Robert M. Higgins

Boston Children’s Hospital recorded Jackson Kekula’s sleep study on video. When the hospital settled with his parents, Ryan and Becky Kekula, in 2023, it asked for the recording back, and the video was returned to Children’s as part of the agreement. Before it went back, Robert M. Higgins, the Lubin & Meyer partner who represented the Kekulas, watched it and took detailed notes. He set what it showed beside the hospital’s own vital-sign records for the night of February 18, 2022, when the six-month-old was found in cardiac arrest during a car-seat test in the hospital’s sleep lab, and, Higgins said, the two together showed how quickly Jackson began to have problems and how long it took to give him care.

Jackson was born by scheduled caesarean at South Shore Hospital on August 9, 2021, with achondroplasia, the most common form of dwarfism. His parents have achondroplasia as well and belong to the little people community; they had moved to Massachusetts from Milwaukee in 2020 to be near Becky’s relatives, and they lived in Plymouth. In the neonatal intensive care unit, doctors found that he had episodes of sleep apnea, pauses in breathing that pulled his oxygen down while he slept, and he had trouble breathing in a car seat. An ambulance took him to Boston Children’s for a fuller inpatient sleep study in its NICU. In babies with achondroplasia the head is often larger than the small body can hold upright, so it can drop forward and obstruct the airway, and a smaller chest can mean smaller breaths.

Jackson failed his first car-seat test. He went home in a car bed, and his parents were told to keep him lying flat whenever they traveled. At home he used a nasal cannula and a pulse oximeter, and his parents watched his oxygen closely. “We could monitor his mild sleep apnea at home with the plan of a three-month follow-up, once he had a chance to grow his lungs a little, become a bigger baby,” Ryan Kekula said. Jackson gained weight, and from December on he could go without supplemental oxygen for long stretches of the day. Before the family left the NICU, the staff had told them to stay calm when an alarm went off and to focus on their son. “When we got to leave the NICU, that’s what was stressed,” Ryan said.

The follow-up was a car-seat sleep study, part of Jackson’s six-month visit. To ease the family’s nerves, Children’s had given Becky an orientation video that showed a visit to the hospital’s ninth floor and a technician fitting a child with monitoring equipment. “There’s nothing that hurts about a sleep study,” the woman in the video said. Jackson arrived at Children’s around 7 p.m. on February 18, 2022, and the family was redirected to the sixth floor, which Becky remembered as fairly empty. The room had space for one parent, so Ryan planned to spend the night at a nearby hotel. At 9:39 Ryan placed Jackson in the car seat, which sat on the bed, and three minutes later a technician came in and briefly adjusted some of the monitoring gear. Jackson was whimpering and sucking on a pacifier, drifting in and out of sleep, arms and legs moving now and then. His oxygen saturation read 95 to 97 percent, within the normal range.

Thirty-Three Minutes in the Sleep Lab

Higgins traced the decline minute by minute from the video and the vital-sign records. At 9:48 Jackson’s oxygen read 94 to 95 percent. He had begun to fuss, and the number fell quickly: 92, 90, 87, 85, 83. By 9:50 the hospital’s documentation put it at 65 percent. He groaned with each breath. His heart rate, between 88 and 104 beats a minute at 9:50, fell to 40 two minutes later, and the electroencephalogram, Higgins said, was recording abnormal brain waves. The technician did not respond right away.

At 9:52 the video showed the technician coming back into the room and adjusting the pulse oximeter on Jackson’s foot. Within a minute she returned with a second technician; the two talked quietly, took the oximeter off, and put it back on. At 9:55 the second technician restarted the monitoring system at the head of the bed. No one checked on Jackson, by then quiet, to see whether he was breathing normally, Higgins said. By 9:56 he was taking six to eight breaths a minute, against a normal range for a six-month-old of 24 to 64. By 10:03 the monitors on his brain had stopped recording the ordinary bursts of activity, and the tracing had flattened.

Becky Kekula was with her son that night. “I definitely started getting more of a spidey sense of what the heck is happening,” she said. At one point, as the technicians struggled to get a reading, she told them that at home the family wrapped the pulse oximeter around Jackson’s whole foot instead of a single toe. “We’ll try anything,” they answered.

