Kent Smith
11 KENT DEAN SMITH,
12 CALLED BY THE PLAINTIFF, HAVING BEEN FIRST DULY
13 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
14 DIRECT EXAMINATION
15 BY MR. WILSON:
16 Q. MR. SMITH, WILL YOU STATE YOUR FULL NAME FOR THE RECORD,
17 PLEASE.
18 A. KENT DEAN SMITH.
19 Q. AND WHERE DO YOU CURRENTLY RESIDE, SIR?
20 A. CENTERVILLE.
21 Q. HOW LONG HAVE YOU RESIDED IN CENTERVILLE?
22 A. ABOUT 28, 29 YEARS, SOMETHING LIKE THAT.
23 Q. AND WHAT IS YOUR RELATIONSHIP TO LYDIA SMITH?
24 A. I AM HER FOURTH CHILD.
25 Q. HOW MANY CHILDREN DID LYDIA YOUR MOTHER HAVE?
657
1 A. SIX CHILDREN.
2 Q. SIX CHILDREN. HOW MANY OF THOSE CHILDREN ARE ALIVE NOW?
3 A. FOUR.
4 Q. I WANT TO CALL YOUR ATTENTION BACK TO I THINK IT WAS
5 AROUND 1995. CAN YOU TELL US IN THE EARLY PART OF 1995
6 WHERE YOUR MOTHER WAS RESIDING?
7 A. IN THE EARLY PART OF '95 SHE LIVED IN HER CONDOMINIUM IN
8 CENTERVILLE.
9 Q. AND DID SHE LIVE THERE ALONE?
10 A. NO, SHE LIVED WITH A YOUNG COUPLE, IT WAS MY COUSIN'S
11 DAUGHTER AND SON-IN-LAW.
12 Q. WAS THERE A REASON FOR THEM BEING THERE IN HER HOME?
13 A. YES. AT THAT TIME MOTHER WANTED TO BE ON HER OWN AS
14 MUCH AS POSSIBLE AND YET SHE COULD NOT LIVE ALONE BECAUSE OF
15 PART OF THE EMOTIONAL TRAUMA THAT SHE EXPERIENCED WHEN DAD
16 DIED.
17 Q. OKAY.
18 A. AND IT PUT HER INTO A EMOTIONAL STATE THAT SHE COULD NOT
19 LIVE ALONE.
20 Q. WHEN DID YOUR FATHER PASS AWAY?
21 A. ABOUT TWO AND A HALF YEARS BEFORE MOTHER DID. IN JUNE
22 OF '93.
23 Q. CAN YOU DESCRIBE HER -- WELL, STRIKE THAT.
24 DID THERE COME AN EVENT IN JUNE OF 1995 WHICH
25 NECESSITATED THE HOSPITALIZATION FOR YOUR MOTHER?
658
1 A. YES. MOTHER WENT THROUGH A GALLBLADDER OPERATION AND
2 THAT CREATED SOME EMOTIONAL TRAUMA WITH HER AND SHE
3 BASICALLY WAS NOT QUITE THE SAME AFTERWARDS.
4 Q. WHERE WAS THIS GALLBLADDER OPERATION, DO YOU REMEMBER?
5 A. LAKEVIEW HOSPITAL IN BOUNTIFUL.
6 Q. DO YOU KNOW HOW LONG SHE WAS IN LAKEVIEW FOR?
7 A. I'M GUESSING A WEEK. I'M NOT SURE.
8 Q. ALL RIGHT. WHERE DID SHE GO AFTER LEAVING LAKEVIEW
9 HOSPITAL?
10 A. SHE WENT TO THE LONG-TERM NURSING CARE AT SOUTH DAVIS
11 COMMUNITY HOSPITAL BUT SHE WAS IN THE NURSING CARE UNIT.
12 Q. AND AS I THINK YOU INDICATED, SHE WAS HAVING SOME
13 EMOTIONAL PROBLEMS?
14 A. YES, SHE WAS.
15 Q. WHAT ABOUT HER PHYSICAL HEALTH AT THAT TIME?
16 A. PROBABLY THE THING ABOUT MOTHER IS THAT SHE HAD AN
17 EXTREMELY STRONG CONSTITUTION. SHE BELIEVED THAT IF SHE
18 COULD WALK, SHE COULD LIVE, WHICH I DON'T THINK ANY OF US
19 DENY, BUT SHE WOULD WALK CONSTANTLY. AND ANY TIME THAT I
20 WOULD VISIT HER, WE WOULD GO FOR A WALK. VERY SELDOM WOULD
21 WE SIT AND JUST TALK.
22 Q. SO DURING THIS TIME FRAME, DID SHE HAVE ANY COMPLAINTS
23 ABOUT PAIN?
24 A. NOT THAT I CAN RECALL.
25 Q. DID SHE REMAIN ON THE LONG-TERM NURSING CARE UNIT?
659
1 A. FOR A PERIOD OF TIME, FOR ABOUT SIX MONTHS OR FIVE
2 MONTHS, SOMETHING LIKE THAT.
3 Q. DID SOMETHING OCCUR IN NOVEMBER OF 1995 THAT
4 NECESSITATED HOSPITALIZATION?
5 A. WE WERE -- WE WERE TOLD THAT SHE HAD A STROKE. AS FAR
6 AS GOING BACK IN THE HOSPITAL, I DO NOT REMEMBER HER GOING
7 BACK IN THE HOSPITAL, ALTHOUGH SHE COULD HAVE.
8 Q. WHEN DID THIS OCCUR, WAS IT AROUND THE END OF NINETY --
9 OR AROUND THE END OF NOVEMBER?
10 A. I -- TO THE BEST OF MY KNOWLEDGE, SOMETIME IN NOVEMBER.
11 Q. SOMETIME IN NOVEMBER?
12 A. YES, NEAR THE END I IMAGINE, YES. IT WAS NEAR
13 THANKSGIVING IF I RECALL.
14 Q. WAS SHE MOVED FROM THE LONG-TERM CARE CENTER AT THAT
15 POINT OR DID SHE REMAIN THERE?
16 A. NO. IF I REMEMBER, SHE REMAINED THERE.
17 Q. CAN YOU TELL US, WAS THERE ANY CHANGE IN HER PHYSICAL
18 CONDITION SUBSEQUENT TO THE STROKE IN NOVEMBER?
19 A. FOR A SHORT PERIOD I MEAN A DAY OR TWO SHE WAS NOT AS
20 MOBILE AS SHE HAD BEEN BEFORE.
21 Q. WAS THERE ANY IMPAIRMENT TO HER SPEECH?
22 A. THERE WAS AN IMPAIRMENT TO HER SPEECH. SHE LOST THE
23 ABILITY TO COMMUNICATE THAT WAY. AT LEAST IT WAS
24 DETERRED -- SHE COULD NOT SPEAK VERY WELL, ALTHOUGH SHE
25 COULD COMMUNICATE IN OTHER WAYS TO US.
660
1 Q. DID SHE CONTINUE TO WALK?
2 A. OH, YES, YES.
3 Q. WAS SHE A PROBLEM TO THE STAFF AT THE HOSPITAL?
4 A. YES.
5 Q. DID SHE ALSO HAVE AN OCCASION TO PLAY THE PIANO?
6 A. MOTHER WAS A VERY ACCOMPLISHED PIANIST. SHE HAD EVEN
7 TAKEN LESSONS IN D.C. WHEN SHE WAS BACK THERE AS A YOUNG
8 20-YEAR-OLD AND SHE COULD PLAY VERY WELL.
