1 1 IN THE COURT OF COMMON PLEAS 2 PORTAGE COUNTY, OHIO 3 LISA GRUBB, et al., 4 Plaintiffs, JUDGE JOHN ENLOW 5 -vs- CASE NO. 97CV00153 6 ALAN L. ROSENWASSER, M.D., et al., 7 8 Defendants. 9 - - - - 10 Deposition of STEVEN M. KLEIN, M.D., taken as 11 if upon cross-examination before Elaine S. 12 FitzGerald, a Registered Professional Reporter 13 and Notary Public within and for the State of 14 Ohio, at the offices of Reminger & Reminger, The 15 113 St. Clair Building, 113 St. Clair Avenue, 16 Cleveland, Ohio, at 9:25 a.m. on Friday, August 17 6, 1999, pursuant to notice and/or stipulations 18 of counsel, on behalf of the Plaintiffs in this 19 cause. 20 21 - - - - 22 23 WARE REPORTING SERVICE 3860 WOOSTER ROAD 24 ROCKY RIVER, OHIO 44116 (216) 533-7606 FAX (440) 333-0745 25 2 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. Ellen Hobbs Hirshman, Esq. 3 Linton & Hirshman Hoyt Block, Suite 300 4 700 West St. Clair Avenue Cleveland, Ohio 44113-1230 5 (216) 781-2811 and 6 Calvin F. Hurd, Jr., Esq. Law Office of Calvin F. Hurd, Jr. 7 1750 Standard Building Cleveland, Ohio 44113 8 (216) 861-8888 9 On behalf of the Plaintiffs; 10 Stephen S. Crandall, Esq. Reminger & Reminger 11 The 113 St. Clair Building 113 St. Clair Avenue 12 Cleveland, Ohio 44114 (216) 687-1311 13 On behalf of the Defendants Dr. Grubbl 14 and Dr. Rosenwasser; 15 Stacy A. Ragon, Esq. Roetzel & Andress 16 222 South Main Street Akron, Ohio 44308 17 (330) 849-6620 18 On behalf of the Defendant Robinson Memorial Hospital. 19 20 21 22 23 24 25 3 1 2 E X H I B I T I N D E X 3 4 EXHIBIT NO. PAGE 5 Deposition Exhibit 1 13 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 4 1 STEVEN M. KLEIN, M.D., of lawful age, called 2 for examination, as provided by the Ohio Rules 3 of Civil Procedure, being by me first duly 4 sworn, as hereinafter certified, deposed and 5 said as follows: 6 EXAMINATION OF STEVEN M. KLEIN, M.D. 7 BY MR. HIRSHMAN: 8 Q. We'll forego most of the formalities other than 9 have you state your name for the record so that 10 we have it on the transcript. 11 A. Steven M., as in Michael, Klein, K-l-e-i-n. 12 Q. And you're an M.D.? 13 A. Yes. 14 Q. You have been retained as an expert to testify 15 in the case of Lisa Grubb against Doctors 16 Rosenwasser and Egdell. I'm going to be asking 17 you questions about your opinions in regard to a 18 review of various materials. 19 Let's start by having you tell me what it 20 is that you have reviewed. 21 A. I don't have my report. Can I see a copy of my 22 report? 23 Q. Sure. I've got a copy of your report right in 24 front of me. Oh, there is one. You have got 25 one in front of you, too, now? 5 1 A. Right. 2 I reviewed the office records of Dr. Egdell 3 and Rosenwasser concerning the pregnancy and 4 post partum events of Mrs. Grubb. I reviewed 5 the Robinson Memorial Hospital admission of 6 9-2-94 for Mrs. Grubb. 7 Q. Can I stop you a second? 8 A. Yes. 9 Q. There is a list on your letter on page 1 which 10 is seven items long. 11 A. Yes. 12 Q. You have reviewed all those? 13 A. That's correct. 14 Q. And I presume those are the items that you 15 reviewed at the time you wrote your report? 16 A. Yes, that's correct. 17 Q. Did you review any others? 18 A. No. 19 Q. Have you reviewed any others since then? 20 A. No. 21 Q. What if anything do you know about Lisa's care 22 and treatment at the Cleveland Clinic? 23 A. Other than she did contact Dr. Lester Ballard in 24 consultation, I know of no further care or 25 treatment that she received at the Cleveland 6 1 Clinic. 2 Q. All right. Any other records that you've 3 reviewed other than those in your letter as of 4 this point in time? 5 A. No. 6 Q. Let's start with some preliminaries with regard 7 to what types of materials you utilized to keep 8 abreast in the field. Are there certain 9 journals that you regularly read for that 10 purpose? 11 A. Yes. I read the Journal of Obstetrics and 12 Gynecology, the American Journal of Obstetrics 13 and Gynecology, the Journal of Reproductive 14 Medicine, Survey of Obstetrics and Gynecology as 15 well as the American College of OB/GYN Committee 16 Opinions and Practice Guidelines. 17 Q. How about the New England Journal of Medicine? 18 A. Yes, I do. 19 Q. And you're a member of ACOG? 20 A. Yes. Correct. 21 Q. ACOG stands for? 22 A. American College of Obstetricians and 23 Gynecologists. 24 Q. And presumably you have their committee opinions 25 and guidelines in your office for reference 7 1 purposes when you need them? 2 A. Yes, I do. 3 Q. All right. And I note that Sandra Bellin 4 appears on your letterhead. 5 A. Yes, she does. 6 Q. She's in practice with you? 7 A. That's correct. 8 Q. Is that a partnership? What is the 9 relationship? 10 A. She's a partner of mine. 11 Q. All right. So you're both employees of 12 Beachwood OB/GYN, Inc.? 13 A. That's correct. 14 Q. Have you seen her records? 15 A. Only the letter that she wrote in consultation, 16 when she saw Mrs. Grubb. 17 Q. So you have seen the letter -- 18 A. Yes. 19 Q. -- that she wrote and was transmitted to 20 Doctors Egdell and Rosenwasser? 21 A. Correct. 22 Q. So you have seen those as part of Dr. Egdell's 23 and Dr. Rosenwasser's chart? 24 A. That's correct. 25 Q. Tell me, if you would, what you believe to be 8 1 the salient facts associated with this matter. 2 A. I don't quite understand the question. 3 Q. What I want to get from you is, I want to 4 understand what you understand the facts of this 5 case to be. 6 A. Mrs. Grubb came to Doctors Rosenwasser and 7 Egdell for the delivery of a baby. The baby was 8 delivered. 9 Q. What is your understanding as to whether or not 10 Lisa had previously delivered? 11 A. She had according to the records, had had a 12 previous Cesarean section. 13 Q. And what were the indications for that previous 14 Cesarean section? 15 A. A lack of progress in labor and probable 16 choreoamnionitis. 