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Trial Transcript Vols. 1- 3
1 IN THE DISTRICT COURT OF DAVIS COUNTY
STATE OF UTAH
3 *****
4 STATE OF UTAH, )
)
5 PLAINTIFF, )
) REPORTER'S TRANSCRIPT
6 VS. )
) CASE NO. 991700983
7 ROBERT ALLEN WEITZEL, )
)
8 DEFENDANT. )
9 *****
10
11 TRIAL - VOLUME 1 OF 21
12 JUNE 9, 2000
13 HONORABLE THOMAS L. KAY
14
15 *****
16 APPEARANCES:
17 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
18 MS. CHARLENE BARLOW
19 FOR THE DEFENDANT: MR. PETER STIRBA
MR. JOHN WARREN MAY
20
21
22
23
24
25
1 INDEX
2 WITNESSES PAGE
3 SHEILA K. HEWARD
DIRECT EXAMINATION BY MR. WILSON 86
4 VOIR DIRE EXAMINATION BY MR. STIRBA 90
DIRECT EXAMINATION, CONT'D BY MR. WILSON 91
5 CROSS-EXAMINATION BY MR. STIRBA 114
REDIRECT EXAMINATION BY MR. WILSON 130
6
SHEILA MOORE
7 DIRECT EXAMINATION BY MS. BARLOW 138
VOIR DIRE EXAMINATION BY MR. STIRBA 151
8 DIRECT EXAMINATION, CONT'D BY MS. BARLOW 152
DIRECT EXAMINATION, CONT'D BY MS. BARLOW 170
9
TODD CHAMBERS
10 DIRECT EXAMINATION BY MR. MAJOR 188
CROSS-EXAMINATION BY MR. STIRBA 233
11 REDIRECT EXAMINATION BY MR. MAJOR 268
RECROSS-EXAMINATION BY MR. STIRBA 270
12
WELBY NEAL JENSEN
13 DIRECT EXAMINATION BY MR. WILSON 271
DIRECT EXAMINATION, CONT'D BY MR. WILSON 333
14 CROSS-EXAMINATION BY MR. STIRBA 336
15 JOSEPH MORRISON
DIRECT EXAMINATION BY MR. WILSON 345
16
KATHY CHARLESWORTH
17 DIRECT EXAMINATION BY MR. WILSON 357
CROSS-EXAMINATION BY MR. STIRBA 379
18 REDIRECT EXAMINATION BY MR. WILSON 405
19 RACHEL STUBBS
DIRECT EXAMINATION BY MR. MAJOR 408
20 CROSS-EXAMINATION BY MR. STIRBA 434
VOIR DIRE EXAMINATION BY MR. MAJOR 436
21 CROSS-EXAMINATION, CONT'D BY MR. STIRBA 439
REDIRECT EXAMINATION BY MR. MAJOR 466
22 RECROSS-EXAMINATION BY MR. STIRBA 472
23 KAREN BRINGHURST
DIRECT EXAMINATION BY MR. WILSON 525
24 CROSS-EXAMINATION BY MR. STIRBA 552
REDIRECT EXAMINATION BY MR. WILSON 574
25 RECROSS-EXAMINATION BY MR. STIRBA 582
1 INDEX
2 WITNESSES PAGE
3 SCOTT SOUTHWORTH
DIRECT EXAMINATION BY MR. WILSON 583
4 CROSS-EXAMINATION BY MR. STIRBA 597
REDIRECT EXAMINATION BY MR. WILSON 613
5 RECROSS-EXAMINATION BY MR. STIRBA 616
6 SHARON OSSMEN SMITH
DIRECT EXAMINATION BY MR. WILSON 628
7 CROSS-EXAMINATION BY MR. STIRBA 650
REDIRECT EXAMINATION BY MR. WILSON 655
8
KENT DEAN SMITH
9 DIRECT EXAMINATION BY MR. WILSON 656
CROSS-EXAMINATION BY MR. STIRBA 670
10 REDIRECT EXAMINATION BY MR. WILSON 677
11 BONNIE SMITH WEIGHT
DIRECT EXAMINATION BY MR. WILSON 678
12 CROSS-EXAMINATION BY MR. STIRBA 690
13 MICHAEL H. SUMKO
DIRECT EXAMINATION BY MR. MAJOR 700
14 CROSS-EXAMINATION BY MR. STIRBA 725
15 ALAN J. ACORD
DIRECT EXAMINATION BY MR. MAJOR 738
16 CROSS-EXAMINATION BY MR. STIRBA 747
17 BARBARA POHLMAN
DIRECT EXAMINATION BY MR. MAJOR 768
18 CROSS-EXAMINATION BY MR. STIRBA 794
REDIRECT EXAMINATION BY MR. MAJOR 822
19
DIANE MARIAH
20 DIRECT EXAMINATION BY MR. MAJOR 825
21 SCOTT CUNNINGHAM
DIRECT EXAMINATION BY MR. MAJOR 853
22 CROSS-EXAMINATION BY MR. STIRBA 868
REDIRECT EXAMINATION BY MR. MAJOR 914
23 RECROSS-EXAMINATION BY MR. STIRBA 918
24
25
1 INDEX
2 WITNESSES PAGE
3 VONDA ALLDREDGE
DIRECT EXAMINATION BY MR. MAJOR 923
4 CROSS-EXAMINATION BY MR. STIRBA 940
REDIRECT EXAMINATION BY MR. MAJOR 949
5 RECROSS-EXAMINATION BY MR. STIRBA 953
6 GREGORY STEVENS
DIRECT EXAMINATION BY MR. WILSON 967
7 CROSS-EXAMINATION BY MR. STIRBA 982
REDIRECT EXAMINATION BY MR. WILSON 1000
8
JAMES PEARCE
9 DIRECT EXAMINATION BY MR. WILSON 1006
CROSS-EXAMINATION BY MR. STIRBA 1013
10 REDIRECT EXAMINATION BY MR. WILSON 1028
11 DAVID DIENHART
DIRECT EXAMINATION BY MR. WILSON 1045
12 CROSS-EXAMINATION BY MR. STIRBA 1093
REDIRECT EXAMINATION BY MR. WILSON 1138
13
ROBERT FELT BITNER
14 DIRECT EXAMINATION BY MR. WILSON 1141
CROSS-EXAMINATION BY MR. STIRBA 1150
15
NEAL CLINGER
16 DIRECT EXAMINATION BY MR. MAJOR 1156
CROSS-EXAMINATION BY MR. STIRBA 1174
17
STEVEN MEEK
18 DIRECT EXAMINATION BY MR. WILSON 1229
CROSS-EXAMINATION BY MR. STIRBA 1233
19
TRACY SCHOLL
20 DIRECT EXAMINATION BY MS. BARLOW 1238
VOIR DIRE EXAMINATION BY MR. STIRBA 1297
21 DIRECT EXAMINATION, CONT'D BY MS. BARLOW 1299
CROSS-EXAMINATION BY MR. STIRBA 1320
22 REDIRECT EXAMINATION BY MS. BARLOW 1353
23 DORENE KLEI
DIRECT EXAMINATION BY MS. BARLOW 1386
24 CROSS-EXAMINATION BY MR. STIRBA 1403
REDIRECT EXAMINATION BY MS. BARLOW 1411
25 RECROSS-EXAMINATION BY MR. STIRBA 1414
1 INDEX
2 WITNESSES PAGE
3 EARLENE COZZENS COOPER
DIRECT EXAMINATION BY MS. BARLOW 1417
4 DIRECT EXAMINATION, CONT'D BY MS. BARLOW 1480
CROSS-EXAMINATION BY MR. STIRBA 1536
5 REDIRECT EXAMINATION BY MS. BARLOW 1579
RECROSS-EXAMINATION BY MR. STIRBA 1585
6
RICHARD B. CLARK
7 DIRECT EXAMINATION BY MS. BARLOW 1590
CROSS-EXAMINATION BY MR. STIRBA 1596
8
BONITA HARDEY
9 DIRECT EXAMINATION BY MS. BARLOW 1604
DIRECT EXAMINATION, CONT'D BY MS. BARLOW 1719
10 CROSS-EXAMINATION BY MR. STIRBA 1758
REDIRECT EXAMINATION BY MS. BARLOW 1804
11 RECROSS-EXAMINATION BY MR. STIRBA 1814
FURTHER REDIRECT EXAMINATION BY MS. BARLOW 1815
12
PAUL R. JENSEN
13 DIRECT EXAMINATION BY MR. MAJOR 1816
CROSS-EXAMINATION BY MR. STIRBA 1834
14 REDIRECT EXAMINATION BY MR. MAJOR 1842
15 MARCEL BIBEAULT
DIRECT EXAMINATION BY MR. MAJOR 1843
16 CROSS-EXAMINATION BY MR. STIRBA 1845
REDIRECT EXAMINATION BY MR. MAJOR 1847
17 RECROSS-EXAMINATION BY MR. STIRBA 1848
18 HAROLD LARSEN
DIRECT EXAMINATION BY MR. WILSON 1850
19
MERLIN LARSEN
20 DIRECT EXAMINATION BY MR. WILSON 1862
CROSS-EXAMINATION BY MR. STIRBA 1886
21 REDIRECT EXAMINATION BY MR. WILSON 1899
RECROSS-EXAMINATION BY MR. STIRBA 1902
22
TODD CAMERON GREY
23 DIRECT EXAMINATION BY MR. MAJOR 1909
VOIR DIRE EXAMINATION BY MR. STIRBA 1931
24 DIRECT EXAMINATION, CONT'D BY MR. MAJOR 1932
CROSS-EXAMINATION BY MR. STIRBA 1976
25 REDIRECT EXAMINATION BY MR. MAJOR 2012
RECROSS-EXAMINATION BY MR. STIRBA 2026
1 INDEX
2 WITNESSES PAGE
3 MAUREEN JANE FRIKKE
DIRECT EXAMINATION BY MR. MAJOR 2028
4 CROSS-EXAMINATION BY MR. STIRBA 2047
REDIRECT EXAMINATION BY MR. MAJOR 2058
5
CHARLES FEHLAUER
6 DIRECT EXAMINATION BY MS. BARLOW 2182
VOIR DIRE EXAMINATION BY MR. STIRBA 2241
7 DIRECT EXAMINATION, CONT'D BY MS. BARLOW 2242
DIRECT EXAMINATION, CONT'D BY MS. BARLOW 2275
8 VOIR DIRE EXAMINATION BY MR. STIRBA 2305
DIRECT EXAMINATION, CONT'D BY MS. BARLOW 2306
9 DIRECT EXAMINATION, CONT'D BY MS. BARLOW 2386
CROSS-EXAMINATION BY MR. STIRBA 2444
10 REDIRECT EXAMINATION BY MS. BARLOW 2498
REDIRECT EXAMINATION, CONT'D BY MS. BARLOW 2515
11 RECROSS-EXAMINATION BY MR. STIRBA 2522
FURTHER REDIRECT EXAMINATION BY MS. BARLOW 2527
12
BRADFORD HARE
13 DIRECT EXAMINATION BY MR. WILSON 2529
CROSS-EXAMINATION BY MR. STIRBA 2634
14 REDIRECT EXAMINATION BY MR. WILSON 2718
RECROSS-EXAMINATION BY MR. STIRBA 2735
15
MICHAEL CROOKSTON
16 DIRECT EXAMINATION BY MR. WILSON 2747
CROSS-EXAMINATION BY MR. STIRBA 2815
17 REDIRECT EXAMINATION BY MR. WILSON 2859
RECROSS-EXAMINATION BY MR. STIRBA 2869
18 FURTHER REDIRECT EXAMINATION BY MR. WILSON 2875
19 LAUREL HERMANSON HERBST
DIRECT EXAMINATION BY MR. STIRBA 2966
20 CROSS-EXAMINATION BY MR. WILSON 3030
REDIRECT EXAMINATION BY MR. STIRBA 3095
21 RECROSS-EXAMINATION BY MR. WILSON 3098
22 LAURIE STEVENSON
DIRECT EXAMINATION BY MR. STIRBA 3102
23 CROSS-EXAMINATION BY MS. BARLOW 3174
CROSS-EXAMINATION, CONT'D BY MS. BARLOW 3201
24 REDIRECT EXAMINATION BY MR. STIRBA 3236
RECROSS-EXAMINATION BY MS. BARLOW 3241
25
1 INDEX
2 WITNESSES PAGE
3 ROBERT KEITH ROTHFEDER
DIRECT EXAMINATION BY MR. STIRBA 3243
4 VOIR DIRE EXAMINATION BY MR. MAJOR 3249
DIRECT EXAMINATION, CONT'D BY MR. STIRBA 3262
5 DIRECT EXAMINATION, CONT'D BY MR. STIRBA 3324
CROSS-EXAMINATION BY MR. MAJOR 3360
6 REDIRECT EXAMINATION BY MR. STIRBA 3408
RECROSS-EXAMINATION BY MR. MAJOR 3410
7 REDIRECT EXAMINATION BY MR. STIRBA 3411
RECROSS-EXAMINATION BY MR. MAJOR 3413
8
SHEILA HANSEN
9 DIRECT EXAMINATION BY MR. STIRBA 3420
CROSS-EXAMINATION BY MS. BARLOW 3442
10 REDIRECT EXAMINATION BY MR. STIRBA 3469
11 JOHN CANNON
DIRECT EXAMINATION BY MR. STIRBA 3470
12 CROSS-EXAMINATION BY MS. BARLOW 3489
REDIRECT EXAMINATION BY MR. STIRBA 3514
13 RECROSS-EXAMINATION BY MS. BARLOW 3518
14 ROBERT SUPERNAW
DIRECT EXAMINATION BY MR. STIRBA 3519
15 DIRECT EXAMINATION, CONT'D BY MR. STIRBA 3543
CROSS-EXAMINATION BY MS. BARLOW 3552
16 REDIRECT EXAMINATION BY MR. STIRBA 3574
RECROSS-EXAMINATION BY MS. BARLOW 3574
17
C. STRATTON HILL
18 DIRECT EXAMINATION BY MR. STIRBA 3576
CROSS-EXAMINATION BY MR. WILSON 3608
19 REDIRECT EXAMINATION BY MR. STIRBA 3641
20 ROBERT WEITZEL
DIRECT EXAMINATION BY MR. STIRBA 3745
21 CROSS-EXAMINATION BY MR. WILSON 3843
REDIRECT EXAMINATION BY MR. STIRBA 4041
22
BRADFORD HARE
23 DIRECT EXAMINATION BY MR. WILSON 4085
CROSS-EXAMINATION BY MR. STIRBA 4117
24 REDIRECT EXAMINATION BY MR. WILSON 4125
25
1 INDEX
2 WITNESSES PAGE
3 BARBARA POHLMAN
DIRECT EXAMINATION BY MR. MAJOR 4169
4 CROSS-EXAMINATION BY MR. STIRBA 4172
REDIRECT EXAMINATION BY MR. MAJOR 4176
5 RECROSS-EXAMINATION BY MR. STIRBA 4177
6 JAY POHLMAN
DIRECT EXAMINATION BY MR. MAJOR 4180
7 CROSS-EXAMINATION BY MR. STIRBA 4185
8 BONITA HARDEY
DIRECT EXAMINATION BY MS. BARLOW 4188
9
MICHAEL CROOKSTON
10 DIRECT EXAMINATION BY MR. WILSON 4194
CROSS-EXAMINATION BY MR. STIRBA 4202
11
CHARLES STEVEN FEHLAUER
12 DIRECT EXAMINATION BY MS. BARLOW 4207
CROSS-EXAMINATION BY MR. STIRBA 4223
13 REDIRECT EXAMINATION BY MS. BARLOW 4230
RECROSS-EXAMINATION BY MR. STIRBA 4234
14
ROBERT KEITH ROTHFEDER
15 DIRECT EXAMINATION BY MR. STIRBA 4241
CROSS-EXAMINATION BY MR. MAJOR 4244
16 REDIRECT EXAMINATION BY MR. STIRBA 4251
RECROSS-EXAMINATION BY MR. MAJOR 4253
17
18
19
20
21
22
23
24
25
9
1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 THE COURT: OKAY. PLEASE BE SEATED. THIS IS THE
3 CASE OF THE STATE OF UTAH VERSUS ROBERT ALLEN WEITZEL. THE
4 RECORD SHOULD REFLECT THAT THE ATTORNEYS FOR THE PARTIES ARE
5 ALL PRESENT, THE DEFENDANT IS PRESENT AND ALL THE JURORS ARE
6 PRESENT. AND I WOULD JUST LIKE TO EXPRESS TO THE JURY, I'M
7 VERY GRATEFUL THAT YOU WERE ON TIME. I THINK OUR FIRST
8 JUROR GOT HERE AT FIVE MINUTES TO EIGHT AND THE LAST ONE AT
9 25 AFTER WHICH I ASKED YOU AND I VERY MUCH APPRECIATE THAT
10 AND COUNSEL.
11 MEMBERS THE JURY, WE ARE ABOUT TO BEGIN THE TRIAL OF
12 THIS CASE. YOU MAY HAVE HEARD SOME DETAILS ABOUT THE CASE
13 DURING THE PROCESS OF JURY SELECTION. BEFORE THE TRIAL
14 BEGINS, HOWEVER, THERE ARE CERTAIN INSTRUCTIONS YOU SHOULD
15 HAVE TO BETTER UNDERSTAND WHAT WILL BE PRESENTED TO YOU AND
16 HOW YOU SHOULD CONDUCT YOURSELF DURING THIS TRIAL. THE
17 PARTY WHO BRINGS THE LAWSUIT IS CALLED THE PLAINTIFF...
18 (WHEREUPON PRELIMINARY JURY INSTRUCTIONS WERE READ.)
19 THE COURT: AND I WOULD JUST ADD, LADIES AND
20 GENTLEMEN, WHAT I'VE SAID TO YOU BEFORE AND WHAT I'VE SAID
21 TO THE ATTORNEYS IS THAT I WANT TO START ON TIME AND I WANT
22 TO END ON TIME. AND IF THE ATTORNEYS HAVE THINGS THAT THEY
23 NEED TO DISCUSS WITH ME, WE WANT TO DISCUSS THOSE THINGS
24 WHEN YOU ARE EITHER AT LUNCH OR BEFORE YOU GET HERE OR AFTER
25 YOU LEAVE. AND SO HOPEFULLY THE TIMES THAT YOU'LL BE --
10
1 HOPEFULLY ALL THE TIME THAT YOU ARE GOING TO BE HERE OTHER
2 THAN BREAKS AND FOR LUNCH ARE GOING TO BE HERE IN THE
3 COURTROOM HEARING EVIDENCE. THE CASE WILL PROCEED IN THE
4 FOLLOWING ORDER:
5 (WHEREUPON PRELIMINARY JURY INSTRUCTIONS CONTINUED.)
