HIV lawsuit is too late, MCG attorneys argue

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ATLANTA - The family of a boy who contracted HIV from a 1985 blood transfusion at Medical College of Georgia Hospital and whose condition went undiagnosed for many years shouldn't be allowed to proceed with a malpractice lawsuit, attorneys argued Tuesday.

The statute of limitations has long since expired, argued Bryan Dorsey, who represented MCG Health Inc. and two physicians in front of the Georgia Supreme Court.

The court is being asked to overturn a Georgia Court of Appeals decision that would allow Derek Canas, now 22, and his family to sue because he continued to show new pediatric AIDS symptoms as he grew older and the continuing misdiagnosis amounted to negligence.

State law gives patients five years after a negligent or wrongful act, such as a misdiagnosis, to file a lawsuit, whether or not they knew anything was wrong at the time. In the case of an injury, there is a two-year statute of limitation.

The test determining Mr. Canas was HIV-positive came seven years after both sides agreed doctors first should have realized Mr. Canas' numerous respiratory and infection problems could be serious enough to warrant more tests.

That was clearly past the allowed time limit to file a claim, Mr. Dorsey said.

However, Robert Persons, who represents the Canas family, said the Court of Appeals was right to rule that as Mr. Canas' symptoms changed and became worse over the years, the physicians' negligence continued beyond just the first time they misdiagnosed his condition.

"You cannot abide the notion that a doctor over an eight-to-10 year period is negligent one time," Mr. Persons argued Tuesday.

Mr. Canas was born with a rare heart defect and received blood transfusions at MCG while undergoing heart surgery as an infant. In 1985, when Mr. Canas received the blood, MCG's blood bank had not yet started screening for HIV.

Sharon Kaminer, a former pediatric cardiologist at MCG, and Ayman Al-Jabi, a Brunswick pediatrician, both saw Mr. Canas routinely as he was growing up and attributed most of his ailments to childhood colds and his heart condition.

The justices did not indicate Tuesday when they would issue a ruling.

Reach Vicky Eckenrode at (678) 977-4601 or vicky.eckenrode@morris.com.

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pantherluvcik
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pantherluvcik 05/16/07 - 06:55 am
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MCG should be ashamed, they

MCG should be ashamed, they should offer this guy an outrageous settlement. It was their responsibilty to be sure the blood they gave him was not tainted.

BMW37
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BMW37 05/16/07 - 08:23 am
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This is so terrible that this

This is so terrible that this hospital would just ignore their wrongdoing by taking away this young man life.

wise
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wise 05/16/07 - 08:28 am
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I agree pantherluvcik. There

I agree pantherluvcik. There should be no need for a law suit. MCG should just give this kid what ever he wants. They are the ones responible for his life of illnesses.

bleudoor
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bleudoor 05/16/07 - 10:32 am
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It's very hard. Obviously,

It's very hard. Obviously, this is a result of the state of the world back then....no one knew to screen for HIV or really much about AIDS at all. Complicating this is the fact that it sounds like some of his symptoms could be attributed to the fact that he had a heart problem. I feel for the family, but this is a tough one. The question is, were the MCG and Brunswick doctors negligent, criminally, deliberately so? Considering the time and circumstances, I'm not sure.

CoastalDawg
125
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CoastalDawg 05/17/07 - 10:00 am
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Everyone is "suit happy" now,

Everyone is "suit happy" now, attempting to blame organizations or individuals for things over which they had absolutely no control or knowledge, nor even a reasonable responsibility. It is unfortunate that this young man contracted AIDS through a transfusion @ MCG, IF that is indeed the case. Has any proof of that even been made? If that IS the case, what about the person who donated the blood, the Red Cross or whomever supplied it to the hospital? Just like with Katrina, an unprecendented event or series of events occurred here and it would appear that the hospital and the doctors involved used all the known and usual precautions in helping keep this young man alive. Are we now to expect persons in charge to have some supernatural understanding of what MIGHT happen and to act upon that "instinct"? Even now we're learning that transplant victims are developing diseases from tissues which their bodies have received from donors. Who is to blame for that? Sorry, but when reasonable precaution has been taken in diagnosis and treatment, it would seem that the family would be thanking those people for prolonging a life which most likely would have been shortened.