17 Q. And the records in fact talk about the lack of 18 progress in labor as being in association with 19 cephalopelvic disproportion, is that correct? 20 A. I believe that is mentioned in the records. 21 Q. Do you remember the size of her first baby? 22 A. I do not. 23 Q. Do you recall the size of her second baby? 24 A. I do not. 25 Q. What is your understanding of the facts as it 9 1 relates to any discussions that took place 2 between Lisa on the one hand and Doctors Egdell 3 and Rosenwasser on the other hand regarding her 4 desire for a particular mode of delivery, if 5 mode of delivery makes sense to you? 6 A. May I answer the previous question concerning 7 the size of the vaginal delivery, the second 8 baby? 9 Q. Yes. 10 A. In my report on page 2, I did note that the baby 11 was 8 pounds 5 ounces and was male. I do not 12 know the size of the -- I don't remember the 13 size of the first baby. 14 Q. All right. 15 A. Now, your second question regarding discussions 16 with Doctors Egdell and Rosenwasser and 17 Mrs. Grubb? 18 Q. You want me to repeat the question? 19 A. Please repeat the question. 20 Q. Okay. What is your understanding as to whether 21 any conversations occurred between Lisa on the 22 one hand and Doctors Egdell and Rosenwasser on 23 the other hand regarding whether she wanted a 24 repeat C section or whether she was willing to 25 attempt a trial of labor? 10 1 A. The records indicate that when she was first 2 seen, she preferred to have a repeat Cesarean 3 section. Subsequent conversations regarding 4 this must have occurred, but I don't know 5 exactly where the documentation occurs. Can you 6 be more specific in -- 7 Q. You're dealing with the issue that I'm 8 addressing. The question then I guess in 9 follow-up to your answer is, you responded by 10 indicating that further conversations must have 11 occurred regarding whether delivery would be by 12 VBAC or C section. 13 A. Yes. 14 Q. Why do you conclude that further conversations 15 must have indeed occurred? 16 A. Mrs. Grubb at first had preferred a repeat 17 Cesarean section. As time went on, and I 18 believe it was in the chart August 5th, Dr. -- 19 one of the doctors had discussed with Mrs. Grubb 20 signs of labor. This to me indicated that there 21 was no appointment to plan a repeat Cesarean 22 section and that labor perhaps was going to 23 occur. 24 Prior to the admission on 9-2-94, a 25 conversation must have occurred because the 11 1 admission for 9-2-94 was for induction of labor 2 vaginally and not for a repeat Cesarean section. 3 We know from the notes of the nurses that both 4 Mrs. Grubb and her husband who was present did 5 receive prostaglandin jell in order to try and 6 induce that labor. 7 At around 12:55, 9-3-94, when in fact the 8 prostaglandin had not satisfactorily induced 9 labor, Dr. Rosenwasser, whom I believe was 10 present, must have discussed with Mrs. Grubb 11 further therapy and asked her whether she wanted 12 to go home since it hadn't worked thus far or 13 whether she would continue on with the induction 14 of labor with pitocin and artificial rupture of 15 the membranes and so she elected to do that. So 16 from these instances, I conclude that Mrs. Grubb 17 and the doctors did discuss vaginal birth versus 18 repeat Cesarean section. 19 Q. Do you see anywhere in the records other than 20 the entry of February 2nd of 1994 any 21 documentation that a further discussion of 22 C section versus VBAC occurred? 23 A. No. 24 Q. So you have concluded that a further discussion 25 must have occurred because for a patient to be 12 1 sent down that path for a trial of labor under 2 circumstances where she's previously expressed a 3 desire for a C section would require that a 4 further discussion occur, correct? 5 A. For the patient to allow herself to go on a 6 certain path would indicate to me an approval of 7 a change of mind and hence she was willing to 8 undergo an attempt at a vaginal birth after her 9 first Cesarean section. 10 Q. In other words, as you review these records, you 11 interpolate into them or you conclude from 12 reviewing them that there must have been at the 13 least a passive acceptance of a trial of labor? 14 A. I believe that the patient gave her approval for 15 the trial of labor. 16 Q. I know you believe that, and what I am asking 17 you is this: Do you see any evidence in the 18 records to establish that that approval was 19 active as opposed to passive. 20 A. Oh, yes. 21 Q. And what is that? 22 A. She signed a -- in the admission, she signed a 23 patient directive and I believe -- if we can 24 read that. I don't have it with me. 25 Q. I am looking at a document here that's called 13 1 Advance Directive. Is that what you're speaking 2 of? 3 A. That's correct. 4 Q. Okay. 5 A. And the second line said "the right to accept or 6 reject medical or surgical treatment." In this 7 instance, it was to be induced or have the labor 8 induced and to deliver vaginally and Mrs. Grubb 9 signed it. 10 Q. All right. 11 A. That to me is active approval. 12 MR. HIRSHMAN: All right. 13 Let's mark this document as Client Exhibit 1 if 14 we could, Depo Exhibit 1. 15 - - - - - 16 (Thereupon, Deposition Exhibit 1 was 17 marked for purposes of identification.) 18 - - - - - 19 Q. This advance directive or living will and 20 durable power of attorney for health care is in 21 your opinion an active acceptance of the choice 22 to endure a trial of labor? 23 A. No. I simply think that she understood that she 24 was to undergo a trial of labor, and I don't 25 know about enduring a trial of labor, but she 14 1 was going to undergo a trial of labor and she 2 signed for it. 3 Q. Exhibit 1 in your opinion constitutes 4 documentary evidence that Lisa Grubb consented 5 to a trial of labor? 