6 THE COURT: SO, MS. BARLOW, IF YOU WISH TO GIVE
7 YOUR OPENING STATEMENT.
8 MS. BARLOW: THANK YOU, YOUR HONOR.
9 MAY IT PLEASE THE COURT, LADIES AND GENTLEMEN OF THE
10 JURY. ON BEHALF OF THE STATE OF UTAH, I WOULD LIKE TO THANK
11 YOU FOR YOUR WILLINGNESS TO SERVE HERE TODAY. AS INDICATED,
12 I THINK THAT WE'VE ALL INTRODUCED OURSELVES DURING THE
13 COURSE OF JURY SELECTION BUT I WOULD LIKE TO REINTRODUCE THE
14 TEAM, AS IT WERE, FOR THE STATE HERE. MEL WILSON IS SEATED
15 OVER HERE, HE'S THE DAVIS COUNTY ATTORNEY AND HE IS LEAD
16 COUNSEL IN THIS MATTER FOR THE STATE. MY NAME IS CHARLENE
17 BARLOW, I'M ASSISTING. STEVE MAJOR IS A DEPUTY COUNTY
18 ATTORNEY WHO IS ALSO ASSISTING MR. WILSON IN THIS CASE.
19 I WANT TO THANK YOU FOR BEING HERE. IT IS PART OF THE
20 BEAUTY OF OUR CONSTITUTIONAL SYSTEM THAT WE HAVE THIS
21 SYSTEM. YOU -- I MEAN, PROBABLY NONE OF US THOUGHT THIS IS
22 THE WAY WE WOULD BE SPENDING THE FIRST PART OF OUR SUMMER,
23 BUT THIS IS A CONSTITUTIONAL RIGHT THAT IS PROVIDED FOR A
24 TRIAL BY JURY AND A SPEEDY TRIAL BY JURY. AND SO WE'RE
25 GOING TO TRY AND KEEP THIS WITH ALL DELIBERATE SPEED MOVING
11
1 ALONG SO THAT YOU CAN HEAR THE EVIDENCE THAT COMES IN SO
2 THAT YOU CAN UNDERSTAND WHAT HAS HAPPENED IN THIS MATTER.
3 YOU'LL SEE THAT THERE ARE ATTORNEYS ON BOTH SIDES.
4 YOU'LL SEE THERE ARE A NUMBER OF ATTORNEYS ON BOTH SIDES.
5 THIS IS A VERY SERIOUS CASE. WE ARE TALKING ABOUT CHARGES
6 OF HOMICIDE. NOBODY TAKES THOSE CHARGES LIGHTLY ON EITHER
7 SIDE. THIS WAS AN EXTENSIVE CASE. THERE ARE FIVE VICTIMS
8 IN THIS MATTER. THERE WAS AN EXTENSIVE INVESTIGATION.
9 THERE WILL BE MANY WITNESSES THAT YOU WILL SEE OVER THE
10 COURSE OF THE NEXT FEW WEEKS. AND BECAUSE OF THAT,
11 SOMETIMES YOU MAY SEE ONE OR THE OTHER OF THE ATTORNEYS THAT
12 ARE NOT HERE AND YOU MIGHT BE, WELL, WHERE ARE THEY? I'M
13 SITTING HERE, WHY AREN'T THEY SITTING HERE? BUT IN ORDER TO
14 KEEP THE CASE MOVING SMOOTHLY AND TO MAKE SURE THE WITNESSES
15 ARE AVAILABLE AND HERE AND EVERYTHING CAN KEEP MOVING
16 SMOOTHLY, THERE ARE TIMES WHEN MAYBE ONE OR THE OTHER OF US
17 MAY NOT BE HERE, BUT REST ASSURED WE WILL BE WORKING ON THE
18 CASE.
19 YOU MAY HAVE WONDERED AS YOU READ THE JURY
20 QUESTIONNAIRE THAT YOU FILLED OUT, YOU KNOW, WHAT IS THIS
21 CASE ABOUT? AND SOME OF THE QUESTIONS MIGHT MAKE YOU THINK,
22 WELL, YOU KNOW, MAYBE IT'S ABOUT THIS OR MAYBE IT'S ABOUT
23 THAT. I WANT TO TELL YOU A FEW THINGS THAT MIGHT HAVE BEEN
24 RAISED IN THE JURY QUESTIONNAIRE IN YOUR MIND THAT IT'S NOT
25 ABOUT.
12
1 THIS IS NOT A CASE ABOUT ASSISTED SUICIDE. THIS IS NOT
2 A MATTER OF ANYONE COMING TO THE DEFENDANT AND SAYING I
3 DON'T LIKE MY LIFE ANYMORE, WOULD YOU PLEASE HELP ME END IT.
4 THERE'S NO EVIDENCE OF THAT. SO PLEASE SET ASIDE ANY
5 THOUGHT OF IS THIS AN ASSISTED SUICIDE CASE. IT IS NOT.
6 IT'S NOT A CASE ABOUT MERCY KILLING, EITHER. MERCY
7 KILLING IS THE IMPRESSION OF, YOU KNOW, THIS POOR PERSON'S
8 LIFE IS NOT GOOD, I FEEL SORRY FOR THEM, I WILL HELP THEM
9 LEAVE THIS LIFE BECAUSE THEIR LIFE IS SO UNHAPPY OR
10 UNPLEASANT, THEIR QUALITY OF LIFE IS SO POOR. THAT PRESUMES
11 AN ATTITUDE ON THE PART OF THE PERSON HELPING OF BEING
12 MERCIFUL, AND I THINK OUR EVIDENCE IS GOING TO SHOW YOU THAT
13 ATTITUDE IS NOT PRESENT IN THIS CASE.
14 IT IS A CASE ABOUT EUTHANASIA. IT IS A CASE ABOUT
15 HASTENING DEATH. EUTHANASIA IS NOT LAWFUL IN THE STATE OF
16 UTAH. SOMEONE'S LIFE MAY BE VERY POOR QUALITY, SOMEONE MAY
17 BE DEMENTED, SOMEONE MAY BE IN A LOT OF PROBLEMS AND A LOT
18 OF TROUBLE AND MAY NOT BE HAPPY WITH THEIR LIFE OR MAY NOT
19 EVEN BE AWARE OF WHAT THEIR LIFE IS, BUT THE LAW DOES NOT
20 ALLOW ANYONE TO TAKE THEIR LIFE, NO MATTER HOW POOR THE
21 QUALITY OF LIFE MAY BE. AND I'M NOT SAYING THAT THE QUALITY
22 OF LIFE IN THESE PEOPLE WAS THAT POOR. BUT I WANT TO LET
23 YOU KNOW THE STATE DOES NOT ALLOW ANYONE TO TAKE SOMEONE
24 ELSE'S LIFE JUST BECAUSE THEIR QUALITY OF LIFE IS NOT WHAT
25 SOMEONE ELSE THINKS IT OUGHT TO BE.
13
1 EVIDENCE IS GOING TO COME IN WITNESS BY WITNESS. WE
2 HAVE TELEVISION MONITORS HERE. YOU WON'T BE WATCHING THE
3 SHOW. YOU WON'T BE WATCHING, YOU KNOW, SOMETHING THAT'S
4 GOING TO BE WRAPPED UP IN A HALF OR OUR HOUR LONG OR EVEN A
5 TWO-HOUR MOVIE. YOU WON'T BE WATCHING SOMETHING WHERE YOU
6 CAN PICTURE HOW THINGS HAPPEN BECAUSE THAT'S THE WAY THEY
7 SHOW IT ON TV. YOU ARE GOING TO BE HEARING WHAT HAPPENED
8 WITNESS BY WITNESS. WE'RE GOING TO DO OUR BEST TO MAKE IT A
9 VERY LOGICAL PROGRESSION WITH THE WITNESSES, BUT, YOU KNOW,
10 ONE PERSON WILL SEE THIS PART OF IT BUT THEY WON'T SEE
11 ANOTHER PART OF IT, SO ANOTHER WITNESS WILL COME IN AND SAY
12 I SAW THIS OTHER PART OF IT. SO YOU'RE GOING TO HAVE TO
13 LISTEN CAREFULLY AND NOT FORM ANY OPINION BUT TO LISTEN
14 CAREFULLY ALL THE WAY THROUGH AND SAY, OKAY, THIS WITNESS
15 TOLD ME THIS, THIS WITNESS TOLD ME THAT. BUT THAT'S THE WAY
16 IT'S GOING TO COME TOGETHER. AND, AGAIN, WE'RE GOING TO TRY
17 TO MAKE IT JUST AS LOGICAL AS POSSIBLE SO, YOU KNOW, WE HAVE
18 A PROGRESSION THERE AND IT MAKES SENSE TO YOU AS WE'RE GOING
19 FORWARD.
20 YOU WILL HEAR FROM EXPERT WITNESSES. YOU WILL HEAR
21 FROM DOCTORS AND NURSES WHO WERE NOT INVOLVED IN THIS CASE
22 OTHER THAN AS WHAT'S CALLED AN EXPERT WITNESS. THEY HAVE
23 BEEN GIVEN INFORMATION, THEY HAVE LOOKED AT THAT
24 INFORMATION, THEY HAVE FORMULATED CERTAIN OPINIONS ABOUT
25 WHAT HAPPENED IN THIS MATTER WHICH THEY WILL GIVE TO YOU AND
14
1 THEN YOU WILL MAKE THE FINAL DETERMINATION. I MEAN, WE'RE
2 ALL HERE -- YOU KNOW, THE JUDGE HAS HIS ROLE, WE HAVE OUR
3 ROLE, DEFENSE HAS THEIR ROLE. YOU HAVE THE MOST IMPORTANT
4 ROLE IN THIS MATTER AND THAT IS TO DECIDE WHERE THE TRUTH
5 LIES, WHETHER THE DEFENDANT IS GUILTY OR NOT. AND PART OF
6 THAT, PART OF WHAT YOU WILL NEED TO DECIDE IS WHAT MENTAL
7 STATE DID THE DEFENDANT HAVE WHEN HE DID THE THINGS THAT HE
8 DID.
9 YOU WILL GET INSTRUCTIONS FROM THE COURT ON THIS AND
10 THEY WILL EXPLAIN TO YOU WHAT MENTAL STATE MEANS. I THINK
11 WE ALL UNDERSTAND WHAT A MENTAL STATE IS. IN THE LAW IT'S
12 CALLED A CULPABLE STATE. IT'S A MENTAL STATE OF, YOU KNOW,
13 YOU KIND OF KNOW WHAT YOU ARE DOING. THESE CHARGES ARE
14 BASED ON THREE POSSIBLE MENTAL STATES AND YOU WILL BE THE
15 ONES TO DECIDE WHETHER ANY OR ALL OF THESE MEET THE MENTAL
16 STATES FIT IN THIS CIRCUMSTANCE.
17 THE FIRST IS INTENT AND THE JURY INSTRUCTION WILL TELL
18 YOU WITH MUCH MORE SPECIFICITY BUT INTENT IS DEFINED AS A
19 CONSCIOUS OBJECTIVE TO DO THE CONDUCT OR CAUSE THE RESULT.
20 SO THAT IS ONE OF THE MENTAL STATES WE'LL BE PRESENTING TO
21 YOU.
22 ANOTHER MENTAL STATE THAT -- AND IF YOU DON'T THINK
23 IT'S INTENTIONAL, YOU MIGHT FIND THAT IT'S KNOWING, AND
24 KNOWINGLY IS BEING DEFINED AS BEING AWARE THAT THE CONDUCT
25 IS REASONABLY CERTAIN TO CAUSE A PARTICULAR RESULT. SO
15
1 WE'LL ASK YOU TO LOOK AND SEE IF THERE'S EVIDENCE THAT
2 PERHAPS THIS CONDUCT WAS DONE KNOWINGLY.
3 AND FINALLY, THERE IS THE THIRD MENTAL STATE AND THAT
4 IS CALLED DEPRAVED INDIFFERENCE, LEGAL TERMS. BUT AS
5 DEFINED IT'S THE DEFENDANT DOES CERTAIN CONDUCT CREATED
6 TO -- EXCUSE ME -- CONDUCT THAT CREATES A GRAVE RISK OF
7 DEATH AND THEN DOES CAUSE THE DEATH BY THAT CONDUCT.
8 AGAIN, I'M JUST GIVING YOU AN OVERVIEW OF THAT. IN
9 FACT, I'LL BE JUST GIVING YOU AN OVERVIEW OF EVIDENCE TODAY.
10 I'M NOT GOING TO HIT ON EVERY PIECE OF EVIDENCE YOU'RE GOING
11 TO HEAR IN THE NEXT SEVERAL WEEKS, YOU KNOW. I CLEARLY
12 COULDN'T DO THAT. BUT IN ORDER TO GIVE YOU AN OVERVIEW OF
13 WHAT WE'RE LOOKING AT HERE, WE'RE LOOKING AT THE DEATHS OF
14 FIVE PEOPLE AND WE'RE LOOKING AT CERTAIN MENTAL STATES ON
15 BEHALF OF THE DEFENDANT AS THESE DEATHS WERE CAUSED.
16 THESE HAPPENED AT DAVIS NORTH HOSPITAL IN WHAT IS
17 CALLED THE GEROPSYCH UNIT, THE GEROPSYCHIATRIC UNIT. GERO
18 IS FROM THE ROOT OF GERIATRIC DEALING WITH ELDERLY PEOPLE.
19 PSYCHIATRIC, WE KNOW WHAT THAT IS. THE PURPOSE OF THE
20 GEROPSYCH UNIT -- IT WAS SET UP I GUESS IT WAS MID 1994 AND
21 YOU'LL HEAR EVIDENCE THAT, YOU KNOW, THERE WASN'T A
22 GEROPSYCH UNIT IN THE SURROUNDING STATES AND SO THERE WAS A
23 DECISION TO CREATE A GEROPSYCH UNIT AND IT WAS DONE THERE IN
24 DAVIS HOSPITAL.
25 YOU'LL HEAR THAT THERE'S KIND OF A DIVISION OF
16
1 RESPONSIBILITIES AS IT WERE. THE HOSPITAL HIRED THE NURSES
2 AND CONTROLLED THE NURSES. THE GEROPSYCH UNIT WAS MANAGED
3 BY A PSYCHIATRIST WHO WAS HIRED BY A COMPANY CALLED HORIZON.
4 AND HORIZON EVIDENTLY HAS SET UP THESE UNITS IN OTHER AREAS,
5 CAME IN HERE SAID WE'VE GOT THIS GREAT IDEA FOR A UNIT, WE
6 WILL HIRE THE PSYCHIATRIST, WE WILL RUN THE UNIT, MANAGE --
7 THIS PSYCHIATRIST WILL MANAGE THE UNIT, YOU'LL PROVIDE THE
8 NURSES AND WE'LL HAVE A UNIT THAT -- THE PURPOSE OF THIS
9 UNIT WILL BE TO HELP ELDERLY PEOPLE WHOSE BEHAVIOR IS
10 CAUSING SUCH PROBLEMS THAT PERHAPS THEY CAN'T STAY IN THE
11 SETTING WHERE THEY ALREADY ARE.
12 YOU KNOW, UNFORTUNATELY AS WE GET OLDER, OUR MEMORIES
13 GO, YOU KNOW, TO DIFFERING DEGREES. AND UNFORTUNATELY OUR
14 HUMAN BODIES ARE SUCH THAT SOMETIMES THE MEMORIES GO VERY
15 POORLY. THIS IS CALLED DEMENTIA. IT'S ALSO CALLED
16 ALZHEIMERS. YOU KNOW, WHETHER IT'S SENILE DEMENTIA OR
17 ALZHEIMERS, THAT'S NOT REALLY THE POINT HERE. BUT THE POINT
18 IS WE HAVE PEOPLE THAT IN THE COURSE OF THEIR LIVES START TO
19 LOSE THEIR RECOLLECTION, LOSE THEIR MEMORY, LOSE THEIR
20 ABILITY TO PERFORM DAILY FUNCTION, DAILY LIVING MATTERS, YOU
21 KNOW, AND DIFFERENT THINGS ARE DONE IN THOSE CIRCUMSTANCES.
22 SOMETIMES PEOPLE ARE ABLE TO KEEP THEM AT HOME. OTHER TIMES
23 THEY ARE ABLE TO KEEP THEM AT HOME FOR A WHILE BUT THEN THEY
24 JUST CAN'T HANDLE WHAT'S GOING ON ANY LONGER AND PUT THEM
25 INTO A LONG-TERM CARE FACILITY.
17
1 DEMENTIA IS SUCH THAT IT'S A GRADUAL ONSET. IT'S A
2 GRADUAL DECLINING OF A PERSON'S ABILITY. YOU'LL HEAR
3 EXPERTS TESTIFY AS TO -- AND THEY'VE BEEN ABLE TO PRETTY
4 MUCH CHART, YOU KNOW, IF A PERSON CAN DO THESE THINGS BUT IS
5 KIND OF LOSING IT A LITTLE BIT, YOU KNOW. THEY MAY HAVE
6 ANOTHER 12, 15, 20 YEARS TO LIVE. A PERSON AS THEY
7 GRADUALLY LOSE THEIR ABILITY TO FUNCTION IN -- NOT JUST IN
8 SOCIETY BUT JUST IN DAILY LIVING AND THEY CAN CHART HOW, YOU
9 KNOW, WHICH ABILITIES GO AT WHAT POINT UNTIL, YOU KNOW, YOU
10 GET TO THE POINT WHERE THEY CAN NO LONGER EVEN SIT UP. AND
11 IF THEY CAN NO LONGER EVEN SIT UP, DEATH IS VERY IMMINENT.
12 AND ONE OF THEM IS EVEN LOSING THE ABILITY TO SMILE, THAT'S
13 ONE OF THE LAST THINGS TO GO IS THE ABILITY TO SMILE. AND
14 SO YOU HAVE DEMENTIA, BUT THAT ISN'T WHAT THE GEROPSYCH UNIT
15 WAS FOR.
16 LONG-TERM CARE FACILITIES TAKE CARE OF PEOPLE WHO
17 BECOME DEMENTED. BUT UNFORTUNATELY WHAT HAPPENS SOMETIMES
18 IN PEOPLE WHO ARE LOSING THEIR ABILITY TO FUNCTION THERE IS
19 AN ACUTE -- I MEAN, THIS IS CALLED CHRONIC. IT'S SOMETHING
20 THAT LASTS OVER TIME. YOU ARE NOT GOING TO BE ABLE TO CURE
21 IT AND THAT'S WHY IT'S CALLED CHRONIC. THAT'S A MEDICAL
22 TERM THAT I'VE LEARNED OVER THE LAST LITTLE WHILE.
23 BUT SOMETIMES WITH PEOPLE, EVEN THOUGH THEY HAVE THIS
24 CHRONIC PROBLEM AND THEY ARE GRADUALLY DECLINING, SOME
25 PEOPLE WILL HAVE AN ACUTE EVENT, AN EVENT THAT COMES
18
1 SUDDENLY, AN EVENT THAT IS NOT JUST THIS GRADUAL DECLINE,
2 BUT SUDDENLY SOMETHING HAPPENS AND THEIR BEHAVIOR REALLY
3 CHANGES AND THAT'S WHAT WE HAD WITH THESE FIVE PEOPLE. YOU
4 KNOW, IT MIGHT BE A HIP FRACTURE, IT MIGHT BE A FALL AND A
5 LACERATION ON THE HEAD. IT MIGHT BE A STROKE, YOU KNOW,
6 THERE MIGHT BE SOME EVENT THAT TRIGGERS SOME BEHAVIOR
7 CHANGES. AND SO INSTEAD OF BEING ABLE TO STAY IN A
8 LONG-TERM CARE FACILITY, WHICH BLESS THEIR HEARTS, AS MUCH
9 AS THEY WANT TO AND AS GOOD AS THEY ARE, CANNOT GIVE A LOT
10 OF ONE-ON-ONE. I MEAN, THEY HAVE AS MUCH STAFF AS THEY CAN
11 GET AND AS GOOD AS STAFF AS THEY CAN GET IN LONG-TERM CARE
12 FACILITIES AND THEY TRY TO GIVE THE BEST CARE THAT THEY CAN,
13 BUT THEY JUST LITERALLY CANNOT GIVE A LOT OF ONE-ON-ONE WITH
14 PEOPLE WHO ARE LOSING THEIR ABILITY TO FUNCTION.
15 SO THE GEROPSYCH UNIT WAS SET UP, TEN BEDS ON THIS UNIT
16 AND THERE WOULD BE ANYWHERE FROM TWO TO THREE NURSES. THERE
17 WERE A LOT OF SOCIAL WORKERS, YOU KNOW, THEY WOULD DO GROUP
18 THERAPY. THERE WAS THE ABILITY TO HAVE A LOT MORE
19 ONE-ON-ONE IN THIS GEROPSYCH UNIT. SO A LONG-TERM CARE
20 FACILITY MIGHT HAVE AN INDIVIDUAL IN THERE WHO ALL OF A
21 SUDDEN HAS AN ACUTE EVENT, BEHAVIOR BECOMES VERY POOR, THEY
22 ARE COMBATIVE, THEY ARE AGITATED, THEY BECOME DEPRESSED,
23 SOMETHING HAPPENS AND THE LONG-TERM CARE FACILITY SAYS, YOU
24 KNOW, WE'RE NOT GOING TO BE ABLE TO CONTINUE TO HELP THIS
25 PERSON BECAUSE WE CAN'T DO AS MUCH ONE-ON-ONE AS THIS PERSON
19
1 NEEDS.
2 SO THE GEROPSYCH UNIT WAS ESTABLISHED TO MOVE THESE
3 PEOPLE INTO THAT UNIT FOR TWO TO THREE WEEKS. IT WAS NEVER
4 INTENDED TO BE LONG-TERM. MOVE THEM INTO THAT UNIT WHERE
5 THEY GET ONE-ON-ONE, THEY CAN GET GROUP THERAPY, THEIR
6 MEDICATIONS CAN BE ADJUSTED BECAUSE YOU'LL HEAR EXPERTS WHO
7 WILL SAY THAT THERE ARE TIMES WHEN THAT THE MEDICATION THAT
8 THE ELDERLY ARE USING BECAUSE THEY ARE ELDERLY AND THERE'S A
9 DIFFERENT EFFECT, YOU KNOW, BECAUSE MEDICATIONS IN THE
10 ELDERLY BUILD UP, THEY DON'T DISSIPATE AS QUICKLY.
11 SOMETIMES THESE MEDICATIONS CAN CAUSE THE VERY PROBLEM THAT
12 WE WANT TO DEAL WITH, THE AGITATION.
13 PSYCHOTROPIC DRUGS CAN CAUSE THE AGITATION THAT THEY
14 ARE MEANT TO CONTROL. SO YOU HAVE SOMEONE WHO IS COMBATIVE,
15 WHO IS DIFFICULT TO HANDLE, PUT THEM INTO THE GEROPSYCH
16 UNIT, ADJUST THEIR MEDICATIONS -- IN FACT, YOU KNOW, YOU'LL
17 HEAR TESTIMONY EVEN GIVE THEM A DRUG HOLIDAY. TAKE AWAY ALL
18 OF THEIR MEDICATIONS TO SEE IF SOMETHING IN THEIR MEDICATION
19 IS TRIGGERING WHAT THIS PROBLEM IS. SO ADJUST THEIR
20 MEDICATIONS, TRY TO ADJUST THEIR BEHAVIOR, GET -- AND IN
21 OTHER TIMES YOU DO GIVE THEM MEDICATION TO ADJUST THE
22 BEHAVIOR.
23 I'M NOT SAYING THAT GIVING MEDICATIONS NECESSARILY
24 CAUSES THE PROBLEMS. SOMETIMES IT DOES SOLVE THE PROBLEM.
25 BUT GET THEIR BEHAVIOR ADJUSTED SO THAT THEY CAN GO BACK TO
20
1 THE LONG-TERM CARE FACILITY OR BACK TO THEIR HOME AND BE
