August’s medical story
Three of the ten chapters:
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MEDICAL NEGLIGENCE or an ACT OF GOD
Until eleven minutes prior to our first child’s birth, the pregnancy had proceeded uneventfully. This at least is the opinion of the physicians and medical professionals who delivered the baby, whom we christened August. It is also their opinion that what happened to him during the next sixteen minutes was an act of God.
Was what happened an act of God? Or was the way August was delivered negligent? Readers of the following piece, August’s medical story, will have to decide for themselves.
AUGUST’S MEDICAL STORY BEGINS (1999):
In preparation for the birth, my wife Ilene had undertaken all the measures expected of an enlightened mother-to-be living in a technocratic society. She and I underwent genetic testing before conceiving, and Ilene had an amniocentesis early in the gestation period. All of the test results pointed to healthy development. She had also followed all of the recommendations for a healthy pregnancy found in What To Expect When You’re Expecting and other sources. Her pregnancy was deemed to be low risk, and her doctors allowed the baby to go eleven days past the due date before inducing labor.
UNIVERSITY OF CALIFORNIA, SAN FRANCISCO (UCSF)
Ilene was employed as a clinical professor of physical therapy at the University of California, San Francisco (UCSF). Because UCSF was her place of work and because she trusted the institution, she chose to have the birth there. It is also the location of the all-female OB-GYN practice that managed her prenatal care.
As a clinical professor of physical therapy, Ilene had successfully treated the dean of the medical school (he had a problem with his knee), so, as a little ‘thank you,’ she was assigned one of the medical center’s V.I.P. delivery suites. It offered a panoramic view of downtown San Francisco.
This was where August was born at 3:44 a.m., Friday, March 5th, 1999.
UCSF DOCTORS INVOLVED WITH THE BIRTH
August was delivered by Dr. Sarah Kilpatrick. UCSF being a teaching hospital, she served as the attending physician. She is a perinatologist, a doctor trained in the subspecialty of obstetrics concerned with the care of the fetus and high-risk or complicated pregnancies. Such a doctor is supposed to be highly skilled in prenatal diagnosis. According to the website of the Cedars Sinai Medical Center, where she is currently the chair of its Department of Obstetrics and Gynecology, she “is a nationally renowned expert in maternal-fetal medicine and women’s health.” She is also a prolific producer of scholarly research articles.
The resident physician (the doctor in training) under Dr. Kilpatrick’s supervision was Dr. Lisa Lipschitz. She now practices medicine at Scripps Health in San Diego.
A third doctor, Dr. Julian Parer, was the attending physician on Wednesday, March 3rd, when Ilene first arrived at the hospital. He started Ilene’s induction at 9 a.m. He was a doctor with a marvelous bedside manner. Years later, in 2016, we were sad to learn that he died while hiking in the hills of the Bay Area. Coincidentally, he had written a textbook on the subject of how to interpret fetal-heart-monitor readings.
About midday Wednesday, he rotated off and was replaced by Dr. Kilpatrick.
In the photo above, Dr. Kilpatrick is on the left. Center left is a resident, name unknown. Center right is a friend who was present at the birth, Pattye Tobase, also a clinical professor of physical therapy at UCSF. On the right is the main labor-and-delivery (L & D) nurse whose name we do not know. She was a per diem–a temporary hire–and so not a member of the UCSF staff.
FETAL HEART MONITOR:
EVENTS UP TO 3:03 A.M. FRIDAY, MARCH 5th, 1999
The baby’s due date had been February 20th. Troubling signs had been detected as early as February 22nd and again on March 1, but the staff at the OB-GYN practice managing Ilene’s prenatal care told her not to be concerned about them. One nurse said, “All expectant moms worry too much.”
We arrived before 9 a.m. on Wednesday morning, March 3rd, for Ilene’s induction to begin. Nearly two days later, Ilene was in her forty-second hour of labor.
Forty-nine minutes prior to the birth, at approximately 2:55 a.m., Friday, March 5th, the main L & D nurse noticed that a problem was showing up on the fetal-heart monitor and said to a second nurse, “The baby’s heart rate is low.” The two discussed whether the monitor was picking up the mother’s heartbeat or that of the fetus. Dr. Lipschitz joined in this quiet discussion and speculated that a problem was occurring with the monitor, not the baby.
“Must be mom’s,” Dr. Lipschitz said of the fetal heart rate. She then stepped out the door for about thirty seconds. The main L & D nurse wasn’t convinced. She seemed perplexed and asked the other nurse again if the reading could have been the baby’s. The other nurse didn’t answer. The L & D nurse then said, “These vitals are not reassuring. I don’t believe the baby’s heart rate should be this low. It’s in the eighties.”
