Parents sue doctor, hospital over handling of son's remains -
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Parents sue doctor, hospital over handling of son's remains

Pregnant with twins, Jill McCall and her husband, Victor, received some sobering news: One of the twins was lifeless, and the other likely wouldn't make it much past birth.

Devout Christians, the McCalls said they made a request: After delivery, the family wanted to baptize the lifeless fetus, cremate it and create a memorial on their farm near Castana in northwest Iowa.

Through a series of twists, the McCalls say they endured both a mind-blowing miracle and a mindless misstep when Jill went into labor in April 2011.

One twin not only survived birth but lives to this day, a relatively healthy toddler.

The other twin — who died early in the pregnancy — was disposed of with the placenta and other medical waste, according to a lawsuit.

No baptism. No preservation. No explanation.

Now the McCalls have filed suit against the doctor and the Methodist Women's Hospital near 192nd Street and West Dodge Road, alleging that the hospital violated a state law by failing to heed their desire to preserve the fetus.

Methodist Hospital and the physician — Dr. Andrew Robertson — have filed answers to the lawsuit in which both defendants generally deny wrongdoing.

Methodist spokeswoman Claudia Bohn said the hospital would have no comment, except to say: “Methodist complies with Nebraska state law and the parents' wishes when disposing of fetal remains.”

Robertson's attorney, James Snowden, said his client has vast experience in dealing with at-risk pregnancies and is respectful of parents' wishes. However, Snowden pointed out, a doctor doesn't tend to fetal remains any more than another doctor would tend to the body of a deceased adult. Such arrangements are typically made between the hospital and the funeral home.

Snowden said the McCalls may have communicated their desire to baptize the fetus to Methodist staff members.

“But there is definitely a dispute that there was a communication to Dr. Robertson,” Snowden said.

The 11-page lawsuit — filed by the McCalls' attorney, Jason Bruno — alleges that Methodist and its staff violated a state law that details how hospitals should deal with the remains of a fetus or stillborn child. The law, passed by Nebraska lawmakers in 2003, dictates that “every hospital shall maintain a written policy for the disposition of remains of a child born dead at such hospital.”

“A parent shall have the right to direct the disposition of such remains ... within 14 days following the delivery of such remains,” the law says. “The hospital shall notify at least one parent of such parent's right ... and shall provide at least one parent with a copy of its policy with respect to such disposition.”

Dozens of other states have similar laws, and hospitals and funeral homes have sometimes borne the brunt for failing to follow those laws.

As early as 1934 a jury awarded damages to a New York man after a cemetery either lost or misplaced a stillborn child. More recently, in 2004, a jury slapped a Brooklyn hospital with a $1.8 million judgment for improper disposal of a fetus. That amount was later reduced.

Although this appears to be the first lawsuit of its kind in Nebraska, it isn't the first time an Omaha hospital has come under scrutiny for the disposal of human remains. Three years ago a New Zealand couple expressed concerns about the Nebraska Medical Center's disposal of their daughter's original organs after the daughter went through several transplants. The couple said they had expressly requested their daughter's organs.

The McCalls said they made their desires clear, too — from shortly after they were informed that at least one twin would not live.

Jill, 33, said she always believed that she was destined to have twins. When she got pregnant in September 2010, she soon learned that she indeed was expecting identical twins.

About four months into her pregnancy, however, the news was grim: Robert Thomas — R.T. — had died in her uterus.

Jill was sent to Robertson at Methodist Women's Hospital. Robertson has specialized in maternal fetal medicine, taking care of women in high-risk pregnancies, for 26 years, 22 of them in Omaha.

Jill said Robertson delivered grim news the first time that he examined her ultrasound images.

The second twin wasn't much better off than the fetus that had died, Robertson said, according to Jill.

Robertson pointed out how the living fetus' bladder and kidneys were enlarged. The McCalls later would find out that the living fetus suffered from a bladder blockage known as urethral valve syndrome.

That twin likely would die after birth, in part because his lungs would never develop, Robertson said several times, according to both McCalls. Either that or the fetus might die in the womb.

“He gave us no hope,” Jill said.

Snowden said Robertson has a different recollection. Snowden said Robertson went so far as to explore options on whether there was a specialist who could operate on the child's condition while in the womb.