2 SOMEONE THAT YOU CAN WORK WITH, SOMEONE THAT IS NOT GOING TO
3 BE HITTING OR STRIKING, BITING, KICKING OR UNFORTUNATELY
4 SOME OF THE OTHER THINGS THAT WERE GOING ON.
5 THE GEROPSYCH UNIT WAS A TWO TO THREE-WEEK STAY. IN
6 FACT, YOU KNOW, THE DEFENDANT DID THE PSYCHOLOGICAL
7 EVALUATION ON ALL FIVE PEOPLE THAT WE'RE DEALING WITH IN
8 THIS TRIAL AND EACH TIME HE SAID HE EXPECTED THEM TO STAY
9 TWO TO THREE WEEKS. HE EXPECTED THEM TO GO BACK TO THE
10 LONG-TERM CARE FACILITY WITH A CHANGE IN BEHAVIOR, A CHANGE
11 IN MOOD. YOU WILL SEE THAT BECAUSE RECORDS WILL BE
12 PRESENTED TO YOU AS EVIDENCE. THIS IS NOT A HOSPICE
13 CIRCUMSTANCE.
14 NOW WHAT'S A HOSPICE? A HOSPICE IS A MEDICAL UNIT THAT
15 HAS COME UP OVER THE LAST FEW YEARS. THERE ARE PEOPLE WHO,
16 YOU KNOW, PERHAPS HAVE CANCER OR DEMENTIA THAT ARE SO CLOSE
17 TO THE END OF THEIR LIVES THAT YOU NEED TO PUT THEM IN A
18 CARE CIRCUMSTANCE WHERE THEY CAN BE KEPT COMFORTABLE, YOU
19 KNOW YOU ARE NOT GOING TO MAKE THIS PERSON BETTER. THEY MAY
20 BE IN EXTREME PAIN. I MEAN, OFTEN CANCER PATIENTS ARE IN
21 HOSPICE CIRCUMSTANCES TOWARD THE END OF THEIR LIFE. IF IT'S
22 INCURABLE, THEY MAY BE IN EXTREME PAIN AND IN A HOSPICE
23 SITUATION YOU ARE GIVING THEM MEDICATION TO COMFORT THEM.
24 YOU ARE GIVING THEM MEDICATION TO ALLEVIATE THE PAIN, TO TRY
25 TO MAKE THEIR LAST DAYS AS COMFORTABLE AS POSSIBLE. THIS
21
1 UNIT WAS NOT HOSPICE. IT WAS NOT INTENDED TO BE SOMEPLACE
2 TO KEEP THE DYING COMFORTABLE.
3 IT WAS NOT A MEDICAL UNIT. IT WAS NOT A PLACE WHERE
4 PEOPLE WHO HAD SEVERE MEDICAL PROBLEMS THAT NEEDED ATTENTION
5 FROM A MEDICAL DOCTOR WERE PLACED. IT WAS A PSYCHIATRIC
6 UNIT, WE WANT TO WORK ON BEHAVIOR. IF SOMEONE HAS AN ACUTE
7 MEDICAL PROBLEM, THEY WERE NOT SUPPOSED TO BE ON THAT UNIT.
8 THEY SHOULD HAVE BEEN IN THE HOSPITAL AND IT WAS PART OF THE
9 HOSPITAL, THIS UNIT. THEY SHOULD HAVE BEEN IN THE HOSPITAL
10 TO TAKE CARE OF THAT MEDICAL PROBLEM. IF THEY HAD A STROKE,
11 IF THEY HAD A HEART ATTACK, PUT THEM IN THE MEDICAL UNIT
12 WHERE THEY CAN TAKE CARE OF THAT PROBLEM.
13 YOU'LL HEAR FROM DR. WELBY JENSEN WHO WAS THE FIRST
14 DOCTOR TO BECOME THE DIRECTOR OF THIS UNIT. YOU WILL HEAR
15 FROM THE NURSES ON THE UNIT. THE MAJORITY OF THE NURSES AND
16 THE ONES WE'VE BEEN ABLE TO FIND, YOU WILL HEAR FROM THEM.
17 AS I INDICATED, THE DOCTORS WHO RAN THIS UNIT WERE
18 PSYCHIATRISTS.
19 NOW, PSYCHOLOGISTS AND PSYCHIATRISTS, YOU KNOW, ARE
20 TERMS YOU HEAR ALMOST USED INTERCHANGEABLY. THEY ARE NOT
21 THE SAME. A PSYCHOLOGIST GETS A PH.D. IN PSYCHOLOGY. A
22 PSYCHIATRIST GETS A MEDICAL DEGREE JUST AS ANY OTHER DOCTOR
23 BUT THEN SPECIALIZES IN PSYCHIATRY. SO A PSYCHIATRIST CAN
24 PRESCRIBE MEDICINE, A PSYCHOLOGIST CANNOT. SO AS YOU HEAR
25 THOSE TERMS, YOU WILL UNDERSTAND THAT, YOU KNOW, THE
22
1 DEFENDANT AS A PSYCHIATRIST DID HAVE A MEDICAL DEGREE,
2 ALTHOUGH HE HAD SPECIALIZED IN PSYCHIATRY.
3 YOU'LL HEAR ABOUT PATIENT CARE. CLEARLY THESE FIVE
4 PEOPLE WHO DIED WERE NOT THE ONLY PATIENTS THAT WERE ON THIS
5 UNIT FROM 1994 ON. THESE ARE THE ONES WE'LL BE TALKING
6 ABOUT BUT YOU WILL HEAR THAT THE PEOPLE WHO CAME IN, MOST
7 BUT NOT ALL, WERE DEMENTED. MOST BUT NOT ALL OF THESE FIVE
8 PEOPLE WERE DEMENTED AND DEMENTIA IS A TERMINAL ILLNESS BUT
9 IT'S NOT ONE THAT'S GOING TO TAKE YOU INTO A FEW WEEKS
10 USUALLY, UNLESS YOU ARE AT THE VERY END OF THE DEMENTIA AND
11 YOU CAN NO LONGER SMILE, NO LONGER SIT UP, THAT SORT OF
12 THING. THESE PEOPLE WERE NOT THAT DEMENTED. THEY WERE NOT
13 AT THE END OF THIS DEMENTIA SCALE.
14 THE DEFENDANT WOULD GIVE THEM A PSYCHOLOGICAL
15 EVALUATION AND ON EACH ONE OF THEM. HE WOULD SAY TWO TO
16 THREE WEEKS WE EXPECT THEM TO BE HERE AND THEN THEY'LL GO
17 BACK TO THE LONG-TERM CARE CENTER WITH THEIR BEHAVIOR UNDER
18 CONTROL. NONE OF THESE PEOPLE WERE TERMINAL WHEN THEY CAME
19 IN, NONE WERE HOSPICE. THE NURSES WERE ON THE FRONT LINES
20 IN THIS MATTER, AS YOU CAN IMAGINE. THE NURSES ARE THE ONES
21 WHO ARE THERE FOR THE FULL SHIFT AND MOST OF YOU KNOW HOW
22 DOCTORS COME IN AND OUT AND THAT'S, YOU KNOW, PRETTY
23 STANDARD.
24 BUT WHAT YOU'LL HEAR IS THAT THE DEFENDANT WOULD COME
25 IN EITHER REALLY, REALLY EARLY, MAYBE FIVE OR 5:30 IN THE
23
1 MORNING. ESPECIALLY DURING THE WINTER WHEN HE WANTED TO GO
2 SKIING, HE WOULD COME IN AT FIVE OR 5:30 IN THE MORNING OR
3 HE WOULD COME IN LATER, YOU KNOW, MUCH LATER IN THE EVENING,
4 SOMETIMES OFTEN AFTER THE PATIENTS HAD GONE TO BED. NOW
5 FIVE OR 5:30 IN THE MORNING, MOST OF THESE PEOPLE WERE
6 ASLEEP. LATER IN THE EVENING, I MEAN MOST OF THEM WERE PUT
7 TO BED 8:30, NINE. I MEAN THAT'S PRETTY TYPICAL I THINK FOR
8 ELDERLY PEOPLE SUCH AS THIS. HE WOULD COME IN, HE WOULD
9 LOOK IN AT THE PATIENT WHO MIGHT BE SLEEPING OR SOMETIMES HE
10 WOULD COME DURING GROUPS AND HE WOULD LOOK IN AND THEY
11 WOULD -- THERE WOULD BE A GROUP OF THE PEOPLE SITTING
12 TOGETHER, EITHER INTERACTING TO THE EXTENT THEY COULD OR
13 WATCHING A MOVIE. I MEAN, THE IDEA WAS TO PUT THEM IN
14 GROUPS TO SEE IF THEY COULD GET THEM TO INTERACT AND ADJUST
15 THEIR BEHAVIOR SO THEY WEREN'T BITING AND KICKING AND
16 STRIKING OUT OR IT WAS JUST TO PUT THEM IN GROUPS BECAUSE
17 YOU'VE ONLY GOT TWO OR THREE NURSES THERE AND IF YOU HAVE
18 THEM IN THE ROOM TOGETHER, IT'S EASIER TO KEEP TRACK OF THEM
19 OTHER THAN HAVING THEM ALL IN SEPARATE ROOMS.
20 THE DEFENDANT MIGHT COME IN AND HE WOULD COME IN AND
21 LOOK AT HOW THEY WERE DOING IN GROUPS OR HE'D, YOU KNOW,
22 SCRUNCH DOWN NEXT TO ONE OF THE PATIENTS. THESE ARE NOT
23 PEOPLE THAT YOU USUALLY COULD CARRY ON A LONG CONVERSATION
24 WITH OR HE MIGHT JUST PULL THEM OUT IN THE HALLWAY AND, YOU
25 KNOW, RUN SOME TESTS TO SEE WHAT THEIR PSYCHOLOGICAL STATE
24
1 WAS. BUT HE DIDN'T SPEND A LOT OF TIME WITH THEM. AND IN
2 FACT WHAT YOU WILL SEE WITH ONE PERSON, HE NEVER EVEN MET
3 THE WOMAN. SHE CAME INTO THE UNIT LATER ONE AFTERNOON AND
4 BY 9 O'CLOCK THE NEXT MORNING, SHE WAS GONE. HE WROTE A
5 PSYCHOLOGICAL EVALUATION ON HER BUT HE NEVER EVEN MET HER OR
6 TALKED TO HER.
7 AND THE NURSES WILL TELL AND YOU THE SOME -- WELL, IT
8 WON'T BE AIDES, THEY ARE CNA'S, CERTIFIED NURSING
9 ASSISTANTS, WILL TELL YOU THEY'D SAY HE WOULD COME IN AND
10 LOOK IN THE ROOM AND SEE IF THE PATIENT WAS IN THE BED,
11 PATIENT MIGHT BE SLEEPING, HE WOULD WALK OVER, TALK TO THE
12 NURSE A LITTLE BIT AND THEN HE WOULD WRITE HIS CHART. OKAY,
13 AND THIS IS WHAT'S GOING ON WITH THIS PERSON AT THIS TIME.
14 NOT FROM ANY OF HIS OWN PERSONAL OBSERVATIONS BUT FROM WHAT
15 THE NURSES HAD TOLD HIM.
16 THE NURSES WILL TELL YOU, NOT ALL OF THEM, BUT SOME OF
17 THEM -- I'LL SAY SOME OF THEM. I THINK PROBABLY THE
18 MAJORITY, BUT I'LL JUST STICK WITH SOME OF THEM WILL SAY HE
19 WAS A VERY INTIMIDATING MAN. HE WAS THE DOCTOR AND YOU
20 BETTER DO WHAT HE SAID. YOU KNOW, HE -- HE'D TALK ABOUT A
21 TEAM EFFORT, HOW THIS WAS A TEAM EFFORT. BUT THEY'LL TELL
22 YOU TEAM TO HIM MEANT, YOU DO WHAT I TELL YOU TO DO. I'M
23 THE DOCTOR, YOU DO WHAT I TELL YOU TO DO.
24 SOME OF THESE NURSES SAID -- WILL TELL YOU THESE PEOPLE
25 WOULD COME IN FEISTY, FIGHTING, I MEAN, THAT'S KIND OF WHAT
25
1 YOU ARE TRYING TO TAKE CARE OF. YOU DON'T MIND THEM BEING
2 FEISTY, THAT'S FINE BUT YOU DON'T WANT THE FIGHTING AND
3 BITING AND KICKING AND THAT SORT OF THING. BUT THEY WOULD
4 COME IN FEISTY, THEY WOULD GET MASSIVE DOSES OF PSYCHOTROPIC
5 OF DRUGS -- WELL, I SHOULDN'T SAY MASSIVE, I'M SORRY, THEY
6 WOULD GET DOSES OF PSYCHOTROPIC DRUGS WHICH EXPERTS WILL
7 TELL YOU WHILE THEY MIGHT HAVE BEEN APPROPRIATE FOR A NORMAL
8 ADULT 30 TO 40 YEARS OLD, WERE TOO HIGH FOR ELDERLY PEOPLE
9 WHO HAVE PROBLEMS EXPELLING THE DRUGS.
10 SO THEY WOULD -- PATIENTS WOULD COME IN, THEY WOULD BE,
11 YOU KNOW, PERHAPS AMBULATORY, YOU KNOW, WALKING. SOME
12 NURSES WOULD HAVE TO ALMOST RUN DOWN THE HALLWAY TO FOLLOW
13 THEM TO KEEP UP WITH THEM. THEY WOULD GET THESE DRUGS, THEY
14 WOULD BECOME VERY SEDATED BECAUSE OF THE EFFECT OF THE
15 DRUGS. THEN THERE WOULD COME A POINT WHERE THE DEFENDANT
16 WOULD GO TO THE FAMILY MEMBERS AND SAY YOUR MOTHER OR FATHER
17 OR GRANDMOTHER ARE OR GRANDFATHER IS DYING, DO YOU WANT ME
18 TO KEEP HER OR HIM COMFORTABLE. AND OF COURSE THE FAMILY
19 MEMBERS WOULD SAY, YES. OF COURSE THEY SAY YES AND THEY
20 TRUST THE DEFENDANT BECAUSE HE'S A DOCTOR. AND HE SAYS THAT
21 IT'S TERMINAL, DO YOU WANT ME TO JUST KEEP THEM COMFORTABLE
22 AND THEY SAY YES. AND THEN HE WOULD START MORPHINE WITH
23 THESE PEOPLE.
24 AND YOU WILL HEAR FROM WITNESSES WHO SAY THE USE OF
25 MORPHINE IS USUALLY FOR POSTOPERATIVE PAIN, FOR BROKEN BONE
26
1 PAIN SOMETIMES, FOR CANCER PAIN, FOR EXTREME PAIN. THESE
2 ARE ALL PEOPLE WHO HAD HAD PAIN BEFORE AT ONE TIME OR
3 ANOTHER AND IT HAD BEEN HANDLED WITH TYLENOL, WITH LORTAB,
4 WITH DRUGS THAT DON'T HAVE THE EFFECT THAT MORPHINE HAS.
5 MORPHINE DEPRESSES THE CENTRAL NERVOUS SYSTEM WHICH
6 INCLUDES THE ABILITY TO BREATHE. THE DEFENDANT WOULD CHART
7 THAT THESE PEOPLE APPEARED TO BE IN PAIN, YOU'LL HAVE THE
8 MEDICAL RECORDS AND YOU'LL BE ABLE TO COMPARE. ON SUCH AND
9 SUCH A DATE, PATIENT APPEARS TO BE IN PAIN, GIVE MORPHINE
10 INTRAMUSCULARLY, YOU KNOW, SHOOT IT INTO A MUSCLE. YOU'LL
11 LOOK AT THE NURSING NOTES AND YOU'LL SEE, PATIENT LETHARGIC,
12 UNRESPONSIVE, UNABLE TO EAT, MAY BE MOANING. AND PERHAPS
13 THEN, YOU KNOW, TO GIVE HIM THE BENEFIT OF THE DOUBT, MAYBE
14 HE SAYS, OKAY, WELL, IF THEY ARE MOANING, THEY MUST BE IN
15 PAIN.
16 WHAT YOU'LL HEAR FROM THE EXPERTS IS MORPHINE DEPRESSES
17 THE CENTRAL NERVE SYSTEM, DEPRESSES THE ABILITY TO SWALLOW,
18 THE ABILITY TO BREATHE AND IF ANY OF YOU HAVE TRIED TO HOLD
19 YOUR BREATH OR BEEN SWIMMING UNDER WATER OR ANYTHING LIKE
20 THAT, THE FIGHT TO BREATHE IS MASSIVE. IF YOU ARE RUNNING
21 OUT OF OXYGEN YOUR BODY IS FIGHTING TO BREATHE AND PERHAPS
22 THE MOANING AND GROWING IS HYPOXIA, THE LACK OF OXYGEN. SO
23 WHAT DO YOU DO WHEN A PERSON IS MOANING OR PERHAPS THRASHING
24 AND PERHAPS THEY CAN'T BREATHE? YOU GIVE THEM MORE MORPHINE
25 TO SUPPRESS THEIR BREATHING. I MEAN, THAT ISN'T WHY HE
27
1 WOULD SAY HE GAVE THE MORPHINE, BUT THAT WOULD BE THE EFFECT
2 OF IT. YOU GIVE THEM MORE MORPHINE BECAUSE THEY APPEAR TO
3 BE IN PAIN.
4 THESE FIVE PEOPLE CAME INTO THE UNIT AND SOMETIMES
5 SIGHT UNSEEN HE WOULD START ORDERING DRUGS, PSYCHOTROPIC
6 DRUGS IN DOSES THAT THE EXPERTS WILL TELL YOU THAT WERE TOO
7 HIGH FOR GERIATRIC PATIENTS. INAPPROPRIATE AMOUNTS. AND
8 THEN THE DRUGS WOULD BE TO CALM THE AGITATION. BUT WE WILL
9 PRESENT EVIDENCE TO YOU THAT SHOWS THAT SOME OF THESE DRUGS
10 ONE OF THE SIDE EFFECTS IS AGITATION.
11 SO, YOU KNOW, AND I WON'T GET INTO A LOT OF DETAIL
12 HERE, YOU'LL HEAR IT FROM THE WITNESSES BUT I WANT YOU TO
13 LISTEN FOR THAT. THESE DRUGS WOULD SOMETIMES CAUSE BY SIDE
14 EFFECTS THE VERY PROBLEM THEY WERE SUPPOSED TO BE
15 CORRECTING. OKAY. SO THE PROBLEM INCREASES, SO YOU GIVE
16 THEM MORE DRUGS, SOMETIMES SIGHT UNSEEN. A LOT OF TIMES
17 YOU'LL SEE T.O., TELEPHONE ORDER. YOU KNOW, THE DEFENDANT
18 DIDN'T EVEN COME IN TO LOOK AT THESE PEOPLE. HE WOULD JUST
19 ORDER OVER THE TELEPHONE THAT THEY BE GIVEN THESE DRUGS.
20 THE PATIENT'S HEALTH DECLINED FROM THE DRUGS THAT THEY
21 WERE GIVEN. AS I SAID, THEY CAME IN, YOU'LL HEAR EVIDENCE
22 THEY CAME IN FEISTY, FIGHTING. YOU KNOW, THESE WERE PEOPLE
23 IN THEIR 70'S, 80'S AND 90S, OBVIOUSLY HAVE FOUGHT LONG AND
24 HARD TO GET TO THE AGE THAT THEY ARE, THAT THEY WERE. THEY
25 WOULD BE GIVEN THESE MASSIVE AMOUNTS OF DRUGS THAT HAVE
28
1 THESE SIDE EFFECTS AND THEN YOU WILL SEE IN THE NOTES HOW
2 THEY BECAME LETHARGIC. YOU WILL ALSO SEE THAT THEY KIND OF
3 WENT UP AND DOWN, YOU KNOW, THEY WOULD BE AGITATED, THEN
4 THEY'D BE LETHARGIC; THEY WOULD BE AGITATED, THEN LETHARGIC.
5 THIS YOU WILL HEAR EXPERT TESTIMONY OF WHAT THAT MEANS, WHAT
6 CAN CAUSE THAT IN THIS CIRCUMSTANCE.
7 WHEN THE PATIENTS DECLINED, DEFENDANT WOULD APPROACH
8 FAMILY MEMBERS, DO YOU WANT COMFORT CARE. OF COURSE THEY
9 SAID YES. I MEAN THERE'S -- THAT'S UNDERSTANDABLE, THEY
10 TRUST THE DOCTOR. MORPHINE WOULD BE STARTED, NOT P.R.N.,
11 WHICH IS AS NEEDED FOR PAIN, WHICH IS THE WAY MORPHINE IS
12 USUALLY GIVEN. YOU KNOW, IN A CANCER PATIENT WHO HAS
13 INCURABLE CANCER AND IS IN GREAT PAIN THEY WILL OFTEN PUT
14 WHAT'S CALLED A PUMP ON AND THAT PUMP WILL ALLOW THE PATIENT
15 WHEN THEY FEEL PAIN TO PUSH A BUTTON AND IT WILL RELEASE THE
16 MORPHINE AND THEN IT LOCKS SO THEY COULDN'T, YOU KNOW,
17 CONTINUE TO GIVE THEMSELVES DOSES AT INAPPROPRIATE
18 INTERVALS. BUT MORPHINE IS TO BE GIVEN AS NEEDED FOR PAIN.
19 BUT WHAT THE DEFENDANT WOULD DO IS SAY YOU WILL GIVE
20 MORPHINE TO THESE PEOPLE EVERY THREE OR FOUR HOURS SCHEDULED
21 AROUND THE CLOCK. SOME OF THE NURSES WOULD LOOK AT A PERSON
22 LYING THERE, OUT OF IT, I MEAN, CLEARLY NOT IN ANY PAIN,
23 WOULD NOT GIVE THE MORPHINE DOSE AND THE DEFENDANT BECAME
24 VERY ANGRY AT THAT. THEY HAD A STAFF MEETING AND HE MADE IT
25 VERY CLEAR AND EVEN WROTE IT IN SOME OF HIS NOTES, YOU WILL
29
1 NOT -- HE DIDN'T PUT IT THAT WAY, EXCUSE ME. IF YOU ARE
2 GOING TO WITHHOLD ANY OF THESE MEDS, AND ESPECIALLY
3 MORPHINE, YOU WILL CALL ME FIRST.
4 ONE NURSE IS GOING TO TESTIFY THAT SHE -- YOU KNOW, SHE
5 WENT TO THE DEFENDANT AND SAID, THIS PERSON IS NOT IN PAIN,
6 THIS PERSON IS BASICALLY UNCONSCIOUS. HE SAID, HOW DO YOU
7 KNOW WHETHER THEY ARE IN PAIN? I'M THE DOCTOR, I'M THE
8 EXPERT, HOW DO YOU KNOW? THIS PERSON IS DYING, YOU KNOW,
9 THEY COULD BE IN PAIN, DO YOU WANT TO BE RESPONSIBLE FOR
10 THIS PERSON DYING IN PAIN? THE INTIMIDATION FACTOR WAS SUCH
11 THAT THE NURSE THOUGHT, HE'S THE EXPERT AND I DON'T WANT
12 THIS PERSON TO BE IN PAIN. I DON'T SEE ANY PAIN, I THINK
13 THEY ARE UNCONSCIOUS, BUT SO SHE WENT AHEAD AND GAVE THE
14 DOSE. AND ONE NURSE WILL TELL YOU, I WOULDN'T GIVE IT SO
15 ANOTHER NURSE CAME IN AND DID IT, AND I WANT YOU TO REMEMBER
16 THAT TOO AS YOU LISTEN TO THE NURSES.
17 NURSES HAVE A RESPONSIBILITY JUST LIKE A DOCTOR DOES TO
18 DO NO HARM. THESE NURSES MOST OF THEM WERE NOT MEDICAL
19 NURSES, I.E., THEY WERE PSYCH NURSES. THEY UNDERSTOOD
