Bradford Hare, MD Physicians should note this quote>> And this one>>
14 BRADFORD HARE,
15 CALLED AS A WITNESS, BEING FIRST DULY SWORN TO TELL THE
16 TRUTH, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
17 DIRECT EXAMINATION
18 BY MR. WILSON:
19 Q. DR. HARE, WOULD YOU STATE YOUR NAME FOR THE RECORD,
20 PLEASE.
21 A. BRADFORD D. HARE, H-A-R-E.
22 Q. AND WHERE ARE YOU CURRENTLY EMPLOYED, SIR?
23 A. I'M ON THE FACULTY AT THE UNIVERSITY OF UTAH IN THE
24 DEPARTMENT OF ANESTHESIOLOGY IN THE COLLEGE OF MEDICINE.
25 Q. OKAY. SIR, CAN YOU TELL US WHAT DEGREES DO YOU
2530
1 PRESENTLY HOLD?
2 A. I HAVE A B.S. DEGREE IN PHARMACY. I HAVE A PH.D. IN
3 PHARMACOLOGY. I HAVE AN M.D. DEGREE.
4 Q. AND CAN YOU TELL US WHEN YOU OBTAINED YOUR PH.D. IN
5 PHARMACOLOGY?
6 A. I THINK TECHNICALLY IT WAS IN 1974, BUT I RECEIVED THE
7 DEGREE AT THE SAME TIME I DID MY MEDICAL DEGREE, IN 1975.
8 Q. OKAY. SO YOU RECEIVED BOTH YOUR MEDICAL DEGREE AND YOUR
9 PH.D. IN PHARMACOLOGY ESSENTIALLY AT THE SAME TIME?
10 A. I DID.
11 Q. EXPLAIN TO THE JURY WHAT IS THE STUDY OF PHARMACOLOGY?
12 A. PHARMACOLOGY IS THE DISCIPLINE THAT STUDIES THE EFFECTS
13 OF DRUGS, MEDICATIONS.
14 Q. YOU SAID YOU HAD A B.S. DEGREE IN THAT PARTICULAR AREA
15 OF STUDY?
16 A. I ACTUALLY HAVE A PHARMACY DEGREE, WHICH WAS JUST FOR
17 THE PRACTICE OF PHARMACY. BUT THEN AFTER THAT I DID MY
18 GRADUATE WORK IN PHARMACOLOGY, WHICH IS A SUBSPECIALTY
19 WITHIN PHARMACY, I GUESS YOU COULD SAY.
20 Q. OKAY. AS TO THE MEDICAL DEGREE, DID YOU RECEIVE ANY
21 SPECIFIC TRAINING ALSO RELATED TO THE ADMINISTRATION OF
22 MEDICATIONS?
23 A. AS PART OF MY MEDICAL DEGREE I GUESS I HAD THE STANDARD
24 EXPERIENCE THAT MEDICAL STUDENTS DO. BUT THEN I HAD
25 TRAINING AFTER MEDICAL SCHOOL, A YEAR OF PEDIATRICS AND TWO
2531
1 YEARS OF ANESTHESIA TRAINING, AND THEN A YEAR OF TRAINING IN
2 THE SPECIALTY OF PAIN MANAGEMENT. IN THOSE AREAS I RECEIVED
3 MUCH MORE TRAINING IN GIVING MEDICATIONS AND THEIR EFFECTS.
4 Q. I'D LIKE YOU TO CONCENTRATE, AS TO YOUR GENERAL MEDICAL
5 DEGREE, WHAT TYPE OF TRAINING DID YOU RECEIVE IN RESPECT TO
6 THE ADMINISTRATION OF DRUGS?
7 A. WE HAD A CLASS IN PHARMACOLOGY WHICH DEALT WITH, AGAIN,
8 MEDICATIONS AND THEIR EFFECTS, SIDE EFFECTS AND SO ON. WE
9 HAD EXPERIENCES WITH PATIENTS IN OUR SECOND -- WELL, THE
10 THIRD AND FOURTH YEAR OF MEDICAL SCHOOL WHERE WE WERE
11 WORKING WITH PATIENTS IN A CLINICAL SETTING. IN THERE WE
12 WERE PRESCRIBING MEDICATIONS UNDER DIRECTION, SEEING THEIR
13 EFFECTS, WORKING WITH PATIENTS IN THAT REGARD.
14 Q. I SEE. YOU INDICATED THAT YOU HAD FURTHER TRAINING AS
15 RELATED TO SPECIALIZED TRAINING IN ANESTHESIOLOGY?
16 A. YES.
17 Q. ARE YOU BOARD CERTIFIED IN ANESTHESIOLOGY?
18 A. I AM.
19 Q. DO YOU HOLD ANY OTHER CERTIFICATES OR BOARD
20 CERTIFICATIONS?
21 A. I'M ALSO BOARD CERTIFIED IN PAIN MANAGEMENT AS PART OF
22 MY ANESTHESIOLOGY CERTIFICATION.
23 Q. OKAY. SO THIS WAS -- WHEN DID YOU RECEIVE THOSE
24 PARTICULAR BOARD CERTIFICATIONS?
25 A. MY BOARD CERTIFICATION IN ANESTHESIOLOGY WAS IN 1979.
2532
1 THE SPECIALTY CERTIFICATION IN PAIN MANAGEMENT WAS IN 1993.
2 Q. OKAY. AS TO YOUR ANESTHESIOLOGY BACKGROUND, CAN YOU
3 TELL ME HOW LONG HAVE YOU BEEN PRACTICING IN THAT PARTICULAR
4 SPECIALTY?
5 A. I'VE ACTUALLY BEEN OUT OF TRAINING AND IN PRACTICE --
6 THIS WOULD BE MY 21ST YEAR.
7 Q. CAN YOU TELL THE JURY, IF YOU WOULD, WHAT THAT TYPE OF
8 PRACTICE ENTAILS?
9 A. THE PRACTICE OF ANESTHESIOLOGY WOULD INVOLVE THE
10 ADMINISTRATION OF ANESTHETICS TO PATIENTS UNDERGOING
11 SURGERY. THAT'S AT LEAST A BIG PART OF IT. UNDER THOSE
12 CIRCUMSTANCES, YOU KNOW, I THINK EVERYONE REALIZES THAT
13 ANESTHESIOLOGY WOULD INVOLVE PUTTING PATIENTS TO SLEEP FOR
14 SURGERY.
15 BUT MORE IMPORTANTLY WE'RE CONSTANTLY STUDYING, UNDER
16 THOSE CIRCUMSTANCES, THE EFFECTS OF ANESTHETIC DRUGS AND
17 OTHER DRUGS ON THINGS LIKE BREATHING, BLOOD PRESSURE, HEART
18 RATE, VARIOUS OTHER VITAL FUNCTIONS. BECAUSE WHILE THE
19 PATIENT IS ASLEEP WE'RE IN CHARGE OF MAKING SURE THEY'RE
20 SAFE AND ALL THE BODY FUNCTIONS ARE WORKING WELL.
21 Q. I TAKE IT THAT AS PART OF THAT PARTICULAR SPECIALTY
22 YOU'RE CONVERSANT WITH AND EXPERIENCED IN READING THESE
23 TYPES OF TESTS THAT ARE MADE IN THE COURSE OF SURGERIES AND
24 AFTER SURGERIES?
25 A. THAT'S CORRECT.
2533
1 Q. AND THEY PERTAIN -- IN RESPECT TO THE ADMINISTRATION OF
2 THE MEDICATIONS OR THE DRUGS THAT YOU MAY HAVE ADMINISTERED
3 TO ANESTHETIZE THESE PATIENTS?
4 A. YES. THERE WOULD BE A WHOLE VARIETY OF DIFFERENT
5 MEDICATIONS WE MIGHT BE CALLED UPON TO GIVE. SOME WOULD BE
6 ANESTHETICS, SOME WOULD BE PAINKILLERS. SOME WOULD BE DRUGS
7 MEANT TO SUPPORT BLOOD PRESSURE, CHANGE BLOOD PRESSURE,
8 HEART RATE. A WHOLE HOST OF OTHER DRUGS. PLUS WE'RE GIVING
9 ANESTHETICS IN THE SETTING OF PATIENTS WITH MEDICAL
10 PROBLEMS, SO WE HAVE TO ACCOUNT FOR THE DRUGS THAT THEY'RE
11 ON AND HOW THAT MIGHT AFFECT OUR ANESTHETICS AND THEIR
12 REACTION TO THE DRUGS.
13 Q. ARE ANY OF THOSE PATIENTS WHAT YOU WOULD CONSIDER TO BE
14 GERIATRIC PATIENTS?
15 A. YES.
16 Q. OKAY. HOW MANY OCCASIONS WOULD YOU SAY, OVER THAT 21
17 YEARS OF EXPERIENCE, YOU'VE PARTICIPATED IN SURGERIES AND IN
18 MONITORING THESE PATIENTS? DO YOU HAVE ANY IDEA?
19 A. THOUSANDS. I CAN'T GIVE YOU AN EXACT NUMBER.
20 Q. YOU ALSO INDICATED THAT YOU DEVELOPED AN EXPERTISE AND A
21 BOARD CERTIFICATION IN PAIN MANAGEMENT?
22 A. YES.
23 Q. AND THAT OCCURRED IN 1993?
24 A. YES, IT DID. THAT WAS THE FIRST YEAR IT WAS OFFERED.
25 Q. OKAY. THAT WAS THE FIRST YEAR IT WAS OFFERED AS A
2534
1 CERTIFICATION?
2 A. YES.
3 Q. AND IN RESPECT TO PAIN MANAGEMENT, MAYBE YOU COULD
4 INDICATE TO US WHAT DOES THAT ENTAIL?
5 A. WELL, THE SUBSPECIALTY OF PAIN MANAGEMENT WOULD DEAL
6 WITH THE SEVERAL DIFFERENT KINDS OF PAIN. THERE WOULD BE
7 THE ACUTE PAIN, WHICH WOULD BE PAIN THAT WOULD OCCUR LIKE
8 AFTER SURGERY. THERE WOULD BE NONMALIGNANT CHRONIC PAIN,
9 WHICH WOULD BE CHRONIC HEADACHES, CHRONIC BACK PAIN,
10 DIFFERENT TYPES OF PROBLEMS LIKE THAT. AND THEN THERE WOULD
11 BE PAIN RELATED TO MALIGNANCY.
12 Q. OKAY.
13 A. CANCER PAIN.
14 Q. AND YOU PRACTICED IN THAT AREA FOR HOW LONG?
15 A. 21 YEARS.
16 Q. SO THAT WAS PART OF THE GENERAL PRACTICE THAT YOU HAD AS
17 IT RELATED TO ANESTHESIOLOGY?
18 A. YES. IT WAS A COMBINATION OF OR, ANESTHESIA AND PAIN
19 MANAGEMENT IN A PAIN CLINIC SETTING.
20 Q. YOU INDICATED THAT YOU'RE PRESENTLY ON THE STAFF AT THE
21 UNIVERSITY OF UTAH HOSPITAL?
22 A. THAT'S CORRECT.
23 Q. AND DO YOU DO TEACHING?
24 A. I DO.
25 Q. AND WHAT AREAS DO YOU TEACH?
2535
1 A. AGAIN, PAIN MANAGEMENT WOULD BE THE MAJORITY OF WHAT I
2 TEACH. THEN OPERATING ROOM ANESTHESIA.
3 Q. OKAY. IN THE COURSE OF YOUR PAIN MANAGEMENT EXPERIENCE,
4 HAVE YOU HAD OCCASION TO TREAT PATIENTS WHO ARE CATEGORIZED
5 IN THE GERIATRIC AGE GROUP?
6 A. I HAVE.
7 Q. OKAY. YOU'VE ALSO, HAVE YOU NOT, TESTIFIED AS AN EXPERT
8 IN OTHER PROCEEDINGS?
9 A. I HAVE.
10 Q. YOU'VE BEEN ASKED PREVIOUS TO THIS TIME TO REVIEW THE
11 MEDICAL RECORDS PERTAINING TO FIVE PATIENTS THAT ARE THE
12 SUBJECT MATTER OF THIS PARTICULAR CASE, IS THAT CORRECT?
13 A. THAT'S CORRECT.
14 Q. COULD YOU TELL THE JURY JUST WHAT MEDICAL RECORDS, IF
15 ANY, YOU'VE REVIEWED IN CONNECTION WITH YOUR TESTIMONY IN
16 THIS PROCEEDING?
17 A. I'VE REVIEWED THE MEDICAL RECORDS FROM THE DAVIS
18 HOSPITAL, FROM THE GERO-PSYCHIATRIC UNIT. I'VE REVIEWED
19 MEDICAL RECORDS FROM THE, I GUESS YOU COULD SAY, NURSING
20 HOMES FROM WHERE THESE PATIENTS CAME. I'VE REVIEWED SOME
21 ADDITIONAL RECORDS, INTERVIEWS, THAT WERE OBTAINED BY
22 DETECTIVE MORRISON.
23 Q. HAVE YOU HAD OCCASION --
24 A. I'VE REVIEWED AUTOPSY REPORTS.
25 Q. HAVE YOU HAD OCCASION TO CONSULT ANY JOURNALS, IN
2536
1 RESPECT TO THE VARIOUS CATEGORIES OF YOUR SPECIALIZED
2 TRAINING, IN CONNECTION WITH THIS REVIEW?
3 A. THERE HAVE BEEN SOME SPECIFIC NUMBERS AND FACTS THAT
4 I'VE LOOKED UP IN REGARDS TO THIS CASE, BUT MUCH OF IT I'VE
5 BEEN ABLE TO RELY ON MY ACCUMULATED KNOWLEDGE. Ha!
6 Q. AND YOU PREVIOUSLY TESTIFIED, DID YOU NOT, IN THIS
7 MATTER IN CONNECTION WITH THE PRELIMINARY HEARING?
8 A. I DID.
9 Q. AS TO THE MEDICAL RECORDS THEMSELVES, HOW MANY TIMES
10 WOULD YOU SAY YOU'VE HAD THE OPPORTUNITY TO REVIEW THOSE?
11 A. IN THEIR ENTIRETY I WOULD SAY I'VE BEEN THROUGH THEM AT
12 LEAST THREE TIMES; AND THEN I'VE REFERRED TO MULTIPLE
13 PORTIONS OF THEM MANY OTHER TIMES.
14 Q. OKAY. I NOTE THAT YOU BROUGHT WITH YOU SOME DOCUMENTS
15 HERE TODAY. CAN YOU TELL US WHAT THOSE DOCUMENTS ARE?
16 A. THESE ARE COPIES OF THE MEDICAL RECORDS FROM THE DAVIS
17 HOSPITAL AND FROM THE NURSING HOMES. IN ADDITION, I HAVE
18 SOME OTHER SUMMARIES, NOTES AND SO ON.
19 Q. DID YOU, SIR, IN THE COURSE OF YOUR EVALUATION OF THESE
20 PARTICULAR RECORDS, MAKE NOTES YOURSELF?
21 A. TO SOME DEGREE. IT WAS MORE NOTATIONS, I WOULD SAY,
22 RATHER THAN NOTES.
23 Q. OKAY. DID YOU HAVE OCCASION TO IDENTIFY, IN THAT
24 PARTICULAR EXHIBIT, CERTAIN AREAS THAT YOU FELT WERE
25 RELEVANT TO YOUR TESTIMONY HERE IN COURT TODAY?
2537
1 A. YES, I DID.
2 Q. OKAY. I WANT TO FIRST TALK TO YOU A LITTLE BIT ABOUT
3 YOUR SPECIALTY IN PHARMACOLOGY. I ASSUME THERE'S VARIOUS
4 CATEGORIES OF MEDICATIONS AND DRUGS, WOULD THAT BE A FAIR
5 STATEMENT?
6 A. YES.
7 Q. CAN YOU TELL US, ARE THERE DRUGS THAT ARE CLASSIFIED,
8 ESSENTIALLY, AS CENTRAL NERVOUS SYSTEM DEPRESSANTS?
9 A. THAT WOULD BE A VERY BROAD CATEGORY OF MEDICATIONS. IT
10 COULD INCLUDE A NUMBER OF DIFFERENT CLASSES OF DRUGS.
11 CENTRAL NERVOUS SYSTEM DEPRESSION IS A PROPERTY SHARED BY
12 MANY DIFFERENT KINDS OF MEDICATIONS.
13 Q. SPECIFICALLY, IN YOUR REVIEW OF THE MEDICAL RECORDS IN
14 THIS PARTICULAR CASE, CAN YOU TELL US WHETHER OR NOT THERE
15 WERE IN EFFECT DRUGS THAT WOULD FIT INTO THAT CATEGORY?
16 A. YES. IN MOST CASES THE PATIENTS INVOLVED IN THESE CASES
17 WERE RECEIVING MEDICATIONS THAT WOULD BE CLASSIFIED AS
18 CENTRAL NERVOUS SYSTEM DEPRESSANTS.
19 Q. I'M GOING TO SHOW YOU WHAT HAS BEEN MARKED FOR THE
20 RECORD AT THIS TIME AS STATE'S EXHIBIT NUMBER 39.
21 MR. WILSON: FOR THE RECORD, YOUR HONOR, I REVIEWED
22 THAT EXHIBIT WITH MR. STIRBA. I DON'T THINK HE HAS ANY
23 OBJECTION TO USING THIS AS A DEMONSTRATIVE AID AT THIS TIME.
24 MR. STIRBA: THAT IS TRUE, YOUR HONOR.
25 THE COURT: OKAY. GO AHEAD.
2538
1 Q. (BY MR. WILSON) CALLING YOUR ATTENTION TO THE EXHIBIT,
2 CAN YOU TELL US, DOCTOR, DID YOU DESIGN THAT PARTICULAR
3 EXHIBIT?
4 A. I HELPED DO THAT. THIS BASICALLY, I THINK, SUMMARIZES
5 SOME OF THE PREVIOUS TESTIMONY THAT I'VE GIVEN AND PUTS IT
6 INTO A HOPEFULLY MORE EASILY UNDERSTANDABLE FORM.
7 Q. OKAY. CAN YOU TELL US WHAT THE EXHIBIT IS, OR PURPORTS
8 TO SHOW?
9 A. WHAT I HOPED TO DEMONSTRATE HERE WOULD BE THE IMMEDIATE
10 EFFECTS OF SOME OF THE MEDICATIONS, PARTICULARLY IN EXCESS.
11 AND THEN THE MORE LONG-TERM EFFECTS. IN OTHER WORDS, A
12 REFLECTION OF IF AN IMMEDIATE EFFECT PERSISTS, WHAT SORTS OF
13 THING MAY HAPPEN.
14 Q. OKAY. LET'S TALK ABOUT SOME SPECIFIC DRUGS AT THIS
15 TIME. ARE YOU FAMILIAR WITH A DRUG THAT IS CALLED ATIVAN?
16 A. YES.
17 Q. CAN YOU TELL US ABOUT ATIVAN? FIRST, DOES THAT HAVE ANY
18 OF THE CHARACTERISTICS OF A CENTRAL NERVOUS SYSTEM
19 DEPRESSANT?
20 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. I
21 THINK IT'S CUMULATIVE.
22 THE COURT: GO AHEAD. OVERRULED.
23 MR. WILSON: THANK YOU, YOUR HONOR.
24 Q. (BY MR. WILSON) CAN YOU TELL US A LITTLE ABOUT ATIVAN?
25 A. YES. ATIVAN IS PART OF A GROUP OF MEDICATIONS CALLED
2539
1 BENZODIAZEPINES. IT INCLUDES THINGS LIKE VALIUM, A NUMBER
2 OF OTHER MEDICATIONS. TYPICALLY CONSIDERED TO BE MEDICINES
3 FOR ANXIETY. FOR PEOPLE WHO HAVE NERVES, I GUESS YOU COULD
4 SAY.
5 Q. DOES IT HAVE ANY SEDATING EFFECTS?
6 A. YES, IT DOES.
7 Q. I WANT YOU TO SPECIFICALLY FOCUS ON THE SEDATING EFFECTS
8 AND WHAT THAT MEANS AS TO THE DRUG ATIVAN?
9 A. CERTAINLY ONE OF THE MOST PROMINENT EFFECTS WOULD BE, IN
10 SMALL DOSES, TO RELIEVE ANXIETY OR NERVOUSNESS. IN HIGHER
11 DOSES IT WOULD CAUSE SLEEPINESS. HIGHER DOSES WOULD CAUSE
12 COMA OR SLEEPY -- I MEAN, GO FROM SLEEPINESS TO
13 UNCONSCIOUSNESS.
14 SOME OF THE OTHER THINGS I MENTIONED WILL FIT WITH THAT
15 IN MY IMMEDIATE EFFECT CATEGORY THERE. PATIENTS BECOME VERY
16 SLEEPY. THEIR ABILITY TO COUGH, TO SWALLOW PROPERLY, BEGINS
17 TO BECOME LOST. GASTRIC SECRETIONS, STOMACH CONTENTS, JUST
18 OTHER SECRETIONS IN THE MOUTH MAY GET PULLED DOWN INTO THE
19 LUNGS. SO ASPIRATION IS THE TECHNICAL TERM WE USE FOR THAT.
20 THESE MEDICINES CAN, AND PARTICULARLY IN LARGER DOSES,
21 DECREASE BLOOD PRESSURE. AND WHEN A PATIENT IS REALLY
22 SLEEPY THEY OFTEN TIMES JUST DON'T EAT OR DRINK MUCH. AS A
23 RESULT SOME OF THE LONG-TERM EFFECTS BEGIN TO OCCUR.
24 SO, STARTING WITH MY LAST STATEMENT ABOUT PATIENTS NOT
25 EATING OR DRINKING MUCH, EVENTUALLY THEY CAN BECOME
2540
1 DEHYDRATED, BECOME MALNOURISHED. THIS RESULTS IN EVEN A
2 FURTHER INCREASE IN THEIR SENSITIVITY TO THE DRUG. THE SAME
3 DOSE OF DRUG IS GOING TO EVEN CAUSE A GREATER EFFECT IN A
4 DEHYDRATED PATIENT.
5 THE COURT: EXCUSE ME. I THINK WE NEED TO PROCEED
6 BY QUESTION AND ANSWER.
7 Q. (BY MR. WILSON) YOU'VE INDICATED THE IMMEDIATE EFFECTS
8 AND LONG-TERM EFFECTS ON THE CHART. ARE ALL OF THESE ITEMS
9 THAT YOU'VE INDICATED, ARE THEY ALL EFFECTS OF -- THAT YOU
10 COULD EXPERIENCE RELATIVE TO THE ADMINISTRATION OF THIS
11 PARTICULAR DRUG?
12 A. YES, THEY ARE.
13 Q. AND AGAIN, AS I UNDERSTAND IT, YOUR TESTIMONY, YOU TALK
14 ABOUT DOSAGES, IS THAT CORRECT?
15 A. THAT'S RIGHT.
16 Q. SO THE EFFECTS THAT YOU'VE LISTED THERE, ARE THEY
17 RELATED TO THE AMOUNT OR DOSAGES THAT WOULD BE ADMINISTERED
18 TO A PATIENT?
19 A. YES, THEY ARE. SMALL DOSES WOULD, AGAIN, RESULT IN
20 PERHAPS JUST A PRETTY SELECTIVE ANTI-ANXIETY EFFECT. THE
21 PATIENT MIGHT NOT BE VERY SLEEPY. THEY CAN BE PRETTY ALERT.
22 THEY MAY EVEN FUNCTION BETTER BECAUSE THEY'RE NOT ANXIOUS
23 ANYMORE.
24 Q. I'LL SHOW YOU WHAT HAS BEEN PREVIOUSLY MARKED AS STATE'S
25 EXHIBIT NUMBER 31. I DON'T KNOW WHETHER YOU'VE HAD AN
2541
1 OPPORTUNITY TO -- WELL, TAKE A LOOK AT IT, PLEASE.
2 A. I THINK I CAN READ IT WITHOUT MY GLASSES.
3 Q. HAVE YOU SEEN THAT EXHIBIT BEFORE, DOCTOR?
4 A. I BELIEVE I HAVE. AT LEAST IN SOME FORM, YES.
5 Q. JUST READ THROUGH IT REAL QUICKLY AND TELL ME IF YOU
6 AGREE WITH THE VARIOUS DOSAGES THAT ARE STATED ON THE
7 EXHIBIT.
8 A. WELL, THIS PARTICULAR EXHIBIT COMPARES THE NORMAL ADULT
9 STARTING DOSE WITH THE STARTING DOSE THAT MIGHT BE GIVEN TO
10 AN ELDERLY PATIENT. FOR A NORMAL ADULT STARTING DOSE, IT'S
11 ONE TO 10 MILLIGRAMS BY MOUTH PER DAY IN THREE DOSES. A
12 NORMAL STARTING DOSE IN AN ELDERLY PATIENT IS MUCH LESS THAN
13 THAT. SO ONE-HALF TO ONE MILLIGRAM BY MOUTH A DAY IN
14 DIVIDED DOSES. NO MORE THAN TWO MILLIGRAMS PER DAY. A HUGE
15 REDUCTION FROM THE NORMAL DOSE.
16 THE COURT: WHAT WAS THE QUESTION?
17 Q. (BY MR. WILSON) DO YOU AGREE WITH THE STATED DOSAGES
18 ON THAT PARTICULAR CHART?
19 A. YES, I DO.
20 Q. AND IN YOUR EXPERT OPINION, WOULD THOSE REPRESENT WHAT
21 YOU FEEL ARE THE CORRECT DOSAGES? AND I WOULD ASK YOU TO
22 LOOK AT ALL THE DRUGS AS FAR AS THAT GOES.
23 A. (PAUSE.) I WOULD TEND TO AGREE WITH EVERYTHING. I
24 WOULD TEND TO BE MORE CONSERVATIVE ON THE DURAGESIC DOSE. I
25 WOULD SAY THE 25-MICROGRAM PATCH WOULD BE SUITABLE FOR
2542
1 SOMEBODY WITH FAIRLY SEVERE PAIN, BUT FOR JUST KIND OF
2 EVERYDAY NORMAL SORT OF USE THAT'S STILL A PRETTY HEFTY
3 DOSE.
4 Q. OKAY. LET'S TALK A LITTLE BIT ABOUT SOME OF THE OTHER
5 SUBSTANCES. IF WE CAN, IF COUNSEL WILL ALLOW ME TO LEAD YOU
6 A LITTLE BIT IN THE INTEREST OF TIME. TRAZODONE, DOES IT
7 HAVE ANY CENTRAL NERVOUS SYSTEM DEPRESSANT EFFECT?
8 A. YES, IT DOES.
9 Q. AND CAN YOU TELL US, RELATIVE TO THE EXHIBIT ON THE
10 BOARD ON THE CENTRAL NERVOUS SYSTEM DEPRESSANT, DO THOSE
11 REPRESENT THE EFFECTS, IMMEDIATE AND LONG-TERM EFFECTS, ONE
12 MIGHT EXPERIENCE WITH THE ADMINISTRATION OF TRAZODONE?
13 A. YES, THEY WOULD.
14 Q. OKAY. HALDOL, DOES THAT HAVE ANY CENTRAL NERVOUS SYSTEM
15 DEPRESSANT EFFECTS?
16 A. IT DOES.
17 Q. AN AGAIN, WOULD THE CHART THAT YOU HAVE ON THE BOARD
18 COMPORT WITH THE IMMEDIATE EFFECTS AND LONG-TERM EFFECTS OF
19 ONE RECEIVING DOSAGES OF HALDOL?
20 A. YES.
21 Q. IS HALDOL ADMINISTERED IN PILL FORM?
22 A. IT CAN BE.
23 Q. OKAY. WELL, LET ME BACK OFF THAT FOR A MINUTE. LET'S
24 GO THROUGH THE OTHERS. RISPERDAL, AGAIN, DOES THAT HAVE ANY
25 CENTRAL NERVOUS SYSTEM DEPRESSANT EFFECTS?
2543
1 A. IT HAS SOME, BUT PROBABLY NOT TO THE SAME DEGREE AS THE
2 MEDICATIONS WE'VE ALREADY SPOKEN ABOUT.
3 Q. ALL RIGHT. SO IT WOULD HAVE LESS EFFECT AS TO THE
4 IMMEDIATE EFFECTS AND LONG-TERM EFFECTS?
5 A. BY ITSELF IT WOULD, YES.
6 Q. OKAY. DEPAKENE, CAN YOU TELL US ABOUT DEPAKENE?
7 A. THAT'S A DRUG THAT WAS INTRODUCED AS AN ANTICONVULSANT,
8 A MEDICINE FOR EPILEPSY, BUT IT HAS BEEN USED IN PATIENTS
9 WITH MOOD DISTURBANCE. AND IT WOULD FIT IN THE CATEGORY OF
10 A CENTRAL NERVOUS SYSTEM DEPRESSANT, SO IT CAN CERTAINLY
11 CAUSE THE EFFECTS THAT I'VE LISTED THERE.
12 Q. OKAY. I WANT TO TALK A LITTLE BIT ABOUT WHAT IS
13 REFERRED TO AS A DURAGESIC PATCH. CAN YOU TELL US WHAT THAT
14 MEANS?
15 A. THE DURAGESIC PATCH IS -- DURAGESIC IS A BRAND NAME FOR
16 A DOSE FORM OF MEDICATION. A VERY POTENT NARCOTIC BY THE
17 NAME OF FENTANYL IS PLACED IN A PATCH FORM THAT WHEN ON THE
18 SKIN IS ABSORBED THROUGH THE SKIN INTO THE BLOOD STREAM AND
19 THAT'S HOW WE GET THE EFFECTS OF THE MEDICATION. SO IT'S A
20 NARCOTIC TYPE MEDICINE. IT CAN BE USED FOR, IN CERTAIN
21 CIRCUMSTANCES, FOR PAIN MANAGEMENT.
22 Q. I'M GOING TO PLACE ON THE BOARD, IF IT WILL STAY THERE,
23 CAN YOU TELL WHAT THAT IS, WHAT THAT EXHIBIT REPRESENTS?
24 A. THIS IS A PORTION, OR A BLOW-UP, I GUESS, OF SEVERAL
25 PORTIONS OF THE INFORMATION IN ONE OF THE REFERENCES WE
2544
1 COMMONLY USE ON MEDICATIONS CALLED THE PHYSICIANS DESK
2 REFERENCE. THIS IS ESSENTIALLY A -- THERE'S INFORMATION
3 THAT GOES ALONG WITH EACH MEDICATION CALLED THE PACKAGE
4 INSERT. IT INCLUDES INFORMATION AS TO THE CHEMICAL NATURE
5 OF THE DRUG, THE USES, THE SIDE EFFECTS, CAUTIONS. ALL
6 KINDS OF DIFFERENT THINGS. IT'S INCLUDED USUALLY IN TINY
7 LITTLE PRINT, AS SHOWN THERE.
8 BUT IN THAT IT'S REQUIRED BY THE F.D.A. THAT CERTAIN
9 IMPORTANT CAUTIONS BE INCLUDED JUST TO MAKE SURE THE
10 PRACTITIONER PRESCRIBING THE DRUGS IS AWARE OF PROBLEMS THAT
11 MIGHT OCCUR AND LIMITATIONS THAT MAY BE PLACED ON THAT DRUG.
12 Q. IT INDICATES P.D.R. 49 EDITION, 1995?
13 A. YES.
14 Q. WHAT DOES THAT MEAN?
15 A. THAT'S THE 1995 EDITION. THIS COMES OUT EVERY YEAR, SO
16 IT'S UPDATED EACH YEAR.
17 Q. OKAY. NOW, WE'VE BLOWN UP CERTAIN WARNINGS AND OTHER
18 CONTRAINDICATIONS AND GENERAL OBSERVATIONS THAT ARE MADE IN
19 THE CONTEXT OF THAT PARTICULAR REFERENCE ON THE SIDES. HAVE
20 YOU HAD OCCASION TO READ THOSE PARTICULAR WARNINGS AND
21 REFERENCES?
22 A. I HAVE.
23 Q. OKAY. WOULD YOUR TESTIMONY HERE TODAY AGREE WITH WHAT
24 IS CONTAINED IN THAT PARTICULAR DOCUMENT?
25 A. YES, IT WOULD.
2545
1 Q. OKAY. LET'S TALK A LITTLE BIT ABOUT THE DURAGESIC
2 WARNING. MAYBE YOU COULD READ THAT, PLEASE.
3 A. "DURAGESIC SHOULD BE PRESCRIBED ONLY BY PERSONS
4 KNOWLEDGEABLE IN THE CONTINUOUS ADMINISTRATION OF POTENT
5 OPIOIDS." THAT'S NARCOTIC TYPE PAIN MEDICINES. "IN THE
6 MANAGEMENT OF PATIENTS RECEIVING POTENT OPIOIDS FOR THE
7 TREATMENT OF PAIN AND IN THE DETECTION AND MANAGEMENT OF
8 HYPOVENTILATION INCLUDING THE USE OF OPIOID ANTAGONISTS."
9 Q. LET ME STOP YOU RIGHT THERE. WHAT IS HYPOVENTILATION?
10 A. THAT MEANS DECREASED BREATHING.
11 Q. OKAY.
12 THE COURT: ALSO, WHEN YOU READ, THE COURT REPORTER
13 HAS TO TAKE EVERYTHING DOWN. DOCTORS TEND TO READ FASTER
14 THAN THEY NORMALLY SPEAK, SO JUST GO SLOW.
15 THE WITNESS: THANK YOU. I WILL.
16 Q. (BY MR. WILSON) AS TO THE TERM THE USE OF OPIOID
17 ANTAGONISTS, WHAT DOES THAT MEAN?
18 A. NARCOTICS ACT IN CERTAIN SYSTEMS IN THE BODY. THERE ARE
19 OTHER DRUGS, ONE IN PARTICULAR CALLED NALOXONE OR NARCAN,
20 WHICH WILL COUNTERACT AS AN ANTIDOTE AGAINST THE EFFECTS OF
21 NARCOTICS.
22 Q. READ ON.
23 A. "THE CONCOMITANT USE OF OTHER CENTRAL NERVOUS SYSTEM
24 DEPRESSANTS, INCLUDING OTHER OPIOIDS, SEDATIVES OR
25 HYPNOTICS, GENERAL ANESTHETICS, PHENOTHIAZINES,
2546
1 TRANQUILIZERS, SKELETAL MUSCLE RELAXANTS, SEDATING
2 ANTIHISTAMINES, AND ALCOHOLIC BEVERAGES MAY PRODUCE ADDITIVE
3 DEPRESSANT EFFECTS."
4 Q. OKAY. LET ME STOP YOU THERE. WHAT DOES THAT MEAN,
5 DOCTOR?
6 A. WE TALKED EARLIER ABOUT GENERAL CENTRAL NERVOUS SYSTEM
7 DEPRESSANTS. IF ONE OF THOSE IS BEING USED AT THE SAME TIME
8 AS A SUBSTANCE SUCH AS FENTANYL IN THE DURAGESIC PATCH, THE
9 EFFECTS BECOME VERY UNPREDICTABLE. THE SIDE EFFECTS,
10 RESPIRATORY DEPRESSION, AND OTHER SORTS OF SIDE EFFECTS WITH
11 THE FENTANYL BECOME MUCH MORE EXAGGERATED.
12 Q. AND THEN THE LAST SENTENCE THERE.
13 A. "HYPOVENTILATION, HYPOTENSION AND PROFOUND SEDATION OR
14 COMA MAY OCCUR. WHEN SUCH COMBINED THERAPY IS CONTEMPLATED,
15 THE DOSE OF ONE OR BOTH AGENTS SHOULD BE REDUCED AT LEAST 50
16 PERCENT."
17 Q. SO WHAT DOES THAT MEAN?
18 A. THAT MEANS THAT IF FOR SOME REASON IT IS NECESSARY TO
19 USE A GENERAL CENTRAL NERVOUS SYSTEM DEPRESSANT AND FENTANYL
20 TOGETHER THAT WE HAVE TO BE VERY CAREFUL, FOR STARTERS.
21 THAT GENERALLY WE WOULD HAVE TO MAKE A DRAMATIC REDUCTION IN
22 THOSE TO MAKE IT A SAFE THERAPY.
23 Q. OKAY. THE GENERAL OBSERVATION THAT IS MADE THERE ABOUT
24 DURAGESIC DOSAGES, COULD YOU READ THAT PARTICULAR PORTION OF
25 THE DOCUMENT.
2547
1 A. "DURAGESIC DOSES GREATER THAN 25 MICROGRAMS PER HOUR,"
2 THAT'S THE SMALLEST SIZE, "ARE TOO HIGH FOR INITIATION OF
3 THERAPY IN NON OPIOID-TOLERANT PATIENTS."
4 Q. OKAY. DEFINE NON OPIOID-TOLERANT PATIENTS, PLEASE.
5 A. IF A PATIENT HAS BEEN RECEIVING A NARCOTIC OR OPIOID
6 MEDICINE FOR A LONG PERIOD OF TIME, THE BODY BUILDS UP SOME
7 RESISTANCE TO IT. THIS IS GENERALLY AFTER A PERIOD OF
8 MONTHS. WE REFER TO THAT RESISTANCE AS TOLERANCE. SO THAT
9 MEANS THAT THE PATIENT CAN STAND A HIGHER DOSE AND NOT
10 DEVELOP PROBLEMS WITH IT.
11 Q. OKAY. HAVE A SEAT. WE'VE TALKED ABOUT -- OH, EXCUSE
12 ME. I DID WANT TO PUT ON THE BOARD WHAT IS MARKED AS
13 STATE'S EXHIBIT 42. I'D ASK YOU TO YOU TELL US, SIR, WHAT
14 THAT REPRESENTS?
15 A. THIS, AGAIN, IS FROM THE PHYSICIANS' DESK REFERENCE IN
16 REGARDS TO THE DURAGESIC PATCH. THIS GIVES A COMPARISON, ON
17 ONE SIDE, OF THE DOSE OF ORAL MORPHINE AND HOW THAT COMPARES
18 TO THE STRENGTH OF THE DURAGESIC PATCH. IN OTHER WORDS, IF
19 I WERE SEEING A PATIENT WHO WAS ALREADY ON ORAL MORPHINE AND
20 I WAS CONTEMPLATING SWITCHING THEM TO A DURAGESIC PATCH, IT
21 WOULD GIVE ME AN IDEA OF WHAT SORT OF CONVERSION TO MAKE,
22 HOW TO SWITCH FROM ONE TO THE OTHER SAFELY.
23 Q. THIS COMPARES AN ORAL 24 HOUR MORPHINE MILLIGRAM PER DAY
24 DOSE, DOES IT NOT, TO THE DURAGESIC DOSE?
25 A. IT DOES.
2548
1 Q. IS THERE A FACTOR THAT YOU CAN -- WELL, IF AN INDIVIDUAL
2 IS ADMINISTERED A DOSAGE OF MORPHINE INTERMUSCULARLY, AS WE
3 HAVE IN THIS CASE, DOES THAT COMPORT TO THE SAME DOSAGE
4 ORALLY?
5 A. NO. THE INTERMUSCULAR DOSE WOULD BE ABOUT ONE-THIRD OF
6 THE ORAL DOSE. SO, IN OTHER WORDS, IF WE DIVIDE THOSE
7 NUMBERS BY THREE, THEN WE WOULD HAVE A PRETTY GOOD IDEA OF
8 WHAT THE INTERMUSCULAR DOSE WOULD BE.
9 Q. SO ASSUMING AN INDIVIDUAL HAD A DURAGESIC PATCH PLACED
10 ON THEM OF 25 MICROGRAMS, WHAT WOULD THAT EQUATE TO IN TERMS
11 OF AN INTERMUSCULAR INJECTION?
12 A. THIS IS IN TERMS OF MILLIGRAMS OF MORPHINE PER DAY. NOT
13 PER INJECTION, BUT PER DAY. IT WOULD BE SOMEWHERE BETWEEN
14 15 AND 40 -- AROUND 40, 45, MILLIGRAMS OF INJECTABLE
15 MORPHINE PER DAY. SO THAT'S A PRETTY SIZEABLE DOSE. THAT
16 WOULD BE THE SORT OF A DOSE THAT I WOULD EXPECT A PATIENT
17 WHO HAS HAD FAIRLY MAJOR SURGERY TO REQUIRE.
18 Q. OKAY. SO THIS IS A POWERFUL PAINKILLER?
19 A. IT IS. THIS IS A STRONG DOSE. THIS IS REALLY A DOSE
20 DESIGNED FOR PATIENTS WITH SEVERE PAIN.
21 Q. AGAIN, THIS IS A P.D.R. REFERENCE EDITION FOR 1995, IS
22 THAT CORRECT?
23 A. THAT'S CORRECT.
24 Q. ALL RIGHT. THE CONVERSION, AS RELATES TO THE 75
25 MICROGRAMS, SEEMS TO BE A LOT HIGHER, REPRESENTATIVE WISE,
2549
1 AS TO THE 25. WOULD THE SAME CONVERSION RATE HOLD TRUE ON
2 AN INTERMUSCULAR INJECTION?
3 A. YES. WE WOULD DIVIDE THE NUMBERS THERE FOR THE ORAL
4 DOSE BY THREE. IN OTHER WORDS, WE WOULD BE WORKING ON A
5 DOSING OF SOMEWHERE BETWEEN 75 AND SOMEWHAT OVER A HUNDRED
6 MILLIGRAMS OF MORPHINE PER DAY. SO IT'S A LARGE AMOUNT.
7 Q. I'D LIKE TO TALK A LITTLE BIT ABOUT MORPHINE ITSELF.
8 MORPHINE IS ALSO A CENTRAL NERVOUS SYSTEM DEPRESSANT, IS IT
9 NOT?
10 A. IT IS.
11 Q. I CALL YOUR ATTENTION TO WHAT IS IDENTIFIED AS STATE'S
12 EXHIBIT 40. CAN YOU TELL US A LITTLE BIT ABOUT THAT CHART,
13 HOW THAT CHART WAS PREPARED?
14 A. THIS CHART WAS PREPARED IN A SIMILAR WAY AS THE OTHER
15 ONE. MORPHINE HAS SOME DIFFERENT CHARACTERISTICS AND
16 DIFFERENT PARTS OF THE CHART SHOULD BE EMPHASIZED. AGAIN,
17 THE IMMEDIATE EFFECTS ARE LISTED ON THE ONE SIDE AND THEN,
18 WITH PERSISTENT ADMINISTRATION, THE EFFECTS ARE LISTED UNDER
19 THE LONG-TERM EFFECTS.
20 I'VE, AGAIN, LISTED PAIN RELIEF AS ONE OF THE EFFECTS.
21 OF COURSE, IT IS. BUT THEN I'VE ALSO LISTED WHAT WOULD BE
22 THE COMMON SIDE EFFECTS, THE COMMON PROBLEMS THAT WE WOULD
23 RUN INTO, HAVE TO WATCH OUT FOR IF WE WERE PRESCRIBING
24 MORPHINE TO A PATIENT.
25 Q. WHEN YOU SAY THE PERSISTENT -- I'M TRYING TO REMEMBER
2550
1 WHAT YOUR STATEMENT WAS. MAYBE THE PERSISTENT USE OR
2 DOSAGES OF MORPHINE AS TO THE LONG TERM EFFECTS? DID I
3 CHARACTERIZE THAT RIGHT?
4 A. I GUESS WHAT I MEANT TO BRING OUT ON THIS CHART, WHEN A
5 DRUG LIKE MORPHINE IS GIVEN WE SEE SOME THINGS QUITE EARLY
6 ON. AGAIN, WHAT I'VE LISTED AS IMMEDIATE EFFECTS. THOSE
7 EFFECTS MAY COME ON WITHIN A PERIOD OF MINUTES. IF IT'S AN
8 I.M. INJECTION IT WILL PROBABLY TAKE HALF AN HOUR TO AN HOUR
9 FOR SOME OF THOSE EFFECTS TO COME ON.
10 OVER THE PERIOD, THOUGH, OF THE NEXT HOURS, OR DAYS, IF
11 THE PATIENT CONTINUES TO RECEIVE THE MEDICATION, AND
12 PARTICULARLY IF THE PATIENT IS RECEIVING EXCESSIVE AMOUNTS
13 OF THE MEDICATION, THEN SOME OF THE THINGS LISTED ON THE
14 OTHER SIDE, THE LONG-TERM EFFECTS, BEGIN TO OCCUR.
15 Q. OKAY. I ASSUME YOU'VE USED MORPHINE IN YOUR PRACTICE?
16 A. YES.
17 Q. HAVE YOU USED IT ON MANY OCCASIONS OR --
18 A. MANY OCCASIONS. IT'S ONE OF THE MOST COMMON MEDICINES
19 WE USE.
20 Q. IN FACT, IT'S SORT OF THE STANDARD FOR PAIN MEDICATIONS,
21 IS IT NOT?
22 A. IT IS. IT'S THE STANDARD BY WHICH OTHER PAIN
23 MEDICATIONS ARE COMPARED TO TYPICALLY.
24 Q. MORPHINE HAS BEEN AROUND FOR A LONG TIME?
25 A. A LONG TIME.
2551
1 Q. AND IT'S CLASSIFIED AS AN OPIOID?
2 A. OPIOID. IT'S AN OPIUM DERIVATIVE.
3 Q. I MAY BE GETTING INTO THE GUERILLA FAMILY HERE IF I KEEP
4 THIS UP. IN TERMS OF THE ADMINISTRATION OF MORPHINE, CAN
5 YOU TELL US FOR WHAT PURPOSE IS MORPHINE USED?
6 A. THE PRIMARY EFFECTS OF MORPHINE -- IT'S MAIN USE IS FOR
7 THE PURPOSE OF PAIN MANAGEMENT.
8 Q. OKAY. IS THERE ANY OTHER USE IN THE MEDICAL FIELD THAT
9 MORPHINE IS USED FOR?
10 A. TO A MUCH LESSER DEGREE MORPHINE HAS BEEN USED IN
11 HELPING WITH SOME OF THE BLOOD PRESSURE CHANGES, SOME
12 DIFFERENT THINGS THAT HAPPEN WITH PATIENTS WHO HAVE HAD
13 HEART ATTACKS. OCCASIONALLY, IN AN I.C.U. SETTING, IT CAN
14 BE USED TO SEDATE PATIENTS. MAKE THEM MORE TOLERANT OF A
15 BREATHING TUBE IF THEY'RE ON A VENTILATOR. UNDER THOSE
16 CIRCUMSTANCES, THOUGH, WE DON'T HAVE TO WORRY ABOUT
17 DECREASED BREATHING BECAUSE THE VENTILATOR TAKES CARE OF THE
18 BREATHING. THOSE ARE SOME OF THE MAIN THINGS.
19 Q. IN TERMS OF ITS PRIMARY USE, THOUGH, IT'S PAIN
20 MANAGEMENT?
21 A. YES.
22 Q. CAN YOU TELL US, IS IT RELATED TO SEVERITIES OF PAIN?
23 WHAT TYPES OF PAIN, I GUESS, IS THE QUESTION?
24 A. WE USUALLY DON'T THINK OF MORPHINE TO BE PRESCRIBED FOR
25 MILD PAIN. WE MIGHT BE ABLE TO USE A MEDICINE LIKE TYLENOL
2552
1 OR ACETAMINOPHEN OR IBUPROFEN OR SOMETHING LIKE THAT. WE
2 USUALLY THINK OF IT FOR MODERATE TO SEVERE PAIN.
3 Q. OKAY. I REALIZE THIS MAY BE A DIFFICULT QUESTION TO
4 ANSWER, BUT WHAT DO YOU MEAN BY MODERATE PAIN? CAN YOU
5 CLASSIFY THAT FOR US?
6 A. WELL, IT'S LESS THAN SEVERE. I GUESS WE GET INTO
7 DIFFERENT CLINICAL SETTINGS WHERE WE THINK OF INJURIES OR
8 SURGERIES AS RESULTING IN DIFFERENT DEGREES OF PAIN. IF
9 SOMEONE HAS A MILD INJURY, A CUT ON THE HAND, A MILD SPRAIN,
10 THEY'RE PROBABLY -- THEY MAY NOT TAKE ANY MEDICINE. THEY
11 MAY BE ABLE TO TAKE SOME IBUPROFEN OR SOMETHING AND IT WORKS
12 PRETTY WELL.
13 IF THAT BECOMES MORE PAINFUL THAN SOMETHING LIKE
14 IBUPROFEN MAY STILL WORK BUT NOT WELL ENOUGH. THEN THEY MAY
15 NEED SOMETHING A BIT STRONGER. SOME OF THE ORAL PAIN
16 MEDICATIONS, ANYTHING FROM DARVON TO PERCOCET, VICODIN, A
17 NUMBER OF THOSE DIFFERENT ORAL PAIN MEDICATIONS MIGHT BE
18 USED UNDER THOSE CIRCUMSTANCES.
19 Q. WHAT ABOUT CHRONIC PAIN, DOCTOR?
20 A. IN CHRONIC PAIN, LIKEWISE, SOME OF THESE MEDICINES, THE
21 OPIOID MEDICINES, CAN BE AN IMPORTANT PART OF THERAPY. MORE
22 SEVERE PAIN, I GUESS, WE THINK OF IN TERMS OF A MAJOR
23 SURGERY. A PATIENT HAS HAD A LARGE ABDOMINAL INCISION OR A
24 TOTAL KNEE PLACEMENT. WE WOULD CONSIDER THOSE THINGS TO BE
25 SEVERE PAIN. I THINK SOME OF THE PAIN OF CANCER CERTAINLY
2553
1 CAN FIT INTO THAT CATEGORY. NOT ALWAYS, BUT IT CERTAINLY
2 CAN.
3 Q. WHAT DOES THE TERM HALF LIFE MEAN TO YOU?
4 A. HALF LIFE IS ONE OF THE TERMS WE USE IN AN AREA CALLED
5 PHARMACOKINETICS. THAT'S A KIND OF COMPLICATED NAME TRYING
6 TO DESCRIBE WHAT HAPPENS WHEN WE TAKE A MEDICATION INTO OUR
7 BODY. HOW DOES THE BODY HANDLE THAT MEDICATION, HOW DOES
8 THE BODY FINALLY GET RID OF IT, HOW LONG DOES IT TAKE. THE
9 HALF LIFE IS ONE OF THE IDENTIFIABLE FACTORS THAT WE CAN
10 COME UP WITH. IF WE TAKE A MEDICATION IT WILL TAKE A
11 CERTAIN AMOUNT OF TIME FOR HALF THAT MEDICATION TO BE
12 ELIMINATED FROM OUR BODY. THAT NUMBER, GENERALLY IN TERMS
13 OF HOURS, IS CALLED THE HALF LIFE; ELIMINATION HALF LIFE.
14 Q. SO IS THERE ALSO -- IN RESPECT TO THE TERM DURATION,
15 DOES THAT HAVE ANY SIGNIFICANCE?
16 A. IT DOES. THE DRUGS THAT STAY IN THE BODY LONGER, THE
17 DRUGS THAT WOULD HAVE LONGER HALF LIVES, ARE GOING TO HAVE
18 LONGER EFFECT OR A LONGER DURATION OF EFFECT.
19 Q. OKAY. THE FACT OF A PERSON'S AGE AND WEIGHT, IS THAT
20 TAKEN INTO CONSIDERATION IN DETERMINING HALF LIVES OR
21 DURATION OF DRUGS?
22 A. AGE IN PARTICULAR IS QUITE IMPORTANT. WEIGHT PROBABLY
23 NOT SO MUCH SO, BUT CERTAINLY THERE IS SOME ROUGH
24 CORRELATION WITH BODY SIZE. IF SOMEBODY IS REALLY EXTREME
25 IN BODY SIZE THAT MAY MAKE THEM MORE OR LESS SENSITIVE TO A
2554
1 DRUG. BUT AS FAR AS HOW IT EFFECTS THE ELIMINATION OF THE
2 DRUG, IT'S PROBABLY NOT AS BIG A FACTOR.
3 BUT AGE IS VERY IMPORTANT. TYPICALLY ELDERLY PATIENTS
4 ARE MUCH SLOWER TO ELIMINATE DRUGS FROM THE BODY THAN
5 PATIENTS OF YOUNGER AGES.
6 THE COURT: MR. WILSON, YOU'RE ABOUT TO GET INTO
7 ANOTHER AREA?
8 MR. WILSON: I AM.
9 THE COURT: LADIES AND GENTLEMEN, LET'S TAKE -- I
10 THINK WE'LL TAKE OUR LAST BREAK FOR THE DAY AND THEN COME
11 BACK ABOUT FIVE MINUTES TO THREE. THEN WE'LL GO UNTIL 4:30
12 AS I EXPLAINED.
13 DURING THAT TIME REMEMBER THAT IT IS YOUR DUTY NOT TO
14 CONVERSE AMONG YOURSELVES OR WITH ANYONE ELSE ABOUT THIS
15 CASE. DO NOT ALLOW YOURSELVES TO BE ADDRESSED BY ANY PERSON
16 REGARDING THE SUBJECT OF THIS TRIAL. AGAIN, DO NOT FORM OR
17 EXPRESS AN OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO
18 YOU. SO, PLEASE COME BACK AT FIVE MINUTES TO THREE.
19 (JURY OUT OF THE COURTROOM.)
