IN THE COURT OF COMMON PLEAS COUNTY OF CUYAHOGA STATE OF OHIO ROBERT PAOLONI, a minor, ) et al., ) ) Plaintiffs, ) ) vs. ) No. 327020 ) ERAST HAFTKOWYCZ, M.D., et al., ) ) Defendants. ) DEPOSITION OF DR. MARTIN L. GIMOVSKY TAKEN ON BEHALF OF THE DEFENDANT APRIL 24, 1998 1 2 3 INDEX OF QUESTIONERS 4 QUESTIONS BY: PAGE NO. 5 Mr. Walters 5 Mr. Allison 76 6 7 8 INDEX OF EXHIBITS 9 DEFENDANT'S 10 NO. DESCRIPTION PAGE MKD. 11 A Curriculum Vitae 5 12 (Exhibit retained by Mr. Walters.) 13 14 15 16 17 18 19 20 21 22 23 24 25 2 1 IN THE COURT OF COMMON PLEAS COUNTY OF CUYAHOGA 2 STATE OF OHIO 3 ROBERT PAOLONI, a minor, ) 4 et al., ) ) 5 Plaintiffs, ) ) 6 vs. ) No. 327020 ) 7 ERAST HAFTKOWYCZ, M.D., et al., ) ) 8 Defendants. ) 9 10 11 DEPOSITION OF WITNESS, DR. MARTIN L. 12 GIMOVSKY, produced, sworn and examined on the 24th day 13 of April, 1998, between the hours of eight o'clock in 14 the forenoon and six o'clock in the afternoon of that 15 day at the offices of Grey & Ritter, 701 Market, St. 16 Louis, Missouri, before CAROLYN A. KOSTECKI, a Notary 17 Public and Court Reporter within and for the State of 18 Missouri, in a certain cause now pending in the Court 19 of Common Pleas, County of Cuyahoga, State of Ohio, 20 wherein ROBERT PAOLONI, et al, are Plaintiffs and 21 ERAST HAFTKOWYCZ, M.D., et al., are Defendants. 22 23 24 25 3 1 A P P E A R A N C E S 2 For the Plaintiff: 3 Mr. JOHN G. LANCIONE 4 1300 East 9th Street 1717 Bond Court Building 5 Cleveland, Ohio 44114 6 For the Defendant, Haftkowycz: 7 MR. STEPHEN E. WALTERS REMINGER & REMINGER 8 The 113 St. Clair Building Cleveland, Ohio 44114 9 (216) 687-1311) 10 For the Defendant Fairfield Hospital: 11 MR. THOMAS ALLISON Cleveland, Ohio 44114 12 (Via Telephone) 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 IT IS HEREBY STIPULATED AND AGREED, by 2 and between counsel for the Plaintiffs and counsel for 3 the Defendants that this deposition may be taken in 4 shorthand by Carolyn A. Kostecki, a Notary Public and 5 Shorthand Reporter, and afterwards transcribed into 6 typewriting. 7 8 * * * * * 9 10 DR. MARTIN L. GIMOVSKY 11 of lawful age, produced, sworn and examined on behalf 12 of the Defendant Haftkowycz, deposes and says: 13 14 DIRECT EXAMINATION 15 BY MR. WALTERS: 16 Q. Doctor, my name is Steve Walters. I 17 represent Dr. Haftkowycz in a case that's been filed 18 against him which you are aware I assume because 19 you're here to offer expert testimony on behalf of the 20 Plaintiff; correct? 21 A. Yes, sir. 22 Q. I'm going to ask you some questions 23 today. If at any time I don't make myself clear or we 24 don't understand each other tell me and I will do the 25 best I can to rephrase the question so that you do 5 1 understand. Okay? 2 A. Yes, sir. 3 Q. Also understand this is my one and only 4 opportunity to talk to you before the trial in this 5 matter, so that I am going to rely on your answers 6 that you give me. Okay? 7 A. I understand. 8 Q. Okay. Would you state your full name for 9 the record. 10 A. Martin Larry Gimovsky. 11 Q. And Doctor, I was handed by Mr. Lancione 12 a CV, which is a number of pages which I assume you 13 provided to him. Are there any changes, additions or 14 deletions you would like to make to the CV at this 15 point in time? 16 A. No, that's an up-to-date CV. That's why 17 I brought it. 18 Q. Okay. I'm going to have it marked and 19 attached to the transcript. 20 (Whereupon, Defendant's Exhibit 1 was 21 duly received, marked for identification, and filed 22 herewith as part hereof.) 23 Q. (By Mr. Walters) Now, you have a file 24 here with you. And can I take a quick look at what 25 you have. That in the black binder is what? 6 1 A. This is the medical records of Beth and 2 Robert Paoloni. 3 Q. Okay. And those were provided to you by 4 Mr. Lancione; correct? 5 A. Yes, sir. 6 Q. You have a depo transcript, or some more 7 records. 8 A. Those are records from Dr. Kline. 9 Q. Okay. What else? 10 A. Prenatal records from Dr. Haftkowycz. I 11 also have the depositions in this matter that were 12 provided from Kathleen 'Hugney', Richard Paoloni, Gina 13 Marie Sutcliffe, Fawn Hoefke, and Dr. Haftkowycz, as 14 well as Beth Paolini. 15 Q. Did you review her husband's deposition, 16 Richard Paolini? 17 A. Yes, I have. 18 Q. And have you reviewed any expert reports? 19 A. Yes, I have been given expert reports 20 from James Nocon, and a second one from a Dr. 21 'Rysowsky'. 22 Q. Did you see Dr. O'Grady's report in this 23 case? 24 A. No, I haven't. 25 Q. How about Phillip 'Neuwicki' did you see 7 1 his report? 2 A. I just saw it right here as I sat here 3 now. I didn't have a chance to read it. 4 Q. I also have in my hand, and I'm not sure 5 what all this is, and just so Tom's clear, a number of 6 pages. A couple of things appear to be articles and 7 then there are some notes and some other things. Can 8 you identify for the record what those are. 9 A. This is a summary of the records, medical 10 information. This is my working chart on this matter 11 that describes the labor curve of Beth Paolini. Some 12 of the issues brought up with her case, the data. 13 Q. That's on the back of that document. 14 That's your handwriting? 15 A. That's all my handwriting. 16 Q. Let me back up. Did you do the labor 17 curve analysis during the course of your review of the 18 records or sometime thereafter? 19 A. During my review of the records. 20 Additionally I have an estimated growth 21 chart. I have also written on some of the newborn 22 records describing the baby size after birth. And in 23 this particular case I have some references from the 24 medical literature that I can read into -- 25 Q. -- Go ahead, please. 8 1 A. One is an article by Carpenter. That's 2 from the American Journal of Obstetics and Gynecology, 3 Volume 144, Page 768, 1982. And it describes 4 gestational diabetes. The next is a table from the 5 Third Edition of Obstetics as edited by Steve 'Gavy'. 6 This is the current edition I believe, and it's Table 7 52-2, which talks about the classification of diabetes 8 complicated pregnancy. And thirdly, I have a paper 9 from 'Hadlock' from Radiology 1984, Volume 150, Page 10 535, which describes the estimation of fetal wave by 11 ultrasound. And I brought these because I felt they 12 added some depth to the discussion of the issues here. 13 Q. Is it possible for either us to get 14 copies today or for you to provide those to us at some 15 point. 16 A. Not a problem, be glad to. 17 Q. And that includes your notes as well. 18 And I'm going to go through that with you so that I 19 understand what you wrote down. Can I see that 20 document with the handwriting on the back. 21 Did you receive any medical records 22 relating to Beth Paoloni's subsequent pregnancy, the 23 pregnancy after this one? 24 A. I don't think I saw any medical records 25 from that. I know she subsequently had another 9 1 pregnancy. I read about it in a deposition I believe, 2 the care she got the next time. 3 Q. Would it be fair for me to state that you 4 have not seen any records from that? 5 A. I believe so. 6 Q. Now, have you removed anything from the 7 file today, Doctor? 8 A. Only the correspondence I was instructed 9 to. 10 Q. And the correspondence that you received 11 from Mr. Lancione's office. Is there any summary of 12 the events related to this matter? 13 A. There is correspondence in there 14 outlining some of the times and dates that things 15 occurred. I don't know that you would call it a 16 summary. 17 Q. I don't want to make this an issue, but 18 if there's something in there that you may have relied 19 on -- 20 A. -- None of the information in those 21 letters are what I relied on to reach my opinions in 22 this case. My opinions come from the medical records. 23 Q. Were the issues set forth for you by Mr. 24 Lancione's office when the case was presented to you? 25 A. I'm sorry. 10 1 Q. Were the issues set forth in the case? 2 A. I don't remember. I think that I was 3 asked by his office to review some medical records 4 about a baby who was injured at birth. I don't think 5 there was much more instruction than that. 6 Q. Did you know at that time that he 7 represented the baby and the family? 8 A. Yes, sir. 9 Q. Now, this literature that you have 10 provided us is that related to a literature search 11 that you have done in relation to this case? 12 A. Yes, I think that's fair to say. What I 13 did was look for information to help me understand 14 what Dr. Haftkowycz's training was at the time that he 15 was trained and put that into the context of what 16 occurred. And so, I didn't rely on these papers to 17 form my opinions, but I went back afterwards to make 18 sure that my own teachings and feelings in this case 19 would be supported by what I think are the important 20 pieces of literature that talk to some of these 21 issues. 22 Q. Did you review any other literature that 23 you have not provided? 24 A. In teaching doctors all the time about 25 these very common issues I routinely come across 11 1 things that relate to the issues in this case, but not 2 in any way -- I didn't seek out or look at any other 3 issues, literature, particularly for this case if I 4 understand your question. 5 Q. Well, what I want to understand is how 6 you got to those three articles. Did you know they 7 existed and go seek them, or did you do a MedLine 8 search; how did you do it? 9 A. I understand your question. 10 I picked out those particular references 11 because I knew they were there, and confirmatory to my 12 own report that I had written last year, and to also 13 get an idea of how Dr. Haftkowycz was trained given 14 that he was trained in the middle 1980's. So, I 15 wanted to go back to see what the literature showed at 16 that time. I knew there was that literature there. 17 Q. I'm going to try to find out a little bit 18 about your practice. And if you can tell me; what is 19 it like? 20 A. My practice -- I'm currently the Chairman 21 and Program Director at St. John's Mercy, as well as 22 the Director of Interpartum Obstetics. And in these 23 roles I have a fair amount of administrative and 24 research work, but about half of my time is directed 25 at clinical in my own private practice as well as with 12 1 residents and medical students. So, my time is about 2 evenly split overall. 3 Q. Your clinical practice deals with a broad 4 population of patients? 5 A. Yes, I have a very broad population, 6 although my specialty is in maternal fetal medicine, 7 and most of my private patients are very high risk 8 patients. As the Director of the seventh largest 9 obstetrics unit in the United States I deal with an 10 enormous range of everyday problems. 11 Q. But can we agree that a majority of the 12 patients that you see are high risk patients, or 13 follow -- let's put it that way -- a majority of the 14 patients you follow are high risk patients? 15 A. I would say that within the context of 16 just my office practice true, but since I work in a 17 general obstetrics clinic with the residents and help 18 over a hundred different obstetricians with their 19 routine practice and issues, my clinical daily life 20 reflects around everyday obstetric problems. 21 Q. Do you have any estimation as to how many 22 medicolegal matters you get involved in during the 23 course of a year? 24 A. During the course of the last fifteen 25 years since I finished my training in maternal fetal 13 1 medicine I would estimate that I review six to twelve 2 cases a year. And over the fifteen years I would say 3 that's the average. 4 Q. Your breakdown Plaintiff versus 5 Defendant? 6 A. Always an interesting question. I review 7 the records of the people who obviously ask. And 8 initially I did defense reviews, and more recently 9 probably have a predominance of Plaintiff cases, 10 although I certainly have a fair number of defense 11 cases now. I would say it's split for a number of 12 60/40 Plaintiff to defense. 13 Q. At the present time do you have as a case 14 where you have rendered an opinion defending a doctor 15 in dealing with a shoulder dystocia? 16 A. Oh, absolutely. 17 Q. Have you testified in that case? 18 A. No, not yet. 19 Q. Where is that case? 20 A. I believe it's in your law firm, Reminger 21 & Reminger. 22 Q. That's the law firm. 23 A. I believe that's who it's with. 24 Q. Do you remember the lawyer that retained 25 you? 14 1 A. 