20 PSYCHIATRIC MATTERS BUT NOT NECESSARILY MEDICAL MATTERS. I
21 MEAN, I THINK EVERYBODY PRETTY MUCH KNOWS WHAT MORPHINE WILL
22 DO. BUT THESE NURSES WERE INTIMIDATED, THEY -- I MEAN, THEY
23 EVEN WENT UP THROUGH THE CHAIN IN THE HOSPITAL, UP THROUGH
24 THEIR CHAIN OF COMMAND. YOU KNOW, I DON'T LIKE THE KIND OF
25 MEDS THAT HE'S GIVING THESE PEOPLE, WHAT'S HAPPENING TO
30
1 THESE PEOPLE HOW THEY COME IN FEISTY AND THEN GO DOWN HILL
2 WITH ALL THESE MEDICATIONS AND THEY WERE BASICALLY TOLD DO
3 WHAT THE DOCTOR TELLS YOU.
4 SO THEY ARE KIND OF BETWEEN A ROCK AND A HARD SPOT.
5 WHAT ARE THEY DO -- WHAT DO THEY DO? THE DOCTOR TELLS THEM,
6 I KNOW BETTER THAN YOU, I AM THE DOCTOR, I HAVE THE MEDICAL
7 DEGREE, YOU WILL DO WHAT I SAY, BUT ON THE OTHER HAND, THEY
8 ARE THINKING THIS PERSON DOESN'T NEED THAT. SOME, AS I
9 SAID, WITHHELD AND WERE TOLD ON NO UNCERTAIN TERMS NOT TO DO
10 THAT ANYMORE.
11 WHAT CAN A NURSE DO IF SHE DOESN'T GET ANY BACKUP FROM
12 HER CHAIN OF COMMAND? THEY JUST SAY GO AHEAD AND DO WHAT
13 THE DOCTOR TELLS YOU. THEIR JOB IS TO GO TO THE DOCTOR
14 FIRST AND SAY, DOCTOR, I DON'T THINK THAT THIS IS
15 APPROPRIATE. BUT IF THE DOCTOR SAYS YOU DO IT BECAUSE I'M
16 TELLING YOU TO DO IT, THEN THEY GO THROUGH THE CHAIN OF
17 COMMAND AND THAT DOESN'T WORK, WHAT CAN THEY DO? THEY CAN
18 GET FIRED. THEY CAN REFUSE TO GIVE THE DRUG AND BE FIRED
19 FOR REFUSING TO GIVE THE DRUG.
20 WHAT HAPPENS WHEN THE PATIENT -- WHEN THAT NURSE IS
21 FIRED FOR REFUSING TO GIVE THE DRUG? THE NEXT NURSE IS
22 HANDED THE SYRINGE BASICALLY OR TOLD YOU WILL GIVE THE DRUG.
23 AND THAT NURSE EITHER LOOKS AT WHAT HAPPENED TO THE FIRST
24 NURSE FOR REFUSING AND SAYS, I CAN'T LOSE MY JOB AND GIVES
25 THE DRUG OR SAYS, NO, I WON'T GIVE IT EITHER. AND WHAT
31
1 HAPPENS THEN? YOU'VE GOT TWO NURSES OUT OF WORK AND IT'S
2 GIVEN TO A THIRD NURSE. YOU KNOW, YOU COULD HAVE GONE
3 THROUGH EVERY NURSE THAT WAS THERE AND THEY COULD ALL QUIT
4 AND EVENTUALLY THERE WOULD HAVE BEEN AND THERE WAS A TIME
5 THAT EVENTUALLY THERE WILL BE A NURSE WHO WILL GIVE THE
6 SHOT. IT DOESN'T SAVE THE PATIENT FOR THE NURSE TO LOSE HER
7 JOB. THAT IS A GENERAL OVERVIEW OF IN GENERAL WHAT WAS
8 GOING ON HERE.
9 THE COURT: YOU MAY WANT TO KEEP UP YOUR VOICE. I
10 DON'T KNOW WHAT'S GOING ON OUTSIDE.
11 MS. BARLOW: OH, THE AIR CONDITIONING RUNNING, I
12 GUESS.
13 THE FIRST PATIENT OF THESE FIVE, OF COURSE NOT THE
14 FIRST PATIENT ON THE UNIT, BUT THE FIRST PATIENT OF THESE
15 FIVE TO COME INTO THIS UNIT WAS JUDITH LARSEN. JUDITH -- OF
16 COURSE THIS IS NOT A PICTURE FROM WHEN SHE WAS IN THE
17 HOSPITAL BUT AROUND THE TIME. JUDITH CAME ON TO THE UNIT
18 DECEMBER 6TH OF 1995. SHE HAD BEEN IN THE CARE CENTER. SHE
19 HAD HAD A HABIT OF CLIMBING OUT OF THE BED AND FALLING. SHE
20 WAS HAVING TO HAVE STITCHES IN HER HEAD FROM FALLING. SHE
21 HAD A STROKE IN JANUARY OF 1995. SHE WAS BECOMING MORE
22 AGITATED, MORE DIFFICULT TO HANDLE IN THE LONG-TERM CARE
23 CENTER.
24 SO SHE CAME IN THE 6TH OF DECEMBER 1995. A
25 PSYCHOLOGICAL EVALUATION SAYS, YOU KNOW, SHE'S DEMENTED.
32
1 SHE DOES HAVE PHYSICAL HEALTH PROBLEMS. YOU WILL HEAR FROM
2 THE PRIOR DOCTORS FOR ALL OF THESE PEOPLE ABOUT WHAT OTHER
3 HEALTH PROBLEMS THEY HAD. SHE WAS TO BE THERE FOR TWO
4 WEEKS, THAT'S WHAT THE DEFENDANT WROTE IN THE PSYCH
5 EVALUATION. THEY WERE GOING TO DECREASE HER PSYCHOSES AND
6 DECREASE HER DEPRESSION AND SHE WAS TO GO BACK TO THE
7 LONG-TERM CARE CENTER. SHE WAS IMMEDIATELY GIVEN
8 PSYCHOTROPIC DRUGS TO CONTROL HER BEHAVIOR. JUDITH WAS 93
9 YEARS OLD. JUDITH HAD A VERY STRONG CONSTITUTION.
10 DURING THE MONTH OF DECEMBER, EVEN THOUGH I DON'T
11 BELIEVE YOU'LL FIND ANYTHING IN THE NURSING NOTES THAT SAYS
12 THERE WAS ANY INDICATION OF PAIN, JUDITH WAS GIVEN MORPHINE.
13 ONE OF THE NURSES WILL TELL THAT YOU SHE CAME TO THE DOCTOR,
14 THIS NURSE IS ONE WHO DID HAVE A MEDICAL/SURGICAL
15 BACKGROUND. SHE WASN'T A PSYCH NURSE, SHE WAS A MED/SURG
16 NURSE AND SHE WENT TO THE DEFENDANT AND SHE SAID THIS WOMAN
17 DOESN'T NEED MORPHINE AND THE DEFENDANT DISCONTINUED THE
18 MORPHINE FOR A PERIOD OF TIME.
19 TOWARDS THE END OF DECEMBER, SO WE'RE NOW LOOKING AT
20 THREE OR FOUR WEEKS INTO HER STAY OF WHAT WAS TO BE A TWO OR
21 THREE-WEEK STAY, SHE STARTS HAVING SOME MEDICAL PROBLEMS.
22 SHE STARTS VOMITING. THE NURSE CALLS -- AND IT STARTED
23 DURING THE EVENING AND THE NURSE KEPT CALLING THE DEFENDANT
24 WHO DID NOT RESPOND FOR QUITE SOME TIME. AND THERE'S A REAL
25 CONCERN WITH DEHYDRATION WITH ELDERLY PEOPLE BUT ESPECIALLY
33
1 WITH VOMITING, YOU KNOW, I THINK, YOU KNOW, MOST OF US
2 RECOGNIZE THAT AND THE NURSE HELD THE MEDS. SHE DIDN'T GIVE
3 THE MEDICATION THAT HAD BEEN ORDERED.
4 WELL, ON THE 31ST OF DECEMBER MORPHINE WAS ORDERED FOR
5 EVERY 12 HOURS AROUND THE CLOCK. NOT P.R.N., NOT ACCORDING
6 TO THE PAIN, NOT IF YOU SAW ANY PAIN OR INDICATIONS OF PAIN,
7 BUT JUST GIVE IT EVERY FOUR HOURS AROUND THE CLOCK. AT THAT
8 TIME, THE NURSES SAY SHE WAS UNRESPONSIVE, SHE WAS MOANING
9 WHEN TURNED, SHE MOANED WHEN SHE WAS GIVEN THE SHOT, YOU
10 KNOW, SO SHE WAS RESPONSIVE TO MOTION AND THAT SORT OF
11 THING. BUT AT THIS POINT WE'RE TALKING IS HER RESPIRATORY
12 SYSTEM BEING SUPPRESSED SUCH THAT THE MOANING IS INDICATIVE
13 OF, I'M NOT GETTING ENOUGH OXYGEN BUT I AM SO SEDATED BY THE
14 DRUGS THAT YOU GAVE ME I CAN'T EVEN TELL YOU WHAT MY PROBLEM
15 IS?
16 THE COURT: EXCUSE ME, LADIES AND GENTLEMEN, ARE
17 YOU ABLE TO HEAR WITH THE RAIN AND EVERYTHING? OKAY. IF
18 YOU NEED TO MOVE CLOSER, YOU KNOW, FEEL FREE TO DO THAT.
19 MS. BARLOW: I'LL TRY TO USE A SCHOOL TEACHER
20 VOICE.
21 THE COURT: OKAY.
22 MS. BARLOW: DRUGS CONTINUED. THE MORPHINE
23 CONTINUED THROUGH THE 31ST OF DECEMBER, THE 1ST, THE 2ND AND
24 INTO THE 3RD OF JANUARY. NOW MORPHINE IS GIVEN, YOU KNOW,
25 MAYBE 1 MILLIGRAM TO 2 MILLIGRAMS. THESE ARE PEOPLE WHO
34
1 WEREN'T USED TO GETTING MORPHINE. I MEAN, PEOPLE WHO ARE
2 USED TO GETTING MORPHINE YOU CAN GIVE THEM LARGE DOSES.
3 PEOPLE IN TERMINAL PAIN WHO HAVE BEEN GETTING MORPHINE FOR A
4 TIME, YOU CONTINUE TO INCREASE THE DOSE TO HANDLE THE PAIN.
5 THESE PEOPLE STARTED OUT WITH MAYBE ONE OR 2 MILLIGRAMS OF
6 MORPHINE, MAYBE 5 MILLIGRAMS, WHICH IS, YOU KNOW, A NORMAL
7 DOSE IN A NORMAL HEALTHY ADULT.
8 JUDITH LARSEN THE LAST -- FROM MIDNIGHT, MIDNIGHT AND
9 THEN 12:01 ON THE 3RD OF JANUARY UNTIL 8 O'CLOCK THAT
10 EVENING WHEN SHE PASSED AWAY, HAD OVER 100 MILLIGRAMS OF
11 MORPHINE ADMINISTERED TO HER. THEY WEREN'T 5 MILLIGRAMS
12 SHOTS. THEY BECAME 25 MILLIGRAMS, 30 MILLIGRAMS,
13 40 MILLIGRAMS OF MORPHINE. AND THE NURSING NOTES WILL SHOW
14 YOU SHE WAS IN NO PAIN, SHE WAS NOT CONSCIOUS, SHE COULD NOT
15 HAVE BEEN IN PAIN, AND YET THE DRUG DOSES JUST KEPT
16 INCREASING. AND SOMETIMES THEY WERE GIVEN MORE QUICKLY THAN
17 THE THREE HOURS. JUDITH LARSEN WAS THERE ALMOST A MONTH,
18 SHE DID NOT GO WILLINGLY. I'LL SET THIS OVER HERE.
19 THE NEXT PATIENT IN TERMS OF TIME COMING ON THE UNIT
20 DURING THIS TIME FRAME -- NOW, REMEMBER, SHE PASSED AWAY THE
21 3RD OF JANUARY, JUDITH LARSEN DID.
22 THE NEXT WOMAN TO COME IN WAS LYDIA SMITH. SHE CAME IN
23 THE ON THE 20TH OF DECEMBER. THE NURSES WILL TELL YOU SHE
24 HAD A LONG BRAID OF HAIR THAT YOU DON'T REALLY SEE IN THIS
25 PICTURE, BUT IT WAS PULLED AND BRAIDED AND A LOT OF THEM
35
1 WILL REMEMBER HER BECAUSE OF HER LONG BRAID OF HAIR AND SHE
2 WAS FEISTY. SHE WAS SMALL, SHE WAS THINNER THAN THIS BUT
3 SHE WAS REALLY FEISTY AND UP AND GOING AND -- YOU KNOW, ONE
4 NURSE WILL SAY, YOU KNOW, SHE WANTED TO TAKE ON THE WHOLE
5 STAFF. SHE WAS 90 YEARS OLD AND SHE WAS STILL PRETTY FEISTY
6 BUT, AGAIN, DEMENTED. HER QUALITY OF LIFE WAS GOING DOWN, I
7 MEAN, THERE'S NO QUESTION OF THAT.
8 SHE HAD HAD A STROKE IN MID NOVEMBER THAT HAD CAUSED AN
9 ACUTE CHANGE IN HER BEHAVIOR. SHE WAS AGITATED, SHE WAS
10 DEPRESSED. THE DEFENDANT DOES A PSYCHOLOGICAL EVALUATION,
11 SAYS SHE'LL BE HERE THREE WEEKS AND WHEN SHE LEAVES SHE'LL
12 HAVE AN IMPROVED MOOD. STARTED GIVING THE PSYCHOTROPIC
13 DRUGS IMMEDIATELY AND, AGAIN, I MEAN SHE'S AGITATED AND
14 SHE'S AGGRESSIVE, SOMETIMES THESE DRUGS WILL INCREASE THAT
15 AND IT -- THE NURSING NOTES WILL SHOW YOU SHE IS AGGRESSIVE
16 AND SHE'S ACTIVE AND SHE'S FEISTY. THERE'S NO APPARENT
17 PAIN. I MEAN, PAIN YOU USUALLY -- YOU KNOW, IF YOU HAVE A
18 HEADACHE YOU JUST DON'T MOVE ME, BUT SHE WAS AGGRESSIVE AND
19 SHE WAS FEISTY. SO THAT WAS ON THE 20TH OF DECEMBER.
20 SHE GOES ALONG GETTING THE REGULAR MEDICATIONS, BECOMES
21 IN DECLINING HEALTH, BECOMES SEDATED, BECOMES LETHARGIC,
22 BECOMES UNRESPONSIVE, ALL SIDE EFFECTS OF THESE PSYCHOTROPIC
23 DRUGS. THE MEDICAL NOTES WILL SHOW YOU FROM THE 4TH THROUGH
24 THE 7TH SHE'S QUIET, SHE BECOMES AGITATED AND THEN LETHARGIC
25 AGAIN ONE DAY. SHE SLEEPS MOST OF ONE DAY, SHE'S QUIET AND
36
1 LETHARGIC ON THE 7TH. THERE ARE SOME CONCERNS ABOUT
2 BREATHING. THE DEFENDANT IS CALLED A COUPLE OF TIMES,
3 DOESN'T CALL BACK.
4 EVENTUALLY THE DEFENDANT CALLS BACK. HE ORDERS
5 MORPHINE EVERY THREE HOURS AND IT WAS LATER IN THE DAY ON
6 THE 7TH THAT HE ORDERED THAT. THREE OF THE FOUR DOSES THAT
7 WERE ROUTINE, SCHEDULED WERE GIVEN. THE FOURTH WAS HELD
8 BECAUSE OF HER STATE. I MEAN THERE WAS NO APPEARANCE OF
9 PAIN TO THE NURSE, SO SHE HELD THAT. THAT WAS 5 MILLIGRAMS,
10 THOSE DOSES WERE 5 MILLIGRAMS EACH.
11 ON THE 8TH HE UPPED IT TO 10 MILLIGRAMS. THIS WOMAN IS
12 UNRESPONSIVE, SHE'S QUIET, SHE'S LETHARGIC, THERE'S NO
13 APPARENT APPEARANCE OF PAIN AND YET HE INCREASES THE
14 MORPHINE. SHE'S GIVEN A MORPHINE SHOT AT NINE IN THE
15 MORNING, AGAIN AT 12 NOON, AND BY 12:45, SHE HAD PASSED
16 AWAY. THE EXPERTS WILL TELL THAT YOU THERE AREN'T REALLY
17 ANY MEDICAL REASONS FOR THESE PEOPLE TO DIE OTHER THAN THEIR
18 CENTRAL NERVOUS SYSTEM IS SO DEPRESSED AND THEY ARE HAVING
19 TROUBLE GETTING OXYGEN, HAVING TROUBLE BREATHING. THIS IS
20 LYDIA SMITH.
21 THE THIRD PERSON TO COME ON THE UNIT DURING THIS TIME
22 FRAME WAS MARY CRANE. SHE CAME ONTO THE UNIT ON THE 28TH OF
23 DECEMBER. SHE'S 72 YEARS OLD. SHE HAD HAD A STROKE IN
24 1989. SHE HAD A HERNIATED DISK AND DID HAVE SOME LOW BACK
25 PAIN. IN THE NURSING HOME THAT HAD BEEN TAKEN CARE OF
37
1 THROUGH TYLENOL, LORTAB, YOU KNOW, SOME OF THE LESS SEVERE
2 PAIN MEDICATIONS, HAD CONTROLLED HER PAIN IN THE NURSING
3 HOME. SHE COMES IN AND, AGAIN, SHE HAS A PSYCHOLOGICAL
4 EVALUATION. SHE'S GOING TO BE THERE TWO TO THREE WEEKS, YOU
5 KNOW, AND HER BEHAVIOR IS GOING TO BE MODIFIED BY THE TIME
6 SHE IS RELEASED AGAIN.
7 SHE IS GIVEN WHAT'S CALLED A DURAGESIC PATCH FOR THE
8 PAIN OF HER LOWER BACK. IT'S A PATCH THAT IS PLACED ON AND
9 LEFT ON FOR THREE DAYS AND IT HAS A PAIN MEDICATION THAT IS
10 RELEASED THROUGH THE SKIN AND YOU'LL HEAR A LOT OF TESTIMONY
11 ABOUT JUST HOW THIS WORKS. IT'S THE KIND OF THING THAT IT
12 RELEASES THE PAIN MEDICATION AND AFTER YOU TAKE THE PATCH
13 OFF, THE PAIN MEDICATION IS STILL GOING INTO YOUR SYSTEM FOR
14 AN EXTENDED PERIOD OF TIME. AND WITH THE ELDERLY IT'S AN
15 EVEN MORE EXTENDED PERIOD OF TIME AFTER THE PATCH IS GONE.
16 A 25 MILLIGRAM PATCH IS PLACED ON WHICH IS A NORMAL
17 DOSE. IT FELL OFF THE NEXT MORNING FOR WHATEVER REASON AND
18 ANOTHER PATCH WAS PUT ON IMMEDIATELY NOT ALLOWING THE
19 MEDICATION THAT WAS STILL IN THE SYSTEM FROM THE FIRST PATCH
20 TO DISSIPATE. AND THESE ARE THREE-DAY PATCHES, YOU KNOW,
21 AND IF YOU STICK MORE THAN ONE ON, YOU KNOW, YOU STILL GOT
22 WHAT'S GOING FROM THE FIRST PATCH IN THE SYSTEM. THERE'S A
23 MEDICAL CONSULT. DR. DIENHART IS CALLED IN TO TALK TO MARY
24 CRANE TO LOOK AT MARY CRANE'S PHYSICAL CONDITION. THAT
25 OCCURRED ON THE FIRST -- OKAY, LET ME BACK UP A LITTLE BIT.
38
1 SO THE FIRST PATCH WAS 25 MILLIGRAMS. WHEN THE SECOND
2 PATCH WAS PUT ON THE DEFENDANT INCREASED THAT TO
3 50 MILLIGRAMS, EVEN THOUGH NOTHING HAD REALLY CHANGED
4 BECAUSE IT WAS AROUND THE SAME TIME, YOU KNOW, WITHIN 24
5 HOURS, HE SAYS PUT ON A 50 MILLIGRAMS WHICH IS GETTING UP
6 THERE IN DOSAGE FOR A GERIATRIC PERSON.
7 ON THE 1ST OF JANUARY DR. DIENHART, I THINK HE'S AN
8 INTERNIST, YOU'LL HEAR FROM HIM AND HE'LL TELL YOU EXACTLY
9 WHAT HIS SPECIALTY IS, BUT HE DEALS WITH MEDICAL CONDITIONS,
10 NOT PSYCHOLOGICAL CONDITIONS. HE SAW HER ON THE 1ST OF
11 JANUARY AND DECREASED THE DOSAGE BACK DOWN TO 25. THE
12 DEFENDANT THE VERY SAME DAY WITHIN AN HOUR HAD THEM TAKE
13 THAT PATCH OFF AND PUT -- PROBABLY NOT TAKE IT OFF, BUT PUT
14 SOMETHING ON SO THAT SHE HAD 50 AGAIN. SO YOU'VE GOT THE
15 MEDICAL DOCTOR SAYING 25 IS PLENTY, YOU'VE GOT THE
16 PSYCHIATRIST WHO IS AN M.D. SAYING, NO, I'M GOING BACK UP TO
17 50, WITHIN AN HOUR. SO THE DURAGESIC PATCH IS THERE FOR THE
18 LOWER BACK PAIN AND THERE'S NO INDICATION THAT SHE'S IN
19 EXCRUCIATING PAIN. YOU KNOW, THE DURAGESIC PATCH WILL TAKE
20 CARE OF THE LOWER BACK PAIN. - ??
21 ON THE 3RD OF JANUARY, THE DEFENDANT ORDERS MORPHINE
22 AND A COUPLE OF SHOTS OF MORPHINE ARE GIVEN. ON THE 4TH OF
23 JANUARY ANOTHER SHOT OF MORPHINE AT 6:30 IN THE MORNING.
24 NOW THIS IS ON TOP OF THE DURAGESIC PATCH. THAT DAY THE
25 DEFENDANT UPS THE DURAGESIC TO 75 MILLIGRAMS WHICH IS THREE
39
1 TIMES WHAT A GERIATRIC DOSE OUGHT TO BE. ON THE 7TH OF
2 JANUARY, THE DURAGESIC PATCHES ARE THERE, MORPHINE IS BEING
3 ADMINISTERED, ROUTINELY, SCHEDULED AROUND THE CLOCK.
4 DEFENDANT SAYS HOLD ALL THE OTHER DRUGS EXCEPT THE MORPHINE
5 AND THE DURAGESIC, DON'T GIVE ANY OF THE OTHER DRUGS, YOU
6 KNOW, FOR ANY OTHER MEDICAL CONDITION.
7 THERE'S A MEDICAL CONSULT DR. DIENHART COMES IN, HE
8 LOOKS AT THIS WOMAN AND HE WRITES IN THE NOTES, SHE MAY DIE
9 SOON, AND INDEED SHE DID DIE THAT DAY AT 11:35 IN THE
10 MORNING. AGAIN, A CIRCUMSTANCE WHERE SHE COMES IN, GETS
11 LOADED UP WITH PSYCHOTROPIC DRUGS, DECLINES IN HEALTH AND HE
12 GOES TO THE FAMILY MEMBERS AND SAYS, DO YOU WANT COMFORT
13 CARE AND OF COURSE THEY SAY YES AND THEN HE STARTS GIVING
14 MORPHINE ON TOP OF THE DURAGESIC WHICH IS ALREADY THREE
15 TIMES THE DOSAGE THAT IT OUGHT TO BE AND SHE DIES. THAT'S
16 MARY CRANE.
17 ELLEN ANDERSON CAME IN THE ON THE 29TH OF DECEMBER AND
18 17 HOURS LATER SHE WAS GONE. SHE HAD HAD A HIP FRACTURE.
