Laurel Herbst, MD
7 LAUREL HERMANSON HERBST,
8 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
9 AS FOLLOWS:
10 DIRECT EXAMINATION
11 BY MR. STIRBA:
12 Q. DOCTOR, PLEASE STATE YOUR FULL NAME AND SPELL YOUR LAST
13 NAME, PLEASE.
14 A. IT'S LAUREL HERMANSON HERBST, H-E-R-B-S-T.
15 Q. AND WHERE DO YOU RESIDE?
16 A. IN SAN DIEGO, CALIFORNIA.
17 Q. AND, PRESENTLY, ARE YOU EMPLOYED?
18 A. YES.
19 Q. AND WOULD YOU TELL US, PLEASE, WHAT YOU DO FOR A LIVING?
20 A. I'M VICE-PRESIDENT OF MEDICAL AFFAIRS AT SAN DIEGO
21 HOSPICE. I'VE BEEN THE MEDICAL DIRECTOR THERE SINCE 1978.
22 Q. AND, GENERALLY, WHAT DO YOU DO IN YOUR CAPACITY AS
23 VICE-PRESIDENT OF SAN DIEGO HOSPICE?
24 A. I'M IN CHARGE OF ALL THE MEDICAL CARE FOR THE TERMINALLY
25 ILL PATIENTS THAT WE CARE FOR. I SUPERVISE THE OTHER
2967
1 PHYSICIANS, I TRAIN THE MEDICAL STUDENTS AND RESIDENTS FROM
2 THE UNIVERSITY AND THREE OR FOUR OTHER FACILITIES AROUND US.
3 Q. AND YOU HAVE AN M.D. DEGREE?
4 A. I DO.
5 Q. AND WOULD YOU TELL US, PLEASE, WHAT EDUCATION YOU'VE HAD
6 IN THE FIELD OF MEDICAL TRAINING?
7 A. I ATTENDED THE UNIVERSITY OF SOUTHERN CALIFORNIA,
8 RECEIVED MY M.D. IN 1969. I DID A STRAIGHT MEDICINE
9 RESIDENCY AT L.A. COUNTY U.S.C. MEDICAL CENTER, AND THEN
10 FINISHED INTERNAL MEDICINE AT THE SAME INSTITUTION IN 1972.
11 I COMPLETED A HEMATOLOGY/ONCOLOGY FELLOWSHIP IN 1975 AT THE
12 V.A. MEDICAL CENTER IN SAN FRANCISCO.
13 I AM SELF TAUGHT AS A PALLIATIVE CARE PHYSICIAN, AS
14 MOST OF US ARE AT THIS STAGE OF THE GAME; HOWEVER, I AM
15 BOARD CERTIFIED IN PALLIATIVE MEDICINE BY THE NEW BOARD FROM
16 THE AMERICAN BOARD OF HOSPICE AND PALLIATIVE MEDICINE.
17 Q. OKAY. TELL US, PLEASE, WHAT YOU MEAN BY PALLIATIVE
18 MEDICINE.
19 A. IT COMES -- PALLIATIVE COMES FROM THE LATIN WORD PALLIUM
20 WHICH MEANS TO COVER. AND IT MEANS TO AMELIORATE SYMPTOMS
21 OR MAKE PEOPLE FEEL BETTER WITHOUT ATTEMPTING TO CURE THE
22 DISEASE. IT'S A TERM THAT'S APPLIED TO END-OF-LIFE CARE AS
23 THE WHOLE BODY OF KNOWLEDGE THAT'S INTENDED TO MAKE PATIENTS
24 MORE COMFORTABLE.
25 Q. AND WHAT DO YOU MEAN THAT YOU HAVE BOARD CERTIFICATION
2968
1 IN THE FIELD OR AREA OF PALLIATIVE CARE?
2 A. THE AMERICAN BOARD OF HOSPICE AND PALLIATIVE MEDICINE
3 WAS ORGANIZED TO ASCERTAIN THE CREDENTIALS OF PHYSICIANS WHO
4 HELD THEMSELVES OUT TO BE SPECIALISTS IN PALLIATIVE
5 MEDICINE.
6 TO SIT FOR THE BOARD YOU HAVE TO HAVE A MINIMUM OF TWO
7 YEARS EXPERIENCE AND PROVE EXPERIENCE IN PATIENT CARE. YOU
8 ALSO, UNIQUELY TO THIS BOARD, ARE REQUIRED TO HAVE
9 RECOMMENDATIONS FROM NONPHYSICIANS THAT YOU'RE A NICE PERSON
10 AND CAN WORK IN A TEAM. THEN YOU SIT FOR A TEST AND THE
11 EXAM COVERS ALL OF THE MEDICAL CARE OF THESE PATIENTS.
12 Q. DO YOU HAVE OTHER BOARD CERTIFICATIONS IN THE FIELD OR
13 FIELDS OF MEDICINE?
14 A. I'M BOARD CERTIFIED IN INTERNAL MEDICINE AND IN
15 HEMATOLOGY.
16 Q. AND WHAT DOES -- WHAT IS ENTAILED IN TERMS OF YOUR BOARD
17 CERTIFICATION AS AN INTERNAL MEDICINE DOCTOR?
18 A. TO BE BOARD CERTIFIED IN INTERNAL MEDICINE YOU MUST
19 COMPLETE A CERTIFIED RESIDENCY IN INTERNAL MEDICINE, AND
20 PASS AN EXAM AFTER THEY GET RECOMMENDATIONS FROM YOUR
21 INSTRUCTORS IN THE TRAINING PROGRAMS.
22 Q. AND YOU MENTIONED HEMATOLOGY. WHAT AREA OF THE PRACTICE
23 IS THAT?
24 A. IT'S THE STUDY OF DISEASES RELATED TO THE BLOOD SYSTEM.
25 SO IT WOULD BE ANEMIAS, LEUKEMIAS, THINGS LIKE THAT. AGAIN,
2969
1 YOU MUST HAVE HAD A CERTIFIED RESIDENCY IN THAT AREA,
2 RECOMMENDATIONS FROM THE PEOPLE WHO TAUGHT YOU, AND THEN
3 PASS AN EXAM.
4 Q. NOW, YOU MENTIONED SAN DIEGO HOSPICE. WHAT GENERALLY --
5 WHAT KIND OF CARE DOES SAN DIEGO HOSPICE PROVIDE?
6 A. SAN DIEGO HOSPICE WAS ORGANIZED IN 1978 TO PROVIDE CARE
7 TO TERMINALLY ILL PATIENTS, NOT NECESSARILY JUST WITH
8 CANCER, BUT WITH ANY KIND OF DISEASE THAT CAN MAKE A PERSON
9 DIE. AND THE INTENTION WAS TO PROVIDE CARE FOR ABOUT THE
10 LAST SIX MONTHS OF LIFE, TO ENHANCE THE PATIENT'S QUALITY OF
11 LIFE THROUGH COMFORT CARE, AND SUPPORT OF PSYCHOSOCIAL AND
12 SPIRITUAL CARE AS WELL.
13 Q. NOW, YOU HAVE BEEN RETAINED AS AN EXPERT WITNESS IN THIS
14 CASE; IS THAT RIGHT?
15 A. I HAVE.
16 Q. AND YOU ARE PREPARED TO RENDER OPINIONS WITH RESPECT TO
17 CERTAIN RECORDS THAT YOU HAVE REVIEWED?
18 A. YES.
19 Q. COULD YOU JUST GENERALLY TELL THE JURY WHAT INFORMATION
20 YOU HAVE REVIEWED FOR PURPOSES OF YOUR TESTIMONY THIS
21 MORNING?
22 A. I WAS SENT THE MEDICAL RECORDS OF THE PATIENTS IN
23 QUESTION: LYDIA SMITH, JUDITH LARSEN, ENNIS ALLDREDGE,
24 ELLEN ANDERSON, AND MARY CRANE. AND THE RECORDS I REVIEWED
25 WERE FROM THE GEROPSYCHIATRIC UNIT OF DAVIS HOSPITAL AND
2970
1 MEDICAL CENTER. AND THEN YESTERDAY I WAS ABLE TO REVIEW
2 SOME OF THE PRIOR HOSPITAL RECORDS OF THESE PATIENTS AS
3 WELL.
4 Q. NOW, ARE THERE CERTAIN GUIDELINES IN THE FIELD OF
5 END-OF-LIFE CARE RELATING TO A DIAGNOSES OF A TERMINAL
6 CONDITION?
7 A. YES.
8 Q. AND WOULD YOU GENERALLY TELL US WHAT THOSE GUIDELINES
9 ARE?
10 A. THE GUIDELINES WERE BASICALLY CREATED FOR NONCANCER
11 PATIENTS IN 1995. THE GOVERNMENT THAT PAYS FOR HOSPICE CARE
12 FOR MEDICARE PATIENTS WAS CONCERNED SOME PATIENTS WERE
13 LIVING TOO LONG UNDER HOSPICE CARE AND WANTED TO KNOW HOW TO
14 TELL WHEN PATIENTS WERE TERMINALLY ILL. THEY BELIEVED THAT
15 CANCER PATIENTS WERE EASY TO TELL BECAUSE THEY HAD A KNOWN
16 PROGRESSION OF -- AND COURSE OF THE DISEASE.
17 THE GUIDELINES WERE CREATED TO TELL WHAT THE CURRENT
18 LITERATURE SHOWS WOULD PREDICT A TERMINAL ILLNESS IN A
19 NUMBER OF OTHER DISEASES LIKE CARDIAC DISEASE, PULMONARY
20 DISEASE, THE DEMENTIAS, LOU GEHRIG'S DISEASE AND SO ON.
21 Q. WHO CREATED THE GUIDELINES?
22 A. IT WAS A COMMITTEE FROM THE NATIONAL HOSPICE
23 ORGANIZATION WITH INPUT FROM THE HEALTH CARE FINANCING
24 ADMINISTRATION, MEDICARE BRANCH.
25 Q. AND WHEN YOU TALK ABOUT HEALTH CARE FINANCING
2971
1 ADMINISTRATION, MEDICARE BRANCH, ARE YOU RELATING TO THE
2 FEDERAL GOVERNMENT MEDICARE PROGRAM?
3 A. YES. IT'S THE PEOPLE WHO PAY FOR THE CARE.
4 Q. YOU TALKED ABOUT HOSPICE. PERHAPS MAYBE COULD YOU TELL
5 US PLEASE WHAT HOSPICE CARE MEANS AND WHAT IT ENTAILS?
6 A. HOSPICE CARE IS A SYSTEM OF CARE FOR TERMINALLY ILL
7 PATIENTS THAT WAS EVOLVED IN THE MODERN SENSE IN THE
8 MID-60'S, LATE 60'S IN ENGLAND. DR. CECILY SAUNDERS WAS THE
9 FOUNDER OF THE MODERN HOSPICE MOVEMENT, BUT WAS DRAWING ON
10 EXPERIENCE FROM OTHER PEOPLE WHEN SHE CREATED A SYSTEM THAT
11 WOULD MANAGE PAIN, WOULD MANAGE VOMITING, OTHER SYMPTOMS
12 LIKE THAT, AND PROVIDE AN OPPORTUNITY FOR CLOSURE, SPIRITUAL
13 CARE AND SO ON.
14 THE TERM HOSPICE IS ANOTHER LATIN DERIVED WORD.
15 H-O-S-P-E-S IN LATIN IS THE ROOT WORD FOR HOTEL,
16 HOSPITALITY, HOSPITAL, AND SO ON, A LOT OF WORDS WE NORMALLY
17 USE.
18 THE ORIGINAL HOSPICES IN THE MIDDLE AGES WERE WAY
19 STATIONS FOR PILGRIMS GOING TO THE HOLY LAND. AND SO THE
20 WORD WAS USED TO APPLY TO THE MODERN CARE AS THE PEOPLE WHO
21 WERE TRANSITIONING TO AN AFTERLIFE WERE CONSIDERED HOLY AND
22 SHOULD BE TREATED WITH MORE RESPECT.
23 THE CURRENT AND MODERN SYSTEM OF HOSPICE CARE IN THE
24 UNITED STATES IS ACCEPTED BY ALL MAJOR INSURANCE AGENCIES
25 NOW AS THE OPTIMUM WAY TO CARE FOR DYING PATIENTS.
2972
1 THE REASON THE SYSTEM WORKS IS THAT WE MEET ALL OF THE
2 HIEARCHY OF HUMAN NEED, NOT JUST THE PHYSICAL CARE, BUT THE
3 INFORMATION THAT PROVIDES SECURITY, THE SOCIAL SUPPORT
4 SYSTEMS THAT CREATE COMFORT FOR THE FAMILY, AND THE
5 SPIRITUAL SUPPORT FOR SELF-ACTUALIZATION OR THE -- THE
6 ANSWER TO THEIR QUESTION -- THAT THE PATIENT CAN ADDRESS THE
7 QUESTION, WHY AM I HERE.
8 Q. DOES MEDICATION PLAY A ROLE IN PROVIDING END-OF-LIFE
9 CARE OR HOSPICE CARE?
10 A. SYMPTOM MANAGEMENT IS ABSOLUTELY CRITICAL TO THE
11 ACHIEVEMENT OF THE OTHER HUMAN GOALS. UNTIL A PATIENT IS
12 NOT IN PAIN AND HAS STOPPED VOMITING AND HAS STOPPED BEING
13 SHORT OF BREATH, HE CANNOT ADDRESS ANY EXISTENTIAL ISSUES OR
14 EVEN SAY GOODBYE TO HIS FAMILY.
15 Q. AND DOES MORPHINE PARTICULARLY PLAY A ROLE IN TERMS OF
16 END-OF-LIFE CARE OR SYMPTOM RELIEF AT THE END OF ONE'S LIFE?
17 A. PAIN MANAGEMENT IS CONSIDERED THE FIRST GOAL FOR ALL
18 PATIENTS IN END-OF-LIFE CARE, AND THE WORLD HEALTH
19 ORGANIZATION RECOGNIZES MORPHINE AS THE GOAL STANDARD FOR
20 PAIN MANAGEMENT ON A WORLDWIDE BASIS FOR PALLIATIVE CARE.
21 Q. AND -- AND WHY IS IT, IN PARTICULAR, THAT MORPHINE IS
22 RECOGNIZED AS THE GOAL STANDARD IN END-OF-LIFE CARE?
23 A. IT IS PROBABLY THE OLDEST PAIN MEDICATION THAT WE HAVE
24 AVAILABLE. WE'VE USED IT BEYOND THE MEMORY OF ANY OF US IN
25 MEDICINE. WE KNOW HOW IT WORKS, WE KNOW ITS SIDE EFFECTS.
2973
1 IT'S READILY AVAILABLE THROUGHOUT THE WORLD. AND IT'S THE
2 STANDARD BY WHICH ALL OTHER PAIN MEDICATIONS ARE JUDGED WHEN
3 YOU LOOK AT CONVERSION TABLES OF HOW TO TRANSLATE DOSES FROM
4 ONE DRUG TO ANOTHER, IT'S ALWAYS BASED ON A MORPHINE
5 STANDARD.
6 Q. NOW, YOU -- YOU TALKED ABOUT RELIEF FROM SYMPTOMS.
7 COULD YOU JUST GENERALLY TELL US, PLEASE, THE KIND OF
8 SYMPTOMS THAT YOU TREAT AT END OF LIFE?
9 A. FIRST, PAIN, AND PREDOMINANTLY WE DO THAT WITH
10 MEDICATIONS. THEN WE USE OTHER MEDICATIONS TO TREAT THE
11 OTHER KINDS OF SYMPTOMS PATIENTS MAY HAVE AT THE END OF
12 LIFE. FOR MANY PEOPLE NAUSEA AND VOMITING IS AS NOXIOUS A
13 COMPLAINT AS PAIN. SHORTNESS OF BREATH, ANXIETY,
14 SLEEPLESSNESS, WEIGHT LOSS, LACK OF APPETITE, CONSTIPATION,
15 DIARRHEA, IT DEPENDS ON WHAT'S WRONG WITH THE PATIENT WHICH
16 SET OF SYMPTOMS THEY GET, BUT ALL PATIENTS HAVE A NUMBER OF
17 ISSUES.
18 NUMBER OF SITES OF PAIN MAY VARY. THE AVERAGE PATIENT
19 ADMITTED TO A HOSPICE PROGRAM HAS MORE THAN THREE DIFFERENT
20 CAUSES OF PAIN GOING ON AT ONE TIME. AND THEN YOU MULTIPLY
21 EACH OF THE SYMPTOMS BY MULTIPLE CAUSES AND YOU CAN SEE THAT
22 IT'S A VERY COMPLEX PROCESS OFTEN TO MAKE SURE THAT PATIENTS
23 ARE VERY COMFORTABLE.
24 Q. DOES MEDICARE PAY FOR HOSPICE BENEFITS OR END-OF-LIFE
25 CARE?
2974
1 A. YES.
2 Q. AND IS THERE A PARTICULAR TIME FRAME IN WHICH THOSE
3 BENEFITS ARE AVAILABLE?
4 A. THE PATIENT MUST HAVE A TERMINAL ILLNESS AND THE
5 PHYSICIAN HAS TO CERTIFY THAT THE PATIENT'S PROGNOSIS IS SIX
6 MONTHS OR LESS IF THE DISEASE RUNS ITS NORMAL COURSE.
7 Q. NOW, YOU'VE -- YOU'VE TOLD US ABOUT THE GUIDELINES.
8 A. UH-HUH.
9 Q. CAN YOU GIVE US AN EXAMPLE OR TELL US HOW THE GUIDELINES
10 ARE USED IN PROVIDING END-OF-LIFE CARE OR IN HOSPICE WORK?
11 A. IF WE WERE TO TAKE CARDIAC DISEASE, AS AN EXAMPLE,
12 PATIENTS WHO HAVE END STAGE HEART DISEASE ARE ELIGIBLE FOR
13 HOSPICE CARE IF THEIR PROGNOSIS IS GOING TO BE ABOUT SIX
14 MONTHS OR LESS IN THE NORMAL CIRCUMSTANCE.
15 THE WAY WE WOULD DETERMINE THAT PROGNOSIS IS TO
16 DETERMINE WHETHER THE PATIENT IS HAVING SYMPTOMS AT REST. A
17 PATIENT WHO HAS A DIAGNOSIS OF HEART DISEASE BUT IS ABLE TO
18 GET UP AND AROUND AND LEAD A NORMAL LIFE IS NOT TERMINALLY
19 ILL WITH THE PROGNOSIS OF SIX MONTHS OR LESS. IF A PATIENT
20 HAS DIFFICULTY BREATHING, EVEN WITH MINIMAL ACTIVITY LIKE
21 TALKING OR TRYING TO GET ACROSS THE ROOM TO THE BATHROOM,
22 THAT WOULD BE A SIGN THAT THE PATIENT IS SYMPTOMATIC AT
23 REST.
24 PATIENTS WHO HAVE SUCH SEVERE DISEASE THAT MEDICATION
25 FOR THE HEART DISEASE NO LONGER IMPROVES HIS OR HER
2975
1 CONDITION ARE CONCERNED TERMINALLY ILL.
2 SO THE CRITERIA FOR HEART DISEASE REQUIRE SYMPTOMS AT
3 REST, MAXIMAL THERAPY HAS FAILED OR HAS BEEN TRIED AND CAN'T
4 BE TOLERATED BY THE PATIENT, OR THERE ARE OTHER ISSUES LIKE
5 THAT THE BLOOD FLOW THROUGH THE HEART TO THE REST OF THE
6 BODY IS SO LOW THAT IT CAN'T SUSTAIN LIFE. THOSE PATIENTS
7 WOULD BE THEN ADMITTED TO HOSPICE CARE.
8 Q. ARE -- ARE THERE GUIDELINES THAT RELATE TO PATIENTS WHO
9 ARE SEVERELY DEMENTED?
10 A. YES, THERE ARE.
11 Q. AND -- AND JUST GENERALLY, HOW DO THOSE GUIDELINES WORK
12 IN TERMS OF A DETERMINATION OF A TERMINAL CONDITION?
13 A. THERE ARE A COUPLE OF FUNCTIONAL SCALES DEALING WITH
14 DEMENTIA THAT ARE APPLIED TO THESE PATIENTS. ONE IS CALLED
15 A FUNCTIONAL ASSESSMENT SCALE. AND WHEN YOU TALK ABOUT
16 FUNCTION IN A HUMAN, IT'S ALL OF THE THINGS THAT YOU DO
17 EVERY DAY. PATIENTS WHO HAVE A DIAGNOSIS OF MILD DEMENTIA,
18 BUT ARE STILL ABLE TO MAKE IT AT WORK, HAVE A FUNCTIONAL
19 ASSESSMENT OR A F.A.S. LEVEL 2. AND THEN AS --
20 Q. NOW, LET ME -- LET ME JUST SLOW YOU DOWN HERE. IN TERMS
21 OF YOUR REFERENCE TO F.A.S. OR FUNCTIONAL ASSESSMENT 2,
22 YOU'RE GOING TO HAVE TO EXPLAIN TO US WHAT THAT MEANS AND
23 WHERE THAT'S COMING FROM.
24 A. RIGHT. THAT'S WHERE I WAS TRYING TO GO. I'M SORRY.
25 Q. OKAY. I'M SORRY.
2976
1 A. I DIDN'T WANT TO TELL THEM FUNCTIONAL ASSESSMENT 7 UNTIL
2 I EXPLAINED WHAT WAS NORMAL.
3 Q. OH, OKAY. ALL RIGHT.
4 A. OKAY. YOU AND I ARE A 1. WE DON'T HAVE ANY SYMPTOMS.
5 A 2, WE HAVE MINIMAL SYMPTOMS. A 3, THE BOSS PROBABLY HAS
6 FIRED YOU BECAUSE YOU'RE MAKING TOO MANY MISTAKES AT WORK,
7 BUT YOU STILL GET AROUND THE HOUSE AND YOU CAN COOK YOUR
8 LUNCH AND YOU CAN DRESS YOURSELF AND TAKE YOUR OWN SHOWERS
9 AND YOU'RE NOT A PROBLEM TO YOUR FAMILY.
10 WHEN YOU START TO GET TO A FUNCTION LEVEL 4 IN
11 ALZHEIMER'S DISEASE OR OTHER DEMENTIAS, YOU BEGIN TO BE
12 NOTICEABLY FORGETFUL TO EVERYONE AROUND YOU. SOMETIMES YOU
13 GET DIRTY CLOTHES ON AND YOU FORGET YOU WORE THEM YESTERDAY.
14 YOU -- YOU KIND OF LEAVE THE STOVE BURNING IF YOU TRIED TO
15 MAKE A GRILLED CHEESE SANDWICH. YOU KNOW, LITTLE FORGETFUL
16 EPISODES, BUT YOU'RE STILL TALKATIVE AND COMMUNICATING WITH
17 PEOPLE.
18 WHEN THE FUNCTION LEVEL 5 COMES, YOU MAY HAVE TROUBLE
19 DECIDING NORMAL DAILY ROUTINES. YOU NEED TO BE TALKED
20 THROUGH GETTING DRESSED, TOLD TO GO TO THE BATHROOM. YOU
21 WOULD GET LOST IF YOU LEFT THE HOUSE.
22 AND A FUNCTION LEVEL 6, YOU BEGIN TO BE INCONTINENT OF
23 URINE AND BOWELS SO THAT YOU WET YOUR PANTS, YOU CAN'T MAKE
24 IT TO THE BATHROOM TO HAVE A BOWEL MOVEMENT. YOU'RE HAVING
25 DIFFICULTY CARRYING ON CONVERSATIONS. YOU HAVE TO BE
2977
1 REMINDED TO EAT. PEOPLE SIT FOOD IN FRONT OF YOU AND THEY
2 SAY TAKE YOUR SPOON, YOU KNOW, EAT YOUR MACARONI AND CHEESE,
3 THAT KIND OF THING.
4 WHEN ONE REACHES A FUNCTION LEVEL 7, THEY HAVE
5 SUBDIVIDED IT INTO SEVERAL SUBCATEGORIES, BEGINNING WITH AT
6 A FUNCTION 7(A) THE PATIENT CAN MAYBE SPEAK SIX MEANINGFUL
7 WORDS A DAY. IF I ASK YOU HOW YOU ARE AND YOU SAY FINE,
8 THAT WOULD COUNT AS ONE BECAUSE YOUR NEXT STEP WOULD BE TO
9 BABBLE AT ME ABOUT SOMETHING CRAZY.
10 AT A FUNCTION LEVEL 2 THAT SPEECH LEVEL IS DOWN TO
11 PERHAPS ONE OR TWO MEANINGFUL WORDS IN A DAY, NO MORE.
12 AT A FUNCTION LEVEL 3, YOU'RE NO LONGER SPEAKING AND
13 YOU ACTUALLY HAVE DIFFICULTY PHYSICALLY WITH BEING ABLE TO
14 SIT. YOU CAN'T SIT UP IN A CHAIR WITHOUT BEING SUPPORTED.
15 YOU NEED TO BE TAKEN CARE OF DAY AND NIGHT. IT'S LIKE THE
16 STATE OF A BABY AT THAT POINT.
17 AND THEN THAT PROGRESSES TO LATER WHERE THE PATIENT CAN
18 NO LONGER EVEN SMILE PHYSICALLY, DEVELOPS CONTRACTURES SO
19 THAT THE MUSCLES ARE TIGHT, THE ARMS CAN'T BE EXTENDED, THE
20 LEGS CAN'T BE EXTENDED. AND THOSE PATIENTS THEN TEND TO
21 HAVE A LOT OF COMPLICATIONS LIKE BED SORES AND PNEUMONIA,
22 BLADDER INFECTIONS, THINGS THAT THEIR WHOLE BODY SYSTEM IS
23 JUST FAILING FROM THE LACK OF BEING ABLE TO PARTICIPATE IN
24 THEIR CARE.
25 Q. CAN YOU -- CAN YOU TELL US WHERE THE -- THE FUNCTION
2978
1 SCALE THAT YOU'VE JUST TESTIFIED TO ORIGINATED FROM OR WAS
2 DEVELOPED OUT OF?
3 A. IT WAS DEVELOPED PRIMARILY IN THE VETERAN'S
4 ADMINISTRATION MEDICAL SYSTEM TO HELP ASSESS THE PROGRESS OF
5 ALZHEIMER'S PATIENTS IN THAT SYSTEM.
6 Q. NOW, YOU'VE SEEN A LITTLE CHART WHICH DEPICTS CERTAIN
7 GUIDELINES REFERRING TO DEMENTIA; IS THAT RIGHT?
8 A. YES.
9 Q. AND WOULD THAT ASSIST IN ILLUSTRATING YOUR TESTIMONY IF
10 WE DISPLAYED THAT TO THE JURY?
11 A. YES.
12 Q. ALL RIGHT.
13 A. THIS CHART WAS TAKEN FROM THE GUIDELINES THAT WERE
14 PUBLISHED BY THE NATIONAL HOSPICE ORGANIZATION WITH THE
15 SUPPORT OF THE GOVERNMENT TO HELP HOSPICE PROGRAMS DECIDE
16 WHEN TO ADMIT DEMENTIA PATIENTS TO HOSPICE CARE.
17 Q. NOW, I'M HOLDING THIS UP, DOCTOR, AND I HOPE YOU CAN SEE
18 IT FROM WHERE YOU ARE.
19 A. RIGHT.
20 Q. BUT IT HAS AT THE TOP, DETERMINING DEMENTIA PROGNOSIS.
21 AND WHAT IS THAT REFERRING TO?
22 A. THAT IS FOR PATIENTS WHO ARE -- TO DETERMINE WHETHER
23 THEY'RE ELIGIBLE FOR HOSPICE CARE, WHETHER THEIR PROGNOSIS
24 IS SIX MONTHS OR LESS.
25 Q. AND WOULD THAT PROGNOSIS RELATE TO A TERMINAL PROGNOSIS?
2979
1 A. SIX MONTHS OR LESS PROGNOSIS IS CONSIDERED A TERMINAL
2 CONDITION, YES.
3 Q. AND THE FIRST THING IT HAS HERE, IT SAYS, THE PATIENT
4 SHOULD SHOW ALL THE FOLLOWING CHARACTERISTICS. AND ONE:
5 UNABLE TO AMBULATE WITHOUT ASSISTANCE. WHY IS THAT
6 SIGNIFICANT?
7 A. IT SHOWS THE PROGRESS OF THE BRAIN DAMAGE FROM THE
8 DEMENTIA IS BEGINNING TO AFFECT THE MOTOR FUNCTIONS FOR THE
9 PATIENT. SO THAT A PATIENT CAN'T GET UP AND WALK AROUND
10 WITHOUT BEING HELD ON TO AND SUPPORTED IN SOME WAY.
11 Q. IS -- IS -- IS DEMENTIA A TERMINAL ILLNESS OR A
12 TREATABLE ILLNESS?
13 A. DEMENTIA IS NOT A TREATABLE ILLNESS IN THE CURRENT
14 SENSE. WE HAVE SOME MEDICATIONS NOW THAT MAY PROLONG THE
15 COURSE OF THE DISEASE AND SLOW THE PROGRESS OF THE DEMENTIA
16 FOR A WHILE, BUT IT ULTIMATELY IS A TERMINAL ILLNESS.
17 Q. AND THEN WE HAVE: UNABLE TO DRESS WITHOUT ASSISTANCE.
18 WHY IS THAT SIGNIFICANT?
19 A. AGAIN, IT'S THE MOTOR DIFFICULTY, PLUS THE LACK OF
20 DECISION-MAKING CAPACITY THAT THE PATIENTS HAVE.
21 Q. UNABLE TO BATHE PROPERLY. WHY IS THAT SIGNIFICANT?
22 A. BECAUSE THEY -- THEY DON'T KNOW WHAT THEY'RE DOING, THEY
23 CAN'T GET IN AND OUT OF A SHOWER WITHOUT HELP, THEY NEED
24 SOMEONE TO ACTUALLY WASH THEM OR WASH THEIR HAIR.
25 Q. URINARY AND FECAL INCONTINENCE. AND THAT'S AN INABILITY
2980
1 TO CONTROL YOUR BOWEL AND BLADDER; IS THAT RIGHT?
2 A. RIGHT.
3 Q. AND WHY -- WHY IS THAT PHYSIOLOGICAL EVENT SIGNIFICANT
4 IN TERMS OF A TERMINAL PROGNOSIS?
5 A. IT'S ONE OF THE STAGES THAT HAPPENS THAT SHOWS THAT THE
6 DISEASE IS PROGRESSING. WHEN PEOPLE NO LONGER CAN MAKE IT
7 TO THE BATHROOM, WHEN THEY NEED TO HAVE DIAPERS OR CATHETERS
8 AND THEY NEED TO HAVE SOMEONE CLEANING UP AFTER THEM, IT
9 MEANS THAT THEIR DISEASE IS GETTING WORSE. THE BRAIN IS NO
10 LONGER GIVING THEM THE PROPER SIGNALS TO MAINTAIN THAT
11 FUNCTION.
12 Q. AND THEN THERE'S A REFERENCE IN TERMS OF INCONTINENCE.
13 IT SAYS: OCCASIONALLY OR MORE FREQUENTLY OVER THE PAST
14 WEEKS.
15 A. PEOPLE DON'T GO FROM COMPLETELY CONTINENT TO COMPLETELY
16 INCONTINENT OVERNIGHT. PEOPLE, WHEN THEY HAVE DEMENTIA,
17 WILL START HAVING ACCIDENTS. AND WHEN WE GO FROM THE
18 HISTORY WHEN YOU TALK TO A FAMILY AND SAY WELL, THEY HAD AN
19 ACCIDENT LAST WEEK, BUT THAT WAS THE FIRST TIME. THAT'S
20 BEGINNING TO ALERT YOU THAT YOU'RE REACHING THIS STAGE, BUT
21 THAT -- NOT NECESSARILY THAT YOU'RE THERE YET. WHEN THEY
22 SAY WELL, IN THE LAST MONTH WE'VE HAD FIVE EPISODES OF
23 INCONTINENCE AND TWO OF THEM WERE LAST, YOU KNOW, THURSDAY,
24 YOU BEGIN TO GET THE CLUE THAT THINGS ARE GETTING
25 PROGRESSIVELY WORSE.
2981
1 AND SO IT'S NOT JUST COMPLETE INCONTINENCE, BUT IT'S
2 THE PROGRESSION TOWARDS COMPLETE INCONTINENCE THAT SIGNALS
3 US IT'S TIME TO TALK ABOUT HOSPICE CARE FOR THIS TERMINALLY
4 ILL DEMENTED PATIENT.
5 Q. AND THEN I THINK YOU'VE TESTIFIED A LITTLE BIT ABOUT THE
6 NEXT ONE: UNABLE TO SPEAK OR COMMUNICATE MEANINGFULLY. WHY
7 IS THAT SIGNIFICANT IN TERMS OF A TERMINAL PROGNOSIS?
8 A. PATIENTS WITH DEMENTIA LOSE THE CAPACITY TO COMMUNICATE,
9 PROBABLY, WE THINK, BECAUSE THEY LOSE THE CAPACITY TO
10 UNDERSTAND AND INTERPRET THE WORLD AND WHAT'S GOING ON
11 AROUND THEM. SOME MAY LOSE THE CAPACITY TO COMMUNICATE
12 BECAUSE THEY CAN'T THINK OF THE WORDS. AND ALL OF THOSE
13 THINGS END UP WITH A PATIENT WHO DOES NOT COMMUNICATE AND
14 DOES NOT RESPOND TO THE ENVIRONMENT, DOESN'T RESPOND TO
15 VERBAL STIMULI, DOESN'T SEEM TO UNDERSTAND OR -- OR INITIATE
16 ANY KIND OF COMMUNICATION.
17 Q. AND THEN THE NEXT POINT: HAS PRESENCE OF MEDICAL
18 COMPLICATIONS. ARE -- ARE MEDICAL COMPLICATIONS EXPECTED IN
19 TERMS OF THE STAGE WE'RE TALKING ABOUT IN A SEVERELY
20 DEMENTED PERSON?
21 A. YES.
22 Q. AND -- AND WHY -- TELL THE JURY WHY THAT IS.
23 A. AS A PATIENT BECOMES LESS ABLE TO PROVIDE FOR HIS OWN
24 NEEDS AND NEEDS TO BE FED, NEEDS TO BE BATHED, DIAPERED, AND
25 SO ON, THE BODY'S IMMUNE SYSTEM BECOMES LESS EFFECTIVE AND
2982
1 THE PATIENTS TEND TO HAVE A HIGH NUMBER OF WHAT WE CALL
2 INTERCURRENT OR ON TOP OF TYPE OF INFECTIONS. SO THESE
3 PATIENTS OFTEN HAVE PNEUMONIA, THEY OFTEN HAVE BLADDER
4 INFECTIONS, SOMETIMES THEY HAVE FEVERS THAT WE DON'T
5 UNDERSTAND WHY THEY HAVE THE FEVERS. MANY OF THEM GET
6 PNEUMONIA BECAUSE THEY INHALE THE FOOD AS THEY'RE EATING,
7 THEY DON'T SWALLOW PROPERLY. ALL OF THE NERVES GOING TO THE
8 CHEWING/SWALLOWING MECHANISM MAY BE AFFECTED, AND THE
9 PATIENTS THEN, WHEN THEY'RE SWALLOWING, ACTUALLY WHAT WE
10 CALL ASPIRATE OR INHALE -- WHAT YOU DO WHEN YOU CHOKE, ONLY
11 THEY GET IT IN THEIR LUNGS AND GET PNEUMONIA.
12 Q. ARE THOSE MEDICAL COMPLICATIONS AS YOU'VE JUST GENERALLY
13 DESCRIBED, DID YOU DETERMINE THAT SOME OF THOSE EXISTED WITH
14 RESPECT TO THE FIVE PATIENT --
15 A. YES.
16 Q. -- RECORDS THAT YOU REVIEWED?
17 A. YES.
18 Q. AND THEN WE HAVE: THE PRESENCE OF MEDICAL COMORBID
19 CONDITIONS OF SUFFICIENT SEVERITY TO WARRANT MEDICAL
20 TREATMENT. COULD YOU TELL US, PLEASE, WHAT THE TERM
21 "COMORBID" MEANS?
