The question of whether a baby was conscious and felt pain and suffering during and after delivery is at the heart of a lawsuit going to jury trial in Rooks County in March.

Derek and Mireya Stiles, Hays, brought the suit in October 2018 after their full-term baby, Eli, died after delivery on Aug. 20, 2016 at Rooks County Health Center in Plainville.

Chief Judge Glenn Braun for the 23rd Judicial District on Thursday morning heard arguments on the question from attorneys on both sides in his courtroom in the Ellis County Courthouse on 12th Street.

At Thursday’s hearing, Braun told the attorneys and the Stiles, “The court really struggled with the blending of pain and suffering and consciousness,” he said, while noting that Kansas law is clear in requiring “conscious pain and suffering.”

“What is consciousness?” Braun asked. “Is it a legal determination for a court, or one for a jury?”

The question is one of many motions brought by the attorneys, who are asking Braun to decide some matters in advance of the trial.

The jury trial starts Monday, March 23 in Stockton at the Rooks County Courthouse and is scheduled for two weeks.

John T. Bird and Todd D. Powell of Glassman Bird Powell LLP, Hays, filed the lawsuit in Rooks County District Court and represent the Stiles.

David Wooding and Matthew Spahn of Martin Pringle Oliver Wallace & Bauer LLP, Wichita, and Dustin Denning, Salina, represent the hospital and Beth Oller, the physician named in the lawsuit.

After hearing lengthy arguments from both sides, Braun invited the attorneys to supplement their courtroom arguments further with case law on consciousness.

“I would appreciate it,” he said. “There might be some guidance out there.”

Spahn, the attorney for RCHC and Oller, asked Braun to eliminate the claim for Eli’s pain and suffering saying their case lacks a medical expert’s testimony that the baby was conscious.

“No one is going to come in here and argue that baby Eli wasn’t alive,” Spahn said of Eli’s state during a vacuum assisted delivery, a procedure in which a vacuum pump is applied to a baby’s head to aid delivery. “But was he conscious?”

“The question here,” said Spahn, “is whether or not that from 1:30 a.m. to 1:57 a.m., when the vacuum was applied, was there any evidence that baby Eli was conscious? Our contention is that it requires an expert opinion.”

Powell, however, argued that the question of consciousness is one that people on a jury are qualified to decide, as has been done in other cases.

Not allowing the jury to do so would “overturn legions of case law,” Powell said.

“The state of Kansas has already said that expert testimony is not needed,” he said.

Bur Spahn said other pain and suffering cases were more cut and dried, involving the elderly in nursing homes, or slip and fall accidents, and car wrecks.

“This is an interesting case,” he said, because it deals with the pain and suffering of an unborn baby. Further, he argued, there are no facts to establish consciousness from the time of Eli’s birth to death.

“This is an issue that requires expert testimony,” Spahn said. “They don’t have that testimony, so the claim can’t move forward.”

Spahn said some medical doctors believe babies in the womb are conscious, while others don’t.

“Nobody remembers whether they were conscious or not in the womb,” he said, remarking that his own wife is nine months pregnant and that he understands that a push on the belly can elicit a reaction. But only a medical expert can determine if Eli was conscious, he argued, and the parents’ case does not have a medical expert saying that specifically.

“That’s the end of the conscious pain and suffering claim right there,” he said.

Powell disagreed with Spahn’s argument that pain and suffering are relevant only during the actual vacuum suctioning.

He said the parents’ case includes testimony from a physician that Eli would have been born normal, healthy and viable had he not been injured during delivery, and that the mechanics of the injury would have been painful.

Juries have decided consciousness in other cases, he said, and Spahn hasn’t cited any case law supporting his argument.

“I don’t think the rules should change,” Powell said. “This was a couple hours of birth of a full-term baby.”

The lawsuit says Eli Stiles was born after 16 hours of labor, then died 13 hours later after being transferred to Wesley Medical Center in Wichita.

The Stiles brought the lawsuit against the board of trustees of Plainville Rural Hospital District No. 1, a Kansas Rural Hospital District that operates the Rooks County Health Center, 1210 N. Washington in Plainville, and Oller, Stockton, a licensed family medicine physician.

In the suit, the Stiles claim Eli died as a result of injuries caused by multiple failed vacuum suction attempts with multiple vacuum devices. They say in the suit that a qualified doctor should have been made available to perform a cesarean section in emergency circumstances.

The Stiles are seeking damages of $10 million for wrongful death and $500,000 for injuries the Stiles’ say Mireya sustained from the delivery.

In his comments Thursday in the courtroom, Braun said there isn’t a lot of guidance from the appellate courts on the consciousness question. He also referenced the debate raging in the Kansas Legislature and in other states over the controversial practice of late-term abortion and whether a baby or fetus being dismembered feels pain.

“I can’t ignore that that is out there,” Braun said. “The Legislature wants to determine as a matter of law … that a fetus is experiencing pain and suffering.”

Then the question is one of whether the baby or fetus is conscious and aware of that pain and suffering, Braun said.

“I looked up the definition of conscious,” he said. “One definition was awake, aware and responding.”

Regarding another motion, Wooding argued against the Stiles using a physician from Philadelphia as an expert witness to testify about the normal standard of care for a vacuum-assisted delivery.

Wooding asked Braun to disallow the testimony, saying the Philadelphia doctor is a paid expert from an urban hospital back east who hasn’t assisted with a birth in more than a decade, and who doesn’t understand how hard it is to get a physician to locate to rural Kansas, and doesn’t understand a rural family practice.

“He has no clue what it’s like to practice in Rooks County,” said Wooding. “It’s inherently unfair to allow this person from Philadelphia to come to Rooks County and say how a Rooks County physician should deliver a baby.”

“Where are you from?” Braun asked Wooding.

“Wichita,” Wooding replied.

“In rural Kansas, that’s a big city,” Braun said. “Is it fundamentally unfair for you to represent a doctor from rural Kansas?”

Braun ruled he would allow the physician to testify at the trial.

A continuance of the pretrial hearing is set for March 18 when Braun is expected to have rulings on the motions, which he referred to as a “voluminous file” on issues ranging from standard of care in a vacuum assisted delivery, the hiring and training and supervising of the hospital’s nursting staff, to whether parents have a reasonable expectation a child will provide support in the future.