Marissa Simpson, an infant, v. Roberts, Terry and Southwest Virginia Physicians for Women, Inc., Case No. CL04-213, Circuit Court for the City of Roanoke, Virginia, May 16, 2012
This was a malpractice case for a baby who suffered brain damage at birth from having lost a large portion of her blood in the hours preceding birth after the obstetrician stuck a needle in the mother’s uterus for an amniocentesis to see if the baby was mature enough to induce labor. The witness was an obstetrician who specialized in high-risk pregnancies, James Christmas of Richmond, VirginiA. In the direct examination, he had testified that all of his expert witness testimony had been for defendant doctors in the prior decade or so. That gave me an idea of where to start the cross-examination. We went on from there to focus mostly on the informed consent issues for two points in time: the decision of whether to do the amnio and the later decision after the amnio when the baby started showing distress to hold off on an immediate Cesarean section and instead do an induction of labor.
BY MR. MALONE:
Q. Did you ever wonder, Dr. Christmas, why your phone never rings from plaintiffs’ lawyers?
A. It never crossed my mind, no.
Q. It didn’t possibly cross your mind that you were one of those guys who could always be counted on if there is any issue where it might be a little bit of ambiguity that you would slice it for the healthcare provider? That didn’t ever occur to you?
A. With all due respect, I swore to tell the truth about three hours ago, and I take that very seriously.
***
Q. Let’s talk about choices for the patient. I thought you had told us in your deposition that in terms of making a recommendation for Marsha Simpson of do we go to early delivery preceded by an amnio or not, you would have been on the fence for her.
A. I think exactly what I said, I don’t remember the exact words, but I said that I don’t know what I would have done and I couldn’t make that comment without actually seeing the patient.
Q. Well, let me quote you exactly what you said.
MR. BATTEN: Do you have a copy for him?
MR. MALONE: I have a lousy copy.
MR. PEAKE: I have got a good one. This is January 22, 2009?
MR. MALONE: Yes.
MR. BATTEN: We have an excellent copy.
Mr. MALONE: Great.
THE WITNESS: Do you know what page we are on?
BY MR. MALONE: Yes, we are on page 40, line 1.
THE WITNESS: Page on the portion of 40 and 41 or page of the deposition?
MR. PEAKE: The deposition.
THE WITNESS: Of the deposition, okay. I won’t lose your place.
MR. MALONE: It usually works. Could I just have one second?
THE COURT: Sure.
BY MR. MALONE:
Q. “In regards to Marsha Simpson, if I am correctly interpreting what you are saying to me, it is that you don’t have enough information because you are unable to examine the patient to tell me what you would have recommended to her as a course of treatment. Is that a fair characterization?”
Your answer, “Well, it may be a fair characterization, but in point of fact the vast majority of the patients that I see in this circumstance, well, not the vast majority but a substantial number of patients that I see in this circumstance, I don’t necessarily make a recommendation. I give the patients what both of the options are and I allow them to sort of make a choice between the two. But there are certainly some that I am very directed in my counseling about and there are others who I tend to be fairly non directive.”
A. Right. That’s kind of what I just said.
Q. Okay. Now, my point, though, is you don’t know what you would have necessarily recommended for her, and the point is you would have given her some choices.
A. I may or I may not have. If you look at what I said before that, you, Mr. Krasnow, asked me, “If Marsha Simpson had been your patient, what would your recommendation have been?” I don’t know that I would have, I don’t know what my recommendation would have been without seeing her and without standing at the bedside in 2001. And the medical records, voluminous as they are, do not necessarily provide the entire picture that you would have the clinician standing at the bedside. In many patients, like what is described in the medical records, I would have a conversation with the patient regarding what I just described a few minutes ago with you. You for these reasons have an increased risk of late-term stillbirth. You, because of gestational diabetes, have an increased risk of delayed fetal lung maturation. Your glucose control looks like it has improved since 34 weeks, and that is good. Whether or not that totally normalizes the risk of stillbirth that is incurred because of poor glycemic control early in the pregnancy is an unanswerable question. And as such, you and I can figure out what is the best thing for you. We would go into a discussion about all of those aspects and make a decision. There are times when I make specific recommendations and I would say to somebody, Based on all of the issues in this case, I would rather see you undergo amniocentesis and undergo early induction.
