Charles Fehlauer, MD
18 CHARLES FEHLAUER,
19 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
20 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
21 DIRECT EXAMINATION
22 BY MS. BARLOW:
23 Q. WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT FOR THE
24 RECORD?
25 A. IT'S CHARLES STEVEN FEHLAUER. LAST NAME IS
2183
1 F-E-H-L-A-U-E-R.
2 Q. AND IS STEVEN WITH A "V"?
3 A. IT IS.
4 Q. AND WHAT IS YOUR OCCUPATION?
5 A. I'M A PHYSICIAN.
6 Q. HOW LONG HAVE YOU BEEN A PHYSICIAN?
7 A. I WAS LICENSED IN 1986. THAT WOULD BE 14 YEARS.
8 Q. WHAT EDUCATION DID YOU RECEIVE FOR YOUR OCCUPATION?
9 A. I WENT TO THE UNIVERSITY OF UTAH FOR MY MEDICAL SCHOOL
10 TRAINING. I COMPLETED A THREE-YEAR RESIDENCY IN INTERNAL
11 MEDICINE AT THE UNIVERSITY OF UTAH AND A TWO-YEAR FELLOWSHIP
12 IN GERIATRIC MEDICINE AT THE UNIVERSITY OF UTAH.
13 Q. WHAT IS GERIATRIC MEDICINE?
14 A. GERIATRIC MEDICINE IS THE TREATMENT OF ADULTS WHO ARE
15 ELDERLY, AND THERE'S NO DEFINITE DEFINITION OF A PERSON
16 WHO'S ELDERLY, BUT GENERALLY SPEAKING OVER THE AGE OF 70.
17 Q. SO THOSE OF US WHO ARE 50 ARE NOT SENIOR CITIZENS YET?
18 A. NO, NOT YET.
19 Q. HAVE YOU RECEIVED ANY OTHER TRAINING OTHER THAN THE
20 EDUCATIONAL BACKGROUND THAT YOU'VE JUST TESTIFIED TO IN
21 YOUR -- IN YOUR FIELD?
22 A. WELL, I HAVE HAD NUMEROUS CONTINUING MEDICAL EDUCATION
23 EVENTS ON AN ANNUAL OR MORE THAN ANNUAL BASIS. I HAVE HAD
24 EXTENSIVE EXPERIENCE IN THE RESEARCH INTO PEOPLE WITH
25 GERIATRIC DISEASES, DEMENTIA AND DELIRIUM, WHILE I WAS A
2184
1 RESEARCH INVESTIGATOR AT THE SALT LAKE V.A. HOSPITAL'S
2 GERIATRIC RESEARCH, EDUCATION AND CLINICAL CENTER.
3 Q. DO YOU HAVE ANY PARTICULAR CERTIFICATIONS IN YOUR
4 MEDICAL FIELD?
5 A. YEAH. I'M CERTIFIED BY THE AMERICAN BOARD OF INTERNAL
6 MEDICINE BOTH IN INTERNAL MEDICINE AND IN GERIATRICS.
7 Q. WHAT'S INTERNAL MEDICINE?
8 A. INTERNAL MEDICINE IS THE MANAGEMENT OF DISEASES OF
9 ADULTS.
10 Q. DO YOU HAVE ANY OTHER CREDENTIALS OTHER THAN THESE
11 CERTIFICATIONS?
12 A. I HOLD NUMEROUS POSITIONS AS MEDICAL DIRECTOR FOR
13 NURSING FACILITIES, AN INPATIENT PSYCHIATRIC HOSPITAL, A
14 SENIOR MEDICAL CENTER. I HAVE BEEN AN ADVISORY MEMBER OF
15 THE UTAH ALZHEIMER'S ASSOCIATION FOR MORE THAN 10 YEARS.
16 I'M A MEMBER OF PROFESSIONAL SOCIETIES RELATIVE TO MY
17 MEDICAL DIRECTORSHIPS.
18 Q. HAVE YOU EVER PUBLISHED IN THE FIELD OF GERIATRICS?
19 A. YEAH, I HAVE NUMEROUS ABSTRACTS, JOURNAL ARTICLES AND
20 BOOK CHAPTERS RELATIVE TO THE FIELD OF GERIATRICS, QUALITY
21 OF CARE AND DISEASES OF THE ELDERLY.
22 Q. ARE YOU FAMILIAR WITH THE TERM PALLIATIVE CARE?
23 A. I AM.
24 Q. AND WHAT IS THAT?
25 A. PALLIATIVE CARE IS THE CARE OF SOMEONE WHO HAS A DISEASE
2185
1 TO WHICH THERE IS NO CURE AND/OR THE PRESENCE OF AN ILLNESS
2 WHICH IS FELT TO BE TERMINAL.
3 AND THE PURPOSE OF PALLIATIVE CARE IS TO PROVIDE THAT
4 PATIENT WITH THE HIGHEST LEVEL OF FUNCTION, HIGHEST LEVEL OF
5 RELIEF OF SUFFERING OR PAIN SO THAT THEY CAN LIVE A QUALITY
6 AND -- AND AS LONG A LIFE AS THEY -- AS THEIR TIME ALLOWS.
7 Q. DO YOU KEEP UP WITH LITERATURE IN THE FIELD OF
8 GERIATRICS?
9 A. YES. I'M ACTIVELY INVOLVED IN REVIEWING LITERATURE AND
10 REVIEWING MATERIALS RELATIVE TO MY PRACTICE.
11 Q. DO YOU HAVE ANY TEACHING RESPONSIBILITIES?
12 A. I'M CURRENTLY A CLINICAL ASSISTANT PROFESSOR IN THE
13 COLLEGE OF NURSING. IT'S A RESEARCH APPOINTMENT AND I HAVE
14 NURSING STUDENTS OCCASIONALLY. IN MY POSITION AT THE SALT
15 LAKE REGIONAL MEDICAL CENTER WE HAVE HOUSE STAFF TRAINING
16 PROGRAM IN FAMILY PRACTICE AND ON A DAILY BASIS WE TEACH
17 CLINICALLY WITH THE FAMILY MEDICINE RESIDENTS THERE. I'M
18 RESPONSIBLE FOR EDUCATING STAFF IN MY NURSING FACILITIES.
19 I'M RESPONSIBLE FOR OVERSEEING THE CARE OF RESIDENTS IN MY
20 NURSING FACILITIES, AND EDUCATING PHYSICIANS RELATIVE TO THE
21 QUALITY OF CARE THAT'S BEING DELIVERED. I'M RESPONSIBLE FOR
22 EDUCATING NURSING ASSISTANTS AND -- AND ADMINISTRATORS IN
23 THE QUALITY OF CARE AND THE CARE DELIVERED IN THE NURSING
24 FACILITIES, THE HOSPITAL, AND MY MEDICAL CLINIC.
25 I'VE ALSO CONTINUED TO LECTURE BOTH TO THE COMMUNITY
2186
1 AND TO MEDICAL PHYSICIANS, IN PARTICULAR IN THE LAST FIVE
2 YEARS RELATIVE TO DEMENTIA AND DELIRIUM. AND AS RECENTLY AS
3 JANUARY OF THIS YEAR I WAS A SPEAKER AT THE UNIVERSITY OF
4 UTAH'S INTERNAL MEDICINE CONFERENCE THAT THEY PROVIDE AS AN
5 UPDATE TO INTERNAL MEDICINE.
6 Q. WHAT HAS BEEN YOUR EXPERIENCE IN THE CARE OF DEMENTED
7 PATIENTS?
8 A. WELL, I'VE HAD EXTENSIVE EXPERIENCE. I ENTERED MY
9 FELLOWSHIP IN 1989 AND JUST SHORTLY THEREAFTER WAS THE
10 FELLOW IN CLINIC AT THE UNIVERSITY OF UTAH'S COGNITIVE
11 DISORDERS CLINIC.
12 Q. WHAT'S A FELLOW?
13 A. A FELLOW IS SOMEONE WHO HAS COMPLETED A RESIDENCY OR THE
14 FIRST STATE OF TRAINING AFTER MEDICAL SCHOOL. AND THEN A
15 FELLOWSHIP IS ADDITIONAL TRAINING AFTER YOU'VE COMPLETED
16 YOUR SPECIALTY TRAINING. SO I'M A SPECIALIST IN INTERNAL
17 MEDICINE AND I'M A SUBSPECIALIST IN GERIATRICS. AND AS A
18 FELLOW YOU GET THAT TRAINING AS A SUBSPECIALIST.
19 SO IN 19 -- IN ANSWER TO YOUR QUESTION, IN 1989 I BEGAN
20 SERVING AS THE FELLOW OR THE TRAINEE IN THE COGNITIVE
21 DISORDERS OR MEMORY DISORDERS CLINIC AT THE UNIVERSITY OF
22 UTAH AND CONTINUED THAT UNTIL 1991. AND THEN FROM '91 TO
23 '95 I WAS AN ATTENDING PHYSICIAN; THAT IS, SOMEONE
24 PRINCIPALLY RESPONSIBLE FOR THE CARE OF THE PATIENTS IN THAT
25 CLINIC.
2187
1 FOR A PERIOD OF THREE YEARS I WAS A PRINCIPAL ATTENDING
2 PHYSICIAN AT GARDEN TERRACE, WHICH IS A NURSING FACILITY
3 SPECIALIZING IN THE CARE OF ALZHEIMER'S PATIENTS. AND FOR
4 THE LAST FIVE YEARS I'VE BEEN THE PRINCIPAL ATTENDING
5 PHYSICIAN AND MEDICAL DIRECTOR OF NURSING FACILITIES IN THE
6 SALT LAKE COUNTY WHERE I'VE CARED FOR OVER 3,000 INDIVIDUALS
7 IN THE LAST FIVE YEARS AND 1,000 OF WHOM HAVE SUFFERED FROM
8 DEMENTIA.
9 Q. IN THE COURSE OF THIS TRIAL WE'VE HEARD THE PHRASE
10 "CLINICAL" IN RELATIONSHIP TO THE PRACTICE OF MEDICINE. CAN
11 YOU EXPLAIN WHAT THAT -- THAT PHRASE -- OR THAT TERM MEANS?
12 A. WELL, YOU COULD SAY IT'S DERIVED FROM IN THE CLINIC. IT
13 MEANS THAT YOU ARE IN THE CLINIC OR YOU ARE PROVIDING SOME
14 SORT OF CARE THAT RELATES TO DIRECTLY CONTACTING A PATIENT.
15 WOULD BE OPPOSED TO BEING A -- A RESEARCH POSITION WHERE
16 THE -- THE INTERACTION YOU HAVE WITH A PATIENT IS -- IS
17 MEANT TO BE -- TO DISCOVER SOMETHING OR TO TEST SOMETHING.
18 A CLINICAL PERSON IS A PERSON WHO -- WHO PROVIDES DIRECT
19 CARE AND ASSESSMENT TO PATIENTS.
20 Q. AND HAVE YOU DONE BOTH OF THOSE, BOTH CLINICAL AND
21 RESEARCH?
22 A. YEAH. MY POSITION AT THE SALT LAKE V.A. WAS AS A
23 RESEARCH INVESTIGATOR. IT'S AN APPOINTMENT THAT WAS
24 INCLUDED IN THE CENTER GRANT THAT THE V.A. RECEIVED AFTER MY
25 APPLICATION WITH THE OTHER DOCTORS WAS ACCEPTED IN 1991.
2188
1 AND IN THAT POSITION MY PRINCIPLE STUDY WAS INVOLVED IN
2 USING NURSING RECORDS TO DETECT PATIENTS WHO ARE CONFUSED
3 AND CONFUSED IN A WAY THAT INDICATED THAT THEY HAD A
4 SYNDROME CALLED DELIRIUM. AND THAT RESEARCH CONTINUED FOR A
5 PERIOD OF FOUR YEARS UNTIL I LEFT THE V.A. IN 1995.
6 Q. HAVE YOU HAD THE OCCASION TO REVIEW ANY RECORDS
7 REGARDING THE FIVE VICTIMS IN THIS CASE?
8 A. YES, I HAVE.
9 Q. AND WHAT REVIEW HAVE YOU DONE?
10 A. WITH RESPECT TO ALL FIVE OF THE CASES, I HAVE BEEN
11 SUPPLIED WITH INFORMATION FROM HOSPITALIZATIONS AND NURSING
12 FACILITY RECORDS, DOCTOR'S OFFICE NOTES, PRIOR TO THEIR
13 ADMISSION TO DAVIS HOSPITAL, AND I'VE BEEN PROVIDED WITH
14 RECORDS FROM DAVIS HOSPITAL ITSELF.
15 Q. DO YOU RECALL LOOKING AT RECORDS INVOLVING ELLEN
16 ANDERSON?
17 A. YES, I DO.
18 Q. ARE THERE ANY FOLDERS UP THERE?
19 MS. BARLOW: IF I MAY APPROACH, YOUR HONOR?
20 THE COURT: YES.
21 Q. (BY MS. BARLOW) DR. FEHLAUER, THIS IS A BINDER THAT'S
22 STATE'S EXHIBIT NUMBER 6. WOULD YOU LOOK THROUGH THAT
23 QUICKLY AND SEE IF YOU RECOGNIZE WHAT THAT IS?
24 A. BASED ON EACH OF THE TABS, THIS APPEARS TO BE THE RECORD
25 THAT I WAS SUPPLIED RELATIVE TO ELLEN ANDERSON'S STAY AT
2189
1 DAVIS HOSPITAL.
2 Q. IN FORMULATING AN OPINION, A MEDICAL OPINION, WHAT DO
3 YOU NEED TO KNOW TO FORMULATE A MEDICAL OPINION SAY AS TO
4 INJURY OR -- OR CAUSE OF DEATH OR SOMETHING OF THAT SORT?
5 A. IF I'M FORMULATING MY OWN MEDICAL OPINION, IF I'M
6 ATTEMPTING TO, FROM EXAMINATION OF THE PATIENT OR THEIR
7 RECORDS, TO FORMULATE AN OPINION AS TO WHAT'S WRONG OR
8 WHAT'S HAPPENED OR WHAT WAS THE CAUSE OF DEATH, I NEED TO
9 HAVE INFORMATION RELATIVE TO THE PATIENT'S HISTORY: WHAT
