posted by admin on Jan 14
3 IN THE CIRCUIT COURT FOR MONTGOMERY COUNTY
MARYLAND
4 —————————————-X
________, a Minor
5 by her parents and next friends,
________ and ________,
6 et al.,
7 Plaintiffs,
8
-against- No. 206890
9
10 ________ ADVENTIST HOSPITAL, INC.,
________, M.D., et al.,
11
Defendants.
12 —————————————-X
13 .. .. Broadway
Port Jefferson, New York
14
January 25, 2001
15 1:30 p.m.
16
17
18 DEPOSITION of ________, M.D.,
19 an Expert Witness herein, taken by the
20 Plaintiffs, pursuant to Notice, held at the
21 above-noted time and place before a Notary
22 Public of the State of New York.
23
24
25
ALLIANCE REPORTING SERVICE, INC. * (516) 741-7585
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2
A P P E A R A N C E S:
3
4 JANET, WILLOUGHBY & GERSHON, LLC
Attorneys for Plaintiffs
5 Executive Center at Hooks Lane
Eight Reservoir Circle – Suite 200
6 Baltimore, Maryland 21208
7 BY: ZEV T. GERSHON, ESQ.
(Via Speakerphone)
8
9
EPSTEIN, BECKER & GREEN, P.C.
10 Attorneys for Defendant – ________
Adventist Hospital, Inc.
11 1227 25th Street, N.W.
Washington, D.C. 20037-1156
12
BY: JOANNA JESPERSON, ESQ., of Counsel
13 (Via Speakerphone)
14
15 ARMSTRONG, DONOHUE, CEPPOS & VAUGHAN, ESQS.
Attorneys for Defendant – ________, M.D.
16 204 Monroe Street – Suite 101
Rockville, Maryland 20850
17
BY: KENNETH ARMSTRONG, ESQ.
18 (Via Speakerphone)
19
20 DeCARO, DORAN, SICILIANO, GALLAGHER &
DeBLASIS, LLP
21 Attorneys for Defendant – Adventist Preferred
Nursing
22 4601 Forbes Boulevard – Suite 200
P.O. Box 40
23 Lanham, Maryland 20703-0040
24 BY: MARY-LEE MILLER, ESQ., of Counsel
(Via Speakerphone)
25
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1
2 ________________, M. D., the
3 witness herein, having been first duly
4 sworn by LINDA CIPRIANO, a Notary Public
5 in and for the State of New York, was
6 examined and testified as follows:
7 MR. GERSHON: My name is Zev
8 Gershon. I am going to be asking you a
9 series of questions.
10 If at any time you don’t understand
11 one of my questions, please ask me to
12 rephrase it.
13 If you do answer, though, I will
14 assume you understood the question and
15 hold you to your answer.
16 Do you understand, sir?
17 THE WITNESS: Yes, I do.
18 MR. GERSHON: You have also given a
19 deposition before; correct?
20 THE WITNESS: Yes, I have.
21 MR. GERSHON: You know you have
22 to answer verbally, as opposed to a
23 nod of the head or shrug of the
24 shoulders?
25 THE WITNESS: That’s correct.
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1
2 EXAMINATION BY
3 MR. GERSHON:
4 Q Would you please state your name
5 for the record.
6 A ________.
7 Q Where do you reside?
8 A Forty-five Hitherbrook Road, Head
9 of the Harbor, New York 11780.
10 Q What records have you reviewed?
11 A I reviewed the medical records of
12 the mother of the child; some follow-up
13 records of the child; and three depositions,
14 those of — I think it’s _____________, the
15 mother of Mr. _____, I believe, or Mrs.
16 _________, I’m not sure whom, the deposition
17 of Dr. _________, and the last deposition
18 was the deposition of Dr. _________.
19 Q Have you reviewed anything else in
20 connection with this case?
21 A No, I haven’t.
22 Q Medical articles, textbooks?
23 A I reviewed the 1999 international
24 consensus on cerebral palsy that was in the
25 October issue of the British Medical Journal.
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2 That’s the only thing that comes right to
3 mind.
4 Q Do you have some notes?
5 A Yes, I do.
6 Q How many pages?
7 A There are four pages, front and back.
8 Q Are those the only notes you ever
9 made on the case?
10 A That’s correct.
11 Q Any opinions on there?
12 A No.
13 MR. GERSHON: We’ll mark those as
14 Plaintiff’s Exhibit 1 at the end of the
15 deposition.
16 Q Doctor, have you talked to any
17 health care providers about the case?
18 A No, I haven’t.
19 Q Is there a list of exactly the
20 medical records you reviewed in any of those
21 binders or cover sheets they sent you with
22 the records?
23 A Yes, there is.
24 MR. GERSHON: Those lists of
25 medical records will be Plaintiff’s
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2 Exhibit 2 at the end of the deposition,
3 if that’s okay, Ms. Court Reporter.
