Robert Rothfeder, MD
8 ROBERT KEITH ROTHFEDER,
9 CALLED BY THE DEFENDANT, HAVING BEEN FIRST DULY
10 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
11 DIRECT EXAMINATION
12 BY MR. STIRBA:
13 Q. DOCTOR, WOULD YOU STATE YOUR FULL NAME AND SPELL YOUR
14 LAST NAME, PLEASE.
15 A. ROBERT KEITH ROTHFEDER, THAT'S R-O-T-H-F-E-D-E-R.
16 Q. AND WHERE DO YOU RESIDE, SIR?
17 A. I RESIDE IN SANDY, UTAH.
18 Q. AND WHAT DO YOU DO FOR A LIVING?
19 A. I'M A PHYSICIAN. I SPECIALIZE IN EMERGENCY MEDICINE.
20 Q. AND COULD YOU TELL US, PLEASE, YOUR EDUCATIONAL
21 BACKGROUND IN THE FIELD OF MEDICINE.
22 A. YES. FOLLOWING GRADUATION FROM COLLEGE AT RUTGERS
23 UNIVERSITY IN 1969, I ATTENDED MEDICAL SCHOOL AT THE
24 UNIVERSITY OF MINNESOTA MEDICAL SCHOOL IN TWIN CITIES. I
25 GRADUATED FROM MEDICAL SCHOOL IN 1974 AT WHICH TIME I
3244
1 RELOCATED TO SALT LAKE CITY. AND IN SALT LAKE I DID AN
2 INTERNSHIP AND RESIDENCY IN INTERNAL MEDICINE AT THE LDS
3 HOSPITAL AND UNIVERSITY OF UTAH SYSTEM FROM 1974 THROUGH
4 1977. FROM 1977 ON I'VE BEEN IN PRIVATE PRACTICE.
5 Q. AND GENERALLY, WHAT DOES YOUR PRIVATE PRACTICE ENTAIL?
6 A. IT'S CHANGED SOMEWHAT OVER THE YEARS. FROM '77 THROUGH
7 '94 I PRACTICED EMERGENCY MEDICINE FULL-TIME AT THE LAKEVIEW
8 HOSPITAL IN BOUNTIFUL. AND EMERGENCY MEDICINE IN THAT
9 SETTING CONSISTED OF A HOSPITAL BASED PRACTICE WHERE I WOULD
10 SEE PATIENTS IN THE EMERGENCY DEPARTMENT WHO PRESENTED WITH
11 USUAL EMERGENCIES.
12 Q. HAVE YOU PREVIOUSLY TESTIFIED IN COURTS IN THE STATE OF
13 UTAH AS A MEDICAL EXPERT?
14 A. I HAVE IN THE STATE OF UTAH AND ELSEWHERE. MOST OF MY
15 TESTIMONY HAS BEEN WITH REGARD TO ISSUES SUCH AS CAUSE OF
16 DEATH AND AFFECT OF INJURIES UPON LATER LIFE.
17 Q. DO YOU HAVE ANY BOARD CERTIFICATIONS?
18 A. BOARD CERTIFICATION IN EMERGENCY MEDICINE.
19 Q. AND PERHAPS SINCE YOU'VE STATED IT A FEW TIMES, MAYBE
20 YOU COULD TELL US, PLEASE, WHAT EMERGENCY MEDICINE ENTAILS.
21 A. I CAN. ACTUALLY, EMERGENCY MEDICINE IS A RELATIVELY NEW
22 MEDICAL SPECIALTY. WHEN I WAS IN RESIDENCY TRAINING THERE
23 WAS NOT SUCH A SPECIALTY RECOGNIZED AND POSSIBLE EMERGENCY
24 DEPARTMENTS WERE SERVICED BY PHYSICIANS IN A VARIETY OF
25 SPECIALTIES WHO WOULD -- WHO WOULD ROTATE AND TAKE DAYS
3245
1 COVERING THE EMERGENCY ROOM.
2 WELL, IT TURNED OUT THAT THAT WAS LESS THAN IDEAL. YOU
3 MIGHT HAVE A PEDIATRICIAN TAKING CARE OF AN ADULT SURGICAL
4 PATIENT AND THAT TYPE OF THING. SO IN ABOUT THE EARLY AND
5 MID '70S IT BECAME RECOGNIZED THAT A BETTER SITUATION WOULD
6 BE TO HAVE PHYSICIANS WHO SPECIALIZED IN EMERGENCY MEDICAL
7 TREATMENT TO WORK SOLELY IN EMERGENCY DEPARTMENTS AND THAT'S
8 EVOLVED OVER TIME TO THE CURRENT STATUS WHERE IN
9 METROPOLITAN AREAS PHYSICIANS THAT WORK IN HOSPITAL
10 EMERGENCY DEPARTMENTS SPECIALIZED IN THAT.
11 THE TYPICAL -- THE TYPICAL PATIENTS THAT ONE WOULD SEE
12 DURING AN AVERAGE SHIFT IN THE EMERGENCY DEPARTMENT WOULD BE
13 ABOUT 50/50 IN TERMS OF PATIENTS WITH MEDICAL ILLNESSES
14 VERSUS PATIENTS WHO HAVE SUFFERED INJURIES. AND AMONG THOSE
15 PATIENTS WITH MEDICAL ILLNESSES, IT WOULD PRETTY MUCH COVER
16 THE SPECTRUM IN TERMS OF WHAT THEIR PROBLEM WAS. THEY COULD
17 BE HAVING HEART TROUBLE OR A STROKE OR A KIDNEY PROBLEM OR A
18 LIVER PROBLEM OR PSYCHIATRIC PROBLEM. THEY COULD BE MALE,
19 FEMALE, YOUNG, ELDERLY, IN BETWEEN, BASICALLY ANYTHING THAT
20 YOU COULD THINK OF THAT MAKES SOMEBODY ILL BRINGS THEM TO
21 THE EMERGENCY ROOM. SIMILARLY, THE TRAUMA PATIENTS WOULD BE
22 A HOST OF THINGS ANYWHERE FROM PEOPLE CUTTING THEIR FINGERS
23 WASHING DISHES WHO NEEDED TO BE SEWN UP, TO KIDS BREAKING
24 THEIR WRISTS, TO LIFE-THREATENING MULTIPLE TRAUMA IN MOTOR
25 VEHICLE ACCIDENTS.
3246
1 SO IN A NUTSHELL, THAT'S WHAT -- THAT'S WHAT THE
2 PRACTICE OF EMERGENCY MEDICINE IS ABOUT. AND DURING MY
3 CAREER, I WOULD SAY THAT IN THE AVERAGE SHIFT THERE WOULD BE
4 AT LEAST ONE TO TWO PATIENTS COMING IN WHO HAD
5 LIFE-THREATENING PROBLEMS AND WHO WERE AT RISK OF DYING IN
6 THE NEXT FEW MINUTES OR HOURS.
7 Q. HAVE YOU IN YOUR CAREER TREATED PEOPLE WITH ACUTE
8 INJURIES OR ACUTE CIRCUMSTANCES?
9 A. WELL, THOUSANDS, TENS OF THOUSANDS MAYBE.
10 Q. AND COULD YOU TELL US, PLEASE, GENERALLY THE KINDS OF
11 ACUTE CIRCUMSTANCES OR INJURIES THAT YOU HAVE ADDRESSED AS
12 AN EMERGENCY PHYSICIAN?
13 A. CERTAINLY. AMONG THE MEDICAL PATIENTS, THE MOST COMMON
14 ACUTE CIRCUMSTANCES WOULD BE CARDIAC HEART PROBLEMS. PEOPLE
15 COMING IN WITH CHEST PAIN, MANY OF WHOM WOULD TURN OUT TO
16 HAVE HAD HEART ATTACKS, SOME OF THOSE HEART ATTACKS WITH
17 COMPLICATIONS. THE OTHER PATIENTS PRESENTING WITH CHEST
18 PAIN WOULD TURN OUT TO HAVE PNEUMONIAS, WHAT WE CALL
19 PULMONARY EMBOLI, THAT IS BLOOD CLOTS THAT GO TO THE LUNG
20 WHICH ARE LIFE-THREATENING, STROKES WHICH ARE ALSO
21 LIFE-THREATENING ARE VERY COMMON IN THE SENIOR CITIZEN AGE
22 GROUP.
23 OTHER MEDICAL CONDITIONS THAT WERE COMMON WOULD BE
24 PROBLEMS WITH DIABETES AND THE COMPLICATION THEREOF, ASTHMA,
25 INTESTINAL PROBLEMS, ABDOMINAL PAIN AS A PRESENTING
3247
1 COMPLAINT IS PROBABLY ALMOST AS COMMON AS CHEST PAIN AND
2 THOSE PATIENTS WOULD HAVE THINGS LIKE APPENDICITIS,
3 GALLBLADDER DISEASE, ULCER DISEASE, BLEEDING ULCERS. A
4 NUMBER OF THESE PATIENTS WOULD BE IN POTENTIALLY
5 LIFE-THREATENING SITUATIONS. I MEAN, IT GOES ON AND ON. I
6 COULD SPEND A LOT OF TIME BUT THAT'S THE TYPE OF THING.
7 MEDICALLY WE WOULD SEE ACUTE PSYCHIATRIC EMERGENCIES,
8 SUICIDE ATTEMPTS WHERE PEOPLE TAKE OVERDOSES OF MEDICATION
9 AND OTHER SUBSTANCES. IN TERMS OF TRAUMA, LACERATIONS,
10 FRACTURES, MULTIPLE TRAUMA, BLUNT TRAUMA TO THE CHEST OR
11 ABDOMEN WHICH IS LIFE-THREATENING, PENETRATING TRAUMA TO THE
12 CHEST OR ABDOMEN WHICH WOULD INCLUDE GUNSHOT WOUNDS, KNIFE
13 WOUNDS, PENETRATING INJURIES FROM OTHER PROJECTILES, FROM
14 MOTOR VEHICLE TRAUMA, HEAD INJURIES RESULTING IN
15 UNCONSCIOUSNESS, COMA, ET CETERA, ET CETERA, BLEEDING INSIDE
16 THE HEAD, SUBDURAL HEMATOMAS. AND ON TOP OF THAT YOU HAVE A
17 WHOLE HOST OF EMERGENCIES THAT ARE SEEN ONLY IN PEDIATRIC
18 PATIENTS. YOU SEE A NUMBER OF EMERGENCIES THAT ARE SEEN
19 ONLY IN GYNECOLOGIC PATIENTS, MISCARRIAGES, VAGINAL
20 BLEEDING, ET CETERA, ET CETERA, ET CETERA.
21 Q. IN THE CONTEXT OF YOUR PRACTICE, HAVE YOU CARED FOR AND
22 TREATED A GERIATRIC POPULATION?
23 A. NOWADAYS IN THE EMERGENCY ROOM A LARGE PERCENTAGE OF
24 PATIENTS COMING INTO THE EMERGENCY ROOM ARE GERIATRIC
25 PATIENTS, PATIENTS WITH MULTIPLE EXISTING MEDICAL PROBLEMS;
3248
1 HEART PROBLEMS, DIABETES, OLD STROKES, INFECTIONS AND SO
2 FORTH, WHO COME IN WITH SOME ACUTE CHANGE THAT REQUIRES
3 EVALUATION SUCH AS A NEW COMPLAINT OF PAIN, CHANGE IN MENTAL
4 STATUS, THAT TYPE OF THING. AND ACTUALLY, FREQUENTLY THOSE
5 PATIENTS PRESENTING WITH CHANGE IN MENTAL STATUS, CHANGE IN
6 COMFORT ARE FOUND TO HAVE AN ACUTE MEDICAL PROBLEM WHICH HAS
7 PRECIPITATED THE BEHAVIORAL CHANGE.
8 Q. DEFINE FOR US WHAT YOU MEAN BY AN ACUTE CHANGE OR AN
9 ACUTE MEDICAL STATUS.
10 A. WELL, THE ACUTE BEHAVIORAL CHANGES THAT YOU'LL SEE WILL
11 BE THAT THE PATIENT WILL COME FROM THE HOME OR NURSING HOME
12 AND THEY'LL SAY THEY'RE NOT COMMUNICATING ANYMORE, YESTERDAY
13 THEY WERE COMMUNICATIVE, WE COULD HAVE A CONVERSATION, TODAY
14 THEY WON'T ANSWER ME OR THEY -- THEY ARE DISORIENTED, THEY
15 ARE GOING THROUGH TIMES WHERE THEY DON'T KNOW WHERE THEY
16 ARE, THEY WON'T EAT, THEY WON'T DRINK, THEY'VE SUDDENLY
17 BECOME INCONTINENT OF URINE OR OF STOOL. THEY BECOME --
18 THEY BECOME NOT ALERT, NOT REACTING TO THEIR CIRCUMSTANCE
19 AND THEN A HOST OF -- A HOST OF MEDICAL TYPES OF SIGNS AND
20 SYMPTOMS; THEY ARE BREATHING RAPIDLY, THEY ARE MOANING IN
21 PAIN, THEY ARE RUNNING A FEVER, THEIR PULSE IS RAPID,
22 THEY'RE COUGHING, ET CETERA, ET CETERA.
23 Q. IS THERE -- IS THE GERIATRIC POPULATION PARTICULARLY
24 PRONE IN YOUR EXPERIENCE TO ACUTE MEDICAL CHANGES?
25 A. VERY MUCH SO.
3249
1 Q. AND WHY IS THAT DOCTOR?
2 A. WELL, THEY ARE FRAGILE. THEY ARE FRAGILE, THEY ARE --
3 MR. MAJOR: WELL, YOUR HONOR, WE'RE GOING TO
4 OBJECT. WE WOULD LIKE AN OPPORTUNITY TO VOIR DIRE THIS
5 WITNESS AND WE MAY WANT TO DO IT OUTSIDE OF THE JURY. WE
6 HAVE SOME CONCERNS ABOUT HIS QUALIFICATIONS AND ABOUT
7 FOUNDATION THAT'S BEEN LAID HERE.
8 THE COURT: WELL, I DON'T KNOW IF ALL THE
9 FOUNDATION HAS BEEN LAID.
10 MR. STIRBA: NO, WE'RE JUST LAYING IT, I THOUGHT.
11 THE COURT: WELL, DO YOU WISH --
12 MR. STIRBA: WELL, I WOULD CERTAINLY -- I MEAN, IF
13 THEY WANT TO VOIR DIRE THE WITNESS, GO RIGHT AHEAD AT THIS
14 POINT.
15 THE COURT: OKAY.
16 VOIR DIRE EXAMINATION
17 BY MR. MAJOR:
18 Q. DOCTOR, YOU JUST -- YOU INDICATED YOU WORK IN THE
19 EMERGENCY ROOM; IS THAT CORRECT?
20 A. PARDON ME?
21 Q. YOU ARE AN EMERGENCY ROOM PHYSICIAN?
22 A. CORRECT.
23 Q. AND THAT'S SOLELY WHAT YOUR EXPERTISE IS IS WORKING IN
24 THE EMERGENCY ROOM?
25 A. I WOULDN'T SAY THAT'S SOLELY MY EXPERTISE.
3250
1 Q. BUT IN WORKING IN THE EMERGENCY ROOM GENERALLY A PATIENT
2 COMES IN WITH ACUTE PROBLEMS, YOU CURE THE ACUTE PROBLEM; IS
3 THAT CORRECT?
4 A. YOU SOMETIMES CURE THEM AND YOU SOMETIMES DON'T.
5 Q. YOU DON'T. BUT ONCE YOU'VE STABILIZED A PATIENT THEN
6 THEY ARE SENT TO OTHER AREAS IN THE HOSPITAL LIKE THE I.C.U.
7 OR SOME OTHER AREAS OF THE HOSPITAL OR SENT HOME; IS THAT
8 CORRECT?
9 A. SOMETIMES.
10 Q. OKAY. AND SOMETIMES YOU ARE ABLE TO CURE THEM AND THEY
11 HAVE NO FURTHER PROBLEM; IS THAT CORRECT?
12 A. CORRECT.
13 Q. YOU DON'T HAVE ANY EXPERIENCE AS PART OF YOUR E.R.
14 TRAINING OR YOUR EMERGENCY ROOM TRAINING, YOU DON'T DO ANY
15 LONG-TERM CARE FOR PATIENTS, DO YOU?
16 A. NO, THAT'S INCORRECT. ACTUALLY, MY PRESENT PRACTICE, I
17 DIDN'T REALLY GET A CHANCE TO TALK ABOUT THAT, BUT FROM
18 ABOUT '94 THROUGH THE PRESENT --
19 Q. BUT I'M JUST ASKING AS A AN EMERGENCY ROOM PHYSICIAN --
20 MR. STIRBA: YOUR HONOR, HE WAS ANSWERING A
21 QUESTION THAT COUNSEL PUT TO HIM AND I BELIEVE HE'S ENTITLED
22 TO DO THAT.
23 THE COURT: ANSWER THE LAST QUESTION AND ASK THE
24 NEXT QUESTION.
25 Q. (BY MR. MAJOR) MY QUESTION WAS: AS AN EMERGENCY ROOM
3251
1 PHYSICIAN, YOU DON'T ENGAGE IN LONG-TERM CARE?
2 A. THAT'S CORRECT, WHEN I'M PRACTICING IN THE EMERGENCY
3 ROOM I DON'T ENGAGE IN LONG-TERM CARE.
4 Q. AND YOU DON'T ENGAGE IN GERIATRICS, IS THAT CORRECT, YOU
5 DON'T HAVE TRAINING IN GERIATRICS CARE AS FAR AS DEALING
6 SOLELY WITH OLDER PATIENTS?
7 A. WELL, AS I TESTIFIED, A LARGE PERCENTAGE OF THE CLINICAL
8 WORK I DO INVOLVES ELDERLY PATIENTS.
9 Q. AND DOES THAT INVOLVE WITH TRAFFIC ACCIDENTS AND ACUTE
10 TYPE SITUATIONS LIKE THAT?
11 A. SOME OF IT DOES.
12 Q. OKAY. WELL, LET ME ASK YOU THIS BECAUSE I GUESS MR.
13 STIRBA WILL, BUT I'LL SAVE HIM THE TROUBLE. BUT WHAT HAVE
14 YOU DONE AFTER 1994?
15 A. WELL, I'VE CONTINUED TO WORK IN THE EMERGENCY ROOM
16 DEPARTMENT BUT I ALSO HAVE A PRIVATE PRACTICE IN SALT LAKE
17 CITY WHERE I SEE PATIENTS IN MY OFFICE TWO DAYS A WEEK THAT
18 I FOLLOW LONG TERM, MOST OF WHOM HAVE BEEN INJURED IN MOTOR
19 VEHICLE ACCIDENTS AND HAVE CHRONIC PAIN PROBLEMS.
20 Q. RIGHT. AND ACCORDING TO YOUR CURRICULUM VITAE, THAT IS
21 BASICALLY WHAT YOU DEAL WITH IS AS INDICATED LIMITED TO THE
22 EVALUATION AND REHABILITATION OF MOTOR VEHICLE-RELATED
23 TRAUMA; IS THAT CORRECT?
24 A. THAT'S CORRECT.
25 Q. SO YOU ARE NOT TRAINED OR HAVE ANY EXPERIENCE IN
3252
1 GERIATRICS?
2 A. I'VE ALREADY TESTIFIED IN TERMS OF WHAT --
3 Q. WELL, I MEAN SPECIFIC TRAINING. ANY EXPERTISE IN
4 GERIATRICS?
5 A. I'VE TESTIFIED AS TO WHAT MY EXPERTISE IS. IT'S NOT
6 DIFFERENT THAN TAKING CARE OF MOST PATIENTS.
7 Q. DO YOU HAVE ANY TRAINING OR EXPERTISE IN PHARMACOLOGY?
8 A. I DO AS IT RELATES TO THE CLINICAL PRACTICE I'VE HAD, AS
9 OTHER PHYSICIANS DO.
10 Q. AND ANY TRAINING -- AGAIN, NO TRAINING OR EXPERTISE IN
11 PSYCHIATRY?
12 A. PSYCHIATRY IS PART OF WHAT I DO.
13 Q. BUT YOU ARE NOT A TRAINED PSYCHIATRIST?
14 A. I'M NOT -- I DON'T SPECIALIZE AS A PSYCHIATRIST, THAT'S
15 CORRECT.
16 Q. AND YOU HAVE NO SPECIAL TRAINING OR EXPERTISE IN PAIN
17 MANAGEMENT?
18 A. I WOULDN'T SAY THAT.
19 Q. WELL, OTHER THAN AS JUST A REGULAR DOCTOR IN YOUR
20 REGULAR PRACTICE?
21 A. WELL, AS A REGULAR DOCTOR IN MY REGULAR PRACTICE I SEE
22 REGULAR PATIENTS WHO HAVE CHRONIC PAIN.
23 Q. BUT YOU DON'T HOLD YOURSELF OUT AS AN EXPERT IN THAT
24 AREA?
25 A. I PROBABLY DO.
3253
1 THE COURT: OKAY. MR. STIRBA?
2 MR. MAJOR: YOUR HONOR, BASED ON THAT, HIS
3 CRITERIA, THE STATE BELIEVES HE'S NOT A QUALIFIED EXPERT TO
4 BE TESTIFYING ABOUT THESE PATIENTS. NUMBER ONE, THEY ARE
5 GERIATRIC --
6 THE COURT: WELL, LET'S -- IF WE'RE GOING TO HAVE
7 AN ARGUMENT, LADIES AND GENTLEMEN, I'M GOING TO HAVE YOU
8 JUST TAKE A SHORT BREAK. IF YOU WANT TO GO OUTSIDE, THAT'S
9 FINE BUT BE IN A PLACE WHERE THE BAILIFF CALLS YOU THAT
10 YOU'LL BE ABLE TO COME IN IN A FEW MINUTES.
11 SO DURING THIS BREAK IT'S YOUR DUTY NOT TO CONVERSE
12 AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO
13 BE ADDRESSED BY ANY OTHER PERSON ON ANY SUBJECT OF THE
14 TRIAL. IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
15 UNTIL THE CASE IS FINALLY SUBMITTED TO YOU. SO IF YOU'LL --
16 WE'LL CALL YOU WHEN WE'RE READY.
17 (WHEREUPON THE JURY WAS EXCUSED.)
18 THE COURT: OKAY. PLEASE BE SEATED. THE RECORD
19 WILL REFLECT THAT THE JURY HAS LEFT THE COURTROOM. MR.
20 MAJOR, IF YOU WOULD LIKE TO MAKE YOUR MOTION.
21 MR. MAJOR: YOUR HONOR, OUR MOTION, BASED ON THE
22 VOIR DIRE AND WHAT WE HAVE HERE BASED ON THE WITNESS'S
23 CURRICULUM VITAE AND SO FORTH, WE DON'T BELIEVE THAT HE
24 QUALIFIES AS AN EXPERT IN THIS PARTICULAR CASE. HE'S AN
25 EMERGENCY ROOM PHYSICIAN. AS AN EMERGENCY PHYSICIAN HE HAS
3254
1 VERY LITTLE EXPERTISE OR EXPERIENCE IN LONG-TERM CARE WHICH
2 ALL OF THESE PATIENTS WERE. NONE OF THESE PATIENTS WERE
3 EMERGENCY ROOM TYPE CASES. I MEAN, THERE'S BEEN NO EVIDENCE
4 OTHER THAN MAYBE ELLEN ANDERSON THAT THEY CAME IN WITH ANY
5 TYPE OF ACUTE PROBLEMS. ALL OF THE PROBLEMS DEVELOPED LATER
6 ON.
7 HE HAS NO EXPERTISE IN GERIATRIC, PSYCHIATRY, HE WOULD
8 NOT HAVE ANY EXPERTISE IN THE USE OF PSYCHOTROPIC DRUGS. HE
9 WOULD HAVE NO EXPERTISE IN PAIN MANAGEMENT OTHER THAN WHAT
10 HE HAS DONE AS A GENERAL PHYSICIAN. AND I THINK IS WHAT
11 THIS COURT HAS BEEN HOLDING BOTH THE STATE'S SIDE AND IN THE
12 OTHER WITNESSES IS THEY HAVE TO HOLD THEMSELVES OUT TO
13 SOMETHING BEYOND JUST WHAT A NORMAL DOCTOR WOULD BE ABLE TO
14 DO. AND IN THIS PARTICULAR CASE, I DON'T THINK THAT THIS
15 MR. ROTHFEDER -- OR DR. ROTHFEDER, I SHOULD SAY, I
16 APOLOGIZE, HAS THAT EXPERTISE. HE'S AN EMERGENCY ROOM
17 PHYSICIAN, HE DEALS WITH ACUTE PATIENTS WHERE THEY COME IN,
18 HE DEALS WITH THEM AND THEY ARE OUT. IN HIS PRIVATE
19 PRACTICE HE DEALS WITH TRAUMA, PEOPLE INVOLVED IN TRAFFIC
20 ACCIDENTS. NONE OF THESE PATIENTS HAD TRAFFIC ACCIDENT
21 INJURIES, NONE OF THESE PATIENTS HAD THAT TYPE OF INJURY.
22 THE TESTIMONY IS THESE PATIENTS CAME IN AND GRADUALLY
23 OVER A PERIOD OF TIME THEIR HEALTH DETERIORATED AND WHAT
24 CAUSED THAT DETERIORATION IS THE ISSUE BEFORE THIS JURY.
25 BUT THIS DOCTOR DOES NOT HAVE THE EXPERTISE TO TESTIFY
3255
1 CONCERNING THOSE PARTICULAR ISSUES.
2 THE COURT: SO IS IT YOUR POSITION UNLESS A PERSON
3 IS BOARD CERTIFIED IN GERIATRICS OR PSYCHIATRY THEY CAN NOT
4 BE AN EXPERT WITNESS IN THIS CASE?
5 MR. MAJOR: WELL, THAT'S WHAT THE COURT -- WHEN WE
6 HAD BEEN DEALING WITH SOME OF THE STATE'S WITNESSES, I
7 BELIEVE THAT'S WHAT THE COURT HAS BASICALLY BEEN HOLDING
8 WHEN WE BROUGHT IN SOME OF OUR DOCTORS --
9 THE COURT: WERE ALL OF YOUR EXPERTS GERIATRIC
10 SPECIALISTS?
11 MR. MAJOR: WELL, WE DIDN'T CALL A GERIATRIC --
12 FEHLAUER WAS OUR GERIATRIC SPECIALIST AND HE QUALIFIED
13 THAT'S WHAT HE DID, THAT'S WHAT HIS CURRICULUM VITAE HAS
14 TOTALLY DEALT WITH. DR. HARE WAS A PHARMACOLOGIST OR
15 TOXICOLOGIST, PAIN MANAGEMENT SPECIALIST, HE HAS ALL OF THE
16 TRAINING, BOARD CERTIFICATIONS IN THOSE AREAS.
17 DR. CROOKSTON WAS A PSYCHIATRIST WHO DEALT IN ALL THOSE
18 AREAS. AND I MAY BE MISTAKEN, BUT I RECALL THERE MAY HAVE
19 BEEN SOME LIMITATIONS ON HOW FAR OUR -- MOTIONS BY THE
20 DEFENSE ON HOW FAR THOSE EXPERTS THEMSELVES COULD GO BEYOND
21 THEIR PARTICULAR FIELD. I MEAN, WE DEALT WITH THOSE MOTIONS
22 NUMEROUS TIMES AND NOW THE DEFENSE IS BRINGING A DOCTOR IN
23 HERE WHO DOESN'T HAVE ANYWHERE NEAR THE QUALIFICATIONS BUT
24 YET WE'RE JUST RAISING THOSE SAME ISSUES THAT THE DEFENSE
25 DID.
3256
1 THE COURT: LET'S FIND OUT WHAT THIS WITNESS CAN
2 TESTIFY. WHAT IS YOUR RESPONSE?
3 MR. STIRBA: WELL, FIRST OF ALL, YOUR HONOR, I
4 DON'T THINK THE COURT HAS EVEN RULED WITH RESPECT TO
5 LIMITING THE SCOPE OF ANY OF THE TESTIMONY OF THE STATE'S
6 WITNESSES IN TERMS OF WHAT THEY TESTIFIED TO.
7 THE COURT: THE ONLY THING THAT I HAVE RULED ABOUT
8 REGARDED THE -- WHETHER THERE WERE THINGS THAT WERE ASKED
9 OPINIONS OUTSIDE OF WHAT WERE IN THEIR REPORTS.
10 MR. STIRBA: THAT'S EXACTLY RIGHT AND I THINK
11 THAT'S THE ONLY OBJECTION YOU HEARD FROM THE DEFENSE. THE
12 ARGUMENTS MADE BY COUNSEL, AND I DID CROSS SOME OF THEIR
13 WITNESSES ON THIS VERY ISSUE ABOUT THEIR EXPERTISE, I THINK
14 IT'S ARGUMENT. IT GOES TO WEIGHT, NOT NECESSARILY TO
15 WHETHER HE'S QUALIFIED.
16 HE'S GOING TO TESTIFY AS A CAUSE OF DEATH EXPERT, YOUR
17 HONOR. HE'S NOT TESTIFYING IN SOME GREATER VAIN THAN THAT.
18 AND I THINK SOMEBODY WHO HAS HIS QUALIFICATIONS IS
19 INORDINATELY QUALIFIED AND UNIQUELY QUALIFIED GIVEN THE
20 FACTS OF THESE CASES TO TESTIFY AS TO CAUSE OF DEATH. I
21 MEAN OBVIOUSLY HE'S TREATED THOUSANDS OF PEOPLE IN VERY
22 SIMILAR CIRCUMSTANCES AND I THINK THAT ANY OTHER ISSUE ABOUT
23 WHETHER OR NOT HE HAS A PARTICULAR EXPERTISE IN MEDICINE OR
24 HE DOESN'T OR WHAT HAVE YOU REALLY GOES TO CROSS-EXAMINATION
25 AND GOES TO ARGUMENT AND GOES TO WEIGHT.
3257
1 HE'S ALREADY TESTIFIED HE IS QUALIFIED AS AN EXPERT
2 BEFORE IN THE STATE OF UTAH. I WILL GO ON TO ASK HIM IF
3 HE'S QUALIFIED AS AN EXPERT SPECIFICALLY RELATING TO CAUSE
4 OF DEATH IN OTHER COURTS IN THE STATE AND I'LL PROFFER TO
5 THE COURT THAT HE WILL TESTIFY THAT HE HAS AND HE HAS THE
6 REQUISITE MEDICAL EXPERIENCE AND TRAINING TO DO THIS.
7 AND AS FAR AS SOME OF THE REPRESENTATIONS THAT WERE
8 JUST MADE ABOUT HIS QUALIFICATIONS, I HEARD WHAT HE WAS
9 ASKED AS YOUR HONOR DID AND I THINK HE ANSWERED THOSE
10 QUESTIONS, THAT HE HAD ALL OF THOSE THINGS THAT ESSENTIALLY
11 WERE ASKED OF HIM, EITHER IN HIS CLINICAL PRACTICE PRESENTLY
12 OR IN HIS PRACTICE AS AN EMERGENCY ROOM PHYSICIAN AND
13 EVERYTHING ELSE IS JUST ARGUMENT.
14 THE COURT: OKAY. WHAT IS YOUR RESPONSE IF THIS
15 PERSON IS ON CAUSE OF DEATH, NOT ON GERIATRICS OR PSYCHIATRY
16 OR PAIN MANAGEMENT, BUT CAUSE OF DEATH?
17 MR. MAJOR: WELL, IF HE CAN DEAL WITH CAUSE OF
18 DEATH, THE PROBLEM THAT I HAVE WITH THAT IS PART OF THE
19 CAUSE OF DEATH AT LEAST FROM THE POINT OF VIEW FROM THE
20 STATE WOULD BE THE PSYCHOTROPIC DRUGS AND THE OVERDOSING
21 OF -- AND THE USE OF THE MORPHINE. IF THIS WITNESS DOES NOT
22 HAVE THE EXPERTISE AS A PSYCHIATRIST OR AN EXPERTISE IN THE
23 AREA OF GERIATRICS IN DEALING WITH GERIATRICS, I DON'T
24 BELIEVE HE CAN TESTIFY TO THE CAUSE OF DEATH IF HE DOESN'T
25 KNOW THE AFFECTS OF CERTAIN PSYCHOTROPIC DRUGS. AND I DON'T
3258
1 BELIEVE HE'S BEEN ABLE TO SAY HE'S HAD THE EXPERTISE IN
2 DEALING WITH THAT PARTICULAR AREA.
3 THE COURT: WELL, ARE YOU CLAIMING THAT HE DOES NOT
4 HAVE THE REQUISITE HELP UNDER RULE 702 TO ASSIST THE JURY ON
5 CAUSE OF DEATH WHETHER HE CAN ASSIST THEM ON ALL THE OTHER
6 ISSUES?
7 MR. MAJOR: YES. BECAUSE, NUMBER ONE, YOUR HONOR,
8 IN ORDER TO DO THAT, YOU HAVE TO BE ABLE TO HAVE THE
9 EXPERTISE AND I DON'T BELIEVE HE'S BEEN ABLE TO EXPRESS THE
10 FACT THAT HE HAS THAT EXPERTISE THAT IN FACT HE CAN HELP THE
11 JURORS.
12 THE COURT: WELL, WHO DO YOU CLAIM CAN GIVE A CAUSE
13 OF DEATH -- WHO CAN BE A CAUSE OF DEATH EXPERT IN THIS, JUST
14 THE MEDICAL EXAMINER?
15 MR. MAJOR: NO. YOU COULD HAVE SOMEONE WHO HAS
16 EXPERTISE AND HAS HAD TRAINING AS DR. FEHLAUER DID IN THE
17 GERIATRIC TREATING. YOU CAN HAVE SOMEONE WHO CAN DISCUSS
18 THE SPECIFIC DRUGS THAT WERE GIVEN IN THIS CASE. DR. HARE
19 WHO WAS A TOXICOLOGIST WHO CAN TALK ABOUT THE EFFECTS,
20 CUMULATIVE EFFECTS THAT THE DRUGS HAVE ON THESE PATIENTS.
21 YOU HAVE DR. CROOKSTON WHICH IS A PSYCHIATRIST WHO CAN DO
22 THE SAME TYPE OF THING ON THOSE TYPE OF THINGS, SPECIFICALLY
23 FOR PSYCHIATRY PATIENTS, SPECIFICALLY FOR ELDERLY PATIENTS
24 AND SPECIFICALLY IN THE REALM OF THE USE OF THE DRUGS THAT
25 ARE PRESENT.
3259
1 THE COURT: OKAY. SO A DOCTOR WHO WORKS WITH
2 PEOPLE WHO COME TO THE EMERGENCY ROOM WHICH HE HAS TESTIFIED
3 ARE SOMETIMES DISORIENTED, SOMETIMES HAVE PSYCHIATRIC
4 PROBLEMS, HAVE OTHER PROBLEMS, PEOPLE WHO COME AND I ASSUME,
5 WE HAVEN'T HEARD THIS YET, BUT I ASSUME PEOPLE DIE IN THE
6 EMERGENCY ROOM, THAT HE HAS SEEN THOSE FROM WHATEVER CAUSES,
7 WHETHER THEY WERE TRAUMATIC CAUSES OR MEDICAL CAUSES AS HE'S
8 DEFINED THEM AND THAT PERSON KIND OF WORKS DAY IN AND DAY
9 OUT WITH DEATH CANNOT TESTIFY AS TO CAUSE OF DEATH, IS
10 THAT --
11 MR. MAJOR: NOT IN A SITUATION WHERE WE ARE WE HAVE
12 HERE BECAUSE THESE ARE LONG-TERM PATIENTS WHO HAVE HAD
13 TREATMENT OVER THE LONG TERM. AND IN MOST EMERGENCY
14 SITUATIONS THE SITUATION IS VERY ACUTE. YOU BRING THE
15 PATIENT IN, THE SITUATION IS ACUTE AT THAT POINT IN TIME,
16 YOU TREAT IT OR DON'T TREAT IT, ONCE IT'S TREATED THE
17 PATIENT GOES ON.
18 OUR CONCERN IS HE HAS NO EXPERTISE IN BEING ABLE TO SAY
19 OVER THE LONG-TERM CARE OF THESE PATIENTS, THIS IS THE
20 SITUATION. I MEAN, IF THIS WAS A SITUATION WHERE THE
21 PATIENT HAD COME IN ON A AUTOMOBILE ACCIDENT, THE REST HOME
22 HAD RUSHED THEM DOWN TO THE EMERGENCY ROOM OR THE UNIT HAD
23 RUSHED THEM DOWN TO THE EMERGENCY ROOM AND SAID, HEY, WE
24 THINK THIS AND THIS AND THIS HAS HAPPENED AND THEN THEY
25 DIED, I THINK HE WOULD BE QUALIFIED. BUT WHERE YOU HAVE
3260
1 PATIENTS WHO HAVE BEEN IN A UNIT FOR WEEKS AND ALL OF THESE
2 OTHER GERIATRIC, ALL OF THESE AGE THINGS APPLY, I DON'T
3 THINK THAT HE WOULD BE QUALIFY TO TESTIFY TO THAT, YOUR
4 HONOR.
5 THE COURT: OKAY. WELL, RULE 702 OF THE UTAH RULES
6 OF EVIDENCE STATES IN REGARD TO TESTIMONY BY EXPERTS, "IF
7 SCIENTIFIC, TECHNICAL OR OTHER SPECIALIZED KNOWLEDGE WILL
8 ASSIST THE TRIER OF FACT TO UNDERSTAND THE EVIDENCE OR TO
9 DETERMINE A FACT IN ISSUE. A WITNESS QUALIFIED AS AN EXPERT
10 BY KNOWLEDGE, SKILL, EXPERIENCE, TRAINING OR EDUCATION MAY
11 TESTIFY THERETO IN THE FORM AN OPINION OR OTHERWISE."
12 AS TO HIS QUALIFICATIONS, WHAT FOUNDATION HAS BEEN LAID
13 AND THE VOIR DIRE, I'M GOING TO OVERRULE THE OBJECTION. I'M
14 GOING TO ALLOW HIM TO TESTIFY AS TO CAUSE OF DEATH. ALL THE
15 THINGS THAT YOU BROUGHT OUT GO TO THE WEIGHT WHETHER THE
16 JURY OUGHT TO REGARD OR DISREGARD HIS TESTIMONY. BUT
17 WHETHER HE HAS BACKGROUND AND EXPERIENCE IN CAUSE OF DEATH,
18 I FIND THAT HE DOES. SO I'LL ASK THE JURY -- THE BAILIFF TO
19 BRING THE JURY BACK IN.
20 MR. STIRBA: BEFORE WE DO THAT, JUDGE, CAN I HAVE
21 AN UNDERSTANDING NOW, ARE WE OKAY WITH THE BINDERS?
22 MR. MAJOR: I HAVE NO OBJECTION. ARE WE ACTUALLY
23 ADMITTING THEM?
24 MR. STIRBA: OH, NO, NO. I'M JUST GOING TO USE
25 THEM --
3261
1 THE COURT: THEY ARE GOING TO BE HANDED OUT TO THE
2 JURORS, COLLECTED AFTER HIS TESTIMONY NOT BE AN EXHIBIT.
3 MR. STIRBA: THAT'S RIGHT. THAT'S EXACTLY CORRECT.
4 THE COURT: OKAY. THAT'S THE BASIS. IS THERE ANY
5 PROBLEM WITH THAT?
6 MR. MAJOR: NO, NO, OBJECTION.
7 MR. MAY: SHOULD I JUST PUT THEM ON THE CHAIR
8 BEFORE THEY COME IN?
9 THE COURT: THAT'S PROBABLY FINE AND YOU CAN
10 EXPLAIN WHAT WE'RE DOING.
11 MR. STIRBA: YOUR HONOR, MAY I APPROACH?
12 THE COURT: THANK YOU.
13 (WHEREUPON THE JURY ENTERED THE COURTROOM.)