10 HAPPENED TO THEM OR WHAT ARE THEY COMPLAINING OF OR WHAT
11 HAVE OTHERS' OBSERVATIONS OF THEM BEEN? I NEED TO EXAMINE
12 THE PATIENT.
13 IT'S CRITICALLY IMPORTANT TO BE ABLE TO UNDERSTAND
14 WHAT'S WRONG TO ACTUALLY LAY HANDS ON A PATIENT, TO USE THE
15 SKILLS THAT I'VE BEEN TRAINED WITH TO DISCERN WHAT HAS
16 OCCURRED, WHAT ILLNESS OR INJURY IS PRESENT. AND THEN IN
17 MAKING AN ASSESSMENT AS TO WHAT'S WRONG, I OBVIOUSLY WOULD
18 USE ANCILLARY INFORMATION FROM LABORATORIES AND X-RAYS AND
19 OTHER STUDIES THAT MAY HAVE BEEN DONE TO FORM THE OPINION AS
20 TO WHAT'S WRONG AND THEN BE ABLE TO FORMULATE A PLAN AS TO
21 WHAT'S RIGHT.
22 IN THE ABSENCE OF BEING ABLE TO FORMULATE AN ACCURATE
23 ASSESSMENT, YOU CAN'T REALLY FORMULATE A PLAN AS TO WHAT'S
24 THE RIGHT THING TO DO FOR A RESIDENT.
25 Q. WHAT TYPES OF DOCUMENTS WOULD YOU USE OR REVIEW TO -- TO
2190
1 MAKE AN ASSESSMENT?
2 A. I GET ASKED THAT ALL THE TIME BY PEOPLE WHO ACCEPT
3 PATIENTS TO THE FACILITIES WHERE I WORK BECAUSE I'M
4 CONTINUOUSLY SAYING TO THEM, I NEED MORE INFORMATION. THE
5 ANSWER IS, I'LL USE INFORMATION THAT'S BEEN PROVIDED BY THE
6 PATIENT THEMSELVES IN HISTORY, BY THEIR FAMILY MEMBERS IN
7 HISTORY, BY OBSERVATIONS OF PROFESSIONALS. AND, OF COURSE,
8 I'LL USE INFORMATION FROM OUTSIDE PHYSICIANS OR HOSPITAL
9 RECORDS OR I'LL USE INFORMATION FROM AN OUTSIDE OR
10 INDEPENDENT LABORATORY, WHATEVER INFORMATION IS AVAILABLE
11 THAT I CAN MAKE USE OF TO ASSIST THE PATIENT MOST
12 APPROPRIATELY.
13 Q. NOW, WE'VE BEEN TALKING IN THE ABSTRACT THERE. LET'S
14 SHIFT SLIGHTLY TO THE CIRCUMSTANCE YOU HAVE WITH THESE FIVE
15 PEOPLE. WHAT -- WHAT DOCUMENTS DID YOU NEED TO REVIEW TO
16 FORMULATE ANY OPINION ABOUT WHAT HAPPENED IN THE CARE OF
17 THESE FIVE PEOPLE?
18 A. BECAUSE THE QUESTION PUT TO ME WAS WHAT HAPPENED, I
19 ASKED FOR INFORMATION IN ADDITION TO THE HOSPITAL RECORDS I
20 WAS INITIALLY PROVIDED WITH, BUT INFORMATION FROM PRIOR
21 HISTORY. AND IN PARTICULAR I WAS INTERESTED IN THE SIX
22 MONTHS OF MATERIAL THAT LED UP TO THEIR ADMISSION TO THE
23 DAVIS HOSPITAL. THE INFORMATION THAT WAS AVAILABLE FROM
24 THOSE SIX MONTHS THAT WAS SUPPLIED TO ME WAS NURSING
25 FACILITY AND HOSPITAL RECORDS AND A FEW DOCTORS' OFFICE
2191
1 NOTES.
2 Q. DID YOU EVER TALK TO ANY OF THE PATIENTS' FAMILIES?
3 A. NO.
4 Q. DID YOU HAVE IN THE RECORDS ANY INDICATION OF PRIOR
5 HISTORY THAT YOU WOULD HAVE NORMALLY -- IF THESE PATIENTS
6 WERE STILL ALIVE, THAT YOU WOULD NORMALLY HAVE GOTTEN FROM
7 EITHER THE PATIENT OR FROM THE FAMILY?
8 A. I'M NOT SURE I UNDERSTAND YOUR QUESTION.
9 Q. IS THERE ANYTHING IN THE RECORD THAT GAVE YOU HISTORY
10 THAT WOULD HAVE COME NORMALLY FROM A PATIENT OR THEIR
11 FAMILY?
12 A. YES.
13 Q. PARTICULARLY MAYBE I'LL HAVE YOU LOOK AT -- UNDER
14 NURSES' NOTES, FOR EXAMPLE, WITH ELLEN ANDERSON, A SERIES OF
15 PAGES THAT START WITH MED-00178. DID YOU REVIEW THAT
16 DOCUMENT?
17 A. YES.
18 Q. ARE YOU COMPARING TWO DOCUMENTS UP THERE?
19 A. I HAVE THE COPIES OF THE MATERIALS THAT I WAS GIVEN FROM
20 THE DAVIS HOSPITAL AND FROM THE NURSING FACILITIES BECAUSE
21 I'VE MADE NOTES ON THESE DOCUMENTS AND HIGHLIGHTED THEM TO
22 ASSIST ME IN PROVIDING INFORMATION. I WOULD LIKE TO MAKE
23 SURE THAT WHEN YOU ASK A QUESTION OF HOW I REVIEWED IT THAT
24 I CAN USE MY OWN NOTES AND -- AND STATE AFFIRMATIVELY THAT
25 THIS WAS A DOCUMENT I REVIEWED.
2192
1 Q. AND YOU'VE COMPARED THAT TO WHAT IS IN -- I GUESS IT'S
2 STATE'S EXHIBIT 6?
3 A. THE FIRST TWO PAGES ARE SIMILAR. I CAN GO THROUGH ALL
4 THE PAGES.
5 Q. NO. THAT'S FINE. I -- I JUST WANT TO MAKE SURE THAT
6 THAT IS ONE THING THAT HAD BEEN PROVIDED FOR YOU.
7 THE DOCUMENTS THAT YOU REVIEWED IN THIS CASE INVOLVING
8 THESE FIVE PEOPLE, ARE THEY THE TYPES USUALLY RELIED ON BY
9 EXPERTS IN THE FIELD?
10 A. YES.
11 Q. TO RENDER AN OPINION ABOUT WHAT HAPPENED?
12 A. YES.
13 Q. NOW, THE GENERAL PRINCIPLES THAT YOU WILL BE TESTIFYING
14 ABOUT TODAY, ARE THEY -- ARE THEY GENERALLY ACCEPTED IN THE
15 RELEVANT MEDICAL COMMUNITY?
16 A. YES.
17 Q. AND AS WE TALK SPECIFICALLY ABOUT THOSE WE'LL -- WE'LL
18 GET INTO WHAT THEY ARE. BASED ON THE -- ON YOUR EXPERTISE
19 AND THE REVIEW OF THE RECORDS, DID YOU FORM AN OPINION
20 REGARDING THE ADMISSION DIAGNOSIS -- THE ADMISSION AND
21 DIAGNOSIS OF SAY ELLEN ANDERSON?
22 A. MY OPINION RELATIVE TO THE STATE OF ELLEN ANDERSON
23 VARIES AS TO THE TIME THAT WE'RE SPEAKING OF. IF YOU'RE
24 SPEAKING OF THE DATE THAT SHE WAS ADMITTED, I'LL GIVE A --
25 CAN GIVE YOU AN OPINION AS TO WHAT I THINK WAS WRONG AT THAT
2193
1 POINT, IF YOU GIVE ME A DATE.
2 Q. OKAY. I BELIEVE THAT DATE WAS THE 29TH OF -- OF
3 DECEMBER.
4 A. MY REVIEW OF THE RECORD ON 29 DECEMBER, INCLUSIVE OF
5 MATERIALS BEFORE THAT, IF I'M ALLOWED --
6 Q. YES. WHAT MATERIALS -- WELL, YOUR OPINION AS OF THAT
7 TIME BASED ON ALL THE RECORDS THAT YOU REVIEWED.
8 A. MY OPINION, BASED ON ALL THE RECORDS REVIEWED, WAS THAT
9 ELLEN ANDERSON SUFFERED FROM SENILE DEMENTIA, AND THAT AT
10 THE TIME THAT SHE WAS ADMITTED TO DAVIS HOSPITAL ON THE 29TH
11 THAT SHE CLEARLY WAS DELIRIOUS FROM MULTIPLE POTENTIAL
12 CAUSES. THAT IN ADDITION TO THOSE TWO PRINCIPLE DIAGNOSES
13 AS THE REASON FOR HER BEING ADMITTED TO THAT FACILITY, THAT
14 SHE HAD A HISTORY OF HAVING FALLEN AND HAD A FRACTURE AND A
15 REPAIR OF A FEMUR FRACTURE -- OR WHAT PEOPLE CALL A HIP
16 FRACTURE. THAT SHE HAD ANXIETY DISORDER OF SOME NUMBER OF
17 YEARS DURATION. THAT SHE HAD OSTEOPOROSIS -- OR LOSS OF
18 BONE MINERAL, THINNING OF THE BONES. THAT SHE HAD
19 EXPERIENCED WEIGHT LOSS, AND THAT SHE HAD HAD A COMPRESSION
20 FRACTURES OF HER SPINE SOMETIME IN THE PAST. Leaves out CAD, CHF, and pneumonia.
21 Q. AND BASED ON YOUR REVIEW OF THE RECORDS, WERE ANY OF
22 THOSE DIAGNOSES THAT YOU MADE BASED ON THOSE RECORDS
23 LIFE-THREATENING AT THAT POINT?
24 A. NO.
25 MS. BARLOW: YOUR HONOR, IF I MAY HAVE THIS CHART
2194
1 MARKED AS AN EXHIBIT, PLEASE. I BELIEVE IT IS EXHIBIT
2 NUMBER 29.
3 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
4 MR. STIRBA: YOUR HONOR, I MAY NOT HAVE ANY PROBLEM
5 WITH THE EXHIBIT, BUT BEFORE IT'S DISPLAYED, COULD WE HAVE A
6 LITTLE FOUNDATION ABOUT WHAT IT IS AND WHAT IT PURPORTS TO
7 REPRESENT?
8 THE COURT: YES. WHY DON'T YOU GO AHEAD AND LAY A
9 FOUNDATION.
10 MS. BARLOW: I'D BE HAPPY TO DO THAT.
11 Q. (BY MS. BARLOW) DR. FEHLAUER -- NO. HOLD IT OVER JUST
12 FOR YOURSELF FIRST. HAVE YOU SEEN THIS CHART BEFORE?
13 A. YES.
14 Q. AND WHERE HAVE YOU SEEN IT?
15 A. THIS IS A CHART I PREPARED AND HAS BEEN PLACED ON THIS
16 BOARD DURING MY PREPARATION FOR TESTIMONY.
17 Q. AND WHERE DID YOU GET THE INFORMATION FROM THIS CHART --
18 THAT YOU PUT ON THIS CHART, EXCUSE ME?
19 A. THE INFORMATION FROM THIS CHART IS BASED ON LECTURES
20 THAT I GIVE TO COMMUNITY GROUPS, PHYSICIANS, NURSING STAFFS,
21 STUDENTS, RELATIVE TO UNDERSTANDING THE DIFFERENCE BETWEEN
22 DEMENTIA, A SYNDROME OF LONG DURATION ASSOCIATED WITH MEMORY
23 LOSS AND FUNCTIONAL LOSS; AND DELIRIUM, A SYNDROME OFTEN
24 OCCURRING IN DEMENTIA, BUT NOT EXCLUSIVELY, WHERE THE
25 PATIENT IS SUDDENLY WORSE, EXHIBITING SUDDEN CHANGES DURING
2195
1 A DAILY OR OTHERWISE TIME FRAME THAT'S REVERSIBLE AS OPPOSED
2 TO BEING PROGRESSIVE AND IRREVERSIBLE.
3 Q. DOES THIS ACCURATELY REFLECT THEN A SUMMARY OF WHAT YOU
4 ARE GOING TO TESTIFY TODAY?
5 A. YES.
6 MS. BARLOW: YOUR HONOR, I WOULD MOVE FOR ADMISSION
7 OF STATE'S EXHIBIT 29.
8 MR. STIRBA: YEAH. I HAVE AN OBJECTION AS TO
9 RELEVANCY, YOUR HONOR.
10 THE COURT: OKAY. IS THERE SOMETHING YOU CAN GO ON
11 AND THEN WE CAN -- OR IS THIS AT A POINT WHERE WE NEED TO --
12 MS. BARLOW: THIS IS PRETTY MUCH -- PRETTY BASIC,
13 YOUR HONOR.
14 THE COURT: OKAY. LADIES AND GENTLEMEN, WE WERE
15 HERE A HALF HOUR BEFORE WE TOOK THIS FIRST BREAK. AND IF
16 YOU WANT TO GO OUTSIDE TO TAKE A FIVE-MINUTE BREAK, I DON'T
17 THINK IT'S GOING TO BE MUCH MORE THAN FIVE MINUTES. SO THAT
18 JUST BE IN A PLACE WHERE WHEN THE BAILIFF NOTIFIES YOU TO
19 COME BACK IN, THAT YOU WILL COME IN.
20 DURING THIS BREAK REMEMBER IT'S YOUR DUTY NOT TO
21 CONVERSE AMONG YOURSELVES REGARDING THE CASE OR TO CONVERSE
22 WITH ANYONE ELSE ABOUT THE CASE OR TO ALLOW ANYONE TO
23 ADDRESS YOU REGARDING THE SUBJECT OF THIS TRIAL. AND -- AND
24 IT'S ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
25 THE CASE IS FINALLY SUBMITTED.
2196
1 SO IF YOU'LL JUST -- WE'LL BE IN RECESS UNTIL YOU'RE
2 NOTIFIED.
3 (WHEREUPON, THE JURY'S EXCUSED.)