Q. What I got from those two quotes, putting them together, and you correct me if I am wrong, is that studying her records there is no clear cut, Man, she needs to go straight to early induction preceded by amnio. At least that is my —
A. Based on that information, that is, I don’t know that there is a mandate to do that.
Q. Okay. Options, there are options.
A. Again, but, if a clinician taking care of the patient looks at the patient and makes a clinical assessment that says I believe, I believe that the risk of stillbirth outweighs the risk of effective management, for a physician to say, Oh, do whatever you want, is irresponsible.
Q. No, no, we are not talking about that. We are talking about having a dialogue with a patient and giving the patient the information so the patient can make an intelligent choice. Isn’t that what medical standards require in the Commonwealth of Virginia?
A. To a certain degree, yes. But I think to —
Q. To —
A. No.
Q. Only to a certain degree?
A. Yes, only to a certain degree. I think when you, to allow a patient to make a bad decision and to not imply to the patient that that is a bad decision is inappropriate.
Q. Well, let me show you how I had put it earlier, how one of the other experts had put it earlier.
MR. PEAKE: Your Honor, he cannot and I object to showing testimony from, we don’t know where it is from.
MR. MALONE: This is cross examination.
MR. PEAKE: You don’t get to show testimony.
THE COURT: You can ask him if agrees with the statement or not.
BY MR. MALONE:
Q. “If there are reasonable options, the obstetrician must inform the patient so the patient can make an intelligent choice.”
A. Define “reasonable.”
Q. Reasonable options, you —
A. You just asked me to define a word. I am asking you to define reasonable. That is the —
THE COURT: Do you agree with that statement or not?
THE WITNESS: I agree with that statement.
BY MR. MALONE:
Q. Okay. So, because it is the patient’s choice, it is the patient’s life, they are the ones that have to live with it. Right?
A. To a degree I agree with that.
Q. Okay. And so, you had told us also in your deposition, that if, let me back up a second. You showed us the informed consent form or Mr. Batten did, showed us the informed consent form. She signed it.
A. Okay.
Q. I want you to plug in one additional fact, that the patient read the form and signed it because she had not been presented any options and she thought the amnio was a test that she had to have. Are you willing to assume that?
A. Hypothetically or in this case?
Q. Hypothetically and in this case because she testified to this, and you can’t judge credibility one way or the other, can you?
A. If that is what she testified to, then I have no way to contradict that. I can only demonstrate that the form says that she understood.
Q. Right. And plenty of patients —
A. And she signed the form.
Q. Sure. And plenty of patients think they understand because they trust their doctor —
A. Where is that at?
Q. I am asking you a question.
A. You just told me something.
Q. I am trying to ask you a question, sir.
A. Okay.
Q. Isn’t it true that plenty of patients trust doctors enough that they assume that the doctor is going to give them the options if there are options.
A. I don’t know whether that statement is true or not.
Q. Well, we will let the jury judge that, then. The point is didn’t you also tell us in your deposition that if there had been no presentation of options, amnio versus —
A. Right.
Q. — expectant management, and by the way, expectant management, watchful waiting —
A. Right.
Q. — would have been a reasonable option for this patient?
A. It would have been an option for this patient. I think that in Dr. Roberts’ testimony that the —
Q. We don’t get to quote Dr. Roberts.
A. No, you are asking me if I believe a discussion occurred and in Dr. Roberts’ —
THE COURT: He is not asking you that at all. You are not to comment on that.
THE WITNESS: Okay.