19 SHE DID HAVE OSTEOPOROSIS WHICH IS -- CAN BE PAINFUL. SHE
20 HAD HAD A HIP FRACTURE IN JUNE OF '95, HAD HAD THAT
21 REPAIRED, HAD HAD AN OPERATION ON IT. BUT COMING OUT OF
22 THAT OPERATION SHE HAD COME OUT ANXIOUS AND DEPRESSED, HATED
23 TO BE LEFT ALONE AND, OF COURSE, THAT CAUSES PROBLEMS WITH
24 CARE GIVERS EITHER AT HOME OR AT A LONG-TERM CARE FACILITY
25 BECAUSE, YOU KNOW, YOU CAN'T SPEND EVERY MINUTE WITH PEOPLE.
40
1 IT'S JUST -- WE ALL HAVE LIVES UNFORTUNATELY. NOT
2 UNFORTUNATELY, WE DO HAVE THEM -- FORTUNATELY, I GUESS.
3 SHE CAME IN, SHE WAS GIVEN BY TELEPHONE ORDER
4 PSYCHOTROPIC MEDICATIONS AND TYLENOL AND MORPHINE WERE
5 ORDERED FOR PAIN. SHE RECEIVED A MORPHINE SHOT AT NINE --
6 1930 THE EVENING OF THE 29TH, WHICH IS 7:30 IN THE EVENING.
7 SHE CAME IN AT 4 O'CLOCK THAT EVENING. AT ONE IN THE
8 MORNING HER BREATHING WAS ERRATIC. HER BREATHING WAS EIGHT
9 TO 16 BREATHS PER MINUTE. SIXTEEN IS NORMAL, EIGHT IS LOW.
10 THERE'S A PROBLEM. THE CENTRAL NERVOUS SYSTEM IS
11 SUPPRESSED, AND, YOU KNOW, SHE MIGHT ONLY BE TAKING EIGHT
12 BREATHS A MINUTE BECAUSE THAT AUTOMATIC SYSTEM ISN'T WORKING
13 BECAUSE OF THE MEDICATION THAT IS SUPPRESSING IT.
14 DEFENDANT WAS PAGED AT ONE IN THE MORNING, NO RESPONSE.
15 AT 3:15 SHE WOKE UP, SHE WAS THRASHING, THE NURSE THOUGHT
16 SHE WAS IN PAIN BECAUSE OF HER THRASHING. WAS IT PAIN OR
17 WAS IT LACK OF OXYGEN WHICH CAN ALSO CAUSE A PERSON TO FIGHT
18 FOR BREATH. DEFENDANT WAS PAGED AGAIN AT 3:15. AT 3:30 HE
19 CALLED BACK AND SAID GIVE HER A SHOT OF MORPHINE WHICH THE
20 NURSE DID. AT 6:30 THE NURSE SAID SHE'S BEEN SLEEPING SINCE
21 THEN.
22 AT 6:30 IN THE MORNING AN E.K.G. AND A CHEST X-RAY IS
23 DONE. THE BREATHING IS STILL ERRATIC, YOU HAVE THE MORPHINE
24 ON BOARD AS THEY SAY, IN THE SYSTEM. THE E.K.G. SHOWS THAT
25 THERE IS AN ARRHYTHMIA, THAT THE HEART IS NOT PUMPING LIKE
41
1 IT OUGHT TO BE PUMPING. SHE'S HAD TWO SHOTS OF MORPHINE.
2 BY 8:55 THAT MORNING SHE WAS GONE.
3 THE DEFENDANT NEVER SAW HER. HE ORDERED THE DRUGS
4 WITHOUT EVER SEEING HER AND AFTER THE FACT -- IT'S
5 INTERESTING AS YOU READ IN HIS NOTES, HE INDICATES SHE CAME
6 IN ON 12/29, HAD AN E.K.G. UPON ADMISSION, AND I GUESS
7 TECHNICALLY THEY SAY THAT IF IT'S WITHIN 24 HOURS OF
8 ADMISSION, IT'S STILL CALLED ON ADMISSION. BUT THAT E.K.G.
9 WAS AFTER THE MORPHINE AND THE ARRHYTHMIA, THE IRREGULAR
10 RHYTHM WAS AFTER THE MORPHINE. BUT IN HIS REPORT HE WRITES,
11 WELL, SHE HAS ARRHYTHMIA UPON ADMISSION. THAT WAS AFTER THE
12 MORPHINE, BUT HE DOESN'T SAY THAT, HE DOESN'T WRITE THAT IN
13 HIS REPORT.
14 HE WROTE THE PSYCHOLOGICAL EVALUATION AFTER SHE DIED.
15 HE NEVER TALKED TO HER BUT HE JUST LOOKED AT, YOU KNOW,
16 WHATEVER ELSE HAD BEEN WRITTEN AND WRITES A PSYCHOLOGICAL
17 EVALUATION. HE IN HIS NOTES SAYS IT WAS DICTATED THE DAY
18 THAT SHE CAME IN. THAT'S NOT TRUE. IT WAS DICTATED AND
19 WRITTEN AFTER SHE DIED.
20 AND THAT POINTS OUT SOMETHING I WANT YOU TO PAY CLOSE
21 ATTENTION TO AS YOU GET THE MEDICAL RECORDS HERE. LOOK AT
22 WHO SAYS THESE PEOPLE ARE IN PAIN. THERE'S ONE OR TWO
23 NURSES THAT YOU WILL SEE THAT INDICATE SOME PAIN. BUT MOST
24 OF THE TIME YOU WILL SEE THAT IT'S THE DEFENDANT WHO WRITES,
25 APPEARS TO BE IN PAIN. YOU LOOK AT THE COMPARABLE NURSING
42
1 NOTES FOR THAT TIME PERIOD, THE NURSES AREN'T SAYING THAT.
2 HE WAS JUSTIFYING GIVING THE MORPHINE. THAT'S ELLEN
3 ANDERSON.
4 ENNIS ALLDREDGE CAME INTO THE UNIT ON THE 10TH OF
5 JANUARY OF 1996. HE WAS 82 YEARS OLD WHEN HE CAME INTO THE
6 UNIT. HE WAS AGGRESSIVE, HE WAS COMBATIVE, HE HAD BEEN
7 HITTING PEOPLE AT THE LONG-TERM CARE FACILITY. HE HAD ONLY
8 BEEN IN THE NURSING HOME SINCE SEPTEMBER OF 1995 AND, AGAIN,
9 THERE WAS AN ACUTE EVENT THAT HIS BEHAVIOR BECAME SUCH THAT
10 THEY COULD NOT CONTROL IT, COULDN'T HANDLE IT. HE WAS
11 DEMENTED.
12 HE CAME IN, A PSYCHOLOGICAL EVALUATION WAS DONE. HE'S
13 INTENDED TO STAY AT THE UNIT TWO TO THREE WEEKS. IT WAS
14 INTENDED THAT HE WOULD LEAVE THE UNIT WITH BEHAVIOR UNDER
15 CONTROL. IMMEDIATELY GIVEN PSYCHOTROPIC DRUGS THAT HAVE THE
16 SIDE EFFECTS OF SEDATION AND DEPRESSION OF THE CENTRAL
17 NERVOUS SYSTEM, COULD EVEN CAUSE THE AGITATION BECAUSE THEY
18 KEEP A PERSON FROM GETTING OXYGEN. HE BECAME UNRESPONSIVE
19 OVER TIME. HE WAS ONLY THERE FOUR DAYS, LABORED BREATHING,
20 ALL THE EXPERTS WILL TELL YOU AS A CONSEQUENCE OF THE
21 OVERMEDICATION THAT WAS HAPPENING HERE.
22 HIS FAMILY WAS TOLD HE IS TERMINAL, YOU KNOW, HE'S COME
23 IN FEISTY AND COMBATIVE, HE'S GIVEN THE DRUGS, HE DROPS, THE
24 DEFENDANT SAYS HE'S TERMINAL, DO YOU WANT ME TO KEEP HIM
25 COMFORTABLE? OF COURSE THE FAMILY SAYS YES. NOBODY WANTS
43
1 THEIR FAMILY MEMBERS TO SUFFER OR THEIR LIVES PROLONGED SO
2 THEY CAN SUFFER SO THEY AGREE TO WHAT'S CALLED PALLIATIVE
3 CARE, COMFORT CARE, WHICH IN THE DEFENDANT'S MIND MEANS
4 MORPHINE. HE IS GIVEN MORPHINE EVERY THREE HOURS STARTING
5 ON THE 13TH AND ON THE 14TH HE PASSES AWAY. THIS IS ENNIS
6 ALLDREDGE.
7 YOU WILL HEAR TESTIMONY OF THEIR PRIOR MEDICAL
8 HISTORIES. YOU'LL HEAR TESTIMONY OF WHAT MEDICAL PROBLEMS
9 THEY HAD. YOU WILL HEAR TESTIMONY OF WHAT KILLED THEM. YOU
10 WILL HEAR TESTIMONY FROM FAMILY MEMBERS ABOUT WHAT THEIR
11 FATHER AND MOTHERS WERE LIKE. YOU'LL HEAR EXPERTS TELL YOU
12 ABOUT THESE DOSES OF DRUGS AND THE EFFECTS OF THESE DRUGS IN
13 THE ELDERLY AND I HOPE YOU'LL PAY PARTICULAR ATTENTION TO
14 THAT.
15 AND I'M GLAD THAT YOU HAVE NOTE PADS BECAUSE, YOU KNOW,
16 WE TRY TO MAKE IT -- YOU KNOW, WE TRY TO GET DOCTORS TO TALK
17 IN OUR LANGUAGE, YOU KNOW, AND HOPEFULLY WE CAN MAKE IT
18 COMPREHENSIBLE. BUT THERE'S GOING TO BE A LOT OF
19 INFORMATION THAT COMES TO YOU OVER THE NEXT FEW WEEKS AND I
20 HOPE THAT YOU'LL BE ABLE TO ABSORB IT AND KEEP IT ALL IN
21 MIND AS YOU GO TO DELIBERATE.
22 THE LAW DOES NOT REQUIRE TO US TO PROVE TO YOU OR TO
23 GIVE YOU EVIDENCE OF WHY THE DEFENDANT DID WHAT HE DID.
24 THAT'S NOT ONE OF THE ELEMENTS OF THE CRIME. MENTAL STATE
25 IS, BUT NOT WHY. BUT YOU HAVE TO THINK WHY. I THINK AS YOU
44
1 LISTEN TO THE EVIDENCE YOU WILL GET A FEELING FOR WHY. AND
2 THE WHY IS NOT BECAUSE HE FEELS SYMPATHETIC FOR THESE PEOPLE
3 WHOSE QUALITY OF LIFE HAS GONE DOWNHILL. THERE'S NO
4 QUESTION OF THAT. THEY ARE DEMENTED. MOST OF THEM, NOT ALL
5 OF THEM, BUT MOST OF THEM ARE DEMENTED, BUT THEY WEREN'T AS
6 BAD COMING IN AS THEY BECAME AFTER HE STARTED MEDICATING
7 THEM.
8 SO WHY DID HE DO IT? I THINK YOU'LL SEE EVIDENCE OF
9 MONEY IS PART OF IT BUT, YOU KNOW, AND AS MUCH AS YOU HATE
10 TO SEE IT, I THINK THAT YOU'LL SEE THE REASON IS HE DIDN'T
11 LIKE THESE PEOPLE. THEY WERE OLD. THEY DIDN'T HAVE MUCH
12 USE ON THE EARTH ANYMORE. NOT OUT OF SYMPATHY FOR THEM, BUT
13 AARRH JUST SEND THEM ON. NOT ONLY THAT BUT SEND THEM ON SO
14 I CAN GET SOMEBODY ELSE INTO THIS BED BECAUSE AS I DO THE
15 PSYCHOLOGICAL EVALUATIONS AND ALL THE TESTING UP FRONT, I
16 GET PAID MORE.
17 I THINK IT'S HARD TO UNDERSTAND THAT ANYONE COULD DO
18 THAT FOR THOSE REASONS AND I THINK THE EVIDENCE WILL SHOW
19 YOU THAT THAT'S EXACTLY WHAT HAPPENED. BUT REMEMBER, IT IS
20 NOT OUR BURDEN TO SHOW TO YOU WHY HE DID THIS, ONLY THAT HE
21 DID DO IT WITH THE REQUISITE MENTAL STATE. BUT I MEAN
22 THERE'S GOT TO BE SOMETHING THAT WE ALL THINK WHY ON EARTH
23 WOULD SOMEONE DO THIS? THERE'S NO UNDERSTANDING TO WHY
24 SOMETIMES PEOPLE DO WHAT THEY DO, BUT I THINK YOU WILL GET A
25 SENSE OF THAT AS YOU HEAR THE EVIDENCE.
45
1 I APPRECIATE YOUR ATTENTIVENESS. I APPRECIATE IN
2 ADVANCE YOUR ATTENTIVENESS DURING THIS TRIAL. AS THE
3 WITNESSES COME ON AND AT THE CONCLUSION OF THE TRIAL, WE
4 WILL BE ASKING YOU TO DELIBERATE AND TO COME BACK WITH A
5 VERDICT OF GUILTY OF ALL FIVE COUNTS OF HOMICIDE. THANK
6 YOU.
7 THE COURT: THANK YOU. OKAY. LADIES AND
8 GENTLEMEN, WE'RE NOW GOING TO TAKE A BREAK. AND AT EACH
9 RECESS I'M GOING TO BE TELLING YOU THIS AND I HOPE THAT JUST
10 BECAUSE I TELL YOU THIS AT EACH RECESS YOU STILL LISTEN TO
11 IT. IT IS YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR TO
12 CONVERSE WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY
13 OTHER PERSON ON ANY SUBJECT OF THE TRIAL, AND THAT IT IS
14 YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE
15 IS FINALLY SUBMITTED TO YOU.
16 I THINK THE RAIN HAS STOPPED AND SO ANYBODY WHO WANTS
17 TO GO OUTSIDE YOU CAN GO OUTSIDE THE DOOR THAT YOU CAME IN.
18 THE ONLY THING I WOULD ASK YOU TO DO IS IF YOU WOULD NOT
19 CONGREGATE RIGHT AT THAT DOOR. THAT YOU WOULD GO EITHER ON
20 THE GRASS OR OUT IN THE PARKING LOT SIMPLY BECAUSE COURT
21 PERSONNEL AND THE EMPLOYEES FROM THE CLERK'S OFFICE WHEN
22 THEY TAKE THEIR BREAKS, THEY SOMETIMES GO OUT THERE TOO AND
23 WE'VE TRIED TO TELL THEM NOT TO TALK TO ANY OF YOU. SO IF
24 YOU ARE NOT RIGHT THERE BY THE DOOR, I THINK THAT WILL BE
25 THE BEST WAY.
46
1 SO LET'S TAKE A BREAK UNTIL -- LET'S GO TO 10:05 AND
2 THEN THAT WILL GIVE US ENOUGH TIME TO STRETCH OUR LEGS AND
3 ANYTHING ELSE YOU NEED TO DO AND THEN WE'LL COME BACK AT
4 THAT POINT. EVERYONE PLEASE STAND.
5 (WHEREUPON THE JURY WAS EXCUSED.)
6 (A BRIEF RECESS WAS TAKEN.)
7 THE COURT: OKAY. PLEASE BE SEATED.
8 MR. WILSON: YOUR HONOR, MAY WE APPROACH FOR JUST A
9 SECOND, MR. STIRBA AND MYSELF I THINK WILL BE FINE, JUST A
10 MATTER I WANTED...
11 (DISCUSSION WAS HELD OFF THE RECORD.)
