Brian J. McKeen

Beaumont Health admitted that it was liable for the death of Sophie Rassey, a twin born at 28 weeks at Beaumont Hospital in Troy on March 7, 2018, who died three days later after a chest tube was placed to reinflate her collapsed lung. Beaumont’s lawyers then asked the Oakland County Circuit Court for an order ensuring that the medical team who treated her would never have to testify about what happened.

Brian McKeen represented Sophie’s parents, Melissa and Rick Rassey. His position was that a provider who injures or kills someone “can’t shield the victim’s family from discovering the details of the incident by making a tactical decision to admit liability.” Oakland County Circuit Judge Rae Lee Chabot ordered the Beaumont medical team involved in Sophie’s care to sit for depositions, and in July 2022 the Michigan Supreme Court declined to disturb her order.

McKeen began practicing law in Michigan in 1982. In a 2001 trial against Henry Ford Health System, in an obstetric case in Flint that settled before the last two days of trial, in the depositions of the pediatric neurologist Yasser Awaad and the first two trials over his diagnoses, and in the Rassey case, the dispute came down to what the hospital knew—what it had been told, by whom and when—and whether a patient’s family could make the hospital account for it under oath.

The Rasseys’ Four-Year Fight for Depositions

Melissa and Rick Rassey, of Macomb Township, were first-time parents expecting twin girls who shared a placenta. At 28 weeks Melissa began to develop symptoms of HELLP syndrome, a life-threatening form of preeclampsia, and on March 7, 2018, doctors at Beaumont’s Troy hospital delivered the girls by emergency cesarean section; she said it “essentially would have been fatal for all of us if they didn’t take them out that day.” Sophie weighed 2 pounds, 6 ounces. Her sister, Lilah, weighed two ounces less. Both were treated in the neonatal intensive care unit with CPAP and supplemental oxygen. One of the nurses told the parents that the girls were doing everything a 28-week-old baby is supposed to be doing.

Three days after the birth, a lobe of Sophie’s left lung collapsed, and a doctor said he needed to place a chest tube to reinflate it. The parents were told it was a standard procedure that the doctor had performed many times. It took multiple attempts to insert the tube. Then the doctor reported that Sophie was getting sicker. There was blood on the tube. “When he said that there was blood in the chest tube, I asked if he made an error, and he said it’s possible he may have made an error,” Melissa Rassey said. Doctors feared brain damage and talked about moving Sophie to Beaumont’s Royal Oak hospital. The staff began bagging Sophie and working to keep her alive. She lost blood, was given an emergency transfusion, and could not be resuscitated. She was pronounced dead at 12:15 p.m. “I only had the chance to hold her when they stopped doing her life support and she was passing away,” her mother said.

Hours later, she said, the same doctor came back and told her that 90 percent of babies survive at 28 weeks and that Sophie should have been one of them. He would say only that an error was possible and that the autopsy would confirm it. More than a week later, a different Beaumont doctor told the parents that the first doctor had put in the wrong side of a guidewire—the hard side instead of the soft side. A blood vessel was injured, and bleeding followed. “How does that happen? How do you put in the wrong side?” Melissa Rassey asked. “I just think they got too comfortable in their position, and they weren’t paying attention,” Rick Rassey said.

Lilah stayed in the same unit under the same team, and for 60 days after Sophie died the parents dealt with the doctor accused of the error. He apologized. “I don’t want to talk to you because I think it’s your fault,” Melissa Rassey told him. The parents asked that he be taken off Lilah’s care, and Rick Rassey said the hospital told the family that a resource constraint required him to rotate between Beaumont’s Royal Oak and Troy hospitals. Lilah grew strong enough to go home. Her parents took apart Sophie’s crib and packed away her things. They have not told Lilah about her twin, though she sometimes looks at Sophie’s photograph on the mantel, and at Christmas the family hangs a stocking for Sophie.

Beaumont admitted liability and asked the court to keep the treating team from being deposed. Rick Rassey said the hospital was “using its admission of negligence as a shield.” “Admission is not a satisfactory resolution to this case,” he said. “We need to know who in the room made the fatal mistake. How did it happen? And what processes can be implemented to avoid this mistake from happening to another family?” By the summer of 2022 the case was four years old. “Lilah is over 4 years old, and we still haven’t even deposed the defendants at this point,” he said. “I think it’s ridiculous. It’s insensitive.”

