law rights & civil resource

posted by admin on Mar 10

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1 steroids, watch the patient, and if something

2 deteriorates or labor progresses, then to stop the

3 tocolytics and allow labor and delivery to occur. And

4 I think that’s what Dr. D. and these nurses were

5 doing.

6 This patient was 34 weeks. There was some

7 question about the total accuracy of 34 weeks, but

8 that’s about as close as they could come. And I think

9 the weight at birth pretty much confirms that, in fact,

10 she was 34 weeks. But to be on the safe side, they

11 elected to try to stop the labor, which they did for a

12 period of time, until the early morning hours of the

13 8th, when the heart rate went through some unusual

14 changes and they proceeded with a rapid cesarean

15 section.

16 Q. Okay. Let’s continue reading the strips

17 now from where we left off, if we could. We were at

18 about 10:30 p.m.

19 A. By the way, I did find the temperature of

20 100.4 at midnight on the 7th, so I just wanted to let

21 you know I found it.

22 Q. Okay.

23 A. Okay. Let’s see. Where are we now? We’re

24 at ten what — 10:40-ish?

25 Q. Fine.

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1 A. Yeah, we now have what appears to be

2 resumption of the tachycardia for about, oh, ten,

3 fifteen minutes. There seem to be mild variable

4 decelerations that go down to about 150 beats per

5 minute. And that continues at a rate of 180 beats a

6 minute until 10:52 or 3, where it comes down slowly to

7 about 120, again with moderate variability. And that

8 lasts for a while, until it slowly goes back up to

9 about 130.

10 Q. What’s the etiology of this changing

11 baseline?

12 A. I think you’ve asked me that before, and I

13 don’t know. I really don’t. A change in some kind of

14 vagal tone or sympathetic tone. I just don’t know.

15 I’ve seen it before, but I don’t think anybody can give

16 you an accurate answer as to why this baseline has

17 changed. That’s why we look at variability.

18 You know, I wrote a — I wrote that article

19 back in the ’70s on variability being the key to fetal

20 well-being, and that’s still where we are today. As

21 long as that variability is in the reassuring range,

22 minimal or moderate, I think you’ve got a baby that’s

23 handling whatever is going on.

24 And in this particular case, even though it

25 goes from 180 to 125 or 120, there’s enough built-in

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1 variability for me to assume that no deleterious event

2 is happening to this fetus, although I can’t explain

3 why there is such a dramatic change in baseline.

4 Q. Variability that is minimal or moderate is

5 still reassuring?

6 A. It is, in the absence of –

7 Q. But –

8 A. In the absence of any significant event,

9 such as a bradycardia, minimal variability is of little

10 consequence. It’s the absent variability that portends

11 a poor outcome, not minimal or moderate. Even marked

12 is an early sign of stress and is not a portender of a

13 bad outcome, assuming that that’s ongoing.

14 Q. Is there any significance to variability,

15 assuming it is good, hypothetically, and later

16 decreases and becomes minimal?

17 A. I think if there is some explanation such

18 as ongoing variable decelerations, ongoing late

19 decelerations, that it’s a sign of increasing fetal

20 stress but not distress. I think you can make a

21 decision to operate and remove the fetus from that

22 environment but with the knowledge that you may well

23 get a very healthy, well-oxygenated fetus.

24 When you get to absent variability, the

25 incidence of babies that are acidotic goes up

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1 dramatically. So it’s the absent variability that

2 obstetricians and nurses are more concerned about.

3 Minimal variability in and of itself is not a sign of

4 fetal distress.

5 Q. Minimal variability is a sign of fetal

6 stress?

7 A. Not necessarily. Only if it were in

8 relationship to some pattern, such as repetitive

9 variable decelerations or repetitive late

10 decelerations. Then it would be a coexistent sign of

11 some fetal stress but certainly not distress.

12 Q. What causes the variability to be minimal

13 absent decelerations?

14 A. Oh, that can just be fetal sleep. That

15 could be the resting variability of this fetus at that

16 particular time. Minimal variability is detectable

17 variability up to about five beats per minute. And we

18 see that in laboring patients all the time. It’s a

19 very common finding. It’s interspersed with moderate

20 variability. Narcotics can do it. Sleep can do it.

21 And just a normal fetus that’s not been given narcotics

22 and doesn’t seem to be sleeping can have minimal

23 variability. It is not a pejorative term.

24 If it’s associated with repetitive

25 decelerations, it is a co-factor with the definition of

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1 fetal stress. But, again, it does not meet the level

2 of distress that we use here at V.or of a very

3 nonreassuring fetal status that urgently requires an

4 immediate cesarean section.

5 Q. So, in your opinion, the standard of care

6 does not require a nurse to call a physician about

7 minimal variability?

8 A. That’s correct.

9 Q. Okay. If you can keep reading the records,

10 please.

11 A. With the caveat — let me just finish it –

12 that there are no repetitive decelerations that seem to

13 be a deterioration from moderate variability to minimum

14 variability.

15 Okay. As we continue, now this tracing is

16 looking, you know, more and more normal. The rate is

17 about 140 again. Moderate variability, accelerations.

18 I’m looking at 11:10, for example. That entire page

19 I’m looking at — 13635, 13636, 13637. I mean, that’s

20 just a very normal tracing. This baby is not taking

21 any hypoxic hits. This looks like just a very normal

22 tracing and with all the continuous monitoring that

23 we’ve done confirms that the heart rate is in the

24 normal range and no longer tachycardic.

