One Mother's Trial Experience
Day 1           Day 2           Day 3           Day 4      Mother's Final Comments

Day 1
Medical malpractice trial gets under way
Cynthia T. Pegram / Lynchburg News & Advance
May 26, 2004
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The death of Sean Carter, a stillborn identical twin, led to changes in state law for recording stillbirths.

Now, nearly four years later, Sean’s stillbirth in December 2000 is the basis of a medical malpractice trial that opened Tuesday in Lynchburg Circuit Court before Judge Mosby G. Perrow III.

Cheryl Carter, mother of Sean and his surviving twin Donovan, filed suit in 2002 against the two Lynchburg obstetricians involved in her care: Dr. William F. Baker and Dr. Tracy A. Wheelock and their practice, Women’s Health Services of Central Virginia.

Carter says the physicians failed to monitor her pregnancy although the condition that caused Sean’s death, twin-to-twin transfusion, is a known risk for identical twins. She says she was not told of the danger.

The physicians say that Carter’s medical care was not at fault, that the tests she was given occurred in a sequence that meets the standard of care required of Virginia doctors, and that some conditions don’t have good outcomes despite good care.

Among the issues in the case is that despite Carter’s concerns, she was discouraged from having an autopsy on Sean’s body, and no effort was made to do more than a routine examination of the placenta.

Tuesday’s jury selection of seven (plus an alternate) was a challenge because many of the potential jurors had some contact with the dozen or so doctors in the practice, the largest OB-GYN practice in Central Virginia. The trial is expected to continue through Thursday.

Carter, her husband Gerald, and her mother testified Tuesday. A statement taken under oath by Dr. Karl W. Biesemier, a Lynchburg pathologist, was read as part of Tuesday’s testimony.

In opening arguments, Carter’s attorney, Andrew E. Carpenter, of Roanoke, stressed the importance of the standard of care the jury must use in its decision - if the obstetricians met the standard of care expected.

Carpenter noted that Carter had previously delivered three other healthy children when she became pregnant with the twins. She was told that a twin pregnancy was a little different, and needed additional monitoring.

Because she was 35, her age raised the chances of birth defects, so Baker referred her to a Charlottesville specialist in high-risk pregnancies, who did tests. Those were fine, and in the process, the specialist did a scan and told her there was one placenta and two amniotic sacs that indicated that they were probably identical twins.

She was scheduled for an ultrasound three weeks later when seen by a doctor at Central Virginia Women’s Health Services, but no ultrasound was done - and that is an issue in the trial.

On Nov. 20, 2000, at a scheduled visit, the ultrasound technician at Virginia Baptist Hospital gave a good report of the health of one of the twins, but said she had to check her measurements for the other.

Wheelock came back with the technician, looked at the ultrasound, and told Carter one baby had no heart beat and had died.

Carter testified that Wheelock mentioned the death was probably caused by twin-to-twin transfusion. The condition can create a situation in which twins share some blood supply between them. That can cause fatal complications.

Carpenter said that the problem could be detected by ultrasound when the amniotic fluid of one twin is found to be substantially less than the other.

To protect the living twin, Donovan, by extending the developmental time in the womb, Carter carried her living and dead son several more weeks until they were delivered by Caesarean section.

Bevin R. Alexander Jr., attorney for Baker and Wheelock, said that for some biological situations, nothing the physician could do could make a difference in the outcome.

He said that the surviving twin is normal and healthy. And, the baby who died had normal amounts of amniotic fluid surrounding him.

The doctors were reasonable and prudent in their care that occurred in real time - not through a retrospective view, said Alexander.

Biesemier’s testimony, read by an associate of Carpenter’s, said that he had not been asked to perform additional tests on the placenta. Although examination for twin-to-twin transfusion is possible, he said, it is rarely done and if it is, it is usually in academic centers. He said autopsies on the bodies of infants can be and are done at Centra Health.