4 THE COURT: YOU MAY BE SEATED. THE RECORD WILL
5 REFLECT THAT THE JURY HAS LEFT THE COURTROOM.
6 OKAY. WHAT IS THE -- WHERE ARE WE GOING WITH THIS AND
7 THEN WHAT IS THE OBJECTION?
8 MS. BARLOW: YOUR HONOR, I WAS GOING TO HAVE HIM --
9 HE'S GOING TO TESTIFY THAT WITH EACH ONE OF THESE PEOPLE
10 THERE WAS DEMENTIA, BUT OVERLYING THAT WAS DELIRIUM, BASED
11 ON HIS REVIEW OF THE RECORD.
12 HE WILL TESTIFY THAT DELIRIUM IS TREATABLE. HE WILL
13 TESTIFY THAT IT WAS NOT TREATED, THAT IT -- THAT IT FACTORED
14 INTO THE WHOLE DECLINE ALONG WITH THE MEDICATIONS.
15 ESPECIALLY -- HE'S GOING TO TESTIFY THAT DELIRIUM IS OFTEN
16 CAUSED BY -- OH, I CAN'T THINK OF THE WORD I WANT -- BY THE
17 MEDICINES THEMSELVES THAT -- THAT ARE USED FOR DEMENTIA AND
18 SPECIFICALLY THE MEDICINE -- THE MEDICATIONS THAT WERE USED
19 IN THIS CASE. AND THAT -- THAT THOSE MEDICATIONS CAN
20 CAUSE -- CAN CAUSE DELIRIUM.
21 AND THE WAY YOU TREAT THAT IS WHEN YOU SEE THE
22 DELIRIUM, YOU TAKE THEM OFF THE MEDICINES -- THE MEDICATIONS
23 TO SEE IF THE MEDICATIONS ARE CAUSING THE DELIRIUM. BUT
24 WHAT HAPPENED IN THIS CASE IS INSTEAD OF DIAGNOSING THE
25 DELIRIUM AND WITHDRAWING THE MEDICATIONS THAT CAN CAUSE THE
2197
1 DELIRIUM, THE MEDICATIONS WERE CONTINUED, SOMETIMES
2 INCREASED, AND -- AND THE SEDATING EFFECT OF THESE
3 MEDICATIONS LED TO THE DECLINE OF THESE PEOPLE UNTIL
4 EVENTUALLY THEY BECAME UNRESPONSIVE, COMATOSE. FAMILY
5 MEMBERS WERE TOLD THAT THEY WERE NEAR DEATH AND THEN
6 MORPHINE WAS ADMINISTERED.
7 AND THAT'S WHY THIS IS RELEVANT BECAUSE THE DELIRIUM
8 VERSUS THE DEMENTIA -- I MEAN, I DON'T KNOW THAT THERE'S ANY
9 QUESTION THAT THESE PEOPLE WERE DEMENTED, BUT DEMENTIA IS
10 NOT -- WHILE IT IS A TERMINAL ILLNESS -- IS NOT USUALLY A
11 SOON-TO-BE TERMINAL ILLNESS. It's always terminal.
12 AND SO THAT'S WHY THE DELIRIUM TESTIMONY WILL BE
13 SIGNIFICANT BECAUSE HE WILL TESTIFY THAT THE DELIRIUM IS
14 WHAT BROUGHT THEM TO THIS UNIT. THE DELIRIUM WAS NOT
15 TREATED IN AN EFFECTIVE -- IN AN APPROPRIATE MANNER AS THE
16 COURT -- THE TERM THE COURT USED -- WAS NOT TREATED IN AN
17 APPROPRIATE MANNER, AND SO THE CONDITION OF THESE PEOPLE
18 WORSENED AND WORSENED UNTIL FINALLY MORPHINE WAS
19 ADMINISTERED.
20 THE COURT: OKAY. ANY OBJECTION?
21 MR. STIRBA: YEAH. THIS IS WHERE I THINK WE GET
22 INTO THE TOTALITY PROBLEM. HE'S NOT TESTIFYING THAT
23 DELIRIUM CAUSED THE DEATH. DELIRIUM -- I MEAN, THE EVIDENCE
24 HAS BEEN OVERWHELMING IN THIS CASE ABOUT THE STATUS OF THESE
25 PATIENTS BY THEIR OWN TREATING PHYSICIAN BEFORE THEY WENT TO
2198
1 THE HOSPITAL. TO NOW ALLOW HIM TO TESTIFY, OH, BY THE WAY,
2 NOT ONLY WERE THEY DEMENTED, BUT I'M ALSO SAYING BASED UPON
3 A REVIEW OF THE RECORDS THEY WERE DELIRIOUS AS WELL, AND
4 THEN GO INTO ALL OF THAT, IT SEEMS TO ME THAT WE'RE INTO THE
5 AREA OF DEALING WITH WHETHER OR NOT THIS DOCTOR ENGAGED IN
6 SOME KIND OF CIVIL WRONGDOING AND NOT CRIMINAL WRONGDOING.
7 HE'S ALREADY TESTIFIED THAT HE THOUGHT THEY WERE
8 DELIRIOUS AS WELL AS DEMENTED ON ADMISSION. HE'S TESTIFIED
9 TO THAT. BUT HE CAN'T SAY, BECAUSE IT'S NOT -- IT'S NOT
10 LOGICAL TO SAY THIS -- THAT DELIRIUM CAUSED THE DEATH.
11 IF HE WANTS TO SAY THAT THE MEDICATIONS THAT WERE
12 PRESCRIBED THAT I SAW IN THE HOSPITAL WERE INAPPROPRIATE, I
13 MEAN, THEY WERE NOT THE CORRECT ONES, AND THE REASON WHY
14 THEY WEREN'T THE CORRECT ONES IS BECAUSE THEY WERE DELIRIOUS
15 AND NOT DEMENTED, I GUESS CONSISTENT WITH WHAT HAS BEEN
16 REPRESENTED TO THE COURT ABOUT THE THEORY AND WHAT I THINK
17 THE COURT SAID THAT CAN BE OFFERED, I THINK THAT'S PROPER.
18 BUT TO GET DOWN THIS PATH OF DELIRIUM VERSUS
19 DEMENTED -- WHAT DELIRIUM MEANS VERSUS DEMENTED, I MEAN, I
20 THINK IT'S IRRELEVANT TO THE ISSUES BEFORE THE COURT AND --
21 AND IT'S NOT A SITUATION WHERE HE'S GOING TO TESTIFY THAT
22 DELIRIUM CAUSED THE DEATH.
23 AND THERE ARE A NUMBER OF CRITICISMS THAT THIS DOCTOR
24 HAS OF DR. WEITZEL'S CARE, SOME OF WHICH MAY BE RELEVANT IN
25 THE MEDICATION WORLD, BUT SOME OF THEM ARE NOT RELEVANT FOR
2199
1 PURPOSES OF PRECISELY WHAT THIS CASE IS ALL ABOUT BECAUSE
2 THEN WE'RE INTO THE TOTALITY ISSUE, AND I'VE ADDRESSED THOSE
3 IN THE MEMO. THAT'S WHY I OBJECTED.
4 THE COURT: OKAY. MISS BARLOW?
5 MS. BARLOW: YES. THE COURT ORDERED THIS MORNING
6 THAT THE EXPERTS COULD GIVE AN OPINION AS TO WHETHER THE
7 CARE WAS OR WAS NOT APPROPRIATE, AND IF NOT, WHAT SHOULD
8 HAVE BEEN APPROPRIATE. AND THAT IS EXACTLY WHAT THIS
9 TESTIMONY IS RELEVANT TO. AND IT -- IT DOES TIE TO THE
10 MEDICATIONS DIRECTLY BECAUSE THESE --
11 THE COURT: OKAY. BUT IF IT'S A QUESTION THAT HE
12 MISDIAGNOSED -- I MEAN, WHAT I HEAR MR. STIRBA SAYING THAT
13 HE DOESN'T FIND INAPPROPRIATE, HIS POSITION IS THAT YOU CAN
14 SAY IS WHAT -- IS HOW DR. WEITZEL TREATED THIS PATIENT, WAS
15 THAT APPROPRIATE? AND HE CAN SAY NO, IT WASN'T. WHY WASN'T
16 IT APPROPRIATE? BECAUSE SHE REALLY HAD THIS INSTEAD OF
17 THAT.
18 MS. BARLOW: RIGHT.
19 THE COURT: OKAY. AND THEN -- AND TO TREAT, YOU
20 KNOW, THAT PERSON THEN WITH THESE DRUGS WAS INAPPROPRIATE.
21 OKAY. I DON'T THINK HE SAYS, YOU KNOW -- WHETHER HE DOESN'T
22 LIKE THAT OR NOT, HE SAYS HE'S AGREEABLE ON THAT. I GUESS
23 THE ISSUE IS, IF HE FAILED TO DIAGNOSE SOMETHING -- YOU
24 KNOW, THERE'S A FAILURE TO DIAGNOSE, OKAY, HOW DOES THAT
25 LEAD US? FAILURE TO DIAGNOSE DELIRIUM, HOW DOES IT LEAD TO
2200
1 MURDER WAS COMMITTED?
2 MS. BARLOW: FAILURE TO DIAGNOSE DELIRIUM -- YOU
3 KNOW, I'M NOT GOING TO SAY, WELL, DID HE FAIL TO DIAGNOSE
4 IT? FAILURE TO SEE WHAT WAS WRONG LEADS TO FAILURE TO
5 CORRECTLY TREAT -- APPROPRIATELY TREAT WHAT WAS WRONG LEADS
6 TO MEDICATIONS THAT ARE WRONG, AND THE MEDICATIONS LED TO
7 THE DEATH.
8 THE COURT: OKAY. BUT ALL OF THESE ISSUES THAT WE
9 HAVE TO PROVE, YOU KNOW, ALL THE MENTAL STATE, IF HE
10 DIDN'T -- IF HE IMPROPERLY OR DID NOT DIAGNOSE DELIRIUM, SO
11 HE WAS JUST A NEGLIGENT DOCTOR --
12 MS. BARLOW: NO, BECAUSE IT CRE -- THE NEXT STEP
13 WILL BE DOES THAT CREATE A RISK OF DEATH FOR THESE PEOPLE.
14 AND -- AND IT DOES BECAUSE NOT GIVING A DIAGNOSIS -- THE
15 DIAGNOSIS OF DELIRIUM WOULD MEAN THAT YOU WOULD TAKE THEM
16 OFF OF THESE MEDICATIONS. BY NOT DIAGNOSING THAT, HE DID
17 NOT TAKE THEM OFF THE MEDICATIONS. IN FACT, HE KEPT THEM
18 ON. HE -- HE INCREASED THE AMOUNTS, AND THOSE MEDICATIONS
19 LED TO THE SUPPRESSION OF RESPIRATION AND THE SUPPRESSION OF
20 THE CENTRAL NERVOUS SYSTEM, WHICH LED TO THE TERMINAL
21 COMATOSE STATE, AT WHICH TIME HE ADMINISTERED THE MORPHINE.
22 AND SO THAT -- THAT IS WHY IT'S RELEVANT. YOU KNOW,
23 I'M NOT SAYING HE WAS A BAD DOCTOR BECAUSE HE MISDIAGNOSED.
24 WHAT DR. FEHLAUER WILL TESTIFY TO IS THAT HERE IN THE
25 D.S.M., THIS DIAGNOSTIC AND STATISTICAL --
2201
1 THE COURT: I KNOW WHAT A D.S.M. IS.
2 MS. BARLOW: OKAY. THE D.S.M. HERE IN THE D.S.M.
3 IS DELIRIUM. HERE ARE THE -- THE SYMPTOMS OF DELIRIUM.
4 THOSE SYMPTOMS WERE PRESENT. DELIRIUM WAS NOT DIAGNOSED.
5 AND THEN UNDER THE D.S.M., HERE'S WHAT YOU DO FOR DELIRIUM.
6 ONE OF THE THINGS YOU LOOK AT VERY CLOSELY IS WHETHER
7 MEDICATIONS ARE CAUSING THE DELIRIUM. AND IF MEDICATIONS --
8 AND -- AND HOW DO YOU FIND OUT IF THE MEDICATIONS ARE
9 CAUSING THE DELIRIUM? YOU WITHDRAW THE MEDICATIONS. AND
10 THAT'S NOT WHAT HAPPENED HERE.
11 APPROPRIATELY, THE APPROPRIATE SITUATION AT THAT POINT
12 WOULD BE TO WITHDRAW THE MEDICATIONS TO SEE IF THAT'S
13 CAUSING THE DELIRIUM, WHICH IS THE ACUTE PROBLEM THAT
14 BROUGHT THEM TO THE HOSPITAL. AND IF YOU DON'T WITHDRAW THE
15 MEDICATIONS, BUT INSTEAD INCREASE THE MEDICATIONS -- AND
16 THEN HE WILL TESTIFY AS TO THE EFFECT ON THE ELDERLY OF
17 THESE MEDICATIONS.
18 AND THAT CLEARLY LEADS US TO THE FINDING -- I MEAN,
19 OKAY. I WILL ASK HIM, DID IT CREATE A RISK OF DEATH TO --
20 TO INCREASE MEDICATIONS INSTEAD OF DECREASE MEDICATIONS?
21 AND -- AND FROM THERE, YOU KNOW, GETS INTO -- I MEAN, IT
22 CONTINUES OUR THEORY OF THE CASE THAT MEDICATIONS -- --
23 OVERMEDICATION IS WHAT KILLED THESE PEOPLE.
24 THE COURT: OKAY. ANYTHING FURTHER?
25 MR. STIRBA: I JUST WANT TO SAY THIS, JUDGE. I
2202
1 THINK THE PROBLEM IS -- IT'S NOT THE ADDRESSING THE
2 MEDICATIONS. IT'S GOING DOWN THIS PATH OF DELIRIUM AS BEING
3 SOMEHOW RELEVANT TO THE DEATH. THE MEDICATIONS, AS I
4 UNDERSTAND IT, ARE RELEVANT TO THE DEATHS. IF THIS DOCTOR
5 WANTS TO SAY THE MEDICATIONS SHOULD NOT HAVE BEEN PRESCRIBED
6 BECAUSE IN MY OPINION THEY SUFFERED FROM DELIRIUM, I GUESS
7 HE CAN SAY THAT. I DON'T -- THAT'S NOT MY PROBLEM.
8 BUT GOING DOWN THIS EXTENSIVE PATH LIKE HE MISDIAGNOSED
9 OR HE DIDN'T SEE IT OR SOMETHING LIKE THAT, THAT'S WHERE I
10 HAVE A PROBLEM WITH THE QUESTIONING. I THINK IT SHOULD BE
11 POSED AFFIRMATIVELY IN TERMS OF: WOULD YOU HAVE PRESCRIBED
12 X ON SUCH AND SUCH A DAY?
13 AND THEN THE DOCTOR CAN SAY, I GUESS, NO.
14 WHY NOT?
15 BECAUSE I DON'T FEEL THAT WAS THE APPROPRIATE
16 MEDICATION BECAUSE I THOUGHT THEY WERE DELIRIOUS.
17 I MEAN, THAT IS NOT MY PROBLEM. IT'S GOING FURTHER IN
18 TERMS OF THE CONDUCT AND THE MISDIAGNOSIS -- OR THE APPARENT
19 MISDIAGNOSIS AND GOING DOWN THAT TRAIL WHERE I THINK WE
20 REALLY ARE LITIGATING A CIVIL CASE AND NOT A MURDER CASE.
21 MS. BARLOW: BUT CONDUCT HE CAN TESTIFY TO, YOUR
22 HONOR. I MEAN, THAT -- THAT'S NOT A VIOLATION OF 704.
23 THE COURT: NO, BUT I GUESS THE QUESTION IS
24 RELEVANCE. WHAT -- WHAT WE'RE TALKING ABOUT IS RELEVANCE
25 AND WHAT WE WERE TALKING ABOUT BEFORE AND WHAT I'VE SAID IS
2203
1 THAT IF SOMEBODY DIDN'T TAKE AN X-RAY, YOU KNOW, IS THAT --
2 WOULD THAT CAUSE THESE PEOPLE TO DIE? DID SOMEBODY -- YOU
3 KNOW, IF THEY ARE MISDIAGNOSIS -- IF THERE WAS A
4 MISDIAGNOSIS, DID THAT CAUSE SOMEBODY TO DIE?
5 MS. BARLOW: YOUR HONOR, IT -- IT'S NOT JUST --
6 IT'S NOTHING THAT YOU CAN SAY AT THIS POINT -- AND IT
7 WOULDN'T BE JUST AT THIS POINT THIS ONE THING CAUSED THE
8 DEATH, ALTHOUGH PERHAPS -- WELL, AND IT ISN'T. IT'S THE
9 OVERMEDICATION. BUT WHAT LED TO THE OVERMEDICATION IS
10 RELEVANT, AND I THINK THE JURY NEEDS TO BE INFORMED.
11 THE COURT: BUT -- BUT YOU'RE STARTING OUT --
12 AREN'T -- AREN'T YOU STARTING OUT WITH A NEGLIGENCE ISSUE?
13 IF YOU'RE SAYING THAT HE MISDIAGNOSED -- IF THIS WITNESS IS
14 GOING TO SAY HE MISDIAGNOSED THIS AS DEMENTIA WHEN IT WAS
15 DELIRIUM -- IS THAT WHAT HE'S GOING TO TESTIFY?
16 MS. BARLOW: I DON'T -- HE'S NOT GOING TO MAKE --
17 HE'S NOT GOING TO SAY THERE WAS A MISDIAGNOSIS.
18 THE COURT: WELL, WHY DO WE A BIG -- WHY DO WE HAVE
19 A BIG CHART ABOUT DEMENTIA AND DELIRIUM AND THE DIFFERENCES
20 BETWEEN THEM, AND HERE'S WHAT I GO OUT AND LECTURE ON.
21 MS. BARLOW: SO -- BECAUSE THE JURY -- THE JURY HAS
22 HEARD THE WORD DEMENTIA. YOU KNOW, THEY'RE GOING TO HEAR
23 THE WORD DELIRIUM. WHAT DOES THAT MEAN. THAT'S WHY WE HAVE
24 AN EXPERT HERE. WE HAVE AN EXPERT HERE TO EDUCATE THEM AS
25 TO WHAT DEMENTIA VERSUS DELIRIUM IS.
2204
1 THE COURT: OKAY. BUT WE GET BACK TO THE POINT
2 THAT WE HAVE TO HAVE SOME SORT OF INTENTIONAL CONDUCT TO
3 PROVE MURDER. AND YOU'RE SAYING THAT HOW WE GET TO THAT?
4 MS. BARLOW: OR KNOWING CONDUCT.
5 THE COURT: WELL, KNOWING CONDUCT. BUT IT'S NOT
6 KNOWING CONDUCT, IT'S NEGLIGENT CONDUCT IF A PERSON
7 MISDIAGNOSES DEMENTIA INSTEAD OF DELIRIUM.
8 MS. BARLOW: WELL, IT'S NOT AN INSTEAD OF. I MEAN,
9 OKAY, IT MAY BE NEGLIGENCE IF HE DOES IT WITH ONE PERSON,
10 BUT -- AND I CAN'T REMEMBER WHICH CASE IT IS IN OUR TRIAL
11 MEMORANDA, BUT -- NO, ACTUALLY IT'S -- IT'S THE WEINSTEIN
12 QUOTE, I BELIEVE, IN THE TRIAL MEMORANDUM ABOUT, YOU KNOW,
13 MAYBE ONCE IT HAPPENS IT MAY BE NEGLIGENCE, IT MAY BE A
14 MISTAKE, IT MAY BE INADVERTENCE, BUT WHEN YOU HAVE IN FIVE
15 CASES WITHIN A, YOU KNOW, JUST A SIX-WEEK PERIOD OF TIME,
16 WHERE THERE IS CLEAR EVIDENCE OF DELIRIUM AND EACH TIME THE
17 DEFENDANT JUST IGNORED -- AND AS A DOCTOR, HOLDING HIMSELF
18 AS A GERIATRIC SPECIALIST, HE SHOULD KNOW TO LOOK FOR
19 DELIRIUM. AND HE HOLDS -- SO -- SO WITH FIVE PATIENTS OVER
