1 IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, OHIO JULIE GREGORY, etc., et al, Plaintiffs, Case No. 98-CV-380 vs. SANDUSKY OBSTETRICS and GYNECOLOGY, INC., et al., Defendants. - - - - - Deposition of METHOD A. DUCHON, M.D., called for examination under the statute, taken before me, Donnalee Cotone, a Registered Professional Reporter and Notary Public in and for the State of Ohio, pursuant to notice and stipulations of counsel, at the offices of Bonezzi Switzer Murphy & Polito Co., L.P.A., Leader Building, Suite 1400, 526 Superior Avenue, Cleveland, Ohio, on Wednesday, June 13, 2001, at 4:00 o'clock p.m. - - - - - 2 1 APPEARANCES: 2 3 On behalf of the Plaintiffs: 4 Hermann, Cahn & Schneider LLP, by 5 KENT B. SCHNEIDER, ESQ. 6 1301 East Ninth Street 7 Suite 500 8 Cleveland, Ohio 44114-1876 9 (216) 781-5515 10 11 On behalf of Defendants William D. Bruner 12 D.O., Brian Printy, M.D., Glenn 13 McLaughlin, M.D., Sandusky Obstetrics & 14 Gynecology, Inc.: 15 Bonezzi Switzer Murphy & 16 Polito Co., L.P.A., by, 17 WILLIAM D. BONEZZI, ESQ. 18 Leader Building, Suite 1400 19 526 Superior Avenue 20 Cleveland, Ohio 44114-1491 21 (216) 875-2767 22 23 24 25 3 1 APPEARANCES, Continued: 2 3 On behalf of Defendant Providence 4 Hospital: 5 Shumaker, Loop & Kendrick, LLP, by 6 JOHN C. BARRON, ESQ. 7 North Courthouse Square 8 1000 Jackson 9 Toledo, Ohio 43624 10 (419) 241-9000 11 ---- 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 METHOD A. DUCHON, M.D., of lawful age, 2 called for examination, as provided by the Ohio 3 Rules of Civil Procedure, being by me first 4 duly sworn, as hereinafter certified, deposed 5 and said as follows: 6 EXAMINATION OF METHOD A. DUCHON, M.D. 7 BY MR. SCHNEIDER: 8 Q. Would you state your name, please. 9 A. Method A. Duchon, D U C H O N. 10 Q. Dr. Duchon, please give me your 11 professional address. 12 A. 9500 Mentor Avenue, Mentor, Ohio. 13 Q. And what is at that address? 14 A. That's one of our practice offices. 15 Q. When you say your practice offices, 16 who are you referring to? 17 A. I'm in a group of OB/GYN doctors, 18 five in number. 19 Q. And what is the name of that group? 20 A. Lake Obstetrics and Gynecology. 21 Q. Are you in the private practice of 22 obstetrics and gynecology? 23 A. Yes, sir. 24 Q. How long have you been in the 25 private practice of obstetrics and gynecology? 5 1 A. Since 1979. 2 Q. You have graciously given me a copy 3 of your CV before this deposition. Is this CV 4 current? 5 A. Yes. 6 MR. SCHNEIDER: Would you please 7 mark this as Exhibit 1. 8 - - - - - 9 (Thereupon, Duchon Deposition 10 Exhibit 1 was marked for purposes of 11 identification.) 12 - - - - - 13 Q. Doctor, I take it that your 14 practice involves the delivery of babies on a 15 regular basis? 16 A. Yes, sir. 17 Q. And has for some time? 18 A. Yes, sir. 19 Q. Do you do any teaching as well? 20 A. Currently I primarily do teaching 21 of nurses in the Lake Hospital System, and I've 22 done a couple of lectures at Case Western 23 Reserve. Although, I have no university 24 appointment. 25 Q. When you say you teach nurses at 6 1 the Lake Hospital System, tell me a little bit 2 more about that, please. What do you teach the 3 nurses and how often? 4 A. Probably about once a month we will 5 have a lecture or inservice educational program 6 in which I will lecture about a topic in 7 obstetricians primarily. 8 Q. Obstetrical nursing issues? 9 A. Yes. 10 Q. Have you over the course of your 11 career, of course, interfaced with obstetrical 12 nurses for many years? 13 A. Yes, sir. 14 Q. Have you ever taught them before, 15 the experience that you just described to me 16 that you've done recently? 17 A. Yes, sir, since 1979. 18 Q. Where did you teach them? 19 A. At University Hospitals. It is an 20 outreach education, like at Bedford Hospital. 21 Q. Doctor, Mr. Bonezzi gave me a 22 report that it appears you authored back in 23 April of 2001. Do you recognize that? 24 A. Yes, sir. 25 Q. Okay. Would you mark that as 7 1 Exhibit 2, please. 2 - - - - - 3 (Thereupon, Duchon Deposition 4 Exhibit 2 was marked for purposes of 5 identification.) 6 - - - - - 7 Q. Doctor, you know, of course, that 8 we're here today to ask you some questions 9 about a case involving the delivery of 10 Trent Gregory back in March of 1997, correct? 11 A. Yes. 12 Q. And you have been asked, I 13 understand it, to serve as an expert witness on 14 behalf of defendant Dr. Bruner in this case, is 15 that right? 16 A. That's correct. 17 Q. Do you know Dr. Bruner? 18 A. No, sir. 19 Q. Ever met him? 20 A. Not that I'm aware of. 21 Q. Do you know anybody in his group 22 out there? 23 A. The answer is probably, but I don't 24 know the names of the members of his group. 25 We've probably been introduced at some meeting 8 1 or something or run into one another at 2 someplace like that, but I don't know them. 3 Q. How did you come to be involved in 4 this case? 5 A. Mr. Bonezzi called up and said 6 would I look at some records for him and give 7 him an opinion. 8 Q. Have you testified for Mr. Bonezzi 9 or other members of his firm before? 10 A. No, I don't think so. Not of this 11 firm. 12 Q. All right. Did you work with them 13 on occasion when they were involved with the 14 Jacobson, Maynard law firm? 15 A. Yes, sir. 16 Q. Is that how you came to know 17 Mr. Bonezzi? 18 A. Yes, sir. 19 Q. Do you periodically review cases in 20 the medical/legal arena for lawyers when asked 21 to do so? 22 A. Yes, sir. 23 Q. Do you review them on behalf of 24 both plaintiffs and defendants? 25 A. Yes, sir. 9 1 Q. About what percentage of each? 2 A. I do about 75 percent defense work 3 and about 25 percent plaintiff's work. 4 Q. When was the last time you 5 testified on behalf of a plaintiff? 6 A. Within the last year. 7 Q. And who was the lawyer that hired 8 you to get involved in that case? 9 A. Her name is Roseanne Gugino, G U G 10 I N O, in Buffalo, New York. 11 Q. Have you testified on behalf of a 12 plaintiff for any Cleveland lawyers that you 13 can think of? 14 A. I have worked for some on behalf of 15 attorneys located in Cleveland. The cases did 16 not involve people in Cuyahoga County area, 17 though. 18 Q. Okay. Who were the Cleveland 19 lawyers you've worked with before on behalf of 20 the plaintiff? 21 A. Jane Rua at Monteleone, I think, is 22 where she is. 23 Q. Anyone else? 24 A. Oh. 25 Q. I'm sorry. 10 1 A. And then Larry Peskin. It's Larry 2 Peskin who's -- I don't know where Larry is at 3 the moment. I've done a couple of things for 4 Larry. 5 Q. I want to narrow down with you, if 6 I could, the areas that you intend to be 7 providing testimony about. 8 A. Uh-huh. 9 Q. I can tell from your report that 10 you certainly are going to be rendering 11 standard of care opinions regarding 12 Dr. Bruner's conduct throughout this labor and 13 delivery, correct? 14 A. Yes, sir. 15 Q. But I noticed in the records that 16 you have that you have some depositions of our 17 expert witnesses that are not standard of care 18 issues. For instance, our pediatric 19 neurologist, Elke Roland. Do you intend to 20 give any opinions in this case relating to any 21 issues involving why Trent Gregory is in the 22 condition he's in? 23 MR. BONEZZI: For the record, 24 Mr. Schneider, it is my intention of asking 25 questions of this particular witness when we go 11 1 to trial on July 23rd relative to the standard 2 of care only in regards to Dr. Bruner. 3 However, for purposes of 4 completeness, I insure that all depositions 5 were provided to Dr. Duchon. 6 MR. SCHNEIDER: Okay. 7 MR. BONEZZI: However, if you wish 8 to ask him questions relative to areas outside 9 of standard of care, be my guest. 