Defense Expert Deposition (Birth Injury)

This is a sample of a deposition of a defense expert in a birth injury case.

For Videos of actual depositions in medical malpractice cases, check out our Depositions Channel on YouTube. See also Med Mal Discovery and Trial Materials.


Civil Division

LAURA A. MONGAN, et al.,

Plaintiffs, v. Case No. 24-C-20-008762

DAVIS HEALTHCARE, INC., et al., Defendants.

June 9, 2020
11:09 a.m.
811 Ninth Street
Suite 960
Raleigh, North Carolina


1 South Street, 24th Floor
Baltimore, Maryland 21202
Phone: (410) 553-6000

Hurd & Bartlow, LLP

111 Calvert Street, 20th Floor
Baltimore, Maryland 21202
Phone: (410) 567-5309


FRANCIS EVANS, M.D., having been first duly sworn, was examined and testified before me as follows:

Explaining Rules of Deposition to Witness


Q. Could you please state your name and address.

A. John Nicholas Evans. The address is 7780 Brier Creek Pkwy, Raleigh North Carolina 27513.

Q. Is that your business address or home address?

A. Home address.

Q. Doctor, my name is Ron Miller. We met briefly before your deposition. I represent the Mongan family in an action in Baltimore City. The reason you are here today for a deposition is that you’ve been identified as a medical doctor who will render opinions in this birth injury case. So the purpose of your deposition today is to find out all the opinions that you have and all the factual bases for your opinions. But before we begin, I just want to go over a few ground rules for you. Have you had your deposition taken before?

A. Yes.

Q. Okay. Then I’ll be very brief. If I ask you a question that you don’t understand or it’s confusing, tell me right away, and I’ll try to rephrase the question, because if you don’t, we will assume that you’ve understood the question, and the answer that you gave is the answer that you intended to give. Also, the court reporter is here to take down my questions and your answers. I’ll just ask if you can wait until I finish asking my question before you start to answer — I know in every day the conversation, people interrupt each other all the time. But to get an accurate recording of my question and your answer, I just ask that you be a little patient, and I’ll try not to interrupt you as long as you don’t go too far from my question that I originally asked. Also, if you need to take a break at any time, can you just let us know? And we’ll be glad to do that.

A. Yes.

Deposition Subpoena and Documents Reviewed

Q. Doctor, before we get into your opinions, the basis for your opinions, I want to go over some preliminary matters. Pursuant to the Notice of Deposition that I filed in this case, we asked you to bring a list of items and documents.

And I’ll ask: Have you brought any items and documents with respect to that Notice of Deposition? It’s been marked as Exhibit Number 1. And I’ll hand it to you now just for your own reference. (Exhibit Number 1 was identified.)

A. Yes, I brought some items and documents.

Q. Okay. Could you list them for me so we can have an accurate record of what you have.

A. Sure, I have the hospital records.

Q. Davis?

A. Davis Hospital records. I have the Johns Hopkins records. I have the radiology studies from Davis.

Q. Are those the actual studies themselves or simply the reports from the radiologist?

A. Studies.

Q. Studies.

A. I have the radiology studies from Johns Hopkins, and I have the echo from Davis, the actual echo, which I looked at all. I have depositions of Alexander, Dickens, and Curtis.


Q. So as we sit here today, you do not intend to come into court and say that you find that any medical literature, article, textbook reliable or authoritative in the field of medicine for which we’re involved in this case, and you don’t intend to rely upon any of those articles; is that correct?

A. Correct.

Q. Now, did you bring your file with you that would contain correspondences to and from counsel and your bills?

A. I don’t think I’ve sent a bill. I have all — I don’t know that I brought the correspondences. I have one — some of them.


Q. If you could just pull them out for me, I’d appreciate it.

Background and CV

Q. Do you have any publications — I think you did have some publications on your CV; is that correct, doctor?

A. Yeah, about 150.

Q. I looked through the publications. I did not see any publications specifically relating to nitric oxide or ECMO; would that be correct?

