Kowalski v Johns Hopkins overturned with Ethen Shapiro

Speaker 1 True Story Media.

Speaker 1 Hello, it's Andrea, and today we are interrupting our special coverage of The Preventionist to bring you some highly relevant and related content.

Speaker 1 And that is our conversation with Ethan Shapiro, the lead attorney for Johns Hopkins All Children's Hospital.

Speaker 1 We are discussing the appellate opinion that was rendered last week overturning the $211 million verdict that was awarded in the civil trial two years ago. Kowalski v.

Speaker 1 Johns Hopkins All-Children's was, of course, the subject of the movie Take Care of Maya and a tidal wave of media coverage, including a New York magazine piece written by Diane Neary that almost entirely obscured the extensive evidence of the abuse that Maya Kowalski had endured up until the moment of her removal from her parents' custody.

Speaker 1 Neary's piece instead painted a picture of a rogue and overzealous child abuse pediatrician, in this case, Dr. Sally Smith.
Sound familiar?

Speaker 1 The fact that the Cappellate decision dropped on the day before the preventionist went wide is poetic and, I'll admit, at least a little cathartic for me.

Speaker 1 During the Kowalski trial, I was, at least to my knowledge, the only person in the media who is in support of the hospital's actions, which after years of researching and studying this case, I believe almost certainly saved Maya Kowalski's life.

Speaker 1 I covered this case extensively in the third season of my show, and I'm going to be revisiting that coverage in more detail soon.

Speaker 1 But as we unpack this court ruling, I want to highlight what Gregory Anderson, the lead trial attorney who has since been fired by the Kowalskis, more on that later, said that this case was about in an interview he gave during the trial.

Speaker 1 Quote, this case is about individual freedom, the freedom of parents to be able to make their own decision to what is in the best interest of their child based on their own gathering of knowledge and their own request of information.

Speaker 1 In an interview this past week following the appellate reversal, Anderson mentioned that Chapter 39, which provides immunity to mandatory reporters in the state of Florida, was a, quote, difficult statute and that he quote hopes the legislature does something about that.

Speaker 1 However, I feel about Gregory Anderson, I appreciate his willingness to be direct about what this trial and the entire medical kidnapping narrative and attack on child abuse pediatricians is actually about.

Speaker 1 It's not about bad doctors or making a more equitable and less harmful child welfare system. It's about parents' rights.
I believe that children should have human rights independent of their parents.

Speaker 1 I believe parents should not have the right to abuse their children.

Speaker 1 I believe that children have an inalienable right to be safe in their homes and that members of the community should step up to protect them when their parents can't provide that.

Speaker 1 Now, since the 1970s, when CAPTA passed, this has been the law. But there are people who disagree with this.

Speaker 1 At the core of this conversation is a deeply regressive movement that wants to undo mandatory reporting laws and the protections that we currently extend to mandated reporters.

Speaker 1 Much like so many things that people my age have taken for granted, mandatory reporting laws are under threat. And if this verdict had stood, I believe we would have lost them.

Speaker 1 There can be plenty of reasonable discussion and disagreement about how to handle the question of how to protect children.

Speaker 1 But that's not what Take Care of Maya or Diane Neary's reporting on the Kowalski case or on Dr. Jensen for the preventionist is.
Don't let them pretend otherwise.

Speaker 1 I've been encouraging you, as knowledgeable listeners of this show, to get in touch with Serial if you share my concerns, and I appreciate those of you who've done so, so I'm going to keep encouraging that.

Speaker 1 If you have something to say about their coverage, let them know at serialshows at nytimes.com or by leaving them a review on Apple Podcasts.

Speaker 1 We need to start asking the hard questions about whose voices are being heard right now and whose are being silenced and forgotten.

Speaker 1 It's time to make the people pushing this agenda say the quiet part out loud.

Speaker 1 Hi, I'm here to pick up my son Milo. There's no Milo here.
Who picked up my son from school?

Speaker 2 Streaming only on Peacock.

Speaker 1 You don't understand. It was just the five of us.
So this was all planned.

Speaker 2 What are you gonna do?

Speaker 1 I will do whatever it takes to get my son back. I honestly didn't see this coming.
These nice people

Speaker 2 killing each other. All their fault.
A new series streaming now, only on Peacock.

Speaker 1 Hey, it's Andrea. It's come to my attention that some of you have been served programmatic ads for ICE on my show.

Speaker 1 Now, podcasters don't get a lot of control over which individual ads play and for whom on our shows, but please know that we are trying everything we can to get rid of these by tightening our filters.

Speaker 1 And if you do continue to hear them, please do let us know. In the meantime, I want it to be known that I do not support ICE.
I am the daughter of an immigrant. I stand with immigrants.

Speaker 1 Immigrants make this country great.

Speaker 1 Well, hello, Ethan. Thank you so much for joining us.

Speaker 1 If you could start by just introducing yourself and who you are in the context of what we're talking about.

Speaker 2 Hi, Andrea. Good afternoon.
I'm Ethan Shapiro. I'm trial counsel for Johns Hopkins All Children's Hospital in the case that we defended against Maya Kowalski.

Speaker 1 So just this week, as we're recording this, a huge decision has come down from the appellate court that was reviewing the verdict that was entered almost two years ago now.

Speaker 1 I believe it was November 9th, 2023,

Speaker 1 for over $200 million in favor of the Kowalskis.

Speaker 1 Can you talk us through this appellate decision, the opinion the judges wrote, and kind of just explain what's been overturned and what their reasoning is for overturning those pieces?

Speaker 2 Great question.

Speaker 2 So big picture, the Second District Court of Appeals, which is the appellate court that oversits the trial court, issued a very lengthy opinion that vindicated Johns Hopkins All Children's Hospital's opinion from the start of this case, which is essentially that the activities that were alleged in this case to have been negligent are all covered under Chapter 39 protection, statutory immunity.

Speaker 2 And the decision is obviously very important for my client in the short term with regard to this case, but this is what I would call a landmark decision supporting mandatory reporters across the country.

Speaker 2 It not just finds that my client participated in in good faith in the reporting of the concerns of abuse of Maya Kowalski, but that virtually all of the activities complained about by the Kowalskis were also covered under the good faith mandatory reporting.

