The defendant slowly raised his eyes to Thaddeus, the look on his face saying he knew this wasn’t going to be an enjoyable ride.
“State your name.”
“Phillip Mounce Payne.”
“What is your age and occupation?”
“Fifty-seven. I work as an advisor on medical malpractice cases.”
Thaddeus studied his notes. “You’re a medical doctor?”
“I am. Retired now.”
“And why are you retired now?”
“Business decision.”
“Describe that business decision, please.”
“Objection!” said Morgana, rising from her chair. “Approach the bench to make a record?”
“Come,” said the judge.
Both attorneys crossed to the judge’s throne and leaned toward him to whisper. The court reporter moved her steno machine close in so she could make a record of what was being said.
“Miss Bridgman, state the basis of your objection,” whispered Judge Moody.
The attorneys whispered as well. Morgana said, “Your Honor, the question seeks to reveal to the jury that Doctor Payne is no longer able to procure medical malpractice insurance. Which is objectionable because, first, evidence of insurance coverage is never admissible in a tort case and, second, because his inability to procure physician’s errors and omissions coverage would be highly prejudicial where he’s on trial because of an alleged error or omission.”
The judge nodded. “Mister Murfee? How is the question relevant? Better yet, how is its relevance not outweighed by the significant prejudice it could cause this defendant?”
Thaddeus smiled. “Your Honor, the question seeks only relevant information. It does not seek insurance coverage information and can be answered without revealing the presence or absence of insurance. I was simply asking him to describe the business decision that he made which resulted in his no longer practicing medicine. He can be cautioned by his counsel not to go into medical malpractice insurance. Not only that, all questions prejudice one part or the other. They’re supposed to do that.”
“Very well,” said the judge, “I’m going to allow the question and overrule the objection. However, Miss Bridgman, we’ll send the jury out for an early morning break so you can confer with your client out of their view and caution him not to mention insurance when giving his answer to the pending question.”
“Thank you,” said both attorneys in unison, whereupon they re-took their seats.
The judge sent the jury out and exited the courtroom, unzipping his robe as he returned to his chambers. Thaddeus explained it all to Latoya, and while they were whispering, he could see that Morgana was explaining the ground rules to Dr. Payne as well. Then Thaddeus got back to reviewing his direct exam questions for Dr. Payne and Latoya went back to relieve John in holding Chase.
Ten minutes later the jury returned, court was reconvened, and they went back on the record.
Thaddeus set in again. “Doctor Payne, please explain to us the business decision that went into your ceasing the practice of medicine.”
“I retired.”
“You retired because you had been sued by two mothers for the birth injuries you cause their newborns, isn’t that so?”
“Objection!” said Morgana. “Counsel has been advised where this could potentially lead.”
“Your Honor,” said Thaddeus, “I only am asking about past or present lawsuits. Nothing else.”
“I’ll allow it,” said the judge. “Please continue.”
“Please answer the question,” said Morgana.
“My decision to retire had nothing to do with the lawsuits against me,” said Dr. Payne. But then he could be seen visibly losing the battle to shut up and leave it at that. He just couldn’t keep himself from adding, “And those lawsuits allege negligence against me that simply is untrue.”
Thaddeus’ head jerked up. “Let’s look at those lawsuits, since you opened the door. First, we have the mother who alleged in her case that her baby suffers cerebral palsy because you failed to properly monitor the infant during birth. Do you recall that lawsuit?”
“Yes.”
“And are you saying today that the baby doesn’t have cerebral palsy?”
“I’m not saying that.”
“So the baby was born with cerebral palsy?”
“That’s my understanding.”
“Doctor, where does cerebral palsy come from? What is its etiology?”
The physician poured a glass of water from the pitcher and took a long swallow. Clearly he was reviewing what he was about to say. “The disorder is characterized by a lack of oxygen during the time of a child’s birth. This lack of oxygen can lead to serious health problems very quickly, a baby could suffer cerebral palsy and permanent brain damage from mere seconds without air.”
“So CP is caused by a baby not getting enough air while being born, long story short, correct?”
“That’s the current thinking, yes.”
“Doctor, that’s not just the current thinking, that’s medical fact, correct?”
“Correct.”
“Now let’s please review some ways in which newborns can have their oxygen compromised. Will you help me do that?”
“Yes.” He took another drink.
“Potential causes of oxygen starvation during birth can include cord prolapse, correct?”
“Correct.”
“And cord prolapse is when the umbilical cord leaves the uterus before the baby, correct?”
“Correct.”
“Cord occlusion is another injury mode, is it not?”
“Yes.”
“Placental infarction? Tell us about placental infarction.”
“That would be where there a growth of extra tissue or lesions on the placenta.”
“What about a nuchal cord. What’s that?”
“That’s when the umbilical cord wraps around the newborn’s neck.”
“By the way, that’s what happened with our baby, Chase, is it not?”
“That was his presentation at caesarean section, yes.”