10 MR. SCHNEIDER: Thank you. 11 Q. I would prefer to not take any 12 longer than I have to in this deposition, so in 13 order to do that, I want to narrow it down. 14 We refer to an area of involvement 15 in the case known as causation, meaning any -- 16 you are not, I understand it, going to render 17 any opinion about why Trent Gregory has the 18 brain injury that Trent Gregory has, is that 19 correct? 20 A. I can't anticipate what response I 21 may or may not give to every question that may 22 be asked by any of the lawyers in this room or 23 in some other venue. I intend to respond to 24 questions and give my opinions concerning 25 Dr. Bruner's conduct and standard of care, but 12 1 I can't always promise what someone, what I may 2 say in response to some question. 3 Q. Okay. Well, I mean, do you 4 consider yourself competent to render an 5 opinion as to why Trent Gregory has cerebral 6 palsy, for instance? 7 A. I have not in the past and do not 8 anticipate to in this case. 9 Q. And am I correct that you do not 10 intend to render any opinion about whether or 11 not Trent Gregory would have been fine had he 12 been delivered sooner, for instance, that's 13 outside your area of expertise? 14 A. As I say, I can't tell you what I 15 might say in response to certain questions that 16 may be asked. I intend to render obstetrical 17 opinions in my area of expertise. 18 Q. You are certainly, based on what I 19 see in your CV, qualified to render opinions 20 regarding the standard of care as it relates to 21 Dr. Bruner's conduct. We can agree on that, 22 correct? 23 A. Yes, sir. 24 Q. Can we also agree upon the fact 25 that you are qualified to render opinions on 13 1 the standard of care issues related to the 2 obstetrical nursing care that took place in 3 this case? 4 A. I think I can, yes. 5 Q. Okay. You would agree with me that 6 your background and experience and training 7 qualifies you to do that? 8 A. Yes, sir. 9 Q. In your letter that we've marked as 10 Exhibit 2, you identify the criticisms that 11 Dr. Klapholtz delineated relating to 12 Dr. Bruner's care and you commented on them. 13 A. That's correct. 14 Q. I believe that there was one 15 additional criticism that Dr. Klapholtz had 16 that is not covered by your report, and I want 17 to discuss that with you briefly. 18 Dr. Klapholtz opined that the 19 leaving of the sponge in Mrs. Gregory was 20 inappropriate and constituted a deviation from 21 the standard of care. Do you recall that? 22 A. Yes. 23 Q. Do you agree with Dr. Klapholtz' 24 opinion in that regard? 25 A. Yes. 14 1 Q. Is the deviation from the standard 2 of care in that regard a deviation on behalf of 3 Dr. Bruner? 4 A. Yes. 5 Q. Is it a deviation on behalf of the 6 nursing staff as well? 7 A. Yes. 8 Q. If you would elaborate for me why 9 it is a deviation on behalf of the nursing 10 staff, please. 11 A. Well, they assist in the procedure 12 and do sponge counts and all those things to 13 try to insure that this particular incident 14 would not occur. Obviously, there was a 15 problem because it did occur, and so, you know, 16 as they say, the thing speaks for itself. 17 Q. Did you, when you prepared your 18 report and you didn't mention that criticism of 19 Dr. Klapholtz, did you just overlook that at 20 that time? 21 A. No. I was fully aware of the 22 sponge. 23 Q. Is there any reason why you didn't 24 comment on that in the report? 25 A. I didn't disagree with 15 1 Dr. Klapholtz. I was telling my areas of 2 disagreement. 3 Q. I see. You'll recall that 4 Mrs. Gregory underwent some subsequent surgery 5 to deal with, I believe, adhesions that were 6 found inside her. I think it was maybe nine 7 months later or a year later. Did you review 8 those records? 9 A. No, sir. 10 Q. Dr. Klapholtz opined in his 11 testimony that that subsequent surgery and 12 those problems were the result of having left 13 the sponge inside at the time of the delivery. 14 Do you have any opinion in that regard? 15 A. I may, but I'm not sure I'm 16 prepared to give it at this particular time. 17 Q. In other words, you have not seen 18 the information that would permit you to give 19 that opinion today? 20 A. That's correct. 21 MR. SCHNEIDER: Can we go off the 22 record for a minute, please? 23 (Discussion had off the record.) 24 MR. SCHNEIDER: Back on the record. 25 Q. Doctor, if you review those records 16 1 and you do form an opinion in that regard, 2 please advise Mr. Bonezzi, if you would. Thank 3 you. 4 A. Yes. 5 Q. Doctor, do you have the fetal 6 monitor strips? Do you have a copy? 7 A. Yes, sir. 8 Q. Could you pull yours out, please? 9 A. Got it. Yes, sir. 10 Q. Let me grab mine. 11 Let me back up for a second. I'm 12 going to direct you there in a minute. 13 Doctor, you'll recall that 14 Dr. Bruner elected to gel Mrs. Gregory a couple 15 of days before the delivery. Do you recall 16 that? 17 A. Yes, sir. 18 Q. Do you think that it was 19 appropriate to gel her? 20 A. Yes, sir. 21 Q. And what reasons do you think that 22 it was the right thing to do? What were the 23 reasons that you think that? 24 A. She had reached her due date, and I 25 think in the older mother, that it is 17 1 appropriate to get them delivered once they 2 have reached their due date. That is what we 3 presently practice also in a very similar vein, 4 and I think it meets with the standard of care. 5 Q. Okay. Is it your custom to do the 6 same thing? 7 A. Yes, sir. 8 Q. Do you think that gelling her on 9 the occasions that they did contributed to her 10 going into labor on the day that she did, the 11 15th? 12 A. Yes, sir. 13 Q. And that was a Saturday, correct? 14 A. Yes. 15 Q. Do you think that in the absence of 16 having gelled her twice shortly before that, 17 that she would not have gone into labor that 18 soon and probably not gone into labor until 19 sometime later? 20 A. Difficult question to answer. She 21 had evidenced no signs of cervical ripening up 22 to that point. We have all, meaning practicing 23 obstetricians, seen patients who have no 24 evidence of cervical ripening go into labor the 25 subsequent 24 hours. However, she had no 18 1 evidence, no signs of impending labor and he 2 elected to gel her. I think his decision was 3 proper. 4 Q. I understand that, and I just want 5 to know if you can tell me -- you told me it's 6 a difficult question to answer, the next one I 7 asked you about. 8 But can you tell me if you think 9 just with probability that she probably would 10 not have gone into labor on that weekend had 11 she not been gelled just before that? 12 A. I think that is more likely than 13 not, yes. 14 Q. Please turn to strip number 74137, 15 if you would. 16 MR. BARRON: Do you have a time on 17 that? 18 MR. SCHNEIDER: Yes. It's just 19 before 2:30. 20 MR. BONEZZI: What was the number? 21 MR. SCHNEIDER: 74137. 22 MR. BONEZZI: Thank you. 23 A. Yes. 24 Q. Okay. You agree with me that this 25 is shortly before 2:30, 14:30 in the afternoon, 19 1 2:30 p.m.? 2 A. That's what's marked on the 3 tracing, yes, sir. 4 Q. Okay. In your report you reference 5 this time period on the strips and I want to 6 ask you your opinion about these two tracings 7 you see at 74137 and 74138. 8 A. Yes, sir. 9 Q. Can we agree that those are 10 decelerations? 11 A. Yes, sir. 12 Q. Are they late decelerations, does 13 it appear? 14 A. No. They're just decelerations. 15 Q. You would not agree that they 16 should be categorized as late? 17 A. No. 18 Q. What would you characterize them 19 as? 20 A. Decelerations. 21 Q. Okay. Do you consider them to be a 22 nonreassuring pattern? 