Speaker 2 So we look at this case as one that vindicates my client's position.

Speaker 1 Yeah.

Speaker 1 And I wanted to dig into this question about Chapter 39 immunity. And of course, that's the Florida statute, but every state in the country has some version of, you know, mandated reporting.

Speaker 1 Different people and professions are subject to that in different states. Florida is everyone, I believe.

Speaker 1 But in terms of how the immunity for the hospital,

Speaker 1 how that applies here, can you talk us through what immunity means in this context and why it's important?

Speaker 2 So Andrea, let's take a step back so your listeners can understand what immunity is.

Speaker 2 Most people are familiar with the different standards people have to show in our court system to establish liability or criminal conduct.

Speaker 2 As we say in the civil justice system, cases are decided by a preponderance of evidence.

Speaker 2 And if you wanted to visualize that, if you're the plaintiff, you have to move the ball across the 50-yard line to win. You have to tip the scales just slightly in your favor.

Speaker 2 In the criminal context, we describe that as being beyond a reasonable doubt.

Speaker 2 People quantify that as saying at least 95% sure because the American criminal justice system would rather see 19 guilty men go free than one innocent man go to prison.

Speaker 2 We're talking about an entirely different subset of liability and protections when we talk about immunity.

Speaker 2 The word immunity, as we've always argued it, and as the Second District Court of Appeals has now affirmed, means you cannot be liable, period, whatsoever.

Speaker 2 You can't be sued, and the cause of action cannot go forward against mandatory reporters as long as they're operating in good faith.

Speaker 2 And what that means is it's a threshold question for the judge interpreting the facts in front of them that if the mandatory reporter, be it a hospital, teacher, police officer, in a lot of states journalists, if they're acting in good faith in either the reporting of suspected child abuse or their participation in child abuse investigations, they cannot be sued.

Speaker 2 They cannot be in front of a jury for any of those issues.

Speaker 1 Yeah. And can we talk about, you know, really, I think what many both Netflix film watchers and trial watchers missed because of the way that the information was presented at the trial.

Speaker 1 And so I don't sort of blame people for missing this, but

Speaker 1 is that this verdict would have put mandatory reporters in an impossible, you know, legal and ethical double bind

Speaker 1 by allowing this sort of civil litigation to go forward. Can you talk a little bit about what the legality is and what the expectation is for mandated reporters?

Speaker 2 So when the legislatures, not just in Florida, but around the country decided to write these mandatory reporting laws, the collective decision is that they wanted the zealous protection of children and vulnerable adults and the people subject to mandatory reporting.

Speaker 2 They wanted to err on the side of inclusion. The same way we just spoke about in the criminal justice system, they want to err on the side of not sending guilty people to prison.

Speaker 2 In this situation, the way the legislature wrote the laws was they wanted the zealous protection of the most vulnerable in our society. So they wrote the laws in two ways.

Speaker 2 On the front end, they wanted as a requirement, not discretionary, but as a requirement for certain professions, healthcare providers, teachers, firefighters, police officers, that they are absolutely required to report suspicions, not, you know, conclusions, not, I'm sure of this.

Speaker 2 If you have a reasonable suspicion that a vulnerable person, including a child, is being harmed, you have to report it to DCF.

Speaker 2 They made that so mandatory that they said, if you fail to do so, you're liable for a felony. Like, we're talking about jail time for the people that are mandatory reporters.

Speaker 2 Now, the bargain that they made with mandatory reporters, again, not just healthcare workers, but firefighters, teachers, police officers, were that as long as your report is being made in good faith, you have immunity, you have complete protection from being prosecuted, from being sued, as long as you're participating in good faith, which is exactly what all children's position had been from the start.

Speaker 2 And Andrea, I would remind you.

Speaker 2 that from the very first day that we took this case, we were able to successfully prove to the trial court in this case that the call that all children's made to DCF about Maya Kowalski was in good faith.

Speaker 2 And you may note in the opinion that when the

Speaker 2 Second District Court of Appeal on page 15 of their opinion wrote that the trial court, quote, very easily determined that Johns Hopkins All Children's Hospital had reasonable cause to report suspected child abuse to the department hotline.

Speaker 2 That was never in dispute.

Speaker 2 And therefore, that was my client's position that we get immunity for not just the phone call, but for all acts of participation done in furtherance of the child abuse investigation, so long as they were done in good faith.

Speaker 1 Yeah. And I mean, I remember from watching the trial that it appeared to me, notably not a lawyer, but

Speaker 1 you know, that Judge Carroll was taking the position that he could isolate that piece of the event and say that that was immune, but then all of the

Speaker 1 actions that followed, you know, in particular the stuff that relates to the shelter decision and, you know, these other decisions that the hospital was making in following the shelter orders from the court, that those actions were not immune and that those actions were things that they could be sued for.

Speaker 1 And obviously, the appeals court has really strongly disagreed with him and really called out in this opinion that Judge Carroll was misinterpreting the law in terms of Chapter 39.

Speaker 1 Can you speak to that piece a little bit?

Speaker 2 Sure. So on page 17 of the opinion, the second district, the three judge panel unanimously decided this in favor of the hospital's position.

Speaker 2 And what the appellate court said was that the trial court committed error in not considering the entirety of the section, which means not just the phone call, but everything that all children did in conjunction with the mandatory child abuse reporting and investigation.

Speaker 2 And what I really want to highlight for your audience, Andrea, is what the appellate court found when reviewing the entire record. And this was the biggest record ever submitted to this court.

Speaker 2 I'll quote from the opinion on page 17.

Speaker 2 Nothing in this record suggests that all children's hospitals' participation in implementing the dependency court orders as it was required to do was not done in good faith.

Speaker 2 So the appellate court in reviewing this entire record noted what you said, that all children's hospital gets immunity for both the reporting and participating in the child abuse investigation and activities.

Speaker 2 But the appellate court went one step further and said, not only do you get immunity, but when we look back at the entire record, we don't see anything that all children's did.

Speaker 2 with regard to the, for example, implementation of the dependency court orders that was done in anything other than good faith. Yeah.

Speaker 1 You know, one of the things that we're talking about quite a bit on the show right now is a number of these similar lawsuits around the country. There's one in Lehigh, Pennsylvania.