12 MR. WILSON: THANK YOU, JUDGE.
13 THE COURT: OKAY. LADIES AND GENTLEMEN, WE WERE
14 JUST TALKING ABOUT THE ISSUE OF IF THERE WERE SOME CHARTS
15 GOING TO BE SHOWN IN AN OPENING STATEMENT. I'M GOING TO
16 ALLOW COUNSEL FOR THE STATE TO MOVE OVER SO THAT YOU CAN SEE
17 THE CHARTS BUT SO THAT THEY CAN ALSO SEE THEM, RATHER THAN
18 TURNING THEM SO BOTH COULD HARDLY SEE HALF OF THEM.
19 MR. STIRBA, DO YOU WISH TO GIVE AN OPENING STATEMENT?
20 MR. STIRBA: I DO, YOUR HONOR. THANK YOU.
21 THE COURT: OKAY. PROCEED.
22 MR. STIRBA: MAY IT PLEASE THE COURT, COUNSEL, DR.
23 WEITZEL, LADIES AND GENTLEMEN OF THE JURY. THIS IS GOING TO
24 BE A DIFFICULT CASE. AND THE REASON WHY IT'S GOING TO BE A
25 DIFFICULT CASE IS BECAUSE WE'RE GOING TO BE DEALING WITH
47
1 FIVE PEOPLE WHO ARE AT THE END OF THEIR LIVES AND WERE IN
2 THE DYING PROCESS. AND NOT ONLY WERE THESE FIVE PEOPLE
3 SUFFERING FROM PSYCHIATRIC PROBLEMS, BUT THEY WERE SEVERELY
4 DEMENTED AND HAD A COMPLETE INABILITY TO COMMUNICATE AND TO
5 EXPRESS THEMSELVES.
6 THEY ALSO HAD MULTIPLE MEDICAL PROBLEMS. THE PROBLEMS
7 RANGE FROM VASCULAR DISEASE, HEART DISEASE, LUNG DYSFUNCTION
8 AND OTHER MEDICAL, SERIOUS MEDICAL PROBLEMS. AND ON TOP OF
9 ALL OF THIS, THEY WERE AT THE DAVIS HOSPITAL BECAUSE THE
10 NURSING HOME WHERE THEY WERE COULD NO LONGER HANDLE THEM.
11 THEY WERE COMBATIVE, UNCONTROLLABLE, ASSAULTIVE, AND THE
12 NURSING HOME COULD NO LONGER DEAL WITH THE BEHAVIOR
13 PROBLEMS. AND IN THE MIDST OF ALL THIS, THE FAMILIES HAD TO
14 MAKE VERY DIFFICULT, AND I EMPHASIZE DIFFICULT, JUDGMENTS AT
15 THE END ABOUT WHAT KIND OF CARE THEY WERE GOING TO RECEIVE
16 AT THE HOSPITAL AND WHAT CARE THEY WEREN'T GOING TO RECEIVE.
17 AND I HOPE THAT AT THE END OF THE OPENING STATEMENT
18 WHEN I SIT DOWN, AND HOPEFULLY IT WON'T BE TOO LONG FROM
19 NOW, THAT YOU REMEMBER THE CONTEXT IN WHICH TO VIEW THIS
20 CASE AND THE EVIDENCE IN THIS CASE. AND THE CONTEXT IS YOU
21 HAVE A DOCTOR WHO IS PART OF A MEDICAL TEAM PROVIDING CARE
22 TO VERY SERIOUSLY ILL AND VERY SERIOUSLY SICK, ELDERLY
23 PATIENTS IN A HOSPITAL SETTING WHERE THE FAMILIES HAVE MADE
24 CERTAIN LIMITATIONS IN ADVANCE UPON WHAT CARE SHOULD BE
25 GIVEN AND WHAT CARE SHOULD BE WITHHELD.
48
1 NOW, YOU ARE GOING TO HEAR EVIDENCE IN THIS CASE,
2 LADIES AND GENTLEMEN, ABOUT PAIN AND ABOUT SUFFERING. AND
3 YOU ARE GOING TO SEE THAT THE EVIDENCE WILL SHOW THAT DR.
4 WEITZEL AS PART OF A MEDICAL TEAM HAD AS HIS ONLY PURPOSE TO
5 ALLEVIATE PAIN AND SUFFERING. YOU ARE GOING TO ALSO HEAR
6 ABOUT FAMILIES AND THE DIFFICULT CHOICES THEY HAD TO MAKE IN
7 TERMS OF WHAT THEY WERE GOING TO DO WITH THEIR LOVED ONE
8 GIVEN THE CIRCUMSTANCES IN THE HOSPITAL WHERE HOME CARE AND
9 NURSING HOME CARE WERE NO LONGER OPTIONS.
10 YOU ARE GOING TO HEAR ALSO ABOUT THE FIVE VERY SICK AND
11 ELDERLY PATIENTS AND THE MEDICAL PROBLEMS THEY HAD AND THE
12 DIFFICULT AND COMPLICATED CARE THAT WAS REQUIRED, GIVEN THE
13 FACT THAT THEY WERE ELDERLY, GIVEN THE FACT THAT THEY WERE
14 DEMENTED, GIVEN THE FACT THAT THEIR CONDITIONS CHANGED, NOT
15 ONLY FROM DAY TO DAY, BUT FROM HOUR TO HOUR AND FROM MINUTE
16 TO MINUTE, AND NOW, LADIES AND GENTLEMEN, ALMOST FIVE YEARS
17 LATER THE STATE WANTS TO PICK APART WITH PERFECT 20/20
18 HINDSIGHT ALL THAT MEDICAL CARE AND CALL IT FIRST DEGREE
19 MURDER.
20 THE EVIDENCE WILL SHOW THAT NONE OF THIS WAS MURDER,
21 THAT THERE'S REASONABLE DOUBT WRITTEN ALL OVER THIS CASE AND
22 WHAT YOU HAVE AND WHAT THE EVIDENCE WILL SHOW IS YOU HAVE A
23 PHYSICIAN AND I'LL TELL YOU RIGHT NOW, NOT A PERFECT
24 PHYSICIAN, BUT A WELL-INTENTIONED PHYSICIAN AND A WHOLE
25 MEDICAL TEAM PROVIDING END-OF-LIFE CARE, NOTHING MORE,
49
1 NOTHING LESS.
2 YOU'LL ALSO SEE AND THE EVIDENCE WILL SHOW THAT THE
3 SOLE PURPOSE AND THE ONLY GOAL OF THIS MEDICAL TEAM WAS TO
4 PROVIDE COMFORT CARE AND MAKE SOMEBODY COMFORTABLE IN THE
5 LAST DAYS OF THEIR LIFE. AND FINALLY, LADIES AND GENTLEMEN,
6 THE EVIDENCE WILL SHOW THAT DR. WEITZEL DIDN'T CAUSE ANY OF
7 THESE DEATHS. IF HE DID ANYTHING, HE WAS ATTEMPTING TO
8 BRING COMFORT AND DIGNITY TO EACH ONE OF THEM.
9 ONE OF THE PATIENTS AT THE HOSPITAL WAS A WOMAN NAMED
10 JUDITH LARSEN, YOU SAW HER PHOTOGRAPH ON OPENING STATEMENT.
11 JUDITH WAS 93 YEARS OLD WHEN SHE WAS ADMITTED TO THE
12 HOSPITAL ON DECEMBER 6TH OF 1995. IN JANUARY OF 1995 SHE
13 HAD A VERY ACUTE SERIOUS STROKE AND SHE WAS HOSPITALIZED
14 FIRST AT LDS HOSPITAL IN SALT LAKE AND THEN AT COTTONWOOD
15 HOSPITAL AS A RESULT OF THAT STROKE. AND THAT STROKE CAUSED
16 JUDITH NOT ONLY TO BECOME CONFUSED, NOT ONLY TO BECOME
17 DISORIENTED, BUT ALSO DEPRIVED OF HER OF A GREAT ABILITY TO
18 COMMUNICATE. IT ALSO CAUSED HER OTHER IMPAIRMENTS IN TERMS
19 OF HER ABILITY TO WALK AND DO THE NORMALLY DAILY TASKS OF
20 EVERYDAY LIVING.
21 IN JULY OF 1995 SHE STARTED TO GET ILL AND SHE WAS SO
22 ILL, SHE WAS SICK, SHE WAS VOMITING, SHE WAS ONCE AGAIN
23 HOSPITALIZED AT COTTONWOOD HOSPITAL. AND IN AUGUST, THE
24 LATER PART OF AUGUST OF 1995, SHE HAD ANOTHER STROKE AND
25 THIS WAS ONCE AGAIN ANOTHER ACUTE STROKE, VERY SERIOUS
50
1 STROKE AND SHE WAS HOSPITALIZED AT COTTONWOOD HOSPITAL.
2 AND TO PUT THIS CASE IN SOME CONTEXT, I WANT TO READ TO
3 YOU THE ACTUAL ENTRY MADE BY DR. PEARCE AND THIS WILL BE IN
4 EVIDENCE IN THIS CASE. THIS IS IN AUGUST OF 1995 AND DR.
5 PEARCE IS THE DOCTOR AT COTTONWOOD WHO IS TAKING CARE OF
6 JUDITH AND HE WRITES IN HIS DISCHARGE SUMMARY, ASSESSMENT:
7 DEMENTIA, WHICH BY THE WAY, YOU'LL HEAR EVIDENCE IS A
8 TERMINAL CONDITION. TWO: NEW STROKE SYNDROME WITH APHASIA.
9 APHASIA IS A FANCY WORD FOR CAN'T SPEAK VERY WELL, YOU HAVE
10 DIFFICULTY COMMUNICATING. AND WITH LOSS OF INTEREST IN
11 SWALLOWING EITHER FOOD OR FLUIDS. THREE: PAST HISTORY OF
12 HYPERTENSION. FOUR: QUESTION OF ISCHEMIC HEART DISEASE.
13 HE GOES ON TO SAY, PLAN: IN DISCUSSION WITH THE
14 FAMILY, IT IS DECIDED THAT THE LAST SIX MONTHS OF HER LIFE
15 HAVE BEEN VERY POOR QUALITY. IN FACT, NO QUALITY AT ALL.
16 WITH POOR RECOGNITION OF PEOPLE, NO CONVERSATION, NO
17 DECISION-MAKING. THE OPTION AT THE TIME OF DISCHARGE IS TO
18 PLACE A FEEDING TUBE, PERIPHERAL NUTRITION OR N.G. TUBE,
19 N.G. STANDS FOR I THINK IT'S NASAL GASTRIC, IT'S A TUBE TO
20 ALLOW YOU TO EAT, AND THE FAMILY FEELS THAT THIS WOULD BE
21 AGGRESSIVE AND INAPPROPRIATE. THEY ALSO WANTED NO TREATMENT
22 OF INFECTION, SUCH AS URINARY INFECTIONS, PULMONARY, ET
23 CETERA. DISPOSITION: SHE WILL BE TRANSFERRED TO A NURSING
24 HOME FOR TERMINAL CARE.
25 JUDITH WENT TO A NURSING HOME AND SHE WENT TO THE
51
1 HOLLADAY CARE CENTER WHICH IS IN HOLLADAY AND THERE SHE
2 REBOUNDED. BUT WHILE SHE WAS AT THE NURSING HOME, SHE
3 BECAME VERY, VERY UNCONTROLLABLE AND THIS WAS A BIG PROBLEM.
4 AND YOU'LL SEE IN THE NURSING HOME NOTES, SOME OF THE MORE
5 POIGNANT NOTES I THINK ABOUT THIS CASE, BECAUSE HER SON
6 MERLIN -- WHAT HAPPENED IS JUDITH WOULD HAVE FALLS AND SHE
7 WOULD BE HOSPITALIZED. AND FALLS, AS YOU CAN IMAGINE, FOR
8 SOMEBODY OF 93 IS A PRETTY SERIOUS MATTER.
9 IN ONE FALL SHE HAD -- SHE SUFFERED A CONCUSSION.
10 ANOTHER FALL SHE HAD SHE HAD A THREE-INCH GASH IN HER HEAD.
11 AND YOU'LL SEE IN THE NOTES THAT HER SON MERLIN IS SAYING
12 SEDATE HER AND SEDATE HER MORE. WHY? BECAUSE HE'S
13 CONCERNED, OBVIOUSLY, ABOUT THE IMPACT OF A FALL ON A
14 93-YEAR-OLD MOTHER IN A NURSING HOME AND HE'S BEEN TO THE
15 HOSPITAL AND HE KNOWS WHAT'S HAPPENING. BUT SHE IS
16 UNCONTROLLABLE. THEY PUT RESTRAINTS ON HER, SHE GETS OUT OF
17 HER RESTRAINTS, SHE FALLS. SO FINALLY THE NURSING HOME SAYS
18 SEND HER TO DAVIS FOR AN EVALUATION.
19 SHE ARRIVES ON DECEMBER 6TH. AND I WOULD SAY THE FIRST
20 FEW WEEKS OF HER HOSPITAL STAY I WOULD SAY ARE RELATIVELY
21 UNEVENTFUL. HOWEVER, ON THE 26TH, ON OR ABOUT THE 26TH OF
22 DECEMBER, SHE HAS A SEIZURE AND IT'S A GRAND MAL SEIZURE AND
23 THEN SHE STARTS THROWING UP AND SHE THROWS UP CONTINUOUSLY
24 FOR 26 HOURS STRAIGHT. AND ONE OF THE THINGS THAT THEY
25 NOTICE WHEN SHE'S THROWING UP IS SHE'S THROWING UP WHAT THEY
52
1 CALL COFFEE GROUNDS. AND I ALWAYS HAVE A DIFFICULT TIME
2 WITH THIS WORD, EMESIS. AND WHAT THAT MEANS IS THAT'S A
3 FANCY WAY OF SAYING SHE HAS BLOOD IN HER VOMIT AND WHAT THAT
4 MEANS IS SHE'S BLEEDING INTERNALLY.
5 DR. WEITZEL TALKS TO MERLIN AND HE GOES OVER THE
6 SITUATION WITH HIS 93-YEAR-OLD MOM WHO HAS BEEN THROUGH THE
7 YEAR THAT SHE HAS JUST BEEN THROUGH. AND MERLIN SAYS,
8 CONSISTENT WITH WHAT HE SAID BACK IN AUGUST AND CONSISTENT
9 WITH EVERYTHING ELSE THAT YOU'LL SEE IN THE CHARTS, HE SAYS,
10 JUST KEEP HER COMFORTABLE IS ALL I WANT YOU TO DO. AND
11 THAT'S PRECISELY WHAT NOT ONLY DR. WEITZEL DID BUT THE WHOLE
12 NURSING STAFF THAT WAS ATTENDING TO HER. THEY KEPT HER
13 COMFORTABLE UNTIL SHE DIED ON JANUARY 3RD OF 1996.
14 AND PART OF COMFORT CARE -- AND YOU'LL HEAR EXPERTS.
15 AND THE GREAT THING ABOUT THIS CASE, IF YOU WANT TO HEAR A
16 LOT OF EXPERTS, YOU ARE IN A PERFECT POSITION BECAUSE THERE
17 WILL BE A LOT OF THEM IN THIS CASE. WE'LL CALL SOME, THE
18 STATE WILL CALL SOME. BUT THERE'S GOING TO BE A GENERAL
19 AGREEMENT NOT ONLY WITH OUR EXPERTS BUT ALSO THE STATE'S
20 EXPERTS, SOME OF THEM, AND THEY ARE GOING TO TELL YOU, THAT
21 COMFORT CARE OR END-OF-LIFE CARE INVOLVES A LOT OF THINGS.
22 AND ONE OF THE THINGS IT INVOLVES IS MEDICATION. AND
23 THE REASON WHY IS BECAUSE PEOPLE ARE EITHER IN PAIN OR THEY
24 ARE SUFFERING FOR A LOT OF DIFFERENT REASONS AND THAT'S AN
25 APPROPRIATE THING TO DO IS TO KEEP THEM COMFORTABLE. AND
53
1 THEY ARE GOING TO TELL YOU THAT MORPHINE AS A MEDICATION IS
2 SORT OF LIKE THE GOLD STANDARD, IF YOU WILL, IN TERMS OF A
3 MEDICATION THAT ROUTINELY IS USED IN END-OF-LIFE CARE. AND
4 THEY ARE GOING TO TELL YOU A PHYSICIAN HAS AN ABSOLUTE DUTY,
5 IN OTHER WORDS, IT'S ETHICAL AND IT'S ETHICALLY REQUIRED
6 THAT IF A PHYSICIAN SEES SOMEBODY IN PAIN OR A PHYSICIAN HAS
7 A PATIENT WHO IS SUFFERING, A PHYSICIAN HAS AN ABSOLUTE
8 ETHICAL RESPONSIBILITY TO DO SOMETHING ABOUT IT.
9 AND ALSO THEY ARE GOING TO TELL YOU THAT IF A PHYSICIAN
10 IN END-OF-LIFE CARE HAS TO PRESCRIBE MEDICATION TO PROVIDE
11 COMFORT, AND EVEN IF THAT PHYSICIAN KNOWS THAT THAT MIGHT
12 HAVE A TENDENCY TO HASTEN A DEATH, THAT'S STILL ETHICALLY
13 APPROPRIATE AND A PHYSICIAN IS OBLIGATED TO DO IT IF THE
14 PURPOSE OF ADMINISTERING AND PRESCRIBING THE MEDICATION IS
15 TO KEEP SOMEBODY COMFORTABLE AND TO ALLEVIATE PAIN AND
16 SUFFERING.
17 NOW, YOU HAVE FIVE CASES, FIVE COUNTS. IT'S ALMOST
18 LIKE WE HAVE FIVE DIFFERENT CASES, AND WE DO. THERE IS ONE
19 CASE THAT IS DIFFERENT THAN THE OTHER FOUR AND THAT'S THE
20 CASE OF ELLEN ANDERSON, PATIENT ELLEN ANDERSON. BECAUSE
21 ELLEN ANDERSON IS NOT REALLY A CASE AND THE FACTS WILL SHOW
22 THIS, THE EVIDENCE WILL SHOW THIS OF END-OF-LIFE CARE, ELLEN
23 ANDERSON IS PURELY AND SIMPLY, IF YOU WILL, A PAIN CASE
24 WHERE MEDICATION IS PRESCRIBED FOR PAIN. AND LET ME GIVE
25 YOU A LITTLE HISTORY ABOUT ELLEN BECAUSE I THINK THIS IS
54
1 IMPORTANT. REMEMBER, THERE'S GOING TO BE A LOT OF MEDICAL
2 TESTIMONY HERE BUT EVERY PATIENT HAS A HISTORY AND THAT
3 CIRCUMSTANCE OF GOING INTO THE HOSPITAL IS VERY IMPORTANT.
4 BUT BRIEFLY, ELLEN DID HAVE A HIP FRACTURE IN JUNE OF
5 1995 AND SHE LOST 30 POUNDS BY THE TIME WE HIT DECEMBER OF
6 1995 AND SHE WASN'T A VERY LARGE WOMAN TO BEGIN WITH. AND
7 HER FAMILY IS GOING TO TELL YOU THAT THEY HAD HER IN A
8 NURSING HOME AND AS THEY DESCRIBE IT FOR ABOUT SIX MONTHS
9 SHE WAS IN WHAT THEY WOULD CALL AN ACUTE PANIC ATTACK
10 CONSTANTLY, NEVER A MINUTE WASN'T SHE IN THIS STATE. AND
11 SHE WOULD SCREAM AND SHE WOULD SCREAM UNCONTROLLABLY AND SHE
12 WAS ABSOLUTELY TERRIFIED. AND THE FAMILY IS STRUGGLING
13 DEALING WITH THIS.
14 AND FINALLY ONE OF HER DAUGHTERS, DIANE, COMES INTO THE
15 NURSING HOME AT THE END OF DECEMBER OF 1995 AFTER HAVING
16 DEALT WITH THIS FOR SIX MONTHS AND SEEING THEIR POOR MOM IN
17 THAT SITUATION AND SAYS, I'VE HAD ENOUGH, I DON'T WANT HER
18 HERE ANYMORE BECAUSE WHATEVER YOU ARE GIVING HER ISN'T
19 WORKING. AND YOU KNOW WHAT? I WANT HER TO GET MORPHINE AND
20 HOW CAN I GET HER TO GET MORPHINE? I CAN'T DO IT IN A
21 NURSING HOME, BUT IF WE HOSPITALIZE HER, MAYBE SHE CAN GET
22 SOME MORPHINE BECAUSE WE'VE TRIED EVERYTHING ELSE AND AT
23 LEAST MAYBE MORPHINE WILL HAVE A SEDATING EFFECT. SO ELLEN
24 IS THEN TRANSFERRED TO THE DAVIS HOSPITAL.
25 AND I'M GOING TO PUT THIS UP THEN WE'LL GO THROUGH A
55
1 NUMBER OF THESE. CAN EVERYBODY SEE THAT? I DON'T KNOW IF
2 THIS IS THE BEST POSITION, BUT ANYWAY, THIS IS NOT A TIME
3 LINE BECAUSE ELLEN WAS IN THE HOSPITAL FROM 12/29 THROUGH
4 12/30. THIS IS ALL FROM THE MEDICAL RECORDS. THIS IS WHAT
5 THE ENTRIES ARE.
6 AND AS YOU CAN SEE IN THIS PARTICULAR CASE AND YOU'LL
7 SEE OTHERS, AND I'LL TELL YOU THEY ALL SORT OF -- THE
8 RECORDS ARE ALL SORT OF THE SAME, YOU CAN FOLLOW THEM.
9 THERE'S ALWAYS AN ADMISSION/EVALUATION AND OF COURSE THERE'S
10 SOME MEDICAL HISTORY THAT'S TAKEN BECAUSE OBVIOUSLY THAT'S
11 IMPORTANT FOR THE HEALTHCARE PROVIDERS. AND THEN THERE'S
12 USUALLY AN INDICATION OF WHAT MEDICATIONS THE PATIENTS WERE
13 ON ON ADMISSION BECAUSE OBVIOUSLY THAT'S IMPORTANT.
14 AND I'LL TELL YOU RIGHT NOW XANAX, THAT'S AN
15 ANTIANXIETY DRUG, IT'S A SEDATING DRUG, IT'S A SEDATIVE.
16 AMITRIPTYLINE IS A SEDATING DRUG, THAT'S AN ANTIDEPRESSANT.
17 AMBIEN IS ALSO A SEDATING DRUG. LORTAB IS A PAIN MEDICATION
18 AND YOU'LL HEAR DOCS TELL YOU ABOUT THIS, BUT I'M JUST
19 SAYING THESE ARE THE KIND OF THINGS YOU'LL SEE. AND THEN
20 THERE'S ALWAYS AN INITIAL ADMISSION NOTE THAT YOU'LL SEE FOR
21 EACH ONE, IT'S USUALLY DONE BY THE NURSES.
22 AND I JUST WANT YOU TO SEE AS WE GO THROUGH THESE TIME
23 LINES THERE ARE GOING TO BE ENTRIES IN THE MEDICAL RECORDS.
24 AND ONE THING WE'VE DONE WHICH HOPEFULLY WILL BE HELPFUL IS
25 INSTEAD OF HAVING TO READ THE CHICKEN SCRATCH OF SOME
56
1 PHYSICIAN, WE HAD THEM TRANSCRIBED AND TYPED UP SO YOU HAVE
2 THE PAGE IN FRONT OF AND YOU CAN SEE WHAT THE DOCTORS AND
3 NURSE WROTE AND RIGHT ACROSS IT WILL BE TYPED SO IT'S EASY
4 TO READ. ANYWAY, YOU'LL SEE ENTRIES BY DR. WEITZEL AND
5 ENTRIES BY NURSES AND THERE'S A WHOLE SERIES OF NURSES AND
6 THESE ARE IN THE NURSES' NOTES.
7 BUT THESE ARE THE FACTS WITH MS. ANDERSON. SHE COMES
8 IN AND SHE ARRIVED I BELIEVE AT ABOUT 4 O'CLOCK IN THE
9 AFTERNOON. AND I'LL TELL YOU DR. WEITZEL IS FULLY PREPARED
10 TO NOT ONLY DOCUMENT THAT HE SAW HER THE DAY SHE ARRIVED, HE
11 ACTUALLY SAW HER AND HE CAN DOCUMENT THAT, BUT HE'LL TELL
12 YOU ABOUT HIS EVALUATION. AND THIS IS WHAT HE PUTS IN HIS
13 INITIAL EVALUATION, GENERALLY THE OVERVIEW OF HER MEDICAL
14 SITUATION.
15 AND THEN HERE THE NURSE -- THIS IS WHAT THE NURSE
16 STATES, PATIENT ADMITTED IN COMPANY OF DAUGHTER FROM CARE
17 CENTER. DETERIORATING OVER THE PAST THREE WEEKS. CRYING
18 AND SCREAMING INCONSOLABLY EVEN WHEN FAMILY IS PRESENT.
19 MORPHINE 10 MILLIGRAMS, S.O. 4 BY THE WAY, I HAVE TO PUT IT
20 IN THERE BECAUSE IT'S IN THERE, IT MEANS -- IT'S SULFATE.
21 IT'S JUST -- THAT'S WHAT THEY ALWAYS PUT IN, S.O. 4 FOR
22 MORPHINE, BUT THAT'S WHAT WE'RE TALKING ABOUT, INTRAMUSCULAR
23 FOR SEVERE PAIN. PATIENT BECOMES RIGID AND SCREAMS WHEN
24 TOUCHED RELATED TO PROFOUND OSTEOPOROSIS WHICH CAUSED HER TO
25 HAVE A SERIES OF FRACTURES. SHE HAD A NUMBER OF COMPRESSION
57
1 FRACTURES BECAUSE THE BONES -- YOUR BONES ARE VERY BRITTLE
2 AND IT'S VERY PAINFUL WHEN YOU HAVE THOSE FRACTURES. SO
3 THAT IS THE FIRST MEDICATION.
4 THEN WE GO OVER TO THE NEXT DAY AT 1 O'CLOCK THE NURSE
5 CHARTS, PATIENT'S RESPIRATION IS VERY ERRATIC, 8 TO 16.
6 BLOOD PRESSURE 75/50. DR. WEITZEL PAGED, A NURSING
7 SUPERVISOR INFORMED OF PATIENT'S CONDITION. THE NURSING
8 SUPERVISOR IS ALWAYS NOTIFIED WHEN A NURSE BELIEVES THAT
9 SOMEONE IS ABOUT TO DIE, THAT WAS HOSPITAL PROTOCOL AND
10 THAT'S THE SIGNIFICANCE OF THAT ENTRY. AND THEN AT 3:15,
11 PATIENT AWAKENED, THRASHING ARMS AND ATTEMPTING TO THROW
12 BODY. PATIENT MOANING AND SCREAMING. DR. WEITZEL PAGED
13 AGAIN, THIS IS BY TRACY SCHOLL, A NURSE. AND THEN AT 3:30,
14 DR. WEITZEL RETURNS PAGE, INFORMED OF PATIENT'S CONDITION.
15 IN OTHER WORDS, ALL THROUGHOUT HERE AND COUNSEL IS
16 QUITE RIGHT IN HER OPENING STATEMENT, THE NURSES THERE ARE
17 PROVIDING MOST OF THE CARE. AND SO THEY ARE GIVING
18 INFORMATION TO THE DOCTORS ABOUT WHAT THEY ARE ASSESSING IS
19 THE CLINICAL POSITION OF THE PATIENT AND THAT'S WHAT NURSE
20 SCHOLL IS DOING HERE. SHE TELLS DR. WEITZEL AND THEN
21 MORPHINE IS GIVEN INTRAMUSCULAR PER THE DOCTOR'S ORDERS AND
22 THEN THAT'S WHAT HAPPENS, AND THEN MS. ANDERSON DIED AT 8:55
23 A.M.
24 THE FACTS IN THIS CASE AND THIS MS. ANDERSON WAS
25 AUTOPSIED BY THE MEDICAL EXAMINER AND HE'LL TESTIFY AND
58
1 HE'LL TELL YOU THAT IN HIS EXAMINATION SHE HAD ACUTE
2 PNEUMONIA. IN OTHER WORDS, REMEMBER, THERE WAS A CHEST
3 X-RAY DONE AT ABOUT FIVE OR SIX IN THE MORNING AND THERE WAS
4 AN E.K.G. THAT WAS DONE THAT WAS ABNORMAL. AND HE'LL TELL
5 YOU THAT THERE ARE AT LEAST FOUR OR FIVE REASONS, HE
6 COULDN'T TELL EXACTLY, BUT FOUR OR FIVE REASONS ALL OF WHICH
7 COULD HAVE CAUSED HER DEATH. HE DOES NOT KNOW BECAUSE ANY
8 ONE OF THEM WOULD BE BEEN SUFFICIENT, AND ONE OF THEM WAS
9 SHE HAD ACUTE PNEUMONIA UPON ADMISSION WHICH YOU'LL SEE IN
10 THE X-RAY. IT IS SHOWN RIGHT THERE IN THE X-RAY WHAT THE
11 PROBLEM IS AND THERE ARE OTHER THINGS, CARDIAC AND WHAT HAVE
12 YOU, RELATED TO THE CIRCUMSTANCES OF HER DEATH. AND WE'LL
13 HAVE OUR OWN EXPERT WHO IS GOING TO TELL YOU THAT SHE DIDN'T
14 DIE AT ALL ANYTHING RELATED TO MORPHINE.
15 NOW, YOU ARE GOING TO SEE A PATTERN HERE BUT IT'S A
16 PATTERN OF CIRCUMSTANCE. IT'S NOT GOING TO BE A PATTERN OF
17 CRIMINALITY. FOR EXAMPLE, YOU ARE GOING TO SEE IN THE OTHER
18 FOUR CASES THAT ALL OF THESE PATIENTS ARE SUFFERING FROM
19 SEVERE DEMENTIA OR ALZHEIMERS AND CAN'T COMMUNICATE. AND
20 YOU ARE GOING TO SEE THAT THEY ARE ALL ADMITTED BECAUSE THEY
21 NEED TO BE SEDATED. AND YOU'LL SEE IN THE PROGRESS NOTES
22 AND THE NURSING NOTES FROM THE NURSING HOMES THAT THEY ARE
23 ALL BEING SEDATED EITHER WITH ATIVAN OR HALDOL WHICH IS
24 ANOTHER SEDATING MEDICATION OR SOMETHING LIKE THAT. WHY?
25 BECAUSE THIS IS AN ATTEMPT TO CONTROL THEIR BEHAVIOR. SO
59
1 WHEN THEY ARE GOING INTO THE HOSPITAL THEY ARE ALL ON PSYCH
2 MEDS AND THEY ARE ALL ON SEDATING CONTROL MEDS.
3 YOU ARE ALSO GOING TO SEE THAT THEY ARE ALL HIGH-RISK
4 PATIENTS GIVEN THE NATURE OF THEIR AGE, THEIR DEMENTIA AND
5 THEIR OTHER MEDICAL COMPLICATIONS. AND YOU ARE GOING TO SEE
6 AND I THINK SIGNIFICANTLY THAT THEY ALL HAD, THEY ALL HAD --
7 THE OTHER FOUR ALL HAD LIVING WILLS OR MEDICAL DIRECTIVES
8 WHICH THEY PROVIDED TO THE HOSPITAL WHICH LIMITED THE KIND
9 OF CARE THEY COULD GET.
10 NOW, LET'S LOOK AT SOME OTHERS AND WE'LL GO THROUGH
11 THEM IN SORT OF A TIME LINE SO YOU CAN GET SOME FEEL FOR
12 WHAT THE FACTS WILL BE IN THIS CASE. HOW IS THAT? IS THAT
13 SOMETHING YOU ALL CAN SEE?
14 NOW, THIS IS -- THIS IS PATIENT ENNIS ALLDREDGE AND
15 YOU'LL SEE THESE AGAIN. BUT ONCE AGAIN, THEY ALL START WITH
16 THE DAY HE'S ADMITTED AND THEY GO THROUGH THE TIME OF THE
17 DEATH AT 1/14 IN THIS CASE OF '96. AND WHAT WE'VE ATTEMPTED
18 TO DO IS TO PROVIDE IN COLOR -- IN THE GREEN, THESE ARE THE
19 PSYCH MEDS THAT WERE ORDERED AND ACTUALLY GIVEN AT THE
20 HOSPITAL. THE BLUE IS THE MORPHINE WHICH WAS GIVEN TO THE
21 PATIENT AT THE HOSPITAL. AND IF YOU LOOK AT THIS ONE, ONCE
22 AGAIN IF WE START OUT WITH THE ADMISSION, WE HAVE AN
23 83-YEAR-OLD WHITE MALE ADMITTED AND ORIENTED TO THE UNIT.