By 10:04 the technicians had unplugged the monitoring equipment from the wall and plugged it back in. The video cut out. When it resumed at 10:06, both technicians were in the room looking, Higgins said, at the wiring and at the pulse oximeter on Jackson’s foot, but not at Jackson. The video showed Jackson’s lips beginning to slacken around the pacifier and change color. Not until 10:11 did a technician look at him; she touched his hand and turned back to the devices. At 10:17 a technician removed his pacifier, and at 10:21 the documentation placed a technician at the bedside, feeling the baby’s foot.

The video cut out again. When it came back, the lights in the sleep lab were on, Jackson was out of the car seat, and the technicians were tapping his chest and legs and urging him to wake up. “Come on. Hello buddy,” they said. It was around 10:25. The hospital’s documentation recorded a button pressed out of the camera’s view, and a nurse looked in. “Is everything all right?” she asked. They told her it was not. She put a hand on Jackson’s back, called a code, and laid him flat for CPR. He was in cardiac arrest. Becky texted Ryan: “you have to come back, he’s not breathing.”

CPR restarted his heart after twenty to thirty minutes, and he went to intensive care on life support. An MRI the next day found severe, irreversible brain injury from the lack of oxygen. A hospital chaplain baptized him. Family and friends came in person or joined over Zoom, and the staff moved Jackson to a bed without rails so that his parents could lie beside him. After twelve days on life support and long talks with his doctors, Ryan and Becky decided to remove it. Jackson died in his mother’s arms on March 2, 2022. The Massachusetts Department of Public Health, which investigated, concluded that he had been without oxygen for over 20 minutes.

“It just seemed off,” Becky Kekula said of the night in the sleep lab. “Of course looking back, I wish we just were like, ‘Can we go home? Do this another time?’ But I still wanted to trust the process.” Afterward she said, “We’re now struggling to grow our family, when we had a perfect boy. There was an accident that could have been prevented.” She had once read a birthday message in which someone promised a child, “I will always protect you.” “But in that moment, there was nothing I could do to protect him,” she said.

What the Technicians Were Looking At

Ryan and Becky Kekula called Higgins the day after Jackson died. He built the claim on what the technicians chose to examine during those minutes. “These techs perceived this as a mechanical problem with the machinery, and so instead of taking him out of the car seat, because he’s clearly failing it, they spent about 20 minutes, 25 minutes, troubleshooting the machines, thinking it was the machines that weren’t working,” he said. Experts retained by the family concluded that the technologists were negligent in failing to recognize that Jackson’s abnormal vital signs were apneic episodes that required taking him out of the car seat at once. Ryan thought the NICU’s advice may have been missed that night, “with so much focus on the equipment and not enough focus on the patient.”

Dr. Larry Rhein, a neonatologist and pediatric pulmonologist who chairs pediatrics at UMass Memorial Medical Center, declined to discuss Jackson’s study but said that monitoring equipment often gives faulty readings. “Small things can make it go off [without a real reason],” he said. Stopping a test over what may be a loose probe, he said, can mean months more of oxygen at home before a retest. “It isn’t inappropriate to focus on the technology issues first, if the child is well appearing,” Rhein said. He also said that clinicians should check the baby before the monitor. In Higgins’s account of the video, the baby in the car seat had groaned with each breath, gone quiet, slowed to six to eight breaths a minute, and begun to change color around the lips while the technicians worked on the wiring.

Children’s apologized. “We express our deepest condolences and apologize to the family for the loss of their son,” the hospital said. “Following this incident, we immediately stopped all sleep studies and began a thorough review of what occurred.” The hospital pointed to its record and to safeguards it already had. Dr. Sara Toomey, its chief safety and quality officer, said that, apart from Jackson’s study, the hospital had never had a serious adverse event in a sleep study, and independent pediatric sleep experts said it was incredibly rare for an elective sleep study to end in a child’s death. “We had these components in place prior,” Toomey said, “but this really made us stop and do a thorough review to make sure we could strengthen absolutely every aspect.”

A Notice Letter, a Mediation, and a Settlement Before Suit

Massachusetts bars a malpractice suit against a health-care provider until the provider has had 182 days’ written notice of the claim. The notice must state the facts, the standard of care, how the provider breached it, what should have been done instead, and how the breach caused the injury, and within 150 days the provider must answer in writing with its own account of the facts, the standard of care and causation. Higgins sent Children’s a notice of a potential malpractice and wrongful-death claim on June 15, 2022, about three and a half months after Jackson died.

