Mothers Against MSBP Allegations
(WHEREUPON, the following cause was heard in the Juvenile Court of Davidson County, Tennessee, on September 17, 1996, before the Honorable Mary
Walker:)
THE COURT: We're here regarding Phillip Patrick. It's a preliminary hearing. Everyone's present. We're ready to go forward. Swear everyone in and I'm
assuming the lawyers want the rule.
MR. FRIEDMAN: If Your Honor please, that's correct, and if I may introduce myself.
THE COURT: Yes.
MR. FRIEDMAN: I'm Robert Friedman. I'm from Memphis, Shelby County, Tennessee,
and it's a pleasure to appear before Your Honor in this matter on behalf of the Patricks this afternoon.
THE COURT: So we have Mr. Hirsh, Mr. Wells and Mr. Friedman. Is that right?
MR. FRIEDMAN: That's correct.
THE COURT: Representing the Patricks.
MR. FRIEDMAN: Your Honor, just to remind the Court --
THE COURT: Mr. Wells isn't here.
MR. FRIEDMAN: Okay.
THE COURT: He's responsible for B
MR. FRIEDMAN: I think we've probably got enough lawyers for the Patricks, Your Honor.
THE COURT: Let's see. Everyone who expects to testify, if you'll raise your right hand.
(WHEREUPON, the witnesses were sworn at this
time.)
MR. FRIEDMAN: Your Honor, we are asking for invocation of the rule. I might tell the Court that I have an expert witness who is here today pursuant to a
subpoena from New Orleans, Louisiana. He's a medical doctor who we do anticipate who we'll call in the case as an expert witness. I will request that Your Honor
allow him to stay in the courtroom so he may aid counsel in their examination of the cross-examination.
THE COURT: Is there any objection, Ms. McClure?
MS. McCLURE: No, Your Honor. In fact, I think the rule, Rule 615, exclusion of witnesses allows for experts to be included in the court hearing process, and I
will also have an expert witness that will be present.
THE COURT: Who is --
MR. FRIEDMAN: It's Dr. Khoshoo.
THE COURT: How do you spell his last name?
MR. FRIEDMAN: If Your Honor please, do you want to spell your last name for the record?
DR. KHOSHOO: K-H-0-S-H-0-0.
THE COURT: And your expert, Ms. McClure?
MS. McCLURE: Dr. Suzanne Sterling and Dr. Barnard.
THE COURT: Let's go ahead and clear the courtroom except for the parties. The rule is being invoked, which everyone needs to know, means that you cannot talk
about this case in the hall. You cannot talk about the questions that were asked, you can't talk about your answers, and you're under that restriction for the length of
this preliminary hearing. We're going today from one to four o'clock, which is the time that was scheduled, and we'll stop at four o'clock. If we're not finished, we'll
have to reschedule. I do want everyone to know this is a preliminary hearing. All that I am hearing today, and I'm going to hold you very closely to that, is whether
or not the State had a reasonable belief that Munchausen is reasonably the diagnosis for this mother and that the child was in harm if they did not take custody. And
those are the only two issues. I don't expect to have more than one witness on each of those facts. The standard of proof is different. It's not clear and convincing
evidence, and this is a preliminary hearing. We will have a full trial in October where there will be many, many witnesses and we will get all the information to decide
whether by clear and convincing evidence if this is a neglected and dependent child.
Any preliminary matters before the witnesses are excused?
I'm going to ask everyone to step out in the hall except Ms. McClure's first witness.
MS. McCLURE: Your Honor, Ms. Luster and I are co-counsel in this case. She'll make an opening statement and she'll be examining the first witness.
MS. LUSTER: The first witness will be Dr. Polk.
THE COURT: Well, let's go ahead. The doctors may stay in the room. Everyone else will just step out. The mother and father may stay in. Everyone else should
step out now.
MR. FRIEDMAN: Your Honor, the others, there are two who likely will not be a witness at this stage. They may be a witness in the trial of this matter.
THE COURT: It's a closed hearing and unless all the parties agree those people should be in, there will be no provision for people to stay in. If all the parties agree,
the courtroom can be full as far as I'm concerned.
MR. FRIEDMAN: Well, Your Honor please, very well. This is the grandparents, the maternal grandparents and they did travel from Memphis, or actually, from the
state of Mississippi to be present.
THE COURT: Are they possibly going to be a resource for placement if indeed the Court should find at some time that the child cannot return to the parent?
MR. FRIEDMAN: Your Honor, I certainly wouldn't want to eclipse this Court's discretion in considering the grandparents or anyone else as a resource if that
became necessary.
MS. LUSTER: Your Honor, at this point, the State's position would be that they would not be an appropriate resource, at least not at this time, based on some
statements the mother's made, based on some correspondence we've received.
THE COURT: Do you have an objection to the grandparents staying in the courtroom? I would think there is some advantage of family hearing testimony.
MS. McCLURE: I don't anticipate there's much of a problem with that, Your Honor, except for this. The grandmother has sent correspondence to the Department
and to Vanderbilt and we're going to specifically - we're going to exclude them as relative resources or less drastic alternatives. So --
THE COURT: I don't know that that's a reason for them not --
MS. McCLURE: Having said that -THE COURT: The grandparents may stay in. The folks on this side are who, Ms. McClure?
MS. McCLURE: This is Vickie Bradley.
This is --
MS. HOUSE: I'm Jean House, a student.
MS. LUSTER: She's interning with the Department right now, Your Honor.
MS. McCLURE: This is Dr. Barnard.
THE COURT: Let's make very brief opening statements.
OPENING STATEMENTS
MS. LUSTER: Your Honor, this is a case of Munchausen Syndrome by Proxy in Phillip Patrick who is not quite one-year old who has spent approximately 10
months of his life in one hospital or another undergoing various procedures. The Department is not here to argue that Phillip does not have some legitimate
diagnosable medical problems, and we'll hear briefly today what those are. However, we are here because of infections and fevers which have run rampant through
Phillip's life that keep him from feeding, from growing and, in essence, stripped his intestines of their ability to function properly.