[The eighties is below the acceptable range. A normal range for a fetus runs between 110 and 160 heartbeats per minute. This is much faster than the mother’s heart rate.]
“Must be mom’s,” the other nurse replied, repeating what Dr. Lipschitz had said. She spoke matter of factly.
“That doesn’t seem right,” the L & D nurse said. But then she dropped the matter when Dr. Lipschitz stepped back in and reiterated that the heart rate must have been the mother’s. Lipschitz considered it a nonissue.
Dr. Kilpatrick was not present during this exchange. In fact, she was rarely in the delivery suite. Ilene, Pattye, and I had humorously dubbed her “Doctor Dash Smoke” because of her habit of dashing into the room only to immediately dash out again, seemingly leaving a trail of smoke in her wake. Dr. Lipschitz was pretty much the physician managing the birth.
What the L & D nurse was trying to tell the resident was that she was detecting signs of bradycardia. Bradycardia signals that the baby is in distress and that the delivery team will have thirty minutes to get the baby out, usually by C-section. The L & D nurse was relying for this information on a fetal-heart monitor.
[A fetal-heart monitor, also known as an electronic fetal monitor or EFM, produces a chronological record of the birth both digitally and in paper form. Sort of like a ticker tape, these little machines spin out a continuous thin paper strip, also called “tracings,” that provides a read-out of a fetal heart rate. The tracings literally become the birth’s paper trail.]
The L & D nurse’s temporary status may have been a factor contributing to the casual dismissal of her warning of trouble to come. As I said earlier, she was a per diem–a temp worker. She had commuted to UCSF the morning of the previous day, Thursday, by public transportation, including a Greyhound Bus, from Sacramento ninety miles away. It probably took her a good three hours just to get to the door of the medical center. In any case, being an outsider meant that she had the advantage of being able to see UCSF’s protocols with fresh eyes. But being an outsider also was a disadvantage because, not being a regular employee, her concerns and input were easy for the everyday UCSF personnel to disregard.
Her race and body type probably also didn’t help. She was the only black person on an all-white delivery team. As an extension of this, she didn’t sound like them when she spoke. In his 2015 memoir Black Man in a White Coat, Dr. Damon Tweedy notes that the input of black medical professionals is often discounted. In addition, her body size differed from the typical one of those with whom she was working: she was amply zaftig, whereas everyone else was svelte. In sum, she didn’t look and sound like the others and so, in a crucial way, didn’t fit in. All told, in the eyes of the white UCSF staff members, she was this full-figured African-American lady just there for the day and so was someone they didn’t have to take seriously. How could she possibly know what she was talking about?
At approximately 3:03 a.m., Dr. Kilpatrick stepped into the delivery suite for less than a minute. Dr. Lipschitz told her that a problem was occurring with the heart monitor. Kilpatrick didn’t respond, and Lipschitz didn’t repeat herself. Kilpatrick obviously was in a hurry. Before dashing out, however, she unexpectedly shouted, “We’re going to have a baby!” This exclamation seemed so out of character that I did a double take. Then she was gone.
DESERTED IN THE DELIVERY ROOM:
FROM 3:04 TO 3:27 A.M.
Shortly after Dr. Kilpatrick’s departure, Ilene was found to be maximally dilated. Dr. Lipschitz, the L & D nurse, and another nurse set up a sterile area and adjusted the bed from a sleeping to a delivery arrangement. They positioned Ilene on her back with her hips and knees maximally flexed. At 3:10 a.m., the fetal heart monitor attachment was removed. These preparations concluded, a long pause ensued. Then, Dr. Lipschitz and the second nurse scattered to the hallway, leaving just Ilene, Pattye, the L & D nurse, and me.
By 3:15 a.m. the room had grown eerily quiet. Then the L & D nurse said, “I’m going to check on something,” and she scurried off too, leaving Ilene, Pattye, and me by ourselves. The three of us were left completely alone in the birth suite from approximately 3:15 to 3:27 a.m. Pattye speculated that the nurses and Dr. Lipschitz were trying to round up the pediatric team.
At Pattye’s suggestion, I exited the suite and jogged to the nurses’ station down the corridor. The clock on the wall there said 3:23 a.m.
“My wife’s ready to give birth,” I said. “Where are the doctors?” Behind the desk, a middle-aged blond nurse was standing and gazing at a computer screen. She replied, “Everyone’s giving birth. They’ll come when they can.” Then, giving me an encouraging wink before returning to her screen, she added, “They’ll get that baby out in no time.”
The fact that the hospital was overwhelmed with so many mothers giving birth at the same time indicated that it was short staffed. Not having enough personnel on hand explained why our own main L & D nurse had been brought in from Sacramento.