22 A. COEXISTING. COMING ALONG WITH, BUT NOT NECESSARILY
23 RELATED TO. SO A PATIENT MAY HAVE MORE THAN ONE DISEASE. A
24 LOT OF PATIENTS WILL HAVE HEART DISEASE, WHO ARE OLDER, AND
25 SO THEY'LL HAVE A PRIMARY HEART DISEASE AND THEY'LL ALSO
2983
1 HAVE DEMENTIA. OR THEY MAY HAVE EMPHYSEMA AND HAVE
2 DEMENTIA. OR THEY MAY HAVE EMPHYSEMA AND HEART DISEASE AND
3 DEMENTIA. AND THESE THINGS KIND OF THEM COMPLICATE EACH
4 OTHER. YOU CAN IMAGINE THAT IF YOU HAVE SEVERE EMPHYSEMA
5 AND YOU HAVE SUCH BAD DEMENTIA THAT YOU'RE STARTING TO
6 CHOKE, IT MAY, IN FACT, MAKE YOUR EMPHYSEMA MUCH WORSE.
7 AND -- AND VICE VERSA, IF YOU HAVE BAD EMPHYSEMA AND TROUBLE
8 BREATHING, IT MAY MAKE YOUR DEMENTIA WORSE.
9 SO THE THINGS KIND OF INTERACT TO MAKE YOU MUCH MORE
10 ILL THAN YOU WOULD HAVE BEEN WITH ONLY ONE OF THE DISEASES
11 ALONE.
12 Q. WOULD HOSPITALIZATIONS COME WITHIN THE CATEGORY OF
13 SUFFICIENT SEVERITY TO WARRANT MEDICAL TREATMENT?
14 A. YES. ABSOLUTELY.
15 Q. AND THEN YOU HAVE COMORBID; THAT IS, OCCURRING AT THE
16 SAME TIME --
17 A. RIGHT.
18 Q. -- CONDITIONS ASSOCIATED WITH DEMENTIA. THESE ARE
19 MEDICAL CONDITIONS. YOU -- ONE IS ASPIRATION PNEUMONIA. DO
20 YOU SEE THAT'S ON THE CHART?
21 A. RIGHT.
22 Q. WOULD YOU TELL US WHAT ASPIRATION PNEUMONIA IS?
23 A. WELL, THAT'S WHERE THE PATIENT WHO'S -- CANNOT SWALLOW
24 PROPERLY, LOSES THE REFLEX, AND FOOD IS ACTUALLY -- ENTERS
25 THE AIRWAY, ENTERS THE TRACHEA, AND IT GETS SOMEWHERE INTO
2984
1 THE LUNGS AND THEN A PATIENT GETS AN INFECTION ASSOCIATED
2 WITH THAT FOOD GETTING IN THE LUNG. ANY TIME YOU HAVE ORAL
3 CONTENTS IN THE LUNG YOU CAN GET PNEUMONIA BECAUSE THERE ARE
4 A LOT OF BACTERIA IN YOUR MOUTH AND -- AND WHEN IT GETS TO
5 THE LUNG, IT CAN CAUSE A PNEUMONIA.
6 Q. AND THEN THE NEXT ONE SAYS: AN UPPER URINARY TRACT
7 INFECTION. WOULD YOU TELL US, PLEASE, WHAT THAT IS?
8 A. WELL, WE CONSIDER THE WHOLE URINARY TRACT SYSTEM,
9 EVERYTHING FROM THE KIDNEYS THROUGH THE URETERS TO THE
10 BLADDER. AND WHEN YOU HAVE A BLADDER INFECTION IT'S
11 CONSIDERED A LOWER URINARY TRACT INFECTION. IT'S KIND OF
12 GEOGRAPHIC, YOU KNOW, YOU STAND UP AND YOUR KIDNEYS ARE
13 HIGHER THAN YOUR BLADDER.
14 IN PATIENTS WHO HAVE TROUBLE TAKING THEMSELVES TO THE
15 BATHROOM, THEY OFTEN WILL NOT URINATE EVEN WHEN THEIR
16 BLADDERS ARE BEGINNING TO FILL. AND THE URINE CAN BACK UP
17 THE URETER AND INTRODUCE BACTERIA INTO THE KIDNEYS. THE
18 KIDNEYS ARE FULL OF RICH BLOOD VESSELS AND A LOT OF
19 NUTRIENTS FOR BACTERIA, SO WHEN BACTERIA GET IN THE KIDNEYS
20 THEY DEVELOP A SEVERE KIDNEY INFECTION OR WHAT WE CALL
21 PYELONEPHRITIS.
22 Q. IS A -- A URINARY TRACT INFECTION IN A SEVERELY DEMENTED
23 PATIENT MORE DIFFICULT IN TERMS OF ITS CONSEQUENCE OR
24 SIGNIFICANCE THAN IS PERHAPS SOMEBODY WHO IS NOT DEMENTED?
25 A. THE PATIENT PROBABLY WILL NOT BE ABLE TO COMPLAIN OF THE
2985
1 SYMPTOMS OF PAIN OR FEELING THE NEED TO URINATE FREQUENTLY.
2 WE OFTEN HAVE OUR FIRST SIGN THAT THE PATIENT HAS A SEVERE
3 INFECTION WHEN THE PATIENT DEVELOPS A FEVER AND MAY HAVE
4 CHILLS WITH IT. AND THAT'S A SIGN THEN THAT THE BACTERIA IN
5 THE KIDNEY HAVE ACTUALLY GOTTEN INTO THE BLOOD STREAM, WHAT
6 WE CALL SEPTICEMIA. BLOODSTREAM INFECTIONS IN ELDERLY
7 PATIENTS ARE VERY OFTEN LETHAL AND MAY BE THE CAUSE OF DEATH
8 FOR MANY OF THESE PATIENTS.
9 Q. OKAY. THE NEXT ONE IS -- THAT'S -- THAT'S THAT
10 SEPTICEMIA YOU DISCUSSED?
11 A. SEPTICEMIA. YES. THAT MEAN A BLOODSTREAM INFECTION.
12 THAT CAN HAPPEN EITHER FROM ENTRY THROUGH THE LUNGS AND THEN
13 THE BACTERIA GET INTO THE BLOODSTREAM, OR IT CAN HAPPEN
14 THROUGH THE KIDNEYS WHERE THE BACTERIA GET INTO THE
15 BLOODSTREAM. AND THERE ARE MANY BLOOD VESSELS IN BOTH OF
16 THESE AREAS THAT IT'S NOT VERY DIFFICULT FOR THE BACTERIA TO
17 CROSS INTO THE BLOODSTREAM WITHIN THESE TWO ORGANS.
18 Q. YOU NEXT HAVE DECU --
19 A. DECUBITUS ULCERS?
20 Q. YES.
21 A. BED SORES.
22 Q. I COULD SAY ULCERS. I COULDN'T SAY THE FIRST WORD.
23 A. BED SORES. THAT'S A FANCY WORD FOR BED -- BED SORES.
24 Q. OKAY.
25 A. PRESSURE ULCERS. WHEN YOU LIE IN ONE POSITION FOR A
2986
1 LONG TIME YOU WILL, FROM THE PRESSURE, CUT OFF THE
2 CIRCULATION IN THE AREAS WHERE THE BONE MEETS THE MATTRESS.
3 AS YOU LOSE WEIGHT WITH A TERMINAL ILLNESS AND AS YOU BECOME
4 MALNOURISHED WITH NOT BEING ABLE TO EAT WELL, YOU TEND TO
5 HAVE LESS AND LESS PADDING BETWEEN THE BONE AND THE
6 MATTRESS. AND YOU KNOW THAT OUR ELDERLY PEOPLE TEND TO HAVE
7 FRAGILE SKIN ANYWHERE.
8 SO WHERE THE HIP BONES OR THE SACRUM OR TAILBONE MEET
9 THE MATTRESS, THERE TENDS TO BE A CUTOFF OF CIRCULATION JUST
10 FROM THE PRESSURE. AND THE SKIN WILL DIE FROM THAT AND THE
11 PATIENT WILL DEVELOP A BED SORE. THIS IS ANOTHER PLACE
12 WHERE THE GERMS CAN GET INTO THE BLOODSTREAM. BUT IN AND OF
13 THEMSELVES THEY'RE AN INDICATION OF THE WHOLE BODY BEGINNING
14 TO BREAK DOWN.
15 Q. AND THEN YOU HAVE: FEVER RECURRENT AFTER ANTIBIOTICS.
16 WOULD YOU EXPLAIN MEDICALLY WHAT THAT SIGNIFIES AND WHY
17 THAT'S AN -- AN EXPECTATION?
18 A. WHEN THE -- THE VETERAN'S ADMINISTRATION WAS LOOKING AT
19 THEIR POPULATION OF PATIENTS WITH DEMENTIA, THEY FOUND THAT
20 EPISODES OF FEVER TWO TIMES WITHIN A YEAR WERE INDICATIVE
21 THAT THE PATIENT WAS TERMINALLY ILL, REGARDLESS OF THE CAUSE
22 OF THE FEVER. AND MANY TIMES THESE PATIENTS HAVE INTERNAL
23 INFECTIONS THAT WE CAN'T REALLY SEE BY ANY OF OUR X-RAYS OR
24 BY OUR EXAMINATIONS AND -- AND THEY -- THEY GET WALLED OFF,
25 LIKE WE CALL AN ABSCESS, AND THE ORAL ANTIBIOTICS OR
2987
1 BLOODSTREAM ANTIBIOTICS DON'T GET TO THESE INFECTIONS. AND
2 SO EVEN THOUGH THEY'VE HAD ANTIBIOTICS, THEY MAY HAVE
3 RECURRING FEVERS.
4 Q. AND THEN WE HAVE THE NEXT POINT, IT SAYS: DIFFICULTY
5 SWALLOWING FOOD OR REFUSAL TO EAT. WHY IS THAT SIGNIFICANT
6 AND WHY DOES THAT DEVELOP, CONCERNING SEVERELY DEMENTED
7 PATIENTS WHO HAVE A TERMINAL PROGNOSIS?
8 A. THE NATURAL COURSE OF ALZHEIMER'S DISEASE AND OTHER
9 DEMENTIAS IS THAT BOTH MECHANICAL DIFFICULTIES SWALLOWING, A
10 MOTOR PROBLEM WHERE THE PATIENT JUST CAN'T INITIATE THE
11 SWALLOW REFLEX PROPERLY; AND LOSS OF INTEREST IN FOOD, THEY
12 NO LONGER EXPERIENCE THE SENSATION OF HUNGER AND THE DESIRE
13 TO EAT OR THE ABILITY TO GET FOOD INTO THEM -- THEIR OWN
14 MOUTHS, HAPPEN AT ABOUT THE SAME TIME AS THE BRAIN
15 DETERIORATES WITH THE DEMENTIA. IF YOU DON'T EAT FOR A
16 PROLONGED PERIOD OF TIME, IT'S ONE OF THE MECHANISMS OF
17 DEATH FOR THE HUMAN BEING.
18 SO THESE PATIENTS, IN ESSENCE, LOSE WEIGHT, BECOME
19 INCREASINGLY SUSCEPTIBLE TO INFECTIONS AND THESE BED SORES.
20 AND EVEN IF ALL OF THAT DOESN'T OCCUR, PATIENTS WHO DON'T
21 EAT WILL EVENTUALLY DIE.
22 Q. DO YOU KNOW WHY THAT SYMPTOM OF DIFFICULTY IN SWALLOWING
23 OR DISINTEREST IN FOOD DEVELOPS AT SOME POINT CONCERNING A
24 SEVERELY DEMENTED PATIENT?
25 A. I DON'T THINK ANYBODY REALLY UNDERSTANDS THE PRECISE
2988
1 MECHANISM. WE KNOW THAT IT OCCURS AND IT'S PART OF THE
2 ADVANCING DEMENTIA THAT IS ASSOCIATED WITH A TOTAL LACK OF
3 INTEREST IN THE OUTSIDE WORLD, NOT JUST IN FOOD. THEY --
4 THEY DON'T COMMUNICATE AT THAT POINT, THEY DON'T -- THEY
5 DON'T INTERACT. THEY DON'T RESPOND TO NORMAL STIMULI. YOU
6 CAN SHAKE THESE PEOPLE AND THEY DON'T SEEM TO RECOGNIZE THAT
7 THERE'S ANYTHING IN THE ENVIRONMENT.
8 SO WE'RE NOT -- I DON'T THINK WE KNOW EXACTLY WHICH
9 PART OF THE BRAIN GOT AFFECTED BY THE DEMENTIA PROBLEM, BUT
10 WE KNOW THAT IT OCCURS.
11 THE SIGNIFICANCE OF IT BEING ON THIS PARTICULAR LIST AS
12 A -- AN ELEMENT OF PROGNOSIS FOR HOSPICE CARE IS THAT ONE OF
13 THE THINGS THAT HAPPENS IN OUR SOCIETY IS THAT PATIENTS AND
14 THEIR CAREGIVERS THAT ARE ASSIGNED BY THE PATIENTS HAVE THE
15 RIGHT TO MAKE SOME DECISIONS ABOUT THEIR END-OF-LIFE CARE.
16 AND WE CALL THAT THE MEDICAL ETHICAL PRINCIPLE OF AUTONOMY.
17 SO WE --
18 MR. WILSON: YOUR HONOR, I THINK I'M GOING TO
19 INTERPOSE AN OBJECTION HERE. IT'S IN NARRATIVE FORM. I
20 WOULD APPRECIATE A QUESTION.
21 THE COURT: OKAY.
22 MR. STIRBA: SURE.
23 Q. (BY MR. STIRBA) DOCTOR, YOU WERE EXPLAINING THE
24 IMPORTANCE OF THE GUIDELINES IN TERMS OF SOME AUTONOMY OR
25 MEDICAL DIRECTIONS; IS THAT RIGHT?
2989
1 A. YES.
2 Q. COULD YOU EXPLAIN TO US, PLEASE, WHY THE GUIDELINES HAVE
3 SOME RELATIONSHIP TO THE AUTONOMY AND THE DIRECTIONS?
4 A. PATIENTS AND THEIR SURROGATE DECISION MAKERS MAY DECIDE
5 NOT TO HAVE ARTIFICIAL FEEDINGS IMPOSED. TUBE FEEDINGS OR
6 FORCE FEEDINGS OF PATIENTS ARE ONE OF THE THINGS PEOPLE HAVE
7 A RIGHT TO SAY, I DON'T WANT THIS.
8 Q. AND -- AND WHEN YOU SAY THEY HAVE A RIGHT TO SAY THAT,
9 COULD YOU TELL US WHAT YOU MEAN IN THE CONTEXT OF WHY YOU
10 SAY THEY HAVE A RIGHT TO THAT, WHERE THAT COMES FROM?
11 A. WE WRITE ADVANCE DIRECTIVES AND WE HAVE THE -- THE
12 GUIDANCE IN OUR MEDICAL SYSTEM TO HAVE ADVANCE DIRECTIVES.
13 THERE'S A FEDERAL LAW THAT EVERY HEALTH CARE INSTITUTION HAS
14 TO ASK YOU IF YOU HAVE ADVANCE DIRECTIVES. HAVE YOU MADE
15 DECISIONS ABOUT YOUR CARE. IF YOU SAY IN YOUR ADVANCE
16 DIRECTIVE, I DON'T WANT TUBE FEEDINGS, OR THE PERSON YOU
17 ASSIGN TO MAKE DECISIONS FOR YOU WHEN YOU'RE NOT ABLE TO
18 TALK FOR YOURSELF SAYS NO TUBE FEEDINGS AND SOMEBODY DOES
19 THAT TO YOU, IT'S ASSAULT AND BATTERY.
20 SO IT HAS THE FORCE OF LAW IN THE UNITED STATES THAT
21 YOU CAN MAKE THOSE DECISIONS PRIOR TO NEEDING TO MAKE THEM
22 AND PEOPLE HAVE TO ABIDE BY THEM.
23 Q. NOW, WHAT YOU'VE JUST TESTIFIED CONCERNING, THESE
24 GUIDELINES --
25 A. UH-HUH.
2990
1 Q. -- WHICH IS ON THIS ILLUSTRATIVE CHART, DO THESE
2 GUIDELINES AND WHAT YOU'VE TESTIFIED TO, DO THEY RELATE TO
3 THE GUIDELINES YOU WERE TESTIFYING TO PREVIOUSLY CONCERNING
4 MEDICARE PAYMENT FOR HOSPICE CARE?
5 A. YES. THESE ARE RIGHT OUT OF THAT BOOK.
6 Q. DOCTOR, IN YOUR PRACTICE IN TREATING PATIENTS AT END OF
7 LIFE OR PROVIDING END-OF-LIFE CARE, ARE YOU FAMILIAR WITH
8 RECOGNIZED SYMPTOMS OF THE DEATH AND DYING PROCESS?
9 A. YES.
10 Q. AND COULD YOU GENERALLY JUST TELL US, PLEASE, WHY THESE
11 SYMPTOMS ARE IMPORTANT IN TERMS OF PROVIDING END-OF-LIFE
12 CARE?
13 A. THERE ARE TWO LEVELS OF IMPORTANCE FOR RECOGNIZING THAT
14 PEOPLE ARE DYING. ONE IS TO TREAT WHATEVER SYMPTOMS MAY BE
15 BOTHERING THE PATIENT SO THAT IF THERE'S PAIN OR -- OR
16 SHORTNESS OF BREATH, YOU'D TREAT IT.
17 AND THE SECOND IS TO BE ABLE TO INFORM THOSE WHO LOVE
18 THE PATIENT THAT THE PATIENT IS DYING AND MEET THEIR NEED
19 FOR INFORMATION AND PREDICTABILITY.
20 Q. AND WHERE -- WHERE DOES THE INFORMATION ABOUT THESE
21 SIGNS AND SYMPTOMS COME FROM?
22 A. EXPERIENCE. THE EXPERIENCE OF MANY, MANY PHYSICIANS IN
23 THIS COUNTRY AND OTHERS OVER THE COURSE OF THE LAST 30
24 YEARS, A NUMBER OF BOOKS HAVE BEEN PUBLISHED, A NUMBER OF
25 LECTURES HAVE BEEN GIVEN, AND A NUMBER OF EXAMPLES AS WE
2991
1 TEACH EACH OTHER ABOUT, OH, YES, NOW LOOK AND SEE, THIS IS
2 WHAT IS HAPPENING TO THE PATIENT.
3 MOST HOSPICE PROGRAMS PRODUCE INFORMATION TO HAND TO
4 THE FAMILIES TO SAY, HERE'S WHAT YOU WILL SEE WHEN YOUR
5 LOVED ONE APPROACHES DEATH. AND WE ALL HAVE THOSE KINDS OF
6 GUIDELINES TO HAND TO FAMILIES THAT KIND OF DOCUMENT
7 STEP-BY-STEP WHAT WILL HAPPEN TO PEOPLE AS THEY'RE DYING.
8 Q. IS THAT AN IMPORTANT RESPONSIBILITY, IN TERMS OF
9 PROVIDING THAT INFORMATION, IN TERMS OF END-OF-LIFE CARE?
10 A. YES.
11 Q. AND WHY IS THAT?
12 A. WE NEED, AS HUMANS, NOT JUST PHYSICAL CARE, BUT
13 PREDICTABILITY AND INFORMATION. IN ORDER TO PROVIDE THE
14 OPPORTUNITY FOR PEOPLE TO SAY GOODBYE -- IRA BYOCK, WHO'S A
15 SPECIALIST IN PALLIATIVE MEDICINE IN MISSOULA, MONTANA SAID
16 WE NEED FIVE THINGS. WE NEED TO SAY: I LOVE YOU, YOU LOVE
17 ME, I FORGIVE YOU, YOU FORGIVE ME, AND GOODBYE. AND THAT
18 THE OPTIMUM DEATH THAT OCCURS FOR ANY HUMAN IS TO HAVE
19 ACCOMPLISHED THOSE WITH EACH LOVED ONE AND TO BE
20 COMFORTABLE.
21 Q. NOW, ALSO, YOU'VE SEEN ANOTHER LITTLE CHART WHICH
22 ILLUSTRATES THOSE SIGNS AND SYMPTOMS OF THE DEATH AND DYING
23 PROCESS, HAVE YOU?
24 A. YES.
25 Q. AND WOULD THAT ALSO ASSIST YOU WITH RESPECT TO YOUR
2992
1 TESTIMONY CONCERNING THOSE SIGNS AND SYMPTOMS?
2 A. YES.
3 Q. OKAY. I GUESS WE'RE OKAY. NOW, I'M -- I'M HOLDING UP A
4 LITTLE ILLUSTRATION. IT HAS AT THE TOP PHYSICAL SIGNS AND
5 SYMPTOMS, AND THESE ARE THINGS THAT ROUTINELY ARE OBSERVED
6 IN THE DEATH AND DYING PROCESS; IS THAT RIGHT?
7 A. YES.
8 Q. FIRST OF ALL, THE FIRST ONE IS SLEEPING. AND WE KNOW
9 WHAT THAT IS. CAN YOU TELL US HOW THAT SYMPTOM RELATES IN
10 TERMS OF THE DEATH AND DYING PROCESS?
11 A. PEOPLE WHO ARE NEARING DEATH TEND TO SLEEP MORE AND MORE
12 OF THE DAY. THE AVERAGE PERSON WHO IS TERMINALLY ILL AND
13 NOT YET QUITE DYING PROBABLY SLEEPS 10 TO 14 HOURS A DAY.
14 BUT AS PATIENTS APPROACH DEATH, THERE'S LESS AND LESS ENERGY
15 AVAILABLE TO STAY AWAKE AND THESE PATIENTS TEND TO BE NOTED
16 TO HAVE HOUR OR TWO OF WAKEFULNESS, AND THEN HALF HOUR OR SO
17 WAKEFULNESS, SO THAT THE TOTAL AMOUNT OF TIME SPENT SLEEPING
18 IN 24 HOURS INCREASES UNTIL IT'S ALL OF THE 24 HOURS.
19 Q. DO WE KNOW, BASED UPON EXISTING MEDICAL EXPERTISE AND
20 LITERATURE, WHY THAT OCCURS AT THE END OF LIFE?
21 A. NO.
22 Q. AND THEN YOU HAVE FOOD AND FLUID DECREASE. COULD YOU
23 EXPLAIN THAT AND ITS SIGNIFICANCE AT END OF LIFE?
24 A. AS THE HUMAN BODY BEGINS TO SHUT DOWN TOWARDS DEATH,
25 THEY -- THE METABOLIC PRODUCTS THAT NORMALLY ARE CLEARED
2993
1 AWAY VERY QUICKLY TEND TO ACCUMULATE BECAUSE THINGS LIKE THE
2 LIVER IS DYING AND THE KIDNEYS ARE DYING. NOTHING HAPPENS
3 IN AN INSTANT. SO THAT THESE CHEMICALS THAT BUILD UP IN THE
4 SYSTEM TAKE AWAY THE PERSON'S APPETITE AND TAKE AWAY THE
5 PERSON'S THIRST. THAT MAY BE ONE OF THE ELEMENTS
6 RESPONSIBLE FOR THE SLEEPINESS, BUT WE'RE NOT SURE OF THAT.
7 PEOPLE HAVE VERY LITTLE INTEREST IN FOOD. PEOPLE TEND
8 TO LOSE THEIR INTEREST IN THE PEOPLE AROUND THEM MORE AND
9 MORE AND THEN THEY GET LESS AND LESS INTERESTED EVEN IN
10 THEMSELVES, AND THEY'RE MORE INTERESTED IN JUST BEING QUIET.
11 Q. THEN YOU HAVE URINE DECREASE. EXPLAIN THAT SIGNIFICANCE
12 AND WHY THAT OCCURS.
13 A. AS -- AS YOU TAKE IN LESS AND LESS FLUID, YOUR BODY
14 TENDS NOT TO PRODUCE AS MUCH URINE. THE KIDNEYS ARE NOT
15 WORKING AS WELL SO THE PATIENT URINATES LESS AND LESS OFTEN
16 AND SMALLER AND SMALLER AMOUNTS AS THE DEATH APPROACHES.
17 Q. INCONTINENCE?
18 A. THERE IS NO CONTROL OVER THE BLADDER OR BOWEL IN THESE
19 PATIENTS. THEY WILL HAVE TO BE EITHER PADS OR DIAPERS OR
20 OTHER WAYS OF KEEPING THEM CLEAN.
21 Q. THE NEXT ONE SAYS RESTLESSNESS. WOULD YOU PLEASE DEFINE
22 THAT FOR US?
23 A. AS PATIENTS APPROACH DEATH A LOT OF THE CHEMICALS THAT
24 ARE BUILDING IN THE SYSTEM MAY CAUSE THEM TO BE TWITCHY OR
25 IRRITABLE. WE DEFINE A SYNDROME CALLED TERMINAL
2994
1 RESTLESSNESS WHICH IS PRIMARILY THE PATIENT IS MOANING OR
2 MAYBE THRASHING AROUND A BIT IN BED. WE USUALLY TREAT THIS
3 SYMPTOM WITH MEDICATIONS TO CALM THE PATIENT. IT'S PROBABLY
4 A METABOLIC PHENOMENON, ALTHOUGH NO ONE IS ENTIRELY SURE
5 WHAT THE UNDERLYING CAUSE OF THE RESTLESSNESS IS.
6 Q. THE NEXT ONE IS CONGESTION. COULD YOU EXPLAIN TO US
7 WHAT THAT IS CONCERNING?
8 A. THAT'S A NICE WAY OF CALLING DEATH RATTLE, A COMMON
9 NAME. BUT AS PATIENTS APPROACH DEATH THEY BECOME UNABLE TO
10 CLEAR THE SECRETIONS FROM THEIR -- BACK OF THEIR THROATS OR
11 THEIR UPPER AIRWAY AND THE PHLEGM BUILDS UP AND WHEN THEY
12 BREATHE IT MAKES A GURGLING NOISE AND IT SOUNDS LIKE THEY'RE
13 DROWNING. WE HAVE MEDICATIONS THAT WILL CUT DOWN ON THESE
14 SECRETIONS.
15 WE DON'T THINK THAT THIS SYMPTOM BOTHERS PATIENTS VERY
16 MUCH, BUT IT CERTAINLY BOTHERS FAMILIES WHO ARE SITTING WITH
17 A DYING PATIENT. AND SO WE TRY TO CLEAR THIS NOISE UP SO
18 THAT THE FAMILIES ARE A LITTLE MORE COMFORTABLE.
19 Q. IS AGITATION OR THAT RESTLESSNESS, IS THAT ALSO
20 SOMETHING THAT BOTHERS FAMILIES?
21 A. VERY MUCH.
22 Q. AND WOULD YOU HELP US TO UNDERSTAND WHY THAT IS --
23 A. THE PATIENTS --
24 Q. -- FROM YOUR EXPERIENCE?
25 A. -- LOOK LIKE THEY'RE SUFFERING FROM PAIN OR THEY LOOK
2995
1 LIKE THEY'RE SUFFERING FROM ANXIETY OR -- OR BAD DREAMS.
2 IT'S -- THE IMPULSE IS ALWAYS TO BE COMFORTING TO THE PEOPLE
3 WHO ARE THAT RESTLESS BECAUSE THEY LOOK LIKE THEY'RE VERY
4 UNHAPPY WHEN THEY'RE THRASHING AROUND AND -- AND MOANING,
5 SOME EVEN YELL OUT.
6 Q. AND THEN YOU HAVE COOLNESS. WHAT IS THAT REFERRING TO?
7 A. AS THE CIRCULATION SHUTS DOWN AND THE BLOOD PRESSURE
8 FALLS, THE EXTREMITIES GET LESS BLOOD FLOW AND THE
9 TEMPERATURE OF THE EXTREMITIES FALLS.
10 Q. AND WHEN YOU SAY "EXTREMITIES," WHAT ARE YOU REFERRING
11 TO?
12 A. HANDS AND FEET.
13 Q. DO WE KNOW WHY THAT OCCURS?
14 A. THE BLOOD PRESSURE IS LOWER, THERE'S LESS CIRCULATION
15 AND SO THE TEMPERATURE -- CORE TEMPERATURE CAN'T GET TO THE
16 EXTREMITIES. SO ACTUALLY IT IS COOLING FROM LACK OF
17 CIRCULATION.
18 Q. THEN YOU HAVE CHANGE IN BREATHING PATTERN. WHAT CHANGE
19 ARE YOU REFERRING TO?
20 A. AS -- AS THE CORTEX BECOMES LESS FUNCTIONAL --
21 Q. LET ME -- LET ME STOP YOU RIGHT THERE.
22 A. PART OF THE BRAIN.
23 Q. YOU'RE GOING TO HAVE TO EXPLAIN WHAT THE CORTEX IS.
24 A. THE PART OF YOUR BRAIN THAT DOES YOUR THINKING BECOMES
25 LESS AND LESS FUNCTIONAL. WE MOVE DOWN THE BRAIN TO THE
2996
1 LOWER OR MORE PRIMITIVE BRAIN CENTERS THAT CONTROL THE
2 PHYSIOLOGY OF BREATHING. THE MOST PRIMITIVE CENTERS ARE NOT
3 SO GOOD AT KEEPING EVEN RHYTHMS AND SO YOU'LL SEE CHANGES IN
4 BREATHING PATTERNS IN DYING PATIENTS THAT INCLUDE A
5 PHENOMENON WE CALL CHEYNE-STOKES RESPIRATION. YOU'LL HEAR
6 ABOUT THIS WITH SOME OF THE PATIENTS.
7 CHEYNE-STOKES ARE TWO MEN THAT DESCRIBED THIS, SO
8 THERE'S NO SIGNIFICANCE TO THE NAME OTHER THAN IT'S NAMED
9 AFTER DOCTORS AND THEY LIKE TO NAME THINGS AFTER THEMSELVES.
10 BUT IT'S A PATTERN OF BREATHING THAT WAXES AND WANES SO
11 THAT YOU HAVE VERY SHALLOW, VERY SLOW BREATHS, AND THEN IT
12 GETS RAPIDLY BIGGER AND DEEPER AND FASTER UNTIL IT REACHES A
13 PEAK, AND THEN IT SLOWS BACK DOWN AGAIN. SO YOU KIND OF SEE
14 A PATIENT BREATHING -- AND YOU'RE NOT EVEN SURE THEY'RE
15 BREATHING. THEY MAY HAVE SUCH SLOW RESPIRATIONS YOU KIND OF
16 WAIT BETWEEN BREATHS, AND JUST BARELY BREATHING. AND THEN
17 THEY GET FASTER AND FASTER AND DEEPER AND DEEPER AND THEN IT
18 GOES BACK DOWN AND IT WAXES AND WANES IN A FAIRLY EVEN
19 PATTERN. AND THAT'S CHEYNE-STOKES BREATHING, AND THAT'S A
20 VERY BRAIN STEM TYPE OF BREATHING. IT'S VERY PRIMITIVE
21 REFLEX-TYPE BREATHING.
22 SOME PATIENTS WILL JUST GET SLOWER AND NOT GO THROUGH
23 THE CHEYNE-STOKE EPISODE. SOME PATIENTS, BECAUSE THEY HAVE
24 TERMINAL FEVER, WILL ACTUALLY BREATHE FASTER FOR A WHILE
25 BECAUSE THEIR BODY TEMPERATURE, CORE TEMPERATURE IS HIGH AND
2997
1 SO THE REFLEX IS TO BREATHE FASTER.
2 SO THE NUMBER OF REFLEXES THAT CAN TAKE OVER, THE
3 IMPORTANT PART IS THAT IT'S REFLEX BREATHING AND IT'S NOT
4 THE NORMAL BREATHING PATTERNS THAT WE SEE IN -- IN NORMAL
5 PEOPLE.
6 Q. THAT PATTERN THAT YOU'VE JUST DESCRIBED, IS IT
7 DISTINGUISHABLE FROM, FOR EXAMPLE, A PATTERN THAT MAYBE
8 MANIFESTED AS A RESULT OF DEPRESSION CAUSED BY MEDICATION?
9 A. OH, YES. YES BECAUSE PATIENTS --
10 Q. TELL US, PLEASE, WHY THAT IS.
11 A. PATIENTS WHO HAVE RESPIRATORY DEPRESSION FROM MEDICATION
12 DON'T HAVE THE ACCELERATED DEEP BREATHING PHASE. THEY TEND
13 TO BREATHE VERY EVENLY, SLOWLY, AND THEY ACTUALLY MAY
14 BREATHE DEEPLY AND SLOWLY RATHER THAN SHALLOWLY AND SLOWLY.
15 SO THAT CHEYNE-STOKES RESPIRATION DOES NOT LOOK AT ALL LIKE
16 MEDICATION INDUCED DEPRESSION OF RESPIRATION.
17 Q. AND THEN YOU HAVE CONFUSION. WHAT -- WHAT -- WHAT DO
18 YOU MEAN BY CONFUSION?
19 A. AS PATIENTS APPROACH DEATH, THE METABOLIC CHANGES, THE
20 DECLINING BLOOD PRESSURES, THE OTHER THINGS THAT ARE GOING
21 ON WITHIN THE BODY TEND TO CREATE A STATE OF CONFUSION FOR
22 THE PATIENT, EVEN MAYBE BEFORE THEY GET TO THE SLEEPING 24
23 HOURS A DAY. SO THAT IF YOU SEE PATIENTS WHO HAVE SOME
24 COMBINATIONS OF THESE THINGS WITH CONFUSION AND INCONTINENCE
25 AND DECREASING URINE, YOU MAY BEGIN TO THINK THAT THEY'RE
2998
1 ENTERING THE VERY LAST STAGES OF LIFE.
2 Q. DOCTOR, BASED UPON YOUR REVIEW OF THE RECORDS AND THE
3 AVAILABLE GUIDELINES AND OTHER EXPERTISE THAT YOU HAVE, WERE
4 YOU ABLE TO FORM AN OPINION AS TO WHETHER OR NOT ANY OF THE
5 PATIENTS IN THIS CASE WERE SUFFERING FROM A TERMINAL
6 CONDITION UPON ENTERING THE DAVIS HOSPITAL?
7 A. YES, I WAS.
8 Q. AND COULD YOU TELL US, PLEASE, WHAT YOUR OPINION WAS AND
9 IS?
10 A. ALL OF THE PATIENTS SHOWED MOST OF THE SIGNS OF TERMINAL
11 ILLNESS WITH DEMENTIA, SO THAT I BELIEVED THAT ALL THE
12 PATIENTS WOULD HAVE BEEN CANDIDATES FOR HOSPICE CARE, FOR
13 PALLIATIVE CARE, FOR THE INTERVENTIONS AT END OF LIFE THAT
14 WE WOULD NORMALLY ASSOCIATE WITH THE END-OF-LIFE CARE.
15 Q. NOW, YOU HAVE SOME BINDERS TO YOUR LEFT THERE.
16 A. YES, SIR.
17 Q. THE GRAY BINDERS, AND THEY ACTUALLY ARE THE MEDICAL
18 RECORDS FROM THE DAVIS HOSPITAL WHICH YOU HAVE REVIEWED, BUT
19 THOSE ARE THE BINDERS IN EVIDENCE. I WOULD LIKE TO GO
20 THROUGH EACH PATIENT WITH YOU, IF I COULD --
21 A. UH-HUH.
22 Q. -- IN TERMS OF YOUR OPINION AS TO THE NATURE OF THEIR
23 TERMINAL CONDITION.
24 FIRST, I'D LIKE TO ASK YOU ABOUT JUDITH LARSEN, AND
25 MAYBE YOU CAN FIND THAT THERE. DO YOU HAVE THAT BINDER IN
2999
1 FRONT OF YOU?
2 A. I DO.
3 Q. AND YOUR OPINION CONCERNING JUDITH LARSEN IS WHAT,
4 RELEVANT TO WHETHER OR NOT SHE HAD SUFFERED OR WAS SUFFERING
5 A TERMINAL CONDITION UPON ADMISSION?
6 A. I BELIEVE SHE WAS TERMINALLY ILL WITH DEMENTIA.
7 Q. OKAY. COULD YOU TELL US, PLEASE, WHY YOU HAVE SUCH AN
8 OPINION?
9 A. WHEN YOU LOOK AT THE N.H.O. GUIDELINES I REFERRED TO
10 EARLIER, SHE IS OVER 70, WHICH IS ONE OF THE CRITERIA THEY
11 WOULD LIKE TO SEE. HER FUNCTIONAL ASSESSMENT STATUS WAS A
12 7(A); THAT IS, SHE SPOKE ABOUT SIX WORDS OR LESS PER DAY.
