Unbridged interview with Ethen Shapiro

True Story Media.

Hello, it's Andrea.

Today we are bringing you a bonus episode.

This is our unabridged interview with Ethan Shapiro, who was one of the lead attorneys for Johns Hopkins All Children's in the Kowalski v.

Johns Hopkins All Children's lawsuit that is still playing out.

So we spoke to ethan when we traveled to florida to interview both him and dr sally smith this was shortly after thanksgiving so just a couple of weeks after the verdict and a lot has happened since then so we are going to be bringing him back on the show to give us a bit of an update about what's happened since and what to expect as this whole thing continues to play out in the meantime enjoy this interview with ethan shapiro

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Okay.

Yep.

Whenever you're ready, I'm good.

Okay.

Hi, Ethan.

Hi, how are you, Andrea?

I'm good.

Thank you so much for being here with us.

So I just wanted to start off by asking, how did you get involved in this case?

So I've had the privilege of representing local and national hospitals for the last 20 years or so of my work.

And I count Johns Hopkins All Children's Hospital as one of our most prestigious clients.

So they were a client of ours.

This case came in.

They asked us to help them with the defense and certainly a privilege to do so.

And so you've been involved from the very beginning, which was 2017.

Is that right?

We've been involved in the defense of this case since it was filed.

I believe it was 2018 was the filing date.

Okay.

But we were aware of the Kwalski case before then.

Okay.

And how did you get into healthcare law?

Why was that an area of interest for you?

So the firm I work for has a very broad range of practices of law.

And when I started the firm, they had an opening in the area of healthcare defense.

It was intellectually challenging.

And I just love the idea of being able to represent healthcare providers, especially in this day and age, where I feel like they're under more scrutiny and attack than they have been in the past.

Yeah, that's really interesting.

And that's something we've been thinking a lot about, sort of the effects of COVID and its politicization and a whole kind of myriad of things that are going on, especially here in Florida.

How have you seen that work evolve and change, especially maybe over the past five years?

Yeah, so the old phrase that one is anecdote and two is data.

So I'm a microcosm of one based on what I've seen, but I'm certainly part of groups that are are talking about national trends.

And the national trends in terms of verdicts and outcomes of trials for healthcare providers is certainly tracking in the wrong direction from our perspective.

From my perspective, the days of people banging pots and pans for health care providers as they leave the hospital seem to have been fleeting.

And there's a lot more skepticism of the healthcare profession that we're seeing from jurors.

Not to make this a partisan discussion, but whether that's part of the so-called Fauci effect or something larger going on, if it's a larger distrust of authority in society, is certainly something that's above my pay grade.

But we have to factor it in as trial lawyers trying cases for healthcare providers.

Yeah, I mean, I think the politics of this are really interesting to me because

there have been some really surprising political lenses that have been attached to this case in particular.

And I think that are sort of representative maybe of an overall shift in the way people see the medical system.

And I think on the sort of right side of the political spectrum, the Fauci effect, what you were talking about, the sort of vaccine hesitancy or questions about that, ideas about government overreach, et cetera.

And then on the left side of the spectrum, I think you have people that have concerns about

disparity in the healthcare system, about misogyny in the healthcare system.

And I think like these

that I've seen this case resonate strongly with people on these really opposite sides of the political spectrum.

Like the plaintiff's case resonates, the plaintiff's story resonates strongly with people on both sides of the political spectrum, which is just not something that you usually see these days.

You usually see, I feel like, kind of people just picking according to their side.

So that to me has been again like as a microcosm has been really fascinating about this case in particular.

So

the Netflix documentary is

the thing I think there was some pretty high-profile media coverage already, or at least there was local media coverage, but the Netflix documentary, Take Care of Maya, is really what launched this case into the, you know, public attention on a national scale.

Millions of people have watched that movie.

I'm wondering, have you watched it?

And what are your thoughts on the film?

I watched it.

I watched it twice.

I watched it when it first came out, and then I watched it again before trial to try to get a refresher of the perspective.

My ultimate perspective was that I was disappointed with it.

And this is why.

My disappointment with the Netflix movie was that the producer had the same information that I had.

They obviously don't have

legal, internal legal memoranda, but it was clear that they were able to excerpt deposition clips.

So, for example, they paid very short attention to the idea of Maya's recovery post-all children's hospitalization.

You know, specifically,

they excerpted deposition clips from Maya's March 2022 deposition, where I asked Maya, you would agree with me that you're doing better now from a pain perspective

than you were prior to going to all children's.

And she, to her credit, answered very honestly, yes, that she's doing better today than she was in 2015 or 2016.

That would have been a very easy excerpt to put into the movie that would have given a completely different narrative and would have left the question with their audience,

why has Maya made

a very good recovery if the standard of care, according to their experts, was ketamine upon ketamine.

And so that was one of the many things that I thought that Netflix intentionally overlooked in order to pursue a narrative that would have been better for their ratings.

Yeah, I mean, I too have been curious about the origins of the film.

And I was listening actually to an interview with Kaitlyn Keating, who is the producer who brought this project to Story Syndicate, who then sold it to Netflix.

And

she

said, she was describing how she found this story.

And she she said, she found it while she was working for People Magazine.

She was really intrigued just in some of the research.

She was really intrigued.