'Marilana', and I don't remember her last 2 name. I believe that's a shoulder dystocia case. 3 Q. Any other ones? 4 A. I'm sure there are several others within 5 files or whatever, but that one comes to mind for the 6 obvious reason. 7 Q. Were you supportive in that case? 8 A. Yes, sir. 9 Q. Are you familiar with people or 10 obstetricians in the United States who are doing 11 studies on relationships between macrosomia and 12 obesity, and the various risk factors between 13 macrosomia and shoulder dystocia? 14 A. I would say part of what I do is related 15 to that in the way that I'm expected to teach about 16 it. And so, I keep abreast of the clinical or basic 17 science things that are occurring. Are you asking a 18 specific question or a general question? 19 Q. Well, sort of general. I know that there 20 are various facilities throughout the United States 21 that are studying this issue. Correct me if I'm 22 wrong. Am I correct about that? 23 A. I think there are certain groups that 24 have spent time and effort studying many of the 25 different clinical problems that have to do with birth 15 1 trauma. And that's been my interest over the years. 2 Q. But can we agree that the medicine 3 surrounding the predictability of shoulder dystocia 4 has been ever changing over the last ten years? 5 A. We can certainly agree there are 6 different opinions and different factors. And I would 7 agree with that. 8 Q. Do you have any idea how many hours you 9 have spent on this case reviewing the material, those 10 kind of things? 11 A. I would say six or eight. 12 Q. Doctor, can you pull for me Dr. Shah's 13 records real quickly because it seems to indicate that 14 you reviewed those. 15 A. Here is Dr. Shah's records. Those 16 records, is that what you are referring to? 17 Q. Well, I just wanted to make sure you and 18 I were dealing with the same -- 19 A. -- Those are the only records that I have 20 seen from Dr. Shah. 21 Q. Okay. Do you know what Dr. Shah's 22 background is? 23 A. No, I don't. 24 Q. Can you define your definition or give 25 your definition of the standard of care. 16 1 A. The standard of care is what a reasonable 2 and prudent practitioner offers as clinical expertise, 3 counseling, follow-up, all aspects of clinical care to 4 his patient in a clinical care scenario. 5 Q. Is that complete? 6 A. Well, it's certainly -- I could probably 7 expound forever, but I think it has to do with what a 8 reasonable practitioner given a certain level of 9 training, experience, the reason we have 10 certification, the reason we have boards in colleges, 11 to provide a patient with a good level of clinical 12 care. 13 Q. Will you be rendering any opinions -- and 14 I'm asking these questions, but I assume you're not 15 going to, but if I'm wrong tell me -- on Bobby 16 Paoloni's prognosis? 17 A. The only opinion that I have would not be 18 as an expert. 19 Q. Well then I don't want to hear it. 20 Because I assume you won't render that in the 21 courtroom. 22 A. No, sir. 23 Q. Will you render any opinions on whether 24 or not Bobby Paoloni's condition in the hospital after 25 birth was consistent with being born from a mom with 17 1 gestational diabetes? 2 A. Yes. 3 Q. Have you reviewed that? 4 A. I have reviewed his newborn records and 5 his newborn course, and I will be rendering an opinion 6 to that point. 7 Q. Tell me why you think -- what about Bobby 8 Paoloni's condition in the hospital suggested to you 9 that his mom had gestational diabetes. 10 A. Bobby Paoloni was a very, very large 11 infant, weighing eleven pounds and fourteen ounces, 12 who was born after a normal delivery complicated 13 ultimately by shoulder dystocia. After his birth he 14 had multiple complications, but the first issue is 15 that his head circumference was of normal size at the 16 75th percentile, and his birth weight was greater than 17 the 99 percentile. Infants of diabetic moms tend to 18 have babies who have trunk obesity and chest obesity. 19 And his discrepancy is a pathologic indicator that 20 this baby had that. 21 Furthermore, within the first hours of 22 life. I can tell you how many hours. At 23 approximately five hours of life at 6:30 a.m. on 4-20 24 he had a blood sugar of 19. And this response, acute 25 hypoglycemia, while certainly not specific is again a 18 1 common finding indicative of being an infant of a 2 diabetic. 3 In addition, in his newborn course the 4 patient had noted a low ionized calcium, another 5 finding although not diagnostic, but certainly 6 commonly seen in infants of diabetic mothers. 7 This infant in addition was a term infant 8 who had respiratory distress, and respiratory distress 9 is a common finding in term size or macrosomic infants 10 of diabetics. I note that the baby had bilateral 11 pneumothorax, so there's more than one cause for 12 respiratory distress, but that finding was there and 13 it is consistent with that finding. In addition, the 14 records indicate the baby did not have 15 hyperbilirubinemia, and did not have an elevated 16 hematocrit, which are two other findings which would 17 be consistent with the picture that I found when I 18 looked at Bobby Paoloni. So, those would be the 19 reasons why I would make that diagnosis on the baby 20 alone. 21 Q. Now, I grabbed some of your papers. The 22 first one appears to be a chart that you pulled out 23 dealing with head circumference and weight-length 24 ratios. And a second chart on length and weight. 25 A. These are Xerox copies from the medical 19 1 records of the classification of newborns based on 2 maturity and growth charts. And what I have done is 3 copy them and try to understand what the baby's 4 description was after birth. I was previously filled 5 in -- I guess it's Page 167 of the medical record. 6 And so, I used these charts that were here to make 7 that description. 8 Q. Okay. And it's your opinion -- just so I 9 understand -- that the baby's head circumference was 10 in the 75th percentile; is that accurate? 11 A. That's what I read in the medical chart. 12 Q. Did you look at the CBC that was done 13 when Mrs. Paoloni came to the hospital, the very first 14 one? 15 A. I'm sure I did. Can I refer to it? 16 Q. Well, I'm going to ask you about it only 17 from the standpoint -- I don't know if it has any 18 bearing or not -- the glucose level. 19 A. That's right. 20 Q. My recollection is it was 106. 21 A. Right. 22 Q. There was about -- I think she ate at 23 about seven in the morning and that level was taken 24 somewhere around four in the afternoon that that level 25 was drawn. 20 1 A. I remember that the value was that, I 2 don't know what the circumstances surrounding the 3 value was. 4 Q. Does that value in your mind mean 5 anything? 6 A. That value, depending on when the test 7 was drawn and what the circumstances around the test 8 would be might give an indication of what her fasting 9 and glucose blood sugar was that day. 10 Q. Would that be a normal glucose level for 11 a mom who shows up for an induction at term? 12 A. If it was a fasting blood sugar, yes, I 13 think it certainly would be elevated. 14 Q. And what would be the range? 15 A. The accepted range by plasma testing of 16 blood for accuracy for years and years was up to 105. 17 In the paper I provided for you suggests that the 18 upper limit of normal as early as 1982 was considered 19 to be 95 in terms of treatment. So, somewhere between 20 95. I think anything more than 95 is when 21 historically obstetricians charged with the risk of 22 taking care of babies under these circumstances have 23 understood adds to the risk of the baby. So, 24 somewhere above 95 and between 95 and 105. 25 Q. Now, how long should the patient fast in 21 1 order for that glucose level to be accurate? 2 A. Well certainly it should be a fast after 3 midnight of the night before and it should be in a 4 patient ideally treated with a carbohydrate challenge 5 to get the most accurate result. Clinically we very 6 seldom get such an optimal result. And so many times 7 we are forced to deal with occasionally less than 8 optimal type of data. And so, multiple samplings are 9 useful to be able to confirm or refute the normalcy 10 and adequacy of testing. 11 Q. If the patient doesn't fast does the 12 practitioner expect that glucose level to be higher or 13 lower? And I say doesn't fast, within the terms that 14 you set in your previous answer. 15 A. Interestingly, depending on the patient's 16 habitus and metabolism the blood sugar might be higher 17 or lower. And many patients, particularly very heavy 18 women, have hypoglycemia in response to any type of 19 food, and that abnormal response will drive the sugar 20 down. In any one case I don't think you could say, 21 but clearly differential. 22 Q. Just so I understand your opinion. Would 23 it be your opinion that that initial glucose level of 24 106 is an indicator that Mrs. Paoloni had gestational 25 diabetes? 22 1 A. If indeed the blood sugar was drawn under 2 the circumstances where it was a fasting blood sugar 3 then I would say it corroborates her earlier fasting 4 blood sugar, both of which make the diagnosis of being 5 overtly diabetic during pregnancy. 6 Q. How does gestational diabetes -- let me 7 back up -- what's the physiology of gestational 8 diabetes in a macrosomic infant or fetus? 9 A. In the widest general sense? 10 Q. Yes. 11 A. In the widest sense women who have either 12 fasting hyperglycemia or have an abnormal response to 13 carbohydrate loading during pregnancy tend to have 14 higher blood sugars and supply more sugar across the 15 placenta to their babies, lest their babies make their 16 own insulin and become very large. These babies also 17 have metabolic changes right after birth because of 18 the change in the metabolic environment they live in. 19 But the basic physiology is that sugar goes across the 20 placenta but insulin does not. And so, a relatively 21 normal baby will increase its supply of insulin in 22 response to all the glucose. And insulin is a very 23 powerful growth hormone and will develop very big 24 people. So, after birth babies are prone to low sugar 25 and big bodies. And that's what happens to them 23 1 during the third trimester. 2 Q. And diabetes in a pregnant mother left 3 untreated does the diabetes get worse? In other 4 words, do the glucose levels get higher as it remains 5 untreated? 6 A. Well, the majority of women who have 7 gestational diabetes will have higher blood sugars. 8 Those factors that increase blood sugar during 9 pregnancy get worse during the course of pregnancy, 10 particularly the second half. And so, most of the 11 patients we see regardless of how we treat require 12 more treatment. That is more strict dietary control, 13 greater amounts of insulin, different types of 14 insulin, because those factors that increase diabetes 15 during pregnancy are clearly increased in the second 16 half. 17 Q. And when treated with -- I assume that 18 the general treatment is diet and insulin; correct? 19 A. Yes, sir. 20 Q. On average when a suspected gestational 21 diabetic mom is treated by both diet and insulin in 22 the second half of pregnancy what happens to the 23 glucose level? 24 A. When a woman is diagnosed as having some 25 type of gestational diabetes whether diet controlled 24 1 or insulin regulated, certainly the nomenclature is 2 different enough, the purpose of treating them with 3 dietary as well as insulin is to drive the blood sugar 4 down and to minimize that increase in size to try to 5 normalize the size of the fetus. How successful that 6 is of course is hard to prove, but there are many 7 people who believe that even the mildest case of 8 gestational diabetes is keeping the fetal size down 9 because that's become more and more in obstetrics the 10 issue, the size of the baby. So, by regulating the 11 average blood sugar after it develops it the baby's 12 size is very dependent upon. So, as we bring the 13 sugar down we bring the size down in general. 14 Q. From your experience when moms are 15 treated with both diet and insulin do you see a 16 corresponding reduction in the size of the infant? 17 A. Of course each woman would has to be her 18 own control so it would be hard to know. 19 Q. Well, let me use a better example, a 20 better control group. 