Family of slain journalist agrees to nonmonetary settlement with city to improve emergency services

by Mary Alice Patterson, Law Reporter Staff

Rosenbaum v. D.C., D.C., D.C. Super., No. 2006 CA 008405 M, Mar. 8, 2007.

Financial damages are the usual way to compensate individuals and their families when someone is hurt because of another’s negligence. But when the family of David Rosenbaum sued the District of Columbia for the negligent emergency medical treatment that David received, the parties agreed to an unconventional settlement—the family will forgo a monetary award in exchange for a promise that emergency medical services will improve so that what happened to David will never happen to anyone else.

While taking a walk one evening near his home in Washington, D.C., David was mugged. Two robbers struck him in the head with a metal pipe and took his wallet. One of David’s neighbors found him lying semiconscious on the sidewalk. An ambulance was called and took him to a hospital, where he was treated for the head injury, but David died two days later. At 63, David had recently retired from the New York Times, where he had been an editor and reporter in the Washington bureau for more than 25 years. He is survived by his adult son and daughter, two grandchildren, and a brother. He was also survived by his wife, who died five months later of colon cancer.

Just days after David’s death, questions were raised about the emergency care that David received, both at the scene and at the hospital. David’s family wanted to know exactly what had happened to him that night. His brother was referred to AAJ member Patrick Regan, of Washington. “After the Rosenbaum family initially contacted me, I began investigating the case and realized that David’s death was completely unnecessary and was due to a series of errors by virtually every health care professional who came in contact with him,” says Regan. AAJ members Paul Cornoni and Catherine Bertram, both of Washington, worked with Regan on the case. The city also opened an investigation into the matter.

Regan’s investigation and the subsequent report by D.C.’s inspector general found that the emergency medical technicians from the fire department, who were the first to arrive at the scene, assumed David was drunk because he was vomiting and smelled of alcohol. This conclusion led them, the ambulance personnel, and staff at the hospital to treat David with less urgency. It took the ambulance driver more than 20 minutes to arrive. He then took David to the hospital farthest away, instead of a hospital located much closer to David’s home, because he wanted to see a friend who lived nearby. David arrived at the hospital more than one hour after the first responders got to the scene.

Because of poor communication about David’s condition among nurses and doctors at the hospital, a supervising nurse determined his injury was a low priority and left him unattended in a wheelchair for more than 45 minutes before he was seen by a physician. He was at the hospital almost four hours before he was given a neurological evaluation, and doctors did not operate to relieve pressure on David’s brain until seven hours after he had arrived. Had health care providers at the hospital properly treated David, he would likely have made a full recovery despite the delay in getting him there, Regan says.

The inquiries also found deficiencies in the police department. Although police soon arrested Percey Jordan and another suspect when activity was reported on David’s stolen credit cards the day after his attack, the investigations found that David’s assailants were involved in numerous assaults in the two years before his death. About a month before David was attacked, a D.C. worker was beaten and his cell phone was stolen. Calls were made from the victim’s cell phone after it was stolen, but police failed to follow up on that lead. In fact, the police department never properly documented or investigated the attack. Officials later determined that the calls from the cell phone were made to Jordan’s house. The victim in the earlier attack recognized Jordan as the man who had attacked him.

A jury convicted Jordan for David’s murder and sentenced him to 65 years in prison. The other suspect in the mugging was sentenced to a 26-year term.

As the investigations unfolded, David’s family began to see a pattern of neglect that permeated D.C. emergency services. David’s children, individually and on behalf of their father’s estate, sued the city, hospital, and two emergency room physicians. Claims against the city alleged that (1) the fire department and emergency medical workers at the scene of the attack failed to properly assess David’s condition, (2) the ambulance personnel failed to transport David to the nearest hospital, and (3) the police department failed to investigate the prior assaults. Suit against the hospital alleged that emergency room personnel failed to perform an immediate triage assessment and timely neurological exam, among other claims.

Within two months of filing the lawsuit, however, the family’s goals in the litigation began to change, says Regan, shifting from a focus on “holding the city responsible for David’s death” to “trying to determine whether there were ways to fix the system and prevent future families from having to go through the agony that they experienced.” Shortly after D.C.’s new mayor was elected, he contacted David’s son, asking him to help the administration change the way emergency medical services are provided in the city. Regan suggested the family consider dismissing their claims against the city as a show of good faith. Regan spoke with D.C.’s new attorney general on several occasions, and the city and the Rosenbaum family ultimately reached an agreement in which the city would establish a task force to investigate ways to improve emergency medical services, and in exchange, the family would dismiss all claims against it.

The task force includes about 13 members and is chaired by the new chief of the D.C. fire department. Other members include D.C.’s mayor, David’s son-in-law, and Regan. The task force has six months to complete a report recommending changes to improve emergency medical services, and the city will then implement those recommendations. If David’s family is not satisfied with the changes, however, they can reinstate the lawsuit within one year of the agreement.

The claims against the hospital and the physicians are pending.

“I hope that the example set by the Rosenbaum family will prompt other attorneys to consider creative resolutions to cases where the focus shifts from an entirely monetary settlement to a resolution that has a broader impact than just on the litigants in the case,” says Regan.