20 THE COURT: THE RECORD WILL REFLECT THAT JURY HAS
21 LEFT THE COURTROOM. HOW MUCH TIME DO YOU THINK -- OBVIOUSLY
22 WE WON'T GET DONE WITH HIM TODAY?
23 MR. WILSON: I THINK I WILL.
24 THE COURT: SO WE MIGHT BE DONE BY 4:30 ON DIRECT?
25 MR. WILSON: THAT'S CORRECT.
2555
1 THE COURT: LET'S COME BACK AT FIVE MINUTES TO
2 THREE, THEN WE'LL GO UNTIL 4:30.
3 (AFTERNOON RECESS.)
4 THE COURT: THE RECORD WILL REFLECT THAT COUNSEL
5 AND THE DEFENDANT AND THE JURY ARE PRESENT. MR. WILSON, YOU
6 MAY GO AHEAD.
7 MR. WILSON: THANK YOU, YOUR HONOR.
8 Q. (BY MR. WILSON) DR. HARE, I'D LIKE TO TALK A LITTLE
9 BIT ABOUT THE PROCESS INVOLVED IN ADMINISTERING MEDICATIONS
10 TO A PATIENT, PARTICULARLY CENTRAL NERVOUS SYSTEM DEPRESSANT
11 MEDICATIONS. CAN YOU TELL US, IS THERE A PROCESS OR
12 PROCEDURE THAT YOU FOLLOW AS A PHYSICIAN IN EVALUATING A
13 PARTICULAR PATIENT'S NEEDS?
14 A. WELL, OF COURSE THE FIRST STEP BEFORE A MEDICATION IS
15 ADMINISTERED IS IN ONE WAY OR ANOTHER COMING TO THE
16 CONCLUSION THAT THE PATIENT HAS THE RIGHT DIAGNOSIS TO
17 RECEIVE THAT MEDICATION.
18 INFORMATION REGARDING THE DIAGNOSIS CAN BE OBTAINED IN
19 LOTS OF DIFFERENT WAYS. THE PATIENT HISTORY. IF THE
20 PATIENT'S UNABLE TO GIVE A HISTORY, HISTORY FROM FAMILY
21 MEMBERS, HISTORY FROM PREVIOUS TREATING DOCTORS. OF COURSE
22 PHYSICAL EXAMINATION, YOUR OWN PERSONAL OBSERVATIONS OF THE
23 PATIENT. THE RESULTS OF DIAGNOSTIC TESTINGS. ALL DIFFERENT
24 SORTS OF THINGS CAN BE USED AND TAKEN INTO ACCOUNT TO COME
25 TO THE CONCLUSION THAT A PATIENT NEEDS A PARTICULAR
2556
1 MEDICATION.
2 Q. OKAY. SO THERE'S A NUMBER OF RECORDS THAT YOU MIGHT
3 REVIEW OR INFORMATION THAT YOU MIGHT RECEIVE IN EVALUATING
4 WHETHER OR NOT CERTAIN MEDICATIONS ARE INDICATED?
5 A. YES.
6 Q. THE PROCESS THAT YOU GO THROUGH IN DOING THAT, AND I
7 WANT YOU TO RELATE IT SPECIFICALLY TO PAIN MEDICATIONS, IF
8 YOU WILL, IS THERE ANYTHING DIFFERENT ABOUT THAT PROCESS AS
9 YOU LOOK AT WHETHER OR NOT TO ADMINISTER A PAIN MEDICATION?
10 A. WELL, AGAIN, FIRST YOU WOULD WANT TO COME TO THE
11 CONCLUSION, IN SOME WAY OR ANOTHER, THAT THE PATIENT IS
12 HAVING PAIN. IN SOME CASES, LIKE WITH SOME OF THE PATIENTS
13 WHO HAVE HAD SURGERY, IT'S VERY EASY TO SEE WHY THEY'RE
14 HAVING PAIN AND THAT THEY NEED TREATMENT. WITH MANY CANCER
15 PATIENTS IT'S VERY EASY TO UNDERSTAND HOW THE PATHOLOGY OF
16 THE CANCER AND THEIR PAIN CORRESPOND VERY WELL.
17 ALSO, IN SOME OF THE NON-CANCER CHRONIC PAIN PATIENTS
18 WE SEE, SOMETIMES IT'S A LITTLE MORE DIFFICULT TO PUT IT ALL
19 TOGETHER, BUT VERY OFTEN IT'S EASY TO UNDERSTAND AT LEAST
20 WHY THEY'RE HAVING SOME OF THE COMPLAINTS THAT THEY HAVE.
21 Q. NOW, A CENTRAL NERVOUS SYSTEM DEPRESSANT, IS THERE
22 DIFFERENT TYPES OF PAIN WITH THAT?
23 A. THERE ARE. THERE'S LOTS OF DIFFERENT KINDS. AGAIN,
24 DEPENDING ON THE DIAGNOSIS, ONE TYPE OF MEDICATION MIGHT BE
25 RECOMMENDED OVER ANOTHER. IN OTHER WORDS, NARCOTIC
2557
1 MEDICINES ARE NOT NECESSARILY THE MEDICINE OF CHOICE FOR A
2 LOT OF DIFFERENT TYPES OF PAIN.
3 Q. OKAY. AS TO ACTUAL PHYSICAL PAIN, WHERE MAYBE AN
4 INDIVIDUAL BREAKS A LEG OR HAS SOME OPERATION, I ASSUME
5 THERE IS -- WELL, MAYBE I DON'T. STRIKE THAT.
6 LET ME JUST ASK YOU, IN CONNECTION WITH THAT PROCESS,
7 ONCE YOU HAVE REVIEWED THE RECORDS, OR WHATEVER INFORMATION
8 THAT YOU HAVE DETERMINED IS AVAILABLE TO YOU, DO YOU ASSESS
9 THE NATURE OF THE PAIN?
10 A. YES. YOU TRY TO UNDERSTAND WHY THE PATIENT IS HAVING
11 THE PAIN AND HOPEFULLY THAT UNDERSTANDING WILL LEAD TO MORE
12 SPECIFIC TREATMENT.
13 Q. OKAY. IN TERMS OF -- WHAT IS THE ULTIMATE GOAL THAT
14 YOU'RE TRYING TO ARRIVE AT IN TERMS OF PAIN MANAGEMENT?
15 A. GENERALLY IT'S VERY DIFFICULT TO ELIMINATE PAIN
16 ALTOGETHER. THE GOAL IS TO GET THE PAIN DOWN TO A TOLERABLE
17 LEVEL. THAT'S REALLY, I THINK, THE REALISTIC GOAL THAT WE
18 SHOOT FOR. SOMETIMES WE ARE ABLE TO GET RID OF ALL THE
19 PAIN, BUT THAT'S NOT NECESSARILY THE GOAL.
20 Q. WHAT DOES THE TERM THERAPEUTIC EFFECT MEAN?
21 A. WELL, THE THERAPEUTIC EFFECT WOULD BE THE DESIRED EFFECT
22 OF A MEDICATION. IN OTHER WORDS, WE MAKE A DIAGNOSIS, WE
23 GIVE A MEDICATION FOR THAT DIAGNOSIS AND HOPEFULLY THE
24 MEDICATION HELPS THAT PARTICULAR PROBLEM.
25 Q. SO IF A PERSON IS EXHIBITING SIGNS OR SYMPTOMS OF PAIN,
2558
1 THEN THE RELIEF OF THAT PAIN WOULD CONSTITUTE THE
2 THERAPEUTIC EFFECT?
3 A. YES.
4 Q. IN LOOKING AT THAT ASSESSMENT, DO YOU TAKE INTO
5 CONSIDERATION, IN MAKING THAT, OTHER MEDICATIONS THAT THIS
6 PATIENT MAY BE RECEIVING?
7 A. UMM, THE OTHER MEDICATIONS, OF COURSE, COULD AFFECT THE
8 FINDINGS. IF A PATIENT IS ALREADY ON PAIN MEDICATION, FOR
9 INSTANCE, AND THEY'RE COMPLAINING OF SOME PAIN, IT MIGHT
10 AFFECT MY PHYSICAL EXAMINATION; IT MIGHT AFFECT HOW WELL I
11 CAN RECOGNIZE WHAT THE UNDERLYING PROBLEM MIGHT BE. A
12 PATIENT COULD BE ON A SEDATING MEDICATION, SOMETHING THAT
13 AFFECTS THEIR ABILITY TO VERY WELL REPORT TO ME WHAT THEIR
14 PAIN IS LIKE, WHERE IT'S LOCATED, THE CHARACTERISTICS OF IT.
15 THAT MIGHT MAKE IT DIFFICULT FOR ME TO MAKE SENSE OUT OF IT
16 AND PROPERLY DIAGNOSE AND TREAT THEIR PROBLEM.
17 Q. OKAY. IF A PATIENT IS UNABLE TO REPORT TO YOU, EITHER
18 THEY'RE SEDATED OR MAYBE SUFFERING FROM SOME KIND OF MENTAL
19 DISABILITY, HOW DO YOU GO ABOUT EVALUATING THEIR PAIN?
20 A. THE ONE THING WOULD BE -- AGAIN IT DEPENDS ON THE
21 SETTING. IF THE PATIENT HAS AN ACUTE INJURY, LIKE AN
22 ELDERLY PATIENT IN A NURSING HOME FALLS AND BREAKS THEIR
23 HIP, I THINK IT'S PRETTY EASY TO UNDERSTAND THAT THEY WOULD
24 HAVE PAIN AND THAT THAT MIGHT NEED TREATMENT.
25 IF WE'RE TALKING MORE OF A LONG STANDING PAIN, WHERE
2559
1 THE PHYSICAL FINDINGS -- IN OTHER WORDS, WHAT WE CAN FIND ON
2 A PHYSICAL EXAMINATION ISN'T AS CLEAR, IT ISN'T LIKE A
3 BROKEN BONE. THE PATIENT SAYS THEY HAVE A HEADACHE OR BACK
4 PAIN OR SOMETHING LIKE THIS, THEN IT BECOMES A BIT MORE
5 DIFFICULT, PARTICULARLY IF THE PATIENT CAN'T TELL YOU THAT.
6 MAYBE THERE'S SOME INDICATION THAT THEY HAVE THAT PROBLEM.
7 THERE I WOULD PROBABLY MORE RELY ON THE PEOPLE CLOSEST TO
8 THAT PATIENT. THE FAMILY MEMBERS, THE NURSES WHO HAVE TAKEN
9 CARE OF THE PATIENT, AND TRY TO GET AN IDEA FROM THEM AS TO
10 WHAT THEY THINK THE PROBLEM IS. IF IT SEEMS PRETTY
11 CONSISTENTLY THAT A CERTAIN AREA OF THE BODY IS AFFECTED BY
12 PAIN AND THE PATIENT COMPLAINS UNDER CERTAIN CIRCUMSTANCES,
13 THEN THAT MAY WELL BE SOMETHING THAT NEEDS TO BE TREATED.
14 ON THE OTHER HAND, IF THE OBSERVATIONS ARE SUCH THAT
15 THERE REALLY DOESN'T SEEM TO BE A LOT OF RHYME OR REASON,
16 THE PATIENT COMPLAINS -- KIND OF INDICATES THEIR HEAD HURTS
17 FOR A LITTLE BIT AND THEN IT'S THEIR HAND AND THEN THE FOOT
18 AND IT BOUNCES ALL OVER, THEN THAT MAY BE SOMETHING THAT'S
19 MORE DIFFICULT TO IDENTIFY AND KNOW HOW TO TREAT.
20 Q. OKAY. IF YOU MAKE A DECISION TO ADMINISTER A PAIN
21 MEDICATION, WHAT IS THE PROCESS INVOLVED AFTER THAT?
22 A. UMM, YOU WOULD HAVE TO DECIDE HOW -- WHICH PAIN
23 MEDICATION FIRST OF ALL, AND THAT WOULD BE BASED ON THE
24 PERCEIVED SEVERITY OF PAIN. AGAIN, EITHER THE PATIENT'S
25 REPORTS OR AT LEAST SOME, I GUESS, GESTALT THAT YOU HAVE
2560
1 ABOUT THE PATIENT AND WHAT MAY BE CAUSING THEIR PAIN.
2 Q. WHAT DO YOU MEAN BY GESTALT?
3 A. WELL, YOU GET A SENSE OUT OF HOW MUCH DISTRESS THE
4 PATIENT IS HAVING. WHAT SORTS OF -- HOW SEVERE THE PAIN MAY
5 BE. IF IT APPEARS THAT IT'S A BIT QUESTIONABLE HOW MUCH
6 PAIN THEY'RE HAVING AND YOU WANT TO SEE HOW WELL THEY
7 RESPOND TO A MEDICINE, YOU PERHAPS MIGHT START WITH
8 SOMETHING MILD. ON THE OTHER HAND, IF IT'S A PATIENT WHO
9 CLEARLY HAS GOOD REASON TO HAVE A LOT OF PAIN, THEN YOU'LL
10 BE MORE AGGRESSIVE WITH THE MEDICINE. SO EVEN THE INITIAL
11 CHOICE OF MEDICINE, GETTING BACK TO WHAT WE TALKED ABOUT
12 WITH MILD, MODERATE AND SEVERE PAIN, THAT WOULD GIVE ME SOME
13 GUIDELINE AS TO WHICH MEDICATION TO CHOOSE.
14 Q. OKAY. ONCE YOU'VE ADMINISTERED A PAIN MEDICATION, DO
15 YOU MONITOR THAT PAIN MEDICATION?
16 A. YOU DO. YOU HAVE TO HAVE KNOWLEDGE OF THE PAIN MEDICINE
17 AND WHAT ITS SIDE EFFECTS MAY BE. SO WE'RE NOT ONLY LOOKING
18 FOR THE BENEFICIAL EFFECT, WE CERTAINLY WANT TO SEE RELIEF
19 OF PAIN, BUT WE ALSO HAVE TO BE CAUTIOUS THAT THAT MEDICINE
20 MAY CARRY SOME DOWN SIDES WITH IT. YOU KNOW, EVEN MEDICINES
21 LIKE IBUPROFEN CAN IRRITATE THE STOMACH. WE TALKED ABOUT
22 SOME OF THE OTHER PAIN MEDICATIONS THAT CAN CAUSE SEDATION,
23 RESPIRATORY DEPRESSION. SO WE'RE ALWAYS USING OUR
24 THERAPEUTIC EFFECT, OR LOOKING FOR THE THERAPEUTIC EFFECT,
25 BUT TEMPERING THAT KNOWING THAT WE MAY GET SIDE EFFECTS WE
2561
1 DON'T WANT.
2 Q. WHAT DOES THE TERM TITRATION MEAN?
3 A. TITRATION MEANS THAT -- WELL, ESSENTIALLY, THAT YOU
4 ALTER THE DOSE TO TRY TO BEST MEET THE PATIENT'S NEEDS. IN
5 OTHER WORDS, YOU MAY MAKE YOUR BEST GUESS AS TO WHAT THE
6 STARTING DOSE OF MEDICATION WOULD BE. IF THAT DOESN'T SEEM
7 TO BE QUITE ENOUGH THEN YOU ADD SLOWLY TO THAT. YOU TRY TO
8 WORK IT UP TO THE POINT WHERE IT'S EFFECTIVE. OR IF THE
9 INITIAL DOSE SEEMS TO BE A BIT HIGH, TOO MANY SIDE EFFECTS,
10 THE PATIENT IS GETTING RELIEF BUT TOO MANY SIDE EFFECTS, YOU
11 BACK DOWN A BIT, BUT NOT TOO MUCH.
12 Q. DOES THE MEDICATION ADMINISTERED -- IS THERE A DIFFERENT
13 PROCESS, IN TERMS OF MONITORING, THAT YOU WOULD GO THROUGH
14 IN TERMS OF CERTAIN TYPES OF MEDICATIONS?
15 A. CERTAINLY. THE SIDE EFFECTS OF THE DIFFERENT TYPES OF
16 PAIN MEDICINE ARE REALLY PRETTY WELL DOCUMENTED. THOSE
17 WOULD BE THE MAIN THINGS YOU WOULD CONCENTRATE ON. A
18 MEDICINE LIKE IBUPROFEN, WE'D BE INTERESTED IN MAKING SURE
19 THE KIDNEYS ARE WORKING AND THE STOMACH DOESN'T GET
20 IRRITATED. A MEDICINE LIKE MORPHINE, WE'RE MORE INTERESTED
21 IN SEDATION, RESPIRATORY DEPRESSION, NAUSEA, CONSTIPATION.
22 THOSE ARE MORE THE SIDE EFFECTS THAT WE'RE WORRIED ABOUT.
23 Q. OKAY. IF YOU WILL, I WOULD LIKE TO GO THROUGH YOUR
24 REVIEW OF THE PARTICULAR PATIENTS THAT ARE PART OF THE
25 SUBJECT MATTER OF THIS CASE. I'M GOING TO PLACE ON THE
2562
1 BOARD WHAT HAS BEEN PREVIOUSLY MARKED AS STATE'S EXHIBIT 34.
2 I'LL ASK YOU TO TAKE A LOOK AT THAT, PLEASE.
3 A. (WITNESS COMPLIED.)
4 Q. CAN YOU TELL US, HAVE YOU HAD OCCASION TO REVIEW THAT
5 EXHIBIT PRIOR TO YOUR TESTIMONY HERE RIGHT NOW?
6 A. I HAVE.
7 Q. OKAY. AND THIS PURPORTS TO BE THE EXHIBIT PERTAINING TO
8 ELLEN ANDERSON. IN LOOKING AT THAT CHART, DOES THE CHART
9 BEAR ANY CORRELATION TO THE MEDICATIONS THAT YOU REVIEWED
10 THAT WERE ADMINISTERED TO HER IN CONNECTION WITH THE MEDICAL
11 RECORDS YOU REVIEWED?
12 A. YES, IT DOES.
13 Q. OKAY. NOW, ON THE SIDE OF THAT CHART THERE'S A DRUG
14 NAME IN PILL FORM AND THEN THERE'S ALSO A DRUG NAME IN THE
15 RED BOX. I'D JUST CALL YOUR ATTENTION TO ELLEN ANDERSON'S
16 RECORDS RIGHT NOW. DID YOU HAVE OCCASION TO THOROUGHLY
17 REVIEW HER RECORDS?
18 A. YES, I DID.
19 Q. CAN YOU TELL US, DID YOU REVIEW ANY RECORDS PERTAINING
20 TO HER ADMISSION AT THE GERO-PSYCH UNIT?
21 A. YES.
22 Q. DID YOU REVIEW ANY RECORDS PERTAINING TO HER EARLIER
23 RECORDS, AS FAR AS HER NURSING HOME RECORDS OR PRIOR CARE
24 RECORDS?
25 A. YES, I DID.
2563
1 Q. OKAY. AT THE TIME OF ADMISSION, DOCTOR, CAN YOU TELL US
2 WHETHER OR NOT THERE WAS ANY INDICATION IN THE RECORDS
3 THEMSELVES WHICH TO YOU INDICATED THAT THE PATIENT WAS
4 EXPERIENCING ANY PAIN?
5 A. THERE SEEMED, BY THE REPORTS IN THE RECORDS, THAT THE
6 PATIENT'S PAIN COMPLAINTS, IF ANY, WERE MINIMAL. IT SEEMED
7 THAT THE RECORDS REFLECTED MORE THAN ANXIETY WAS HER MAJOR
8 ISSUE. ANY TIME, THOUGH, THAT SHE COMPLAINED OF SOMETHING
9 THAT SEEMED TO BE A PAIN COMPLAINT --
10 MR. STIRBA: I'M GOING TO OBJECT. THE RECORDS
11 SPEAK FOR THEMSELVES. HE'S JUST CHARACTERIZING WHAT HE'S
12 READING. IF HE WANTS TO READ IT, FINE, OR ASK A MORE
13 SPECIFIC QUESTION.
14 THE COURT: LET'S PROCEED BY ANOTHER QUESTION.
15 Q. (BY MR. WILSON) IN RESPECT TO THE PHYSICAL CONDITION,
16 AS YOU REFERENCED FROM THE RECORDS, CAN YOU TELL US WHAT HER
17 PHYSICAL CONDITION WAS?
18 A. SHE HAD SOME MEDICAL PROBLEMS, BUT NONE WERE LIFE
19 THREATENING. SHE WAS MEDICALLY STABLE AT THE TIME SHE
20 ENTERED THE GERO-PSYCH UNIT.
21 Q. OKAY. NOW, WHEN WAS SHE ADMITTED TO THE UNIT?
22 A. ON DECEMBER 29TH, 1995.
23 Q. DO YOU KNOW WHETHER THERE WAS ACTUALLY ANY PHYSICAL
24 EVALUATION CONDUCTED ON THIS PATIENT?
25 A. ACCORDING TO THE RECORDS, IT APPEARS THAT THE PHYSICAL
2564
1 EXAM -- NOT THE PHYSICAL EXAM, BUT THE ADMISSION PAPERWORK
2 WAS DONE AFTER THE PATIENT'S DEATH.
3 Q. CAN YOU TELL US, DOCTOR, IS THERE ANYTHING IN PARTICULAR
4 IN THE MEDICAL RECORDS WHICH REFERENCES THIS PATIENT
5 COMPLAINING OF PAIN?
6 A. NOT ANYTHING THAT INDICATED THAT SHE SPECIFICALLY HAD
7 PAIN COMPLAINTS. SHE DID HAVE A HISTORY OF OSTEOPOROSIS AND
8 SHE'D HAD SOME PROBLEMS RELATED TO THAT. BUT IN THE PERIOD
9 PRIOR TO HER ADMISSION TO THE HOSPITAL THERE DIDN'T SEEM TO
10 BE ANY -- YOU KNOW, ANY CLEAR ONGOING PAIN COMPLAINTS.
11 Q. OKAY. DID YOU SEE, IN YOUR REVIEW OF THE RECORDS, AND
12 PARTICULARLY THE NURSE'S NOTES ON THAT PARTICULAR DATE,
13 AFTER ADMISSION, THAT WOULD IN YOUR MIND INDICATE ANY SIGNS
14 OR SYMPTOMS OF PAIN?
15 A. NONE THAT I SAW. See Nurse's Notes>>
16 Q. IN RESPECT TO THE ADMINISTRATION OF MORPHINE, CAN YOU
17 TELL US WHETHER OR NOT THERE WAS ANY MORPHINE ORDERED FOR
18 THIS PATIENT?
19 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. THIS
20 IS CUMULATIVE.
21 THE COURT: ASK THE QUESTION AGAIN.
22 Q. (BY MR. WILSON) THE QUESTION WAS, WAS THERE ANY
23 MORPHINE THAT WAS ORDERED IN RESPECT TO BE ADMINISTERED TO
24 THIS PATIENT?
25 MR. STIRBA: AND I'LL OBJECT. DR. FEHLAUER'S
2565
1 TESTIMONY IS CUMULATIVE AND THIS IS REDUNDANT.
2 THE COURT: IT'S OVERRULED RIGHT NOW, BUT LET'S NOT
3 REPEAT WHAT THE LAST WITNESS SAID.
4 Q. (BY MR. WILSON) CALLING YOUR ATTENTION TO THE EXHIBIT
5 ON THE BOARD, DOES THE EXHIBIT SHOW TWO INJECTIONS OF
6 MORPHINE THAT WERE ADMINISTERED TO THIS PATIENT?
7 A. YES.
8 Q. CAN YOU TELL US WHEN THE FIRST INJECTION WAS
9 ADMINISTERED?
10 A. THE FIRST WAS INJECTED AT ABOUT 7:30 IN THE EVENING.
11 Q. OKAY. IN YOUR OPINION, WAS THERE ANY MEDICAL REASON TO
12 ADMINISTER THE DRUG MORPHINE?
13 A. NONE THAT I COULD FIND IN THE RECORDS.
14 Q. OKAY. WHAT AMOUNT WAS ADMINISTERED ON THE FIRST
15 INJECTION?
16 A. TEN MILLIGRAMS INTERMUSCULARLY.
17 Q. DO YOU HAVE AN OPINION AS TO WHETHER THAT WAS AN
18 APPROPRIATE DOSAGE FOR THIS PARTICULAR PATIENT?
19 A. I GUESS, UNDER CIRCUMSTANCES WHERE MORPHINE MIGHT BE
20 INDICATED, WHICH IN THIS CASE IT DIDN'T SEEM TO BE, A MUCH
21 SMALLER DOSE WOULD HAVE BEEN A REASONABLE STARTING DOSE.
22 PERHAPS TWO MILLIGRAMS, THREE MILLIGRAMS. A FRACTION OF THE
23 DOSE THAT SHE RECEIVED.
24 Q. OKAY. IN THE NURSE'S NOTES AND FROM THE RECORDS, DID
25 YOU MAKE ANY NOTATIONS OR OBSERVATIONS RELATIVE TO ANY SIGNS
2566
1 OR EFFECTS OF TOXICITY OF THE DRUG?
2 A. UMM, YES. WELL, THE ONE DOWNSIDE IS THAT THE PATIENT
3 RECEIVED THE MEDICATION AT 7:30 IN THE EVENING AND I --
4 MR. STIRBA: I'M GOING TO OBJECT. THE QUESTION WAS
5 TOXICITY SIGNS AND SYMPTOMS FROM THE NURSING NOTES.
6 THE COURT: JUST ANSWER THE QUESTION.
7 Q. (BY MR. WILSON) OKAY. SPECIFICALLY, CAN YOU REFERENCE
8 WHAT NOTES, IF ANYTHING, INDICATED ANY PROBLEMS WITH
9 TOXICITY AS RELATES TO MORPHINE?
10 A. IT APPEARS THAT THE FIRST TIME THE PATIENT WAS CHECKED,
11 AFTER THE 7:30 IN THE EVENING DOSE, WAS AT ONE O'CLOCK IN
12 THE MORNING. AT THAT POINT IT'S DESCRIBED THAT THE
13 BREATHING WAS ERRATIC. A RATE OF ABOUT EIGHT TO 16 PER
14 MINUTE. THE BLOOD PRESSURE IS 70 OVER 50, WHICH IS
15 EXTREMELY LOW. THE PULSE RATE IS HIGH AT 120.
16 Q. OKAY.
17 A. SO THESE EFFECTS WOULD BE VERY CONSISTENT WITH THE
18 EFFECTS OF A LARGE DOSE OF MORPHINE.
19 Q. THAT WAS THE FIRST NOTE AFTER THE ADMINISTRATION OF THE
20 MORPHINE AT 7:30?
21 A. THAT'S CORRECT. See the reality ("patient calmer 2hrs after MS inj")>>
22 Q. IN RESPECT TO OTHER NOTES, CAN YOU TELL US WHETHER OR
23 NOT THERE WAS ANY FURTHER INJECTIONS PRESCRIBED FOR THIS
24 PATIENT AND GIVEN TO THE PATIENT?
25 A. THE PATIENT THEN RECEIVED A SECOND DOSE AT, I BELIEVE,
2567
1 3:30 IN THE MORNING. SO THIS WOULD HAVE BEEN TWO,
2 TWO-AND-A-HALF HOURS, LATER. ANOTHER 10 MILLIGRAMS WAS
3 ORDERED TO BE GIVEN BY DR. WEITZEL.
4 Q. OKAY. IN THE NURSE'S NOTES DO YOU SEE ANYTHING BETWEEN
5 1:30 AND 3:30 THAT WOULD BE INDICATIVE OF ANY SIGNS OF --
6 THAT THIS PATIENT WAS EXPERIENCING ANY KIND OF PAIN?
7 A. IT IS NOTED THAT THE PATIENT AWAKENED, SEEMED TO BE
8 THRASHING HER ARMS AND WAS MOANING, SCREAMING. THAT
9 WOULDN'T NECESSARILY BE AN INDICATION OF PAIN. IT APPEARS
10 THAT THE PATIENT WAS DISTRESSED OR CONFUSED, OR WHO KNOWS
11 WHAT, BUT CERTAINLY NOT A SPECIFIC INDICATION OF THE PATIENT
12 BEING IN PAIN.
13 Q. DID YOU SEE ANYTHING THERE THAT WOULD BE INDICATIVE OF
14 THE NEED OR NECESSITY TO ADMINISTER MORPHINE TO THAT
15 PATIENT?
16 A. I WOULD NOT.
17 Q. AGAIN, HOW MUCH WAS THAT PARTICULAR INJECTION?
18 A. THAT WAS ANOTHER 10 MILLIGRAMS.
19 Q. WERE THERE ANY VITAL SIGNS OF THE PATIENT TAKEN AT 3:30
20 IN THE MORNING?
21 A. NO.
22 Q. WHEN IS THE NEXT -- LET ME ASK YOU THIS. WHEN WAS THE
23 NEXT NOTE RELATED IN THE RECORD THAT WOULD BE INDICATIVE TO
24 YOU THAT THIS PATIENT MAY BE SUFFERING THE EFFECTS OF
25 TOXICITY OF THE MORPHINE?
2568
1 A. IT'S NOTED AT 6:30 THAT THE PATIENT SEEMS TO HAVE
2 BEEN -- APPEARED TO BE ASLEEP SINCE RECEIVING THE MORPHINE.
3 BUT THEN AT 7:30 IT'S NOTED THAT THE RESPIRATORY RATE IS 12.
4 Q. CAN YOU COMMENT ON THAT?
5 A. THAT'S KIND OF BORDER LINE LOW. THE PULSE RATE IS 60 Unbelievable.
6 AND THE NURSE WAS UNABLE TO GET A BLOOD PRESSURE. THE
7 PATIENT WASN'T RESPONSIVE TO VERBAL OR TACTILE TOUCH,
8 MEANING THAT THEY TRIED TO STIMULATE THE PATIENT AND THE
9 PATIENT WASN'T RESPONSIVE AT ALL. THE PATIENT WAS UNABLE TO
10 BLINK HER EYES. AT THAT POINT THEY FELT THAT THE PATIENT
11 PROBABLY HAD DIED. DIED? WITH A PULSE AND RESPIRATIONS?
12 Q. CAN YOU TELL US, DOCTOR, IN RESPECT TO -- WERE THERE ANY
13 TESTS ADMINISTERED TO THE PATIENT PRIOR TO THE 7:30 TIME
14 THAT THAT NOTE IS TAKEN?
15 A. THE PATIENT HAD HAD AN ELECTROCARDIOGRAM AND A CHEST
16 X-RAY ORDERED THE DAY BEFORE AT THE TIME OF ADMISSION.
17 THOSE WERE ORDERED TO BE DONE THE NEXT MORNING. SO AT 5:20
18 IN THE MORNING SHE DID HAVE AN E.K.G. IN OTHER WORDS, A
19 HEART TRACING. THAT SHOWED SOME MARKED ABNORMALITIES AT
20 THAT POINT.
21 Q. CAN YOU CLARIFY WHAT YOU MEAN BY MARKED ABNORMALITIES?
22 A. UMM, THE HEART WAS BEATING VERY FAST. I CAN SAY
23 PRECISELY WHAT IT WAS. THE TACHYCARDIA WITH MARKED SINUS
24 ARRHYTHMIA. THAT MEANS THE HEART WAS BEATING FAST BUT
25 IRREGULARLY. THERE WERE NONSPECIFIC T-WAVE ABNORMALITIES.
2569
1 THAT CAN MEAN THAT THERE IS -- THAT THE HEART ISN'T GETTING
2 ENOUGH OXYGEN.
3 Q. OKAY. ARE THOSE SIGNS CONSISTENT WITH MORPHINE
4 TOXICITY?
5 A. THEY CERTAINLY WOULD BE. MORE THE LONG-TERM EFFECTS.
6 IN OTHER WORDS, IF THE PATIENT ISN'T BREATHING WELL, THE
7 PATIENT'S BLOOD PRESSURE IS LOW, THE HEART ISN'T GETTING
8 ENOUGH OXYGEN, THE REACTION OF THE HEART IS TO SHOW THESE
9 ABNORMALITIES.
10 Q. SO WHEN IN FACT WAS THE PATIENT PRONOUNCED DEAD, DO YOU
11 KNOW?
12 A. I BELIEVE IT WASN'T UNTIL ABOUT 8:55 IN THE MORNING.
13 Q. WERE THERE ANY OTHER FURTHER NOTES, AFTER THE 7:30 NOTE,
14 THAT INDICATED TO YOU ANY SIGNS OF MORPHINE TOXICITY?
15 A. ONLY AT 8:55 THE PATIENT HAD NO BREATHING AND NO HEART
16 RATE.
17 Q. OKAY.
18 A. BUT AT 7:30 THEY THOUGHT THAT THE PATIENT HAD DIED, SO I
19 GUESS THAT'S EXPECTED.
20 Q. NOW, AS TO A CENTRAL NERVOUS SYSTEM DEPRESSANT, IS THAT
21 CONSISTENT -- OR MORPHINE, IS THAT CONSISTENT WITH THE
22 SHUTTING DOWN OF THE RESPIRATION SYSTEM?
23 A. IT IS. PARTICULARLY WITH THE MORPHINE-LIKE PAIN
24 MEDICINES, THE EFFECTS ARE MUCH MORE ON RESPIRATION THAN
25 JUST THE GENERAL CENTRAL NERVOUS SYSTEM DEPRESSANTS. SO ONE
2570
1 OF THE MOST PROMINENT PROBLEMS WITH A DRUG LIKE MORPHINE IS
2 RESPIRATORY DEPRESSION, OR A DECREASE IN THE DESIRE TO
3 BREATHE.
4 Q. IN THE DESIRE TO BREATHE?
5 A. UH-HUH.
6 Q. SO WHAT PORTION OF THE BODY DOES -- I MEAN, HOW DOES IT
7 IMPACT YOUR DESIRE TO BREATHE?
8 A. THERE ARE CERTAIN CENTERS IN THE BRAIN THAT ARE CALLED
9 THE RESPIRATORY DRIVE CENTER. MORPHINE HAS A VERY SELECTIVE
10 EFFECT ON THAT CENTER TO MAKE IT LESS ACTIVE. SO PATIENTS
11 WHO HAVE RECEIVED -- THIS IS SOMETHING WE SEE IN THE
12 OPERATING ROOM. WE CAN GIVE PATIENTS LARGE DOSES OF A
13 MEDICINE LIKE FENTANYL OR MORPHINE. UNLESS WE REMIND THEM
14 TO BREATHE THEY WON'T. OF COURSE, WE AT SOME POINT TAKE
15 OVER THEIR BREATHING FOR THEM. BUT IT'S A VERY INTERESTING
16 PHENOMENON. THEY CAN BE AWAKE AND YET NOT WANTING TO
17 BREATHE.
18 Q. SO ESSENTIALLY YOU JUST DON'T BREATHE?
19 A. YES.
20 Q. BASED UPON YOUR EXPERIENCE, TRAINING, YOUR EXPERTISE,
21 YOUR REVIEW OF THESE MEDICAL RECORDS, HAVE YOU FORMED AN
22 OPINION, BASED UPON A REASONABLE DEGREE OF MEDICAL
23 CERTAINTY, AS TO THE CAUSE OF DEATH OF ELLEN ANDERSON?
24 MR. STIRBA: OBJECTION. CUMULATIVE.
25 THE COURT: OVERRULED.
2571
1 Q. (BY MR. WILSON) ANSWER THE QUESTION YES OR NO.
2 A. YES, I HAVE.
3 Q. OKAY. WHAT IS THAT OPINION, SIR?
4 A. I BELIEVE THAT ELLEN ANDERSON SUCCUMBED BECAUSE OF
5 EXCESSIVE DOSING OF MORPHINE.
6 Q. OKAY. LET'S TURN TO THE NEXT PATIENT, THAT BEING JUDITH
7 LARSEN. I WOULD AGAIN CALL YOUR ATTENTION TO WHAT IS MARKED
8 AS STATE'S EXHIBIT 38 AND ASK YOU IF YOU HAVE FAMILIARIZED
9 YOURSELF WITH THAT EXHIBIT?
10 A. YES, I HAVE.
11 Q. AND YOU'VE ALSO -- THIS PERTAINS TO THE MEDICAL RECORDS
12 OF JUDITH LARSEN, DOES IT NOT?
13 A. YES. I WOULD SAY THIS FAIRLY REPRESENTS THE MEDICATIONS
14 IN THE MEDICAL RECORDS.
15 Q. OKAY. NOW, THIS EXTENDS OVER A TIME PERIOD FROM
16 DECEMBER 6TH UP TO JANUARY 3RD. DOES THAT CORRESPOND WITH
17 YOUR REVIEW OF THE MEDICAL RECORDS?
18 A. YES, IT DOES.
19 Q. WHEN WAS SHE ADMITTED TO THE GERO-PSYCH UNIT, SIR?
20 A. SHE WAS ADMITTED ON DECEMBER 6TH.
21 Q. OKAY.
22 A. 1995.
23 Q. DID YOU REVIEW HER RECORDS AT THAT TIME? I MEAN, DID
24 YOU REVIEW HER RECORDS PERTINENT TO THAT TIME?
25 A. I DID, YES.
2572
1 Q. AND CAN YOU TELL US, AT THE TIME OF HER ADMISSION,
2 WHETHER OR NOT YOU FORMED ANY OPINION AS TO WHAT HER
3 PHYSICAL CONDITION WAS?
4 A. THERE SEEMED -- EVEN THOUGH SHE HAD HAD --
5 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. THE
6 RECORDS INDICATE WHAT HER PHYSICAL CONDITION WAS BASED UPON
7 THE PEOPLE WHO WERE THERE AT THE TIME. I DON'T THINK HIS
8 OPINION AS A PAIN EXPERT IS RELEVANT TO WHAT HER PHYSICAL
9 CONDITION WAS AT THE TIME. HE DOESN'T HAVE THAT EXPERTISE.
10 THE COURT: LET'S GET TO HIS OPINION AS TO WHAT HE
11 WAS CALLED FOR.
12 MR. WILSON: LET ME ASK IT THIS WAY, THEN.
13 Q. (BY MR. WILSON) WAS THERE ANY DISEASE PROCESSES THAT
14 YOU WERE AWARE OF WHICH, IN YOUR REVIEW OF THOSE RECORDS,
15 WOULD BE INDICATIVE OF PAIN?
16 A. THERE WERE NOT.
17 Q. OKAY. WERE THERE ANY DISEASE PROCESSES, IN YOUR
18 OPINION, WHICH WOULD BE REPRESENTATIVE THAT SHE WAS
19 SUFFERING FROM ANY TERMINAL STATE?
20 A. NO.
21 Q. IN RESPECT TO THE INITIAL ADMINISTRATION OF THE
22 MEDICATIONS, CAN YOU TELL US WHAT TYPES OF MEDICATIONS WERE
23 INITIALLY GIVEN TO HER? DO YOU WANT TO STEP TO THE BOARD?
24 A. MAY I ASK, HAS THE JURY SEEN THIS CHART BEFORE?
25 Q. THEY HAVE.
2573
1 A. OKAY. THESE ARE THE VARIETY OF DIFFERENT MEDICATIONS IN
2 THE DIFFERENT COLORS. KLONOPIN, TRAZODONE, SERZONE,
3 RISPERDAL, ATIVAN. THIS WOULD REFLECT THE INITIAL
4 MEDICATIONS THAT SHE RECEIVED, KLONOPIN, TRAZODONE, ATIVAN.
5 Q. NOW, SHE APPARENTLY RECEIVED THOSE OVER A FAIRLY
6 SIGNIFICANT PERIOD OF TIME, IS THAT CORRECT?
7 A. SHE DID.
8 Q. AND IN RESPECT TO THOSE PARTICULAR MEDICATIONS, DOCTOR,
9 AND YOUR REVIEW OF THE MEDICAL RECORDS AS TO -- WOULD THESE
10 MEDICATIONS, IN YOUR OPINION, HAVE ANY SEDATING SIDE
11 EFFECTS?
12 A. YES, THEY WOULD.
13 Q. OKAY. AND DO THEY HAVE ANY CENTRAL NERVOUS SYSTEM
14 DEPRESSANT SIDE EFFECTS?
15 A. YES, THEY WOULD.
16 Q. OKAY. GO AHEAD AND TAKE YOUR SEAT, IF YOU WOULD,
17 PLEASE.
18 A. (WITNESS COMPLIED.)
19 Q. THE DOSAGE AMOUNTS THAT ARE LISTED OVER THAT PARTICULAR
20 TIME FRAME, DOES THAT BEAR ANY SIGNIFICANCE IN YOUR MIND?
21 A. UMM, WELL, THERE WERE CERTAINLY, AT LEAST INITIALLY, AN
22 UPWARD TREND IN THE AMOUNT OF MEDICATION THAT SHE RECEIVED
23 OVER THE FIRST FEW DAYS. I THINK THAT, DEPENDING ON WHAT
24 SORT OF REACTION SHE HAD TO THAT, WOULD CERTAINLY BE AN
25 IMPORTANT PART OF THIS.
2574
1 Q. OKAY. IN YOUR REVIEW OF THE RECORDS, DID YOU SEE ANY
2 SIGNS OR SYMPTOMS WHICH WOULD INDICATE TO YOU THAT THIS
3 PATIENT WAS OVERLY SEDATED?
4 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
5 THAT'S VAGUE AND AMBIGUOUS.
6 THE COURT: DO YOU WANT TO REPHRASE THAT? I DON'T
7 KNOW IF THAT'S AN ADEQUATE QUESTION.
8 Q. (BY MR. WILSON) LET ME REPHRASE IT THIS WAY. DID YOU
9 SEE ANY SIGNS OR SYMPTOMS, RELATED TO THIS PARTICULAR
10 PATIENT, THAT SHE WAS HAVING ANY ADVERSE REACTION TO THE
11 ADMINISTRATION OF THESE PARTICULAR MEDICATIONS?
12 A. ON DECEMBER 8TH, AND THIS WOULD BE TWO DAYS AFTER
13 ADMISSION, THE NURSE'S NOTES REFLECT THAT THE PATIENT SLEPT
14 THE FULL SHIFT. THIS WAS AT NIGHT, SO I GUESS THAT'S
15 PROBABLY OKAY.
16 ON DECEMBER 9TH THE NOTES WOULD MENTION, THOUGH, THAT
17 IN THIS SITUATION SHE WAS SLEEPING ALL DAY. DECEMBER 10TH,
18 SOMNOLENT MOST OF THE SHIFT. IN OTHER WORDS, VERY SLEEPY
19 MOST OF THE SHIFT.
20 Q. DID THERE COME A TIME DURING THIS TIME PERIOD THAT THE
21 PATIENT SEEMED TO IMPROVE?
22 A. MORE OR LESS IN THE MIDDLE OF THIS, SOMEWHERE ALONG THE
23 WAY THERE, SHE SEEMED TO IMPROVE. THE REASON FOR THAT, I
24 THINK ON DECEMBER 14TH --
25 MR. STIRBA: I THINK THE QUESTION WAS WAS THERE A
2575
1 TIME PERIOD WHEN SHE SEEMED TO IMPROVE. I THINK THE DOCTOR
2 ANSWERED IT.
3 THE COURT: SUSTAINED.
4 Q. (BY MR. WILSON) IN RESPECT TO THAT PERIOD OF TIME, DID
5 YOU OBSERVE ANY SIGNS OR COMPLAINTS IN THE MEDICAL RECORDS
6 THAT YOU REVIEWED CONCERNING PAIN?
7 MR. STIRBA: CAN WE HAVE SOME MORE FOUNDATION?
8 DURING WHAT PERIOD OF TIME?
9 THE COURT: WHICH DAYS?
10 Q. (BY MR. WILSON) LET'S EXTEND IT FROM THE TIME PERIOD
11 OF THE 6TH OF DECEMBER UP TO, SAY, THE 24TH OF DECEMBER?
12 A. THERE WAS NO INDICATION IN THE RECORD THAT PAIN WAS A
13 PROBLEM.
14 Q. OKAY. CAN YOU TELL US WHETHER OR NOT THIS PARTICULAR
15 PATIENT RECEIVED ANY INJECTION OF MORPHINE ON THE 25TH OF
16 DECEMBER?
17 A. SHE DID. OR SHE HAD -- LET ME CHECK HERE. (PAUSE.) ON
18 THE 25TH SHE DID RECEIVE TWO SMALL DOSES OF MORPHINE. TWO
19 MILLIGRAM DOSES ABOUT TWO HOURS APART. I'M SORRY, THREE
20 DOSES OVER ABOUT A FOUR HOUR PERIOD.
21 Q. OKAY. OVER ABOUT A FOUR HOUR PERIOD?
22 A. YES.
23 Q. DO YOU KNOW WHAT THAT WAS FOR?
24 A. I'M NOT AWARE THERE WAS A SPECIFIC INDICATION FOR IT.
25 Q. OKAY. See indication>>
2576
1 A. THE NOTE SAID THAT PATIENT BECAME MORE ALERT AS THE
2 SHIFT PROGRESSED AND SHE WAS MEDICATED WITH MORPHINE.
3 Q. WHEN WAS THE NEXT DOSAGE OF MORPHINE, ACCORDING TO YOUR
4 REVIEW OF THE RECORDS?
5 A. THE PATIENT RECEIVED ONE MORE DOSE ON THE MORNING OF THE
6 26TH; ANOTHER TWO MILLIGRAM DOSE.
7 Q. WAS THERE ANY PARTICULAR EVENT, ACUTE EVENT, THAT
8 OCCURRED IN THE RECORDS THAT YOU REVIEWED ABOUT THAT TIME?
9 A. ON THE MORNING OF THE 26TH THE PATIENT WAS THOUGHT TO
10 HAVE HAD A SEIZURE.
11 Q. OKAY.
12 A. AND SHE WAS TREATED AS IF THAT HAD HAPPENED.
13 Q. OKAY. IS MORPHINE USED IN THE TREATMENT OF SEIZURES?
14 A. NO, IT'S NOT.
15 Q. OKAY. IN RESPECT TO THE USE OF MORPHINE IN THAT
16 CONTEXT, IN A SUSPECTED SEIZURE, WOULD MORPHINE CREATE ANY
17 PROBLEMS?
18 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT TO THE
19 QUESTION. I DON'T THINK THERE'S BEEN A FOUNDATION LAID BY
20 THIS DOCTOR THAT THE MORPHINE WAS USED IN THE CONTEXT OF
21 TREATING THE SEIZURE.
22 THE COURT: SUSTAINED.
23 Q. (BY MR. WILSON) LET ME JUST PHRASE IT THIS WAY. I'LL
24 STRIKE THAT, RATHER. LET'S JUST MOVE ON. WHEN IS THE NEXT
25 TIME MORPHINE IS USED?
2577
1 A. UMM, THE NEXT DOSE THAT IS SHOWN ON THE CHART AND IN MY
2 RECORDS WOULD BE ON DECEMBER 30TH.
3 Q. OKAY. CAN YOU TELL US, BETWEEN DECEMBER 27TH, OR 26TH,
4 EXCUSE ME, BETWEEN DECEMBER 26TH AND THE 30TH, WERE THERE
5 ANY INDICATIONS IN THE RECORD OF SIGNS OR SYMPTOMS OF PAIN?
6 A. THERE WERE NOT.
7 Q. ON THE 30TH ITSELF DID YOU SEE ANY RECORD THAT WOULD
8 EXHIBIT SIGNS OR SYMPTOMS OF PAIN?
9 A. NO.
10 Q. OKAY. DO YOU KNOW WHY THE MORPHINE WAS ADMINISTERED ON
11 THAT PARTICULAR DAY?
12 MR. STIRBA: OBJECTION, YOUR HONOR. THE QUESTION
13 IS AMBIGUOUS AS TO WHY. HE CAN TESTIFY AS TO WHAT THE
14 RECORDS SHOW.
15 THE COURT: HE'S ASKING HIM IF HE KNOWS WHY.
16 OVERRULED.
17 Q. (BY MR. WILSON) FROM YOUR REVIEW OF THE RECORDS, DOES
18 IT INDICATE THE PURPOSE FOR THE ADMINISTRATION OF THE
19 MORPHINE?
20 A. IT APPEARS THAT ON THE MORNING OF THE 30TH THE PATIENT
21 VOMITED AND THE VOMITUS APPEARED TO CONTAIN BLOOD,
22 SUGGESTING THAT THE PATIENT WAS BLEEDING INTERNALLY. WITH
23 THAT, DR. WEITZEL APPROACHED THE FAMILY AND PRESENTED,
24 APPARENTLY, THAT HE THOUGHT THE PATIENT'S PHYSICAL CONDITION
25 HAD GONE WAY DOWNHILL AND THAT MORPHINE OUGHT TO BE GIVEN
2578
1 FOR COMFORT CARE.
2 Q. DID YOU SEE ANYTHING IN THE MEDICAL RECORDS AT THAT TIME
3 WHICH WOULD INDICATE TO YOU A MEDICAL NECESSITY OF
4 PRESCRIBING MORPHINE?
5 A. ALL THE NOTES INDICATE THAT THE PATIENT IS UNRESPONSIVE.
6 IT DOESN'T REALLY SEEM THAT THE PATIENT -- THAT THERE'S ANY
7 INDICATION FOR GIVING THE MORPHINE IN THE CHART.
8 Q. DID YOU SEE ANYTHING IN THE MEDICAL RECORD WHICH WOULD
9 BE INDICATIVE TO YOU THAT THIS PATIENT WAS IN A TERMINAL
10 STATE?
11 A. THE PATIENT AT THIS TIME WAS HEAVILY SEDATED, OR
12 APPEARED TO BE HEAVILY SEDATED FROM MEDICATIONS RECEIVED.
13 THAT SEEMED TO BE A LARGE CONTRIBUTOR TO THE POOR OUTLOOK.
14 MR. STIRBA: YOUR HONOR, I'M NOT SO SURE HE'S
15 ANSWERING THE QUESTION. WHAT TIME PERIOD, THE 30TH, THE
16 29TH, THE 31ST? IT'S VERY CRITICAL TESTIMONY.
17 THE COURT: WHY DON'T YOU REPHRASE THE QUESTION.
18 MR. WILSON: I'LL REPHRASE THE QUESTION.
19 Q. (BY MR. WILSON) AS TO THE 30TH OF DECEMBER, DOCTOR,
20 DID YOU SEE ANYTHING IN THE MEDICAL RECORDS WHICH WOULD
21 INDICATE THAT THIS PATIENT WAS IN A TERMINAL STATE? MAYBE I
22 BETTER ASK A PREDICATE QUESTION TO THAT. WHAT DOES THE TERM
23 TERMINAL MEAN?
24 A. IT MEANS THAT WITHOUT -- I MEAN EVEN WITH MEDICAL
25 INTERVENTION THE PATIENT WILL NOT RECOVER FROM THEIR MEDICAL
2579
1 PROBLEMS.
2 Q. OKAY.
3 A. IT GENERALLY IMPLIES A SHORT TERM NATURE OF THIS
4 DETERIORATION.
5 Q. OKAY. AND WHEN WE SPEAK OF SHORT TERM, WHAT ARE WE
6 TALKING ABOUT TIMEWISE?
7 A. PROBABLY HOURS TO DAYS.
8 Q. HOURS TO DAYS. OKAY. AGAIN, THE QUESTION IS ON
9 DECEMBER THE 30TH DID YOU SEE ANYTHING IN THE MEDICAL RECORD
10 WHICH WOULD INDICATE TO YOU THAT THIS PATIENT WAS TERMINAL?
11 A. NOT REALLY, NO.
12 Q. OKAY. DID YOU SEE ANYTHING IN THE MEDICAL RECORD
13 INDICATIVE OF PAIN ON THAT PARTICULAR DAY?
14 A. NO, I DID NOT.
15 Q. NOW, LET'S GO THROUGH THE TIME PERIOD EXTENDING FROM, I
16 THINK, DECEMBER THE 30TH, OR DECEMBER 31ST, RATHER, UP TO
17 JANUARY 3RD. HAVE YOU REVIEWED THOSE MEDICAL RECORDS?
18 A. YES, I HAVE.
19 Q. OKAY. AGAIN, THE QUESTION WOULD BE, DURING THAT TIME
20 PERIOD, DOCTOR, DID YOU SEE ANY EVIDENCE, OR I SHOULD SAY
21 SIGNS OR SYMPTOMS IN THE MEDICAL RECORDS THAT YOU REVIEWED
22 WHICH WOULD INDICATE TO YOU THAT THIS PATIENT WAS SUFFERING
23 PAIN?
24 A. I FOUND NO INDICATION OF THAT. THE PATIENT SEEMED TO BE
25 MINIMALLY RESPONSIVE TO ANY SORT OF STIMULUS DURING THIS Indication of pain>> Indication of pain>> Indication of pain>> Indication of pain>> Indication of pain>> Indication of pain>> Indication of pain>> Indication of pain>>
2580
1 TIME.
2 Q. OKAY. DID YOU SEE ANY EVIDENCE -- EXCUSE ME. STRIKE
3 THAT. DID YOU SEE ANY SIGNS OR SYMPTOMS THAT THIS PATIENT
4 WAS SUFFERING FROM MORPHINE TOXICITY DURING THAT TIME FRAME?
5 A. WELL, THE PATIENT REMAINED, AS I SAID, UNRESPONSIVE. SO
6 CERTAINLY ONE SIGN OF MORPHINE TOXICITY WOULD BE
7 UNCONSCIOUSNESS. THE PATIENT'S BREATHING RATE WAS SLOW. IT
8 WAS AROUND -- WELL, THE FEW TIMES IT'S NOTED HERE IT WAS
9 AROUND 12, WHICH IS ON THE LOW SIDE.
10 Q. YOU INDICATE THE FEW TIMES IT'S NOTED?
11 A. YES.
12 Q. WAS IT NOTED OR MONITORED ON A REGULAR BASIS, DOCTOR,
13 ACCORDING TO THE MEDICAL RECORDS?
14 A. IT APPEARS THAT AT MOST IT WAS ABOUT EVERY EIGHT HOURS.
15 Q. OKAY. WHAT TYPE OF DOSAGES WAS THIS PATIENT RECEIVING
16 ON THE 31ST OF DECEMBER?
17 A. THE PATIENT ON THE 31ST WAS RECEIVING FIVE MILLIGRAMS OF
18 MORPHINE ROUND THE CLOCK EVERY FOUR HOURS. SO AUTOMATICALLY
19 EVERY FOUR HOURS SHE WOULD GET ANOTHER FIVE MILLIGRAMS.
20 Q. DID THAT DOSAGE EVER INCREASE?
21 A. THERE WAS AN EXTRA FIVE MILLIGRAM DOSE THROWN IN THERE.
22 SO IN ADDITION TO THE REGULAR DOSING THE PATIENT DID RECEIVE
23 AN EXTRA ONE.
24 Q. OKAY. REFERRING TO THE 1ST OF JANUARY?
25 A. THEN ON JANUARY 1ST THE INTERVAL FOR DOSING WAS CHANGED
2581
1 FROM FIVE MILLIGRAMS EVERY FOUR HOURS TO FIVE MILLIGRAMS
2 EVERY THREE HOURS. SO EFFECTIVELY INCREASING THE DOSE THAT
3 THE PATIENT WAS RECEIVING.
4 Q. IN RESPECT TO THAT PARTICULAR TYPE OF INTERVAL, DOES
5 THAT BEAR ANY SIGNIFICANCE IN YOUR MIND?
6 A. WELL, THE FOUR HOUR DOSE, IN THE NORMAL CLINICAL
7 SETTING, IS GENERALLY CONSIDERED STANDARD FOR A DOSE OF
8 MORPHINE TO RUN ITS COURSE. IT'S INJECTED OR ADMINISTERED
9 AND FOUR HOURS LATER IT'S KIND OF ON THE DOWN SLOPE AND IT'S
10 TIME TO GIVE ANOTHER DOSE.
11 IF IT'S GIVEN THREE HOURS APART, THEN THE DOSES WILL
12 BEGIN TO PILE ON TOP OF ONE ANOTHER. THE MORPHINE IS NOT
13 SUFFICIENTLY CLEARED, SO THE NEXT DOSE IS GOING TO HAVE A
14 GREATER EFFECT AND THE NEXT ONE EVEN GREATER AND IT WILL
15 START TO PILE UP. Even the first-year med student could not fail to be appalled.
16 Q. THAT WAS WHAT OCCURRED ON THE 31ST OF -- EXCUSE ME, THE
17 1ST OF JANUARY?
