11
treatment, including but not limited to the substantially increased risk of Aspergillus infection at
12
Defendant’s Hospital due to its own negligence in failing to maintain safe premises as previously
13
described.
14
9.2
15 16
Plaintiffs consented to the treatment without being aware of or fully informed of
such material facts and risks. 9.3
A reasonably prudent patient under similar circumstances would not have
17
consented to the treatment if informed of such facts and risks, and instead would have sought
18
treatment at a facility without a substantially increased risk of Aspergillus infection.
19 20
9.4
informed consent caused injury to Plaintiffs. X.
21 22 23 24
The treatment obtained at Defendant’s facilities due to its failure to obtained
10.1
CONSUMER PROTECTION ACT – RCW 19.86 et seq.
Defendant has engaged in unfair or deceptive acts or practices by engaging in the
following courses of conduct: COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 18 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
1
a. Making material misrepresentations and omissions about the safety of its
2
premises (in particular that it conforms to the standards required of a hospital
3
facility) to the public, including its business invitee.
4
b. Collecting substantial compensation from its business invitees.
5
c. Injuring its child patient business invitee, but then not notifying the parents that
6
the transmission of Aspergillus occurred due its unsafe premises.
7
d. Covering up the nature and extent of the deficiencies related to maintenance of
8
its air-handling system in order to avoid exposure to litigation, bad publicity,
9
and damage to its otherwise stellar reputation.
10
10.2
Defendant’s unfair and deceptive acts and practices repeatedly occurred in
11
Defendant’s trade or business and were capable of deceiving a substantial portion of the public,
12
particularly since Defendant advertised itself as the pre-eminent pediatric hospital in the region.
13
10.3
Defendant’s unfair and deceptive acts and practices affect the public interest.
14
10.4
The unfair and deceptive acts and practices were committed in the general course
15 16
of Defendant’s business in Washington. 10.5
As a direct and proximate cause of Defendant’s unfair and deceptive acts and
17
practices, Plaintiffs have been injured in their business and/or property and are entitled to recover
18
compensatory damages as described below.
19
10.6
20
to RCW 19.86.090. XI.
21 22 23 24
Plaintiffs are entitled to recover treble damages, attorneys’ fees, and costs pursuant
11.1
DAMAGES
If Defendant had properly diagnosed and treated H.K., in a timely manner the MCA
aneurysm would have been surgically removed prior to its catastrophic rupture. COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 19 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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11.2
If Defendant had properly diagnosed and treated H.K. in a timely manner and
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removed the MCA aneurysm before it ruptured, because of the distal location of the aneurysm,
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H.K. would probably not have suffered any brain injury.
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11.3
Defendant’s failure to exercise the requisite skill, care and learning of its health
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care providers, and its failure to exercise reasonable prudence, was a direct and proximate cause
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of injuries and damages to Plaintiffs.
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11.4
sustained permanent, chronic and debilitating physical and cognitive injuries.
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11.5
13
As a direct and proximate result of Defendant’s tortious conduct as described,
Kathryn Lee Kim and Mark Kim, suffered the negligent infliction of emotional distress.
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As a direct and proximate result of Defendant’s tortious conduct as described, H.K.
11.6
Defendant’s negligence caused H.K.’s infection by Aspergillus and all related
11.7
As a direct and proximate result of Defendant’s negligence, Plaintiff H.K. has
harms.
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suffered past and future physical and emotional harm, pain and suffering, loss of enjoyment of life,
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lost earning potential, disability both physical and cognitive, disfigurement, and related past and
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future health care expenses, including but not limited to future surgeries and treatment, vocational
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expenses, caregiver, adaptive technology, future household services, home modifications, assistive
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devices, rehabilitation etc.
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11.8
As a direct and proximate result of Defendant’s negligence, Plaintiff parents
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suffered loss of consortium, damages for emotional harm caused by NIED, and special damages
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including but not limited to lost income, loss of earnings potential, etc.
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11.9
All damages allowed under RCW 4.24.010, not otherwise delineated.
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 20 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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XII. 12.1
INJUNCTIVE RELIEF
Plaintiff Henri Kim requires ongoing care for injuries sustained as a result of
Defendant’s negligence. He has the right to safe and appropriate care. 12.2
Plaintiffs have a well-grounded fear of immediate invasion of that right by
Defendant due to its almost two decades of negligence that has resulted in Aspergillus infestation of the hospital. This infestation has been admitted by its CEO and was confirmed by the Department of Health in 2019. 12.3
Defendant’s conduct with respect to its negligently maintained air handling system
and Aspergillus infestation has resulted and will result in actual and substantial injury to Plaintiffs and the public needing pediatric care. 12.4
Defendant should be enjoined from operating as a pediatric hospital in whole or in
part until a transparent, objective, and complete environmental assessment has taken place and been released to the public, and all recommended corrective action has been taken to remediate the related dangerous conditions. XIII. WAIVER OF PRIVILEGE Waiver of the physician-patient privilege under RCW 5.60.060(4)(b) does not waive or release any other rights or privileges, including those related to the physician-patient relationship, other than the privilege set out in the above-cited statute. XIV. PRAYER FOR RELIEF WHEREFORE, Plaintiffs pray for judgment against Defendant in their favor as follows: 14.1
Declaring and decreeing that Defendant committed medical negligence.
14.2
Declaring and decreeing that Defendant violated WAC 246-320.
COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 21 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
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14.3
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into sterile premises.
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14.4
Declaring and decreeing that Defendant’s negligence resulted in injury to Plaintiffs.
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14.5
For special and general damages to Plaintiffs in amounts to be proven at trial.
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14.6
For costs and disbursements.
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14.7
For statutory attorney fees.
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14.8
If Defendant brings any frivolous or unfounded defenses, for attorneys’ fees and
8
costs pursuant to RCW 4.84.185 and/or Rule 11 of the Superior Court Civil Rules.
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Declaring and decreeing that Defendant was negligent for introducing Aspergillus
14.9
For statutory interest on the judgment from the date judgment is entered until paid
in full.
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14.10 For prejudgment interest on the special damages.
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14.11 For prejudgment interest on liquidated damages.
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14.12 For treble damages, attorneys’ fees and costs under the CPA.
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14.13 For injunctive relief.
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14.14 For such other and further relief as the Court may deem just and equitable.
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DATED this 4th day of March, 2021. STRITMATTER KESSLER KOEHLER MOORE
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/s/ Karen K. Koehler Karen K. Koehler, WSBA#15325 Co-Counsel for Plaintiffs
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LAYMAN LAW FIRM
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/s/ John R. Layman John R. Layman, WSBA#13823 Co-counsel for Plaintiffs
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COMPLAINT FOR MEDICAL NEGLIGENCE, PREMISES LIABILITY AND DAMAGES - 22 STRITMATTER KESSLER KOEHLER MOORE 3600 15th Ave W, #300 | Seattle, WA 98119 Tel: 206-448-1777
DECLARATION OF CLIENT REGARDING VOLUNTARY ARBITRATION
We hereby declare subject to perjury under the laws of the State of Washington the following: 1. The undersigned are the Plaintiffs in the lawsuit of Kim, et al. v. Seattle Children's
Hospital. 2. We have read the provisions of the Voluntary Arbitration Act. https:/ /app.leg.w a.gov/rcw/default .aspx?cite==7.70A
3. Our attorneys have answered our questions about the Act. We hereby elect to:
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Opt out of the Voluntary Arbitration Act and try our case to a jury. Opt into the Voluntary Arbitration Act recognizing there is a $1 million limit on
[ ]
any recovery.
Dated,
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EXHIBIT A
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