BY MR. MALONE:
Q. So the point is that didn’t you also tell us that if the two options of watchful waiting versus straight to amnio, do not pass go and then we will have an elected induction had not been presented to this patient, that would violate the Virginia standard of care?
A. Correct.
Q. You did say that and you stand by that testimony?
A. I agree with that.
Q. Okay. So that is just an issue that the jury is going to have to decide who is right on this. If Dr. Roberts just told her, This is what we are going to do, I am going to do, I am going to put you to early induction and I am going to test the lungs ahead of time, and he didn’t give her options, that would be wrong and that would violate the standard of care if that is what they conclude. True?
A. That is true.
Q. Okay. And similarly, let’s talk about another critical choice time. 10:30 A.m., mom has had her biophysical profile. It has come back 4 out of 8. By the way, just one tiny little segue here, that business about the fetal breathing, the quote you were reading from talked about loss of variability and fetal breathing being the first to go.
A. Well, I don’t have the quote sitting in front of me. My clinical experience, having reviewed literally thousands of biophysical profiles, has to do with fetal breathing.
Q. Let’s just look at the quote to make sure we have it right.
MR. BATTEN: Of course I have it right here for you, Pat.
MR. MALONE: Thank you.
BY MR. MALONE:
Q. This was your man Callen, totally reliable authority. Right?
A. Keep going.
MR. BATTEN: Objection to the commentary, Your Honor. Is there a question?
THE COURT: He’s getting to it. Objection overruled.
BY MR. MALONE:
Q. “Data have demonstrated in fetal acidemia,” that is the acidosis we are talking about, “The first biophysical activities to become compromised are fetal heart rate, reactivity, and fetal breathing.”
A. Correct. That is what I said.
Q. I thought you said fetal breathing, but —
MR. BATTEN: You might want to read this one, too.
BY MR. MALONE:
Q. In this case, this patient had lost at least some, and maybe not all the time, had lost fetal heart rate reactivity, didn’t she?
A. You are confusing variability and reactivity. But in point of fact, my understanding of that, everyone I know’s understanding of that, my own clinical experience with that would suggest that fetal breathing is the most important part of the sonographic portion of a biophysical profile.
Q. Actually, you know, there is this thing called an abbreviated biophysical profile. Right? You are familiar with it?
A. There are a couple of different iterations of it.
Q. And the abbreviated one uses two things: It uses amniotic fluid and fetal heart rate. True?
A. That is true. There is also an abbreviated biophysical profile test that says if
fetal breathing movements are identified, you don’t need to do the rest of the study.
Q. Okay. But there are others that say, just like I said, which is if you want to go with a couple of things —
A. Do a nonstress test and amniotic fluid index.
Q. Right. And Dr. Terry thought she didn’t pass the nonstress test at 9:20. That is why he ordered the biophysical profile. Right?
A. Correct.
Q. Was he wrong?
A. No. As I said before, I think it was an imminently appropriate decision not to send her home.
Q. Okay. But now we reach the decision point at 10:30 in the morning.
A. Right.
Q. And there were two reasonable options then, weren’t there, sir?
A. Well, I don’t know that I would say there were two reasonable options. I think there were two options. Well, I think there were three options.
Q. Reasonable options, let’s stick with reasonable options.
A. I agree it would have been unreasonable to send her home.
Q. Actually, let me just back up a second. I thought I wrote down — and I wrote a bunch of little notes here — I thought I wrote down that one thing you said on direct examination that at 10:30 A.m. a Cesarean section was, quote, absolutely not indicated.
A. I don’t recall if I used the word “absolutely,” but I have no problem with the word absolutely. That is a Cesarean section at 10:30 was not, the benefits of a Cesarean section based on the data that was available at 10:30 were far outweighed by the risk of Cesarean section. And so I think at that time to have told the patient, Oh, we ought to deliver you by C-section or you can deliver either by C-section or vaginally, and either way is a reasonable option and there is not a hierarchy between the two, would have been inappropriate and outside of the standard of care.