Parents, as any parent would, are concerned. Any parent might question the procedures, ask doctors to try other things, but these parents have gone beyond that
beginning with the Children's Hospital in Philadelphia when the mother spent time alone to bond with her child and then the doctors discovered that a head wrap
following some cranial surgery had been moved aside, sutures had been spread and subsequently to that, Phillip developed one of his early infections. The mother
admitted to the hospital staff in Philadelphia that she continued to replace portions of his formula with cornstarch in direct contradiction to medical advice and, more
importantly, stated that the staff was not supporting her and --
MR. FRIEDMAN: Your Honor, I guess I'm going -- I don't generally object in opening argument, but counsel has designated to the Court who was present. Unless
counsel has basis for introduction of testimony concerning Philadelphia other than counsels statements, Your Honor please, I must object most respectfully. If there's
someone from Philadelphia to testify so that there is a predicate for these opening statements, I think that would be proper. If there is not, these conclusory
allegations of counsel based on absolutely unverifiable hearsay, Your Honor please, are not appropriate and I would hope --
THE COURT: Ms. Luster, your response?
MS. LUSTER: Your Honor, as the Court is well aware, in the preliminary hearing reliable hearsay is allowable, that it will be introduced through Dr. Polk, that he
contacted Philadelphia, the hospital where Phillip was staying, that as a result of his contact he was forwarded a discharge summary from Philadelphia that was
prepared by the doctor there.
THE COURT: Dr. Polk is an expert witness?
MS. LUSTER: Yes.
THE COURT: He is allowed to testify based on the information that's been presented to him as long as it's reliable. Certainly medical records forwarded from
Philadelphia are reliable. Go on. Thank you. But let's not waste a lot of time. I want to hear the facts and we have three hours to hear them.
MS. LUSTER: Certainly. What you're going to hear, again, that the mother again at that early stage was taking it upon herself to treat this child, again, against direct
medical advice. The mother then took the child to Oschner and from there she brought him to Vanderbilt for a second opinion. After a few weeks, he began
showing some improvement, and the mother was approached, well it's time to discharge him, take him home, and she then asked the medical staff, "Well, why aren't
you treating him prophylactically for infection?"
There was no reason to. There was nothing to support an infection. But yet, suspiciously, a few hours later he
develops a fever and has an infection. And the problem with that infection, and
all of the infections but one that he has had, is that they're multiple organism
infections. And, Your Honor, you will hear from the medical experts how extremely unusual it is to have these consistently multiple organism infections.
Why the sudden -- the need for the emergency? Why on September 6th did the State feel there was a need to remove this child? What you'll hear is that the
mother's been consistently telling the medical staff, "Oh, people have suspected me of Munchausen's. I've been investigated for Munchausen's." No one had done
that, Your Honor. No one had done that at all at these other hospitals, despite her constant saying that that had happened. However, what you will also see is a
letter that the parents sent out, prepared by the father and the mother together, they sent it out all over the country saying please help us help our child. And what
you're going to find out is that experts from around the country that the mother solicited contacted Vanderbilt and said this is Munchausen's.
MR. FRIEDMAN: Your Honor, again, I must object about experts around the country
THE COURT: Ms. Luster, let's save this for the trial. I want to know why the Department felt there was eminent harm. You believe the mother is --
MS. LUSTER: That is part of what has prompted the meetings that led up to the removal was they're getting calls based on the mother's sending out this letter.
THE COURT: I understand.
MS. LUSTER: Vanderbilt didn't seek out these people. On the 4th, an emergency meeting of the child abuse team at Vanderbilt was called to discuss this case.
They're trying to give the mother every benefit of the doubt. They want to get a couple more records. However, the child's condition worsened --
MR. FRIEDMAN: Your Honor please, again, I object to editorial statements in opening argument and gratuitous and self-serving statements. Your Honor is
looking for facts which justify the petition, the emergency removal, and, as I understand -
THE COURT: What I think I'll do is we just won't have opening statements. Let's go forward with the first witness. Thank you. Dr. Polk, please. Step up, please.
DAVID BRENT POLK M. D.
was called as a witness, and testified as follows:
DIRECT EXAMINATION
QUESTIONS BY MS. LUSTER:
Q. Could you state your full name and place of employment, please.
MR. FRIEDMAN: Your Honor, I believe this gentleman came in after Your Honor swore the witnesses.
THE COURT: Oh, I'm sorry. He did. I apologize. Thank you.
(WHEREUPON, the witness was sworn at this
time.)
BY MS. LUSTER:
Q. Could you state your full name and place of employment?
A. my name is David Brent Polk. I'm employed by Vanderbilt University School of Medicine.
Q. How long have you been employed there, Dr. Polk?
A. Since August of 1990.
Q. Now, Dr. Polk, I'd like for you to review, if you could, for the Court your background, and at this time I'd a provide a copy of Dr. Polk's curriculum vitae to
the Court for use while he is testifying.
THE COURT: Let me ask again, because it is a preliminary hearing, whether or not there is any objection to Dr. Polk being classified as an expert in his field?
MS. LUSTER: It's pediatric gastroenterology, Your Honor.
THE COURT: Is there any objection?
MR. FRIEDMAN: Your Honor please, I'm sure counsel will provide me with a copy of the curriculum vitae.
MS. LUSTER: I gave an entire set of the exhibits, I think it's towards the bottom of that stack.
THE COURT: Let me say there's nothing that is more disruptive in the courtroom as to have counsel yammering at each other. You have a set of exhibits that have
been provided. Ms. Luster, if you'll call out what exhibit you're getting ready to refer to. Let me give you a minute to look at that and see if you have an objection.
MR. FRIEDMAN: Your Honor, I will try to direct my remarks to the Bench, not to side bar with counsel. I try to do that. I might tell the Court just prior to the
Court's entry into the courtroom, counsel provided us with a stack of papers and said, "These are my exhibits."
THE COURT: Would you like five minutes to look through those?
MR. FRIEDMAN: Your Honor, I will try not to delay the limited proceedings of this Court, the limited time this Court has. I do have the curriculum vitae of Dr.
Polk and Your Honor please, for the purposes of these proceedings, I don't see a reason to voir dire this man as to his expertise in his stated area of expertise.
THE COURT: Thank you. Dr. Polk, you are qualified as an expert in the field of pediatric gastroenterology. I have your curriculum vitae, which is Exhibit 1. Ms.
Luster, go forward.
(WHEREUPON, the curriculum vitae was admitted into evidence as Exhibit No. 1.)
MS. LUSTER: Thank you.
BY MS. LUSTER:
Q. Dr. Polk, in your capacity at Vanderbilt, have you -- or could you tell the Court how you became involved in the case of Phillip Patrick?
