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Testimony of Perry Fine, MD 1
This testimony comes early in the hearing process in the
motion for a new trial, on Nov. 29, 2000, and demonstrates
the dishonesty and unethical tactics of the state lawyers.
IN THE DISTRICT COURT OF DAVIS COUNTY
STATE OF UTAH
*****
STATE OF UTAH )
)
PLAINTIFF, )
)
VS. )
)REPORTER'S TRANSCRIPT
) TESTIMONY OF:
ROBERT ALLEN WEITZEL ) PETER GORDON FINE
)
) CASE NO# 991700983
)
)
DEFENDANT, )
*****
BE IT REMEMBERED THAT THIS MATTER CAME ON
REGULARLY FOR HEARING BEFORE THE HONORABLE THOMAS L.
KAY, SITTING AT FARMINGTON ON THE 29TH OF NOVEMBER,
2000.
APPEARANCES:
FOR THE PLAINTIFF: MELVIN WILSON
FOR THE DEFENDANT: PETER STIRBA
REPORTED/TRANSCRIBED BY: JOANNE PRATT, CSR
800 WEST STATE STREET
FARMINGTON, UT 84025
2
1
2 I N D E X
3 WITNESS PAGE
NO.
4
PERRY GORDON FINE
5 DIRECT EXAMINATION BY MR. STIRBA...............3
CROSS-EXAMINATION BY MR. WILSON...............38
6 REDIRECT EXAMINATION BY MR. STIRBA............78
RECROSS-EXAMINATION BY MR. WILSON.............86
7
8 3
1
2 NOVEMBER 29, 2000
3 PERRY GORDON FINE
4 CALLED BY THE DEFENDANT, HAVING BEEN DULY
5 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
6
7 DIRECT EXAMINATION
8 BY MR. STIRBA:
9 Q. DR. FINE, WOULD YOU PLEASE STATE YOUR FULL NAME AND
10 SPELL YOUR LAST NAME, PLEASE?
11 A. PERRY GORDON FINE. F-I-N-E.
12 Q. AND YOU ARE A MEDICAL DOCTOR LICENSED IN THE STATE OF
13 UTAH?
14 A. YES.
15 Q. AND DR. FINE, WHERE DO YOU WORK?
16 A. UNIVERSITY OF UTAH AT THE HEALTH SCIENCES CENTER.
17 Q. AND WHAT DO YOU DO FOR THE UNIVERSITY OF UTAH?
18 A. I'M A PROFESSOR OF ANESTHESIOLOGY ON THE FACULTY AND
19 MOST OF MY TIME IS SPENT IN EITHER DIRECT PATIENT CARE IN
20 THE PAIN MANAGEMENT CENTER OR TEACHING MEDICAL STUDENTS,
21 RESIDENTS AND FELLOWS IN THE DEPARTMENT OF ANESTHESIOLOGY OR
22 IN THE SCHOOL OF MEDICINE.
23 Q. NOW, YOU HAVE PREPARED AN AFFIDAVIT FOR PURPOSES OF THIS
24 MOTION AND ATTACHED TO IT IS YOUR CURRICULUM VITAE. DO YOU
25 RECALL THAT?
4
1 A. YES.
2 Q. AND HAVE YOU REVIEWED THAT AT THE TIME THAT YOU SIGNED
3 THE AFFIDAVIT TO ASSURE ITS ACCURACY IN TERMS OF YOUR
4 QUALIFICATIONS, BACKGROUND AND EXPERTISE?
5 A. YES.
6 Q. IS THERE A PARTICULAR TRAINING OR BACKGROUND OR
7 EXPERTISE THAT YOU PRESENTLY HAVE SUCH THAT YOU WERE
8 CONTACTED TO BECOME INVOLVED IN THIS CASE?
9 A. YES.
10 Q. AND WOULD YOU TELL THE COURT WHAT THAT IS?
11 A. BASED UPON MY FORMAL TRAINING WHICH WAS IN
12 ANESTHESIOLOGY AND PAIN MANAGEMENT, I THEN PROCEEDED TO GET
13 INVOLVED IN END-OF-LIFE CARE IN A FORMAL MANNER AS A MEDICAL
14 DIRECTOR FOR THE COMMUNITY NURSING SERVICES HOSPICE ABOUT
15 10-12 YEARS AGO. AND ABOUT FOUR OR FIVE YEARS AGO BEGAN TO
16 WORK EXTENSIVELY IN THE AREA OF END-OF-LIFE CARE, ESPECIALLY
17 IN THE FIELD OF PAIN MANAGEMENT AND PALLIATIVE MEDICINE, AND
18 I BECAME INVOLVED IN DOING RESEARCH IN SIMILAR AREAS OF
19 TEACHING AND DIRECT PATIENT CARE.
20 Q. DO YOU KNOW DR. BRAD HARE?
21 A. YES. DR. HARE IS A COLLEAGUE OF MINE IN THE PAIN
22 MANAGEMENT CENTER.
23 Q. AND WHEN YOU SAY A COLLEAGUE AT THE PAIN MANAGEMENT
24 CENTER, CAN YOU DESCRIBE A LITTLE BIT MORE SPECIFICALLY THE
25 NATURE OF YOUR RELATIONSHIP AND HOW YOUR LIVES SORT OF ARE
5
1 INTERTWINED PROFESSIONALLY?
2 A. YES. WE'VE BEEN PARTNERS IN THE PAIN MANAGEMENT CENTER
3 AS MEDICAL PRACTICE PARTNERS FOR ABOUT 15 YEARS. DR. HARE
4 WAS THE FIRST MEDICAL DIRECTOR OF THE PAIN MANAGEMENT
5 CENTER. I ASSUMED DUTIES AS MEDICAL DIRECTOR OF THE PAIN
6 MANAGEMENT CENTER SEVERAL YEARS AGO. I CAN'T REMEMBER
7 EXACTLY WHEN. AND THEN WHEN I BECAME MORE INVOLVED IN
8 END-OF-LIFE CARE AREAS, I RELINQUISHED THAT POSITION TO THE
9 CURRENT MEDICAL DIRECTOR, DR. ASHBURN. BUT DR. HARE AND I
10 HAVE WORKED VERY CLOSELY FOR THE LAST 15 YEARS IN BOTH IN
11 THE DEPARTMENT OF ANESTHESIOLOGY IN THE AREAS OF
12 ANESTHESIOLOGY, IN CRITICAL CARE, AND IN THE PAIN CLINIC.
13 Q. AND HOW LONG HAVE YOU BEEN EMPLOYED OR WORKED AT THE
14 UNIVERSITY OF UTAH?
15 A. I BECAME FULL-TIME FACULTY IN 1985, SO 15 YEARS.
16 Q. NOW, I WANT TO DIRECT YOUR ATTENTION TO THE BEGINNING
17 PART OF APRIL OF THIS YEAR. DO YOU RECALL HAVING A
18 CONVERSATION WITH DR. HARE AT THAT TIME RELATING TO THIS
19 CASE?
20 A. YES, I DO.
21 Q. AND COULD YOU TELL US, WAS THAT CONVERSATION IN PERSON
22 OR OVER THE TELEPHONE?
23 A. THAT CONVERSATION WAS IN PERSON.
24 Q. AND WHERE DID IT TAKE PLACE? DO YOU RECALL?
25 A. IN THE PAIN CLINIC.
6
1 Q. AND WAS ANYONE ELSE PRESENT?
2 A. OH, THERE WERE PROBABLY SOME OF THE MEDICAL ASSISTANTS
3 IN THE ENVIRONS. I THINK WE WERE STANDING ACTUALLY TALKING
4 IN THE -- AT THE SORT OF THE NURSING STATION AREA. SO THERE
5 MAY HAVE BEEN, BUT I DON'T RECALL SPECIFICALLY WHO WAS THERE
6 AT THE TIME OR IF THERE WAS ANYBODY PAYING ATTENTION TO OUR
7 CONVERSATION.
8 Q. TELL THE COURT WHAT WAS SAID AT THAT TIME.
9 A. DR. HARE, AS I RECALL, SAID THAT HE WAS REFERRING ME TO
10 THE ASSISTANT ATTORNEY GENERAL'S REGARDING A CASE THAT WAS
11 GOING TO PROCEED TO TRIAL THAT INVOLVED SOME PATIENTS IN A
12 GEROPSYCHIATRY UNIT AND HE FELT THAT THE REASON HE WAS
13 REFERRING -- AND HE SAID HE WAS INVOLVED WORKING WITH THE
14 PROSECUTION IN THE CASE -- AND THE REASON HE WOULD LIKE TO
15 REFER ME TO THEM WAS BECAUSE OF MY EXPERIENCE AND EXPERTISE
16 IN SIMILAR MATTERS PERTAINING TO END-OF-LIFE CARE.
17 Q. DID HE DESCRIBE ANYTHING FURTHER IN TERMS OF THE NATURE
18 OF THE FACTS OF THE CASE OR THE CIRCUMSTANCES?
19 A. HE STATED IN VERY BRIEF FASHION IN HIS VIEW THAT --
20 THAT -- THAT HE FELT IT WAS A PRETTY CLEAR-CUT CASE OF A
21 HOMICIDE. I'M NOT SURE IF HE USED THE WORD HOMICIDE, BUT
22 TERMS TO THAT EFFECT. AND THAT WAS PRETTY MUCH IT. IT WAS
23 NOT A LOT OF INFORMATION THAT WENT BACK AND FORTH.
24 Q. NOW, IN TERMS -- ARE YOU FAMILIAR WITH HIS BACKGROUND
25 AND TRAINING?
7
1 A. YES, I AM.
2 Q. IS IT DIFFERENT IN ANY SIGNIFICANT WAY THAN YOURS?
3 A. THE POINT OF DEPARTURE, I THINK, FROM DR. HARE'S AND MY
4 EXPERIENCE AND EXPERTISE IS SPECIFICALLY IN THE AREA OF
5 END-OF-LIFE CARE AND THAT CARE OF PATIENTS WITH FAR-ADVANCED
6 DISEASE, AND IN A NUMBER OF CATEGORIES INCLUDING
7 CARDIOVASCULAR DISEASE, PULMONARY DISEASE, DEMENTIA,
8 TERMINAL SENILITY, AS IT WERE, FAR-ADVANCED CANCER.
9 DR. HARE DOES TREAT PAIN PROBLEMS IN PATIENTS, BUT IS NOT
10 INVOLVED IN THE COMPREHENSIVE CARE OF THESE TYPES OF
11 PATIENTS NOR HAS HE ANY SIGNIFICANT EXPERIENCE IN HOSPICE
12 CARE OR IN AREAS AROUND EPIDEMIOLOGY AND PROGNOSTICATION NOR
13 IN THE FIELD OF MEDICAL ETHICS AS PERTAINS TO THE CARE OF
14 THESE TYPES OF PATIENTS.
15 Q. IS IT -- AS A RESULT OF THIS DIFFERENCE, IS IT YOUR
16 UNDERSTANDING THAT IS WHY HE TALKED TO YOU ABOUT THIS CASE
17 IN THE BEGINNING OF APRIL OF THIS YEAR?
18 A. YES, I BELIEVE SO.
19 Q. DID YOU THEN HAVE CONTACT WITH ANYONE FROM THE
20 PROSECUTION TEAM IN FURTHERANCE OF THIS CONTACT BY DR. HARE?
21 A. TO THE BEST OF MY RECOLLECTION, I HAD A PHONE MESSAGE
22 FROM BETSY BOWMAN ASKING ME TO RETURN A CALL. AND
23 RECOGNIZED THAT SHE WAS THE CONTACT THAT DR. HARE HAD
24 REFERRED TO, AND SO I PHONED HER.
25 Q. AND WHAT HAPPENED IN RESPONSE TO THAT PHONE
8
1 CONVERSATION?
2 A. SHE ASKED IF I WOULD REVIEW THE MEDICAL RECORDS IN THIS
3 CASE IN ORDER TO RENDER AN OPINION WITH THE POSSIBILITY OF
4 FUNCTIONING AS AN EXPERT WITNESS IN THIS CASE.
5 Q. AND DID SHE SUPPLY YOU WITH ANY RECORDS?
6 A. I WAS SUPPLIED WITH -- WITH MEDICAL RECORDS FROM THE
7 GEROPSYCH UNIT WHERE THESE PATIENTS WERE -- WERE INPATIENTS.
8 Q. AND DID YOU REVIEW THEM?
9 A. YES, I DID.
10 Q. AND WHAT WAS THE REASON FOR REVIEWING THEM?
11 A. IN ORDER TO GENERATE AN OPINION REGARDING THE -- THE
12 CARE OF THESE PATIENTS AND WHETHER THERE WAS ANYTHING IN
13 SUPPORT OF THE PROSECUTION'S POSITION, I SUPPOSE.
14 Q. NOW DOCTOR --
15 MAY I APPROACH, YOUR HONOR?
16 THE COURT: YES.
17 Q. (BY MR. STIRBA): I'M GOING TO HAND YOU WHAT, FOR
18 PURPOSES OF THIS HEARING, HAS BEEN MARKED AS DEFENDANT'S
19 EXHIBIT D-1 AND ASK YOU IF YOU CAN IDENTIFY THAT LETTER.
20 AND IF I MAY APPROACH, I HAVE A COPY FOR THE COURT.
21 A. WELL, THESE APPEAR TO BE THE MATERIALS THAT WERE SENT TO
22 ME BY MISS BOWMAN. I'M NOT SURE THAT THIS WAS ALL OF THE
23 MATERIALS, BUT ALL THE MATERIALS THAT ARE HERE WERE RECEIVED
24 BY ME, YES.
25 MR. STIRBA: WE OFFER D-1, YOUR HONOR.
9
1 MR. WILSON: NO OBJECTION, YOUR HONOR.
2 THE COURT: OKAY. IT'S RECEIVED.
3 Q. (BY MR. STIRBA)
4 Q. DR. FINE, IF YOU WOULD LOOK AT THAT LETTER D-1 THAT YOU
5 HAVE IN FRONT OF YOU. WHAT IS THE DATE?
6 A. APRIL 7, 2000.
7 Q. AND I NOTICE TO THE LEFT THERE'S SOME HANDWRITING ON THE
8 DOCUMENT ABOVE YOUR NAME. IS THAT YOUR WRITING?
9 A. YES, IT IS.
10 Q. AND WHAT DOES IT SAY?
11 A. FOCUS ON CAUSATION INDICATIONS.
12 Q. NOW, IT ALSO STATES IN THE BODY OF THE LETTER, IT SAYS
13 IN PARTICULAR, THE STATE WOULD LIKE YOU TO FOCUS ON ISSUES
14 AS TO WHETHER THESE WERE END-OF-LIFE SITUATIONS AND WHETHER
15 THE CONDITION THE PATIENTS WERE IN WAS HANDLED
16 APPROPRIATELY. AND DID YOU DO THAT?
17 A. YES, SIR.
18 Q. AND THAT WAS THE PURPOSE, IN PART, OF YOUR REVIEW?
19 A. YES.
20 Q. NOW ALSO, IF YOU TURN TO PAGE THREE, PLEASE, OF THE
21 LETTER. IT STATES, WE SHOULD BE ABLE TO GET A SET OF CLEAN,
22 TABBED, MARKED RECORDS TO YOU NEXT WEEK AND ALSO PROVIDE YOU
23 WITH A C.D. OF THE SAME. DID YOU RECEIVE A SET OF CLEAN,
24 TABBED, MARKED RECORDS?
25 A. YES.
10
1 Q. WOULD THOSE HAVE BEEN THE HOSPITAL RECORDS OF THE FIVE
2 PATIENTS IN THIS CASE?
3 A. YES.
4 Q. AND THEN ALSO IT STATES -- IF YOU GO BACK TO PAGE ONE.
5 IT STATES, AS I INDICATED, THE MATTER NEEDS TO BE KEPT
6 CONFIDENTIAL. DO YOU RECALL, PRIOR TO RECEIVING THIS
7 LETTER, A CONVERSATION WITH PROSECUTOR BOWMAN RELATING TO A
8 CONFIDENTIALITY OF THIS INFORMATION?
9 A. I DON'T RECALL ANY SPECIFIC ISSUES REGARDING
10 CONFIDENTIALITY, BUT I ASSUME THIS WAS NOT INFORMATION THAT
11 WAS FOR PUBLIC DISCUSSION OR DISCLOSURE. I MEAN, THAT WOULD
12 HAVE BEEN MY OWN -- SHE MAY HAVE SAID THAT, BUT IT WOULD
13 HAVE BEEN MY OWN VIEW THAT THIS IS INFORMATION THAT I SHOULD
14 GUARD AS CONFIDENTIAL.
15 Q. NOW, AFTER YOU RECEIVED THIS LETTER, YOU HAD A MEETING
16 WITH PROSECUTOR BOWMAN AND PROSECUTOR BARLOW AT YOUR HOME;
17 IS THAT RIGHT?
18 A. THAT'S CORRECT.
19 Q. AND THAT WAS ON THE 26TH OF APRIL OF THIS YEAR?
20 A. I BELIEVE SO, YES.
21 Q. LET ME --
22 MAY I APPROACH AGAIN, YOUR HONOR?
23 THE COURT: YES.
24 Q. (BY MR. STIRBA): LET ME SHOW YOU WHAT HAS BEEN MARKED
25 AS D-2 FOR PURPOSES OF THIS PROCEEDING. AND CAN YOU
11
1 RECOGNIZE OR IDENTIFY D-2?
2 A. YES. I RECEIVED THIS AS A LETTER.
3 Q. AND WHAT'S THE DATE OF THAT LETTER?
4 A. APRIL 20TH, 2000.
5 MR. STIRBA: WE'D OFFER D-2, YOUR HONOR.
6 MR. WILSON: NO OBJECTION, YOUR HONOR.
7 THE COURT: OKAY. IT'S RECEIVED.
8 Q. (BY MR. STIRBA): NOW, THIS LETTER IS A LETTER TO YOU
9 FROM ELIZABETH A. BOWMAN, CORRECT?
10 A. YES.
11 Q. AND THERE'S A REFERENCE HERE ABOUT PAYING YOU FOR YOUR
12 SERVICES AND IT STATES THAT, I'VE DISCUSSED PAYMENT FOR YOUR
13 SERVICES AND MEL WILSON HAS AGREED TO REIMBURSE YOU FOR A
14 FLAT FEE OF $3,000 FOR PREPARATION AND TESTIMONY THROUGH
15 TRIAL WITH A CEILING OF $5,000 IF EXTRAORDINARY
16 CIRCUMSTANCES ARISE.
17 DID I READ THAT CORRECTLY?
18 A. THAT IS CORRECT.
19 Q. WHAT WAS YOUR UNDERSTANDING AS TO WHY YOU WERE GOING TO
20 RECEIVE THIS REMUNERATION?
21 A. THIS WAS MEANT TO COMPENSATE ME FOR MY TIME SPENT
22 REVIEWING MEDICAL RECORDS INVOLVED IN TESTIMONY AND MEETINGS
23 AND SO FORTH. THAT IF I THINK BY EXTRAORDINARY -- MY
24 READING OF THAT WAS THAT IF THERE WAS EXTENSIVE TIME
25 INVOLVED BEYOND WHICH I'D SORT OF ANTICIPATED IN TERMS OF
12
1 JUST NUMBERS OF HOURS SPENT.