A. No, that’s correct.

Q. I’m sorry.

A. There’s probably 30 or 40 publications.

Q. What I’d like you to do, if you can, with you’re pen —

A. Sure.

Q. — if you can go through your CV, and if you can circle the publications that are relevant to the issues in this case. Are you going to put a little star by them?

A. Is that good? Did you say checkmark or circle?

MS. MAZER: There are no numbers to circle.


Q. Oh, okay. Thank you, doctor.

A. Do you want me to do lectures too?

Q. Just the articles.

A. The main articles, not the abstracts.

Q. Okay. Doctor, for all of the articles that you had checked on your CV that you’ve indicated pertain to issues involved in this case, do you intend to comment on any of those articles or rely upon any of those articles in support of the opinions that you reached in this case?

A. No. Just my general background, experience. But I, obviously, will comment on the article of Dr. Curtis.

Q. We’ll get to that in a minute. Let’s talk a little bit about your education and experience, and we can be very quick through this. Can you tell me where you went to medical school, residency, any medical fellowship programs you had?

A. Sure. I went to Harvard Medical School in Boston. I did my residency there in pediatrics. And then went to the University of Virgina and did a fellowship in pediatric cardiology and a fellowship in pediatric critical care. And I obtained boards in pediatrics, pediatric cardiology and pediatric critical care. I stayed on in Virginia and ran the cardiac ICU as well as worked on the pediatric intensive care unit, and then I went to UIC where I was the Director of the Pediatric ICU, Director of ECMO, Director of Respiratory Care.

Where Are ECMO Treatments?

Q. Now, with respect to the pediatric and cardiac units, where is the ECMO treatment performed?

A. It’s performed in both the cardiac unit and the pediatric ICU, but not in the NICU.

Q. Is there a particular criteria for a child who needs ECMO as to whether or not they go to the cardiac unit or the pediatric unit?

A. Yes. If the patient has myocardial dysfUICtion, the heart’s not working, or if
they are a patient who has congenital heart disease of some sort, then that would primarily go into the cardiac unit. If the patient has a — is a neonate, for example, like this child here, a neonate for a variety of reasons, they would go into the pediatric intensive care unit, or a patient with respiratory problems, would go into the pediatric ICU.

Your Hospital Guidelines and the Oxygenation Index

Q. Now, does UIC have any guidelines, policies or procedures for the acceptance of neonates from outside institutions into the — into the pediatric intensive care or the cardiac intensive care unit?

MS. MAZER: Objection. But you can answer.

A. I don’t know that there’s a written guideline. But what we and the neonatologists have worked out is that if we believe there’s a high risk for ECMO, then they get admitted into the pediatric intensive care unit. And that is — would be a patient who is on — either on nitric oxide or on an oscillator at an outside institution and they have to have a specific what’s called oxygenation index. And the oxygenation index, as you learned from your expert, is a measure of how much work we’re doing over how much benefit we’re getting out of that. So it’s — in other words, it’s the mean airway press times the amount of oxygen they’re using, so the amount of work the ventilator is doing with the mean airway pressure times the amount of oxygen you’re giving to the patient divided by the amount of oxygen you’re getting. So a lower number would result in less risk for ECMO, and a higher number in general increases your risk for a mortality, and then you would become a criteria. And so our criteria for ECMO at UIC would be — there’s really three main criteria for — one is what’s called an oxygenation criteria, and you’re not getting enough oxygen to the tissues. And when you don’t get enough oxygen to the tissues, as you know, you develop acidosis and you have organ injury, et cetera. So we use the oxygenation index as a metric of that. And the acceptable approach, that is usually an oxygenation index of 40, for three out of five blood glasses, 30 minutes apart. That’s the typical. Sometimes if the patient looks like they’re progressing rapidly, we might begin ECMO earlier than that. But certainly that’s an acceptable guideline, if you will.

