Explain stations of the head
It is important that a jury understand that only a few inches separate –3 and +3 stations. Try to prevent plaintiff’s counsel from making the distance between these points seem like a long journey. Tissues stretch, caput occurs, and the station of the head may therefore become difficult to identify with pinpoint accuracy. A nurse’s estimate of –2 and a physician’s estimate of –1 for the same patient may, in fact, be consistent.
Use terminology precisely
If the infant develops a hematoma as a result of vacuum extraction or a similar device, be clear and concise about exactly what the injury is. Don’t let a subdural hematoma be described as a “brain bleed”!
Beware the magic gloves!
Studies in which physicians work on a model using pressure-sensitive gloves tend to suggest that excessive pressure is used. However, when the gloves are used in actual deliveries, pressure tends to be appropriate. Any mention of pressure-sensitive glove studies by plaintiff’s counsel should raise a red flag.
Growth charts are unreliable
Many shoulder dystocia–related trials use growth charts as exhibits. If you are confronted with one of these charts, be certain that you know what type of chart it is and the age and location of the children on whom it was based. Prenatal and postnatal growth charts are not the same. A child who is LGA on a postnatal chart might not be on a prenatal chart.
An expert witness once pointed out to me the existence of some charts from high-altitude cities; on these charts, the 95th percentile is slightly lower because children born at high altitude may be slightly smaller. Use of a high-altitude chart for a marginally LGA child in New York will make that child appear even larger than it is.
Triple-check each chart exhibit to make sure it is accurate and based on reliable data.
4. Don’t lose the case at deposition
You can’t win your case at deposition, but you certainly can lose it. Misplaced words and artless answers can damage your defense irreparably. Work with your attorney to fully explore any medical issues or terms on which the defense hinges. A simple misstatement of fact or misuse of a medically significant term can lock the defense into a difficult position.
Because the deposition is a major aspect of litigation, you should study for it and meet with your counsel well in advance of the date. A preparation session more than a week before your deposition will give you time to mull the issues and resolve any conflicts in your mind. A second session may be necessary to revisit difficult issues.
Know likely points of contention
Medical terminology and the sequence of events are two of the most likely areas of confusion. For example, although most physicians can readily distinguish between suprapubic and fundal pressure, many staff members confuse the two, as do many patients and lay witnesses to the birth. Fundal pressure may increase impaction of the shoulder; suprapubic pressure, correctly applied, is appropriate during the McRoberts maneuver (FIGURE).1
Some attorneys prefer to have the physician present when witnesses and parents are giving a deposition. This certainly conveys the message that the physician is committed to defense of the case.
If you choose to be present during a deposition, understand that lay witnesses may give inaccurate testimony. If this occurs while you are present, don’t get emotionally involved; do remain a passive observer. Remember, a deposition is not a trial. Although inaccurate testimony can be frustrating to the physician, it will ultimately trap the witness at trial and may be his (or her) undoing.
FIGURE Suprapubic vs fundal pressure
“Fundal pressure may increase impaction of the shoulder; suprapubic pressure (shown here), correctly applied, is appropriate during the McRoberts maneuver”
5. Retain the best expert you can find
Because the credentials and strength of expert opinions are critical to your defense, endeavor to retain the most highly qualified expert possible. Seek out an expert on the standard of care as soon as possible after filing of the lawsuit. Your counsel should be in consultation with this expert early in the case—certainly before your deposition. You don’t want to risk giving testimony that is inconsistent with your expert’s opinion or impossible for your expert to defend.
A highly qualified expert may be someone who has written about dystocia or participated in major studies. He or she also should be active in the delivery of babies and use any instrumentation or devices involved in your case. I recently cross-examined a plaintiff’s expert in a vacuum extraction case who hadn’t used the device since he finished his residency in 1974! This left several jurors with expressions of incredulity on their faces.