2 Q. IN OTHER WORDS, THESE WERE THE TERMS UPON WHICH YOU
3 WOULD PROCEED AS AN EXPERT WITNESS; IS THAT RIGHT?
4 A. THAT IS CORRECT.
5 Q. NOW, THE MEETING THAT YOU HELD WITH PROSECUTOR BOWMAN
6 AND BARLOW AT YOUR HOME ON THE 26TH OF APRIL, AT THAT
7 MEETING YOU HAD A SUBSTANTIVE DISCUSSION ABOUT YOUR
8 FINDINGS?
9 A. THAT'S TRUE.
10 Q. HAD YOU HAD ANY SUBSTANTIVE DISCUSSIONS ABOUT ANY
11 OPINIONS YOU HELD OR OTHER FINDINGS THAT YOU MADE BASED UPON
12 YOUR REVIEW PRIOR TO THAT MEETING?
13 A. NO.
14 Q. AND THIS MEETING TOOK PLACE AT YOUR HOME. WAS ANYONE
15 ELSE PRESENT?
16 A. MY WIFE WAS HOME AT THE TIME.
17 Q. WAS SHE PART OF THE CONVERSATION OR WAS SHE JUST SORT OF
18 IN THE BACKGROUND?
19 A. MORE IN THE BACKGROUND. SHE WAS NOT DIRECTLY INVOLVED
20 IN IT.
21 Q. AND WHO INITIATED THIS MEETING?
22 A. I THINK THAT THE WAY IT WENT WAS THAT WHEN I'D FINISHED
23 REVIEWING THE RECORDS, I CONTACTED MISS BOWMAN BY PHONE AND
24 SAID THAT I WAS -- PURSUANT TO OUR PREVIOUS DISCUSSION ABOUT
25 HOW THINGS WOULD GO -- THAT I HAD REVIEWED THE RECORDS. I
13
1 WAS READY TO DISCUSS THEM AND THAT -- THAT I WAS GOING TO BE
2 WORKING AT HOME MOSTLY DOING PAPERWORK ON THIS PARTICULAR
3 DAY OUT OF THE OFFICE AND IT WOULD BE CONVENIENT FOR ME, IF
4 THEY WANTED TO MEET AT MY HOME, THAT WOULD BE FINE. AND SO
5 WE AGREED TO DO THAT.
6 Q. DID YOU HAVE THE RECORDS WITH YOU AT THAT TIME?
7 A. YES, I DID.
8 Q. AND DID YOU MAKE ANY NOTES OR CREATE ANY OTHER MATERIAL
9 TO ASSIST YOU IN TERMS OF SPEAKING ABOUT YOUR REVIEW OF THE
10 RECORDS?
11 A. WELL, I HAD SORT OF SUMMARIZED SOME OF THE EXTRACTED --
12 SOME INFORMATION, SUMMARIZED VERY BRIEFLY EACH OF THE CASES
13 FROM EACH OF THE PATIENTS ON JUST HANDWRITTEN FORM FOR MY
14 REVIEW TO TRIGGER MY RECALL.
15 Q. AND BEFORE THIS MEETING, HAD YOU REVIEWED ALL OF THE
16 RECORDS THAT HAD BEEN PROVIDED TO YOU?
17 A. YES.
18 Q. HOW LONG DID THE MEETING TAKE PLACE?
19 A. I THINK IT WAS ABOUT FOUR HOURS, SOMEWHERE BETWEEN THREE
20 AND FOUR HOURS.
21 Q. CAN YOU JUST GENERALLY IN A GENERAL WAY -- I'LL GET MORE
22 SPECIFIC -- BUT IN A GENERAL WAY TELL THE COURT WHAT WAS
23 DISCUSSED IN THE MEETING?
24 A. WELL, THE FIRST HALF HOUR TO AN HOUR WAS SPENT SORT OF
25 ME LAYING SOME BACKGROUND ABOUT MY EXPERIENCE, MY EXPERTISE,
14
1 MY QUALIFICATIONS SO THAT THEY COULD SORT OF UNDERSTAND THE
2 CONTEXT IN WHICH I WAS EVALUATING THE CLINICAL MATERIALS AND
3 COMING TO THE CONCLUSIONS THAT I DID. AND IN THE LAST --
4 Q. LET ME INTERRUPT YOU THERE, PLEASE. WHY WAS IT
5 IMPORTANT THAT YOU IMPART THAT INFORMATION TO THEM?
6 A. BECAUSE THE CARE OF THESE PATIENTS AND THE INFORMATION
7 THAT I HAD GARNERED FROM READING THE MEDICAL RECORDS SEEMED
8 TO IMPLY AREAS OF THERAPEUTIC INTENT THAT DID NOT SEEM TO BE
9 A FOCUS OF WHAT I UNDERSTOOD FROM MY BRIEF DISCUSSION WITH
10 DR. HARE WHAT HIS FINDINGS WERE NOR FROM THE PREVIOUS
11 DISCUSSIONS WITH MISS BOWMAN HOW THE PROSECUTION WAS VIEWING
12 THIS CASE. AND I THOUGHT THAT, YOU KNOW, AS IN BASICALLY
13 ALL -- IN EVERYTHING YOU DO IN MEDICINE, CONTEXT IS
14 EVERYTHING. AND WITHOUT AN APPRECIATION FOR THE CONTEXT,
15 THERE WAS -- THERE WAS A GREAT POTENTIAL TO MISCHARACTERIZE
16 THE TREATMENT OF THESE PATIENTS.
17 Q. WHAT DO YOU MEAN BY THERAPEUTIC INTENT?
18 A. THE GOALS OF THERAPY AND PLAN OF CARE ALL HAVE IN
19 MEDICINE AN INTENT TOWARDS A CERTAIN OUTCOME. AND, YOU
20 KNOW, AND THIS CAN BE QUITE VARIED FROM FULL CURE TO
21 RENDERING -- TO CAUSING REMISSION, TO BASIC MAINTENANCE AND
22 MANAGEMENT, TO SUPPORTIVE CARE, TO PALLIATIVE CARE OR
23 COMFORT ONLY, MEANS TO WITHDRAWAL OF LIFE SUPPORT. SO A
24 FULL RANGE OF WHAT FALL INTO THE GENERAL RUBRIC OF
25 THERAPEUTIC INTENT. BUT THE COMMON DENOMINATOR FOR ALL OF
15
1 THOSE IS A -- A -- A SALUTARY OR A POSITIVE, PURPOSEFUL
2 ACTION ON BEHALF OF WHAT'S VIEWED AS THE WELL-BEING OF THE
3 PATIENT.
4 Q. DID YOU MAKE, BASED UPON YOUR REVIEW OF THE RECORDS AT
5 THAT TIME, SOME PRELIMINARY ASSESSMENT OR FINDING AS TO
6 THERAPEUTIC INTENT IN THIS CASE?
7 MR. WILSON: YOUR HONOR, I'M GOING TO OBJECT,
8 UNLESS HE DELIVERS MORE FOUNDATION AS TO WHETHER OR NOT THAT
9 WAS A STATEMENT THAT WAS MADE TO THE PROSECUTORS. I WOULD
10 LIKE TO FIND THAT OUT. I'LL WITHDRAW MY OBJECTION FOR RIGHT
11 NOW, YOUR HONOR.
12 THE COURT: OKAY.
13 THE WITNESS: COULD YOU PLEASE REPEAT THE QUESTION?
14 Q. (BY MR. STIRBA): I ASKED YOU, BASED UPON YOUR REVIEW OF
15 THE RECORDS AT THAT TIME, DID YOU COME TO SOME CONCLUSION OR
16 MAKE A FINDING WITH RESPECT TO THERAPEUTIC INTENT?
17 A. IN REVIEWING THE RECORDS OF THESE PATIENTS AS
18 DOCUMENTED, I FOUND WHAT I BELIEVED WAS EVIDENCE OF
19 THERAPEUTIC INTENT CONSISTENT WITH THE GOAL OF THERAPY BEING
20 SUPPORTIVE AND COMFORT CARE FOR WHAT I VIEWED AS PATIENTS
21 WITH FAR-ADVANCED DISEASE IN THEIR TERMINAL PHASE. AND --
22 AND SO I SUPPOSE THE ANSWER TO THE QUESTION WOULD BE YES IN
23 ALL OF THE CASES.
24 Q. DID YOU IMPART THAT INFORMATION TO THE PROSECUTORS IN
25 THAT MEETING?
16
1 A. YES, I DID.
2 Q. NOW, YOU ALSO TESTIFIED ABOUT CONTEXT BEING IMPORTANT.
3 COULD YOU EXPLAIN WHAT YOU MEAN BY THAT?
4 A. WELL, THE CLINICAL CIRCUMSTANCES OF THE PATIENT WILL
5 ALWAYS DICTATE WHAT THE PLAN OF CARE WILL BE COUPLED WITH
6 SPECIFIC GOALS AND A BALANCE OF WHAT ARE VIEWED AS, TO THE
7 BEST OF OUR ABILITY, TO JUDGE OR FORECAST THE BURDENS VERSUS
8 DESIRED BENEFITS COUPLED WITH INFORMED CONSENT; THAT IS, THE
9 PATIENT OR THE PATIENT'S PROXY OR SURROGATE ACKNOWLEDGING
10 AND IN A SENSE GIVING PERMISSION FOR THE ACTIONS WE DO.
11 Q. AND WHY IS THAT IMPORTANT? I BELIEVE YOU TESTIFIED THAT
12 THERE'S A NEED TO UNDERSTAND THAT OR THERE MAY BE A
13 MISCHARACTERIZATION OF THE EVENTS IN THIS CASE?
14 A. YES.
15 Q. WHAT IS THE RELATIONSHIP THERE?
16 A. WELL, IN A PATIENT WITH FAR-ADVANCED DISEASE WHO IS IN
17 THE LAST PHASE OF LIFE FOR WHICH THERE'S NO CURATIVE
18 THERAPY, THEN THE GOALS OF THERAPY AND THE TYPES OF THINGS
19 WE HAVE TO OFFER IN TERMS OF GOOD MEDICINE OR GOOD MEDICAL
20 PRACTICE WILL DIFFER FROM A PATIENT WHO HAS A CURABLE
21 DISEASE OR A DISEASE THAT CAN BE PREDICTABLY PUT INTO
22 REMISSION OR IN CASES WHERE EXPERIMENTAL THERAPY IS -- FOR
23 INSTANCE, ONCOLOGY AND CANCER CARE WHERE THERE MAY BE
24 EXPERIMENTAL THERAPIES THAT ARE UNPROVEN AND YET A PATIENT
25 WITH FULL AND INFORMED CONSENT AGREED TO UNDERGO THESE TYPES
17
1 OF THERAPIES AND SO FORTH. SO WITHOUT A DETAILED
2 UNDERSTANDING OF THE PATIENT'S CIRCUMSTANCES AND THE CONTEXT
3 IN WHICH THEY BOTH LIVE AND THEIR DISEASE RESIDES, WE CANNOT
4 EVALUATE WHETHER GOOD MEDICAL CARE OR NOT GOOD MEDICAL CARE
5 HAS BEEN GIVEN.
6 Q. DID YOU IMPART ESSENTIALLY WHAT YOU TESTIFIED TO ABOUT
7 THE CONTEXT OF THESE CASES FOR THE PROSECUTORS IN THAT
8 MEETING?
9 A. YES, I DID.
10 Q. AND WOULD YOU TELL US, PLEASE, WHAT YOU SAID IN THAT
11 REGARD?
12 A. WELL, BASICALLY I WENT THROUGH EACH OF THE CASES AND
13 POINTED OUT WHERE I BELIEVE THE RECORDS SUPPORTED NOT ONLY
14 EVALUATION OF A LIMITED PROGNOSIS BASED UPON THE EXTENT OF
15 THEIR DISEASE AND -- AND THEIR CO-MORBIDITIES -- MEANING
16 THAT OTHER CONCURRENT MEDICAL CONDITIONS THEY HAD -- BUT
17 VALUATIVE AND QUALITATIVE STATEMENTS REGARDING DISTRESSING
18 SYMPTOMS AND PAIN AND FOCUS ON COMFORT CARE AND AN ATTEMPT
19 TO MITIGATE SYMPTOMS IN ORDER TO PROVIDE COMFORT CARE.
20 Q. DID YOU -- IN YOUR REVIEW OF THE RECORDS, DID YOU
21 IDENTIFY CERTAIN SIGNS OR SYMPTOMS OF PAIN MANIFESTED IN
22 THESE PATIENTS?
23 A. IN THE DESCRIPTIONS GIVEN BY THE NURSES IN THEIR LONG
24 NARRATIVE NOTES, WHICH ARE VERY TYPICAL -- I MEAN OF NURSING
25 NOTES -- AND IN THE PROGRESS NOTES BY THE ATTENDING
18
1 PHYSICIAN, DR. WEITZEL, THERE WERE DESCRIPTIONS OF BEHAVIORS
2 WHICH WERE VERY TYPICAL FOR PATIENTS WITH FAR-ADVANCED
3 DEMENTIA IN TERMS OF THE WAY PAIN AND OTHER DISTRESSING
4 SYMPTOMS ARE USUALLY EXPRESSED, YES.
5 Q. AND EXPLAIN TO US, IF YOU WOULD, HOW THOSE SYMPTOMS
6 MANIFEST THEMSELVES IN TERMINALLY DEMENTED PATIENTS?
7 A. THEY ARE MANIFEST IN A NUMBER OF WAYS AND SOMETIMES ONE
8 AND SOMETIMES MANY; BUT CRYING OUT, FLAILING, AGGRESSIVE
9 BEHAVIOR, BODY RIGIDITY AND STIFFNESS, FACIAL GRIMACING.
10 SOMETIMES PATIENTS BECOME VERY SORT OF INTROVERTED AND
11 BECOME DEPRESSED, AGITATED, STOP EATING, STOP DRINKING. BUT
12 THAT'S ALSO TYPICAL OF --
13 MR. WILSON: I THINK I'M GOING TO OBJECT TO THE
14 NARRATIVE FORM HERE, YOUR HONOR. I THINK IN TERMS OF THE
15 QUESTION, UNLESS IT RELATES TO HIS REVIEW OF THE RECORDS IN
16 RESPECT TO THESE PATIENTS, HE ANSWER JUST A GENERALIZED
17 ANSWER.
18 MR. STIRBA: I THINK HE WAS TRYING TO ANSWER IT
19 WITH RESPECT TO THESE PATIENTS. THAT'S HOW I ASKED IT.
20 THE COURT: WELL, MAYBE YOU COULD CLARIFY THIS IS
21 AS TO QUESTIONS -- I MEAN, WHAT YOUR OPINION IS, WHAT WAS
22 EXPRESSED TO THE ATTORNEYS.
23 THE WITNESS: I THINK I UNDERSTAND. WHAT I WAS
24 LISTING WERE THE SYMPTOMS THAT PATIENTS DO -- WITH
25 FAR-ADVANCED DEMENTIA -- DO EXPRESS IN VERBAL AND NONVERBAL
19
1 FORM WHEN THEY HAVE PAIN AND OTHER DISTRESSING SYMPTOMS.
2 AND IN FACT, THESE ARE THE DESCRIPTIVES AND THE ELEMENTS OF
3 THE DESCRIPTIONS IN THE PATIENTS THAT WERE OF RECORD.
4 Q. (BY MR. STIRBA): DID YOU DISCUSS THOSE DESCRIPTIONS AS
5 YOU FOUND THEM EVIDENCING PAIN WITH THE PROSECUTORS IN THAT
6 MEETING?
7 A. YES, I DID.
8 Q. AND WHAT SIGNIFICANCE WAS IT TO YOU, FOR PURPOSES OF
9 YOUR EVALUATION, THAT YOU SAW IN THE NURSES' NOTES EVIDENCE
10 OF PAIN MANIFESTATION?
11 A. ONCE AGAIN, PLEASE?
12 Q. WHAT SIGNIFICANCE DID THAT HAVE FOR YOU FOR PURPOSES OF
13 YOUR REVIEW IN YOUR EVALUATION?
14 A. THAT THE PLAN OF CARE WHICH INVOLVED THE USE OF
15 MEDICATIONS TO RELIEVE SYMPTOMS WAS WHAT I VIEWED AS GOOD
16 FAITH ATTEMPT AT PROVIDING APPROPRIATE COMFORT MEASURES FOR
17 THESE PATIENTS TO RELIEVE SYMPTOMS.
18 Q. AND DID YOU SIMILARLY DISCUSS WHAT YOU JUST TESTIFIED TO
19 WITH THE PROSECUTORS IN THE MEETING?
20 A. YES.
21 Q. NOW, I BELIEVE I INTERRUPTED YOU. YOU STOPPED AFTER
22 ABOUT THE FIRST HOUR AND THEN I ASKED YOU TO CHARACTERIZE
23 GENERALLY WHAT WAS DISCUSSED, AND I THINK YOU WERE MOVING ON
24 TO WHAT WAS DISCUSSED THEREAFTER. COULD YOU PLEASE TELL THE
25 COURT THEN WHAT WAS DISCUSSED?
20
1 A. WELL, I WENT THROUGH CASE BY CASE THE FIVE CASES AND DID
2 AN ANALYSIS OF WHAT I THOUGHT WAS APPROPRIATE OR NOT
3 APPROPRIATE CARE AND WHAT SORT OF EVIDENCE, AGAIN, I GLEANED
4 FROM THE MEDICAL RECORDS ABOUT HOW TO INTERPRET THE MEDICAL
5 CARE IN THESE CIRCUMSTANCES.
6 Q. AND DID THERE COME A POINT WHERE YOU HAD A DISCUSSION
7 ABOUT WHETHER OR NOT WHAT YOU OBSERVED, IN YOUR OPINION, WAS
8 AS TO -- WHETHER OR NOT THIS WAS A CRIMINAL ACT OR CRIMINAL
9 ACTS ENGAGED IN BY DR. WEITZEL?
10 A. YES.
I CAME TO THE CONCLUSION THAT ALTHOUGH THERE WAS
11 PLENTY OF ROOM FOR INTERPRETATION AND FOR EVALUATION OF
12 STANDARD OF CARE ISSUES IN THESE CASES, THAT I COULD NOT
13 SUPPORT, BASED UPON THE EVIDENCE AT HAND, COULD NOT SUPPORT
14 AN OPINION THAT THESE WERE CRIMINAL ACTS.
15 Q. AND DID YOU TELL THAT TO THE PROSECUTORS IN THE MEETING?
16 A. YES.
17 Q. AND DO YOU RECALL, WAS THERE SOME KIND OF RESPONSE OR
18 DISCUSSION ABOUT THAT IN THE MEETING?
19 A. WELL, BASICALLY THEY ARGUED WITH ME.
20 Q. AND WHAT DO YOU RECALL WAS SAID IN THAT REGARD?
21 A. WELL, I CAN'T REMEMBER THE SPECIFICS, BUT WE JUST WENT
22 BACK AND FORTH WITH NO, THAT CAN'T BE THEIR POSITION. NO,
23 THAT'S NOT THE RIGHT INTERPRETATION. AND -- AND YOU KNOW,
24 THEN THEY FILLED IN STATEMENTS THAT WERE MADE BY DR. HARE
25 ABOUT PHARMACOLOGY AND THESE DRUGS AND THIS AND THAT. AND I
21
1 ESSENTIALLY SAID, YOU KNOW, ALL I CAN DO IS CREATE AN
2 OPINION AS YOU ASKED ME TO BASED UPON THE EVIDENCE AT HAND
