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Testimony of Dr. Perry Fine - Dec. 11
This transcript of the hearing on the motion for a new trial
contains strong condemnation of the prosecution case.
To save time for the reader, important passages (mostly toward
the beginning of the document) have been highlighted in red.
Go to Nov. 29th Transcript>>
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3 *****
4 STATE OF UTAH, )
)
5 PLAINTIFF, )
)
6 VS. ) REPORTER'S TRANSCRIPT
)
7 ROBERT ALLEN WEITZEL, ) CASE NO. 991700983
)
8 DEFENDANT. )
9 *****
10
11 DECEMBER 11, 2000
12 HONORABLE THOMAS L. KAY
13
14 *****
15 APPEARANCES:
16 FOR THE STATE: MELVIN C. WILSON
STEVEN V. MAJOR
17 CHARLENE BARLOW
18 FOR THE DEFENDANT: PETER STIRBA
JOHN WARREN MAY
19
20 *****
21
22
23 REPORTED/TRANSCRIBED BY DEAN OLSEN, CSR
2525 GRANT AVENUE
24 OGDEN, UTAH 84401
(801) 395-1056
25
2
1 PERRY FINE
2 DIRECT BY STIRBA P. 7 CROSS BY WILSON P. 77
3 *****
4 FARMINGTON, UTAH DECEMBER 11, 2000
5 THE COURT: OKAY. WE'RE BACK ON THE RECORD IN THE
6 CASE OF STATE OF UTAH VERSUS ROBERT ALLEN WEITZEL. AND IN THE
7 PAST BOTH TODAY AND PREVIOUSLY, WE HAD TESTIMONY AS TO CERTAIN
8 ISSUES AND IT WAS DECIDED THAT WE WERE GOING TO FACE THE
9 QUESTION OF WHETHER A DISCLOSURE WAS NECESSARY OF EVIDENCE
10 BEFORE WE WENT FURTHER ON IN THE PROCESS OF THE -- ON THE
11 MOTION FOR A NEW TRIAL. I'VE NOW BEEN ABLE TO -- WELL, BEFORE
12 THIS HEARING AND BEFORE THE LAST ONE WE HAD, I'VE REVIEWED FOR
13 A LONG TIME THE MEMOS OF THE PARTIES, THE AFFIDAVITS OF THE
14 VARIOUS WITNESSES WHO TESTIFIED, AS WELL AS DURING THE TIME WE
15 HAD SINCE 1:30, I HAVE GONE BACK AND REVIEWED THOSE THINGS
16 PLUS ALL MY NOTES FROM BOTH -- FROM ALL OF THE TESTIMONY OF
17 THESE THREE WITNESSES. FROM THAT REVIEW, IT IS CLEAR THAT DR.
18 HARE, WHO WAS A WITNESS IN THIS CASE, RECOMMENDED DR. FINE,
19 ONE OF HIS COLLEAGUES, TO THE PROSECUTORS. THAT THE
20 PROSECUTORS DESIGNATED DR. FINE AS AN EXPERT PRIOR TO THE TIME
21 OF THIS APRIL 26TH MEETING OR THE APRIL 20TH PHONE
22 CONVERSATION. DR. FINE WAS ASKED BY THE PROSECUTORS UNDER THE
23 LETTER WHICH IS DEFENDANT'S EXHIBIT 1, AN APRIL 7TH LETTER, HE
24 WAS ASKED BY THE PROSECUTORS WHETHER THESE PATIENTS WERE END
25 OF -- WERE IN AN END-OF-LIFE SITUATION, AND WHETHER THE
3
1 CONDITION THEY WERE IN WAS HANDLED APPROPRIATELY.
2 DURING THIS HEARING, AND I REFER TO THIS HEARING AS WHEN
3 WE HAD DR. FINE TESTIFY EARLIER, THAT DR. FINE TESTIFIED
4 DURING THIS HEARING THAT WHAT DR. WEITZEL DID WERE NOT
5 CRIMINAL ACTS. THAT ALL THE PATIENTS WERE TERMINAL ON
6 ADMISSION TO THE DAVIS HOSPITAL. THAT THE PATIENTS, THESE
7 FIVE PATIENTS WERE IN PAIN, AND THAT AT WORST, WHAT
8 DR. WEITZEL DID WAS MEDICAL MALPRACTICE.
9 NOW, MISS BARLOW AND MISS BOWMAN ALSO TESTIFIED, AND AS
10 TO THE THINGS THAT I'VE JUST LISTED, THOSE FOUR ITEMS, MISS
11 BARLOW I BELIEVE WHEN TALKING ABOUT DR. FINE SAID THAT THEY
12 WEREN'T CRIMINAL ACTS, MADE THE STATEMENT THAT HE WAS SO
13 ADAMANT THAT WHAT HAPPENED WAS NOT CRIMINAL. AND I BELIEVE
14 MISS BOWMAN GAVE, YOU KNOW, A QUALIFIED AGREEMENT. SHE
15 QUALIFIED THAT, BUT SHE MADE KIND OF AN AGREEMENT TO THAT.
16 AS TO THE ALL PATIENTS WERE TERMINAL, I THINK THAT THERE
17 ARE SOME NOTES AND THERE'S SOME DISCUSSIONS EITHER THAT --
18 THERE WERE SOME DISCUSSIONS OF THAT IN THE PROSECUTORS' NOTES.
19 THE QUESTIONS OF THE PATIENTS BEING IN PAIN, I THINK THERE
20 WERE SOME QUALIFIED ANSWERS FROM THE PROSECUTORS. AS TO THE
21 MEDICAL MALPRACTICE AT WORST, MISS BARLOW AGREES TO THAT BOTH
22 IN HER TESTIMONY AND IN HER AFFIDAVIT.
23 REFERENCE HAS BEEN MADE BY THE PROSECUTION IN THEIR
24 SUPPLEMENTAL MEMO TO THE CASE OF STATE VERSUS GERO WHERE THE
25 UTAH SUPREME COURT SAID THAT A FAIR-MINDED PROSECUTOR IS NOT
4
1 LIKELY TO BE AWARE OF ALL POTENTIAL EVIDENCE WHICH A DEFENDANT
2 MIGHT THINK RELEVANT. AND WE DON'T -- WE DO NOT THINK IT
3 REASONABLE GIVEN THE ADVERSARY NATURE OF THE CRIMINAL PROCESS
4 TO REQUIRE A PROSECUTOR TO DISCLOSE ALL EVIDENCE WHICH MIGHT
5 POSSIBLY BE USEFUL TO THE DEFENSE, BUT IS WHICH -- BUT WHICH
6 IS NOT LIKELY TO HAVE A FORESEEABLE EFFECT UPON THE VERDICT.
7 SUCH REQUIREMENT WOULD CREATE UNBEARABLE BURDENS AND ALSO
8 UNCERTAINTIES WITH RESPECT TO THE FINALITY OF JUDGMENTS.
9 NOW, IN THIS CASE, THERE'S -- I'M NOT GONNA GO THROUGH
10 ALL OF THE LAW, BUT UNDER BOTH THE CONSTITUTION, UNDER THE
11 RULES OF PROFESSIONAL CONDUCT, AND ALSO UNDER THE RULES OF
12 CRIMINAL PROCEDURE, THE PROSECUTORS HAVE CERTAIN DISCLOSURE
13 REQUIREMENTS. SPECIFICALLY REFERRING TO RULE 16 PAREN A.
14 PAREN 4 OF THE UTAH RULES OF CRIMINAL PROCEDURES, IT STATES IN
15 PERTINENT PART: THE PROSECUTOR SHALL DISCLOSE TO THE DEFENSE
16 UPON REQUEST EVIDENCE KNOWN TO THE PROSECUTOR THAT TENDS TO
17 NEGATE THE GUILT OF THE ACCUSED, MITIGATE THE GUILT OF THE
18 DEFENDANT, OR MITIGATE THE DEGREE OF THE OFFENSE OR REDUCE THE
19 PUNISHMENT.
20 NOW, IN ORDER TO APPLY THAT RULE AND TO SAY WHETHER OR
21 NOT IT NEGATES GUILT OR TENDS TO NEGATE GUILT OR THE OTHER
22 THINGS THAT THE RULE PROVIDES, IT HAS TO BE PUT IN THE CONTEXT
23 OF WHAT THE ISSUES WERE IN THE TRIAL. AND IN ORDER TO DO
24 THAT, THE STATE'S -- REVIEW THAT, THE STATE'S THEORY OF THE
25 CASE FROM MY MEMORY OF OUR SIX-WEEK TRIAL AND WHAT WE WENT
5
1 THROUGH WAS THAT ONE OF THE SIGNIFICANT ISSUES BY THE STATE
2 AND WHAT WAS IN ISSUE OR DISAGREEMENT AT THE TRIAL WAS WHETHER
3 OR NOT THE PATIENTS WHO CAME TO THE DAVIS HOSPITAL WERE
4 TERMINAL AT THE ADMISSION TO THE HOSPITAL. A SECOND THEORY OF
5 THE STATE -- AND THE STATE WAS SAYING THAT THEY WERE NOT
6 TERMINAL.
7 SECOND, ANOTHER MAJOR THEORY WAS THAT THE -- THESE
8 PATIENTS WERE NOT IN PAIN.
9 AND THIRD, FOR THIS DISCUSSION, THEY STATED THAT
10 DR. WEITZEL HAD EITHER INTENTIONALLY OR KNOWINGLY FROM A FIRST
11 DEGREE MURDER ASPECT TERMINATED THEIR LIVES, OR UNDER THE
12 LESSER INCLUDED OFFENSE, THAT HE SOMEHOW GROSSLY DEVIATED FROM
13 THE STANDARD OF CARE. SO THAT IS THE CONTEXT THAT I BELIEVE
14 THAT RULE 16(A) HAS TO LOOK AT IN TERMS OF WHAT WAS GOING TO
15 TEND TO NEGATE THE GUILT OF THE ACCUSED OR MITIGATE THE GUILT.
16 IN ORDER TO DO THAT, THEN IT APPEARS THAT THESE ISSUES OF
17 WHETHER THE PATIENTS WERE TERMINAL, WHICH DR. FINE WOULD
18 TESTIFY TO, AND WHETHER THE PATIENTS WERE IN PAIN OR WHETHER
19 IT WAS MEDICAL MALPRACTICE AT WORST, THAT THOSE ITEMS THAT HE
20 WOULD TESTIFY AND -- WOULD BE TOTALLY CONTRARY TO THE STATE'S
21 THEORY. AND IT APPEARS TO ME THAT IF IT'S TOTALLY CONTRARY TO
22 THE STATE'S THEORY, IT'S BY DEFINITION TENDS TO NEGATE THE
23 GUILT OF THE ACCUSED, MITIGATE THE GUILT OF THE DEFENDANT, OR
24 MITIGATE THE DEGREE OF THE OFFENSE FOR REDUCED PUNISHMENT.
25 SO ON THAT BASIS, I'M FINDING THAT THERE WAS A DUTY TO
6
1 DISCLOSE. I'M NOT MAKING ANY DETERMINATION REGARDING WHETHER
2 THERE WERE ANY STATEMENTS. I THINK IT WAS INCONCLUSIVE
3 WHETHER THERE WERE STATEMENTS THAT WERE SAID, DON'T TELL THE
4 DEFENSE ATTORNEY. I THINK THAT'S INCONCLUSIVE. I'M NOT
5 MAKING ANY DETERMINATIONS ABOUT THE RULES OF -- UTAH RULES OF
6 PROFESSIONAL CONDUCT. I THINK THE ISSUE HERE IS ONLY WHETHER
7 OR NOT THERE WAS A DUTY TO DISCLOSE, AND THAT DOESN'T RESOLVE
8 OUR CASE BECAUSE SINCE I FOUND THAT THERE WAS A DUTY TO
9 DISCLOSE, WE NEED TO CONTINUE THE REST OF THE HEARING AS IT
10 RELATES TO THE ISSUE OF WHETHER OR NOT IF -- EVEN ASSUMING
11 THERE WAS A DUTY TO DISCLOSE, IS THERE -- WOULD THAT HAVE
12 AFFECTED THE OUTCOME OF THE TRIAL. SO AS I MENTIONED BEFORE,
13 HAVING MADE THAT RULING, THEN, WE NEED TO CONTINUE ON AS WE
14 SAID WE WOULD LAST TIME. SO I ASSUME, MR. STIRBA, IT'D BE
15 YOUR TURN TO GO FORWARD.
16 MR. STIRBA: YES, YOUR HONOR. BEFORE WE START, I
17 JUST WANT TO CLARIFY ONE THING WITH THE COURT. THE COURT HAS
18 INDICATED THAT IT TOOK GOOD NOTES OF THE PREVIOUS TESTIMONY BY
19 DR. FINE, AND THE COURT MAY RECALL THERE WAS A LOT OF
20 TESTIMONY THAT WE ARE GOING TO RELY ON FOR PURPOSES OF THIS
21 SORT OF SEGMENT. I DON'T WANNA REPEAT IT ALL --
22 THE COURT: NO, I UNDERSTAND --
23 MR. STIRBA: -- BUT IT IS --
24 THE COURT: -- THIS IS ALL PART OF THE SAME HEARING
25 ON THE MOTION FOR NEW TRIAL. YEAH, WHAT IS DISCUSSED THERE, I
7
1 DON'T WANT TO REDO. I THINK THE ISSUE WAS THAT WAS MORE GOING
2 TO THE DISCLOSURE, WHAT WAS SAID TO THE PROSECUTORS, AND
3 WHETHER THERE WAS A REASON TO BRING THAT UP TO THE DEFENSE.
4 SO WE'RE NOT GONNA REPEAT THAT, AND IT'S ALL PART OF THE
5 SAME --
6 MR. STIRBA: GREAT, OKAY.
7 THE COURT: -- HEARING. WE'VE DONE IT ON TWO
8 DIFFERENT DAYS, BUT THAT DOESN'T MEAN WE'RE GONNA GO OVER IT
9 AGAIN.
10 MR. STIRBA: FINE JUDGE. I JUST WANTED TO MAKE THAT
11 CLEAR. DR. FINE, IF YOU WOULD COME FORWARD PLEASE.
12 THE COURT: EVEN THOUGH THIS IS A CONTINUATION, I
13 THINK WE'VE BEEN GONE A WEEK OR TWO, SO LET'S HAVE YOU SWORN
14 AGAIN.
15 PERRY FINE,
16 DIRECT EXAMINATION
17BY MR. STIRBA:
18 Q. DOCTOR, ONCE AGAIN, COULD YOU STATE YOUR FULL NAME FOR
19 THE RECORD PLEASE?
20 A. MY NAME IS PERRY GORDON FINE.
21 Q. AND YOU ARE A LICENSED PHYSICIAN BY THE STATE OF UTAH?
22 A. YES.
23 Q. AND JUST VERY QUICKLY, TELL US WHERE YOU WORK AGAIN.
24 A. I'M ON THE FACULTY AT THE UNIVERSITY OF UTAH AND NATIONAL
25 MEDICAL DIRECTOR FOR VISTA CARE.
8
1 Q. NOW, SPECIFICALLY, LAST TIME YOU WERE HERE, YOU TOLD US A
2 LITTLE BIT ABOUT YOUR QUALIFICATIONS. I DID NOT INQUIRE ABOUT
3 YOUR RELATIONSHIP WITH VISTA. COULD YOU PLEASE EXPLAIN WHAT
4 YOUR POSITION IS WITH THEM AND WHAT YOU DO FOR THEM?
5 A. FOR APPROXIMATELY THE LAST FOUR AND A HALF YEARS, I'VE
6 SERVED AS THE NATIONAL MEDICAL DIRECTOR FOR VISTA CARE, WHICH
7 IS CURRENTLY THE LARGEST PROVIDER OF HOSPICE CARE NATIONWIDE
8 WITH -- WE TAKE CARE OF APPROXIMATELY 2500 PATIENTS A DAY.
9 AND I OVERSEE AND AM RESPONSIBLE FOR THE QUALITY OF CARE OF
10 THOSE PATIENTS, WHICH LAST YEAR I WAS RESPONSIBLE INDIRECTLY
11 FOR THE QUALITY OF CARE OF ABOUT 30,000 PATIENTS WHO ENTERED
12 INTO THE HOSPICE PROGRAMS IN ABOUT 40 PROGRAMS IN 14 STATES.
13 Q. AND YOU ALSO HAVE EXPERTISE IN THE FIELD OF PAIN
14 MANAGEMENT, DO YOU NOT?
15 A. THAT'S CORRECT.
16 Q. COULD YOU BRIEFLY DETAIL THAT FOR US?
17 A. FOLLOWING MY ANESTHESIOLOGY RESIDENCY HERE AT THE
18 UNIVERSITY OF UTAH, I COMPLETED A FELLOWSHIP IN PAIN
19 MANAGEMENT AT THE UNIVERSITY OF TORONTO.
20 Q. IS THERE A RELATIONSHIP BETWEEN YOUR TRAINING AND
21 EXPERTISE IN THE FIELD OF PAIN MANAGEMENT AND YOUR EXPERTISE
22 AND TRAINING IN THE FIELD OF END-OF-LIFE CARE OR HOSPICE CARE?
23 A. WELL, THERE'S OVERLAP. ONE CAN BE A PAIN MANAGEMENT
24 EXPERT AND NEVER INVOLVE ONESELF IN THE MANAGEMENT OF
25 TERMINALLY ILL PATIENTS. BUT IT'S VIRTUALLY IMPOSSIBLE TO BE
9
1 INVOLVED IN THE CARE OF TERMINALLY ILL PATIENTS WITHOUT BEING
2 INVOLVED IN PAIN MANAGEMENT. THAT'S ONE OF THE PRIMARY
3 REQUISITES OF THAT POSITION.
4 Q. ARE YOU INVOLVED OR HAVE YOU BEEN INVOLVED IN TREATMENT
5 SPECIFICALLY OF A GERIATRIC POPULATION THAT MIGHT BE SUFFERING
6 FROM SEVERE DEMENTIA OR DEMENTIA?
7 A. YES. A SIGNIFICANT NUMBER OF THE PATIENTS WHO ARE
8 INVOLVED IN THE TYPE OF END-OF-LIFE CARE PROGRAMS I OVERSEE DO
9 HAVE DEMENTING PROCESSES.
10 Q. AND IS PAIN PART OF YOUR TREATMENT OF CARE IN TERMS OF
11 PROVIDING FOR THE RELIEF OF -- IN TERMS OF GERIATRIC WORK?
12 A. ABSOLUTELY.
13 Q. AND COULD YOU -- COULD YOU DESCRIBE, IS THERE ANYTHING
14 PARTICULAR ABOUT THE MANIFESTATION OF PAIN INSOFAR AS DEMENTED
15 GERIATRIC PATIENTS ARE CONCERNED THAT REQUIRES PARTICULAR
16 EXPERTISE?
17 A. WELL, IT'S A GREAT DEAL MORE CHALLENGING IN THAT PATIENTS
18 WHO ARE DEMENTING CANNOT OR OFTENTIMES NOT SELF-REPORTING AND
19 CANNOT GIVE A VERBAL DESCRIPTION OF THEIR PAIN EITHER
20 QUALIFYING IT OR GIVING IT A PAIN RATING OF INTENSITY. AND SO
21 THE ABILITY TO EVALUATE AND ASSESS PAIN BECOMES MUCH MORE
22 DIFFICULT. AND THERE'S SORT OF A SUB AREA OF EXPERTISE THAT'S
23 DEVELOPING IN -- INCLUDING VALIDATION TOOLS AND SO FORTH IN
24 ORDER TO -- TO HELP DETERMINE WHETHER SUCH PATIENTS ARE INDEED
25 IN PAIN. AND AS A RESULT OF A LOT OF THAT WORK IN THE LAST
10
1 FEW YEARS, IT'S BEEN DETERMINED THAT THE MAJORITY OF PATIENTS
2 WHO ARE IN INSTITUTIONAL CARE SETTINGS IN THE GERIATRIC
3 POPULATION ARE UNDEREVALUATED, UNDERTREATED FOR CHRONIC PAIN
4 CONDITIONS. AND THAT THE RANGE IS BETWEEN 50 AND 80 PERCENT
5 OF THOSE PATIENTS IN FACT DO HAVE PAIN-PRODUCING CONDITIONS AS
6 WE SPEAK TODAY. TOWARD THAT, I WAS INVOLVED WITH THE AMERICAN
7 GERIATRIC SOCIETY TO CREATE CLINICAL GUIDELINES FOR PAIN
8 EVALUATION AND TREATMENT WHICH WERE PUBLISHED BY THAT
9 ORGANIZATION TWO YEARS AGO AND THEN REVIEWED THE AMERICAN
10 MEDICAL DIRECTORS' ASSOCIATION CLINICAL GUIDELINES FOR PAIN
11 TREATMENT THAT WERE THEN PUBLISHED THIS YEAR, 2000, AND THAT'S
12 THE ORGANIZATION OF PHYSICIAN MEDICAL DIRECTORS WHO DO OVERSEE
13 CARE OF PATIENTS IN NURSING HOMES.
14 Q. ARE YOU A MEMBER OF THE AMERICAN PAIN SOCIETY?
15 A. YES.
16 Q. AND HAS THAT SOCIETY PROMULGATED SOME GUIDELINE THAT
17 RELATES TO THE CARE OF THIS PARTICULAR PATIENT POPULATION?
18 A. THEY HAVE. THERE HAS BEEN A TASK FORCE SPECIFICALLY
19 DESIGNATED AS FAR AS THAT ORGANIZATION TO REVIEW THE
20 LITERATURE THAT EXISTS, THE STUDIES THAT EXIST, AND TO CREATE
21 A GUIDELINE AND ACTUALLY -- IF I -- IF PERMITTED, I'D FEEL
22 BETTER QUOTING IT DIRECTLY THAN TRYING TO REMEMBER IT --
23 Q. I THINK THAT WOULD BE FINE.
24 MR. WILSON: FIRST OF ALL, MAY I JUST INQUIRE AS TO
25 FOUNDATION AS TO THE GUIDELINE? I KNOW YOU'VE TALKED ABOUT
11
1 HIM BEING A MEMBER OF THE AMERICAN PAIN SOCIETY AND THE TASK
2 FORCE, BUT I'D LIKE TO KNOW WHEN THIS WAS PUBLISHED AND SOME
3 OF THE FOUNDATIONAL REQUIREMENTS.
4BY MR. STIRBA:
5 Q. I WILL ASK HIM THAT.
6 A. SHOULD I RESPOND TO MR. WILSON'S QUESTIONS OR --
7 Q. WELL, WHY DON'T I ASK YOU THE QUESTION. DO YOU HAVE THAT
8 IN FRONT OF YOU, DOCTOR?
9 A. YES, I DO.
10 Q. AND WHAT IS THAT?
11 A. THIS IS A SECTION ON ADVOCACY AND POLICY RELATIVE TO THE
12 AMERICAN PAIN SOCIETY. AND THIS IS A SECTION ENTITLED
13 TREATMENT OF PAIN AT THE END OF LIFE. AND I'M LOOKING FOR A
14 PUBLICATION DATE. I'M NOT SURE ACTUALLY IF THE ABSTRACTS THAT
15 I HAVE -- I DON'T SEE THAT THERE'S ACTUALLY A SPECIFIC
16 PUBLICATION DATE ON THIS, BUT THIS IS JUST COPIES THAT I'VE
17 MADE OF THE DOCUMENT.
18 Q. WOULD THE FORMULATION OR THE CONTENTS OF THAT GUIDELINE,
19 WOULD THAT BE SOMETHING THAT WOULD BE AUTHORITATIVE AT LEAST
20 WITH RESPECT TO THE CONDUCT OF A PHYSICIAN IN THIS AREA
21 PERHAPS IN 1995 AND 1996?
22 A. YES. THIS WOULD BE -- THIS WOULD PERTAIN TO THOSE
23 COMMENTS YOU MADE, AND THE AUTHORS OF THIS ARE -- I THINK
24 WOULD BE WIDELY ACKNOWLEDGED AS NOT ONLY NATIONAL BUT
25 INTERNATIONAL EXPERTS IN THIS PARTICULAR AREA. AND I COULD
12
1 READ THEIR NAMES FOR THE RECORD SO THAT THAT COULD BE CHECKED
2 OUT IF DESIRED.
3 Q. GO AHEAD.
4 MR. WILSON: WELL, I DON'T HAVE ANY OBJECTION AS --
5 FOR THE RECORD PURPOSES, BUT I WOULD LIKE TO KNOW, WAS THE
6 ANSWER TO THE QUESTION THAT THIS WAS PROMULGATED BEFORE 1995?
7 MR. STIRBA: NO. I THINK THE WITNESS HAS TESTIFIED
8 THAT THERE'S NO DATE ON WHAT HE HAS IN FRONT OF HIM. HOWEVER,
9 IT WOULD HAVE BEEN AUTHORITATIVE WITH RESPECT TO THE PRACTICE
10 IN '95 AND '96.
11 Q. IS THAT CORRECT, DOCTOR?
12 A. YES.
13 MR. WILSON: OKAY.
14BY MR. STIRBA:
15 Q. WHY DON'T YOU READ IT FOR US PLEASE?
16 A. OKAY. WHAT I WAS GOING TO -- IT'S A LONG DOCUMENT. I
17 WAS GOING TO READ SECTION 5 WHICH REALLY PERTAINS I THINK
18 MOST -- IS MOST RELEVANT TO WHAT'S AT ISSUE HERE. AND SECTION
19 5 STATES, LAWS AND REGULATIONS MUST PROVIDE PROTECTION FOR
20 HEALTH PROFESSIONALS TO AGGRESSIVELY TREAT PAIN WITH ANALGESIC
21 DRUGS AND, WHEN NEEDED, WITH TERMINAL SEDATION EVEN IF THESE
22 TREATMENTS HASTEN DEATH. AT PRESENT, PHYSICIANS AND NURSES
23 ARE OFTEN RELUCTANT TO GIVE LARGE DOSES OF ANALGESICS TO DYING
24 PATIENTS FEARING THAT THEY WILL BE SUBJECT TO PROSECUTION IF
25 THE DRUGS CONTRIBUTE TO A RESPIRATORY ARREST. REGULATIONS
13
1 MUST SPECIFY THAT AN INTENT TO RELIEVE PAIN SUPPORTED BY
2 DOCUMENTATION OF THE PATIENT'S REPORT OF PAIN OR BEHAVIORS
3 THAT SUGGEST PAIN -- FOR INSTANCE, GRIMACING OR MOANING -- CAN
4 JUSTIFY THE USE OF HIGH DOSES OF ANALGESICS OR SEDATIVES, EVEN
5 IF THESE TREATMENTS ALSO DEPRESS RESPIRATION OR HASTEN DEATH
6 IN SOME OTHER WAY. SUCH TREATMENT IS BASED ON ETHICAL
7 PRINCIPLES THAT ARE WIDELY ACCEPT BY HEALTH PROFESSIONALS,
8 ANESTHETISTS -- AND THEN IT LISTS REFERENCES TO THAT -- AND
9 SHOULD NOT BE CONSIDERED AN ACT OF ASSISTED SUICIDE OR
10 EUTHANASIA.
11 Q. NOW, IN TERMS OF THE ETHICAL IMPLICATIONS OF A STATEMENT
12 LIKE THAT, I BELIEVE YOU BRIEFLY TOUCHED ON LAST TIME THAT YOU
13 HAVE PARTICIPATED IN CERTAIN ETHICAL DISCUSSIONS OR HAVE SOME
14 ETHICAL EXPERTISE, IS THAT RIGHT?
15 A. YES.
16 Q. AND WOULD YOU PLEASE TELL THE COURT WHAT THAT IS?
17 A. WELL, IN RECOGNIZING THAT A CONSIDERABLE AMOUNT OF THIS
18 TYPE OF WORK WOULD BE -- WOULD INVOLVE GROUNDING IN MEDICAL
19 ETHICS AND BIOMEDICAL ETHICS, I SOUGHT ADDITIONAL TRAINING AT
20 THE GEORGETOWN UNIVERSITY KENNEDY INSTITUTE OF ETHICS. AND I
21 CANNOT RECALL OFF THE TOP OF MY HEAD HOW MANY YEARS AGO, BUT
22 WAS SOMEWHERE IN THE MID TO LATE EIGHTIES. AND CAME BACK AND
23 ASSUMED THE POSITION OF VICE CHAIR OF THE ETHICS COMMITTEE AT
24 THE UNIVERSITY HOSPITAL IN PROBABLY AROUND 1990. IT WOULD BE
25 ON MY CURRICULUM VITAE. AND BECAME INVOLVED IN -- ACTIVELY
14
1 INVOLVED IN SOME OF THE ACTIVITIES OF THE DIVISION OF MEDICAL
2 ETHICS WHEN IT CAME INTO BEING. HELPED WORK WITH NATION -- OR
3 EXCUSE ME, THE AMERICAN CANCER SOCIETY, UTAH DIVISION, TO HELP
4 CREATE THE -- THE ORGANIZATION TO -- TO PROMOTE PAIN RELIEF
5 FOR CANCER PATIENTS IN THE STATE AND DEVELOP SOME STUDIES
6 ALONG THOSE LINES. BECAME INVOLVED WITH THE -- AS A MEMBER OF
7 THE ETHICS COMMITTEE OF THE AMERICAN SOCIETY OF
8 ANESTHESIOLOGISTS AND DEVELOPED GUIDELINES REGARDING DO NOT
9 RESUSCITATE ORDERS AND SIMILAR END-OF-LIFE CARE ISSUES WITH
10 THAT PROFESSIONAL ORGANIZATION. AND THEN LASTLY, ASSUMED THE
11 CHAIRMANSHIP OF THE ETHICS COMMITTEE FOR THE NATIONAL HOSPICE,
12 PALLIATIVE CARE ORGANIZATION.
13 Q. NOW, THE STATEMENT YOU JUST READ, DO YOU BELIEVE THAT HAS
14 SOME APPLICATION OR RELEVANCE TO THE FACTS OF THIS CASE AND
15 THE RECORDS YOU REVIEWED?
16 A. YES, I DO.
17 Q. AND WOULD YOU TELL THE COURT HOW SO?
18 A. I BELIEVE THAT THIS STATEMENT IN FACT APPLIES VERY MUCH
19 TO -- TO THE CASES AT HAND IN THAT THESE PATIENTS, BASED UPON
20 THEIR UNDERLYING DEMENTING PROCESSES AND CO-MORBIDITIES WOULD
21 HAVE LIMITED LIFE EXPECTANCY AND DID DEMONSTRATE ASPECTS OF
22 SUFFERING CONSISTENT WITH BOTH THEIR MEDICAL HISTORIES AND
23 THEIR BEHAVIORS WITH PAIN PROCESSES THAT WE KNOW CONTRIBUTE TO
24 SOME OF THE BEHAVIORS OF SUCH PATIENTS. AND I DON'T -- MAY I
25 INTERRUPT MYSELF TO MAKE A SORT OF A CAVEAT STATEMENT? I
15
1 DON'T KNOW IF IT'S IN LINE OR NOT.
2 MR. WILSON: I THINK I WOULD OBJECT AT THIS TIME,
3 YOUR HONOR, NOT RESPONSIVE.
4 THE COURT: WAIT FOR A QUESTION.
5 THE WITNESS: THAT -- THAT -- THAT IN FRAME OF
6 REFERENCE OF THESE PATIENTS, THAT -- THAT THERE WOULD BE --
7 THAT ON -- THAT MOST -- MOST PHYSICIANS ARE VERY FEARFUL OF
8 AGGRESSIVELY TREATING THESE SYMPTOMS FOR FEAR OF --
9 MR. WILSON: YOUR HONOR, I'M GOING TO OBJECT. IT HAS
10 NO RELEVANCE TO -- TO THESE PROCEEDINGS.
11 MR. STIRBA: I THINK IT'S ABSOLUTELY RELEVANT, YOUR
12 HONOR. HE'S --
13 THE COURT: WELL, WHY DON'T YOU -- WE ASK A QUESTION
14 SO WE CAN PUT IT IN CONTEXT.
15 MR. STIRBA: OKAY, THAT'S FINE.
16 Q. YOU WERE TESTIFYING -- FIRST OF ALL, YOU WERE TESTIFYING
17 ABOUT A SELF-IMPOSED CAVEAT. WHAT IS IT THAT YOU WANTED TO
18 SAY IN THAT REGARD?
19 A. WELL, ONE OF THE REASONS I FIND IT DIFFICULT, AND I
20 ASSUME I GUESS I'LL HAVE TO GET OVER THIS DIFFICULTY, BUT THIS
21 IS NOT A SITUATION HERE --
22 MR. WILSON: AGAIN, YOUR HONOR, I'M GOING TO OBJECT
23 AS TO THE RELEVANCY OF THIS LINE OF QUESTIONING AS IT RELATES
24 TO THE CARE AND TREATMENT OF THESE PARTICULAR PATIENTS.
25 THE WITNESS: I CAN ADDRESS THAT DIRECTLY. I -- IT IS
16
1 MY UNDERSTANDING, IT'S COME TO MY ATTENTION, YOUR HONOR --
2 MR. WILSON: YOUR HONOR, MAY I --
3 THE WITNESS: -- THAT THERE ARE MEMBERS OF THE
4 FAMILIES OF THESE PATIENTS IN THIS COURTROOM, AND I THINK SOME
5 OF THESE KINDS OF STATEMENTS AND DISCUSSION MUST BE
6 EXTRAORDINARILY PAINFUL AND DIFFICULT FOR THEM, AND I AM VERY
7 SYMPATHETIC TO THAT. I THINK THAT THEY CERTAINLY HAVE BEEN
8 TAUGHT OR BROUGHT TO BELIEVE --
9 MR. WILSON: WELL, AGAIN, YOUR HONOR, I'M GOING TO
10 OBJECT THAT THE ANSWER IS UNRESPONSIVE.
11 THE COURT: LET'S JUST GO AHEAD -- SUSTAINED. LET'S
12 JUST GO AHEAD WITH QUESTIONS.
13BY MR. STIRBA:
14 Q. OKAY. I ASKED YOU ABOUT THE APPLICATION OF THAT
15 STATEMENT TO THE FACTS OF THIS CASE.
16 A. YES, SIR.
17 Q. AND YOU WERE TESTIFYING ABOUT ITS APPLICATION. AND COULD
18 YOU ONCE AGAIN WITHOUT A TOTAL REPEAT OF YOURSELF JUST EXPLAIN
19 GENERALLY WHY IT'S APPLICABLE.
20 A. BECAUSE IN ESSENCE WHAT THIS STATEMENT SAYS IS THAT THE
21 TYPES OF PATIENTS WHO WERE UNDER TREATMENT BY DR. WEITZEL IN
22 THIS CASE CONFORMED TO THE EXACT REASONS FOR THESE TYPES OF
23 POLICY STATEMENTS TO BE MADE IN ORDER TO INSURE THAT PATIENTS,
24 AND OF WHICH THERE ARE 10,000 OR MORE PER YEAR IN THIS STATE
25 ALONE WHO DIE UNDER UNCOMFORTABLE CIR --
17
1 MR. WILSON: OBJECTION, YOUR HONOR. AGAIN, IT'S NOT
2 RESPONSIVE --
3 THE WITNESS: -- THAT PHYSICIANS WOULD BE ABLE TO --
4 TO PROVIDE APPROPRIATE PALLIATIVE CARE.
5BY MR. STIRBA:
6 Q. NOW, YOU TESTIFIED THAT PHYSICIANS ARE HESITANT TO
7 PROVIDE AGGRESSIVE MANAGEMENT OF PAIN?
8 A. YES.
9 MR. WILSON: OBJECTION, YOUR HONOR.
10 THE COURT: WHAT'S THE NATURE OF THE OBJECTION?
11 MR. WILSON: IT'S IRRELEVANT WHAT OTHER PHYSICIANS
12 ARE RELUCTANT TO DO.
13 THE COURT: WHAT DO YOU CLAIM THE RELEVANCY OF THIS
14 IS?
15 MR. STIRBA: WELL, I THINK IT IS CONTEXTUAL AND
16 RELATES TO WHAT I THINK THE DOCTOR'S GOING TO TESTIFY IN TERMS
17 OF THE STANDARD OF CARE AND END-OF-LIFE CARE. AND THEN I'M
18 GOING TO ASK HIM ABOUT HIS APPLICATION TO THIS CASE. BUT I
19 THINK IN ORDER TO GET THERE, YOUR HONOR, I THINK HE HAS TO AT
20 LEAST PROVIDE SOME PRELIMINARY INFORMATION RELEVANT TO THAT
21 TESTIMONY.
22 MR. WILSON: AND AGAIN, YOUR HONOR, IF HE WANTS TO
23 RELATE THE QUESTION TO WHAT HE OBSERVED AND WHAT HIS OPINION
24 IS AS TO THE END-OF-LIFE CARE, AND PARTICULARLY END-OF-LIFE
25 CARE IN 1995, I WOULD HAVE NO OBJECTION TO THAT. I DON'T SEE
18
1 WHAT OTHER PHYSICIANS HAS TO DO WITH THAT.
2 MR. STIRBA: WELL, MAYBE I'LL ASK IT THIS WAY, JUDGE:
3 Q. DOES THE FACT THAT YOUR TESTIMONY CONCERNING YOUR
4 AWARENESS OF THE PRACTICES OF OTHER PHYSICIANS IN TERMS OF
5 AGGRESSIVE TREATMENT OF PAIN, DOES THAT HAVE RELEVANCE TO YOUR
6 OPINION IN THIS CASE?
7 A. YES.
8 Q. AND WOULD YOU TELL US WHY PLEASE?
9 A. BECAUSE IT CAN BE EASILY SEEN HOW ACTIONS AND MEDICAL
10 CARE OF THE PATIENTS IN QUESTION COULD BE CONSTRUED OR
11 MISCONSTRUED BY OTHER PHYSICIANS AS BEING NOT ONLY
12 INAPPROPRIATE, BUT ALSO ILLEGAL, IN THAT ACTIVE EUTHANASIA IS
13 INDEED ILLEGAL AND IS VIEWED AS CRIMINAL BY DEFINITION. AND
14 SINCE THERE IS NO WELL-DEFINED STANDARD OF CARE FOR SUCH
15 PATIENTS, IT IS ALL ACROSS THE BOARD. THE TYPE OF TREATMENT
16 PRESCRIBED FOR THESE PATIENTS COULD EASILY BE MISCONSTRUED.
17 Q. IN TERMS OF THE TREATMENT OF PAIN AND END-OF-LIFE CARE,
18 COULD YOU TELL THE COURT WHAT KNOWLEDGE YOU HAVE BASED UPON
19 YOUR EXPERIENCE IN TERMS OF PRACTICES IN THIS STATE BY OTHER
20 PHYSICIANS?
21 MR. WILSON: OBJECTION, YOUR HONOR. RELEVANCY.
22 THE COURT: WELL, I THINK IT GOES TO FOUNDATION.
23 OVERRULED.
24 THE WITNESS: I'M WELL AWARE THAT IN THIS STATE, WHICH
25 DOES NOT DIFFER SIGNIFICANTLY FROM OTHERS, THAT -- THAT THERE
19
1 GENERALLY IS UNDERTREATMENT OF PAIN AND OF ALL SORTS IN
2 PATIENTS WITH FAR-ADVANCED DISEASE. AND -- AND THE ONLY
3 DEFINED STANDARD OF CARE THAT REALLY COULD BE BROUGHT TO THE
4 FORE ARE THE ETHICAL PRINCIPLES OF WHAT GOOD CARE WOULD
5 CONSTITUTE. AND I THINK THAT THEY HAVE BEEN WELL SUMMARIZED
6 IN THE POLICY STATEMENT I JUST READ.
7BY MR. STIRBA:
8 Q. ARE THERE -- AND DIRECTING YOUR ATTENTION SPECIFICALLY TO
9 THE PERIOD OF '95 AND '96, ARE THERE AUTHORITATIVE TEXTS OR
10 TREATISES THAT MIGHT HAVE RELEVANCE TO YOUR OPINIONS IN THIS
11 CASE?
12 A. YES.
13 Q. AND COULD YOU TELL US WHAT THOSE ARE?
14 A. THERE ARE A NUMBER OF THEM, AND I'VE BROUGHT SORT OF A
15 COLLECTION OF THEM PARTLY TO SUPPORT THE FACT THAT THERE IS
16 INDEED A SPECIFIC AREA OF EXPERTISE THAT IN THIS -- IN THIS
17 AREA THAT REQUIRES AN UNDERSTANDING AND KNOWLEDGE OF THE
18 PARTICULAR LITERATURE THAT PERTAINS TO TREATMENT OF THESE
19 TYPES OF PATIENTS. THERE ARE MANY SUBSECTIONS THAT I COULD
20 REFER TO AND I DON'T KNOW HOW EXTENSIVELY YOU WANT ME TO DO
21 THAT.
22 Q. WELL, PERHAPS YOU COULD IDENTIFY WHAT YOU'VE BROUGHT WITH
23 YOU THAT YOU THINK IS AUTHORITATIVE AND SUBSTANTIATES THE
24 OPINIONS YOU WERE GOING TO TESTIFY TO.
25 A. I'LL JUST LIST THEM. THERE'S -- PROBABLY THE MOST RECENT
20
1 IS A PUBLICATION BY ACTUALLY A GROUP AT THE UNIVERSITY OF UTAH
2 THAT --
3 MR. WILSON: YOUR HONOR, AGAIN, I'M GOING TO IMPOSE
4 AN OBJECTION AS TO THE AUTHORATIVE (SIC) TEXT UNLESS THERE'S
5 SOME FOUNDATION ESTABLISHED AS TO HOW IT RELATES TO THIS
6 PARTICULAR CASE.
7 MR. STIRBA: THAT'S PRECISELY WHAT I'M TRYING TO DO,
8 YOUR HONOR. I'VE ASKED IT IN THAT CONTEXT.
9 THE COURT: OKAY. OVERRULED.
10BY MR. STIRBA:
11 Q. GO AHEAD.
12 THE COURT: WE NEED TO KNOW THE DATES OF THESE
13 PUBLICATIONS.
14 THE WITNESS: THE FIRST IS A TEST ENTITLED
15 EVIDENCED-BASED SYMPTOM CONTROL AND PALLIATIVE CARE. AND THE
16 PUBLICATION DATE I BELIEVE IS 2000. IT IS THIS YEAR. BUT IT
17 REVIEWS THE EVIDENCE DATING BACK MANY, MANY YEARS, TEN, 15
18 YEARS, SO IT WOULD PERTAIN TO THE PERIOD OF TIME WE'RE --
19 WE'RE SPEAKING OF. THE -- ANOTHER IS A TEXT ENTITLED
20 PALLIATIVE CARE ETHICS. AND IT IS A COMPREHENSIVE REVIEW OF
21 ALL THE ETHICAL ETHICS ASPECTS OF TREATING PATIENTS WITH
22 CHRONIC DISEASE AND FAR-ADVANCED DISEASE AND ULTIMATELY
23 TERMINAL DISEASE.
24BY MR. STIRBA:
25 Q. DOES IT HAVE A PUBLICATION DATE?
21
1 A. I'M LOOKING FOR IT. THE COPYRIGHT DATE OF THIS IS 1996.
2 Q. OKAY. WHAT ELSE DO YOU HAVE?
3 A. BOOK ENTITLED PAIN RELIEF IN ADVANCED CANCER. AND
4 ALTHOUGH THESE PATIENTS DIDN'T SUFFER FROM CANCERS, WHAT THIS
5 BOOK DOES IS PRESENT A LOT OF LITERATURE REVIEWS ON ANALGESIC
6 REQUIREMENTS FOR PATIENTS WITH PAIN CONDITIONS INCLUDING THOSE
7 THROUGH EITHER THEIR NINTH DECADE, NINTH AND TENTH DECADES OF
8 LIFE. SO IT WAS -- IT'S AN IMPORTANT REFERENCE RESOURCE FROM
9 THAT STANDPOINT. AND IT WAS PUBLISHED IN 1994.
10 Q. OKAY.
11 A. ANOTHER IS A BOOK CALLED THE PAIN DRUGS HANDBOOK THAT
12 GIVES REFERENCE TO DRUG DOSING. AND IT HAS A PUBLICATION DATE
13 OF 1995. ANOTHER IS A BOOK ENTITLED PALLIATIVE MEDICINE, A
14 CASE-BASED -- A CASE-BASED MANUAL THAT GOES THROUGH CLINICAL
15 CASE EVALUATION FOR TEACHING PURPOSES, AND IT WAS PUBLISHED IN
16 1998. ANOTHER IS THE COUNCIL ON ETHICAL AND JUDICIAL AFFAIRS
17 CODE OF MEDICAL ETHICS CURRENT OPINIONS WITH ANNOTATIONS. AND
18 IT'S THE 1994 EDITION, SO IT WOULD HAVE BEEN IN EFFECT AT THE
19 TIME OF THESE CASES. AND ANOTHER IS TOPICS IN PALLIATIVE
20 CARE, VOLUME FOUR. IT SPECIFICALLY ADDRESSES SURVIVAL
21 ESTIMATION IN NONCANCER PATIENTS WITH ADVANCED DISEASE, AND IS
22 PERTINENT TO PATIENTS WITH DEMENTING DISEASE AND
23 CO-MORBIDITIES.
24 Q. BY THE WAY, YOU'VE USED THAT WORD TWICE. WHEN YOU SAY
25 CO-MORBIDITIES, WHAT DO YOU MEAN?
22
1 A. THAT MEANS PATHOLOGICAL CONDITIONS THAT ARE IN ADDITION
2 TO THE PRIMARY DIAGNOSIS.
3 Q. THESE PATHOLOGICAL CONDITIONS, ARE THEY OF THE -- IN THE
4 NATURE OF LIFE-THREATENING?
5 A. WITH WHAT -- WHEN IN COMBINATION WITH EITHER THEMSELVES
6 OR THE PRIMARY DISEASE, IT IS WELL DEMONSTRATED
7 EPIDEMIOLOGICALLY THAT INDEED THEY DO CREATE A
8 LIFE-THREATENING CONDITION.
9 Q. AND BASED UPON YOUR REVIEW OF THE RECORDS IN THIS CASE,
10 DID THE PATIENTS OR ANY ONE OF THEM SUFFER FROM THESE
11 CO-MORBID CONDITIONS?
12 A. WITHOUT DIRECTLY REFERRING TO THEM, BEST OF MY
13 RECOLLECTION, THEY ALL HAD ONE OR MORE CO-MORBIDITIES.
14 Q. ALL RIGHT. PROCEED ON WITH THE MATERIALS YOU HAVE IN
15 FRONT OF YOU, WHICH YOU BELIEVE ARE AUTHORITATIVE AND ASSIST
16 YOU WITH RESPECT TO THE OPINIONS YOU HAVE IN THIS CASE.
17 A. WELL, THE LAST IS SORT OF, FOR LACK OF A BETTER TERM,
18 IT'S THE TERM WE GENERALLY DO USE IN SORT OF MEDICAL
19 DISCUSSIONS AROUND THESE TYPES OF THINGS, THE BIBLE OF -- OF
20 THIS PARTICULAR AREA OF MEDICAL SPECIALTY, WHICH IS ENTITLED
21 THE OXFORD TEXTBOOK OF PALLIATIVE MEDICINE. THIS IS THE
22 SECOND EDITION. THE FIRST EDITION WAS PUBLISHED IN THE EARLY
23 NINETIES, AND THE SECOND EDITION WAS PUBLISHED IN 1998.
24 Q. NOW, IS THERE A PARTICULAR WAY, FOR EXAMPLE, THE OXFORD
25 BOOK OF PALLIATIVE MEDICINE, THAT YOU HAVE USED THAT FOR
23
1 PURPOSES OF YOUR OPINIONS IN THIS CASE?
2 A. WHEN I FIRST DEVELOPED MY OPINIONS REVIEWING THE MEDICAL
3 RECORDS, I DID NOT SPECIFICALLY REFER TO ANY OF THESE TEXTS.
4 THE -- THE BASES FOR WHICH I CREATED THOSE OPINIONS WERE ON
5 THE -- ON THE BASIS OF MY STUDIES AND KNOWLEDGE OF THE
6 LITERATURE, AND THEN EXPERIENCE IN END-OF-LIFE CARE ITSELF.
7 BUT I'VE REFERRED BACK TO THESE TEXTS TO ASSURE -- TO INSURE
8 MYSELF THAT MY THOUGHT PROCESSES WERE APT AND THAT I WAS
9 REFLECTING THE LITERATURE AND THE -- MY SO-CALLED EXPERTISE
10 CORRECTLY.
11 Q. AS YOU SIT HERE TODAY, CAN YOU GIVE US AN EXAMPLE OF HOW
12 YOU CONFIRMED THAT WITH THE OXFORD BOOK OF PALLIATIVE
13 MEDICINE?
14 A. WELL, THERE'S ONE SECTION, FOR INSTANCE, THAT'S ENTITLED
15 PAIN IN THE DELIRIOUS PATIENT THAT REALLY REFERS TO AND
16 REVIEWS SOME OF THE ISSUES AROUND THE TREATMENT -- ASSESSMENT
17 AND TREATMENT OF PATIENTS IN THE CONDITIONS IN WHICH THEY WERE
18 ADMITTED TO THE TREATMENT CENTER, THE GEROPSYCHIATRIC
19 TREATMENT CENTER. ANOTHER SECTION THAT REFERS IN TERMS OF
20 PSYCHIATRIC ASPECTS OF PALLIATIVE CARE, WHICH I THINK CLEARLY
21 ARE PERTINENT HERE, THAT REFER TO DRUGS AND DOSAGES IN ORDER
22 BRING SYMPTOMS UNDER CONTROL.
23 Q. IN THE AREA OF END-OF-LIFE CARE, IS THERE A
24 WELL-RECOGNIZED STANDARD OF CARE INSOFAR AS HOW THAT IS
25 PRACTICED HERE IN THE STATE OF UTAH?
24
1 A. I THINK IT'S FAIR TO STATE THAT THERE'S -- ONE COULD
2 ASCRIBE TO BEST PRACTICES. BUT IN ORDER TO REALLY STATE THAT
3 THERE IS A STANDARD OF CARE WOULD BE VERY DIFFICULT TO PUT
4 ONE'S FINGER ON BECAUSE THERE IS SUCH A PAUCITY OF TRAINING AT
5 EITHER THE UNDERGRADUATE OR GRADUATE OR POST GRADUATE LEVELS.
6 EVERY PHYSICIAN TENDS TO PRACTICE AS HE OR SHE SORT OF LEARNED
7 FROM SOMEBODY ELSE WHO WAS NOT FORMALLY TRAINED, AND SORT OF
8 CARRIES THEIR SORT OF ANECDOTES OR IDIOSYNCRATIC PRACTICES TO
9 THE FORE. AND THE STUDIES THAT HAVE BEEN DONE SHOW THAT MORE
10 OFTEN THAN NOT, THERE IS INEFFECTIVE CARE AND TREATMENT OF
11 SYMPTOMS OF PATIENTS WITH FAR-ADVANTAGED DISEASE. AND AGAIN,
12 BOTH IN THIS STATE AND MOST OTHERS. SO THE STANDARD IS QUITE
13 FAR-RANGING, AND RANGES FROM THE EXTREMES AS THEY'RE FOUND IN
14 THE STATE OF OREGON, WITH PHYSICIAN-ASSISTED SUICIDE, WHICH BY
15 THE WAY I'M VEHEMENTLY OPPOSED TO, TO DOING NOTHING AT ALL AND
16 LEAVING PEOPLE ALONE AND ABANDONED TO DIE IN PAIN AND
17 SUFFERING WITH NO ATTENTION WHATSOEVER, WHICH OF COURSE I'M
18 ALSO VEHEMENTLY OPPOSED TO. AND SO EVERYTHING IN THE MIDDLE
19 IS WHAT WE SEE PRACTICED IN OUR STATE.
20 Q. BASED ON YOUR REVIEW OF THE RECORDS, DID YOU COME TO AN
21 OPINION WITH RESPECT TO CHARACTERIZING THE QUALITY OF THE
22 END-OF-LIFE CARE PROVIDED BY DR. WEITZEL AS IT MIGHT BE
23 RELATIVE TO THE OTHER PHYSICIANS IN THIS STATE?
24 A. COULD YOU REPEAT THAT AGAIN? I'M SORRY, I GOT DISTRACTED
25 BY SOME CONVERSATION OR GRIMACING OR SOMETHING --
25
1 Q. SURE. I WAS ASKING YOU BASED UPON YOUR REVIEW OF THE
2 RECORDS, DID YOU FORM AN OPINION AS TO THE QUALITY OF THE END
3 OF CARE -- END-OF-LIFE CARE PRACTICED BY AND PROVIDED BY
4 DR. WEITZEL AS IT MIGHT RELATE TO OTHER CIRCUMSTANCES AND
5 OTHER PHYSICIANS IN THIS STATE?
6 A. TO MY KNOWLEDGE OF OTHER CONDITIONS AND CIRCUMSTANCES,
7 I'VE SEEN CARE VERY SIMILAR TO WHAT HAS BEEN -- WAS PRACTICED
8 BY DR. WEITZEL, AND I'VE SEEN THE COMPLETE OPPOSITE AND
9 EVERYTHING IN THE MIDDLE. BUT WHAT DR. WEITZEL DID WAS -- WAS
10 NOT -- COULD NOT BE DESCRIBED AS HIGHLY ATYPICAL OR AN
11 EXTRAORDINARY ABERRATION OF HOW SOME PHYSICIANS CHOOSE TO
12 PRACTICE END-OF-LIFE CARE IN ORDER TO MEET THEIR MORAL
13 OBLIGATIONS, THEIR DUTIES.
14 Q. NOW, TELL THE COURT WHY YOU SAY THAT, WHY HIS SITUATION
15 WAS NOT ATYPICAL.
16 A. WELL, AGAIN, YOU KNOW, THE -- THE WIDE ARRAY AND
17 DISSIMILAR NATURES OF THE WAY THIS TYPE OF CARE IS PRACTICED
18 ALLOWS FOR ALL SORTS OF PRACTICES TO OCCUR. AND DR. WEITZEL'S
19 CARE, JUST AS AN EXAMPLE OF ONE OF MANY SIM -- YOU KNOW,
20 SIMILAR OR DIFFERENT TYPES OF CARE. IT'S LIKE LOOKING IN A
21 BOX OF CRAYONS AND SAYING, WHAT'S A STANDARD COLOR? WELL
22 THERE'S THIS WIDE ARRAY OF COLORS, AND IF YOU SAID, YOU KNOW,
23 THERE'S A BUNCH OF ONES THAT SORT OF LOOK LIKE RED. IS ONE
24 SORT OF MORE RED THAN THE OTHER. AND YOU SAY, WELL, THERE'S A
25 GROUP OF RED ONES, BUT THERE'S ALSO A GROUP THAT ARE
26
1 EXTRAORDINARILY DIFFERENT AND RED AS WELL. AND IN MY --
2 AGAIN, MY EVALUATION, ESTIMATION OF DR. WEITZEL'S CARE AS IT
3 PERTAINED TO THESE PARTICULAR PATIENTS, IT FELL WITHIN THE
4 BOUNDS OF WHAT IS VIEWED AS ETHICAL AND APPROPRIATE CARE FOR
5 PATIENTS IN THOSE CIRCUMSTANCES.
6 Q. YOU TESTIFIED BEFORE ABOUT THE DOCTRINE OF DOUBLE EFFECT.
7 DO YOU REMEMBER THAT?
8 A. YES.
9 Q. AND DOES THAT HAVE APPLICATION TO THE CIRCUMSTANCES THAT
10 YOU REVIEWED IN THIS CASE?
11 A. I BELIEVE IT DOES, YES.
12 Q. AND TELL US WHY.
13 A. I THINK IT MEETS MOST OF, IF NOT -- SOME IN PART AND
14 SOME -- IN SOME CASES ALL OF THE FOUR REQUISITES FOR THAT
15 DOCTRINE.
16 Q. AND WHY DON'T YOU EXPLAIN PLEASE IF YOU COULD WHAT THE
17 REQUISITES ARE AND HOW IT IS RELEVANT TO WHAT YOU DETERMINED
18 BASED UPON YOUR EVALUATION.
19 A. WELL, THE FIRST IS THAT THERE DOES HAVE TO BE A -- AN
20 INTENT TO TREAT AND THAT THE TREATMENT HAS TO HAVE -- BE
21 JUSTIFIED BY THE CLINICAL CIRCUMSTANCES. THAT THERE IS A
22 FORESEEABLE HARM THAT CAN COME FROM THE TREATMENT. OTHERWISE,
23 THERE WOULD BE NO -- NO DOUBLE EFFECT POSSIBLE, THAT --
24 THAT --
25 MR. WILSON: EXCUSE ME, DOCTOR, I DIDN'T CATCH THAT
27
1 LAST WORD YOU USED. THERE WAS A --
2 THE WITNESS: DOUBLE -- THERE WOULD NO DOUBLE EFFECT
3 POSSIBLE.
4 MR. WILSON: WELL, NO, JUST BEFORE THAT, YOU SAID
5 THAT THERE WAS AN INTENT TO WHAT?
6 THE WITNESS: TO TREAT.
7 MR. STIRBA: TO TREAT.
8 MR. WILSON: TO TREAT.
9 THE WITNESS: TO TREAT.
10 MR. WILSON: AND THEN I THINK YOU SAID THERE WAS
11 SOMETHING AFTER.
12 THE WITNESS: OH FOR -- THERE HAS TO BE A FORESEEABLE
13 POTENTIAL HARM.
14 MR. WILSON: OKAY.
15 THE WITNESS: THAT'S WHY OTHERWISE THERE WOULD BE NO
16 DOUBLE EFFECT. IF THERE WAS ONLY ONE POSSIBLE OUTCOME FOR THE
17 GOOD, THEN THERE WOULD BE NO DOUBLE EFFECT.
18 THIRDLY, THAT THE ENDS CANNOT JUSTIFY THE MEANS. THAT IS
19 TO SAY, YOU CANNOT PALLIATE BY CAUSING. IN THIS CASE, FOR
20 INSTANCE, YOU CANNOT PALLIATE BY CAUSING DEATH, BUT DEATH CAN
21 BE A FORESEEABLE OCCURRENCE OF PALLIATION. THAT IS TO SAY,
22 YOU KNOW, YOU CAN 100 PERCENT GUARANTEE RELIEVING PAIN BY
23 KILLING PEOPLE. DEAD PEOPLE FEEL NO PAIN, PRESUMABLY. BUT
24 THAT CAN'T -- YOU CAN'T PURPOSEFULLY INDUCE THE OUTCOME YOU
25 WANT BY CAUSING THE UNWANTED EFFECT.
28
1 THAT'S -- AND THE LAST AND FOURTH IS THAT THERE MUST BE
2 SOME REASONABLE ATTEMPT TO -- TO GARNER INFORMED CONSENT. AND
3 IN THESE PARTICULAR CASES, PATIENTS COULD NOT GIVE INFORMED
4 CONSENT, AND SO INFORMED CONSENT WOULD HAVE TO BE BY PROXY,
5 EITHER BY LEGAL PROXY OR BY ASSOCIATED PROXY, FAMILY MEMBERS
6 OR A PATIENT'S ADVANCED DIRECTIVES OR SOME -- SOMETHING
7 SIMILAR TO THAT NATURE.
8BY MR. STIRBA:
9 Q. DOES THE FACT OR THE CONCEPT OF HASTENING ONE'S DEATH
10 THROUGH MEDICATION, DOES THAT HAVE ANY RELEVANCE TO THE
11 CONCEPT OR THE DOCTRINE OF DOUBLE EFFECT?
12 A. WELL, THE DOCTRINE OF DOUBLE EFFECT EXISTS ALMOST
13 UNIVERSALLY THROUGHOUT EVERY MEDICAL TREATMENT. AND THE MORE
14 DANGEROUS MEDICAL TREATMENTS ARE, THE MORE IT APPLIES. MOST
15 RECENTLY, IT'S GAINED ATTENTION AND HAS BEEN ON THE FOREFRONT
16 OF ISSUES INCLUDING LEGISLATIVE ONES WE TALKED ABOUT LAST TIME
17 BECAUSE OF THIS ISSUE OF -- OF THE -- THE NECESSITY TO TREAT
18 PAIN AND TO MITIGATE SUFFERING AND THE CONCERN AND FEARS THAT
19 PHYSICIANS HAVE OF BEING PROSECUTED IF DEATH OCCURS, SO THE
20 ETHICAL STANDARD OR THE ETHICAL DOCTRINE OF DOUBLE EFFECT HAS
21 BEEN SORT OF REINVOKED AND LOOMS LARGE SPECIFICALLY TO ADDRESS
22 THAT.
23 Q. IS THAT DOCTRINE WELL RECOGNIZED IN THE FIELD OF MEDICAL
24 ETHICS FOR THE PRACTICE OF MEDICINE?
25 A. YES.
29
1 Q. DO YOU KNOW WHAT PROGNOSTICATION IS?
2 A. YES, SIR.
3 Q. AND WHAT IS THAT?
4 A. PROGNOSTICATION IS SORT OF A THIRD ARM OF APPLICATION OF
5 MEDICAL SCIENCE, WHICH THE DIAGNOSIS IS THE FIRST, TREATMENT
6 IS THE SECOND, AND THEN PROGNOSIS IS THE THIRD, MEANING THE
7 LIKELY OUTCOME OF EITHER TREATED OR UNTREATED DISEASE.
8 Q. DOES PROGNOSTICATION HAVE ANY SIGNIFICANCE OR IMPORTANCE
9 FOR PURPOSES OF YOUR OPINIONS IN THIS CASE?
10 A. YES, IT DOES.
11 Q. AND TELL US HOW SO.
12 A. THE WILLINGNESS OR ABILITY TO PROGNOSTICATE CLEARLY
13 DEFINES THE CLINICAL PATH THAT A PHYSICIAN WILL GO ON IN
14 MAKING TREATMENT DECISIONS. AND IN THESE CASES,
15 PROGNOSTICATION OF LIMITED LIFE EXPECTANCY ALLOWS FOR
16 AGGRESSIVE TREATMENT OF SYMPTOMS EVEN AT THE RISK OF HASTENING
17 DEATH.
18 Q. DID DR. WEITZEL PROGNOSTICATE IN THESE CASES?
19 A. I DID NOT SEE ANY SPECIFIC, FORMAL APPLICATION OF
20 PROGNOSTICATION PROCESS IN DR. WEITZEL'S RECORDS. THERE WERE
21 ALLUSIONS TO LIMITED LIFE EXPECTANCY AND TERMINALITY AND SO
22 FORTH, BUT I COULD HARDLY CALL THAT A FORMAL PROGNOSTICATION
23 PROCESS.
24 Q. DO PHYSICIANS HAVE A DUTY TO PROGNOSTICATE?
25 A. THE REASON I'M HESITATING WITH THAT QUESTION IS IN SORT
30
1 OF ETHICAL TERMS, THE ANSWER IS CLEARLY YES. IN TERMS OF
2 PRACTICAL TERMS AND HOW THINGS ARE DONE, PROGNOSTICATION IN
3 THIS AREA IS RARELY IF EVER DONE AND --
4 Q. IN WHAT AREA IS THAT, DOCTOR, THAT IT'S REARLY OR EVER
5 DONE?
6 A. IN THE AREA OF END-OF-LIFE CARE OR IN THE AREA OF
7 PATIENTS WITH CHRONIC DISEASES AND FAR ADVANCED --
8 FAR-ADVANCED DISEASES.
9 Q. AND IS THAT SIGNIFICANT?
10 A. I BELIEVE IT'S QUITE SIGNIFICANT.
11 Q. AND HOW SO?
12 A. IN THAT THE STUDIES THAT HAVE LOOKED AND EVALUATED THE
13 RESULTS OF THE FAILURE TO PROGNOSTICATE IN THESE POPULATIONS
14 SHOWS THAT, FIRST OF ALL, PHYSICIANS RARELY IF EVER ARE
15 WILLING TO FORMULATE A PROGNOSIS, AND RARELY IF EVER DO SO
16 FORMALLY IN THESE POPULATIONS. AND WHEN -- IN STUDIES ASKED
17 TO DO SO, THE ABSENCE OF FORMAL TRAINING AND PRACTICE IN DOING
18 THIS AND FAMILIARITY WITH THE LITERATURE AND THE DETERMINANTS
19 THAT ALLOW ONE TO MAKE PROGNOSES SHOWS THAT PHYSICIANS TEND TO
20 OVERESTIMATE LIFE EXPECTANCY IN THESE TYPES OF PATIENTS BY AN
21 ORDER OF FIVEFOLD. AND SO IN ACTUAL TERMS, PHYSICIANS ERR
22 CONSIDERABLY WITH A SENSE OF I GUESS FALSE HOPE OR OPTIMISM,
23 AND WHAT THAT LEADS TO IS THE INAPPLICABLE -- OR THE LACK OF
24 APPLICATION OF APPROPRIATE MEDICAL AND SOCIAL SERVICES.
25 Q. NOW, WOULD THE FAILURE -- OR THE FAILURE TO
31
1 PROGNOSTICATE, AS YOU JUST TESTIFIED, DOES THAT HAVE ANY
2 RELEVANCE TO THIS PARTICULAR CASE?
3 A. WELL, WE ADDRESSED EARLIER THE ISSUES OF WOULD I HAVE
4 LIKED TO HAD AND IN THE, YOU KNOW, IN REVIEWING THIS CASE AS
5 COMPLETELY, THE NURSING HOME RECORDS OF THESE PATIENTS, AND IF
6 I'D HAD THE NURSING HOME RECORDS TO REVIEW ONE -- IN LOOKING
7 AT -- AT THE CASE AS A WHOLE, WHAT I WOULD HAVE WANTED TO
8 GARNER FROM THAT IS AN UNDERSTANDING OF TO WHAT DEGREE THE
9 PHYSICIANS WHO HAVE BEEN WORKING WITH THESE PATIENTS HAD BEEN
10 WILLING OR HAD -- NOT ONLY BEEN WILLING BUT HAD FORMALLY
11 UNDERGONE PROGNOSTICATION PROCESSES, HAD MET WITH AND
12 DISCUSSED THOSE FINDINGS WITH THE FAMILIES, HAD LED THEM DOWN
13 THE I THINK ETHICAL OBLIGATORY PATH TO HELPING THEM TO COME TO
14 TERMS WITH THE END OUTCOMES OF THESE DISEASE PROCESSES SO THAT
15 THEY -- SO GOOD ADVANCE CARE PLANNING COULD BE APPLIED AND
16 THAT PREVENTATIVE STRATEGIES FOR THE EXACT TYPES OF SYMPTOMS
17 AND CIRCUMSTANCES THAT THESE PATIENTS ENDED UP FINDING
18 THEMSELVES IN AND THE PREVENTION OF CRISES.
19 Q. ASSUMING A FAILURE TO DO THAT, WHAT IMPACT IF ANY WOULD
20 THAT HAVE HAD WITH RESPECT TO THE CARE PROVIDED BY
21 DR. WEITZEL?
22 A. WELL, WHAT I SAW WAS PATIENTS IN CRISIS. I MEAN THAT'S
23 THE REASON THEY WERE ADMITTED. I MEAN THAT'S A
24 TELEOLOGICAL -- I MEAN, EXCUSE ME, A TAUTOLOGICAL ARGUMENT. I
25 MEAN THE PATIENTS WERE ADMITTED TO THAT UNIT BECAUSE THEY WERE
32
1 IN CRISIS. AND ESSENTIALLY IT APPEARED THAT DR. WEITZEL FOUND
2 HIMSELF CONFRONTED BY THESE VERY COMPLEX CLINICAL
3 CIRCUMSTANCES THAT HAD -- WHERE THERE DID NOT APPEAR TO BE
4 SORT OF A SENSE OF WHAT THE INEVITABLE OUTCOME WAS GOING TO BE
5 OF THESE DISEASE PROCESSES NOR DISCUSSIONS ABOUT THE FACT THAT
6 THESE PATIENTS MAY HAVE BEEN IN CRISIS BECAUSE OF UNTREATED
7 PAIN AS ONE OF THE POTENTIAL CAUSES OF THEIR SYMPTOMS. AND
8 THIS THEN BECAME A -- I DON'T KNOW, CAN'T THINK OF A NICER WAY
9 TO SAY, BUT THESE CASES WERE THEN SORT OF DUMPED OR IMPOSED
10 UPON -- UPON A PHYSICIAN WITHOUT THE HISTORICAL EXPERIENCE
11 WITH THESE FAMILIES OR WITH THESE PATIENTS TO -- TO GO ON.
12 Q. NOW, DO YOU HAVE YOUR NOTES THERE WITH YOU OF YOUR
13 REVIEWS THAT YOU DID OF THE PATIENT RECORDS?
14 A. YES, I DO.
15 Q. AND I BELIEVE YOU TOLD US LAST TIME THAT YOU WERE
16 PROVIDED SOME MEDICAL RECORDS RELATING TO EACH ONE OF THE FIVE
17 PATIENTS, IS THAT RIGHT?
18 A. THAT'S CORRECT.
19 Q. AND YOU DID IN FACT REVIEW THOSE, CORRECT?
20 A. THAT'S CORRECT.
21 Q. SPECIFICALLY -- AND YOU CAN USE YOUR NOTES IF THAT WOULD
22 ASSIST. WOULD THAT ASSIST YOU FOR PURPOSES OF TESTIFYING MORE
23 SPECIFICALLY ABOUT EACH ONE?
24 A. YES.
25 Q. THE FIRST QUESTION I WANNA ASK YOU IS -- AND PERHAPS YOU
33
1 CAN GO -- WE CAN GO THROUGH THESE ONE BY ONE. BUT IS IT YOUR
2 OPINION BASED UPON YOUR REVIEW OF THE RECORDS THAT EACH ONE OF
3 THESE PATIENTS WAS SUFFERING FROM A TERMINAL CONDITION OR WAS
4 TERMINAL ON ADMISSION TO THE HOSPITAL?
5 A. YES.
6 Q. AND GENERALLY WHY IS THAT?
7 A. HOW DID I -- I'M NOT SURE I UNDERSTAND --
8 Q. GENERALLY WHAT IS THE REASON FOR THAT OPINION, JUST AS A
9 GENERAL PROPOSITION?
10 A. WELL, BASED UPON THE MEDICAL INFORMATION IN THE --
11 DOCUMENTED IN THE CHARTS, THAT THEY HAD EITHER PRIMARY OR
12 CO-MORBIDITY SECONDARY CO-EXISTING CONDITIONS THAT WOULD HAVE
13 MET THE ONLY CURRENTLY OPERATIONAL DEFINITION OF TERMINALITY
14 IN HEALTH CARE TODAY, WHICH IS THE ONE PROVIDED THROUGH -- BY
15 THE HOSPICE MEDICARE BENEFIT, WHICH IS A LIFE EXPECTANCY OF
16 SIX MONTHS OR LESS IF THE DISEASE RUNS ITS USUAL COURSE.
17 Q. NOW, IN THE DEPARTMENT OF ANESTHESIOLOGY AND IN YOUR
18 EXPERIENCE IN WORKING IN THAT PARTICULAR DEPARTMENT, IS -- ARE
19 THERE OTHER DISCIPLINES THAT MIGHT HAVE A DIFFERENT DEFINITION
20 OF WHAT TERMINAL MEANS?
21 A. IN ANESTHESIOLOGY, TERMINAL IS ACTUALLY DEFINED AS A --
22 AS A A.S.A., WHICH STANDS FOR AMERICAN SOCIETY OF
23 ANESTHESIOLOGISTS CATEGORY PHYSICAL -- PHYSICAL STATUS 5,
24 WHICH MEANS THE PATIENT IS UNLIKELY TO SURVIVE MORE THAN HOURS
25 TO DAYS. BUT THAT'S -- THAT'S REALLY UNIQUE TO
34
1 ANESTHESIOLOGY. IT TAKES ON VARIOUS FORMS AND DEFINITIONS IN
2 DIFFERENT MEDICAL SPECIALTIES, AND SO I COULD -- I SUPPOSE ONE
3 COULD SAY IT'S OPERATIONALIZED IN THAT FASHION IN
4 ANESTHESIOLOGY, BUT THAT'S THE ONLY DEFINITION OR USE OF THE
5 TERM THAT'S -- THAT IS TAUGHT IN ANESTHESIOLOGY AS A
6 DISCIPLINE.
7 Q. WOULD THAT PARTICULAR DEFINITION HAVE ANY APPLICATION TO
8 THE CASES THAT YOU REVIEWED?
9 A. WELL, THERE WERE SOME, YOU KNOW, SOME OF THE CASES
10 OBVIOUSLY WERE MORE ADVANCED THAN OTHERS, BUT I WOULD SAY THAT
11 IF ANY OF THESE PATIENTS REQUIRED SURGERY, THERE WAS THE --
12 AND IN THESE CASES, I CAN ONLY IMAGINE PALLIATIVE SURGERY
13 WOULD -- AND SOMETIMES WE DO THAT FOR RELIEF OF SYMPTOMS, THAT
14 MORE LIKELY THAN NOT, ALL THESE PATIENTS WOULD HAVE BEEN
15 CATEGORIZED AS CATEGORY FOUR OR FIVE PATIENT.
16 Q. WHAT DOES THAT MEAN?
17 A. FOUR WOULD HAVE BEEN -- WOULD MEAN SERIOUS ILLNESS AND
18 MORBIDITIES THAT -- THAT WITH -- EVEN WITH SURGERY, THE
19 PATIENT IS NOT EXPECTED TO LIVE MORE THAN A MATTER OF PERHAPS
20 WEEKS TO MONTHS.
21 Q. WHAT DOES FIVE MEAN?
22 A. FIVE IS EVEN WITH SURGERY, THAT WITH OR WITHOUT SURGERY.
23 SO EVEN WITH SURGERY, THE PATIENT WOULD NOT BE EXPECTED TO
24 LIVE HOURS TO DAYS FOLLOWING THE PROCEDURE.
25 Q. NOW, YOU'VE REVIEWED DR. HARE'S -- A TRANSCRIPT OF DR.
35
1 HARE'S TESTIMONY AT THE TRIAL, IS THAT RIGHT?
2 A. THAT'S CORRECT.
3 Q. AND I ASKED YOU TO DO THAT.
4 A. YES.
5 MR. WILSON: YOUR HONOR, I THINK I'M GOING TO
6 INTERPOSE AN OBJECTION AT THIS POINT BECAUSE HIS TESTIMONY AS
7 IT RELATED TO DR. HARE'S TESTIMONY IN COURT WOULD -- AND I
8 GUESS MY OBJECTION GOES TO THIS: THAT WOULD NOT HAVE BEEN
9 AVAILABLE TO HIM AT THE TIME OF THESE PROCEEDINGS. HE'S HAD
10 THE BENEFIT NOW OBVIOUSLY OF REVIEWING DR. HARE'S TESTIMONY IN
11 THAT CONTEXT. AND I THINK WHAT WE HAVE TO LOOK AT HERE IS
12 WHAT WOULD HIS TESTIMONY'D BE BASED UPON A REVIEW OF THE
13 RECORDS, AND WHAT WOULD HE HAVE TESTIFIED TO AS AN EXPERT
14 WITNESS ON BEHALF OF THE DEFENSE IN THESE PROCEEDINGS, NOT AS
15 TO HIS REVIEW OF DR. HARE'S TESTIMONY.
16 MR. STIRBA: THE REASON WHY I BRING IT UP, JUDGE, I
17 THINK THAT'S WRONG. THE STATE GOES FIRST. DR. FINE EITHER
18 WOULD HAVE HAD ACCESS TO A TRANSCRIPT OR COULD HAVE SAT IN THE
19 AUDIENCE AND LISTENED TO ALL THE TESTIMONY, AND CERTAINLY I
20 WOULD BE I THINK ALLOWED TO ASK HIM NOT TO COMMENT ON
21 DR. HARE'S CREDIBILITY, BUT TO COMMENT UPON EXPERT OPINION
22 THAT WAS RENDERED INSOFAR AS WHETHER IT AGREED WITH HIM. SO
23 THAT'S WHY I'M ASKING HIM.
24 THE COURT: OKAY. OVERRULED. I THINK THE QUESTION
25 IS IF IT -- IF THE INFORMATION ABOUT DR. FINE WOULD HAVE BEEN
36
1 DISCLOSED, HE WOULD HAVE BEEN IN THAT POSITION.
2 MR. STIRBA: THANK YOU.
3 Q. YOU'VE REVIEWED THE TRANSCRIPT OF DR. HARE?
4 A. YES.
5 Q. AND I ASKED YOU TO DO THAT?
6 A. YES.
7 Q. AND DO YOU RECALL, HE RENDERED AN OPINION IN VARIOUS
8 PORTIONS OF THAT, THAT THESE PATIENTS WERE NOT IN FACT
9 TERMINAL ON ADMISSION; DO YOU REMEMBER THAT?
10 A. I DO REMEMBER THAT.
11 Q. AND DOES YOUR OPINION AGREE WITH THE OPINION OF DR. HARE
12 IN THAT REGARD?
13 A. I DISAGREE WITH DR. HARE'S OPINION.
14 Q. AND WHY DO YOU BELIEVE THAT TO BE THE CASE?
15 A. WELL, AS I'VE STATED, I BELIEVE THAT THESE PATIENTS DID
16 MEET THE OPERATIONAL DETERMINANTS FOR TERMINAL DISEASE. AND I
17 BELIEVE THAT DR. HARE MADE A QUALIFYING STATEMENT WHICH I WILL
18 NOT QUOTE DIRECTLY SINCE I DON'T HAVE IT IN FRONT OF ME,
19 BUT -- BUT HIS QUALIFYING STATEMENT WAS TO THE EFFECT THAT
20 SINCE THESE PATIENTS WEREN'T DYING IN A MATTER OF HOURS OR
21 DAYS, THEY COULD NOT BE DEFINED AS TERMINAL. AND DR. HARE'S
22 DEFINITION WAS CLEARLY IN MY MIND GOING TO HIS EXPERTISE AND
23 CONTEXT OF ANESTHESIOLOGY PER SE AND NOT TOWARDS THE LARGER
24 AREA OF -- OF TREATMENT OF FAR-ADVANCED DISEASE AND
25 END-OF-LIFE CARE.
37
1 Q. DO YOU RECALL HIM ALSO TESTIFYING THAT HE DID NOT FIND
2 ANY LIFE-THREATENING ILLNESSES RELATING TO THESE PATIENTS?
3 A. YES, I RECALL THAT.
4 Q. AND DO YOU AGREE WITH THAT STATEMENT?
5 A. I DO NOT.
6 Q. AND TELL US WHY PLEASE.
7 A. THERE WAS DOCUMENTATION IN THE CHARTS REGARDING THESE
8 PATIENTS, THAT IN FACT, MORE THAN ONE OF THEM, AND I WOULD
9 HAVE TO REFER TO THE NOTES TO NAME THEM PRECISELY, WHICH WE
10 CAN DO, I GUESS --
11 Q. YEAH, I THINK IT MIGHT HELPFUL IF -- IF YOU WOULD,
12 PERHAPS MAYBE WE COULD REVIEW THEM ONE BY ONE, AND IF YOU
13 COULD GIVE US YOUR OPINION INSOFAR AS WHETHER THE PATIENT WAS
14 SUFFERING FROM ANY LIFE-THREATENING DISEASE PROCESS OR MALADY.
15 AND THE FIRST ONE, PERHAPS YOU HAVE YOUR NOTES FROM
16 MR. ALLDREDGE?
17 A. YES.
18 Q. AND BASED UPON YOUR REVIEW OF THE RECORDS, WERE YOU ABLE
19 TO IDENTIFY ANY LIFE-THREATENING DISEASE PROCESSES OR
20 CONDITIONS CONCERNING MR. ALLDREDGE?
21 A. MR. ALLDREDGE'S PRIMARY DIAGNOSE WAS ADVANCED -- WAS
22 DEMENTIA, WHICH IN AND OF ITSELF IS A LIFE-LIMITING DISEASE
23 PROCESS, BUT NOT NECESSARILY IMMINENTLY SO. I MEAN IT DEPENDS
24 ON WHERE ON THE SPECTRUM YOU FIND IT. BUT I THINK HE WENT
25 THROUGH A LOT OF CATEGORIZATION OF THIS DURING THE TRIAL, AT
38
1 LEAST FROM THE TRANSCRIPTS THAT I READ, AND THAT MR.
2 ALLDREDGE'S DEMENTIA HAD REACHED A LEVEL WHERE THERE WAS
3 REASONABLE EXPECTATION THAT IT WAS GOING TO PROGRESS WITHIN A
4 MATTER OF SEVERAL MONTHS WITH NO OTHER -- IF THERE WERE NO
5 OTHER PROCESSES SUPERVENING TO BE LIFE-LIMITING. IF THERE
6 WERE CO-MORBIDITIES THAT WERE EXTENSIVE, INCLUDING DIABETES,
7 CORONARY ARTERY DISEASE, THAT -- THAT THE LITERATURE DOES
8 SUGGEST THAT WITH THOSE SUPERVENING THAT LIFE LIMITATION IS
9 EVEN GREATER CURTAILED, OR LIFE EXPECTANCY IS EVEN GREATER --
10 MORE GREATLY CURTAILED INTO A MATTER OF MONTHS RATHER THAN
11 YEARS.
12 Q. WHEN YOU SAY THESE CO-MORBIDITIES, THIS IS IN CONJUNCTION
13 WITH HIS SEVERE DEMENTIA THAT MANIFESTED ITSELF AT THE TIME OF
14 ADMISSION?
15 A. YES.
16 Q. OKAY. DO YOU HAVE YOUR NOTES RELATING TO MARY CRANE?
17 A. I ACTUALLY -- BEFORE WE MOVE ON, SHALL I -- DO YOU WANT
18 ME TO MENTION ALL OF THE CO-MORBIDITIES?
19 Q. YES, PLEASE.
20 A. I STOPPED AT A COUPLE.
21 Q. YES.
22 A. I HAD MENTIONED DIABETES AND CORONARY DISEASE. THERE WAS
23 ALSO RENAL INSUFFICIENCY. MYCOSIS FUNGOIDES, WHICH IS A
24 LYMPHOCYTE MALIGNANCY. EVIDENCE OF DECREASED GAG REFLEX WITH
25 INCREASED EXASPERATION RISK WHICH IN AND OF ITSELF IS A -- IS
39
1 ONE OF THE LEADING CAUSES OF IMMINENT DEATH IN THESE PATIENTS.
2 URINARY INCONTINENCE, WHICH -- IT SPEAKS OF THE ADVANCED
3 NATURE OF HIS DEMENTIA. AND THEN PERIODIC BREATHING, WHICH IS
4 CONSISTENT WITH CENTRAL NERVOUS SYSTEM DYSFUNCTION. IT MOST
5 LIKELY AROSE FROM A CEREBRAL VASCULAR DISEASE AND HIS
6 RECENT -- AND HISTORY OF STROKE. AND I'M SORRY, THE NEXT
7 WAS --
8 Q. YES, MARY CRANE PLEASE.
9 A. I HAVE THAT BEFORE ME.
10 Q. YES. WERE YOU ABLE TO IDENTIFY BASED UPON YOUR REVIEW OF
11 THE RECORDS PROVIDED BY THE STATE WHETHER MISS CRANE ON
12 ADMISSION SUFFERED ANY LIFE-THREATENING DISEASE PROCESSES OR
13 ILLNESS?
14 A. THE MAIN DIAGNOSIS WAS DEMENTIA, FAR-ADVANCED DEMENTIA OF
15 THE ALZHEIMERS TYPE, WITH ALSO A PAST HISTORY OF CEREBRAL
16 VASCULAR INJURY INDUCED WITH STROKE. AND THE CO-MORBIDITIES
17 HERE INCLUDED HYPONATREMIA DUE TO AN OBSESSIVE COMPULSIVE
18 DRINKING DISORDER AND HISTORY OF DEPRESSION, WHICH ACTUALLY
19 CAN INDEPENDENTLY ADD TO THE MORBID -- THE MORTALITY OF THESE
20 PATIENTS AS THE LITERATURE DEMONSTRATES.
21 Q. NOW, MARY CRANE ALSO SUFFERED FROM A VAGINAL FISTULA, DO
22 YOU RECALL THAT?
23 A. YES.
24 Q. AND CAN YOU DESCRIBE FOR US PLEASE WHETHER A VAGINAL
25 FISTULA AS DOCUMENTED IN THE RECORDS WOULD HAVE CAUSED PAIN?
40
1 A. WELL, A VAGINAL FISTULA IS A -- IS BASICALLY A HOLE IN
2 THE -- IN THE TISSUES THAT SEPARATE THE RECTUM FROM THE
3 VAGINA. AND IT'S USUALLY AN ULCERATIVE TYPE OF LESION
4 WHICH -- AND IT IS INVARIABLY PAINFUL. AND ALSO CAN
5 CONTRIBUTE TO SEPTICEMIA, WHICH ACTUALLY IS INDEPENDENTLY A
6 SEPARATE CO-MORBIDITY AND COULD -- COULD BE LIFE-LIMITING IN
7 AND OF ITSELF.
8 Q. WHAT IS SEPTICEMIA?
9 A. INFECTION IN THE BLOODSTREAM. BUT YOUR QUESTION I THINK
10 IS MORE AROUND PAIN, AND YES, THAT'S CLEARLY AN INDICATION
11 FOR -- FOR TREATING A PATIENT AS -- IN ORDER TO DETERMINE
12 WHETHER THE BEHAVIORS WHICH SHE DID DEMONSTRATE IS -- AS A
13 FORM OF PSYCHOSIS OR DELIRIUM WERE ATTRIBUTABLE TO THAT.
14 Q. WERE YOU ABLE TO DETERMINE BASED UPON YOUR REVIEW OF
15 WHETHER OR NOT SHE IN FACT SUFFERED FROM SEPTICEMIA?
16 A. IN MY NOTES I DIDN'T WRITE DOWN, AND I CANNOT RECALL
17 WITHOUT THE RECORDS WHETHER OR NOT THAT WAS AN ISSUE OR NOT.
18 IT'S A CONCERN, BUT I DON'T HAVE ANY NOTES TO THAT EFFECT.
19 Q. OKAY. WHEN WAS THE LAST TIME THAT YOU ACTUALLY REVIEWED
20 THE MEDICAL RECORDS?
21 A. PRIOR TO THE LAST TIME I TESTIFIED IN COURT.
22 Q. OKAY. THE NEXT PATIENT IF WE COULD TURN TO WOULD BE
23 JUDITH LARSON PLEASE. AND MY QUESTION IS: WERE YOU ABLE TO
24 IDENTIFY ANY UNDERLYING DISEASE PROCESSES OR MALADIES WHICH
25 YOU DETERMINED WERE LIFE-THREATENING?
41
1 A. JUDITH LARSON, AGAIN, WAS ADMITTED WITH A PRIMARY
2 DIAGNOSIS OF MAJOR DEPRESSION WITH PSYCHOTIC FEATURES AND
3 DEMENTIA, WHO HAD THE CONCURRENT PROBLEMS OF BEING RECENT OR
4 POST STROKE, WHICH IF I'M REMEMBERING THIS, I DON'T HAVE THE
5 DETAILS IN THESE PARTICULAR NOTES, BUT THIS MAY HAVE BEEN ONE
6 OF THE PATIENTS, AND I HASTEN TO SAY IT MAY HAVE BEEN ONE OF
7 THE OTHERS, WHO HAD A NEAR -- A NEAR-DEATH WITH RECENT STROKE.
8 AND THAT THAT CERTAINLY INDEPENDENTLY IS A LIFE-THREATENING
9 DISORDER WITH OR WITHOUT THE DEMENTIA. BUT THOSE WERE
10 THROUGH -- SHE ALSO HAD A BOTH URINARY AND BOWEL INCONTINENCE,
11 WHICH IS A KIND OF A FAR-ADVANCED FINDING WITH DEMENTIA. AND
12 HER LOSS OF VERBAL CAPABILITY.
13 Q. ANY OTHER CO-MORBIDITIES THAT YOU CAN IDENTIFY OR DID
14 IDENTIFY WITH RESPECT TO YOUR REVIEW?
15 A. WELL, THIS IS THE PATIENT WHO ENDED UP WITH A G.I. BLEED,
16 BUT I'M NOT SURE THAT WAS IN EVIDENCE AT THE TIME SHE WAS
17 ADMITTED. BUT SHE ACTUALLY APPEARS, FROM THE NOTES THAT I
18 HAVE, WAS REPORTED TO BE ACTUALLY PROGRESSING AND IMPROVING
19 WITH BOTH HER ANTI -- WITH HER PRIMARY PSYCHIATRIC MEDICATIONS
20 AND ANALGESICS, AND THEN ENDED UP HAVING THE COMPLICATION OF A
21 G.I. BLEED, AND WENT RAPIDLY DOWNHILL FROM THERE IN TERMS OF
22 BECOMING MORIBUND.
23 Q. THE NEXT PATIENT WOULD BE LYDIA SMITH.
24 A. I HAVE THOSE NOTES IN FRONT OF ME.
25 Q. YES, COULD YOU IDENTIFY WHAT YOU DETERMINED WERE
42
1 LIFE-THREATENING CONDITIONS RELATING TO MISS SMITH?
2 A. ON MISS -- ON MS. SMITH'S NOTES, I DID SPECIFY THAT SHE'D
3 RECENTLY EXPERIENCED A LIFE-THREATENING STROKE, WHICH AGAIN,
4 INDEPENDENTLY HAS LIFE-LIMITING IMPLICATIONS, COUPLED WITH HER
5 ADVANCED DEMENTIA. AND PROBABLY EVEN, YOU KNOW, MORE OR LESS
6 IMPORTANT, BUT OF EQUAL IMPORTANCE, BUT INDEPENDENTLY FROM
7 THAT, SHE HAD A 30-POUND WEIGHT LOSS OVER THE COURSE OF A YEAR
8 WHICH THAT COUPLED WITH HER INABILITY TO DO HER OWN ACTIVITIES
9 OF DAILY LIVING, BATHING, AND HER OWN SUPPORTIVE CARES,
10 HYGIENE CARES, AND LOSS OF SPEECH, RENDERS A VERY, VERY SHORT
11 PROGNOSIS FOR A PATIENT UNDER THESE CIRCUMSTANCES.
12 Q. IS THERE LITERATURE RELATING TO THE SIGNIFICANCE OF A
13 SIGNIFICANT WEIGHT LOSS IN, FOR EXAMPLE, A PATIENT LIKE LYDIA
14 SMITH?
15 A. YES, THERE IS.
16 Q. AND WHAT SIGNIFICANCE DOES IT HAVE AND WHAT DOES THE
17 LITERATURE SUPPORT IN TERMS OF THE SIGNIFICANCE OF THE WEIGHT
18 LOSS?
19 A. THE LITERATURE SUPPORTS THAT'S IT'S ONE OF THE MORE
20 POWERFUL CONTRIBUTORS OF LIMITED-LIFE EXPECTANCY FOR PATIENTS
21 WITH EITHER POST STROKE DEMENTIA OR DEMENTIA OF THE ALZHEIMERS
22 TYPE. THERE'S THE THIRD CATEGORY CALLED ADULT FAILURE TO
23 THRIVE WHERE WE DON'T NECESSARILY EVEN SEE ANY OF THE
24 COGNITIVE IMPAIRMENTS WHERE THAT APPRECIABLE AMOUNT OF WEIGHT
25 LOSS AND REDUCTION IN FUNCTION IS ASSOCIATED WITH VERY
43
1 SHORT-TERM MORTALITY. AND I'VE GOT THE DATA HERE TO SHOW YOU
2 IF YOU'RE INTERESTED.
3 Q. WHAT DATA IS THAT, SIR?
4 A. WELL, IT'S DATA FROM ONE OF THE REPORTS THAT I HAD
5 REFERENCED EARLIER PLUS DATA FROM THE PALMENO GOVERNMENT
6 BENEFITS ADMINISTRATION, WHICH IS THE HEALTH CARE FINANCING
7 AGENCY INTERMEDIARY FOR MOST OF THE HOSPICE AND HOME CARE
8 PAYMENT IN THE COUNTRY.
9 Q. AND JUST IN A GENERAL WAY, WHAT DOES THAT DATA
10 SUBSTANTIATE?
11 A. IT SUBSTANTIATES THAT THE VAST MAJORITY OF PATIENTS
12 WHO -- WHO THEY TRACK WITH THESE CONDITIONS DO DIE WITHIN A
13 TIME FRAME OF MONTHS RATHER THAN BEYOND -- BEYOND MONTHS TO
14 YEARS.
15 Q. WAS LYDIA SMITH ONE OF THE PATIENTS THAT YOU WERE ABLE TO
16 DETERMINE WHAT HER HEART RATE WAS ON ADMISSION?
17 A. YOU KNOW, I BELIEVE I -- I HAD -- WHEN I REVIEWED
18 DR. HARE'S COURT TESTIMONY, I WENT BACK AND COMPARED HIS
19 STATEMENTS AND HIS FINDINGS WITH THE MEDICAL RECORDS
20 THEMSELVES AND ANNOTATED THOSE NOTES, AND I DIDN'T ADD THOSE
21 TO MY REVIEW NOTES. SO I DON'T HAVE THOSE WITH ME, BUT THEY
22 WOULD BE ON THE -- THE TESTIMONY OF DR. HARE.
23 Q. AND WAS THERE A SIGNIFICANCE IN TERMS OF DOCUMENTING THE
24 HEART RATE ON ADMISSION?
25 A. IT'S ONE OF THE VITAL SIGNS. IT'S -- IT'S QUITE
44
1 IMPORTANT IN TERMS OF LOOKING AT UNDERLYING PHYSICAL STATUS.
2 Q. OKAY. LET ME APPROACH, DOCTOR. I'M JUST GONNA HAND YOU
3 A DOCUMENT WHICH -- ARE THOSE THE ANNOTATIONS THAT YOU MADE
4 RELEVANT TO DR. HARE'S COURT TESTIMONY?
5 A. YES, THIS IS MY --
6 Q. WOULD THAT ASSIST YOU FOR PURPOSES OF YOUR TESTIMONY HERE
7 CONCERNING SOME OF THE OBSERVATIONS AND EVALUATIONS YOU MADE?
8 A. YES.
9 Q. THE FINAL PATIENT IS ELLEN ANDERSON. DO YOU HAVE THOSE
10 NOTES IN FRONT OF YOU?
11 A. YES, I DO.
12 Q. AND WERE YOU ABLE TO IDENTIFY ANY LIFE-THREATENING
13 DISEASE PROCESSES RELEVANT TO ELLEN ANDERSON?
14 A. HER PRIMARY ADMITTING DIAGNOSIS WAS DEMENTIA WITH AN
15 ANXIETY DISORDER AND MAJOR DEPRESSION WITH PSYCHOTIC FEATURES.
16 HER CO-MORBIDITIES INCLUDED CORONARY ARTERY DISEASE AND SEVERE
17 OSTEOPOROSIS.
18 Q. NOW, WHEN YOU -- WHEN YOU REVIEWED DR. HARE'S TESTIMONY
19 AND YOU WENT TO THE RECORDS TO DOCUMENT SOME OF THE FINDINGS
20 AND OTHER VITAL SIGNS WHICH WERE REFLECTED, WERE YOU ABLE TO
21 DETERMINE IN SOME INSTANCES WHERE THE COURT TESTIMONY DID NOT
22 SQUARE WITH THE RECORDS AS YOU REVIEWED THEM?
23 A. THAT'S CORRECT.
24 Q. IS THERE A PARTICULAR EXAMPLE THAT COMES TO MIND THAT
25 MIGHT BE HELPFUL TO ILLUSTRATE THAT POINT?
45
1 A. I WOULD HAVE TO -- IT'S BEEN AWHILE SINCE I'VE -- A FEW
2 WEEKS SINCE I'VE HAD THESE DOCUMENTS, SO I WOULD HAVE TO DIG
3 THROUGH THEM A BIT.
4 THE COURT: LET ME JUST ASK, HOW LONG DO YOU PLAN --
5 DO YOU THINK YOU'LL BE?
6 MR. STIRBA: I MAY BE CERTAINLY ANOTHER GOOD 45
7 MINUTES, JUDGE.
8 THE COURT: OKAY. WHY DON'T WE TAKE A TEN-MINUTE
9 BREAK NOW, THEN COME BACK AT TEN TO FOUR.
10 (WHEREUPON THE COURT TOOK A RECESS.)
11 THE COURT: OKAY. IF YOU'D LIKE TO PROCEED.
12 MR. STIRBA: THANK YOU, YOUR HONOR.
13 Q. DR. FINE, I WAS ASKING YOU BEFORE WE BROKE ABOUT DISEASE
14 PROCESSES THAT WERE LIFE THREATENING CONCERNING ELLEN
15 ANDERSON. AND YOU TESTIFIED TO SOME. DO YOU HAVE ANY OTHER
16 OBSERVATIONS BASED UPON A REVIEW OF YOUR NOTES DURING THE
17 BREAK?
18 A. YES, SIR. IN ADDITION TO WHAT I HAVE MENTIONED, SHE HAD
19 SUFFERED A HIP FRACTURE SIX MONTHS PRIOR TO ADMISSION, WHICH
20 IN THIS PARTICULAR AGE GROUP IS OFTENTIMES A LIFE-THREATENING
21 PROCESS REGARDLESS OF SURGICAL FIXATION. AND THIS WAS IN
22 EVIDENCE IN THAT SHE HAD LOST 20 POUNDS IN THE PRECEDING SIX
23 MONTHS SINCE ADMISSION, WHICH IS AGAIN, AN INDEPENDENT
24 VARIABLE IN PREDICTING MORTALITY. SHE HAD -- WAS EXPERIENCING
25 URINARY TRACT INFECTIONS, WHICH AGAIN, IS ANOTHER INDEPENDENT
46
1 VARIABLE IN PREDICTING MORTALITY IN THIS AGE GROUP. AND HER
2 ADMITTING HEART RATE WAS -- SHE WAS TACHYCARDIC WITH A RATE OF
3 102.