4 Q Doctor, what is your understanding
5 of the child’s current condition, to a
6 reasonable degree of medical probability?
7 A I understand the child has cerebral
8 palsy, is severely retarded cognitively, and
9 obviously has many developmental delays.
10 Q Doctor, do you have an opinion to a
11 reasonable medical probability, what is the
12 cause of the child’s current condition?
13 A Yes, I do.
14 Q What is that?
15 A My opinion is the child suffered
16 antenatal, that is, before labor, upwards of
17 48 hours or more before labor, she suffered
18 hypoxic-ischemic injury to the brain.
19 Q Can we call that HIE for
20 simplicity?
21 A That’s fine.
22 Q Doctor, when you say antenatal 48
23 hours or more, are you saying to a reasonable
24 medical probability, it was at least 48 hours
25 before birth?
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2 A Yes, I am.
3 Q The other end of it or the more,
4 what is the other parameter to a reasonable
5 medical probability, that this HIE occurred
6 no more than X before birth?
7 A I would say no more than 84 to 96
8 hours, somewhere in there.
9 Q Doctor, what’s the basis of your
10 opinion, first of all, not the timing, but,
11 first of all, that what caused the child’s
12 injuries was HIE?
13 A The basis for that are the CT-scan
14 findings, some evidence of liver dysfunction
15 at the time of birth, as well as elevated
16 levels of nucleated red blood cells. Those
17 are pretty much it.
18 And then the child’s subsequent MRI
19 findings and how the child has ended up
20 developmentally.
21 Q Let’s talk timing. With a
22 reasonable medical probability, what’s the
23 basis of your opinion that the HIE occurred
24 somewhere between 48 hours and 84 to 96 hours
25 before birth?
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2 A I put the timing to that amount of
3 time right in there based on several things.
4 Number one, the child initially had
5 in the complete blood count an elevated level
6 of nucleated red cells, those are nucleated
7 red blood cells, and those are at about two
8 hours of life; and the proportion was 47
9 percent.
10 Nucleated red cells typically take
11 at least 12 to 24 hours to respond to hypoxic
12 or ischemic injury. Some people say they may
13 take upwards of 48 hours.
14 The reason I placed the timing of
15 the injury even at 48 hours and beyond is
16 because the nucleated red cells persisted in
17 the child’s bloodstream for at least four to
18 five days.
19 Typically whenever you find
20 nucleated red cells in a child’s blood, they
21 disappear by the second day of life or so.
22 And if you find it persisting
23 beyond that time in a child like this, it
24 points to the injury having occurred even
25 further before delivery.
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2 The other thing that was striking
3 to me on that first day as a blood study were
4 the liver function test, the levels of LDH
5 and CPK. These two were extraordinarily
6 elevated, and they had declined by two days
7 after that.
8 Typically what you see as a
9 response to organ injuries such as to the
10 liver is an increase in these enzymes that is
11 maximummed at approximately 72 hours of age,
12 and then the levels start to go down.
13 These were maximum again
14 extraordinarily high with the first studies
15 that were obtained on the first day of life.
16 The other thing that is consistent
17 with the injury in that time frame that I’ve
18 brought up is the child’s finding on CT
19 scans.
20 And first CT scan, which was done
21 at approximately 13 hours of life, showed
22 substantial cerebral edema. And cerebral
23 edema is usually maximum and having those
24 kinds of changes that were described
25 somewhere between 48 and 72 hours after an
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2 injury.
3 So this child’s findings again put
4 it in that kind of time range that I brought
5 up.
6 There are a number of issues, and I
7 won’t describe these until you ask me, which
8 tell me that the injury was not during the
9 hours before birth.
10 Q Why don’t you give me those bases
11 also.
12 A There are a number of those, and it
13 starts with — I will say it, that the child
14 did not reach or achieve the four necessary
15 parameters that both the American College of
16 Obstetrics and Gynecology and the American
17 Academy of Pediatrics deem are necessary to
18 support the conjecture that brain injury
19 occurred proximate to the time the child was
20 delivered.
21 Clearly the child did not have an
22 umbilical cord pH less than seven. The
23 Apgars did not persist at three or less
24 beyond five minutes of age. The child did
25 not show signs of acute multisystem organ
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2 failure.
3 The only thing the child
4 demonstrated in the days after birth was
5 findings that were neurologic in nature,
6 probable seizures and abnormal movements,
7 increased tone.
8 The other striking things to me
9 that again do not support injury in those
10 hours before delivery include the following:
11 There was really no evidence of
12 kidney damage. There was not a slowdown in
13 urine production. And the kidney function
14 tests, the BUN and creatinine, were not
15 elevated as you typically see.