18 A. YES.
19 Q. OKAY.
20 A. AND SHE DID GET SOME EXTRA DOSES THROWN IN THERE ALSO,
21 SO ADDITIONAL DOSES.
22 Q. IN RESPECT TO THE 1ST OF JANUARY, DOCTOR, CAN YOU TELL
23 US WAS THERE ANY INDICATIONS IN THE MEDICAL RECORD RELATIVE
24 TO ANY COMPLAINTS OR SIGNS AND SYMPTOMS OF PAIN?
25 A. THERE SEEMED TO BE NO CLEAR INDICATION THAT THE PATIENT
2582
1 WAS HAVING PAIN.
2 Q. OKAY. WAS THERE ANY SIGNS OR SYMPTOMS THAT THIS PATIENT
3 WAS SUFFERING FROM ANY TOXICITY FROM THE INJECTIONS OF
4 MORPHINE?
5 A. AGAIN, THE PATIENT WAS UNRESPONSIVE. THE BREATHING RATE
6 WAS SLOW. BLOOD PRESSURE WAS FAIRLY NORMAL, BUT THAT
7 DOESN'T NECESSARILY FIT ONE WAY OR ANOTHER. SO THERE
8 DEFINITELY WERE SIGNS THERE THAT THE PATIENT IS BEING
9 AFFECTED BY THE DRUG.
10 Q. GO TO JANUARY 2ND. WERE THERE ADDITIONAL -- WAS THERE
11 ADDITIONAL MORPHINE ADMINISTERED ON THAT DAY?
12 A. IT APPEARS ON THE 2ND THAT THE PATIENT CONTINUED TO GET
13 THE EVERY THREE HOUR DOSING OF THE MORPHINE, SO IT WAS GIVEN
14 AT -- WITH EXCESSIVE FREQUENCY.
15 Q. WAS THERE ANY MORPHINE ORDERED BUT WITHHELD ON THAT
16 PARTICULAR DAY? See withheld morphine>>
17 A. (PAUSE.) I DON'T SEE ANY THAT WERE WITHHELD, NO.
18 Q. OKAY. LET'S GO TO THE 3RD OF JANUARY. CAN YOU TELL US,
19 DID THE PATIENT DIE ON THAT DAY?
20 A. YES, SHE DID.
21 Q. WHAT TIME DID SHE DIE?
22 A. IT WAS ABOUT EIGHT O'CLOCK IN THE EVENING. 8:10 TO BE
23 EXACT.
24 Q. ON THAT PARTICULAR DATE, DOCTOR, DID SHE RECEIVE ANY
25 INJECTIONS OF MORPHINE?
2583
1 A. UMM, YES. THE DOSE OF MORPHINE ON THAT DAY, LATER IN
2 THE DAY -- THROUGH MOST OF THE DAY THE PATIENT CONTINUED TO
3 RECEIVE THE FIVE MILLIGRAMS EVERY THREE HOURS. BUT THEN AT
4 ABOUT 6:30 IN THE EVENING THAT DOSE WAS INCREASED, DOUBLED.
5 INCREASED TO 10 MILLIGRAMS EVERY THREE HOURS ROUND THE
6 CLOCK.
7 Q. WERE THERE ADDITIONAL DOSAGES GIVEN TO THE PATIENT ON
8 THAT PARTICULAR DAY?
9 A. YES. IN ADDITION TO THE 10 MILLIGRAMS EVERY THREE
10 HOURS, THE PATIENT RECEIVED ANOTHER 25 MILLIGRAMS AT TEN IN
11 THE MORNING. SHE RECEIVED AN ADDITIONAL 15 MILLIGRAMS AT
12 6:30 IN THE EVENING AND 30 MILLIGRAMS AT, I BELIEVE, ELEVEN
13 O'CLOCK.
14 Q. IN THE MORNING?
15 A. I BELIEVE SO, YES.
16 Q. OKAY.
17 A. SO SHE WAS NOT ONLY GETTING A LOT OF MEDICATION ON A
18 REGULAR BASIS, BUT SHE WAS GETTING WHAT I WOULD CONSIDER TO
19 BE VERY LARGE DOSES INTERMITTENTLY ON TOP OF THAT.
20 Q. DID YOU SEE ANY SIGNS OR SYMPTOMS OF MORPHINE TOXICITY
21 ON THE 3RD OF JANUARY?
22 A. AGAIN, THE PATIENT WAS UNRESPONSIVE. BLOOD PRESSURE IS
23 VERY LOW. I'M SORRY, THE HEART RATE -- I JUMPED AHEAD OF
24 MYSELF. IT'S LISTED HERE THAT THE FINGERS WERE CYANOTIC,
25 WHICH COULD BE AN INDICATION OF POOR CIRCULATION OR LACK OF
2584
1 OXYGEN. THE PATIENT DOESN'T RESPOND. AND THEN FINALLY, AT
2 8:10, THE PATIENT IS NOT -- IT SAYS PATIENT WITHOUT VITAL
3 SIGNS. SO NO BLOOD PRESSURE, NO RESPIRATORY, NO HEART RATE.
4 Q. OKAY. BASED ON YOUR EXPERIENCE, TRAINING AND EXPERTISE,
5 AND FROM YOUR REVIEW OF THESE MEDICAL RECORDS, DO YOU HAVE
6 AN OPINION, OR HAVE YOU FORMED AN OPINION, BASED TO A
7 REASONABLE DEGREE OF MEDICAL CERTAINTY, AS TO THE CAUSE OF
8 DEATH OF JUDITH LARSEN? ANSWER THAT YES OR NO.
9 A. YES.
10 Q. OKAY. AND WHAT IS THAT OPINION?
11 A. I BELIEVE THAT THE PATIENT ULTIMATELY DIED FROM
12 EXCESSIVE MORPHINE DOSES, BUT WAS WEAKENED BY THE CUMULATIVE
13 EFFECTS OF SEDATING MEDICATIONS UP UNTIL THE TIME THE
14 MORPHINE WAS GIVEN.
15 Q. LET'S TURN TO THE RECORDS OF MARY CRANE. I SHOW YOU
16 WHAT HAS BEEN MARKED AS STATE'S EXHIBIT NUMBER 36 AND ASK
17 YOU IF CAN IDENTIFY THAT EXHIBIT, PLEASE?
18 A. THIS, AGAIN, IS A GRAPHIC PRESENTATION OF THE
19 MEDICATIONS RECEIVED BY MARY CRANE DURING HER
20 HOSPITALIZATION AT THE GERO-PSYCH UNIT.
21 Q. ARE THOSE MEDICATIONS LISTED THERE CENTRAL -- DO THEY
22 HAVE -- LET ME START OVER. THE MEDICATIONS LISTED THERE,
23 HAVE YOU REVIEWED THEM?
24 A. YES, I HAVE.
25 Q. AND DO THOSE MEDICATIONS INDICATE MEDICATIONS WHICH HAVE
2585
1 SEDATING SIDE EFFECTS?
2 A. YES, THEY ARE.
3 Q. OKAY. THERE'S ALSO A MEDICATION ON THERE THAT IS
4 DESIGNATED AS THE DURAGESIC PATCH, IS THAT CORRECT?
5 A. YES.
6 Q. THAT IS THE MEDICATION YOU PREVIOUSLY TESTIFIED TO AS
7 FENTANYL?
8 A. YES, IT IS.
9 Q. OKAY. IN THE INTEREST OF TIME, I'M JUST GOING TO ASK
10 YOU, DOCTOR, YOU REVIEWED THESE RECORDS IN RESPECT TO THE
11 MEDICATIONS THAT WERE ADMINISTERED TO MARY CRANE EXTENDING
12 OVER THE TIME PERIOD FROM DECEMBER 28TH THROUGH JANUARY 7TH,
13 IS THAT CORRECT?
14 A. YES, IT IS.
15 Q. CAN YOU TELL US, FIRST OF ALL, DURING THAT PARTICULAR
16 TIME PERIOD DID YOU SEE IN THE MEDICAL RECORD ITSELF ANY
17 SIGNS OR SYMPTOMS WHICH WOULD BE INDICATIVE OF PAIN?
18 A. IN THIS PARTICULAR CASE THE PATIENT DID HAVE A HISTORY
19 OF COMPLAINING OF HEADACHES AND DID HAVE A HISTORY OF LOW
20 BACK PAIN PRIOR TO COMING INTO THE HOSPITAL. AS FAR AS
21 CLEAR SIGNS OF PAIN, YOU KNOW, ONCE SHE WAS IN THE CARE
22 CENTER HERE THERE WERE MINIMAL INDICATIONS OF THAT, IF ANY.
23 Q. IN RESPECT TO THE RECORDS YOU REVIEWED PRIOR TO HER
24 ADMISSION, YOU INDICATE THAT SHE HAD SUFFERED FROM SOME KIND
25 OF CHRONIC BACK PAIN?
2586
1 A. YES.
2 Q. OKAY. CAN YOU TELL US, DID YOU OBSERVE IN THOSE RECORDS
3 AS TO HOW THAT BACK PAIN WAS MEDICATED?
4 A. USUALLY WITH TYLENOL. SHE COMPLAINED OF LOW BACK PAIN,
5 HEADACHES. I THINK THERE WAS A SHOULDER PAIN COMPLAINT
6 ALSO. REGARDLESS OF WHICH OF THESE SHE COMPLAINED OF, MOST
7 OF THE TIME TYLENOL TOOK CARE OF THE PAIN. She got Lortab every day.
8 Q. OKAY. DID YOU SEE ANYTHING, RELATED TO THE MEDICAL
9 RECORDS YOU OBSERVED, AFTER ADMISSION WHICH WOULD INDICATE
10 TO YOU ANY MEDICAL NECESSITY FOR TREATMENT WITH MORPHINE?
11 A. NO, I DID NOT.
12 Q. DID YOU SEE ANY SIGNS OR SYMPTOMS IN THE MEDICAL RECORD
13 OF PAIN WHICH WOULD INDICATE TO YOU THE NECESSITY OF USING
14 THE DURAGESIC PATCH?
15 A. NO, I DID NOT. See one>> See another>> And another>> (All ON Duragesic)
16 Q. OKAY. IN RESPECT TO THIS PARTICULAR PATIENT, DOCTOR,
17 CAN YOU TELL US, FIRST OF ALL, THE EFFECTIVE TIME PERIOD A
18 DURAGESIC PATCH IS -- MAYBE I NEED TO REPHRASE THIS.
19 JUST EXPLAIN TO US AGAIN WHAT A DURAGESIC PATCH IS, HOW
20 IT WORKS?
21 A. AS I MENTIONED EARLIER, THE DURAGESIC PATCH CONTAINS THE
22 NARCOTIC FENTANYL AND IS PLACED ON THE SKIN. THE DRUG GOES
23 THROUGH THE SKIN INTO THE BLOODSTREAM AND THAT'S HOW IT
24 CAUSES ITS EFFECTS.
25 IT'S A UNIQUE DOSE FORM IN THAT IT TAKES PROBABLY
2587
1 TWO-THIRDS OF A DAY, SOMETHING LIKE 17 OR 18 HOURS, ONCE
2 IT'S PLACED ON THE SKIN FOR THE BLOOD LEVELS TO BUILD UP TO
3 WHATEVER LEVEL THEY'RE GOING TO GET. IN OTHER WORDS, TO
4 ACHIEVE WHATEVER EFFECT THEY MAY. SO IT'S A VERY SLOW SORT
5 OF A DOSE FORM. IT'S RATHER HARD TO REGULATE, ALSO,
6 PARTICULARLY TO BEGIN WITH. SO, IN OTHER WORDS, IF YOU PUT
7 THE PATCH ON IT'S LIKE 18 HOURS LATER WHEN YOU CAN ASSESS
8 HOW WELL IT'S WORKING AND WHAT YOUR MAXIMUM EFFECTS ARE
9 GOING TO BE.
10 Q. OKAY. DO YOU KNOW WHAT TYPE OF DURAGESIC PATCH WAS
11 PLACED ON THIS PARTICULAR PATIENT?
12 A. SHE INITIALLY HAD A 25-MICROGRAM PER HOUR PATCH PLACED,
13 WHICH IS THE LOWEST CONCENTRATION. BUT THEN ABOUT, I
14 BELIEVE, THREE HOURS LATER THAT 25-MICROGRAM PATCH WAS
15 CHANGED TO A 50-MICROGRAM PATCH.
16 Q. WERE THERE FURTHER PATCHES THAT WERE ADMINISTERED OVER
17 THIS PERIOD OF TIME?
18 A. EVENTUALLY SHE WAS PLACED ON A 75-MICROGRAM PATCH.
19 Q. AND WHEN DID THAT OCCUR, TO YOUR REVIEW?
20 A. LET ME LOOK AT MY NOTES HERE. (PAUSE.) JANUARY 3RD SHE
21 WAS ON THE 50. ON JANUARY 4TH SHE WAS ON 75. SHE REMAINED
22 ON THAT THROUGH THE REST OF THE HOSPITALIZATION.
23 Q. OKAY. SO YOU SAY THE EFFECTIVENESS OF THAT PATCH IS
24 SOME 18 HOURS AFTER THE PATCH IS PLACED ON THE INDIVIDUAL?
25 A. YES. THE MAXIMUM EFFECT.
2588
1 Q. OKAY. AND IT LASTS FOR HOW LONG?
2 A. EACH OF THE PATCHES WILL LAST ABOUT THREE DAYS.
3 Q. THE QUESTION I HAVE, WHEN DID THIS PATIENT PASS AWAY?
4 A. THE PATIENT DIED ON JANUARY 8TH. I THINK IT WAS VERY
5 EARLY ON JANUARY 8TH. PERHAPS LATE ON THE 7TH, BUT RIGHT
6 AROUND MIDNIGHT ON THE 8TH.
7 Q. CAN YOU TELL US WHETHER OR NOT YOU OBSERVED DURING THIS
8 TIME PERIOD THAT SHE'S ON -- FROM, AGAIN, DECEMBER 28TH UP
9 UNTIL THE 7TH OF JANUARY, WHETHER SHE EXHIBITED ANY SIGNS OR
10 SYMPTOMS RELATED TO TOXICITY FROM EITHER THE DURAGESIC PATCH
11 OR THE MORPHINE INJECTIONS?
12 A. (PAUSE.) THERE ARE NOTATIONS OF THE PATIENT BEING
13 LETHARGIC, NONRESPONSIVE. SHE WAS REQUIRING SUPPLEMENTAL
14 OXYGEN, SO HER BREATHING WAS DECREASED IF SHE WAS REQUIRING
15 OXYGEN. ON THE 7TH SHE'S DESCRIBED AS BEING LETHARGIC ALL
16 SHIFT. HER BLOOD OXYGEN SATURATIONS AT THAT TIME WERE IN
17 THE 70 TO 80 RANGE, WHICH IS REALLY NOT COMPATIBLE WITH
18 LIFE. IT'S MUCH LOWER THAN WHAT WOULD SUSTAIN ANY SORT OF
19 NORMAL BODY FUNCTIONS. SHE'S DESCRIBED AS CYANOTIC, WHICH
20 WOULD JUST REFLECT NOT MUCH OXYGEN IN THE BLOOD. AND THEN
21 SHORTLY AFTER THAT IS WHEN SHE DIED.
22 Q. OKAY. DOCTOR, BASED UPON YOUR EXPERIENCE AND TRAINING,
23 AND YOUR EXPERTISE AND YOUR REVIEW OF THESE RECORDS, HAVE
24 YOU FORMED AN OPINION, BASED UPON A REASONABLE DEGREE OF
25 MEDICAL CERTAINTY, AS TO THE CAUSE OF DEATH OF MARY CRANE?
2589
1 ANSWER THAT YES OR NO.
2 A. YES.
3 Q. AND WHAT IS THAT OPINION, SIR?
4 A. I FEEL THAT MARY CRANE WAS ADVERSELY AFFECTED BY A
5 NUMBER OF THE CENTRAL NERVOUS SYSTEM DRUGS THAT SHE
6 RECEIVED. SHE SUFFERED MEDICAL COMPLICATIONS, INCLUDING
7 ASPIRATION OF PNEUMONIA BECAUSE OF THE MEDICATIONS. SHE
8 ULTIMATELY SUCCUMBED BECAUSE OF LARGE DOSES OF NARCOTIC.
9 Q. THOSE NARCOTICS BEING?
10 A. FENTANYL AND MORPHINE.
11 Q. OKAY. THANK YOU, DOCTOR. I SHOW YOU WHAT'S BEEN MARKED
12 AS STATE'S EXHIBIT 37. I'LL ASK YOU IF YOU HAVE HAD
13 OCCASION TO REVIEW THAT PARTICULAR EXHIBIT?
14 A. I HAVE.
15 Q. CAN YOU TELL US, IN RESPECT TO YOUR REVIEW, DOES THAT --
16 THE MEDICATIONS THAT ARE LISTED THERE, DOES THAT COMPORT
17 WITH THE NOTES AND REVIEW THAT YOU MADE OF THE MEDICAL
18 RECORD AT THE HOSPITAL?
19 A. YES, IT DOES.
20 Q. OKAY. CAN YOU ALSO TELL US WHETHER OR NOT YOU REVIEWED
21 ANY OTHER NURSING HOME RECORDS IN CONNECTION WITH LYDIA
22 SMITH?
23 A. YES, I DID.
24 Q. CAN YOU TELL US, DOCTOR, IN YOUR OPINION, BASED UPON
25 THOSE REVIEWS, AT THE TIME OF HER ADMISSION WAS SHE
2590
1 SUFFERING FROM ANY MEDICAL CONDITION OR SIGNS OR SYMPTOMS
2 WHICH EVIDENCED THAT SHE WAS SUFFERING ANY PAIN?
3 A. NO, THERE WAS NO INDICATION OF THAT.
4 Q. OKAY. CAN YOU TELL US AS TO WHETHER OR NOT SHE WAS
5 SUFFERING FROM ANY CONDITION, FROM YOUR REVIEW, THAT YOU
6 WOULD CATEGORIZE AS TERMINAL?
7 A. THERE DID NOT SEEM TO BE ANY INDICATION OF THAT EITHER.
8 SHE WAS MEDICALLY STABLE. !!
9 Q. NOW, YOU'VE REVIEWED THE REGIMEN OF TREATMENT THAT WAS
10 ADMINISTERED TO THIS PATIENT OVER THIS COURSE OF TIME AND
11 CAN YOU TELL US WHAT TYPES OF MEDICATIONS SHE WAS
12 ADMINISTERED?
13 A. AGAIN, SHE WAS ADMINISTERED A WHOLE RANGE OF DIFFERENT
14 MEDICINES. RISPERDAL, THAT'S A TYPICAL ANTIPSYCHOTIC.
15 HALDOL, WHICH WAS AN ANTIPSYCHOTIC DRUG. SERZONE, WHICH IS
16 A COMBINATION SEDATIVE AND ANTIDEPRESSANT. TRAZODONE, WHICH
17 IS A SEDATIVE AND MAY BE AN ANTIDEPRESSANT. DEPAKENE, WHICH
18 IS AN ANTICONVULSANT AND IS ALSO USED FOR MOOD MANAGEMENT AS
19 I MENTIONED EARLIER. AND ATIVAN, WHICH IS A BENZODIAZEPINE
20 AND ANTIANXIETY DRUG.
21 Q. CAN YOU TELL US WHETHER OR NOT THOSE PARTICULAR
22 MEDICATIONS THAT YOU'VE JUST REFERENCED HAVE ANY CENTRAL
23 NERVOUS SYSTEM DEPRESSION SIDE EFFECTS?
24 A. THEY WOULD ALL HAVE CENTRAL NERVOUS SYSTEM DEPRESSANT
25 EFFECTS.
2591
1 Q. OKAY. GO AHEAD AND HAVE YOUR SEAT AGAIN.
2 A. (WITNESS COMPLIED.)
3 Q. IN YOUR REVIEW OF THE RECORDS DURING THIS TIME PERIOD,
4 FROM DECEMBER 20TH UNTIL JANUARY THE 8TH, DID YOU SEE,
5 DURING THAT TIME PERIOD, ANY SIGNS OR SYMPTOMS AS THEY
6 RELATE TO THE TOXIC EFFECT OF THE SEDATING DRUGS?
7 A. YES, I DID.
8 Q. OKAY. CAN YOU DESCRIBE FOR US WHAT SIGNS OR SYMPTOMS
9 YOU OBSERVED?
10 A. WELL, THIS PATIENT, EARLY ON IN HER HOSPITALIZATION,
11 ACTUALLY DIDN'T SHOW MUCH SIGN OF PROBLEMS. AS THE DOSE OF
12 MEDICATIONS WAS INCREASED ON AND AROUND DECEMBER 30TH THE
13 NURSING NOTES WOULD INCREASE -- WOULD INDICATE AN INCREASE
14 IN SLEEPINESS AND THE DEPRESSANT EFFECTS OF THESE MEDICINES.
15 SLEPT ON AND OFF MOST OF THE AFTERNOON. THOSE SORTS OF
16 NOTES BEGAN TO APPEAR ABOUT THAT TIME.
17 Q. ABOUT WHAT TIME WAS THAT?
18 A. THIS WAS ABOUT TEN DAYS INTO HER HOSPITALIZATION.
19 Q. OKAY. NOW, DO THOSE SIGNS OR SYMPTOMS, REFLECTED IN THE
20 NURSING NOTES, DO THEY CHANGE IN ANY WAY?
21 A. AS THE MEDICATION DOSES CONTINUE TO GO UP, AS THEY BEGAN
22 TO DO AT ABOUT THAT TIME, THERE BEGAN TO BE SOME PRETTY GOOD
23 DOSE INCREASES. THEN, FOR INSTANCE, ON JANUARY 2ND SHE'S
24 NOT EATING, SHE'S VERY DROWSY, STILL HAVING SOME AGGRESSIVE
25 BEHAVIOR. BUT, AGAIN, DEFINITELY SHOWING SIGNS IN THE OTHER
2592
1 DIRECTION. BY THIS TIME HER DOSES OF MEDICATION HAD BEEN
2 INCREASED QUITE A BIT.
3 ON JANUARY 3RD SHE'S DESCRIBED AS VERY DROWSY. DID NOT
4 EAT DINNER DUE TO LETHARGIC STATE. AND THEN GAVE HALDOL
5 I.M. NOT TAKING MEDS. I THINK THAT WAS BECAUSE SHE WAS
6 DROWSY.
7 MR. STIRBA: I'M NOT SO SURE WHAT THE QUESTION IS,
8 IF THERE'S A PENDING QUESTION. ALSO, I THINK IN FAIRNESS --
9 MR. WILSON: I THINK HE WAS DESCRIBING THE SIGNS OR
10 SYMPTOMS THAT HE SAW AS WE PROGRESSED THROUGH THIS TIME
11 PERIOD.
12 THE COURT: GO AHEAD AND PROCEED WITH ANOTHER
13 QUESTION.
14 Q. (BY MR. WILSON) YOU INDICATED HALDOL I.M. AND WHAT
15 DATE WAS THAT?
16 A. JANUARY 3RD.
17 Q. JANUARY 3RD. I'M TRYING TO LOOK AT THE CHART HERE. CAN
18 YOU COMMENT ON THE DOSAGE OF HALDOL THAT WAS ADMINISTERED ON
19 THAT DAY?
20 A. FIVE MILLIGRAMS WAS GIVEN TWICE ON THAT DAY.
21 Q. WHAT WOULD BE THE NORMAL DOSAGE?
22 MR. STIRBA: I'LL OBJECT. THAT'S CUMULATIVE. HE'S
23 HERE AS A PAIN EXPERT, NOT ON PSYCHOTROPICS.
24 THE COURT: LET'S GO ON.
25 MR. WILSON: YOUR HONOR, HE'S TESTIFIED AS TO THE
2593
1 SEDATING SIDE EFFECTS OF THAT PARTICULAR DRUG. I WANT TO
2 FIND OUT, IN TERMS OF THE DOSAGE THAT WAS ADMINISTERED ON
3 THAT DATE, AS TO ITS POTENTIAL FOR SEDATING SIDE EFFECTS.
4 MR. STIRBA: BUT IT'S ALREADY BEEN TESTIFIED TO.
5 THE COURT: OKAY. I'LL LET YOU ASK THAT QUESTION,
6 BUT WE HAD DR. FEHLAUER HERE FOR A DAY AND A HALF GOING
7 THROUGH THE SAME THING.
8 Q. (BY MR. WILSON) AS TO THE POTENTIAL SIDE EFFECTS OF
9 HALDOL ADMINISTERED IN THAT AMOUNT, WHAT IS THE POTENTIAL
10 FOR SEDATING SIDE EFFECTS?
11 A. IT'S A LARGE DOSE AND IT WOULD HAVE VERY SIGNIFICANT
12 POTENTIAL FOR SEDATING SIDE EFFECTS.
13 Q. OKAY. GOING ON NOW TO JANUARY 7TH, I THINK, WAS
14 MORPHINE ADMINISTERED ON THAT PARTICULAR DAY?
15 A. YES, IT WAS.
16 Q. DO YOU RECALL WHEN THE MEDICAL RECORDS INDICATE IT WAS
17 FIRST ADMINISTERED?
18 A. THE FIRST DOSE, MORPHINE FIVE MILLIGRAMS I.M., WAS
19 ORDERED ON AN EVERY THREE HOUR BASIS. THE FIRST DOSE WAS
20 GIVEN AT NINE O'CLOCK IN THE EVENING.
21 Q. OKAY. CAN YOU TELL US, DOCTOR, WERE THERE ANY
22 INDICATIONS IN THE MEDICAL RECORDS THAT YOU OBSERVED OF ANY
23 SIGNS OR SYMPTOMS OF PAIN ON THAT PARTICULAR DATE, JANUARY
24 THE 7TH?
25 A. NO. ON THE CONTRARY, THE PATIENT IS DESCRIBED AS
2594
1 MINIMALLY RESPONSIVE, NOT ABLE TO TAKE MEDS, LETHARGIC,
2 UNRESPONSIVE, NOT SWALLOWING, NOT TAKING ANYTHING BY MOUTH,
3 NO WET DIAPERS. SO THE PATIENT APPEARS TO BE HEAVILY
4 SEDATED AND PROBABLY DEHYDRATED AT THAT POINT.
5 Q. CAN YOU TELL US WHETHER OR NOT YOU SAW ANYTHING IN
6 THAT -- ON JANUARY THE 7TH OR JANUARY THE 6TH WHICH WOULD
7 INDICATE TO YOU THAT THIS PATIENT WAS IN A TERMINAL STATE?
8 A. THERE SEEMED TO BE NO CLEAR CHANGE IN HER MEDICAL
9 CONDITION. NOTHING NEW THAT WOULD SUGGEST AN ACUTE CHANGE
10 IN HER CONDITION THAT WOULD CAUSE HER TO BE IN A TERMINAL
11 STATE. !!!
12 Q. OKAY. ON JANUARY THE 8TH WAS THERE FURTHER MORPHINE
13 GIVEN?
14 A. YES, THERE WAS. SHE RECEIVED -- CONTINUED TO RECEIVE
15 THE FIVE MILLIGRAMS ON A REGULAR SCHEDULE. AND THEN ALSO
16 SHE RECEIVED SEVERAL 10 MILLIGRAM DOSES.
17 Q. WHEN WAS THE LAST SHOT ADMINISTERED OF MORPHINE?
18 A. IT APPEARS THAT IT WAS ADMINISTERED ABOUT NOON.
19 Q. OKAY. CAN YOU TELL US WHEN THE PATIENT DIED?
20 A. IT STATES IN THE NOTES THAT AT 12:45, AND THIS IS A
21 NURSING NOTE, THE DAUGHTER REQUESTED I CHECK PATIENT.
22 QUOTE, I DON'T THINK SHE'S BREATHING, END OF QUOTE. THE
23 PATIENT WAS PRONOUNCED DEAD.
24 Q. AGAIN, BASED UPON YOUR EXPERIENCE, YOUR TRAINING AND
25 EXPERTISE AND YOUR REVIEW OF THE MEDICAL RECORDS, HAVE YOU
2595
1 FORMED AN OPINION, BASED TO A REASONABLE DEGREE OF MEDICAL
2 CERTAINTY, AS TO THE CAUSE OF DEATH OF LYDIA SMITH?
3 A. YES, I HAVE.
4 Q. OKAY. WOULD YOU TELL US WHAT THAT OPINION IS, SIR?
5 A. I BELIEVE THAT ULTIMATELY SHE DIED BECAUSE OF EXCESSIVE
6 MORPHINE. BUT I BELIEVE SHE WAS PUT INTO A WEAKENED
7 STATE --
8 MR. STIRBA: EXCUSE ME. YOUR HONOR, IF HE'S GOING
9 TO TESTIFY AS TO CAUSE OF DEATH, HE'S TESTIFIED TO IT. IF
10 THERE'S ANOTHER QUESTION COUNSEL WANTS TO PUT, THAT'S FINE.
11 Q. (BY MR. WILSON) I'LL ASK YOU THIS, DOCTOR. WAS THERE
12 ANY CONTRIBUTING FACTOR TO HER CAUSE OF DEATH OTHER THAN THE
13 MORPHINE?
14 A. I BELIEVE THE CONTINUED ESCALATING DOSES OF SEDATING
15 MEDICATION THROUGH HER HOSPITAL COURSE CAUSED HER TO BE
16 DEHYDRATED; CAUSED A DECREASE IN NUTRITIONAL STATUS; CAUSED
17 CHANGES IN HER OTHER BODILY FUNCTIONS TO WHERE THE MORPHINE
18 WAS ABLE TO CAUSE DEATH IN THIS PATIENT.
19 Q. THANK YOU. I SHOW YOU WHAT IS MARKED AS STATE'S EXHIBIT
20 35, WHICH PURPORTS TO BE A CHART FOR THE PATIENT ENNIS
21 ALLDREDGE. HAVE YOU REVIEWED THAT PARTICULAR EXHIBIT, SIR?
22 A. YES, I HAVE.
23 Q. OKAY. I TAKE IT YOU'VE ALSO HAD AN OPPORTUNITY TO
24 REVIEW MR. ENNIS'S MEDICAL RECORDS?
25 A. I HAVE.
2596
1 Q. AND DID YOU HAVE OCCASION TO REVIEW ANY RECORDS RELATIVE
2 TO HIS NURSING HOME RECORDS, PRIOR TO HIS ADMISSION INTO THE
3 GERO-PSYCH UNIT?
4 A. YES, I DID.
5 Q. CAN YOU TELL US, SIR, AT THE TIME OF ADMISSION TO THE
6 GERO-PSYCH UNIT WHETHER OR NOT MR. ALLDREDGE WAS, IN YOUR
7 OPINION, SUFFERING FROM ANY SIGNS OR SYMPTOMS RELATED TO
8 PAIN?
9 A. THERE SEEMED TO BE NO INDICATION IN THE RECORD THAT HE
10 HAD ANY PAIN PROBLEMS.
11 Q. CAN YOU TELL US, SIR, WHETHER OR NOT THERE WAS ANY
12 INDICATION IN THE MEDICAL RECORD AS TO WHETHER MR. ALLDREDGE
13 WAS SUFFERING FROM ANY KIND OF TERMINAL CONDITION?
14 A. HE DID NOT SEEM TO HAVE ANY ACUTE MEDICAL CONDITIONS
15 THAT WOULD -- HE SEEMED TO BE QUITE STABLE MEDICALLY.
16 Q. NOW, IN YOUR REVIEW OF THE PARTICULAR EXHIBIT ON THE
17 BOARD AND THE RECORDS BEFORE YOU, CAN YOU TELL US WHAT TYPE
18 OF MEDICATIONS HE RECEIVED IN THE CONTEXT OF HIS MEDICAL
19 CARE AND TREATMENT AT THE GERO-PSYCH UNIT?
20 A. YES. MR. ALLDREDGE RECEIVED RISPERDAL. AGAIN, A --
21 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. IT'S
22 ALREADY BEEN TESTIFIED TO ONCE. HE WAS ASKED WHAT
23 MEDICATIONS HE WAS GIVEN. IF HE WANTS TO POINT TO THE
24 LITTLE PILL AND TELL US, HE CAN TELL US.
25 THE COURT: I THINK WE HAD, DOCTOR, SO YOU
2597
1 UNDERSTAND, THE LAST WITNESS WENT THROUGH ALL OF THAT. IF
2 YOU JUST WANT TO ANSWER THE QUESTION. THEY'VE EXPLAINED THE
3 CHART BEFORE. SO IF YOU WANT TO SAY, IN ANSWER TO HIS
4 QUESTION, WHAT MEDICATIONS THEY WERE ON, I THINK THAT WAS
5 THE QUESTION.
6 Q. (BY MR. WILSON) WHAT MEDICATIONS DID HE RECEIVE?
7 A. I'M SORRY. I WAS AFRAID THE JURY WOULDN'T BE ABLE TO
8 SEE EXACTLY WHAT WE WERE TALKING ABOUT. I WAS TRYING TO
9 POINT IT OUT.
10 Q. HE WAS PLACED ON A REGIMEN OF MEDICATIONS, IS THAT
11 CORRECT?
12 A. YES, HE WAS.
13 Q. WHAT DID THAT REGIMEN INCLUDE?
14 A. WELL, IN ADDITION -- I MEAN, HE WAS ON SOME MEDICATIONS
15 FOR OTHER MEDICAL PROBLEMS, BUT HE WAS PLACED ON RISPERDAL,
16 TRAZODONE, ATIVAN, HALDOL.
17 Q. OKAY. DO ALL OF THESE MEDICATIONS HAVE A CENTRAL
18 NERVOUS SYSTEM DEPRESSANT SIDE EFFECT?
19 A. YES.
20 Q. OKAY. CAN YOU COMMENT TO US AS TO THE AMOUNTS OF ANY OF
21 THOSE MEDICATIONS THAT WERE ADMINISTERED, THE DOSAGE
22 AMOUNTS?
23 A. THESE ARE ALL GIVEN IN LARGE DOSES, OR ALL ORDERED IN
24 LARGE DOSES AND SUBSEQUENTLY GIVEN.
25 Q. WE NOTE IN THE GRAPH ITSELF THAT THERE'S A CHANGE,
2598
1 APPARENTLY, AN EVENT THAT TOOK PLACE IN MR. ALLDREDGE'S
2 CONDITION, IS THAT CORRECT?
3 A. WELL, THERE WAS AN EVENT THAT OCCURRED, YES.
4 Q. CAN YOU TELL ME, BASED UPON YOUR REVIEW OF THE RECORDS,
5 EXTENDING FROM JANUARY 10TH THROUGH JANUARY 12TH, WERE THERE
6 ANY INDICATIONS IN THE RECORD OF ANY SIGNS OR SYMPTOMS OR
7 COMPLAINTS OF PAIN?
8 A. NO.
9 Q. WERE THERE ANY INDICATIONS THAT THIS -- THAT WOULD
10 RELATE TO SIGNS OR SYMPTOMS THAT THE INDIVIDUAL WAS
11 SUFFERING FROM ANY KIND OF TOXIC SIDE EFFECTS FROM THE
12 SEDATING DRUGS?
13 A. YES. VERY EARLY ON IN HIS COURSE, ON THE DAY OF
14 ADMISSION IN FACT, BEFORE THE MEDICAL CONSULTANT COULD EVEN
15 EVALUATE MR. ALLDREDGE, HE RECEIVED A DOSE OF ATIVAN AND
16 HALDOL. HE WENT FROM A VERY ACTIVE AGITATED STATE ON
17 ADMISSION TO WHAT WAS DESCRIBED AS LETHARGIC AND
18 UNRESPONSIVE. SO A VERY DRAMATIC CHANGE EVEN AT THE TIME
19 HE'D BARELY BEEN ADMITTED.
20 THE RECORDS THEN CONTINUED TO SHOW SOME PERIODS OF
21 AGITATION, BUT THEN SOME PERIODS OF SIGNIFICANT SOMNOLENCE.
22 Q. THROUGH THAT TIME PERIOD?
23 A. YES. NOT EATING, SO ON.
24 Q. ALL RIGHT. ON THE 13TH, WAS MORPHINE ADMINISTERED ON
25 THAT PARTICULAR DAY?
2599
1 A. YES, IT WAS.
2 Q. DO YOU KNOW WHEN IT WAS STARTED?
3 A. THE FIRST DOSE WAS AT ELEVEN O'CLOCK IN THE MORNING.
4 Q. DO YOU KNOW WHAT THE ORDER WAS FOR MORPHINE ON THAT
5 PARTICULAR DATE?
6 A. MORPHINE WAS ORDERED AT 10 MILLIGRAMS INTERMUSCULAR DOSE
7 EVERY THREE HOURS. A LARGE DOSE AND FREQUENT DOSE.
8 Q. TEN MILLIGRAMS EVERY THREE HOURS?
9 A. YES.
10 Q. YOU PREVIOUSLY TESTIFIED, I THINK, THAT THE EVERY THREE
11 HOURS CAUSES A BUILD UP OF THE MORPHINE IN THE SYSTEM?
12 A. YES. Same as above.
13 Q. SO WOULD THAT HAVE OCCURRED, IN YOUR OPINION, ON THIS
14 PARTICULAR OCCASION?
15 A. YES, IT WOULD HAVE. He fails to clarify that it would stabilize, slightly higher.
16 Q. DID YOU SEE SIGNS OR SYMPTOMS ON JANUARY 13TH WHICH Unbelievable.
17 WOULD INDICATE TO YOU THAT THIS INDIVIDUAL WAS SUFFERING ANY
18 PAIN?
19 A. NO, I DID NOT. Signs and symptoms of pain>>
20 Q. OKAY. DID YOU SEE ANY SIGNS OR SYMPTOMS WHICH WOULD
21 INDICATE TO YOU THAT THE INDIVIDUAL WAS IN FACT TERMINAL AT
22 THAT TIME?
23 A. I DID NOT.
24 Q. DID HE CONTINUE TO RECEIVE THE MORPHINE?
25 A. HE DID. ALONG WITH ATIVAN.
2600
1 Q. NOW, THE ATIVAN, WAS THAT INTRODUCED INTERMUSCULARLY OR
2 HOW?
3 A. YES, IT WAS. ON THE SAME SCHEDULE AS THE MORPHINE.
4 Q. WAS THERE ANY OTHER MEDICATIONS THAT WERE GIVEN TO HIM
5 DURING THIS TIME PERIOD, JANUARY 13TH AND 14TH?
6 A. HE RECEIVED A SMALL AMOUNT OF INSULIN, LESS THAN HIS
7 USUAL DOSE.
8 Q. DID HE SUBSEQUENTLY EXPIRE?
9 A. YES, HE DID.
10 Q. AND WHEN DID THAT TAKE PLACE, SIR?
11 A. AT ABOUT 9:30 IN THE MORNING ON JANUARY 14TH.
12 Q. ON JANUARY THE 14TH DID HE EXHIBIT ANY KINDS OF SIGNS OR
13 SYMPTOMS THAT RELATED TO TOXICITY OF MORPHINE?
14 A. YES. THE SIGNS WERE QUITE DRAMATIC. THE PATIENT HAD
15 PERIODS OF NOT BREATHING, UP TO 30 SECONDS INITIALLY. AND
16 EVENTUALLY HE WAS HAVING EVEN MUCH LONGER PERIODS. 60
17 SECOND PERIODS, 80 SECOND PERIODS WITHOUT BREATHING. A
18 DRAMATIC RESPIRATORY DEPRESSION, WHICH COULD BE ATTRIBUTED
19 TO THE MORPHINE.
20 Q. OKAY. DOCTOR, BASED UPON YOUR REVIEW OF THE MEDICAL
21 RECORDS, YOUR TRAINING AND EXPERTISE, HAVE YOU FORMED AN
22 OPINION, TO A REASONABLE DEGREE OF MEDICAL CERTAINTY, AS TO
23 THE CAUSE OF DEATH OF ENNIS ALLDREDGE?
24 A. YES.
25 Q. AND WHAT IS THAT OPINION, SIR?
2601
1 A. I BELIEVE THAT MR. ALLDREDGE DIED FROM MORPHINE
2 OVERDOSE.
3 Q. OKAY. WAS THERE ANY OTHER CONTRIBUTING FACTOR TO THAT
4 DEATH?
5 A. UMM, IT APPEARED -- THERE ARE NOTES INDICATING THAT HE
6 WAS PROBABLY DEHYDRATED. HE WAS HEAVILY SEDATED WITH OTHER
7 MEDICATIONS. HE WAS CONCOMITANTLY RECEIVING ATIVAN ALONG
8 WITH THE MORPHINE. THAT NO DOUBT ACCENTUATED THE EFFECTS OF
9 THE MORPHINE.
10 MR. WILSON: OKAY. IF I MAY HAVE A MOMENT, YOUR
11 HONOR?
12 THE COURT: YES.
13 (PAUSE IN THE PROCEEDINGS.)
14 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
15 HONOR.
16 THE COURT: OKAY. THANK YOU. LADIES AND
17 GENTLEMEN, I THINK WHAT WE'LL DO IS END FOR TODAY. WE
18 STARTED AT EIGHT AND WENT UNTIL 4:30 INSTEAD OF OUR NORMAL
19 8:30 TO FIVE. I THINK THIS IS A GOOD TIME TO CHANGE BEFORE
20 CROSS-EXAMINATION OF THIS WITNESS.
21 I WANT TO THANK YOU AGAIN FOR YOUR TIMELINESS. YOU'VE
22 BEEN HERE EVERY TIME THAT WE'VE ASKED YOU TO BE HERE ON
23 TIME. YOU'VE ALL BEEN ALERT. I APPRECIATE THAT.
24 I THINK WE'RE AHEAD OF SCHEDULE. I THINK THAT WE'RE AT
25 THE END OF OUR THIRD WEEK, WHERE JURY SELECTION STARTED ON
2602
1 THE 5TH OF JUNE. I THINK, EVEN THOUGH WE'RE HALFWAY THERE
2 TIMEWISE, I THINK WE'RE MORE THAN HALFWAY DONE WITH THE
3 CASE.
4 BEFORE YOU LEAVE I WANT YOU TO REMEMBER THAT IT IS YOUR
5 DUTY NOT TO CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR
6 ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON ON THE
7 SUBJECT OF THIS TRIAL. IT'S YOUR DUTY NOT TO FORM OR
8 EXPRESS AN OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO
9 YOU AFTER YOU'VE HEARD ALL THE EVIDENCE.
10 AGAIN, PLEASE DON'T LOOK AT ANY RADIO, TELEVISION, NEWS
11 REPORTS OR NEWSPAPER OR MAGAZINE REPORTS REGARDING THIS
12 TRIAL. LEARN EVERYTHING ABOUT THE TRIAL ONLY IN THE
13 COURTROOM.
14 WE'LL SEE YOU MONDAY AT 8:30. I HOPE YOU HAVE A GOOD
15 WEEKEND.
16 (JURY LEFT THE COURTROOM.)
17 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
18 HAS LEFT THE COURTROOM. CAN YOU SAY, MR. STIRBA, HOW MUCH
19 TIME YOU ANTICIPATE ON CROSS-EXAMINATION WITH THIS WITNESS?
20 MR. STIRBA: I WOULD THINK ABOUT AN HOUR, YOUR
21 HONOR.
22 THE COURT: OKAY. AND THEN WHO WOULD BE YOUR NEXT
23 WITNESS?
24 MR. WILSON: DR. CROOKSTON.
25 THE COURT: HOW LONG WOULD YOU ANTICIPATE HE WILL
2603
1 BE?
2 MR. WILSON: I WOULD ANTICIPATE HE WILL BE SHORTER
3 THAN DR. HARE.
4 THE COURT: OKAY.
5 MR. WILSON: PROBABLY A COUPLE OF HOURS, YOUR
6 HONOR.
7 THE COURT: I THINK DR. HARE ON DIRECT WAS LESS
8 THAN TWO AND A HALF. THAT'S THE WAY I FIGURED IT. AND THEN
9 DID YOU SAY YOU MIGHT HAVE SOME OTHER WITNESSES AFTER THAT?
10 MR. WILSON: WE MIGHT, YOUR HONOR, BUT THEY WOULD
11 NOT AMOUNT TO MUCH TESTIMONY.
12 THE COURT: WHO WOULD THEY BE?
13 MR. WILSON: WELL, I STILL HAVEN'T DETERMINED
14 WHETHER TO RECALL OFFICER MORRISON RELATED TO AN EXHIBIT.
15 THERE IS AN OBJECTION TO THAT EXHIBIT. I DON'T KNOW WHETHER
16 WE CAN GET IT WORKED OUT OR NOT.
17 THE COURT: OKAY.
18 MR. WILSON: THERE MIGHT BE A NECESSITY TO RECALL
19 SHEILA HEWARD BACK TO THE STAND.
20 THE COURT: ALL RIGHT. IS THERE ANYTHING ELSE WE
21 NEED TO DISCUSS?
22 MR. STIRBA: THERE IS ONE LITTLE SCHEDULING MATTER.
23 WE ANTICIPATE A MOTION AT SOME POINT AT THE CLOSE OF THE
24 STATE'S CASE. WE'D LIKE SOME TIME TO ARGUE THAT, BECAUSE I
25 DON'T THINK IT'S IN THE NATURE OF YOUR PERFUNCTORY MOTION.
2604
1 SO IF THE COURT COULD CONSIDER THAT, I'D APPRECIATE IT IN
2 TERMS OF SCHEDULING.
3 THE COURT: THAT'S WHAT I'M TRYING TO FIGURE OUT.
4 YOU THINK MAYBE A COUPLE OF HOURS ON DIRECT WITH DR.
5 CROOKSTON?
6 MR. WILSON: I THINK THERE'S A POSSIBILITY. IF WE
7 TAKE AN HOUR WITH DR. HARE ON CROSS --
8 THE COURT: AND ANY REDIRECT.
9 MR. WILSON: ANY REDIRECT WOULD PROBABLY BE SHORT,
10 YOUR HONOR. I WOULD ANTICIPATE THERE'S A GOOD POSSIBILITY
11 WE COULD CONCLUDE BY NOON.
12 THE COURT: OKAY. IS THAT SOMETHING YOU WANT TO
13 THEN HAVE THE JURY GO HOME, EVEN IF WE WENT A LITTLE LONGER,
14 MAYBE 12:30 OR ONE TO GET THE TESTIMONY IN, THEN WE WOULD
15 HAVE THE AFTERNOON FOR THE ARGUMENT?
16 MR. STIRBA: THAT WOULD BE FINE WITH ME. THEN
17 START TUESDAY MORNING. THAT WOULD BE HELPFUL, YOUR HONOR.
18 MR. WILSON: I GUESS IT DEPENDS, IF YOU ANTICIPATE
19 FILING A MOTION, WHEN WOULD WE EXPECT TO RECEIVE THAT MOTION
20 SO WE CAN RESPOND TO IT APPROPRIATELY?
21 MR. STIRBA: WELL, YOU KNOW WHAT THE MOTION IS.
22 WE'RE GOING TO DO A MEMORANDUM ON IT. IT'S CERTAINLY NOT
23 FINISHED. I'LL TRY TO GET IT TO YOU AS SOON AS WE CAN GET
24 IT COMPLETED.
25 MR. WILSON: I MAY KNOW THAT THERE'S A MOTION TO
2605
1 DISMISS FOR A PRIMA FACIA CASE.
2 MR. STIRBA: YES, THAT'S WHAT I'M TALKING ABOUT. I
3 DON'T KNOW OF ANY OTHER ONE I COULD FILE AT THIS POINT.
4 MR. WILSON: I WASN'T AWARE OF THAT TO BEGIN WITH.
5 THE COURT: I'M NOT ASKING FOR ANY MORE MOTIONS
6 MYSELF. I'VE REACHED MY LIMIT ON THE NUMBER OF MOTIONS.
7 I THINK ONE OF THE THINGS THAT WE NEED TO DISCUSS, TOO,
8 IS JUST TO SAY I THINK WE'VE HAD A LOT OF WITNESSES THAT
9 HAVE ALREADY DESCRIBED THINGS LIKE, YOU KNOW, TITRATION,
10 HALF LIFE, THINGS LIKE THAT. SO I THINK WHEN WE HAVE OTHER
11 WITNESSES WE DON'T NEED TO HAVE THEM REPEAT THAT.
12 I THINK THE OTHER THING -- WELL, I THINK THAT'S ABOUT
13 ALL. I THINK WE CAN JUST START RIGHT AT 8:30. HOPEFULLY
14 WE'LL BE DONE. I THINK, BASED ON WHAT YOU'RE SAYING, WE
15 SHOULD BE DONE BEFORE NOON OR ONE O'CLOCK, I WOULD THINK.
16 THEN WE CAN DECIDE WHERE TO GO FROM THERE.
17 IF THERE IS ANYTHING IN WRITING? THE EARLIER YOU CAN
18 GET THAT TO THEM THE BETTER.
19 MR. STIRBA: I'LL DO THAT, JUDGE.
20 THE COURT: ALL RIGHT. WE WILL BE IN RECESS UNTIL
21 8:30 ON MONDAY.
22 (EVENING RECESS AT 4:30 P.M.)
23
24
25
2606
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3
*****
4 ______________________________
)
5 STATE OF UTAH, )
)
6 PLAINTIFF, )
)
7 ) REPORTER'S TRANSCRIPT
VS. )
8 ) CASE NO. 991700983
ROBERT ALLEN WEITZEL, )
9 )
DEFENDANT. )
10 ______________________________)
11 *****
12 TRIAL VOLUME 12 OF 21
13 JUNE 26, 2000
14 HONORABLE THOMAS L. KAY
15
*****
16
17 APPEARANCES:
18 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
19 MS. CHARLENE BARLOW
20
FOR THE DEFENDANT: MR. PETER STIRBA
21 MR. JOHN WARREN MAY
22
23
24
25
To skip past a long, non-testimony section, click here. 2607
1 (WHEREUPON, THE MORNING SESSION BEGINS IN CHAMBERS.)