Speaker 1 There's one in Minnesota. There's one in Michigan.
There's one in California.

Speaker 1 And these lawsuits are remarkably similar. Many of them involve munch housing by proxy cases, and they're centered on uh similar legal claims, right?

Speaker 1 You have a lot of the uh false imprisonment, um, things having to do with hospital surveillance, um, intentional infliction of emotional distress, like a lot of very similar claims that are in this lawsuit.

Speaker 1 So, I wanted to ask you about, you know, obviously, this is a pretty strong rebuke on the trial court for letting this even go to trial.

Speaker 1 What do you think the impact will be on other judges who are looking at similar lawsuits?

Speaker 2 So, crash course and the binding effect of opinions such as this.

Speaker 2 This opinion is now binding on all trial courts in Florida that are dealing with this issue.

Speaker 2 To the best of my knowledge, this is probably the most pervasive opinion in the state of Florida on this question of who gets immunity and where does that immunity extend.

Speaker 2 This decision is not binding, meaning trial court in Pennsylvania, for example, is not required to follow this.

Speaker 2 However, we call this persuasive authority in the law, where the lawyers defending healthcare providers and mandatory reporters, whether they be in Pennsylvania or California or any state in our union, can go to that trial court and show them this very well-reasoned opinion and make a persuasive argument why the courts in those states should adopt the same position that the Florida courts have now adopted in a very well-thought-out and reasoned decision.

Speaker 2 So, ultimately, I think this decision is going to move the needle, perhaps dramatically, back into the corner of the mandatory reporters and afford them the protection that the statutes say that they get.

Speaker 1 Yeah. I mean, and this is a little bit of editorializing, but, you know, I think always

Speaker 1 worth noting that some judges are appointed, but many judges are elected. And obviously they are all, as we all are, concerned about their careers.

Speaker 1 I'm assuming that judges don't love having their decisions be overturned by higher courts. And

Speaker 1 I'm wondering, and maybe this is not a question that you can answer, but you know, I just, I wonder about like just also the strength of sort of this decision in terms of like the judges' errors in court, which are such a highlight of this opinion.

Speaker 1 Like, what is the message? And maybe we sort of did cover this already, and I'm getting my brain in a pretzel, but

Speaker 1 in terms of like what it tells

Speaker 1 other judges about how to interpret similar laws in their state.

Speaker 2 Yeah.

Speaker 2 So I think what this does, because it's a very comprehensive 48-page opinion, what this does is gives directions to the trial courts that are wrestling with this question and wrestling with it in good faith, which is where do the good faith protections extend to?

Speaker 2 And what the Second District Court of Appeals in Florida did looking at this huge record, and as your viewers saw, eight weeks of trial.

Speaker 2 a lot of different witnesses.

Speaker 2 What they've ultimately said is this, the good faith protections afforded by the statutes in Florida, which are very similar to the statutes everywhere, are going to cover all activities that mandatory reporters engage in as long as they're done in good faith.

Speaker 2 And it's a threshold question that if it's done in good faith, you cannot be sued. That's the reassurance that I think the mandatory reporters were looking for.
Do we have these protections?

Speaker 2 Are we worried about, you know, hair splitting where I can make the call, call, but then if I show up at a dependency court or if I'm trying to interpret what a court order says, or if I'm giving medical care that I think is in the best interest of the child, can that be second-guessed later in retrospect?

Speaker 2 Or alternatively, as long as I'm doing that in good faith, in what I believe to be in the best interest of the child, do I still have the immunity? And I believe this court.

Speaker 2 answers that resoundingly in favor of the latter proposition.

Speaker 1 Yeah, and I think, you know, I do think that there are so many difficult and sensitive issues that are wrapped up in these, um, in these cases in terms of parents and their rights and their rights to make medical decisions on behalf of their children and all of those things that should be considered, right?

Speaker 1 It's not to say that we should just be ceding full authority to the hospitals, but it's also, you know, it's such a difficult position, I think, for specifically doctors as mandated reporters to be in because then they can end up in a situation

Speaker 1 as they did with the Kowalski case and with many of these other cases that are being, you know, that are the subject of these civil suits, where they are then the custodian by the court, by the court's order, they are then the custodian of that child.

Speaker 1 And so that child is not then being placed in a foster home or with a medical foster parent or, you know, someone else, because those placements are very difficult to make, especially if you have medical complexities.

Speaker 1 And so there is just this really,

Speaker 1 they are in such an especially tricky position. And so I wanted to speak to, you know, not everyone refers to this as a medical kidnapping case.

Speaker 1 However, Gregory Anderson, who was formerly the lead attorney for the Qualskis, is no longer,

Speaker 1 had said specifically that this was a sort of a landmark medical kidnapping case.

Speaker 1 And that speaks to this subject of parents' rights and, you know, that really the medical kidnapping piece is that, is that false imprisonment charge, which again, analogous charges have shown up in almost every other one of these lawsuits.

Speaker 1 So I want to speak about that because the opinion did speak to that specifically.

Speaker 1 And I think many people missed that the reason that Maya Kowalski ended up at Johns Hopkins for those three months, that she ended up specifically there was not because Johns Hopkins was advocating to keep her there.

Speaker 1 In fact, it was, you know, quite the opposite.

Speaker 1 They had mentioned this, which I believe the opinion mentioned this specifically, that they had attempted to transfer her to a different hospital, Namours, which was, you know, that was nixed by the parents.

Speaker 1 And then, you know, and then there was all this other stuff that sort of went on in the dependency court that made it so that she couldn't leave the hospital.

Speaker 1 Can you speak to what the opinion had to say on that?

Speaker 2 Yes.

Speaker 2 So I wanted to go back for a minute because you mentioned that healthcare providers like Johns Hopkins All Children's Hospital are in this unique position where they could be asked by the, or not just asked, but required by dependency courts to be the place of safe shelter.

Speaker 2 The Second District Court of Appeal also noted that it's unique, but I wanted to remind your audience that just because it's unique doesn't mean it's rare.

Speaker 2 And a lot of what you don't see, because these things are literally and figuratively sheltered from society, is that this situation is unfortunately not uncommon, whether it's a situation like we saw where there's a suspicion of medical child abuse or it could be something less or more innocuous where you have a baby born to a drug-addicted mother, right?

