Attorney Michael Manning
Attorney Michael Manning
Casey McKee

Insult to Mortal Injury

John Brooking Jardine's death was tragic and grotesque. The 37-year-old epileptic was pronounced dead at Tempe St. Luke's Hospital on March 30, 1999, after suffering a seizure during his geography class at Arizona State University.

He was needlessly manhandled. Contrary to accepted protocol for seizure patients, emergency personnel from the Tempe Fire Department and Southwest Ambulance restrained Jardine. An ASU police officer handcuffed his hands behind his back.

A lawsuit filed by Jardine's parents alleges that Johnny was thrown face down and that the cop pinned him down with his knee while an EMT straddled his back as Johnny struggled to breathe. Johnny, who was obese, was then loaded, still prone and handcuffed, on a gurney (which had an airtight pad) and perfunctorily carted to the hospital. The disoriented and oxygen-starved seizure victim could only protest with pathetic moans.

Emergency personnel apparently didn't realize Johnny was in such peril. If they did, one key witness says, they didn't react properly. Attempts to resuscitate him in the emergency room failed.

From the moment they learned of Johnny's death, his parents, Debbie and John III, heard a barrage of explanations. A distressing number of them were wrong. Some seemed intentionally misleading.

When Debbie saw her son's body and asked about the deep bruises around his wrists, an ER staffer said they came from tying off intravenous tubes. In fact, they were caused by the handcuffs, which had hampered attempts to revive him.

Somebody told Debbie that because Johnny had died in the hospital, no autopsy was required, but that she could pay for one if she wanted. The distraught mother said none would be necessary. After Johnny's personal physician refused to come to the hospital and sign a death certificate, however, his body was released to the medical examiner. The physician who did the autopsy took the extraordinary step of contacting the Jardines the next day to tell them that their son had been brutalized.

An emergency room doctor told Debbie that Johnny had suffered a "widowmaker" heart attack. The autopsy report said nothing about a heart attack, and determined that "positional restraint" was a factor in Johnny's death.

And these inaccurate assertions were just the beginning. Crucial records were lost or altered in the wake of Johnny's death.

The Jardines call it a "cover-up."

Their lawyer, Michael Manning, says, "We were very dismayed to see that records had been changed. When we took the case, we didn't take it with the expectation that evidence had been tampered with."

Pushed to his physical limit by an intense grand mal seizure and deprived of precious oxygen by his would-be rescuers, Johnny Jardine may well have been beyond saving by the time paramedics got him to Tempe St. Luke's.

In my estimation, the actions of the police, paramedics and EMTs outside the hospital form the linchpin in the Jardines' $20 million lawsuit against ASU, the City of Tempe, Southwest Ambulance and the hospital.

Did they create the conditions that doomed Johnny? Some of Johnny's classmates say claims that Johnny had to be restrained because he was violent are overblown. Were they "oblivious" to the trouble he was in?

Once Johnny was placed in their care, the ER staff's medical actions seem defensible and reasonable.

But the hospital's behavior in the wake of Johnny's death is simply appalling -- flagrant enough, perhaps, to cost it a bundle of money.

A couple of months after her son died, Debbie Jardine asked St. Luke's for her son's medical file. When she picked it up, Debbie, a licensed practical nurse, noticed that one form indicated that an ER physician had dictated notes about her son's condition and treatment. But she had been given no such notes.

She went back to the hospital and demanded the notes. The doctor's dictation was printed out of a computer file and given to her. Before she left, she says, she sat down and compared her records with the hospital's and made certain both sets were identical. The newly printed doctor's notes had been belatedly inserted into the hospital's file.

Months later, Manning requested the same records. But when the attorney received them, the doctor's dictation had changed. In fact, the new notes had been dictated within days before Manning acquired them. The differences between the two versions are significant.

The initial notes indicate that Dr. James McEown was the admitting and attending physician. The new version listed Dr. Kevin Haselhorst. The initial notes say that Johnny had suffered a grand mal seizure. The second set mentions no seizure at all, but instead says he was acting in a bizarre manner, and was struggling even after he was handcuffed. The first version says ER monitors registered some electrical activity -- but no regular pulse -- in Johnny's heart. The second version omits this important fact. The initial notes say that Johnny battled rescuers until a couple of minutes before his arrival at the hospital, when he became pulseless. CPR was then started. The second version says CPR was started en route to the hospital, and that Johnny was hooked to a heart monitor.

Whether the EMTs who transported Johnny did, in fact, attach heart monitors is a crucial and contentious issue. Such monitoring should have occurred if the rescue crew was alert to Johnny's grave condition.

ER nurse Joyce Schiminski is a key witness. In a deposition, she provided a disturbing account of Johnny's demise.

She testified that she took the call in the ER when the ambulance attendants alerted the hospital that they were bringing Johnny in. The EMTs did not say Johnny was not breathing or had no pulse. There was no urgency in their voices, and they never called again to say his condition had worsened.

She was asked: "Do you expect that if it was anybody's perception in the field that John was about to die, that the patch recording would have stated so?"

Schiminski responded: "Yes, it would have."

The nurse said she met the ambulance at the entry to the emergency room. As Johnny was unloaded and wheeled in, nobody on the emergency crew was performing CPR. Johnny had been turned over onto his back by now, but was not "bagged" to force air into his lungs, as he should have been if his caretakers had noticed he wasn't breathing. Schiminski testified that Johnny's appearance so alarmed her that she actually stopped the gurney to assess his condition.