A. I'm an attending pediatric gastroenterologist and there are four of us attending pediatric gastroenterologists in the division. we rotate months on clinical
service, and the month -- every fourth weekend of call. My first acquaintance was a weekend of call prior to my coming on service as the attending physician, and
the date of that was Tuesday, the 4th of -it's actually the 3rd of September.
Q. What was the purpose of you specifically becoming involved at that point?
A. He had been admitted to the pediatric gastroenterology service at Vanderbilt in July the lst of this year and remained hospitalized and the GI service had been
the attending service throughout the time except the time when he was in the intensive care unit, during which the intensivist are the attending physicians.
Q. Now, Dr. Polk, as a part of your treatment of Phillip Patrick, have you reviewed records, various medical records?
A. I have. Mr. and Mrs. Patrick, my understanding, has provided a list of the medical records from Children's Hospital of Philadelphia as well as some records
from LeBonhuer Hospital in Memphis and then a set of laboratory values from Oschner Medical Center. I did not have access to the full medical record from any of
those facilities.
THE COURT: You have simply, Doctor, what the parents provided to you. Is that correct?
THE WITNESS: Yes, and I did review those in answer to your question.
THE COURT: Has there been any effort by Vanderbilt to get a total set of records from each of the hospitals?
THE WITNESS: I requested from Mrs. Patrick consent to obtain those records from Philadelphia, and they have complied. Since that time, we have not been able
to obtain records from LeBonheur Medical Center nor have we been able to obtain records from Oschner Medical Center.
THE COURT: But you sent out the request to each of those?
THE WITNESS: I think DCS may have requested them.
THE COURT: Do you know that Vanderbilt did?
THE WITNESS: I only know what Vanderbilt did.
THE COURT: And you have gotten the records from Philadelphia --
THE WITNESS: And that's the only records.
THE COURT: You have not requested from the other two hospitals?
THE WITNESS: Right.
MR. FRIEDMAN: Your Honor please, based upon that, I would move in limine that the testimony that this man is allowed to give, this physician is allowed to give,
is based upon those medical records of Vanderbilt, that he not be allowed to testify on the basis of the partial medical records from other places where he has
admittedly not reviewed the entire medical records or pertinent medical records from other facilities.
THE COURT: Let me determine from the doctor what -- you received a full set of records from Philadelphia?
THE WITNESS: Philadelphia. There were laboratory values from -- again, from LeBonheur and from Oschner that I was able to review.
BY MS. LUSTER:
Q. And, Dr. Polk, let me also ask you, did you at some point have a conversation with Dr. Khoshoo regarding obtaining records on Phillip Patrick?
A. I spoke with Dr. Khoshoo at Oschner on the occasion at which he called Mrs. Patrick in the intensive care unit after DCS had taken custody. I had about an
hour-long conversation with him.
THE COURT: And you relied on that conversation to give the testimony you're prepared to give today?
THE WITNESS: Only very minimally. It was not pertinent in moving to have concerns about Munchausen's by Proxy.
THE COURT: I'm going to allow him to go forward with designating exactly what records he would be -- do you have those records with you?
THE WITNESS: I do.
THE COURT: And you'll make those available so that counsel can look at those and be aware if there's anything else that you want to submit. For the purposes of
the preliminary hearing, I'm going to allow him to go forward.
MS. LUSTER: Thank you, Your Honor.
BY MS. LUSTER:
Q. Dr. Polk, did you, as a result of reviewing the records, prepare a summary essentially setting out the pertinent dates and conditions from 11-24-95 through
2-13-96 of Phillip Patrick in terms of treatment -
MR. FRIEDMAN: Your Honor.
MS. LUSTER: -- and problems that he has suffered?
THE WITNESS. I did.
MR. FRIEDMAN: Your Honor.
THE COURT: One moment.
THE WITNESS: I did.
THE COURT: Yes, sir.
MR. FRIEDMAN: Your Honor please, again, first of all, the witness is here to testify. Second of all, preparing a summary based upon partial records which he
acknowledges as partial records I don't think helps Your Honor --
THE COURT: I will decide that. I appreciate that. The objection is overruled. I'll consider it based on what he said. I want to hear what he has to say. I will
determine the weight I give to that information --
MR. FRIEDMAN: Very well, Your Honor.
THE COURT: -- at that time. Thank you.
MS. LUSTER: Your Honor, at this time, what I would offer is a brief summary that will assist the Court in following Dr. Polk's testimony.
BY MS. LUSTER:
Q. Dr. Polk, if you could, what I'd like for you to do is, first of all, Phillip does have some clearly diagnosable medical conditions. Is that correct?
A. Yes, he does.
Q. And, if you could briefly, what are those problems?
A. He has craniosynostosis, which is fusion of the skull bones, and he was born with this. He has malrotation which has been
surgically repaired. Again, this is a congenital problem with which he was born. At that time, he was noted to have a Meckel's diverticulum, which is another congenital malformation of his intestine.
That was resected, removed at the time of his surgery for his malrotation. He has a gastrostomy tube, which is a tube going from the outside the body into the
stomach and he has a Nissen fundoplication, which is a surgery to prevent, regurgitation of acid contents into the esophagus. He also has had evidence of pulmonary
edema for several months and it's been unclear why he has this. He's been diagnosed with
mild cardiomegaly in the past and documented on x-ray as well as
echocardiogram. He has vesicoureteral reflux or reflux of urinary contents back into the ureters towards the kidneys. He has hepatomegaly which is an enlarged
liver and that is not a clear etiology. And also has enterocolitis, which is inflammation in the small intestine as well as in the colon.
Q. Doctor, what then are the -- what are the problems that Phillip has that are suspicious or particularly concerning to you given your examination of his records
and of him as well and tests that have been run?
THE COURT: Objection?
MR. FRIEDMAN: Yes, Your Honor. He has suspicions. He can articulate what he's investigated and the results he's found. He's here to give an expert opinion as
a gastroenterologist, not as a detective. if Your Honor please, I think that he can say what he saw and observed and what he did based upon that in this field. I don't
think he can give his suspicions. I also don't think suspicions are the tests that Your Honor is considering because I don't think that's the law of the state.
MS. LUSTER: Your Honor, if I may -
MS. LUSTER: -- I'll substitute the word unusual for suspicions then.
BY MS. LUSTER:
Q. What did you find that you --
MR. FRIEDMAN: Your Honor
MS. LUSTER: -- considered concerning to you?