2 THE COURT: OKAY. WE ARE ON THE RECORD. IT'S
3 JUNE 26TH, MONDAY, AND ALL COUNSEL ARE PRESENT, THE
4 DEFENDANT IS PRESENT, THE COURT REPORTER IS PRESENT.
5 MR. WILSON: THANK YOU, YOUR HONOR. I ASKED TO
6 HAVE AN OPPORTUNITY TO MEET WITH YOU IN CHAMBERS. AND I'M
7 REALLY UNCOMFORTABLE IN ADDRESSING THIS, BUT LAST FRIDAY
8 EVENING WE WERE CONTACTED -- OUR OFFICE WAS CONTACTED AND WE
9 WERE ADVISED THAT THERE WERE A NUMBER OF PEOPLE WHO HAD
10 OBSERVED YOUR HONOR PLAYING CATCH WITH ONE OF OUR JURORS,
11 APPARENTLY OUTSIDE THE PREMISES OF THE COURTHOUSE HERE. AND
12 SO I -- WE'VE BEEN THINKING ABOUT THAT AND WE DID A LITTLE
13 BIT OF RESEARCH TO SEE WHAT NEEDED TO BE DONE IN A CASE OF
14 THIS NATURE. THOSE TYPES OF ISSUES CAN GIVE RISE TO SOME
15 APPEAL ISSUES, SO WE, IN REVIEWING THE CASE LAW -- IT
16 APPEARS TO ME, JUDGE, THAT AN INQUIRY NEEDS TO BE DONE AND A
17 RECORD MADE AS TO THE NATURE OF THE CONTACT. AND AS I
18 UNDERSTAND THE CASE LAW, IT REQUIRES A FINDING THAT THERE IS
19 ESSENTIALLY NO BIAS OR PREJUDICE THAT HAS EVOLVED OUT OF THE
20 CONTACT.
21 THE COURT: UH-HUH.
22 MR. WILSON: AND, OF COURSE, WHERE IT INVOLVES THE
23 COURT ITSELF IN TERMS OF THE CONTACT, I THINK THAT WOULD
24 PROBABLY HAVE TO BE ADDRESSED BY ANOTHER JUDGE. AND I
25 DON'T -- I DON'T KNOW AS IT WOULD BE APPROPRIATE TO MAKE ANY
2608
1 KIND OF PROFFERS AT THIS STAGE AS TO WHAT THE NATURE OF THE
2 CONTACT WAS. I THINK THAT'S REALLY SOMETHING THAT NEEDS TO
3 BE LOOKED INTO BY -- BY THE COURT.
4 THE PROBLEM IT GIVES RISE TO IN MY MIND, YOUR HONOR, IS
5 THAT UNTIL WE CAN MAKE THAT KIND OF A RECORD, IT BECOMES --
6 I'M RETICENT OF GOING FORWARD WITH -- WITH THE BALANCE OF
7 OUR WITNESSES AT THIS TIME, AND SO I CALLED PETER THIS
8 MORNING. HE HASN'T HAD MUCH NOTIFICATION ON THIS.
9 I DON'T KNOW WHAT THEIR POSITION IS, BUT THE CASE LAW
10 SEEMS TO INDICATE THAT ANY -- WELL, I'LL JUST QUOTE FROM ONE
11 CASE, YOUR HONOR. IT'S LOGAN CITY VERSUS CARLSEN. AND IT
12 STATES THAT A REBUTTABLE PRESUMPTION OF PREJUDICE ARISES
13 FROM UNAUTHORIZED CONTACT DURING A TRIAL BETWEEN WITNESSES,
14 ATTORNEYS OR COURT PERSONNEL AND JURORS WHICH GOES BEYOND A
15 MERE INCIDENTAL, UNINTENDED, AND BRIEF CONTACT. WHEN THE
16 CONTACT IS MORE THAN INCIDENTAL, THE BURDEN IS ON THE
17 PROSECUTION TO PROVE THAT THE CONTACT -- UNAUTHORIZED
18 CONTACT DID NOT INFLUENCE THE JUROR.
19 SO IT APPEARS TO BE MY BURDEN ANYWAY, BUT I THOUGHT I
20 BETTER RAISE THE ISSUE AND -- AND SEE HOW THE COURT WANTED
21 TO PROCEED.
22 THE COURT: WELL, I'M MORE THAN HAPPY -- YOU KNOW,
23 I CAN TELL YOU EXACTLY WHAT HAPPENED, MORE THAN HAPPY TO
24 TELL YOU THAT. WE CAN GET JUDGE ALLPHIN, HE'S THE ASSOCIATE
25 PRESIDING JUDGE UNTIL JULY 1ST WHEN IT'S JUDGE HANSEN. WE
2609
1 CAN GET JUDGE ALLPHIN, YOU CAN GET THE JUROR -- IT'S THE
2 BALD JUROR. AND WE CAN GET HIM AND WE CAN GO RIGHT NOW, GET
3 JUDGE ALLPHIN, YOU CAN HAVE YOUR LITTLE HEARING. YOU CAN
4 BRING IN THE JUROR AND YOU CAN RESOLVE IT.
5 MR. WILSON: OKAY. APPRECIATE THAT.
6 THE COURT: I CAN TELL YOU THERE'S ABSOLUTELY
7 NOTHING. THE JURY SAW ME PLAYING OUT IN THE FIELD. I WAS
8 THROWING A BALL OUT BY MYSELF ON A -- I'M A BASEBALL PLAYER.
9 I'VE BEEN PLAYING WITH THE BAILIFF AND LAW CLERK. THAT
10 RELIEVES TENSION DURING THIS TRIAL. THE INDIVIDUAL JUROR
11 SAW ME OUT THERE PLAYING, SAYS, OH, I DON'T HAVE A GLOVE,
12 BUT I CAN PLAY CATCH. WE PLAYED CATCH, TALKED NOTHING ABOUT
13 THE CASE. WE TALKED ABOUT BASEBALL.
14 MR. WILSON: I APPRECIATE THAT, YOUR HONOR.
15 THE COURT: AND I'M MORE THAN HAPPY TO GET JUDGE
16 ALLPHIN HERE. I'M GOING TO CALL HIM RIGHT NOW -- UNLESS YOU
17 WANT TO CALL HIM -- AND LET'S GET THE JUROR DOWN.
18 MR. WILSON: I APPRECIATE YOU CALLING HIM.
19 THE COURT: WHILE YOU'RE ALL HERE, LET'S GET HIM.
20 WHAT'S HIS NUMBER?
21 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION
22 BETWEEN THE COURT AND THE LAW CLERK, MR. EDWARDS, AFTER
23 WHICH THE RECORD REFLECTS JUDGE KAY'S SIDE ONLY OF THE
24 TELEPHONE CONVERSATION WITH JUDGE ALLPHIN, AS FOLLOWS:)
25 THE COURT: JUDGE ALLPHIN, HOW ARE YOU DOING?
2610
1 OKAY. I'VE GOT ALL THE COUNSEL HERE, MEL WILSON, CHARLENE
2 BARLOW, STEVE MAJOR, THE COURT REPORTER, THE DEFENSE
3 COUNSEL, THE DEFENDANT, AND MIKE AND DAVE WILLIAMS, OUR
4 BAILIFF, ARE ALL IN HERE. THEY HAVE RAISED AN ISSUE HERE
5 THAT WE NEED TO ADDRESS AND THE ISSUE IS BASICALLY THIS.
6 NUMBER ONE, MR. WILSON HAS BROUGHT A -- TO THE COURT'S
7 ATTENTION AN ISSUE OF THERE WAS A JUROR THAT LAST WEEK HE
8 AND I PLAYED CATCH. I WAS PLAYING CATCH BY MYSELF, THROWING
9 A BALL OUT IN THE FIELD BEHIND THE JAIL. HE AND I PLAYED
10 CATCH. WE DID NOT SPEAK ABOUT ANYTHING.
11 THEY WANT TO HAVE A -- SOMEBODY ELSE HEAR THIS, TALK TO
12 THE JUROR TO SEE THERE'S NO BIAS OR PREJUDICE IN THEIR CASE.
13 THERE'S A CASE CALLED LOGAN CITY VERSUS CARLSEN.
14 AND I THINK RIGHT NOW THE JUROR IS GOING TO BE HERE.
15 ALL THE JURORS WERE SUPPOSED TO BE HERE AT 8:30. NOW, MY
16 CONCERN IS TAKING A JUROR OUT OF THERE AND THEN HAVE THE
17 JURY GONE FOR TWO HOURS OR AN HOUR AND COME BACK, HOW DO WE
18 DEAL WITH THAT? YOU KNOW, SO THEN THEY SAY WHAT'S THAT ALL
19 ABOUT?
20 WELL, I -- I ASSUME YOU'RE GOING TO HAVE TO TALK TO THE
21 JUROR AND SO -- BUT I'M JUST SAYING, IF YOU TAKE HIM OUT,
22 OUR JUROR MEMBERS, THE OTHERS ARE GOING TO BE SITTING THERE.
23 WE'VE GOT 11 MORE. SO HOW DO YOU WANT TO DEAL WITH THAT?
24 YEAH, THEY SHOULD ALL --
25 OKAY. YOU WANT TO DO IT RIGHT NOW IN YOUR COURTROOM?
2611
1 OKAY. WE HAVE THEM ALL BY NUMBER. THIS IS A -- HE'S A
2 BIG -- HE'S TWO OVER FROM THE FRONT. DO YOU REMEMBER -- I'M
3 JUST TRYING TO THINK IN MY MEMORY. WE HAVE THE OLDEST JUROR
4 ON THE RIGHT SIDE FRONT, THE SECOND ONE OVER -- HE'S THE
5 SECOND OR THIRD ONE. HE'S VERY EASY TO IDENTIFY. HE'S A
6 LARGE MAN WITH BALD --
7 MR. STIRBA: BALDISH.
8 THE COURT: -- BALD HEAD. OKAY. TO YOUR -- OKAY.
9 OKAY. THEN LET'S DO THAT THEN. I'LL TELL THEM, THE COURT
10 REPORTER, COUNSEL, EVERYONE JUST TO COME DOWN TO YOUR OFFICE
11 AND THEN YOU'LL GET THE JUROR. OKAY. LET'S DO THAT THEN.
12 ALL RIGHT.
13 (WHEREUPON, AT THIS TIME THE PHONE CONVERSATION ENDS.)
14 THE COURT: OKAY. HE DOESN'T HAVE ANYTHING TILL
15 9:00. HE SAYS HE CAN DO IT RIGHT NOW. SO HE SAYS EVERYBODY
16 JUST -- DO YOU KNOW WHERE HIS OFFICE IS? MIKE, WILL YOU
17 SHOW THEM WHERE HIS OFFICE IS? YOU CAN JUST GO DOWN THERE
18 AS WELL.
19 (WHEREUPON, AT THIS TIME PROCEEDINGS CONCLUDE IN
20 JUDGE KAY'S CHAMBERS AND CONTINUE IN JUDGE ALLPHIN'S
21 CHAMBERS, AS FOLLOWS:)
22 JUDGE ALLPHIN: IS EVERYONE HERE NOW EXCEPT YOUR
23 JUROR? LET'S PUT SOME THINGS ON THE RECORD BEFORE WE HAVE
24 HIM -- BEFORE WE BRING HIM IN. THIS IS A CONTINUATION OF
25 THE WEITZEL TRIAL. LET ME JUST INDICATE, I'M JUDGE MICHAEL
2612
1 ALLPHIN. JUDGE KAY HAS JUST CALLED ME AND INDICATED THAT
2 THERE WAS AN INCIDENT -- WHEN DID IT HAPPEN, COUNSEL?
3 MR. WILSON: WELL, I THINK MY INFORMATION -- AND
4 I'M -- I'M NOT TOTALLY CLEAR, YOUR HONOR, BECAUSE --
5 MR. MAJOR: IT WAS FRIDAY AFTERNOON.
6 MR. EDWARDS: JUDGE, I CAN TELL YOU.
7 JUDGE ALLPHIN: GO AHEAD.
8 MR. EDWARDS: IT WAS A WEEK AGO THIS PAST FRIDAY, I
9 DON'T KNOW THE DATE. I KNOW THAT BECAUSE I TOOK A DAY OFF
10 AND I WASN'T HERE TO PLAY BASEBALL WITH THE JUDGE.
11 JUDGE ALLPHIN: MR. WILSON, TELL ME WHAT IT IS THAT
12 HAS COME TO YOUR ATTENTION AND LET'S GO FROM THERE.
13 MR. WILSON: OKAY. IT WAS REPORTED FRIDAY
14 AFTERNOON AFTER THE CONCLUSION OF THE PROCEEDINGS RECESSED,
15 I WAS ADVISED THROUGH A THIRD PARTY THAT THERE HAD BEEN A
16 SITUATION WHERE A BAILIFF, AS I UNDERSTAND IT WAS BAILIFF
17 SUE CAMPBELL, SAW THE JUDGE OUT PLAYING CATCH WITH ONE OF
18 OUR JURORS. I WAS ALSO ADVISED LATER THAT THERE WERE TWO
19 OTHER PERSONNEL FROM THE JUVENILE COURT WHO OBSERVED THE
20 SAME SITUATION.
21 THAT WAS THE TOTALITY OF WHAT WE WERE ADVISED AT THAT
22 TIME. I THINK IT'S IMPORTANT THAT -- THAT'S THE REASON I
23 BROUGHT IT TO THE COURT'S ATTENTION TODAY. IN REVIEWING THE
24 CASE LAW IT APPEARS TO ME THAT OTHER THAN MERE INCIDENTAL
25 CONTACT, THERE HAS TO BE A RECORD MADE AND FINDINGS MADE BY
2613
1 THE COURT AS TO WHETHER OR NOT THE CONTACT ITSELF WOULD IN
2 ANY WAY BIAS OR PREJUDICE BOTH THE DEFENDANT AND THE STATE,
3 FOR THAT MATTER. AND I CAN CITE TO THE COURT THE CASE LAW
4 IN THAT RESPECT.
5 JUDGE ALLPHIN: OKAY. BEFORE YOU DO THAT, JUDGE
6 KAY OBVIOUSLY WAS CONFRONTED WITH THIS AND WHAT WAS HIS
7 RESPONSE REGARDING THAT?
8 MR. WILSON: WELL, HE -- I JUST -- JUST BARELY
9 TALKED TO HIM ABOUT IT. HE DID MAKE A RESPONSE THAT HE WAS
10 OUT THROWING THE BALL, THAT HE WAS PICKING IT UP HIMSELF AND
11 THROWING IT, AND THIS JUROR PULLED UP IN HIS CAR AND OFFERED
12 TO PARTICIPATE. AND THAT THERE WAS NO DISCUSSION OF THE
13 CASE OR ANYTHING ELSE, THEY JUST PLAYED CATCH, FROM THAT
14 STANDPOINT.
15 MR. MAJOR: HE DID INDICATE -- WHAT HE SAID WAS
16 THAT THERE WAS NO DISCUSSION OF THE CASE, THEY JUST TALKED
17 BASEBALL.
18 MR. WILSON: AND I DON'T KNOW, WE MAY NEED TO BRING
19 THE JUDGE IN AND HAVE HIM EXPLAIN THAT FOR THE RECORD, TOO.
20 JUDGE ALLPHIN: OKAY. MAYBE WHAT WE NEED TO DO IS
21 START WITH THE JUROR. ANYTHING ELSE WE NEED TO PUT ON THE
22 RECORD?
23 MR. STIRBA: WE HAVE NOTHING, JUDGE.
24 JUDGE ALLPHIN: ALL RIGHT. IT'S JUROR NUMBER?
25 MR. WILSON: I'M NOT SURE.
2614
1 MR. EDWARDS: I CAN FIGURE IT OUT.
2 JUDGE ALLPHIN: DO YOU KNOW -- WHEN YOU COME BACK,
3 LET'S MAKE SURE WE IDENTIFY WHICH NUMBER. THEY JUST KNOW
4 HIM BY SIGHT, IS THAT WHAT IT IS?
5 (MR. EDWARDS LEAVES JUDGE ALLPHIN'S CHAMBERS
6 MOMENTARILY.)
7 JUDGE ALLPHIN: THIS IS PROBABLY A FIRST IN THE
8 STATE OF UTAH.
9 MR. WILSON: I THINK THIS TRIAL IS A FIRST IN THE
10 STATE OF UTAH.
11 MR. EDWARDS: IT'S JUROR NUMBER 7.
12 JUDGE ALLPHIN: OKAY. WHY DON'T YOU PULL THIS
13 CHAIR OUT A LITTLE BIT SO WE CAN ALL SEE HIM OVER THERE.
14 THAT'S FINE.
15 (JUROR 7 ENTERS JUDGE ALLPHIN'S CHAMBERS AT THIS TIME.)
16 JUDGE ALLPHIN: COME IN, SIR, AND HAVE A SEAT.
17 JUROR NUMBER 7; IS THAT RIGHT?
18 JUROR 7: CORRECT.
19 JUDGE ALLPHIN: I'M JUDGE ALLPHIN. WE APPRECIATE
20 YOU COMING. YOU'RE -- YOU'RE NOT ON THE HOT SEAT. YOU
21 DON'T NEED TO BE NERVOUS.
22 IT'S COME TO OUR ATTENTION THAT THERE WAS AN
23 INTERCHANGE BETWEEN YOU AND JUDGE KAY OUT IN THE PARKING LOT
24 APPROXIMATELY A WEEK AGO AND WE'D JUST LIKE TO ASK YOU A
25 QUESTION ABOUT IT. ARE YOU THE JUROR THAT APPARENTLY THREW
2615
1 A BASEBALL BACK AND FORTH BETWEEN JUDGE KAY?
2 JUROR 7: YES, UH-HUH.
3 JUDGE ALLPHIN: ALL RIGHT. WOULD YOU LIKE TO TELL
4 US YOUR RECOLLECTION OF THAT, WHEN IT -- WHEN IT HAPPENED
5 AND HOW IT CAME ABOUT?
6 JUROR 7: WHAT DAY DID IT HAPPEN? I -- I REALLY
7 COULDN'T TELL YOU. I THINK IT WAS -- I WANT TO SAY IT WAS
8 WEDNESDAY, BUT I'M NOT SURE.
9 JUDGE ALLPHIN: OKAY. OKAY.
10 JUROR 7: BUT BASICALLY HE WAS PLAYING BASEBALL OUT
11 IN THE FIELD AND WE GOT BACK FROM LUNCH AND HE WAS PLAYING
12 BY HIMSELF AND I WENT AND GRABBED A GLOVE AND WE TOSSED A
13 BALL BACK AND FORTH. WE WERE TALKING ABOUT OUR SONS AND HE
14 ASKED ME IF I COACHED BASEBALL, THAT KIND OF STUFF. YOU
15 KNOW, JUST FRIENDLY TALK. I HAVE A 17-YEAR-OLD SON. I
16 COACH LITTLE LEAGUE AND HE WAS TELLING ME HE COACHED LITTLE
17 LEAGUE AND WE TOSSED THE BALL ABOUT 15 MINUTES.
18 JUDGE ALLPHIN: ANY DISCUSSION AT ALL OF THIS CASE?
19 JUROR 7: NOT AT ALL.
20 JUDGE ALLPHIN: ANY DISCUSSION ABOUT OTHER LEGAL
21 MATTERS, HIS RESPONSIBILITY AS A JUDGE, ANY OF HIS
22 ACTIVITIES --
23 JUROR 7: NO.
24 JUDGE ALLPHIN: -- AS A MEMBER OF THE BENCH?
25 JUROR 7: NO.
2616
1 JUDGE ALLPHIN: BASEBALL?
2 JUROR 7: UH-HUH.
3 JUDGE ALLPHIN: MR. WILSON, DO YOU HAVE ANY
4 QUESTIONS OF JUROR NUMBER 7?
5 MR. WILSON: HOW LONG WERE YOU OUT THERE FOR? DO
6 YOU REMEMBER?
7 JUROR 7: I'LL SAY 15 MINUTES.
8 MR. WILSON: OKAY. AND DO YOU KNOW WHETHER ANY
9 OTHER JURORS OBSERVED YOU OUT PLAYING CATCH WITH THE JUDGE?
10 JUROR 7: A BUDDY, ROBERT -- I DON'T KNOW WHAT HIS
11 JUROR NUMBER IS. WE WENT TO LUNCH TOGETHER SO HE STOOD
12 THERE AND WATCHED US FOR ABOUT FIVE MINUTES AND WENT INSIDE.
13 MR. WILSON: DID HE PARTICIPATE AT ALL IN THE
14 CONVERSATIONS OR ANYTHING AT ALL OF THAT SORT?
15 JUROR 7: NO. I BELIEVE THERE WAS ONE -- ONE OF
16 THE BAILIFFS WAS THERE FOR A FEW MINUTES, 10 OR 15 MINUTES
17 WITH US.
18 MR. WILSON: ONE OF THE BAILIFFS WAS ALSO THERE?
19 JUROR 7: I DON'T KNOW HER NAME. SHE'S NOT PART OF
20 THIS TRIAL.
21 MR. WILSON: OKAY. WAS THERE ANY DISCUSSION ABOUT
22 PLAYING BASEBALL WITH THE JUDGE AFTERWARDS WITH ANY OF THE
23 OTHER JURORS?
24 JUROR 7: I KIDDED -- I TOLD THEM WE -- WHEN I WENT
25 BACK IN WE OUGHT TO BRING OUR GLOVES AND GET A BASEBALL TEAM
2617
1 GOING OR SOMETHING LIKE THAT, BUT IT WAS JUST A JOKE.
2 MR. WILSON: OKAY. ALL RIGHT. I APPRECIATE THAT.
3 I DON'T HAVE ANYTHING FURTHER.
4 JUDGE ALLPHIN: THANK YOU. MR. STIRBA, DO YOU HAVE
5 ANY QUESTIONS?
6 MR. STIRBA: JUST ONE.
7 IS THERE ANYTHING ABOUT THE -- THE CONTACT THAT WOULD
8 CAUSE YOU TO HAVE ANY DIFFICULTIES IN STILL WEIGHING THE
9 EVIDENCE IN THIS CASE --
10 JUROR 7: ABSOLUTELY --
11 MR. STIRBA: -- JUDGING IT FAIRLY BASED ON THE
12 EVIDENCE?
13 JUROR 7: I DON'T THINK SO. NOT AT ALL.
14 JUDGE ALLPHIN: ANYTHING ELSE?
15 MR. STIRBA: NO.
16 JUDGE ALLPHIN: WAS THERE ANY OTHER COMMENT BY
17 OTHER JURORS REGARDING THE FACT YOU TOSSED THE BALL WITH THE
18 JUDGE?
19 JUROR 7: I DON'T -- OTHER THAN MY JOKE ABOUT
20 BRINGING THE GLOVE, GETTING A GAME GOING OR SOMETHING, NO,
21 IT WAS ALL IN -- YOU KNOW, JUST LAUGHING.
22 JUDGE ALLPHIN: OKAY. WERE YOU ACQUAINTED WITH
23 JUDGE KAY BEFORE?
24 JUROR 7: NO.
25 JUDGE ALLPHIN: OKAY. WELL, WE'D APPRECIATE IT IF
2618
1 WHEN YOU GO BACK YOU WOULDN'T DISCUSS WITH THE OTHER MEMBERS
2 OF THE JURY WHAT'S TAKEN PLACE HERE.
3 JUROR 7: OKAY.
4 JUDGE ALLPHIN: WE -- WE OVER ALL WANT TO MAKE SURE
5 THAT THIS PROCESS IS FAIR. AND EVEN THOUGH PROBABLY IN MOST
6 OF OUR MINDS IT'S PURELY AN INNOCENT SITUATION, WHENEVER
7 THERE'S CONTACT -- I THINK THE JUDGE PROBABLY EXPLAINED TO
8 YOU INITIALLY NOT TO HAVE CONVERSATION WITH ANY OF THE --
9 THE PARTIES BECAUSE OF THE APPEARANCE. AND SO WHENEVER
10 THERE'S AN APPEARANCE, WE -- WE HAVE A RESPONSIBILITY TO
11 FOLLOW UP. AND AS WE SAID -- I THINK I SAID, FIRST OF ALL,
12 YOU'RE NOT IN ANY KIND OF TROUBLE OR IN THE HOT SEAT OR
13 ANYTHING. WE JUST WANT TO FOLLOW UP AND MAKE SURE THAT
14 THERE WAS NOTHING THAT HAPPENED INAPPROPRIATELY.
15 BUT THE MAIN THING I THINK IS THAT YOU DON'T GO BACK
16 NOW AND DISCUSS THIS WITH THE OTHER JURORS AND THEN GET THEM
17 TO THINKING AND IT JUST ADDS TO THE PROBLEMS.
18 JUROR 7: OKAY.
19 JUDGE ALLPHIN: ANYTHING ELSE, GENTLEMEN?
20 MR. WILSON: I HAVE NOTHING FURTHER.
21 MR. MAJOR: JUST ONE QUESTION. DID YOU HAVE YOUR
22 OWN BASEBALL GLOVE WITH YOU? YOU SAID YOU WENT AND GOT IT.
23 JUROR 7: NO, I THINK HE -- HE GAVE ME AN EXTRA
24 GLOVE. YOU'RE RIGHT. HE GAVE ME AN EXTRA GLOVE HE HAD IN
25 THE CAR. I WAS PLAYING WITH BARE HANDS FOR -- FOR A WHILE
2619
1 AND HE -- HE LOANED ME A GLOVE.
2 JUDGE ALLPHIN: JUDGE KAY IS AN AVID BASEBALL FAN
3 AND IF YOU -- YOU OBVIOUSLY WOULDN'T HAVE, BUT ANYONE WHO'S
4 EVER BEEN IN HIS CHAMBERS OR GETS TO TALK TO HIM JUST ABOUT
5 ANYTHING, IT ALWAYS GOES TO BASEBALL. HE'S A VERY ARDENT
6 BASEBALL FAN.
7 THANK YOU VERY MUCH. WE APPRECIATE YOU COMING.
8 JUROR 7: SURE.
9 JUDGE ALLPHIN: WOULD YOU ASK JUDGE KAY TO COME
10 DOWN, PLEASE?
11 MR. WILSON: WHAT WAS HIS NUMBER AGAIN?
12 MR. STIRBA: SEVEN.
13 MS. BARLOW: SEVEN.
14 (WHEREUPON, AT THIS TIME THERE'S A PAUSE IN PROCEEDINGS
15 AND JUDGE KAY ENTERS.)
16 JUDGE ALLPHIN: HELLO, JUDGE.
17 JUDGE KAY: HOW'S IT GOING?
18 JUDGE ALLPHIN: GREAT. RECORD SHOULD REFLECT THAT
19 JUDGE THOMAS KAY HAS JOINED US.
20 JUDGE, WE'VE HAD AN OPPORTUNITY TO DISCUSS THIS MATTER
21 WITH JUROR NUMBER 7 AND ASK HIM ANY QUESTIONS. I THINK IT
22 WOULD BE APPROPRIATE IF YOU'D JUST GIVE US YOUR RECOLLECTION
23 OF WHAT HAPPENED.
24 JUDGE KAY: OKAY. I THINK IT WAS -- I DON'T KNOW,
25 IT WAS A WEEK AGO FRIDAY, I BELIEVE. AND DURING THE
2620
1 TRIAL -- EVERYBODY KNOWS THIS IS A STRESSFUL TRIAL -- I
2 RELIEVE STRESS TWO WAYS. I SWING A BASEBALL BAT UP IN
3 LAYTON IN MY OFFICE; I PLAY CATCH. I ALWAYS HAVE TWO
4 BASEBALL GLOVES IN THE BACK OF MY CAR BECAUSE MY SON PLAYS
5 BASEBALL FOR BOUNTIFUL HIGH AND I PLAY WITH MIKE EDWARDS,
6 THE LAW CLERK. I PLAYED WITH SUE, THE FEMALE BAILIFF,
7 BECAUSE SHE IS A SOFTBALL PLAYER.
8 FRIDAY, I CAN'T REMEMBER WHAT -- NONE OF THEM WERE
9 AROUND. I WENT IN THIS FIELD BEHIND THE -- THE JAIL, AND I
10 JUST STARTED TAKING THE BALL AND THROWING IT, PICKING IT UP
11 AND THROWING IT JUST TO RELIEVE TENSION.
12 I -- JUROR NUMBER 7 -- I DON'T KNOW WHICH ONE -- HE'S
13 THE TALL, BALDHEADED GUY, BIG MAN, BALD HEAD. HE SITS ABOUT
14 THE SECOND IN THE FRONT ROW. HE DROVE UP WITH ANOTHER OLDER
15 MAN -- I CAN'T REMEMBER WHICH ONE. THEY SEEMED TO DRIVE
16 TOGETHER. AND HE SAYS, WHAT ARE YOU DOING? I SAYS, WELL,
17 I'M TRYING TO PLAY CATCH, BUT THERE'S NO ONE HERE. HE SAYS,
18 I DON'T HAVE A GLOVE, BUT HE SAYS, YOU KNOW, I COULD THROW
19 TO YOU. AND SO WE SAT RIGHT HERE AND THREW THE BALL BACK
20 AND FORTH.
21 HE WAS ASKING -- HE SAYS, WELL, WHY DO YOU LIKE
22 BASEBALL SO MUCH? AND WE TALKED, MAYBE PLAYED FOR 15 OR 20
23 MINUTES. I TOLD HIM HOW I STARTED PLAYING BASEBALL, THAT MY
24 DAD WAS MY LITTLE LEAGUE COACH AND THAT I'VE LOVED BASEBALL
25 SINCE I WAS EIGHT YEARS OLD. I'VE DONE IT WITH MY SON. AND
2621
1 HE'S A SCOUT LEADER AND WE TALKED ABOUT SCOUTING AND
2 BASEBALL AND HOW GOOD IT WAS TO HAVE GOOD COACHES AND GOOD
3 SCOUT LEADERS.
4 THERE WAS NOT A WORD SAID ABOUT THE CASE, NOT A WORD
5 SAID ABOUT ANYTHING. A COUPLE OF OTHER JURORS CAME BY AND
6 THEY SAID, WELL, CAN WE PLAY A GAME ON MONDAY, AND IT WENT
7 LIKE THAT.
8 JUDGE ALLPHIN: DO YOU HAVE ANY QUESTIONS,
9 MR. WILSON?
10 MR. WILSON: DID -- I GUESS -- THE JUROR INDICATED
11 THAT YOU RETRIEVED A GLOVE FOR HIM SO THAT HE COULD PLAY
12 CATCH WITH YOU.
13 JUDGE KAY: WELL, I HAD TWO GLOVES IN THE CAR. IF
14 HE WANTED TO PLAY CATCH, I WASN'T GOING TO HAVE HIM CATCH MY
15 90 MILE AN HOUR FASTBALL WITH HANDS.
16 MR. WILSON: I TAKE IT IT HAPPENED ONE TIME?
17 JUDGE KAY: HAPPENED ONE TIME. THERE WAS A FEMALE
18 JUROR, I THINK, THE ONE ON THE FAR LEFT BACK, SHE WAS
19 SITTING THERE WATCHING US. AND SHE SAID SHE WOULDN'T WANT
20 TO PLAY A GAME.
21 MR. WILSON: OKAY. ALL RIGHT. THANK YOU, JUDGE.
22 JUDGE ALLPHIN: MR. STIRBA?
23 MR. STIRBA: I HAVE NOTHING, YOUR HONOR. THANK
24 YOU.
25 JUDGE ALLPHIN: THANK YOU, JUDGE. WE APPRECIATE
2622
1 YOU COMING IN.
2 (WHEREUPON, JUDGE KAY LEAVES JUDGE ALLPHIN'S CHAMBERS.)