13 WAS INCONTINENT AND REQUIRED FULL CARE. AND SHE WAS
14 EXPERIENCING MEDICAL COMPLICATIONS OF HER ILLNESS.
15 Q. AND DID YOU HAVE A CHANCE TO REVIEW SPECIFICALLY THE
16 NURSING NOTES FROM THE 29TH OF DECEMBER THROUGH THE DAY THAT
17 SHE DIED?
18 A. YES.
19 Q. AND IN DOING THAT, WERE YOU ABLE TO DETERMINE CERTAIN
20 SIGNS AND SYMPTOMS THAT INDICATED THAT SHE WAS IN THE DEATH
21 AND DYING PROCESS AT THAT TIME?
22 A. YEAH.
23 Q. (MR. STIRBA TURNS ON ELMO.) WHILE WE ARE WARMING UP,
24 DOCTOR, LET ME DIRECT YOUR ATTENTION TO A NURSING NOTE
25 STARTING ON 12/29/95 AT 2200 HOURS. THERE IS A REFERENCE TO
3000
1 A FIVE-HOUR CYCLE OF SEVERE EMESIS. DO YOU SEE THAT?
2 A. YES.
3 Q. AND IS THAT SOMETHING THAT IS SYMPTOMATIC TO YOU OF THE
4 DEATH AND DYING PROCESS?
5 A. THE SYMPTOM OF EMESIS IN THIS PATIENT WOULD BE A SYMPTOM
6 OF A COMORBID OR INTERCURRENT CONDITION, THE MEDICAL
7 COMPLICATIONS THAT WE WOULD SEE IN A PATIENT WHO HAS
8 DEMENTIA AND THEN BEGINS TO DIE FROM SOME OTHER ILLNESS.
9 Q. WERE YOU ABLE TO DETERMINE THE CAUSE OF THE -- THIS
10 CYCLE OF THROWING UP THAT IS CHARTED BY THE NURSE?
11 A. NO.
12 Q. YOU ALSO SEE DOWN TOWARDS THE BOTTOM THERE IS AN
13 ADDITIONAL REFERENCE TO HER HAVING DIFFICULTY AND VOMITING.
14 WAS THE LENGTH OF THE TIME THAT SHE VOMITED SIGNIFICANT TO
15 YOU?
16 A. IT LOOKS LIKE SHE WAS CONTINUING TO VOMIT, DESPITE THE
17 EFFORTS OF THE NURSES TO MAKE HER MORE COMFORTABLE. AND AT
18 THE BEGINNING OF THIS VOMITING THEY DESCRIBED THAT WHAT SHE
19 WAS BRINGING UP WAS CLEAR WITH BITS OF FOOD. AND THEN LATER
20 SHE BEGAN TO HAVE WHAT LOOKED LIKE PARTIALLY DIGESTED BLOOD
21 IN THE VOMITING. THEY CALLED THE DOCTOR SEVERAL TIMES
22 DURING THIS EPISODE AND HE WAS COMING IN TO SEE HER.
23 Q. THE NEXT NURSES' NOTE FOR THAT TIME PERIOD, THERE'S A
24 REFERENCE DOWN AT THE BOTTOM TO -- UNDER BEHAVIOR AT 7:30:
25 PATIENT UNRESPONSIVE TO -- IT LOOKS LIKE --
3001
1 A. VERBAL.
2 Q. -- VERBAL STIMULI, AND THEN HEART RATE REGULAR.
3 WHY ARE THOSE CHART NOTES SIGNIFICANT TO YOU IN YOUR
4 ASSESSMENT OF SYMPTOMS OF DEATH AND DYING?
5 A. WELL, WHEN WE WENT THROUGH THE LIST OF THINGS ABOUT WHAT
6 PATIENTS SHOWED AS THEY BECAME CLOSER TO DEATH AND THE
7 SLEEPING MORE OR BEING LESS RESPONSIVE TO THE ENVIRONMENT,
8 PATIENTS WHO ARE DYING BECOME LESS ABLE TO RESPOND AND ENTER
9 WHAT WE CALL A COMA. AND I BELIEVE THAT THIS PATIENT WAS
10 WHAT WE CALL SEMICOMATOSE OR ALMOST IN A COMA. SHE WAS ABLE
11 TO OPEN HER EYES OCCASIONALLY, BUT WAS NOT ABLE TO RELATE
12 THAT TO THE ENVIRONMENT. SHE DIDN'T RESPOND TO WHEN THEY
13 MOVED HER, SHE DIDN'T RESPOND TO WHEN THEY SHOOK HER OR
14 TALKED TO HER.
15 Q. THE NEXT ENTRY, WHICH IS ALSO ON 12/30, AT THE TOP IT
16 HAS: LUNG SOUNDS DECREASE IN BASES BILATERALLY. AND THEN
17 WE HAVE THOSE TWO DOCTORS, CHEYNE AND STOKING (SIC), RIGHT?
18 A. THAT'S RIGHT.
19 Q. TELL US, PLEASE, WHY THOSE REFERENCES ARE SIGNIFICANT TO
20 YOU IN YOUR ANALYSIS OF THE DEATH AND DYING PROCESS.
21 A. PATIENTS ONLY EXHIBIT CHEYNE-STOKE RESPIRATIONS WHEN
22 THEY HAVE SEVERE HEAD INJURIES OR WHEN THEY'RE DYING. SO
23 THIS IS A CLEAR INDICATION THAT THIS PATIENT WAS DYING AT
24 THIS TIME. NOW, THEY CAN GO ON FOR SEVERAL DAYS WITH THIS
25 TYPE OF RESPIRATIONS COMING AND GOING, BUT PATIENTS WHO ARE
3002
1 CHEYNE-STOKING WITHOUT ACTUALLY JUST HAVING BEEN, YOU KNOW,
2 HIT IN THE HEAD IN A CAR ACCIDENT OR SOMETHING, ARE
3 EXPERIENCING THAT BRAIN STEM TYPE OF RESPIRATION WHICH
4 INDICATES THAT THE BRAIN IS CLOSING DOWN AND THE PATIENT IS
5 DYING.
6 Q. NOW, THERE'S A REFERENCE HERE AT 2100 HOURS BY NURSE --
7 AND I THINK THAT'S MS. KLEY: CALLED SON, GAVE -- I THINK
8 THAT SAY STATUS -- REPORT ON PATIENT'S CONDITION. SON,
9 MERLIN, STRESSED THAT, QUOTE, ONLY WISHED TO KEEP HER
10 COMFORTABLE.
11 DOES THAT HAVE ANY SIGNIFICANCE TO YOU IN TERMS OF
12 PROVIDING END-OF-LIFE CARE?
13 A. THROUGHOUT THIS PATIENT'S CARE THE SON WAS THE SURROGATE
14 DECISION MAKER, SPOKESPERSON FOR THIS PATIENT, AND HAD
15 REPEATEDLY MADE STATEMENTS AND SIGNED DOCUMENTS THAT HE
16 WANTED NO AGGRESSIVE INTERVENTIONS IF THE PATIENT WERE
17 DYING. HE DIDN'T WANT VENTILATORS OR CARDIAC RESUSCITATION
18 OR TUBE FEEDINGS. HE ONLY WANTED COMFORT CARE FOR HIS
19 MOTHER. AND HE REITERATED THAT AT THIS TIME AND SEVERAL
20 TIMES DURING HER CARE.
21 Q. WHAT DOES COMFORT CARE MEAN IN THE CONTEXT OF
22 END-OF-LIFE CARE?
23 A. MEANS MANAGING THE SYMPTOMS SO THAT THE PATIENT DOESN'T
24 EXPERIENCE DISCOMFORT: PREVENTING AND TREATING PAIN,
25 PREVENTING AND TREATING SHORTNESS OF BREATH, TREATING THE
3003
1 VOMITING, STOPPING THE ANXIETY, PROVIDING A SUPPORTIVE
2 ENVIRONMENT.
3 Q. DOES COMFORT CARE INCLUDE MEDICATIONS?
4 A. USUALLY.
5 Q. NOW, DOWN AT THE BOTTOM OF THIS PAGE, WHICH IS ON THE
6 30TH, THERE'S: MONITORED FREQUENTLY AND CLOSELY.
7 IS THAT SIGNIFICANT TO YOU?
8 A. IT MEANS THAT THE NURSING STAFF WAS AWARE THAT THIS
9 PATIENT WAS NOT IN HER USUAL STATE OF -- OF HEALTH AND WAS
10 NEARING DEATH. IT DOESN'T REQUIRE A PHYSICIAN'S ORDER FOR A
11 NURSE TO INCREASE HER SURVEILLANCE OF A PATIENT. AND TO
12 NOTE THAT IN A NURSING NOTE MEANS I'M REALLY WORRIED THAT
13 THIS PATIENT IS DYING, IN A SENSE.
14 AND SO I -- I THOUGHT IT WAS VERY SIGNIFICANT THAT THE
15 NURSES HAD PICKED UP HOW CRITICALLY ILL THIS PATIENT WAS AT
16 THIS POINT AND WERE -- WERE CAREFULLY WATCHING WHAT WAS
17 GOING ON.
18 Q. THIS IS A CONTINUATION OF A NURSING NOTE, ONCE AGAIN, ON
19 DECEMBER 30, '95. I CALL YOUR ATTENTION TO -- IT LOOKS LIKE
20 UP AT THE TOP: PATIENT CLEANSED -- I THINK THAT SAYS TO
21 RESPONSE. HEART RATE TACHY AND IRREGULAR, RESPIRATIONS
22 EVEN.
23 DID I READ THAT SORT OF CORRECTLY?
24 A. YES.
25 Q. WHAT IS -- WHAT DOES IT MEAN WHEN IT SAYS HEART RATE
3004
1 TACHY AND IRREGULAR?
2 A. HER HEART'S BEATING FASTER THAN NORMAL. TACHY IS AN
3 ABBREVIATION FOR TACHYCARDIA WHICH MEANS RAPID HEART RATE,
4 AND THAT THE RHYTHM WAS NOT REGULAR. THIS PATIENT HAD KNOWN
5 CARDIAC DISEASE AND HAD EPISODES OF ATRIAL FIB, SO THIS WAS
6 AN IRREGULAR. IT WASN'T LUB DUB, LUB DUB, LUB DUB. IT WAS
7 LUB DUB, LUB DUB DUB DUB DUB, YOU KNOW, KIND OF OFF AND ON,
8 AND IT WAS VERY FAST.
9 Q. YOU -- YOU USED A TERM AND I THINK IT WAS HARD TO
10 UNDERSTAND. YOU SAID ATRIAL FIB.
11 A. IT'S --
12 Q. WOULD YOU PLEASE EXPLAIN WHAT THAT MEANS?
13 A. -- THE PACEMAKER OF THIS PATIENT'S HEART, THE NORMAL
14 PACEMAKER, THE PHYSIOLOGIC PACEMAKER WAS NOT WORKING
15 CORRECTLY. AND INSTEAD OF THE ATRIUM CONTRACTING BEFORE
16 EACH HEART BEAT, IT WAS FLUTTERING AND JUST WIGGLING, NOT
17 EFFECTIVELY PUMPING THE BLOOD. SO THE NORMAL, NATURAL
18 PACEMAKER WAS INTERRUPTED.
19 ATRIAL FIBRILLATION IN AND OF ITSELF IS NOT A LETHAL
20 PROBLEM FOR MOST PEOPLE AND MANY OF US WALK AROUND AND TAKE
21 MEDICATION TO CONTROL THE HEART RATE. BUT OTHER THINGS CAN
22 HAPPEN TO THE HEART WHEN THE PATIENT HAS ATRIAL FIBRILLATION
23 THAT MAKE IT A NEAR LETHAL DISASTER FOR SOME PEOPLE. THEY
24 GET BLOOD CLOTS IN THE HEART WHICH THEN GET FIRED OFF AND
25 CAUSE STROKES IN THE BRAIN AND THINGS LIKE THAT.
3005
1 Q. NOW, THERE'S A REFERENCE HERE THAT THE NURSE CHARTED:
2 RESPIRATIONS EVEN, NONLABORED, SHALLOW.
3 WHAT SIGNIFICANCE DOES THAT HAVE THAT IT WAS CHARTED IN
4 THAT FASHION?
5 A. THIS WAS PRIOR TO THE EPISODE OF CHEYNE-STOKE
6 RESPIRATIONS THAT WERE NOTED. AND THIS MEANS THAT THE
7 PATIENT WASN'T YET IN THAT CLOSE TO DEATH STATE, THAT THE
8 PATIENT WAS QUIET AND WAS BREATHING FAIRLY NORMALLY. THAT'S
9 WHAT YOU WOULD DESCRIBE AS A NORMAL BREATHING PATTERN.
10 Q. IN FACT, YOU'RE QUITE RIGHT. IT LOOKS LIKE THIS ENTRY
11 IS AT 9:20 --
12 A. YES. AND THE CHEYNE-STOKES --
13 Q. -- ON THE 30TH AND --
14 A. -- WERE NOTED AT 1650.
15 Q. -- THE CHEYNE-STOKES -- RIGHT.
16 OKAY. NOW, ONCE AGAIN, THERE'S A REFERENCE AT 11:30
17 ABOUT THE FAMILY'S STATEMENTS THEY -- IT SAYS: WANT D.N.R.
18 STATUS MAINTAINED, COMFORT MEASURES GIVEN.
19 WHAT IS D.N.R. STATUS?
20 A. D.N.R. IS AN ABBREVIATION FOR DO NOT RESUSCITATE. AND
21 IT'S ONE OF THE ADVANCE DIRECTIVES CATEGORIES OF SAYING I
22 DON'T WANT YOU TO RESTART MY HEART IF IT STOPS. I DON'T
23 WANT YOU TO DO CARDIAC COMPRESSIONS, AND I DON'T WANT YOU TO
24 PUT ME ON A VENTILATOR.
25 RESUSCITATION IS A COMPLEX PROCESS THAT IS -- INCLUDES
3006
1 A NUMBER OF -- OF ATTEMPTS OF TRYING TO RESTART BREATHING
2 AND HEARTBEAT. AND WHAT THEY'RE SAYING BY DO NOT
3 RESUSCITATE IS IF I DIE, LET ME GO.
4 Q. THIS IS, ONCE AGAIN, ANOTHER NURSES' NOTE FOR JUDITH
5 LARSEN. AND IT APPEARS THIS IS ON 12/31, THE NEXT DAY, AND
6 THERE'S AN ENTRY AT THE TOP WHERE THE NURSE HAS SAID:
7 BEHAVIOR, PATIENT HAS -- HAS BEEN UNRESPONSIVE THIS SHIFT.
8 DOES THAT HAVE ANY SIGNIFICANCE TO YOU IN TERMS OF THE
9 PROCESS YOU'RE DESCRIBING?
10 A. AGAIN, THE PATIENT IS EXHIBITING THAT SHE IS IN COMA OR
11 NEARING COMA.
12 Q. AND THEN YOU HAVE SOME VITAL SIGNS TAKEN HERE. DO THOSE
13 VITAL SIGNS HAVE ANY SIGNIFICANCE TO YOU AS CHARTED BY THE
14 NURSE?
15 A. ONE OF THE THINGS THAT WE NOTED EARLIER ABOUT IMPENDING
16 DEATH IS THAT THE BODY CAN EITHER BECOME COOL OR THEN THE
17 PATIENT CAN HAVE A TERMINAL FEVER. AND A BODY TEMPERATURE
18 OF 96.7 IS LOW, SO THAT THIS PATIENT'S METABOLIC PROCESSES
19 WERE BEGINNING TO CLOSE DOWN. AND THE INDICATION WITH THAT
20 TEMPERATURE IS THAT THE PATIENT IS SHUTTING DOWN.
21 AND LATER YOU CAN SEE THAT SHE DOES THEN DEVELOP A
22 FEVER WHICH CAN ALSO THEN BE AN INFECTION AT THE END OF
23 LIFE. SO THOSE ARE BOTH INDICATORS THAT THIS PATIENT WAS
24 DYING.
25 Q. NOW, AFTER THAT 96.7, IT SAYS: M.S. 5 MILLIGRAMS I.M.
3007
1 GIVEN.
2 WHAT DOES THAT MEAN?
3 A. PATIENT WAS GIVEN A SMALL DOSE OF MORPHINE. AND THE
4 PATIENT HAD HAD SOME MOANING SOUNDS EARLIER AND THAT THE
5 PHYSICIAN HAD ORDERED MORPHINE FOR DISCOMFORT FOR HER.
6 Q. DO YOU HAVE AN OPINION, BASED UPON YOUR EXPERTISE AND
7 REVIEW OF THE RECORDS, AS TO THE APPROPRIATENESS OF THAT
8 PARTICULAR INJECTION THAT YOU'VE JUST DESCRIBED?
9 A. I THINK THIS PATIENT RECEIVED APPROPRIATE TREATMENT WITH
10 MORPHINE. SHE HAD RECURRENT EPISODES OF MOANING AND
11 EVIDENCE OF DISCOMFORT AND PAIN THROUGHOUT THE END OF HER
12 LIFE, AND THAT THE PHYSICIAN ORDERED MORPHINE FOR HER TO
13 PREVENT FURTHER PAIN AND TO STOP THE PAIN SHE WAS IN.
14 Q. NOW, IT SAYS HERE -- A LITTLE BIT LATER IT SAYS:
15 RESPIRATIONS EVEN AT 12 PER MINUTE.
16 WHAT SIGNIFICANCE DOES THAT HAVE, IF ANY?
17 A. THAT'S A NORMAL RESPIRATORY RATE. ONE OF THE VITAL
18 SIGNS THAT WE MONITOR WITH MORPHINE THERAPY IS TO MAKE SURE
19 THAT THE MORPHINE IS NOT STOPPING THE PATIENT'S BREATHING
20 ALL AT ONCE. PATIENTS WHO HAVE SIDE EFFECTS FROM MORPHINE
21 WILL GET SLOWER AND SLOWER AND SLOWER RESPIRATIONS. NOT THE
22 CHEYNE-STOKING THAT WE TALKED ABOUT EARLIER, BUT JUST THEY
23 JUST SLOW DOWN. AND SO THE FACT THAT THIS PATIENT'S
24 RESPIRATORY RATE WAS NORMAL INDICATED THAT THE PATIENT'S
25 MORPHINE DOSE WAS APPROPRIATE.
3008
1 Q. THESE ARE SOME ADDITIONAL NOTES FOR THE 31ST.
2 SPECIFICALLY WE HAVE A REFERENCE HERE TO MORE VITAL SIGNS,
3 UP HERE WHERE IT SAYS VITAL SIGNS 99, AND THEN I -- I THINK
4 THAT'S BLOOD PRESSURE. AND COULD YOU EXPLAIN WHAT
5 SIGNIFICANCE THAT HAS, IF ANY, TO YOU?
6 A. THE PATIENT HAD DEVELOPED WITH A 99 DEGREE TEMP, A VERY,
7 VERY LOW GRADE FEVER. THE BLOOD PRESSURE AT 88/52 IS VERY
8 LOW, SO THAT THE PATIENT IS NOW HAVING POOR CIRCULATION.
9 THE HEART RATE IS 60, WHICH IS ALSO FAIRLY LOW FOR THIS
10 PATIENT. SHE NORMALLY RAN HIGHER THAN THAT, ALTHOUGH A
11 YOUNG ATHLETE WOULD DO FINE WITH A 60 HEART RATE. THE
12 RESPIRATORY RATE IS 16, WHICH IS WITHIN THE NORMAL RANGE AND
13 IS, IN FACT, A LITTLE FASTER THAN IT HAD BEEN EARLIER.
14 Q. IS THE RATE OF 16, AS CHARTED BY THE NURSE THERE,
15 CONSISTENT WITH SOMEONE WHO WOULD BE FEELING ILL EFFECTS OF
16 MORPHINE SEDATION?
17 A. NO. I HAD TO THINK ABOUT ALL THE THINGS YOU SAID TO
18 MAKE SURE I GOT THAT IN THE RIGHT ORDER.
19 Q. SURE.
20 A. THIS PATIENT DID NOT HAVE ANY EVIDENCE OF RESPIRATORY
21 DEPRESSION FROM MORPHINE OR ANY OTHER PROBLEM FROM MORPHINE
22 AT THIS POINT.
23 Q. AND TELL US WHY YOU SAY THAT.
24 A. BECAUSE THOSE VITAL SIGNS ARE CONSISTENT WITH THE
25 TERMINAL ILLNESS THE PATIENT HAD, BUT NOT WITH A MORPHINE
3009
1 OVERDOSE.
2 Q. AND THEN DOWN AT THE BOTTOM WE HAVE: PATIENT -- IT
3 APPEARS TO BE UNRESPONSIVE. I CAN'T QUITE READ THAT.
4 PROVIDE CARE AND COMFORT MEASURES.
5 DOES THAT HAVE ANY SIGNIFICANCE TO YOU IN TERMS OF YOUR
6 ASSESSMENT OF HER CONDITION ON THE 31ST?
7 A. SHE STILL SHOWS EVERY INDICATION OF DYING.
8 THE COURT: MR. STIRBA, HOW MUCH LONGER ON THIS
9 PATIENT ARE YOU GOING TO BE?
10 MR. STIRBA: I PROBABLY HAVE A GOOD 15 MINUTES,
11 YOUR HONOR.
12 THE COURT: OKAY. THEN WHY DON'T WE TAKE A BREAK
13 NOW, LADIES AND GENTLEMEN.
14 IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES DURING
15 THIS BREAK OR WITH ANYONE ELSE OR ALLOW YOURSELF TO BE
16 ADDRESSED BY ANY OTHER PERSON ON THE SUBJECT OF THIS TRIAL.
17 IT'S ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
18 UNTIL THE CASE IS FINALLY SUBMITTED TO YOU AFTER YOU'VE
19 HEARD ALL THE EVIDENCE.
20 SO LET'S COME BACK AT 10 MINUTES TO 10:00.
21 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
22 PROCEEDINGS RESUME, AS FOLLOWS:)
23 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
24 IS RETURNED.
25 MR. STIRBA, IF YOU'D LIKE TO GO AHEAD?
3010
1 MR. STIRBA: YES. THANK YOU, YOUR HONOR.
2 Q. (BY MR. STIRBA) DOCTOR, YOU HAVE BEFORE YOU AN ENTRY
3 FOR JUDITH LARSEN, NURSES' NOTE 12/31 OF 1995. AND THE
4 NURSE CHARTS -- THE NIGHT SHIFT NURSE, THE 11:00 TO 7:00
5 SHIFT THAT THE RESPIRATION RATE WAS 10 TO 16 PER MINUTE.
6 IS THAT SIGNIFICANT TO YOU IN TERMS OF THE
7 CIRCUMSTANCES OF MS. LARSEN AT THAT TIME?
8 A. IT -- IT INDICATES THAT THE PATIENT'S RESPIRATORY RATE
9 WAS NORMAL; AND, THEREFORE, NOT DEPRESSED BY THE MORPHINE
10 SHE HAD BEEN GIVEN.
11 Q. AND, IN FACT, HERE THERE IS AN ENTRY -- A NURSE
12 INDICATES MORPHINE 5 MILLIGRAMS I.M. GIVEN AT 2:30 AND 6:30
13 FOR PAIN RELIEF. PATIENT WAS MOANING.
14 IS THERE ANY SIGNIFICANCE TO YOU THAT THAT IS CHARTED
15 THAT SHE WAS MOANING?
16 A. WELL, IT INDICATES THAT THEY WERE TREATING A SYMPTOM OF
17 DISCOMFORT, THAT SHE WAS MOANING FROM PAIN OR FROM OTHER
18 DISCOMFORTS, THAT THAT'S WHAT THEY WERE USING THE MORPHINE
19 FOR.
20 Q. IS MOANING A COMMON SYMPTOM THAT OCCURS IN PEOPLE WHO
21 ARE IN THE DEATH AND DYING PROCESS?
22 A. NOT UNLESS THEY'RE IN PAIN.
23 Q. AND THEN A LITTLE BIT BELOW WE HAVE: PATIENT EYES OPEN
24 AND BLINKING. NOT RESPONDING TO VERBAL OR TACTILE -- I
25 THINK THAT SAYS STIMULI.
3011
1 WHAT IS THAT REFERRING TO?
2 A. THAT MEANS WHEN YOU CALL THE PATIENT'S NAME OR TOUCH HER
3 SHE'S NOT RESPONDING, BUT THAT SHE SEEMS TO BE A LITTLE BIT
4 AWARE. WE WOULD CALL THIS A SEMICOMATOSE STATE.
5 Q. AND DOES THAT HAVE ANY SIGNIFICANCE TO YOU IN TERMS OF
6 YOUR ASSESSMENT AND OPINION OF THE PROCESS OF DEATH AND
7 DYING?
8 A. IT'S A VERY COMMON SITUATION SHORTLY BEFORE DEATH.
9 Q. AND THEN RIGHT DOWN AT THE BOTTOM THE NURSE INDICATES:
10 PATIENT CONDITION POOR.
11 DO YOU AGREE WITH THAT ASSESSMENT?
12 A. YES.
13 Q. THEN THERE'S ANOTHER NOTE ON 1/1, AND AT THE TOP THE
14 NIGHT SHIFT NURSE CHARTS: CHEYNE-STOKES RESPIRATION,
15 PERIODS OF APNEA 15 TO 20 SECONDS.
16 WHAT IS APNEA?
17 A. APNEA IS THE ABSENCE OF A BREATH FOR 15 TO 20 SECONDS.
18 Q. IS IT SIGNIFICANT TO YOU WHAT IS CHARTED THERE OF THE
19 PHENOMENON OF APNEA FOR 15 TO 20 SECONDS?
20 A. IN -- IN THE CONTEXT OF CHEYNE-STOKES RESPIRATION IT
21 REPRESENTS THAT PERIOD OF TIME WHERE I SPOKE OF EARLIER
22 WHERE THE PATIENT'S RESPIRATION IS SO SHALLOW AND SO
23 INFREQUENT YOU AREN'T SURE THEY'RE BREATHING. THOSE ARE THE
24 PERIODS OF TIME OF NOT BEING SURE THE PATIENT'S BREATHING IS
25 THE 15 TO 20 SECOND PERIODS IN THAT DOWN SLOPE, AND THEN THE
3012
1 PATIENT AGAIN THEN BEGINS TO BREATHE VERY QUICKLY AND
2 DEEPLY.
3 Q. IS THAT BREATHING PATTERN THAT IS CHARTED INDICATIVE OF
4 RESPIRATORY DEPRESSION CAUSED BY MEDICATION?
5 A. NO, NOT -- NOT WITH CHEYNE-STOKES RESPIRATIONS. IF
6 THERE WERE ONLY PERIODS OF APNEA WITHOUT CHEYNE-STOKES
7 RESPIRATIONS IT COULD BE CONSIDERED A POSSIBLE SIDE EFFECT
8 OF MORPHINE. BUT IN THIS CONTEXT WHERE BOTH ARE TOGETHER,
9 IT IS A BRAIN STEM TYPE OF BREATHING PATTERN AND A REFLEX
10 BREATHING PATTERN INDICATIVE OF IMPENDING DEATH.
11 Q. AT 730 HOURS THE NURSE REPORTS: PATIENT RIGID AND
12 EXTREMITY MOVEMENTS -- I THINK IT'S -- I GUESS WITH
13 EXTREMITY MOVEMENTS.
14 WHAT IS THAT?
15 A. THAT TENDS TO HAPPEN WHEN THE PATIENT IS NOT
16 COMFORTABLE. PATIENTS WHO ARE IN PAIN OR HAVING OTHER
17 DISCOMFORT WILL TEND TO REACT TO -- WITH STIFFNESS TO BEING
18 TURNED IN BED. THEY'RE TRYING, WITH THIS REPOSITIONING, TO
19 PREVENT BED SORES IN THIS PATIENT WHICH WOULD INCREASE HER
20 DISCOMFORT, BUT THE MOVEMENT OF THE PATIENT IS PRODUCING
21 DISCOMFORT IN HER.
22 Q. AND WHAT -- WHAT EXACTLY IS ENTAILED BY REPOSITIONING?
23 A. WELL, THEY USUALLY ROLL THE PATIENT FROM ONE SIDE TO THE
24 OTHER AND TUCK A PILLOW BEHIND THEM AND STRAIGHTEN UP THE
25 SHEETS, AND SO THEY ACTUALLY HAVE TO MOVE THE PATIENT QUITE
3013
1 A LOT TO DO THAT.
2 Q. NOW, THERE'S ALSO AT 9:35 A NURSE CHARTS: INTERMITTENT
3 BREATHING -- JUST BREATHING. I CAN'T READ THE REST OF IT.
4 A. I THINK IT SAYS UNLABORED BREATHING.
5 Q. I SEE. AND THEN THERE'S AN INDICATION OF 14.
6 A. THAT'S HER RESPIRATORY RATE AT THAT TIME, WHICH IS
7 NORMAL.
8 Q. IS A NORMAL RATE?
9 A. UH-HUH.
10 Q. THIS IS A LATER NURSING NOTE WHICH I HAVE DISPLAYED ON
11 1 -- 1/1 OF '96. I WANT TO DIRECT YOUR ATTENTION TO THE
12 MIDDLE, UNDER (B) WE HAVE: PATIENT UNRESPONSIVE EXCEPT TO
13 PAINFUL STIMULI. AND THEN IT SAYS: GROANS AS INJECTIONS
14 GIVEN. PATIENT OFTEN GROANED WHEN TURNED.
15 WHAT SIGNIFICANCE DOES THAT HAVE TO YOU THAT THAT WAS
16 CHARTED?
17 A. THE STRONGEST ANTAGONIST TO THE EFFECT OF PAIN RELIEF
18 FROM MORPHINE IS PAIN ITSELF. WE OFTEN TALK ABOUT BALANCING
19 PAIN AND PAIN RELIEF TO PRODUCE PAIN RELIEF OPTIMALLY
20 WITHOUT OVERDOSING THE PATIENT.
21 THE FACT THAT THIS PATIENT IS RELATIVELY COMFORTABLE
22 WHEN SHE'S STILL, AND YET GROANS AND MOANS WHEN SHE'S MOVED
23 AROUND OR TREATED, WOULD MEAN THAT SHE'S BARELY GETTING
24 ENOUGH MORPHINE TO KEEP HER COMFORTABLE WHEN SHE'S STILL,
25 BUT CERTAINLY ISN'T AN OVERDOSE BY ANY STRETCH OF THE
3014
1 IMAGINATION BECAUSE SHE'S STILL HAVING PAIN WHEN SHE'S MOVED
2 AROUND.
3 Q. AND THEN A LITTLE BIT BELOW THAT UNDER FREE TEXT MED
4 NOTE, IT APPEARS TO BE 1600 HOURS, WE HAVE THE NOTE:
5 GROANING -- AND THEN I BELIEVE YOU USED THIS WORD BEFORE --
6 TWITCHING; IS THAT RIGHT?
7 A. YES.
8 Q. AND WHAT DOES TWITCHING INDICATE?
9 A. TWITCHING IS ANOTHER SIGN OF THE BODY BEING IRRITATED BY
10 A NOXIOUS STIMULUS. SOMETHING LIKE PAIN WOULD MAKE A PERSON
11 TWITCHY.
12 Q. AND THERE'S AN INDICATION THERE: AND SLIGHTLY LESS
13 TWITCHING OBSERVED 30 MINUTES -- I GUESS THAT'S POST, AND
14 M.S. WOULD BE MORPHINE; IS THAT RIGHT?
15 A. YES.
16 Q. WHAT -- WHAT DOES THAT TELL YOU?
17 A. THE MORPHINE DENTED THE PAIN, PROBABLY DIDN'T COMPLETELY
18 RELIEVE IT.
19 Q. THIS IS ANOTHER ENTRY FOR THE NURSING NOTES, AND IT'S
20 1/1 OF '96.