And then she popped in a conference room and called Gregory Anderson and talked to him for two hours and then was down meeting the family in a week from there.

And I

can understand that sort of series of events in terms of approaching a story, but I thought that was pretty telling.

And I just, I wonder, like, how,

I mean, how unusual is it?

There's so much true crime content.

And there's so many true crime documentaries that are put out pretty fast nowadays on places like Netflix and Hulu.

I mean, is this something that you're seeing more where there's sort of these big,

for lack of a better term, kind of PR pushes by a plaintiff or a defendant?

in the media in advance of a case?

So

I would have to be guessing, but to your question about whether we're seeing more of this, I think a case like this can set a precedent and, in fact, a very dangerous precedent, specifically in cases involving health care providers, because when you look at the asymmetrical warfare that can be waged by somebody

like Mr.

Anderson on behalf of his client, putting this case in the media beforehand, but refusing to sign a HIPAA waiver, so that when news outlets reach out to my law firm and are asking for comment on behalf of my health care provider whether it's johns hopkins all children's hospital or any of the number of clients that i represent or that anybody representing health care providers would have to respond to we're handcuffed about being able to tell our story to the media without a hipa waiver so for example in a case like this if the kowalskis want to say x y and z happened to them at the hospital i could have irrefutable proof that that's false but unless they're going to to sign a waiver for me to be able to put that in the media, we have to wait till trial to tell our story.

Right, right.

And so in this case, before the trial happened, there was already this really, you know, emotionally driven, emotionally affecting narrative.

How do you think

that public perception affected, well, I guess in two parts, like, how do you think it affected the fact that this went to trial to begin with, if it did?

And how do you think that affected how the trial played out?

So to your question about how this affected the decision to go to trial, a lot of those decisions would be internal, but there was definitely a sense that after the very one-sided Netflix movie came out, that it was important that since we couldn't tell the story in the media, because the Kowalskis wouldn't sign a HIPAA waiver, that we'd be able to tell our story with evidence in the courtroom.

But what was concerning about that process was the fact that we had to wait until the courtroom to be able to tell the story and to be able to tell it with evidence.

Yeah.

I think I know that a lot of people, because I've heard from a lot of people that are really surprised that a case like this, like a civil case like this, went to a jury trial and became sort of this big of a trial.

Do you think that was because of the publicity or was it sort of actually maybe on the defense's side, the need to have kind of a public airing?

Because in fact, you're right, this is a trial is one of the only ways that you ever know anything about these cases.

And I'm just looking at that through the broader lens of like medical child abuse cases is that the problem with the media is exactly as you said.

If the parents don't sign a HIPAA waiver, they can say whatever to the media and all the hospital or the doctor involved can say is no comment.

And that is not a fair fight.

And so the only way that it becomes public is if there is hopefully a trial, or if there is even, you know, in some cases, like if there's a police investigation, there's stuff you can get.

But certainly the best way then to air sort of all the facts is a trial.

So do you think it actually was to the defense's benefit that there was a trial?

Yeah.

So to your question about whether the pretrial publicity influenced whether there was a trial or not,

for the defense team, this definitely was an important case for us to stand up for mandatory reporters, especially in the face of the Netflix movie.

I understand why Netflix would want to make a movie with a one-sided narrative because it drives ratings and clicks.

Mother allegedly medically abusing her daughter is page five of the local paper, fortunately or unfortunately.

Hospitals in states kidnapping children is front page news that's going to scare a lot of people, whether the evidence supports that or not.

So the fact that that narrative was irresponsibly put out by Netflix prior to the trial and their decision to ignore what they had in terms of transcripts that would have refuted their narrative was something that was important for the defense to be able to refute and to be able to put forth evidence that not only was the medical decision making based on evidence-based medicine, but the physical outcome for Maya had improved substantially, which is something that Netflix had ignored and apparently intentionally ignored throughout their coverage.

Yeah, I mean, I really, I think you're right on with that in terms of what's in it for Netflix.

I mean, I think this whole story to me is sort of, it was capitalism all along, because I think outrage does sell.

And if you are looking at this case with the appropriate nuance, then you can't get as outraged, right?

It doesn't have sort of a hero and a villain the way that the Netflix.

movie sets it up, where, you know, you have the hospital and in particular, Sally Smith and Kathy Beatty being the villains.

And then you have,

you're painting Beata as someone who martyred herself, which is this, that was the sort of narrative established then.

And the plaintiff stuck to that narrative pretty hard throughout the trial.

So, like, how did you prepare for the trial?

What was your approach going in?

So, this was a very complex medical case in terms of the amount of medical care sought by the Kwalskis on behalf of their daughter coming in.

And so our focus on preparation, among other things, was to make sure that we could tell a very coherent timeline.

That's not easy to do when you're on the defense side, especially in a long case like this where you have to wait weeks to get your story out in order.

But our focus was to make sure that we had a very good timeline for the jury to understand that by the time the Kwalskis had presented to all children's hospital in October of 2017, for example, Maya hadn't walked, according to their testimony, in over a year, that other providers had raised red flags.

And as you saw, as you followed the trial, some of that evidence came in and some of that evidence was restricted from coming in.

Right.

And we will definitely talk about that.

And then, in terms of like what you saw with the plaintiff's approach, I mean, what was their approach as you saw it?