3 AND THE EVIDENCE AT HAND SUPPORTS -- THE ONLY REASON I CAME
4 TO THE OPINION I DID WAS BECAUSE THIS IS WHAT WAS SUPPORTED
5 BY THE FACTS OR THE DOCUMENTS THAT I HAD TO REVIEW. AND SO
6 THEY SORT OF ARGUED BACK AND FORTH WHETHER THIS WAS THE
7 RIGHT EVALUATIVE CONCLUSION, AND ALL I COULD DO WAS SAY THE
8 TRUTH AS I SAW IT.
9 Q. AND THAT TRUTH WAS, SIR?
10 A. THAT THERE WAS, YOU KNOW, AS I COULD BEST INTERPRET,
11 THIS SEEMED TO BE A GOOD-FAITH ATTEMPT TO MITIGATE THE
12 SYMPTOMS THAT THESE PATIENTS HAD AND TO PROVIDE PALLIATIVE
13 CARE, AND THAT THERE WAS NO EVIDENCE OF CRIMINAL ACTION.
14 THAT I COULD SEE.
15 Q. AND YOU INFORMED THE PROSECUTORS OF THAT?
16 A. YES.
17 Q. NOW, AT SOME POINT THE MEETING CAME TO AN END; IS THAT
18 RIGHT?
19 A. YES.
20 Q. AND WERE THERE DISCUSSIONS ABOUT YOUR FUTURE INVOLVEMENT
21 IN THIS CASE TOWARDS THE END OF THE MEETING?
22 A. WELL, TO THE BEST OF MY RECOLLECTION, AS I WALKED MISS
23 BARLOW AND MISS BOWMAN TO THE DOOR, I SORT OF HALF JOKINGLY
24 SORT OF SAID, I GUESS, YOU KNOW, BASED UPON OUR DISCUSSION
25 OF THE LAST FEW HOURS, MY TESTIMONY ISN'T GOING TO BE
22
1 WELCOMED BY THE PROSECUTION FOR THIS CASE. AND THEIR
2 RESPONSE WAS, NO, PROBABLY NOT. AND -- AND -- AND THEN AS
3 WE WERE PARTING, I SAID, YOU KNOW, IT SEEMS LIKE MY OPINION
4 IS SO DIVERGENT FROM THE OTHERS THAT YOU HAVE IN TERMS OF
5 THE EXPERTS YOU CALLED, SHOULD I -- WHAT SHALL I DO WITH
6 THIS OPINION AT THIS POINT. SHALL I CONTACT THE DEFENSE AND
7 LET THEM KNOW THAT I HAVE, YOU KNOW, COME TO A VERY
8 DIFFERENT POINT OF VIEW AND THAT ESPECIALLY IN VIEW OF THE
9 FACT THAT I HAVE EXPERTISE THAT IS DIFFERENT FROM THE --
10 FROM THOSE WITNESSES THAT THEY HAVE. AND THEIR RESPONSE
11 WAS, NO. YOU KNOW, WE PREFER THAT YOU DON'T AND YOU ARE
12 CERTAINLY UNDER NO OBLIGATION TO. AND THAT THE DEFENSE WILL
13 KNOW OF YOUR OPINION, YOU KNOW, ANYWAY THROUGH THE PROCESS
14 THAT GOES ON. AND LASTLY, THAT THEY STATED -- AND I CAN'T
15 REMEMBER WHETHER IT WAS BOTH OR MISS BARLOW OR MISS BOWMAN,
16 BUT THE STATEMENT WAS MADE THAT, WE'D APPRECIATE IT IF YOU
17 WOULD NOT -- IF THEY DO CONTACT YOU, WE WOULD APPRECIATE IT
18 IF YOU WOULD JUST SIMPLY NOT BE SO FORTHCOMING WITH YOUR
19 OPINION.
20 Q. AND THE OPINION WOULD BE IN THE BROADEST SENSE WHAT YOU
21 JUST TESTIFIED TO ABOUT GENERALLY A GOOD FAITH ATTEMPT TO
22 PROVIDE PALLIATIVE CARE, AS YOU HAVE SO TESTIFIED?
23 A. YES.
24 Q. AFTER THAT MEETING ON THE 26TH, DID YOU HAVE ANY FURTHER
25 CONTACT WITH ANYBODY FROM THE PROSECUTION TEAM?
23
1 A. I THINK THE NEXT TIME THAT WE MET WAS AT A MEETING IN I
2 THINK AUGUST. THIS WAS AFTER THE TRIAL. THERE WAS A
3 DIVISION OF MEDICAL ETHICS WHICH HAS A MONTHLY EVENING
4 DISCUSSION GROUP WHICH I'VE BEEN A PARTICIPANT IN FOR MANY
5 YEARS, EVER SINCE IT STARTED. AND THIS PARTICULAR EVENING
6 MEETING WAS TO DISCUSS SORT OF THE RESULTS OF THIS CASE,
7 SINCE IT HAD COME TO CONCLUSION AT LEAST IN THE COURT. AND
8 AT THAT MEETING MISS BARLOW WAS IN ATTENDANCE.
9 Q. AND DID YOU HAVE A DISCUSSION WITH HER ABOUT THE FACTS
10 OF THIS CASE AT THAT TIME?
11 A. WELL, I THINK THERE WAS 45 MINUTES OR AN HOUR OR SO THE
12 DISCUSSION WENT ON OF WHICH MISS BARLOW WAS A SIGNIFICANT
13 CONTRIBUTOR BASICALLY STATING -- EXCUSE ME. AND MR. WILSON
14 WAS THERE AS WELL. THERE WERE MANY PEOPLE. IT WAS A LARGE
15 GROUP. AND THE BEST OF MY RECOLLECTION, MISS BARLOW WAS
16 INVOLVED IN THE DISCUSSION SORT OF STATING THE PROSECUTION'S
17 PERSPECTIVE AND POINT OF VIEW ON THIS. AND -- AND YOU KNOW,
18 SOMEWHERE ALONG THE LINE OF 45 MINUTES OR AN HOUR INTO THIS
19 DISCUSSION I SORT OF RAISED MY HAND AND MADE A STATEMENT TO
20 THE FACT THAT I HAD REVIEWED THE MEDICAL RECORDS IN THIS
21 CASE AND HAD ARRIVED AT AN OPINION THAT WAS REALLY QUITE
22 DIFFERENT. I'M NOT SURE IF I USED THE WORD DIAMETRICALLY
23 OPPOSED OR 180 DEGREES, BUT VERY DIFFERENT FROM THAT THAT
24 WAS BEING EXPRESSED AT THE TIME AT THIS MEETING BY MISS
25 BARLOW.
24
1 Q. WAS THERE ANY REFERENCE IN THAT MEETING BEFORE YOU MADE
2 THAT STATEMENT OF THE PROSECUTION'S INVOLVEMENT OF YOU IN
3 THIS CASE PRIOR TO THAT MEETING?
4 A. I DON'T THINK SO.
5 Q. NOW, DOCTOR, YOU'VE HAD A CHANCE, HAVE YOU NOT, TO
6 REVIEW SOME SUBMISSIONS, AFFIDAVITS OF PROSECUTOR BARLOW AND
7 PROSECUTOR BOWMAN, HAVE YOU NOT?
8 A. I REVIEWED AN AFFIDAVIT THAT THEY HAD SUBMITTED TO THE
9 COURT I THINK IN RESPONSE TO AN AFFIDAVIT THAT I HAD
10 SUBMITTED.
11 Q. ALL RIGHT. I JUST WANT TO ASK YOU SOME QUESTIONS ABOUT
12 THE AFFIDAVITS. SPECIFICALLY THERE ARE FACTUAL
13 REPRESENTATIONS MADE ABOUT THE MEETING AND WHAT YOU DID.
14 AND I WANT TO ASK YOU IF THOSE FEW FACTUAL REPRESENTATIONS
15 SQUARE WITH YOUR RECOLLECTION OF EVENTS.
16 IN THE AFFIDAVITS SUBMITTED BY PROSECUTOR BOWMAN, IN
17 PARAGRAPH FOUR OF HER AFFIDAVIT, SHE SPECIFICALLY STATES,
18 DR. FINE DETERMINED THAT NOBODY EVALUATED THESE PATIENTS FOR
19 THE QUESTION, IS THIS PATIENT TERMINAL. SIMILARLY, NOBODY
20 ASSESSED THE PATIENT'S GOALS. HE SUGGESTED WE ASK THE
21 NURSING HOMES HOW THEY HANDLED THESE PATIENTS BEFORE THEY
22 WERE ADMITTED TO THE GEROPSYCHIATRIC UNIT.
23 WHY -- FIRST OF ALL, DID YOU SUGGEST THAT THE NURSING
24 HOMES BE CONTACTED?
25 A. I DON'T REMEMBER SPECIFICALLY THE WAY THAT SORT OF
25
1 DISCUSSION WENT ON, I MEAN, IN THOSE TERMS THEY EXPRESSED
2 EXPLICITLY AS YOU READ THEM. BUT WE DID DISCUSS AGAIN THE
3 OVERALL CONTEXT OF THESE PATIENTS AND ISSUES WHETHER THESE
4 PATIENTS -- AND THERE WAS ANY EVIDENCE OR DISCUSSION ABOUT
5 PROGNOSTIC DETERMINANTS IN THE NURSING HOMES, WHETHER THEIR
6 PHYSICIANS HAD DISCUSSED SORT OF THE NATURAL OR
7 INTERVENTIONAL COURSE OF THESE DISEASE PROCESSES WITH THE
8 FAMILIES SINCE THE PATIENTS WEREN'T THEIR OWN ADVOCATES AT
9 THIS POINT, AND IF THERE WAS A CLEAR UNDERSTANDING OF HOW
10 THESE DISEASE PROCESSES DO PROGRESS TO THE POINT OF THE
11 TERMINAL PHASE.
12 Q. AND WHY WAS THAT IMPORTANT FROM YOUR STANDPOINT IN TERMS
13 OF THE EVALUATION OF THE CONTEXT?
14 A. BECAUSE HAD THOSE DISCUSSIONS NOT TAKEN PLACE, I CAN SEE
15 HOW IT WOULD HAVE BEEN A SIGNIFICANT SURPRISE TO THE
16 FAMILIES AND EVERYBODY INVOLVED WHEN THESE PATIENTS DID, IN
17 FACT, PROGRESS TO THIS POINT IN THEIR DISEASE WHERE THEN A
18 PHYSICIAN IN SORT OF PICKING UP THESE CASES WOULD BE IN A
19 POSITION OF FINDING, YOU KNOW, SORT OF A CRISIS SITUATION
20 AND -- AND WHERE IT WOULD CAUSE SIGNIFICANT CONSTERNATION.
21 AND I HAVE TO ADD, THIS IS NOT ATYPICAL, SADLY.
22 Q. DID YOU EXPRESS THAT IMPORTANCE TO THE PROSECUTION AS
23 YOU JUST TESTIFIED TO IT?
24 A. IN THAT TYPE OF WAY, YES.
25 Q. THEN IN PARAGRAPH FIVE IT SAYS, IT IS MY RECOLLECTION
26
1 DR. FINE DISCUSSED WITH US THAT ROBERT WEITZEL HAD CLEARLY
2 COPIED THE NURSES' NOTES. DID YOU SAY THAT?
3 A. I HAVE ABSOLUTELY NO RECOLLECTION OF ANY DISCUSSION AS
4 TO THAT FORM WHATSOEVER, NO.
5 Q. WAS BUMBLING, PROVIDED D MINUS SERVICES, FAILED TO
6 ASSESS AND PLAN CARE OF THE PATIENTS. WAS NOT A VERY GOOD
7 EVALUATOR OF MEDICAL DISEASE, SHOULD NEVER BE LICENSED TO
8 TAKE CARE OF PATIENTS, BUT PERHAPS HAD NOT CROSSED THE LINE
9 OF COMMITTING HOMICIDES.
10 NOW, THERE'S A NUMBER OF REFERENCES TO STATEMENTS
11 THAT YOU MADE, BUT IN ANY EVENT, DID YOU MAKE THOSE
12 STATEMENTS AND IF NOT, WOULD YOU EXPLAIN WHAT YOU RECALL IN
13 THAT REGARD?
14 A. WHAT I RECALL IS THAT I DID MAKE SOME VERY CRITICAL AND
15 STRONGLY-WORDED COMMENTS REGARDING WHAT I BELIEVED WERE
16 SIGNIFICANT STANDARD-OF-CARE ISSUES IN THE MANAGEMENT OF
17 THESE PATIENTS IN THAT PARTICULAR ENVIRONMENT BY ONE
18 SPECIFIC TREATING PHYSICIAN, IN THIS CASE, DR. WEITZEL. AND
19 THEY WERE STRONGLY-WORDED CRITICAL COMMENTS. BUT THEY WERE
20 ALL FOCUSED AND THEY WERE ALL FOCUSED AT STANDARD-OF-CARE
21 ISSUES. IF I USED THOSE WORDS SPECIFICALLY, I WOULDN'T BE
22 SURPRISED. THERE WAS NO RECORDING GOING ON. I'M NOT -- I
23 DON'T RECALL IF THERE WERE NOTES BEING TAKEN, BUT I COULD
24 SORT OF HEAR MYSELF SAYING THOSE TYPES OF THINGS.
25 Q. AND THE STANDARD OF CARE THAT YOU OBSERVED, BASED UPON
27
1 YOUR REVIEW OF THE RECORDS, I BELIEVE YOU TESTIFIED, IS NOT
2 ATYPICAL?
3 A. I'M SORRY?
4 Q. IN OTHER WORDS, WHAT YOU SAW BASED UPON YOUR REVIEW OF
5 THE RECORDS, I BELIEVE YOU TESTIFIED A FEW MINUTES AGO THAT
6 WHAT YOU SAW WAS NOT ATYPICAL?
7 A. YES, THAT'S CORRECT.
8 Q. AND WHAT DID YOU MEAN BY THAT?
9 A. BY THAT I MEAN THAT IN GENERAL, AS IS WELL-RECOGNIZED
10 NOW AND SUPPORTED BY A LOT OF VALIDATED DATA, THAT WE SIMPLY
11 JUST DO NOT DO A VERY GOOD JOB OF EVALUATING AND CREATING
12 EFFECTIVE TREATMENT PLANS FOR PATIENTS WITH FAR-ADVANCED
13 DISEASE. AND A RESULT OF THAT, THE CARE OF THESE PATIENTS
14 LEAVES GREAT ROOM FOR IMPROVEMENT.
15 Q. AND DID YOU ALSO EXPLAIN THAT TO THE PROSECUTORS AT THE
16 MEETING?
17 A. YES.
18 Q. AND THEN, PARAGRAPH SIX, IT IS MY RECOLLECTION THAT MISS
19 BARLOW DISCUSSED WITH DR. FINE THAT EXPERT WITNESSES COULD
20 NOT EXPRESS TO THE JURY OPINIONS AS TO WHETHER THESE WERE
21 HOMICIDES OR NOT. THAT IT WOULD BE THE SOLE PROVINCE OF THE
22 JURY TO APPLY THE FACTS OF THE LAW TO MAKE THAT
23 DETERMINATION.
24 DID ANYBODY DISCUSS THAT WITH YOU?
25 A. NO, AND I CLEARLY UNDERSTOOD THAT THE WAY THE
28
1 PROCEEDINGS OF A TRIAL GO IS THAT THIS QUESTION AND ANSWER
2 PROCESS, AND SO I'M NOT SURE WHERE THAT CAME FROM.
3 Q. PARAGRAPH SEVEN, DR. FINE QUESTIONED WHY THERE WAS SUCH
4 A HIGH DOSE OF OPIATES PRESCRIBED ON MR. ALLDREDGE AND THAT
5 THE USE OF OPIATES IN THIS OPIATE-NAIVE PATIENT PROBABLY
6 HASTENED HIS DEATH. I BELIEVE HE INDICATED HE WOULD HAVE
7 WANTED TO REVIEW THE X-RAYS ON MR. ALLDREDGE BEFORE MAKING
8 ANY FINAL ASSESSMENTS.
9 DO YOU RECALL THOSE STATEMENTS OR THE CONTEXT IN WHICH
10 THEY MAY HAVE BEEN MADE?
11 A. YES. I MEAN, IN THIS CASE, I DO REMEMBER THAT THERE
12 WAS -- I DID NOT HAVE THE X-RAYS SUBMITTED TO ME AS PART OF
13 THE MEDICAL RECORDS AND THAT THERE WERE STATEMENTS ABOUT
14 X-RAY FINDINGS SUPPORTING A DIAGNOSIS OF PNEUMONIA, WHICH IS
15 VERY TYPICALLY AN END-STAGE PROCESS IN THESE TYPES OF
16 PATIENTS. AND SO THAT WOULD HAVE BEEN HELPFUL INFORMATION
17 TO REVIEW.
18 I ALSO DO BELIEVE I MADE THE STATEMENT THAT IN
19 REVIEWING THE PRESCRIPTION ADMINISTRATION OF ANALGESICS IN
20 THIS CASE, THAT I DID VIEW THIS AS BEING A HIGHER DOSE THAN
21 I PROBABLY WOULD HAVE PRESCRIBED MYSELF AND HOW I WOULD HAVE
22 TITRATED ANALGESIA IN THIS CASE, AND THAT ALTHOUGH NOT A
23 CRIMINAL ACT PER SE, AGAIN A STANDARD-OF-CARE ACT, THERE WAS
24 SOME EVIDENCE, AT LEAST IN MY MIND, OR SOME -- I WOULD
25 PROBABLY HAVE RENDERED AN OPINION THAT MORE LIKELY THAN NOT
29
1 THAT THE PRESCRIPTION OF ANALGESICS IN THIS CASE COULD WELL
2 HAVE HASTENED THIS PATIENT'S DEATH.
3 Q. AND GIVEN THAT OPINION AND GIVEN THE CIRCUMSTANCE THAT
4 YOU JUST DESCRIBED, DID YOU COMMENT FURTHER ABOUT PROPRIETY
5 OF THE CARE OR THE NEED FOR PAIN ANALGESICS WITH RESPECT TO
6 MR. ALLDREDGE?
7 A. I DON'T RECALL QUESTIONING WHETHER THERE WAS A NEED FOR
8 ANALGESICS; MORE OF SORT OF THE MANNER IN WHICH THEY WERE
9 GIVEN AND THE GENERAL MILIEU OF THE SORT OF THE END-OF-LIFE
10 CARE IN ALL THESE CASES THAT I BELIEVED WAS SOMEWHAT LIMITED
11 AND IN MY VIEW WAS INADEQUATE IN THAT IT DID NOT REFLECT
12 WHAT I THOUGHT WERE THE HIGHEST STANDARDS OF CARE FOR DYING
13 PATIENTS; MAINLY, COMPREHENSIVE PALLIATIVE BY INDIVIDUALS
14 WHO ARE TRAINED AND EXPERT AT PROVIDING THIS TYPE OF CARE.
15 BUT AGAIN, I HAVE TO QUALIFY IT BY SAYING THIS IS NOT
16 ATYPICAL. THIS IS, IN FACT, MORE IN LINE WITH THE STANDARD
17 OF CARE IN NOT ONLY THIS COMMUNITY BUT MOST COMMUNITIES
18 AROUND THE COUNTRY.
19 Q. AND HOW DO YOU HAVE EXPERTISE SUCH THAT YOU CAN COMMENT
20 ABOUT WHAT GOES ON, FOR EXAMPLE, IN THE STATE OF UTAH IN
