Perry Fine, MD
5 MR. BUGDEN: Call Dr. Fine.
6 THE COURT: Doctor, step up please. If you would
7 raise your right hand and face the clerk she'll place you
8 under oath.
9 DR. PERRY GORDON FINE,
10 being first duly sworn, was examined and
11 testified as follows:
12 THE COURT: Step up here, please. If you will state
13 your name and spell the last name.
14 THE WITNESS: My name is Perry Gordon Fine, F-i-n-e.
15 DIRECT EXAMINATION
16 BY MR. BUGDEN:
17 Q. Can you tell us where you were last night?
18 A. Actually, last night I was in San Diego. And I apologize
19 for keeping people waiting. I took the first flight back I
20 could this morning.
21 Q. What time did you have to get up to be here today?
22 A. 4:00 a.m.
23 Q. Thank you. Dr. Fine, you'll find a comfortable zone for
24 you to keep your mouth in relationship to that microphone,
25 but we want you to keep your voice loud enough so that
1 certainly the jury can hear and also the state's lawyers and
2 everyone. We'll both pay attention to that.
3 You're a medical doctor, is that right?
4 A. That's correct.
5 Q. Where did you go to medical school?
6 A. I graduated from the Medical College of Virginia in
7 Richmond, Virginia.
8 Q. If you get much closer to that microphone it gets
9 gravelly for some reason. Are you Board certified?
10 A. Yes, I'm Board certified in anesthesiology with added
11 qualifications in pain management. And I'm Board eligible in
12 hospice and palliative medicine.
13 Q. Maybe you've just told us this, but your areas of
14 specialization, then, are?
15 A. Anesthesiology, pain management and end of life care.
16 Q. Where do you work today, Dr. Fine?
17 A. My main work is at the University of Utah where my
18 clinical practice is. I'm also involved in the teaching of
19 medical trainees at undergraduate and post-graduate levels,
20 where I also carry on research activities and some
21 administrative duties. And then a fair balance of my time is
22 spent working with a Vista Care, which is a national hospice
23 provider.
24 Q. And hospice is what?
25 A. Hospice is a standard, if you will, for comprehensive
1 care for patients with limited life expectancy.
2 Q. Dr. Fine, do you sit on any professional -- any boards of
3 any professional organizations?
4 A. Yes. I work in several capacities for mostly national
5 organizations. I chair the ethics committee for the National
6 Hospice and Palliative Organization.
7 Q. I'll ask you to be just a little bit louder. Is this one
8 that you just told us about?
9 A. It's hard for me to see that from here.
10 THE COURT: You can slide your chair over if you need
11 to, Doctor.
12 THE WITNESS: I'll stand up if I can.
13 THE COURT: Sure.
14 Q. (BY MR. BUGDEN) the question was whether or not you sit
15 on any boards of any professional organizations?
16 A. I sit on several things. I'm very busy in this sort of
17 professional area. The first answer was I chair the ethics
18 committee for the National Hospice and Palliative Care
19 organization, which is the organization involved in trying to
20 make improvements in clinical care of patients with advanced
21 illnesses. The other -- I'll just sort of stay with the
22 national organizations. The other major activity is I'm
23 involved in a program director for the American Academy of
24 Hospice and Palliative Medicine, which is the physicians
25 specialty group for physicians who specialize in this area of
1 care. I serve on the intermediary advisory committee for the
2 Palmetto benefits administration, which is the intermediary
3 for Medicare that covers all nursing home and hospice
4 services.
5 Q. I'll ask you about a few. I think there should be a
6 heading that is entitled part-time physician consultancies.
7 What does it mean for a stint as chairman of the quality
8 review committee, Utah peer review?
9 A. For those three years, the Utah peer review, which
10 they've changed their name subsequently, but that was the
11 organization that reviewed all Medicare beneficiaries,
12 reviewing the appropriateness and quality of care for people
13 who were Medicare beneficiaries, which is essentially
14 virtually everybody over age 65 in the state of Utah.
15 My job was to oversee the committee that evaluated how
16 well care was being delivered in our state for that population
17 of patients. So that had to do with investigating and
18 looking at standards of care and developing guidelines, that
19 sort of thing.
20 Q. Dr. Fine, do you have any particular training or
21 background in end of life care?
22 A. Well, when I began my involvement focusing in end of life
23 care, it was early in the 1980s, when Medicare was just
24 developing the hospice benefit. Prior to that time there
25 really was no formalized programs in end of life care in the
1 United States. I began working as a medical director. In
2 fact, the first one in the state, working with community
3 nurse services, which is CNS, that gives a whole range of
4 services for folks in this state. That was really the first
5 foray into organizing an approach towards providing end of
6 life care. That dates back to the 1980s.
7 Q. I - would it be fair to say that you're one of the pioneers
8 in the state of Utah in that, in the medical community?
9 A. I like the word pioneer, so I guess I'll use it to
10 describe myself.
11 Q. Doctor, have you written any articles that pertain to the
12 care of patients like the patients in this case?
13 A. Yes, I've written extensively in this area. It's been my
14 main area of educational writing and research writing in the
15 last ten years. Probably the first half of my career was
16 more pain management oriented and I also was involved in some
17 research in that. But I shifted my focus in possibly the mid
18 90's on.
19 Q. Okay. Are there some particular articles that have a
20 particular application to the issues that we'll be discussing
21 that you've written, Doctor?
22 A. There's studies on pharmaceutical studies, looking at
23 what are called clinical trials to develop brand new drugs to
24 improve upon some of the older drugs to treat pain and
25 symptoms that are associated with patients with advanced
1 illnesses.
2 Q. The jury knows what fentanyl is. Tell us about this
3 article or this study that you did?
4 A. That was the first clinical trial of a new drug delivery
5 system for fentanyl and it was found to be of significant
6 improvement over some more traditional oral drugs in the
7 treatment of cancer pain and other forms of pain. This was a
8 noninvasive way of delivering the drug so you didn't have to
9 inject people.
10 Q. And what was the way?
11 A. It looks like actually a lozenge on a stick, or a
12 lollipop. By sucking on this the drug immediately goes into
13 the blood stream through the lining of the mouth. That is
14 then ingested or absorbed through the gastro-intestinal
15 system and it allows almost the same effect as a shot but
16 without having to give an injection.
17 Q. Am I correct, and this is probably stating the obvious,
18 but for that particular delivery system the patient has to be
19 able or willing to take things by mouth?
20 A. Sure. This has to be a patient who is very cooperative
21 and able to -- and this is so people can in fact manage their
22 pain at home and improve their quality of life by being at
23 home and control their lives when they have significant pain.
24 Q. Can you tell us about this article that you wrote in
25 1992, anesthesiology and the discipline of medical ethics?
1 A. I'd been working to review all of this. This was an
2 attempt to integrate medical ethics, and especially areas
3 around pain management, end of life care, into the field of
4 anesthesiology, which sort of started to emerge out of the
5 operating room in the early 1990s in order to address the
6 needs and problems of patients, very much like we're
7 discussing in this case.
8 Q. Can you tell me about this article?
9 A. That article, that was a research study that was done
10 with -- in cooperation with the university nursing service
11 looking at the incidence of a type of pain called break through
12 pain that had heretofore -- just begun to be recognized in a
13 number of types of patients. It had never been studied at
14 all in patients with progressive illness and near death, in
15 the last several months, weeks of their lives. So this was
16 the first attempt to develop a survey, a type of tool, that
17 nurses and physicians can use with patients; and also a
18 patient's family can get a handle on how much pain they
19 actually may be experiencing.
20 Q. What about this 1998 article, number 36, a time to
21 reevaluate care of the dying, a call to action. Tell us
22 about that.
23 A. That was a recognition at that point, starting about
24 1995, it really is the very first time that literature starts
25 to emerge in this country looking at how people actually, in
1 our country, die, which is really sort of an amazing thing.
2 The last studies that had ever been done evaluating the way
3 in which people in America die was a hundred years ago by
4 William Mosley, a pioneer in medicine. Then a whole century
5 went by and nobody ever really stood still and studied and
6 understood how it is that we leave -- confront the end of our
7 lives. That's what that article was based on.
8 Q. I'll ask you about probably three more articles and then
9 we'll go on. Article 46, please. Can you -- is it possible
10 to scroll up? Okay.
11 Doctor, as relates to talking about pain and the pain of
12 the demented population, is that something that you have
13 studied and have written articles on pain in the cognitively
14 impaired adult?
15 A. That article you pointed out, number 46, is a review of
16 exactly that. How it is that we can in fact evaluate pain
17 and the behavioral disturbances that that pain can cause in
18 people who can't self-report. They have a dementing illness
19 and can't verbalize. Sort of like with preverbal children.
20 How do we assess and evaluate how kids who can't express
21 themselves have pain. This was the opposite end of that life
22 spectrum.
23 Q. This is the last question on this topic. The jury has
24 heard a number of witnesses that the treatment of pain or the
25 use of opioids, or of any drug in the older population, is
1 something that requires special attention. Have you written
2 articles about that, studied the use of opioids and
3 analgesics in the geriatric population?
4 A. This is a particularly strong interest of mine. We began
5 to recognize how prevalent pain, untreated pain was, and the
6 consequences of untreated pain, which actually would promote
7 morbidity. For actually it could prematurely lead to the end
8 of people's lives. Pain was not a benign symptom, but in
9 fact a problem that could affect not only the quality of
10 people's lives, but could kill earlier. So the knowledge of
11 how to use analgesics effectively was extraordinarily
12 important in the last half of the 1990s and continues on
13 today.
14 Q. Have you been involved in creating the standards of care
15 of assessment and management of pain in patients like the
16 patients we'll talk about today?
17 A. Yes. In 1997 the American Geriatric Society, which is
18 the professional organization that is the advocacy group for
19 older people - usually we mean by that over age 65 - they
20 commissioned a task force which I was selected to serve on.
21 We were to create clinical guidelines for the management of
22 pain in older patients. That was published in 1998. And
23 then we did a revision of that in 2000 and 2002, because the
24 evidence and the amount of scientific studies had developed
25 so rapidly in that period of time.
1 Q. So is it fair to say that you've been involved in
2 creating the standards of care at a national level for the
3 whole country?
4 A. That's correct.
5 Q. If you would retake your seat, Doctor.
6 A. (Witness complied.)
7 Q. Dr. Fine, would you tell the jury how you first became
8 involved in this case?
9 A. I am in practice at the University of Utah pain
10 management center. One of my partners is Brad Hare. Brad
11 approached me one day and asked if I would be willing to work
12 with himself and the prosecutors, Mr. Wilson and his
13 colleagues, in a criminal case involving a physician who was
14 charged with several cases of homicide. That was sort of the
15 first conversation.
16 Q. And that's this case, Dr. Weitzel's case?
17 A. Yes.
18 Q. And can you tell me, what's the nature of your prior or
19 ongoing relationship with Dr. Brad Hare?
20 A. Well, Dr. Hare, Brad, has been a friend for many years,
21 over 20. We still remain good friends and we've been very
22 close colleagues and partners in practice since I came to the
23 University of Utah.
24 Q. And after speaking with Dr. Hare, when he asked whether
25 or not you would, I guess, review this case, were you in fact
1 contacted by the very prosecutors in this case?
2 A. Actually, the attorney who contacted me is not here. Her
3 name is Betsy Bowman. I can't remember if I called her back
4 or she called, but a phone call took place and she
5 essentially reiterated --
6 THE COURT: Just back off a little. You're getting
7 to much feedback on the microphone.
8 THE WITNESS: She stated that Dr. Hare --
9 Q. (BY MR. BUGDEN) All I need is whether or not you were
10 contacted by the prosecutor's office and did talk to them?
11 A. Yes.
12 Q. Okay. Thank you. And now I'd like to ask you a couple
13 of questions about Dr. Hare's background and your own
14 professional background. Are you familiar with Dr. Hare's
15 background and his training?
16 A. Yes, I am.
17 Q. And is there anything different in a significant way
18 between his background and your background, Dr. Fine?
19 A. Well, probably the departure started in my fellowship
20 training, which was in Toronto where I was involved in
21 pallitive care services because of its ties with the British
22 Commonwealth medical system, which developed palliative
23 care before we did here in the U.S. So I brought some of
24 that training and experience to the University of Utah with
25 me in developing the pain management services. And as I said
1 earlier, fairly quickly on I took on the role of developing
2 hospice and end of life care programs here in Utah. That's
3 probably the most significant point of departure.
4 Q. Does Dr. Hare have any of that end of life care for
5 patients with advanced diseases? Is that one of his areas of
6 specialization?
7 A. No.
8 Q. Dr. Fine, would you expect an expert in any field of
9 medicine to have a fund of knowledge based on more than just
10 simply --
11 MS. BARLOW: Objection. Leading.
12 THE COURT: Sustained.
13 Q. (BY MR. BUGDEN) What makes someone an expert, in your
14 mind, in any area of medicine, Dr. Fine?
15 A. Probably several components. First would be education
16 and training. The next would be extensive experience. And
17 with that comes a reputation of being a leader in that
18 particular area, either in the community or region or
19 nationally. The capacity to educate and train others in that
20 field, the qualifications to be a mentor for others. And
21 probably lastly, or maybe a couple of other things, actually.
22 Certainly research and developing innovative and creative
23 improvements in that field. I think probably lastly would be
24 serving in leadership capacities in those organizations that
25 recognize and select you for your expertise.
1 Q. What about familiarity with literature in the field, is
2 that important to someone that calls himself an expert?
3 A. Yes. That was so obvious I skipped over it. The fund of
4 knowledge, that's how one cuts one's teeth is by knowing what
5 the fund of knowledge is in the particular field.
6 Q. And is there a body of literature in this field, end of
7 life care and care of patients with advanced dementing
8 illness, that supports the opinions you're going to share
9 with the jury?
10 A. Yes. Actually there's quite extensive literature.
11 Q. Now, you did review the medical charts in this case years
12 ago when you were asked to do so by the prosecutors, is that
13 right?
14 A. That's correct.
15 Q. And did you form any opinions back then about the
16 appropriateness of the treatment that Dr. Weitzel gave to
17 these five patients?
18 A. Yes, I did.
19 Q. And did you share your opinions with the prosecutors?
20 A. Yes, I did.
21 Q. And where did the -- when you did talk to the prosecutors
22 and express your opinion, actually where did that
23 conversation take place?
24 A. That took place in my home.
25 Q. Okay. And then after you had had an opportunity to talk
1 to the prosecutors about your opinions, did there come a time
2 that you spoke to Brad Hare about his opinion and your
3 opinion?
4 A. We probably had a couple of fairly brief conversations
5 after I met with the attorneys and disclosed my findings.
6 Q. And were your findings different from Dr. Hare's back
7 then?
8 A. They were completely different, actually.
9 Q. And can you remember what you and Dr. Hare discussed in
10 any of those conversations when you did discuss your
11 difference of opinions?
12 A. I let him know that my conclusions were very different
13 from what he had expressed to me were the concerns when he
14 initially invited me into the case. And I felt that --
15 MS. BARLOW: I think I'm going to object. I don't
16 know that --
17 MR. BUGDEN: That's fine. I'll just move on.
18 MS. BARLOW: The fact that they're different is
19 relevant was going to be the objection.
20 THE COURT: Sustained.
21 Q. (BY MR. BUGDEN) Can you describe in a general way, and
22 we'll ultimately become more specific, but can you describe
23 for us in a general way the medical condition of the five
24 patients upon their admission at the Davis Hospital, Dr.
25 Fine?
1 A. Generally I would characterize all of them as extremely
2 ill with far advanced and serious dementing illness. And all
3 of them had several other significant medical disorders and
4 problems.
5 Q. Do you believe that these patients were in, and the jury
6 has heard this phrase now, a terminal condition when they
7 were admitted to the hospital?
8 A. Yes. I think it's fair to say they were all terminally
9 ill upon admission to the geropsych unit.
10 Q. And so that we are all using the same terms, what does
11 the phrase, as a physician, what does the phrase terminal
12 condition mean?
13 A. There's only one operational definition that is used.
14 That is in fact the eligibility criteria established by
15 health and human services for admission to a hospice program,
16 which defines terminal illness as one having a life
17 expectancy of six months if the disease runs its usual and
18 anticipated course.
19 Q. Do you believe that any of these patients had a curable
20 condition? Was their dementia curable?
21 A. No.
22 Q. Was there anything that you believe could have put their
23 disease process into remission, their dementia into
24 remission?
25 A. No.
1 Q. And do you have an opinion, Dr. Fine, based on your
2 experience with pain and the recognition of pain in the
3 elderly population, do you have and opinion, to a reasonable
4 degree -- to a degree of reasonable medical certainty,
5 whether these patients were experiencing pain when they were
6 in the geropsych unit at the Davis Hospital? You can answer
7 that first, if you have the opinion, yes or no. Do you have
8 and opinion?
9 A. Yes, I do.
10 Q. And what is your opinion, Dr. Fine?
11 A. My findings, in reviewing all of the medical documents,
12 including those that preceded their admission to the Davis
13 Hospital, geropsych unit, was that they all had medical
14 conditions that very typically do cause significant pain.
15 And either voiced that themselves or had the very
16 stereotypical behaviors that we now recognize very clearly
17 are indicative of pain.
18 Q. And so based on the underlying medical conditions that
19 are frequently pain producers, and then the symptoms of pain
20 that were identified in the medical charts, from those two
21 things taken together do you have an opinion, to a reasonable
22 degree of medical certainty, whether they were in pain?
23 A. I'm quite certain that these patients were experiencing
24 what you and I would voice as pain.
25 Q. Thank you. Do you believe it was reasonable and whether
1 or not it met the standard of care for Dr. Weitzel to treat
2 these people for their symptoms of pain?
3 A. I would say not only did it meet the standard of care, it
4 was a medical necessity and an obligation, a duty.
5 Q. And the jury has heard questions suggesting that these
6 patients were admitted for psychiatric purposes. All of them
7 were admitted for their agitation, combativeness,
8 aggressiveness, that they really were not admitted to the
9 geropsych unit for --
10 MS. BARLOW: Objection. This is leading, Your
11 Honor.
12 THE COURT: It is, but it's in the form of a
13 hypothetical question. He can ask it that way. You may want
14 to form it as a hypothetical.
15 Q. (BY MR. BUGDEN) Well, if these patients were admitted to
16 the hospital for psychiatric purposes and for treatment of
17 the dementing illness and the behaviors that are associated
18 with dementing illnesses, agitation, combativeness,
19 aggressiveness, but if those patients had symptoms of pain
20 because they were -- hypothetically because a patient is
21 received for treatment of agitation, would that for some
22 reason mean that the physician shouldn't treat the symptoms
23 of pain when they present themselves?
24 A. No, of course not. We don't admit their brains only to
25 the unit, we admit the whole person. It's the obligation of
1 a physician, no matter what kind of health care facility
2 someone is admitted to, to evaluate the person and to treat
3 the person.
4 Q. Thank you. Is morphine -- am I right that as an
5 anesthesiologist you have used morphine in your practice?
6 A. Extensively.
7 Q. And do you also use morphine in the treatment of pain in
8 the older population, Dr. Fine?
9 A. Quite commonly, yes.
10 Q. And do you use opioid therapy, morphine, to treat the
11 demented population with symptoms of pain?
12 A. Yes.
13 Q. And in 1995 do you have an opinion, to a degree of
14 reasonable medical certainty, whether or not it would meet or
15 breech the standard of care for a physician to decide to use
16 morphine to treat the five patients that you've testified
17 that you believe did suffer from pain back in 1995, 1996?
18 A. That was certainly an acceptable practice and by
19 definition met the standard of care, yes.
20 Q. Thank you. In a general way, there came a time when the
21 chart notes suggest, in Dr. Weitzel's care of these patients,
22 that end of life care was provided to these patients. Would
23 you agree with that?
24 A. Yes.
25 Q. Or at least, with the exception of Ellen Anderson, the
1 other four patients, that would be the case?
2 A. Yes.
3 Q. And in 1995, 1996, if a physician was providing end of
4 life comfort care, do you have an opinion, to a degree of
5 reasonable medical certainty, whether it would be appropriate
6 to use the dosages of morphine that Dr. Weitzel used to
7 achieve that medical goal?
8 A. Sure. There was nothing surprising about the doses that
9 were administered.
10 Q. Okay. Does dementia differ from delirium, Dr. Fine?
11 A. Dementia is usually considered a progressive chronic
12 disease process. Delirium is usually viewed as an acute
13 alteration of a mental status. However, they can occur
14 together and it's not uncommon that dementia progresses in
15 it's final end stage to a delirious state as the brain
16 function deteriorates significantly.
17 So, they can occur together, they can occur
18 independently, but it's not uncommon that in many disease
19 states, in the final few days to weeks of life, delirium
20 becomes actually one of the hallmarks, one of the cardial
21 manifestations of the dying process.
22 Q. This is a slightly different variation on the delirium --
23 the issue of delirium, but do you have an opinion about
24 whether or not these patients were suffering from a delirium
25 because of being overmedicated on psychotropic medications?
1 A. That would be extremely unlikely. In reviewing their
2 histories, there was really very little evidence of that. In
3 fact, probably on the contrary, they probably required, in
4 fact did require, very vigorous treatment because of the
5 seriousness of their mental condition.
6 Q. And is dementia a life limiting condition that has a
7 terminal phase?
8 MS. BARLOW: Objection, Your Honor.
9 THE COURT: It is leading. Sustained.
10 MS. BARLOW: Thank you.
11 Q. (BY MR. BUGDEN) Does dementia have a terminal phase?
12 A. Yes, it does, universally.
13 Q. Are there any articles you're familiar with, Dr. Fine,
14 that have talked about whether dementia has a terminal phase?
15 A. Umm, yes. I collected some literature just to sort of
16 support this, so you don't think I'm just sort of idly
17 opining here. A recent review in the New England Journal of
18 Medicine evaluated the life expectancy of people with a
19 diagnosis, a new diagnosis, of Alzheimer's Disease. And also
20 the other main type of dementia, which some of these patients
21 had as well, which is called a multi-infarct dementia, where
22 the vascular blood supply to the brain is a problem.
23 It was thought, prior to this extensive review, that the
24 life expectancy of most people with Alzheimer's type
25 dementia, for instance, was about eight to 12 years. A very
1 long, slow, progressive disease. At it turned out it's much
2 more rapid. Most patients with dementing illness do die
3 within about three years of the onset of the disease. It's a
4 much more progressive disease than we used to think.
5 Q. How does a patient with dementia die?
6 A. There are many sort of routes or sort of final --
7 MS. BARLOW: I object. This is cumulative. We've
8 had other witnesses testify.
9 THE COURT: Overruled. Go ahead.
10 THE WITNESS: The final common pathway, if people
11 live long enough to the end stage of the disease, usually is
12 a result of the inability to control secretions, to be able
13 to protect your airway, and the accumulation of clear fluids
14 from the lungs and so on. Pneumonia is very common. The
15 other probably most common cause would be a total body
16 infection, so-called sepsis. Usually the route is through
17 the urinary tract.
18 But as the brain loses its ability to control body
19 functions, most of the body functions similarly deteriorate
20 just like a brain and thought processes do. So there are a
21 myriad of ways that people can in fact die, but those are
22 probably the two most common.
23 Q. The jury has heard from a number of family members that
24 perceived that their loved one, whether it be Mr.
25 Alldredge -- well, not really him as much, but other family
1 members have testified, Mary Crane, Ellen Anderson, that
2 their mother appeared very anxious and was suffering
3 mentally, had agitation and what have you, but that the
4 family perceived that physically they were healthy.