23 A. No. 24 Q. Okay. Why not? 25 A. They're not. 20 1 Q. Can you explain to me why -- well, 2 let me ask it a different way. 3 What do you believe constitutes a 4 nonreassuring pattern and why isn't this one? 5 A. The patient has normal baseline, 6 she has variability present, and in the 7 tracings just prior to and just after, she has 8 accelerations present. Those are all signs of 9 fetal well-being and it remains reassuring. 10 The decelerations mean nothing. 11 Q. All right. Now, I'm not talking 12 about the time period after at this point in 13 time. You referenced the time period after. 14 I'm just talking about up to this point in 15 time, up to 14:30, okay? Are you with me? 16 A. Yes, sir. 17 Q. All right. So as of 14:30, when 18 the doctor comes in the room, he would see 19 these two decelerations at that point in time, 20 correct? 21 A. Yes, sir. 22 Q. All right. And where are the 23 accelerations that you're referring to as 24 occurring thereafter? 25 A. Panel 74140, 42, 74143, 74144, 45. 21 1 Q. That's what you were referring to 2 just a minute ago when you told me about the 3 subsequent accelerations? 4 A. After, yes, sir. 5 Q. What is your definition of a 6 nonreassuring pattern? 7 A. My definition? 8 Q. Yes. 9 A. Of a nonreassuring pattern is 10 absent variability, a fixed bradycardia, slow 11 heart rate or perhaps tachycardia and/or 12 repetitive late decelerations or what are 13 called severe variable decelerations. Severe 14 variables being decelerations lasting more than 15 a minute or in which the heart rate drops below 16 60 beats per minute. 17 Q. Do you have, I should have asked 18 you, we've been talking in this case about 19 three different categories of tracings. 20 A. Yes, sir. 21 Q. Reassuring, nonreassuring and 22 ominous. 23 A. Correct. 24 Q. Do you use the same descriptions? 25 A. No, sir. 22 1 Q. Okay. Tell me what you use. 2 A. Reassuring, nonreassuring. 3 Q. Two categories? 4 A. Correct. 5 Q. You've just described the second 6 category, the nonreassuring category for me? 7 A. No, sir. I have given you a broad 8 brush of what nonreassuring could be basically, 9 though. 10 Q. All right. You mean you've told me 11 essentially what you include in the concept of 12 a nonreassuring pattern, right? 13 A. Yes. 14 Q. And at some point in time, does the 15 strip become what you would categorize as 16 nonreassuring? 17 A. Yes, sir. 18 Q. Where is that? 19 A. 3:18. 20 Q. Okay. 3:18 in the afternoon? 21 A. Yes. 22 Q. Which coincides with what number on 23 the strip, if you would? 24 A. 74154 and going forward, 74155 as 25 it's labeled by the monitor. 23 1 Q. Okay. Now, when we have that what 2 you've just described as the nonreassuring 3 pattern beginning at 3:18, would you agree with 4 me that in the face of that pattern, it is 5 incumbent upon the obstetrical nurse to notify 6 the physician of this occurrence? 7 A. Somewhere after the pattern is 8 evidenced, yes. 9 Q. She doesn't have to notify him at 10 3:18? 11 A. No. You have to see the pattern 12 evolve for a period of time. 13 Q. Dr. Bruner testified that he 14 believes that he should have been contacted by 15 the nurse at 3:18. 16 A. Yes, sir. 17 Q. And the nurse should have reported 18 to him these tracings at that point in time. 19 Do you have any reason to disagree 20 with his position in that regard? 21 A. No, sir. 22 MR. BARRON: Objection. Asked and 23 answered. 24 A. I said 3:18 when the pattern 25 changed. 24 1 Q. And do you agree that the nurse's 2 failure to notify the physician of that change 3 in the pattern constitutes a deviation from the 4 standard of care applicable to the nurses, to 5 the nurse, I should say? 6 A. Yes. 7 Q. Did you, when looking at the 8 records and the strips, do you recall noting 9 that the nurse engaged in some interventions 10 around noon that day? 11 A. I do recall that, yes. 12 Q. If you would look for a moment at 13 the records, the labor and -- well, if you want 14 I'll just read it to you. 15 The labor and delivery record 16 indicates at noon that moderate variables were 17 noted, mother on left side, IV wide open, O2 18 on. It talks about pitocin off. 19 A. Yes. 20 Q. Do you believe that the nurse 21 should have notified the doctor at that time of 22 what was occurring? 23 A. It's commonly done. It's expected. 24 Q. And why should she have notified 25 the doctor at that time of what was occurring? 25 1 A. She has concerns and is performing 2 nursing interventions and it's usually 3 communicated to the physician. 4 Q. Is that what you teach the nurses 5 that you teach to do under these kinds of 6 circumstances? 7 A. Yes, sir. 8 Q. Is that what the standard of care 9 requires of these nurses under this type of 10 circumstances? 11 A. If they have concerns and are 12 performing interventions, they notify the 13 physician. 14 Q. And so Nurse Durbin should have 15 done so at that point in time? 16 A. Yes. 17 Q. I know that you are not critical of 18 Dr. Bruner's failure to either order a 19 C-section at 2:30 or to begin making 20 preparations for bringing the personnel in to 21 perform it, correct? 22 A. That's correct. 23 Q. I take it that you agree with 24 Dr. Bruner's decision to order a C-section at 25 3:30? 26 1 A. Yes, sir. 2 Q. And you, I take it, based on your 3 review, would agree that one of the reasons 4 that the C-section needed to be called for was 5 the abnormal heart tracings at that point in 6 time? 7 A. Dr. Bruner has stated he is 8 primarily performing a cesarian for failure to 9 progress in labor, and I agreed with his 10 decision at that time. As events subsequently 11 evolved, the indications changed and he 12 responded appropriately. 13 Q. Okay. I don't believe, Dr. Duchon, 14 that that accurately reflects Dr. Bruner's 15 testimony. My recollection is throughout 16 numerous places in his deposition he said that 17 at 3:30 a fundamental reason for his calling 18 for the C-section was the abnormal heart 19 tracings, as well as the failure to progress. 20 MR. BARRON: I'm going to object to 21 that characterization of the testimony and 22 furthermore, object to its irrelevance. What 23 is relevant is what the witness construes from 24 the materials he's reviewed. So I object on 25 both grounds. 27 1 Q. Would you agree that based on your 2 review of the material, that the heart tracings 3 as of 3:30 were of enough concern to mandate 4 calling for a C-section? 5 A. No, not as of 3:30. 6 Q. So you're not alarmed at all by 7 those tracings as of 3:30? 8 A. Alarmed, no, sir. 9 Q. You are not critical of 10 Dr. Bruner's failure to call it a stat 11 C-section at 3:30, is that right? 12 A. Could you restate that question? 13 It's a negative -- sort of a double question. 14 Q. Yes. Let me try it again. 15 You don't believe it was incumbent 16 upon Dr. Bruner to call it a stat C-section at 17 3:30? 18 A. That's correct. 19 Q. Now, do you recall Dr. Bruner 20 testifying that in his mind there wasn't much 21 difference between calling it a stat C-section 22 or not, that, in fact, it was a situation of 23 some urgency and needed to be treated that way? 24 MR. BARRON: Objection as to 25 characterization of his testimony. 28 1 A. I'm sorry. I'm not sure I 2 understand the question. I'm sorry. 3 Q. I'd like to read you a portion of 4 Dr. Bruner's testimony and then ask you if you 5 have any reason to disagree with what he's 6 saying. This is at page 170 of his deposition 7 and he starts by saying: 8 "I think you misunderstand this 9 stat business." He then goes on to say, "When 10 we call in circumstances like this, it's really 11 a redundancy to say stat. These are of the 12 utmost urgency and you know that by just 13 looking at the strip. You know innately to 14 progress as fast as humanly possible. I don't 15 recall what my testimony was as far as using 16 stat or not stat. I recall this being an 17 issue. The tracing dictated a very urgent need 18 to get this child out." 19 And he's talking about the 3:30 20 time frame. 