When Sean was born dead, Carter learned that a stillborn infant is considered a fetal death and listed as only a vital statistic by the state. The twins were named long before they were born. Carter felt that Sean’s existence, which meant so much to the family, should be recognized.

By working with local legislators, Carter was successful in getting state law changed so that a “Certificate of Birth Resulting in Stillbirth” can be obtained.

Today’s trial will include expert testimony from Carter’s witnesses and some early testimony by witnesses for the defense.

Day 2
Condition can be found early, doctor testifies
By Cynthia T. Pegram / Lynchburg News & Advance
May 27, 2004
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The second day of a medical malpractice trial stemming from the stillbirth of an identical twin boy brought testimony from both sides Wednesday.

Cheryl J. Carter brought the $1.6 million suit in Lynchburg Circuit Court against obstetricians William F. Baker and Tracy A. Wheelock and Women’s Health Services of Central Virginia, a group practice in Lynchburg.

Carter’s twin son’s death was attributed to twin-to-twin transfusion, a condition said to occur in as many as one in seven twin births, most often identical twins.

The jury of five women and three men, which includes one alternate, heard extensive testimony from expert witnesses including a Virginia obstetrician testifying on behalf of Carter as well as the first witnesses for the defense.

Testimony opened with the reading of a deposition by Dr. Siva Thiagarajah, a specialist in maternal and child medicine at Martha Jefferson Hospital in Charlottesville. Thiagarajah described twin-to-twin transfusion as occurring when twins sharing the same placenta have the potential “for one twin to feed at the expense of the other.”

One twin begins to grow very fast, getting most of the blood, while the other becomes anemic.

Twin-to-twin transfusion can best be detected by ultrasound, said Carter’s witness, Dr. Richard L. Stokes. He is board-certified in obstetrics and gynecology and practices in Reston.

An ultrasound can detect a greater amount of amniotic fluid around the larger twin.

Even with advanced certification and more than 30 years in practice, Stokes does not attempt to manage high-risk pregnancies but refers them to specialists in maternal-fetal medicine, he said.

Stokes said that Baker failed to meet the standard of care because he did not order ultrasounds for Carter between Oct. 5, 2000, and Nov. 20, 2000.

“This lady went 46 days between sonograms,” said Stokes. “The standard of care is to watch closely. Identical twins are at the most high risk.”

The purported failure to meet the standard of care is the measure used in medical malpractice cases - today’s witnesses will address the standard of care from the defense position.

Stokes said that treating the problem - such as withdrawing amniotic fluid from around the larger baby - does have risks. But untreated, one twin will die. The key to diagnosis is the ultrasound, he said, and the doctor should view the ultrasound in person, rather than relying on images made by the technicians.

Stokes said that of six measures that indicate twin-to-twin transfusion, Carter’s twins had five.

Bevin R. Alexander Jr., attorney for Baker and Wheelock, noted in cross-examination that Stokes was earning $600 an hour for his testimony, and routinely earned $30,000 to $40,000 a year as an expert witness, often for the Roanoke law firm representing Carter.

Stokes said that his practice in Reston bills for that service and the money goes to the practice as a whole. He said the practice, which employs nine people plus his partner, does not shut down when he is in court and his employees must be paid for their time.

By the time he does get paid as an expert witness, said Stokes, it’s about $150 an hour.

Wheelock testified, as did two ultrasound technicians from his practice.

The two technicians, both with considerable training and experience, reported few discrepancies in the size of the twins at the times they were involved.

However, at the time the technician doing the ultrasound detected the dead twin, the computer component calculated differences in gestational age.

Wheelock, who has been in practice here since 1992, is board certified and he delivered Carter’s second child.

In Wednesday’s testimony, he reviewed her medical records, which described a fairly normal pregnancy. Six to eight weeks between ultrasounds was not an unusual length of time in the practice at the time, according to testimony.

When she began having contractions, he told her she needed to stop working and get more rest.

When Carter began to show signs that indicated a premature delivery might occur, he put her on the fetal monitor to evaluate uterine contractions and the impact on the baby.