16 This child, in the first hours of
17 life, the first half day of life, did not
18 require mechanical ventilation. And again
19 children who have been injured severely in
20 the hours before birth, the vast, vast
21 majority of them do.
22 The child did not demonstrate
23 hypoglycemia, low blood sugar, or
24 hypocalcemia, low calcium levels. Again
25 these, you typically see after acute injury.
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2 You did not see a drop in the
3 child’s platelet counts that you normally
4 would see in the first complete blood counts
5 on that first day of life.
6 You did not have an elevated total
7 lymphocyte count, and again that’s something
8 that is often used as an indicator of acute
9 injury.
10 The child, after one hour of being
11 sort of floppy, then had increased tone for
12 several days. Typically after acute severe
13 injury, what you see is the children are
14 floppy, hypotonic for upwards of 36, 48 hours
15 or so.
16 And there was no need — I’m sorry.
17 This child did not have evidence of lung
18 injury called persistent pulmonary
19 hypertension.
20 And I think those are the major
21 things that put it into that time frame.
22 MR. GERSHON: Obviously I have some
23 follow-up questions. Okay?
24 THE WITNESS: Sure.
25 MR. GERSHON: That was longer than
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2 I expected, and I’m impressed that you
3 did it without notes.
4 We’re going to try to do it step by
5 step.
6 Q First of all, I didn’t ask you
7 about your CV. Have you written any articles
8 concerning issues that you just told me about
9 that form the basis of your opinions about
10 this case?
11 A Yes, I have.
12 Q Do you have a copy of your CV in
13 front of you?
14 A Yes, I do.
15 MR. GERSHON: I would ask, if you
16 could at the break, just to indicate on
17 there with a checkmark or circle,
18 whatever, any articles that you have
19 written that would state exactly what
20 you told me that form the basis of your
21 opinion. Okay?
22 THE WITNESS: Yes, they support it.
23 I will go ahead during the break and
24 indicate those.
25 MR. GERSHON: Great.
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2 Q Let’s go to the CBC part with the
3 increased nucleated red blood cells at two
4 hours of life.
5 Is there any medical literature you
6 are familiar with that it takes 12 to 24
7 hours for the nucleated red blood cells to
8 respond after an ischemic event?
9 A Yes, there is.
10 Q Please name it.
11 A Several, that is, several articles.
12 Jeffrey Altschuler discusses this. In
13 addition, the several articles out of
14 California by Korst and Jeffrey Phelan and
15 Gilmartin — they all quote the animal work.
16 I don’t remember the names of the
17 articles concerning the animals. There are
18 at least three or four that go into the
19 timing of injury.
20 And in the human data again that
21 those authors have written over the last
22 five, six years or so all consistently go
23 along with that kind of a response, with the
24 nucleated red blood cell response.
25 That’s pretty much the medical
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2 literature.
3 Q Aside from the medical literature,
4 are you basing your opinion that you
5 personally and the kids you have seen with
6 HIE, their nucleated red blood cell pattern
7 has followed this?
8 A I certainly am. That is a clearly
9 typical kind of pattern.
10 Q How many kids have you seen with
11 HIE that have a nucleated red blood cell that
12 takes 12 to 24 hours to respond and persists
13 four to five days and usually would disappear
14 by the second day of life and all that kind
15 of stuff?
16 A I would say in the last eight or
17 nine years, because that’s only the time
18 frame that I really looked at this, I never
19 really looked at it before, probably on
20 average, two or three kids a year.
21 And so I would say I’ve probably
22 seen at least — this is a minimum of 20 to
23 25 children that I’ve looked for this; and
24 virtually all of them — and I can’t think of
25 any that did not fit this pattern, all of
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2 them have fit this pattern.
3 Q Again on your CV you’ve published
4 an article describing your findings?
5 A Not — I have described and
6 discussed nucleated red cells in the past,
7 but not that specific way.
8 This was — when I have described
9 nucleated red blood cells, it wasn’t a study,
10 it was something else. So this is not
11 something that I have formally described and
12 done — and written about.
13 Q Move on to liver function tests.
14 The LDH and CPK, very high
15 initially and declined by two days and
16 usually continues on.
17 Have you got some literature that
18 supports you that this pattern indicates that
19 the injury occurred really between 48 and 84
20 to 96 hours before birth?
21 A Nothing that I can quote off the
22 top of my head. I know both Joseph Volpe and
23 Jeffrey Perlman have described this, among
24 others; but none come right to mind, no other
25 ones.
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2 Q You believe, as we sit here today,
3 that both Jeffrey Perlman, Dr. Perlman and
4 Volpe, in this textbook, have a time course
5 like you’re telling me is usually found in
6 HIE kids?
7 A They refer to multisystem organ
8 failure, the effects on liver. I don’t know
9 if they have — I just frankly don’t remember
10 how they’ve described it. I haven’t looked
11 for this for years.