24 PATIENT ACCOMPANIED BY HIS WIFE OF SEVEN YEARS. PATIENT IS
25 VERY COMBATIVE AND AGITATED. PATIENT NOT ORIENTED TO TIME,
60
1 PLACE OR SITUATION, AND IT GOES ON FROM THERE. AND EVEN
2 SAYS, IS VERY STRONG AND GRABS AT STAFF, HURTING STAFF.
3 THAT'S THE SIGNIFICANCE OF THE DIFFICULTY OF THE BEHAVIOR.
4 THEN WE HAVE HIS HISTORY, ALZHEIMERS, T-CELL LYMPHOMA,
5 WHICH IS A FORM OF CANCER, DIABETES WHICH WAS UNCONTROLLABLE
6 FOR 25 YEARS, HE WAS ON INSULIN. HERNIA REPAIR,
7 HYPERTENSION, AND HE HAD PREVIOUS BYPASS SURGERY. HE HAD
8 CORONARY ARTERY DISEASE ON ADMISSION. AND THEN HIS
9 MEDICATIONS ON ADMISSION, ATIVAN WHICH IS, ONCE AGAIN, A
10 SEDATING ANTIANXIETY MEDICATION. THIS WAS ALL THAT WAS
11 GIVEN WHEN HE WAS AT THE NURSING HOME. THIS HAS NOTHING TO
12 DO WITH THE HOSPITAL. RISPERDAL, WHICH IS A PSYCH
13 MEDICATION WHICH I BELIEVE HE ALSO GOT WHEN HE WAS IN THE
14 HOSPITAL. VOLMAX IS ANOTHER PSYCH MEDICATION, HYTRIN IS
15 ANOTHER ONE, BUSPAR IS ANOTHER ONE AND THEN HE ALSO GOT
16 MELLARIL AND HALDOL AT THE NURSING HOME. ONCE AGAIN, THESE
17 ARE ALL PSYCH MEDS THAT WERE PROVIDED. THEY ARE ALL
18 SEDATING TO HIM IN AN ATTEMPT TO CONTROL HIM. D.N.R., DO
19 NOT RESUSCITATE. HE HAD A LIVING WILL AND THERE WERE
20 MEDICAL DIRECTIVES LIMITING THE CARE.
21 NOW, SIGNIFICANTLY IF WE FLIP OVER TO HERE TO GIVE YOU
22 SOME IDEA HOW DIFFICULT THIS WAS. THIS IS -- TRACY SCHOLL
23 IS THE NURSE AGAIN, SHE STATES, PATIENT REMAINS POSEY. THEY
24 HAD TO PUT HIM IN A RESTRAINT BECAUSE HE WAS VIOLENT AND
25 COMBATIVE SO HE'S IN AN ACTUAL RESTRAINT IN THE BED AND
61
1 THAT'S WHAT THE POSEY IS. PATIENT HAD LARGE BOWEL MOVEMENT,
2 HAS SMEARED FECES ALL OVER, INCLUDING FACE, BED RAILS, ET
3 CETERA. ON THE 12TH, HE HAS AN M.R.I. AND YOU'LL SEE THIS,
4 THIS WILL BE PART OF THE RECORD. AN M.R.I. IS A WAY THAT
5 YOU GO -- I THINK IT'S CALLED MAGNETIC RESONANCE IMAGING,
6 BUT IT'S A WAY TO SEE IF THERE IS A PROBLEM WITH THE STROKE
7 EVENT.
8 AND THE M.R.I. REPORT COMES BACK, AND I'LL TELL YOU, IT
9 IS SOMEWHAT AMBIGUOUS AS TO WHAT REALLY IS FOUND. BUT IT
10 WAS CONSIDERED BY NOT ONLY DR. WEITZEL, BUT THE NURSING
11 STAFF AS INDICATING HE HAD A STROKE. AND LAURIE WILLSON IS
12 A NURSE AND SHE WRITES THIS -- THIS IS WHAT SHE WROTE ON
13 THIS DAY INTERVENTION: M.R.I., THAT'S THAT MAGNETIC
14 RESONANCE IMAGING, DR. CLINGER, HE'S THE GUY THAT DID IT,
15 CALLED TO REPORT EVIDENCE OF POSSIBLE NEW INFARCTION, THAT'S
16 A STROKE WHERE YOUR BRAIN DOESN'T GET THE BLOOD AND
17 THEREFORE THERE'S A PROBLEM, TO LEFT OCCIPITAL LOBE.
18 PATIENT REMAINS RESTLESS AND MINIMALLY RESPONSIVE EXCEPT TO
19 DISCOMFORT. DR. WEITZEL HAS BEEN NOTIFIED OF THE RESULTS.
20 IN VIEW OF HIS DIABETES AND POSSIBLE DEHYDRATION, DR.
21 WEITZEL HAS ORDERED I.V. DR. WEITZEL PLANS TO TALK WITH
22 FAMILY IN MORNING REGARDING M.R.I. RESULTS AND PLAN OF CARE.
23 THE NEXT DAY, THERE'S NO MORPHINE, NONE. ON THE 12TH,
24 THE 11TH OR THE 10TH FOR ANY PURPOSE. ON THE 13TH, DR.
25 WEITZEL SAYS, ADDENDUM -- THIS IS IN HIS PROGRESS NOTES,
62
1 YOU'LL HAVE THIS ALL WITH YOU, IT'S PART OF THE EVIDENCE.
2 SPOKE WITH WIFE EXTENSIVELY. SHE FEELS STRONGLY THAT NO
3 EXTRAORDINARY MEASURES SHOULD BE TAKEN TO PROLONG ENNIS'
4 LIFE. GIVEN THE STROKE FOUND ON THE M.R.I., SHE REQUESTS WE
5 DISCONTINUE I.V. NO FLUIDS, NO FOOD, NO NOURISHMENT, AND
6 GIVE COMFORT CARE. LET HIM EXPIRE NATURALLY.
7 SO THEN DR. WEITZEL PUTS IN HIS PLAN WHICH IS
8 CONSISTENT WITH THAT AND THEN HE DECIDES APPROPRIATELY THAT
9 HE'S GOING TO START MORPHINE 10 MILLIGRAMS EVERY THREE HOURS
10 INTRAMUSCULAR WITH ATIVAN. AND BY THE WAY, THE MORPHINE
11 STARTS AT 8 O'CLOCK IN THE MORNING. THE CONVERSATION WITH
12 THE WIFE TOOK PLACE BEFORE 8 O'CLOCK, I MEAN, THIS -- YOU
13 CAN'T SEE THAT RIGHT HERE BUT THAT'S WHEN IT OCCURRED. AND
14 THAT'S ALL GIVEN FOR COMFORT BECAUSE THE FAMILY HAS DECIDED
15 TO LET HIM GO. AND ONE OF THE THINGS THEY ALSO HAVE DECIDED
16 IS TO DECREASE THE INSULIN. THIS GENTLEMAN HAD
17 UNCONTROLLABLE DIABETES. AND YOU'LL HEAR -- THE MEDICAL
18 TESTIMONY WILL BE IF YOU WITHDRAW THE INSULIN FROM SOMEBODY
19 LIKE MR. ALLDREDGE, HE WILL EVENTUALLY LAPSE INTO A DIABETIC
20 COMA AND DIE.
21 NOW, FINALLY, THIS -- I'M JUST HIGHLIGHTING THESE,
22 YOU'LL HAVE ALL THIS, BUT IT'S RIGHT HERE. THE NURSE, ONCE
23 AGAIN, LAURIE WILLSON, SHE'LL TESTIFY IN THIS TRIAL. YOU'LL
24 HEAR FROM HER, WE'LL CALL HER, 600, DR. WEITZEL GAVE
25 TELEPHONE ORDER FOR MORPHINE 10 MILLIGRAMS INTRAMUSCULAR
63
1 GIVEN IN LEFT GLUTEUS. NO RESPONSE FROM PATIENT TO NEEDLE
2 STICK. FAMILY REMAINS WITH PATIENT COMFORTING HIM AND
3 TALKING WITH HIM ASKING HIM TO LET GO.
4 NOW, I'VE TOLD YOU ABOUT THE TEAM. TO HELP YOU, THESE
5 ARE ALL THE FOLKS WHO PROVIDED MR. ALLDREDGE CARE. IN OTHER
6 WORDS, IT WASN'T JUST DR. WEITZEL. THESE ARE ALL PEOPLE WHO
7 PROVIDED HIM SOME FORM OF CARE. EVERY ONE OF THESE PEOPLE
8 HAD FULL ACCESS AT ANY TIME TO THE MEDICAL RECORDS AND THE
9 MEDICAL CHARTS. ANY TIME THESE PEOPLE COULD HAVE SEEN WHAT
10 MEDICATIONS WERE BEING GIVEN AND WHAT THE CARE WAS BEING
11 PROVIDED.
12 AND MORE IMPORTANTLY, WE HAVE ASTERISKS UNDER THIS IS
13 EARLENE COZZENS, SHE'S A NURSE. WE HAVE AN ASTERISK BY
14 BONNIE HARDEY, SHE'S A NURSE, AN ASTERISK BY LYNN LONG,
15 NURSE, AND LAURIE WILLSON, NURSE. AND THE REASON FOR THAT
16 IS THOSE FOUR INDIVIDUALS ADMINISTERED THE MORPHINE. IN
17 OTHER WORDS, THERE WILL BE NO EVIDENCE IN THIS TRIAL THAT
18 DR. WEITZEL EVER GAVE ONE OF THESE PATIENTS AN INJECTION.
19 EVERY SINGLE INJECTION WAS GIVEN BY A NURSE, AND THESE
20 NURSES WILL TESTIFY.
21 AND I'LL TELL YOU RIGHT NOW THAT LYNN LONG WILL TESTIFY
22 AND SHE WILL TELL YOU BASED UPON HER CLINICAL ASSESSMENT,
23 SHE WAS THERE, SHE SAW THE PATIENT, SHE OBSERVED THE
24 PATIENT, SHE HAD A FEEL FOR WHAT THE MEDICAL SITUATION WAS,
25 AND SHE WILL TELL YOU THERE WAS ABSOLUTELY NOTHING WRONG,
64
1 NOTHING WITH THE MEDICATION PRACTICES IN TERMS OF
2 ADMINISTERING MORPHINE FOR COMFORT CARE.
3 LAURIE WILLSON, WE'RE GOING TO CALL HER. WE HAD TO
4 BRING HER IN ALL THE WAY IN FROM PENNSYLVANIA AND SHE'LL
5 TELL YOU -- AND SHE ACTUALLY HAS A MASTER'S AS A NURSE AND
6 SHE IS A NURSE PRACTITIONER SO THAT SHE HAS A LICENSE IN THE
7 STATE OF UTAH TO GIVE MEDICATIONS. AND SHE'LL TELL THAT YOU
8 SHE WAS THERE, TOO, AND WHAT SHE SAW WITH RESPECT TO EACH
9 ONE OF THESE PATIENTS WAS TOTALLY APPROPRIATE, WAS TOTALLY
10 CONSISTENT WITH GOOD NURSING PRACTICE AND CERTAINLY THERE
11 WAS NOTHING WRONG WITH THE CARE. AND I'LL ALSO TELL YOU
12 THERE'S NOT ONE NURSE THAT'S GOING TO TESTIFY IN THIS TRIAL
13 THAT'S GOING TO TELL YOU THAT ANY INJECTION THEY GAVE, ANY
14 INJECTION THEY GAVE WHEN THEY GAVE IT, THEY THOUGHT IT WAS
15 GOING TO KILL A PATIENT.
16 THIS IS ANOTHER TIME LINE, ONCE AGAIN, OUT OF THE
17 MEDICAL RECORDS FOR MS. SMITH, LYDIA SMITH. AND YOU CAN GO
18 THROUGH THE SAME PROCESS, I'M GOING THROUGH THIS QUICKLY FOR
19 PURPOSES OF JUST GIVING YOU SOME GENERALIZED UNDERSTANDING,
20 BUT HERE, ONCE AGAIN, THE GREEN ARE THE PSYCH MEDS. THESE
21 WERE ACTUALLY GIVEN THE TIMES AND THE DOSAGES IN THE
22 HOSPITAL. YOU'LL SEE THESE AND THEN I HAVE, OF COURSE, THE
23 DATE.
24 SHE WAS ADMITTED TO THE HOSPITAL ON 12/20/95, SHE DIED
25 ON 1/8/96. AND WHAT IS SIGNIFICANT HERE IS SHE INDEED WAS
65
1 VERY COMBATIVE. SHE HAD A STROKE RIGHT IN NOVEMBER OF 1995,
2 A SEVERE STROKE. SHE HAD A HISTORY OF CONGESTIVE HEART
3 FAILURE, ATRIAL FIBRILLATION WHICH IS AN EVENT THAT CAN
4 OCCUR WITH THE HEART THAT CAN CAUSE SUDDEN HEALTH, (DEATH?)
5 HYPERTENSION AND SHE HAD A HEART VALVE REPLACEMENT. SHE WAS
6 ON A NUMBER OF MEDICATIONS AND SERZONE, WHICH IS ONE OF THE
7 PSYCH MEDS THAT WAS SHE WAS ON WHEN SHE WAS ADMITTED, YOU'LL
8 SEE SHE WAS GIVEN SERZONE AGAIN IN THE HOSPITAL. HALDOL IS
9 ANOTHER PSYCH MED AND I'M NOT SURE SHE GOT ANY HALDOL IN THE
10 HOSPITAL BUT IT'S A SEDATING MEDICATION TO TRY TO GET
11 CONTROL.
12 AND SIGNIFICANTLY, SIGNIFICANTLY THERE'S AN ENTRY RIGHT
13 HERE THIS ENTRY ON 12/28 AND KAY STEGLICH IS A C.S.W. WHICH
14 IS A CERTIFIED SOCIAL WORKER. SHE'S ONE OF THE SOCIAL
15 WORKERS THAT WOULD COME IN AND PROVIDE CERTAIN KINDS OF
16 ASSISTANCE. SHE TALKS WITH THE FAMILY AND THE FAMILY
17 VERBALIZES CONCERN REGARDING DISCHARGE PLANS. THEY
18 EMPHASIZE IMPORTANCE OF DECREASE IN PATIENT'S AGGRESSIVE
19 BEHAVIOR IF SHE'S TO BE ADMITTED TO ROCKY MOUNTAIN BOUNTIFUL
20 AFTER DISCHARGE. THE NURSING HOMES -- ONCE SOMEBODY GETS
21 COMBATIVE OR ASSAULTIVE, THE NURSING HOMES NO LONGER WILL
22 TAKE THEM AND THE REASON FOR THAT IS IS THEY CAN BE A DANGER
23 TO THEMSELVES, THEY CAN BE A DANGER TO THE STAFF OR THEY CAN
24 BE A DANGER TO OTHER PATIENTS.
25 SO THE WHOLE PURPOSE OF HER BEING HERE IS TO TRY TO GET
66
1 MS. SMITH SO THAT SHE WOULDN'T BE SO COMBATIVE AND
2 ASSAULTIVE. AND IN THE NURSING HOME, YOU'LL READ THIS,
3 THERE WAS ONE INCIDENT RIGHT BEFORE SHE WAS ADMITTED WHERE
4 SHE ACTUALLY WENT OUT, OUT OF THE NURSING HOME, WAS IN THE
5 PARKING LOT, A BUNCH OF NURSES CAME OUT TO TRY TO GET HER TO
6 COME BACK AND SHE PHYSICALLY FOUGHT THEM. I MEAN, THAT'S
7 THE BEHAVIOR WE'RE TALKING ABOUT, AND OBVIOUSLY, THE FAMILY
8 IS CONCERNED ABOUT THE AGGRESSION AND TRYING TO RESOLVE IT.
9 WE GO OVER HERE AND YOU CAN -- YOU CAN READ THESE.
10 THESE BASICALLY -- BUT SEE THERE'S NOTHING THAT OCCURS
11 SIGNIFICANT IN TERMS OF ANY KIND OF SEDATION OR ANY KIND OF
12 POSITIVE EFFECT UNTIL WE GET TO THE 6TH OF JANUARY. AND
13 THERE YOU HAVE, FINALLY, BEHAVIOR IS NOT -- PATIENT HAS NOT
14 BEEN VERY AGGRESSIVE. SHE'S BEEN SLEEPING MOST OF THE DAY.
15 WHEN AWAKE SHE'S BEEN TRYING TO STRIP. WHEN OFFERED MEALS,
16 SHE HAS SPIT IT OUT AT US. BEHAVIOR: PATIENT HAS BEEN
17 QUIET THIS SHIFT. RESTING QUIETLY WITH EYES CLOSED MOST OF
18 THE SHIFT. RESPIRATION: EVEN AND UNLABORED.
19 AND THEN WE GET TO THE 7TH AND THIS IS A CRITICAL DAY.
20 AND YOU'LL SEE THAT DR. WEITZEL STATES IN HIS PROGRESS NOTE
21 DOWN HERE, VERY WEAK. WHAT HAPPENED IS MS. SMITH'S KIDNEYS
22 SHUT DOWN AND SHE STOPPED TAKING FOOD, SHE STOPPED TAKING
23 NOURISHMENT, SHE HAD NO URINE OUTPUT AND YOU'LL HEAR PEOPLE
24 COME IN AND THEY'LL TELL YOU, EXPERTS IN HOSPICE CARE AND
25 NURSES, THAT THOSE ARE SIGNS OF THE DEATH AND DYING PROCESS
67
1 WHEN THOSE THINGS OCCUR.
2 AND SO THERE WAS AN ASSESSMENT THAT MS. SMITH WAS DYING
3 AND DR. WEITZEL PUTS, FAMILY DISCUSSION WITH TWO SONS AND
4 DAUGHTER REVEALS THAT THEY DO NOT WANT HER LIFE PROLONGED
5 BUT ARE READY TO LET HER GO. AT TIMES SHE THRASHES ABOUT,
6 SEEMS TO BE IN PAIN AND ANXIETY. ASSESSMENT: QUITE ILL.
7 PLAN: HOLD MEDICATIONS, IN OTHER WORDS, HOLD THE PSYCH
8 MEDICATIONS BECAUSE THERE'S NO PURPOSE FOR HAVING THEM
9 ADMINISTERED AT THIS POINT, AND MORPHINE S.O. 4,
10 5 MILLIGRAMS EVERY THREE HOURS INTRAMUSCULARLY, WHICH IS
11 EXACTLY WHAT HAPPENS AFTER THE CONVERSATION WITH THE FAMILY.
12 AND THEN YOU HAVE THIS ON THE 8TH IN TERMS OF MORPHINE BEING
13 ADMINISTERED AND THEN THE PATIENT DIES.
14 AND INTERESTING THIS IS -- ONCE AGAIN, THIS IS A NURSE
15 WHO CHARTS THIS IN THE WEEKLY ADVOCATE NOTE. PATIENT'S
16 PHYSICAL CONDITION HAS MARKEDLY DETERIORATED. SHE'S UNABLE
17 TO SWALLOW FOOD OR MEDICATION. SHE'S NOT VISIBLY RESPONSIVE
18 TO HER ENVIRONMENT, AND THAT WAS THE CIRCUMSTANCE. ONE OF
19 THE THINGS -- THE CARE PLAN HAS BEEN CHANGED TO REFLECT
20 PATIENT AND FAMILY NEEDS AROUND DEATH AND DYING ISSUES.
21 THE NURSES WILL TELL YOU -- BECAUSE REMEMBER, THEY HAD
22 A VERY SIGNIFICANT ROLE IN THE CARE PROVIDED. AND WHAT
23 NURSES DO IS THEY ASSESS THINGS AND THEY'LL TELL YOU THIS:
24 THEY ARE NOT DOCTORS. THEY DON'T DIAGNOSE, THEY ASSESS.
25 THEY PERCEIVE THINGS. THEY SEE CONDITIONS AND THEN THEY
68
1 DEVELOP CARE PLANS. AND ONE OF THE CARE PLANS THAT NURSES
2 DEVELOP WHEN THEY SEE THAT A PATIENT IS DYING IS BASICALLY A
3 DEATH AND DYING CARE PLAN.
4 AND ONE OF THE THINGS THAT'S INCLUDED IN THAT PLAN IS
5 WHAT ARE CALLED COMFORT MEASURES, IT HAS NOTHING TO DO WITH
6 MEDICATION. AND THOSE COMFORT MEASURES, FOR EXAMPLE, WOULD
7 BE DIMMING THE LIGHTS, SOFTLY TALKING TO THE PATIENT,
8 PROVIDING SOME KIND OF COMFORT IN TERMS OF THEIR EYES, AND
9 YOU'LL SEE THIS IN THE NOTES BUT IT'S PART OF THE DEATH AND
10 DYING PROCESS THAT PEOPLE STARE AND THEIR EYELIDS DO NOT GO
11 UP AND DOWN SO THEIR EYES GET DRY SO THEY GET ARTIFICIAL
12 TEARS SO THERE'S A WHOLE HOST OF OTHER THINGS TO TRY TO GIVE
13 COMFORT AND COMPASSION TO A PERSON WHO IS DYING.