5 Is there somehow a difference between the brain's mental
6 functioning and cognitive functions and the brain's
7 interaction or control of the rest of the body systems?
8 A. Well, they are intimately involved. Some patients will
9 in fact progress in their dementia and cognitive impairments
10 and remain relatively physically healthy until sort of an end
11 stage, maybe three to six months before death. But the
12 process of aging in and of itself may also contribute to
13 this. And these of course were very elderly individuals,
14 with the exception of, I think, Mary Crane was the youngest,
15 I guess, at 72.
16 But these things usually do progress together. And at
17 least the health care professionals that evaluate and were
18 taking caring of these patients, in their notes and
19 documentation in the medical records suggest the opposite of
20 what you just described to me. That in fact in the months,
21 and even some cases years, but especially months preceding
22 their deaths these were very significantly ill and in fact
23 seriously ill individuals.
24 Q. How common is pain in patients with far advanced
25 dementia?
1 A. It's estimated now that somewhere between 40 to 80
2 percent, so one out of three, one out of four, up to one out
3 of two or even eight out of ten, but a lot of patients, as
4 they develop dementing illnesses also have a significant pain
5 problem.
6 Q. In 1995 was pain undertreated in the elderly,
7 noncommunicative population?
8 A. Yes.
9 Q. Are there studies that have looked at the undertreatment
10 of pain nationally that have analyzed how it recognized pain
11 in the demented population in 1995?
12 A. There are a few recent studies. This is again an area
13 that --
14 MS. BARLOW: I object to recent studies. Just 1995.
15 THE COURT: They can be recent as long as they go
16 back to 1995.
17 THE WITNESS: It was started to be accumulated in
18 the mid 1990s. The time from generating and initiating a
19 study to publication is usually somewhere between three to
20 five years. So even something published this year started
21 off several years ago. The survey data and research studies
22 that have been done were of that form.
23 Again, these studies were only initiated because there
24 was early recognition that was a problem, a sort of public
25 health problem. The last study that was -- actually, the
1 last study that was revealed just came out a few days ago,
2 maybe a week ago.
3 Q. Let's talk about the Brown study.
4 A. Okay. That's a study done by Joan Teno and her
5 associates at Brown University called the Prevalence and
6 Treatment of Pain in U.S. Nursing Homes. They found that in
7 fact continuous, persistent and severe pain occurred and was
8 found in about one out of every six nursing home patients,
9 and frequently four out of five.
10 States were rated as to the quality of evaluation and
11 treatment of pain, with the most important indicator being
12 after pain was recognized, after serious pain was recognized,
13 on subsequent evaluations did there continue to be serious
14 pain or was it addressed and treated. I regret to say that
15 Utah came in actually dead last in how we fared compared with
16 other states in this area.
17 Q. Now, we've talked about the recognition of pain in the
18 demented population. What is a physician's obligation when
19 they recognize demented, or otherwise, that their patient is
20 suffering from pain? Does organized medicine -- has
21 organized medicine taken a position on what a physician's
22 obligation is in relationship to pain?
23 A. Organized medicine, probably the largest body that speaks
24 for organized medicine, is the American Medical Association.
25 Within the AMA there is a council on ethical and judicial
1 affairs that manages these types of issues. They have come
2 up with very strong statements. In fact they have created,
3 in end of life care, what they call the tenets of ethical
4 practice in addressing these types of issues.
5 Q. Did you bring that with you?
6 A. I brought some. Do you want me to read it?
7 Q. Could you read to us what one of the tenets is that
8 would be promulgated by the AMA? Is that what you're going
9 to tell us, read to us?
10 A. Yes. This is the AMA Institute of Ethical Tenets. One
11 of them, for instance, says physical and mental suffering
12 should be carefully attended to and comfort measures intently
13 secured. So this speaks to an obligation of physicians to
14 actually ensure that.
15 Q. Okay. Dr. Fine, were these five patients able to
16 communicate about their medical conditions in any meaningful
17 way at the Davis north geropsych unit?
18 A. For a couple of the patients there was some times of
19 lucidity where they spoke about having pain and could
20 verbalize. But in the main it appeared that they were all
21 very confused. Some had no significant verbal capacity at
22 all and it was quite minimal in those who did.
23 Q. Mary Crane is one of those that self-reported pain. She
24 was someone who had dementia also, is that right?
25 A. That's correct.
1 Q. Well, what is that going to do when they are presented
2 with a demented patient that reports pain? Is that something
3 that a physician should rely upon? Tell us about that,
4 please.
5 A. Yes, it's something that a physician or a nurse, or
6 really anybody involved in the care of the patient, if they
7 are not -- if they don't have the capacity themselves to
8 evaluate it or treat it, they have an obligation to report it
9 to somebody who does.
10 Q. And how would you rate -- how would you rate the
11 importance of the demented patient that says I do hurt, I do
12 have pain, how important is that as a gauge for the physician?
13 A. Since we don't have any sort of a pain thermometer that
14 we can insert in somebody and get a true gauge of what they're
15 feeling or how they are, sort of like a blood count for
16 hematacrits for your blood count, the hallmark of pain
17 intensity is what the patient states it is. Since demented
18 patients who can't verbalize are in a special class, a
19 vulnerable class, just like preverbal children are, the best
20 we can do for them is to infer from their behaviors the
21 intensity of their pain.
22 Q. Again, in the case of Mary Crane, the jury has heard
23 testimony that from the daughters that the daughters believed
24 that she was anxious and that her reports of pain or
25 headaches or chronic back pain often at times were just
1 attention-seeking behaviors. And in fact that her physician
2 on some level agreed with that too and treated the patient
3 with placebos. Does the medical community have a position on
4 the ethics of treating a patient with a placebo?
5 A. A very strong position.
6 Q. And what is that position?
7 A. That that is completely unethical and contrary to any
8 reasonable practice whatsoever.
9 Q. Is there something -- is the Mary Crane situation a
10 typical situation in 1995, that the family didn't think mom
11 was in pain, she was presenting with anxiety and just thought
12 it was anxiety and not pain? Would that have been typical
13 back then?
14 A. I don't think typical is the right word so much as --
15 there's no -- why I'm hesitating to answer is because there
16 were no formal studies on do you believe people were in pain
17 or not. What we know is we did not validate and value
18 people's complaints of pain and that in fact patients with a
19 dementing illness were discriminated against. For instance,
20 there were studies looking at patients with hip fractures.
21 MS. BARLOW: Objection to the narrative, Your Honor.
22 THE COURT: Sustained.
23 Q. (BY MR. BUGDEN) Just hold that thought for a few
24 minutes. Are there misconceptions, and were there
25 misconceptions in 1995, about the risks of using drugs like
1 morphine, opioids, for the treatment of pain and other
2 distressing symptoms in patients like these?
3 A. Yes, that is true.
4 Q. Are there any articles that have addressed the
5 misconceptions that you've considered and relied upon in
6 testifying today?
7 A. Actually, there are many articles that go to that point,
8 that look at the barriers and the reasons why in fact pain
9 was poorly assessed and poorly treated; and the fears over
10 the use of analgesics, the lack of validation of the science
11 of pain and so forth. There are many articles that actually
12 speak to that precisely.
13 Q. Do you have any of them with you?
14 A. There's one article here that is from a -- it's a
15 palliative medicine compendium. It's an article entitled The
16 Pharmacology of Opiate Drugs and Basic Principles. It was
17 written by the consulting pharmacist who works with us at the
18 University of Utah in the pain management center, a Dr. Art
19 Lipman, who is also nationally known as an expert in
20 palliative medicine and pain medicine pharmacology.
21 What he states from his studies and conclusions is that
22 there is no maximum safe dose of morphine. Interpatient,
23 meaning one person compared to another, variance of up to 50
24 fold has been reported for the dose of morphine required for
25 pain relief. What that means is that, if I could just use an
1 example, in a group of people if you have the exact same
2 pathology or problem that the gentleman has sitting next to
3 you, your dose requirements to get the same amount of relief
4 may be 50 fold different than his. There's tremendous
5 interindividual variability in the doses of these medications
6 to lead to a goal, which is comfort.
7 Q. Now, I'll just remind you that there's an magic zone in
8 that microphone. You were there for most of that last answer
9 and then occasionally you wandered back. I think you're
10 better off sort of away from the mic and just using your
11 natural voice, Doctor.
12 How real is the risk of death from respiratory depression
13 from opioid use? Can you describe that for us, please?
14 A. When treating pain and looking at the relief of pain, the
15 risks of causing people to stop breathing by using these
16 drugs is extraordinarily low. It is a very rare event. In
17 fact, so unusual as to almost be unreportable.
18 Q. Does that change at all -- the jury has heard testimony
19 that the use of opioids was the geriatric -- not just the
20 geriatric, but these are frail elderly people, a different
21 sort of subset of geriatric people. The jury has heard
22 testimony from the state's expert, Brad Hare, that the use of
23 opioids in the frail elderly population is particularly
24 dangerous.
25 A. I wasn't here, I don't know what he said, but if that's a
1 fair summary of what he said it doesn't make any sense to me
2 because right now at the university hospital, just a few
3 miles away, no less LDS or the Davis hospital, there are
4 people who are frail and elderly who are receiving doses of
5 opioids to treat their pain as we speak and who are probably
6 functioning quite a bit better. As we now know is
7 required -- the management of pain is required to function
8 better than if they weren't receiving those drugs. So I
9 don't understand that.
10 Q. Let me talk about morphine dosing with you, please. How
11 does an expert in the field like yourself, a physician, a
12 clinician, how do you go about picking the best dose for your
13 patient? How do you know, and I think we want to ask you to
14 describe for us a starting dose and then how you adjust? How
15 do you do that?
16 A. There are a couple of variables you take into account.
17 The person's body size, what their disease state is, what the
18 intensity of pain you think they're experiencing is, what the
19 cause of it is. Also if they've been on pain relievers
20 before. People can become tolerant very quickly to the
21 effects of pain relievers. That doesn't mean their dose has
22 to go up and up, but it means they may need a higher starting
23 dose than if they have not been exposed to this class of
24 drugs before.
25 And, generally speaking, it really is a best first guess.
1 The best first guess has to do with sort of a milligram or
2 kilogram or milligrams per pound of body weight. So
3 generally speaking, five to ten milligrams as an
4 intramuscular dose would be a very typical dose for an
5 adult, for any adult. It could be higher, could be lower,
6 but that's what most guidelines, most text books, most
7 studies would refer to. In fact, we now know --
8 MS. BARLOW: Objection. I don't think this is
9 responsive.
10 THE COURT: Sustained.
11 Q. (BY MR. BUGDEN) Have you learned more over time about
12 the effects and the dosing of morphine?
13 A. Yes.
14 Q. And what new knowledge is there that perhaps didn't exist
15 before?
16 A. For instance, that there is such a tremendous variation
17 from what one individual may need compared with another. And
18 as a result of that, the kind of technologies that we now use
19 to control pain have changed.
20 MS. BARLOW: Objection again. I don't think this is
21 relevant to 1995.
22 THE COURT: Sustained.
23 Q. (BY MR. BUGDEN) So there have been advances in the
24 delivery systems --
25 MS. BARLOW: Objection. Leading, Your Honor.
1 THE COURT: Overruled.
2 Q. (BY MR. BUGDEN) Have there been advances in the delivery
3 systems of opioids since 1995?
4 A. Considerable advances, yes.
5 Q. And in 1995, for example, Dr. Fine, could a clinician
6 have gone to some book and found for himself or herself what
7 the standard of care was for the treatment of pain in the
8 noncommunicative demented patient? Was there a book you
9 could have gone to?
10 A. In 1995?
11 Q. Yes.
12 A. It would be pretty hard to find any sources back then
13 that spoke specifically to this population.
14 Q. Now, there was a concept you mentioned and I want to ask
15 you to return to it. You talk about people that are opiate
16 naive or not. Let's say you were opiate naive and now you've
17 started the patient on opioids. Once you've begun a patient
18 on opioid therapy, how quickly does a patient develop a
19 tolerance and how do you -- this jury has heard the phrase
20 titrate effect. Tell us about that.
21 A. The first thing to do is look at and evaluate the
22 response. If the patient gets pain relief, and is otherwise
23 comfortable and things seem to be in control, then you've hit
24 upon the right dose and then it's a matter of choosing the
25 route of administration or the dosing schedule that conforms
1 to that person's need. That's defined variably by how the
2 patient metabolizes or gets rid of the amount of medicine on
3 board.
4 Q. Now, in the treatment of elderly patients how important
5 are things like living wills and medical treatment
6 directives? How does that influence the clinician, the
7 treating doctor's, decisions?
8 A. It's certainly very helpful. It makes life a lot easier,
9 not only on the physician but on the patient, on the family,
10 on all stakeholders involved in the care of the patient if
11 that patient has proclaimed what their wishes are, what they
12 would like done to them, so that people don't have to start
13 guessing about it. And if in fact a patient does have a
14 living will that really does serve as the template for how we
15 are to act on their behalf.
16 Q. And this is returning to dosing. The use of opioids, or
17 the use of any drugs, does have risks, can have bad
18 consequences for the patient, is that right?
19 A. Like any other drug, sure.
20 Q. Can you tell the jury a concept in medicine called the
21 principle of double effect?
22 A. Well, the principle of double effect is a very old
23 principle. It actually goes back to medieval times. It's
24 sort of the ethical core of what allows the practice of
25 medicine to proceed unfettered by such overconcern about
1 causing harm that we essentially are paralyzed and can't act
2 on anybody's behalf. That's because virtually any
3 intervention does have foreseeable but undesirable side
4 effects. That's anything from aspirin to immunizations to
5 more serious issues such as surgery or cancer therapy or pain
6 management.
7 So the basic notion is that any intervention has a
8 desired therapeutic effect, but also has a foreseeable and
9 potentially harmful effect that's undesired. These almost
10 always go hand in hand. Depending upon how grave the
11 situation is, and a patient's understanding of the risks, the
12 more they might not want to assume the risk side compared
13 with the therapeutic side.
14 Q. So surgery always has risks, I guess?
15 A. Sure, absolutely.
16 Q. But a physician would balance with the patient, discuss
17 with the patient, the burden and the benefits
18 A. Correct.
19 Q. And a burden could be that a patient could die in
20 surgery, is that right?
21 A. In fact that is the most grave risk associated any time
22 we do an anesthetic and surgical procedure.
23 Q. And in treating cancer, for example, I guess patients can
24 die during the chemo or radiation?
25 A. Yes. In fact, a certain number of patients do die more
1 rapidly as a result of the chemo therapy than if they would
2 have had no therapy. But it's a risk that most people assume
3 for the potential benefit of either remission or a cure.
4 Again, the degrees of risk one takes depends upon how great
5 the situation is.
6 MS. BARLOW: Objection to the narration, Your Honor.
7 THE COURT: Overruled.
8 THE WITNESS: Every situation has to be taken in the
9 context of that situation. One situation doesn't apply to
10 virtually all others.
11 Q. (BY MR. BUGDEN) What's the -- explain the doubling
12 effect as relates to pain management
13 A. Depending upon the context of the individual. In these
14 cases pain management would be an absolute imperative because
15 that would be the only really treatable thing. Without pain
16 management in patients such as these it guarantees an
17 absolutely awful and suffering death. So it becomes an
18 absolute imperative and whatever slight risk there might be
19 of causing sedation or in fact potentially, although most of
20 the studies looking at this have not proven this, but the
21 potential risk of hastening death, is viewed as acceptable
22 under double effect in these types of circumstances.
23 Q. So would a physician be taking an unreasonable risk to
24 use opioid therapy to treat -- to provide pain management to
25 patients in end of life situations?
1 A. No, not at all. The studies I was alluding to that have
2 been done have in fact not shown that aggressive pain
3 treatment does anything but improve the circumstances in
4 which the patient dies and usually doesn't alter the life
5 expectancy. In fact, some studies that have looked at this
6 have shown that good pain management or relief of the kind of
7 suffering and distress that occurs with pain actually allows
8 patients to live longer than they otherwise would. So it's
9 in a sense a paradox, where it goes against the grain of the
10 sort of mythology that has developed around the use of these
11 drugs.
12 Q. Do you have an opinion, Dr. Fine, to a degree of
13 reasonable medical certainty, whether the use of opioid
14 therapy with the patients in this case, and let's leave Ellen
15 Anderson out of it for a moment. But the other four
16 patients, do you have an opinion to a degree of reasonable
17 medical certainty whether the use of opioid therapy with the
18 other four patients, recognizing that it could hasten death,
19 whether that breached the standard of care when Dr. Weitzel
20 used opioid therapy?
21 A. I don't believe it did breach the standard of care at
22 all.
23 Q. Ennis Alldredge, can you give the jury a thumb nail, and
24 I do mean a thumb nail, sketch of his medical condition upon
25 his admission to the hospital?
1 A. I'm challenged by giving thumb nails. These are complex
2 and difficult cases. I guess just stop me when you think
3 I've gone too far.
4 Q. I'll feel free to do that.
5 A. He was an 82 year old man. Prior to his admission to
6 Davis Hospital he had been diagnosed with Alzheimer's
7 disease, coronary artery disease, mycosis fungoides, which is
8 a cancerous condition. He was suffering from low thyroid
9 levels and high blood pressure. He had insulin dependent
10 diabetes. He had gastroesophageal reflux disease and he had
11 the early stages of kidney failure. Lastly, but also
12 probably significant here, is he had a spastic bladder. He
13 had required a number of medications to control his
14 progressive behavioral deterioration that had been markedly
15 changing in preceding weeks and months. He'd grown
16 significantly violent and aggressive, both to himself and
17 others.
18 Q. Let me interrupt you to ask, and the jury knows, that
19 this man weighed about 200 pounds and at 82 he was the second
20 youngest of the five patients. We know that he was strong.
21 But was this a physically robust man when he was admitted to
22 the hospital?
23 A. He had physical strength, that to is to say he could
24 effect violent acts, but he wasn't physically healthy or
25 strong in sense of being well. These are two very different
1 things. People can manifest grip strength or motor strength,
2 but in fact be seriously ill and he was sort of one of those
3 types of individuals.
4 Q. Okay. Do you believe, or do you have an opinion to a
5 reasonable degree of reasonable medical certainty, whether he
6 was terminal when he was admitted to the hospital?
7 A. I believe from all of the evidence, the cumulative
8 evidence garnered from the medical records and documents,
9 both preceding and during the hospitalization that he was in
10 fact terminally ill and in fact very close to death.
11 Q. Do you have an opinion as to whether or not he was an
12 appropriate candidate for admission to a psychiatric unit as
13 opposed to some other place?
14 A. Quite frankly, this was probably the best place for an
15 attempt at least to rescue him from this -- at least to try
16 and calm down this really very distressed behavior. Should
17 he have been admitted to any other acute care facility, I
18 can't see that they could have done much else, except to
19 maybe paralyze him or to physically restrain him, put in
20 intravenous lines and give him potent sedatives drugs to put
21 him into a stuporous state to control his behaviors.
22 Q. The jury understands what had happened at the nursing
23 home and so he came to the hospital --
24 MS. BARLOW: I'll object to the jury understanding.
25 I think that --
1 THE COURT: Sustained. You may indicate that the
2 jury has heard.
3 MR. BUGDEN: Is it okay to say it that way?
4 THE COURT: Yes.
5 Q. (BY MR. BUGDEN) The jury has heard evidence of an
6 increasing pattern of agitation at the nursing home,
7 increasing dosages of psychotropic medications leading up to
8 ultimately the nursing home not being able to handle this
9 man. Are you familiar with that?
10 A. Yes.
11 Q. Once he arrived at the geropsych unit, first was it
12 foreseeable that he was going to be treated with psychotropic
13 medications when he got there?
14 A. I think that was probably the intent of the admission,
15 was to have more expertise in managing the psychotropic drugs
16 than they could affect in the long-term care facility.
17 Q. Do you have an opinion to a reasonable degrees of medical
18 certainty whether Mr. Alldredge was overdosed on psychotropic
19 medications during the four days he was at the hospital?
20 A. At the geropsych unit?
21 Q. Yes.
22 A. No, I don't believe he was overdosed.
23 Q. Do you have an opinion about whether or not the
24 administration of the psychotropic medications somehow
25 exacerbated or enhanced the underlying medical problems
1 you've told us that this gentleman had? Did the
2 psychotropics make his underlying medical problems worse?
3 A. No, I don't believe that was the case. In fact, he is
4 quite resilient to the efforts to try and control his
5 behaviors and his -- I guess, to use a global term, his
6 suffering and distress with these drugs.
7 Q. Do you believe that the psychotropic medications weakened
8 him so that he then was finished off with morphine?
9 A. No. There's no connection between the two.
10 Q. Now, the jury has heard that this gentleman had an MRI
11 and that it was, quote, compromised. Are you familiar with
12 that radiological exam on Mr. Alldredge?
13 A. Yes, I am.
14 Q. And although the exam was compromised, because he moved,
15 do you believe that that would prevent a clinician from
16 drawing conclusions about the severity of the event that had
17 occurred with this patient's brain?
18 A. From what I was able to gather, again the medical
19 records, at least it was adequate to define that there was a
20 relatively new infarction of the brain, damage to the brain.
21 And really to most degrees of specificity back then, in 1995,
22 that would probably be -- I would think, with a fair degree
23 of medical certainty, that would have been adequate enough to
24 understand what was going on and wouldn't -- with any more
25 specificity I cannot understand how it would have altered his
1 therapy thereafter.
2 Q. When you say infarction, does that mean a stroke?
3 A. Basically tissue death.
4 Q. If you could put yourself in that situation, would you
5 have ordered another radiological exam for this man?
6 A. Absolutely not.
7 Q. And tell the jury why you would not have done so?
8 A. First, the only reason to do a diagnostic test at all is
9 if it's going to alter therapy or clarify what is going on so
10 you can choose a care path most appropriate. But it was so
11 difficult, because of his distress and behavior, to get a
12 good study, to have him be still enough. He would have
13 required a general anesthetic with paralysis, with an
14 endotracheal tube, meaning a tube into his breathing pipe.
15 That more likely than not would have actually killed him
16 acutely.
17 Q. Do you believe it was appropriate for Dr. Weitzel, after
18 you reviewed this, quote, radiological exam, to approach Mrs.
19 Alldredge and to present her with a crossroads decision about
20 what she wanted to do with her husband?
21 A. Not only appropriate, but an imperative to do so, with
22 her being the next of kin.
23 Q. Are you familiar with a living will that Mr. Alldredge
24 had?
25 A. Yes, I did review such a document.[
1 Q. And earlier in your testimony I asked you whether or not
2 the medical directives or a living will played a part in a
3 physician's decisions. How do you believe Mr. Alldredge's
4 living will would have contributed to or influenced the
5 reasonably competent care provider, from 1995 --
6 MS. BARLOW: I'll object as to whether it influenced
7 Dr. Weitzel, because it was in the nursing home records, not
8 in the medical records. There's no evidence he ever saw
9 them.
10 THE COURT: Overruled.
11 Q. (BY MR. BUGDEN) How would Mr. Alldredge's living will
12 have influenced a reasonably competent physician in 1995 when
13 making a medical decision for Mr. Alldredge?
14 A. As I read it and in view of the fact that Mr. Alldredge's
15 father died of a similar disease process, a dementing
16 illness, it's almost as if Mr. Alldredge was extremely
17 pressing to know what was going to occur and in fact stated
18 so in unbelievably clear terms.