21 A. UH-HUH.
22 Q. AND IT APPEARS THAT AT 2245 IT SAYS: FREE TEXT, PATIENT
23 APPEARS TO BE IN PAIN.
24 DID I READ THAT CORRECTLY?
25 A. YES.
3015
1 Q. AND THEN IT GOES ON TO SAY: GROANING, AND PATIENT
2 MEDICATED, MORPHINE 5 MILLIGRAMS I.M.
3 AND THEN THERE ARE THOSE VITAL SIGNS CHARTED BY THE
4 NURSE. AND IS THERE A RESPIRATORY RATE INDICATED THERE?
5 A. RESPIRATORY RATE OF 12.
6 Q. AND IN TERMS OF NORMALCY IS --
7 A. THAT IS NORMAL.
8 Q. AND THEN IT SAYS: FREE TEXT, DOCTOR NOTIFIED THAT
9 MORPHINE STILL RESULTS IN NO RELIEF OF PATIENT'S GROANING
10 AND MOANING.
11 DID I READ THAT CORRECTLY?
12 A. YES.
13 Q. WHAT SIGNIFICANCE, IF ANY, DOES THAT ENTRY HAVE?
14 A. WELL, IT -- THE ENTRY ABOVE THE ONE YOU STARTED WITH
15 SAID: MEDICATED MORPHINE 5 MILLIGRAMS, HALF HOUR LATER NO
16 CHANGE NOTED.
17 AND THEN A FEW HOURS LATER: PATIENT APPEARED TO BE IN
18 PAIN AND WAS TREATED.
19 Q. LET ME -- LET ME STOP YOU, DOCTOR. I JUST WANT TO MAKE
20 SURE THAT I'M WITH YOU.
21 A. THAT'S THE FIRST PARAGRAPH THERE.
22 Q. PATIENT MEDICATED WITH MORPHINE 5 MILLIGRAMS I.M., HALF
23 HOUR LATER -- THAT MEANS NO CHANGE NOTED?
24 A. NO. DELTA IS A -- A MATHEMATICAL SYMBOL FOR CHANGE AND
25 WE USE IT AS AN ABBREVIATION WHEN WE'RE WRITING FAST.
3016
1 SO YOU'VE GOT TWO NOW IN A ROW EPISODES OF THE PATIENT
2 CONTINUING TO GROAN AFTER RECEIVING MORPHINE. SO THE
3 PHYSICIAN WAS NOTIFIED THAT THE PATIENT WAS NOT RECEIVING
4 THE RELIEF FROM THE MORPHINE, AND HE THEN GAVE A TELEPHONE
5 ORDER FOR ANOTHER DOSE OF MORPHINE.
6 Q. THIS IS A NURSES' NOTE FOR JANUARY 2ND OF '96. AND I
7 WANT TO DIRECT YOUR ATTENTION, THE NIGHT SHIFT NURSE, 11:00
8 TO 7:00, HAS IN A FREE TEXT NOTE, DOWN TOWARDS THE MIDDLE IT
9 SAYS: HANDS AND FINGERS ARE BLUISH IN COLOR.
10 WHAT DOES THAT SIGNIFY?
11 A. THE PATIENT'S CIRCULATION IS DECREASING. IT'S ONE OF
12 THE SIGNS OF IMPENDING DEATH THAT WE TALKED ABOUT EARLIER ON
13 THAT CHART.
14 Q. AND WHY WOULD THE CIRCULATION IMPAIRMENT MANIFEST ITSELF
15 IN BLUISHNESS COLOR IN THE FINGERS?
16 A. WELL, WHEN THE CIRCULATION IS SLOW THE BODY TAKES MORE
17 OF THE OXYGEN OUT OF THE BLOOD THAT'S SITTING IN THE FINGERS
18 OR IN THE TOES AND -- AND THE BLOOD COLOR TENDS TO TURN
19 BLUER WHEN THE OXYGEN IS USED UP. SO IT'S JUST BECAUSE IT'S
20 GOING THROUGH MORE SLOWLY THAT YOU WOULD TEND TO USE MORE OF
21 IT UP OUT OF THAT PARTICULAR PART OF THE BLOOD AND IT WOULD
22 LOOK BLUE.
23 Q. NOW THERE'S A 9:30 ENTRY AND IT'S A MED ENTRY AND IT --
24 M.S. 5 MILLIGRAMS I.M., AND THEN IT HAS PATIENT MOANING -- I
25 CAN'T QUITE READ THAT.
3017
1 A. AT THIS TIME.
2 Q. AT THIS TIME --
3 A. WITH EYES OPEN.
4 Q. -- AND EYES OPEN AND STARING.
5 IS -- IS THAT CHART NOTE SIGNIFICANT TO YOU?
6 A. WELL, THE PATIENT'S CONTINUING TO EXPERIENCE PAIN. I --
7 FROM THE EXPERIENCE I WOULD HAVE WITH MY PATIENTS -- WOULD
8 SUSPECT IF SHE WERE NOT HAVING PAIN AT THIS TIME, HER EYES
9 WOULD NOT BE OPEN AND STARING. THE MOANING AND STARING GO
10 TOGETHER. IT'S THAT LAST LITTLE THING THAT'S KEEPING HER
11 FROM BEING PEACEFUL IS THE PAIN.
12 Q. THIS IS ANOTHER ENTRY -- I THINK THE FOLLOWING
13 SEQUENCE -- ON 1/2 OF '96. I WANT TO DIRECT YOUR ATTENTION
14 DOWN TO THE BOTTOM. THERE'S AN ENTRY AT 1530 AND IT SAYS:
15 MOANING, 5 MILLIGRAMS M.S. P.R.N. GIVEN I.M.
16 DID I READ THAT CORRECTLY?
17 A. YES.
18 Q. AND P.R.N. MEANS WHAT?
19 A. AS NEEDED.
20 Q. AND WHAT SIGNIFICANCE, IF ANY, IS THAT NOTE TO YOU?
21 A. IT IS A RESPONSE, BASED ON THE NURSE'S JUDGMENT TO THE
22 LEVEL OF MOANING THAT THE PATIENT IS HAVING, THAT THE
23 PATIENT IS HAVING MORE PAIN. THIS PATIENT HAD TWO KINDS OF
24 MEDICATION ORDERS, ONE WERE ORDERS TO BE GIVEN ON A SCHEDULE
25 EVERY FOUR HOURS OR SOMETHING, AND THE NURSE WOULD NOT
3018
1 NECESSARILY HAVE DECISION TO DO IT AT THAT TIME. SHE WOULD
2 JUST, YOU KNOW, GIVE IT ON SCHEDULE. SHE MIGHT DECIDE NOT
3 TO GIVE IT IF THERE WERE AN ADVERSE SYMPTOM GOING ON, BUT
4 IT'S ON A SCHEDULE.
5 WHEN SOMETHING'S ORDERED P.R.N., THE PHYSICIAN IS
6 LEAVING IT TO THE NURSE'S JUDGMENT TO REACT TO A SYMPTOM
7 THAT THE PATIENT IS HAVING, AND IN THIS CASE, TO PAIN.
8 Q. AND IS THERE CHARTED A SYMPTOM SUCH THAT THE NURSE IS
9 REACTING TO IT?
10 A. MOANING. MOANING. JERKING ALL EXTREMITIES. THERE --
11 THOSE ARE INDICATIONS THAT THE PATIENT IS UNCOMFORTABLE.
12 Q. AND I NOTICE THAT DOWN RIGHT HERE THAT LOOKS LIKE
13 B. HARDEY, R.N. WHO WROTE THAT NOTE.
14 A. THAT'S WHAT --
15 Q. DOES THAT LOOK LIKE?
16 A. YES.
17 Q. THIS IS THE NEXT SEQUENTIAL NOTE. IT DOES NOT APPEAR TO
18 HAVE A DATE HERE. I THINK --
19 A. I THINK THE PUNCH WENT THROUGH THE DATE.
20 Q. YEAH. IT'S PUNCHED THROUGH. AT 1830 HOURS, MED ENTRY
21 MORPHINE 5 MILLIGRAMS GIVEN PER DOCTOR'S ORDERS. PATIENT
22 REMAINS UNRESPONSIVE, STARING. COOL CLOTH POSITIONED OVER
23 EYES TO DECREASE -- DOES THAT SAY CRYING?
24 A. PREVENT DRYING.
25 Q. PREVENT DRYING.
3019
1 AND THEN IT HAS HERE IN THE MIDDLE: FINGERS CYANOTIC,
2 HEART RATE IRREGULAR.
3 WHAT DOES CYANOTIC MEAN?
4 A. IT'S A MEDICAL WORD FOR BLUE.
5 Q. AND IS THIS THE SAME --
6 A. IT'S THE SAME AS WAS DESCRIBED EARLIER THAT PATIENT'S
7 CIRCULATION HAS DECREASED. THE BLOOD IS MOVING VERY SLOWLY
8 THROUGH THE FINGERS AND TOES AND SO THE BODY -- THE TISSUES
9 IN THAT AREA ARE USING UP ALL THE OXYGEN AND THE BLOOD IS
10 TURNING BLUER IN COLOR AND IT SHOWS AS BLUE COLOR IN THE
11 FINGERS.
12 Q. THE NURSE ALSO CHARTS THAT THE HEART RATE IS ERRATIC.
13 DO YOU KNOW WHAT THAT MEANS?
14 A. IRREG -- IRREGULAR.
15 Q. I'M SORRY.
16 A. YES.
17 Q. IRREGULAR. YOU'RE RIGHT.
18 A. RIGHT.
19 Q. AND DO YOU KNOW WHAT THAT MEANS?
20 A. WELL, THE PATIENT HAS A CARDIAC CONDITION AND THE
21 PATIENT'S NORMAL PACEMAKER IS NOT WORKING. THE PATIENT HAS
22 AN IRREGULAR HEARTBEAT. SHE'S HAD THAT PERSISTENTLY MOST OF
23 THE TIME.
24 Q. IS THAT SIGNIFICANT IN TERMS OF HER STATUS AT THIS POINT
25 WHEN CHARTED?
3020
1 A. PROBABLY NOT. PROBABLY NOT AS A SIGN THAT SHE'S DYING
2 RIGHT NOW. JUST AS AN INDICATOR THAT THERE'S MORE THAN ONE
3 ILLNESS IN THIS PATIENT.
4 Q. AND THEN SHE ALSO CHARTS OVER HERE, RIGID EXTREMITIES.
5 IS THAT WHAT YOU DESCRIBED PREVIOUSLY?
6 A. YES. THAT THE RIGIDITY TENDS TO BE FROM REACTING TO
7 DISCOMFORT, ESPECIALLY TO PAIN.
8 Q. IS RIGIDITY -- RIGIDITY A SIGN OR A SYMPTOM THAT IS
9 ASSOCIATED WITH THE DEATH AND DYING PROCESS?
10 A. NO. USUALLY THE PATIENT'S MUSCLES RELAX AS THEY GET
11 CLOSER TO DEATH.
12 Q. THIS IS A NOTE ON 1/3. AND WE HAVE, ONCE AGAIN, THE
13 NIGHT NURSE, 11:00 TO 7:00, HAS A FREE TEXT NOTE, AND HERE
14 SHE CHARTS: M.S. HELD TIMES 3 DUE TO RESPIRATIONS 5 TO 8.
15 DOES THAT HAVE ANY SIGNIFICANCE TO YOU IN THE CONTEXT
16 OF THIS NOTE?
17 A. WHAT THAT MEANS IS THAT THE PATIENT WAS MORE COMFORTABLE
18 AND THAT THE PATIENT'S RESPIRATORY RATE BEGAN TO BE AFFECTED
19 BY THE MORPHINE. SO THE NURSE, PER HER NURSING PROTOCOL,
20 WITHHELD ANY FURTHER DOSES OF MORPHINE AS LONG AS THE
21 RESPIRATORY RATE IS 5 TO 8. THIS WOULD BE THE NORMAL
22 RESPONSE TO A RESPIRATORY RATE OF 5 TO 8. I WOULD NOT TREAT
23 FOR THE RESPIRATORY RATE OF 5 TO 8 OR GIVE EXTRA MEDICATION
24 TO RAISE IT IN ANY WAY. I WOULD JUST WAIT FOR THE MORPHINE
25 TO WEAR OFF AND WAIT FOR THE SYMPTOMS TO RETURN BEFORE
3021
1 GIVING MORE MORPHINE. THIS IS AN ENTIRELY APPROPRIATE
2 NURSING ACTION.
3 Q. THEN IT HAS: FINGERS CYANOTIC EARLY IN SHIFT, MUCH
4 IMPROVED THROUGH THE NIGHT. AND I CAN'T READ THAT. NO
5 MOANING; IS THAT RIGHT?
6 A. NO MOTTLING.
7 Q. I'M SORRY. MOTTLING. WHAT IS MOTTLING?
8 A. MOTTLING IS ANOTHER SIGN OF IMPENDING DEATH WHERE THE
9 SKIN COLOR BECOMES SPLOTCHY SO THAT PARTS OF THE SKIN ARE --
10 ARE RED OR BLUE AND PART ARE VERY, VERY PALE. AND IT --
11 IT'S A LITTLE BIT LIKE THE SKIN OF A CANTALOUPE THAT IS
12 IRREGULAR. IT'S NOT ANY REAL PATTERN, BUT IT'S JUST LINES
13 OF COLOR ON A PALE BACKGROUND. AND IT IS A RESULT, AGAIN,
14 OF DROPPING BLOOD PRESSURE AND DECREASING CIRCULATION. IT
15 IS ALMOST UNIVERSAL IN A -- IN AN IMPENDING DEATH LIKE THIS.
16 SO THE FACT THAT SHE DIDN'T HAVE IT MEANT SHE WASN'T REALLY
17 RIGHT -- GOING TO DIE RIGHT THAT SECOND.
18 Q. NOW, IF WE GO DOWN TO THE -- THE NOTE FROM THE 7:00 TO
19 3:00 SHIFT, WE HAVE BEHAVIOR --
20 THE COURT: DO YOU WANT TO LIFT THAT UP A LITTLE
21 BIT?
22 MR. STIRBA: OH, I'M SORRY, YOUR HONOR. THANK YOU.
23 Q. (BY MR. STIRBA) THE 7:00 TO 3:00 SHIFT: BEHAVIOR,
24 PATIENT WAS UNRESPONSIVE FOR THIS SHIFT AND STARING VACANTLY
25 AT TIMES. GROANING AT TIMES, TWITCHING.
3022
1 DOES THAT BEHAVIOR INDICATE ANYTHING TO YOU?
2 A. IT WOULD INDICATE THAT THE PATIENT WAS AGAIN IN PAIN,
3 THAT THE EARLIER MORPHINE HAD PROBABLY WORN OFF BY THEN AND
4 THE PATIENT WAS NOW EXPERIENCING DISCOMFORT.
5 Q. AND THEN DOWN AT THE BOTTOM IT SAYS -- LOOKS LIKE:
6 RESPONSE, PATIENT HAS HAD NO CHANGE IN CONDITION THIS SHIFT.
7 AND THEN WHAT DOES THE S WITH THE MARK OVER IT?
8 A. WITHOUT.
9 Q. WITHOUT RESPONSE DURING CARES AND WHEN FAMILY VISITED.
10 DOES THAT HAVE ANY SIGNIFICANCE TO YOU?
11 A. THE PATIENT -- THE PATIENT IS COMPLETELY UNRESPONSIVE TO
12 HER ENVIRONMENT.
13 Q. AND WHAT DOES THAT MEAN?
14 A. IT MEANS THAT SHE'S DYING.
15 Q. THIS IS A -- A NOTE FOR 1/3 AND IT STARTS AT 1530. IT
16 HAS: FREE TEXT, 5 MILLIGRAMS MORPHINE I.M. GIVEN PER
17 SCHEDULED DOSE BY R.N.
18 A. L.P.N.
19 Q. L.P.N. I'M -- THAT'S RIGHT. THERE'S -- THERE'S THE L.
20 AND DOWN THE BOTTOM -- TOWARDS THE BOTTOM ON 1440, IS THAT
21 THAT MOTTLING AGAIN? EVIDENCES OF LOWER EXTREMITIES IN
22 BACK?
23 A. YES.
24 Q. AND THAT'S WHAT YOU JUST DESCRIBED --
25 A. BEGINNING TO -- TO SHOW THAT SIGN OF IMPENDING DEATH,
3023
1 YES.
2 Q. AND THEN ON 1830, RECEIVED DOCTOR'S ORDER FOR MORPHINE
3 15 MILLIGRAMS I.M. NOW. INCREASE MORPHINE TO 10 MILLIGRAMS
4 3 HOURS DUE TO PATIENT'S AGITATED STATE. AND IT'S BONNIE
5 HARDEY, R.N.
6 A. RIGHT. CORRECT.
7 Q. DOES THAT HAVE ANY SIGNIFICANCE TO YOU?
8 A. WELL, THE 1800 NOTE SAID PATIENT WITH LOUD MOANING,
9 EXTREMITIES TWITCHING, WHICH SOUNDS LIKE HER PAIN WAS
10 INCREASING. IT'S NOT SAID IN HERE, BUT IMPLIED IF THEY
11 RECEIVED DOCTOR'S ORDER THAT SOMEBODY CALLED THE DOCTOR
12 ABOUT THAT IN THAT HALF HOUR PERIOD AND GOT A NEW ORDER TO
13 INCREASE THE DOSE OF MORPHINE IMMEDIATELY, AND THEN OVER A
14 PERIOD OF TIME FOR CONTINUED CARE TO INCREASE HER DOSE FROM
15 5 TO 10 MILLIGRAMS.
16 Q. AND THEN AT 2000 HOURS IT -- IT LOOKS LIKE: PATIENT
17 DECREASED HEART RATE AND DEEP RESPIRATIONS -- I CAN'T READ
18 WHAT -- WHAT THAT SAYS.
19 A. WITHOUT.
20 Q. I'M SORRY. WITHOUT MOMENTS OF DEEP SIGNS AND
21 IRREGULAR --
22 A. I SUSPECT THAT MEANT WITH MOMENTS OF DEEP SIGH. IT'S
23 HARD TO READ.
24 Q. SIGH?
25 A. YEAH.
3024
1 Q. AND DOES THAT HAVE ANY SIGNIFICANCE TO YOU?
2 A. WE WOULD CALL THAT AGONAL BREATHING, THAT THE PATIENT IS
3 ACTUALLY, IN FACT, DYING RIGHT NOW. THAT THE HEART RATE
4 DROPPING AT THE SAME TIME THAT THE RESPIRATORY RATE IS
5 DROPPING MEANS THE PATIENT IS -- IS WITHIN MINUTES OF DEATH.
6 AS A PATIENT'S LAST BREATHS ARE TAKEN, THEY DON'T TEND TO BE
7 REAL SHALLOW. THEY TEND TO BE VERY DEEP AND VERY SLOW, SO
8 THAT YOU'D SEE ONE VERY DEEP, SLOW BREATH, AND THEN WAIT,
9 AND THEN ANOTHER DEEP, SLOW BREATH, AND THEN WAIT, AND THEY
10 KIND OF TAPER OFF THAT WAY SO THAT THE PATIENT IS ACTUALLY
11 DYING RIGHT NOW.
12 Q. YOU USED -- YOU USED THE TERM AGONAL.
13 A. AGONAL MEANS DYING RIGHT NOW.
14 Q. DOCTOR, YOU HAVE ALSO REVIEWED THE RECORD -- RECORDS
15 CONCERNING PATIENT LYDIA SMITH?
16 A. YES.
17 Q. AND DO YOU HAVE AN OPINION AS TO WHETHER OR NOT PATIENT
18 LYDIA SMITH WAS IN A TERMINAL CONDITION AT THE TIME OF HER
19 ADMISSION TO THE DAVIS HOSPITAL?
20 A. LYDIA SMITH MET ALL THE CRITERIA WE DISCUSSED EARLIER
21 FOR A TERMINAL PROGNOSIS FROM ADVANCED DEMENTIA. SHE
22 REQUIRED ACTIVITIES OF DAILY LIVING ASSISTANCE FOR
23 EVERYTHING. HER PERFORMANCE SCORES WERE -- WITH THE
24 FUNCTIONAL ASSESSMENT SCALE -- A 7(B), WHICH MEANT SHE HAD
25 LESS THAN ONE OR TWO INTELLIGIBLE WORDS PER DAY.
3025
1 IN ADDITION, SHE HAD EXPERIENCED AN UNINTENTIONAL
2 WEIGHT LOSS OF MORE THAN 25 PERCENT OF HER BODY WEIGHT IN
3 THE PERIOD IMMEDIATELY PRECEDING HER ADMISSION TO THE
4 HOSPITAL, INDICATING THAT SHE HAD LOST INTEREST IN FOOD AND
5 WAS NOT TAKING A NORMAL DIET.
6 Q. AND GIVEN WHAT YOU'VE JUST TESTIFIED TO, DO YOU HAVE AN
7 OPINION AS TO WHETHER OR NOT SHE WAS IN A TERMINAL CONDITION
8 UPON HER ADMISSION TO THE HOSPITAL?
9 A. WELL, YES. SHE MET ALL THE CRITERIA TO BE CONSIDERED
10 TERMINALLY ILL FROM THE ADVANCED DEMENTIA.
11 Q. YOU ALSO REVIEWED MR. ALLDREDGE'S -- MR. ENNIS
12 ALLDREDGE'S FILE?
13 A. I DID.
14 Q. AND I'LL ASK YOU SIMILARLY, DO YOU HAVE AN OPINION AS TO
15 WHETHER OR NOT MR. ALLDREDGE WAS TERMINALLY ILL ON HIS
16 ADMISSION TO THE DAVIS HOSPITAL?
17 A. MR. ALLDREDGE ALSO WAS TERMINALLY ILL WITH ADVANCED
18 DEMENTIA. HIS FUNCTIONAL ASSESSMENT SCALE WAS ALSO A 7(B),
19 JUST LIKE LYDIA'S. AND HE WAS EXPERIENCING MULTIPLE MEDICAL
20 COMPLICATIONS AND COMORBID CONDITIONS. NOW, THOSE ARE
21 THE -- COMORBID MEANING OTHER SEVERE ILLNESSES EXISTING AT
22 THE SAME TIME.
23 HE HAD INSULIN DEPENDENT DIABETES, CORONARY ARTERY
24 DISEASE HAVING HAD BYPASS SURGERY. HE HAD KIDNEY
25 INSUFFICIENCY. HE WAS BORDERING ON KIDNEY FAILURE. AND
3026
1 HE'D HAD A MALIGNANCY OF HIS LYMPHATIC SYSTEM CALLED MYCOSIS
2 FUNGOIDES WHICH IS A MALIGNANCY OF ONE OF THE T CELLS.
3 T CELLS ARE THE KIND OF LYMPHOCYTE THAT AFFECT YOUR
4 IMMUNE SYSTEM, AND SO HE HAD AN IMMUNE SYSTEM CANCER THAT
5 HAD BEEN TREATED. AND IT'S UNCLEAR FROM THE RECORD HOW
6 ACTIVE THE DISEASE WAS, ALTHOUGH THE INTERNIST NOTE SAID IT
7 WAS END STAGE.
8 Q. AND WHAT DOES END STAGE MEAN TO YOU?
9 A. ADVANCED DISEASE, THAT IT IS NOT CURED.
10 SO FOR ALL OF THESE REASONS, HE WAS TERMINALLY ILL WHEN
11 HE WAS ADMITTED TO THIS FACILITY.
12 Q. MARY CRANE?
13 A. MARY CRANE?
14 Q. DID YOU ALSO REVIEW --
15 A. I DID.
16 Q. -- HER SITUATION AND CIRCUMSTANCE ON ADMISSION?
17 A. MARY CRANE HAD ADVANCED DEMENTIA AND WAS PROBABLY CLOSE
18 TO TERMINALLY ILL, IF NOT QUALIFYING EXACTLY UNDER THE
19 MEDICARE GUIDELINES. HER FUNCTIONAL ASSESSMENT SCORE WAS
20 CLOSER TO A 7(A), WHICH IS RIGHT ON THE BORDER OF BEING
21 ELIGIBLE FOR HOSPICE CARE. BUT SHE HAD SERIOUS --
22 Q. DOCTOR, IF I MAY JUST INTERRUPT YOU. EXPLAIN TO US THE
23 DIFFERENCE BETWEEN YOUR ASSESSMENT OF HER CONDITION AND
24 PERHAPS THE OTHER PATIENTS IN TERMS OF THE SCALE AND THE
25 GUIDELINES.
3027
1 A. SHE WAS MORE COMMUNICATIVE AT THE TIME OF HER ADMISSION.
2 SHE WAS AGITATED AND DEPRESSED, BUT WAS, IN FACT, ABLE TO
3 COMMUNICATE OCCASIONALLY A FEW WORDS THAT WERE MEANINGFUL TO
4 THE STAFF, AND THEN LATER BECAME LESS COMMUNICATIVE BECAUSE
5 OF A MEDICAL COMPLICATION AND AN INTERCURRENT ILLNESS THAT
6 WAS OCCURRING.
7 Q. AND WHAT MEDICAL COMPLICATION ARE YOU REFERRING TO?
8 A. SHE HAD A LONG HISTORY OF RECURRING URINARY TRACT
9 INFECTIONS AND WAS NOTED DURING THIS HOSPITALIZATION TO HAVE
10 DEVELOPED A RECTOVAGINAL FISTULA, WHICH IS AN OPENING
11 BETWEEN HER RECTUM AND HER VAGINA ALLOWING STOOL TO PASS
12 FROM THE NORMAL PASSAGEWAY IN THE BOWEL INTO THE VAGINAL
13 AREA. AND WE THINK THAT THAT CONTAMINATION THEN GOT INTO
14 THE URETHRA, WHICH IS WHERE THE URINE COMES OUT OF THE
15 BLADDER, AND WAS GIVING HER RECURRENT INFECTIONS.
16 THE RESULT OF THIS RECTOVAGINAL FISTULA WAS THAT SHE
17 DEVELOPED A BLOODSTREAM INFECTION CALLED SEPTICEMIA AND DIED
18 FROM THE SEPTICEMIA. SHE DID NOT DIE OF HER DEMENTIA. SHE
19 DIED OF THE COMPLICATION OF SEPTICEMIA.
20 Q. DO YOU HAVE ANYTHING ELSE TO ADD CONCERNING YOUR
21 ASSESSMENT OF HER SITUATION RELEVANT TO THE GUIDELINES YOU
22 TESTIFIED TO?
23 A. JUST THAT THE PAIN MEDICATIONS THAT SHE RECEIVED DURING
24 THIS PERIOD OF TIME WERE IN KEEPING WITH THE LEVEL OF PAIN
25 EXPECTED FROM THE DISEASE THAT SHE HAD.
3028
1 Q. AND -- AND THAT DISEASE WAS WHAT?
2 A. WAS THIS FISTULA AND SEPTICEMIA.
3 Q. I SEE. AND DID YOU SIMILARLY CONDUCT AN EVALUATION AND
4 ASSESSMENT OF PATIENT ELLEN ANDERSON?
5 A. YES, I DID.
6 Q. AND DO YOU HAVE AN OPINION, BASED UPON YOUR REVIEW, OF
7 WHETHER ELLEN ANDERSON, ON HER ADMISSION TO THE DAVIS
8 HOSPITAL, WAS TERMINALLY ILL?
9 A. ELLEN ANDERSON HAD SEVERE DEMENTIA AT THE TIME OF HER
10 ADMISSION. IT'S UNCLEAR THAT SHE WAS ACTUALLY MEETING ALL
11 OF THE GUIDELINES FOR TERMINAL ILLNESS AT THE TIME OF HER
12 ADMISSION, AGAIN, BECAUSE SHE WAS SLIGHTLY MORE
13 COMMUNICATIVE THAN THE OTHERS.
14 HOWEVER, SHE HAD SEVERE ENDOCRINE ILLNESSES, INCLUDING
15 SEVERE CARDIAC DISEASE, AND APPEARED TO HAVE DURING HER STAY
16 THERE ANOTHER CARDIAC EVENT OF SOME SORT WHICH PRECIPITATED
17 HER DEATH. SHE DID NOT DIE OF HER DEMENTIA, BUT SHE DIED OF
18 THIS INTERCURRENT COMPLICATION.
19 SHE ONLY RECEIVED TWO SMALL DOSES OF MORPHINE DURING
20 HER END STAGE AND THIS WOULD HAVE BEEN AN ENTIRELY
21 APPROPRIATE WAY TO MANAGE AN ACUTE CARDIAC EVENT.
22 Q. BASED UPON YOUR REVIEW OF THE RECORDS AND YOUR ANALYSIS
23 OF THEM, DO YOU HAVE AN OPINION AS TO THE KIND OF CARE THAT
24 WAS BEING GIVEN TO LYDIA SMITH, ENNIS ALLDREDGE, MARY CRANE,
25 AND JUDITH LARSEN?
3029
1 A. I DO.
2 Q. AND WHAT KIND OF CARE WAS THAT?
3 A. I BELIEVE THESE PATIENTS WERE RECEIVING GOOD END-OF-LIFE
4 CARE WITH ATTENTION TO THE NEEDS OF THE PATIENT. THERE ARE
5 MANY NOW PRESENT STANDARDS THAT WEREN'T PRESENT AT THE TIME
6 OF THIS CARE FOR THESE PATIENTS THAT WERE ACTUALLY BEING
7 MET.
8 THERE WAS ATTENTION IN EACH PATIENT TO ADVANCE
9 DIRECTIVES, THE FAMILIES WERE COUNSELLED AND -- AND THE
10 CASES WERE DISCUSSED WITH EACH PATIENT. THE PATIENT'S
11 SYMPTOMS WERE MANAGED APPROPRIATELY, AND THE PATIENTS
12 RECEIVED COMPLETE AND ATTENTIVE CARE.
13 Q. WHAT GUIDELINES ARE YOU REFERRING TO THAT NOW ARE
14 EXISTENT THAT WERE NOT EXISTENT THEN?
15 A. WELL, IN THE LAST SEVERAL YEARS IN THE UNITED STATES
16 THERE'S BEEN A HUGE INTEREST IN INCREASING AND IMPROVING
17 END-OF-LIFE CARE. IN 1997 A REPORT WAS PUBLISHED THAT
18 SHOWED THAT MORE THAN HALF OF PATIENTS WHO DIED IN INTENSIVE
19 CARE UNITS DIED IN SEVERE PAIN, UNTREATED AND UNRECOGNIZED
20 BY THEIR PHYSICIANS.
21 IN RESPONSE TO THIS THE AMA, THE AMERICAN MEDICAL
22 ASSOCIATION, HAS JUST COMPLETED AN EXTENSIVE PROGRAM TO
23 DEVELOP A CURRICULUM TO TRAIN ALL PRACTICING PHYSICIANS IN
24 THE APPROPRIATE MANAGEMENT OF PATIENTS AT THE END OF LIFE,
25 WHICH INCLUDE THE ADVANCE DIRECTIVES, THE PAIN AND SYMPTOM
3030
1 CONTROL, THE ATTENTION TO INFORMATION NEEDED BY PATIENTS AND
2 FAMILIES, NORMAL GRIEF AND SO ON. SO THOSE ARE NOW THE
3 CURRENT STANDARDS FOR END-OF-LIFE CARE.
4 Q. THANK YOU.
5 MR. STIRBA: THAT'S ALL THE QUESTIONS I HAVE,
6 DOCTOR.
7 THE WITNESS: OKAY.
8 THE COURT: MR. WILSON?
9 MR. WILSON: THANK YOU, YOUR HONOR.
10 CROSS-EXAMINATION
11 BY MR. WILSON:
12 Q. GOOD MORNING, DOCTOR.
13 A. GOOD MORNING.
14 Q. DOCTOR, IN READING OVER YOUR CURRICULUM VITAE I NOTE
15 THAT YOU'VE SIT ON A NUMBER OF COMMITTEES THAT DEALS WITH
16 ISSUES OF DEATH AND DYING; IS THAT CORRECT?
17 A. YES.
18 Q. AND AS I UNDERSTAND YOUR TESTIMONY EARLIER, YOU'VE BEEN
19 INVOLVED IN THE HOSPICE CARE SINCE I THINK 1978?
20 A. THAT'S CORRECT.
21 Q. AND PREVIOUS TO THAT TIME YOUR EXPERIENCE WAS WHAT,
22 DOCTOR?
23 A. I FINISHED MY FELLOWSHIP IN HEMATOLOGY/ONCOLOGY IN 1975.
24 IN THE TWO YEARS BETWEEN I HAD THREE CHILDREN AND DID NOT
25 PRACTICE.
3031
1 Q. OKAY. IN RESPECT TO THE SAN DIEGO HOSPICE -- I GUESS
2 IT'S THE HOSPICE FACILITY THAT YOU ARE THE DIRECTOR OF?
3 A. I AM THE VICE-PRESIDENT OF MEDICAL AFFAIRS AND MEDICAL
4 DIRECTOR.
5 Q. OKAY. NOW, IN THAT CAPACITY, DO YOU OVERSEE THE
6 ADMISSION OF THE PATIENTS TO THE HOSPICE UNIT?
7 A. I MAY SEE SOME PATIENTS. I HAVE NINE OTHER PHYSICIANS
8 WHO REPORT TO ME WHO ARE PRIMARILY RESPONSIBLE FOR THOSE
9 ADMISSIONS AT THIS TIME.
10 Q. NOW, HOW BIG OF A CENTER IS THIS THAT WE'RE TALKING
11 ABOUT?
12 A. WE HAVE 450 PATIENTS IN HOME CARE; WE HAVE A 24-BED
13 INPATIENT ACUTE FACILITY; AND WE HAVE CONTRACTS WITH OTHER
14 HOSPITALS FOR OVERFLOW.
15 Q. OKAY. WHAT TYPE OF PATIENTS PRIMARILY DO YOU SEE AT
16 THIS PARTICULAR HOSPICE?
17 A. SIXTY PERCENT OF OUR PATIENTS ADMITTED TO THE SAN DIEGO
18 HOSPICE PROGRAM HAVE CANCER, THE OTHER 40 PERCENT HAVE
19 NONCANCER DISEASES, INCLUDING CARDIAC AND PULMONARY DISEASE,
20 ALZHEIMER'S AND OTHER DEMENTIAS, LOU GEHRIG'S DISEASE, AIDS
21 AND SO FORTH.
22 Q. OKAY. IN RESPECT TO THE GERIATRIC PATIENT CASELOAD,
23 WHICH I ASSUME WOULD BE PRIMARILY THE ALZHEIMER'S DISEASE
24 UNIT?
25 A. OF ALL OF THE PATIENTS, THE MAJORITY ARE OVER 65, ABOUT
3032
1 75 PERCENT, REPRESENTING ALL OF THE DISEASES.