21 You've got a mom who is suspected with 22 gestational diabetes in the first pregnancy which was 23 untreated and then in the second pregnancy it is 24 treated with both diet and insulin. What would your 25 expectation be and what has your experience been in 25 1 that regard? 2 A. As we go to additional pregnancies under 3 that circumstance we always anticipate in the second 4 pregnancy, the third pregnancy, and the fourth 5 pregnancy bigger babies normally, and depending upon 6 the sex and the race of the baby involved. But I 7 think in general we could say that with reasonable 8 treatment we would expect a reasonable decrease in 9 size. And we would expect to be able to mitigate the 10 normal increase. That is, instead of increase in size 11 we routinely see and would expect to be able to move 12 toward more of a normalization. So, I would expect 13 that in her subsequent pregnancies in that particular 14 patient who was treated her second and third baby 15 might very well be much closer to the normal size. 16 Q. What's normal size? 17 A. Normal size obviously is a function of 18 genetics, the mother's environmental state, her 19 weight. Normal size being within getting babies to 20 the 90th percentile of weight which in general -- 21 Q. -- I'm sorry, I didn't understand what 22 you said. 23 A. Normal size is a bad term, I agree with 24 you, and average size. I would say moving the weight 25 down is really more realistic. But that there is no 26 1 way -- I could define mean size or medium size for a 2 population, but I can't define the mean size for a 3 given couple. 4 Q. And that's why I struggle with it. I 5 don't know how you judge whether you're being 6 successful with the use of insulin and diet or not. 7 A. Well, under the circumstances that you 8 gave me if the patient had a 12 pound baby the first 9 time and I treated her with insulin and diet and she 10 had a 10 pound baby the second time I would make the 11 connection that that was useful to her. 12 Q. And your example would expect all other 13 factors to be equal? 14 A. As close we could say in real life. 15 Q. Well, in the second pregnancy is the 16 gestational diabetes more severe? In other words, 17 does this mom's production of glucose become more 18 severe in the second pregnancy? 19 A. The question you asked about the natural 20 history of diabetes is that those factors that 21 increase glucose intolerance tend to increase with 22 age. So, as you get older you would expect and you 23 clinically see greater and greater amounts of a 24 problem. To say there's a direct, one-to-one 25 relationship would be very hard to do, but I would say 27 1 in general the trend is clearly that way. I wouldn't 2 expect a woman who had gestational diabetes at age 38 3 to not have any problem with diabetes at age 42. 4 Whereas the other way around she might have no problem 5 at 38 and have a problem at 42. 6 Q. Considering that Mrs. Paoloni was only 7 treated with diet in her first pregnancy that we're 8 here about, would you expect that she would be 9 spilling sugar into her urine? 10 A. I think that -- during her first 11 pregnancy? 12 Q. Yes. 13 A. I think that depending on the time of day 14 that she was examined and depending on the degree of 15 hyperglycemia pregnant women spill reliable or 16 unreliable sugar in the urine. And that's why we use 17 blood screening tests. So, to be able to say that 18 it's more likely than not I wouldn't have an opinion. 19 It's certainly possible, it's certainly common. In 20 her case I don't know one way or the other. We know 21 that the threshold for putting glucose into the urine 22 is low during pregnancy and so I wouldn't be surprised 23 if she had. And there's just not a reliable way for 24 me to tell you. 25 Q. So, doing urine tests during pregnancy is 28 1 not an accurate way of monitoring the patient's blood 2 sugar; is that correct? 3 A. Well, I don't think that's exactly what I 4 said. 5 Q. I made a conclusion off your statement. 6 A. I know. The use of dip sticking the 7 urine for glucose and acetone for the diabetic is very 8 useful in terms of the production of ketone bodies and 9 large amounts of sugar which will increase an 10 increased risk for a diabetic having further 11 complications from the diabetes. So, with a patient 12 who has diabetes then that becomes very important and 13 we have patients check both their urine and their 14 blood. And we certainly do that in the office and 15 that's a routine part of prenatal care. 16 Q. Do you ever -- and I want to see if I can 17 get back to my area I was on before. And that is the 18 evaluation of Bobby Paoloni in determining that his 19 mother was a gestational diabetic based on his 20 appearance. In your practice as it stands now do you 21 ever follow children after you deliver the mom? 22 A. No, sir. 23 Q. So, your opinion would be based upon 24 literature review; would that be accurate? 25 A. My opinion is based upon twenty years of 29 1 being an attending perinatalogist and taking care of a 2 wide variety of children under normal and abnormal 3 circumstances working incidentally on a daily basis 4 with neonatalogists. So, it's more than reviewing the 5 literature and less than the hands-on care of the 6 baby. 7 Q. But you would agree with me that a 8 neonatalogist or a pediatrician would have more 9 insight into that area typically in general than you 10 would? 11 A. I would agree with that. I would agree 12 it's possible for that to be true. 13 Q. Doctor, how do you define macrosomia? 14 A. Macrosomia is defined in the obstetric 15 literature as a birth weight, an estimated fetal 16 weight greater than 4000 grams in an infant, 17 particularly an infant of a gestational diabetic, or 18 greater than 4500 grams in a woman who would have no 19 evidence to suggest there's a problem with 20 hyperglycemia. So, in the setting of gestational 21 diabetes it's my opinion that the literature supports 22 the diagnosis of 4000 as macrosomia. In the absence 23 of gestational diabetes the gray one is between 4000 24 and 4500. 25 Q. Would you agree with me -- and I'm going 30 1 to go through some medical principles -- what you just 2 said was the entire population in women that you don't 3 suspect any kind of gestational diabetes 4500 grams is 4 the cut off for macrosomia; correct? 5 A. I think that's the majority opinion of 6 the diagnosis. 7 Q. And in a woman with gestational diabetes 8 or elevated sugar levels 4000 grams is the cut off; is 9 that correct? 10 A. Yes, sir. 11 Q. And why is there a distinction? 12 A. The distinction has to do with the fact 13 that diabetic infants have a proportionately larger 14 body and head size. And so, the risk of birth trauma 15 particular to the neck, the clavicle, the upper 16 extremities are much greater because the head of the 17 infant is easily adapted to the pelvis, whereas the 18 shoulder girdle is now disporportionately bigger at 19 any given weight predisposes to injury. So, really it 20 has to be with the relationship between the head size 21 and body size. And in diabetics it's optimal to cause 22 trauma, whereas in a non-diabetic where the head size 23 is particularly large it's likely the patient won't 24 deliver. Diabetics don't have that luxury. 25 Q. Would you agree with me that the 31 1 incidence of shoulder dystocia in all vaginal 2 deliveries is about 1 percent? 3 A. The diagnosis and the prevalence of 4 shoulder dystocia depends very strongly on who's 5 making the call. If you said shoulder dystocia 6 sufficient to cause an injury, shoulder dystocia 7 sufficient to require a McRoberts maneuver. Shoulder 8 dystocia is just an empty term perhaps meaning any 9 difficulty with delivery is very hard to define. 10 Q. Let me back up because this is important. 11 What is your definition of shoulder 12 dystocia? 13 A. For me the definition of shoulder 14 dystocia is the complication requiring extra maneuvers 15 to effect the delivery. And that's an attempt to look 16 for subset, otherwise the term is not specific enough 17 to be helpful. 18 Q. So, we can agree it doesn't require an 19 injury, what you're saying is shoulder dystocia is 20 anything that requires the obstetrician to perform an 21 additional maneuver to deliver the baby? 22 A. I think that's fair, yes. 23 Q. But can we agree that the prevalence of 24 shoulder dystocia in all vaginal deliveries is about 1 25 percent? 32 1 A. I don't how I could come up with that 2 number using that definition. 3 Q. Okay, fair enough. 4 Is it your opinion that other 5 obstetricians use a different definition for shoulder 6 dystocia? 7 A. It's my opinion that having studied and 8 reviewed this information depending upon whether or 9 not we use very strict or very lax terms the diagnosis 10 and thus the prevalence varies enormously. I know 11 people who would consider the diagnosis to be made 12 when there's an injury, specific injury in the baby, 13 and the people who make the diagnosis when the mother 14 can't spontaneously deliver completely on her own. 15 So, there's a wide range. And that's what keeps me 16 from being able to say what the exact incidence is. 17 It's not a yes or no. 18 Q. Can you give me a list of risk factors in 19 a pregnant mom for macrosomia? 20 A. For macrosomia? 21 Q. Yes. 22 A. The most important risk factor for 23 macrosomia, that is just fetal size irrespective of 24 injury, which is your question, you're not talking 25 about -- 33 1 Q. Right. 2 A. Is gestational diabetes or overt diabetes 3 of some type. The next most strong relationships have 4 to do with maternal weight at birth, paternal size, 5 material habitus and weight itself. And there are 6 genetic causes of very large babies too, but they're 7 fairly uncommon. So, I would say that the most 8 frequent causes that we can make a diagnosis with 9 relates to problems that have to do with diabetes 10 although those are not the only causes. Certainly the 11 next biggest group or the two large groups are 12 diabetes in pregnancy and constitutional, that is the 13 genetics made this baby big. Those are the two big 14 groups. 15 Q. Do you know what Mrs. Paoloni's weight 16 was at birth? 17 A. Her weight at birth I don't remember 18 offhand. I seem to have it in my memory somewhere, 19 but not the specific -- 20 Q. Did you receive that information from 21 someone? 22 A. I think I read it somewhere. I don't 23 remember specifically so I can't tell you. I know her 24 weight at delivery, but I don't remember her birth 25 weight per se. It's an interesting factor. 34 1 Q. Did you consider -- for purposes of your 2 opinion in this case did you consider that important? 3 A. I consider that of interest, but not the 4 standard of care requiring you to delve a right out 5 type question that you would ask. 6 Q. Got you. Can we agree that no single 7 risk factor or set of risk factors is predictive of 8 macrosomia? 9 A. Well, we can say that predicting 10 macrosomia requires the consideration of a large 11 number of variables. Let's put it that way. 12 Q. If you tell me that you can't answer my 13 question then we can put it that way. My question is 14 sort of simple. It just says no one risk factor or 15 any set of risk factors is predictive of macrosomia. 16 A. Well, one risk factor that is close to 17 predictive is previous large baby. That is probably 18 the single risk factor that helps after a patient has 19 already undergone the labor and delivery of a large 20 baby. 21 Q. Beyond previous large baby anything else 22 that would be in your mind either as a set or 23 singularly predictive of macrosomia? 24 A. The two other issues that I mentioned 25 before, diabetes in pregnancy, any degree of abnormal 35 1 hyperglycemia regardless of the terminology, and the 2 constitutional size of the parents. That is, parents 3 who are very large have larger children. 4 Q. We can agree -- and this is what I'm 5 getting at. Based upon that information alone as a 6 clinician you cannot predict macrosomia, you can in 7 your own mind say these are things that may lead to 8 macrosomia; correct? 9 A. You can say these are things that are 10 common associations. They don't make the diagnosis of 11 macrosomia. Is that your question? 12 Q. That's my point. 