When I wrote about a recent worker’s compensation lawsuit and posted it, I received a lot of encouraging responses. Yes, I’ll share the story again. I am writing this with the permission of the client’s family.
At the end of 2017, I was contacted by the father of a 2-and-a-half-year-old girl who was in the hospital at Duke. He was from Arkansas. His wife had run off with another man while he was in prison. The mother and her new boyfriend were both methamphetamine addicts, and they subjected four children to a terribly unstable environment. One day, when the mother returned from shopping and changed her daughter’s diaper, she noticed bruises all over her child’s backside. The boyfriend explained that he ‘didn’t mean to hit her that hard.’
Eventually, they gave their two older children to the mother’s side of the family, the infant to the mother’s brother and his wife to adopt, and took my two-year-old client to North Carolina to live with the boyfriend’s mother and the boyfriend’s mother’s boyfriend (confusing, right?). Shortly after arriving in North Carolina, my client’s mother sent her sister pictures of the bruises, which resembled belt marks on her child’s back and face. This happened after the boyfriend had been babysitting the little girl while her mother worked. The sister urgently messaged her back, demanding an explanation from the boyfriend and/or for the child to be removed from the house. The mother confronted the boyfriend, but backed down when he denied harming the child. My client’s mother and the boyfriend’s mother agreed that, due to his bad temper, they would never leave the child alone with him again. However, just weeks later, the little girl was left alone with him once more. The boyfriend’s mother offered to pay for the child to see a doctor, but the mother refused, as both she and her boyfriend had warrants for arrest in Arkansas and feared the police would get involved.
Other events occurred that I won’t spend time recounting here, but suffice it to say that the boyfriend had a violent temperament toward women and children (anyone weaker than him). A few months later, the boyfriend’s mother bought them a small house to live in, free of rent. She also bought them both cars, even though they had no driver’s licenses. By that time, despite both having full-time jobs, they had spent so much money on their drug habits that, even without rent, they barely had food in the house. A few months later, the boyfriend brought my client’s mother to the emergency room after a beating (five stitches in her head), and afterward, the mother returned home to find more bruises on her little daughter.
The boyfriend’s mother and her boyfriend cared for the child most weekends because my client’s mother and her boyfriend couldn’t care for her during the weekends due to their drug use.
On the fateful day when my client’s mother went to work, she left the little girl with the boyfriend again. When she returned home, she found her 2-and-a-half-year-old daughter unconscious in bed, wearing only a diaper. The boyfriend claimed he was playing with the girl, chasing her around the bedroom when she ran into the closet, was hit unconscious, and had a seizure. He stated that the girl had been unconscious for one or two hours! He didn’t call EMS because he still had outstanding warrants.
The mother picked up the girl, and the boyfriend drove them to the hospital. On the way, they fabricated fake names and a story about how the child was injured. The boyfriend drove home to clean up the evidence.
By the time they reached the hospital, the child was nearly dead.
Here’s a partial list of what WakeMed found:
- Large hematoma on the top of her head
- Large hematoma above and behind her head
- Slow pupil response with an upward gaze that isn’t continuous
- Bruising on the front chest wall
- Bruising on the back chest wall around the middle of the chest
- Distended abdomen
- Bruising on the left forearm
- Inconsistent grasp reflex
- Glasgow Coma Scale score of 3, the worst possible score
- CT scan of the head showing brain swelling with non-displaced skull fractures
- Gallbladder fluid potentially secondary to liver laceration
- Subacute rib fractures on the 9th and 10th ribs on the left side
- Dilated intestines with no evidence of intestinal injury
- Elevated liver function with high lipase levels consistent with blunt abdominal trauma
- Closed skull fracture
- Liver laceration
- Elevated pancreatic enzymes
- Bilateral retinal hemorrhage
- Swelling of the optic nerve
- Bradycardia (slow heart rate)
- Severe hypoxic ischemic encephalopathy, the most critical medical issue, meaning her brain was deprived of blood and oxygen for an extended period, causing severe brain damage.
The doctors immediately recognized that the little girl had been the victim of severe physical abuse. It was also clear that this wasn’t an isolated incident. The rib fractures showed significant healing, a clear sign of prior trauma, indicating that these injuries had occurred at least 14 to 21 days prior, or possibly longer. This suggests that her caregivers – the mother’s boyfriend and the mother’s boyfriend’s mother – were likely aware of the abuse. It’s impossible to care for a 2-year-old without knowing that she had fractured ribs.
Even more tragic than the brutal beating were the brain injuries that would not have been so severe had he called emergency services right away to prevent the prolonged lack of blood and oxygen to her brain.
When the boyfriend eventually arrived at the hospital hours later, he claimed the bruising on her back was due to him attempting CPR. The doctors disagreed, saying that the abdominal and brain injuries were far more severe than what could have been caused in that manner. She had been brutally beaten.
The police quickly discovered that they had been using fake names, and the mother of the boyfriend was involved in the scheme. In addition to the usual interviews with all involved, neighbors, and a crime scene review, the investigation included hundreds of text messages between the mother and the boyfriend.
I never understood why law enforcement makes it so difficult for private attorneys like me to obtain their investigation reports, but they did. When the girl’s father first contacted me, the only information I had was what the police and doctors had shared with him and a few short news articles. Searching the property provided me with a bit more information. I would never have been able to get the police records without filing a lawsuit first, and that raises an ethical question. Lawyers are always expected to conduct a thorough investigation before filing a lawsuit, but the only way to truly conduct a thorough investigation is to file the lawsuit to obtain the right to subpoena. A subpoena for police records is the only way to get it. Even then, I had to take an additional step to request a protective order. The entire process took months.
