Opening Statement in Medical Malpractice Case

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May it please the court, good morning ladies and gentlemen of the jury, this case is about a baby by the name of Stephen Charles MontMarquette. This case is also about the physician who managed the pregnancy. It’s about a physician who held himself out as a high risk specialist in the field of obstetrics. This case and the evidence will establish this physician who held himself out as a specialist in high-risk obstetrics was absolutely indifferent to the well-being of this baby boy, Stephen Charles MontMarquette. This case is also about the profound loss the Mont-Marquette family unit has sustained as a result of Dr. Borders’s negligence.

On July 3, 1996, Stephen Charles MontMarquette was born at Silver Cross Hospital. A family of 3 was about to become a family of 4. On a day that should have been one of the happiest days of their married life together, it turned out to be an absolute nightmare for Mr. and Mrs. MontMarquette because of Dr. Borders’s absolute indifference towards the well-being of this child. We’ll establish that Dr. Borders had the knowledge, the opportunity, and the duty to prevent this occurrence, to prevent the stillbirth and death of Stephen Charles MontMarquette.

The evidence in this case is going to focus on a 12-day period from June 21, 1996, to July 2, 1996, the day before Stephen Charles MontMarquette was born. During this 12-day period we’ll establish there was negligence, professional negligence, by Dr. Borders in this case. During that particular point in time during that 12-day period from the perspective of Mr. and Mrs. MontMarquette everything was progressing fine. This was a high-risk pregnancy. She was a gestational diabetic. Her diabetes was under control. It was under very good control. The evidence will establish during the month of June 1996, the baby was near term. The baby’s 36, 37 weeks gestation at this point and everything is going great. The doctor advised Mrs. MontMarquette this baby will be delivered towards the tail end of July 1996. From the patients perspective everything is fine. The diabetes is under control. We’re expecting a baby at the end of the month. There was no communication voiced to the patient that there’s a problem with any aspect of the pregnancy.

We’ll establish there was a period of 12 days where there was absolutely no physician involvement in the management of this pregnancy. We’ll establish the last time Dr. Borders evaluated this fetus was June 21, 1996. On that date it was a prenatal visit and an NST, a fetal monitor machine was hooked up to Mrs. MontMarquette’s abdomen. We’ll show that on that day this NST produced a worrisome test result. The NST monitors the baby’s heart rate. At that point in time there was a worrisome point of concern, a suspicion, a questionable issue with the baby’s heart rate. Notwithstanding that worrisome test result, there was no further physician involvement. There was no ultrasound. There was no hospitalization. The next time Dr. Borders saw this patient was in Silver Cross Hospital after an ultrasound didn’t detect any fetal heart tones. In short ladies and gentlemen, there was insufficient fetal surveillance, especially for a pregnancy that is high risk because of her gestational diabetes. There was no follow up testing from June 21 to July 3, 1996. There was no examination by Dr. Borders during this period of time. This was the critical time in Mrs. MontMarquette’s pregnancy. Her first child, Nicole, was born at 36 weeks gestation. This is the period of time diabetics are known to deliver babies. They deliver earlier because they have bigger babies and the medical evidence in that will be uncontroverted.

This trial is about holding Dr. Borders accountable under our system of justice for his professional negligence. In short, this trial is about righting the wrong. It was wrong for Dr. Borders to be indifferent to the human life of her baby in her womb, Stephen Charles MontMarquette.

Now, serving as a juror in a medical negligence case you will get an up close and personal view in the field of obstetrics. Obstetrics is the branch of medicine dealing with the management of pregnancies. You’re going to get a crash course in obstetrics medicine. You will get a crash course and an up-close and personal view of the management of the gestation of diabetic pregnancy, and you will learn a lot. But while you’re receiving and digesting the evidence in this case there’s a lot of terms you will have to be informed about so the evidence and testimony make sense.

As I said earlier, obstetrics is dealing with the branch of medicine in management of pregnancy. Everybody knows that, but I’m not sure. Gestational diabetes, that’s simply when the mother gets diabetes as a consequence of the pregnancy. The gestational diabetes doesn’t transfer over into the fetus, and the baby isn’t born diabetic. It’s maternal, and it goes away after the child is delivered. That’s what makes this pregnancy a high-risk pregnancy. It’s because of this fact that Barbara MontMarquette sought out not just an obstetrician, but an obstetrics specialist in high-risk pregnancies.

