0001 01 THE COURT OF COMMON PLEAS OF CUYAHOGA COUNTY, OHIO 02 CIVIL DIVISION 03 - - - 04 Robert Paoloni, a minor, : 04 et al., : 05 : 05 Plaintiffs, : 06 : 06 vs. : Case No. 327020 07 : 07 Erast J. Haftkowycz, M.D., : 08 et al., : 08 : 09 Defendants. : 09 10 - - - 10 11 DEPOSITION 11 12 of Philip T. Nowicki, M.D., a witness herein, called by 13 the Plaintiffs under the applicable Rules of Civil 14 Procedure, taken before me, Iris I. Munsell, a Notary 15 Public in and for the State of Ohio, at the offices of 16 Philip T. Nowicki, M.D., Children's Hospital, Wexner 17 Institute, 700 Children's Drive, Columbus, Ohio, on 18 Tuesday, July 21, 1998, at 1:00 p.m. 19 - - - 20 21 Armstrong & Okey, Inc. 21 185 South Fifth Street 22 Suite 101 22 Columbus, Ohio 43215 23 (614) 224-9481 - (800) 223-9481 23 Fax - (614) 224-5724 24 24 - - - 25 25 0002 01 APPEARANCES: 01 02 Lancione & Simon 02 By John G. Lancione 03 1300 East Ninth Street 03 1616 Bond Court Building 04 Cleveland, Ohio 44114-1503 04 05 On behalf of the Plaintiffs. 05 06 Reminger & Reminger 06 By Marilena DiSilvio 07 113 St. Clair Avenue, N.E. 07 Suite 700 08 Cleveland, Ohio 44114 08 09 On behalf of Defendant Dr. Haftkowycz. 09 10 Arter & Hadden 10 By Thomas H. Allison 11 1100 Huntington Building 11 925 Euclid Avenue 12 Cleveland, Ohio 44115-1475 12 13 On behalf of Defendant Fairview Hospital. 13 14 - - - 14 15 15 16 16 17 17 18 18 19 19 20 20 21 21 22 22 23 23 24 24 25 25 0003 01 Tuesday Afternoon Session, 02 July 21, 1998. 03 - - - 04 STIPULATIONS 05 It is stipulated by and between counsel for the 06 respective parties that the deposition of Philip T. 07 Nowicki, M.D., a witness herein, called by the 08 Plaintiffs under the applicable Rules of Civil 09 Procedure, may be taken at this time by the Notary; that 10 said deposition may be reduced to writing in stenotypy 11 by the Notary, whose notes thereafter may be transcribed 12 out of the presence of the witness; and that proof of 13 the official character and qualification of the Notary 14 is waived. 15 - - - 16 17 INDEX TO EXHIBITS 18 - - - 19 Deposition Exhibit Identified 20 1 - Opinion letter of Dr. Nowicki 20 dated February 24, 1998 5 21 21 22 - - - 22 23 23 24 24 25 25 0004 01 PHILIP T. NOWICKI, M.D. 02 being by me first duly sworn, as hereinafter certified, 03 deposes and says as follows: 04 EXAMINATION 05 By Mr. Lancione: 06 Q. Would you state your full name, please. 07 A. Phillip, with one L, Theodore Nowicki, 08 N-o-w-i-c-k-i. 09 Q. Where do you reside, Doctor? 10 A. In Pickerington, Ohio. 11 Q. What's your address? 12 A. 4969 Wagonwood Drive in Pickerington. 13 Q. By whom are you employed? 14 A. By The Ohio State University and by the 15 Pediatric Academic Association, which is the practice 16 plan for the Department of Pediatrics at The Ohio State 17 University. 18 Q. When did you first become involved as an expert 19 witness in this case? 20 A. When I was contacted by Steve approximately six 21 months ago. 22 Q. Do you have a date? 23 A. I have a letter someplace, but I don't have a 24 date in my mind, no. 25 Q. Did you bring your file with you? 0005 01 A. I don't have a file. 02 Q. Where would the letter be? 03 A. In my office. I can get it. 04 Q. Okay. Would you, please? 05 A. Sure. 06 Q. And any other document you might have in 07 connection with your work in this case. 08 A. Okay. 09 (Off the record.) 10 A. I don't have it. I can't find it. We can find 11 out when it was, I'm sure. What I have here is the 12 report that I prepared and also the medical record of 13 the child. That's what I've used. 14 Q. May I see those, please. Doctor, showing you 15 what is marked Exhibit 1 for purposes of identification 16 at this deposition. Doctor, the document I just handed 17 to you, can you identify it, please. 18 (EXHIBIT MARKED FOR IDENTIFICATION.) 19 A. This is the report that I prepared for Steve 20 Walters regarding this case on February 24, 1998. 21 Q. Is that the first and only written report that 22 you prepared? 23 A. Yes, sir. 24 Q. Do you have any other written notes or 25 memoranda of any kind in connection with your work here? 0006 01 A. No. 02 Q. Has your deposition been taken before, Doctor? 03 A. Yes, sir. 04 Q. If you don't understand any of my questions, 05 please ask me to clarify them before you answer. You 06 have a tendency to start to answer the question before 07 I'm finished, so please wait until I'm finished before 08 you answer, okay? 09 A. Fine. 10 Q. These yellow note pad pages throughout the 11 hospital record that I'm looking at, are those pages 12 that you put in here? 13 A. Yes. 14 Q. And what was the purpose of that? 15 A. They represent portions of the medical records 16 that highlight my testimony or my evidence regarding my 17 testimony. 18 Q. Have you read any other documents other than 19 the documents that are represented in this black folder? 20 A. Yes. 21 Q. What? 22 A. I have read the depositions of the nurses, Fawn 23 Hoefke, Cathleen Hugney, Dr. Haftkowycz, Dr. Landon, Dr. 24 Gimovsky, and I think that's it. 25 Q. Dr. O'Grady? 0007 01 A. Yes. 02 Q. Dr. Nakon? 03 A. No, I have not seen that one. Oh, and the 04 doctor from Louisiana. 05 MS. DISILVIO: Cline? 06 A. Cline, the neurosurgeon. 07 Q. Tell me about your experience in consulting as 08 an expert in medical malpractice cases. 