Some of you don’t like trial lawyers. It’s trial lobbyists who irk me.
Already we make our state business law on the basis of relationships between legislators and hired guns who get paid by corporations and professional associations to pat legislators’ backs. Now we do the same with our adjudication of the tragic death of an infant in the custody of the state.
In February 2000, officials in the Chicot County office of the state Human Services Department responded to a report of neglectful care of a sick baby in Lake Village. They took the 2-month-old boy from his mother and father, finding that he suffered from extreme diarrhea and severe diaper rash that extended around his body and all the way to his stomach.
A circuit judge approved the state’s action. Over the ensuing 45 days the state transported the baby to the Arkansas Children’s Hospital and the baby stayed in four foster homes. He was moved in part because he needed a stay-at-home foster parent since he was vulnerable to viruses while in day care.
At the fourth home, that of a woman who hadn’t wanted to take him, he died in his crib.
The mother and father and grandparents filed a wrongful death claim against the state. It alleged that the final foster parent caused the child’s suffocation by placing him on his side on a hot blanket and with a hot quilt over him.
A sharply divided Claims Commission voted 2-to-1 in June to award $225,000.
That was despite the fact that Dr. Frank Peretti, a state medical examiner, said that if allowing a child to sleep on its side or stomach caused death, thousands of babies would die daily.
Peretti found the cause of death to be "undetermined and undeterminable," in keeping with what is commonly called Sudden Infant Death Syndrome. He also found that the baby had suffered from colitis, previously undiagnosed.
The Human Services Department, convinced none of its actions contributed to the baby’s death and that its innocent employees needed support, appealed the Claims Commission award to the only place such awards can be appealed. That’s the claims review committee of the legislature, which actually appropriates the money.
That’s when Robin Carroll of El Dorado, attorney for the baby’s estate, hired two lobbyists, former state Rep. Courtney Sheppard of El Dorado and Randy Thurman. He said it was to protect his clients’ interest in this new political arena that the state agency had chosen, especially since he resides two hours away and has a law practice that takes his time.
In other words, the cause of a baby’s death and the responsibility for it were no longer medical and legal issues, but political ones hinging on the wiles of lobbyists in their button-holing of legislators in the Capitol corridors.
The legislative committee met Friday, engaged in private confabs with the lobbyists, heard disorganized public testimony worthy of a kangaroo court and made a political decision. It affirmed the $225,000 award.
Sen. David Bisbee of Rogers, one of the committee’s leaders, said he favored the award even though he was convinced the state Human Services Department had done nothing wrong. But he said the state took custody and the baby died, and, well, that was that.
He contradicted himself. If the state did nothing wrong, then there could be no wrongful death.
The Human Services Department rescued the child with a court’s permission and got the baby needed medical attention. It was no more responsible for this tragedy than any parent permanently haunted by a baby’s unexplained sudden death.
In this case there ought to have been a simple death benefit, not a finding of wrongful death. In fact, a neutral death benefit in such cases probably ought to be in the statutes.
The problem is appraising a child’s life. Any amount seems crass. Any amount seems low.
But maybe you could keep lobbyists from getting part of it.