Speaker 2 And is going through withdrawal in the neonatal intensive care unit, is testing positive for opiates and is not safe to go home with the mother in that situation.

Speaker 2 And again, the hospital is going to be the first safe place for that child during the weaning, the detoxing, and needs to know that the medical care that it's going to be given, so long as it's given.

Speaker 2 in good faith is not going to be subject to later prosecution. To the question that you asked about false imprisonment, there's a very detailed discussion about this.

Speaker 2 The statutes in Florida, which are very similar to the statutes across the country, give hospitals discretion in terms of ensuring that children under their protection and purview do not elope to a situation that could be in imminent danger.

Speaker 2 The second district correctly cited to the dependency court that found that Maya was in imminent and grave danger had she left the hospital and therefore found it was not a false imprisonment.

Speaker 2 In fact, well within Johns Hopkins' all children's rights and obligation to do what they needed to do to ensure that Maya was not released into a situation that could lead her to imminent harm.

Speaker 2 So therefore, the appellate court looking at this record and correctly interpreting the law not only found that all children did not commit false imprisonment for the period prior to the shelter order being put in place, but found that all children acted lawfully in their decisions.

Speaker 2 And therefore, that is not one of those issues that can go back to trial. That issue has been decided in my client's favor.

Speaker 1 Reproductive care is so important. And did you know that one in four people who can get pregnant will have an abortion?

Speaker 1 Abortion is an extremely common experience that deserves non-judgmental, compassionate, and personalized care.

Speaker 1 Our sponsor, CareFem, gives folks a choice about what type of abortion care works best for them. They have in-person locations with private entrances in Atlanta, Chicago, and the Washington, D.C.

Speaker 1 areas, and they offer medically supported abortion pills by mail in 20 states. So whether you're looking for supportive in-person care or care in the privacy of your own home, they've got you.

Speaker 1 Getting abortion pills by mail from Care FM is simple.

Speaker 1 You just fill out an online order form and a licensed provider will review your medical history and if you're eligible, your medication will be shipped to you in a couple of days.

Speaker 1 And you'll get guidance from CareFM on the process from start to finish with instructions, reminders, and answers to all of your questions whenever they come up 24-7.

Speaker 1 Whichever kind of care you're looking for, CareFM will support you every step of the way. You can learn more at carefm.org.
That's C-A-R-A-F-E-M.org.

Speaker 1 You know you've hit middle age when you find yourself saying things to your kids like, hey, Money doesn't grow on trees, you know, and what am I, made of money?

Speaker 1 Well, the good news is there's a better and less eye-roll inducing way to teach your kids the value of a dollar than sounding sounding like a sitcom dad. And that's Acorns Early.

Speaker 1 Acorns Early is the smart debit card and money app that grows kids' money skills as they grow up.

Speaker 1 The app has a chore tracker and your kids can set savings goals and start building good money habits early. They also get their very own customizable debit card.
Fiona chose one with puppies.

Speaker 1 We are all about puppies right now, which is both cute and useful. Plus, with Acorn Early's spending limits and real-time spend notifications, parents always stay in control.

Speaker 1 So if you're ready to teach your kids the smart way to earn, save, and spend, you can get your first month on us when you head to acornsearly.com backslash nobody or download the Acorns Early app.

Speaker 1 That's one month free when you sign up at acornsearly.com backslash nobody. Acorns Early card is issued by Community Federal Savings Bank, member FDIC, pursuant to license by MasterCard International.

Speaker 1 Free trial for new subscribers only. Subscription fees starting from $5 per month unless canceled.
Terms apply at acorns.com backslash early terms.

Speaker 1 And so speaking of sort of what can be retried and what can't, so most of the decision was reversed.

Speaker 1 And then there were four counts that the appellate court said were eligible for retrial. Can you talk us through what those four counts are?

Speaker 2 Yes. So I'm going to put a big asterisk just so your viewers can listen to the asterisk too.
So technically

Speaker 2 there were the only claims that were potentially subject to retrial were the medical negligence claim, the battery claim, false imprisonment for a couple episodes while she was under shelter order, and the alleged intentional infliction claim only as to Maya.

Speaker 2 You know, for example, the intentional infliction claim as to Beata, that the appellate court not only said, you know, we're finding in the hospital's favor, they specifically said, we don't see a shred of evidence in this record that all children did anything as to Beata Kowalski that was inflammatory or intended to harm her at all.

Speaker 2 So that was one of the many claims that the appellate court in reviewing this record said can't go forward.

Speaker 2 The reason why I said I want you to put an asterisk beside this is because in the very same paragraph where the court said these are the only potential claims that the trial court may consider on retrial, in the same section, they also say,

Speaker 2 We do not address whether any of these claims survive on remand under a correct application of Section 39 immunity.

Speaker 2 And they didn't want to issue an advisory opinion because what this appellate court is saying is you could plead them, but the trial court is going to need to go back and look at it and say, for example, in the medical malpractice claim, if our position will be on remand, if the hospital acted in good faith, and what they believe to be necessary medical care in carrying out the Department of Children and Families directive to safely wean Maya off dangerous levels of ketamine and dangerous levels of opioids.

Speaker 2 If we did that in good faith, our position, and I believe the correct legal position will be we can't be held liable for medical malpractice.

Speaker 2 This is not just a simple situation where you can sue a hospital for medical malpractice when we're operating in good faith under strict orders coming from the dependency court on what we're supposed to provide for necessary medical care for a child under shelter.

Speaker 2 So what I would tell you is while there's a very limited amount of claims that could potentially survive, my interpretation of this is very few will actually see a court when we dissect this because our position from start to finish has been that all children's hospital and their providers at all times acted in good faith in the carrying out and execution.

Speaker 2 of their duties and responsibilities as mandatory reporters under Chapter 39.

Speaker 1 So in terms of like the medical malpractice piece of this for Maya, right, which is it's only the accounts related to her survive, you know, as you said, and I just, I just want to remind listeners,

Speaker 1 that this child was receiving a very high dose ketamine. infusions when she arrived at the hospital.
She had just seen her doctor, Dr.

Speaker 1 Ashrav Hanna, who was giving her a large dose of ketamine and said that I won't give her anymore. You have to take her to the hospital.