Wheelock said that he was more worried about a preterm baby, than seeing another ultrasound.

On Nov. 20, 2000, when the twin’s death was detected, it was Wheelock who had to break the news to his patient. The focus then had to switch to keeping the other twin alive, so that it was not born prematurely. The concern also was that clotting blood from the circulation of the dead twin might reach the living twin and cause brain damage.

Carter received medications to help the baby’s lungs develop more rapidly and was able to carry him almost another month, until about the 32nd week. He’s now a healthy 3½ years old.

The trial will continue today and may extend into Friday.

Day 3
Malpractice suit expected to go to jury today
Cynthia T. Pegram / Lynchburg News & Advance
May 28, 2004
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Jurors are expected to decide today on the medical malpractice suit brought by a local woman against two Lynchburg obstetricians and their medical practice.

But the seven-member jury faces the challenge of extracting a verdict from compelling - but opposite - medical opinions.

Virginia obstetricians testifying Thursday in the medical malpractice case involving the stillbirth of a twin, said that the cause of death could not be determined from the information available, but doubt it was the “twin-to-twin transfusion” on which the case is based. And they said that the two physicians had met the standard of care expected of them.

That testimony, on behalf of Lynchburg obstetricians Dr. William F. Baker and Dr. Tracy A. Wheelock, contradicts earlier medical testimony on behalf of Cheryl Carter, whose twin son died in 2000.

Carter’s $1.6 million suit against Baker, Wheelock and Women’s Health Services of Central Virginia went before the jury Tuesday in Lynchburg Circuit Court.

Also testifying Thursday was Carter’s final witness, Dr. John P. Elliott, an Arizona specialist in high-risk pregnancies and developer of the most frequently used technique to save babies in twin-to-twin transfusion.

The condition occurs most often in identical twins sharing one placenta in which the twins have a mingled blood supply.

One twin becomes a donor to the other who then grows larger, taking more of the nutrients as the other becomes weaker. The condition shows up over several weeks, or develops over a longer period.

It is diagnosed by ultrasound technology.

Elliott viewed the images taken when Carter’s baby’s death was detected. He confirmed the twin-to-twin diagnosis that was first suggested by Wheelock and Baker and noted in Carter’s medical records.

Baker testified Thursday. He delivered Carter’s first child and was also a treating physician in the birth of the twins with Wheelock. Carter came under Baker’s care in July 2000 for the twins. He referred Carter to a Charlottesville specialist who did tests for genetic disorders and found no problems.

A point of the case has been that although the twins were a high-risk pregnancy, only two ultrasounds were taken during the 46-day period of Oct. 5 to Nov. 20, 2000.

Baker corrected earlier testimony of a Women’s Health Services of Central Virginia ultrasound technician who said the practice routinely scheduled such tests at four, six or eight weeks.

Baker said that eight weeks between ultrasounds is not routine.

Carter carried both twins about a month after the death and was delivered by Caesarean section.

Baker testified Carter wanted studies done of the placenta, and he warned her that it would not show very much because in the four weeks the pregnancy continued, tissue had been reabsorbed.

Baker testified that in Carter’s earlier statement, she explained that she had wanted an autopsy performed, but Baker had told her the baby’s body would have to be sent out of Lynchburg for that. Baker said Carter must have misunderstood him.

Autopsies are done in Lynchburg, Baker said. No autopsy was done.

Baker said she phoned him not too long after she went home from Virginia Baptist Hospital, with many detailed questions about twin-to-twin transfusion. They spoke for some time, Baker said, and he told her he felt she was intellectualizing her grief and suggested she see a counselor.

The advice upset her and the call ended in anger. Baker said he called her the following week to apologize.

During questioning by Trey Smith, one of Carter’s Roanoke attorneys, Baker said he had explained the risks of twins pregnancies to Carter, but may not have used the terminology “twin-to-twin transfusion.” Carter had said earlier if she’d known twin-to-twin transfusion was a risk, she would have had options.