20 THIS SIX-WEEK PERIOD OF TIME, HE JUST DOESN'T -- I DON'T
21 KNOW IF HE DOESN'T SEE IT AND THAT WOULD PROBABLY BE
22 RECKLESSNESS --
23 THE COURT: OKAY. LET'S SAY WE HAD FIVE DEMENTED
24 PATIENTS --
25 MS. BARLOW: UH-HUH.
2205
1 THE COURT: -- AND HE SAYS OH, GEE. THEY ALL LOOK
2 DEMENTED TO ME, BUT, YOU KNOW, HE WAS WRONG. HE WAS WRONG
3 AND HE WAS NEGLIGENT BECAUSE HE SHOULD HAVE LOOKED UP
4 D.S.M.-III R. AND IF HE WOULD HAVE LOOKED UNDER DELIRIUM HE
5 WOULD HAVE SAID, OH, MY GOSH, WHAT I REALLY HAVE IS
6 DELIRIUM. INSTEAD OF SAYING, HEY, THESE GUYS HAVE DEMENTIA.
7 I REALLY KNOW THEY'VE GOT DELIRIUM, BUT I'M GOING TO SHOW --
8 I'M GOING TO TREAT THEM LIKE THEY'VE GOT DEMENTIA.
9 THOSE TO ME ARE TWO DIFFERENT ISSUES. ONE SHOWS
10 KNOWLEDGE AND INTENT. ONE SHOWS, HEY, HE WAS A BAD DOCTOR.
11 HE DIDN'T UNDERSTAND.
12 MS. BARLOW: WELL, AND YOUR HONOR, THEY MAY SHOW
13 THE SAME THING. BUT, I MEAN, IF WITH ONE PERSON, IF IT
14 HAPPENS WITH ONE PATIENT --
15 THE COURT: I KNOW, BUT IF YOU HAVE FIVE PATIENTS
16 THAT ARE EXACTLY THE SAME --
17 MS. BARLOW: AND THEY AREN'T EXACTLY THE SAME.
18 THE COURT: BUT, I MEAN, DEMENTIA VERSUS DELIRIUM.
19 MS. BARLOW: UH-HUH. IT'S NOT VERSUS. IT'S
20 DEMENTIA IN ADDITION TO DELIRIUM.
21 THE COURT: THEY ALL COME IN -- OKAY. BUT THEY ALL
22 COME IN HERE -- YOU KNOW, WHAT I'VE HEARD IS THAT THESE FIVE
23 PATIENTS BASICALLY CAME IN HERE, MOST OF THEM, FROM REST
24 HOMES. THEY WERE IN REST HOMES BECAUSE THEY WERE SUFFERING
25 EITHER ALZHEIMER'S OR DEMENTIA IN SOME FORM.
2206
1 MS. BARLOW: RIGHT.
2 THE COURT: IS THAT AGREED OR NOT?
3 MS. BARLOW: THAT'S AGREED. HE -- HE WILL --
4 THE COURT: OKAY. SO HE'S NOT --
5 MS. BARLOW: HE'S NOT GOING TO SAY THEY'RE NOT
6 DEMENTED.
7 THE COURT: YOU'VE GOT FIVE OLDER PEOPLE WHO ARE
8 SUFFERING FROM DIFFERENT FORMS OF DEMENTIA THAT COME IN
9 HERE. THEY'RE ALL -- LET'S SAY THEY'RE ALL IN THE SAME SORT
10 OF SITUATION. SO THAT SAY LIKE -- LET'S JUST SAY THIS. HE
11 SAYS THEY WERE MISDIAGNOSED. IT SHOULD HAVE BEEN DELIRIUM.
12 AND THEN THE JURY GOES IN THERE AND HOW DO THEY DEAL WITH
13 THAT. THE DOCTOR MISDIAGNOSED THEM, THEREFORE, HE MURDERED
14 THEM?
15 MS. BARLOW: NO, YOUR HONOR, BECAUSE THAT IS NOT
16 THE ONLY EVIDENCE. I MEAN, THIS IS JUST ONE PART OF THE
17 EVIDENCE.
18 THE COURT: I UNDERSTAND.
19 MS. BARLOW: AND WE -- AND WE HAVE TO -- YOU KNOW,
20 WE HAVE TO BUILD IT ONE UPON THE OTHER BECAUSE THIS IS NOT
21 SOMETHING THAT JUST ALL OF A SUDDEN A GUN WAS PULLED OUT AND
22 A SHOT WAS FIRED.
23 THE COURT: I UNDERSTAND THAT, BUT I MEAN, WHAT --
24 WHAT IS WRONG WITH ASKING THIS WITNESS, WAS IT
25 APPROPRIATE -- OKAY. WHAT YOU VIEWED -- YOU SAW THE RECORDS
2207
1 SIX MONTHS BEFORE, YOU SAW THE ADMISSION, AND YOU SAW THE
2 FIRST THING THAT DR. WEITZEL DID. WAS THAT APPROPRIATE?
3 NO, IT WASN'T APPROPRIATE.
4 WHY WASN'T IT APPROPRIATE?
5 BECAUSE IT REALLY WASN'T DEMENTIA. IT WAS DELIRIUM.
6 AND HE SHOULDN'T HAVE DONE THAT.
7 MS. BARLOW: AND THEN CAN HE EXPLAIN THE DIFFERENCE
8 BETWEEN DEMENTIA AND DELIRIUM?
9 THE COURT: WELL, BUT SEE, IF WE GET IN THE BIG
10 ISSUE --
11 MS. BARLOW: AND I'M FINE WITH THAT, YOUR HONOR.
12 THE COURT: -- ABOUT DEMENTIA AND DELIRIUM AND
13 MISDIAGNOSIS, THEN WE'VE GOT A NEGLIGENCE CASE.
14 MS. BARLOW: YOUR HONOR, I WILL -- I WILL BE HAPPY
15 TO ASK IT IN THAT WAY BECAUSE I THINK IT GETS US TO THE SAME
16 POINT THEN HE SHOULD BE ALLOWED TO --
17 THE COURT: CAN I SEE THE CHART, PLEASE?
18 MS. BARLOW: SURE.
19 THE COURT: THANK YOU.
20 OKAY. IN LIGHT OF WHAT -- IF HE ASKS THAT IT WAS
21 INAPPROPRIATE, AND THEN TO ILLUSTRATE HIS TESTIMONY HE SAYS
22 OKAY, HERE'S -- HERE'S DEMENTIA, HERE'S DELIRIUM, HERE'S WHY
23 I THINK IT WAS INAPPROPRIATE. WHAT IS YOUR RESPONSE TO
24 THAT -- AS TO THAT CHART SPECIFICALLY?
25 MR. STIRBA: WELL, IF WE'RE GOING TO PUT IT IN
2208
1 THAT -- IN THAT VEIN, YOUR HONOR, I THINK PROBABLY HE CAN
2 USE THAT TO ILLUSTRATE HIS TESTIMONY. I'M -- I'M JUST
3 CONCERNED ABOUT THE NEGATIVE, WHAT I'VE BEEN TALKING ABOUT,
4 VERSUS JUST WHAT WAS WRONG.
5 THE COURT: OKAY. WELL, WHAT -- WHAT I'M GOING TO
6 SAY IS THAT HE CAN SAY -- HE CAN TESTIFY REGARDING WHETHER
7 OR NOT WHAT DR. WEITZEL DID WAS APPROPRIATE, AND IF HE
8 DOESN'T FEEL IT WAS APPROPRIATE, HE CAN TESTIFY AS TO
9 WHAT -- WHAT SHOULD HAVE BEEN THE APPROPRIATE CARE.
10 MS. BARLOW: I'LL PHRASE IT THAT WAY, YOUR HONOR.
11 THE COURT: AND IF HE SAYS IT'S BECAUSE IT'S THIS
12 OTHER CONDITION AND THIS IS HOW YOU SHOULD HAVE TREATED IT,
13 YOU KNOW, THAT'S FINE. AND THEN BY SAYING THAT YOU -- BUT
14 IF YOU JUST SAY, YOU KNOW, HE MISDIAGNOSED IT AND THEN --
15 THEN THAT ADDED AND ADDED AND ADDED, THEN THAT'S NEGLIGENCE
16 AND IT DOESN'T LEAD -- YOU KNOW, IT WILL ALLOW THE JURY TO
17 DETERMINE IT ON NEGLIGENCE. I MEAN, YOU CAN SAY, YOU KNOW,
18 THOSE ISSUES, JUST AS I MENTIONED IT. YOU CAN GO FORWARD
19 AND SAY, WAS IT APPROPRIATE? WHY NOT? BECAUSE IT WAS THIS.
20 AND MAYBE THAT -- YOU OUGHT TO ASK THAT QUESTION FIRST AND
21 THEN SAY, CAN YOU TELL US THE DIFFERENCE?
22 MS. BARLOW: WAS THE TREATMENT APPROPRIATE?
23 THE COURT: YEAH, AND CAN YOU TELL US THE
24 DIFFERENCE BETWEEN DEMENTIA AND DELIRIUM?
25 YES, I CAN. HERE'S THE CHART.
2209
1 MS. BARLOW: BEFORE THE JURY COMES BACK IN, I GUESS
2 IF I ASK, WAS THE TREATMENT THAT YOU SAW GIVEN TO ELLEN
3 ANDERSON APPROPRIATE, YOU KNOW, RATHER THAN HAVE THE JURY
4 COME IN AND HAVE THAT BE OBJECTED TO --
5 THE COURT: NO, YOU CAN ASK --
6 MR. STIRBA: WELL, NO, THE TREATMENT IS -- THAT
7 WOULD BE VAGUE AND AMBIGUOUS. I MEAN, WE'RE TALKING ABOUT
8 SPECIFIC THINGS THAT OCCURRED.
9 THE COURT: WELL, YOU CAN ASK WHAT -- WHAT WAS
10 DONE.
11 MS. BARLOW: OKAY.
12 THE COURT: FIRST OF ALL, ASK HIM WHAT WAS DONE,
13 AND THEN YOU CAN ASK, WAS THAT APPROPRIATE.
14 ALL RIGHT. LET'S BRING THE JURY IN THEN.
15 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION, AFTER
16 WHICH THE JURY ENTERS THE COURTROOM.)
17 THE COURT: OKAY. SORRY, I GOT YOU IN HERE TOO
18 FAST BEFORE THE REPORTER ASKED ME THAT SHE COULD CHANGE HER
19 PAPER.
20 THE RECORD SHOULD NOW REFLECT THAT THE JURY IS BACK.
21 MISS BARLOW, WOULD YOU LIKE TO CONTINUE?
22 MS. BARLOW: YES. THANK YOU, YOUR HONOR.
23 Q. (BY MS. BARLOW) IN YOUR REVIEW OF THE RECORDS OF THE
24 TREATMENT OF ELLEN ANDERSON, DID YOU REVIEW WHAT -- WHAT WAS
25 DONE BY THE DOCTOR?
2210
1 A. I DID.
2 Q. AND WHAT WAS DONE BY THE DOCTOR, WAS THAT APPROPRIATE,
3 IN YOUR OPINION?
4 A. NO.
5 Q. AND WHY WAS IT NOT APPROPRIATE?
6 A. THERE WAS A FAILURE TO RECOGNIZE THE OCCURRENCE OF
7 DELIRIUM IN THIS PATIENT; AND, THEREFORE, A FAILURE TO
8 ADEQUATELY EVALUATE AND MANAGE THE PATIENT RELATIVE TO A
9 REVERSIBLE CONDITION.
10 Q. DOES STATE'S EXHIBIT 29 -- WHICH YOU'VE IDENTIFIED AS A
11 CHART THAT YOU PREPARED -- DOES IT DEMONSTRATE THE
12 DIFFERENCE BETWEEN DEMENTIA AND DELIRIUM?
13 A. THAT'S WHAT IT'S INTENDED TO DO, YES.
14 MS. BARLOW: YOUR HONOR, MAY -- I WOULD MOVE FOR
15 SUBMISSION OF STATE'S EXHIBIT 29.
16 MR. STIRBA: FOR ILLUSTRATIVE PURPOSES, I ASSUME?
17 MS. BARLOW: YES.
18 THE COURT: OKAY. YES.
19 MR. STIRBA: NO -- NO OBJECTION.
20 THE COURT: GO AHEAD.
21 Q. (BY MS. BARLOW) LET'S PUT THIS UP HERE AND ASK YOU TO
22 EXPLAIN TO THE JURY --
23 MS. BARLOW: CAN EVERYBODY SEE THAT OKAY?
24 THE WITNESS: DO YOU WANT ME TO SLIDE IT CLOSER?
25 MS. BARLOW: THAT MIGHT BE BETTER. IS THAT BETTER?
2211
1 A. THE ISSUE RELATIVE --
2 Q. (BY MS. BARLOW) MAYBE I'D BETTER ASK A QUESTION.
3 THE COURT: YEAH, WE NEED TO -- YEAH, PROCEED BY
4 QUESTION AND ANSWER. THAT'S GOOD.
5 Q. (BY MS. BARLOW) UNFORTUNATELY, YOU'RE NO LONGER IN
6 SCHOOL.
7 WHAT IS THIS CHART?
8 A. THIS CHART IS A CHART I PREPARED AND USE IN HANDOUTS
9 WHEN I LECTURE THAT IS MEANT TO HELP PEOPLE DISCRIMINATE
10 BETWEEN DEMENTIA AND DELIRIUM.
11 Q. AND OVER HERE IT SAYS FINDING. WHAT DOES THAT MEAN?
12 A. FINDING IS EITHER A SYMPTOM OR AN OBSERVATION THAT IS
13 MADE OF THE PATIENT.
14 Q. WHAT'S THE FIRST FINDING YOU LOOK FOR IN DETERMINING
15 DEMENTIA VERSUS DELIRIUM?
16 A. THE FIRST FINDING HERE IS ONSET. AND WHAT THAT
17 BASICALLY MEANS IS -- IS THE ONSET OR THE START OF THIS
18 ILLNESS, WHAT IS THAT CHARACTERIZED BY.
19 Q. AND WHAT'S THE DIFFERENCE BETWEEN DEMENTIA AND DELIRIUM
20 AS FAR AS ONSET'S CONCERNED?
21 A. IN ALZHEIMER'S DISEASE, FOR EXAMPLE, IS THE MOST COMMON
22 CAUSE OF DEMENTIA. THE ONSET OF THE ILLNESS IS INSIDIOUS.
23 IT'S USUALLY UNRECOGNIZED THAT SOMEONE IS BEGINNING TO LOSE
24 THEIR ABILITY TO REMEMBER THINGS OR TO FUNCTION BECAUSE IT'S
25 SO EXQUISITELY SMALL AND THERE'S SO MUCH CAPACITY TO -- OF
2212
1 THE BRAIN TO COMPENSATE FOR THAT, THAT IT VERY SLOWLY BEGINS
2 TO BE SEEN.
3 Q. AND WHAT ABOUT DELIRIUM?
4 A. DELIRIUM AS A MARKER FOR SERIOUS MEDICAL ILLNESS,
5 INTOXICATION WITH DRUGS OR WITHDRAWAL, IS USUALLY ACUTE. IT
6 CAN BE LIKE A LIGHT SWITCH. A PATIENT CAN BE WELL ONE DAY,
7 ONE MORNING, SICK THE NEXT HOUR, THE NEXT AFTERNOON, THE
8 NEXT DAY, AND EXHIBITS SYMPTOMS OF CONFUSION THAT MIMIC
9 DEMENTIA, BUT DO SO IN A SUDDEN WAY.
10 Q. WHAT ABOUT THE NEXT FINDING, STABILITY OF SYMPTOMS?
11 A. ARE THE SYMPTOMS THE SAME, RELATIVELY SPEAKING, OVER
12 TIME, TAKING INTO ACCOUNT NATURAL SMALL VARIATIONS. AND IN
13 DEMENTIA THE -- THE -- THE SYMPTOMS THAT THE PATIENT MIGHT
14 EXHIBIT, THEIR MEMORY LOSS OR THEIR INABILITY TO CARE FOR
15 THEMSELVES, ARE RELATIVELY STABLE. THEY SLOWLY PROGRESS,
16 BUT THEY DON'T WILDLY VARY FROM ONE PART OF THE DAY TO THE
17 NEXT, OR ONE WEEK TO THE NEXT. AND THAT'S A SYMPTOM OR A
18 HALLMARK OF DELIRIUM, THAT THEY'RE WILDLY FLUCTUATING IN
19 SYMPTOMS OR ABILITIES OR SIGNS.
20 Q. THEN LEVEL OF CONSCIOUSNESS?
21 A. THE LEVEL OF CONSCIOUSNESS IS -- IS HOW DO WE INTERACT
22 WITH EACH OTHER. ARE YOU AWARE OF YOUR ENVIRONMENT? DO YOU
23 INTERACT WITH YOUR ENVIRONMENT NORMALLY? AND GENERALLY
24 SPEAKING, PATIENTS WHO ARE DEMENTED, EVEN IN THE LATE
25 STAGES, ARE AWARE OF THEIR ENVIRONMENT AND RESPOND
2213
1 APPROPRIATELY TO THEIR ENVIRONMENT. THAT IS, THAT A PERSON
2 APPROACHES THEM, THEY RECOGNIZE THEM AS A PERSON. THEY
3 GREET THEM SOCIALLY LIKE THEY WOULD GREET A PERSON.
4 THEY'RE --
5 Q. BUT THEY MAY NOT NECESSARILY KNOW WHO THE PERSON IS.
6 A. THAT'S CORRECT. THEY ARE AWAKE WHEN THEY'RE SUPPOSED TO
7 BE AWAKE, THEY'RE ASLEEP WHEN THEY'RE SUPPOSED TO BE ASLEEP,
8 GENERALLY SPEAKING.
9 AND IN DELIRIUM THE LEVEL OF CONSCIOUSNESS IS IMPAIRED.
10 THEY HAVE A HARD TIME RELATING TO THEIR ENVIRONMENT, TO
11 PEOPLE WHO ARE IN IT OR THE THINGS THAT ARE IN IT. THEY
12 HAVE A HARD TIME MAINTAINING THEIR ABILITY TO ATTEND OR
13 INTERACT WITH WHAT'S GOING ON AROUND THEM.
14 Q. THE NEXT FINDING IS PSYCHOMOTOR ACTIVITY. WHAT IS THAT?
15 A. THAT IS A BIG $25 TERM MEANING, ARE YOU FIDGETY? ARE
16 YOU NORMALLY RESTING IN THE CHAIR, SITTING COMFORTABLY? ARE
17 YOU, WHEN YOU'RE UP AND MOVING, MOVING APPROPRIATELY?
18 AND THE LATE STAGES OF THE DEMENTIA CAN HAVE
19 RETARDATION AND -- AND FREQUENTLY DOES HAVE RETARDATION OF
20 PSYCHOMOTOR ACTIVITY. THAT IS TO SAY THAT PEOPLE BECOME
21 UNABLE TO STAND OR RISE AND WALK OR TO ACT QUICKLY ENOUGH OR
22 WITH FACILITY THAT THEY SHOULD IN CARING FOR THEMSELVES IN
23 DRESSING, FEEDING, THOSE KINDS OF THINGS.
24 IT ALSO HAS TO DO WITH THE INTERACTION TO THE
25 ENVIRONMENT, KIND OF THE WAY WE OBSERVE THEM. ARE THEY
2214
1 WITHDRAWN? THAT WOULD BE REDUCED PSYCHOMOTOR ACTIVITY. ARE
2 THEY HARD TO AROUSE, FOR EXAMPLE. OR ARE THEY PHYSICALLY
3 AGITATED? ARE THEY TOO ACTIVE OR HYPERACTIVE?
4 SO NORMALLY IN LATE DEMENTIA PATIENTS CAN BECOME
5 RETARDED OR CAN DEVELOP AGITATION, BUT LIKE THE OTHER
6 FINDINGS, IT TENDS TO BE SLOWLY PROGRESSIVE AND STABLE OVER
7 THE COURSE OF TIME.
8 IN DELIRIUM THEY ARE FREQUENTLY RETARDED OR AGITATED,
9 AND THIS DOES NOT REMAIN STABLE. IT'S USUALLY WILDLY
10 FLUCTUATING.
11 Q. SO ONE MINUTE THEY MAY BE NOT MOVING AT ALL OR VERY
12 LITTLE, AND THE NEXT THEY MAY BE --
13 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR.