You know, it's, and

you asked me about the plaintiff's approach, and I don't mean this as a compliment or to disparage them.

They're very good trial lawyers, and they tried a very good case on their behalf, and thus far have gotten a verdict in their favor.

But it appeared clear to me that they had a strategy that was to blur the lines between the hospital's obligation as mandatory reporters and the actions of the state.

As those who have watched the trial heard over and over again, the judge had to instruct the jury and warn the plaintiff to stop using the word they, to stop alleging that the hospital was responsible for separating Maya from their family.

But that appeared clear to the defense that that was part of the plaintiff's theme in order to blur those lines.

So you were talking about your preparations going into the trial.

And of course, during the trial, the judge makes directed verdicts and the plaintiffs and the defense can make make motions.

So like a lot, the rules change basically as the trial is evolving.

And there was a huge one that happened, I believe, right in the middle between the plaintiff's presentation and the defense presentation

about

what evidence could be allowed in with regards to medical child abuse.

So what happened?

with that part of the trial?

The part of the trial where the court made a decision about what evidence could come in regarding medical child abuse was obviously very monumental.

The court ultimately ruled that evidence of medical child abuse was largely irrelevant to the proceedings in this case.

The court laid out its reasons why.

The defense disagreed with those reasons in real time.

And to the extent that influenced the jury, we'll never know for sure because we didn't have an opportunity to talk with the jurors individually, at least at this point.

What were the reasons that the judge gave?

The judge ultimately decided that this case was more about medical malpractice and how Maya was treated at the hospital and believed that the allegations of medical child abuse had been disposed of by a grant of statutory immunity, which from the mind of the defense was partial at best.

What does that mean?

So the court tried to respect

the

statutory immunity that mandatory reporters are afforded in Florida by saying

in general that we're not liable for the phone call and therefore the phone call to the DCF hotline.

Correct.

And so if all children's providers cannot be sued for the phone call, then in the court's mind, whether

there was a good faith basis for it, meaning whether there was evidence of medical child abuse was no longer relevant for the jury's consideration.

And while I understand where the court was coming from,

the problem from the defense perspective, and again, I'm only speaking for the defense, I'm not speaking for the court or my client, but the problem from the defense perspective was that for the first four and a half weeks of trial, and including through opening statement, the plaintiff repeatedly told the jury, we're going to show you that these false allegations of medical child abuse caused Biata Kowalski to go into this tailspin, caused the unnecessary separation of Maya from her family.

So the jury had heard from the plaintiff that these were unsupported allegations, but when it came time for the defense to put on evidence that would support

the medical provider's decision making, the court found that that was no longer relevant to the case.

Yeah, and it was shocking to watch that moment in trial.

I didn't even absorb it while I was watching it because I think I was saying, surely he can't mean, and indeed he did.

And it was interesting about, yeah, which this being made at sort of during halftime, you know, when the defense is already presented, is that they presented and questioned witnesses.

And now, I don't know if they ever used the words medical child abuse.

I believe that they mostly stuck to using Munchausen by proxy.

And my belief is that was to deliberately confuse the act of medical child abuse with the psychiatric condition of factitious disorder imposed on another, because they kept making arguments about, you know, for instance, Deshauna Duncan's evaluation of Biata Kowalski, where she said Munchhausen by proxy can, quote, safely be ruled out.

That is a total misunderstanding of what.

you know, medical child abuse is.

We've talked about that at Nauseem on the show.

And then Anderson was asking people questions about their knowledge of the DSM-5.

And, you know, I thought Dr.

Sally Smith did a great job of like delineating, listen, there's a psychiatric disorder.

What we're looking for, what my job is to look for in the medical records is medical child abuse.

And it is a medical issue.

And, you know, that

suspicion of medical child abuse affected every single action that happened after.

And so, without that, it's like the narrative doesn't make any sense if you don't have that piece.

I really watching the court's decision in there, I just thought, I don't think this judge understands what medical child abuse is.

And the fact that he said at one point, I think we can all agree that Beada wanted the best for her daughter.

And I just sort of felt like, I don't think that we all agree on that based on the evidence in front of us.

So yeah, I mean, that decision was so baffling.

I mean, how

did that ruling, I mean, what was that like trying to

like sort of reformulate your strategy with that sort of like cannonball in the, you know?

So without commenting specifically on

the rationale of the court and why the court decided what the court decided, of course, the court is trying to decide issues in good faith and we have an appellate court that will decide whether those issues were decided correctly or not.

We had a great quote from a trial lawyer who we and trial consultant that we interviewed this season.

And he told us that, you know, what you see in trial is one thing.

And then that's like when trial ends for the day, that's when the workday begins.

And so I wondered just from your perspective, like how,

how was that?

I mean, this must have been a grueling nine weeks because there was just so much happening every day.

I mean, what was, what was that?

What was that like to sort of, I mean, maybe especially on that day, right, when you have that ruling and now you're going back and trying to like sort of re-strategize without a pretty, what I imagine was a pretty key piece of the puzzle because I saw in the pretrial hearings, you know, you were going to have like Mike Kelly testify, who would have been testifying, presumably, I mean, I know him and his speciality, like presumably testifying specifically about medical child abuse.

So, I mean, what was that re-stratitization period like?

So

defense always remained focused on the care that was provided to Maya at All Children's Hospital, which we believed was and still believe was based on evidence-based practices.