21 MR. BARRON: Objection. 22 Q. My question to you is, do you have 23 any reason to disagree with what he just said? 24 A. I think you're characterization is 25 incorrect. 29 1 Q. Okay. What characterization? 2 A. That we're talking about the 3:30 3 time frame. There is subsequent evolution of 4 this tracing into a fetal bradycardia just 5 after 3:30 that Dr. Bruner then moved forward 6 more quickly with the cesarian and that is the 7 big difference. At 3:30 when he said we're 8 going to do a cesarean, I don't think it was a 9 stat situation. 10 Q. I'm not saying to you that he said 11 it was stat. I'm telling you that, in what I 12 just quoted to you, he's describing what his 13 thinking was at 3:30. 14 A. Okay. 15 Q. All right. And I'm asking you if 16 you agree with that or I should say if you have 17 any reason to disagree with what he says about 18 his thinking at 3:30. 19 MR. BARRON: I'm going to object. 20 The witness has already given his opinion 21 regarding his assessment of things as they 22 stood at 3:30, so this has been asked and 23 answered. 24 A. I think Dr. Bruner was telling you 25 what he was thinking at the time as best he 30 1 could remember it. 2 Q. For instance, Dr. Bruner was 3 telling us that any nurse looking at the strips 4 at 3:30 when he called for the C-section should 5 innately know that there's a sense of urgency 6 to deliver the baby. Do you agree with that? 7 MR. BARRON: Objection. Asked and 8 answered. 9 A. As I said, I think he was referring 10 to the subsequent evolution of the fetal heart 11 rate tracings, which is just after 3:30. 12 Q. Doctor, I want you to assume that 13 what I'm representing to you is accurate for 14 purposes of my question if you would, okay? 15 Assume that he is referring to the 16 3:30 time and assume that he said that any 17 nurse looking at the strip at 3:30 should 18 innately know that there is a sense of urgency 19 to the delivery of the baby whether he says 20 stat or not. 21 Do you agree with that? 22 MR. BARRON: Objection. Asked and 23 answered. 24 A. I'm sorry. It got a little long 25 there. What is the question, do I agree with 31 1 what, that anybody should know? 2 Q. That the nurse should know at 3:30 3 whether he says stat or not that there's a 4 sense of urgency as it relates to the delivery 5 of the baby. 6 MR. BARRON: Same objection. 7 A. Yes, as he spoke about it in his 8 deposition. 9 Q. Doctor, you read Sue Sanford's 10 deposition, the head of obstetrical nursing at 11 Providence, do you recall that? 12 A. I did read it, yes, sir. 13 Q. Okay. I want to read you a couple 14 of pages of her transcript. I ask that you 15 please try and pay attention to it, and then 16 ask you if you agree with what she's saying in 17 this regard. 18 Beginning on page, the bottom of 19 page 30 in line 19, and we're talking about, 20 just so you know, we're talking about the time 21 period between 2:30 -- 22 MR. BONEZZI: What page? 23 MR. SCHNEIDER: Yes, 130. 24 MR. BARRON: I'm sorry. Did you 25 just say 130? 32 1 MR. SCHNEIDER: Yes. That's the 2 page number, not the time. 3 MR. BONEZZI: Instead of having him 4 read page after page, I would rather have it 5 sitting right in front of the witness. 6 MR. SCHNEIDER: Fine. 7 MR. BARRON: I don't have any 8 objection. I just thought the record was 9 confusing as to whether or not Kent had altered 10 the time frame. 11 Q. Down at the bottom of page 130, 12 doctor, there's some questions and answers that 13 I asked of Nurse Sanford related to this 1:30 14 to 2:30 time frame when the doctor was not in 15 the room. 16 A. Which time frame? 17 Q. I'm sorry. 2:30 to 3:30. Excuse 18 me. 19 A. Okay. Thank you. 20 Q. Page 130, line 19. 21 Question: "What makes you believe 22 that he was aware of the fact that these late 23 and variable decelerations continued to occur 24 and ultimately -- well, continued to occur from 25 2:30 to 3:30? Why do you think he was aware of 33 1 that?" 2 Answer: "I'm confused." 3 Leaving out Mr. Barron's objection. 4 "Well, I want to make sure I 5 understand." 6 Answer: "Yeah, because he was 7 already advised that they existed." 8 Question: "At 2:30?" 9 Answer: "Yes." 10 Question: "You have no reason to 11 believe that he was aware of whatever the 12 tracings had on them or showed from 2:30 13 forward until 3:30, do you? You have no reason 14 to believe that he knew what was on those 15 strips?" 16 Answer: "My sense tells me that 17 they don't go away. They weren't going away, 18 so he certainly knows they are there." 19 Question: "So what you are saying 20 to me is you assume that the doctor was 21 assuming, that the late, that the decelerations 22 that occurred before 2:30 were continuing on 23 from 2:30 to 3:30?" 24 Answer: "Right." 25 Question: "And therefore, there 34 1 was no need for the nurse to notify him of the 2 fact that they continued during that time 3 period because you assumed he was aware of it?" 4 Answer: "Yes." 5 Having read that, doctor, do you 6 agree that those are reasonable nursing 7 assumptions for Nurse Sanford to make, that the 8 doctor would assume that they continued 9 throughout that hour? 10 A. No. 11 Q. And would you agree with me that 12 that is certainly not a reasonable basis for 13 failing to notify the doctor of anything that 14 occurred during that hour? 15 A. The doctor was not notified. 16 Q. I'm saying, but and that logic is 17 certainly not a reasonable explanation for 18 failing to do so, is it? 19 A. That's correct. 20 Q. Doctor, was it reasonable for 21 Dr. Bruner to assume that when he called for 22 the C-section at 3:30, that the nurse would do 23 whatever was necessary to make the 24 notifications to assemble the surgical 25 personnel required? 35 1 A. Yes, sir. 2 Q. And was it reasonable to assume 3 that she would do so promptly upon being 4 advised of the C-section at 3:30? 5 A. I'm not sure I know what you mean 6 by promptly, but, yes, sir. 7 Q. Recognizing that nothing could 8 occur until the surgical team was notified and 9 appeared based on the circumstances that 10 existed at that hospital -- 11 A. Yes, sir. 12 Q. -- wouldn't you agree that a 13 reasonable, reasonably competent obstetrical 14 nurse would make that notification as soon as 15 possible? 16 MR. BARRON: Objection as to time 17 frame. 18 A. Yes, sir. 19 Q. Doctor, I take it that you are 20 certainly not critical of Dr. Bruner's having 21 left the room from 2:30 to 3:30, is that right? 22 A. That's correct. 23 Q. And he was entitled to assume that 24 he would be notified of anything eventful by 25 the nurses during that time period, correct? 36 1 A. Yes, sir. 2 Q. Do you have any understanding of 3 where he was during that time period based on 4 what you reviewed? 5 A. No. 6 Q. Is it also fair to say that when he 7 called for the stat at 3:30, that it was 8 appropriate for him to then leave the room and 9 it was appropriate for him to rely upon the 10 nurse continuing to monitor the patient at that 11 point in time? 12 MR. BARRON: Objection. Misstated 13 the timing of the stat order. 14 MR. SCHNEIDER: I wasn't referring 15 to the stat order. 16 MR. BARRON: Well, that's exactly 17 what the question was as stated. Have the 18 court reporter read it back, if you want. 19 MR. SCHNEIDER: If I said that, 20 then I stand corrected. 21 Q. Let me start over. 22 I take it it's your opinion that it 23 was appropriate for Dr. Bruner to leave the 24 room at 3:30 after he called for the C-section? 25 A. Yes, sir. 37 1 Q. And was it also appropriate for him 2 to assume and rely upon the fact that the nurse 3 would continue to monitor the patient from that 4 point forward? 