I left the nurses’ station and began looking for someone, anyone, to draw attention to our situation. I briefly wandered the corridors, specifically looking for Dr. Kilpatrick, Dr. Lipschitz, the L & D nurse, and the second nurse, but I didn’t find them. At 3:25 a.m., I stepped back into the suite, but still, the only ones occupying the room were Pattye and Ilene.
“You lie!” Pattye exclaimed when I repeated what the nurse had said to me.
“The nurse [at the desk] seemed to think this is going to be a very easy birth,” I said.
“I’m going down to the nurses’ station myself and make a big stink,” said Pattye, and she was just about to stomp down there and complain loudly when the L & D nurse and the other nurse returned. That was at 3:27 a.m. Shortly after, Dr. Lipschitz followed them in. She seemed remarkably composed.
A RELAXED ATMOSPHERE:
FROM 3:28 TO 3:41 A.M.
From the time Dr. Lipschitz re-entered the suit at approximately 3:28 a.m., she, the L & D nurse, and the second nurse appeared to be waiting for something to happen.
At 3:33 a.m., Dr. Kilpatrick came into the birth suite. She obviously heard what Lipschitz had said to her at 3:03 a.m. because the first thing she asked when she reappeared was, “There was a problem with the monitor?” A short and seemingly casual conversation followed with Dr. Lipschitz about whose heart rate the now-detached fetal monitor had been reading at 2:55 a.m. Given the low numbers, Dr. Kilpatrick quickly affirmed, “Yes, it must have been the mother’s.” The two doctors were completely at ease, exhibiting no sense of urgency. Dr. Kilpatrick took her time as she gowned and gloved up. I remember being impatient with her slowness.
Later, in her legal deposition, Dr. Kilpatrick reported that it was at 3:33 a.m. that she first became aware of a problem in the delivery suite.
Shortly after she came in, a specially dispatched pediatric team of seven or eight residents and medical students suddenly roared through the door with the self-importance of a college football squad taking the field. Why they were there or who summoned them I have no idea. This was at about 3:35 a.m. They wheeled with them a small table and used it to establish a makeshift station ten feet to the left of Ilene’s bed.
The residents and medical students were full of good cheer, acting as if the baby had already been born. The only female among them was a tall, young, and slender Asian woman with a long black ponytail. She was a senior resident physician, and she was more serious in bearing than the other team members. Later that day she came to speak with us, to express her concern. She was the only one of all the medical professionals present in the delivery suite that morning who did.
FROM 3:42-3:50 A.M.
The baby’s head began to crown (or was crowning) at around 3:41 a.m. This is the time when Dr. Kilpatrick went down on one knee between Ilene’s spread legs. It must have been about 3:42 a.m. that I saw her eyes pop wide open. I mean, they popped VERY WIDE OPEN. She was startled. Her attention suddenly became tightly focused, like that of a pilot when a plane suddenly shows signs of trouble in flight. She called to the nearby team, “There’s an abrasion on the baby’s head!” And then, almost immediately after, she shouted, “We’re going to use the vacuum!”
Dr. Lipschitz and the D & L nurse sprang into action and swiftly readied the gear. Standing again, Kilpatrick positioned the vacuum-extraction device and told Ilene to push, and she obeyed, and then came another order to push, and on the third try there was a great whoosh, liquid gushing, and with a flood of brownish amniotic fluid, the infant tumbled out headfirst.
At 3:44 a.m., the baby emerged gray, limp, and lifeless. Which is to say, he was born non-responsive. The fetal heart monitor evidently had been working correctly all along.
The umbilical cord was wrapped twice around the baby’s neck. Dr. Kilpatrick hurriedly clamped and cut the cord and handed the newborn to Dr. Lipschitz behind her, who whisked him over to the specially dispatched team where the residents were waiting. The team began attempting to resuscitate him.
Everyone’s activity seemed frantic, and everyone whose faces we could see had wide-open eyes and grim “Oh no!” expressions. All the while, the baby didn’t cry. He didn’t make any sound at all. For the first minute, most of what Ilene, Pattye, and I could see was the scrum of residents’ and students’ backs.
Dr. Kilpatrick was the first to regain her composure. She was standing near Ilene’s delivery bed, and she informed us, reassuringly, “The baby is merely stunned.” Contradicting this verbal assertion though were the apprehensive looks of others, whose faces were becoming more and more visible. Some of them had begun glancing back at us, to check our reaction. The tall Asian female with the ponytail and I exchanged glances, and I knew then from her expression that things were going very badly.
I wasn’t looking at Pattye, but I heard her mumble, “I can’t believe this is happening.”
The L & D nurse walked toward Ilene’s bed, moving so slowly that she seemed to advance frame by frame, as if all of this was the footage of a dream. As she approached, she held my gaze as though communicating something important. As with almost everyone else, her eyes were wide open and worried.