We remain very proud of the fact that within a week or so, we were able to wean Maya off of some of what we thought were dangerous and unnecessary medications.

In terms of your question about reconfiguring trial strategy, the

trick of being a trial lawyer is that you have to adapt to rulings, some that go in your favor and some that don't go in your favor.

But all that being said, there definitely was a defense strategy that was muted to some point by rulings that we'll have to find out if they were made properly or not based on appellate decisions.

And just to expand on that a little,

you know, we were able to proffer the testimony of Sally Smith to some degree in front of the jury.

A proffer is

what the attorneys put on the record outside the presence of the jury.

So to give you a real simple example of what a proffer means, let's say you have a situation where two cars collide at an intersection.

And three witnesses say that the light was red and that driver Shapiro was responsible.

And one witness says that

the light was green and driver Smith was responsible.

And the court ultimately decides that the person saying driver Smith was responsible is an unreliable drunk and

has prior convictions for perjury.

And therefore, where that person was standing is unreliable and is not going to come into evidence.

And so the plaintiff stands up in closing argument and says, Driver Shapiro is clearly liable for this.

All three witnesses said that the light was red and he ran it.

Well, what I can do is put on the testimony of the person who said the light was green outside the presence of the jury so that that way I can have that testimony on the record.

Were you at the intersection?

Was the light green?

Were you standing?

Was it lit where you were standing?

Were you sober at the time?

So that way I have a record I can then bring to the appellate court and tell the appellate court that I was prejudiced at my trial because I had competent testimony from an eyewitness that said the light was green when I approached the intersection.

And if I don't proffer that testimony, if I don't put that on in the record, then I don't have a record to go to to the appellate court and say there was competing evidence that the judge excluded.

Ah, okay.

That's really interesting.

And just as a point of clarification for me, how is that different than a previous deposition?

Because you

on both sides were taking depositions for years in the lead up to this trial.

So is a proffer is different in that it happens during the trial, even if it's not in front of the jury.

So Crash Course 101 on depositions were a lawyer now.

Yeah, no, it's this is these are great questions.

So, um,

Florida is probably very similar to most states, but

testimony at depositions is very liberal, meaning what you can ask somebody at a deposition goes far beyond what is admissible testimony.

Okay,

so uh, you can ask somebody a lot of questions at a deposition that may not be admissible at trial,

and the test for admissibility at trial is much more narrow.

So,

you would have to ask an excellent appellate lawyer this question but in general just because it's in a deposition doesn't necessarily mean it would be admissible testimony at trial so uh typically lawyers to have a safe practice if they want to have something in front of an appellate court you would want to proffer it at trial but certainly there could be deposition testimony that may fit that definition as well that makes a lot of sense because i had read many many previous depositions.

And even, you know, Sally Smith's deposition, for example, was very different than what she was able to say during the trial.

And while we're on the subject of Dr.

Sally Smith,

one of the, I think, key pieces of the narrative of

the plaintiff and also the way that this played out in the media in terms of in the Netflix film and in the New York magazine piece and in the local coverage here is that Sally Smith was this overzealous lone ranger that came in on her horse and split up this family because she didn't like Beata and because

she just had it out for her, essentially.

And

that is not what we saw play out with the defense witnesses.

So can you tell us, in fact, was Sally Smith a lone actor?

Your question regarding Sally Smith is an excellent one.

My firm did not represent Dr.

Sally Smith in this trial.

We have not represented her in the past.

So her attorneys would be able to answer specific questions,

or perhaps she could answer some of those questions.

But she's in a very unique situation as not just being

prohibited by HIPAA from sharing some of her findings, but there's an extra layer of protections under Florida statutory immunity for DCF and Department of Health workers.

So her ability to tell her entire story is also shielded at the mercy of the Kowalskis in releasing the findings of her report.

To your question about whether Sally Smith is a Lone Ranger or whether her findings were corroborated by multiple other providers, you would find that answer in her very detailed report, which

really was the essence of the dependency action.

And what you do know, in terms of your investigative reporting, was that a judge in Sarasota County did find Maya in imminent danger of

necessary shelter at All Children's Hospital based

in totality on Dr.

Smith's report.

You know,

this series of events, as the Kowalskis presented them in the film and in the media, was that both Dr.

Smith and the hospitals at Johns Hopkins really were just put off by Beata,

that they didn't like her, they found her demanding, they don't like Polish people, et cetera, and that that was why this report was submitted.

And then there was sort of a piece about they submitted an initial report that wasn't detailed enough, that got rejected, and then they resubmitted one that was detailed enough.

And

sort of playing it as though, oh, it was just this brief interaction with Beata

that raised the flag.

And in fact, while that might have been the thing that raised the concern,

we heard from so many different providers, from so many different institutions.

I mean, specifically, we heard from a lot of people from Johns Hopkins.

We also heard from people from Lurie Children's in Chicago.

We heard from a bunch of people from Tampa General.

and a few other places as well.

And you just hear so many different providers on the stand telling a very similar story.

You know, you have these details of the suspected conversion disorder, which is never mentioned in the film, never mentioned in the media reports, and interestingly, it was never mentioned, at least from the parts that I read in Beata's blog as a possible diagnosis.

And you have all of these different providers saying it.