9 Q. DID SHE PLAY AFTER SHE HAD THE STROKE?
10 A. YES. THE NURSES WERE SURPRISED THAT SHE COULD PLAY AS
11 WELL AS SHE COULD. SHE ENJOYED PLAYING CHURCH HYMNS AND SHE
12 WOULD PLAY QUITE CONSISTENTLY GOING BY HERSELF TO PLAY THE
13 PIANO.
14 Q. DID THERE COME A TIME THAT YOU WERE REQUIRED TO TRANSFER
15 HER OUT OF THE SOUTH DAVIS COMMUNITY CARE CENTER?
16 A. YES, THERE WAS.
17 Q. AND DO YOU RECALL APPROXIMATELY WHEN THAT OCCURRED?
18 A. WELL, IT WAS SHORTLY BEFORE WE MOVED HER TO NORTH DAVIS
19 BECAUSE OF THE -- SHE WENT THROUGH A -- WELL, SHE BECAME
20 QUITE COMBATIVE AFTER HER STROKE, MUCH MORE AGGRESSIVE. SHE
21 ACTUALLY HIT HER ROOMMATE, A VERY SWEET ELDERLY LADY, HIT
22 HER IN THE FACE. AND AT THAT POINT THE HOSPITAL SAID, WE
23 CANNOT HAVE SOMEBODY THAT THAT'S THAT TYPE OF A PROBLEM HERE
24 IN THIS UNIT, THAT'S NOT WHAT THIS UNIT IS FOR.
25 Q. DO YOU REMEMBER YOUR IMPRESSION AS TO WHAT THE PURPOSE
661
1 WAS FOR MOVING HER TO THE GEROPSYCH UNIT IN THE DAVIS
2 HOSPITAL?
3 A. WE WERE TOLD THAT --
4 Q. NOT AS TO WHAT YOU WERE TOLD, BUT WHAT YOUR OWN
5 IMPRESSION WAS AS TO WHY SHE WAS BEING MOVED THERE.
6 A. MOTHER'S CHEMICALS THEY FELT WERE IMBALANCED AND
7 THEREFORE THEY NEEDED TO GET HER SOME CARE THAT WOULD BRING
8 THE CHEMICALS BACK IN LINE. THEY FELT THAT WAS THE REASON.
9 MY UNDERSTANDING IS SHE NEEDED TO BE MOVED BECAUSE THEY
10 NEEDED TO PUT HER CHEMICALS BACK IN LINE SO HER EMOTIONAL
11 STABILITY COULD BE BROUGHT BACK.
12 Q. OKAY. AND DID YOU HAVE ANY UNDERSTANDING AS TO HOW LONG
13 A TIME IT WOULD REQUIRE HER TO MOVE?
14 A. WE WERE TOLD APPROXIMATELY TWO TO THREE WEEKS.
15 Q. OKAY. WHEN DID THIS TRANSFER TAKE PLACE?
16 A. I THINK IT WAS ABOUT THE 20TH OF DECEMBER.
17 Q. DID YOU PARTICIPATE IN THAT, SIR?
18 A. NO.
19 Q. WHAT WAS THE FIRST OCCASION THAT YOU HAD TO VISIT YOUR
20 MOTHER AT THE GEROPSYCH UNIT?
21 A. I VISITED HER, IF I REMEMBER CORRECTLY, THAT AFTERNOON.
22 I HAD BEEN AT WORK AND THAT'S THE REASON I DID NOT TRANSPORT
23 HER AND I VISITED HER AFTER THAT NOON I -- LIKE I SAID...
24 Q. FROM A MENTAL STANDPOINT AT THAT TIME, CAN YOU DESCRIBE
25 YOUR MOTHER'S MENTAL STATUS AS FAR AS HER ABILITY TO
662
1 COMPREHEND THINGS AND TO MAKE DECISIONS ON HER OWN?
2 A. SHE WAS VERY UNHAPPY THAT SHE WAS BEING TRANSFERRED TO
3 NORTH DAVIS. SHE SAW NO REASON FOR THAT. SHE LET US KNOW
4 THAT SHE WAS NOT HAPPY WITH THE TRANSFER. EVEN THOUGH HER
5 SPEECH WAS NOT WHAT IT HAD BEEN BUT SHE COULD COMMUNICATE,
6 COULD SAY ENOUGH. SHE WAS GETTING BACK HER SPEECH BY THIS
7 TIME AND SHE WAS TELLING US EXACTLY WHAT SHE WANTED AND THAT
8 WAS THAT SHE DIDN'T WANT TO BE IN THAT UNIT.
9 Q. WAS THERE ANYBODY IN THE FAMILY WHO HAD ANY KIND OF
10 GUARDIANSHIP OR CONSERVATORSHIP OVER YOUR MOTHER'S PERSONAL
11 ESTATE?
12 A. YES, MY SISTER CAROLYN AND MYSELF WERE EXECUTORS OF THE
13 ESTATE.