lawdogg33
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lawdogg33 05/17/07 - 10:04 am
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All I can say is that they

All I can say is that they are looking at those "deep pockets" and the issue is not really "how" he got it, but how much he can get.

bolluck
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bolluck 05/17/07 - 10:49 am
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whatever the case, he still

whatever the case, he still has hiv and mcg is responsible. whether 2 years or 20 MCG is still responsible.

CATLOVER
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CATLOVER 05/17/07 - 11:06 am
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okay klunkers--if a test was

okay klunkers--if a test was not available in 1985, how can someone predict it was going to be tainted. just as with hepatitis c-it's a doggone virus!! it depends on the person's immune system as to whether the body can fight it off.Get real-medicine is not perfect, neither are the people who practice it. I wish it were, but it's not. The young man should be glad he's still alive.
The body is painless in death, it's this world we live in that causes so much pain. His parents should feel lucky too. God has a plan for everyone. We just have to learn to live in the day, and not try to predict the future. If that were possible what a
perfect world this would be.

mom2
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mom2 05/17/07 - 11:45 am
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Momacat have you lost your

Momacat have you lost your mind, this boy should be lucky that he is alive??? And lived a life filled with sickness and hospital stays and been given a death sentence from a hospital that wasn't even competent enough to diagnois their mistake after they gave him HIV. The hospital and these doctors should be ashamed of theirselves, what if this was your child that this had happened to, put yourself in this family's shoes. It is unexcuseable that he went undiagnoised for all those years, was the hospital trying to cover this up and just thought he would just die anyway and they would say it was his heart again?? I feel for this young man his whole life has been ruined by MCG and it's poor excuse of doctors.

MomToBe
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MomToBe 05/17/07 - 03:32 pm
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There is proven cases where a

There is proven cases where a person who has HIV as a child and received correct diagnosis and treatment could grow to live a completely normal live without developing full-blown AIDS. This young man never had this chance because the doctors did not do more testing. My mom had a blood transfusion and was told within the following few years to be tested because of the time frame. Why didn't this doctor know to test this child because of the time frame of his blood transfusion and his worsening condition? The answer is he should have Known! Yes this world is very law suit happy but why should the ones who deserve to receive payment not get it because of the people in this world who spill coffee on themselves and sue for it! Think about the expenses him and his family have already went through for this horrible experience not to mention the price of a normal life! Don’t you think he would give ANYTHING to have a normal life and a normal family! I think he would. This article is also dealing with the statute of limitations. The statute had already begun to expire before he was even diagnosed correctly! Put yourself in their shoes wouldn’t you do the same thing for your son? I Would!!

nicohellet
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nicohellet 05/17/07 - 07:38 pm
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MCG really needs to start

MCG really needs to start taking responsibility for their actions. Late last year I went to the emergency room for back pains and the doctor that "so-called" did an examination said I had a sprained muscle in my back and gave me a prescription for a muscle relaxer. The next day, I was still in pain and I decided to go to St Joseph Hospital. I went to the emergency room and they took blood and ran a few test and found that I had to get my gall bladder removed b/c I had a lot of gall stones. What if something would have happened to me between that one day??? MCG missed diagnosed me, but thank God to St Joseph they found out what the problem was. MCG need to be careful with peoples lives. I sympathize with this family.