MR. FRIEDMAN: Excuse me. I don't mean to be inconsiderate to counsel. What he finds unusual or concerning, he can state a set of facts. She qualified him and
we stipulated for purposes of this hearing we would not challenge his expertise as a gastroenterologist. He can state what he saw and observed, but not his
conclusions, or whatever. I understand counsel has an expert who saw the child who's going to give that testimony. I don't wish to stipulate that this gentleman is an
expert on everything or as a detective.
THE COURT: I'm not sure I'm understanding your objection. The question to Dr. Polk is what concerns him about this child and the problems that he's observed in
his expertise, and I'm going to allow him to answer that question. So overruled to that point.
MR. FRIEDMAN: May I also ask that counsel assist us in telling us what document she passed to the Court because we can't seem to discern that.
THE COURT: It's a two-page -- it starts 11-24-95.
MS. LUSTER: It's towards the bottom -it was towards the bottom of the stack. It was stapled together with a total of five pages, but I've taken the top two. It says
Phillip Patrick. It's 11-24.
MR. FRIEDMAN: I'm sorry, Your Honor. We haven't located it yet.
THE COURT: If you'll pass that to him so he can look at that.
MR. FRIEDMAN: Now we have it.
THE COURT: Ms. Luster, if you'll hold up each document before you go forward.
MS. LUSTER: Certainly.
THE COURT: I'd like to hear this witness.
BY MS. LUSTER:
Q. If you could, Dr. Polk, what have you found that is significant to you at this point?
A. May I began with a review of the documents from Children's Hospital of Philadelphia?
Q. Certainly.
A. In looking through the documents, I ascertained the number of physicians that had taken care of him and called to speak with those physicians at Philadelphia to
find out what their treatment of him had been. At this point, we had been told by several of the nurses taking care of Phillip that
--
THE COURT: Sir, this witness is an expert. He's testifying as to what he did. It is admissible as an expert that he can testify as to hearsay, as to information that
would not otherwise be admissible into court. Is there some different objection than that?
MR. FRIEDMAN: I do understand the parameters --
THE COURT: What is your objection?
MR. FRIEDMAN: Your Honor please, my objection is this. The question is the reliability of hearsay. The question is also our ability to cross-examine if you find
the hearsay reliable, to cross-examine this witness in regard to his testimony. Now, when we say "I called up some nurses and they said," that's the basis of my
objection. There's no reliability indicia. And second of all, Your Honor please, it limits our ability in any manner to cross-examine this testimony just like the same
thing of using a partial record. I went through --
THE COURT: It's just like when any expert testifies as to what they have done and who they have talked with and the records they've reviewed. This witness is
going to be allowed to talk today at this preliminary hearing about the information he gathered and his conclusions from that information. You may decide that you
want to adjourn after his testimony and fly in the doctors from Philadelphia, or your expert may want to talk to the experts in Philadelphia. His testimony is not going
to be limited based on what he's told me -- or is trying to tell me he's done, which is he's talked to the doctors in Philadelphia.
MR. FRIEDMAN: What I was making the objection to is what they said. He can say what he did and what he decided and what he based it on, but if he starts
saying what he was told, Your Honor please, that's what I'm calling to Your Honor's attention. I have no problem with --
THE COURT: I understand what you're calling to my attention. Ms. Luster, is there anything you want to argue in response to that?
MS. LUSTER: Well, Your Honor, first of all, the facts are that -- I mean, again, as the rule says in terms of basis of an opinion, the facts you have may be those that
are perceived or made known to the expert. There's nothing in the rule that says he cannot say what those facts are --
THE COURT: Exactly right.
MS. LUSTER: -- including statements. Further, a preliminary hearing in Juvenile Court, reliable hearsay is offered, is allowable and I think if we can ask the question
of Dr. Polk and I'm perfectly happy to. Dr. Polk, are these nurses people that you've spoken to, people that you routinely rely upon to get information on which to
base your opinions?
THE WITNESS: Yes, they are.
THE COURT: What I would like to do now is I have ruled the last time on the objection regarding the reliability of Dr. Polk's contacts with the doctors in
Philadelphia. I'm going to allow him to talk to me about what he was told, the conclusion he made from that and I will go forward. Now, if there's a different
objection that relates to someone else, certainly, I would expect you to make it.
MS. LUSTER: Thank you.
BY MS. LUSTER:
Q. Doctor, if you could.
A. The purpose, again, in my call to talk with the physicians there was, again, as is documented in his medical record at Vanderbilt. Mrs. Patrick had informed
nurses that he had -- she had been accused of Munchausen's by Proxy in Philadelphia, at Children's Hospital of Philadelphia, and I wanted to call and find out if that
was the case. I spoke first with Dr. Judy Bernbaum who was the predominant attending neonatologist while at Children's Hospital of Philadelphia, and she revealed
to me that there were concerns that Mrs. Patrick was always insistent on having curtains drawn to the exclusion of the nursing and medical staff.
She went on to describe to me an incident which I had read in the medical record that occurred on the 24th of November of 1995. The nursing note says that the
head bandage fell off, and I asked Dr. Bernbaum about this. She said that they were concerned because the head bandage, he had just had his surgery on his skull
and that the head bandage fell off, after two days with a
predominant amount of bleeding, and Dr. Bernbaum described this as, and I'm quoting.
"Mrs. Patrick came running out from behind the curtain,
blood all over the place," end quote. The neurosurgeons commented to her at that point that they had never seen this happen
before. And over the next several days he required multiple stitches, as are documented in the chart, and multiple
resuturing to this area of his skull.
He did improve over the next several
days.
Then 10 days later he developed an infection on the left side of his scalp, growing four organisms: staph coag -- staphylococcus coag positive, an
enterococcus, a citrobacter and a klebsiella oxytoca, all of which, Your Honor, are organisms predominantly found in the stool and
not located on the external surface of the skin.
THE COURT: And that was found on the left side of his head.
THE WITNESS: Yes.
THE COURT: The infection.
THE WITNESS: Inside the wound on the left side of his head. Over the course of the next few days cultures were obtained on the 8th of December from the right
side of his head because that area had begun to open, and from this area they cultured, again, a staph coag positive and klebsiella oxytoca, and from the -- so that,
again, there was an occurrence of stool organisms on his scalp.
On the 12th of December, the infection had progressed to the point where they determined to
treat this as a bone infection.
