Michael Sumko, MD
1 MICHAEL SUMKO,
2 CALLED BY THE PLAINTIFF, HAVING BEEN FIRST DULY
3 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
4 DIRECT EXAMINATION
5 BY MR. MAJOR:
6 Q. WILL YOU STATE YOUR NAME AND OCCUPATION FOR THE RECORD.
7 A. MY NAME IS MICHAEL H. SUMKO, I'M AN ORTHOPEDIC SURGEON.
8 Q. AND WOULD YOU SPELL YOUR LAST NAME FOR THE RECORD?
9 A. S-U-M-K-O.
10 Q. AND HOW LONG HAVE YOU BEEN AN ORTHOPEDIC SURGEON?
11 A. I WAS BOARD CERTIFIED IN 1991, SO NINE YEARS.
12 Q. WHEN DID YOU GRADUATE FROM MEDICAL SCHOOL?
13 A. 1984.
14 Q. AND WHERE DID YOU DO YOUR RESIDENCY AT?
15 A. BROOKE ARMY MEDICAL CENTER IN SAN ANTONIO, TEXAS.
16 Q. AND WHAT TRAINING DID YOU HAVE AFTER YOUR RESIDENCY?
17 A. FOLLOWING MY RESIDENCY, I DID SOME SPORTS MEDICINE IN
18 SAN ANTONIO WITH ONE OF THE DOCTORS THERE FOR SPORTS
19 MEDICINE TRAINING.
20 Q. WHERE DO YOU CURRENTLY PRACTICE AT?
21 A. IN BRIGHAM CITY, UTAH.
22 Q. AND WHAT DOES YOUR PRACTICE CONSIST OF?
23 A. GENERAL ORTHOPEDICS, PRIMARILY WITH A EMPHASIS ON SPORTS
24 MEDICINE.
25 Q. AND FOR THE BENEFIT OF MYSELF AND THE JURY, CAN YOU
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1 EXPLAIN A LITTLE BIT ABOUT WHAT ORTHOPEDICS IS, WHAT IT
2 ENTAILS?
3 A. ORTHOPEDICS IS BASICALLY THE PRACTICE OF STRAIGHTENING,
4 FIXING THINGS. I REPAIR FRACTURES, MUSCLES, TENDONS,
5 LIGAMENTS, BONES. EVERYTHING OUTSIDE OF THE BRAIN AND THE
6 CRANIAL CAVITY AND OUTSIDE THE CHEST AND ABDOMEN, THE REST
7 IS ORTHOPEDICS.
8 Q. AND HAVE YOU BEEN PRACTICING THAT CONTINUOUSLY SINCE
9 1991?
10 A. I HAVE.
11 Q. AND I THINK I ASKED YOU THIS: DID YOU HAVE AN
12 OPPORTUNITY TO KNOW ONE ELLEN ANDERSON?
13 A. I DID. SHE WAS A PATIENT OF MINE IN 1995.
14 Q. AND HOW DID YOU COME TO GET TO KNOW HER?
15 A. I WAS CALLED TO SEE HER AFTER -- BECAUSE OF HIP PAIN
16 WHICH SHE HAD SUSTAINED A FALL TWO WEEKS PRIOR TO ADMISSION
17 TO MY SERVICE AND MY SEEING HER SHE HAD FALL AND EVENTUALLY
18 DEVELOPED INCREASING HIP PAIN.
19 Q. DO YOU KNOW WHERE SHE HAD BEEN LIVING AT THE TIME THAT
20 SHE HAD HER FALL?
21 A. I BELIEVE IT WAS AT HOME BUT I'M NOT FOR CERTAIN. I
22 WOULD HAVE TO LOOK AT MY NOTES.
23 Q. CAN YOU DESCRIBE A LITTLE BIT ABOUT WHAT YOU FOUND AS
24 FAR AS WHAT THE INJURIES CONCERNED OR WHAT OCCURRED THERE?
25 A. BASICALLY THIS WAS A HEALTHY -- A HEALTHY LADY WHO AT
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1 AGE 91 HAD FALLEN ON HER HIP AND SHE HAD A FRACTURE WHICH
2 APPARENTLY WAS A SUBCLINICAL FRACTURE WHEN SHE WAS FIRST
3 SEEN. WHAT THAT MEANS IS, IS IT WAS A CRACK IN THE BONE
4 WHICH NO ONE COULD PICK UP ON X-RAY AND SHE WAS GIVEN THE
5 CORRECT INFORMATION TO CONTINUE AMBULATING BUT AMBULATING
6 WITH A WALKER, PARTIAL WITH TOUCH WEIGHT BEARING AND IF THE
7 PAIN DIDN'T RESOLVE, SHE WAS OBVIOUSLY TO COME BACK. THE
8 PAIN PERSISTED OVER THE NEXT COUPLE OF WEEKS AND WHEN SHE
9 DID COME BACK, IT WAS NOTED THAT THE FRACTURE HAD DISPLACED,
10 THAT THE LINE HAD BECOME MORE PROMINENT AND THAT THE BALL OF
11 THE HEAD OF THE FEMUR HAD ACTUALLY DISPLACED FROM ITS
12 ORIGINAL POSITION. SO THE FRACTURE WAS NOW IN A SITUATION
13 WHERE IT WOULD NOT LONGER HEAL.
14 Q. AND UPON -- AND YOU DETERMINED THAT BY X-RAY?
15 A. YES.
16 Q. AND UPON OBSERVING THAT, WHAT DID YOU DO?
17 A. WELL, IN A SITUATION WHERE THE FRACTURE GOES THROUGH THE
18 NECK OR THE HEAD, THE BALL OF THE FEMUR IS DISPLACED, IT
19 WON'T HEAL BECAUSE THE BLOOD SUPPLY COMES THROUGH THE NECK
20 INTO THE HIP AND SO YOU MUST REPLACE THE HEAD WITH A METAL
21 COMPONENT.
22 Q. NOW, WE'RE TALKING ABOUT HEAD WE'RE TALKING ABOUT THE
23 LITTLE ROUND --
24 A. THE ROUND BALL.
25 Q. THE HEAD JOINT DOWN THERE?
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1 A. EXACTLY.
2 Q. NOW, THE NECK IS WHAT?
3 A. THE NECK IS THE CONNECTION BETWEEN THAT AND THE SHAFT TO
4 THE FEMUR, WHICH IS THE LEG BONE.
5 Q. AS I UNDERSTAND IT THEN THE HEAD AREA SITS UP INTO THE
6 HEAD SOCKET?
7 A. EXACTLY.
8 Q. AND SO CONTINUE WITH YOUR EXPLANATION.
9 A. IT WAS DISPLACED MEANING THAT THE BLOOD SUPPLY HAD BEEN
10 DISRUPTED AND THAT THE FRACTURE HEALING WOULD NOT GO ON.
11 THAT BASICALLY IT HAD TO BE -- INTERVENTION WOULD HAVE TO BE
12 SOME SORT OF METAL COMPONENT TO REPLACE THAT TO GET THE
13 PATIENT OUT OF PAIN.
14 Q. OKAY. AND DID YOU APPROACH THE FAMILY ON THAT --
15 A. YES, I DID.
16 Q. -- SITUATION? AND WAS IT AGREED THAT AN OPERATION WOULD
17 TAKE PLACE?
18 A. YES, IT WAS.
19 Q. AND DO YOU RECALL APPROXIMATELY WHEN THAT OPERATION
20 SHOULD HAVE TAKEN PLACE?
21 A. ACCORDING TO MY NOTES, AS I'D HAVE TO GO BACK, THIS HAS
22 BEEN A FEW YEARS. IT OCCURRED ON -- LET'S SEE, THIS DATE
23 WOULD HAVE BEEN THE 19TH THE DAY OF ADMISSION, LET'S SEE.
24 IT WAS DICTATED ON THE 19TH SO IT WAS ON THE 19TH, THE DAY
25 OF ADMISSION.
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1 Q. OKAY. NOW 19TH OF 1995?