The notable exception was Dr. Kilpatrick, who spoke again, as calmly as before, saying, “This sort of thing happens all the time.”
We were all waiting for the baby to breathe. But how many minutes were going by? When he finally began breathing, everyone exhaled. It was cause for celebration. Still, the newborn wasn’t crying or making a sound loud enough to hear. I could tell from her demeanor that tall resident with the ponytail was convinced that a calamity was still unfolding. Not so the others. A little party had broken out: the residents were cheering and the students started high fiving. She quickly shushed them. She was the only one who seemed to realize that, by the time August started breathing, the brain damage had already been done.
“Show Mom and Dad the baby!” called Dr. Kilpatrick optimistically. She was still standing beside Ilene’s bed. A male resident next to the female resident complied, and he hoisted the little body high into the air, a trophy of medical rescue. The baby still looked dead.
IN THE ICN:
BENIOFF CHILDREN’S HOSPITAL
MARCH 5th–MARCH 15th
The newborn was whisked away to the Intensive Care Nursery (ICN) in the Benioff Children’s Hospital, which was housed in the same building. We were told that his chances of survival were 50-50.
On Monday, March 8, August opened his eyes, which at the time were—true to the Celtic side of his heritage—unequivocally green. Then, like the waters of a hundred-year flood, the lines, catheters, wires, and tubes over the subsequent days began receding from his body.
On Wednesday, a repeat EEG failed to capture more seizure activity, but it “did show flattened baseline.” By then Ilene and I had begun to hold and bathe the baby and change his diaper. By turns he was floppy and rigid. On Thursday Ilene spotted on a table next to August’s Isolette a nurse’s index card. On it were scrawled the phrases “serious neurologic dysfunction” and “poor prognosis.”
Eventually August stabilized, and the question changed from whether he would live to what his quality of life would be.
The hospital scheduled August for discharge on Monday, March 15, but before it could release him its representatives had to sit down with us. On the preceding Friday, March 12, at 11 a.m., we all assembled in a windowless conference room somewhere in the bowels of the enormous institution. This was the “family consultation” or “family consult,” one of a myriad of undertakings that the national accrediting organization— the JCAHO (formerly known as the Joint Commission on Accreditation of Healthcare Organizations, now simply the Joint Commission)—required of UCSF. In situations like ours, the JCAHO compelled the hospital to supply representatives to meet with the family.
Green as an Oregon forest, I’d had high expectations going in to the family consult. I’d anticpated something along the lines of a graduate seminar. I’d pictured a systematic debriefing characterized by effective communication. I’d imagined that reasonable people without any vested interest would attend. Hospital personnel would respond forthrightly to our inquiries. All of the facts of the case would be placed on the table. Everything would be out in the open. Rational decision-making would be conducted in an atmosphere of complete transparency and neutrality. The scientific method would be on display.
My expectations were quickly dashed. As the meeting was getting started, I sensed that something was amiss. The two parties directly involved with the labor and delivery, Dr. Kilpatrick and Dr. Lipschitz, did not attend. And no one from the all-female OB-GYN practice with which Ilene had undertaken her prenatal care was there either. We wanted desperately to speak with them, but we were told that their busy schedules precluded them from being present.
Instead, we met with five other hospital representatives, four male doctors, all wearing white lab coats, and a lone woman, a social worker. Two of the doctors we somewhat knew: we had seen the senior resident physician and the neurologist in the ICN. The room seemed inadequately lit. Throughout the meeting everyone talked quietly, as though speaking in an old-fashioned library. Ilene and I sat on one side of a long conference table, and the four physicians sat on the other. The social worker sat behind them.
We were told that August suffered from hypoxic ischemic encephalopathy or H.I.E. This was caused by a lack of blood and oxygen due to events unknown occurring prior to or during his delivery, bringing about very severe brain damage. Other diagnoses and labels for chronic and disabling conditions stemmed from H.I.E. They were cerebral palsy, spastic quadriplegia, profound mental retardation, cortical visual impairment, microcephaly, seizure disorder, osteopenia, and so forth.
We asked them why a pregnancy that had gone so well had concluded in such a horrific way? And we asked them how an experienced practitioner like Dr. Kilpatrick could have failed to detect a major problem in the delivery room? Ilene and I found ourselves in a dance with the four doctors in which each of them found creative ways to not answer our questions. They would not explain what happened. They would not account for what had gone wrong. They would not say anything beyond describing the baby’s current condition. All of which is to say, we encountered a wall of silence.
The social worker said, “Getting him started with physical and occupational therapy is crucial. I will get you a referral for the Golden Gate Regional Center’s Early Intervention Program.” Because of the baby’s extremely serious condition, she went on to say, he would qualify immediately for the Medi-Cal waiver, known in other states as the Medicaid waiver.