Edward1968
578
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Edward1968 05/18/07 - 11:46 am
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I find it hard to believe

I find it hard to believe that in 1985 blood was not screened for HIV. Also, why did it take so long to finally test for HIV? How many other test did not get performed?

mom2
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mom2 05/18/07 - 12:02 pm
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That's what I would like to

That's what I would like to know, what is MCG's excuse for never testing this child, everybody knows that the CDC notified all the hospitals of the need to notify all patients that had received blood transfusions prior to 1986 to be tested for HIV, I would love to know what excuse MCG gave for never testing and is this the only person they neglected to test, and if so was there a reason they never tested this child, maybe they knew what the outcome would be and wanted to avoid a lawsuit, and they are still trying to avoid a lawsuit, they should have settled with this family quitely and keep this out of the media, MCG looks BAD in my opinion

FedupwithAUG
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FedupwithAUG 05/18/07 - 12:22 pm
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nicohellet, I'm sure the

nicohellet, I'm sure the Doctors at MCG would have diagnosed you correctly given the information that you pain was not relieved with a muscle relaxer. They would have run further tests such as St Josephs did given this information.
As far as Blame should go with this Childs case.. Blame President Reagan. It was his evil administration that ignored the HIV epidemic in 1978 because it involved the gay population. He didn’t even mention the term AIDS in any public manor until May 31 1987. Even in that speech he only made a joke in reference to the lack of funding on the HIV epidemic. By then 36,058 were diagnosed and 20,849 had died. If more funding would have been put in place back in 1978 this person wouldn't have received HIV tainted blood to begin with.
The people at the CDC tried to get the blood banks to test for HIV for years to no avail. Like I said it wasn't until 1987 that the presidential administration even acknowledged there was a problem.
Go out and read/watch “And the Band Played On” then come back to this forum and try to explain to me that it was MCG’s fault. It was Reagan and his Homophobic ideals!

MomToBe
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MomToBe 05/18/07 - 01:48 pm
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It is still the hospital and

It is still the hospital and the doctor’s fault for not testing this boy sooner then they did! Oh Wait Another doctor did the tests not the ones who made the mistake for all those years! There is no Excuse for the lack of testing and what about the hospital not notifying this family AT ALL. Isn't that someone’s fault? They must have been afraid they had made a mistake and tried to cover it up instead of confessing and fixing the problem! Only if the family had been notified or proper testing had been done this poor boy would have never been in the horrible situation he is now. He would not have gone through all this pain and suffering. It still would have been hard and a lot involved but HIV is a lot easier to deal with than Full-blown AIDS! Not to mention the harm in letting it go as far as they did. HE COULD HAVE DIED BEFORE THEY FOUND OUT WHAT WAS REALLY WRONG if the family hadn’t taken him somewhere else!! Wouldn’t that have been a wrongful death case? All I want to say to the Doctors is “Shame on you for not settling this sooner!!” Cases with less Merit than this one have been settled out side of the courtroom! Why are they making this family jump through so many hoops?!

mable8
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mable8 05/18/07 - 01:52 pm
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Unfortunately, HIV can lay

Unfortunately, HIV can lay dormant well beyond the five year limitation that is noted in the statute. The young man and his parents are entitled to file a law suit; MCG is responsible for their cowardice in covering up the misdiagnosis in the firs place.

LBenedict
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LBenedict 05/18/07 - 02:45 pm
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It's my understanding that

It's my understanding that HIV/AIDS swept on to the national scene in 1984 and the hysteria soon followed. That being the case, one would think that everything was tested and screened back then. KNOWING that this virus was out there and transmittable through blood, MCG, and all other hospitals and clinics, should have tested the blood as opposed to rolling the dice with people's lives (never with their own lives...just ours). If MCG does not want to write a big check, at least accept some responsibility without admitting guilt and give this family some justice by providing medical and pharmaceutical care free of charge.

aaa
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aaa 05/18/07 - 03:49 pm
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In 1985, we were only just

In 1985, we were only just beginning to scratch the surface of being able to understand the diagnosis and implication of HIV / AIDS - forget about being able to manage it effectively at that time! I think lots of you folks are trying to apply 2007 medical knowledge to a situation that should be viewed in a 1980's / early 1990's arena of skepticism and misinformation about the disease. Hindsite is a wonderful thing for discussion at cocktail parties but is not recognized in law.