14 THE COURT: PLEASE BE SEATED, LADIES AND GENTLEMEN.
15 THE RECORD WILL REFLECT THAT THE JURY IS PRESENT, THERE HAVE
16 BEEN DISTRIBUTED TO YOU SOME EXHIBITS THAT ARE GOING TO BE
17 USED TO HELP YOU TO FOLLOW ALONG WITH THIS WITNESS'S
18 TESTIMONY. THEY ARE GOING TO BE USED FOR ILLUSTRATIVE
19 PURPOSES. YOU ARE GOING TO BE ABLE TO READ ALONG AS THIS
20 WITNESS HAS TESTIFIED ON DIRECT AND CROSS-EXAMINATION AND
21 THEN THEY'LL BE COLLECTED AFTER BUT RATHER THAN -- IS THIS
22 TO AVOID SHOWING --
23 MR. STIRBA: RIGHT, I THINK IT EXPEDITES THE WHOLE
24 PROCESS, YOUR HONOR.
25 THE COURT: ALL RIGHT. SO THAT'S WHAT THOSE ARE
3262
1 THERE FOR. ALL RIGHT. IF YOU WOULD LIKE TO CONTINUE.
2 MR. STIRBA: THANK YOU.
3 DIRECT EXAMINATION, CONT'D
4 BY MR. STIRBA:
5 Q. DOCTOR, THE QUESTION I HAD POSED TO YOU WAS: THE
6 GERIATRIC POPULATION, IS IT PARTICULARLY PRONE TO THE
7 DEVELOPMENT OF ACUTE MEDICAL PROBLEMS?
8 A. AND I ANSWERED THAT THAT'S CORRECT.
9 Q. YES. AND WOULD YOU TELL US, PLEASE, WHY THAT IS?
10 A. YES. THIS POPULATION OF PATIENTS IS TYPICALLY VERY
11 FRAGILE DUE TO BOTH ADVANCED AGE AND TO COEXISTENT DISEASE
12 AND MANY OF THESE PATIENTS WILL HAVE MULTIPLE ORGAN SYSTEM
13 DISEASE. FOR INSTANCE, THEY'LL HAVE HEART PROBLEMS, THEY'LL
14 HAVE CENTRAL NERVOUS SYSTEM PROBLEMS FROM THINGS LIKE
15 PREVIOUS STROKES, DEMENTIA, ALZHEIMER'S AND SO FORTH.
16 THEY'LL HAVE CIRCULATORY PROBLEMS IN ADDITION TO THEIR
17 HEART. THEIR BLOOD VESSELS GOING TO THE VARIOUS PARTS OF
18 THE BODY WILL BE NARROWED FROM DISEASE. THEY CAN HAVE
19 GASTROINTESTINAL PROBLEMS, KIDNEY PROBLEMS.
20 MOST ELDERLY PATIENTS HAVE ALTERED IMMUNE SYSTEMS SO
21 THAT THEY RESPOND DIFFERENTLY TO INFECTION THAN YOUNGER
22 PATIENTS. AND IN GENERAL, COEXISTENT CONDITIONS THAT WOULD
23 BE TRIVIAL OR CERTAINLY NOT REQUIRE IMMEDIATE MEDICAL CARE
24 IN YOUNGER PATIENTS, THINGS LIKE BLADDER INFECTIONS AND
25 DEHYDRATION, CAN CAUSE EXTREME CHANGES IN THE GERIATRIC
3263
1 POPULATION AND IN FACT BE LIFE-THREATENING AND
2 THAT'S....THAT TYPE OF A PHENOMENON IS SEEN ALL THE TIME.
3 Q. IS THERE A RELATIONSHIP BETWEEN THE WORK THAT YOU HAVE
4 DONE IN YOUR MEDICAL PRACTICE AND YOUR EXPERTISE IN
5 DETERMINING CAUSE OF DEATH?
6 A. WELL, I BELIEVE SO. UNFORTUNATELY IN AN EMERGENCY ROOM
7 PRACTICE PATIENTS DIE IN THE EMERGENCY ROOM. PATIENTS DIE
8 MINUTES OR HOURS AFTER BEING ADMITTED TO THE HOSPITAL FROM
9 THE EMERGENCY ROOM. AND WHEN THE PATIENT COMES INTO THE
10 EMERGENCY ROOM WITH A PARTICULAR PROBLEM, THE WAY WE START
11 IS TO TAKE A HISTORY AND INVESTIGATE WHAT THEIR STATUS IS
12 BEFORE THEY ARRIVE, WHAT THEIR KNOWN MEDICAL PROBLEMS ARE,
13 WHAT MEDICATIONS THEY ARE TAKING, WHAT THEIR RECENT SYMPTOMS
14 ARE. THEN ONE EXAMINES THE PATIENT, DOES TESTS AND PUTS
15 EVERYTHING TOGETHER TO TRY TO DETERMINE WHAT COMBINATION OF
16 CIRCUMSTANCES HAS LED TO THE ACUTE EVENT AND THE --
17 SOMETIMES THE ACUTE EVENT RESULTS IN DEATH, AND IN THOSE
18 CIRCUMSTANCES, IT'S NECESSARY FOR US TO MAKE A DIAGNOSIS OR
19 AT LEAST A DIFFERENTIAL DIAGNOSIS.
20 A DIFFERENTIAL DIAGNOSIS IS TO LIST THE THINGS THAT
21 POSSIBLY CAN BE CAUSING OR CONTRIBUTING TO THE ACUTE EVENT.
22 AND, IN FACT, IT IS NOT AT ALL UNCOMMON FOR US TO BE ASKED
23 TO CERTIFY THE DEATH AND SIGN THE DEATH CERTIFICATE WHEN THE
24 PATIENT EXPIRES IN THE EMERGENCY ROOM AND I'VE DONE THAT, IF
25 NOT HUNDREDS OF TIMES, MANY, MANY DOZENS OF TIMES WHERE I'VE
3264
1 BEEN THE ONE TO CERTIFY THE CAUSE OF DEATH.
2 Q. HAVE YOU PREVIOUSLY BEEN QUALIFIED AS AN EXPERT IN THE
3 COURTS IN UTAH ON THE QUESTION OF CAUSE OF DEATH?
4 A. I HAVE.
5 Q. AND COULD YOU TELL US, PLEASE, HOW YOU GO ABOUT
6 GENERALLY DETERMINING A CAUSE OF DEATH?
7 A. IN THE SITUATION YOU JUST REFERENCED AS AN EXPERT?
8 Q. YES.
9 A. YES. THE WAY THAT'S TYPICALLY DONE IS TO GO THROUGH ALL
10 OF THE MEDICAL RECORDS AND OTHER DOCUMENTS THAT REFERENCE
11 THE CASE. SO WHAT I WOULD DO WOULD BE TO LOOK AT THE
12 MEDICAL RECORDS FROM THE TREATMENT FOR WHATEVER THE ACUTE
13 EVENT WAS, LOOK AT THE MEDICAL RECORDS THAT CAN BE OBTAINED
14 REGARDING ALL OF THE PAST MEDICAL HISTORY, AS FAR BACK AS
15 THEY CAN BE OBTAINED, TO REVIEW -- REVIEW TESTS AND X-RAYS
16 AND OTHER DIAGNOSTIC PROCEDURES. AND FREQUENTLY IT'S
17 POSSIBLE TO ACTUALLY HAVE THE -- TO HAVE THE X-RAY FILMS OR
18 THE SCANS OR THOSE TYPES OF MATERIALS TO ACTUALLY PHYSICALLY
19 REVIEW IN ADDITION TO THE DICTATED REPORT BY WHATEVER
20 RADIOLOGIST REVIEWED THAT.
21 IF AN AUTOPSY HAS BEEN PERFORMED ON THE DECEDENT, THEN
22 I REVIEW THE AUTOPSY REPORT. AND IN CERTAIN CIRCUMSTANCES
23 THERE IS INVESTIGATIVE REPORTS AND OTHER MATERIALS THAT WILL
24 ASSIST PIECING TOGETHER HISTORICAL DATA UPON WHICH IT'S
25 POSSIBLE TO FORM AN OPINION. ONCE IN A WHILE, WHEN
3265
1 APPROPRIATE, I'LL INTERVIEW PEOPLE THAT WERE INVOLVED IN THE
2 CASE IF THEY HAVE SOMETHING TO CONTRIBUTE BEYOND THE REVIEW
3 OF THE RECORDS, BUT THAT'S -- IT VARIES A LOT CASE BY CASE,
4 BUT THAT IN ESSENCE IS THE PROCESS THAT I GO THROUGH IN
5 FORMING AN OPINION IN TERMS OF CAUSE OF DEATH.
6 Q. IN THIS PARTICULAR CASE, YOU HAVE BEEN RETAINED AS AN
7 EXPERT TO RENDER AN OPINION CONCERNING CAUSE OF DEATH; IS
8 THAT RIGHT?
9 A. THAT'S CORRECT.
10 Q. AND YOU ARE AWARE THAT AN AUTOPSY OR AUTOPSIES HAVE BEEN
11 DONE AND REPORTS CREATED BY THE MEDICAL EXAMINER'S OFFICE?
12 A. I ATTENDED TWO OF THE AUTOPSIES PERSONALLY AND REVIEWED
13 ALL FIVE OF THE AUTOPSY REPORTS GENERATED BY THE UTAH STATE
14 MEDICAL EXAMINER.
15 Q. AND TELL US WHAT SIGNIFICANCE THE ATTENDANCE AT THE
16 AUTOPSIES AND THE REVIEW OF THE REPORTS HAS IN TERMS OF YOUR
17 OPINION AS TO CAUSE OF DEATH.
18 A. THE ATTENDANCE AT THE AUTOPSY AND THE REVIEW OF THE
19 REPORTS ALLOWS ME TO LOOK AT SPECIFICALLY WHAT THE ANATOMIC
20 FINDINGS WERE AT AUTOPSY. SO THAT BY ATTENDANCE, I CAN
21 ACTUALLY LOOK AND BY REVIEW OF THE REPORTS, I CAN SEE
22 SECONDHAND WHAT THE STATUS OF THE VARIOUS ORGANS AND TISSUES
23 WERE AT AUTOPSY. FOR INSTANCE, WHAT THE CONDITION OF THE
24 HEART WAS, WAS IT NORMAL, WAS IT ABNORMAL, WAS THERE AN
25 ARTIFICIAL VALVE IN THERE, WERE THE CORONARY ARTERIES
3266
1 NORMAL, WHAT'S THE CONDITION OF THE BRAIN, WHAT'S THE
2 CONDITION OF THE LUNGS, WHAT'S THE CONDITION OF ALL OF THE
3 OTHER ORGANS, WHAT'S THE CONDITIONS OF THE SKELETAL SYSTEM.
4 AND SO BASICALLY WHAT YOU ARE DOING IS IS YOU ARE --
5 YOU'VE GOT THE OPPORTUNITY TO LOOK DIRECTLY AT WHAT THE
6 STATUS OF THE PATIENT IS ANATOMICALLY AND THAT'S A LITTLE
7 BIT DIFFERENT THAN PHYSIOLOGICALLY. PHYSIOLOGICALLY MEANS
8 HOW THE BODY, THE MACHINE FUNCTION AND THERE ARE CERTAIN
9 THINGS YOU CAN DETERMINE BY AUTOPSY REGARDING PHYSIOLOGY AND
10 OTHERS YOU CAN'T. BUT THE AUTOPSY BASICALLY GIVES YOU THE
11 OPPORTUNITY TO REVIEW THE STATUS OF THE ANATOMY OF THE ORGAN
12 AND TISSUES OF THE DECEDENT.
13 Q. CONCERNING THE FIVE PATIENTS IN THIS CASE, HAVE YOU
14 REVIEWED ANY MEDICAL HISTORY PRIOR TO THEIR ADMISSION TO THE
15 DAVIS HOSPITAL?
16 A. I'VE REVIEWED A RATHER LARGE FILE OF DOCUMENTS ON THE
17 FIVE PATIENTS COMBINED.
18 Q. COULD YOU TELL US, PLEASE, IS THE REVIEW OF MEDICAL
19 HISTORY IMPORTANT FOR PURPOSES OF DETERMINING CAUSE OF
20 HEALTH?
21 A. IT IS.
22 Q. AND TELL US, PLEASE, WHY.
23 A. THE REVIEW OF THE MEDICAL HISTORY GIVES YOU AN IDEA
24 BEYOND WHAT CAN BE DETERMINED FROM THE ANATOMIC FINDINGS AT
25 AUTOPSY IN TERMS OF FUNCTIONALLY WHAT'S GONE ON WITH THESE
3267
1 PATIENTS IN THE PAST. WHAT KIND OF DISEASES THEY'VE
2 SUFFERED, WHAT KIND OF SURGERIES THEY'VE HAD, WHAT KIND OF
3 PROBLEMS HAVE THREATENED THEIR HEALTH AND WHETHER THEY
4 RECOVERED FROM THOSE COMPLETELY OR PARTIALLY OR NOT AT ALL.
5 THE MEDICAL HISTORY AND THE RECORDS THAT REFLECT THAT REALLY
6 GIVES YOU THE BEST PICTURE OF WHAT THEIR STATE OF HEALTH WAS
7 OVER THE PERIOD OF TIME REFLECTED BY THE RECORDS.
8 Q. HAVE YOU HAD EXPERIENCE IN THE USE OF MORPHINE?
9 A. IT WOULD BE A RARE DAY IN MY HOSPITAL PRACTICE THAT I
10 DIDN'T HAVE THE OPPORTUNITY TO USE MORPHINE ON A PATIENT.
11 Q. AND HAVE YOU -- IN TERMS OF YOUR OPINION, HAVE YOU
12 CONSIDERED THE EFFECTS OR LACK THEREOF OF MORPHINE
13 CONCERNING THESE FIVE PATIENTS?
14 A. I HAVE.
15 Q. AND COULD YOU GENERALLY JUST TELL US, PLEASE, THE
16 RELATIONSHIP OF MORPHINE IN TERMS OF YOUR EVALUATION OF
17 THEIR CIRCUMSTANCE?
18 MR. MAJOR: WELL, YOUR HONOR, WE'RE GOING TO OBJECT
19 IF WE'RE TALKING ABOUT THEIR OVERALL CIRCUMSTANCES OR ARE WE
20 TALKING ABOUT THEIR CAUSE OF DEATH?
21 MR. STIRBA: I CAN REPHRASE IT, YOUR HONOR.
22 THE COURT: OKAY.
23 Q. (BY MR. STIRBA) IN TERMS OF THEIR CAUSE OF DEATH.
24 A. I SPECIFICALLY LOOKED AT THE RELATIONSHIP OF THE
25 MORPHINE THAT THEY RECEIVED AND THEIR DEATHS.
3268
1 Q. YOU REFERENCED YOUR EXPERIENCE IN THE USE OF MORPHINE,
2 COULD YOU BE MORE SPECIFIC GENERALLY HOW YOU HAVE USED IT
3 AND YOUR EXPERIENCE WITH IT?
4 A. YES. MORPHINE IS THE...SOME PEOPLE MIGHT REFER TO IT AS
5 THE GOLD STANDARD BUT IT'S THE TIME-HONORED DRUG FOR RELIEF
6 OF PAIN AND WE USE IT IN A WIDE VARIETY OF CIRCUMSTANCES FOR
7 VARIOUS PATIENT PROBLEMS. AND, FOR INSTANCE, MORPHINE --
8 MORPHINE IS GIVEN ALMOST INVARIABLY IN PATIENTS WHO ARE
9 SUFFERING HEART ATTACKS.
10 MR. MAJOR: YOUR HONOR, I THINK THIS GOES BEYOND
11 THE SCOPE OF THE QUESTION.
12 THE COURT: DO YOU WANT TO --
13 MR. STIRBA: SURE.
14 Q. (BY MR. STIRBA) HOW IS IT USED, DOCTOR, HOW IS
15 MORPHINE USED?
16 A. IT'S USED FOR PAIN RELIEF IN SITUATIONS THAT REQUIRE IT.
17 Q. FOR EXAMPLE, IS IT USED IN CERTAIN CIRCUMSTANCES
18 CONCERNING CARDIAC DYSFUNCTION?
19 A. IT IS. IT'S INVARIABLY USED WHEN PATIENTS ARE SUFFERING
20 A HEART ATTACK AND IT'S USED ACTUALLY FOR TWO PURPOSES TO --
21 IT RELIEVES THE PAIN AND IT PRODUCES -- MORPHINE HAS A
22 CERTAIN EUPHORIC EFFECT. PATIENTS SUFFERING A HEART ATTACK
23 ARE UNDER A SEVERE AMOUNT OF BOTH PHYSICAL AND EMOTIONAL
24 STRESS BOTH OF WHICH CONTRIBUTE TO THE WORKLOAD ON THE
25 DAMAGED HEART, AND MORPHINE IS USED SPECIFICALLY TO RELIEVE
3269
1 THE PAIN AND THE STRESS ASSOCIATED WITH THAT ACUTE HEART
2 CONDITION.
3 Q. NOW, DOCTOR, UP THERE IN FRONT OF YOU YOU HAVE FIVE
4 BINDERS WHICH ARE THE EXHIBITS IN THIS CASE. THEY ARE THE
5 MEDICAL RECORDS FOR EACH ONE OF THE PATIENTS AND YOU ALSO
6 HAVE IN FRONT OF YOU A WHITE BINDER.
7 A. I DO.
8 Q. GENERALLY, COULD YOU TELL US, PLEASE, IN TERMS OF THE
9 WHITE BINDER, WHAT IS CONTAINED IN IT?
10 A. THE WHITE BINDER CONTAINS PORTIONS OF MEDICAL RECORDS
11 FROM EACH OF THE FIVE PATIENTS THAT ARE INVOLVED IN THIS
12 CASE.
13 Q. AND WHAT RELEVANCY DO THOSE PORTIONS OF THE MEDICAL
14 EXHIBITS HAVE IN TERMS OF THE OPINION THAT YOU ARE ABOUT TO
15 RENDER?
16 A. THEY ARE RELEVANT BOTH IN TERMS OF THE PRE-EXISTING
17 MEDICAL CONDITIONS THAT WERE SUFFERED BY THESE PATIENTS
18 WHICH I'VE TESTIFIED I TOOK INTO ACCOUNT IN FORMING MY
19 OPINIONS, AND THEY ALSO REFERENCE EVENTS THAT WERE GOING ON
20 DURING THE HOSPITALIZATIONS AT THE DAVIS HOSPITAL LEADING UP
21 TO THE DEMISE OF THESE PATIENTS.
22 Q. I WANT TO DIRECT YOUR ATTENTION TO PATIENT ELLEN
23 ANDERSON WHICH IS THE FIRST TAB IN THE BINDER.
24 A. OKAY.
25 MR. MAJOR: YOUR HONOR, I HATE TO INTERRUPT AND I
3270
1 DO APOLOGIZE TO THE COURT. I'VE HAD A CHANCE TO LOOK AT THE
2 BINDER AND WE DO HAVE SOME PROBLEMS WITH THAT BINDER THAT WE
3 WOULD LIKE TO ADDRESS BEFORE WE GET INTO IT TOO FAR.
4 THE COURT: OKAY. THEN YOU GET ANOTHER BREAK AND
5 THINK OF THIS AS YOUR LAST BREAK FOR THE MORNING AND SO WHY
6 DON'T YOU JUST LEAVE THE BINDERS AND YOUR NOTE PADS JUST ON
7 YOUR CHAIRS.
8 DURING THIS TIME, IT'S YOUR DUTY NOT TO CONVERSE AMONG
9 YOURSELVES OR TO CONVERSE WITH OUR ALLOW YOURSELVES TO BE
10 ADDRESSED BY ANY OTHER PERSON ON ANY SUBJECT OF THE TRIAL
11 AND IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
12 THE CASE IS FINALLY SUBMITTED TO YOU, SO IF YOU WILL TAKE A
13 BREAK AND THEN WHY DON'T WE HAVE YOU COME BACK AT 11.
14 (WHEREUPON THE JURY WAS EXCUSED.)
15 THE COURT: ALL RIGHT. PLEASE BE SEATED. THE
16 RECORD WILL REFLECT THE JURY HAS LEFT THE COURTROOM. OKAY,
17 WHAT IS THE PROBLEM?
18 MR. MAJOR: YOUR HONOR, THE PROBLEM IS SOME OF THE
19 RECORDS THAT ARE CONTAINED IN THIS BINDER ARE BEYOND THE
20 SCOPE OF WHAT WAS GIVEN TO US IN THE DOCTOR'S PROFFER, I
21 GUESS YOU'D SAY. IF I HAVE A COPY OF WHAT DR. ROTHFEDER
22 PROVIDED US, HE SAID ALL THE PATIENTS UNDER THE CARE OF DR.
23 WEITZEL AT NORTH DAVIS HOSPITAL GEROPSYCH UNIT FROM
24 DECEMBER 1995 AND JANUARY 1996. INCLUDED IN THE MEDICAL
25 RECORDS FOR EACH PATIENT ARE ADMISSIONS AND DISCHARGE
3271
1 SUMMARIES, PHYSICIAN'S ORDERS AND PROGRESS NOTES, NURSES'
2 NOTES, CONSULTATION REPORTS, MEDICATION SUMMARIES AND
3 MEDICAL DIRECTIVES, MASTER CARE PLANS AN HE GOES ON.
4 THERE'S NOTHING HERE INDICATING THAT HE WAS OR WAS INTENDING
5 TO REVIEW ANY OTHER RECORDS OUTSIDE OF THE HOSPITAL.
6 OUR PROBLEM IS THAT THE ELLEN ANDERSON, I WAS JUST
7 LOOKING AT THIS, YOUR HONOR, THERE IS MEDICAL RECORDS FROM
8 DR. WILDING'S OFFICE IN BRIGHAM CITY THAT WERE NOT PART OF
9 THE RECORDS THAT WERE AT THE DAVIS NORTH HOSPITAL. IF WE
10 HAD KNOWN THIS DOCTOR WAS GOING TO TESTIFY TO THESE THINGS,
11 WE WOULD HAVE HAD AN OPPORTUNITY TO CALL DR. KELLER.
12 BECAUSE ONE OF THE THINGS THAT'S LISTED IN HERE IS THE LAST
13 THING WE TALKED ABOUT EARLIER WHERE THEY HAD GIVEN ELLEN
14 ANDERSON AN X-RAY AND SAID THERE WAS A POSSIBLE TUMOR ON HER
15 LUNG. IF WE HAD KNOWN THAT DR. ROTHFEDER WAS GOING TO BE
16 TESTIFYING ABOUT THAT AND USING THAT AS PART OF HIS REASON
17 FOR DETERMINING DEATH, WE WOULD HAVE CALLED DR. KELLER AS
18 PART OF OUR CASE IN CHIEF AND HAD HIM ACTUALLY CLARIFY WHAT
19 THAT NOTE MEANS. WE'RE BASICALLY HERE ON SURPRISE. BASED
20 ON THE RECORD THAT WE HAD, WE ASSUMED THE ONLY RECORDS HE
21 HAS REVIEWED WERE THE RECORDS FROM DAVIS NORTH MEDICAL.
22 THE COURT: OTHER THAN WHAT YOU'VE JUST TALKED
23 ABOUT ELLEN ANDERSON, IS THERE ANY OTHER --
24 MR. MAJOR: I HAVE JUST LOOKED THROUGH HERE, YOUR
25 HONOR, AND APPARENTLY THERE'S A NUMBER OF OTHERS. IF I
3272
1 MIGHT JUST FLIP TO HERE REAL QUICK. IF THE COURT LOOK UNDER
2 JUDITH LARSEN I BELIEVE THERE'S SOME THAT ARE MARKED C.H.
3 WHICH I BELIEVE IS FROM COTTONWOOD HOSPITAL. THERE'S SOME
4 MEDICAL RECORDS FROM N.H. IN ENNIS ALLDREDGE'S FILE, AND SO
5 WE JUST FEEL THAT BASED ON THE COURT'S RULINGS IN THE PAST
6 ON GOING BEYOND THE SCOPE OF WHAT THE EXPERT HAS PROVIDED,
7 THAT THIS IS BEYOND THE SCOPE.
8 THE COURT: OKAY. YOUR RESPONSE?
9 MR. STIRBA: YES. I'M NOT SURE WHAT BEYOND THE
10 SCOPE MEANS IN THIS CONTEXT. EVERYTHING IN THE BINDER,
11 JUDGE, IS IN EVIDENCE IN THIS COURTROOM. IN FACT, MANY OF
12 THESE VERY SAME DOCUMENTS HAVE BEEN REFERRED TO WITH RESPECT
13 TO TREATING PHYSICIANS AND THE STATE'S OWN EXPERTS. THIS IS
14 ACTUALLY -- THESE ARE EXHIBITS IN THIS COURTROOM. I NEVER
15 UNDERSTOOD THAT THE COURT SAID THAT THE EXPERT HAD TO TELL
16 COUNSEL EACH AND EVERY DOCUMENT THAT THEY WERE GOING TO
17 REVIEW, MUCH LESS AN EXHIBIT IN THIS CASE FOR PURPOSES OF
18 ASSISTING WITH THEIR OPINION.
19 AND IN FACT, YOU MAY RECALL THAT A NUMBER OF THE
20 EXPERTS FROM THE STATE TESTIFIED ABOUT EITHER LOOKING AT
21 HISTORICAL RECORDS OR NOT LOOKING AT HISTORICAL RECORDS.
22 AND, QUITE FRANKLY, THERE ISN'T REALLY ONE EXPERT THAT HAS,
23 WITH ANY GREAT DEAL SPECIFICITY, EVER ADDRESSED PRECISELY
24 WHAT THEY WERE LOOKING AT. IN FACT, WE HAVE HEARD TESTIMONY
25 FROM THE STATE'S EXPERTS ABOUT DOCUMENTS -- AND SEE THIS IS
3273
1 THE PROBLEM.
2 I'M DEALING WITH THE EVIDENCE. I'M NOT DEALING WITH
3 COMING IN THE COURTROOM, YOU KNOW, ON THE DAY OF THE -- ON
4 THE DAY OF THE HEARING AND STICKING THESE THINGS IN FRONT OF
5 MY FACE, WHICH IS WHAT HAPPENED WITH THEIR EXPERTS AND
6 FEHLAUER COMES IN WITH A GERIATRIC DOSAGE HANDBOOK WHICH
7 ISN'T IN HIS REPORT, HE NEVER TOLD ME ABOUT IT AND THEY COME
8 IN WITH THESE DEMONSTRATIVE AIDS AND DO YOU SEE ME GET TOO
9 EXCITED ABOUT IT? NO. AND I'LL TELL YOU WHY IS BECAUSE THE
10 IMPORTANCE IS THE OPINION. YOU ASSUME THE EXPERTS OBVIOUSLY
11 ARE GOING TO PERHAPS CONSULT ADDITIONAL SOURCES. OBVIOUSLY
12 NOBODY KNEW BACK ON THE 5TH OF MAY PRECISELY WHAT THE
13 EXHIBIT WERE GOING TO BE IN THIS -- IN THIS TRIAL FOR
14 PURPOSES OF DIVINING WHAT ALL SHOULD BE LOOKED AT.
15 AND ALL DR. ROTHFEDER IS DOING IS SAYING, OKAY, HERE IS
16 MY OPINION. AND BY THE WAY, THE VERY EVIDENCE THAT HAS BEEN
17 ADMITTED IN THIS COURTROOM, WHICH IS THE MEDICAL HISTORY,
18 WHICH IS OBVIOUSLY TREMENDOUSLY IMPORTANT IN TERMS OF
19 UNDERSTANDING THESE PATIENTS, HAS CERTAIN INFORMATION IN IT
20 WHICH IS PROBATIVE AND RELEVANT TO WHAT I'M GOING TO OPINE.
21 AND IT'S QUITE A BIT DIFFERENT -- THIS IS QUITE A BIT
22 DIFFERENT APPROACH THAN HAVING EXPERTS COME IN AND TALK
23 ABOUT BOOKS AND TALK ABOUT CHARTS AND TALK ABOUT ALL -- ALL
24 MATTER OF THINGS WHICH WERE NEVER IN THE REPORT, WERE NEVER
25 REFERENCED IN THE REPORT, WERE NEVER IDENTIFIED IN THE
3274
1 REPORT. AND I EMPHASIZE ONCE AGAIN, DID YOU SEE DEFENSE
2 COUNSEL GETTING TOO EXCITED ABOUT IT? NO, BECAUSE OBVIOUSLY
3 WHAT THE IMPORTANCE IS IS THE OPINION.
4 AND THE DOCUMENTS -- NO, THERE'S NO EXPERT REPORT, YOUR
5 HONOR, THAT I'VE EVER SEEN OR I'VE EVER HEARD OF THAT
6 REQUIRES A SPECIFIC CONCRETE DELINEATION OF EVERY LITTLE
7 ITEM THAT SOMEBODY HAS LOOKED AT FOR PURPOSES OF RENDERING
8 OPINION. THAT'S JUST NOT THE WAY THE LAW IS PRACTICED. AND
9 I WOULD SUBMIT THAT WE'RE DEALING WITH THE EXHIBITS.
10 THERE'S NOTHING IN THIS WHITE BINDER THAT ISN'T IN EVIDENCE
11 IN THIS COURTROOM.
12 DR. WILDING, FOR EXAMPLE, YOU MIGHT RECALL, THAT HAS
13 COME UP ALREADY BEFORE THE JURY AT LEAST TWO OR THREE TIMES
14 AND, IN FACT, DR. CROOKSTON TALKED ABOUT IT, BECAUSE HE WAS
15 OF THE OPINION -- AND THIS WASN'T IN HIS REPORT EITHER,
16 ABOUT THE CIRCUMSTANCES OF THE PULMONARY COMPLICATIONS THAT
17 MS. ANDERSON HAD ON ADMISSION AND I ASKED HIM ABOUT WHETHER
18 OR NOT IF THAT PULMONARY COMPLICATION PRE-EXISTED HER
19 ADMISSION, WOULD THAT BE SIGNIFICANT TO HIM AND HE SAID,
20 WELL, I HAVEN'T REVIEWED THE HISTORY. BUT WE TALKED ABOUT
21 DR. WILDING'S RECORDS AND THE FACT THERE WAS AN X-RAY DONE
22 ON NOVEMBER 18TH OF 1995, WHICH SHOWS SHE HAD PNEUMONIA.
23 BUT HERE HE IS TESTIFYING ABOUT IT AND WE'RE TALKING ABOUT
24 THE EVIDENCE AND I'M ENTITLED TO CROSS HIM ON IT AND HE'S
25 TELLING ME THINGS THAT AREN'T IN HIS REPORT AND, YOU KNOW,
3275
1 YOU GO ON.
2 IT ISN'T A PERFECT WORLD AND THIS CERTAINLY IS NOT
3 ANYTHING THAT ANYBODY CAN CLAIM -- HOW CAN YOU POSSIBLY
4 CLAIM SURPRISE WHEN YOU ARE DEALING WITH THE EXHIBITS WHICH
5 HAVE BEEN IN EVIDENCE IN THIS COURTROOM PROBABLY FOR THE
6 LAST TWO WEEKS? I MEAN -- AND AS FAR AS IF THERE'S A
7 NECESSITY NOW TO CALL SOMEBODY, THERE IS A REBUTTAL CASE.
8 AND I ASSUME IN THAT REBUTTAL CASE, IF THERE ARE ISSUES THAT
9 COME UP THAT TRULY NEED SOME KIND OF EXPLANATION, I'M SURE
10 THOSE WITNESSES WILL BE AVAILABLE. WE WENT THROUGH THIS
11 BEFORE WITH WILDING AND AS I UNDERSTOOD, THE ARGUMENT WAS
12 SURPRISE THEN AND AS I UNDERSTOOD THE COURT BASICALLY SAYING
13 WILDING IS A TREATING PHYSICIAN OF ELLEN ANDERSON, SHE IS
14 NAMED ON YOUR WITNESS LIST. HOW COULD YOU POSSIBLY BE
15 SURPRISED THAT ALL OF A SUDDEN DR. WILDING'S RECORDS ARE
16 GOING TO SHOW UP IN THIS COURTROOM?
17 SO IN ANY EVENT, JUDGE, RESPECTFULLY, THIS IS ALL THAT
18 IS CONTAINED IN HERE IS THE EVIDENCE. THERE'S NOTHING ELSE,
19 THERE'S NO SURPRISE. AND DOCTOR -- IN OTHER WORDS, LOOK AT
20 THIS WAY, JUDGE, I CERTAINLY THINK I COULD DO THIS: IF THIS
21 WHITE BINDER IS A PROBLEM, I COULD ALWAYS ASK HIM -- I COULD
22 TAKE SOME EVIDENCE RIGHT NOW AND I COULD WALK IT OVER AND WE
23 COULD SPEND ALL THE HOURS OF HIM GOING THROUGH STUFF AND I
24 COULD PUT IT ON THE ELMO, AND AS LONG AS IT'S WITHIN THE
25 PURVIEW OF THE OPINION, I COULD ASK HIM ABOUT IT. IT'S
3276
1 PERFECTLY PROPER. JUST LIKE HE COULD HAVE SAT BACK THERE IN
2 THE BACK OF THE COURTROOM AND LISTENED TO ALL THIS TESTIMONY
3 AND COME IN AND SUMMARIZE IT. BECAUSE EACH ONE OF OUR
4 REPORTS SAYS I THINK WHAT APPROPRIATELY IT SHOULD HAVE SAID,
5 AND THAT IS, AND I THINK THE COURT WILL APPRECIATE THIS,
6 IT'S NOT OUR CASE IN CHIEF. WE'RE NOT THE PROPONENT.
7 IT'S MUCH EASIER TO PREPARE AN EXPERT REPORT AS A
8 PROPONENT. THE DEFENSE OBVIOUSLY HAS TO SAY, THIS IS WHAT
9 OUR GUYS ARE GOING TO SAY, BUT GUESS WHAT? THINGS ARE GOING
10 TO HAPPEN IN THE TRIAL, THINGS MAY COME UP WITH THE
11 PROSECUTION WITNESSES WHICH OBVIOUSLY WE NEED TO REACT TO.
12 THERE'S NO WAY WE COULD POSSIBLY ANTICIPATE EVERYTHING.
13 AND, QUITE FRANKLY, THIS ISN'T REALLY ANY DIFFERENT THAN
14 WHAT WE PUT IN OUR REPORT OTHER THAN WE HAVE NOW ENCOMPASSED
15 THE ACTUAL EVIDENCE IN THIS TRIAL, WHICH WE COULD NOT HAVE
16 KNOWN ON THE 5TH, TO ASSIST THE JURY AND TO ASSIST
17 DR. ROTHFEDER FOR PURPOSES OF WHAT HE'S GOING TO SAY. SO I
18 WOULD SUBMIT IT, YOUR HONOR.
19 THE COURT: OKAY.
20 MR. MAJOR: QUICKLY A RESPONSE, YOUR HONOR. I
21 BELIEVE IT'S OUR UNDERSTANDING, AND MAY BE -- I MAY BE
22 MISTAKEN ON THIS. BUT MY UNDERSTANDING IS THESE DOCUMENTS
23 WERE OBTAINED AFTER WE RECEIVED THE EXPERT REPORT AND MAYBE
24 I'M MISTAKEN ON THAT, BUT I -- WE MADE SIMILAR ARGUMENTS AND
25 I GUESS WE COULD MAKE THE SAME ARGUMENT MR. STIRBA IS MAKING
3277
1 ON THIS PARTICULAR CASE WITH NURSE CALVERT. THIS COURT
2 WOULD NOT ALLOW HER TO TESTIFY AS AN EXPERT OPINION BECAUSE
3 HER TESTIMONY AS TO WHAT WAS ON THE CHART WENT BEYOND WHAT
4 WAS TOLD ON HER REPORT. EVERYTHING THAT SHE HAD ON THAT
5 CHART THAT SHE WAS GOING TO TESTIFY TO HAD BEEN ADMITTED
6 INTO EVIDENCE, IT FOLLOWED THE EXACT SAME LINE --
7 THE COURT: NO. BUT WHAT SHE WAS -- YOU KNOW, I
8 GUESS THE THING THAT I'M CONCERNED ABOUT IS THAT, YOU KNOW,
9 IF YOU ARE MAKING AN ARGUMENT, MAKE IT, YOU KNOW, TO ME AND
10 DON'T MAKE IT TO THE PRESS. I MEAN, WHAT YOUR ARGUMENT IS
11 SAYING IS THAT, GEE, JUDGE, YOU'VE DONE IT THIS WAY AND THEN
12 YOU ARE NOT DOING IT THAT WAY. I'LL TELL YOU RIGHT NOW
13 WE'RE TALKING ABOUT TWO DIFFERENT THINGS.
14 EARLIER IN THIS CASE ON EXPERT REPORTS I SAID IF THEY
15 ARE GOING TO TESTIFY ABOUT AN OPINION THAT IS NOT IN THEIR
16 REPORT, IT'S NOT GOING TO HAPPEN. AND IF THIS INDIVIDUAL
17 EXPERT WITNESS OR ANY OTHER DEFENDANT'S EXPERT WITNESS IS
18 GOING TO TESTIFY ABOUT AN OPINION THAT ISN'T IN THEIR
19 REPORT, IT ISN'T GOING TO HAPPEN. NOW YOUR ARGUMENT IS NOT
20 THAT IT'S OPINION. YOUR ARGUMENT IS HE SAYS HE REVIEWED
21 THESE DOCUMENTS AND NOW HE'S GOT OTHER DOCUMENTS THAT ARE
22 ALL IN EVIDENCE AND THAT WE'VE RECEIVED.
23 MR. MAJOR: NO. WHAT I'M ARGUING, YOUR HONOR, IS
24 THAT HIS OPINION THAT WE RECEIVED IN HIS REPORT ONLY WAS
25 BASED ON THE MEDICAL RECORDS FROM THE DAVIS NORTH HOSPITAL.
3278
1 HE IS NOW COMING INTO THIS COURT BASING HIS OPINION ON
2 OUTSIDE RECORDS THAT WERE NOT LISTED IN HIS REPORT AND IS
3 NOT THE SAME -- THIS WOULD NOT BE THE SAME REPORT BECAUSE
4 HE'S BASED HIS REPORT NOW ON OUTSIDE RECORDS THAT WERE NOT
5 CONSIDERED AT THE TIME HE GAVE THIS REPORT. SO THIS IS NOT
6 AN ACCURATE REPORT IF YOU ALLOW THAT OTHER INFORMATION IN.
7 THE COURT: WELL, I SEE THE THINGS BEING TWO
8 TOTALLY DIFFERENT THINGS. ONE IS, IS THERE A DIFFERENT
9 OPINION? AND WITH NURSE KAUFMAN -- YOUR EXAMPLE, AS NURSE
10 KAUFMAN STATED ON HER CHART THAT'S AT THE ON THE BOTTOM OF
11 ALL OF THOSE 20 TO 32, IT WAS THAT SHE HAD GONE THROUGH THE
12 RECORDS, THEN MADE AN INTERPRETATION OF A LETHARGY TO
13 AGITATION STAGE FROM A ONE TO A THREE AND HAD MADE THAT.
14 THERE WAS NOTHING ABOUT THAT -- AND THEN SHE WAS GOING TO
15 GIVE THAT AS HER OPINION. IT WASN'T THAT SHE HAD REVIEWED
16 THE RECORDS THAT WAS THE PROBLEM. IT WAS THAT THAT ISSUE
17 WASN'T IN THE OPINION RECORD -- I MEAN, THE OPINION REPORT
18 THAT YOU HAD GOTTEN BEFORE TRIAL.
19 THIS WITNESS IN WHAT YOU HAVE READ, WHAT YOU ARE
20 TELLING ME IS THAT HE SAID HE'S DONE THIS. AND DURING YOUR
21 ARGUMENT, I LOOKED THROUGH ALL OF THE EXPERT REPORTS THAT
22 HAVE BEEN SUBMITTED TO ME EARLIER AND MOST PEOPLE SAY, I'VE
23 LOOKED AT THE RECORDS ON THESE PEOPLE, I'VE REVIEWED THE
24 MEDICAL RECORDS OR SOME OF THEM SAYS I'VE REVIEWED THE
25 RECORDS AT THE HOSPITAL, YOUR EXPERTS, AND THEN THEY CAME IN
3279
1 AND THEY TESTIFIED ABOUT THINGS BEYOND THAT. ARE YOU SAYING
2 THAT WHAT MR. STIRBA JUST SAID, DON'T GIVE THEM THE WHITE
3 BINDER BUT THEN GIVE IT TO HIM HERE AT TESTIMONY AND HE
4 CAN'T TALK ABOUT IT?
5 MR. MAJOR: AND I MAY BE MISTAKEN BUT I UNDERSTOOD
6 THE TESTIMONY FROM OUR EXPERT WITNESSES WAS BASED ON -- AS
7 FAR AS THE MEDICAL RECORDS, WAS BASED ON CROSS-EXAMINATION.
8 IT WAS NOT SOMETHING THAT WE OURSELVES HAD SUBMITTED TO THE
9 DOCTOR, BUT I MAY BE MISTAKEN ON THAT, YOUR HONOR. BUT WE
10 WOULD SUBMIT IT.
11 THE COURT: OKAY. WELL, ON THE BASIS OF THE ISSUE
12 OF WHETHER THIS IS BEYOND HIS OPINION AND THE EXPERT REPORT
13 AND HOW I'VE PREVIOUSLY RULED, YOU KNOW, WHAT HE HAS
14 REVIEWED, IF HE HAS REVIEWED THINGS THAT ARE NOT IN THE
15 RECORD AND IS NOT PART OF THE EVIDENCE IN THIS CASE, I WOULD
16 NOT ALLOW THAT. BUT WHAT HE HAS REVIEWED IS DOCUMENTS THAT
17 ARE IN EVIDENCE AND HE IS NOT -- IT'S NOT A DIFFERENT
18 OPINION, IT'S WHAT HE'S REVIEWED, AND ON THE BASIS OF THAT,
19 HE CAN TESTIFY ABOUT IT. HOW IS OUR COURT REPORTER DOING ON
20 FINGERS? OKAY. LET'S TAKE A TEN-MINUTE BREAK. WE'LL JUST
21 TELL THE JURY IT WILL BE ABOUT TEN MINUTES.
22 (A BRIEF RECESS WAS TAKEN.)