On some invisible signal, the meeting started winding down. One of the doctors leaned back and cradled his neck with his hands so that his elbows fanned up like wings. Looking like a bird in flight, he asked, “What are your plans?”
“Our plans?” I thought about the future for a moment. It seemed like we didn’t have one. I felt like a man on a scaffold with the noose around his neck and the executioner asking, “What are your plans?”
Finally I answered, “We plan to learn how to give our baby phenobarbital.”
As if simultaneously hearing the same cue, they all rose. The meeting was over. It had lasted forty-five minutes.
Ilene and I never saw or heard from these five individuals again, save for social worker, who secured the referral she had promised. Otherwise, this meeting was the last official contact we would have with UCSF regarding the birth, with two exceptions. One was the hospital’s patient satisfaction survey.
The other was Ilene’s postnatal visit with Dr. Kilpatrick roughly five weeks later. The most information she offered Ilene at the postpartum check about August’s birth was that it was “bad luck.” As a woman of science, Ilene didn’t find this explanation satisfying. Dr. Kilpatrick might as well have announced that our boy was a lusus naturae—a freak of nature.
LAZARUS IN A WHEELCHAIR
Pulled back from the brink of death, August became Lazarus in a wheelchair. During his fourteen years, he was nonverbal, incontinent, spastically paralyzed, and cortically blind. He could not sit in a chair the way a typically developing child would. He needed upper trunk support, so he had to be secured in his wheelchair with straps holding his shoulders and chest in place. Propped upright, his head lolled, falling forward and backward: the muscles in his neck never developed properly. He also drooled, and this occurred because the spasticity affecting his mouth prevented him from being able to swallow his saliva efficiently. When he was lying on the floor, he was unable to crawl, scoot around, hold himself up, roll over, or even touch his toes. If someone were to put him in one spot and leave him there, he would be found in the same location an hour later, give or take a few inches.
Despite his condition, August was a blithe spirit. I don’t know how to account for his happiness except to attribute it to the indomitable exuberance of youth. In all, he was a very nice person, and we had a good relationship.
LEGAL CASE (2001-2004):
HERSH & HERSH, A SAN FRANCISCO LAW FIRM
One of the take-away lessons Ilene and I learned from this experience is this: if a hospital makes a mistake during a birth, and the child will require a lifetime of care on account of it, costing hundreds of thousands if not millions of dollars, no one from the institution runs after the parents as they are exiting the doors with their new baby to hand them a check.
In the days and months following August’s birth, Ilene and I were reluctant to sue the doctors and UCSF because we didn’t want to be “litigious people.” However, when we eventually decided to bring a case, our main objective was to receive an answer to a single question: what happened to our son?
Over time we discovered that suing for this answer was naive because answers don’t pay an attorney’s bills. We also were unaware at the start of our journey that caring for August over his lifetime was going to cost in the hundreds of thousands, if not millions of dollars. People explained to us that we and our child had a hard road ahead and that we were suing not for ourselves, but on his behalf.
We went through three attorneys in our attempt to litigate the malpractice case against UCSF. The first one we thought too aggressive. The second we thought too meek. Like Goldilocks, we thought the third was “just right.” By then we were in the middle of 2001.
We were advised that Nancy Hersh, president of Hersh & Hersh, was very good. So, I met with her in the late afternoon of Tuesday, July 3rd, 2001. She impressed me, and she agreed to accept our case. The firm took it on a contingency basis; contingency means that a fee is payable only if there is a favorable result. She subsequently turned it over to Charles Kelly, at the time a junior member of the firm.
“Chuck,” as we called him then, had to mount a case in spite of M.I.C.R.A., California’s Medical Injury Compensation Reform Act of 1975. M.I.C.R.A. placed a cap on damage awards so draconian that it had driven most personal-injury attorneys from the field. The margin of error had simply grown too thin for them to stay in that business. (This is still the case with M.I.C.R.A. in that state: it is almost impossible for a medically injured patient to win a malpractice suit.) Of course, everyone hates lawyers — until they need one.
He additionally was tasked with successfully suing UCSF, which is the largest employer in the city and county of San Francisco and a powerful force in the region. It keeps a battery of lawyers full-time on its payroll and has the deepest of deep pockets.
OUTSIDE MEDICAL EXPERT:
DR. JEFFREY GREENSPOON
Chuck Kelly would rely entirely on the finding of an outside medical expert he hired to review August’s birth records. This outside expert was Dr. Jeffrey Greenspoon, a physician at the time located in Los Angeles. Kelly must have taken for granted that someone living four hundred miles to the south would not know the defendant (Kilpatrick, et al.) and so could remain impartial as he reviewed the records.