Q. Okay. Now you are totally changing your deposition testimony. Do you have your transcript there?
A. Sure.
Q. Look at page 90.
A. Nine zero?
Q. Yes, sir.
MR. BATTEN: Objection to just the announcement of comments. Can he just ask questions, Your Honor?
BY MR. MALONE:
Q. I am sorry. “What were the treatment options for Marsha Simpson and her fetus following the biophysical profile?” Answer, “The treatment options were” —
A. Where are you?
MR. PEAKE: Page 90, line 10.
THE WITNESS: I got it, okay.
BY MR. MALONE:
Q. Are you there? “The treatment options were to do nothing, which I think would have been totally inappropriate, to deliver her at that point by Cesarean section, to deliver her by induction of labor, or to monitor her in an open-ended fashion without a plan for delivery.”
Question, “Would a decision to proceed with a C-section at that point in time have been within the standard of care?”
The answer, “I believe it would have been.”
A. That is a different question than what I you just asked me.
Q. Question, “So if I am interpreting what you have been telling me, Doctor, the viable, the best treatment options were either delivery through induction or delivery through Cesarean section?”
Answer, “That’s my opinion.” And then he asks you about who made the decision to proceed with induction, and you said Dr. Terry?
A. That is a different question than what you asked me a minute ago. You didn’t ask me a minute ago if it would have been in the standard of care to deliver her by Cesarean section. Twenty-five percent of babies born in the United States are delivered by Cesarean section. It is kind of hard to ever look someone in the eye and say it would have been absolutely outside the standard of care to do a Cesarean section.
Q. No, sir. No, sir.
A. Let me finish my answer.
Q. Okay.
A. If the difference, or the question you asked was, I think was would it have been appropriate.
Q. I asked you would it have been a reasonable option.
A. Okay.
Q. I thought you said —
A. That is a different thing from the standard of care, would it have complied with the standard of care.
Q. Let’s not quibble with each other. You said right here that the best treatment options were either delivery through induction or delivery through Cesarean section. Answer, “That is my opinion.”
A. That is my opinion today.
Q. So those —
A. Let me finish my answer.
Q. A reasonable —
A. Let me finish my answer. Those are the best two options.
Q. You are just an arguer.
THE COURT: All right, Gentlemen.
THE WITNESS: The best two options were induction or Cesarean section.
THE COURT: Hang on a minute, Doctor. Just state your next question.
BY MR. MALONE:
Q. Let me state my question, sir.
A. Okay.
Q. So if the two, if the best treatment options were either delivery through induction or through C-section at 10:30 in the morning, the patient deserved to know that.
A. Because those were the best two of the four listed does not mean that they were equal in any shape or form.
Q. I didn’t ask that. I asked if the patient deserved to know.
A. You told me the patient deserved to know. I didn’t realize you were asking me. Yes, there are probably some issues or there are probably, I can’t imagine having a discussion with a patient about, in this clinical circumstance, where the
discussion didn’t, I mean, the options are kind of implied. And so I don’t know, you know, we need to get you delivered, I don’t think that there are many patients that don’t realize there are two ways to get delivered. And the discussion that I have with the patient, if I thought a Cesarean section was clearly the best way to deliver the patient, I would tell the patient that. If I thought that induction of labor was the better of those two options to deliver somebody, I would tell them that.
Q. I thought you told us somewhere in your deposition that somebody needed to, whoever it was, somebody needed to tell this patient, Marsha Simpson, “We have options here and here is what they are” at 10:30 in the morning.
A. I don’t know if I said at 10:30 in the morning. I think whenever you are talking to somebody about delivering them, I don’t know how you can have a discussion with somebody where the issue of options doesn’t come out, I mean —
Q. Well, here is a way you can do it. If you just tell the patient: We are going to induce labor, Mrs. Simpson. Hi, I am Dr. Lambert.