3 JUDGE ALLPHIN: ANYTHING, MR. WILSON?
4 MR. WILSON: I -- I GUESS WHAT I WOULD LIKE IS AN
5 OPPORTUNITY FOR A FEW MINUTES TO CONSULT WITH THE OTHER
6 ATTORNEYS HERE AND DECIDE WHETHER -- WHAT WE -- WHAT WE FEEL
7 APPROPRIATE.
8 JUDGE ALLPHIN: OKAY. WHY DON'T YOU TAKE THAT FEW
9 MINUTES BECAUSE I'D LIKE TO GET IT RESOLVED NOW, SO --
10 MR. WILSON: OKAY. WE'LL -- WE'LL BE BACK IN WHAT?
11 JUDGE ALLPHIN: I START MY CALENDAR -- MY CRIMINAL
12 CALENDAR AT 9:00.
13 MR. WILSON: FIVE MINUTES.
14 JUDGE ALLPHIN: IF THE COUNTY ATTORNEY'S OFFICE IS
15 READY TO GO AT 9:00.
16 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
17 PROCEEDINGS RESUME IN JUDGE ALLPHIN'S CHAMBERS, AS FOLLOWS:)
18 JUDGE ALLPHIN: MR. WILSON?
19 MR. WILSON: YES, YOUR HONOR. I THINK RIGHT NOW
20 WE'VE DONE SOME LIMITED RESEARCH IN RESPECT TO THIS MATTER.
21 OF COURSE, WE DIDN'T -- WE WEREN'T AWARE OF THE FACTUAL
22 CIRCUMSTANCES SURROUNDING THIS PARTICULAR EVENT AND SO WE --
23 WE'RE NOT PREPARED AT THIS POINT TO GO FORWARD AND WAIVE ANY
24 ISSUE REGARDING BIAS OR PREJUDICE AT THIS TIME. I -- I
25 THINK IT'S IMPORTANT IN THAT CONTEXT THOUGH BEFORE WE MAY
2623
1 COME TO THAT DECISION IF WE HAVE AN UNDERSTANDING FROM THE
2 DEFENDANT AS TO WHAT HIS POSITION IS ON THIS AS TO WHETHER
3 OR NOT THEY'RE PREPARED TO WAIVE THIS CONTACT AS TO CREATING
4 ANY KIND OF BIAS OR PREJUDICE WITH THE JURY. I THINK THAT'S
5 IMPORTANT TO HAVE ON THE RECORD.
6 BUT WE'RE CONSULTING WITH SOME PEOPLE DOWN AT THE
7 A.G.'S OFFICE AS THE COURT WOULD -- WITH CHARLENE BARLOW AS
8 TO WHAT OUR OPTIONS AND ALTERNATIVES ARE, WHAT WE CHOOSE TO
9 EXERCISE. SO WHAT WE'RE SUGGESTING IS ESSENTIALLY GOING
10 FORWARD TODAY WITH -- AT LEAST WITH -- WITH MR. -- WITH DR.
11 HARE, THE BALANCE OF HIS TESTIMONY, AND THEN WE MAY BE
12 ASKING -- WE MAY BE ABLE TO COME TO SOME KIND OF DECISION AT
13 THAT JUNCTURE THAT WE CAN ADDRESS THE COURT WITH. BUT I
14 THINK IT'S IMPORTANT THAT THE COURT BE AWARE OF THE LAW
15 AND -- AND POSSIBLY A MEMORANDUM IN THAT REGARD BEFORE
16 RULING ON -- ON THIS PARTICULAR ISSUE AS FAR AS THAT GOES.
17 JUDGE ALLPHIN: MR. STIRBA?
18 MR. STIRBA: WELL, I THINK THE LAW IS PROBABLY
19 FAIRLY CLEAR AND THAT IS THAT IF IT'S A REBUTTABLE
20 PRESUMPTION, AND THERE HAS TO BE A SHOWING OF ACTUAL
21 PREJUDICE OR BIAS OR SOME CONCERN WITH RESPECT TO THE
22 FAIRNESS OF THE PROCESS, I THINK GIVEN THIS RECORD, THERE
23 HAS BEEN NO SHOWING WHATSOEVER THAT IT'S A PROBLEM AND WE'RE
24 CERTAINLY PREPARED TO GO FORWARD. WE HAVE NO OBJECTION TO
25 CONTINUING. WE'D LIKE TO GO FORWARD AND WE'RE READY TO
2624
1 CONTINUE WITH THE TRIAL.
2 JUDGE ALLPHIN: YOU DON'T THINK -- BASED ON WHAT
3 YOU'VE SAID, YOU DON'T THINK THERE WAS ANY BIAS OR PREJUDICE
4 BECAUSE OF -- AS A RESULT OF THE CONTACT?
5 MR. STIRBA: I THINK IT'S TOTALLY INNOCUOUS CONTACT
6 AND THE JUROR -- HE SAID WHAT HAPPENED AND THE JUDGE SAID
7 WHAT HAPPENED. THEY DIDN'T TALK ABOUT THE CASE AND THERE'S
8 NO INDICATION OF ANY IMPACT WHATSOEVER.
9 AND THE CASE THAT WAS PRESENTED TO JUDGE KAY I THINK
10 WAS A LOGAN CITY CASE, HAD IN THERE THAT IT WAS A REBUTTABLE
11 PRESUMPTION. AND THAT IS THE BURDEN IS ON THE PROPONENT OF
12 THE PROBLEM TO SHOW THAT THERE'S SOME ACTUAL BIAS OR
13 PREJUDICE OR SOME CONCERN ABOUT THE FAIRNESS. AND THE
14 RECORD JUST DOESN'T SUBSTANTIATE IT. YOU KNOW, THIS IS
15 NOT -- WHILE IT MAY BE TRUE IT'S SOMEWHAT UNIQUE IN TERMS OF
16 JUDICIAL CONDUCT -- CONTACT, IT'S CERTAINLY NOT UNIQUE IN
17 TERMS OF CONTACT, PER SE. AND, TYPICALLY, THESE THINGS ARE
18 HELD, A RECORD IS MADE SAYING WHATEVER THE PARTICULAR
19 PROBLEM IS. I THINK THE RECORD HAS BEEN MADE BY YOUR HONOR,
20 AND I THINK YOUR HONOR CAN RULE THAT IT IS AN ISSUE OF NO
21 MOMENT.
22 MR. WILSON: AND I -- I THINK THE INTERPRETATION OF
23 THE CASE LAW IS JUST REVERSE OF WHAT MR. STIRBA SAID. IT'S
24 NOT A REBUTTABLE PRESUMPTION. A PRESUMPTION GOES TOWARD
25 BIAS AND PREJUDICE. AND THEN YOU HAVE TO SHOW THAT THERE
2625
1 WAS NO BIAS OR PREJUDICE. THE CASE LAW GOES FURTHER THOUGH
2 TO DEFINE THAT THE MERE STATEMENT BY A PRO -- OR BY A JUROR
3 TO THE EFFECT THAT THERE WAS NO BIAS IS NOT SUFFICIENT IN
4 AND OF ITSELF.
5 I THINK THE COURT HAS TO LOOK AT ALL OF THE
6 CIRCUMSTANCES SURROUNDING THIS, AND THERE IS EVIDENCE BEFORE
7 THE COURT THAT THERE WERE OTHER JURORS WHO WERE PRESENT.
8 WE'RE NOT DESIROUS OF BRINGING ALL OF THOSE JURORS IN
9 BECAUSE I THINK YOU COULD HAVE A DETRIMENTAL EFFECT FROM
10 THAT STANDPOINT, TOO. BUT I DO THINK THAT IT -- IT OUGHT TO
11 BE BRIEFED AND WE OUGHT TO BE ALLOWED THAT OPPORTUNITY.
12 AND AS WE SEE IT, WE CAN GO FORWARD WITH DR. HARE'S
13 TESTIMONY, BUT WE DON'T WANT TO BRING OUR CASE TO A
14 CONCLUSION.
15 JUDGE ALLPHIN: IS HE YOUR LAST WITNESS?
16 MR. WILSON: NO. WE HAVE ANOTHER WITNESS BEYOND
17 HIM, BUT WE WOULD WANT TO -- TO SET THAT WITNESS OVER SO
18 THAT WE COULD CONCLUDE OUR CASE AFTER WE'VE HAD AN
19 OPPORTUNITY TO REALLY ADDRESS THIS FULLY WITH THE COURT.
20 JUDGE ALLPHIN: WELL, I OBVIOUSLY HAVEN'T SEEN THE
21 CASE LAW.
22 MR. WILSON: AND I THINK WE NEED MORE ABOUT
23 MR. STIRBA'S POSITION ON BEHALF OF HIS CLIENT. I THINK WE
24 NEED ON THE RECORD THAT DR. WEITZEL, THE DEFENDANT, IS
25 WILLING TO WAIVE THAT PARTICULAR CONDUCT AS -- AS
2626
1 CONSTITUTING BIAS AND PREJUDICE TOWARD HIS CASE.
2 MR. MAJOR: I THINK IT NEEDS TO GO FURTHER. I
3 THINK DR. WEITZEL NEEDS TO BE -- THERE NEEDS TO BE SOMETHING
4 ON THE RECORD, HE'S ADVISED AND HE UNDERSTANDS HIS RIGHTS,
5 HE UNDERSTANDS THE MEANING OF WHAT IT WOULD BE FOR A
6 MISTRIAL AND THE RAMIFICATIONS DOWN THE ROAD, AND HE FULLY
7 AND KNOWINGLY WAIVES THAT POSSIBILITY. I THINK IT HAS TO BE
8 A PERSONAL ISSUE WITH DR. -- FOR THE DEFENDANT.
9 MR. STIRBA: YOU KNOW, I DON'T THINK THAT'S A
10 REQUIREMENT, BUT CERTAINLY IF THE COURT FEELS INCLINED TO DO
11 THAT WE CAN DO THAT -- IN ABOUT 30 SECONDS MAKE THAT RECORD.
12 JUDGE ALLPHIN: OKAY.
13 MR. STIRBA: THAT'S NO BIG DEAL.
14 JUDGE ALLPHIN: ASSUMING HE DOES THAT, IS IT STILL
15 GOING TO BE YOUR POSITION THAT --
16 MR. WILSON: WE STILL WANT TO LOOK AT IT BECAUSE WE
17 FEEL THAT THERE MAY BE BIAS TOWARDS THE STATE ON -- ON THIS
18 PARTICULAR MATTER.
19 JUDGE ALLPHIN: HOW SO? I MEAN, GIVE ME SOMETHING
20 TO SUPPORT THAT.
21 MR. WILSON: I THINK FROM THE STANDPOINT THE -- THE
22 COURT IN -- IN THE RECORD, IF -- IF A JUROR PERCEIVES AND
23 BUILDS A RELATIONSHIP WITH THE JUDGE -- OBVIOUSLY THERE'S
24 BEEN A -- AN INTERPERSONAL RELATIONSHIP HERE WITH THE
25 COURT FROM THE STANDPOINT OF CONTACT, FAMILY MEMBERS, THINGS
2627
1 OF THIS SORT, THE JUDGE IS -- IS IN A VERY GOOD POSITION
2 IF -- IF THE JUROR PERCEIVES THAT HE'S LEANING ONE DIRECTION
3 OR ANOTHER TO BE UNDULY INFLUENTIAL OVER THIS PARTICULAR
4 JUROR.
5 THE OTHER ASPECT OF THAT IS THAT YOU HAVE A JUROR
6 WHO'S -- WHO'S OBVIOUSLY GOT THIS RELATIONSHIP WITH THE
7 JUDGE, WHO'S BEEN PERCEIVED BY OTHER JURORS TO HAVE THIS
8 INTERACTION WITH THE JUDGE. DOES HIS OPINION THEN HOLD MORE
9 INFLUENCE IN RESPECT TO THE OTHER MEMBERS OF THE JURY WHEN
10 THEY'RE IN -- IN DELIBERATING?
11 THE -- THE MERE APPEARANCE OF IT, JUDGE, THE
12 IMPROPRIETY OF THE COURT INTERACTING WITH A JUROR.
13 JUDGE ALLPHIN: BUT THE JUDGE DOESN'T REPRESENT ONE
14 SIDE OR THE OTHER. HE'S STANDING IN THE MIDDLE AND HE --
15 MR. WILSON: HE'S NOT SUPPOSED TO. THAT'S TRUE.
16 BUT -- BUT I THINK YOU -- YOU CAN DETERMINE AND JURORS CAN
17 GET FEEDBACK FROM THE COURT RELATIVE TO HOW THEY FEEL ABOUT
18 A CERTAIN CASE. AND -- AND I'M NOT SAYING THAT -- THAT THAT
19 NECESSARILY HAS OCCURRED HERE. WHAT I AM SAYING IS WE OUGHT
20 TO HAVE THAT AS AN OPTION TO TAKE A LOOK AT UNDER THIS
21 PARTICULAR SITUATION TO -- TO RIGHTLY PROTECT OUR INTERESTS
22 WITH A FAIR TRIAL IN THIS MATTER.
23 JUDGE ALLPHIN: SEEMS TO ME YOU WOULD HAVE TO
24 ASSERT THAT THE JUDGE HAS DONE SOMETHING OTHER THAN THIS
25 CONTACT THAT WOULD CAUSE THE -- THE JUROR -- I GUESS WHAT I
2628
1 HEAR YOU SAYING IS PERHAPS THE JUDGE HAS BEEN SWAYED MORE
2 TOWARDS THE STATE AND SO BECAUSE THIS JUROR HAS NOW
3 IDENTIFIED WITH THE -- NOT -- NOT TOWARDS THE STATE, TOWARDS
4 THE DEFENSE. NOW THIS JUROR HAS IDENTIFIED WITH HIM AND HE
5 MIGHT NOT ONLY TAKE HIMSELF, PLUS CARRY SOME OTHERS IN THE
6 DIRECTION OF THE DEFENSE.
7 SEEMS TO ME YOU'VE GOT TO HAVE SOMETHING THAT WOULD
8 INDICATE TO ME THAT THAT HAS HAPPENED, THAT THE JUDGE IS
9 ACTUALLY MAYBE LEANING ONE WAY OR THE OTHER. AND IF THAT'S
10 THE CASE THEN --
11 MR. WILSON: AND I THINK THAT'S SOMETHING WE NEED
12 TO REVIEW AND HAVE AN OPPORTUNITY TO REVIEW. SO ALL I'M
13 SAYING RIGHT NOW IS -- AND I DON'T KNOW WHAT JUDGE KAY'S
14 POSITION IS GOING TO BE -- BUT WE WERE --
15 JUDGE ALLPHIN: I THINK JUDGE KAY'S POSITION IS
16 THIS TRIAL HAS GONE ON FOR A LONG PERIOD OF TIME AND TO --
17 TO HAVE IT END UP IN A MISTRIAL NOW IS -- IS -- IT'S NOT
18 SOMETHING HE WANTS. EVEN, OBVIOUSLY, IF HE DIDN'T HAVE TO
19 RETRY IT, IT'S SOMETHING THAT'S TAKEN A LOT OF JUDICIAL
20 TIME, A LOT OF RESOURCES BOTH ON THE SIDE OF THE STATE AND
21 THE DEFENSE.
22 MR. WILSON: I RESPECT THAT, YOUR HONOR, AND I'M
23 NOT -- I'M NOT TAKING THIS LIGHTLY EITHER. AND -- BUT WE
24 WANT -- WE WANT AN OPPORTUNITY TO ADDRESS PROMPTLY.
25 JUDGE ALLPHIN: OKAY. WELL, I CLEARLY NEED TO KNOW
2629
1 WHAT THE LAW IS. BUT AS FAR AS THE FACTS THAT ARE BEFORE ME
2 REGARDING BIAS AND PREJUDICE, YOU KNOW, I -- MR. STIRBA HAS
3 INDICATED AND I TEND TO AGREE THAT SO FAR I HAVEN'T SEEN ANY
4 FACTS THAT CAUSE ME TO BE CONCERNED THAT THERE MAYBE SOME
5 BIAS OR PREJUDICE HERE.
6 BUT YOU -- YOU PROVIDE ME WHAT THE LAW IS AS FAR AS
7 THE -- THE PRESUMPTION AND SEE WHAT KIND OF FINDINGS I
8 ACTUALLY HAVE TO MAKE. BUT --
9 MR. WILSON: I'LL BE HAPPY TO DO THAT. I JUST --
10 JUDGE ALLPHIN: -- I DON'T WANT TO STOP THE TRIAL.
11 IT NEEDS TO CONTINUE. AND I THINK THAT WOULD CAUSE AS MUCH
12 CONCERN FOR -- I THINK THAT WAS ONE OF JUDGE KAY'S CONCERNS
13 THIS MORNING IS IF -- IF IT EITHER STOPS OR IT'S POSTPONED
14 FOR ANY LENGTH OF TIME, IT'S GOING TO CAUSE MORE PROBLEMS
15 WITH THE JURY AS TO WHAT THEY'RE GOING TO THINK ABOUT WHAT
16 IS GOING ON. I THINK WE JUST NEED TO PROCEED ON AS
17 NORMAL -- NORMAL AS CAN BE.
18 HOW MUCH TIME DO YOU WANT TO PROVIDE ME WITH SOME
19 INFORMATION?
20 MR. WILSON: WELL, WE'LL -- WE'LL TRY AND DO IT AS
21 EXPEDITIOUSLY AS POSSIBLE. PROBABLY BY NOON, IF WE CAN.
22 MR. MAJOR: BECAUSE I THINK THE ANTICIPATION WAS WE
23 WOULD FINISH WITH THE WITNESS BY NOON AND THEN WE WOULD --
24 THE JURORS WOULD BE EXCUSED THIS AFTERNOON. AND THEN WE
25 WOULD HAVE THE ARGUMENTS -- THERE WAS AN INDICATION THERE
2630
1 WOULD BE A MOTION TO DISMISS AT THE CONCLUSION OF THE
2 STATE'S CASE.
3 JUDGE ALLPHIN: SO YOU ANTICIPATE FINISHING THIS
4 MORNING?
5 MR. WILSON: WE DID.
6 JUDGE ALLPHIN: OKAY.
7 MR. WILSON: I DON'T KNOW WHETHER THAT WILL TAKE
8 PLACE NOW OR NOT.
9 MR. MAJOR: THAT'S ONE OF THE OTHER ISSUES BECAUSE
10 I THINK THIS NEEDS TO BE DECIDED BEFORE THE STATE CONCLUDES
11 ITS CASE.
12 JUDGE ALLPHIN: OKAY. MR. STIRBA, ANYTHING?
13 MR. STIRBA: WELL, I DON'T HAVE ANYTHING TO ADD
14 OTHER THAN REALLY WHAT I'VE SAID. WE OUGHT TO GO FORWARD.
15 I DON'T THINK IT'S AN ISSUE OF GREAT MOMENT OR OF FAIRNESS
16 HERE, AND WE WANT TO GO FORWARD. AND IF THE COURT WISHES TO
17 HAVE US PROVIDE A MEMORANDUM, WE WILL AT THE APPROPRIATE
18 TIME.
19 JUDGE ALLPHIN: WELL, I THINK GIVEN THE FACT THAT
20 HE READS THE CASE LAW ONE WAY AND YOU READ IT ANOTHER, I
21 NEED TO HAVE SOME INFORMATION SO THAT I CAN MAKE A DECISION
22 THAT'S APPROPRIATE.
23 MR. STIRBA: I THINK IN TERMS OF THE SCHEDULES, AS
24 I UNDERSTAND WHAT THE COUNTY ATTORNEY IS SAYING, DR. HARE,
25 WHO IS SUBJECT TO CROSS-EXAMINATION THIS MORNING, THAT WILL
2631
1 GO FORWARD.
2 AND THEN I THINK IN TERMS OF THE PROCEDURAL QUESTION OF
3 WHERE WE GO FROM THERE, I THINK WE OUGHT TO BRING THAT UP
4 WITH JUDGE KAY WHILE THIS MATTER IS PENDING BEFORE YOUR
5 HONOR.
6 JUDGE ALLPHIN: OKAY.
7 MR. WILSON: I APPRECIATE THAT. PERHAPS WE COULD
8 ADDRESS IT WITH HIM.
9 JUDGE ALLPHIN: ALL RIGHT.
10 MR. STIRBA: THANK YOU, YOUR HONOR.
11 JUDGE ALLPHIN: THANK YOU. I'LL TAKE THE MATTER
12 UNDER ADVISEMENT THEN.
13 (WHEREUPON, AT THIS TIME PROCEEDINGS CONCLUDE IN JUDGE
14 ALLPHIN'S CHAMBERS AND RESUME IN JUDGE KAY'S CHAMBERS, AS
15 FOLLOWS:)
16 THE COURT: OKAY. ALL RIGHT. WE'RE BACK ON THE
17 RECORD AT ABOUT, WHAT IS IT, 9:15 ON THE 26TH OF JUNE.
18 OKAY. WHAT DO WE NEED TO DISCUSS?
19 MR. WILSON: I ASKED AGAIN FOR THIS MEETING, YOUR
20 HONOR. WE'VE MET WITH JUDGE ALLPHIN AND HE'S TAKEN IT UNDER
21 ADVISEMENT RIGHT NOW.
22 THE COURT: OKAY.
23 MR. WILSON: BEFORE MAKING ANY FINDINGS. WE WOULD
24 LIKE TO BRIEF AND GIVE HIM A MEMORANDUM AS IT RELATES TO THE
25 LAW, AND MR. STIRBA HAS INDICATED A WILLINGNESS TO RESPOND
2632
1 FROM THAT STANDPOINT. THE DILEMMA THE STATE IS IN AT THIS
2 JUNCTURE IS -- IS WE WOULD LIKE THIS ISSUE RESOLVED BEFORE
3 WE FINISH OUR CASE.
4 THE COURT: OKAY.
5 MR. WILSON: WE'RE PREPARED TO GO FORWARD WITH BRAD
6 HARE'S CROSS-EXAMINATION AND REDIRECT, BUT OUR SUGGESTION TO
7 THE COURT WOULD BE THEN TO ALLOW THE JURY TO GO HOME AT THAT
8 JUNCTURE, AND THEN WE WOULD COME BACK AND FINISH OUR CASE UP
9 TOMORROW MORNING.
10 THE COURT: OKAY. HOW LONG WOULD THAT TAKE IN THE
11 MORNING, DO YOU THINK?
12 MR. WILSON: WELL, IT SHOULDN'T TAKE MORE THAN A
13 COUPLE OF HOURS, YOUR HONOR, IN THE MORNING FROM THAT
14 STANDPOINT.
15 THE COURT: DO YOU THINK WITH BOTH DIRECT AND
16 CROSS?
17 MR. WILSON: WELL, I WOULD IMAGINE. I DON'T
18 ANTICIPATE TAKING A LONG TIME WITH DR. CROOKSTON.
19 THE COURT: OKAY.
20 MR. WILSON: I ANTICIPATE PUTTING JOE MORRISON BACK
21 ON THE STAND, BUT HIS TESTIMONY WOULD BE BRIEF AS IT GOES TO
22 A PARTICULAR EXHIBIT THAT'S BEEN PREPARED IN SUMMARY.
23 THE COURT: WHAT ABOUT TIMING, IF WE HAVE THE JURY
24 COME IN THIS MORNING, DO CROSS-EXAMINATION, REDIRECT, THEN
25 THE NEXT THING WE DO IS SEND THE JURY HOME. THEN WE COME
2633
1 TOMORROW FOR TWO HOURS, SEND THE JURY HOME.
2 MR. WILSON: WE COULD ALSO ADDRESS THE MOTIONS TO
3 DISMISS, I WOULD IMAGINE, BE PREPARED ON THOSE. WE'VE
4 DONE -- WE'VE ESSENTIALLY DONE OUR -- OUR RESPONSE, BUT WE
5 HAVE NOT RECEIVED A COPY, OBVIOUSLY, AND WOULD NOT RECEIVE
6 ONE, I GUESS, UNTIL OUR ENDING -- END OF OUR CASE.
7 THE COURT: OKAY. HOW DO YOU FEEL ABOUT THIS
8 SCHEDULE?
9 MR. STIRBA: I THINK MAYBE WE'RE STUCK WITH IT.
10 THE COURT: OKAY.
11 MR. STIRBA: OBVIOUSLY, I WOULD HOPE THAT JUDGE
12 ALLPHIN CAN DECIDE THE ISSUE THIS AFTERNOON AND WE CAN FULLY
13 BRIEF IT AND ARGUE IT, IF NECESSARY. AND THEN WE DO WHAT WE
14 HAVE TO DO TOMORROW, BUT WE DO HAVE FAIRLY SIGNIFICANT
15 ARGUMENTS ON MOTIONS. SO I --
16 THE COURT: HOW LONG DO YOU ANTICIPATE THAT WOULD
17 BE?
18 MR. STIRBA: I THINK A GOOD, SOLID HOUR.
19 THE COURT: FOR YOU OR FOR BOTH OR WHAT?
20 MR. STIRBA: I THINK FOR BOTH, YOUR HONOR.
21 THE COURT: WELL, I MEAN, IF WE'RE SENDING THEM
22 HOME AFTER TWO OR THREE HOURS OF TESTIMONY MONDAY, THE REST
23 OF THE DAY IS THEIRS SO -- I MEAN, WHATEVER WE NEED TO DO.
24 OKAY. ARE YOU READY TO GO NOW THEN?
25 MR. WILSON: WE ARE.
2634
1 THE COURT: THEN LET'S DO THAT SO THE JURY IS NOT
2 SITTING ANYMORE.
3 (WHEREUPON, AT THIS TIME THE CONFERENCE IN CHAMBERS
4 CONCLUDES, AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
5 THE COURT: OKAY. THE RECORD WILL REFLECT THAT THE
6 JURY IS PRESENT, COUNSEL AND THE DEFENDANT ARE PRESENT.
7 WE'RE SORRY FOR THE DELAY, LADIES AND GENTLEMEN.
8 I BELIEVE -- OKAY, DR. HARE, YOU UNDERSTAND YOU'RE
9 UNDER OATH?
10 THE WITNESS: YES, SIR.
11 THE COURT: YOU'RE UNDER OATH.
12 AND I BELIEVE ON FRIDAY, MR. WILSON, YOU FINISHED AND
13 IT WAS MR. STIRBA'S TURN FOR CROSS-EXAMINATION.
14 MR. WILSON: THAT'S CORRECT, YOUR HONOR.
15 MR. STIRBA: THANK YOU, YOUR HONOR.
16 CROSS-EXAMINATION
17 BY MR. STIRBA:
18 Q. DR. HARE, DO YOU HAVE THE BINDERS -- THE EXHIBIT BINDERS
19 UP THERE?
20 A. YES, I DO.
21 Q. WOULD YOU AGREE, DR. HARE, THAT AS A RECORD REVIEWER IN
22 THIS CASE, IF YOU SAW SOMEBODY CHARTING THE WORD "PAIN" IN A
23 MEDICAL RECORD THAT THAT WOULD, IN FACT, BE A SIGN OR
24 SYMPTOM OF PAIN?
25 A. I WOULD WANT MORE INFORMATION THAN JUST THE WORD PAIN IN
2635
1 THE RECORDS. I MEAN, IF I -- IF I WERE TO INTERPRET THE
2 RECORDS AS TO -- FOR THE PURPOSE OF DISCERNING WHETHER I --
3 I AGREED WITH THE DIAGNOSIS OF PAIN, I WOULD WANT MORE
4 INFORMATION THAN SOMEBODY ELSE JUST STATING PAIN.
5 Q. SO, IN OTHER WORDS, YOU BELIEVE THAT AS A RECORD
6 REVIEWER YOU MIGHT HAVE BETTER INSIGHT INTO SOMEBODY'S
7 ASSESSMENT OF PAIN WHO IS ACTUALLY THERE AND IN FACT DEALING
8 WITH THE PATIENT. IS THAT YOUR TESTIMONY?
9 A. NO, THAT'S NOT WHAT I'M SAYING AT ALL. I'M SAYING THAT
10 THE WORD "PAIN" WOULD TIP ME OFF THAT THE WRITER OF THE
11 RECORDS THOUGHT THE PATIENT WAS HAVING PAIN. I WOULD
12 THEN --
13 Q. AND THAT -- AND THAT WOULD --
14 A. -- I WOULD LIKE TO THEN --
15 THE COURT: LET HIM FINISH HIS ANSWER.
16 A. I WOULD LIKE TO THEN LOOK AT THE RECORDS AND GET A
17 BETTER IDEA OF WHAT WAS GOING ON WITH THE PATIENT.
18 Q. (BY MR. STIRBA) BUT CERTAINLY, AS YOU JUST TESTIFIED,
19 IF YOU SAW SOMEBODY CHARTING PAIN, YOU SAID YOU WOULD THINK
20 THAT THAT PERSON THOUGHT SOMEBODY WAS IN PAIN, TRUE?
21 A. THAT'S TRUE.
22 Q. AND IT'S ALSO TRUE THAT IF SOMEBODY WHO WAS TREATING THE
23 PATIENT AT THE TIME AND CHARTED PAIN, THINKING THERE WAS
24 PAIN, THAT WOULD IN FACT BE A SIGN AND SYMPTOM OF PAIN IN
25 THE RECORD, WOULDN'T IT?
2636
1 A. IT WOULD -- AGAIN, I THINK IT WOULD BE A MATTER OF
2 WHETHER THAT ASSESSMENT WAS APPROPRIATE OR NOT.
3 Q. WELL, THE QUESTION REALLY ISN'T WHETHER YOU THINK THERE
4 WAS PAIN, SIR. THE QUESTION IS, IF SOMEBODY BELIEVES IN
5 TREATING THAT PATIENT THAT SOMEBODY WAS IN PAIN AND CHART IT
6 IN THE MEDICAL RECORD, AND THEN YOU AS A RECORD REVIEWER SAW
7 THAT, WOULD YOU BELIEVE THAT THAT WOULD BE A SIGN OR SYMPTOM
8 OF PAIN, AS REFLECTED IN THE RECORD?
9 A. AGAIN, I WOULD NEED TO REVIEW FURTHER IN THE RECORDS
10 THAN JUST THE -- SEEING THE STATEMENT "PAIN."
11 Q. CERTAINLY YOU WOULD AGREE, WOULD YOU NOT, IF A
12 PATIENT -- AS A RECORD REVIEWER -- WAS RECEIVING NARCOTIC
13 PAIN MEDICATION, YOU, AS A PAIN SPECIALIST, WOULD BELIEVE
14 THAT THAT IS A SIGN AND SYMPTOM OF PAIN AS REFLECTED IN THE
15 RECORD, TRUE?
16 A. JUST THE FACT THAT THE PATIENT'S RECEIVING MORPHINE?
17 Q. I DIDN'T SAY THAT.
18 A. I'M SORRY, I DIDN'T UNDERSTAND YOUR QUESTION. I'M
19 SORRY. COULD YOU REPEAT YOUR QUESTION?
20 Q. SURE. I'LL REPHRASE IT. AS A RECORD REVIEWER,
21 CERTAINLY -- AND AS A PAIN SPECIALIST, IF YOU SAW THAT ONE
22 OF THE PATIENTS IN THIS CASE WAS RECEIVING NARCOTIC PAIN
23 MEDICATION, YOU WOULD AGREE THAT THAT IS CERTAINLY A SIGN OR
24 SYMPTOM OF PAIN, TRUE?
25 A. I THINK THESE RECORDS WOULD INDICATE JUST THE OPPOSITE.
2637
1 I THINK IN THESE RECORDS WE HAVE PATIENTS RECEIVING MORPHINE
2 WHERE THERE ISN'T ANY INDICATION OF PAIN. SO I -- I WOULD
3 SAY ABSOLUTELY NOT.
4 Q. OKAY. SO YOUR TESTIMONY IS EVEN THOUGH YOU WILL SEE IN
5 A MEDICAL RECORD THAT A PATIENT IS RECEIVING -- PRESCRIBED
6 BY ANOTHER PHYSICIAN -- NARCOTIC PAIN MEDICATION FOR PAIN,
7 YOU DON'T BELIEVE AND YOU'RE TELLING THIS JURY THAT THAT
8 NECESSARILY ISN'T A SIGN OR SYMPTOM OF PAIN. IS THAT YOUR
9 TESTIMONY?
10 A. YES.
11 Q. AND, IN FACT, YOU TOLD THIS JURY ON FRIDAY ON DIRECT
12 THAT YOU LOOKED AT THE MEDICAL RECORDS OF ELLEN ANDERSON,
13 TRUE?
14 A. YES.
15 Q. AND, IN FACT, YOU TOLD THE JURY THAT YOU REVIEWED THEM
16 AND YOU DIDN'T SEE ANY SIGNS OR SYMPTOM OF PAIN, TRUE?
17 A. IN AS FAR AS THE DAVIS HOSPITAL RECORDS, YES. AS FAR AS
18 ANY -- ANY INDICATION IN THE PATIENT, BY HISTORY OR
19 OTHERWISE THAT -- THAT THERE WAS PAIN, YES, THAT'S TRUE.
20 Q. OF COURSE, THAT REALLY WASN'T YOUR TESTIMONY. MY
21 QUESTION WAS, DIDN'T YOU TELL US ON FRIDAY AND TELL THIS
22 JURY THAT YOU REVIEWED THOSE RECORDS AND YOU DIDN'T SEE ANY
23 SIGN OR SYMPTOM OF PAIN. CORRECT OR NOT?
24 A. AS FAR AS AT THE TIME SHE WAS RECEIVING THE MORPHINE,
25 THAT'S CORRECT.
2638
1 Q. WELL, THAT WASN'T MY QUESTION. I'LL REPEAT IT.
2 A. WELL, IF I MADE THAT STATEMENT, IT WAS IN THAT -- IN
3 THAT CONTEXT.
4 Q. OH, IT WAS -- IT WAS IN THAT CONTEXT.
5 A. I WAS ASKED --
6 Q. IT WASN'T -- IT WASN'T IN THE CONTEXT THEN, SIR, OF YOU
7 WERE ASKED A QUESTION: DID YOU REVIEW THESE RECORDS AND DID
8 YOU SEE ANY SIGNS OR SYMPTOMS OF PAIN? AND YOUR ANSWER TO
9 THIS JURY LAST FRIDAY WAS NO. TRUE?
10 A. I WOULD HAVE TO -- I'D HAVE TO REVIEW THE CONTEXT IN
11 WHICH THAT QUESTION WAS ASKED.
12 Q. IN FACT, YOU'RE AWARE, ARE YOU NOT, THAT THERE ARE A
13 NUMBER OF EXAMPLES WHERE THE WORD "PAIN" IS USED IN ELLEN
14 ANDERSON'S DAVIS HOSPITAL RECORDS, TRUE?
15 A. I'D -- I'D NEED TO LOOK AT THOSE --
16 Q. BINDER'S IN FRONT OF YOU, SIR, ON THE LEFT THERE. I
17 FORGET WHICH EXHIBIT IT IS. IT'S A STATE'S EXHIBIT. DO YOU
18 HAVE THAT IN FRONT OF YOU NOW?
19 A. I DO.
20 Q. IT'S TRUE, IS IT NOT, THAT WITHOUT MAKING A SPECIFIC
21 REFERENCE TO THAT BINDER, YOU CAN'T TESTIFY TO THIS JURY
22 MERELY BASED UPON YOUR RECOLLECTION OF YOUR REVIEW, CORRECT?
23 A. IN AS FAR AS MY EVALUATION, AS FAR AS WHAT I COULD TELL
24 FROM THE RECORDS ON THIS PATIENT AT THE TIME THAT SHE WAS
25 ADMITTED TO DAVIS HOSPITAL, THERE DID NOT SEEM TO BE ANY
2639
1 INDICATION SHE WAS EXPERIENCING PAIN.
2 Q. OKAY. BUT MY QUESTION BEFORE THAT THAT PROMPTED YOU TO
3 GET THE BINDER WAS I ASKED YOU: ISN'T IT TRUE THAT THERE
4 ARE A NUMBER OF INSTANCES IN THE DAVIS HOSPITAL RECORDS
5 WHERE THE WORD "PAIN" IS USED IN REFERENCE TO ELLEN
6 ANDERSON, CORRECT?
7 A. AGAIN, NONE THAT I'M AWARE OF THAT WOULD INDICATE THAT
8 SHE HAD ONGOING PAIN AT THE TIME THAT SHE WAS ADMITTED TO
9 THE HOSPITAL.
10 Q. AND IT'S TRUE, ISN'T IT, SIR, THAT SHE WAS PRESCRIBED A
11 NARCOTIC PAIN MEDICATION, SPECIFICALLY LORTAB, PRIOR TO HER
12 ADMISSION TO THE HOSPITAL? TRUE?
13 A. SHE DID HAVE A STANDING ORDER.
14 Q. AND, IN FACT, THAT STANDING ORDER WAS FOR, IN FACT,
15 PAIN, CORRECT?
16 A. IT WAS A P.R.N. ORDER FOR PAIN, YES.
17 Q. AND IT'S ALSO TRUE THAT SHE WAS PRESCRIBED ANOTHER
18 MEDICATION FOR PAIN BEFORE SHE WAS ADMITTED TO THE HOSPITAL,
19 AND THAT IS NITROSTAT, TRUE?
20 A. THAT'S CORRECT.
21 Q. AND, IN FACT, THAT WAS GIVEN TO HER FOR CHEST PAIN,
22 CORRECT?
23 A. THAT'S CORRECT.
24 Q. AND BOTH OF THOSE INDICATIONS ARE PART OF THE DAVIS
25 HOSPITAL RECORDS WHICH YOU TELL US YOU HAVE REVIEWED, TRUE?
2640
1 A. YES.
2 Q. SO THERE WERE, IN FACT, BASED UPON WHAT YOU JUST
3 TESTIFIED TO, INDICATIONS, SIGNS, AND SYMPTOMS IN THE DAVIS
4 RECORDS OF PAIN, CORRECT?
5 A. THAT DIAGNOSIS WAS BROUGHT UP, BUT EXPLAINED BY BOTH
6 DR. WILDING AND THE PATIENT'S DAUGHTER THAT ANXIETY WAS
7 REALLY HER PROBLEM, NOT PAIN.
8 Q. FOR EXAMPLE, SIR, IF WE LOOK AT MED-00179, WHICH IS THE
9 ADMISSION FORM, THE NURSING ASSESSMENT FORM, WHICH YOU WOULD
10 HAVE REVIEWED, IT SAYS NITROSTAT -- AND THEN IT HAS A DOSAGE
11 LEVEL -- P.R.N. CHEST PAIN. DO YOU SEE THAT?
12 A. YES.
13 Q. AND THAT'S PART OF THE DAVIS HOSPITAL RECORD, CORRECT?
14 A. THAT WAS -- THAT WAS PART OF THE HISTORY.
15 Q. PART OF THE DAVIS HOSPITAL RECORD, TRUE?
16 A. THIS FORM?
17 Q. YES.
18 A. YES.
19 Q. YOU REVIEWED IT, TRUE?
20 A. YES.
21 Q. AND ALSO IT SAYS: LORTAB, ONE TAB P.O. Q 4 TO 6 HOURS
22 P.R.N. PAIN. DO YOU SEE THAT?
23 A. YES.
24 Q. THAT'S ALSO IN THE MEDICAL RECORD, TRUE?
25 A. YES.
2641
1 Q. AND, IN FACT, THAT CHEST PAIN AND NITROSTAT, THAT'S A
2 HEART MEDICATION, ISN'T IT?
3 A. IT IS.
4 Q. AND, IN FACT, YOU'RE AWARE, BASED UPON YOUR REVIEW OF
5 MS. ANDERSON'S MEDICAL HISTORY, THAT SHE HAD BEEN DIAGNOSED
6 WITH CONGESTIVE HEART FAILURE, TRUE?
7 A. SHE DID HAVE THAT DIAGNOSIS, YES.
8 Q. AND, IN FACT, SHE'S HAVING CHEST PAIN ASSOCIATED WITH A
9 HEART DYSFUNCTION, ESSENTIALLY IT'S ANGINA, TRUE?
10 A. NOT NECESSARILY, NO.
11 Q. BUT THE NITROSTAT WAS PRESCRIBED FOR HER AS A HEART
12 MEDICATION, CORRECT?
13 A. THE NITROSTAT IS A HEART MEDICATION.
14 Q. SIMILARLY, ANOTHER DOCUMENT YOU REVIEWED IN
15 MS. ANDERSON'S FILE IS THE NURSING ASSESSMENT FORM, AND THIS
16 IS MED-00180. AND IT SAYS UP AT THE TOP: HIP FRACTURE,
17 JUNE OF 1995, AND THEN IT HAS CIRCLED, RIGHT. DO YOU SEE
18 THAT?
19 A. YES.
20 Q. THEN IT GOES ON TO SAY, AFTER IT LISTS WRIST FRACTURE,
21 ANKLE FRACTURE, IT HAS: SEVERE OSTEOPOROSIS OF SPINE WITH
22 COMPRESSION FRACTURE. DO YOU SEE THAT?
23 A. YES.
24 Q. IT'S TRUE, IS IT NOT, THAT A COMPRESSION FRACTURE
25 RELATES TO A FRACTURE IN HER BACK, TRUE?
2642
1 A. THAT'S CORRECT.
2 Q. IT'S TRUE, IS IT NOT, THAT A COMPRESSION FRACTURE CAN,
3 IN FACT, BE EXCEEDINGLY PAINFUL, CORRECT?
4 A. IT CAN ACUTELY, YES.
5 Q. AND IT'S ALSO TRUE, IS IT NOT, THAT IN THE GERIATRIC
6 POPULATION, CERTAINLY THE POPULATION THAT MS. ANDERSON WAS
7 IN, IT IS FAIRLY WELL UNDERSTOOD THAT AT LEAST 40 PERCENT OF
8 THOSE FOLKS HAVE CHRONIC PAIN. ISN'T THAT TRUE?
9 A. I CAN'T AGREE OR DISAGREE WITH THAT STATEMENT. Pain expert.
10 Q. DO YOU RECALL TESTIFYING IN A DEPOSITION RELATED TO THIS
11 MATTER THAT, IN FACT, THAT STATEMENT WAS TRUE?
12 A. I DID NOT MAKE THAT STATEMENT.
13 Q. DO YOU REMEMBER AGREEING THAT THAT WAS, IN FACT, TRUE?
14 THAT 40 PERCENT OF THE GERIATRIC POPULATION SUFFER FROM
15 CHRONIC PAIN?
16 A. I DON'T RECALL ONE WAY OR ANOTHER. THAT MAY BE TRUE AT
17 VARIOUS TIMES IN THEIR LIVES, BUT IT ISN'T NECESSARILY A --
18 A CONSTANT THING.
19 Q. AND CERTAINLY YOU WOULD BELIEVE, WOULD YOU NOT, AS A
20 PHYSICIAN, THAT SOMEBODY WHO IS IN MS. ANDERSON'S
21 SITUATION -- AND I BELIEVE SHE WAS 91 AT THE TIME --
22 SUFFERING FROM WHAT IS CHARACTERIZED AS SEVERE OSTEOPOROSIS,
23 SHE WOULD, IN FACT, IN ALL LIKELIHOOD, BE SUFFERING CHRONIC
24 PAIN; ISN'T THAT TRUE?
25 A. THAT'S ONLY IF SHE HAS FRACTURES, AND ACCORDING TO THE
2643
1 AUTOPSY, SHE DID NOT HAVE ANY CURRENT FRACTURES AT THE TIME
2 OF HER DEATH.
3 Q. NOW, YOU'RE ALSO AWARE THIS FORM, WHICH IS MED-00182 --
4 AND THERE ARE A NUMBER OF THINGS CIRCLED. AND IT GOES:
5 HISTORY OF BACK PAIN. DO YOU SEE THAT?
6 A. YES.
7 Q. CERTAINLY THAT WOULD BE -- AS REPORTED BY THE FAMILY OF
8 THE PATIENT -- THAT WOULD BE A SIGN AND SYMPTOM OF PAIN,
9 TRUE?
10 A. WHEN A -- WHEN A STATEMENT IS MADE THAT A PATIENT HAS A
11 HISTORY OF PAIN, THAT MEANS AT SOME TIME IN THEIR LIFE THEY
12 HAD PAIN. THAT DOES NOT MEAN IT'S ONGOING PAIN.
13 Q. OKAY. BUT THE QUESTION REALLY IS, IS THAT A SIGN OR
14 SYMPTOM OF PAIN? YES OR NO?
15 A. IT DOES NOT HAVE ANY RELEVANCE TO ANY ONGOING, CURRENT
16 PAIN.
17 Q. OKAY. YOU MAKE THAT INTERPRETATION, ALTHOUGH THE
18 DOCUMENT DOES NOT SAY THAT, CORRECT?
19 A. THE DOCUMENT -- DOCUMENT SAYS A HISTORY OF PAIN.
20 Q. THAT'S RIGHT.
21 A. IT DOES NOT SAY ONGOING BACK PAIN.
22 Q. THAT IS TRUE. AND THEN, ALSO, IT SAYS -- IT REFERS TO
23 PROBLEMS WITH BONES AND JOINTS. YOU'RE AWARE THAT PROBLEMS
24 WITH BONES AND JOINTS CAN, IN FACT, BE PAINFUL?
25 A. THAT'S TRUE.
2644
1 Q. IN OTHER WORDS, ARTHRITIS IS CERTAINLY A PAINFUL PROBLEM
2 FOR MANY PEOPLE IN THIS COUNTRY, TRUE?
3 A. IT IS.
4 Q. AND CERTAINLY PROBLEMS WITH BONES; THAT IS,
5 OSTEOPOROSIS, CAN LEAD TO FRACTURES WHICH CAN, IN FACT, BE
6 PAINFUL, TRUE?
7 A. THAT'S TRUE.
8 Q. AND CERTAINLY JOINT PAIN CAN BE PAINFUL, TRUE?
9 A. IT CAN BE.
10 Q. YOU DON'T THINK THAT LOOKING AT THAT ASSESSMENT FORM,
11 GIVEN WHAT IS CIRCLED THERE, THAT THAT IS A SIGN OR SYMPTOM
12 OF PAIN?
13 A. CERTAINLY NOT PAIN THAT WOULD REQUIRE MORPHINE, NO.
14 Q. WELL, THE QUESTION THOUGH THAT WAS ASKED AND THE
15 QUESTION THAT YOU ANSWERED WAS WHETHER THERE WAS SIGNS OR
16 SYMPTOMS OF PAIN REFLECTED IN THIS RECORD. AND YOU TOLD THE
17 JURY LAST FRIDAY NO. TRUE?
18 A. THE OTHER PIECE OF INFORMATION THAT I THINK NEEDS TO BE
19 CONSIDERED IS THAT -- IS THE INFORMATION FROM THE PATIENT'S
20 DAUGHTER WHO FELT THAT THIS PATIENT DID NOT HAVE PAIN. SHE
21 FELT THAT HER COMPLAINTS OF PAIN, AT LEAST THOSE REQUIRING
22 ANY SORT OF TREATMENT, WERE ANXIETY. AND SHE FELT THAT
23 THERE WAS NOT ANY ONGOING SERIOUS PAIN PROBLEMS. So the daughter diagnoses.
24 Q. OKAY. THE QUESTION I ASKED THOUGH WAS NOT THAT. THE
25 QUESTION I ASKED WAS, DIDN'T YOU TELL US LAST FRIDAY THAT
2645
1 YOU REVIEWED THIS RECORD AND YOU TOLD THE JURY THERE WERE NO
2 SIGNS OR SYMPTOMS OF PAIN IN THAT RECORD? YES OR NO?
3 A. ANY SIGNS OR SYMPTOMS OF PAIN THAT WOULD REQUIRE THE
4 SORT OF TREATMENT SHE RECEIVED, THAT'S A YES.
5 Q. BUT, SIR, THAT WASN'T YOUR TESTIMONY LAST FRIDAY, WAS
6 IT?
7 A. AGAIN, AS FAR AS ANY SIGNS OR SYMPTOMS OF PAIN THAT
8 WOULD REQUIRE THE SORT OF TREATMENT SHE RECEIVED, THERE WAS
9 ABSOLUTELY NO INDICATION IN THE HISTORY RECORDS OR THE DAVIS
10 HOSPITAL RECORDS.
11 Q. NOW, IT'S TRUE, ALSO, ON THIS NURSING ASSESSMENT FORM,
12 WHICH IS SIGNED BY ONE OF THE NURSES DOWN AT THE BOTTOM --
13 AND THIS IS MED-00188 -- IT HAS -- IN TERMS OF EDUCATION, IT
14 HAS TEACH PAIN MANAGEMENT INTERVENTIONS. DO YOU SEE THAT?
15 A. YES, I DID.
16 Q. NOW, IS IT FAIR TO SAY, SIR, THAT A NURSE WOULD NOT BE
17 INDICATING TEACHING PAIN MANAGEMENT INTERVENTIONS UNLESS
18 MS. ANDERSON, IN FACT, WAS IN PAIN?
19 A. I DON'T THINK THAT THAT'S NECESSARILY A FAIR CONCLUSION.
20 Q. YOU DON'T THINK THAT THAT IS A LOGICAL SURMISE FROM THE
21 FACT THAT THE NURSE INDICATED SHE WAS GOING TO TEACH PAIN
22 INTERVENTION? IS THAT YOUR TESTIMONY?
23 A. I -- I, AGAIN, DON'T KNOW, YOU KNOW, ON WHAT INFORMATION
24 THE -- YOU KNOW, THE NURSE WAS BASING THAT STATEMENT.
25 Q. SURE. AND THAT'S PART OF THE PROBLEM, ISN'T IT, SIR,
2646
1 THAT YOU REALLY DON'T KNOW BECAUSE YOU DIDN'T TREAT OR SEE
2 ELLEN ANDERSON, TRUE?
3 A. THAT'S TRUE.
4 Q. THERE WERE OTHERS WHO WERE RIGHT THERE, SEEING HER,
5 TAKING CARE OF HER, WHO WERE MAKING CLINICAL JUDGMENTS;
6 ISN'T THAT TRUE?
7 A. THAT'S TRUE.
8 Q. AND IT'S TRUE TO A GREAT EXTENT, THOSE CLINICAL
9 JUDGMENTS ARE MUCH MORE INSIGHTFUL THAN YOU COMING IN AFTER
10 THE FACT FIVE YEARS LATER AND REVIEWING THOSE RECORDS; ISN'T
11 THAT CORRECT?
12 A. THERE ARE CERTAIN BASIC PIECES OF INFORMATION THAT NEED
13 TO BE IN CLINICAL RECORDS TO JUSTIFY CLINICAL DECISION
14 MAKING AND TREATMENT. AND IN THIS PARTICULAR CASE, THERE
15 ARE NOT INDICATIONS OF PAIN IN THE RECORDS THAT WOULD
16 JUSTIFY THE USE OF MORPHINE AS IT HAS BEEN USED IN THIS
17 SITUATION.
18 Q. HOW ABOUT THE FIRST ENTRY BY THE NURSE AT ABOUT 7:30 ON
19 THE 29TH, WHICH YOU ALSO REVIEWED, AND IT'S RIGHT THERE IN
20 THE RECORDS UNDER MED NOTE: M.S. 10 MILLIGRAMS I.M. AT 2000
21 FOR SEVERE PAIN.
22 AND THERE'S A LITTLE WORDING THERE, IT'S HARD TO READ,
23 BUT I THINK AFTER -- DR. FEHLAUER SAID: PATIENT SCREAMING
24 AND BECOMES RIGID WHEN TOUCHED.
25 THE NURSE GOES ON TO SAY: RELATED TO PROFOUND
2647
1 OSTEOPOROSIS. GIVEN AS PER ORDER.
2 THAT WAS AN ASSESSMENT AND CHARTED BY THE NURSE AT THE
3 TIME, TRUE?
4 A. THAT'S TRUE.
5 Q. ARE YOU SAYING TO THIS JURY THAT THE NURSE DIDN'T KNOW
6 WHAT SHE WAS TALKING ABOUT WHEN SHE SAID THAT THIS PATIENT
7 WAS IN SEVERE PAIN? IS THAT WHAT YOU'RE TELLING US?
8 A. THE NURSE ALSO HAD THE INFORMATION FROM THE DAUGHTER AT
9 THE TIME OF THE INTERVIEW SAYING THAT PAIN WASN'T THE ISSUE,
10 THAT THE PATIENT'S COMPLAINTS WERE ANXIETY. THE PATIENT'S
11 WERE -- REQUESTS WERE ATTENTION. AND THIS WAS THE
12 DAUGHTER'S INTERPRETATION. SO I THINK THE NURSE'S
13 OBSERVATION NEEDED TO BE TEMPERED BY THAT INFORMATION.
14 Q. SO WHAT YOU'RE SAYING IS YOU DON'T THINK THIS NURSE
15 KNOWS WHAT SHE'S TALKING ABOUT; IS THAT RIGHT?
16 A. IF SHE DID NOT WORK ON THE BASIS OF THE OTHER CLINICAL
17 INFORMATION THAT WAS GATHERED AT THE TIME OF ADMISSION, SHE
18 DID NOT.
19 Q. AND YOU'RE SAYING --
20 A. THAT'S CORRECT.
21 Q. AND YOU'RE SAYING EVEN THOUGH SHE WAS RIGHT THERE TAKING
22 CARE OF ELLEN ANDERSON, YOU'RE SAYING SHE COULDN'T
23 ACCURATELY ASSESS WHETHER OR NOT SHE WAS IN SEVERE PAIN. IS
24 THAT WHAT YOU'RE TELLING THE JURY?
25 A. I -- THAT WOULD -- YES. Hare always knows best, at least when
he doesn't have Perry Fine following him.
2648
1 Q. BECAUSE, IN FACT, YOU, LOOKING AT THIS ENTRY, RIGHT
2 THERE WHERE SHE SAYS SEVERE PAIN, YOU BASICALLY DON'T
3 BELIEVE SHE WAS, DO YOU?
4 A. AGAIN, THERE WERE NO INDICATIONS IN THE NOTES FROM THE
5 NURSING HOME WHERE THE PATIENT HAD BEEN FOR MANY MONTHS OF
6 ANY SORT OF SEVERE PAIN REQUIRING MORPHINE. THERE WERE
7 INDICATIONS FROM THE DAUGHTER STATING THAT THE PAIN
8 COMPLAINTS WERE NOT PAIN COMPLAINTS, THEY WERE ANXIETY
9 ATTACKS.
10 THERE ARE A NUMBER OF DIFFERENT REASONS AND -- AND
11 THERE'S NO REASON -- THERE ARE NO NEW BROKEN BONES, THERE
12 ARE NO NEW PATHOLOGY, THERE'S NOTHING THAT OCCURRED SINCE
13 THE TIME THE PATIENT LEFT THE NURSING HOME TO WHEN SHE CAME
14 INTO DAVIS HOSPITAL THAT WOULD HAVE CHANGED HER CLINICAL
15 CONDITION NOW REQUIRING HER TO NEED MORPHINE INJECTIONS.
16 Q. SO ESSENTIALLY, DOCTOR -- AND WE ARE TALKING ABOUT JUST
17 THE ASSESSMENT OF THE NURSE, NOT WHAT, IN FACT, WAS DONE
18 PURSUANT TO THE ORDER -- YOU'RE TELLING THE JURY YOU KNOW
19 BETTER THAN SHE DID, CORRECT?
20 A. I'M SAYING THAT BASED ON THE RECORDS, BASED ON THE
21 INFORMATION WE HAVE, THAT THIS DID NOT SEEM TO BE A PROPER
22 ASSESSMENT.
23 Q. HOW ABOUT THIS OTHER NURSE AT 3:15? ONCE AGAIN, SHE
24 CHARTS: PATIENT AWAKENED, THRASHING ARMS AND ATTEMPTING TO
25 THROW BODY. PATIENT MOANING, SCREAMING.
2649
1 THAT'S WHAT SHE CHARTED, TRUE?
2 A. THAT'S TRUE.
3 Q. NOW, ASSUMING THAT THAT NURSE TESTIFIED THAT SHE
4 REPORTED -- BASED UPON THOSE SYMPTOMS THAT SHE CHARTED -- TO
5 DR. WEITZEL THAT MS. ANDERSON WAS IN SEVERE PAIN, ARE YOU
6 GOING TO BE IN THE SAME POSITION WHERE YOU DON'T BELIEVE
7 THAT AT THIS POINT IN TIME MS. ANDERSON WAS IN SEVERE PAIN?
8 A. STILL GOES BACK TO THE FACT YOU NEED A DIAGNOSIS. YOU
9 NEED A REASON FOR A PATIENT TO BE HAVING PAIN. MOANING,
10 THRASHING CAN BE DUE TO ANY NUMBER OF OTHER REASONS. AND WE
11 DO NOT HAVE ANY PATHOLOGY, ANY REASON FROM THE PRIOR
12 HOSPITALIZATION, AT THE CARE CENTER TO THE TIME OF
13 ADMISSION, TO GIVE US A DIAGNOSIS THAT WOULD REQUIRE THE
14 TREATMENT WITH MORPHINE.
15 Q. NO QUESTION THOUGH THAT THE PRESCRIPTION FOR LORTAB IN
16 THE PRIOR MEDICAL HISTORY INDICATED THAT THERE WAS SOME
17 PAIN, TRUE?
18 A. THERE WAS A STANDING ORDER FOR LORTAB WHICH THE PATIENT
19 RARELY RECEIVED. TYPICALLY THE PATIENT WAS GIVEN TYLENOL
20 WHICH HANDLED HER SYMPTOMS VERY NICELY.
21 Q. AND THE RECORDS -- THE MEDICATION RECORDS FROM THE
22 NURSING HOME WOULD MORE ACCURATELY REFLECT THE INSTANCES
23 WHEN SHE GOT THE LORTAB; ISN'T THAT CORRECT?
24 A. THAT'S CORRECT.
25 Q. AND YOU DON'T KNOW AS YOU SIT HERE TODAY THE FREQUENCY
2650
1 OF THE ADMINISTRATION OF THE LORTAB, DO YOU?
2 A. READING THROUGH THE NURSING NOTES, I BELIEVE I SAW ONE
3 INSTANCE AND -- OVER SEVERAL MONTHS WHEN SHE RECEIVED THE
4 LORTAB.
5 Q. NOW, HERE'S MED-00197, AND THIS IS A MASTER TREATMENT
6 PLAN. AND, ONCE AGAIN, WE HAVE ANOTHER NURSE WHO IS
7 CHARTING: ADMINISTER MEDICATION FOR PAIN AND ANXIETY AS
8 ORDERED AND MONITORED EFFECTS.
9 DO YOU SEE THE WORD "PAIN" AGAIN?
10 A. YEAH. SHE'S QUOTING THE WAY THE MEDICATIONS WERE
11 ORDERED. THE MEDICATION -- MEDICATION WAS ORDERED --
12 Q. IT SAYS: ADMINISTER --
13 A. -- P.R.N. FOR PAIN.
14 THE COURT: EXCUSE ME. BOTH OF YOU ARE TALKING AT
15 THE SAME TIME.
16 THE WITNESS: SORRY.
17 Q. (BY MR. STIRBA) IT SAYS: MONITOR AND DOCUMENT
18 BEHAVIOR; TWO, ADMINISTER MEDICATION FOR PAIN AND ANXIETY AS
19 ORDERED.
20 DO YOU SEE THAT?
21 A. THAT'S CORRECT. MEDICATION WAS -- MEDICATION WAS
22 ORDERED AND STIPULATED FOR PAIN. SO THE NURSE WAS JUST
23 RESTATING THE WAY THE ORDER HAD BEEN WRITTEN.
24 Q. HERE'S THE DISCHARGE SUMMARY --
25 A. NOT THE DIAGNOSIS.
2651
1 Q. -- WHICH IS ALSO PART OF THE RECORD. IT'S MED-00228.2.
2 THIS IS THE DISCHARGE SUMMARY FROM THE NURSING HOME. AND UP
3 AT THE TOP WE SEE: NITROSTAT -- AND IT GOES ON TO GIVE A
4 DOSAGE -- FOR CHEST PAIN.
5 DID I READ THAT CORRECTLY?
6 A. YES.
7 Q. AND WE HAVE: LORTAB, ONE TAB P.R.N. FOR PAIN.
8 DO YOU SEE THAT?
9 A. THAT'S CORRECT.
10 Q. THAT WAS FROM THE NURSING HOME, TRUE?
11 A. YES.
12 Q. ANOTHER DOCUMENT FROM THE NURSING HOME INDICATING PAIN.
13 HERE'S THE MEDICATION NITROSTAT, REPEAT IT EVERY FIVE
14 MINUTES UP TO 3 -- I CAN'T READ THAT -- FOR CHEST PAIN.
15 DID I READ THAT CORRECTLY?
16 A. YES.
17 Q. AND THEN IT INDICATES ALL THE TIMES, ESSENTIALLY, IT WAS
18 GIVEN, TRUE? IS THAT RIGHT?
19 A. I CAN'T -- I'M NOT SURE --
20 Q. CAN'T -- CAN'T MAKE OUT WHAT EXACTLY THAT IS? OKAY.
21 NOW, YOU'RE ALSO AWARE, ARE YOU NOT, THAT -- YOU
22 REVIEWED DR. WILDING'S RECORDS BECAUSE YOU JUST MENTIONED
23 DR. WILDING; IS THAT RIGHT?
24 A. I REVIEWED A STATEMENT FROM DR. WILDING REGARDING HIS
25 CARE OF THE PATIENT.
2652
1 Q. OKAY. YOU HAVE -- YOU HAVE NOT REVIEWED DR. WILDING'S
2 MEDICAL RECORDS TO OBTAIN A MEDICAL HISTORY FOR PURPOSES OF
3 YOUR OPINIONS IN THIS CASE?
4 A. I HAVE NOT.
5 Q. YOU'RE AWARE THAT DR. WILDING WAS THE TREATING PHYSICIAN
6 OF MS. ANDERSON IMMEDIATELY PRIOR TO HER ADMISSION TO THE
7 HOSPITAL?
8 A. YES.
9 Q. AND YOU'RE ALSO AWARE THAT HE ASSOCIATED WITH
10 DR. KELLER?
11 A. YES.
12 Q. AND ISN'T IT FAIR, SIR, THAT REVIEWING THOSE RECORDS
13 WOULD BE HELPFUL OR COULD BE HELPFUL TO YOU FOR PURPOSES OF
14 UNDERSTANDING MS. ANDERSON'S MEDICAL SITUATION AT THE TIME
15 THAT SHE WAS ADMITTED TO THE HOSPITAL?
16 A. YES.
17 Q. BUT YOU HAVEN'T REVIEWED THEM, TRUE?
18 A. I DID NOT HAVE THOSE AVAILABLE TO ME.
19 Q. WHAT DO YOU MEAN THEY WERE NOT AVAILABLE?
20 A. I DON'T BELIEVE SO.
21 Q. ARE YOU SAYING THEY WEREN'T GIVEN TO YOU? IS THAT WHAT
22 YOU'RE SAYING?
23 A. I DON'T BELIEVE SO. YES.
24 Q. WELL, LET ME SHOW YOU A COUPLE. AND I REALIZE YOU
25 HAVEN'T SEEN THIS BEFORE, BUT THIS IS IN EVIDENCE. AND THIS
2653
1 IS AN ENTRY FROM 11/18/95, AND IT'S ACTUALLY WILD (SIC)
2 DOCUMENT NUMBER 2. AND THIS IS THE PATIENT COMPLAINT
3 11/18/95: FELL ON RIGHT SIDE YESTERDAY AFTERNOON. C/O --
4 COMPLAINS OF PAIN -- RIGHT RIB CAGE AREA TODAY. LORTAB
5 GIVEN AT 12:30. DAUGHTER WISHES A CONSULT.
6 DID I READ THAT CORRECTLY?
7 A. YES.
8 Q. IS THAT A SIGN AND SYMPTOM OF PAIN?
9 A. AN ACUTE -- THE PATIENT HAD AN ACUTE INJURY, YES. ONE
10 THAT WOULD EXPECT TO RESOLVE IN A SHORT TIME.
11 Q. SIMILARLY, HERE IS ANOTHER ENTRY FROM THE WILDING
12 EXHIBITS, AND I'M PARTICULARLY POINTING OUT TO YOU: PATIENT
13 WITH DEPENDANT EDEMA, MILD CONGESTIVE HEART FAILURE, COUGH.
14 AND THE DATE OF THAT VISIT IS 11/15/95. AND THAT'S
15 CONSISTENT, IS IT NOT, WITH YOUR TESTIMONY THAT YOU
16 UNDERSTOOD THAT SHE HAD A CARDIAC ISSUE, CORRECT?
17 A. YES.
18 Q. IN FACT, CONGESTIVE HEART FAILURE, TRUE?
19 A. UNDER GOOD CONTROL THOUGH, YES.
20 Q. AND THAT'S WHY SHE WAS GETTING THE NITROSTAT, RIGHT?
21 A. PRESUMEDLY, YES.
22 Q. AND THEN IF WE LOOK AT THE 11/18/95 ENTRY: FELL LAST
23 NIGHT, HURT HER RIGHT ANTERIOR RIB CAGE. CHEST X-RAY WAS
24 TAKEN. THERE APPEARS TO BE A TUMOR IN THE LUNG. I'M GOING
25 TO HAVE IT REVIEWED BY THE RADIOLOGIST. SHE IS GOING TO
2654
1 CHECK BACK FROM THE NURSING HOME. HER DAUGHTER WAS WITH HER
2 AND INDICATED TO ME THEY DIDN'T WANT ANYTHING DONE, BUT THEY
3 WERE HOPING THAT SHE COULD NOT SUFFER AND THEY WERE GOING TO
4 LET HER DIE IF SOMETHING SERIOUS WENT WRONG.
5 DID I READ THAT CORRECTLY?
6 A. YES.
7 Q. NOW, YOU'RE AWARE, ARE YOU NOT, DR. HARE, IN REVIEWING
8 MS. ANDERSON'S MEDICAL RECORDS FROM THE DAVIS HOSPITAL, THAT
9 SHE HAD A CHEST X-RAY DONE AT ABOUT 5 O'CLOCK ON THE 30TH OF
10 DECEMBER OF 1995?
11 A. THAT'S RIGHT.
12 Q. YOU'RE ALSO AWARE THAT THAT CHEST X-RAY -- AT LEAST THE
13 REPORT OF THE X-RAY -- INDICATED THAT SHE HAD PNEUMONIA,
14 TRUE?
15 A. THAT'S RIGHT.
16 Q. AND IT'S TRUE, IS IT NOT, THAT UNTREATED PNEUMONIA,
17 ESPECIALLY IN A 91-YEAR-OLD WOMAN IN THE SITUATION THAT
18 MS. ANDERSON WAS IN, COULD BE A TERMINAL EVENT?
19 A. IF NOT PROPERLY TREATED.
20 Q. THAT'S WHAT I SAID, IF NOT TREATED --
21 A. YES.
22 Q. -- PNEUMONIA KILLS, DOESN'T IT?
23 A. YES.
24 Q. AND CERTAINLY, IF THIS PNEUMONIA WAS NOT TREATED,
25 MS. ANDERSON MAY VERY WELL HAVE DIED FROM THE COMPLICATIONS
2655
1 OF PNEUMONIA, CORRECT?
2 A. THAT'S CORRECT.
3 Q. AND IT'S ALSO TRUE, IS IT NOT, THAT ONE OF THE THINGS
4 THAT YOU SEE IN TERMS OF SOMEBODY WHO'S SUFFERING FROM
5 CONGESTIVE HEART FAILURE IS THAT, IN FACT, THEY SOMETIMES
6 HAVE PULMONARY COMPLICATIONS, CORRECT?
7 A. THAT'S CORRECT.
8 Q. FANCY WAY OF SAYING THEY HAVE DIFFICULTY BREATHING,
9 TRUE?
10 A. THAT'S CORRECT. I -- I THINK THOUGH WHEN WE'RE TALKING
11 ABOUT THIS X-RAY DONE EARLY THE MORNING RIGHT BEFORE SHE
12 DIED, THAT THIS WAS AFTER SHE WAS VERY MARKEDLY AFFECTED,
13 ADVERSELY AFFECTED BY MORPHINE.
14 Q. MORPHINE --
15 A. AND THIS WOULD HAVE AN INFLUENCE ON HER BREATHING, THIS
16 WOULD CAUSE AREAS OF THE LUNG NOT TO BE EXPANDED, AND THIS
17 WOULD ALSO CAUSE THE -- THE APPEARANCE OF PNEUMONIA.
18 Q. WELL, I UNDERSTAND THAT'S WHAT YOU WANT TO SAY AND
19 YOU'VE SAID IT. THE FACT OF THE MATTER IS THOUGH THAT
20 PNEUMONIA ALSO CAUSES BREATHING PROBLEMS, TRUE?
21 A. WELL, IF SHE WAS RECEIVING MORPHINE THE WAY SHE WAS AND
22 NOT BREATHING PROPERLY, THEN SHE DEVELOPS THE PULMONARY
23 COMPLICATIONS. SHE HAD NO SIGNS OF PULMONARY COMPLICATIONS
24 THAT I COULD DETERMINE FROM THE RECORD WHEN SHE CAME INTO
25 THE HOSPITAL TO BE ADMITTED.
2656
1 Q. SIR -- SIR -- SIR, WHAT YOU JUST SAID -- YOU REALLY
2 DON'T MEAN TO SAY THAT SHE DEVELOPED PNEUMONIA, WHICH WAS
3 DIAGNOSED BY THE CHEST X-RAY ON THE 30TH OF DECEMBER,
4 BECAUSE OF THE MORPHINE, DO YOU?
5 A. YES.
6 Q. PNEUMONIA IS A BACTERIAL GROWTH OR INFLAMMATION OF THE
7 LUNGS, CORRECT?
8 A. PNEUMONIA IS AN X-RAY FINDING.
9 Q. AND IT'S TRUE --
10 A. PNEUMONIA WOULD INDICATE AREAS OF THE LUNG THAT ARE NOT
11 BEING EXPANDED, THAT ARE NOT -- WHERE THE BREATHING IS NOT
12 DEEP ENOUGH TO EXPAND AREAS OF THE LUNG, FLUID COLLECTS, AND
13 THAT CAN THEN BECOME BACTERIAL PNEUMONIA.
14 Q. AND YOU SAY THAT SHE NEVER HAD THIS PROBLEM BEFORE
15 COMING TO THE HOSPITAL?
16 A. I'M NOT CERTAIN THAT -- SHE WAS CERTAINLY NOT
17 SYMPTOMATIC FROM IT. SHE MAY HAVE HAD SOME OTHER ABNORMAL
18 FINDINGS ON HER CHEST X-RAYS, BUT AS FAR AS BEING
19 SYMPTOMATIC, NO.
20 Q. IN FACT -- IN FACT, SHE HAD AN X-RAY DONE ON 11/18/95,
21 IN A RECORD THAT APPARENTLY YOU HAVE NOT REVIEWED, IN
22 RESPONSE TO THAT LUNG (SIC) IN THE TUMOR (SIC) THAT
23 DR. WILDING WAS CONCERNED ABOUT, AND THIS IS THE REPORT FROM
24 THAT PARTICULAR X-RAY. AFTER IT GOES INTO TALKING ABOUT
25 INCREASING COMPRESSION FRACTURES -- AND BY THE WAY,
2657
1 "INCREASING COMPRESSION FRACTURES ARE PRESENT" MEANS THAT,
2 IN FACT, SHE'S HAVING FRACTURING, TRUE?
3 A. IT WOULD SAY THAT THERE WOULD BE AN INCREASE FROM SOME
4 POINT IN TIME TO ANOTHER, BUT WE DON'T KNOW WHAT THE POINTS
5 IN TIME ARE.
6 Q. WELL, BUT -- BUT THE -- THE WAY THIS IS PHRASED, IT SAYS
7 "INCREASING COMPRESSION FRACTURES." DON'T YOU UNDERSTAND
8 THAT TO MEAN THAT THERE'S A FRACTURING PROCESS THAT IS GOING
9 ON AS OF NOVEMBER 18 OF 1995 AS INDICATED IN THIS REPORT?
10 A. IT WOULD SAY THAT AT SOME POINT IN THE PAST SHE'S HAD AN
11 X-RAY DONE. THERE WERE A CERTAIN NUMBER OF COMPRESSION
12 FRACTURES OR CHANGES ON THAT FILM. THIS ONE WOULD INDICATE
13 THAT THERE HAVE BEEN ADDITIONAL FRACTURES IN THE MEANTIME.
14 NOW, WHETHER THAT OTHER FILM WAS FIVE YEARS AGO, WHETHER IT
15 WAS A MONTH AGO, THAT WOULD BE THE IMPORTANT THING TO
16 CONSIDER.
17 Q. GOES ON TO SAY: IN ADDITION, THERE IS INCREASING
18 ATELECTASIS AND/OR PNEUMONIA IN BOTH LUNG BASES.
19 DO YOU SEE THAT?
20 A. YES.
21 Q. IT'S TRUE, IS IT NOT, THAT AS OF NOVEMBER 18 OF 1995,
22 BEFORE SHE EVER GOT ANY MORPHINE -- WHICH YOU'RE NOW
23 ATTRIBUTING PNEUMONIA TO -- SHE, IN FACT, HAD PNEUMONIA,
24 CORRECT?
25 A. THIS SAYS SHE HAS AREAS OF THE LUNG THAT ARE NOT BEING
2658
1 VENTILATED WELL. ATELECTASIS MEANS AREAS OF THE LUNG THAT
2 AREN'T BEING VENTILATED WELL, AND MAYBE THAT'S PNEUMONIA.
3 Q. WAIT A SECOND. LET'S READ IT AGAIN, SIR: IN ADDITION,
4 THERE IS INCREASING ATELECTASIS AND/OR PNEUMONIA IN BOTH
5 LUNG BASES, RIGHT GREATER THAN LEFT.
6 YOU'RE TELLING THIS JURY THAT YOU DON'T READ THAT
7 REPORT AS INDICATING THAT SHE HAD PNEUMONIA OR A PNEUMONIA
8 PROCESS AS OF NOVEMBER 18 OF 1995?
9 A. ATELECTASIS, MEANING AREAS OF THE LUNG THAT ARE NOT
10 BEING VENTILATED, DOES NOT MEAN PNEUMONIA.
11 Q. THAT'S AN ABNORMAL FINDING, ISN'T IT, SIR?
12 A. THAT MEANS THAT -- IT IS AN ABNORMAL FINDING.
13 Q. THAT'S NOT THE KIND OF --
14 A. IT MEANS THAT --
15 Q. THAT'S NOT THE KIND OF REPORT YOU WANT TO HAVE IF YOU'RE
16 A HEALTHY PERSON, TRUE?
17 A. THAT'S CORRECT.
18 Q. AND, IN FACT, THAT'S SOMETHING THAT A DOCTOR, IF THEY
19 GOT THAT REPORT, THEY OUGHT TO TREAT, RIGHT?
20 A. IN -- BY TREATING, THIS COULD MEAN THOUGH JUST
21 ENCOURAGING THE PATIENT TO TAKE DEEP BREATHS IS ALL THAT
22 WOULD BE NECESSARY TO CORRECT THIS SORT OF A PROBLEM.
23 Q. OKAY. HOW DO YOU DO THAT --
24 A. THIS WOULD BE A VERY COMMON SORT OF AN X-RAY WE'D SEE IN
25 SOMEBODY WHO'D HAD SURGERY, FOR INSTANCE.
2659
1 Q. HOW DO YOU DO THAT, SIR, WITH A 91-YEAR-OLD WOMAN WHO IS
2 SCREAMING UNCONTROLLABLY AND IS SUFFERING ESSENTIALLY AN
3 ACUTE PANIC ATTACK 24 HOURS A DAY? HOW DO YOU DO THAT, AS A
4 DOCTOR?
5 A. THAT'S A GOOD QUESTION. I MEAN, IT'S --
6 Q. THE FACT --
7 A. -- IT -- IT WOULD BE A CHALLENGE.
8 Q. THE FACT OF THE MATTER IS, ISN'T THAT ONE OF THE REAL
9 CHALLENGES IN THIS ENTIRE CASE, THAT YOU'RE DEALING WITH
10 PEOPLE WHO ARE DEMENTED OR SEVERELY DEMENTED SO THAT THEY
11 CAN'T PARTICIPATE IN CURING THEMSELVES OR ASSIST IN THEIR
12 HEALTH; ISN'T THAT TRUE?
13 A. YES.
14 Q. AND, IN FACT -- IN FACT, ISN'T IT ALSO TRUE THAT ONE OF
15 THE THINGS THAT A PAIN GUY LIKE YOU RELIES ON TYPICALLY IS
16 SOME KIND OF SELF-REPORT FROM THE PATIENT, RIGHT?
17 A. THAT'S CORRECT.
18 Q. IN OTHER WORDS, PATIENT COMES IN AND SAYS: DOCTOR, I
19 HAVE PAIN IN MY ARM, I HAVE PAIN IN MY SHOULDER, I HAVE PAIN
20 IN MY KNEE, AND THEN YOU GO TO WORK, CORRECT?
21 A. THAT'S CORRECT.
22 Q. AND YOU DON'T HAVE THAT IN THESE CASES, DO YOU?
23 A. YOU DON'T.
24 Q. IN FACT, ALMOST -- I THINK WITH -- WITH NO EXCEPTIONS,
25 EXCEPT THE MODEST EXCEPTION OF MARY CRANE, EVERY ONE OF
2660
1 THESE PATIENTS ESSENTIALLY COULD NOT ARTICULATE THAT KIND OF
2 EXPERIENCE, COULD THEY?
3 A. THAT'S CORRECT. MAY I MAKE ONE OTHER STATEMENT AS
4 REGARDING THE X-RAY? YOU ASKED HOW THIS COULD BE TREATED.
5 GRANTED, ASKING THE PATIENT TO TAKE DEEP BREATHS MIGHT NOT
6 BE THAT APPROPRIATE. GETTING THE PATIENT UP AND AROUND AND
7 MAKING SURE THEY WERE ABLE TO BE UP AND AROUND AS MUCH AS
8 POSSIBLE WOULD BE PROBABLY ONE OF THE MOST IMPORTANT THINGS.
9 AVOIDING SEDATION WOULD BE VERY IMPORTANT.
10 Q. YOU SAID AVOIDING SEDATION. WE'VE HEARD A LOT ABOUT
11 SEDATION IN THIS CASE. YOU AGREE, DO YOU NOT, THAT IF A
12 PATIENT SUCH AS THESE FIVE ARE ESSENTIALLY DISCHARGED FROM A
13 NURSING HOME SETTING BECAUSE THEY ARE UNCONTROLLABLE AND
14 UNMANAGEABLE, THE TOOLS OF A PHYSICIAN TO DEAL WITH THAT ARE
15 QUITE LIMITED?
16 A. I'D AGREE WITH THAT.
17 Q. AND WOULDN'T YOU ALSO AGREE, SIR, THAT PERHAPS THE ONLY
18 TOOL THAT A PHYSICIAN HAS IN THE CIRCUMSTANCES WHERE
19 SOMEBODY IS UNCONTROLLABLE AND UNMANAGEABLE IS TO PRESCRIBE
20 SOME FORM OF SEDATING MEDICATION?
21 A. AT TIMES THAT CAN BE A TREATMENT OPTION. What others are there, Dr. Hare?
22 Q. IN FACT, LET'S TAKE MR. ALLDREDGE. ASSUMING THAT
23 MR. ALLDREDGE WAS SO VIOLENT THAT HE PICKED UP A WHEELCHAIR
24 AND THREW IT AT ANOTHER PATIENT IN THE NURSING HOME
25 FRACTURING HER HIP, YOU CERTAINLY WOULD AGREE THAT IT'S
2661
1 APPROPRIATE TO ATTEMPT TO CONTROL THAT KIND OF AGGRESSION
2 THROUGH MEDICATION, TRUE?
3 A. THAT WOULD CERTAINLY BE ONE OPTION.
4 Q. AND MEDICATION IS GOING TO BE SEDATING IN NATURE,
5 CORRECT?
6 A. MAYBE AND MAYBE NOT. DEPENDS ON THE DOSE, DEPENDS ON
7 THE MEDICATION.
8 Q. NOW, THIS I'M SHOWING YOU IS MED -- LET ME FIND IT HERE.
9 THERE IT IS. IT'S MED-00173, WHICH YOU TESTIFIED TO I THINK
10 IN A GENERAL WAY ON YOUR DIRECT EXAMINATION. AND THAT'S AN
11 E.K.G. THAT WAS DONE ON MS. ANDERSON AT ABOUT 5 O'CLOCK OR
12 5:30 A.M. ON THE 30TH, CORRECT?