12 Q Whether or not they’ve described
13 it, in any of those articles that you
14 published in your CV, have you described that
15 this is the very pattern that you have seen
16 in those approximately 20 kids that you have
17 seen in the ten years?
18 MR. ARMSTRONG: Off the record.
19 (Whereupon, a discussion was held
20 off the record.)
21 A Those 20 kids are the anecdotal
22 experience that I have had.
23 I have not written anything
24 specifically about those 20 kids.
25 Q You also haven’t written about the
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2 liver function tests; correct?
3 A That’s correct.
4 Q Let’s move on to the CT. At 13
5 hours it already showed substantial edema,
6 and it usually maximizes at 48 to 72 hours,
7 so on and so forth. Are you relying on any
8 literature or textbooks for this?
9 A Again at least the bear minimum is
10 Joseph Volpe’s textbook.
11 There are a number of articles that
12 have been written over the last 12, 13 years
13 or so, talking about CT-scan findings. And I
14 can’t remember the specific authors; but this
15 is very much in keeping with what is
16 described.
17 Q I understand edema usually
18 maximizes at 72 to 48 hours.
19 How do you know that the CT that
20 you have done at 13 hours of life wasn’t
21 maximum or was maximum?
22 A Putting it together with all the
23 other information that we have, in
24 particular, the liver function tests and the
25 nucleated red blood cells, that puts the time
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2 back in that time frame I brought up.
3 Q Taking it in itself, you as a
4 neonatologist cannot look at that film or
5 film report and say it was or was not
6 maximum; correct?
7 A I can look at it or at the report
8 and from the description with the slitlike
9 ventricles or not even being able to see the
10 ventricles and say that is typically the
11 maximum kind of pattern that you see.
12 Q How would it look if it was 90
13 percent, instead of maximum? Wouldn’t the
14 ventricles still be slitlike, sir?
15 A No. Ninety percent, if the
16 swelling is down, you’re going to see a
17 little bit more of the ventricles and be able
18 to identify them.
19 Fifty percent, you’ll see even more
20 of the ventricles, and so on.
21 Q Was a percentage written in the CT
22 report?
23 A They could not identify the
24 ventricles. They did not describe a
25 percentage.
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2 Q As a neonatologist you have
3 reviewed CT scans of HIE kids, don’t you?
4 A I sure do.
5 Q Do you have a measuring system for
6 measuring how much cerebral edema is present?
7 A I look for the ventricles, and I
8 look for the changes in the gray/white matter
9 for the differentiation that you have between
10 them.
11 And I know what I have seen over
12 the years in kids that we know the exact time
13 that they may have — that they have suffered
14 injury. And I don’t have a set scale that I
15 have written down, but I sure know what the
16 normal progression is.
17 Q That’s fine. I’m just wondering,
18 how can you tell how much edema is on the
19 films that you look at if you don’t use a
20 scale?
21 A As I just brought up, I look to see
22 if you can even identify the ventricles, look
23 at the size of them.
24 And I look at the gray/white matter
25 differentiation to assess it.
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2 Q Did you see the films in this case,
3 sir?
4 A I did not.
5 Q Is it your understanding that it’s
6 only when you get maximal cerebral edema,
7 that’s the time when you will not see the
8 ventricles?
9 A That’s the neuroradiologists I have
10 worked with, that’s how they described it;
11 and from what I have seen in the literature,
12 yes.
13 Q What literature, sir, tells you
14 that it’s only when it’s maximal edema will
15 you not be able to see the ventricles?
16 A It’s the neuroimaging literature
17 over the last 12, 13 years or so.
18 Q Can you name one article?
19 A There are — there’s some in, I
20 think it’s — well, I can’t tell you the
21 specific articles or authors, but it is
22 clearly in that literature.
23 There is no question about this.
24 MR. ARMSTRONG: We’ll be glad to
25 give it to you.
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2 MR. GERSHON: Can you forward that
3 article or articles to defense counsel
4 that state that it’s only when it’s
5 maximal cerebral edema, you cannot see
6 the ventricles?
7 THE WITNESS: I’m going to have to
8 dig around for those and do some library
9 searches when I get a chance.
10 If you’re willing to pay for my
11 time, I’m more than happy to.
12 Q You don’t have this in a file in
13 your office readily handy, do you?
14 A Not readily handy, no.
15 Q How about instead of now saying you
16 can’t see the ventricles, how about the
17 ventricles are slitlike, do you have an
18 understanding, does that only occur when you
19 have maximal cerebral edema, or not?
20 A Again that can be consistent with
21 maximal cerebral edema, near-maximal cerebral
22 edema. That’s also described with it. Again
23 that’s a finding that people often use to
24 describe maximal cerebral edema.
25 Q What does it mean, near-maximal
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2 cerebral edema, when you use that to describe
3 slitlike ventricles?