6 A. Yes. 7 Q. Any other documents in this chart that allow you 8 to conclude that Lisa Grubb expressly consented 9 to a trial of labor? 10 A. Yes. After discussing with the doctors that a 11 trial of labor would be suggested because of her 12 dates and because of her inducability of her 13 cervix, she showed up at the hospital for that 14 trial of labor. 15 Q. Do you see any documentation that suggests that 16 a discussion occurred between Lisa and either 17 Dr. Egdell and Dr. Rosenwasser that the risks 18 and benefits of a trial of labor versus a VBAC 19 were explained to her and that she specifically 20 chose to undergo a trial of labor? 21 A. I don't see the documentation. 22 Q. And for that matter, Exhibit 1 doesn't provide 23 such documentation either, does it? 24 A. That's correct. 25 Q. All right. And the only documentation you have 15 1 seen from your review of this case dealing with 2 the specific issue of whether or not Lisa 3 preferred a VBAC or a trial of labor is the note 4 by Dr. Egdell on February 2, 1994? 5 A. The note by Dr. Egdell on February 2nd did 6 express the patient's wishes at that time, 7 that's true. 8 Q. All right. And the note expresses the patient's 9 wishes to undergo a repeat Cesarean section? 10 A. At that time. 11 Q. All right. What is your understanding as to 12 Lisa's testimony regarding her response -- well, 13 let me ask you this first. What do you 14 understand Dr. Egdell's response to be to Lisa's 15 statement that she wanted a repeat C section 16 when she made that statement on February 2, 17 1994? 18 A. I don't understand your question. 19 Q. Dr. Egdell's records indicate that he 20 recommended a VBAC, correct? 21 A. That's correct. 22 Q. On February 2, 1994? 23 A. That's correct. 24 Q. And Dr. Egdell's records further indicate that 25 the patient preferred to have a C section? 16 1 A. That's correct. 2 Q. What if anything do you understand to have 3 occurred after Lisa expressed her desire for a 4 C section during that visit of February 2nd? 5 A. Time passed. The pregnancy -- 6 Q. During the visit of February 2nd, are you aware 7 of any further discussion after Lisa said, "I 8 want a C section"? 9 A. I don't know that she used those words, but I 10 don't know of anything else on the records that 11 that -- on that day. 12 Q. All right. I want you to assume for a moment 13 that a further discussion occurred after Lisa 14 said, "I want a C section." Dr. Egdell said to 15 her, "We don't do repeat C sections in this 16 office. If you want to stay in our practice, 17 you're going to have to undergo a trial of 18 labor. You're going to have to undergo a 19 vaginal birth after Cesarean section. That's 20 the way we do it." Make that assumption. End 21 of story. There is no more discussion on the 22 issue. "That's how we practice medicine." Is 23 that how you practice medicine, Doctor? 24 A. That's an all-encompassing question you're 25 asking me. 17 1 Q. It's a pretty specific question. 2 A. Oh. You mean would I make such a statement? 3 Q. Would you make such a statement to your 4 patients? 5 A. Concerning a vaginal birth after a Cesarean 6 section? 7 Q. Yes. I want you to assume you've got a patient 8 who's had a previous Cesarean section, she comes 9 into you for her first visit for her second 10 pregnancy, for a second pregnancy which is going 11 to go to term having had one pregnancy go to 12 term before, and you recommend a vaginal birth; 13 she tells you, "I don't want a vaginal birth. I 14 want a C section." Would you in your practice 15 tell that patient, "We don't do C sections in 16 this office. If you want to stay with us, 17 you're going to have to undergo a vaginal birth 18 or at least a trial of labor"? Would you do 19 that in your office? 20 A. No. 21 Q. And why is that? 22 A. I want to embark upon a dialogue with my patient 23 and attempt to convince her of my strong 24 feelings and would do that, but I wouldn't be 25 dictatorial on that, on this particular issue. 18 1 Q. That's because you understand it as being the 2 right of a woman under these circumstances 3 having had a previous low transfer Cesarean 4 section to make up her own mind as to which 5 route of delivery she wants for her subsequent 6 delivery? 7 A. No. I disagree with that statement. 8 Q. You disagree with the statement. Well, tell me 9 why it is you disagree with that statement. 10 A. Because I think decisions, especially as they 11 pertain to surgery or medical therapy for that 12 matter, are decisions reached with the input of 13 both the physician who does the treating and the 14 patient on whom the treatment is to occur, not 15 the patient's so autonomous as to make a medical 16 or obstetrical judgment on her own. 17 Q. But to foreclose that dialogue by making a 18 dictatorial statement that we do not do repeat C 19 sections is not the way that you would practice 20 medicine, is it? 21 A. Well, that's correct. If, however, I was so 22 strong in that opinion, I would ask the patient 23 to go elsewhere, but I don't do that. 24 Q. And you wouldn't be that strong in your 25 opinion? You'd enter into a dialogue with your 19 1 patient, and when you have a patient who 2 expresses her firmly stated wish to undergo a 3 repeat Cesarean section, you respect those 4 wishes, correct? 5 A. If the opinion or if the wishes of the patient 6 are made for the correct reasons, I respect 7 those wishes, always respect the patient's 8 wishes but may not agree with the patient, and 9 if I don't, then I would ask her to seek the 10 services of another physician. 11 Q. You have done repeat Cesarean sections on 12 patients who don't have a separate medical 13 indication for a Cesarean section, have you not? 14 A. I can't think of any off the top of my head. 15 I'm sure I have, but they are not very 16 frequently done. 17 Q. Would you agree that the actions or policies of 18 a physician that coerce a prior Cesarean section 19 patient to undergo a trial of labor interfere 20 with a patient's autonomy and undermine informed 21 consent? 