23 THE COURT: PLEASE BE SEATED. THE RECORD WILL
24 REFLECT THAT THE JURY IS BACK. MR. STIRBA, IF YOU WOULD
25 LIKE TO CONTINUE.
3280
1 MR. STIRBA: THANK YOU, YOUR HONOR.
2 Q. (BY MR. STIRBA) DOCTOR, DIRECTING YOUR ATTENTION TO
3 THE BINDERS IN FRONT OF YOU, SPECIFICALLY PATIENT ELLEN
4 ANDERSON --
5 THE COURT: PARDON ME. IF I COULD JUST -- THE JURY
6 HAS JUST ASKED A QUESTION THAT WHEN THE PROJECTOR IS NOT ON
7 THAT THOSE LIGHTS BE TURNED OFF. I GUESS IT'S GIVING A
8 GLARE AND SOME THINGS. OKAY. DOES THAT TAKE CARE OF IT?
9 ALL RIGHT. THANKS.
10 Q. (BY MR. STIRBA) DOCTOR, WE WERE -- YOU HAVE THE
11 BINDERS IN FRONT OF YOU --
12 A. I DO.
13 Q. -- CONCERNING THE PATIENT ELLEN ANDERSON? DO YOU HAVE
14 AN OPINION AS TO THE CAUSE OF DEATH OF ELLEN ANDERSON?
15 A. I DO.
16 Q. AND WHAT IS YOUR OPINION?
17 A. I BELIEVE THAT MRS. ANDERSON DIED OF PNEUMONIA WHICH HAD
18 BEEN PRESENT FOR SOME TIME SUPERIMPOSED ON OLD AGE AND A
19 CARDIAC CONDITION.
20 Q. DO YOU HAVE AN OPINION AS TO WHETHER OR NOT MORPHINE
21 CAUSED OR CONTRIBUTED TO HER DEATH?
22 A. I DO.
23 Q. AND WHAT IS THAT OPINION?
24 A. I DO NOT BELIEVE THAT THE MORPHINE EITHER CAUSED OR
25 CONTRIBUTED TO HER DEATH.
3281
1 Q. NOW IF YOU GO INTO THE WHITE BINDER, THERE ARE SOME
2 DOCUMENTS FROM THE EVIDENCE RELATING TO THE CIRCUMSTANCES OF
3 PATIENT ELLEN ANDERSON. AND SPECIFICALLY IF YOU COULD LOOK
4 AT THE FIRST PAGE WHICH IS A PROGRESS NOTE MED-172, DO YOU
5 HAVE THAT IN FRONT OF YOU?
6 A. I DO.
7 Q. AND IT SAYS, 12/30/95 DR. WEITZEL WRITES IN THE SECOND
8 PARAGRAPH, HE PUTS A: PROBABLE M.I., RECOMMEND AUTOPSY. P:
9 WILL RELEASE TO FAMILY. DID THAT RECORD HAVE ANY
10 SIGNIFICANCE TO YOU FOR PURPOSES OF YOUR OPINION AS TO HER
11 CAUSE OF DEATH?
12 A. IT DID.
13 Q. AND TELL US, PLEASE, WHAT SIGNIFICANCE IT HAD.
14 A. IT APPEARS TO ME THAT DR. WEITZEL IN THIS RECORD IS
15 OPINING ON WHAT MIGHT HAVE CAUSED HER DEATH. I RECALL THAT
16 THIS PATIENT DIED VERY SHORTLY AFTER SHE WAS ADMITTED TO THE
17 HOSPITAL. AND ONE OF THE THINGS THAT HE'S CONSIDERING --
18 WHAT HE'S CONSIDERING AS PROBABLE IS AN M.I. AN M.I. MEANS
19 MYOCARDIAL INFARCTION AND MYOCARDIAL INFARCTION IS A
20 TECHNICAL TERM FOR AN ACUTE HEART ATTACK.
21 HE REFERENCES THAT THE ELECTROCARDIOGRAM THAT WAS
22 PERFORMED ON ADMISSION WAS ABNORMAL AND, IN FACT, I REVIEWED
23 THAT ELECTROCARDIOGRAM AND IT WAS ABNORMAL. IT SHOWED
24 RHYTHM ABNORMALITIES, RAPID HEART RATE, IRREGULARITY OF THE
25 RHYTHM AND WHAT WE CALL T-WAVE CHANGES.
3282
1 Q. AND PERHAPS IF I COULD STOP YOU RIGHT THERE. IF YOU
2 FLIP IN THAT BINDER, IF YOU FLIP ABOUT FOUR PAGES AFTER THE
3 INITIAL PROGRESS NOTE, YOU DO HAVE THE REPORT OF THE E.K.G.;
4 IS THAT RIGHT?
5 A. THAT'S RIGHT.
6 Q. AND THAT WOULD BE NUMBER 173?
7 A. THAT'S CORRECT.
8 Q. AND TELL US HOW YOU INTERPRET THAT REPORT.
9 A. I INTERPRET THE REPORT CONSISTENT WITH THE ACTUAL
10 WRITTEN INTERPRETATION ON THE REPORT BY THE -- IT LOOKS LIKE
11 DR. BURTENSHAW AND THERE'S A SINUS TACHYCARDIA.
12 Q. WHAT IS THAT?
13 A. THAT MEANS THAT THERE'S A RAPID HEART RATE WELL ABOVE
14 NORMAL. THE HEART RATE IS 107. A NORMAL HEART RATE WOULD
15 TYPICALLY BE IN THE 70'S AND SO THAT THE NORMAL PACEMAKER OF
16 THE HEART IS RACING IN RESPONSE TO SOME KIND OF MEDICAL
17 PROBLEM AND THERE'S A MARKED SINUS ARRHYTHMIA.
18 Q. WHAT IS THAT?
19 A. WHAT THAT MEANS IS THAT THE ACTUAL RHYTHM IS NOT
20 REGULAR, IT'S IRREGULAR. SO SOMETHING IS IRRITATING THE
21 PACEMAKER TO CAUSE THE RAPID RATE AND THE IRREGULAR RATE.
22 Q. IT ALSO SAYS THAT THERE'S A NONSPECIFIC O T-WAVE
23 ABNORMALITY, WHAT IS THAT?
24 A. THERE'S NON -- IT ACTUALLY SAYS NONSPECIFIC T-WAVE
25 ABNORMALITY AND THAT C -- THAT'S A C AT THE END OF
3283
1 NONSPECIFIC.
2 Q. THANK YOU.
3 A. THE T-WAVE IN THE ELECTROCARDIOGRAM REPRESENTS
4 REPOLARIZATION OF THE VENTRICLE, THE BIG MUSCULAR PART OF
5 THE HEART. ELECTRICALLY WHAT HAPPENS IS THE HEART -- FOR
6 EACH BEAT, THE HEART DISCHARGES ELECTRICALLY AND THEN KIND
7 OF RECHARGES AND DURING THE RECHARGING PROCESS SOMETHING IS
8 WRONG BECAUSE THE MORPHOLOGY, THE FORM OF THE T-WAVE IS
9 ABNORMAL. SO THERE'S SOMETHING WRONG WITH THE
10 REPOLARIZATION OF THE CONDUCTING SYSTEM.
11 AND OF INTEREST AS WELL IS THERE'S LOW VOLTAGE Q.R.S.
12 THE Q.R.S. REFERS TO THE PORTION OF THE TRACING WHERE THE
13 VENTRICLE, AGAIN THE BIG MUSCULAR PUMP, DISCHARGES. AND
14 NORMALLY THERE'S -- NORMALLY THE AMPLITUDE, THE SIZE OF THE
15 Q.R.S. WAVE, IS OF A CERTAIN SIZE. IN THIS CASE THEY ARE
16 LITTLE TINY Q.R.S.'S AND IT'S KIND OF -- THE ANALOGY WOULD
17 KIND OF BE LIKE A BATTERY THAT DOESN'T HAVE ALL OF ITS
18 JUICE. FOR WHATEVER REASON, THE VENTRICLE ELECTRICALLY
19 DOESN'T HAVE ALL THE JUICE IT SHOULD HAVE AND THERE'S --
20 THIS IS REFLECTED BY LOW VOLTAGE.
21 Q. IS THIS FINDING IN THIS E.K.G. THAT WAS DONE ON PATIENT
22 ANDERSON CONSISTENT WITH A CARDIAC DYSFUNCTION?
23 A. IT IS. IT'S CONSISTENT WITH THE HEART NOT OPERATING
24 NORMALLY ELECTRICALLY.
25 Q. NOW, I WANT TO TURN NEXT TO THERE'S SOME NURSES' NOTES
3284
1 190 AND 191 AND I WANT TO SKIP OVER THEM FOR THE TIME BEING
2 AND TURN TO 174. AND THAT IS A REPORT DONE OF A CHEST
3 X-RAY; IS THAT RIGHT?
4 A. THAT'S CORRECT.
5 Q. AND TELL US, PLEASE, WHAT SIGNIFICANCE IF ANY THAT HAS
6 TO YOUR OPINION THAT PATIENT ANDERSON DIED AS A RESULT OF
7 PNEUMONIA.
8 A. THIS WAS -- THE CHEST X-RAY DATED 12/30/95, THIS WAS
9 MRS. ANDERSON'S ADMISSION CHEST X-RAY AND IT'S ABNORMAL.
10 THERE IS CONSOLIDATION AND AN INFILTRATIVE PROCESS IN THE
11 BASES OF BOTH LUNGS. AND THE REPORT STATES THAT THIS
12 CONSOLIDATIVE DENSITY IS SUGGESTIVE OF A BILATERAL
13 INFILTRATE PROCESS SUCH AS PNEUMONITIS PNEUMONIA VERSUS
14 PULMONARY EDEMA, WHICH IS FLUID IN THE LUNGS FROM HEART
15 FAILURE OR BLEEDING.
16 NOW, UNDERSTAND WHEN ONE LOOKS AT A CHEST X-RAY AND ONE
17 SEES A SHADOW, IN OTHER WORDS, NORMALLY THE LUNG IS FULL OF
18 AIR, IT DOESN'T HAVE FLUID IN IT. WHEN ONE SEES A SHADOW ON
19 THE LUNG, THAT REPRESENTS FLUID IN THAT PORTION OF THE LUNG
20 RATHER THAN THE AIR THAT'S SUPPOSED TO BE THERE.
21 USUALLY, IN MOST CASES, JUST GENERALLY SPEAKING LOOKING
22 AT A CHEST X-RAY, IT'S NOT POSSIBLE TO TELL DEFINITIVELY
23 FROM LOOKING AT THE FILM WHETHER THAT FLUID, THAT INFILTRATE
24 REPRESENTS INFECTION, IN OTHER WORDS, PUSS, FLUID FROM
25 INFECTION FROM PNEUMONIA OR WHETHER IT REPRESENTS FLUID SUCH
3285
1 THAT WE CALL PULMONARY EDEMA WHICH IS JUST BASICALLY BLOOD
2 TYPE FLUID BACKING UP FROM A CONGESTIVE HEART, OR FOR THAT
3 MATTER, WHETHER IT REPRESENTS A TUMOR OR SOMETHING ELSE.
4 ALL YOU KNOW IS THERE'S FLUID RATHER THAN AIR IN THE LUNG
5 THAT'S ABNORMAL AND IT REQUIRES CLINICAL CORRELATION, OR IN
6 THIS CASE AN AUTOPSY TO DETERMINE WHAT THAT FLUID THAT YOU
7 ARE SEEING ON THIS TWO-DIMENSIONAL CHEST X-RAY ACTUALLY
8 REPRESENTED.
9 Q. DO YOU RECALL IN TERMS OF YOUR REVIEW OF THE AUTOPSY
10 REPORT, DID THAT HAVE ANY RELATIONSHIP TO THE OPINION THAT
11 YOU HAVE EXPRESSED?
12 A. WELL, IT DID. THE AUTOPSY SHOWED THAT AN AREA OF THIS
13 FLUID IN THE LUNG, IN THE LEFT LUNG BASE WAS, IN FACT,
14 PNEUMONIA. SO IN RETROSPECT, KNOWING THAT THERE WAS
15 PNEUMONIA THERE, ONE CAN GO BACK AND LOOK AT THIS X-RAY AND
16 SAY, WELL, THE FLUID THAT -- THE FLUID THAT WAS SEEN, THE
17 INFILTRATE, THE DENSITY THAT WAS SEEN IN THAT AREA WAS, IN
18 FACT, PNEUMONIA, INFECTION.
19 Q. NOW IF YOU WOULD TURN PAST THE E.K.G. REPORT, PAST --
20 THERE'S A MEDICATION ADMINISTRATIVE RECORD, YOU'LL COME
21 TO -- IT HAS AT THE BOTTOM WILD-2.
22 A. I SEE IT.
23 Q. AND CAN YOU TELL US WHAT THIS IS?
24 A. YES. THIS IS -- THIS IS A PHYSICIAN NOTE, A PROGRESS
25 NOTE OR WHATEVER YOU WANT TO CALL IT, SIGNED BY A PHYSICIAN
3286
1 AND I BELIEVE IT'S ACTUALLY DR. KELLER, IF I'M NOT MISTAKEN
2 WHO SIGNED THIS. AND THIS WAS DATED NOVEMBER 18TH, '95,
3 MAYBE FIVE, SIX WEEKS PRIOR TO THE HOSPITAL ADMISSION. AT
4 WHICH TIME MRS. ANDERSON WAS IN THE BOX ELDY COUNTER -- BOX
5 ELDER COUNTY PIONEER MEMORIAL NURSING HOME AND THIS IS -- SO
6 THIS IS A DOCTOR'S NOTE EVIDENCING HER CONDITION AT THE TIME
7 THAT THE DOCTOR WAS SEEING HER IN THE NURSING HOME.
8 Q. AND I NOTICE UNDER DOCTOR'S OBSERVATION AND NEW FINDINGS
9 TOWARDS THE BOTTOM THERE'S A STATEMENT RELATING TO AN X-RAY
10 AND THEN AN ARROW IT SAYS, POSSIBLE LUNG TUMOR.
11 A. RIGHT.
12 Q. WHAT SIGNIFICANCE DOES THAT HAVE?
13 A. WELL, THE DOCTOR APPARENTLY HAD LOOKED AT AN X-RAY IN
14 WHICH THERE WAS A DENSITY, AN INFILTRATE. WHEN DR. KELLER
15 LOOKED AT THAT, ONE OF HIS CONCERNS WAS THAT MAYBE THIS WAS
16 A TUMOR. AS I HAD SUGGESTED BEFORE, LOOKING AT THE FILM,
17 SUCH AN INFILTRATE COULD BE TUMOR OR PNEUMONIA OR HEART
18 FAILURE SO HIS CONCERN AT THIS POINT IN TIME IS, HEY, MAYBE
19 THIS IS A LUNG TUMOR THAT WE'RE LOOKING AT. AND, IN FACT,
20 THE DISPOSITION IN HIS MIND TO FIND OUT WAS, HE'S GOING TO
21 CHECK ON THE REPORT FROM THE RADIOLOGIST TO SEE WHAT THE
22 RADIOLOGIST HAS TO SAY ABOUT IT, WHAT HE THINKS IT IS BASED
23 UPON THE X-RAY APPEARANCE.
24 Q. NOW, IF YOU TURN ACTUALLY ANOTHER PAGE TO WILD-27? IT
25 WOULD NOT -- NOT THE NEXT PAGE BUT THE PAGE AFTER THAT.
3287
1 A. YES, I SEE THAT.
2 Q. AND WHAT IS THAT?
3 A. THERE'S ACTUALLY TWO THINGS ON THE PAGE. THERE'S AN
4 X-RAY REPORT OF THIS X-RAY THAT WE'VE JUST TALKED ABOUT
5 DATED 11/18/95. BELOW THAT THERE'S...IT LOOKS LIKE A
6 URINALYSIS RESULT. DO YOU WANT ME TO COMMENT UPON THE X-RAY
7 REPORT?
8 Q. YES, THAT'S WHAT I'M ASKING YOU ABOUT.
9 A. ALL RIGHT. THE RADIOLOGIST WHO READ THIS NOTED THAT
10 THERE IS INCREASING ATELECTASIS AND/OR PNEUMONIA IN BOTH
11 LUNG BASES AND HIS IMPRESSION WAS BIBASILAR ATELECTASIS
12 AND/OR PNEUMONIA, RIGHT GREATER THAN LEFT. AND SO BASICALLY
13 WHAT THE RADIOLOGIST HERE IS SAYING IS I GUESS INFERENTIALLY
14 HE'S NOT REALLY CONSIDERING THAT THIS IS A TUMOR BUT IS
15 SAYING THAT THIS IS EITHER ATELECTASIS, WHICH IS ACTUALLY
16 COLLAPSE OF SEGMENTS, OR PNEUMONIA OR BOTH.
17 Q. AND WHAT SIGNIFICANCE DOES THIS FINDING HAVE, IF ANY,
18 CONCERNING YOUR OPINION THAT THE CAUSE OF DEATH WAS
19 PNEUMONIA?
20 A. WELL, I THINK THAT THIS INDICATES THAT -- LET'S WORK
21 BACKWARDS. WE KNOW AT AUTOPSY THAT THE PATIENT HAD
22 PNEUMONIA. WE NOW KNOW THAT THE X-RAY THAT WAS TAKEN ON
23 ADMISSION JUST SHORTLY PRIOR TO HER DEATH ON DECEMBER 30TH
24 CONTAINED AN INFILTRATE THAT IN RETROSPECT WAS PNEUMONIA.
25 AND IT WOULD CERTAINLY APPEAR TO ME AT LEAST THAT THE
3288
1 INFILTRATE SEEN SIX WEEKS PRIOR ON NOVEMBER 18TH, '95 WAS
2 PNEUMONIA AS WELL. SO MY IMPRESSION WOULD BE THAT THERE WAS
3 PNEUMONIA INFECTION SMOULDERING IN THAT LUNG WHICH
4 ESSENTIALLY WAS UNTREATED FROM AT LEAST NOVEMBER 18TH, '95
5 AND PROBABLY EARLIER UNTIL THE PATIENT DIED.
6 Q. NOW, I NOTICE ON THIS REPORT THERE'S ALSO A FINDING THAT
7 THE AORTA IS VERY TORTUOUS. WHAT DOES THAT MEAN?
8 A. THE AORTA IS TORTUOUS.
9 Q. TORTUOUS, I'M SORRY.
10 A. WHAT THAT MEANS IS THE NORMAL AORTA, THE AORTA BEING THE
11 BIG ARTERY THAT COMES OUT OF THE HEART AND BRANCHES TO
12 SUPPLY BLOOD TO THE ENTIRE BODY, THE NORMAL AORTA IS IT
13 LOOPS UP AND THEN DOWN --
14 MR. MAJOR: YOUR HONOR, I THINK WE'RE GOING TO
15 OBJECT AT THIS POINT IN TIME. I THINK THIS IS BEYOND HIS
16 QUALIFICATIONS. HE'S TALKING ABOUT CARDIAC, HEART ATTACK, I
17 DON'T THINK HE'S QUALIFIED TO TESTIFY TO THAT.
18 THE COURT: WELL, THE QUESTION WAS WHAT DOES THE
19 WORD MEAN.
20 MR. STIRBA: YEAH, MEAN IN THE CONTEXT OF HIS
21 FINDING.
22 THE WITNESS: WHAT IT MEANS IS THAT RATHER THAN
23 GOING UP AND DOWN IN A NORMAL RELATIVELY STRAIGHT FASHION,
24 THE AORTA FORMS A MUCH GREATER CURVE. AND WHAT THAT
25 INDICATES IS THAT THERE'S DISEASE IN THAT AORTA, THERE'S
3289
1 ARTERIOLOSCLEROSIS IN IT. IF THERE WASN'T, IT WOULDN'T BE
2 TORTUOUS.
3 Q. (BY MR. STIRBA) NOW, IF YOU TURN BACK TO THE X-RAY
4 WHICH IS MED-174 REPORT DONE AT THE HOSPITAL A FEW PAGES
5 BACK.
6 A. OKAY. I HAVE IT.
7 Q. UNDER IMPRESSION AFTER IT TALKS ABOUT THE PNEUMONITIS,
8 IT SAYS, HEART APPEARS ENLARGED WITH AORTA TORTUOUS AND
9 CALCIFIED. IS THAT A CONSISTENT FINDING WITH THE PREVIOUS
10 X-RAY?
11 A. IT IS. I DON'T BELIEVE THEY MENTIONED CALCIFICATION IN
12 THE OTHER BUT IT'S EASY TO SEE WHEN IT'S PRESENT. AND WHAT
13 HAPPENS IS WHEN THERE'S DISEASE IN THE ARTERY, CALCIUM FORMS
14 IN THE LINING WHICH YOU CAN SEE ON X-RAY. ADDITIONALLY, THE
15 HEART IS ENLARGED WHICH MEANS THAT IT'S FAILING TO SOME
16 DEGREE, THERE'S A DEGREE OF PUMP FAILURE GOING ON.
17 Q. NOW, ARE THOSE TWO X-RAY FINDINGS CONSISTENT WITH YOUR
18 OPINION?
19 A. YES.
20 Q. AND HOW SO?
21 A. WELL, MY OPINION WAS THAT MRS. ANDERSON DIED FROM
22 PNEUMONIA SUPERIMPOSED ON OTHER MEDICAL PROBLEMS. ONE OF --
23 PROBABLY THE MOST SIGNIFICANT OF WHICH WAS CARDIOVASCULAR
24 DISEASE. AND THIS IS EVIDENCE, MORE EVIDENCE THAT HER HEART
25 WAS ABNORMAL, NOT ONLY ELECTRICALLY AS SEEN IN THE
3290
1 CARDIOGRAM BUT IN TERMS OF PUMP FUNCTION AS EVIDENCED BY THE
2 ENLARGEMENT. AND ADDITIONALLY, SHE HAD BLOOD VESSEL
3 DISEASE, HER AORTA WAS DISEASED AND CALCIFIED. AND SO
4 WE'VE -- YOU'VE GOT SIGNIFICANT COMPROMISE OF THE HEART AND
5 LUNGS AND THAT'S BAD.
6 Q. IF YOU'LL TURN A FEW PAGES PAST THE DR. KELLER NOTE THAT
7 WE -- WHICH IS WILD-2.
8 A. OKAY.
9 Q. AND AFTER THAT THERE'S SOME TYPEWRITTEN NOTES, IT SAYS
10 WILD-4 AT THE BOTTOM.
11 A. YES.
12 Q. AND IF YOU LOOK AT 11/15/95 THERE IS "A". WHAT DOES
13 THAT "A" STAND FOR? IT SAYS O AND THERE'S --
14 A. YEAH. "A" STANDS FOR ASSESSMENT, I THINK.
15 Q. WHAT DOES THAT MEAN?
16 A. THAT MEANS WHAT YOUR OPINION IS, HOW YOU PUT IT
17 ALTOGETHER BASED UPON THE FINDINGS.
18 Q. AND IT STATES THERE PATIENT WITH DEPENDANT EDEMA/MILD
19 CONGESTIVE HEART FAILURE/COUGH. DOES THAT FINDING BY
20 DOCTOR -- IT'S NOT CLEAR WHETHER THAT WAS -- WELL, YEAH --
21 A. DR. WILDING.
22 Q. -- D.W., THERE'S THE INITIALS THERE BY DR. WILDING --
23 SIGNIFICANT TO YOU FOR PURPOSES OF YOUR OPINION?
24 A. IT IS.
25 Q. AND HOW SO?
3291
1 A. IT'S FURTHER EVIDENCE CLINICALLY THAT THIS PATIENT IS
2 SUFFERING FROM HEART FAILURE. WHEN THE PUMP FAILS AND
3 STARTS TO BACK UP, FLUID ACCUMULATES IN THE LUNG AS I
4 DESCRIBED THAT WE CALL PULMONARY EDEMA, BUT IT ALSO
5 ACCUMULATES IN THE TISSUES BECAUSE OF FAILURE OF THE RIGHT
6 VENTRICLE AS WELL, BACKING UP FROM THE RIGHT VENTRICLE. AND
7 WHAT IS SEEN THERE WHEN THE -- WHEN THINGS BACK UP THROUGH
8 THE VENOUS SYSTEM, THE VEINS, IS DEPENDENT EDEMA.
9 DEPENDENT MEANS WHATEVER PORTION IS DOWN SUBJECT TO
10 GRAVITY. TYPICALLY IN AMBULATORY PEOPLE THAT'S GOING TO BE
11 THE FEET AND ANKLES. IN SOMEBODY WHO IS BEDRIDDEN, THAT MAY
12 BE IN THEIR BACK AS THEY ARE LYING DOWN. BUT THIS PATIENT
13 HAD DEPENDENT EDEMA WHICH MEANS THAT THERE'S FAILURE OF THE
14 RIGHT SIDE OF THE HEART.
15 ADDITIONALLY, SHE HAS COUGH WHICH WOULD BE CONSISTENT
16 WITH PULMONARY EDEMA OR CONSISTENT WITH PNEUMONIA FOR THAT
17 MATTER. SHE STARTED ON -- AND THE DOCTOR GOES AHEAD AND
18 TREATS HER FOR CONGESTIVE HEART FAILURE, FOR PUMP FAILURE.
19 Q. WHY DO YOU SAY THAT?
20 A. WELL, BECAUSE HE STARTS HER ON LASIX WHICH IS A POTENT
21 DIURETIC, PROBABLY THE MOST COMMON DRUG USED TO TREAT HEART
22 FAILURE. SO HE'S STARTING HER ON LASIX TO TRY TO GET RID OF
23 SOME OF THIS FLUID THAT'S ACCUMULATING. HE'S ALSO GIVING
24 HER POTASSIUM BECAUSE LASIX LIKE MANY OTHER DRUGS IS NOT
25 WITHOUT RISK. ONE OF THE RISKS IS POTASSIUM DEPLETION WHICH
3292
1 THEN CAUSES CARDIAC IRRITABILITY WHICH CAUSES RHYTHM
2 DISTURBANCES WHICH CAN CAUSE DEATH AND IT'S NECESSARY TO
3 REPLACE THE POTASSIUM WHICH IS GOING TO BE DEPLETED BY THE
4 LASIX AND THIS IS PRETTY STANDARD TREATMENT OF CONGESTIVE
5 HEART FAILURE. THIS IS WHAT I WOULD DO IN THE E.R. OR
6 ANYBODY ELSE WOULD DO FOR THIS CONDITION.
7 Q. IS CHEST PAIN A SYMPTOM OF CONGESTIVE HEART FAILURE OR
8 CORONARY ARTERY DISEASE?
9 A. YES.
10 Q. AND JUST BRIEFLY, WHY DOES ONE EXPERIENCE CHEST PAIN IF
11 ONE HAS CONGESTIVE HEART FAILURE?
12 A. THERE'S A NUMBER OF REASONS. WHEN SOMEONE HAS
13 CONGESTIVE HEART FAILURE, THE HEART DOES NOT DELIVER NORMAL
14 AMOUNT -- BECAUSE OF THE PUMP FAILURE, THE HEART DOESN'T
15 DELIVER NORMAL AMOUNTS OF BLOOD AND OXYGEN TO THE VARIOUS
16 ORGANS IN THE BODY, ONE OF WHICH IS THE HEART ITSELF. THE
17 HEART SUPPLIES ITSELF WITH BLOOD AND OXYGEN. IF THERE'S
18 PUMP FAILURE, CARDIAC FAILURE, THEN THE HEART ITSELF WON'T
19 GET ENOUGH BLOOD AND THAT WILL CAUSE CHEST PAIN, IT'S CALLED
20 ANGINA. ADDITIONALLY, WHEN THERE'S CONGESTIVE HEART FAILURE
21 THERE'S DILATATION, ENLARGEMENT OF THE HEART AND THE BLOOD
22 VESSELS AND THAT ITSELF CAN CAUSE PAIN. SO CHEST PAIN IS A
23 COMMON FINDING.
24 Q. IF YOU'LL TURN A COUPLE OF PAGES THEN TO A DOCUMENT.
25 IT'S PHYSICIAN ORDERS.
3293
1 A. I SEE IT.
2 Q. AND YOU'LL SEE DOWN UNDER 11/18/95 IT APPEARS THERE WAS
3 AN ORDER FOR NITROSTAT TO BE REPEATED EVERY FIVE MINUTES,
4 TWO TO THREE -- MAYBE IT'S TWO, I CAN'T READ IT -- TO THREE
5 TIMES FOR CHEST PAIN. DO YOU KNOW WHAT NITROSTAT IS?
6 A. I DO.
7 Q. AND WHAT IS NITROSTAT?
8 A. NITROSTAT IS ONE OF THE NITROGLYCERIN PREPARATIONS AND
9 IT'S SPECIFICALLY USED TO TREAT CHEST PAIN THAT'S DUE TO
10 CORONARY INSUFFICIENCY, TO NOT GETTING ENOUGH BLOOD TO THE
11 HEART ITSELF. SO IT WOULD APPEAR THAT THE PHYSICIAN WHO
12 ORDERED THE NITROSTAT BELIEVED THAT THE PATIENT'S CHEST PAIN
13 WAS FROM INADEQUATE BLOOD SUPPLY BACK TO THE HEART ITSELF
14 AND HE'S TREATING HER FOR THAT, FOR CARDIAC CHEST PAIN.
15 Q. IF YOU COULD NOW PLEASE, DOCTOR, TURN TO THE NEXT
16 SECTION OF THE BINDER WHICH IS PATIENT MARY CRANE. DO YOU
17 HAVE THAT IN FRONT OF YOU?
18 A. I DO.
19 Q. COULD YOU TELL US PLEASE, DOCTOR, IF YOU HAVE AN OPINION
20 AS TO THE CAUSE OF DEATH OF MARY CRANE?
21 A. I DO.
22 Q. AND WHAT IS YOUR OPINION?
23 A. I BELIEVE THAT MRS. CRANE DIED OF INFECTION WHICH LED TO
24 A CONDITION THAT WE CALL SEPSIS WHICH WAS -- FOR WHICH SHE
25 WAS PREDISPOSED BASED UPON NUMEROUS MEDICAL CONDITIONS AND
3294
1 WHICH SUPERIMPOSED ON THOSE MEDICAL CONDITIONS LED TO HER
2 DEMISE.
3 Q. DO YOU HAVE AN OPINION AS TO WHETHER MORPHINE CAUSED OR
4 CONTRIBUTED TO HER DEATH?
5 A. I DO.
6 Q. AND WHAT IS YOUR OPINION?
7 A. MY OPINION IS THAT MORPHINE NEITHER CAUSED NOR
8 CONTRIBUTED TO HER DEATH.
9 Q. TELL US WHY YOU SAY THAT.
10 A. THIS LADY WAS VERY, VERY ILL IN THE HOSPITAL. HER
11 CONDITION WAS SUCH THAT WHEN SHE BECAME SEPTIC HER DEMISE
12 WAS IMMINENT AND SHE WAS PERHAPS THE MOST ACUTELY ILL OF THE
13 PATIENTS THAT ARE BEING CONSIDERED HERE. SEPSIS IS A LETHAL
14 CONDITION AND UNLESS SHE WERE TREATED EXTREMELY VIGOROUSLY
15 AND AGGRESSIVELY, SHE WOULD HAVE NO CHANCE OF SURVIVING EVEN
16 WITH AGGRESSIVE TREATMENT. IN MY OPINION, THE ODDS OF HER
17 SURVIVING THIS EPISODE WERE VERY POOR.
18 Q. NOW, THE FIRST PAGE OF THIS SECTION IT'S A REPORT OF
19 CONSULTATION AT THE BOTTOM 236 AND THERE ARE SOME
20 IMPRESSIONS IDENTIFIED THERE. I WANT TO DIRECT YOUR
21 ATTENTION TO NUMBER SEVEN WHICH SAYS, HISTORY, RIGHT
22 CEREBRAL VASCULAR ACCIDENT, RIGHT THALAMIC REGION, 11/90
23 WITH RESIDUAL LEFT HEMIPARALYSIS. GENERALLY, WHAT IS THAT
24 FINDING AND DID THAT FINDING HAVE ANY SIGNIFICANCE TO YOU
25 FOR PURPOSES OF YOUR EVALUATION OF THIS PATIENT?
3295
1 A. THE FINDING INDICATED THAT IN NOVEMBER OF '90 THIS
2 PATIENT HAD SUFFERED A STROKE, CEREBRAL VASCULAR ACCIDENT IS
3 DOCTORESE FOR STROKE ON THE RIGHT SIDE. IT ALSO INVOLVED
4 THE RIGHT THALAMIC REGION WHICH IS A CRITICAL PART OF THE
5 BRAIN AND IT LEFT THIS PATIENT WITH PARALYSIS ON THE LEFT
6 SIDE OF HER BODY THEREAFTER. THE RIGHT SIDE OF THE BRAIN
7 CONTROLS MOTOR FUNCTION ON THE LEFT SIDE OF THE BODY THAT'S
8 WHY SHE'S GOT THE PARALYSIS ON THE LEFT. AND SO SHE HAD --
9 SHE HAD A DEGREE OF WEAKNESS OF PARALYSIS ON THE LEFT.
10 OF IMPORTANCE IS THE FACT THAT THE BRAIN FOLLOWING THIS
11 STROKE HAS BEEN IRREPARABLY DAMAGED, IT'S NO LONGER -- IT'S
12 NO LONGER NORMAL. SECONDLY, IT INDICATES THAT SHE'S AT
13 GREAT RISK FOR SUBSEQUENT SIMILAR EVENTS. SOMETHING WRONG
14 WITH HER CIRCULATORY SYSTEM WAS SEVERE ENOUGH TO CAUSE HER
15 TO STROKE FIVE YEARS PRIOR TO THIS HOSPITALIZATION AND IS A
16 SIGNIFICANT DEBILITATING FACTOR.
17 Q. I WANT TO ALSO DIRECT YOUR ATTENTION TO 12 UNDER
18 IMPRESSION AND IT STATES, CARDIAC SILHOUETTE ENLARGEMENT BY
19 PORTABLE A.P. CHEST X-RAY, POSSIBLY SECONDARY TO
20 HYPERTENSIVE CARDIOVASCULAR DISEASE UNKNOWN LEFT VENTRICULAR
21 FUNCTION, WHAT DOES THAT MEAN?
22 A. IT MEANS THAT SHE'S GOT AN ENLARGED HEART ON THE
23 PORTABLE CHEST X-RAY. A PORTABLE CHEST X-RAY IS PERFORMED
24 USING A DIFFERENT TECHNIQUE THAN THE -- THAN THE CHEST X-RAY
25 IN THE DEPARTMENT. AND THE DIFFERENCE IS THAT IN THE
3296
1 PORTABLE TECHNIQUE, THE X-RAY TUBE IS PLACED IN FRONT OF THE
2 BODY AND THE FILM BLADE IS PLACED IN THE BACK. WHEN YOU DO
3 IT IN THE DEPARTMENT IT'S VICE-VERSA AND ON THE PORTABLE
4 THERE IS SOME -- BECAUSE OF THAT POSITIONAL DIFFERENCE, YOU
5 CAN GET SOME APPARENT ENLARGEMENT OF THE HEART. THAT'S WHAT
6 YOU'VE GOT HERE.
7 WE ACTUALLY TALKED ABOUT ENLARGED HEART ON CHEST X-RAY
8 WITH MRS. ANDERSON. BUT WHAT'S GOING ON HERE IS SHE'S GOT A
9 BIG HEART ON THE CHEST X-RAY AND HE'S CONCERNED THAT THAT
10 BIG HEART IS SECONDARY TO HYPERTENSIVE CARDIOVASCULAR
11 DISEASE. WHAT THAT MEANS IS HEART DISEASE FROM CHRONIC HIGH
12 BLOOD PRESSURE.
13 Q. IS THAT FINDING IMPORTANT OR SIGNIFICANT TO YOU FOR
14 PURPOSES OF YOUR OPINION CONCERNING HER CAUSE OF DEATH?
15 A. YES.
16 Q. AND TELL US, PLEASE, WHY THAT IS.
17 A. WELL, IF YOU'VE GOT A PATIENT WITH THE ACUTE PROBLEMS
18 THAT MRS. CRANE DEVELOPED, INFECTION AND SEPSIS, IF ONE HAS
19 A NORMAL HEART, THEY WILL HANG ON LONGER OR HAVE A BETTER
20 CHANCE OF SURVIVING THAT ACUTE SEPSIS OR INFECTION WITH
21 TREATMENT THAN SOMEONE WITH A DISEASED HEART. SO WHEN YOU
22 SUPERIMPOSE THE ACUTE EVENT ON SOMEBODY WHO ALREADY HAS A
23 BAD HEART, IT MAKES IT THAT MUCH MORE LIKELY THAT THEY ARE
24 GOING TO SUCCUMB TO THE ACUTE INFECTION AND SEPSIS.
25 Q. IF YOU WOULD TURN TO THE NEXT PAGE WHICH WOULD BE 243,
3297
1 DO YOU HAVE THAT IN FRONT OF YOU?
2 A. I DO.
3 Q. AND I'LL DIRECT YOUR ATTENTION TO THE NOTE DOWN THAT'S
4 AT 1/1 OF '96, APPARENTLY NOTED BY -- WRITTEN, RATHER, BY
5 LYNN LONG A NURSE. WHAT SIGNIFICANCE DID THAT NOTE HAVE TO
6 YOU IN TERMS OF YOUR OPINION?
7 A. THIS LADY TURNED OUT TO HAVE A RECTAL VAGINAL FISTULA.
8 THIS NOTE APPEARS TO BE ONE OF THE EARLIER, MAYBE THE
9 EARLIEST REFERENCE IN THE RECORD TO THE EXISTENCE OF THAT
10 MOST UNPLEASANT CONDITION. AND WHAT WAS HAPPENING IS THAT
11 THEY NOTICED THAT THERE WERE FECES IN THE VAGINA WHERE THEY
12 ARE NOT SUPPOSED TO BE AND THE ONLY WAY THEY COULD HAVE
13 GOTTEN THERE WAS IF THERE WAS A FISTULA, A COMMUNICATION, AN
14 OPENING BETWEEN THE VAGINA AND THE RECTUM, AND THAT'S
15 OBVIOUSLY OF GREAT CONCERN. AND QUITE APPROPRIATELY, AN
16 ON-CALL GYNECOLOGIST, A DR. HALL IT WOULD APPEAR, WAS CALLED
17 TO ASK HIS OPINION OR HIS OR HER OPINION ON HOW TO PROCEED
18 AND THAT DOCTOR ADVISED GETTING A CONSULT IN THE MORNING.
19 THIS IS AT 8 O'CLOCK IN THE EVENING SOMEBODY SEES THE
20 FECES, BECOMES APPROPRIATELY ALARMED, CALLS THE DOCTOR AT
21 8 O'CLOCK AT NIGHT, WHAT DO WE DO. THE DOCTOR RESPONDS,
22 WELL, SINCE THE PATIENT'S VITAL SIGNS AT LEAST AT THIS POINT
23 IN TIME APPEAR STABLE, THE VITAL SIGNS, I.E., TEMPERATURE
24 BLOOD PRESSURE AND SO FORTH, IT'S SAFE TO WAIT UNTIL THE
25 NEXT MORNING FOR HER TO BE PHYSICALLY SEEN BY A CONSULTANT.
3298
1 IF SHE WERE UNSTABLE, THEY PROBABLY WOULD HAVE HAD TO COME
2 IN, YOU KNOW, RIGHT AWAY.
3 Q. IF YOU TURN TO THE NEXT PAGE OR ON THE NEXT DAY THERE'S
4 A NOTE 1/2 OF '96 GYNECOLOGICAL CONSULT NOTE, DO YOU SEE
5 THAT?
6 A. I DO.
7 Q. AND THAT IS A REPORT OF THE GYNECOLOGIST WHO SAW PATIENT
8 MARY CRANE AT THAT TIME; IS THAT RIGHT?
9 A. RIGHT.
10 Q. HE SAYS DOWN TOWARDS THE BOTTOM 25 -- PROBABILITY 25 TO
11 35 PERCENT BY TREATING WITH BROAD SPECTRUM -- AND IT LOOKS
12 LIKE A.B.S. FOR ANTIBIOTICS AND LOW-RESIDUE DIET. WHAT
13 SIGNIFICANCE IS IT THAT HE IS SUGGESTING TREATMENT BY A
14 BROAD-SPECTRUM ANTIBIOTIC?
15 A. WELL, INITIALLY HE'S -- HE HAS TO CONSIDER WHETHER
16 IMMEDIATE SURGERY IS REQUIRED AND HE TALKS ABOUT THAT A
17 LITTLE BIT. HE INDICATES THAT IN HIS MIND THERE IS A 25 TO
18 35 PERCENT CHANCE THAT THIS COULD HEAL WITHOUT SURGERY. AND
19 WHAT WOULD BE CRITICAL TO ANY CHANCE OF THAT HEALING WOULD
20 BE GETTING HER ON ANTIBIOTICS FOR TWO PURPOSES; ONE, TO SEE
21 IF THOSE TISSUES WHICH BY DEFINITION ARE INFECTED CAN HEAL.
22 AND, TWO, TO PREVENT THE INFECTION FROM GETTING WORSE.
23 Q. IF YOU TURN TO THE NEXT PAGE 245 TO THE LEFT-HAND SIDE
24 IT LOOKS LIKE A NOTE ON 1/3/96 AND THE ONE IT SAYS,
25 LOW-FIBER, LOW-RESIDUE DIET. I GUESS THAT'S CONSISTENT WITH
3299
1 WHAT THE GYNECOLOGIST SUGGESTED?
2 A. RIGHT.
3 Q. AND THEN, TWO, IT SAYS, PLEASE HAVE DR. DIENHART MADE
4 AWARE OF GYNECOLOGIST RECOMMENDATION, GIVE HIM MY, IT LOOKS
5 LIKE BEEPER NUMBER AND THEN IT'S CROSSED OUT AND IT SAYS
6 PHONE NUMBER, CAN'T READ THAT, SO HE CAN CALL ME IF
7 NECESSARY, THANKS, ROBERT WEITZEL AND THEN THERE'S AN ENTRY
8 OVER THERE ON 1/3/96 AT 1100, DR. DIENHART'S SECRETARY
9 NOTIFIED OF PHONE NUMBER, LYNN LONG, R.N. WHAT DOES THAT
10 TELL YOU?
11 A. WHAT THAT TELLS ME IS THAT --
12 MR. MAJOR: OBJECTION, YOUR HONOR, I THINK THAT
13 CALLS FOR A CONCLUSION ON THE PART OF THIS WITNESS. IT'S
14 BEYOND THE SCOPE OF HIS ABILITY --
15 MR. STIRBA: IT'S PERHAPS INARTFULLY ASKED, YOUR
16 HONOR. I'LL REPHRASE THAT QUESTION.
17 THE COURT: REPHRASE THE QUESTION.
18 MR. STIRBA: YES.
19 Q. (BY MR. STIRBA) DOES THIS HAVE ANY SIGNIFICANCE FOR
20 PURPOSES OF YOUR OPINION THAT MARY CRANE DIED OF SEPSIS?
21 A. IT DOES.
22 Q. AND TELL US PLEASE WHY THAT IS.
23 A. IT INDICATES TO ME THAT DR. WEITZEL IS CONCERNED
24 REGARDING THE ACUTE SITUATION SUCH THAT HE WANTS DR.
25 DIENHART WHO IS THE INTERNIST, THE SPECIALIST IN INFECTIOUS
3300
1 DISEASES, TO BE MADE AWARE OF THE GYNECOLOGIST'S
2 RECOMMENDATION SUCH THAT DR. DIENHART WOULD THEN ORDER
3 APPROPRIATE MEDICATION IN THE FORM OF ANTIBIOTICS. THERE'S
4 AN ISSUE HERE IN TERMS OF CHOICE OF THE CORRECT ANTIBIOTIC
5 AND STANDARD PRACTICE WOULD BE TO GIVE THE CONSULTANT WHO
6 SPECIALIZES IN THAT MORE THAN THE PSYCHIATRIST THE FIRST
7 SHOT AT CHOOSING THE ANTIBIOTIC, AND THAT'S WHAT'S GOING ON
8 HERE.
9 Q. THEN IF YOU WOULD TURN TWO PAGES, ACTUALLY, AT 248
10 THERE'S AN ORDER AT THE TOP 1/5/96, 1330, TELEPHONE ORDER
11 DR. WEITZEL AND IT SAYS, ONE, KEFLEX 250 MILLIGRAMS Q.I.D.
12 P.O. WHAT DOES THAT MEAN?
13 A. KEFLEX IS A COMMONLY USED BROAD-SPECTRUM ANTIBIOTIC,
14 CEPHALEXIN IS THE CHEMICAL NAME. DR. WEITZEL IS ORDERING
15 250 MILLIGRAMS OF IT TO BE GIVEN ORALLY FOUR TIMES A DAY.
16 FOR WHATEVER REASON, THE ANTIBIOTIC HAD NOT PREVIOUSLY BEEN
17 ORDERED AND BY THE 5TH, DR. WEITZEL HAS DECIDED THAT HE WILL
18 INITIATE THE ANTIBIOTIC TREATMENT THAT WAS RECOMMENDED BY
19 THE GYNECOLOGIST SEVERAL DAYS PRIOR AND HE DID SO AND THAT'S
20 A -- THAT'S A TOTALLY REASONABLE CHOICE OF ANTIBIOTIC FOR
21 THIS CONDITION IN MY OPINION.
22 Q. NOW, IF YOU TURN TO THE NEXT PAGE 249, THERE ARE
23 MULTIPLE ENTRIES ON THAT PAGE. BUT DIRECTING YOUR ATTENTION
24 TO THE WRITING ON THE RIGHT-HAND SIDE IT APPEARS THAT WE'RE
25 AT 1/7/96 AT 3:10 IN THE AFTERNOON AND THERE'S A MED
3301
1 CONSULT, DO YOU SEE THAT?
2 A. I DO.
3 Q. AND IT SAYS, ASKED TO SEE BY DR. WEITZEL. IN REVIEWING
4 THAT CONSULT, DID THAT HAVE SIGNIFICANCE CONCERNING YOUR
5 OPINION THAT PATIENT MARY CRANE DIED AS A RESULT OF SEPSIS?
6 A. IT DID.
7 Q. AND TELL US PLEASE WHY YOU SAY THAT.
8 A. OKAY. THE NOTE IS A LITTLE DIFFICULT TO READ BUT HIS
9 WRITING IS MUCH MORE LEGIBLE THAN MINE. BUT IT'S -- AS BEST
10 I CAN INTERPRET IT SAYS, ASKED TO SEE BY DR. WEITZEL,
11 POSSIBLE SEIZURE, TEN SECONDS. DOCUMENTS -- DOCUMENTS OTHER
12 THINGS GOING ON ONE OF THAT IS VERY SIGNIFICANT IS AN
13 ELEVATED WHITE BLOOD COUNT AND ABNORMAL ELECTROLYTES,
14 MARKEDLY SO.
15 Q. WHAT IS THE SIGNIFICANCE OF AN ELEVATED WHITE BLOOD
16 COUNT AT THIS TIME?
17 A. THE WHITE BLOOD COUNT INDICATES -- THE BLOOD COUNT IS
18 ONE OF THE PRIMARY TESTS THAT WE DO TO MAKE A DIAGNOSIS OF
19 INFECTION. AND IN GENERAL, AN ELEVATED WHITE BLOOD COUNT
20 INDICATES INFECTION AND A CHANGE IN -- THERE'S A NUMBER OF
21 DIFFERENT TYPES OF WHITE BLOOD CELLS. A CHANGE FROM THE
22 NORMAL PERCENTAGE OF THOSE WHITE BLOOD CELLS FURTHER
23 INDICATES INFECTION AND, IN FACT, INDICATES BOTH THE ACUITY
24 AND THE SEVERITY OF THE INFECTION.
25 WHAT'S REALLY REMARKABLE TO ME IN THIS PARTICULAR CASE
3302
1 IS THE FACT THAT THESE PATIENTS SUCH AS MRS. CRANE WHO WERE
2 GERIATRIC AND COMPROMISED BY MULTIPLE PROBLEMS THAT WE'VE
3 DISCUSSED, FREQUENTLY HAVE DIFFICULTY ELEVATING THEIR WHITE
4 BLOOD COUNT IN RESPONSE TO INFECTION. THE BODY PRODUCES THE
5 WHITE BLOOD CELLS TO TRY TO KILL THE GERMS AND SOMETIMES THE
6 WHITE BLOOD COUNT WON'T HELP IN ELDERLY PATIENTS, BECAUSE
7 UNLIKE YOUNGER PEOPLE, IT WON'T ELEVATE IN RESPONSE TO
8 INFECTION.
9 THE FACT THAT IN THIS CASE THE WHITE BLOOD COUNT WENT
10 UP TO 15,000 SOMETHING, AND EVEN MORE SIGNIFICANTLY, THAT
11 THE PERCENTAGE OF WHAT WE CALL THE P.M.N.'S, THE
12 POLYMORPHONUCLEAR CELLS WHICH ARE THE REAL AGGRESSIVE
13 INFECTION FIGHTING ONES ARE GREATER THAN 92 PERCENT --
14 SOMETHING LIKE 92 PERCENT -- WOULD INDICATE TO ME THAT
15 THERE'S A VERY SERIOUS INFECTION HERE AND PROBABLY A
16 CONDITION WE CALL SEPSIS.
17 Q. NOW YOU ARE REFERRING TO A LAB, ARE YOU NOT, WITH THOSE
18 FINDINGS?
19 A. I AM, YES.
20 Q. MAYBE IF WE CAN TURN, PLEASE, TO THE LAB YOU ARE
21 REFERRING TO WHICH IS A FEW PAGES BEYOND DR. DIENHART'S NOTE
22 IT'S 261, MED-261.
23 A. OKAY.
24 Q. AND WHAT IS THAT A STUDY OF?
25 A. YOU HAVE A GOT ACTUALLY TWO LAB REPORTS, 261 AND 264.
3303
1 Q. WHY DON'T WE DEAL WITH 264 FIRST.
2 A. OKAY.
3 Q. BECAUSE THAT'S THE ONE THAT I THINK IS RELEVANT TO YOUR
4 WHITE BLOOD CELL COUNT TESTIMONY.
5 A. RIGHT.
6 Q. JUST WALK US THROUGH THAT IF YOU WILL, PLEASE.
7 A. I WILL. IF YOU LOOK AT THE COLUMN ON THE RIGHT WHERE IT
8 SAYS NORMAL RANGE UNITS, ONE WILL SEE THAT THE NORMAL RANGE
9 FOR WHITE BLOOD CELL COUNT IS 4.8, THAT'S 4800 TO 10,800.
10 AND, IN FACT, IF YOU LOOK AT THE TWO PREVIOUS BLOOD COUNTS
11 THAT WERE DONE ON MRS. CRANE ON THE 28TH OF DECEMBER AND THE
12 1ST OF JANUARY, BOTH OF THOSE WERE IN FACT WITHIN THE NORMAL
13 RANGE, 8800 AND 9400.
14 LOOKING FAR LEFT, WHICH WOULD BE THE MOST RESENT RESULT
15 YOU SEE A 15.0, THAT MEANS THAT THE WHITE BLOOD COUNT WAS
16 15,000. THERE IS A CAPITAL H NEXT TO IT WHICH IS A LITTLE
17 THING THAT THE COMPUTER GENERATES TO KIND OF CLUE THE
18 PHYSICIAN IN CASE HE MISSED IT OR SOMETHING THAT THAT'S HIGH
19 AND, IN FACT, IN THIS CONTEXT IN THIS PATIENT TO ME THAT'S
20 ALARMINGLY SO.
21 Q. AND INDICATIVE OF WHAT?
22 A. SEVERE INFECTION.
23 Q. AND THEN IF YOU'LL GO DOWN THAT COLUMN WE GET TO A
24 COLUMN IT LOOKS LIKE, IT SAYS, SEGS AND THEN A PERCENTAGE.
25 A. RIGHT.
3304
1 Q. WOULD YOU WOULD YOU WALK US THROUGH WHAT THE
2 SIGNIFICANCE OF THAT FINDING IS IN THAT TEST REPORT DATED
3 JANUARY 5, '96?
4 A. YES. SEGS ARE THE TYPES OF CELLS THAT I REFERRED TO AS
5 P.M.N.'S, IT MEANS THE SAME THING AND THEY ARE JUST
6 INTERCHANGEABLE NAMES. OF THE WHITE BLOOD CELLS THERE'S
7 SEGS, THERE'S LYMPHOCYTES THERE'S MONOCYTES AND THERE'S
8 EOSINOPHILS. AND IF YOU LOOK OVER ON THE RIGHT, YOU'LL SEE
9 THE NORMAL PERCENTAGES OF THOSE TYPES OF CELLS AMONG, YOU
10 KNOW, THE 100 PERCENT OF WHITE BLOOD CELLS AND THE SEGS ARE
11 INVARIABLY THE MOST COMMON. NORMAL RANGE IS 36 TO
12 66 PERCENT AND ON DOWN.