2 A. THAT'S CORRECT.
3 Q. WHAT MONTH WAS IT?
4 A. 6-19, JUNE.
5 Q. JUNE OF 1995. NOW, THIS WAS A 91 -- AS INDICATED AT THE
6 TIME, WAS WHAT 91-YEAR-OLD LADY?
7 A. THAT'S CORRECT, YES.
8 Q. DID YOU HAVE ANY CONCERNS ABOUT OPERATING OR PERFORMING
9 THIS SURGERY ON A LADY OF THAT ADVANCED AGE?
10 A. WE ALWAYS DO. PRIMARILY BECAUSE OF USUALLY NO MATTER
11 WHAT THEIR HEALTH IS, AT AGE 91 THEY UNDERGO A HIP
12 REPLACEMENT, A HALF OF HIP REPLACEMENT IS BASICALLY WHAT
13 WE'RE DOING, WHEN YOU BEGIN DOING SURGERY THAT INVOLVES THAT
14 MUCH BLOOD LOSS AND OTHER THINGS, IT'S A TREMENDOUS TAXING
15 SURGERY ON THE SYSTEM SO WE'RE VERY CAREFUL. DURING THE
16 SURGERY WHEN WE REPLACE THE CEMENT IN AND WE CEMENT THE
17 PROSTHESIS INTO THE HIP, WOULD HE DO ALL THE THINGS POSSIBLE
18 JUST PRIOR TO THAT TO KEEP THEIR BLOOD PRESSURE ELEVATED, TO
19 KEEP THEIR RESPIRATIONS ADEQUATE, AND MOST OF ALL, WE ALMOST
20 ALWAYS DO THESE UNDER SPINAL ANESTHETIC BECAUSE IT'S THE
21 LEAST AMOUNT OF STRESS ON THE RESPIRATORY AND CARDIOVASCULAR
22 SYSTEM. WHEN WE HAVE PROBLEMS AND THE PATIENTS DIE DURING
23 SURGERY, IT'S BECAUSE THEIR CARDIOVASCULAR SYSTEM FAILS.
24 Q. LET ME GO BACK A LITTLE BIT WITH THE CONCERNS AND SEE IF
25 I UNDERSTAND WITH THE OPERATION. WHAT, IF ANYTHING, DID YOU
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1 DO PRIOR TO THE OPERATION TO DETERMINE HER ABILITY TO
2 WITHSTAND THE OPERATION?
3 A. LET'S SEE, I BELIEVE SHE WAS SEEN -- I WOULD HAVE TO
4 CHECK AND SEE. I THINK SHE WAS SEEN BY ONE OF OUR INTERNS.
5 BUT NORMALLY WE HAVE ALL PATIENTS CLEARED FOR A MAJOR
6 SURGERY LIKE THIS WHEN THEY ARE ELDERLY BY THEIR INTERNIST,
7 SOMEONE WHO IS KEEPING THEM -- SEEING THEM FOR THEIR OTHER
8 MEDICAL PROBLEMS. I DON'T RECALL IF SHE HAD BEEN SEEN OR
9 NOT.
10 Q. BUT BASED ON YOUR -- DID YOU DO AN EXAMINATION OF HER?
11 A. I DID EXAMINE HER. I DID A PHYSICAL EXAM AS WELL.
12 USUALLY WHEN THEY COME IN WITH MULTIPLE MEDICATIONS, BLOOD
13 PRESSURE, HEART MEDICATIONS, ALMOST ALWAYS BEFORE WE TAKE
14 THEM TO THE OPERATING ROOM THEY ARE SEEN BY EITHER THEIR
15 CARDIOLOGIST OR BY THEIR OWN PHYSICIAN TO CLEAR THEM FOR THE
16 SURGERY.
17 Q. THEN YOU DO SOMETHING BEYOND THAT?
18 A. RIGHT. AND THEN I EXAMINE THEM MYSELF, MAKE SURE THAT I
19 AGREE AND THIS LADY WAS GENERALLY HEALTHY. SHE HAD BEEN
20 TAKING TWO MEDICATIONS, AMITRIPTYLINE AND DARVOCET -- AM I
21 TALKING TOO FAST?
22 THE REPORTER: YES.
23 THE WITNESS: I'M SORRY.
24 THE COURT: WHEN SHE QUITS WORKING, WE ALL HAVE TO
25 STOP.
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1 THE WITNESS: I APOLOGIZE. I'M USED TO TALKING
2 FAST. JUST REACH BACK AND HIT ME WITH SOMETHING.
3 Q. (BY MR. MAJOR) AND WHAT WAS THOSE TWO MEDICATIONS SHE
4 WAS TAKING?
5 A. AMITRIPTYLINE.
6 Q. AND WHAT IS THAT?
7 A. THAT'S BASICALLY AN ANTIDEPRESSANT MEDICATION AND
8 DARVOCET FOR PAIN. T
9 Q. OKAY. AND DO YOU KNOW WHAT TYPE OF PAIN SHE WAS
10 EXPERIENCING OR WHAT SHE WAS USING THE DARVOCET FOR?
11 A. FOR THE HIP PAIN, I BELIEVE, AND THAT WOULD HAVE BEEN
12 GIVEN TO HER PRIOR TO MY SEEING HER BECAUSE OF THE FALL
13 AND --
14 Q. AND DO YOU KNOW PRIOR TO THIS PERIOD OF TIME, HAD SHE
15 BEEN TAKING ANY MEDICATIONS, DO YOU RECALL?
16 A. I DON'T THINK SHE WAS. THE AMITRIPTYLINE MAY HAVE BEEN
17 THE ONLY ONE.
18 Q. SO IN YOUR EXAMINATION IN PERFORMING THIS OPERATION, DID
19 YOU FIND ANY CONDITION THAT YOU WOULD DETERMINE TO BE
20 LIFE-THREATENING?
21 A. NONE WHATSOEVER.
22 Q. COULD YOU JUST BASICALLY DESCRIBE -- YOU TALKED A LITTLE
23 BIT ABOUT THE OPERATION. CAN YOU GIVE A LITTLE MORE DETAIL
24 WHAT THAT ENTAILS AS FAR AS THE PATIENT IS CONCERNED?
25 A. BASICALLY IT ENTAILS MAKING AN INCISION IN OVER THE
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1 BUTTOCKS AREA OF THE HIP AND THEN DISLOCATING THE BROKEN
2 PORTION OF THE HIP OUT OF THE SOCKET, REAMING OUT THE CANAL
3 OF THE FEMUR AND THEN SIZING IT TO AN APPROPRIATE SIZE SO
4 THAT THE BALL WE PUT IN THERE DOES NOT DISLOCATE AFTER THIS.
5 WE CEMENT THE BALL IN WHICH IS A VERY IMPORTANT PART OR
6 STAGE OF THIS OPERATION BECAUSE AT THAT POINT CEMENT IS
7 PLACED IN WHICH IS A TOXIC SUBSTANCE WHICH CAN CAUSE BLOOD
8 PRESSURE DROPS AND PULSE AND RESPIRATION AND ALL SORTS OF
9 THINGS. AND SUBSEQUENTLY, ONCE IT'S CEMENTED IN, IT'S
10 RELOCATED INTO THE HIP, THE PATIENT IS SEWN UP, A DRAIN IS
11 PLACED IN AND THEY ARE TAKEN TO THE RECOVERY ROOM.
12 Q. APPROXIMATELY HOW LONG DOES THE OPERATION TAKE?
13 A. I BELIEVE IT'S AN HOUR, USUALLY IT'S AN HOUR, HOUR AND A
14 HALF.
15 Q. NOW, YOU MENTIONED -- JUST FOR MY OWN EDUCATION, YOU
16 MENTIONED THE FACT THAT YOU WERE DOING A SPINAL --
17 A. ANESTHETIC?
18 Q. -- ANESTHETIC. AND HOW DOES THAT WORK?
19 A. BASICALLY WHAT THAT DOES IS -- ACTUALLY, SHE HAD A
20 GENERAL ANESTHETIC. I'M SORRY. NORMALLY WE DO A SPINAL
21 ANESTHETIC ON PEOPLE WHO WE FEEL ONE OF TWO THINGS HAPPENS.
22 EITHER THE PATIENT IS -- HAS ENOUGH RISKS THAT WE'RE
23 CONCERNED ABOUT PUTTING TO SLEEP OR OCCASIONALLY WE WILL TRY
24 A SPINAL ANESTHETIC ON A PERSON IF WE CAN'T GET IT IN
25 BECAUSE THERE'S A LOT OF ARTHRITIS IN THE LUMBAR SPINE, WE
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1 CAN'T GET A NEEDLE IN, THEY'LL GO TO GENERAL ANESTHETIC. I
2 DIDN'T MARK WHETHER OR NOT THEY HAD ATTEMPTED THAT. JUST A
3 SECOND. SHE HAD A GENERAL ANESTHETIC AND SO EITHER THE
4 ANESTHESIOLOGIST FELT LIKE SHE MAYBE REQUESTED THAT OR THEY
5 FELT SHE WAS HEALTHY ENOUGH TO UNDERGO IT.
6 Q. THAT TYPE OF THING?
7 A. THAT TYPE OF THING.
8 Q. SO AFTER SHE WAS TAKEN OUT OF THE -- AFTER THE
9 OPERATION, SHE WAS SENT OVER TO THE RECOVERY?
10 A. THAT'S CORRECT.
11 Q. AND DID YOU DO FOLLOW-UP WITH HER AT THAT TIME?
12 A. I DID. I CHECK THEM IN RECOVERY AND THEN I CHECK THEM A
13 FEW HOURS LATER BEFORE THEY GO OUT ONTO THE WARD. AND THEN
14 THEY ARE PLACED ON THE WARD FOR A PERIOD OF USUALLY THREE TO
15 FOUR DAYS FOLLOWING THAT AT WHICH TIME WE START WALKING THEM
16 THE DAY AFTER SURGERY, GET THEM UP WALKING, WEIGHT BEARING.
17 THEY CAN GO FULL WEIGHT BEARING IF THEY CAN TOLERATE IT AND
18 THEN WE PROGRESS THAT WEIGHT BEARING.
19 AND THEN WHEN THEY GET INTO A SITUATION WHERE WE FEEL
20 THEY ARE STABLE WHERE THE POSTOPERATIVE COMPLICATIONS ARE
21 LEAST LIKELY TO OCCUR, WHICH ARE BLOOD CLOTS, WE THIN THEIR
22 BLOOD OUT WITH COUMADIN SO THEY DON'T GET BLOOD CLOTS IN THE
23 FIRST 30 DAYS. AM I TOO FAST?
24 WE THIN THEIR BLOOD OUT WITH COUMADIN AND WE HAVE THEM
25 AT LEAST AMBULATORY TO THE POINT WHERE THEY ARE GOING TO
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1 AVOID THINGS LIKE POSTOPERATIVE COMPLICATIONS FROM
2 PNEUMONIA, OTHER PROBLEMS LIKE THAT.
3 Q. AND DID MS. ANDERSON REACH THAT STAGE?
4 A. SHE DID.
5 Q. AND DID YOU DO -- DID YOU VISIT HER WHEN SHE WAS IN THE
6 HOSPITAL AT ALL WHEN SHE WAS RECOVERING?
7 A. IN THE HOSPITAL?
8 Q. WHEN SHE WAS IN THE RECOVERY STAGE?
9 A. OH, YES, EVERY DAY.
10 Q. AND WHAT TYPE OF THINGS WOULD YOU DO WHEN YOU WERE
11 VISITING HER?
12 A. BASICALLY I MAKE SURE THAT THE WOUND THAT I HAVE CREATED
13 IS NOT BLEEDING. I CHECK -- USUALLY I'LL CHECK THEIR HEART
14 AND LUNG TO MAKE SURE THERE'S NO PROBLEMS THERE.
15 POSTOPERATIVE PNEUMONIA IS A HIGH COMPLICATION IN THE
16 ELDERLY, ESPECIALLY AFTER GENERAL ANESTHETIC SO I CHECK
17 THEIR LUNGS. AND THEN A QUICK NEUROLOGICAL EXAM TO MAKE
18 SURE I HAVEN'T STRETCHED ANY NERVES, DONE ANYTHING TO HER
19 LEG DURING THE PERIOD OF SURGERY AND THAT USUALLY TAKES FOUR
20 OR FIVE MINUTES TO DO THOSE BASIC THINGS AND THAT'S DONE ON
21 A DAILY BASIS.
22 Q. DID YOU FIND IN MAKING THAT EXAMINATION THAT ELLEN
23 ANDERSON HAD ANY COMPLICATIONS?
24 A. SHE HAD NO COMPLICATIONS.
25 Q. WHAT WAS HER GENERAL HEALTH DURING THAT PERIOD OF TIME?
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1 A. VERY EXCELLENT CONDITION FOR 91 YEARS OF AGE.
