law rights & civil resource

posted by admin on Mar 10

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1 Monday and Tuesday?

2 A. Tuesdays and Wednesdays.

3 Q. Tuesday and Wednesday.

4 Now, have you ever had to testify in C.

5 for a trial on a Tuesday or Wednesday?

6 A. Oh, probably. I try to avoid it at all

7 costs, but I’m sure over the years I’ve — the schedule

8 was just such that I couldn’t avoid it and had one of

9 my partners fill in for me.

10 Q. Okay. Sir, I’m looking at your notes which

11 were timely faxed to me. Is there any opinion on here,

12 or is it simply a chronology?

13 A. It’s simply a chronology. There is an

14 opinion on the second page, at the bottom, where it

15 says — close to the bottom — where it says, “IMP.”

16 It’s just to the right of the note that says,

17 “Discharge 9/30.” It has — that’s meant to say,

18 “Impression, No DSC.” That’s my way of writing, “No

19 deviation of standard of care.” That’s the only

20 opinion on it. The rest is just gleaned from the

21 chart, as far as times, notes, facts that allow me to

22 not have to go through everything once again.

23 Q. Okay. Now — I’m sorry. Now that I have

24 the notes in front of me, it would help me if you

25 could — I know it’s repeating testimony, but where on

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1 here is the notes you read the first reading, and where

2 on here is the notes you read, I think you said, after

3 a deposition or something?

4 A. Well, the only thing I can say — I’m not

5 exactly sure — but there are two different colored

6 pens.

7 For example, on the first page, under the

8 term “19 year old, gravida 1,” I’ve written “PNC” –

9 prenatal care — “began at health department.”

10 And then there are three lines after that

11 in my copy — which you probably can’t get because it’s

12 faxed — is a different pen. “Saw Dr. D..

13 Hepatitis. Cervical cone.” That probably came later.

14 And on the second page, again at the

15 bottom, the last bit of information about the baby

16 information, “RDS, HIE seizures first day, ATN, heme

17 positive stool, head ultrasound, edema” — that’s all

18 been written with a different pen, so I assume that I

19 got that at a different time.

20 Q. Okay. So is there anything on these two

21 pages that come from the depositions?

22 A. No.

23 Q. Do you know any of the health care

24 providers, sir, of the baby?

25 A. No. At least I don’t think so. I know

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1 some doctors in the …area, but I don’t

2 know of any of the providers here taking care of –

3 having taken care of the child.

4 Q. Okay. The notes on the second page that

5 begin with “EFM” for “external fetal monitor,” is that

6 your interpretation of the fetal monitor strips?

7 A. Yes.

8 Q. Sir, do you have an opinion that you hold

9 to a reasonable degree of medical probability as to

10 whether or not this patient was a high-risk patient?

11 A. Well, sure I have an opinion.

12 Q. What is that, sir?

13 A. Well, it depends on when you want to

14 classify her. During the prenatal course, she is –

15 she has a few factors that some people might list as a

16 high-risk patient. The fact that she had had

17 hepatitis, the fact that she had had a cervical

18 conization, the fact that her ultrasound on June 19th

19 is about as good as we’ve got for dates, some people

20 would say that’s an increased risk. Essentially, she’s

21 not really at high-risk, but I wouldn’t argue with

22 someone who said that she was at increased risk because

23 of the things that I’ve just mentioned.

24 Q. Okay. And how about when she comes into

25 the hospital; was there any point in time where she

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1 was — aside from the factors you listed — a patient

2 who one could call high-risk?

3 A. Yes. Now, here’s a more objective,

4 unarguable point; that at 34 weeks, with the patient

5 coming in with contractions and cervical dilatation of

6 one centimeter and 80 percent effaced, this would

7 classify as a patient with premature labor. And that,

8 by anybody’s classification, is considered high-risk.

9 Q. Okay. Will you agree with me that a

10 patient who is high-risk requires continuous

11 monitoring?

12 A. Well, actually, no, I won’t agree with you

13 on that — not that I wouldn’t do it myself. But the

14 standard of care really allows for periodic

15 auscultation. That was established back in 1988, when

16 the American College of OB/GYN literally changed the

17 standard of care, in my opinion.

18 But I think that the prudent health care

19 provider would attempt to provide continuous external

20 or internal fetal monitoring to a patient such as

21 Ms. K.. I just think that I could quibble and

22 argue with someone who said that it was the only

23 standard. It is certainly one of the standards, but it

24 is not the only standard.

25 Q. Well, what is your definition for “standard

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1 of care,” sir?

2 A. It’s what the average, prudent physician

3 would do under similar circumstances. And that is

4 widely expected and accepted by the medical profession

5 based on a number of informational avenues, such as

6 journals, textbooks, practice parameters, technical

7 bulletins, committee opinions, and the like. So it’s

8 a — it’s sometimes vague, and it’s sometimes very

9 specific.

10 In this case clearly we know that

11 electronic fetal — continuous electronic fetal

12 monitoring of a patient in premature labor meets the

13 standard of care. But ever since 1988, when the

14 American College of OB/GYN Committee — which I sat on,

15 by the way — allowed for auscultation on a periodic

16 basis, I think that that also has become one of the

17 standards of care of managing a patient in labor.