Although Carter’s attorneys continually stressed the 46-day gap between the ultrasounds, Baker and Wheelock’s witnesses said the other measures they took in her care exceeded the standard of care.

Dr. M. Catherine Slusher, a Harrisonburg obstetrician, said that when Carter began having signs of pre-term labor, her doctors first tried her on bed rest.

When contractions continued, she was hospitalized for fetal heart monitoring and given appropriate medications to stop the onset of pre-term, another sign of good care, Slusher said.

Slusher noted that there is no standard of care - the crucial measure in malpractice cases - in setting a sequence for ultrasounds.

Bevin R. Alexander Jr., attorney for Baker and Wheelock, asked Slusher if an ultrasound taken four weeks earlier than the Nov. 20 ultrasound would have shown any problem.

Slusher said the ultrasound that detected the twin’s death showed no clinically significant differences in the amount of fluid around each baby. In twin-to-twin transfusion the bigger twin has large amounts of amniotic fluid. Both babies at that time were closely related in size.

Dr. George W. Maxymiv, a Salem obstetrician, contradicted earlier testimony that said the fetal heart monitoring results showed problems. Maxymiv said the tracings (the printout) revealed healthy babies who reacted to the uterine contractions the mother was having.

Babies who are sick or in trouble just aren’t that reactive, Maxymiv said.

He said the ultrasound on Nov. 20 that detected the dead baby, showed none of the signs of twin-to-twin transfusion.

“In my opinion we don’t know what caused the demise,” said Maxymiv.

Day 4
Jury clears doctors in civil suit
From staff reports / Lynchburg News & Advance
May 29, 2004
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A Circuit Court grand jury deliberated about two hours Friday before ruling in favor of two Lynchburg obstetricians in a medical malpractice case.

Cheryl Carter, whose identical twin son was stillborn in December 2000, sought $1.6 million in damages from Dr. William F. Baker and Dr. Tracy A. Wheelock and Women’s Health Services of Central Virginia.

Virginia obstetricians testifying on behalf of Baker and Wheelock said the two physicians had met the standard of care required of all Virginia doctors, and that the cause of death could not be determined.

Witnesses for Carter said the doctors did not order ultrasounds frequently enough. They said an ultrasound is the best way to detect twin-to-twin transfusions, which was attributed as the cause of the baby’s death.

Twin-to-twin transfusions occur when a placenta is shared, and one twin gets more of the blood than the other, according to physician testimony. It occurs most frequently with identical twins. If left untreated, one twin will die.

Carter, who had named the boy Sean, was instrumental in fighting for a state law, which allows stillborns to get birth certificates.

The jury trial, presided over by Lynchburg Circuit Judge Mosby Perrow III, started Tuesday. Jury deliberations began and ended Friday.

Donovan Carter, the surviving twin, is now a healthy 3-year-old. Cheryl Carter delivered three healthy children before she became pregnant with twins at age 35, according to testimony.

Several weeks before Donovan’s birth, Cheryl Carter found out that Sean had died. To enhance Donovan’s development, she carried her living and dead son until they were delivered by Caesarean section.

Before Carter helped change Virginia’s law, stillborn infants were considered fetal deaths and listed only as statistics. Carter said that Sean’s existence, which meant so much to the family, should be recognized.

Mother's Final Comments
Letter to the Editor / Lynchburg News & Advance
June 26, 2004
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The News and Advance has followed quite closely as I pursued a malpractice trial in the Lynchburg Circuit Court against my obstetricians regarding the care I received from them during a Monochorionic Twin pregnancy in 2000.

I would like to express final a word as a patient who has "gone through the system" currently available to those who feel they have been a victim of medical malpractice.

These obstetricians diagnosed that I suffered an onset of Twin to Twin Transfusion which was not recognized or observed until after the death of one of my twins in-utero at approximately 27 weeks into the pregnancy. We were extremely fortunate that our surviving twin did not suffer death or neurological damage of at the time of his brother's passing, and are very thankful for the excellent care he received in the VA Baptist NICU after his premature delivery at 32 weeks. He is now a rambunctious three year old who is a joy to our family.

