The parents of a 1-year-old Cambridge girl who died in 2013 after sudden catastrophic brain swelling and bleeding filed a wrongful death suit Thursday against the child’s nanny, five months after prosecutors dropped murder charges against her.
In the lawsuit filed in Middlesex County Superior Court, the couple maintain that Aisling Brady McCarthy, who has since returned to her native Ireland, is responsible for the death of their first-born child, Rehma Sabir, due to her “negligent, malicious, willful, wanton, reckless and/or grossly negligent acts.”
The parents told the Globe that their main motivation in filing the case is to ensure that the nanny does not make money off their child’s death, through such ventures as book deals or movie contracts. The couple, Sameer Sabir and Nada Siddiqui, said this lawsuit is their only legal mechanism to accomplish this.
“Sameer and I want to emphasize that our purpose in filing this suit is to prevent Aisling McCarthy from profiting from our daughter’s death,” said the child’s mother, Siddiqui, in a brief telephone interview. “We lost our beautiful little girl in very difficult circumstances, and feel compelled to bring this suit to protect her memory.”
The mother’s words – and the lawsuit – represent the couple’s first major public statements about the case since their daughter died two days after being rushed to the emergency room at Boston Children’s Hospital on Jan. 14, 2013. The couple, who have had two sons since Rehma died, said they wish to remain out of the public spotlight. Siddiqui declined to elaborate further on the lawsuit, saying, “We respectfully request privacy and we defer any questions to our attorney.”
In a case that drew international attention, the charges against McCarthy were dropped in late August after the medical examiner in the case, citing additional medical evidence from the defense, changed the cause of Rehma’s death from a homicide to “undetermined.” Murder was not ruled out completely as a possible cause, but Middlesex County prosecutors said the medical examiner’s new views made it unlikely they could prove murder charges beyond a reasonable doubt.
One of McCarthy’s attorneys in the criminal case, Melinda Thompson, said Thursday that the lawsuit is “shocking and disturbing” and that the parents are “compounding the tragedy” of the girl’s death by filing this lawsuit against their former nanny who is trying to rebuild her life in Ireland.
“To sue someone for money, for someone who is literally trying to get back on her feet, it’s shocking,” said Thompson.
Thompson reiterated the defense view that medical evidence showed Rehma may have had pre-existing medical issues contributing to her death, and that McCarthy is not responsible. Thompson described McCarthy as being “exonerated” for the crimes.
She acknowledged having some confidential negotiations related to this civil case with the couple’s lawyer as far back as December, though it was not with the couple’s current attorney, Jonathan Friedmann, who is with the Boston law firm Rudolph Friedmann. She would not say what the discussions were about.
Friedmann said the couple has maintained that they would drop the lawsuit if McCarthy signed an agreement not to profit from Rehma’s death, and would not even insist that she sign an admission of culpability.
Friedmann said the couple went exhaustively through all the evidence, as well as the defense’s reports, and concluded that the medical examiner had it right the first time – that Rehma was the victim of abusive head trauma, often known as shaken-baby syndrome. It is a diagnosis typically associated with blunt force trauma or excessive shaking, often by caregivers frustrated with a crying infant or toddler.
“We believe not only that she was negligent but that she was liable for the death,’’ said Friedmann.
Friedmann emphasized the couple is not focused on gaining money, but having a way to prevent McCarthy, who had been Rehma’s nanny for about six months, from profiting from Rehma’s death. The lawsuit refers to the couple seeking at least $25,000 in damages, the minimum amount that must be sought by plaintiffs to file a wrongful death case in Superior Court.
“There is reason for us to be concerned that the defendant intends to profit from the baby’s death while professing publicly to be grieving over it,” Friedmann said.
Wrongful death cases in Massachusetts have to be filed within three years of the death, which would have established Jan. 16, 2016 as the deadline for filing this lawsuit. This case comes about a month after that, but Friedmann said the lawsuit was filed in a “timely manner” because the two sides had agreed on an extension of the statute of limitations.
The case, which is filed by Rehma’s father, who is acting as the personal representative of his daughter’s estate, refers to medical records from Children’s Hospital, including MRI and CT scan results that showed traumatic brain injuries. They said that the hospital’s child protection team “diagnosed Rehma as the victim of abusive head trauma, consistent with violent shaking and the violent slamming of Rehma’s rear end on a hard surface.”
“Upon information and belief, after becoming frustrated with Rehma’s crying, McCarthy intentionally slammed Rehma on the changing table and shook her so violently as to cause the traumatic injuries, including brain swelling, skeletal fractures, hemorrhaging, and herniation, that resulted in Rehma’s death,” the lawsuit says.
The lawsuit said that Rehma appeared normal the morning of Jan. 14, 2013, before her parents left for work. The father works as a life sciences entrepreneur, and the mother was then working at Google. Before the mother left for work around 9:30 a.m., Rehma was eating and playing with toys, and was in the exclusive care of McCarthy for about seven hours prior to her lapsing into unconsciousness.