MomToBe
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MomToBe 05/18/07 - 04:12 pm
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Standing Tall are you trying

Standing Tall are you trying to say they couldn't even have tested him after the fact? I know things weren't the same back then but I know for a fact My Mom was informed within a few years of her blood transfusion, which was in 1985, to get tested! She was informed by the hospital where she had the blood transfusion and she didn't have any health problems what so ever!! Why would they not test this boy who had continued health problems. Just In Case!! If he had been tested and treated even 2 years after he received the blood transfusion his likely hood of having an improved state of health and somewhat of a normal life would have been GREATLY INCREASED!! The questions is not whether or not the hospital and doctors are responsible for Giving this boy HIV Positive Blood it is whether or not they could have diagnosed and treated him correctly after he received the blood! Which I believe They are responsible for the misdiagnoses which lead to the untreated condition therefore leading to HIV becoming AIDS before anyone ever knew anything!!

dcmgm
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dcmgm 05/18/07 - 04:45 pm
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I do not understand how

I do not understand how individuals like "Blendoor" "CoastDawg" "MOMACAT" "Standing Tall" can make such stupid statements when they have no knowledge of what this young man has endured for over 16 years prior to discovering that MCG gave him HIV tainted blood. I am making this statement as someone who knows this family and what they have been through. Derek is a wounderful young man who depended on MCG, Dr. Sharon Kaminer, and Dr. Ayman Al-Jabi for his medical needs. He and his family trusted them and believed them when they always stated that his problems were heart related. They made no effort to test him for anything when it should have been obvious to any trained medical personnel that he had other serious medical problems. Due to concerns of his parents, he was taken to Dr. Herman Levy in Brunswick for a second opinion. He took one look at Derek and realized that he had other prroblems other than his Heart. He was sent immediately to Shands Hospital in Gainsville, Fl for testing. Results of the testing revealed the HIV. Thanks God for doctors like Herman Levy, without his quick action, Derek would not be with his family today.

WorriedAboutOurFuture
16
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WorriedAboutOurFuture 05/18/07 - 05:48 pm
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But that's the point GP-73:

But that's the point GP-73: it wasn't actually obvious that he had HIV. Despite all the brilliant opinions above from these clinical, legal sophisticates, these medically educated commentators, HIV and many heart defects cause pretty much the same kind of on-going health issues. In fact, it would be nigh on impossible to tell the difference from the symptoms in many cases. This boy's primary care physician, as the one managing his on-going care, the one most likely to treat his non-heart illnesses, would have been the logical one to follow up on HIV testing. As for MCG, it did not give tainted blood to Derek; MCG gave blood to Derek which later, when better screening methods became available, would have been recognized as tainted. There is a huge difference.

WorriedAboutOurFuture
16
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WorriedAboutOurFuture 05/18/07 - 06:01 pm
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I know how easy it is for

I know how easy it is for something important to get overlooked when multiple doctors from different specialty areas are involved in a sick child’s care, having been in that situation with one of my own. It is essential that parents be pro-active and very well-informed regarding their child’s condition. I'm just curious why Derek's parents didn't ask for an HIV blood test for their son, themselves. I expect they knew he had been transfused if he had heart surgery, and they certainly knew about HIV in the pre-1986 blood supply. He would have gotten the test if they had asked for it. We sure asked for one for our daughter.

dcmgm
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dcmgm 05/18/07 - 08:19 pm
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I did not say it was obvious

I did not say it was obvious that he had HIV I stated that it should have been obvious that he had a serious medical problem.
When he was 15 years old, he weighed only 45 lbs, and less than 4 feet tall. At the same time his doctors keep telling him his heart was doing fine, and he was just going to be small. You would expect a good doctor would explore further and find out why he was not growing. His parents were always concerned that something was not right, and they discussed this with his doctors, but each time, it was his heart problem according to his doctors. They trusted these doctors to have the best interest of their son in mind, never believing that maybe they were not being told the full story.