13 NOW, YOU CAN SEE, IN FACT, THAT -- THIS IS KIND OF
14 INTERESTING, THAT ON ADMISSION HER PERCENTAGE OF SEGS WAS
15 WITHIN THE NORMAL RANGE, 59 PERCENT. ON THE 1ST, EVEN
16 THOUGH THE TOTAL WHITE BLOOD COUNT WAS WITHIN THE NORMAL
17 RANGE, 8800, THE SEGS WERE ELEVATED. THIS IS ACTUALLY THE
18 FIRST SUBTLE CLUE THAT AN INFECTIOUS PROCESS IS
19 ACCELERATING.
20 Q. AND THAT'S THE DAY WHEN IT'S FIRST DOCUMENTED OF THE
21 FISTULA; IS THAT RIGHT?
22 A. CORRECT, THAT'S RIGHT. SO IT'S COINCIDENT WITH THAT.
23 AND SO WHAT THAT MEANS IS THAT THE INFECTION IS JUST GETTING
24 ROLLING AND THE FIRST SIGN AND THIS IS QUITE COMMON IS THAT
25 THE TOTAL WHITE BLOOD COUNT IS NORMAL BUT THE PERCENTAGE OF
3305
1 SEGS IS ELEVATED.
2 BY THE 5TH, THE PERCENTAGE IS 91.2 PERCENT AND I DON'T
3 THINK I'VE EVER SEEN IN THE HUNDREDS OF THOUSANDS OF WHITE
4 COUNTS I'VE SEEN ONE ABOVE ABOUT 93 OR 4 PERCENT. AND WHAT
5 THAT MEANS IS THAT THERE'S SEVERE INFECTION PRESENT AND
6 LIKELY SEPSIS WHICH MEANS THAT THE INFECTION HAS BECOME
7 BLOOD BORN AND IS TAKING OVER THE BODY. AND WHEN YOU LOOK
8 AT A WHITE COUNT LIKE THIS WHAT IT MEANS IS YOU'VE GOT
9 SOMEBODY WHO IS IN EXTREME DANGER OF DYING VERY, VERY SOON.
10 Q. NOW IF YOU --
11 THE COURT: OKAY. YOU ARE GOING TO BE A LITTLE
12 LONGER.
13 MR. STIRBA: YES, I AM, JUDGE, CERTAINLY.
14 THE COURT: LADIES AND GENTLEMEN, IT'S NOON SO
15 LET'S TAKE OUR LUNCH BREAK NOW TO 1:30. AND DURING THAT
16 TIME REMEMBER IT'S YOUR DUTY NOT TO CONVERSE AMONG
17 YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE
18 ADDRESSED BY ANYONE ON THE SUBJECT OF THIS TRIAL AND IT'S
19 YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE
20 IS FINALLY SUBMITTED TO YOU AFTER YOU'VE HEARD ALL THE
21 EVIDENCE. ALSO REMEMBER NOT TO LISTEN TO ANY RADIO,
22 TELEVISION, NEWS REPORTS OR NEWSPAPER MAGAZINE REPORTS ABOUT
23 THE TRIAL. SO WE'LL SEE YOU BACK HERE AT 1:30 AND JUST
24 LEAVE ALL THESE BINDERS AND THINGS ON THE CHAIRS.
25 (WHEREUPON THE JURY WAS EXCUSED.)
3306
1 THE COURT: YOU MAY BE SEATED AND THE RECORD WILL
2 REFLECT THAT THE JURY HAS LEFT. YOU CAN TAKE YOUR SEAT DOWN
3 THERE YOU DON'T NEED TO SIT THERE IF YOU WANT.
4 THE WITNESS: THANK YOU, YOUR HONOR.
5 THE COURT: OKAY. WE INDICATED OR I INDICATED
6 EARLIER THAT THERE WAS A MOTION THAT WAS FILED, A MOTION FOR
7 SANCTIONS BASED ON PLAINTIFF'S VIOLATIONS OF COURT ORDERS
8 AND UNPROFESSIONAL CONDUCT. DO YOU WISH TO ADDRESS THAT AT
9 THIS POINT?
10 MS. BARLOW: YOUR HONOR, COULD WE DO THAT AFTER
11 LUNCH? I'VE BEEN -- IT'S ADDRESSED TOWARDS ME AND I'VE BEEN
12 INVOLVED IN THE PRESENTATION OF EVIDENCE THIS MORNING AND I
13 WOULD APPRECIATE A CHANCE TO LOOK AT IT.
14 THE COURT: OKAY.
15 MR. STIRBA: IN FACT, JUDGE, IT'S NOT -- IT'S
16 SOMETHING THAT WE CAN ADDRESS WHEN IT'S CONVENIENT FOR
17 COUNSEL AND THE COURT SO WHENEVER THAT IS AND IF IT'S NOT --
18 THE COURT: WHAT TIME DO YOU WANT TO DO IT?
19 MS. BARLOW: I WOULD IMAGINE 15 MINUTES WOULD BE
20 LONG ENOUGH TO COVER IT IF YOU WANT TO DO IT AT 1:15.
21 THE COURT: WILL THAT GIVE YOU ENOUGH TIME?
22 MR. STIRBA: I -- QUITE FRANKLY, JUDGE, IS THIS
23 SOMETHING MAYBE WE COULD DEAL WITH MAYBE RIGHT AT THE END OF
24 THE DAY OR RIGHT FIRST THING IN THE MORNING BECAUSE --
25 THE COURT: OKAY. WOULD YOU CARE?
3307
1 MS. BARLOW: WELL, IT'S HIS MOTION AND I WOULD
2 REALLY LIKE TO GET IT ADDRESSED.
3 MR. STIRBA: WELL, FINE, 1:15.
4 THE COURT: OKAY. LET'S GO 1:15 AND BE BACK HERE
5 AT THAT TIME.
6 (WHEREUPON A LUNCH RECESS WAS TAKEN.)
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
3308
1 (WHEREUPON THE AFTERNOON SESSION BEGINS.)
2 THE COURT: OKAY. WE'RE BACK ON THE RECORD OUTSIDE
3 THE PRESENCE OF THE JURY. IT LOOKS LIKE OUTSIDE THE
4 PRESENCE OF ALL THE PUBLIC. NOBODY IS HERE.
5 THERE HAS BEEN A MOTION FILED THAT'S ENTITLED A MOTION
6 FOR SANCTIONS BASED ON PLAINTIFF'S VIOLATIONS OF COURT
7 ORDERS AND UNPROFESSIONAL CONDUCT. SO, MR. STIRBA, THAT'S
8 YOUR MOTION?
9 MR. STIRBA: YES, YOUR HONOR. THANK YOU. I DIDN'T
10 FILE THIS LIGHTLY. I'LL TELL YOU WHY I DID FILE IT. IT
11 SEEMS LIKES THERE'S A REPEATED PATTERN IN THIS CASE OF
12 EITHER ASKING QUESTIONS DIRECTLY CONTRARY TO WHAT THE COURT
13 HAS ALREADY RULED; ASKING QUESTIONS WHOSE ONLY PURPOSE IS TO
14 POTENTIALLY INJECT SOME PREJUDICIAL AND EXTRANEOUS
15 INFORMATION IN FRONT OF THE JURY; OR TO SOMEHOW SOUR, FOR
16 THE PRESS'S, I GUESS, GOOD, THE PUBLICITY IN THIS CASE
17 AGAINST THE DEFENDANT. YOU KNOW, I'M WILLING TO PUT UP WITH
18 IT FOR SO LONG THEN I FEEL I HAVE TO DO SOMETHING.
19 I'M FULLY AWARE, PROBABLY AS AWARE AS ANYBODY, THAT
20 THESE PROCESSES AND TRIALS ARE DIFFICULT. THAT OBVIOUSLY
21 PEOPLE DO AND SAY THINGS SOMETIMES COMPLETELY INADVERTENTLY,
22 JUST THROUGH THEIR OWN EMOTIONAL WEARINESS OR EXCITEMENT OR
23 WHAT HAVE YOU. THAT'S NOT WHAT I'M TALKING ABOUT.
24 I AM CONCERNED, FOR EXAMPLE, THAT WHAT PRECIPITATED
25 THIS WAS A QUESTION YESTERDAY ABOUT MORPHINE. I REALLY
3309
1 DON'T THINK THERE'S BEEN ANY QUESTION ABOUT WHAT IS ON OR
2 OFF LIMITS WITH RESPECT TO MORPHINE IN THIS CASE. COUNSEL
3 ASKED TWO QUESTIONS. ONE I LET GO, ABOUT WAS THERE ANY
4 MORPHINE BEFORE. PROBABLY BECAUSE I WAS ASLEEP. THE OTHER
5 TIME I JUST THOUGHT, WELL, NO, I'M NOT GOING TO LET THAT ONE
6 GO. IT'S CLEAR THAT THAT'S NOT EVEN PART OF THE CASE. THE
7 ONLY PURPOSE TO ASK THE QUESTION, THE ONLY PURPOSE I COULD
8 SEE, WAS TO SOMEHOW INJECT SOMETHING BEFORE THIS JURY.
9 I DON'T WANT A MISTRIAL. WE'RE AT THE POINT WHERE
10 WE'VE GONE THROUGH THIS FOR HOW MANY WEEKS, HOW MANY
11 WITNESSES, HOW MUCH HAS BEEN GOING ON. WE'RE GETTING TO
12 THAT CUSP WHERE WE'LL HAVE A DIFFICULT TIME. THAT WAS A
13 MISTRIAL QUESTION YESTERDAY, AS FAR AS I WAS CONCERNED.
14 THIS IS ON TOP OF THE OTHER THINGS WE INDICATED IN THE
15 ORDER. I THINK IT WAS ABSOLUTELY, COMPLETELY, BEYOND THE
16 PALE OF ANY RATIONAL REASON THAT I COULD EVER SEE FOR A
17 LAWYER TO STAND UP, WHEN THE PRESS IS ALL OVER THIS THING,
18 IN OPEN COURT, WITHOUT ANY ADVANCE WARNING, AND SAY WE WANT
19 TO MAKE A PROFFER. AND THEN PROFFER WHAT WAS ESSENTIALLY --
20 WHAT WAS PROFFERED TO YOUR HONOR, WHICH EVENTUALLY ENDED UP
21 AS THE HEADLINE, APPARENTLY, IN ONE OF THE PAPERS, WHEN
22 THERE WASN'T EVEN THE REMOTEST CHANCE THAT, UNDER ANY
23 CIRCUMSTANCE, THAT WOULD EVER BE ADMISSIBLE IN THIS
24 PROCEEDING.
25 SO, THAT'S MY CONCERN. I COULD GO ON AND ON. I'LL
3310
1 TELL YOU WHAT I AM CONCERNED ABOUT NOW. WE'RE GETTING TO
2 THE END. I THINK EVERYBODY KNOWS THE RULES OF THE GAME.
3 THE COURT HAS BEEN ABSOLUTELY CLEAR ABOUT WHAT THIS CASE IS
4 ABOUT AND THE LIMITATIONS OR THE BOX IN WHICH WE'LL LITIGATE
5 THIS CASE. I'M VERY CONCERNED THAT THERE IS GOING TO BE
6 REPEAT EPISODES OF WHAT I CONSIDER ARE QUESTIONS WHICH HAVE
7 NO OTHER PURPOSE THAN TO INFLAME AND WE'RE GOING TO BE IN A
8 SITUATION WHERE WE'LL BE LOOKING AT A MISTRIAL. THAT
9 CONCERNS ME GREATLY, GIVEN ALL THE EFFORT THAT HAS BEEN PUT
10 INTO THIS CASE BY THE COURT AND EVERYBODY ELSE.
11 I JUST REALLY DON'T KNOW HOW I COULD ADDRESS THIS
12 WITHOUT AT LEAST BRINGING THIS TO THE COURT'S ATTENTION IN
13 THE FASHION THAT I HAVE. I WILL TELL YOU, IT IS NOT
14 REALLY -- I MEAN, IF SOMEBODY COULD SOMEHOW ASSURE ME THAT
15 AT LEAST FROM NOW UNTIL THE END OF THIS TRIAL WE'RE GOING TO
16 AT LEAST LITIGATE WITHIN THE PARAMETERS THAT THE COURT HAS
17 RULED, THAT WOULD MAKE ME, QUITE FRANKLY, A VERY HAPPY
18 PERSON. I'M NOT INTERESTED NECESSARILY IN DOING THIS,
19 EXCEPT TO MAKE SURE THAT THE PROCESS IS NOT TROUBLESOME DOWN
20 THE ROAD.
21 EVERY PROSECUTOR KNOWS THAT YOU ARE TO STRIKE FAIR
22 BLOWS, BUT NOT FOUL ONES. WHEN YOU'RE ASKING QUESTIONS ON
23 CROSS THAT KIND OF COME OUT OF LEFT FIELD AND THAT ARE
24 CLEARLY OUTSIDE THE BOUNDS OF ANY REMOTE CHANCE OF
25 LEGITIMATE EVIDENCE IN THIS CASE, THE FIRST TIME MAYBE
3311
1 THAT'S OKAY. MAYBE THAT'S AN INADVERTENCE OR SOMETHING THAT
2 JUST HAPPENED. IT DOES HAPPEN, I UNDERSTAND THAT. BUT WHEN
3 WE'VE HAD REPEATED EXAMPLES OF IT I JUST GET TO THE POINT I
4 HAVE TO BRING IT TO THE COURT'S ATTENTION AND HOPE THAT WE
5 CAN ADDRESS IT IN SOME RATIONAL MANNER. THAT'S WHY I FILED
6 THE MOTION.
7 THE COURT: ARE YOU ADDRESSING THE DECORUM ORDER
8 VIOLATION?
9 MR. STIRBA: THE DECORUM ORDER VIOLATION IS ANOTHER
10 PROBLEM. I'LL TELL YOU, I JUST HEARD ABOUT IT. I WASN'T
11 HERE. I HAD LEFT. I WAS PRETTY TAKEN ABACK, AFTER WHAT
12 WE'D GONE THROUGH IN THE MORNING, THAT ESSENTIALLY WE'RE
13 HAVING THESE KINDS OF CONFERENCES WITH THE PRESS IN THE
14 COURTROOM.
15 YOU'LL NOTICE THAT THE DEFENSE HASN'T SAID A WORD ABOUT
16 THIS CASE PROBABLY SINCE THE FIRST DAY THAT DR. WEITZEL WAS
17 ARRAIGNED. WHAT I SAID THEN WAS BASICALLY THE TRUTH, THAT
18 THIS WILL BE A TOUGH CASE FOR EVERYBODY. I MENTIONED THE
19 FAMILIES, THE DEFENDANT, THE STATE. THAT'S THE ONLY THING
20 I'VE EVER SAID ABOUT THIS CASE SINCE IT WAS FILED. WE DON'T
21 TALK ABOUT IT AND WE'RE NOT TRYING IT IN THE PRESS. WE'RE
22 NOT LOOKING FOR HEADLINES, WE'RE JUST DOING OUR JOB IN THE
23 COURTROOM.
24 I WAS CONCERNED THAT HERE WE HAVE THESE IN CHAMBERS
25 DISCUSSIONS, ONE OF WHICH RELATES TO A JUROR. THEN
3312
1 ESSENTIALLY WE'RE HAVING, BEFORE IT'S EVEN HEARD PUBLICLY, I
2 MEAN THERE WASN'T EVEN A HEARING, WE'RE HAVING A PRESS
3 CONFERENCE OR INTERCHANGES WITH THE PRESS DISCLOSING
4 EVERYTHING THAT WASN'T EVEN AT THAT POINT A MATTER OF PUBLIC
5 RECORD.
6 I UNDERSTAND THE DIFFICULTY SOMETIMES IN THE SEDUCTIVE
7 NATURE -- SOMETIMES YOU TALK TO THE PRESS AND PERHAPS IN
8 SECOND THOUGHT YOU SAY MAYBE I SHOULDN'T HAVE. I UNDERSTAND
9 THAT. BUT THE CONCERN I HAVE IS, ONCE AGAIN, THE PURPOSE IS
10 TO WHAT? TO ADVANCE THIS CASE IN THE PRESS OR WHAT? I
11 DON'T UNDERSTAND THE PURPOSE AND IT CONCERNS ME IN TERMS OF
12 WHERE IS THIS CASE BEING TRIED.
13 THE COURT: OKAY. MS. BARLOW.
14 MS. BARLOW: THANK YOU, YOUR HONOR. I'LL ADDRESS
15 THE MOTION AS IT IS WRITTEN. TO BEGIN WITH, I'LL EXPLAIN TO
16 THE COURT -- WELL, FIRST, I THINK THE COURT'S DECORUM ORDER
17 THAT IS CITED BY THE DEFENDANT IS GUIDELINES FOR THE PRESS.
18 ON PAGE FOUR, PARAGRAPH TWO, "NO INTERVIEWS MAY BE CONDUCTED
19 AND NO VIDEO OR STILL PHOTOGRAPHY EQUIPMENT OPERATED IN THE
20 COURTHOUSE ENTRY, FOYERS OR HALLWAYS. ALL INTERVIEWS AND
21 ANY USE OF VIDEO CAMERAS WILL ONLY BE PERMITTED WITHIN THE
22 CONFINES OF THE PRESS ROOM OR OUTSIDE THE COURTHOUSE
23 BUILDING."
24 I'LL START WITH IF, AND I DON'T THINK THERE IS, BUT IF
25 THERE IS ANY VIOLATION THAT VIOLATION WAS BY THE PRESS NOT
3313
1 BY ME. THIS ORDER WAS DIRECTED TO THE PRESS. THERE IS NO
2 VIOLATION. IT WAS NOT AN INTERVIEW. AS THE COURT IS AWARE,
3 THERE WAS AN IN CHAMBERS BUT ON THE RECORD, SO CLEARLY
4 PUBLIC --
5 THE COURT: BEFORE YOU GO THERE, I JUST WANT TO
6 TELL YOU THAT THE THING THAT WAS ON THE RECORD -- I'VE HAD
7 NOTHING IN MY CHAMBERS EXCEPT THE MOTION THAT YOU BROUGHT UP
8 THAT DAY. YOU WOULD NOT TELL MY LAW CLERK WHAT THAT MOTION
9 WAS ABOUT. YOU SAID YOU WANTED TO MEET IN CHAMBERS. I SAID
10 YES. I WOULD HAVE HAD THAT IN THE COURTROOM ON THE RECORD
11 LIKE EVERYTHING ELSE HAS BEEN IN THIS CASE, BUT THE COUNTY
12 ATTORNEY CAME UP HERE AND SAID WE WANT TO MEET IN CHAMBERS.
13 THEY WOULD NOT SAY WHAT IT WAS ABOUT. SO THE PRESS AND
14 EVERYONE ELSE HAD NO IDEA WHAT IT WAS ABOUT. I WOULD HAVE
15 HAD THAT ON THE RECORD IN THE COURTROOM, HAVE EVERYBODY HEAR
16 WHAT YOU WANTED TO SAY, BUT IT WAS DONE BACK THERE. THAT
17 WAS YOUR DOING, IT WASN'T MINE.
18 MS. BARLOW: WHEN YOU SAY YOUR, I ASSUME --
19 THE COURT: YOUR SIDE OF THE CASE. THERE'S THREE
20 OF YOU TRYING THIS CASE. IT'S YOUR SIDE OF THE CASE THAT
21 ASKED FOR THAT. I WOULD HAVE DONE THAT RIGHT IN THE
22 COURTROOM. I DON'T CARE WHAT WAS GOING TO BE SAID, IT COULD
23 HAVE BEEN SAID IN THE COURTROOM BEFORE EVERYBODY.
24 MS. BARLOW: I UNDERSTAND.
25 THE COURT: BUT YOUR SIDE ASKED FOR IT IN MY
3314
1 CHAMBERS. YOU WOULD NOT SAY WHAT IT WAS ABOUT. THEN SAID
2 IT IN THE CHAMBERS. AFTER THAT IT WENT IMMEDIATELY TO JUDGE
3 ALLPHIN AND THEN WHEREVER IT WENT. BUT THE POINT WAS, YES,
4 THAT WAS ON THE RECORD. THE COURT REPORTER WAS THERE. BUT
5 IT SHOULD HAVE BEEN IN THE COURTROOM. OF EVERYTHING ELSE IN
6 THIS TRIAL, THAT WAS THE ONLY THING THAT HASN'T BEEN IN THE
7 COURTROOM IN THIS TRIAL.
8 EVERYTHING ELSE WILL BE IN THIS COURTROOM FROM NOW ON.
9 IF YOU COME UP, YOUR SIDE OR THE OTHER SIDE, AND SAYS WE
10 WANT TO MEET WITH THE JUDGE IN CHAMBERS, IT WILL NOT HAPPEN.
11 MS. BARLOW: OKAY, YOUR HONOR, I ACCEPT THAT. BUT
12 AS THE COURT IS ALSO AWARE, THE COURT'S CLERK CAME OUT, LAW
13 CLERK, CAME OUT AND TOLD THE PRESS WHAT HAD HAPPENED IN
14 CHAMBERS. DURING ONE OF THE BREAKS, I GUESS PROBABLY THE
15 LUNCH BREAK, MEMBERS OF THE PRESS APPROACHED ME AND, YES, IT
16 WAS IN THE COURTROOM. THEY ASKED WHAT HAD HAPPENED IN
17 CHAMBERS. I BASICALLY TOLD THEM WHAT HAD HAPPENED IN
18 CHAMBERS, THAT THERE WAS A MOTION AND THAT THERE WOULD BE A
19 FURTHER HEARING ON IT IN THE AFTERNOON. I DIDN'T KNOW WHAT
20 TIME THAT HEARING WOULD BE.
21 MR. MAY AND MS. KIRKHAM, WHO ARE AFFILIATED WITH MR.
22 STIRBA, WERE PRESENT FOR PART OF THAT DISCUSSION. THEN ONE
23 OF THE MEDIA PEOPLE ASKED ME IF I THOUGHT IT WAS NO BIG
24 DEAL. I SAID I DIDN'T THINK THERE WAS ANYTHING NEFARIOUS,
25 THAT I THOUGHT IT WAS INNOCUOUS. TO MY DISMAY I SAW THAT IN
3315
1 THE MEDIA THE NEXT DAY.
2 I DON'T CONSIDER IT AN INTERVIEW. BUT EVEN IF IT WERE
3 AN INTERVIEW, THE GUIDELINES THERE, AND ALSO IN 4-401, ARE
4 TO THE MEDIA AND TO THE PUBLIC. SO I DON'T THINK ASKING FOR
5 SANCTIONS FOR ME, FOR WHAT I THOUGHT WAS JUST A BACKGROUND
6 ANSWERING OF QUESTIONS, NOT AN INTERVIEW, WOULD BE
7 APPROPRIATE.
8 AS TO THE NEXT REFERENCE, AS INDICATED ON PAGE THREE OF
9 DEFENDANT'S MOTION, THERE WAS A PROFFER MADE OUTSIDE THE
10 PRESENCE OF THE JURY. THE COURT SUPPRESSED THAT EVIDENCE,
11 DID NOT ALLOW IT IN. I DON'T SEE THAT THERE'S ANY PREJUDICE
12 TO THIS TRIAL ON INFORMATION THAT DID NOT GO TO THE JURY.
13 THE COURT: WHAT ABOUT THE DANGER OF WHAT DOESN'T
14 GO TO A JURY BECAUSE THE JURY IS NOT IN HERE AND THEN IT'S
15 REPORTED IN THE PRESS? IT DOESN'T MATTER HOW MANY TIMES I
16 TELL THESE PEOPLE EVERY DAY AT NOON AND AT THE END OF THE
17 DAY, ON THE FOURTH OF JULY WEEKEND, DON'T READ THE PAPERS,
18 DON'T WATCH THE NEWS. IT WILL BE AN EXCEPTIONAL JURY THAT
19 ALL 12 PEOPLE NEVER WILL LOOK OR HEAR.
20 MS. BARLOW: WE HAVE TO ASSUME THAT THE JURY
21 PROCESS IS APPROPRIATE. WE HAVE TO ASSUME THEY WILL FOLLOW
22 THE ORDER.
23 THE COURT: WE HAVE TO ASSUME THAT, BUT WE DON'T
24 HAVE TO ASSUME THAT WHAT HAS BEEN IN THE PAPER DURING THIS
25 TRIAL RECENTLY, AS OF THIS MORNING, WHAT WAS IN THE PAPER IS
3316
1 NOT GOING TO GET TO THE JURY.
2 MS. BARLOW: WELL, THE JURY HAS BEEN INFORMED AT
3 LENGTH THAT THEY'RE NOT TO READ THAT. IF THEY READ IT
4 THEY'RE IN VIOLATION OF THEIR -- I CANNOT ASSUME THAT ALL 12
5 PEOPLE WILL VIOLATE THE COURT'S ORDERS.
6 THE COURT: OKAY. THIS VIOLATION THAT HE'S
7 CLAIMING HERE IS THAT THERE WAS NO REASON ON EARTH THAT YOU
8 SHOULD HAVE THOUGHT THAT THAT SHOULD COME INTO EVIDENCE,
9 BASED ON PRIOR RULINGS ON 404(B) EVIDENCE. AND THAT THIS
10 WASN'T ONE OF THE FIVE PATIENTS THAT WAS INVOLVED.
11 MS. BARLOW: YOUR HONOR, AS WE ARGUED, WE THOUGHT
12 IT DID -- THAT IT WAS RELEVANT. WE ARGUED THAT WE BELIEVED
13 THAT IT WAS APPROPRIATE TO COME IN. I THINK IT WAS AT THIS
14 POINT THAT THE COURT MADE IT VERY CLEAR THAT ANYTHING NOT
15 INVOLVING THOSE FIVE PATIENTS WOULD NOT COME IN. AT LEAST
16 IN MY MIND IT WASN'T THAT CLEAR PRIOR TO THIS TIME.
17 THE COURT: BUT THEN I RULED ON THIS AND THEN THE
18 NEXT THING WAS THAT WE HAD A MOTION TO RECONSIDER THAT VERY
19 RULING AGAIN.
20 MS. BARLOW: RIGHT. HOPING THAT AT THAT POINT
21 PERHAPS THE COURT COULD SEE THAT -- WOULD SEE OUR POINT OF
22 VIEW, THAT WE THOUGHT IT WAS MORE PROBATIVE. THE COURT DID
23 NOT SEE IT THAT WAY. WE HAD HOPED THAT WE WOULD BE ABLE TO
24 CONVINCE THE COURT THAT IT WAS -- IT WAS MORE PROBATIVE THAN
25 PREJUDICIAL, BUT CLEARLY WE DID NOT. THERE'S BEEN NO
3317
1 MENTION OF IT SINCE.
2 AS TO HIS ALLEGATION ON PAGE FOUR, I AGREE THAT I DID
3 MISSPEAK. IT HAPPENS SOMETIMES IN THE MIDDLE OF A TRIAL. I
4 IMMEDIATELY APOLOGIZED AND IMMEDIATELY WENT ON TO OTHER
5 THINGS. I'M SORRY THAT I MISSPOKE. I DIDN'T INTEND TO. AS
6 THE WORDS CAME OUT OF MY MOUTH I THOUGHT I DIDN'T MEAN TO
7 SAY THAT. BUT UNFORTUNATELY, IN THE HEAT OF A TRIAL, IT
8 DOES HAPPEN SOMETIMES. I DID APOLOGIZE. THE MATTER WAS
9 QUICKLY -- THE OBJECTION WAS QUICKLY SUSTAINED AND WE WENT
10 ON. SO I DON'T BELIEVE THAT IT'S GROUNDS FOR A MISTRIAL.
11 THE COURT: I DON'T BELIEVE HE'S SAYING THIS IS
12 GROUNDS FOR MISTRIAL. HE'S SAYING WE'RE GETTING CLOSE TO
13 THE LINE. WE'VE NOW SPENT FOUR WEEKS IN A SIX WEEK TRIAL.
14 WE DON'T WANT TO HAVE ONE IN THE FUTURE.
15 MS. BARLOW: WE DON'T. I KNOW THAT EVEN AS MUCH AS
16 EVERYONE ELSE. IF A MISTRIAL IS CAUSED BY THE STATE, WE
17 CANNOT RETRY THIS CASE. SO, YOU KNOW, WE ARE NOT SEEKING A
18 MISTRIAL. WE ARE NOT TRYING TO FORCE A MISTRIAL. WE'RE
19 JUST TRYING TO PUT OUR EVIDENCE ON. CLEARLY WE HAVE A
20 DIFFERENCE OF OPINION WITH THE DEFENDANT ABOUT WHAT IS
21 PROBATIVE AND WHAT IS UNDULY PREJUDICIAL.
22 THE COURT: DO YOU HAVE ANY QUESTION IN YOUR MIND
23 THAT A QUESTION TO NURSE STEVENSON YESTERDAY, WHETHER
24 MORPHINE WAS ADMINISTERED ON THE UNIT AFTER JANUARY 1996,
25 SHOULD HAVE BEEN ASKED? THAT THAT DIDN'T HAVE TO HAVE THE
3318
1 DEFENDANT GET UP AND OBJECT AND THEN I WOULD HAVE TO RULE?
2 MS. BARLOW: YOUR HONOR, I THINK IT WAS APPROPRIATE
3 OR I WOULDN'T HAVE ASKED IT, NUMBER ONE. I THINK IT'S
4 APPROPRIATE BECAUSE WE HAD TESTIMONY WITH ONE OF OUR NURSE
5 WITNESSES THAT SHE WAS ASKED IF THE DEFENDANT WAS -- I CAN'T
6 REMEMBER HOW THE LANGUAGE WENT. IF THE DEFENDANT WAS
7 DISCIPLINED AFTER SHE REPORTED HER CONCERNS ABOUT THE DEATHS
8 OF THESE PATIENTS. SHE WAS ALSO ASKED IF HE HAD CONTINUED
9 WORKING --
10 THE COURT: WELL, THAT WAS A SITUATION WHERE YOU
11 OPENED THE DOOR. DID YOU TALK TO THE OWNER -- TO THE PERSON
12 IN THE ORGANIZATION, HORIZON, THAT RAN THIS THING OR ANY OF
13 THEIR PEOPLE. SHE SAID YES, I TALKED TO MR. CHAMBERS AND I
14 COMPLAINED ABOUT WHAT DR. WEITZEL WAS DOING. THAT WAS A
15 DOOR OPENED. HE ASKED WAS HE DISCIPLINED. DID HE GET BACK
16 TO YOU, WAS HE DISCIPLINED, DID HE WORK THEREAFTER. YOU
17 OPENED THE DOOR, HE RESPONDED TO THAT.
18 NOW, ASKING ABOUT WHETHER MORPHINE WAS GIVEN, WHAT
19 RELEVANCE IS THERE WHETHER MORPHINE WAS GIVEN AFTER THESE
20 PEOPLE DIED FOR THIS JURY IN THIS MURDER CASE?
21 MS. BARLOW: TO GO TO THAT VERY ISSUE OF WHETHER HE
22 WAS DISCIPLINED. THERE WERE CHANGES ON THE UNIT AFTERWARDS
23 THAT I THINK WERE DIRECTLY RELATED TO THE DEATHS OF THESE
24 PATIENTS. THAT'S WHY I THOUGHT IT WAS RELEVANT AND
25 PROBATIVE AND ASKED THAT QUESTION.
3319
1 FINALLY, ON PAGE FIVE -- WELL, THAT'S PART OF IT TOO.
2 THE COURT HAD RULED PREVIOUSLY WITH SOME OTHER WITNESSES
3 THAT CERTAIN QUESTIONS COULD NOT BE ASKED. FRANKLY, I
4 DIDN'T READ THAT AS A BLANKET ORDER FOR ALL WITNESSES, SO I
5 ASKED THE QUESTION OF THIS WITNESS, WHICH WAS OBJECTED TO
6 AND SUSTAINED. I DON'T THINK THAT'S A BLATANT VIOLATION OF
7 A COURT ORDER BECAUSE I DON'T RECALL THE COURT HAVING ANY
8 BLANKET ORDER TO THAT EFFECT. PERHAPS I MISREAD THE COURT
9 AND THE COURT'S PREVIOUS ORDERS, BUT ORDERS NOT ALLOWING
10 CERTAIN EVIDENCE WITH CERTAIN WITNESSES I DON'T READ AS JUST
11 A BLANKET OBJECTION, OR A BLANKET ORDER THAT THE SAME
12 QUESTIONS CAN'T BE ASKED OF OTHER WITNESSES, UNLESS THE
13 COURT DOES SAY YOU CAN'T ASK THAT.
14 I'VE TRIED VERY HARD NOT TO VIOLATE ANY BLANKET ORDERS
15 SUCH AS THAT. I DO ADMIT THAT I DID MISSPEAK THAT ONE TIME.
16 THAT HOPEFULLY WILL NOT HAPPEN AGAIN.
17 BASED ON THAT, I THINK THIS MOTION FOR SANCTIONS ISN'T
18 APPROPRIATE AND I WOULD ASK THE COURT TO DENY IT.
19 THE COURT: ANYTHING FURTHER, MR. STIRBA?
20 MR. STIRBA: ONE THING. I WAS CONCERNED ABOUT THE
21 FINAL STATEMENTS OF COUNSEL. IF WE'RE GOING TO HAVE THE
22 COURT HAVE TO RULE ON WHAT THINGS ARE EXCLUDED ON EVERY
23 WITNESS, THAT IS REALLY THE PROBLEM. I THINK THE
24 EVIDENTIARY RULINGS HAVE BEEN MADE. IT'S IMPROPER TO KEEP
25 ON ASKING THE QUESTIONS. I'LL SUBMIT IT, YOUR HONOR.
3320
1 THE COURT: WHETHER THE DECORUM ORDER APPLIES TO
2 THE PRESS AND PEOPLE THAT COME TO WATCH THE TRIAL OR WHETHER
3 IT APPLIES TO ATTORNEYS, FAIR NOTICE TO EVERYONE FROM NOW
4 ON, IT APPLIES TO ATTORNEYS AS WELL. ANY VIOLATION OF THE
5 DECORUM ORDER BY ATTORNEYS WILL BE CONTEMPT. JUST AS IT
6 MENTIONS ON PAGE FOUR, "ANY PERSON VIOLATING THESE RULES OR
7 CONDUCT WILL BE SUBJECT TO THE DISCIPLINE OF THE COURT,
8 INCLUDING BUT NOT LIMITED TO THE CONTEMPT AUTHORITY OF THE
9 COURT AND BARRING THE PERSON FROM THE COURTROOM."
10 I WILL TELL THE PRESS RIGHT NOW THAT THEY ARE NOT TO
11 ASK -- IF THEY ASK QUESTIONS TO PEOPLE IN THIS COURTROOM,
12 ASKING QUESTIONS IS A VIOLATION OF THIS. I'M GOING TO
13 INTERPRET THAT AS AN INTERVIEW. IF YOU ASK A QUESTION AND
14 WANT AN ANSWER, THAT'S AN INTERVIEW. SO IF THERE'S ANY
15 INTERVIEWS THAT TAKE PLACE IN THIS COURTROOM OR IN THE
16 FOYERS, YOU KNOW, THEN THE PEOPLE WHO ARE DOING THAT AND THE
17 PEOPLE WHO ARE REPORTING THOSE THINGS, THOSE NEWSPAPERS WILL
18 BE OUT OF THIS TRIAL. OR T.V. STATIONS OR RADIO STATIONS.
19 THERE'S NOT GOING TO BE -- WE'RE NOT GOING TO HAVE
20 INTERVIEWS, QUESTIONS ASKED, IN THIS COURTROOM OR ANYWHERE
21 ELSE IT SAYS IN THE DECORUM ORDER. IF ANYBODY VIOLATES
22 THAT, IF IT'S THE PRESS, YOU WILL BE ASKED TO LEAVE THE
23 COURTROOM AND YOU WON'T BE HERE FOR THE REST OF THE TRIAL.
24 SECONDLY, THE ISSUE OF REVISITING THINGS A HUNDRED
25 TIMES. THIS TRIAL, I AGREE, IS HARD ON EVERYONE. IT'S NO
3321
1 HARDER ON THE JUDGE OR THE JURY OR THE PARTIES OR THE
2 FAMILIES OF THE PARTIES THAN ANYONE ELSE. I AGREE THAT WE
3 HAVE BEEN THROUGH THIS THING FOR FOUR WEEKS AND WE'RE
4 BASICALLY GETTING TO THE POINT WHERE WE OUGHT TO BE GETTING
5 IT DONE AND HAVING THE JURY DECIDE THIS CASE.
6 THE OTHER THING THAT THE DECORUM ORDER STATES, IN THE
7 FIRST PARAGRAPH, IS THAT "THE COURT ANTICIPATES THAT THE
8 TRIAL OF THIS CASE MAY GENERATE SUBSTANTIAL PUBLIC INTEREST
9 AND MEDIA ATTENTION." IT SAYS, "IN LIGHT OF THIS
10 POSSIBILITY," AND WE DON'T HAVE TO WORRY ABOUT THE
11 POSSIBILITY, IT'S A REALITY, "THE COURT HAS SET FORTH
12 SEVERAL RULES OF CONDUCT AND OTHER GUIDELINES DESIGNED TO
13 GOVERN THE EXPECTATIONS OF THE PEOPLE INVOLVED IN THE TRIAL
14 AND THOSE OBSERVING THE TRIAL, SO THAT THE DECORUM OF AN
15 OPEN COURT WILL BE MAINTAINED THROUGHOUT THE PROCEEDINGS.
16 THE OVERALL PURPOSE OF THESE RULES AND GUIDELINES IS TO
17 SECURE THE DEFENDANT'S CONSTITUTIONAL RIGHT TO A FAIR AND
18 IMPARTIAL JURY WHILE PERMITTING THE PUBLIC TO EXERCISE ITS
19 FIRST AMENDMENT RIGHT OF ACCESS TO CRIMINAL PROCEEDINGS. TO
20 PROTECT AND IDENTIFY -- "TO PROTECT THE IDENTITY," EXCUSE
21 ME, "AND PRIVACY OF JURORS AND TO PROJECT JURORS, WITNESSES
22 AND PARTIES FROM UNNECESSARY COMMOTION, CONFUSION, OR
23 INFLUENCE."
24 I DON'T WANT ANYTHING HAPPENING IN THIS COURTROOM THAT
25 WILL INFLUENCE THE JURY ON ANYTHING OTHER THAN THE EVIDENCE
3322
1 IN THIS CASE. I'M GOING TO REVIEW A FEW THINGS THAT I'VE
2 HEARD IN THIS TRIAL THAT ARE NOT GOING TO BE HEARD AGAIN IN
3 THE FUTURE.
4 I'VE HEARD PEOPLE GET UP WHEN THEY MAKE OBJECTIONS WHEN
5 THE JURY IS PRESENT AND BASICALLY MAKE AN ARGUMENT. THOSE
6 ARGUMENTS HAVE BEEN BASICALLY TENDERED ON, WELL, YOU DID IT
7 FOR THE DEFENDANT, YOU BETTER DO IT FOR US OR YOU AIN'T
8 BEING FAIR. ANOTHER ONE, BASED UPON THE COURT'S RULINGS I
9 HAVE NO FURTHER QUESTIONS. I'M NOT GOING TO HAVE COMMENTS
10 LIKE THAT, BECAUSE WHAT YOU'RE DOING, BASICALLY, IS ARGUING
11 TO THE COURT -- ARGUING TO THE JURORS, OH, WELL, IF THE
12 JUDGE WOULD LET ME ASK THESE QUESTIONS YOU WOULD REALLY GET
13 SOME GOOD STUFF.
14 I'M NOT GOING TO HEAR THE WORDS HAMSTRUNG BY ATTORNEYS.
15 I'M NOT GOING TO HEAR THE WORDS THROWN A CURVE BY THE
16 ATTORNEYS. YOU KNOW, YOU PEOPLE ARE PROFESSIONALS. YOU CAN
17 ALL ASK YOUR QUESTIONS, MAKE YOUR OBJECTIONS, AND MAKE YOUR
18 OBJECTIONS THE WAY OBJECTIONS SHOULD BE MADE. THEY ARE NOT
19 SPEECHES TO THE VICTIMS, NOT SPEECHES TO THE DOCTOR'S
20 FRIENDS, NOT SPEECHES TO THE JURY, THEY ARE ADDRESSED TO ME.
21 MAKE THEM ON LEGAL GROUNDS AND MAKE THEM THAT WAY. IF YOU
22 MAKE SPEECHES ABOUT YOU'RE DOING IT FOR ONE SIDE, YOU'RE NOT
23 DOING IT FOR ME; YOU'RE HAMSTRINGING ME AND NOT DOING IT TO
24 THEM, THAT'S GOING TO BE IMPROPER AND I WILL DEAL WITH IT.
25 I'M GOING TO DEAL WITH IT SEVERELY. I'M NOT GOING TO HAVE A
3323
1 MISTRIAL THROUGHOUT THE REST OF THIS CASE ON THE BASIS OF
2 SOMETHING LIKE THAT HAPPENING.
3 THE OTHER THING THAT I WANT TO MAKE PERFECTLY CLEAR IS
4 THAT I THINK WE'VE HAD AN EXCEPTIONAL JURY. IF YOU LOOK AT
5 THESE PEOPLE, THEY'VE BEEN HERE FOR THREE OR FOUR WEEKS NOW
6 AND HAVE STAYED AWAKE, HAVE BEEN ALERT. THEY HAVE DONE WHAT
7 THEY ARE SUPPOSED TO DO. IT WOULD BE AN ABSOLUTE MOCKERY OF
8 JUSTICE TO HAVE THEM BE HERE ALL THIS TIME AND THEN NOT
9 DELIBERATE THIS CASE.
10 I'M NOT GOING TO ISSUE ANY SORT OF SANCTIONS AS A
11 RESULT OF THIS MOTION, BUT WHAT I AM GOING TO SAY IS THAT
12 FROM NOW ON MAKE YOUR OBJECTIONS, MAKE THEM ON THE RECORD.
13 IT IS NOT A LEGAL GROUND TO SAY THAT YOU DID IT FOR THE
14 OTHER SIDE SO YOU HAVE TO DO IT FOR ME. THAT'S NOT A LEGAL
15 GROUND. STATE THE GROUND, EITHER NO FOUNDATION, IRRELEVANT,
16 WHATEVER THE GROUND IS. LET'S DO IT THAT WAY.
17 EVERYBODY HAS BEEN -- I UNDERSTAND THAT AT THE END OF
18 THE DAY WE'VE ALL KIND OF BLANKED OUT AT VARIOUS POINTS
19 BECAUSE OF HOW TIRING AND TRYING THIS CASE IS. NOBODY KNOWS
20 IT MORE THAN THE COURT PERSONNEL AND THE ATTORNEYS IN THIS
21 CASE. IT IS A TOUGH, TOUGH, CASE. BUT LET'S NOT DO
22 ANYTHING THAT WILL MAKE IT SO THAT THIS CASE IS GOING TO
23 HAVE TO BE REDONE AGAIN. LET'S DO IT NOW AND LET'S GET
24 THROUGH THIS AS QUICKLY AS WE CAN.
25 REMEMBER, AND I WANT TO TELL ALL THE ATTORNEYS, THIS
3324
1 JURY HAS BEEN HERE FOR A LONG TIME. THEY'VE HEARD A LOT OF
2 THINGS. LET'S GET TO THE POINT, AS MUCH AS WE CAN, ON
3 DIRECT EXAMINATION, AS MUCH AS YOU CAN ON CROSS-EXAMINATION.
4 MAKE YOUR POINTS. LET'S GET ANOTHER WITNESS IN HERE AND GET
5 THIS DONE. THE JURY, YOU KNOW, IS ONLY GOING TO BE GOOD FOR
6 SO LONG. I THINK THEY'VE BEEN WONDERFUL, BUT WHEN WE GET
7 PAST SIX WEEKS THEY WON'T BE SO WONDERFUL.
8 ANYTHING ELSE TO DISCUSS BEFORE WE BRING THE JURY IN?
9 MR. STIRBA: NO, YOUR HONOR.
10 MS. BARLOW: WE HAVE NOTHING.
11 THE COURT: OKAY. ASK THE JURY TO COME IN AND
12 WE'LL ASK THE WITNESS TO TAKE THE STAND.
13 (JURY RETURNED TO THE COURTROOM.)