2 EXCELLENT.
3 Q. AND DURING THIS PERIOD OF TIME, ASSUMING -- THIS SOUNDS
4 LIKE A FAIRLY PAINFUL OPERATION, I'M ASSUMING THERE'S SOME
5 PAIN INVOLVED.
6 A. THERE IS.
7 Q. DURING THIS PERIOD OF TIME WAS ELLEN ANDERSON UNDER
8 PAIN?
9 A. SHE DID HAVE SOME PAIN, YES.
10 Q. AND HOW WAS THAT PAIN TREATED?
11 A. NORMALLY WE TRY TO STAY AWAY FROM, IF POSSIBLE, AS MANY
12 OF THE HARD, HEAVY NARCOTICS MEANING MORPHINE, DEMEROL,
13 THOSE TYPE OF THINGS IN THE FIRST FEW DAYS AFTER SURGERY
14 BECAUSE OF USUAL RESPIRATORY DEPRESSION AND OTHER PROBLEMS.
15 I HAVE NOTED IN A LOT MY PATIENTS AND I THINK IT'S GENERALLY
16 IN THE LITERATURE IT IS WELL-DOCUMENTED THAT PATIENTS WHO
17 ARE ELDERLY FOLLOWING LARGE SURGERIES LIKE THIS ARE
18 OFTENTIMES WILL GO INTO A PERIOD OF MENTAL DISORIENTATION
19 WITH A LOT OF NARCOTICS ON BOARD AND SO WE TRY TO KEEP THEM
20 AWAY FROM THOSE.
21 I WOULD RATHER HAVE THEM IN SOME PAIN AND --
22 COMFORTABLE TO A DEGREE BUT IN SOME PAIN AND STILL ORIENTED
23 MENTALLY AND PHYSICALLY NOT UNDER ANY STATES OF DEPRESSION.
24 IT'S VERY EASY IN THE ELDERLY TO PHYSICALLY AND MENTALLY
25 DEPRESS THEM WITH EVEN THE SMALLEST DOSES OF MEDICATIONS.
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1 Q. SO DURING THIS PERIOD OF TIME, WHAT TYPE OF MEDICATIONS
2 HAD YOU GIVEN HER?
3 A. I DON'T HAVE MY HOSPITAL ORDERS, I CAN'T -- I CAN'T TELL
4 YOU. THE NORMAL -- NORMAL THINGS ARE WE TRY TO KEEP THEM ON
5 LIGHT ORAL NARCOTICS LIKE LORTAB. OCCASIONALLY THE DARVOCET
6 IF THEY COME INTO THE HOSPITAL ON DARVOCET OR DARVON
7 SOMETIMES THEY'LL GO BACK ON THAT BECAUSE THEY'VE FOUND SOME
8 RELIEF WITH THAT. AGAIN, POSTOPERATIVE, I'M NOT SURE.
9 Q. YOU DON'T KNOW. EVENTUALLY YOU REACHED A POINT WHERE
10 SHE WAS DISCHARGED; IS THAT CORRECT?
11 A. THAT'S CORRECT. AT THAT POINT SHE WAS ON A MILD DOSAGE
12 OF LORTAB 5'S WHICH SHE TOOK ONE EVERY SIX TO EIGHT HOURS
13 FOR PAIN.
14 Q. LET ME TALK ABOUT THAT. WHEN SHE GOT TO THE DISCHARGE
15 WHAT WAS HER PHYSICAL CONDITION ON DISCHARGE?
16 A. SHE WAS AMBULATORY WITH WALKING ASSISTANCE, WITH A
17 CANE -- I'M SORRY, WITH A CANE -- WITH A WALKER, STAND-BY
18 ASSISTANCE. SHE WAS -- SHE HAD NONE OF THE RESPIRATORY
19 COMPLICATIONS, PNEUMONIA OR OTHER THINGS LIKE THAT. SHE HAD
20 NO EVIDENCE OF DEEP VEIN THROMBOPHLEBITIS IN HER LEGS. SHE
21 WAS BASICALLY VERY STABLE AND WE WERE THEN ABLE TO SHIP HER
22 TO THE NURSING HOME WHERE WE FELT LIKE SHE WOULD GET
23 PRIMARILY REHAB AND NOT SO MUCH MEDICAL CARE.
24 Q. OKAY. NOW, YOU'VE INDICATED -- YOU'VE TALKED A LITTLE
25 BIT ABOUT THE PAIN. LET ME ASK YOU THIS: HOW DOES A DOCTOR
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1 IN A CASE LIKE MS. ANDERSON DETERMINE HOW MUCH MEDICATION
2 SHE SHOULD BE GIVEN?
3 A. HOW DOES A DOCTOR DETERMINE HOW MUCH MEDICATION?
4 Q. WHAT'S THE RIGHT DOSAGE I GUESS IS WHAT I'M SAYING.
5 A. THAT'S VERY SUBJECTIVE, THAT'S A TOUGH ONE.
6 Q. I UNDERSTAND THAT.
7 A. YOU KNOW, I THINK WHAT WE DO -- WE OBVIOUSLY HAVE TO
8 TITRATE A LOT OF TIMES WHAT A PATIENT GETS AS FAR AS YOU
9 START THEM OUT -- I ALWAYS START PATIENTS OUT ON A LIGHTER
10 DOSE --
11 MR. STIRBA: YOUR HONOR, YOUR HONOR, I GUESS I'M
12 GOING TO INTERPOSE THIS OBJECTION AND I DON'T MEAN TO
13 INTERRUPT THE WITNESS, IF HE WANTS TO TESTIFY ABOUT MS.
14 ANDERSON AND WHAT HE DID AND WHY HE DID, THAT'S FINE. BUT
15 IF HE'S BEING OFFER NOW AS SOME EXPERT IN PAIN MEDICATION
16 AND GOING TO TALK GENERALLY THEN I NEED TO KNOW THAT WE'LL
17 GO AHEAD AND TREAT HIM DIFFERENTLY THAN A TREATING
18 PHYSICIAN.
19 THE COURT: WHAT'S YOUR --
20 MR. MAJOR: THAT'S NOT MY INTENTION, YOUR HONOR.
21 MY INTENTION IS TO LAY THE FOUNDATION OF HOW HE DOES THIS
22 AND THEN GET INTO SPECIFICS WITH MS. ANDERSON.
23 THE COURT: WHY DON'T WE TRY TO GET -- APPLY IT TO
24 THE PATIENT.
25 MR. MAJOR: PARDON, YOUR HONOR?
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1 THE COURT: I SAID APPLY IT TO THIS PATIENT.
2 Q. (BY MR. MAJOR) OKAY. SO IN MS. ANDERSON'S CASE, HOW
3 WOULD YOU HAVE DETERMINED THE DOSAGE TO GIVE HER?
4 A. AGAIN, AS I SAID, I TRY TO STAY AWAY THE HEAVY NARCOTICS
5 LIKE MORPHINE AND DEMEROL BECAUSE OF THEIR SEDATIVE AND
6 RESPIRATORY DEPRESSIVE EFFECTS AND TRY ORAL NARCOTICS, A FEW
7 I.M. MEDICATIONS. USUALLY SOME I.M. -- IF WE HAVE TO GO TO
8 DEMEROL NARCOTIC-WISE, I.M. MEDICATIONS WE START LIGHT WITH
9 25 TO 50 MILLIGRAMS AND IF THEY HAVE BREAKTHROUGH PAIN, IN
10 HER SITUATION, THEN WE WOULD INCREASE IT.
11 Q. AND WHEN YOU REACH A POINT -- I ASSUME THERE'S A POINT
12 WHERE YOU REACH WHERE YOU STOP INCREASING?
13 A. EXACTLY. YOU KNOW, AS I INDICATED, I LIKE --
14 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. NOW
15 IT'S IN THE GENERAL AREA OF PAIN MANAGEMENT.
16 THE COURT: SUSTAINED.
17 Q. (BY MR. MAJOR) OKAY. WITH ELLEN ANDERSON SPECIFICALLY
18 IS THIS BASICALLY THE PROCEDURE YOU WOULD FOLLOW?
19 A. I WOULD FOLLOW THAT PROCEDURE.
20 Q. AND SO -- AS SO YOU WOULD GIVE ELLEN ANDERSON A LIGHT
21 DOSE AND THEN KIND OF INCREASE IT. HOW DID YOU KNOW WHEN
22 YOU'VE REACHED THE POINT OF TOO MUCH I GUESS YOU WOULD SAY
23 WITH MS. ANDERSON?
24 A. HOW WOULD I KNOW IN HER SITUATION? OBVIOUSLY THE SIGNS
25 THAT NARCOTICS GIVE YOU IF YOU ARE USING NARCOTICS AND THAT
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1 IS RESPIRATORY DEPRESSION. BUT YOU STOP WELL BEFORE THAT.
2 AS I INDICATED, WITH ORTHOPEDICS, A LOT OF TIMES WE CAN USE
3 PAIN MEDICATIONS THAT ARE NONNARCOTIC TO GIVE THEM SOME
4 RELIEF, TORADOL WHICH CAN BE GIVEN I.V. OR I.M. WHICH IS A
5 MEDICATION, IT'S A NONSTEROIDAL ANTI-INFLAMMATORY
6 MEDICATION, IS HAS NO RESPIRATORY DEFECTS -- EFFECTS ON IT
7 AND WE CAN GIVE THEM THOSE TYPE OF MEDICATIONS. A LOT OF
8 TIMES, AGAIN, I'LL DO THAT IF I'M -- GENERALLY SPEAKING, IF
9 I'M CONCERNED ABOUT THE PATIENT'S WELL-BEING WITH THE
10 MEDICATION I'M GIVING THEM.
11 Q. NOW, YOU MENTIONED A LITTLE BIT ABOUT SOME OF THE
12 NARCOTIC DRUGS. ARE YOU FAMILIAR WITH MORPHINE?
13 A. I AM.
14 MR. STIRBA: YOUR HONOR, YOUR HONOR, I'M GOING TO
15 OBJECT, RELEVANCY. ONCE AGAIN, IF HE'S AN EXPERT, FINE, WE
16 NEED TO KNOW THAT.
17 THE COURT: OKAY. IS THIS WITNESS BEING PRESENTED
18 AS A TREATING PHYSICIAN OR EXPERT?
19 MR. MAJOR: HE IS BEING BROUGHT ON HERE AS A
20 TREATING PHYSICIAN, YOUR HONOR, IF I MIGHT PROFFER MY --
21 MR. STIRBA: IN ORTHOPEDICS.
22 MR. MAJOR: -- IN ORTHOPEDICS. ALSO IN DEALING
23 WITH MS. ANDERSON, I'M GETTING INTO THE FACT HE'S ALREADY
24 MENTIONED THE FACT THAT THIS IS AN ELDERLY PATIENT --
25 THE COURT: WELL, THEN HAVE HIM SAY WHAT HE GAVE
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1 HER.