4 A I really don’t — I just used that
5 term, but that’s the first time I’ve ever
6 used that.
7 MR. GERSHON: Good for you.
8 THE WITNESS: Are you waiting for
9 me to answer?
10 MR. GERSHON: No. I’m trying to
11 figure out how to phrase the question.
12 Let me ask you this.
13 Q Do you remember, those 20 kids with
14 HIE, every time that you looked at their CT
15 scans, did you see slitlike ventricles, or
16 not?
17 A Again I can’t remember the
18 particular kids, each and every one and the
19 progression of those.
20 Typically the CT scans were
21 obtained serially, some on the first day,
22 most were obtained between two and four days.
23 The initial CT scan of life and, to
24 the best of my recollection, the vast
25 majority of kids had either slitlike
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2 ventricles or ventricles that could not be
3 identified at that two to four days of
4 lifetime frame.
5 Q You told me you knew in some, if
6 not all, of those 20 kids, when the exact HIE
7 insult occurred; is that correct?
8 A That’s what I’m referring to. There
9 were things like abrupted placenta, that kind
10 of thing.
11 Q Did you know exactly when it
12 occurred in all 20, or not, sir?
13 A I think for the ones that I’m
14 referring to, I think we were able to
15 establish or know like within an hour or so
16 of each case.
17 Q You told me after an HIE event how
18 long it takes before maximal cerebral edema
19 is the 48 to 72 hours.
20 Do you also know how long it takes
21 before the cerebral edema starts to decrease?
22 A Again it maximizes at 48 to 72
23 hours and starts to decrease thereafter.
24 Q Do you have an opinion to a
25 reasonable medical probability when will it
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2 completely be gone?
3 A That’s hard to say because I’ve
4 seen it persist for upwards of eight to ten
5 days. The usual clinical signs that you see
6 of cerebral edema that are often described in
7 the literature for definite cerebral edema
8 would suggest between four and eight days.
9 Q On occasion, though, some of those
10 20 persisted as much as eight to ten days, as
11 opposed to the four to eight?
12 A That’s correct.
13 Q Is there any correlation, the more
14 severe the HIE insult the longer the cerebral
15 edema will be present before it’s completely
16 gone?
17 A I’m not aware of any.
18 Q Would that also be in the
19 radiological literature you’re talking about
20 that cerebral edema is gone eight days after
21 the HIE insult?
22 A Honestly, that part of it, I don’t
23 remember. I know that’s what I’ve seen
24 clinically, and typically what’s described is
25 the peak time of it.
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2 I don’t know if the duration is
3 really described well.
4 MR. GERSHON: Let me do a couple of
5 other things, and I’m going to run. I
6 apologize again.
7 Q I know the ACOG criteria. Sir, the
8 20 kids that you have seen with HIE, did they
9 have the four ACOG criteria?
10 A I think virtually all of them did.
11 I can’t remember any that did not.
12 Q Are you aware of any medical
13 literature out there that says you can have a
14 kid with HIE with less than the four ACOG
15 criteria?
16 A There are some anecdotal case
17 reports out there that people have brought
18 up, so I am aware of some.
19 Q Do you put much stock in those
20 authors who have written articles that say
21 you can have less than four and still qualify
22 for HIE?
23 A I read it, but it’s really not what
24 I see. There are some people that I respect
25 that have suggested they have seen some cases
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2 and there aren’t a lot of people, I don’t
3 think, who have done very much in this area
4 or have looked at it very well.
5 I think the vast majority of the
6 literature would support the four factors
7 that are needed.
8 Q Who are the people that you respect
9 who say you don’t need the four factors?
10 A I remember seeing something that
11 that same group — Jeff Phelan and Gilmartin,
12 Korst, etcetera — I think they described a
13 couple of infants that did not have
14 multisystem organ failure.
15 Q Do you respect their work with
16 respect to the nucleated red blood cells but
17 do not respect their work with respect to the
18 four factors of ACOG?
19 A No, that’s not what I said.
20 I said I do respect their work, but
21 it’s not what I see and it’s not what most
22 other people see.
23 Q Do you know of any medical
24 literature that says when you need multiorgan
25 damage to qualify for HIE, that kidney damage
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2 must be one of the organs?
3 A I know the literature would suggest
4 that clearly is the organ most commonly
5 damaged, that’s found to be damaged when the
6 brain is injured.
7 And again one person who comes to
8 mind is Jeffrey Perlman’s work.
9 MR. GERSHON: Off the record.
10 (Whereupon, a discussion was held
11 off the record.)
12 (Whereupon, a recess was taken at
13 2:00 p.m. and the Deposition continued
14 at 2:38 p.m.)
15 FURTHER EXAMINATION
16 BY MR. GERSHON:
17 Q Let’s talk about this increased
18 tone after birth, sir.
