WEST PALM BEACH, Fla. – After years of litigation, a major settlement was reached last month in what plaintiffs attorneys call a “high-stakes” medical malpractice case filed against a Miami pediatric hospital.
Attorneys for Ava D'Andrea, a young girl left permanently injured following scoliosis surgery at Nicklaus Children's Hospital, contend the defense was caught concealing evidence.
“This has been an incredibly emotional journey for the D’Andrea family,” Sean C. Dominick, a shareholder at Rafferty Domnick Cunningham & Yaffa and co-lead on the case, said in a statement.
“Per the court order, for six years, the defense buried evidence in a calculated effort to dodge accountability. Ava has not only endured life-altering injuries, but also the added burden of a legal process marred by misconduct.”
The lawsuit, filed in 2021 by Ava’s parents, Duane and Christina D’Andrea, alleged hospital staff and a treating physician failed to respond to clear postoperative signs of neurological distress.
Nicole Kruegel, RDCY partner and co-lead on the case, explained that the surgery was a planned scoliosis correction surgery.
“She had tried conservative treatment (therapy and bracing), but her scoliosis curve was getting worse, so surgery was recommended,” Kruegel told The Record. “She was 12 years old at the time of the surgery, which is the normal age range for this type of surgery.”
The surgery occurred on Dec. 6, 2018.
According to the complaint, critical tests and interventions, post-surgery, were delayed despite Ava showing early symptoms of paralysis.
The family argued these delays resulted in irreversible harm, leaving Ava with lower-body paralysis and lifelong complications.
The trial began on June 9, 2024 – just days after the Circuit Court of the Fifteenth Judicial Circuit in and for Palm Beach County sanctioned the defendants, including the hospital system and its attorneys, for “willful, deliberate, and contumacious” violations of court orders.
The court found the evidence presented “showed a pattern of intentional concealment, systemic noncompliance, and a flagrant disregard for discovery rules.”
The court also found the defendants repeatedly withheld critical documents, misrepresented their existence, and failed to produce a required privilege log for more than six months.
“The most important sanctions Judge [Bradley] Harper imposed was a ruling that the defense could not claim that the times stated in the medical record were incorrect,” Kruegel explained. “All of their experts had testified that, if the records were true, the defense was negligent. Their primary defense had been that the records were not true and everything happened at a much later time.”
Kruegel said the judge also allowed a jury instruction informing the jury that the defense had “intentionally obstructed” the discovery process by falsely claiming that documents did not exist.
She said documents revealed that a year-long investigation into Ava’s care was done by the hospital, with the participation of multiple departments.
“Multiple protocols were changed as a result,” Kruegel said. “At no point in that investigation did anyone claim that the times found in the record were incorrect or that anything occurred differently than how it was documented.”
Kruegel said they never got a “coherent” explanation for why the defense claimed these documents did not exist and refused to produce them for years.
And discovering that documents were being withheld was a process, she said.
“It wasn’t until we took depositions last summer that we became suspicious, because defense counsel instructed a witness to not answer our questions regarding an investigation that they had claimed never took place,” Kruegel explained.
“We then filed a motion to compel, which Judge Harper granted in November, and the defense repeatedly and intentionally refused to comply with, culminating in two sanctions orders against them.”
Due to strict confidentiality agreements, no further details of the settlement can be disclosed.
“The family is satisfied with the resolution of the case,” Kruegel said. “Ava has been working incredibly hard since her injury to regain a semblance of normal life and now has the resources to work even harder to be as independent as possible.
“While she will never be normal again, she is glad to finally be able to hold the defendant accountable and is excited to put this chapter of her life behind her.”
In a statement, the D’Andrea family said Ava’s future will forever be shaped by the settlement.
“Through this process, we learned how greatly the odds are stacked against an injured child when a massive hospital system fights to conceal its failures,” they said. “We are grateful that our small but determined legal team fought even harder to expose the truth and ensure justice prevailed.”
Rafferty Domnick Cunningham & Yaffa, based in Palm Beach Gardens, is a plaintiff litigation firm specializing in catastrophic injury and mass torts law.