“Patients and their families just want to know why,” McKeen said. “It adds insult to injury to make the family wait this long and fight so hard,” he said. “And go to these extremes, all the way to the Supreme Court, simply to have an opportunity to have their questions answered.” Beaumont’s spokesman, Mark Geary, said privacy laws and pending litigation limited what the hospital could say about a particular patient’s care, called a patient’s death devastating, and said the hospital strives to give families accurate and timely information about how a patient died. When the Supreme Court declined to disturb Judge Chabot’s order that July, more than four years had passed since Sophie’s death.

The University of Michigan made a similar attempt to avoid depositions in another of McKeen’s cases, brought for Alayna Perkins, and the Supreme Court’s order in Sophie’s case was expected to affect hers. Alayna was born with Ebstein’s anomaly and received a heart transplant in January 2016, when she was 5 months old. Afterward she had a chronic norovirus infection and trouble gaining weight, and her parents, Elizabeth Taylor and Alonzo Perkins, took her to the university’s C.S. Mott Children’s Hospital for a second opinion. On December 2, 2016, Alayna underwent a cardiac catheterization there. Children with chronic illnesses are prone to low blood sugar, McKeen said. Her blood glucose reading was 59 mg/dL at 7:41 a.m., nearly an hour before the procedure. “Nobody really paid much attention to that,” he said. It was not checked again until 2:02 p.m., when it was undetectable.

McKeen said the staff “negligently failed to follow the usual protocol of checking blood glucose during the procedure,” and that modern blood-gas equipment “will give you a concomitant reading.” “But they weren’t using that equipment in their cath lab at U-M at the time,” he said. Hours later, her father said, a nurse noticed that Alayna had not woken up and was having seizures. The next day a doctor acknowledged the drop in her blood sugar, and a CT scan showed serious brain damage. McKeen said she “had a perfectly normal brain before this,” that she suffered profound hypoglycemic brain damage, and that she “will never walk or talk or sit up.” She needs care around the clock, breathes supplemental oxygen and is fed through a gastrostomy tube, and her family turned their living room into a medical space. A University of Michigan spokeswoman, Mary Masson, said Michigan Medicine does not comment on pending litigation.

By August 2022 depositions had begun in Alayna’s case, and her parents were getting answers from the university and her treating team. After the Supreme Court’s order, McKeen said, “Ultimately, in both cases, we were vindicated in our right to discovery and to find out what happened and to take the testimony of those responsible.” It was, he said, “to everyone’s advantage to have the truth come out and have the sun shine on what happened.”

A Law Clerk in Judge Anderson’s Courtroom

McKeen found the work while he was a student at Thomas M. Cooley Law School in Lansing, clerking for Judge Robert C. Anderson of the Oakland County Circuit Court. As a clerk he watched trials, medical-malpractice trials among them, and the lawyers who tried them on both sides of the courtroom. “It was such an interesting subject matter and I realized what a tremendous variety of work there was—the issues were rarely exactly the same,” he said in 2014. He has named Bob Zeff and Elbert Hatchett among the trial lawyers he tried to emulate. His favorite film about the law is The Verdict, with Paul Newman.

He earned a business administration and political science degree from Central Michigan University in 1978 and his law degree from Cooley in January 1982, and was admitted to practice in Michigan that year. He founded McKeen & Associates, P.C., and runs it as managing partner from the Penobscot Building in downtown Detroit. He has chaired the American Association for Justice’s Professional Negligence Section and co-chaired its Medical Negligence Exchange Group and its Birth Trauma Litigation Group, and in 2017 he was president of the Michigan Association for Justice.

The cases are expensive to bring. Michigan’s restrictions on expert-witness qualifications mean, he said in 2014, that “you need three experts instead of one,” and fewer lawyers are willing to take on the risk, expense and workload. Some cases run legal bills into the hundreds of thousands of dollars, and his clients almost never have the money to fund them. “If it were not for the contingency system and law firms willing to take on that risk, people would have no hope, no chance,” he said. “It falls upon our shoulders.” Asked in 2017 what would surprise people about his job, he answered: “How many cases we look at and how hard we try to help clients whose cases we must decline because of lack of merit.”