19 Q. Read that to the jury, the unbelievably clear terms.
20 A. Sure. This is a quotation from the living will of Mr.
21 Alldredge: "I do not fear death itself as much as the
22 indignities of deterioration, dependance and hopeless pain.
23 I therefore ask that medication be mercifully administered to
24 me and that any medical procedures be performed on me which
25 are deemed necessary to provide me with comfort care or to3
1 alleviate pain. I hope you who care for me will feel morally
2 bound to follow this mandate. I recognize that this places a
3 very heavy responsibility upon you, but it is with the
4 intention of relieving you of such responsibility and of
5 placing it on myself, in accordance with my strong
6 convictions, that this statement is made."
7 Q. Thank you. How would that influence, again, a reasonably
8 competent doctor in advising Mrs. Alldredge or how would that
9 enter the thought process?
10 A. From reading this and recognizing how -- what that meant
11 to him, I think it is the absolute responsibility of a
12 physician taking care of him to let her know that in fact
13 what the likelihoods were going to be. Without such
14 aggressive palliative intervention and addressing his
15 symptoms of distress and that the physician was in an
16 absolutely obligatory place to follow those directives.
17 Essentially to do what Dr. Weitzel did, quite frankly.
18 Q. Now, again, trying to focus upon Mr. Alldredge's death,
19 what do you believe caused Mr. Alldredge's death?
20 A. His underlying, not only disease, but diseases.
21 Q. And I've asked this before, but I just want to hook this
22 up and then move on. Do you believe that the psychotropic
23 medications contributed to Mr. Alldredge's death in any way?
24 A. No, I don't believe they did whatsoever.
25 Q. Do you believe that Mr. Alldredge was in pain?
1 A. Yes. I believe that he was in significant pain.
2 Q. Do you believe that Dr. Weitzel met the standard of care
3 by treating the symptom of pain with morphine?
4 A. Yes, I do.
5 Q. And do you disagree or believe that the dosages of
6 morphine that Mr. Alldredge received breached or deviated
7 from the standard of care at all?
8 A. No, I don't.
9 Q. Do you believe that morphine contributed to or caused Mr.
10 Alldredge's death?
11 A. No, I do not.
12 MS. BARLOW: These have all been asked and answered
13 before.
14 THE COURT: Sustained.
15 Q. (BY MR. BUGDEN) Let's talk about Mary Crane now. Can
16 you give us the overview of Mary Crane's medical condition
17 upon admission?
18 A. I guess I remember before she was a 72-year-old lady.
19 She actually had suffered the debilitating and ultimately
20 life limiting consequences of a cerebral vascular disease at
21 actually a pretty young age, her mid 60s. Her health status
22 was further compromised by a longstanding mental illness
23 requiring rather aggressive pharmacological treatment with
24 both tricyclic and then, when it became available, the
25 seratonin class of antidepressants, also treated with
1 benzodiazepines, which are anti-anxiety drugs.
2 THE COURT: Slow down just a little.
3 Q. (BY MR. BUGDEN) Brief doesn't mean speak quickly.
4 A. And she was also treated with antipsychotics over the
5 course of many years. In addition, she had several likely
6 causes of both chronic and seemingly intractable pain
7 resulting from serious spine disease, peptic ulcer disease
8 and that thalamic brain injury. The thalamus being that area
9 in the brain that when injured most typically leads to what
10 is called a central pain syndrome, which is a very severe and
11 very difficult to control type of pain syndrome.
12 Her usual pain treatment consisted of hydrocodone, which
13 is an ingredient in drugs such as Lortab, that sort of thing.
14 And the various class of psychotropic drugs I've already
15 mentioned. At the time that she was discharged from her
16 long-term care residence, in addition to the progressive
17 delirium that exceeded the capabilities of that facility's
18 staff, she was dependant in all aspects of personal care, in
19 addition to being nonambulatory, incontinent and minimally
20 communicative.
21 I would say that with those findings, these do compromise
22 the chief determinants of limited life expectancy when
23 associated with dementing illness. As it turns out, the
24 determination and emergence of several coexistent
25 morbidities, or other disease processes, including plasma
1 proteins, a rectal/vaginal fistula, which I'm guessing I'm
2 not first person to mention that, but it is a sort of hole
3 between the membrane that separates the vagina from the
4 rectum. She suffered from urinary tract infections and
5 evidence of kidney failure. These added confirmatory
6 evidence of her terminal condition at the time of the
7 admission to the Davis Hospital geropsych unit.
8 Q. I think that's enough. I'll ask you just a few questions
9 about the treatment that Dr. Weitzel gave to this patient.
10 First, he used a Duragesic patch. Do you agree or disagree
11 with the use of a Duragesic patch for this patient?
12 A. I've found, and in fact many studies going back to 1995,
13 when this was available, show this is actually a very
14 favorable approach to pain management for continuous pain
15 management in patients such as this.
16 Q. And eventually this woman had the rectal vaginal fistula
17 and appearance of infection as well. She was treated with
18 Cipro and Keflex. Do you think those were good choices to
19 treat the infection?
20 A. I think those were fine choices. I don't know if there's
21 anything better.
22 Q. Once the patient began manifesting pain symptoms, do you
23 believe that Dr. Weitzel should have ordered any particular
24 radiological examination of her abdomen?
25 A. At the time when all this sort of became apparent, I
1 could not, in reviewing the record and trying to evaluate the
2 circumstances, could not come to the conclusion myself that
3 any further diagnostic tests would have been of particular
4 value in altering her course or improving her therapy.
5 Q. Do you think the psychotropic medications played any part
6 in this woman's death?
7 A. No.
8 Q. Do you believe that morphine played any part, caused or
9 contributed to her death?
10 A. No, I don't.
11 Q. What do you think caused Mary Crane's death?
12 A. I think she ultimately succumbed to her underlying
13 dementing illness in combination with the consequences of
14 that, including respiratory and perhaps infectious causes.
15 Q. Keep your voice up a little, Doctor. Do you believe that
16 Dr. Weitzel's treatment of this patient breached the standard
17 of care in any regard for standard care in 1995?
18 A. No. I believe his approach to her care fell within
19 reasonable bounds of what we define as a standard of care.
20 Q. Ellen Anderson. I'm not going to ask you for an overview
21 of her. I'm going to ask you specific questions. Do you
22 believe that this patient had pain?
23 A. Yes, I believe she had serious pain.
24 Q. Do you believe that Dr. Weitzel was entitled -- let me
25 ask it differently. Do you believe Dr. Weitzel breached the
1 standard of care by relying upon the nurse's report at 7:30
2 that the woman was in extreme pain and that at 3:30 the woman
3 was in extreme or severe pain? Do you think that was a
4 breech to rely on what the nurses told him?
5 A. No. More commonly than not that is the information
6 that we rely upon to treat patients in a hospital setting.
7 Q. The jury has heard evidence that Mrs. Anderson was in the
8 hospital for less than a day, a very short period of time.
9 One or maybe more of the state's experts, I believe, have
10 opined that it was highly unusual, and I think the suggestion
11 was, that Dr. Weitzel may have breached the standard of care
12 by not visiting this patient before ordering morphine.
13 MS. BARLOW: I object to any suggestions. The
14 witnesses have said what they said. They've heard the
15 testimony.
16 Q. (BY MR. BUGDEN) They've heard testimony that Dr. Weitzel
17 ordered morphine for this patient over the phone after the
18 nurses reported what they reported. Is there something
19 unusual about that, about Dr. Weitzel relying on the nurses
20 and ordering morphine in that circumstance?
21 A. No. Again, we do rely upon nurse information, histories,
22 and communication to, assessments and the relaying of that of
23 information very commonly over the telephone in order to
24 either initiate or to change therapies. I don't believe that
25 it made any difference in terms of her outcome whatsoever.
1 Q. What about a patient like this that may have described
2 pain, do you think the physician before he treated the pain
3 needed to make a diagnosis of what the pain was? You know,
4 what the source the pain was?
5 A. In an ideal world, it would be wonderful to know exactly
6 what is going on and be able to make diagnoses without
7 putting a patient through any burden or agony to do it. It
8 would also be ideal if we could visit and see patients and
9 actually sit at their bedside as much as possible. But I
10 don't see how in this case either one of those would have
11 been advantageous to this patient, compared with what
12 actually ended up being done, which was to make sure her pain
13 was controlled and that she did not suffer while she was
14 dying.
15 Q. The jury has heard evidence that this woman had a broken
16 hip and had had a hip repair. Are you familiar with any
17 studies that have evaluated pain in patients with hip
18 repairs?
19 A. I was alluding to that earlier. I was digging to see if
20 I could find that study.
21 Q. It would have the letter I.
22 A. The last one in the pile. Wouldn't you know. This was a
23 study I was going to mention earlier. What's important in
24 this study is it was one of the first ones done that looked
25 at the behavior of us as health care professionals, nurses,
1 doctors, in how we treat patients with dementing illness who
2 have manifestations of pain. So what it did was take two
3 groups of patient who had hip fractures. The same pathology.
4 Then they looked at how much pain medicine was given based
5 upon not that pathology, but simply whether they had a
6 dementing illness or not. As it turned out, because patients
7 with dementing illness could not ask for pain medicine,
8 couldn't give a specific pain rating or intense rating
9 verbally, they got considerably less pain medicine in spite
10 of having the exact same disease process. So this was an
11 extraordinarily informative study that I think changed a lot
12 of the ways we think about our behaviors in these patients.
13 Q. Now I'm going to ask you to think about Judith Larsen and
14 I don't actually think I'm going to ask you for a review of
15 her medical conditions, Doctor, but I'll ask you the same
16 series of questions. Do you think that the use of
17 psychotropic medications was indicated for this patient?
18 A. Based upon her history and condition, absolutely, yes,
19 they were indicated.
20 Q. Do you believe that Dr. Weitzel deviated from the
21 standard of care with the dosages or the combination of
22 psychotropic medications had used for this patient?
23 A. No. I believe they fell within the bounds of reasonable
24 practice and that translates to the standard of care.
25 Q. Do you think that this patient had symptoms of pain?
1 A. Yes, I do.
2 Q. And do you believe it was appropriate for Dr. Weitzel to
3 use morphine to treat those symptoms of pain?
4 A. Yes, I think it was appropriate and was indicated. In
5 fact, a result of the treatment actually did address the
6 hypothesis that she in fact was having pain.
7 Q. Explain the hypothesis?
8 A. The hypothesis of these behaviors, these very distressed
9 behaviors, could be either psychotic behavior or delirium
10 based upon her dementia and brain alterations; or a signal
11 that there was pain perception and she was acting out with
12 those behaviors.
13 And in these types of patients, the only way sometimes we
14 actually can know is to determine that in fact it's more
15 likely pain than not, is to use analgesics and see what the
16 result is. The analgesics, like morphine, are very poor
17 antipsychotics. Antipsychotics have virtually no pain
18 reducing effects. So it's a really good way of discerning
19 and defining, if you will, the determination of what is
20 actually going on. Since she responded so favorably to the
21 morphine, that in fact did sustain that hypothesis. In fact,
22 now this is exactly the type of approach we use. Since we
23 don't have a pain-o-meter that we can use, we have to rely upon
24 this type of approach.
25 Q. The jury has heard evidence that there came a time that a
1 nurse withheld morphine sulphate from this patient for three
2 different doses. Would that have -- what consequences or
3 what impact did that have on this patient, do you know, Dr.
4 Fine?
5 A. From my recollection in reading the charts and nursing
6 notes and what occurred around that period of time, all that
7 did was let her blood levels of the pain medicine fall so
8 that the pain emerged again. So she was brought back into
9 the state of being distressed and suffering pain.
10 Q. In the last 24 hours of Judith Larsen's life, the jury
11 has heard evidence, and it's quite clear with the number of a
12 130 at this point. She received 130 milligrams of morphine.
13 This is state's exhibit 3B. Can you see that?
14 MS. BARLOW: I believe it's 3H, Your Honor?
15 THE COURT: The chart is 3H, yes.
16 Q. (BY MR. BUGDEN) Can you see this, Dr. Fine? I'll turn
17 it to you for a moment.
18 A. Okay.
19 Q. Is there anything that would deviate from the standard of
20 care in Dr. Weitzel ordering 130 milligrams of morphine for
21 Judith Larsen on that last day?
22 A. The actual number is really inconsequential. What is
23 consequential is what was the response to the emergence of
24 symptoms and what did the dose do when they were given. What
25 I could determine from looking at the nurse's notes and the
1 response to the therapy was that in fact it did exactly what
2 it was meant to do, which was to relieve her distress, allow
3 her to be calm and comfortable. This goes back to the point
4 made earlier that the numbers in and of themselves have very
5 little meaning. What has meaning is the contact and the
6 response to therapy.
7 Q. The jury has heard testimony about people that were
8 measuring respiration rates. I'm not going to ask about
9 that, but I believe they also heard evidence from nurses and
10 from expert witnesses that if the patient wasn't manifesting
11 pain behaviors why give so much. Why would you give 130
12 milligrams if Judith Larsen didn't -- wasn't screaming, for
13 example, wasn't writhing?
14 A. Well, two things. One is, according to the notes, the
15 nursing notes, she did start to develop these symptoms again
16 when the medicine started to wear off. Secondly, it is not
17 only commonly but in fact is one of the imperatives of
18 treatment guidelines that around the clock dosing for
19 continuous problems, pain problems, is in fact the standard
20 of care. To wait for the pain to re-emerge again would have
21 been a breach in the standard of care. So what was done by
22 providing continuous dosing at intervals that had fairly well
23 demonstrated to be required to keep her symptoms at bay was
24 the right thing to do.
25 Q. Do you have an opinion, to a reasonable degree of medical
1 certainty, whether or not morphine caused or contributed to
2 Mrs. Larsen's death?
3 A. I didn't hear the question.
4 Q. Do you have an opinion about whether or not the morphine
5 dosing, 130 milligrams on the last day of life and leading up
6 to the days before, whether or not the morphine caused or
7 contributed to her death?
8 A. Yes, I have an opinion.
9 Q. What is the opinion?
10 A. That it had nothing to do with the cause of her death.
11 Q. What do you believe was the cause of her death?
12 A. Her underlying disease process.
13 Q. Lydia Smith now. I'm not going to ask you about her
14 medical condition. The jury has heard evidence that this
15 woman demonstrated distressing -- symptoms of agitation and
16 combativeness while in the geropsych unit. Do you have an
17 opinion about whether the use of psychotropic medications was
18 appropriate for this patient?
19 A. Yes, I believe they were appropriate.
20 Q. And do you have an opinion about whether or not the
21 combinations of medications, or the dosing of the
22 psychotropic medications deviated from the standard of care?
23 A. I think the combinations were appropriate in order to
24 attain what was the plan of care and proved to be necessary
25 in order to try and get these symptoms under control.
1 Q. By the last day of her life there is some evidence, or
2 the jury, I believe, has heard some evidence, that she was
3 drowsy or lethargic, things of that nature. Do you believe
4 it breached the standard of care for Dr. Weitzel to use
5 morphine at the end of this woman's life, let's start there?
6 A. Yes, I think it was appropriate.
7 Q. You think it was appropriate?
8 A. Yes.
9 Q. Do you have an opinion, to a degree of reasonable medical
10 certainty, what caused this woman's death?
11 A. Again, I believe her underlying medical conditions.
12 Q. Do you believe morphine caused or contributed to this
13 woman's death?
14 A. No, I don't. I believe it allowed her to die otherwise
15 comfortably rather than in a lot of distress and pain, which
16 she was manifesting without the medicine.
17 Q. Dr. Fine, one of the experts has criticized or has --
18 MS. BARLOW: I'll object to that characterization.
19 THE COURT: Sustained.
20 Q. (BY MR. BUGDEN) Has testified that Dr. Weitzel breached
21 the standard of care by conducting a psychiatric admission on
22 this patient in 28 hours rather than in 24 hours. Do you
23 believe that that fact, in and of itself, breached the
24 standard of care?
25 A. I just don't know how in fact it could have been any
1 difference whatsoever in her outcome.
2 MS. BARLOW: Your Honor, I don't think that's
3 responsive. The question was whether it breached the
4 standard of care, not if it changed the outcome.
5 THE COURT: Sustained.
6 Q. (BY MR. BUGDEN) I'll ask that question and then the
7 second question. Did it breach the standard of care, Dr.
8 Fine?
9 A. I think there is a range -- it's accepted that there's a
10 range of times that one can see a patient. Optimally one
11 sees a patient as quickly as one can, but I don't believe
12 that within that wide range it could be stated that a
13 significant breach of the standard of care occurred by seeing
14 a patient 28 instead of 24 hours under these types of
15 circumstances.
16 Q. Lydia, I believe, was in the hospital for ten days. Do
17 you believe that the delay by four hours in 24 to 28 hours,
18 that that altered the outcome for this patient?
19 A. There is no evidence to that whatsoever.
20 Q. Dr. Fine, do you review medical records and medical
21 charts for Vista Care or -- first, do you do that, review
22 medical charts in connection with your -- in connection with
23 Vista Care?
24 A. Yes.
25 Q. Do you review medical charts on behalf of the state of
1 Utah?
2 A. Yes. I don't do that presently, but I have done it
3 extensively in the past.
4 Q. And in what capacity did you do it for the state of Utah,
5 review medical charts?
6 A. For the medical review committee of the Utah Peer Review
7 organization, as well as for the Medical Review Institute,
8 which is a medical review organization.
9 Q. And how does the documentation, the description by Dr.
10 Weitzel of his thoughts, compare with the other records that
11 you have reviewed?
12 MS. BARLOW: Objection. I don't know that that's
13 relevant.
14 THE COURT: Overruled. That is one of the arguments
15 that have been made by certain of the witnesses. Go ahead.
16 THE WITNESS: Will you repeat the question, please.
17 Q. (BY MR. BUGDEN) Sure. You've reviewed medical charts on
18 behalf of the state of Utah. You've reviewed medical charts
19 for Vista Care. My question is how does the documentation,
20 the description of Dr. Weitzel's thoughts as reflected in the
21 medical charts in these five patients' cases, how would you
22 say that compares with the records that you reviewed over the
23 years, in particular for the state?
24 A. I'd say the bottom line is that of the thousands and
25 thousands of medical records I've now reviewed, the records
1 from this geropsych unit, the doctors notes and nurse notes
2 are very typical, very typical, of what one sees in most
3 institutional hospital handwritten records.
4 Q. Dr. Fine, after your consideration of the underlying
5 disease processes in these frail patients, your consideration
6 of the use of psychotropic medication in these patients that
7 had dementia with symptoms of agitation, what have you, the
8 recognition that these patients did have pain, the decision
9 by Dr. Weitzel to treat the pain, the decision by Dr. Weitzel
10 to use morphine, the dosages of morphine that Dr. Weitzel
11 used, the advanced directives that these patients had, is
12 there anything else that would lead you to conclude that Dr.
13 Weitzel met the standard of care for the treatment of the
14 five patients in this case?
15 A. I would agree that in the care of these patients, for the
16 circumstances and the context and these patients with far
17 advanced illness and with terminal disease processes, that in
18 fact it was an obligation to address their pain, their
19 suffering, their distress, to make sure that since they were
20 dying that they would die comfortably. And that, quite
21 frankly, to condemn the actions of Dr. Weitzel would
22 really be to --
23 MS. BARLOW: Objection. I don't think this is
24 responsive.
25 THE COURT: Overruled.
1 Q. (BY MR. BUGDEN) You may go ahead and answer the
2 question.
3 A. I was trying to conclude that to condemn these actions
4 taken by Dr. Weitzel would in fact be to condemn these
5 patients to a horrible death and to condemn similar patients
6 to similar circumstances.
7 MR. BUGDEN: Thank you, Dr. Fine. Nothing further.
8 THE COURT: Let's take our lunch break at this time,
9 ladies and gentlemen. Doctor, I'll ask you to step down.
10 We'll be in recess until 1:00. See you back at 1:00. I'll
11 remind you of my prior admonitions.
12 (Lunch recess.)
13 (Morning session concluded.)
2 (THE AFTERNOON SESSION BEGINS.)