2 MR. MAJOR: BUT, YOUR HONOR, IF I MIGHT MAKE THE
3 EXPLANATION. I WANTED TO GET INTO THE FACT -- HE'S ALREADY
4 TESTIFIED --
5 THE COURT: EXCUSE ME. IF WE'RE GOING TO HAVE
6 EXPLANATIONS AND WE'RE GOING TO HAVE AN ARGUMENT, WE'RE
7 GOING TO GO OUTSIDE THE PRESENCE OF THE JURY. IT'S NOT
8 APPROPRIATE TO ARGUE THE MATTERS IN FRONT OF THE JURY.
9 MR. MAJOR: WELL, COULD WE APPROACH THE BENCH JUST
10 BRIEFLY?
11 THE COURT: YES.
12 MR. MAY: YOUR HONOR, WE'RE STILL ON OVERHEAD.
13 (DISCUSSION WAS HELD OFF THE RECORD.)
14 THE COURT: LADIES AND GENTLEMEN, I THINK -- I HATE
15 TO DO THIS BUT I'M GOING TO HAVE TO HAVE YOU GO OUT FOR A
16 MINUTE, AND HOPEFULLY IT WILL BE JUST A COUPLE OF MINUTES
17 AND SO THIS WILL BE THE LAST TIME AND THEN YOU CAN STAY
18 AWAKE FOR THE LAST HOUR.
19 WHILE YOU ARE OUT FOR THESE FEW MINUTES, REMEMBER NOT
20 TO DISCUSS THIS CASE AMONG YOURSELVES OR WITH ANYONE ELSE OR
21 ALLOW YOURSELVES TO BE ADDRESSED BY ANY PERSON ABOUT THE
22 SUBJECT OF THIS TRIAL AND ALSO DO NOT FORM OR EXPRESS AN
23 OPINION UNTIL THIS CASE IS FINALLY SUBMITTED TO YOU. SO
24 WE'LL JUST BE A FEW MINUTE.
25 (WHEREUPON THE JURY WAS EXCUSED.)
