By: Karenlyn Barone
Butterman sat in the front row, with his wife on his right and Nimkoff on his left. Lee sat behind them, but was visible to the jurors who have now begun deliberating and will decide the case.
Every attorney who spoke thanked the jury for its tireless efforts in what has turned into a six-week stint. The four defense attorneys took less than two hours for their collective summations. The prosecuting attorney, Peter D. Assail, took three hours to weave his way through the facts in the case of accused negligent care.
Brian Curly, the attorney for Winthrop Hospital, told the jury that it must try the case on facts alone. "This is a case based on emotion, anger and frustration," he said. "You must decide this case on evidence. Put aside the sympathy."
Alyssa's parents, David and Lisa, contend that after Butterman diagnosed their daughter with the flu and her condition deteriorated dramatically, he never changed his original diagnosis.
"Flu, flu, flu," chanted Assail, mimicking Butterman's assessment of Alyssa's condition.
Assail told the jury that Butterman was a doctor so committed to his diagnosis that it "clouded his judgment" and caused him to be dismissive of Alyssa's family's concerns. Throughout the trial, Assail portrayed Butterman as a doctor who practiced unconventional, alternative healing methods on his patients.
"[Alyssa] got pneumonia under Dr. Butterman's care," said Assail. "If she had gotten antibiotics any time before, she would be alive today."
Alyssa was admitted to Winthrop University Hospital with bi-lateral bacterial pneumonia and responded to treatment. But Assail contends that doctors ignored signs that fluid was building around her heart, causing her breathing and heart rate to rise to an abnormally high rate.
"Alyssa was struggling for life and she wasn't getting any help," said Assail to the predominantly female jury, as Angela Molinari, Alyssa's grandmother, wept openly.
Assail went on to say that Alyssa was in the hospital for five days, yet "a cardiologist never put a stethoscope to her chest."
The attorneys representing the doctors and the hospital contended that Alyssa received appropriate care. They claimed that a procedure to remove the fluid around the girl's heart would have been too dangerous, and constant monitoring of the volume of fluid ensured that there was no interference with the heart's ability to pump.
But Assail said that when the doctors removed the fluid surrounding Alyssa's heart, 30 minutes after it had stopped beating, it began to beat again and then finally stopped. "Up until [when her heart stopped], she could have been saved," he said. "But you can't save a child if you don't even suspect that there is something wrong with her heart."
In his closing argument, Curly told the jury that the case was "not about the loss of a child, or the emotional aspect of losing a companion.
"This is strictly about economic loss," he said.
Anticipating Assail's closing comments, Curly said, "There is no cover-up, no conspiracy here."
But Assail told the jury that the vials of fluid taken from Alyssa's heart were missing and therefore unavailable for conclusive testing to determine the cause of death. The "code sheet," which details efforts to revive a patient, is also missing. Additionally, the blood gas work-up that Dr. Nimkoff reportedly ordered on the night of Alyssa's death is also missing. Finally, Assail said that Nimkoff lied under oath about what time the test was finally taken.
Nimkoff told Alyssa's parents that she did not know the cause of the girl's death, yet the death certificate lists pericardial effusion: fluid around the heart.
"What you ended up with here was a cover-up," Assail concluded.