3 THE COURT: THE RECORD SHOULD SHOW THE PARTIES AND
4 COUNSEL ARE PRESENT, THE JURY IS IN THE JURY BOX. DR. FINE
5 IS BACK ON THE STAND AND MAY I REMIND YOU THAT YOU'RE STILL
6 UNDER OATH.
7 MS. BARLOW, YOU MAY CROSS-EXAMINE.
8 MS. BARLOW: THANK YOU, YOUR HONOR.
9 CROSS-EXAMINATION
10 BY MS. BARLOW:
11 Q. DR. FINE, WE'VE MET BEFORE, HAVEN'T WE?
12 A. YES.
13 Q. DON'T NEED TO INTRODUCE MYSELF?
14 A. NO.
15 THE COURT: JUST MAKE SURE THAT MICROPHONE -- WE'RE
16 GETTING FEEDBACK HERE. IS THAT OKAY? LET'S WAIT JUST A
17 MINUTE.
18 MS. BARLOW: THE JOYS OF MODERN TECHNOLOGY.
19 THE COURT: ALL RIGHT. WE'RE OKAY NOW. GO AHEAD.
20 MS. BARLOW: THANK YOU, YOUR HONOR.
21 Q. (BY MS. BARLOW) DR. FINE, HAVE YOU HAD PERSONAL CONTACT
22 WITH THE DEFENDANT ABOUT YOUR TESTIMONY IN THIS CASE?
23 A. YOU'RE REFERRING ABOUT DR. WEITZEL?
24 Q. YES.
25 A. NO.
1 Q. ALL YOUR CONTACTS HAVE BEEN THROUGH COUNSEL FOR
2 DR. WEITZEL?
3 A. YES.
4 Q. HAVE YOU EVER TESTIFIED BEFORE IN A CRIMINAL CASE?
5 A. NO, I HAVEN'T. WITH THE EXCEPTION OF THE TIME I WAS IN
6 THE COURTROOM HERE AT DAVIS COUNTY REFERRING TO THE REVERSAL
7 OF THE FIRST TRIAL.
8 Q. NOW, YOU'RE CONCERN IN BASICALLY SINCE EARLY 1990 HAS
9 BEEN MOVING TOWARDS ADEQUATE PAIN MANAGEMENT AND END-OF-LIFE
10 CARE; ISN'T THAT CORRECT?
11 A. ONE FACET OF END-OF-LIFE CARE, PAIN MANAGEMENT. BUT --
12 Q. BUT END-OF-LIFE CARE AND HOSPICE HAS BEEN YOUR FOCUS FOR
13 PROBABLY 10 OR 12 YEARS NOW; ISN'T THAT CORRECT?
14 A. THE MAIN FOCUS, YES.
15 Q. YES.
16 I THINK COUNSEL TALKED TO YOU ABOUT HAVING REVIEWED THESE
17 RECORDS SEVERAL YEARS AGO. HAVE YOU REVIEWED THEM MORE
18 RECENTLY THAN THAT?
19 A. YES, I HAVE.
20 Q. THE MEDICAL RECORDS?
21 DO YOU RECALL NOTICING ANY -- THAT IN THE NURSING RANKS
22 THERE WERE BASICALLY TWO CAMPS IN THESE RECORDS? DID YOU
23 NOTICE THAT AT ALL?
24 A. I WOULDN'T HAVE CHARACTERIZED IT LIKE THAT, NO.
25 Q. DID YOU NOTICE THAT THERE WERE CERTAIN NURSES THAT WOULD
1 CHART PAIN AND WOULD ADMINISTER THE ANALGESICS, THE MORPHINE
2 WITHOUT ANY QUALMS, AND OTHER NURSES, OTHER GROUPS OF NURSES
3 WOULD CHALLENGE OR SAY I DON'T SEE PAIN OR NOT CHART PAIN?
4 DID YOU NOTICE THAT IN THESE RECORDS?
5 A. AGAIN, I WOULDN'T HAVE CHARACTERIZED IT LIKE YOU'VE
6 DESCRIBED IT.
7 Q. DID YOU SEE A DIFFERENCE IN SOME NURSES WERE WILLING TO
8 GIVE -- WELL, LET'S START WITH -- CHARTED PAIN MORE OFTEN
9 THAN OTHER NURSES DID?
10 A. THERE WERE A COUPLE OF OCCASIONS WHERE I NOTICED -- WELL,
11 I DIDN'T NOTICE -- IT WAS DOCUMENTED THAT DRUGS WERE WITHHELD
12 BY -- BUT OTHER THAN THAT, THERE WASN'T SORT OF A
13 CHARACTERISTIC I NOTICED THAT PERMEATED THE CHARTS WHERE
14 THERE WAS A DIVISION OR DIVISIVENESS AS YOU'VE SUGGESTED.
15 Q. YOU DIDN'T NOTICE ANYTHING LIKE THAT?
16 A. SIMPLY THAT THERE WERE SOME TIMES WHEN DRUGS WERE
17 WITHHELD AND A DISCUSSION TOOK PLACE ABOUT WHY.
18 Q. WHEN YOU REVIEWED THESE RECORDS YOU BECAUSE OF YOUR
19 EXPERTISE, WOULD FOCUS ON SYMPTOMS OF PAIN; ISN'T THAT
20 CORRECT?
21 A. WELL, IF WE GO BACK TO THE ORIGINAL REQUEST BY THE
22 PROSECUTION TO REVIEW THE CASE, THAT WASN'T -- THAT WASN'T
23 EXPLICITLY THE REASON. AND THEN WHEN DOCTOR -- ATTORNEY
24 BUGDEN ASKED ME TO REVIEW THE RECORDS, THAT WASN'T
25 SPECIFICALLY ABOUT PAIN EITHER, NO.
1 Q. BUT BECAUSE OF YOUR EXPERTISE, YOUR SPECIALTY IN PAIN
2 MANAGEMENT, YOU DID, OF COURSE -- I MEAN, THE PAIN THINGS
3 WOULD JUMP OUT AT YOU; ISN'T THAT CORRECT?
4 A. WELL, I WAS REVIEWING THEM TO EVALUATE WHETHER THE
5 STANDARD OF CARE FOR PATIENTS UNDER THESE CIRCUMSTANCES OR
6 THESE CONDITIONS HAD OR HAD NOT BEEN MET. AND THAT REQUIRES
7 A GLOBAL EVALUATION OF MANY THINGS, NOT SIMPLY PAIN, BUT
8 CERTAINLY PAIN IS ONE OF THEM AND THAT -- AS IT'S BEEN
9 ESTABLISHED, THAT'S ONE OF MY AREAS OF EXPERTISE.
10 Q. RIGHT. AND YOU'VE OPINED AS TO WHETHER PSYCHOTROPIC
11 DRUGS WERE APPROPRIATE IN THIS CIRCUMSTANCE BUT YOU'RE NOT A
12 PSYCHIATRIST; ISN'T THAT CORRECT?
13 A. THAT'S CORRECT.
14 Q. YOU DIDN'T STUDY THAT SPECIALITY AT ALL?
15 A. I'M NOT A BOARDED PSYCHIATRIST, NO.
16 Q. AND YOU'RE NOT AWARE THAT SOMETIMES THE PARADOXIC EFFECTS
17 OF PSYCHOTROPIC MEDICATIONS, THAT THEY MIGHT CAUSE THE VERY
18 SYMPTOMS THAT THEY ARE INTENDED TO TREAT?
19 A. WELL, I THINK THE FAIR WAY OF ANSWERING THAT QUESTION IS
20 THAT IF -- PERTAINING TO MY AREA OF EXPERTISE AND CLINICAL
21 CAPACITIES, THAT PSYCHOTROPIC DRUGS ARE VERY FREQUENTLY USED
22 IN BOTH PAIN MANAGEMENT AND END-OF-LIFE CARE. AND SO I'M
23 QUITE FAMILIAR WITH THEIR USE IN THIS KIND OF SETTING.
24 Q. ARE YOU FAMILIAR WITH THEIR PARADOXIC EFFECT IN TREATING
25 AGITATION, THEY MIGHT EXACERBATE THE VERY AGITATION THEY'RE
1 MEANT TO TREAT?
2 A. THERE IS -- THERE ARE TOXIC EFFECTS ASSOCIATED WITH ALL
3 DRUGS. AND ONE OF THE EFFECTS OF SOME OF THE PSYCHOTROPICS
4 IS TO -- IS TO HAVE WHAT I GUESS IS WHAT I -- I GUESS YOU
5 HAVE TO DESCRIBE PARADOXIC EFFECT WITH A SPECIFIC DRUG MORE
6 EXPLICITLY FOR ME TO BE ABLE TO ANSWER THAT QUESTION MORE
7 ACCURATELY.
8 Q. LET'S LEAVE OUT PARADOXIC THEN.
9 PSYCHOTROPIC DRUGS CAN CAUSE THE VERY AGITATION -- SOME
10 PSYCHOTROPIC DRUGS CAN CAUSE THE VERY AGITATION THAT THEY ARE
11 MEANT TO TREAT; IS THAT NOT CORRECT?
12 A. WELL, NOT ALL PSYCHOTROPIC DRUGS ARE MEANT TO TREAT
13 AGITATION, SO I'M STRUGGLING. I'M WORKING HERE TO TRY TO --
14 Q. LET'S TALK ABOUT THE ONES THAT ARE MEANT TO TREAT
15 AGITATION. THOSE DRUGS, THOSE PSYCHOTROPIC DRUGS CAN CAUSE
16 THE VERY AGITATION THEY ARE INTENDED TO TREAT; IS THAT NOT
17 CORRECT?
18 THE COURT: AGAIN, IF YOU CAN'T UNDERSTAND THE
19 QUESTION --
20 THE WITNESS: I REALLY -- I'M SORRY. I REALLY DON'T
21 UNDERSTAND THE QUESTION.
22 MS. BARLOW: THANK YOU.
23 Q. (BY MS. BARLOW) THE GOAL IN PAIN MANAGEMENT IS COMFORT
24 WITH AS MUCH CONSCIOUSNESS AS POSSIBLE WITHOUT PAIN; IS THAT
25 NOT CORRECT?
1 A. SOMETIMES. SOMETIMES THE GOAL IS ALLEVIATION OF
2 CONSCIOUSNESS OR AWARENESS AS A THERAPEUTIC ENDPOINT.
3 Q. BUT AS A THERAPEUTIC ENDPOINT. BECAUSE THE PAIN IS SUCH
4 THAT YOU NEED TO BASICALLY SEDATE THEM BECAUSE THAT'S THE
5 ONLY WAY TO DEAL WITH THE PAIN; IS THAT NOT CORRECT?
6 A. NO. SOME PATIENTS SPECIFICALLY DESIRE TO BE SEDATED TO
7 THE POINT WHERE THEY ARE NOT AWARE OF THEIR CIRCUMSTANCES,
8 THAT IS A THERAPEUTIC ENDPOINT IN AND OF ITSELF.
9 Q. BUT YOU DIDN'T SEE THESE KINDS OF REQUESTS IN THESE
10 PATIENTS, DID YOU?
11 A. NO. THEY COULD NOT MAKE SPECIFIC REQUESTS.
12 Q. RIGHT.
13 A. THEY WERE NOT IN A POSITION TO DO SO.
14 Q. OKAY. SO WITH THESE PATIENTS YOUR -- THE RESPONSIBILITY
15 OF THE PAIN MANAGER IS TO KEEP THEM AS COMFORTABLE AS
16 POSSIBLE; I.E., NO PAIN, BUT TO KEEP THEM AS CONSCIOUS AS
17 POSSIBLE AS LONG AS THERE'S NO PAIN; ISN'T THAT CORRECT?
18 A. IF THAT'S -- IF THAT'S INDEED POSSIBLE, SURE.
19 Q. RIGHT. RIGHT. WE ALWAYS TALKING ABOUT POSSIBILITIES
20 HERE, AREN'T WE? WE'RE TALKING ABOUT AN ART, NOT A SCIENCE;
21 ISN'T THAT CORRECT?
22 A. WE'RE TALKING ABOUT BOTH. HOPEFULLY AS MUCH SCIENCE AS
23 POSSIBLE APPLIED TO THE ART.
24 Q. MANY OF YOUR ARTICLES WERE IN REFERENCE TO CANCER PAIN;
25 IS THAT NOT CORRECT?
1 A. SOME ARE, SOME ARE NOT. I HAVEN'T PUT THEM ON A SCALE.
2 I DON'T KNOW. I HAVEN'T COUNTED.
3 Q. BUT YOU'VE DONE STUDIES AND YOU'VE WRITTEN ABOUT CANCER
4 PAIN?
5 A. YES, I HAVE.
6 Q. AND CANCER PAIN IS A DIFFERENT PAIN -- I DON'T KNOW IF
7 DIFFERENT IS THE BEST WORD, BUT CANCER PAIN CAN BE MUCH MORE
8 SEVERE THAN LIKE CHRONIC LOW BACK PAIN AND THAT SORT OF
9 THING; ISN'T THAT CORRECT?
10 A. AND YOU COULD SAY THE OPPOSITE, THAT CHRONIC LOW BACK
11 PAIN OR POSTSTROKE PAIN CAN BE FAR MORE SEVERE THAN CANCER
12 PAIN. IT ALL DEPENDS ON --
13 Q. IT'S INDIVIDUAL, ISN'T IT?
14 A. YES, IT IS.
15 Q. END-OF-LIFE CARE FOR CANCER PATIENTS IN THE PAIN
16 MANAGEMENT REALM, THOUGH, DON'T YOU NORMALLY SEE AN
17 EXACERBATION OR AN INCREASE OF PAIN OVER TIME IN CANCER
18 PATIENTS?
19 A. AS DISEASE PROGRESSES IT'S MORE COMMON THAN NOT FOR PAIN
20 PROBLEMS TO PROGRESS ALONG WITH IT, YES.
21 Q. NOW, THESE GUIDELINES THAT YOU HELPED PREPARE IN 1997 FOR
22 THE AMERICAN GERIATRIC SOCIETY AND PUBLISHED IN '98 CLEARLY
23 WERE NOT AVAILABLE TO PHYSICIANS IN 1995; IS THAT CORRECT?
24 A. BY DEFINITION, SURE.
25 Q. AND, IN FACT, IN 1995, AND MAYBE THAT'S BORNE OUT BY THE
1 STUDY YOU REFERENCED TO THAT WAS JUST PUBLISHED RECENTLY,
2 DOCTORS IN UTAH IN YOUR ESTIMATION WERE NOT GIVING
3 APPROPRIATE -- OR NOT ENOUGH DOCTORS IN UTAH WERE GIVING
4 APPROPRIATE PAIN MANAGEMENT AT THE END OF LIFE; ISN'T THAT
5 CORRECT?
6 A. I THINK THAT'S A FAIR STATEMENT THAT'S BEEN BORNE OUT
7 WITH STUDIES, YES.
8 Q. AND, IN FACT, THAT IS ONE OF YOUR CONCERNS THAT YOU'RE
9 TRYING TO ADDRESS IS MAKING SURE THAT THERE'S ADEQUATE, IN
10 YOUR MIND, PAIN CARE AT THE END OF LIFE; ISN'T THAT CORRECT?
11 A. IT'S PART OF THE ROLE I PLAY IN MY RESPONSIBILITIES AT
12 THE UNIVERSITY AND WITH VISTA CARE, SURE.
13 Q. AND, IN FACT, WHEN YOU SPOKE WITH MS. BOWMAN AND MYSELF
14 BACK IN APRIL OF 2000, YOU WERE CONCERNED THAT A CASE SUCH AS
15 THIS MIGHT IMPACT DOCTORS GIVING ADEQUATE PAIN MANAGEMENT AT
16 THE END OF LIFE, DID YOU NOT? WERE YOU NOT CONCERNED ABOUT
17 THAT?
18 A. WELL, YEAH. I THINK IT'S BEEN VERY WELL SHOWN THAT WHEN
19 CASES ARE MISCONSTRUED OR MISUNDERSTOOD OR MISINFORMED THAT,
20 IN FACT, IT CAN HAVE CONSIDERABLE IMPACT ON PEOPLE'S
21 BEHAVIOR, SURE.
22 Q. AND YOU'VE HAD OCCASION TO SPEAK TO GROUPS, MAYBE EVEN
23 UTAH MEDICAL ASSOCIATION, YOU KNOW, END-OF-LIFE CARE GROUPS
24 AND THAT SORT OF THING ABOUT THE IMPACT THAT THIS CASE MIGHT
25 HAVE ON PROPER PAIN MANAGEMENT IN THE END-OF-LIFE CARE; ISN'T
1 THAT CORRECT?
2 A. I THINK THE ONLY PUBLIC FORUM WHERE THIS CASE MAY HAVE
3 COME UP AND WAS ONLY VERY OBTUSELY REFERENCED WAS IN A -- AND
4 I CAN'T EVEN REMEMBER, IT WAS AN AFTERNOON FORUM OF SOME FORM
5 AT HEALTH INSIGHT, AND QUITE FRANKLY, I CAN'T EXACTLY
6 REMEMBER WHAT THE SPECIFIC THEME WAS OR WHY I WAS ON THE
7 PANEL. BUT THERE HAVE BEEN NO OTHER PUBLIC FORUMS THAT I'M
8 AWARE OF WITH THIS WHERE I'VE BEEN INVOLVED WITH A DISCUSSION
9 OF THIS CASE, NO.
10 Q. BUT PRIVATELY THERE HAVE BEEN DISCUSSIONS WITH PHYSICIANS
11 IN THIS STATE THAT THE IMPACT THAT THIS CASE MIGHT HAVE ON
12 PROPER PAIN MANAGEMENT AT END-OF-LIFE CARE; ISN'T THAT
13 CORRECT?
14 A. I'VE HEARD RUMBLINGS, SURE.
15 Q. AND, IN FACT, PEOPLE HAVE TALKED TO YOU ABOUT IT BECAUSE
16 OF YOUR INVOLVEMENT IN THIS CASE, HAVE THEY NOT?
17 A. PEOPLE HAVE MADE AN EFFORT TO ENGAGE ME IN DISCUSSION.
18 I'VE -- KNOWING THAT I WAS INVOLVED AND THAT THIS CASE WAS
19 MORE LIKELY THAN NOT GOING TO GO FORWARD, I HAVE MADE AN
20 EFFORT TO NOT BE VERY INVOLVED BASED UPON WHAT HAPPENED THE
21 LAST TIME AROUND.
22 Q. YOU'VE INDICATED EACH ONE OF THESE PEOPLE, EACH ONE OF
23 THESE PATIENTS CAME INTO THE HOSPITAL EXTREMELY ILL, FAR
24 ADVANCED DEMENTIA; IS THAT CORRECT?
25 A. THAT'S CORRECT.
1 Q. AND I THINK YOU'VE TALKED -- YOU'VE TALKED IN THE PAST
2 ABOUT THE F.A.S.T SCALE OF DEMENTIA; IS THAT CORRECT?
3 A. NOT TODAY IN THIS COURT. I HAVE IN THE PAST AND I USE IT
4 ON A REGULAR BASIS IN MY WORK.
5 Q. AND THE F.A.S.T. STANDS FOR FUNCTIONAL ASSESSMENT AND I
6 LOSE IT AFTER THAT. WHAT DOES IT STAND FOR?
7 A. IT STANDS FOR FUNCTIONAL ASSESSMENT STAGING TEST.
8 Q. STAGING WHAT?
9 A. TEST.
10 Q. TEST. THANK YOU.
11 AND IT'S A PRETTY STANDARD USE AMONG PEOPLE WHO TREAT
12 DEMENTIA IN THE ELDERLY?
13 A. I DON'T KNOW IF IT'S A STANDARD TOOL AS OF YET. IT'S
14 GAINING IN ITS USE. AS PEOPLE BECOME MORE AWARE OF A
15 NECESSITY OF DETERMINING CARE PATHS FOR PEOPLE ALONG
16 DIFFERENT TRAJECTORIES OF THEIR ILLNESS AND MAKING THEM
17 PROGNOSTIC DECISIONS SO THAT PEOPLE GET THE RIGHT CARE, BUT I
18 COULDN'T -- THERE HAS NOT BEEN A STUDY TO DATE THAT HAS
19 EVALUATED HOW FREQUENTLY PEOPLE ARE OR NOT USING THAT SCORING
20 SCALE.
21 Q. AND THERE ARE SEVEN STAGES BASICALLY IN DEMENTIA BASED ON
22 THE F.A.S.T SCALE; ISN'T THAT CORRECT?
23 A. THAT IS CORRECT.
24 Q. AND IT'S KIND OF AN EMPIRICAL THING, IF THEY CAN DO
25 CERTAIN THINGS THEY FALL INTO THIS CATEGORY, IF THEY CAN NO
1 LONGER DO IT, THEY MIGHT DROP TO THE NEXT CATEGORY; IS THAT
2 CORRECT?
3 A. WELL, IT'S STAGED BY FUNCTIONAL CAPACITIES. IN THE END
4 STAGES BY INABILITY TO DO CERTAIN FUNCTIONS, SUCH AS TO
5 SPEAK, USE OF LANGUAGE, BUT ALSO DEVELOPMENT OF INCONTINENCE
6 OF URINE AND STOOL. SO IT'S A NUMBER OF THINGS.
7 Q. AND THE END STAGE BASICALLY IS STAGE SEVEN?
8 A. THAT'S THE LAST, LAST STAGE ON THE SCALE, YES.
9 Q. RIGHT. AND YOU CONSIDERED ALL OF THESE PEOPLE TO BE IN
10 STAGE SEVEN AS THEY ENTERED THIS UNIT?
11 A. YOU KNOW, NOT HAVING GONE BACK AND EVALUATED, BUT I THINK
12 TO THE BEST -- IF I CAN SORT OF THINK OF THESE FIVE PATIENTS,
13 THEY'RE PROBABLY STAGE SIX OR SEVEN. I DON'T THINK THERE'S
14 ANYBODY LOWER THAN STAGE SIX.
15 Q. AND EVEN AT STAGE SEVEN ACCORDING TO THE F.A.S.T SCALE A
16 PERSON MIGHT STILL HAVE ANOTHER FIVE OR SIX YEARS TO LIVE; IS
17 THAT CORRECT? DEPENDING ON WHERE THEY ARE WITHIN THE STAGE,
18 OF COURSE.
19 A. WELL, I THINK AS I TESTIFIED EARLIER THIS MORNING AS WE
20 LOOK AT ALZHEIMER'S AND THE DEMENTIAS STATING THAT SOMEBODY'S
21 WHO'S PROGRESSING IN THEIR DISEASE, IT WOULD BE UNUSUAL EVEN
22 AT THE ONSET OF DISEASE TO SAY MORE LIKELY THAN NOT THE
23 PERSON IS GOING TO LIVE SIX OR SEVEN YEARS. THE AVERAGE LIFE
24 EXPECTANCY, THE MEDIAN LIFE EXPECTANCY WILL MAYBE BE BETWEEN
25 TWO AND FOUR YEARS. AND BY THE TIME SOMEBODY GETS TO
1 F.A.S.T. SIX OR SEVEN, IT'S PRETTY WELL ESTABLISHED NOW THAT
2 WE'RE TALKING ABOUT MONTHS TO LIVE RATHER THAN YEARS TO LIVE.
3 Q. AND THAT IS NOT WHAT THE F.A.S.T SCALE SHOWS, THOUGH, IS
4 IT? THIS IS SOMETHING MORE CURRENT, MORE RECENT THAN THE
5 F.A.S.T SCALE?
6 A. WELL, THE F.A.S.T SCALE HAS BEEN USED TO APPLY -- HAS A
7 PROGNOSTIC TOOL TO DETERMINE IN FACT WHEN PALLIATIVE CARE,
8 PRIMARY PALLIATIVE CARE OR A HOSPICE PATH MAY BE APPROPRIATE
9 BECAUSE OF LIMITED LIFE EXPECTANCY. SO, IN FACT, THE F.A.S.T
10 SCALE IS NOW USED CONVENTIONALLY IN HOSPICE CARE AND THROUGH
11 THE RECOMMENDATIONS OF THE DEPARTMENT OF HEALTH AND HUMAN
12 SERVICES, MEDICARE AND SO ON TO USE SPECIFICALLY FOR THAT
13 PURPOSE.
14 Q. WHEN YOU TALKED ABOUT THESE FIVE PATIENTS IN GENERAL YOU