They're all saying the same things about the inconsistent nature of her symptoms, just painting a really remarkably similar picture.

To me watching this, it was such a clear picture.

I mean, what is the argument to that really?

Like,

how do you justify that many people having concerns and it being nothing?

So your question about how do so many health care providers across multiple states, across multiple times, arrive at the same conclusion, specifically their diagnoses.

And I think that's one of the things that the defense was trying to focus on was that this is not a multi-state conspiracy against the Kowalskis.

That this was

very clearly a number of physicians at world-class institutions, whether it's Liverie Children's Hospital, Tampa General Hospital, Lee Memorial Health System, and Dr.

Mendez,

including the providers at Nomorras Children's Hospital, that were also talking about evidence-based approaches to medicine.

This is what we mean about standard of care.

What do

similarly reasonable, prudent physicians believe is a diagnosis?

And

the fact that a number of physicians came to the same conclusion was something that the defense felt was very compelling in our argument to the jury that this was proper medical care given to Mayaquals.

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So to your question about Dr.

Sally Smith being the head of the child protection team and her role versus that of the medical medical providers, both at All Children's Hospital and at Lurie Children's Hospital or Tampa General Hospital or anywhere.

This is a very important distinction because what a mandatory reporter does is

report what they believe is a reasonable suspicion of medical child abuse or neglect.

It's then up to the child protective team to decide whether to investigate it, how far to investigate it, to compile the evidence that they have either in support or not in support of a potential allegation of medical child abuse, and whether that should be put together in a petition to petition a judge of local competency to intervene on behalf of the child.

And so, this case was a very important case for mandatory reporters.

And

not to be dire, the verdict is a devastating blow to mandatory reporters locally and nationally.

And I know that you represent some other hospitals.

When the verdict came down, what were you hearing from other clients that day?

It's a devastating verdict for mandatory reporters, and here's why.

The part that shocked me diving deep into a case like this was how many children across the country are abused for neglected, wittingly or unwittingly,

whether they're born to drug-addicted mothers in the neonatal intensive care unit, whether they are brought in

and one spouse is intentionally, you know, physically abusing a child, or whether it's a case where parents believe they're pursuing the right course of therapy, but it turns out to be one that's dangerous and unnecessary.

Hospitals are often the place where this is picked up.

And hospitals are often seen by the courts, not just in the Tampa Bay area, but across the country as a place of safe refuge.

What do hospitals do now?

If a hospital can be sued by an aggrieved parent who has their rights abridged or taken away by a court and then can turn around and sue a hospital for making the call or can turn around and sue the hospital for receiving medical care that the hospital believes is unnecessary and dangerous and says, no, we're not going to put in a pump that we only put in terminal children.

We're not going to give ketamine at levels that are 200 times evidence-based medicine.

If a hospital can be held liable for an aggrieved parent, then the grand bargain that the government has made with mandatory reporters has been shattered.

If you're going to tell a mandatory reporter, and Andrew, to be clear, we're not just talking about healthcare workers.

These are police officers, firefighters, Cub Scout leaders, journalists, teachers, crossing guards.

If you're going to tell them that we're going to prosecute you for a felony, for failing to report a reasonable suspicion, but if you report it, that we promise you you can never be prosecuted, you can never be held liable in a civil court for the phone call.

Well, what happens when a verdict comes down where

a trial court allowed a hospital to be prosecuted for the suicide of a parent who was upset that a trial judge acting on the report of child protective services, not the hospital, but child protective services, and the mother in response ends up harming herself as a result of being separated from her child.

What happened to that bargain to mandatory reporters?

Your question to me about what's the reaction from the healthcare field,

it's trepidation.

It's fear.

Can mandatory reporters still carry out their function, knowing that an aggrieved family can seek a verdict that could financially paralyze that hospital health care provider from carrying out their local mission in the community?

Without a legislative fix to this,

the 40, 50 years that have been built on mandatory reporting are going to be destroyed by this verdict.

And I don't mean to be that dire, but it's true.

Yeah, I mean, I think, you know, it's been very interesting.

I really really came out pretty strongly that that was my feeling about this verdict, that it was going to inhibit reporting and endanger children.

And I

got some responses from that.

And people said, oh, you're fear-mongering and et cetera.

And I,

you know, I think there's some.

places where people see this as

a win for parents who have legitimately medically fragile children, which I can be very clear at this point, having seen what I have seen, I do not believe that includes this family.

I think this was, in my opinion, this was

very clearly a case of medical child abuse.

So I think this idea that it's going to be a win for people with CRPS or people with children who have CRPS or people with children with medical complexities.

I think that's completely wrong because I think what is going to happen in my view, and I wonder how you feel about this what I fear will happen is that if you walk into a doctor's office and you say my child has CRPS

that doctor is going to want to get you out of that office so fast I worry that There are situations that we've looked on on the show, you know,

that's what we cover as medical child abuse cases.

And we recognize that there are situations where there are red flags and it doesn't turn out to be abuse.

I worry now that a red flag is going to get you shuffled out of that office so fast because nobody wants to end up as the next villain of a Netflix film and be sued and have that liability.

So I actually fear that this could create additional barriers for people who do need care because it's created such a like

fear within a legitimate fear, not fear-mongering, a legitimate fear within providers about what could happen to them if they end up with an abuse case on their hands.