13 A. You don't make the diagnosis of 14 macrosomia, no. 15 Q. Can we agree that ultrasound done at term 16 has the widest margin of error in relation to any 17 ultrasounds done over the course of pregnancy? 18 A. Using ultrasound to estimate the fetal 19 weight -- 20 Q. At term. 21 A. -- Has a wider range numerically at term 22 than it does earlier. 23 Q. And when you say -- wider range of error 24 at term is what I'm saying. 25 A. Reproducibility of the measurements is 36 1 what I'm saying. In terms of the size of the baby and 2 using ultrasound as a single predictor or weight the 3 range is greater in the third trimester than the 4 second trimester, than the first trimester. You could 5 say that. 6 Q. I'm trying to see if we can agree. Maybe 7 you can give me a yes or no one of these times. 8 From the beginning of a pregnancy to the 9 term the use of ultrasound as a predictor of fetal 10 size becomes less reliable; would that be accurate? 11 A. No, that would be totally wrong. Because 12 what happens is most of the growth that a baby 13 undergoes is in the second half of the pregnancy. And 14 so, the wide range of the numbers represents those 15 growth factors that we're talking about. And in fact 16 by using growth curves, which were available in this 17 case, this baby was already on the large size. So, we 18 do follow the growth and make accurate estimates of 19 the fetal size, we have a wider range because that's 20 the normal biology, is the wider range. That is to 21 say that in the first trimester we're accurate to X 22 percent, and in the second trimester the Y percent, 23 and in the third trimester Z percent does not take 24 into the fact that babies have a wider range as we go 25 from one to two to three. And so, its accuracy is not 37 1 the question. Its accuracy is very good. What it is 2 the range of what we're studying is bigger. And so, 3 by understanding where and how babies grow we use that 4 information in a very germane way. It's very 5 simplistic to look at it the other way. 6 Q. Okay. Well, let's back up. As the baby 7 gets larger the range of what you're studying is 8 larger and as a consequence the error in terms of 9 reliability of ultrasound measurements is greater; is 10 that fair? 11 A. The error in terms of the number of grams 12 the baby weighs? 13 Q. Percentage in terms of estimated fetal 14 weight on whatever basis ultrasound uses. 15 A. I don't know how you could possibly 16 answer that question because what happens as the 17 pregnancy ensues there's a wider range in what we're 18 looking at. And so, to know up front that answer I 19 don't know how to do that. Early in pregnancy babies 20 have a very narrow range of variation in size. And as 21 we go along a big variation. Ultrasound accurately 22 measures those factors. A femur length is a femur 23 length is a femur length. But the estimation of 24 weight varies in terms of how many grams or what 25 percentage is based on other factors which are the 38 1 biologic way that babies develop. 2 Q. But you don't see on ultrasound at term 3 that are more easily predictive early on because you 4 know how the baby progresses. 5 A. Well, to try to answer. If I understand 6 the question what you're trying to say is. The 7 gestational age of a baby is much more accurately 8 looked at than the weight anyhow. Okay. The 9 gestational age is the main factor. And the range of 10 the weights around the age is the other factor we're 11 talking about here. When we look for the gestational 12 age of a baby early in pregnancy, and those are 13 morphologic factors, the femur length, the head size, 14 the circumference we can be within a week. When we 15 look at that at term we're within three weeks is what 16 the standard rule is. So, in that sense the sizes 17 vary. The gestational age is fixed. We know what the 18 gestational age is based on earlier exams, and we know 19 there's a range of how big the baby will grow because 20 that's constitutional more than anything else. 21 Q. And I don't know that we're disagreeing 22 frankly. I don't know that we are, but it's hard for 23 me to get out of you an answer that is completely 24 responsive. You're not doing anything -- I'm not 25 trying to say anything that is meant to insult you or 39 1 anything. Can we agree that you as a clinician 2 suspect that estimated fetal weight by ultrasound done 3 at term had a higher degree of error than estimated 4 fetal weight done by ultrasound at 20 weeks? 5 A. It has a greater degree of error. I'm 6 trying to figure out how to answer that. I think it 7 has a wider range. 8 Q. Well here, let me use your report as an 9 example. 10 A. Use my report. 11 Q. Because then we may be able to put it 12 into context. 13 A. Okay. 14 Q. I read it on the airplane so I know you 15 said something. Here we go. The very last paragraph. 16 You say, "With an actual birth rate of 5394 grams a 17 scan with an accuracy of 15 percent." What do you 18 mean by that? 19 A. I mean based upon what's known about the 20 sonographic estimation of weight most of the time 21 within a standard deviation plus or minus we're within 22 15 percent. 23 Q. Okay. Is that at term, at twenty weeks, 24 and at three weeks? 25 A. That's going across the whole range at 40 1 which fetuses are measured. 2 Q. Have you seen any literature that would 3 suggest to you that that percentage increases as you 4 get closer to term? 5 A. I have seen literature that suggests that 6 that range is less or more. So, there's literature to 7 say that it's as low as 5 or 6 percent, or as high as 8 22 or 23 percent. This is the standard that I believe 9 is really the standard we use in everyday life. 10 That's why I brought that. 11 Q. Okay, got you. 12 Can we agree that the routine use of C 13 section can't be justified in the general population 14 for suspected macrosomia? 15 A. We can agree that it's not appropriate to 16 use Ceasarean section every time that there's a baby 17 that weighs 4000 grams or more for the general 18 population. 19 Q. Now, let's get to your report, May 13, 20 1997. Are there any drafts of this report that you 21 have? 22 A. Not that I have with me. I don't think 23 so. 24 Q. And my question is more simple. Did you 25 do a draft, revise it on your PC, or anything like 41 1 that? 2 A. Usually if I have a draft that's anything 3 more than a typo I have two copies of it. So, it 4 might have been a typo. 5 Q. Two copies of your report? 6 A. Yes, I would have more than one edition 7 of my report. I only have one edition. 8 Q. So, you believe this -- 9 A. -- I believe this is the report that I 10 sent to Miss 'Pantages'. 11 Q. I know when you did this report you did 12 not have all the material that you have now; is that 13 correct? 14 A. That's true. 15 Q. Do you have additional opinions that are 16 not contained in your report of May 13, 1997? 17 A. Hold on for a second. No, I agree with 18 my report. 19 Q. Okay. Now, tell me how Dr. Haftkowycz 20 deviated from the accepted standards of medical care 21 in his treatment of Beth Paoloni, your opinion to a 22 probability. 23 A. In my opinion the deviations of standard 24 of care that are important in this case, and the ones 25 that are germane have to do with the evaluation of 42 1 this patient during the antepartum period in terms of 2 screening her for macrosomia as well as evaluating her 3 for hyperglycemia. Specifically, the failure to check 4 her urine for glucose during the routine antepartum 5 visits. On the 18th of January 1996 he properly 6 obtained a diabetic screen and then went and did the 7 proper evaluation. The interpretation of that on 8 1/22/96 is incorrect and below the standard of care. 9 The patient had a fasting blood sugar of 113. The 10 standard of care requires a repeating of that blood 11 sugar because if it's elevated twice the diagnosis is 12 made of overt diabetes in pregnancy. 13 Furthermore, the numbers that he used to 14 decide whether or not she had gestational diabetes 15 clearly indicate that there's a difference of opinion 16 in the community whether 180 or 190 is the number, but 17 clearly she was right at the edge for gestational 18 diabetes, which is a reactive treatment of 19 hyperglycemia, but she was over the fasting blood 20 sugar. It's a deviation in the standard of care that 21 he did not repeat an elevated fasting blood sugar. 22 So, that deviation is the central deviation. That and 23 the failure to check the urine for glucose in this 24 patient. 25 So that deviation then is important 43 1 because it would have in my opinion more likely than 2 not led to the diagnosis that Miss Paolini required 3 diet and insulin to get her fasting blood sugar down 4 and to optimize her tolerance to carbohydrates. 5 Having made that diagnosis also it's my feeling she 6 would have had repeated surveillance which would have 7 looked at the size of the baby much more critically, 8 and that would have led to the diagnosis of macrosomic 9 baby in a diabetic. Clearly in this case we have on 10 the admission note the doctor has estimated the fetal 11 weight to be 4000 grams. The literature is clear that 12 at 4000 grams in a diabetic the evidence and the risk 13 for traumatic birth injury are present. And the 14 standard of care would have required Dr. Haftkowycz to 15 have counseled the patient regarding the alternative 16 route of delivery which would have been a Ceasarean 17 section without labor. And so, those are the most 18 important standards of care. 19 The other deviation here is not really as 20 clear in terms of the literature. That is, there's a 21 note in the chart and there's discussion from the 22 patient in her deposition that there was another scan 23 to be done. And I'm referring to her testimony, Beth 24 Paoloni, where she says -- let me find it for you. On 25 Page 19 of her testimony she and Dr. Haftkowycz are 44 1 discussing whether or not she had the next ultrasound. 2 And so, between that comment and the antepartum chart 3 comments about size greater than dates and the need to 4 do an ultrasound, I deduced the failure to do the 5 ultrasound was an important part of this woman's care. 6 But I think that the main criticism that I have on the 7 care is the failure to repeat the fasting blood sugar 8 and to monitor the patient's macrosomia as an 9 outpatient. 10 Q. Let me back up then. I'm going to start 11 with the last first because I need to deal with it 12 real quickly. 13 Is it your opinion that the failure to do 14 an ultrasound at or around term is a deviation on the 15 standard of care? 16 A. I think that the -- let me try to answer 17 that. The failure to do an ultrasound in a patient 18 who weighs 300 pounds it's very hard to ascertain the 19 size of the baby. It is clear to me as a 20 practitioner, it's clear to me as a teacher of new 21 obstetricians, the literature I respect the fact 22 argues as to how and why and what. In the context of 23 a woman with diabetes it's a failure. 24 Q. Let's back up. We can agree, can we not, 25 that Dr. Haftkowycz believed that Mrs. Paoloni did not 45 1 have gestational diabetes; is that accurate? 2 A. We can agree that Dr. Haftkowycz never 3 properly tested the patient to see if she had 4 gestational diabetes. 5 Q. And let's see if we can -- let me start 6 with the conclusionary aspects. And Doctor, I'm not 7 going to stop you from giving your opinions here. But 8 for purposes of my question, can we agree that it was 9 Dr. Haftkowycz's opinion based upon what he did do 10 that she did not have gestational diabetes? 11 A. There's clearly conflicting evidence 12 here. The patient's testimony says he told her that 13 she did not have gestational diabetes. He referred 14 her to a dietitian for diabetic counseling, which 15 could be interpreted by me to think that she does have 16 gestational diabetes. 17 Q. Well, you read his deposition. He 18 thought she did not. She passed the test. As a 19 prudent physician he referred her to a dietitian. 