In birth-trauma cases he describes a recovery by what it buys. With a successful outcome, he said, families “can get more therapies for their child, build barrier-free homes, and have equipment for transportation they did not have before.” He has called it one of the biggest regrets of his career that the insurance industry was allowed to propagate what he calls a myth of tort reform: “There was no reform of health care, no reform of doctors providing negligent care—it was just limitations on damages.” In his view, “capping damages only affects the most meritorious cases because those are the ones where you get judgments in excess of the cap.” Asked in May 2014 about the Florida Supreme Court’s decision striking down that state’s cap on wrongful-death noneconomic damages in malpractice cases, he said: “It should be the exclusive province of the jury to determine what an adequate award of damages is if they have found that a medical care provider has provided substandard care that has injured or killed someone.”

By 2020 the firm was also bringing police-brutality suits under 42 U.S.C. § 1983 and cases for prisoners harmed by negligent prison doctors. “It’s important for us to represent and advocate for those who do not have voice,” McKeen said. On malpractice he said that year: “we’re seeing more—not less—of medical malpractice cases because of the lack of hospital administration oversight.”

A Mother Who Kept Bringing Her Daughter Back

The 2001 case against Henry Ford Health System reached McKeen through another attorney “who was having difficulty putting the case together,” as McKeen put it. A young girl had suffered a respiratory arrest and severe brain damage. Her treating physician postulated that she had hypocalcemia from nutritional rickets, which caused a spasm of the airway and cut off her air supply. McKeen’s position was that the child should have been diagnosed with nutritional rickets, as a chest X-ray evidenced.

The defense built its case on unpredictability. “This was something never described in the history of medical literature—a unique event, and the defense tried to portray this as an unforeseeable or unpredictable event,” McKeen said. The defense also told the jury about respiratory syncytial virus, a very common illness in newborns that is not infrequently associated with respiratory arrest, and the defendants maintained that the child’s vital signs had been normal.

McKeen argued that it did not matter whether RSV or rickets caused the arrest. The mother had brought her daughter to the hospital with breathing difficulty, and the staff had sent the child home. When a mother repeatedly brings her child back with complaints of respiratory difficulty, he argued, the child should be admitted. “If they had merely done that, the respiratory arrest probably would have been avoided, or would have been in an environment where the child could have been properly resuscitated,” he said. On November 30, 2001, a Wayne County Circuit Court jury returned its verdict against Henry Ford Health System. McKeen has called the case “certainly one of my career highlights.”

The Nurses’ Independent Judgment in Flint

In another case, a pregnant 21-year-old aerobics instructor came at term to a hospital in Flint complaining of abdominal pain and decreased fetal movement, and was found to have severe hypertension. McKeen’s case was that the defendants failed to diagnose a placental abruption, which he called “the obvious cause that led to the infant’s death.” The mother developed disseminated intravascular coagulation, in which the body uses up its supply of clotting factors trying to stop the bleeding from the abruption. McKeen said the attending physician overlooked it and gave her fluids to support her low blood pressure. After she left the hospital, he said, she arrested and suffered severe anoxic brain damage that left her paraplegic and cortically blind.

The hospital’s defense was that the physician was an independent contractor, an argument that, if accepted, would have kept the hospital from answering for the doctor’s negligence. “There was no question it was the doctor’s fault, but the hospital tried to escape liability by saying the doctor was an independent contractor,” McKeen said. He answered with the hospital’s own nurses. When the patient’s clotting profile showed an obvious problem, he argued, the nurses should have pursued the chain of command. Nurses, he said, “must exercise their own independent professional judgment.” He called what happened to her “a preventable tragedy.”

The case settled before the last two days of trial. McKeen said it was “disappointing to go that far and not let the jury decide,” but he deferred to his client. “When enough money was put on the table so every need this woman could possibly have would be fully met, the client felt—and I support the client’s decision—the time was right to make the settlement so they could go on with their lives,” he said. In 2014 he said, “The ultimate satisfaction is achieving a recovery for the client.”

What Oakwood Heard About Yasser Awaad

Oakwood Healthcare in Dearborn hired Yasser Awaad in 1999 as its first pediatric neurologist. Over nearly a decade his annual salary rose from $185,000 to $300,000, and he could earn bonuses exceeding $200,000 by meeting billing targets. McKeen pointed to warning signs from 2001: that year a parent whose child Awaad had diagnosed with epilepsy received a different diagnosis at another hospital, and a developmental pediatrician reported concerns to administrators. The lawsuits accused Oakwood of ignoring complaints, especially from Dr. Susan Youngs, a physician who was uncomfortable with Awaad’s repeated use of EEG tests and his regular diagnoses of epilepsy in children. McKeen said a pediatric neurology colleague reported Awaad to Oakwood’s administrators in 2003 for ordering unnecessary EEGs and diagnosing epilepsy in children who did not have it, and that the administrators “swept it under the rug.” In March 2007 Awaad’s patients received a letter saying he would no longer practice at Oakwood, and he took a job at King Fahad Medical Center in Saudi Arabia.