22 A. I agree that coercion is improper. 23 Q. And there were ACOG standards that were in 24 existence in 1994 that specifically note that 25 coercion of a patient into accepting a VBAC when 20 1 she does not want one is improper, were there 2 not? 3 A. Yes. 4 Q. And you would agree that the standard of care in 5 1994 required that Lisa Grubb be given a 6 Cesarean section if she did indeed so choose? 7 A. No. 8 Q. You disagree? 9 A. Yes. 10 Q. And why? 11 A. If after she was informed of the pros and cons 12 of VBAC versus repeat Cesarean section and then 13 chose on that basis to have a Cesarean, then I 14 agree with you. 15 Q. In other words, a doctor has an obligation to 16 discuss with the patient his preferences and his 17 recommendations and why he has them? 18 A. Correct. 19 Q. All right. Having done so, if the patient 20 chooses a Cesarean section, she's entitled to 21 have it? 22 A. Correct. 23 Q. So somewhere along the line between giving 24 advice and coercion, one crosses a line, 25 correct? 21 1 A. One crosses a line I guess between urging and 2 coercion. It can be crossed, yes. 3 Q. When is it that you typically discuss this issue 4 within the course of your prenatal care of your 5 patients? 6 MR. CRANDALL: You're talking 7 about VBAC versus C section issue? 8 MR. HIRSHMAN: Correct. 9 A. I have no specific timeframe. Probably early on 10 so that I can elicit from the patient her views 11 which might give me time then to do some 12 teaching and express my opinions and change her 13 mind if she -- if I can possibly get her to 14 change her mind and feel comfortable doing so. 15 Q. You're aware that Dr. Egdell's a defendant in 16 this case? 17 A. Yes. 18 Q. Do you know Dr. Egdell? 19 A. No, sir. 20 Q. You're aware that Dr. Rosenwasser is a defendant 21 in this case? 22 A. Yes. 23 Q. Do you know Dr. Rosenwasser? 24 A. No, I do not. 25 Q. You're aware that Robinson Memorial Hospital is 22 1 a defendant in this case? Or maybe you're not? 2 A. I'm not aware of that. 3 Q. Well, they're a defendant in the case, at least 4 at the present time they're a defendant in this 5 case. Do you have any criticism of Robinson 6 Memorial Hospital? 7 A. No. 8 Q. All right. Do you have any criticism of either 9 Lisa or Donald Grubb as it relates to the injury 10 that she sustained? In other words, do you have 11 an opinion that it was due to acts or omissions 12 of Lisa or Donald themselves that she's 13 sustained the injuries that she's sustained? 14 A. That injury is what specifically? 15 Q. Let's ask you that question. Do you have an 16 understanding as to an injury that she had 17 sustained -- 18 A. From the -- 19 Q. -- from your review of the records? 20 A. -- the vaginal birth? 21 Q. Correct. 22 A. She sustained a scar I believe in the repairing 23 or after the repair of the laceration around the 24 vagina and peritoneal area. 25 Q. She sustained during the vaginal delivery a 23 1 third degree tear or laceration, correct? 2 A. Yes. 3 Q. Which means what when you talk about third 4 degree tear? That entails what anatomically? 5 A. Skin, subcutaneous tissue, fascia and the 6 external rectal sphincter. 7 Q. But not the mucosa? 8 A. That's correct. 9 Q. So she's sustained a tear by virtue of the 10 pressures of the passage of the baby through the 11 vagina and the birth canal, correct? 12 A. Yes. 13 Q. And the injury she sustained because of that 14 vaginal delivery was a tear of the vagina, a 15 tear of the perineum, which is the tissue 16 between the vagina and the rectum, and a tear of 17 the rectal muscles, correct? 18 A. That's correct. 19 Q. And had she not had a vaginal birth, that injury 20 would not have occurred, correct? 21 A. That's correct. 22 Q. And you can state that to a reasonable medical 23 probability? 24 A. That's correct. It, however, is my assumption 25 that the injury is the scar that has left her 24 1 with pain as lacerations do happen in the course 2 of vaginal deliveries and aren't particular to 3 Lisa Grubb or to anyone. 4 Q. Had she not had a vaginal delivery, she would 5 have not sustained the scar, correct? 6 A. That's correct. 7 Q. And you can state that to a reasonable medical 8 probability? 9 A. Yes. 10 Q. Had she not had a vaginal delivery, she would 11 not have sustained the dyspareunia caused by the 12 scar, correct? 13 A. If she is having dyspareunia, she would not have 14 sustained that because of the scar, that's 15 correct. 16 Q. And you can state that to a reasonable medical 17 probability? 18 A. Yes. 19 Q. You state that somewhat cautiously in that you 20 predicated her condition with the word if. Are 21 you suggesting that she does not have 22 dyspareunia? 23 A. Dyspareunia is purely a subjective response, not 24 an objective visual or it can't be ascertained. 25 It can only be ascertained subjectively by 25 1 asking the person herself whether or not she has 2 painful intercourse. 3 Q. Right. Are you suggesting that Lisa's a liar or 4 a malingerer? 5 A. I'm not suggesting anything. 6 Q. All right. She certainly has objective evidence 7 of a scar which was observed by your own 8 partner? 9 A. That's correct. 10 Q. And your partner in her letter to Doctors Egdell 11 and Rosenwasser doesn't raise the possibility of 12 her faking this, does she? 13 A. I'm not raising that either. 14 Q. I don't know if I ever got a response to the 15 initial question I asked regarding the 16 contributory negligence of Lisa or Donald. Do 17 you believe any actions or inactions on Lisa's 18 part or Donald's part have caused her to sustain 19 the injury that she's sustained? 20 A. No. 21 Q. In addition to having sustained pain, is it your 22 understanding that Lisa has indicated that by 23 virtue of the pain, that she is unable to have 24 intercourse? 