09 A. I have been working as a consultant for 10 approximately the past seven years. I work for both 11 Plaintiff and Defense, whoever calls. I have never 12 advertised. I do about four to five cases a year. It's 13 a very small percentage of my time. 14 Q. And I don't have your CV here, but your 15 specialty is pediatrics? 16 A. I am a Professor of Pediatrics and Physiology 17 at The Ohio State University. I am Board certified in 18 pediatrics and also in neonatal/perinatal medicine. My 19 clinical specialty is that of neonatology. 20 Q. And where do you practice that specialty? 21 A. At the present time, I practice that specialty 22 primarily at University Hospital in the intensive care 23 nursery here in Columbus, Ohio. 24 Q. And what are your present duties in some kind 25 of time frame at the ICU at OSU? 0008 01 A. I spend approximately 50 percent of my time in 02 clinical work and the rest in research and teaching. 03 Q. Let me go back to my question. How much time 04 do you spend in the intensive care unit at OSU? 05 A. I attend that nursery three months a year each 06 July, December, and March. During that time I am the 07 sole physician responsible for the unit. All admissions 08 to the unit are my patients. I'm the only one there. I 09 also cross-cover the nursery every other night and every 10 other weekend throughout the entire year. 11 Q. And what does that mean? 12 A. That means that going roughly 5:00 in the 13 afternoon through 7:00 the next morning on a weekday, or 14 from 5:00 on Friday afternoon until 7:00 on Monday 15 morning, I am responsible for those patients every other 16 weekend, every other night. 17 Q. You're on call. You're not at the unit, 18 correct? 19 A. I am on call, correct. But when I am on call, 20 roughly half of the days I am on call I am called into 21 the hospital. 22 Q. Now, other than the three months, what are your 23 clinical responsibilities other than you've told me 24 about in the ICU and the on-call responsibilities? 25 A. I have none. 0009 01 Q. The rest of that is research? 02 A. And teaching. 03 Q. Didactic teaching? 04 A. My teaching is to second-year medical students 05 in physiology, to third-year medical students in 06 pediatrics, to fourth-year medical students in 07 pediatrics, to pediatric residents in the field of 08 neonatology, and to obstetrical residents in the fields 09 of fetal physiology and fetal medicine. 10 Q. And where are those responsibilities fulfilled? 11 A. Primarily at University Hospital and at 12 Children's Hospital here. 13 Q. And what time period do those responsibilities 14 involve? 15 A. My primary responsibility is when I am on 16 service, the three months that I am on service. 17 However, I have teaching responsibilities year round. I 18 attend conferences year round, and I'm expected to 19 provide lectures for medical students year round. 20 Q. When and where do you do that? 21 A. I do that over on campus to the second-year 22 medical students. I do that here at Children's Hospital 23 to the third-year medical students. 24 Q. And where do those take place? How many days 25 and hours a week? 0010 01 A. The second-year medical students it's a series 02 of four lectures given through their physiology core. 03 The third year medical students, it's a pediatric core, 04 and the neonatologists rotate through that core so 05 whenever I'm up for the core, it's a series of five 06 lectures that we have to give. It occurs about once a 07 year. 08 Q. So one time a year you give the same lecture 09 basically five times? 10 A. Not the same lecture, a series of lectures, 11 but, yes. 12 Q. Over what time period? A day? A week? 13 A. A week. 14 Q. And your office here, we're at the Wexner 15 Research Center; is that right? 16 A. Yes. 17 Q. And where is your office located? 18 A. Right across the hall, Room 310. 19 Q. And what staff do you have here? 20 A. I have two full-time laboratory technicians, 21 one part-time laboratory technician who work for me off 22 my grants, and I'm also responsible for two younger 23 faculty members who are new to the research process. 24 I'm mentoring them. 25 Q. And what specifically is the research that 0011 01 you're doing at this time? 02 A. At the present time we are looking at the 03 developmental physiology of receptors in the vascular 04 system. We're looking at the development of the ability 05 of the infant to control blood flow during fetal and 06 postnatal life. 07 Q. Does this involve animal research? 08 A. Yes, it does. 09 Q. Is that done here? 10 A. Yes, it is. 11 Q. Is that your only research area at this time? 12 A. Yes. 13 Q. And how long has that been the case? 14 A. 15 years. 15 Q. And I noted in your CV that almost all of your 16 publications deal with that subject matter in one way or 17 another? 18 A. That's correct. 19 Q. You are not an obstetrician? 20 A. No, sir. 21 Q. Nor a gynecologist? 22 A. No, sir. 23 Q. And you don't treat patients with that 24 specialty of medicine? 25 A. No, sir. 0012 01 Q. The specific question that you were asked to 02 pass upon in this case as an expert was to determine if 03 the baby, Robert Paoloni, if the baby's presentation and 04 course were consistent with that of an infant of a 05 diabetic mother, correct? 