Thaddeus looked over at the jury. Many were busy scribbling notes. “What you’re telling us is that when you cut Latoya open, you found the baby Chase’s umbilical cord wrapped around his neck, correct?”
“Pretty much.”
“Yes or no.”
“Yes. In part.”
“Really? Which part? Fifty percent? Ninety percent?”
“Closer to ninety percent.”
“Well. Tell us about some other ways a newborn can suffer oxygen starvation.”
“Well, it may also result from excessive maternal sedation by anesthesia, placental abruption, breech delivery (also known as breech birth—when the child comes out of the uterus foot or bottom-first, rather than head-first), uterine rupture or prolonged labor.”
“Was Chase’s a prolonged labor?”
“Not especially.”
“So we’re left with a situation where the baby was being strangled by the cord, correct?”
“Yes.”
“Is that what caused Chase’s brain injury?”
“I wouldn’t know. I’m not a neurologist.”
“Well, let’s do it this way, then. Look over there and tell the jury what you believed caused this baby’s catastrophic injury.”
He poured another glass of water. A small trickle appeared at the corner of his mouth as he tried to mouth breathe and drink at the same time. Clearly rattled, thought Thaddeus. Good.
“I can’t think of any reason.”
“You do know about the umbilical cord wrapped around the child’s neck, correct?”
“Correct.”
“And you’ve already told the jury that that alone can cause brain damage, correct?”
“Correct.”
“And you saw no other mechanisms at work that you’ve listed that could cause oxygen starvation, correct?”
“Correct.”
“So wouldn’t you be
able to say within a reasonable degree of medical probability that Chase’s injuries were caused by the umbilical cord around his neck?”
“I would say that.”
“But you weren’t willing to say that before I asked the question, were you?”
“I guess I didn’t understand.”
“You didn’t understand the question?”
“I didn’t understand where you were going with it.”
“Doctor Payne, has anyone told you that you have to understand where I’m going with something in order to answer my questions?”
“My lawyer told me to be sure I understood your questions before I answered.”
“And why did she tell you that?”
“She was afraid you might try to trick me.”
“Have I tried to trick you?”
“No.”
“Have you heard her object to any of my questions as tricky?”
“No.”
“So she was wrong about me.”
“Evidently.”
“When you told the jury that Chase suffered his brain injury because the cord was wrapped around his neck, were you tricked into saying that?”
“No.”
“Because?”
“Because it’s the truth, I suppose.”
“Now, a compromised umbilical cord doesn’t always result in brain damage, does it?”
“Definitely not.”
“In fact, it usually does not result in brain injury, correct?”
“Correct.”
“How is brain injury prevented?”
“By careful monitoring and making sure the delivery happens within a certain number of minutes of certain warning signs.”
“Whoa, let’s break that up, shall we?”
Whereupon an elderly juror in the second row raised her hand. She sent a note to the judge. She had bladder problems and needed to use the restroom. Trying to hide his agitation at the interruption, the judge called a second morning recess. The jury was anxious for the case to move along so their service could end and they could return to their real lives, but they were helpless in the face of the older woman’s bladder.
44
Thaddeus used the break to hit the restroom.
Christine sat at counsel table and explained to Latoya what was happening. She didn’t need explaining and even suggested follow-up questions for Dr. Payne. Meanwhile, Morgana and Dr. Payne disappeared behind a door marked “ATTORNEYS” leading off the courtroom. Sandy Green and Rosemary Washington followed close behind.
Ten minutes passed. Thaddeus returned to counsel table and anxiously tapped his fingers, waiting, waiting. Judge Moody finally returned, the jury was settled in, and all was ready.
Then they resumed trial.
“Your honor,” said Thaddeus, “Plaintiff would call Dr. Helmut Andersen, out of order, reserving the right to recall Doctor Payne after Doctor Andersen.”
“No objection,” said Morgana, who clearly was happy for her client to get a break from testifying.
“Proceed,” said the judge.
The bailiff retrieved Dr. Andersen from the hallway, where he had been waiting with his files and books. He briskly followed the bailiff up the aisle and took a seat at the witness stand. He was a bearded forty-something with long flowing white hair, white beard, wire spectacles, with the prehensile face of a surgeon who might perform the most elaborate of surgeries. He nodded at the judge and smiled at the jury. Clearly a pro.
“Good afternoon, and tell us your name and occupation for the record.”
“Helmut Andersen, professor of obstetrics, University of Chicago Medical School.”
“How long in that position?”
“Eleven years.”
“Doctor, I want to cut to the chase here. We’ve just left off with Doctor Payne and we were about to ask about fetal monitoring. Do you hold in expertise in this area?”
“I teach it every day of the school year at UC Med.”
“Fair enough.”
“And I write about it. In journals, professional magazines, those things.”
“Doctor, explain fetal monitoring during delivery.”
“Fetal monitoring is defined as watching the baby’s heart rate for indicators of stress, usually during labor and birth.”