25 A. That's what she testified. 26 1 Q. Do you have any reason to doubt her as it 2 relates to that assertion by Lisa and her 3 husband? 4 A. Well, no, I have no reason to doubt, except that 5 in the post partum notes of Egdell and 6 Rosenwasser, they mention dyspareunia which is 7 pain on intercourse. There seems to be a little 8 bit of unclearness if you will. Painful 9 intercourse means that intercourse was 10 accomplished, albeit painfully. Inability to 11 have intercourse, there can't be dyspareunia 12 because there can't be intercourse. So it might 13 be a moot point. I just bring that up. 14 Q. So what you're suggesting is that if you look at 15 Dr. Egdell's and Dr. Rosenwasser's early post 16 partum notes, one could conclude that she was 17 having intercourse but it's painful? 18 A. Yes. 19 Q. And by virtue of those notes, we could come to 20 at least one of two conclusions I presume? One 21 is that she indeed was having intercourse and it 22 was painful, the other conclusion would be that 23 she was describing an inability to have 24 intercourse because of the pain which was not 25 effectively communicated or understood, correct? 27 1 A. Correct. 2 Q. And I take it you're not in the position to say 3 which one of those two circumstances happened? 4 A. That's correct. 5 Q. You would agree, however, that part of a 6 doctor's job is to listen carefully to his 7 patients' complaints and concerns and desires? 8 A. Yes. 9 Q. And that to the extent that a doctor does not 10 listen to his patients' complaints, concerns and 11 desires, he has failed in his job as a 12 physician? 13 A. No. He simply has failed to listen to the 14 patient's complaints and desires in that 15 particular instance. 16 Q. I guess what I'm getting at is this: It's 17 important and you consider it an important part 18 of your practice to listen to your patients? 19 A. Yes. 20 Q. As I read your letter, do I understand you to be 21 criticizing Lisa for not undergoing surgery to 22 correct this problem more quickly? 23 A. No. 24 Q. You're unaware that Dr. Ballard performed 25 surgery upon her? 28 1 A. Mr. Crandall told me that this morning. I was 2 unaware of that at the time I wrote the letter, 3 my report. 4 Q. And what is your understanding as to the success 5 or lack of success of that surgery? 6 A. I understand that it was not successful. 7 Q. So Lisa has been to the Cleveland Clinic where 8 she's undergone surgery in order to correct this 9 problem. The surgery has failed. It's your 10 understanding she's also prior to the surgery 11 made attempts at dilatation? Were you aware of 12 that? 13 A. That was suggested to her, that's correct. 14 Q. And attempts were made to do that, correct? 15 A. I don't disbelieve that. 16 Q. And they were also unsuccessful, correct? 17 A. Presumably. 18 Q. Presumably because you wouldn't go to surgery if 19 dilatation had worked? 20 A. Correct. 21 Q. Given the circumstances that now exist, would 22 you agree that Lisa is suffering from a 23 permanent problem? 24 A. No. 25 Q. So you believe that more can be done for Lisa? 29 1 A. I don't know. 2 Q. So you don't have an opinion one way or the 3 other as to whether she is suffering from a 4 permanent injury at this point? 5 A. That's correct. 6 Q. Now, Dr. Bellin wrote a letter that we've made 7 reference to. All right. Let's see if we can 8 find my copy of Dr. Bellin's letter. 9 Dr. Bellin wrote a letter to 10 Dr. Rosenwasser dated November 6, 1996, correct? 11 A. Correct. 12 Q. In that letter she indicates that she complains 13 of severe dyspareunia after the birth of her 14 last child and has been totally unable to have 15 intercourse secondary to the pain, correct? 16 A. Yes. 17 Q. In addition, she recommends artificial 18 insemination and a revision of the scar 19 immediately after the birth of the next child. 20 Do you see that down at the bottom of the 21 letter? 22 A. Yes, that is a further recommendation. 23 Q. Let me ask you this: What is your understanding 24 as to the benefits associated with attempting to 25 repair a scar such as this in association with 30 1 another pregnancy and delivery? 2 A. Well, my answer will be hypothetical because 3 I've never examined Lisa. I don't understand 4 not having seen the scar or having examined her 5 the extent to which there is scarring; however, 6 in an attempt to answer your question, with 7 another vaginal delivery, the perineum being 8 distended and thinned out just makes it easier 9 to excise the scar tissue and to do the repair, 10 but the scar can be removed and the repair can 11 be accomplished without there being a subsequent 12 pregnancy. And I don't believe that Dr. Bellin 13 was saying that the only way to successfully 14 potentially correct the situation for Mrs. Grubb 15 would be that she would have to conceive again. 16 Q. Do you have an understanding as to the relative 17 likelihood of success associated with on the one 18 hand doing this without a pregnancy and on the 19 other hand doing it with a pregnancy? 20 A. No, I do not. 21 Q. All right. Is it your understanding that the 22 likelihood of success is greater if done in 23 association with a pregnancy and delivery? 24 A. No. I just think that it's easier to do 25 technically. 31 1 Q. All right. So given that Lisa has had an 2 attempted surgery which has failed, you would 3 agree that there is no basis for believing that 4 another surgery in conjunction with child birth 5 would be anymore successful? 6 A. I can't -- I don't have an opinion. 7 Q. Do you keep statistics of your C section rates? 8 A. Personally I do not. 9 Q. So you do not know what your C section rate is 10 as we sit here in 1999? 11 A. Correct, I do not. 12 Q. And you do not know what your C section rate was 13 in 1994? 