Injured family files lawsuit in fatal Austin hospital crash

Editor's Note: The video above features Levi and Nadia Bernard sharing about their experience and recovery after a car hit their family inside a north Austin ER

AUSTIN (KXAN) – Just over a week after speaking out publicly for the first time in an exclusive KXAN investigation, a family of four seriously hurt in February's deadly car crash at an Austin hospital is suing.

The Bernard family filed a 25-page lawsuit in Travis County against St. David's HealthCare early Thursday morning. The lawsuit seeks more than $1 million for mounting medical bills, pain and suffering and lost wages. Their attorney said what happened to them should have been prevented.

"Plaintiffs have filed this case to encourage St. David's and all hospitals to quit waiting for accidents to happen and construct safety barriers now at their emergency rooms before more people are hurt by vehicle intrusions, a very common incident," the lawsuit stated.

In recent days, when asked about the lawsuit the family was planning to file, St. David's acknowledged, "the safety of our patients and their families, as well as our employees and visitors, is always our top priority. Citing hospital policy, it would "not comment on pending claims or litigation."

KXAN has reached out to St. David's again for comment and will update this story with any response we receive.

"For my clients, the fact that this happened to them is completely unacceptable," said Austin trial attorney Sean Breen, who represents the Bernard family, with the law firm Howry, Breen & Herman. "They're still dealing with it. It was totally unnecessary. It was totally preventable. And, what they really, really want is for nobody else to have to go through what they've gone through."

It's been more than three months since Nadia Bernard, her husband Levi, and their two toddlers were inside the lobby of St. David's North Austin Medical Center looking at a fish tank. The car hit the tank and the family.

The driver of the vehicle died.

Police are still investigating the cause but previously said it wasn't intentional. The lawsuit alleges Michelle Holloway arrived at the hospital with her niece to visit a sick family member. According to the lawsuit, Holloway, a passenger, was asked to move the 2016 white Acura TLX, which was parked at the hospital's north entrance. The lawsuit alleges Holloway was "unfamiliar" with the car and "accidentally lost control," crashing into the "vulnerable and unprotected" ER entrance and into the lobby, running over and seriously injuring all four members of the Bernard family.

"I think I still [have] not super processed ... everything," said Nadia, tearing up and still in a wheelchair recovering from a broken leg. "I think I'm still very much not sure what to think of it."

'Why did it happen to us?'

Cell phone video taken moments after the crash shows Nadia unable to stand, being carried away.

Their youngest son, 2-year-old Sunny, needed hundreds of stitches around his face and head and is being monitored for a brain injury after going through the car's windshield. His dad found him in the passenger footwell.

Back in his office, Breen opened a cardboard box and showed KXAN investigators the large, thick shards of glass and granite found inside the white Acura after it had been towed away.

"This is where they found little Sunny laying on this," he said, showing a heavy piece of glass from the aquarium.

"Why did it happen to us?" Nadia asked. "Why did we survive this?"

In the lawsuit, the Bernard family and their attorney accuse St. David's of "gross negligence" for failing to take safety precautions used "around the country, around the state, around the city and in some of St. David's other facilities." The lawsuit points to the hospital's lack of vertical security posts, called bollards, which were installed after the Feb. 13 crash and has been the focus of an ongoing KXAN investigation.

"Had St. David's installed those safety bollards before this incident, as a reasonable hospital should have, this incident would have been totally harmless," the lawsuit said. "St. David's cannot profess ignorance of either the dangerous condition or the solution."

St. David's did not answer our questions about its bollards saying it "cannot disclose specific details of our security measures.”

The lawsuit criticizes St. David's, a $2.1 billion hospital system, for announcing $953 million worth of "healthcare infrastructure" investments in a news release in 2022, but not spending "a very small fraction" of that money on bollards at vulnerable ER entrances. The lawsuit said organizations, like the International Association for Healthcare Security and Safety, have called for "physical barrier protection for emergency rooms" since at least 2012.

KXAN investigates recently traveled to Texas A&M's Transportation Institute near College Station to see, firsthand, how effective crash-rated bollards can be at stopping the equivalent of a Dodge Ram pickup truck going 20 miles per hour. At the time of the crash, St. David's, instead, credited the large lobby fish tank for absorbing the impact and saving lives.

"I thank God for intervening there and giving us that protection," St. David's North Chief Medical Officer Dr. Peter DeYoung said on Feb. 14, less than 24 hours after the crash.

"I wish it was thanking God that there were bollards in front of the building," Levi countered. "Not the thing that attracted us to the center of the lobby."

The lawsuit called DeYoung's remarks "both cruel and damning."

This isn't the first time a hospital has been sued over its lack of bollards. A KXAN investigation found Piedmont Hospital in Atlanta was sued in 2020, and settled for an undisclosed amount, following a similar deadly crash at its ER. Piedmont did not respond to our multiple requests for comment.

The Storefront Safety Council, which tracks building crashes, and a KXAN analysis of TxDOT data, revealed more than 300 crashes at medical facilities nationwide in the past decade – a fact cited in the lawsuit.

“The reality is these accidents are frequent,” said Rob Reiter, SSC co-founder and expert in vehicle-into-building crashes. “They are foreseeable. And they are preventable.”

Breen agrees and believes a jury will, too.

"Oh, this is 100% preventable," he said. "On the scale of accidents that don't need to happen, this is a 10 all right. Why? Because you have a known problem that's easy to predict. You know it's going to happen. It's cheap to prevent. Why not do that? Why wait until someone is destroyed before you actually act?"

KXAN Investigative Photojournalist Chris Nelson, Graphic Artist Wendy Gonzalez, Director of Investigations & Innovation Josh Hinkle, Investigative Producer Dalton Huey and Digital Director Kate Winkle contributed to this report.