06 A. Yes. 07 Q. You are not dealing with the condition of the 08 mother as evaluated and treated by any obstetrician, are 09 you? 10 A. No. 11 Q. So that regardless of what the opinions might 12 be with respect to the mother, you're strictly focusing 13 on the presentation of the infant, correct? 14 A. Not exactly. There are issues in this case 15 regarding accuracy of certain tests and regarding modes 16 of delivery, that while not being an obstetrician, I 17 would have some opinion on. Specifically, one does not 18 need to be an obstetrician to know about the accuracy of 19 fetal ultrasonography at term. One has to be a 20 physiatrist or know about ultrasound which I do. 21 From that context I would say that without 22 necessarily providing an opinion regarding what this 23 doctor did or didn't do, I would be able to provide an 24 opinion regarding the accuracy of certain tests at 25 certain times. 0013 01 Q. You're saying that you are going to express an 02 opinion in this case concerning the accuracy of 03 ultrasound at term? 04 A. If I was asked, yes. 05 Q. And tell me what your experience is with 06 ultrasonography of pregnant women at term? 07 A. In what context? 08 Q. Anything. Have you ever treated and had an 09 ultrasound done of a patient like that? 10 A. No; but as I work at University Hospital with 11 our perinatologists very closely involving myself with 12 the patient as a fetus before the child is born, I am 13 very aware of ultrasonographic techniques and what 14 they're able to show and what they're not able to show. 15 At University Hospital, I work very closely with the 16 perinatologists when there are situations where my 17 opinion from the standpoint of fetal physiology and 18 newborn medicine might become necessary or appropriate. 19 Q. Is the accuracy of ultrasound dependent upon 20 the time during the pregnancy that the test is done? 21 A. Yes. 22 Q. To some extent? 23 A. Yes. 24 Q. And why is that? 25 A. It's common sense. When the egg and sperm 0014 01 unite, those cells are all the same size. They divide, 02 divide, divide. During the first, roughly, 20 weeks of 03 gestation, human embriologic growth is extremely 04 standard unless there is significant genomic aberration, 05 chromosome problems or maternal inspection. The 06 standard deviations at 20 weeks' gestation is very 07 small. That is why obstetricians are so able to 08 pinpoint the gestational age of a fetus before the 20th 09 week with an ultrasound because the femur length, et 10 cetera, are very, very similar. 11 Q. What do you mean they're similar? Similar to 12 what? 13 A. All fetuses are about the same. If the fetus 14 is growing in a normal healthy uterus and has a normal 15 complement of chromosomes and has not been invaded by an 16 infecting virus or microbe, then the growth is very 17 standard if all is well. Beginning at about 20 weeks 18 gestation there is a very distinctive change in the rate 19 of fetal growth. At that time the process of 20 embriogenesis shifts from primarily developing organs to 21 growing organs. 22 In other words, in the first 20 weeks you form 23 the heart, you form the liver, you form the intestine, 24 you form the brain. In the last 20 weeks you grow the 25 heart, you grow the liver, you grow the intestine, you 0015 01 growth the brain. That last 20 weeks has quite a bit of 02 variability to it. As a consequence, fetuses at term 03 have a fairly substantial variation in their birth 04 weight. If you were to look at the weight of abortuses 05 at 18 weeks' gestation, they would all weigh about the 06 same, but obviously at birth they're all fairly 07 substantially different. 08 The other reason that ultrasound becomes a 09 problem later in gestation is because the amount of 10 amniotic fluid around the child has become compressed or 11 decreased because the child is becoming bigger. In 12 other words, the ability of the ultrasonographer to 13 measure things against a back drop of amniotic fluid has 14 been compromised. 15 In this particular case, regarding this 16 particular patient, you have one additional very 17 important factor. This woman's pre-pregnancy weight was 18 260 pounds. That is morbid obesity. I'm 20 pounds over 19 my ideal weight. I should lose it, my wife tells me. 20 This woman at 5 feet 8 inches tall should weigh 131 21 pounds. She weighed 260 pounds. She was twice her 22 normal weight. Women, unfortunately, gain that weight 23 around the pelvis and the hips, which means that the 24 ultrasound beam would have had to go through a very 25 large pad of fat before it even hit the baby. The 0016 01 accuracy of ultrasonography is clearly unequivocally 02 compromised in obese patients. There is no question 03 about that. 04 Q. But it had no effect upon the two ultrasounds 05 that were taken at 20 and 25 weeks, I think it was? 06 A. You have no way of knowing that. How can you 07 say that? 08 Q. Well, that's my question. Do you know? 09 A. The only way you would have been able to 10 determine if the ultrasounds were accurate would have 11 been to extricate the fetus at that time and compare 12 your ultrasonographic measurements to the actual child's 13 size, so there's no way of knowing. 