Dr. Barry Schifrin, a UCLA professor who pioneered electronic fetal monitoring, is questioned Wednesday by plaintiffs attorney Tommy Malone. (John Disney/Daily Report)
A controversial expert witness who pioneered electronic fetal monitoring gave a moment-by-moment analysis of what he called “the baby being injured” just before birth during a potential $50 million medical malpractice trial Wednesday in Cobb County State Court.
Under direct examination by plaintiffs attorney Tommy Malone, Dr. Barry Schifrin, who teaches medical students at the University of California, Los Angeles, interpreted fetal heartbeat tracings during Lori Sutton’s labor up through the birth of her son.
The boy, born in April 2008 with severe brain damage, went 19 minutes without a heartbeat before the medical team at WellStar Health System Inc.’s Kennestone hospital resuscitated him. The phrase “born dead” was used repeatedly in questions and answers.
Plaintiffs Lori and Landon Sutton allege that their baby would have been born healthy if their obstetrician, Dr. Gregg Alan Bauer of Marietta OB-GYN Affiliates, had heeded multiple signs of trouble and delivered Tucker with a timely cesarean section.
After about four hours of direct testimony, the doctor’s defense counsel, Daniel Huff of Huff Powell & Bailey, took about an hour to cross-examine Schifrin, finishing at 6:30 p.m.
To some extent, Malone had stolen Huff’s thunder by addressing Schifrin’s most obvious vulnerability—his 2004 censure by the American College of Obstetricians and Gynecologists, of which Schifrin’s father was a founder. Schifrin said the group attributed to him statements he never made and falsely accused him of lying in expert witness testimony in another med-mal case.
Schifrin said the group at the time favored a criminal standard for medical malpractice cases, meaning that a plaintiff would have to prove intent to harm. He said the group has since split into separate organizations for medical and political purposes, addressing his concerns.
Then Malone went over part of Schifrin’s 15-page vitae, asking him if in 2005, a year after he resigned as an ACOG fellow, the group gave him an award. Schifrin said that was correct.
On cross, Huff asked Schifrin if he usually testifies for plaintiffs. The doctor replied that earlier in his career, he mainly testified for defendants. The balance changed as more plaintiffs asked for his services. Huff asked him about speaking to groups of plaintiffs lawyers, such as the American Trial Lawyers Association, with topics such as “Understanding How Strips Can Help or Hurt Your Case.”
Schifrin answered that he did not write such titles, that he only responded to speaking invitations to teach people how to read the fetal monitoring strips that he helped develop.
Huff asked Schifrin about his earnings as an expert witness: $6,000 a day for trials, $600 per hour for pre-trial consulting, about $150,000 a year, and more than $2 million throughout his career. The doctor answered yes, adding, “There’s been a lot of money over 40 years.”
Even on cross-examination, the silver-haired and bearded doctor continued in the role in which Malone had introduced him, as a teacher. At one point while Huff was questioning him, Schifrin stood up from the witness chair and stepped back down into the well of the courtroom, pointing out details of fetal monitoring tracings on the screen and explaining them again to the jury.
The jury seemed to listen intently to Schifrin. Some members of the panel of 12 and two alternates raised their hands to say they were having difficulty seeing the details on the tracings projected on a wide screen on the opposite side of the courtroom. Malone’s trial animation consultant, Bob Poston of Legal Technology Services, stood and pointed to a large flat-screen television he had stored against the courtroom wall. Poston asked if it would help for him to put the tracings on the flat screen directly in front of the jury box. The jurors and Malone said yes. Judge Kathryn Tanksley of Cobb State Court allowed the move.
Poston sprinted out of the courtroom, then ran back in a moment later, carrying a large orange extension cord. Within seconds, the jury was watching the baby’s heart activity on the flat-screen TV, in some cases paired with the mother’s contractions and pushes.
Before moving into the technical analysis for which he’s become known, Schifrin presented a simpler reason for why Lori Sutton should have been offered a C-section when she arrived at the hospital about midnight: the baby was too big. Tucker weighed 11 pounds at birth.
Lori Sutton’s first baby, delivered vaginally, had weighed 9 pounds. Second babies are typically larger, Schifrin said. Her medical records indicated concerns about Tucker’s size and rapid growth. Schifrin said the doctor should have evaluated her upon admission, ordered an ultrasound and discussed a C-section.
But the doctor didn’t examine the mother until about 3:30 a.m., according to the medical records entered as evidence. He estimated Tucker’s size at 9 pounds by putting his hands on the mother’s abdomen, a method Schifrin said is the least reliable.
Schifrin acknowledged ultrasounds are not always accurate on weight estimates, adding that the most reliable method is the “very modern technique” of asking the mother how big she thinks the baby is. Had the doctor asked, he said, the mother would have said she felt this baby was larger than her first and that she had outgrown her maternity clothes. The medical records reflected the mother’s opinion. Added Schifrin, “Even the nurses said she was huge.”
A C-section should have been considered for the size of the baby, but most definitely should have been done by the time the doctor examined the mother at 3:30 a.m. because of other complications developing, Schifrin said. The baby’s heart rate was abnormally high and rising. The mother developed a fever and tested positive for infection. And when the doctor ruptured the membrane surrounding the baby around 3:30 a.m., he saw thick, green amniotic fluid, called meconium. That meant the baby had a bowel movement in the fluid, which would cause breathing difficulties at birth. The thickness also meant the fluid level was already too low, meaning the umbilical cord couldn’t float and might asphyxiate the baby.
Instead of a C-section, the doctor ordered Pitocin to accelerate the labor, which Schifrin said was a mistake and likely contributed to Tucker’s injury. The drug makes the contractions stronger and more frequent, but the mother was already having regular contractions. The drug caused the contractions to come too often, leaving the baby with no time to rest between, he said.
On cross, when Huff asked about his prior testimony against the use of Pitocin, the doctor said the drug is a “frequent contributor” to medical malpractice cases. Tucker was already stressed before the beginning of the pushing in the last half hour. He was too big to be safely delivered. His brain was likely injured in that process of pushing, even before his shoulder became stuck with his head delivered, cutting off his air, the doctor said.
The trial is expected to continue through next week. Malone and his son, Adam Malone, said they expect to finish presenting their case on Friday. Huff said he plans to begin presenting the case for the defense on Monday.
The case is Sutton v. Bauer, No. 2009A81944.