14 THE COURT: THE JURY HAS RETURNED. WE WILL ASK
15 THAT -- GO AHEAD, MR. STIRBA.
16 MR. STIRBA: YES, YOUR HONOR, THANK YOU.
17 DIRECT EXAMINATION, CONT'D
18 BY MR. STIRBA:
19 Q. DOCTOR, IF YOU COULD, ONCE AGAIN, IN YOUR WHITE BINDER
20 TURN TO THE MARY CRANE SECTION. I WANT TO DIRECT YOUR
21 ATTENTION TO THE BACK OF THAT SECTION. THERE IS A RECORD
22 FROM ALTA VIEW HOSPITAL. IT HAS A NUMBER A.V.H. AND THEN
23 FOUR THROUGH SIX. DO YOU SEE THAT?
24 A. I DO.
25 Q. DID YOU USE THAT HISTORICAL RECORD FOR PURPOSES OF YOUR
3325
1 OPINION AS TO MARY CRANE'S CAUSE OF DEATH?
2 A. I DID.
3 Q. AND TELL US, PLEASE, WHY THAT WAS IMPORTANT?
4 A. I WILL. IN MARCH OF '94 THE PATIENT PRESENTED AT THE
5 EMERGENCY ROOM AT ALTA VIEW HOSPITAL AND WAS FOUND TO HAVE
6 AN ACUTE INFECTION, URINARY TRACT INFECTION.
7 HER CONDITION WAS SUCH THAT THE EMERGENCY PHYSICIAN'S
8 DIAGNOSIS WAS ONE OF RULE OUT OR LIKELY SEPSIS. WHAT THIS
9 INDICATES TO ME IS THAT THE PATIENT'S PREEXISTING MEDICAL
10 PROBLEMS WERE OF SUCH MAGNITUDE THAT SHE HAD A PROPENSITY TO
11 BECOME SEPTIC FROM AN INFECTION. SO THIS MADE IT ALL THE
12 MORE LIKELY THAT IN '95, DURING THIS HOSPITALIZATION, SEPSIS
13 WOULD RESULT FROM ANOTHER INFECTION.
14 Q. DOCTOR, WHAT IS ASPIRATION PNEUMONIA?
15 A. ASPIRATION PNEUMONIA OCCURS WHEN STOMACH CONTENTS ARE
16 REGURGITATED AND INHALED INTO THE LUNGS.
17 Q. AND DO YOU HAVE AN OPINION AS TO WHETHER OR NOT MARY
18 CRANE SUFFERED PNEUMONIA, OR ASPIRATION PNEUMONIA?
19 A. I DO.
20 Q. AND TELL US WHAT THAT IS?
21 A. SHE MAY HAVE SUFFERED AN ASPIRATION, BUT IN MY OPINION
22 SHE DID NOT SUFFER A PNEUMONIA FROM SUCH ASPIRATION.
23 Q. AND EXPLAIN TO US THE DIFFERENCE, PLEASE.
24 A. I WILL. WHEN ASPIRATION OCCURS FOOD PARTICLES OR
25 STOMACH CONTENTS CAN ENTER THE LUNG. SOMETIMES THIS WILL
3326
1 RESULT IN INFILTRATES, FLUID APPEARING IN THE LUNG, AND
2 SUBSEQUENT INFECTION. AT OTHER TIMES IT WON'T. IN THIS
3 PARTICULAR CASE CHEST X-RAYS WERE OBTAINED SHOWING THAT
4 THERE WERE NO INFILTRATES. THEREFORE, THERE WAS NOT A
5 PNEUMONIA IF IN FACT ASPIRATION OCCURRED.
6 Q. NOW, I'LL DIRECT YOUR ATTENTION ONCE AGAIN, IN THE
7 SECTION IN FRONT OF YOU, AT MED 270, 271 AND 272. THEY'RE
8 SORT OF IN THE MIDDLE PORTION OF THE MATERIALS. DO YOU HAVE
9 THOSE IN FRONT OF YOU?
10 A. I DO.
11 Q. AND ARE THOSE THE REPORTS OF THE X-RAYS THAT YOU WERE
12 JUST TESTIFYING ABOUT?
13 A. CORRECT. THERE WAS A CHEST X-RAY ON 12/29. ANOTHER ONE
14 ON 1/5. A THIRD ON 1/7. NONE OF THOSE SHOW ANY EVIDENCE OF
15 INFILTRATES THAT WOULD BE DIAGNOSTIC OR CONSISTENT WITH AN
16 ASPIRATION PNEUMONIA.
17 Q. NOW, IF YOU WOULD TURN TO THE NEXT SECTION IN THE BINDER
18 WHICH RELATES TO PATIENT JUDITH LARSEN.
19 A. (WITNESS COMPLIED.)
20 Q. DO YOU HAVE THAT IN FRONT OF YOU NOW?
21 A. I DO.
22 Q. DOCTOR, DO YOU HAVE AN OPINION, BASED UPON YOUR REVIEW
23 OF THE RECORDS CONCERNING PATIENT LARSEN AND HER MEDICAL
24 HISTORY, AS TO HER CAUSE OF DEATH ON JANUARY 3RD OF 1996?
25 A. I DO.
3327
1 Q. AND WHAT IS YOUR OPINION?
2 A. MY OPINION IS THAT MRS. LARSEN DIED FROM A COMBINATION
3 OF PREEXISTING MEDICAL CONDITIONS, SUPERIMPOSED ON AN
4 EPISODE OF GI BLEEDING IN THE HOSPITAL.
5 Q. DO YOU HAVE AN OPINION AS TO WHETHER MORPHINE CAUSED OR
6 CONTRIBUTED TO HER DEATH?
7 A. I DO.
8 Q. AND WHAT IS YOUR OPINION?
9 A. MY OPINION IS THAT MORPHINE NEITHER CAUSED NOR
10 CONTRIBUTED TO HER DEATH.
11 Q. NOW, YOU TALKED ABOUT A COMPLICATION OF, I BELIEVE --
12 YOU PROBABLY DIDN'T SAY MEDICAL HISTORY, BUT CIRCUMSTANCES.
13 IF YOU COULD TURN TO THE FIRST PAGE, PLEASE, OF THE
14 MATERIALS, WHICH IS A REPORT OF CONSULTATION BY DR.
15 DIENHART. DO YOU SEE "PAST MEDICAL HISTORY"?
16 A. I DO.
17 Q. HAVE YOU REVIEWED THIS DOCUMENT BEFORE?
18 A. I HAVE.
19 Q. AND IS IT SIGNIFICANT, FOR PURPOSES OF YOUR OPINION, AS
20 TO THE CAUSE OF DEATH?
21 A. IT IS.
22 Q. AND GENERALLY TELL US WHY THAT IS?
23 A. MRS. LARSEN HAD SUFFERED ALL KINDS OF SEVERE MEDICAL
24 PROBLEMS IN THE PAST. SHE'D HAD AT LEAST THREE DOCUMENTED
25 STROKES, ONE OF WHICH WAS VERY LARGE. SHE HAD A HISTORY OF
3328
1 QUITE SIGNIFICANT HEART DISEASE. SHE HAD HER THYROID OUT.
2 SHE'D HAD VARIOUS GASTROINTESTINAL PROBLEMS. IN MY OPINION
3 SHE WAS LIVING ON BORROWED TIME WHEN SHE ENTERED THE
4 HOSPITAL.
5 Q. IS THERE SOME SUPPORT FOR, IN THE HISTORY THAT YOU
6 REVIEWED, YOUR STATEMENT THAT SHE WAS LIVING ON BORROWED
7 TIME?
8 A. WELL, THERE IS. THIS LADY HAD SUFFERED STROKES IN THE
9 PAST FROM WHICH THE TREATING PHYSICIANS WERE CONCERNED THAT
10 SHE WOULD NOT RECOVER.
11 Q. LET ME DIRECT YOUR ATTENTION TO THE BACK OF THE
12 MATERIALS IN THE BACK OF THE SECTION -- THE SEGMENT, RATHER.
13 SPECIFICALLY YOU'LL SEE THERE'S SOME COTTONWOOD HOSPITAL
14 RECORDS?
15 A. YES.
16 Q. AND THEY START TOWARDS THE END AND THEY HAVE VARIOUS
17 NUMBERS ON THEM, BUT SPECIFICALLY I WOULD DIRECT YOUR
18 ATTENTION TO A DISCHARGE SUMMARY BY DR. PEARCE. THAT'S C.H.
19 38 DOWN AT THE BOTTOM. IT'S RIGHT TOWARD THE END.
20 A. I HAVE THAT.
21 Q. DO YOU RECALL REVIEWING THAT DOCUMENT?
22 A. YES.
23 Q. AND HOW HAS THAT HISTORY BEEN HELPFUL TO YOU FOR
24 PURPOSES OF YOUR OPINION?
25 A. WELL, I THINK THAT IT IS SPELLED OUT IN CLEAR ENGLISH
3329
1 THE EXTREMELY DIRE HEALTH SITUATION THAT MRS. LARSEN WAS
2 EXPERIENCING. FOR INSTANCE, THE LAST SIX MONTHS OF HER LIFE
3 HAD BEEN VERY POOR QUALITY. IN FACT, NO QUALITY AT ALL.
4 THE FAMILY WANTED NO TREATMENT OF INFECTION, SUCH AS URINARY
5 INFECTION, PULMONARY, ET CETERA. I MEAN, IT APPEARS TO ME
6 THAT THE FAMILY AND THE PHYSICIANS HAD BOTH AT THIS POINT IN
7 TIME FACED THE UNHAPPY FACT THAT THIS WOMAN WAS GOING TO DIE
8 VERY SOON.
9 Q. NOW, YOU MENTIONED A G.I. BLEED OR A GASTROINTESTINAL
10 BLEED?
11 A. I DID.
12 Q. COULD YOU ORIENT US, PLEASE, BASED UPON YOUR REVIEW OF
13 THE RECORDS, WHAT THE CIRCUMSTANCES WERE IN THE HOSPITAL
14 THAT YOU'RE REFERRING TO?
15 A. YES. AT SOME POINT IN TIME DURING THE HOSPITALIZATION,
16 MRS. LARSEN WAS NOTED TO HAVE VOMITED UP WHAT IS CALLED
17 COFFEE GROUND EMESIS. WHEN THERE'S BLEEDING IN THE UPPER
18 G.I. TRACT OF THE STOMACH, THE FIRST PART OF THE SMALL
19 INTESTINE, THE BLOOD REMAINS FOR A WHILE AND THEN VOMITS
20 BACK UP. IT DOESN'T COME UP RED, IT COMES UP -- THE BEST
21 DESCRIPTION OF IT IS COFFEE GROUNDS. IT LOOKS JUST LIKE
22 COFFEE GROUNDS. IN FACT, THAT WAS OBSERVED. WHAT THAT IS
23 IS THOSE COFFEE GROUNDS REPRESENT BLOOD IN THE STOMACH.
24 FOLLOWING THAT SHE WAS NOTED TO HAVE WHAT WE CALL
25 MELENA, WHICH IS A BLACK, TARRY STOOL. WHAT THAT REPRESENTS
3330
1 IS THE BLOOD THAT BLED INTO THE GASTROINTESTINAL TRACT THAT
2 WASN'T VOMITED UP, BUT RATHER PASSED THROUGH THE SYSTEM AND
3 CAME OUT IN THE STOOL. THOSE ARE THE CLASSIC SIGNS YOU
4 LEARN ON YOUR FIRST DAY OF MEDICAL SCHOOL OF G.I. BLEEDING,
5 COFFEE GROUND EMESIS AND MELENA. SHE HAD THEM BOTH. THERE
6 IS NO QUESTION AT ALL THAT SHE HAD G.I. BLEEDING.
7 THE AMOUNT OF BLEEDING WAS EVIDENCE, AT LEAST
8 INFERENTIALLY, AND A BLOOD COUNT WAS DONE WHICH SHOWED THAT
9 SHE WAS QUITE SIGNIFICANTLY ANEMIC. IN MY OPINION, THAT
10 CONTRIBUTED SUBSTANTIALLY TO HER DEMISE.
11 Q. LET ME DIRECT YOUR ATTENTION IN THE BINDER TO MED 480.
12 IT'S AFTER SOME PROGRESS NOTES. DO YOU HAVE THAT IN FRONT
13 OF YOU?
14 A. I DO.
15 Q. THAT WOULD BE, ONCE AGAIN, A REPORT OF A BLOOD TEST?
16 A. IT IS. A BLOOD COUNT.
17 Q. CAN YOU EXPLAIN TO US WHAT FINDINGS ARE MADE IN THAT
18 REPORT THAT ARE RELEVANT TO WHAT YOU'VE JUST TESTIFIED TO?
19 A. YES. IF YOU LOOK AT THE COLUMN ON THE FAR LEFT, YOU
20 WILL SEE SOMETHING THAT SAYS H.C.T. THAT STANDS FOR
21 HEMATOCRIT. THAT IS A MEASURE OF THE AMOUNT OF RED BLOOD
22 CELLS THAT THE PATIENT HAS.
23 YOU WILL NOTE THAT THE NORMAL RANGE OF HEMATOCRIT IS 36
24 TO 46 PERCENT. YOU'LL FURTHER NOTE THAT ON THE ADMISSION
25 BLOOD TESTING, ON 12/6/95, THE HEMATOCRIT WAS 41.2 PERCENT.
3331
1 FOLLOWING THE EPISODE OF G.I. BLEEDING, WHEN THEY RECHECKED
2 IT, IT WAS 30.2 PERCENT. SO WHAT THAT MEANS IS THAT THIS
3 PATIENT HAD LOST 25 PERCENT OF HER RED CELLS BETWEEN 12/6/95
4 AND 12/26/95. SHE'D LOST THEM WHEN SHE -- SHE'D LOST THEM
5 INTO HER G.I. TRACT WHEN SHE BLED INTO THE STOMACH, WHICH
6 SHE LATER VOMITED UP AND PASSED IN HER STOOL.
7 Q. WHAT EFFECT DID THE G.I. BLEED HAVE IN TERMS OF HER
8 OVERALL MEDICAL SITUATION?
9 A. THE FUNCTION OF RED BLOOD CELLS IS TO CARRY OXYGEN TO
10 THE TISSUES. THE LESS RED BLOOD CELLS YOU HAVE THE LESS
11 ABILITY THE BODY HAS TO DELIVER OXYGEN TO THE TISSUES,
12 WHATEVER THE STATUS OF THE HEART, WHICH WASN'T NORMAL IN
13 THIS CASE, IS. THEREFORE, EVEN ASSUMING SHE HAD NORMAL
14 CARDIOVASCULAR FUNCTION, WHICH SHE DIDN'T, HER ABILITY TO
15 DELIVER OXYGEN TO THE CRITICAL TISSUES, TO THE HEART AND TO
16 THE LUNGS AND TO THE BRAIN, WAS SEVERELY DIMINISHED.
17 Q. DOES THAT DIMINISHMENT HAVE ANY SIGNIFICANCE TO YOU, IN
18 TERMS OF YOUR OPINION, AS TO THE CAUSE OF DEATH?
19 A. YES. I THINK IT WAS A MAJOR CONTRIBUTING FACTOR.
20 Q. AND WHY SO?
21 A. BECAUSE OF THE EXPLANATION I JUST STATED. THE OXYGEN
22 CARRYING ABILITY OF THE BLOOD HAD BEEN DIMINISHED TO A
23 CRITICAL LEVEL. THAT, SUPERIMPOSED ON THE HEART DISEASE AND
24 ALL THE PREVIOUS STROKES, MEANT THAT SHE WASN'T GETTING
25 SUFFICIENT OXYGEN TO HER VITAL ORGANS. WHEN THAT HAPPENS IN
3332
1 A PATIENT WITH THIS AMOUNT OF PROBLEMS, IT USUALLY RESULTS
2 IN THEIR DEMISE.
3 Q. WOULD THERE HAVE BEEN, OR IS THERE, A TIME LAPSE BETWEEN
4 THE TIME SOMEBODY ACTUALLY IS BLEEDING AND THERE IS EVIDENCE
5 OF THAT BLEEDING IN TERMS OF VOMITUS MATERIAL OR MELENA?
6 A. THERE CAN BE.
7 Q. AND EXPLAIN WHY THAT WOULD BE?
8 A. IT TAKES AN AMOUNT OF TIME FOR MATERIAL TO MOVE THROUGH
9 THE G.I. TRACT, WHICH IS 25 OR 30 FEET LONG OF INTESTINE AND
10 SO FORTH. IT'S VERY TYPICAL THAT FROM THE TIME OF BLEEDING
11 UNTIL THE TIME THAT THAT BLOOD MOVES ALL THE WAY THROUGH THE
12 SMALL INTESTINE AND LARGE INTESTINE AND COMES OUT THE
13 RECTUM, IT WILL TAKE A DAY OR TWO.
14 Q. SO, FOR EXAMPLE, IN THIS CASE I BELIEVE THE HOSPITAL
15 RECORDS REFLECT THAT SHE STARTED GETTING ILL ON THE 29TH OF
16 DECEMBER. THE TEST RESULT THAT YOU JUST IDENTIFIED IS ON
17 THE 26TH?
18 A. CORRECT.
19 Q. CAN YOU EXPLAIN WHY THE HEMATOCRITS WOULD BE LOW AT THAT
20 POINT EVEN THOUGH SHE WAS NOT ACTUALLY VOMITING UNTIL THE
21 29TH?
22 A. THE BLOOD LOSS HAD ALREADY OCCURRED. THE BLOOD LOSS
23 FROM THE CIRCULATORY SYSTEM HAD OCCURRED. ONCE THE BLOOD IS
24 LOST FROM THE CIRCULATORY SYSTEM, IT'S MEASURABLE IN TERMS
25 OF A DECREASED HEMATOCRIT. HOWEVER LONG IT TAKES TO
3333
1 ACTUALLY SEE IT COME OUT, COME OUT THE OTHER END, IT'S GONE
2 FROM THE CIRCULATION AND THAT'S WHAT COUNTS.
3 Q. NOW, IF YOU'LL TURN TO MED 489, WHICH IS A REPORT FROM,
4 IT LOOKS LIKE, C.T. HEAD. IT'S RIGHT AFTER THE LAB REPORT
5 YOU JUST TESTIFIED CONCERNING. CAN YOU TELL US WHAT THAT
6 IS?
7 A. IT'S A REPORT FROM A C.T. SCAN OF THE BRAIN, OF THE
8 HEAD, THAT WAS PERFORMED ON THE PATIENT ON THE 26TH OF
9 DECEMBER.
10 Q. I WANT TO DIRECT YOUR ATTENTION TO THE IMPRESSION
11 SECTION AND THERE'S SOME LANGUAGE THERE THAT SAYS "THE LEFT
12 FRONTAL LOBE REGION MAY SHOW SOME MINIMAL INCREASE IN
13 DENSITY, WHICH MAY REFLECT SOME LUXURY PROFUSION, WHICH MAY
14 REFLECT A MORE OF A SUBACUTE TYPE PROCESS. CLINICAL
15 CORRELATION IS RECOMMENDED." DID YOU REVIEW THAT RECORD FOR
16 PURPOSES OF OPINING AS YOU HAVE?
17 A. I DID.
18 Q. AND DID IT HAVE SIGNIFICANCE TO YOU IN TERMS OF YOUR
19 OPINION?
20 A. IT DID.
21 Q. AND TELL US, PLEASE, HOW SO?
22 A. IT REFLECTS A COUPLE OF THINGS. IT REFLECTS THAT THE
23 PATIENT HAD SUFFERED STROKES IN THE PAST. HOWEVER, SHE HAD
24 FINDINGS THAT WERE CONSISTENT NOT WITH THOSE PAST STROKES,
25 BUT RATHER WITH A MORE RECENT STROKE; A STROKE THAT WAS
3334
1 OCCURRING SHORTLY BEFORE OR IN PROCESS AT THE TIME THAT THIS
2 EXAM OCCURRED. THAT'S WHAT'S REFERRED TO BY THE LUXURY
3 PROFUSION AND THE MORE SUBACUTE PROCESS.
4 SO THIS C.T. SCAN, TO ME, STRONGLY SUGGESTS THAT ON TOP
5 OF AT LEAST THREE PRIOR STROKES, MRS. LARSEN SUFFERED YET
6 ANOTHER STROKE SHORTLY BEFORE HER DEATH, IN THE NEIGHBORHOOD
7 OF THE 26TH OF DECEMBER, 1995.
8 Q. THEN THERE'S AN E.K.G. REPORT AFTER THAT REPORT YOU JUST
9 TESTIFIED TO, MED 490. DO YOU HAVE THAT?
10 A. I DO.
11 Q. AND IT REPORTS, IT SAYS, "ABNORMAL E.K.G., LEFT ANTERIOR
12 FISTICULAR BLOCK." DID THAT HAVE ANY SIGNIFICANCE TO YOU
13 FOR THE PURPOSE OF YOUR OPINION?
14 A. IT DID.
15 Q. TELL US, PLEASE, HOW SO?
16 A. THE ELECTRICAL SYSTEM OF THE HEART CONSISTS BASICALLY OF
17 THREE BRANCHES. ONE OF THE THREE IS THE LEFT ANTERIOR
18 FASCICLE. IF DISEASE OCCURS IN THE CONDUCTING SYSTEM, THEN
19 THAT FASCICLE, OR ONE OF THE OTHER TWO WHICH CONDUCTS
20 ELECTRICITY THROUGH THE HEART, CAN BE BLOCKED AND THEY'LL NO
21 LONGER CONDUCT THE IMPULSE. WHAT THAT BASICALLY MEANS IS
22 THAT THIS PATIENT IS AT RISK FOR THE HEART TO SIMPLY STOP
23 BEATING, STOP CONDUCTING ELECTRICITY. SHE'S AT RISK, ON THE
24 BASIS OF THAT, OF SUFFERING A SUDDEN CARDIAC DEATH.
25 Q. IS THERE A NAME FOR THAT KIND OF DEATH?
3335
1 A. ONE WOULD CALL IT AN ARRHYTHMIA OR DYSRHYTHMIA.
2 Q. AND CAN YOU JUST TELL US, BRIEFLY, WHAT ARRHYTHMIA IS?
3 A. YES. IT OCCURS WHEN THE ELECTRICAL CONDUCTING SYSTEM OF
4 THE HEART STOPS CONDUCTING ELECTRICITY. I COULD MAKE AN
5 ANALOGY. IN YOUR AUTOMOBILE, IF THE WIRE FROM THE
6 DISTRIBUTOR TO THE SPARK PLUG IS BROKEN OR CUT OR SOMETHING
7 LIKE THAT, THE JUICE DOESN'T GET FROM THE DISTRIBUTOR TO THE
8 CYLINDER AND DOESN'T FIRE. WHEN THAT HAPPENS IN THE HEART,
9 THE HEART DOESN'T BEAT, DOESN'T PUMP, THE PATIENT DIES.
10 Q. IF YOU WOULD TURN, PLEASE, TO THE NEXT SECTION, WHICH IS
11 MR. ALLDREDGE.
12 A. YES.
13 Q. YOU HAVE THAT IN FRONT OF YOU?
14 A. YES.
15 Q. AND ONCE AGAIN, YOU HAVE REVIEWED VARIOUS RECORDS
16 CONCERNING MR. ALLDREDGE FOR PURPOSES OF RENDERING AN
17 OPINION IN THIS CASE, IS THAT RIGHT?
18 A. THAT'S RIGHT.
19 Q. DO YOU HAVE AN OPINION, DOCTOR, AS TO THE CAUSE OF DEATH
20 OF ENNIS ALLDREDGE?
21 A. I DO.
22 Q. AND WHAT IS YOUR OPINION?
23 A. MY OPINION IS THAT THIS PATIENT SUFFERED A CEREBRAL
24 VASCULAR ACCIDENT. IN OTHER WORDS, A STROKE DURING THE
25 HOSPITALIZATION. THAT CEREBRAL VASCULAR ACCIDENT,
3336
1 SUPERIMPOSED ON HIS LONG-STANDING INSULIN DEPENDENT DIABETES
2 AND KNOWN HEART DISEASE, CAUSED HIS DEMISE.
3 Q. DO YOU HAVE AN OPINION AS TO WHETHER MORPHINE PLAYED A
4 ROLE IN CAUSING OR CONTRIBUTING TO HIS DEATH?
5 A. I DO.
6 Q. AND WHAT IS YOUR OPINION?
7 A. MY OPINION IS THAT MORPHINE DID NOT CAUSE OR CONTRIBUTE
8 TO THIS PATIENT'S DEATH.
9 Q. NOW, IF YOU'LL TURN TO THE FIRST PAGE OF THAT SECTION.
10 IT'S ONCE AGAIN A REPORT OF CONSULTATION. DO YOU SEE THAT?
11 A. I DO.
12 Q. DID YOU REVIEW THAT FOR PURPOSES OF RENDERING YOUR
13 OPINION?
14 A. I DID.
15 Q. AND WAS THE INFORMATION THERE SIGNIFICANT TO YOU WITH
16 RESPECT TO YOUR OPINION?
17 A. YES.
18 Q. AND TELL US, PLEASE, HOW SO AND WHAT INFORMATION?
19 A. THIS GENTLEMAN HAD A NUMBER OF SEVERE MEDICAL PROBLEMS
20 THAT WERE LONG STANDING, ANY ONE OF WHICH WOULD HAVE BEEN
21 SUFFICIENT TO CAUSE HIS DEATH. HE HAD HAD CORONARY ARTERY
22 BYPASS SURGERY WAY BACK IN 1982. SO JUST ON THE BASIS OF
23 THAT, EVEN WITHOUT HIS DIABETES AND WITHOUT HIS OTHER
24 MEDICAL PROBLEMS, AT HIS AGE HE HAD OUTLIVED HIS LIFE
25 EXPECTANCY JUST BASED UPON THAT CARDIAC CONDITION, ON HIS
3337
1 BYPASS GRAPH THOSE YEARS AGO. HE WAS AN INSULIN DEPENDENT
2 DIABETIC OF LONG STANDING. MOST DIABETICS DON'T LIVE AS
3 LONG AS THIS GENTLEMAN DID WITH THAT CONDITION. HE HAD --
4 Q. I'LL STOP YOU RIGHT THERE. YOU SAY INSULIN DEPENDENT
5 DIABETIC. CAN YOU EXPLAIN WHAT THAT IS AND WHY THAT IS
6 SIGNIFICANT IN TERMS OF LONGEVITY?
7 A. YES. THERE ARE BASICALLY TWO KINDS OF DIABETES. IN THE
8 OLD DAYS, WHEN I WENT TO MEDICAL SCHOOL, THEY CALLED IT
9 JUVENILE ONSET OR ADULT ONSET OR INSULIN DEPENDANT OR
10 NONINSULIN DEPENDANT. THE PRESENT TERMINOLOGY IS TYPE ONE
11 AND TYPE TWO.
12 THE KIND THAT IS INSULIN DEPENDENT CARRIES A MUCH MORE
13 GRAVE PROGNOSIS THAN THE NONINSULIN DEPENDENT DIABETIC. THE
14 DIABETICS WHO ARE INSULIN DEPENDENT SUFFER THE COMPLICATIONS
15 THAT WE OFTEN HEAR ABOUT WITH DIABETICS. THAT IS, LOSS OF
16 VISION, LOSS OF THEIR KIDNEYS, SMALL VESSEL CIRCULATORY
17 DISEASE. THOSE ARE UNFORTUNATE SECONDARY AND TERTIARY
18 COMPLICATIONS OF DIABETES. THAT'S WHAT HAPPENS AND MOST
19 DIABETICS ULTIMATELY DIE OF THOSE COMPLICATIONS. THAT'S
20 WHAT THIS GENTLEMAN HAD.
21 Q. IF YOU WOULD CONTINUE, I THINK YOU WERE REFERRING TO
22 SOME OTHER DATA ON THAT REPORT WHICH WAS SIGNIFICANT TO YOU?
23 A. HE HAD A QUITE UNUSUAL MULTI SYSTEM DISEASE CALLED
24 MYCOSIS FUNGOIDES. THIS IS AN UNCOMMON TO RARE DISEASE. I
25 MEAN, MUCH LESS COMMON THAN THE DIABETES AND HEART DISEASE
3338
1 AND STROKES AND ALL OF THE OTHER THINGS. I'VE SEEN LESS
2 THAN A HANDFUL OF CASES OF THIS IN MY PROFESSIONAL CAREER.
3 DR. DIENHART'S CONSULTATION INDICATES THAT HE WAS END
4 STAGE FROM THIS MYCOSIS FUNGOIDES. IN OTHER WORDS, HE WAS
5 AT DEATH'S DOOR FROM THAT ALONE. THAT'S WHAT END STAGE
6 MEANS, IS YOU'RE AT THE END.
7 Q. AND WHAT IS THAT DISEASE THAT YOU'RE TALKING ABOUT?
8 A. WELL, IT'S A DISEASE THAT AFFECTS LITERALLY ALL THE
9 ORGANS IN THE BODY. IT CAUSES GENERAL DETERIORATION. HE'D
10 IN FACT HAD TOTAL BODY IRRADIATION AT ONE POINT. THEY'D
11 GIVEN HIM THERAPEUTIC RADIATION AND RADIATED HIS ENTIRE
12 BODY.
13 Q. WHAT ELSE ON THAT REPORT, IF ANYTHING, WAS SIGNIFICANT
14 TO YOU FOR PURPOSES OF YOUR OPINION?
15 A. WELL, HE HAD HYPERTENSION, HE HAD HIGH BLOOD PRESSURE.
16 HE HAD AN ELECTROCARDIOGRAM THAT WAS ABNORMAL. IT SHOWED
17 THAT HE HAD A THICKENED LEFT VENTRICLE. THAT'S WHAT L.V.H.
18 REFERS TO THERE: LEFT VENTRICULAR HYPERTROPHY. HE HAD
19 ABNORMAL S.T.T. WAVES IN HIS ELECTROCARDIOGRAM. I MEAN, HE
20 HAD EVIDENCE OF OLD MYOCARDIAL INFARCTIONS, HEART ATTACKS,
21 ON HIS E.K.G. SO HE HAD -- I MEAN, THIS GENTLEMAN WAS
22 TREMENDOUSLY COMPROMISED. ADDITIONALLY, HE HAD
23 HYPOTHYROIDISM, WHICH IS ANOTHER PROBLEM. HE HAD A LOT
24 WRONG WITH HIM.
25 Q. NOW, I WANT TO DIRECT YOUR ATTENTION, IF WE CAN FLIP
3339
1 PAST SOME PROGRESS NOTES TO, I THINK IT'S MED -- ACTUALLY,
2 LET'S START WITH MED 22, WHICH IS ANOTHER LAB REPORT.
3 A. I SEE THAT.
4 Q. I'M DIRECTING YOUR ATTENTION SPECIFICALLY TO THE FINDING
5 OF G.L.U., WHICH IS AT 162 ON 1/10/96, THE DATE OF HIS
6 ADMISSION. WHAT DOES THAT FINDING REPRESENT?
7 A. IT'S HIS BLOOD SUGAR. THE G.L.U. STANDS FOR GLUCOSE.
8 IT'S HIS BLOOD SUGAR, WHICH YOU WOULD EXPECT IS ELEVATED AT
9 THAT TIME.
10 Q. WHEN YOU SAY YOU WOULD EXPECT IT, WHY DO YOU EXPECT IT?
11 A. BECAUSE OF HIS DIABETES. EVEN WITH TREATMENT MOST
12 DIABETICS WILL RUN AN ELEVATED BLOOD SUGAR.
13 Q. AND THEN THE NEXT REPORT, WHICH IS THE NEXT PAGE, 23,
14 THERE'S AN ADDITIONAL FINDING ON 1/13 OF '96 THAT SAYS
15 G.L.U. IS AT 226. SO IT'S HIGHER THAN THE FIRST DAY?
16 A. RIGHT.
17 Q. CAN YOU EXPLAIN THAT FINDING?
18 A. YES. HIS DIABETES IS UNDER WORSE CONTROL, AND THAT'S
19 NOT UNEXPECTED. HE'S HAD DETERIORATION OF HIS CONDITION AND
20 IT PLACES GREATER STRESS ON THE BODY AND WILL GENERALLY
21 CAUSE ELEVATION OF THE BLOOD SUGAR. THAT'S CONSISTENT WITH
22 WHAT WAS GOING ON. HIS KIDNEYS WERE ALSO BEGINNING TO FAIL.
23 HIS B.U.N. WAS ELEVATED TO 22.
24 Q. NOW, THERE'S ALSO THE NEXT PAGE, MED 27. DO YOU SEE
25 THAT?
3340
1 A. YES.
2 Q. AND WHAT IS THAT?
3 A. IT'S A REPORT OF AN M.R.I. SCAN OF THE BRAIN THAT WAS
4 PERFORMED IN THE HOSPITAL ON JANUARY 12TH, '96.
5 Q. AND WHAT SIGNIFICANCE DID THAT HAVE TO YOU IN TERMS OF
6 YOUR OPINION?
7 A. LET ME STATE THAT NOT ONLY DID I REVIEW THIS REPORT --
8 MR. MAJOR: WE'LL OBJECT AT THIS POINT IN TIME. I
9 DON'T THINK HE'S QUALIFIED, OR HAS BEEN QUALIFIED, AS AN
10 EXPERT TO DISCUSS WHETHER HE HAS LOOKED AT X-RAYS OR WHETHER
11 HE HAS EXAMINED THOSE X-RAYS. THE FOUNDATION FOR WHERE HE'S
12 COMING FROM.
13 THE COURT: CAN YOU REPHRASE THE QUESTION?
14 MR. STIRBA: YES. I ASKED HIM IF THIS REPORT WAS
15 SIGNIFICANT IN TERMS OF HIS OPINION. THAT WAS THE QUESTION
16 I ASKED.
17 THE WITNESS: THE ANSWER IS YES.
18 Q. (BY MR. STIRBA) TELL US, PLEASE, WHY?
19 A. THE REPORT RAISES THE POSSIBILITY THAT THIS PATIENT HAS
20 SUFFERED AN ACUTE STROKE, A CEREBRAL VASCULAR ACCIDENT.
21 THERE ARE ABNORMALITIES ON THE M.R.I. THAT THE RADIOLOGIST
22 IS SUSPICIOUS REPRESENTS AN ACUTE STROKE INVOLVING THE
23 OCCIPITAL AREA OF THE BRAIN.
24 Q. HAVE YOU RELIED ON OR REVIEWED ANY OTHER MATERIAL --
25 MR. MAJOR: OBJECTION. IT HASN'T BEEN INTRODUCED
3341
1 INTO EVIDENCE AT THIS POINT IN TIME.
2 THE COURT: I DIDN'T HEAR THE QUESTION. LET'S HEAR
3 THE QUESTION FIRST.
4 MR. STIRBA: HAS HE RELIED ON OR REVIEWED ANY OTHER
5 MATERIAL RELEVANT TO THIS REPORT. I'D BE HAPPY TO BRING IT
6 UP IN A RECESS, YOUR HONOR.
7 THE COURT: OKAY.
8 Q. (BY MR. STIRBA) IF YOU'LL TURN TO THE NEXT PAGE,
9 DOCTOR. WHAT IS THAT?
10 A. I'M SORRY. I THOUGHT YOU WERE GOING TO THE NEXT
11 PATIENT.
12 Q. I'M SORRY. IT'S 37, MED 37. IT'S THE NEXT PAGE AFTER
13 THE M.R.I. REPORT.
14 A. ALL RIGHT. THIS IS A COPY OF AN ELECTROCARDIOGRAM THAT
15 WAS PERFORMED ON MR. ALLDREDGE ON JANUARY 10TH, IT WOULD
16 APPEAR.
17 Q. AND WHAT FINDINGS ARE MADE CONCERNING THAT TEST?
18 A. THERE ARE A NUMBER OF ABNORMAL FINDINGS. HE HAS WHAT'S
19 CALLED A FIRST DEGREE A.V. BLOCK. THIS IS YET ANOTHER KIND
20 OF ELECTRICAL CONDUCTION SYSTEM DISTURBANCE IN THE HEART.
21 THE A.V. NODE IS THE PART OF THE HEART WHERE THE ELECTRICAL
22 IMPULSE IS TRANSMITTED FROM THE PACEMAKER DOWN TO THE
23 VENTRICLES AND THERE WAS A BLOCK IN THAT. THAT ALONE CAN BE
24 A CAUSE OF SUDDEN DEATH.
25 HE HAD LEFT VENTRICULAR HYPERTROPHY, WHICH MEANS THAT
3342
1 THE WALL OF HIS LEFT VENTRICLE, THE PUMP, WAS THICKENED, WAS
2 DYSFUNCTIONAL. HE HAD EVIDENCE OF A PREVIOUS HEART ATTACK.
3 WHERE IT SAYS INFERIOR INFARCT, AGE UNDETERMINED, WHAT THAT
4 MEANS IS THAT HE'S HAD A HEART ATTACK THAT INVOLVES THE
5 INFERIOR WALL, THE BOTTOM WALL, IF YOU WILL, OF THE HEART.
6 HE HAD A PROLONGED Q.T. INTERVAL WHICH HAS TO DO WITH
7 REPOLARIZATION. ANOTHER ELECTRICAL CONDUCTING SYSTEM
8 ABNORMALITY. HE HAD PROBLEMS WITH HIS CONDUCTING SYSTEM,
9 WITH HIS HEART MUSCLE. HIS HEART WAS IN BAD SHAPE.
10 Q. THE FINDINGS REFLECTED THERE THAT YOU'VE TESTIFIED TO,
11 ARE THEY CONSISTENT -- ARE THEY SIGNIFICANT FOR PURPOSES OF
12 YOUR OPINION AS TO CAUSE OF DEATH?
13 A. THEY ARE.
14 Q. AND TELL US, PLEASE, HOW SO?
15 A. WELL, WHAT THEY BASICALLY MEAN IS THAT THIS -- HIS HEART
16 WAS SUBJECT TO STOPPING -- TO STOP WORKING, BASICALLY, AT
17 ANY POINT IN TIME. ANY ADDITIONAL INSULT COULD HAVE
18 RESULTED IN -- USING COMMON PARLANCE, THE CLOCK STOPPED
19 TICKING. I BELIEVE THAT'S WHAT HAPPENED.
20 Q. NOW, IF YOU WOULD GO TO MED 38, THERE'S ANOTHER E.K.G.
21 REPORT. CAN YOU TELL IF THAT'S THE SAME REPORT THAT YOU --
22 AS YOU JUST TESTIFIED TO OR DOES THAT REPORT DIFFERENT
23 FINDINGS?
24 A. I THINK IT'S THE SAME REPORT.
25 Q. OKAY. AND THEN THERE'S ANOTHER REPORT AFTER THAT WHICH
3343
1 IS AT MED 39. IS THAT A DIFFERENT E.K.G. RESULT?
2 A. IT LOOKS LIKE IT'S A DIFFERENT RESULT. WELL, THE
3 FINDINGS ARE ESSENTIALLY THE SAME. IT WAS PREPARED AT A
4 DIFFERENT TIME.
5 Q. I NOTICE THE REPORT LANGUAGE IS DIFFERENT. IS THERE ANY
6 MATERIAL DIFFERENCE IN TERMS OF THE FINDINGS ON THAT REPORT
7 THAN WHAT YOU JUST TESTIFIED TO?
8 A. NO. THE FINDINGS ARE THE SAME.
9 Q. NOW, YOU HAVE REVIEWED THE AUTOPSY REPORT CONCERNING MR.
10 ALLDREDGE?
11 A. YES, I HAVE.
12 Q. AND IS THAT REPORT IMPORTANT OR SIGNIFICANT TO YOU FOR
13 PURPOSES OF YOUR OPINION THAT HE SUFFERED A STROKE?
14 A. IT IS.
15 Q. AND TELL US, PLEASE, IN WHAT RESPECT IT IS IMPORTANT TO
16 YOU?
17 A. IT'S IMPORTANT BECAUSE IT WASN'T POSSIBLE FOR THE
18 PATHOLOGIST TO CONFIRM OR DISCONFIRM THAT THE PATIENT HAD
19 HAD A STROKE INVOLVING THE LEFT OCCIPUT. THERE WAS
20 SIGNIFICANT DECOMPOSITION OF THE BRAIN AT THE TIME OF
21 AUTOPSY. I BELIEVE THAT DR. GREY ACTUALLY REFERRED TO THERE
22 BEING PUDDLING. WHAT THAT MEANS IS THAT NORMAL BRAIN
23 TISSUE, WHICH IS SOLID, HAD LITERALLY BEEN LIQUIFIED BY
24 DECOMPOSITION AND THEREFORE THERE WAS NO ANATOMY TO LOOK AT.
25 ONE COULDN'T REALLY MAKE AN ADEQUATE PATHOLOGICAL DIAGNOSIS
3344
1 OF WHAT HAD GONE ON IN THAT ANATOMIC AREA. THEREFORE, HAD A
2 STROKE OCCURRED THERE, IT WOULDN'T HAVE BEEN POSSIBLE FOR
3 THE PATHOLOGIST TO BE ABLE TO CONFIRM THAT ON THE BASIS OF
4 AN AUTOPSY FINDING.
5 Q. NOW, IF YOU WOULD TURN THREE OR FOUR PAGES AFTER THOSE
6 REPORTS, THERE IS ANOTHER WHAT APPEARS TO BE E.K.G. REPORT
7 ON C.U.N.N. 16. IT'S AFTER SOME MEDICAL DIRECTIVES OR
8 MEDICAL TREATMENT PLAN DOCUMENTS. DO YOU SEE THAT?
9 MR. MAJOR: WHAT NUMBER WAS THAT?
10 MR. STIRBA: C.U.N.N. 000016.
11 THE WITNESS: I SEE THAT.
12 MR. STIRBA: IT'S AFTER THE MEDICAL TREATMENT PLAN.
13 Q. (BY MR. STIRBA) HAVE YOU REVIEWED THAT?
14 A. I HAVE.
15 Q. AND WHAT IS -- FIRST, THE DATE OF THAT IS WHEN?
16 A. THE DATE OF THAT IS THE 17TH OF APRIL. THERE'S A HOLE
17 IN MY BINDER THAT OBLITERATES THE YEAR.
18 Q. THERE'S NOT A HOLE IN MINE. LET ME JUST SHOW YOU.
19 MR. STIRBA: IF I MAY APPROACH?
20 THE COURT: YES.
21 THE WITNESS: APRIL OF '95. THE 17TH OF APRIL,
22 1995.