WorriedAboutOurFuture
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WorriedAboutOurFuture 05/18/07 - 08:33 pm
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Nevertheless, when a parent

Nevertheless, when a parent isn't satisfied with what one doctor is saying, if things just don't seem to add up, it's up to them to ask for another opinion. Heart problems have a very significant and widely varying impact on a child's growth and development, even if the heart is "doing fine" post repair. I don't know of a single CHD malformation repair, other than a simple ASD or VSD, that gives a child a perfectly normal heart, even if it is "working fine" afterwards.

WorriedAboutOurFuture
16
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WorriedAboutOurFuture 05/18/07 - 08:50 pm
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And BTW, the ped

And BTW, the ped cardiologists at MCG had Derek's best interests in mind every single time they saw him, discussed him or even thought about him, and this included Sharon Kaminer, as uncuddly as she is. They knew he had a serious medical problem, but unfortunately misdiagnosed the cause. Despite all you do to avoid having this kind of thing happen to one of your patients, sometimes it just happens anyway. Looking for someone to blame and taking it out of their hide is the disturbing way of things now. As sorry as I truly am about Derek's very sad situation, I would be even sorrier to see Sharon Kaminer and MCG slammed for this.

mom2
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mom2 05/18/07 - 08:55 pm
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"Worried About Our Future"-

"Worried About Our Future"- just what I figured, you must be a cardiologist or doctor of some sort since you have so much knowledge of heart defects, no wonder you were so quick to try and blame the parents for this child not be tested, that is the most absurd thing that has been posted on this comment page, and let me guess do you work at MCG????Worried About Our Future - WE should all be worried about our future with idiotic peolple like you in this world

dcmgm
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dcmgm 05/18/07 - 09:01 pm
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Second opinion was obtained

Second opinion was obtained by his parents. That is how they found out that he had AIDS. During the 14-15 years of treatment received at MCG, several blood testings were done. You would assume that they also tested for HIV/AIDS. If they did, they never told anyone the results. They also knew that the CDC sent notifications to all medical instutions warning them about testing, and to notify any patients who was given blood during 84-85 time frame. MCG never notified this young man. Why?

MomToBe
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MomToBe 05/18/07 - 09:40 pm
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Okay First of all Do you know

Okay First of all Do you know anything about Medical Expenses?? Do you know anything about a small town? In 1985 it wasn’t the same as it is today!! Just like someone on the other side of the coin said earlier! In 1985 in a small town you trusted the Doctor you went to and a hard working middle class family (I am assuming) would have a hard time with all the medical bills piling up, Time off work to take a sick child to the doctor constantly and just to be with this sick child! How, unless you were a rich person, would you have the money to ask for a second opinion? When you are dealing with a sick child and you do not have a medical degree in that time period it is hard to even think about getting a second opinion! Next My Major question for the hospital is “Why DIDN’T You Inform Your Patients? Many Other Hospitals INFORMED Their Patients So That They Would Know To Ask About Being Tested!!

MomToBe
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MomToBe 05/18/07 - 09:41 pm
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Once Again I am MomToBe and

Once Again I am MomToBe and My Mother Had a Blood Transfusion in 1985. She was informed to get a blood test because of the time frame of her transfusion! Luckily her hospital informed her she got tested and she was fine! Don’t you think that if these parents received the same information my mother was they would have had their sick child tested by this doctor or another if they had know for a fact that a threat had been presented to their son?! But once again not being lucky enough to have a medical degree themselves, like you I might add, They would have trusted their Team of doctors and specialist!

MomToBe
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MomToBe 05/18/07 - 10:00 pm
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Also if you expect the

Also if you expect the parents to know to get their child tested Why Didn’t their Team of Doctors and Specialist Think to Run that test on him?! As GP-73 said There were Many Blood Testes Done? Why Knowing he received blood from a donor during the time frame in which no testing was done before the blood was given was the HIV test not one of these blood test? You are expecting the Parents to know but why aren’t you expecting the Team of Doctors and Specialist to Know?? Now “Worried about our future” you want to blame the parents for not knowing to get their son the test or a second opinion but you want the doctors to take no responsibility just because you Like them!

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