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In another entry (see ‘Related ObG Topics’ below), the necessary qualifications to be an expert witness were discussed. In this entry, we look at the expert witness from a different perspective, that of the ‘plaintiff’ expert witness. The job of the plaintiff expert is to convince a jury and a judge that a medical standard of care was not followed, and because it was not followed, the plaintiff’s patient was injured or died.

In Gallardo and D.R.G. v. United States of America, the plaintiff’s mother alleged that the obstetrician (1) did not properly interpret the fetal monitoring strip; (2) had the plaintiff continue to push in the presence of tachysystole and uterine hypertonus even though acidosis was evidenced by prolonged decelerations, minimal to absent variability, persistent late decelerations and tachycardia; and (3) did not perform a timely cesarean section.  The infant was diagnosed with cerebral palsy.  After a trial, the district court found in favor of the defendant physicians.

Both plaintiff experts agreed that the defendant obstetrician failed to properly interpret the electronic fetal monitor (EFM) strip and erred by not performing a cesarean section, but for different reasons. The first expert opined that based on the fetal heart tracing, a cesarean section should have been done when the baby was experiencing ischemic episodes during which it was not receiving enough oxygen. He also opined that the mother was allowed to engage in too much pushing, and that a cesarean section should certainly have been performed as the baby was exhibiting bradycardia based the EFM strip.

The second expert testified that it was not until the second stage of labor, i.e. the pushing phase, when the EFM strip began to indicate the development of severe fetal acidosis. Therefore, it was unreasonable for the obstetrician to have the mother push with almost every contraction because it left the baby with little or no time to recover and, consequently, the baby rapidly became acidotic.

Defense experts opined that electronic fetal monitoring has an extremely high false positive rate coupled with an extremely low positive predictive value for cerebral palsy, let alone hypoxic-ischemic encephalopathy and the severity of acidosis. The maternal history of two vaginal deliveries also classified the mother as low risk for cesarean section.

The district court chose not to accept the plaintiff expert testimony as defining the controlling standard of care because it was inconsistent not only with the opinions expressed by defense expert, but more importantly because it was inconsistent with the positions taken by ACOG in various publications. Specifically, EFM strips have questionable predictive value when it comes to cerebral palsy and should not be used in isolation to determine management. In addition, the divergent opinions of plaintiff experts as far as the proper course and timing of possible interventions that the defendant obstetrician should have followed also doomed plaintiff’s case. The court concluded that “[t]he standard of care in the face of persistently non-reassuring EFM strips in February 2007 could include a wide range of approaches.” Therefore, the obstetrician’s actions were reasonable given the wide-ranging standard of care.

Learn More – Primary Sources:

Gallardo and D.R.G., v. United States of America No. 12–1325, United States Court of Appeals, Tenth Circuit

Neurological Fallacies Leading to Malpractice: A Case Studies Approach

Litigation related to intrapartum fetal surveillance

Related ObG Topics:

So You Want to be an Expert Witness?

You’ve Been Served! Part One

You’ve Been Served! Part Two: Next Steps After Getting Court Papers

You’ve Been Served! Part Three: Intro to the Deposition