2 Q. OKAY. SO IN RESPECT TO -- LET'S JUST FOCUS ON THE
3 DEMENTIA PATIENTS THAT ARE HOUSED AT THE UNIT. I ASSUME
4 THERE'S CRITERIA THAT ARE SET UP BEFORE ADMISSION TO THAT
5 PARTICULAR UNIT?
6 A. THE -- I NEED TO CLARIFY YOUR QUESTION FOR JUST A
7 SECOND.
8 Q. OKAY.
9 A. YOU'RE TALKING ABOUT THE UNIT. THE INPATIENT FACILITY
10 IS LICENSED AS AN ACUTE CARE HOSPITAL AND IS ONLY USED FOR
11 PATIENTS WHOSE SYMPTOMS ARE COMPLETELY OUT OF CONTROL. ALL
12 OF THE OTHER PATIENTS ARE CARED FOR IN THEIR RESIDENTIAL
13 AREA, WHETHER THAT'S IN A NURSING HOME OR IN THEIR OWN
14 HOMES.
15 Q. OKAY. SO IN OTHER WORDS, YOU -- YOU SUPERVISE THE
16 PATIENTS -- OR AT LEAST YOU WOULD ATTEND TO THE PATIENTS IN
17 ANOTHER CARE SETTING; IS THAT CORRECT?
18 A. YES.
19 Q. OKAY. NOW, COUNSEL ASKED YOU SOME QUESTIONS ABOUT
20 MEDICARE PAYMENTS, FROM THAT STANDPOINT.
21 A. YES.
22 Q. MEDICARE WILL ONLY PAY IF A PATIENT IS THEN DIAGNOSED AS
23 TERMINALLY ILL?
24 A. TERMINALLY ILL WITH A PROGNOSIS OF SIX MONTHS OR LESS IF
25 THE DISEASE RUNS ITS NORMAL COURSE.
3033
1 Q. OKAY. NOW, LET'S FOCUS A LITTLE BIT ON THAT
2 PARTICULAR -- WELL, BEFORE WE GET TO THAT, IN TERMS OF THE
3 AREA OF EXPERTISE WHICH YOU -- WHICH YOU HOLD THIS, AS I
4 UNDERSTAND IT, A BOARD CERTIFICATION IN PALLIATIVE CARE?
5 A. YES.
6 Q. AND THAT'S BEEN A FAIRLY RECENT DEVELOPMENT?
7 A. YES. THE FIRST EXAM WAS OFFERED IN 1996.
8 Q. OKAY. AND PREVIOUS TO THAT TIME, THERE WAS NO BOARD
9 CERTIFICATION?
10 A. THAT IS CORRECT.
11 Q. OKAY. WHEN IN 1996 WAS IT OFFERED?
12 A. I BELIEVE IT WAS OCTOBER.
13 Q. OKAY. AND IN RESPECT TO THE GUIDELINES AND CRITERIA
14 THAT YOU'VE TALKED ABOUT AS TO THE DIAGNOSIS OF DEMENTIA, DO
15 YOU KNOW WHEN THOSE GUIDELINES WERE FIRST DEVELOPED?
16 A. THE N.H.O. GUIDELINES FOR PROGNOSIS IN TERMINAL ILLNESS?
17 IS THAT WHAT YOU'RE REFERRING TO?
18 Q. UH-HUH.
19 A. IN 1995 IN THE FALL.
20 Q. OKAY. AND IN RESPECT TO THE GUIDELINES OR TO THE -- IF
21 I MIGHT JUST REFER TO SOME OF THE CHARTS HERE THAT COUNSEL
22 PREVIOUSLY SHOWED YOU. THE PHYSICAL SIGNS AND SYMPTOMS AS
23 IT RELATES TO -- I THINK THESE WERE SIGNS OF DYING?
24 A. IMPENDING DEATH, YES.
25 Q. IMPENDING DEATH. AND BY IMPENDING DEATH, WHAT DO YOU
3034
1 MEAN?
2 A. DEATH WITHIN THE NEXT FEW DAYS.
3 Q. OKAY. ALL OF THESE SYMPTOMS THAT YOU'VE LISTED HERE,
4 ARE THEY -- ARE THEY ESTABLISHED GUIDELINES? HOW WAS THIS
5 DEVELOPED?
6 A. THESE WERE FIRST PUBLISHED BY DAME CECILY SAUNDERS IN --
7 FROM HER HOSPICE PROGRAM IN THE MID-70'S.
8 Q. IN THE MID-70'S.
9 A. YES.
10 Q. OKAY. AND IN RESPECT TO THE OTHER DOCUMENT THAT WAS
11 SHOWN TO YOU DETERMINING THE DEMENTIA PROGNOSIS --
12 A. YES.
13 Q. -- AND THE VARIOUS GUIDELINES THAT ARE SET FORTH THERE,
14 WHEN WAS THAT DEVELOPED?
15 A. THAT WAS PART OF THE N.H.O. GUIDELINES THAT WERE
16 PUBLISHED IN 1995.
17 Q. OKAY. IN THE FALL OF 1995?
18 A. THAT'S CORRECT.
19 Q. OKAY. YOU DON'T HOLD ANY GERIATRIC SPECIALTIES, DO YOU?
20 A. NO, I DO NOT.
21 Q. YOU'RE NOT BOARD CERTIFIED IN -- IN ANY AREA OR
22 SUBCATEGORY OF AREA OF GERIATRICS?
23 A. I'M BOARD CERTIFIED IN INTERNAL MEDICINE WHICH INCLUDES
24 CARE OF ELDERLY PATIENTS, BUT I'M NOT IN THE SUBSPECIALTY OF
25 GERIATRICS.
3035
1 Q. AS A MEMBER OF VARIOUS COMMITTEES, CAN YOU TELL US
2 WHETHER OR NOT YOU'RE ACTIVELY INVOLVED IN THE PROMOTION OF
3 LEGISLATION OR EDUCATIONAL OPPORTUNITIES THAT YOU WOULD
4 PROVIDE TO -- TO THE GENERAL PUBLIC?
5 A. I AM.
6 Q. AND THAT WAS A TWO-PART QUESTION, I'LL REPHRASE IT.
7 WHAT -- HAVE YOU DONE ANYTHING IN THE AREA OF LEGISLATION?
8 A. I HAVE WRITTEN LETTERS TO MY CONGRESS PEOPLE ABOUT
9 LEGISLATION THAT WOULD AFFECT THE CARE OF TERMINALLY ILL
10 PATIENTS.
11 Q. OKAY. SO I ASSUME FROM THAT YOU HOLD SOME STRONG VIEWS
12 IN REGARDS TO THESE TYPES OF ISSUES; IS THAT CORRECT?
13 A. YES. I'VE BEEN VERY ACTIVE WITH THE EDUCATIONAL SIDE OF
14 CARE OF TERMINALLY ILL PATIENTS FOR ALL OF MY CAREER. AND
15 AS SUCH I HAVE HAD SOME -- THE OPPORTUNITY TO DEVELOP SOME
16 VERY STRONG OPINIONS ABOUT THE AVAILABILITY OF CARE FOR
17 THESE PATIENTS.
18 Q. DO YOU BELIEVE IN -- THAT THERE'S A CERTAIN
19 MISUNDERSTANDING AS TO THE ISSUES OF DEATH AND DYING IN THE
20 UNITED STATES?
21 A. CAN YOU REPHRASE THAT MORE SPECIFICALLY?
22 Q. WELL, LET ME ASK YOU THIS. I'LL BE MORE SPECIFIC. DO
23 YOU HAVE STRONG FEELINGS ABOUT, LET'S SAY, THE ISSUES
24 SURROUNDING THE CONCEPT OF PHYSICIAN-ASSISTED SUICIDE?
25 A. I HAVE VERY STRONG FEELINGS SURROUNDING
3036
1 PHYSICIAN-ASSISTED SUICIDE.
2 Q. OKAY. AND WHAT ARE THOSE FEELINGS?
3 A. I AM VERY OPPOSED TO PHYSICIAN-ASSISTED SUICIDE.
4 Q. OKAY. DO YOU HAVE A BELIEF IN THE CONCEPT OF VOLUNTARY
5 ACTIVE EUTHANASIA?
6 A. DO I BELIEVE IT EXISTS OR DO I BELIEVE THAT IT'S RIGHT?
7 I'M TRYING TO UNDERSTAND YOUR QUESTION.
8 Q. LET ME ASK YOU -- I'LL ASK YOU -- DO YOU BELIEVE IT IS
9 RIGHT?
10 A. NO.
11 Q. OKAY. CAN YOU DESCRIBE FOR THE JURY WHAT THAT CONCEPT
12 MEANS?
13 A. TO ME THE CONCEPT OF ACTIVE EUTHANASIA WOULD BE THAT A
14 PHYSICIAN WOULD DO SOMETHING THAT WOULD ACTIVELY END A
15 PATIENT'S LIFE LIKE GIVE A MEDICINE OR AN INJECTION.
16 Q. OKAY. WOULD THE PATIENT NORMALLY PARTICIPATE IN THAT
17 PROCESS?
18 A. THAT'S WHAT THE CONCEPT MEANS.
19 Q. THE VOLUNTARY PART OF THE CONCEPT --
20 A. IS THE PHYSICIAN INVOLVEMENT, YES.
21 Q. -- I ASSUME, IS -- IS THE PART OF THE PATIENT --
22 A. THE ACTIVE --
23 Q. -- MAKING DECISIONS?
24 A. YES. THE ACTIVE IS THE OPERATIVE WORD THAT WOULD
25 IMPLICATE THE PHYSICIAN.
3037
1 Q. OKAY. WHAT ABOUT THE CONCEPT OF TERMINAL SEDATION?
2 A. TERMINAL SEDATION IS A FASCINATING CONCEPT AND I WOULD
3 LIKE TO KNOW WHAT YOU WANT TO KNOW BECAUSE I COULD PROBABLY
4 TALK ABOUT IT FOR TWO HOURS.
5 THE COURT: WELL, WAIT. WAIT UNTIL HE GETS A
6 QUESTION.
7 THE WITNESS: THAT'S WHY I WARNED HIM.
8 Q. (BY MR. WILSON) AS I UNDERSTAND TERMINAL -- AND YOU
9 TELL ME IF I'M RIGHT OR WRONG. AS I UNDERSTAND TERMINAL
10 SEDATION, IT INVOLVES THE ADMINISTRATION OF MEDICATIONS
11 WHICH SEDATE THE PATIENT TO A CERTAIN LEVEL WITHOUT
12 HASTENING OR CAUSING DEATH.
13 A. THAT'S A PRETTY GOOD DEFINITION, YEAH.
14 Q. IS THAT -- IS THAT FAIRLY CORRECT?
15 A. YES.
16 Q. OKAY. AND -- AND THE -- THE PHYSICIAN HAS TO WALK A
17 PRETTY FINE LINE THERE, DOESN'T HE?
18 A. WELL, THERE'S THE CONCEPT ALSO IN MEDICAL ETHICS OF
19 DOUBLE EFFECT WHERE YOU MAY HAVE AN UNINTENDED CONSEQUENCE
20 WHILE YOU'RE TRYING TO GET AN INTENDED CONSEQUENCE. AND IT
21 IS IN THAT REALM THAT THE PHYSICIAN WALKS HIS FINE LINE IN
22 THAT WE WANT TO GIVE ENOUGH MEDICINE TO SEDATE THE PATIENT
23 AND STOP THE SYMPTOMS, AND NOT ENOUGH MEDICINE TO KILL THE
24 PATIENT.
25 IT'S BEEN VERY INTERESTING THAT THE IDEA OF SEDATION AT
3038
1 THE END OF LIFE FOR INTRACTABLE SYMPTOMS HAS BEEN PROBABLY
2 THE -- THE NEW FRONTIER FOR HOW WE GIVE THESE MEDICINES.
3 Q. OKAY.
4 A. A RECENT REPORT FROM JAPAN WHERE THEY ASSESS THE
5 OUTCOMES OF END-STAGE SEDATION SHOWED THAT EITHER MORPHINE
6 OR OTHER DRUGS LIKE THE ATIVAN AND SOME OF THE
7 NEUROPSYCHIATRIC DRUGS GIVEN AT THE END OF LIFE DO NOT
8 SHORTEN THE PATIENT'S LIFE EXPECTANCY. SO ALL OF OUR FEARS
9 ABOUT THIS CONCEPT OF DOUBLE EFFECT HAVE BEEN NOW ALLAYED
10 WHERE WE NOW KNOW THAT EVEN WHEN WE SEDATE THESE PATIENTS,
11 WE'RE NOT KILLING THEM.
12 Q. SO I TAKE IT YOU'RE FAVORABLE TO THAT PARTICULAR
13 CONCEPT?
14 A. WHEN THERE IS NO OTHER WAY TO TREAT THE SYMPTOMS, YES.
15 Q. WHEN THERE IS NO OTHER WAY TO TREAT THE SYMPTOMS.
16 A. RIGHT.
17 Q. AND -- AND THAT'S WHAT YOU SPEAK ABOUT IN TERMS OF THE
18 DOUBLE EFFECT; IS THAT RIGHT?
19 A. THAT'S CORRECT.
20 Q. OKAY. THE PATIENT -- AS I UNDERSTAND THAT CONCEPT,
21 THE -- YOU HAVE TO EVALUATE THE NEEDS OF THE PATIENT?
22 A. EVERY THERAPY SHOULD BE INDIVIDUALLY TAILORED TO THE
23 SPECIFIC NEEDS OF THE PATIENT.
24 Q. LET'S TALK A LITTLE BIT ABOUT THIS TERMINAL ILLNESS
25 PROCESS. THAT BECOMES A VERY SIGNIFICANT AND IMPORTANT PART
3039
1 IN THE PROCESS, AS I UNDERSTAND IT, BEFORE YOU OFFER HOSPICE
2 CARE?
3 A. WITH PATIENTS THE PAYMENT FOR THEIR SERVICES CAN ONLY BE
4 RECEIVED FROM MEDICARE IF THE PATIENTS HAVE A PROGNOSIS OF
5 SIX MONTHS OR LESS.
6 Q. RIGHT.
7 A. WE OFTEN OFFER FREE CARE TO PATIENTS WHO DON'T QUITE
8 MEET THAT CRITERION WHEN THEY NEED A LOT OF HELP. SO IT'S
9 A -- IT'S A REIMBURSEMENT ISSUE. IT'S NOT A WHETHER OR NOT
10 THEY NEED HELP ISSUE.
11 Q. WHO IS THAT MADE BY?
12 A. THE DECISION TO PAY?
13 Q. NO. THE DECISION TO -- THE DECLARATION OF TERMINAL
14 CONDITION.
15 A. DECLARATION IS MADE JOINTLY BY THE PRIMARY PHYSICIAN FOR
16 THE PATIENT AND ONE OF THE HOSPICE PHYSICIANS.
17 Q. SO IT'S EVALUATED BY TWO SEPARATE PHYSICIANS?
18 A. UH-HUH.
19 Q. BEFORE THEY'RE ACCEPTED?
20 A. THE -- THE SECOND PHYSICIAN, THE HOSPICE PHYSICIAN,
21 DOESN'T ALWAYS SEE THE PATIENT, BUT -- BUT RENDERS AN
22 OPINION BASED ON INFORMATION FROM THE PRIMARY PHYSICIAN.
23 Q. OKAY. SO THERE'S -- BUT THERE IS TWO PHYSICIANS --
24 A. RIGHT.
25 Q. -- WHO WILL REVIEW THE MEDICAL RECORD OR -- OR EVEN
3040
1 INTERVIEW THE PATIENT?
2 A. RIGHT.
3 Q. I SEE.
4 A. WELL, THE FIRST PHYSICIAN IS THE PRIMARY PHYSICIAN FOR
5 THE PATIENT.
6 Q. IT HAS TO BE THE PRIMARY PHYSICIAN --
7 A. RIGHT.
8 Q. -- AND THEN --
9 A. AND THEN --
10 Q. -- A PHYSICIAN FROM YOUR -- FROM YOUR HOSPITAL WOULD
11 THEN --
12 A. REVIEW THE MATERIAL.
13 Q. -- REVIEW THE CONTENTS OF THAT?
14 A. RIGHT.
15 Q. OKAY. NOW, IS THAT A SET REQUIREMENT BY MEDICARE?
16 A. YES, IT IS.
17 Q. OKAY. SO ONCE THAT -- AND WHY IS THAT, DOCTOR?
18 A. IT'S THE WAY THE ORIGINAL LAW WAS WRITTEN FOR THE
19 MEDICARE --
20 Q. OKAY.
21 A. -- HOSPICE BENEFIT BACK IN ABOUT 1984.
22 Q. IS THAT A SAFEGUARD?
23 A. I THINK IT WAS A WAY OF HELPING PATIENTS GET TO CARE.
24 Q. OKAY.
25 A. IF YOU -- IF YOU REMEMBER BACK IN THE EARLY 80'S IT
3041
1 WAS -- PEOPLE WERE VERY RELUCTANT TO TELL PATIENTS THAT THEY
2 WERE TERMINALLY ILL AND WEREN'T ABOUT TO SEND THEM TO
3 HOSPICE UNLESS THEY REALLY NEEDED IT.
4 Q. OKAY. BUT THE PROCESS OF HAVING TWO PHYSICIANS REVIEW
5 THE MEDICAL RECORD AND THE ATTENDING PHYSICIAN, ALSO, AND
6 IN -- IN INSTANCES EVEN TALK WITH THE PATIENT --
7 A. UH-HUH.
8 Q. -- OR -- OR EXAMINE THE PATIENT, I GUESS WOULD BE A MORE
9 APPROPRIATE TERM, ISN'T THAT -- DOESN'T THAT PROVIDE A
10 CERTAIN SAFEGUARD?
11 A. IT PROVIDES A SAFEGUARD FOR THE REIMBURSEMENT SYSTEM.
12 Q. OKAY. DOES IT NOT PROVIDE A SAFEGUARD FOR THE PATIENT?
13 A. THERE IS NO CARE DELIVERED TO THE PATIENT IN HOSPICE
14 CARE THAT WOULD HARM THE PATIENT.
15 Q. OKAY. BUT IF I WAS TO BE DIAGNOSED AS TERMINALLY ILL,
16 WOULD IT NOT BE A BENEFIT TO ME TO HAVE TWO PHYSICIANS MAKE
17 THAT DETERMINATION?
18 A. DEPENDS ON WHAT YOU'RE TERMINALLY ILL WITH, I WOULD
19 THINK. THE PATIENT HAS TO ELECT THE MEDICARE HOSPICE
20 BENEFIT AS WELL.
21 Q. OKAY.
22 A. AND AT NO TIME IS THE PATIENT COERCED TO RECEIVING
23 HOSPICE CARE. THERE IS NOTHING ABOUT HOSPICE CARE THAT'S
24 GOING TO SHORTEN A PATIENT'S LIFE EXPECTANCY, OR EVEN
25 DECREASE HIS ABILITY TO GET ANOTHER OPINION ABOUT THERAPY
3042
1 FOR THE PRIMARY DISEASE. ABOUT 60 PERCENT OF CANCER
2 PATIENTS IN THE UNITED STATES RECEIVE SOME HOSPICE CARE.
3 THE RATE FOR OTHER DISEASES THAT KILL PATIENTS IS MUCH, MUCH
4 LOWER. IT IS MORE ON THE RANGE OF 5 TO 7 PERCENT
5 NATIONALLY.
6 Q. SO ONLY 5 TO 7 PERCENT OF THOSE WHO ARE NONCANCER
7 PATIENTS --
8 A. WHO ARE ELIGIBLE FOR HOSPICE CARE EVER RECEIVE IT.
9 Q. EVER RECEIVE IT. AFTER A CERTIFICATION OF THE TERMINAL
10 ILLNESS IS MADE, IS THERE AN EVALUATION PROCESS THAT GOES ON
11 AS TO THE NEEDS OF THAT PARTICULAR PATIENT?
12 A. IT'S AN INTERDISCIPLINARY ASSESSMENT PROCESS.
13 Q. OKAY. SO THERE'S SORT OF A TEAM APPROACH TO --
14 A. UH-HUH.
15 Q. -- TO THIS PATIENT'S CARE?
16 A. THE PATIENTS ALL HAVE A NURSE ASSIGNED AND THEY MAY HAVE
17 OTHER MEMBERS OF THE TEAM LIKE SOCIAL WORKER, CHAPLAIN, A
18 VOLUNTEER.
19 Q. SO YOU LOOK AT THE PATIENT AND YOU SAY, OKAY, WE'RE
20 GOING TO USE A MULTIDISCIPLINARY PROCESS --
21 A. RIGHT.
22 Q. -- TO PROVIDE CARE FOR THIS PATIENT?
23 A. RIGHT. AND -- AND IN MOST HOSPITALS, ACUTE HOSPITALS, A
24 SIMILAR SYSTEM ACTUALLY OCCURS -- EVEN THOUGH IT'S NOT
25 CALLED HOSPICE. WHEN PATIENTS ARE ADMITTED TO A HOSPITAL
3043
1 THEY SEE A PHYSICIAN, THE NURSE DOES AN ASSESSMENT, THE
2 DIETICIAN SEES THE PATIENT.
3 Q. ALL RIGHT.
4 A. THERE'S A SOCIAL WORKER. SO INTERDISCIPLINARY CARE IS
5 PRETTY MUCH THE STANDARD IN MEDICINE ACROSS A LOT OF
6 DIFFERENT SETTINGS.
7 Q. IS THIS -- HAS THIS TYPE OF ASSESSMENT BEEN DONE FOR A
8 LONG PERIOD OF TIME?
9 A. I THINK PROBABLY THE CONCEPT OF INTERDISCIPLINARY CARE
10 HAS BEEN RELATIVELY RECENT IN MEDICINE, POST WORLD WAR II.
11 PRIOR TO THAT THE DOCTOR WAS GOD -- OR THOUGHT HE WAS. BUT
12 NOW THE NURSES HAVE MUCH MORE PRACTICE AUTONOMY AND MORE TO
13 SAY ABOUT HOW THE PATIENTS ARE CARED FOR, THAT WE REQUIRE A
14 DIETARY ASSESSMENT IN -- IN INPATIENT FACILITIES, WE REQUIRE
15 THE NEEDS OF THE PATIENT BE ADDRESSED IN MANY OTHER WAYS.
16 Q. NOW, YOU SPOKE PREVIOUSLY, DOCTOR, THAT YOU HAVE A -- I
17 GUESS IT WAS AN ACUTE CARE UNIT ON THE --
18 A. YES. WE'RE LICENSED BY THE STATE OF CALIFORNIA AS A
19 SPECIAL ACUTE HOSPITAL UNDER A LEGISLATIVE ACT FROM -- FROM
20 CALIFORNIA.
21 Q. SO WHAT TYPE OF PATIENT QUALIFIES FOR ACUTE CARE?
22 A. A PATIENT WHOSE SYMPTOMS ARE OUT OF CONTROL AND WERE
23 HAVING TROUBLE MANAGING THEM AT HOME.
24 Q. OKAY. AND IS IT -- IS IT TO -- NOW, WHEN I -- WHEN I
25 SPEAK OF ACUTE THERE IS SOMETHING THAT -- THAT HAS HAPPENED
3044
1 TO THIS PATIENT, I ASSUME?
2 A. USUALLY. UH-HUH.
3 Q. THAT NEEDS IMMEDIATE RESOLUTION?
4 A. PAIN IS OUT OF CONTROL, THE PATIENT IS VOMITING, THE
5 PATIENT HAS DEVELOPED A BOWEL OBSTRUCTION.
6 Q. OKAY.
7 A. THE PATIENT'S PRIMARY CAREGIVER HAD A HEART ATTACK AND
8 CAN'T BE THE CAREGIVER THIS WEEK AND THE PATIENT NEEDS TO
9 HAVE QUICK AND IMMEDIATE CARE FROM SOMEBODY ELSE.
10 Q. ALL RIGHT.
11 A. PNEUMONIA.
12 Q. SO THEY'RE BROUGHT INTO THE HOSPITAL SETTING.
13 A. YES.
14 Q. BUT THE REST OF THESE PATIENTS ARE TREATED IN THEIR
15 HOMES OR IN THE NURSING CARE CENTERS?
16 A. (NODS HEAD UP AND DOWN.)
17 Q. IN TERMS OF THE COMPONENT OF THESE PARTICULAR PROGRAMS
18 AS FAR AS THERE'S A VARIETY OF COMPONENTS OF COMFORT CARE AS
19 I UNDERSTAND IT; IS THAT RIGHT?
20 A. YES.
21 Q. AND PAIN MANAGEMENT IS ONE OF THOSE COMPONENTS.
22 A. THE FIRST.
23 Q. AND YOU HAVE TO EVALUATE THE PATIENT TO DETERMINE
24 WHETHER OR NOT THERE IS A NEED FOR PAIN MANAGEMENT; IS THAT
25 RIGHT?
3045
1 A. YES.
2 Q. OKAY. AND I ASSUME PART OF THAT EVALUATION WOULD TAKE
3 PLACE WITH THIS MULTIDISCIPLINARY TEAM?
4 A. WELL, YES, AND SOMETIMES IT'S -- IT'S LIMITED TO THE
5 NURSE CALLING THE PHYSICIAN AND REPORTING THAT THE PATIENT
6 IS SHOWING SIGNS AND SYMPTOMS OF PAIN.
7 Q. OKAY. IN RESPECT TO THE RECORDS THAT YOU REVIEWED, ALL
8 OF THESE WERE PATIENTS WHO WERE ADMITTED TO A GEROPSYCH
9 UNIT.
10 A. YES.
11 Q. IS THAT ACCURATE?
12 A. THAT'S TRUE.
13 Q. ARE YOU FAMILIAR WITH THE CRITERIA FOR THE ADMISSION TO
14 THE GEROPSYCH UNIT TO DAVIS HOSPITAL?
15 A. I HAVE NEVER SEEN ANY WRITTEN CRITERIA FROM DAVIS
16 HOSPITAL, NO.
17 Q. OKAY. ARE YOU FAMILIAR WITH THE GENERAL CONTEXT OF
18 CRITERIA THAT A GERIATRIC PATIENT WOULD NEED TO MEET IN
19 ORDER TO BE ADMITTED TO A GEROPSYCH UNIT?
20 A. MY UNDERSTANDING OF GEROPSYCHIATRIC CARE IS THAT IT IS
21 PRIMARILY FOR ACUTE, SEVERE BEHAVIORAL PROBLEMS OR OTHER
22 PSYCHIATRICALLY APPARENT PROBLEMS. I'LL -- YOU KNOW, I'LL
23 CLARIFY THAT IN A SECOND. BUT THAT THERE MAY BE MEDICAL
24 CONDITIONS ALSO PRESENT IN THESE PATIENTS.
25 Q. OKAY.
3046
1 A. SO WHAT I WAS ABLE TO ASCERTAIN FROM READING THESE
2 RECORDS IS THAT ALL THESE PATIENTS HAD BEHAVIORAL CHANGES
3 THAT WERE INTERPRETED AS PSYCHIATRIC, AND THEY ALL HAD
4 MEDICAL EVALUATIONS AT THE TIME OF THEIR ADMISSION BY
5 ANOTHER PHYSICIAN AT THE SAME TIME, EXCEPT ONE PATIENT WHO
6 DIED RATHER QUICKLY AFTER ADMISSION BEFORE THE INTERNIST
7 COULD ARRIVE.
8 Q. AND THAT WAS ELLEN ANDERSON?
9 A. RIGHT.
10 Q. IN RESPECT TO THE CRITERIA AS YOU UNDERSTAND IT, THESE
11 ARE ALL PATIENTS WHO WERE SUFFERING PSYCHOLOGICAL
12 PROBLEMS, IN ADDITION TO SOME MEDICAL PROBLEMS?
13 A. THE TERM PSYCHOLOGICAL CAN BE BROADLY MISCONSTRUED IN
14 MODERN MEDICINE. I'D LIKE TO KNOW WHAT YOU'RE TALKING
15 ABOUT.
16 Q. OKAY. WELL, OBVIOUSLY YOU REVIEWED THE FILES AND -- AND
17 DO YOU AGREE OR DISAGREE THAT THESE PATIENTS WERE
18 APPROPRIATE FOR CARE AT A GEROPSYCH UNIT?
19 A. THEY APPEARED TO BE APPROPRIATE FOR ADMISSION AND
20 EVALUATION IN A GEROPSYCH UNIT, YES.
21 Q. OKAY. IF I WERE TO TELL YOU THAT THE CRITERIA WAS -- IS
22 THAT THE -- THE PSYCHIATRIC OR THE -- THE MENTAL HEALTH
23 PROBLEMS WERE MORE SIGNIFICANT THAN THE MEDICAL PROBLEMS,
24 WOULD THAT COMPORT WITH -- WITH WHAT YOU --
25 A. AT THE TIME EACH ONE OF THESE PATIENTS WERE ADMITTED TO
3047
1 THIS FACILITY, THAT WAS THE MAJOR PRESENTING ISSUE --
2 Q. OKAY.
3 A. -- WAS THE PSYCHIATRIC DISTURBANCE.
4 Q. SO WHEN YOU FORM THE OPINION THAT THESE PATIENTS ARE
5 TERMINAL --
6 A. UH-HUH.
7 Q. -- THAT THEY'RE ALL SUFFERING FROM VARIOUS FORMS OF
8 DEMENTIA OR IN VARIOUS STAGES OF DEMENTIA, AS YOU'VE
9 INDICATED, THAT MEANS THAT THEY COULD HAVE UP TO SIX MONTHS
10 TO LIVE; IS THAT CORRECT?
11 A. YES.
12 Q. OKAY. SO THERE WAS NO IMMEDIATE ACUTE EVENT THAT YOU'D
13 SEEN AT THE TIME OF ADMISSION --
14 A. RIGHT.
15 Q. -- WHICH WOULD --
16 A. RIGHT.
17 THE COURT: WAIT UNTIL HE FINISHES THE QUESTION.
18 GO AHEAD. FINISH YOUR QUESTION.
19 Q. (BY MR. WILSON) WHICH WOULD INDICATE TO YOU THAT THEY
20 WERE IN A DYING PROCESS, AS IT'S BEEN DESCRIBED?
21 A. NONE OF THESE PATIENTS WERE APPARENTLY WITHIN A FEW DAYS
22 OF DEATH WHEN THEY WERE ADMITTED TO THE HOSPITAL.
23 Q. OKAY. AND WOULD THAT BE THE SAME OPINION AS IT RELATES
24 TO ELLEN ANDERSON?
25 A. YES.
3048
1 Q. OKAY. YOU PREVIOUSLY TESTIFIED THAT -- STRIKE THAT.
2 THAT YOU BASED YOUR PROGNOSIS OR YOUR DIAGNOSIS, I GUESS, OF
3 EACH OF THESE PATIENTS ON CERTAIN TYPES OF CRITERIA THAT HAD
4 BEEN DEVELOPED; IS THAT CORRECT?
5 A. YES.
6 Q. ONE OF THOSE CRITERIA, I THINK YOU IDENTIFIED AS -- AS
7 THE F.A.S.?
8 A. FUNCTIONAL ASSESSMENT SCALE, YES.
9 Q. FUNCTIONAL ASSESSMENT SCALE. I'M GOING TO SHOW YOU A
10 CHART -- MAYBE WE CAN TURN THAT -- WELL, I'LL LEAVE IT ON
11 FOR A MINUTE. MAYBE YOU COULD JUST STEP OVER HERE AND TAKE
12 A LOOK AT THAT CHART, IF YOU WOULD, DOCTOR.
13 A. YES.
14 Q. DO YOU RECOGNIZE THAT PARTICULAR CHART?
15 A. YES.
16 Q. AND WHAT IS THAT?
17 A. THIS IS THE LISTINGS OF SOME OF THE FINDINGS IN THE
18 FUNCTIONAL ASSESSMENT SCALE WITH A STUDY THAT WAS DONE
19 SHOWING WHAT SOME OF THE LIFE EXPECTANCIES WERE FOR SOME OF
20 THE PATIENTS IN THIS STUDY.
21 Q. NOW, I THINK YOU'VE TESTIFIED AS TO A NUMBER OF THOSE
22 FINDINGS --
23 A. RIGHT.
24 Q. -- AND AS TO WHERE THEY WOULD BE ON THE STAGE OF THAT
25 CHART.
3049
1 A. RIGHT.
2 Q. AND YOU'VE ALSO INDICATED IN YOUR REPORT, HAVE YOU NOT,
3 CERTAIN STAGES THAT THOSE INDIVIDUAL --
4 A. RIGHT.
5 Q. -- WOULD BE IN ACCORDING TO THAT PARTICULAR CHART?
6 A. THAT'S CORRECT.
7 Q. OKAY.
8 A. BUT THE CRITERIA -- THE N.H.O. CRITERIA FOR ADMISSION OF
9 A PROGNOSIS OF SIX MONTHS OR LESS ONLY AS TO THE FUNCTIONAL
10 ASSESSMENT SCALE IS ONE COMPONENT. THERE ARE A NUMBER OF
11 OTHER PIECES OF THAT.
12 Q. I -- I APPRECIATE THAT, DOCTOR, AND I'LL GET TO THAT IN
13 JUST A MINUTE.
14 A. RIGHT.
15 Q. WOULD YOU TELL ME THOUGH IN TERMS OF YOUR FINDINGS AS TO
16 7(A) AND 7(B), DOES THAT CHART REPRESENT AS PART OF THAT
17 COMPONENT THAT THESE INDIVIDUALS WOULD BE -- YEARS TO DEATH
18 WOULD BE SIX TO FIVE YEARS?
19 A. ACCORDING TO THAT STUDY, IT COULD BE, YES --
20 Q. YES.
21 A. -- THAT LONG, IF THERE WERE NOTHING ELSE WRONG.
22 Q. HAVE A SEAT, IF YOU WOULD, PLEASE.
23 ARE YOU FAMILIAR WITH THE DIAGNOSIS OF DELIRIUM?
24 A. I AM.
25 Q. CAN YOU EXPLAIN TO THE JURY WHAT IS DELIRIUM?
3050
