Negligence Suit Ends In Mistrial

Judge Says One Juror Wouldn't Be Swayed To Find Doctor At Fault

November 01, 1991|By Peter Hermann | Peter Hermann,Staff writer

A Davidsonville doctor accused of negligence in the death of a 9-year-old girl faces a new trial because the jury could not reach a unanimous decision yesterday.

After nearly 14 hours of what was described as intense deliberations over three days, the seven women and fivemen told a Circuit Court judge there was no way they could agree.

"We can compromise with the exception of one or two of the jurors," announced Lola M. Patillo, the jury forewoman.

Judge Warren B. Duckett Jr. then declared a mistrial. "This has been a stressful weekand a day," he said. "Sometimes, the court has to come to a conclusion that a verdict cannot be reached. My position is that we are at that point right now."

Jurors were trying to decide if Dr. Robert G.Graw Jr. was negligent in his care of Catherine "Katie" Gillespie, who died eight hours after arriving at Johns Hopkins Hospital on Nov. 2, 1987.

The girl, who lived in Severn, was diagnosed with a blooddisorder called idiopathic thrombocytopenic purpura. The malady is characterized by an abnormally small number of platelets, the part of the blood responsible for clotting.

Katie's parents said Graw, a specialist in pediatric hematology, failed to hospitalize the girl or take other reasonable steps that could have prevented her death.

The parents, who are divorced, also accused Graw of failing to advise them to watch for signs of a headache, which suggests the onset of a hemorrhage. The girl died of a brain hemorrhage the day after complaining of a headache.

But Graw's attorneys argued the girl's bleeding wasn't severe enough on the two days that he saw her to warrant hospitalization.

And since a hospital wasn't necessary, Graw took appropriate action in sending the girl home and prescribing steroids, his attorneys said.

Graw said yesterday that the four years of waiting for the case to come to trial have been difficult, but he is readyfor the retrial whenever it happens. He said he already felt vindicated because an arbitration panel of a doctor, a lawyer and a lay person had already cleared him of any wrongdoing.

"The people who are learned and know the facts involved have already found for us," Graw said. "Our job now is to present the facts so anyone can understand. Nobody won here today. What we have done is have a warm up."

Katie's mother, Cynthia Gillespie Kirby, said she will not rest until she wins in front of a jury. "For four years I have grieved," she said. "I will continue to grieve until 12 people stand up and tell me what this doctor did was wrong."

The mother came close yesterday. Duckett said the final tally was 11 jurors for the girl's family, with one juror holding out for the doctor.

Duckett said that after the first deadlock, seven jurors were for the family, three were for the doctor and two were undecided. The judge sent the jurors back and the tally changed to 10 jurors for the family and two for the doctor.

ZevT. Gershan, one of the family's attorneys, said the one juror sidingwith the doctor had made up his mind "before deliberations started. He wouldn't give any reason." Attorneys did not know who the juror was and attempts by a reporter to contact him were unsuccessful.

Juror Jane Harrell agreed with that.

"I am mortified at the outcome,"she said, after calling The Anne Arundel County Sun. "One young man even walked into the jury room this morning and said he had absolutely nothing to say.

"He didn't want anyone to talk to him. He was completely unreasonable. There was no doubt Dr. Graw did not give the standard method of treatment."

Harrell said she was surprised the family's lawyer only asked for $500,000 for each of Katie's parents. She said she would not have been surprised if they asked for up to $15million. "I have never been through such a gut-wrenching situation in my entire life."

One of Graw's attorneys, Kurt Karsten, disputedthe jury tallys and said the actual numbers were closer to eight jurors for the family and four for the doctor. He said two of jurors thought the doctor was negligent, but didn't want to award damages because they didn't like putting a price tag on a human being.

Jurors brushed past reporters after the mistrial was declared, refusing to stop to answer questions. One juror said the discussions were "very heated" and that the jurors were "pretty angry" with each other.

A new trial date has not been set.

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