4 Q. WHAT IS THE SIGNIFICANCE OF THAT RATE THAT SHE WAS
5 SHOWING ON ADMISSION?
6 A. THERE ARE A LOT OF DIFFERENTIAL DIAGNOSES OF WHY SHE MAY
7 HAVE BEEN TACHYCARDIC, AND THAT CAN BE ANYTHING FROM STRESS TO
8 FEAR TO PAIN TO EXPERIENCING A CORONARY INSUFFICIENCY AND --
9 AND INADEQUATE BLOOD FLOW OR OXYGENATION OF HER HEART.
10 THERE'S A LONG DIFFERENTIAL DIAGNOSIS. BUT ALL THEM SPELL THE
11 SAME THING, WHICH IS TROUBLE. IN THIS AGE CATEGORY, ANYONE
12 WHO HAS A SUSTAINED HEART RATE AT THAT LEVEL IS AT GREAT RISK
13 OF SUFFERING A MYOCARDIAL INFARCTION OR A HEART ATTACK. WE --
14 IT SURPRISED ME THAT DR. HARE DID NOT ATTEND TO THAT BECAUSE
15 IF A PATIENT WERE UNDERGOING A PREOPERATIVE EVALUATION, IT'S
16 ONE OF THE CARDINAL TENETS THAT WE ADDRESS. AND QUITE
17 FRANKLY, I'VE -- I KNOW THIS IS HEARSAY, BUT I'VE SEEN
18 DR. HARE RAKE RESIDENTS OVER THE COALS ON MANY OCCASIONS FOR
19 NOT ATTENDING TO SUCH A FINDING BECAUSE IT IS SUCH AN
20 IMPORTANT PROGNOSTIC INDICATOR OF MORBIDITY AND MORTALITY.
21 Q. WHEN YOU REVIEWED THE RECORDS, DID YOU REVIEW THEM
22 ATTEMPTING TO DETERMINE WHETHER OR NOT THESE PATIENTS WERE IN
23 FACT IN PAIN OR MANIFESTING SIGNS OR SYMPTOMS OF PAIN?
24 A. THE MEDICAL RECORDS FROM DAVIS?
25 Q. YES.
47
1 A. YES.
2 Q. AND WHY WAS THAT IMPORTANT FOR YOU TO AT LEAST TRY TO
3 EVALUATE AND DETERMINE THAT?
4 A. WELL, WHEN I WAS ADDRESSED BY THE PROSECUTION AT THAT
5 POINT, THE NOTE THAT I HAD MADE WAS THAT LOOK FOR INDICATIONS
6 OF -- FOR THE TREATMENTS THAT WERE PRESCRIBED. AND THE --
7 THERE'S SEVERAL INDICATIONS, AS WE WENT OVER BEFORE, FOR THE
8 USE OF MORPHINE OR OTHER ANALGESICS. BUT THE PRIMARY
9 INDICATION IS PAIN. AND SO I WAS LOOKING FOR EVIDENCE OF PAIN
10 SYMPTOMATOLOGY OR DIAGNOSES TO EXPLAIN THESE PATIENTS AS WELL
11 AS THEIR BEHAVIOR. AND SO, YOU KNOW, IT WAS PART OF THE -- I
12 THOUGHT WAS SORT OF MY DUE DILIGENCE IN REVIEWING THESE
13 RECORDS.
14 Q. DOES MORPHINE HAVE A ROLE TO PLAY IN PROVIDING
15 END-OF-LIFE CARE?
16 A. YES.
17 Q. AND WHAT ROLE DOES MORPHINE HAVE TO PLAY?
18 A. WELL, HISTORICALLY, I MEAN IT'S -- IT'S PROBABLY THE MOST
19 COMMON -- COMMONLY USED MEDICATION TO TREAT SYMPTOMS AS FAR
20 RANGING AS PAIN TO SHORTNESS OF BREATH TO GENERAL DISTRESS AND
21 AGITATION THAT OFTENTIMES ACCOMPANY -- ACCOMPANY THE DYING
22 PROCESS.
23 Q. IS IT -- WHEN YOU SAY THE RELIEF OF SIGNS OF DISTRESS, IS
24 IT USED FOR ANY SEDATIVE PURPOSES --
25 A. YES.
48
1 Q. -- IN END-OF-LIFE CARE?
2 A. YES.
3 Q. AND BASED UPON YOUR REVIEW OF THE RECORDS, WERE YOU ABLE
4 TO DETERMINE WHETHER OR NOT THERE WERE MANIFESTATIONS OF PAIN
5 IN THESE PATIENTS AS REFLECTED IN THOSE RECORDS?
6 A. YES, I BELIEVE THERE WAS. THERE WERE NOTES ON -- BOTH IN
7 THE PHYSICIAN PROGRESS NOTES SECTION AND NURSES' NOTES THAT
8 SORT OF CORRESPONDED TO THE TIMING AND THE -- AND THE
9 ADMINISTRATION OF BOTH ORDERS FOR ANALGESICS AND THEIR DOSES.
10 Q. AND DID YOU ALSO LOOK AT THE RECORDS FOR PURPOSES OF
11 FORMULATING AN OPINION RELATIVE TO THE APPROPRIATENESS OR THE
12 PROPRIETY OF THE USE OF MORPHINE?
13 A. YES.
14 Q. DO YOU HAVE AN OPINION BASED UPON YOUR REVIEW AS TO THE
15 APPROPRIATENESS OR THE PROPRIETY OF THE USE OF MORPHINE WITH
16 RESPECT TO THESE PATIENTS?
17 A. IT'S MY OPINION THAT THE ADMINISTRATION OF MORPHINE AS
18 ORDERED FOR THESE PATIENTS CERTAINLY FIT WITHIN ACCEPTABLE
19 INDICATIONS FOR THE SYMPTOMS THESE PATIENTS WERE EXHIBITING.
20 Q. AND, FOR EXAMPLE, CAN YOU DESCRIBE THE SYMPTOMS YOU'RE
21 TALKING ABOUT?
22 A. WELL, WE TALKED ABOUT THE PATIENT WITH THE FISTULA AND
23 THE PAIN THAT ACCOMPANIES IT. AND THE AFFECTIVE AND
24 BEHAVIORAL EVIDENCING OF DISTRESS WITH CRYING OUT, WITH
25 LASHING OUT, AND THAT SORT OF THING. AND GRIMACING AND OTHER
49
1 BEHAVIORS. PATIENTS WE DESCRIBED WITH OSTEOARTHRITIS HAD
2 EVIDENCE OF COMPRESSION FRACTURES WHICH ARE NOTORIOUSLY
3 PAINFUL IN AND -- AND AGAIN, THE -- WE DESCRIBED BEFORE
4 PATIENTS WHO CANNOT SAY SPECIFICALLY, I HURT AND I HURT THIS
5 MUCH AND THIS IS HOW -- HOW I HURT AND WHERE THE PAIN IS AND
6 SO FORTH, ONLY DEMONSTRATED BEHAVIORALLY. AND SO I CAN'T
7 REMEMBER WHETHER IT'S DEDUCTIVE OR INDUCTIVE LOGIC THAT ONE
8 HAS TO USE, I CAN'T REMEMBER THE CATEGORIES, BUT -- BUT IT'S
9 ONE OF THOSE TWO TYPES OF LOGIC THAT LEADS ONE TO HAVE TO
10 TREAT THE PATIENT AS IF THEY ARE IN PAIN AND DETERMINE WHETHER
11 THOSE -- THAT'S -- THAT RELIEVES THE SYMPTOMS.
12 Q. WHAT BEHAVIOR DID YOU SEE DOCUMENTED IN THE RECORDS
13 SUPPORTIVE OF THE ASSESSMENT OF PAIN?
14 A. IN ALL OF THEM OR ONE SPECIFIC --
15 Q. WELL, IN A GENERAL WAY, WHY DON'T DO YOU ALL OF THEM?
16 A. GENERALLY, AND I THINK THIS PERTAINS TO MOST OF THEM,
17 THERE WAS AGITATED BEHAVIOR, THERE WAS CRYING OUT, THERE WAS
18 LASHING OUT, THERE WAS STRIKING OUT. SOME DEMONSTRATED
19 KICKING, BITING, SCRATCHING. AND I COULD GO THROUGH -- I
20 DIDN'T DETAIL THOSE SPECIFICALLY IN MY NOTES. I DID DETAIL
21 THEM AS I WENT THROUGH AND ANNOTATED AND CROSS-REFERENCED THE
22 MEDICAL RECORDS WITH DR. HARE'S TESTIMONY.
23 Q. THE EXAMPLES YOU HAVE JUST GIVEN, DO YOU FIND SUPPORT IN
24 THE LITERATURE FOR THE DEDUCTION THAT THOSE BEHAVIORAL
25 MANIFESTATIONS ARE CONSISTENT WITH PAIN?
50
1 A. YES, I DO.
2 Q. AND ONCE AGAIN, WOULD THOSE BE SOME OF THE AUTHORITIES
3 THAT YOU BROUGHT WITH YOU HERE THIS AFTERNOON?
4 A. IN ONE FORM OR OTHER. THERE'S SOME ADDITIONAL MATERIALS
5 THAT I BROUGHT TO SUPPORT THE WAY THAT -- THAT MORE
6 CONVENTIONALLY NOW WE'RE ASSESSING THESE TYPES OF BEHAVIORS
7 SPECIFICALLY FOR PAIN AND THEY'RE VALIDATED SCALES, SO CALLED
8 FLACK SCALE, FOR SUCH PATIENTS, WHERE YOU CAN ACTUALLY
9 ATTRIBUTE AN INTENSITY LEVEL SIMILAR TO A VERBAL PAIN SCORE.
10 AND THERE'S A COMPREHENSIVE SORT OF SUMMARY OF THIS, AND I
11 THINK ACTUALLY IT'S IN A BINDER I GAVE YOU WHICH I DON'T --
12 BECAUSE I DON'T -- I NO LONGER HAVE IT. I THINK AT OUR LAST
13 MEETING BEFORE THE LAST TIME OF THE TRIAL --
14 Q. WAS THAT A FOLDER, DOCTOR, THAT YOU PARTICIPATED IN IN
15 TERMS OF PROVIDING SOME SEMINAR WORK?
16 A. YES. AND THIS IS -- THIS IS AT LEAST TO MY FINDING THE
17 MOST SORT OF COMPREHENSIVE SUMMARY OF ALL THESE -- ALL THESE
18 MATERIALS TO DATE.
19 Q. THIS ONE?
20 A. YES, THAT'S CORRECT.
21 MR. STIRBA: MAY I APPROACH, YOUR HONOR?
22 THE COURT: YES.
23BY MR. STIRBA:
24 Q. I'M GONNA HAND YOU THIS BOOKLET. ASK YOU TO IDENTIFY IT,
25 FIRST OF ALL.
51
1 A. IT'S ENTITLED PAIN AND BEHAVIORAL DISTURBANCES IN THE
2 COGNITIVELY IMPAIRED OLDER ADULT, ASSESSMENT AND TREATMENT
3 ISSUES.
4 Q. AND WHAT RELATIONSHIP DO YOU HAVE IF ANY TO THAT BOOKLET?
5 A. I WAS ONE OF THE INDIVIDUALS I -- INVOLVED IN DEVELOPING
6 THIS SYMPOSIUM AND THIS -- THIS SYLLABUS FROM THIS SYMPOSIUM
7 WHICH WAS PRESENTED AT BOTH THE AMERICAN GERIATRIC SOCIETY
8 ANNUAL SCIENTIFIC MEETING AND THE AMERICAN MEDICAL DIRECTORS
9 ANNUAL SCIENTIFIC MEETING OF THIS LAST YEAR.
10 Q. AND IS THERE IN THAT BOOKLET THAT I'VE HANDED YOU, IS
11 THERE A SUPPORT FOR WHAT YOU HAVE BEEN TESTIFYING CONCERNING
12 THE BEHAVIORAL MANIFESTATIONS AND THEIR NEXUS TO PAIN?
13 A. YES. I BELIEVE THAT MOST OF WHAT WE'VE BEEN ADDRESSING
14 IS SUMMARIZED WITHIN THIS -- THESE MATERIALS.
15 Q. AND THE SYMPOSIUM WAS GIVEN FOR WHOM?
16 A. THIS WAS GIVEN FOR GERIATRICIANS, FOR MEDICAL DIRECTORS
17 OF NURSING HOMES AND OTHER ASSISTED LIVING TYPES OF FACILITIES
18 AS WELL AS OTHER TYPES OF INSTITUTIONAL CARE FOR ELDERLY
19 PATIENTS SPECIFICALLY. FOR THOSE WHO CARE FOR COGNITIVELY
20 IMPAIRED OLDER PATIENTS, SUCH AS GEROPSYCHIATRISTS, FAMILY
21 PHYSICIANS, GENERAL INTERNISTS, A WIDE RANGE OF PHYSICIANS WHO
22 INVOLVE THEMSELVES IN THE CARE OF PATIENTS, ESPECIALLY OF THE
23 ELDERLY.
24 Q. NOW, YOU'VE TESTIFIED ABOUT YOUR REVIEW OF THE COURT
25 TESTIMONY OF DR. HARE. WHEN YOU REVIEWED THAT TESTIMONY, DID
52
1 YOU MAKE SOME KIND OF ANNOTATIONS OR NOTES --
2 A. YES, I DID.
3 Q. -- RELATIVE TO YOUR OPINIONS?
4 A. YES.
5 Q. AND WERE THERE TIMES WHEN YOUR OPINION DID NOT SQUARE
6 WITH THE OPINION AS ADVANCED BY DR. HARE?
7 A. WELL, AS YOU'VE GIVEN ME THIS BACK TO REVIEW, I -- I
8 DOG-EARED ALL THE PAGES WHERE I FOUND THAT THERE WERE
9 SIGNIFICANT ISSUES THAT I EITHER FOUND WERE SORT OF
10 MISREPRESENTATIVE OF THIS PARTICULAR PATIENT GROUP IN THE
11 CONTEXT OR DID NOT SQUARE WITH THE MEDICAL RECORDS OR THE
12 FACTS AS THE MEDICAL LITERATURE WOULD SUPPORT. AND I WOULD
13 SAY THAT TWO-THIRDS TO THREE-QUARTERS OF THESE PAGES, I HAVE
14 SOME COMMENTS AND SIGNIFICANT DIFFERENCES OF OPINION BASED
15 UPON THE EVIDENCE AT HAND TO SUPPORT THOSE DIFFERENCES OF
16 OPINION.
17 Q. AND HOW MANY PAGES JUST -- WHAT'S THE PAGINATION NUMBER
18 AT THE END OF THE TRANSCRIPT THAT YOU HAVE IN FRONT OF YOU FOR
19 WHICH YOU HAVE TWO-THIRDS OR THREE-QUARTERS TABBED?
20 A. WHAT I HAVE CONCLUDES WITH PAGE 87.
21 Q. NOW, WE'RE NOT GONNA GO OVER ALL THOSE, BUT I WANNA ASK
22 YOU SPECIFICALLY ABOUT SOME, IF I COULD. FIRST OF ALL, THERE
23 WAS A QUESTION ASKED ON PAGE 83, LINE 21, RELATING TO
24 MR. ALLDREDGE AND WHETHER -- THE QUESTION WAS: WERE THERE ANY
25 INDICATIONS --
53
1 MR. WILSON: YOUR HONOR, I'M GOING TO INTERPOSE AN
2 OBJECTION. I DON'T KNOW WHETHER THIS IS A CORRECT TRANSCRIPT
3 OR NOT. I -- I HAVEN'T SEEN ANY FOUNDATION AS TO THESE
4 PARTICULAR DOCUMENTS. THEY HAVEN'T BEEN ADMITTED INTO
5 EVIDENCE BEFORE THE COURT.
6 THE COURT: DO YOU WANNA GIVE ME A FOUNDATION?
7 MR. STIRBA: WELL --
8 THE COURT: YOUR QUESTION IS THE FOUNDATION OF
9 WHETHER THIS WAS ACTUALLY HIS TESTIMONY?
10 MR. WILSON: YES.
11 MR. STIRBA: WELL, IT IS A TRANSCRIPT THAT WAS
12 PREPARED FROM A DISK PROVIDED BY THE COURT, YOUR HONOR. AND I
13 DIDN'T KNOW REALLY THERE WAS ANY QUESTION AS TO ITS
14 AUTHENTICITY OR ACCURACY.
15 MR. WILSON: WELL, I HAVEN'T HEARD ANY TESTIMONY FROM
16 ANY COURT REPORTER OR FROM THE STANDPOINT OF CERTIFYING THAT
17 THIS IS AN ACCURATE TRANSCRIPTION OF HIS TESTIMONY. I THINK
18 IF WE'RE GONNA HAVE TESTIMONY RELATING TO DR. HARE'S
19 STATEMENTS IN THESE PROCEEDINGS, WE OUGHT TO AT LEAST CROSS
20 THAT THRESHOLD FIRST.
21 MR. STIRBA: I'LL DO IT VERY EASILY THIS WAY, YOUR
22 HONOR: I WILL POSE IT IN TERMS OF ASSUMING IN A HYPOTHETICAL
23 TO THE EXPERT WITNESS. THAT SHOULD CURE THE PROBLEM.
24 THE COURT: OKAY. GO AHEAD.
25BY MR. STIRBA:
