Joumana Al Hayek and Nicholas Phillips filed an action against Dr. Kathryn Miles and Northwest OB-GYN, PS, for medical malpractice relating to the delivery of their second child. Although the child was born healthy, Al Hayek’s uterus ruptured during the long painful labor, and she no longer can have children…medicalmalpracticelawyers.com, Washington Appellate Court Affirms Medical Malpractice Defense Verdict Where Palestinian Plaintiff Alleged Bias.
At trial, Al Hayek and Phillips argued two theories of recovery: (1) Al Hayek did not give informed consent to vaginal birth after cesarean (VBAC) because Dr. Miles failed to use an interpreter to inform her of the risks, and (2) Dr. Miles was negligent for not discontinuing Pitocin earlier, and for proceeding with VBAC despite warning signs.
The first theory of recovery required Al Hayek to explain to the jury why she did not fully understand the written and verbal VBAC disclosures provided to her by Dr. Miles. Al Hayek explained she was born and raised in Palestine, that Arabic was her native language, and that her culture differed from American culture because women were not educated about sex or the biology of sex.
She also explained, while she could speak English well enough, understanding written English was more difficult. While Al Hayek emphasized facts about her ethnic heritage, Dr. Miles emphasized how well Al Hayek communicated in English.
The defense emphasized Al Hayek’s employment history, which required her to communicate with customers in English, and her marriage, because her husband speaks English, not Arabic.
After trial concluded, the jury rendered a defense verdict. Al Hayek and Phillips filed a motion for new trial, in which they argued that the jury’s verdict was affected by ethnic bias.
The Washington appellate court held: “we, similar to the trial court, conclude that an objective observer, as described in GR 37(f), could not view race or ethnicity as a factor in the jury’s verdict … The jury’s verdict was not affected by ethnic bias. The trial court’s legal rulings were correct, and when called upon to exercise discretion, it did so reasonably. Affirmed.”