“There was no statement that this child definitely was going to die,” Snowden said.

Jill said she went through the next four months mourning the loss of one twin and dreading the impending loss of another. Her monthly appointments had Robertson only repeating the grim outlook, she said.

In March 2011, she said, she made arrangements with a local funeral home to cremate the remains of both twins after the birth.

In the months that followed, she said, the living twin, Michael, never stopped kicking — or hiccuping. He constantly did gymnastics in the womb.

By early April Jill realized that her pregnancy had advanced to the point at which most babies can survive outside the womb. She said she called Robertson's office to see if “we should be doing any further testing on the baby.” She said a nurse responded by questioning whether she wanted to be prescribed antidepressants.

Then came Good Friday.

Thirty-three weeks into her pregnancy — a full-term pregnancy lasts about 39 to 40 weeks — the McCalls were at Robertson's office. During another ultrasound examination, they said, Robertson began to talk to them about “comfort care measures” — about whether Jill wanted to hold the baby until it died.

Moments later, Jill went into labor.

Over the next five hours, she said, she mentioned several times the McCalls' desire to baptize both the fetus and the baby. She also mentioned to the hospital's nurses that she had a funeral home to handle the remains. Snowden said there is an indication in the medical records that the “pastoral care” unit at Methodist was alerted.

“I don't know how many times we said 'We want them baptized in the hospital,'” Jill McCall said.

She said she was told by a nurse: “We'll get all those details from you in a little bit.”

With Victor at her side, Jill gave birth. Michael was a footling breech, meaning his feet came out first. His bladder — which had ruptured — was bigger than his head. “He looked like he was pregnant,” Jill said.

Robertson cut the cord and handed “Mikey” to Jill.

“You don't have much time with him,” he said, according to Jill.

“I held him and he looked perfect,” she said. “Then my husband blew his nose — and Michael's eyes popped open.”

The baby sneezed. A nurse asked if she could put a diaper on him.

As she did, the nurse piped up: “We have to get this baby to the NICU. He's so strong.”

“I was so torn,” Jill said. “All I had been told was that he wasn't going to live. I just kept thinking 'He looks so perfect. He's gonna make it.'”

Make it, he did, though it was no easy go.

Jill McCall said she was so consumed with Michael's unexpected turn and whether he was going to survive that she didn't spend much time thinking about the fetus. She assumed that the medical staff was tending to their request.

For a moment, Robertson was attentive to the fetus. He took time after the delivery to show Victor McCall the fetus, which was emaciated and attached to the placenta. The fetus — believed to have died in the 17th week — measured about 5 inches long.

Its whereabouts from that moment on are unclear, though it was in pathology for a time.

The day after the birth, Victor McCall asked a nurse about the fetus. He said the nurse told him “we don't keep that stuff.” Jill McCall said her sister went to Robertson's office the following week to inquire about the fetus. She, too, received no answers.

The McCalls had planned to build a memorial with a boulder and a marker — and spread R.T.'s ashes over it — on their farm. Jill said she had a simple, significant reason for wanting to do so.

“That's my baby,” she said of R.T. “Being an identical twin, he was a huge part of Michael.”

At the same time, Jill said, she is overjoyed that Mikey made it. Now a sturdy 2-year-old, he's had four operations, including heart surgery, since birth. He has some problems with his eyes — his pupils are constantly dilated. And he has problems with his bladder; the McCalls have to use a catheter to help him four times a day.

But he's “all boy,” a strong toddler who plays with toy cars and balls and his older sisters, Macie and Mallory.

“For him to survive, there's a reason,” Jill said. “I don't know what he's going to do, but he's going to do something big.”

“It's a remarkable and wonderful thing,” said Snowden, Robertson's attorney. “Dr. Robertson couldn't have been happier about the fact that the child did survive.”

Jill used these words to describe Mikey's survival: “Amazing.” “Blessing.” “Miracle.”

And these words to describe R.T.'s disposal: “Thoughtless.” “Disrespectful.” “Disheartening.”

In short, she said, the McCalls had a very good Friday — and a bad one, too.

“It's so emotionally crazy,” she said. “God blessed us by allowing Mikey to live.

“At the same time, I just hope that no other family has to go through what we did (with R.T.). That's a huge reason for (the lawsuit). It's our main thing.”

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