1 A. DELIRIUM IS USUALLY AN ACUTE CHANGE IN MENTAL STATUS
2 OFTEN BROUGHT ON BY ANOTHER DISORDER, ACUTE ILLNESS OF SOME
3 SORT.
4 Q. AND DELIRIUM IS TREATABLE, IS IT NOT?
5 A. SOMETIMES. USUALLY. WHETHER WE WANT TO TREAT IT OR NOT
6 IS ALSO DETERMINED BY THE PATIENT'S ADVANCE DIRECTIVES.
7 Q. SO IT'S AN ORDER OF AN ACUTE NATURE?
8 A. IT CAN BE SUBACUTE IN THAT IT CAN DEVELOP FAIRLY SLOWLY
9 OVER A PERIOD OF SEVERAL DAYS TO WEEKS, BUT IT IS USUALLY A
10 SYMPTOM OF TOXICITY SUCH AS KIDNEY FAILURE OR AN INFECTION,
11 SOMETHING LIKE THAT.
12 Q. COULD IT ALSO BE INDUCED AS A RESULT OF MEDICATIONS?
13 A. OCCASIONALLY.
14 Q. AND DO -- DOES -- CAN YOU HAVE DELIRIUM AND DEMENTIA
15 BOTH?
16 A. YES.
17 Q. BY THE WAY, DOCTOR, IS DEMENTIA -- IS IT VERY DIFFICULT
18 TO DIAGNOSE?
19 A. SOME KINDS OF DEMENTIA IN THE EARLY STAGES ARE EXTREMELY
20 DIFFICULT TO DIAGNOSE. ADVANCED DEMENTIA IS NOT SO HARD.
21 Q. AND ALL OF THESE PATIENTS, AS I UNDERSTAND IT, SUFFERED
22 FROM NOT NECESSARILY ADVANCED DEMENTIA IN EVERY CASE, BUT
23 THEY WERE IN THE LATER STAGES OF DEMENTIA?
24 A. WELL, THEY WERE ALL CONSIDERED ADVANCED. I MEAN,
25 WHETHER OR NOT THEY WERE RIGHT AT THE TERMINAL STAGES OR
3051
1 NOT --
2 Q. OKAY.
3 A. -- TWO OF THEM I WASN'T SO SURE, BUT --
4 Q. OKAY.
5 A. THEY WERE ILL ENOUGH FROM THEIR DEMENTIA TO REQUIRE THAT
6 THEY WERE IN NURSING HOMES. THEY WEREN'T -- THE FAMILIES
7 COULDN'T CARE FOR THEM AT HOME.
8 Q. DID YOU SEE ANYTHING IN THE REVIEW OF YOUR RECORDS WHICH
9 WOULD CAUSE YOU TO BELIEVE THAT ANY OF THESE PATIENTS WERE
10 SUFFERING FROM DELIRIUM?
11 A. NO. WHEN I WAS READING THROUGH THE RECORDS, THE
12 SYMPTOMS OF IMPENDING DEATH VERY OFTEN WERE CONCOMITANT WITH
13 THE CHANGING MENTAL STATUS. NOW, IF YOU WANT TO CALL
14 IMPENDING DEATH A REASON FOR DELIRIUM, PERHAPS, BUT THE
15 REAL, YOU KNOW, ORIGINAL REASONS PEOPLE WERE COMING INTO THE
16 FACILITY WAS LIKE, YOU KNOW, A PATIENT WHO WAS THROWING HIS
17 WHEELCHAIR AROUND OR SOMEBODY ELSE WHO WAS, YOU KNOW,
18 BELLIGERENT AND FALLING. DIDN'T -- THOSE DID NOT SEEM TO BE
19 EPISODES OF DELIRIUM. THEY'D BEEN PRESENT FOR QUITE A LONG
20 TIME AND HAD BEEN FAIRLY STABLE, BUT GETTING WORSE IN THEIR
21 OTHER FACILITIES.
22 Q. THE -- AS I UNDERSTAND YOUR TESTIMONY IN EACH OF THESE
23 PATIENTS YOU'RE SAYING THAT THEY ENTERED -- OR THEY MET THE
24 CRITERIA FOR BEING IN THE GEROPSYCH UNIT AND IT WAS
25 APPROPRIATE THAT THEY BE ADMITTED TO THE GEROPSYCH UNIT.
3052
1 AND THEN YOU'RE SAYING IN EACH INSTANCE, EACH OF THESE
2 PATIENTS, THESE FIVE PATIENTS, SUFFERED AN ACUTE EVENT?
3 A. IT HAPPENS ALL THE TIME IN GERIATRIC CARE. YES, SIR.
4 Q. AND -- AND THEY ALL SUFFERED THIS ACUTE EVENT AND THAT'S
5 WHAT PRECIPITATED THE DYING PROCESS; IS THAT RIGHT?
6 A. YES, SIR. UH-HUH.
7 Q. OKAY. NOW, LET'S -- LET ME, IF -- IF I CAN, I NEEDED
8 TO -- TO TALK A LITTLE BIT ABOUT THESE ADVANCE DIRECTIVES.
9 AND YOU'VE REFERENCED THEM A NUMBER OF TIMES IN -- IN YOUR
10 TESTIMONY, AS FAR AS THAT GOES. YOU'VE INDICATED THAT AS
11 PART OF THE ADMISSION PROCESS THE PATIENT IS ADVISED OF
12 THEIR RIGHT TO DESIGNATE ADVANCE DIRECTIVES; IS THAT
13 CORRECT?
14 A. I BELIEVE THE LANGUAGE IN THE LAW IS THE HOSPITAL OR
15 OTHER HEALTH CARE FACILITY IS REQUIRED TO ASK IF THE PATIENT
16 HAS ADVANCE DIRECTIVES.
17 Q. OKAY. AND IF THEY ANSWER NO, ARE THEY ADVISED OF
18 CERTAIN RIGHTS?
19 A. YES.
20 Q. OKAY. AND IS THERE OPPORTUNITY TO SIT DOWN AND EXPLAIN
21 TO EACH ONE OF THESE PATIENTS WHAT THOSE RIGHTS ARE AND WHAT
22 THEY ENTAIL?
23 A. I DON'T UNDERSTAND THE QUESTION.
24 Q. WELL, AS PART OF THAT PROCESS, I ASSUME -- ARE YOU
25 FAMILIAR WITH INFORMED CONSENT?
3053
1 A. I'M VERY FAMILIAR WITH INFORMED CONSENT.
2 Q. OKAY.
3 A. BUT I STILL DON'T UNDERSTAND YOUR QUESTION.
4 Q. OKAY. DOES THE PATIENT HAVE A RIGHT TO BE INFORMED AS
5 TO THE VARIOUS TYPES OF LIFESAVING MEASURES OR OTHER
6 MEASURES THAT MAY BE TAKEN OR ALTERNATIVES FOR TREATMENT?
7 A. YES.
8 Q. OKAY. DOES THE PATIENT -- IT'S MY UNDERSTANDING THE
9 PATIENT IS ADVISED RELATIVE TO ALL ALTERNATIVES; IS THAT
10 CORRECT?
11 A. I WANT TO COME BACK TO THE ORIGINAL QUESTION BECAUSE THE
12 LAW SAYS YOU HAVE TO ASK PATIENTS IF THEY HAVE ADVANCE
13 DIRECTIVES AND ADVISE THEM OF THEIR RIGHTS. IT DOES NOT SAY
14 YOU HAVE TO TALK TO THEM ABOUT IT.
15 Q. OKAY.
16 A. AND, IN FACT, VERY FEW FACILITIES DO ANYTHING MORE THAN
17 ASK IF THEY HAVE ADVANCE DIRECTIVES AND ADVISE THEM OF THEIR
18 RIGHTS.
19 Q. OKAY.
20 A. SO WHEN WE GET INTO WHAT SHOULD BE PART OF THE
21 DISCUSSION ABOUT ADVANCE DIRECTIVES, IT'S GETTING A LITTLE
22 FAR.
23 Q. WELL, LET ME RECHARACTERIZE MY QUESTION THEN, IF I
24 MIGHT, DOCTOR.
25 DOES THERE COME A TIME IN THIS EVALUATION PROCESS WITH
3054
1 THE PATIENT WHO'S ADMITTED TO HOSPICE CARE WHERE YOU SIT
2 DOWN AND YOU TALK ABOUT THE NEEDS OF THAT PATIENT?
3 A. YES.
4 Q. AND I ASSUME AS PART OF THAT YOU TALK ABOUT VARIOUS
5 FORMS OF TREATMENT?
6 A. WE TALK ABOUT VARIOUS FORMS OF -- OF ALL KINDS OF
7 TREATMENT, YES.
8 Q. AND YOU -- YOU BRING THE MULTIDISCIPLINARY TEAM IN --
9 APPROACH, AND YOU -- YOU ADDRESS ALL KINDS OF NEEDS,
10 INCLUDING EVEN THEOLOGICAL NEEDS OR RELIGION NEEDS; IS THAT
11 CORRECT?
12 A. WE ADDRESS SPIRITUAL CARE. YES, SIR.
13 Q. SPIRITUAL CARE. EXCUSE ME. AND, ALSO, YOU TALK WITH
14 THAT PATIENT ABOUT DEATH AND DYING ISSUES.
15 A. WE ESPECIALLY TRY TO HELP THE FAMILY UNDERSTAND WHAT'S
16 GOING TO HAPPEN. WE TREAT THE PATIENT AND FAMILY AS A UNIT
17 OF CARE. MASLOW'S HIERARCHY OF HUMAN NEEDS SHOWS THE FIRST
18 NEEDS ARE PHYSICAL, THE SECOND ARE FOR INFORMATION AND
19 PREDICTABILITY.
20 Q. OKAY. NOW, YOU PREVIOUSLY TESTIFIED AS TO SOME NEED
21 FOR -- IN THE OVERALL EVALUATION, PARTICULAR IN THE DYING
22 PROCESS, FOR THIS PATIENT TO BE ABLE TO SAY GOODBYE.
23 A. THAT'S RIGHT.
24 Q. AND TO TELL HIS LOVED ONES HE LOVES THEM.
25 A. THAT'S CORRECT.
3055
1 Q. AND FORGIVE ME.
2 A. THAT'S CORRECT.
3 Q. IF I RECALL; IS THAT RIGHT?
4 A. YES. THAT WAS QUOTING IRA BYOCK.
5 Q. OKAY. I WOULD TAKE IT THEN AND I WOULD ASSUME THAT IN
6 ORDER TO ACCOMPLISH THAT OBJECTIVE, THE PATIENT HAS TO HAVE
7 SOME LEVEL OF COGNITIVE FUNCTION TO BE ABLE TO RESPOND IN
8 THAT MANNER.
9 A. MANY TIMES PATIENTS ARE UNABLE TO DO THAT VERBALLY.
10 MANY TIMES IT'S THE FAMILIES WHO HAVE TO DO THE SAYING
11 GOODBYE. PATIENTS WHO ARE DYING ARE VERY RARELY BRIGHT AND
12 ALERT AND AWAKE AT THE END OF LIFE. HOPEFULLY THESE
13 PROCESSES HAVE TAKEN PLACE OVER A PERIOD OF TIME PRIOR TO
14 THE -- TO THE DEATH.
15 IT'S INTERESTING, YOU KNOW, WHEN WE LOOK AT HOW --
16 Q. EXCUSE ME, DOCTOR. I THINK YOU'VE ANSWERED MY QUESTION.
17 A. OKAY.
18 Q. IN RESPECT TO THAT PROCESS, YOU HAVE TO EVALUATE AS THE
19 PHYSICIAN, DO YOU NOT, YOU HAVE TO BALANCE OUT WHAT LEVEL OF
20 CARE YOU GIVE THIS PATIENT AND TREATMENT YOU GIVE THIS
21 PATIENT IN ORDER TO MAINTAIN A CERTAIN LEVEL OF
22 CONSCIOUSNESS, DO YOU NOT?
23 A. WELL, IF WE'RE TALKING IN THEORETICAL TERMS, I'LL SAY
24 YES. IF WE'RE TALKING ABOUT THESE PATIENTS WITH ADVANCED
25 DEMENTIA WHO CANNOT MAKE THEIR OWN DECISIONS AND WHO HAVE
3056
1 SURROGATE DECISION MAKERS, THEN THE WHOLE CONVERSATION HAS
2 TO TAKE PLACE WITH THOSE SURROGATE DECISION MAKERS.
3 Q. OKAY.
4 A. AND IT DID IN EACH ONE OF THESE CASES.
5 Q. YOU -- YOU ASSUME THAT IT DID.
6 A. IT'S RECORDED IN THE MEDICAL RECORD THAT IT DID.
7 THE COURT: MR. WILSON?
8 Q. (BY MR. WILSON) AND IT'S RECORDED BY WHOM, DOCTOR?
9 THE COURT: EXCUSE ME. MR. WILSON, HOW MUCH LONGER
10 DO YOU THINK YOU'RE GOING TO BE?
11 MR. WILSON: I THINK I'LL BE A LITTLE WHILE, YOUR
12 HONOR.
13 THE COURT: OKAY. THEN WE'VE BEEN GOING ABOUT AN
14 HOUR AND 15 MINUTES. THIS MIGHT BE A GOOD PLACE TO TAKE OUR
15 SECOND BREAK.
16 LADIES AND GENTLEMEN, DURING THIS BREAK REMEMBER IT'S
17 YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR TO CONVERSE
18 WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON
19 ON THE SUBJECT OF THIS TRIAL.
20 IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
21 THE CASE IS FINALLY SUBMITTED TO YOU.
22 AND LET'S COME BACK AT ABOUT 15 AFTER.
23 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
24 PROCEEDINGS RESUME, AS FOLLOWS:)
25 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
3057
1 HAS RETURNED.
2 MR. WILSON, IF YOU'D LIKE TO CONTINUE.
3 MR. WILSON: THANK YOU, YOUR HONOR.
4 Q. (BY MR. WILSON) IF I REMEMBER RIGHT, DOCTOR, I THINK
5 THE LAST QUESTION I ASKED YOU PERTAINED TO A QUESTION AS
6 WHERE DID YOU RECEIVE YOUR INFORMATION AS IT RELATED TO
7 DISCUSSIONS WITH THE FAMILY REGARDING THESE PATIENTS'
8 CONDITIONS?
9 A. FROM MY REVIEW OF THE MEDICAL RECORDS.
10 Q. OKAY. AND IN PARTICULAR, WHAT NOTES DID YOU REFERENCE
11 IN RESPECT TO THOSE DISCUSSIONS?
12 A. I DIDN'T WRITE DOWN THE SPECIFICS, SO IF WE WANT TO GO
13 NOTE BY NOTE IT WILL TAKE A LITTLE TIME. BUT, BASICALLY,
14 THERE WERE NOTES FROM THE PHYSICIANS, THE NURSES, THERE WAS
15 A SOCIAL WORKER'S NOTE ON ONE. THERE WERE A NUMBER OF
16 VARIOUS NOTES, AND REPEATED NOTES ON SEVERAL OF THE PATIENTS
17 ABOUT THE END-OF-LIFE CARE DIRECTIVES THAT WERE BEING STATED
18 BY THE FAMILIES.
19 Q. OKAY. A NUMBER OF THOSE NOTES WERE FROM THE DEFENDANT
20 HIMSELF, RIGHT?
21 A. SOME OF THEM WERE FROM THE NURSES AS WELL.
22 Q. NOW, IN RESPECT TO THE DYING PROCESS, AS TO THE EVENT
23 THAT PRECIPITATES THIS IMMEDIATE DYING PROCESS, CAN YOU TELL
24 US, DOCTOR, HOW DID YOU GO ABOUT ASCERTAINING WHEN THAT
25 OCCURRED?
3058
1 A. ON WHICH PATIENT?
2 Q. WELL, LET'S -- LET'S -- LET'S TALK ABOUT MARY CRANE.
3 A. OKAY. SORRY. OKAY. I HAVE MARY CRANE'S RECORD.
4 Q. CAN YOU TELL THE COURT AND THE JURY JUST WHEN IT WAS YOU
5 DETERMINED, FROM YOUR REVIEW OF THE MEDICAL RECORDS, THAT
6 MARY CRANE WAS -- HAD SUFFERED THIS ACUTE EVENT?
7 A. THERE HAD BEEN A SERIES OF NOTES BOTH FROM PHYSICIANS
8 AND NURSES THAT HAD INDICATED THE PATIENT HAD DEVELOPED A
9 FISTULA. STOOL HAD BEEN NOTED IN THE VAGINA ON JANUARY 1ST.
10 THERE WAS A CONSULTANT -- G.Y.N. CONSULTANT WHO SAW THE
11 PATIENT WHO HAD RECOMMENDED ANTIBIOTICS AND SAID TO CONSIDER
12 SURGERY IF HER PSYCHIATRIC SYMPTOMS COULD BE IMPROVED.
13 AND THEN ON 1/3/96 THERE IS A NURSING NOTE SAYING THAT
14 THE PATIENT IS CRYING OUT, GROANING, AND YELLING, AND THAT
15 THE PATIENT HAD A FEVER.
16 IT WAS AT THIS POINT IN TIME THAT THINGS WERE BEGINNING
17 TO GO REALLY DOWNHILL FOR THIS PATIENT. AND YOU CAN SEE
18 OVER A PERIOD OF THE NURSING NOTES AND PHYSICIAN NOTES FROM
19 THEN ON THERE'S AN INCREASING NUMBER OF PROBLEMS FOR HER
20 WITH THIS RECTOVAGINAL FISTULA.
21 Q. OKAY.
22 A. AND THEN LATER ANOTHER ANTIBIOTIC WAS STARTED, AND ON
23 1/7 THE PATIENT BECAME HYPOTENSIVE -- IN OTHER WORDS, HER
24 BLOOD PRESSURE FELL, AND HER BLOOD OXYGEN SATURATIONS WERE
25 LOW. THEY THOUGHT SHE HAD ASPIRATION PNEUMONIA. AND,
3059
1 AGAIN, YOU KNOW, THE GOALS OF CARE WERE AGAIN DISCUSSED WITH
2 THE FAMILY.
3 Q. AS I UNDER -- I DON'T MEAN TO INTERRUPT YOU, BUT AS I
4 UNDERSTAND IT, YOU'RE SAYING THINGS STARTED TO GO DOWNHILL
5 ON THE 3RD OF JANUARY?
6 A. RIGHT.
7 Q. WHICH IS APPROXIMATELY FIVE DAYS AFTER ADMISSION; IS
8 THAT CORRECT?
9 A. IT WAS SIX OR SEVEN.
10 Q. OKAY. SHE WAS ADMITTED ON THE 28TH OF DECEMBER?
11 A. RIGHT. 28, 29, 30, 31, THERE WAS FOUR DAYS.
12 Q. ANYWAY, SOMEWHERE BETWEEN THAT TIME FRAME. AND ON
13 JANUARY 3RD IS IN YOUR ESTIMATION WHEN SHE FIRST STARTS
14 SHOWING SIGNS OF SUBSTANTIAL DETERIORATION.
15 A. RIGHT.
16 Q. IS THAT YOUR TESTIMONY?
17 A. THAT SHE WAS -- THAT THE TERMINAL INTERCURRENT ILLNESS
18 WAS BEING IDENTIFIED.
19 Q. OKAY. AND THAT TERMINAL INTERCURRENT ILLNESS, AS I
20 UNDERSTAND IT, IN YOUR OPINION, WAS A SEPTICEMIA?
21 A. YES.
22 Q. AND THE PROCESS OF SEPTICEMIA IS ONE OF BACTERIA FROM AN
23 INFECTION THAT IS DISTRIBUTED THROUGHOUT THE BODY IN THE
24 BLOOD?
25 A. RIGHT.
3060
1 Q. OKAY. YOU HOLD SOME BOARD CERTIFICATIONS, I THINK,
2 IN -- WAS IT ONCOLOGY AND ALSO IN HEMATOLOGY?
3 A. I AM BOARD ELIGIBLE IN ONCOLOGY. I NEVER SAT THE EXAM.
4 THAT'S WHEN I WAS HAVING KIDS.
5 Q. OKAY. IN HEMATOLOGY --
6 A. YES.
7 Q. -- AND THAT'S THE STUDY OF THE BLOOD?
8 A. IT INCLUDES ALL THE BLOOD DISEASES, YES.
9 Q. ALL THE BLOOD DISEASES. IS SEPTICEMIA A BLOOD DISEASE?
10 A. NO, IT'S AN INFECTIOUS DISEASE.
11 Q. IT'S AN INFECTIOUS DISEASE. SO DO YOU HAVE ANY
12 EXPERTISE IN INFECTIOUS DISEASES?
13 A. ANYONE WHO TREATS CANCER PATIENTS TREATS INFECTIONS.
14 Q. OKAY. AND IN RESPECT TO YOUR REVIEW OF THESE RECORDS,
15 YOUR OPINION IS IS THIS PATIENT DIED AS A RESULT OF THIS
16 SEPTICEMIA?
17 A. YES.
18 Q. NOW, IN THE PROCESS OF THE SEPTICEMIA, THE INFECTION OF
19 THE BLOOD, HOW DOES THAT DYING PROCESS TAKE PLACE?
20 A. IT'S VERY SIMILAR TO ALL DYING PROCESSES. THE PROCESS
21 OF THE BODY SHUTTING DOWN IS THAT THE BLOOD PRESSURES FALL
22 AND THE PATIENT GETS MORE -- MORE COMATOSE --
23 Q. DOES THE INFECTION INVADE ORGANS OF THE BODY?
24 A. IT MAY.
25 Q. SO IT WOULD VARY AS TO HOW THE PATIENT WOULD DIE AS FAR
3061
1 AS THE -- THE DEGREE OF -- OF INFECTION?
2 A. IT WOULD VARY WITH THE NUMBER OF OTHER PROBLEMS THE
3 PATIENT HAS AS WELL. EACH PATIENT IS UNIQUE IN THAT THEY'RE
4 A UNIQUE CONSTELLATION OF BIOLOGY AND OTHER DIAGNOSES. THIS
5 IS A PATIENT, MARY CRANE, WHO HAD PRIOR C.V.A.'S DUE TO
6 VASCULAR DISEASE IN HER BRAIN.
7 Q. UH-HUH.
8 A. THAT'S GOING TO AFFECT HOW THE DISEASE AFFECTS HER.
9 SHE'S HAD PSYCHOGENIC POLYDIPSIA WITH LOW BLOOD SODIUMS OVER
10 YEARS PRIOR TO THIS. THAT'S GOING TO AFFECT HOW THE
11 SEPTICEMIA AFFECTS HER. SHE'S HAD HYPERTENSION AND SHE'S
12 HAD ULCERS, SO ON.
13 Q. AGAIN, IF I MIGHT INTERRUPT YOU, DOCTOR. I'M SORRY.
14 I -- I JUST WANT TO FOCUS ON THIS SEPTICEMIA.
15 A. WELL, I DON'T THINK YOU CAN FOCUS JUST ON THE SEPTICEMIA
16 IS WHAT I'M TRYING TO SAY.
17 Q. YOU'RE SAYING THAT -- YOU'RE SAYING THE INFECTION COULD
18 HAVE AGGRAVATED THESE OTHER CONDITIONS?
19 A. YES, SIR.
20 Q. OKAY. AND THAT COULD HAVE CREATED THE DEATH OF THIS
21 PATIENT?
22 A. YES.
23 Q. BUT THE PRIMARY CAUSE OF THAT DEATH WOULD THEN BE THE
24 INFECTIOUS DISEASE PROCESS?
25 A. I WOULD SAY SO.
3062
1 Q. OKAY. AND DO YOU HOLD ANY EXPERTISE IN FORENSIC
2 PATHOLOGY?
3 A. NO, I DON'T.
4 Q. OKAY. LET'S TALK ABOUT LYDIA SMITH. EXCUSE ME. BEFORE
5 WE GET ON TO LYDIA SMITH, I'D JUST -- I JUST WANT TO ASK YOU
6 SOME QUESTIONS ABOUT MARY CRANE, FOLLOW-UP QUESTIONS.
7 DID YOU REVIEW THE -- AS YOU REFERRED TO THEM -- THE
8 ADVANCE DIRECTIVES IN THE -- IN THE FILES THAT YOU -- THE
9 HOSPITAL FILES YOU REVIEWED? DID YOU HAVE OCCASION TO LOOK
10 AT ANY OF THOSE ADVANCE DIRECTIVES?
11 A. IF THEY WERE HERE, I LOOKED AT THEM. I'M TRYING TO SEE
12 IF THE COPIES ARE IN THIS PARTICULAR --
13 Q. NOW, WHEN WE TALK ABOUT ADVANCE DIRECTIVES, WE TALK
14 ABOUT A NUMBER OF DIFFERENT TYPES OF DOCUMENTS, DO WE NOT?
15 A. YES, SIR.
16 Q. AND THOSE DOCUMENTS COULD BE ANYWHERE FROM A SPECIAL
17 POWER OF ATTORNEY APPOINTING A FAMILY MEMBER TO ACT ON
18 BEHALF OF A PATIENT -- THAT WOULD BE ONE ADVANCE DIRECTIVE;
19 IS THAT CORRECT?
20 A. DURABLE POWER OF ATTORNEY FOR HEALTH CARE? YES, SIR.
21 Q. PARDON?
22 A. THEY CALL IT A DURABLE POWER OF ATTORNEY FOR HEALTH
23 CARE.
24 Q. OKAY. AS TO ANOTHER TYPE OF ADVANCE DIRECTIVE, IT COULD
25 BE ENTITLED A MEDICAL TREATMENT PLAN? WOULD YOU BE FAMILIAR
3063
1 WITH THAT ONE?
2 A. NOT THAT ONE BY THAT NAME. IS THAT A UTAH FORM?
3 Q. AND THERE ARE OTHER TYPES OF ADVANCE DIRECTIVES SUCH AS
4 THOSE DEALING WITH -- LET ME SEE IF I CAN FIND IT HERE.
5 A. THEY'RE COMMONLY CALLED A LIVING WILL.
6 Q. A LIVING WILL. WHEN A -- I THINK YOU'VE PREVIOUSLY
7 TESTIFIED WHEN A PATIENT IS ADMITTED TO A HOSPITAL FACILITY
8 OR A MEDICAL FACILITY, THEY'RE ASKED THE QUESTION, HAVE YOU
9 EXECUTED AN ADVANCE DIRECTIVE?
10 A. YES.
11 Q. AND USUALLY THEY WILL -- IF THEY ANSWER YES, THEY WILL
12 PROVIDE THAT TO THE HOSPITAL AT THAT TIME?
13 A. OR THEY'LL TELL THEM WHERE THEY CAN FIND A COPY, IF THE
14 PATIENT'S AWARE ENOUGH TO BE ABLE TO DO THAT.
15 Q. OKAY. SOME OF THOSE ADVANCE DIRECTIVES WOULD ALSO
16 ENTAIL THE -- I GUESS WHAT YOU WOULD CALL A DO NOT
17 RESUSCITATE ORDER?
18 A. YES.
19 Q. NOW, TYPICALLY, WHEN ARE ALL OF THESE DOCUMENTS SIGNED?
20 A. AT THE TIME OF ADMISSION.
21 Q. OKAY.
22 A. IF THEY'RE PRESENT.
23 Q. OKAY. SO IF A PERSON IS ADMITTED, AND AT THE TIME OF
24 THEIR ADMISSION THEY ARE IN STABLE MEDICAL CONDITION, AND
25 SUBSEQUENTLY DEVELOP AN ACUTE EVENT, IS THERE ANY PROCESS
3064
1 THAT THE PHYSICIAN IS SUPPOSED TO GO THROUGH OR -- IN TERMS
2 OF MEETING WITH WHOEVER -- A FAMILY MEMBER OR WHOEVER IS THE
3 REPRESENTATIVE FOR THAT INDIVIDUAL?
4 A. YOUR QUESTION'S A LITTLE VAGUE. LET ME SEE IF I CAN GET
5 IT HERE.
6 Q. LET ME -- LET ME FRAME -- LET ME FRAME IT THIS WAY.
7 A. ARE YOU ASKING IF THERE'S SOMETHING IN WRITING?
8 Q. PARDON?
9 A. OR IS THERE A MEDICAL PRACTICE TRADITION OR SOMETHING IN
10 WRITING OR WHAT ARE YOU ASKING ABOUT?
11 Q. WELL, LET'S USE MARY CRANE AS AN EXAMPLE.
12 A. UH-HUH.
13 Q. SHE COMES IN ON THE 28TH. I'LL SHOW YOU, FIRST OF ALL,
14 WHICH IS -- IF YOU'LL PULL OUT HER FILE, AND IT'S LOCATED
15 UNDER MISCELLANEOUS DOCUMENTS. IT'S PAGE 001. I CAN'T --
16 THE COURT: IT'S THE OTHER SIDE.
17 MR. WILSON: OH, I GOT THE WRONG SIDE.
18 Q. (BY MR. WILSON) HAVE YOU BEEN ABLE TO FIND THAT UNDER
19 MISCELLANEOUS DOCUMENTS?
20 A. NO. I HAVE STARTING WITH 00229.
21 MR. WILSON: MAY I APPROACH, YOUR HONOR?
22 (WHEREUPON, AT THIS TIME THERE'S AN OFF-THE-RECORD
23 DISCUSSION BETWEEN MR. WILSON AND MS. BARLOW.)
24 Q. (BY MR. WILSON) OH, EXCUSE ME. I'VE GOT THE WRONG
25 NUMBERS. IT'S MED NUMBER-0338. I APOLOGIZE, DOCTOR -- OR
3065
1 336 IS THE ONE I WAS --
2 A. 336?
3 Q. YEAH. I KEEP DOING IT THE WRONG WAY. UNDER
4 MISCELLANEOUS.
5 A. I DON'T HAVE A MISCELLANEOUS.
6 Q. OR EXCUSE ME. UNDER MED.
7 A. MEDICAL/LEGAL, 336. YES, I HAVE IT.
8 THE COURT: OKAY. GO AHEAD.
9 Q. (BY MR. WILSON) CAN YOU SEE THAT DOCUMENT?
10 A. YES.
11 Q. NOW, DOES THAT APPEAR TO BE A -- AN ADVANCE DIRECTIVE TO
12 YOU?
13 A. IT'S A -- IN A FORM OF AN ADVANCE DIRECTIVE WE CALL
14 INTENSITY OF CARE PREFERENCE. IT'S COMMON --
15 Q. A WHAT?
16 A. INTENSITY OF CARE PREFERENCE.
17 Q. OKAY. NOW, THAT ONE'S DATED 3/21/91; IS THAT CORRECT?
18 A. YES. THAT WOULD HAVE PROBABLY BEEN FILLED OUT WHEN SHE
19 FIRST ENTERED A NURSING HOME OR SOME OTHER SIMILAR
20 RESIDENTIAL CARE FACILITY.
21 Q. AND THEN WE COME TO THE TIME OF HER HOSPITALIZATION AT
22 THE GEROPSYCH UNIT, AND AT THAT TIME I REFER YOU TO MED-0339
23 WHERE SHE EXECUTES A SPECIAL POWER OF ATTORNEY.
24 A. THAT WAS ON DECEMBER 28TH OF '95, YES.
25 Q. SO THAT WAS ON THE SAME DATE, AND THIS HAS BEEN
3066
1 TESTIFIED TO AS EXECUTED BY MARY CRANE ON THAT DATE.
2 A. UH-HUH.
3 Q. NOW, WOULD THAT -- THE FACT THAT SHE WAS ABLE TO READ
4 AND SIGN OFF ON A SPECIAL POWER OF ATTORNEY GIVE YOU ANY
5 INDICATION, AS A PHYSICIAN, AS TO HER MENTAL STATE AND
6 CAPABILITIES AT THAT TIME?
7 A. IT WOULD MAKE YOUR QUESTION WHICH OF THE TWO WAS THE
8 MOST ACCURATE, WHETHER SHE WAS, IN FACT, COMBATIVE AND
9 SEVERELY DEPRESSED, ALTHOUGH SHE COULD HAVE BEEN -- HAD THE
10 CAPACITY TO SIGN A DURABLE POWER OF ATTORNEY WITH SEVERE
11 DEPRESSION.
12 Q. AS I UNDERSTAND IT, IN YOUR PREVIOUS TESTIMONY SHE WAS,
13 IN YOUR OPINION, SUFFERING FROM ADVANCED DEMENTIA, BUT I
14 THINK YOU DID QUALIFY THAT SHE WASN'T AS FAR DOWN THAT
15 DEMENTIA ON THE -- ON THE F.A.S. --
16 A. THAT'S CORRECT.
17 Q. OKAY. LET ME SHOW YOU NOW MED-00341. CAN YOU IDENTIFY
18 THAT PARTICULAR DOCUMENT?
19 A. YES, SIR.
20 Q. HAVE YOU SEEN IT BEFORE?
21 A. YES, SIR.
22 Q. WHAT DOES THAT PURPORT TO BE, DOCTOR?
23 A. THIS IS ANOTHER INTENSITY OF CARE CHOICE LIST SIGNED BY
24 HER DURABLE POWER.
25 Q. OKAY. THIS WAS SIGNED BY THE DAUGHTER AS A RESULT OF
3067
1 THE POWER OF ATTORNEY, RIGHT?
2 A. RIGHT.
3 Q. ON THE 28TH. AND IT ALSO BEARS THE SIGNATURE OF THE
4 ATTENDING PHYSICIAN, DOES IT NOT?
5 A. YES.
6 Q. AND THERE'S A DATE BY THE ATTENDING PHYSICIAN OF
7 12/30/95.