You are going to hear a lot about the term NST. It stands for non-stress test. That is done with the fetal monitor machine. It looks like a belt and they call it a transducer that goes on the woman’s abdomen with a doppler ultrasound. The baby’s heart rate is monitored. It’s a wonderful tool of modern medicine if used correctly. It’s because it can monitor the baby’s heart rate on a beat-to-beat basis and all this is — it looks like a hockey puck and you strap the seatbelt on the woman’s abdomen and it prints out a strip. We’ll show you strips and why this particular strip on June 21 was not assuring. It was worrisome. It was a point of interest, was suspicious, whatever the terms are going to be, there was a problem with it.

You are going to hear about a late deceleration. Deceleration means to go down. You drive a car, accelerate it, and it goes up, decelerate it by taking the foot off the gas. The same with the strip when the baby’s moving. A normal NST test should mean the baby’s heart rate increases when the baby is moving in the woman’s abdomen. The heart rate of the fetus goes up. That’s reassuring. That’s a good finding as far as the fetal health is concerned. Late deceleration, the heart rate isn’t going up it’s going down.

We’re going to establish on June 21, 1996, this heart rate went down when Mrs. MontMarquette felt fetal movement. It isn’t speculation what fetal movement is. During an NST the woman has a device, and she hits a button every time she feels movement. The physician can track the baby’s heart rate and compare it against the fetal moment. When she hits that button there should be like a mountain on the strip. In this case it was a V on the strip. The baby’s heart rate went down.

You will hear a lot about reactive NST and a non-reactive NST amount. There’s medical definitions for these terms. A reactive strip is good for the baby. A non-reactive strip is bad for the baby. And you will hear a lot more details. It’s not that simple, but this is kind of the framework in which you will view the evidence. You’re going to hear that when you’re managing a diabetic pregnancy that there should be a reactive strip. The baby’s heart rate should go up for at least 15 seconds. It should stay at a beat rate of 15 beats more than the baseline. If the baseline in the baby’s heart rate is 150, that heart rate should stay in the neighborhood of 165 or higher for 15 seconds. And then if the baby’s heart rate comes down after fetal movement that’s fine. That’s called the reactive strip. That’s assuring. That’s good news for the well-being of this near-term baby. And the doctors will explain what’s a reactive trip and non-reactive strip. You will hear the term, term pregnancy. There’s a misconception with that. A term pregnancy is a pregnancy that went between 37 and 41 weeks. It’s not 40 weeks right on the head. A term pregnancy is considered 37 weeks to 41 weeks. Keep that in mind when you hear what a term pregnancy means, the gestational age. Gestational age is the estimated age of a fetus expressed in weeks the mother is pregnant. Gestation means from conception to delivery. Stephen Charles MontMarquette was born at 37.1 weeks gestation. That was his age in the womb. That was the number of weeks he was in his mother’s womb. The uterus, and everyone knows this, it’s an organ that allows females to reproduce and allows the pregnancy to progress and continue.

We’re going to establish that Dr. Borders needed to watch this pregnancy more closely than he did. Why did he need to watch the pregnancy? What’s the evidence going to be in that regard? Number one, her first child was born at 36 weeks gestation because a contributing factor to her delivery — 36 via emergency C-section is a contributing factor. There was a worrisome NST by her prior obstetrician. Her prior obstetrician was located in Elgin, Illinois. It was not Dr. Borders. So there was a worrisome test result at 36 weeks, and that was a factor in the delivery of that child. The strip of 6-21-96 is a worrisome strip. When you get a great reactive strip and the heart rate goes up, that’s good. When you have a bad strip like this on June 21, it requires closer fetal surveillance. We’ll show that diabetics have bigger babies. He knew before this child was delivered that she was going to have a big baby. He’s taking measurements during the course of the pregnancy, and he’s explaining the measurements and what they mean. And our experts will explain that. There was no doubt this was going to be a bigger baby. They should be on the lookout for that and watch this pregnancy close. The baby was born 8 pounds 5 ounces, 21 inches long.

We’ll hear that on June 21, 1996, Mrs. Mont-Marquette had cramping. She had abdominal cramping. It could have been a host of things. She also has uterine contractions at that time. These are the types of facts that warrant close surveillance. You will hear something that is interesting. She’s a gestational diabetic, and as the baby and placenta gets bigger it increases the amount of insulin that the mother is required to take to keep the pregnancy going along. In this case, from June 15, 1996, the visit prior on June 21, Dr. Borders decreased the amounts of insulin. Again, these are facts that warrant fetal surveillance, which we’ll establish.