14 LEADING AND SUGGESTIVE.
15 THE COURT: SUSTAINED.
16 Q. (BY MS. BARLOW) WOULD YOU EXPLAIN THAT JUST A LITTLE
17 FURTHER?
18 A. THAT ONE MOMENT THEY MAY BE VERY RETARDED. THEY MAY BE
19 LYING IN BED UNAROUSABLE, AND WITHIN A FEW MOMENTS TO AN
20 HOUR, THEY MAY BE -- THEY MAY BE QUITE PHYSICALLY AGITATED,
21 FLINGING THEMSELVES ABOUT THE BED. THEY MAY BE PACING.
22 THEY MAY BE ATTEMPTING TO HIT SOMEONE. OKAY? AND THAT CAN
23 OCCUR WITHIN THE COURSE OF HOURS AND CERTAINLY WITHIN THE
24 COURSE OF A DAY.
25 Q. THE NEXT FINDING IS HALLUCINATIONS.
2215
1 A. HALLUCINATIONS ARE PERCEPTIONS OF THE ENVIRONMENT THAT
2 AREN'T REAL. SO IT'S USE OF YOUR SENSES. YOU CAN HAVE
3 HALLUCINATIONS GENERATED FROM YOUR NOSE. IT'S CALLED
4 OLFACTORY HALLUCINATIONS. THAT'S AMONG THE MOST BIZARRE
5 AND -- AND SHOWS THE MOST WILDLY DISORDERED BRAIN FUNCTION.
6 BUT COMMON ONES THAT PEOPLE THINK OF ARE AUDITORY
7 HALLUCINATIONS, HEARING VOICES OR SEEING THINGS THAT AREN'T
8 THERE. THOSE ARE RARELY PRESENT IN TRUE DEMENTIA. VISUAL
9 OR AUDITORY HALLUCINATIONS ARE RARELY PRESENT, BUT THEY ARE
10 FREQUENTLY PRESENT IN DELIRIOUS PATIENTS.
11 Q. NEXT FINDING IS SPEECH. WHAT DOES THAT MEAN?
12 A. THE PRODUCTION OF SPEECH IS OBVIOUSLY A HALLMARK OF
13 BEING A HUMAN BEING AND BEING A PERSON WHO CAN INTERACT AND
14 FULLY INTERACT WITH ALL OF THEIR CAPABILITIES. SPEECH
15 PRODUCTION EARLY ON IN ALZHEIMER'S DISEASE OR OTHER FORMS OF
16 DEMENTIA WHERE THE SPEECH CENTER HAS NOT BEEN DAMAGED
17 SPECIFICALLY IS INTACT. PEOPLE ARE ABLE TO HOLD
18 CONVERSATIONS. AND EVEN INTO THE LATE STAGES OF THE DISEASE
19 THE PATIENT OFTEN IS ABLE TO GENERATE COHERENT SPEECH. BUT
20 THE AMOUNT OF THAT SPEECH MAY BE REDUCED AND THE CONTENT --
21 THE BREADTH OF THE THINGS THAT THEY CAN BE CONVERSANT ABOUT
22 MAY BE REDUCED.
23 THE PATTERN OF SPEECH IN DELIRIOUS PATIENTS IS OFTEN
24 FREQUENTLY DISORGANIZED. THEIR SPEECH CAN MAKE NO SENSE.
25 IT CAN BE ONE NONSENSICAL WORD AFTER ANOTHER. YOU MAY BE
2216
1 ABLE TO UNDERSTAND IT, BUT THE WORDS DON'T LINK TO EACH
2 OTHER, IT DOESN'T MAKE SENSE WHERE THEIR THOUGHTS ARE GOING
3 AND THE SPEECH THAT THEY'RE GENERATING. OR IT CAN BE
4 DISORGANIZED COMPLETELY AND GARBLED. AND THIS, TOO, CAN
5 VARY THROUGHOUT THE DAY.
6 Q. REPETITIVE SPEECH. DOES THAT FIT INTO EITHER OF THESE
7 CATEGORIES?
8 A. IF SOMEONE IS REPETITIVELY CALLING OUT, THAT CAN BE
9 PRESENT IN -- IN DEMENTIA. WHAT I'M SPEAKING ABOUT IS -- IS
10 THE THOUGHTS AND THE ABILITY TO GENERATE THE SPEECH.
11 Q. THE NEXT FINDING IS SLEEP PATTERNS.
12 A. PEOPLE ARE MEANT TO BE AWAKE IN THE DAY AND MEANT TO
13 SLEEP AT NIGHT. OLDER PEOPLE -- NORMAL OLDER PEOPLE HAVE
14 DISORDERS OF SLEEP THAT'S -- THEIR SLEEP IS LESS RESTFUL,
15 THEY TEND TO HAVE MORE AWAKENINGS AND TEND TO NAP PART OF
16 THE DAY, IF THEY CAN.
17 DEMENTED PATIENTS USUALLY ACT LIKE NORMAL OLDER PEOPLE
18 RELATIVE TO THEIR SLEEP PATTERNS. THEY CAN HAVE ALTERATIONS
19 OF THEIR SLEEP PATTERNS AND HAVE MORE AWAKENINGS AT NIGHT
20 AND MORE SLEEPING DURING THE DAY. BUT AGAIN, IT'S USUALLY
21 FAIRLY PREDICTABLE, FAIRLY SLOW, FAIRLY STABLE.
22 A PATIENT WITH DEMENTIA -- I MEAN DELIRIUM HAS
23 INVARIABLY GOT DISTURBED SLEEP. INSTEAD OF SLEEPING AT
24 NIGHT, THEY'RE AWAKE. THEN WHEN THEY'RE SUPPOSED TO BE
25 AWAKE IN THE DAY, THEY'RE ASLEEP. AND THEY MAY SLEEP IN
2217
1 PATCHES. THEY MAY -- THEY MAY HAVE QUITE DISORGANIZED
2 SLEEP.
3 Q. THE FINAL FINDING IS MOOD DISTURBANCES.
4 A. MOOD DISTURBANCES, DEPRESSION, FOR EXAMPLE, OR ANXIETY
5 IS EXTREMELY COMMON IN PEOPLE WITH DEMENTIA. IT'S -- IN MY
6 NURSING HOME PATIENTS, 50 PERCENT OF THEM ARE ON ONE FORM OF
7 AN ANTIDEPRESSANT OR ANOTHER. BECAUSE THEY HAVE THESE MOOD
8 DISTURBANCES, THE TREATMENT IS NECESSARY. BUT THE TREATMENT
9 TENDS TO -- THE SYMPTOMS THAT THEY EXHIBIT TEND TO BE LIKE
10 ADULTS WITH DEPRESSION. IT TENDS TO BE RELATIVELY STABLE OR
11 PROGRESSIVE, BUT NOT WITH WILD FLUCTUATIONS AND IT'S
12 MANAGEABLE. THAT IS TO SAY, THAT THE MEDICATIONS WORK TO
13 TREAT A STANDARD SORT OF MOOD DISTURBANCE IN A PATIENT WITH
14 DEMENTIA.
15 THE DELIRIOUS PATIENT HAS MOOD DISTURBANCES WHICH VARY
16 WILDLY OVER THE COURSE OF DAYS OR HOURS. AND AT ONE POINT
17 THEY CAN BE CALM AND COOPERATIVE, TAKING THEIR MEDICATION,
18 SITTING CALMLY IN A CHAIR, AND THE NEXT MINUTE THEY MAY BE
19 ANGRY, VERY ANXIOUS, REPETITIVE. THEY MAY BE SUDDENLY VERY
20 SAD AND TEARFUL AND CRYING UNCONSOLABLY. AND ANOTHER HOUR
21 LATER, THOSE SYMPTOMS MAY BE GONE.
22 THAT'S THE NATURAL COURSE OF THIS DISEASE WHICH IS TO
23 SAY THAT THE BRAIN IS MALFUNCTIONING IN A WAY THAT CANNOT BE
24 PREDICTED OVER THE COURSE OF HOURS OR DAYS.
25 Q. DID YOU SEE IN YOUR REVIEW OF THE RECORDS INVOLVING
2218
1 ELLEN ANDERSON, THE ONES AT DAVIS NORTH AND THEN THE PRIOR
2 RECORDS FOR THE NURSING HOMES OR HOSPITALIZATIONS, ANY
3 SYMPTOMS OF DELIRIUM?
4 A. YES.
5 Q. WHAT SYMPTOMS DID YOU SEE?
6 A. CAN I REFER TO MY NOTES?
7 THE COURT: ARE -- ARE YOU DONE WITH THE CHART THAT
8 HE CAN TAKE THE CHAIR?
9 MS. BARLOW: I'LL MOVE IT BACK HERE.
10 A. I'VE REVIEWED NURSING FACILITY RECORDS FROM AUGUST 1995
11 THROUGH DECEMBER 29, 1995.
12 Q. (BY MS. BARLOW) OF ELLEN ANDERSON?
13 A. OF ELLEN ANDERSON.
14 Q. DID YOU SEE ANY SYMPTOMS OF DELIRIUM?
15 A. YES.
16 Q. WHAT SYMPTOMS DID YOU SEE?
17 A. EXAMINING THE RECORD I USED THE NURSING ASSESSMENTS,
18 PHYSICIAN'S NOTES, AND ANCILLARY NOTES BY THERAPISTS AND
19 OTHER PEOPLE TO SEE IF THERE WAS EVIDENCE OF DELIRIUM. THE
20 SYMPTOMS I'VE GIVEN YOU ON THIS CHART ARE A PORTION OF THE
21 DIAGNOSTIC CRITERIA IN THE D.S.M. MANUAL, THIS DIAGNOSTIC
22 AND STATISTICAL MANUAL, THAT IS PUT OUT BY THE AMERICAN
23 PSYCHIATRIC ASSOCIATION FOR DEFINING PSYCHIATRIC DISEASES.
24 Q. IS THAT ACCEPTED IN THE PSYCHIATRIC COMMUNITY, THAT
25 D.S.M.?
2219
1 A. YES. EXAMINING THE RECORDS I WANTED TO BE AS EXACT AS I
2 COULD OVER TIME DEFINING WHAT IT WAS THAT I SAW THERE. AND
3 IN ORDER TO DO THAT I USED A PUBLISHED AND STANDARD
4 INSTRUMENT THAT TAKES THE D.S.M. CRITERIA AND PUTS THEM ON A
5 SCALE SO THAT THEY CAN BE SCORED. THAT INSTRUMENT --
6 MR. STIRBA: YOUR HONOR, I DON'T MEAN TO INTERRUPT.
7 I HAVE A RELEVANCY OBJECTION IN TERMS OF THE FOUNDATION FOR
8 THE OPINION, IF IT'S NOT RELATED TO THE DAVIS HOSPITAL
9 RECORDS. I MEAN, HE'S -- HE'S RENDERED HIS OPINION AS TO
10 WHAT HE THINKS, BUT NOW TO GET INTO --
11 THE COURT: YEAH, LET'S NARROW -- LET'S GET TO THE
12 RECORDS THAT WERE AT THE DAVIS HOSPITAL.
13 Q. (BY MS. BARLOW) IN YOUR REVIEW OF THE RECORDS OF DAVIS
14 NORTH HOSPITAL, DID YOU SEE ANYTHING IN THOSE RECORDS
15 INDICATING DELIRIUM?
16 A. I DID.
17 Q. WHAT RECORDS DID YOU -- OR WHAT DID YOU SEE IN THOSE
18 RECORDS INDICATING DELIRIUM?
19 A. REVIEWING DR. WEITZEL'S ADMISSION ASSESSMENT, THE
20 NURSE'S ADMISSION ASSESSMENT, IT'S QUITE CLEAR THAT THE
21 PATIENT HAD DISTURBANCE IN -- IN HER -- THE ONSET. THAT THE
22 ONSET WAS WITHIN THE COURSE OF A MONTH OR SO. THAT THE
23 CHANGE IN BEHAVIOR THAT SHE WAS EXHIBITING WAS WITHIN A
24 MONTH OR SO. THAT THE PATIENT'S PERCEPTION OF THE A month. Delirium?
25 ENVIRONMENT WAS ALTERED. THAT THERE WAS EVIDENCE THAT SHE
2220
1 DID NOT UNDERSTAND WHERE SHE WAS OR WHAT WAS GOING ON. THE
2 PATIENT DID NOT EXHIBIT ANY HALLUCINATIONS OR DELUSIONS THAT
3 I COULD DETECT. THE PATIENT HAD PSYCHOMOTOR ACTIVITY THAT
4 WAS BOTH AGITATED AND WITHDRAWN DURING THE COURSE OF THE
5 SHORT TIME SHE WAS THERE. SHE WAS QUITE COGNITIVELY
6 IMPAIRED. DR. WEITZEL'S OWN NOTE INDICATES THAT SHE WAS
7 QUITE CONFUSED AND DISORIENTED.
8 THE PATIENT HAD, BY MY ESTIMATION, AT LEAST ONE
9 PHYSICAL CAUSE OF THE CHANGE IN HER MENTAL ACUITY AND THAT
10 WAS MEDICATIONS. THE PATIENT SHOWED LABILITY OF MOOD; THAT
11 IS TO SAY, THAT SHE WAS AT TIMES COOPERATIVE AND AT TIMES
12 VERY ANGRY AND ANXIOUS AND REPETITIVE, BUT THERE WERE
13 PERIODS OF TIME WHEN SHE WAS CALM. AND THEN, FINALLY, SHE
14 SHOWED VARIABILITY THAT OVER THE COURSE OF A FEW HOURS HER
15 SYMPTOMS VARIED.
16 THOSE ARE ALL FINDINGS OF DELIRIUM AND SHE DEFINITELY
17 MEETS CRITERIA BY D.S.M. STANDARDS. She also met criteria for severe dementia.
18 Q. WHAT CAUSES DELIRIUM?
19 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
20 RELEVANCY.
21 THE COURT: SUSTAINED.
22 Q. (BY MS. BARLOW) IS THERE ANYTHING THAT YOU SAW IN THE
23 RECORDS OF ELLEN ANDERSON THAT WOULD DEMONSTRATE A CAUSE OF
24 DELIRIUM IN HER IN DAVIS NORTH?
25 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
2221
1 RELEVANCY.
2 THE COURT: OKAY. CAN WE GO ON TO SOMETHING ELSE
3 AND WE CAN ADDRESS THIS AT A BREAK WHEN THE JURY'S OUT?
4 MS. BARLOW: EXCUSE ME, YOUR HONOR. I HAVE TO
5 WRITE MYSELF A NOTE. MY MEMORY'S GETTING WORSE.
6 THE COURT: OKAY. I'VE WRITTEN ONE.
7 Q. (BY MS. BARLOW) YOU TESTIFIED EARLIER THAT YOU DID NOT
8 THINK -- WELL, MAYBE I BETTER NOT SAY THAT BECAUSE I MIGHT
9 MISPHRASE IT.
10 WAS -- WAS WHAT WAS DONE AT DAVIS NORTH HOSPITAL FOR
11 ELLEN ANDERSON APPROPRIATE?
12 A. NO.
13 Q. WHY WAS IT NOT APPROPRIATE?
14 MR. STIRBA: WELL, IT'S VAGUE AND AMBIGUOUS, YOUR
15 HONOR. I'M NOT SURE --
16 THE COURT: ARE YOU -- ARE YOU ASKING DR. WEITZEL'S
17 TREATMENT? I MEAN, YOU SAID WHAT WAS DONE AT THE HOSPITAL.
18 MS. BARLOW: WELL, THAT WAS THE QUESTION THAT WE
19 DISCUSSED PHRASING AND I HAD PHRASED IT THAT WAY.
20 THE COURT: WELL, I THINK WHAT WE'RE INTERESTED IN
21 IS DR. WEITZEL'S CARE OF THIS PATIENT.
22 MS. BARLOW: I WILL DO THAT.
23 Q. (BY MS. BARLOW) DID YOU REVIEW WHAT DR. WEITZEL DID
24 FOR ELLEN ANDERSON AT DAVIS NORTH HOSPITAL?
25 A. I DID.
2222
1 Q. WAS THAT -- WAS WHAT DR. WEITZEL DID APPROPRIATE
2 TREATMENT OF ELLEN ANDERSON?
3 A. NO.
4 Q. WHY WAS IT NOT?
5 A. THERE WAS FAILURE TO PERFORM AN ADEQUATE EVALUATION.
6 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
7 RELEVANCY AND -- YOU KNOW.
8 THE COURT: OKAY. THAT -- LET'S GO ON TO THE -- GO
9 AHEAD. GO ON. ASK ANOTHER QUESTION.
10 Q. (BY MS. BARLOW) BASED ON YOUR REVIEW OF THE RECORD,
11 DID YOU SEE ANY -- ANYTHING IN THE RECORDS INDICATING
12 WHETHER OR NOT DR. WEITZEL SAW ELLEN ANDERSON?
13 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR.