14 Q. DO YOU RECALL IF YOU EVER HAD OCCASION TO EXECUTE ANY
15 DOCUMENTS AT THE HOSPITAL ON THE DATE OF YOUR MOTHER'S
16 ADMISSION RELATIVE TO DIRECTIVES OR ANYTHING OF THAT NATURE?
17 A. I DO NOT RECALL THAT.
18 Q. OKAY. TO YOUR KNOWLEDGE, DID YOUR MOTHER HAVE A LIVING
19 WILL IN PLACE AT THAT TIME?
20 A. NO, I DON'T BELIEVE SO. I CAN'T SAY FOR SURE.
21 Q. DO YOU KNOW WHAT A LIVING WILL?
22 A. NO, I DON'T -- I DON'T THINK SHE DID. BUT THAT I DON'T
23 KNOW.
24 Q. EXCUSE ME.
25 A. I JUST DON'T KNOW THAT.
663
1 Q. OKAY. YOU JUST DON'T KNOW THAT.
2 HOW OFTEN WOULD YOU VISIT YOUR MOTHER?
3 A. NEARLY EVERY DAY. I WORKED A MILE OR SOMEWHERE AROUND
4 THERE FROM THE HOSPITAL.
5 Q. WHERE WAS YOUR WORK LOCATED?
6 A. AT 835 SOUTH STATE STREET IN CLEARFIELD. I'M THE
7 PRINCIPAL OF THE JUNIOR HIGH THERE.
8 Q. SO YOU WOULD VISIT WITH HER NEARLY EVERY DAY. WAS THERE
9 A CERTAIN TIME OF THE DAY THAT YOU WOULD VISIT HER RATHER
10 THAN OTHER TIMES OF THE DAY?
11 A. GENERALLY RIGHT AFTER WORK.
12 Q. OKAY.
13 A. OR IF MY WIFE AND I WERE GOING TO VISIT HER THAT NIGHT,
14 SOMETIMES WE WOULD COME BACK AT NIGHT.
15 Q. CAN YOU TELL US WHETHER YOU -- DURING THE COURSE OF YOUR
16 MOTHER'S STAY AT THE GEROPSYCH UNIT WHETHER YOU NOTICED ANY
17 CHANGE IN HER PHYSICAL ACTIVITY OR PHYSICAL WELL-BEING?
18 A. FOR THE FIRST SEVERAL DAYS WHENEVER I VISITED MOTHER IT
19 WAS THE SAME THING AS WITH SOUTH DAVIS. I WOULD GO VISIT
20 HER AND SHE WOULD TAKE MY ARM AND WE WOULD GO FOR A WALK.
21 AND FIRST OF ALL THEY GAVE HER A WALKER AND I SAID TO THE
22 NURSE -- I ASKED MY MOTHER, WHY ARE YOU HAVING A WALKER?
23 AND SHE SAID, I DON'T KNOW, THEY TOLD ME I HAD TO HAVE IT.
24 I ASKED THE NURSE AND THEY SAID BASICALLY IT WAS FOR
25 LIABILITY SAKES AND I SAYS, WELL, DOES SHE NEED IT? AND
664
1 THEY SAID, WELL, THAT'S UP TO YOU. WE WOULD LIKE TO HAVE
2 HER HAVE IT. AND I SAID, WELL, SHE DOESN'T NEED IT AND WE
3 TOOK THE WALKER AWAY FROM HER AND SHE HAD IT IN HER ROOM AND
4 I GUESS IF SHE WENT BY HERSELF SHE WOULD BUT SHE WOULD WALK
5 PRETTY STEADILY WITH OR WITHOUT MY ARM WITHOUT ANY TROUBLE
6 AT ALL. AND THAT'S WHEN SHE ENTERED THE HOSPITAL, SHE WAS
7 LIKE THAT FOR SEVERAL DAYS.
8 Q. THEN WHAT HAPPENED?
9 A. THE BIG CHANGE I NOTICED WAS DURING THE PROBABLY THE
10 FIRST OF -- FIRST FEW -- WELL, LATER ON I WOULD SAY AFTER
11 SHE HAD BEEN THERE ALMOST TWO WEEKS, SHE SEEMED TO BECOME
12 MORE LETHARGIC, NOT WANTING TO GET OUT OF BED. WE EVEN
13 ASKED THE NURSES, WAS SHE GETTING OUT OF BED AND THEY WOULD
14 SAY NOT VERY MUCH.
15 Q. DID YOU EVER INQUIRE AS TO WHAT MEDICATIONS SHE WAS
16 RECEIVING?
17 A. I DID NOT, NO.
18 Q. SO SHE APPEARED TO BE MORE LETHARGIC? ANYTHING ELSE,
19 HER SPEECH?
20 A. WELL, SHE DIDN'T TALK AS MUCH AS SHE USED -- AS SHE HAD
21 BEFORE. SHE JUST KIND OF -- I DON'T KNOW HOW TO SAY IT
22 OTHER THAN SAYING SHE LOOKED LIKE SHE WAS JUST SHUTTING
23 DOWN.