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1 THE COURT: YOU MAY BE SEATED. THE RECORD SHOULD
2 REFLECT THAT THE JURY HAS LEFT THE COURTROOM. WE HAD AN
3 OBJECTION, THERE WAS A QUESTION REGARDING MORPHINE. AND DO
4 YOU WANT TO STATE, MR. MAJOR, WHAT YOUR POSITION IS?
5 MR. MAJOR: YES. MY POSITION IS, YOUR HONOR, FOR A
6 PROFFER WE WERE ASKING THIS DOCTOR -- WE WERE INTENDING TO
7 ASK THE DOCTOR, HE'S ALREADY TESTIFIED THAT HE DID NOT GIVE
8 CERTAIN NARCOTICS TO THESE ELDERLY TYPE PATIENTS. MY
9 INTENTION WAS TO INDICATE HIS KNOWLEDGE OF MORPHINE AND THEN
10 TO ASK HIM NOT TO DEALING WITH A GENERAL PATTERN, BUT GIVING
11 HIS KNOWLEDGE OF ELLEN ANDERSON, HIS PHYSICAL OF ELLEN
12 ANDERSON WHY HE CHOSE NOT TO GIVE HER MORPHINE VERSUS SOME
13 OF THESE OTHER NARCOTIC DRUGS.
14 AND THIS BECOMES RELEVANT IN THIS CASE, YOUR HONOR,
15 BECAUSE WITH ELLEN ANDERSON WE HAVE A DOCTOR HERE WHO KNOWS
16 I WOULDN'T SAY INTIMATELY BUT HE AT LEAST HAS CONDUCTED A
17 PHYSICAL ON HER, HE HAS LOOKED AT HER PHYSICAL HEALTH, HE
18 HAS DONE -- AFTER THE OPERATION HE DID A DAILY VISIT WITH
19 HER TO EXAMINE HER PHYSICAL HEALTH FOR A PERIOD OF TIME AND
20 I THINK WE CAN GET INTO THE DATES WHEN SHE WAS IN AND OUT OF
21 DISCHARGE, HE KNOWS HER METABOLISM, KNOWS ALL THESE TYPE OF
22 THINGS ABOUT HER, AND HE HAS A RIGHT TO STATE BASED ON MY
23 TRAINING AND EXPERIENCE THIS IS WHY I WOULD NOT HAVE GIVEN
24 HER MORPHINE.
25 PART OF THE STATE'S WHOLE CASE HERE IS THAT WHEN ALLEN
717
1 ANDERSON HITS THE NORTH DAVIS HOSPITAL, WITHIN AN HOUR OR
2 TWO AFTER SHE HITS THE HOSPITAL, BY TELEPHONE RECORD,
3 TELEPHONE CONFERENCE, DR. WEITZEL ORDERS 10 MILLIGRAMS OF
4 MORPHINE. OUR EVIDENCE IS GOING TO BE THAT DR. WEITZEL
5 NEVER OBSERVED HER, NEVER SAW HER, NEVER DID A PHYSICAL ON
6 HER, DID NOTHING THAN JUST SIMPLY ORDER THE MORPHINE. AND
7 WE HAVE A RIGHT TO EXPLORE WHY THIS DOCTOR WOULD NOT -- FELT
8 THE CONDITION OF ELLEN ANDERSON THREE MONTHS OR I SHOULD SAY
9 ABOUT SIX MONTHS PRIOR TO THIS DID NOT DESERVE MORPHINE AND
10 THEN EXPLORE WHY DR. WEITZEL FELT THAT SHE DID. AND I THINK
11 THAT'S A VALID, RELEVANT ARGUMENT.
12 THE COURT: OKAY. MR. STIRBA, WHAT'S YOUR
13 RESPONSE?
14 MR. STIRBA: JUDGE, AS I UNDERSTAND IT, DR. SUMKO
15 IS AN ORTHOPEDIC SURGEON AND BASICALLY REPAIRED HER HIP AND
16 SHE HAD A PERIOD OF HOSPITALIZATION THEREAFTER AND OBVIOUSLY
17 HE FOLLOWED UP IN THE HOSPITAL ON IT. I BELIEVE THE TIME
18 PERIOD WE'RE TALKING ABOUT IS ABOUT A 30-DAY TIME PERIOD, IS
19 THAT ABOUT CORRECT, DOCTOR?
20 THE WITNESS: THAT'S CORRECT.
21 MR. STIRBA: FROM JUNE, MIDDLE OF JUNE TO SAY THE
22 MIDDLE OF JULY, THAT'S THE EXTENT OF THIS DOCTOR'S
23 INVOLVEMENT.
24 THE COURT: OF '95?
25 MR. STIRBA: OF '95, YES. SO THE FIRST THING I
718
1 WOULD SUGGEST IS REALLY I DON'T HAVE ANY PROBLEM ASKING
2 ANYTHING ABOUT WHAT HE DID, BUT IT'S VERY LIMITED IN TERMS
3 OF WHAT HE DID. IT WAS IMPORTANT, BUT LIMITED. HE IS NOT
4 HER TREATING PHYSICIAN ALL THE WAY THROUGH THE TIME PERIOD
5 WHEN SHE WAS HOSPITALIZED AT DAVIS. IN FACT, DR. WILDING
6 AND DR. KELLER WERE AND I THINK DR. WILDING IS NAMED ON THE
7 PROSECUTION'S WITNESS LIST.
8 SO THE FIRST PROBLEM IS HE IS A FACT WITNESS AS TO WHAT
9 HE DID. AND THE SECOND PROBLEM I HAVE IS IT'S SORT OF LIKE
10 ARGUING A NUMBER OF THESE INFERENCES. WHAT IS REALLY
11 PROBATIVE ABOUT WHAT THIS PHYSICIAN DID IN TERMS OF WHAT HE
12 DID IN THIS VERY NARROW, LIMITED AREA AND THEN SORT OF
13 APPLYING THAT TO WHAT HAPPENED SIX OR SEVEN MONTHS LATER IN
14 A HOSPITAL SETTING AT DAVIS? IT SEEMS TO ME THERE'S NO
15 QUESTION THESE ARE INDIVIDUALIZED JUDGEMENTS MADE BY
16 INDIVIDUAL CLINICIAN'S WHICH EITHER STAND OR FALL ON THEIR
17 OWN WEIGHT.
18 THE THIRD THING IS IT'S CUMULATIVE. THE STATE WILL
19 HAVE AT LEAST FOUR OR FIVE EXPERTS AND I PRESUME WHAT THEY
20 ARE GOING TO DO IS TO COME IN HERE AND CRITIQUE AND ANALYZE
21 THE PROPRIETY OF THE MORPHINE THAT WAS GIVEN TO MS. ANDERSON
22 WHEN SHE WAS HOSPITALIZED BASED UPON THE HOSPITAL RECORDS,
23 HER WHOLE CIRCUMSTANCE. AND SO FOR THIS PHYSICIAN TO
24 ADDRESS THAT IN EVEN AN OBLIQUE WAY IS REALLY CUMULATIVE.
25 AND, QUITE FRANKLY, IT'S REALLY -- ONCE AGAIN, I THINK WITH
719
1 A FACT WITNESS AS SAYING WHAT THEY DID, WHAT THEY SAW, WHAT
2 THEY OBSERVED. NOT TESTIFY ABOUT WHAT THEY DIDN'T DO AND
3 WHAT THEY DIDN'T OBSERVE AND WHAT THEY DIDN'T -- I MEAN,
4 THAT'S NOT WHAT A FACT WITNESS DOES AND ESSENTIALLY THE
5 DOCTOR IS A FACT WITNESS FOR THE PURPOSES OF THE HIP
6 OPERATION AND THE PROCEDURE. SO FOR THOSE REASONS, I THINK
7 IT'S AN INAPPROPRIATE QUESTION OF A FACT WITNESS PLUS INDEED
8 IS CUMULATIVE.
9 AND, THIRD, I THINK IT GENERALLY MISLEADS THE JURY
10 BECAUSE THEY ARE NOT REALLY CLEAR AS TO WHETHER DR. SUMKO IS
11 HERE ESSENTIALLY AS A PAIN EXPERT, IS DR. SUMKO HERE AS
12 SOMEBODY WHO IS GOING TO ADDRESS THE TREATMENT OF A HIP
13 FRACTURE OR IS DR. SUMKO HERE AS SOME EXPERT IN MORPHINE OR
14 SOME PAIN MEDICATION? BECAUSE IT'S DIFFICULT ENOUGH FOR ME
15 TO SORT OF, YOU KNOW, DIVINE THROUGH SOME OF THIS, I'M SURE
16 IT'S GOING TO BE EXCEEDINGLY MISLEADING TO THE JURY.
17 THE COURT: MR. MAJOR, YOUR RESPONSE?
18 MR. MAJOR: YOUR HONOR, FIRST OFF, AS TO THE
19 CUMULATIVENESS IN DEALING WITH THIS FROM OUR EXPERTS, ONE OF
20 THE PROBLEMS I KNOW WE'RE GOING TO HAVE AS SOON AS WE CALL
21 OUR EXPERTS IS THE DEFENSE IS GOING TO BE, YOU NEVER SAW THE
22 PATIENT. YOU ARE LOOKING AT THE COLD, HARD FACTS, YOU ARE
23 LOOKING AT THE AUTOPSY RECORDS --
24 THE COURT: WELL, THAT'S JUST KIND OF
25 CROSS-EXAMINATION. AN EXPERT IS AN EXPERT AND A TREATING
720
1 PHYSICIAN IS A TREATING PHYSICIAN. IF YOU MAKE A TREATING
2 PHYSICIAN AN EXPERT -- YOU KNOW, I MEAN, I GUESS THE CONCERN
3 THAT I HAVE IS IF THIS WAS SIX OR SEVEN MONTHS BEFORE, THIS
4 DOCTOR HAS ALREADY STATED THE REASON HE DOESN'T GIVE
5 NARCOTICS AND HE SAYS THE REASON WHY. IF YOU WANT TO ASK
6 HIM, YOU KNOW, ARE YOU FAMILIAR WITH MORPHINE, IS MORPHINE A
7 NARCOTIC, YOU KNOW, AND HE SAYS I DON'T GIVE NARCOTICS,
8 THAT'S FINE. IF YOU WANT TO GO BEYOND THAT, THEN I GUESS
9 WHAT WE'LL HAVE TO SAY IS THAT I'M NOT GOING TO HAVE SIX OR
10 SEVEN OR EIGHT WITNESSES ALL TESTIFY ABOUT THE SAME THING.
11 I TOLD ALL COUNSEL BEFORE THIS TRIAL UNDER RULE 611
12 UNDER THE RULES OF EVIDENCE, "IT IS MANDATORY THAT THE COURT
13 SHALL EXERCISE REASONABLE CONTROL OVER THE MODE AND ORDER OF
14 INTERROGATING WITNESSES AND PRESENTING EVIDENCE SO AS TO
15 MAKE THE INTERROGATION AND PRESENTATION EFFECTIVE FOR THE