So your question about whether this verdict could have a chilling effect effect across the country on mandatory reporters, my fear is it's not just a chilling effect, it's going to potentially freeze it.

Because if you're a healthcare provider looking at a questionable situation and wondering, if I make the call, what's going to happen, especially children's hospitals, Andrew, because you have to remember that, you know, as opposed to police officers and firefighters that can make a call, they're not going to be responsible for the child if the court orders them sheltered.

So you have a situation where a hospital has to make a decision, or a healthcare provider has to make a decision.

Do I call this?

I am reasonably suspicious, but do I call this in?

If they call it and Child Protective Services decides to investigate it and decides that there's reasonable grounds to pursue a shelter order, and the judge agrees with them that the child's in imminent risk and danger, you're creating a situation now where the hospital or healthcare provider is going to be the custodian of the child with parents who already disagree with the decision.

And now what?

What if you end up in a situation like with the Kowalski family, where, you know, after All Children's Hospitals successfully weaned Maya off what they thought were unnecessary and dangerous medications, we're in a position where they say to the court, we're ready to transfer the child, but

the state and the dependency court and the family can't agree.

And it goes on and on and on.

And when you look at what can happen in a situation where the parties can't agree on where a child can be discharged to, the hospital can face tremendous exposure, even though they do not have control over the decision for discharge.

Yeah.

And I think that speaks to the

false imprisonment claim.

I mean, to me, that was,

I think the minute I heard the first reading, I sort of had this sinking feeling of, oh my God, they're going to award massive damages for every single one of these counts, which is in fact what happened.

And one of the counts was false imprisonment.

And I think this was one of the more

confusing counts to absorb as it was playing out in trial, because it got shortened to a certain time period.

And there was sort of these questions about what happened, but you laid out

in your closing

a really, and I, because I've spent so much time with this documentation, I appreciate the effort that went into your slides and the way that you organized the story, because that's just no small feat with so many different doctors, so much different medical testimony.

But you laid out what happened during that period of time.

Can you walk us through those several days that had to do with the false imprisonment charge and

what

the evidence shows us, what the documentation shows us about what happened during that period.

So, the evidence regarding the first few days of the hospital, I thought, were very compelling for the defense.

The hospital recommended a weaning schedule for Maya, and we have ample evidence that the family agreed to that schedule.

And it wasn't just one doctor or one health care provider that documented the family's agreement with the weaning schedule.

It was several across several different specialties and across several different units from the emergency department to the ICU and so forth.

Again, you know, we feel confident that when the evidence is weighed and re-weighed by the trial court and eventually the appellate courts, that they'll come to the same agreement that there was nothing approaching a false imprisonment and that the family agreed to a very evidence-based approach to a plan of care.

Okay.

And then Jackowski claimed on the stand that they had tried to leave the hospital and that he he was told that the hospital would call the police if they did that.

Is there any corroboration for that?

We heard Mr.

Kowalski testify that he was told he was threatened by an armed security guard with arrest.

All Children's Hospital does not have armed security guards at care planning meetings.

That was a piece of evidence that we felt that we could adequately refute, did adequately refute, and we're confident in our appellate rights on that point.

And in fact, there was also an email from Beada Kowalski that she sent to Jack saying that someone, I believe that, I mean, I can look it up, but I believe she said they accused us of trying to leave against medical advice, and that's a lie.

So even she is saying we did not attempt to leave.

We had

documented evidence from Beata Kowalski as late as October 11th that they had agreed to stay, that they had agreed with the plan of care.

We also have additional evidence that didn't come in about Mr.

Kowalski praising Dr.

Elliott, who was was one of the pain management specialists and his role in the case.

So, again, in real time, we have very good evidence that the Kowalskis agreed to the plan of care at All Children's Hospital up and through when the court sheltered Maya Kowalski on October 13th, finding that her release back to the family presented an imminent danger to Maya.

Well, and I thought one of the most compelling pieces of testimony was from Nurse Thatcher.

So, Nurse Thatcher

had had a conversation with Beata

and they were talking about, as you said, this weaning process and obviously, you know, this sort of back and forth had begun with Beada requesting an extremely high dose of ketamine.

And Beada

made a statement to Nurse Thatcher that if

they weren't able to get that medication there, then she might as well just consult hospice so that Maya could finally die because she didn't deserve to live like that anymore.

And hearing Nurse Thatcher talk about that and her reaction to it in the context of having dealt with families who had to put their children in hospice.

I mean, to me,

that is just a very chilling piece, especially in light of what came out throughout the course of the trial about previous conversations about hospice, about previous conversations about Maya being terminal.

And

I always think, you know,

I'm not sure that a lot of people appreciate

what could have happened if they'd allowed them to leave.

Because to me, Beata was saying, This is what I'm going to do.

Why wouldn't they take her seriously?

I can't, I don't know.

There are several things that happened in this trial that I cannot

imagine how people brushed off.

That's one of them.

The other one, and I think this is sort of maybe this didn't click into peace because the defense was barred from putting it in the context of medical child abuse.

But, you know, one of the things I went into

the trial, trying to keep an open mind about it, I'm very aware of all my preconceived notions with this subject matter.

And so I thought, you know,

it isn't if Maya truly

has this diagnosis of complex rational pain syndrome, that does not negate the possibility of medical child abuse.

That's a really common misconception.