23 Q. (BY MR. STIRBA) AND WHAT FINDINGS WERE MADE WITH
24 RESPECT TO THAT E.K.G.?
25 A. WELL, IT'S ABNORMAL AGAIN. THERE'S EVIDENCE OF THE
3345
1 INFERIOR INFARCT. THERE'S VOLTAGE CRITERIA FOR L.V.H.,
2 ALTHOUGH HERE IT SAYS MAY BE NORMAL VARIANCE. INTERESTINGLY
3 ENOUGH, THERE IS T WAVE ABNORMALITIES THAT ARE CONSISTENT
4 WITH WHAT WE CALL LATERAL ISCHEMIA.
5 Q. AND WHAT IS THAT?
6 A. THE LATERAL PORTION OF THE HEART IS THE SIDE OF THE
7 HEART, IF YOU WILL, AS OPPOSED TO THE INFERIOR PORTION,
8 BEING THE BOTTOM. ISCHEMIA MEANS OXYGEN DEPRIVATION. WHEN
9 THE HEART ISN'T GETTING SUFFICIENT OXYGEN THROUGH THE
10 CORONARY ARTERIES, IT BECOMES ISCHEMIC AND THAT'S REFLECTED
11 IN E.K.G. CHANGES. THOSE IN FACT ARE PRESENT HERE. THE
12 LATERAL LEADS, WHICH ARE V5 AND V6 AND A.V.L., REPRESENT THE
13 LATERAL PORTION OF THE HEART.
14 THE T WAVES THERE ARE UPSIDE DOWN, FLIPPED. WHEN YOU
15 SEE UPSIDE DOWN T WAVES THERE, THOSE INDICATE THAT THERE IS
16 LIKELY ISCHEMIA IN THAT AREA, POSSIBLY EVEN AN ACUTE
17 INFARCTION GOING ON. THOSE ARE OF GREAT CONCERN.
18 Q. WAS THIS REPORT SIGNIFICANT TO YOU FOR PURPOSE OF YOUR
19 OPINION?
20 A. YES.
21 Q. AND WHY IS THAT?
22 A. WELL, IT INDICATES THAT IN ADDITION TO THE INFERIOR
23 PORTION OF THE HEART, WHICH WAS DAMAGED AND DISEASED BY A
24 PREVIOUS HEART ATTACK AND TO WHICH THERE WASN'T ADEQUATE
25 BLOOD SUPPLY, IT INDICATES THAT YET ANOTHER PORTION OF THE
3346
1 HEART, THE LATERAL PORTION, WASN'T GETTING ADEQUATE BLOOD.
2 INADEQUATE ENOUGH TO SHOW THAT THERE WAS ISCHEMIA AND E.K.G.
3 CHANGES LATERALLY. THERE'S ONLY SO MANY PARTS OF THE HEART
4 AND TWO OF THE MAJOR PARTS WEREN'T GETTING BLOOD.
5 Q. DID DR. GREY MAKE ANY FINDINGS IN HIS AUTOPSY CONCERNING
6 THE STATUS OF MR. ALLDREDGE'S CARDIAC SYSTEM?
7 A. HE DID.
8 Q. AND DO YOU RECALL WHAT THOSE FINDINGS WERE?
9 A. I WOULD PREFER TO LOOK BRIEFLY AT A COPY OF THE AUTOPSY
10 REPORT, BUT MY RECOLLECTION IS THAT THERE WAS EVIDENCE OF
11 NARROWING OF THE CORONARY ARTERIES.
12 Q. AND WOULD THE FINDINGS THAT HE MADE BE CONSISTENT WITH
13 YOUR OPINION IN THIS CASE?
14 A. YES.
15 Q. AND TELL US, PLEASE, HOW SO?
16 A. WELL, IT ALL GOES TOGETHER. WHAT HAPPENS IS THAT THE
17 CORONARY ARTERIES BASICALLY ARE LIKE A PIPE. THE NARROWER
18 AND MORE OBSTRUCTED THEY GET THE LESS BLOOD GETS TO THE
19 OTHER END OF THE PIPE. THAT'S WHAT ULTIMATELY CAUSES HEART
20 ATTACKS AND OTHER CARDIAC PROBLEMS, HEART FAILURE, WHATEVER.
21 Q. NOW, I WANT TO DIRECT YOUR ATTENTION TO SOME ADDITIONAL
22 MATERIALS IN THE SECTION DEALING WITH MR. ALLDREDGE. IF YOU
23 COULD FLIP TWO OR THREE PAGES TO A DOCUMENT THAT HAS A
24 NUMBER DOWN AT THE BOTTOM C.U.N.N. 35. IT'S AFTER DR.
25 CUNNINGHAM -- THERE'S SOME ENTRIES FROM DR. CUNNINGHAM'S
3347
1 OFFICE. THERE'S ONE ON JANUARY 4TH OF '96, A REPORT BY HIM.
2 THEN THERE'S ANOTHER REPORT -- A DOCUMENT AFTER THAT.
3 A. HERE WE GO. C.U.N.N. 35?
4 Q. YES.
5 A. I SEE IT.
6 Q. DO YOU RECALL REVIEWING THAT DOCUMENT?
7 A. I DID.
8 Q. AND WHAT IS THAT DOCUMENT?
9 A. THIS DOCUMENT IS A REPORT ON A GLYCOSYLATE. HERE THEY
10 CALL IT GLYCATED HEMOGLOBIN. THE CORRECT TERM IS
11 GLYCOSYLATED. THE GLYCOSYLATED HEMOGLOBIN IS A TEST THAT
12 MEASURES THE DEGREE OF BLOOD SUGAR CONTROL THAT WAS GOING ON
13 IN THE PATIENT OVER A MORE EXTENDED PERIOD OF TIME PRIOR TO
14 THE TEST BEING DONE. SO, FOR INSTANCE, IT WILL REPRESENT AN
15 AVERAGE BLOOD SUGAR DIABETES CONTROL FOR 60 OR 90 DAYS,
16 AVERAGE, PRIOR TO THE REPORT BEING DONE.
17 Q. DID THE REPORT DATA CONTAINED IN THIS DOCUMENT HAVE
18 RELEVANCE TO YOUR OPINION IN THIS CASE CONCERNING MR.
19 ALLDREDGE?
20 A. IT DID.
21 Q. AND WOULD YOU TELL US, PLEASE, HOW IT DID?
22 A. HIS GLYCOSYLATED HEMOGLOBIN WAS 12.4. THAT INDICATES,
23 AS YOU CAN SEE IN THE CONTROL RANGE THAT IS EXPRESSED
24 UNDERNEATH THE TEST, THAT THIS REPRESENTS POOR CONTROL. SO
25 WHAT IT MEANS IS THAT FOR THE 60 OR 90 DAYS PRIOR TO THIS
3348
1 TEST BEING DONE ON JANUARY 4TH, 1996, THIS GENTLEMAN'S
2 DIABETES WAS UNDER VERY POOR CONTROL.
3 Q. AND WHAT EFFECT WOULD THAT HAVE HAD ON HIM?
4 A. IT'S JUST SIMPLY GOING TO EXACERBATE OR MAKE WORSE THE
5 COMBINED EFFECTS OF ALL OF HIS OTHER NUMEROUS MEDICAL
6 PROBLEMS AND CONTRIBUTE TO HIS RISK OF DEMISE.
7 Q. AFTER THAT THERE'S AN ENTRY BY DR. CUNNINGHAM DATED
8 JANUARY 8 OF 1996. THEN AFTER THAT THERE ARE A SERIES OF
9 SOME NURSING HOME RECORDS AND THEY APPEAR TO BE NURSE'S
10 NOTES. DO YOU SEE THAT?
11 A. YES.
12 Q. YOU'VE HAD A CHANCE TO REVIEW THESE, HAVE YOU NOT?
13 A. YES.
14 Q. AND WHY DID YOU REVIEW THESE AND WHAT SIGNIFICANCE DO
15 THESE HAVE, IF ANYTHING, TO YOUR OPINION AS TO HIS CAUSE OF
16 DEATH FROM STROKE?
17 A. WELL, THIS GIVES -- THESE NOTES GIVE ME AN IDEA OF WHAT
18 HIS CLINICAL CONDITION WAS DURING THE TIME PERIOD
19 IMMEDIATELY PRECEDING HIS HOSPITALIZATION AND DEMISE.
20 Q. DO YOU RECALL WHAT THEY REFLECT THAT IS SIGNIFICANT TO
21 YOU FOR PURPOSE OF YOUR OPINION?
22 A. WELL, THEY REFLECT A NUMBER OF THINGS. ONE THING THEY
23 REFLECT IS THAT HIS DEMENTIA WAS RATHER SEVERE. IT APPEARS
24 THAT HE SUFFERED -- HE WAS SUFFERING PROBLEMS WITH HIS
25 BALANCE AND WITH HIS MENTAL STATUS OVER THIS TIME PERIOD.
3349
1 HE HAD MULTIPLE EPISODES WHERE HE HAD FALLEN, WAS FOUND ON
2 THE FLOOR OF THE ROOM, SO ON AND SO FORTH. THESE APPEAR TO
3 BE -- TO REPRESENT A CHANGE IN HIS NEUROLOGIC STATUS FROM
4 PREVIOUSLY AND, I THINK, ARE CONSISTENT WITH THE NOTION THAT
5 HE WAS SUFFERING CEREBRAL VASCULAR INSUFFICIENCY. IN OTHER
6 WORDS, HE WASN'T GETTING ENOUGH BLOOD TO HIS BRAIN AND HE
7 WAS -- HE HAD A STROKE THAT WAS IMPENDING.
8 Q. LET ME DIRECT YOUR ATTENTION TO -- IT HAS AT THE BOTTOM
9 N.H. 00187, WHICH IS TOWARDS THE END. IT'S A DATE OF
10 1/4/96.
11 A. OKAY.
12 Q. DO YOU SEE THAT NURSE'S NOTE ENTRY FROM THE NURSING HOME
13 ON THAT DATE?
14 A. YES.
15 Q. SPECIFICALLY, IF YOU'LL DIRECT YOUR ATTENTION TO THE
16 BOTTOM, AT 2130 HOURS, CAN YOU READ THAT?
17 A. YES.
18 Q. IT SAYS?
19 A. "FOUND ON FLOOR IN ROOM. ONE HALF SIDE RAIL.
20 COMPLAINING OF PAIN. HIT HEAD. ALSO INCREASING ATAXIA ON
21 THE RIGHT. SLURRED SPEECH." I CAN'T READ THE NEXT WORD.
22 Q. IT SAYS SOMETHING IN ERROR AND THEN THEY HAVE HIS
23 VITALS, IS THAT RIGHT?
24 A. CORRECT.
25 Q. I NOTICE IT LOOKS LIKE THE RESPIRATION RATE IS 16?
3350
1 A. YES.
2 Q. IS THERE A SIGNIFICANCE TO YOU, FOR PURPOSE OF YOUR
3 OPINION, THAT THE NURSE CHARTED ATAXIA?
4 A. YES.
5 Q. WHAT IS ATAXIA?
6 A. ATAXIA MEANS THAT THE PATIENT'S ABILITY TO SENSE THEIR
7 BALANCE, WHERE THEY ARE IN SPACE, IS ABNORMAL. IT BASICALLY
8 MEANS THAT THEY'RE SUFFERING LACK OF COORDINATION AND ARE
9 STUMBLING ABOUT. THEY CAN'T REALLY TELL WHERE THEY ARE WITH
10 RESPECT TO THE GROUND.
11 Q. IS THAT CONSISTENT WITH ANYTHING THAT YOU BELIEVE
12 MEDICALLY MR. ALLDREDGE WAS SUFFERING FROM WHEN HE WAS
13 ADMITTED TO THE HOSPITAL?
14 A. IT'S CONSISTENT WITH NOT -- IT'S CONSISTENT WITH AN
15 IMPENDING STROKE.
16 Q. AND THEN ALSO IT SAYS -- IT LOOKS LIKE ATAXIA RIGHT.
17 THERE'S THAT R?
18 A. YES.
19 Q. AND THEN THE NURSE CHARTS SLURRED SPEECH. DO YOU SEE
20 THAT?
21 A. YES.
22 Q. WHAT DOES THAT SIGNIFY?
23 A. IT SIGNIFIES THAT HIS SPEECH HAD BEEN ADVERSELY AFFECTED
24 AND I THINK THAT THIS IS -- THESE TWO FINDINGS FIT HAND IN
25 GLOVE WITH THE SUSPICION THAT HE'D HAD A STROKE ON THE LEFT
3351
1 SIDE OF HIS BRAIN IN THE OCCIPUT. THE LEFT SIDE OF THE
2 BRAIN IS WHERE IT CONTROLS LANGUAGE AND SO WOULD RELATE TO
3 THE SLURRED SPEECH. THE LEFT SIDE OF THE BRAIN RELATES TO
4 MOVEMENT. THE BACK OF THE BRAIN HELPS CONTROL BALANCE. SO,
5 I MEAN, THERE'S A DIRECT CLINICAL CORRELATION BETWEEN THESE
6 RIGHT SIDED -- THE RIGHT SIDE MOTOR FINDINGS AND THE SPEECH
7 AND A STROKE ON THE LEFT SIDE OF THE BRAIN.
8 Q. NOW, IF YOU COULD TURN TO THE NEXT SECTION, WHICH IS
9 PATIENT LYDIA SMITH, PLEASE.
10 A. OKAY.
11 Q. DO YOU HAVE THAT IN FRONT OF YOU?
12 A. YES.
13 Q. DO YOU HAVE AN OPINION, BASED UPON YOUR REVIEW OF HER
14 RECORDS, AS TO PATIENT LYDIA SMITH'S CAUSE OF DEATH?
15 A. I DO.
16 Q. AND WHAT IS YOUR OPINION?
17 A. I BELIEVE THAT MRS. SMITH DIED AS A RESULT OF A RECENT
18 STROKE THAT OCCURRED IN NOVEMBER OF '95. THE SEQUELLA OF
19 THAT PROBLEM, SUPERIMPOSED ON LONG-STANDING CARDIAC
20 PROBLEMS, ULTIMATELY RESULTED IN HER INABILITY TO TAKE
21 FLUIDS, WHICH LED TO DEHYDRATION AND DEATH.
22 Q. DO YOU BELIEVE THAT MORPHINE CONTRIBUTED TO OR CAUSED
23 HER DEATH?
24 A. NO.
25 Q. NOW, TURN TO THE FIRST ENTRY, WHICH IS MED 179, WHICH IS
3352
1 A PROGRESS NOTE. SPECIFICALLY, THERE'S A WEEKLY R.N.
2 ADVOCATE NOTE DATED 1/8 OF '96. DO YOU SEE THAT?
3 A. I DO, AT THE BOTTOM OF THE PAGE.
4 Q. AND AS YOU READ THAT, IS THAT CONSISTENT WITH YOUR
5 FINDINGS BASED ON YOUR REVIEW OF THE RECORDS?
6 A. CERTAINLY. IT SAYS SHE'S UNABLE TO SWALLOW FOOD OR
7 MEDICATION. SHE'S NOT VISUALLY RESPONSIVE TO HER
8 ENVIRONMENT. SHE DEMONSTRATES REGRESSED REFLEXES. THAT'S
9 ALL CONSISTENT WITH WHAT I JUST TESTIFIED TO.
10 Q. IF YOU WOULD TURN NOW TO AN E.K.G. THERE'S FIRST A
11 CHEST X-RAY ON 279. LET ME ASK YOU ABOUT 279. IT IS A
12 REPORT OF AN X-RAY THAT APPARENTLY WAS DONE ON HER ADMISSION
13 ON 12/21/95. DO YOU SEE THOSE FINDINGS?
14 A. YES.
15 Q. WERE THOSE FINDINGS SIGNIFICANT TO YOU FOR PURPOSES OF
16 THE OPINION YOU JUST RENDERED?
17 A. YES.
18 Q. AND TELL US, PLEASE, WHY?
19 A. WELL, SHE HAD DISEASE BOTH IN HER HEART AND IN HER
20 LUNGS. SHE HAD CLASSIC FINDINGS OF WHAT WE CALL C.O.P.D.,
21 CHRONIC OBSTRUCTIVE PULMONARY DISEASE, IN THE FORM OF
22 HYPEREXPANSION OF THE CHEST. C.O.P.D. IS BRONCHITIS AND
23 EMPHYSEMA. SHE HAD ABNORMAL LUNGS.
24 IN ADDITION, SHE HAD A PROSTHETIC HEART VALUE. SHE'D
25 HAD OPEN HEART SURGERY AND HAD A MECHANICAL VALVE IN THE
3353
1 HEART. I THINK THAT IT'S VERY LIKELY THAT THAT MECHANICAL
2 VALVE PLAYED A ROLE IN THE STROKE THAT SHE SUFFERED, THE BIG
3 STROKE SHE SUFFERED PREVIOUSLY. CLOTS FORM ON MECHANICAL
4 VALVES AND WHEN THEY BREAK OFF, IF THEY GO UP TO THE HEAD,
5 THEY CAUSE STROKES.
6 Q. IS THE VALVE REPLACEMENT DIAGNOSTIC OF ANYTHING IN TERMS
7 OF HEART DISEASE?
8 A. YES. IT'S DIAGNOSTIC THAT THE VALVE SHE WAS BORN WITH
9 WAS NO GOOD AND HAD TO BE REPLACED.
10 Q. NOW, IF YOU COULD TURN TO THE NEXT PAGE, MED 730. THERE
11 IS ANOTHER REPORT THERE, ANOTHER E.K.G. WOULD YOU TELL US,
12 PLEASE, WHAT FINDINGS ARE REPORTED THERE CONCERNING THE
13 CONDITION OF PATIENT LYDIA SMITH'S HEART?
14 A. YES. ONCE AGAIN THERE'S MULTIPLE ABNORMALITIES. SHE
15 HAD A CONDITION CALLED ATRIAL FIBRILLATION. WHAT THAT MEANS
16 IS THAT THE NORMAL PACEMAKER IS NOT CONTROLLING THE HEART
17 ANYMORE. THE ATRIA, WHERE THE TOP OF THE HEART IS, WHERE
18 THE ELECTRICAL IMPULSE STARTS, INSTEAD OF THOSE -- THE ATRIA
19 BEATING WITH EACH HEART BEAT THEY'RE WHAT IS CALLED
20 FIBRILLATING. SO THE MUSCLE IS JUST KIND OF FLUTTERING.
21 IT'S ABNORMAL AND IT PREDISPOSES PEOPLE SPECIFICALLY TO
22 STROKES.
23 SHE ALSO HAS P.V.C.S. THAT MEANS PREMATURE VENTRICULAR
24 CONTRACTIONS. WHAT THAT MEANS IS THAT THE VENTRICLE, WHERE
25 ALL THE ELECTRICITY ENDS UP, TAKES IT UPON ITSELF TO TAKE
3354
1 OVER THE HEART AND BEAT. P.V.C.S ARE A WELL KNOWN CAUSE OF
2 SUDDEN DEATH.
3 SHE HAS LEFT AXIS DEVIATION, WHICH IS -- WHICH MEANS
4 THAT THE SUM OF THE ELECTRICAL IMPULSES IN THE HEART HAVE
5 BEEN SHIFTED IN AN ABNORMAL FASHION. SHE HAS LEFT
6 VENTRICULAR HYPERTROPHY, WHICH MEANS THAT THE MUSCLE IN HER
7 PUMP IS THICKENED AND DISEASED.
8 SHE HAS EVIDENCE THAT SHE'S HAD A HEART ATTACK IN THE
9 SEPTAL AREA, THE AREA BETWEEN THE VENTRICLES. WHERE IT
10 SAYS, "CAN'T RULE OUT SEPTAL INFARCT, AGE UNDETERMINED," MY
11 INTERPRETATION OF THAT WAS THAT SHE'D HAD A SEPTAL INFARCT
12 AT SOME POINT IN TIME.
13 Q. IS THERE A RELATIONSHIP BETWEEN THE FINDING OF ATRIAL
14 FIBRILLATION AND ABNORMAL ARRHYTHMIA?
15 A. ATRIAL FIBRILLATION IS AN ABNORMAL ARRHYTHMIA BY
16 DEFINITION.
17 Q. OKAY. SO I GUESS THERE IS A RELATIONSHIP?
18 A. YES.
19 THE COURT: HOW MUCH LONGER DO YOU THINK YOU'LL BE
20 WITH THIS WITNESS?
21 MR. STIRBA: I PROBABLY HAVE ANOTHER FIVE MINUTES,
22 YOUR HONOR.
23 THE COURT: OKAY. LET'S GO THAT FAR AND THEN STOP.
24 MR. STIRBA: THAT WOULD BE FINE.
25 Q. (BY MR. STIRBA) I WANT TO DIRECT YOUR ATTENTION NOW TO
3355
1 SOME MEDICAL HISTORY, SPECIFICALLY TURN TO -- ACTUALLY, IT
2 MAY NOT BE IN THE MEDICAL HISTORY. TURN TO MED 823, WHICH
3 IS FIVE OR SIX PAGES DOWN THE ROAD. IT'S A DIAGNOSTIC FORM
4 FROM THE HOSPITAL.
5 A. I SEE IT.
6 Q. IT LISTS THERE A NUMBER OF DIAGNOSES. ARE THESE
7 CONSISTENT WITH YOUR FINDINGS AND YOUR OPINION BASED UPON
8 THE RECORD?
9 A. YES. I MEAN, ON TOP OF EVERYTHING ELSE IT ADDS A FEW
10 THINGS THAT I HAVEN'T GONE INTO, BUT IT CERTAINLY IS
11 CONSISTENT.
12 Q. FOR EXAMPLE, THERE'S A SECONDARY DIAGNOSIS OF CONGESTIVE
13 HEART FAILURE, DO YOU SEE THAT?
14 A. YES.
15 Q. DO YOU AGREE WITH THAT?
16 A. YES.
17 Q. AND THEN WE TALKED ABOUT THE ATRIAL FIBRILLATION. HOW
18 ABOUT CORONARY ARTHROSCLEROSIS OF NATIVE CORONARY VESSEL, DO
19 YOU SEE THAT?
20 A. YES.
21 Q. DO YOU AGREE WITH THAT?
22 A. YES. THAT WOULD HAVE BEEN THE CAUSE OF THE HEART
23 ATTACKS THAT I TESTIFIED REGARDING.
24 Q. IT ALSO SAYS ABNORMAL LOSS OF WEIGHT. DO YOU SEE THAT?
25 A. YES.
3356
1 Q. DO YOU RECALL IN THE RECORDS THAT THERE WAS SUCH A
2 FINDING?
3 A. YES.
4 Q. IS THAT SIGNIFICANT TO YOU FOR PURPOSES OF YOUR OPINION?
5 A. IT IS.
6 Q. AND TELL THE LADIES AND GENTLEMEN WHY THAT IS?
7 A. IN A GERIATRIC PATIENT LOSS OF WEIGHT, THAT ISN'T
8 INTENDED FROM DIETING OR WHATEVER, INDICATES SOMETHING WE
9 CALL FAILURE TO THRIVE. BASICALLY IT MEANS THAT THE ORGANS,
10 THE SUM TOTAL OF THE FUNCTION OF ALL THE BODILY ORGANS,
11 ISN'T SUFFICIENT TO SUSTAIN LIFE ONGOING, BASICALLY. IT
12 MEANS THAT THINGS ARE SHUTTING DOWN. IT RESULTS IN
13 NUTRITIONAL AND CHEMICAL PROBLEMS AND MAKES THE INDIVIDUAL
14 THAT MUCH MORE AT RISK FOR ANY OF THE VARIOUS ACUTE MEDICAL
15 CATASTROPHES THAT WE'VE TALKED ABOUT TODAY.
16 Q. AND THEN IT ALSO TALKS ABOUT LATE EFFECTS OF CEREBRAL
17 VASCULAR DISEASE. WOULD THAT RELATE TO THE STROKE?
18 A. AND THE SEQUELAE THEREOF. ONCE THE STROKE OCCURS AND
19 THE BRAIN IS DAMAGED, IT DOESN'T GET BETTER.
20 Q. CAN YOU EXPLAIN TO US WHAT YOU MEAN BY SEQUELAE?
21 A. I MEAN I GUESS COMPLICATIONS, RESULTS OF. FOR INSTANCE,
22 IN A PREVIOUS PATIENT WHO HAD A STROKE THERE WAS A LEFT
23 HEMIPARESIS. THAT PART OF THE BODY WAS PARALYZED. THAT'S A
24 SEQUELA, A RESULT OF THE STROKE. SHE'D HAD -- THIS PATIENT
25 HAD HAD PART OF HER BRAIN DAMAGED BY THE STROKE AND THAT
3357
1 PART OF THE BRAIN WASN'T FUNCTIONING NORMALLY ANYMORE.
2 Q. AND FINALLY, UNDER SECONDARY DIAGNOSES, THEY HAVE THE
3 WORD CARDIOMEGALY?
4 A. YES.
5 Q. WHAT DOES THAT MEAN?
6 A. THAT THE HEART IS ENLARGED.
7 Q. IS THAT SIGNIFICANT?
8 A. YES. IT'S CONSISTENT WITH -- IT ACTUALLY REALLY GOES
9 WITH THE DIAGNOSIS ON TOP OF THE CONGESTIVE HEART FAILURE
10 AND THE LEFT VENTRICULAR HYPERTROPHY THAT WAS NOTED ON THE
11 E.K.G. BASICALLY WHAT IT MEANS IS THAT THE PUMP HAS BEEN
12 FAILING. IT'S BIGGER BECAUSE IT CAN'T HANDLE THE VOLUME.
13 THE MUSCLE WALL HAS BEEN THICKENED AND DISEASED. IT'S ALL
14 BAD.
15 Q. IF YOU WOULD TURN TO THE NEXT PAGE, PLEASE. IT HAS A
16 NUMBER OF L.H. 279, A DISCHARGE SUMMARY FROM LAKEVIEW
17 HOSPITAL. DO YOU SEE THAT?
18 A. YES.
19 Q. AND IS THAT PARTICULAR DOCUMENT AND THE RECORDATION
20 THERE SIGNIFICANT TO YOU?
21 A. YES, IT IS.
22 Q. AND TELL US, PLEASE, HOW SO?
23 A. THIS DISCHARGE SUMMARY RELATES TO THE HOSPITALIZATION IN
24 NOVEMBER OF '95 FOLLOWING THE PATIENT'S STROKE. UNDER THE
25 DISCHARGE DIAGNOSIS IT TALKS ABOUT THE HEMORRHAGIC PARIETAL
3358
1 STROKE. PARIETAL IS ANOTHER PART OF THE BRAIN THAT WE
2 HAVEN'T TALKED ABOUT.
3 BUT OF INTEREST TO ME HERE WAS THE SECTION IN THE
4 MIDDLE. IF YOU LOOK AT THE PART WHERE IT SAYS HOSPITAL
5 COURSE, THIS PATIENT HAD -- THIS PATIENT WAS REALLY BETWEEN
6 A ROCK AND A HARD PLACE. SHE HAD ATRIAL FIBRILLATION AND A
7 PROSTHETIC VALVE, BOTH OF WHICH CAUSED GREAT RISK FOR
8 STROKES. CLOTS WILL DEVELOP IN THE ATRIUM AND ON THE VALVE.
9 THE TREATMENT FOR THAT IS ANTICOAGULATION, OR BLOOD
10 THINNING. IN FACT, SHE HAD BEEN TREATING WITH BLOOD
11 THINNERS FOR THOSE INDICATIONS.
12 UNFORTUNATELY FOR THIS PATIENT, THE STROKE THAT SHE
13 SUFFERED WAS A HEMORRHAGIC STROKE. IN OTHER WORDS, RATHER
14 THAN THE ARTERY JUST BEING BLOCKED, THERE WAS BLEEDING INTO
15 THE BRAIN IN THE AREA THAT WAS AFFECTED BY THE STROKE. WHEN
16 ONE HAS A HEMORRHAGIC STROKE, IT MEANS THAT ANTICOAGULATION
17 IS CONTRAINDICATED. IN OTHER WORDS, IF YOU KEEP GIVING
18 ANTICOAGULANTS YOU'LL CONTINUE TO BLEED INTO THE BRAIN AND
19 FOR SURE DIE.
20 SO NOW YOU'VE GOT A SITUATION WHERE YOU ARE NO LONGER
21 ABLE TO TREAT THE UNDERLYING CONDITION THAT'S GOING TO
22 PREDISPOSE YOU TO ADDITIONAL STROKES BECAUSE OF THE RISK OF
23 BLEEDING FURTHER FROM THE STROKE YOU JUST HAD. I MEAN, THIS
24 IS A CLASSICAL SITUATION THAT USUALLY SPELLS DOOM.
25 IN FACT, IT APPEARS TO ME THAT DR. SOUTHWORTH WAS
3359
1 CONCERNED THAT SHE WAS GOING TO DIE HERE. HE SAYS, ON HER
2 SECOND HOSPITAL DAY, SHE BECAME FAIRLY OBTUNDED AND HAD SOME
3 CHEYNE-STOKES BREATHING. THAT'S AN ABNORMAL BREATHING
4 PATTERN THAT OCCURS WITH STROKES. THEN HE SAYS, HOWEVER,
5 OVER THE NEXT TWO DAYS SHE GRADUALLY BECAME MORE ALERT.
6 SO, I MEAN, LOOKING AT THIS, MY IMPRESSION IS THAT SHE
7 WAS LITERALLY ON DEATH'S DOOR IN NOVEMBER OF '95 WHEN THIS
8 STROKE OCCURRED AND THAT MIRACULOUSLY SHE PULLED OUT OF IT
9 AND WENT ON TO SURVIVE OVER ANOTHER MONTH.
10 MR. STIRBA: OKAY. THANK YOU. THAT'S ALL I HAVE,
11 YOUR HONOR.
12 THE COURT: LADIES AND GENTLEMEN, LET'S TAKE A
13 BREAK AT THIS POINT. WE'LL BREAK UNTIL 3:00 P.M. DURING
14 THAT TIME IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR
15 WITH ANYONE ELSE, OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY
16 PERSON ON THE SUBJECT OF THIS TRIAL. IT'S YOUR DUTY NOT TO
17 FORM OR EXPRESS ANY OPINION UNTIL THE CASE IS FINALLY
18 SUBMITTED TO YOU. IF YOU'LL COME BACK AT 3:00 P.M.
19 (SHORT RECESS.)
20 THE COURT: BEFORE WE GET STARTED, LADIES AND
21 GENTLEMEN, I'D LIKE TO ASK YOU IF TOMORROW, BEING FRIDAY, IF
22 YOU WANT TO START AT EIGHT WITH THE IDEA OF BEING DONE
23 EARLIER? IS THAT SOMETHING -- IT'S ALL RIGHT WITH THE
24 ATTORNEYS. SO IF THAT'S OKAY WITH YOU, THEN WE'LL LEAVE
25 TODAY AND COME BACK AT EIGHT TOMORROW MORNING. HOW MUCH
3360
1 EARLIER -- NO LATER THAN 4:30, DEPENDING WHERE WE GET WITH
2 WITNESSES. WE'LL SEE. THEN, AS I MENTIONED TO YOU BEFORE,
3 YOU'LL NOT BE HERE EITHER JULY 3RD OR JULY 4TH.
4 OKAY. WERE YOU DONE, MR. STIRBA?
5 MR. STIRBA: I WAS.
6 THE COURT: MR. MAJOR, YOU MAY CROSS-EXAMINE.
7 CROSS-EXAMINATION
8 BY MR. MAJOR:
9 Q. DOCTOR, I THINK EARLIER ON DIRECT EXAMINATION YOU
10 TESTIFIED THAT YOU'RE BASICALLY AN EMERGENCY ROOM PHYSICIAN;
11 IS THAT CORRECT?
12 A. THAT'S CORRECT.
13 Q. AND YOU WORKED AS AN EMERGENCY ROOM PHYSICIAN UP UNTIL
14 1994?