5 A. Yes, sir. 6 Q. Bear with me for a minute, please, 7 doctor. 8 Doctor, at this hospital on a 9 Saturday, later Saturday afternoon, the 10 testimony is that surgical nurses are not 11 always on the premises, the team has to be 12 assembled, and the way that occurs is that 13 someone makes a call to either the supervisor 14 or the Health Line operator and then calls are 15 placed to the nurses. 16 Do you recall that being 17 essentially accurate? 18 A. Yes, sir. 19 Q. Would you agree with me that a 20 reasonably competent nurse should have known 21 that at that time of the day on a Saturday that 22 the surgical nursing team is off the premises 23 and needs to be brought in? 24 A. I'm not sure I can tell you what 25 nurses do or do not know about the surgical 38 1 team. I mean, there was a system in place for 2 notifying the surgical personnel to assemble a 3 team for a cesarean and that's -- I would 4 assume the nurses knew how to do that. 5 Q. Doctor, you recall seeing the 6 document from the Health Line operator called 7 the emergency surgery call notification list? 8 A. I'm not sure I've seen that 9 document, no, sir. 10 Q. Okay. Let me show it to you and 11 maybe my description won't jog your memory, but 12 perhaps seeing it will. 13 MR. BONEZZI: I'm not sure if I 14 sent that to him. 15 MR. SCHNEIDER: Oh, okay. 16 THE WITNESS: You did not. 17 MR. BONEZZI: Because I actually 18 didn't recognize it even when Dr. Bruner looked 19 at it. 20 MR. SCHNEIDER: Okay. 21 Q. Well, take a look at that if you 22 would for a second. 23 A. Okay. 24 Q. That document indicates that the 25 Health Line operator first received a call 39 1 advising her to assemble the surgical team at 2 3:44. Do you see that? 3 A. Yes, sir. 4 Q. Dr. Bruner called for the first 5 C-section at 3:30. I would like to read you a 6 portion of Dr. Bruner's testimony on this point 7 and ask you if you have any reason to disagree 8 with it, and I'm referring to the continuation 9 of his deposition, page 142, and I will 10 represent to you that I'm talking to him -- I'm 11 showing him exactly what I've just showed you 12 and asking him his reaction. 13 Question: "So when I just showed 14 this to you today, that's the first time you 15 saw that record indicating that nobody notified 16 the Health Line operator until 3:44, right?" 17 Answer: "That's right." 18 "What was your reaction, doctor, 19 when you looked at that and saw that nobody 20 made a call to the Health Line operator until 21 3:44? 22 "Well, this is 14 minutes past the 23 time that I asked for a C-section." 24 Question: "And what was your 25 reaction when you saw that piece of paper 40 1 showing that nobody made the call until 3:44? 2 "I think that's horrible. I -- 3 just too long." 4 Do you have any reason to disagree 5 with what he stated about that. 6 A. That's what he stated. I read his 7 deposition. 8 Q. I mean, do you have any reason to 9 disagree with it substantively, that that's 10 horrible and too long? 11 MR. BARRON: I'm going to object 12 unless you specify what occurred between 3:30 13 and 3:44. 14 A. And the question is? 15 Q. Do you agree with Dr. Bruner's 16 characterization of that delay as -- 17 A. No, sir. 18 Q. -- as being horrible and too long? 19 A. No, sir. 20 Q. Why not? 21 A. You have Dr. Bruner under threat of 22 a lawsuit in this particular venue and you 23 obviously produced a document and used it as a 24 threat against him and he was responding to 25 that, and I think his characterization of it is 41 1 one way of characterizing it. But there are 2 many ways of looking at what went on. 3 Q. I'm not sure I understand what you 4 mean by had him under the threat of a lawsuit 5 in some venue. What did you mean by that? 6 A. You're deposing him as a witness in 7 which he is being sued, and so now I think 8 there is a certain defensive posture in his 9 statement. 10 Q. Defensive in what way? 11 A. Defending himself. 12 Q. I wasn't asking him about his 13 conduct. I was asking him about the 14 hospital's. 15 A. That's correct. 16 Q. How do you interpret that as him 17 having done that to defend himself? 18 A. That's exactly my characterization. 19 MR. BARRON: I'm going to object. 20 He's asked and answered and explained. 21 Q. Are you saying that you don't have 22 any problem with that delay or you could just 23 find different ways to characterize it? 24 A. I'm saying I would probably find 25 different ways of characterizing it. 42 1 Q. At page 148 of his deposition I 2 asked him the following question: "22 minutes 3 goes by from the time you first call for a 4 C-section until the time the last nurse you 5 absolutely have to have to begin that procedure 6 is even called to come in. What's your 7 reaction to that, doctor?" 8 Answer: "I think that's 9 outrageous." 10 Question: "Unheard of in your 11 practice, isn't it?" 12 Answer: "Yes." 13 Again, do you agree with Dr. Bruner 14 that that was outrageous? 15 A. No, sir, I wouldn't use those 16 words. 17 Q. What would you use to describe it? 18 What words would you use? 19 MR. BARRON: I'm going to object 20 again unless you specify as to what occurred 21 between 3:30 and 3:48. 22 MR. SCHNEIDER: 3:52 I'm referring 23 to. 24 MR. BARRON: All right. 3:52. 25 Q. How would you describe it? 43 1 A. Those are the times that were 2 recorded. 3 Q. I'm asking how you would describe 4 the delay, the 22-minute delay between the time 5 he called for the C-section and the time that 6 they placed a call to the nurse that he had to 7 have present to perform it? 8 A. That's the time that occurred. 9 Q. Well, wouldn't you agree with me 10 that it's inappropriate? 11 A. No, sir, not always. 12 Q. In this circumstance, was it 13 inappropriate? 14 A. No, sir. I assume that people were 15 trying to do the best job that they could do. 16 Q. If they're trying to do the best 17 job that they can do, does that cloak them from 18 responsibility even if they do it in such a 19 fashion that it falls below the standard of 20 care? 21 MR. BARRON: I'm going to object 22 unless you reference the applicable standard of 23 care being the 30-minute rule. 24 A. What was the question now? 25 Q. Nurse Durbin offers no explanation 44 1 for what she was doing -- Nurse Durbin can't 2 give us an answer to the question of why she 3 didn't place the call to the Health Line 4 operator until 3:44, even though it was called 5 for, the C was called for at 3:30. 6 MR. BARRON: Objection. 7 Q. Do you believe her failure to place 8 the call to the Health Line operator 9 constitutes a deviation from the standard of 10 care that applied to her? 11 MR. BARRON: I want to show an 12 objection. That's an absolute 13 mischaracterization of her testimony. 14 A. No, sir. 15 Q. Why not? 16 A. I think that you're not stating 17 this properly. I think that she was trying to 18 do the best job she could do. There obviously 19 is communication going on among these people. 20 There is a clinical circumstance, and these are 21 what the records show. 22 Q. So you have no problem with her 23 waiting 14 minutes to call the Health Line 24 operator? 25 A. I'm not exactly sure that's true. 45 1 MR. BARRON: Objection. 2 A. She waited 14 minutes. 3 Q. Well, what is your impression of 4 what's true? The C was called for at 3:30 and 5 the record shows that the Health Line operator 6 got the call at 3:44. What impression are you 7 under as far as when this all happened? 8 MR. BARRON: You're asking him to 9 describe what he understands to have occurred 10 between 3:30 and 3:44? 11 MR. SCHNEIDER: That was not my 12 question. 13 THE WITNESS: What was the 14 question? 