14 Q. But they did, on both of those ultrasounds, the 15 reports indicated that all the appropriate measurements 16 were made? 17 A. Right. 18 Q. And they visualized the fetal anatomy? 19 A. Yes. 20 Q. The kidneys, the bowel, the chest, the heart, 21 the spine, the face? 22 A. Correct. 23 Q. So that there wasn't any obstruction that 24 apparently was significant. There was no report here 25 that they had any problem because of her 260 pounds of 0017 01 weight? 02 A. Yes. 03 Q. Or actually she weighed more than that when 04 these were taken. Actually, they determined at the 05 second ultrasound on December 19 at 25 weeks that the 06 fetal weight was in the 72nd percentile, correct? 07 A. Correct. 08 Q. And there wasn't anything that said that they 09 had any difficulty with the procedure or that it was 10 inadequate in any way, correct? 11 A. Correct. 12 Q. And since no ultrasound was taken after that, 13 we can't say what the results of that would have been, 14 can we, with any degree of scientific or medical 15 probability? 16 A. Correct. 17 Q. Are you familiar with the literature that talks 18 about the accuracy of ultrasound in predicting weight at 19 term? 20 A. Yes. 21 Q. Would you agree with me that there's generally 22 an agreement that the deviation is plus or minus, in 23 some cases, as wide as 10 to 20 percent? 24 A. Correct. 25 Q. So tell me in addition, do you have any other 0018 01 opinions about ultrasound or any other tests since you 02 mentioned testing and studies? 03 A. No. 04 Q. No? 05 A. No. 06 Q. That's the extent of your opinions on that 07 subject? 08 A. Yes. 09 Q. And did you say you have other opinions about 10 the obstetrical care of the patient? 11 A. I have two opinions: one, there has been 12 concern raised in the depositions that I have read that 13 the woman should have had a Caesarean section. Nowhere 14 in these depositions, to at least my reading, is the 15 point made that performing a Cesarean section on a 300 16 pound woman is a dangerous and potentially risky 17 business. In other words, laypeople think that we just 18 make a big hole and grab the child and out it comes. 19 The fact of the matter is that I have seen obstetricians 20 wrestle with large babies just as vigorously from above 21 as from below. Performing a Cesarean section, 22 anesthetizing a 300 pound pregnant woman is dangerous. 23 You can do spinal anesthesia or an epidural which is 24 going to be difficult to do possibly because of her 25 size. There's a risk to her spinal cord. There's a 0019 01 risk of wound dehiscence postoperatively. There's a 02 risk of uterine damage because of her size. So I think 03 that it's important, at least at some point, that it be 04 made aware, that people be made aware that whereas 05 Cesarean section is certainly something you might have 06 considered here, that it's not to be looked upon as it 07 would have saved the day. It's a difficult procedure to 08 do in a 300 pound woman. Now, I have never done one. I 09 have seen hundreds done. And I am sure that both your 10 experts and anybody else you want to get who is an 11 obstetrician will tell you that when they are confronted 12 with a patient with morbid obesity, that they're not 13 really anxious to be doing sections. 14 My second opinion is that in putting this whole 15 case together, it kind of strikes me as odd that this 16 physician is being vilified when what he did was save 17 the child's life. He went into this operative delivery 18 from below. Now, put apart, put away for a moment the 19 issue of should she have been scanned because, quite 20 frankly, she puts me on the stand and I'll convince a 21 jury that the scan is plus or minus 20 percent and, 22 therefore, he would not have known how big the child 23 really was. There are papers out there, good papers and 24 good journals that clearly state that the ability to 25 assess fetal size by hand maneuvers is equal to that of 0020 01 ultrasound at term. I have them not here, but I can 02 produce them if given sufficient time. 03 This child is born, the head comes out, you 04 have shoulder dystocia. This child nearly died. His 05 one-minute Apgar score was zero. His five-minute Apgar 06 score was two. If this physician had not done what he 07 did, we would not be talking about a limp arm; we would 08 be talking about a dead baby or a severely brain damaged 09 baby. 10 If you come to me with a serious injury and 11 say, "Doctor, I'm seriously injured." 12 And I say back to you, "I can save your life 13 but I can't save your arm." What's your answer going to 14 be? This guy, as far as I'm concerned, had a very obese 15 mother, a very big baby, he knew it was big going in, 16 but he didn't know how big and I don't think anybody 17 could have known how big. He did the best he could. He 18 got that baby out. If he had not done what he did, the 19 child would have died or would have sustained massive 20 brain damage. 21 Q. Okay. I appreciate your advocacy and your 22 argument, Doctor, and so I want to discuss some of these 23 with you. Who has the right to consent to the mode of 24 delivery of the baby? 25 A. There is no right to consent. 0021 01 Q. Who has the right to consent to surgery, any 02 surgery by any physician? 03 A. The patient. 