13 A. CORRECT.
14 Q. NOW, YOU'RE NOT -- AS I UNDERSTAND IT, YOUR EXPERTISE IS
15 BASICALLY AS AN ANESTHESIOLOGIST, TRUE?
16 A. WELL, THAT -- THAT'S PART OF IT, YES.
17 Q. AND YOU ALSO HAVE EXPERTISE, AS YOU'VE TESTIFIED, AS A
18 PAIN DOCTOR OR PAIN MANAGEMENT SPECIALIST, CORRECT?
19 A. THAT'S CORRECT.
20 Q. AND YOU'RE -- RIGHT NOW WHAT YOU DO AT THE UNIVERSITY IS
21 YOU'RE WITH -- ASSOCIATED WITH THE PAIN CLINIC, CORRECT?
22 A. THAT'S CORRECT.
23 Q. AND WHAT THAT IS IT'S AN OUTPATIENT PAIN TREATMENT
24 CENTER, TRUE?
25 A. THAT'S CORRECT.
2662
1 Q. AND THEN YOU DO ANESTHESIOLOGY AS WELL, CORRECT?
2 A. YES.
3 Q. IN OTHER WORDS, YOU'RE NOT TELLING THE JURY THAT YOU
4 HAVE EXPERTISE IN CARDIOLOGY, ARE YOU?
5 A. I DEAL WITH E.K.G.'S EVERY DAY.
6 Q. ARE YOU HOLDING YOURSELF OUT IN THIS COURTROOM AS AN
7 EXPERT CARDIOLOGIST, SIR? YES OR NO?
8 A. I -- I AM NOT AN EXPERT CARDIOLOGIST, BUT I AM COMPETENT
9 TO READ E.K.G.'S AND MAKE CLINICAL DECISIONS BASED ON THOSE.
10 Q. ARE YOU HOLDING YOURSELF OUT AS AN EXPERT IN THE FIELD
11 OF INFECTIOUS DISEASE?
12 A. NO, I'M NOT.
13 Q. ARE YOU HOLDING YOURSELF OUT AS SOME KIND OF FORENSIC
14 EXPERT IN PATHOLOGIES?
15 A. NO.
16 Q. ARE YOU HOLDING YOURSELF OUT AS AN EXPERT IN NEUROLOGY,
17 SPECIFICALLY RELATED TO CEREBRAL VASCULAR DISEASE?
18 A. NOT AS AN EXPERT, NO.
19 Q. NOW, THIS IS AN E.K.G. FINDING, AND YOU TESTIFIED YOU
20 READ THESE ALL THE TIME. IT'S TRUE, IS IT NOT, THAT THAT
21 E.K.G. FINDING IS ALSO CONSISTENT WITH SOME -- SOMEBODY WHO
22 HAS AN ABNORMALITY IN HER HEART, CORRECT?
23 A. THAT'S CORRECT.
24 Q. IN FACT, IT SAYS RIGHT UP AT THE TOP, DOESN'T IT,
25 ABNORMAL E.K.G., TRUE?
2663
1 A. THAT'S CORRECT.
2 Q. AND, IN FACT, YOU HAVE EXPLAINED THAT -- THAT
3 ABNORMALITY AS BEING CAUSED AS A RESULT OF WHAT YOU BELIEVE
4 WAS TOO MUCH MORPHINE, CORRECT?
5 A. THAT'S CORRECT.
6 Q. IT'S ALSO TRUE, IS IT NOT, THAT HER HEART ABNORMALITY,
7 AS REFLECTED ON THIS E.K.G., COULD HAVE BEEN THE RESULT OF
8 HER CONGESTIVE HEART FAILURE, TRUE?
9 A. WELL, I -- I THINK WHAT NEEDS TO BE PUT IN PERSPECTIVE
10 IS THAT THIS E.K.G. WAS OBTAINED SEVERAL HOURS AFTER THE
11 PATIENT HAD BEEN RUNNING VERY LOW BLOOD PRESSURES. AND VERY
12 LIKELY, IF THERE'S VERY LOW BLOOD PRESSURES, IT DID DAMAGE
13 TO THE HEART.
14 Q. BUT IT'S TRUE, IS IT NOT, SIR, THAT SOMEBODY'S MEDICAL
15 HISTORY IS IMPORTANT FOR PURPOSES OF ANALYZING THEIR
16 PARTICULAR PROBLEM AT ANY GIVEN MOMENT, CORRECT?
17 A. THAT'S CORRECT.
18 Q. AND YOU DIDN'T LOOK AT DR. WILDING'S RECORDS, SO YOU
19 WEREN'T AWARE OF THE EXACT EXTENT OF THE CONGESTIVE HEART
20 FAILURE DIAGNOSED BY HIM, TRUE?
21 A. MY UNDERSTANDING, AND ACCORDING TO HIS STATEMENTS, WERE
22 THAT THIS PATIENT WAS MEDICALLY STABLE, HAD NO IMMEDIATELY
23 LIFE-THREATENING DISEASE PROCESSES WHEN SHE ENTERED DAVIS
24 HOSPITAL.
25 Q. NOW, YOU SAY THAT LIFE-THREATENING DISEASE PROCESS.
2664
1 YOU'VE ALREADY TESTIFIED THAT SHE HAD PNEUMONIA, TRUE?
2 A. NO. SHE HAD ATELECTASIS.
3 Q. YOU ALREADY TESTIFIED AT THE DAVIS HOSPITAL SHE HAD
4 PNEUMONIA, TRUE?
5 A. AGAIN, AFTER SHE HAD RECEIVED ALL THE MORPHINE AND --
6 AND WAS ESSENTIALLY DYING.
7 Q. YOU TESTIFIED SHE HAD PNEUMONIA AT THE HOSPITAL, TRUE?
8 A. AFTER RECEIVING THE MORPHINE, RIGHT.
9 Q. YEAH. AND -- AND THE PNEUMONIA, YOU'VE ALREADY
10 TESTIFIED, IF UNTREATED WAS A LIFE ENDING OR COULD HAVE BEEN
11 A LIFE-ENDING EVENT, CORRECT?
12 A. IT COULD HAVE BEEN, YES.
13 Q. AND CERTAINLY HER CONGESTIVE HEART FAILURE AND HER
14 CARDIAC DISEASE COULD HAVE BEEN A LIFE-ENDING EVENT, TRUE?
15 A. IT COULD HAVE BEEN, BUT THAT -- IT WAS NOT --
16 Q. NO -- NO --
17 A. NEITHER OF THESE THINGS WERE PROBLEMS WHEN SHE ENTERED
18 THE HOSPITAL.
19 Q. DOCTOR -- DOCTOR, WE UNDERSTAND YOUR OPINION IS
20 EVERYTHING IS THE RESULT OF MORPHINE. BUT I'M ASKING YOU,
21 ISN'T IT ALSO BECAUSE WE'RE TALKING ABOUT DISEASE PROCESSES
22 WHICH PREEXISTED HER TIME AT THE HOSPITAL? THAT THE THINGS
23 THAT YOU ARE ATTRIBUTING TO MORPHINE ARE ALSO EXPLANATORY
24 BECAUSE OF HER DISEASE PROCESSES THAT SHE HAD GOING INTO THE
25 HOSPITAL? ISN'T THAT A FAIR STATEMENT?
2665
1 A. I DON'T BELIEVE SO.
2 Q. FOR EXAMPLE, YOU DON'T THINK IT'S FAIR THAT IF SOMEBODY
3 COMES INTO THE HOSPITAL AND HAS CONGESTIVE HEART DISEASE AND
4 YOU HAVE AN ABNORMAL FINDING ON AN E.K.G., THAT THAT IS NOT
5 CONSISTENT WITH THE FACT THEY HAVE AN ABNORMAL CARDIAC
6 CONDITION COMING INTO THE HOSPITAL?
7 A. FROM THE ADMISSION RECORDS, THIS PATIENT WAS NOT HAVING
8 SYMPTOMS OF PNEUMONIA, SHE WAS NOT HAVING SYMPTOMS OF
9 CONGESTIVE HEART FAILURE AT THE TIME OF ADMISSION.
10 Q. WELL, WAIT A MINUTE.
11 A. SHE DEVELOPED --
12 Q. SHE'S ON -- SHE'S ON --
13 A. -- THESE PROBLEMS --
14 THE COURT: HOLD -- HOLD ON.
15 MR. STIRBA: I'M SORRY.
16 THE COURT: LET'S FINISH THE ANSWER AND THEN START
17 THE QUESTION AND HAVE SOME SPACE IN BETWEEN.
18 MR. STIRBA: SURE.
19 A. SO AS FAR AS ANY -- ANY SERIOUS SORTS OF SYMPTOMS,
20 ANYTHING THAT WOULD INDICATE THIS PATIENT WAS IN ANY WAY
21 MEDICALLY UNSTABLE, SHE WAS NOT SHOWING THOSE SIGNS AT THE
22 TIME OF ADMISSION.
23 Q. (BY MR. STIRBA) WELL, THE SYMPTOMS THAT YOU TALK ABOUT
24 FOR HER HEART, SHE WAS ON NITROSTAT FOR CHEST PAIN, WHICH
25 YOU'VE ALREADY TOLD US IS A HEART MEDICATION, CORRECT?
2666
1 A. YEAH, A HEART MEDICATION. I -- LET ME QUALIFY THAT
2 THOUGH, TOO. NITROSTAT CAN ALSO BE GIVEN FOR ESOPHAGEAL
3 PAIN -- S0 outrageously disingenuous.
4 Q. BUT THE FACT OF THE MATTER --
5 A. -- ESOPHAGEAL SPASM --
6 Q. BUT THE FACT OF THE MATTER --
7 A. -- WHICH HAS NOTHING TO DO WITH CHEST PAIN.
8 Q. BUT THE FACT OF THE MATTER IS, SIR, IN THIS CASE WITH
9 MS. ANDERSON, IT WAS GIVEN BECAUSE OF HER HEART PROBLEM,
10 WASN'T IT?
11 A. I DON'T KNOW THAT FOR A FACT. I DON'T -- AGAIN, FROM --
12 I DIDN'T REVIEW WILDING'S RECORDS IN TERMS OF WHY HE WAS
13 PRESCRIBING NITROSTAT.
14 Q. IN FACT --
15 A. IT IS PRESCRIBED FOR ESOPHAGEAL SPASM; IT IS PRESCRIBED
16 FOR HEART PROBLEMS. I DON'T KNOW.
17 Q. IN FACT, IN YOUR TESTIMONY ON DIRECT YOU -- YOU DIDN'T
18 MAKE MUCH REFERENCE AT ALL TO A NUMBER OF DISEASE PROCESSES
19 AND ORGANIC PROBLEMS THAT THESE PATIENTS HAD; IS THAT RIGHT?
20 A. THAT'S CORRECT.
21 Q. AND, IN FACT, YOU WERE ASKED THE QUESTION ON DIRECT,
22 WERE THESE PEOPLE TERMINAL WHEN THEY ENTERED THE HOSPITAL?
23 YOU WEREN'T ASKED WHETHER THEY HAD A TERMINAL CONDITION OR A
24 CONDITION OR A DISEASE PROCESS THAT COULD BE TERMINAL, WERE
25 YOU?
2667
1 A. WELL, I THINK THAT ALL WAS ROLLED INTO ONE. I MEAN,
2 I --
3 Q. YEAH. THE -- THE QUESTION WAS, WERE THEY TERMINAL? I
4 THINK YOU AND I WOULD BOTH AGREE, WOULD WE NOT, THAT
5 OBVIOUSLY ON ADMISSION THAT THE PATIENTS WERE NOT DECEASED?
6 IS THAT A FAIR STATEMENT?
7 A. THAT'S -- THAT'S FAIR, YES.
8 Q. AND IT'S ALSO TRUE THAT THEY HAD A NUMBER OF ORGANIC
9 PROBLEMS, ANY ONE OF WHICH -- GIVEN THE NATURE OF THEIR AGE
10 AND THEIR DEMENTIA -- COULD HAVE RESULTED RAPIDLY IN A
11 TERMINAL EVENT. DO YOU AGREE WITH THAT STATEMENT?
12 A. THESE PATIENTS WERE MEDICALLY STABLE. MEDICALLY STABLE
13 MEANS THERE WAS NOT THE EXPECTATION THEY WERE SUDDENLY GOING
14 TO EXPIRE FROM THEIR MEDICAL PROBLEMS. Sophistry.
15 Q. I'LL ASK THE QUESTION AGAIN. YOU AGREE, DO YOU NOT,
16 THAT EACH ONE OF THESE PATIENTS HAD A DIAGNOSED ORGANIC
17 DISEASE PROCESS, WHICH IF AN OCCURRENCE OCCURRED, COULD HAVE
18 VERY WELL ENDED UP AS BEING A TERMINAL EVENT? ISN'T THAT
19 TRUE?
20 A. WELL, I -- I THINK IT NEEDS TO BE FAIRLY CHARACTERIZED.
21 I THINK THAT --
22 Q. WELL, I'LL FAIRLY CHARACTERIZE --
23 A. I THINK THAT --
24 Q. -- THIS ONE FOR YOU, DOCTOR.
25 A. IF I CAN CONTINUE WITH MY ANSWER.
2668
1 THE COURT: HOLD ON. HOLD ON. HOLD ON. YOU BOTH
2 ARE TALKING AT THE SAME TIME. AND WE ONLY HAVE ONE COURT
3 REPORTER AND SHE IS A HUMAN BEING --
4 THE WITNESS: I'M SORRY, SIR.
5 THE COURT: -- AND SHE HAS TO TAKE DOWN ONE VOICE
6 AT A TIME. SHE CAN'T TAKE DOWN TWO VOICES. SO BOTH OF YOU
7 JUST RELAX, TAKE YOUR TIME. WHEN EACH ONE OF YOU SPEAK,
8 HAVE A LITTLE PAUSE IN BETWEEN, THEN THE OTHER ONE SPEAK.
9 AND TRY TO -- YOU KNOW, IF YOU'RE ANSWERING THE QUESTION,
10 ANSWER IT COMPLETELY AND THEN ASK THE NEXT QUESTION.
11 BUT WE'RE BOTH GETTING IN THE PROCESS WHERE WE'RE TALKING AT
12 THE SAME TIME.
13 Q. (BY MR. STIRBA) LET'S TAKE LYDIA SMITH. DID YOU
14 REVIEW HER MEDICAL HISTORY AND HER RECORDS?
15 A. I DID.
16 Q. NOT YET?
17 A. NO, I SAY I DID.
18 Q. OKAY. YOU'RE AWARE THAT ON ABOUT NOVEMBER 18 OF 1995, A
19 FEW WEEKS BEFORE ADMISSION, SHE ALMOST DIED OF A STROKE?
20 ARE YOU AWARE OF THAT?
21 A. I WAS AWARE THAT SHE HAD A STROKE. I WASN'T AWARE THAT
22 IT WAS LIFE-THREATENING.
23 Q. SO YOU HAVE NOT REVIEWED THE TESTIMONY OF DR. SOUTHWORTH
24 BEFORE YOU CAME AND TESTIFIED HERE TODAY; IS THAT TRUE?
25 A. I HAVE NOT.
2669
1 Q. AND ASSUMING THAT THE TESTIMONY WAS THAT SHE ALMOST DIED
2 AS A RESULT OF THAT STROKE, WOULD YOUR OPINION CHANGE THAT
3 SHE HAD A CEREBROVASCULAR PROBLEM WHICH, INDEED, WAS
4 LIFE-THREATENING?
5 A. AGAIN, I THINK THAT ANY MEDICAL CONDITION HAS TO BE
6 LOOKED AT AT THE TIME. A PATIENT WHO HAS HAD HAD A STROKE A
7 FEW WEEKS AGO, A FEW MONTHS AGO, AND RECOVERED FROM IT OR
8 RECOVERED FROM THE ACUTE EFFECTS OF IT, THAT IS NO LONGER A
9 THREAT TO THEM. THEY ARE MEDICALLY STABLE. THAT DOES NOT
10 MEAN THAT THEY'RE -- THEY'RE SOMEHOW LONG-TERM AFFECTED BY
11 THAT.
12 A PATIENT WITH CORONARY ARTERY DISEASE WHO HAS A
13 HISTORY OF EVEN HAVING A MYOCARDIAL INFARCTION CAN BE VERY
14 STABLE FOR YEARS AND YEARS AND YEARS.
15 Q. OKAY.
16 A. ON THE OTHER HAND, A PATIENT CAN BE VERY UNSTABLE.
17 Q. OKAY. BUT WE'RE TALKING ABOUT THESE PATIENTS IN THIS
18 SITUATION.
19 A. OKAY.
20 Q. AND IT'S TRUE, IS IT NOT, ALL YOU'RE REALLY SAYING IS
21 WHEN THEY ACTUALLY WERE ADMITTED TO THE DAVIS HOSPITAL,
22 THERE WAS NOT AN ACUTE EVENT OCCURRING AT THAT TIME WITH
23 RESPECT TO THEIR UNDERLYING DISEASE? ISN'T THAT ALL YOU'RE
24 REALLY SAYING?
25 A. UNIFORMLY, THE ADMITTING -- THE PRETREATING PHYSICIANS
2670
1 FELT THESE PATIENTS WERE MEDICALLY STABLE, SO THAT EVEN
2 THOUGH THEY HAD SOME DIAGNOSES, THESE DIAGNOSES WERE NOT ANY
3 SORT OF AN IMMEDIATE THREAT. IT WAS NOT THE EXPECTATION OF
4 THE TREATING PHYSICIANS THAT THESE PATIENTS WERE JUST
5 SUDDENLY GOING TO -- TO DIE FROM THESE CONDITIONS.
6 Q. ASSUME THAT DR. SOUTHWORTH TESTIFIED THAT LYDIA SMITH
7 SUFFERED FROM THREE KINDS OF HEART DISEASE: VALVULAR
8 DISEASE, CONGESTIVE HEART DISEASE, AND CORONARY ARTERY
9 DISEASE. WOULD IT BE YOUR OPINION AS YOU SIT HERE NOW THAT
10 MS. SMITH'S CIRCUMSTANCES AT THE TIME THAT SHE WAS ADMITTED
11 TO THE HOSPITAL WOULD NOT OR COULD NOT INDEED BECOME
12 LIFE-THREATENING AS A RESULT OF HER HEART DISEASE?
13 A. AGAIN, IT DEPENDS ON THE SEVERITY OF THESE -- THESE
14 DIFFERENT COMPONENTS OF HER HEART DISEASE.
15 Q. FOR --
16 A. MANY PATIENTS HAVE THESE PROBLEMS AND FUNCTION VERY WELL
17 FOR YEARS.
18 Q. FOR EXAMPLE, ARE YOU TELLING THE JURY THAT CORONARY
19 ARTERY DISEASE IS NOT A LIFE -- CAN BE A LIFE-THREATENING
20 EVENT?
21 A. IT CAN BE, BUT IT -- IT ISN'T NECESSARILY. THAT --
22 THAT -- I MEAN, CORONARY ARTERY DISEASE, OBVIOUSLY IF THE
23 ARTERIES ACUTELY BECOME CLOGGED, PEOPLE CAN GET INTO
24 TROUBLE.
25 Q. ARE YOU --
2671
1 A. ON THE OTHER HAND, THEY -- YOU KNOW, IT TAKES YEARS AND
2 YEARS AND YEARS FOR CORONARY ARTERY DISEASE TO DEVELOP.
3 Q. ARE YOU TELLING THE JURY THAT CEREBROVASCULAR ACCIDENTS
4 OR C.V.A.'S OR STROKES, CEREBROVASCULAR DISEASE, CANNOT BE A
5 TERMINAL EVENT?
6 A. IT CAN BE.
7 Q. ARE YOU TELLING THE JURY THAT HEART ARRHYTHMIAS CAN'T BE
8 TERMINAL EVENTS?
9 A. CERTAINLY. ANY OF THOSE THINGS CAN BE.
10 Q. AND, CERTAINLY, CONGESTIVE HEART FAILURE CAN, IN FACT,
11 BE OR CAUSE A TERMINAL EVENT?
12 A. IT SURELY CAN BE.
13 THE COURT: OKAY. WHY DON'T WE TAKE A SHORT BREAK
14 RIGHT NOW.
15 MR. STIRBA: FINE, JUDGE.
16 THE COURT: I THINK WE'VE BEEN GOING FOR A WHILE.
17 LADIES AND GENTLEMEN, DURING THIS BREAK IT'S YOUR DUTY
18 NOT TO CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR
19 ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON ON THE
20 SUBJECT OF THIS TRIAL.
21 IT'S ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
22 UNTIL THE CASE IS FINALLY SUBMITTED TO YOU. AND LET'S COME
23 BACK AT 10:30.
24 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
25 PROCEEDINGS RESUME, AS FOLLOWS:)
2672
1 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
2 IS PRESENT, COUNSEL AND THE DEFENDANT ARE PRESENT.
3 MR. STIRBA, IF YOU'D LIKE TO CONTINUE?
4 MR. STIRBA: THANK YOU, YOUR HONOR.
5 Q. (BY MR. STIRBA) DOCTOR, I ASKED YOU A QUESTION BEFORE
6 ABOUT WHETHER YOU BELIEVED THAT THE -- IT WAS CORRECT AND
7 THAT THE LITERATURE SUPPORTS THAT PERHAPS IN EXCESS OF
8 40 PERCENT OF THE GERIATRIC POPULATION HAVE CHRONIC PAIN,
9 AND I BELIEVE YOUR TESTIMONY WAS THAT YOU DID NOT KNOW; IS
10 THAT RIGHT?
11 A. YES, THAT'S CORRECT.
12 Q. DO YOU RECALL THAT AT SOME POINT BACK IN DECEMBER OF
13 1999 YOUR DEPOSITION WAS TAKEN IN A RELATED MATTER AND SOME
14 QUESTIONS WERE ASKED TO YOU BY COUNSEL IN THAT DEPOSITION?
15 A. YES.
16 Q. AND YOU'RE AWARE THAT YOU WERE --
17 MR. WILSON: YOUR HONOR, I'M GOING TO IMPOSE AN
18 OBJECTION AT THIS POINT. MAY WE APPROACH --
19 THE COURT: YES.
20 MR. WILSON: -- JUST BRIEFLY.
21 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
22 MR. WILSON: THANK YOU, JUDGE.
23 Q. (BY MR. STIRBA) AND YOU WERE UNDER OATH, WERE YOU NOT,
24 AT THAT TIME?
25 A. YES, I WAS.
2673
1 MR. STIRBA: MAY I APPROACH, YOUR HONOR?
2 THE COURT: YES.
3 Q. (BY MR. STIRBA) I ONLY HAVE ONE COPY OF THIS, DOCTOR,
4 SO WE'LL JUST HAVE TO FOLLOW ALONG. I'M GOING TO DIRECT
5 YOUR ATTENTION TO UP HERE AND IT SAYS:
6 "QUESTION: DO YOU AGREE THAT GENERALLY THE LITERATURE
7 SUPPORTS THE STATEMENT THAT WHEN YOU'RE DEALING WITH A
8 GERIATRIC POPULATION, PERHAPS IN EXCESS OF 40 PERCENT HAVE
9 CHRONIC PAIN?
10 ANSWER: THAT PERHAPS WOULD BE TRUE. I DON'T HAVE ANY
11 WAY OF VERIFYING THAT INFORMATION. IT WOULDN'T SURPRISE ME.
12 QUESTION: CERTAINLY THAT'S CONSISTENT WITH YOUR
13 EXPERIENCE.
14 ANSWER: I THINK THAT'S REASONABLE."
15 THEN THERE'S ANOTHER STATEMENT:
16 "I'M SORRY. I DIDN'T GET WHAT WAS REASONABLE BECAUSE
17 WE WERE ON EACH OTHER'S WORDS.
18 THE WITNESS: PERHAPS 40 PERCENT HAVE CHRONIC PAIN OF
19 SOME SORT."
20 WERE THOSE QUESTIONS ASKED AND WERE THOSE ANSWERS
21 GIVEN?
22 A. YES. THAT'S CORRECT.
23 Q. NOW, DOCTOR, HAVE YOU REVIEWED THE MEDICAL HISTORY
24 RECORDS CONCERNING PATIENT JUDITH LARSEN?
25 A. YES, I HAVE.
2674
1 Q. AND YOU'RE AWARE, ARE YOU NOT, THAT SHE HAD A SERIES OF
2 HOSPITALIZATIONS IN 1995, SPECIFICALLY JULY, AUGUST, AND
3 SEPTEMBER OF 1995?
4 A. YES.
5 Q. YOU'RE ALSO AWARE THAT AS A RESULT OF THOSE
6 HOSPITALIZATIONS, SPECIFICALLY THE ONE IN AUGUST AND JULY,
7 THAT SHE WAS REFERRED -- AS CHARACTERIZED IN THE MEDICAL
8 RECORDS -- TO A NURSING HOME FOR TERMINAL CARE. ARE YOU
9 AWARE OF THAT?
10 A. I WAS NOT -- I DON'T RECALL SEEING ANY DIAGNOSIS OF
11 TERMINAL CARE. NO.
12 Q. YOU DON'T RECALL A PHYSICIAN, SPECIFICALLY DR. PEARCE,
13 INDICATING IN HIS DISCHARGE SUMMARY THAT SHE WAS GOING TO BE
14 DISCHARGED FOR RELEASE TO THE NURSING HOME FOR TERMINAL
15 CARE?
16 A. THE ONE STATEMENT I'M AWARE OF IS THAT OF DR. STEVENS
17 WHO SAID DESPITE SOME MINOR STROKES, THAT SHE HAD NO
18 TERMINAL MEDICAL PROBLEMS. SO THAT'S -- SO I'M -- I'M NOT
19 AWARE OF -- OF DR. PEARCE AND -- AND -- AND HIS STATEMENTS.
20 Q. OKAY. AND THAT STATEMENT -- THE STATEMENT YOU'RE
21 REFERRING TO -- ONCE AGAIN, YOU HAVEN'T REVIEWED, HAVE YOU,
22 THE TESTIMONY THAT DR. STEVENS GAVE IN THIS TRIAL?
23 A. I HAVE NOT, NO.
24 Q. AND SO YOU DON'T KNOW WHAT HE TESTIFIED TO TO THESE
25 LADIES AND GENTLEMEN CONCERNING THE CIRCUMSTANCES OF HIS
2675
1 CARE AND TREATMENT OF MS. LARSEN, DO YOU?
2 A. I DON'T KNOW THE SPECIFICS, NO.
3 Q. AND IT'S TRUE, IS IT NOT, YOU WOULD AGREE THAT JUDITH
4 LARSEN STOPPED EATING ON THE 30TH OF DECEMBER OF 1995?
5 A. CERTAINLY HER -- HER EATING WAS IN A DRAMATIC WAY
6 AFFECTED, PERHAPS EVEN EARLIER THAN THAT. 29TH --
7 Q. BUT MY QUESTION TO YOU IS, SIR -- IT'S A VERY FACTUAL
8 QUESTION -- DO YOU AGREE THAT SHE STOPPED EATING AS OF THE
9 30TH OF DECEMBER OF 1995?
10 A. I'D SAY THAT'S A FAIR STATEMENT.
11 Q. AND IS IT ALSO FAIR AND CORRECT THAT AS OF THE 30TH OF
12 DECEMBER OF 1995, SHE WAS NOT RECEIVING ANY I.V. FLUIDS?
13 A. THAT'S CORRECT.
14 Q. AND WOULD YOU AGREE, DOCTOR, THAT SOMEONE WHO IS
15 DEPRIVED OF FLUIDS OR FOOD FOR A VERY SMALL, LIMITED PERIOD
16 OF TIME, PERHAPS A FEW DAYS, THAT COULD END UP IN A TERMINAL
17 EVENT?
18 A. THAT'S CORRECT.
19 Q. AND IT'S TRUE, IS IT NOT, THAT SHE SUFFERED FROM
20 CEREBROVASCULAR DISEASE?
21 A. SHE DID.
22 Q. AND THAT'S DIAGNOSTIC BECAUSE SHE HAD ESSENTIALLY TWO
23 STROKES IN 1995, CORRECT?
24 A. YES.
25 Q. AND IT'S TRUE, IS IT NOT, THAT SHE ALSO COULD HAVE
2676
1 SUFFERED A SUBACUTE EVENT IN THE HOSPITAL RELATED TO HER
2 CEREBROVASCULAR DISEASE; ISN'T THAT CORRECT?
3 A. I DON'T BELIEVE THERE WAS ANY -- ANY CLINICAL INDICATION
4 OF THAT, NO.
5 Q. AND IT'S TRUE THAT A SUBACUTE EVENT COULD, IN FACT, BE A
6 TERMINAL EVENT?
7 A. WELL, AGAIN, I DON'T BELIEVE THERE WAS ANY INDICATION IN
8 HER CHART THAT SHE SUFFERED ANOTHER STROKE.
9 Q. I'LL REPEAT THE QUESTION. A SUBACUTE EVENT COULD, IN
10 FACT, BE A TERMINAL EVENT; ISN'T THAT TRUE?
11 A. A SUBACUTE EVENT OF WHAT SORT? I MEAN, THAT -- THAT
12 DOESN'T TELL ME ANYTHING.
13 Q. OKAY. I'M SORRY. WITH RESPECT TO SMALL VESSELS IN THE
14 BRAIN.
15 A. AGAIN, IT WOULD -- IF -- IF SOMEONE WERE TO SUFFER A
16 STROKE, IT WOULD BE -- DEPEND ON THE DEGREE OF THE STROKE
17 THAT THEY SUFFERED AND -- AND HOW MUCH IMPAIRMENT OR
18 ADDITIONAL PROBLEM THAT CAUSED.
19 Q. CAN MINI STROKES KILL?
20 A. NOT LIKELY.
21 Q. IT'S TRUE, IS IT NOT, THAT ARRHYTHMIAS CAN, IN FACT, BE
22 TERMINAL EVENTS?
23 A. THEY CAN BE.
24 Q. AND, IN FACT, THEY ARE TYPICALLY EVENTS THAT ARE
25 CHARACTERIZED AS SUDDEN DEATH, TRUE?
2677
1 A. YES.
2 Q. NOW, IT'S TRUE, IS IT NOT, THAT THE LITERATURE PROVIDES
3 THAT AN INITIAL THERAPEUTIC DOSE OF MORPHINE, OR THE USUAL
4 DOSE, IS ANYWHERES FROM 2.5 TO 10 MILLIGRAMS?
5 A. THAT'S CORRECT IN HEALTHY, NORMAL PEOPLE, NOT
6 NECESSARILY ELDERLY PATIENTS.
7 Q. BUT AT THE PRELIMINARY HEARING WHEN I ASKED YOU THAT
8 PRECISE QUESTION, YOU DID NOT PROVIDE ANY SUCH CLARIFICATION
9 OR QUALIFICATION IN YOUR ANSWER, DID YOU?
10 A. I DON'T RECALL, BUT I THINK IT'S APPROPRIATE NOW.
11 MR. STIRBA: MAY I APPROACH, YOUR HONOR?
12 THE COURT: YES.
13 Q. (BY MR. STIRBA) YOU WERE UNDER OATH AT THE PRELIMINARY
14 HEARING; IS THAT RIGHT?
15 A. THAT'S CORRECT.
16 Q. JUST LIKE YOU ARE NOW, TRUE?
17 A. YES.
18 Q. DIRECT YOUR ATTENTION TO PAGE 539 OF THE TRANSCRIPT,
19 LINE 3.
20 "QUESTION: AND IT'S TRUE, IS IT NOT, THAT THE
21 LITERATURE PROVIDES THAT AN INITIAL THERAPEUTIC DOSE, USUAL
22 DOSE, IS ANYWHERES FROM 2.5 TO 10 MILLIGRAMS?
23 ANSWER: THAT'S RIGHT."
24 A. THAT'S CORRECT. NOW, THIS WAS IN THE CONTEXT OF JUST A
25 GENERAL DISCUSSION OF THE USE OF OPIOIDS IN PATIENT
2678
1 TREATMENT, NOT NECESSARILY IN REGARDS TO ELDERLY PATIENTS.
2 Q. WAS THAT YOUR ANSWER TO THAT QUESTION GIVEN AT THAT
3 TIME?
4 A. IT WAS.
5 Q. AND YOU DIDN'T HAVE A QUALIFICATION WITH RESPECT TO YOUR
6 RESPONSE TO THE ANSWER -- TO THE QUESTION; IS THAT TRUE?
7 A. AT THAT TIME, YES.
8 Q. NOW, I JUST WROTE 2.5 MILLIGRAMS TO 10 MILLIGRAMS ON THE
9 EASEL -- ON THE PAD. DO YOU SEE THAT?
10 A. YES.
11 Q. NOW, IT'S TRUE THAT MORPHINE HAS PROPERTIES SUCH AS A
12 HALF LIFE, CORRECT?
13 A. THAT'S RIGHT.
14 Q. AND HALF LIFE MEANS THAT OVER A CERTAIN PERIOD OF TIME,
15 A PORTION OF THE DRUG OR THE MEDICATION GENERALLY WILL BE
16 METABOLIZED OR EXCRETED BY THE BODY; ISN'T THAT CORRECT?
17 A. YES.
18 Q. SO, FOR EXAMPLE, JUST SO WE'RE CLEAR ABOUT THIS, LET'S
19 SAY WE HAVE A 10 MILLIGRAM DOSE OF MORPHINE. IS IT TRUE
20 THAT A HALF LIFE OF MORPHINE, THE LITERATURE SUPPORTS A
21 RANGE OF ANYWHERES FROM FOUR TO SIX HOURS?
22 A. THAT WOULD BE REASONABLE, YES.
23 Q. SO LET'S TAKE FOUR HOURS JUST FOR PURPOSES OF
24 ILLUSTRATION. SO AM I CORRECT UNDER GENERAL, NORMAL
25 CIRCUMSTANCES -- BECAUSE WE ALL REALIZE, DO WE NOT, THAT
2679
1 THESE THINGS VARY FROM INDIVIDUAL TO INDIVIDUAL?
2 A. YES.
3 Q. AND IT'S TRUE, IS IT NOT, THAT AS A PHYSICIAN YOU TREAT
4 AN INDIVIDUAL, YOU DON'T TREAT A CATEGORY; ISN'T THAT
5 CORRECT?
6 A. YES.
7 Q. AND, CERTAINLY, OLDER FOLKS AND YOUNGER FOLKS VARY AS
8 INDIVIDUALS; ISN'T THAT RIGHT?
9 A. THAT'S CORRECT.
10 Q. AND MEDICATION PRACTICES ARE ESSENTIALLY CLINICAL; THAT
11 IS, YOU ARE DEALING WITH AN INDIVIDUAL PATIENT, THEIR
12 INDIVIDUAL CIRCUMSTANCES, AND YOU PRESCRIBE FOR THOSE
13 CIRCUMSTANCES; ISN'T THAT TRUE?
14 A. THAT'S CORRECT.
15 Q. SO REALLY WE'RE TALKING ABOUT SOME GENERALITIES WHICH
16 MAY NOT ALWAYS APPLY GIVEN A CERTAIN CASE; ISN'T THAT
17 CORRECT?
18 A. YES.
19 Q. BUT FOR PURPOSES OF THE LITERATURE, WE DO HAVE THIS. SO
20 IF WE HAVE A FOUR HOUR -- WE USE THE FOUR HOUR -- THE LOWER
21 NUMBER FOR THE HALF LIFE, IT'S TRUE, IS IT NOT, THAT AT THE
22 END OF FOUR HOURS, ALL THINGS BEING EQUAL WE SHOULD SEE 5
23 MILLIGRAMS, ESSENTIALLY, REMAINING IN THE BODY; ISN'T THAT
24 TRUE?
25 A. YES.
2680
1 Q. AND THEN IF WE GO ANOTHER FOUR HOURS, WE SHOULD HAVE,
2 ONCE AGAIN, 2.5 MILLIGRAMS REMAINING, CORRECT?
3 A. CORRECT.
4 Q. AND THEN WE CAN GO ANOTHER FOUR HOURS -- AND EACH TIME
5 WE'RE GOING TO BE DECREASING BY HALF -- WE'D HAVE 1.25,
6 TRUE?
7 A. YES.
8 Q. AND IT'S TRUE, IS IT NOT, THAT THE PSYCH MEDS WHICH HAVE
9 BEEN DISPLAYED AND YOU TESTIFIED A LITTLE BIT ABOUT -- LET
10 ME HOLD UP ONE OF THESE. THIS IS LYDIA SMITH. DO YOU
11 REMEMBER SEEING THIS?
12 A. YES.
13 Q. AND THERE'S A NUMBER OF MEDICATIONS ON THERE. WE HAVE
14 RISPERDAL, HALDOL, SERZONE, TRAZODONE, AND ATIVAN, AND ALSO,
15 I BELIEVE, DEPAKENE. THEY, SIMILARLY, ARE MEDICATIONS THAT
16 HAVE HALF LIVES, TRUE?
17 A. THAT'S RIGHT.
18 Q. IN OTHER WORDS, MEDICATIONS DO NOT STAY ON FOREVER IN
19 THE HUMAN BODY, CORRECT?
20 A. THAT'S RIGHT.
21 Q. AND, IN FACT, ISN'T IT ALSO TRUE THAT YOU CAN ACTUALLY
22 CHART THE EFFECTS OF CERTAIN MEDICATIONS IN TERMS OF PEAKS
23 AND TROUGHS; ISN'T THAT CORRECT?
24 A. THAT'S RIGHT.
25 Q. AND, IN FACT, MORPHINE DOES HAVE WHAT IS CALLED A PEAK
2681
1 EFFECT, CORRECT?
2 A. THAT'S CORRECT.
3 Q. AND YOU WOULD AGREE, WOULD YOU NOT, THAT THE LITERATURE
4 GENERALLY SUPPORTS THE PEAK EFFECT OF MORPHINE AS ANYWHERES
5 FROM 30 TO 60 MINUTES?
6 A. IT DEPENDS ON THE ROUTE OF ADMINISTRATION.
7 Q. LET'S SAY I -- I.M.
8 A. THAT'S CORRECT.
9 Q. AND IF WE WERE LOOKING -- AND I GUESS SOME FOLKS CAN DO
10 THIS, PHARMACOLOGISTS AND THE LIKE, BUT IF WE'RE LOOKING AT,
11 FOR EXAMPLE, A MEDICATION LIKE MORPHINE, WE MIGHT SEE
12 SOMETHING GRAPHED WHERE THERE'S SOMETHING LIKE THIS, WHICH
13 ESSENTIALLY WOULD SHOW A PEAK. THIS WOULD BE THE PEAK
14 EFFECT, THE MAXIMUM EFFECT ON THE SYSTEM, AND THEN THERE'S
15 BASICALLY A DETERIORATION OR A TROUGH GOING DOWN LIKE THIS.
16 ISN'T THAT TRUE (ILLUSTRATING)?
17 A. SOMETHING LIKE THAT, YES.
18 Q. IN OTHER WORDS, THIS WOULD BE AS THE -- AS THE
19 MEDICATION OR THE MORPHINE IS DISSIPATING BY HALF LIFE AND
20 BEING METABOLIZED AND EXCRETED, OBVIOUSLY ITS PEAK EFFECT IS
21 GOING DOWN, CORRECT?
22 A. YES.
23 Q. NOW, IT'S ALSO TRUE, IS IT NOT, THAT THE LITERATURE
24 SUPPORTS THE FACT THAT MAXIMUM RESPIRATORY DEPRESSION IS
25 ACHIEVED WHEN THE DRUG IS AT PEAK EFFECT; ISN'T THAT TRUE?
2682
1 A. YES.
2 Q. SO IN OTHER WORDS, IF WE'RE LOOKING AT A DOSE OF LET'S
3 SAY MORPHINE, WE WOULD EXPECT THAT AT THIS POINT HERE WHEN
4 THE MORPHINE IS, IN FACT, AT ITS PEAK EFFECT, THIS WOULD BE
5 THE -- THE POINT WHEN MAXIMUM RESPIRATORY DEPRESSION WOULD
6 OCCUR; ISN'T THAT TRUE?
7 A. THAT'S RIGHT. This is important when defense experts testify.
8 Q. NOW, I'VE JUST WRITTEN OUT MAXIMUM RESPIRATORY
9 DEPRESSION AND I'M GOING TO KIND OF PUT A -- A LITTLE POINT
10 RIGHT THERE WHICH WILL SHOW THE PEAK AND THE MAXIMUM
11 RESPIRATORY DEPRESSION.
12 IT'S TRUE, IS IT NOT, THAT YOU WOULD -- YOU WOULD
13 EXPECT THAT IF SOMEBODY IS SUFFERING FROM MORPHINE TOXICITY;
14 THAT IS, SOME COMPLICATIONS AS A RESULT OF TOO MUCH
15 MORPHINE, THAT SYMPTOMATICALLY YOU WOULD SEE A DECREASE OR
16 AN ABNORMAL RESPIRATORY RATE. IS THAT A FAIR STATEMENT?
17 A. USUALLY THAT'S TRUE. THE OVERALL -- THE DEPTH OF
18 RESPIRATION AND THE RATE ARE AFFECTED, AND THE OVERALL
19 EFFECT IS THAT THE PATIENT DOESN'T BREATHE AS MUCH AS THEY
20 NORMALLY WOULD. BUT THE -- THE RATE'S USUALLY A DECENT
21 INDICATOR, BUT NOT ALWAYS A PERFECT INDICATOR.
22 Q. OKAY. IT'S A DECENT INDICATOR. IN OTHER WORDS, WHAT
23 YOU WOULD EXPECT IF SOMEBODY IS SUFFERING ILL EFFECTS FROM
24 MORPHINE, THAT THERE WOULD BE SOME ABNORMAL FINDING WITH
25 RESPECT TO THEIR RESPIRATORY RATE; ISN'T THAT TRUE?
2683
1 A. USUALLY SO, YES.
2 Q. AND IT'S TRUE, IS IT NOT, THAT A NORMAL RESPIRATORY RATE
3 IS BETWEEN 12 AND 20 RESPIRATIONS PER MINUTE, CORRECT?
4 A. THAT'S CORRECT.
5 Q. AND IT'S TRUE, IS IT NOT, THAT AN ABNORMAL RATE, FOR
6 EXAMPLE, WHY A NURSE MAY GET CONCERNED, WOULD BE ANYWHERES
7 BELOW 12? IS THAT A FAIR STATEMENT?
8 A. YES.
9 Q. NOW, YOU ALSO TESTIFIED ABOUT THE EFFECTS, I BELIEVE, OF
10 SOME OF THE OTHER PSYCH MEDICATIONS. AND YOUR TESTIMONY WAS
11 THAT THEY WERE SEDATING; IS THAT RIGHT?
12 A. THAT'S RIGHT.
13 Q. AND, SIMILARLY, THOSE SEDATING MEDICATIONS YOU BELIEVE
14 WOULD HAVE A -- IF THEY WERE ACTING IN AN IMPROPER MANNER
15 WITH THE SYSTEM WOULD SHOW, ALSO, A RESPIRATORY DEPRESSION
16 THAT WOULD BE ABNORMAL; ISN'T THAT CORRECT?
17 A. YEAH. THAT'S NOT JUST MY BELIEF, IT'S PROVEN.
18 Q. SURE.
19 A. YES.
20 Q. IN OTHER WORDS, IF YOU HAVE TOO MUCH MEDICATION AND IT'S
21 HAVING A BAD INFLUENCE ON YOU AND IT IS SEDATING, THE FIRST
22 THING CERTAINLY YOU'RE GOING TO SEE -- OR AT LEAST SOMETHING
23 YOU'RE GOING TO SEE IS AN ABNORMAL RESPIRATORY RATE; ISN'T
24 THAT TRUE?
25 A. IT -- IT COULD BE, YES.
2684
1 Q. AND, IN FACT, YOU -- YOU ARE AWARE, ARE YOU NOT, IN
2 REVIEWING THESE RECORDS THAT RESPIRATORY RATES WERE CHARTED
3 AND TAKEN DURING THE ENTIRE TIME PERIOD THAT THESE PATIENTS
4 WERE IN THE HOSPITAL? ARE YOU AWARE OF THAT?
5 A. THEY WERE TAKEN INFREQUENTLY, YES.
6 Q. BUT THEY WERE TAKEN ON A DAILY BASIS TO CHART THE
7 RESPIRATIONS; ISN'T THAT CORRECT?
8 A. THAT'S CORRECT, BUT --
9 Q. AND IT'S TRUE --
10 A. -- MAY I -- MAY I SAY SOMETHING ABOUT THAT?
11 Q. NO. I'M ASKING THE QUESTIONS, AND I'M SURE YOUR COUNSEL
12 MAY HAVE AN OPPORTUNITY TO ASK YOU WHATEVER HE WANTS.
13 A. OKAY.
14 Q. BUT THE QUESTION I'M ASKING YOU IS, IT'S TRUE, IS IT
15 NOT, THAT RESPIRATIONS WERE CHARTED BY THE NURSES AT THE
16 HOSPITAL ON EACH ONE OF THESE PATIENTS, CORRECT?
17 A. THEY WERE CHARTED, BUT NOT IN ANY WAY COORDINATED WITH
18 THE MORPHINE THE PATIENTS WERE RECEIVING OR THE MEDICATIONS.
19 Q. WELL, WHEN YOU SAY THEY WEREN'T CHARTED IN COORDINATION,
20 THEY WERE CHARTED ON A DAILY BASIS, TRUE?
21 A. BUT YOU POINTED OUT THAT THERE'S A CERTAIN POINT OF TIME
22 WHEN THE DANGER FROM THE MORPHINE'S THE GREATEST. AND AT
23 THAT IS WHEN THOSE CHARTING -- THAT CHARTING NEEDS TO BE
24 DONE --
25 Q. SURE.
2685
1 A. -- AND IT WASN'T.
2 Q. AND THE FACT OF THE MATTER, SIR, YOU DIDN'T DO THIS
3 CHARTING EITHER, DID YOU?
4 A. AGAIN -- WHICH CHARTING? NO, I DIDN'T DRAW THE PICTURE,
5 NO.
6 Q. THIS CHARTING RIGHT HERE. YOU DIDN'T DO THAT EITHER,
7 DID YOU?
8 A. NO.
9 Q. WELL, LET'S SEE WHAT THE NURSES CHARTED WITH RESPECT TO
10 SOME OF THESE PATIENTS. FOR EXAMPLE, WHY DON'T YOU LOOK AT
11 MARY CRANE'S BINDER, PLEASE.
12 A. OKAY. WHICH PAGE IS THIS, SIR?
13 Q. THIS IS GOING TO BE MED-00279. NOW, THIS IS REAL HARD
14 TO READ ON THE ELMO AND ON THE VIDEO MONITORS, BUT YOU HAVE
15 IT IN FRONT OF YOU. BUT IF I LOOK AT THESE INDICATORS HERE,
16 THESE ARE ALL -- AS I'M GOING THROUGH RESPIRATION, THOSE ARE
17 RATES THAT NURSES CHARTED CONCERNING MS. CRANE'S EVENTS FROM
18 THE 28TH THROUGH THE 3RD OF JANUARY, TRUE?
19 A. THAT'S TRUE, UH-HUH.
20 Q. AND IT LOOKS LIKE WE START OUT ON THE 28TH AT 18, AND IF
21 I GO THROUGH THIS IT LOOKS LIKE 18 AGAIN, AND THEN IT LOOKS
22 LIKE 20, AND 20, AND 18, 24 -- I CAN'T TELL WHETHER THAT'S
23 26 OR A 16 -- 20, 16, 16 -- I CAN'T READ THAT ONE -- AND 20
24 ON THE 3RD. DID I READ THAT CORRECTLY?
25 A. YES.
2686
1 Q. AND THOSE ARE ALL NORMAL RESPIRATION RATES, AS YOU HAVE
2 JUST TESTIFIED, CORRECT?
3 A. THAT WOULD BE RIGHT.
4 Q. AND THEN IF WE LOOK AT HER RESPIRATIONS ON THE 4TH: 16,
5 24, 10, 20, 14, 16, AND THE LAST ONE LOOKS LIKE 20, BUT I
6 CAN'T BE POSITIVE ABOUT THAT. DID I READ THOSE CORRECTLY?
7 A. YES.
8 Q. AND THAT WOULD BE FOR THE EVENTS FROM THE 4TH THROUGH
9 THE 7TH, TRUE?
10 A. THAT'S RIGHT.
11 Q. AND IT'S TRUE, IS IT NOT, THAT WITH THE EXCEPTION OF THE
12 10, ALL OF THOSE RESPIRATION RATES ARE, IN FACT, NORMAL?
