- Associated Press - Friday, January 31, 2014

OMAHA, Neb. (AP) - A former day care operator cleared of charges in the death of a baby in her care deserves to have her lawsuit against a pathologist in the case heard by a jury, the Nebraska Supreme Court ruled Friday.

It was the second time the state’s high court has reversed a lower court ruling dismissing the lawsuit.

Carla McKinney, who ran a state-licensed day care at her Lincoln home, filed a lawsuit against Dr. Matthias Okoye more than a year after prosecutors dropped charges against her in the 2007 death of 4-month-old Chase Madsen.

Okoye, who was under contract with Lancaster County, performed the autopsy on the baby for the state. He told law enforcement authorities that the boy died from blunt-force trauma to the head, asphyxia and bleeding on the brain as a result of child abuse, leading police to arrest McKinney.

McKinney maintained that she never abused the baby, and that she had tried in vain to wake the infant from his nap and revive him on Oct. 17, 2007. Paramedics also failed to revive the boy.

Two pathologists hired by McKinney’s defense attorney disagreed with Okoye’s conclusions and found the infant had died of sudden infant death syndrome. Prosecutors later dropped the charge against McKinney, saying there was not enough evidence to prosecute her.

McKinney sued Okoye and his corporation, Nebraska Forensic Medical Services, seeking nearly $275,000. The lawsuit said Okoye’s allegations were made “carelessly and maliciously without regard to the scientific and medical evidence available.”

In 2010, Lancaster County District Judge Paul Merritt Jr. dismissed McKinney’s lawsuit, saying state law protecting the doctor allows him to make such decisions without the threat of being sued. But the Nebraska Supreme Court disagreed and reversed that ruling in 2011, sending the case back to the lower court.

Last February, Merritt again found in favor of Okoye, finding that no evidence had been presented from which a jury could conclude that Okoye knowingly provided the county attorney’s office with false or misleading information with the intent to maliciously prosecute McKinney.

McKinney again appealed.

On Friday, the Nebraska Supreme Court found Merritt was wrong to grant Okoye’s summary judgment request, saying “McKinney presented evidence that Okoye acted far afield of mere negligence.”

“A reasonable fact finder could infer that Okoye knew or should have known that the statements he made regarding his autopsy and the findings of said autopsy were false or misleading,” Nebraska Supreme Court Judge Michael McCormack wrote in the opinion.

An attorney for Okoye, James Snowden of Lincoln, said Friday that he and his client were disappointed in the decision.

Dr. Okoye … is looking forward to defending his work and his good name, and he stands by his autopsy findings and looks forward to demonstrating the veracity of those findings and his lack of any bias in his work at trial, if need be,” Snowden said.

McKinney’s attorney, George Moyer of Madison, said he’s happy his client will finally get a trial on her lawsuit.

“Now, after three years, the real work can begin,” he said.


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