Mariah Martinez was 9 when she came to Awaad at Oakwood in 2003 for headaches. She had never had a seizure. He ordered an EEG, diagnosed epilepsy and prescribed Lamictal. “I didn’t know what epilepsy was at that point,” she said. For four years she took anti-seizure medication that made her feel sluggish, was sometimes hooked to a machine that recorded her brain waves, and was told to avoid activities that would raise her heart rate. In 2007 another doctor said her tests were normal. She remembered being withdrawn as a child, and teased by other children, because the epilepsy label limited her physical activities at school. “She was never allowed to have a normal childhood,” McKeen said. “Once I was weaned off medication, my headaches became less frequent, less severe,” Martinez said. In 2019 she said, “I was very angry at first, very angry,” and “I lost, I feel like a piece of my childhood.”

Awaad Under Oath

Her lawsuit was filed in July 2008, when the families sued in Wayne County Circuit Court, naming Awaad, Oakwood, Great Lakes Pediatric Neurology and Oakwood Professional Billing. McKeen and his team came to represent more than 250 of Awaad’s former patients, with co-counsel including Bruce Truex, Anthony Randazzo, Nate Finch, Nancy Savageau and David Dickinson, and McKeen took Awaad’s depositions. In 2014 McKeen said Oakwood had “dodged our efforts to seek the truth and get to the bottom of this debacle.” In 2016 he said more than 2,000 children had been treated by Awaad over about four years, that every child who came through the door was given a series of EEGs, and that 98 percent were diagnosed with epilepsy. The families’ lawyers said children were put through repeated tests, including being kept awake all night so they would be sleep-deprived.

Awaad had kept his license. In 2012 he settled with state regulators over claims that he had unnecessarily given anti-seizure medication to four children, paying a $10,000 fine and accepting probation. He was discharged from probation on August 31, 2015. Days later Beaumont Health, which had merged with Oakwood the year before, hired him at a base salary of $260,000 to develop and teach a pediatric neurology curriculum, under a contract that barred him from clinical work at Beaumont and from identifying himself as a Beaumont clinician. In deposition Awaad confirmed that he had not told Beaumont about the lawsuits. Hospitals are shielded from most discovery requests by medical peer-review protections, McKeen said in 2016, and he did not yet know why Beaumont had hired him. “I cannot come up with any reason why Beaumont Hospital would hire this individual,” he said the next year.

Questioned by McKeen in 2017, Awaad said, “If I made a mistake, I came up with a diagnosis to the best of my ability.” He added: “That’s a different story than intentionally telling them that you have epilepsy and they don’t have epilepsy.” In September 2017 he testified that his contract with Beaumont had ended and that he planned to take a vacation in Egypt and then look for work there. McKeen said the plan “was not shared with us until shortly before he left.” “Therefore we were unable to complete the depositions before his departure,” he said, and the plaintiffs’ lawyers asked the Wayne County court to order Awaad back for more questioning.

The questioning went on in 2018. Awaad’s contract, he had acknowledged under oath, gave him 50 percent of medical billings once he passed a certain threshold. McKeen asked him about the bonus. “As a result of the bonus, you made hundreds of thousands of dollars, didn’t you?” Awaad answered: “I was entitled to.” McKeen called the practice an “EEG mill”: the more tests Awaad ran on children, the more money he made. Awaad had also falsely diagnosed Martinez’s sister with epilepsy, McKeen said, and in another family Awaad was accused of misdiagnosing four of five siblings.

Two Juries in Wayne County

In the fall of 2018 Wayne County Circuit Judge Robert Colombo Jr. called some of the evidence “very damning.” Oakwood asked to be tried separately from Awaad, and the judge refused. “You can’t just look at the malpractice and not consider whether Oakwood should have and could have stopped what was happening,” he said. Awaad and the Oakwood companies asked the Michigan Court of Appeals to review a pretrial ruling immediately; the Court of Appeals denied leave, and on May 15, 2019, the Michigan Supreme Court denied leave as well, saying it was “not persuaded that the questions presented should now be reviewed by this Court.” In a filing before trial, Martinez’s lawyers wrote that Oakwood had been “ecstatic with Dr. Awaad’s suspiciously high productivity because all it cared about was making money.”