04 Q. The patient, correct. Do you know what this 05 doctor discussed with the patient about the risks -- 06 A. No. 07 Q. -- of this delivery? 08 A. No, I do not. 09 Q. Do you disagree with the obstetricians who have 10 testified in this case regarding the right of the 11 patient to be told the reasonable and appropriate risks 12 of this pregnancy and of the delivery and of the mode of 13 delivery? 14 A. Absolutely not. 15 Q. And if this patient would have been told about 16 the risks and if she would have said to the doctor, "My 17 husband and I have discussed this and we would like to 18 have a C-section," and the doctor would have performed a 19 C-section prior to the trial of labor, this baby 20 probably wouldn't have had the arm that the baby had, 21 right? 22 MS. DISILVIO: Objection. 23 MR. ALLISON: Objection. 24 A. You have no proof of that. 25 Q. You have no proof of the speculation that 0022 01 you've been giving and arguing about either, do you? 02 MS. DISILVIO: Objection. 03 Q. Go ahead. She's just objecting for the record. 04 You have to answer. 05 MS. DISILVIO: I want to make sure there's an 06 objection noted to that previous question too. 07 A. I have obvious proof. Look into the eyes of 08 the child. He is alive. He smiles at you. 09 Q. That's your proof? 10 A. Yes. 11 Q. I understand. 12 A. What more proof do you need? 13 Q. Proof that he would have a healthy arm would be 14 nice, wouldn't it? 15 A. You have no way of knowing that. 16 Q. Nor do you? 17 A. Nor do I. 18 Q. Now, getting on to your opinions on the subject 19 that you wrote on the appearance of this child, do you 20 have anything in addition to the information contained 21 in your report, anything else at all to say? 22 A. No. The child was clearly not an IDM. There 23 is absolutely no question about that. 24 Q. There is no evidence whatsoever? 25 A. None whatsoever. 0023 01 Q. Are there cases, Doctor, where babies of 02 gestational diabetic mothers don't have any of the 03 indicia that you've indicated are necessary to show that 04 they are? 05 A. I'm sorry. I don't understand the question. 06 Q. Are there babies that are born whose mothers 07 have had gestational diabetes who appear without any of 08 the symptoms and signs and laboratory studies that you 09 say are necessary as indicia of being born of a diabetic 10 mother? 11 A. It's a function of the mother's glucose control 12 during the last portion of pregnancy. 13 Q. Can you answer the question? 14 A. I'm answering the question. 15 Q. Okay. Is it true or not true? 16 A. That is not a yes or no question. 17 Q. Okay. 18 A. It's a function of the mother's glucose 19 tolerance during the last trimester of pregnancy. If 20 the mother is a gestational diabetic and if she is 21 hyperglycemic during that last 12 weeks, 16 weeks, and 22 the child would have been exposed to her glucose across 23 the placenta, that would have stimulated the child's 24 pancreas to produce insulin which would have caused the 25 child to grow massively. So that you could have a 0024 01 mother who has got gestational diabetes but who's 02 well controlled or a mother who has insulin dependent 03 diabetes pregestationally who is well controlled, whose 04 glucose is well controlled during pregnancy, and, 05 therefore, does not expose her fetus to hyperglycemia 06 and the child will come out perfectly fine. 07 All of the problems with infants of diabetic 08 mothers are the consequence of maternal hyperglycemia 09 and the subsequent hyperinsulinism which the child 10 produces. 11 Q. So it doesn't really matter how this child got 12 to be 5400 grams, does it? This was a big baby? 13 A. You have to phrase the question more 14 completely, I mean. 15 Q. Does it matter how this baby got to be 5400 16 grams? 17 A. To who? 18 Q. To the mother and to the obstetrician? 19 MS. DISILVIO: If you don't understand the 20 question, Doctor, ask Mr. Lancione to rephrase it for 21 you. 22 A. I mean, are you saying from the standpoint of 23 what you would have done for the delivery? I think if 24 the mother was a diabetic -- 25 MS. DISILVIO: Hold on a second, Doctor. Don't 0025 01 guess to what his question means. 02 MR. LANCIONE: He can answer the question if he 03 wants to. 04 MS. DISILVIO: He is guessing as to what your 05 question is. 06 Q. Are you guessing at my question? 07 THE WITNESS: No. I think I know what he's 08 talking about. 09 MS. DISILVIO: All right. 10 A. Thank you. I think that most obstetricians 11 would be very, very cautious about a large fetus who was 12 in the womb of a mother who was a known diabetic because 13 of the risk and fetal complications, and the postnatal 14 complications to the baby. In other words, if you have 15 a large, large baby, because of hyperinsulinism there's 16 a lot of things that do happen to that child 17 postnatally, and so under that circumstance the 18 obstetrician might think of that in a somewhat different 19 fashion. 20 Q. Do you know whether or not there is a standard 21 for defining macrosomia? 22 A. Yes. 23 Q. What is it? 24 A. Macrosomia is defined in this country as a 25 fetus that weighs more than roughly 4 kilograms. 0026 01 Q. 4,000 grams? 02 A. Right. 03 Q. And do you recognize that there's any standard 04 in obstetrics for a standard of care to be exercised by 05 reasonably prudent physicians in the face of microsomia? 