Speaker 1 And then when they arrived, Beata insisted on them giving her an amount of ketamine that is not within their standard of practice, was just not something the hospital was willing to do.

Speaker 1 And said that if they wouldn't do that, she would remove Maya from the hospital and put her on hospice care so that she could finally die. So that, you know, speaks to the threat to Maya's life.

Speaker 1 And obviously, we've covered now two cases in a row on the show where Munchausen by Proxy victims died in hospice care, exactly as this one looked to be heading. And in terms of

Speaker 1 what decisions a hospital is enabled to make on behalf of a child like this, it seems to me that you can't have a law.

Speaker 1 like you can't legally require a hospital to do something that they think is dangerous or harmful because a parent asks for it.

Speaker 2 So when we talk about normal medical negligence law, we talk about the standard of care and what a reasonably careful physician would do under same or similar circumstances.

Speaker 2 The conditions where a child is being sheltered with conditions on what she can eat, drink, receive visitors are not same or similar conditions to the average patient walk into the hospital.

Speaker 2 And the Second District Court of Appeal recognized this when they said in footnote three

Speaker 2 that under Chapter 39, necessary medical treatment is defined within the statutory immunity as, quote, the care which is necessary within a reasonable degree of medical certainty to prevent the deterioration of a child's condition or to alleviate the immediate pain of a child.

Speaker 2 So that's exactly the standard that we articulate and have articulated in a case like this.

Speaker 2 We're dealing with emergency situations with the picture that your audience is very familiar with that Maya Kowalski came into the hospital for and that, you know, as you correctly noted, Dr.

Speaker 2 Hanna had even said the ketamine is not working. There's no more I can do with you, despite her receiving what we believe to be the highest doses of ketamine any child's ever experienced in America.

Speaker 2 The standard of care for which all children is going to be judged is going to be whether we comply with the chapter 39 requirements. for the necessary medical treatment.

Speaker 2 We're very, very confident that we can meet those on a good faith basis. And as the second

Speaker 2 district court of appeal noted, to this day, you know, at the time of trial, Maya's medications were allergy medicine.

Speaker 2 So a lot of the proof of the medical care that she received at All Children's and her ability to go back and, you know, we're thrilled that she can live a life of participation and graduate valedictoria at her high school, skate, run, and all of those things at the Second District.

Speaker 2 Court of Appeals, that's certainly evidence that we gave the correct medical care, but we also gave the correct medical care as defined under Chapter 39 as well.

Speaker 1 Right.

Speaker 1 So, yeah, in terms of these other counts, and I wanted to address something that I just listened to Gregory Anderson, again, former attorney for the Kowalskis, suggest in an interview that he thought that these four counts

Speaker 1 could just be allowed to stand with the awards that the jury originally gave to the Kowalskis because, by his reasoning, Judge Carroll did such a thorough job of segregating each count in this case from one another that they could make the decision to just let all of those original awards stand.

Speaker 1 Now, that's not how I read this opinion, but I'm not a lawyer. So, yeah, can you tell us, is there any chance here that

Speaker 1 what's going to happen is they go, well, you get the original $20 million or whatever that you were awarded at trial, and we're just not going to redo any of it.

Speaker 2 Easiest question you've given me so far, the answer is no. That was an option for the Second District Court of Appeal.

Speaker 2 They could have said, you know, these counts are ones that they did not have the evidence to show or all children's is not legally liable for. But these counts, for example, for

Speaker 2 medical malpractice or false imprisonment,

Speaker 2 are legally cognizable and the plaintiff met the threshold. So we're going to affirm the verdict on those.
They did not do that. So that's out the window.
That's not

Speaker 2 a legally debatable question.

Speaker 2 And what's most important

Speaker 2 is that the second district said that in a new trial, the trial court has to rigorously apply the evidence the jury could hear on any of these counts to ensure that the jury is not going to hear evidence of conduct that's clearly covered by Chapter 39.

Speaker 2 For example, to the extent that the plaintiff could survive motions prior to a retrial on

Speaker 2 intentional infliction of emotional distress, they are not going to be, they're clearly not going to be allowed, based on what the second district has said, to start talking about

Speaker 2 the deprivation of Maya seeing her priest, the deprivation of what happened with any of the visitation orders, because I read the second district's decision to say that if it falls under Chapter 39, both the reporting and the good faith participation in child abuse activities, that can't be evidence in the retrial.

Speaker 2 So not only do I disagree with

Speaker 2 Mr.

Speaker 2 Anderson's assertion that these could just stand, we're going to have to closely look at whether there's going to be competent, substantial evidence outside of the Chapter 39 process that would even allow some or any of these counts to go forward at a retrial.

Speaker 1 Yeah, and I wanted to just kind of have us give, ask you to sort of give us a picture of what a retrial would look like and how different that would be than what we witnessed at trial the first time two years ago.

Speaker 1 And the appellate court specifically called out the closing arguments that Anderson made as inflammatory.

Speaker 1 Obviously, you know, having watched nearly every moment of that trial,

Speaker 1 the, you know, the plaintiff's attorneys told a very emotional story. There were a lot of

Speaker 1 pictures of Jack looking patriotic and lots of family photos and they played the 911 call

Speaker 1 when Kyle, the younger child, discovered Beada's body.

Speaker 1 They really told a very emotionally wrought story.

Speaker 1 Would it be, and you know, I was looking at Nick Whitney's, who's now currently representing the Kowalskis.

Speaker 1 You know, his comments about, you know, his comments to the press about this case that he feels sure that they could get the same result from a jury upon retrial.

Speaker 1 And I'm not asking you to op on a mat,

Speaker 1 but I just, I just wonder kind of like, given how this case has been so significantly narrowed, is this a situation where they can just go and do take care of Maya part two and retell this whole, you know, very, very, very sad and very emotional story in court?

Speaker 2 No,

Speaker 2 because the evidence that you can put in front of the court has to be satisfied two things. First, it has to be relevant to a claim being brought.

Speaker 2 For example,

Speaker 2 you talk about the 911 calls and things of that nature. The courts already found that all children's, as a matter of law and as a matter of fact, is not liable for Mrs.

