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 ME