15 SAID THEY HAD CONDITIONS THAT TYPICALLY CAN CAUSE PAIN; IS
16 THAT CORRECT?
17 A. THAT'S CORRECT.
18 Q. AND THEY HAD SIGNS AND SYMPTOMS THAT COULD BE CONSIDERED
19 TO BE PAIN; IS THAT CORRECT?
20 A. WELL, FAR MORE LIKELY THAN NOT.
21 Q. BUT THERE ARE OTHER THINGS THAT CAN CAUSE SOME OF THESE
22 SYMPTOMS; IS THAT NOT CORRECT?
23 A. THERE ARE SOME OTHER THINGS THAT CAN CAUSE THEM. BUT
24 AGAIN, RECOGNIZING THAT MOST OF THOSE EITHER HAD BEEN RULED
25 OUT OR THE SYMPTOMS WERE SO SEVERE AS TO ELIMINATE SOME OF
1 THE MORE TRIVIAL THINGS THAT MIGHT CAUSE THESE TYPES OF
2 SYMPTOMS, IT WAS FAR MORE LIKELY THAN NOT THAT THEIR
3 UNDERLYING DISEASE PROCESSES WITH THE TYPES OF PAIN WE KNOW
4 PREDICTABLY OCCUR --
5 Q. WELL BUT --
6 A. -- WAS THE OUTCOME.
7 Q. OKAY. THANK YOU.
8 THE AGITATION SYMPTOMS THAT SOME OF THESE PATIENTS CAME INTO
9 THE HOSPITAL WITH, THAT WAS NOT DIAGNOSED BY DR. WEITZEL AS
10 PAIN, WAS IT?
11 A. I DON'T THINK I CAN ANSWER THAT QUESTION. I DON'T KNOW
12 IF THERE WAS EVER A STATEMENT ON THE CHART THAT SAID THIS
13 PATIENT IS AGITATED BUT I DON'T THINK IT'S PAIN.
14 Q. WELL, I RECOGNIZE THAT.
15 A. IT WAS INTERPRETED THE OTHER WAY, WHERE THIS PATIENT IS
16 AGITATED ALONG WITH A WHOLE BUNCH OF OTHER THINGS. AND
17 ULTIMATELY THE DECISION WAS THIS MAY OR MORE LIKELY -- OR IS
18 PROBABLY PAIN, SO LET'S TREAT IT AS PAIN AND SEE WHAT
19 HAPPENS.
20 Q. THAT IS ULTIMATELY WHAT HE SAID. I'M TALKING ABOUT WHEN
21 HE FIRST CAME IN AND HE FIRST DID HIS PSYCHOLOGICAL
22 EVALUATION ON EACH ONE OF THESE PEOPLE, HE GAVE THEM A
23 PSYCHIATRIC DIAGNOSIS; IS THAT NOT CORRECT?
24 A. THAT'S CORRECT.
25 Q. AND HE DIDN'T GIVE THEM A PAIN DIAGNOSIS; IS THAT
1 CORRECT?
2 A. THAT IS CORRECT.
3 Q. THIS IS A GEROPSYCH UNIT, IT'S NOT A PAIN MANAGEMENT
4 UNIT; IS THAT CORRECT?
5 A. WELL, IT'S CALLED A GEROPSYCHIATRIC UNIT, SO YEAH, SURE.
6 THAT DOESN'T EXCLUDE PAIN MANAGEMENT THOUGH.
7 Q. WELL, I UNDERSTAND.
8 A. OKAY.
9 Q. BUT LET'S GO ON TO ANOTHER QUESTION.
10 YOU TESTIFIED THAT DEMENTIA PROGRESSES TO DELIRIUM IN THE
11 FINAL STAGES. BUT THERE ARE THINGS OTHER THAN DEMENTIA THAT
12 CAN CAUSE DELIRIUM; IS THAT CORRECT?
13 A. THAT IS CORRECT.
14 Q. AN INFECTIOUS PROCESS CAN CAUSE DELIRIUM?
15 A. YES, IT CAN.
16 Q. A BLADDER INFECTION -- WELL, THAT'S AN INFECTIOUS
17 PROCESS.
18 BLADDER RETENTION, URINARY RETENTION CAN CAUSE DELIRIUM?
19 A. YES. AN OVERDISTENDED BLADDER CAN.
20 Q. A BOWEL IMPACTION COULD CAUSE DELIRIUM?
21 A. YES, IT CAN.
22 Q. WHEN YOU TALK ABOUT HOW PEOPLE DIE IN DEMENTIA, YOU SAID
23 INABILITY TO CONTROL SECRETIONS. THAT CAN ALSO BE CAUSED BY
24 OVERSEDATION, THAT A PERSON MIGHT ASPIRATE BECAUSE THE
25 OVERSEDATION OF A EITHER PSYCHOTROPIC OR ANALGESIC MEDICATION
1 CAN CAUSE THEM NOT TO SWALLOW CORRECTLY; ISN'T THAT CORRECT?
2 A. ACTUALLY, IT TURNS OUT THAT ALMOST ALL THE DRUGS THAT
3 WERE USED IN THESE CASES HAD SIGNIFICANT ANTICHOLINERGIC OR
4 DRYING EFFECTS. AND SO, IF ANYTHING, I WOULD SUSPECT THESE
5 PATIENTS' LEVEL OF SALIVATION WOULD HAVE BEEN CONSIDERABLY
6 DIMINISHED OVER TIME. AND SO THE ISSUE OF CONTROLLING
7 SECRETIONS MAY NOT HAVE BEEN SUCH A SIGNIFICANT ISSUE. IN
8 SOME PATIENTS IT IS.
9 AND THERE IS THIS PHENOMENON THAT'S ALMOST UNIVERSAL
10 CALLED DEATH RATTLE THAT IS A CARDINAL MANIFESTATION OF THE
11 DYING PROCESS THAT HAS -- IT'S TOTALLY INDEPENDENT, HAS
12 NOTHING TO DO WITH ANY DRUGS ON BOARD.
13 Q. IS THAT SIMILAR TO THE CHEYNE-STOKING OR IS IT THE SAME
14 THING?
15 A. NO. IT'S TOTALLY DIFFERENT.
16 Q. IT'S DIFFERENT? OKAY.
17 WHEN YOU SAID PAIN IN THE DEMENTED WAS ESTIMATED TO BE IN
18 40 TO 80 PERCENT OF THE POPULATION, THE PROBLEM WITH THAT IS
19 THAT IF PEOPLE CAN'T SELF-REPORT, IT'S DIFFICULT TO SAY
20 THERE'S PAIN; IS THAT CORRECT? I MEAN, YOU HAVE CUES BUT
21 IT'S DIFFICULT TO SAY FOR SURE THAT THERE CUE IS PAIN AS
22 OPPOSED TO A BOWEL IMPACTION OR A BLADDER INFECTION; ISN'T
23 THAT CORRECT?
24 A. WELL, IN FACT, IT'S THE BOWEL -- THE -- WHAT LEADS PEOPLE
25 TO DELIRIUM OFTENTIMES WITH BOWEL IMPACTION IS PAIN. I DON'T
1 KNOW IF YOU'VE EVER BEEN SEVERELY CONSTIPATED BUT --
2 Q. WE WON'T EVEN DISCUSS THAT.
3 A. BUT YOU KNOW, IT'S UNCOMFORTABLE, DISCOMFORTING STATES.
4 IT'S NOT JUST THE FACT THAT YOU'VE GOT FECES IN YOUR RECTUM
5 OR COLON. IT'S THE FACT THAT IT'S BEING BACKED UP AND CAUSES
6 DISTENTION AND ABDOMINAL PAIN.
7 Q. OKAY. SO THAT IS PAINFUL?
8 A. YES.
9 Q. SO YOU TREAT THE IMPACTION? YOU RELEASE WHATEVER IT IS
10 THAT'S CAUSING THE PROBLEM; ISN'T THAT CORRECT, IF YOU CAN?
11 A. IF YOU CAN, SURE.
12 Q. YOU DON'T JUST SAY, OH, THE PERSON HAS GOT A CONSTIPATION
13 PROBLEM, LET'S GIVE THEM MORPHINE TO KEEP THEM COMFORTABLE,
14 DO YOU?
15 A. ACTUALLY, WE USUALLY DO BOTH. WE DON'T JUST --
16 Q. RIGHT.
17 A. -- IF SOMEBODY IS IN PAIN, WE TREAT THE PAIN AND WE ALSO
18 TRY AND ELIMINATE THE UNDERLYING CAUSE, BUT OFTENTIMES THE
19 UNDERLYING CAUSE IS NOT ELIMINATED AND THAT'S WHY THE
20 FUNDAMENTAL PRINCIPLE IN PALLIATIVE CARE IS TO, IN FACT,
21 RELIEVE SYMPTOMS. THAT IS THE PRIMARY GOAL WHEN IN FACT
22 OTHER PROCESSES ARE NOT REVERSIBLE. AND, IN FACT, ONE OF THE
23 PROBLEMS WITH BOWEL IMPACTIONS, AND THIS DOES HAPPEN, IS THAT
24 THE RELIEF OF IT CAN BE AN EXCRUCIATING, EXCRUCIATING
25 PROCESS. AND IF IN FACT THERE'S NO PARTICULAR VALUE IN DOING
1 THAT NEAR END OF LIFE, IT WOULD BE A CRUEL THING TO DO. I
2 MEAN --
3 Q. THAT'S PRESUMING THEY'RE NEAR THE END OF THEIR LIFE;
4 ISN'T THAT CORRECT?
5 A. SURE.
6 Q. RIGHT. NOW, I KNOW THAT MORPHINE HAS BEEN SAID TO BE THE
7 GOLD STANDARD AS IT WERE FOR PAIN MEDICATION, EVERYTHING ELSE
8 KIND OF IS COMPARED TO THAT. BUT ISN'T IT TRUE THAT YOU
9 DON'T NECESSARILY GO DIRECTLY TO MORPHINE FOR ALL PAINS
10 THAT -- WITH ALL PAIN SYMPTOMS? YOU MIGHT START WITH
11 SOMETHING SUCH AS TYLENOL, SEE IF THAT WORKS, LORTAB SEE IF
12 THAT WORKS; ISN'T THAT CORRECT?
13 A. YEAH, IT ALL DEPENDS. I MEAN, IF YOU GIVE ME A SPECIFIC
14 SITUATION I COULD ADDRESS THE QUESTION BETTER.
15 Q. WELL, FOR EXAMPLE, WE HAVE -- LET'S TALK ABOUT MARY
16 CRANE. MARY CRANE IN THE NURSING HOME HAD HAD SOME
17 SYMPTOM -- COMPLAINTS OF PAIN, LET'S PUT IT THAT WAY. I
18 MEAN, SHE COMPLAINED OF A HEADACHE; IS THAT CORRECT?
19 A. LET ME PULL UP THE RECORDS HERE SO I'M TALKING ABOUT THE
20 RIGHT PERSON. BEFORE SHE CAME TO THE NURSING HOME.
21 Q. RIGHT. IN THE NURSING HOME.
22 A. WELL, SHE COMPLAINED OF SEVERAL, SEVERAL KINDS OF
23 PROBLEMS.
24 Q. RIGHT. HEADACHES, LOWER BACK PAIN, THAT SORT OF THING.
25 SHE HAD SOME CHRONIC AND SOME PERHAPS NOT SO CHRONIC
1 COMPLAINTS OF PAIN DURING THE NURSING HOME RECORDS; IS THAT
2 CORRECT?
3 A. YES. THAT'S CORRECT.
4 Q. AND, IN FACT, SHE HAD BEEN ORDERED LORTAB 5 WHICH IS ONE
5 OF THE LOWEST MEDICATIONS -- OR LOWEST PAIN MEDICATIONS;
6 ISN'T THAT CORRECT?
7 A. WELL, HYDROCODONE 5 MILLIGRAMS -- IT'S EQUIVALENT -- WITH
8 TYLENOL IN COMBINATION.
9 Q. AND IN FACT, THERE WAS A POINT IN THE NURSING HOME WHERE
10 THERE WAS SOME CONCERN THAT MAYBE WHAT SHE WAS EXHIBITING OR
11 WAS COMPLAINING OF WASN'T REALLY PAIN, PERHAPS IT WAS
12 ATTENTION GETTING, PERHAPS IT WAS -- OR MAYBE SHE EVEN
13 PERCEIVED IT AS PAIN. BECAUSE WITH THE THALAMIC STROKE
14 SOMETIMES THERE'S A PHANTOM PAIN SYNDROME, ISN'T THERE? OR
15 AM I CONFUSED?
16 A. IT'S CALLED CENTRAL PAIN, CENTRAL PAIN DISORDER.
17 Q. THERE'S NO PHYSICAL CAUSE OF THAT PAIN OTHER THAN THE
18 STROKE, YOU KNOW, A PERSON MAY SAY MY HANDS HURT BUT THERE'S
19 NOTHING PHYSICALLY WRONG WITH THE HAND. IT'S THE STROKE THAT
20 CAUSES THEM TO PERCEIVE PAIN IN THE HAND IS THAT NOT CORRECT?
21 A. YEAH. THAT'S A GOOD DESCRIPTION, SURE.
22 Q. AND WHEN SHE COMPLAINED, IT GOT TO THE POINT WHERE THEY
23 DECIDED TO TRY SOMETHING DIFFERENT, RATHER THAN LORTAB OR
24 TYLENOL, THEY GAVE HER CALCIUM TABLETS; IS THAT CORRECT?
25 A. THAT'S WHAT I'VE BEEN TOLD, YES.
1 Q. AND, IN FACT, SHE OFTEN WOULD RESPOND THAT THAT TOOK CARE
2 OF THE PAIN, THE COMPLAINT WENT AWAY, SHE SAYS, YEAH, MY
3 HEADACHE IS BETTER NOW. DO YOU RECALL THAT?
4 A. THAT'S ALSO WHAT I'VE BEEN TOLD.
5 Q. IF THAT DIDN'T WORK MAYBE THEY WOULD THEN GIVE HER A
6 LORTAB OR TYLENOL AND SEE IF THAT WOULD WORK; ISN'T THAT
7 CORRECT?
8 A. I DON'T KNOW THE EXACT SEQUENCE OF EVENTS AND DETAILS BUT
9 THAT'S WHAT I'VE BEEN -- GENERALLY I THINK THAT'S -- I'LL
10 TAKE THAT, HOW IS THAT?
11 Q. AND THAT'S ACCEPTABLE. YOU START WITH SOMETHING THAT'S
12 THE LEAST RISKY AS FAR AS SIDE EFFECTS; I.E., CALCIUM, SEE IF
13 THAT WORKS. IF IT DOESN'T WORK THEN YOU GO SOMETHING A
14 LITTLE STRONGER THAT MAYBE MIGHT HAVE MORE SIDE EFFECTS, AND
15 YOU KNOW, IF IT WORKS, IT'S SOMETHING WITH LESS RISK, THEN
16 YOU STOP WITH THAT, DON'T YOU?
17 A. IN A CERTAIN CONTEXT. IN THE CONTEXT OF A PERSON WHO'S
18 COOPERATIVE AND CAN COMMUNICATE AND CAN TELL YOU WHAT'S GOING
19 ON WITH THEM.
20 Q. RIGHT.
21 A. THE THING THAT YOU'VE SAID ABOUT BEING ACCEPTABLE,
22 THOUGH, IS THAT GIVING A NONANALGESIC FOR SOMEBODY WHO IS
23 COMPLAINING OF PAIN, AS I SAID, IS CONSIDERED ILLICIT. AND
24 THE REASON BEING THAT THE BRAIN --
25 Q. I DON'T THINK YOU SAID ILLICIT. I THINK YOU SAID
1 UNETHICAL.
2 A. WELL, IT'S UNETHICAL. IT IS ALSO ILLICIT. I MEAN, IT'S
3 AN ILLICIT PROCESS THAT WE KNOW THAT WHEN GIVEN A PLACEBO IF
4 SOMEBODY REALLY BELIEVES OR IS LED TO BELIEVE THAT AN INERT
5 SUBSTANCE WILL, IN FACT, RELIEVE PAIN THAT THE BRAIN -- AND
6 FOR WHAT IT'S WORTH, THE ANTERIOR CINGULATE GYRUS OF THE
7 BRAIN, OF THE FOREBRAIN -- WILL ACTUALLY RELEASE DRUGS THAT
8 ARE VERY MUCH LIKE MORPHINE. THEY'RE, IN FACT, MORPHINE-TYPE
9 COMPOUNDS.
10 Q. BUT THEY DON'T HAVE THE SIDE EFFECTS OF MORPHINE, DO
11 THEY?
12 A. SURE THEY DO. THEY'RE EXACTLY LIKE --
13 Q. WITHIN YOUR OWN BODY?
14 A. YES.
15 Q. BUT IT WORKS, DOESN'T IT?
16 A. WELL, BECAUSE THEY INDUCE ANALGESIA BUT THEY'RE VERY
17 UNPREDICTABLE --
18 Q. BUT IT WORKS, DOESN'T IT?
19 MR. BUGDEN: YOUR HONOR, I THINK HE SHOULD BE
20 ALLOWED TO ANSWER THE QUESTION.
21 MS. BARLOW: EXCUSE ME.
22 THE COURT: I'LL TAKE CARE OF THE COURT. GO AHEAD.
23 MS. BARLOW: GO AHEAD.
24 THE WITNESS: THEY MAY -- THEY SOMETIMES WORK.
25 THEY'RE VERY UNPREDICTABLE AND, IN FACT, WILL LEAD PEOPLE WHO
1 ARE PRESCRIBING THESE IN THAT KIND OF SETTING TO BELIEVE THAT
2 THE PAIN IS, QUOTE, NOT REAL. AND THE PROBLEM IS THAT THAT
3 PHENOMENON MAY BE EXTINGUISHED VERY QUICKLY AS WELL AS TEACH
4 PEOPLE NOT TO COMPLAINT ANY MORE AND TO HARBOR THEIR PAIN OR
5 THEIR SYMPTOMS AND NOT COMPLAIN, SO IT'S A VERY DANGEROUS
6 PRACTICE.
7 Q. (BY MS. BARLOW) BUT YOU DON'T SEE ANY EVIDENCE OF THAT
8 HAPPENING WITH MRS. CRANE IN THE NURSING HOME, DO YOU?
9 A. WELL, I DON'T KNOW. I DON'T KNOW. WHEN YOU SAY
10 EVIDENCE, YOU'D HAVE TO TELL ME, SORT OF SHOW ME THE SEQUENCE
11 OF EVENTS WHERE --
12 Q. WELL, LET'S --
13 A. BUT WHAT I KNOW IS THAT IN THE NURSING HOME SHE CONTINUED
14 TO COMPLAIN OF PAIN AND IT WAS QUESTIONABLE WHETHER THAT PAIN
15 WAS EVER ADEQUATELY TREATED AND THAT HER SYMPTOMS PROGRESSED
16 PRETTY DRAMATICALLY, SO BY THE TIME SHE GOT TO THE
17 GEROPSYCHIATRIC UNIT, HER BEHAVIOR DIDN'T RESEMBLE WHAT HAD
18 BEEN HER PAST CIRCUMSTANCES.
19 Q. BUT THOSE WERE HER PSYCHIATRIC BEHAVIORS, WERE THEY NOT?
20 A. WHAT, THESE FLORID BEHAVIORS?
21 Q. THE ONES THAT GOT WORSE.
22 A. WELL, THEY WERE BEHAVIORAL CIRCUMSTANCES. TO SAY THEY'RE
23 PSYCHIATRIC WOULD MEAN THAT THERE WAS NOTHING ELSE GOING ON
24 THAT WOULD CONTRIBUTE TO THEM. AND I THINK WHAT WE'VE BEEN
25 CONVINCED ABOUT, AT LEAST I THINK I'VE GATHERED FROM THE
1 EVIDENCE, IS IT'S QUITE CONVINCING THERE WAS OTHER -- OTHER
2 THINGS GOING ON THAT WERE CONTRIBUTING.
3 Q. INCLUDING DELIRIUM?
4 A. WELL, BECAUSE PSYCHIATRIC SYMPTOMS DON'T ABATE WITH
5 OPIOIDS IN THE WAY THAT HERS DID.
6 Q. WELL, AND I'M NOT GOING TO STAND HERE AND DISPUTE WITH
7 YOU ABOUT WHAT'S IN THE RECORDS. I THINK WE'VE HEARD WHAT'S
8 IN THE RECORDS.
9 MR. BUGDEN: YOUR HONOR, I DON'T BELIEVE THAT'S A
10 QUESTION.
11 MS. BARLOW: IT ISN'T.
12 THE COURT: ARE YOU GOING TO MAKE AN OBJECTION OR --
13 MR. BUGDEN: OBJECTION. IT'S NOT A QUESTION.
14 THE COURT: SUSTAINED.
15 Q. (BY MS. BARLOW) WHEN YOU TALK ABOUT THE A.M.A. HAVING
16 TENETS ABOUT END-OF-LIFE CARE, THAT'S PRESUMING THAT THE
17 PHYSICIAN HAS NOT, THROUGH HIS ACTIONS, BROUGHT THE PATIENT
18 TO THE END OF LIFE; IS THAT CORRECT?
19 A. THERE IS -- THEY'RE CERTAINLY NOT CAST IN ANY MANNER OTHER
20 THAN TO DIRECT PHYSICIANS ABOUT THEIR OBLIGATIONS IN TREATING
21 THE DYING.
22 Q. AND WITH MARY CRANE WHEN WE HAD THE -- THE EXPERIENCE OR
23 AT LEAST WHAT SHOWS IN THE RECORDS OF HER RECEIVING A CALCIUM
24 PILL AND SAYING THAT THAT HAD HELPED THE PAIN, THAT'S THE
25 WHOLE IDEA OF EVALUATION AND THEN OBSERVATION AND THEN
1 CHANGING, IF NECESSARY, OR NOT CHANGING SOMETHING IF WHAT HAS
2 BEEN DONE WORKED; IS THAT CORRECT?
3 A. I DON'T UNDERSTAND THE QUESTION.
4 THE COURT: YOU NEED TO MOVE ON, MS. BARLOW.
5 MS. BARLOW: OKAY. I'LL DO THAT, YOUR HONOR.
6 Q. (BY MS. BARLOW) NOW, YOU'VE TALKED ABOUT I THINK IT'S
7 DR. LIPMAN, IS IT?
8 A. UH-HUH.
9 Q. AND HE HAD A STUDY OR AT LEAST SOMETHING THAT HE WROTE
10 ABOUT THERE'S NO MAXIMUM DOSE OF MORPHINE?
11 A. THAT'S CORRECT.
12 Q. THAT SOME PEOPLE -- THAT ONE PERSON WOULD HAVE 50 TIMES
13 WHAT SOMEBODY ELSE HAS?
14 A. WELL, LET ME MAKE SURE YOU UNDERSTAND WHAT I WAS SAYING.
15 THAT THE DOSE REQUIREMENTS FOR ANY INDIVIDUAL FOR ANY GIVEN
16 PROBLEM MAY HAVE UP TO 50 FOLD DIFFERENCE IN DOSE
17 REQUIREMENTS. NOT THAT --
18 Q. SO IT'S NOT THE DIFFERENCE BETWEEN PEOPLE, IT'S THE
19 PERSON MAY START AT THIS LEVEL OF PAIN AND THIS LEVEL OF
20 DOSAGES AND YOU MAY INCREASE THE DOSAGE 50 TIMES THAT IF THE
21 PAIN IS NOT TAKEN CARE OF AT A LOWER DOSAGE IS THAT -- AM I
22 UNDERSTANDING NOW?
23 A. I'M NOT SURE.
24 Q. OKAY. LET ME GET TO A QUESTION THEN.
25 ISN'T -- BUT THE 50 FOLD, YOU DON'T START AT THE HIGH END
1 WHEN YOU'RE MANAGING PAIN, DO YOU?
2 A. OH, AT THE ABSOLUTE HIGHEST --
3 Q. RIGHT.
4 A. WELL, SINCE THERE IS NO SUCH THING AS THE HIGHEST END,
5 YOU COULDN'T START THERE.
6 Q. OKAY.
7 A. BUT AS I STATED EARLIER, YOU USUALLY START WITHIN A GIVEN
8 DOSE RANGE SIMILAR TO WHAT OCCURRED IN THESE CASES. AND THEN
9 IF IT'S NOT WORKING, YOU DO DOSE ESCALATE, SURE.