14 A. I do not. 15 Q. And if I hear you correctly, what you're telling 16 me is that you don't focus on that issue, you 17 simply treat your patients in the best way you 18 know how? 19 A. That's correct. 20 Q. And whatever your rate is your rate, but that's 21 not your focus? 22 A. That's correct. 23 Q. Do you know what Dr. Rosenwasser's rates were in 24 1994? 25 A. I do not know. 32 1 Q. How about Dr. Egdell? 2 A. I do not know. 3 Q. How much attention did they give to their 4 C section rates? 5 A. I do not know. 6 Q. Tell me if you would what pressures are placed 7 on you as an obstetrician to reduce the 8 C section rate that you have, if any? If any. 9 And let's place this all in 1994 terms, okay, 10 just so that we are dealing with the time in 11 question here. It may be the same answer, it 12 may be a different answer, but let's talk about 13 1994. 14 Practicing at Hillcrest, I think you were 15 at Mt. Sinai as well -- 16 A. Correct. 17 Q. -- University Hospital -- 18 A. Correct. 19 Q. -- given your practice at those institutions, 20 what pressures, if any, were exerted on you by 21 the hospital or by insurance companies, HMOs or 22 any other provider of compensation to perform 23 VBACs rather than C sections? 24 A. I may have been naive in 1994, but I know that 25 the American College through several studies 33 1 that had been published to that point 2 demonstrating the safety of VBAC versus a repeat 3 Cesarean section suggested that we as practicing 4 obstetricians entertain perhaps a change of 5 thought in how we practice and give more 6 credence to doing an attempt at a vaginal birth 7 rather than just opt to do an immediate repeat 8 Cesarean section. 9 From that, it was my assumption that 10 insurance companies picked up on that, thought 11 perhaps that it's much more expensive to do a 12 surgical procedure such as a C section, and 13 suggested also that perhaps physicians ought to 14 go along with the American College of OB/GYNs' 15 suggestion to try an attempt at vaginal births, 16 but I -- and this is where the naivete comes 17 in. I was unaware of any pressure per se at 18 that time or even now on myself. I can't speak 19 for other people in other communities. 20 Q. So you did not feel in 1994, nor do you feel 21 today, pressure to perform a VBAC rather than a 22 C section on any particular patient? 23 A. No. I simply feel that through my education 24 subsequent to my residency training and my first 25 years in practice, that indeed I have changed 34 1 the way I practice because of the literature, 2 because of my professional college, but you're 3 correct, I do not feel myself any financial 4 pressures to push a patient towards a VBAC 5 rather than a C section. 6 Q. Were you required to respond to inquiries in 7 1994 or earlier regarding your C section rate 8 and your VBAC rate which pertained either to you 9 or to the hospitals in which you practiced by 10 insurance companies or third-party payers? 11 A. I don't remember, Mr. Hirshman. I really don't. 12 Q. So it's fair to say that you personally didn't 13 feel a pressure being exerted upon you by such 14 third-party payer? 15 A. That's correct. 16 Q. And I assume you would agree that if a 17 third-party payer were to exert pressure on you 18 to reduce your C section rate and increase your 19 VBAC rate, it would be your obligation to 20 protect your patients from those pressures once 21 they have made a decision to undergo a repeat 22 C section? 23 A. Yes. It's my policy to do no harm to my 24 patients. 25 Q. What's an episiotomy? 35 1 A. A terrible thing. 2 Q. Do you do them? 3 A. Yes. 4 Q. What is an episiotomy? 5 A. It's an incision made in the lower aspect of the 6 vaginal outlet to allow the fetus to come out, 7 hopefully avoiding any extensions or tears, or 8 extensions. I try to avoid them if I can, if I 9 get an adequate amount of pliability, but rather 10 than have a jagged type of laceration to repair, 11 I would prefer to do an episiotomy and it 12 usually is more uniform and more easy to repair. 13 Q. And when do you do them, in what kinds of 14 situations? 15 A. When the head is crowing. 16 Q. You do it in all cases where the head is 17 crowning? 18 A. No. 19 Q. You do it when the head is crowning and you have 20 reason to believe that there is a possibility 21 for a tear? 22 A. Correct. 23 Q. And one reason that you might do it is if you 24 have a baby that's large in relationship to the 25 pelvis of the mother? 36 1 A. Well, I wouldn't know that until the baby came 2 out. I could estimate perhaps, but I wouldn't 3 necessarily do the episiotomy if I thought the 4 baby was large. I would simply do it if the 5 baby's head seems to be -- if this is a vertex 6 delivery versus a breach, I would simply do it 7 to try and protect, as I say again, a jagged 8 outlet problem or to help the patient deliver, 9 have the baby come out a little sooner perhaps 10 if the soft tissues are holding the baby's head 11 back. 12 Q. Are episiotomies more likely to occur with large 13 babies as opposed to small babies? 14 A. Yes. 15 Q. And was an episiotomy done in this case? 16 A. Not to my -- I don't believe it was. 17 Q. Had an episiotomy been done, the likelihood is 18 that a third degree tear could have been 19 avoided? 20 A. That's not true. 21 Q. In other words, an episiotomy in your opinion 22 would not have prevented this tear in this case? 23 A. I don't know that. 24 Q. Well, let's put it this way. Episiotomies are 25 done to avoid the type of outcome that occurred 37 1 in this case? 2 A. No, they're not. 3 Q. Why are they done? 4 A. They're done to allow the baby's head to be 5 delivered perhaps somewhat sooner and to allow 6 an extension if it's going to occur to occur 7 more uniformly so that it can be repaired with 8 ease, but episiotomies do not prevent third 9 degree or fourth degree lacerations or 10 extensions. 