During this period, Ilene and I were unfamiliar with Dr. Greenspoon’s background, and we didn’t question Kelly’s judgment. We believed that Kelly must know what he was doing. Moreover, we just assumed that, because he had a strong interest in winning the case, he would seek out the best possible medical expert.
Greenspoon received the records of August’s birth in the middle of July, 2001. Our attorney did not hear anything definitive back from him until December of 2002, at which time Greenspoon reported that malpractice most definitely had occurred.
Consequently, Kelly went ahead and filed the malpractice suit with the court, and a trial date was set for November 8, 2004. Kelly next flew to Jacksonville to prepare Ilene and me for legal depositions, which took place in the middle of January, 2003.
But then, in the late spring of 2004, Greenspoon reneged. He reported to Kelly that he had reviewed August’s birth records a second time and found a mistake. He’d initially thought the time of the birth to be 4:10 a.m. when in fact it had been 3:44 a.m. The time of 4:10 a.m. would have been outside the thirty-minute window opening at 3:33 a.m. However, because Dr. Kilpatrick had discovered bradycardia at 3:33 a.m. and delivered the baby by 3:44 a.m., he concluded that she had done nothing wrong and that UCSF was not at fault.
Kelly’s letter to us, dated June 28, 2004, informed us that Hersh & Hersh was no longer interested in litigating our case. Greenspoon had “re-reviewed the heart rate tracing [presumably for 2:55 a.m.] and believes that the heart rate seen on the heart monitor tracing is Ilene’s and not August’s.”
Kelly’s letter went on: Dr. Kilpatrick and Dr. Lipschitz discovered at 3:33 a.m. that August was in trouble, and they got him out by 3:44 a.m. They delivered him in eleven minutes, and that span of time was within the thirty-minute window, so the hospital was not at fault. The following sentence delivered the coup de grâce: “With all of the evidence establishing that August was delivered within 10 minutes [sic] of the bradycardia, we cannot establish that UCSF was negligent in its care and treatment of you and August.”
The last time we heard from Kelly was on August 24, 2004, when we received an unusually terse letter from him in response to our follow up questions. He obviously didn’t want to deal with us anymore.
Nancy Hersh and her protégée Charles Kelly represented our third and last attempt to seek redress and uncover information through the courts. The seven-year statute of limitations for birth-injury cases was beginning to run out, and because we were now living on the other side of the continent, we concluded that it would be very hard to locate a fourth attorney in San Francisco from such a distance. So, we gave up. After that, with regard to the legal realm, the rest was silence. Silence, that is, except for the holiday cards that arrived every winter for the next seven years from the law firm of Hersh & Hersh.
WHITE WALL OF SILENCE
Dr. Greenspoon’s assessment didn’t seem right to Ilene and me, but then, who were we to question it? We weren’t doctors, we didn’t know, so we accepted the legitimacy of what the outside medical expert concluded. We were deeply disappointed by the news, but we just didn’t question it. Raising two small children, one of them medically high maintenance, did not give us time to think further about the matter.
After August died in October of 2013, I found that I had a little time on my hands, so I started poking around on the Internet in an effort to begin piecing together the narrative of his life. By this time it had become remarkably easy to track down information on the Internet. I discovered that, like Dr. Kilpatrick, Greenspoon was a perinatologist. I also learned that, in the middle of 2001, when Kelly hired him, he was working at another medical school associated with UC: he was practicing medicine and teaching at the University of California, Los Angeles (UCLA).
The facts of his subspecialty and his affiliation with UC raised questions. First, would a UC employee be willing to find UC at fault? (Along with Kilpatrick, UC was one of the defendants named in our malpractice suit.)
And second, in the relatively small field of perinatology connected with medical schools, especially ones in the UC system, wouldn’t he have had to be aware of her? Wouldn’t he have crossed paths with her at academic conferences? And wouldn’t he have served as a peer reviewer on at least one of her many scholarly articles? Long established and well published, he himself was a leading figure in the field of perinatology. Kilpatrick in 2006 would join the editorial board of the same journal that had published many of the scholarly articles Greenspoon produced over the course of his career, the American Journal of Obstetrics and Gynecology. Even if he didn’t know Kilpatrick first hand, he had to have known of her. After all, he was a respected elder figure in a small field, and she was a rising star.
I came to strongly suspect that Greenspoon in 2001 probably had known Kilpatrick personally and so should not have agreed to serve as an independent medical expert.
Due to these findings, I began to question his and Dr. Kilpatrick’s accounts. Was it just a coincidence that his synchronized exactly with the one she had given in her legal deposition?
Dr. Kilpatrick had said under oath in her deposition that she first became aware of a problem at 3:33 a.m. I knew that this time signature wasn’t accurate. She had been informed at 3:03 a.m. about an irregularity with the baby’s heart rate. And I knew that she finally understood the severity of the problem at 3:42 a.m. How had I known? Because I was in the room where it happened, to alter a lyric from the musical Hamilton. As I said before, I saw the look on her face, the expression of extreme concern when she suddenly realized that the birth was going very badly.