15 MR. SCHNEIDER: Would you read my 16 earlier question, please. 17 (Record read.) 18 A. That around 3:30 Dr. Bruner said he 19 wanted to perform a cesarean section, and from 20 this log that you have showed me at 3:44 that 21 the operator was notified. 22 Q. And you have no problem with that 23 14-minute delay on her part is what I'm asking 24 you? 25 MR. BARRON: Objection. Asked and 46 1 answered. 2 A. That's correct. 3 Q. And why don't you have a problem 4 with that? 5 A. Because this is the clinical 6 circumstances we all work in, and this is 7 things that happen in hospitals all the time. 8 Q. So the standard of care didn't 9 obligate her to make that call to the Health 10 Line operator any sooner? 11 A. I think it obligated her to do it 12 in a timely fashion. There may have been 13 things that manipulated those times. 14 Q. Well, do you have an opinion that 15 there were things that manipulated those times 16 that prevented her from doing it until 3:44? 17 A. Not at this time. 18 Q. But you're giving her the benefit 19 of the doubt and saying that what she did was 20 appropriate, even though you don't know what 21 she did to cause the delay? 22 A. Yes, sir. 23 Q. Did you read the testimony about 24 how the Health Line operator system worked, 25 where the Health Line operator would get the 47 1 call from somebody to assemble the nursing team 2 and then she would have to place the call to 3 the nurses, but at the same time she might be 4 having to receive phone calls from the 5 community about health-related issues? Do you 6 recall that testimony? 7 A. Yes, sir. 8 Q. And you recall her testifying that 9 sometimes receiving those calls from the 10 community would delay her or could delay her 11 from placing the calls to the surgical nurses, 12 do you recall that? 13 A. Yes, sir. 14 Q. Do you have any problem with that 15 arrangement? 16 A. No, sir. 17 Q. You think that's perfectly 18 appropriate? 19 A. That was the arrangement the 20 hospital made to try to address the clinical 21 issue. I think that's perfectly appropriate. 22 Q. Doctor, did you form any opinion 23 based on your review of these materials as to 24 why a pediatrician wasn't present at the time 25 of the birth? 48 1 A. No, sir, I have no opinion. 2 Q. Do you have an opinion as to 3 whether or not it was the nurse's job to notify 4 the pediatrician? 5 A. I don't have an opinion at this 6 time. 7 Q. Do you recall Dr. Bruner saying 8 that he was literally standing around in the 9 operating room for about 18 minutes doing 10 nothing waiting to begin the procedure? 11 A. Yes, sir. I recall that portion of 12 testimony. 13 Q. Do you recall him saying he was 14 becoming more and more stressed about the 15 situation as that time was going on? 16 A. Yes, sir. 17 Q. Has that happened to you before, 18 where you've had to stand around in a waiting 19 room for, I mean, in an operating room under 20 circumstances like that for 18 minutes? 21 A. I don't know about the time for 22 sure, but, yes, sir, I've stood there. 23 Q. Under what circumstances have 24 caused you to have to stand around and wait? 25 A. This very similar circumstances. 49 1 Q. Waiting for the nurses to come in 2 from off the premises? 3 A. Or waiting for nurses to come from 4 on the premises or waiting for anesthesia. But 5 there have been times when I've been in the 6 operating room waiting to begin a procedure 7 prior to being able to start and have to wait 8 for it. 9 MR. SCHNEIDER: I have nothing 10 further. Thank you. 11 MR. BARRON: Doctor, I have a few 12 questions. I'll try to be as brief as I can. 13 I'd like to start out just by asking a general 14 question. 15 EXAMINATION OF METHOD A. DUCHON, M.D. 16 BY MR. BARRON: 17 Q. Would you agree with me that in 18 cases like this, it's very difficult to know 19 exactly what happens on a minute-to-minute 20 basis, that we have a chart to look at, but in 21 retrospect, it's hard to reconstruct precisely 22 what happens on a minute-to-minute basis? 23 A. That's correct. 24 Q. Okay. And people make entries in 25 medical records in an attempt to create a 50 1 record of what's happened, to the best of their 2 ability, correct? 3 A. That's correct. 4 Q. They can't chart every event that 5 happens, correct? 6 A. We can't take care of patient and 7 chart. 8 Q. Right. 9 A. So you reconstruct it, you 10 memorialize it in some way to the best of your 11 recollection after the events, and that's how 12 all of these charts are created except for the 13 now electronic ones that have concurrent timers 14 and print out or us and things like that. We 15 go back and try to do it as best we can. 16 Q. With the exception of the 17 electronic fetal monitor which does give a 18 continuous flow of data, the other data that's 19 available in a hospital chart are people's 20 attempt to document things as best they can, 21 given the clinical circumstances they're 22 dealing with, fair? 23 A. That's correct. 24 Q. Okay. And sometimes, depending on 25 how pressing the patient's needs are, some time 51 1 has to elapse before the caregiver, be it the 2 nurse or the doctor or whoever, can go back to 3 the chart and record to the best of their 4 recollection what happened, fair? 5 A. That's a fair statement. 6 Q. Okay. And that even relates to 7 timing, that people, because they're taking 8 care of the patient, can't always make a 9 notation right at the moment looking at the 10 clock. So that after whatever patient care is 11 going on, there is an attempt to create, as 12 best they can, a reconstruction of what 13 happened, correct, fair? 14 A. Yes. 15 Q. Okay. Mr. Schneider asked you a 16 question about some nursing intervention that 17 Nurse Cecil gave to the patient around noon, 18 around the noon hour. 19 Am I right in thinking that if 20 Dr. Bruner was there between the noon -- over 21 the noon hour, it would have been a permissible 22 thing for the nurse to have communicated that 23 when he was there as opposed to doing it by 24 telephone call? 25 A. I'm sorry. I don't quite 52 1 understand that. 2 Q. Let me back up. There's been some 3 testimony by Mrs. Gregory that she recalls the 4 doctor having been in over the noon hour. 5 MR. SCHNEIDER: Objection. 6 Q. If you don't recall that, just for 7 purposes of my question, just assume that 8 Mrs. Gregory testified to that, okay? 9 A. Okay. 10 Q. My only question is, if that's, if 11 her memory was accurate, would it have been 12 reasonable for the nurse to communicate to the 13 doctor regarding whatever her thoughts or 14 concerns were in person as opposed to having to 15 make a phone call to the doctor? In other 16 words, person-to-person communication being an 17 acceptable form of communication. 18 A. Yes, sir. 19 Q. Okay. Would it also be fair to say 20 that even if Nurse Cecil didn't communicate 21 over the noon hour time period her nursing 22 interventions to Dr. Bruner, it's fairly clear 23 that that omission didn't have anything to do 24 with the ultimate outcome in this case? 25 MR. SCHNEIDER: Objection. 53 1 A. Yes, sir. I think that her 2 interventions, the fetal heart rate responded 3 during that period of time and had no bearing 4 on subsequent events. 5 Q. Okay. In terms of a nurse 6 monitoring the fetal heart rate of a fetus, am 7 I right that during the active phase of labor, 8 the general standard is that the mother is to 9 be, the mother, thus the fetus, is to be 10 assessed approximately every 15 minutes? 11 A. Yes, sir. 12 Q. Okay. In other words, the 13 standards that apply to monitoring the 14 situation involving the fetus does not require 15 the nurse to be over the fetal monitor every 16 moment that the woman is in active labor, 17 correct? 18 A. That's correct. 