"I said something on the order of: 'Guys, I don't think he's breathing. You want to start CPR and get him into room 1,'" Schiminski testified.

She could not recall with certainty whether any heart-monitor pads had been attached to Johnny when he was brought in. She said she attached pads once he was inside the ER.

She explained that she tried to insert an IV into Johnny's arm, but couldn't because it was handcuffed beneath him. "I need these handcuffs off," she told her colleagues. Someone located a key "within a few minutes," she said. But resuscitative chest compressions had to be stopped while Johnny was rolled to his side and the handcuffs were removed. "I remember asking them to hurry up," the nurse said.

Schiminski said she was "upset" by the whole episode, so concerned about the EMTs' impassive treatment of Johnny that she later voiced her concerns with Dr. Haselhorst and the ER director, Terry Landgraff.

After Johnny's death became news, the state Department of Health Services, which licenses EMTs, contacted Tempe St. Luke's to ask if it was investigating Johnny's death.

Terry Mason of St. Luke's crafted a "Summary of Investigation," which the hospital (possibly mistakenly) released to Manning. Mason concluded that the EMTs had acted appropriately. He vouched for their competence. Mason did, however, note that "one of the nurses on that evening [Schiminski] states that the medics were oblivious to the patient's condition on arrival to the hospital." But he dismisses Schiminski's concern, stating, "I have never found her to be very intuitive or reliable in her assessments or judgments." (Since then, Schiminski has been promoted to charge nurse in the ER.)

More records shenanigans came to light when Tempe St. Luke's responded to the state Department of Health Services' request for information on the case: The "Summary of Investigation" sent to the state was not the one Mason had written. The latter version makes no mention whatsoever of Joyce Schiminski or her concerns.

DHS learned of the existence of the original summary from Manning's office. Still, when she was deposed in September, 18 months after Johnny's death, Schiminski said that nobody from the hospital nor the state had asked to interview her.

Landgraff, the ER director, has testified that the incomplete Summary of Investigation -- the one sent to the state -- was written by the hospital's lawyers. Neither the hospital nor its attorneys returned calls seeking comment.

DHS has launched an investigation into Johnny's death. Kevin Ray, the assistant state attorney general assigned to the case, says it's a "tough one" because the state's investigation is concurrent with the litigation. The lawsuit has had a "chilling effect" on the state probe, he says.

"It makes it more difficult to get the cooperation of the people we need to interview," Ray says.

The defendants are justifiably concerned about the Jardines' lawsuit, and publicity of the case. Their lawyers actually asked a judge to enact a gag order prohibiting release of information to the press. The judge refused. One defense attorney chafed when I informed him I'd obtained a transcript of Joyce Schiminski's deposition.

After constructing complex cases against such notorious characters as Joe Arpaio, Charles Keating and J. Fife Symington III, Michael Manning is surely not as astonished at clumsy cover-ups as he lets on.

He saw evidence tampering when he sued Maricopa County on behalf of the survivors of Scott Norberg, who died in Arpaio's gulag in 1996. The ostensibly "combative" Norberg had been shocked repeatedly with stun guns and strapped into a medieval-looking restraint chair with a towel over his mouth. His head was forced down hard against his chest. He was asphyxiated.

Manning's discovery that the sheriff's office had destroyed or altered evidence helped seal the county's fate. The county gave Norberg's kin $8.5 million.

Manning sees parallels between the Jardine and Norberg cases.

"We could see that the defense here would be that John somehow provoked an assault, just as in the Norberg case. We wanted to protect the family from that sort of behavior," Manning says.

Harding Cure, a lawyer representing the City of Tempe and its firefighters, does indeed allege that Johnny required restraint. He notes that nearly 10 years ago, Johnny was arrested by Fort Myers, Florida, police and charged with assaulting a police officer and resisting arrest.

"This young man had a very violent history," says Cure.

That's a claim the family adamantly denies. "If Johnny's 130-pound sister could handle Johnny and his seizures, these grown men ought to have been able to," Debbie Jardine says.

Johnny's father says that Johnny was pulled over for running a red light shortly after he moved from Michigan to Florida. Johnny balked when the officer demanded he sign the ticket -- Johnny thought that would be admitting guilt, and he didn't believe he'd done anything wrong. The officer informed Johnny that he would be arrested if he didn't sign. Johnny said that was fine with him, and went to secure his car before being carted off to jail. But Johnny, whose motor skills were diminished because of two temporal lobectomies, was a slow-moving chap. He was taking too much time. The inexperienced cop perceived Johnny's disabilities as malingering, and he did a Rodney King on him.

"The officer assaulted Johnny," his father says. "And he and his fellow officers beat him to a living pulp."

Johnny was hospitalized for his injuries. But when he was tried for assault and resisting arrest, the jury acquitted him in 29 minutes. Johnny subsequently sued Fort Myers for violating his civil rights and won a $30,000 settlement.

"They'll go back to anything that's happened in Johnny's life and put their own little twist on it," John III says.

Cure says Manning's portrayals of his clients are "scandals . . . intended to inflame people. That's the tragedy in this case. There's some very fine men who are being inappropriately defamed. Their whole reason for being is helping others."

Manning counters: "There is indeed a scandal, but it didn't start in this office. The minute they grabbed Johnny and threw him to the ground, that's when the scandal started. And it continues after his death."

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