I'm going to -- he had surgery on the 15th of December for his malrotation and the Meckel's diverticulum, and at that time they did the Nissen fundoplication and
gastrostomy tube placement that I alluded to -- that I've stated earlier.
BY MS. LUSTER:
Q. And what does that involve, Doctor, if you could, briefly, the tube placement?
A. It involves placing a tube from the inside of the stomach to the outside of the skin. It's --
Q. What's the purpose of that tube?
A. It's to allow for feeding of nutrition and also to allow for venting if the stomach has extra gas in it so that you're able to feed a patient pretty much around the
clock.
On the 20th of December, the neuro -- or the surgeons rounded and felt that the incision site looked very good and the NICU team rounded again at one-thirty that
afternoon and said that the site looked very good. By eleven-thirty that
night, it was described in the nurses, notes as "bulging, red and leaking
fluid," and then by the morning the gastrostomy tube had fallen out, and it was described clearly in the nurses' notes that this was, at the time that a nurse was attaching tubing, but -- there
was a culture of this site growing staph coag negative, enterococcus and klebsiella, again, stool organisms growing from the stomach wound,
which is not common.
Q. Would that be the case even though that this was not the head? We're talking about the stomach or intestinal region.
A. Yes.
Q. Is there any difference there in terms of the commonality of that?
A. It would be a little more common on the abdomen than it would be on the scalp.
Then he developed an abscess of his abdominal incision, which is a different wound than the gastrostomy tube, and that also required drainage and surgical repair of
an abscess.
On the 5th of January, '96, Mrs. Patrick stated concern about his abdominal wound and crusting and erythema, or redness, to that area. I'm reading. It's
documented by the nurses. And that site was cultured and again growing another infectious organism, this time staph coag positive. There are multiple consults
requested through here that may not be pertinent at this point, but I can read over them if you wish.
Q. No.
A. On the 9th of January, the discharge planning nurse began discussing with Mrs. Patrick the plans to discharge Phillip. The following morning the house staff
was called to see him, describing him as having developed diaphoresis, which is sweating, and elevated heart rate, fever, and at that point a blood culture was
obtained which was growing staphylococcus from the blood. The nurses' note said that Mrs. Patrick gave Phillip Tylenol without nursing permission at that point and
that he continued to have fevers throughout the remainder of his hospitalization were noted.
On the 16th of January, he was noted to have low serum sodium, low salt in his blood, and the feeding source at that time was breast milk with added supplement
added to the formula.
On the 22nd of June -- I'm sorry -- of January, the planning team which plans the discharge summary had suggested a meeting to help Mrs. Patrick develop coping
mechanisms and help stress limits regarding Philip's care. At that point, he was started on antibiotic for possible aspiration pneumonia.
On the 24th of January, they found coffee ground material and fresh blood from his gastrostomy tube site and he underwent an upper GI --
THE COURT: Doctor, you lost me on where they found coffee ground material --
THE WITNESS: I'm sorry. That was on his clothing and in the gastrostomy tube itself. When they pulled the bag from the tube, there was -- and that's evidence of
blood or medical description for evidence of blood in the intestine or in the stomach.
BY MS. LUSTER:
Q. What is the description of that. Is that the coffee ground material?
A. It's coffee ground material and fresh blood was the description from the gastrostomy tube.
THE COURT: Doctor, you need to talk with me about that as to what significance that had, whether fresh blood could be in the tube for some other reason other
than someone placing the blood there?
THE WITNESS: There are two possibilities. one, the tube had been manipulated causing irritation inside or it is possible that he could have had just irritation on his
own without someone specifically manipulating it. Or the second possibility would be from someone having placed blood there.
THE COURT: Is there any conclusion drawn by the doctors --
THE WITNESS: There was not.
THE COURT: -- who treated -- so those were the possibilities as it could -- as to the coffee grounds. Is there any--
THE WITNESS: That's the medical description for old blood.
THE COURT: Old blood, I see,
THE WITNESS: Sorry.
THE COURT: You need to be very specific.
THE WITNESS: I will be.
THE COURT: I thought we were really talking about coffee grounds.
THE WITNESS: No; sorry. On the 9th of February he underwent a milk scan, which is a radio labeled scan where a patient is given formula with an isotope,
which is a radioactive material, to detect how quickly the food in the stomach empties. At that point, he was described as having a rapid emptying of his stomach,
and Mrs. Patrick told the physical therapist, it's documented in her note, that she was right about quote, dumping, which is a symptom of rapid emptying of the
stomach along with several other factors and that the medical team was wrong.
During the period after his surgery from the gastrostomy tube and the Nissen fundoplication, which again was the surgery to prevent reflux of acid
up into the
esophagus, repeatedly, Mrs. Patrick had approached the medical staff, as documented in the chart,
about starting medications to prevent him from having a reflux
which the surgery was to have corrected. He underwent -- at the time of his milk scan they saw no evidence that he was having this reflux, and then he also
underwent a study called a pH probe where a tube is passed into the esophagus to determine if, in fact, the reflux is occurring, and that was negative and
did not
show any evidence of reflux.
Then from my perspective the most concerning aspect of this chart was a note entry on the 13th of February, 1996, which came from Children's Hospital of
Philadelphia, after Mrs. Patrick had agreed to allow them to send us the records. This was not in the initial records that we had received from the Patricks. May I
read from that?
THE COURT: Yes.
MS. LUSTER: Your Honor, at this time, we would offer -- it's a three-page typed heading that's Children's Hospital of Philadelphia, dated Tuesday, 2-13-96,
begins date and time 4:00 p.m. It's a two and-a-half page note from Dr. Judy Bernbaum. it has 2-13-96 at the top.
(WHEREUPON, there was a discussion looking for the document.)
BY MS. LUSTER:
Q. Dr. Polk, if you could, then, referring specifically to portions of that document.
A. May I begin with the paragraph, "At the request of Mrs. Patrick, Dr. Solarin had a phone conversation with Dr. Khoshoo who was the lead author of an article
about dumping syndrome. Apparently, Mrs. Patrick had spoken to Dr. Khoshoo over the weekend and was given suggestions on how to manage Phillip if he did
have dumping syndrome. Dr. Solarin's conversation with Dr. Khoshoo, however, revealed that he did not give Mrs. Patrick any such suggestions and questioned
whether he really did have anything to suggest dumping syndrome. He stated that if sugars were tested pre and post prandial blood sugars and found to be normal
that this is unlikely -- that is unlikely that his symptoms of sweating and irritability represent dumping syndrome." He agreed with us that the sweating episodes
appeared to be directly related to his fevers. This concurs with the opinion of our GI department, or gastroenterology department, who feels that none of Phillip's
symptoms suggest dumping syndrome. As we had mentioned earlier, I reviewed with Mrs. Patrick that we have extensively worked Phillip up for underlying
etiologies for his intermittent fevers and have found no source suggesting therefore that his fevers are of central origin.