11 Q. Well, an episiotomy if you were to do one could 12 be done in a number of different directions? 13 A. Correct. 14 Q. You can do one going back towards the perineum 15 or one can do them diagonally? 16 A. That's correct. 17 Q. And if one were to choose a diagonal episiotomy, 18 the likelihood is that one could avoid this type 19 of a tear? 20 A. It decreases the likelihood of a third or a 21 fourth degree laceration, that's true. 22 Q. And an episiotomy provides, as you've already 23 indicated, a surgical parting of the tissues or 24 division of the tissues which lends itself to 25 more effective healing, correct? 38 1 A. No. Ease of repair, not necessarily more 2 effective healing. 3 Q. And you would agree that the more easily a 4 laceration is repaired, the greater the 5 likelihood is that it's not going to form 6 excessive scar tissue? 7 A. Not true at all. Scar tissue can form under the 8 best of circumstances, even if a plastic surgeon 9 were repairing the episiotomy. 10 Q. You're saying there is no association whatsoever 11 between the jaggedness of a tear and the 12 likelihood of effective healing? 13 A. That's correct. 14 Q. None whatsoever? 15 A. None. 16 Q. What is your understanding as to why an 17 episiotomy was not done in this case? 18 A. I don't have an understanding. 19 Q. You indicated previously that you do not know 20 how large Lisa's first baby was when born, 21 correct? 22 A. Correct. 23 Q. I want you to assume that that baby was 6 pounds 24 12 ounces. Okay? 25 A. Okay. 39 1 Q. And that the baby was delivered by C section due 2 to cephalopelvic disproportion. 3 A. I'm assuming that? 4 Q. Right. I'm asking you to assume that. 5 A. Okay. 6 Q. Is that an inaccurate assumption to make? 7 A. Yes. 8 Q. Tell me why. 9 A. Because it was my understanding that -- would 10 you repeat your question? 11 Q. Tell me why. 12 A. Because I lost my train of thought. 13 MR. HIRSHMAN: Let's read back 14 the last three questions, maybe four. 15 (The record was read as follows: 16 "Question: I want you to assume that 17 that baby was 6 pounds 12 ounces. Okay? 18 "Answer: Okay. 19 "Question: And that the baby was 20 delivered by C section due to cephalopelvic 21 disproportion. 22 "Answer: I'm assuming that? 23 "Question: Right. I'm asking you to 24 assume that. 25 "Answer: Okay. 40 1 "Question: Is that an inaccurate 2 assumption to make? 3 "Answer: Yes. 4 "Question: Tell me why.) 5 THE WITNESS: I retract that. 6 I think that the obstetrician who delivered her 7 first baby might have thought that he was 8 dealing with cephalopelvic disproportion. He 9 was also dealing with a fever at that time from 10 what I understand. 11 Q. That's what the records would reflect. 12 Now, what is your understanding as to the 13 information available to Doctors Egdell and 14 Rosenwasser at the time of delivery regarding 15 what they could expect in terms of the baby's 16 size at birth for the second delivery which took 17 place on September 3, 1994? 18 A. I don't recollect if a recent ultrasound was 19 done or if it reflected an estimated fetal 20 weight. I don't remember. 21 Q. Would that be an important thing for somebody to 22 be concerned about when delivering a woman's 23 second baby when the first baby had been 24 delivered by C section for reasons that included 25 cephalopelvic disproportion? 41 1 A. No. 2 Q. It would not? 3 A. No. 4 Q. You wouldn't be concerned as to whether or not 5 the size of the second baby was as big or bigger 6 than the size of the first baby? 7 A. If that were going to present an obstetrical 8 problem, it would present the obstetrical 9 problem during the labor process and I would act 10 on it if it needed to be acted on, but I would 11 not take that into consideration prior to the 12 attempt at vaginal birth. 13 Q. It certainly could present itself as a reason 14 for yet another C section? 15 A. Yes. 16 Q. And in your review of these records as you've 17 already indicated, you were unaware of the fact 18 that a biophysical profile was done? 19 A. I just didn't remember. 20 Q. All right. Now, do you know what the size of 21 the baby was by a projection? Do you know what 22 the estimated size of the baby was on the 23 biophysical profile that was done? 24 A. I do not. I don't remember. 25 Q. Do you know why a vacuum extraction was done in 42 1 this case? 2 A. To help Lisa get the baby out. 3 Q. Because the baby was having difficulty getting 4 out? 5 A. Or Lisa couldn't push satisfactorily to get the 6 baby out. It just expedited delivery. 7 Q. You have indicated in your report that there was 8 a protracted second stage of labor. 9 A. Yes. 10 Q. What is second stage of labor? 11 A. Where the patient reaches complete dilatation of 12 the cervix, from that point until the delivery 13 of the baby is the second stage of labor. 14 Q. And that stage of labor in this case went on for 15 how long? 16 A. Four hours I believe. 17 Q. Which is a long time once you've reached 10 18 centimeters in dilatation, correct? 19 A. Yes. 20 Q. What would be a typical period of time for a 21 second stage of labor? 22 A. It varies from whether this is a first baby or 23 second baby. It can vary from two minutes to 24 two hours to three hours and in some instances 25 four hours. I don't know that there is a 43 1 typical period of time. 2 Q. So we'll just leave it at that. 3 You have characterized it as being a 4 prolonged second stage? 5 A. Somewhat prolonged second stage, yes. 6 Q. Meaning that that baby was not coming quickly or 7 easily? 8 A. It wasn't coming quickly. 9 Q. Vacuum extraction has certain risks associated 10 with it, does it not? 11 A. Yes. 12 Q. And what are those? 13 A. Hematomas of the scalp. 14 Q. Of the baby? 15 A. Yes. 16 Q. In other words, traumatic damage to the baby's 17 head? 18 A. Yes. 19 Q. Does it have any risks to the mother associated 20 with it? 21 A. Not to my knowledge. 