24 Q. DID SHE -- WELL, MAYBE YOU CAN CONTINUE TO DESCRIBE WHAT
25 YOU OBSERVED IN THE DAYS FOLLOWING THAT.
665
1 A. THE BIGGEST CHANGE I SAW WAS ON THE SATURDAY NIGHT PRIOR
2 TO HER DEATH WHEN WE WENT INTO THE HOSPITAL AND SHE WAS IN
3 THE RECREATION ROOM. SHE WAS IN A CHAIR, SHE HAD FOOD IN
4 HER MOUTH, HER HEAD WAS DOWN, AND SHE WAS JUST OUT OF IT.
5 NO ABILITY OF COMMUNICATING WITH US. SHE WAS NOT THE MOTHER
6 I REMEMBER AND IT JUST SEEMED LIKE FOR SEVERAL DAYS PRIOR TO
7 THAT SHE WAS SLOWLY PROGRESSING THAT WAY. BUT ON THAT DAY
8 IT WAS A MARKED CHANGE AND THAT'S PROBABLY THE DAY I
9 REMEMBER BEST OF ALL BECAUSE WE WENT TO THE NURSE AND SAID,
10 WHAT IS GOING ON HERE, WHY IS SHE LIKE LEFT HERE? AND WE
11 WERE VERY UPSET AT THE FACT THAT SHE WAS NOT BEING TAKEN
12 CARE OF.
13 Q. I SEE. SO DID YOU VISIT HER THE NEXT DAY?
14 A. YES. WELL, WE HAD AN APPOINTMENT -- I CANNOT REMEMBER
15 IF I WENT IN THE AFTERNOON OR NOT. I DO KNOW THAT WE HAD A
16 MEETING THAT NIGHT WITH THE DOCTOR AND, THEREFORE, I WAS
17 THERE THAT NIGHT BUT NORMALLY --
18 Q. LET'S TALK ABOUT THAT MEETING WITH THE DOCTOR. DO YOU
19 RECALL APPROXIMATELY WHEN THAT MEETING TOOK PLACE?
20 A. I'M GUESSING LIKE 8 O'CLOCK, 8:30.
21 Q. WHO WAS PRESENT AT THAT MEETING?
22 A. MY OLDER BROTHER AND HIS WIFE, MY SISTER, OLDER SISTER
23 AND MY WIFE AND I.
24 Q. AND WAS THIS -- WHERE DID THIS MEETING TAKE PLACE?
25 A. IN THE HOSPITAL. I'M NOT -- I CAN'T REMEMBER EXACTLY
666
1 WHERE.
2 Q. WAS IT IN YOUR MOTHER'S ROOM?
3 A. THAT I CANNOT TELL YOU.
4 Q. OKAY. BUT YOU REMEMBER IT BEING AT THE HOSPITAL?
5 A. OH, YES.
6 Q. AND THE MEETING WAS WITH DR. WEITZEL?
7 A. YES.
8 Q. OKAY. DID HE COME TO THE AREA WHERE YOU WERE GATHERED
9 TO MEET WITH YOU?
10 A. ALL I KNOW IS WE MET. I CAN'T REMEMBER EXACTLY WHERE IT
11 WAS OR WHERE. IT SEEMED TO ME WE WENT SOMEWHERE OTHER THAN
12 HER ROOM, BUT I'M NOT POSITIVE ON THAT.
13 Q. DO YOU RECALL GOING INTO HER ROOM THAT NIGHT?
14 A. OH, YES. YES, I DID SEE MOTHER THAT NIGHT.
15 Q. CAN YOU DESCRIBE FOR US PHYSICAL CONDITION AT THAT TIME?
16 A. MOTHER LAID DOWN -- WAS ON THE BED, VIRTUALLY NO
17 MOVEMENT AT ALL UNTIL SHE RAISED HER HAND. IT WAS LIKE SHE
18 WAS REACHING OUT FOR SOMEBODY, SHE JUST KIND OF RAISED IT UP
19 LIKE THIS, AND I PUT HER ARM DOWN AND THEN SHE RAISED IT
20 AGAIN AND THAT WAS THE ONLY MOVEMENT I SAW.
21 Q. DO YOU REMEMBER HAVING THE DISCUSSION OR A CONVERSATION
22 WITH THE DOCTOR THAT NIGHT?
23 A. YES.
24 Q. AND WAS IT A GENERAL CONVERSATION OR WHAT? I MEAN, WERE
25 ALL OF YOU INVOLVED IN THIS CONVERSATION?
667
1 A. YES.
2 Q. OKAY. DO YOU REMEMBER WHAT THE DOCTOR TOLD YOU, IF
3 ANYTHING, ON THAT PARTICULAR OCCASION?
4 A. YES. HE SAID THAT MOTHER WAS DYING AND THAT HE WANTED
5 TO GIVE HER COMFORT AND BASICALLY WANTED TO KNOW WHAT THAT
6 MEANT BECAUSE WE HAD BEEN THROUGH TWICE -- WELL, THREE TIMES