Greenspoon’s and Kilpatrick’s accounts were in lockstep except on one key point: Kilpatrick had not mentioned in her legal deposition that Dr. Lipschitz informed her at 3:03 a.m. that there had been a problem with the fetal heart monitor at 2:55 a.m. Why, then, had Greenspoon gone out of his way to insist that the heart monitor at 2:55 a.m. was picking up the mother’s heart beat and not August’s? He introduced the subject apropos of nothing.
Crucially, our lawyer Chuck Kelly had told us many months previously that the hospital had been unable to produce the fetal heart monitor tracings (the birth’s paper trail), that this evidence had gone missing. And yet, judging by the fact that Greenspoon had gratuitously interpreted it, he somehow must have come into possession of the tracings. How though could this have happened?
Be that as it may, Greenspoon used the tracings to validate the opinion Kilpatrick stated at 3:33 a.m. regarding the heart monitor reading: “Yes, it must have been the mother’s.” And yet, with the benefit of twenty-twenty hindsight, Greenspoon should have been able to see that she had been wrong to corroborate the misreading that Lipschitz made at 2:55 a.m. when the latter said the heartbeat “must be mom’s.” Given the catastrophic birth occurring forty-nine minutes later, the odds were strong that the monitor had indeed been picking up the baby’s heartbeat. Even so, he had insisted that Kilpatrick’s confirmation of Lipschitz’s misreading was correct: Greenspoon agreed with Kilpatrick that Lipschitz’s call at 2:55 a.m. had been the right one, as though his wrong call could make the first two wrong calls right. All of which is to say, Lipschitz’s “must be mom’s” had swelled into a self-echoing, self-certifying chorus. And this had been the chorus that prevailed.
Not to put too fine a point on it, Dr. Greenspoon had covered up a colleague’s error. Before my son’s tragic encounter with the health care system, I had never heard the phrase “white wall of silence.” But I now believe that this must have been the wall our family ran up against. August’s case had gone nowhere because of the white wall of silence, of physicians closing ranks to defend one of their own.
KILPATRICK COULD NOT BE SUED
Our attorney neither suspected anything incongruous in Greenspoon’s finding nor broached seeking a second opinion–of locating another outside expert to review the records. Instead, he unceremoniously dumped us as clients.
In the final analysis, the fact that Kelly picked one UC employee to review the case of another UC employee, someone Greenspoon probably personally knew, indicates a profound level of incompetence.
And yet, one factor remains that overrides Kelly’s incompetence. Dr. Kilpatrick, a nationally recognized expert in her field of perinatology, probably was un-sueable anyway. It was going to be extremely difficult, nay, impossible, to find a medical expert willing to testify against her in court. Dr. Kilpatrick had a formidable reputation. Even so, Kelly should have found someone from outside the UC system, and probably from outside the state of California, to review the birth records. But, alas!
I gained a new understanding of what Dr. Kilpatrick had meant when she told Ilene at her six-week postpartum check that August’s terrible birth was “bad luck.” Yes, indeed; it WAS bad luck. It was bad luck for Ilene to have given birth under the supervision of a renowned perinatologist who was un-sueable.
The case continues to live on the internet. Go here: August David Chazan-Gabbard et. al vs. University of California Medical Center et. al
After August died in 2013, I did some sleuthing with regard to Dr. Greenspoon and discovered that he came with a provocative back story. In 1995, he wrote a public letter to the pro-life Congressman Henry Hyde in which he passionately defended the controversial procedure known in medical circles as intact dilation and evacuation, or, what pro-life activists were calling partial-birth abortion. Greenspoon had stepped forward to defend a deceased colleague at Cedars Sinai Medical Center who had performed the procedure hundreds of times. In the mid 1990s, Greenspoon served as the director of a high-risk obstetric unit at Cedars Sinai in Los Angeles, the same medical center, coincidentally, where Dr. Kilpatrick is currently teaching and practicing.
Greenspoon wrote, “[a] pregnancy that is desired and planned is the foundation for the next generation of productive, healthy Americans . . . . The burden of raising one or two abnormal children is realistically unbearable.” His expertise on the subject of “abnormal” children, he indicated, came from serving as a speaker for a national Spina Bifida association.
In 2012 phone remarks made in an interview with Tucker Carlson (very far from my favorite commentator), Greenspoon stated that he approved of eliminating “babies who don’t have much of a viable life.” He went on to complain that it was unfortunate that the term eugenics had “somehow” taken on a pejorative meaning over time.