A. I don’t know that that conversation did or didn’t occur.
Q. Okay. If that is the only way it happened, and she wasn’t offered the option, well, let me put it this way, 10:30 in the morning or 11, in that timeframe: Mrs. Simpson, we have had this biophysical profile, the score is 4 out of 10. You know, there are some things going on here. Some people might think, and there are two options, we can go for an induction, although your cervix isn’t very ripe and everything. Or we can go for an immediate C-section if that is what you would like to do. That is something that should have been —
A. I don’t know.
Q. Let me finish my sentence and then you get to finish your answer. That is something that should have been presented to this patient.
A. Not the way that you just stated it should be presented.
Q. Or some way, some way —
A. I don’t know that it wasn’t.
Q. Well, I am asking you.
A. And I can’t imagine a circumstance in my 30 years of practicing, I have yet to have a patient that didn’t understand there were two possible ways to get delivered. I have not seen one.
Q. Okay. So your —
A. So no, so I would, if I felt, as a clinician, that Cesarean section was a much better option, I would say: I think we need to do a Cesarean section. I believe that the option of induction and labor that everyone knows is there, if I thought that induction was a significantly better route to go, I really would be doing, not doing my job for the patient if I didn’t say: I think we ought to do an induction. And I don’t know that I would sit there and line up every potential risk or complication of Cesarean section.
Q. Because, of course, nobody lined those up for her, did they?
A. I don’t know the answer to that.
Q. Yes. By the way, that list that Mr. Batten was reading from about all of the risks of C-section and whatnot, that didn’t say one word about the baby, did it?
A. I don’t know what list he was reading from.
Q. Well, let’s take a look at it.
MR. BATTEN: I didn’t use it. I read three things. You precluded me from asking about it.
BY MR. MALONE:
Q. The answer that you gave about all of the risks of C-section, like blood clots in the mother’s leg and wound infection and stuff like that, none of those were counterbalanced by you in your testimony to say, Well, what about the baby? You didn’t consider that when you were talking about the risk of C-section.
A. Well, I mean, you can’t have any discussion with a patient without involving both sides of that equation. That is not, that is not possible. In clinical practice that can’t happen.
Q. It can’t happen and meet the standard of care is what you are trying to say.
A. No, no, no. What I mean is, again, every one understands A, there is a baby; and B, there is a uterus and there is a vagina and there is an abdomen. There are two ways a baby can come out.
Q. Okay. Let me ask you —
A. And, were you going to let me finish?
Q. It sounds like we are going to get another talk. Can I just ask my next question?
MR. BATTEN: Objection.
THE COURT: Overruled.
BY MR. MALONE:
Q. Have you ever known a patient who is in pain, severe pain, what someone could assume the lady is in severe pain from, cramping pain from something going on inside her uterus, she can’t tell. And she is presented the option now that there are some parameters that don’t look so good on this baby. We could induce you, we could do an immediate C-section just to make sure that the baby is okay. Most mothers —
A. That might be horrendously irresponsible.
Q. Please, sir, I will finish my question if you don’t mind. Most mothers presented the option of taking risks on themselves versus making absolutely 100 percent sure that we get a good safe baby out now will go for the baby.
MR. BATTEN: Object to the form.
THE COURT: Overruled.
THE WITNESS: It would be completely and totally irresponsible.
BY MR. MALONE:
Q. What I am trying to say is they will opt for taking risks on themselves if they think that they will, that they can be reducing risks to their baby.
A. It would be completely —
MR. BATTEN: Same objection.
THE WITNESS: — and totally irresponsible to ever tell a patient —
THE COURT: Overruled.
THE WITNESS: — that if I do a Cesarean section now that I can guarantee you this baby is going to be perfectly healthy. That would be absolutely irresponsible.