10 Q. WITH JUDITH LARSEN SHE RECEIVED ON THE 25TH OF DECEMBER
11 THREE 2 MILLIGRAM DOSES OF MORPHINE AT 7:30 IN THE MORNING,
12 9:30 IN THE MORNING, AND 11:30 IN THE MORNING. DO YOU RECALL
13 THAT?
14 A. I CAN TAKE TIME TO REVIEW?
15 THE COURT: SURE.
16 THE WITNESS: I HAVEN'T MEMORIZED.
17 MS. BARLOW: SURE.
18 THE WITNESS: I COUNTED, THERE ARE OVER A THOUSAND
19 PAGES OF DOCUMENTS.
20 MS. BARLOW: YOU HAVEN'T BEEN DEALING WITH THEM AS
21 MUCH AS WE HAVE. I UNDERSTAND.
22 THE WITNESS: PROBABLY NOT. WHAT WERE THE DATES
23 AGAIN? I'M SORRY.
24 Q. (BY MS. BARLOW) IT'S THE 25TH OF DECEMBER WITH JUDITH
25 LARSEN, 7:30, 9:30, AND 11:30 IN THE MORNING.
1 A. YES. I RECORDED THAT SHE RECEIVED THREE SEPARATE 2
2 MILLIGRAM DOSES OF MORPHINE.
3 Q. AND THAT APPARENTLY FROM THE NURSE'S NOTE TOOK CARE OF
4 ANY CONCERN, ALTHOUGH THERE WASN'T ANY NOTE OF PAIN THERE, IT
5 TOOK CARE OF ANY CONCERN THAT THE NURSE HAD; IS THAT CORRECT?
6 A. WELL, ACTUALLY THE NOTES I HAVE IS THAT THE PATIENT IS A
7 BIT LESS RESPONSIVE THAN LAST WEEK, SEEMS TO BE IN PAIN WHEN
8 WOKEN AND SO THAT --
9 Q. WELL, I'M TALKING -- I'M TALKING ABOUT THE NURSE'S NOTE,
10 NOT THE DOCTOR'S NOTE.
11 A. THE NURSE'S NOTE.
12 Q. DID YOU WRITE THE NURSE'S NOTE DOWN?
13 A. SHE WAS IN INCONTINENT, SHE WAS MEDICATED WITH MORPHINE.
14 THAT SEEMED ACTUALLY TO INCREASE HER ALERTNESS --
15 Q. RIGHT. AND THAT'S WHAT I'M GETTING AT.
16 A. -- WHICH IS CONSISTENT WITH WHAT I WAS SAYING, PEOPLE
17 ACTUALLY DO BETTER.
18 Q. OKAY. I UNDERSTAND.
19 A. SHE WAS AWAKE, SHE WAS ALERT. BUT THEN LATER WHEN I
20 GUESS WHEN THE DOSE WORE OFF, SHE BECAME RIGID AND TENSE.
21 AGAIN, THOSE ARE PAIN BEHAVIORS CONSISTENT WITH THE DRUG
22 WEARING OFF.
23 Q. BUT HE STARTED AT 2 MILLIGRAMS AT TWO HOURS APART AND
24 THAT WORKED FOR HER; IS THAT CORRECT?
25 A. INITIALLY IT SEEMED TO.
1 Q. AND THEN HE DIDN'T GIVE ANY -- OR HE DIDN'T ORDER ANY
2 MORE BECAUSE THOSE WERE NOW ORDERS, THOSE WERE NOT ROUTINE;
3 IS THAT CORRECT?
4 A. YOU KNOW WHAT? I DON'T HAVE THAT NOTED IN MY NOTES. I
5 DON'T HAVE THE RECORDS WITH ME, SO I'LL HAVE TO TAKE YOUR
6 WORD FOR IT.
7 Q. YOU INDICATED THAT 10 TO -- EXCUSE ME -- 5 TO 10
8 MILLIGRAMS OF MORPHINE WAS TYPICAL FOR ANY ADULT, BUT YOU ARE
9 AWARE THAT GERIATRIC DOSES USUALLY THEY RECOMMEND STARTING
10 LOWER?
11 A. THE GERIATRIC HANDBOOKS AND TEXTS ACTUALLY GIVE THE SAME
12 RANGES AND THERE'S ALWAYS AN ADMONITION IN GERIATRICS TO
13 CONSIDER OTHER ASPECTS OF THE PATIENT THAT MIGHT LEAD THEM TO
14 BE MORE SENSITIVE.
15 Q. FOR EXAMPLE, ELLEN ANDERSON WAS ONLY 81 POUNDS?
16 A. LET ME CHECK ON THAT ONE.
17 YES. SHE LOST 30 PERCENT OF HER BODY WEIGHT BEFORE GOING
18 TO THE HOSPITAL. YEAH. SO SHE WENT FROM 115 TO 81 POUNDS,
19 THAT'S CORRECT, PRIOR TO ADMISSION.
20 Q. AND YOU NEED TO LOOK AT SOMETHING LIKE THAT BEFORE YOU
21 DECIDE HOW LARGE OF A DOSE OF MORPHINE TO GIVE HER; ISN'T
22 THAT CORRECT?
23 A. THAT'S ONE FACTOR. THE OTHER IN HER CASE WAS THAT SHE
24 HAD ALREADY BEEN CHRONICALLY EXPOSED TO OPIOIDS, SO GIVING --
25 GIVING UPPER RANGE OF THE USUAL STARTING DOSE WOULD BE
1 JUSTIFIABLE.
2 Q. WHEN YOU SAY CHRONICALLY EXPOSED, AS YOU LOOK AT THE
3 NURSING HOME RECORDS, SHE WAS NOT RECEIVING EVEN ONE A DAY OF
4 HYDROCODONE OR ANYTHING LIKE THAT, WAS SHE?
5 A. ACCORDING TO THE RECORDS THAT I REVIEWED SHE WAS
6 RECEIVING A NUMBER OF MEDICATIONS INCLUDING AMITRIPTYLINE,
7 AMBIEN FOR SLEEP AS WELL AS PROPOXYPHENE AND HYDROCODONE --
8 Q. THOSE WERE ORDERED --
9 A. -- AS OFTEN AS ONE TO FOUR TIMES A DAY SINCE JUNE OF
10 1995. THAT'S WHAT I HAVE RECORDED IN MY --
11 Q. RIGHT.
12 A. I DON'T HAVE THE RECORDS WITH ME BUT THAT'S WHAT I
13 EXTRACTED.
14 Q. LET'S TALK ABOUT MR. ALLDREDGE JUST BRIEFLY. YOU
15 INDICATED HE HAD MY MYCOSIS FUNGOIDES, WHICH IS A SKIN
16 CANCER; IS THAT NOT CORRECT?
17 A. IT'S A LYMPHOMA.
18 Q. WHICH IS ON THE SKIN?
19 A. IT INVOLVES SKIN BUT IT CAN ALSO INVOLVE OTHER ORGANS.
20 Q. AND HE HAD BEEN TREATED FOR THAT?
21 A. PRESUMABLY. I DID NOT -- I LOOKED FOR AND COULD NOT FIND
22 TREATMENT RECORDS ACTUALLY FOR HIS MYCOSIS FUNGOIDES.
23 Q. AND THE RECORDS ESPECIALLY WHAT HIS WIFE TOLD THE
24 HOSPITAL IS THAT THIS HAD BEEN CURED, HE WAS NOT SUFFERING
25 FROM IT AT THAT POINT, WAS HE?
1 A. I COULDN'T ANSWER THAT QUESTION.
2 Q. YOU INDICATED THERE WAS EARLY KIDNEY FAILURE; IS THAT
3 CORRECT?
4 A. YES.
5 Q. AND, IN FACT, RENAL FUNCTION IMPACTS HOW A PERSON
6 EXCRETES OR METABOLIZES OR GETS RID OF PSYCHOTROPIC OR
7 ANALGESIC MEDICATIONS; IS THAT NOT TRUE?
8 A. IT AFFECTS HOW MOST DRUGS ARE CLEARED. THERE ARE A FEW
9 THAT CAN ACCUMULATE THAT DOESN'T MATTER PARTICULARLY. BUT
10 KIDNEYS ARE VERY IMPORTANT IN ELIMINATING DRUGS, SURE.
11 Q. AND IF THE KIDNEYS AREN'T WORKING WELL, THE DRUGS
12 PROBABLY AREN'T ELIMINATED AS QUICKLY AS IN A NORMAL ADULT;
13 IS THAT CORRECT?
14 A. IT DEPENDS ON THE DRUG AND IT DEPENDS UPON THE AMOUNT OF
15 RENAL INSUFFICIENCY. BUT I THINK IT'S FAIR -- IT IS A FAIR
16 STATEMENT TO SAY THAT AS RENAL FUNCTION DECLINES THERE WILL
17 BE AT LEAST ACCUMULATION OF DRUG METABOLITES. MOSTLY THESE
18 DRUGS ARE METABOLIZED AND SOME HAVE ACTIVE METABOLITES AND
19 SOME DON'T AND IT WOULD BE ACTIVE METABOLITES THAT WOULD BE
20 RETAINED.
21 Q. WHICH IF THEY WERE ACTING (SIC) METABOLITES MIGHT
22 LENGTHEN THE DURATION OF THE EFFECT OF THE DRUGS BECAUSE IT'S
23 STILL IN THE SYSTEM BECAUSE THE KIDNEYS HAVE NOT FLUSHED IT
24 OUT; IS THAT CORRECT?
25 A. THAT'S TRUE. AND IN 1995, WITH RESPECT TO THESE DRUGS, I
1 DARE SAY PROBABLY ABOUT THREE PEOPLE IN THE UNITED STATES
2 KNEW THAT MORPHINE HAD ACTIVE METABOLITES. THAT WAS A VERY
3 NEW FINDING. IT ONLY STARTED BEING DISCUSSED IN THE CLINICAL
4 PAIN WORLD IN THE LATE 1990S.
5 Q. DO YOU RECALL THAT MR. ALLDREDGE RECEIVED I THINK IT WAS
6 12 MILLIGRAMS OF ATIVAN THE DAY BEFORE HE WAS TRANSFERRED TO
7 THE GEROPSYCH UNIT?
8 A. LET'S SEE, I HAVE -- YES. HE HAD A NUMBER OF MEDICATIONS
9 GIVEN AND ATIVAN -- YES, INTRAMUSCULAR ATIVAN WAS ONE OF
10 THEM. UH-HUH.
11 Q. AND WHEN HE CAME ONTO THE UNIT, ONE OF THE FIRST ORDERS
12 FROM THE DEFENDANT WAS TO GIVE HIM ATIVAN AND HALDOL. DO YOU
13 RECALL THAT?
14 A. THE ADMITTING ORDERS WERE TO GIVE ATIVAN 1 MILLIGRAM PLUS
15 HALDOL 10 MILLIGRAMS.
16 Q. AND THEN AT 9 O'CLOCK THAT NIGHT WHEN DR. DIENHART CAME
17 IN TO DO THE HISTORY AND PHYSICAL -- WHO IS AN INTERNIST, BY
18 THE WAY -- TO DO THE HISTORY AND PHYSICAL ON MR. ALLDREDGE,
19 FOUND HIM TO BE LETHARGIC AND UNRESPONSIVE TO PAINFUL
20 STIMULI; IS THAT CORRECT?
21 A. WELL, AROUND THAT PERIOD THE NURSES DESCRIBED HIM AS
22 BEING -- AS DISROBING, REFUSING FOOD, CRYING LOUDLY AND
23 FREQUENTLY --
24 Q. THANK YOU. BUT I'M --
25 THE COURT: WAIT A MINUTE, LET HIM FINISH.
1 MS. BARLOW: WELL, EXCEPT HE'S NOT RESPONSIVE TO MY
2 QUESTION.
3 THE COURT: WELL, HE COULD --
4 THE WITNESS: I'M SORRY?
5 THE COURT: STOP AND LET HER ASK THE QUESTION.
6 THE WITNESS: SORRY.
7 Q. (BY MS. BARLOW) THE QUESTION WAS: DID YOU SEE
8 DR. DIENHART'S NOTE THAT AT 9 O'CLOCK THAT NIGHT HE WAS
9 LETHARGIC AND UNRESPONSIVE TO PAINFUL STIMULI?
10 A. LET'S SEE THE -- WELL, THE DESCRIPTIONS I HAVE FROM
11 DR. DIENHART ARE THAT HE HAD -- I BELIEVE THIS IS FROM HIS
12 NOTES; THAT THERE WAS AGITATION, ASSAULTIVE BEHAVIOR,
13 PSYCHOSIS, BITING, KICKING, THAT HE WAS RESTRAINED IN A GERI
14 CHAIR. AND THAT AT THE TIME THAT HE EXAMINED HIM, THERE WERE
15 CHEYNE-STOKES RESPIRATIONS, POOR GAG REFLEX AND DIMINISHED
16 BREATH SOUNDS. BUT SURROUNDING THAT EXAMINATION WERE ALL
17 THESE OTHER DESCRIPTIONS OF THE PATIENT BEING VERY WILD AND
18 POORLY CONTROLLED.
19 Q. RIGHT.
20 A. AND SO THIS WAS ALL SORT OF -- THE PICTURE I GOT BECAUSE
21 THESE HAPPENED WITHIN VERY NARROW TIME TIMES WAS OF A VERY
22 VOLATILE, HIGHLY LABILE INDIVIDUAL WHO WAS REALLY GOING
23 THROUGH ANYTHING FROM BEING VERY STUPOROUS TO VERY AGGRESSIVE
24 AND VERY WILD WITH EXACTLY THE SAME DRUGS ON BOARD. AND THAT
25 IF HE HAD REMAINED SEDATED, IT PROBABLY -- IT CERTAINLY WOULD
1 HAVE CHANGED THE CARE BECAUSE THE ORDERS WERE WRITTEN IN
2 RESPONSE TO THE AGITATION IN THIS REALLY VERY DANGEROUS FOR
3 HIMSELF AND ALL THOSE AROUND HIM BEHAVIORS.
4 Q. THANK YOU.
5 NOW, THE LIVING WILL THAT YOU READ IS IN THE NURSING HOME
6 RECORDS; ISN'T THAT CORRECT?
7 A. I BELIEVE -- I BELIEVE THAT'S WHERE I EXTRACTED THAT
8 FROM, YES.
9 Q. AND THEY WERE NOT TRANSMITTED TO OR AT LEAST DO NOT SHOW
10 UP IN THE MEDICAL RECORDS, THE HOSPITAL RECORDS THAT
11 DR. WEITZEL HAD ACCESS TO?
12 A. I COULDN'T ANSWER THAT QUESTION AS I SIT HERE.
13 Q. AND IF THEY WERE NOT IN THE HOSPITAL RECORDS, THEN
14 CLEARLY THE DEFENDANT COULD NOT HAVE BEEN RELYING ON THEM; IS
15 THAT CORRECT?
16 A. WELL, YOU KNOW, I WASN'T THERE BUT I -- THE ONLY OTHER
17 SOURCE WOULD HAVE BEEN IF SOCIAL WORKERS AND THE OTHER
18 THERAPISTS OR FAMILY HAD COMMUNICATED THOSE, THOSE WISHES.
19 Q. WHEN YOU TALKED ABOUT --
20 A. ACTUALLY, MAYBE I SHOULD GO BACK AND REVIEW BEFORE I --
21 BECAUSE I DO RECALL THAT IN THE INTAKE AT THE GEROPSYCH UNIT
22 THERE WERE COMMENTS FROM THE SOCIAL WORKER AND NURSING ABOUT
23 SOME OF THESE SORTS OF THINGS. SO I'M NOT -- I DON'T WANT TO
24 GIVE YOU AN ANSWER THAT'S NOT ACCURATE.
25 WELL, INSTEAD OF ME DIGGING AROUND, I'LL JUST LEAVE IT AT
1 THAT.
2 Q. THANK YOU.
3 MARY CRANE. WHEN THE FISTULA WAS FOUND, YOU'VE BEEN
4 ASKED ABOUT CIPRO AND KEFLEX AS BEING APPROPRIATE ANTIBIOTICS
5 TO TREAT WHATEVER PROBLEM WAS CAUSING THE FISTULA; IS THAT
6 CORRECT?
7 A. WHAT I SAID I THINK WAS THAT THEY WERE FINE. I'M NOT
8 SURE THERE WAS ANYTHING PARTICULARLY BETTER.
9 Q. RIGHT. AND AS YOU LOOK AT THE RECORDS, THOUGH, THE
10 URINARY TRACT INFECTION WAS FOUND ON THE 30TH OF DECEMBER OR
11 AT LEAST THAT'S WHEN THE CIPRO WAS ORDERED; IS THAT CORRECT?
12 A. LET'S SEE DECEMBER 30TH URINALYSIS SHOWS U.T.I., R.X.
13 CIPRO FOR U.T.I., CIPRO FOR U.T.I., DISCONTINUED DIOZIDES AND
14 THAT'S ALL I HAVE NOTED SPECIFIC TO THAT DATE FOR THAT.
15 Q. AND THAT WAS A THREE-DAY REGIMEN STARTING ON THE 30TH?
16 A. YOU KNOW, I DIDN'T -- I DIDN'T WRITE DOWN WHAT THE
17 DURATION OF TREATMENT WAS.
18 Q. IF IT WERE A THREE-DAY REGIMEN THE 30TH, 31ST -- SO THE
19 1ST OF JANUARY WOULD HAVE WITHIN THE LAST DOSAGE OF THE
20 CIPRO?
21 A. IF -- I'LL TAKE IT FOR YOUR WORD THAT THAT'S WHAT WAS
22 ORDERED. I DON'T HAVE THAT WRITTEN DOWN.
23 Q. AND THE FISTULA WAS DISCOVERED ON THE 2ND OF JANUARY?
24 A. I'M TRYING TO FIND WHEN IT WAS -- WHEN IT WAS FIRST
25 OBSERVED IF THERE WAS FECES COMING FROM HER VAGINA AND
1 DR. MEEKS WAS CALLED TO EVALUATE IT.
2 Q. RIGHT.
3 A. BUT I'M HAPPY TO TAKE YOUR WORD FOR IT IF THE DATE WAS
4 THE DATE, SURE.
5 Q. OKAY. THE 5TH OF JANUARY WAS WHEN THE KEFLEX WAS
6 ORDERED; IS THAT CORRECT?
7 A. IT SURE WOULD BE EASIER IF YOU SHOWED ME THE RECORDS
8 WHERE YOU'RE -- BECAUSE I COULD JUST TELL YOU, YES IT'S HERE
9 OR NOT HERE.
10 Q. LET ME JUST ASK IT THIS WAY: IF A BROAD-SPECTRUM
11 ANTIBIOTIC IS RECOMMENDED, WE'RE TALKING ABOUT SOMETHING --
12 NOT JUST ONE ANTIBIOTIC BUT MORE THAN ONE IN CONJUNCTION, ONE
13 TO HANDLE THE GRAM POSITIVE, ONE TO TREAT THE GRAM NEGATIVE,
14 AND ONE TO TREAT THE ANAEROBIC INFECTIONS, THAT MIGHT BE
15 POSSIBLE; ISN'T THAT CORRECT?
16 A. PRESUMABLY, YEAH.
17 Q. IF YOU TOOK THREE DIFFERENT ANTIBIOTICS YOU WOULD WANT TO
18 GIVE THEM TOGETHER TO ATTACK THAT INFECTION, WOULD YOU NOT?
19 A. WELL, NOT NECESSARILY. CIPRO IS ACTUALLY A BROAD ENOUGH
20 SPECTRUM ANTIBIOTIC THAT IN AND OF ITSELF MAY BE ADEQUATE FOR
21 ALL OF THE SYMPTOMS THEY WERE TRYING TO MANAGE.
22 Q. BUT IT ATTACKS GRAM POSITIVE AND WHAT HAD COME OUT OF
23 THIS WAS A GRAM NEGATIVE, ISN'T IT?
24 A. CIPRO IS ALSO EFFECTIVE ON GRAM NEGATIVE ORGANISMS. IF
25 YOU'VE BEEN TOLD OTHERWISE, YOU'VE BEEN MISLED BY SOMEBODY.
1 Q. YOU'RE NOT AN INTERNIST?
2 A. NO. NO.
3 Q. THAT'S NOT YOUR SPECIALTY?
4 A. NO.
5 Q. AND SO DID YOU IN LOOKING AT THIS THINK PERHAPS THERE'S
6 SOME DISEASE PROCESS GOING ON IN THE ABDOMEN THAT MIGHT BE
7 CAUSING THIS FISTULA?
8 A. WELL, IT'S HARD TO KNOW. OFTENTIMES THE ROOT CAUSE OF
9 THIS MAY NOT BE FOUND. BUT CERTAINLY CANCER CAN BE A CAUSE,
10 THERE MAY BE INFECTIOUS CAUSES, THERE MAY BE OTHER FORMS OF
11 GROWTHS OR MASSES OR MECHANICAL CAUSES.
12 Q. AND THESE CAUSES COULD BE TREATED?
13 A. WELL, ACCORDING TO THE SURGEON OR THE O.B.G.Y.N. SURGEON
14 WHO EVALUATED HER -- AND AGAIN, IN THE CONTEXT OF HER
15 PROGRESSIVE ILLNESS, I THINK THAT THE TREATMENT THAT WAS
16 RECOMMENDED WAS ACTUALLY CARRIED OUT, WHICH WAS TO TRY AND
17 KEEP HER CLEAN AND DRY AND USE ANTIBIOTICS TO PREVENT
18 SUPERINFECTION. BUT THESE ARE ALSO OFTENTIMES ULCERATIVE
19 LESIONS NOT UNLIKE YOU MIGHT GET IN YOUR MOUTH THAT HAS NO
20 UNDERLYING BACTERIAL CAUSE THAT ARE EXTRAORDINARILY PAINFUL.
21 AND THE SURGEON BASICALLY AT THAT POINT SAID THAT SURGERY WAS
22 NOT TO BE RECOMMENDED AND THAT WAS ACTUALLY CONSISTENT WITH I
23 THINK THE CONTEXT OF HER CARE. THAT WOULD HAVE PROBABLY BEEN
24 A MORE OF INJURIOUS THAN A HELPFUL THING TO PUT HER THROUGH.
25 Q. I THINK WHAT DR. MEEK WROTE WAS THAT HE RECOMMENDED THAT
1 THERE BE A CONSULT WITH THE INTERNIST TO SEE IF SURGERY WOULD
2 BE A PROPER THING TO DO OR TO DO THE OTHER, ISN'T THAT WHAT
3 HE SAID?
4 A. WELL, THE PROPER THING ACTUALLY TO DO WOULD HAVE BEEN TO
5 CALL AN ANESTHESIOLOGIST BECAUSE WE'RE THE ONES WHO HAVE TO
6 TAKE CARE OF PATIENTS LIKE -- WE ARE THE INTERNIST, IF YOU
7 WILL, IN THE PERIOPERATIVE PERIOD. INTERNISTS NEVER GO INTO
8 OPERATING ROOMS AND TAKE CARE OF PATIENTS IN THAT SETTING. SO
9 THAT MAY HAVE BEEN WHAT HE HAD SAID BUT THE -- I THINK THE
10 MEANING BEHIND THAT WAS, IS THE WOMAN HEALTHY ENOUGH TO
11 SUSTAIN A SURGICAL PROCEDURE.
12 Q. RIGHT. EXACTLY.
13 A. AND IN MY EVALUATION OF THESE RECORDS, IT WAS A
14 WELL-CONCEIVED CONCLUSION THAT NO, SHE WAS NOT AND THAT WOULD
15 HAVE ACTUALLY BEEN FAR MORE BURDENSOME AND PROBABLY HASTENED
16 HER DEATH SO --
17 Q. ISN'T THAT SOMETHING YOU WOULD WANT TO TALK OVER WITH THE
18 FAMILY, THOUGH?
19 A. PROBABLY.
20 Q. WITH MRS. ANDERSON, SHE CAME IN WITH A DIAGNOSIS OF
21 ANXIETY; ISN'T THAT CORRECT?
22 A. YOU'RE JUMPING FROM PATIENT TO PATIENT SO GIVE ME A
23 MOMENT HERE.
24 Q. THAT'S FINE.
25 A. SHE CAME IN WITH A NUMBER OF DIAGNOSES. THE QUESTION IS,