Speaker 2 Kowalski's very unfortunate suicide. And I want to emphasize

Speaker 2 this whole case is beyond unfortunate. I don't want that to get lost.
But the type of evidence that would be available on a retrial is going to be severely pared down because the counts

Speaker 2 that the second district said that may be eligible to be retried and i emphasize maybe

Speaker 2 are vastly different than the ones that were tried the first time second of all the courts said repeatedly that any evidence that would have to go in assuming there is a retrial has to undergo a quote rigorous and proper application of chapter 39 immunity so a lot of the evidence that people got bogged down on whose voice is it interrupting phone calls?

Speaker 2 You know, who said that the priest couldn't come in? You know, what about the denial of communion that DCF did? That's not going to be part of a retrial. So

Speaker 2 we believe that when you actually look at the evidence that

Speaker 2 of what all children did, and it was commented on multiple times in this opinion, that there's really no evidence there's no evidence that all children acted in anything other than good faith in both the phone call and the execution of child abuse protection activities, the retrial to the extent any counts survive and can go forward are going to be very limited on the evidence that can be put forward.

Speaker 1 So I wanted to ask about one of the counts that was, that the court seemed to have the strongest opinion on.

Speaker 1 One of the judges wrote a pretty lengthy piece, which it wasn't a dissenting argument, but it was like a letter of emphasis, or I don't know what it's called legally.

Speaker 1 But one of the judges wrote about, I believe it was the intentional infliction of emotional distress on Maya claim.

Speaker 1 And I believe, and I wanted to just unpack that piece a little bit because it seemed to me that that was kind of of the, in terms of like the claims that they thought were possibly legitimate, it seemed to be that they were saying they thought that one was the most legitimate.

Speaker 1 And I wanted to just talk through that and like which piece of this complicated series of events that refers to.

Speaker 1 And what you, what's your sort of take on what the appellate court is really saying about that?

Speaker 2 So this decision that vindicated my client and their rights under Chapter 39 was unanimous. This is not a split decision.

Speaker 2 It was a 3-0 decision that was signed on to by all of the justices that looked at the law and the evidence.

Speaker 2 There was a special concurrence written by one of the judges that we've read and we respect.

Speaker 2 Remember, when the judges are, when the justices, the appellate court justices are writing their opinion, they're writing the opinion, reciting the facts as most favorable to the non-moving party, right?

Speaker 2 They're not there to re-weigh evidence. They're there to look at the law and see if there was.

Speaker 1 Sorry, can you tell me what does non-moving party mean? Can you put that in a little bit?

Speaker 2 Yes, right. So we were the moving party.
We were moving the court to overturn the verdict. That would make us the appellant.
The appellee would be the Kowalskis.

Speaker 2 They were asking the court not to disturb the verdict.

Speaker 2 When the appellate court, this is just general appellate law, when they're doing this, they're looking at the law and to see if the law was applied correctly.

Speaker 2 And then once they decide here's what the applicable law is, they would look at the facts of the case and in the light most favorable to the Kowalskis.

Speaker 2 So when there's a special concurrence like you're seeing here laid out, my interpretation of this is not that

Speaker 2 Judge Smith

Speaker 2 said all of this happened, right? Because a lot of this is he said, she said, or she said, she said.

Speaker 2 It's written in a way that says that if Maya is to be believed, and we have to take her credibility because we're reviewing this in a light, assuming what she says is true, that some of what she said could support a theory of emotional distress.

Speaker 2 However, at the top of page 45, Judge Tevis Smith Smith also correctly notes the law on this and says that the trial judge will have to weigh whether or not some of the facts fall within Chapter 39 immunity and whether they would be number one relevant and number two admissible on retrial as they would relate to her claims.

Speaker 2 So

Speaker 2 it's a long, legally boring way of saying that it's not the appellate court.

Speaker 2 judge saying we believe everything they said is true they have to take what maya said for the purposes of this appeal and count them as true. That's just, that's not them favoring the Kwalskis.

Speaker 2 If we were the appellee and they were the appellant, they would have to take our version of events as true.

Speaker 2 The judge is just saying that, you know, we, you are going to need to weigh whether what she's saying falls under the good faith immunity, meaning if all children's

Speaker 1 review for us

Speaker 1 what this section pertains to, because the way I read it, you know, this piece of it, the intentional infliction of emotional distress on Maya had to do with Kathy Beatty's alleged actions.

Speaker 1 Is that right? Or is there a piece of this that's the other people from the hospital?

Speaker 2 That would seem to be the primary focus of what Maya was focused on in terms of where she felt that,

Speaker 2 you know, she had been treated unfairly.

Speaker 2 was primarily through Miss Beatty, who again was there assigned as the social worker liaison between the dependency court uh tasked with carrying out orders tasked with providing a child as much comfort as she could while the dependency court held that she needed to be sheltered from mrs kowalski as the court determined that maya was in imminent danger um you know miss beattie obviously has a completely different version of events that your viewers saw at trial and you know there's certainly a credibility battle there that we feel miss beattie acted appropriately but you know with regard to all of that, clearly some of what Ms.

Speaker 2 Beatty was doing was court-mandated child abuse protection activities. So again,

Speaker 2 even in the special concurrence written by Judge Smith, who joined the opinion 3-0 in favor of the hospital, noted that we still have to weigh whether they fall within Chapter 39 immunity.

Speaker 2 And when you're saying that, you have to look at whether those actions were done in good faith or not, because if they're done in good faith and they're done related to conduct, which is in furtherance of child abuse investigations or protection, those actions would be subject to immunity.

Speaker 1 With a business to run and two kids to raise, it's important that we stay on top of our finances in my household. And it helps to have a bank that's actually on your side, which is why I love CHIME.

Speaker 1 You can open a checking account with no monthly fees and no maintenance fees. You can get paid up to two days early when you set up a direct deposit.

Speaker 1 And with qualifying qualifying direct deposits, you're eligible for fee overdraft up to $200 on debit card purchases and cash withdrawals.

Speaker 1 In fact, to date, CHIME has spotted their members over $30 billion, billion with a B dollars.

Speaker 1 And with QIIME, you also get access to over 47,000 fee-free ATMs, which is more than the top three national banks combined. So wherever your holiday travels might be taking you, they've got your back.

Speaker 1 So work on your financial goals through QIIME today. Open an account in two minutes at chime.com/slash believe.
That's chime.com/slash believe. Chime feels like progress.