Q. What does that mean?
A. That would mean related somehow to his brain function. The nurses have documented that his sweating is, in fact, associated with periods of high fevers. In
addition, they've done several dextrosticks, glucose blood sugar checks at the time of his sweating episodes, all of which have been well within the normal range.
Mrs. Patrick recalled two episodes when his dextrostick, the blood sugar sticks that are checked at the bedside, was 40 earlier in his
hospitalization. However,
when this was found, a venous blood sample was obtained immediately and sent to the lab for confirmation and both times his sugars were found to be in the normal
range. This is of importance since the sweating episodes associated with dumping syndrome are caused by hypoglycemia seen in dumping syndrome. The
recommendations that are listed in Dr. Khoshoo's article which includes adding cornstarch as a carbohydrate source along with fats did not appear to be indicated at
this time. Mrs. Patrick still felt that this was an appropriate treatment. However, I did review with her the downside of using such an approach, including but not
limited to the potential association of hyperglycemia or high blood sugar with a high carbohydrate load and the longer term implications of not being given adequate
protein in his formula since the cornstarch replaces an equal amount of powdered formula which is balanced in carbohydrate, protein and fat. Mrs. Patrick then
admitted to me that she has given Phillip cornstarch, substituting two scoops of cornstarch initially and then subsequently one scoop of
cornstarch in lieu of his powdered formula since last Saturday night without informing the staff of her actions. Andrea, Phillip's primary care nurse, was with me at the bedside during this
discussion. we alerted her to these actions being both against hospital policy and not in Phillip's best interests and that we could not support this since it was not an
indicated treatment for Phillip. We again reviewed the potential dangers. She was visibly upset at our not agreeing to her approach and, more importantly, not
supporting it and making the appropriate changes in his orders. Mrs. Patrick stated that she did this behind our backs, in quotes, because we had not, quote,
supported her in taking care of her baby, end quote. I informed her that we have always considered her part of the, quote, team and listened to her concerns and
incorporated changes in management as appropriate. This was practiced many times during Phillip's hospitalization. Once again I reviewed that her approach was
not indicated since Phillip did not have signs or symptoms of dumping syndrome and that there were both short and long-term implications in this approach. She
refused to listen to this explanation and stood firm in her decision to treat Phillip as she was planning to at home hoping that we would be able to observe him while
still in the hospital with this type of treatment. She then went on to list many of the times that she felt doctors and nurses did not listen to her and became hostile to
her feeling that their frustration led to their hostility. She felt that no one was listening. However, I reviewed how time and time again repeat tests and new tests were
performed to answer questions that she raised about Phillip. She would not acknowledge that we have listened to or responded to her concerns
during Phillip's entire hospital course. She was convinced that after beginning adding cornstarch to Phillip's diet that he was visibly improved with decreased sweating and
decreased irritability. Andrea, who has been taking care of Phillip for quite a while as his primary nurse, did not notice any difference in his sweating or irritability and
was blinded, in other words, was unaware of the fact that this change had occurred. When Andrea refuted Ms. Patrick's observations of Phillip, Mrs. Patrick
accused Andrea of not being supportive of her as a mother who is, quote, trying to do the best for her son, end quote.
MR. FRIEDMAN: Your Honor, if I might assist the Court based on the Court's ruling. If he simply wants to say he utilized this information and considered it and
pass it forward to the Court, I think that would save us reading over and over from medical records. I take he's accepted that's his testimony. That seems to be
able to stay within the bounds that Your Honor set for this hearing as to the occurrences that were considered and led up to the taking of this child on September
6th, 1996, as opposed to reading all the February 1996 records of another hospital. If that would be helpful to Your Honor, we would agree to the doing of that.
THE COURT: Doctor, I appreciate your reading it out loud, but I have read it as you're reading as well. What's the next question, Ms. Luster?
I believe you said, Doctor, that you were concerned because this document was not given to you by Mrs. Patrick although she gave you all the other -- I don't know
all the other, but gave you records from Philadelphia, that this was not in there. You got this after she gave permission for you to go directly to the hospital,
Children's Hospital, and get the record. Is that right?
THE WITNESS: Yes. This is correct.
THE COURT: Can you explain to me why that concerns you?
THE WITNESS: The most concerning fact is in the last paragraph, "at which point she indicated that there were many things that we were not aware of she did
during Phillip's hospitalization in an attempt to, quote, help him gain weight. When asked to detail them, she was vague but said that she made sure he got 28 calories
per ounce even though the doctors did not feel he needed this amount. She did not elaborate on how she did this but made it clear this was one of many times that
she had, quote, adjusted his treatment that was prescribed by doctors."
BY MS. LUSTER:
Q. Why is that a particular concern, Doctor?
A. That's concerning because as a physician and as a care giver, you have no way whatsoever of knowing what treatment your patient is receiving, and then any
observation you make based on your presumed treatment is invalid.
Q. Dr. Polk, again, approximately what date, or do you know exactly, did you receive that document?
A. It was faxed to our office on September the 6th at one o'clock.
Q. Doctor, what else that occurred either in your review of the records or in your dealings with Phillip or his family that was concerning to you and went into your
diagnosis in this case?
A. There were --
MR. FRIEDMAN: Your Honor, I'd just point out to the Court the doctor needs to give a diagnosis that he's made before he supports that --
THE COURT: She'll be glad to ask that question.
MS. LUSTER: Certainly.
MR. FRIEDMAN: Thank you, Your Honor.
BY MS. LUSTER:
Q. Doctor, have you made a diagnosis in this case?
A. The diagnosis is Munchausen's by Proxy Syndrome.
Q. Thank you. And can you say that to a reasonable degree of medical certainty?
A. Yes.
Q. What went into your diagnosis of Munchausen's Syndrome by Proxy other than this statement that you've just reviewed?
A. A collection of inconsistencies in the medical report as given by Mrs. Patrick, the precipitous nature in which he developed infections and profuse diarrhea
requiring transfer to the intensive care unit at times when he was planned -- when discharge plans were discussed with Mrs. Patrick, which is a common pattern in
Munchausen's by Proxy Syndrome. The fact that Mrs. Patrick admitted altering his medical therapy without the physicians, awareness, and there were several
precipitating events that occurred which compelled me to become concerned about this on Friday afternoon, the 6th.
