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(SCH) shocked the public in November 2019 when the CEO admitted the hospital had been contaminated with Aspergillus mold since 2001, which was the cause of death for six patients.

Nearly three years later, Attorney Karen Koehler, representing H.K., a child infected with the mold during surgery treating a brain aneurysm, called it a case of corporate fraud during a hearing Friday.

“The problem was not created by the doctors or the medical team,” Koehler said. “The problem was the premises as managed by the corporation.”

Seattle Children’s shuts down some ORs after finding low levels of mold

Koehler stated Seattle Children’s Hospital knew about the air-system problem for years.

Seattle Children’s Attorney Brad Fisher is asking for those charges to be dismissed from the case, because it’s been determined medical negligence caused the child’s side effects, not the mold.

“This claim should not be a part of the case. We’ve accepted responsibility for the contamination and whatever damages were approximately caused by that.”

Initially, the case of H.K. was included in the class action suit because his surgically-removed skull piece was contaminated with Aspergillus in the operating room. Upon further investigation, it was determined that his profound brain injury was the result of medical negligence. In March 2021, a separate lawsuit was filed against SCH and the University of Washington.

According to Koehler, the medical negligence relates to the delay in care of H.K.’s brain aneurysm, which eventually burst.

Koehler’s case for corporate fraud breaks into six parts:

• First, SCH, through its decades-long conduct, mismanaged its air handling systems resulting in Aspergillus contamination.
• Second, the hospital used an operating room even though it knew there was an ongoing Aspergillus problem which it had not disclosed.
• Third, the hospital contaminated one-third of the toddler’s skull in the operating room with the mold.
• Fourth, the hospital hid the positive findings of Aspergillus contamination from the parents for one month.
• Fifth, the hospital did not use its infectious disease program to begin care of the child to make sure he was not contaminated during that one-month delay period.
• Sixth, the hospital destroyed the skull piece without telling the parents.

“The more we learn, the more upsetting it becomes, in terms of facts about this case,” Koehler said. “When Aspergillus was found, and it was found on both sides of the [skull] flap, meaning the outside and the inside. So there could be Aspergillus on it, on the child’s brain. The normal course of action is to call infectious disease, assess the child, and probably, at a minimum, begin prophylaxis care. This is standard. This is medical treatment.

“This is not what we’re suing for,” Koehler continued. “We’re suing because what happened was, for almost 30 full days, almost a full month, the hospital appeared to have been doing PR work. They did not tell the parents. They deprived the parents of knowledge of their children, they deprived the parents of access to the chart, they deprived the parents of a property right.”

Koehler went as far to say SCH only told the family of the mold contamination because the media was about to break the story.

“The notion that the existence of a positive test for Aspergillus somewhere in a hospital somehow proves negligence or it was reportable, was categorically untrue according to their own expert,” Fisher said. “It’s everywhere. It can’t be eliminated in a hospital environment. It just can’t. The notion that Seattle Children’s concealing something, again, is not true. There are thousands of these infections in the state. Others don’t report them. Seattle Children’s did. They reported to DOH, the CDC, Seattle and King County, they published articles, gave notice to families in 2018 about positive test results, and didn’t conceal anything.”

is an infection caused by Aspergillus mold. The illnesses resulting from aspergillosis infection usually affect the respiratory system, triggering an allergic reaction. Other people develop mild to serious lung infections. The most severe form of Aspergillosis — Invasive Aspergillosis — occurs when the infection spreads to blood vessels and beyond.

Seattle Children’s details mold outbreaks dating back to 2001

Depending on the type of Aspergillosis, treatment may involve observation, antifungal medications, or, in rare cases, surgery.

“I would just note, for the record, Seattle Children’s loves their patients and people who’ve dedicated their lives’ work to this cause,” Fisher said.

Judge Jim Rogers will make a decision sometime next week.