Speaker 1 And remember, the shopping hour sponsors is a great way to support the show.

Speaker 4 Chime is a financial technology company, not a bank. Banking services and debit card provided by the Bank Corporation Bank NA or Stride Bank NA.
Members of FDIC.

Speaker 4 Spot me eligibility requirements and overdraft limits apply. Timing depends on submission payment file.
Fees apply at out of network ATMs, bank ranking, and number of ATMs, according to U.S.

Speaker 4 News and World Report 2023. Chime checking account required.

Speaker 1 Well, the holidays are barreling towards us at the end of this, the longest year in human history. And I just want to be fancy and cozy at the same time.

Speaker 1 And my favorite brand Quince makes this possible. Of course, Quince's cashmere sweaters are a perennial hit, and I also love their washable silk tops, skirts, and dresses.
Yes, silk that is washable.

Speaker 1 It is so easy to care for and it looks super luxe and polished. I am currently eyeing the silk slip dress and the silk jersey mini wrap for holiday parties.

Speaker 1 And if you're the kind of responsible person who does holiday shopping early, look no further. Quince has beautifully curated gift guides with accessories, sweaters, bedding, jewelry, you name it.

Speaker 1 They also have adorable kids' holiday pajamas. Quince is truly a one-stop shop for all the lovely things.

Speaker 1 And as always, Quince works directly with ethical top-tier factories, so you can skip the middlemen and pay 50% less than similar brands.

Speaker 1 So step into the holiday season with layers made to feel good, look polished, and last from Quince. Perfect for gifting or keeping for yourself.

Speaker 1 Go to quince.com/slash believe for free shipping on your order and 365-day returns. Now available in Canada too.
That's q-u-in-ce.com/slash slash believe to get free shipping and 365 day returns.

Speaker 1 Quince.com slash believe. And remember, the chopping our sponsors is a great way to support the show.

Speaker 1 Lastly, in terms of the counts that could be retried, and this, I think, the false imprisonment counts were one of the hardest things to sort of suss out now and when we were going through the trial, right?

Speaker 1 Because there was these different periods of time.

Speaker 1 So obviously they have not allowed some of the false imprisonment charges to go through, but there's or to be eligible for retrial, but one of the counts related to Maya, they are saying could possibly be retried if again,

Speaker 1 you know, it sort of survives this test of 30, Chapter 39 immunity.

Speaker 1 So can you talk to us about like, what is that having to do with and why did that not sort of like, why did that not get reversed as the other false imprisonment charges got reversed?

Speaker 2 So what the Second District Court of Appeals did was legally correct because at the end of the opinion, they say again in one of the footnotes that we're not going to give an advisory opinion whether any of these could actually survive based on the facts and based on the anticipated argument, which we'll make, that will show that all of these activities were done in good faith in furtherance of either court orders or in furtherance of child abuse and protection activities.

Speaker 2 strongly believe that when we analyze my clients' actions,

Speaker 2 you know, which was always in the best interest of Maya Kowalski,

Speaker 2 against the proper application of Chapter 39, that the court that will review this will determine that my client acted in good faith and that none of these so-called false imprisonments are going to see a retrial.

Speaker 1 Okay. So in terms of a retrial, would this go back to the same trial court?

Speaker 2 To be determined. There's obviously still some appellate processes that have to be exhausted.

Speaker 2 Courts naturally rotate venues and judges. It's extremely hard to speculate when this case could be eligible for retrial or who may be assigned.

Speaker 2 But, you know, regardless of who it is, we feel very confident that when this case is analyzed with the application of the laws, the second district has announced it.

Speaker 2 looking at the facts and emphasizing as the second district did when we looked at the totality of my client's conduct that there's no evidence that all children did anything other than act in good faith in compliance of the child abuse protection statutes.

Speaker 2 Got it.

Speaker 1 So in terms of next steps, what happens now? What happens next?

Speaker 2 So we would anticipate the plaintiff is going to do their best to exhaust their appellate avenues, which is well within their rights.

Speaker 2 uh just as it was well within my client's rights to ensure that we had proper appellate review.

Speaker 2 I can't give you a timeframe of when those appellate rights would be exhausted.

Speaker 2 Based on this very well-reasoned 3-0 decision, we are optimistic that nothing's going to change in terms of the interpretation of the law or the finding that my client acted in good faith.

Speaker 2 In terms of when this could be returned to a trial court to undergo the rigorous application of Chapter 39 and determine what, if anything, survives for a retrial, it's hard for me to give you a timeline other than to say it won't be immediate.

Speaker 2 Yeah.

Speaker 1 I mean, you know, editorializing here, but like, obviously, given how well I know this case, given the fact that I understand the implications of the verdict, given the fact that I've seen this verdict really resonate throughout, you know, my community and, you know, of sort of survivors and family members and mandated reporters and, you know, what this could mean for all these other lawsuits that are so similar.

Speaker 1 I obviously feel an incredible relief

Speaker 1 at this decision, but I also just,

Speaker 1 I will say, just my heart really goes out to Maya and Kyle because

Speaker 1 this has been going on for so long

Speaker 1 and it seems very possible that it could stretch on for at least a couple more years to come.

Speaker 1 And I just really can't imagine,

Speaker 1 yeah, like what, what they're, what they're going through right now in terms of just the fatigue of a situation like this. And I just, yeah, I guess that's just, I just wanted to say that.

Speaker 1 I mean, I just really, I really have,

Speaker 1 you know, I really, yeah, I really have been thinking about them this week. And they're so young and this has just really dominated their entire young lives.

Speaker 1 And they've been asked to relive again and again for the media, for, you know, the court in various depositions. They had had to sit in the courtroom and listen to the 911 call.

Speaker 1 I mean, it just, the fatigue and trauma of that just seems, it's almost incalculable in this, in this situation.

Speaker 2 From the time my client got involved in this case, starting with the phone calls to DCF, everything we did was meant to be in the best interest of Maya Kowalski.

Speaker 2 No one's questioning that she suffered. Our client's position that she was a victim, even unwittingly, of medical child abuse.

Speaker 2 So we share your sentiment that we hope that we can move on from litigation and that Maya and her family can find peace.