20 That's the testimony in this case. Can we agree that 21 based upon what you have reviewed and what you know, 22 and based on the depositions, that Dr. Haftkowycz did 23 not believe this woman to have gestational diabetes at 24 term? 25 A. Yes. 46 1 Q. Can we agree that based upon that 2 knowledge, assuming he were correct, and I know you 3 disagree, just assuming that he's correct, that it is 4 not a deviation from the standard of care not to do 5 ultrasound at term? 6 A. I think that's clearly a controversial 7 claim and I would agree with that. I think that if 8 you look as a general picture for the use of 9 ultrasound that's true. My point before was that in a 10 302 pound woman it flies in the face of common sense 11 to have not done ultrasound. 12 Q. Well, now are you using the 302 pound 13 woman or are you using gestational diabetes? 14 A. No, I'm using just the habitus of the 15 patient. You said to assume that he did not think she 16 was diabetic. I am assuming he did not think she was 17 diabetic. He did know she was 302 pounds. He did 18 know that he suspected that she had a large baby. In 19 that setting although I cannot say it was a deviation 20 of the standard of care it flies in the face of common 21 sense and reason to not look for more information. 22 And the fact that I can't pin that as a standard of 23 care, I respect the question, but my opinion still is 24 that it flies in the face of reason. 25 Q. But I want to make sure I understand what 47 1 you're going to say in a courtroom. 2 A. Sure. 3 Q. You're not going to say to a reasonable 4 degree of medical probability that Dr. Haftkowycz 5 deviated from the accepted standards of medical care 6 by not doing an ultrasound at term; are you? 7 A. In a patient who was non-diabetic that he 8 was following? 9 Q. No, in this case. 10 A. In this particular case, that's true. 11 But what I'm going to say is that he missed the 12 diagnosis of gestational diabetes and so was in 13 violation of the standard of care. 14 Q. Okay. We're agreeing. So, we can agree 15 that had he made a diagnosis of gestational diabetes 16 it was then incumbent upon him to practice within the 17 standard of care to do ultrasound at term? 18 A. Yes. 19 (SHORT RECESS HELD) 20 Q. (By Mr. Walters) Is it your opinion that 21 Mr. and Mrs. Paoloni did not receive any counseling 22 regarding C section? 23 A. It's my opinion that the nurse's 24 deposition, and I think Beth's testimony says that 25 there was some discussion about it after she was 48 1 admitted to the hospital during the labor process, 2 yes. So, that's in there. 3 Q. Okay. Is it your opinion that Dr. 4 Haftkowycz didn't tell her enough about C section? 5 I'm a little unclear. I wrote down your opinions as 6 we went through all that. I did my best. And what 7 you said is 4000 grams in a diabetic requires 8 counseling in regard to C section. Can we agree that 9 if Dr. Haftkowycz believed either correctly or 10 incorrectly that she was not a diabetic that 11 counseling for a C section if it was not done was not 12 a deviation from the standard of care; can we agree on 13 that? I put a lot of negatives in that question. 14 A. If you can agree that if he thought that 15 her baby weighed 4000 grams and he was inducing her 16 for macrosomia then the discussions that the nurse and 17 the patient refer to in labor are reasonable -- 18 suggest to me that there was a reasonable discussion 19 that she would get a section if her labor was 20 abnormal. Is what that looks like to me from the 21 records. 22 Q. Okay. You made a reference in your 23 remarks about deviations from the standard of care, 24 fetal surveillance, which I am assuming means 25 ultrasound. 49 1 A. It could mean ultrasound or a fetal heart 2 rate testing. 3 Q. And are you talking about the stress 4 test -- non-stress test? 5 A. I'm talking biophysical profiles, and 6 non-stress testing, amniotic fluid volumes, or 7 whatever techniques are used. 8 Q. The first diabetes screen that was done 9 appears to be January 18th, '96, which came back at 10 174; correct? 11 A. A one hour glucose challenge done on that 12 day was reported as 174, yes, sir. 13 Q. And what is the normal ranges that you're 14 familiar with in your practice? 15 A. The normal ranges in 1996 in practice, 16 the cut off accepted is 140. 17 Q. We can agree that Dr. Haftkowycz's 18 decision to do a glucose tolerance test following the 19 result of 174 was within the standard of care; 20 correct? 21 A. Yes, sir. 22 Q. And that was the appropriate thing to do 23 with that result; is that accurate? 24 A. Yes, sir. 25 Q. We can agree that of the four values 50 1 received on the glucose tolerance test the only one 2 that was found to be abnormal was the fasting blood 3 sugar; is that accurate? 4 A. We could agree that the fasting blood 5 sugar was normal and indicative to diabetes, but we 6 could agree that there is different opinions as to 7 what constitutes an abnormal value by one hour or two 8 hours or three hours. In this particular case that's 9 important because by one set of criteria these values 10 are normal, and interestingly enough by the other 11 criteria that I brought you all three of them are 12 abnormal. 13 Q. Okay. What's the one set of criteria 14 that finds this to be abnormal? 15 A. In 1979 when the National Diabetes Data 16 Group originally did some of this work they assigned 17 those three values as successively 190, 165 and 145. 18 But the techniques for measuring sugar changed in the 19 early 1980's and when the group at Brown did the study 20 they correct the values to 180, 155 and 140, which has 21 been in use by many practitioners since the 1980's. 22 So, I would agree that her three values are between 23 those two sets of ranges. 24 Q. And I want to see what your opinion is 25 about Dr. Haftkowycz's -- and I know they have names 51 1 and I can't pronounce -- I can't think of what they 2 are, the two sets of -- evaluating sets of factors. 3 We can agree that the use by Dr. Haftkowycz of the 4 first evaluation set that you talked about that use is 5 not a deviation from the standard of care? 6 A. No. If anything, that use is within the 7 actual numbers. It shows a lack of insight in my 8 opinion. But it's within the numbers published in 9 1979, some seventeen years before this woman 10 delivered. 11 Q. And since that is not a deviation from 12 the standard of care the conclusion reached by using 13 those numbers i.e. that this patient was not a 14 gestational diabetic is also a conclusion made -- or a 15 conclusion made within the standard of care? 16 A. No, I think that's not true because the 17 classification of diabetes in pregnancy always has 18 taken into account the fasting blood sugar. There's a 19 report from the American College in 1986 in which they 20 make that conclusion. So, that even in the presence 21 of normal one hour, two hour and three hour values 22 with a fasting blood sugar of more than 105 the 23 patient requires insulin treatment. 24 Q. And this piece of literature that 25 obviously I don't know who the author is -- 52 1 A. -- Comes out of that book. 2 Q. Out of a book. I have never seen this 3 book. I'm going to be honest with you. I have seen 4 Williams on Obstetics which I assume you would be 5 familiar with. 6 A. Absolutely. 7 Q. Did you secure that as well? 8 A. Yes, I did. You know, I looked it up in 9 there, but I didn't copy it. 10 Q. I did too. I bet I know why you didn't 11 copy it. 12 A. Because the numbers in there differ? 13 Q. It doesn't reach the conclusion that you 14 reached. And that's a discussion we can have for 15 another day. But you're not representing to me that 16 this is the only literature that's out there that 17 suggests what a positive versus a negative glucose 18 tolerance test should be or the significance of a 19 fasting blood sugar glucose tolerance test? 20 A. All I'm suggesting is that in 1996, which 21 is really the time we have to be concerned about not 22 the fact that Dr. Haftkowycz trained in 1985, a 23 fasting blood sugar in excess of 105 is abnormal, 24 considered abnormal for many years by the American 25 College, and required treatment with insulin, required 53 1 repetition and then treatment with insulin. 2 In 1996 when this patient was cared for I 3 don't know of any literature that I would rely on or 4 recommend anybody rely on that has a higher number. 5 In fact, the numbers for fasting blood sugar and 6 treatment are around 95 as I tried to explain earlier. 7 So, that's what I was trying to use that literature 8 for. 9 Q. It's your opinion that the glucose 10 tolerance test done on January 22nd, 1996 is a 11 positive glucose tolerance test; is that accurate? 12 A. The test that's done is a diagnostic 13 test. This is not a screening test. It indicates 14 that the patient is at high risk to have fasting 15 hyperglycemia or overt diabetes, which is the 16 nomenclature of the 1980's when Dr. Haftkowycz was 17 trained. That's why I went back to Williams and the 18 earlier editions. Whether a patient has fasting 19 hyperglycemia or one milligram more or less of 20 reactive hyperglycemia makes no difference. They're 21 either called a Class A-1 or Class A-2 diabetic for 22 1996. And so, in this case the proper classification 23 of this woman for 1996 was that she was an A-2 24 gestational diabetic. I think the terminology you're 25 using is a little bit convoluted. The real definition 54 1 for this patient is that she needed a second blood 2 sugar, and the second blood sugar of more than 105, 3 which maybe that was on admission when it was 106, we 4 don't know, would have then made her an A-2 5 gestational diabetic. 6 Q. I'm not trying to be convoluted. I try 7 to read people that put out literature in your field. 8 And I'm a lawyer, not a doctor. So, I'm going to try 9 to be fair and present it to you as I understand it 10 and then you tell me why I'm wrong. Okay. 11 A. That's what I'm attempting to do. 12 Q. And I understand. And it just may be my 13 ignorance that's not allowing you to follow. 14 A. Right. 15 Q. My understanding of this glucose 16 tolerance test is that there are four values taken; is 17 that accurate? 18 A. The first value is not the tolerance, it 19 is a fasting blood sugar. 20 Q. But as part of the entire test -- 21 A. -- Evaluation. 22 Q. There are four numbers taken. 23 A. Right. 24 Q. One's a fasting blood sugar, the first is 25 a one hour tolerance, two hour tolerance, and a three 55 1 hour tolerance. 2 A. That's true. 3 Q. My understanding of reading the 4 literature in this area in and around 1996 is that if 5 only one value is abnormal then the test is not 6 diagnostic of gestational diabetes; is that consistent 7 with your understanding of the literature in 1996? 8 A. I understand your confusion on that. In 9 a glucose tolerance test if you look for the 10 definition of pregnancy you'll find that the 11 definition to make the diagnosis of gestational 12 diabetes is to have two abnormal values of the three 13 values that are the tolerance part in the presence of 14 a normal fasting blood sugar. That is the definition 15 of gestational diabetes, Class A-1, Class A. If a 16 patient has elevated fasting blood sugar they have 17 gestational diabetes particularly when you repeat it a 18 second time. So, the gestational diabetes you're 19 referring to is two abnormal values of the three of 20 the challenge in the presence of a normal fasting 21 blood sugar. That's the issue. 22 Q. So, you would disagree with Dr. Nocon's 23 conclusion in that regard; is that accurate? I'll 24 read to you what he says. 25 A. Okay. 56 1 Q. He says, "A glucose screen done on 2 1-18-96 was elevated to 174, Dr. Haftkowycz complied 3 with his duty to follow this finding with a three hour 4 glucose tolerance test. The test was performed on 5 1-22-96 and only the fasting level was elevated. A 6 diagnosis of gestational diabetes is made when two of 7 the glucose tolerance test findings are abnormal." 8 And you disagree with that. 9 A. That's an incomplete definition. 10 Q. You did not know until today that Dr. 11 O'Grady was a witness in this case; is that correct? 12 A. No. 13 Q. He is someone you're familiar I assume. 14 A. I was in practice with him for many 15 years. 16 Q. Okay. And Dr. Nocon is someone you are 17 familiar with as well? 18 A. Yes, sir. 19 Q. Now, I want to follow up on urine dips. 20 In your practice, Dr. Gimovsky's practice, how often 21 do you do them, at every visit? 22 A. The standard of care as I understand it 23 from having been a practicing obstetrician for more 24 than two decades is to do a dip stick of the urine to 25 look for protein, glucose, and acetone at every 57 1 prenatal visit. 