16 ASCERTAINMENT OF THE TRUTH AVOID NEEDLESS CONSUMPTION OF
17 TIME AND TO PROTECT WITNESS FROM HARASSMENT OR UNDUE
18 EMBARRASSMENT."
19 AND I MADE THIS VERY CLEAR, YOU KNOW. WE DO NOT NEED
20 FIVE PEOPLE TALKING ABOUT -- I MEAN, IF THERE'S SOMETHING
21 THAT'S DISPUTED, YES, BUT WE DON'T NEED FOUR OR FIVE EXPERTS
22 TALKING ABOUT WHETHER IT WAS APPROPRIATE TO GIVE MORPHINE AT
23 THE TIME IN THE HOSPITAL AND THEN ANOTHER PERSON SAYING AND
24 THEN SIX, SEVEN AND EIGHT SAYING THE SAME THING.
25 MR. MAJOR: IF I MIGHT JUST FOR THE RECORD THEN,
721
1 YOUR HONOR, ASSUMING WHAT THE COURT DOES IF WE PUT ON OUR
2 EXPERT AND MR. STIRBA STANDS UP AND STARTS TO CROSS-EXAMINE
3 THEM TO THE FACT THAT YOU DID NOT SEE THIS PATIENT, YOU DID
4 NOT HAVE ANY HANDS-ON EXPERIENCE WITH THIS PATIENT, BUT YOU
5 ARE ONLY LOOKING AT AN AUTOPSY THAT WAS DONE FOUR OR FIVE
6 YEARS AFTER THE DEATH, THAT THAT WOULD NOT BE APPROPRIATE.
7 I MEAN, WHAT WE HAVE HERE IS A WITNESS --
8 THE COURT: WELL, NO, EVERYTHING -- I MEAN, I CAN'T
9 TELL HOW PEOPLE ARE GOING TO CROSS-EXAMINE. BUT THE WHOLE
10 POINT ABOUT THIS IS EVERYBODY IS GOING TO KNOW THAT THE
11 EXPERTS OBVIOUSLY DIDN'T SEE THE PEOPLE.
12 MR. MAJOR: RIGHT.
13 THE COURT: AND THE REASON THEY DON'T -- THAT'S WHY
14 THEY ARE EXPERTS. THAT'S WHY THEY ARE NOT TREATING
15 PHYSICIANS. SOMETIMES A TREATING PHYSICIAN CAN BE A TREATER
16 AND THEN IS GOING TO OFFER AN OPINION. BUT YOU DESIGNATED
17 ON YOUR PLAINTIFF'S WITNESS LIST PHYSICIANS AND YOU'VE
18 DESIGNATED EXPERTS. NOW EXPERTS -- YOUR EXPERTS ARE ALL
19 DOCTORS AND THEY ARE PEOPLE THAT BASICALLY DIDN'T SEE
20 THESE -- DIDN'T SEE THE FIVE PATIENTS ALIVE AND SO THEY ARE
21 GOING TO TESTIFY BASED UPON THEIR EXPERIENCE, BACKGROUND AND
22 EDUCATION. YOU KNOW, AS I UNDERSTAND IT, WE'VE GOT THE
23 WHO'S WHO OF PAIN AND CAUSE OF DEATH AND EVERYTHING ELSE AND
24 SO THOSE PEOPLE ARE GOING TO BE HERE AND BE PRESENTED FOR
25 THAT REASON. THE QUESTION IS, DO WE HAVE FIVE OR SIX
722
1 PEOPLE -- IT'S THE SAME THING. IF YOU WOULD PUT ONE MORE
2 WITNESS ON SAYING THAT WHAT HAPPENED TO ONE OF THESE FAMILY
3 MEMBERS, YOU KNOW, IF WE HAD FOUR OR FIVE PEOPLE INSTEAD OF
4 THREE AND THEY DON'T ADD ANYTHING, THAT'S CUMULATIVE.
5 MR. MAJOR: WELL, AND I UNDERSTAND WHERE THE COURT
6 IS COMING FROM AND I JUST WANT TO EXPRESS THE SITUATION, I
7 MEAN, THAT'S KIND OF THE FRUSTRATION WE HAVE. NUMBER ONE,
8 YOU DON'T HAVE TO BE DESIGNATED AN EXPERT TO TESTIFY ABOUT
9 CERTAIN THINGS. I COULD TESTIFY FROM MY OWN PRACTICAL
10 EXPERIENCE IN CERTAIN AREAS, FOR EXAMPLE, OF THE LAW. I
11 DON'T HAVE TO BE DESIGNATED AS AN EXPERT TO GET INTO THAT.
12 I MEAN, I CAN TESTIFY TO THAT BASED ON MY EXPERIENCE.
13 THE COURT: NO. ALL I'M SAYING IS IF YOU WANT TO
14 MAKE THIS PERSON AN EXPERT AND HAVE HIM TESTIFY ABOUT WHEN
15 YOU GIVE MORPHINE OR WHEN YOU DON'T GIVE MORPHINE, RATHER
16 THAN MAKING HIM A TREATER AND YOU MAKING HIM AN EXPERT, I'LL
17 JUST DEDUCT HIM AS AN EXPERT.
18 MR. MAJOR: FOR THE RECORD, IF WE GET INTO THIS
19 PROBLEM WHERE IT APPEARS WE'RE HAVING THIS DISCUSSION ABOUT
20 NO ONE HAS HAD ANY CONTACT WITH A LIVE PERSON HERE WE COULD
21 CALL MR. SUMKO BACK AND WE COULD GET INTO THAT AREA IF THAT
22 BECOMES A PROBLEM ON REBUTTAL.
23 THE COURT: WELL, FIRST OF ALL, I DON'T UNDERSTAND,
24 I MEAN, EVERY -- EVERY EXPERT WITNESS WHO HAS TESTIFIED, A
25 MEDICAL EXPERT WILL ALL -- WHO IS NOT A TREATER, WILL SAY
723
1 THE SAME THING. THE CROSS-EXAMINATION IS, YOU REALLY NEVER
2 SAW, ALL YOU'VE DONE IS LOOKED AT REPORTS.
3 MR. MAJOR: RIGHT.
4 THE COURT: AND THEN IT'S A MATTER OF ARGUMENT TO
5 THE JURY AS TO WHY SHOULD YOU BELIVE THE EXPERT, WHY SHOULD
6 YOU BELIEVE THE TREATER, WHY SHOULD YOU BELIEVE WHO, WHO
7 SHOULD YOU BELIEVE? SO I'M NOT GOING TO FORGO ANYBODY
8 TELLING ANYBODY HOW THEY CAN CROSS-EXAMINE. ALL I'M SAYING
9 IS IF YOU WANT TO SPEND TIME WITH THIS WITNESS ON THE
10 SUBJECT OF MORPHINE AND WHEN IT'S APPROPRIATE TO GIVE, I'M
11 NOT GOING TO HAVE THAT SAME TESTIMONY GIVEN FIVE OR SIX
12 TIMES. AND SO IF IT'S GIVEN WITH HIM AND THEN YOU HAVE FIVE
13 OTHER EXPERTS THAT ARE GOING TO TESTIFY ABOUT THE SAME
14 THING, HE MIGHT HAVE FOUR EXPERTS, I'M JUST NOT GOING TO
15 HAVE THE JURY HEAR IT FIVE OR SIX OR TEN TIMES.
16 MR. MAJOR: WELL, I -- AND JUST FOR THE BENEFIT OF
17 THE RECORD, I THINK WE HAVE THE RIGHT TO ANTICIPATE
18 CROSS-EXAMINATION AND TO DEAL WITH THAT. AND I JUST -- I
19 JUST LEAVE IT AT THAT FOR THE RECORD.
20 THE COURT: WELL, YOU HAVE THE RIGHT TO ANTICIPATE
21 CROSS-EXAMINATION AND YOU ALSO HAVE THE RIGHT OF REBUTTAL.
22 AND IF YOU HAVE TO HAVE THIS DOCTOR COME BACK OR ANY OTHER
23 DOCTOR COME BACK OR ANY OTHER WITNESS COME BACK, YOU HAVE
24 THE RIGHT OF REBUTTAL.
25 MR. MAJOR: WELL, THEN I GUESS MY PROBLEM IS IT'S
724
1 SUCH AN INCONVENIENCE TO HAVE THE DOCTOR HERE THE FIRST TIME
2 TO HAVE TO WAIT AND HAVE HIM COME BACK ON REBUTTAL WHEN WE
3 CAN HANDLE THE MATTER RIGHT HERE JUST SEEMS WORTH WHILE --
4 BUT I UNDERSTAND WHERE THE COURT IS COMING FROM AND WE'LL
5 WITHDRAW --
6 THE COURT: WELL, NO, HERE IS YOUR CHOICE. YOUR
7 CHOICE IS EITHER YOU CAN GO INTO THIS -- IF YOU WANT TO ASK
8 HIM ARE YOU FAMILIAR WITH MORPHINE AND IS MORPHINE A
9 NARCOTIC, YOU KNOW, THAT'S FINE, THEN YOU CAN ARGUE THIS
10 DOCTOR, YOU KNOW, DIDN'T GIVE NARCOTICS, HE DIDN'T DO THIS
11 AND WHY HE DIDN'T DO IT. HE'S ALREADY TESTIFIED TO THAT.
12 IF YOU WANT TO GO INTO THAT MORE, THAT'S FINE. I'M JUST
13 GIVING -- WHAT'S GOOD FOR THE GOOSE IS GOOD FOR THE GANDER.
14 IF MR. STIRBA AND HIS PEOPLE START CALLING SIX OR SEVEN
15 WITNESSES ON ONE ISSUE, I'M GOING TO SAY THE SAME STORY.
16 MR. MAJOR: THAT'S FINE.
17 THE COURT: SO WHATEVER YOU WANT TO DO, IF YOU WANT
18 TO ASK, ARE YOU FAMILIAR WITH MORPHINE, IS MORPHINE A
19 NARCOTIC AND HE'S ALREADY TESTIFIED HE WOULDN'T GIVE A
20 NARCOTICS TO A 91-YEAR-OLD WOMAN AFTER SURGERY, THAT'S FINE.
21 IF YOU WANT TO GO DEEPER INTO THAT, THE CONSEQUENCE OF GOING
22 DEEPER INTO THAT RIGHT NOW WILL MEAN THAT I'M NOT GOING TO
23 HAVE FIVE OR SIX OTHER PEOPLE TESTIFYING ABOUT THE SAME
24 SUBJECT SO WHATEVER YOU WANT TO DO.
25 MR. MAJOR: THAT'S FINE. WE WITHDRAW THE QUESTION,
725
1 YOUR HONOR, WE HAVE NO OTHER --
2 THE COURT: OKAY. LET'S GET THE JURY BACK IN. AND
3 I WOULD SUGGEST THAT BOTH OF YOU ARE THE FASTEST SPEAKERS IN
4 THE WORLD AND SMOKE IS RISING FROM THE COURT REPORTER.
5 (AN INFORMAL DISCUSSION WAS HELD OFF THE RECORD.)
6 (WHEREUPON THE JURY ENTERED THE COURTROOM.)