21 TERMS OF PALLIATIVE CARE?
22 A. WELL, I'VE BEEN VERY INVOLVED IN EVALUATING AND BEING
23 INVOLVED IN -- IN TRYING TO WORK TO EDUCATE AND IMPROVE
24 END-OF-LIFE CARE SERVICES.
25 MR. WILSON: YOUR HONOR, I'M GOING TO IMPOSE AN
30
1 OBJECTION AT THIS TIME. DOESN'T RELATE TO THE CONVERSATION
2 UNLESS COUNSEL CAN RELATE IT TO THE CONVERSATION.
3 THE COURT: WHY DON'T WE TIE IT IN?
4 MR. STIRBA: WELL, I'M RELATING IT BECAUSE HE'S
5 TESTIFIED AS TO WHAT HE HAS TOLD THE PROSECUTORS. IT'S
6 FOUNDATIONAL IN TERMS OF THE QUALIFICATIONS HE HAS TO MAKE
7 THAT STATEMENT, YOUR HONOR.
8 THE COURT: OKAY. GO AHEAD.
9 Q. (BY MR. STIRBA): YOU MAY CONTINUE.
10 A. COULD WE READ BACK WHERE I WAS IN MY STATEMENT?
11 Q. LET ME RESTATE THE QUESTION. THE QUESTION I ASKED YOU,
12 YOU HAVE NOW TESTIFIED AS TO THE FINDINGS THAT YOU MADE WITH
13 RESPECT TO DR. WEITZEL'S TREATMENT AND YOU FOUND THAT NOT
14 ATYPICAL. YOU TESTIFIED TO THAT IN TERMS OF WHAT YOU SEE IN
15 THIS COMMUNITY FOR PURPOSES OF END-OF-LIFE CARE. MY
16 QUESTION WAS, WOULD YOU JUST TELL THE COURT UPON WHICH
17 EXPERTISE YOU DRAW SUCH THAT YOU CAN MAKE THAT STATEMENT?
18 A. YES. I HAVE BEEN INVOLVED IN EVALUATIVE AND EDUCATIONAL
19 PROCESS THROUGHOUT BOTH THE GREATER SALT LAKE COMMUNITY AND
20 THE STATE IN TERMS OF LOOKING AT HOW WE PROVIDE END-OF-LIFE
21 CARE SERVICES AND INCLUDING DOING SOME SURVEY WORK, SOME OF
22 WHICH HAS BEEN PUBLISHED THROUGH UTAH MEDICAL ASSOCIATION
23 PUBLICATIONS AND OTHERS.
24 I'VE ALSO BEEN INVOLVED WITH THE FORMATION OF A
25 PROACTIVE ATTEMPT AT MAKING IMPROVEMENTS THROUGH THE
31
1 INITIALLY UTAH PEER REVIEW ORGANIZATION WHICH WAS THE
2 MEDICARE INTERMEDIARY FOR UTAH AND NEVADA WHICH HAS
3 SUBSEQUENTLY BECOME HEALTH INSIGHT TO CREATE WORKING GROUPS
4 TOWARDS MAKING SUCH IMPROVEMENTS.
5 Q. BASED UPON YOUR REVIEW OF THE MEDICAL RECORDS OF MR.
6 ALLDREDGE AND THE OTHERS, DID QUESTIONS ARISE IN THAT
7 MEETING ABOUT WHETHER IT WAS YOUR OPINION THAT THEY WERE IN
8 A TERMINAL STATE UPON ADMISSION?
9 A. YES.
10 Q. AND WHAT DID YOU TELL THE PROSECUTORS IN THAT REGARD?
11 A. WHAT I STATED WAS THAT BASED UPON THE INFORMATION AT
12 HAND IN THE MEDICAL RECORDS, I VIEWED THAT ALL OF THESE
13 PATIENTS WERE DEFINITIONALLY AT END STAGE; NAMELY, TERMINAL,
14 AND THE ONLY SORT OF PROCEDURAL OR MAYBE FUNCTIONAL -- MAYBE
15 THE BEST WORD IS OPERATIONAL -- DEFINITION OF TERMINAL THAT
16 WE HAVE IS THAT ACTUALLY LEGISLATED BY THE -- BY CONGRESS IN
17 THE OMNIBUS RECONCILIATION ACT OF 1982 THAT CREATED A
18 HOSPICE -- THE MEDICARE HOSPICE BENEFIT THAT DEFINED A
19 PATIENT HAVING TERMINAL PROGNOSES AS ONE WITH SIX MONTHS, IF
20 THE DISEASE RAN ITS USUAL COURSE.
21 Q. WAS THERE CONTENTION FROM EITHER PROSECUTOR BARLOW OR
22 BOWMAN CONCERNING THAT OPINION WHICH YOU EXPRESSED TO THEM
23 CONCERNING THE TERMINAL NATURE OF THESE PATIENTS?
24 A. I THINK GENERALLY WHAT THEY CONTESTED WAS THAT OTHER
25 EXPERTS WHO THEY HAD SPOKEN WITH, INCLUDING DR. HARE, ALL
32
1 DID NOT VIEW THESE PATIENTS AS TERMINAL. BUT I'M NOT SURE.
2 I DON'T RECALL THAT THIS WAS LARGELY DEBATED, PARTICULARLY
3 IN THE CONTEXT OR DISCUSSION THAT DAY.
4 Q. NOW, IN PARAGRAPH EIGHT THERE'S A STATEMENT THAT'S
5 ATTRIBUTED TO YOU THAT BASED UPON YOUR REVIEW OF THE RECORDS
6 OF JUDITH LARSEN, THERE'S A STATEMENT, BUT THAT THE DOSES OF
7 MORPHINE WEITZEL ORDERED ON JANUARY 3RD WERE UNEXPLAINED.
8 DID YOU MAKE SUCH A STATEMENT IN THAT REGARD?
9 A. I'M NOT SURE WITHOUT LOOKING AT THE MEDICAL RECORDS IN
10 FRONT OF ME. I HAVE NO -- I CAN'T COMMENT ON THAT COMMENT
11 PARTICULARLY.
12 Q. OKAY. AND THEN THERE'S A DISCUSSION -- I'M SORRY.
13 THERE'S PARAGRAPH NINE THERE'S A STATEMENT THAT CONCERNS
14 MARY CRANE. I DO NOT RECALL THAT DR. FINE HAD REVIEWED THE
15 RECORDS OF PATIENT LYDIA SMITH AT THE TIME OF OUR INTERVIEW.
16 DO YOU RECALL REVIEWING THOSE RECORDS AT THAT TIME?
17 A. YES. I HAD RECORDS ON ALL FIVE PATIENTS.
18 Q. AND RECALL ONLY WITH RESPECT TO PATIENT MARY CRANE THAT
19 HE DISCUSSED MISS CRANE'S FISTULA. DO YOU RECALL HAVING A
20 GREATER DISCUSSION ABOUT THE CIRCUMSTANCES OF MARY CRANE
21 OTHER THAN THE FACT THAT SHE HAD A FISTULA?
22 A. WELL, JUST LIKE THE OTHER PATIENTS, I WENT THROUGH THE
23 EVALUATIVE INFORMATION THAT I HAD FROM THE CHARTS AND I
24 THINK IF THERE WAS ANY DISCUSSION, IT FOCUSED ON THE
25 FISTULA, IT WAS THE QUESTION REGARDING WHAT WOULD BE THE
33
1 CLINICAL INDICATIONS OR THE CIRCUMSTANCES WHY A PATIENT --
2 WHY MARY CRANE WOULD HAVE PAIN AND INDICATIONS FOR PAIN
3 MANAGEMENT, AND THAT WAS PART OF IT. AND OF COURSE, IN MY,
4 YOU KNOW, READING OF THE RECORD THIS CERTAINLY IS A CLINICAL
5 CONDITION THAT CAN CAUSE SIGNIFICANT DISTRESS, PAIN AND
6 OTHER FORMS OF DISTRESS IN A PATIENT. AND SECONDLY, WHAT I
7 FOUND AT ODDS WAS THE MEDICAL EXAMINER'S REPORT THAT THE
8 ONLY MENTION MADE TO EXAMINATION AT THE TIME OF AUTOPSY WAS
9 THAT THIS WAS NORMAL GENITALIA FOR THE PATIENT'S AGE. AND I
10 FOUND THAT TO BE AT ODDS WITH THE CLINICAL CIRCUMSTANCES OF
11 THE PATIENT.
12 Q. DID YOU MAKE SOME OBSERVATION IN REFERENCE TO THE
13 MEDICAL EXAMINER'S REPORT IN LIGHT OF WHAT YOU JUST
14 TESTIFIED TO THAT THERE WAS A FAILURE TO FIND THE FISTULA ON
15 AUTOPSY?
16 A. WELL, I THINK I PROBABLY VERBALIZED THAT I WONDER
17 WHETHER IN FACT THE EXAMINER HAD INDEED ACTUALLY EXAMINED
18 THE PATIENT, DID A GENITAL EXAM, OR HAD JUST SIMPLY MARKED
19 IT AS NORMAL WITHOUT HAVING ACTUALLY DONE THAT EXAM, OR IF
20 THEY DID EXAMINE THE PATIENT -- IT WAS AT THIS POINT THE
21 DECEASED -- WHETHER IT WAS AN ADEQUATE ENOUGH EXAM TO COME
22 TO, YOU KNOW, THE CONCLUSION THAT AT THIS POINT OR PREVIOUS
23 POINT A CONSULTANT OR A GYNECOLOGIST EXAMINED THE PATIENT IN
24 THE GEROPSYCHIATRIC UNIT AND HAD, YOU KNOW, HAD FOUND THIS
25 FINDING. SO YOU KNOW, I WASN'T SURE WHAT TO MAKE OF IT
34
1 OTHER THAN IT WAS CERTAINLY A SIGNIFICANT DISCREPANCY. AND
2 THE CONCLUSION I BELIEVE IN THIS MEDICAL EXAMINER'S REPORT
3 THAT THERE WAS NO EVIDENCE OF DISEASE THAT WOULD HAVE LED TO
4 THIS PATIENT'S DEMISE OR OTHERS WHO HAD COMMENTED THAT THERE
5 WAS NO INDICATION FOR PAIN MANAGEMENT WERE IN ERROR, BASED
6 UPON THE MEDICAL EXAMINER'S FINDING.
7 Q. AND DID YOU IMPART THAT INFORMATION TO THE PROSECUTORS
8 IN THE MEETING?
9 A. IN ONE FORM OR ANOTHER I WOULD THINK THAT WAS SORT OF
10 THE CONTENT OF THE DISCUSSION, YES.
11 Q. WAS THERE A RESPONSE BY EITHER ONE OF THEM TO YOUR
12 OBSERVATIONS ABOUT THE FAILURE OF THE FISTULA TO BE
13 IDENTIFIED IN THE AUTOPSY REPORT?
14 A. I DO REMEMBER DISTINCTLY BECAUSE IT SORT OF STOOD OUT
15 AND IT WAS SORT OF SAID IN A SORT OF A HUMOROUS MANNER, BUT
16 NEVERTHELESS IT WAS STATED BY MISS BOWMAN SHE HAD PREVIOUSLY
17 BEEN A DEFENSE COUNSEL AND WHEN WORKING WITH THESE
18 PARTICULAR MEDICAL EXAMINERS SHE HAD SIMILAR DIFFICULTIES
19 WITH THEM, AND IT CAUSED HER NO END OF GRIEF.
20 Q. PARAGRAPH TEN THERE'S A STATEMENT BY HER WHERE SHE SAYS,
21 I REMEMBER TELLING DR. FINE WE COULD NOT PREVENT HIM FROM
22 DISCUSSING THE CASES WITH MR. STIRBA. I NEVER ADVISED HIM
23 TO DISCUSS THE CASE WITH DEFENSE COUNSEL.
24 IS THAT ACCURATE?
25 A. I'M NOT SURE YOUR NAME EVER CAME INTO PLAY. I DON'T
35
1 RECALL HEARING OF YOUR NAME IN REGARDS TO THIS CASE
2 PARTICULARLY. BUT, YOU KNOW, TO THE BEST OF MY RECOLLECTION
3 AS I PREVIOUSLY PROPOUNDED A FEW MINUTES AGO, THAT'S HOW THE
4 CONVERSATION WENT.
5 Q. AND THEN FINALLY IN PARAGRAPH 11, IT IS MY RECOLLECTION
6 THAT WE DID ASK DR. FINE NOT TO GO PUBLIC WITH THIS
7 INFORMATION BECAUSE THAT COULD JEOPARDIZE ROBERT WEITZEL'S
8 RIGHT TO HAVE A FAIR TRIAL.
9 DO YOU REMEMBER ANYBODY TELLING YOU NOT TO GO PUBLIC?
10 A. NO.
11 Q. ANY CONVERSATION LIKE THAT EVER TAKE PLACE?
12 A. NOT TO MY RECOLLECTION, NO.
13 Q. BUT INFORMED HIM, ALTHOUGH IT WAS OUR PREFERENCE THAT HE
14 DID NOT SPEAK OUT, WE COULD NOT PREVENT HIM FROM DOING SO.
15 DO YOU REMEMBER ANY CONVERSATION WHERE SOMEBODY ADDRESSED
16 YOU SPEAKING OUT?
17 A. NO.
18 Q. IN FACT, WHEN YOU WERE ASKED TO INITIALLY PARTICIPATE AS
19 AN EXPERT FOR THE STATE IN THIS CASE, COULD YOU DESCRIBE
20 YOUR ORIENTATION IN TERMS OF WHETHER YOU WERE WILLING TO DO
21 THAT OR NOT TO THE COURT, JUST SO THAT THAT'S CLEAR FOR THE
22 RECORD?
23 A. WELL, FOR BETTER OR FOR WORSE, MY SCHEDULE HAS BEEN --
24 I'VE BEEN WORKING ESSENTIALLY 80 TO 100 HOUR WEEKS AND THE
25 IDEA OF TAKING ON MORE WORK IN THIS AREA WAS NOT ONE THAT I
36
1 WELCOMED. BUT SINCE DR. HARE, AS A CLOSE COLLEAGUE, HAD
2 REFERRED ME, AND THIS WAS PRESENTED AS A VERY IMPORTANT
3 CASE, THAT I DID AGREE TO BECOME INVOLVED WITH THE
4 PROSECUTION AT THAT POINT.
5 Q. IN PROSECUTOR BARLOW'S AFFIDAVIT SUBMITTED IN OPPOSITION
6 TO OUR MOTION, IN PARAGRAPH FOUR SHE STATES THAT YOU SPOKE
7 AT LENGTH ABOUT YOUR INVOLVEMENT IN END-OF-LIFE CARE ISSUES
8 AND ABOUT, HIS ACTIVITIES INCLUDING TESTIFYING AT
9 CONGRESSIONAL HEARINGS.
10 HAVE YOU EVER TESTIFIED AT A CONGRESSIONAL HEARING?
11 A. NO.
12 Q. DID YOU MAKE SUCH A STATEMENT TO MISS BARLOW OR MISS
13 BOWMAN?
14 A. NO. I WOULD NEVER HAVE MADE SUCH AN ERRONEOUS
15 STATEMENT. FIRST OF ALL, BECAUSE IT WOULD NOT HAVE BEEN THE
16 TRUTH AND SECONDLY, BECAUSE THAT WOULD BE VERY EASY TO TRACK
17 DOWN AND DETERMINE WHETHER I HAD OR NOT. THESE ARE MATTERS
18 OF RECORD. SO I CERTAINLY DID NOT MAKE SUCH A STATEMENT.
19 Q. PARAGRAPH FIVE PROSECUTOR BARLOW STATES, DR. FINE MADE
20 IT CLEAR THAT HE DID NOT FEEL THAT THE DEFENDANT'S CARE OF
21 THESE PATIENTS WAS APPROPRIATE, BUT HE FELT THAT THE CASE
22 WAS ONE OF MEDICAL MALPRACTICE RATHER THAN CRIMINAL
23 BEHAVIOR. HE EXPRESSED CONCERN THAT PURSUING THIS CRIMINAL
24 CASE WOULD BE DETRIMENTAL TO HIS AGENDA WHICH WAS TO PROVIDE
25 PROPER PAIN MANAGEMENT, INCLUDING MORPHINE, FOR END-OF-LIFE
37
1 CARE.
2 DID YOU EVER STATE IN THAT MEETING ANYTHING RELATING TO
3 AN AGENDA THAT YOU HAD IN TERMS OF IT COLORING YOUR OPINION
4 OR INFLUENCING YOUR EVALUATION?
5 A. NO, SIR.
6 Q. DID YOU HAVE SUCH AN AGENDA?
7 A. THE ONLY AGENDA THAT I HAVE IS A) TO TELL THE TRUTH. B)
8 TO REPRESENT AND ADVOCATE FOR THE WELL-BEING OF PATIENTS AND
9 C) TO UPHOLD THE INTEGRITY OF THE MEDICAL PROFESSION. AND
10 THAT'S THE AGENDA WITH EVERY PROFESSIONAL IN THEIR
11 DESIGNATED ROLE IN ORDER TO BE A RESPONSIBLE PROFESSIONAL.
12 Q. DO YOU RECALL EVEN USING THE WORD "AGENDA" IN THIS
13 MEETING?
14 A. NO, SIR.
15 Q. PARAGRAPH SIX, PROSECUTOR BARLOW SAYS, AT THE CONCLUSION
16 OF THE MEETING, I TOLD DR. FINE THAT WE MAY NOT BE USING HIM
17 AS A WITNESS.
18 IS THAT STATEMENT CORRECT?
19 A. WELL, IT WAS THAT SORT OF REPARTEE THAT TOOK PLACE AT
20 THE END WHERE I SUGGESTED THAT, BASED UPON MY DIFFERENCE OF
21 OPINION THAT THEY WERE INITIALLY APPARENTLY SEEKING, THAT I
22 WAS GUESSING THAT I WOULD NOT BE USED AS A WITNESS AND THEY
23 CONFIRMED THAT IN ONE WAY OR ANOTHER, YES.
24 Q. DID YOU UNDERSTAND AT THAT TIME AS THEY LEFT THAT THE
25 STATE WOULD NOT BE USING YOU AS A WITNESS?
38
1 A. IT WAS NOT STATED DEFINITIVELY, NO.
2 Q. I TOLD DR. FINE THAT HE DID NOT HAVE TO SPEAK TO ANYONE
3 INCLUDING DEFENSE COUNSEL, BUT IT WAS UP TO HIM WHETHER HE
4 SPOKE TO COUNSEL.
5 DID MISS BARLOW MAKE THAT STATEMENT TO YOU?
6 A. NO, NOT IN THOSE WORDS.
7 Q. WHAT WORDS DO YOU RECALL SHE USED?
8 A. I MEAN, THE ONES THAT I PREVIOUSLY STATED. THAT THEY
9 WOULD APPRECIATE IT -- THAT THEY WOULD -- YOU WOULD KNOW OR
10 THE DEFENSE COUNSEL WOULD KNOW MY OPINION AND THAT IF I WAS
11 APPROACHED THAT THEY WOULD APPRECIATE IT IF I WAS NOT SO
12 FORTHCOMING WITH MY OPINION.
13 Q. THAT IS ALL I HAVE. THANK YOU.
14 THE COURT: WHY DON'T WE TAKE A -- HOW MUCH TIME
15 DOES THE REPORTER NEED? LET'S COME BACK AT 10:30.
16 (COURT IS IN RECESS.)