1 IS ANXIETY ONE OF THEM?
2 Q. RIGHT.
3 A. YES. NEW ONSET AND SEVERE ANXIETY.
4 Q. AND, IN FACT, DURING THE WHOLE TIME, THE 17 HOURS THAT
5 MRS. ANDERSON WAS IN THE HOSPITAL, SHE CAME IN AT 4 O'CLOCK
6 IN THE EVENING, THE DEFENDANT NEVER DID ANY HANDS-ON
7 EVALUATION WITH HER, DID HE?
8 A. AS FAR AS I'VE BEEN LED TO UNDERSTAND NO, DR. WEITZEL WAS
9 NOT PRESENT AT HER BEDSIDE IN DOING EVALUATION.
10 Q. WAS MRS. LARSEN TERMINAL UPON ADMISSION?
11 A. SAY AGAIN.
12 Q. WAS MRS. LARSEN TERMINAL ON ADMISSION?
13 THE COURT: IS THIS ANOTHER PERSON WE'RE TALKING
14 ABOUT?
15 MS. BARLOW: YES. MRS. LARSEN.
16 THE COURT: YOU'VE SKIPPED TO MRS. LARSEN NOW?
17 MS. BARLOW: YES. I'M TRYING TO GO IN THE SAME
18 ORDER THAT MR. BUGDEN DID, YOUR HONOR.
19 THE COURT: YOUR TRANSITION WAS A LITTLE ROUGH
20 THERE.
21 MS. BARLOW: SORRY.
22 THE WITNESS: I'M GETTING THERE. NOW I UNDERSTAND
23 WHERE THE TERM DOG-EARED PAGES COME FROM. SAY THE QUESTION
24 AGAIN I'M SORRY.
25 Q. (BY MS. BARLOW) WAS MRS. LARSEN TERMINAL UPON ADMISSION?
1 A. YES. I BELIEVE INDEED SHE WAS.
2 Q. AND SHE LIVED FOR 28 DAYS ON THE UNIT?
3 A. LET'S SEE, ADMITTED THE 6TH OF DECEMBER AND DIED THE 3RD,
4 IF THAT EQUALS 28 DAYS, SURE.
5 Q. EACH ONE OF THESE PEOPLE YOU CONSIDERED TO BE TERMINAL
6 UPON ADMISSION; I.E., SHE HAD A SHORT -- NOT SIX MONTHS BUT A
7 VERY SHORT PERIOD OF TIME LEFT TO LIFE LIVE BECAUSE OF THEIR
8 DISEASE PROCESSES; IS THAT CORRECT?
9 A. WELL, I MEAN, AGAIN, THE ONLY -- THE ONLY OPERATIONAL
10 DEFINITION OF TERMINAL ILLNESS IS THE ONE I PRESENTED AND SO
11 ANY OTHER OPINION I GAVE OR ANYBODY ELSE WOULD -- WOULD
12 TESTIFY TO WOULD BE IDIOSYNCRATIC AND PERSONAL AND WOULD HAVE
13 NO BEARING ON ANY NORMATIVE STANDARDS SO --
14 Q. I BELIEVE YOU SAID --
15 A. SO I CAN GIVE YOU ALL SORTS OF PERSONAL OPINIONS ABOUT
16 TERMINAL BUT THEY DON'T -- BUT THERE IS NO BASIS FOR THEM
17 OTHER THAN DEFINITION.
18 Q. I CAN'T FIND IT HERE BUT I THINK YOU SAID SOMETHING ALONG
19 THE LINES YOU THOUGHT THEY ALL HAD A SHORT PERIOD OF TIME TO
20 LIVE --
21 A. YEAH. THEY ALL HAD --
22 Q. -- WHEN THEY CAME ON THE UNIT.
23 A. -- I THINK LIMITED LIFE EXPECTANCY IS PROBABLY THE
24 CATCH-ALL PHRASE I WOULD USE TO DESCRIBE THESE PATIENTS.
25 Q. BUT THE DEFENDANT DID NOT INDICATE THAT THAT WAS HIS
1 EVALUATION UPON ADMISSION OF ANY OF THESE PATIENTS, DID HE?
2 A. CONSISTENT WITH ACTUALLY MORE THAN 90 PERCENT OF PEOPLE
3 WHO DIE IN A HOSPITAL THAT THE --
4 Q. BUT THE QUESTION IS: HE DID NOT SAY THAT? HE DID NOT
5 MAKE THAT DIAGNOSIS ANYWHERE IN THESE RECORDS, DID HE?
6 A. THAT'S WHAT I WAS TRYING TO ANSWER, THAT WAS CONSISTENT
7 WITH HOW MEDICINE WAS PRACTICED IN 1995, IT WAS -- IT WOULD
8 BE VERY RARE TO EVER FIND ANYBODY SAYING THIS PATIENT IS
9 GOING TO DIE DURING THIS HOSPITALIZATION. IT JUST DIDN'T
10 HAPPEN. AND IN FACT, TODAY IT STILL DOESN'T HAPPEN.
11 Q. AND, IN FACT, HE HAD INDICATED IN THE PSYCHOLOGICAL
12 EVALUATION OF EACH OF THESE PATIENTS THAT THEY WOULD STAY AT
13 THE HOSPITAL TWO TO THREE WEEKS AND THEN WOULD GO BACK TO
14 THEIR LONG-TERM CARE FACILITY; IS THAT CORRECT?
15 A. I THINK THAT WAS THE HOPE AND THE EXPECTATION.
16 Q. THAT WAS HIS DIAGNOSIS. THAT WAS HIS EXPECTATION AS
17 YOU'VE SAID?
18 A. WELL, IT'S NOT SO MUCH A DIAGNOSIS AS A CARE -- A
19 DISPOSITION PLAN. THAT WAS THE HOPE, SURE.
20 Q. AND DURING THE COURSE OF THE STAY, EACH OF THESE PATIENTS
21 AT THE HOSPITAL THEY DID DEVELOP SOMETHING THAT CLEARLY LED
22 TO THEIR DEATH; IS THAT CORRECT?
23 A. WELL, I THINK WHAT WE SAW WAS A PROGRESSION OF THEIR
24 DISEASE THAT LED THEM TO BE ADMITTED IN THE VERY FIRST PLACE.
25 THEY WEREN'T ADMITTED ON A WHIM. THEY WERE DEMONSTRATING ALL
1 THESE SIGNS AND SYMPTOMS THAT MEANT SOMETHING ELSE WAS GOING
2 ON AND HE CAUGHT THEM SORT OF IN THIS -- YOU KNOW, AT THIS
3 MOMENT IN TIME IN THIS PROGRESSION OF THEIR DISEASE
4 PROCESSES. AND CERTAINLY ONCE THEY WERE ADMITTED AND UNDER
5 CARE AND UNDER EVALUATION, THEIR PROCESSES STARTED TO
6 MANIFEST WHERE THEY GOT SICK ENOUGH TO DIE. AND AS THEY
7 BECAME SICK ENOUGH TO DIE, WHAT HAPPENED WAS HE TREATED THEIR
8 SYMPTOMS AND SURE ENOUGH THEY PROGRESSED TO DIE. SO THAT I
9 THINK IS SORT OF A SUMMARY OF WHAT OCCURRED.
10 Q. AND THESE FIVE PEOPLE IN A 10-BED UNIT IN A 16-DAY PERIOD
11 THEY ALL DEVELOPED TO THE POINT OF DEATH?
12 A. WELL, SURE. YOU KNOW WHEN I FIRST REVIEWED THE RECORDS
13 FOR YOU AND WE TALKED AT MY DINING ROOM TABLE, I TOLD YOU, I
14 THINK, THAT WHEN I HAD BEEN TOLD OF THIS IT CERTAINLY AROUSED
15 MY SUSPICIONS AND THAT'S WHY I AGREED INITIALLY TO REVIEW
16 THESE CASES, AND MORE LIKELY THAN NOT I THOUGHT AT THE TIME,
17 TESTIFY ON BEHALF OF THE PROSECUTION. BUT THE EVIDENCE
18 PRESENTED IN THE RECORDS DID NOT SPEAK TO THAT THEORY.
19 Q. IN YOUR MIND?
20 A. PARDON ME?
21 Q. IN YOUR MIND?
22 A. WELL, NO. YOU KNOW, AS AN EXPERT EVALUATING THE RECORDS,
23 WHICH IS WHAT YOU HAD ME DO, THERE WAS NO EVIDENCE SUGGESTIVE
24 OF ANYTHING OTHER THAN STANDARD OF CARE FOR ALL THESE CASES.
25 AND SO HOW IN GOOD CONSCIENCE COULD I POSSIBLY AGREE IF
1 THINGS MET THE STANDARD OF CARE TO TESTIFY ON BEHALF OF A
2 CRIMINAL CASE? YOU KNOW, THERE WAS NO LOGIC TO THAT.
3 Q. WELL, AND LET'S PURSUE THAT A LITTLE BIT. YOU AGREE WITH
4 THE UTAH MEDICAL ASSOCIATION RESOLUTION THAT DOCTORS SHOULD
5 NOT BE CRIMINALLY PROSECUTED? IN FACT, YOU'VE TOLD US THAT
6 DAY WHEN YOU MET WITH US THAT YOU DIDN'T THINK DOCTORS SHOULD
7 BE CRIMINALLY PROSECUTED FOR THE STANDARD -- FOR THE CARE
8 THAT THEY ADMINISTER TO PATIENTS; IS THAT CORRECT?
9 A. THERE WAS SORT OF TWO QUESTIONS THERE. YOU SAID
10 SOMETHING ABOUT THE U.M.A.
11 Q. ARE YOU FAMILIAR WITH THE U.N.A. RESOLUTION ABOUT THE
12 CRIMINAL -- THEY CALL IT THE CRIMINALIZATION OF MEDICAL CARE?
13 A. I'M AWARE THAT EARLIER THIS MONTH A DOCUMENT WAS RATIFIED
14 OR AGREED TO REGARDING THE USE OF OPIOIDS AND ISSUES AROUND
15 CRIMINALIZATION.
16 Q. ACTUALLY, IT'S NOT THE OPIATES. IT'S A SEPARATE ONE.
17 I'M JUST -- THE CRIMINALIZATION.
18 A. OKAY.
19 Q. LET ME ASK THE QUESTION THIS WAY: DID YOU NOT TELL US ON
20 THE 26TH OF APRIL OF 2000 THAT YOU DID NOT BELIEVE THAT
21 DOCTORS' CARE SHOULD EVER BE CRIMINALIZED?
22 A. WELL, IF I -- IF I SAID ANYTHING SORT OF THAT, HAD WORDS
23 LIKE THAT, IT WOULD HAVE BEEN THAT IF SOMETHING MEETS A
24 STANDARD OF CARE, HOW COULD IT POSSIBLY PROGRESS TO A LEVEL
25 OF BEING CRIMINAL, THAT THAT WAS INCONSISTENT. AND SO I
1 COULD NOT TESTIFY AND SUPPORT THE PROSECUTION'S CASE AS AN
2 EXPERT IN A CRIMINAL CASE WHERE THE CARE BASICALLY MET THE
3 STANDARD OF CARE.
4 Q. AND, IN FACT, YOU TOLD US THAT THIS MET WITH THE STANDARD
5 OF CARE BECAUSE THE STANDARD OF CARE, ESPECIALLY AMONG UTAH
6 PHYSICIANS FOR END-OF-LIFE CARE, WERE VERY, VERY POOR; ISN'T
7 THAT CORRECT?
8 A. WELL, AGAIN, THE STANDARD OF CARE IS A BROAD RANGE OF
9 BEHAVIORS AND PRACTICES. FROM ONE EXTREME TO THE OTHER ARE
10 VIEWED AS ACCEPTABLE. AND, FOR INSTANCE, IN A PATIENT -- A
11 PATIENT SUCH AS THIS IN 1995, THE STANDARD OF CARE, IF YOU
12 WILL, COULD HAVE BEEN ANYTHING FROM LYING IN AN I.C.U. WITH
13 TUBES AND HOSES AND BEING ON A VENTILATOR FOR 10 DAYS UNTIL
14 THE PATIENT EXPIRED, OR COULD HAVE MET THE GOLD STANDARD,
15 WHICH WOULD HAVE BEEN TO ADMIT TO A HOSPICE PROGRAM, ALTHOUGH
16 IN DAVIS COUNTY THERE WAS VERY, VERY LITTLE IN THE WAY OF
17 HOSPICE AND -- IN FACT, UTAH WAS ONE OF THE LOWEST
18 UTILIZATION OF HOSPICE IN THE COUNTRY AT THAT POINT. AND SO
19 HERE'S THIS WHOLE RANGE OF ACCEPTABLE PRACTICES.
20 I WOULDN'T SAY THAT THEY WERE -- THIS WOULD BE THE BEST
21 PRACTICES. I WOULD SAY, YOU KNOW, THAT THE GOLD STANDARD IS
22 THE BEST PRACTICE BUT THERE WAS LITTLE OF IT BEING PRACTICED.
23 SOMEWHERE IN THE MIDDLE OF THIS IS WHAT MOST OTHER DOCTORS
24 WERE DOING. AND THE REASON FOR THAT IS EASILY EXPLAINED BY
25 THE FACT THAT THERE'S NO FORMAL EDUCATION IN ANY OF THESE
1 PROCESSES IN MEDICAL SCHOOL OR AFTER MEDICAL SCHOOL. EVERY
2 DOCTOR IS DOING THEIR BEST TO FIGURE OUT HOW TO DO THIS.
3 Q. MAY I INTERPOSE ANOTHER QUESTION -- IN FACT, MAY I
4 INTERPOSE THE SAME QUESTION:
5 DIDN'T YOU TELL US IN 2000 THAT THE VAST MAJORITY OF
6 DOCTORS IN UTAH DID NOT GIVE APPROPRIATE END-OF-LIFE CARE?
7 A. ACTUALLY, I THINK I SAID IN SEVERAL SENTENCES WHAT I JUST
8 SAID AND THEN CONCLUDED THAT BECAUSE OF THAT, IT LED -- IT
9 WAS UNDERSTANDABLE WHY THE STANDARD OF CARE, OR IF YOU WILL,
10 THE QUALITY OF CARE FOR PATIENTS DYING IN THE STATE OF UTAH
11 WAS ALMOST UNIVERSALLY POOR AND THERE WAS ROOM FOR
12 SIGNIFICANT IMPROVEMENT.
13 Q. THEN LET'S TALK ABOUT THAT. THERE'S STANDARD OF CARE AND
14 QUALITY OF CARE; ISN'T THAT CORRECT? YOU'VE TALKED ABOUT
15 THEM AS TWO SEPARATE THINGS.
16 A. WELL, I -- I DON'T KNOW HOW TO ANSWER THAT. I'M
17 ATTRIBUTING ONE TO THE OTHER. AGAIN, QUALITY HAS A RANGE AS
18 WELL. SORRY. I'M JUST NOT SURE HOW TO ANSWER THAT QUESTION.
19 Q. THAT'S FINE. THANK YOU.
20 NOW, YOU INDICATED YOU WORKED FOR VISTA CARE OR YOU
21 WORKED WITH VISTA CARE OR YOU HAVE SOME AFFILIATION WITH
22 VISTA CARE; IS THAT CORRECT?
23 A. YES.
24 Q. IN FACT, YOU HAVE EDITED A DOCUMENT OR A MANUAL CALLED
25 THE PROCESSES TO OPTIMIZE CARE DURING THE LAST PHASE OF LIFE;
1 IS THAT CORRECT?
2 A. SURE.
3 Q. AND I WON'T SPEND A LOT OF TIME WITH THIS BUT I WANTED TO
4 JUST ADDRESS SOME OF THE MATERIAL IN HERE THAT I ASSUME YOU
5 EITHER WROTE OR YOU EDITED IN SOME FASHION; IS THAT CORRECT?
6 A. WELL, THIS IS A MANUAL THAT I WROTE TO HELP DIRECT
7 HOSPICE NURSES TO PRACTICE BASICALLY BEDSIDE CARE FOR HOME
8 BASED HOSPICE PATIENTS, SO THAT'S THE INTENT OF THAT MANUAL.
9 Q. AND YOU PREPARED A FLOW CHART ABOUT THE ESSENTIAL STEPS
10 THAT NEED TO BE FOLLOWED OR AT LEAST CONSIDERED IN THE
11 PROCESS OF CARING FOR PATIENTS, THE FIRST WAS EVALUATIONS;
12 ISN'T THAT CORRECT?
13 A. THAT'S CORRECT.
14 Q. INCLUDING TOOLS, A HISTORY, PHYSICAL EXAM, LABS, IMAGING,
15 OTHER TESTS; IS THAT CORRECT?
16 A. I -- TRUST MY MEMORY FOR SOME -- BECAUSE THAT IS FOUR
17 YEARS AGO, I THINK, I WROTE THAT BUT IT SOUNDS ABOUT RIGHT.
18 Q. THEN YOU'D GO TO UNDERSTANDING THE PATIENT THE CONTEXT
19 AND THE FAMILY --
20 THE WITNESS: COULD IT -- IS IT POSSIBLE FOR HER TO
21 SHOW ME WHAT SHE'S REFERRING TO?
22 MS. BARLOW: SHOW IT TO YOU?
23 THE WITNESS: BECAUSE, I MEAN, I DON'T WANT TO SAY
24 YES OR NO TO SOMETHING I DON'T KNOW WHAT I'M SAYING YES OR NO
25 TO THEN.
1 MS. BARLOW: I'LL STAND NEXT TO YOU THEN.
2 THE WITNESS: OKAY.
3 Q. (BY MS. BARLOW) SO YOU HAVE EVALUATION AND
4 UNDERSTANDING. THEN ARTICULATION AND DOCUMENTATION OF
5 REALISTIC AND ATTAINABLE GOALS TAKING INTO ACCOUNT MAJOR
6 STOCKHOLDERS -- STAKEHOLDERS, EXCUSE ME, NEEDS, REQUIREMENTS,
7 EXPECTATIONS -- STOCK MARKET IS TOO MUCH ON OUR MINDS, ISN'T
8 IT? AND THEN DEVELOPMENT OF A CARE PLAN. AND THEN WE HAVE
9 EVERYTHING WE DO IS AN INTERVENTION, MEDICAL, NONMEDICAL AND
10 THEN YOU LOOK AT OUTCOMES.
11 DO YOU RECALL WRITING THAT?
12 A. YEAH. AND THAT'S AN ALGORITHM THAT DESCRIBES BEST
13 PRACTICES. THAT IS THE IDEALIZED -- AND THAT'S, IN FACT,
14 WHAT I WANTED TO INSPIRE MY STAFF, IF YOU WILL, TO ASPIRE TO.
15 Q. SURE. AND YOU INDICATE THAT DOCUMENTATION IS VERY
16 IMPORTANT, THAT YOU NEED TO DOCUMENT IN THE MEDICAL RECORD
17 WHAT YOU'RE DOING; IS THAT CORRECT?
18 A. CORRECT.
19 Q. AND YOU STILL FEEL THAT WAY, I'M ASSUMING?
20 A. I'M STILL CONVINCED THAT DOCUMENTATION IS IMPORTANT.
21 Q. AND YOU TALK ABOUT BALANCING THE BENEFITS AND BURDENS OF
22 ALL INTERVENTIONS AND I THINK THAT'S WHAT YOU'VE BEEN TALKING
23 ABOUT TODAY WITH -- WELL, I WON'T EDITORIALIZE.
24 WHEN YOU DO THE DIAGNOSTIC TESTS OR THE MEDICAL
25 PROCEDURES OR THE INTERVENTIONS, YOU WANT TO WEIGH THE
1 BENEFITS VERSUS THE BURDENS, ISN'T THAT CORRECT, FOR THIS
2 PATIENT WHO IS PERHAPS IN END OF LIFE?
3 A. WELL, IN ALL PATIENTS. BUT ESPECIALLY WHEN TIME IS SHORT
4 OR LIFE IS SHORT, TIME IS VERY VALUABLE. AND ALL TOO OFTEN
5 WE'RE SO FOCUSED ON DIAGNOSTICS AND FIGURING OUT WHAT'S WRONG
6 ALL OF A SUDDEN YOU HAVE A PERSON WHO'S DEAD AND THAT
7 INFORMATION HASN'T DONE THEM ANY GOOD, IT HASN'T DONE ANYBODY
8 ANY GOOD AND YOU HAVE A FAMILY THAT'S GRIEVING AND WONDERING
9 WHAT HAPPENED.
10 AND SO THIS IS AN EFFORT TO FOCUS PEOPLE ON WHAT'S REALLY
11 TIMELY AND IMPORTANT TO PEOPLE AND IT USUALLY STARTS WITH
12 PAIN RELIEF, DIGNITY, GETTING THEIR PREFERENCES ELABORATED OR
13 MET. AND, OF COURSE, THIS HAS TO DO WITH PEOPLE WHO CAN, IN
14 FACT, ELABORATE THEIR PREFERENCES, WHICH IF THEY HAVEN'T IN
15 AN ADVANCED DIRECTIVE OR THROUGH THEIR PROXY, THEN IT'S THE
16 PHYSICIAN'S OBLIGATION, ABSOLUTE OBLIGATION UNDER NORMAL
17 MEDICAL ETHICS TO INTERCEDE AND DO WHAT HE OR SHE BELIEVES IS
18 IN THE PATIENT'S BEST INTEREST.
19 Q. AND PART OF THE BENEFITS AND BURDENS TO WHAT YOU'RE
20 WEIGHING IS YOU HAVE PERHAPS SIDE EFFECTS OF SEDATION TO
21 ANALGESIC MEDICATIONS; ISN'T THAT CORRECT?
22 A. WELL, I THINK IN THAT SECTION I WAS REALLY REFERRING
23 TO IS IT WORTH --
24 Q. WELL, LET'S LEAVE ASIDE THE SECTION AND JUST ANSWER
25 THE --
1 A. OKAY. I THOUGHT THAT'S WHAT YOU WERE REFERRING TO.
2 Q. OKAY. PART OF THE BENEFITS AND BURDENS -- AND I'M JUST
3 TALKING BROADLY NOW.
4 ONE OF THE BENEFITS IS YOU WOULD LIKE TO KEEP THE PERSON
5 AS CONSCIOUS AS POSSIBLE GIVEN THEIR PAIN, IF IT'S PAIN, SO
6 THAT THEY CAN SAY GOOD BYE TO THEIR FAMILY SO THE FAMILY CAN
7 SAY GOOD BYE TO THEM; ISN'T THAT CORRECT?
8 A. IF THEY'RE CAPABLE OF SAYING GOOD BYE.
9 Q. RIGHT.
10 A. AND IF THAT'S ONE OF THEIR GOALS. AGAIN, YOU KNOW, IT
11 DEPENDS ON EVERY INDIVIDUAL CASE. FOR ME TO GENERALIZE WOULD
12 BE TO DISALLOW THE INDIVIDUALITY OF EVERYBODY WHO COMES TO ME
13 AS A PATIENT. THERE IS NO COOKBOOK FORMULA FOR THIS KIND --
14 Q. RIGHT. ALTHOUGH YOU HAVE GENERALIZED TO A CERTAIN
15 EXTENT?
16 A. THESE ARE GUIDELINES AS THEY'RE MEANT TO BE.
17 Q. RIGHT. THANK YOU.
18 YOU WANT TO RELIEVE THE DISTRESS, YOU WANT TO MEET THE
19 PATIENT GOALS AND MAYBE EVEN THE FAMILY GOALS TO A CERTAIN
20 EXTENT. IF THE PERSON CAN BE KEPT COMFORTABLE AND EVEN
21 THOUGH NOT REALLY SUPER COGNITIVE, AT LEAST SOMEONE THAT THE
22 FAMILY CAN SAY GOOD BYE TO, EVEN IF THEY CAN'T SAY GOOD BYE
23 BACK, YOU WOULD LIKE TO DO THAT, WOULD YOU NOT?