7 THE COURT: ALL RIGHT. PLEASE BE SEATED. THE
8 RECORD SHOULD REFLECT THAT ALL COUNSEL, THE DEFENDANT AND
9 THE JURY ARE ALL BACK IN THE COURTROOM. MR. MAJOR, I THINK
10 YOU WERE EXAMINING THIS WITNESS.
11 MR. MAJOR: YES, YOUR HONOR. WE HAVE NO FURTHER
12 QUESTIONS.
13 THE COURT: IS THERE ANY CROSS-EXAMINATION?
14 MR. STIRBA: YES, YOUR HONOR. THANK YOU. GOOD
15 AFTERNOON, DR. SUMKO.
16 THE WITNESS: AFTERNOON.
17 CROSS-EXAMINATION
18 BY MR. STIRBA:
19 Q. IT'S LATE IN THE DAY, BUT MAYBE YOU COULD HELP ME WITH
20 THIS HIP SURGERY THAT YOU DID AND WE'LL DO A LITTLE DRAWING.
21 THAT MIGHT BE A LITTLE BIT EASIER FOR EVERYBODY TO TAKE AT
22 THIS POINT.
23 A. OKAY.
24 Q. NOW, FIRST, DOCTOR, I WANT TO ASK YOU, YOU DID I THINK
25 YOU TESTIFIED YOU DID A HALF HIP REPLACEMENT; IS THAT RIGHT?
726
1 A. THAT'S CORRECT, HEMIARTHROPLASTY IT'S CALLED.
2 Q. PARDON ME?
3 A. HEMIARTHROPLASTY, THAT MEANS HALF A JOINT.
4 Q. OKAY. AND IF I UNDERSTAND IT, ONE OF THE THINGS YOU
5 WERE TRYING TO DO CERTAINLY WAS TO ESSENTIALLY MEND THIS
6 FRACTURE; IS THAT RIGHT?
7 A. NOT MEND THE FRACTURE. REPLACE THE PORTION THAT WAS
8 BROKEN BECAUSE THE MENDING WOULD NOT OCCUR.
9 Q. OKAY.
10 A. DO YOU WANT ME TO DRAW THAT?
11 Q. WE'RE GOING TO GET TO THE DRAWING NOW. I THINK WE'RE
12 READY. LET ME GET THIS OVER HERE FOR THE SO --
13 THE COURT: IF COUNSEL NEEDS TO MOVE OVER THERE,
14 PLEASE DO.
15 Q. (BY MR. STIRBA) I THINK THAT ONE WRITES PROBABLY
16 PRETTY WELL.
17 WHY DON'T YOU GO AND DRAW FOR THE FOLKS ON THE JURY
18 WHAT YOU NEED TO DO TO LET US UNDERSTAND THE OPERATION.
19 A. THIS REPRESENTS THE CUP OF THE PELVIS. THE FEMUR HAS A
20 HEAD ON IT, HAS A NECK, CONNECTS TO THE SHAFT, OKAY? THE
21 BLOOD SUPPLY TO THIS HEAD, THE REASON THIS BONE IS A LIVING
22 BONE IS BECAUSE THE BLOOD SUPPLY, THE MAJORITY OF THE HEAD
23 COMES IN THROUGH THE NECK. BIG BLOOD VESSELS COME IN
24 THROUGH THE FEMUR, BLOOD VESSELS GO TO THE HEAD AND THAT'S
25 WHY THAT BONE LIVES.
727
1 WHEN MRS. ANDERSON FELL, SHE FRACTURED THIS AREA.
2 ALTHOUGH THEY COULDN'T SEE IT ON THE X-RAY, THE FRACTURE WAS
3 PRESENT BUT GRADUALLY WITH TIME THAT FRACTURE BEGAN TO
4 WIGGLE AND MOVE, AND AS IT WIGGLED AND MOVED MORE AS SHE
5 WALKED ON IT, THIS FRACTURE BECAME COMPLETELY THROUGH AND
6 SUBSEQUENTLY THIS BALL ACTUALLY ROTATED A LITTLE BIT AND IT
7 WAS WHAT WE CALLED A DISPLACED FRACTURE MEANING THAT THIS
8 HEAD WILL NO LONGER LIVE. IT WILL DIE 99.9 PERCENT OF THE
9 TIME. I COULD FIX IT. I COULD THEORETICALLY PUT IT IN THE
10 RIGHT POSITION AND PUT SCREWS UP IN HERE AND HOLD IT
11 TOGETHER, BUT I WOULD WIND UP IN A FEW MONTHS GOING BACK AND
12 REPLACING THIS HEAD BECAUSE IT WOULD BE DEAD, NO BLOOD
13 COMING TO IT.
14 Q. AND THAT'S BECAUSE THERE'S A SEVERANCE OF THE BLOOD
15 SUPPLY AT THE FRACTURE POINT?
16 A. THAT'S CORRECT.
17 Q. ALL RIGHT. GO AHEAD, PLEASE.
18 A. SO WHEN THIS PARTICULAR TYPE OF FRACTURE IS REPLACED,
19 WHAT WE DO IS IS WE GO IN AS I DESCRIBED AND WE GO IN AND WE
20 MEASURE A CERTAIN DISTANCE FROM THIS LESSER TROCHANTER HERE
21 AND WE CUT IT OFF WITH A SAW NICE AND EVEN. AND THEN WE
22 PULL THIS OUT OF THE JOINT, SEND IT TO THE PATHOLOGIST, MAKE
23 SURE THERE'S NO TUMORS IN IT OR ANYTHING LIKE THAT AND THEN
24 WE REPLACE THIS WITH A METAL COMPONENT WHICH LOOKS JUST LIKE
25 THE ORIGINAL COMPONENT. THIS IS METAL AND IT GOES DOWN INTO
728
1 THE FEMUR DOWN HERE AND WE PUT CEMENT IN HERE AT THE SAME
2 TIME WHICH CEMENTS THIS SOLIDLY, IT DOESN'T MOVE, WE
3 RELOCATE IT BACK INTO THE PELVIS, WE SEW THE PATIENT UP AND
4 THAT'S THE OPERATION. DOES IT MAKE SENSE?
5 Q. IT DOES. IT'S HELPFUL CERTAINLY FOR ME TO SEE IT ON
6 THIS.
7 LET ME ASK YOU THIS: YOU SAID THE CEMENT WAS TOXIC?
8 A. IT CAN BE TOXIC. IT WILL ACTUALLY LOWER THE BLOOD
9 PRESSURE. WHEN WE PUT IT IN WE TELL THE ANESTHESIOLOGIST,
10 THE PERSON WHO IS CONTROLLING THE PATIENT'S RESPIRATIONS AND
11 VITAL SIGNS THAT WE'RE ABOUT TO PUT THE CEMENT IN, BECAUSE
12 WITH THE CEMENT YOU HAVE NO WAY OF CONTROLLING THE BLOOD
13 SUPPLY DOWN HERE. WHEN I FORCE THIS CEMENT IN, AS I PUT IT
14 IN AND PUT THE PROSTHESIS IN OVER WHILE IT DRIES, IT HAS
15 SOME CHEMICALS THAT ARE TOXIC ENOUGH TO LOWER THE PATIENT'S
16 BLOOD PRESSURE FOR A MINUTE OR TWO. AND IF THEY DO NOT HAVE
17 THE CARDIAC RESERVE TO COME BACK FROM THAT, THEY CAN DIE ON
18 THE TABLE AND THAT'S WHEN WE HAVE ONE OF THE PROBLEMS DURING
19 THE SURGERY IF THAT OCCURS.
20 Q. AND THE CEMENT ESSENTIALLY IS IN THE AREA HERE?
21 A. INSIDE THE CANAL OF THE FEMUR HOLDING THE CANAL TO THE
22 PROSTHESIS SO THERE'S A BOND HERE.
23 Q. I SEE. ABOUT HOW LONG DOES IT TAKE FOR THAT BOND TO
24 ACTUALLY FIX?
25 A. FIFTEEN MINUTES.
729
1 Q. SO AFTER 15 MINUTES IS THEN THIS ESSENTIALLY PROSTHESIS
2 OR APPARATUS SECURE --
3 A. TO THE BONE.
4 Q. -- WITHIN THE CANAL?
5 A. THAT'S CORRECT.
6 Q. AND SHOULD THERE BE AFTER THE SURGERY ANY MOVEMENT OR
7 PLAY WITH RESPECT TO THIS PARTICULAR APPARATUS?
8 A. IT'S A POSSIBILITY UNLIKELY TO OCCUR. WHEN IT OCCURS,
9 IF THERE WAS PLAY, IT WILL OCCUR AT SOME PERIOD DOWN THE
10 ROAD WHERE THERE SEEMS TO BE A LOOSENING THAT CAN OCCUR AND
11 WE DON'T KNOW WHY IT HAPPENS, BUT IN SOME PEOPLE THE CEMENT
12 LOOSES FROM THE BONE AND THE PROSTHESIS BEGINS TO ROTATE AND
13 TOGGLE AND THE PATIENT USUALLY COMPLAINS OF MID THIGH PAIN
14 WITH THAT PROBLEM. NOW THEY ARE NOT DISABLED, THEY ARE NOT
15 INCAPACITATED, BUT WHEN THEY WALK THEY HAVE THIGH PAIN.
16 NORMALLY AFTER THIS PROCEDURE, THEY'LL HAVE THIGH PAIN
17 FOR A FEW DAYS AND THEN THAT THIGH PAIN GRADUALLY FADES AWAY
18 AFTER SIX WEEKS. AND AFTER I SEE THEM AFTER SIX WEEKS IF
19 THEY ARE WALKING WITHOUT ASSISTANCE AND PAIN FREE, THIS KIND
20 OF TELLS ME CLINICALLY THAT THIS BONE HAS ACCEPTED THIS
21 CEMENT, THAT IT'S TOLERATED IT, IT'S NOT FORMED ANY SORT OF
22 MEMBRANE IN THE CEMENT TO PREVENT THE PROSTHESIS FROM BEING
23 SOLID.
24 Q. SO, IT'S TRUE, IS IT NOT, THAT IF YOU HAVE ESSENTIALLY A
25 SUCCESSFUL REPAIR, THAT PROSTHESIS SHOULD BE FIXED WITHIN
730
1 THE CANAL?
2 A. THAT'S CORRECT.
3 Q. AND THERE SHOULD NOT BE ANY MOVEMENT?
4 A. THAT'S CORRECT.
5 Q. ALTHOUGH THERE ARE TIMES WHEN OBVIOUSLY JUST BECAUSE OF
6 THE NATURE OF MEDICINE THE CEMENT DOES NOT ADHERE PROPERLY
7 OR WHAT HAVE YOU AND THEN YOU HAVE MOVEMENT WHICH WILL THEN
8 TYPICALLY SYMPTOMATICALLY CAUSE PAIN; IS THAT RIGHT?
9 A. YES.
10 Q. AND YOU ARE SAYING THAT THAT PAIN WOULD BE THE THIGH
11 AREA?
12 A. THAT'S CORRECT.
13 Q. AND TYPICALLY IN RESPONSE TO THAT PAIN THEN THE PATIENT
14 COMES BACK AND SAYS, GEE, DOC, I HAVE SOME PAIN AND YOU
15 THINK MAYBE THAT'S THE PROBLEM?
16 A. RIGHT. WE'LL TAKE X-RAYS AND USUALLY WE'LL SEE A RADIAL
17 LUCENT CLEAR LINE BETWEEN THE CEMENT AND THE BONE INDICATING
18 THAT -- THAT BLACK LINE INDICATES THAT THERE'S NOT A UNION
19 THERE, THAT THE BODY HAS REJECTED IT, CAUSED SOME SORT OF
20 LAYER OF FILM OR TISSUE TO GROW BETWEEN THE GLUE AND THE
21 BONE AND SUBSEQUENTLY THE PROSTHESIS IS NOW LOOSE.
22 Q. NOW ASSUMING -- ASSUMING THE UNION THAT THERE ISN'T A
23 UNION, RATHER, HOW IS THAT REPAIRED THEN?
24 A. NORMALLY WE'LL TAKE THE PROSTHESIS OUT, REAM THE CANAL
25 OUT FURTHER TO GET THE REST OF THE CEMENT OUT AND PUT EITHER
731
1 A LONGER OR A WIDER PROSTHESIS IN THERE. IF THEY ARE VERY
2 YOUNG, WE'LL PUT A PROSTHESIS THAT HAS PORUS -- A PORUS
3 COATING ON IT, A FILM OF SMALL BEADS, VERY MICROSCOPIC, 400
4 MICRON BEADS THAT WILL ALLOW THE BONE TO GROW INTO THOSE
5 BEADS WITHOUT THE USE OF CEMENT. OR IF THEY ARE AN ELDERLY
6 PATIENT WE'LL CEMENT ANOTHER ONE IN AN ATTEMPT TO GET THE
7 CEMENT TO ADHERE.
8 Q. NOW, DOCTOR, I WANT TO MAKE SURE EVERYBODY GETS CREDIT
9 FOR WHAT THEY DRAW IN THIS COURTROOM, SO WOULD YOU MIND JUST
10 PUTTING YOUR NAME ON THE DIAGRAM AND INDICATING THE DATE
11 AND, QUITE FRANKLY, I CAN'T HELP YOU, I'M NOT SURE I KNOW
12 THE DATE TODAY.
13 THE COURT: JUNE 13TH.
14 MR. STIRBA: GREAT, THANK YOU. YOU MAY RESUME THE
15 WITNESS STAND.
16 THE WITNESS: I THINK THIS IS...
17 MR. STIRBA: THANK YOU.