17 THE COURT: WE'RE BACK ON THE RECORD. MR. WILSON,
18 IF YOU LIKE TO CROSS EXAMINE.
19 CROSS-EXAMINATION
20 THE COURT: FOR THE RECORD, WHEN I WAS LOOKING AT
21 THAT CLOCK, IT IS NOT ACCURATE.
22 Q. (BY MR. WILSON): GOOD MORNING, DR. FINE.
23 A. GOOD MORNING.
24 Q. JUST A COUPLE OF PRELIMINARY QUESTIONS. WHEN WERE YOU
25 FIRST CONTACTED BY MR. STIRBA'S OFFICE OR HOW DID THIS
39
1 CONTACT TAKE PLACE?
2 A. I THINK I RECEIVED A PHONE MESSAGE THAT MR. STIRBA HAD
3 CALLED, AND THIS PROCEED THAT EVENING ETHICS DISCUSSION
4 GROUP IN AUGUST. I CAN'T REMEMBER EXACTLY THE DATE.
5 THE COURT: WHEN YOU SAY -- AFTER OR BEFORE?
6 THE WITNESS: AFTER THAT DISCUSSION GROUP. I GUESS
7 IT CAME TO HIS ATTENTION THAT I HAD DISCUSSED WITH THE GROUP
8 THAT I HAD AN OPINION THAT WAS AT VARIANCE WITH MISS
9 BARLOW'S AND SO HE CONTACTED ME TO MEET WITH ME.
10 Q. (BY MR. WILSON): AND SO YOU MET WITH HIM?
11 A. I AGREED TO MEET WITH HIM, YES.
12 Q. HOW MANY OCCASIONS HAVE YOU MET WITH HIM?
13 A. WE MET ON THAT OCCASION. WE MET ONE OTHER TIME AGAIN IN
14 MY OFFICE AND THEN WE MET YESTERDAY MORNING, SO THREE.
15 Q. SO THERE'S BEEN THREE MEETINGS?
16 A. YES.
17 Q. AND THE MEETINGS OCCURRED -- THE FIRST MEETING OCCURRED
18 RIGHT AFTER THE ETHICS COMMITTEE MEETING SOMETIME IN AUGUST?
19 A. ONE WEEK, TWO WEEKS, THREE WEEKS. IT WAS SOMETIME
20 THEREAFTER.
21 Q. AND THE SECOND MEETING TOOK PLACE WHEN?
22 A. I THINK AFTER -- SOMETIME AFTER THE SENTENCING.
23 Q. AND IN RESPECT TO THE FIRST MEETING, WERE YOU REQUESTED
24 TO WRITE A LETTER ON BEHALF OF THE DEFENDANT FOR HIS
25 SENTENCING PURPOSES?
40
1 A. AFTER -- AFTER WE TALKED -- I CAN'T REMEMBER. IT WAS A
2 PHONE CALL OR AT THE END OF THAT MEETING, HE MADE ME
3 AWARE -- MR. STIRBA MADE ME AWARE THAT SENTENCING WAS GOING
4 TO OCCUR AND ASKED IF I WOULD BE WILLING TO EXPRESS MY
5 OPINION ON PAPER AND SUBMIT THAT OPINION TO THE COURT BY WAY
6 OF JUDGE KAY, AND I AGREED TO DO THAT.
7 Q. AND THAT LETTER IS DATED SEPTEMBER THE 5TH; IS THAT
8 ACCURATE? MAYBE I SHOULD MARK IT FOR IDENTIFICATION
9 PURPOSES. I DON'T HAVE A COPY OF THIS, YOUR HONOR.
10 THE COURT: I THINK IT'S ATTACHED TO --
11 MR. WILSON: IT WAS IN THE FILE.
12 Q. I SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT 3 AND
13 ASK YOU TO TAKE A LOOK AT IT, IF YOU WOULD, PLEASE.
14 A. THE QUESTION WAS, DO I RECOGNIZE IT?
15 Q. YES.
16 A. YES, I DO.
17 Q. AND THAT IS YOUR LETTER?
18 A. YES, SIR.
19 Q. AND IN RESPECT TO THAT LETTER, SIR, YOU MAKE A COUPLE OF
20 COMMENTS. DRAWING YOUR ATTENTION FIRST TO I THINK IT'S
21 MIDWAY DOWN THE PAGE YOU TALK ABOUT THE DEFENDANT'S ACTIONS,
22 AS I RECALL. MAYBE I COULD JUST -- MAYBE I COULD TAKE IT
23 BACK AND JUST READ IT TO YOU.
24 YOU SAY, I CANNOT HELP BUT CONCLUDE THAT CRIMINALIZING
25 DR. WEITZEL'S BEHAVIORS AND THE CONSEQUENCES OF HIS ACTIONS,
41
1 MEDICALLY NEGLIGENT AS THEY MAY HAVE BEEN, IS NOT THE RIGHT
2 NO LESS PRODUCTIVE PATH.
3 DOES THAT ACCURATELY REFLECT YOUR SENTIMENTS TODAY?
4 A. WELL, THOSE ARE THE WORDS I DID WRITE AS YOU JUST READ
5 THAT AND --
6 Q. AND THEY APPROPRIATELY REFLECTED YOUR SENTIMENTS AT THAT
7 TIME; IS THAT CORRECT?
8 A. YES.
9 Q. YOU GO ON FURTHER TO SUGGEST TO THE COURT THAT IN THE
10 BODY OF THE LETTER THAT, AT THE VERY LEAST, EXHAUSTIVE
11 ANALYSIS, CIRCUMSPECTION -- EXCUSE ME. LET ME REREAD THAT,
12 IF I MIGHT. YOU INDICATE IN THE CONTEXT OF THE LETTER THAT,
13 THERE SHOULD BE A SCRUPULOUS INVESTIGATION OF THE CASE BY A
14 PROFESSIONAL LICENSING BOARD THROUGH CONSULTANT EXPERTS
15 WHOSE HELP IT COULD HAVE ENLISTED, AND AT THE VERY LEAST
16 SHOULD EXHAUSTIVE ANALYSIS, CIRCUMSPECTION AND DEBATE, THOSE
17 GROUNDS WOULD HAVE BEEN MADE FAR MORE SENSE.
18 ARE YOU SUGGESTING, SIR, THAT BEFORE EVERY CASE IS
19 PROSECUTED CRIMINALLY, IT OUGHT TO BE SUBMITTED TO SOME KIND
20 OF A MEDICAL BOARD FOR ANALYSIS?
21 A. WHAT I MEANT WAS THAT TYPICALLY WHEN THERE ARE ISSUES
22 AND CONCERNS REGARDING MEDICAL ACTIONS AND EVALUATION OF
23 MEDICAL MALFEASANCE, PERHAPS AS I USED THE CONDITIONAL,
24 THERE MAY HAVE BEEN, THAT TYPICALLY THE WAY THAT THESE
25 PROCEEDINGS GO -- AND I'M AWARE FROM THIS IN MY POSITION AS
42
1 HAVING CHAIRED THE QUALITY REVIEW COMMITTEE FOR THE UTAH
2 PEER REVIEW ORGANIZATION -- THAT TYPICALLY WE SEEK OUT
3 EXPERT OPINIONS TO EVALUATE WHETHER IN FACT THERE'S ANY, YOU
4 KNOW, ANY SIGNIFICANT CONCERNS OR ISSUES TO PROCEED WITH OR
5 NOT.
6 Q. WERE YOU AWARE THAT SUCH PROCEEDINGS HAD BEEN CONDUCTED
7 IN RESPECT TO DR. WEITZEL'S LICENSING PRIOR TO THE TIME OF
8 THIS PROSECUTION?
9 A. I WAS AWARE THAT SOME EVALUATION HAD TAKEN PLACE, BUT
10 AGAIN, NOT PARTICULARLY IN THE CONTEXT OF AN EVALUATION
11 AROUND END-OF-LIFE CARE ISSUES PER SE.
12 Q. AND SIR, DO YOU HAVE ANY TRAINING AS IT RELATES TO
13 EVALUATION OF A CASE FROM THE STANDPOINT OF CRIMINAL
14 CONDUCT?
15 A. NO. I'M NOT AN ATTORNEY OR A PROSECUTOR, NO, SIR.
16 Q. AND SO BASICALLY WHEN WE TALK ABOUT YOUR OPINION AS TO
17 WHETHER OR NOT THERE WAS CRIMINAL CONDUCT INVOLVED HERE THAT
18 YOU'VE EXPRESSED, YOU'RE REFERENCING THAT BASED UPON YOUR
19 KNOWLEDGE OF WHAT KIND OF CONDUCT A PHYSICIAN SHOULD BE
20 ENGAGED IN; IS THAT RIGHT?
21 A. YES, SIR. PEOPLE DIE IN THE PRACTICE OF MEDICINE. AND
22 IN EVALUATION OF WHETHER THEY DIE THROUGH APPROPRIATE
23 MEDICAL INTERVENTION, THROUGH MALFEASANCE OR THROUGH
24 CRIMINAL ACT IS AN EVALUATIVE PROCESS THAT I THINK ALL
25 PHYSICIANS HAVE SOME DEGREE OF ABILITY TO EVALUATE.
43
1 Q. HAVE YOU RECEIVED OR HAVE YOU HAD AN OPPORTUNITY --
2 LET'S PUT IT THIS WAY -- TO REREVIEW THE MEDICAL RECORDS
3 THAT WERE PROVIDED TO YOU BY MISS BOWMAN PRIOR TO YOUR
4 TESTIFYING HERE TODAY?
5 A. YES. I REVIEWED THEM OVER THE LAST SEVERAL DAYS TO
6 REFRESH MY MEMORY.
7 Q. AND DID YOU REVIEW ANY OTHER DOCUMENTS IN ADDITION TO
8 THOSE RECORDS THAT HAVE BEEN SUPPLIED TO YOU BY MISS BOWMAN?
9 A. YES. I REVIEWED THE TESTIMONY, THE COURT TESTIMONY, OF
10 DR. HARE AND THE COURT TESTIMONY OF DR. HERBST.
11 Q. AND THE PURPOSE OF THE REVIEW WAS TO PREPARE FOR THESE
12 PROCEEDINGS; IS THAT CORRECT?
13 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT TO
14 RELEVANCY NOW. WE'VE LIMITED THIS TO THE DISCUSSIONS WITH
15 THE PROSECUTOR. IF WE WANT TO GET INTO THAT WHOLE OTHER
16 AREA, THAT'S FINE. OBVIOUSLY HE'S PREPARED TO DO THAT, BUT
17 IT'S NOT RELEVANT, AS I UNDERSTAND THE COURT'S RULING.
18 THE COURT: OKAY. WHAT DO YOU WANT TO DO, MR.
19 WILSON?
20 MR. WILSON: I JUST WANT TO ASK -- I'LL JUST ASK
21 THE QUESTION THIS WAY.
22 Q. WOULD THE OTHER RECORDS THAT YOU REVIEWED, WOULD THEY IN
23 ANY WAY HAVE IMPACTED YOUR RECOLLECTION AS IT RELATES TO THE
24 EVENTS THAT TOOK PLACE ON APRIL 26TH?
25 A. APRIL 26 BEING?
44
1 Q. THE MEETING BETWEEN THE PROSECUTORS AND YOURSELF?
2 A. NO. THOSE WERE INDEPENDENT EVENTS.
3 Q. WHAT I'M ASKING IS, BY REVIEWING THOSE RECORDS, DOES
4 THAT IN ANY WAY COLOR YOUR TESTIMONY HERE TODAY AS TO YOUR
5 RECOLLECTION OF THE EVENTS ON THAT DATE?
6 A. NO. I ACTUALLY NEVER EVEN THOUGHT ABOUT RELATING THE
7 TWO TOGETHER, NO, SIR.
8 Q. DID YOU MAKE ANY NOTES OF THAT PARTICULAR MEETING, SIR?
9 A. THE ONE ON THE 26TH?
10 Q. UH-HUH.
11 A. NO, I DID NOT.
12 Q. DID YOU NOTE WHETHER OR NOT EITHER ONE OF THE
13 PROSECUTORS WAS MAKING NOTES AT THAT TIME?
14 A. I CAN'T RECALL SPECIFICALLY, NO.
15 Q. AND THIS MEETING TOOK PLACE IN YOUR HOME?
16 A. YES, SIR.
17 Q. WERE YOU SEATED AT A TABLE? WERE YOU -- WHERE IN THE
18 HOME WERE YOU SEATED?
19 A. AROUND THE DINING ROOM TABLE.
20 Q. SO NOTES COULD HAVE BEEN TAKEN OF THAT MEETING, BUT YOU
21 JUST DON'T RECALL?
22 A. THAT'S CORRECT.
23 Q. WHEN WERE YOU FIRST -- WHEN WAS IT -- THE FIRST TIME
24 THAT YOU ATTEMPTED TO RECALL THE CONTEXT OF THE
25 CONVERSATIONS THAT TOOK PLACE AT THAT MEETING?
45
1 A. THE FIRST TIME PROBABLY IN A FORMAL MANNER WHERE I
2 RECALL GOING THROUGH THIS WAS AT THE MEETING WITH MR. STIRBA
3 AT THE FIRST TIME THAT WE MET.
4 Q. AND HOW LONG DID THAT MEETING TAKE, SIR?
5 A. I THINK WE MET FOR ABOUT TWO HOURS.
6 Q. DID YOU HAVE ANY RECORDS OR DOCUMENTS WITH YOU AT THE
7 TIME OF THAT MEETING?
8 A. NO. I PROBABLY DID BRING IN MY SUMMARY NOTES. I CAN'T
9 RECALL SPECIFICALLY, BUT I PROBABLY DID.
10 Q. SO YOU PROBABLY BROUGHT IN YOUR SUMMARY NOTES AS TO THE
11 REVIEW OF THE MEDICAL RECORDS?
12 A. YES.
13 Q. OKAY. DO YOU HAVE THOSE NOTES WITH YOU HERE TODAY?
14 A. YES, I DO. I MAY HAVE BROUGHT ALL THE RECORDS. I JUST
15 DON'T RECALL HOW MUCH. IT'S PRETTY VOLUMINOUS. I DON'T
16 RECALL WHAT I HAULED BACK AND FORTH.
17 Q. OKAY. NOW, THERE WAS AN AFFIDAVIT THAT WAS PREPARED AND
18 PRESENTED TO YOU AS PART OF THESE PROCEEDINGS; IS THAT
19 CORRECT? FOR YOUR SIGNATURE?
20 A. THE AFFIDAVIT THAT I SIGNED?
21 Q. UH-HUH?
22 A. YES, SIR.
23 Q. AND YOU HAD AN OPPORTUNITY TO REVIEW THAT AFFIDAVIT, DID
24 YOU NOT?
25 A. OH, YES. I WAS INTIMATELY INVOLVED IN ITS PREPARATION;
46
1 NOT IN FORMATTING OF IT, BUT IN THE CONTENT, YES.
2 Q. OKAY. AND IN THAT AFFIDAVIT YOU SAY YOU WERE INTIMATELY
3 INVOLVED IN THE DEVELOPMENT OF THE AFFIDAVIT?
4 A. WELL, THE CONTENT, YES.
5 Q. THE CONTENT. AND YOU REVIEWED IT BEFORE YOU SIGNED IT?
6 A. OH, YES.
7 Q. NOW, YOU PREVIOUSLY TESTIFIED THAT YOU IMPARTED TO THE
8 PROSECUTORS INFORMATION THAT YOU DIDN'T BELIEVE THAT THE
9 DOCTOR WAS INVOLVED IN CRIMINAL CONDUCT. IS THAT AN
10 ACCURATE STATEMENT OF YOUR TESTIMONY TODAY?
11 A. IT'S A SUMMARY COMMENT, YES.
12 Q. IN YOUR AFFIDAVIT, PARAGRAPH SIX, YOU INDICATE, I
13 PROVIDED MY OPINION THAT AFTER REVIEWING THE HOSPITAL
14 RECORDS, I DO NOT BELIEVE THAT THIS WAS A CASE OF
15 FIRST-DEGREE MURDER.
16 NOW, IN YOUR AFFIDAVIT YOU REFER TO IT AS FIRST-DEGREE
17 MURDER RATHER THAN CRIMINAL CONDUCT. IS THAT ACCURATE?
18 A. IF THAT'S WHAT IS STATED IN THE AFFIDAVIT. I WOULD HAVE
19 TO SEE IT IN FRONT OF ME TO QUOTE IT DIRECTLY, BUT IF THAT'S
20 WHAT I SAID, THAT'S WHAT I SAID, YES.
21 Q. MARK THIS FOR IDENTIFICATION PURPOSES. BUT I'LL SHOW
22 YOU MY COPY.
23 A. I'M SORRY. I DON'T HAVE A COPY WITH ME.
24 Q. IF YOU'LL REFER TO THE SECOND PAGE. I THINK THE SECOND
25 OR THIRD PAGE, PARAGRAPH SIX.
47
1 A. THAT'S CORRECT.
2 Q. DOES THAT ACCURATELY REFLECT WHAT YOU TOLD THE
3 PROSECUTORS ON THAT DATE?
4 A. WELL, I BELIEVE I WAS MORE BROAD THAN JUST THAT
5 STATEMENT. THAT IN FACT WE TALKED AT LENGTH AGAIN ABOUT
6 CRIMINALITY AND WHETHER THIS WAS APPROPRIATE OR
7 INAPPROPRIATE MEDICAL CONDUCT, WHETHER IT WAS STANDARD OF
8 CARE OR STANDARD-OF-CARE ISSUES AND SO FORTH. AND WE DID
9 TALK A LOT ABOUT CRIMINAL ISSUES. THE PROSECUTION HAD
10 SUPPLIED ME WITH I THINK IT'S THE MATERIALS UNDER EXHIBIT
11 D-1 THAT THEY HAD HIGHLIGHTED THE FIRST-DEGREE MURDER
12 CHARGES AND SO I THINK I WAS REFERENCING SPECIFICALLY THAT
13 RESPONSE TO THAT QUERY.
14 Q. BUT YOU WERE ACTIVELY INVOLVED IN THE PREPARATION. YOU
15 ALSO STATE FURTHER, I ALSO STATE, IN MY OPINION, THAT THE
16 RECORDS REFLECTED SUFFICIENT AMBIGUITY THAT I QUESTIONED
17 WHETHER THERE WAS -- THIS WAS AN APPROPRIATE MATTER FOR
18 CRIMINAL PROSECUTION OF ANY KIND, GIVEN THE COMPLEXITIES OF
19 THE MEDICAL ISSUES INVOLVED AS WELL AS WHAT APPEARED TO BE
20 AN UNCLEAR STATE OF THE RECORDS AS TO PRECISELY WHAT HAD
21 OCCURRED AND WHAT CONTEXT. CORRECT?
22 A. AGAIN, SIR, I WOULD HAVE TO -- IF I'M SUPPOSED TO
23 BELIEVE WHAT YOU READ IS THE TRUTH, I'LL BELIEVE THAT. BUT
24 IF YOU PUT IT--
25 Q. WELL, DOES THAT SOUND ACCURATE TO YOU?
48
1 A. I THINK WHAT'S ACCURATE IS MY INTENT IN THE STATEMENT
2 THAT THIS IS THE TYPE OF CASE OR THESE ARE THE TYPES OF
3 CASES THAT COULD PROBABLY WARRANT SIGNIFICANT DEBATE AMONGST
4 MEDICAL PROFESSIONALS TO EVALUATE THE APPROPRIATENESS OF THE
5 MEDICAL CARE, AND IN THAT AREA THERE WAS ROOM FOR GREAT
6 DEBATE. BUT THERE WAS VERY LITTLE IN THE WAY OF INFORMATION
7 THAT WOULD LEAD ME TO BELIEVE THAT THERE WAS CRIMINAL ACTION
8 INVOLVED.
9 Q. WHEN YOU RECEIVED THE INFORMATION FROM MISS BOWMAN, WERE
10 YOU ASKED RELATIVE TO YOUR OPINION AS TO WHETHER OR NOT THIS
11 WAS CRIMINAL CONDUCT?
12 A. I CAN'T RECALL EXACTLY WHAT SPECIFIC WORDS SHE COULD
13 HAVE USED.
14 Q. EXCUSE ME, DOCTOR. I'LL ASK FOR THE COURT'S INDULGENCE.
15 I'M TRYING TO LOCATE AN EXHIBIT THAT I HAD. MAYBE I'LL HAVE
16 TO HAVE THEM REMARKED.
17 DOCTOR, I'LL HAND YOU WHAT'S BEEN MARKED AS STATE'S
18 EXHIBIT 1 AND ASK YOU TO TAKE A LOOK AT THIS, IF YOU WOULD,
19 PLEASE?
20 A. YES.
21 Q. DOES THAT PURPORT TO BE A LETTER DATED -- WHAT DATE?
22 A. IT'S A LETTER DATED APRIL 19, 2000.
23 Q. DO YOU RECALL RECEIVING THAT LETTER?
24 A. YES, ACTUALLY I DO NOW.
25 Q. AND THAT LETTER IS DIRECTED TO YOU FROM MISS BOWMAN?
49
1 A. YES.
2 Q. IN THE BODY OF THAT LETTER --
3 A. I'M SORRY, SIR. IT'S DIRECTED ON BEHALF OF MISS BOWMAN
4 BY A CREEL MILLER.
5 Q. PARDON?
6 A. IT'S DIRECTED TO ME BY CREEL MILLER WHO'S A LEGAL
7 ASSISTANT TO MISS BOWMAN.
8 Q. OKAY. AND THAT LETTER INDICATES THAT THERE WAS
9 ADDITIONAL MEDICAL RECORDS THAT WERE PROVIDED TO YOU ON THAT
10 DATE; IS THAT CORRECT?
11 A. YES.
12 Q. AND DO YOU RECALL THE LETTER ITSELF?
13 A. IF YOU WOULD ASK ME BEFORE SEEING THIS WHAT -- HAD YOU
14 RECEIVED ANYTHING, I WOULD HAVE SAID, I'M NOT SURE. BUT
15 REVIEWING IT NOW AND THINKING BACK, I DO RECALL RECEIVING
16 SOME SUPPLEMENTAL MATERIALS THAT I RECALL INSERTING INTO THE
17 NOTEBOOK THAT CONTAINED THE MEDICAL RECORDS.
18 Q. I ALSO SHOW YOU A STATE'S EXHIBIT 2 AND ASK YOU IF YOU
19 CAN RECOGNIZE THAT PARTICULAR DOCUMENT?
20 A. YES, SIR.
21 Q. AND DO YOU RECALL ON THAT DATE RECEIVING THE MEDICAL
22 RECORDS?
23 A. I CAN'T RECALL SPECIFICALLY THE DATE. I REMEMBER
24 RECEIVING MEDICAL RECORDS AND DISCUSSIONS IN BETWEEN, BUT
25 THE EXACT SPECIFIC DATE, I DON'T RECALL.
50
1 Q. DURING THE TIME PERIOD OF APRIL OF 2000 THIS YEAR, YOU
2 INDICATE THAT YOU WERE A VERY BUSY MAN. YOU WERE WORKING
3 SOME 80 TO 100 HOURS A WEEK?
4 A. YES, SIR.
5 Q. NOW, THE MEETING TOOK PLACE APPROXIMATELY 13 DAYS AFTER
6 YOU RECEIVED THE INITIAL MEDICAL RECORDS?
7 A. YES, SIR.
8 Q. AND THEN YOU RECEIVED SOME SUPPLEMENTAL RECORDS ABOUT
9 SEVEN DAYS BEFORE THE MEETING?
10 A. THAT'S CORRECT.
11 Q. AND YOU INDICATED THAT YOU REVIEWED THOSE RECORDS?
12 A. YES, SIR.
13 Q. DURING THAT TIME FRAME. AND WERE YOU STILL PUTTING IN
14 THE HOURS THAT YOU ARE TALKING ABOUT HERE?
15 A. MY SCHEDULE IS QUITE VARIED. I SPEND A LOT OF TIME
16 TRAVELLING. I SPEND TIME IN THE CLINIC. I SPEND TIME
17 TEACHING, LECTURING. I COULD GO BACK TO MY NOTEBOOK AND
18 TELL YOU EXACTLY WHAT I WAS DOING. I HAVE THAT WITH ME, IF
19 YOU WOULD LIKE A DETAILED ACCOUNT OF MY TIME SCHEDULE. I DO
20 REMEMBER --
21 Q. WHAT I WOULD LIKE TO KNOW IS HOW MUCH TIME DID YOU
22 ACTUALLY SPEND REVIEWING THESE RECORDS?
23 A. I WENT BACK AND NOTED THAT I SPENT ABOUT 15 HOURS OR SO
24 REVIEWING THE RECORDS OVER THE COURSE OF A WEEKEND.
25 Q. AND THAT WAS IN THE WEEKEND PRIOR TO THE MEETING?
51
1 A. IT WAS EITHER THE WEEKEND IMMEDIATELY PRIOR OR THE
2 WEEKEND PRIOR TO THAT. I COULD NOT TELL YOU WITHOUT LOOKING
3 AT MY CALENDAR.
4 Q. ACCORDING TO THE TWO DOCUMENTS THAT I'VE JUST SHOWN YOU,
5 EXHIBITS 2 AND 3, YOU RECEIVED ON THE 13TH, AS I RECALL, THE
6 MEDICAL RECORDS OF ENNIS ALLDREDGE, ELLEN ANDERSON, MARY
7 CRANE, JUDITH LARSEN AND LYDIA SMITH, AND IT INDICATES IN
8 THAT LETTER JUST WHAT THEY INCLUDED. DID YOU UNDERSTAND
9 THIS TO BE THE FULL AND COMPLETE MEDICAL RECORDS ON EACH OF
10 THESE PATIENTS?
11 A. NO. WHAT I UNDERSTOOD THESE TO BE WAS BASED ON OUR
12 PHONE CONVERSATION WAS WHAT I ASKED FOR WAS THOSE MEDICAL
13 RECORDS THAT THEY COULD SUPPLY TO ME THAT HAD INDICATED TO
14 THEM EITHER MEDICAL MALFEASANCE OR SUPPORT OF THEIR ALLEGED
15 HOMICIDE.
16 Q. OKAY. YOU ALSO RECALL RECEIVING THE THREE AUTOPSY
17 REPORTS; IS THAT CORRECT?
18 A. YES.
19 Q. IT'S INDICATED IN THAT LETTER ON APRIL 13TH FROM BETSY
20 BOWMAN, I HAVE NOT INCLUDED NURSING TREATMENT PLANS, TEAM
21 THERAPY RECORDS, RESTRAINT RECORDS, DIETARY RECORDS, ET
22 CETERA.
23 IS THAT CORRECT?
24 A. WELL, IT'S NOT COMPLETELY CORRECT BECAUSE THE MEDICAL
25 RECORDS I DID RECEIVE DID HAVE NURSING CARE PLANS, NARRATIVE
52
1 NOTES, SOME NOTES BY MEMBERS OF THE TEAM. SO IT WAS SORT OF
2 A MIX, IN OTHER WORDS.
3 Q. YOU ALSO INDICATE -- IT'S ALSO INDICATED AT THIS POINT
4 THE MEDICAL DIRECTIVE AND MEDICARE PREADMISSION SCREENING
5 AND ANNUAL RESIDENT REVIEW SCREENING RECORDS HAD NOT BEEN
6 SORTED AND NUMBERED. DID YOU EVER RECEIVE THOSE?
7 A. I DON'T RECALL RECEIVING DOCUMENTS SPECIFICALLY LABELED
8 AS SUCH.
9 Q. OKAY. YOU DID ON THE 19TH, ACCORDING TO EXHIBIT 2,
10 RECEIVE ADDITIONAL MEDICAL RECORDS ON ENNIS ALLDREDGE, MARY
11 CRANE, JUDITH LARSEN AND LYDIA SMITH. DO YOU RECALL WHETHER
12 OR NOT YOU REVIEWED THOSE RECORDS PRIOR TO THE MEETING ON
13 THE 26TH?
14 A. YES, SIR. I HAD THAT. THEY HAD BEEN INSERTED INTO THE
15 MEDICAL FILES.
16 Q. SO YOUR TESTIMONY IS, IS THAT THE WEEKEND BEFORE THE
17 MEETING IS WHEN YOU FIRST REVIEWED THESE RECORDS?
18 A. IT WOULD HAVE BEEN A WEEKEND EITHER JUST PRECEDING OR A
19 COUPLE OF WEEKENDS PRIOR. I WOULD HAVE TO LOOK AT MY
20 CALENDAR AND SEE HOW THE DATES COINCIDE, BUT I DO KNOW I
21 REQUIRED A WEEKEND IN ORDER TO DO SO.
22 Q. NOW, YOUR UNDERSTANDING, AS I GATHER FROM THE APRIL 7TH
23 LETTER, IS THAT YOU WERE BEING ASKED TO LOOK AT THESE
24 RECORDS TO FOCUS ON END-OF-LIFE CARE SITUATIONS; IS THAT
25 CORRECT?
53
1 A. WELL, THE CONVERSATION BY TELEPHONE WAS TO LOOK AT THE
2 MATERIALS FROM THE STANDPOINT OF FOCUS ON CAUSATION AND
3 INDICATIONS FOR THERAPIES.
4 Q. THAT'S A HANDWRITTEN NOTE ON, I THINK IT'S EXHIBIT D-1.
5 MAY I HAVE THAT EXHIBIT, YOUR HONOR?
6 THE COURT: I THINK HE HAS IT.
7 THE WITNESS: THOSE ARE MY NOTES FROM THE TELEPHONE
8 CONVERSATION.
9 Q. (BY MR. WILSON): SO ON APRIL 7TH YOU HAVE A TELEPHONE
10 CONVERSATION WITH MISS BOWMAN?
11 A. WELL, NO, SIR. THE LETTER IS DATED APRIL 7. I DON'T
12 RECALL EXACTLY THE DATE THE TELEPHONE CONVERSATION TOOK
13 PLACE.
14 Q. WELL, WHEN WAS THE NOTE MADE, SIR?
15 A. OBVIOUSLY SOMETIME AFTER I HAD RECEIVED THE LETTER. WE
16 HAD -- BETSY BOWMAN AND MYSELF HAD A COUPLE OF TWO OR THREE
17 TELEPHONE CONVERSATIONS. I CAN'T REMEMBER. PLUS SHE
18 VISITED MY HOME IN ORDER TO DELIVER SOME RECORDS AT WHICH
19 TIME WE ALSO HAD A CONVERSATION.
20 Q. OKAY. SO WHAT WAS THE PURPOSE OF THE MEETING ON THE
21 26TH?