The next one is a ventilation/acidosis guideline. So patients who have a persistent pH less than 7.25, and elevated C02 related to inability to ventilate, we would consider those as potential candidates for ECMO, at risk for that. And then finally, cardiovascular collapse. So inability to maintain blood pressure and profusion despite adequate oxygenation, then we would put those patients on ECMO. And a lot of those patients would be going to the cardiac unit for that specific reason.

The Role of a Neonatologist

Q. Now, do you hold yourself out as a neonatologist?

A. I don’t hold myself out as a neonatologist, but I certainly am an expert at neonatal physiology, cardiac and respiratory physiology. So the majority of my patients are those. I’ve published extensively on those. I lecture nationally, internationally on those subjects. So neonatal cardiorespiratory physiology, I am an expert in that.

Q. Now, you do have neonatologists at the hospital that you work for now, correct?

A. Absolutely.

Q. And is a neonatologist — is that service a 24-hour service that’s assigned to the pediatric intensive care and the cardiac intensive care?

A. Do you mean are there neonatologists that come to the units 24/7?

Q. Yes.

A. No.

Q. Can you tell me — because I think you mentioned you do have neonatologist that you work with in the pediatric unit and the cardiac intensive care unit. Can you tell me how that service works at UIC?

A. Sure. Well, I’ll use an example. You’re the neonatologist, and I’m the intensivist. We get a phone call from transport. We both get on the phone. We decide what’s going on and assess the risk of the patient and decide whether we’re going to admit that patient.

The Decision to Transfer a Baby to Another Hospital

Q. Who makes the decision as to which of the ICU units a neonate goes to from transfer from an outside university into UIC University?

A. All neonatal heart disease patients come to the pediatric ICU. Every single one.

Q. Ah, okay.

A. Patients that are premature that have evidence for prematurity — and we define that as a less — less than two kilograms — then they would be going to the neonatal ICU, okay? Full-term patients that have non-ECMO issues are going to the neonatal ICU, but full term patients that are at high risk for ECMO will come to the pediatric ICU. There are times when those patients get admitted to the NICU, and then they’ll call us and say, “Can you come over and take this kid to your unit and put them on ECMO?”

Q. All right. So the full-term babies who are delivered that end up in the pediatric ICU for whatever reason, if then their condition requires ECMO, then they’re transferred to the NIC-Unit?

A. NICU never does — there’s no ECMO in NICU.

Q. Oh, okay.

A. All ECMO is done by us.

Q. All right.

A. This is exactly the way Hopkins work, too. This exact way. And the reason why that is, is because every day we’re doing ECMO. We have our kids that go down to surgery, general heart surgery, patients go down all the time, so sometimes they don’t come off, so they come up on the machine. And so we have ECMO all the time. You can go to UIC right now, I think there’s two kids on ECMO right now in the cardiac unit.

ECMO and Nitric Oxide

Q. All right. I won’t sell them. Let’s talk about your patient population, and this would include — and I want to concentrate on the patients that receive nitric oxide and the patients that receive ECMO. Can you give me an idea — however you want to break it down, whether daily, weekly, monthly — how many patients are actually at UIC University Hospital receiving nitric oxide and/or ECMO treatment?

A. All right. So ECMO probably will be the first to do and we do over — we probably do one a week or a little bit under that. There are 40-something children with ECMO over the past year, and a fair amount of that is congenital heart disease ECMO, so patients who have — either their heart’s not working well or they haven’t adjusted well to the surgery that they’ve had. So they come up and have surgery, and they may be put on in the operating room and brought upstairs on ECMO, or they may go on shortly thereafter. So it’s about 75 percent congenital heart disease and the other 25 percent will be pulmonary retention, sepsis, pediatric ARDS. And then nitric oxide — we are the largest user of nitric oxide in the entire hospital. Every year we have to go in and defend the use of nitric oxide to the pharmacy group. And so I would say that there is routinely one to two patients per day on some form of nitric oxide.

Q. When you mentioned the criteria for the transfer to your hospital for ECMO treatment, is the criteria different for the transfer to your hospital for nitric oxide?