19 Q. Okay. You mentioned the appearance 20 at around 3:18 p.m. of some nonreassuring signs 21 on the strip, correct? 22 A. Yes, sir. 23 Q. And would it be fair to say that 24 from your review of this case, you don't know 25 when it was in terms of an exact minute after 54 1 3:18 that Nurse Cecil first observed the 2 tracing, fair? 3 A. That's true. 4 Q. Okay. When doctors want to 5 communicate a sense of high urgency to nurses 6 or other people assisting them, one of things 7 that they frequently will do is to say they 8 want something done on a stat basis, correct? 9 A. No, only on television. 10 Q. No? That's not a term that you use 11 with your orders? 12 A. That's silly childish stuff. We 13 talk to adults, professionals. We say we want 14 to do a cesarean. This stat business is 15 television nonsense. 16 Q. If I'm understanding your review of 17 the fetal monitoring strip, your assessment of 18 the situation is that as of 3:30, it was 19 reasonable to want to proceed to deliver 20 Mrs. Gregory by means of a cesarean section 21 primarily because of her failure to progress? 22 A. Correct. 23 Q. And if I understand your testimony, 24 that when Dr. Bruner came back into the room 25 after having been advised that there was now an 55 1 episode of significant drop in the fetal heart 2 rate, that posed a very different situation 3 than what was present as of 3:30, fair? 4 A. Yes, sir. 5 Q. Okay. And it was that situation 6 that created a sense of emergency to get the 7 child delivered as quickly as possible? 8 A. That's what I understand from the 9 testimony that's been given. 10 Q. Okay. I'll ask you to assume or 11 maybe you recall from Dr. Bruner's testimony 12 that when he came back into Mrs. Gregory's room 13 after having been advised of the fetal 14 bradycardia and looking at the situation, he 15 made a decision that he wanted a C-section done 16 on a stat basis and immediately began the 17 process of getting the various plugs unplugged 18 and getting the patient wheeled toward the 19 operating room. 20 Is that a fair characterization of 21 your understanding of his testimony on that 22 time frame? 23 A. Yes, sir. 24 Q. Am I right that the electronic 25 fetal monitor strip in this case suggests that 56 1 it was unplugged at 3:42? 2 A. Tracing ends somewhere around 3:41 3 to 3:42, yes. 4 Q. Suggestive that it was as of that 5 time that the plug was pulled, so to speak, to 6 the electronic fetal monitor? 7 A. Yes, sir. 8 Q. Would you also agree with me based 9 on your experience in the hospitals that you've 10 worked at, that not every clock in the hospital 11 is coordinated to the exact minute of every 12 other clock? 13 A. That has been my experience in the 14 hospitals I have been in. 15 Q. Okay. Would it be fair to say that 16 if the C-section order that was given in 17 response to the fetal bradycardia occurred 18 around 3:42, that the document that 19 Mr. Schneider had showed you concerning the 20 emergency surgery call notification list 21 suggests that not more than two minutes, 22 depending on how clocks appeared in the 23 hospital, elapsed between the time of that 24 order and the time of the notification to the 25 Health Line operator? 57 1 MR. SCHNEIDER: Objection. 2 A. I'm sorry. 3 MR. BARRON: Do you recall the 4 question? Maybe I should give you the exhibit. 5 Do you have the exhibit that you showed the 6 doctor? 7 A. What's the question? 8 Q. The question is, if the C-section 9 order given in response to the fetal 10 bradycardia was given around 3:42, that 11 document, the emergency surgery call 12 notification list suggests a call to the Health 13 Line operator at 3:44, correct? 14 MR. SCHNEIDER: Is that a question? 15 Q. Yes. Am I correct that that's what 16 that document shows? 17 A. Yes. It shows 3:44, yes, sir. 18 MR. SCHNEIDER: Objection. 19 Q. Under that scenario, there would be 20 at a maximum a two-minute time period between 21 the order for the C-section given in response 22 to the fetal bradycardia and the notification 23 of the Health Line operator, fair? 24 MR. SCHNEIDER: Objection. 25 A. Yes, sir, two minutes. 58 1 Q. Okay. Am I right, doctor, that 2 there are classifications of different kinds of 3 hospitals as regards their obstetrical units, 4 levels I, II and III? 5 A. Yes, sir. 6 Q. Okay. And a hospital like 7 Providence Hospital would be considered a level 8 I hospital? 9 A. Could be, yes, sir. 10 Q. And am I right that for some time 11 now there's been a concept in obstetrics called 12 the 30-minute rule in which the time period 13 between the decision to do an emergency 14 C-section to the time of skin incision should 15 be within 30 minutes. Are you familiar with 16 that concept? 17 MR. SCHNEIDER: Objection. 18 A. I'm familiar with that concept, 19 yes, sir. 20 Q. And if this -- I know we've already 21 talked about the difficulty on knowing exactly 22 on a minute-to-minute basis when things 23 occurred, but if the order for the emergency 24 C-section was given sometime around 3:42, and 25 the skin incision was made around 4:05, that 59 1 would indicate that the C-section was carried 2 out well within the 30-minute rule, correct? 3 MR. SCHNEIDER: Objection. 4 A. Yes, sir. 5 Q. Okay. And even if the stat 6 C-section was ordered at 3:38 as suggested by 7 another entry in the record, if the skin 8 incision was performed by 4:05, that would 9 still indicate the delivery was accomplished 10 within the 30-minute rule, correct? 11 A. Yes, sir. 12 Q. Okay. The 30-minute rule, did that 13 come into existence through the American 14 College of Obstetrics & Gynecology or how did 15 that come into being, do you know? 16 MR. SCHNEIDER: Objection. 17 A. A bunch of experts picked a number 18 out of the air. It has no foundation or 19 scientific fact anywhere else. It's just been 20 made up out of nothing. 21 Q. Okay. There's a notation in the 22 chart about meconium stained fluid having been 23 detected at approximately 7:40 a.m. when the 24 membranes were ruptured. 25 What significance, if any, do you 60 1 give to the fact that there was thick meconium 2 stained fluid noted at 7:40 a.m.? 3 A. Meconium stained fluid was noted. 4 Q. Okay. In your view, does that in 5 have any significance one way or the other in 6 the outcome of this case? 7 MR. SCHNEIDER: Objection. Outcome 8 in what way? 9 Q. In relation to that Trent has 10 damage to his brain, to his central nervous 11 system. 12 MR. SCHNEIDER: Objection. I 13 believe this witness indicated he's not 14 qualified to make that judgment, but I object. 15 A. I think it has bearing on his 16 subsequent pneumonia that occurred, yes. 17 Q. Okay. Just briefly, could you 18 explain what you mean by the connection between 19 the meconium stained fluid and the pneumonia 20 that developed? 21 MR. SCHNEIDER: Objection. 22 A. The biggest threat of meconium is 23 subsequent aspiration in the peripartum period 24 by the baby of the meconium, the particulate 25 matter therein causing subsequent chemical 61 1 pneumonitis or pneumonia. That is of 2 significance to an obstetrician. 3 Q. In your view, was the pneumonia 4 that Trent developed a cause of his 5 subsequently measured and detected brain 6 injury? 7 MR. SCHNEIDER: Objection. 8 A. I don't think I'm qualified to 9 answer that question. 10 Q. Do you agree with Dr. Bruner's 11 decision in light of the urgency to forego a 12 preoperative sponge count? 13 A. My answer to that is yes. It's 14 something I've done myself. 15 Q. Do you have any understanding from 16 your review of this case as to what orders, if 17 any, were given by Dr. Bruner regarding a 18 postoperative sponge count? 19 A. I have no understanding. 