22 A. TO REVIEW MY FINDINGS PURSUANT TO THIS CASE AS TO
23 WHETHER THESE REFLECTED CRIMINAL ACTS OR IN ORDER TO SUPPORT
24 THE PROSECUTION'S CASE, AS I UNDERSTOOD IT.
25 Q. AND WAS IT ALSO -- THERE WAS A PURPOSE, WAS THERE NOT,
54
1 AN EDUCATIONAL PURPOSE, THAT YOU PERFORMED ON THAT
2 PARTICULAR DAY?
3 A. I DON'T THINK ANYBODY EVER INTERACTS WITH ME WITHOUT
4 HAVING SOME ULTERIOR MOTIVE OF AN EDUCATIONAL PURPOSE, SIR.
5 I SAY THAT A BIT FACETIOUSLY, BUT IT'S SORT OF WHAT I DO.
6 Q. OKAY. AND IT'S IMPORTANT TO EDUCATE THE PROSECUTORS AS
7 TO YOUR BACKGROUND AND AS TO CERTAIN FACETS OF END-OF-LIFE
8 CARE AND PALLIATIVE CARE OR THE HOSPICE CARE; IS THAT
9 CORRECT?
10 A. THOSE ARE ALL PERTINENT ISSUES IN THIS CASE, YES.
11 Q. IS THERE ANY DIFFERENCE BETWEEN END-OF-LIFE CARE AND
12 HOSPICE CARE?
13 A. WELL, HOSPICE IS A SPECIFIC FORM OF END-OF-LIFE CARE PER
14 SE. IT'S -- IT'S GOT VARIOUS DEFINITIONS. SOME ARE
15 LEGALISTIC. SOME ARE SORT OF PROCEDURAL AND SOME ARE
16 PHILOSOPHICAL, BUT IT'S A FORM OR SUBSET, IF YOU WILL, OF
17 HOSPICE CARE OR -- EXCUSE ME -- END-OF-LIFE CARE.
18 Q. WOULD IT BE A FAIR STATEMENT TO SAY THAT THE
19 CONVERSATION WAS ALSO TO GET A FEELING PRELIMINARILY AS TO
20 WHERE YOU WERE GOING WITH YOUR EVALUATION AND WHETHER THERE
21 WAS NEED FOR FURTHER RECORDS FOR YOU TO REVIEW IN ORDER TO
22 ACCURATELY COME TO AN OPINION?
23 A. I THINK THAT WOULD BE A QUESTION MORE FAIRLY ASKED TO
24 MISS BARLOW AND MISS BOWMAN. I KNOW THAT FROM OUR
25 CONVERSATIONS IT WAS MY PERCEPTION THAT THE INTENT OF THE
55
1 MEETING WAS TO RENDER AN OPINION AND TO REVIEW THE CASES ON
2 THE BASIS OF WHICH I WAS RENDERING THAT OPINION. SO THAT
3 WAS MY INTENTION. THEY MAY HAVE HAD OTHER INTENTIONS.
4 Q. LET ME ASK YOU SOME SPECIFIC QUESTIONS IN THAT LIGHT.
5 ISN'T IT TRUE, SIR, THAT YOU NEVER RECEIVED ANY OTHER
6 RECORDS OTHER THAN THE ONES THAT WE'VE TALKED ABOUT HERE?
7 A. THAT IS CORRECT.
8 Q. ISN'T IT ALSO TRUE THAT YOU'VE NEVER RECEIVED ANY
9 NURSING HOME RECORDS FOR ANY OF THESE PATIENTS?
10 A. THAT IS CORRECT.
11 Q. IN YOUR OPINION, SIR, WOULD THOSE RECORDS HAVE BEEN
12 SOMETHING THAT YOU WOULD WANT TO HAVE LOOKED AT BEFORE YOU
13 ISSUED ANY KIND OF FORMAL OPINION IN REGARDS TO THIS MATTER?
14 A. DEPENDING UPON THE INTENT AND THE PURPOSE OF THE REVIEW
15 AND FOR WHAT ENDS. REVIEWING THOSE RECORDS WOULD HAVE
16 SPOKEN TO OTHER STANDARD-OF-CARE ISSUES AND PRECEDENT
17 ISSUES, BUT I FELT THAT IN TERMS OF THE KIND OF OPINION I
18 WAS RENDERING, WHETHER THIS WAS A CRIMINAL ACTIVITY OR NOT,
19 WHAT HAD PRECEDED IN THOSE PATIENTS OTHER THAN WHAT WAS
20 RECORDED IN THE MEDICAL RECORDS THAT HAD INFORMATION THAT
21 HAD ACCOMPANIED THE PATIENTS FROM THEIR NURSING HOMES, THAT
22 THEY WERE NOT PARTICULARLY MEDICALLY OR -- EXCUSE ME --
23 RELEVANT IN THIS LIGHT. FOR OTHER PURPOSES --
24 Q. LET ME ASK YOU THIS. ISN'T IT TRUE THAT YOU INDICATED
25 TO MISS BARLOW AND MISS BOWMAN THAT YOU WOULD WANT TO KNOW
56
1 THE NURSING HOME RECORDS AND HOW THESE PATIENTS HAD BEEN
2 HANDLED IN THE NURSING HOMES?
3 A. WHEN WE WERE DISCUSSING ISSUES AROUND STANDARDS OF CARE
4 AND ISSUES THAT IN TERMS OF PREVIOUS DISCUSSIONS AND
5 PROGNOSTIC DETERMINATIONS OR THE LACK OF THOSE
6 DETERMINATIONS MADE BY THE PHYSICIANS THAT TREATED THESE
7 PATIENTS, ALL AROUND STANDARD-OF-CARE ISSUES, YES. THOSE
8 CERTAINLY WOULD HAVE BEEN HELPFUL.
9 Q. IS IT ALSO TRUE, SIR, THAT MUCH OF THE MEETING WAS
10 SPENT, RATHER THAN TALKING ABOUT SPECIFIC CASES, BUT
11 EXPLAINING THE DETAILS OF HOSPICE CARE?
12 A. NO, SIR, NOT THE BALANCE OF THE MEETING. I CAN DO THAT
13 IN ABOUT FIVE MINUTES. IT DOESN'T REQUIRE FOUR HOURS.
14 Q. NOW, HOSPICE CARE HAS BEEN A CONCERN OF YOURS FOR A
15 NUMBER OF YEARS; IS THAT CORRECT?
16 A. I'VE BEEN A MEDICAL DIRECTOR IN ONE SORT OR ANOTHER FOR
17 ABOUT 12 YEARS, YES.
18 Q. AND AS I UNDERSTAND IT, ONE OF THE THINGS THAT YOU
19 REFERENCED WITH THE ATTORNEYS ON THIS PARTICULAR OCCASION IS
20 THAT HOSPICE CARE INVOLVES A TEAM APPROACH TO THE CARE OF
21 THE PATIENT, CORRECT?
22 A. THAT IS CORRECT.
23 Q. AND THAT TEAM CONSISTS OF A SPIRITUAL ADVISOR, CORRECT?
24 A. WELL, WE USE -- THE WORD "ADVISOR" IS NOT ADVISABLE.
25 NO, SIR. PASTORAL CARE OR CHAPLAINCY.
57
1 Q. HOW ABOUT A PSYCH SOCIAL WORKER?
2 A. MEDICAL SOCIAL WORK IS PART OF -- IS THE -- MAYBE I
3 SHOULD BACK UP. THE CONSTRUCT OF THE HOSPICE TEAM IS
4 DEFINED BY MEDICARE AND REQUIRES MEDICAL DIRECTION, NURSE
5 CASE MANAGEMENT, MEDICAL SOCIAL WORK AND PASTORAL CARE OR
6 CHAPLAINCY.
7 Q. SO YOU WOULD INVOLVE A NUMBER OF PEOPLE IN THE PROCESS
8 OF MAKING DECISIONS AS FAR AS THIS TEAM IS CONCERNED; IS
9 THAT CORRECT?
10 A. AT THE PATIENT FAMILY'S DISCRETION. NOBODY IS FORCED ON
11 ANYBODY, NO. THESE ARE AVAILABLE SERVICES THAT ARE REQUIRED
12 TO BE AVAILABLE BY -- UNDER THE ENTITLEMENT, YES.
13 Q. DID YOU FIND ANYTHING IN THE MEDICAL RECORDS UPON THEIR
14 ADMISSION THAT INDICATED TO YOU THAT THESE PATIENTS WERE IN
15 A, AS YOU CALL IT, A TERMINAL STATE?
16 A. YES. THEIR MEDICAL CONDITIONS, AS I UNDERSTOOD THEM
17 FROM THE INFORMATION IN THE MEDICAL RECORDS, WOULD HAVE LED
18 ME TO THE CONCLUSION THAT THESE PATIENTS WERE TERMINALLY
19 ILL.
20 Q. AND IN RESPECT TO THAT DEFINITION, AS I UNDERSTAND IT,
21 IT MEANS THAT THEY HAVE UP TO SIX MONTHS TO LIVE?
22 A. THE CONVENTIONAL USE OF THE TERM IS THAT PATIENTS HAVE,
23 MORE LIKELY THAN NOT, A PROGNOSIS OF LESS THAN SIX MONTHS.
24 Q. NOW, IS THERE ANOTHER DEFINITION FOR WHEN A PATIENT
25 BECOMES TERMINAL OTHER THAN THAT PARTICULAR DEFINITION?
58
1 A. THAT IS THE MOST OPERATIONAL DEFINITION. THERE ARE
2 CATEGORIZATIONS OF PATIENTS UNDER OTHER SPECIALITIES. FOR
3 INSTANCE, IF -- SHALL I PROCEED?
4 Q. WELL, NO.
5 A. OKAY.
6 Q. YOU'VE ANSWERED THE QUESTION. I GUESS THE NEXT QUESTION
7 IS, DOES IT TAKE TWO PHYSICIANS TO DETERMINE A PATIENT IS
8 TERMINAL?
9 A. NO.
10 Q. DID YOU NOT TELL THAT TO MISS BOWMAN AND MISS BARLOW?
11 A. IF I SAID ANYTHING ALONG THOSE LINES, I WOULD HAVE SAID
12 THAT IN ORDER FOR A PATIENT TO BE CERTIFIED TO A MEDICARE
13 CERTIFIED HOSPICE PROGRAM, IT REQUIRES CERTIFICATION BY A
14 REFERRING PHYSICIAN AND A MEDICAL DIRECTOR, UNLESS THE
15 MEDICAL DIRECTOR IS ALSO THE ATTENDING PHYSICIAN.
16 Q. AND THE REASON FOR THAT, CORRECT ME IF I'M WRONG, IS TO
17 SAFEGUARD WHETHER OR NOT THIS PATIENT COULD BE MISTAKENLY
18 DIAGNOSED; IS THAT CORRECT?
19 A. NO, THAT'S NOT. IT'S A POLICY ISSUE THAT WAS CREATED AS
20 PART OF THE LEGISLATIVE ACT AGAIN IN 1982.
21 Q. SO IT'S NOT A SAFEGUARD FOR THE PATIENT?
22 A. NO. IT COULD BE A SAFEGUARD, BUT ITS INTENTION WAS MORE
23 OF A FISCAL MANAGEMENT ISSUE AROUND THE HOSPICE/MEDICARE
24 BENEFIT AS A RISK GROUP FOR MANAGED CARE RATHER THAN FOR ANY
25 OTHER PARTICULAR MEDICAL REASONS.
59
1 Q. DID YOU TALK TO MISS BARLOW AND MISS BOWMAN ABOUT THE
2 MEDICATIONS THAT WERE BEING ADMINISTERED TO THESE PATIENTS?
3 A. YES, WE DISCUSSED MEDICATIONS.
4 Q. DID YOU DISCUSS BOTH THE MEDICATION OF MORPHINE AS WELL
5 AS THE OTHER MEDICATIONS THAT WERE BEING ADMINISTERED AS THE
6 PSYCHOTROPIC MEDICATIONS?
7 A. WE DISCUSSED MANY MEDICATIONS, INCLUDING MORPHINE AND
8 PSYCHOTROPIC AGENTS, YES.
9 Q. AND DID YOU DISCUSS THE FACT THAT -- OR DID YOU TELL
10 THEM THAT ALL TEAM MEMBERS WOULD HAVE TO APPROVE MEDICATIONS
11 BEFORE THEY WERE GIVEN TO A PATIENT?
12 A. AGAIN, IF I SAID ANYTHING ABOUT -- THIS IS IN REFERENCE
13 TO HOSPICE CARE? IS THAT THE QUESTION?
14 Q. I ASSUME SO, SIR.
15 A. WELL, MAYBE -- I'M NOT SURE HOW TO ASSUME -- HOW TO
16 ASSUME YOUR ASSUMPTION. CLARIFY.
17 Q. WELL, IN THE COURSE OF -- YOUR TESTIMONY IS THAT YOU
18 WERE EDUCATING MISS BOWMAN AND MISS BARLOW IN RESPECT TO
19 THESE END-OF-LIFE CARE MATTERS; IS THAT CORRECT?
20 A. THERE WERE -- YOU WANT TO USE THE WORD "EDUCATION" AS WE
21 HAVE, THERE WAS INFORMATION AND CLARIFICATION ABOUT
22 END-OF-LIFE CARE ISSUES AND CONTEXTUAL ISSUES AND
23 INFORMATION ABOUT THE PHARMACOLOGY OF THESE DRUGS AND THE
24 INDICATIONS FOR THEM AND SO FORTH. IT WASN'T A FORMAL
25 LECTURE OR EDUCATIONAL SESSION. I DIDN'T SHOW SLIDES OR
60
1 DIAGRAMS.
2 Q. LET ME BE SPECIFIC. ISN'T IT TRUE, DOCTOR, THAT YOU
3 TOLD THEM THAT AS PART OF THIS TEAM CONCEPT, THAT ALL
4 MEDICATIONS WOULD HAVE TO BE APPROVED BY THE TEAM MEMBERS;
5 IS THAT CORRECT?
6 A. THE WAY INTERDISCIPLINARY TEAM MEETINGS IN HOSPICE ARE
7 RUN AND THE WAY THAT PLANS OF CARE ARE VIEWED AS APPROPRIATE
8 IS THAT THE TEAM DOES REVIEW ALL ISSUES OF PLANS OF CARE
9 INCLUDING MEDICATIONS, BUT IT'S USUALLY THE PHYSICIAN'S
10 PURVIEW. THAT'S WHAT THE PHYSICIAN'S EXPERTISE IS ON THE
11 TEAM FOR, IS WHY IT'S REQUIRED THAT THERE BE A MEDICAL
12 DIRECTOR BECAUSE THAT'S WHERE THE EXPERTISE OF PHARMACOLOGY
13 RESIDES, WITH THE PHYSICIAN.
14 Q. ISN'T IT TRUE, YOU ALSO TAUGHT THEM THAT HOSPICE CARE
15 DOES NOT TYPICALLY TAKE PLACE IN A HOSPITAL SETTING?
16 A. I CAN TELL YOU SPECIFICALLY WHERE HOSPICE CARE DOES TAKE
17 PLACE. IT TAKES PLACE --
18 Q. THE QUESTION WAS, DOCTOR, DID YOU TELL THEM IT DOESN'T
19 TAKE PLACE IN A HOSPITAL SETTING TYPICALLY?
20 A. I DO NOT RECALL SPECIFIC WORDS, BUT IF THEY WERE ASKING
21 ABOUT WHERE HOSPICE CARE TAKES PLACE I WOULD HAVE SAID THE
22 FACTS, AND THE FACTS BEING THAT ABOUT 80 PERCENT OF HOSPICE
23 CARE TAKES PLACE IN THE HOME, IN PEOPLE'S RESIDENCES OR
24 WHERE THEY CALL HOME. THAT THERE'S A VERY SMALL AMOUNT THAT
25 TAKES PLACE IN LONG-TERM CARE FACILITIES AND HOSPICE CARE
61
1 DOES TAKE PLACE IN INPATIENT UNITS, EITHER AS DESIGNATED
2 HOSPICE FACILITIES OR IN SHARED FACILITIES WITH HOSPICE --
3 EXCUSE ME -- WITH HOSPITALS. BUT IT IS THE MAJORITY OF
4 CASES THAT ARE TAKEN CARE OF IN PATIENTS' HOMES.
5 Q. I THINK YOU'VE PREVIOUSLY TESTIFIED YOU DISCUSSED THE
6 FACT THAT DEMENTIA IS TERMINAL, CORRECT?
7 A. DEMENTIA --
8 Q. IN THE LAST STAGES?
9 A. WE'VE ACTUALLY JUST DEFINED IT. IN THE LAST STAGE,
10 EVERYTHING IS TERMINAL. I MEAN THAT'S SORT OF --
11 Q. I THINK YOU CATEGORIZED THESE INDIVIDUALS AS STAGE
12 SEVEN, AS I RECALL YOUR TESTIMONY?
13 A. WELL, THERE'S ONE FORM OF CATEGORIZATION FOR PATIENTS
14 WITH DEMENTIA OR ADVANCED, IN ESSENCE, AND IT'S THE
15 FUNCTIONAL ASSESSMENT STAGING SCALE. AND THESE PATIENTS
16 WERE AT AROUND THE STAGE SEVEN -- STAGE SEVEN LEVEL ON THAT
17 PARTICULAR RATING SCALE. THERE ARE OTHERS.
18 Q. DID YOU, IN THE COURSE OF YOUR DISCUSSIONS WITH THEM,
19 CLARIFY WITH THEM THAT THERE HAD NOT BEEN AN EVALUATION OF
20 THESE FIVE PATIENTS INDICATING THEY WERE TERMINAL AT THE
21 TIME THAT THEY WERE ADMITTED TO THE GEROPSYCH UNIT?
22 A. BASED UPON THE RECORDS AGAIN THAT I REVIEWED AND THE
23 BRIEF DISCUSSION I HAD WITH DR. HARE AND IN A TELEPHONE
24 CONVERSATION I HAD WITH MISS BOWMAN, THERE WAS NO EVIDENCE
25 THAT PRIOR TO THE TIME THEY HAD BEEN ADMITTED TO THIS UNIT,
62
1 THEY HAD SPECIFICALLY BEEN SUBJECT TO A PROGNOSTIC
2 EVALUATION.
3 Q. OKAY. YOU ALSO DISCUSSED WITH THEM A POSSIBLE
4 DIAGNOSTIC TEST FOR PAIN IS TO GIVE THE ANALGESIC, THEN
5 OBSERVE THE RESPONSE, CORRECT?
6 A. THE STANDARD APPROACH TO DETERMINING WHETHER PAIN IS THE
7 INSTIGATING CAUSE OF THE BEHAVIORS WE PREVIOUSLY DISCUSSED
8 IS WHAT'S SORT OF FORMALLY CALLED AN "N OF ONE" TRIAL;
9 NAMELY, A DIAGNOSTIC APPLICATION OF THE THERAPY YOU WOULD
10 THINK IS GOING TO RESOLVE THE PROBLEM. AND IF IT DOES, THEN
11 IN FACT YOU -- YOU'VE -- IT WOULD BE THE EQUIVALENT WOULD BE
12 A DIAGNOSTIC LAPAROSCOPY. IF YOU THINK SOMEBODY HAS --
13 Q. LET ME JUST INTERRUPT YOU THERE. I'M GOING TO ASK YOU A
14 SERIES OF QUESTIONS. I JUST WOULD APPRECIATE IT IF YOU
15 WOULD TELL ME WHETHER OR NOT YOU REMEMBER TELLING THESE
16 THINGS TO MISS BOWMAN AND MISS BARLOW AT THE TIME OF THAT
17 MEETING ON APRIL 26TH. DID YOU TELL THEM THAT DR. WEITZEL
18 WAS PROBABLY INADEQUATELY TRAINED TO EVALUATE THESE PATIENTS
19 AS FAR AS PLANNING FOR THEIR CARE?
20 A. IN THE CONTEXT I WOULD HAVE SAID THAT, IT WOULD HAVE
21 BEEN AROUND THE SPECIFICS OF PROVIDING HIGH QUALITY
22 END-OF-LIFE CARE. AND THAT AGAIN IS A GENERALIZATION THAT
23 COULD BE MADE TO MOST PHYSICIANS. AGAIN SAD COMMENTARY --
24 Q. I THINK YOU'VE ANSWERED MY QUESTION, SIR. DID YOU TELL
25 THEM THAT HE WAS NOT A VERY GOOD EVALUATOR OF MEDICAL
63
1 DISEASE; IS THAT CORRECT?
2 A. I WOULD HAVE HAD NO WAY OF DETERMINING THAT, BUT I WOULD
3 HAVE, FROM THE RECORDS, SAID THAT THERE WERE EVALUATIVE
4 PROCESSES THAT WERE INCOMPLETE.
5 Q. YOU HAVE PREVIOUSLY TESTIFIED THAT YOU DON'T REMEMBER
6 TELLING THEM THAT HE COPIED THE NURSING NOTES; IS THAT
7 CORRECT?
8 A. I HAVE NO IDEA WHERE THAT PARTICULAR -- THE IDEA OF
9 COPYING NURSES' NOTES WOULD HAVE COME FROM.
10 Q. YOU DON'T RECALL SAYING THAT?
11 A. I DON'T RECALL ANYTHING AROUND THE ISSUE OF COPYING
12 NURSING NOTES COMING UP IN THE DISCUSSION.
13 Q. BUT YOU DID TELL THEM THAT HE WAS BUMBLING.
14 A. I MAY HAVE USED THE WORD "BUMBLING".
15 Q. YOU TOLD THEM THAT HE SHOULD NEVER BE PRACTICING
16 MEDICINE AGAIN?
17 A. I DON'T RECALL SPECIFICALLY STATING THAT. I DO RECALL
18 QUESTIONING WHETHER HIS ADEQUACY AND CLINICAL JUDGMENT IN
19 THIS -- IN THE WAY THESE CASES WERE MANAGED CERTAINLY SHOULD
20 COME UNDER REVIEW AND THAT -- AND THAT ANY PHYSICIAN'S
21 LICENSURE OR ABILITY TO PRACTICE MEDICINE SHOULD BE SUBJECT
22 TO QUESTION WHEN THERE'S SERIOUS ISSUES BROUGHT BEFORE IT.
23 HOWEVER THAT WAS NOTATED OR PERCEIVED, I CAN'T TELL YOU
24 EXACTLY.
25 Q. YOU DON'T RECALL SPECIFICALLY TELLING THEM THAT, BUT YOU
64
1 COULD HAVE DONE THAT; IS THAT CORRECT?
2 A. WELL, READ THE WORDS AGAIN, SIR.
3 Q. YOU TOLD THEM HE SHOULD NEVER BE PRACTICING MEDICINE
4 AGAIN?
5 A. I DON'T REMEMBER THAT AS A SPECIFIC QUOTE --
6 Q. YOU TOLD THEM -- EXCUSE ME.
7 A. I HADN'T FINISHED MY RESPONSE.
8 MR. STIRBA: I THINK HE'S ENTITLED --
9 THE COURT: GO AHEAD AND FINISH THE ANSWER.
10 THE WITNESS: WOULD I HAVE SAID THAT, I WOULD HAVE
11 BEEN REACHING BEYOND ANY EVIDENCE THAT WAS BEFORE ME.
12 Q. (BY MR. WILSON): SO YOU DON'T RECALL SAYING THAT?
13 A. NO, SIR.
14 Q. YOU TOLD THEM THAT THE OPIOIDS GIVEN TO MR. ALLDREDGE,
15 WHO WAS AN OPIOID-NAIVE PATIENT, PROBABLY HASTENED HIS
16 DEATH, CORRECT?
17 A. I THINK I DID SAY THAT, YES, SIR.
18 Q. AND YOU INDICATED THAT JUDITH LARSEN, AFTER SHE HAD
19 COFFEE-GROUNDS EMESIS, WOULD BE HOSPICE ELIGIBLE, CORRECT?
20 A. WELL, NOT ON THE BASIS OF THAT ONE SINGLE FINDING.
21 THERE ARE MANY PATIENTS WHO HAVE COFFEE-GROUNDS EMESIS THAT
22 HAVE NO INDICATIONS FOR HOSPICE CARE.
23 Q. BUT DO YOU RECALL REVIEWING JUDITH LARSEN'S RECORDS?
24 A. YES.
25 Q. AND DO YOU RECALL WHETHER OR NOT IN REVIEWING HER
65
1 RECORDS YOU FELT THAT SHE WAS RECEIVING HOSPICE CARE AT THE
2 TIME OF HER ADMISSION TO THE UNIT?
3 A. I THINK I COULD SUMMARIZE ALL THE PATIENTS I REVIEWED,
4 BASED UPON THEIR MEDICAL CONDITIONS, WOULD HAVE MET THE
5 ELIGIBILITY CRITERIA FOR HOSPICE AS IS CURRENTLY DEFINED.
6 Q. DID YOU HAVE A PROBLEM EXPLAINING THE DOSAGES OF
7 MORPHINE WHICH WERE ADMINISTERED TO JUDITH LARSEN ON JANUARY
8 3RD OF 1996?