2 Q. What would you expect to see in a 3 gestational diabetic assuming you're doing the urine 4 stick and assuming that a gestational diabetic mom was 5 not being treated with insulin? 6 A. I would expect to see glucose and 7 possibly acetone and ketone bodies in the urine. 8 Q. So, you would expect to see glucose 9 spilling into the urine; correct? 10 A. I believe so. 11 Q. If you were doing the urine sticks and 12 found that glucose wasn't spilling into the urine that 13 would not tell you that the patient did not have 14 gestational diabetes; is that correct? 15 A. Absolutely. 16 Q. Neither would the presence of the glucose 17 in the urine tell you that the patient had gestational 18 diabetes; is that correct? 19 A. That's true. 20 Q. It's just one piece of evidence; correct? 21 A. Yes, sir. 22 Q. Is it your opinion in this case, Doctor, 23 that the size date discrepancy that occurs in Mrs. 24 Paoloni's chart is an indicator of anything? 25 A. It's another indicator to be concerned 58 1 about the size of the baby. It's not diagnostic, but 2 it also warrants further information to find out. 3 Q. We can agree that this patient on 4 December 11th I believe was gestational age of 5 twenty-four weeks for the fetus and a fundal height of 6 29 inches; correct, Doctor? 7 A. 29 centimeters. 8 Q. Is that accurate? 9 A. That's what's written. 10 Q. The patient had an ultrasound in or 11 around that time; is that correct? 12 A. The patient had an ultrasound on 12/19. 13 Q. Okay. What does that 12/19 ultrasound 14 indicate? 15 A. The 12/19 ultrasound report indicates 16 that this baby is at the 72nd percentile for size for 17 this gestational age. 18 Q. Is that consistent with someone who is at 19 29 centimeters fundal height at twenty-four weeks 20 gestation; or does it have any correlation? 21 A. It's consistent with it. 22 Q. Let me back up. Assuming that you did an 23 ultrasound because of a fundal height of 29 24 centimeters and a gestational age of twenty-four weeks 25 would you suspect to see something on ultrasound 59 1 having done it for that reason that would cause you to 2 do any further investigation or do further treatment, 3 or make any further diagnosis? 4 A. If I understand the question what action 5 would I take based upon the standard. The reason to 6 do the scan would be to see what's causing the 7 increase in the fundal height, which could be 8 reflected by a large amniotic fluid volume, also seen 9 with diabetics more frequently, or a large fetus, even 10 earlier cases twins or whatever. And in this report 11 what we find is that this baby is indeed growing in 12 the top half of fetuses and 72nd percentile. So, the 13 baby is greater in size than 71 percent of the fetuses 14 for this gestational age. That would then lead me to 15 want to carefully follow the size again because of the 16 fundal height discrepancy and because of the fact that 17 most of the baby's growth and weight, as we were 18 discussing earlier, is going to occur after this point 19 in time. 20 Q. Was the ultrasound done on December 21 19th -- well, let me back up because I want to make 22 sure I get this right -- are ultrasounds done in and 23 around that time, twenty-four weeks gestation, do the 24 radiologists ever indicate to you LGA as a potential 25 diagnosis off an ultrasound done at that time? 60 1 A. Radiologists generally don't, but those 2 of us in maternal fetal medicine -- 3 Q. Perinatalogist. 4 A. Well, perinatalogists do. And again, you 5 use the information in a clinical setting. So, this 6 baby is between the 10th and the 90th percentile so 7 technically it is a normal size baby at this point in 8 time. However, clinically we have a mother whose 9 fundal height is much greater than we expect, who was 10 20 and 20 earlier, so we know we have an increase in 11 discrepancy in fundal height. We know we have taken a 12 look at one picture in time and we need to get some 13 more data because we know most of the growth is yet to 14 occur after twenty-five weeks. 15 Q. Except that when the ultrasound is done 16 is not based -- see, this is where I get a little 17 confused because I'm kind of a mathematician. That 18 ultrasound isn't done with the expectation that this 19 child has reached 75 percent of its expected growth in 20 a 40 term pregnancy. 21 A. No. 70 percentile means that he's 22 growing on a larger curve with a distribution like 23 this. And then we have to then decide in which one of 24 these curves the babies are growing on, and that helps 25 us to delineate the error that we talked about 61 1 earlier. 2 Q. You indicated in your report that on the 3 day of induction the fetal head was not engaged. 4 What, if any, significance does that have? 5 A. It's well known that when a woman's 6 having her first baby and it's time to go into labor 7 either spontaneously or by induction if the head is 8 not engaged in the pelvis this is another factor that 9 would lead to her being at greater risk for a C 10 section than average. 11 Q. Why? 12 A. Because in general during a first 13 pregnancy, during the last three or four weeks of 14 pregnancy the head develops within the pelvis and 15 helps to spread the pelvic bones. Now, in this 16 woman's case the head was never there in the pelvis 17 because it was because it was floating at the time. 18 It doesn't come down and go up, it either goes down 19 and stays down. So, the head was floating. So, as 20 the head continued to grow in size and the baby 21 continues to grow the pelvic bones didn't have the 22 extra advantage, the normal adaptation of being spread 23 by the head in the pelvis. So, the lack of engagement 24 of the presenting part, whether it's the head or the 25 buttocks, is important in helping the pelvis to adapt 62 1 to its role in labor and delivery. We don't see that 2 as much in a second pregnancy. That's mostly a 3 phenomenon of first pregnancies. 4 Q. We can agree that she had a normal 5 induction and normal labor curve; is that correct? 6 A. Yes, sir. 7 Q. Is the fact that the head is not engaged 8 mean anything as to what Dr. Haftkowycz should have 9 done on April 1st? 10 A. The only information available to the 11 clinician on this point is that given the fact that he 12 suspected a large baby, that's the reason for the 13 induction, and the fact that he had a physical finding 14 consistent with having too large a baby, should have 15 further alerted him to look more carefully at the size 16 when he started and to get other information that 17 could have helped him, in this case the ultrasound. 18 So, he had another chance at the time of induction to 19 further evaluate the size of the baby. 20 Q. But he was inducing this labor because he 21 suspected a large fetus. 22 A. And so he might have thought that was 23 consistent with his earlier diagnosis. My point is 24 that it's another red flag to watch out for the baby 25 not fitting through the pelvis. 63 1 Q. But in fairness assuming that flag is 2 apparent to him and he's taking action to deliver this 3 baby because he's concerned that the baby is large 4 that's appropriate; is it not? 5 A. Absolutely. And the only problem, the 6 caveat with that to be fair, is that in a non-diabetic 7 that logic holds and in a diabetic that logic doesn't 8 hold as well. 9 Q. Let me ask you this. If this baby had 10 been 4000 grams at birth would you have any criticisms 11 of Dr. Haftkowycz? 12 A. I would have the criticism that he failed 13 to make the diagnosis of gestational diabetes, and 14 once the baby was 4000 grams in a diabetic Dr. Nocon's 15 contribution to our book even points out the fact that 16 these are the babies at greatest risk for birth 17 injury. And thus, the patient was entitled to know 18 that up front and to be given a choice. I think both 19 Dr. O'Grady, Dr. Nocon and myself would agree to that. 20 So, the failure to make the diagnosis of diabetes is 21 the central point. 22 Q. Well, let's back up. How about if this 23 baby -- and this is a hypothetical obviously -- this 24 baby was born and weighed 3999 grams would you have 25 any criticisms of Dr. Haftkowycz? 64 1 A. I wouldn't have data to be able to show 2 because I would be using the data at 4000 grams. And 3 since we can only know the weight of the baby after 4 the baby is born, that's an after-the-fact diagnosis. 5 So, I'm not criticizing -- I'm trying to criticize him 6 prospectively not retrospectively. 7 Q. But it's much easier retrospectively 8 knowing the weight of the baby; correct? 9 A. Correct. But that doesn't play a role 10 here because the key point is the diabetes to be fair. 11 Q. I want to look at your last paragraph 12 because I want to try to understand what you did. You 13 take an actual birth weight, which is the actual birth 14 weight in this case of 5394 grams, and then you talk 15 about an ultrasound with an accuracy of 15 percent. 16 A. Right. 17 Q. Which I assume you then took the 15 18 percent of 5394 grams and came up with a number 19 subtracted it one way and added it the other way to 20 give the range of suspected fetal weight; correct? 21 A. Right. I had to -- the assumption for a 22 mathematician is I assume that the ultrasound to be 23 accurate. That's the only place you could start. So, 24 you say we know the weight is 5394 grams. We know 25 that our measurement of that actual weight would be 65 1 within the 15 percent light or heavy. And that's 2 where those numbers come from. 3 Q. But if you're doing it on a prospective 4 basis and you're 15 percent on the light side then you 5 would work even further backwards 15 percent; is that 6 correct? It would be fair on the other side, 15 7 percent the other way. 8 A. Let me hear that one again. 9 Q. Well, you're doing this prospectively 10 instead of retrospectively because you don't know how 11 much the baby weighs. If you do a scan that says 12 estimated fetal weight of 4500 grams you take your 15 13 percent and work one way and the other way and come up 14 with a range; correct? 15 A. Yes. That's why you can't say the 16 estimated fetal weight would have been 4500 grams or 17 6500 grams, you have to say it's the actual birth 18 weight because we don't have any reason to know that 19 the scan would have been light or heavy or accurate or 20 inaccurate. 21 Q. And my point is you can only do that in 22 retrospect. You can't do that -- 23 A. -- This is for a model. I calculated 24 this to make sure that I could justify to you or in 25 court how far off everybody was here. And so, this is 66 1 illustrative of that fact. 2 Q. It's also illustrious of how inaccurate 3 ultrasound is; is that true? 4 A. Correct. I mean, what it is -- 5 Q. It's a pretty large range. 6 A. Right. And the issue for the range for 7 court is that at a weight of over 4000 grams in a 8 diabetic or over 4500 grams in a non-diabetic, which 9 is what Dr. Haftkowycz thought he had. And over 4500 10 grams in a non-diabetic he was still required to 11 counsel that person for a C section. 12 Q. But we can agree that the literature 13 talks about 20 percent as well as it does 15 percent. 14 And can take 20 percent, he's not in that range. 15 A. Right. But we also have to note then 16 that the literature that O'Grady quotes it's a 6 17 percent, which makes the number -- 18 Q. But you didn't read O'Grady's? 19 A. No, I read O'Grady's. 20 Q. Okay. Now, you've got to back me up 21 because I asked you -- 22 A. -- O'Grady's book. 23 Q. Oh, O'Grady's book. 24 A. I didn't read O'Grady's deposition. I 25 wrote the book with him. 67 1 Q. I understand. 2 A. So, O'Grady comments and we have 3 discussed many times that the range is 6 to 10 4 percent. So yes, I agree, nobody knows the exact 5 range. That's why I went back to the experts to ask. 6 And 15 percent is the general numbers that we expect 7 candidates getting their board certification in OB-GYN 8 to give us as an answer. So, this is not my opinion 9 alone. This is the opinion of the American Board of 10 OB-GYN in a sense. So, I'm not here giving you my 11 personal opinion, I'm trying to give you the benefit 12 of what I really know about this, which is that the 13 average generalist trained in OB-GYN practicing the 14 average reasonable medicine that we hope everybody 15 does would use a number like 15 percent. You're 16 absolutely right that the weight is after birth, and 17 that clearly is a problem. And that's a problem that 18 people have continued to work on. That's why the 19 other clinical issues are important. The head is 20 unengaged, the mother weighs 300 pounds, she had an 21 elevated fasting sugar. Dr. Haftkowycz knew all those 22 things. And it's my opinion that those things should 23 have led him to the diagnosis of gestational diabetes 24 and would follow up. 25 Q. Do you have patients in your practice who 68 1 are gestational diabetics who you only refer for diet 2 control? 