15 A. NO. I'M CONTINUING TO WORK AS AN EMERGENCY PHYSICIAN.
16 Q. WHERE DO YOU WORK AT?
17 A. ST. MARK'S HOSPITAL.
18 Q. AND YOU WORK APPROXIMATELY TWO DAYS A WEEK AT THAT?
19 A. SOMETHING LIKE THAT.
20 Q. WHEN WAS THE LAST TIME YOU WORKED EMERGENCY ROOM AT ST.
21 MARK'S?
22 A. IT'S BEEN A FEW MONTHS.
23 Q. AND YOU ALSO INDICATED THAT YOU HAD A SECOND TYPE OF
24 PRACTICE, I GUESS?
25 A. YES.
3361
1 Q. AND THAT DEALT WITH ACCIDENT VICTIMS?
2 A. CORRECT.
3 Q. AND WHAT DOES THAT INVOLVE?
4 A. I SEE PATIENTS IN MY PRIVATE OFFICE TWO DAYS A WEEK WHO
5 HAVE BEEN INJURED IN ACCIDENTS, MOSTLY MOTOR VEHICLE
6 ACCIDENTS. I MAKE DIAGNOSES AND SUPERVISE THEIR
7 REHABILITATION.
8 Q. AND SO FROM AT LEAST 1994 UNTIL THE PRESENT YOU'VE
9 WORKED APPROXIMATELY TWO DAYS A WEEK IN EMERGENCY ROOM, IS
10 THAT CORRECT?
11 A. IT VARIES. MORE THAN THAT IN PRIOR YEARS; LESS IN THE
12 LAST YEAR OR SO.
13 Q. OKAY. AND AS AN E.R. PHYSICIAN, OR EMERGENCY ROOM
14 PHYSICIAN, YOU TREAT PEOPLE WITH SUDDEN ILLNESSES OR
15 ACCIDENTS, CORRECT?
16 A. CORRECT.
17 Q. AND THE BASIC PURPOSE OF THE EMERGENCY ROOM IS TO TREAT
18 THESE PEOPLE, GET THEM STABILIZED, AND THEN MOVE THEM TO
19 ANOTHER AREA OF THE HOSPITAL?
20 A. OR DISCHARGE THEM TO HOME, CORRECT.
21 Q. IF YOU'VE SOLVED THEIR PROBLEM?
22 A. IF THEIR CONDITION ALLOWS, CORRECT.
23 Q. OKAY. AS AN EMERGENCY ROOM PHYSICIAN, THEN, YOU DO NOT
24 HAVE ANY EXTENSIVE EXPERIENCE IN THE ONGOING CARE OF A
25 PARTICULAR PATIENT?
3362
1 A. I DON'T KNOW THAT I WOULD SAY THAT, IN THAT MOST OF THE
2 PATIENTS THAT I SEE, AT LEAST THE MEDICAL PATIENTS, A LARGE
3 PART OF THE CASE INVOLVES ANALYSIS OF THEIR ONGOING CARE BY
4 OTHERS.
5 Q. BUT YOU DON'T YOURSELF, ON A DAILY BASIS, TREAT
6 PATIENTS, THE SAME PATIENT DAY AFTER DAY?
7 A. THE SAME PATIENT DAY AFTER DAY, THAT'S CORRECT.
8 Q. AND YOU WOULD NOT HAVE ANY REAL EXPERIENCE IN TREATING
9 OR HAVE LONG-TERM CARE WITH PATIENTS, IS THAT CORRECT?
10 A. AS I SAID, THE ACCIDENT VICTIMS I SEE I DO PROVIDE
11 LONG-TERM CARE. I HAVE PATIENTS THAT I SEE IN MY OFFICE
12 THAT I'VE CARED FOR FOR THREE OR FOUR YEARS RUNNING.
13 Q. OKAY. YOU ARE NOT BOARD CERTIFIED IN GERIATRIC CARE,
14 ARE YOU?
15 A. NO.
16 Q. YOU'RE NOT BOARD CERTIFIED IN PHARMACOLOGY?
17 A. NO, I'M NOT.
18 Q. YOU'RE NOT BOARD CERTIFIED AS A CARDIAC EXPERT?
19 A. CORRECT.
20 Q. YOU'RE NOT BOARD CERTIFIED AS A PSYCHIATRIST?
21 A. CORRECT.
22 Q. AND YOU'RE NOT BOARD CERTIFIED -- LET ME ASK YOU THIS.
23 OTHER THAN DEALING WITH ACCIDENT VICTIMS, DO YOU HAVE ANY
24 TRAINING OR EXPERIENCE IN PAIN MANAGEMENT?
25 A. WELL, I'VE HAD QUITE A BIT OF TRAINING AND EXPERIENCE IN
3363
1 PAIN MANAGEMENT IN MY VARIOUS MEDICAL TRAININGS. AND MY
2 PRACTICE, BASICALLY, INVOLVES TREATING PATIENTS WHO HAVE
3 CHRONIC PAIN.
4 Q. OKAY. YOU HAVE NO REAL EXPERIENCE IN DEALING ON A
5 LONG-TERM CARE BASIS WITH THE ELDERLY?
6 A. SOME OF MY PATIENTS THAT I FOLLOW ARE ELDERLY.
7 Q. AND YOU HAVE NO EXPERIENCE, AS FAR AS THE LONG-TERM CARE
8 OF PATIENTS, DEALING WITH DEMENTIA OR DELIRIUM?
9 A. AGAIN, SOME OF THE PATIENTS I'VE SEEN REPEATEDLY SUFFER
10 THOSE PROBLEMS.
11 Q. BUT YOU'RE NOT SPECIFICALLY THERE TO TREAT THE DEMENTIA
12 OR DELIRIUM?
13 A. WELL, CERTAINLY ACUTELY I GET INVOLVED IN THAT, BUT
14 THAT'S NOT THE FOCUS OF WHAT I DO.
15 Q. SO ON A LONG-TERM BASIS YOU'RE NOT DEALING WITH DELIRIUM
16 OR DEMENTIA?
17 A. MY ANSWER IS I GUESS WHAT IT IS.
18 Q. OKAY. NOW, AS A TREATING PHYSICIAN IN THE EMERGENCY
19 ROOM YOU INDICATE THAT YOU DO HAVE SOME EXPERIENCE IN GIVING
20 MORPHINE, IS THAT CORRECT?
21 A. THAT'S CORRECT.
22 Q. SO YOU ARE FAMILIAR WITH THE ASPECTS OF MORPHINE AND ITS
23 SIDE EFFECTS, IS THAT CORRECT?
24 A. THAT'S CORRECT.
25 Q. AND WOULD YOU AGREE THAT MORPHINE IS A SEDATING DRUG?
3364
1 A. YES.
2 Q. AND WOULD YOU ALSO AGREE THAT IT'S A CENTRAL NERVOUS
3 SYSTEM SUPPRESSANT?
4 A. DEPRESSANT.
5 Q. DEPRESSANT?
6 A. YES.
7 Q. OKAY. AND WOULD YOU ALSO AGREE, DOCTOR, THAT MORPHINE
8 CAN ALSO CAUSE HYPOTENSION OR LOW BLOOD PRESSURE?
9 A. THAT'S CORRECT, IT CAN.
10 Q. AND THESE ARE ALL COMPLICATIONS AND PROBLEMS THAT EXIST
11 WITH GIVING MORPHINE?
12 A. THOSE ARE FACTORS TO BE CONSIDERED AS RISKS WHEN ONE
13 CHOOSES TO GIVE MORPHINE. THEY CERTAINLY DON'T ALWAYS OCCUR
14 AND, IN FACT, MOST OF THE TIME DON'T.
15 Q. BUT THOSE ARE FACTORS YOU NEED TO TAKE INTO ACCOUNT?
16 A. CORRECT.
17 Q. AND YOU ALSO TESTIFIED, I BELIEVE, THAT PART OF YOUR
18 PRACTICE IS, WHEN PEOPLE COME IN, YOU TAKE THEIR HISTORY?
19 A. CORRECT.
20 Q. AND WHAT DOES THAT ENTAIL?
21 A. THAT ENTAILS INTERVIEWING THEM, BASICALLY. OR IN CASES
22 WHERE THEY CAN'T COMMUNICATE FOR ONE REASON OR ANOTHER,
23 OBTAINING THE HISTORY FROM A THIRD PARTY AND FINDING OUT THE
24 HISTORY OF THE PRESENT ILLNESS, WHAT HAPPENED TO GET THEM
25 THERE. BASICALLY EVERYTHING YOU CAN ASCERTAIN REGARDING
3365
1 THEIR LONG-TERM HEALTH.
2 Q. AND THAT WOULD ENTAIL WHETHER OR NOT THEY HAVE ANY
3 ALLERGIES, CORRECT?
4 A. CORRECT.
5 Q. AND WOULD ENTAIL WHETHER OR NOT THEY'RE TAKING ANY OTHER
6 MEDICATIONS?
7 A. THOSE ARE PROBABLY THE FIRST TWO THINGS I ASK.
8 Q. AND YOU WOULD ALSO BE INTERESTED IN HEART CONDITIONS,
9 THAT KIND OF THING, BLOOD PRESSURE?
10 A. YES.
11 Q. AND ALL OF THOSE THINGS YOU'RE INTERESTED IN BECAUSE IF
12 YOU'RE GOING TO TREAT THEM THOSE ARE THINGS THAT DETERMINE
13 WHAT YOU DO, CORRECT?
14 A. ABSOLUTELY.
15 Q. AND ALSO BEING AWARE OF THOSE THINGS IS IMPORTANT IF YOU
16 ARE GOING TO TREAT THEM WITH SOME TYPE OF A PAIN MEDICATION?
17 A. THAT'S CORRECT.
18 Q. AND SPECIFICALLY WITH MORPHINE?
19 A. INCLUDING MORPHINE, CORRECT.
20 Q. AND WOULD YOU SAY THAT IT'S MORE IMPORTANT TO HAVE THAT
21 INFORMATION WITH MORPHINE THAN SOME OF THE OTHER DRUGS?
22 A. NOT NECESSARILY. IF YOU DIE OF A PENICILLIN ALLERGY
23 YOU'RE JUST AS DEAD AS FROM ANYTHING ELSE.
24 Q. MORPHINE, BASED ON YOUR UNDERSTANDING AND TRAINING, DOES
25 IT AFFECT RESPIRATION?
3366
1 A. IT CAN.
2 Q. OKAY. MORPHINE WOULD AFFECT -- YOU'VE ALREADY TESTIFIED
3 IT AFFECTS BLOOD PRESSURE. SO SOMEONE WITH A HEART PROBLEM
4 WOULD -- MIGHT BE AFFECTED BY MORPHINE?
5 A. THEY MIGHT.
6 Q. AND SOMEONE WHO HAS MAYBE A HIGH BLOOD PRESSURE PROBLEM
7 WOULD BE AFFECTED BY MORPHINE?
8 A. CORRECT.
9 Q. OR A LOW BLOOD PRESSURE PROBLEM?
10 A. CORRECT.
11 Q. ALL OF THESE THINGS ARE THE TYPE OF THINGS YOU WOULD
12 WANT TO BE ABLE TO ASCERTAIN AS PART OF THE HISTORY, IS THAT
13 CORRECT?
14 A. THAT'S CORRECT.
15 Q. DOCTOR, YOU'VE TESTIFIED, I THINK THE FIRST ONE WE
16 DISCUSSED, IS ELLEN ANDERSON, IS THAT CORRECT?
17 A. THAT'S RIGHT.
18 Q. LET ME ASK YOU SOME QUESTIONS ABOUT ELLEN ANDERSON.
19 A. CERTAINLY.
20 Q. YOU WENT OVER HER PRIOR HISTORY, IS THAT CORRECT?
21 A. YES.
22 Q. AND YOU WERE AWARE THAT PRIOR TO HER COMING TO THE DAVIS
23 NORTH HOSPITAL SHE HAD HAD SOME COMPLAINTS OF PAIN, CORRECT?
24 A. CORRECT.
25 Q. AND THAT PAIN WAS BASED ON HER OSTEOPOROSIS?
3367
1 A. HER OSTEOPOROSIS WAS THE UNDERLYING PROBLEM THAT I
2 BELIEVE CONTRIBUTED TO HER HIP FRACTURE AND SEVERE KYPHOTIC
3 DEFORMITY.
4 Q. NOW, YOU TALK ABOUT A HIP FRACTURE. ARE WE TALKING
5 ABOUT THE HIP REPLACEMENT?
6 A. THE HIP WAS REPLACED BECAUSE IT WAS FRACTURED.
7 Q. OKAY. AND YOU WERE AWARE THAT THAT TOOK PLACE IN JUNE
8 OF 1995?
9 A. THAT'S RIGHT.
10 Q. AND A HIP REPLACEMENT WOULD BE FAIRLY PAINFUL, WOULD IT
11 NOT?
12 A. THE OPERATION ITSELF ISN'T PAINFUL AT ALL BECAUSE YOU'RE
13 ASLEEP.
14 Q. RIGHT. BUT THE AFTER EFFECTS?
15 A. IN SOME PATIENTS, YES. IN OTHERS, SURPRISINGLY LESS SO.
16 Q. SO IT DEPENDS ON THE INDIVIDUAL PATIENT?
17 A. YES.
18 Q. AND YOU'RE AWARE THAT AFTER SHE HAD HER HIP SURGERY,
19 THEY WERE ABLE TO CONTROL THE PAIN WITH LORTAB?
20 A. THEY USED LORTAB TO TREAT THE PAIN, CORRECT.
21 Q. AND YOU DID NOT SEE ANYTHING IN THE RECORDS OF ELLEN
22 ANDERSON, PRIOR TO HER COMING TO DAVIS NORTH, THAT INDICATED
23 THE LORTAB DID NOT TREAT THE PAIN, DID NOT SATISFY THE PAIN?
24 A. NOT THAT I RECALL, THAT'S CORRECT.
25 Q. DID YOU SEE ANYTHING IN THE MEDICAL RECORDS, PRIOR TO
3368
1 HER ARRIVING AT THE DAVIS NORTH HOSPITAL, THAT WOULD
2 INDICATE SHE MAY HAVE HAD PAIN OR WOULD HAVE BEEN IN PAIN?
3 A. YES.
4 Q. AND WHAT WAS THAT?
5 A. SHE HAD ONE OF THE MORE SEVERE KYPHOTIC DEFORMITIES OF
6 THE SPINE THAT I'VE SEEN IN A LONG TIME.
7 Q. OKAY. BUT THAT WOULD HAVE TO BE SOMEWHAT OF A
8 SUBJECTIVE OPINION AS TO WHETHER THAT WOULD CAUSE PAIN,
9 CORRECT?
10 A. I CAN'T IMAGINE -- LOOKING THROUGH HER RECORDS, HER
11 VERTEBRAE WERE CONTINUING TO COLLAPSE AND COMPRESS OVER A
12 MONTH'S TIME PRIOR TO HER ADMISSION. I CAN'T IMAGINE THAT
13 THAT KIND OF DEFORMITY WOULDN'T CAUSE PAIN.
14 Q. OKAY. SO IF THE FAMILY MEMBERS WERE TO TESTIFY THAT
15 THEY HAD DEALT WITH HER ALMOST ON A DAILY BASIS FROM THE
16 TIME OF THE HIP SURGERY UNTIL THE TIME THAT SHE CAME TO THE
17 HOSPITAL AND THEY DID NOT OBSERVE ANY PAIN, WOULD THAT BE
18 INCONSISTENT WITH WHAT YOUR FINDINGS WERE?
19 A. IT'S HARD TO SAY.
20 Q. AND IF IN FACT ONE OF THE FAMILY MEMBERS WAS TO HAVE
21 TESTIFIED THAT ON THE WAY TO THE HOSPITAL SHE HELD ELLEN
22 ANDERSON IN HER ARMS AND ROCKED BACK AND FORTH, WOULD THAT
23 BE INCONSISTENT WITH YOUR OPINION THAT SHE WOULD -- THAT
24 THIS CONDITION WOULD CAUSE PAIN?
25 A. I DON'T THINK IT WOULD BE INCONSISTENT. THE PAIN CAN
3369
1 VARY MARKEDLY FROM HOUR TO HOUR AND DAY TO DAY, DEPENDING
2 UPON MANY DIFFERENT FACTORS. SOME PATIENTS WILL TELL YOU
3 THAT JUST A CHANGE IN THE WEATHER AND A LOT OF COLD WILL
4 INCREASE THE PAIN MARKEDLY.
5 Q. OKAY. AND SO FROM THE RECORD YOU WOULD INDICATE THAT AT
6 THE TIME SHE ARRIVED AT THE HOSPITAL SHE WAS EXPERIENCING
7 PAIN?
8 A. I'M SORRY?
9 Q. AT THE TIME SHE ARRIVED AT THE HOSPITAL WOULD SHE HAVE
10 BEEN EXPERIENCING PAIN?
11 A. I THINK TO SOME DEGREE SHE WOULD.
12 Q. YOU ALSO TESTIFIED ABOUT THE CONDITIONS THAT YOU FOUND
13 IN ELLEN ANDERSON, THE HEART PROBLEMS, THE OSTEOPOROSIS,
14 THOSE TYPES OF SITUATIONS, CORRECT?
15 A. YES.
16 Q. THEY ALL CAME FROM YOUR PERUSAL OF THE RECORDS OF THE
17 REST HOMES AND SO FORTH PRIOR TO COMING INTO THE HOSPITAL,
18 IS THAT CORRECT?
19 A. AS WELL AS ATTENDING THE AUTOPSY AND REVIEWING THE
20 REPORT, THAT'S CORRECT.
21 Q. BUT THE FACT OF THE MATTER IS, DOCTOR, THAT AT THE TIME
22 ELLEN ANDERSON WAS ADMITTED INTO THE HOSPITAL AND THE NURSE
23 CALLED AND TALKED TO DR. WEITZEL, HE WASN'T AWARE OF ANY OF
24 THAT PRIOR HISTORY, WAS HE, BASED ON THE RECORDS YOU'VE
25 SEEN?
3370
1 A. I DON'T KNOW.
2 Q. BUT BASED ON THE RECORD WAS THERE ANY INDICATION THAT HE
3 HAD ANY OF THAT PRIOR INFORMATION?
4 A. I DON'T KNOW.
5 Q. AND BASED ON THAT INFORMATION, YOU DO NOT KNOW WHETHER
6 DR. WEITZEL OBTAINED A HISTORY OF ELLEN ANDERSON?
7 A. THERE WAS CERTAINLY A HISTORY IN THE MEDICAL RECORDS.
8 Q. THERE WAS NO HISTORY?
9 A. THERE WAS.
10 Q. AND WHAT HISTORY WAS THAT?
11 A. (NO ANSWER.)
12 Q. PROBABLY IT'S NOT IN THE EXHIBIT THAT YOU HAVE THERE,
13 DOCTOR.
14 A. OKAY. I'D BE HAPPY TO LOOK AT THE ADMISSION NOTE AND
15 DISCUSS IT IF YOU WOULD LIKE.
16 Q. YES, THAT'S WHAT I WAS GOING TO ASK YOU TO DO. IF YOU
17 WOULD TURN TO THE ELLEN ANDERSON FILE THERE IN FRONT OF YOU.
18 A. OKAY. THIS ONE HERE?
19 Q. YES. THE GRAY ONE?
20 A. YES.
21 Q. AND TURN TO PAGE 170.
22 A. 170?
23 Q. YES. LET ME ASK YOU, IS THAT THE -- WHEN YOU FIND
24 THAT --
25 A. THOSE ARE THE ORDERS.
3371
1 Q. OKAY. IS THAT THE HISTORY THAT YOU WERE REFERRING TO?
2 A. NO. ACTUALLY, THE HISTORY I WAS REFERRING TO IS ON 167
3 IN THE WHITE BINDER.
4 Q. IN THE WHITE BINDER?
5 A. YEAH. NO, I'M SORRY, THE GRAY BINDER. 167 IN THE GRAY.
6 Q. OKAY.
7 A. THIS IS THE -- THEY CALL IT THE PSYCHIATRIC EVAL HERE,
8 BUT IT'S IN FACT THE USUAL HISTORY THAT IS STANDARD.
9 Q. LET ME SHOW YOU, THEN, PAGE 169 OF THAT EXHIBIT.
10 A. OKAY.
11 Q. REFERRING TO THAT DOCUMENT, AT THE BOTTOM OF THAT PAGE
12 DO YOU KNOW WHAT THE D, COLON, STANDS FOR?
13 A. YES, I DO.
14 Q. AND WHAT IS THAT?
15 A. DICTATED.
16 Q. AND DO YOU KNOW WHAT THE T, COLON, STANDS FOR?
17 A. YES.
18 Q. AND WHAT IS THAT?
19 A. TRANSCRIBED.
20 Q. SO BASED ON THIS DOCUMENT IT WOULD APPEAR THAT IT WAS
21 DICTATED ON 12/30/95 AT 12:20, CORRECT?
22 A. CORRECT.
23 Q. AND IT WAS TYPED ON 12/30/95, THE SAME DAY, AT 1401,
24 WHICH I GUESS FOR US LAYMEN IS ABOUT 2:00 O'CLOCK?
25 A. CORRECT.
3372
1 Q. AND IN FACT THAT WAS WRITTEN AFTER ELLEN ANDERSON HAD
2 DIED, WAS IT NOT?
3 A. SHE WASN'T IN THE HOSPITAL VERY LONG. THAT'S PROBABLY
4 CORRECT.
5 Q. NOW I'LL REFER YOU BACK TO THE PHYSICIAN'S ORDER, WHICH
6 IS PAGE 170.
7 A. OKAY.
8 Q. THIS APPEARS TO BE ORDERS WRITTEN FOR MEDICATIONS, IS
9 THAT CORRECT?
10 A. MEDICATIONS AND OTHER APPROPRIATE ORDERS, RIGHT.
11 Q. OKAY. WRITTEN ON 12/29/95, WHICH WAS THE DATE OF ELLEN
12 ANDERSON'S ADMISSION, CORRECT?
13 A. RIGHT.
14 Q. AND RIGHT DOWN HERE WHERE IT INDICATES T.O., DO YOU
15 UNDERSTAND THAT TO MEAN TELEPHONE ORDER?
16 A. I DO.
17 Q. SO THAT WOULD INDICATE TO YOU THAT DR. WEITZEL WAS NOT
18 PRESENT ON THE HOSPITAL GROUNDS AT THE TIME THAT ORDER WAS
19 GIVEN?
20 A. NO.
21 Q. OKAY. SO IT WAS INDICATED IT WAS MADE BY TELEPHONE?
22 A. YES. HE MIGHT HAVE BEEN SOMEWHERE ELSE IN THE HOSPITAL
23 AND DONE IT THAT WAY. HE WASN'T -- WHAT IT MEANS IS HE
24 DIDN'T WRITE IT.
25 Q. WOULD IT MAKE A DIFFERENCE TO YOU IF I TOLD YOU THAT THE
3373
1 NURSES AT THE TIME TESTIFIED THEY DO NOT RECALL DR. WEITZEL
2 EVER BEING IN?
3 MR. STIRBA: I'LL OBJECT TO THE FORM OF THAT
4 QUESTION IN TERMS OF HIM COMMENTING UPON THE TESTIMONY OF
5 OTHER WITNESSES IN THE TRIAL.
6 THE COURT: REPHRASE THE QUESTION.
7 Q. (BY MR. MAJOR) WELL, LET ME ASK IT THIS WAY. ASSUMING
8 THAT THE EVIDENCE WOULD BE THAT DR. WEITZEL HAD NOT HAD ANY
9 CONTACT WITH ELLEN ANDERSON PRIOR TO ISSUING THIS ORDER?
10 A. YES.
11 Q. THAT WOULD INDICATE HE PROBABLY DOESN'T HAVE ANY HISTORY
12 OTHER THAN WHAT WAS GIVEN TO HIM ON THE TELEPHONE, CORRECT?
13 A. WELL, WHAT'S GIVEN TO YOU ON THE TELEPHONE CAN BE ALL
14 THE HISTORY. I MEAN, IT'S NOT UNCOMMON FOR A PATIENT TO BE
15 SENT TO ME IN THE EMERGENCY ROOM WHO IS UNRESPONSIVE AND I
16 SPEND TEN OR 15 OR 20 MINUTES ON THE PHONE WITH THEIR
17 ATTENDING PHYSICIAN AND IN FACT HAVE OBTAINED ALL OF THE
18 HISTORY ON THAT PATIENT.
19 Q. RIGHT. AND WHEN YOU HAVE THE PATIENT PRESENT YOU CAN
20 ALSO DO A PHYSICAL EXAMINATION, CORRECT?
21 A. YES. OBVIOUSLY YOU CAN'T DO A PHYSICAL EXAM WITHOUT
22 BEING PRESENT, THAT'S CORRECT.
23 Q. OKAY. SO DESPITE WHAT YOU HAVE SAID, ALL OF THE HISTORY
24 THAT YOU HAVE TALKED ABOUT WITH ELLEN ANDERSON, THE EVIDENCE
25 IS, BASED ON WHAT WE HAVE HERE, DR. WEITZEL WOULDN'T HAVE
3374
1 BEEN AWARE OF THAT?
2 MR. STIRBA: I'LL OBJECT AGAIN. THAT CALLS FOR
3 SPECULATION.
4 THE COURT: SUSTAINED.
5 Q. (BY MR. MAJOR) NOW, YOU ALSO INDICATED THAT THERE ARE
6 OTHER MEDICATIONS FOR PAIN RELIEF OTHER THAN MORPHINE, IS
7 THAT CORRECT?
8 A. THAT'S CORRECT.
9 Q. SOME OF THOSE MEDICATIONS DO NOT HAVE ALL OF THE SERIOUS
10 SIDE EFFECTS THAT MORPHINE DOES, IS THAT CORRECT?
11 A. THE MEDICATIONS THAT HAVE THE SAME DEGREE OF
12 EFFECTIVENESS AS MORPHINE GENERALLY HAVE THE SAME DEGREE OF
13 SIDE EFFECTS.
14 Q. WELL, WOULD IT BE YOUR OPINION, BASED ON YOUR USE OF THE
15 EMERGENCY ROOM, THAT THE FIRST CHOICE IN ANY TYPE OF
16 SITUATION WHERE THERE'S PAIN IS TO USE MORPHINE?
17 A. I WOULDN'T TESTIFY THAT THE FIRST CHOICE IN ANY
18 SITUATION IS ANYTHING. I THINK IT'S DIFFICULT TO GENERALIZE
19 IN THAT FASHION.
20 Q. CORRECT. THANK YOU. YOU ALSO TESTIFIED THAT, BASED ON
21 WHAT YOU OBSERVED FROM THE RECORDS, THAT ELLEN ANDERSON HAD
22 A MILD CARDIO INFARCTION, IS THAT CORRECT?
23 A. YES.
24 Q. YOU ALSO WERE AWARE THAT -- LET ME ASK YOU THIS. AS A
25 DOCTOR, WHEN YOU'RE DOING THESE TYPES OF ANALYSES, I GUESS
3375
1 YOU COULD SAY THE ULTIMATE MEANS OF DETERMINING THE CAUSE OF
2 DEATH IS THE AUTOPSY ITSELF?
3 A. THE AUTOPSY GIVES THE MOST PRECISE INFORMATION REGARDING
4 ANATOMIC FINDINGS. NOT PHYSIOLOGIC FINDINGS BUT ANATOMIC,
5 THE AUTOPSY IS PROBABLY THE BEST.
6 Q. CORRECT. AND THAT'S WHY, BASICALLY, THE MEDICAL
7 EXAMINER'S CHART IS USED IN DETERMINING CAUSE OF DEATH,
8 BECAUSE ANATOMIC EXAMINATION IS PROBABLY THE BEST WAY TO
9 FIND THAT?
10 A. WELL, I MEAN, IT'S THE TRADITIONAL THING THAT'S DONE,
11 OBVIOUSLY.
12 Q. OKAY. NOW, I'D LIKE YOU TO TURN IN THE WHITE BINDER TO
13 WHAT WE'VE TALKED ABOUT. I BELIEVE IT'S 173 WITH ELLEN
14 ANDERSON.
15 A. OKAY.
16 Q. I APOLOGIZE. 174.
17 A. I HAVE A 172 AND A 190.
18 Q. MED 174?
19 A. I'M SORRY. 174, YES.
20 Q. OKAY. THAT IS THE DIAGNOSTIC IMAGING REPORT, CORRECT,
21 THE X-RAY?
22 A. YES, IT IS.
23 Q. YOU HAVE TESTIFIED THAT IN FACT THERE ARE SEVERAL
24 PROBLEMS THAT YOU OBSERVED IN THAT PARTICULAR X-RAY,
25 CORRECT?
3376
1 A. CORRECT.
2 Q. YOU ARE ALSO AWARE THAT THIS WAS TAKEN APPROXIMATELY
3 5:00 O'CLOCK IN THE MORNING, OR EARLY MORNING, I SHOULD SAY?
4 A. WHY DON'T YOU HELP ME OUT WITH THE TIME?
5 Q. I WOULD INDICATE TO YOU, BECAUSE IT'S PROBABLY NOT ON
6 THIS, THAT I THINK WE DETERMINED THE TIME BASED ON REVIEWING
7 OTHER MEDICAL RECORDS. BUT YOU WERE AWARE -- ARE YOU AWARE
8 THAT THIS X-RAY WAS TAKEN AFTER MS. ANDERSON HAD HAD TWO 10
9 MILLIGRAM SHOTS OF MORPHINE?
10 A. NOT SEEING THE TIME ON THE REPORT, IT'S UNCLEAR TO ME --
11 Q. OKAY.
12 A. -- WHEN THE X-RAY WAS TAKEN.
13 Q. AND YOU'RE ALSO AWARE, BASED ON THE MEDICAL RECORDS,
14 THAT MS. ANDERSON HAD SOME ADDITIONAL TYPES OF MEDICATION ON
15 ENTRY, IS THAT CORRECT?
16 A. THAT'S RIGHT.
17 Q. AND IN FACT, IF SHE HAD THOSE ADDITIONAL MEDICATIONS
18 PLUS THE TWO 10-MILLIGRAM SHOTS OF MORPHINE, THAT COULD VERY
19 WELL HAVE AFFECTED THE RESULTS OF THE X-RAY, CORRECT?
20 A. NO.
21 Q. IT WOULDN'T HAVE ANY EFFECT ON -- MAYBE I SAID EFFECT ON
22 THE X-RAY. YOU DON'T FEEL THAT THAT MIGHT HAVE AN EFFECT ON
23 HER HEART CONDITION AT THAT TIME?
24 A. NO.
25 Q. SO YOUR TESTIMONY WOULD BE THAT MORPHINE DOES NOT AFFECT
3377
1 ANY PARTICULAR HEART CONDITION?
2 A. THAT'S NOT MY TESTIMONY. WE'RE TALKING ABOUT THE
3 SPECIFICS OF THIS CASE. A 10-MILLIGRAM DOSE, GIVEN IN A
4 PARTICULAR POINT IN TIME, FOLLOWED BY ANOTHER ABOUT EIGHT
5 HOURS LATER, THE SPECIFICS OF THAT, IT'S NOT A BIG DOSE. I
6 DON'T THINK IT HAD ANY SIGNIFICANT HEMODYNAMIC EFFECT.
7 Q. ARE YOU POSITIVE IT WAS GIVEN EIGHT HOURS APART?
8 A. I'M NOT POSITIVE OF MUCH ON THIS, NOT HAVING PRACTICED
9 MEDICINE FOR . . .
10 Q. BUT BASED ON YOUR REVIEW OF THE RECORDS, THOSE ARE
11 FAIRLY ACCURATE, ARE THEY NOT?
12 A. YES. MY IMPRESSION WAS THAT THE DOSES WERE IN THAT
13 NEIGHBORHOOD.
14 Q. SO BASED ON THE -- TURN IN THE GRAY BOOK OF ELLEN
15 ANDERSON. I GUESS WE'LL DO IT THIS WAY.
16 A. OKAY.
17 Q. PAGE 201. IT'S UNDER THE MEDS AND GRAPHS.
18 A. OKAY. 201, DID YOU SAY?
19 Q. YES.
20 A. OKAY, I HAVE IT.
21 Q. LOOKING AT THAT, IF YOU WOULD LOOK DOWN HERE WHERE IT
22 TALKS ABOUT THE MORPHINE, 10 MILLIGRAMS, I BELIEVE THAT
23 INDICATES THAT THE FIRST SHOT OF MORPHINE WAS AT 1930 HOURS?
24 A. CORRECT.
25 Q. SO THAT'S APPROXIMATELY 7:30?
3378
1 A. 7:30 P.M., RIGHT.
2 Q. AND THE SECOND SHOT WAS GIVEN APPROXIMATELY 3:30,
3 CORRECT?
4 A. RIGHT.
5 Q. SO THAT'S ABOUT THE SPACE IN WHICH THESE TWO SHOTS WERE
6 GIVEN?
7 A. RIGHT. ISN'T THAT EIGHT HOURS?
8 Q. MAYBE, APPROXIMATELY. BASED ON RECEIVING THOSE TWO
9 SHOTS, THE POSSIBILITY WOULD BE THAT HER RESPIRATIONS WOULD
10 BE DEPRESSED, CORRECT?
11 A. THE LIKELIHOOD WOULD BE THAT THEY WEREN'T.
12 Q. BUT IT'S POSSIBLE THEY COULD HAVE BEEN SUPPRESSED?
13 A. ANYTHING IS POSSIBLE.
14 Q. OKAY.
15 A. I DIDN'T SEE ANY EVIDENCE OF IT, THOUGH.
16 Q. DO YOU KNOW HOW MUCH ELLEN ANDERSON WEIGHED?
17 A. SHE WAS NOT A HUGE WOMAN.
18 Q. IF I TOLD YOU SHE WAS APPROXIMATELY 81 POUNDS, WOULD
19 THAT SOUND ABOUT RIGHT?
20 A. THAT MIGHT BE RIGHT.
21 Q. AND DO YOU RECALL APPROXIMATELY HOW OLD SHE WAS?
22 A. SHE WAS AN ELDERLY LADY. SHE WAS -- LET'S SEE. WHY
23 DON'T YOU TELL ME? OKAY. 91.
24 Q. 91. THAT'S CORRECT. SO 91 YEARS OLD AND 81 POUNDS. 81
25 POUNDS IS ABOUT THE SIZE OF A SMALL CHILD, ISN'T IT?
3379
1 A. DEPENDS ON HOW BIG YOUR CHILD IS.
2 Q. ABOUT A TEENAGER?
3 A. I'VE GOT A TEENAGER THAT WEIGHS 81 POUNDS.
4 Q. OKAY. AND BASED ON AGE AND SO FORTH, YOU DON'T FEEL
5 THAT TWO TEN-MILLIGRAM SHOTS WOULD HAVE AFFECTED HER HEART
6 CONDITION AT THAT TIME?
7 A. NO, I DON'T. I'VE GIVEN THAT AMOUNT TO AN AWFUL LOT OF
8 81 POUND PATIENTS.
9 Q. HOW DOES PNEUMONIA CAUSE DEATH?
10 A. THERE'S A NUMBER OF WAYS THAT IT CAN CAUSE DEATH.
11 Q. AND HOW IS THAT?
12 A. WELL, IT CAN CAUSE DEATH BY AFFECTING OXYGENATION, WHICH
13 THEN AFFECTS THE HEART. IT CAN CAUSE DEATH BASED UPON
14 INFECTION, AN INFECTIOUS PROCESS, BY THE INFECTION RAPIDLY
15 PROGRESSING AND PRODUCING TOXINS AND ADVERSELY AFFECTING THE
16 HEART.
17 Q. OKAY. AND ONE OF THE WAYS IT CAN DO THAT IS BY CAUSING
18 PROBLEMS WITH BREATHING, CORRECT?
19 A. CORRECT.
20 Q. SO IF ONE WERE TO GIVE A SUPPRESSANT DRUG LIKE MORPHINE,
21 OR SOME OF THE OTHER DRUGS THAT SUPPRESS BREATHING, MORPHINE
22 CAN COMPLICATE IT?
23 A. COMPLICATE IT BEING --
24 Q. COMPLICATE THE BREATHING PROBLEM AND AGGRAVATE THE
25 PNEUMONIA, I GUESS?
3380
1 A. I DON'T KNOW THAT IT WOULD AGGRAVATE THE PNEUMONIA.
2 ASSUMING IT WAS HAVING A RESPIRATORY EFFECT IT COULD PLAY A
3 ROLE, BUT I DON'T SEE EVIDENCE OF THAT IN THIS CASE.
4 Q. OKAY. NOW, YOU ALSO TESTIFIED THAT, TURNING TO PAGE --
5 IN THE WHITE BOOK, I BELIEVE TOWARDS THE END, WILD NUMBER
6 TWO. MAYBE I'VE GOT THE WRONG ONE. WILD NUMBER FOUR. I'M
7 SORRY.
8 A. OKAY. I'M LOOKING AT THAT.
9 Q. OKAY. NOW, YOU SAID THAT A PART OF YOUR DETERMINATION
10 AS TO HER CAUSE OF DEATH WAS BASED ON THE ENTRY MADE AT
11 11/18/95, IS THAT CORRECT?