9 A. I WOULD HAVE TO REVIEW THOSE RECORDS SPECIFICALLY.
10 Q. DO YOU REMEMBER THAT YOU MAY HAVE SAID ANYTHING OF THAT
11 NATURE TO THEM?
12 A. I DON'T RECALL SAYING I WOULD HAVE A PROBLEM EXPLAINING
13 IT, NO, SIR. I WOULD HAVE TO AGAIN REVIEW THE RECORDS AND
14 SEE WHAT KIND OF CONTEXT THOSE DRUGS WERE GIVEN AND THEN I
15 COULD GIVE YOU A BETTER STATEMENT.
16 Q. WERE YOU EVER ASKED FOR A RESUME OR DID YOU TURN OVER A
17 RESUME?
18 A. TO WHOM?
19 Q. TO MISS BARLOW OR MISS BOWMAN.
20 A. I DON'T RECALL.
21 Q. YOU NEVER ISSUED ANY OPINION LETTER, CORRECT?
22 A. THAT IS CORRECT.
23 Q. AND AT THE TIME YOU INTERVIEWED THEM ON APRIL 26TH OR
24 INTERVIEWED WITH THEM, YOU WERE UNDER THE IMPRESSION THAT
25 DOUG ROLLINS FROM THE UNIVERSITY WOULD BE TESTIFYING FOR
66
1 WEITZEL, CORRECT?
2 A. I WAS GIVEN A LIST OF NAMES OF PEOPLE WHO WERE ON
3 EXHIBIT D-1, BUT I DON'T THINK I WAS GIVEN ANY FURTHER
4 INFORMATION ABOUT WHO SPECIFICALLY WOULD OR WOULD NOT BE
5 TESTIFYING.
6 Q. DID YOU EVER SPEAK WITH DOUG ROLLINS CONCERNING THIS
7 MATTER?
8 A. NO, SIR.
9 Q. OTHER THAN DR. HARE, DID YOU SPEAK WITH ANY OTHER
10 DOCTORS CONCERNING YOUR REVIEW OF THESE RECORDS?
11 A. SUBSEQUENT TO THE TRIAL, AS I MENTIONED, WE HAD A
12 MEETING WHERE THERE WERE MANY PHYSICIANS THERE AND THEY
13 HEARD MY OPINION AND DISCUSSIONS TOOK PLACE.
14 Q. EXCUSE ME. PREVIOUS TO THE MEETING ON APRIL 26TH, HAD
15 YOU HAD ANY DISCUSSIONS WITH ANY OTHER PHYSICIANS REGARDING
16 THE REVIEW OF THE MEDICAL RECORDS IN RESPECT TO THIS CASE?
17 A. I DON'T RECALL READING OR DISCUSSING THE CASE WITH
18 ANYONE ELSE OTHER THAN DR. HARE, NO.
19 Q. SO YOU NEVER HAD AN OPPORTUNITY TO REVIEW THOSE RECORDS
20 AND YOUR OPINIONS WITH ANY OTHER MEDICAL EXPERTS; IS THAT
21 CORRECT?
22 A. THE REASON I'M REFLECTING IS THERE WAS ANOTHER MEETING
23 THAT TOOK PLACE AT THE UNIVERSITY MARRIOTT, UNIVERSITY PARK
24 HOTEL, THAT --
25 Q. I'M TALKING ABOUT BEFORE THE 26TH OF APRIL?
67
1 A. WELL, I DON'T BELIEVE SO. I'M TRYING TO REMEMBER THE
2 DATES OF THESE MEETINGS, BUT PRIOR TO THE MEETING WITH THE
3 ASSISTANT ATTORNEYS GENERAL, NO, I DON'T BELIEVE SO.
4 Q. NO. THE APRIL 26 MEETING IS THE MEETING BETWEEN YOU AND
5 MISS BOWMAN AND MISS BARLOW?
6 A. RIGHT.
7 Q. AND YOURSELF.
8 A. NO. I'M PRETTY SURE THAT NO OTHER MEETINGS TOOK PLACE
9 BEFORE THAT. I DON'T THINK THERE WOULD HAVE BEEN ANY TIME
10 TO.
11 Q. IS IT MY UNDERSTANDING YOU DON'T RECALL A DISCUSSION
12 WITH MISS BOWMAN THAT YOUR NAME HAD ALREADY BEEN RELEASED TO
13 THE PUBLIC BECAUSE EACH SIDE HAD ALREADY TURNED OVER WITNESS
14 LISTS?
15 A. I DON'T RECALL A STATEMENT OR DISCUSSION TO THAT EFFECT.
16 Q. THAT COULD HAVE OCCURRED?
17 A. SAY THAT IT WAS RELEASED TO THE PUBLIC?
18 Q. UH-HUH.
19 A. I DON'T REMEMBER ANYTHING ABOUT MY NAME BEING RELEASED
20 TO THE PUBLIC. WHAT? A NEWSPAPER FORM, T.V. OR WHAT? I
21 MEAN -- WHAT DO YOU MEAN BY PUBLIC?
22 Q. IT WOULD HAVE BEEN PUT INTO THE PUBLIC RECORD.
23 A. OH, THE RECORDS. I MEAN, I'M PRESUMING -- I MEAN, I
24 DON'T KNOW. I DO NOT KNOW THAT IN FACT THEY HAD PHYSICALLY
25 LISTED ME OR NOT LISTED ME, NO, SIR.
68
1 Q. OKAY. SO YOU WEREN'T SURE AT THAT TIME WHETHER OR NOT
2 YOU HAD BEEN LISTED AS AN EXPERT WITNESS ON BEHALF OF THE
3 PROSECUTION?
4 A. THAT IS CORRECT. I KNEW THAT THERE WAS SOME TYPE OF
5 DEADLINE THAT WAS REQUIRED FOR LISTING AND I WASN'T SURE IF
6 DEADLINE HAD PASSED OR WAS -- BUT I KNOW THAT THERE WAS A
7 LOT OF EFFORT TO GET THESE RECORDS TO ME QUICKLY AND THEN TO
8 MEET WITH ME POSTHASTE AFTER MY REVIEW BECAUSE OF SOME FORM
9 OF DEADLINE THAT WAS APPROACHING OR HAD ALREADY PASSED. I
10 DON'T KNOW.
11 Q. DID YOU -- DO YOU HAVE ANY RECOLLECTION -- AS I
12 UNDERSTAND IT FROM YOUR AFFIDAVIT, LET ME JUST READ THE
13 STATEMENT TO YOU AND THEN YOU CAN TELL ME IF YOU RECALL
14 MAKING THAT STATEMENT.
15 IN YOUR PARAGRAPH EIGHT OF YOUR AFFIDAVIT YOU INDICATE,
16 BEFORE THEY LEFT I WAS TOLD THAT DEFENSE COUNSEL WAS AWARE
17 THAT I HAD BEEN NAMED AS AN EXPERT WITNESS AND PERHAPS WOULD
18 WANT TO COMMUNICATE WITH ME AS A RESULT.
19 DO YOU REMEMBER MAKING THAT STATEMENT?
20 A. IT IS -- THIS WAS ON MY AFFIDAVIT?
21 Q. UH-HUH.
22 A. WELL, AT THE TIME I WROTE IT, THEN I MUST HAVE KNOWN
23 THAT.
24 Q. DO YOU RECALL IT NOW?
25 A. I DON'T SPECIFICALLY RECALL NOW WHETHER I HAD BEEN
69
1 SPECIFICALLY TOLD THAT I HAD BEEN LISTED OR NOT.
2 Q. I'LL GO FURTHER. AND YOU SAY, I WAS SPECIFICALLY TOLD
3 THEY DID NOT WANT ME TO SHARE THE OPINIONS I HAD JUST
4 EXPRESSED TO THEM WITH THE DEFENSE COUNSEL.
5 CORRECT?
6 A. THAT'S CORRECT.
7 Q. IN THE EVENT DEFENSE COUNSEL ATTEMPTED TO COMMUNICATE
8 WITH ME, IN FACT, I UNDERSTOOD THAT I WAS BEING ASKED TO
9 AVOID ALL COMMUNICATIONS IN THE EVENT THERE WAS AN ATTEMPT
10 TO CONTACT ME.
11 IS THAT CORRECT?
12 A. THAT'S THE PERCEPTIONS I HAD. THAT'S WHAT I HEARD AND
13 IN FACT THE REASON I REMEMBER IT IS BECAUSE I THOUGHT IT WAS
14 SO ODD, THAT I DID GO BACK AND DISCUSS THAT WITH MY WIFE
15 AFTERWARDS. I REMEMBER THAT IT STRUCK ME AS A VERY ODD
16 THING FOR COUNSEL TO SAY.
17 Q. YOU REMEMBER DISCUSSING IT WITH YOUR WIFE. NOW, YOU'VE
18 TESTIFIED IN COURT TODAY, AS I UNDERSTAND IT, THAT IF YOU
19 WERE CONTACTED -- AS I RECALL YOUR TESTIMONY WAS TO THE
20 EFFECT THAT YOU DIDN'T WANT -- THEY DIDN'T WANT YOU TO BE SO
21 FORTHCOMING WITH YOUR OPINION; IS THAT CORRECT?
22 A. I BELIEVE THOSE ARE THE WORDS I USED IN COURT TODAY,
23 YES.
24 Q. NOW, THAT SEEMS TO ME TO BE DIFFERENT, DOES IT NOT, THAN
25 A STATEMENT, TO AVOID ALL COMMUNICATIONS?
70
1 A. WELL, IF YOU CAN DEFINE THE DIFFERENCE AS YOU HEAR IT,
2 MAYBE I COULD CLARIFY WHAT I MEAN AND WHAT MY PERCEPTION WAS
3 AT THE TIME WHEN WE HAD THE DISCUSSION 'CAUSE IT SOUNDS LIKE
4 WE'RE DEALING WITH YOUR PERCEPTION OTHER THAN WHAT --
5 Q. I GUESS WHAT I'M TALKING ABOUT, DOCTOR, IS THAT YOU
6 STATE IN YOUR AFFIDAVIT THAT YOU WERE ASKED TO AVOID ANY
7 COMMUNICATION, ALL COMMUNICATION, BUT HERE TODAY YOU ARE
8 STATING THAT THEY DIDN'T WANT YOU TO BE AS FORTHCOMING IN
9 YOUR COMMUNICATION WITH THE DEFENSE COUNSEL.
10 MR. STIRBA: THAT MISCHARACTERIZES WHAT THE
11 AFFIDAVIT SAYS. AND SO --
12 MR. WILSON: WELL, I GUESS THAT'S ARGUMENTATIVE.
13 I'LL GO ON.
14 Q. DO YOU REMEMBER MISS BOWMAN OR MISS BARLOW EVER TELLING
15 YOU THAT THEY COULD NOT GIVE YOU ANY LEGAL ADVICE AS TO WHAT
16 YOU COULD SAY TO MR. STIRBA BECAUSE YOU WERE NOT THEIR
17 CLIENT? DO YOU REMEMBER HER STATING THAT TO YOU?
18 A. AS I PREVIOUSLY STATED, I DON'T RECALL MR. STIRBA'S NAME
19 BEING BROUGHT TO MY ATTENTION SPECIFICALLY BEFORE THE TIME
20 THAT WE HAD THAT ETHICS MEETING. IT MAY HAVE BEEN ALLUDED
21 TO. I'M NOT SURE IN WHAT CONTEXT THEY WOULD HAVE BEEN
22 SAYING THEY COULD OR COULD NOT GIVE ME LEGAL COUNSEL 'CAUSE
23 I WASN'T INVOLVED PARTICULARLY IN THE LEGAL PROCEEDINGS. SO
24 I DON'T KNOW WHERE THAT WOULD HAVE COME FROM.
25 Q. YOU DON'T RECALL ALSO HAVING TOLD THEM OR THEM HAVING
71
1 TOLD YOU NOT TO GO PUBLIC WITH THE CASE OR THEY PREFERRED
2 YOU NOT TO GO PUBLIC WITH THE CASE; IS THAT CORRECT?
3 A. I DON'T REMEMBER THEM SAYING, DON'T GO PUBLIC.
4 Q. WELL, INFORMATION TO THE PRESS?
5 A. I DON'T REMEMBER THEM EVER TELLING ME NOT TO CONTACT THE
6 PRESS OR GO PUBLIC. I'M NOT -- AGAIN, I'M NOT SURE WHERE
7 THAT WOULD HAVE COME FROM.
8 Q. DID YOU HAVE OCCASION TO TALK WITH DR. HARE SUBSEQUENT
9 TO YOUR CONVERSATIONS WITH MISS BOWMAN AND MISS BARLOW?
10 A. I RECALL ONE DAY WHEN WE BUMPED INTO EACH OTHER IN
11 CLINIC AFTER I HAD REVIEWED THE CASES. IT MAY WELL HAVE
12 BEEN AFTER THE APRIL 26 MEETING WITH MISS BOWMAN AND MISS
13 BARLOW WHERE I TOLD DR. HARE THAT I HAD FORMED OPINIONS THAT
14 SEEMED TO BE VERY MUCH IN OPPOSITION OR VERY DIFFERENT THAN
15 THE ONES HE HAD -- HE HAD DETERMINED, AND -- BUT I CAN'T
16 RECALL EXACTLY, SOMETIME AFTER THE RECORDS REVIEW, BUT I
17 DON'T RECALL RELATIVE TO THE 26TH.
18 Q. DO YOU RECALL TELLING DR. HARE AT THAT TIME THAT YOU
19 HADN'T REALLY REVIEWED ALL OF THE RECORDS AT THE TIME YOU
20 MET WITH MISS BARLOW AND MISS BOWMAN?
21 A. THAT I SAID THAT TO DR. HARE?
22 Q. UH-HUH.
23 A. NO. I DON'T RECALL SAYING ANYTHING LIKE THAT TO
24 DR. HARE.
25 Q. HAVE YOU EVER BEEN CONSULTED ON ANY OTHER CRIMINAL
72
1 CASES, DOCTOR?
2 A. NO, SIR.
3 Q. HAVE YOU EVER TESTIFIED IN COURT ON ANY CRIMINAL CASES?
4 A. NO, SIR.
5 Q. SO YOU DON'T REALLY HAVE MUCH FAMILIARITY WITH THE RULES
6 AND THE STANDARDS OF CRIMINAL CASES?
7 A. THAT'S NOT MY AREA OF EXPERTISE, NO, SIR.
8 Q. BUT YET OPINED TO MISS BOWMAN AND MISS BARLOW THAT YOU
9 DID NOT FEEL THERE WAS CRIMINAL CONDUCT INVOLVED HERE; IS
10 THAT CORRECT?
11 A. I OPINED THAT IT IS WITHIN MY PURVIEW AND MY EXPERTISE
12 TO DETERMINE THE DIFFERENCE BETWEEN THERAPEUTIC INTENT AND
13 CRIMINAL ACTIVITY, WHICH IS UNDER THE PURVIEW AND THE
14 EXPERTISE I THINK OF PHYSICIANS WHO MANAGE THESE TYPE OF
15 PATIENTS BECAUSE THIS IS AN AREA THAT IS -- THAT IS WIDELY,
16 WIDELY WRITTEN ABOUT IN THE LITERATURE PERTAINING TO
17 PALLIATIVE CARE. AND SO IT'S NOT -- AND IN FACT, WE
18 FREQUENTLY BRING IN LEGAL CONSULTANTS INTO THESE DISCUSSIONS
19 IN ORDER TO GARNER MORE INFORMATION RELATIVE TO STATUTORY
20 LAW AND CRIMINAL LAW.
21 Q. DO YOU RECALL MISS BARLOW TELLING YOU THAT YOUR OPINION
22 AS IT RELATED TO WHETHER OR NOT THE DOCTOR WHO COMMITTED A
23 FIRST DEGREE MURDER WAS NOT AN OPINION YOU COULD EXPRESS IN
24 COURT?
25 A. PLEASE SAY THAT AGAIN.
73
1 Q. DO YOU RECALL MISS BARLOW TELLING YOU THAT YOUR OPINION
2 AS IT RELATED TO YOUR EARLIER STATEMENT THAT THIS WAS NOT A
3 CASE OF FIRST-DEGREE MURDER WAS NOT AN OPINION THAT YOU
4 COULD RELATE IN COURT?
5 A. I DON'T REMEMBER HER ADVISING ME AS TO WHAT I COULD OR
6 COULD NOT OR SHOULD OR SHOULD NOT SAY IN A COURT OF LAW, NO,
7 SIR.
8 Q. YOU DO RECALL A LENGTHY DISCUSSION, AS YOU PUT IN YOUR
9 AFFIDAVIT, CONCERNING -- AGAIN, I READ FROM PARAGRAPH SEVEN.
10 LET ME REPHRASE THE QUESTION.
11 PARAGRAPH SEVEN READS, I RECALL THAT MISS BARLOW
12 SPENT A GOOD PORTION OF THE TIME IN OUR MEETING CONTENDING
13 WITH ME ABOUT WHY SHE BELIEVED DR. WEITZEL HAD COMMITTED
14 FIRST-DEGREE MURDER.
15 IS THAT CORRECT?
16 A. THAT'S CORRECT.
17 Q. SO THERE WERE DISCUSSIONS RELATED TO THE CRIMINAL
18 ASPECTS AND THE INTENT ASPECTS OF THIS CASE; IS THAT
19 CORRECT?
20 A. THAT IS CORRECT.
21 Q. DO YOU RECALL ANY DISCUSSIONS AS IT RELATED TO
22 MANSLAUGHTER?
23 A. WE DID REVIEW -- I REMEMBER THAT WE DID REVIEW THE
24 VARIOUS CATEGORIES OF MURDER OR HOMICIDE, BUT THEY HAD
25 SPECIFICALLY OUTLINED AND DELINEATED THE FIRST-DEGREE MURDER
74
1 PORTION. SO THAT WAS THE AREA WE SPENT THE MOST AMOUNT OF
2 TIME DISCUSSING.
3 Q. YOU RECALL TALKING ABOUT NEGLIGENT HOMICIDE?
4 A. AGAIN, THERE WAS A DISCUSSION THAT RELATED TO ALL OF THE
5 VARIOUS CATEGORIES AND THEY PROVIDED ME WITH THESE
6 DEFINITIONS AND THE SUPPORTING DOCUMENTS.
7 Q. AND AGAIN, YOU DON'T HAVE ANY RECOLLECTION, SIR, DO YOU,
8 AS TO -- OR ANY TRAINING AS IT RELATES TO ANY EXPERTISE IN
9 THE CRIMINAL ARENA; IS THAT CORRECT?
10 A. MY EXPERTISE RELATES TO WHAT'S LEGITIMATE AND
11 ILLEGITIMATE MEDICAL PRACTICE IN THESE TYPE OF PATIENTS.
12 Q. AND AS I UNDERSTAND IT, SIR, YOU HAD SOME REAL CONCERNS
13 ABOUT THE LEGITIMATE PRACTICE OF DR. WEITZEL; IS THAT
14 CORRECT?
15 A. MY CONCERN WAS WITHIN THE RANGE OF LEGITIMATE -- AND
16 ACTUALLY LEGITIMATE PROBABLY IN THIS CONTEXT, IT'S MORE
17 APPROPRIATELY TO STANDARD OF CARE RATHER THAN LEGITIMATE OR
18 ILLEGITIMATE.
19 Q. AND THIS WAS INFORMATION THAT YOU PASSED ONTO THEM IN
20 REGARDS TO THAT HE WAS NOT PRACTICING THE STANDARD OF CARE?
21 A. I SAID THAT I WAS TRYING TO RELATE TO THEM -- AND WHAT
22 THEY HEARD AND WHAT I WAS TRYING TO RELATE MAY NOT BE
23 EXACTLY THE SAME THING -- BUT WHAT I WAS TRYING TO RELATE TO
24 THEM WAS THAT THE STANDARD OF CARE END-OF-LIFE CARE IS
25 WIDELY DIVERGENT AND IN THE MAIN IS QUITE INADEQUATE, AND IT
75
1 HAS BEEN WELL RECOGNIZED, AND I GAVE THEM ALL THE REASONS
2 WHY AND THE DATA TO SUPPORT THAT STATEMENT. AND THAT WHAT
3 DR. WEITZEL WAS DOING IS ON ONE END OF THE SPECTRUM OF HOW
4 PATIENTS ARE TREATED, NOT ONLY AROUND HERE BUT AROUND THE
5 COUNTRY. AND IT'S UNFORTUNATELY MORE COMMON PATIENTS SUCH
6 AS THIS DIE WITH PAIN AND IN EXTREME CIRCUMSTANCES OF
7 DISTRESSING SYMPTOMS RATHER THAN SOMEBODY TRYING IN GOOD
8 FAITH TO RELIEVE THOSE SYMPTOMS.
9 Q. JUST A FEW MORE QUESTIONS. YOU TESTIFIED YOU DIDN'T
10 HAVE AN AGENDA; IS THAT CORRECT?
11 A. OR WORDS TO THAT EFFECT.
12 Q. BUT YOU ALSO TESTIFIED, AS I UNDERSTAND IT, THAT YOU
13 WERE CONCERNED ABOUT THE EFFECT THIS CASE MIGHT HAVE ON PAIN
14 MANAGEMENT; IS THAT CORRECT?
15 A. I DON'T RECALL TESTIFYING TO THAT.
16 Q. WERE YOU CONCERNED ABOUT THE EFFECT THAT THIS CASE WOULD
17 HAVE ON PAIN MANAGEMENT, SIR?
18 A. I THINK, YEAH. I THINK IN MY MIND -- MIND'S EYE, EVERY
19 CASE THAT GOES FORWARD THAT DEALS WITH ISSUES AROUND THIS,
20 THERE ARE CONCERNS WHETHER THEY WILL BE INTERPRETED
21 CORRECTLY OR NOT.
22 Q. IN FACT, THAT WAS THE GIST OF THE MEETING ON AUGUST THE
23 15TH THAT YOU ATTENDED FOR, I GUESS YOU WOULD CALL IT, THE
24 MEDICAL ETHICS COMMITTEE OR THE COMMITTEE THAT MET ON THAT
25 DATE WHERE I WAS PRESENT, MISS BARLOW WAS PRESENT?
76
1 A. THAT EVENING MEETING, THE ONE -- I CAN'T REMEMBER THE
2 DATE WHERE YOU WERE THERE. I'M NOT SURE THE GIST. THE GIST
3 WAS MANYFOLD. I MEAN, I THINK THAT THE MAIN ISSUE WAS TO
4 REVIEW THE MEDIA'S COVERAGE OF THAT CASE AND THEIR
5 INTERPRETATION. I THINK THAT WAS THE MAIN THRUST AND THEN,
6 YOU KNOW, MANY OTHER ISSUES SORT OF EMANATED FROM THAT
7 DISCUSSION. THERE WERE -- IT WAS MULTIVARIED. IT WAS NOT
8 JUST ONE SINGLE ISSUE THAT CAME UP PARTICULARLY. BUT I
9 THINK THAT THE MAIN THRUST WAS -- AND I THINK THAT, IF I'M
10 REMEMBERING, THE MATERIALS THAT WERE DISTRIBUTED IN ADVANCE
11 OF THAT MEETING TO REVIEW ABOUT ALL OF THE PRESS CLIPPINGS
12 REGARDING THIS CASE.
13 Q. YOU WERE CONCERNED ABOUT THE IMPACT THAT CASE WOULD HAVE
14 ON THE PRACTICE OF MEDICINE, WERE YOU NOT?
15 A. YES. I CERTAINLY HAD CONCERNS THAT WHEN THINGS ARE
16 MISINTERPRETED OR MISCHARACTERIZED, IT COULD INFLUENCE
17 PRACTITIONERS' BEHAVIOR. I THINK THAT'S A VERY, VERY
18 LEGITIMATE CONCERN AND THAT'S BEEN ECHOED BY MANY OTHERS
19 OTHER THAN MYSELF.
20 Q. DO YOU RECALL DISCUSSING THE CONGRESSIONAL BILLS I THINK
21 THAT WERE PASSED RECENTLY IN REFERENCE TO END-OF-LIFE CARE
22 WITH CHARLENE BARLOW AND MISS BOWMAN?
23 A. WELL, THE ONLY BILL THAT'S BEEN PASSED RECENTLY WAS A
24 BILL THAT MADE THIS DECADE, STARTING WITH THE YEAR 2001 TO
25 2010, THE DECADE OF PAIN MANAGEMENT RESEARCH. I DON'T THINK
77
1 WE SPECIFICALLY ADDRESSED THAT BILL. OTHER BILLS, THERE ARE
2 MANY BILLS BEFORE THE HOUSE AND SENATE THAT REFER TO PAIN
3 RELIEF AND PROMOTION OF IMPROVING END-OF-LIFE CARE BECAUSE
4 OF --
5 Q. I TAKE IT YOU ARE ACTIVELY INVOLVED IN THOSE PARTICULAR
6 PROCESSES AS FAR AS THE -- AS TO SUPPORTING LEGISLATION IN
7 THAT ARENA?
8 A. I'M NOT ACTIVELY INVOLVED IN LEGISLATIVE ACTIVITIES PER
9 SE. YOU'D HAVE TO DEFINE IT MORE.
10 Q. ARE YOU ACTIVELY INVOLVED IN ANY GROUPS THAT FOR
11 PURPOSES OF THEIR BELIEFS THAT THEY PURSUE LEGISLATION
12 BEFORE CONGRESS?
13 A. WELL, I CERTAINLY HAVE MY PERSONAL OPINIONS AND I BELONG
14 IN LEADERSHIP POSITIONS IN SOME OF THE ORGANIZATIONS,
15 MEDICAL ORGANIZATIONS THAT REPRESENT -- FOR INSTANCE, THE
16 AMERICAN PAIN SOCIETY, AMERICAN ACADEMY OF PAIN AND
17 PALLIATIVE MEDICINE THAT DO RENDER OPINIONS ABOUT THIS TYPE
18 OF LEGISLATION AND SO ON. BUT I'M NOT DIRECTLY INVOLVED IN
19 CREATING LEGISLATION OR LOBBYING OR -- I DON'T HAVE THAT
20 KIND OF POWER OR INFLUENCE.