25 And as I turn the page to 11:20, I see

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1 pretty much the same thing. I’d call this a rate of

2 140 with accelerations, moderate variability. That

3 continues to twelve — I mean 11:30, with really no

4 significant changes. 11:40, the heart rate seems to be

5 about 145 with moderate variability, accelerations

6 present. This is not a sign of fetal hypoxia by any

7 means.

8 I’m now looking beyond that with a

9 continued rate of 140 with accelerations, and that

10 continues pretty much to midnight. And now at midnight

11 all of a sudden we have, again, more — more of these

12 accelerations or increased variability. It’s hard to

13 be absolutely sure. I think, looking at the previous

14 hour, I would at this point view them more as

15 accelerations from a baseline of about 130. But like I

16 said, I can’t be sure.

17 And then finally at twelve — probably

18 12:08 or 9 in the morning there is more of an erratic

19 pattern and one can’t be sure of baselines or

20 decelerations or accelerations.

21 Q. You mentioned several times, sir, you can’t

22 be sure. Do you believe that the standard of care to

23 treat patients is you do not have to treat them until

24 you’re sure of a certain diagnosis?

25 A. No. You can make certain treatment plans

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1 based on a — a real suspicion of a diagnosis. But

2 there’s nothing in this tracing that would push a

3 physician to — or a nurse — to consider delivery

4 based on this fetal heart rate monitor interpretation.

5 I think sometimes when you’re not sure, you

6 want to take the path that leads you to the least

7 number of problems and complications. But, no, you

8 don’t have to be absolutely sure about a diagnosis

9 prior to acting. It’s very dependent on the situation

10 and circumstances.

11 Q. This new pattern that you described that

12 occurred around midnight, when, in your opinion, did

13 the standard of care require the nurses to tell D.

14 about this new pattern?

15 A. Well –

16 Q. Or they didn’t have to tell him?

17 A. No, no, no. The generic answer is that if

18 the nurse is having trouble with the fetal heart rate

19 patterns and not really knowing what to do, it’s at

20 that point that the doctor needs to be notified.

21 Q. Okay. Well, you just told me you’re not

22 even sure of the pattern, so how is the nurse supposed

23 to figure out what’s going on?

24 A. Well, what the nurse does at this point is

25 she makes every attempt to adjust the transducer, which

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1 is — if you read the nursing notes, which I know you

2 have — that’s what — that’s what they’re doing.

3 There is enough in this area of 12:10 to

4 indicate that more than likely the heart rate is still

5 about 120 beats a minute. On the other hand, by about

6 12:20 the nurses are still searching for the heart rate

7 and trying to adjust the transducer. And I don’t think

8 they call the physician until twelve — let’s see.

9 Q. What are you looking at now?

10 A. I’m looking at the nursing notes and my own

11 notes to see what time Dr. D. was called. I know

12 he was called at 12:50 — is it 12:50 or 12:52 –

13 12:52. And there was a time before that –

14 Q. Let’s get back to this midnight time, sir.

15 A. 12:45. I’m sorry.

16 Q. We’re seeing this new pattern, and you’re

17 telling me the standard of care did not require the

18 nurses to call the doctor because they’re adjusting the

19 transducer; is that correct?

20 A. As long as they are still working and

21 convinced that it’s a matter of a transducer problem

22 and not some fetal distress problem, that’s their

23 responsibility.

24 Q. So could they work on this transducer for,

25 say, three hours, and as long as they’re working on it

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1 they don’t have to call the doctor?

2 A. No, no, I didn’t say that at all. Three

3 hours would be clearly too long — two hours would –

4 an hour would. But it appears to me that from reading

5 their notes and looking at the tracing that they

6 periodically find that the heart rate is in the

7 acceptable range and keep trying. And I notice at

8 12:30 they are successful in getting a period of about

9 five minutes that shows a fetal heart rate pattern that

10 is very similar to the one that they had been getting

11 prior to the twelve midnight changes in pattern

12 recognition.

13 Q. Well, can you tell me, with reasonable

14 probability, what was the fetal heart rate between five

15 after twelve and the 12:30 time where they got that

16 pattern?

17 A. There is not enough information here to

18 give you that — to give you that rate.

19 Q. So for 25 minutes you don’t have enough

20 information to give me that rate, but nonetheless you

21 do not feel the standard required the nurse to inform

22 the doctor of this; is that correct?

23 A. That’s correct, as long as they’re working

24 with the patient trying to figure out what’s going on.

25 Remember, she’s not contracting. There

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1 shouldn’t be any big change in this rate. Otherwise,

2 this baby has looked perfectly normal prior to that.

3 And as long as they’re thinking that it’s a transducer

4 problem — which it appears by 12:30 they have figured

5 out it is — I don’t — I don’t — I don’t believe that

6 they’re violating any standard of care by not calling

7 him during that 25-minute period of time.

8 Q. Have you ever heard, sir, of a patient

9 having a sudden cord compression where none existed

10 beforehand?

11 A. Sure.

12 Q. Is that well known to happen?

13 A. Sure.

14 Q. How long in such situations, sir, does the

15 standard of care allow nurses to think what they have

16 is a transducer problem before calling a doctor?

17 A. Well, they’ve got the transducer on the

18 abdomen, and they can hear periodically. For example,

19 during this 30 minutes we’re talking about, there are a

20 number of times where the paper actually traces out a

21 rate of about 120, 130 beats per minute. I couldn’t

22 give you a baseline rate because I need ten minutes of

23 data to support that.

24 But they’re putting the transducer, which

25 is just a Doptone device, on the abdomen and hearing