The defense position was that my obstetricians had met the "VA Standard of Care." The two VA obstetricians and one VA perinatologist the defense presented each testified I would never have gone longer than 4 weeks between ultrasounds had I been under their care, yet it was OK that I went 46 days without one in this office because 4-6 weeks is within the VA Standard of Care. These physicians have never testified for a patient, and have personally seen less than 9 actual cases of TTTS between themselves. Their opinions were that I did not have treatable symptoms of TTTS evident in my records, that we would never actually know what happened to cause the death of our twin, and that my obstetricians had made a "knee jerk" diagnosis of TTTS which was not accurate.

Dr. Elliott, a perinatologist who invented the procedure for treating TTTS that is currently considered the "gold standard", came from Arizona and testified on my behalf that not only was there failure in the National Standard of Care, (which calls for ultrasounds to be serially performed every 2 weeks, 4 weeks minimum) but after carefully reviewing my records, his qualified medical opinion was that timely ultrasound testing would have shown symptoms which could have allowed for treatment that "to a degree of medical probability" would have saved both children and decreased the risk of death or disability to each of them. Both Dr. Elliott and a VA obstetrician who testified on my behalf, Dr. Stokes, have a record of following the medicine and while paid for their time as experts, they have historically testified for both patients and physicians fairly equally. I felt it was very important to assure that the medical opinions expressed on our behalf not be considered "paid for".

After four days of complex, conflicting medical testimony, a jury of 7 found in favor of the obstetricians.

I was very disappointed, but not surprised. I had been warned that a case such as mine would be difficult to win in Lynchburg, especially since the "White Coat March" was launched from this town, and there was a prevailing sentiment of sympathy for the plight of physicians who are being driven out of business by the high cost of malpractice insurance.

We took on the trial understanding this. The issue of monetary restitution for us was primarily in order to pay for the cost of undertaking the trial. Obviously, no amount of money could bring back our son or make up for the terrible pain caused by what we feel was the missed opportunity to make choices regarding treatments that had significant potential to have saved both of our twins. I truly do sympathize with physicians who are being financially drained by Malpractice Insurance premiums that are simply scandalous.

Unfortunately, the lawsuit was the only way I felt that I could be assured of change that would protect future parents of twins from the same "VA Standard of Care" I received under these obstetricians. This is a major problem with the system for both parties. Why must it be necessary to hire a lawyer and go to court in order to file a medical malpractice claim? There needs to be a better way for patients to address these issues. If we had been given the option of meaningful mediation, this entire situation could have been avoided.

Now, we shall file a request for a peer review, and a complaint to the State Medical Board. This will require that the circumstances be reviewed by other Virginia physicians, and perhaps this case can help ensure that the women of our commonwealth receive the Nationally recognized Standard of Care for Monochorionic Twins in the future. It is something they should expect to receive, and not something to be considered optional or randomly dependent upon the obstetrician they happen to be under the care of.

I will then be able to look to the future knowing that we did everything avail able to the patient under the current system. I will also continue to speak out for a better way than the expense and trauma of a lawsuit for patients to address potential medical errors, and to educate wherever I can about both TTTS and Stillbirth awareness.

In the end, I am very glad we went through with it, even if we didn't get the decision we had hoped for. I do not feel it was a futile effort, because we achieved the primary goal which was accountability and change. Perhaps as a result of the publicity surrounding this case, the powers that be will finally address the need for a more open forum to be available between patients and their physicians when problems arise. One can always hope.

I wish to thank my family and friends for the inspiration they have given me to stand against the system, raise a voice, and be heard on behalf of myself and this child. While I was denied the opportunity to fight for him before his birth....you gave me the strength to be a mother to his memory and enable his brief little life to be counted, and remembered.


Cheryl Carter

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