Like, oh, if you find a real diagnosis, that means there's not medical child abuse.

No, it can be exaggeration, it can be improper treatment, it can be all kinds of other things.

But I was trying to keep an open mind about maybe she really does have this.

Now, we saw many doctors, including Dr.

Elliot Crane from Stanford, give what I felt was very compelling testimony about how this is not, like, her symptoms do not match up with CRPS.

But what really

nailed it for me was the revelation that one week before Dr.

Kirkpatrick gave Maya the diagnosis of CRPS, which is the first alleged time that someone gave her this diagnosis, a week before that, Beata had reported to Dr.

Chrisman, the pulmonologist, that one of her diagnoses was RSD, which is the other name for CRPS.

And to me, I mean, that...

That to me felt like a smoking gun in terms of

dishonest reporting to providers.

And I feel like that

I don't know that that landed with the jury.

I mean,

what was your impression with that?

I know you can't really say to how it landed on the jury, but I mean,

that to me seemed like such a huge piece.

But then I wonder, like, if they don't have the context of medical child abuse, what it is, what you're looking for when you're trying to look for medical child abuse, that it is sort of that intentional deception piece.

I mean, do you think without like some of these like really shocking facts, do you think they just were sort of lost in a sea of other medical details?

So your question in terms of what factors did the jury discount versus what factors did the jury latch onto are tough to say without me being able to have a full interview with the jury.

I certainly think it affected the jury that they were told from opening argument all the way through the plaintiff's case.

that, quote, they, unquote, separated Maya from her family, conflating the actions of a mandatory reporter reporter who makes a phone call with those of the state, with those of the child protective team, with those of

a judge sitting in competent jurisdiction in the state of Florida, finding that Maya was at imminent risk of harm.

I think that the ability of the plaintiff to throw all of that together and blame the hospital for the separation of Maya is the best explanation I can give you, Andrea, as to why the verdict came.

Regarding your question of

the diagnosis of CRPS first coming from Beata Kowalski through

a friend of hers who had a daughter of CRPS and not through a medical doctor at the front end is sort of the question that you had asked earlier, you know, does Maya have CRPS or not?

I'm not a doctor.

I'm not here to answer that question for you.

But what the defense was focusing on was the fact that, you know, as recently as Tampa General, and you heard from a lot of their providers, their belief that if whether Maya had CRPS, whether Maya had conversion disorder, or whether Maya had some other type of amplified pain disorder, the cure for this,

if you will, was perseverance, physical therapy, occupational therapy, pain medicine when needed to get through the therapies, and that if that course of evidence-based medicine was followed, that Maya would recover.

And what you saw after Maya left All Children's Hospital, really throughout her All Children's Hospital hospitalization, was that once she got off of the unnecessary and dangerous medications and focused on her therapies, she recovered.

She recovered to the point where she was back in school within a year.

You heard her exercise regimen.

It was a testament to her perseverance, but it was a testament to what evidence-based medicine could do for her.

And the fact that

when you follow a reasonable evidence-based medicine approach and not one that involves, you know,

incredibly large amounts of ketamine.

Given under pretty improper circumstances.

I mean, I think that was one of the things that really struck me when they sort of talked about, when the various witnesses testified about Dr.

Kirkpatrick and Dr.

Hannah, is that they were giving this in a non-hospital setting, that their monitoring was below the standard of care, as Dr.

Crane said, and that this was just not like both it was unsafe in the levels, but also in the way it was being administered.

And I think that, yeah,

that struck me too, listening to them talk about that.

So, one of the benefits for everybody in looking at this case was, to her credit, Biata Kowalski was a very detailed historian.

And so, despite the fact of a Dr.

Kirkpatrick trying to downplay the dangers of giving ketamine at those doses in the office, Biata Kowalski had simultaneous notes where she documented the hallucinations, where she documented the saturations, the ability of the body to take oxygen falling rapidly

in really dangerous vital signs in real time, which is part of the fear of medical providers hearing of these doses and wondering: is the next dose going to be the one that's fatal?

Yeah, absolutely.

And I think, in talking about, you know, Dr.

Kintu also testified, and who was the provider in Monterey who administered the ketamine coma treatment.

And I thought it was

a bit mind-shattering to hear them sort of try try and, what I felt, downplay the risks of that procedure.

And there was this question of the like 50% chance of death, which is what Dr.

Cantu testified he told them.

That's recorded in Beada's recollections of it via the blog that she kept on behalf of Maya.

And,

you know,

they sort of tried to downplay all the risks and it's not that serious.

And then you read, you know, which this was introduced, some drafts of Beata's blog post from during that time.

And they're very specific.

They're very medical.

They talk about dosages.

They talk about specific reactions and symptoms.

And

it sounds so harrowing.

I mean, it sounds harrowing and terrifying.

And even I will say, you know, listening to some of the audio Beata recorded of Maya right before that procedure that was included in the Netflix film, she sounds terrified.

And

yeah, it just really,

it's hard to square.

It's hard to sort of, and I think you do.

I mean, without Beada here, it's hard, but then also she did leave quite a record.

I have the sense that part of the reason people are able to sort of villainize hospitals,

different ideas on different sides, but I think many people have had bad experiences with the healthcare system, as it were, from insurance or specific doctors or what have you.

And I really like that your colleague, Mr.