19 Are you aware of any medical
20 literature that says with HIE you don’t get
21 increased tone right after birth?
22 A Yeah. Most of the articles that
23 talk about tone describe that, and that’s
24 clearly in Volpe’s text.
25 Q Can you name me one article, sir?
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2 A Not off the top of my head.
3 Q You said there’s no necessity for
4 mechanical ventilation after birth; correct?
5 A Immediately in the first hours
6 after birth, yes.
7 Q Did they eventually go to
8 mechanical ventilation?
9 A Yes.
10 Q Explain to me why, if the HIE brain
11 damage occurred in the time period that you
12 say it occurred, why wouldn’t there be
13 immediate mechanical ventilation after birth?
14 A The usual cause for immediate
15 mechanical ventilation in an acutely injured
16 child is the — two things.
17 One, they would have persistent
18 pulmonary hypertension or they would just not
19 breathe at all or minimally on their own.
20 This child was doing fine.
21 You see that when children are
22 recovering, however, this child had apnea,
23 periods of not breathing, roughly 12 hours of
24 age or so.
25 And that was the reason for which
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2 they mechanically ventilated the child.
3 Q I’m sorry. They did not
4 mechanically ventilate the child for the
5 brain damage that occurred in the time period
6 you say it already occurred?
7 THE WITNESS: I’m not
8 understanding your question.
9 Q You say the HIE occurred in that 48
10 to 84 to 96 hours before birth.
11 A Sure.
12 Q But the reason the child was
13 mechanically ventilated was not because of
14 that brain damage, you’re saying?
15 A No, I’m not saying that.
16 Q It was because of the brain damage?
17 A The child had spells of apnea, not
18 breathing, that were likely due to the brain
19 injury suffered several days before.
20 Q Then why didn’t the child have
21 those apnea problems right at birth and get
22 the mechanical ventilation right at birth?
23 A Well, the child did not breathe
24 well at the beginning, as you know, and they
25 needed to do the bag and mask ventilation.
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2 And then had a period of time in which the
3 child didn’t need it.
4 I can’t explain why not.
5 Q If you can’t explain it, you can’t
6 explain it. Let’s see.
7 No decrease in glucose and decrease
8 in calcium right at birth; correct?
9 A In the hours after birth. In the
10 first day or two.
11 Q Did they ever go down?
12 A I don’t remember seeing them down.
13 Q Again is this one of those things
14 that you see in your experience of those 20
15 kids that were born with HIE, that there’s
16 decreased glucose and calcium?
17 A It’s something I both see in my
18 experience, and it’s something that’s
19 described in the literature.
20 Q Why wasn’t, sir, that one of the
21 fifth criteria of ACOG, that you’d see
22 decreased glucose and decreased calcium at
23 birth?
24 A I wasn’t part of the committees
25 that made that up, so I don’t know.
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2 Q Also no decreased platelets, and
3 the lymphocytes also were not as you
4 expected; is that correct?
5 A That’s correct.
6 Q Is that the type of thing that
7 again you saw in those 20 kids with HIE that
8 you’ve seen over the last ten years?
9 A That’s correct.
10 Q Again you don’t know why that
11 wasn’t included in the ACOG criteria, but you
12 know you’ve seen it all the time?
13 A Those are tied in to the effects on
14 various kinds of organ systems, although you
15 wouldn’t call some of those true failure or
16 not working; but they clearly reflect injury
17 of different other — of other different
18 organ systems.
19 So the ACOG AEP guidelines globally
20 may actually include those.
21 Q Which organ systems, sir, involves
22 decreased glucose, decreased calcium,
23 decreased platelets, and the lymphocyte
24 problem?
25 A Those are multiple different organ
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2 systems.
3 Q Give me the organ systems, please.
4 A For your platelets, that’s clearly
5 your blood-producing organs, either your bone
6 marrow; or actually in newborns or fetuses
7 it’s going to include your liver and some
8 other areas in your bodies too that produce
9 cells.
10 Calcium reflects bone and kidneys.
11 Q Platelets and lymphocytes?
12 A I already said, those are your
13 blood-producing elements.
14 Q Oh, I see. Okay. Would we say
15 here that there was damage to the
16 hematopoietic system?
17 A No. You would say that there was
18 not because you did not have the platelets
19 down.
20 Q That’s the only way one can tell
21 there’s damage to the hematopoietic system;
22 correct?
23 A That’s, you know, the one that I
24 think everybody that I see and that everybody
25 writes about.
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2 Q Again you don’t know an article off
3 the top of your head; right?
4 Or is that in Volpe again?
5 A I think most reviews of this kind
6 of injury will bring that up.
7 MR. GERSHON: Great.
8 Let’s talk a little bit about
9 your medical/legal work, sir.
10 Q This is not the first case you’ve
11 reviewed; correct?