06 A. I'm not an obstetrician. 07 Q. Now, if you are going to testify that the range 08 of error in ultrasound at term is 20 percent and base 09 that testimony on literature rather than your own 10 personal experience, are you going to do that? 11 A. That would be my only means to do it. 12 MS. DISILVIO: In all fairness, he doesn't know 13 what he's going to be asked at the time of trial. 14 MR. LANCIONE: Well, I can ask him those 15 questions certainly at this time, can't I? 16 MS. DISILVIO: Certainly. 17 MR. LANCIONE: Thank you. 18 A. I would have no other recourse but to use 19 literature. 20 Q. The trial in this case is August 25th. I would 21 like to have the literature, all of the literature that 22 you claim supports that hypothesis. 23 A. Which hypothesis now, just so I'm sure. 24 Q. That the deviation from accuracy is 20 percent 25 in ultrasound at term. 0027 01 A. Well, you're the one stating 20 percent, not 02 I. I'm only telling you that the accuracy decreases as 03 you approach term and we can find that out. 04 Q. I misunderstood you. I thought you were going 05 to say it was 20 percent deviations. 06 A. No, you used the No. 20. 07 Q. I said 10 to 20 percent. 08 A. You used the numbers. All I said was that 09 there is less accuracy as you get towards term and we 10 can certainly produce that. That's not a problem. 11 Q. Okay. I would like to have that within some 12 reasonable period of time. Would ten days be adequate 13 for you to send that to counsel? 14 A. No, I'm on service this month. I cannot get it 15 to you until the second week of August. I will be away 16 with my family on vacation in the first week of August. 17 I do not have time to do library searches in July. I 18 can do it when I come back from my vacation. 19 Q. And you'll have that by when? August what? 20 A. 15. 21 Q. Well, I would like it as soon as possible and 22 as soon as you can get it to me, that will determine 23 what I have to do. So are you going to express any 24 opinions based upon reasonable medical probability that 25 are critical of any of the experts that have testified 0028 01 in this case, critical of any of their opinions? 02 A. Yes. 03 Q. And whose opinions are you going to be critical 04 of? 05 A. Dr. Gim -- 06 MS. DISILVIO: Gimovsky. 07 A. Gimovsky. I should be able to pronounce that. 08 I'm Polish myself. 09 Q. What opinions of his are you going to 10 challenge? 11 A. In his deposition he claims that the child was 12 an infant of a diabetic mother because the head 13 circumference was small, the body was large and because 14 the child was hypoglycemic, and both are untrue or both 15 are incorrect. 16 Q. Did you mark that page? 17 A. Yeah. This is the No. 38 centimeter head 18 circumference, if you look at the picture here. 19 Q. Yes. 20 A. All babies that are born in this country have 21 these data plotted out at the day of their birth. Head 22 circumference, length, weight. Initially when this 23 child was taped out they plotted it down here, but that 24 was an error. The head circumference was 38 25 centimeters. The normal head circumference is 33.5 0029 01 centimeters. This child is well above the 98 02 percentile. He claimed it was 75th. I think what he 03 did was look at that and plot in error. 04 Q. The copy he has was so dark. 05 A. Right. I'm sure that was the reason. 06 Q. But the 75 was plotted and Xed over, obviously. 07 A. Yes, because the measurement is right here and 08 the child's admitting history and his physical at 38 09 centimeters, which means that the child did not have the 10 classic physiognomy of an IDM having a large body and a 11 small head. He had a large body and a large head. He 12 was just a macrosomic infant. 13 Q. Macrosomic? 14 A. Yes, a big kid. The other opinion that he had 15 was the child became hypoglycemic at birth. He's right, 16 but he's also wrong. This number that I've related here 17 is 64. Bobby was born at 1:28 in the morning. Now, he 18 was very depressed at birth and the doctor did a 19 beautiful job. This child received magnificant care at 20 this hospital. The parents should send them flowers 21 every year. They saved this child's life beautifully. 22 They gave the child -- they placed an umbilical venous 23 catheter during the child's immediate post birth period, 24 but what they gave was normal saline. Normal saline has 25 no glucose in it at all. There is a dextrose stick done 0030 01 at 2:01, 33 minutes after the child was born. 02 Infants of diabetic mothers, especially ones 03 that would be this big, as a consequence of their 04 hyperinsulinism are going to have a very, very rapid and 05 sharp drop in their glucose within 30 minutes of birth. 