There were also financial challenges. Private attorneys like me have to pay salaries, rent, taxes, and other obligations, and we can only take profitable cases if we want to keep the business running and support our families. Those who assault others typically don’t have the ability to pay judgments, meaning even if we received a $100 million verdict, we’d likely never collect a penny because perpetrators rarely have enough assets to pay even a small judgment. I explained to my client this way – bank presidents usually don’t go around assaulting people. For example, the boyfriend’s mother in this case filed for bankruptcy in the middle of the case, so we would never be able to access her assets. That’s why private lawyers rarely take on assault cases. After discussing with my partners, I justified the thousands of dollars we would spend on litigation costs and hundreds of hours of my and my legal assistant’s time with the potential publicity the case could bring us. Honestly, that little bit of publicity would never compensate for what we had to put into the case, but I couldn’t ignore it. That little girl will never speak again or be able to care for herself. She will never marry or have a family. Her father and later her siblings will always have to care for her (if she’s lucky and doesn’t end up in a facility). Someone had to speak up for her, even if that effort was mainly symbolic.
Fortunately, after months of investigation, I discovered that the boyfriend’s mother had homeowners insurance for the house they were living in, with $300,000 in liability coverage. The bad news was that the liability coverage policy was written in such a way that claims based on assault would be excluded from the policy. I read the policy over and over again. I read every case ever published by the North Carolina courts regarding homeowner liability policies in child abuse contexts. I couldn’t find a case that fully matched our situation on every relevant point, but I felt I had a reasonable argument. In other words, I thought I had a shot at fighting for coverage.
When I finally received the police investigation, I was both happy and sad to see it was over a foot thick. Happy because it likely meant a thorough investigation. Not happy because I spent 50 to 60 hours reading and outlining it. I still had other cases to handle, so this process took weeks. The hardest part was the hundreds of pages of messages between two shallow, selfish people. I had to read dozens of pages of nauseating texts between these contemptible individuals to occasionally find relevant information that I could actually use. For anyone who thinks law school is a ticket to a glamorous and wealthy life, think again. Unless you truly, truly want to help people, it’s not worth it.
Two years after I initially agreed to take the case, we began taking depositions. In a deposition, attorneys ask witnesses questions under oath (under penalty of perjury) in the presence of a court reporter who records everything and creates a verbatim transcript to be used later in the litigation process. Depositions are central to what lawyers do. We took depositions from the mother and boyfriend from their jail cells. The boyfriend pled guilty to felony child abuse and obstruction of justice under common law. The mother pled guilty to felony child abuse by negligence causing serious injury. The boyfriend’s mother pled guilty to a lesser charge of obstruction of justice but did not serve jail time. Unsurprisingly, all four denied knowing anything about the child’s rib fractures.
The case against the boyfriend was clear, but he was the least likely to have liability coverage. Liability coverage rarely includes intentional acts. I knew from the start that it would be easy to prove he was responsible, but it was unlikely I’d collect any money from him for that poor little girl.
My efforts were to navigate the legal tightrope to show that the other three were liable for failing to protect the child in a way that would trigger the scope of liability coverage. The insurance company’s attorney filed a motion for summary judgment to determine that they did not have coverage for the mother or her boyfriend. We lost. The judge ruled that there was no coverage for either of them. I didn’t appeal because I had been convinced throughout the process that they were right on that.
The case continued against the boyfriend’s mother and her boyfriend. Why? North Carolina law states that “(a) Any person who has cause to suspect that any child is being abused or neglected shall report the case of the child to the director of the department of social services in the county where the child resides or is found. The report may be made orally, by telephone, or in writing.” I’ve underlined that part. By law, adults are required to report to the authorities (Child Protective Services) if they suspect abuse or neglect.
I felt that we had proven that both of them had plenty of reasons to suspect that the child was being abused and was in danger of further harm. Although there were many doubts about whether I would win the liability insurance issue for them, I managed to make the insurance company scared enough to offer over half of their policy limit to settle before trial. My client’s father, who made the decision, chose to play it safe and settle. Part of me still wishes he had let me take the case to trial, but deep down, I think he did the right thing.
After all of that, the case still wasn’t over. Medicaid had spent hundreds of thousands of dollars in three different states to care for the child. The law in each state varies on how much we have to pay them from a settlement or judgment. I reached settlements with North Carolina and one other state within a few weeks, but it took almost an entire year for us to finally settle with the third state. They took much more than the other two states because their state law allowed them to do so. This left my client with even less of the settlement money than I had expected, which was disappointing.
The good news is that the father stepped up and is responsibly taking care of his four children. I’ve spoken to them by phone and had video calls with them several times since they moved to Arkansas. My client seems happy and well cared for. The father has stayed sober and out of legal trouble since the injury. For the rest of her life, she will likely never be able to speak, feed herself, go to the bathroom, or do many other daily activities. Her medical bills totaled hundreds of thousands of dollars. She will continue to incur other bills for the rest of her life.
What does this long story mean? Yes, it’s tragic. Yes, people can be terrible. But it didn’t have to happen. If the adults that God entrusted the child to had acted with a little courage and responsibility and called Child Protective Services, the little girl might now be a healthy, normal seven-year-old. We’ve all heard stories about people who were referred to CPS that shouldn’t have been, and their lives were ruined. I don’t know how many of those stories are true. However, this taught me that it’s better to err on the side of protecting the child and trust that CPS will use some common sense.