“Explain the modalities used to monitor a fetus. What’s available?”
The doctor nodded and launched into the field of fetal monitoring. He discussed the fetoscope, which he said was a special type of stethoscope for listening to a baby. However, he added, regular stethoscopes work just as well. Then he described Doppler monitors. These were a handheld ultrasound device that transmits the sounds of the baby’s heart rate either through a speaker or into ear pieces that are attached. This can generally pick up heart tones after twelve weeks gestation. He surveyed electronic fetal monitoring, involving an ultrasound device used during labor and birth, or during certain testing (non-stress test, contraction stress test) to record the baby’s heart rate, and sometimes mother’s contractions. It can be used intermittently or continuously. He finished off with a look at internal fetal monitoring, where an electrode is inserted inside the mother and attached to the baby’s head to record heart tones. Also a pressure catheter would be used to record contractions.
“Which types were used with Chase Staples? Describe the monitoring.”
“Objection. Multiple.”
“Sustained. Please restate.”
“Doctor, describe the fetal monitoring in Chase Staples’ labor and delivery.”
“Stethoscope. Electronic was added.”
“And the risks and benefits of the stethoscope?”
The doctor nodded. “This method is non-invasive, simple to use, and has a live person on the other end. This can prevent some of the errors that are mechanical. This gives mother the mobility to deal with her labor, shower, and so on. It does require that the person using it be trained, although it is a standard procedure taught in every medical and nursing type institution. In the case of high risk, induced, or with certain medications, it cannot provide the round the clock monitoring that may be necessary.”
“So Chase was under-monitored, given his situation.”
“That would be my opinion, yes.”
“So that’s why electronic was added to his care.”
“Certainly. I’m sure that was the thinking.”
“And whose thinking would that have been?”
“From the records I was given to review, that would have been the nurses’ decision, to use electronic fetal monitoring.”
“Who usually makes that decision?”
“The OB doctor.”
“Why wasn’t that done here?”
“Probably because he wasn’t present and had no idea about the case.”
“Why would they have used electronic fetal monitoring?”
“EFM provides a beat-to-beat view of the baby’s heart tones, in relationship to mother’s contractions. This may be used either continuously or intermittently. This is a benefit for the high-risk mother.”
“Was she high risk?”
“Well, not going in. There’s nothing to indicate she was high risk.”
“But she became high risk?”
“The labor became high risk.”
“Should an OB doctor have been prepared for that possibility?”
“Always.”
“Was Doctor Payne prepared?”
“Evidently not. The doctor had left the building.”
“How should fetal monitoring be done in a case such as Chase’s?”
“ACOG is the national organization for OB/GYNs in the US. It has an official policy statement that intermittent fetal monitoring is just as safe and effective as continuous. Their recommendations are a twenty-minute baseline strip, then once every half hour (for sixty to one hundred twenty seconds) in first stage, and every fifteen minutes in second stage, as long as everything looks normal.”
“And in a birth where the baby is in trouble?”
“Continuously.”
“What else should be done with a child in trouble?”
“Obviously, one needs to discover the problem and correct it.”
“Including timely caesarean sections?”
“Including timely caesarean sections.”
“Have you reviewed the notes in this case?”
“I have reviewed doctors’ notes, nurses’ notes, and hospital records.”
“And what is your opinion of how this birth injury happened?”
“Umbilical cord compromise. Wrapped around Chase’s neck.”
“Why did that happen?”
“Obviously the caesarean wasn’t timely.”
“It was late?”
“It was late.’
“How do we know that?”
The doctor’s smile was a smile of irony. “Because we have a catastrophically injured newborn. That never should have happened and was one hundred percent preventable.”
“How could it have been prevented?”
“By getting that baby the hell out of that mother in time. Excuse my language, but what I see here makes me very angry.”
“Because?”
“Because a human being’s life is ruined. By a careless doctor. An entire life, and family, destroyed.”
Thaddeus seemed to be reviewing his notes. While the courtroom was quiet, waiting, the expert’s words sank in. And the jurors were solemn, quiet and still.
Finally, when the effect had been maximized, he continued.
“Now let’s talk about caesarean, fetal distress, and time limits.”
“Generally, audit of the speed with which such caesarean sections are performed is important for clinical governance and risk management. Thirty minutes has been adopted as an audit standard.”
“What are common risks?”
“Delays occur both in getting the patient to theatre and in achieving effective anesthesia, though delivery within thirty minutes is more likely if the patient gets to theatre within ten minutes.”
“Tell us about the thirty-minute audit standard.”
“The audit standard of thirty minutes has become the criterion by which good and bad practice is being defined both professionally and medico-legally. The implication is that caesarean section for fetal distress that takes longer than thirty minutes represents suboptimal or even negligent care.”
Chase, the Bad Baby: A Legal and Medical Thriller (Thaddeus Murfee Legal Thriller Series Book 4) Page 15