BY MR. MALONE:
Q. I am not asking you —
A. That is what you just said.
Q. I never said, I don’t think I said guarantee.
A. You said 100 percent likelihood the baby would be fine right now and that is coercing a patient.
Q. What I am trying to say is there is a chance there is something wrong with the baby, it could hurt you if we did a C-section, you know, you would get an infection, blah, blah, blah, blah. Do we want to opt on the side of going for the baby now and getting whatever the best baby we can get right now?
A. I think that’s, as an obstetrician, that is your obligation to be making that assessment contemporaneously about what is the best thing for the patient. I don’t think —
Q. And then to communicate —
A. No, I do not think that it is appropriate if the patient has numerous risk factors for surgical delivery and there is not a clear cut indication for surgical delivery to say, “Well, what the hell, let’s do what you want.” I think that is not practicing responsible medicine.
Q. Okay. All right. Let me go to two other quick topics and then we are done. You told us something about Dr. Roberts obtaining dark blood.
A. I don’t remember the exact. If somebody has the labor and delivery sheet I can tell you what it says.
Q. No, Dr. Roberts, the amnio doctor.
A. Right.
Q. He obtained dark blood. It is not in the amnio record. You know that of course.
A. Right. I have read so many records in this case, trying to remember which piece of information came from where.
Q. Trust me on that. But here is the question. If, if he got dark blood, that is something that needs to be moved on right then and there.
A. Not necessarily.
Q. That is what you told me in your deposition.
A. Put it in context.
Q. All right. Let’s take a look. Hang on a second.
A. Thirty-five.
Q. Thirty-four and 35?
A. Okay.
Q. Question, “Have you ever discovered old blood doing an amniocentesis?”
Answer, “More than a dozen.”
Question, “What did it mean to you?”
Answer, “It meant that there had been bleeding into the amniotic cavity.”
Question, “When you discovered old blood, does that indicate that the fetus may be at increased risk?”
Answer, “Oh, yeah.”
Question —
A. I don’t know that I emphasized it like that.
Q. Well, forgive my hyperbole. Maybe you said, “Oh, yeah.” “Oh yeah.”
Question, “Would that indicate that you probably want to expedite the delivery?”
Then first you said, “Not necessarily, because it is at all gestational ages.” And, but then the next question is, “Well, let’s assume that the fetus is viable, in other words, 37, 38 weeks.”
Answer, “Yeah, in a term patient.”
A. I have a different deposition.
MR. KRASNOW: This is the August deposition.
MR. PEAKE: I have got it.
MR. MALONE: This is our follow-up.
THE WITNESS: I couldn’t find where you were.
MR. MALONE: This is follow-up. You talked so much we had to meet with you twice.
THE WITNESS: That wasn’t at my request I promise you. And where are you?
BY MR. MALONE:
Q. And by the way —
THE COURT: Page 34 and 35.
BY MR. MALONE:
Q. Question, “Let’s assume that the fetus is viable.”
Answer, “Yeah.” “In a term patient.” “In this term patient, yeah, I think you would.”
A. Okay. I agree with that.
Q. Okay. So dark blood, if obtained, is something that should have been communicated to the hand-off doctor because it could be a sign something is wrong, we need to move on this baby.
A. Well, I think they did move on this baby. Induction of labor was expediting delivery.
Q. But we are leaving out a fact here, sir.
A. I don’t think that fact has profound relevance here.
Q. It has some relevance.
A. I don’t believe it does, actually, because as I said before, I actually believe all of this happened before then.
Q. By the way, this base excess thing you were talking about, if the base excess is, and you know base excess has to be calculated with hemoglobin plugged in.
A. Right.
Q. Okay. So if the base excess hadn’t had hemoglobin plugged into it, and it turned out it was not plus 7 but was minus 11, it would be right —
A. It is still above the cutoff.
Q. Minus 12, minus 11, you are within the range?
A. No, no, no, cutoffs are cutoffs.
Q. That is not the way it works in medicine, is it, sir? 98.6 degree temperature —
A. I am just telling you there is a body of research that defines acidosis significant enough to cause neurologic injury with a base excess of 12 or greater, period.
