Sunday, 5 June 2011

Nebraska Supreme Court to hear appeal in Carla McKinney's lawsuit against pathologist in baby's death

OMAHA, Neb. — The Nebraska Supreme Court will hear on Thursday the appeal of a woman who sued a pathologist after she was cleared of a felony child abuse charge in the death of a baby in her care.
Carla McKinney, who ran a state-licensed day care at her Lincoln home, filed a lawsuit against Dr. Matthias Okoye more than a year after prosecutors dropped charges against her in the 2007 death of 4-month-old Chase Madsen.
Okoye, who was under contract with Lancaster County, performed the autopsy on the baby for the state. He told law enforcement authorities that the boy died from blunt-force trauma to the head, asphyxia and bleeding on the brain as a result of child abuse. That led police to arrest McKinney.
McKinney maintained that she never abused the baby, and that she had tried in vain to wake the infant from his nap on Oct. 17, 2007. Paramedics also failed to revive the boy. McKinney's attorney at the time suggested the boy may have died of sudden infant death syndrome.
Two pathologists hired by McKinney's defense attorney disagreed with Okoye's conclusions. Prosecutors later dropped the charge against McKinney, saying there was not enough evidence to prosecute her.
McKinney sued Okoye and his corporation, Nebraska Forensic Medical Services, seeking nearly $275,000. The lawsuit said Okoye's allegations were made "carelessly and maliciously without regard to the scientific and medical evidence available."
Last year, Lancaster County District Judge Paul Merritt Jr. dismissed McKinney's lawsuit, saying state law protecting the doctor allows him to make such decisions without the threat of being sued.
In her appeal, McKinney's lawyer, George Moyer of Madison, wrote that the lower court erred in identifying the lawsuit as a defamation case, instead of an action for malicious prosecution.
"If recent news stories about planted evidence, coerced confessions and wrongful convictions tell us anything, it may be that common law and statutory remedies for the damage done by the criminal justice system are not enough, are too weak, and do not go far enough to deter misconduct," Moyer wrote. "These common law and statutory causes of action do not need to be further weakened by following the course of expanded privileges advocated by the defendant."
Okoye's lawyer, James Snowden of Lincoln, defended the lower court's ruling in the lawsuit.
"The district court did not err in addressing McKinney's possible defamation claim along with McKinney's malicious prosecution claim, because it appeared that McKinney could be asserting either or both claims," Snowden wrote in his reply brief submitted to the Nebraska Supreme Court.

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