06 This child had received no glucose at all but it had 07 been stressed incredibly by this difficult delivery; 08 yet was still able to maintain a glucose in the normal 09 range. That is completely incompatible with being an 10 IDM. The hypoglycemia that he experienced was at 6 11 hours of age, and that was just a matter of the nursing 12 staff and the attending neonatologist adjusting his 13 fluids and adjusting his fluid administration. They had 14 decreased his fluids because we do that routinely in 15 asphyxiated babies so they don't get water overloaded, 16 and when that happens the dextrose concentration that 17 was being given was decreased so he became transiently 18 hypoglycemic and he responded perfectly to a very small 19 push of glucose; and in a diabetic mother, a baby who 20 weighs 5.5 kilos at birth and whose macrosomia is the 21 consequence of hyperinsulinism is going to have to get 22 at least 25 milligrams per kilogram per minute of 23 glucose from birth onward to maintain a normal blood 24 sugar. Bobby only received 5 milligrams per kilogram 25 per minute beginning one hour after he was born. And 0031 01 the only time he was hypoglycemic was when the nurses 02 cut his I.V. rates back transiently to make sure he 03 wasn't gaining too much weight. It's completely, 04 completely incompatible with being an IDM. 05 Q. So you disagree with Dr. Gimovsky's conclusion 06 that this lady was an overt diabetic? 07 A. No. What I'm saying is not that this mother 08 was a gestational diabetic. What I'm saying is that 09 Bobby was not an IDM unequivocally. There's absolutely 10 no doubt that this child's macrosomia was related to 11 hyperinsulinism. It was not. 12 Q. So she may have been carbohydrate intolerant, 13 she may have been an overt diabetic but that did not 14 result in this child being a 5400 gram baby? 15 A. The reason that she grew a very large child is 16 known but to God. I mean the fact is that there are 17 some people out there that grow very, very big babies 18 and we don't know why. That has nothing to do with 19 hyperinsulinism. 20 Q. And that usually is something that occurs in 21 families, isn't it? 22 A. It can be, but not necessarily so. 23 Q. And you speculate that the father was large too 24 in this case, in your report, don't you? 25 A. Well, the mother, as women go, is a large 0032 01 woman. 02 Q. And you said "I suspect a large father"? 03 A. He probably is. Is he? 04 Q. Depends upon what you classify as large. 05 A. Is he bigger than me? I'm 6 feet, 200 pounds. 06 I consider myself just above the norm for an American 07 male. 08 Q. You'd expect a large -- 09 A. I'd expect 6-2, 6-3. 10 Q. 220? 240? 11 A. Yeah. 12 Q. You don't know anything about the maternal 13 birth weight in this case, do you? 14 A. I'm sorry, the what? 15 Q. Maternal, the mother's birth weight? 16 A. No, I do not. 17 Q. The birth weight of her siblings? 18 A. No, I do not. 19 Q. Or the birth weight of the baby's, if there's 20 siblings? 21 A. No, I do not. 22 Q. And you're not an obstetrician so you wouldn't 23 have any opinion as to whether or not an obstetrician 24 should know those kinds of things on a patient that's 38 25 years old, an elliperous patient? 0033 01 A. That's correct. 02 Q. Weighing 260 pounds? 03 A. I don't practice obstetrics, I agree. 04 Q. What about Dr. Landon, what of his opinions do 05 you have criticism of? 06 A. None. 07 Q. And tell me about your publications in the 08 field of gestational diabetes and infants of gestational 09 diabetic mothers. 10 A. I have none. 11 Q. And how many -- you said you review four to 12 five cases a year? 13 A. Correct. 14 Q. And that's been true for how many years? 15 A. About four to five. I began this about seven 16 years ago, but it really picked up steam about four to 17 five years ago. 18 Q. And how many depositions do you give in a year, 19 usually? 20 A. Probably about three to four. 21 Q. And where are those given? Here? 22 A. Here. 23 Q. And have you testified in court before? 24 A. Yes, once. 25 Q. Where? 0034 01 A. Huron County. 02 Q. On behalf of whom? 03 A. On behalf of the Defendant. 04 Q. And what was the nature of that case? 05 A. It was a case involving a child. The mother 06 came in at 34 weeks' gestation. She was in labor. She 07 had ruptured her membranes. The obstetrician began 08 Pitocin and had a labor of 36 hours, and the child was 09 born profoundly depressed. The family practice doctor 10 in the delivery room did the best he could to help the 11 child. By the time the child was born, the child had 12 already taken a major hit and I was defending the 13 pediatrician basically saying that he had done a good 14 job and that the problem that had occurred with the 15 child had occurred before the child had been delivered. 16 Q. Who were the attorneys that were representing 17 or that you were working for? 18 A. Beverly Sandacz. 19 Q. Out of? 20 A. Reminger & Reminger. 21 Q. How many other cases have you consulted for 22 with the Reminger law firm? 23 A. I think one but I'm not sure. I know at least 24 one, at least one. 25 Q. What was that? 0035 01 A. I don't remember. I don't keep records of 02 this. 03 Q. Who was the lawyer? 04 A. I don't remember. I don't keep records of this 05 stuff. Once the case is done, it goes into the circular 06 file. 07 Q. Prior to that, you do keep a record of your 08 time that you spent? 09 A. Yes. 10 Q. And the amount you bill out and you keep a 11 record of what you're paid? 12 A. Yes. 13 Q. What other law firms have you consulted with in 14 the Cleveland area? 15 A. I can't -- I've worked for a firm in 16 Jacksonville, Florida; I have worked for a firm, it was 17 Jaworski, something and Jaworski down in Houston, Texas; 18 Lord, Bissell & Brook from Chicago, and that's the ones 19 that I remember because they have nice stationary. 