12 A That’s correct.
13 Q How many cases have you been
14 reviewing over your career?
15 A I’ve only been doing this for
16 roughly ten years, and I’ve probably reviewed
17 a total of 60 cases.
18 Q What’s the breakdown, plaintiffs
19 versus defendants?
20 A Roughly 40 percent plaintiff, 60
21 percent defendant.
22 Q You’ve given subsequent
23 depositions, I assume?
24 A Yes, I have.
25 Q How many would you say?
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2 A I would estimate about 30 or so.
3 Q Breakdown, plaintiff versus
4 defendant?
5 A Same breakdown, 40 percent
6 plaintiff, 60 percent defendant.
7 Q How about testifying at trial?
8 A I would say I’ve probably testified
9 maybe about 10 or 12 times at trial.
10 Q Same breakdown, plaintiff versus
11 defendant, sir?
12 A I think so, yes.
13 Q Any plaintiff deposition or
14 plaintiff trial testimony where you’ve agreed
15 that there was birth asphyxia as a result of
16 some delay in delivery of the child?
17 A Yeah. And I’m just trying to
18 remember the particulars. I would say that
19 there is at least a couple. But I’m just
20 trying to remember the ones.
21 I think one was a ruptured uterus
22 case. I don’t remember the particulars about
23 the others.
24 Q Where was the ruptured uterus case
25 from?
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2 A I believe it was in Virginia.
3 Q Who was the plaintiff’s attorney
4 who hired you?
5 A First name is Harry, and I forget
6 his last name. I think he’s in the Leesburg
7 area.
8 Q He’s a plaintiff medical
9 malpractice attorney; right?
10 A Yes. Oh, Barlow, B-A-R-L-O-W.
11 Q How long ago was this, sir?
12 A I think that went to — actually
13 ended up going to trial a year ago.
14 Q Again you don’t remember the other
15 plaintiff’s case where you’ve testified that
16 injuries due to birth asphyxia are due to
17 delay in delivery?
18 A Not that come right to mind.
19 Q Of the 60 or so cases that you
20 reviewed, how many of them have you given
21 testimony in where you’ve not applied
22 causation to the defendant, claiming that the
23 brain-damaged child was not due to delay in
24 delivery or asphyxia due to delay in
25 delivery?
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1 ________, M.D.
2 A Oh, I would imagine out of the
3 roughly 35 or 40 cases that were defendant
4 cases I’ve worked on, probably two thirds or
5 more that testimony was along those lines.
6 Q I see. Do you know how defense
7 attorneys got word that you were available to
8 testify with such frequency in such type of
9 cases?
10 A I’m presuming it’s word-of-mouth.
11 Q Have you ever worked with Ken
12 Armstrong or anyone in his firm before?
13 A No, I haven’t.
14 Q Is he the one who got you to look
15 at this case?
16 A One of the attorneys in his firm
17 did.
18 Q Do you know how they got your name?
19 A I do not.
20 Q Did you work with any of the other
21 defense attorneys or their firms in this
22 case?
23 A I’m not familiar with any of
24 their — of the other attorneys or their
25 firms.
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1 ________, M.D.
2 Q Do you have any cover letters of
3 the material you were sent to review in
4 connection with this case?
5 A Yes, I do.
6 Q Do you have them with you?
7 How many are there?
8 A There are approximately four.
9 MR. GERSHON: If we can make that
10 Plaintiff’s next exhibit, please, at
11 the end of the deposition.
12 Q Sir, have you ever been sued for
13 medical malpractice?
14 A No, I have not.
15 Q As far as you know, has any
16 hospital you have been associated with been
17 sued for medical malpractice, alleging
18 malpractice on your behalf but you were not
19 personally named in the lawsuit?
20 A Not to my knowledge.
21 Q Do you own any current textbooks in
22 neonatology? I know we have been talking
23 about Volpe a lot, but how about neonatology?
24 A I own several.
25 Q Which ones do you look at
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1 ________, M.D.
2 frequently?
3 A I look at a bunch of them. And I
4 guess the Spitzer textbook, and the other
5 one’s Avery’s, edited by Ballard and Toisch.
6 I also looked at the one Fanaroff
7 and Martin edit. And I also use Gordon
8 Avery’s textbooks. I think those are really
9 the four major ones.
10 Q Super.
11 Have we fairly covered the opinions
12 you intend to render in this case?
13 A I think as a generalization that
14 we’ve covered most of them.
15 There’s one thing that we have not
16 that I want to briefly comment on perhaps.
17 Q Go ahead.
18 A That’s it was noted after the child
19 was born, that the umbilical cord was a lot
20 thinner than expected.
21 I believe both Dr. _______, the
22 neonatologist, as well as — I think it was
23 Dr. _________ that was the pediatric
24 neurologist that noted that.