14 THAT'S NOT EXPERT TESTIMONY.
15 MS. BARLOW: IT'S FOUNDATIONAL, YOUR HONOR, FOR
16 GETTING INTO THE REST OF THE TESTIMONY.
17 THE COURT: OKAY. HOLD ON JUST A SECOND. OKAY.
18 WHY DON'T YOU GO ON TO SOMETHING ELSE. WE'VE GOT TWO OR
19 THREE THINGS WE'RE GOING TO NEED TO DISCUSS SO I'D JUST LIKE
20 TO NOT KEEP THE JURY GOING IN AND OUT.
21 Q. (BY MS. BARLOW) DID DR. WEITZEL WRITE ANY ORDER --
22 EXCUSE ME. I WON'T SAY WRITE.
23 DID DR. WEITZEL GIVE ANY ORDERS FOR THE TREATMENT OF
24 ELLEN ANDERSON?
25 A. YES.
2223
1 Q. WHAT ORDERS DID HE GIVE?
2 A. FROM THE DOCUMENTS ENTERED INTO EVIDENCE, THERE ARE
3 ADMISSION ORDERS THAT ARE SIGNED APPARENTLY BY DR. WEITZEL
4 AND ARE STANDARD ADMITTING ORDERS THAT ARE REQUIRED FOR
5 PLACING A PATIENT IN THE HOSPITAL.
6 Q. AND WHAT DID DR. WEITZEL ORDER FOR ELLEN ANDERSON?
7 A. HE ORDERED A ACTIVITY. HE WANTED HER UP IN A
8 WHEELCHAIR. HE ORDERED HER A DIET, WHICH WAS MECHANICAL
9 SOFT WHICH MEANS SOFT ENOUGH TO CHEW WITH DENTURES. HE
10 ORDERED LABORATORIES, A BLOOD COUNT, CHEMISTRY PROFILE,
11 R.P.R., WHICH IS A TEST FOR SYPHILIS, THYROID FUNCTION
12 TESTS, A URINALYSIS AND A CULTURE OF THAT URINE, AN E.K.G.
13 AND A CHEST X-RAY.
14 HE ORDERED SOMETHING CALLED THE AIMES WHICH IS A TEST
15 OF THE PATIENT'S EXHIBITION OF SYMPTOMS OF DRUG USE RELATIVE
16 TO ANTIPSYCHOTIC DRUGS. IT BASICALLY IS A TEST ADMINISTERED
17 TO MAKE SURE THE PATIENT ISN'T SUFFERING AN ADVERSE EFFECT
18 OF THE USE OF THE DRUG, AND IT'S SCORED SO IT CAN BE
19 MEASURED OVER TIME IF THE PATIENT'S ADMINISTERED THE DRUG
20 AND THE DEVELOPS SUCH SYMPTOMS.
21 HE ORDERED HER TO BE EVALUATED BY AN OCCUPATIONAL
22 THERAPIST. SPECIAL PRECAUTIONS ARE SOMETHING I'M NOT AWARE
23 OF WHAT THOSE ARE, BUT THEY WERE ORDERED 15 MINUTE CHECKS
24 FOR 24 HOURS. HE WANTED --
25 Q. WHAT -- EXCUSE ME. WHAT KIND OF CHECKS WOULD THOSE BE?
2224
1 DO YOU KNOW?
2 A. I'M -- I'M NOT AWARE OF WHAT THOSE CHECKS WOULD BE.
3 VITAL SIGNS WERE ORDERED TWICE A DAY. PATIENT WAS TO BE
4 WEIGHED WEEKLY. SHE DID NOT HAVE ANY ALLERGIES. THE
5 MEDICATIONS HE ORDERED WERE AMITRIPTYLINE, 25 MILLIGRAMS AT
6 BEDTIME. LASIX, WHICH IS A DIURETIC, 40 MILLIGRAMS EACH
7 DAY. NITROGLYCERIN, MEDICATION PLACED UNDER THE TONGUE TO
8 DILATE THE ARTERIES, FOR CORONARY ARTERY DISEASE. AMBIEN,
9 WHICH IS A BENZODIAZEPINE OR A DRUG LIKE VALIUM, SAME CLASS,
10 USED FOR SLEEP, FIVE MILLIGRAMS. DULCOLAX, FIVE MILLIGRAMS
11 BY MOUTH, IT'S A STIMULANT, LAXATIVE. TRAZODONE, AN
12 ANTIDEPRESSANT, 150 MILLIGRAMS AT BEDTIME. TYLENOL FOR PAIN
13 RELIEF, TWO TABS EVERY FOUR HOURS. MYLANTA FOR STOMACH
14 UPSET. MILK OF MAGNESIA FOR CONSTIPATION. AND THEN
15 MORPHINE SULFATE 10 MILLIGRAMS I.M. NOW FOR PAIN. THAT'S
16 THE WAY IT'S STATED. SIGNED DR. WEITZEL.
17 Q. IN MEDICAL PRACTICE DO PHYSICIANS EVER TELEPHONE IN
18 ORDERS?
19 A. YES, WE DO.
20 Q. WHAT -- HOW IS IT CHARTED IF A TELEPHONE ORDER IS GIVEN?
21 MR. STIRBA: OBJECT. RELEVANCY.
22 MS. BARLOW: YOUR HONOR, I -- I THINK IT EXPLAINS
23 THIS --
24 THE COURT: WELL, IS HE -- I GUESS YOU NEED TO LAY
25 A FOUNDATION IF HE KNOWS HOW IT WAS CHARTED IN THE DAVIS
2225
1 RECORDS VERSUS HIS OWN EXPERIENCE.
2 Q. (BY MS. BARLOW) IN YOUR REVIEW OF THE RECORDS, DO YOU
3 KNOW HOW A TELEPHONE ORDER LIKE THAT WAS CHARTED IN THESE
4 RECORDS?
5 A. LOOKING AT THIS RECORD OF 12/29/95, THE BOTTOM NOTATION
6 IS T.O., DR. WEITZEL. THAT ABBREVIATION T.O. IS INTERPRETED
7 AS TELEPHONE ORDER. THEN THERE'S A SIGNATURE OF A NURSE AND
8 THEN IT SAYS, IT'S NOTED. THE NURSE AGAIN SIGNS IT, DATES
9 AND TIMES THE NOTE.
10 Q. AND WHAT DOES IT MEAN TO BE NOTED?
11 A. THE NURSE FIRST TAKES IT DOWN, AND THEN HAVING
12 TRANSCRIBED IT, TELEPHONE ORDER DR. WEITZEL, SIGNS HER OR
13 HIS INITIALS TO THAT TELEPHONE ORDER.
14 THEN HAVING NOTED IT MEANS THAT THOSE ACTIONS HAVE BEEN
15 PUT IN PLACE. SO THE DIET'S BEEN ORDERED, THE MEDICATIONS
16 HAVE BEEN PLACED ON A RECORD TO SHOW THAT THEY NEED TO BE
17 ADMINISTERED, THEY'VE BEEN ORDERED FROM THE PHARMACY. IT
18 MEANS THAT THE -- THE NURSES HAVE DONE THEIR JOB RELATIVE TO
19 COMPLETING THESE ORDERS.
20 Q. LET'S LOOK AT THE MEDICATIONS. ARE ANY OF THESE ORDERED
21 P.R.N., OR AS NEEDED?
22 A. THE NITROGLYCERIN IS ORDERED AS NEEDED.
23 Q. AND -- AND WHAT'S NITROGLYCERIN USUALLY GIVEN FOR?
24 A. NITROGLYCERIN IS A SMALL TABLET USED TO OPEN ARTERIES.
25 IT DILATES THE ARTERIES. IT CAUSES THEM TO RELAX. AND IT'S
2226
1 USED FOR ANGINA OR HEART PAIN CAUSED BY NARROWING OF THE
2 CORONARY ARTERIES.
3 Q. SO IF THERE'S NO PAIN, WOULD YOU GIVE NITROGLYCERIN TO
4 ANYONE?
5 A. NO.
6 Q. WHAT ABOUT -- ARE ANY OF THE REST OF THEM AS NEEDED?
7 A. AMBIEN, THE SLEEPING PILL, IS AS NEEDED FOR SLEEP.
8 Q. ANY MORE?
9 A. THE TYLENOL IS AS NEEDED FOR PAIN. THE MYLANTA IS AS
10 NEEDED FOR DYSPEPSIA OR STOMACH UPSET. THE MILK OF MAGNESIA
11 IS AS NEEDED FOR CONSTIPATION.
12 Q. AND THEN YOU READ THAT THE MORPHINE SULFATE WAS NOTED AS
13 WHAT?
14 MR. STIRBA: YOUR HONOR, ASKED AND ANSWERED. IT'S
15 RIGHT THERE.
16 THE COURT: JUST GO AHEAD.
17 Q. (BY MS. BARLOW) LOOKING AT THAT LIST OF DRUGS --
18 EXCUSE ME -- MEDICATIONS, DO ANY OF THEM HAVE ANY
19 RELATIONSHIP TO DELIRIUM?
20 A. YES.
21 Q. AND WHICH DRUGS HAVE RELATIONSHIP TO DELIRIUM?
22 A. THE AMITRIPTYLINE, THE LASIX, THE AMBIEN, THE TRAZODONE,
23 THE MORPHINE.
24 Q. LET'S START WITH THE AMITRIPTYLINE. WHAT -- WHAT
25 RELATIONSHIP DOES THAT HAVE TO DELIRIUM?
2227
1 A. AMITRIPTYLINE IS AN ANTIDEPRESSANT MEDICATION, AND
2 MRS. ANDERSON HAD BEEN RECEIVING THAT AS -- AT THE NURSING
3 FACILITY. THE MEDICATION IS CALLED A TRICYCLIC
4 ANTIDEPRESSANT. MEDICATIONS OF -- OF THAT TYPE ARE
5 PRESCRIBED TO TREAT DEPRESSION. AND THEN ANOTHER USE IS TO
6 INDUCE SLEEP BECAUSE THEY'RE QUITE SEDATING.
7 Q. WHAT DO YOU MEAN BY SEDATING?
8 A. SEDATION MEANS THAT YOU FEEL SLEEPY. SO A SEDATING DRUG
9 IS ONE THAT INDUCES SLEEP OR MAKES THE PATIENT SLEEPY.
10 Q. WITH AMITRIPTYLINE, IS THAT AN EFFECT IN THE BRAIN? IS
11 IT IN ANY OTHER SYSTEM IN THE BODY?
12 A. THE AMITRIPTYLINE IS ACTIVE IN THE BRAIN AND HAS
13 ACTIVITIES ON OTHER ORGANS AS WELL. THE ACTION OF DRUGS
14 LIKE AMITRIPTYLINE TO PRODUCE THE EFFECT YOU WANT THEM TO
15 HAVE MEANS THAT THEY HAVE AN EFFECT ON BRAIN CHEMISTRY. AND
16 THE BODY CONSERVES THE MECHANISMS THAT IT USES TO
17 COMMUNICATE BETWEEN CELLS, SO IF A MESSAGE NEEDS TO BE SENT
18 FROM ONE CELL TO ANOTHER, AND THAT MESSAGE IS THAT YOU'RE
19 AWAKE OR THAT THERE'S A MEMORY YOU NEED TO FORM, THEN THAT
20 MESSENGER IS TRANSMITTED FROM ONE CELL TO ANOTHER IN THE
21 BRAIN.
22 THE BODY DOESN'T JUST USE THE MESSENGER THERE THOUGH.
23 THAT SAME MESSENGER, LET'S SAY IT'S ACETYLCHOLINE, THAT
24 TELLS THE BRAIN YOU'RE AWAKE OR YOU NEED TO FORM A MEMORY IS
25 ALSO USED TO STIMULATE MUSCLES TO CONTRACT. IT'S ALSO USED
2228
1 TO STIMULATE YOUR GUT TO CONTRACT AND EVACUATE. IT'S USED
2 TO EVACUATE YOUR BLADDER. IT'S USED TO CONTROL THE
3 SECRETIONS OF YOUR MOUTH AND IT'S USED TO CONTROL WHETHER
4 YOUR PUPILS DILATE OR CONSTRICT.
5 SO THE BODY KNOWS THAT WHEN IT SENDS A MESSAGE, OR IT
6 BLOCKS THAT MESSAGE, THAT IT'S -- THAT IT'S DOING IT FOR A
7 SPECIFIC EFFECT. BUT WHEN YOU ADMINISTER A MEDICATION, THAT
8 EFFECT IS NOT SPECIFIC TO THAT SINGLE SITE OR THAT SINGLE
9 ORGAN.
10 AND IN THE CASE OF AMITRIPTYLINE IT'S WHAT WE CALL A
11 POTENT ANTICHOLINERGIC. SO IF ACETYLCHOLINE IS A
12 TRANSMITTER YOUR BRAIN USES TO SAY I'M AWAKE OR I NEED TO
13 FORM A MEMORY, AND THIS MEDICATION BLOCKS THAT, THEN YOU'RE
14 GOING TO BE SEDATED OR YOU'RE GOING TO BE CONFUSED BECAUSE
15 YOU CAN'T FORM MEMORIES. UNFORTUNATELY, YOU ALSO MAY NOT BE
16 ABLE TO HAVE A BOWEL MOVEMENT, YOU MAY NOT BE ABLE TO
17 URINATE, YOU MAY NOT BE ABLE TO FORM SALIVA, AND YOU MAY NOT
18 BE ABLE TO SEE ACCURATELY.
19 Q. YOU SAID THE LASIX ALSO HAS AN EFFECT ON DELIRIUM. IN
20 WHAT WAY?
21 A. THE BEST STUDY OF DELIRIUM THAT'S BEEN PUBLISHED WAS BY
22 A DR. FRANCIS IN THE LATE 1980'S. DR. FRANCIS OBSERVED 225
23 HOSPITAL PATIENTS IN PITTSBURGH, AND THOSE 225 HOSPITAL
24 PATIENTS, A GOOD FRACTION OF THEM DEVELOPED DELIRIUM. AND
25 WHEN HE EXAMINED WHY THEY DEVELOPED DELIRIUM, ELECTROLYTE
2229
1 DISTURBANCES; THAT IS, THE COMPOSITION OF THE -- OF THE IONS
2 IN YOUR BLOOD WAS A COMMON PROBLEM, OR BEING DEHYDRATED WAS
3 A COMMON PROBLEM. THE LASIX IS A DIURETIC. A DIURETIC IS
4 MEANT TO CAUSE THE BODY TO WASTE OR EXCRETE SODIUM AND WATER
5 SO THAT THE FLUIDS THAT HAVE ACCUMULATED CAN BE REMOVED. IT
6 CARRIES WITH IT THE RISK OF CAUSING DEHYDRATION OR
7 ELECTROLYTE ABNORMALITIES, A LOW BLOOD SODIUM, A LOW BLOOD
8 POTASSIUM OR KIDNEY FAILURE.
9 Q. THAT HAS AN EFFECT ON DELIRIUM?
10 A. IF A PATIENT'S ELECTROLYTES ARE DISTURBED, IF THE
11 CHEMICAL COMPOSITION OF YOUR BLOOD HAS BEEN ALTERED, THEN
12 THE ABILITY TO THINK, THE ABILITY TO INTERACT, THE ABILITY
13 TO HOLD CONVERSATION OR TO CARE FOR YOURSELF OR THE ABILITY
14 TO MAINTAIN ALERTNESS OR INTERACT WITH THE ENVIRONMENT ARE
15 ALL DISTURBED. THAT IS HOW IT CAN INTERACT. AND BECAUSE IT
16 CAN CAUSE KIDNEY FAILURE IF THE PATIENT BECOMES DEHYDRATED,
17 THE EFFECTS OF THE ACCUMULATION OF TOXIC MATERIALS FROM THE
18 KIDNEY THAT IT CAN'T EXCRETE CAN AFFECT THE LEVEL OF YOUR
19 CONSCIOUSNESS, CAUSE THE CONFUSION AND LEAD TO DELIRIUM.
20 AND THEN FINALLY, IF YOU'VE BEEN ADMINISTERED TOO MUCH
21 AND YOUR BLOOD PRESSURE IS LOW, THEN THERE'S NOT ENOUGH
22 BLOOD FLOW TO THE BRAIN. THE BRAIN'S STARVED FOR ENOUGH
23 BLOOD AND OXYGEN, THEN IT CAN'T INTERACT AND RESPOND
24 APPROPRIATELY.
25 Q. AND I THINK YOU MENTIONED AMBIEN AS HAVING AN EFFECT ON
2230
1 DELIRIUM.
2 A. AMBIEN IS A BENZODIAZEPINE, A VALIUM-LIKE DRUG. NOT AS
3 STRONG AS VALIUM, SAFER THAN VALIUM FOR USE IN ADULTS AND
4 OLDER PEOPLE. FOR SLEEP IT'S -- IT'S A DRUG THAT INTERACTS
5 WITH WHAT ARE CALLED GABBA GABBA GAMMA AMINOBUTYRIC ACID
6 RECEPTORS IN THE BRAIN.
7 Q. MAYBE YOU'RE GETTING A LITTLE TOO COMPLEX FOR US.
8 THE COURT: YEAH, I THINK IT MIGHT HELP --
9 MS. BARLOW: ESPECIALLY FOR THE COURT REPORTER.
10 THE COURT: -- IF WE -- IF YOU COULD JUST MAYBE
11 JUST ANSWER THE QUESTION, WHAT EFFECT DOES THAT HAVE AS
12 OPPOSED TO GIVE US AN EXPLANATION.
13 THE WITNESS: IT'S -- IT'S A SLEEPING PILL -- OKAY.
14 GO AHEAD.
15 Q. (BY MS. BARLOW) YEAH. I -- I THINK YOU HAVE A
16 TENDENCY TO TEACH US HERE LIKE SOME OF YOUR STUDENTS. AND
17 SO IF WE CAN -- SO IT'S A SLEEPING PILL, YOU SAY?
18 A. IT'S A SLEEPING PILL THAT CAUSES SEDATION.
19 Q. OKAY. AND HOW DOES THAT AFFECT DELIRIUM?
20 A. WELL, AGAIN, IT INTERACTS AT YET ANOTHER RECEPTOR, THEN
21 THE AMITRIPTYLINE, THE ELAVIL, AND THEREBY CAUSES THE BRAIN
22 TO BE LESS ACTIVE. IT CAUSES SEDATION. THE BRAIN IS ACTIVE
23 AND ELECTRICALLY ALERT. IF THIS MEDICINE IS ADMINISTERED IT
24 REDUCES ELECTRICAL ACTIVITY, IT REDUCES THE LEVEL OF
25 CONSCIOUSNESS, CAUSES YOU TO FEEL SLEEPY. YOU CAN FALL
2231
1 ASLEEP EASIER.
2 Q. THEN I THINK YOU SAID TRAZODONE WAS THE NEXT ONE THAT
3 HAS AN EFFECT ON DELIRIUM?
4 A. YEAH. TRAZODONE IS AN ANTIDEPRESSANT MEDICATION FOR
5 WHICH THE EXACT MECHANISM BY WHICH IT WORKS IS UNKNOWN.
6 IT'S CALLED AN ATYPICAL ANTIDEPRESSANT, DIFFERENT FROM THE
7 AMITRIPTYLINE. ITS EFFECT IN CAUSING CONFUSION OR DELIRIUM
8 IS THAT IT IS -- IT IS POTENTLY SEDATING AND CAUSES
9 CONFUSION, COMMONLY.
10 Q. THEN I BELIEVE YOU ALSO SAID THE MORPHINE CAN HAVE SOME
11 IMPACT ON DELIRIUM?
12 A. MORPHINE IS A PAIN RELIEVER OF THE NARCOTIC CLASS. IT'S
13 AMONG THE MOST POTENT OF THE PAIN RELIEVERS THAT WE HAVE
14 AVAILABLE. IT INTERACTS WITH WHAT ARE CALLED OPIATE
15 RECEPTORS. THERE ARE OPIATE RECEPTORS THROUGHOUT THE BODY.
16 THE BRAIN IS FULL OF THEM, PARTICULARLY THE SPINAL CHORD IN
17 THE BASE OF THE BRAIN WHERE PAIN IS SENSED. WHEN MORPHINE
18 INTERACTS WITH THE OPIATE RECEPTORS IT REDUCES THE RESPONSE
19 OF THOSE CELLS SO THAT THE SENSATION OF PAIN IS MASKED. IT
20 PREVENTS THE CELLS FROM TELLING THE BODY, I'M EXPERIENCING
21 PAIN.
22 IT HAS, LIKE ALL DRUGS OF ITS CLASS AND TYPE, EFFECTS
23 ON OTHER PARTS OF THE BRAIN THAN JUST ON PAIN AND IT CAUSES
24 SEDATION. IT ACTUALLY INTERACTS WITH RECEPTORS IN THE BASE
25 OF THE BRAIN THAT CONTROL BREATHING AND HEART RATE AND BLOOD
2232
1 PRESSURE, AND CAN, IF GIVEN INAPPROPRIATELY, CAUSE THE
2 STOPPAGE OF BREATHING ABRUPTLY AND COMPLETELY.
3 Q. GIVEN THE INTERACTION OF THOSE DRUGS THAT -- OR THOSE
4 MEDICATIONS, DRUGS THAT YOU LISTED WITH DELIRIUM --
5 MR. STIRBA: YOUR HONOR, MAY WE HAVE SOME MORE
6 FOUNDATION AS TO WHETHER OR NOT THESE DRUGS WERE EVEN GIVEN
7 TO THIS PATIENT?
8 THE COURT: WELL, FIRST OF ALL, I THINK WE'VE BEEN
9 GOING FOR QUITE A WHILE, LADIES AND GENTLEMEN. I THINK
10 WE'LL TAKE OUR LAST MORNING BREAK. SO LET'S COME BACK --
11 I'LL ASK YOU TO COME BACK AT 11:15.
12 AND DURING THE TIME THAT YOU ARE OUT, REMEMBER IT'S
13 YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES ABOUT THIS CASE
14 OR TO CONVERSE WITH ANYONE ELSE ABOUT IT, OR EVEN TO ALLOW
15 ANYONE TO ADDRESS YOU ABOUT THE SUBJECT OF THIS TRIAL. IT'S
16 ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL YOU
17 HAVE THE CASE FINALLY SUBMITTED TO YOU.
18 SO IF YOU'LL COME BACK AT 11:15.
19 (WHEREUPON, THE JURY LEAVES THE COURTROOM.)