7 IN THE INCIDENCE WITH MY FATHER SO I KIND OF HAD AN IDEA OF
8 WHAT THAT MEANT.
9 Q. WAS THERE ANY DISCUSSION ABOUT LIFE SUPPORT OR HEROIC
10 MEASURES OR ANYTHING OF THAT SORT?
11 A. YES. YES, THERE WAS BECAUSE WE SAID WE DIDN'T WANT ANY
12 HEROIC MEASURES DONE.
13 Q. WAS THERE ANY INDICATION TO YOU BY DR. WEITZEL AS TO HOW
14 LONG THIS PROCESS MAY TAKE, THIS DYING PROCESS?
15 A. I DO NOT RECALL.
16 Q. DO YOU RECALL ANY OTHER SPECIFICS ABOUT THE CONVERSATION
17 BY DR. WEITZEL AS TO HIM MAKING ANY KIND OF STATEMENTS
18 PERSONALLY?
19 A. OTHER THAN THE FACT THAT HE WANTED TO GIVE HER COMFORT,
20 THE NO LIFE SUPPORT SYSTEMS WE'D GIVE HER, I CANNOT RECALL
21 WELL ENOUGH TO SAY ANYTHING SPECIFICALLY.
22 Q. OKAY. HOW WERE YOU FEELING AT THIS TIME?
23 MR. STIRBA: OBJECTION, IT'S IRRELEVANT, YOUR
24 HONOR.
25 MR. WILSON: I THINK IT'S RELEVANT --
668
1 THE COURT: SUSTAINED.
2 MR. WILSON: -- AS IT GOES TO THE CIRCUMSTANCES
3 SURROUNDING THE CONVERSATION AND ALSO AS TO THE IMPRESSIONS.
4 THE COURT: IT'S SUSTAINED.
5 Q. (BY MR. WILSON) IN RESPECT TO -- HOW LONG WERE YOU
6 THERE AT THE HOSPITAL AT THAT TIME, SIR?
7 A. I'M GUESSING AN HOUR. MOST OF MY VISITS WERE ABOUT AN
8 HOUR LONG.
9 Q. DID YOU OBSERVE ANY -- ANYBODY GIVE ANY KIND OF
10 TREATMENT TO YOUR MOTHER DURING YOUR TIME PERIOD THAT YOU
11 WERE THERE ON THAT EVENING?
12 A. YES. I BELIEVE THE NURSE CAME IN AND CHECKED HER
13 TEMPERATURE, BLOOD PRESSURE. THAT WAS QUITE FREQUENTLY DONE
14 WHEN I WAS THERE.
15 Q. WERE THERE ANY SHOTS ADMINISTERED TO YOUR RECOLLECTION?
16 A. I DO NOT RECALL OF ANY SHOTS.
17 Q. SO YOU LEFT THE HOSPITAL THAT EVENING?
18 A. YES.
19 Q. ON THE WAY BACK FROM THE HOSPITAL, DID YOU HAVE ANY
20 CONVERSATIONS WITH YOUR WIFE?
21 A. I DID.
22 Q. DID SHE REPORT TO YOU ANY CONVERSATION OR ANY STATEMENTS
23 THAT SHE HAD OVERHEARD?
24 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT,
25 IRRELEVANT, AND WE'RE GETTING CLOSE TO HEARSAY.
669
1 MR. WILSON: YOUR HONOR, IT'S -- IT GOES TO
2 CORROBORATE --
3 MR. STIRBA: NO.
4 MR. WILSON: -- THE PRIOR WITNESS'S TESTIMONY.
5 THE COURT: WELL, THE WITNESS HAS TESTIFIED WHAT
6 WAS SAID AT THE TIME AND WHAT HE RECALLS BEING SAID, IT'S
7 SUSTAINED.
8 MR. WILSON: EXCUSE ME, YOUR HONOR?
9 THE COURT: I SAID THE OBJECTION IS SUSTAINED.
10 HE'S TESTIFIED WHAT HE RECALLS BEING SAID AT THE MEETING
11 WITH THE DOCTOR.
12 MR. WILSON: I GUESS, YOUR HONOR, I STILL DIDN'T
13 HEAR THE COURT. I'M SORRY.
14 THE COURT: I SAID THE OBJECTION WAS SUSTAINED.
15 MR. WILSON: I APPRECIATED THAT, BUT YOU ALSO MADE
16 A COMMENT RELATIVE TO WHAT HE HAD STATED.
17 THE COURT: I SAID HE PREVIOUSLY HAS TESTIFIED AS
18 TO WHAT WAS SAID BY THE DOCTOR AT THE MEETING.
19 MR. WILSON: ALL I'M ASKING HIM IS A QUESTION
20 RELATED TO DID HE HAVE A CONVERSATION WITH HIS WIFE ABOUT A
21 STATEMENT.
22 THE COURT: YES, AND I'VE SUSTAINED THE OBJECTION.