Hunter, when he presented in his opening, you know, made this analogy of like a hospital is not just a pile of bricks after all.

And hospitals are, especially children's hospitals, are so

integral to our communities.

And they have a duty to their patients and a duty to the parents of those patients, but they also have a duty.

to the community to protect kids.

I mean, that is part of sort of what is baked into the job of a children's hospital.

And

I think, and again, you know, sometimes I think people think this is fear-mongering.

I don't think it is.

I mean, do you think that people have a sense of how catastrophic the ramifications of this verdict on that role as children's hospitals being a place where children can be kept safe really is?

People really don't understand the fallout from this verdict.

You have to remember that, you know, everyone goes to medical school, but it takes a certain type of soul to then dedicate themselves through residency and fellowship training to caring for those who can't talk, those who sometimes can't even tell you their own symptoms, and in a very heart-wrenching area of medicine, caring for the sickest and most vulnerable.

And now we're going to potentially muzzle those people and tell them that the bargain that we made for them, that if you have a reasonable suspicion of medical abuse or neglect, witting or unwitting, again, it doesn't have to be a situation where a parent is intentionally hitting or beating a child.

It could be where a parent is misguided and not taking immediate medical advice.

And now you're going to muzzle those providers from doing what they need to do ethically and needing to do what they do legally.

I don't think people really understand.

the shock value that a verdict like this can have.

Children's hospitals are thought of by the courts as the last area of safe refuge, right?

They are not only safe there because there's a bed for them, there's food for them, there's people who care about them, but they're also safe because we don't have enough medical foster people or foster parents to begin with.

We

could send medically fragile children out into a community where they don't have access.

to medical care.

And that's potentially an indictment on people outside the hospital system about why medically fragile children don't always have access to medical care.

So the courts have always looked historically to hospitals in general and children's hospitals specifically as a place of safe refuge and safe medical care.

And that's been shattered because hospitals can no longer rely on the courts to keep them immune from potentially catastrophic verdicts.

What happens next?

Well, that's going to depend on the trial court.

It'll depend on the appellate courts, but there's going to be a lot of hard work that's going to have to be done by the legislatures to reinforce the immunity because without it,

we're going to be back in the situation where we were in the 50s and 60s, where medically abused children, again, wittingly or unwittingly, will have no voice.

And I mean, I think,

especially because of, you know, the way that the media narrative about it is expanding into these other areas having to do with non-accidental injuries and abusive head trauma.

I mean, I think it's not just medically abused children, right?

I think this potentially could affect hospitals' ability to protect abused children, period, end of sentence.

Right.

The hospital's ability to report reasonable suspicions of abuse is certainly not limited to medical child abuse.

The far more common scenarios would be those of accidental or intentional trauma.

And in the back of every provider's mind now, in the face of this, is not just

can I be held liable for a verdict that can hamper or destroy our ability to provide care in the community, but can I be dragged through a public trial?

Can I have a documentary made about me,

you know, both by a huge filmmaker or even in the local paper that could destroy my reputation?

Can I have a social media mob enraged against me?

And it's very human to think twice before you pick up the phone and make that call.

And so again,

what's been left of the bargain that the state and the government has made with mandatory reporters, their promise of immunity, when that can be shattered?

I would leave you with this question,

especially healthcare providers who can't tell their story.

Especially healthcare providers that are limited from saying, here's what I know and here's what I documented in my medical record that required me to make that phone call.

I can't release that that without violating a HIPAA law.

So, healthcare providers are uniquely penalized for being told you must make that call, but if you do, you have no way to defend yourself in the court of public opinion until trial.

And you may be left with a weakened defense if you're forced to go to trial.

So,

right at the end of the trial, the defense put forth a motion to remove

juror number one.

Why

was that motion filed?

The basis for our motion to remove juror number one is laid out at more length in the motion than I can possibly describe in your podcast.

But an essential tenet of our jury system is to have jurors that come in fair and impartial and to keep their impartiality until the defense case is put on.

And we had a concern based on some of the questions that had been laid forth whether this particular juror had been able to satisfy that obligation.

And then there was a motion filed last Wednesday requesting a new trial because of the conduct of this juror

that was discovered sort of during the trial and after the trial and also involved his wife's social media activity.

Can you just kind of give us briefly what that motion was about?

Andrew, it's a lengthy motion that is fairly detailed in terms of the basis for it.

But again, it emphasizes the importance of jurors, especially in cases of high profile, cases where there's a lot of media activity, to ensure that the universe of their information is only that which is coming through the trial court.

And as we laid out in the motion, we had concerns whether that was being followed.

And just for you, is this the first trial that you've done that's been on quite this big of a public stage?

Yes, this is definitely, from a personal perspective,

one that I've been involved in that had this much pretrial publicity and publicity during the trial.

What's that been like for you?

So personally, I'm able to compartmentalize a lot of this and really try to focus on the importance of this case.

And again, the importance of standing up for mandatory reporters and their ability to report child abuse, suspected, real, witting, or unwitting.

And that fight hasn't stopped.

As you'll see coming up, we have a number of post-trial motions that have been filed and appellate rights that we fully intend to exercise to make sure that mandatory reporters can have their voice heard and children who are abused and neglected will have their voices heard.

We thank you for your time and we thank you for your work.

Thank you.

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