Here is a link to a Feb. 21, 2012, article in Slate titled “Eugenics, American Style” speaking about both Greenspoon’s public letter and Carlson’s interview; Greenspoon comes up at the tail end of the piece.
Go here: “Eugenics, American Style”
Greenspoon’s wording in his 1995 public letter and in his 2012 interview is infelicitous for several reasons, but I will focus on just one aspect. When it came to families he claimed he cared about, he certainly didn’t show any concern for ours. His reading of August’s birth records contributed mightily to increasing my family’s “burden of raising” a significantly impaired, or, in his phrasing, “abnormal” child. It made my and my wife’s task “realistically unbearable.” His reading of the birth records effectively thwarted the possibility winning a settlement, something our family desperately needed in order to care for our exorbitantly expensive child. We nearly went bankrupt as a result.
Greenspoon is currently practicing medicine at CoxHealth in Springfield, Missouri.
STORY MOVES TO JACKSONVILLE (2001)
August moved with his family to Jacksonville in 2001 so that I could take a tenure-line teaching position at the University of North Florida. Our son’s life was relatively peaceful there, where he attended (click here:) the Mt. Herman Exceptional Student Center during the day. His health was extremely good during this period, and several years in a row he received a perfect attendance award. After school and during holiday breaks and the summer, he went to (click here:) the DLC Nurse & Learn, where I now sit on the board of directors. (To see video and pictures of August, click here: A Boy Named August). His health was so good that he won perfect attendance records year after year at Mt. Herman.
STORY ENDS (2013):
MEDTRONIC BACLOFEN PUMP
On July 8th, 2010, a Medtronic Baclofen pump was implanted into him, and over the next three years this device precipitated a downward spiral that ended in his passing away. The operation to implant it took place at Wolfson Children’s Hospital.
The Medtronic Baclofen pump was supposed to decrease the spasticity associated with August’s cerebral palsy. Since 2010, this device has undergone numerous FDA class 1 recalls due to the fatalities linked with it.
The Medtronic Baclofen pump was implanted by Dr. Hector James. In 2003, Dr. James was recruited to run the first pediatric neurosurgery program in northeast Florida. A multimillion-dollar endowment made founding it possible. The internationally recognized Dr. James, originally from Argentina, had been practicing medicine for four decades, much of that time at a teaching hospital associated with the University of California. Having recently retired, he had accepted an offer from the medical school at the University of Florida to come open a clinic at Wolfson Hospital.
He headed to northeast Florida to begin building a program, recruiting other pediatric neurosurgeons from around the nation. His name and reputation were the attraction. And this is how the area’s first Medtronic implantable infusion pump program came into existence.
I have heard through the grapevine, but haven’t been able to verify, that Dr. James has retired and that Wolfson Hospital no longer implants Baclofen pumps.
Dr. Louise Spierre is one of the doctors Dr. James recruited to move to Jacksonville, and she was August’s physiatrist. Oral Baclofen and Botox injections under her direction had been doing the job of controlling August’s spasticity quite nicely. But after a year or so of this regimen, she changed her tune and started strongly advocating that we have a Medtronic Baclofen pump implanted. She told me that the pump was reasonably safe, almost as safe as riding in an airplane.
At one point I met with the rep from Medtronic. He looked at me straight in the eye and assured me that the pump was a safe product. If Ilene and I decided to go forward with it, he went on, he personally would accompany us “on each step of the journey.” Everything would go well–he would “make certain.” He would “see to it.” We shook hands.
At the time I didn’t know that these reps for medical device companies make very comfortable six-figure salaries. They often don’t have any medical training, but they still stand beside the surgeon in the operating room and tell him or her what to do.
I also wasn’t aware that the hospital made a good profit on pumps due to an astonishingly high mark-up over what it paid Medtronic for them.
Now retired, Dr. Stephen Lazoff, August’s pediatrician, advised us against implanting the Medtronic Baclofen pump. Leading up to July of 2010, he strenuously and passionately warned us about the complications that could ensue from implanting it: the problems to expect, he told us, were infection and problems in the back. “I have seen so much go wrong,” he said. So, I cannot say that we weren’t informed of the danger beforehand. But Dr. Lazoff seemed a little bit “old school” to us, so we didn’t take his advice as seriously as we should have.
Ilene and I pondered the move deeply. Because we wanted the best for our child, and because we did not want to leave any stone unturned, we finally agreed to follow Dr. Spierre’s recommendation, and so the pump was implanted.
The Medtronic Baclofen pump was a disaster from the very start. For the next three years, adverse events kept piling up. The first pump became infected. After it was removed and another put in, dystonia took hold. When things went south, the Medtronic rep bailed on us. We never saw him. Off and on for three years, August was stoved up with dystonia. This video shows what the condition looked like. Warning: it is difficult to watch.
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