20 THE COURT: YOU MAY BE SEATED.
21 THE RECORD WILL REFLECT THAT THE JURY HAS LEFT THE
22 COURTROOM.
23 OKAY. LET'S JUST GO BACK TO SOME OF THESE ISSUES THAT
24 WE SAID WE WOULD ADDRESS AFTER THE JURY HAD BEEN OUT OF THE
25 COURTROOM. I THINK THE FIRST QUESTION WAS, YOU ASKED A
2233
1 QUESTION ABOUT DELIRIUM, WHAT CAUSED HER DELIRIUM. AND
2 THERE WAS A -- OKAY. WHAT WAS THE OBJECTION?
3 MR. STIRBA: RELEVANCY.
4 THE COURT: OKAY. WHAT DO YOU CLAIM IS THE
5 RELEVANCY OF THE CAUSE OF HER DELIRIUM? NOT THAT SHE HAD
6 IT, BUT WHETHER -- WHAT CAUSED IT.
7 MS. BARLOW: BECAUSE THE MEDICATIONS -- I'M NOT --
8 WELL, YEAH. MAYBE I DID ASK IT THAT WAY. THE MEDICATIONS
9 THAT SHE WAS GIVEN AT THE NURSING HOME AND THEN -- I MEAN,
10 THE MORPHINE WAS GIVEN HERE -- CAN CAUSE DELIRIUM. THAT ONE
11 OF THE MAIN CAUSES OF DELIRIUM IS WHAT'S CALLED MEDICATION
12 INTOXICATION.
13 THE COURT: OKAY. BUT --
14 MS. BARLOW: THEY'RE GETTING TOO MUCH OF WHATEVER
15 THE MEDICATION IS THAT'S SUPPOSED TO BE HELPING THEM.
16 THE COURT: WELL, HIS TESTIMONY IS THAT SHE HAD
17 DELIRIUM WHEN SHE ARRIVED?
18 MS. BARLOW: THAT -- YES, IF I CAN ASK THAT. I WAS
19 LIMITED -- I COULDN'T GET INTO IT.
20 THE COURT: OKAY. WELL, BUT IF IT -- WELL, IF THE
21 DELIRIUM -- I MEAN, WHAT CAUSED IT -- IF IT -- IF IT WAS
22 SOMETHING THAT WAS CAUSED BEFORE SHE GOT THERE --
23 MS. BARLOW: UH-HUH.
24 THE COURT: -- WHAT RELEVANCE IS THAT?
25 MS. BARLOW: WELL, SHE CAME IN WITH DELIRIUM.
2234
1 THE COURT: OKAY. WELL, HE'S TESTIFIED ABOUT THAT.
2 IT'S NOT -- I MEAN, WHAT -- WHAT IS THE RELEVANCE OF WHAT
3 CAUSED THE DELIRIUM?
4 MS. BARLOW: WELL, WHAT -- AND -- AND I THINK I WAS
5 TRYING TO GET IN WHAT CAN CAUSE DELIRIUM TO GET IN THE FACT
6 THAT -- THAT --
7 THE COURT: WELL, THE ACTION --
8 MS. BARLOW: -- THE MEDICATION OVERDOSE CAN CAUSE
9 IT. AND I SEE WHERE -- OKAY. MAYBE I CAN REPHRASE IT. I
10 THINK I UNDERSTAND WHAT THE COURT'S CONCERN IS BY THE
11 QUESTION THAT YOU JUST ASKED. PERHAPS THEN I CAN -- RATHER
12 THAN ASK ABOUT THE CAUSE OF HER DELIRIUM, AND I GO STRAIGHT
13 TO THE TREATMENT OF THE DELIRIUM THAT SHE WAS EXHIBITING --
14 THE COURT: WELL, I THINK WHAT -- WHAT YOU COULD --
15 I MEAN, WHAT WE'VE BEEN SAYING IS THAT -- OKAY. HOW DID
16 DR. WEITZEL TREAT THIS PATIENT? WAS IT APPROPRIATE OR NOT
17 APPROPRIATE? HE CAN SAY IT'S NOT APPROPRIATE. AND THEN HIS
18 FIRST QUESTION (SIC) WAS BECAUSE HE DIDN'T DIAGNOSE IT.
19 MS. BARLOW: RIGHT.
20 THE COURT: AND THEN WE GET RIGHT BACK TO
21 NEGLIGENCE.
22 MS. BARLOW: WELL, YOU KNOW, AND I -- I WASN'T -- I
23 WASN'T INTENDING TO GET THAT. THE QUESTION MAY HAVE BEEN
24 INARTFUL. YES.
25 THE COURT: WELL, MAYBE YOU MIGHT WANT TO TALK TO
2235
1 HIM AT A BREAK OR SOMETHING WHEN WE TAKE A BREAK BECAUSE
2 THAT'S -- IF -- IF THOSE ANSWERS KEEP COMING OUT -- YOU
3 KNOW, YOU DIDN'T INTEND IT, BUT THEN HE ASKS -- HE KEEPS
4 COMING OUT WITH A DIAGNOSE -- YOU KNOW, FAILURE TO DIAGNOSE,
5 FAILURE TO DIAGNOSE, FAILURE TO DIAGNOSE DELIRIUM. THAT IS
6 A PROBLEM. THAT'S WHAT I JUST RULED ABOUT SAYING THAT
7 THAT'S NEGLIGENCE, AND FAILURE TO DIAGNOSE IS NOT GOING TO
8 COME IN.
9 IF HE WANTS TO SAY HE DIDN'T -- HE DIDN'T SEE THAT AND
10 HE TREATED IT THIS WAY, THE APPROPRIATE TREATMENT WAS THIS.
11 THAT'S ALL FINE. AND HE DIDN'T DO -- AND GIVING THEM THIS
12 WASN'T APPROPRIATE, YOU KNOW, WHATEVER IS FINE. BUT NOT HE
13 FAILED TO DIAGNOSE, FAILED TO DIAGNOSE.
14 MS. BARLOW: FINE.
15 THE COURT: AND THEN IS THIS -- AND MAYBE JUST LET
16 ME KNOW. IS THIS WITNESS GOING TO TESTIFY REGARDING THE
17 DEATH OF THESE PATIENTS? THAT --
18 MS. BARLOW: YES.
19 THE COURT: -- GIVING THE MEDICATION AND THE
20 TREATMENT THAT DR. WEITZEL DID GIVE?
21 MS. BARLOW: YES.
22 THE COURT: OKAY.
23 MS. BARLOW: BUT THIS IS PART OF IT.
24 THE COURT: OKAY.
25 MS. BARLOW: I MEAN, THE FAILURE TO NOT DIAGNOSE,
2236
1 BUT -- BUT THE GIVING OF THESE DRUGS, THE FAILURE TO
2 WITHHOLD THESE DRUGS WHICH COULD BE CAUSING THE DELIRIUM,
3 LEADS TO AND IS PART OF CAUSING THE DEATH OF THESE PEOPLE.
4 AND THAT'S THE RELEVANCE.
5 THE COURT: WELL, OKAY. MR. STIRBA?
6 MR. STIRBA: YEAH, I -- NO. I HAVE A PROBLEM WITH
7 THAT. WHY CAN'T WE JUST SAY -- I THOUGHT WE HAD AN
8 AGREEMENT. HE SAYS, IN MY OPINION SHE HAS DELIRIUM. OKAY,
9 FINE. HE PRESCRIBES X OR ORDERS X. WOULD YOU HAVE
10 PRESCRIBED THAT FOR DELIRIUM? NO. WHY NOT? BECAUSE IT'S
11 NOT THE, YOU KNOW, THE CORRECT DRUG OR WHATEVER YOU WANT TO
12 SAY.
13 BUT THIS FAILURE TO -- YOU KNOW, THERE'S GOING TO BE A
14 MOTION HERE. I -- I JUST HELD BACK BECAUSE I HEARD IT AND I
15 KNEW EXACTLY WHAT HAPPENED. BUT, I MEAN, WE'RE NOT GOING TO
16 GET INTO THIS FAILURE TO DO THIS, FAILURE TO DO THAT.
17 THAT'S ALL NEGLIGENCE. HE CAN DO IT AFFIRMATIVELY AND YOU
18 CAN GET THE SAME RESULT, BUT CORRECTLY. THAT IS, DELIRIUM,
19 OKAY. HERE'S THE TREATMENT. WOULD THIS BE TREATMENT FOR
20 DELIRIUM AS YOU'VE DIAGNOSED IT? NO. WHY NOT? WELL,
21 BECAUSE THIS, THAT, AND THE OTHER. THAT TO ME IS QUITE A
22 BIT DIFFERENT THAN SAYING FAILURE TO DO THIS, FAILURE TO DO
23 THAT.
24 THE COURT: AND MY UNDERSTANDING -- AND IF I DIDN'T
25 EXPLAIN IT -- MY UNDERSTANDING WAS WHAT WE WERE GOING TO DO
2237
1 IS SAY, WHAT THIS WITNESS -- WHAT THIS DOCTOR DID, WHETHER
2 THAT WAS APPROPRIATE; AND IF IT WASN'T APPROPRIATE, WHAT
3 SHOULD HAVE BEEN DONE? ISN'T THAT -- IS THAT WHAT YOU'VE
4 JUST DESCRIBED?
5 MR. STIRBA: GENERALLY, YES.
6 THE COURT: OKAY.
7 MS. BARLOW: AND I APOLOGIZE, YOUR HONOR. I
8 THOUGHT THAT'S WHAT I WAS DOING. CLEARLY THAT ISN'T WHAT
9 I'M DOING. I'LL -- I'LL TRY TO REFOCUS THE WAY I DO IT.
10 THE COURT: OKAY. WELL THEN LET'S -- OKAY. ALL
11 RIGHT. WELL, WE'LL -- LET'S TAKE A BREAK TO 11:15 AND THEN
12 WE'LL COME BACK AT THAT POINT.
13 (WHEREUPON, COURT'S IN RECESS.)
14 THE COURT: PLEASE BE SEATED.
15 THE RECORD WILL REFLECT THAT THE JURY HAS RETURNED.
16 IF YOU'D LIKE TO CONTINUE, MISS BARLOW.
17 MS. BARLOW: THANK YOU, YOUR HONOR.
18 Q. (BY MS. BARLOW) DR. FEHLAUER, YOU TESTIFIED ABOUT
19 WHAT'S CALLED THE D.S.M. AND WHAT DOES THAT STAND FOR?
20 A. THE DIAGNOSTIC AND STATISTICAL MANUAL.
21 Q. WAS THERE ONE IN EFFECT -- WELL, LET'S SAY IN USE IN
22 1995?
23 A. YES. THE D.S.M.-IV WAS IN USE.
24 Q. IS THAT GENERALLY ACCEPTED BY THE MEDICAL COMMUNITY?
25 A. YES.
2238
1 Q. DOES IT INCLUDE ANYTHING ABOUT PROPER -- OR APPROPRIATE
2 TREATMENT FOR THE DISEASES OR ILLNESSES THAT ARE LISTED?
3 A. IT'S MEANT MOSTLY AS A -- AS A DIAGNOSIS AID, BUT IT
4 DOES TALK ABOUT IN THE DISCUSSION SECTIONS MATERIALS
5 RELEVANT TO THE DIAGNOSIS THAT IT'S REFERRING TO.
6 Q. AND WHAT ABOUT TREATMENT?
7 A. TREATMENT IS -- IS NOT PART OF THIS STATISTICAL MANUAL.
8 Q. THANK YOU. CAN THE ACTIONS OF A PHYSICIAN CAUSE DEATH?
9 A. YES.
10 Q. CAN THE INACTIONS OF A PHYSICIAN CAUSE DEATH?
11 MR. STIRBA: YOUR HONOR, RELEVANCY. IT'S AN
12 IMPROPER HYPOTHETICAL.
13 THE COURT: SUSTAINED.
14 Q. (BY MS. BARLOW) YOU WENT THROUGH THE LIST OF
15 MEDICATIONS THAT WERE ORDERED FOR ELLEN ANDERSON?
16 A. YES.
17 Q. HAVE YOU LOOKED TO SEE WHICH MEDICATIONS WERE ACTUALLY
18 GIVEN?
19 A. YES, I HAVE.
20 Q. AND WHICH MEDICATIONS WERE ACTUALLY GIVEN TO ELLEN
21 ANDERSON?
22 A. FROM THE HOSPITAL RECORDS ENTERED INTO EVIDENCE, THE
23 MEDICATIONS ACTUALLY DOCUMENTED AS ADMINISTERED IS MORPHINE
24 SULFATE, 10 MILLIGRAMS I.M. NOW FOR PAIN, 12/29 AT 1930.
25 AND MORPHINE SULFATE 10 MILLIGRAMS I TIMES ONE -- I'M
2239
1 ASSUMING I.M. -- NOW FOR PAIN 12/30, 0330 IN THE MORNING.
2 Q. WHEN YOU SAY 12/30, THAT'S NOT THE TIME. THAT'S THE
3 DATE?
4 A. THAT'S THE DATE, DECEMBER 30.
5 Q. 30TH OF DECEMBER. OKAY. WERE THOSE MEDICATIONS
6 APPROPRIATE FOR THIS PATIENT?
7 A. NO.
8 Q. WHY WERE THEY NOT?
9 A. THERE ARE A HOST OF REASONS.
10 Q. FIRST ONE?
11 A. THERE IS NO EVIDENCE FROM THE RECORD THAT THE PATIENT
12 HAD A PAINFUL CONDITION REQUIRING MORPHINE.
13 Q. WHAT'S -- WHAT'S ANOTHER REASON?
14 A. THE DOSE OF THE MORPHINE WAS AT LEAST TWO TO FOUR TIMES
15 HIGHER THAN THE USUAL DOSE OF MORPHINE FOR ADMINISTRATION TO
16 AN OLDER PERSON AS THE FIRST DOSE.
17 Q. ANY OTHER REASONS?
18 A. THE PATIENT DIDN'T EXHIBIT ANY PAIN.
19 Q. OKAY. YOU'VE MENTIONED THAT ONE AND YOU'VE MENTIONED
20 DOSAGE. YOU SAID A HOST OF REASONS. WERE THERE ANY OTHER
21 REASONS? I GUESS YES OR NO IS --
22 A. YES. THE MORPHINE COULD CONTRIBUTE TO FURTHER
23 CONFUSION, SEDATION, WHICH WOULD HAVE BEEN INAPPROPRIATE FOR
24 THIS PATIENT.
25 MS. BARLOW: IF I MAY HAVE ANOTHER EXHIBIT MARKED,
2240
1 YOUR HONOR. YOUR HONOR, EXCUSE ME.
2 I'M SORRY, PETER. THAT'S NOT THE ONE I WANT TO USE
3 RIGHT NOW. THIS IS THE ONE. THEY BOTH KIND OF START OUT
4 THE SAME.
5 SO IT'S STATE'S EXHIBIT 31 IS THE ONE I WAS GOING TO
6 HAVE YOU LOOK AT FIRST.
7 THE COURT: DID YOU WANT TO SHOW THAT TO THIS
8 WITNESS?
9 MS. BARLOW: AS SOON AS MR. STIRBA'S HAD A CHANCE
10 TO LOOK AT IT --
11 THE COURT: OKAY.
12 MS. BARLOW: -- I WILL, YOUR HONOR.
13 Q. (BY MS. BARLOW) DR. FEHLAUER, I'VE ASKED YOU TO
14 IDENTIFY THIS. THIS IS STATE'S EXHIBIT 31, I BELIEVE.
15 DON'T SHOW IT TO THE JURY YET UNTIL YOU'VE IDENTIFIED IT.
16 WHAT IS THIS?
17 A. THIS IS A DOCUMENT THAT I HAVE PREPARED IN PREPARATION
18 FOR TESTIMONY, THAT THE STATE HAS PUT INTO THIS FORM, THAT
19 DESCRIBES DRUGS, THE USUAL ADULT STARTING DOSE AND THE USUAL
20 ELDERLY STARTING DOSE.
21 Q. DOES THIS ACCURATELY REFLECT WHAT YOU'VE PUT TOGETHER
22 FOR THIS CASE?
23 A. YES.
24 Q. NOW, THE DRUGS THAT ARE LISTED, ARE THEY RELEVANT TO
25 THIS CASE? WELL, LET ME -- DON'T ASK -- LET ME NOT ASK IT
2241
1 THAT WAY. HOW DID YOU ARRIVE AT THE DRUGS THAT YOU'VE
2 LISTED ON HERE?
3 A. I ARRIVED AT THE DRUGS ON THIS TABLE BASED ON THE DRUGS
4 ADMINISTERED TO THE PATIENTS, THE FIVE DIFFERENT CASES.
5 MS. BARLOW: YOUR HONOR, I WOULD MOVE FOR ADMISSION
6 OF STATE'S EXHIBIT 31.
7 MR. STIRBA: MAY I VOIR DIRE, YOUR HONOR?
8 THE COURT: YES.
9 VOIR DIRE EXAMINATION
10 BY MR. STIRBA:
11 Q. DOCTOR, I NOTICE ON THE EXHIBIT THERE'S NO REFERENCE TO
12 A SOURCE FOR THAT INFORMATION. IS THERE A PARTICULAR SOURCE
13 THAT YOU'RE RELYING ON?
14 A. YES.
15 Q. AND WHAT SOURCE IS THAT?
16 A. TWO SOURCES. THE FIRST IS THE 1995 PHYSICIAN'S DESK
17 REFERENCE, COMMONLY CALLED THE P.D.R.; AND THE SECOND IS THE
18 1993 EDITION OF THE GERIATRIC DOSAGE HANDBOOK.