Q. Again, Doctor, you prepared this --
A. I did.
Q. -- and in putting together and reviewing your notes a list, two pages of a list of those precipitating events. That was attached to the first two pages listing the
dates. There was a total of five pages that were stapled together in your package. This is the last two pages of that which says precipitating events.
THE COURT: This is a summary you prepared for me based on a review of the records and your knowledge of this case?
THE WITNESS: Yes.
BY MS. LUSTER:
Q. And if you could, Doctor, then, in a little more detail for the Court go over those events and why they led you to your diagnosis and to the recommendations
with regard to the removal of Phillip Patrick?
MR. FRIEDMAN: Your Honor, again, I just -- I understand what the Court said at the beginning as the parameter of this.
THE COURT: Let me say an expert is here to assist the Court.
MR. FRIEDMAN: Yes, ma'am.
THE COURT: I'm not a doctor, and I'm going to allow him to assist me just as I'll allow your expert to assist me, and the question, as I understand, is to elaborate
some on these sentences, and that would be helpful to the Court.
MR. FRIEDMAN: Very well.
THE COURT: Go ahead.
THE WITNESS: One of the concerning things about Munchausen's Syndrome by Proxy is the parent -- usually the mother seeks out multiple medical facilities for
treatment of the child, and Mrs. Patrick began discussing plans with the staff, with the attending GI service at Vanderbilt and with the physician Dr. Hyman, at UCLA
the possibility for transferring him yet to another medical facility to be evaluated for yet another possible diagnosis intestinal pseudo-obstruction. So it was
concerning that at this point Mrs. Patrick was about to take Phillip to yet another medical facility to undergo numerous other tests.
THE COURT: Doctor, I believe if I'm following you, I got a little off is that this is what happened on Friday that caused you to take whatever action you took
regarding the Department. Is that right?
THE WITNESS: Yes.
THE COURT: Is my understanding okay? And you've gone through why you believe your diagnosis is supported and now you're giving me the additional facts, and
one of those was seeking UCLA when he was discharged -if he was to be discharged from Vanderbilt. Is that correct?
THE WITNESS: Yes.
THE COURT: Did she indicate to you at the time that she planned to check him out of Vanderbilt?
THE WITNESS: No.
THE COURT: What did she say to you about her plans?
THE WITNESS: She did not say this to me. I spoke with the doctor at the attending service at UCLA. She told this to the other pediatric gastroenterology
attending --
THE COURT: In your practice?
THE WITNESS: Yes.
THE COURT: And, again, I want to understand. The fact that she called UCLA is one fact; whether or not she planned to move him there, do you have any
information about that?
THE WITNESS: I do not.
THE COURT: All right. Go ahead Ms. Luster.
BY MS. LUSTER:
Q. Let me ask. You did talk with Dr. Hyman from UCLA?
A. My partner, Dr. Barnard, spoke with him, as did my partner, Dr. Karen Crissinger.
Q. As a result of those conversations, was there an indication in the record that there was -- that that was the reason for contacting UCLA?
A. Yes.
Q. Did you get any --
A. There was some background on Dr. Hyman in that Mr. and Mrs. Patrick had prepared a multi-page letter that they had sent out to pediatric
gastroenterologists and to possibly other physicians around the country which -one of the recipients of which was Dr. Hyman.
Q. Approximately when did that letter go out? Do you know?
A. The date that the faxed copy was received in our office was the lst of August, 1996.
MS. LUSTER: If I can, I would offer that to the Court at this time.
THE WITNESS: We received phone calls from physicians in response to the letter that the parents had sent out. These were unsolicited phone calls, one of which
was Dr. Hyman at UCLA who Mrs. Patrick had contacted about bringing Phillip there for care. Dr. Hyman, among all of the other physicians who contacted our
office, were very concerned about Munchausen's Syndrome by Proxy, stated to me --
THE COURT: He's objected. Slow down.
MR. FRIEDMAN: Your Honor, again now he's stating opinions, his take on another expert's opinion --
THE COURT: What he's testified to is that is a fact that he has considered in his making his diagnosis, and that's admissible.
MR. FRIEDMAN: Your Honor please, his consideration of what someone said is admissible; his consideration of what that person's main concern was is not
reliable hearsay. That's the basis of my objection. He can say I talked to this doctor. Based on what he told me --
THE COURT: He can tell me facts that were related to him and on which he based his opinion, so I'm going to overrule your objection.
MR. FRIEDMAN: Very well.
THE WITNESS: I can clearly state that the physicians said this is Munchausen's by Proxy until proven otherwise.
THE COURT: That was Dr. Hyman that you had talked to?
THE WITNESS: Yes. And that this was number -- the number one consideration on a diagnosis of every physician who contacted our office.
THE COURT: And how many physicians was that, Doctor?
THE WITNESS: Four.
BY MS. LUSTER:
Q. And those were all as a result of receiving the mother's letter?
A. Yes.
Q. The next item that you've got, Doctor, is discussions with PICU administrator documented in the chart.
A. The nursing administrator in the intensive care unit, who's the manager of patient care services, has a note that's documented in the chart which I will only read
the pertinent portion. This was an entry on September the 6th, 1996, in which she is talking with Mrs. Patrick who says that "Only in death, end quote, would she,
quote, finally have control, end quote, over her child. She stated that she would, quote, walk right out of this hospital, end quote, with his body and -- if he died and
nobody could stop her.', So this is the second point at which I feel that . . .
MS. LUSTER: Your Honor, this is the last two pages of the stapled packet dated 9-6 PAP surgery history, medical records and we offer the pages that Dr. Polk
has just referred to.
MR. FRIEDMAN: Your Honor, in all fairness, I'd like him to offer all of the pages of that so Your Honor has an idea what precipitated that language --
MS. LUSTER: I'd be happy to offer all of the records from the 6th.
THE COURT: What I'm considering is what this doctor considered in reaching his expert opinion. Certainly, you can ask him on cross anything you want to.
MS. LUSTER: Thank you.