You will hear a lot about mortality rate, and you will hear that in this day and age in 1996 the mortality or the death rate for a gestational insulin diabetic like Barbara’s was essentially the same for a normal OB pregnancy and delivery. In other words, yeah, it’s high risk and you have to watch the pregnancy, but the death rate is not 50 percent of children who are born to gestational diabetic mothers. You will hear a lot of about those statistics, and there will be absolute consensus to the standard of care. Standard of care is what a reasonable obstetrician specializing in this area will do that the standard of care requires. It required close, tight, fetal surveillance.

Now, let’s talk a little bit about July 2, 1996, the day before Barbara delivered. You’re going to hear evidence that was a Tuesday, and on June 21 she went in, and she had what we contend is a abnormal NST test. That wasn’t voiced to her, but it was abnormal and a follow up appointment was given for Friday, June 28. At that time Barbara wanted to reschedule the appointment from Friday June 28 to Saturday June 29. Her husband was a printer at the time for a company in Elk Grove Village. They had a daughter. She wanted to reschedule the appointment to Saturday so that Steve can watch Nicole so she can go to the obstetrician office in peace and quiet, alone. On June 28, 1996, Barbara called the office and asked is it okay if I come in the next day? They said sure. June 29 is a Saturday, and this doctor had office hours on that Saturday. On June 29, 1996, Barbara presents herself at Dr. Borders’s office. She is not seen by Dr. Borders for reasons unknown to her. She is seen by Dr. Borders’s head nurse, and the head nurse takes her weight, blood pressure, and says come back July 2, Tuesday. She leaves the office thinking the pregnancy is fine. The nurse did a hand held doppler, not a full blown strip, and off she went. On July 2, 1996, the weekend passes, and we are on Tuesday, on July 2, 1996. She receives a call from Dr. Borders’s office left on her answering machine. This is Dr. Borders’s office. Dr. Borders is unavailable because of an emergency. We have to cancel your appointment and reschedule it. So she does not show up for her appointment.

Dr. Borders, you will hear is a sole practitioner. He does not have partners at that time. July 2, she’s thinking I had an appointment. He’s doing a delivery probably, and that was it for July 2. The morning of July 2, — her husband, Steve got home about 10:00. He’s a printer in Elk Grove Village and after dinner Barbara noticed a decrease in fetal moment. The baby was not moving as much. But this baby had a tendency to sleep after dinner. She didn’t think this was a medical emergency. The baby is not due for three or four weeks down the road. At that point in time she goes to bed. She even feels the baby moving. It’s not moving as much but she guesses it’s crunch time and the baby is getting bigger and that was the way it was with her first pregnancy. She is not alarmed.

The morning of July 3, 1996, there was a decrease, a further decrease in the baby’s movement or activity, and they decide to call the hospital. They did not call Dr. Borders that morning. They thought in their mind that Dr. Borders was unavailable due to the emergency based on the message they received the day before saying he couldn’t make the appointment because he’s out-of-town on emergency. Silver Cross Hospital says come in. They go on into the hospital, and an ultrasound is done and no fetal heart tones are detected. Dr. Borders walks in. What are you doing here? I thought you were unavailable due to emergency. At that point in time they eventually learned the bad news and Stephen Charles MontMarquette was born at about 6:15 on the evening of July 3, 1996.

Dr. Borders will contend that this child’s death was a cord accident, that the baby’s umbilical cord was wrapped so tightly not around the neck, around the baby’s foot, that the cord was wrapped so tightly it cut off blood flow someplace and essentially that was the only cause of death in this case, and his negligence and his lack of surveillance of this fetus had absolutely nothing to do with the outcome here.

Our position is steps should have been taken starting with June 21, 1996. If steps were taken, testing was done, monitoring was done, Stephen MontMarquette would have been born well before July 3, 1996. He would have been born somewhere in that 12-day period with tight close surveillance. But it wasn’t done in this case. We’ll show why this baby should have been out and the pregnancy not have been allowed to progress to July 3, 1996. Not just allowed to not progress that long, but not allowed to progress without any physician involvement, without any testing, without reassurance. You will hear that term a lot, reassurance; non-reassuring signs.