18 Q. So using your definition, would it be fair

19 to say in this high-risk patient you do not believe the

20 standard of care required continuous monitoring, but it

21 could have involved periodic monitoring with the

22 auscultation and nonetheless the health care providers

23 would have met the standard of care?

24 A. That’s correct.

25 Q. And you say that’s been your opinion since

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1 1988, sir?

2 A. Well, ever since that opinion was changed

3 by the American College, sure, I felt that the American

4 College’s Committee on Obstetrics had a very thoughtful

5 review by a number of experts. There were — there was

6 one dissenting vote on that particular decision by the

7 American College to go to periodic auscultation as an

8 acceptable standard or acceptable process. I don’t

9 think that the College really wants its committee

10 opinions and technical bulletins to be considered

11 standard.

12 But I think in 1988, when it changed its –

13 its criteria for continuous electronic fetal

14 monitoring, I think it allowed for periodic

15 auscultation, assuming that it’s done appropriately, to

16 become one of the standards of care in managing a

17 patient in labor, regardless of the risk status.

18 Q. And, again, that’s been your opinion since

19 1988; correct?

20 A. That’s correct.

21 Q. Now, about the opinions in the bulletins of

22 the College, did I understand you to say that just

23 because they publish an opinion in a bulletin that

24 doesn’t necessarily make it a standard of care?

25 A. Oh, I think that that’s what — certainly

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1 that’s what the American College would like to state up

2 front. And I tend to — I tend to agree with them,

3 although I have said in other depositions and trial

4 that it comes pretty close to being the standard –

5 having been involved in many of these decisions, they

6 are done after careful review of the literature; they

7 are sent out to all of the 37,000

8 obstetrician/gynecologists.

9 In most cases I think what the College says

10 becomes pretty close to the standard of care. There

11 may be a few areas of disagreement and differences of

12 opinion. But I’m comfortable saying that it’s as close

13 to standard of care as some of us who are asked to

14 comment on standard of care can get.

15 But there is a disclaimer by the American

16 College that their pronouncements are not — should not

17 be construed as the standard of care. There are other

18 standards that can also be acceptable.

19 Q. Okay. I’m not necessarily concerned now

20 with what the College is saying, because I’m deposing

21 you. And I just want to make sure I got your opinion

22 correctly.

23 And I think what you’re telling me is the

24 opinions and bulletins of the College come close to the

25 standard of care but necessarily are not the standard

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1 of care; is that correct — in your opinion?

2 A. I think that’s probably stated pretty well.

3 I think that characterizes my opinion.

4 Q. Okay. And I’m sure you understand that

5 when we talk about standard of care, if a health care

6 provider meets the standard of care, then there’s,

7 obviously, no violation of the standard of care.

8 If, on the other hand, a health care

9 provider comes close to the standard of care but does

10 not meet it, there is a violation of that standard of

11 care.

12 A. That is — that is exactly correct — with

13 one caveat. And that is that there are often many

14 standards of care that work. There are judgment calls

15 that doctors make all the time. And as long as the

16 judgment that they made fit one of the standards — in

17 other words, not every situation in medicine is handled

18 by one specific means. There are many different

19 avenues that a doctor can take and still be compliant

20 with the standard of care. Sometimes it’s one –

21 Such as in obvious fetal distress, one has

22 to proceed with a cesarean section. But then short of

23 that, there may be decisions that are not quite as

24 objective and would allow the physician to do a few

25 other things.

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1 So standard of care is not just one avenue

2 in each instance; it is often two or three avenues.

3 Q. Okay. Now, sir, you’re a physician, and

4 you’re now testifying that the nurses in this case met

5 the standard of care. How are you able to determine

6 what is the prudent, reasonable nursing standard of

7 care applicable to the time frame in this case?

8 A. Well, ever since I came to Vanderbilt, I

9 have been heavily involved in nurse education at the

10 nursing school, on our labor and delivery suites, in

11 the midwifery program. I’ve worked side by side with

12 nurses over the years and sometimes on a day-in and

13 day-out basis. I lecture to nurses at conferences

14 throughout the country and in other countries. I have

15 helped put many of the policies together here at

16 V. that are nursing policies for labor and

17 delivery.

18 So I believe that in most instances I have

19 a very good understanding of what the standard of care

20 is for nurses.

21 Q. Sir, would you think that in order to

22 defend a case where there are allegations of

23 malpractice on behalf of the nurses that it would be

24 more important to have a nurse express nursing

25 standards of care than a physician such as yourself?

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1 A. I always feel comfortable when a qualified

2 nurse expert is also involved in the defense of nurses.

3 So, yes, I tend to agree with you on that.

4 Q. Okay. Do you know what is the educational

5 background of Nurse Martin in this case?

6 A. No.

7 Q. Okay. Sir, concerning the standards of

8 care of nurses in this case, will you agree with me

9 that there should be an, I guess, practice or policy

10 written down for the nurses to follow as a protocol in

11 their dealings with patients and physicians?

12 A. Yes.

13 Q. Do you know if such a policy was written

14 down in this case?

15 A. No.

16 Q. Would you agree with me that in that policy

17 there should be general policy statements that identify

18 when and how they should be performing the fetal

19 monitoring?

20 A. Yes.

21 Q. Those protocols should also distinguish

22 normal from abnormal findings; correct?

23 A. That might be left out of policies. Not

24 all policies have specific objective criteria what is

25 normal and abnormal.