Joumana Al Hayek and Nicholas Phillips filed an action against Dr. Kathryn Miles and Northwest OB-GYN, PS, for medical malpractice relating to the delivery of their second child. Although the child was born healthy, Al Hayek’s uterus ruptured during the long painful labor, and she no longer can have children. At trial, Al Hayek and Phillips argued two theories of recovery: (1) Al Hayek did not give informed consent to vaginal birth after cesarean (VBAC) because Dr. Miles failed to use an interpreter to inform her of the risks, and (2) Dr. Miles was negligent for not discontinuing Pitocin earlier, and for proceeding with VBAC despite warning signs.
The first theory of recovery required Al Hayek to explain to the jury why she did not fully understand the written and verbal VBAC disclosures provided to her by Dr. Miles. Al Hayek explained she was born and raised in Palestine, that Arabic was her native language, and that her culture differed from American culture because women were not educated about sex or the biology of sex. She also explained, while she could speak English well enough, understanding written English was more difficult. While Al Hayek emphasized facts about her ethnic heritage, Dr. Miles emphasized how well Al Hayek communicated in English. The defense emphasized Al Hayek’s employment history, which required her to communicate with customers in English, and her marriage, because her husband speaks English, not Arabic.
After trial concluded, the jury rendered a defense verdict. Al Hayek and Phillips filed a motion for new trial, in which they argued that the jury’s verdict was affected by ethnic bias. They focused on remarks by defense counsel in opening—that Dr. Miles is from this part of the world and that Spokane is her town; they also focused on a portion of defense counsel’s closing—repeatedly describing Al Hayek’s family as close-knit. Both parties submitted declarations and legal briefing to the trial court, and the court held a hearing after which the motion was denied. The plaintiffs appealed.
The Court of Appeals of the State of Washington Division Three stated in its January 30, 2025 Opinion that upon a motion for a new civil trial based on a claim that racial bias affected the verdict, courts must ascertain whether an objective observer who is aware that implicit, institutional, and unconscious biases, in addition to purposeful discrimination, have influenced jury verdicts in Washington State could view race as a factor in the verdict. When a civil
litigant makes a prima facie showing sufficient to draw an inference of racial bias under this standard, the court must grant an evidentiary hearing to determine if a new trial is warranted. At the hearing, the trial court is to presume that racial bias affected the verdict, and the party benefiting from the alleged racial bias has the burden to prove it did not. If they cannot prove that racial bias had no effect on the verdict, then the verdict is incompatible with substantial justice, and the court should order a new trial under CR 59(a)(9).
The Washington appellate court stated: “We clarify that “could” means a “reasonable possibility” … we consider the content and subject of the statements, the frequency of the remarks, the apparent purpose of the statements, and whether the comments were based on evidence or reasonable inferences in the record.”
The Washington appellate court stated with regard to the case it was deciding: “To determine whether the remarks could have played a factor in the verdict, we must consider the frequency of these and similar remarks. Here, these remarks were only made once, during opening, and Al Hayek and Phillips do not assert that they or similar remarks were repeated after the trial court put defense counsel on notice. Also, we note that Al Hayek presented evidence consistent with the remarks, and that the remarks supported one of her central arguments—that she did not understand the consent form because she is from another country, with a different language and culture … We next consider defense counsel’s statements in closing, repeatedly describing Al Hayek’s family as close-knit. The description was based on evidence Al Hayek presented at trial. The apparent purpose for defense counsel describing the family as close-knit was to cast doubt on Al Hayek’s claim that she was not proficient in English. Defense counsel’s argument was that the only witnesses who supported Al Hayek’s claim of limited English proficiency were close family members, and they were obviously biased. This is an argument made every day in court—the stronger the affinity between the party and the witness, the less the witness should be believed. This argument applies equally to all ethnicities.”
The Washington appellate court held: “we, similar to the trial court, conclude that an objective observer, as described in GR 37(f), could not view race or ethnicity as a factor in the jury’s verdict … The jury’s verdict was not affected by ethnic bias. The trial court’s legal rulings were correct, and when called upon to exercise discretion, it did so reasonably. Affirmed.”
Source Hayek v. Miles, M.D., No. 39989-3-III.
If you or a loved one have suffered serious harm as a result of a birth injury in Washington State or in another U.S. state, you should promptly find a Washington medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your birth injury medical malpractice claim for you and represent you or your loved one in a birth injury medical malpractice case, if appropriate.
Click here to visit our website or call us toll-free in the United States at 800-295-3959 to find medical malpractice attorneys in your U.S. state who may assist you.
Turn to us when you don’t know where to turn.