22 Q. All right. Do you know why a vacuum extraction 23 was elected by Dr. Rosenwasser in this case? 24 A. To help the baby out. To expedite the 25 completion of the second stage of labor. 44 1 Q. You saw nothing in the records to indicate that 2 there was fetal distress requiring that that be 3 done? 4 A. That's correct. 5 Q. It was done simply to expedite the delivery? 6 A. That's my belief. 7 Q. All right. And the delivery was prolonged or 8 the second stage was prolonged for what reason, 9 if you know? 10 A. I don't know. 11 Q. What are the possibilities? 12 A. Inadequate contraction activity on the part of 13 the uterus, choreoamnionitis, electrolyte 14 imbalance, size of the fetus, size of the 15 maternal pelvis. That's all I can think of 16 right now. 17 Q. How about inadequate assistance from the mother 18 in terms of ability to push? 19 A. Yes. That would go along with the contraction 20 activity, but both of those, yes. 21 Q. Do you give epidurals to mothers as an 22 anesthetic during child birth? 23 A. I do, yes. 24 Q. During vaginal child birth? 25 A. Yes. 45 1 Q. During the second stage of vaginal child birth? 2 A. The epidural has usually been placed prior to 3 the second stage, yes. 4 Q. In other words, the catheter has been placed 5 prior to the second stage? 6 A. If a catheter is to be used. Sometimes it can 7 be a single shot epidural. 8 Q. So you on a regular basis will give epidural 9 anesthesia during the second stage of labor? 10 A. The patient will usually have the epidural in 11 place by the time the second stage of labor 12 occurs. 13 Q. Will you administer the epidural anesthetic as a 14 rule during the second stage of labor? 15 A. If to that point she does not have an epidural. 16 Q. I guess this is what I'm asking you: Do you see 17 any potential negative effects associated with 18 giving an epidural anesthetic during the second 19 stage of labor in a patient who is having 20 difficulty in progressing past the second stage? 21 A. If she is not pushing effectively, it could be 22 due to an excessive dose of epidural medication 23 in which case one might want a little bit of 24 that medication to wear off so that the patient 25 would feel more like pushing. That might be a 46 1 possibility. But I don't think that there is 2 anything wrong with giving an epidural or having 3 an epidural in the second stage of labor. 4 Q. That was the question. 5 I notice as I look through 6 Dr. Rosenwasser's and Dr. Egdell's records that 7 subsequent to the birth of September 3, 1994, 8 Lisa was placed on birth control pills. Are you 9 aware of that? 10 A. Yes. 11 Q. Now, just so that there is no ambiguity here and 12 no misunderstanding, she was placed on birth 13 control pills because of her irregular menses, 14 was she not? 15 A. I believe that's correct. 16 Q. And that's commonly done? 17 A. Yes. 18 Q. That doesn't imply in any fashion that she was 19 having intercourse, does it? 20 A. No. 21 Q. Tell me a little bit about your training and 22 experience so that we are all aware of what it 23 is. You went to medical school where? 24 A. At Ohio State University. 25 Q. And you graduated when? 47 1 A. 1969. 2 Q. And then went directly into -- 3 A. 30 years. 4 Q. You don't look it. 5 A. I did a medical internship from 1969 to 1970 at 6 Ohio State and then I went to the University of 7 Pennsylvania and did a residency in obstetrics 8 from 1970 through 1974. I returned to -- I came 9 to Cleveland to begin general practice from 1974 10 to the present. 11 Q. And you have been in an obstetrical/ 12 gynecological practice since 1974? 13 A. That's correct. 14 Q. And you spend greater than 50 percent of your 15 professional time in the active practice of 16 medicine? 17 A. That's correct. 18 Q. And you're licensed in the State of Ohio? 19 A. Correct. 20 Q. And where else? 21 A. That's it. 22 MR. HIRSHMAN: Let me take a 23 moment. I think we're done. Let me just 24 consult briefly and see if there are any other 25 questions that anybody else might have. 48 1 (Discussion had off the record.) 2 MR. HIRSHMAN: We have nothing 3 further. 4 MR. CRANDALL: Doctor, would 5 you like to read this because we have time or 6 would you like to waive signature? 7 THE WITNESS: What do you 8 recommend? 9 MR. CRANDALL: Whatever you 10 like. 11 THE WITNESS: I'll read it. 12 MR. CRANDALL: You want to 13 read it? 14 THE WITNESS: Yes. 15 MR. CRANDALL: Sure. 16 Could we have a waiver on the seven 17 days for Dr. Klein? 18 MR. HIRSHMAN: Yes. 19 - - - - - 20 (Deposition concluded at 10:40 p.m.) 21 - - - - - 22 23 24 _________________________ Steven M. Klein, M.D. 25 49 1 2 C E R T I F I C A T E 3 The State of Ohio, ) SS: 4 County of Cuyahoga.) 5 6 I, Elaine S. FitzGerald, a Notary Public within and for the State of Ohio, do hereby 7 certify that the within named witness, STEVEN M. KLEIN, M.D., was by me first duly sworn to 8 testify the truth, the whole truth, and nothing but the truth in the cause aforesaid; that the 9 testimony then given was reduced by me to stenotypy in the presence of said witness, 10 subsequently transcribed into typewriting under my direction, and that the foregoing is a true 11 and correct transcript of the testimony so given as aforesaid. 12 I do further certify that this deposition was 13 taken at the time and place as specified in the foregoing caption, and that I am not a relative, 14 counsel or attorney of either party or otherwise interested in the outcome of this action. 15 IN WITNESS WHEREOF, I have hereunto set my 16 hand and affixed my seal of office at Cleveland, Ohio, this 13th day of August, A.D. 1999. 17 18 __________________________________________________ 19 Elaine S. FitzGerald, Ware Reporting Service 3860 Wooster Road, Rocky River, Ohio 44116 20 My commission expires July 13, 2004 21 22 23 24 25