19 Q. WE ARE IN SYNC. AND DID YOU TAKE THE INFORMATION, FOR
20 EXAMPLE, OUT OF THE GERIATRIC DOSING HANDBOOK AND JUST TAKE
21 THAT INFORMATION AND TRANSPOSE IT DIRECTLY ONTO THAT
22 EXHIBIT?
23 A. YES.
24 Q. WITHOUT MAKING ANY CHANGES?
25 A. YES.
2242
1 Q. ALL RIGHT.
2 THE COURT: DID YOU HAVE ANY OBJECTION?
3 MR. STIRBA: I'D LIKE HIM TO TESTIFY AND THEN
4 PERHAPS THE FOUNDATION WILL BE LAID IN TERMS OF -- I MEAN,
5 HE HASN'T TESTIFIED AS TO THE SPECIFICS, YOUR HONOR.
6 THE COURT: OKAY. WHY DON'T YOU GO AHEAD.
7 DIRECT EXAMINATION, CONT'D
8 BY MS. BARLOW:
9 Q. FOR ELLEN ANDERSON YOU MENTIONED THAT -- OR YOU SAID
10 THAT SHE GOT MORPHINE SULFATE. WHAT, UNDER THE P.D.R., IS
11 AN APPROPRIATE STARTING DOSAGE AMOUNT FOR AN ADULT?
12 A. UNDER THE P.D.R. THERE IS NO SPECIFIC APPROPRIATE DOSE
13 FOR MORPHINE.
14 Q. HOW DID YOU ARRIVE AT 10 MILLIGRAM INTRAMUSCULAR EVERY
15 FOUR HOURS AS NEEDED?
16 A. I ARRIVED AT THAT USING THE GERIATRIC DOSAGE HANDBOOK.
17 THE REASON THAT THERE IS NOT AN ENTRY IN THE P.D.R. RELATIVE
18 TO DOSING MORPHINE INTRAMUSCULARLY IS THAT MORPHINE IS SUCH
19 AN OLD DRUG THAT THE COMPANIES THAT MAKE MORPHINE AREN'T
20 REQUIRED TO CREATE THAT PACKAGE INSERT THAT YOU GET.
21 WHENEVER YOU GET A DRUG FROM THE DOCTOR YOU GET THIS PACKAGE
22 INSERT. WELL, THOSE PACKAGE INSERTS ARE BOUND TOGETHER AND
23 INDEXED AND PUT INTO THE P.D.R. THAT'S WHAT THE P.D.R. IS.
24 IT'S JUST BASICALLY A COMPILATION OF ALL THE PACKAGE
25 INSERTS. THERE IS NO PACKAGE INSERTS FOR MORPHINE
2243
1 ADMINISTERED I.M. BY INJECTION. SO I USED THE DOSAGE
2 HANDBOOK AS THE REFERENCE MANUAL FOR THIS DOSE.
3 Q. AND DO YOU KNOW HOW THE DOSE OF 10 MILLIGRAMS WAS
4 ARRIVED AT FOR AN ADULT STARTING DOSE?
5 A. I DON'T HAVE A CLUE.
6 Q. IS IT GENERALLY ACCEPTED IN THE MEDICAL COMMUNITY THAT
7 THAT'S AN ADULT STARTING DOSE?
8 A. YES.
9 Q. THEN WE HAVE THE ELDERLY STARTING DOSE. HOW DID YOU
10 ARRIVE AT THAT?
11 A. THAT'S DERIVED FROM THE GERIATRIC DOSAGE HANDBOOK.
12 Q. HOW MUCH IS THE ELDERLY STARTING DOSE?
13 A. 2.5 MILLIGRAMS ADMINISTERED AT INTERVALS.
14 Q. AND IT SAYS EVERY FOUR TO SIX HOURS AS NEEDED; IS THAT
15 CORRECT?
16 A. YES.
17 Q. WHY IS THERE A DIFFERENCE BETWEEN THE ADULT STARTING
18 DOSE AND THE ELDERLY STARTING DOSE?
19 A. OLDER ADULTS ARE JUST -- ARE NOT JUST CHRONOLOGICALLY
20 DIFFERENT. I MEAN, A 40-YEAR-OLD MAN AND AN 80-YEAR-OLD MAN
21 ARE DIFFERENT PHYSIOLOGICALLY. THEY HAVE DIFFERENT
22 METABOLIC PROCESSES GOING ON IN THEIR BODIES. AND THE DOSE
23 HAS BEEN DETERMINED AND IS DIFFERENT FROM YOUNG ADULTS
24 BECAUSE OF THOSE PHYSIOLOGICAL DIFFERENCES.
25 MS. BARLOW: IF I MAY HAVE THIS MARKED. THIS IS
2244
1 NUMBER 32.
2 MAY I APPROACH, YOUR HONOR?
3 THE COURT: YES.
4 Q. (BY MS. BARLOW) SHOW YOU WHAT'S BEEN MARKED STATE'S
5 EXHIBIT 32. DO YOU RECOGNIZE THAT -- DON'T TURN IT FOR THE
6 JURY YET. DO YOU RECOGNIZE WHAT THAT IS?
7 A. THIS IS A TABLE I PREPARED FOR TESTIMONY THAT THE STATE
8 HAS PLACED ON THIS BOARD. THAT IS A COMPILATION OF
9 MATERIALS RELEVANT TO ADMINISTERING DRUGS TO OLDER PERSONS.
10 Q. WHERE DID YOU GET THE MATERIAL THAT YOU PUT ON THIS?
11 A. THIS MATERIAL IS -- IS BASED ON INFORMATION CONTAINED IN
12 THE GERIATRIC DOSAGE HANDBOOK. IT'S ALSO CONTAINED IN
13 TEXTBOOKS RELEVANT TO THE -- TO THE CARE OF THE ELDERLY.
14 IT'S DERIVED FROM LECTURES AND HANDOUTS THAT I GAVE AS A
15 FACULTY MEMBER AT THE UNIVERSITY OF UTAH IN THE TIME PERIOD
16 OF 1991 TO 1995, AND REPRESENTS -- FROM MY OWN LECTURES --
17 THE MATERIAL NECESSARY TO UNDERSTAND THE BASIC PHARMACOLOGY
18 OF THE AGED.
19 Q. AND IS THIS GENERALLY ACCEPTED IN THE MEDICAL COMMUNITY,
20 THIS INFORMATION?
21 A. YES.
22 MS. BARLOW: YOUR HONOR, I'D MOVE FOR ADMISSION --
23 ADMISSION OF STATE'S EXHIBIT 32.
24 MR. STIRBA: FOUNDATION. IT'S HEARSAY, IT'S
25 SELF-SERVING, AND HE'S HERE AND CAN TESTIFY, YOUR HONOR.
2245
1 IT'S REALLY NOT A SUMMARY, IF YOU WILL, OF HIS TESTIMONY.
2 MS. BARLOW: YOUR HONOR?
3 THE COURT: OKAY. DO YOU OBJECT TO IT BEING USED
4 ILLUSTRATIVELY?
5 MR. STIRBA: YES. AS LONG AS IT'S NOT INTRODUCED
6 INTO EVIDENCE, I GUESS HE COULD USE IT TO ILLUSTRATE HIS
7 TESTIMONY.
8 THE COURT: OKAY. WELL, LET'S USE IT TO DO HIS
9 TESTIMONY AND THEN WE CAN ADDRESS THE OTHER POINT LATER.
10 MS. BARLOW: BE HAPPY TO, YOUR HONOR. MAYBE IF WE
11 CAN MOVE THIS UP CLOSER FOR THE JURY.
12 Q. (BY MS. BARLOW) WHAT -- WHAT IS THIS CHART?
13 A. THIS CHART IS A BRIEF SUMMARY OF THE INFORMATION THAT
14 PHYSICIANS USE WHEN PRESCRIBING DRUGS FOR BOTH YOUNG ADULTS
15 AND OLDER ADULTS.
16 Q. WE HAVE SOME TERMS THAT ARE DEFINED UP HERE AT THE TOP.
17 THE FIRST IS HALF LIFE. WHAT IS HALF LIFE?
18 A. HALF LIFE AS IS WRITTEN ON THE CHART IS THE AMOUNT OF
19 TIME THAT -- IN HOURS -- THAT IT TAKES THE BLOOD
20 CONCENTRATION OF A DRUG TO FALL BY HALF. SO IF THE LIFE OF
21 A DRUG IN YOUR BODY IS X NUMBER OF HOURS LONG, THE TIME IT
22 TAKES FOR THAT DRUG TO REACH ITS -- FROM ITS PEAK
23 CONCENTRATION TO HALF THAT PEAK CONCENTRATION IS THE HALF
24 LIFE.
25 Q. WHY IS THAT SIGNIFICANT?
2246
1 A. WELL, HALF LIFE HAS TO DO WITH HOW LONG THE DRUG IS IN
2 THE BLOOD STREAM. IT HAS TO DO WITH HOW LONG THE DRUG IS IN
3 AND PRESENT IN THE BODY.
4 Q. AND THEN DURATION OF EFFECT IS THE NEXT TERM.
5 A. THE DURATION OF EFFECT CAN BE DEFINED AS THE AMOUNT OF
6 TIME IN HOURS THAT A DRUG HAS ACTIVITY IN THE BODY. YOU'LL
7 NOTICE THAT HALF LIFE IS ABOUT THE BLOOD, BUT DURATION OF
8 EFFECT IS ACTIVITY IN THE BODY. IF YOU SWALLOW A PILL NOW,
9 THE DRUG GETS ABSORBED INTO YOUR BLOODSTREAM AND THEN IT'S
10 TRANSPORTED AROUND YOUR BODY IN THE BLOOD. IT'S DELIVERED
11 TO TISSUES WHERE IT GOES INTO THE TISSUES THEMSELVES AND
12 DISSOLVES IN THE FLUID AROUND THE TISSUE OR IS ABSORBED INTO
13 THE INSIDE OF A CELL. SO IT'S STILL IN THE BODY. IN FACT,
14 THAT'S WHERE IT HAS ITS ACTIVITY.
15 AND SO DURATION OF EFFECT HAS TO DO NOT WITH HOW LONG
16 THE BLOOD CARRIES THIS DRUG AROUND, BUT AFTER IT'S DELIVERED
17 TO THE TISSUES OR AFTER IT'S RELEASED FROM TISSUES AFTER
18 IT'S BEEN STORED THERE AND HAS MORE ACTIVITY, THAT'S HOW
19 LONG THE DRUG IS DOING SOMETHING. HALF LIFE RELATES TO WHAT
20 YOU MEASURE. DURATION OF EFFECT RELATES TO BIOLOGICAL
21 ACTIVITY.
22 Q. DRUGS DON'T STAY IN THE BODY FOREVER; IS THAT CORRECT?
23 A. CORRECT.
24 Q. AND SO UNDER HERE UNDER TERM, WE HAVE DRUG METABOLISM,
25 DRUG EXCRETION, PROTEIN BINDING, LEAN BODY MASS, FAT BODY
2247
1 MASS. HOW DOES A DRUG METABOLISM AFFECT THE DURATION OF
2 EFFECT OF A DRUG?
3 A. WELL, DRUG METABOLISM IS A BREAKDOWN OF DRUGS. AND THIS
4 OCCURS PRINCIPALLY IN THE LIVER. THE LIVER RECEIVES THE
5 DRUG THROUGH THE BLOOD FLOW AND -- AND ACTS ON IT TO BREAK
6 IT DOWN INTO INACTIVE OR EVEN ACTIVE PARTICLES.
7 THE BREAKDOWN OF THE DRUG INTO INACTIVE OR -- OR OTHER
8 PARTICLES THAT CAN BE REMOVED CAN CHANGE THE -- THE ACTIVITY
9 OF THE DRUG AND ALLOWS IT TO BE REMOVED FROM THE BODY OR
10 REMOVES ITS -- ITS EFFECT. IF THE -- DO YOU WANT TO ASK --
11 Q. NO. GO AHEAD.
12 A. THE REASON THAT THIS CHART'S PREPARED RELATIVE TO ITS
13 EFFECT ON AGING IS BECAUSE OLDER ADULTS ARE NOT JUST OLDER
14 VERSIONS OF YOUNG ADULTS. THEY'RE PHYSIOLOGICALLY
15 DIFFERENT. AND WITH AGING, THE LIVER'S ABILITY TO
16 METABOLIZE DRUGS IS REDUCED AND SO THAT RESULTS IN A
17 PROLONGATION OF THE HALF LIFE. THE DRUG IS NOT REMOVED FROM
18 THE BLOODSTREAM AS FAST BECAUSE THE LIVER CAN'T REMOVE IT.
19 AND IT PROLONGS THE DURATION OF EFFECT BECAUSE AS THE HALF
20 LIFE LENGTHENS, THE DRUG STILL IS IN THE SYSTEM LONGER AND
21 SO THE EFFECT IS LONGER.
22 Q. AND SO THAT'S WHAT HAPPENS INTERNALLY. WHAT DOES THAT
23 MEAN -- HOW DO I PHRASE THIS? WHAT DOES THAT MEAN, FOR
24 EXAMPLE, IF YOU GET A SHOT OF MORPHINE AT 1930 HOURS, A -- A
25 NORMAL ADULT, LET'S SAY THREE HOURS LATER, AS OPPOSED TO AN
2248
1 ELDERLY ADULT THAT SAME SHOT THREE HOURS LATER? WHAT DOES
2 THAT MEAN?
3 MR. STIRBA: I WOULD OBJECT. RELEVANCY, YOUR
4 HONOR. WE HAVE A SPECIFIC PATIENT.
5 THE COURT: OKAY. I THINK THIS IS BACKGROUND.
6 OVERRULED.
7 Q. (BY MS. BARLOW) SO IF A -- IF A NORMAL, YOUNG ADULT --
8 MAYBE NOT YOUNG, 40 -- NOT AN ELDERLY ADULT. IF JUST AN
9 ADULT GETS A SHOT OF MORPHINE SAY AT 9:30, AND AN ELDERLY
10 PERSON GETS A SHOT OF MORPHINE, SAME AMOUNT, AT 1930, THREE
11 HOURS LATER, WHAT WOULD BE THE DIFFERENCE BETWEEN THE NORMAL
12 ADULT AND THE ELDERLY ADULT AS FAR AS THAT SHOT OF MORPHINE?
13 A. WELL, THE MEASURABLE DIFFERENCE IS THAT THE -- THE HALF
14 LIFE OR THE AMOUNT OF THE DRUG THAT'S STILL PRESENT IN THE
15 SYSTEM WOULD BE HIGHER.
16 Q. IN?
17 A. YOU WOULD EXPECT IT TO BE -- STILL BE HIGHER IN AN OLDER
18 PERSON. AND THE DURATION OF THE EFFECT, BASED ON OTHER
19 FACTORS, WOULD LEAD YOU TO BELIEVE THAT IT WOULD BE A LONGER
20 DURATION OF EFFECT IN AN OLDER PERSON.
21 Q. AND THE EFFECT WOULD BE PAIN RELIEF, FOR MORPHINE?
22 A. BENEFICIAL EFFECT WOULD BE PAIN RELIEF.
23 Q. LET'S -- LET'S LOOK AT DRUG EXCRETION THEN. WHAT --
24 WHAT DOES THAT MEAN?
25 A. SO THE DRUG IS -- PASSES BY THE LIVER OR IS CARRIED IN
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1 THE BLOODSTREAM AND IS METABOLIZED. IT NEEDS TO BE
2 ELIMINATED FROM THE BODY SOMEHOW. SOME OF IT OCCURS THROUGH
3 THE BILE. THE -- THE LIVER ACTUALLY EXCRETES THE MATERIAL
4 OUT OF THE -- OUT OF THE LIVER INTO THE BILE SYSTEM AND INTO
5 THE INTESTINES, OR THE KIDNEYS WHICH DO THE BULK OF THIS,
6 TAKE THE MATERIAL AND EXCRETE IT OUT THROUGH THE URINE.
7 Q. WHAT'S THE EFFECT OF AGING ON DRUG EXCRETION?
8 A. THE -- GENERALLY THE KIDNEYS' ABILITY TO EXCRETE DRUGS
9 IS REDUCED IN OLDER PERSONS.
10 Q. AND THEN THE EFFECT?
11 A. THAT WOULD -- IT CAN'T BE EXCRETED. IT WOULD STAY IN
12 THE BLOODSTREAM LONGER. IF IT STAYS IN THE BODY LONGER,
13 THEN THE DURATION OF EFFECT IS LONGER. SO IT PROLONGS THE
14 HALF LIFE AND PROLONGS THE DURATION OF ACTION.
15 Q. THE NEXT TERM IS PROTEIN BINDING. WHAT DOES THAT MEAN?
16 A. WHEN A DRUG IS ABSORBED INTO YOUR BLOODSTREAM, IT'S NOT
17 JUST DISSOLVED. IT IS ALSO ATTACHED TO PROTEINS. AND, IN
18 FACT, THE PROTEINS SERVE AS A STORE HOUSE FOR DRUGS AND
19 CARRY THEM AROUND THROUGHOUT THE BODY. THE AMOUNT OF DRUG
20 THAT'S LEFT FLOATING FREE IN THE BLOODSTREAM IS THE AMOUNT
21 THAT'S ACTIVE. IT'S THE AMOUNT THAT CAN BE DISSOLVED
22 SOMEWHERE ELSE. SO IF IT'S BOUND UP TO A PROTEIN, IT'S NOT
23 ACTIVE.
24 SO FOR ANY GIVEN DOSE OF MEDICINE, IF YOU HAVE A LOWER
25 AMOUNT OF PROTEIN IN YOUR BLOOD, MORE OF THAT DO