23 Q. (BY MR. WILSON) DID YOU EVER HAVE OCCASION TO VISIT
24 WITH YOUR MOTHER AGAIN AT THE HOSPITAL THE FOLLOWING DAY?
25 A. NO.
670
1 Q. OKAY.
2 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
3 HONOR.
4 THE COURT: ANY CROSS?
5 MR. STIRBA: YES, YOUR HONOR. JUST GOT TO GET AN
6 EXHIBIT, YOUR HONOR.
7 CROSS-EXAMINATION
8 BY MR. STIRBA:
9 Q. MR. SMITH, I'M GOING TO HAND YOU AN EXHIBIT, STATE'S
10 EXHIBIT 4 AND I MIGHT MAKE REFERENCE TO IT, IT'S A BINDER
11 AND LET ME GET THIS ONE OUT OF YOUR WAY.
12 MR. SMITH, YOU'VE TESTIFIED ABOUT A CONVERSATION THAT
13 OCCURRED ON I GUESS IT WOULD BE THE 7TH OF JANUARY OF 1995,
14 IT WOULD BE SUNDAY EVENING; IS THAT CORRECT?
15 A. YES, YES.
16 Q. AND THAT'S THE CONVERSATION THAT YOU TESTIFIED THAT
17 INVOLVED DR. WEITZEL AND SOME OTHER MEMBERS OF YOUR FAMILY;
18 IS THAT TRUE?
19 A. YES.
20 Q. AND IT'S TRUE -- AND YOU TESTIFIED YOU DON'T RECALL, BUT
21 IT'S TRUE, IS IT NOT, THAT YOU DID IN FACT SIGN OR EXECUTE A
22 SERIES OF DIRECTIVES CONCERNING YOUR MOTHER'S CARE DURING
23 THE TIME THAT SHE WAS IN THE HOSPITAL?
24 A. I WOULD IMAGINE SO. I DON'T RECALL EXACTLY WHAT I
25 SIGNED AT THIS POINT.
671
1 Q. AND YOU TESTIFIED ABOUT THAT CONVERSATION WHEN DR.
2 WEITZEL SAID HE WANTED TO KEEP YOUR MOM COMFORTABLE. I
3 THINK I UNDERSTOOD YOU TO SAY BASED UPON YOUR EXPERIENCE
4 WITH YOUR DAD, YOU UNDERSTOOD WHAT THAT MEANT?
5 A. YES.
6 Q. AND CAN YOU TELL ME, PLEASE, WHAT YOUR UNDERSTANDING WAS
7 THAT YOU UNDERSTAND WAS MEANT BY DR. WEITZEL?
8 A. BASICALLY THAT THERE WOULD BE NO HEROIC MEASURES, SUCH
9 AS RESUSCITATION GIVEN IN CASE SHE STARTED TO SLIP, THAT SHE
10 WOULD BE GIVEN BASIC COMFORTABLE -- IF SHE NEEDED OXYGEN,
11 SHE WOULD BE GIVEN OXYGEN, AND THAT'S ABOUT ALL THAT SHE
12 WOULD BE GIVEN.
13 Q. AND DID YOU UNDERSTAND THAT KEEPING HER COMFORTABLE
14 COULD INCLUDE GIVING HER MEDICATIONS?
15 A. OH, YES.
16 Q. AND IT'S TRUE, IS IT NOT, THAT THE CONVERSATION YOU HAD
17 ON THE 7TH, THAT WASN'T THE FIRST CONVERSATION CONCERNING
18 HEROIC MEASURES OR AGGRESSIVE MEASURES CONCERNING YOUR MOM?
19 A. IF THERE WAS, I HONESTLY CANNOT REMEMBER ANOTHER TIME.
20 Q. LET ME DIRECT YOUR ATTENTION TO THE HOSPITALIZATION AT
21 LAKEVIEW AT THE END OF NOVEMBER OF 1995 WHEN SHE HAD THE
22 STROKE.
23 DO YOU RECALL HAVING A CONVERSATION AT THAT POINT WITH
24 ONE OF THE PHYSICIANS SPECIFICALLY DR. JENSEN ABOUT WHETHER
25 SOME AGGRESSIVE MEASURES SHOULD BE TAKEN IN THE EVENT YOUR
672
1 MOM WAS CLOSE TO DEATH?
2 A. I DO NOT RECALL THAT CONVERSATION.
3 Q. DO YOU RECALL HAVING ANY DISCUSSIONS ABOUT HEROIC
4 MEASURES OR EXTRAORDINARY MEASURES BEING TAKEN CONCERNING
5 THAT HOSPITALIZATION?
6 A. NO, I DON'T RECALL ANY CONVERSATION. IT COULD HAVE
7 TAKEN PLACE, I JUST DON'T REMEMBER.
8 Q. YOU DON'T REMEMBER. NOW, YOU HAD A CONVERSATION SUNDAY
9 EVENING ON THE 7TH AND IT WAS ABOUT -- YOU THINK ABOUT
10 8 O'CLOCK?