54
1 Q. ASSUMING, DR. FINE, THAT DR. HARE WAS ASKED WHETHER THERE
2 WERE ANY INDICATIONS IN THE RECORD OF ANY SIGNS OR SYMPTOMS OR
3 COMPLAINTS OF PAIN CONCERNING MR. ALLDREDGE DURING THE TIME HE
4 WAS IN THE HOSPITAL, AND HE ANSWERED NO. DO YOU AGREE WITH
5 THAT OPINION?
6 A. I DON'T -- I DON'T BELIEVE THAT THAT SQUARES WITH WHAT I
7 FOUND IN THE MEDICAL RECORDS FOR THE DATES UNDER QUESTION.
8 Q. AND TELL US PLEASE HOW IT DOES NOT SQUARE WITH YOUR
9 OPINION.
10 A. ON JANUARY 11TH THERE'S A NURSE'S NOTE THAT STATES,
11 QUOTE, HITTING, GRABBING, SPITTING. SPITS OUT ALL ORAL MEDS.
12 ON THE 12TH, HITTING STAFF. TOO AGITATED EVEN AFTER
13 MEDICATIONS WERE GIVEN FOR SEDATION FOR MAGNETIC RESIDENCE
14 IMAGING STUDY. ON JANUARY 13TH, DOCTOR'S NOTE, QUOTE, CRYING,
15 NEEDS RESTRAINT, UNQUOTE. APPEARS TO BE QUITE UNCOMFORTABLE.
16 SMEARING FECES. NOT RESPONDING TO THESE LARGE DOSES OF
17 MEDICATIONS. CONTINUES TO BE PINCHING AND HITTING.
18 AND AGAIN, THESE -- THESE ARE SUGGESTIVE OF -- THEY'RE
19 CERTAINLY BEHAVIORS OF DISTRESS FOR WHICH ONE OF THE PRIMARY
20 DIFFERENTIAL DIAGNOSES IS PAIN.
21 Q. WHAT DO YOU MEAN BY DIFFERENTIAL DIAGNOSIS?
22 A. AN ELABORATION OF THE DIFFERENT CAUSES FOR THESE
23 BEHAVIORS. AND IN VIEW OF THE FACT THAT THESE BEHAVIORS
24 CONTINUED EVEN WITH SIGNIFICANT, AND AS ATTRIBUTED, HIGH DOSES
25 OF SEDATING AND ANTIPSYCHOTIC MEDICATIONS WHICH ARE
55
1 NOTORIOUSLY INEFFECTIVE AS ANALGESICS FOR REDUCING PAIN, THEN
2 THAT HAS TO BE CONSIDERED TO BE AT THE TOP OF THE LIST OF WHY
3 THE PAIN MAY BE -- MAY BE CAUSED. AND AGAIN, THERE IS
4 SUPPORTING LITERATURE IN THE MEDICAL -- AND THERE'S SUPPORTING
5 EVIDENCE IN THE MEDICAL LITERATURE FOR THAT STATEMENT.
6 Q. ON PAGE 82, CONCERNING MR. ALLDREDGE, ASSUME DR. HARE WAS
7 ASKED WHETHER THERE WAS ANY INDICATION IN THE MEDICAL RECORD
8 AS TO WHETHER MR. ALLDREDGE WAS SUFFERING FROM ANY KIND OF
9 TERMINAL CONDITION, AND HE TESTIFIED HE DID NOT SEEM TO HAVE
10 ANY ACUTE MEDICAL CONDITIONS THAT WOULD. HE SEEMED TO BE
11 QUITE STABLE MEDICALLY.
12 DO YOU AGREE WITH THAT OPINION ADVANCED BY DR. HARE?
13 A. WELL, I BELIEVE DR. HARE'S WRONG IN THAT STATEMENT IN
14 THAT -- IN THAT IT IS NOT ONLY NOT SUPPORTED BY THE MEDICAL
15 RECORDS; IT IS CONTRADICTED BY THE MEDICAL RECORDS WHICH
16 ELABORATE HIS CONDITION OF END-STAGE DEMENTIA WITH
17 CO-MORBIDITIES AS -- AS I PREVIOUSLY TESTIFIED.
18 Q. ON PAGE 81, ASSUME THAT DR. HARE WAS ASKED AT THE TRIAL,
19 WAS THERE ANY CONTRIBUTING FACTOR TO HER CAUSE OF DEATH OTHER
20 THAN MORPHINE.
21 AND THIS IS RELATING TO I BELIEVE LYDIA SMITH.
22 AND HE ANSWERED, I BELIEVE THE CONTINUED ESCALATING DOSES
23 OF SEDATING MEDICATION THROUGH HER HOSPITAL COURSE CAUSED HER
24 TO BE DEHYDRATED, CAUSED A DECREASE IN NUTRITIONAL STATUS,
25 CAUSED CHANGES IN HER OTHER BODILY FUNCTIONS, TO WHERE THE
56
1 MORPHINE WAS ABLE TO CAUSE DEATH IN THIS PATIENT.
2 DO YOU AGREE WITH THAT STATEMENT?
3 A. NO, I DON'T.
4 Q. AND TELL US WHY YOU DO NOT.
5 A. WELL, I BELIEVE IT'S ACTUALLY POORLY INFORMED AND
6 MISREP -- MISREPRESENTATIVE OPINION OF HER UNDERLYING DISEASE
7 PROCESS. IT WAS HER UNDERLYING DISEASE THAT LED TO THE
8 INDICATIONS FOR THESE PSYCHOTROPIC DRUGS IN THE FIRST PLACE.
9 Q. AND WHAT SIGNIFICANCE DOES THAT HAVE IN TERMS OF THE
10 STATEMENT I'M ASKING YOU TO ASSUME DR. HARE MADE?
11 A. WELL, HE'S SORT OF SAYING THAT THE CART CAME BEFORE THE
12 HORSE AND I'M SAYING THE HORSE CAME BEFORE THE CART. AND THE
13 IMPLICATION IS THAT THESE MEDICATIONS AND THE CARE -- THE
14 PRESCRIPTION FOR THESE INTERVENTIONS WAS INAPPROPRIATE. AND
15 WHAT I'M SAYING -- SUGGESTING IS THAT -- OR STATING IS THAT
16 THIS IS EXACTLY THE CONDITION FOR WHICH SHE WAS ADMITTED TO
17 HOSPITAL AND THE APPROPRIATE PRIMARY COURSE OF TREATMENT TO
18 TRY AND BRING THESE SYMPTOMS UNDER CONTROL.
19 Q. PAGE 77, ASSUME THAT DR. HARE STATED THAT THE
20 MEDICATIONS -- RELATING ONCE AGAIN TO LYDIA SMITH -- WAS
21 INCREASED ON OR AROUND DECEMBER 30TH. THE NURSING NOTES WOULD
22 INCREASE -- WOULD INDICATE AN INCREASE IN SLEEPINESS AND
23 DEPRESSANT EFFECTS OF THESE MEDICATIONS.
24 BASED ON YOUR REVIEW OF THE RECORDS, DO YOU AGREE WITH
25 THAT ANALYSIS?
57
1 A. NO, I DO NOT.
2 Q. WHY NOT?
3 A. THE RECORD DOCUMENTS ON THE TWO DAYS PRECEDING THAT, 28TH
4 AND 29TH, THAT HER BEHAVIOR WAS QUITE VARIABLE, WITH
5 AGGRESSIVE AND COMBATIVE BEHAVIORS. THESE ARE QUOTES FROM THE
6 CHART. IRRITABLE AND HITTING OUT, IN SPITE OF THE MEDICATIONS
7 THAT SHE WAS GETTING TO TRY AND CONTROL THOSE SYMPTOMS. AND
8 THAT THE DAY FOLLOWING THAT, ON THE FIRST AND SECOND DAYS
9 FOLLOWING THAT, 1ST AND 2ND OF JANUARY, IT STATED THAT SHE WAS
10 QUITE RECALCITRANT AND GOT VERY AGGRESSIVE AND PROCEEDED TO BE
11 INTERMITTENTLY PSYCHOTIC. AND THEN A LABORATORY PERSON MADE
12 AN ENTRY THAT THE PATIENT CONSISTENTLY TRIED TO REMOVE
13 CLOTHES. WAS VERY AGGRESSIVE AND AGITATED WITH STAFF.
14 AND AGAIN, TRYING TO REMOVE CLOTHING IN THIS FASHION CAN
15 BE SYMBOLIC OF MANY THINGS, BUT ONE OF THE THINGS THAT NEEDS
16 TO COME TO MIND IF ONE IS FAMILIAR WITH THESE TYPES OF
17 PATIENTS IN THIS TYPE OF CIRCUMSTANCE IS THAT REMOVING OF
18 CLOTHING IS OFTEN INDICATIVE OF -- OF A PAIN CONDITION AND IS
19 NOT UNCOMMON IN PATIENTS WHO HAVE HAD STROKE AND HAVE WHAT'S
20 CALLED A CENTRAL THALAMIC PAIN DISORDER. THAT'S A CENTRAL
21 NERVOUS SYSTEM PAIN DISORDER, THAT VIRTUALLY ANYTHING TOUCHING
22 THE SKIN IS EXPERIENCE -- EXQUISITELY PAINFUL, ALMOST LIKE A
23 BURN. AND SO PATIENTS TRY AND REMOVE THEIR CLOTHING,
24 ANYTHING -- AND PUSH OUT OF THE WAY ANYTHING THAT TOUCHES
25 THEIR SKIN. IT'S VIEWED TO BE AN EXCRUCIATING PAIN DISORDER.
58
1 AND THIS IS IN PATIENTS WHO HAVE CAN VERBALIZE. AND IN
2 PATIENTS WHO CAN'T, ALL THEY THEN CAN DO IS BEHAVE.
3 Q. ASSUMING ON THAT SAME PAGE THAT DR. HARE SAID, RELATING
4 TO LYDIA SMITH, AS THE MEDICATION DOSES CONTINUE TO GO UP, AND
5 AS THEY BEGAN TO DO AT ABOUT THAT TIME, THERE BEGAN TO BE SOME
6 PRETTY GOOD DOSE INCREASES. THEN, FOR INSTANCE, ON JANUARY
7 2ND, SHE'S NOT EATING, SHE'S VERY DROWSY, STILL HAVING SOME
8 AGGRESSIVE BEHAVIOR, BUT AGAIN DEFINITELY SHOWING SIGNS IN THE
9 OTHER DIRECTION. BY THIS TIME HER DOSES OF MEDICATION HAVE
10 BEEN INCREASED QUITE A BIT.
11 DO YOU AGREE WITH THAT STATEMENT?
12 A. I'M JUST NOT SURE, AGAIN, FROM REVIEWING THE RECORDS HOW
13 CAN -- HE CAME TO THOSE SUMMARY CONCLUSIONS WHEN THE ENTRIES
14 DOCUMENT THAT -- THAT HER AGGRESSIVE AND AGITATED BEHAVIOR
15 SEEMED TO BE THE MAIN CLINICAL PRESENTATION.
16 Q. ONCE AGAIN ON PAGE 76, HE CHARACTERIZES -- ASSUMING THAT
17 HE CHARACTERIZED AT THE TRIAL THAT SHE WAS MEDICALLY STABLE.
18 DO YOU HAVE AN OPINION WHETHER THAT IS ACCURATE?
19 A. I THINK THAT'S ACTUALLY CONSIDERABLY INACCURATE.
20 Q. AND TELL US WHY THAT IS.
21 A. HE'S CONSIDERING HER TO BE MEDICALLY STABLE IN THE FACE
22 OF SORT OF THE CRISIS CONDITIONS WHICH LED HER TO BE ADMITTED
23 TO AN ACUTE CARE FACILITY WITH CONCURRENT FINDINGS OF THIS
24 FAR-ADVANCED DEMENTIA, POST STROKE, URINARY TRACT INFECTION,
25 WEIGHT LOSS, BRONCHITIS, SKIN FRAGILITY, ATRIAL FIBRILLATION,
59
1 AND CONGESTIVE HEART FAILURE, A COMPENDIUM OF CO-MORBIDITIES
2 THAT I DON'T -- I JUST DON'T SEE HOW THE WORD STABLE COULD BE
3 PUT IN THE SAME LEXICON WITH HER, YOU KNOW, HER CURRENT
4 MEDICAL CONDITION AS IT'S DESCRIBED ON ADMISSION TO HOSPITAL.
5 Q. ON PAGE 75, ASSUMING HE WAS ASKED WHETHER ON HER
6 ADMISSION SHE WAS SUFFERING FROM ANY MEDICAL CONDITION OR
7 SIGNS OR SYMPTOMS WHICH EVIDENCE SHE WAS SUFFERING FROM ANY
8 PAIN, AND HE TESTIFIED NO, THERE WAS NO INDICATION OF THAT, DO
9 YOU AGREE WITH THAT OPINION?
10 A. I DISAGREE WITH THAT OPINION.
11 Q. AND TELL US WHY PLEASE.
12 A. AGAIN, FAMILIARITY WITH THIS PATIENT POPULATION IN THIS
13 CONTEXT, IT IS INCUMBENT UPON THE PHYSICIAN WHO'S
14 KNOWLEDGEABLE IN THIS AREA TO RULE OUT PAIN UNTIL PROVEN
15 OTHERWISE. AND SHE HAD A DOCUMENTED HISTORY OF CHRONIC
16 ABDOMINAL PAIN FOR WHICH AN ETIOLOGY OR CAUSE WAS NEVER
17 SPECIFICALLY DEFINED, BUT THAT WAS PART OF HER HISTORY AS --
18 ON PRESENTATION, COUPLED WITH HER BEHAVIOR SUGGESTING A
19 CENTRAL PAIN SYNDROME CONSISTENT WITH HER STROKE. I THINK
20 THAT DR. HARE'S CONCLUSIONS ARE INCONSISTENT AND AT ODDS
21 WITH -- WITH THOSE FINDINGS AND WITH THAT -- THOSE FACTS IN
22 EVIDENCE.
23 Q. ON PAGE 70, ASSUME THAT DR. HARE TESTIFIED THAT JUDITH
24 LARSON DIED FROM EXCESSIVE MORPHINE DOSES, BUT WAS WEAKENED BY
25 THE CUMULATIVE EFFECTS OF SEDATING MEDICATIONS UP UNTIL THE
60
1 TIME MORPHINE WAS GIVEN.
2 DO YOU AGREE WITH THAT OPINION?
3 A. NO, I DO NOT.
4 Q. AND TELL THE COURT WHY YOU DO NOT.
5 A. WELL, I WOULD CHALLENGE DR. HARE'S STATEMENT IN THAT
6 WEAKENED BY THE CUMULATIVE EFFECTS OF SEDATING MEDICATIONS,
7 I'D ASK HIM WHICH ONES, BECAUSE UP UNTIL THE TIME SHE
8 EXPERIENCED THE G.I. BLEED, SHE WAS ACTUALLY IMPROVING. AND
9 THEN SHE HAD A SEIZURE, AND THEN FOLLOWED WITH A G.I. BLEED,
10 TWO INDEPENDENT EVENTS, WHERE THE MEDICAL RECORDS ARE SORT OF
11 STARTING TO LOOK TOWARDS DISCHARGE BECAUSE SHE WAS ACTUALLY
12 GETTING BETTER, IN THE FACE OF ACTUALLY HAVING ANALGESICS ON
13 BOARD, SUPPORTING THE VIEW THAT SHE DID HAVE A PAIN CONDITION
14 THAT WAS RESPONDING TO THERAPY.
15 Q. NOW, HE'S ASKED A QUESTION ASSUMING, ON PAGE 70, ABOUT
16 MEDICATIONS AND WHETHER THE INDICATION FOR THOSE MEDICATIONS
17 WOULD HAVE SEDATING SIDE EFFECTS, AND HE ANSWERS, YES, THEY
18 ARE.
19 IN TERMS OF THOSE MEDICAL INDICATIONS, DO YOU HAVE AN
20 OPINION AS TO THE PROPRIETY OF HIS STATEMENT, YES, THEY ARE IN
21 THAT CONTEXT?
22 A. YES, I HAVE AN OPINION.
23 Q. AND WHAT IS YOUR OPINION?
24 A. I BELIEVE IT'S -- IT'S NOT A VERY APT OPINION IN THAT
25 THERE WAS A LOT MADE OF THESE PATIENTS RECEIVING SO-CALLED
61
1 CENTRAL NERVOUS OR C.N.S. DEPRESSANT DRUGS. AND IN THESE
2 PATIENTS, SHORT OF PHYSICAL RESTRAINT, WHICH IS NO LONGER
3 VIEWED IN THIS -- THIS CENTURY, NO LESS THE LATTER PART OF THE
4 LAST CENTURY, AS BEING ANYTHING NEAR APPROPRIATE MANAGEMENT OF
5 PATIENTS WITH THESE TYPES OF SYMPTOMS, AND THAT CHEMICAL
6 CONTROL, PHARMACOLOGICAL CONTROL IS THE -- IS THE STANDARD OF
7 CARE FOR CONTROL OF THESE TYPES OF SYMPTOMS, AND THE ONLY
8 DRUGS THAT HAVE EFFICACY ARE BY THEIR NATURE CENTRAL NERVOUS
9 SYSTEM DEPRESSANTS. SO, YOU KNOW, IT'S LIKE -- IT'S A -- IT'S
10 A SORT OF A GIVEN, AND I JUST DON'T SEE THAT DR. HARE COULD
11 CHALLENGE THE USE OF THESE MEDICATIONS FOR THE SPECIFIC
12 INDICATIONS FOR WHICH THEY WERE DESIGNED AND FOR WHICH THESE
13 PATIENTS PRESENTED WITH THE SYMPTOMS THAT INDICATED THEIR
14 PRESCRIPTION.
15 Q. IN YOUR OPINION, WAS THE USE OF CERTAIN SEDATING
16 MEDICATIONS CLINICALLY INDICATED IN THESE INSTANCES?
17 A. YES, I BELIEVE SO.
18 Q. NOW, I WANT YOU TO TURN TO PAGE 68. AND ASSUMING -- AND
19 THERE WAS A STATEMENT MADE AT THE TOP OF THAT PAGE, AND THIS I
20 BELIEVE RELATES TO MARY CRANE, BLOOD PRESSURE WAS FAIRLY
21 NORMAL, BUT THAT DOESN'T NECESSARILY FIT ONE WAY OR THE OTHER.
22 SO THERE DEFINITELY WERE SIGNS THAT THE PATIENT IS BEING
23 AFFECTED BY THE DRUG.
24 DO YOU HAVE AN OPINION CONCERNING THE ACCURACY AND THE
25 PROPRIETY OF THAT STATEMENT?
62
1 A. IT JUST -- IT'S A STATEMENT THAT JUST DOESN'T REALLY MAKE
2 ANY MEDICAL SENSE.
3 Q. AND WHY IS THAT?
4 A. WELL, THERE WERE DEFINITELY SIGNS THAT THE PATIENT WAS
5 BEING AFFECTED BY THE DRUG. THIS WAS THE THERAPEUTIC GOAL,
6 WHICH WAS COMFORT. I MEAN THAT'S THE REASON FOR WHICH THEY
7 WERE PRESCRIBED. IT'S LIKE LOOKING AT A PATIENT WHO'S
8 ANESTHETIZED AND SAYING, MY GOD, THEY'RE NOT MOVING. WELL, OF
9 COURSE THEY'RE NOT MOVING; THEY'RE ANESTHETIZED. AND THAT'S
10 THE -- THE PARTICULAR GOAL OF THAT THERAPY. AND THEN THE
11 STATEMENT REGARDING BLOOD PRESSURE WAS FAIRLY NORMAL, BUT THAT
12 DOESN'T NECESSARILY FIT ONE WAY OR THE OTHER. HE SEEMS TO BE
13 CONTRADICTING HIMSELF IN THAT WHEN BLOOD PRESSURE WAS LOW IN A
14 PREVIOUS PATIENT, HE DESCRIBED THIS AS A, QUOTE, A CLEAR SIGN
15 OF MORPHINE TOXICITY, BUT NOW WHEN THE BLOOD PRESSURE IS
16 NORMAL, HE'S ALSO INDICATING THIS IS A SIGN, A CLEAR-CUT SIGN
17 OF MORPHINE TOXICITY, I MEAN IN FOLLOWING THE LOGIC OF THE
18 STATEMENT. SO I JUST DON'T KNOW HOW TO MAKE SENSE OF WHAT
19 HE'S TRYING TO PUT TOGETHER THERE.
20 Q. HE GOES ON TO SAY, ASSUMING THAT HE MAKES THE STATEMENT
21 THAT EVERY THREE-HOUR DOSING OF MORPHINE, SO IT WAS GIVEN
22 AT -- WITH EXCESSIVE FREQUENCY.
23 DO YOU AGREE THAT STATEMENT?
24 A. YOU'LL HAVE TO DIRECT -- I'M TRYING TO FOLLOW WHERE YOU
25 ARE NOW.
63
1 Q. LINE 7 THROUGH 9 ON THE SAME PAGE.
2 A. OKAY, I'M SORRY, ON THE SAME PAGE. ALL RIGHTY.
3 Q. AND MY QUESTION IS, DO YOU AGREE WITH THAT STATEMENT?
4 A. NO, I DON'T.
5 Q. AND TELL THE COURT WHY YOU DO NOT.
6 A. THERE'S -- THERE'S NO PREDICATE FOR IT FROM A MEDICAL
7 STANDPOINT.
8 Q. EXPLAIN THAT.
9 A. FREQUENCY OF DOSING IS BASED UPON DURATION OF EFFECT.
10 AND THIS PATIENT WAS BEING MONITORED IN TERMS OF THE
11 RECURRENCE OF PAIN. AND IT IS NOW -- IT WAS THEN AND IS NOW
12 TAUGHT THAT YOU DON'T LET PAIN RECUR. YOU TREAT PAIN AROUND
13 THE CLOCK AND PREVENT THE UPS AND DOWNS AND SORT OF ROLLER
14 COASTER EFFECT BECAUSE THAT IS -- THAT CAUSES DISTRESS TO NOT
15 ONLY THE PATIENT, BUT THE STAFF, AND MAKES NO -- MAKES NO
16 MEDICAL SENSE TO DO THAT. AND SO THE DOSING INTERVAL NEEDS TO
17 BE ADJUSTED TO THE -- THE EFFECTIVE INTERVAL OF THE DRUG. AND
18 WITH A DRUG LIKE MORPHINE, IT CAN BE AS SHORT AS EVERY --
19 ADMINISTERED IN THIS FASHION, AS INFREQUENT AS -- AS SIX TO
20 EIGHT HOURS OR AS FREQUENT AS EVERY HOUR. THE -- THE TEXTBOOK
21 ANSWER IS, YOU KNOW, THREE TO -- DEPENDS ON WHICH TEXTBOOK YOU
22 LOOK AT, BUT IS A RANGE OF TWO TO SIX HOURS WITH A MEAN OF
23 FOUR. BUT THEN THAT MEANS THAT -- THAT IT'S A BELL-SHAPED
24 CURVE AND THAT THEY'RE GONNA BE, YOU KNOW, 30 PERCENT OF
25 PATIENTS WHO REQUIRE DRUGS LESS FREQUENTLY AND 30 PERCENT WHO
64
1 REQUIRE THEM MORE FREQUENT.
2 Q. PAGE 67, ASSUMING THAT DR. HARE SAID, RELATING TO
3 MORPHINE, IF IT'S GIVEN THREE HOURS APART, THEN THE DOSES WILL
4 BEGIN TO PILE ON TOP OF ONE ANOTHER. THE MORPHINE IS NOT
5 SUFFICIENTLY CLEARED, SO THE NEXT DOSE IS GOING TO HAVE A
6 GREATER EFFECT AND NEXT ONE EVEN GREATER AND IT WILL START TO
7 PILE UP.
8 BASED UPON YOUR KNOWLEDGE, EXPERTISE IN PAIN MANAGEMENT,
9 WHAT IS YOUR OPINION OF THAT STATEMENT?
10 A. WELL, PILE UP IS NOT A MEDICAL OR PHARMACOLOGICAL TERM
11 AND SO I'M GUESSING THAT DR. HARE IS SPEAKING SORT OF
12 COLLOQUIALLY THERE. BUT ASSUMING I THINK I KNOW WHAT HE
13 MEANS, THAT THERE IS SOMETHING CALLED DOSE ACCUMULATION OR
14 BLOOD LEVELS WOULD CONTINUALLY INCREASE. AGAIN, IT'S -- IT --
15 UNLESS FOR ANY GIVEN PATIENT YOU MEASURE BLOOD LEVELS OR YOU
16 COMPARE TOXICITY AGAINST EFFICACY, AND IF EFFICACY IS YOUR
17 GOAL, THEN TOXICITY IS YOUR SECONDARY CONCERN IN A PATIENT WHO
18 YOU'RE PRIMARILY PROVIDING PALLIATIVE CARE. IT'S A COMPLETELY
19 IRRELEVANT STATEMENT. BUT IT'S ALSO NOT ONLY IRRELEVANT IN
20 THIS CASE, IT MAY BE HIGHLY MISREPRESENTATIVE IN THAT THERE
21 ARE, AGAIN, PATIENTS WHO WE DOSE, AND I KNOW DR. HARE DOES
22 THIS EVERY DAY IN HOSPITAL, WILL DOSE EVERY TEN MINUTES WITH
23 OPIOID ANALGESICS WITHOUT WORRYING ABOUT DOSES, YOU KNOW, IN
24 HIS WORDS, PILING UP. BECAUSE THAT'S WHAT IT TAKES TO RELIEVE
25 THEIR SYMPTOMS, THE PRIMARY END GOAL OF THERAPY.
65
1 Q. AND THEN HE GOES ON TO SAY ON LINE 21, ASSUMING THAT HE
2 SAID THIS, THAT THERE SEEMED TO BE NO CLEAR INDICATION THAT
3 THE PATIENT WAS HAVING PAIN.
4 DO YOU AGREE WITH THAT STATEMENT?
5 A. I'M SORRY, WHICH LINE?
6 Q. LINE 20.
7 A. LINE 20. WELL, I QUESTION THE -- HIS BASIS FOR MAKING
8 THAT STATEMENT, FROM MY -- FROM MY -- THE NOTES I CULLED FROM
9 THE MEDICAL RECORDS. THERE'S A DOCTOR'S NOTE THAT STATES,
10 SEEMS IN DISCOMFORT. THE NURSE'S NOTES SUPPORT THAT BY SAYING
11 THAT THE PATIENT IS RESPONDING TO PAINFUL STIMULI. AND THE
12 PATIENT APPEARS TO BE IN PAIN. AND THERE'S NO RELIEF OR THE
13 PATIENT'S GROANING.
14 Q. PAGE 66, AT THE TOP, ASSUMING THAT DR. HARE STATED THIS,
15 AS RELATING TO ONE SIDE OF MORPHINE TOXICITY WOULD BE
16 UNCONSCIOUSNESS. THE PATIENT'S BREATHING RATE WAS SLOW. IT
17 WAS AROUND -- WELL, THE FEW TIMES IT'S NOTED HERE, IT WAS
18 AROUND 12, WHICH IS ON THE LOW SIDE.
19 DO YOU HAVE AN OPINION ABOUT THE ACCURACY OF THAT
20 STATEMENT?
21 A. WELL, I DON'T AGREE WITH HIS CONCLUSIONS.
22 Q. IN WHAT RESPECT?
23 A. A RESPIRATORY RATE OF 12 IS COMPLETELY NORMAL FOR A
24 PATIENT AT REST AND FOR ACTUALLY EVERYBODY IN THIS COURTROOM
25 WHILE THEY'RE ASLEEP. SO SINCE ONE OF THE GOALS WAS -- AND
66
1 THE DEFINED INTENDED THERAPEUTIC GOAL WAS COMFORT AND REST,
2 THAT THE RESPIRATORY RATE FIT THAT THERAPEUTIC GOAL. AND IN
3 FACT, EVEN IN NORMAL, HEALTHY PEOPLE, YOU'D SEE THAT AS A
4 NORMAL RESTING RESPIRATORY RATE.
5 Q. ON PAGE 55, LINE 12, ASSUMING THAT DR. HARE STATED AT THE
6 TRIAL, AND THIS RELATES TO PATIENT ELLEN ANDERSON, BUT AT
7 7:30, THEY THOUGHT THE PATIENT HAD DIED. SO I GUESS THAT'S
8 EXPECTED. DO YOU HAVE AN OPINION CONCERNING THE ACCURACY OF
9 THAT STATEMENT?
10 A. WELL, AGAIN, I BELIEVE IT'S INACCURATE FROM MY READING OF
11 THE CHART.
12 Q. AND WHY IS IT INACCURATE?
13 A. WELL, I WAS WONDERING HOW THIS COULD BE IF THE NURSE HAD
14 NOTED THAT THERE WAS -- INDEED THERE WAS A PULSE,
15 RESPIRATIONS, AND HER EYES WERE BLINKING. THOSE AREN'T SIGNS
16 OF DEATH.
17 Q. ON PAGE 54, ASSUMING THAT DR. HARE TESTIFIED, RELATING TO
18 PATIENT ELLEN ANDERSON, AT THE TOP, THE PATIENT WAS UNABLE TO
19 BLINK EYES AND AT THAT POINT THEY FELT THE PATIENT HAD
20 PROBABLY DIED.
21 WHAT IS YOUR OPINION AS TO THE ACCURACY OF THAT
22 STATEMENT?
23 A. MY CONCLUSION WAS THAT DR. HARE HAD NOT -- I DUNNO IF HE
24 WAS READING THE CHART AT THAT MOMENT IN TIME WHEN HE REPORTED
25 THAT OR WAS GOING BY MEMORY, BUT EITHER WAY, IT WAS -- IT WAS
67
1 NOT AN ACCURATE STATEMENT.
2 Q. IN WHAT RESPECT?
3 A. IT WAS JUST WRONG. THE CHART -- THE NURSES' NOTES IN THE
4 CHART STATE, PATIENT ABLE TO BLINK EYES. THE NURSES' NOTES
5 STATE THAT THERE WAS AN ATTEMPT AT FAMILY CONTACT. AND THE
6 PATIENT DID NOT DIE UNTIL 8:55 IN THE MORNING.
7 Q. DOWN BELOW IT SAYS, ASSUMING THAT STATED, THE HEART WAS
8 BEATING VERY FAST. I CAN'T SAY PRECISELY WHAT IT WAS. THE
9 TACHYCARDIA WITH MARKED SINUS ARRHYTHMIA. THAT MEANS THE
10 HEART WAS BEATING FAST BUT IRREGULARLY. THERE WERE
11 NONSPECIFIC T. WAY -- T. WAVE ABNORMALITIES. THAT CAN MEAN
12 THAT THERE IS -- THAT THE HEART ISN'T GETTING ENOUGH OXYGEN.
13 AND ASSUMING HE'S ASKED THE QUESTION WHAT HE JUST DESCRIBED,
14 IS THAT CONSISTENT WITH MORPHINE TOXICITY, AND HE SAID THAT
15 CERTAINLY WOULD BE MORE THE LONG-TERM EFFECTS.
16 DO YOU HAVE AN OPINION AS TO THE ACCURACY OF THAT
17 STATEMENT?
18 A. YES, I HAVE AN OPINION.
19 Q. WHAT IS YOUR OPINION?
20 A. WELL, IT'S -- I THINK IT'S ACTUALLY QUITE AN
21 IRRESPONSIBLE STATEMENT IN THAT --
22 MR. MAJOR: YOUR HONOR, I'M GOING TO OBJECT AS TO
23 CHARACTERIZATION. IF HE -- IF HE WANTS TO STATE HIS OPINION
24 AS TO THE ACCURACY, THAT'S FINE.
25 THE WITNESS: WELL, LET ME DEFINE WHAT I MEAN IN
68
1 MEDICAL TERMS BY RESPONSIBLE AND IRRESPONSIBLE THEN.
2 MR. STIRBA: OKAY.
3 MR. WILSON: OBJECTION, YOUR HONOR. I THINK --
4 THE COURT: OVERRULED.
5 MR. WILSON: I THINK --
6 THE WITNESS: WHAT PHYSICIANS DO IN MAKING CONCLUSIONS
7 ABOUT SIGNS AND SYMPTOMS THAT IS VIEWED AS RESPONSIBLE IS TO
8 FORMULATE A DIFFERENTIAL DIAGNOSIS AND TO BE AS SPECIFIC AS
9 POSSIBLE RELATED -- RELATING THOSE SIGNS AND SYMPTOMS TO
10 CAUSAL EFFECTS AND TO UNDERLYING PATHOPHYSIOLOGY.
11 IRRESPONSIBLE CONCLUSIONS ARE WHEN NONSPECIFIC STATEMENTS OR
12 ATTRIBUTIONS ARE MADE. AND THIS STATEMENT OF DR. HARE'S IS
13 TOTALLY NONSPECIFIC. AND WHAT I WAS WONDERING IS WHY HE DOES
14 NOT DO WHAT PHYSICIANS ARE -- USUALLY DO IN THEIR THINKING AND
15 TRAINING PROCESSES, WHICH IS TO RECITE A DIFFERENTIAL
16 DIAGNOSIS WITH ALL POSSIBILITIES, AND THEN TO -- TO DELIMIT
17 THEM BASED UPON MOST LIKELY CAUSES.
18BY MR. STIRBA:
19 Q. PAGE 34, ASSUMING THAT DR. HARE WAS ASKED THIS QUESTION,
20 SO ASSUMING AN INDIVIDUAL HAD A DURAGESIC PATCH PLACED ON
21 THEM, 25 MICROGRAMS, THAT WOULD -- WOULD THAT -- WHAT WOULD
22 THAT EQUATE TO IN TERMS OF AN INTERMUSCULAR INJECTION?
23 AND ASSUMING THE ANSWER WAS, THIS IS IN TERMS OF
24 MILLIGRAMS OF MORPHINE PER DAY, NOT PER INJECTION, IT WOULD BE
25 SOMEWHERE BETWEEN 15 AND 40. AROUND 40, 45 MILLIGRAMS OF
69
1 INJECTABLE MORPHINE PER DAY. "SO THAT'S A PRETTY SIZEABLE
2 DOSE. THAT WOULD BE THE SORT OF DOSE THAT I WOULD EXPECT A
3 PATIENT WHO HAS FAIRLY MAJOR SURGERY TO REQUIRE."
4 IS THAT AN ACCURATE STATEMENT, ASSUMING IT WAS TESTIFIED
5 TO?
6 A. I BELIEVE IT IS AN INACCURATE STATEMENT.
7 Q. AND TELL US PRECISELY WHY IT IS INACCURATE.
8 A. WELL, AS A SORT OF CREDIBILITY ISSUE. I MEAN I -- I'VE
9 SERVED FOR NOW A COUPLE YEARS ON THE NATIONAL ADVISORY BOARD
10 FOR THE PHARMACEUTICAL USE OF THIS PARTICULAR FORMULATION OF
11 FENTANYL, THE DURAGESIC PATCH, WHICH IS A TRANSDERMAL DELIVERY
12 SYSTEM FOR THIS OPIOID ANALGESIC. AND DR. HARE'S CONCLUSION
13 ABOUT MILLIGRAM EQUIVALENTS IS VERY -- IS HIGHLY EXAGGERATED,
14 WHERE HE STATES A RANGE OF 15 TO 40 FOR -- AND HE CONCLUDES 40
15 TO 45 MILLIGRAMS OF MORPHINE PER DAY, IT'S THE EQUIVALENT --
16 DOSE EQUIVALENCY IS MORE IN THE RANGE OF 15 TO 20. SO HE'S
17 OFF BY A FACTOR OF 100 PERCENT. AND THAT SIMILAR PATIENTS WHO
18 USE OPIOID ANALGESICS FOR RELIEF OF, SAY, POST-OPERATIVE PAIN
19 USE ON THE ORDER OF -- FOR MAJOR SURGERIES, ANYWAY, ON THE
20 ORDER OF 40 TO 80 MILLIGRAMS PER DAY. AND THESE ARE STUDIES
21 THAT WE'VE DONE AT UNIVERSITY HOSPITAL. DR. HARE WAS ACTUALLY
22 INVOLVED IN SOME OF THESE FIRST STUDIES, SO HE -- HIS
23 STATEMENT THAT PATIENT HAS HAD A FAIRLY MAJOR SURGERY TO
24 REQUIRE, HE'S -- I THINK HE'S OVEREXAGGERATING THE DOSE
25 EQUIVALENCY OF A PATIENT HERE WHO RECEIVED THIS. AND
70
1 UNDERESTIMATING THE DOSE REQUIREMENTS THAT HE SEES EVERY
2 SINGLE DAY IN HIS PRACTICE THAT ARE TOLERATED AND DO NOT CAUSE
3 TOXICITY.
4 Q. DO YOU HAVE AN OPINION AS TO WHETHER OR NOT, AS HE HAS
5 CHARACTERIZED IT, ASSUMING HE SAID THIS, WHETHER THAT'S A
6 PRETTY SIZEABLE DOSE?
7 A. OH, HIS STATEMENT THAT -- WELL, AGAIN, THE DOSE IS THE
8 DOSE THAT AFFECTS THE THERAPY YOU'RE SEEKING. AND WHAT WE DO
9 KNOW IN THE RANGE OF OPIOID ANALGESICS IS THERE MAY BE A
10 TENFOLD VARIANCE IN THE DOSE FOR A SIMILAR APPEARING CONDITION
11 FROM ONE PATIENT TO ANOTHER. AND EVEN -- AND WHAT'S EVEN MORE
12 DIFFICULT AND TO DEAL WITH SCIENTIFICALLY, IS THAT
13 INTRA-INDIVIDUAL DIFFERENCES. FOR INSTANCE, A PATIENT -- THE
14 EXACT SAME PATIENT MAY HAVE THE SAME SURGERY, FOR INSTANCE, A
15 HIP REPLACEMENT THREE MONTHS APART, AND ON ONE SURGERY VERSUS
16 THE OTHER MAY ONLY USE HALF OR A THIRD OR A TENTH OF THE
17 ANALGESIC, AND WE DO NOT HAVE A GOOD UNDERSTANDING NECESSARILY
18 WHY, EXCEPT THAT THERE ARE ALL THESE ENVIRONMENTAL INFLUENCES
19 AND PERHAPS INTERNAL INFLUENCES THAT WE DON'T YET HAVE A
20 FIRM -- FIRM GRASP ON. BUT I WOULD SAY THAT HIS CONCLUSION
21 THAT THIS IS SIZEABLE IS SORT OF A QUALITATIVE DETERMINATION
22 THAT HAS NO -- NO BASIS IN -- IN SORT OF MEDICAL SCIENCE OR
23 CLINICAL SCIENCE TO SUBSTANTIATE IT.
24 Q. DOWN AT THE BOTTOM OF THAT PAGE, ASSUMING HE SAID, IN
25 OTHER WORDS, WE WOULD BE WORKING ON A DOSING SOMEWHERE BETWEEN
71
1 75 AND SOMEWHAT OVER A HUNDRED MILLIGRAMS OF MORPHINE PER DAY.
2 SO THAT'S A LARGE AMOUNT.
3 DO YOU HAVE AN OPINION AS TO THE ACCURACY OF THAT
4 STATEMENT?
5 A. AGAIN, LARGE AMOUNT IS A QUALITATIVE STATEMENT THAT HAS
6 NO CLINICAL FOUNDATION OTHER THAN THE SPECIFIC CONTEXT OF A
7 GIVEN PATIENT'S CIRCUMSTANCES AT A GIVEN MOMENT IN TIME. BUT
8 I WOULD SAY THAT HIS CONCLUSIONS REGARDING DOSE EQUIVALENCIES
9 ARE -- ARE SIGNIFICANTLY IN ERROR. AND THAT HE RELATES THE 75
10 MICROGRAMS WHICH WOULD BE EQUIVALENT TO, AS I CALCULATED FOR A
11 FULL 24-HOUR DOSING AS ABOUT A RANGE OF 30 TO 60 MILLIGRAMS IN
12 A 24-HOUR PERIOD.
13 Q. ON PAGE 27, ASSUMING HE STATED THIS AT THE TRIAL, WELL,
14 THIS PARTICULAR EXHIBIT COMPARES THE NORMAL ADULT STARTING
15 DOSE WITH THE STARTING DOSE THAT MIGHT BE GIVEN TO AN ELDERLY
16 PATIENT --
17 A. I'M SORRY, I -- I'M -- I'VE LOST YOU.
18 Q. I'M SORRY. PAGE 27, DOCTOR.
19 A. 27. I'M SORRY. I FOUND IT.
20 Q. ASSUMING THAT HE STAYED, WELL, THIS PARTICULAR EXHIBIT
21 COMPARES THE NORMAL ADULT STARTING DOSE WITH THE STARTING DOSE
22 THAT MIGHT BE GIVEN TO AN ELDERLY PATIENT. FOR A NORMAL ADULT
23 STARTING DOSE, IT'S ONE TO TEN MILLIGRAMS BY MOUTH PER DAY AND
24 THREE DOSES. A NORMAL STARTING DOSE IN AN ELDERLY PATIENT IS
25 MUCH LESS THAN THAT. SO ONE-HALF TO ONE MILLIGRAM BY MOUTH A
72
1 DAY IN DIVIDED DOSES. NO MORE THAN TWO MILLIGRAMS PER DAY, A
2 HUGE REDUCTION FROM THE NORMAL DOES.
3 DO YOU HAVE AN OPINION AS TO THE ACCURACY OF THAT
4 STATEMENT?
5 MR. WILSON: EXCUSE ME, COUNSEL, DID YOU DEFINE WHAT
6 PARTICULAR SUBSTANCE WE'RE TALKING ABOUT IN THE COURSE OF
7 THAT?
8 MR. STIRBA: WELL, ASSUMING HE'S TALKING ABOUT
9 MORPHINE.
10 MR. WILSON: DOES IT RELATE IN --
11 THE WITNESS: I WAS ACTUALLY LOOKING FOR THE SAME
12 THING. I THINK THE -- TALKING ABOUT SEDATE -- SEDATIVE. I
13 THINK HE'S TALKING ABOUT ATIVAN. IT HAS -- IT GOES ALL THE
14 WAY BACK TO PAGE 25.
15BY MR. STIRBA:
16 Q. DO YOU BELIEVE IT'S REFERRING TO ATIVAN?
17 A. YEAH.
18 Q. OKAY. AND INSOFAR AS ATIVAN IS CONCERNED, DO YOU HAVE AN
19 OPINION WITH RESPECT TO THAT?
20 A. YES, I DO.
21 Q. AND WHAT IS YOUR OPINION?
22 A. THAT IT'S AN OVERGENERALIZATION, THAT THERE ARE MANY
23 EXCEPTIONS, ESPECIALLY AGITATED AND DELIRIOUS PATIENTS WHO MAY
24 REQUIRE EXTRAORDINARILY HIGH DOSES OF BOTH ONE OR MORE
25 BENZODIAZEPINE, WHICH IS THE CLASS OF DRUG THIS IS, OR
73
1 ANTIPSYCHOTIC, AND THAT THAT STATEMENT OF MINE IS -- IS
2 REFERENCE TO THE PALLIATIVE MEDICINE LITERATURE ON THE
3 SUBJECT.
4 Q. IN LOOKING AT THE LITERATURE, DID YOU ATTEMPT TO TRY TO
5 FIND SOME KIND OF INFORMATION RELATIVE TO THE MORPHINE DOSING
6 AS YOU SAW IT IN THESE PARTICULAR CASES?
7 A. YES, I MEAN DRAWING ON MY OWN EXPERIENCE, AND AGAIN I --
8 I'M REFERRING TO 30,000 PATIENTS TREATED LAST YEAR, NOT
9 EXACTLY WITH THESE CONDITIONS, BUT SIMILAR CONDITIONS, BUT I'M
10 NOT SURE SINCE MY -- I'M NOT -- I CAN'T REFER TO A
11 PUBLICATION. WITH MY EXPERIENCE, I -- I DID SEEK -- SEARCH
12 THE LITERATURE TO SEE IF THAT WAS SIMILAR TO WHAT HAD BEEN
13 REPORTED IN LIKE CONDITIONS. AND I -- I HAVE SOME LITERATURE
14 TO REFERENCE, YES.
15 Q. AND WHAT DID YOU FIND?
16 A. WELL, IN ONE REFERENCE BY -- BY THE -- A RESEARCHER
17 CALLED REEVES FROM 1990, HE LOOKED AT AGE DISTRIBUTION AND
18 MORPHINE USE FOR CONTROL OF MODERATE TO SEVERE PAIN SYNDROMES,
19 AND FOUND A DOSE RANGE, DEPENDING UPON THE AGE GROUP, OF
20 BETWEEN 60 TO 780 MILLIGRAMS FOR 24 HOURS. AND HE DID
21 DEMONSTRATE THAT THERE IS CERTAINLY DOSE REDUCTION WITH AGE,
22 AND WE KNOW THAT, THAT THERE IS A SENSITIVITY BOTH IN TERMS OF
23 RESPONSE TO DRUGS AND AN ALTERATION IN METABOLISM OF DRUGS.
24 BUT IN THESE STUDIES, AGAIN, TO BRING MODERATE TO SEVERE --
25 SEVERE PAIN SYNDROMES UNDER CONTROL, HE FOUND IN THE AGE
74
1 DISTRIBUTION FROM AGE 70 TO AGE A HUNDRED, WHICH I THINK ALL
2 THESE PATIENTS FIT INTO THAT CATEGORY, THE MEAN DAILY TOTAL
3 DOSE IN MILLIGRAMS PER DAY WAS SOMEWHERE AROUND THE ORDER OF
4 200 MILLIGRAMS. Note: Highest dose for these patients=135 mg./day.
5 Q. NOW, DOCTOR, ASSUMING THAT YOU WERE CALLED TO TESTIFY AS
6 AN EXPERT WITNESS IN THIS CASE, WHETHER ON BEHALF OF THE STATE
7 OR ON BEHALF OF THE DEFENSE, DO YOU FEEL THERE ARE OTHER
8 THINGS THAT YOU WOULD WANT TO DO FOR PURPOSES OF BEING
9 ADEQUATELY PREPARED?
10 A. WELL, IF I WAS ACTUALLY TO SERVE IN THE FORMAL DESIGNATED
11 MANNER THAT YOU SUGGEST, I'D CERTAINLY ORGANIZE MY NOTES IN A
12 WAY THAT THEY'RE MORE EASILY RETRIEVABLE AND STRUCTURED AND
13 ORGANIZED AND COMPLETE RATHER THAN JUST BRIEF ANNOTATIONS. I
14 WAS -- I WAS NOT INSTRUCTED NECESSARILY TO TAKE THE FULL
15 AMOUNT OF TIME IN ORDER TO DO THAT, BUT SIMPLY TO GLEAN AN
16 OPINION. AND I PUT THE NOTES DOWN TO REFRESH MY MEMORY AS TO
17 WHAT THE CARDINAL FINDINGS WERE THAT LED ME TO THE OPINION
18 THAT I ALREADY HAVE TESTIFIED TO.
19 Q. AND IN TERMS OF DR. HARE'S OPINIONS, ASSUMING THEY ARE
20 ACCURATELY REFLECTED IN THE TRANSCRIPT THAT YOU HAVE, OF
21 COURSE YOU WOULD BE PREPARED ON OTHER AREAS SIMILAR TO -- AS
22 YOU ARE -- HAVE ALREADY TESTIFIED, ISN'T THAT TRUE?
23 A. WELL, INSOMUCH AS I DON'T THINK WE COVERED ALL THE AREAS
24 THAT I DID HAVE CONCERNS OR QUESTIONS ABOUT, AND PRESUMING I
25 HAD ACCESS TO THE TESTIMONY AND THE -- AND THE STATEMENTS THAT
75
1 WERE MADE, YES, I WOULD BE PREPARED TO ADDRESS THEM IN A
2 SIMILAR MANNER THAT WE DID TODAY BY RELATING THEM TO EITHER
3 MEDICAL EVIDENCE AND FACTS AS WE UNDERSTAND THEM AND
4 CONTEMPORARY MEDICAL SCIENCE AND CLINICAL PRACTICE, OR IN
5 REFERENCE TO THE MEDICAL RECORDS THAT -- THAT WOULD PERTAIN TO
6 THESE PARTICULAR PATIENTS.
7 Q. ARE THERE ANY GENERAL AREAS THAT WE HAVE NOT COVERED FOR
8 PURPOSES OF TODAY'S EXAMINATION AND YOUR EXAMINATION ABOUT A
9 WEEK OR SO AGO IN TERMS OF CATEGORIES WHERE YOU MIGHT
10 OTHERWISE HAVE OPINIONS PRESENTLY BASED UPON YOUR REVIEW OF
11 THE RECORDS?
12 A. NO, SIR. I THINK YOU'VE COVERED ALL THE BASES.
13 MR. STIRBA: GREAT. THANK YOU. THAT'S ALL I HAVE,
14 JUDGE.
15 THE COURT: MR. WILSON.
16 MR. WILSON: YOUR HONOR, IF IT PLEASE THE COURT, IT'S
17 ABOUT A QUARTER TO FIVE. I WOULD ANTICIPATE THAT I WOULD --
18 MY CROSS-EXAMINATION MIGHT TAKE SOME TIME.
19 THE COURT: WELL, BOTH YOU GUYS TOLD ME WE'D BE DONE
20 BY FIVE TODAY.
21 MR. MAJOR: I APPRECIATE THAT, YOUR HONOR.
22 THE COURT: HOW LONG DO YOU THINK IT'S GONNA TAKE?
23 MR. WILSON: I'LL PROBABLY BE AT IT FOR AN HOUR AND A
24 HALF, I WOULD IMAGINE. AND I HATE TO PROLONG THIS I THINK
25 JUST AS MUCH AS THE COURT --
76
1 THE COURT: WELL, I --
2 MR. WILSON: -- BUT I THINK IT'S IMPORTANT THAT I
3 HAVE THE OPPORTUNITY TO EXAMINE HIM FULLY.
4 THE COURT: OH, WELL, I AGREE, BUT I'M -- I GUESS
5 I'M OF AN OPINION OF EVERYBODY -- I'VE ASKED THE CLERK AND I
6 THOUGHT I ASKED THE COURT REPORTER IF WE COULD STAY LATE. AND
7 I THINK THEY BOTH INDICATED I'M -- I'M PREPARED IF THE PARTIES
8 ARE TO CONTINUE.
9 THE WITNESS: YOUR HONOR, I'D RATHER CONTINUE ON IF
10 THAT'S -- RATHER THAN TAKE ANOTHER WHOLE DAY OFF FROM
11 PRACTICE, IF IT'S POSSIBLE.
12 THE COURT: WELL, IS THAT ALL RIGHT WITH OUR COURT
13 REPORTER? I GUESS WE HAVE TO -- WHAT'S THE SITUATION WITH THE
14 PRISON?
15 PRISON GUARD: WE'RE HERE. IT'S UP TO YOU.
16 THE COURT: OKAY. LET'S KEEP GOING. SEE HOW
17 WE'RE --
18 MR. MAJOR: CAN WE TAKE A FIVE-MINUTE BREAK THEN,
19 YOUR HONOR?
20 THE COURT: SURE. WE'LL TAKE A -- LET'S JUST MAKE
21 IT FIVE MINUTES THEN.
22 (WHEREUPON THE COURT TOOK A RECESS.)
23 THE COURT: WE'RE BACK ON THE RECORD IN THE CASE OF
24 STATE OF UTAH VERSUS ROBERT ALLEN WEITZEL, AND NOW WE'RE ALL
25 HERE. AND, MR. WILSON, IF YOU'D LIKE TO GO AHEAD AND
77
1 CROSS-EXAMINE.
2 MR. WILSON: THANK YOU, YOUR HONOR.
3 CROSS-EXAMINATION
4BY MR. WILSON:
5 Q. I -- MY QUESTION WAS, IS DID YOU EVER HAVE OCCASION TO
6 WRITE AN OPINION LETTER RELATIVE TO YOUR TESTIMONY HERE TODAY?
7 A. THINK THE ONLY THINGS IN PRINT ARE THE LETTER THAT I
8 SUBMITTED TO HIS HONOR AND TO -- AND THE AFFIDAVIT.
9 Q. OKAY. NOW, WHAT I WANT TO UNDERSTAND AGAIN FOR PURPOSES
10 OF THE RECORD IS JUST WHAT INFORMATION YOU WERE SUPPLIED WITH
11 PRIOR TO THESE PROCEEDINGS HERE TODAY.
12 A. I RECEIVED MEDICAL RECORDS FROM THE GEROPSYCHIATRIC UNIT
13 ON THE FIVE PATIENTS THAT WE'RE REFERRING TO TODAY. TEST --
14 COURT TESTIMONY THAT'S TRANSCRIBED BY DR. BRAD HARE AND
15 ANOTHER EXPERT WITNESS, DR. LAUREL HERBST.
16 Q. OKAY. DID YOU ALSO ANALYZE DR. HERBST'S TESTIMONY?
17 A. READ IT AND THINK ABOUT IT AND ANALYZE IT? I MEAN WHAT
18 DO YOU MEAN?
19 Q. WELL, DID YOU REVIEW IT?
20 A. OH, YES.
21 Q. OKAY. DID YOU MAKE THE SAME NOTATIONS RELATIVE TO HER
22 TESTIMONY AS YOU MADE TO DR. HARE'S TESTIMONY?
23 A. I DID NOT FIND THE OCCASION TO CRITICIZE IT IN SAME --
24 THE SAME EXTENT.
25 Q. SO YOU DIDN'T -- YOU DIDN'T LOOK AT IT IN THAT LIGHT AS
78
1 FAR AS CRITICIZING IT?
2 A. OH, YES, I DID.
3 Q. OH, OKAY.
4 A. I JUST DIDN'T FIND IT TO BE AS CRIT --
5 Q. YOU JUST DIDN'T FIND THAT MANY AREAS THAT YOU FELT YOU
6 COULD CRITICIZE BASED UPON YOUR EXPERTISE, IS THAT CORRECT?
7 A. WELL, AS I SAID, I JUST DID NOT FIND IT TO BE AS
8 CRITICIZABLE.
9 Q. OKAY. WOULD YOU FIND THAT SHE TESTIFIED TO A NUMBER OF
10 THE SAME THINGS THAT YOU TESTIFIED HERE TODAY?
11 A. ACTUALLY, MY -- IN MY CRITICISM OF HER TESTIMONY -- AND I
12 GUESS CRITICISM IS ANOTHER WORD FOR ANALYSIS -- I FOUND THAT
13 THERE WERE MANY -- SEVERAL OF THE AREAS WHICH I AM TESTIFYING
14 THAT WERE NOT TOUCHED UPON --
15 Q. AS THEY RELATED TO HER TESTIMONY?
16 A. WELL, IT WAS SIMPLY QUESTIONS THAT MR. STIRBA AND
17 YOURSELF ASKED HER, IF I REMEMBER CORRECTLY.
18 Q. OKAY. SO THOSE AREAS WERE NOT EXPLORED ACCORDING TO WHAT
19 YOU'VE SEEN IN THE RECORD, IS THAT CORRECT?
20 A. WELL, TO THE BEST OF MY RECOLLECTION, WE'VE COVERED
21 TERRITORY TODAY THAT WAS NOT SPECIFICALLY COVERED. AND THERE
22 WERE AREAS THAT WERE COVERED IN HER TESTIMONY THAT WE HAVE NOT
23 GONE INTO AS MUCH DETAIL --
24 Q. WAS THERE AREAS CONCERNING END-OF-LIFE CARE THAT WERE NOT
25 COVERED IN HER TESTIMONY?
79
1 A. I BELIEVE SO, YES.
2 Q. OKAY. WERE THERE AREAS OF PAIN MANAGEMENT THAT WERE NOT
3 COVERED IN HER TESTIMONY IN THE ELDERLY?
4 A. YES, I BELIEVE SO.
5 Q. WOULD IT SURPRISE YOU TO KNOW THAT SHE TALKED ABOUT
6 CAUSATION IN HER TESTIMONY?
7 A. I DON'T KNOW, I'M NOT SURPRISED BY MUCH, I --
8 Q. WOULD IT SURPRISE YOU TO KNOW SHE TALKED ABOUT PAIN
9 MEDICATION IN HER TESTIMONY?
10 A. OH, I KNOW SHE TALKED ABOUT PAIN MEDICATION.
11 Q. SO SHE COVERED ALL OF THESE TOPICS, THE GENERAL TOPICS
12 THAT WE'RE TALKING ABOUT HERE TODAY. SHE JUST DIDN'T COVER
13 CERTAIN DETAILS OF THOSE TOPICS, IS THAT CORRECT?
14 A. AND SHE DIDN'T COVER THEM IN CERTAIN WAYS. THERE'S --
15 THERE'S BOTH BREADTH AND DEPTH --
16 Q. OKAY. SO SHE DIDN'T COVER THEM IN CERTAIN WAYS, BUT SHE
17 DID COVER IN FACT THE SAME TOPICS THAT YOU'VE TESTIFIED HERE
18 TODAY, IS THAT CORRECT?
19 A. GENERAL AREAS OF END-OF-LIFE CARE AND PAIN WERE COVERED
20 IN HER TESTIMONY TO THE BEST OF MY RECOLLECTION --
21 Q. OKAY.
22 A. -- AS TOPICS, YES.
23 Q. AND ALSO IN REFERENCE TO THE CAUSATION, DID SHE NOT IN
24 FACT TESTIFY RELATIVE TO CAUSATION?
25 A. AS A GENERAL CATEGORY?
80
1 Q. UH-HUH.
2 A. I BELIEVE SHE TALKED ABOUT -- ABOUT CAUSATION.
3 Q. OKAY. NOW, YOU'VE INDICATED THAT YOU HAVE A POSITION
4 WITH VISTA, WHICH IS THE LARGEST PROVIDER OF HOSPICE CARE.
5 A. GEOGRAPHICALLY SPEAKING, YES.
6 Q. GEOGRAPHICALLY SPEAKING. DOES THAT -- WHAT DOES THAT DO?
7 DOES THAT COVER A BUNCH OF HOSPICE CARE CENTERS OR IS THAT
8 HOSPICE CARE IN-HOME OR WHAT?
9 A. NO, IT'S -- ABOUT 80 PERCENT OF IT IS CARE IN THE
10 PATIENTS' HOMES AND THE REMAINDER IS ONE TYPE OF INSTITUTION
11 OR ANOTHER.
12 Q. AND IN THAT CAPACITY, YOU HELP TO SET THE STANDARDS OF
13 THAT CARE, IS THAT CORRECT?
14 A. I OVER -- SET AND OVERSEE THE QUALITY OF CARE. AT LEAST
15 THAT HAS BEEN MY RESPONSIBILITY, AS WELL AS A NUMBER OF
16 OTHER -- OTHER DUTIES.
17 Q. NOW, YOU DON'T REVIEW THE CASES OF ALL 30,000 PATIENTS,
18 DO YOU?
19 A. NOT EVERY SINGLE ONE, NO, SIR.
20 Q. AND SO I WOULD TAKE IT FROM A GENERAL STANDPOINT, YOU --
21 YOU TALK IN TERMS OF GENERALITIES OR YOU SET CERTAIN STANDARDS
22 THAT SHOULD BE ADHERED TO IN THE CARE OF THESE PATIENTS, IS
23 THAT CORRECT?
24 A. THAT THE PROVIDERS OF CARE ARE EXPECTED TO FOLLOW AND ARE
25 AUDITED AND REVIEWED BY BOTH INTERNALLY AS WELL AS BY THE
81
1 VARIOUS STATES AND -- AND REGULATORY BODIES THAT OVERSEE
2 ACCREDITATION, CERTIFICATION OF THE PROGRAMS, YES.
3 Q. NOW, IF AN INDIVIDUAL IS DETERMINED TO BE HOSPICE
4 ELIGIBLE, AS I UNDERSTAND IT, THAT IS A DIAGNOSIS, IF YOU
5 WILL, THAT THEY ARE -- IN FACT MEET THE STANDARDS OF TERMINAL
6 CONDITION?
7 A. WELL, IT'S A PROGNOSIS, YES.
8 Q. A PROGNOSIS?
9 A. YES.
10 Q. AS TO TERMINAL CONDITION.
11 A. AS TO MEET THE ELIGIBILITY REQUIREMENTS FOR THE -- FOR
12 THE HOSPICE MEDICARE BENEFIT.
13 Q. OKAY.
14 A. IT'S ONLY APPLICABLE REALLY TO THE HOSPICE MEDICARE
15 BENEFIT.
16 Q. AND AS I UNDERSTAND IT FROM YOUR EARLIER TESTIMONY,
17 THAT'S SOMETHING THAT IS DONE BY TWO PHYSICIANS, IS THAT
18 CORRECT?
19 A. IT CAN BE DONE -- IT'S USUALLY DONE BY TWO PHYSICIANS
20 BECAUSE THE REFERRING PHYSICIAN IS NOT NECESSARILY THE HOSPICE
21 MEDICAL DIRECTOR. AND -- BUT IF THE HOSPICE MEDICAL DIRECTOR
22 IS ALSO THE PATIENT'S PRIMARY CARE PHYSICIAN, IT IS ONLY THAT
23 ONE PHYSICIAN THAT WOULD CERTIFY THE PATIENT.
24 Q. AND THAT WOULD BE THE HOSPICE MEDICAL DIRECTOR, IS THAT
25 CORRECT?
82
1 A. YES. THEN THERE --
2 Q. OKAY.
3 A. -- CLEARLY THERE ARE MANY CIRCUMSTANCES WHERE THAT IS
4 INDEED THE CASE.
5 Q. SO -- SO IN -- IN -- WOULD YOU CHARACTERIZE FOR US IF YOU
6 WOULD PLEASE, THE NUMBER OF CASES GENERALLY THAT ARE REVIEWED
7 BY TWO PHYSICIANS VIS-A-VIS JUST ONE PHYSICIAN?
8 A. I -- I WOULD HAVE NO WAY TO --
9 Q. OKAY.
10 A. I'VE NEVER AUDITED THAT --
11 Q. AND THE ONLY THING AS I UNDERSTAND IT THAT MEANS IS THIS
12 PATIENT IS SUFFERING FROM VARIOUS DISEASE PROCESSES WHICH LEAD
13 YOU TO PROGNOSTICATE, IF YOU WILL, THAT THEY HAVE THREE TO SIX
14 MONTHS LIFE EXPECTANCY, IS THAT CORRECT?
15 A. NO, IT'S NOT EXACTLY CORRECT.
16 Q. OKAY. WHAT WOULD BE CORRECT?
17 A. THAT THE PATIENT IS DETERMINED TO HAVE A LIFE EXPECTANCY
18 OF SIX MONTHS OR LESS MORE LIKELY THAN NOT IF THE DISEASE
19 PROCESS RUNS ITS NORMAL COURSE.
20 Q. RUNS ITS NORMAL COURSE. AND SO ONCE THEY BECOME HOSPICE
21 ELIGIBLE, THEN THERE ARE CERTAIN I GUESS AVAILABILITY OF
22 RESOURCES TO THEM FOR CARE AND TREATMENT IN THAT -- IN THAT
23 PROCESS OF LIVING OUT THE REST OF THEIR LIFE, IS THAT CORRECT?
24 A. IT'S CORRECT -- IT IS CORRECT THAT HOSPICE MEDICARE
25 BENEFIT DOES DEFINE SPECIFIC ASPECTS OF CARE THAT NEED TO BE
83
1 AT LEAST OFFERED TO THE PATIENT.
2 Q. DO YOU HAVE ANY -- IN THE VISTA PROGRAM, DO YOU HAVE ANY
3 PROVIDERS THAT ARE LOCATED IN HOSPITAL SETTINGS?
4 A. I'M NOT EXACTLY SURE WHAT YOU -- BECAUSE WE --
5 Q. WELL, DO YOU HAVE ANY PROVIDERS OF HOSPICE CARE THAT ARE
6 LOCATED IN HOSPITAL SETTINGS?
7 A. IT IS -- IT DOES OCCUR THAT OUR HOSPICE CARE PROVIDERS
8 ARE REFERRED PATIENTS WHILE THEY STILL ARE IN HOSPITAL, IN
9 WHICH CASE HOSPICE CARE CAN BE INITIATED IN THE HOSPITAL
10 SETTING, IF THAT'S WHAT YOU MEAN.
11 Q. CAN BE INITIATED. BUT TYPICALLY IT DOESN'T OCCUR IN THE
12 HOSPITAL SETTING, DOES IT, DOCTOR?
13 A. TYPICALLY, HOSPICE IS NOT PROVIDED IN THE HOSPITAL
14 SETTING. IT'S A MINORITY OF CASES THAT ARE.
15 Q. NOW, IN RESPECT TO END-OF-LIFE CARE, DOES THAT -- IS
16 THERE A DIFFERENTIATION BETWEEN HOSPICE AND END-OF-LIFE CARE?
17 A. THINK THIS WAS -- IF I'M REMEMBERING FROM OUR -- WE SORT
18 OF COVERED THIS GROUND WHEN I -- AND I THINK THAT WHAT I SAID
19 BEFORE STILL APPLIES IN THAT HOSPICE IS A SPECIFIC SUBSET OF
20 END-OF-LIFE CARE. AND ACTUALLY I CAN GIVE YOU THE EXACT
21 FIGURE IN VISTA CARE AND IT'S NOT TOO DIFFERENT THAN SOME OF
22 THE OTHER PROVIDERS OF HOSPICE CARE THAT HAVE DATA. ABOUT 15
23 PERCENT OF CARE IS DELIVERED IN INPATIENT TYPE OF A SETTING,
24 OR THAT IS TO SAY, ABOUT 15 PERCENT OF PATIENTS WHO ARE UNDER
25 CARE WILL ULTIMATELY SPEND SOME OF THEIR HOSPICE TIME IN AN
84
1 INPATIENT TYPE SETTING FOR ONE REASON OR ANOTHER.
2 Q. NOW, AN INPATIENT TYPE OF SETTING CAN BE A NURSING HOME
3 SETTING, IS THAT CORRECT?
4 A. I'M NOW REFERRING TO A HOSPITAL LIKE -- LIKE SETTING.
5 HOSPICE IN THE NURSING HOME IS SORT OF A SEPARATE CATEGORY.
6 Q. SO YOU'RE SAYING, IF I UNDERSTAND YOUR TESTIMONY, THAT
7 APPROXIMATELY 15 PERCENT OF THE PATIENTS THAT ARE HOSPICE
8 ELIGIBLE UNDER THE VISTA PROGRAM ARE IN A HOSPITAL SETTING?
9 A. YES. AND IN THAT THAT APPLIES TO MOST -- MOST OF THE
10 DATA AT LEAST COLLECTED BY THE NATIONAL ORGANIZATION THAT
11 COLLECTS THIS DATA THAT SOMEWHERE BETWEEN 10, 15, 17 PERCENT
12 OF PATIENTS WHO ARE HOSPICE, UNDER THE HOSPICE MEDICARE
13 BENEFIT, END UP SPENDING SOME AMOUNT OF THEIR -- OF THEIR
14 REMAINING LIFE IN A -- IN AN INPATIENT TYPE OF A -- OF A
15 SETTING. AND THAT'S DISTINCT FROM A NURSING HOME.
16 Q. ONE THING THAT -- AND I NEED TO CLARIFY THIS IN MY OWN
17 MIND BEFORE WE GET TOO FAR DOWN THE ROAD HERE. YOU TESTIFIED
18 RIGHT TOWARDS THE END OF YOUR TESTIMONY HERE THAT IN THE AGE
19 DISTRIBUTION OF 70 TO I THINK 90 OR A HUNDRED YEARS OF AGE,
20 FOR TREATMENT OF MODERATE TO SEVERE PAIN, THAT THERE WAS A
21 MEAN DAILY DOSE OF 200 MILLIGRAMS. IS THAT CORRECT?
22 A. THAT'S -- I BELIEVE THAT'S --
23 Q. OF MORPHINE SULFATE?
24 A. I THINK THAT'S A FAIR -- FAIR QUOTE, YES.
25 Q. NOW, WE TALK ABOUT DIFFERENT FORMS OF DELIVERY OF
85
1 MORPHINE, DO WE NOT?
2 A. THAT'S CORRECT.
3 Q. OKAY. AND IN RESPECT TO THE 200 MILLIGRAMS, IS THAT A
4 DOSAGE THAT'S SUPPLIED BY MOUTH OR IS THAT A COMBINATION OF
5 STUDIES THAT RELATED TO ALL FORMS OF DELIVERY?
6 A. LET ME SEE IF I CAN TRACK THAT DOWN FOR YOU.
7 AS I READ THROUGH THIS TABLE, IT DOES NOT SPECIFY THE --
8 THE ROUTE.
9 Q. OKAY. NOW, IT WOULD MAKE -- IT WOULD MAKE A DIFFERENCE
10 IF IT WAS BY MOUTH, WOULD IT NOT?
11 A. IF -- IF -- LET'S -- LET'S FOR SAKE OF ARGUMENT SAY THIS
12 IS -- THESE ARE ORAL DOSE EQUIVALENTS. IN THE PARENTERAL DOSE
13 EQUIVALENTS WOULD BE APPROXIMATELY A THIRD OF THAT, SO 200,
14 THAT WOULD BE ABOUT 65, 70 MILLIGRAMS PER 24 HOURS. ON THE
15 OTHER HAND, IF THESE ARE PARENTERAL DOSES, THEN THE ORAL
16 EQUIVALENT WOULD BE ABOUT 600 MILLIGRAMS.
17 Q. SO --
18 A. BUT I WOULD HAVE TO --
19 Q. -- LET ME SEE IF I UNDERSTAND THAT RIGHT. SO IF IT WAS
20 200 MILLIGRAMS ORALLY, THAT WOULD CONVERT TO APPROXIMATELY 65
21 MILLIGRAMS PARENTERALLY, IS --
22 A. THAT'S CORRECT.
23 Q. THAT WOULD BE -- IS THAT INTERVENOUS OR --
24 A. THAT COULD BE --
25 Q. -- OR IT COULD BE AN I.V.?
86
1 A. IT COULD BE INTRAVENOUS, SUBCUTANEOUS, OR INTRAMUSCULAR.
2 Q. OKAY. EXCUSE ME. BUT YOU DON'T HAVE THE FIGURES THERE
3 AS TO WHETHER OR NOT THAT'S A DOSAGE, RIGHT? WITH MILLIGRAMS
4 OF PILLS OR WITH MILLIGRAMS OF THE OTHER?
5 A. I'D HAVE TO PULL THE ORIGINAL PAPER TO HELP YOU WITH
6 THAT.
7 Q. OKAY. AND YOU DID INDICATE THAT WITH AGE, THERE IS MORE
8 SENSITIVITY TO THE -- TO THE MORPHINE SULFATE, IS THAT
9 CORRECT?
10 A. IN POPULATION STUDIES SUCH AS THIS, YES. THIS WAS TOTAL
11 OF --
12 Q. OKAY. ISN'T IT TRUE, DOCTOR, YOU ALSO INDICATED TO MISS
13 BARLOW AND MISS BOWMAN WHEN THEY MET WITH YOU THAT IN FACT
14 THERE HAD NOT BEEN AN AWFUL LOT OF LITERATURE DEVELOPED ABOUT
15 THE USE OF CERTAIN TYPES OF THE MORPHINE SULFATE IN THAT AGE
16 GROUP FROM 70 TO 100, IS THAT CORRECT?
17 A. THERE IS NOT A LOT OF LITERATURE, NO.
18 Q. OKAY. SO THERE HAVEN'T BEEN A LOT OF STUDIES DEALING
19 WITH THAT IN THAT PARTICULAR AGE GROUP AT THAT TIME, TIME OF
20 YOUR CONVERSATION BACK IN APRIL OF THIS YEAR.
21 A. NO. I THINK THAT'S A FAIR -- IT'S A FAIR STATEMENT TO
22 SAY THAT THE LITERATURE'S PRETTY LIMITED.
23 Q. AND IN FACT, I THINK YOU'VE CHARACTERIZED END-OF-LIFE
24 CARE AS BEING IN A VERY -- WELL, FOR LACK OF A BETTER WORD,
25 MAYBE MY -- MY WORDS, AND YOU CAN CORRECT ME IF I'M WRONG, AS
87
1 I UNDERSTAND IT, SORT OF -- IT WAS SORT OF IN A STATE WHERE
2 YOU HAVE YOUR TRADITIONAL VIEW AND YOU HAVE THE MODERN VIEW AS
3 TO THE END-OF-LIFE CARE, IS THAT CORRECT?
4 A. I GUESS YOU'D HAVE TO DEFINE WHAT YOU MEAN BY --
5 Q. OKAY.
6 A. I'M NOT SURE HOW TO ANSWER THE QUESTION.
7 Q. WELL, THESE CONCEPTS THAT YOU'VE TALKED ABOUT, DOUBLE
8 EFFECT, AND I THINK YOU REFERENCED TERMINAL SEDATION, YOU MAY
9 HAVE REFERENCED SOME OTHER CONCEPTS IN TERMS OF THE -- OF YOUR
10 TESTIMONY. I THINK YOU TALKED ABOUT EUTHANASIA AND THAT YOU
11 WERE AGAINST EUTHANASIA. I'M JUST SAYING, ISN'T THAT A
12 VERY -- I'M JUST TRYING TO SAY, IT'S -- IT'S SO VARIED IN
13 TERMS OF PHYSICIANS ON THAT -- IT'S CONTROVERSIAL, I GUESS IS
14 MY BEST -- BEST WAY OF PUTTING IT.
15 A. I WOULD AGREE THAT THERE IS CONTROVERSY, ESPECIALLY
16 AROUND THE LATTER WHERE YOU TALKED ABOUT EUTHANASIA AND
17 PHYSICIANS -- WELL, YOU DIDN'T MENTION IT, BUT ALLUDED TO
18 PHYSICIAN SUICIDE. CLEARLY THERE IS CONSIDERABLE CONTROVERSY
19 AROUND THAT.
20 Q. AND WHEN A PHYSICIAN IS DEALING WITH THESE TYPES OF -- OF
21 CARE, PARTICULARLY THE DOUBLE EFFECT DOCTRINE THAT WE'VE
22 TALKED ABOUT, AND I THINK YOU'VE REFERENCED THAT THAT'S
23 PROBABLY IN A -- A DOCTRINE THAT GOES ACROSS VARIOUS
24 DISCIPLINES OF THE MEDICAL PROFESSION, IS THAT ACCURATE?
25 A. WELL, THE DOCTRINE OF DOUBLE EFFECT IS ACTUALLY -- I MEAN
88
1 TALKING ABOUT CONTEMPORARY AND TRADITIONAL, IT'S A VERY OLD,
2 OLD DOCTRINE, IT GOES BACK CENTURIES, AND IT -- IT ESSENTIALLY
3 ALLOWS FOR US TO DO IN MEDICINE THAT WHICH WE DO. OTHERWISE,
4 WE'D BE PARALYZED.
5 Q. BUT IT'S BEEN A DEVELOPING AREA, PARTICULARLY IN THE AREA
6 OF END-OF-LIFE CARE, HAS IT NOT?
7 A. WELL, END-OF-LIFE CARE HAS BEEN IN DEVELOPMENT PROBABLY
8 IF YOU WANTED TO MAKE A -- A CUT POINT FOR THE SAKE OF
9 DISCUSSION ABOUT WHERE CHANGES STARTED TO BE SEEN IN -- IN
10 CONTEMPORARY AMERICAN MEDICINE, IT'S PROBABLY AROUND THE --
11 THE MID TO LATE SEVENTIES, BEGINNING OF THE EIGHTIES.
12 Q. AND -- AND IT'S -- BUT IT'S PROGRESSED SINCE THAT TIME.
13 HAVE THERE BEEN CHANGES IN END-OF-LIFE CARE THAT YOU'VE SEEN
14 OVER THE PAST FIVE YEARS?
15 A. THINK THAT MOSTLY WHAT WE'VE SEEN IS INCREASED DISCUSSION
16 AND RECOGNITION THAT THERE'S A SIGNIFICANT PROBLEM. I MEAN
17 MOST OF THE -- THE LITERATURE THAT EXISTS POINTS OUT AND SHOWS
18 WHERE THERE'S NECESSITY FOR IMPROVEMENT AND THE CREATION OF
19 GUIDELINES AND PRACTICES THAT COULD BE DESCRIBED AT LEAST AS
20 BEST PRACTICES BASED UPON THE KNOWLEDGE WE CURRENTLY HAVE.
21 AND THERE -- I WOULD SAY IT'S A FAIR STATEMENT THAT THERE IS
22 AN EFFORT TO INCREASE RESEARCH IN THIS AREA TO BE ABLE TO DO
23 BETTER AT WHAT WE DO AND ENHANCE EDUCATION AS WELL.
24 Q. WOULD IT BE A FAIR STATEMENT -- IT WOULD BE A FAIR
25 STATEMENT TO SAY, WOULD IT NOT, THAT THE DOCTOR HAS TO WALK A
89
1 RATHER FINE LINE WHEN HE DEALS WITH THE ISSUE OF DOUBLE EFFECT
2 DOCTRINE?
3 A. IT WOULD DEPEND UPON THE CIRCUMSTANCES.
4 Q. WELL, IN THESE PARTICULAR CIRCUMSTANCES WHERE YOU ARE
5 PROVIDING A PATIENT WITH A MEDICATION THAT HAS CERTAIN RISKS,
6 AND AMONG THOSE RISKS, DEATH IS ONE OF THOSE RISKS, WOULD YOU
7 AGREE THAT A PHYSICIAN IN EVALUATING THAT HAS TO BE CAREFUL
8 THAT HE MAKES SURE THAT THE TREATMENT IS COMMENSURATE WITH
9 THE -- WHATEVER HE'S TRYING TO TREAT RATHER THAN -- AND TO
10 MAKE SURE THAT HE'S NOT IN EFFECT CAUSING THE DEATH?
11 A. I WOULD SAY THAT, THAT THE -- CERTAINLY, THERE IS AN
12 OBLIGATION AND A DUTY TO MONITOR THERAPY AND EFFECTS OF
13 THERAPY.
14 Q. OKAY.
15 A. AND BOTH TO ASSURE GOALS OF THERAPY, THE POSITIVE GOALS,
16 AND IF AT POSSIBLE, TO -- TO PROVIDE THOSE SHORT OF CAUSING
17 HARM IF THAT IS INDEED POSSIBLE TO DO.
18 Q. OKAY. NOW, YOU PREVIOUSLY TESTIFIED THAT HOSPICE CARE
19 AND END-OF-LIFE CARE BECOMES A SEGMENT, IF I UNDERSTAND YOU
20 RIGHT, OF HOSPICE CARE, IS THAT CORRECT?
21 A. THE OPPOSITE.
22 Q. AND SO WHEN WE TALK ABOUT END-OF-LIFE CARE, I ASSUME
23 THERE'S SOME PRECIPITATING EVENT THAT OCCURS IN THE PATIENT'S
24 LIFE THAT WOULD INITIATE A NEW SET OF GOALS AND A NEW SET OF
25 REGIMEN AS FAR AS THE MEDICATIONS AND THOSE TYPES OF THINGS
90
1 GO, IS THAT CORRECT?
2 A. NOT NECESSARILY, IN THAT THE MAJORITY OF PATIENTS WHO
3 ACTUALLY DIE IN THIS COUNTRY AND DIE IN HOSPITAL FOR WHICH
4 THOSE ADMISSIONS WERE NOT ANTICIPATED TO LEAD TO OR TO BE --
5 THE DISCHARGE WAS NOT GONNA BE A -- TO THE MORGUE, IT WAS
6 GOING TO BE A LIVE DISCHARGE. AND SO I THINK IT'S FAIR TO SAY
7 THAT WE CONTINUE TO BE, FOR BETTER OR FOR WORSE, SURPRISED AND
8 UNANTICIPATING IN OUR -- IN -- WHEN PATIENTS DIE. AND THAT
9 COMES BACK TO THE DISCUSSION WE HAD EARLIER ABOUT PROGNOSIS
10 AND WILLINGNESS TO PROGNOSTICATE. AND ABILITY TO --
11 Q. I DON'T THINK YOU'RE UNDERSTANDING MY QUESTION.
12 A. OH, OKAY.
13 Q. MY QUESTION IS, IF A DOCTOR IS ENGAGED IN END-OF-LIFE
14 CARE, OBVIOUSLY THE GOAL OF THAT END-OF-LIFE CARE IS TO
15 ESSENTIALLY MAKE THIS PATIENT COMFORTABLE WHILE THE PROCESSES
16 OF DEATH OCCUR, IS THAT CORRECT? OR ONE OF THE GOALS COULD BE
17 THAT.
18 A. I'D SAY THAT -- I WOULD SAY THAT THAT'S A -- SHOULD BE A
19 DESIRABLE GOAL, BUT A LOT OF END-OF-LIFE CARE IS PRACTICED
20 WITHOUT EITHER DEFINING OR REACHING THAT GOAL.
21 Q. AND I GUESS THAT THAT POSES A QUESTION IN MY MIND, IF A
22 PHYSICIAN IS ENGAGED IN END-OF-LIFE CARE PRACTICE, WITHOUT
23 EVALUATING THAT GOAL, HOW DOES HE -- I MEAN, HOW DO YOU EVEN
24 ARRIVE AT THAT CONCLUSION UNDER THE CIRCUMSTANCES?
25 A. I THINK THAT GOES TO THE POINT THAT THERE IS NO
91
1 WELL-DEFINED STANDARD, THAT PAIN AS AN OUTCOME HAS NOT BEEN
2 ROUTINELY MEASURED IN HEALTH CARE SETTINGS. IT IS BEGINNING
3 TO BE. THE JOINT COMMISSION THIS YEAR HAS CREATED STANDARDS
4 WHICH REQUIRE THAT FOR ACCREDITATION IN ORDER TO ASSURE THAT.
5 BUT WITHOUT STANDARDS, IT ALLOWS FOR SUCH A WIDE VARIATION IN
6 WHAT GOALS ARE SET AND WHAT'S MONITORED, WHAT'S MEASURE, AND
7 WHAT'S PROVIDED.
8 Q. SO WITHOUT STANDARDS, CAN YOU REALLY SAY THAT A PHYSICIAN
9 PRACTICED A STANDARD OF CARE WITHIN THE CONFINES OF AN
10 END-OF-LIFE CARE? APPROPRIATE END-OF-LIFE CARE?
11 A. AGAIN, SEE, I THINK I CAN POINT YOU TO CERTAIN AREAS
12 WHERE THERE ARE STANDARDS THAT ARE DEFINED OR WHERE THERE ARE
13 BEST PRACTICES. BUT THAT'S DIFFERENT FROM WHAT YOU SEE IN THE
14 COMMUNITY AND WHAT PEOPLE DO.
15 Q. OKAY. YOU TESTIFIED THAT YOUR EVALUATION AS IT PERTAINS
16 TO THESE PATIENTS FELL WITHIN THE BOUNDS OF ETHICAL CARE BY
17 DR. WEITZEL, IS THAT CORRECT?
18 A. WITHIN THE BOUNDS OF ETHICAL CARE, YES.
19 Q. WITHIN THE BOUNDS OF ETHICAL CARE.
20 A. YES.
21 Q. YOU ALSO TESTIFIED, DID YOU NOT, THAT IT FELL WITHIN THE
22 BOUNDS OF -- OF END-OF-LIFE CARE.
23 A. WITHIN THE WAY END-OF-LIFE CARE IS PRACTICED.
24 Q. OKAY.
25 A. AND YES.
92
1 Q. IN THE STATE OF UTAH.
2 A. WELL, THE STATE OF UTAH AND THE UNITED STATES.
3 Q. OKAY. AND YOU DRAW THAT CONCLUSION AS TO THE WAY
4 END-OF-LIFE CARE IS PRACTICED IN THE STATE OF UTAH AND OTHER
5 STATES FROM WHAT EXPERIENCE, SIR?
6 A. FROM REVIEW COMMITTEES THAT I'VE SERVED ON IN THIS STATE,
7 FROM PARTICIPATING IN POLICY COMMITTEES, AND SUCH, FROM
8 EXPOSURE ON A NATIONAL BASIS TO COMMITTEE WORK, TO THE -- TO
9 THE NATIONAL ORGANIZATIONS TO --
10 Q. WHEN WE TALK ABOUT REVIEW COMMITTEES, YOUR EXPERIENCE ON
11 REVIEW COMMITTEES, IS THAT A PHYSICIANS' REVIEW BOARD?
12 A. WELL, ONE OF THEM WAS WITH A -- I THINK WE TALKED ABOUT
13 THIS LAST TIME, WE TALKED PEER REVIEW ORGANIZATION, THE
14 QUALITY REVIEW COMMITTEE, FROM WORKING WITH THE CURRENT --
15 THERE'S A CURRENT ROBERT WOOD JOHNSON GRANT TO THE STATE OF
16 UTAH THAT'S OVERSEEN BY ONE OF OUR LOCAL PHYSICIANS, JAY
17 JACOBSON, THAT IS PARTNERSHIP FOR IMPROVING END-OF-LIFE CARE
18 IN UTAH, AND A LOT OF INFORMATION AND PRACTICAL EXPERIENCE IS
19 DISCUSSED WITHIN THAT GROUP. AND THAT'S THE TYPE OF --
20 Q. WAS THAT OF RECENT ORIGIN, SIR?
21 A. IT CONTINUES, YES. IT'S -- WAS -- IT'S ABOUT A YEAR, I
22 BELIEVE A YEAR OR MORE OLD.
23 Q. OKAY. BEFORE THAT TIME, DID YOU SIT ON ANY REVIEW
24 COMMITTEES WHERE YOU ACTUALLY REVIEWED A DOCTOR'S END-OF-LIFE
25 CARE TREATMENT TO A PATIENT?
93
1 A. IN UTAH, PROBABLY THE QUALITY REVIEW FOR U-PRO, WHICH
2 BECAME HEALTH INSIGHT, WAS THE CHIEF OR THE MAIN EXPERIENCE
3 IN -- OUTSIDE OF UNIVERSITY HOSPITAL PRACTICE.
4 Q. WAS THAT BACK IN 1995?
5 A. WE'D HAVE TO REFER TO MY C.V. AND I COULD TELL YOU
6 SPECIFICALLY. MY -- IT'S -- MY SORT OF COMMITTEE WORK IS SORT
7 OF IN GEOLOGICAL HISTORY, YOU HAVE TO --
8 Q. WELL, YOU'VE TESTIFIED THAT THERE'S THOUSANDS, THERE'S
9 PROBABLY TEN THOUSANDS OF PEOPLE WHO ARE UNDERTREATED FOR PAIN
10 IN THE STATE OF UTAH. I'M JUST TRYING TO UNDERSTAND HOW YOU
11 COME BY THAT INFORMATION, DOCTOR.
12 A. OH, I STATED THAT THERE ARE AT A MINIMUM TEN THOUSAND
13 DEATHS IN THE STATE OF UTAH FROM ANTICIPATED DEATHS BY VIRTUE
14 OF CHRONIC -- CHRONIC DISEASE. WE DID ONE LITERATURE REVIEW,
15 ONE CHART REVIEW THROUGH UTAH PEER REVIEW ORGANIZATION,
16 ALTHOUGH IT MAY HAVE BEEN HEALTH INSIGHT BY THAT TIME, SO I --
17 DON'T QUOTE ME ON WHICH -- THE NAME OF THE ORGANIZATION. BUT
18 WHERE WE -- WE REVIEWED PROVISION OF PAIN SERVICES TO PATIENTS
19 WITH LIFE-LIMITING DISEASE, AND CAME UPON THAT CONCLUSION.
20 AND THERE ARE OTHER STUDIES THAT ARE ACTUALLY -- THAT I'M
21 AWARE OF THAT ARE ONGOING THROUGH BRIGHAM YOUNG UNIVERSITY
22 SCHOOL OF NURSING THAT ARE LOOKING AT THE SAME THING NOW.
23 Q. MY QUESTION --
24 A. BUT THERE ARE NATIONAL STUDIES THAT I'M INTIMATELY AWARE
25 OF AND THERE'S NOTHING THAT'S PARTICULARLY UNIQUE OR DIFFERENT
94
1 ABOUT MEDICATION TRAINING OR PRACTICE IN UTAH THAT DEPARTS,
2 AND THOSE LARGER STUDIES THAT BEGAN AND ENDED WITHIN THE
3 1990'S POINT TO THAT CONCLUSION.