3 A. Occasionally. 4 Q. And how do you make that determination? 5 A. After a patient is diagnosed with 6 gestational diabetes the standard of care requires me 7 to check once or twice a week, at least once a week, 8 for fasting sugar and their response to a glucose 9 load. And so, we get a fasting sugar and then we get 10 a sample of their sugar two hours after breakfast on 11 the day we see them in the office. And so that way I 12 know the fasting and postprandial values if they stay 13 below 120 for postprandial and 105 fasting then I 14 don't have to refer them for insulin. If either of 15 those values are in excess of that then the standard 16 of practice requires that they be referred for more 17 treatment. 18 Q. Is there any way for you to -- I don't 19 know if you can do this or not, I'm just asking -- 20 assuming that Dr. Haftkowycz would have started Mrs. 21 Paoloni on insulin in January of 1996 what do you 22 expect would have happened in terms of the baby's 23 birth weight? 24 A. Unfortunately that's speculative and I 25 really don't want to speculate. But it's clear that 69 1 we try to model issues like that and O'Grady and I 2 were working with a graduate student on a PhD thesis 3 that's exactly what we were trying to do. So, what we 4 would have done for the sake of information is we 5 would have tried to get the percentile growth the baby 6 was at and see if we could modify the baby's growth to 7 a 70th percentile because a 72nd percentile growth 8 baby at term probably would have fit without injury. 9 If the baby's percentile of size would have continued 10 to increase then we would have known we had that 11 additional risk, but it would be speculative to guess 12 how much of an affect we could have had. Certainly 13 it's something worth trying to model and I understand 14 the reason for that. 15 Q. Now, you do know in her second pregnancy 16 she was treated with insulin; is that correct? 17 A. I believe I read that in her deposition. 18 Q. Do you have any interest in seeing those 19 records to see how that turned out? 20 A. Yes, I would be interested to know how 21 much her second baby weighed. 22 MR. LANCIONE: I can tell you. Her 23 second baby weighed 10 pounds 5 ounces, 4645 grams. 24 A. And she was treated with diet and 25 insulin? 70 1 Q. (By Mr. Walters) Yes. 2 MR. LANCIONE: She was delivered 3 early. 4 Q. (By Mr. Walters) She was delivered at 5 thirty-eight and a half weeks. 6 Wait, I'm sorry, that's wrong. She was 7 at thirty-eight and a half weeks. The ultrasound was 8 4645 grams estimated. 9 I want you to assume this child was taken 10 by Ceasarean section on October 16th with a birth 11 weight of 4600 grams or thereabouts, 4674 actually, 12 and that an ultrasound was done about two weeks 13 earlier, on September 30th, 1997. Do you have any 14 idea based upon that information alone and this mom 15 being treated with insulin what the ultrasound was, 16 the estimated fetal weight on ultrasound? 17 A. Assuming the mother was in good control 18 and not just that she had the treatment, assuming that 19 she had fastings of less than a -- 20 Q. Is there any weights in this? If I 21 haven't given you enough information you tell me. 22 A. I want to make sure that I understand the 23 question. Knowing that the baby weighed 4673. 24 Q. 4674. 25 A. And sixteen days earlier what did the 71 1 ultrasound estimate the weight to be? 2 Q. Right. 3 A. Knowing that the mother is a gestational 4 diabetic and that she's on insulin if indeed her 5 fasting sugar was less than 105 and her postprandial 6 was less than 120, which would the way you would 7 follow this, I would say that the baby probably at 8 that point in the pregnancy would gain somewhere in 9 the range of 350 grams a week times two and a half 10 weeks would be 700 or 800 grams less. 11 MR. LANCIONE: Exactly. 12 Q. (By Mr. Walters) Can a brachial plexus 13 injury occur in Ceasarean section? 14 A. Absolutely. 15 Q. What's the incidence of that injury? 16 A. Brachial plexus injury occurs less 17 commonly in Ceasarean section, but it still occurs. 18 As a matter fact, I reported that in a study a long 19 time ago where it still occurs, but it's less common. 20 That has to do with breech presentation, but it's 21 clear that that injury can occur even with Cesarean 22 delivery. 23 Q. What's your Cesarean section rate, 24 Doctor, in your practice? 25 A. Personally? 72 1 Q. Yes. 2 A. It's probably in the range of 18 to 20 3 percent. 4 Q. In terms of the national average do you 5 know the national average? 6 A. The national average to you mean the 7 United States of America in 1998? 8 Q. Yes. 9 A. 22.1 percent, 22.2, according to the 10 latest data. 11 Q. I know that's like a badge of honor for 12 obstetricians; isn't it? You tell me. 13 A. You know the goal seriously is to just do 14 the ones you need to do. The number is not important. 15 MR. ALLISON: You kind of drifted 16 off there. 17 A. Part of my responsibility in running a 18 large unit is to look at these numbers for Cesarean 19 section. And my comment was I don't really care what 20 the number is as long as we do the ones we need to do. 21 MR. ALLISON: Thank you. 22 Q. (By Mr. Walters) And Doctor, real 23 quickly, because I'm just about done. Is there 24 anything in your bibliography -- and obviously I'm 25 familiar with a few things -- but anything in here 73 1 that touches directly on the issues that we're talking 2 about today? In other words, have you written on this 3 particular subject, shoulder dystocia, macrosomia, 4 those types of issues? 5 A. Well, I think just what's indirectly 6 covered there. I haven't written a book on shoulder 7 dystocia. 8 Q. Okay. When you edited your book with Dr. 9 O'Grady you had a chapter about shoulder dystocia 10 which Dr. Nocon referenced; is that correct? 11 A. Yes, sir. 12 Q. Is there a reason you chose not to write 13 that chapter yourself? 14 A. No, it was just the way the work was 15 split up. 16 Q. Okay. Have you edited a textbook since 17 that time? 18 A. Have I edited a textbook since that time? 19 Q. Any book since that time, I don't mean 20 just a textbook, any books? 21 A. Yes, I have. 22 Q. And what books? 23 A. The books that we edited -- we wrote a 24 book on problem base learning for residents and 25 medical students in OB-GYN since that time. And I 74 1 have written two handbooks on residency education. 2 Q. Anything about the issues that are 3 involved in this case? 4 A. No, they're not related directly. 5 Q. And the only case that you at the present 6 time that you recall that you were defending a 7 physician or giving an expert opinion for a physician 8 in a shoulder dystocia case involves a case in my law 9 firm; is that correct? 10 A. I believe it's in your law firm. 11 Q. You don't have a recollection of any 12 other cases? 13 A. Well, I have other cases of shoulder 14 dystocia and reviews that I have done in the past year 15 that have been negative cases. That have been cases 16 I've been asked to look at the records and it's been 17 my opinion that there was no deviation in the care. 18 Q. No, I'm just trying to see if there's 19 anything recently where you testified in a shoulder -- 20 A. I haven't testified about anything in 21 that case yet in your office. If it's in your office. 22 Q. How many times have you testified in 23 court? 24 A. As an expert witness since 1983 I have 25 testified six times in court. 75 1 Q. And have you been sued for malpractice? 2 A. Yes, sir. 3 Q. On how many occasions? 4 A. Once. 5 Q. How did that turn out? 6 A. It turned out with a little settlement. 7 Q. I assume it didn't any of the issues that 8 are related here? 9 A. No. 10 Q. I assume at some point that Mr. Lancione 11 is going to provide you -- because we're still trying 12 to secure some of the records, the records from Mrs. 13 Paoloni's subsequent pregnancy. I assume if you have 14 additional opinions you'll provide those to him and he 15 can provide those to me. 16 MR. WALTERS: And I don't have 17 anything else at this time. Thank you. 18 A. Thank you. 19 CROSS-EXAMINATION 20 BY MR. ALLISON: 21 Q. Dr. Gimovsky, my name is Tom Allison and 22 I represent Fairview Hospital and its personnel in 23 this case. 24 A. Yes, sir. 25 Q. And I have just a couple of questions for 76 1 you. And to make it very simple I'm going to ask you 2 whether we have discussed here today all of the 3 opinions that you intend to render at the trial of 4 this case? 5 A. I have one further opinion that certainly 6 affects Fairview General Hospital. 7 Q. Okay. What opinion is that, Doctor? 8 A. During the delivery itself although the 9 nurse's testimony is clearly not from direct memory 10 it's charted in the nursing notes that abdominal as 11 well as superpubic pressure was applied for five 12 minutes. It's clear that the use of abdominal 13 pressure in a baby suffering from severe dystocia can 14 be materially involved in making the process that much 15 more difficult to resolve. And as it's charted here 16 would appear that -- I think this is Kathy Hugney's 17 note -- it is charted to suggest that that's what 18 occurred. I know her testimony didn't remember 19 specifically. 20 Q. Okay. What do you mean when you say the 21 testimony didn't remember specifically? Unless I 22 misheard you. 23 A. Okay. Let me pull her testimony. 24 Q. Is this Kathy Hugney's testimony? 25 A. Yes, sir. Her testimony on Page 42. 77 1 Q. If you will just give me half a second to 2 find mine here please, Doctor. 3 A. Sure. 4 Q. Okay. Her testimony on Page 42. 5 A. 42 and 43. Her comment is that Fawn who 6 was the charge nurse was applying superpubic pressure. 7 And on 43, "I saw her apply superpubic pressure." But 8 the charting says abdominal and superpubic pressure. 9 And so, I find that -- I don't know how to resolve 10 that conflict in those two points. Specifically when 11 Fawn Hoefke was asked I believe her comment was she 12 did not remember the delivery specifically. And so, I 13 don't know what the other nurse was referring to, but 14 it is charted that way and it's a conflicting piece of 15 data for me in looking at the records. 16 Q. Doctor, let me ask you this and maybe we 17 still won't have to spend very much time here. 18 Are you saying that it was a deviation of 19 the standard of nursing care if abdominal pressure was 20 applied? 21 A. If abdominal pressure was applied in the 22 midst of this delivery which was complicated by severe 23 shoulder dystocia, yes, that's a deviation from the 24 standard of nursing care. 25 Q. Now the next question, Doctor, is: 78 1 Assuming that abdominal pressure was applied would you 2 agree with me that there's no way that you could say 3 that that had any affect whatsoever on the delivery of 4 this child? 5 A. I would agree with you because I could 6 not say more likely than not given the severity of the 7 shoulder dystocia here what the effect was. That's 8 your question if I understand it. 9 Q. Yes, sir. 10 A. Yes, I agree with you. 11 Q. Now Doctor, when you wrote your report 12 that was gosh way back in May of 1997; is that 13 correct? 14 A. Yes, sir. 15 Q. And you had the records from Fairview 16 Hospital of the delivery at that time? 17 A. Yes, sir. 18 Q. Doctor, you don't mention anything in 19 your report about this application of abdominal 20 pressure or any deviation from the standard of care on 21 the nurse's part; is that correct? 22 A. Yes, sir. I overlooked it. 23 Q. What do you mean you overlooked it? 24 A. I mean my report left that out 25 inadvertently. 79 1 Q. Doctor, are you saying then that you had 2 formulated that opinion prior to the time that you 3 wrote your May 13th, 1997 report? 4 A. No, I'm giving you my opinions today. 5 Q. Okay. Well, I'm asking you when you 6 formulated that opinion? 