20 Q. Okay. Would you agree with me that 21 if a surgeon gives an order for no preoperative 22 sponge count because of time urgency or some 23 other reason, it does make it more difficult to 24 determine whether or not all the sponges have 25 been removed? 62 1 A. It can. 2 Q. Okay. Would you agree with me, 3 doctor, that it would be speculative at best 4 for a physician to say, if this child had been 5 delivered at 3:45 p.m. as opposed to 4:08 p.m., 6 he would not have any brain injury? 7 MR. SCHNEIDER: Objection. You're 8 asking him if he's qualified to make that 9 neurological judgment? 10 MR. BARRON: My question, I think, 11 is fairly clear. 12 A. I have no opinion. 13 Q. Are the opinions that you've given 14 here today, doctor, opinions that you hold to a 15 reasonable medical probability or certainty? 16 MR. SCHNEIDER: Objection. 17 MR. BONEZZI: I hope so. 18 A. Yes, sir. 19 MR. BARRON: Thank you, doctor. 20 That's all I have. 21 MR. SCHNEIDER: I have one follow 22 up question, if I might, doctor. 23 EXAMINATION OF METHOD A. DUCHON, M.D. 24 BY MR. SCHNEIDER: 25 Q. When you were asked about this 63 1 30-minute rule, you said that it was, quote, 2 made up out of nothing, no scientific basis and 3 fact. 4 Could you explain to me what you 5 mean by that? 6 A. There is no scientific evidence, 7 proof, that 30 minutes to start a cesarean 8 saves baby's lives, increases, you know, 9 improves their outcome. It might be one 10 minute, it might be an hour that we have, and 11 so it has been made up as sort of a standard 12 out of nothing. There is no proof that 30 13 minutes has any scientific bearing on the 14 outcome of cases. 15 Q. So is it fair to say under some 16 circumstances, it would be reasonable to 17 deliver the baby very, very quickly, much 18 faster than 30 minutes and other circumstances 19 it could be reasonable to take more than 30 20 minutes? 21 A. It could -- obviously, it can take 22 more than 30 minutes, it can take less. 23 Q. Okay. And having done something 24 within 30 minutes does not cloak it with 25 reasonableness in terms of the way that 64 1 physicians conduct themselves, does it? 2 A. As I said, the standard is based on 3 no scientific evidence. 4 Q. Okay. 5 MR. SCHNEIDER: Thank you. 6 MR. BARRON: Doctor, just by way of 7 follow up. 8 EXAMINATION OF METHOD A. DUCHON, M.D. 9 BY MR. BARRON: 10 Q. Do you have any contact yourself 11 with level I hospitals or is all of your 12 practice at level II and above? 13 A. I presently practice at a level II 14 and a level I hospital. 15 Q. Which hospital do you practice at 16 that's level I? 17 A. Lake West. 18 Q. Okay. Does it have as a goal 19 compliance with this so-called 30-minute rule 20 for cesarean sections? 21 MR. SCHNEIDER: Objection. Go 22 ahead. 23 A. I think it has the goal of 24 delivering optimal healthcare to women in labor 25 and delivery. 65 1 Q. Does it have any published policies 2 or protocols that relate to the 30-minute rule? 3 MR. SCHNEIDER: Objection. 4 Q. Does Lake -- 5 MR. BONEZZI: Excuse me. Are you 6 asking that once the decision is made to 7 perform a C-section, is there anything in 8 writing that allows the physician to take 30 9 minutes? 10 MR. BARRON: No. 11 MR. BONEZZI: Okay. 12 MR. BARRON: I'm just asking 13 whether or not that hospital -- 14 Q. Lake West is the name of it? 15 A. Yes, sir. 16 Q. Does it, does the hospital have any 17 written documentation that references this 18 so-called 30-minute rule? 19 A. Not that I'm aware of. 20 Q. Okay. Are you aware of any 21 publications by the ACOG that reference the 22 30-minute rule? 23 A. Yes, sir. 24 MR. SCHNEIDER: Objection. 25 Q. Could you identify what 66 1 publications of the American College of 2 Obstetrics & Gynecology discuss the 30-minute 3 rule? 4 A. I'd have to go look them up. 5 Q. Okay. Do you recall what they say? 6 A. In the broadest strokes, yes. 7 Q. In the broadest strokes, what is 8 the publication on the ACOG say on that topic? 9 A. They think it's reasonable that you 10 should be able to accomplish a cesarean within 11 30 minutes from the decision to the incision. 12 MR. BARRON: That's all I have. 13 Thank you. 14 MR. BONEZZI: Donnalee, we will 15 read. 16 (Deposition concluded at 5:26 p.m.) 17 - - - - - 18 19 20 21 22 23 24 25 67 1 CERTIFICATE 2 The State of Ohio, ) 3 SS: 4 County of Cuyahoga. ) 5 6 I, Donnalee Cotone, a Notary Public 7 within and for the State of Ohio, duly 8 commissioned and qualified, do hereby certify 9 that the within named witness, METHOD A. 10 DUCHON, M.D., was by me first duly sworn to 11 testify the truth, the whole truth and nothing 12 but the truth in the cause aforesaid; that the 13 testimony then given by the above-referenced 14 witness was by me reduced to stenotypy in the 15 presence of said witness; afterwards 16 transcribed, and that the foregoing is a true 17 and correct transcription of the testimony so 18 given by the above-referenced witness. 19 I do further certify that this 20 deposition was taken at the time and place in 21 the foregoing caption specified and was 22 completed without adjournment. 23 24 25 68 1 I do further certify that I am not 2 a relative, counsel or attorney for either 3 party, or otherwise interested in the event of 4 this action. 5 IN WITNESS WHEREOF, I have hereunto 6 set my hand and affixed my seal of office at 7 Cleveland, Ohio, on this day of 8 , 2001. 9 10 11 12 13 14 Donnalee Cotone, Notary Public 15 within and for the State of Ohio 16 17 My commission expires February 7, 2002. 18 19 20 21 22 23 24 25 69 1 I N D E X 2 3 EXAMINATION OF METHOD A. DUCHON, M.D. 4 BY MR. SCHNEIDER........................... 4:6 5 EXAMINATION OF METHOD A. DUCHON, M.D. 6 BY MR. BARRON............................ 49:15 7 EXAMINATION OF METHOD A. DUCHON, M.D. 8 BY MR. SCHNEIDER......................... 62:23 9 EXAMINATION OF METHOD A. DUCHON, M.D. 10 BY MR. BARRON............................ 64:8 11 12 Exhibit 1 was marked..................... 5:10 13 Exhibit 2 was marked...................... 7:4 14 15 16 17 18 19 20 21 22 23 24 25 70 1 SIGNATURE OF WITNESS 2 3 4 5 6 The deposition of METHOD A. DUCHON, 7 M.D., taken in the matter, on the date, and at 8 the time and place set out on the title page 9 hereof. 10 It was requested that the 11 deposition be taken by the reporter and that 12 same be reduced to typewritten form. 13 It was agreed by and between 14 counsel and the parties that the Deponent will 15 read and sign the transcript of said 16 deposition. 17 18 19 20 21 22 23 24 25 71 1 AFFIDAVIT 2 The State of Ohio, ) 3 ) SS: 4 County of Cuyahoga ) 5 6 7 8 Before me, a Notary Public in and for 9 said County and State, personally appeared 10 METHOD A. DUCHON, M.D., who acknowledged that 11 he/she did read his/her transcript in the 12 above-captioned matter, listed any necessary 13 corrections on the accompanying errata sheet, 14 and did sign the foregoing sworn statement and 15 that the same is his/her free act and deed. 16 In the TESTIMONY WHEREOF, I have hereunto 17 affixed my name and official seal at this 18 day of A.D 2001. 19 20 21 22 Notary Public 23 24 25 My Commission Expires: 72 1 DEPOSITION ERRATA SHEET 2 3 RE: JULIE GREGORY, ETC., ET AL. VS. 4 SANDUSKY OBSTETRICS AND GYNECOLOGY, 5 INC., ET AL. 6 7 RRS File No.: 1930 8 Deponent: METHOD A. DUCHON, M.D. 9 Deposition Date: JUNE 13, 2001 10 11 To the Reporter: 12 I have read the entire transcript of my 13 Deposition taken in the captioned matter or the 14 same has been read to me. I request that the 15 following changes be entered upon the record 16 for the reasons indicated. I have signed my 17 name to the Errata Sheet and the appropriate 18 Certificate and authorize you to attach both to 19 the original transcript. 20 21 22 23 24 25