25 And that could be in keeping with
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1 ________, M.D.
2 some chronic injury that had been ongoing in
3 utero with the baby too.
4 I think that’s an important point
5 at least to bring up.
6 Q Chronic, as in when?
7 A Who knows. It had been going on
8 for the cord to have that appearance, had
9 probably been going on for a period of at
10 least many days and perhaps even longer.
11 MR. GERSHON: Well, we’re not
12 going to end on that note obviously.
13 Q To a reasonable degree of medical
14 probability, are you saying this thin cord
15 now caused the HIE in this child?
16 A No. But it may have been
17 associated with it.
18 I can’t say to a reasonable degree
19 of medical probability, though.
20 Q You cannot say it to a reasonable
21 degree of medical probability; correct?
22 A That’s correct, that it was the
23 sole cause.
24 Q Not even sole. Can you say to a
25 reasonable medical probability, it was any
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1 ________, M.D.
2 cause? Or is it just a possibility at this
3 point in time?
4 A I would say right now that it’s a
5 possibility. Strong possibility, but that’s
6 where I would have to limit it.
7 MR. GERSHON: Super. Then I’m
8 going to limit the deposition now.
9 I have no other questions for
10 you. I thank you for your time.
11 THE WITNESS: You’re welcome.
12 MR. ARMSTRONG: Thank you,
13 Dr. ______. I will be in touch with
14 you shortly.
15 (Handwritten notes, List of
16 documents reviewed, Curriculum Vitae,
17 Cover letters were marked Plaintiff’s
18 Exhibits 1 to 4, respectively, for
19 identification, as of this date.)
20 (Time noted: 2:55 p.m.)
21
22
23
24
25
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1
2
3 A C K N O W L E D G M E N T
4
5 I, ________, M.D., hereby
6 certify that I have read the transcript
7 of my testimony taken under oath in my
8 deposition of January 25, 2001; that the
9 transcript is a true, complete and
10 correct record of what was asked,
11 answered and said during this deposition,
12 and that the answers on the record as
13 given by me are true and correct.
14
________________________
15 ________, M.D.
16
Subscribed and sworn to
17 before me this ____ day
of _____________, 2001.
18
_________________________
19 NOTARY PUBLIC
20
21
22
23
24
25
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1
2
3
I N D E X
4
WITNESS EXAMINATION BY PAGE
5
________, M.D. Mr. Gershon 4
6
7 E X H I B I T S
8 PLAINTIFF’S EXHIBITS
FOR IDENTIFICATION PAGE
9
1 Handwritten notes (8 sides) 41
10
2 List of documents reviewed (3 pages) 41
11
3 Curriculum Vitae 41
12
4 Cover letters to 10-19-00, 8-1-00, 41
13 8-21-00, 1-18-01
14 REQUESTS: PAGE LINE
15 Article(s) that state that it’s 22 2
only when it’s maximal cerebral
16 edema that you cannot see the
ventricles
17
18
19
20
21
22
23
24
25
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1
2 C E R T I F I C A T E
3
4 STATE OF NEW YORK)
5 ss:
6 COUNTY OF SUFFOLK)
7 I, LINDA CIPRIANO, a Shorthand Reporter
8 and Notary Public in and for the State of
9 New York, do hereby certify:
10 That the testimony of ________, M.D.
11 was held before me at the aforesaid time and
12 place.
13 That said witness was duly sworn before
14 the commencement of the testimony and that
15 the testimony was taken stenographically by
16 me and is a true and accurate transcription
17 of my stenographic notes.
18 I further certify that I am not related
19 to any of the parties to the action by blood
20 or marriage and that I am in no way
21 interested in the outcome of this matter.
22 IN WITNESS WHEREOF, I have hereunto set
23 my hand this 29th day of January, 2001.
24
____________________
25 LINDA CIPRIANO
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1
2 E R R A T A S H E E T
3
DEPOSITION OF: ________, M.D.
4 RE: Driscoll vs. ________ Adventist
Hospital, Inc.
5 DATE TAKEN: January 25, 2001
6 PAGE LINE # CORRECTION REASON
7 _____ _____ ___________________ _______
8 _____ _____ ___________________ _______
9 _____ _____ ___________________ _______
10 _____ _____ ___________________ _______
11 _____ _____ ___________________ _______
12 _____ _____ ___________________ _______
13 _____ _____ ___________________ _______
14 _____ _____ ___________________ _______
15 _____ _____ ___________________ _______
16 _____ _____ ___________________ _______
17 _____ _____ ___________________ _______
18 _____ _____ ___________________ _______
19 _____ _____ ___________________ _______
20 _____ _____ ___________________ _______
21
_______________________
22 ________, M.D.
23 Subscribed and sworn to
before me this ____ day
24 of _____________, ____.
25 _________________________
NOTARY PUBLIC
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