7 A. In between the time that I initially 8 wrote this report and when I went back and read 9 through the rest of the deposition testimony, and 10 reviewed the records of this case. Sometime after 11 that time and before now. I don't know exactly when I 12 formulated that opinion. 13 Q. Doctor, there's nothing in the deposition 14 testimony that would aid you in formulating that 15 opinion; correct? 16 A. The deposition testimony only as it 17 regards Nurse Fawn, who says she does not specifically 18 remember the delivery, and when I was re-reviewing 19 that testimony is when these nursing notes -- when I 20 found the sentence that I missed in the nursing notes. 21 Q. Doctor, before you formulated that 22 opinion did you have any conversations with Miss 23 Pantages or Mr. Lancione or anyone else representing 24 the Plaintiffs in this case? 25 A. About this specific point? 80 1 Q. Yes, sir. 2 A. No. 3 Q. They never mentioned to you anything 4 about looking at the nursing care prior to the time 5 you formulated this opinion? 6 A. Prior to my report I'm sure that that 7 part of my instruction was to look at it and then I 8 inadvertently missed it. And I don't remember -- 9 Q. Doctor, I'm just trying to find out here 10 how it is that all of a sudden this just came to you 11 when you had the records prior to the time you wrote 12 your report and you just told me that you had been 13 asked to review the nursing care, and yet in your 14 comprehensive report which is three pages long you 15 didn't mention anything about the nurses. And then 16 all of a sudden after you get the depositions, which 17 have nothing to do with the application of abdominal 18 pressure all of a sudden you come up with this opinion 19 when you have talked to Mr. Lancione or Miss Pantages 20 in the interim. How is it that all of a sudden this 21 opinion came up? 22 A. I can only tell you that in the time in 23 between I prepared that report and the time I 24 re-reviewed the records before coming here today 25 that's an additional opinion that I have. 81 1 Q. Was it suggested to you by Mr. Lancione 2 or Miss Pantages that you should look further at that 3 issue with respect to the application of abdominal 4 pressure? 5 A. Not to my knowledge. 6 Q. Doctor, would you agree with me that 7 during a delivery that it is the attending physician 8 such as Dr. Haftkowycz in this case, that directs the 9 nurses and determines what maneuvers are going to be 10 done including what kind of pressure is going to be 11 applied? 12 A. Yes, I would agree with that. 13 Q. You would also agree with me, wouldn't 14 you, Doctor, that in that type of a situation during a 15 delivery that the nurses that are assisting in this 16 delivery are acting at the direction of the attending 17 physician? 18 A. I would say that's true, but I would also 19 say that the nurses as they take care of patients in 20 labor and delivery have an independent responsibility 21 to know what to do with an obstetric emergency. 22 That's why we use specially trained nurses in labor 23 and delivery. 24 MR. ALLISON: Thank you for your 25 answer. I move to strike. That was not responsive to 82 1 my question. We'll try that again. 2 Q. (By Mr. Allison) Doctor, would you agree 3 with me that during the delivery that the nurses are 4 acting under the direction of the attending physician 5 as well as under his supervision and control? 6 A. Yes. 7 Q. Thank you. Doctor, I want you to assume 8 that there was no abdominal pressure applied by any 9 nurse during the delivery of Robert Paoloni. In that 10 case is it fair to say that you have no criticisms of 11 the nurses involved in the delivery? 12 A. Yes, that's true. 13 Q. Are there any other opinions that you 14 have specifically regarding the care of the nurses or 15 any other personnel of the hospital with respect to 16 this case that you will be expressing at trial? 17 A. Not that I have at this time. 18 Q. Dr. Gimovsky, have you reviewed other 19 cases for Mr. Lancione or anyone in his firm? 20 A. I don't believe so. 21 Q. Do you know how it is that Mr. Lancione 22 got your name or Miss Pantages, or that law firm got 23 your name with respect to reviewing this case? 24 A. I think that another perinatalogist who 25 works for them must have referred them to me because I 83 1 hadn't personally ever worked for them. 2 Q. Do you know who that was? 3 A. I'm not positive, but I think it was 4 Frank 'Chervonek' at Cornell. 5 Q. And you believe he's another 6 perinatalogist that has provided expert review for Mr. 7 Lancione or his firm and he's the one that referred 8 them to you? 9 A. I think it may have been Dr. Chervonek 10 who suggested me to Miss Pantages. 11 Q. Have you discussed the opinions that you 12 have formulated in this case with anyone other than 13 Mr. Lancione, Miss Pantages, or some other attorney or 14 law firm representing the Plaintiffs? 15 A. No, sir. 16 Q. Have you reviewed cases for other 17 attorneys in the Cleveland area? 18 A. Yes, I have. 19 Q. And who might that have been? 20 A. Leon 'Flevin'. 21 Q. How many cases have you reviewed for Mr. 22 Flevin? 23 A. Three or four, a few. 24 Q. Over what period of time? 25 A. The last five years. 84 1 Q. And all of those cases were on behalf of 2 the patient, the Plaintiff bringing the lawsuit? 3 A. What are the cases about? I'm sorry, I 4 don't understand the question. 5 Q. I'm sorry. All of those cases were 6 reviews that you undertook on behalf of the Plaintiff 7 in the case? 8 A. The reviews that his firm asked me to 9 undertake were I believe reviews that were started 10 with the Plaintiff, yes. 11 Q. Did any of those cases involve issues 12 similar to this case? 13 A. Not that I can remember as I sit here 14 now. 15 Q. I'm just looking here, Doctor, so just 16 bear with me a second. 17 Dr. Gimovsky, would you agree with me 18 that if you develop any further opinions regarding 19 Fairview Hospital or its nursing personnel or other 20 personnel, or you recall any further opinions, or you 21 change your opinions in any manner, that you will let 22 Mr. Lancione know so that he can let me know so that I 23 can then determine whether I need to reconvene your 24 deposition to explore those additional or changed or 25 later recalled opinions; would you agree with that? 85 1 A. Yes, sir. I'm sorry for the 2 inconvenience of bringing it up now. 3 Q. I'm sorry, I don't understand, Doctor. 4 A. I'm sorry that I did not include my 5 comment in the initial report, but as I read through 6 the reports my opinions do sometimes change. And 7 that's why I thought to include it today. 8 Q. It wasn't as a result of any discussion 9 you had with Mr. Lancione or Miss Pantages, or anyone 10 else representing the Plaintiffs? 11 A. No, sir. 12 Q. Did you think to do a supplemental 13 report? 14 A. No, I have never had any experience doing 15 that. 16 Q. Doctor, I think I asked you a moment ago 17 if you would agree to let me know about any changed or 18 additional or later recalled opinions, and I'm not 19 sure that you said you would agree to let Mr. Lancione 20 know unless I just missed it, which is possible. 21 A. Yes, sir, I agree. 22 MR. ALLISON: Dr. Gimovsky, I don't 23 have anything further. Thank you. 24 A. Thank you. 25 REDIRECT EXAMINATION 86 1 BY MR. WALTERS: 2 Q. Doctor, I just want to make sure that can 3 get the things that I don't have. And that's copies 4 of papers where you did some the growth chart with 5 your own handwriting on the back of one of those and 6 these articles. I don't have any of that. 7 A. I'll FAX them over to Mr. Lancione. 8 Q. That's fine. 9 And Doctor, I just want to make sure, one 10 more question. Would it be your opinion here today 11 that if Bobby Paoloni had weighed 3999 grams then Dr. 12 Haftkowycz would not be a Defendant in this case; is 13 that accurate? 14 A. Assuming that Dr. Haftkowycz failed to 15 make the diagnosis of gestational diabetes and brought 16 the patient into induce because he estimated or the 17 baby did ultimately weigh 3999 grams? 18 Q. This is a hypothetical. I want you to 19 assume that everything that happened in this case 20 happened, but that the baby's birth weight instead of 21 being what it was 3999 grams; do you have any 22 criticisms of Dr. Haftkowycz? 23 A. I would have to say the criticisms for 24 the diabetes and its management and regulation. 25 Q. We can agree that many mothers who are 87 1 gestational diabetics deliver babies over 4500 grams 2 without any shoulder injury; correct? 3 A. In terms of a simple majority? 4 Q. Yes. 5 A. Yes. 6 MR. WALTERS: That's all I have. 7 RECROSS-EXAMINATION 8 BY MR. ALLISON: 9 Q. Doctor, I have just one quick follow-up 10 question here just to make sure I'm doing my job. 11 To your criticism of the nurses regarding 12 the abdominal pressure is it correct that the sole 13 basis of your opinion in that regard is based upon the 14 single nursing note in the record that was written by 15 Kathy Hugney? 16 A. Yes, sir. 17 Q. No other basis whatsoever? 18 A. No, sir, there's no other basis that I'm 19 aware of. 20 MR. ALLISON: Thank you, Doctor, 21 that's all I have. 22 MR. WALTERS: Do you want to read? 23 THE WITNESS: Yes, sure. 24 25 88 1 NOTARIAL CERTIFICATE 2 STATE OF MISSOURI ) ) 3 COUNTY OF ST. LOUIS ) 4 I, CAROLYN A. KOSTECKI, a Court Reporter and a duly commissioned Notary Public within and for 5 the State of Missouri, do hereby certify that there came before me at the offices of Grey and Ritter, 701 6 Market, St. Louis, Missouri, 7 DR. MARTIN L. GIMOVSKY 8 who was by me first duly sworn to testify to the truth and nothing but the truth of all knowledge touching 9 and concerning the matters in controversy in this cause; that the witness was thereupon carefully 10 examined under oath and said examination was reduced to writing by me; and that this deposition is a true 11 and correct record of the testimony given by the witness. 12 I further certify that I am neither 13 attorney nor counsel for nor related nor employed by any of the parties to the action in which this 14 deposition is taken; further that I am not a relative or employee of any attorney or counsel employed by the 15 parties hereto or financially interested in this action. 16 IN WITNESS WHEREOF, I have hereunto set 17 my hand and seal this 13th day of May, 1998. 18 My commission expires September 4, 2001. 19 20 ___________________________________ Notary Public 21 22 23 24 25 89 1 STATE OF ______________________________ ) 2 ) 3 COUNTY OF _____________________________ ) 4 5 I, DR. MARTIN L. GIMOVSKY, do hereby certify: 6 That I have read the foregoing deposition; 7 That I have made such changes in form and/or 8 substance to the within deposition as might be 9 necessary to render the same true and correct; 10 That having made such changes thereon, I hereby 11 subscribe my name to the deposition. 12 I declare under penalty of perjury that the 13 foregoing is true and correct. 14 Executed this ________________ day of________, 19____, 15 at __________________________________. 16 _______________________________________ 17 DR. MARTIN L. GIMOVSKY 18 19 My Commission Expires: _______________________________ 20 Notary Public: _______________________________ 21 Witness letter sent to Dr. Gimovsky 5/13/98 ________ 22 CAK/Dr. Gimovsky 4/24/98 23 Robert Paoloni,et al vs. Erast Haftkowycz, M.D., et 24 al. 25 90 1 2 Taylor * Schroeder Reporting & Video 7494 Ethel Avenue 3 St. Louis, Missouri 63117 4 Phone (314) 644-2191 * Fax (314) 644-1334 5 May 13, 1998 6 Dr. Martin L. Gimovsky St. John's Mercy Medical Center 7 615 South New Ballas Road St. Louis, Mo 63141 8 In Re: Robert Paoloni, et al, vs. Erast Haftkowycz, 9 M.D., et al. 10 Dear Dr. Gimovsky: 11 Please find enclosed a copy of your deposition taken April 24, 1998 in the above-referenced case. Also 12 enclosed is the original signature page and errata sheets. 13 Please read your copy of the transcript, indicate any 14 changes and/or corrections desired on the errata sheets, and sign the signature page before a notary 15 public. 16 Please return the errata sheets and notarized signature page to the address above to my attention 17 for filing prior to trial date. 18 Thank you for your attention to this matter. 19 Sincerely, 20 Carolyn A. Kostecki 21 Court Reporter 22 23 24 25 91