24 A. WELL, WE'VE LEARNED, AGAIN, FROM DOING A LOT OF RESEARCH
25 IN THIS AREA IS THAT EVEN IF A PATIENT IS IN A COMA IT'S
1 IMPORTANT FOR PATIENTS TO -- FOR THE FAMILY TO SAY GOOD BYE AND TO
2 SAY GOOD BYE KNOWING THAT PERSON IS COMFORTABLE AND BEING
3 WELL LOOKED AFTER. WE INSTRUCT PEOPLE TO TALK EVEN TO
4 UNCONSCIOUS PATIENTS AS IF THEY CAN HEAR BECAUSE WE DON'T
5 KNOW. WE REALLY DO NOT KNOW WHAT IS PROCESSED. AND WE DO
6 KNOW THAT SOME PEOPLE DO COME BACK FROM WHAT SEEMS LIKE NEAR
7 DEATH AND IN FACT ARE VERY AWARE OF WHAT WAS SORT OF GOING ON
8 AROUND THEM. AND SINCE WE DO NOT KNOW, THIS IS VERY
9 IMPORTANT TO FAMILIES AND ULTIMATELY FOR THE PATIENT.
10 Q. AND YOU TALK ABOUT THE LAST FEW WEEKS AND DAYS AND YOU
11 TALK -- WELL, NOT THAT.
12 YOU TALK ABOUT DOCUMENTATION. AND YOU SAY THE CLINICAL
13 DOCUMENTATION SERVES SEVERAL IMPORTANT FUNCTIONS. IT'S VERY
14 IMPORTANT TO DOCUMENT WHAT YOU'RE DOING AND WHAT YOU'RE
15 THINKING; IS THAT NOT CORRECT?
16 A. RIGHT. BECAUSE -- AND THERE'S SEVERAL BECAUSES.
17 Q. RIGHT.
18 A. AND DO YOU WANT ME ELABORATE THOSE BECAUSES?
19 Q. NO, THANKS. I THINK WE'VE COVERED THAT.
20 AND YOU ADDRESS CERTAIN SPECIFIC PROBLEMS, MEDICAL
21 PROBLEMS THAT A PERSON MIGHT DEVELOP AND ONE OF THEM IS
22 AGITATION AND ANXIETY WHICH IS WHAT WE HAD WITH THESE
23 PATIENTS. AND YOU TALK ABOUT SOME OF THE CAUSES MIGHT BE
24 RESPIRATORY DISTRESS, A PERSON IS NOT GETTING ENOUGH OXYGEN,
25 THAT MAY CAUSE AGITATION; IS THAT CORRECT?
1 A. IT'S NOT NECESSARILY OXYGEN AS A SENSE OF MOVING AIR. IN
2 FACT, INADEQUATE OXYGENATION CAN ACTUALLY LEAD PEOPLE TO FEEL
3 IN SOME WAYS SOMETIMES BETTER. SO IT'S NOT JUST THE OXYGEN,
4 IT'S THE SENSE OF THE AIR HUNGRY.
5 FOR INSTANCE, IF I ASKED YOU TO HOLD YOUR BREATH, IF WE
6 DID THAT LITTLE EXPERIMENT IN THE COURTROOM NOW AND ASKED
7 EVERYBODY TO HOLD THEIR BREATH, YOUR OXYGEN SATURATION WOULD
8 BARELY CHANGE AT ALL. BUT AFTER ABOUT 15 SECONDS YOU'D START
9 WANTING TO TAKE A BREATH, AFTER 30 YOU'D START REALLY WANTING
10 TO, AFTER ABOUT A MINUTE, YOU WOULD BE BEGGING TO TAKE A
11 BREATH AND THAT'S WHAT IT FEELS LIKE TO SOME OF THESE
12 PATIENTS.
13 Q. AND CENTRAL NERVOUS SYSTEM DEPRESSANT DRUGS SUPPRESS THAT
14 DESIRE TO BREATHE, DOES IT NOT -- DO THEY NOT?
15 A. WELL, THEY DO SEVERAL THINGS. AND IN THIS SETTING THE
16 MOST CRITICAL THING THEY DO IS THEY ELIMINATE THAT ABSOLUTE
17 DESPERATE DROWNING AIR HUNGER FEELING THAT CAUSES WHAT HAS
18 BEEN DESCRIBED TO ME BY PATIENTS WHO CAN SPEAK ABOUT THIS AS
19 THE MOST AGONIZING EXPERIENCE IMAGINABLE, LIKE BEING HELD
20 UNDERWATER AND, YOU KNOW, THAT KIND OF DEGREE OF PANIC.
21 Q. BUT MY QUESTION: CENTRAL NERVOUS SYSTEM DEPRESSANT DRUGS
22 DO CAUSE A PERSON NOT TO WANT TO BREATHE OR CAUSE THE BRAIN
23 TO STOP BREATHING OR CAUSE THE BRAIN TO STOP -- THE BODY FROM
24 BREATHING, DO THEY NOT?
25 A. WELL, IF YOU -- IF YOU PUSH DOSES OF DRUGS TO TOXIC
1 LIMITS, THEY WILL DO ALL SORTS OF THINGS. BUT IN THEIR
2 THERAPEUTIC -- WITH THERAPEUTIC INTENT IN HOW WE PRESCRIBE
3 THEM, WE ALWAYS KNOW THAT THAT IS IN FACT A RISK, BUT THAT'S
4 CERTAINLY NOT THE INTENT. AND MOST OF THE TIME FORTUNATELY THE
5 THERAPEUTIC EFFECTS OCCUR BEFORE THE TOXIC EFFECTS.
6 Q. AND WHEN YOU'VE REACHED THE THERAPEUTIC EFFECTS BEFORE
7 YOU REACHED THE TOXIC EFFECTS, THEN YOU KNOW YOU'VE REACHED A
8 LEVEL THAT IS SUFFICIENT AND SO YOU DON'T PUSH MORE TO GET TO
9 THE TOXIC EFFECTS; IS THAT CORRECT?
10 A. WELL, IF YOU REACH THERAPEUTIC LEVELS AND THE PATIENT IS
11 NOW CALM, COMFORTABLE, IF THEY'RE ABLE TO VOICE THEIR -- YOU
12 KNOW, ELABORATE THEIR HISTORY AND SAY I'M OKAY NOW, THEN YOU
13 KNOW WHERE YOU'RE AT. OTHERWISE YOU HAVE TO SIMPLY, AS WE
14 TALKED ABOUT BEFORE, GO BY THE BEHAVIORAL CUES AND THEN YOU
15 DOSE THE MEDICATION ON A CONTINUOUS BASIS BASED UPON YOUR
16 BEST JUDGMENT ABOUT WHERE IT MAY WEAR OFF TO MAINTAIN THAT
17 LEVEL. SO THAT'S HOW YOU APPLY THAT APPROACH.
18 Q. WELL, AND SPEAKING OF MAINTAINING A DOSE, THAT REMINDED
19 ME OF SOMETHING WITH MRS. LARSEN. JUDITH LARSEN ON JANUARY
20 3RD, THE LAST DAY OF HER LIFE. THIS IS THE DAY THAT AT 12:30
21 IN THE MORNING AND 3:30 IN THE MORNING TWO DOSES OF MORPHINE
22 WERE HELD AND THOSE WERE 5 MILLIGRAM DOSES; IS THAT CORRECT?
23 A. I'VE NOW FOUND JUDITH LARSEN. AND WE'RE TALKING ABOUT
24 WHICH DAY, PLEASE?
25 Q. ON THE 3RD OF JANUARY, LAST DAY OF HER LIFE.
1 A. JANUARY 3RD, MORPHINE HELD TIMES THREE DOSES DUE TO
2 RESPIRATORY RATE OF FIVE TO EIGHT BREATHS PER MINUTE.
3 PATIENT OBSERVED TO BE GROANING AND TWITCHING AND SO MORPHINE
4 WAS THEN GIVEN. THE EXTREMITIES WERE MOTTLING WHICH IS ONE
5 OF THE LEADING CARDINAL MANIFESTATIONS OF IMMINENT DEATH --
6 Q. OF DEATH.
7 A. -- REGARDLESS OF ANY UNDERLYING ETIOLOGY. LOUD MOANING
8 AND AS A RESULT OF LOUD MOANING AN INCREASED DOES OF MORPHINE
9 WAS THEN GIVEN AND --
10 Q. LET'S TALK ABOUT THE DOSES AFTER THOSE THAT WERE HELD.
11 SHE WAS ON ROUTINE -- AS YOU SAY, YOU WANT TO KEEP HER ON A
12 ROUTINE DOSAGE; IS THAT CORRECT?
13 A. THAT WOULD BE IN THE PATIENT'S BEST INTEREST, SURE.
14 Q. AND SHE WAS ON 5 MILLIGRAM AT 7:30, 9:30, 12:30, AND THEN
15 I GUESS THE NEXT ONE WAS GIVEN AT 1700.
16 A. WHAT DATE ARE WE REFERRING TO?
17 Q. THE 3RD OF JANUARY. SO YOU HAD 5 MILLIGRAMS EVERY
18 WHAT -- WELL --
19 A. YOU KNOW WHAT? I DIDN'T BRING THOSE RECORDS. ONCE
20 AGAIN, YOU'LL HAVE TO BUDDY UP WITH ME TO SEE IF I CAN
21 SEE WHAT'S GOING ON.
22 Q. SO WE HAD THE 5 MILLIGRAMS AT 7:30 AND 9:30 AND THEN AT
23 10 O'CLOCK WAS ANOTHER 25 MILLIGRAM DOSE; AT 11:00 WAS
24 ANOTHER 30 MILLIGRAM DOSE; AND THEN AT 12:30 WAS THE
25 REGULARLY SCHEDULED 5 MILLIGRAM DOSE; AT 1445 WAS ANOTHER 30
1 MILLIGRAM DOSE; AT 1700 WAS THE REGULARLY SCHEDULED 5
2 MILLIGRAM DOSE; AND THEN AT 1830 WE HAD A 10 MILLIGRAM
3 REGULARLY SCHEDULED; AND ANOTHER 15 MILLIGRAM ON TOP OF THAT.
4 DO YOU RECALL THAT BEING THE DOSAGE, THE LAST DOSAGES OF
5 HER LIFE?
6 A. YEAH, YOU KNOW, I DIDN'T BRING THOSE RECORDS BUT THAT
7 CERTAINLY, YOU KNOW, IS REMINISCENT OF WHAT I RECALL
8 HAPPENING SO --
9 Q. SO THAT GOES BEYOND JUST THE ROUTINE EVERY TWO HOURS OR
10 THREE HOURS GIVING THEM A COMFORTABLE DOSE; IS THAT CORRECT?
11 A. WELL, THERE'S A ROUTINE DOSING AND THEN RESPONDING TO
12 EXIGENCIES SUCH AS THE PATIENT HAVING BREAKTHROUGH SYMPTOMS.
13 Q. DID YOU SEE ANY BREAKTHROUGH SYMPTOMS ON THE 3RD OF
14 JANUARY?
15 A. ACCORDING TO WHAT I THOUGHT THE NURSES HAD RECORDED THAT
16 THE PATIENT WAS MOANING, WAS DEMONSTRATING SIGNS AND SYMPTOMS
17 OF DISTRESS AND THAT THE ADDITIONAL DOSES WERE TO MITIGATE
18 AGAINST THOSE SYMPTOMS. AT THAT POINT, IT HAD BEEN CONCLUDED
19 THAT WITHHOLDING MEDICATION WOULD ONLY MAKE HER SYMPTOMS
20 WORSE AND THERE WAS ABSOLUTELY NO VALUE IN DOING THAT. AND
21 SO THE PLAN WAS TO PROCEED WITH MAKING SURE THAT SHE WAS
22 COMFORTABLE.
23 Q. SO SHE WAS MOANING WHEN TURNED TO GET THE SHOT, I THINK
24 IS THE WAY THE NURSES WROTE IT, AND SO THAT'S A SIGN OR
25 SYMPTOM OF PAIN THAT REQUIRES A 30 MILLIGRAM DOSE?
1 A. WELL, IT TAKES WHAT IT TAKES. AGAIN, THE NUMBERS ARE NOT
2 SO RELEVANT AS WHAT IT TAKES TO MITIGATE SYMPTOMS. AND IF
3 YOU PURELY WENT WITH SOME ARBITRARY ASSIGNMENT OF MILLIGRAM
4 DOSES, IN FACT, YOU WOULD BE BREAKING THE ESSENTIAL TENETS OF
5 GOOD PALLIATIVE MEDICINE OR GOOD MEDICINE IN GENERAL, WHICH
6 CLEARLY, THROUGH EXPERT OPINION AND GUIDELINES, NOW STATE
7 THAT ANY RELIANCE UPON ARBITRARY DOSING OR LIMITING
8 MEDICATION PURELY ON NUMBERS CONSTITUTES NEGLIGENCE. SO, YOU
9 KNOW, YOU HAVE TO RESPOND TO THE REAL PATIENT WITH A REAL
10 NEED IN FRONT OF YOU AND DO WHAT'S NECESSARY TO KEEP THEM
11 COMFORTABLE. THE --
12 Q. EVEN IF IT CAUSES DEATH?
13 A. WELL, WE'VE ALREADY TALKED ABOUT THAT. THERE IS THIS
14 POTENTIAL RISK OF HASTENING DEATH, ALTHOUGH IT'S HIGHLY
15 UNLIKELY.
16 AND THE FACT OF THE MATTER IS THIS: THAT IF YOU'RE
17 AFRAID TO BE THE LAST PERSON WHO GIVES THE LAST DOSE OF
18 MORPHINE TO ANYBODY WHO YOU SUSPECT MAY BE DYING, NOBODY WILL
19 EVER GET THE FIRST DOSE OF MORPHINE. AND, IN FACT, THAT
20 HAPPENS VERY COMMONLY BECAUSE PEOPLE DON'T UNDERSTAND AND
21 THEY DO FEAR -- THEY DON'T -- THEY HAVEN'T ADEQUATELY STUDIED
22 THE SCIENCE IN THIS CONTEXT. AND AS A RESULT OF THAT,
23 THERE'S A LOT OF MISINFORMATION AND DECEPTION AND MISLEADING
24 THAT GOES ON BY PEOPLE WHO PRACTICE IN ONE DOMAIN AND DON'T
25 HAVE THE EXPERIENCE OR THE EXPERTISE TO CARRY -- TO CARRY
1 THAT KNOWLEDGE OR THAT INFORMATION INAPPROPRIATELY TO ANOTHER
2 DOMAIN OF CARE AND SO WE END UP WITH THIS SORT OF IMPASSE,
3 AND AS A RESULT OF THAT, A LOT OF PATIENTS DIE IN EXTREME
4 AGONY JUST BECAUSE OF THE ARGUMENT THAT YOU'RE CREATING.
5 Q. BUT YOU DIDN'T SEE ANY OF THESE PEOPLE DYING IN AGONY?
6 A. NO. BECAUSE DR. WEITZEL --
7 Q. THANK YOU. THANK YOU.
8 THE COURT: HE HAS A RIGHT TO RESPOND.
9 THE WITNESS: BECAUSE DR. WEITZEL, IN FACT, INSISTED
10 THAT THEY NOT DIE IN AGONY. THAT'S EXACTLY THE POINT I'M
11 TRYING TO MAKE. THE NURSES WERE FEARFUL AND I UNDERSTAND
12 WHY. I UNDERSTAND WHY. DOCTORS AND NURSES AT THAT TIME WERE
13 NOT ADEQUATELY INSTRUCTED OR PREPARED TO DEAL WITH THE DYING,
14 IT WASN'T PART OF THE EDUCATION OR THE CULTURE. AND SO
15 THAT'S WHY THEY WITHHELD THE MEDICINE AND DR. WEITZEL
16 INTERVENED.
17 THE COURT: I THINK THAT'S ENOUGH, DOCTOR. GO
18 AHEAD.
19 THE WITNESS: THANK YOU.
20 Q. (BY MS. BARLOW) WHEN YOU SPOKE WITH MS. BOWMAN AND
21 MYSELF ON THE 26TH OF APRIL IN 2000, YOU THOUGHT THAT
22 PERHAPS -- YOU TOLD US AT THAT TIME THAT YOU THOUGHT PERHAPS
23 THE MEDICATIONS GIVEN TO MR. ALLDREDGE MAY HAVE HASTENED HIS
24 DEATH. DO YOU RECALL SAYING THAT?
25 A. I DON'T -- YOU KNOW, THIS IS NOW AWHILE BACK. I DON'T
1 KNOW SPECIFICALLY. BUT I CAN IMAGINE BASED UPON THE -- THE
2 LIMITED RECORDS ACTUALLY THAT YOU AND BETSY BOWMAN -- I GUESS
3 IT WAS BETSY BOWMAN GAVE ME, THAT WITHOUT A LOT OF THE
4 DESCRIPTIVE DOCUMENTATION BY THE NURSES ABOUT WHAT WAS
5 ACTUALLY HAPPENING AT THE TIME THOSE MEDICINES WERE GIVEN, I
6 COULD HAVE COME TO THAT CONCLUSION. BUT SUBSEQUENT TO THAT
7 EVALUATION -- EVEN THEN I WASN'T CONVINCED THAT EVEN IF IT
8 DID POTENTIALLY HASTEN THEIR DEATH THAT THERE WAS ANYTHING
9 ILLICIT ABOUT IT, THAT IS WAS JUST A POSSIBILITY. SUBSEQUENT
10 TO THAT, I RECEIVED A LOT MORE DOCUMENTATION THAT DISPELLED
11 SOME OF THOSE CONCERNS THAT I HAD.
12 Q. I THINK YOU'VE TESTIFIED PREVIOUSLY THAT YOU RECEIVED
13 MORE DOCUMENTATION BEFORE YOU MET WITH US; ISN'T THAT
14 CORRECT?
15 A. THERE WAS SOME, SOME SUPPLEMENTARY DOCUMENTATION BUT I
16 CAN'T RECALL NOW BACK, YOU KNOW, FROM NOW THINKING BACK --
17 Q. YOU DON'T --
18 A. -- WHAT WAS ADDED.
19 Q. SORRY.
20 YOU DON'T RECALL THEN AT THAT POINT YOU HAD ALL OF THE
21 NURSE -- OR EXCUSE ME, THE MEDICAL, THE HOSPITAL RECORDS?
22 A. OH, I HAD ONLY A SMALL FRACTION OF THE HOSPITAL RECORDS
23 AT THAT TIME. AND I KNOW THAT BECAUSE I RECEIVED ALL OF THEM
24 AFTER THAT FACT AND I'VE BEEN ABLE TO COMPARE THEM.
25 Q. AND DO YOU RECALL TELLING US AT THAT TIME THAT YOU
1 THOUGHT DR. WEITZEL'S CARE HAD BEEN BUMBLING AND D MINUS?
2 A. I THINK THAT'S PROBABLY PRETTY ACCURATE.
3 Q. YOU WERE CRITICAL OF HIS CARE?
4 A. I WAS CRITICAL OF HIS CARE.
5 Q. IN FACT, YOU SAID THAT YOU THOUGHT HE SHOULD NOT BE
6 PRACTICING MEDICINE?
7 A. I THINK WHAT I SAID WAS THAT HIS CARE OF THESE PATIENTS
8 WAS NOT THE TYPE OF CARE THAT I WOULD ADVOCATE IN TERMS OF
9 BEST PRACTICES FOR PATIENTS WHO ARE DYING AND THAT I HAD SOME
10 CONCERNS ABOUT -- ABOUT THE WAY HE PRACTICED. BUT AGAIN, I
11 WAS DEALING WITH VERY LIMITED RECORDS AT THAT POINT. AND A
12 LOT THOSE CONCERNS AFTER I REVIEWED -- AFTER I WAS GIVEN ALL
13 OF THE RECORDS AND GIVEN THE OPPORTUNITY TO REVIEW ALL OF THE
14 RECORDS, CONSIDERABLY ALTERED MY OPINION AS, IN FACT, WHAT
15 HAPPENS WHEN YOU GET ALL THE EVIDENCE. I WAS DEALING WITH A
16 LIMITED DECK OF CARDS I GUESS I SHOULD SAY.
17 Q. ARE YOU BEING PAID FOR YOUR TESTIMONY TODAY?
18 A. SURE.
19 Q. HOW MUCH DO YOU CHARGE?
20 A. WELL, I TELL YOU, IF YOU'RE SUGGESTING THAT A TRIAL LIKE
21 THIS --
22 Q. I'M NOT SUGGESTING. I'M JUST ASKING YOU: HOW MUCH DO
23 YOU CHARGE?
24 A. WELL, I WAS GOING TO ACTUALLY AGREE WITH YOU THAT A TRIAL
25 LIKE THIS IS OUTRAGEOUSLY EXPENSIVE. IT REALLY IS.
1 THE COURT: JUST ANSWER THE QUESTION.
2 MS. BARLOW: EXCUSE ME, THAT'S NOT MY QUESTION.
3 THE COURT: ASK A QUESTION AND JUST ANSWER IT. GO
4 AHEAD.
5 Q. (BY MS. BARLOW) HOW MUCH DO YOU CHARGE AN HOUR?
6 A. I CHARGE $350 AN HOUR.
7 Q. THANK YOU.
8 MS. BARLOW: JUST A SECOND, YOUR HONOR.
9 Q. (BY MS. BARLOW) YOU RECALL YOU HAVE TESTIFIED PREVIOUSLY
10 AND I BELIEVE WHEN YOU TESTIFIED PREVIOUSLY, YOU SAID YOU HAD
11 RECEIVED ALL OF THE HOSPITAL RECORDS. DO YOU RECALL
12 TESTIFYING TO THAT FASHION?
13 A. I WAS LED TO BELIEVE I'D RECEIVED ALL THE HOSPITAL
14 RECORDS OR MOST OF THE HOSPITAL RECORDS. I WAS MISLED.
15 Q. AND WHAT DID YOU NOT RECEIVE FROM THE STATE?
16 A. I DID NOT RECEIVE A LOT OF THE NURSING DOCUMENTS THAT
17 DESCRIBED WHAT THEIR EVALUATIONS SHOWED. I DID NOT RECEIVE A
18 LOT OF THE OTHER THERAPISTS' EVALUATIONS SHOWING THAT THEY
19 TRIED ALIMENTOTHERAPY, OCCUPATIONAL REHABILITATION THERAPY,
20 NUTRITIONISTS' NOTES, OTHERS WHO DESCRIBED THE CIRCUMSTANCES,
21 THE CONDITIONS OF THESE PATIENTS.
22 I DON'T THINK I RECEIVED ALL OF THE MEDICAL CONSULTANTS'
23 NOTES AND I RECEIVED ABSOLUTELY NONE OF THE NURSING HOME
24 NOTES, WHICH AT THAT POINT, I DIDN'T THINK PROBABLY WAS TOO
25 RELEVANT BECAUSE I CONCLUDED THAT THE CARE WAS BASICALLY
1 WITHIN THE STANDARD OF CARE AND IT WOULDN'T HAVE MATTERED.
2 BUT HAVING RECEIVED ALL OF THE PAST -- OR A LOT OF THE PAST
3 MEDICAL RECORDS IT CERTAINLY GAVE ME FAR GREATER INSIGHT INTO
4 HOW SICK THESE PATIENTS REALLY WERE.
5 Q. IN FACT, YOU WERE TOLD WE HAD NOT RECEIVED THE NURSING
6 HOME RECORDS, HAD WE?
7 A. I DON'T RECALL THAT YOU TOLD ME THAT. I JUST KNOW I
8 HADN'T RECEIVED THEM AND WHEN I DID, IT MADE A DIFFERENCE.
9 MS. BARLOW: THANK YOU. NO FURTHER QUESTIONS, YOUR
10 HONOR.
11 THE COURT: REDIRECT?
12 MR. BUGDEN: I HAVE NO FURTHER QUESTIONS FOR
13 DR. FINE.
14 THE COURT: YOU MAY STEP DOWN, DOCTOR. MAY THIS
15 WITNESS BE EXCUSED?
16 MS. BARLOW: YES, YOUR HONOR.
17 THE COURT: YOU MAYBE EXCUSED. THANK YOU FOR
18 TESTIFYING.