The parties mediated the claim, and shortly after the mediation, before any lawsuit was filed, Children’s agreed to pay $15 million. The settlement came in April 2023. Higgins handled the claim with his Lubin & Meyer colleague Andrew C. Meyer Jr., who said the aim was closure for the family and also “to have the hospital change its policies and procedures to make sure that nobody else gets harmed.”

The Kekulas declined to sign a nondisclosure agreement. They wanted to be free to tell other parents about the risks of a procedure many assume is benign, and as parents with achondroplasia they hoped Jackson’s death would change how car-seat tests and sleep studies are run and how closely they are watched. “There are a lot of families [in the little people community] that go to that place,” Becky Kekula said. “I can’t say what to do or not to do. But it’s important for them to know what happened.”

Children’s suspended its inpatient and outpatient sleep studies for about five weeks. It then put its technologists through training and simulation exercises and had a nurse evaluate their skills, revised the responsibilities of the sleep-lab team, improved the documentation of doctors’ orders for sleep studies, changed the triage of those orders to assess risk to each patient, and assigned nurses to oversee patients during studies. It brought the studies back in phases. Its staff of sleep technicians grew from 15 before Jackson’s death to 22.

“I keep telling people, Year 2 is harder than Year 1,” Becky Kekula said that spring, after the settlement. “I think now that it is settled, there’s still a big hole because we’d much rather have him here than any amount of money.”

Delays in Diagnosis, Explained to Fourth-Year Harvard Medical Students

Higgins joined Lubin & Meyer in 1994, the year he graduated from Suffolk University Law School, three years after finishing at the University of Maine, and he became a partner in 2001. He is licensed in the state and federal courts of Massachusetts. His cases are claims against hospitals and physicians for missed and delayed diagnoses of cancer, infection, and heart disease, for injuries during childbirth and to newborns, and for deaths after surgery. He lectures for Massachusetts Continuing Legal Education, the Massachusetts Academy of Trial Attorneys, and Suffolk Law School, comments on malpractice cases and jury trials for local news stations, and serves on the board of the Jett Foundation, which supports muscular dystrophy awareness and research, and on the board of trustees of Boston College High School.

At the invitation of Harvard Medical School faculty, Higgins spoke to fourth-year medical students about informed consent, accountability, the dangers of delayed diagnosis, and the systems-based practices that protect patients. “As medical malpractice lawyers, we see the issues that impact care,” he said. “Breakdowns in communication. Failure to follow established protocols. Delays in diagnosis. We see recurring patterns behind preventable patient harm.” “By showing medical students how to recognize these vulnerabilities early,” he said, “they are better equipped to offer safer care as doctors.”

Twins, an Induction, and a Labor Nurse Who Kept Raising the Medication

In a birth-injury claim Higgins settled for $7 million in 2024, the mother was pregnant for the first time, with full-term twins, and had been brought in to be induced. As the day went on, one twin’s heart rate began to show problems. “There are no accelerations and there starts to be drops in the baby’s heartrate called decelerations,” Higgins said. “These were all going on during the afternoon and into the evening.” The labor nurse, a midwife, kept raising the medication used to induce labor. “Instead of recognizing it and alerting an obstetrician to it, she just kept increasing the medication,” he said. “Essentially, what she is doing is increasing the contractions on a baby that is already having difficulty with the contractions as it is.”

The defense said there had been no negligence and that no problems had emerged until the end of the labor. A caesarean was eventually performed. “These babies are full term,” Higgins said. “No reason not to deliver them.” “That’s what they did,” he said, “but it was just too late.” The baby was deprived of oxygen, needed resuscitation after birth, and suffered a substantial brain injury; the other twin showed no distress and was born without problems. The medical facility was not sued. “In this situation, this midwife needed to know when she was in over her head and get an obstetrician in there,” Higgins said. “Providers need to understand that it is okay to ask for help.” Of the twins he said, “It is sad when they both should have had the same opportunity to be born without injury.”