Q. Are you —
A. But that is what it is.
Q. Are you familiar with this statistical concept of standard deviations?
A. Absolutely.
Q. That means there is no absolute firm number, for example, like 98 —
A. No. When studies like this are done they are done keeping the standard deviation in mind. That is why you put the cutoff at a 95th percentile or 90th percentile.
Q. We have, there is a bell curve, we have ranges.
A. Cutoffs are placed in ranges to give people actionable points.
Q. Then I guess the final point, and this is a small one, but this sinusoidal-like pattern that we were talking about, you know Dr. Boehm and he is a —
A. I don’t know him well. I know who he is.
Q. Okay. You know he is one of the other expert witnesses for them?
A. Correct.
Q. Did you see his article on intermittent sinusoidal fetal heart rate, the clinical significance of it?
A. I don’t believe I have.
Q. Okay. You wouldn’t doubt that it is reliable authority if he wrote it and he is chosen to be the expert here, would you?
A. I don’t know that he would think that everything I have ever written is wholly reliable or I would think that everything he has ever written is wholly reliable.
Q. Well, let me just put it this way. Is it possible that you can get intermittent sinusoidal type of patterns and that that can be an indication that the baby is anemic?
A. I have never seen it, and I have taken care of well over 100 anemic fetuses every year, well over a couple of hundred.
Q. But if Dr. Boehm had written about it that way, you wouldn’t have any way to dispute it?
A. I would be happy to look at the context in which he wrote it, but I don’t —
Q. Sure.
A. Yes, I think the things that you can take away from this that make this sort of irrelevant, the mean hematocrit in these babies was 17 percent, which is what I spoke to earlier. That would comport with a hemoglobin concentration of about 5 grams per deciliter. This baby had a hemoglobin concentration of closer to 10 grams per deciliter.
Q. It was actually ultimately 8 once it got down.
A. I still have never seen a sinusoidal heart rate with a hemoglobin of greater than 5.
Q. The point though, sir, is that you can get intermittent sinusoidal patterns. That is the point of the article.
A. I have certainly never seen them. If you read the text of the article, every one of them became 8 of the 10, 8 of the 10 became continuous within 160 minutes. And so again, this doesn’t really matter because in this particular case there is not loss of variability within them so it is not really relevant to whether these were or weren’t intermittent sinusoidal fetal heart rates.
Q. His conclusion, this suggests that intermittent sinusoidal fetal heart rate may occur earlier in deterioration and that a continuous sinusoidal pattern appears only in severe stress in which the fetus has lost total autonomic control. Do you disagree with that?
A. I haven’t read the entire article – and that was written in 1999 — so I don’t know that I am going to agree with a single sentence out of it.
Q. Okay. Fair enough. A tiny point, but the blood gas of 7.24, did you say that you thought it was a cord blood gas or not?
A. I thought it was obtained from an umbilical venous catheter, but it was a newborn cord gas.
Q. Well, not exactly, it was 45 minutes after they had a bunch of oxygen.
A. Actually within an hour of life is considered a newborn.
Q. And if you want to talk about your rigid criteria, you know, 11 doesn’t count but 12 does count, well, they say it has got to be cord blood gas, don’t they?
A. Yes, the article on neonatal encephalopathy does.
Q. Okay. So if you are going to be rigid now —
A. That is fine. I have no problem with my rigid self looking you, the jury, and everyone else in the eye and saying based on that I am certain beyond a reasonable medical probability that the pH was not less than 7.2 at the time the baby was delivered.
Q. Okay, that is very fine. I thank you very much. I think is all I have.
MR. MALONE: Did I miss something, Jeff? I know the jury is aching for another question from me. Thank you, sir.