8 A. UH-HUH.
9 Q. WHICH IS TWO DAYS AFTER THIS IS SIGNED BY THE -- BY THE
10 PATIENT OR THE PATIENT'S REPRESENTATIVE, RIGHT?
11 A. YES, SIR.
12 Q. NOW, THE QUESTION IS, THE PATIENT COMES IN, THEY MEET
13 THE CRITERIA OF ADMISSION TO THE GEROPSYCH UNIT. AS MARY
14 CRANE -- AS YOU INDICATED -- DEVELOPS A SEPTICEMIA ON THE
15 3RD, WHICH STARTS HER ON A DOWNHILL PROGRESS, ACCORDING TO
16 YOUR TESTIMONY --
17 A. UH-HUH.
18 Q. -- IS THERE A TIME, DOCTOR, WHEN THE PHYSICIAN SHOULD
19 TALK WITH THE REPRESENTATIVE ABOUT THAT PATIENT'S NEEDS AND
20 CONDITIONS?
21 A. I WOULD THINK THAT THEY WOULD PROBABLY BE IN
22 COMMUNICATION SOMEWHERE WHEN THE INTERVENTIONS NEEDED TO
23 CHANGE.
24 Q. SO WHEN IS IT, IN YOUR EXPERIENCE, THAT THE PHYSICIAN
25 INVOKES THE ADVANCE DIRECTIVE TO DELIVER PALLIATIVE CARE, AS
3068
1 IT'S BEEN CHARACTERIZED?
2 A. IN A GEROPSYCH UNIT?
3 Q. UH-HUH.
4 A. BECAUSE PALLIATIVE CARE IN A HOSPICE SETTING IS VERY
5 DIFFERENT THAN IN A GEROPSYCH UNIT. OBVIOUSLY, WE HAVE A
6 DIFFERENT SET OF -- OF POLICIES AND PROCEDURES AND SO ON.
7 I'M NOT SURE I KNOW WHAT THE STANDARD FOR COMMUNICATION WITH
8 A FAMILY WITH A GEROPSYCH PATIENT IS.
9 BUT IN GENERAL, FROM MY EXPERIENCE YOU WOULD TRY TO BE
10 IN COMMUNICATION WITH --
11 Q. YOU -- YOU WOULD TRY --
12 A. -- WITH A CHANGE IN THE PATIENT'S STATUS.
13 Q. OKAY.
14 A. SO THAT IF THERE WAS A CHANGE IN THE STATUS, WE'D WANT
15 TO KNOW -- YOU KNOW, LET -- LET THE FAMILY KNOW.
16 Q. SO YOU WOULD -- YOU WOULD WANT TO AT LEAST ADVISE, IN
17 YOUR -- YOUR CARE AND TREATMENT --
18 A. UH-HUH.
19 Q. -- THAT PATIENT'S FAMILY OR REPRESENTATIVE OF THE CHANGE
20 IN STATUS?
21 A. RIGHT.
22 Q. WOULD YOU SIT DOWN AND ADVISE THEM AS TO THE
23 ALTERNATIVES THAT ARE AVAILABLE TO THEM AT THAT TIME?
24 A. I DON'T KNOW WHERE YOU'RE GOING WITH THE QUESTION, AND
25 I'M TRYING TO FIGURE OUT WHAT YOU MEAN SO --
3069
1 Q. WELL, LET'S SPECIFICALLY REFER TO MARY CRANE.
2 A. YES, PLEASE.
3 Q. SHE'S -- ON JANUARY 3RD SHE TURNS TO THE WORSE.
4 A. ON JANUARY 3RD STOOL IS NOTED IN HER VAGINA AND A
5 CONSULTANT IS CALLED IN, RIGHT?
6 Q. I THINK IF YOU'LL REFER TO THE RECORD, I THINK THAT
7 OCCURRED ON JANUARY 1ST.
8 A. ALL RIGHT. AND THEN THE 3RD SHE STARTED HAVING SOME
9 PAIN. OKAY.
10 Q. THAT'S RIGHT. ACCORDING TO YOUR REVIEW OF THE
11 RECORDS --
12 A. RIGHT.
13 Q. -- IT WAS ON THE 3RD, AS I RECALL, THAT YOU FELT LIKE
14 SHE WAS STARTING TO PROGRESSIVELY GO DOWNHILL.
15 A. UH-HUH.
16 Q. OKAY. WHAT I WANT TO KNOW IS AT THAT TIME WITH MARY
17 CRANE WERE THERE ALTERNATIVES AVAILABLE FOR THE TREATMENT OF
18 THE SEPTICEMIA THAT YOU'D SEEN DEVELOPING THERE?
19 A. WELL, THE GYNECOLOGIST HAD SUGGESTED THAT SHE BE PUT ON
20 BROAD SPECTRUM ANTIBIOTICS, AND THEN THEY WERE TRYING TO
21 REACH THE INTERNIST ABOUT THAT.
22 Q. OKAY.
23 A. ON THE 5TH THE KEFLEX WAS STARTED, WHICH IS A BROAD
24 SPECTRUM ANTIBIOTIC.
25 Q. SO IT WAS TWO DAYS LATER THE --
3070
1 A. RIGHT.
2 Q. -- ON THE 5TH THAT THE INFECTIOUS DISEASE PROCESS IS
3 FIRST ADDRESSED; IS THAT CORRECT?
4 A. UH-HUH.
5 Q. OKAY.
6 A. THAT'S CORRECT. THERE WAS A --
7 Q. WHEN -- WHEN WAS IT IN RELATIONSHIP TO MARY CRANE'S
8 RECORDS THAT -- OR MAYBE -- MAYBE -- THIS IS THE QUESTION,
9 DOCTOR. DID YOU EVER FORM AN OPINION IN REVIEWING THOSE
10 RECORDS AS TO WHEN THE EVENTS WITH MARY CRANE WERE
11 IRREVERSIBLE?
12 A. I WOULD SAY PROBABLY BY THE 7TH -- ABOUT THE 7TH OF
13 JANUARY. IT'S UNLIKELY THOUGH THAT THIS PATIENT WOULD HAVE
14 HAD ANY DIFFERENT OUTCOME EVEN IF THE ANTIBIOTICS HAD BEEN
15 STARTED EARLIER. WE JUST WOULDN'T HAVE KNOWN THEY WEREN'T
16 REVERSIBLE UNTIL HER BLOOD PRESSURE FELL.
17 Q. THE FACT OF THE MATTER IS THEY WERE NOT STARTED UNTIL
18 THE 5TH; IS THAT CORRECT?
19 A. RIGHT. YOU KNOW, SHE HAD HAD AN EPISODE OF CIPRO, WHICH
20 IS ANOTHER BROAD SPECTRUM ANTIBIOTIC FOR HER URINARY TRACT
21 INFECTION, DURING THIS SAME HOSPITAL STAY. THAT SHOULD HAVE
22 BLUNTED THIS FROM BECOMING A SEPSIS.
23 Q. OKAY.
24 A. THESE ARE THE KINDS OF THINGS THAT WHEN YOU HAVE ELDERLY
25 PATIENTS AND MULTIPLE THINGS WRONG WITH THEN, SOMETIMES YOU
3071
1 DON'T RECOGNIZE YOU'VE GONE OVER THE HILL UNTIL YOU'RE
2 SLIDING DOWN THE HILL ON THE OTHER SIDE.
3 Q. OKAY. NOW, YOU'VE JUST REVIEWED THE -- THE MEDICAL
4 RECORDS. YOU DIDN'T HAVE AN OPPORTUNITY TO LOOK AT THIS
5 PATIENT, DID YOU?
6 A. NO, I DID NOT.
7 Q. SPECIFICALLY REFERRING TO MARY CRANE. I ASSUME THEN
8 THAT HAD YOU HAD THAT OPPORTUNITY, WOULD YOU -- WOULD YOU
9 HAVE BEEN ABLE TO BETTER EVALUATE HER MEDICAL CONDITION
10 SITUATION?
11 A. IT'S ALWAYS EASIER TO EVALUATE A MEDICAL CONDITION WHEN
12 YOU'RE LOOKING AT A PATIENT.
13 Q. OKAY.
14 A. I THINK WE'VE ALL GOT THE SAME HANDICAP WITH THIS
15 RECORD.
16 Q. GOING BACK TO -- TO A QUESTION I HAD FOR YOU ON THESE
17 MEDICAL DIRECTIVES, WE HAVE A VARIETY OF DIFFERENT
18 DIRECTIVES. ARE THERE ANY DIRECTIVES THAT TAKE PRECEDENT
19 OVER OTHER DIRECTIVES?
20 A. I'M NOT FAMILIAR WITH THE UTAH STATE LAWS REGARDING
21 THAT, SIR, I'M SORRY.
22 Q. OKAY.
23 A. IT VARIES FROM STATE TO STATE WHICH ONE TAKES
24 PRECEDENCE.
25 Q. IN YOUR EXPERIENCE IN -- RELATIVE TO HOSPICE CARE, YOU
3072
1 ARE FAMILIAR WITH STATE LAWS FROM STATE TO STATE?
2 A. IN SAN DIEGO.
3 Q. OKAY.
4 A. I MEAN, I UNDERSTAND CALIFORNIA STATE LAW --
5 Q. ALL RIGHT.
6 A. -- WHICH IS THE ONLY STATE I PRACTICE IN.
7 Q. SO YOU WOULDN'T BE ABLE TO RENDER ANY KIND OF OPINION AS
8 TO WHETHER CERTAIN DIRECTIVES TAKE PRECEDENT OR NOT?
9 A. I KNOW THAT THE TRADITIONAL WAY OF LOOKING AT ADVANCE
10 DIRECTIVES IS THAT THE PATIENT'S WORD IS FIRST; AND THEN THE
11 ASSIGNED SURROGATE; THEN THE FAMILY, NEXT OF KIN; AND THEN
12 THE BEST YOU CAN DETERMINE ABOUT WHAT THE PATIENT WOULD HAVE
13 WISHED ARE THE ORDER IN WHICH DECISIONS ARE GENERALLY MADE
14 IN -- IN THE UNITED STATES. BUT I DO NOT KNOW UTAH LAW
15 SPECIFICALLY.
16 Q. SO WHEN -- WHEN WE TALK ABOUT THE PATIENT'S WORD IS
17 FIRST --
18 A. IF THE PATIENT HAS CAPACITY TO MAKE MEDICAL DECISIONS,
19 ONE SHOULD ALWAYS ASK THE PATIENT.
20 Q. OKAY. DO YOU ALWAYS ASK THE PATIENT EVEN IF THERE IS AN
21 ADVANCE DIRECTIVE ALREADY IN EFFECT?
22 A. YES.
23 Q. AND DO YOU ALWAYS ASK THE PATIENT'S REPRESENTATIVE, EVEN
24 IF THERE IS AN ADVANCE DIRECTIVE IN EFFECT?
25 A. BY PATIENT'S REPRESENTATIVE, ARE YOU TALKING ABOUT THE
3073
1 ASSIGNED SURROGATE IN THE DIRECTIVE?
2 Q. THE SURROGATE, YES. WOULD YOU ASK --
3 A. THEY'RE ONLY THE SURROGATE BY VIRTUE OF THE ADVANCE
4 DIRECTIVE.
5 Q. RIGHT.
6 A. SO YES, THAT'S WHO WE WOULD TALK TO.
7 Q. BY THE POWER OF ATTORNEY. OKAY.
8 A. BUT ONLY IF THE PATIENT LACKED CAPACITY TO MAKE THE
9 MEDICAL DECISION IN QUESTION.
10 Q. OKAY. SO THE PHYSICIAN, AS I UNDERSTAND IT, THEN
11 WOULD -- WOULD -- IN THE EVENT OF AN ACUTE EVENT IN THE
12 HOSPITAL SETTING, AS WE HAVE HERE, WOULD THEN GO TO THE
13 SURROGATE OR TO THE PATIENT, ADVISE THEM IF -- IF -- OF THE
14 SITUATION AS FAR AS THE ACUTE EVENT GOES --
15 A. UH-HUH.
16 Q. -- BEFORE THEY INVOKE THE ADVANCE DIRECTIVE?
17 A. THAT IS INVOKING THE ADVANCE DIRECTIVE.
18 Q. THAT IS INVOKING THE ADVANCE DIRECTIVE. AND WHAT DO
19 THEY ADVISE THEM OF? JUST THE CONDITION OF THE PATIENT?
20 A. AND THE RELATIONSHIP TO THE WRITTEN INSTRUCTIONS, IF
21 THERE ARE ANY, OR THE OPPORTUNITIES OR NEEDS FOR CARE.
22 Q. OKAY.
23 A. AND IN THE INTERDISCIPLINARY TEAM, IT CAN BE A LOT OF
24 PEOPLE BESIDES THE PHYSICIAN. YOU KNOW, THIS PATIENT THERE
25 WERE CONVERSATIONS WITH OTHER TEAM MEMBERS PRIOR TO THE 7TH.
3074
1 Q. SO THEN THE PHYSICIAN MEETS WITH THE INTERDISCIPLINARY
2 TEAM TO GO OVER THIS?
3 A. THEY TALK. YEAH.
4 Q. I NEED TO ASK YOU SOME QUESTIONS AS IT RELATES -- DO YOU
5 HAVE ANY EXPERTISE -- YOU'VE INDICATED YOU HAVE SOME
6 EXPERTISE IN PAIN MANAGEMENT. IS THAT -- IS THAT ACCURATE?
7 A. YES, SIR. MEDICAL PAIN MANAGEMENT. I DON'T DO
8 INTERVENTIONAL LIKE ANESTHESIA STUFF.
9 Q. MEDICAL PAIN MANAGEMENT?
10 A. YES, SIR.
11 Q. YOU DON'T HAVE ANY EXPERTISE IN --
12 A. I DON'T DO NERVE BLOCKS OR SURGERY.
13 Q. OH, OKAY.
14 A. WE CALL IT --
15 Q. WHAT TYPE OF PAIN MANAGEMENT DO YOU DO?
16 A. MEDICAL PAIN MANAGEMENT. TREATMENT WITH MEDICINE.
17 Q. ARE YOU FAMILIAR OR DO YOU HAVE ANY FAMILIARITY WITH
18 PSYCHOTROPIC MEDICATIONS?
19 A. SOME, AS IT HELPS WITH THE TERMINALLY ILL PATIENTS.
20 Q. ARE YOU FAMILIAR WITH THE LITERATURE AS IT RELATES TO
21 THE USE OR THE PHARMACOLOGY OF PSYCHOTROPIC AND PAIN
22 MEDICATIONS IN THE ELDERLY?
23 A. SOME OF IT.
24 Q. GENERALLY SPEAKING, IT'S TRUE, DOCTOR, THE ELDERLY
25 ARE -- ARE MORE SENSITIVE TO THE ADMINISTRATION OF THESE
3075
1 TYPES OF CENTRAL NERVOUS SYSTEM DEPRESSANTS, ARE THEY NOT?
2 A. USUALLY WE EXPECT THEM TO BE MORE SENSITIVE AND START
3 WITH SMALL DOSES AND THEN TITRATE AS WE NEED TO THE CHANGES
4 WE'RE TRYING TO PRODUCE IN THE PATIENT.
5 Q. OKAY.
6 A. SO WHILE THE STARTING DOSES ARE USUALLY SMALL, THEY MAY
7 NEED JUST AS MUCH AS ANYBODY ELSE TO GET THE EFFECT WE NEED.
8 Q. BUT YOU START WITH THEM SMALL TO SEE WHAT KIND OF EFFECT
9 YOU'RE GETTING?
10 A. RIGHT.
11 Q. AND THEN YOU WILL EITHER INCREASE IT OR DECREASE IT
12 DEPENDING ON THE EFFECT; IS THAT CORRECT?
13 A. THAT'S CORRECT.
14 Q. NOW, I'M GOING TO SHOW YOU WHAT'S BEEN MARKED AS STATE'S
15 EXHIBIT 31. I'M JUST GOING TO PUT IT UP HERE AND MAYBE I'LL
16 HAVE YOU STEP DOWN FOR JUST A SECOND, IF YOU WOULD, PLEASE,
17 OR LOOK AT THAT. THERE'S A NUMBER OF -- OF DIFFERENT TYPES
18 OF DRUGS WHICH ARE --
19 A. WHAT IS THE SOURCE OF THIS?
20 Q. THIS WAS A EXPERT FOR THE STATE WHO PROVIDE -- OR
21 PREPARED THIS PARTICULAR DOCUMENT.
22 A. WHAT WAS THE SOURCE OF HIS INFORMATION?
23 Q. AS I RECALL, HE TOOK IT FROM THE GERIATRIC DOSAGE
24 HANDBOOK, THAT WAS BACK IN 1995. I JUST WANTED YOU TO
25 FAMILIARIZE YOURSELF WITH THE CHART, IF YOU WOULD.
3076
1 A. UH-HUH.
2 Q. ARE YOU FAMILIAR WITH EACH OF THE DRUGS THAT ARE LISTED
3 ON THAT CHART?
4 A. YES, I AM.
5 Q. OKAY. AND CAN YOU TELL US IN LOOKING AT THE ADULT
6 STARTING DOSE WHICH, FOR THE RECORD, I THINK WAS TAKEN FROM
7 THE P.D.R., AND THE ELDERLY STARTING DOSE WHICH WAS TAKEN
8 FROM THE GERIATRIC HANDBOOK, WOULD THAT COMPORT WITH YOUR
9 OPINION AS TO THE DOSAGES -- THE STARTING DOSAGES THAT WOULD
10 BE ADMINISTERED TO ELDERLY PATIENTS?
11 A. SOME OF THEM I AGREE WITH. I DON'T AGREE WITH THE
12 MORPHINE DOSING. I THINK IT'S TOO LOW, IF A PATIENT HAS
13 SIGNIFICANT PAIN.
14 Q. OKAY.
15 A. BUT I WOULD MONITOR A PATIENT ON ANY OF THESE DRUGS FOR
16 EFFECT AND EFFICACY.
17 Q. LET ME SHOW YOU WHAT'S MARKED AS STATE'S EXHIBIT 30 --
18 AND, AGAIN, I WOULD REPRESENT THIS WAS PREPARED BY A
19 DR. FEHLAUER WHO TESTIFIED EARLIER IN THESE PROCEEDINGS --
20 WHICH REPRESENTS THE PHARMACOLOGY IN THE ELDERLY AND SPECIAL
21 CONSIDERATIONS IN THE ELDERLY. AND I DON'T -- TAKE YOUR
22 TIME AND REVIEW THAT, IF WOULD YOU, PLEASE.
23 A. UH-HUH. OKAY.
24 Q. CAN YOU TELL US WHETHER OR NOT YOU AGREE OR DISAGREE
25 WITH THE REFERENCES ON THE CHART?
3077
1 A. THEY SEEM TO BE REASONABLY CONSISTENT WITH THE
2 EXPERIENCE WE HAVE.
3 Q. SO I TAKE IT YOUR -- YOU WOULD AGREE THAT FOR MOST OF
4 THESE DRUGS THAT WERE LISTED, THERE IS A -- A LONGER
5 DURATION EFFECT IN THE ELDERLY?
6 A. THERE MAY BE A LONGER DURATION EFFECT IN AN ELDERLY
7 PERSON.
8 Q. OKAY. AND IN RESPECT TO THAT "MAY BE," IS IT MY
9 UNDERSTANDING THAT COULD ONLY BE DETERMINED BY MONITORING OF
10 THE PATIENT?
11 A. THAT'S CORRECT.
12 Q. I SHOW YOU WHAT'S MARKED AS STATE'S EXHIBIT 37, WHICH IS
13 A CHART THAT WAS PREPARED BY DR. BRADFORD HARE IN CONNECTION
14 WITH HIS TESTIMONY IN THESE PROCEEDINGS WHICH TALKS ABOUT
15 CENTRAL NERVOUS SYSTEM DEPRESSANTS. NOW, I WOULD ASK YOU TO
16 TAKE A LOOK AT THAT CHART AND TELL ME IF YOU AGREE OR
17 DISAGREE WITH, FIRST OF ALL, THE IMMEDIATE EFFECTS THAT HE'S
18 INDICATED AS TO CENTRAL NERVOUS SYSTEM DEPRESSANTS.
19 A. AN OVERDOSE OF A CENTRAL NERVOUS SYSTEM DEPRESSANT CAN
20 PRODUCE SLEEPINESS OR COMA AND MAY DECREASE THE RESPIRATORY
21 RATE. I DON'T AGREE WITH THE REST OF THE CHART.
22 Q. YOU DON'T AGREE THAT IT WOULD DECREASE BLOOD PRESSURE?
23 A. NO.
24 Q. AND YOU DON'T AGREE THAT AN IMMEDIATE EFFECT COULD BE
25 DECREASED FOOD AND WATER INTAKE?
3078
1 A. NO. NOT DUE TO THE MEDICATION.
2 Q. NOW, WE TALKED -- YOU -- YOU WERE REFERENCING THAT
3 SPECIFICALLY AS TO AN OVERDOSE; IS THAT RIGHT?
4 A. OR TO A HIGH INITIAL DOSE IN AN OPIOID NAIVE PATIENT.
5 Q. OKAY. AS TO THE LONG-TERM EFFECTS THAT ARE LISTED
6 THERE, CAN YOU TELL -- COMMENT ON WHETHER OR NOT YOU AGREE
7 OR DISAGREE WITH THAT?
8 A. IT'S WELL KNOWN AMONG ALL THE PEOPLE WHO DO PAIN
9 MANAGEMENT WITH OPIOIDS THAT THE OPIOID AS A CLASS HAVE NO
10 ORGAN TOXICITY. THEY DO NOT DIRECTLY IMPAIR THE FUNCTION OF
11 ANY ORGAN IN THE BODY, EVER. NOW --
12 Q. SO YOUR TESTIMONY IS -- IS THERE -- THERE WOULD BE NO
13 ORGAN DAMAGE OR REDUCED ORGAN --
14 A. THAT'S CORRECT. THERE IS NO ORGAN DAMAGE FROM OPIOIDS.
15 Q. I SEE. OR REDUCED ORGAN FUNCTION?
16 A. THAT'S CORRECT.
17 Q. OKAY. AND WOULD THERE BE DEHYDRATION, OR COULD THERE BE
18 A LONG-TERM EFFECT WITH THE USE OF CENTRAL NERVOUS SYSTEM --
19 A. I'VE HAD PATIENTS ON OPIOID DRUGS FOR YEARS WHO ARE
20 GOING TO WORK, EATING, FUNCTIONING, LIVING NORMAL LIVES
21 BECAUSE THEY HAVE CHRONIC PAIN SYNDROMES. PATIENTS WHO ARE
22 IN PAIN, WHEN THEY RECEIVE AN OPIOID THE PAIN ANTAGONIZES
23 THE SEDATIVE EFFECTS OF THE OPIOID. WITHOUT SEDATION, NONE
24 OF THE DECREASED INTAKE OR ANYTHING WOULD OCCUR. AND THERE
25 IS NO DIRECT ORGAN TOXICITY FROM ANY OPIOID.
3079
1 Q. LET ME ASK YOU THIS, DOCTOR. ASSUMING THAT THERE IS NO
2 PAIN, IS THERE ANY REASON TO BE ADMINISTERING EITHER
3 MORPHINE OR A CENTRAL NERVOUS SYSTEM DEPRESSANT?
4 A. THERE MAY BE A NUMBER OF REASONS WHY OPIOIDS WOULD BE
5 USED WITHOUT DIRECT EVIDENCE OF PAIN. PATIENTS WHO HAVE A
6 PRESUMPTIVE ILLNESS THAT WOULD CAUSE PAIN MIGHT CAUSE YOU TO
7 TRY DRUGS TO SEE IF THEY -- THEY WOULD BE MORE COMFORTABLE.
8 THE OTHER MAJOR USE OF OPIOIDS IN MY BUSINESS, WHICH IS
9 A LITTLE DIFFERENT THAN THE CASES HERE, IS THAT IT HELPS
10 WITH SHORTNESS OF BREATH OR DYSPNEA AT THE END OF LIFE. IT
11 MAKES PEOPLE FEEL LESS LIKE THEY'RE SUFFOCATING.
12 IT ALSO HAS BEEN TRADITIONALLY USED -- MORPHINE HAS
13 BEEN TRADITIONALLY USED IN END-OF-LIFE CARE SINCE THE
14 BEGINNING OF TIME THAT IT WAS CREATED TO HELP PEOPLE WITH
15 SEDATION AND FEELING CALMER AT THE END OF LIFE.
16 IT'S VERY IMPORTANT THAT WE HAVE TO MAKE A DISTINCTION
17 BETWEEN THE END OF LIFE AND HOSPICE BECAUSE HOSPICE IS KIND
18 OF A REAL SPECIALIZED -- WE'RE FINE TUNING THE PROCESS. BUT
19 GENERALLY END-OF-LIFE CARE, IF YOU LOOK AT VERY OLD MEDICAL
20 LITERATURE, THEY GIVE MORPHINE AT THE END OF LIFE FOR THAT
21 UNEASINESS, SHORTNESS OF BREATH, MOANING, SUSPECTED PAIN, SO
22 ON.
23 Q. SO IN -- IN TERMS OF YOUR PARTICULAR SPECIALTY, AS I
24 UNDERSTAND IT --
25 A. UH-HUH.
3080
1 Q. -- IT'S GIVEN FOR THAT PURPOSE?
2 A. AND IT HAS BEEN GIVEN FOR THAT IN MEDICINE FOREVER.
3 YES.
4 Q. OKAY. IN -- IN TERMS OF THE OTHER MEDICAL SPECIALTIES,
5 WOULD YOU AGREE WITH THE STATEMENT THAT IT'S USED FOR
6 CHRONIC OR SEVERE PAIN?
7 A. OR ACUTE PAIN.
8 Q. OR ACUTE PAIN.
9 A. YES.
10 Q. OKAY. AND THAT'S A PROPER USE IN THAT CONTEXT?
11 A. THAT'S ONE OF THE PROPER USES IN THAT CONTEXT, YES.
12 Q. OKAY. ALL RIGHT. WE DIDN'T TALK SPECIFICALLY ABOUT
13 THIS. I'M JUST GOING TO PUT IT UP FOR A SECOND BECAUSE I
14 THINK ESSENTIALLY YOU'VE ANSWERED THE QUESTIONS AS IT
15 RELATED TO THE OTHER CHART.
16 THIS IS -- IS STATE'S EXHIBIT NUMBER 40. CAN YOU TELL
17 US, AS IT RELATES TO THE IMMEDIATE EFFECTS -- I THINK THE
18 ONLY -- WELL, I'LL ASK YOU THE QUESTION. AS IT RELATES TO
19 THE IMMEDIATE EFFECTS, DO YOU AGREE OR DISAGREE WITH THAT
20 PARTICULAR CHART?
21 A. THE PATIENT SHOULD HAVE PAIN RELIEF WITH AN ADEQUATE
22 DOSE OF MORPHINE, BUT IT MAY BE INADEQUATE TO RELIEVE PAIN
23 IF YOU START WITH TOO LOW A DOSE.
24 SLEEPINESS OR SEDATION CAN OCCUR FROM A DOSE THAT'S
25 HIGHER THAN NEEDED FOR THE PAIN AT HAND. A DECREASED
3081
1 BREATHING RATE MAY OCCUR IN THOSE CASES AS WELL.
2 THERE IS NO LOSS OF THE COUGH REFLEX DUE TO THE
3 MORPHINE ITSELF. THERE MAY BE A LOSS OF COUGH REFLEX IN
4 DEEP COMA, BUT THAT SHOULDN'T BE HAPPENING WHEN WE'RE
5 DEALING WITH PAIN BECAUSE THE PAIN ANTAGONIZES THE OPIOID.
6 I DO NOT AGREE WITH LOW BLOOD PRESSURE, DECREASED FOOD
7 AND WATER INTAKE, AND I DO NOT AGREE WITH THE LONG-TERM SIDE
8 EFFECTS LIST AT ALL.
9 Q. ANY OF THOSE LONG-TERM SIDE EFFECTS?
10 A. NO, I DON'T.
11 Q. OKAY. HAVE YOU REVIEWED ANY STUDIES RELATIVE TO THE USE
12 OF CENTRAL NERVOUS SYSTEM DEPRESSANTS PRIOR TO -- TO COMING
13 TO THESE PROCEEDINGS?
14 A. IN WHAT SENSE, SIR?
15 Q. IN -- IN THE -- IN THE SENSE -- DID YOU REVIEW ANY
16 STUDIES AS IT RELATES TO CENTRAL NERVOUS SYSTEM DEPRESSANTS
17 IN PREPARATION FOR YOUR TESTIMONY HERE IN COURT?
18 A. NO, SIR.
19 Q. AM I CORRECT THEN IN -- IN SUMMARIZING THAT YOUR
20 TESTIMONY AS IT RELATES TO CENTRAL NERVOUS SYSTEM
21 DEPRESSANTS IS BASED PRIMARILY ON YOUR EXPERIENCE?
22 A. THAT'S CORRECT, SIR.
23 Q. OKAY.
24 A. AND -- AND GENERALLY MY READING, BUT NOT ANY READING
25 SPECIFICALLY FOR THIS TRIAL.
3082
1 Q. OKAY. BEFORE WE GET OFF THAT TOPIC, LET'S TALK A LITTLE
2 BIT ABOUT THE TESTIMONY YOU GAVE AS IT RELATES TO
3 CHEYNE-STOKES BREATHING.
4 A. UH-HUH.
5 Q. I THINK YOUR TESTIMONY WAS TO THE EFFECT THAT
6 CHEYNE-STOKES BREATHING WAS NOT INDICATIVE OF ANY
7 INTOXICATION FROM THE EFFECTS OF MORPHINE.
8 A. THAT'S CORRECT, SIR.
9 Q. ARE YOU AWARE OF ANY STUDIES WHICH WOULD CONFIRM THAT
10 PARTICULAR OPINION, DOCTOR?
11 A. NO, I'M NOT, SIR.
12 Q. AGAIN, IS THAT JUST BASED UPON YOUR EXPERIENCE?
13 A. I THINK IT'S BASED ON MINE AND A NUMBER OF OTHER
14 PHYSICIANS' EXPERIENCE. WHEN WE SEE MORPHINE DOING ANYTHING
15 TO THE RESPIRATORY RATE, IT'S TO SLOW IT DOWN.
16 Q. NOW, ARE THERE ANY OTHER THINGS, OTHER THAN THE SAY, AS
17 YOU DESCRIBED IT, THE DYING PROCESS, THAT WOULD CAUSE
18 CHEYNE-STOKES RESPIRATION?
19 A. I THINK I ALSO REFERRED TO ACUTE HEAD INJURIES AS
20 CAUSING CHEYNE-STOKES RESPIRATIONS IN THE -- IN THE COMA
21 PROCESS FOR THOSE PATIENTS.
22 I THINK I'VE ALSO SEEN CHEYNE-STOKES RESPIRATIONS AS A
23 RESULT OF SOME PRIMARY DEGENERATIVE BRAIN DISORDERS WHERE
24 THE PATIENT IS ACTUALLY DYING FROM THE BRAIN DEGENERATION,
25 NEUROGENIC DEGENERATIVE DISEASES.
3083
1 Q. OKAY. AS I UNDERSTAND IT -- AND CORRECT ME IF I'M
2 WRONG -- THE -- THE AREA OF THE BRAIN THAT CONTROLS YOUR
3 BREATHING IS THE LOWER PART OF THE -- OR THE --
4 A. PRIMITIVE REFLEX.
5 Q. -- BACK PART OF THE BRAIN?
6 A. RIGHT.
7 Q. AND IS IT YOUR TESTIMONY THAT THE MORPHINE WOULD NOT
8 IMPACT THAT AREA OR WHAT?
9 A. IT MAY IMPACT IT, BUT IT DOESN'T PRODUCE THAT PATTERN OF
10 BREATHING.
11 Q. I SEE. WELL, IS THERE ANY LITERATURE OR IS THERE
12 ANYTHING IN YOUR EXPERIENCE WHERE RENAL FAILURE WOULD CREATE
13 CHEYNE-STOKES RESPIRATION?
14 A. PATIENTS WHO ARE DYING FROM RENAL FAILURE MAY HAVE
15 CHEYNE-STOKES RESPIRATION, BUT IT'S THE DYING BRAIN.
16 Q. OKAY. IT'S PRIMARILY THE BRAIN THAT'S DOING THAT.
17 A. RIGHT.
18 Q. HOW ABOUT EXTREME HYPOXIA?
19 A. AGAIN, IT'S THE DYING BRAIN.
20 Q. OKAY. NOW, CAN THE EXTREME HYPOXIA -- CAN HYPOXIA BE
21 INDUCED AS A RESULT OF THE TOXICITY LEVELS OF MORPHINE?