Pitocin Instead of a Caesarean at Saints Memorial

Delay was the negligence a Middlesex County jury found in 2005, in the case of a boy born nearly nine years earlier at Saints Memorial Medical Center in Lowell. After some testing, Lisa Antonelli of Dracut had been sent home with instructions to return in a week. She went to Saints Memorial around 9 p.m. on November 7, 1996, because she could not feel the baby moving. She was 38 weeks pregnant, at full term, and not in labor. The obstetrician on call was Dr. Jacqueline Halladay, who had finished her residency that June and joined a medical practice in August; she was three months into her first job as a doctor. Halladay ran two tests that, Higgins said, found the fetus in distress. The fetal monitor gave non-reassuring results, and the baby made no movement for a total of 45 minutes.

Higgins’s case was that by 1:30 a.m. the fetus was being deprived of oxygen and Halladay should have ordered an emergency caesarean. She gave Antonelli Pitocin instead, to bring on contractions for a vaginal delivery. At 3:40 a.m. the fetal heart rate slowed to a dangerous level, and Halladay ordered a caesarean, but the operation did not take place until 7:05 a.m. because, Higgins said, she still did not regard it as an emergency. At trial Halladay said she had been waiting for additional staff to arrive. She testified that she went into another room in the interval, and at one point, Higgins said after the verdict, she “most likely went to sleep.” Lisa Antonelli said after the verdict, “We thought it was wrong that she wasn’t taking him right away. We didn’t understand why they were waiting.”

Twenty minutes after Philip Antonelli Jr. was born, Higgins said, he had a seizure. He was placed in an incubator and transferred to New England Medical Center for treatment of massive bleeding in the brain, which probably resulted from a lack of oxygen.

Halladay’s lawyer, Kenneth D. Weiss, told Middlesex Superior Court in a pretrial memorandum that Halladay had done nothing wrong in the delivery and could have done nothing to prevent the injuries. The second half of that position went to causation: a jury that accepted it could fault the timing and still conclude that an earlier caesarean would not have spared Philip. Saints Memorial was not a defendant. Higgins represented the Antonellis at trial, where Lisa Antonelli and her husband, Philip, both testified.

Halladay on the Stand

Expert witnesses for the Antonellis testified that an emergency caesarean had been needed. Higgins later said the trial turned “when the defendant took the stand. Until that point it had been expert witnesses, but my best witness was the defendant.” Halladay, he said, came across “as extremely inexperienced [making] some strange comments on the stand about her ability.” He recalled one answer: “She said to me, ‘You wouldn’t understand, it’s my gift to take care of babies.’” In his view, she “didn’t give the jury a reason to believe she had done anything right.”

The Middlesex Verdict and the Agreement Made During Deliberations

On August 17, 2005, after about six and a half hours of deliberation, the jury found Halladay negligent for having waited longer than five hours to deliver Philip by caesarean despite signs of severe fetal distress. The jury’s award was $23.4 million. Massachusetts law directs the clerk to add interest at 12 percent a year to personal-injury damages from the date the action was filed, and with that interest the award came to nearly $40 million. Higgins attributed the size of the verdict to the severity of Philip’s injuries and the care he would need for the rest of his life. “This is a child that, statistically, is going to live another 70 years in a devastated situation,” he said. “The jury recognizes this very severe injury.”

Philip was 8 at the verdict. He had cerebral palsy and functioned at the level of a 2- to 4-year-old. He needed help dressing and showering, and generally only his parents could understand his speech. He walked with braces and a wobbly gait, had no control over his right hand, and had a shunt in his head to drain fluid. That fall he was entering the third grade at a Dracut elementary school. His mother said that socially he excelled. “He’s a happy guy and gets everybody to love him,” she said.

While the jury was out, Higgins said, lawyers for both sides agreed that if the jury sided with the Antonellis, Halladay would be liable only for the maximum covered by her malpractice insurance policy, a sum both sides agreed not to disclose. Under that agreement the family would receive less than the jury’s figure, and the verdict could not be appealed. The verdict was paid subject to that high-low agreement.

Lisa Antonelli, 41, attributed Halladay’s decisions to inexperience. “I don’t think that she intentionally did this,” she said. “But unfortunately, back then, she was [in a position] above her qualifications.” Of the verdict she said, “We feel pretty much validated. All this time, we thought that things had been wrong [with] the quality of care that we received. And now we know that’s the case.” She said that she and her husband, a loan officer for a mortgage company, who also had a 5-year-old daughter, Molly, hoped the verdict would mean Philip could get the care he needed after they died. “The reason we did this was to make sure he would be taken care of, no matter what happens to us,” she said.