A. Yes.

Q. All right. Can you tell me what those guidelines are?

A. Well, what we usually — you know, our typical approach to this will be decided as failure of medical management. So if patients are — many of our institutions, especially in 2018, did not have nitric oxide. And so much like in this case, we would — they would have some form of hi
gh-frequency ventilation. Typically, high-frequency oscillatory ventilation is one of the ones that they use a lot of. There’s also high-frequency jet ventilation.

More Nitric Oxide Versus ECMO Discussion

Q. Doctor, have you ever participated in any clinical trials or study that showed the statistics of a child being placed on nitric oxide to avoid ECMO, which means you have a child and you have babies that they’ve administered nitric oxide to, and you found that those babies do not go on to ECMO treatment if the nitric oxide is administered in a timely fashion. Have you participated in any of those trials or studies yourself?

MS. MAZER: Objection to form.

A. Yes. But you have to describe what specific patient population. That’s the point, right? So if you’re talking about patients with pure pulmonary hypertension, right? Neonatal pulmonary hypertension, or patients like pediatric patients who have lung disease as well. Those are the type of patients we’ve tried nitric oxide on. And then some of those cases, nitric has been able to ameliorate the need for ECMO.


Q. Let’s see if we can narrow it down to the medical condition of the baby involved in this case.

A. Well, let’s see if we agree with the medical condition.

Q. I was going to ask you — I was going to ask you whether — well, let me ask you this: Do you have an opinion as to what the medical condition of this baby was at or shortly after time of birth? And this would be — let’s go with the time the baby was at Davis Hospital, do you have an opinion as to what the baby’s medical condition was?

A. Yes.

Q. Okay. Go ahead, Doctor?

A. So I believe that this patient had what we call — which is vasopressor-resistant shock. Also has pulmonary hypertension and respiratory failure.

Septic Shock

Q. But the general question is: What’s causing the shock?

A. Presumed sepsis.

Q. Sepsis. Now, was it — did this baby ever go into septic shock?

A. Yes.

Q. Okay. And how do you define septic shock?

A. Septic shock is when there’s inadequate oxygen delivery to the tissues. That’s the definition of shock and then organ dysfUICtion. And we see that when the patient has pHs down around the 7.8 level, 7.28 level at Johns Hopkins with normal C02s and the bicarb is dropping significantly, and then they get lactate that’s 7, that’s the definition of septic shock. In fact, we published an article years back about the role of lactic before ECMO, and we defined lactate greater than 8 as having — is a strong predictor for the development of cerebral hemorrhages in patients. So certainly —

Q. Are you talking about lactic acid when you talk about lactic?

A. I’m sorry. Yeah, lactic acidosis. So that’s on — you’ll see that on page 95 of the Johns Hopkins record. They record that.

Q. Now, what are the other typical signs and symptoms of septic shock?

A. Hypertension. And in this case here, it has a vasopressor refractory component to it, which this child’s on enormous doses of vasopressors, and those — when you’re unable to maintain your blood pressure despite significant vasopressors, that’s a very common component of stock shock.

Evidence of Septic Shock


Q. What is the evidence this baby was in septic shock at the time of its birth?

A. The evidence of shock — I’m not saying he was in septic shock at the time of birth. But during this timeframe, when he begins to not have his blood pressures respond to — if you look at the PAL diagrams, look at 80 kilo of fluids that the child got, and then not responding to dopamine and then not responding to dobutamine, and then finally only responding to late epinephrine. That’s the timeframe he’s developing the shock.

Q. That’s what I want to know, if you can pinpoint. Did the — did the baby transfer from sepsis — is — is there a difference between sepsis, severe sepsis and septic shock; would you agree with that?

A. Yeah. Those are common lexicons that we like to use to sort of help characterize the situation for the patient.

Q. Exactly. Now, the baby was not born with sepsis shock, correct?

A. No.

Q. Okay. So there was — do you believe there was evidence of sepsis at the time the baby was born?

A. Well, I believe there was evidence of sepsis at the time he was born because of the — all the — the meconium stain that had occurred before then. Evidence — certainly there was evidence for fetal distress. The mother’s placenta came back with positive for chorioamnionitis, which we know obviously later on, but certainly in the initial stage, the child has some evidence of a cardiorespiratory — beginning to have what’s called cardiorespiratory failure which is why the patient had to be intubated and then put on the ventilator for respiratory support.