This is a full term fetus here, a big baby. In this case, just so you have a rough idea as to what to expect, showing the jury plaintiff’s exhibit number one, which is an enlargement of the June 21, 1996, strip, when the machine is hooked up there’s a print out available, and it has the patient’s name and it has a strip. The top line is the baby’s heart rate. The bottom line is the mother’s uterine contractions. This is the baby’s beat, heart rate for about a 20 or 25-minute period of time. You will hear that on prior occasions these strips only lasted 10 or 15 minutes. This one was 20 to 25 minutes. The lengths certainly we are not critical of. This strip was recorded as a reactive strip. That’s the R that was circled by Dr. Borders. He felt this baby was doing good. You will hear about these little notches, FM. It’s hard to see, the FM means mom’s anticipated hitting the button, and this is fetal movement. 89203 panel FM, FM. This fetal movement is going down. This heart rate is going down. It should go up, and not E. It’s just that it should not only go up, it shouldn’t stay the same, either. It should increase. Show me a good strip here. Show me something that is considered a reactive strip.

Our belief is that this is a non-reactive strip, not reassuring. If you look at the Vs, there’s 1, 2, 3, 4, on this half of the panel alone. These should be mountains, they shouldn’t be Vs. They shouldn’t even be a straight line. That’s not reassuring either, unless it goes up at least 15 beats above baseline. And the baseline here, you will see is somewhere in the 150, 160 range. So, the baseline or average, you take a straight line it should go up for 15 seconds twice, two separate episodes during the span of this 20, 25-minute strip. This baby’s heart rate did the exact opposite. It went down. Compare this June 21 strip with the strip prior, six days prior, plaintiff’s exhibit number two. You will hear, according to testimony by our medical expert, a board certified obstetrician, that this is a reactive strip. This is good. We are not critical of Dr. Borders for his interpretation of this strip. But you will see these, this mountain, this 89182 panel. 89181, 89180, that’s a nice strip. That means you have a mountain in connection with the fetal movement. You have another mountain in connection with the fetal movement. You have two and for good measure you have a third mountain in connection, not just a little spike, this heart rate is up there. These are one-minute intervals in time. If you look at 89102, that heart rate is up there for 30 seconds above baseline. That’s a good, reassuring strip. You’ll see a lot about this and see it further. But when you compare what we consider a good strip with a bad strip, you will see this. The mountains and Vs don’t lie.

What’s their defense? Their defense says that she did not, flat out did not show up on June 29, 1996. They’re not particularly contending there was not an appointment. They are saying that she did not show up for that day’s visit and that from June 21 to July 2, yeah, there was prenatal care, that’s because she didn’t show up at the appointed time on June 29, 1996. And this is a credibility issue. When you’re evaluating the evidence you are the judges of the credibility. And in this case you will have to compare the mother’s credibility with Dr. Borders’s credibility. Keep that in mind when you’re viewing the evidence. Keep also in mind who is the doctor here, who is the high-risk specialist — the MontMarquette’s or Dr. Borders? You will hear Steve MontMarquette. He has a blue-collar job. He gets his fingernails dirty. He was a printer for 30 years in Elk Grove Village. These are high school level educated people, no medical training whatsoever. They are expecting the birth of their firstborn son. They determined and wanted to know the sex. They knew his name. So keep in mind a couple things, credibility. We welcome the issue of credibility. Two, who knew better? Who was the specialist? Who knew better? Those are issues you will have to decide for yourself. There’s going to be a lot of mud-slinging here. In a few minutes you will hear the start of it and that’s fine. We welcome that.

Now, there’s going to be some light moments, probably mispronounced words or two, or dropping an exhibit, but we’re talking about human life here, something extremely precious. At the end of the case I will ask you to evaluate the evidence, find Dr. Borders was negligent in his care, and I’m going to ask you to assign a monetary value to the loss sustained by this family. You will hear Nicole who was two at the time, since this pregnancy with Stephen they have had a daughter by the name of Christina. You will hear about the profound loss. But you will, as a collective body, have to assign a monetary value to the loss. You will not get it from the witness stand or a piece of paper or some formula. As a collective body you will have to decide the value of human life in this case.

This case is not that complicated. It’s a straightforward case where they did not watch this pregnancy close enough. For whatever reason a mistake happened. Did Dr. Borders do this intentionally? Absolutely not, but under our system of justice if he was professionally negligent there must be an award in favor of those individuals who lost a loved one, and they certainly loved this child. You’ll hear about the preparations they made for this child. It’s a simple case. Don’t let the wool get pulled over your eyes. Step back once in a while. What about credibility? Who knew better? Are they trying to pull the wool over our eyes? Keep those things in mind as you’re receiving this evidence.

I thank you for your attention, and I’m sure you will be just as attentive with Mr. Stiff’s argument. The watch word for a jury is hurry up and wait. There’s not a lot of continuous high drama like on TV. We are here to do serious business, and we’ll be mindful of your time, but occasionally we can’t help but to go out in the hall to argue a point outside your presence.

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