22 A. ARE YOU REFERRING TO AN OVERDOSE OF MORPHINE PRODUCING
23 RESPIRATORY DEPRESSION?
24 Q. I AM.
25 A. THEN THAT IS POSSIBLE TO GET HYPOXIA. THE RESPIRATORY
3084
1 RATE WOULD HAVE TO BE AROUND 2 TO 4. AND THEN THE PATIENT
2 WOULD BE BREATHING TOO SLOWLY TO HAVE CHEYNE-STOKES
3 RESPIRATION.
4 Q. I SEE. SO YOUR TESTIMONY THEN IS EXTREME HYPOXIA WOULD
5 NOT DEMONSTRATE OR BE DEMONSTRABLE IN -- IN CHEYNE-STOKES
6 RESPIRATIONS?
7 A. IT CAN CAUSE IT AS A PART OF A DYING PROCESS IF THE
8 REASON FOR THE HYPOXIA IS NOT ALSO SLOWING THE BREATHING
9 DOWN. PEOPLE GET HYPOXIC WHEN THEY HAVE BAD PULMONARY
10 EMBOLI AND THEY CAN CHEYNE-STOKE.
11 Q. OKAY.
12 A. BUT IF YOU'RE BREATHING TOO SLOW, YOU CAN'T
13 CHEYNE-STOKE.
14 Q. OKAY. IS THERE LITERATURE -- IN YOUR EXPERIENCE, CAN
15 EXTREME DEHYDRATION CAUSE CHEYNE-STOKES RESPIRATIONS?
16 A. THAT'S GOING TO BE LIKE THE THIRD OR FOURTH CAUSE DOWN
17 THE DEATH CERTIFICATE IF IT IS BECAUSE YOU'RE GOING TO HAVE
18 DEHYDRATION PRODUCING PERHAPS RENAL FAILURE AND HYPOTENSION
19 AND THEN, YOU KNOW, SOMETHING ELSE IS CAUSING A METABOLIC
20 ABNORMALITY THAT CAUSES THE BRAIN TO DIE WHICH CAUSES THE --
21 YOU KNOW. IT'S -- IT'S STARTING TO SOUND LIKE I SWALLOWED A
22 FLY.
23 MR. WILSON: YOUR HONOR, I STILL HAVE A FEW MORE
24 QUESTIONS TO GO. I DON'T KNOW WHETHER THE COURT WANTS TO --
25 THE COURT: HOW LONG DO YOU THINK YOU'LL BE?
3085
1 MR. WILSON: OH, PROBABLY 10 MORE MINUTES, YOUR
2 HONOR.
3 THE COURT: HOW MUCH TIME WOULD YOU BE, MR. STIRBA?
4 MR. STIRBA: I MIGHT BE 5 OR 10, YOUR HONOR.
5 THE COURT: CAN WE GO ANOTHER 15 OR 20 MINUTES AND
6 FINISH WITH THIS WITNESS? WILL THAT -- WHY DON'T WE JUST
7 TRY AND DO THAT.
8 MR. WILSON: OKAY.
9 THE COURT: LET'S FINISH WITH THIS WITNESS BEFORE
10 WE TAKE A LUNCH BREAK.
11 Q. (BY MR. WILSON) JUST A COUPLE OF QUESTIONS. GOING
12 BACK TO THE DELIRIUM, I DID LOCATE THAT CHART. THIS IS
13 MARKED AS STATE'S EXHIBIT 29. I'D REPRESENT, FOR THE
14 RECORD, THIS IS AN EXHIBIT THAT WAS PREPARED BY DR. FEHLAUER
15 WHO PREVIOUSLY TESTIFIED ON BEHALF OF THE STATE COMPARING
16 DEMENTIA VERSUS DELIRIUM. WOULD YOU TAKE A LOOK AT THAT
17 CHART, DOCTOR?
18 A. WELL, THERE'S SOME INTERESTING COMMENTS ON THERE.
19 Q. WELL, I GUESS MY FIRST QUESTION WOULD BE HAVING REVIEWED
20 THAT, AS TO THE DEMENTIA, THE PARTICULAR FINDINGS I GUESS
21 YOU WOULD -- OR SYMPTOMS OR SIGNS YOU WOULD HAVE RELATED TO
22 THE FINDINGS ON THE OPPOSITE SIDE, WOULD YOUR TESTIMONY --
23 OR WOULD YOU AGREE OR DISAGREE WITH THAT PARTICULAR --
24 A. WELL, THE -- THE THINGS THAT THEY'RE SAYING IN DEMENTIA
25 THAT ARE CORRECT ARE THAT IT'S INSIDIOUS IN ONSET AND IT'S
3086
1 SLOWLY PROGRESSIVE. I DON'T THINK YOU CAN CALL DEMENTIA
2 STABLE SINCE IT GETS WORSE OVER TIME.
3 A NORMAL ATTENTION SPAN IS TRUE FOR EARLIER DEMENTIA,
4 BUT IT GOES AWAY AS THE DEMENTIA INCREASES. PSYCHOMOTOR
5 ACTIVITY, SAYS SOMETIMES RETARDED OR AGITATED. THAT MAY BE
6 TRUE; IT MAY BE NORMAL. HALLUCINATIONS ARE FREQUENTLY
7 PRESENT IN LEWY BODY DEMENTIA. IT'S A FAIRLY NEWLY
8 DESCRIBED ENTITY THAT MAY NOT BE FAMILIAR TO YOUR WITNESS.
9 SPEECH IS VERY OFTEN AFFECTED AS WE HAVE ATTESTED TO
10 THAT THEY LOSE THE ABILITY TO SPEAK AS THEY GET CLOSER TO
11 DEATH. SLEEPING PATTERNS ARE SERIOUSLY AFFECTED IN DEMENTIA
12 AND ARE ONE OF THE MAJOR REASONS WHY FAMILIES CAN NO LONGER
13 CARE FOR PATIENTS AT HOME. THEY HAVE A DAY/NIGHT REVERSAL
14 AND TEND TO BE UP ALL NIGHT LONG.
15 AND MOOD DISTURBANCES ARE OFTEN NOT MANAGEABLE OR
16 STABLE, AND THAT'S ONE OF THE REASONS YOU HAVE GEROPSYCH
17 UNITS.
18 Q. OKAY. AS TO THE SIGNS OR SYMPTOMS LISTED UNDER
19 DELIRIUM, WOULD YOU AGREE OR DISAGREE WITH THAT?
20 A. I AGREE THAT THEY TEND TO BE ACUTE IN ONSET. THEY MAY
21 BE WIDELY FLUCTUATING IN SEVERITY. THERE MAY OR MAY NOT BE
22 IMPAIRED ATTENTION OR LEVEL OF CONSCIOUSNESS. PSYCHOMOTOR
23 ACTIVITY MAY OR MAY NOT BE IMPAIRED. HALLUCINATIONS MAY OR
24 MAY NOT BE PRESENT. SPEECH MAY OR MAY NOT BE DISORGANIZED.
25 IT MAY BE VERY ORGANIZED AND HAVE NOTHING TO DO WITH
3087
1 RAMBLING, BUT ACTUALLY BE PART OF THE DELIRIOUS PROCESS
2 ITSELF.
3 SLEEP PATTERNS MAY BE DISTURBED, YES. THEY MAY BE
4 INCREASING THEIR SLEEPING. AND MOOD DISTURBANCES -- IT'S
5 VERY DIFFICULT TO TALK ABOUT MOOD DISTURBANCES IN DELIRIUM
6 BECAUSE IT'S HARD TO EVEN INTERPRET A MOOD DISTURBANCE IN A
7 DELIRIOUS PATIENT. THE BEHAVIOR -- THE APPARENT BEHAVIOR IS
8 USUALLY ACUTELY CHANGED IN THE COURSE OF HOURS.
9 Q. OKAY. THANK YOU, DOCTOR, ON THAT.
10 JUST A COUPLE OF QUESTIONS THAT RELATES TO THE
11 PATIENTS. WE PREVIOUSLY WENT OVER MARY CRANE. I WOULD LIKE
12 YOU TO GO OVER WITH ME EACH OF THESE PATIENTS, OTHER THAN
13 MARY CRANE, AND I WANT YOU TO DEFINE FOR ME, IF YOU WILL,
14 THE DATE -- WELL, FIRST OF ALL, LET'S -- YEAH, LET'S TALK
15 ABOUT LYDIA SMITH. I WANT YOU TO DEFINE FOR ME, IF YOU
16 WILL, THE DATE THAT YOU FEEL REPRESENTS THE -- THE ONSET OF
17 THE ACUTE PROBLEM WHICH RESULTED IN THE DYING PROCESS.
18 A. THIS PATIENT WAS SERIOUSLY IMPAIRED AT THE TIME OF HER
19 ADMISSION. HER FUNCTIONAL ASSESSMENT SCALE WAS A 7(B). SHE
20 HAD HAD THE UNINTENTIONAL WEIGHT LOSS. HER PERFORMANCE ON
21 ANOTHER SCORE WAS ABOUT 30 PERCENT OF NORMAL IN TERMS OF
22 WHAT SHE COULD DO FOR HERSELF. SHE WAS UNABLE TO SPEAK.
23 SHE REQUIRED ASSISTANCE WITH ALL ACTIVITIES OF DAILY LIVING.
24 SO SHE WOULD HAVE UNDER THOSE CRITERIA QUALIFIED AS
25 TERMINALLY ILL FOR HOSPICE CARE HAD SHE BEEN REFERRED TO
3088
1 HOSPICE CARE.
2 Q. I APPRECIATE THAT, DOCTOR. I GUESS I WANTED YOU TO
3 FOCUS -- YOU PREVIOUSLY TESTIFIED THAT ALL FIVE OF THESE
4 PATIENTS WERE QUALIFIED, I THINK, FOR HOSPICE CARE. I JUST
5 WANTED TO FOCUS YOUR ATTENTION AS TO THIS PARTICULAR PATIENT
6 AS TO WHEN YOU THINK SHE BECAME -- OR WHEN THERE WAS
7 EVIDENCE TO SUGGEST SHE WAS IN THE DYING PROCESS.
8 A. WELL, I THINK, YOU KNOW, WHEN YOU SEE THAT IN THE EARLY
9 PART OF JANUARY SHE'S DEMONSTRATING INCREASING SOMNOLENCE
10 AND REDUCED RESPONSIVENESS, THEN BY THE 7TH SHE WAS
11 POSTURING AND HAD DECREASED URINE OUTPUT, IT WOULD BE
12 REASONABLE TO ASSUME THAT SHE HAD AN ACUTE PROBLEM GOING ON
13 AT THAT POINT THAT COULD, IN FACT, RESULT IN HER DEATH, AND
14 IN FACT THE GOALS OF CARE WERE DISCUSSED WITH HER FAMILY AT
15 THAT TIME.
16 IF YOU LOOK AT LYDIA SMITH FROM THE BEGINNING, THIS
17 PATIENT HAS HAD --
18 Q. CAN YOU TELL ME WHEN IT WAS DISCUSSED WITH HER FAMILY?
19 WHAT DATE IT WAS DISCUSSED?
20 A. WELL, YEAH. I CAN FIND IT. THIS LADY HAD HAD A NUMBER
21 OF EPISODES WHERE SHE'D ALMOST DIED PRIOR TO HER ADMISSION
22 TO THIS FACILITY.
23 Q. I APPRECIATE THAT, DOCTOR.
24 A. AND HAD HAD A NUMBER OF TIMES WHERE HER FAMILY HAD HAD
25 DISCUSSIONS ABOUT ADVANCE DIRECTIVES AND GOALS OF CARE.
3089
1 SO --
2 Q. THE -- THE QUESTION I THINK IS, IS DID YOU FORM AN
3 OPINION -- MAYBE I CAN PHRASE IT THIS WAY. DID YOU FORM AN
4 OPINION AS TO A DATE THAT IN HER CARE AT THE GEROPSYCH UNIT
5 THAT YOU FELT LIKE SHE HAD BEGUN THE DYING PROCESS?
6 A. I DON'T EVER FORM THAT OPINION EXCEPT IN RETROSPECT.
7 IT'S PRETTY HARD TO PIN DOWN TO SAY WELL, TODAY I KNOW
8 YOU'RE GOING TO DIE.
9 Q. WELL --
10 A. OR I KNOW YOU'RE GOING TO DIE IN THE NEAR FUTURE.
11 Q. MAYBE IT'S NOT A FAIR QUESTION IN THAT REGARD.
12 A. NO.
13 Q. CAN YOU TELL ME WHEN YOU NOTE THAT SHE STARTS TO
14 DETERIORATE?
15 A. WAS WHEN SHE WAS BEGINNING TO BE MORE SOMNOLENT AND LESS
16 RESPONSIVE. THAT WAS ABOUT --
17 Q. WOULD THAT BE ON THE 5TH?
18 A. BETWEEN THE 5TH AND 7TH, YES.
19 Q. OKAY.
20 A. THERE'S A NOTE OF A DISCUSSION WITH THE DAUGHTER -- WITH
21 TWO SONS AND A DAUGHTER ON 1/7/96, A PHYSICIAN NOTE.
22 Q. YOU DEFINED THAT AS A DAUGHTER?
23 A. TWO SONS AND DAUGHTER. FAMILY DISCUSSION. TWO SONS AND
24 A DAUGHTER. THEY DON'T WANT HER LIFE PROLONGED, BUT ARE
25 READY TO LET HER GO.
3090
1 Q. AND YOU INDICATE THAT SHE WAS -- IT WAS THE DAUGHTER
2 THAT WAS DECLINING ANY FORM OF --
3 A. THERE WERE TWO SONS AND A DAUGHTER IN THAT DISCUSSION.
4 Q. OKAY. THAT WAS ON THE 7TH, RIGHT?
5 A. YES.
6 Q. AND SHE DIED ON THE 8TH?
7 A. UH-HUH.
8 Q. OKAY. DID YOU REVIEW THE MEDICATIONS THAT WERE BEING
9 PROVIDED TO LYDIA SMITH, OTHER THAN THE MORPHINE?
10 A. I LOOKED AT THEM.
11 Q. AND CAN YOU -- ARE YOU -- I HAD PREVIOUSLY ASKED YOU IF
12 YOU'D HAD ANY EXPERIENCE IN THE ADMINISTRATION, I THINK, OF
13 PSYCHOTROPIC DRUGS?
14 A. WE ADMINISTER SOME PSYCHOTROPIC DRUGS --
15 Q. I SEE.
16 A. -- IN PALLIATIVE CARE.
17 Q. IS THAT ON A REGULAR BASIS, DOCTOR?
18 A. MAYBE.
19 Q. DO YOU MONITOR PATIENTS WHO'VE BEEN ADMINISTERED
20 PSYCHOTROPIC DRUGS?
21 A. YES.
22 Q. AND ARE YOU AWARE OF THE SIDE EFFECTS OF THOSE
23 PARTICULAR DRUGS?
24 A. SOME OF THEM. SOME OF THE SIDE EFFECTS I AM.
25 Q. OKAY. CAN YOU TELL US WHAT SOME OF THOSE DRUGS ARE THAT
3091
1 YOU'RE FAMILIAR WITH?
2 A. WHY DON'T YOU ASK ME ABOUT A DRUG AND LET ME TELL YOU
3 WHAT I KNOW ABOUT IT.
4 Q. TRAZODONE.
5 A. TRAZODONE IS USED FOR DEPRESSION IN THE PSYCHO --
6 PSYCHIATRIC WORLD. WE RARELY USE IT IN TERMINALLY ILL
7 PATIENTS, SO I DON'T MONITOR ITS SIDE EFFECTS PERSONALLY
8 VERY OFTEN.
9 Q. HOW ABOUT HALDOL?
10 A. HALDOL WE USE FREQUENTLY FOR ACUTE BRAIN SYNDROME, WHICH
11 IS USUALLY DUE TO METASTATIC DISEASE IN THE BRAIN OR ACUTE
12 METABOLIC DISTURBANCES WHEN THERE'S COMBATIVE OR ERRATIC
13 BEHAVIOR.
14 WE USE DOSES ANYWHERE FROM .5 MILLIGRAMS P.O. OR I.M.
15 TO 5 MILLIGRAMS. IT HAS A WIDE RANGE. WE TITRATE UP
16 RAPIDLY TO EFFECT. AND THE ONE THING THAT WE'RE LOOKING FOR
17 IS EXTRA-PYRAMIDAL SIDE EFFECTS --
18 Q. OKAY.
19 A. -- WHERE THE PATIENTS GETS WHAT LOOKS LIKE PARKINSON'S
20 DISEASE FROM THE DRUG.
21 Q. SO IS HALDOL, ATIVAN -- OR, EXCUSE ME, ATIVAN.
22 A. WE USE A LOT OF ATIVAN.
23 Q. OKAY. IS HALDOL, TRAZODONE, AND ATIVAN, ARE THEY ALL
24 CENTRAL NERVOUS SYSTEM DEPRESSANTS? DO THEY HAVE SIDE
25 EFFECTS?
3092
1 A. THEY'RE ALL PSYCHOTROPIC DRUGS WHICH MEANS THAT THEY
2 HAVE THEIR PRIMARY ACTION IN THE CENTRAL NERVOUS SYSTEM.
3 THEY'RE NOT ALWAYS DEPRESSANT.
4 Q. OKAY.
5 A. SOME OF THE PEOPLE GET AGITATED FROM THEM.
6 Q. WOULD ONE OF THOSE SIDE EFFECTS BE LETHARGY AND
7 SOMNOLENCE?
8 A. IF THEY WERE GIVEN IN VERY, VERY HIGH DOSES AND NOT
9 TITRATED AND MONITORED. YOU WOULD THINK IN A GEROPSYCH
10 HOSPITAL THAT THAT WOULD BE THEIR PARTICULAR AREA OF
11 EXPERTISE. ALL THE STAFF WOULD BE ABLE TO MONITOR THOSE
12 SIDE EFFECTS.
13 Q. IN RESPECT TO JUDITH LARSEN, IN YOUR REPORT I NOTE THAT
14 YOU INDICATE THAT SHE MADE A -- IF YOU COULD REFER TO YOUR
15 REPORT --
16 A. I AM.
17 Q. -- I WOULD APPRECIATE IT.
18 A. THAT'S WHERE THE PHYSICIAN HAD NOTED HER MIRACULOUS
19 RECOVERY ON THE 11TH.
20 Q. OKAY. YOU ALSO REFERENCE THAT ON THE DATE OF THE 11TH
21 THAT MORPHINE WAS GIVEN, ADMINISTERED ON THAT PARTICULAR
22 DATE AT 1830 HOURS.
23 A. YES, AND THAT WAS AN ERROR IN THIS REPORT. WHEN I
24 REVIEWED THE CHART THE MORPHINE WAS ORDERED ON THE 11TH AS A
25 SINGLE DOSE, BUT I MISREAD THE MAR SHEETS DATEWISE AND IT
3093
1 WAS NOT GIVEN THAT DAY.
2 Q. OKAY.
3 A. THERE WAS ANOTHER DOSE GIVEN ON ANOTHER TIME AND I WAS
4 MISREADING THAT AND I APOLOGIZE FOR THAT.
5 Q. DO YOU ATTRIBUTE THE MORPHINE AS POSSIBLY BEING --
6 A. WE SEE THIS IN MY POPULATION OF PATIENTS FREQUENTLY AND
7 THAT'S WHY I THOUGHT IT WAS INTERESTING.
8 Q. OKAY.
9 A. WE CALL IT THE LAZARUS SYNDROME WHERE PEOPLE SEEM TO
10 RISE FROM THE DEAD WHEN THEY'RE COMFORTABLE.
11 Q. SO THAT WAS AN ERROR?
12 A. THAT WAS AN ERROR, SIR.
13 Q. SO YOU DON'T HAVE ANY EXPLANATION AS TO WHY SHE SUDDENLY
14 IMPROVED DURING THAT TIME FRAME?
15 A. I DO NOT.
16 Q. OKAY. AGAIN, THE QUESTION IS WHEN, IN YOUR OPINION, DID
17 THIS PARTICULAR PATIENT BEGIN THE -- AND EVIDENCE THE
18 DOWNWARD TURN?
19 A. AND I THINK WE WENT OVER THAT VERY CAREFULLY EARLIER
20 THAT SHE BEGAN VOMITING ON THE 29TH AND THEN BEGAN HAVING
21 GASTROINTESTINAL BLOOD LOSS AT THAT TIME AND BECAME
22 EXTREMELY UNCOMFORTABLE. WE WENT OVER HER NURSING RECORDS
23 IN SOME DETAIL.
24 Q. APPRECIATE THAT, DOCTOR. I JUST WANTED TO RECONFIRM
25 THAT. SO YOUR TESTIMONY IS THAT THAT PROCESS BEGAN ON ABOUT
3094
1 THE 29TH?
2 A. UH-HUH.
3 Q. ENNIS ALLDREDGE, HE WAS IN THE HOSPITAL -- ADMITTED TO
4 THE HOSPITAL ON THE 10TH; IS THAT CORRECT?
5 A. YES.
6 Q. AND CAN YOU TELL US, DOCTOR, WAS HE, IN YOUR OPINION --
7 AS YOU INDICATED EARLIER, MET THE CRITERIA FOR THE GEROPSYCH
8 UNIT AT THAT TIME, THAT HE WAS TERMINAL BUT WAS NOT -- NOT
9 IN THE DYING PROCESS?
10 A. HE WAS THROWING HIS WHEELCHAIR AT HIS NURSING HOME.
11 Q. OKAY. AND YOU ALSO REVIEWED HIS -- HIS MEDICATIONS; IS
12 THAT CORRECT?
13 A. YES.
14 Q. WHEN WAS IT IN THE PROCESS OF HIS STAY IN THE UNIT THAT
15 YOU NOTICED THE DOWNWARD TURN RELATIVE TO HIS BEGINNING THE
16 DYING PROCESS?
17 A. IN MY REPORT I DIDN'T INDICATE A DATE. HE BEGAN
18 RECEIVING MORPHINE FOR DISCOMFORT ON THE 13TH, AND THAT THE
19 DAY BEFORE I THINK IS WHEN HE HAD THE M.R.I. THAT HE WOULD
20 NOT LAY STILL, SO IT WAS REALLY NOT A VERY GOOD STUDY. THEY
21 WEREN'T SURE ABOUT A NEW C.V.A. AT THAT TIME. HE OBVIOUSLY
22 DIED THE 14TH WHICH WAS, YOU KNOW, THE DAY AFTER HE BEGAN
23 RECEIVING SOME MORPHINE FOR HIS DISCOMFORT.
24 Q. SO THE -- THE 12TH OR THE 13TH WOULD BE --
25 A. RIGHT. RIGHT. YEAH.
3095
1 Q. AND THEN ELLEN ANDERSON, OF COURSE SHE DIED IN 17 HOURS.
2 I GUESS THE QUESTION THERE WOULD BE WAS SHE, IN YOUR
3 OPINION -- I THINK YOU HAD SAID SHE MET THE CRITERIA FOR A
4 HOSPICE CARE PATIENT WHICH WOULD MEAN SIX MONTHS OR MORE; IS
5 THAT CORRECT?
6 A. SIX MONTHS OR LESS.
7 Q. OR LESS. EXCUSE ME. SORRY.
8 MR. WILSON: MAY I HAVE JUST A MINUTE, YOUR HONOR?
9 THE COURT: YES.
10 (WHEREUPON, AT THIS TIME THERE'S AN OFF-THE-RECORD
11 DISCUSSION BETWEEN MR. WILSON AND MS. BARLOW.)
12 MR. WILSON: YOUR HONOR, I HAVE NO FURTHER
13 QUESTIONS OF THIS WITNESS.
14 THE COURT: OKAY. ANY REDIRECT?
15 MR. STIRBA: YES, YOUR HONOR.
16 REDIRECT EXAMINATION
17 BY MR. STIRBA:
18 Q. DOCTOR, YOU WERE ASKED ABOUT HYPOXIA. WHAT IS IT?
19 A. LOW BLOOD OXYGEN LEVELS.
20 Q. AND WHAT RELATIONSHIP DOES HYPOXIA HAVE TO A RESPIRATION
21 RATE OF 2 TO 4?
22 A. THE PATIENT WOULD NOT BE PUTTING ENOUGH AIR IN AND OUT
23 OF THE LUNGS TO REPLENISH THE OXYGEN LEVEL IN THE
24 BLOODSTREAM.
25 Q. AND WHY IS HYPOXIA NOT RELATED TO CHEYNE-STOKES
3096
1 RESPIRATION?
2 A. BECAUSE ONE OF THE CHARACTERISTICS OF CHEYNE-STOKES
3 RESPIRATIONS IS THAT YOU BREATHE FASTER AND DEEPER DURING
4 PART OF THE CYCLE, WHICH WOULD THEN INTRODUCE MORE OXYGEN
5 INTO THE BLOODSTREAM AND TREAT THE HYPOXIA.
6 Q. BASED UPON YOUR REVIEW OF THE RECORDS, DO YOU HAVE AN
7 OPINION AS TO WHEN -- AS TO WHETHER ANY OF THE PATIENTS IN
8 THIS CASE SUSTAINED ANY DECREASED BREATHING AS A RESULT OF
9 IMPROPER USE OF MORPHINE?
10 A. THERE ARE A NUMBER OF NOTES IN ALL THE RECORDS
11 SHOWING -- FROM BOTH PHYSICIAN AND NURSE -- THAT THE
12 PATIENTS' RESPIRATORY RATES WERE NOT DIMINISHED.
13 IN JUDITH LARSEN, AT ONE POINT HER RESPIRATORY RATE WAS
14 DIMINISHED -- WE WENT OVER THAT EARLIER -- AND THEY WITHHELD
15 THE MORPHINE UNTIL IT RETURNED TO NORMAL.
16 Q. BASED UPON --
17 A. SO SHE -- REALLY NONE OF THE PATIENTS SHOWED ANY
18 SIGNIFICANT RESPIRATORY DEPRESSION FROM MORPHINE.
19 Q. BASED UPON YOUR REVIEW OF THE RECORDS, DO YOU HAVE AN
20 OPINION AS TO WHETHER ANY OF THE PATIENTS SUFFERED
21 SLEEPINESS OR A COMA AS A RESULT OF IMPROPER USE OF
22 MORPHINE?
23 A. THE RECORDS SHOW THAT ALL OF THESE PATIENTS HAD IMPAIRED
24 MENTAL STATUS PRIOR TO THE INITIATION OF MORPHINE THERAPY
25 SO THAT THEY WERE ALL ALREADY SEDATED OR NEARING COMA.
3097
1 Q. BASED UPON YOUR REVIEW OF THE RECORDS, DO YOU HAVE AN
2 OPINION AS TO WHAT IF ANY OF THESE PATIENTS SUFFERED LOW
3 BLOOD -- BLOOD PRESSURE AS A RESULT OF IMPROPER USE OF
4 MORPHINE?
5 A. THE SIMILAR -- THE VITAL SIGNS THAT WERE RECORDED WERE
6 SIMILAR TO THE RESPIRATORY RATES. THEY DID NOT SHOW A DROP
7 IN BLOOD PRESSURE UNTIL SHORTLY BEFORE DEATH.
8 Q. AND BASED UPON YOUR REVIEW OF THE RECORDS, DO YOU HAVE
9 AN OPINION AS TO WHETHER ANY OF THESE PATIENTS SUFFERED A
10 DECREASED FOOD OR WATER INTAKE AS A RESULT OF THE IMPROPER
11 ADMINISTRATION OR USE OF MORPHINE?
12 A. MOST OF THESE PATIENTS WERE ALREADY SUFFERING FROM
13 IMPAIRED FOOD AND WATER INTAKE. THE BRIEF AMOUNTS OF TIME
14 THAT THEY WERE ALIVE RECEIVING MORPHINE SHOULD NOT HAVE
15 AFFECTED THEIR LIFE EXPECTANCY FROM THAT STANDPOINT ALONE.
16 SO THAT THE FOOD AND WATER INTAKE IS NOT RELEVANT TO THE --
17 TO THE DEATH.
18 Q. BASED UPON YOUR REVIEW OF THE RECORDS AND YOUR EXPERTISE
19 AS AN END-OF-LIFE CARE PHYSICIAN, DO YOU HAVE AN OPINION AS
20 TO WHETHER OR NOT MORPHINE WAS APPROPRIATELY USED IN THE
21 RECORDS THAT YOU REVIEWED?
22 A. YES. I BELIEVE MORPHINE WAS USED APPROPRIATELY FOR
23 SYMPTOM MANAGEMENT IN THESE PATIENTS.
24 MR. STIRBA: THANK YOU.
25 THAT'S ALL I HAVE, YOUR HONOR.
3098
1 THE COURT: ANYTHING FURTHER? IS THERE ANYTHING
2 FURTHER?
3 MR. WILSON: JUST -- JUST ONE THING, YOUR HONOR.
4 MAYBE I COULD HAVE THIS MARKED AS AN EXHIBIT.
5 RECROSS-EXAMINATION
6 BY MR. WILSON:
7 Q. DOCTOR, I SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT
8 NUMBER 43 AND JUST ASK YOU TO TAKE A LOOK AT THAT AND SEE IF
9 YOU CAN IDENTIFY THAT, IF WOULD YOU, PLEASE.
10 A. IT'S A -- THE PAGE ON MORPHINE SULFATE ORAL SOLUTION.
11 Q. FROM THE P.D.R.?
12 A. FROM THE P.D.R., 19 -- PAGE 1936. WHAT YEAR, I DON'T
13 KNOW.
14 Q. CAN YOU TELL ME UNDER THE PHARMACODYNAMIC SECTION AS TO
15 THE -- I THINK WE'VE HIGHLIGHTED SOME SECTIONS THERE,
16 DOCTOR, IF YOU COULD READ THAT HIGHLIGHTED SECTION.
17 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. IT
18 HASN'T BEEN OFFERED, AND IF IT'S OFFERED, IT'S IRRELEVANT.
19 LACK OF FOUNDATION.
20 MR. WILSON: WELL, I THINK WE SET THE FOUNDATION.
21 IT'S FROM THE PHYSICIAN'S DESK REFERENCE.
22 THE COURT: WELL, NO, YOU STATED IT. THE
23 FOUNDATION HAS TO BE LAID WITH THE WITNESS, IF THE WITNESS
24 IS FAMILIAR WITH IT.
25 MR. WILSON: OKAY.
3099
1 Q. (BY MR. WILSON) ARE YOU FAMILIAR WITH THAT PARTICULAR
2 REFERENCE, DOCTOR?
3 A. WHAT YEAR IS THIS P.D.R.?
4 Q. MAYBE I WILL --
5 A. SHOULD BE ON THE BACK OF THE BINDING.
6 Q. MAYBE I'LL TAKE A LOOK AT THIS AND SEE IF -- LOOKS LIKE
7 IT'S THE 1995 EDITION OF THE P.D.R.
8 A. IT'S ONLY FIVE YEARS OUT OF DATE.
9 Q. PARDON?
10 A. IT'S ONLY FIVE YEARS OUT OF DATE.
11 Q. WELL, THIS WAS THE P.D.R. --
12 A. RIGHT.
13 Q. -- THAT WAS IN EFFECT DURING THIS TIME PERIOD; IS THAT
14 CORRECT?
15 A. IT WOULD HAVE BEEN JUST A YEAR OUT OF DATE BECAUSE THE
16 '96 WOULD HAVE COME OUT WHEN THESE PATIENTS WERE ADMITTED.
17 Q. THE '96 WOULD HAVE --
18 A. YES, I AM FAMILIAR WITH THIS.
19 Q. SO -- SO WHAT YOU'RE SAYING IS IS THAT THIS P.D.R. IS
20 OUT OF DATE?
21 A. YES, SIR.
22 Q. AND IT WOULD HAVE BEEN THE -- THE P.D.R. IN EFFECT IN
23 DECEMBER OF 1995, WOULD IT NOT?
24 A. YES, IT WOULD.
25 Q. OKAY. AND IT WOULD HAVE BEEN STILL IN EFFECT THROUGH
3100
1 THE FIRST PART OF '96; IS THAT CORRECT?
2 A. NO. THE '96 WOULD HAVE COME OUT IN JANUARY.
3 Q. I SEE. JANUARY 1ST?
4 A. IT VARIES.
5 Q. NEVER MIND, DOCTOR. I'LL WITHDRAW THE QUESTION.
6 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
7 HONOR.
8 THE COURT: OKAY. MAY THIS WITNESS BE EXCUSED?
9 MR. STIRBA: YES, YOUR HONOR.