Q. Now, do the platelet counts have any indication of the degree to which the child is in sepsis?

A. The platelet count is one reflector of that. If you look at the — there’s a very nice ID consult in the Johns Hopkins record, which I’ve cited here for you, which is Johns Hopkins 79. It’s a very nice time of explaining what they talk about, not just the platelet counts but all the red blood cell nucleation and destruction of that being a stress bone marrow in utero, and I think that’s a really good example of what we think that the platelet counts are a — somewhat of an indicator of what’s going on.

Vasopressor-Resistant Hypotension and Septic Shock

Q. Did any doctor at Hopkins diagnose this baby to have septic shock?

A. They certainly called him with vasopressor-resistant hypotension. There is — on Johns Hopkins’ record number 98, “UIClear etiology of hypotension. Suspect viral etiology.” They say, “Severe cardiovascular collapse. Presume sepsis with vasopressor-resistant hypotension,” Johns Hopkins 41. It’s all over the record.

Q. Well, I’m going to be very specific. Did any doctor at Hopkins definitively make a diagnosis and document that this baby was suffering from septic shock at any time?

A. Yes. They’re talking about it all the time. Hypotension — that’s what vasopressor-resistant hypotension is. Cardiovascular failure. So they’re saying, cardiovascular failure, collapse. Suspected sepsis.

Meconium Aspiration

Q. Okay. Doctor, was a diagnosis of meconium aspiration made by Dr. Alexander as part of the discharge diagnosis for this child?

A. Yes.

Q. Do you disagree with that?

A. I don’t think there’s significant meconium aspiration based on the x-ray, based on the clinical course. But the bottom line is — and based on the fact that the oxygenation index is low, certainly the kid had — the child has definite evidence of pulmonary hypertension, though.

Q. You said you don’t believe there was significant meconium aspiration. Do you at least agree that the doctor — that Dr. Alexander’s diagnosis of meconium aspiration on discharge was an active — was an accurate diagnosis?

MS. MAZER: Object to form and foundation.

A. I would just say that that’s — you know, what she made the diagnosis of and that’s her diagnosis. In my mind when I look at
the x-rays myself, there’s no significant evidence for any kind of meconium aspiration in the x-rays.


Q. Doctor, because you’re an expert, I’m going to ask you this question. It’s very specific. Do you believe Dr. Alexander made an inaccurate diagnosis of meconium aspiration as on the discharge summary in this case?

MS. MAZER: Object to form and foundation. As to what that was.

A. Again, I think she’s — her opinion is the child had meconium aspiration. So I don’t

Was There a Brain Bleed?

Q. Now, was there any evidence of any intraventricular hemorrhage in the child’s brain shown by the ultrasound they did while at St. Davis?

A. No. Davis just showed what we talk about as, quote/unquote, slit-like ventricles which means that the brain has edema, cerebral edema.

Q. But you can’t say that that’s caused by hemorrhage, correct?

A. No.

Q. Okay. All right. Just — what I’m trying to say is, when the child was at Davis, at least up until the time the ultrasound was performed on the head, which I think it was almost at the time he was discharged on the 17th, there was no evidence of hemorrhage inside the child’s brain; would that be a fair statement?

A. By ultrasound, which is very nonsensitive technique. What we typically do — this is exactly what we do if you called with a patient, I’d say get an ultrasound of the head there because we’ll probably put the kid on ECMO, and they do a head ultrasound of the kid. It’s only sensitive looking at large hemorrhages. It’s not very sensitive to small ones.

First Time Rendering This Opinion in Any Case


Q. So this would be the first time in your career that you’ve ever rendered an opinion that a vitreous hemorrhage in a neonate less than one month old was caused by sepsis; would that be a fair statement?