According to the lawsuit, the child’s grandmother visited in the late afternoon and showed concern that Rehma had been napping for such a long time. When McCarthy attempted to pick up Rehma in the presence of the grandmother, the child was “unresponsive and unconscious.” Soon, Rehma was rushed to the hospital, and within two days was declared brain dead.
Police later also found “signs of violence” in the family’s Harvard Square apartment, including a “chunk of dry wall and plaster” missing near Rehma’s changing table, which was “consistent with forceful impact by the corner of the changing table,” according to the lawsuit. Also, it said DNA testing by state police identified Rehma’s blood on some wipes, towels, a pillowcase, blanket and clothes.
McCarthy, who had been living in the United States illegally since she arrived in 2002 as a visitor, was forced to leave the United States soon after her charges were dropped. She has been back in Ireland, and apparently thinking of initiating litigation herself.
In an interview with the Globe published last month, McCarthy said she is trying to move on with her life, but finding it difficult to find work. She said she intends to use the civil courts to expose what happened to her in her criminal case, and raised the possibility of suing Dr. Alice Newton, the former head of child protection at Boston Children’s Hospital, as well as prosecutors in the case who she says withheld exculpatory evidence.
In the couple’s lawsuit against the nanny, the lawyer said the next step is for them to legally serve her the civil complaint at her location in Ireland. McCarthy’s attorney in the criminal case, Thompson, said she will not accept service on behalf of McCarthy in this wrongful death case.
In a wrongful death suit, a jury has to find that a “preponderance” of evidence points to guilt, not the higher criminal standard of proof beyond a reasonable doubt.
During the pretrial hearings in the criminal case, prosecutors depicted Rehma as a basically healthy energetic child who had no condition making her vulnerable to sudden death. But McCarthy’s defense lawyers had depicted Rehma as struggling with a number of medical conditions, and asserted that some could be life threatening under certain circumstances. Among them, they said, Rehma had been tested at Children’s a month before her death for a bleeding condition called von Willebrand disease, and said the parents had told doctors that Rehma bruised easily.
The lawyer for Rehma’s parents said they hope the civil case will expose the truth and also help clarify “misleading and inaccurate theories that have been bantered about publicly” in this case.
He said one of the issues is about some of Rehma’s old bone fractures, which have been frequently cited by the defense as exculpatory.
In pretrial hearings, the defense repeatedly cited the government’s expert, Dr. Andrew Rosenberg of the University of Miami Miller School of Medicine, as saying the old fractures likely occurred during a time period – roughly a two-week period in the middle of December 2012, a month before the girl died -- when the child was not being cared for by the nanny, but traveling abroad with her mother, visiting relatives. The defense has pointed to the judge in the case as affirming that understanding of Rosenberg’s report.
However, the lawyer said the defense portrayal of the fractures is inaccurate. In Rosenberg’s most recent report from August, which the Globe confirmed in a separate interview with the expert, he gives a time frame that places the fractures as likely occurring in the first two weeks of December, which includes some days that the child spent with McCarthy, as well as some days traveling with her mother abroad.
In the interview, Rosenberg said the fractures could possibly have occurred in an even wider time frame because dating fractures is an imprecise science.
Thompson, the attorney who had represented the nanny, said Thursday that Rosenberg’s multiple reports over time were confusing, and she is skeptical about why later revisions seemed more favorable to the prosecution.
The medical evidence in the case has been highly contentious. The criminal prosecution fell apart at the end of late August when the medical examiner, Dr. Katherine Lindstrom, who had originally declared that Rehma died of abusive head trauma, said she was no longer sure. She wrote last August about a new possibility that Rehma had “some type of disorder that was not able to be completely diagnosed prior to her death,” and she cites von Williebrand disease. She also said the girl’s death could have been “related to an accidental injury in a child with a bleeding risk or possibly could have been a result of an undefined natural disease.”
The lawsuit comes at a time when shaken-baby syndrome has become an intense and emotionally-charged national controversy. A number of cases have been reversed, as defense lawyers, supported by some pathologists and medical specialists, say shaken-baby syndrome is often mis-used against innocent individuals. The medical establishment, meanwhile, has pushed back, with the American Academy of Pediatrics speaking out loudly in defense of this child-abuse diagnosis as highly valid when applied appropriately. They say it’s a critical way to identify horrific child abuse and ignoring it risks letting callous killers go free.
The controversy has intensified in Massachusetts as well. About two months ago, the state’s highest court heard two appeals involving shaken-baby syndrome. The case involving McCarthy was the second time in the past two years that the medical examiner’s office, having once attributed a death to abusive head trauma, later revised their findings to undetermined.
Patricia Wen can be reached at Patricia.Wen@globe.com.