BY MS. LUSTER:
Q. What was concerning about that, Dr. Polk?
A. In Point Number 4, Mrs. Patrick's uncanny ability to predict an upcoming event and the note describing the fact that she had stated this and then a note that
she left at the bedside which says "Will someone call the blood bank?" This is entitled -- it's also entered into the medical record. "Would someone call the blood
bank and inform them of a possible eminent need so I can donate before the standard eight weeks?"
THE COURT: Doctor, I don't know what the standard --
THE WITNESS: The Red Cross will not allow you to donate less than eight weeks at eight-week intervals, and eight weeks had not elapsed since her last donation.
BY MS. LUSTER:
Q. Doctor, let me just ask you what eminent need of blood are you aware of at that time?
A. And that time there was no eminent need. His blood hematocrit had been stable for days prior to that, and there was no anticipated need of eminent blood.
So I became very concerned that there was potential blood loss that would not be medically explainable in this child in whom the notes the day before clearly stated
that only when this child was dead would this mother have control over him.
Q. If you could, moving on to the next item of the precipitating event.
A. The Number 6 was the receipt of the note from Children's Hospital of Philadelphia.
Q. That's the note that's already been admitted?
A. That's already been admitted with admission of adjusting Phillip's therapy. I called and spoke with the pediatric gastroenterologist taking care of Phillip at
LeBonheur who said that when she was caring for him that Mrs. Patrick was very upset when she arrived the morning prior to his
precipitous departure for Ocshner Clinic, medical clinic, saying that the resident physicians had allowed her son to become dehydrated in spite of her warnings. As it turned out,
she had actually turned off his enteral feeds, the continuous tube feeds, which were
the source of his hydration during the night. They also noted that the LeBonheur physicians were
planning to move him into a special care unit at that time because of concerns that Mrs. Patrick was altering Phillip's therapy prior to moving him. However, she left
for Ocshner.
At Ocshner Medical Clinic, one of the physicians had a high enough index of suspicion of the diagnosis of Munchausen's by Proxy though, as stated by the
physicians, this was never discussed to check the diarrheal stools for a common laxative of phenolphthalein.
Q. Do you know, Doctor, in the records that you did receive, was there any indication of the finding of laxatives?
A. There was not. They tested for phenolphthalein and it was negative. That was among the laboratory studies in the packet that I received.
Q. Then, if you could, Number 9.
A. On arrival to Vanderbilt, Mrs. Patrick informed the gastroenterology service that her attending at Ocshner Medical Clinic had recommended a colostomy for
management of his difficulty with defecation. She also informed them that physicians at CHOP had accused her of Munchausen's by Proxy Syndrome.
Q. Did you attempt to verify any of those statements?
A. I did. The physicians at CHOP did not accuse her of Munchausen's by Proxy Syndrome and in speaking with Dr. Khoshoo he had not recommended a
colostomy for therapy for this patient.
Q. What is a colostomy? If you could explain it.
A. That is a surgical disconnection of the colon from the rectum so you bring the colon to the outside and fecal material is then excreted into a bag. There were
two events at Vanderbilt that added to the weight of this concern. Number 10, after she was informed of a discharge plan for Phillip -- after she was informed of the
discharge plan, Phillip developed a profound secretary diarrhea within three hours which necessitated his admission to the pediatric intensive care unit. During this
admission, she told three different intensive care physicians she was accused of Munchausen's by Proxy Syndrome at LeBonheur Children's Hospital, again, a fact,
which was denied by the attending physician at LeBonheur Children's Hospital. Point Number 11 as the gastroenterology attending was discussing a discharge plan
in August, Mrs. Patrick began discussing the possibility of central line blood infections at each visit. Two days before he developed a line infection, she began
discussing the need for prophylaxis against a blood yeast infection. When he
developed his line infection, it was with multiple organisms suggesting contamination.
Q. Why is that suggesting contamination?
A. Again, these are stool organisms and, in fact, the blood culture report that was obtained at that time was read out as grossly contaminated with bacteria within
hours of the blood culture being drawn. This was underlined by the fact that he was growing the yeast from his blood within three hours of the blood draw
even seven days after antibiotics were administered.
Q. Why is that significant?
A. Because you would not expect in the presence of antibiotics against a fungal infection to still be able to culture a yeast from a bloodstream. He was transferred
to the PICU for respiratory symptoms and while there Mrs. Patrick told four different nurses that she had been accused of Munchausen's by Proxy Syndrome while
at Children's Hospital of Philadelphia. His infections, the organisms that he grew out are listed there: candida tropicalis, leuconostoc, serratia liquefacians, and then
there's an unidentified gram negative organism that's still in the state laboratory for investigation.
Q. Doctor, can you give the Court any idea, are these types of infections and various bacteria and organisms that are growing out in these cultures, are these rare
or common or --
A. They're -- to have repeated infections with multiple organisms is very rare. It is -- it does happen in patients with central lines like he has that occasional
infections do occur. These are predominantly far and away single organism infections and not with multiple stool organisms.
Q. So the existence of an infection is not a problem, just generally, but the existence of these infections --
A. Of multiple organisms and these organisms in particular.
Q. Thank you.
A. When I approached her about how sick he was and that his yeast infection seemed to be spreading through his body unchecked, this was after we were
culturing the blood within three hours, she asked about the ability of using a rectal tube, stating that a nurse had told her about this. She pointed to the nurse who
was standing beside her and that she had never heard of such a tube. She had, in fact, arrived at Vanderbilt using a rectal tube on Phillip at least three times daily
and documented in the chart up to ten times daily. And her physician at Ocshner informed me that he had instructed her in its use.
Q. Now, was this something that she told you in terms of her not --
A. Yes.
Q. -- not knowing anything about this tube?
A. Yes. She informed me that she had never heard of such a tube and wanted to know why she had not been informed of it.
Q. If you could, tell the Court what is the benefit or drawbacks of using such a tube?
A. Well, the rectal tubes are occasionally used on patients with severe constipation who need enemas in order to be able to defecate. They're occasionally used
in order to administer medications, predominantly those medications are given as enemas or suppositories. The concerning fact of the use of the rectal tube,
however, is of not being aware of when it's being used as well as denial of ever having heard of a rectal tube when she had, in fact, been using one on multiple
occasions.
Q. Can a rectal tube be overused?
A. Yes. And, in fact, it is documented in the chart one evening that she used the rectal tube
ten times during the night.
Q. What's the danger there of using it that many times?
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