Speaker 1 Yeah.

Speaker 1 We will stay tuned.

Speaker 1 Yeah, I mean, I guess just like sort of lastly,

Speaker 1 what I hope people begin to understand about this situation, this trial, these other cases, is that it is not about hospital versus families.

Speaker 1 It is about people who are in a really challenging situation with nothing but difficult options at their disposal.

Speaker 1 Because I have never talked to anyone who works for a children's hospital or in child protection or anywhere else that takes the idea of separating a child from their parents lightly.

Speaker 1 But as you said, you know, the law as it's written, which is, you know, I think a value judgment that most of us do share, is that we should not take chances when there's the possibility that a child could be harmed or killed.

Speaker 1 And yeah, I sort of hope that this situation can be reframed going forward for, you know, closer to reality than sort of what it's been painted.

Speaker 2 And I'm glad you brought that up as the last point because I don't want it to get lost.

Speaker 2 My client's participation at the front end was to report a reasonable suspicion of medical child abuse.

Speaker 2 As the second district said, the trial court, even our trial court, very easily determined that that was made in good faith. There are due process rights from there.

Speaker 2 The state of Florida decides whether or not to investigate the call, whether or not to escalate the call, whether or not to seek either emergency or on a longer-term basis restrictions on parental rights.

Speaker 2 The parents have their due process rights. They have the ability to show up at a dependency court and challenge what the state of Florida wants to do.

Speaker 2 They have the ability to accept restrictions or fight them, fight them to the very end. And so it's not a case where a doctor can make a call and medical kidnapping ensues.

Speaker 2 The doctors, the police officers, the firefighters, the journalists make the call of reasonable suspicion.

Speaker 2 And then the state of Florida decides what to do with it, respecting the due process rights of parents as provided by the law.

Speaker 1 Yeah. And I think, you know, even

Speaker 1 I did an appearance on court TV on the day that this appellate decision came down. And,

Speaker 1 you know, they had sort of framed a question to me of,

Speaker 1 you know, this being sort of a, oh, this was a snap decision and nothing anybody said was going to convince them that abuse wasn't happening.

Speaker 1 And I really challenged them on that because that's just not what the evidence shows. The evidence doesn't show that this was a snap decision.

Speaker 1 They, obviously, there was an elevated threat and you have to make a timely decision when there's an elevated threat.

Speaker 1 But yeah, I mean, there was a ton of back and forth in the courts and there was no evidence that the Kowalskis were deprived of due process.

Speaker 1 And I believe that parents should have due process, my goodness. But I think we have to,

Speaker 1 yeah, I mean, I hope we can, I hope this sort of

Speaker 1 can be a moment of a tide turning a little bit. Yeah, again, back towards just reality and where the facts are that it is not so simple as a doctor makes a decision and everyone just falls in line.

Speaker 1 And it shouldn't be, right?

Speaker 1 I think this is frequently and was in this case positioned as a, and again, this was another thing that sort of came up in my court TV appearance where he said, well, the, you know, the hospital and DCF were in bed together and I don't like that.

Speaker 1 And I think.

Speaker 1 people are framing something that is a necessarily interdisciplinary process for being in cahoots with each other.

Speaker 1 When the reality is, you know, I know from looking at many of these cases, when you have these various branches, law enforcement, the courts, the doctors, and DCF or CPS or whatever the state entity is called, those people disagree with each other all the time.

Speaker 1 And

Speaker 1 cases don't move forward, even when there's strong medical indications of abuse, even when there's strong, you know, evidence of abuse. Those cases don't move forward all the time.

Speaker 1 That happens constantly.

Speaker 1 So you do, you want those entities working together and you can't argue simultaneously that there's no checks and balances.

Speaker 1 And then when there are checks and balances, say, well, all those people are just in a conspiracy with each other. So I'm really hoping that this will elucidate.

Speaker 1 Yeah, again, just reality.

Speaker 2 The DCF proceedings are subject to super strict confidentiality as they should be because It's obviously the most intimate and scary moments for families, children.

Speaker 2 So that's why they're not part of the public record.

Speaker 2 I think the flip side of that is the public's also deprived of seeing the rigorous due process rights, the amount of paperwork, medical opinions, witnesses, testimony that dependency court judges see before they make the difficult determination of whether there's going to be an interference with the rights of a parent and their child.

Speaker 2 So for better or for worse, to protect confidentiality, we often only see a snapshot or the end result without seeing the rigorous application that DCF in the state of Florida, the parents, their advocates go through before we get to the point of

Speaker 2 the drastic question of child separation. But again, my client

Speaker 2 is involved in the phone call and the good faith participation, but not in the decision. Those decisions are made by the state of Florida.

Speaker 1 Well, and similarly, Ethan, you know, we're also not privy to medical records.

Speaker 1 I mean, we we were to, in this case, because it was litigated in court and some of those became public record, but in a normal case that's covered in the media, you know, the family can give a narrative about how the doctors came to their decision.

Speaker 1 And that has to remain unchallenged because the doctors can't speak to the media without a HIPAA release. And those medical records are shared at the parents' will.

Speaker 1 So I do wish and hope and will continue to advocate for my colleagues in the media doing a better job of presenting these cases in their complexities and acknowledging those difficulties in presenting a complete story to the press.

Speaker 1 And

Speaker 1 yeah, so Ethan, anything, any last kind of thoughts to leave us with before

Speaker 1 I leave you? Thank you so much for joining us today. I really appreciate it.

Speaker 2 Thank you, and thank you for your work in this arena. Thanks, Ethan.

Speaker 1 Nobody Should Believe Me is produced and hosted by me, Andrea Dunlop. Our editor is Greta Stromquist, and our senior producer is Mariah Gossett.
Administrative support from NOLA Carmouche.

Speaker 3 The holidays mean more travel, more shopping, more time online. and more personal info in more places that could expose you more to identity theft.

Speaker 3 But LifeLock monitors millions of data points per second. If your identity is stolen, our US-based restoration specialists will fix it guaranteed or your money back.

Speaker 3 Don't face drained accounts, fraudulent loans, or financial losses alone. Get more holiday fun and less holiday worry with LifeLock.
Save up to 40% your first year. Visit lifelock.com/slash podcast.

Speaker 3 Terms apply.