18 THE COURT: YOU MAY WANT TO MOVE THAT CHART SO THAT
19 THE JURORS CAN SEE IT.
20 MR. STIRBA: SURE, I'LL JUST MOVE IT OVER HERE.
21 GOOD POINT, YOUR HONOR.
22 Q. (BY MR. STIRBA) NOW, DOCTOR, YOU TESTIFIED THAT YOU
23 DID AN EXAMINATION BEFORE THE OPERATION; IS THAT RIGHT?
24 A. THAT'S CORRECT.
25 Q. AND CERTAINLY THE PURPOSE OF THAT WAS TO SEE WHETHER OR
732
1 NOT THERE WAS A PARTICULAR PROBLEM OR AILMENT OR MALADY SO
2 THAT THE OPERATION PERHAPS COULD BE POSTPONED OR THAT COULD
3 BE ADDRESSED; IS THAT FAIR?
4 A. THAT'S CORRECT.
5 Q. IT'S A CAUTIONARY PROCEDURE?
6 A. THAT'S CORRECT.
7 Q. NOW, WHEN YOU DID THAT EXAMINATION, DID YOU ATTEMPT TO
8 DETERMINE, FOR EXAMPLE, WHETHER MS. ANDERSON HAD ANY
9 CORONARY ARTERY DISEASE?
10 A. JUST -- EITHER THAN LISTENING TO HER CHEST AND WE A --
11 WE USUALLY DO AN E.K.G. ON THESE PATIENTS WE DO E.K.G. AND
12 CHEST X-RAY.
13 Q. AND DO YOU HAVE THE FINDINGS -- YOU HAVE SOME DOCUMENTS
14 IN FRONT OF YOU, IS THAT YOUR FILE?
15 A. THAT IS JUST -- THAT IS THE OUTPATIENT FILE. I HAVE
16 ADMISSION LABS ON HER. LET'S SEE, I DON'T THINK I WOULD
17 HAVE THE INPATIENT -- I WOULD NOT PROBABLY HAVE THE E.K.G.
18 OR CHEST X-RAY RESPONSES -- EXCEPT I DO. I DO HAVE THE
19 PORTABLE CHEST X-RAY WHICH WAS TAKEN PRIOR TO SURGERY.
20 THERE IS SOME CARDIOVASCULAR DISEASE PRESENT BECAUSE IT'S
21 READ BY DR. DUNN WHO INDICATES ATHEROSCLEROTIC VASCULAR
22 DISEASE ON THE CHEST X-RAY.
23 MR. STIRBA: MAY I APPROACH THE WITNESS, YOUR
24 HONOR?
25 THE COURT: YES.
733
1 Q. (BY MR. STIRBA) LET ME JUST SEE WHAT YOU BROUGHT WITH
2 YOU.
3 A. SURELY. THAT'S THE RADIOLOGY REPORT BY DR. DUNN
4 PREOPERATIVELY.
5 Q. IN FACT, I THINK WE MIGHT HAVE AN EASIER WAY OF JUST
6 LOOKING AT THIS AS YOU REFER TO THIS. JOHN, COULD YOU MOVE
7 THIS BACK INTO THE CORNER SOMEWHERE? WE HAVE A WAY OF
8 DISPLAYING IT SO EVERYBODY COULD SEE IT, PERHAPS THAT MIGHT
9 BE A LITTLE BIT HELPFUL HERE.
10 NOW, THIS IS THE CHEST X-RAY THAT YOU HAVE REFERRED TO,
11 IS THAT RIGHT, OR THE REPORT OF IT?
12 A. THAT'S CORRECT.
13 Q. AND IT DOES SAY DOWN THERE UNDER IMPRESSION
14 ARTERIOSCLEROTIC VASCULAR DISEASE, IS THAT WHAT YOU ARE
15 REFERRING TO AS --
16 A. THAT'S CORRECT.
17 Q. THAT'S BASICALLY CORONARY ARTERY DISEASE?
18 A. THAT'S CORRECT.
19 Q. AND THAT'S A FINDING THAT WAS MADE IN RESPONSE TO THIS
20 CHEST X-RAY; IS THAT RIGHT?
21 A. THAT'S CORRECT.
22 Q. IT'S TRUE, IS IT NOT, THAT THE CHEST X-RAY IS SOMEWHAT
23 OF A CRUDE WAY OF MEASURING THAT PROBLEM?
24 A. THAT IS CORRECT, BECAUSE IT WILL NOT SHOW EARLY
25 CARDIOVASCULAR PROBLEMS BUT YET IT WILL SHOW SOMEWHAT
734
1 ADVANCED PROBLEMS.
2 Q. SO IN AS MUCH AT LEAST AS YOU HAD THIS AS A TOOL, YOU AT
3 LEAST MADE THAT DETERMINATION CONCERNING HER CARDIAC SYSTEM
4 AND FUNCTIONING; IS THAT RIGHT?
5 A. THAT'S CORRECT.
6 Q. HOW ABOUT WITH RESPECT TO ANY PULMONARY COMPLICATIONS,
7 FOR EXAMPLE, SOMETHING IN THE NATURE OF A FIBROSIS?
8 A. A PULMONARY FIBROSIS?
9 Q. YEAH.
10 A. AGAIN, IN ADVANCED STAGES, I WOULD THINK, AGAIN, I'M NOT
11 A RADIOLOGIST AND I'M NOT A PULMONOLOGIST, BUT USUALLY YOU
12 BEGIN TO SEE SOME OF THOSE CHANGES IF THEY ARE ADVANCED ON
13 THE X-RAY, FIBROTIC CHANGES IN THE LUNGS.
14 Q. BUT OTHER THAN THE CHEST X-RAY, WAS THERE SOME OTHER
15 TOOL THAT YOU MIGHT HAVE USED TO DETECT WHETHER OR NOT THERE
16 WAS SOME KIND OF PULMONARY OR BRONCHIAL PROCESS, DISEASE
17 PROCESS WITH MS. ANDERSON?
18 A. WELL, WHEN YOU LISTEN WITH THE STETHOSCOPE, I MEAN,
19 THAT'S OBVIOUSLY THE GROSS ABNORMALITIES ARE HEARD. AGAIN,
20 IN EARLY STAGES OF DISEASES YOU MAY NOT HEAR ANYTHING WITH A
21 STETHOSCOPE. BUT NORMAL BREATH SOUNDS WOULD INDICATE TO YOU
22 THAT GENERALLY THE PATIENT IS MOVING AIR AND THAT THERE IS
23 NO ESSENTIAL OBSTRUCTION.
24 Q. CAN YOU TELL ME WHAT, FOR EXAMPLE, PERIBRONCHIAL
25 FIBROSIS IS?
735
1 A. PERIBRONCHIOLAR FIBROSIS?
2 Q. YES.
3 A. USUALLY MEANS THAT THERE IS THE CONNECTIVE TISSUE AROUND
4 THE BRONCHI WHICH ARE THE MAIN STEM CHANNELS OF AIR INTO THE
5 LUNGS ARE FIBROTIC AND HARD AND LESS RESPONSIVE TO THE
6 MUSCLES THAT SURROUND THEM AS FAR AS BREATHING IS CONCERNED.
7 WHEN I TAKE A DEEP BREATH, MY BRONCHIAL TUBES OPEN WIDE
8 TO GET ALL THE OXYGEN AS POSSIBLE. WHEN YOU HAVE BRONCHIAL
9 FIBROSIS, THE BRONCHIOLES AREN'T AS RESPONSIVE. YOU COULD
10 TAKE A DEEP BREATH AND AS A RESPONSE, THE AIR HAS TO GO
11 THROUGH A NARROWER TUBE BECAUSE IT'S NOT RESPONDING AS WELL,
12 IT'S FIBROTIC, AND SUBSEQUENTLY, THEY DON'T MOVE AIR AS
13 RAPIDLY. THAT COULD BE HEARD ON THE STETHOSCOPE. YOU COULD
14 HEAR THE AIR -- A PERSON TRYING TO TAKE A DEEP BREATH AND
15 THE AIR GOING THROUGH A SMALLER TUNNEL FASTER THAN THROUGH A
16 PERSON WHO HAS A NICE WIDE OPEN BRONCHIOLES, SO THAT'S
17 SOMETHING THAT WOULD BE A CLINICAL EXAM WITH INSPIRATION AND
18 RESPIRATION BASICALLY.
19 Q. AND CAN YOU TELL US HOW THAT TYPICALLY WOULD BE
20 DIAGNOSED AS A CONDITION --
21 MR. MAJOR: YOUR HONOR, I HATE TO OBJECT, WE'RE
22 TRYING TO GET THROUGH THIS, I KNOW, BUT THIS IS AN
23 ORTHOPEDIC SURGEON. HE'S NOT AN EXPERT IN THIS FIELD. WE
24 WERE LIMITED ON HIS PAIN EXPERT, WE OBJECT TO THE FACT THAT
25 HE IS NOT AN EXPERT AND HE SHOULDN'T BE TESTIFYING.
736
1 MR. STIRBA: I'LL WITHDRAW THE QUESTION, YOUR
2 HONOR, THAT'S FINE.
3 Q. (BY MR. STIRBA) LET ME SHOW YOU THE FILE AGAIN JUST SO
4 WE'RE CLEAR HERE, DOCTOR, AND MAYBE YOU CAN JUST FLIP
5 THROUGH THERE AND JUST GENERALLY TELL US WHAT YOU HAVE.
6 A. SURE. THIS IS A -- THIS SHEET IN PARTICULAR IS A SHEET
7 WHICH IS CODED BY SOMEONE IN THE RECORDS ROOM WHO BASICALLY
8 GOES THROUGH AND MAKES EVIDENCE OF EACH OF THE DIAGNOSES OR
9 MAKES A LIST OF EACH OF THE DIAGNOSES AND GIVES THEM A CODE
10 THAT THE PATIENT HAS WHILE THEY ARE IN THE HOSPITAL. SUCH
11 AS MY PARTICULAR DIAGNOSIS THAT REFERS TO WHAT I DID IS
12 CLOSED FRACTURE FEMORAL NECK UNSPECIFIED AND THEY GIVE IT A
13 CODE OF 8208.
14 AND THEN IT CONTINUES DOWN THROUGH THIS. ACUTE
15 POSTHEMORRHAGIC ANEMIA MEANT THAT I DID A HEMATOCRIT THE DAY
16 AFTER SURGERY WHICH CHECKS THE LEVEL OF THEIR BLOOD, AND I
17 HAVE LOST SOME BLOOD DURING SURGERY WHICH IS NORMAL, AND HER
18 HEMATOCRIT WAS A LITTLE LOW SO THEY CALLED IT A
19 POSTHEMORRHAGIC ANEMIA, WHICH IS APPROPRIATE. SHE DOESN'T
20 HAVE THE SAME BLOOD LEVEL THAT SHE CAME IN WITH OF RED BLOOD
21 CELLS BECAUSE I TOOK SOME OF THEM OUT OF THERE WHEN I DID
22 THE SURGERY.
23 Q. YOU DON'T HAVE TO GO THROUGH EVERY ONE. I'M JUST
24 INTERESTED IN JUST GENERALLY WHAT YOUR FILE CONTAINS. I'M
25 ASSUMING YOU WERE ASKED TO BRING THAT WITH YOU TODAY?
737
1 A. WELL, I WASN'T ASKED TO BRING IT. I BROUGHT IT BECAUSE
2 AFTER FIVE YEARS IT WAS DIFFICULT FOR ME TO REMEMBER
3 EVERYTHING ABOUT THIS PATIENT.
4 Q. IS THIS SOMETHING THAT IF WE COPIED AFTER-HOURS AND
5 RETURNED THE ORIGINAL TO YOU, WOULD THAT BE A PROBLEM SO WE
6 COULD MAKE IT AN EXHIBIT IN THIS COURT PROCEEDING?
7 A. NO PROBLEM AT ALL.
8 MR. STIRBA: YOUR HONOR, WE WOULD OFFER BASICALLY
9 THE DOCTOR'S FILE, MAKE A COPY OF IT AS D-3.
10 THE COURT: OKAY. IS THERE ANY OBJECTION TO D-3?
11 MR. MAJOR: WELL, YOUR HONOR, WE'RE JUST A LITTLE
12 CONCERNED ABOUT THE FACT THAT WE'RE GETTING SO MANY
13 DOCUMENTS HERE, IT'S GOING TO BE SO CONFUSING FOR THE JURY
14 AND OVERWHELMING FOR THE JURY TO KNOW WHAT'S WHAT. I DON'T
15 SEE ANY NEED FOR IT. HE'S TESTIFIED FROM IT, WE'RE NOT
16 GOING TO BE RECALLING HIM BACK, THERE'S GOING TO BE NO
17 ADDITIONAL TESTIMONY FROM IT. IF WE HAVE ADDITIONAL NOTES
18 IN THERE THAT WE HAVEN'T TESTIFIED TO, I DON'T THINK THEY
19 ARE RELEVANT TO BE PUT INTO THIS CASE AT THIS TIME SO WE
20 WOULD OBJECT TO IT AT THIS TIME.
21 THE COURT: BASED UPON THAT IF IT'S COPIED JUST
22 WHAT THE DOCTOR'S FILE IS, D-3 WILL BE RECEIVED.
23 MR. STIRBA: THANK YOU, YOUR HONOR. THAT'S ALL.
24 THANK YOU, DOCTOR.
25 THE COURT: IS THERE ANY FOLLOW-UP WITH THIS
738
1 WITNESS?
2 MR. MAJOR: WE HAVE NONE, YOUR HONOR.
3 THE COURT: OKAY. MAY HE BE EXCUSED?
4 MR. MAJOR: HE MAY BE EXCUSED, YOUR HONOR.