12 A. THAT'S CORRECT.
13 Q. AND PART OF THAT WAS BECAUSE IT INDICATES THERE APPEARED
14 TO BE A TUMOR IN THE LUNG, IS THAT CORRECT?
15 A. THAT'S CORRECT.
16 Q. NOW, IF IT WERE -- IF DR. KELLER WERE TO TESTIFY IN
17 COURT THAT AFTER REVIEW OF THOSE X-RAYS A SECOND TIME THERE
18 WAS NO TUMOR ON THE LUNG, WOULD THAT AFFECT YOUR OPINION AS
19 TO ELLEN ANDERSON'S CAUSE OF DEATH?
20 A. NO. WE ALREADY KNOW THAT THERE WASN'T A TUMOR ON THE
21 LUNG.
22 Q. OKAY. SO THERE WAS REALLY NO REASON TO MENTION THAT AS
23 PART OF THE REASON FOR HER CAUSE OF DEATH ON DIRECT
24 EXAMINATION?
25 A. WELL, NO. THE POINT WAS THAT THERE WAS AN INFILTRATE.
3381
1 THE FACT THAT DR. KELLER THOUGHT IT MIGHT BE A TUMOR AND IT
2 TURNED OUT THAT IT WAS PNEUMONIA --
3 Q. LET ME ASK YOU THIS. IF DR. KELLER AND THE RADIOLOGIST
4 WERE TO TESTIFY THAT THEY DID NOT DETERMINE THAT IT WAS
5 PNEUMONIA --
6 A. THE PATHOLOGIST DID.
7 Q. BUT THIS WAS 11/18/95. IF THEY TESTIFIED THAT THEIR
8 DETERMINATION WAS IT WAS A PROBLEM WITH HER BREATHING, NOT
9 BREATHING DEEP ENOUGH, WOULD THAT MAKE A DIFFERENCE IN YOUR
10 OPINION?
11 A. NOT GIVEN WHAT I KNOW OCCURRED SUBSEQUENTLY, IT
12 WOULDN'T.
13 Q. SO IF SHE HAD -- WELL, SO YOU ALSO ARE AWARE OF THE
14 AUTOPSY THAT WAS PERFORMED ON ELLEN ANDERSON?
15 A. RIGHT. I WAS THERE.
16 Q. AS A MATTER OF FACT, YOU ATTENDED THAT AUTOPSY ITSELF?
17 A. I DID.
18 Q. AND YOU'RE AWARE OF DR. GREY'S POSITION AS FAR AS THAT
19 IS CONCERNED, CORRECT?
20 A. I READ HIS REPORT ON THE AUTOPSY, RIGHT.
21 Q. AND YOU'RE AWARE THAT HE TESTIFIED THAT HE -- THE
22 CONDITIONS HE FOUND IN ELLEN ANDERSON WOULDN'T HAVE BEEN AN
23 ACUTE SITUATION THAT WOULD HAVE CAUSED DEATH?
24 A. I'M NOT AWARE OF THAT. I GUESS MY INTERPRETATION OF HIS
25 OPINIONS WERE SOMEWHAT TO THE CONTRARY.
3382
1 Q. OKAY. AND SO YOU WOULD DISAGREE IF HE TESTIFIED THAT
2 THE PNEUMONIA HE FOUND IN ELLEN ANDERSON, AS A RESULT OF THE
3 AUTOPSY, WAS NOT LIFE THREATENING?
4 MR. STIRBA: I OBJECT TO THE FORM OF THE QUESTION.
5 HE DOESN'T HAVE TO COMMENT ON ANOTHER WITNESS'S TESTIMONY.
6 THE COURT: REPHRASE THE QUESTION.
7 Q. (BY MR. MAJOR) WOULD IT MAKE ANY DIFFERENCE TO YOUR
8 OPINION IF YOU WERE TO KNOW THAT TODD GREY TESTIFIED THAT
9 THE PNEUMONIA HE FOUND IN ELLEN ANDERSON'S LUNGS WAS NOT
10 SUFFICIENT TO HAVE CAUSED DEATH?
11 A. I DON'T THINK SO. MY TESTIMONY WAS THAT DEATH OCCURRED
12 AS A RESULT OF THE PNEUMONIA SUPERIMPOSED ON A NUMBER OF
13 OTHER THINGS.
14 Q. OKAY. AND WOULD IT CHANGE YOUR OPINION IF YOU WERE TO
15 KNOW THAT TODD GREY TESTIFIED THAT THE HEART CONDITION WAS
16 NOT SUFFICIENT TO HAVE CAUSED HER DEATH?
17 A. NO, IT WOULDN'T CHANGE MY OPINION, FOR THE SAME REASON.
18 Q. OKAY. WOULD IT CHANGE YOUR OPINION IF TODD GREY
19 TESTIFIED THAT EVEN THE COMBINATION OF THOSE WOULDN'T HAVE
20 CAUSED HER DEATH?
21 A. NO, IT WOULDN'T CHANGE MY OPINION.
22 Q. YOU ALSO TALKED ABOUT THE FACT THAT ELLEN ANDERSON MAY
23 HAVE HAD SOME CONGESTIVE HEART FAILURE?
24 A. YES.
25 Q. AND IN FACT PEOPLE CAN LIVE FOR YEARS WITH CONGESTIVE
3383
1 HEART FAILURE, IS THAT CORRECT?
2 A. THAT'S CORRECT.
3 Q. AND OFTEN DO?
4 A. CORRECT.
5 Q. SO IS IT YOUR TESTIMONY, THEN, THAT ELLEN ANDERSON HAD
6 ALL OF THESE PROBLEMS AND IT WAS JUST COINCIDENCE THAT SHE
7 HAPPENED TO DIE AT THIS TIME IN THE HOSPITAL?
8 A. I WOULDN'T CALL IT COINCIDENCE. IT'S MY OPINION THAT
9 SOMEONE OF MRS. ANDERSON'S AGE AND HER COMBINED MEDICAL
10 PROBLEMS WAS AT GREAT RISK OF NOT WAKING UP IN THE MORNING
11 EVERY DAY, SO IT WOULDN'T SURPRISE ME AT ALL.
12 Q. YOU, AS A DOCTOR WORKING IN THE EMERGENCY ROOM, HAVE
13 PATIENTS WHO DIE QUITE OFTEN, I ASSUME?
14 A. UNFORTUNATELY.
15 Q. YES. AND WHEN YOU DO LOSE A PATIENT DO YOU DO ANYTHING
16 AS FAR AS ANALYZING WHY THAT PATIENT DIED?
17 A. YES.
18 Q. DO YOU MAKE AN ANALYSIS AS TO WHAT YOU COULD HAVE DONE
19 DIFFERENTLY FOR THAT PATIENT?
20 A. I DO LOOK AT THAT IN TERMS OF ANALYZING WHETHER THERE
21 WERE ANY OTHER TREATMENT OPTIONS IN RETROSPECT THAT I MIGHT
22 HAVE EMPLOYED. BUT THAT IS NOT -- THAT ISN'T WHAT THE
23 ANSWER TYPICALLY IS.
24 Q. BUT IF YOU WERE TO LOSE A SECOND PATIENT WITHIN A VERY
25 SHORT PERIOD OF TIME, UNDER SIMILAR CONDITIONS AS THE FIRST,
3384
1 WOULD THAT CAUSE YOU SOME ALARM?
2 A. IF THE CONDITIONS UNDER WHICH BOTH PATIENTS EXPIRED WAS
3 ONE IN WHICH THERE WAS GRAVE RISK OF THAT OCCURRING BASED
4 UPON THEIR CONDITION, I'D FEEL BADLY BUT IT WOULDN'T CAUSE
5 ME ANY ALARM BECAUSE UNFORTUNATELY I SEE SICK PATIENTS.
6 Q. THAT'S TRUE. AND SO IF YOU WOULD HAVE LOST MAYBE THREE
7 OR FOUR PATIENTS WITHIN A VERY SHORT PERIOD OF TIME, SAY
8 WITHIN TWO WEEKS, WOULD THAT CAUSE YOU ANY ALARM?
9 MR. STIRBA: I'LL OBJECT. RELEVANCY, YOUR HONOR.
10 THE COURT: SUSTAINED.
11 Q. (BY MR. MAJOR) LET'S MOVE ON TO MARY CRANE NOW.
12 A. OKAY.
13 Q. AS A PHYSICIAN ARE YOU FAMILIAR WITH WHAT IS CALLED THE
14 P.D.R.?
15 A. THAT'S THE BLUE BOOK IN ONE YEAR AND THE RED BOOK THE
16 OTHER ONE?
17 Q. RIGHT.
18 A. THERE'S THE BLUE ONE. I USE THAT BOOK ALL THE TIME.
19 Q. THAT IS BASICALLY SOMETHING THAT'S VERY STANDARD THAT
20 DOCTORS USE, IS THAT CORRECT?
21 A. THAT'S RIGHT.
22 Q. AND IT'S CALLED THE PHYSICIANS DESK REFERENCE, IS THAT
23 BASICALLY HOW YOU REFER TO IT?
24 A. YES. WE REFER TO IT AS THE P.D.R., BUT THE OFFICIAL
25 NAME IS THE PHYSICIANS DESK REFERENCE.
3385
1 Q. AND IN THIS REFERENCE, BASICALLY WHAT IT CONTAINS IS THE
2 DIFFERENT TYPES OF DRUGS AND SO FORTH ON THINGS THAT ARE
3 OUT?
4 A. WHAT YOU'RE HOLDING IS THE PRESCRIPTION VERSION OF THE
5 P.D.R. THERE'S ALSO A SKINNIER NONPRESCRIPTION ONE. THE
6 ONE YOU HAVE IS ALL THE DRUGS THAT REQUIRE PRESCRIPTIONS TO
7 ADMINISTER.
8 Q. AND YOU USE THIS ALL THE TIME?
9 A. I DO.
10 Q. LET ME SHOW YOU THIS, WHICH IS THE PHYSICIANS DESK
11 REFERENCE 1995. NOW, YOU'RE AWARE, ARE YOU NOT, WITH MARY
12 CRANE THAT UPON HER ADMISSION TO THE HOSPITAL SHE RECEIVED
13 WHAT IS CALLED A DURAGESIC PATCH?
14 A. YES, I AM.
15 Q. AND ARE YOU FAMILIAR WITH DURAGESIC PATCHES?
16 A. I AM.
17 Q. AND YOU USE THEM ON OCCASION?
18 A. I DON'T MUCH PRESCRIBE DURAGESIC PATCHES. HOWEVER, I
19 NOT INFREQUENTLY SEE PATIENTS PRESENTING WHO ARE WEARING ONE
20 PRESCRIBED BY ANOTHER PHYSICIAN.
21 Q. OKAY. AND THEY'RE FAIRLY STRONG PAINKILLERS, ARE THEY
22 NOT?
23 A. THEY'RE NARCOTICS. THEY'RE A TRANSDERMAL NARCOTIC
24 SYSTEM.
25 Q. LET ME REFER YOU TO PAGE 1178 OF THE P.D.R.
3386
1 A. OKAY.
2 Q. AND INDICATE THAT THAT IS THE 1975 VERSION --
3 A. 1995, YOU MEAN?
4 Q. YES. WHICH WOULD HAVE BEEN EFFECTIVE AT THE TIME OF
5 THESE PATIENTS' DEATHS?
6 A. YES.
7 THE COURT: CAN YOU MAKE THAT ANY BIGGER SO IT CAN
8 BE READ?
9 MR. MAJOR: I THINK SO. I'M SORRY, JUDGE.
10 Q. (BY MR. MAJOR) WHAT I'M REFERRING TO IS THIS LITTLE
11 AREA RIGHT HERE IN THE BOX. THAT'S CIRCLED IN THE BOX
12 BECAUSE THAT'S WHAT IS USUALLY CALLED PRECAUTIONARY
13 LANGUAGE. THAT TELLS THE PROBLEMS YOU MIGHT HAVE WITH THIS
14 PARTICULAR DRUG?
15 A. RIGHT.
16 Q. AND IT'S PUT FIRST BECAUSE IT IS A SIGNIFICANT THING
17 THAT THEY WANT PHYSICIANS USING THIS TO BE AWARE OF, IS THAT
18 CORRECT?
19 A. IS THAT WHY IT'S PUT FIRST?
20 Q. UH-HUH.
21 A. I DON'T KNOW WHY IT'S PUT FIRST, BUT IT'S CERTAINLY
22 THERE.
23 Q. OKAY. AND RIGHT AT THE VERY BEGINNING IT INDICATES
24 SERIOUS OR LIFE THREATENING HYPERVENTILATION?
25 A. HYPO.
3387
1 Q. WHAT IS HYPOVENTILATION?
2 A. IT MEANS DECREASED VENTILATION.
3 Q. OKAY. SO THAT MEANS RESPIRATIONS FALL DOWN, THAT TYPE
4 OF THING?
5 A. DECREASED RESPIRATIONS, RIGHT.
6 Q. OKAY. COULD OCCUR. DURAGESIC IS CONTRADICTED. WHAT
7 DOES THAT MEAN?
8 A. CONTRAINDICATED.
9 Q. SORRY. I CAN'T READ TODAY. WHAT DOES CONTRAINDICATED
10 MEAN?
11 A. IT MEANS THAT IT'S NOT INDICATED.
12 Q. OKAY. THE FIRST ONE INDICATES MANAGEMENT OF ACUTE OR
13 POST-OPERATIVE PAIN, CORRECT?
14 A. RIGHT.
15 Q. AND IN THE MANAGEMENT OF MILD OR INTERMITTENT PAIN,
16 RESPONSIVE TO P.R.N. OR NONOPIOID THERAPY?
17 A. OPIOID.
18 Q. AND THAT BASICALLY MEANS THAT IF YOU CAN CONTROL THE
19 PAIN WITH OTHER MEANS DON'T USE A DURAGESIC PATCH, CORRECT?
20 A. NONOPIOID. IN OTHER WORDS, NOT NARCOTIC.
21 Q. OKAY.
22 A. THAT'S WHAT THEY SAY.
23 Q. RIGHT. AND IN MARY CRANE'S SITUATION, YOU WERE AWARE
24 THAT PRIOR TO HER COMING TO THE HOSPITAL SHE HAD HAD SOME
25 CHRONIC BACK PROBLEMS, CORRECT?
3388
1 A. CORRECT.
2 Q. AND YOU WERE ALSO AWARE THAT PRIOR TO HER COMING TO THIS
3 HOSPITAL SHE HAD BEEN RECEIVING LORTAB AND HYDROCODONE FOR
4 THE TREATMENT OF THAT PAIN?
5 A. RIGHT.
6 Q. AND SHE HAD BEEN RECEIVING APPROXIMATELY ONE 5-MILLIGRAM
7 TABLET EVERY DAY?
8 A. CORRECT.
9 Q. MAYBE 30 TABLETS EVERY 35 DAYS, SOMETHING OF THAT
10 NATURE?
11 A. YES.
12 Q. FIVE MILLIGRAMS OF HYDROCODONE -- I SHOULD SAY LORTAB.
13 THAT IS A FAIRLY SMALL DOSE, ISN'T IT?
14 A. IT'S NOT A -- IT'S A MODEST DOSE, A TYPICAL DOSE.
15 Q. ONE OF THE SMALLER DOSES?
16 A. IT ONLY COMES IN TWO SIZES. FIVE AND SEVEN AND A HALF.
17 Q. OKAY. SO SHE'D BEEN RECEIVING THE LOWEST DOSE?
18 A. THE LOWER OF THE TWO, RIGHT.
19 Q. AND IT WAS ON A P.R.N., WHICH MEANS AS NEEDED FOR PAIN?
20 A. RIGHT.
21 Q. AND THERE WERE OCCASIONS WHEN THE NURSES DID NOT GIVE IT
22 BECAUSE SHE DIDN'T NEED THE PILL FOR THE PAIN, CORRECT?
23 A. RIGHT.
24 Q. LET'S GO ON TO READ FURTHER. SPECIFICALLY LET'S GO DOWN
25 TO THE LAST DOT.
3389
1 A. OKAY.
2 Q. "REQUIRES CONTINUOUS OPIOID ADMINISTRATION. THE 50, 75
3 AND 100 MICROGRAM PER HOUR DOSAGES SHOULD ONLY BE USED IN
4 PATIENTS WHO ARE ALREADY ON AND ARE TOLERANT TO OPIOID
5 THERAPY"?
6 A. YES.
7 Q. AND IN FACT MARY CRANE WAS NOT OPIOID TOLERANT?
8 A. NO. I WOULD INCLUDE THE NARCOTIC HYDROCODONE AS AN
9 OPIOID EQUIVALENT.
10 Q. OKAY. AND SO YOU WOULD INDICATE THAT BECAUSE SHE'D BEEN
11 RECEIVING THAT, THE 50-MILLIGRAM PATCH WOULD HAVE BEEN A
12 PROPER AMOUNT FOR HER SITUATION?
13 MR. STIRBA: I'M GOING TO OBJECT. I THINK THAT'S
14 BEYOND THE SCOPE OF HIS TESTIMONY AND IS IRRELEVANT.
15 THE COURT: CAN YOU ANSWER THE QUESTION?
16 THE WITNESS: YES.
17 THE COURT: GO AHEAD.
18 Q. (BY MR. MAJOR) WOULD YOU INDICATE, THEN, BASED ON YOUR
19 REVIEW OF THE RECORDS, WAS A 50-MILLIGRAM PATCH PROPER IN
20 THIS CASE?
21 A. YES.
22 Q. AND LET ME SHOW YOU, GOING OVER TO PAGE 1179, RIGHT
23 UNDER PRECAUTIONS WHERE IT SAYS GENERAL, THAT INDICATES THAT
24 "DURAGESIC DOSES GREATER THAN 25 MICROGRAMS PER HOUR ARE TOO
25 HIGH FOR INITIATION OF THERAPY IN NONOPIOID TOLERANT
3390
1 PATIENTS AND SHOULD NOT BE USED TO BEGIN DURAGESIC THERAPY
2 IN THESE PATIENTS"?
3 A. THAT'S WHAT IT SAYS, YES.
4 Q. SO EVEN AT THAT POINT IT INDICATES THAT THE 25-MILLIGRAM
5 PATCH WOULD BE A LOT FOR AN OPIOID NONTOLERANT PERSON,
6 CORRECT?
7 A. WHICH SHE WASN'T. SHE WAS NOT -- SHE DIDN'T FALL INTO
8 THAT CATEGORY. IT SAYS GREATER THAN THE 25 MICS, SO I GUESS
9 THEY MEAN 50 AND UP. BUT SHE WAS -- I WOULD CERTAINLY
10 CLASSIFY HER AS AN OPIOID TOLERANT PATIENT BASED UPON THE
11 SIGNIFICANT DURATION OF TIME THAT SHE RECEIVED HYDROCODONE.
12 Q. OKAY.
13 A. WHICH IS PROBABLY THE. . .
14 Q. AND MOVING UP A LITTLE BIT, IF I CAN FIT IT ALL ON HERE,
15 IT ALSO INDICATES THAT "DURAGESIC SHOULD BE PRESCRIBED ONLY
16 BY PERSONS KNOWLEDGEABLE IN THE CONTINUOUS ADMINISTRATION OF
17 POTENT OPIOIDS AND THE MANAGEMENT OF PATIENTS RECEIVING
18 POTENT OPIOIDS FOR TREATMENT OF PAIN AND IN THEIR DETECTION
19 AND MANAGEMENT OF HYPOVENTILATION," IS THAT CORRECT?
20 A. THAT'S RIGHT.
21 Q. IT ALSO GOES ON AND SAYS DEPRESSANTS, INCLUDING OTHER
22 OPIATES, OPIOIDS, SEDATIVES OR HYPNOTICS, GENERAL
23 ANESTHESIAS, AND HOW IS THAT NEXT WORD SAID?
24 A. PHENOTHIAZINES.
25 Q. OKAY. TRANQUILIZERS, SKELETAL MUSCLES. THAT'S USUALLY
3391
1 MUSCLE RELAXANTS?
2 A. SKELETAL MUSCLE RELAXANTS, YES.
3 Q. "SEDATING ANTIHISTAMINES AND ALCOHOLIC BEVERAGES MAY
4 PRODUCE ADDITIVE DEPRESSANT EFFECTS. HYPOVENTILATION,
5 HYPOTENSION AND PROFOUND SEDATION OR COMA MAY OCCUR."
6 A. THAT'S WHAT IT SAYS.
7 Q. SO WHAT IT IS BASICALLY SAYING IS IF YOU USE THE
8 DURAGESIC PATCH AND USE THESE OTHER SEDATIVE TYPE DRUGS, YOU
9 HAVE TO BE CAREFUL BECAUSE IT CAN LOWER YOUR BREATHING, CAN
10 LOWER YOUR BLOOD PRESSURE, AND CAN CAUSE PROFOUND SEDATION
11 OR COMA, CORRECT?
12 A. THAT'S WHAT IT SAYS.
13 Q. WOULD YOU AGREE WITH THAT?
14 A. PARTLY. THE INFORMATION IN THE P.D.R. IS SUPPLIED BY
15 THE MANUFACTURER. IN ALMOST EVERY CASE THE WARNINGS ARE
16 OVERSTATED TO PROTECT THE MANUFACTURER FROM CLAIMS SHOULD
17 COMPLICATIONS OCCUR. SO IN MY OPINION YOU LOOK THROUGH THE
18 P.D.R. AND -- I MEAN, IF YOU JUST READ THE P.D.R. YOU
19 WOULDN'T GIVE ANY DRUGS TO ANYBODY. THEY'RE ALL TOO SCARY
20 AND CAUSE DEATH.
21 BUT THIS SITUATION IS DIFFERENT. MANY OF THESE
22 PATIENTS ARE PRESCRIBED THIS IN OUTPATIENT SETTINGS WHERE
23 NOT ONLY AREN'T THEY IN THE HOSPITAL, THEY'RE NOT IN THE
24 NURSING HOME, SO THEY'RE UNDER NO SUPERVISION, NO
25 MONITORING, NO NURSES TO TAKE THEIR VITAL SIGNS. HERE WE
3392
1 HAVE A DIFFERENT SITUATION. THIS LADY WAS AN INPATIENT.
2 Q. BUT WOULD YOU -- IT TALKS ABOUT "WHEN SUCH COMBINED
3 THERAPY IS CONTEMPLATED DOSES OF ONE OR BOTH AGENTS SHOULD
4 BE REDUCED AT LEAST 50 PERCENT?"
5 A. THAT'S WHAT IT SAYS.
6 Q. AND ARE YOU ALSO AWARE, BASED ON WHAT IS CONTAINED IN
7 THE P.D.R., GOING OVER TO PAGE 181, RIGHT THERE WHERE IT
8 TALKS ABOUT TABLE C?
9 A. YES.
10 Q. AND THAT'S THE RECOMMENDED DURAGESIC DOSE BASED UPON A
11 DAILY ORAL DOSE OF MORPHINE, CORRECT?
12 A. YES.
13 Q. AND THAT WOULD INDICATE THAT A 50-MICROGRAM DURAGESIC
14 PATCH HAS APPROXIMATELY THE SAME AS 135 TO 224 MICROGRAMS,
15 OR MILLIGRAMS, OF MORPHINE?
16 A. MILLIGRAMS, RIGHT.
17 Q. AND 75 WOULD GO UP TO ALMOST 314, CORRECT?
18 A. CORRECT.
19 Q. ARE YOU AWARE, BASED ON YOUR REVIEW OF THE RECORDS, THAT
20 AFTER PLACING THE DURAGESIC PATCH ON MARY CRANE, DR. WEITZEL
21 ORDERED ADDITIONAL SEDATING DRUGS?
22 A. I BELIEVE THAT ADDITIONAL MEDICATIONS WERE ORDERED AFTER
23 THE PATCH WAS IN PLACE.
24 Q. AND YOU ALSO ARE AWARE THAT AT ONE POINT IN TIME HE
25 INCREASED THE PATCH FROM 50 MILLIGRAMS TO 75?
3393
1 A. I BELIEVE THAT'S CORRECT.
2 Q. AND EVEN AFTER HE'D INCREASED IT TO 75 HE STILL ORDERED
3 THE USE OF MORPHINE?
4 A. THAT'S CORRECT.
5 Q. AND IN FACT, HAVING INCREASED THE PATCH TO 75 MICROGRAMS
6 AND INCLUDING THE ADDITIONAL AMOUNTS OF MORPHINE, THAT COULD
7 HAVE CAUSED A COMATOSE STATE IN MARY CRANE BASED ON WHAT THE
8 P.D.R. SAYS?
9 A. I DON'T AGREE WITH THAT.
10 Q. YOU DON'T AGREE IT WOULD HAVE LOWERED HER BLOOD
11 PRESSURE?
12 A. IT MIGHT HAVE LOWERED HER BLOOD PRESSURE IN AN AMOUNT
13 THAT I DON'T BELIEVE WAS CLINICALLY SIGNIFICANT.
14 Q. OKAY. AND LOWERED HER BREATHING?
15 A. I DON'T KNOW THAT IT DOES THAT AT ALL.
16 Q. OKAY. AND SO IF IT'S INDICATED THAT IT COULD CAUSE
17 HYPOTENSION, THAT WOULDN'T HAVE BEEN A PROBLEM?
18 A. WELL, THE FACT THAT --
19 Q. HYPOVENTILATION, SORRY.
20 A. YEAH. THE P.D.R. IS APPROPRIATELY INFORMING USERS OF
21 THE RISKS. IT MAY DO ALL OF THOSE THINGS. I THINK THAT'S
22 WHY YOU GO TO MEDICAL SCHOOL AND GAIN EXPERIENCE IN
23 PRACTICE, BECAUSE AS YOU BEGIN A TREATMENT PLAN YOU
24 ADMINISTER MEDICATIONS AND THEN YOU REASSESS THE SITUATION.
25 IF THE AMOUNT OF MEDICATION THAT YOU STARTED WITH WAS NOT
3394
1 SUFFICIENT IN YOUR JUDGMENT TO PRODUCE THE DESIRED EFFECT,
2 THEN YOU DO SOMETHING ELSE. IT APPEARS TO ME THAT THAT WAS
3 THE PATTERN OF TREATMENT IN THIS CASE.
4 Q. NOW, WITH MARY CRANE, YOU INDICATED THAT YOU FOUND THERE
5 WAS SOME PROBLEMS WITH SEPSIS, IS THAT CORRECT?
6 A. YEAH. THE PROBLEM WAS THAT SHE DIED OF IT.
7 Q. AND YOU'RE AWARE, ARE YOU NOT, THAT WITH SEPSIS, AS I
8 UNDERSTAND IT, THE BACTERIA OR INFECTION GETS INTO THE BLOOD
9 STREAM?
10 A. AND OVERWHELMS THE SYSTEM, RIGHT.
11 Q. GOES INTO THE ORGANS, SO FORTH?
12 A. YES.
13 Q. AND THAT'S WHAT CAUSES DEATH?
14 A. YES.
15 Q. ARE YOU ALSO AWARE THAT THE AUTOPSY THAT WAS PERFORMED
16 BY DR. FRIKKE, SHE DID NOT FIND ANY INDICATIONS OF SEPSIS IN
17 THE BODY?
18 A. SEPSIS IS NOT AN ANATOMIC CONDITION, BUT RATHER A
19 PHYSIOLOGIC CONDITION, SO IT'S UNLIKE MYOCARDIAL INFARCTIONS
20 OR STROKES OR THAT SORT OF THING. YOU OFTEN DON'T SEE
21 ANATOMIC CHANGES AS FOOTPRINTS OF SEPSIS AS YOU WOULD IN
22 OTHER SITUATIONS. SO IT DOESN'T SURPRISE ME, NO.
23 Q. SO IF DR. FRIKKE INDICATES THAT SHE WOULD HAVE EXPECTED
24 TO FIND IT IN THE TISSUES, YOU WOULD DISAGREE WITH THAT?
25 A. IT BEING?
3395
1 Q. THE SEPSIS, THE INFECTION?
2 A. WELL, THERE AREN'T -- YOU WOULD SEE CHANGES PERHAPS IN
3 THE TISSUES WHERE THE INFECTION ORIGINATED, BUT IN TERMS OF
4 THE CHEMICAL CHANGES AND THE PHYSIOLOGIC CHANGES THAT OCCUR
5 THAT WOULD SHUT DOWN THE VITAL ORGANS, THERE REALLY WOULDN'T
6 BE ANYTHING. YOU WOULDN'T SEE BACTERIA, FOR INSTANCE.
7 SEPSIS DOESN'T WORK BY -- YOU DON'T RECOVER BACTERIA FROM
8 THE HEART OR LUNGS OR SOMETHING LIKE THAT. THAT'S NOT HOW
9 IT WORKS.
10 Q. BUT WHEN THE BACTERIA AFFECTS THE TISSUES OF THE HEART
11 OR LIVER OR LUNGS, THAT CHANGE IN THE TISSUE WOULD BE
12 EVIDENT?
13 A. IF IT'S ACUTE ENOUGH. IT DEPENDS. FOR INSTANCE, IF THE
14 SEPSIS KILLED THE KIDNEY AND THEN THE PATIENT DIED YOU'D SEE
15 A DEAD KIDNEY. THE SAME THING WITH THE LIVER. IF, ON THE
16 OTHER HAND, THE SEPSIS RESULTED IN DEATH ACUTELY FROM
17 AFFECTING THE HEART AND CIRCULATORY SYSTEM, YOU WOULDN'T
18 NECESSARILY SEE FINDINGS. I THINK THAT'S WHAT HAPPENED
19 HERE.
20 Q. OKAY. BUT YOU DON'T KNOW THAT?
21 A. I DON'T KNOW THAT?
22 Q. WELL, WHAT I'M SAYING, YOU'RE NOT TRAINED AS A
23 PATHOLOGIST LIKE, FOR EXAMPLE, DR. FRIKKE?
24 A. I DON'T THINK DR. FRIKKE KNEW WHY SHE DIED EITHER, AS I
25 REVIEWED THE AUTOPSY.
3396
1 Q. BUT SHE DID INDICATE IN HER TESTIMONY THAT SHE DIDN'T
2 FIND ANY EVIDENCE THAT SHE DIED OF SEPSIS?
3 A. THAT'S NOT THE SAME THING AS SAYING THAT SHE DIDN'T DIE
4 OF SEPSIS. THE FACT THAT THERE WASN'T ANATOMIC EVIDENCE
5 ISN'T THE SAME THING AS SHE DIDN'T DIE OF IT.
6 Q. OKAY. LET ME ASK YOU THIS, THEN. MOVING ON, WE ALSO
7 TALKED A LITTLE BIT ABOUT THE VAGINAL FISTULA THAT WAS
8 PRESENT IN MARY CRANE?
9 A. YES.
10 Q. ON THE DATE THAT IT WAS INITIALLY DISCOVERED, 1/2 OF
11 '96, THE NOTE -- TURN TO PAGE 244 UNDER MARY CRANE.
12 A. ALL RIGHT.
13 Q. OKAY. AT THE BOTTOM IS THE NOTE GIVEN BY DR. MEEKS, IS
14 THAT CORRECT?
15 A. RIGHT. IT WAS ACTUALLY DISCOVERED THE DAY BEFORE ON
16 1/1.
17 Q. BUT AT THAT POINT IN TIME DR. MEEKS HAD NOT INDICATED
18 THAT THERE WAS ANY INFECTION OR NECESSARILY ANY IMMEDIATE
19 NEED TO TREAT INFECTION, CORRECT?
20 A. THE NOTE IS PRETTY MINIMAL. HE DOESN'T COMMENT UPON
21 WHAT HIS FEELINGS ARE REGARDING WHETHER INFECTION IS
22 ESTABLISHED OR NOT. AS FAR AS I'M CONCERNED, WHEN YOU'VE
23 GOT THAT CONDITION GOING ON, BY DEFINITION THERE'S
24 INFECTION. THERE'S NOTHING BUT BACTERIA IN STOOL AND IT'S
25 NOT SUPPOSED TO BE IN THE VAGINA.
3397
1 Q. SO, THEN, ON PAGE 243, WHICH IS THE PAGE BEFORE THAT,
2 WHERE LYNN LONG ACTUALLY NOTES THE DISCOVERY OF THE PROBLEM,
3 SHE INDICATES "STABLE AT THIS TIME AND NO INFECTION
4 INDICATED," CORRECT?
5 A. MY READING OF THAT IS THAT --
6 Q. I'M NOT ASKING YOU TO INTERPRET IT. THIS IS THE RECORD
7 AND THAT'S WHAT'S WRITTEN. THAT'S WHAT IT SAYS?
8 A. WHAT IT SAYS IS --
9 THE COURT: HOLD ON. LET'S HAVE A QUESTION.
10 Q. (BY MR. MAJOR) WHAT IT INDICATES OR SAYS THERE IS THAT
11 SHE'S STABLE. "PATIENT'S VITALS SIGNS ARE STABLE AT THIS
12 TIME AND NO INFECTION IS INDICATED," IS THAT CORRECT?
13 A. BASED UPON THE VITALS.
14 Q. OKAY. AND THEN IT'S APPROXIMATELY THREE DAYS, TWO DAYS
15 LATER, WHEN THE ANTIBIOTIC WAS FINALLY ORDERED IN THE
16 MATTER?
17 A. FOUR DAYS LATER, I THINK. ON THE 5TH, WASN'T IT?
18 Q. AFTER THIS POINT IN TIME, AFTER IT WAS FIRST DISCOVERED
19 ON 1/1/96, THERE'S NO INDICATION IN THE RECORD THAT THERE
20 WAS ANY -- THAT THERE WAS ANY OTHER PROBLEMS WITH THE
21 FISTULA, IS THAT CORRECT?
22 A. I DON'T THINK SO, ACTUALLY. I THINK THAT THINGS WEREN'T
23 EXPLOSIVELY EVIDENT, BUT I THINK --
24 Q. I'M TALKING ABOUT -- MAYBE TO CHANGE THE QUESTION. WHAT
25 I'M TALKING ABOUT IS THAT THERE IS NO OTHER INDICATION IN
3398
1 THE NOTES THAT THEY FOUND STOOL INSIDE THE VAGINA AFTER THIS
2 DATE?
3 A. WHICH DATE WAS THAT AGAIN?
4 Q. AFTER JANUARY 1ST, 1996?
5 A. THEY DID ON THE 2ND, ESPECIALLY WHEN THE O.B. G.Y.N SAW
6 HER. THERE HAD TO HAVE BEEN -- THERE HAD TO BE STOOL IN THE
7 VAGINA WHENEVER THERE WAS STOOL IN THE COLON, BECAUSE THERE
8 IS A DIRECT COMMUNICATION BETWEEN THE TWO. I MEAN, THE
9 FISTULA ISN'T GOING TO HEAL IN A DAY OR TWO.
10 Q. WE DON'T HOW BIG THE FISTULA WAS?
11 A. BIG ENOUGH TO HAVE GROSS STOOL IN THE COLON.
12 Q. AND WE ALSO DON'T KNOW HOW LONG THAT WAS PRESENT IN MARY
13 CRANE, DO WE? I MEAN, THERE'S NOTHING IN THE RECORD TO
14 INDICATE THAT -- THIS WAS THE FIRST TIME THEY OBSERVED IT,
15 BUT THERE'S NOTHING IN THE RECORD INDICATING THAT SHE DIDN'T
16 HAVE THIS PROBLEM PRIOR TO THIS TIME?
17 A. RIGHT. SHE MAY HAVE.
18 Q. OKAY.
19 THE COURT: IS THIS A GOOD POINT TO MAYBE TAKE A
20 SHORT BREAK?
21 MR. MAJOR: IT WOULD BE A GOOD TIME, YOUR HONOR.
22 THE COURT: LET'S COME BACK -- LET'S TAKE ABOUT TEN
23 MINUTES. COME BACK AT 4:15. DURING THAT TIME REMEMBER THAT
24 IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR CONVERSE
25 ABOUT THE SUBJECT OF THE TRIAL. IT'S ALSO YOUR DUTY NOT TO
3399
1 FORM OR EXPRESS AN OPINION UNTIL THE CASE IS FINALLY
2 SUBMITTED TO YOU. IF YOU WOULD PLEASE COME BACK AT 4:15.
3 (SHORT RECESS.)
4 THE COURT: YOU SAY YOU NEED TO ADDRESS SOMETHING?
5 MR. STIRBA: YES, YOUR HONOR. I JUST WANT TO MAKE
6 A QUICK RECORD. IT WAS THE ISSUE THAT CAME UP DURING HIS
7 TESTIMONY ABOUT MR. ALLDREDGE. WHAT THE ISSUE IS, HE
8 ACTUALLY WENT AND SAW THE FILM OF THE M.R.I. I WAS GOING TO
9 ASK HIM IF THAT IS SOMETHING THAT HE USED FOR PURPOSES OF
10 HIS OPINION.
11 I REALIZE IT ISN'T EVIDENCE IN THE COURTROOM, BUT IT IS
12 PART OF THE HOSPITAL RECORD. I THINK IT'S CERTAINLY
13 SOMETHING AN EXPERT CAN RELY UPON. I THINK OBVIOUSLY WE
14 COULD GET IT HERE AND HE CAN REVIEW IT HERE. IN ANY EVENT,
15 WE HAVEN'T DONE THAT, BUT THAT WAS THE ISSUE. I JUST WANTED
16 TO MAKE A RECORD ON IT AND SEE IF I CAN MAYBE EXPLORE THAT
17 WITH HIM AND MAYBE USE THE M.R.I. AT SOME LATER POINT.
18 THE COURT: THIS IS THE M.R.I. WHERE WE HAVE THE
19 WRITTEN REPORT?
20 MR. STIRBA: RIGHT. HE DID LOOK AT THE ACTUAL
21 FILM.
22 MR. MAJOR: MY RESPONSE IS I DON'T THINK WE'VE LAID
23 A FOUNDATION WITH THIS DOCTOR THAT HE HAS THE ABILITY TO
24 READ THE ACTUAL M.R.I. FILM. IF WE LAID THAT FOUNDATION,
25 AND IT'S SUFFICIENT, AND HE'S DONE ENOUGH OF THEM, THEN I
3400
1 GOES WE WOULDN'T HAVE ANY OBJECTION. MY REAL OBJECTION WAS
2 THAT THERE'S NO FOUNDATION TO HIS ABILITY AS A RADIOLOGIST
3 TO INTERPRET THOSE FILMS, ESPECIALLY WHEN WE'VE HAD A
4 RADIOLOGIST WITH 11 YEARS OF EXPERIENCE. WITHOUT A
5 FOUNDATION FOR HIS EXPERIENCE, THAT WAS MY OBJECTION.
6 THE COURT: OKAY. IT'S A QUESTION OF FOUNDATION.
7 WHILE WE HAVE THE BREAK, BEFORE THE JURY COMES BACK, I HAVE
8 PREPARED SOME JURY INSTRUCTIONS THAT ARE SOME OF THE GENERAL
9 JURY INSTRUCTIONS THAT SOME OF YOU HAVE ASKED. AND SO WHEN
10 WE DISCUSS THE JURY INSTRUCTIONS LATER, ON JULY 3RD, WE'LL
11 DISCUSS THE ONES BOTH SIDES HAVE PRESENTED. I MADE TWO
12 COPIES FOR EACH SIDE. I'LL ASK THE BAILIFF TO GIVE THOSE TO
13 YOU.
14 ANYTHING ELSE TO DISCUSS BEFORE THE JURY COMES IN?
15 OKAY. IF WE CAN HAVE THE JURY BACK IN, PLEASE.
16 (JURY RETURNED TO THE COURTROOM.)
17 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
18 HAS RETURNED. MR. MAJOR, YOU MAY CONTINUE.
19 MR. MAJOR: THANK YOU, YOUR HONOR.
20 Q. (BY MR. MAJOR) DOCTOR, I'D LIKE TO TURN NOW AT THIS
21 POINT TO ENNIS ALLDREDGE.
22 A. OKAY.
23 Q. YOU'RE AWARE, DOCTOR, THAT -- YOU HAVE REVIEWED THE
24 AUTOPSY REPORT, IS THAT CORRECT?
25 A. THAT'S RIGHT.
3401
1 Q. AND YOU'RE ALSO AWARE THAT DR. GREY PERFORMED THAT
2 AUTOPSY AND TESTIFIED THAT THE CONDITIONS HE FOUND ON THAT
3 AUTOPSY, CONCERNING THE HEART AND LUNGS AND SO FORTH,
4 WOULDN'T HAVE CAUSED HIS DEATH, ARE YOU FAMILIAR WITH THAT?
5 A. HIS TESTIMONY, NO. I'M JUST FAMILIAR WITH THE REPORT.
6 Q. OKAY. YOU'RE ALSO FAMILIAR, ARE YOU NOT, BASED ON THE
7 AUTOPSY, THAT HE DID NOT FIND ANY INDICATION OF A STROKE?
8 A. I TESTIFIED ON DIRECT EXAM THAT THE PART OF THE BRAIN
9 THAT WOULD HAVE BEEN INVOLVED WAS -- HAD DETERIORATED SUCH
10 THAT THAT COULDN'T BE FOUND.
11 Q. NOW, THAT'S BASICALLY YOUR OPINION BASED ON READING HIS
12 AUTOPSY REPORT?
13 A. YES.
14 Q. YOU DID NOT ATTEND THIS AUTOPSY?
15 A. CORRECT.
16 Q. YOU'RE NOT A PATHOLOGIST OR MEDICAL EXAMINER?
17 A. CORRECT.
18 Q. YOU DO NOT HAVE ANY EXPERTISE IN DOING THAT?
19 A. I ACTUALLY, SURPRISING ENOUGH, DO HAVE SOME EXPERTISE IN
20 DOING AUTOPSIES.
21 Q. SO YOU HAVE PERFORMED AUTOPSIES YOURSELF?
22 A. I HAVE.
23 Q. AND WHEN WAS THAT?
24 A. QUITE A WHILE AGO.
25 Q. HOW LONG AGO?
3402
1 A. WELL, IT SEEMS LIKE ANOTHER CENTURY, BUT IT WAS BACK IN
2 MEDICAL SCHOOL, ABOUT THE EARLY SEVENTIES.
3 Q. OKAY. BUT SINCE THEN YOU'VE NOT BEEN INVOLVED IN
4 PERFORMING AUTOPSIES YOURSELF?
5 A. NO. I'VE ATTENDED BUT NOT PERFORMED, THAT'S RIGHT.
6 Q. AND HAVE YOU EVER BEEN INVOLVED IN PERFORMING AN AUTOPSY
7 ON A BODY THAT'S BEEN INTERRED AND THEN EXHUMED?
8 A. I THINK SO.
9 Q. WHEN WOULD THAT HAVE BEEN?
10 A. BACK AT THE TIME I REFERENCED.
11 Q. OKAY. NOW, MOVING ON REAL QUICK TO JUDITH LARSEN,
12 YOU'RE ALSO AWARE, ARE YOU NOT, THAT TODD GREY CONDUCTED AN
13 AUTOPSY REPORT ON JUDITH LARSEN?
14 A. RIGHT.
15 Q. AND YOU'RE ALSO AWARE THAT HIS RESULTS INDICATED THAT
16 SHE DID DIE FROM MORPHINE INTOXICATION, CORRECT?
17 A. I'M AWARE THAT THAT WAS HIS OPINION.
18 Q. YOU'RE ALSO AWARE THAT HE TESTIFIED HE DID NOT FIND ANY
19 OTHER CAUSE OF DEATH OTHER THAN THE MORPHINE INTOXICATION,
20 CORRECT?
21 A. THAT'S RIGHT.
22 Q. YOU ALSO TESTIFIED -- YOU INDICATED THAT BASED ON YOUR
23 REVIEW OF THE MEDICAL RECORDS YOU FELT THAT JUDITH LARSEN
24 HAD SUFFERED A STROKE IN THE PAST, PRIOR TO COMING TO THE
25 DAVIS NORTH HOSPITAL, IS THAT CORRECT?
3403
1 A. SHE HAD SUFFERED AT LEAST THREE DOCUMENTED STROKES.
2 THAT'S WHAT I TESTIFIED, RIGHT.
3 Q. OKAY. AND YOU'RE AWARE THAT THERE WAS A C.A.T. SCAN, OR
4 AN IMAGING, MADE OF JUDITH LARSEN IN JANUARY OF 1995?
5 A. YES.
6 Q. AND ONE IN AUGUST OF 1995?
7 A. YES.
8 Q. AND ONE IN SEPTEMBER OF 1995?
9 A. YES.
10 Q. ARE YOU AWARE THAT HER TREATING PHYSICIANS, DR. STEVENS
11 AND DR. PEARCE, TESTIFIED THAT THE C.A.T.S THAT WERE
12 PREPARED IN AUGUST AND SEPTEMBER SHOWED NO SIGNIFICANT
13 CHANGE IN HER CONDITION?
14 A. NOT IN HER CONDITION, BUT -- THERE WAS NO SIGNIFICANT
15 CHANGE IN THE IMAGES, IS THAT WHAT YOU'RE ASKING ME?
16 Q. I SHOULD SAY THAT, YES, THE IMAGES.
17 A. I WASN'T HERE DURING THEIR TESTIMONY SO I DON'T KNOW
18 THAT.
19 Q. IF THEY TESTIFIED TO THAT WOULD THAT MAKE A DIFFERENCE
20 IN YOUR OPINION AS TO HER CAUSE OF DEATH?
21 A. NO. THEIR CLINICAL IMPRESSION, THERE WAS NO QUESTION
22 THAT IN AUGUST SHE'D STROKED.
23 Q. AND WOULD IT MAKE A DIFFERENCE IN YOUR OPINION IF A
24 RADIOLOGIST WERE TO TESTIFY THAT HE COMPARED THE C.A.T.
25 SCANS IN JANUARY, AUGUST, SEPTEMBER AND THE ONE AT THE
3404
1 HOSPITAL AND ALSO FOUND NO SIGNIFICANT CHANGES IN THE
2 IMAGING?
3 A. NO, IT WOULDN'T CHANGE IT AT ALL.
4 Q. SO YOU STILL FEEL THAT SHE WOULD HAVE HAD THREE STROKES
5 PRIOR TO COMING TO THE HOSPITAL?
6 A. SHE DEFINITELY HAD THREE STROKES PRIOR TO COMING TO THE
7 HOSPITAL.
8 Q. NOW, ONE OF THE THINGS, IN DEALING WITH YOUR EXPERIENCE
9 IN GIVING MORPHINE, WE'VE TALKED ABOUT SOME OF THE PROBLEMS
10 THAT MORPHINE CAN CAUSE. ONE OF THE WAYS THAT YOU DEAL WITH
11 DOING MORPHINE IS THE FACT THAT YOU OBSERVE THE PATIENT ONCE
12 THE MORPHINE IS GIVEN, IS THAT CORRECT?
13 A. RIGHT.
14 Q. AND WE MAKE -- AND WE RELY ON THE NURSES TO MAKE AN
15 ASSESSMENT OF THE EFFECTS OF THE MORPHINE?
16 A. WHOEVER THE OBSERVER IS. MOST COMMONLY THE NURSES,
17 RIGHT.
18 Q. AND IF THEY SEE A PROBLEM, THEN IT'S YOUR UNDERSTANDING
19 THAT THEY TAKE SOME TYPE OF ACTION, CORRECT?
20 A. THAT'S RIGHT.
21 Q. AND THAT'S BASED ON THEIR TAKING THE VITAL SIGNS,
22 BREATHING, PULSE, SO FORTH?
23 A. THAT AND JUST GENERAL AND SPECIFIC CLINICAL
24 OBSERVATIONS, RIGHT.
25 Q. LET ME SHOW YOU -- LET'S GO TO JUDITH LARSEN IN THE
3405
1 BROWN FOLDER THERE.
2 A. THE GRAY?
3 Q. THE GRAY, YES. IT'S GETTING CLOSE TO FIVE O'CLOCK. I
4 APOLOGIZE, DOCTOR. MY EYES ARE NOT DISTINGUISHING TODAY.
5 A. OKAY. I HAVE THAT NOW.
6 Q. TURN TO PAGE 507.
7 A. OKAY. WHICH TAB WOULD THAT BE UNDER?
8 Q. THE MEDS, I BELIEVE.
9 A. OKAY.
10 Q. AND LET ME SHOW YOU --
11 A. I'VE GOT 507 NOW.
12 Q. OKAY. IN LOOKING AT THAT EXHIBIT, IT INDICATES M.S.,
13 FIVE MILLIGRAMS EVERY THREE HOURS, ROUTINE ROUND THE CLOCK,
14 CORRECT?
15 A. CORRECT.
16 Q. AND THEN AT 030 ON THE 3RD, IN THIS COLUMN RIGHT HERE,
17 THERE'S AN INITIAL WITH A CIRCLE AROUND IT. DOES THAT
18 INDICATE TO YOU, DOCTOR, THAT THAT SHOT WAS NOT GIVEN?
19 A. I'M NOT SURE WHAT THAT INDICATES.
20 Q. OKAY. SO YOU'RE NOT AWARE THAT IF A NURSE WERE TO PLACE
21 A CIRCLE AROUND HER INITIALS IT WOULD INDICATE THAT A SHOT
22 WOULD NOT HAVE BEEN GIVEN?
23 A. DIFFERENT HOSPITALS AND DIFFERENT NURSES USE DIFFERENT
24 SORTS OF CONVENTIONS, IF YOU WILL, OVER DIFFERENT TIMES. IF
25 I WORKED THERE I'D KNOW WHAT THAT MEANT.
3406
1 Q. OKAY. LET'S NOT GET INTO THAT IF YOU'RE UNSURE WHAT
2 THAT MEANS. LET'S MOVE TO LYDIA SMITH. JUST QUICKLY LET ME
3 ASK YOU THIS. YOU MENTIONED THAT LYDIA SMITH, ON YOUR
4 DIRECT EXAMINATION, HAD A RECENT STROKE WHICH OCCURRED IN
5 NOVEMBER OF 1995, I BELIEVE?
6 A. RIGHT.
7 Q. AND IF DR. SOUTHWORTH WERE TO TESTIFY THAT THAT WAS A
8 MILD STROKE, WOULD THAT MAKE ANY CHANGE IN YOUR OPINION AS
9 TO HER CAUSE OF DEATH?
10 A. I DON'T THINK SO. IS THAT WHAT HE TESTIFIED?
11 Q. I BELIEVE SO, INITIALLY. BUT THAT WOULDN'T MAKE ANY
12 DIFFERENCE IN YOUR TESTIMONY?
13 A. NO. I'D BE SURPRISED IF HE CHARACTERIZED IT AS MILD.
14 Q. OKAY. AND IF HE WERE TO INDICATE THAT THE PATIENT WAS
15 NOT CLOSE TO DYING AT THE TIME THIS OCCURRED, WOULD THAT
16 CHANGE YOUR OPINION AT ALL?
17 A. NO, IT WOULDN'T.
18 Q. DOCTOR, ONE LAST QUESTION, OR A FEW QUESTIONS BEFORE WE
19 CLOSE. YOU'VE INDICATED THAT YOU'RE TESTIFYING HERE IN
20 BEHALF OF THE DEFENDANT, IS THAT CORRECT?
21 A. THAT'S CORRECT.
22 Q. AND YOU'RE TESTIFYING AS AN EXPERT?
23 A. THAT'S CORRECT.
24 Q. AND AS AN EXPERT YOU HAVE REACHED A FEE AGREEMENT WITH
25 THE DEFENDANT FOR YOUR TESTIMONY TODAY?
3407
1 A. CORRECT.
2 Q. HOW MUCH HAVE YOU CHARGED THE DEFENDANT FOR YOUR
3 TESTIMONY TODAY?
4 A. MY RATE IS $300 AN HOUR.
5 Q. APPROXIMATELY HOW MUCH HAVE YOU CHARGED SO FAR?
6 A. I DON'T KNOW.
7 Q. HAVE YOU SENT IN A BILL YET?
8 A. I SENT A BILLING EARLY ON, SOME MONTHS AGO.
9 Q. DO YOU KNOW HOW MANY HOURS YOU'VE PUT IN ON THIS CASE TO
10 THIS DATE?
11 A. NO, I DON'T. I'M NOT SURE.
12 Q. AN ESTIMATE?
13 A. I'D HAVE TO GO BACK AND LOOK.
14 MR. MAJOR: ONE MOMENT, YOUR HONOR.
15 (PAUSE IN THE PROCEEDINGS.)
16 Q. (BY MR. MAJOR) DOCTOR, YOU'VE ALSO INDICATED, ON YOUR
17 INITIAL DIRECT EXAMINATION, THAT YOU HAVE TESTIFIED AS AN
18 EXPERT BEFORE, IS THAT CORRECT?
19 A. RIGHT.
20 Q. AND HAVE YOU TESTIFIED IN CRIMINAL CASES BEFORE?
21 A. I HAVE.
22 Q. AND IN FACT, WHEN YOU TESTIFY IN CRIMINAL CASES THAT IS
23 PRETTY MUCH FOR THE DEFENSE, CORRECT?
24 A. NO.
25 Q. HOW MANY TIMES HAVE YOU TESTIFIED FOR THE DEFENSE?
3408
1 A. SOME NUMBER OF DOZENS.
2 Q. AND HOW MANY TIMES WOULD YOU SAY YOU'VE TESTIFIED ON
3 BEHALF OF THE PROSECUTION?
4 A. A COUPLE DOZEN.
5 MR. MAJOR: NO FURTHER QUESTIONS, YOUR HONOR.
6 THE COURT: ANY REDIRECT?
7 MR. STIRBA: YES, YOUR HONOR.
8 REDIRECT EXAMINATION
9 BY MR. STIRBA:
10 Q. DOCTOR, YOU WERE SHOWN SOME CALCULATIONS OUT OF THE
11 P.D.R. THAT RELATED TO THE DURAGESIC PATCH AND AN ORAL
12 MORPHINE DOSE. DO YOU REMEMBER THAT?
13 A. YES, I DO.
14 Q. DID THE PATIENTS, BASED UPON YOUR REVIEW OF THE RECORDS
15 IN THIS CASE, RECEIVE ORAL DOSES OF MORPHINE?
16 A. NO, THEY DIDN'T.
17 Q. HOW WAS THE MORPHINE ADMINISTERED?
18 A. INTERMUSCULARLY BY SHOT.
19 Q. AND IS THAT SIGNIFICANT IN TERMS OF WHAT YOU WERE SHOWN
20 AND IN TERMS OF THE MATERIAL THAT WAS DISPLAYED TO YOU?
21 A. WELL, YES. THE RELATIONSHIPS BETWEEN THE DURAGESIC AND
22 THE EQUIVALENCY OF MORPHINE IN ORAL DOSAGES, YOU CAN'T JUST
23 EQUATE THOSE STRAIGHT ACROSS TO INTERMUSCULAR
24 ADMINISTRATIONS.
25 Q. AND WHY IS THAT?
3409
1 A. BECAUSE THE ABSORPTION AND DISTRIBUTION CHARACTERISTICS
2 OF THEM ARE DIFFERENT.
3 Q. NOW, YOU REVIEWED MARY CRANE'S RECORDS. ARE YOU AWARE
4 OF DR. DIENHART'S REPORT OF CONSULTATION?
5 A. YES, I AM.
6 Q. AND DO YOU RECALL WHAT HE INDICATED IN TERMS OF HIS
7 RECOMMENDATIONS CONCERNING THE DURAGESIC PATCH?
8 A. IF MY MEMORY SERVES ME CORRECTLY, DR. DIENHART --
9 Q. PERHAPS I CAN REFER YOU TO --
10 A. HE SAYS --
11 Q. -- WHAT IS MED 236, I BELIEVE.
12 A. OKAY. YEAH. HE SAYS, "AGREE WITH ADEQUATE PAIN CONTROL
13 WITH NONSTEROIDAL ANTIINFLAMMATORY DRUGS AND DURAGESIC."
14 Q. AND ALSO --
15 A. HOWEVER, HE TALKS ABOUT SOME POSSIBLE ALLERGIES TO THE
16 ANTIINFLAMMATORY, BUT MY RECOLLECTION IS THAT HE CONCURRED
17 WITH THE 50-MILLIGRAM DOSAGE. OR MICROGRAM DOSAGE, EXCUSE
18 ME.
19 Q. IF YOU WOULD, TURN TO 235.
20 A. OKAY.
21 Q. THAT'S ALSO PART OF THAT REPORT, IS THAT RIGHT?
22 A. YOU KNOW, THAT'S MISSING IN MY BINDER UNFORTUNATELY.
23 Q. FROM THE EVIDENCE BINDER?
24 A. LET'S SEE. YES.
25 Q. LOOK IN THE GRAY, PLEASE.
3410
1 A. ALL RIGHT.
2 Q. AND SPECIFICALLY THE NUMBER IS 235.
3 A. OKAY.
4 Q. THAT'S PART OF HIS REPORT FROM ANOTHER PAGE THAT YOU
5 JUST REFERRED TO?
6 A. RIGHT.
7 Q. I'LL DIRECT YOUR ATTENTION DOWN TO WHERE HE TALKS ABOUT
8 MEDICATIONS. DO YOU SEE THAT?
9 A. YES.
10 Q. THE LAST LINE THERE STATES WHAT?
11 A. "DURAGESIC, 50-MICROGRAM PATCH, Q THREE DAYS."
12 MR. STIRBA: THAT'S ALL. THANK YOU.
13 THE COURT: ANYTHING FURTHER?
14 MR. MAJOR: JUST ONE MORE QUESTION.
15 RECROSS-EXAMINATION
16 BY MR. MAJOR:
17 Q. ARE YOU AWARE, DOCTOR, THAT AFTER THE REPORT BY DR.
18 DIENHART, LATER ON IN THE TREATMENT OF MARY CRANE HE
19 INDICATED THAT THE DURAGESIC PATCH SHOULD BE REDUCED TO 25
20 MICROGRAMS?
21 A. I DON'T RECALL THAT, NO.
22 Q. WOULD YOU LOOK AT PAGE 242 IN THE BINDER?
23 A. YES.
24 Q. 242. SEE IF YOU CAN FIND A REFERENCE TO THE FACT OF THE
25 REDUCTION OF DURAGESIC?
3411
1 A. ALL RIGHT. (PAUSE.) THERE'S AN ENTRY ON 1/1/96,
2 "DECREASE DURAGESIC PATCH TO 25 MICROGRAMS."
3 Q. AND THAT WAS A RECOMMENDATION MADE BY DR. DIENHART?
4 A. IT LOOKS LIKE.
5 Q. HOWEVER, DR. WEITZEL CANCELLED THAT ORDER AND MAINTAINED
6 IT AT THE 50 MICROGRAMS, IS THAT CORRECT?
7 A. (PAUSE.) DR. WEITZEL, ON THE NEXT PAGE, ON 1/1, ORDERED
8 50 MICS, Q THREE DAYS, RIGHT.
9 MR. MAJOR: THAT'S ALL WE HAVE, YOUR HONOR.
10 THE COURT: CAN THIS WITNESS BE EXCUSED?
11 MR. STIRBA: YES, YOUR HONOR. OH, EXCUSE ME. THE
12 MATTER THAT WE BROUGHT UP BEFORE.
13 THE COURT: RIGHT. I THINK HE SAID IT WAS A
14 QUESTION OF FOUNDATION. DO YOU WANT TO LAY THAT?
15 MR. STIRBA: I WILL.
16 REDIRECT EXAMINATION
17 BY MR. STIRBA:
18 Q. DOCTOR, ARE YOU FAMILIAR WITH M.R.I.'S?
19 A. YES, I AM.
20 Q. AND HAVE YOU HAD OCCASION IN YOUR PRACTICE TO READ FILMS
21 FROM M.R.I.'S?
22 A. THERE ARE TWO TYPES OF M.R.I.'S THAT I ORDER AND READ
23 ROUTINELY. MANY THAT I DON'T. THE ONES THAT I DO ROUTINELY
24 AS PART OF MY PRACTICE ARE SPINE M.R.I.'S AND BRAIN
25 M.R.I.'S. I DON'T READ OTHER TYPES ON A REGULAR BASIS. BUT
3412
1 BRAIN AND SPINE I DO.
2 Q. HOW MANY BRAIN M.R.I.'S DO YOU BELIEVE YOU HAVE READ
3 OVER THE COURSE OF YOUR CAREER?
4 A. OVER A HUNDRED. HOW MANY MORE I'M NOT REALLY SURE.
5 Q. WOULD THE BRAIN M.R.I.'S THAT YOU'VE READ, WOULD THEY BE
6 SIMILAR TO THE M.R.I. THAT WAS TAKEN OF THE BRAIN OF MR.
7 ALLDREDGE?
8 A. YES.
9 Q. AND IN WHAT RESPECT WOULD THEY BE SIMILAR?
10 A. THE TECHNIQUE IS ESSENTIALLY THE SAME WITH ALL THE
11 MAGNETS. M.R.I. REFERS TO MAGNETIC RESONANCE IMAGING. THE
12 TECHNOLOGY IS THE SAME. THE FORMAT OF THE FILMS THAT YOU
13 GET, THE VIEWS AND ALL OF THAT, IS THE SAME. I READ
14 M.R.I.'S TAKEN FROM A DOZEN DIFFERENT FACILITIES UP AND DOWN
15 THE WASATCH FRONT. THEY ALL LOOK ABOUT THE SAME.
16 Q. FOR WHAT PURPOSE DO YOU READ BRAIN M.R.I.'S?
17 A. TO DIAGNOSIS PROBLEMS POTENTIALLY AFFECTING THE BRAIN.
18 TO RULE OUT THE VARIOUS CONDITIONS THAT CAN CAUSE BRAIN
19 DYSFUNCTION, SUCH AS TUMORS, SUCH AS BLEEDS, SUCH AS
20 STROKES.
21 MR. STIRBA: WITH THAT FOUNDATION I'M DONE.
22 THE COURT: DO YOU WANT TO DO ANY QUESTIONING ABOUT
23 FOUNDATION?
24 MR. MAJOR: NO, YOUR HONOR.
25 THE COURT: ALL RIGHT. YOU MAY GO AHEAD.
3413
1 Q. (BY MR. STIRBA) HAVE YOU LOOKED AT THE FILM OF THE
2 M.R.I. THAT WAS DONE ON MR. ALLDREDGE WHEN HE WAS IN THE
3 HOSPITAL AT THE DAVIS HOSPITAL?
4 A. SOMEONE DELIVERED THOSE FILMS TO MY OFFICE ABOUT A WEEK
5 AGO, MAYBE.
6 Q. DID YOU REVIEW THEM AT THAT TIME?
7 A. I DID.
8 Q. AND YOUR REVIEW OF THOSE FILMS, WAS IT SIGNIFICANT, IN
9 TERMS OF YOUR OPINION, CONCERNING WHETHER OR NOT MR.
10 ALLDREDGE HAD A STROKE?
11 A. IT WAS.
12 Q. AND CAN YOU TELL US IN WHAT WAY?
13 A. MY READING OF THE M.R.I. WAS REALLY QUITE SIMILAR TO THE
14 RADIOLOGIST'S, WITH THE EXCEPTION THAT I USED CLINICAL
15 CORRELATION FROM THE OTHER INFORMATION THAT I'D REVIEWED.
16 THE M.R.I. WAS CLEARLY ABNORMAL. THERE WERE POSITIVE
17 FINDINGS IN THE LEFT OCCIPUT. IN MY OPINION, TO A
18 REASONABLE MEDICAL CERTAINTY, THEY INDICATED THAT HE'D
19 SUFFERED A STROKE IN THAT AREA.
20 MR. STIRBA: THANK YOU. THAT'S ALL.
21 THE COURT: ANY FURTHER CROSS-EXAMINATION?
22 RECROSS-EXAMINATION
23 BY MR. MAJOR:
24 Q. WHEN YOU LOOK AT THE M.R.I.'S, DO YOU ACTUALLY LOOK AT
25 THE FILM OR JUST REVIEW THE REPORT?
3414
1 A. I ALWAYS LOOK AT THE FILM.
2 Q. AND GENERALLY YOU'RE LOOKING AT THE FILM FOR PART OF
3 YOUR EMERGENCY ROOM SITUATION, CORRECT?
4 A. BOTH. I ORDER THEM FREQUENTLY IN MY OFFICE PRACTICE. I
5 SEE A LOT OF PATIENTS WITH CEREBRAL DYSFUNCTION.
6 Q. AND THAT'S MAINLY THE RESULT OF A TRAUMATIC EXPERIENCE,
7 GETTING HIT IN THE HEAD, ACCIDENTS, THOSE TYPES OF THINGS?
8 A. YES.
9 Q. SO YOU DON'T HAVE A LOT OF EXPERIENCE IN LOOKING AT
10 M.R.I.'S FOR A STROKE, SIMPLY FOR A STROKE?
11 A. WELL, I WOULDN'T AGREE WITH THAT. I MEAN, WHEN YOU LOOK
12 AT THE FILM YOU'RE LOOKING AT THE SHADOWS. YOU'RE LOOKING
13 TO SEE WHETHER THE ANATOMY IS NORMAL OR ABNORMAL, THE
14 DIFFERENTIAL DIAGNOSIS. THERE'S A DIFFERENTIAL DIAGNOSIS
15 FOR THOSE SHADOWS.
16 Q. BUT I'M NOT ASKING THAT. I'M ASKING DO YOU LOOK ON A
17 REGULAR BASIS FOR STROKE VERSUS HEAD INJURIES CAUSED BY
18 ACCIDENT AND THAT TYPE OF THING?
19 A. I LOOK ON A REGULAR BASIS FOR STROKE AS PART OF MY
20 DIFFERENTIAL DIAGNOSIS OF THE PATIENT'S PROBLEM.
21 Q. YOU'RE NOT BOARD CERTIFIED IN RADIOLOGY?
22 A. I'M NOT.
23 Q. AND YOU'RE NOT NECESSARILY A SPECIALIST IN RADIOLOGY?
24 A. THAT'S CORRECT.
25 Q. AND BASED ON WHAT YOU SAW OF THAT REPORT, WOULD YOU
3415
1 HAVE -- IF YOU HAD BEEN IN THAT SITUATION WOULD YOU HAVE
2 WANTED TO FOLLOW UP ON THAT M.R.I.?
3 A. I WOULD HAVE WANTED CLINICAL CORRELATION, JUST LIKE THE
4 RADIOLOGIST DID.
5 Q. AND YOU WOULD THINK IT WOULD BE IMPORTANT TO HAVE A
6 SECOND M.R.I. DONE BEFORE MAKING A DECISION?
7 A. ACTUALLY THEY SUGGESTED -- THE PROBLEM WITH THAT M.R.I.
8 WAS THAT THE PATIENT WAS AGITATED WHEN IT OCCURRED AND THERE
9 WAS MOTION, WHICH MADE IT A LITTLE MORE DIFFICULT TO
10 INTERPRET. THEY SUGGESTED AS AN ALTERNATIVE AN M.R.I. UNDER
11 ANESTHESIA. THAT'S A RISKY THING TO DO.
12 Q. I UNDERSTAND THAT. WOULD YOU HAVE WANTED A SECOND
13 M.R.I. IF YOU'D BEEN IN THAT SITUATION?
14 A. WELL, THE REASON I RAISED THAT IS BECAUSE HAD I BEEN IN
15 THAT SITUATION -- THE RADIOLOGIST REALLY ISN'T IN A POSITION
16 TO WEIGH THE RISKS VERSUS BENEFITS OF PUTTING SOMEBODY TO
17 SLEEP FOR A SECOND M.R.I. WERE I IN THAT POSITION, I DON'T
18 KNOW WHAT I WOULD HAVE DECIDED.
19 Q. YOU WOULD HAVE BEEN CONFIDENT ENOUGH, BASED ON THAT
20 M.R.I. WITHOUT ANY FOLLOW UP, TO DECLARE THAT MR. ALLDREDGE
21 WAS DYING?
22 A. WITH THE CLINICAL CORRELATION, YES.
23 MR. MAJOR: NO FURTHER QUESTIONS.
24 THE COURT: ANYTHING FURTHER OF THIS WITNESS?
25 MR. STIRBA: NO, YOUR HONOR.
3416
1 THE COURT: NOW MAY HE BE EXCUSED?
2 MR. STIRBA: HE MAY.
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