11 A. YES, BECAUSE HE ASKED FOR LATER IN THE EVENING AND I'M
12 GUESSING, BUT THAT'S MY REMEMBRANCE.
13 Q. AND I UNDERSTAND. AND AS I UNDERSTAND YOUR TESTIMONY,
14 YOU SAID YOU WERE IN THE HOSPITAL ABOUT AN HOUR THAT
15 EVENING?
16 A. YES.
17 Q. AND I TAKE IT NOT ALL THAT TIME WAS TAKEN UP IN
18 CONVERSATION WITH DR. WEITZEL; IS THAT TRUE?
19 A. THAT'S TRUE.
20 Q. DO YOU HAVE ANY RECOLLECTION AS YOU SIT HERE TODAY OF
21 SIGNING ANY DOCUMENTS WHILE YOU WERE AT THE HOSPITAL THAT
22 EVENING?
23 A. I DON'T RECALL THAT, NO.
24 Q. YOU ARE SAYING YOU DON'T RECALL OR YOU DON'T BELIEVE
25 THAT HAPPENED?
673
1 A. I DON'T RECALL.
2 Q. LET ME ASK YOU TO TURN AND THAT IS EXHIBIT NUMBER --
3 IT'S ON THE FRONT AGAIN IF I COULD ASK YOU, WHAT'S THE
4 NUMBER ON THAT ONE?
5 A. FOUR.
6 THE COURT: FOUR.
7 Q. (BY MR. STIRBA) EXHIBIT FOUR. THANK YOU, YOUR HONOR.
8 THANK YOU, MR. SMITH.
9 IF YOU COULD TURN TO THE SECTION DEALING WITH
10 MEDICAL\LEGAL, IT'S KIND OF IN THE MIDDLE, THEY ARE TABBED.
11 A. GOT IT.
12 Q. AND IF YOU'LL TURN TO THE SECOND PAGE THERE'S A DOCUMENT
13 THAT IS MED-00811, DO YOU SEE THAT? DO YOU HAVE THAT IN
14 FRONT OF YOU?
15 A. 001, WHERE IS THAT LOCATED?
16 MR. STIRBA: MAY I ASSIST, YOUR HONOR?
17 THE WITNESS: IS THAT A ZERO?
18 MR. STIRBA: I APPRECIATE THAT. NO, IT'S THE ONE
19 RIGHT DOWN THERE. SO WHEN I REFER TO A NUMBER THEY ARE DOWN
20 AT THE BOTTOM BUT THAT'S THE RIGHT DOCUMENT.
21 THE WITNESS: 00811?
22 MR. STIRBA: YES, YOU ARE RIGHT WITH ME.
23 THE WITNESS: OKAY.
24 Q. (BY MR. STIRBA) IS YOUR SIGNATURE ON THAT DOCUMENT?
25 A. YES.
674
1 Q. NOW, THAT DOCUMENT AT THE TOP IT SAYS MEDICAL TREATMENT
2 PLAN, DOES IT NOT?
3 A. IT DOES.
4 Q. AND THEN IF I...AND YOUR SIGNATURE IS DOWN WHERE IT SAYS
5 SIGNATURE OF DECLARANT OR AUTHORIZED AGENT AND A DATE, DO
6 YOU SEE THAT?
7 A. YES.
8 Q. AND ABOVE THAT LINE, THAT IS YOUR KENT SMITH; IS THAT
9 CORRECT?
10 A. IN BOTH CASES.
11 Q. PARDON ME?
12 A. IN BOTH CASES.
13 Q. OKAY. AND THAT'S RIGHT OFF TO THE LEFT, THAT IS ALSO
14 YOUR SIGNATURE.
15 HAVING SEEN THIS DOCUMENT NOW, DOES THIS REFRESH YOUR
16 RECOLLECTION AS TO WHETHER OR NOT YOU DID, IN FACT, SIGN
17 SOME DIRECTIVES FOR YOUR MOM'S CARE DURING THE TIME THAT SHE
18 WAS THERE?
19 A. YES.
20 Q. AND YOU NOTICE, SIR, THERE IS A DATE OF 1/7/96 TO THE
21 RIGHT OF YOUR SIGNATURE, DO YOU SEE THAT?
22 A. YES.
23 Q. AND WOULD THAT HAVE BEEN THE DATE, THEN, THAT YOU WOULD
24 HAVE SIGNED THIS DOCUMENT?
25 A. YES.
675
1 Q. AND CAN YOU REMEMBER NOW THAT YOU'VE SEEN THE DOCUMENT
2 AND YOU'VE TOLD US IT WAS ON THE 7TH AND YOU WERE THERE ON
3 THE 7TH AT LEAST IN THE EVENING FOR ABOUT AN HOUR, DO YOU
4 RECALL WHETHER YOU WOULD HAVE SIGNED THIS BEFORE OR AFTER
5 YOUR CONVERSATION WITH DR. WEITZEL?
6 A. I DO NOT RECALL SIGNING IT. I CAN SEE THAT I SIGNED IT
7 BUT I DON'T RECALL SIGNING IT SO I CAN'T TELL YOU. I WOULD
8 IMAGINE IT WAS DURING THE TIME THE DOCTOR WAS WITH ME,
9 THAT'S THE ONLY THING I CAN THINK ABOUT IT.
10 Q. OKAY. SO YOU REALLY HAVE NO RECOLLECTION OF ACTUALLY
11 SIGNING IT, ALTHOUGH IT IS YOUR SIGNATURE AND YOU AGREE THAT