13 A. I BELIEVE TWO OF THOSE LOOK LIKE 28 TO ME. I MAY BE
14 WRONG ON THAT. BUT THIS IS DURING THE TIME WHEN THE
15 PERIOD -- THE PATIENT WAS DEVELOPING AN ASPIRATION
16 PNEUMONIA, AND IT LOOKS LIKE AN INCREASED RESPIRATORY RATE
17 WHICH WOULD REFLECT THAT.
18 Q. CERTAINLY NOT A DEPRESSION.
19 A. BUT --
20 Q. NOT IF YOU'RE AT 28; ISN'T THAT TRUE?
21 A. BUT THIS, ALSO, IS A PATIENT DURING THE SAME TIME PERIOD
22 WHO IS DIAGNOSED WITH ASPIRATION PNEUMONIA WHAT WAS -- WHICH
23 WAS THOUGHT TO BE DUE TO HER OVERMEDICATION. AND SO,
24 AGAIN --
25 Q. WHO THOUGHT THAT, SIR? I'M DIDN'T -- I'M SORRY. CAN
2687
1 YOU --
2 A. DR. DIENHART.
3 Q. CAN YOU POINT TO ME IN THE MEDICAL RECORD WHERE SOMEBODY
4 SAID --
5 A. SURE.
6 Q. -- SHE HAD ASPIRATION PNEUMONIA BECAUSE OF OVERSEDATION?
7 A. ABSOLUTELY. ON -- THIS IS ON PAGE 00242 IN HER MEDICAL
8 RECORDS.
9 Q. 242. OKAY. THIS IS -- YOU'RE REFERRING TO A
10 DR. DIENHART ENTRY ON 1/1 OF '96?
11 A. THAT'S CORRECT.
12 Q. OKAY. NOW, AS I -- AS I READ THAT, HE SAYS: MEDICINE
13 FOLLOW-UP. ASKED TO SEE BY DR. WEITZEL. HE SAYS: REPORT
14 OF VAGINAL STOOL TODAY. PATIENT MORE SEDATED. RECEIVED
15 ATIVAN 2 MILLIGRAMS LAST EVENING, RISPERDAL 3 TIMES A DAY.
16 OBJECTIVE TEMPERATURE 99.5, AND HE INDICATES THE
17 RESPIRATIONS ON THAT DAY ARE 24.
18 THAT'S QUITE GOOD, ISN'T IT?
19 A. THAT'S HIGH. THE PATIENT'S BREATHING ABNORMALLY FAST.
20 Q. CERTAINLY NOT DEPRESSED, IS IT?
21 A. IF THE PATIENT HAS AN ONGOING PULMONARY PROCESS, THEY'RE
22 GOING TO BE BREATHING MORE RAPIDLY AND NOT NECESSARILY VERY
23 DEEPLY.
24 Q. OKAY. CERTAINLY NOT DEPRESSED, IS IT?
25 A. I DON'T KNOW, AS FAR AS THE ADEQUACY OF VENTILATION --
2688
1 Q. THAT'S NOT WHAT I'M ASKING.
2 A. RATE WISE, MAYBE NOT.
3 Q. RATE WISE IT'S NOT DEPRESSED, IS IT?
4 A. ADEQUACY OF VENTILATION, IT -- IT MAY WELL BE.
5 Q. OKAY. AND THEN WE HAVE: LUNGS CLEAR, ABDOMEN SOFT,
6 HEART REGULAR RATE WITHOUT MURMUR, VAGINAL BROWN FECAL
7 MATERIAL ON VISUAL INSPECTION.
8 THEN HE HAS A NOTE INDICATING SOME TESTS. IMPRESSION:
9 PROBABLE RECTAL VAGINAL FISTULA. RECOMMENDS C.B.C. TODAY.
10 DECREASE DURAGESIC PATCH WITH INCREASED SEDATION.
11 GYNECOLOGICAL CONSULTATION. DR. DIENHART.
12 DID I READ THAT CORRECTLY?
13 A. YOU DID.
14 Q. SO WHERE DOES HE SAY IN THERE THAT ASPIRATION PNEUMONIA
15 WAS CAUSED AS A RESULT OF EXCESSIVE SEDATION OR TOO MUCH
16 SEDATION? HE DOESN'T SAY THAT, DOES HE?
17 A. (NO RESPONSE.)
18 Q. DOES HE, SIR?
19 A. HE DOESN'T IN THAT PARTICULAR NOTE. I'M SORRY, I -- I
20 PROBABLY PICKED THE WRONG ONE.
21 Q. LET ME ASK YOU THIS, SIR. GOING BACK TO THE RESPIRATION
22 CHART THAT WE HAVE IN FRONT OF US, I READ THOSE CORRECTLY --
23 ALTHOUGH YOU THOUGHT MAYBE PERHAPS ONE WAS A 28; IS THAT
24 TRUE?
25 A. THAT'S RIGHT.
2689
1 Q. AND THEN IT'S TRUE, IS IT NOT, ON 1/7, WHICH IS THE DAY
2 THAT PATIENT MARY CRANE WAS ASSESSED BY DR. DIENHART AS
3 BEING POSSIBLY SEPTIC, SHE SPIKES A FEVER THAT'S ALMOST AT
4 103; IS THAT CORRECT?
5 A. THAT'S RIGHT.
6 Q. AND IT'S TRUE, IS IT NOT, THAT THE ASSESSMENT MADE BY
7 DR. DIENHART WAS AT 3:10 P.M. ON THE AFTERNOON OF THE 7TH,
8 CORRECT?
9 A. THAT'S RIGHT.
10 Q. AND IT'S TRUE, IS IT NOT, THAT IN HIS NOTE FOR THAT DAY
11 HE INDICATES THAT PATIENT MAY DIE SOON, TRUE?
12 A. THAT WAS IN HIS NOTE, YES.
13 Q. AND IT'S ALSO TRUE THAT HE ADVISED THAT THE FAMILY BE
14 NOTIFIED AS OF THAT TIME AND DATE?
15 A. HE DID, YES.
16 Q. AND ARE YOU AWARE -- HAVE YOU REVIEWED THE TESTIMONY OF
17 NURSE SCHOLLS -- I'M SORRY, COZZENS, CONCERNING THE EVENTS
18 OF THAT DAY?
19 A. I HAVE NOT.
20 Q. ASSUMING THAT SHE TESTIFIED THAT SHE THOUGHT AS OF
21 2 O'CLOCK IN THE AFTERNOON THAT PATIENT MARY CRANE WAS
22 DYING -- ASSUME THAT. BASED UPON THAT AND WHAT YOU KNOW
23 THAT DR. DIENHART CHARTED, IS THERE ANY INDICATION OR ANY
24 DOUBT IN YOUR MIND AS YOU SIT HERE TODAY THAT, IN FACT, AS
25 OF APPROXIMATELY 3 O'CLOCK IN THE AFTERNOON, MARY CRANE WAS
2690
1 DYING AS A RESULT OF AN INFECTIOUS DISEASE PROCESS ON THE
2 7TH OF JANUARY?
3 A. I THINK THAT YOU HAVE TO LOOK AT THE HISTORY UP TO THAT
4 POINT AS FAR AS CONCLUSIONS.
5 Q. WELL, THE QUESTION I'M ASKING YOU, SIR, THOUGH, IS A
6 SIMPLE ONE. IS IT YOUR OPINION THAT AS OF 3 O'CLOCK OR
7 APPROXIMATELY 3 O'CLOCK ON THE 7TH OF JANUARY OF 1995 THAT
8 MARY CRANE, CONSISTENT WITH WHAT DR. DIENHART INDICATED AND
9 WHAT THE NURSE ASSESSED, WAS IN FACT DYING OF AN INFECTION?
10 A. I DON'T BELIEVE THERE'S ENOUGH INFORMATION IN THE CHART
11 TO CONFIRM THAT THAT'S THE CASE, NO.
12 Q. SO YOU DON'T KNOW. IS THAT YOUR TESTIMONY?
13 A. NO. I'M SAYING I THINK THERE ARE ALTERNATE EXPLANATIONS
14 TO -- YOU KNOW, WHY SHE'S IN THE SITUATION SHE'S IN AT THAT
15 POINT.
16 Q. THAT WASN'T MY QUESTION. MY QUESTION WAS -- YOU CAN
17 EITHER TELL US THAT YOU AGREE THAT SHE WAS DYING OR YOU
18 DON'T KNOW. AND I THOUGHT YOU JUST SAID YOU DON'T HAVE
19 ENOUGH INFORMATION TO RENDER THAT OPINION; IS THAT RIGHT?
20 A. YOU ASKED -- YOU SAID THAT SHE WAS DYING FROM AN
21 INFECTION. I'M SAYING THAT I THINK THERE ARE OTHER
22 EXPLANATIONS AS TO WHY SHE'S DYING AT THIS POINT.
23 Q. OKAY. SO YOU THINK SHE'S DYING AS OF 3 O'CLOCK ON THE
24 7TH OF JANUARY OF 1995, TRUE?
25 A. I DON'T KNOW THAT SHE'S DYING.
2691
1 Q. OKAY. SO, ONCE AGAIN, YOU DON'T KNOW THAT SHE'S DYING;
2 IS THAT RIGHT -- AT THAT TIME?
3 A. I THINK SHE'S -- YOU KNOW, AT THIS POINT SHE'S OBVIOUSLY
4 WORSE THAN SHE WAS AT THE TIME OF ADMISSION. AND I THINK
5 THEN YOU'D NEED TO COME UP WITH AN EXPLANATION AS TO WHY
6 SHE'S WORSE.
7 Q. AND YOU DON'T KNOW WHETHER OR NOT --
8 A. AND I THINK THAT THERE ARE A NUMBER OF POSSIBILITIES
9 BEING ENTERTAINED IN THE CHART: ASPIRATION PNEUMONIA,
10 INFECTION, AND CERTAINLY OVERMEDICATION.
11 Q. SURE. THERE -- THERE ARE ALL THOSE POSSIBILITIES THAT
12 COULD HAVE CAUSED HER DEATH. IS THAT WHAT YOU'RE SAYING?
13 A. NO. I'M SAYING THAT THOSE ARE THINGS THAT -- THAT AT
14 THIS POINT HAVE HER LOOKING WORSE THAN WHEN SHE CAME IN.
15 Q. AND WHEN YOU TALK ABOUT ASPIRATION PNEUMONIA, YOU'RE
16 AWARE THAT X-RAYS WERE TAKEN ON THE 31ST OF DECEMBER, THE
17 5TH OF JANUARY, AND THE 7TH OF JANUARY. EACH ONE OF THEM
18 SAID IN THE REPORT THAT THE LUNGS WERE CLEAR. ARE YOU AWARE
19 OF THAT?
20 A. I -- I -- AGAIN, I DON'T RECALL, YOU KNOW, IN THAT MUCH
21 DETAIL. OBVIOUSLY THERE ARE LOTS OF RECORDS HERE. I DIDN'T
22 MEMORIZE THEM ALL.
23 Q. WELL, CERTAINLY IF HER LUNGS WERE CLEAR ON THREE
24 DIFFERENT CHEST X-RAYS, THAT IS NOT CONSISTENT WITH SOMEBODY
25 HAVING PNEUMONIA, IS IT?
2692
1 A. THAT WOULD BE -- IF THAT WERE THE CASE, THAT WOULD BE
2 CORRECT, YES.
3 Q. AND IT'S ALSO TRUE THAT A VAGINAL FISTULA, AS INDICATED
4 BY THE GYNECOLOGICAL CONSULT NOTE, WAS SOMETHING THAT WAS TO
5 BE TREATED, IF NOT TREATED SURGICALLY, BY A BROAD SPECTRUM
6 ANTIBIOTIC; ISN'T THAT TRUE?
7 A. THAT'S CORRECT.
8 Q. AND THE PURPOSE OF THE BROAD SPECTRUM ANTIBIOTIC WAS TO
9 ESSENTIALLY TREAT A POSSIBLE INFECTION AS A RESULT OF THE
10 FISTULA; ISN'T THAT CORRECT?
11 A. THAT'S CORRECT. BUT THIS IS VERY LIKELY A CHRONIC
12 CONDITION AND CERTAINLY NOT A LIFE-THREATENING CONDITION.
13 Q. WELL, YOU SAY IT'S NOT LIFE-THREATENING.
14 A. NOT IMMEDIATELY LIFE-THREATENING.
15 Q. YOU -- YOU -- YOU AGREE THAT SOMEBODY CAN, IN FACT, DIE
16 FROM AN INFECTION, RIGHT?
17 A. I'M SAYING THOUGH THIS WAS NOT A MEDICAL EMERGENCY.
18 THIS WAS A CHRONIC CONDITION. THIS HAD THE POTENTIAL TO BE
19 AN ACTIVE INFECTION. THEY RECOMMENDED WELL, MAYBE WE TREAT
20 IT WITH ANTIBIOTICS, MAYBE WE DO SURGERY ON IT. THIS WAS
21 NOT A MEDICAL EMERGENCY TYPE PROBLEM.
22 Q. YOU -- YOU WOULD AGREE, WOULD YOU NOT, THAT IF
23 SOMEBODY'S SEPTIC, THAT IS A MEDICAL EMERGENCY?
24 A. I DON'T THINK THERE WAS ANY INDICATION THIS PATIENT WAS
25 SEPTIC.
2693
1 Q. THAT WASN'T MY QUESTION. WOULD YOU AGREE, SIR, THAT IF
2 SOMEBODY'S SEPTIC, THAT'S A MEDICAL EMERGENCY?
3 A. IT IS.
4 Q. AND YOU AGREE, SIR, IF SOMEBODY'S SEPTIC, THAT'S
5 ESSENTIALLY, POTENTIALLY A SYSTEMIC INFECTION?
6 A. IT IS.
7 Q. AND CAN -- CAN VERY MUCH BE LIFE-THREATENING; ISN'T THAT
8 TRUE --
9 A. THAT'S TRUE.
10 Q. -- IF NOT TREATED?
11 A. BUT THAT WASN'T THE SITUATION HERE.
12 Q. YOU SAY THAT EVEN THOUGH DR. DIENHART INDICATES IN HIS
13 NOTE ON THE 7TH THAT SHE WAS POSSIBLY SEPTIC. IS THAT YOUR
14 TESTIMONY?
15 A. AGAIN, HE RAISED QUESTIONS AS TO POSSIBILITIES OF WHY
16 SHE WAS IN THE SITUATION SHE WAS IN.
17 Q. LET'S LOOK AT THE GRAPH FOR ELLEN ANDERSON. THIS IS,
18 ONCE AGAIN, A SIMILAR GRAPH. IT'S UNDER THE SECTION
19 "GRAPHS" IN MEDS. AND, ONCE AGAIN, DOWN HERE AT THE
20 BOTTOM --
21 A. WHICH -- I'M SORRY. WHICH NUMBER IS THIS?
22 Q. THIS IS MED-00175. AND DOWN AT THE BOTTOM ONCE AGAIN WE
23 HAVE A RESPIRATION, AND THE FIRST ONE IS EITHER 20 OR 26,
24 I -- I CAN'T TELL, AND THE NEXT ONE IS 16; IS THAT RIGHT?
25 A. THAT'S RIGHT. I THINK IT'S IMPORTANT THOUGH TO POINT
2694
1 OUT THAT --
2 MR. STIRBA: YOUR HONOR, THERE'S NO PENDING
3 QUESTION AND -- I HAVEN'T ASKED ONE.
4 THE COURT: OKAY. ASK YOUR NEXT QUESTION.
5 Q. (BY MR. STIRBA) IF YOU'LL GO TO -- THIS IS GOING TO BE
6 LYDIA SMITH'S BINDER, AND IT WOULD BE MED-00732.
7 MR. WILSON: WHAT WAS THAT REFERENCE AGAIN,
8 COUNSEL?
9 MR. STIRBA: 00732.
10 Q. (BY MR. STIRBA) DO YOU HAVE IT, DOCTOR?
11 A. I HAVE THAT, YES.
12 Q. AND THIS IS, ONCE AGAIN, ANOTHER ONE OF THOSE GRAPHS,
13 AND I'M GOING TO PULL THIS DOWN A BIT. UP AT THE TOP, ONCE
14 AGAIN WE HAVE EACH DAY THAT PATIENT LYDIA SMITH WAS IN THE
15 HOSPITAL, AT THE TOP. AND THEN WE HAVE, ONCE AGAIN, THE
16 GRAPHING OF HER RESPIRATIONS ALONG THIS LINE THAT I'M
17 POINTING TO WITH THE POINTER.
18 THE FIRST ONE, IT LOOKS LIKE 20 TO ME. THEN THERE'S A
19 16, AND ANOTHER 20, 20, 24, 22, THAT ONE LOOKS LIKE 18 --
20 AND I HONESTLY CAN'T READ THAT ONE -- 20 -- THAT ONE'S
21 TOUGH, TOO. IT LOOKS LIKE 20, BUT I CAN'T READ IT -- 20 --
22 AND THEN THIS ONE LOOKS LIKE A 20. DID I -- DID I READ
23 THOSE CORRECTLY GOING ACROSS?
24 A. YES.
25 Q. AND IF WE FLIP OVER TO THE NEXT GRAPH WE HAVE A SIMILAR
2695
1 GRAPHING, MED-00733: 16, 18, 20, 20, 20, 22, 20 -- I CAN'T
2 READ IT, I THINK IT'S A 16, BUT I CAN'T READ IT -- 16, 20,
3 20, 20, 20 -- THAT ONE I CAN'T READ EITHER. DID I READ
4 THOSE CORRECTLY?
5 A. YES.
6 Q. AND THIS IS -- THIS IS ALL DURING THE TIME WHEN SHE'S
7 GETTING MEDICATIONS -- PSYCHIATRIC MEDICATIONS, CORRECT?
8 A. THAT'S CORRECT.
9 Q. WHICH -- WHICH YOU HAVE TESTIFIED ARE C.N.S. DEPRESSANTS
10 OR SEDATING MEDICATIONS, TRUE?
11 A. THAT'S RIGHT. I'VE ALSO TESTIFIED THOUGH THAT THE RATE
12 DOES NOT NECESSARILY GIVE A -- A CLEAR INDICATOR OF THE
13 ADEQUACY OF VENTILATION EITHER.
14 Q. THAT'S TRUE --
15 A. SHE COULD BE BREATHING A NORMAL RATE AND VERY SHALLOWLY
16 AND NOT ADEQUATELY VENTILATING.
17 Q. RIGHT. AND WE -- AND WE CAN GO IN THE RECORDS AND, FOR
18 EXAMPLE, THERE WERE -- THEY CALL THEM OXYGEN SYMMETRY TESTS
19 WHICH WERE GIVEN TO THE PATIENTS WHICH MIGHT BE HELPFUL IN
20 TERMS OF SEEING HOW WELL THEY WERE OXYGENATED, CORRECT?
21 A. RIGHT.
22 Q. AND THERE WERE ALSO SOME STUDIES DONE, TRUE?
23 A. THAT'S CORRECT.
24 Q. AND ALSO THE NURSES, DIDN'T THEY IN THEIR -- IN THEIR
25 PARTICULAR NURSES' NOTES, THEY ASSESSED THE VERY THING
2696
1 YOU'RE TALKING ABOUT, THE QUALITY OF THE RESPIRATION; ISN'T
2 THAT CORRECT?
3 A. THAT'S HARD TO SAY WHETHER THAT WAS DONE IN ANY KIND OF
4 A REGULAR OR REASONABLE SORT OF WAY.
5 Q. YOU -- YOU DON'T REMEMBER THERE'S A -- THERE'S A LITTLE
6 FORM AT THE TOP IN THE MIDDLE OF THE NURSES' NOTES SECTION
7 WHICH HAS RESPIRATIONS, AND THEY COULD CIRCLE LABORED,
8 RELAXED, AND THERE WERE A NUMBER OF DIFFERENT CATEGORIES?
9 YOU DON'T REMEMBER THAT?
10 A. I REMEMBER THAT. I -- I DON'T KNOW THAT THAT
11 NECESSARILY ANSWERS THE QUESTION OF WHETHER THE PATIENTS
12 WERE ADEQUATELY VENTILATING.
13 Q. SURE. FOR EXAMPLE, YOU -- YOU BELIEVE THAT
14 MR. ALLDREDGE WASN'T ADEQUATELY OXYGENATED ON THE 12TH OF
15 JANUARY OF 1996; ISN'T THAT TRUE?
16 A. WELL, LET ME TAKE A LOOK AT MY RECORDS HERE. YOU'RE
17 REFERRING TO THE 12TH?
18 Q. YES.
19 A. I DON'T KNOW THAT I SPECIFICALLY REFER TO ANY -- ANY
20 SPECIFIC EVENT ON THE 12TH OR ANY SPECIFIC INDICATION OF
21 THAT THERE.
22 Q. OKAY. SO YOU DON'T -- YOU KNOW, LET'S GO BACK TO THE
23 GRAPH, DOCTOR --
24 A. WHICH -- WHICH PATIENT?
25 Q. THIS IS LYDIA SMITH. IN THE FINAL GRAPH, WHICH IS
2697
1 MED-00734, WE HAVE STARTS ON THE 3RD: 18, 18, 20, 18, 18,
2 18, 16 -- I THINK THAT'S 16, AND NOT 10, BUT I'M -- IT'S
3 AMBIGUOUS. AND THEN IT LOOKS LIKE 16 ON THE 7TH. DID I
4 READ THOSE CORRECTLY?
5 A. YOU DID.
6 Q. AND THE 16 -- 16 RATES PER MINUTE WOULD HAVE BEEN ON THE
7 7TH, WHICH IS THE DAY THAT MS. SMITH EXPIRED; IS THAT RIGHT?
8 A. THAT'S CORRECT.
9 Q. AND THEN IF WE TURN TO MR. ALLDREDGE, SIMILAR GRAPH FOR
10 HIM -- AND THIS IS MED-00041. AND HE HAS A LISTING -- ARE
11 YOU THERE, DOCTOR?
12 A. YES, I AM.
13 Q. 28, 16, 20, 18, 24, 26 -- THAT ONE'S HARD TO READ. I
14 CAN'T READ IT. THEN I THINK THE LAST ONE IS 16. DO YOU
15 AGREE WITH THAT?
16 A. YES.
17 Q. 16 WAS ON THE DAY HE PASSED AWAY; IS THAT RIGHT?
18 A. (NO RESPONSE.)
19 Q. ON THE 14TH? TRUE?
20 A. WELL, THERE'S INTERESTING CONTRADICTIONS HERE.
21 Q. WELL, THE QUESTION I'M ASKING YOU THOUGH, SIR --
22 A. WELL, THAT'S WHAT --
23 Q. -- IS NOT THE CONTRADICTIONS. I'M ASKING YOU, DID I
24 JUST READ TO YOU HIS RESPIRATION RATE ON THAT GRAPH AS BEING
25 16 ON JANUARY 14 OF 1996, THE DAY HE DIED? YES OR NO?
2698
1 A. THAT'S CORRECT.
2 Q. NOW, IF YOU'D TURN TO JUDITH LARSEN, AND THIS WOULD BE
3 THE BINDER -- AND THIS WOULD BE MED-00491, WHICH IS THE
4 GRAPH OF HER RESPIRATION RATES. AND I HAVE -- IT LOOKS LIKE
5 20 ON THE 6TH, AND THEN IT GOES 24, 18, 16, 22, ON THE 9TH
6 IT LOOKS LIKE 20, BUT I'M NOT SURE -- 18, 20, 18, 18, 20,
7 20. DID I READ THOSE LINES CORRECTLY?
8 A. YES.
9 Q. AND THEN IF WE GO TO MED-492, ONCE AGAIN, 20, 20, 20,
10 16, 20, 18, 18, 20, 18, 16, IT LOOKS LIKE 20, 16, 18, 18.
11 AND THE 18, THE LAST ONE, IS ON THE 19TH. DID I READ THOSE
12 CORRECTLY?
13 A. YES.
14 Q. AND THEN ON THE 20TH: 16, 18, 18 -- I WANT TO SAY 22,
15 BUT I CAN'T BE SURE. THE NEXT ONE IS 22, 20, 18, 20, 20,
16 22 -- IT LOOKS LIKE 24, BUT I'M NOT SURE -- 16 -- CAN'T READ
17 THAT -- I THINK THAT LAST ONE IS 18 ON THE 26TH. TRUE?
18 A. YES.
19 Q. NOW, YOU TESTIFIED THAT -- AND THE RECORDS SHOW THAT
20 5 MILLIGRAMS OF MORPHINE I THINK EVERY THREE HOURS -- OR
21 MAYBE IT WAS FOUR HOURS -- WAS STARTED ON THE 30TH OF
22 DECEMBER; IS THAT RIGHT?
23 A. THAT'S CORRECT.
24 Q. PRIOR TO THAT TIME, THERE HAD BEEN SMALL DOSES OF
25 2 MILLIGRAMS APIECE ON THE 25TH OF DECEMBER; IS THAT RIGHT?
2699
1 A. THAT'S CORRECT.
2 Q. AND THERE WAS ONE, I THINK ANOTHER DOSE, ON THE 26TH; IS
3 THAT CORRECT?
4 A. YES.
5 Q. AND IT'S TRUE, IS IT NOT, BASED UPON THE RECORDS THAT
6 YOU REVIEWED, THAT THERE WAS A P.R.N. 5 MILLIGRAM DOSE THAT
7 WAS GIVEN ON THE 1ST OF JANUARY FOR PAIN, TRUE?
8 A. WELL, THERE WERE -- ON THE 1ST OF JANUARY THERE WERE --
9 Q. I'M JUST TALKING ABOUT --
10 A. -- REGULARLY SCHEDULED DOSES AND P.R.N. DOSES.
11 Q. YES. I'M TALKING ABOUT -- I'M JUST ASKING YOU IF THERE
12 WAS A P.R.N. --
13 A. YES.
14 Q. DO YOU AGREE WITH ME --
15 A. YES.
16 Q. -- THERE WAS A P.R.N. --
17 A. YES.
18 Q. -- FOR PAIN ON THE 1ST OF JANUARY; IS THAT CORRECT?
19 A. YES.
20 Q. SIMILARLY, THERE WAS A P.R.N. FOR PAIN ON THE 2ND OF
21 JANUARY, TRUE?
22 A. THE ORDER STILL -- LET'S SEE HERE. ON THE 2ND I
23 DON'T --
24 Q. MAYBE I CAN --
25 A. -- SEE ANY -- YEAH, ON THE 2ND I DON'T SEE A P.R.N.
2700
1 Q. WELL, LET ME SEE IF I CAN DIRECT YOU TO THAT, DOCTOR.
2 A. SO I MAY HAVE --
3 Q. IF YOU WOULD LOOK AT MED-00510, PLEASE. AND UNDER THE
4 SECTION AT THE TOP WHERE -- AT THE TOP I THINK THERE IS A
5 TRAZODONE P.R.N. REFERENCE, AND THEN IF YOU FOLLOW THAT DOWN
6 YOU'LL SEE THERE'S AN M.S. 5 MILLIGRAMS Q 2 P.R.N. FOR PAIN.
7 DO YOU SEE THAT?
8 A. YES, I DO.
9 Q. AND THEN THERE SEEMS TO BE -- THERE'S AN ENTRY WHICH
10 YOU'VE TESTIFIED TO ON 1/1/96 AT 2245 I.M., AND THERE'S SOME
11 INITIALS THERE. THAT'S THE P.R.N. ORDER FOR PAIN ON THE
12 1ST. DO YOU SEE THAT?
13 A. YES.
14 Q. AND THEN RIGHT ADJACENT TO THAT IT SAYS 1/2 OF '96 AT --
15 APPEARS TO BE 1630 HOURS. THERE'S ANOTHER P.R.N. I.M. FOR
16 PAIN. DO YOU SEE THAT?
17 A. YES, I DO.
18 Q. SO YOU AGREE WITH ME THAT THERE WERE 2 P.R.N.'S FOR PAIN
19 5 MILLIGRAMS GIVEN BY THE NURSES, ONE ON THE 1ST AND ONE ON
20 THE 2ND?
21 A. YES.
22 Q. AND YOU ALSO AGREE, DO YOU NOT, BASED UPON YOUR
23 EXPERIENCE THAT A P.R.N. ORDER IS ESSENTIALLY AN AS NEEDED
24 ORDER, TRUE?
25 A. THAT'S RIGHT.
2701
1 Q. AND THAT IS, A NURSE IN THESE INSTANCES WOULD HAVE MADE
2 AN ASSESSMENT THAT THE PATIENT WAS IN NEED OF MORPHINE FOR
3 PAIN, CORRECT?
4 A. THAT'S RIGHT.
5 Q. NOW, IF YOU LOOK AT HER -- GOING BACK TO HER GRAPH,
6 WHICH IS MED-00494, I HAVE -- IT LOOKS LIKE ON THE 27TH, IT
7 APPEARS TO BE A 20, BUT IT'S -- IT'S HARD TO READ. BUT THE
8 NEXT ONE'S A 20, 16, THAT ONE LOOKS LIKE 24, 22, 22 -- ON
9 THE 30TH WE HAVE 20. DID I READ THAT CORRECTLY?
10 A. YES.
11 Q. THEN ON THE 31ST IT APPEARS THAT WE HAVE 16, AND ON THE
12 SAME -- ON THE 31ST AS WELL THERE'S 22. THAT WAS DONE
13 TWICE. AND THEN ON THE 1ST WE HAVE 12, 16; ON THE 2ND WE
14 HAVE 12. AND THEN ON P.M. ON THE 2ND WE ACTUALLY HAVE A --
15 A FIRST ABNORMAL FINDING ALONG THESE GRAPHS, AND THAT IS WE
16 SEE 6; IS THAT RIGHT?
17 A. THAT'S RIGHT.
18 Q. AND THEN IF WE GO TO THE -- THE 3RD, IT SAYS 6, 6, AND
19 THEN IT APPEARS TO BE THE LAST ONE RECORDED P.M. ON THE 3RD
20 WAS AT 8. DID I READ THOSE CORRECTLY?
21 A. YOU DID.
22 Q. NOW, DOCTOR, YOU TESTIFIED ON DIRECT ABOUT MORPHINE, AND
23 I -- I THINK YOU TESTIFIED THAT MORPHINE IS USED IN WHAT YOU
24 CALLED TERMINAL CARE. I WOULD LIKE TO REFER TO IT AS
25 END-OF-LIFE CARE. DO YOU UNDERSTAND THAT?
2702
1 A. YES.
2 Q. AND IT'S TRUE, IS IT NOT, THAT MORPHINE AND END-OF-LIFE
3 CARE IS USED TO ESSENTIALLY TREAT CERTAIN SYMPTOMS
4 ASSOCIATED WITH THE DYING PROCESS?
5 A. IT IS, YES.
6 Q. FOR EXAMPLE, ONE OF THOSE SYMPTOMS MAY, IN FACT, BE
7 PAIN?
8 A. THAT'S CORRECT.
9 Q. ANOTHER SYMPTOM THAT PEOPLE EXPERIENCE BEFORE THEY DIE
10 IS CALLED -- AND I THINK DR. FEHLAUER CORRECTED ME, BUT
11 MAYBE YOU CAN CORRECT ME, TOO. I WANT TO REFER TO IT AS
12 DYSPNEA. ARE MY SAYING THAT CORRECTLY?
13 A. YES.
14 Q. AND DYSPNEA IS A -- IS A GASPING FOR BREATH, IS IT NOT?
15 A. THAT WOULD BE A CONDITION FOUND IN SOMEONE WITH CHRONIC
16 PULMONARY DISEASE OR A CHRONIC -- OR A PULMONARY PROCESS
17 THAT PERHAPS IS LEADING TO DEATH. I DON'T BELIEVE THAT WAS
18 SOMETHING WE WERE DEALING WITH HERE.
19 Q. YOU DON'T. YOU DON'T BELIEVE THAT MR. ALLDREDGE WAS, IN
20 FACT, GASPING FOR BREATH AS CHARTED BY MS. HARDEY DURING THE
21 END PROCESS OF HIS LIFE?
22 A. THE GASPING -- THE BREATHING PATTERNS AREN'T NECESSARILY
23 WHAT WE USE MORPHINE FOR. A PATIENT WHO HAS BAD PULMONARY
24 DISEASE, HAS LUNG CANCER, HAS A CONDITION THAT IS LIMITING
25 THEIR ABILITY TO BREATHE AND THEY BECOME DISTRESSED BECAUSE
2703
1 THEY'RE NOT ABLE TO BREATHE ADEQUATELY, THAT'S A SITUATION
2 IN WHICH MORPHINE IS INDICATED.
3 Q. ISN'T IT TRUE THAT MORPHINE IS, IN FACT, THE DRUG OF
4 CHOICE FOR THE VERY PHENOMENON THAT WE'VE BEEN TALKING
5 ABOUT; THAT IS, GASPING FOR BREATH OR DYSPNEA?
6 A. THAT'S -- THAT -- THE PHENOMENON THAT I DESCRIBED, YES.
7 Q. IN OTHER WORDS, JUST SO WE'RE CLEAR, THAT IS ONE OF THE
8 SYMPTOMS THAT PEOPLE EXPERIENCE BEFORE THEIR DEATH THAT IS
9 TREATED BY MORPHINE; ISN'T THAT TRUE?
10 A. AGAIN, THE IRREGULAR BREATHING, OTHER SORTS OF THINGS
11 THAT CAN OCCUR IN SOME PATIENTS BEFORE DEATH IS NOT
12 NECESSARILY DYSPNEA. DYSPNEA INDICATES A DIFFICULTY WITH
13 BREATHING. Completely begs the question.
14 Q. WELL --
15 A. IT INDICATES A DISTRESS WITH BREATHING. AND SOMEBODY
16 WHO IS BREATHING IRREGULARLY, FOR INSTANCE, ISN'T
17 NECESSARILY HAVING ANY RESPIRATORY DISTRESS AND MORPHINE
18 WOULDN'T BE NECESSARILY INDICATED. SOMEONE WHO'S DISTRESSED
19 BY THEIR BREATHING, IS HAVING DIFFICULTY BREATHING AND
20 SHOWING INDICATION THAT THEY'RE HAVING DIFFICULTY BREATHING,
21 THEN THE MORPHINE MIGHT BE AN INDICATION.
22 Q. WELL, I GUESS I'M JUST --
23 A. IN THE -- IN THE TERMINAL PATIENT.
24 Q. I'M JUST GOING TO HAVE TO ASK IT THIS WAY, SIR. ISN'T
25 IT TRUE THAT -- I WANT TO SAY DYSPNEA?
2704
1 A. DYSPNEA.
2 Q. DYSPNEA IS A TREATABLE PHENOMENON AT THE END OF LIFE
3 WHERE PEOPLE ARE EXPERIENCING AIR HUNGER, THAT IS TREATED
4 WITH MORPHINE?
5 A. I'D AGREE WITH THAT.
6 Q. AND IT'S ALSO TRUE IN END-OF-LIFE CARE THAT MORPHINE IS
7 ALSO USED AS A MILD SEDATIVE; ISN'T THAT CORRECT?
8 A. IN PATIENTS WITH PAIN, YES.
9 Q. AND IT'S TRUE, IS IT NOT, THAT IT IS SOMETIMES VERY
10 DIFFICULT FOR A CLINICIAN TO DELINEATE OR DISTINGUISH
11 BETWEEN PAIN AND SUFFERING?
12 A. IT CAN BE. THE -- THE -- AGAIN, YOU HAVE TO DEPEND ON
13 THE HISTORY OF THE PATIENT AND THE PRESENCE OF PAIN BEFORE
14 THE TERMINAL STAGES. IF THERE HAS NOT BEEN PAIN BEFORE THE
15 TERMINAL STAGES, THERE ISN'T GOING TO BE PAIN MAGICALLY
16 APPEAR AT THAT TIME. SO, FOR INSTANCE, IN A CANCER PATIENT
17 WHO'S HAD PAIN, THEY'RE, YOU KNOW, GOING TO NEED TREATMENT
18 OF THEIR PAIN UP UNTIL THEY DIE.
19 Q. WELL, YOU AGREE, DO YOU NOT, THAT A PHYSICIAN HAS A DUTY
20 TO ALLEVIATE PAIN AND SUFFERING?
21 A. YES.
22 Q. AND, IN FACT, THE AMERICAN MEDICAL ASSOCIATION COUNCIL
23 ON ETHICS HAS SO PROMULGATED OR PUBLISHED SUCH A STATEMENT;
24 ISN'T THAT TRUE?
25 A. THAT'S CORRECT.
2705
1 Q. AND, IN FACT, YOU AGREE WITH THIS STATEMENT, DO YOU NOT,
2 THAT PHYSICIANS HAVE AN OBLIGATION TO RELIEVE PAIN AND
3 SUFFERING AND TO PROMOTE THE DIGNITY AND AUTONOMY OF DYING
4 PATIENTS IN THEIR CARE?
5 A. I'D AGREE WITH THAT.
6 Q. AND YOU ALSO AGREE WITH THIS STATEMENT FROM THE AMERICAN
7 MEDICAL ASSOCIATION: THIS INCLUDES PROVIDING EFFECTIVE,
8 PALLIATIVE TREATMENT, EVEN THOUGH IT MAY FORESEEABLY HASTEN
9 DEATH?
10 A. YES.
11 Q. AND BY PALLIATIVE TREATMENT, THAT'S REALLY ONE OF THOSE
12 FANCY WORDS FOR ESSENTIALLY DEALING WITH A DYING PATIENT'S
13 SYMPTOMS SO THAT THEY ARE FREE FROM CERTAIN KINDS OF PAIN
14 AND FREE FROM CERTAIN KINDS OF SUFFERING; ISN'T THAT TRUE?
15 A. YES.
16 Q. AND IT DOESN'T ALWAYS MEAN MEDICATION, BUT IT CERTAINLY
17 CAN MEAN MEDICATION, CORRECT?
18 A. YES.
19 Q. AND IT CERTAINLY CAN MEAN, IN THE MEDICATION SIDE,
20 MORPHINE, TRUE?
21 A. IT CAN.
22 Q. YOU ARE A MEMBER OF THE AMERICAN PAIN ACADEMY, CORRECT?
23 A. I AM.
24 Q. AND YOU'RE AWARE THAT AT TIMES THAT'S AN ORGANIZATION
25 THAT HAS SOME -- OH, SOME INTERESTS, OBVIOUSLY, IN PAIN
2706
1 MANAGEMENT AND PAIN ISSUES; ISN'T THAT RIGHT?
2 A. WELL, THAT'S THEIR PRIMARY INTEREST, YES.
3 Q. YEAH. AND IT'S GENERALLY COMPRISED OF A GROUP OF
4 PHYSICIANS SIMILAR TO YOU WHO HAVE EXPERTISE IN THE PAIN
5 AREA.
6 A. YES.
7 Q. AND IT'S TRUE, IS IT NOT, THAT THEY, EVERY ONCE IN A
8 WHILE, COME OUT WITH CERTAIN STATEMENTS THAT ADDRESS CERTAIN
9 ISSUES OR POLICY ISSUES OR OTHER THINGS RELATED TO PAIN
10 MANAGEMENT?
11 A. THAT'S CORRECT.
12 Q. I'M GOING TO READ YOU A STATEMENT FROM THE AMERICAN PAIN
13 SOCIETY AND ASK YOU IF YOU AGREE WITH THIS STATEMENT. IT
14 SAYS: RESPIRATORY DEPRESSION AND OTHER SIDE EFFECTS. FEAR
15 OF INDUCING RESPIRATORY DEPRESSION IS OFTEN CITED AS A
16 FACTOR THAT LIMITS THE USE OF OPIATES IN PAIN MANAGEMENT.
17 IT IS NOW ACCEPTED BY PRACTITIONERS OF THE SPECIALTY OF PAIN
18 MEDICINE THAT RESPIRATORY DEPRESSION INDUCED BY OPIATES
19 TENDS TO BE A SHORT-LIVED PHENOMENA, GENERALLY OCCURS ONLY
20 IN THE OPIATE NAIVE PATIENT, AND IS ANTAGONIZED BY PAIN.
21 DO YOU AGREE WITH THAT STATEMENT?
22 A. YES.
23 Q. IT GOES ON TO SAY: THEREFORE, WITHHOLDING THE
24 APPROPRIATE USE OF OPIATES -- WHICH WOULD INCLUDE MORPHINE,
25 CORRECT?
2707
1 A. THAT'S RIGHT.
2 Q. FROM A PATIENT WHO IS EXPERIENCING PAIN ON THE BASIS OF
3 RESPIRATORY CONCERNS IS UNWARRANTED.
4 DO YOU AGREE WITH THAT STATEMENT?
5 A. YES.
6 Q. OTHER SIDE EFFECTS, SUCH AS CONSTIPATION, CAN USUALLY BE
7 MANAGED BY ATTENTION TO DIET, ALONG WITH THE REGULAR USE OF
8 STOOL SOFTENERS AND LAXATIVES. SEDATION AND NAUSEA,
9 POSSIBLE EARLY SIDE EFFECTS, USUALLY DISSIPATE WITH
10 CONTINUED USE.
11 DO YOU AGREE WITH THAT STATEMENT?
12 A. YES.
13 Q. AND WHEN THEY SAY "OPIATE NAIVE," THEY'RE REALLY TALKING
14 ABOUT SOMEONE WHO HAS NEVER PREVIOUSLY HAD ESSENTIALLY THE
15 ADMINISTRATION OF OPIATES, CORRECT?
16 A. THAT'S RIGHT.
17 Q. BECAUSE IT'S TRUE, IS IT NOT, THAT ONCE SOMEBODY, FOR
18 EXAMPLE, RECEIVES MORPHINE, THERE IS THE REACTION OF THE
19 BODY TO BUILD UP A TOLERANCE; ISN'T THAT CORRECT?
20 A. OVER THE PERIOD OF TIME.
21 Q. OVER A PERIOD OF TIME.
22 A. WEEKS TO MONTHS TO YEARS.
23 Q. AND, THEREFORE, THE TOLERANCE FACTOR -- FACTOR IS
24 SOMETHING THAT NEEDS TO BE CONSIDERED IN TERMS OF AN
25 APPROPRIATE DOSING LEVEL TO TREAT A PARTICULAR SYMPTOM;
2708
1 ISN'T THAT CORRECT?
2 A. IN A PATIENT WHO HAS BEEN TREATED WITH SIGNIFICANT
3 AMOUNTS OF OPIOIDS BEFORE, YES.
4 Q. NOW, DO YOU BELIEVE THAT SOMEBODY LIKE JUDITH LARSEN,
5 WHO WAS 93-YEARS-OLD AT THE TIME, SUFFERING AS SHE HAD FROM
6 ABOUT A 26-HOUR BOUT OF VOMITING IN THE HOSPITAL, EVIDENCING
7 A GASTROINTESTINAL BLEED, WHO HAD HAD A SEIZURE FOR ABOUT 40
8 TO 45 MINUTES A WEEK BEFORE, AND WHO HAD STOPPED EATING, DO
9 YOU BELIEVE THAT WITHOUT ANY I.V. FLUIDS AS OF THE 30TH OF
10 DECEMBER SHE WAS, IN FACT, SUFFERING?
11 A. I WOULD SAY SHE PROBABLY WAS.
12 Q. AND ISN'T IT TRUE THAT IF SHE WAS NOT APPROPRIATELY
13 MEDICATED FROM THE 30TH OF DECEMBER FORWARD, THAT BECAUSE
14 SHE STOPPED EATING, SHE WOULD HAVE ESSENTIALLY STARVED TO
15 DEATH?
16 A. WITHOUT FOOD OR WATER, LIFE DOES NOT GO ON. YOU'RE
17 RIGHT.
18 Q. AND IT'S TRUE, IS IT NOT, THAT SOMEBODY WHO IS WITHOUT
19 FOOD AND WATER, WHO OTHERWISE IS NOT PROVIDED SOME FORM OF
20 RELIEF THROUGH MEDICATION, WOULD INDEED BE SUFFERING?
21 A. IF THEY'RE CONSCIOUS, WHICH SHE WASN'T.
22 Q. AND THAT'S A VERY INTERESTING STATEMENT BECAUSE IT'S
23 TRUE, IS IT NOT, DOCTOR, THAT IT'S VERY DIFFICULT FOR
24 PHYSICIANS TO KNOW, EVEN IF SOMEBODY IS UNCONSCIOUS, TO WHAT
25 EXTENT THEY MAY IN FACT BE EXPERIENCING PAIN OR SUFFERING;
2709
1 ISN'T THAT CORRECT?
2 A. AGAIN, SUFFERING IMPLIES A CERTAIN LEVEL OF
3 CONSCIOUSNESS.
4 Q. WELL, LET ME GIVE YOU AN EXAMPLE.
5 A. AND IF A PATIENT IS NOT --
6 Q. AS AN ANESTHESIOLOGIST --
7 THE COURT: EXCUSE ME. LET THE DOCTOR ANSWER.
8 A. IF A PATIENT IS NOT CONSCIOUS IT'S -- BY DEFINITION
9 THEY'RE NOT -- NOT SUFFERING IN THE TRUE SENSE OF THE WORD.
10 Q. (BY MR. STIRBA) WELL, LET ME GIVE YOU AN EXAMPLE,
11 DOCTOR. AS AN ANESTHESIOLOGIST YOU'RE -- YOU'RE AWARE THAT
12 THE STANDARD OF MEDICAL PRACTICE IS IF SURGERY IS GOING TO
13 BE CONDUCTED ON A COMATOSE PATIENT, THAT THEY RECEIVE
14 ANESTHESIA; ISN'T THAT CORRECT?
15 A. AS IT'S NEEDED.
16 Q. BECAUSE DOCTORS REALLY DON'T KNOW IF SOMEBODY IS
17 COMATOSE AND THEY'RE GOING TO DO SURGERY, WHETHER OR NOT
18 THAT PATIENT WILL EXPERIENCE PAIN; ISN'T THAT TRUE?
19 A. YES.
20 Q. SIMILARLY, DO YOU BELIEVE THAT MARY CRANE, AT THE TIME
21 OF HER FEVER OF 103 IN THE AFTERNOON OF THE 7TH OF JANUARY
22 OF 1996, WHEN IF YOU READ HER BLOOD LEVELS IN TERMS OF HER
23 WHITE BLOOD COUNT AND HER SEGS WAS EXPERIENCING A SERIOUS
24 INFECTIOUS PROCESS. DO YOU BELIEVE THAT GIVEN THAT PROCESS
25 WAS NOT TO BE TREATED, THAT SHE, IN FACT, WAS SUFFERING?
2710
1 A. SHE WAS ALREADY RECEIVING LOTS OF MEDICATION. SHE WAS
2 ALREADY ON A LARGE DURAGESIC PATCH, SHE WAS RECEIVING OTHER
3 MEDICATIONS IN ADDITION TO THAT. I DON'T KNOW.
4 Q. BECAUSE --
5 A. THAT'S PRETTY -- PRETTY -- I MEAN, SHE WAS ALREADY
6 RECEIVING VERY VIGOROUS TREATMENT.
7 Q. IT'S PRETTY DIFFICULT, ISN'T IT, DOCTOR. YOU SAY YOU
8 DON'T KNOW. IT'S PRETTY DIFFICULT BECAUSE YOU HAVE TO MAKE
9 SOME CLINICAL JUDGMENTS, DON'T YOU?
10 A. WELL, IT WASN'T LIKE SHE WASN'T BEING TREATED ALREADY.
11 THAT'S WHAT I'M SAYING.
12 Q. BUT SHE WASN'T BEING TREATED FOR AN INFECTION, WAS SHE,
13 SIR?
14 A. BUT SHE WAS BEING TREATED FOR -- POTENTIALLY THE
15 TREATMENT SHE WAS ALREADY RECEIVING WOULD HAVE MORE THAN
16 COVERED SUFFERING.
17 THE COURT: MR. STIRBA, HOW MUCH LONGER DO YOU
18 THINK YOU'LL BE?
19 MR. STIRBA: YOUR HONOR, I MAY -- I MAY BE A FEW
20 MORE MINUTES. IF THIS IS THE TIME TO BREAK, WE OUGHT TO DO
21 IT.
22 THE COURT: OKAY. LADIES AND GENTLEMEN, WHAT I'D
23 LIKE TO DO -- I THINK WE'RE -- WHAT I'D LIKE TO DO IS MAKE
24 SURE WE CAN GET THIS WITNESS DONE BEFORE WE TAKE A BREAK AND
25 SO -- WE'VE BEEN GOING FOR OVER AN HOUR, SO I'D LIKE TO TAKE
2711
1 A -- SAY A 15 MINUTE BREAK NOW. WE WILL FINISH THIS WITNESS
2 BEFORE THE LUNCH BREAK. WE MAY BE GOING A LITTLE BIT PAST
3 NOON, BUT IF YOU'LL AGREE WITH THAT THEN THAT'S WHAT I'D
4 LIKE TO DO.
5 DURING THIS BREAK, REMEMBER IT'S YOUR DUTY NOT TO
6 CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW
7 YOURSELVES TO BE ADDRESSED BY ANY PERSON ON THE SUBJECT OF
8 THIS TRIAL. AND THAT IT IS YOUR DUTY NOT TO FORM OR EXPRESS
9 AN OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO YOU.
10 SO LET'S COME BACK JUST SHORTLY AFTER A QUARTER TO.
11 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
12 THE MORNING SESSIONS CONTINUES AT 11:50 WITH JOANNE PRATT
13 REPORTING.)
14
15
16
17
18
19
20
21
22
23
24
25
2712
1 (SECOND HALF OF MORNING BEGINNING AT 11:50:)
