Karenlyn Barone
"This is the saddest victory," said Michael Molinari, the still-grieving grandfather. "This victory was very painful."
Molinari, of East Rockaway, spoke those words after a $7 million verdict was handed down Dec. 18 in the wrongful death of his granddaughter, Alyssa Agoado.
The four-woman, two-man jury ruled that Dr. Laura Nimkoff, the attending physician, and Dr. Donna Better, a pediatric cardiologist, both of Winthrop University Hospital, and Alyssa's pediatrician, Dr. Clifford Butterman of Oceanside, deviated from "good and standard practice" and contributed to the death of the 5-year-old.
Alyssa died on Dec. 31, 1999. She was originally seen by Butterman that Dec. 20, when he diagnosed the flu and advised her parents, Lisa and David, to give her plenty of fluids and to administer Motrin for her fever. When Molinari called on the evening of Dec. 25, concerned with Alyssa's worsening condition, Butterman advised tablespoons of Gatorade or ginger ale for vomiting. The jury said Butterman should have advised the family to take Alyssa to the emergency room. For that fateful omission, they found him 30 percent responsible for her death.
Alyssa was diagnosed with bilateral bacterial pneumonia on Dec. 26, after being admitted to Mercy Medical Center's Emergency Room. She was then transferred to Winthrop University Hospital and placed in Nimkoff's care. In his summation, prosecuting attorney Peter Assail said that Alyssa responded well to the treatment for pneumonia, prescribed by Dr. Paul Lee, a specialist at the hospital. Although named in the suit, the jury did not find Lee guilty of any wrong-doing.
But infectious fluid had built up around Alyssa's heart, making it impossible for her heart to pump properly. The condition went untreated, and Alyssa went into cardiac arrest. The jury found Nimkoff 65 percent responsible for the girl's death. Better was found to be 5 percent responsible.
"They are responsible for my little girl's death," said Lisa in an interview with the Herald. "Finally, four years later, someone is being held accountable."
The original verdict of $8 million, handed down Dec. 17, was reduced to $7 million the next day, when the defense attorneys argued that the wording of the charge to the jury be changed. The original question asked dealt with how much the jury would award for the pain and suffering and the death of Alyssa. The charge was changed to eliminate the consequence and consideration of death, and the jury was asked to return to the court with the amount they would award for Alyssa's pain and suffering only, and the final verdict was $7 million.
"Everyone will think we're millionaires now, but my daughter and money do not go together," said David. "I hate that equation."
Addressing the court after the amended award, Justice Edward W. McCarty III said that the results of an autopsy are a crucial factor in a case such as Alyssa's. "If it had been done, it would alleviate some of the pain her death generated to her family," he said.
With Molinari crying openly, Justice McCarty continued. "[An autopsy] would have answered the question, 'Why did she die?'"
McCarty then told the court that he plans to propose legislation to require two health-care professionals to review and document death certificates. It was a disturbing revelation during testimony when Nimkoff said that she did not know the cause of Alyssa's death, yet a cause had been noted on the certificate entered into evidence by Assail.
"I look forward to the day when I stand with the Agoado family and sign into effect Alyssa's Law," said McCarty.
The attorney for Butterman, Jesse Graham, said he does not believe that his client did anything wrong. "The American justice system decides cases on proof, evidence and the law," he said. "This is what happens when cases are decided on speculation. I don't believe Clifford Butterman caused [Alyssa's] death or her pain and suffering. We will be aggressive on appeal, and I believe he will be exonerated."
The appeal is scheduled for January 23, 2004.
"This is not about money," said Lisa. "It stopped being about money when they refused to settle out of court. This was about my daughter's day and justice for her. They could have saved her, but instead, they were her killers."