21 Q. WELL, I TAKE IT, THOUGH, THAT IN YOUR DEVELOPMENT OF
22 YOUR EXPERTISE IN THIS AREA, YOU ARE CONCERNED ABOUT ANY
23 DEVELOPMENT THAT WOULD IMPEDE YOUR ABILITY TO RENDER THE
24 CARE AS YOU SEE IT AS A PHYSICIAN; IS THAT RIGHT?
25 A. I THINK MEDICINE AS A WHOLE OF WHICH AGAIN, AS I SAID,
78
1 ONE OF MY DUTIES AS A PHYSICIAN IS TO ADVOCATE FOR THE
2 INTEGRITY OF THE PROFESSION AND THAT THE PROFESSION AS A
3 WHOLE DOES RENDER OPINIONS ABOUT ANY LEGISLATION WHICH MAY
4 CREATE BARRIERS BETWEEN -- REGARDING GOOD CARE OF PATIENTS,
5 CERTAINLY.
6 Q. AND IS IT NOT TRUE THAT ON THAT PARTICULAR DAY ON
7 APRIL 26, THAT YOU EXPRESSED TO MISS BOWMAN AND MISS BARLOW
8 THAT YOU FELT THAT IN RESPECT TO PAIN MANAGEMENT THAT THE
9 ELDERLY WERE UNDER TREATED.
10 A. I REVEALED TO THEM ALL THE DATA AND ALL THE EVIDENCE
11 THAT VALIDATES ACTUALLY THE STATEMENT THAT YOU JUST MADE,
12 YES, SIR.
13 Q. OKAY. I HAVE NO FURTHER QUESTIONS.
14 THE COURT: ANYTHING FURTHER OF THIS WITNESS?
15 MR. STIRBA: I DO, YOUR HONOR.
16 REDIRECT EXAMINATION
17 BY MR. STIRBA:
18 Q. DOCTOR, COULD YOU EXPLAIN, PLEASE, WHAT YOU MEANT OR
19 WHAT YOU TESTIFIED TO IN TERMS OF CONCERNS THAT YOU HAD IN
20 TERMS OF PAIN MANAGEMENT AS A RESULT OF THE
21 MISCHARACTERIZATION OR THE MISINTERPRETATION OF FACTS IN
22 THIS CASE? WOULD YOU EXPLAIN TO THE COURT, PLEASE, WHAT
23 YOUR CONCERNS WERE?
24 A. WELL, MY CONCERNS WERE THAT THERE WAS OPINIONS GIVEN
25 THAT THERE WAS NO BASIS FOR TREATING THESE PATIENTS AS
79
1 HAVING PAIN, AND THERE WAS AMPLE EVIDENCE THROUGHOUT THE
2 MEDICAL RECORDS THAT I HAD REVIEWED THAT THERE WAS
3 SIGNIFICANT PAIN CONCERNS WITH THESE PATIENTS. AND THAT IT
4 IS WELL KNOWN, IN FACT, IN THIS POPULATION THAT PAIN IS A
5 PREVALENT CONDITION AND THAT THESE PATIENTS MORE FREQUENTLY
6 THAN NOT DO DIE IN PAIN AS WELL AS WITH OTHER SYMPTOMS. AND
7 SO MISCHARACTERIZATION OF THESE PATIENTS IN PARTICULAR AS
8 NOT HAVING PAIN, BASED UPON THE EVIDENCE IN THE CHARTS, WAS
9 OF GREAT CONCERN TO ME.
10 Q. IS THERE A DIFFERENCE BETWEEN END-OF-LIFE CARE AND
11 HOSPICE CARE?
12 A. WELL, ANYTHING THAT'S -- ANYTHING THAT'S RENDERED TO A
13 PATIENT AT THE TIME THEY ARE DYING COULD BE CALLED
14 END-OF-LIFE CARE. DOESN'T QUALIFY IT ONE WAY OR ANOTHER.
15 HOSPICE IS A SPECIFIC SORT OF SYSTEM OF CARE TO PROVIDE THE
16 BEST END-OF-LIFE CARE. IT'S THE ONLY MODEL FOR
17 COMPREHENSIVE END-OF-LIFE CARE THAT EXISTS. I'M SURE IT
18 COULD BE IMPROVED UPON AS WELL, BUT RIGHT NOW IT SERVES AS
19 THE ONLY CLINICAL MODEL OR SYSTEM OF CARE FOR DYING
20 PATIENTS.
21 Q. IS IT YOUR OPINION THAT WHAT YOU OBSERVED, BASED UPON
22 THE REVIEW OF THE RECORDS, IS THAT DR. WEITZEL WAS PROVIDING
23 END-OF-LIFE CARE AS OPPOSED TO HOSPICE CARE?
24 A. YES, SIR.
25 Q. AND SO THEREFORE, YOUR TESTIMONY ABOUT THE REQUIREMENTS
80
1 AND THE PROTOCOLS RELEVANT TO SYSTEMATIC HOSPICE CARE REALLY
2 HAVE NO APPLICATION TO THE END-OF-LIFE CARE THAT YOU
3 DETERMINED WAS BEING GIVEN BY DR. WEITZEL?
4 A. I THINK THAT'S A FAIR STATEMENT AND, YOU KNOW, YOU KNOW,
5 THE FACTS BEING THAT HOSPICE CARE IS ONLY RENDERED IN A
6 MINORITY OF CASES -- IN FACT, 16 PERCENT OF PATIENTS WHO ARE
7 ELIGIBLE FOR HOSPICE EVER GET HOSPICE CARE IN LONG-TERM CARE
8 FACILITIES. ONLY ONE PERCENT OF PATIENTS EVER GET ANY FORM
9 OF HOSPICE CARE AND YET 20 PERCENT OF PATIENTS WHO DIE IN
10 THIS COUNTRY DIE IN LONG-TERM CARE FACILITIES.
11 Q. NOW, YOU'VE TESTIFIED ABOUT -- WERE ASKED SOME QUESTIONS
12 ABOUT THE NURSING -- THE NURSING HOME NOTES OR THE RECORDS
13 THAT PREDATED THE ADMISSION OF THESE PATIENTS TO THE
14 HOSPITAL. DO YOU RECALL THAT?
15 A. YES.
16 Q. AND I BELIEVE YOU TESTIFIED THEY MAY HAVE SOME
17 IMPORTANCE FOR PURPOSES OF UNDERSTANDING OF THIS CASE. IS
18 THAT A FAIR STATEMENT?
19 A. YES.
20 Q. AND EXPLAIN WHY THAT IS, AND THAT THOSE PARTICULAR
21 RECORDS MIGHT HAVE SOME IMPORTANCE FOR PURPOSES OF
22 UNDERSTANDING?
23 A. I THINK IF THE ENTIRE CLINICAL PROGRESSION OF THESE
24 PATIENTS' DISEASE AND THE INTERACTIONS AND THE DISCUSSIONS
25 OF ADVANCED DIRECTIVES, THE AWARENESS OF THE FAMILY MEMBERS
81
1 ABOUT WHAT WAS GOING ON, WHAT THE NATURAL HISTORY OR
2 INTERVENTIONAL HISTORY -- BECAUSE THOSE ARE TWO DIFFERENT
3 THINGS -- AND WHAT THE PROGNOSIS MAY BE UNDER THOSE
4 DIFFERENT CIRCUMSTANCES MIGHT BE AND THE CARE OF THESE CASES
5 AND WHAT THE INEVITABLE OUTCOME OF PATIENTS WHO HAVE THESE
6 CLINICAL CONDITIONS ARE, THAT WOULD CAST A GREAT DEAL OF
7 LIGHT ON AN EVALUATION OF THIS STANDARD OF CARE AS MET OR
8 NOT MET AND WHY WHAT HAPPENED HAPPENED IN THESE CASES. THE
9 CHOICES MADE, WHETHER PREFERENCES WERE ADHERED TO OR NOT,
10 WHETHER THE PATIENTS -- OR THE PATIENT WOULDN'T BE -- BUT
11 THE FAMILIES MAY OR MAY NOT HAVE BEEN SURPRISED BY WHAT WAS
12 GOING ON WITH THEIR LOVED ONES, WITH THEIR FAMILY MEMBERS,
13 AND SO ON. SO AGAIN, IT WOULD BE IMPORTANT FOR CONTEXTUAL
14 UNDERSTANDING.
15 Q. AND I THINK I ASKED YOU THIS BEFORE. I DON'T MEAN TO
16 REPEAT IT. I WANT TO MAKE SURE, BUT IS THAT IN SUBSTANCE
17 THAT IS INFORMATION THAT YOU EXPLAINED IN YOUR MEETING ON
18 THE 26TH TO THE PROSECUTORS?
19 A. TO THE BEST OF MY RECOLLECTION, IT WAS IN THAT FORM OF
20 DISCUSSION.
21 Q. NOW, YOU WERE ASKED QUESTIONS ABOUT MR. ALLDREDGE AND
22 THE STATEMENT ABOUT THAT THE OPIATES MAY HAVE HASTENED HIS
23 DEATH.
24 A. YES.
25 Q. WAS THERE A CONTEXT IN WHICH YOU MADE THAT STATEMENT
82
1 THAT WOULD ASSIST IN FURTHER UNDERSTANDING WHAT YOU MEANT BY
2 THAT?
3 A. I BELIEVE SO.
4 Q. WOULD YOU PLEASE EXPLAIN THAT TO THE COURT?
5 A. WELL, IN VERY FRAIL, ELDERLY PATIENTS WHO ARE CRITICALLY
6 ILL OR EVEN NOT CRITICALLY ILL, BUT IN HIS CASE HE DID HAVE
7 SIGNIFICANT MEDICAL PROBLEMS. THERE'S ALWAYS THE
8 POSSIBILITY THAT THE OPIOID ANALGESICS THAT WE USE TO TREAT
9 PAIN CAN IN FACT HASTEN DEATH EVEN THOUGH THAT IS NOT THE
10 INTENT OF THE THERAPY. JUST LIKE WE DON'T GO INTO THE
11 OPERATING ROOM TO OPERATE ON KIDS WITH HOLES IN THEIR HEART
12 IN ORDER TO KILL THEM, BUT IT TURNS OUT THE MORTALITY FROM
13 THAT PROCEDURE IS VERY, VERY HIGH. OUR INTENT IS TO GIVE
14 THEM THE OPPORTUNITY FOR THE THERAPEUTIC OUTCOME WE'RE
15 LOOKING FOR; IN THAT CASE IT WOULD BE TO HAVE AN EXTENDED
16 LIFE. IN THE CASE OF THESE PATIENTS, IT'S TO MITIGATE
17 AGAINST DISTRESSING SYMPTOMS AND THE -- AND THE POTENTIAL IS
18 ALWAYS THERE FOR AN OUTCOME THAT WE'RE NOT SEEKING, IN THIS
19 CASE DEATH OR HASTENED DEATH. AND SOMETIMES IT'S MORE
20 ANTICIPATABLE THAN NOT. BUT THE RULES, THE RULES OF
21 MEDICINE REGARDING, AND THE ETHICAL RULES REGARDING THIS
22 TYPE OF CARE ARE THAT THE DUTY TO PROVIDE SYMPTOM RELIEF
23 OVERRIDES THE POSSIBILITY OF HASTENING DEATH.
24 Q. THAT DUTY, DID YOU EXPLAIN THAT DUTY IN THE CONTEXT OF
25 YOUR MEETING ON THE 26TH?
83
1 A. YES.
2 Q. AND DO YOU RECALL WHAT YOU SAID IN THAT REGARD TO THE
3 PROSECUTORS?
4 A. I BELIEVE I REVIEWED SORT OF THE ETHICAL CONSTRUCT
5 AROUND WHICH THIS TYPE OF MEDICINE OR CARE IS GIVEN, AND IT
6 HINGES UPON THERAPEUTIC INTENT AND THE SO-CALLED PRINCIPLE
7 OF DOUBLE EFFECT.
8 Q. AND DID YOU EXPLAIN THE PRINCIPLE OF DOUBLE EFFECT IN
9 YOUR MEETING ON THE 26TH?
10 A. I BELIEVE SO, YES.
11 Q. AND WHAT IS DOUBLE EFFECT?
12 A. DOUBLE EFFECT IS ACTUALLY A VERY OLD ETHICAL PRINCIPLE
13 THAT HAS SORT OF EMERGED AS SORT OF A LEADING ETHICAL
14 PRINCIPLE IN DEALING WITH PATIENTS WITH FAR-ADVANCED DISEASE
15 IN ORDER TO ALLOW FOR THE DUTY OF RENDERING SYMPTOM
16 MANAGEMENT AND COMFORT CARE SO THAT THERE IS NO BARRIER TO
17 DOING THAT WITH THE FEAR OF IN FACT HASTENING DEATH AND, IN
18 FACT, LEADING TO CRIMINAL PROSECUTION FOR NON-CRIMINAL
19 ACTIONS. AND THERE ARE FOUR COMPONENTS TO THIS PRINCIPLE.
20 THE FIRST IS THAT THERE MUST BE AN IDENTIFIED
21 THERAPEUTIC OR BENEFICENT, BENEFICIAL THERAPEUTIC ACTION
22 SUCH AS RELIEF OF PAIN. NUMBER TWO IS THAT THERE MUST BE A
23 FORESEEABLE ADVERSE OR UNDESIRABLE CONSEQUENCE SUCH AS
24 HASTENING DEATH OR KILLING, THAT THAT IS A POSSIBILITY.
25 IT'S FORESEEABLE, OTHERWISE, IF IT WASN'T FORESEEABLE THERE
84
1 WOULD BE NO BASIS FOR THE PRINCIPLE. THIRDLY, THAT -- THAT
2 THE GOOD ACTION, THE INTENDED ACTION, LIKE PAIN RELIEF,
3 CAN'T COME ABOUT ONLY FROM THE UNINTENDED OR THE ADVERSE
4 ACTION. IN OTHER WORDS, YOU CANNOT KILL A PERSON ON PURPOSE
5 IN ORDER TO MAKE SURE THAT THEY ARE NOT IN PAIN. IN OTHER
6 WORDS, YOU CAN'T HAVE PALLIATION BY DEATH. THAT'S NOT THE
7 ACTION. AND FOURTH IS THAT THERE'S A REQUIREMENT FOR
8 INFORMED CONSENT; THAT IS, THERE MUST BE SOME PROCESS
9 INVOLVING PATIENTS OR THE SURROGATES WHERE THEY UNDERSTAND
10 THE CONSEQUENCES OF THESE MEDICAL ACTIONS.
11 Q. BASED UPON YOUR REVIEW, DID YOU FIND THE OPERATION OF
12 THAT PRINCIPLE EXISTENT WITH RESPECT TO THE CARE PROVIDED TO
13 ANY OF THESE PATIENTS?
14 A. I FOUND THAT IN REVIEWING THESE RECORDS, THOSE CRITERIA
15 SEEMED TO HAVE BEEN MET, MORE SO THAN MOST RECORDS WHICH I
16 REVIEWED FOR EVALUATION OF ADEQUACY OF CARE UNDER SIMILAR
17 CIRCUMSTANCES.
18 Q. WITHOUT REFERRING SPECIFICALLY TO A RECORD OR THE
19 RECORDS, CAN YOU, OFF THE TOP OF YOUR HEAD, GIVE THE COURT
20 AN EXAMPLE OF HOW YOU FOUND THIS OPERATIONAL WITH RESPECT TO
21 ANY OF THESE PATIENTS?
22 A. IN THE EVALUATION NOTES OR PROGRESS NOTES, THERE WAS
23 WORDS TO THE EFFECT THAT ATTEMPTS AT RELIEVING SYMPTOMS FOR
24 WHICH THESE PATIENTS WERE INITIALLY ADMITTED, WHICH WAS
25 REALLY DELIRIUM OR PSYCHOSIS, WAS NOT RESPONDING AND THAT
85
1 THERE APPEARED TO BE PAIN BEHAVIORS IN EVIDENCE. AND THAT
2 DISCUSSIONS OF ONE SORT OR ANOTHER WERE TAKING PLACE WITH
3 FAMILY MEMBERS AND THAT -- THAT THERAPEUTIC INTENT SEEMED TO
4 BE LINKED TO THE MEDICAL ORDERS FOR USE OF ANALGESICS.
5 Q. THE OPINION THAT YOU JUST TESTIFIED TO THAT YOUR FINDING
6 WAS THAT THIS PRINCIPLE WAS OPERATIVE WITH RESPECT TO THESE
7 PATIENTS, DID YOU STATE THAT TO THE PROSECUTORS IN THE
8 MEETING?
9 A. YES, AND THAT WAS THE BASIS ACTUALLY OF MY OPINION.
10 Q. AND DID YOU ALSO PROVIDE THEM THE ADDED OBSERVATION THAT
11 YOU FOUND THIS ESSENTIALLY BETTER DOCUMENTED IN THIS
12 PARTICULAR CIRCUMSTANCE THAN OTHER CIRCUMSTANCES THAT YOU'VE
13 SEEN?
14 A. YOU KNOW, IN ONE WAY OR ANOTHER -- I MEAN, THOSE WEREN'T
15 MY WORDS SPECIFICALLY -- BUT THAT WAS THE INTRINSIC MESSAGE
16 I WAS TRYING TO DELIVER WAS THAT THESE WERE EXAMPLES WHERE
17 THERE SEEMED TO BE AGAIN, A GOOD FAITH ATTEMPT TO PROVIDE
18 DIGNIFIED END-OF-LIFE CARE FOR THESE PATIENTS. AND THIS WAS
19 ACTUALLY AT ODDS WITH, SADLY, HOW MOST PATIENTS DIE IN THIS
20 COUNTRY WITH SIMILAR DISEASE PROCESS.
21 MR. STIRBA: THAT'S ALL I HAVE, JUDGE. THANKS.
22 THE COURT: ANYTHING FURTHER OF THIS WITNESS?
23 RECROSS-EXAMINATION
24 BY MR. WILSON:
25 Q. DID I UNDERSTAND YOU RIGHT, DOCTOR, TO SAY THAT THE
86
1 ENTIRE CLINICAL RECORD WOULD HAVE BEEN IMPORTANT TO YOU TO
2 HAVE REVIEWED IN RESPECT TO THESE FIVE PATIENTS?
3 A. IN ORDER TO DO A COMPREHENSIVE STANDARD-OF-CARE REVIEW,
4 AND TO GIVE -- TO SERVE THAT PURPOSE, IT WOULD HAVE BEEN
5 VERY HELPFUL TO HAVE THOSE RECORDS.
6 Q. AND YOU DID NOT HAVE THOSE RECORDS; IS THAT CORRECT?
7 A. NO, I DID NOT.
8 Q. AND SO YOU WERE NOT ABLE TO MAKE, AT THAT POINT ANYWAY,
9 AN OPINION BASED UPON ALL OF THE CLINICAL RECORDS; IS THAT
10 CORRECT?
11 A. I FELT THAT I HAD ADEQUATE RECORDS TO MAKE AN OPINION
12 ABOUT THE PATIENTS' TERMINAL PROGNOSIS AND THE CIRCUMSTANCES
13 UNDER WHICH, IN THIS CASE, DR. WEITZEL WAS OPERATING, WHICH
14 WAS WITH TERMINALLY ILL PATIENTS' FAR-ADVANCED DISEASE, PAIN
15 DISTRESSING SYMPTOMS AND SEVERE, SEVERE DISTRESS.
16 Q. LET ME JUST ASK YOU A QUESTION IN RESPECT -- YOU'VE
17 PREVIOUSLY INDICATED TO COUNSEL THAT YOU TALKED TO THE
18 PROSECUTORS AS IT RELATES TO THIS DOUBLE EFFECT DOCTRINE; IS
19 THAT CORRECT?
20 A. YES.
21 Q. AND I DON'T KNOW WHETHER YOU CAN TELL US IN YOUR OWN
22 WORDS. JUST EXACTLY WHAT DID YOU TELL THEM IN RESPECT TO
23 THE TREATMENT OF THESE PATIENTS AS IT APPLIES TO THIS TYPE
24 OF DOCTRINE?
25 A. THAT, I MEAN, IT WOULD HAVE BEEN -- AGAIN, IT WAS A
87
1 LENGTHY DISCUSSION. WE WENT BACK AND FORTH ABOUT THESE
2 ISSUES. BUT AGAIN, THE THRUST OF MY DISCUSSION WAS THAT --
3 THAT IT APPEARED THAT FROM THE -- AGAIN, THE RECORDS UNDER
4 REVIEW THAT THE BASIC TENETS OF THIS DOCTRINE WERE MET AND
5 THAT IF DEATH INDEED WAS HASTENED, IF THERE WAS AN ARGUMENT
6 COULD BE MADE THAT THESE PATIENTS MAY HAVE DIED TWO DAYS,
7 FOUR DAYS, EVEN WEEKS LATER WAS NOT SO MUCH RELEVANT AS
8 WHETHER THERE WAS A GOOD FAITH ATTEMPT TO RELIEVE SYMPTOMS
9 THAT COULD NOT OTHERWISE HAVE BEEN RELIEVED WITH OTHER
10 MEANS.
11 Q. DID YOU FIND IT -- YOU'VE PREVIOUSLY -- I THINK YOU'VE
12 TESTIFIED THAT AT THE TIME OF THEIR ADMISSION TO THE
13 GEROPSYCH UNIT THEY WERE NOT EVALUATED AS IT RELATED TO ANY
14 TERMINAL CONDITION; IS THAT CORRECT?
15 A. THERE WAS NO FORMAL EVALUATIVE STATEMENTS THAT SAID
16 THESE SPECIFIC CRITERIA HAVE BEEN MET, THEREFORE, THIS
17 PATIENT HAS A LIFE-LIMITING PROGNOSIS AND A CARE PLAN
18 DEVELOPED FROM THAT POINT. AND THAT WAS THE NATURE OF MY
19 CRITICISM WHEN I USED THOSE DEROGATORY WORDS OR PEJORATIVE.
20 Q. IN FACT, DOCTOR, IT'S TRUE, IS IT NOT, THAT YOU HAVE NO
21 ABILITY TO EVALUATE, FROM THE MEDICAL RECORDS THAT YOU HAD,
22 THE TERMINALITY OR, IF YOU WILL, THE TERMINAL CONDITION OF
23 THESE PATIENTS AT THE TIME THEY WERE ADMITTED.
24 A. THAT'S ACTUALLY NOT TRUE. THE REASON I WAS ABLE TO MAKE
25 THE STATEMENTS I MADE WAS BECAUSE THERE SEEMED TO BE
88
1 ADEQUATE INFORMATION IN THOSE MEDICAL RECORDS THAT SHOULD
2 THAT EVALUATIVE PROCESS HAD GONE ON, IT ACTUALLY -- WE
3 PROBABLY WOULD NOT BE HERE TODAY. AND IT IS THE NECESSITY
4 FOR PHYSICIANS TO RECOGNIZE AND PROSPECTIVELY DO THESE
5 EVALUATIONS IN ORDER TO ASSURE THAT WE IMPROVE BOTH THE
6 STANDARD OF CARE AND KEEP THEM OUT OF TROUBLE.
7 Q. I THINK YOUR TESTIMONY HAS BEEN TO THE FACT THAT YOU
8 FELT LIKE THE DOCTOR WAS GIVING PROPER END-OF-LIFE CARE; IS
9 THAT CORRECT?
10 A. THAT IS CORRECT.
11 Q. NOW, IN RESPECT TO DETERMINING THE TERMINALITY OF THOSE
12 PATIENTS, DID YOU EXPRESS TO THE PROSECUTORS AS TO WHETHER
13 OR NOT THAT PATIENT WAS IN A CONDITION WHERE THEY WOULD DIE
14 WITHIN DAYS?
15 A. I'M NOT SURE IF WE FRAMED THINGS IN A MATTER OF DAYS,
16 BUT ONE WOULD NOT GIVE END-OF-LIFE CARE IF A PATIENT -- I
17 MEAN, IT WOULD BE INAPPROPRIATE TO GIVE END-OF-LIFE CARE IF
18 A PATIENT WAS NOT AT THE END OF LIFE. AND WHAT I WAS
19 STATING TO THE PROSECUTION WAS, THERE WAS PLENTY OF EVIDENCE
20 IN THESE MEDICAL RECORDS THAT THESE PATIENTS INDEED WERE AT
21 THE END OF LIFE. AND -- AND -- AND IT APPEARED THAT -- THAT
22 THAT WAS WHAT WAS GOING ON HERE.
23 Q. IN RESPECT TO THE GEROPSYCH UNIT ITSELF, DID YOU HAVE
24 CONCERNS AS IT RELATED TO THE PATIENTS BEING GIVEN
25 END-OF-LIFE CARE IN A GEROPSYCH UNIT?
89
1 A. I THINK I EXPRESSED THE OPINION THAT IN MY VIEW AND FROM
2 MY EXPERIENCE, THAT THESE PATIENTS WOULD HAVE BEEN BETTER
3 TREATED, AS I BELIEVE MOST PATIENTS WOULD BE BETTER TREATED,
4 ONCE DETERMINED TO HAVE LIFE-LIMITING ILLNESS UNDER A MORE
5 COMPREHENSIVE END-OF-LIFE CARE TYPE OF PROGRAM AS
6 EXEMPLIFIED BY HOSPICE. AND THAT MY CRITICISM WAS THAT THE
7 TYPES OF SUPPORTIVE CARE SERVICES THAT HOSPICE PROVIDES AND
8 NOT ONLY HELPS THE PATIENT BUT IS GREATLY HELPFUL TO
9 FAMILIES IS RARE AND IS -- IS RARELY, AS I'VE EXPRESSED NOW
10 MANY TIMES -- IS RARELY PROVIDED AND THAT WAS JUST ANOTHER
11 CASE IN POINT. THIS WAS VERY TYPICAL OF WHAT -- OF WHAT
12 HAPPENS IN MOST HEALTH CARE FACILITIES.
13 Q. THANK YOU, DOCTOR. I HAVE NO FURTHER QUESTIONS.
14 MR. STIRBA: I HAVE NOTHING FURTHER.
15 (CONCLUSION OF DR. FINE'S TESTIMONY.)
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