20 Q. They're all firms that represent doctors rather 21 than patients? 22 A. I have done work for both Plaintiffs and 23 doctors. 24 Q. Tell me about the Plaintiffs' cases that you 25 worked on. 0036 01 A. I have done at least two Plaintiffs' cases that 02 I can remember. They were several years ago. One was a 03 child that had been born who had an infection at birth 04 and the child was, the case was -- the alleged 05 misconduct was on the part of the pediatrician who had 06 not recognized the symptoms of sepsis early enough, and 07 the other was for an obstetrician, was a case of 08 proximate cause. He suspected brain damage, and allowed 09 a woman to labor with late decelerations and no fetal 10 variability for a sustained period of time and I was 11 asked to testify regarding when the injury was caused. 12 Q. Other than those two Plaintiffs' cases, have 13 you testified or offered opinions in support of the 14 patient in any other cases? 15 A. No, but I'm always willing to do so. When the 16 phone rings, I answer it and I would always be willing 17 to review a case. My comment to the lawyer is always 18 simply this: "Just send me the information. I'll look 19 at it. If I think the case has merit in what you're 20 looking for, I will tell you if I can help you. If not, 21 I will tell you I can't." If a Plaintiff's lawyer 22 called me today, I would have no problem doing a 23 Plaintiff's case. Malpractice happens, there's no 24 question about that, and as far as I'm concerned, I 25 would have no difficulty in assisting a Plaintiff in 0037 01 redeeming compensation when malpractice has occurred, 02 absolutely none. 03 Q. What is your definition of malpractice? 04 A. A malpractice would be when a physician clearly 05 falls below standard of care primarily by means of 06 negligence, by not doing enough or by not paying close 07 enough attention to the details, by making assumptions, 08 and by not obtaining the kind of information that would 09 be necessary to truly help him make a decision one way 10 or the other, or by not rendering care in a timely 11 fashion. 12 Q. In addition to cases in Florida, Texas, 13 Illinois and Ohio, what other states have you testified 14 in or given testimony? 15 A. I don't remember. I think there was one in New 16 Mexico many years ago and I think there was one in 17 Oregon but you're taxing my memory. I really don't keep 18 records of this stuff. 19 Q. And what do you charge for your professional 20 services, Doctor? 21 A. $200 an hour to review a case, $300 an hour to 22 prepare a report, $300 an hour for a deposition, $500 an 23 hour for trial, plus there would be fees regarding trial 24 preparation and getting to and from the trial. I'm told 25 I work cheap. 0038 01 Q. The only question I have, Doctor, is what kind 02 of flowers you would recommend this family send to Dr. 03 Haftkowycz? 04 A. It wasn't to Dr. Haftkowycz; it was to the 05 Fairfield County Medical Center. 06 Q. Fairview? 07 A. Fairview. This child's newborn care was 08 absolutely outstanding. I have never read a chart that 09 is so well presented. These guys should -- 10 Q. Newborn care? 11 A. Yeah. These guys should advertise and teach 12 people how to write progress notes and record things in 13 the chart. It was marvelous, absolutely outstanding. 14 They did everything they should have done. 15 Q. You're not -- I understand what you're saying, 16 Doctor. You don't have to repeat it for me. 17 MR. ALLISON: I kind of enjoyed it. 18 MR. LANCIONE: Well, hey, be my guest. 19 Q. You weren't suggesting that they send Dr. 20 Haftkowycz flowers, though? 21 A. I think -- 22 Q. Did you think they should do that too? 23 MS. DISILVIO: Objection. 24 A. No. 25 Q. Do you have any opinion as to whether or not 0039 01 the nurses at Fairview General that were attending 02 during the delivery of this patient, the baby, exercised 03 appropriate standard of care? 04 MR. ALLISON: Objection. 05 A. I have no opinion. 06 MR. LANCIONE: That's all I have. 07 - - - 08 EXAMINATION 09 By Mr. Allison: 10 Q. Doctor, my name is Tom Allison. We met right 11 before your deposition and I just have a couple 12 questions for you. First, Mr. Lancione had asked you 13 about one of the comments that you made in your report 14 with respect that you suspected that perhaps Mr. Paoloni 15 was a large man. You have never seen Mr. Paoloni; is 16 that right? 17 A. No, sir, I have not. 18 Q. If, in fact, he's not a large man, if he's just 19 average built, say he's 5-9 and medium build, does that 20 have any effect whatsoever on your opinions in this case 21 as you expressed them today? 22 A. No. 23 Q. You've indicated a couple times that you 24 believe that the care that Bobby Paoloni received after 25 his birth at Fairview Hospital was, I think you have 0040 01 used the words, outstanding and marvelous and 02 magnificant. Those opinions, Doctor, are consistent 03 with the specifics of the newborn care as set forth in 04 your report, correct? 05 A. Yes, sir. 06 Q. And you still hold those same opinions 07 regarding his newborn care that's set forth in your 08 report, correct? 09 A. Yes, sir. 10 MR. ALLISON: Thanks, Doctor. That's all I 11 have. 12 MS. DISILVIO: Thank you very much. We'll read 13 it. 14 - - - 15 16 17 18 19 20 21 22 23 24 25