12 YOU SIGNED IT ON THE 7TH; IS THAT RIGHT?
13 A. THAT'S CORRECT.
14 Q. AND IF YOU LOOK AT THE DIRECTIVES, SPECIFICALLY THE CARE
15 AND TREATMENT THAT YOU WERE DIRECTING WITH RESPECT TO THE
16 DECLARANT, I WANT TO REVIEW THOSE WITH YOU IF I COULD. YOU
17 HAVE A DO NOT RESUSCITATE AND IT SAYS YES, DO YOU SEE THAT?
18 A. I DO.
19 Q. NOW, WAS THAT YOUR DIRECTIVE TO THE HOSPITAL AND THE
20 PEOPLE TAKING CARE OF YOUR MOM AT THAT TIME?
21 A. YES.
22 Q. AND YOU ALSO HAVE CHECKED NO TO OXYGEN THERAPY,
23 RESPIRATORY THEORY, SUCTIONING, MECHANICAL VENTILATION,
24 C.P.R., CHEST COMPRESSION, CARDIAC MEDICATION, AND
25 DEFIBRILLATION. WERE THOSE YOUR DIRECTIVES AT THE TIME TO
676
1 THE HOSPITAL AND TO THOSE WHO WERE CARING FOR YOUR MOM?
2 A. YES.
3 Q. AND THEN ON THE RIGHT SIDE WE HAVE CHEMOTHERAPY,
4 RADIATION, SURGERY, I.V. FLUIDS, N.G. FOR NASAL GASTRIC TUBE
5 FOR FLUIDS FEEDING, GASTRIC TUBE, ORAL ANTIBIOTICS, I.M.
6 ANTIBIOTICS AND I.V. ANTIBIOTICS. WERE THOSE YOUR
7 DIRECTIVES AS WELL TO THE HOSPITAL PERSONNEL AT THAT TIME?
8 A. YES.
9 Q. NOW, OFF TO THE LEFT UNDERNEATH YOUR SIGNATURE IS
10 ANOTHER SIGNATURE, IT SAYS FACILITY REPRESENTATIVE, DO YOU
11 SEE THAT?
12 A. I DO.
13 Q. AND CAN YOU -- DO YOU RECALL SOMEBODY ACTUALLY SIGNING
14 THIS DOCUMENT AT THE TIME --
15 A. NO. I DON'T REMEMBER SIGNING THE DOCUMENT SO I CAN'T
16 RECALL.
17 Q. SO YOU HAVE NO RECOLLECTION OF THAT EITHER?
18 A. NO.
19 Q. IF YOU'LL TURN TO THE NEXT PAGE, PLEASE. IT'S MED-00812
20 AND THERE ARE TWO WITNESSES, LARRY BLANCHARD AND SHIRLEY
21 BLANCHARD, DO YOU KNOW WHO THEY ARE?
22 A. THIS IS PRICKING SOMETHING IN THE BACK OF MY MIND. I
23 THINK IT WAS SOMEBODY IN THE HOSPITAL, SOMEBODY VISITING
24 SOMEBODY, THAT'S THE ONLY THING I CAN THINK ABOUT. THERE
25 WAS A COUPLE THAT DID -- THAT WAS THERE DURING THE SIGNING
677
1 OF A DOCUMENT AND THERE WAS SOMEBODY IF I REMEMBER CORRECTLY
2 OR JUST SOMEBODY VISITING ANOTHER PERSON AND THEY STEPPED IN
3 AND WITNESSED IT AND THIS MUST HAVE BEEN THE CASE.
4 Q. SO YOU HAVE SOME RECOLLECTION THAT THESE FOLKS MIGHT
5 HAVE BEEN VISITING SOMEBODY AT THE TIME THAT YOU SIGNED THIS
6 DOCUMENT?
7 A. I WOULD IMAGINE, THAT'S THE ONLY THING I CAN THINK ABOUT
8 IT.
9 Q. BUT THEY AT LEAST WITNESSED THIS DOCUMENT IT APPEARS ON
10 YOUR BEHALF; IS THAT CORRECT?
11 A. YES.
12 MR. STIRBA: THAT'S ALL. THANK YOU, SIR.
13 THE COURT: ANY REDIRECT?
14 REDIRECT EXAMINATION
15 BY MR. WILSON:
16 Q. WHAT WAS THE DATE THAT YOU WERE ADVISED YOUR MOTHER WAS
17 DYING?
18 A. I DO NOT RECALL A DATED PRIOR TO THE 7TH.
19 Q. OKAY. SO IT WAS ON THE 7TH WHEN YOU HAD THE
20 CONVERSATION WITH THE DOCTOR?
21 A. YES.
22 Q. WAS THAT THE FIRST TIME YOU WERE INFORMED TO YOUR
23 RECOLLECTION THAT YOUR MOTHER WAS DYING?
24 A. I -- I CAN'T SAY YES OR NO ON THAT. FOR SOME REASON IN
25 THE BACK OF MY MIND IT SEEMS TO ME WE WERE FEELING THAT
678
1 BECAUSE OF HER PROGRESSION THE LAST FEW DAYS THAT THAT WAS
2 PRETTY IMMINENT.
3 Q. OKAY.
4 MR. WILSON: THANK YOU, I HAVE NO FURTHER
5 QUESTIONS.
6 THE COURT: MAY THIS WITNESS BE EXCUSED?
7 MR. STIRBA: YES, YOUR HONOR.