2 THE COURT: PLEASE BE SEATED. RECORD WILL REFLECT
3 THAT THE JURY HAS RETURNED AND BOTH COUNSEL AND DEFENDANT
4 ARE PRESENT. MR. STIRBA, WOULD YOU LIKE TO CONTINUE.
5 Q. (BY MR. STIRBA) DOCTOR, IN THE OUTPATIENT PAIN CLINIC
6 UP AT THE UNIVERSITY YOU VERY INFREQUENTLY TREAT FOR PAIN
7 FOLKS WHO HAVE SEVERE DEMENTIA OR ALZHEIMERS; IS THAT RIGHT?
8 A. THAT WOULD BE RIGHT, YES.
9 Q. IN FACT, IS IT FAIR TO SAY THAT PERHAPS MAYBE ABOUT ONE
10 PERCENT OF ALL THE PATIENTS THAT YOU SEE IN THE OUTPATIENT
11 PAIN CLINIC WOULD BE SUFFERING FROM THAT PARTICULAR MALADY?
12 A. I WOULD SAY EVEN LESS THAN THAT. I WOULD SAY, YOU KNOW,
13 IT'S A FAIRLY SMALL PERCENTAGE OF VERY ELDERLY PATIENTS.
14 AND, YOU KNOW, SOME OF THOSE WILL HAVE SOME DIFFICULTIES
15 ALONG THOSE LINES, YES. IT'S A SMALL NUMBER.
16 Q. IT'S TRUE, IS IT NOT, THAT BECAUSE IT'S AN OUTPATIENT
17 CLINIC NORMALLY THE GERIATRIC POPULATION THAT YOU SEE DOES
18 NOT HAVE MEDICALLY UNSTABLE PROBLEMS; IS THAT RIGHT?
19 A. WELL, THAT'S USUALLY THE CASE, YES.
20 Q. IN OTHER WORDS, YOU ARE NOT SEEING THEM GENERALLY IN THE
21 HOSPITAL. YOU ARE SEEING THEM AS AN OUTPATIENT BASIS?
22 A. WE ACTUALLY DO BOTH. WE HAVE AN INPATIENT CONSULTATION
23 SERVICE ALSO, SO SOME PATIENTS WE WOULD SEE WHILE THEY WERE
24 IN THE HOSPITAL.
25 Q. BUT IT'S TRUE, IS IT NOT, THAT GENERALLY THE PERCENTAGE
2713
1 THAT YOU SEE GERIATRIC-WISE DO NOT HAVE EXTENSIVE MEDICAL
2 COMPLICATIONS?
3 A. I WOULD SAY THAT'S RIGHT.
4 Q. AND YOU CHARGE $300 AN HOUR TO TESTIFY AS AN EXPERT; IS
5 THAT RIGHT?
6 A. NO.
7 Q. YOU DON'T CHARGE $300 AN HOUR? WHAT DO YOU CHARGE AS AN
8 EXPERT FEE?
9 A. USUALLY $200.
10 Q. TWO HUNDRED AN HOUR. AND IT'S TRUE, IS IT NOT, DOCTOR,
11 THAT, YOU KNOW, YOU'VE COME IN HERE AND YOU'VE REVIEWED SOME
12 RECORDS AND YOU MADE SOME ALLEGATIONS OR OPINIONS ABOUT
13 DR. WEITZEL'S CARE. IT'S TRUE, IS IT NOT, THAT SOME PEOPLE
14 HAVE MADE SOME ALLEGATIONS AND OPINIONS ABOUT YOUR CARE IN
15 THE PAST; ISN'T THAT CORRECT?
16 A. PROBABLY SO.
17 Q. SPECIFICALLY YOU'VE BEEN SUED TWICE AND SETTLED TWO
18 MALPRACTICE CLAIMS; IS THAT CORRECT?
19 A. I'M NOT SURE ABOUT TWICE. I'M NOT AWARE OF A SECOND.
20 THERE IS ONE IN WHICH I WAS A CO-DEFENDANT MANY YEARS AGO.
21 Q. I HAVE IN FRONT OF ME ONE THAT INVOLVES PLAINTIFF
22 MARJORY RICHARDSON VERSUS DR. BRADFORD HARE, THE UNIVERSITY
23 OF UTAH PAIN CLINIC AND THE UNIVERSITY OF UTAH WHERE
24 MS. RICHARDSON SUED YOU FOR MEDICAL MALPRACTICE IN THE THIRD
25 DISTRICT COURT DOWN IN SALT LAKE. ISN'T THAT TRUE?
2714
1 A. THAT CAME THROUGH A PRE-LITIGATION PANEL. I BELIEVE --
2 I DON'T RECALL THAT WAS EVER RESOLVED.
3 Q. DO YOU RECALL THAT SHE ALLEGED AGAINST YOU --
4 MR. WILSON: OBJECTION, YOUR HONOR, THE RELEVANCY.
5 THE COURT: WHAT DO YOU CLAIM THE RELEVANCY IS?
6 MR. STIRBA: WELL, IT GOES TO HIS CREDENTIALS AND
7 HIS CREDIBILITY AS AN EXPERT WITNESS, YOUR HONOR.
8 THE COURT: OKAY. OVERRULED.
9 Q. (BY MR. STIRBA) AND SHE ALLEGES AGAINST YOU THAT YOU
10 BASICALLY NEGLIGENTLY AND CARELESSLY FAILED TO CONFORM TO
11 THE STANDARD OF CARE AND STANDARDS OF PRACTICE APPLICABLE TO
12 PHYSICIANS IN THEIR RESPECTIVE SPECIALITIES; SPECIFICALLY
13 THAT DURING THE TREATMENT YOU CAUSED PLAINTIFF TO SUFFER OR
14 AGGRAVATE A FRACTURE OF THE LEFT FEMORAL NECK. DO YOU
15 REMEMBER THAT?
16 A. I REMEMBER THE SITUATION, YES.
17 Q. AND YOU FAILED TO -- SHE'S ALLEGED YOU FAILED TO DETECT,
18 DIAGNOSE AND PROPERLY TREAT THE FRACTURED FEMUR?
19 A. THIS WAS A PATIENT WHO WAS SENT TO ME FOR TREATMENT FROM
20 AN ORTHOPEDIC -- VERY PROMINENT ORTHOPEDIC SURGEON AND AT
21 THAT TIME HE DID NOT DIAGNOSE THIS PRIOR TO SENDING THIS
22 PATIENT TO US. SO WE WERE GOING ON THE FAITH THAT THIS HAD
23 ALREADY BEEN ADDRESSED AND TAKEN CARE OF, AND AS A RESULT,
24 THIS DID NOT IN ANY WAY WORSEN HER CARE. AS I SAY, I'M NOT
25 EVEN SURE THIS WAS EVER RESOLVED IN ANY WAY.
2715
1 Q. WELL, I HAVE THE COMPLAINT IN FRONT OF ME --
2 A. YOU HAVE THE COMPLAINT, BUT YOU DO NOT HAVE ANY
3 RESOLUTION OF THAT AND YOU DO NOT HAVE ANY -- ANYTHING
4 BEYOND THAT. SO YES, IT WAS A COMPLAINT.
5 Q. WELL, I DO HAVE SOMETHING BEYOND THIS, SIR. I'LL TELL
6 YOU ABOUT IT SHORTLY. THE COMPLAINT I HAVE DOES NOT MENTION
7 ANYBODY BUT THE THREE DEFENDANTS I'VE JUST IDENTIFIED, NONE
8 OF WHICH INCLUDES THAT PROMINENT ORTHOPEDIC SURGEON. DO YOU
9 UNDERSTAND THAT?
10 A. I DO. BUT AS I SAY, THIS NEVER -- TO MY KNOWLEDGE WAS
11 NEVER RESOLVED. AT LEAST I WAS NEVER INFORMED THAT IT WAS.
12 Q. I ALSO HAVE AN ORDER -- STIPULATION, MOTION AND ORDER
13 AND THAT STIPULATION AND MOTION SAYS, THE PARTIES HERETO
14 THROUGH THEIR RESPECTIVE COUNSEL OF RECORD HEREBY STIPULATE
15 AND MOVE THAT THE ABOVE-TITLED ACTION BE DISMISSED WITH
16 PREJUDICE AND ON THE MERITS. EACH OF THE PARTIES TO BEAR
17 THEIR OWN COSTS INCURRED. SAID ACTION HAVING BEEN FULLY
18 COMPROMISED AND SETTLED TO THE SATISFACTION OF THE PARTIES.
19 DO YOU REMEMBER THAT?
20 A. NO, I DON'T.
21 Q. AND, IN FACT, THIS MATTER WAS SETTLED?
22 A. WHAT WAS THE DATE ON THAT, PLEASE?
23 Q. AUGUST 23RD OF 1988.
24 A. SO OVER 12 YEARS AGO. OKAY.
25 Q. THEN YOU ALSO WERE SUED BY A GEORGETTE LITTLE?
2716
1 A. YES.
2 Q. MS. LITTLE SUED DR. FINE, DR. HARE, DR. LINSCOTT, THE
3 UNIVERSITY OF UTAH, THE UNIVERSITY OF UTAH HOSPITAL, THE
4 UNIVERSITY OF UTAH BEHAVIORAL MEDICINE AND PAIN CENTER AND
5 JANE AND JOHN DOES, ONCE AGAIN FILED IN THE THIRD DISTRICT
6 COURT IN SALT LAKE COUNTY. DO YOU REMEMBER THAT SUIT?
7 A. I DO.
8 Q. AND SPECIFICALLY SHE ALLEGED IN HER COMPLAINT THAT
9 DR. HARE WAS ONE OF HER ATTENDING PHYSICIANS; IS THAT RIGHT?
10 A. I WAS NOT THE PRIMARY ONE; I WAS ONE, YES.
11 Q. AND SHE ACCUSED OR, RATHER, ALLEGED IN THE COMPLAINT
12 THAT BASICALLY YOU FAILED TO DIAGNOSE AND TAKE ADEQUATE
13 PRECAUTIONS TO PREVENT THE INTRODUCTION OF AN EPIDURAL
14 INFECTION IN PLAINTIFF AND PERFORMED THE SURGICAL PROCEDURE
15 IN AN INADEQUATE FASHION AND THEREBY GREATLY INCREASING THE
16 RISK OF EPIDURAL INFECTION. AND SHE GOES ON TO SAY AS A
17 RESULT OF THAT SHE WAS PERMANENTLY INJURED AND HAD TO GET
18 ADDITIONAL SURGERY I BELIEVE AT AN ADDITIONAL HOSPITAL. DO
19 YOU REMEMBER THOSE ALLEGATIONS?
20 A. I DO.
21 Q. AND, ONCE AGAIN, THIS PARTICULAR MATTER, I HAVE AN
22 ORDER, DOCTOR, STIPULATION AND MOTION AND ORDER OF DISMISSAL
23 WHICH IS DATED THE 27TH OF NOVEMBER OF 1990. IT SAYS
24 PLAINTIFF AND DEFENDANT BY AND THROUGH THEIR COUNSEL OF
25 RECORD HEREBY STIPULATE AND JOINTLY MOVE THIS COURT FOR ITS
2717
1 ORDER DISMISSING THIS ACTION AND PLAINTIFF'S COMPLAINT
2 HEREIN WITH PREJUDICE, THE MATTER HAVING BEEN FULLY
3 COMPROMISED AND SETTLED BETWEEN THE PARTIES. THE PARTIES
4 ARE TO BEAR THEIR OWN RESPECTIVE COSTS AND ATTORNEYS FEES.
5 DO YOU REMEMBER SETTLING THIS LAWSUIT?
6 A. YES.
7 Q. AND ALSO, DOCTOR, IT'S TRUE, IS IT NOT, THAT YOU HAVE
8 BEEN ACCUSED YOURSELF AS A PHYSICIAN OF OVERSEDATING
9 PATIENTS; ISN'T THAT CORRECT?
10 A. I PRESCRIBE MEDICATIONS AS ANESTHESIOLOGIST AND AS A
11 PAIN TREATMENT PHYSICIAN AND I DON'T DOUBT AT TIMES PATIENTS
12 HAVE BECOME SEDATED WITH THEM AS ONE OF THE MOST COMMON SIDE
13 EFFECTS. SO THAT WOULD BE STRANGE IF IT HADN'T OCCURRED.
14 Q. SO IF A DOCTOR PRESCRIBES SEDATING MEDICATIONS, THERE
15 ARE TIMES WHEN OVERSEDATION IS SOMETHING THAT OCCURS; IS
16 THAT RIGHT?
17 A. BUT IT'S SOMETHING THAT ALSO NEEDS TO BE RECOGNIZED AND
18 CORRECTED RATHER THAN JUST PROMULGATED AND BUILT UPON.
19 Q. WELL, IN THIS PARTICULAR CASE INVOLVING RITA THOMPSON
20 SHE ALLEGES AND WAS COMPLAINING AGAINST YOU THAT HER HUSBAND
21 DIED AS A RESULT OF YOUR NEGLIGENT USE OF MEDICATION. DO
22 YOU REMEMBER THAT LAWSUIT?
23 A. COULD YOU TELL ME THE DATE ON THIS, PLEASE?
24 Q. THIS WAS FILED IN JANUARY OF 1986 IN THE THIRD DISTRICT
25 COURT. AND MISS THOMPSON, RITA THOMPSON, ON BEHALF OF THE
2718
1 ESTATE OF HER HUSBAND HAS ALLEGED THAT RONALD THOMPSON CAME
2 UNDER THE CARE AND TREATMENT OF DOCTORS BRADFORD HARE AND
3 WILLIAM HAMILTON WHO UNDERTOOK TO TREAT THE DECEDENT FOR
4 CHRONIC BACK PAIN, AND AS A RESULT OF WHAT SHE'S ALLEGING
5 YOUR NEGLIGENT USAGE OF MEDICATION AND YOUR FAILURE TO
6 PROPERLY MONITOR AND SUPERVISE THE ADMINISTRATION OF
7 MEDICATION, MR. THOMPSON DIED. DO YOU REMEMBER THAT?
8 A. I DO. THIS WAS ALSO A PATIENT WHO HAD A VERY
9 COMPLICATED CARDIAC HISTORY AND WHEN WE LOOKED INTO THIS WE
10 FOUND THAT THIS MAN DIED OF HIS CARDIAC DISEASE RATHER THAN
11 ANYTHING TO DO WITH PAIN MEDICATIONS AND NOTHING EVER CAME
12 OF THIS SUIT. Hmmmm...
13 Q. WELL, NOTHING EVER CAME OF THE SUIT BECAUSE THE
14 PLAINTIFFS EVENTUALLY FAILED TO PROSECUTE IT; IS THAT RIGHT?
15 A. NOTHING EVER CAME OF IT. WELL, IT WAS NEVER -- I MEAN,
16 THE ALLEGATIONS WERE MADE. THERE WAS NEVER ANY PROOF OF ANY
17 OF THAT.
18 MR. STIRBA: THAT'S ALL I HAVE, YOUR HONOR. THANK
19 YOU.
20 THE COURT: MR. WILSON?
21 REDIRECT EXAMINATION
22 BY MR. WILSON:
23 Q. FIRST OF ALL, DR. HARE, CALLING YOUR ATTENTION TO THE
24 VARIOUS RESPIRATION CHARTS THAT WERE SHOWN TO YOU BY
25 COUNSEL?
2719
1 A. YES.
2 Q. CAN YOU TELL US AS A GENERAL MANNER IN YOUR REVIEW OF
3 THE RECORDS HOW OFTEN THOSE RESPIRATIONS WERE TAKEN?
4 A. TYPICALLY ONCE A SHIFT. THAT'S ABOUT EVERY EIGHT HOURS.
5 Q. OKAY. SO ON THOSE DAILY CHARTS, HOW MANY RESPIRATIONS
6 WOULD BE NOTED?
7 A. TYPICALLY THREE.
8 Q. OKAY. IN RESPECT TO YOUR REVIEW OF THE RECORDS, WERE
9 THOSE RESPIRATION CHARTS -- WERE THEY INDICATIVE OR WERE
10 THEY IMPORTANT TO YOU IN MAKING YOUR REVIEW OF THE RECORDS?
11 A. I CERTAINLY REVIEWED THEM, BUT I ALSO FOUND MANY
12 DISCREPANCIES FROM THOSE CHARTS IN THE CLINIC NOTES
13 DESCRIBING PATTERNS OF RESPIRATION VERY DIFFERENT THAN WHAT
14 WAS INDICATED IN THOSE CHARTS.
15 Q. OKAY. IN RESPECT TO THE ADMINISTRATION OF THE SUBSTANCE
16 OF MORPHINE SULFATE, YOU PREVIOUSLY TESTIFIED ON
17 CROSS-EXAMINATION THAT YOU WOULD REACH THE PEAK EFFECT IN
18 APPROXIMATELY 60 MINUTES AFTER THE ADMINISTRATION
19 INTRAMUSCULARLY; IS THAT CORRECT?
20 A. THAT'S RIGHT. THAT'S CORRECT.
21 Q. DO YOU KNOW WHETHER OR NOT -- OR DO YOU IN THE PRACTICE
22 OF ADMINISTERING MORPHINE, DOES IT NECESSITATE A MORE
23 FREQUENT MONITORING OF THE PATIENT'S RESPIRATION IN ORDER TO
24 DETERMINE THE EFFECT OF THE MORPHINE?
25 A. YES. WITH MORPHINE IN PARTICULAR, THE RESPIRATORY RATE
2720
1 OUGHT TO BE MEASURED AND NOTED AT THE TIME IT'S HAVING ITS
2 PEAK EFFECT AND THAT ALLOWS US KNOWING THE PATIENT IS
3 GETTING TOO MUCH MORPHINE. YOU KNOW, WHETHER THE DOSE OUGHT
4 TO BE CHANGED, WHETHER THE DOSE OUGHT TO BE HELD. AND
5 THAT'S VERY IMPORTANT IN THE ADMINISTRATION OF MORPHINE.
6 Q. AND WHY IS THAT, SIR?
7 A. AGAIN, WITH MORPHINE, THERE ISN'T A HUGE DIFFERENCE
8 BETWEEN THE DOSE THAT CAN BE USED FOR PAIN RELIEF AND THE
9 DOSE THAT CAUSES SIGNIFICANT RESPIRATORY DEPRESSION, SO
10 WE'RE RIDING A FAIRLY FINE LINE WITH THAT. AND IF WE ARE
11 WANTING TO GET IN A PATIENT WITH PAIN AND WE'RE GIVING THEM
12 MORPHINE, WE WANT TO MAXIMIZE THEIR PAIN CONTROL. BUT ON
13 THE OTHER HAND, WE DON'T WANT TO COMPROMISE THINGS LIKE THE
14 BREATHING, THEIR LEVEL OF CONSCIOUSNESS, THEIR ABILITY TO
15 CLEAR SECRETIONS, THEIR BLOOD PRESSURE AND OTHER THINGS THAT
16 CAN CERTAINLY BE AFFECTED BY THE MORPHINE.
17 Q. ASSUMING A PERSON IS NOT SUFFERING ANY KIND OF PAIN AND
18 THEY'RE ADMINISTERED MORPHINE, DOES PAIN EVALUATION PLAY A
19 SIGNIFICANT ROLE IN THAT MONITORING AND EVALUATION PROCESS?
20 A. WELL, SURELY. AGAIN, YOU KNOW, WE NEED TO HAVE THE
21 DIAGNOSIS OF A PAINFUL CONDITION TO GIVE THE MORPHINE TO
22 BEGIN WITH. AND THEN WHEN WE ARE GIVING THE MORPHINE WE
23 HAVE TO HAVE SOME WAY OF ASSESSING WHETHER WE'RE GETTING THE
24 BENEFIT THAT WE WANT FROM THE MORPHINE, IS THE PATIENT
25 GETTING ADEQUATE PAIN RELIEF, IS THE PATIENT GETTING NO PAIN
2721
1 RELIEF, DOES THE PATIENT NEED A HIGHER DOSE, DOES THE
2 PATIENT NEED A LOWER DOSE, AND SO ON.
3 Q. IN RESPECT TO THE PAIN ITSELF, DOES THAT HAVE ANY IMPACT
4 AND ABILITY -- EXCUSE ME. LET ME SEE IF I CAN ARTICULATE
5 THIS CORRECTLY. DOES THE PAIN PLAY A ROLE IN THE ABILITY OF
6 THE PATIENT TO TOLERATE THE MEDICATION OR THE MORPHINE?
7 A. YES, IT DOES. A PATIENT WITH PAIN WILL BE ABLE TO
8 WITHSTAND A LARGER DOSE OF MORPHINE THAN A PATIENT WITHOUT
9 PAIN.
10 Q. DOES THE PROCESS OF PAIN ALSO PLAY A ROLE IN IMPACTING
11 OTHER ORGANS OF THE BODY IN TERMS OF A DETRIMENTAL IMPACT?
12 A. UNDER CERTAIN CIRCUMSTANCES, FOR INSTANCE, A PATIENT WHO
13 HAS HAD SURGERY, IF THE PATIENT IS GETTING INADEQUATE PAIN
14 RELIEF AND ISN'T ABLE TO BREATHE AS DEEPLY AS THEY NORMALLY
15 WOULD, THEN CERTAINLY THE PAIN COULD IMPACT THEIR BREATHING
16 AND MAYBE CAUSE THEM TO GET COLLAPSED AREAS IN THEIR LUNG
17 AND CAUSE PROBLEMS ALONG THOSE LINES. IT ALSO --
18 INADEQUATELY TREATED PAIN CAN CAUSE BLOOD PRESSURE HIGHER
19 THAN NORMAL. AND SOMEBODY WITH SIGNIFICANT CORONARY ARTERY
20 DISEASE, FOR INSTANCE, THAT MIGHT PUT AN UNDUE STRESS ON THE
21 HEART. SO CERTAINLY A LOT OF VERY GOOD REASONS TO TREAT
22 PAIN WHEN IT'S PRESENT.
23 Q. I TAKE IT THE FIRST THING IS TO EVALUATE FOR PAIN?
24 A. ABSOLUTELY.
25 Q. YOU TALKED A LITTLE BIT ABOUT THE MOBILITY FACTOR OF A
2722
1 PATIENT, GETTING THEM UP AND MOVING THEM AROUND. IS THAT
2 ESPECIALLY TRUE IN ELDERLY PATIENTS?
3 A. IT'S TRUE IN ANY PATIENTS BUT I THINK EVEN A GREATER
4 CONCERN IN ELDERLY PATIENTS. IF THE PATIENT IS IMMOBILIZED
5 FOR EVEN A SHORT PERIOD OF TIME, MEANING EVEN A DAY OR TWO,
6 THEIR CARDIOVASCULAR SYSTEM SUFFERS. THEY LOSE STRENGTH.
7 THEY ARE VERY LIKELY TO DEVELOP PROBLEMS WITH THEIR LUNGS
8 BECAUSE THEY ARE NOT ABLE TO BREATHE DEEPLY ENOUGH. SO, YOU
9 KNOW, IF A MEDICAL CONDITION OR MEDICATIONS LIKE IN THIS
10 SITUATION CAUSE THE PATIENT TO BE IMMOBILIZED, THAT'S ONLY
11 GOING TO COMPLICATE IF THEY DO HAVE PRE-EXISTING MEDICAL
12 CONDITIONS AND ACTUALLY EVEN CREATE SOME CONDITIONS IN AND
13 OF ITSELF.
14 Q. THE DISEASE PROCESSES THAT COUNSEL TALKED TO YOU ABOUT
15 THAT WERE EVIDENT OR DIAGNOSED IN A NUMBER OF THESE
16 PATIENTS, CAN YOU TELL US IN PARTICULAR -- LET'S FOCUS ON
17 LYDIA SMITH FIRST.
18 I THINK COUNSEL TALKED TO YOU ABOUT CARDIOVASCULAR --
19 MAYBE IT WAS CARDIOVASCULAR DISEASE DISORDER. HE ALSO
20 TALKED TO YOU ABOUT HEART ARRHYTHMIAS AND CONGESTIVE HEART
21 FAILURE ALL BEING DISEASE PROCESSES THAT COULD RESULT IN
22 DEATH; IS THAT CORRECT?
23 A. HE DID, YES.
24 Q. OKAY. I THINK YOUR ANSWERS TO THOSE QUESTIONS WAS THAT,
25 YES, IT CAN CAUSE A TERMINAL EVENT; IS THAT CORRECT?
2723
1 A. YES.
2 Q. NOW, THE PROCESS THAT YOU OBSERVED IN THESE MEDICAL
3 RECORDS OCCURRING JUST PRIOR TO DEATH, CAN YOU TELL US, DOES
4 THAT -- DOES WHAT YOU SEE REFLECTED IN THE MEDICAL RECORDS
5 AND REPORT, WAS THAT CONSISTENT WITH ANY ONE OF THESE TYPES
6 OF DISEASE PROCESSES?
7 A. NOT THAT I COULD CLEARLY SEE, NO.
8 Q. OKAY. TELL ME, WOULD THE ADMINISTRATION OF MORPHINE IF
9 AN INDIVIDUAL WAS SUFFERING FROM ANY ONE OF THOSE TYPES OF
10 DISEASE PROCESSES, WOULD THAT CREATE ANY KIND OF DETRIMENTAL
11 EFFECT AS FAR AS THE DISEASE ITSELF?
12 A. WELL, BOTH THE MORPHINE AND THE OTHER SEDATING
13 MEDICATIONS, BECAUSE THEY HAVE AFFECTS ON THE PATIENT'S
14 BREATHING, ON THEIR OXYGEN IN THEIR BLOOD, THEIR BLOOD
15 PRESSURE AND A NUMBER OF OTHER THINGS, COULD CERTAINLY HAVE
16 DETRIMENTAL EFFECTS ON HEART DISEASE, CEREBROVASCULAR
17 DISEASE AND A NUMBER OF OTHER THINGS. LOW BLOOD PRESSURE,
18 FOR INSTANCE, IN A PATIENT WITH EITHER CEREBROVASCULAR
19 DISEASE OR CORONARY ARTERY DISEASE. FOR INSTANCE, WITH
20 CORONARY ARTERY DISEASE, THE HEART DOESN'T GET ENOUGH OXYGEN
21 AND THE HEART BEGINS TO SUFFER DAMAGE, SO CLEARLY THAT CAN
22 HAVE A DETRIMENTAL EFFECT.
23 Q. OKAY. DID YOU, SIR, ALSO IN RESPECT TO THE PATIENT
24 JUDITH LARSEN, YOU WERE ASKED THE QUESTION ABOUT SHE STOPPED
25 EATING AND DRINKING. DO YOU REMEMBER THAT QUESTION?
2724
1 A. YES.
2 Q. AND THAT I THINK YOUR ANSWER WAS THAT GIVEN THE FACT
3 THAT SHE WAS NOT DRINKING OR EATING OR RECEIVING I.V.
4 FLUIDS, SHE COULD DIE WITHIN A RELATIVELY SHORT TIME FRAME;
5 IS THAT RIGHT?
6 A. YES.
7 Q. DO YOU HAVE AN OPINION AS TO WHY JUDITH LARSEN STOPPED
8 EATING?
9 A. SHE WAS OVERMEDICATED.
10 Q. AND AS YOU PREVIOUSLY TESTIFIED AS TO THE ARRHYTHMIAS,
11 YOUR ANSWER, I GUESS, WOULD BE THE SAME IN THAT CATEGORY AS
12 FAR AS JUDITH LARSEN GOES; IS THAT CORRECT?
13 A. YES. AGAIN, WITH THE COMPOUNDING OF CHRONIC SEDATION,
14 NOT BREATHING, LOW BLOOD PRESSURE, NOT NECESSARILY TALKING
15 ABOUT LOW BLOOD PRESSURE FOR HER, BUT JUST THE OVERALL
16 COMPROMISE, DECREASED HYDRATION, ALL OF THOSE THINGS PUT A
17 STRAIN ON OTHER BODY SYSTEMS LIKE THE HEART AND CAN BRING ON
18 SOME OF THESE OTHER PROBLEMS.
19 Q. I'M GOING TO PUT ON THE SCREEN HERE WHAT'S IDENTIFIED AS
20 MED -- THIS IS IN MARY CRANE'S MEDICAL RECORDS -- MED-00249.
21 PUT IT UP LIKE THAT. YOU WERE ASKED A QUESTION, DOCTOR, AS
22 TO WHETHER OR NOT THERE WAS ANY NOTES OR MEDICAL RECORDS
23 WHICH REFLECTED THAT MARY CRANE WAS SUFFERING FROM ANY KINDS
24 OF PNEUMONIA. DO YOU REMEMBER THAT QUESTION?
25 A. YES.
2725
1 Q. AND YOU WERE SEARCHING TO GO TO A MEDICAL RECORD AT THAT
2 POINT. DOES THIS MEDICAL RECORD -- IS THIS THE RECORD THAT
3 YOU WERE LOOKING FOR?
4 A. YES, IT IS.
5 Q. OKAY. CAN YOU TELL US WHERE IT IS IN THAT MEDICAL
6 RECORD THAT THERE WERE SOME INDICATIONS THAT YOU PERCEIVED
7 TO BE ILLUSTRATIVE OF THE PATIENT SUFFERING PNEUMONIA?
8 A. LOOKING THERE AT -- LOOK AT MY -- WHAT WAS THE NUMBER ON
9 THAT AGAIN, PLEASE?
10 Q. THAT'S MED-00249. IT LOOKS LIKE I'VE GOT IT TOO LOW.
11 CAN YOU FIND THAT IN THE MEDICAL RECORD?
12 A. YES. YES, SIR.
13 Q. OKAY.
14 THE COURT: DOWN HERE OR WHERE?
15 THE WITNESS: YES. THE QUESTION WAS, I HAD BROUGHT
16 UP THE FACT THAT --
17 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. HE'S
18 EDITORIALIZING. HE HAS TO ANSWER THE QUESTION.
19 THE COURT: ASK YOUR QUESTION AND ANSWER THE
20 QUESTION.
21 Q. (BY MR. WILSON) IS THERE ANYTHING IN THAT MEDICAL
22 RECORD WHICH INDICATES TO YOU THAT THIS PATIENT WAS HAVING
23 PROBLEMS WITH SOME KIND OF ASPIRATION OR PNEUMONIA?
24 A. YES. IT IS POINTED OUT HERE THAT PROBABLY ASPIRATION IS
25 ONE OF DR. DIENHART'S -- THAT'S HIS DIAGNOSIS AT THAT POINT.
2726
1 Q. SO DR. DIENHART SAID ARE PROBABLE ASPIRATIONS?
2 A. YES.
3 Q. OKAY. BELOW THAT HE TALKS ABOUT THE SEPSIS, DID HE NOT?
4 MR. WILSON: EXCUSE ME.
5 THE COURT: COULD YOU LIFT THAT UP SO THE JURY CAN
6 SEE.
7 Q. (BY MR. WILSON) HE TALKS ABOUT POSSIBLE SEPSIS, DOES
8 HE NOT?
9 A. YES.
10 Q. AND WHAT'S THE WORD BEFORE THAT. HYPO --
11 A. BEFORE?
12 Q. BEFORE POSSIBLE SEPSIS RIGHT HERE.
13 A. HIS WRITING IS PRETTY BAD.
14 Q. PARDON?
15 A. HIS WRITING IS A LITTLE DIFFICULT TO READ.
16 Q. OKAY. WAS THERE ANYTHING OTHER THAN DR. DIENHART'S NOTE
17 AS TO A POSSIBLE SEPSIS THAT MADE YOU BELIEVE THIS
18 INDIVIDUAL WAS -- WOULD BE SUFFERING FROM ANY SEPSIS?
19 A. I MEAN, THERE WERE SEVERAL THINGS GOING ON. YOU KNOW,
20 SHE'S BEEN REQUIRING THROUGH THIS TIME AND PRIOR TO THIS
21 INCREASING OXYGEN. THEY HAVE HAD TO GIVE HER EXTRA OXYGEN.
22 HER OXYGEN SATURATION WAS LOW, THAT CERTAINLY WOULD BE
23 CONSISTENT WITH THE ASPIRATION PNEUMONIA. THAT IN AND OF
24 ITSELF COULD CAUSE FEVER. THAT COULD CAUSE SOME SIGNS OF
25 SEPSIS. AS I RECALL, SHE HAD A URINARY -- SOME INDICATIONS
2727
1 OF URINARY TRACT INFECTION. SHE HAS THIS OTHER CONDITION
2 THAT WE TALKED ABOUT THAT MIGHT EXPLAIN AN INFECTION, BUT IT
3 CERTAINLY DIDN'T SEEM THAT THAT -- THAT THAT WAS THE BEST
4 EXPLANATION. THAT SHE HAD AT THIS POINT A NUMBER OF OTHER
5 THINGS ONGOING THAT -- THAT DEPRESSED RESPIRATION. PERIODS
6 OF APNEA, A NUMBER OF THINGS THAT INDICATED THAT THE
7 MEDICATION SHE WAS RECEIVING -- OR AT LEAST ONE THING WOULD
8 BE THAT THE MEDICATION SHE WAS RECEIVING WAS COMPROMISING
9 HER BODILY FUNCTIONS.
10 Q. OKAY. DID YOU EVER HAVE OCCASION TO REVIEW THE AUTOPSY
11 REPORT ON MARY CRANE?
12 A. I DID.
13 Q. DID YOU NOTE WHETHER OR NOT THERE WAS ANY FINDING
14 RELATIVE TO SEPSIS IN THE AUTOPSY REPORT?
15 A. THE -- AS I RECALL -- THE FISTULA THAT SHE HAD WAS
16 CONFIRMED. I DON'T BELIEVE THERE WERE ANY OTHER FINDINGS
17 THAT -- TO SUPPORT THAT.
18 Q. YOU'VE PREVIOUSLY TESTIFIED THAT WE TALKED ABOUT THE
19 RESPIRATION CHARTS THEMSELVES AND I THINK YOU INDICATED
20 THERE WAS SOME INCONSISTENCIES. I SHOW YOU -- WHAT'S THE
21 DOCUMENT -- THAT'S MED-00078 WHICH IS THE MEDICAL RECORD OF
22 ENNIS ALLDREDGE. THIS BEARS THE DATE OF 1/14/96. HAVE YOU
23 FOUND THAT?
24 A. ABOUT TO. YES, I HAVE.
25 Q. I WOULD LIKE YOU TO JUST READ DOWN THROUGH THAT AND TELL
2728
1 US IF THERE'S ANY INDICATION THERE AS TO WHAT HIS
2 RESPIRATIONS ARE.
3 A. DO YOU WANT ME TO READ -- START AT THE TOP AND READ DOWN
4 THROUGH OR JUST PICK OUT --
5 Q. JUST PICK OUT THE AREAS THAT YOU THINK ARE INDICATIVE OF
6 SLOW RESPIRATION.
7 A. IN THE VERY TOP PART TALKING ABOUT THICK MUCOUS DRAINAGE
8 FROM THE MOUTH. LUNGS WITH RALES, THAT'S NOISY LUNG SOUNDS
9 WHICH INDICATE CONGESTION AND CYANOTIC EXTREMITIES WHICH
10 WOULD INDICATE THAT HE'S PROBABLY NOT GETTING ENOUGH OXYGEN
11 AT THAT POINT. What??
12 Q. LET ME REPHRASE THE QUESTION. IN TERMS OF -- ARE THERE
13 OTHER SIGNS OR INDICATORS OTHER THAN THE RESPIRATION AS TO
14 THE DEPRESSANT EFFECT OF MORPHINE?
15 A. ABOUT HALFWAY DOWN THE PAGE IT'S MENTIONED THAT THE
16 MORPHINE AND ATIVAN ARE GIVEN. THE PATIENT IS APNEIC FOR 60
17 SECONDS. THAT MEANS THEY ARE NOT BREATHING FOR A MINUTE AT
18 A TIME WHICH IS VERY DEPRESSED RESPIRATION. THE HEART RATE
19 IS TACHYCARDIC WHICH MEANS IT'S VERY FAST AND THREADY. I'M
20 ASSUMING THAT'S THE PULSE WHICH MEANS IT'S VERY WEAK AT THAT
21 POINT WHICH WOULD INDICATE THAT BLOOD PRESSURE IS QUITE LOW.
22 Q. OKAY. GOING DOWN TO THE BOTTOM RIGHT AT 9:30. WHAT
23 DOES THAT NOTE SAY?
24 A. PATIENT CONDITION DECLINING. RESPIRATIONS EVERY 80
25 SECONDS -- SO THAT'S LESS THAN A MINUTE -- WITH GASPING
2729
1 NOTED. HEART RATE TACHYCARDIC AND WEAK. IT SAYS
2 ATYPICALLY, MEANS THEY ARE LISTENING TO THE CHEST.
3 Q. ON THAT PARTICULAR DATE MORPHINE WAS ADMINISTERED AT
4 EIGHT O'CLOCK; IS THAT CORRECT?
5 A. THAT'S CORRECT.
6 Q. DO YOU SEE THE PEAK EFFECT OF THE MORPHINE ON THOSE
7 PARTICULAR NOTES?
8 A. WELL, AGAIN, THE PEAK EFFECT WOULD BE -- WOULD BEGIN TO
9 OCCUR AT ROUGHLY AN HOUR AFTER AND CONTINUE FOR SOME TIME
10 AND CERTAINLY INTO THE TIME WHEN HIS RESPIRATIONS BECOME
11 WORSE. AND HE THEN AT 9:36 WAS -- I GUESS THEY DECIDED THAT
12 HE HAD DIED AT THAT POINT, SO THAT WAS ABOUT AN HOUR AND A
13 HALF.
14 Q. AT 9:20 THERE'S A NOTE AGAIN THAT SAYS, PATIENT TO BE
15 GIVEN N.O.W. ORDER OF 10 MILLIGRAMS MORPHINE I.M. AND
16 ATIVAN?
17 A. YES.
18 Q. WAS THAT PARTICULAR MEDICATION HELD?
19 A. I RECALL THAT IT PERHAPS WAS. LET ME JUST CHECK. YES,
20 THAT ORDER WAS HELD.
21 Q. OKAY. NOW, IF YOU COULD LOOK AT THE MEDICAL RECORDS OF
22 JUDITH LARSEN. I'M TURNING TO MED PAGE 00589, IF YOU WOULD,
23 PLEASE --
24 A. OKAY.
25 Q. -- FIND IT. READING AT THE TOP, IS THERE ANY NOTE AS IT
2730
1 RELATES TO HER RESPIRATIONS AT THAT TIME?
2 A. SAYS THAT MORPHINE WAS HELD TIMES THREE BECAUSE OF
3 RESPIRATIONS AND DECREASED RESPIRATIONS FIVE TO EIGHT.
4 Q. OKAY. NOW, WHEN IT SAYS MORPHINE HELD TIMES THREE, WHAT
5 DOES THAT MEAN?
6 A. THAT MEANS THREE DOSES WERE DUE TO BE GIVEN BUT THAT
7 THEY WERE NOT GIVEN BECAUSE OF THE RESPIRATION.
8 Q. BECAUSE OF THE RESPIRATIONS. READING ON DOWN FURTHER,
9 ARE THERE ANY FURTHER NOTES INDICATING THAT THERE WAS ANY
10 CHANGE IN HER RESPIRATION? I'M SORRY. I'M SORRY. I DON'T
11 HAVE IT. LET'S GO TO THE NEXT PAGE, IF YOU WOULD, THE
12 MED-590.
13 AT THE TOP OF THE PAGE IT INDICATES MORPHINE WAS
14 ADMINISTERED?
15 A. YES.
16 Q. OKAY. DO YOU SEE FURTHER INDICATIONS IN THE RECORD
17 ITSELF WHICH WOULD INDICATE TO YOU THAT SHE WAS SUFFERING
18 FROM TOXICITY OF THE MORPHINE?
19 A. ABOUT TWO HOURS AFTER THAT DOSE OF MORPHINE WAS GIVEN,
20 IT'S MENTIONED THAT THE EXTREMITIES WERE CYANOTIC. THAT
21 WOULD GENERALLY BE BECAUSE THERE'S NOT ENOUGH OXYGEN GOING
22 TO THE EXTREMITIES. It's also seen when someone is dying.
23 Q. DOWN AT THE VERY BOTTOM IN THE NOTE AT 2:10, CAN YOU SEE
24 THAT NOTE?
25 A. YES.
2731
1 Q. LET ME PUSH IT UP FOR THE JURY. WHAT DOES THAT NOTE
2 SAY, READING RIGHT --
3 A. IT SAYS, "PATIENT WITHOUT VITAL SIGNS PRESENT." IN
4 OTHER WORDS, HEART RATE, BREATHING AND SO ON.
5 Q. YOU WERE ASKED A NUMBER OF QUESTIONS ABOUT A CONDITION
6 CALLED DYSPNEA?
7 A. YES.
8 Q. IN YOUR OPINION, DID ANY OF THESE FIVE PATIENTS HAVE
9 SYMPTOMS THAT YOU WOULD CATEGORIZE AS DYSPNEA?
10 A. NO.
11 Q. AND WHY NOT?
12 A. WELL, AGAIN, DYSPNEA TECHNICALLY MEANS -- DYSP MEANS
13 DIFFICULT OR UNCOMFORTABLE AND THE OTHER PART OF THE WORD
14 MEANS BREATHING. AND AGAIN, THIS IS A REPORT THAT PATIENTS
15 CAN GIVE. I'M HAVING TROUBLE BREATHING. I DON'T FEEL LIKE
16 I'M GETTING ENOUGH AIR. AND IN THE CASE OF THESE PATIENTS,
17 THEY WERE HAVING DIFFICULTY WITH THEIR BREATHING BUT IT
18 WASN'T BECAUSE OF AN ONGOING DISEASE PROCESS LIKE CHRONIC
19 LUNG DISEASE OR A CANCER IN A LUNG OR SOMETHING LIKE THIS.
20 THEY WERE HAVING -- THEIR ONLY PROBLEMS WITH BREATHING WERE
21 THAT THE BREATHING WAS DEPRESSED, AND WITH HEAVY SEDATION
22 AND WITH MEDICATIONS, THIS JUST CHANGED THEIR BREATHING
23 PATTERN. IT DIDN'T CAUSE THEM DISTRESS IN BREATHING, BUT
24 JUST CHANGED THEIR BREATHING PATTERN.
25 Q. WOULD THE ADMINISTRATION OF MORPHINE FOR ANY OF THESE
2732
1 PATIENTS' BREATHING PATTERNS BE APPROPRIATE?
2 A. THE BREATHING PATTERNS WERE PROBABLY ABNORMAL BECAUSE OF
3 THE MORPHINE AND THE OTHER SEDATING MEDICATIONS, SO I WOULD
4 SAY NO.
5 Q. A FEW QUESTIONS ABOUT PALLIATIVE CARE. YOU'VE TESTIFIED
6 THAT PALLIATIVE CARE IS APPROPRIATE IN CERTAIN SITUATIONS.
7 AND YOU ARE FAMILIAR WITH THE CONCEPT OF PALLIATIVE; IS THAT
8 RIGHT?
9 A. YES.
10 Q. HOW DOES ONE -- HOW DOES A PATIENT COME TO BE DESIGNATED
11 AS APPROPRIATE FOR THE PALLIATIVE CARE?
12 A. WOULD TYPICALLY BE A PATIENT WITH A CHRONIC PROGRESSIVE
13 DISEASE. PROBABLY THE MOST COMMON WOULD BE SOMEBODY WITH So what do these have?
14 CANCER. THEY HAVE HAD DEFINITIVE TREATMENT FOR THAT DISEASE
15 PROCESS AND YET DESPITE THAT -- DEFINITIVE TREATMENT, I
16 MEAN. FOR INSTANCE, SOMEBODY WHO'S HAD TREATMENT FOR CANCER
17 AND YET DESPITE THAT, THE DISEASE CONTINUES TO PROGRESS AND,
18 YOU KNOW, THEY WERE AT THAT STAGE EXPERIENCING THE
19 PROGRESSION OF THE DISEASE AND TYPICALLY PATIENTS WOULD LIKE
20 TO BE COMFORTABLE AND THEY WOULD LIKE TO STAY AS FUNCTIONAL
21 AS POSSIBLE AND PALLIATIVE CARE DEALS WITH THAT ASPECT OF
22 THEIR LIFE.
23 Q. HOW DOES -- DOES A PHYSICIAN CERTIFY A PATIENT AS
24 ELIGIBLE FOR PALLIATIVE?
25 A. GENERALLY THAT'S THE CASE.
2733
1 Q. AND YOU WERE ASKED A NUMBER OF QUESTIONS ABOUT THE
2 AMERICAN MEDICAL ASSOCIATION. LET ME JUST ASK YOU -- AND
3 THIS IS TAKEN FROM THE JOURNAL OF AMERICAN MEDICAL
4 ASSOCIATION, ITS PALLIATIVE OPTIONS OF LAST RESORT. AND IT
5 WAS A COMPARISON -- I DON'T KNOW WHETHER YOU'VE READ THAT
6 PARTICULAR ARTICLE. MAYBE I SHOULD SHOW IT TO YOU.
7 A. I DON'T KNOW THAT I'VE ACTUALLY -- THAT I'VE SEEN THAT
8 PARTICULAR ARTICLE.
9 Q. OKAY. I'M JUST GOING TO ASK YOU CONCERNING SOME
10 CONCEPTS THAT ARE CONTAINED IN THE ARTICLE AND ASK IF YOU
11 AGREE WITH THOSE CONCEPTS OR NOT.
12 MR. STIRBA: WELL, I'M GOING TO OBJECT. IT'S
13 BEYOND THE SCOPE AND THEN IT'S ALSO LEADING AND SUGGESTIVE.
14 THIS IS REDIRECT.
15 MR. WILSON: YOUR HONOR, HE INQUIRED RATHER FOR A
16 LONG PERIOD OF TIME RELATIVE TO PALLIATIVE CARE AND THE
17 ISSUE SURROUNDING PALLIATIVE CARE AND A DOCTOR'S ETHICAL
18 RESPONSIBILITY IN TERMS OF THE ADMINISTRATION OF PALLIATIVE
19 CARE.
20 THE COURT: ARE YOU GOING TO ASK HIM -- READ A
21 STATEMENT AND ASK HIM WHETHER HE AGREES WITH THE STATEMENT?
22 MR. WILSON: I AM.
23 THE COURT: OKAY. GO AHEAD.
24 Q. (BY MR. WILSON) WOULD YOU AGREE, DOCTOR, THAT A
25 PATIENT MUST BE FULLY INFORMED ABOUT AND CAPABLE OF
2734
1 UNDERSTANDING THEIR CONDITION AND TREATMENT ALTERNATIVES AND
2 THEIR RISKS AND BENEFITS, REQUESTS FOR HASTENED DEATH MUST
3 BE PATIENT INITIATED, FREE OF UNDUE INFLUENCE AND ENDURING,
4 WAITING PERIODS MUST BE FLEXIBLE DEPENDING ON THE NEARNESS
5 OF INEVITABLE DEATH AND SEVERITY OF IMMEDIATE SUFFERING.
6 WOULD YOU AGREE WITH THAT STATEMENT?
7 A. YES.
8 Q. WOULD YOU AGREE THAT A PATIENT MUST HAVE A CLEARLY
9 DIAGNOSED DISEASE WITH KNOWN LETHALITY. THE PROGNOSES MUST
10 BE UNDERSTOOD INCLUDING THE DEGREE OF UNCERTAINTY ABOUT
11 OUTCOMES, I.E. HOW LONG THE PATIENT MIGHT LIVE. WOULD YOU
12 AGREE OR DISAGREE WITH THAT STATEMENT?
13 A. I WOULD AGREE.
14 Q. WOULD YOU FURTHER AGREE THAT A CONSULTANT WITH EXPERTISE
15 IN PALLIATIVE CARE SHOULD REVIEW THE CASE? SPECIALISTS
16 SHOULD ALSO REVIEW ANY QUESTIONS ABOUT THE PATIENT'S
17 DIAGNOSIS OR PROGNOSIS. A PSYCHIATRIST SHOULD CONSULT IF
18 THERE'S UNCERTAINTY ABOUT TREATABLE DEPRESSION OR ABOUT THE
19 PATIENT'S MENTAL CAPACITY. WOULD YOU AGREE OR DISAGREE WITH
20 THAT STATEMENT?
21 A. I WOULD AGREE.
22 Q. AND WOULD YOU FURTHER AGREE THAT EXPLICIT PROCESSES FOR
23 DOCUMENTATION, REPORTING AND REVIEW SHOULD BE IN PLACE TO
24 ENSURE ACCOUNTABILITY?
25 A. I AGREE.
2735
1 MR. WILSON: OKAY. NO FURTHER QUESTIONS, YOUR
2 HONOR.
3 THE COURT: ANYTHING FURTHER?
4 MR. STIRBA: I DO HAVE A FEW, YOUR HONOR.
5 RECROSS-EXAMINATION
6 BY MR. STIRBA:
7 Q. IT'S TRUE ON CROSS-EXAMINATION, DOCTOR, YOU SAID THAT
8 PEAK EFFECT OF MORPHINE WOULD OCCUR WITHIN 30 TO 60 MINUTES;
9 ISN'T THAT TRUE?
10 A. YES.
11 Q. YOU DIDN'T JUST SAY 60. YOU SAID 30 TO 60?
12 A. BY 60, I THINK WHEN WE WERE DISCUSSING HERE I SAID I
13 THINK WE CHANGED IT SLIGHTLY JUST SAYING BY 60, BUT SO I
14 THINK THAT'S SAYING THE SAME THING.
15 Q. OKAY. SO WE'RE CLEAR. THE PEAK EFFECT I.M. WOULD BE --
16 WOULD BE REALIZED WITHIN 30 TO 60 MINUTES?
17 A. YES.
18 Q. IT'S ALSO TRUE, IS IT NOT, THAT DR. FRIKKE DIDN'T SAY
19 ONE THING IN HER AUTOPSY REPORT ABOUT THE VAGINAL FISTULA?
20 A. I DON'T KNOW. I CAN LOOK AT THE --
21 Q. WELL, YOU JUST TOLD THIS JURY THAT YOU READ THE REPORT
22 AND YOU INDICATED THAT SHE SAID SOMETHING ABOUT THE FISTULA.
23 WELL, THE FACT OF THE MATTER IS, SHE DIDN'T FIND IT IN THE
24 AUTOPSY; ISN'T THAT TRUE?
25 A. I THOUGHT THAT -- THAT MY RECOLLECTION WAS THAT SHE HAD,
2736
1 BUT I COULD BE MISTAKEN.
2 Q. OKAY.
3 A. I'D BE HAPPY TO TAKE A LOOK AT THAT AND REVIEW IT IF
4 NECESSARY.
5 Q. IT'S ALSO TRUE THAT THE QUESTION THAT I ASKED YOU WHICH
6 YOU WERE SEARCHING FOR IS, YOU MADE A STATEMENT THAT
7 DR. DIENHART SAID THAT ASPIRATION PNEUMONIA HAD OCCURRED AS
8 A RESULT OF SEDATION. THAT WAS THE QUESTION I ASKED YOU.
9 YOU SAID THERE WAS A NOTE INDICATING THAT AND THERE'S NO
10 SUCH NOTE, IS THERE?
11 A. THAT WAS THE NOTE THAT WE -- WELL, THE IMPLICATION IS
12 THAT HE SAID SHE IS PROBABLY -- SHE HAS PROBABLE ASPIRATION
13 AND HE WROTE AN ORDER TO DECREASE HER DURAGESIC PATCH. SO
14 IT WOULD SEEM HIS TAKE ON THAT WAS THAT THE DURAGESIC PATCH
15 WAS CAUSING EXCESSIVE SEDATION, DECREASED VENTILATION, SHE
16 OUGHT TO BE ON LESS MEDICATION.
17 Q. DOCTOR, I'M SORRY. THAT WON'T WORK EITHER BECAUSE THE
18 NOTE YOU READ WAS ON THE 7TH, THE DAY SHE DIED. AND HE
19 DIDN'T WRITE ANY ORDER DECREASING ANY MEDICATION ON THE 7TH
20 OF JANUARY, DID HE?
21 A. LET ME CHECK HERE. WELL, AT THE TIME THAT HE -- IT WAS
22 JANUARY 1ST WHEN HE WROTE TO DECREASE THE DURAGESIC PATCH.
23 AND I'D BE HAPPY TO TAKE A LOOK AT THOSE RECORDS.
24 Q. YOU DON'T HAVE TO. YOU JUST TOLD US -- YOU TOLD ME IN
25 RESPONSE TO MY QUESTION -- YOU TOLD THE JURY IN THE RESPONSE
2737
1 TO THE QUESTION THAT THERE WAS IMPLICATION FROM THE NOTE YOU
2 READ, WHICH WAS A JANUARY 7TH NOTE, THAT THE PROBABLE
3 ASPIRATION WAS AS A RESULT OF SEDATION BECAUSE HE WROTE AN
4 ORDER DECREASING THE DURAGESIC PATCH. AND I JUST POINT OUT
5 TO YOU, SIR, THAT HE DIDN'T DO ANY SUCH THING ON THE 7TH OF
6 JANUARY; ISN'T THAT TRUE?
7 A. THAT'S TRUE, BUT HE DID ON THE 1ST OF JANUARY.
8 Q. AND IT'S ALSO TRUE, SIR, THAT THERE'S A LARGE MEDICAL
9 DIFFERENCE BETWEEN ASPIRATION AND PNEUMONIA?
10 A. THERE ARE TWO DIFFERENT -- ASPIRATION CAN LEAD TO
11 PNEUMONIA, YES.
12 Q. AND DR. DIENHART'S NOTE MERELY STATES PROBABLE
13 ASPIRATION, CORRECT?
14 A. YES.
15 Q. DOESN'T SAY ANYTHING ON THE 7TH ABOUT PNEUMONIA, DOES
16 IT?
17 A. THAT'S CORRECT.
18 Q. AND IT'S TRUE, IS IT NOT, FINALLY, DOCTOR, THAT YOU ARE
19 AWARE THAT THERE ARE NOW GUIDELINES FOR HOSPICE CARE
20 PROMULGATED BY THE FEDERAL GOVERNMENT IN TERMS OF MEDICARE
21 PAYMENTS?
22 A. I'M AWARE THAT THERE ARE SUCH THINGS, YES.
23 Q. AND HOSPICE CARE CERTAINLY IS PART OF THIS PALLIATIVE
24 CARE OR END-OF-LIFE CARE?
25 A. YES.
2738
1 Q. AND IT'S TRUE, IS IT NOT, THAT RIGHT NOW MEDICARE WILL
2 PAY BASICALLY BENEFITS FOR HOSPICE CARE, PALLIATIVE CARE OR
3 END-OF-LIFE CARE FOR WHAT ESSENTIALLY IS A SIX MONTH PERIOD,
4 CORRECT?
5 A. I DON'T KNOW THE EXACT REGULATIONS.
6 Q. AND IT'S TRUE, IS IT NOT, THAT THEY HAVE NOT JUST
7 ALLOWED FOR PAYMENTS AND BENEFITS FOR CANCER PATIENTS, BUT
8 THEY ALSO ALLOW BENEFITS FOR PATIENTS WHO ARE SUFFERING
9 END-STAGE DEMENTIA, TRUE?
10 A. AGAIN, I'M NOT -- I'M NOT FAMILIAR WITH THE EXACT
11 REGULATIONS.
12 Q. IT'S TRUE, IS IT NOT, THAT THEY PROVIDE HOSPICE BENEFITS
13 FOR PATIENTS WHO ARE SUFFERING END STAGE AIDS, TRUE?
14 A. YES.
15 Q. AND IT'S TRUE, IS IT NOT, THAT THEY ALSO PROVIDE
16 BENEFITS FOR FOLKS WHO ARE AT THE END STAGE IN
17 CARDIOVASCULAR DISEASE, TRUE?
18 A. I WOULD NOT -- AGAIN, I DON'T KNOW FOR SURE, BUT IT
19 WOULD MAKE SENSE.
20 Q. AND IT'S TRUE, IS IT NOT, THAT THEY ALSO COVER
21 PARKINSONS DISEASE AND ITS END STAGE, CORRECT?
22 A. AGAIN, I DON'T KNOW OF THE EXACT REGULATIONS AND EXACTLY
23 WHAT THEY DO AND THEY DON'T COVER, SO I REALLY CAN'T SPEAK
24 TO THAT.
25 Q. THE POINT BEING, DOCTOR, IT'S TRUE, IS IT NOT, THAT
2739
1 END-OF-LIFE CARE IS NOT MERELY LIMITED TO PEOPLE WHO ARE
2 SUFFERING THE RAVAGES OF CANCER, BUT IT ALSO COVERS A WHOLE
3 HOST OF OTHER DISEASE PROCESSES WHICH ULTIMATELY WILL LEAD
4 TO THE DEMISE OF THE PATIENT; ISN'T THAT TRUE?
5 A. THAT'S TRUE.
6 MR. STIRBA: THAT'S ALL I HAVE, YOUR HONOR.
7 THE COURT: ANYTHING FURTHER, MR. WILSON?
8 MR. WILSON: NOTHING FURTHER.
9 THE COURT: MAY THIS WITNESS BE EXCUSED?
10 MR. WILSON: HE MAY.