4 Q. CAN YOU TELL ME, DOCTOR, HAVE YOU INDIVIDUALLY REVIEWED
5 PHYSICIANS FOR ADHERING TO CERTAIN STANDARDS OF PRACTICE AND
6 RELATED TO END-OF-LIFE CARE IN THE STATE OF UTAH? HAVE YOU
7 REVIEWED THEIR CASES?
8 A. NOT SINCE MY WORK WITH U-PRO, OR HEALTH INSIGHT, WHATEVER
9 IT WAS WHEN --
10 Q. AND HOW MANY CASES DID YOU DO THEN?
11 A. I COULDN'T TELL YOU.
12 Q. OKAY.
13 A. IT'S BEEN SEVERAL YEARS AGO.
14 Q. GOING BACK TO MY ORIGINAL QUESTION AS TO WITHIN THE
15 BOUNDS OF ETHICAL CARE, YOU -- YOU HAVE PREVIOUSLY TESTIFIED
16 THAT YOU MAY HAVE CHARACTERIZED DR. WEITZEL'S CARE AS
17 BUMBLING, D. MINUS, IS THAT CORRECT?
18 A. I THINK I TESTIFIED TO THAT, YES.
19 Q. OKAY. IS YOUR SAYING THAT HE WAS BUMBLING AND D. MINUS
20 CARE, IS THAT WITHIN THE BOUNDS OF ETHICAL CARE?
21 A. IT'S IN THE BOUNDS OF WHAT I WOULD CALL BEST PRACTICES
22 FOR -- FOR TREATMENT OF THESE TYPES OF PATIENTS UNDER THOSE
23 CIRCUMSTANCES. THAT WOULD BE THE -- IF HE WERE A STUDENT OF
24 MINE, THOSE ARE THE GRADES I WOULD GIVE HIM.
25 Q. THOSE ARE THE GRADES YOU WOULD GIVE HIM IS D. MINUS.
95
1 A. I WOULD SEND HIM FOR REMEDIAL TRAINING.
2 Q. I SEE.
3 A. AS I WOULD MOST PHYSICIANS IN THIS AREA, ACTUALLY.
4 Q. MY OTHER QUESTION RELATES, DOCTOR, AND I -- MAYBE I'M
5 STRUGGLING HERE TRYING TO GET AT THIS, BUT THERE COMES A
6 TIME -- ONCE A PATIENT IS DETERMINED TO BE HOSPICE ELIGIBLE,
7 THERE COMES A TIME WHEN AN EVENT TAKES PLACE WHERE THAT
8 TREATMENT CHANGES FROM WHAT IT IS ORIGINALLY OR MAYBE IT'S
9 MODIFIED GRADUALLY AS IT GOES ON, AS THIS PATIENT
10 DETERIORATES, WHERE YOU ENGAGE IN -- IN CERTAIN COMFORT CARE
11 OR END-OF-LIFE CARE MEASURES, IS THAT CORRECT.
12 A. THAT'S CORRECT. AND LET ME -- ACTUALLY, I WANTED TO
13 FINISH MY LAST STATEMENT. I WASN'T COMPLETELY FINISHED.
14 BECAUSE THERE'S A GREAT RISK OF BEING PERCEIVED AS ARROGANT IN
15 MAKING SUCH A STATEMENT ABOUT REMEDIAL TRAINING OTHER
16 PHYSICIANS. AND THAT'S -- THOSE AREN'T MY CONCLUSIONS. THOSE
17 ARE THE CONCLUSIONS OF THE NATIONAL ACADEMY OF SCIENCES
18 INSTITUTE OF MEDICINE REPORT AND THE AMERICAN MEDICAL
19 ASSOCIATION IN CREATING THE -- EDUCATING PHYSICIANS IN
20 END-OF-LIFE CARE PROGRAM. IN FACT, WHAT HAS BEEN DONE
21 NATIONWIDE IS CREATED A REMEDIAL PROGRAM FOR ALL PHYSICIANS
22 EXACTLY WITH THIS IN MIND. SO, YOU KNOW, I DON'T WANNA STAND
23 HERE AND -- AND -- OR SIT HERE AND, YOU KNOW, PRETEND THAT
24 THIS IS MY SORT OF UNIQUE POSTURE AND BE ACCUSED OF BEING
25 ARROGANT.
96
1 NOW, IN TERMS OF YOUR PREV -- YOUR LAST QUESTION, YES,
2 THERE IS A TIME, IF RECOGNIZED, THAT LIFE EXPECTANCY IS
3 LIMITED. AND THAT THERE IS -- THEY'RE NOT CURABLE DISEASE
4 PROCESSES. THAT IN FACT, THERE IS ETHICAL RESPONSIBILITIES
5 FOR TREATING THOSE PATIENTS IN A PRESCRIPTIVE FASHION TOWARDS
6 RELIEVING DISTRESSING SYMPTOMS AND PROVIDING SOCIAL SUPPORT,
7 ET CETERA.
8 Q. AND WHEN THAT TIME OCCURS, I THINK YOUR TESTIMONY IS,
9 THERE'S A -- THERE'S A PROGNOSTICATION PROCESS THAT MUST GO ON
10 TO EVALUATE AND DETERMINE JUST WHAT THAT -- WHAT THE GOALS OF
11 THAT CARE SHOULD BE, IS THAT CORRECT?
12 A. WELL, I THINK YOUR STATEMENT IS ACTUALLY MORE
13 APPROPRIATELY GENERALIZED TO STATE THAT ANY TIME WHEN A
14 CHRONIC DISEASE PROCESS IS INITIALLY DIAGNOSED THROUGHOUT --
15 THROUGHOUT THE VARIOUS PHASES OF THAT DISEASE, PROGNOSTICATION
16 PROCESSES SHOULD BE APPLIED SO THAT THE BEST CARE PATH AND
17 BEST TREATMENT PLAN CAN BE -- CAN BE APPLIED.
18 Q. AND IN THAT -- IN RESPECT TO THAT PROCESS THAT GOES ON,
19 THE DOCTOR JUST PLAYS ONE PART OF THAT, DOES HE NOT? THERE'S
20 OTHER -- THERE'S OTHER COMPONENTS TO THAT PROCESS, ARE THERE
21 NOT?
22 A. I'M SORRY, I'M NOT FOLLOWING YOU.
23 Q. WELL, AREN'T THERE OTHER PEOPLE WHO WOULD BE INVOLVED IN
24 THE DECISION MAKING PROCESS THAT GOES ON AND THE
25 PROGNOSTICATION ASPECTS, AND THE IMPLEMENTATION OF A CARE
97
1 PLAN?
2 A. I MEAN GENERALLY SPEAKING FROM WHAT I -- FROM WHAT I
3 KNOW, THE PHYSICIANS ARE THE ONLY ONES CURRENTLY LICENSED TO
4 PRACTICE MEDICINE IN A WAY THAT WOULD ALLOW THEM TO -- TO
5 PROGNOSTICATE.
6 Q. OKAY. IN RESPECT TO THE TREATMENT OF THE PATIENT,
7 THOUGH, THERE ARE OTHER PEOPLE INVOLVED IN THAT PROCESS, IS
8 THAT CORRECT?
9 A. IT DEPENDS ON THE CARE SETTING. IF IT'S A TEAM CARE
10 SETTING, YES, THE OTHER TEAM MEMBERS WOULD BE -- WOULD BE
11 INVOLVED. IF IT'S A RURAL SETTING WHERE THERE'S ONE FAMILY
12 DOC AND THAT'S IT, THEN THAT'S PROBABLY THE ONLY PERSON WOULD
13 BE INVOLVED. IT'S -- AGAIN, THERE'S A WIDE DEGREE OF VARIANCE
14 IN HOW -- IN HOSPICE, AS WE TALKED ABOUT, THAT AGAIN IS A
15 SUBSET THAT HAS A SPECIFIC SORT OF RULES OF ENGAGEMENT.
16 Q. AS I RECALL YOUR TESTIMONY WHEN WE WERE TALKING ABOUT THE
17 DOUBLE EFFECT DOCTRINE, YOU TALKED ABOUT AN INTENT TO TREAT, A
18 FORESEEABLE POTENTIAL HARM WOULD BE NECESSARY, AND THEN YOU
19 TALKED ABOUT A REASONABLE ATTEMPT TO GARNER INFORMED CONSENT.
20 AND BY THAT, AS I UNDERSTAND IT, THERE WOULD BE EFFORTS TO --
21 IF THE INDIVIDUAL WAS NOT CAPABLE OF MAKING THEIR OWN CHOICE,
22 IT WOULD BE TO TALK WITH FAMILY MEMBERS OR A GUARDIAN OR
23 WHOEVER, IS THAT CORRECT?
24 A. YES, THAT'S -- THAT'S --
25 Q. AND I GUESS THE QUESTION I HAVE FOR YOU, YOU TALKED ABOUT
98
1 THE IMPLEMENTATION OF THOSE PROCEDURES. IF AN INDIVIDUAL HAS
2 A LIFE EXPECTANCY OF LESS THAN SIX MONTHS, DOES THAT MEAN THAT
3 YOU'RE GOING TO IMPLEMENT END-OF-LIFE CARE PROCEDURES AT THAT
4 TIME?
5 A. YOU WOULD HAVE TO DEFINE WHAT YOU MEAN BY END-OF-LIFE
6 CARE PROCEDURES. THERE'S A WIDE ARRAY OF WHAT THAT MIGHT
7 MEAN.
8 Q. WELL, WHAT YOU'VE SEEN IN THIS PARTICULAR CASE WAS THE
9 IMPLEMENTATION PRIMARILY OF A REGIMEN OF MEDICATIONS TO TREAT
10 PAIN, DID YOU NOT?
11 A. YOU KNOW, THAT WOULD -- THAT'S -- THOSE ARE SPECIFIC
12 TREATMENTS TO ADDRESS SYMPTOMS THAT ARE IN EVIDENCE. SO
13 THAT'S A LITTLE DIFFERENT THAN INSTITUTING SOME KIND OF
14 END-OF-LIFE CARE PROTOCOL.
15 Q. WELL, WOULD YOU AGREE THAT IN THE CASE OF PATIENT ELLEN
16 ANDERSON, THAT WAS NOT AN END-OF-LIFE CARE CASE?
17 A. I THINK WHAT ADEQUATELY CHARACTERIZES END-OF-LIFE CARE IS
18 THAT CARE THAT IS RENDERED IN THE LAST PHASE OF A PATIENT'S
19 LIFE.
20 Q. OKAY.
21 A. AND I -- I'VE TESTIFIED THAT ELLEN ANDERSON, TO THE BEST
22 OF MY ABILITY TO JUDGE FROM THE MEDICAL HISTORY AND FACTS IN
23 EVIDENCE, WAS IN THE LAST PHASE OF HER LIFE. AND THEREFORE,
24 BY SORT OF LOGIC, WHAT WAS ALL -- ALL CARE THAT WAS PROVIDED
25 WAS END-OF-LIFE CARE.
99
1 Q. I SEE.
2 A. NOW, HOW EFFECTIVE OR ADEQUATE THAT IS, IT CAN ONLY BE
3 JUDGED DURING ONGOING MONITORING OR SORT OF A POST HOC
4 ANALYSIS LIKE WE'RE NOW DOING.
5 Q. SO IF I UNDERSTAND YOUR CHARACTERIZATION IN EACH ONE OF
6 THESE PATIENTS, REGARDLESS OF WHAT -- WHETHER OR NOT THE
7 DOCTOR HAD MADE A PROGNOSTICATION RELATIVE TO THEIR SITUATION,
8 IF HE'S PROVIDING CARE AND THEY DIE DURING THAT CARE, THAT IS
9 END-OF-LIFE CARE?
10 A. WELL, WHAT I'M SAYING IS THAT IF YOU EVALUATE THOSE
11 DETERMINANTS, WHICH MORE LIKELY THAN NOT SUGGEST THAT THE
12 PATIENT'S LIFE EXPECTANCY IS LIMITED, AND CALL THAT THE LAST
13 PHASE OF LIVE, AND BY OPERATIONAL DEFINITION, THE LAST SIX
14 MONTHS OF THEIR LIFE, THEN THAT'S SORT OF THE CONSTRUCT OF
15 END-OF-LIFE CARE. BUT YOU COULD SIT THROUGH -- I'VE DONE THIS
16 EXERCISE -- SIT THROUGH A NUMBER OF PEOPLE WHO TAKE CARE OF
17 PATIENTS WHO HAVE HOURS TO DAYS TO WEEKS TO YEARS TO LIVE AND
18 SAY, WHEN DO YOU THINK THE LAST PHASE OF LIFE BEGINS OR ENDS
19 AND WHAT IS END-OF-LIFE CARE, AND YOU'LL END UP WITH AS MANY
20 DEFINITIONS AS ARE PEOPLE THERE. AND SO THE ONLY CURRENT
21 OPERATIONAL DEFINITION, COMING BACK TO THE EARLIER STATEMENTS,
22 IS THAT PROVIDED BY THE HOSPICE MEDICARE BENEFIT. THAT'S THE
23 ONLY SORT OF UNIFORMLY ACCEPTED OPERANT CONDITION --
24 OPERATIONAL DEFINITION THAT EXISTS CURRENTLY.
25 Q. TELL ME SOMETHING, DOCTOR. IS THE DETERMINATION OF
100
1 HOSPICE ONE -- HOSPICE CARE, IS THAT DIFFICULT TO MAKE?
2 HOSPICE ELIGIBLE?
3 A. IF ONE IS SPECIFICALLY LOOKING, IT IS NOT -- IT IS NOT A
4 TERRIBLY DIFFICULT DETERMINATION TO MAKE. IT SEEMS -- IT
5 SEEMS THAT THE DIFFICULTY COMES IN A WILLINGNESS TO ADDRESS
6 THE ISSUE AT ALL, TO EVEN RAISE THE QUESTION AS WHETHER THIS
7 PATIENT MAY BE ELIGIBLE FOR HOSPICE.
8 Q. YOU'RE NOT A PSYCHIATRIST BY PROFESSION.
9 A. NO. WE'VE ESTABLISHED THAT.
10 Q. YOU DON'T HOLD OUT YOURSELF IN ANY EXPERTISE AS A
11 PSYCHIATRIST, DO YOU?
12 A. AS A PSYCHIA -- AS A BOARD ELIGIBLE PSYCH -- NO, I'M NOT
13 BOARD ELIGIBLE IN PSYCHIATRY.
14 Q. WELL, DO YOU HOLD ANY -- DO YOU HOLD YOURSELF OUT AS AN
15 EXPERT IN THAT AREA?
16 A. WELL, THE PROVISION OF PAIN FELLOWSHIP TRAINING INCLUDES
17 SIGNIFICANT WORK IN THE AREA OF BEHAVIORAL AND COGNITIVE
18 PSYCHOLOGY AND PSYCHIATRY.
19 Q. OKAY.
20 A. IT'S PART OF THE PROCESS OF PAIN -- PAIN MANAGEMENT
21 FELLOWSHIP --
22 Q. SO --
23 A. -- BUT IT DOESN'T PREPARE ONE TO TAKE ONE'S BOARDS,
24 THOUGH, IN PSYCHIATRY.
25 Q. IN THE COURSE OF YOUR REVIEW, YOU DID NOT FAMILIARIZE
101
1 YOURSELF WITH THE STANDARDS FOR ADMISSION TO THE GEROPSYCH,
2 UNIT, DID YOU NOT?
3 A. NO, I --
4 Q. -- OR DID YOU?
5 A. NO, I DID NOT.
6 Q. WOULD IT SURPRISE YOU TO KNOW THAT IF THE PATIENT WAS
7 DETERMINED TO BE TERMINAL IN THE HOSPICE SETTING, THEY WOULD
8 NOT BE ELIGIBLE FOR CARE IN THE GEROPSYCH UNIT?
9 A. ARE YOU STATING -- I MEAN LET ME ASK A QUESTION BEC --
10 QUESTION. ARE YOU STATING THAT IT'S --
11 Q. WOULD IT SURPRISE YOU TO KNOW THAT?
12 A. I THINK I'VE ALREADY STATED THAT NOTHING ANYMORE
13 SURPRISES ME, SIR, BUT --
14 Q. OKAY.
15 A. -- BUT IF YOU --
16 Q. NOW, IN RESPECT TO THAT QUESTION, SIR, ARE YOU FAMILIAR
17 WITH ANY OTHER GEROPSYCH UNITS ACROSS THIS NATION?
18 A. AM I FAMILIAR WITH OTHER GEROPSYCH UNITS?
19 Q. YES, ARE YOU FAMILIAR WITH THEIR OPERATION?
20 A. TO ONE DEGREE OR ANOTHER. I'VE VISITED MANY, MANY SUCH
21 UNITS ACROSS THE COUNTRY.
22 Q. ARE YOU FAMILIAR WITH WHAT THE PURPOSE OF THE GEROPSYCH
23 UNIT WAS THAT WAS BEING OPERATED AT THE DAVIS NORTH HOSPITAL
24 OR THE DAVIS HOSPITAL DURING 1995 AND 1996?
25 A. I HAVE NOT READ THEIR BYLAWS OR THEIR POLICIES AND
102
1 PROCEDURES, SO I CANNOT ANSWER THAT QUESTION.
2 Q. DO YOU HAVE ANY IDEA OF WHY THEY WERE BEING SENT TO A
3 GEROPSYCH UNIT? THESE FIVE PATIENTS?
4 A. I CAN GIVE YOU MY INTERPRETATION FROM THE MEDICAL RECORDS
5 AS TO WHY --
6 Q. OKAY. WHAT IS THAT INTERPRETATION?
7 A. IT'S THAT THESE PATIENTS WERE NO LONGER ABLE TO BE
8 MANAGED OR CARED FOR IN A WAY THAT WAS COMMENSURATE WITH THE
9 CAPABILITIES OF THE LONG-TERM CARE FACILITIES WHERE THEY WERE
10 RESIDING. AND THEY WERE PRI -- THEY WERE PRIMARILY PRESENTING
11 WITH -- WITH PSYCHIATRIC OR BEHAVIORAL SYMPTOMATOLOGY. AND SO
12 THIS WAS A LOGICAL PLACE FOR THEM TO BE REFERRED. AT LEAST
13 THAT WAS THE LOGIC THAT SEEMED TO PREVAIL.
14 Q. OKAY. BUT IN RESPECT TO THE GEROPSYCH UNIT, THE PURPOSE
15 THEN WAS TO TREAT THE PATIENT FOR THE SYMPTOMS OF THE ACTING
16 OUT OR WHATEVER, AND TO STABILIZE THEIR SITUATION. WOULD THAT
17 BE A FAIR STATEMENT?
18 A. I DON'T THINK THAT'S A FAIR STATEMENT, NO. IN THAT -- IN
19 THAT WHEN A PHYSICIAN RECEIVES A PATIENT, IT'S THEIR
20 OBLIGATION TO TREAT THE PATIENT TO THE BEST OF THEIR
21 CAPABILITIES. FOR INSTANCE, WHEN I'M SENT A PATIENT TO TREAT
22 FOR THE CHRONIC PAIN CONDITION, IT IS NOT INFREQUENT THAT THE
23 PATIENT DOES HAVE A CO-MORBIDITY OF SEVERE DEPRESSION. AND WE
24 GO AHEAD AND TREAT THEIR DEPRESSION AS WELL BECAUSE IT'S A
25 CONTRIBUTING FACTOR, ALTHOUGH THE PHYSICIAN THAT REFERRED THAT
103
1 PATIENT MIGHT SAY, YOU KNOW, WE'RE SENDING YOU IN THERE FOR A
2 NERVE BLOCK FOR SOMETHING.
3 Q. WELL, WOULDN'T YOU EXPECT IN A HOSPITAL SETTING WHERE A
4 GEROPSYCH UNIT IS FUNCTIONING IN A HOSPITAL, THAT IF PHYSICAL
5 PROBLEMS PRESENTED THEMSELVES OR OTHER PROBLEMS OF A MEDICAL
6 NATURE, THAT THOSE WOULD BE HANDLED BY OTHER INDIVIDUALS
7 WITHIN THE HOSPITAL SETTING?
8 A. ACTUALLY, NOT NECESSARILY. I'VE VISITED SUCH FACILITIES
9 AND ACTUALLY -- THE ONES THAT COME TO MIND ARE MOSTLY AT
10 VETERANS' ADMINISTRATION HOSPITALS WHERE, FOR LACK OF A BETTER
11 PLACE OR FACILITY, THESE PATIENTS ARE REFERRED TO THOSE
12 FACILITIES. IT IS FOUND THAT IN FACT THEY HAVE LIFE-LIMITING
13 CONDITIONS. AND RATHER THAN INTERRUPT THE CONTINUITY OF THEIR
14 CARE, THEY'RE PROVIDED WITH, AS WE SORT OF -- LACK OF BETTER
15 PHRASEOLOGY WE'VE COME TO, BEEN PROVIDED WITH END-OF-LIFE CARE
16 IN THAT SETTING. AND THERE'S A GREAT ARGUMENT, IN FACT --
17 Q. LET ME ASK --
18 A. -- FOR NOT DIS -- FOR NOT INTERRUPTING, YOU KNOW -- YOU
19 KNOW, OP -- WHAT'S THE WORD I'M LOOK -- CONTINUITY OF -- OF
20 CARE SETTINGS.
21 Q. SO IN A GEROPSYCH UNIT, IT WOULD BE YOUR TESTIMONY THAT
22 THEY WOULD NOT NECESSARILY BE THERE JUST TO BE ASSISTED IN
23 THEIR PSYCHOLOGICAL PROBLEMS?
24 A. NOT IF THERE WERE SUPERVENING PROBLEMS. I -- MY
25 CRITICISM, AS YOU'VE HEARD ME SAY, IS THAT -- IS THAT IF THERE
104
1 ARE OTHER PROBLEMS, EXPERTISE SHOULD BE BROUGHT IN. AND FOR
2 INSTANCE IN THIS CASE, THERE WAS AN O.B./G.Y.N. SPECIALIST
3 BROUGHT IN TO LOOK AT THIS PATIENT'S FISTULA. I WOULD -- I
4 GUESS I'D CHALLENGE AND SAY, WAS IT INAPPROPRIATE TO HAVE THIS
5 LADY'S VAGINA EXAMINED IN A PSYCHIATRIC UNIT. YOU KNOW, IT
6 WASN'T ANYWHERE NEAR HER HEAD. BUT IT WAS APPROPRIATE TO
7 DO --
8 Q. AND THE INSTANCE YOU'RE TALKING ABOUT, YOU FELT THAT WAS
9 APPROPRIATE TO CALL IN A CONSULT.
10 A. YES, I DID.
11 Q. OKAY. IN THE OTHER INSTANCES WHEN THERE IS A
12 DETERMINATION THAT THE INDIVIDUAL IS ACTUALLY IN THE DYING
13 PROCESS, DID YOU SEE IN THE RECORDS WHERE OTHER PHYSICIANS
14 WERE CONSULTED TO -- TO MAKE THAT SAME CONCLUSION?
15 A. I THINK I -- I'VE GIVEN TESTIMONY TO THAT IT WOULD HAVE
16 BEEN VERY APPROPRIATE TO BRING IN CONSULTATION --
17 Q. OKAY.
18 A. -- TO AID IN THIS --
19 Q. SO YOU FOUND THAT WAS PART OF YOUR D. MINUS EFFORT HERE?
20 A. YES, SIR.
21 Q. OKAY. AND YOU ALSO FOUND AS PART OF YOUR D. MINUS EFFORT
22 THAT THERE WAS NOT SUFFICIENT CONSULT WITH THE FAMILY MEMBERS?
23 A. IN SOME CASES. IN OTHERS THERE SEEMED TO BE QUITE A BIT
24 OF DISCUSSION WITH FAMILIES. YOU HAVE TO AGAIN REVIEW 'EM
25 CASE BY CASE FOR ME TO BE ABLE TO --
105
1 Q. AND YOU WERE REVIEWING THAT FROM THE RECORDS THAT YOU
2 HAD.
3 A. YES.
4 Q. YOU HAVE NO INFORMATION THAT WAS GIVEN TO YOU FROM THE
5 HOS -- OR FROM THE PRIMARY PROVIDERS, FROM THE CARE CENTERS,
6 FROM THE NURSING HOMES, AND THOSE TYPES OF THINGS, IS THAT
7 CORRECT?
8 A. IF YOU'RE ALLOWED TO YAWN, AM I ALLOWED TO YAWN?
9 Q. YES.
10 THE COURT: OKAY. WE'LL ALL YAWN ONCE.
11 THE WITNESS: EXCUSE ME. YOU'LL HAVE TO ANSWER
12 THAT -- ASK THAT QUESTION AGAIN. SORRY. I GUESS WE'RE ALL
13 FATIGUING HERE, BUT --
14BY MR. WILSON:
15 Q. YOU DIDN'T HAVE ANY OF THOSE RECORDS.
16 A. FROM THE --
17 Q. NURSING --
18 A. -- NURSING --
19 Q. -- HOMES.
20 A. NO. I THINK WE ESTABLISHED THAT --
21 Q. YOU DIDN'T HAVE ANY RECORDS FROM THE OTHER HOSPITALS THAT
22 WOULD HAVE TREATED THESE PATIENTS FOR VARIOUS UNDERLYING
23 DISEASE PROCESSES, DID YOU?
24 A. NO. JUST SUMMARIES FROM THE PREVIOUS --
25 Q. AND YOU DIDN'T HAVE THE RECORDS FROM THE PRIMARY CARE
106
1 PHYSICIANS, DID YOU?
2 A. NO. AGAIN, JUST MEDICAL SUMMARIES.
3 Q. AND YOU DON'T THINK THAT ANY OF THOSE PARTICULAR RECORDS
4 WOULD HAVE BEEN OF IMPORTANCE TO YOU IN MAKING YOUR -- FORMING
5 YOUR OPINIONS RELATIVE TO THESE MATTERS?
6 A. I'M ONLY SMILING BECAUSE WE -- THIS IS DEJA VU ALL OVER
7 AGAIN. BUT I GUESS I'M COMPELLED TO ANSWER THE QUESTIONS AS
8 THEY COME TO ME. AS I SAID BEFORE, AND I CONTINUE TO STATE,
9 AND I'VE SAID THIS TO MR. STIRBA AND ANYBODY ELSE WHO'S ASKED
10 ME, IS THAT IN ORDER TO FORMULATE A COMPREHENSIVE OPINION
11 ABOUT THE QUALITY OF CARE DELIVERED IN A MEDICAL CONTEXT TO
12 THESE PATIENTS, IT WOULD BE EXTRAORDINARILY HELPFUL TO
13 DETERMINE WHAT THE PREVIOUS TREATING PHYSICIANS' INTERACTIONS
14 HAVE BEEN WITH -- IN COUNSELLING THE FAMILIES ABOUT THE
15 INEVITABLE PROGRESSION OF THESE DISEASE PROCESSES, AND WHAT
16 TYPE OF ADVANCE DIRECTIVES SHOULD BE PUT INTO PLACE IN ORDER
17 TO PREVENT CRISES AND TO MITIGATE AGAINST SUFFERING. AND
18 ESPECIALLY, AND ESPECIALLY, AND I DON'T KNOW, MAYBE IT'LL
19 SURPRISE YOU TO HEAR THIS, THE UNETHICAL, THE UNETHICAL AND
20 CLEARLY DUTY-BOUND AS WE ARE AS PHYSICIANS NOT TO
21 UNNECESSARILY PROLONG THE DYING PROCESS IN THESE TYPES OF
22 PATIENTS. AND THAT IS A PROSCRIPTION IN THE MEDICAL CODE OF
23 ETHICS WHICH I CAN QUOTE FOR YOU IF YOU'D LIKE. SO IT WOULD
24 HAVE BEEN VERY HELPFUL TO KNOW THE DETAILS OF THOSE AND WHY
25 THESE PATIENTS ARRIVED IN SORT OF THE CIRCUMSTANCES THEY DID.
107
1 THAT'S AGAIN THROUGH A MEDICAL ANALYSIS THAT I THINK POST HOC
2 WOULD BE USEFUL IN ORDER TO IMPROVE THESE TYPES OF CARE.
3 Q. ARE YOU FAMILIAR WITH THE TERM DELIRIUM?
4 A. YES, I AM.
5 Q. IS AND WHAT IS DELIRIUM, DOCTOR?
6 A. DELIRIUM IS USUALLY REFERENCE TO AN ACUTE ALTERED MENTAL
7 STATUS.
8 Q. OKAY. DID YOU FORM ANY OPINION AS IT RELATED TO THESE
9 PATIENTS THAT THEY WERE SUFFERING FROM DELIRIUM?
10 A. I THINK THAT THE ATTRIBUTION OF THE TERM DELIRIUM COULD
11 BE APPLIED TO THEM, BUT IN THE CONTEXT OF PROGRESSIVE
12 DEMENTIA, DELIRIUM IS NOT NECESSARILY ALWAYS -- ALWAYS
13 APPLIED. IT'S MORE COMMONLY APPLIED IN PATIENTS WHO HAVE
14 PROGRESSIVE MEDICAL ILLNESSES, AND THEN DEVELOP ALTERED MENTAL
15 STATUS.
16 Q. IS DELIRIUM A TREATABLE DISORDER?
17 A. DEPENDS UPON THE CAUSE.
18 Q. IN THESE PATIENTS, IF THEY WERE SUFFERING FROM DELIRIUM,
19 WOULD IT BE A TREATABLE DISORDER?
20 A. CERTAINLY PROGRESSIVE DEMENTIA CAN HAVE OVERLAYING
21 DELIRIUM. IT CAN BE DRUG INDUCED, CAN BE DISEASE INDUCED, CAN
22 BE ENVIRONMENTALLY INDUCED, CAN BE PAIN INDUCED. AGAIN, A
23 LONG DIFFERENTIAL DIAGNOSIS. AND THE TREATMENT OR THE
24 REVERSAL OF THAT IS DEPENDENT UPON THE CAUSE AND THE
25 PROGRESSION OF THE PATIENT'S UNDERLYING CONDITION.
108
1 Q. THIS IS SOMETHING I ASSUME THAT --
2 A. LET ME -- I'M -- FINISH THE THOUGHT. THE PRIMARY
3 MODALITY OF TREATING DELIRIUM IN THESE TYPES OF PATIENTS
4 ACTUALLY IS WITH ANTIPSYCHOTIC DRUGS AND --
5 Q. OKAY. NOW, YOU HAVEN'T -- AGAIN, YOU HAVEN'T PRACTICED
6 IN A PSYCHIATRIC SETTING, NOR HAVE YOU PRACTICED IN A
7 GEROPSYCH UNIT, IS THAT CORRECT?
8 A. THAT'S NOT CORRECT.
9 Q. HAVE YOU PRACTICED IN A GEROPSYCH UNIT?
10 A. I'VE BEEN -- I'VE BEEN A CONSULTING PHYSICIAN IN
11 GEROPSYCH UNITS, YES.
12 Q. I SEE. AND WHAT GEROPSYCH UNIT WAS THAT, SIR?
13 A. IN THE -- IN THE VETERANS' ADMINISTRATION HOSPITAL. OR
14 IT WAS THE UNIT WHERE GEROPSYCH PRACTICES WERE IN PLACE. I'M
15 NOT SURE IF THE --
16 Q. WAS IT A GEROPSYCH UNIT?
17 A. IT WAS FOR ALL INTENTS AND PURPOSES A GEROPSYCH UNIT.
18 Q. I SEE.
19 A. I'M NOT SURE IF THE NOMENCLATURE WAS THE EXACT SAME, BUT
20 THE PATIENT POPULATION AND THE PURPOSE WAS THE SAME AS
21 DESCRIBED.
22 Q. IN RESPECT TO EACH OF THESE INDIVIDUAL PATIENTS, YOU'VE
23 GONE THROUGH AND LISTED CERTAIN CO-MORBIDITY FINDINGS ALONG
24 WITH CERTAIN DISEASE PROCESSES THAT YOU IDENTIFIED FROM THE
25 MEDICAL RECORDS IN EACH PATIENT, IS THAT CORRECT?
109
1 A. YES.
2 Q. AND IN RESPECT TO THOSE PARTICULAR REFERENCES AS TO EACH
3 ONE OF THESE PATIENTS, IS IT YOUR DETERMINATION THAT THAT WAS
4 PART OF YOUR DETERMINATION THAT THEY WERE TERMINAL UPON
5 ADMISSION?
6 A. THE CO-MORBIDITIES CONTRIBUTED TO MY DETERMINATION, YES.
7 Q. OKAY. AND BY MY UNDERSTANDING OF THAT, AGAIN, IT MEANS
8 THAT THEY HAD A LIFE EXPECTANCY OF LESS THAN SIX MONTHS.
9 A. YES, THAT'S THE CRITERIA THAT I'M -- I'M USING, YES.
10 Q. YOU'VE TESTIFIED AS TO THE TERMINAL CONDITION AS YOU
11 DEFINED IT THAT IS USED IN THE ANESTHESIOLOGY CONTEXT AS YOU
12 REVIEWED DR. HARE'S STATEMENT AND YOU SAID THAT YOU THINK HE
13 WAS USING A DIFFERENT DEFINITION IN THE CONTEXT OF HIS
14 TESTIMONY, IS THAT CORRECT?
15 A. WELL, SINCE HE SPECIFICALLY TALKED TO HOURS TO DAYS, OR A
16 SHORT TERM PERIOD OF TIME, THAT -- THAT'S I THINK A LOGICAL
17 CONCLUSION. HE DID NOT REFER TO -- TO WEEKS TO MONTHS.
18 Q. OKAY. TO YOUR RECOLLECTION, WAS HE EVER ASKED WHETHER
19 THESE PATIENTS UPON ENTERING THE GEROPSYCH UNIT, WHETHER OR
20 NOT THEY WERE IN A MEDICALLY STABLE CONDITION?
21 A. WAS HE ASKED THAT?
22 Q. UH-HUH.
23 A. I THINK WE COVERED --
24 Q. DID YOU -- DID YOU REVIEW THAT IN THE MEDICAL RECORDS OR
25 IN THE TESTIMONY THAT YOU APPARENTLY OBSERVED?
110
1 A. WELL, WE REVIEWED ONE QUOTATION FROM HIS TESTIMONY THAT
2 REFERRED TO THOSE WORDS.
3 Q. OKAY. NOW, YOU WENT OVER HIS FULL TESTIMONY AS IT WAS
4 PROVIDED TO YOU?
5 A. WHAT I WAS -- I WAS PROVIDED WAS VOLUME 1 PAGE 15 THROUGH
6 VOLUME 1 PAGE 87 AND THAT'S THE SUM OF WHAT I REVIEWED OF DR.
7 HARE'S TESTIMONY.
8 Q. SO YOU REVIEWED ESSENTIALLY 72 PAGES OF TRANSCRIPT
9 SUPPOSEDLY.
10 A. I THINK THAT'S CORRECT.
11 Q. AND YOU HAVE NO WAY OF KNOWING WHETHER THAT IS AN
12 ACCURATE TRANSCRIPTION OR NOT, DO YOU?
13 A. NO, I WOULD NOT HAVE A WAY OF KNOWING THAT.
14 Q. WERE ANY OF THESE PATIENTS UPON ENTERING THE HOSPITAL OR
15 UPON ENTERING THE GEROPSYCH UNIT TERMINAL IN THE OTHER SENSE
16 OF THE WORD AS YOU OBSERVED IT FROM THE MEDICAL RECORDS?
17 A. WHAT OTHER SENSE?
18 Q. IN HOURS OR DAYS.
19 A. YOU KNOW, ONE -- ONE NEVER KNOWS EXCEPT IN THOSE LIMITED
20 CIRCUMSTANCES WHERE A PATIENT IS CLEARLY DEMONSTRATING CERTAIN
21 WHAT ARE CALLING AGONAL SIGNS. OR A TRAUMA VICTIM WHERE
22 THERE'S ENOUGH INSULT OR INJURY TO -- TO MAKE THAT -- MAKE
23 THAT ASSUMPTION. BUT IN THESE TYPE OF PATIENTS AND IN MOST
24 PATIENTS WITH ADVANCED PULMONARY AND HEART DISEASE, THE BEST
25 ONE CAN DO IS -- IS OTHER THAN THOSE -- THOSE EXCEPTIONS, MAKE
111
1 DETERMINATIONS BASED UPON WEEKS TO MONTHS. THAT'S SIMPLY THE
2 WAY THE -- THE CURRENT EPIDEMIOLOGY IS. AND I CAN -- I CAN
3 REFER TO THAT LITERATURE SPECIFICALLY IF YOU'RE ACTUALLY
4 INTERESTED IN THIS TOPIC.
5 Q. NO, WHAT I'M INTERESTED IN KNOWING IS FROM THAT
6 STANDPOINT, DID YOU -- OR IS IT YOUR OPINION THAT ANY OF THESE
7 FIVE PATIENTS UPON ADMISSION TO THE GEROPSYCH UNIT, FROM THE
8 RECORDS YOU REVIEWED, WOULD YOU HAVE ANTICIPATED THEY WERE
9 GOING TO DIE WITHIN HOURS OR DAYS OF THE TIME THAT THEY
10 WERE -- OF THEIR ADMISSION?
11 A. THE PATIENTS WHO WERE ADMITTED WITH -- I THINK WE TALKED
12 ABOUT ELLEN ANDERSON AS ONE, WITH HIGH HEART RATES, AND VERY
13 AGITATED BEHAVIORS, THINK THOSE ARE ONES WHO I WOULD ACTUALLY
14 QUESTION, YOU KNOW, IF I WERE ADMITTING THAT PATIENT, AND SAY
15 WE MAY HAVE IN FACT A -- AN IMMINENTLY DYING PATIENT BECAUSE
16 OF THE -- THE NATURE OF THEIR VITAL SIGNS. THEN IT WOULD BE
17 UP TO THE PATIENT'S ADVANCE DIRECTIVES OF THE FAMILY OR
18 WHOEVER, THE OTHER PROXY, OR MY OWN DECISION MAKING IF -- IF
19 THE CIRCUMSTANCES PREVAILED TO DETERMINE WHETHER THAT SHOULD
20 BE WORKED UP AND EVALUATED FURTHER OR SIMPLY COMFORT MEASURES
21 PROVIDED. BUT THOSE ARE -- THOSE ARE, YOU KNOW, GRIM, GRIM
22 VITAL SIGNS FOR A -- FOR AN ELDERLY -- FRAIL ELDERLY PERSON IN
23 THEIR NINETIES COMING INTO AN ACUTE CARE CENTER.
24 Q. WHEN WERE THOSE VITAL SIGNS FIRST TAKEN, ACCORDING TO
25 YOUR NOTES?
112
1 A. WELL, ACCORDING TO MY MEMORY BECAUSE I -- I ONLY --
2 I'VE -- I DIDN'T PUT A SPECIFIC TIME, BUT THAT WAS ON
3 ADMISSION. SO WE'D HAVE TO GO BACK TO THE ORIGINAL RECORDS
4 AND I COULD TELL YOU SPECIFICALLY. BUT ALL I WROTE WAS ON
5 ADMISSION ON MY NOTE --
6 Q. AS TO ANY OF THE OTHER PATIENTS, WAS YOUR -- WAS THERE
7 ANY EXPECTATION THEY WERE GOING TO DIE WITHIN DAYS OR HOURS
8 OR -- OF THEIR ADMISSION?
9 A. I DON'T RECALL OFF THE TOP OF MY HEAD THAT I HAD -- THAT
10 VITAL SIGNS WERE SUCH A CONCERN, ALTHOUGH --
11 Q. DO YOU THINK --
12 A. -- ALTHOUGH I -- AGAIN, YOU SORT OF TAUGHT ME TO BE VERY
13 CAUTIOUS AND CAREFUL ABOUT WHAT I -- WHAT I SAY OFF AND ON THE
14 RECORD, SO I WOULD HAVE TO QUALIFY THAT BY SAYING, WERE I TO
15 REVIEW THE RECORDS AGAIN IN DETAIL, I MIGHT ACTUALLY COME UPON
16 A DIFFERENT OPINION, BUT THAT'S NOT WHAT I WAS REVIEWING THOSE
17 RECORDS INITIALLY FOR, TO DETERMINE WHETHER THESE PATIENTS
18 WERE GONNA DIE WITHIN THE NEXT FEW HOURS.
19 Q. DOCTOR, IT'S TRUE, IS IT NOT, THAT THE MEDICATIONS THAT
20 WERE ADMINISTERED TO ALL OF THESE PATIENTS WITH MAYBE THE
21 EXCEPTION OF ELLEN ANDERSON, AND I THINK SHE ONLY WAS
22 ADMINISTERED ONE TYPE OF MEDICATION, BUT A GOOD NUMBER OF
23 THOSE MEDICATIONS, EVEN THOUGH THEY'RE PSYCHOTROPIC
24 MEDICATIONS, ARE C.N.S. DEPRESSANTS, IS THAT CORRECT?
25 A. BY DEFINITION, THAT'S EXACTLY WHAT THEY ARE MEANT TO DO,
113
1 YES, SIR.
2 Q. OKAY. AND A C.N.S. DEPRESSANT, AS I UNDERSTAND IT,
3 DEPRESSES THE CENTRAL NERVOUS SYSTEM, IS THAT CORRECT?
4 A. ONE OF THE EFFECTS OF THESE DRUGS IS TO REDUCE ACTIVITY
5 WITHIN THE CENTRAL NERVOUS SYSTEM --
6 Q. OKAY.
7 A. -- AND IF THAT --
8 Q. THAT'S ONE OF THE EFFECTS OF THE DRUGS.
9 A. RIGHT.
10 Q. BUT IT'S IMPORTANT IN THE ADMINISTRATION OF THOSE DRUGS,
11 AS I UNDERSTAND YOUR TESTIMONY, TO EVALUATE THE PATIENT
12 CAREFULLY AND TO ADMINISTER THOSE DRUGS IN A MANNER WHICH I
13 UNDERSTAND IS REFERRED TO AS TITRATION, IS THAT CORRECT?
14 A. IDEALLY, ALTHOUGH I WILL TELL YOU THAT THE VAST MAJORITY
15 OF DRUGS OF THIS CATEGORY THAT ARE PRESCRIBED ARE PRESCRIBED
16 AS OUTPATIENTS WHERE THERE IS NO FOLLOW-UP AND EVALUATION OF
17 THESE PATIENTS. AND AS CLOSELY AS --
18 Q. WELL, I WANT YOU TO REFERENCE IT IN THE CONTEXT OF A
19 HOSPITAL SETTING. YOU WOULD EXPECT THERE WOULD BE CAREFUL
20 MONITORING OF THE ADMINISTRATION OF THOSE DRUGS, WOULD YOU
21 NOT?
22 A. WELL, YOU'RE SUGGESTING A STANDARD. WHAT I'M SAYING IS
23 THAT -- IS THAT IN FACT IN AN INPATIENT SETTING, THESE
24 PATIENTS ARE ACTUALLY MONITORED MUCH MORE CLOSELY THAN -- THAN
25 NORMATIVELY PATIENTS WHO ARE PRESCRIBED SIMILAR -- SIMILAR
114
1 DRUGS ARE.
2 Q. BUT THAT IS AN IMPORTANT COMPONENT OF THE PROCESS, IS IT
3 NOT?
4 A. I THINK IT'S A VERY FAIR GENERALIZATION TO SAY THAT WHEN
5 ONE PRESCRIBES A MEDICATION, ONE MONITORS THE EFFECTS OF THOSE
6 MEDICATIONS IN ONE WAY OR ANOTHER.
7 Q. AND IN RESPECT TO PAIN MANAGEMENT, AS I UNDERSTAND IT,
8 YOU -- YOU TITRATE BECAUSE YOU WANT TO MAKE SURE THAT YOU
9 EFFECTIVELY MANAGED THE PAIN, BUT YOU DON'T WANT TO CAUSE
10 TOXICITY, IS THAT CORRECT?
11 A. WELL, WHAT ONE DOES IS ONE DOES -- GIVES A BEST FIRST
12 GUESS DOSE OF A MEDICATION TO RELIEVE SYMPTOMS. AND THEN ON
13 THE HEELS OF THAT, EVALUATES THE CONSEQUENCES OF HAVING GIVEN
14 THAT DOSE.
15 Q. AND ONE HAS TO EVALUATE THE PATIENT, THEY HAVE TO
16 EVALUATE WHETHER THEY'RE OPOID -- OPIOID NAIVE, THEY HAVE TO
17 EVALUATE THEIR GENERAL HEALTH, THEY HAVE TO EVALUATE A NUMBER
18 OF FACTORS, IS THAT CORRECT?
19 A. IN THE -- IN THE REFERENCE OF GENERAL STANDARDS OF CARE
20 NOW, I THINK YOU'RE SPEAKING SPECIFICALLY AND VERY WELL,
21 YOU'RE ARTICULATING VERY WELL WHAT WE WOULD -- WOULD BE
22 CONSIDERED TO BE THE STANDARD OF CARE FOR PRESCRIPTION OF
23 MEDICATIONS, PERIOD.
24 Q. OKAY.
25 A. AND FOR OPIOID ANALGESICS PARTICULARLY --
115
1 Q. SO YOU WOULD AGREE --
2 A. -- YES.
3 Q. -- WITH THAT STATEMENT, IS THAT CORRECT?
4 A. I THINK IT'S A FAIR STATEMENT, YES.
5 Q. OKAY. YOU WOULD ALSO AGREE, WOULD YOU NOT, THAT AS
6 YOU'VE TESTIFIED TO THAT THERE CAN BE DIFFERENT CAUSES
7 ATTRIBUTABLE TO, SAY, A PATIENT WHO SCREAMS OR ACTS OUT OR
8 KICKS, BITES, THOSE KINDS OF THINGS, I THINK YOU -- YOU'VE
9 SAID THAT PAIN COULD BE A PRIMARY CAUSE OF THAT, IS THAT
10 CORRECT?
11 A. YES, THAT IS CORRECT.
12 Q. SO THERE ARE OTHER CAUSES I ASSUME THAT COULD ALSO
13 PRODUCE THOSE TYPES OF -- OF THAT TYPE OF CONDUCT, IS THAT
14 CORRECT?
15 A. THAT IS CORRECT.
16 Q. AND SO IT'S NOT NECESSARILY A MANIFESTATION OF PAIN, IS
17 THAT CORRECT?
18 A. THAT'S A LOGICAL STATEMENT, YES.
19 Q. OKAY. AND SO IN THE PROCESS OF -- OF EVALUATING THAT
20 PATIENT, CAN YOU TELL ME, IS THE ADMINISTRATION OF A CENTRAL
21 NERVOUS SYSTEM DEPRESSANT, SUCH AS MORPHINE, ISN'T PAIN,
22 ACTUAL PAIN, AN IMPORTANT PART OF THAT PROCESS TO DETERMINE
23 WHETHER OR NOT YOU ADMINISTER MORPHINE?
24 A. THAT'S NOT A LOGICAL STATEMENT.
25 Q. WELL --
116
1 A. YOUR FIRST ONE WAS, THE SECOND ONE WASN'T.
2 Q. MAYBE I -- MAYBE I CAN REPHRASE IT. IF I AM GOING TO --
3 TO PRESCRIBE, IF YOU WILL, AN INJECTION OF MORPHINE TO A
4 PATIENT, IN ORDER TO APPROPRIATELY EVALUATE THE EFFECT OF THAT
5 MORPHINE, I NEED TO BE ASSURED THAT THE MANIFESTATION IS IN
6 FACT PAIN, DO I NOT?
7 A. WELL, SEE THAT'S UNFORTUNATELY THE -- THAT'S THE
8 ILLOGICAL PART OF YOUR STATEMENT BECAUSE YOU'VE ALREADY STATED
9 THAT THESE PATIENTS CANNOT -- ARE NOT ASSESSABLE OTHER THAN BY
10 THEIR BEHAVIORS, AND SO THE ONLY WAY YOU CAN DETERMINE WHETHER
11 PAIN IN FACT MAY BE PART OF -- OF THE CONTRIBUTION IS BY
12 TREATING IT -- TREATING WITH AN ANALGESIC --
13 Q. OKAY.
14 A. -- AND THEN DETERMINING WHETHER THAT'S BEEN OF BENEFIT OR
15 NOT, BUT --
16 Q. DID YOU NOT TELL MISS BOWMAN THAT MORPHINE IN FACT COULD
17 PRODUCE AGITATION?
18 A. IF WE SOMEHOW GOT OFF INTO SOME ERUDITE FIELD OF OPIOID
19 PHARMACOLOGY WHERE WE WERE TALKING ABOUT HIGH DOSES, AND I'M
20 TALKING ABOUT VERY HIGH DOSES OF MORPHINE, WHERE METABOLITES
21 ACCUMULATE, HYPER-EXCITABILITY AND IN FACT DELIRIUM CAN BE
22 CAUSED BY MORPHINE. BUT THE BEST OF MY KNOWLEDGE, NONE OF
23 THESE PATIENTS WERE ADMITTED TO THE UNIT ON HIGH-DOSE
24 MORPHINE, AND SO BY DEDUCTION, THEIR -- THEIR SYMPTOMS COULD
25 NOT BE ATTRIBUTED TO OPIOID INTOXICATION AT THE TIME OF
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1 ADMISSION.
2 Q. AT LEAST IN YOUR OPINION, THEY COULD NOT ATTRIBUTE TO
3 THAT, IS THAT CORRECT?
4 A. WELL, UNLESS YOU'RE GONNA TELL ME, SHOW ME EVIDENCE THAT
5 THESE PATIENTS HAD MORPHINE ON BOARD WHEN THEY WERE ADMITTED,
6 AT THE TIME OF THEIR ADMISSION, TO THE BEST OF MY KNOWLEDGE,
7 THE MEDICAL RECORDS DID NOT SAY THAT THESE PATIENTS HAD BEEN
8 GIVEN A DOSE OF MORPHINE BEFORE ARRIVAL AT THE -- OR MULTIPLE
9 DOSES BEFORE ADMISSION. AND THEY WERE ALL -- THEY ALL CAME IN
10 A HYPER-EXCITABLE OR AGITATED STATE. SO I DON'T KNOW HOW YOU
11 COULD ATTRIBUTE MORPHINE TO -- TO THE CAUSE THERE.
12 Q. BUT YOU'VE RECOGNIZED THAT THERE ARE OTHER -- THERE ARE
13 OTHER FACTORS THAT CAN CAUSE THE SAME TYPE OF SYMPTOMATOLOGY
14 THAT WAS OBSERVED IN THESE PATIENTS OTHER THAN PAIN.
15 A. MAYBE I'M GETTING TIRED, BUT I'M JUST LOSING THE CHAIN OF
16 LOGIC AND THOUGHT HERE ALTOGETHER. COULD WE MAYBE BACK IT UP
17 AND START AGAIN HERE SO WE CAN -- I CAN FOLLOW WHAT YOU'RE --
18 Q. YOU RECOGNIZE THAT -- I THINK YOU TESTIFIED EARLIER THAT
19 THERE CAN BE OTHER THINGS THAT ARE INDICATIVE OF CERTAIN
20 BEHAVIOR OTHER THAN PAIN.
21 A. INDICATIVE OF CERTAIN BEHAVIOR, I'M --
22 Q. YEAH, FOR INSTANCE, LET'S BE SPECIFIC. ELLEN ANDERSON,
23 YOU'VE SEEN MEDICAL RECORDS, I ASSUME, YOU'VE REVIEWED THE
24 NURSES' NOTES THAT TALK ABOUT HER SCREAMING AND THRASHING
25 ABOUT.
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1 A. CORRECT.
2 Q. DID YOU NOT?
3 A. THAT'S CORRECT.
4 Q. OKAY. ASSUME IF YOU WILL THAT THERE WAS TESTIMONY FROM
5 HER FAMILY MEMBERS TO THE EFFECT THAT SHE WAS VERY UPSET AT
6 BEING MOVED TO THE GEROPSYCH UNIT. WOULD THAT SURPRISE YOU?
7 A. YOU KEEP ASKING ME IF I CAN BE SURPRISED BY THINGS, AND I
8 SAY --
9 Q. OKAY.
10 A. -- THAT WOULD -- NOTHING WOULD SURPRISE ME, SO --
11 Q. AND SO THERE WAS FURTHER TESTIMONY TO THE EFFECT THAT
12 WHEN THEY LEFT HER, FREQUENTLY WHEN SHE WAS LEFT, SHE WOULD
13 SCREAM, SHE WOULD -- SHE WOULD ACT OUT IN THE SAME CAPACITY
14 THAT SHE ACTED OUT ON THAT PARTICULAR OCCASION.
15 A. THE NOTES IN THE CHART TO MY BEST RECOLLECTION SUGGEST
16 THAT WHEN SHE WAS LEFT ALONE, OUT -- WHEN SHE WAS NOT
17 COMFORTED BY -- BY HER FAMILY MEMBERS, THAT IN FACT HER -- SHE
18 HAD INCREASED AGITATIVE BEHAVIORS. BUT IT WASN'T EXCLUSIVE TO
19 THAT. BUT THAT CERTAINLY EXACERBATED HER PROBLEMS. NOW, IT
20 WAS NOTHING THAT SUGGESTED SHE WAS AWARE -- THAT SHE WAS AWARE
21 OF HER TRANSFER OR WHERE HER ENVIRONMENT WAS. IN FACT, THE
22 INITIAL EVALUATION SUGGESTED THAT SHE WAS MINIMALLY ORIENTED.
23 AND SO I'M NOT SURE HOW -- HOW IT COULD BE ASSERTED. IT MAY
24 HAVE BEEN, BUT I DIDN'T SEE ANY NOTES --
25 Q. WHAT INITIAL EVALUATION DID YOU SEE, DOCTOR?
119
1 A. THERE WAS THE -- THE INTAKE REPORT BY THE NURSES AND I
2 THINK THERE WAS A -- I'M NOT SURE IF IT WAS RETROSPECTIVELY
3 DONE OR WHATEVER, BUT THERE WAS A TYPED REPORT BY THE -- BY
4 DR. WEITZEL FOR ADMISSION PURPOSES.
5 Q. THERE WAS A TYPED REPORT BY DR. WEITZEL FOR
6 ADMINISTRATION PURPOSES?
7 A. BUT THERE'S A NURSING INTAKE REPORT AS WELL.
8 Q. OKAY. BUT --
9 A. SO THOSE ARE MY SOURCES OF KNOWLEDGE --
10 Q. -- WHAT I'M ASKING YOU, WAS HER -- THE FACT THAT SHE
11 THRASHED ABOUT, THAT SHE SCREAMED, IS NOT NECESSARILY
12 INDICATIVE OF PAIN, IS IT?
13 A. THERE ARE MULTIPLE CAUSES OF --
14 Q. OKAY. YOU'VE ANSWERED MY QUESTION.
15 A. OKAY. I THINK I UNDERSTOOD IT THAT TIME.
16 Q. IN REVIEWING LAUREL HERBST'S TESTIMONY, WHICH YOU SAID
17 YOU DID, DO YOU HAVE A RECOLLECTION OF WHAT HER TESTIMONY WAS?
18 A. I THINK IN A NUTSHELL, DR. HERBST CONCLUDED THAT THESE
19 WERE PATIENTS WHO MET THE CRITERIA FOR HOSPICE ELIGIBILITY.
20 AND --
21 Q. JUST THE SAME AS YOUR TESTIMONY, IS THAT CORRECT? WOULD
22 THAT BE CONSISTENT WITH YOUR TESTIMONY?
23 A. THAT THESE ARE PATIENTS WHO ARE ELIGIBLE FOR HOSPICE?
24 Q. OKAY.
25 A. THAT THAT WAS -- THAT ONE PORTION OF HER TESTIMONY. AND
120
1 THE OTHER WAS THAT IN GENERAL, THAT THE PROVISION OF COMFORT
2 MEASURES WAS APPROPRIATE.
3 Q. AND THAT THE CARE RENDERED WAS APPROPRIATE, IS THAT
4 CORRECT?
5 A. THE GENERAL SENSE OF HER TESTIMONY WAS THAT, YES.
6 Q. IN FACT, IT WAS -- IT WAS ACTUALLY -- SHE DIDN'T DESCRIBE
7 IT AS BEING D. MINUS OR BUMBLING, DID SHE?
8 A. I DON'T THINK SHE USED AS COLORFUL TERMINOLOGY AS I DID,
9 NO.
10 Q. WELL, DID SHE DESCRIBE IT AS BEING DEFICIENT IN ANY
11 RESPECT ACCORDING TO YOUR RECOLLECTION OF HER TESTIMONY?
12 A. I CAN'T RECALL THAT SHE -- SHE WAS CRITICAL, NO.
13 Q. NOW, YOU'VE TALKED ABOUT A VARIETY OF MORBIDITY ISSUES
14 THAT WERE GOING ON AND DIFFERENT PROCESSES THAT WERE GOING ON
15 IN THESE PATIENTS. DID YOU EVER OR WERE YOU EVER ASKED TO
16 OPINE AS TO CAUSATION?
17 A. YOU MEAN WHY --
18 Q. DO YOU UNDERSTAND WHAT I MEAN BY THAT?
19 A. I -- IT'D BE HELPFUL IF YOU'D ELABORATE PLEASE.
20 Q. WERE YOU EVER ASKED TO DETERM -- WERE YOU EVER ASKED YOUR
21 OPINION AS TO CAUSE OF DEATH IN EACH ONE OF THESE PATIENTS?
22 A. BY --
23 Q. AS TO WHAT THE CAUSE OF DEATH WAS.
24 A. YOU MEAN BY DOC -- BY MR. STIRBA, BY THE PROSECUTOR, I
25 MEAN WHO --
121
1 Q. WELL, BY THE PROSECUTOR OR MR. STIRBA. DID YOU EVER FORM
2 ANY OPINION RELATED TO THE CAUSE OF DEATH OF THESE PATIENTS?
3 A. YES.
4 Q. AND WHEN DID YOU FORM THAT OPINION, SIR?
5 A. WHEN I REVIEWED THE RECORDS.
6 Q. AND DID YOU RELATE THAT OPINION TO ANYBODY?
7 A. IN ONE WAY OR ANOTHER, I'M CERTAINLY I -- I -- I WENT
8 OVER AND OVER WITH THE -- EACH CASE AS I DID WITH THE
9 ASSISTANT ATTORNEYS GENERAL, I STATED THAT THE SOME -- SOME OF
10 THEIR PRIMARY DISEASE PROCESSES AND CO-MORBIDITIES WERE SEVERE
11 ENOUGH TO WARRANT THE DESCRIPTION AS TERMINAL. AND THAT --
12 THAT IN A COUPLE OF THE CASES, I DID SEE THAT THE PROVISION OF
13 AGGRESSIVE SYMPTOM MANAGEMENT IN THE BEST OF MY OPINION
14 PROBABLY HASTENED THEIR DEATHS, BUT IN THE MAIN, THEY WERE
15 DYING FROM THE DISEASES THAT THEY -- THAT MOTHER NATURE
16 IMPOSED UPON THEM.
17 Q. SO WHEN YOU SAY THAT IN A COUPLE OF THE CASES, THE
18 AGGRESSIVE TREATMENT PROBABLY HASTENED THEIR DEATH?
19 A. YES.
20 Q. AND WHAT WAS THE AGENCY THAT HASTENED THEIR DEATH?
21 A. WELL, ANY TIME YOU HAVE A PATIENT WHO REQUIRES CHEMICAL
22 CONSTRAINT TO RELIEVE, TO MITIGATE SEVERE AGITATION, AND
23 ESPECIALLY IN ADVANCED DEMENTIA, DEATH IS USUALLY QUITE
24 IMMINENT. AND IN THE ABSENCE OF GIVING THOSE DRUGS, THESE
25 PATIENTS DIE OF A WHOLE NUMBER OF -- HOST OF THINGS, MANY OF
122
1 WHICH ARE VERY UNPLEASANT, INCLUDING SELF-INJURY, SEPSIS,
2 PNEUMONIA, ASPIRATION, HEAD INJURY, MYOCARDIAL INFARCTIONS,
3 STROKE, AND SO FORTH. AND YOU CAN'T -- SINCE NO INDIVIDUAL
4 PATIENT IS -- CAN BE COMPARED AGAINST THEMSELVES, IT'S THEN A
5 BEST GUESS TO SAY, YOU KNOW, WHAT'S GONNA HAPPEN HERE FIRST?
6 IS THE FIRST PATIENT GONNA SORT OF, YOU KNOW, DIE OF THE
7 CONSEQUENCES OF THE DISEASE IN AN UNTREATED STATE OR ARE WE
8 GONNA PROVIDE SOME DIGNITY, SOME COMFORT, SOME -- SOME CARE.
9 AND AS A RESULT OF THAT, IS THAT GOING TO -- TO LEAD TO DEATH
10 IN A -- IN AN EARLIER FASHION? SO --
11 Q. THAT'S -- THAT'S --
12 A. -- MY BEST GUESS IS, MY BEST ESTIMATE, THAT IN A COUPLE
13 OF THE CASES, I COULD SEE HOW THE CHEMICAL CONSTRAINT OR
14 RESTRAINT AND THE USE ANALGESICS COULD IN A BEST GUESS MORE
15 LIKELY THAN NOT MAYBE HASTEN THESE PATIENTS' DEATH. THAT'S
16 THE CONCLUSION I'VE COME TO AND I THINK I WAS VERY
17 STRAIGHTFORWARD IN STATING THAT TO THE -- THOSE WHO PRECEDED
18 YOU IN THE PROSECUTION IN INTERVIEWING ME.
19 Q. YOU STATED IT IN THAT FASHION, AS YOU RECALL?
20 A. UH-HUH. THAT WAS -- EXCUSE ME, YES.
21 Q. AND IN RESPECT TO THAT, SIR, YOU WERE TALKING ABOUT THE
22 DOUBLE EFFECT DOCTRINE, WERE YOU NOT?
23 A. YES, BECAUSE WE WENT FROM THERE TO SAYING WAS THIS, YOU
24 KNOW, MAYBE THERE'S SOME ISSUES OF NEGLIGENCE WHERE THINGS
25 COULD HAVE BEEN DONE BETTER AND -- AND TRYING TO FIGURE OUT
123
1 STANDARD OF CARE ISSUES. BUT IN TERMS OF WHETHER THESE WERE
2 WORTHY OF THE ACCUSATION ACTIVE EUTHANASIA, WHICH AGAIN WAS A
3 PHYSICIAN DESCRIPTION, NOT ATTORNEY DESCRIPTION, I COULD SAY I
4 COULD NOT AS A PHYSICIAN SUPPORT THAT ACCUSATION.
5 Q. SO YOU LOOKED AT IT AS AN ACCUSATION AS IT RELATED TO
6 ACTIVE EUTHANASIA.
7 A. WELL, IT'S MY UNDERSTANDING THAT THAT'S THE -- THE
8 DESCRIPTION USED BY THE PHYSICIAN THAT FIRST BROUGHT THIS
9 ATTENTION -- TO THE ATTENTION OF THE PROSECUTION.
10 Q. BUT YOU DID NOT -- YOU DID NOT CHARACTERIZE IT AS
11 CRIMINAL CONDUCT IN RESPECT TO WHAT YOU OBSERVED.
12 A. WELL, I SAID, YOU KNOW, ACTIVE EUTHANASIA IS CRIMINAL
13 CONDUCT. I MEAN IT'S -- IT'S SYNONOMOUS IN THIS COUNTRY. IN
14 THE NETHERLANDS, IT'S NOT.
15 Q. BUT THE HASTENING OF DEATH THROUGH THE USE OF CHEMICALS,
16 IF DONE UNDER THE CONTEXT -- OR DONE UNDER THE CONTEXT OF
17 COMFORT CARE OR END-OF-LIFE CARE IS APPROPRIATE, IN YOUR
18 OPINION.
19 A. YES. AND THERE'S CASE LAW THAT SAYS THE ABSENCE OF THAT
20 IS BATTERY. AND THERE ARE CASES THAT -- YOU KNOW, SO
21 PHYSICIANS, YOU KNOW, COULD BE, YOU KNOW, THERE'S CASE LAW
22 THAT SORT OF GOES ON BOTH SIDES. SO, YOU KNOW, THE DISCUSSION
23 WE HAD IN MY HOME REGARDING THIS WAS THAT THIS WAS, YOU KNOW,
24 APPEARED TO BE A CASE OF DOUBLE EFFECT. AND THE INITIAL
25 REVIEW I WAS ASKED TO DO WAS TO LOOK AT INDICATIONS AND
124
1 CAUSATION AND SO, YOU KNOW, I TRIED TO DO THAT AS
2 STRAIGHTFORWARD AND HONESTLY AS I COULD, AND TO NOT -- TO NOT
3 HEDGE MY CONCLUSIONS OR MY WORDS, REGARDLESS OF WHO WAS ASKING
4 QUESTIONS, WHETHER IT WAS THE DEFENSE OR THE PROSECUTION. AND
5 THAT'S MY -- MY DUTY AGAIN ACCORDING TO THE CODE OF MEDICAL
6 ETHICS FOR EXPERT TESTIMONY.
7 Q. IN RESPECT TO DR. HERBST'S TESTIMONY, DID YOU SEE
8 ANYTHING REFERENCING IN HER TESTIMONY THAT THE MORPHINE
9 CONTRIBUTED OR HASTENED THE DEATH OF THESE INDIVIDUALS?
10 A. I DON'T RECALL SEEING THAT, NO.
11 Q. OKAY. YOU'RE AWARE THAT THIS WAS A TEN-BED UNIT?
12 A. I WAS NOT AWARE OF THE SIZE, NO.
13 Q. OKAY. ASSUMING NOW THAT THAT IS THE FACT, IT WAS A
14 TEN-BED UNIT, AND YOU HAVE A TOTAL OF FIVE DEATHS OVER A
15 15-DAY TIME FRAME, DOES THAT CAUSE YOU ANY CONCERN?
16 A. IT WOULD -- I THINK IT'S JUSTIFICATION TO TRIGGER A
17 REVIEW AND ALSO TO DETERMINE WHETHER IN FACT THERE'S LEVEL OF
18 ACUITY OF PATIENTS BEING ADMITTED TO THIS UNIT AND THAT THIS
19 IS THE PROPER AND APPROPRIATE PLACE FOR THOSE ADMISSIONS OR
20 NOT. I CERTAINLY SEE THAT IT WARRANTS REVIEW, YES.
21 Q. LET ME ASK YOU ONE OTHER QUESTION IN RESPECT TO THAT.
22 ASSUME ALSO THAT IN RESPECT TO ALL FIVE OF THOSE PATIENTS THAT
23 THE EVIDENCE SHOWS THEY WERE THE ONLY ONES, WITH THE EXCEPTION
24 OF ONE MINOR DOSE TO AN INDIVIDUAL OF TWO MILLIGRAMS, THAT
25 WERE GIVEN THE DRUG MORPHINE. DOES THAT CAUSE YOU ANY
125
1 CONCERN?
2 A. IF THE -- IF THE OTHER PATIENTS WERE WELL CONTROLLED IN
3 THEIR SYMPTOMS AND DID NOT DEMONSTRATE PAIN BEHAVIORS AND HAD
4 NO INDICATION FOR MORPHINE, THEN WHY WOULD THERE BE A CAUSE
5 FOR CONCERN? IF YOU TOLD ME THE OPPOSITE AND EXACTLY SIMILAR
6 PATIENTS, SIMILAR CONDITIONS, WERE NOT TREATED IN A SIMILAR
7 FASHION, I'D SAY THAT THERE WAS A DISPARITY AND A DISCREPANCY
8 IN -- IN CARE PROVIDED, AND I WOULD WANT TO KNOW WHY.
9 Q. WHAT IF YOU WERE TOLD THAT DURING THAT MONTH'S TIME FRAME
10 THAT THERE WAS NO MORPHINE THAT WAS USED IN CONNECTION WITH
11 THESE -- THESE PATIENTS UP UNTIL AROUND THE CHRISTMAS
12 HOLIDAYS, WHICH WAS WITHIN 15 DAYS OF THE DATE THAT THEY ALL
13 DIED?
14 A. I WOULD NEED A LOT MORE INFORMATION ABOUT THOSE OTHER
15 PATIENTS --
16 Q. OKAY.
17 A. -- IT WOULD BE EXTRAORDINARILY PRESUMPTUOUS --
18 Q. SO AS I UNDERSTAND YOUR TESTIMONY, YOU THINK -- YOUR
19 OPINION IS, IS THAT MORPHINE MAY HAVE BEEN CONTRIBUTING
20 FACTOR, IT MAY HAVE HASTENED THE DEATH IN AT LEAST TWO OF
21 THESE PATIENTS OR A COUPLE OF THESE PATIENTS, BUT THAT'S AS
22 FAR AS YOU'RE WILLING TO GO AS IT RELATES TO THE USE OF
23 MORPHINE, IS THAT CORRECT?
24 A. NO, I WOULDN'T SAY AS FAR AS I'M WILLING TO GO. I'M
25 SAYING THAT THAT'S A CONCLUSION BASED UPON MY EXPERT OPINION
126
1 HAVING REVIEWED THESE RECORDS AS A -- AN EXPERT FOR THE
2 PROSECUTION INITIALLY.
3 MR. WILSON: OKAY. I HAVE NO FURTHER QUESTIONS, YOUR
4 HONOR.
5 THE COURT: IS THERE ANY REDIRECT?
6 MR. STIRBA: I HAVE NONE, YOUR HONOR. THANK YOU.
7 THE COURT: OKAY. YOU MAY TAKE YOUR SEAT.
8 THE WITNESS: THANK YOU.
9 THE COURT: OKAY. THEN WHY DON'T WE SET A TIME
10 WHERE WE CAN HAVE AN ARGUMENT.
11 OKAY. I'M LOOKING AT MY CALENDAR. WELL, HOW LONG WOULD
12 YOU ANTICIPATE FOR AN ARGUMENT?
13 MR. STIRBA: WELL, I THINK I'D LIKE A FULL HALF AN
14 HOUR IF I COULD, YOUR HONOR.
15 MR. WILSON: SAME, YOUR HONOR.
16 THE COURT: OKAY. HOW IS WEDNESDAY THE 13TH? IN
17 THE MORNING?
18 MR. STIRBA: THAT'S FINE WITH ME, YOUR HONOR.
19 MR. WILSON: WE'LL BE AVAILABLE, YOUR HONOR.
20 THE COURT: OKAY. THEN IS NINE O'CLOCK -- I HAVE
21 FROM NINE UNTIL NOON. AND SO I THINK --
22 MR. WILSON: WILL THAT BE HERE, YOUR HONOR?
23 THE COURT: WELL, I THINK IT'LL BE IN COURTROOM 3.
24 WE'RE IN THIS ROOM BECAUSE JUDGE DAWSON, THE ROTATING JUDGE'S
25 CALENDAR, HE HAD THAT THIS AFTERNOON, AND JUDGE HANSEN WASN'T
127
1 HERE BECAUSE HE'S UP IN MORGAN TODAY. SO WE'LL BE IN
2 COURTROOM NUMBER THREE AT NINE A.M. ON THE 13TH OF DECEMBER,
3 WHICH IS THIS WEDNESDAY. AND SO WE'LL BE IN RECESS UNTIL
4 THEN. AND THEN ARE YOU GONNA FAX SOMETHING? BUT CAN YOU ALSO
5 LET THEM KNOW, SIR, FROM THE PRISON THAT WE HAVE THIS HEARING
6 ON THE 13TH?
7 THE BAILIFF: YES.
8 THE COURT: I -- WE'LL FAX IT TO THEM TOMORROW
9 PROBABLY, BUT --
10 THE BAILIFF: I STILL NEED TO TAKE THE CAPTAIN TONIGHT
11 ANYWAY, I'LL PROBABLY --
12 THE COURT: OKAY. ALL RIGHT. THEN WE WILL SEE YOU
13 ON WEDNESDAY AT NINE O'CLOCK IN COURTROOM NUMBER 3.
14 MR. STIRBA: THANK YOU, YOUR HONOR.
15 *****
16 CERTIFICATE
17 STATE OF UTAH )
) SS
18 COUNTY OF WEBER)
19 THIS IS TO CERTIFY THAT THE FOREGOING 127 PAGES OF
20 TRANSCRIPT CONSTITUTE A TRUE AND ACCURATE RECORD OF THE
21 PROCEEDINGS TO THE BEST OF MY KNOWLEDGE AND ABILITY AS A
22 CERTIFIED SHORTHAND REPORTER IN AND FOR THE STATE OF UTAH.
23 DATED AT OGDEN, UTAH THIS 2ND DAY OF APRIL 2001.
24
DEAN OLSEN, CSR
25
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