MS. MAZER: Objection.

A. Yes.


Q. Okay. Would you defer to an ophthalmologist or retinal surgeon for conclusions with respect to the cause of vitreous hemorrhage in neonates who are under one month old who have suffered from sepsis and also had ECMO?

MS. MAZER: Objection. You can answer.

A. I guess, yes, the answer would have to be yes.

Heparin and ECMO

Q. In order to administer ECMO, you have to administer heparin, correct?

A. Absolutely.

Q. And heparin is known to cause bleeding in the brain, correct?

A. Well, I think — let’s say it like this —

Q. Let me ask this. Heparin is known to cause bleeding throughout the body; would that be a fair statement?

A. Heparin can cause bleeding throughout the body, and heparin can cause bleeding in the brain in ECMO, but it’s usually in patients that have had significant hypoxia or inadequate profusion to parts of the brain that that happens to.

Q. But does this child have severe hypoxia to the brain — I didn’t see that in the chart.

A. The chart doesn’t have severe hypoxia to the brain and you’re exactly correct, just like we say it all along, he doesn’t have severe hypoxia anyway. But it’s not just severe hypoxia, remember, it’s related to the actual profusion of the blood flow to the tissues, and we know that the cerebral measurement of how much oxygen is being obstructed by the brain was quite low at 90, so we know there was not a lot of obstruction.

Lactic Acidosis

Q. Other than that reason that you say you believe the child had inadequate oxygenation to the brain, is there any other reason other than that test that you believe the child had inadequate oxygenation to the brain?

A. Yes. The lactic acidosis that he presents with, and we described that quite well, as I talked about that article where we talked about the lactic being an indicator of increased stress.

Q. Did the child suffer any brain damage that you’re aware of as a result of the lack of oxygenation to the brain that you can see?

A. No, not that I’m aware. I mean, the child did remarkably well.

What More Could the Doctors Have Done?


Q. Now, can you tell me all of the other modalities that could have been employed from the time the child was born on the 16th until 7 o’clock a.m. on the 17th that could have improved his condition with respect to pulmonary hypertension, meconium aspiration, sepsis that were not done in this case?

MS. MAZER: Object to form and foundation. Calls for speculation.

A. Number one, the meconium aspiration component to it is irrelevant because there’s not a significant amount of aspiration. So there’s nothing that’s going to support that, except for the component of pulmonary hypertension. So pulmonary hypertension and the ongoing sepsis that occurs, one could do the things that they do, which is you could put nitric oxide, try nitric oxide, and I think we talked a lot about that, about whether that would help or not.

Standard of Care Opinions


Q. Okay. We didn’t talk — are you going to talk about breaches of the standard of care with respect to the doctors who cared for Kody Mongan? And this would be the physicians that I’ve identified so far to would be Dr. Chernik who I understand from taking her deposition was a pediatrician who was on from 7 p.m. on the 16th to 7 o’clock a.m. and Dr. Alexander then took over from 7 o’clock a.m. to the time the baby was transferred to Hopkins, which was about 5:30 on the 17th. Do you tend to give any opinions regarding whether these doctors did or did not comply with the standard of care?

A. Yes.

Q. What are those opinions?

A. My opinions are that they complied with the standard of care.

Q. Okay. And how — and how so? How did Dr. Chernik comply with the standard of care when she was the first doctor that was responsible for the child’s care and treatment?

A. Again, they — the patient’s on the ventilator and they’re managing the patient. The patient has no evidence of acidosis at that point in time, and so they continue to manage that patient appropriately. And, you know, at that point in time, could they have transferred the patient to another institution? Sure. But were they deviating the standard of care by not transferring him? No.


Q. Are you going to address the issues of informed consent or not?

A. No.

MR. MILLER: Okay. That’s all the questions I have, thank you.

Note: This deposition has been modified. Names and facts have been changed to protect the identity of the parties and the doctors involved and salient parts were cut out to make enough space to fit this all on one page.

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