Martinez’s case was the first to reach trial. The trial in Wayne County Circuit Court lasted three weeks in 2019. Defense attorney Harry Sherbrook told jurors that the EEG tests were only part of Awaad’s diagnosis, and that Martinez’s daydreaming and zoning out fit it: “Her symptoms were consistent with epilepsy.” He called it “outrageous and preposterous” to claim that Awaad and Oakwood had intentionally harmed her. McKeen focused on Oakwood. Expert testimony, he said, showed that an early investigation would have revealed Awaad was “systematically labeling normal EEGs as showing evidence of seizure activity.” In closing he asked, “How does a hospital in good conscience let that go on?” and called it a “gravy train of fraud.” “Awaad clearly was looking for excuses to order EEGs that his business plan required him to do,” he said.

After the verdict McKeen described the testimony. “The defense experts agreed that Awaad systematically misread EEGs,” he said. “There was no expert testimony that Mariah ever had epilepsy.” Oakwood’s executives, he said, admitted under cross-examination that they had been negligent in failing to investigate another physician’s allegation that Awaad was misdiagnosing children with epilepsy. The evidence, he said, had shown that Awaad labeled 1,751 EEGs on 251 children as showing seizure activity when all of them were normal.

On June 24, 2019, the jury found that Awaad had breached the standard of care and that Oakwood was negligent in hiring and supervising him. Beaumont’s Mark Geary said, “We believe patients were treated appropriately.” McKeen called that statement “a slap in the face to the nine jurors who heard the facts of the case.” Those jurors, he said, had “voted unanimously that Dr. Yasser Awaad and Oakwood Healthcare were negligent.” “I’m definitely satisfied. There’s a big weight off my shoulders,” said Martinez, then 26. “It’s something that has haunted me.”

The second trial, for Claire Linzell, opened that October. She was 4 when she was referred to Awaad in 2005. Awaad reported abnormal brain activity on her electroencephalograms, and she was treated with anti-seizure medication. McKeen said the four tests had been a frightening experience for the girl and that the medicine made her anxious and impaired her learning. The defense again called it outrageous to accuse the doctor of intentional bad acts. While the jury was hearing the case, McKeen said, “I think it’s despicable and deplorable that he would do this to any innocent child, let alone several hundred.” Late on the afternoon of Tuesday, October 29, 2019, the jury returned its verdict for Linzell, then 18. McKeen said the jurors found Awaad negligent, and Oakwood negligent in credentialing him and in failing to supervise him. The verdict, he said, told the community that Oakwood “completely failed to supervise him and allowed him to continue doing that, despite numerous red flags that were raised by a number of physicians including his own office mate.” McKeen won verdicts in both trials.

Allegations Treated as True

In 2018 the Michigan Attorney General’s office filed a complaint against Awaad’s license with the Board of Medicine. It alleged that between 1997 and 2007 he had misdiagnosed approximately 250 patients with epilepsy or seizure disorders on the basis of electroencephalograms that were either not performed or not interpreted properly. Some of those patients, the complaint alleged, had also been misdiagnosed with attention deficit disorder or autistic spectrum conditions; children were given medication that was unnecessary and sometimes harmful, and their actual conditions went unaddressed. The state also accused Awaad of abandoning a 10-year-old patient who needed ongoing monitoring and care, leaving the country, intending not to return, without telling the boy’s parents. “He should never be allowed the opportunity to practice medicine and violate the trust of any other patient,” McKeen said in October 2019.

On May 20, 2020, a disciplinary panel of the Michigan Board of Medicine, meeting by video conference, voted unanimously to approve a settlement and consent order reached with Awaad and the Attorney General. Awaad agreed that the allegations could be treated as true to resolve the complaint. He surrendered his medical license and accepted a $5,000 penalty. Awaad said he had not practiced in Michigan since 2007.

“A great day for patients that was long overdue,” McKeen said of the surrender. “Yasser Awaad betrayed the trust his patients and their families placed in him,” he said. “Knowing that his actions are indefensible he has cowered and chosen to surrender his license rather than face the sanctions he so justly deserves.” About 270 more of Awaad’s former patients, he said, were still waiting on their civil cases. “I feel like it shouldn’t be this hard to go see a doctor,” Mariah Martinez said. Under the order, Awaad’s license can never be renewed, reinstated, reissued or reactivated.