14 AND THIS IS WHAT MS. WILSON IS TALKING ABOUT IN TERMS
15 OF THE CARE PLAN. IT'S ACTUALLY A WRITTEN PLAN, IT'S IN THE
16 MEDICAL RECORDS BASED UPON HER CLINICAL ASSESSMENT THAT THIS
17 PERSON WAS IN FACT DYING. SAME THING AS WITH MR. ALLDREDGE.
18 THESE ARE ALL THE PEOPLE WHO YOU WILL SEE IN THE MEDICAL
19 RECORDS PROVIDED CARE AS PART OF THE MEDICAL TEAM TO
20 MS. SMITH, AND, ONCE AGAIN, THESE ARE THE NURSES, MS. SHEILA
21 HANSEN AND MS. LAURIE WILLSON WHO PROVIDED MORPHINE
22 INJECTIONS TO MS. SMITH.
23 NOW, I'LL TELL YOU ALSO MS. HANSEN IS GOING TO TESTIFY
24 IN THIS CASE. I DON'T KNOW WHETHER SHE'S GOING TO BE CALLED
25 BY THE PROSECUTION OR IS GOING TO BE CALLED BY US, BUT SHE'S
69
1 GOING TO TESTIFY. AND SHE'LL ALSO TELL YOU SHE HAS HAD
2 PROBABLY ABOUT 30 YEARS EXPERIENCE DOING ALL KINDS OF THINGS
3 IN THE NURSING WORLD AND SHE'S GOING TO TELL YOU THAT THE
4 CARE THAT WAS PROVIDED TO THESE PATIENTS WAS APPROPRIATE AND
5 THAT THE MEDICATION PROVIDED, THAT IS MORPHINE, WAS PROVIDED
6 FOR COMFORT MEASURES ONLY AND WAS TOTALLY APPROPRIATE GIVEN
7 THE NATURE OF THE DEATH AND DYING PROCESS WHICH SHE
8 ASSESSED.
9 NOW, THIS IS THE MOST COMPLICATED TIME LINE BECAUSE
10 JUDITH WAS ACTUALLY IN THE HOSPITAL FOR A LONGER TIME THAN
11 ANYONE ELSE. IN FACT, YOU SEE SHE WAS ADMITTED ON 1/26/95 (12/6/95)
12 AND SHE WAS IN THE HOSPITAL UNTIL 1/3 OF '96 SO IT'S A
13 FAIRLY EXTENSIVE MEDICAL CIRCUMSTANCE. AND I TOLD YOU ABOUT
14 MERLIN AND HIS DIFFICULTIES THAT HE WAS EXPERIENCING WITH
15 HIS MOM. ON ADMISSION THIS IS WHAT HE TOLD THE NURSE. HE
16 SAID, WE HAVE HOPES BUT NOT FANTASIES IN REGARD TO PATIENT'S
17 CHANCES FOR IMPROVEMENT. AND THEN ONCE AGAIN -- AND YOU'LL
18 SEE THESE. THEY ARE ACTUALLY WRITTEN DOCUMENTS THESE LIVING
19 WILLS AND THESE DO NOT RESUSCITATE ORDERS. YOU'LL SEE THEM
20 AND WHAT LIMITATIONS THEY IMPOSE.
21 BUT HERE ON THE 11TH, THE NURSE, THIS IS BONNIE HARDEY
22 THIS TIME WHO IS CHARTING THIS, PATIENT'S FAMILY MEMBER
23 CALLED AND REQUESTED INFORMATION ON PATIENT'S STATUS.
24 FAMILY CONTINUES TO NOT WANT I.V.'S, FEEDING TUBES, ET
25 CETERA, AS PER LIVING WILL. OXYGEN OKAY. FAMILY RELIEVED
70
1 TO HEAR THAT PATIENT IS NOT SCREAMING OUT AND/OR AGITATED
2 CURRENTLY. SO THERE'S SOME DEVELOPMENTS THROUGHOUT HERE.
3 AND YOU GET TO THE POINT WHERE WE'RE -- AT THIS POINT
4 ON THE 26TH WHICH IS WHERE I TOLD YOU THAT JUDITH STARTED TO
5 HAVE SOME VERY SERIOUS MEDICAL PROBLEMS. IT SAYS, SEIZURE
6 ACTIVITY NOTED. AND DR. DIENHART IS CALLED IN, HE'S AN
7 INTERNAL MEDICINE DOCTOR. HE'S CALLED IN TO DEAL WITH THIS
8 PROBLEM. AND HE ORDERS 3-MILLIGRAM ATIVAN WHICH IS A
9 SEDATING MEDICATION BE ADMINISTERED. NO IMPROVEMENT. AN
10 ADDITIONAL 1 MILLIGRAM ATIVAN IS ORDERED BY DR. DIENHART AS
11 WELL AS DILANTIN. NOW, DILANTIN IS ALSO A SEDATING
12 MEDICATION BUT IT'S AN ANTISEIZURE MEDICATION. IT'S GIVEN
13 TO DEAL WITH THE SEIZURES. HER BLOOD PRESSURE AT THIS POINT
14 IS 70 OVER 40. PERIODS OF APNEA. APNEA -- AND YOU'LL HEAR
15 ABOUT THIS. THIS IS WHERE YOU STOP BREATHING FOR 15, 20, 25
16 SECONDS AND THEN YOU BREATHE AGAIN. IT'S A PHENOMENON THAT
17 YOU SEE IT'S CALLED APNEA. IT'S ONE OF THOSE FANCY WORDS
18 FOR THAT CONDITION.
19 SO ANYWAY THAT'S HER CONDITION ON THE 26TH. AND THEN
20 NOTICE SHEILA HANSEN SAYS, COMPLAINT OF MOANING, APPEARS TO
21 BE IN SOME DISCOMFORT. PATIENT HAS SEEMED COMFORTABLE SINCE
22 RECEIVING MORPHINE, BECAUSE THERE WERE 2 MILLIGRAMS OF
23 MORPHINE GIVEN ON THIS DAY FOR THE VERY REASONS THAT WHAT
24 MS. HANSEN OBSERVED. AND THEN WE HAVE RIGHT HERE THIS
25 PARTICULAR ENTRY WHERE DR. WEITZEL SPEAKS WITH THE SON AND
71
1 THE DAUGHTER-IN-LAW AND SHE APPEARS MEDICALLY STABLE AT THIS
2 POINT, SO THE DILANTIN WHICH APPEARS TO BE CAUSING SEDATION
3 IS DISCONTINUED BY DR. WEITZEL.
4 AND THEN WE START ON 12/29 THE PROBLEM ABOUT HER
5 THROWING UP FOR 26 HOURS STRAIGHT WHICH IS CHARTED HERE AND
6 HERE. PATIENT -- AND THIS IS WHAT BONNIE HARDEY WRITES,
7 THIS IS AN EXACT QUOTE OUT OF THE NURSES' NOTES, PATIENT'S
8 FAMILY IN TO SEE PATIENT, AWARE OF PHYSICAL STATUS CHANGE.
9 FAMILY STATED THEY WANT DO NOT WANT RESUSCITATE STATUS
10 MAINTAINED AND COMFORT MEASURES GIVEN. THEN DR. WEITZEL HE
11 CHARTS SAME DAY, MET WITH SON AND DAUGHTER THIS P.M.
12 REGARDING PATIENT'S CONDITION. COFFEE GROUNDS VOMIT IS
13 GREATER THAN THIS MORNING WHICH IS, ONCE AGAIN, IT'S
14 EVIDENCE OF BLOOD. SO HE ASSESSES A GASTROINTESTINAL BLEED.
15 PLAN: MAKE SURE SHE IS COMFORTABLE WITH ROUTINE MORPHINE.
16 MERLIN CALLS AND TALKS TO MS. KLEI, MS. KLEI IS ANOTHER
17 NURSE WHO WAS ON SHIFT THAT NIGHT, CALLED SON AND GAVE SON
18 REPORT ON PATIENT'S CONDITION. MERLIN, STRESS THAT ONLY ,
19 THIS IS MERLIN STRESSING TO THE NURSE, ONLY WISH TO KEEP HER
20 COMFORTABLE. SO THAT'S WHERE WE ARE AS OF THIS DATE, THERE
21 ISN'T GOING TO BE ANY OTHER ATTEMPT TO TRY TO DEAL WITH THE
22 GASTROINTESTINAL BLEEDING OR ANY OTHER CIRCUMSTANCE OR THE
23 FACT THAT JUDITH BECAUSE OF THIS BLEEDING, AND THE MEDICAL
24 EVIDENCE WILL SHOW THIS, SHE LOST 25 PERCENT OF HER BLOOD
25 AND THAT WAS DONE PURSUANT TO A TEST THEY DID IN THE
72
1 HOSPITAL WHICH CAUSES INCREDIBLE PROBLEMS IN TERMS OF
2 OXYGENATION AND THINGS LIKE THAT.
3 SON GOES ON TO SAY ON THE 31ST, SON VERY CONCERNED
4 ABOUT PATIENT'S MEDICAL CONDITION. WANTED TO KNOW WHEN
5 PATIENT WOULD BE DYING. FAMILY MEMBER UPSET THAT STAFF
6 NURSE WOULD NOT STATE PATIENT WAS DYING. PATIENT'S
7 CONDITION POOR. AND THIS IS WELL BEFORE ANY SIGNIFICANT
8 AMOUNTS OF MORPHINE ARE EVEN PROVIDED TO THE PATIENT. GOES
9 ON TO SAY ON 12/30, SON CONCERNED THAT FAMILY MEMBERS WERE
10 FLYING IN FROM OUT OF STATE DUE TO NIGHT'S SHIFT REPORT TO
11 SON ON 12/30, AND THAT'S REFERRING TO THIS. THEN IT GOES ON
12 AND THERE'S A PROGRESSION HERE WHICH FINALLY ENDS UP WITH
13 JUDITH'S DEATH ON THE 3RD.
14 SIGNIFICANTLY, THIS IS WHAT LAURIE WILLSON SAID ABOUT
15 HER SITUATION IN THIS WEEKLY NOTE. WEEKLY R.N. ADVOCATE
16 NOTE, PATIENT'S MEDICAL STATUS HAS RAPIDLY AND PROFOUNDLY
17 DETERIORATED THIS WEEK. SHE HAS EXPERIENCED A SEIZURE AND
18 MULTIPLE EPISODES OF VOMITING COFFEE GROUNDS MATERIAL. SHE
19 IS NO LONGER VERBALLY RESPONSIVE, THE CARE PLAN, ONCE AGAIN,
20 THAT NURSING CARE PLAN, HAS BEEN ALTERED TO REFLECT THE NEED
21 TO SUPPORT THE PATIENT AND FAMILY THROUGH A POSITIVE DEATH
22 AND DYING PROCESS. PATIENT IS CURRENTLY RECEIVING MORPHINE
23 INTRAMUSCULAR EACH AND EVERY THREE HOURS FOR COMFORT.
24 SAME THING AS WITH THE OTHERS BUT BECAUSE JUDITH WAS IN
25 THE HOSPITAL FOR A LONGER PERIOD OF TIME THERE ARE A LOT
73
1 MORE FOLKS WHO HELPED HER AND PROVIDED HER CARE AND YOU SEE,
2 ONCE AGAIN, YOU HAVE IN HER CASE ONE, TWO, THREE, FOUR,
3 FIVE, SIX, SEVEN, NURSES WHO ALL GAVE HER MORPHINE
4 INJECTIONS. AND, ONCE AGAIN, THERE WERE NO INJECTIONS GIVEN
5 BY DR. WEITZEL. AND ALL OF THESE PEOPLE, ALL OF THESE
6 PEOPLE, INCLUDING THESE M.D.'S, THESE SOCIAL WORKERS AND
7 EVERYONE ELSE AT ANY POINT COULD JUST OPEN UP THE CHART,
8 TAKE A LOOK AT IT, SEE WHAT WAS GOING ON IN TERMS OF THE
9 PATIENT'S CONDITION AND THE MEDICATIONS.
10 THE FINAL ONE AND THIS IS MS. CRANE. OUR EXPERT -- AND
11 I'LL TELL YOU, WE'LL HAVE A CAUSE OF DEATH EXPERT, A MEDICAL
12 DOCTOR WHO WILL TELL YOU WHAT HE BELIEVES TO A REASONABLE
13 MEDICAL CERTAINTY CAUSED THE DEATH WITH RESPECT TO EACH ONE
14 OF THESE PATIENTS, AND HE'S GOING TO TELL YOU MORPHINE HAD
15 ABSOLUTELY NOTHING TO DO WITH IT.
16 AND HIS OPINION IS, IN ESSENCE, CONSISTENT WITH THE
17 MEDICAL EXAMINER, BECAUSE THE STATE MEDICAL EXAMINER IN
18 DOING AUTOPSIES ON FOUR OF THESE PATIENTS COULD NOT CONCLUDE
19 A CAUSE OF DEATH AND IS NOT GOING TO COME IN HERE AND GIVE
20 HIS OPINION THAT MORPHINE CAUSED THE DEATH OF THOSE FOUR
21 PATIENTS, ONE OF WHICH IS MARY CRANE. AND OUR EXPERT IS
22 GOING TO SAY THE REASON WHY MARY DIED IS BECAUSE MARY HAD A
23 VERY SERIOUS INFECTION AND THAT SERIOUS INFECTION EVENTUALLY
24 CREATED A CONDITION SO THAT SHE DIED FROM THE INFECTION.
25 AND THE SIGNIFICANT THINGS HERE, ONCE AGAIN, TO SHORT
74
1 CIRCUIT THIS -- AND MARY DID HAVE A NUMBER OF PROBLEMS WHICH
2 DR. DIENHART NOTED IN HIS INITIAL CONSULT, BUT SIGNIFICANTLY
3 ON 1/1 -- YEAH, SHE CAME IN WITH URINARY TRACT INFECTION AND
4 I THINK ALL THE DOCTORS WHO WILL TESTIFY IF ASKED THEY'LL
5 AGREE THAT IN AN ELDERLY PATIENT -- AN INFECTION PERHAPS IN
6 A YOUNGER PERSON IS NOT SIGNIFICANT, BUT AN INFECTION IN AN
7 ELDERLY PERSON CAN BE VERY, VERY -- IT CAN BE FATAL AND
8 VERY, VERY DIFFICULT. A URINARY TRACT INFECTION CAN BE A
9 TERMINAL EVENT IF NOT ADEQUATELY DEALT WITH IN AN ELDERLY
10 WOMAN.
11 SHE COMES IN WITH A URINARY TRACT INFECTION AND YOU'LL
12 SEE DR. WEITZEL PUT HER ON AN APPROPRIATE ANTIBIOTIC TO DEAL
13 WITH THAT. BUT HE NOTES AS THE NURSES' NOTE ON 1/1 HE SAYS,
14 SHE HAS A FISTULA FROM RECTUM TO VAGINA PASSING FECES
15 THROUGH THE VAGINA. NOW, I'LL TELL YOU, WE'RE GOING TO HAVE
16 A DOCTOR WHO WILL TELL YOU WHO'S TREATED THIS CONDITION, HE
17 WILL TELL YOU THAT'S EXCEEDINGLY, EXCEEDINGLY PAINFUL.
18 THAT'S THE FIRST THING HE'S GOING TO TELL YOU. THE SECOND
19 THING IS IT'S INFECTIOUS AS ALL GET-OUT. AND YOU'LL SEE
20 THAT DR. WEITZEL GETS A CONSULT IN FROM A GYNECOLOGICAL -- A
21 GYNECOLOGIST, RATHER, AND HE COMES IN ONE, TOO, BECAUSE HE
22 SUPPOSEDLY KNOWS ABOUT THESE THINGS AND THIS IS DR. MEEKS.
23 DR. MEEKS IN HIS CONSULT SAYS, COMPLAINT OF FECAL
24 MATTER OUT OF VAGINA. ON EXAM HAS HIGH RECTAL VAGINAL
25 FISTULA. SO THAT'S WHAT MARY HAS. CAN REPAIR IF CLEARED
75
1 FOR SURGERY BY HER INTERNIST, THAT WILL BE DR. DIENHART.
2 MAY TRY TO HEAL SPONTANEOUSLY PROBABLY WITH 25 TO 35 PERCENT
3 WITH BROAD-SPECTRUM ANTIBIOTICS, BECAUSE IT'S INFECTIOUS.
4 WELL, ON THE 3RD, DR. WEITZEL SAYS, PLEASE HAVE DR. DIENHART
5 MADE AWARE OF GYNECOLOGIST'S RECOMMENDATIONS. IN OTHER
6 WORDS, TELL THE INTERNAL MEDICINE GUY THAT DR. MEEKS HAS HIS
7 CONSULT AND IF WE'RE NOT GOING TO DO SURGERY, WE BETTER DO
8 ANTIBIOTICS. AND THERE'S AN ENTRY BY LYNN LONG SAYS, DR.
9 DIENHART'S SECRETARY NOTIFIED, ON THIS DAY.
10 NOW, THEREAFTER, DR. DIENHART DOESN'T SHOW UP IN THE
11 CARE OF THIS PATIENT UNTIL THE DAY SHE DIES. MEANWHILE
12 YOU'LL SEE IN THE RECORDS, DR. WEITZEL FINALLY BECAUSE OF
13 THIS SITUATION ORDERS AN ANTIBIOTICS, KEFLEX, IT'S ON THE
14 5TH. IT MAY NOT BE ON THIS CHART BUT I'M TELLING YOU THAT'S
15 WHAT HE DOES AND THE RECORD WILL SHOW THAT. SO SHE HAS A
16 VAGINAL FISTULA WHICH ESSENTIALLY IS UNTREATED.
17 AND THEN IF YOU GO TO THE 7TH, LOOK AT WHAT DR.
18 DIENHART IS ASSESSING. POSSIBLE SEIZURE. SHE DID HAVE A
19 SEIZURE. AND IMPRESSION AND HE GOES ON TO SAY, HYPOTENSIVE,
20 WHICH MEANS HER BLOOD PRESSURE WAS VERY, VERY SLOW AND
21 LETHARGIC, AND POSSIBLE SEPSIS. SEPSIS IS THE CONDITION
22 WHERE YOU ARE SO INFECTED THAT ESSENTIALLY YOU HAVE BACTERIA
23 IN YOUR BLOOD AND THAT IS A -- THAT'S A DEADLY CONDITION, NO
24 ABOUT IT AND IF UNTREATED, IT'S A TERMINAL CONDITION.
25 HE GOES ON TO SAY, CASE DISCUSSED WITH DR. WEITZEL,
76
1 PATIENT FELT TO HAVE DECLINING STATUS AND WISHED NOT TO HAVE
2 C.P.R. PERFORMED. ONCE AGAIN, SHE HAS MEDICAL DIRECTIVES IN
3 PLACE SIGNED BY HER DAUGHTER ON THE 28TH OF DECEMBER WHICH
4 ELIMINATE THE ABILITY OF A PHYSICIAN TO DO CERTAIN THINGS,
5 ONE OF WHICH IS THE C.P.R., ONE OF WHICH IS SURGERY, ONE OF
6 WHICH IS USING I.V. FLUIDS. THE PHYSICIAN IS ETHICALLY
7 OBLIGATED AND IS BOUND BY THEM.
8 AND THEN HE GOES ON TO SAY, AFTER DISCUSSION WITH
9 PRIMARY MEDICAL DOCTOR, THIS IS DR. DIENHART AND WILL NOT --
10 AND BASICALLY, IT'S 3:10 A.M., WILL NOT OFFER FURTHER
11 AGGRESSIVE SUPPORTIVE CARE. I SUSPECT SHE MAY DIE SOON.
12 AND THEN THERE'S A CONVERSATION BECAUSE THE HOSPITAL -- THE
13 EVIDENCE WILL BE THE HOSPITAL CALLS THE DAUGHTER, I THINK
14 KAREN BRINGHURST, AND SAYS, YOUR MOM IS IN REAL BAD SHAPE,
15 YOU BETTER COME TO THE HOSPITAL SOON AND SHE DOES. AND THEN
16 SHE HAS A CONVERSATION WITH DR. WEITZEL AND DR. WEITZEL
17 SAYS, I HAVE SPOKEN WITH HER TWO DAUGHTERS AND THEY DO NOT
18 WANT EXTRAORDINARY MEASURES TAKEN BUT WOULD RATHER HAVE
19 COMFORT CARE GIVEN. IN OTHER WORDS, DON'T DO ANYTHING TO
20 TREAT THE INFECTION, LET MS. CRANE DIE NATURALLY.
21 AND THEN, ASSESSMENT: PROBABLY ASPIRATION PNEUMONIA,
22 QUITE DEMENTED, HYPOTENSIVE, POSSIBLE SEPSIS. PLAN: WILL
23 RESPECT FAMILY'S WISHES, PROVIDE COMFORT CARE BUT NOT
24 EXTRAORDINARY CARE. AND MS. BRINGHURST WILL TESTIFY IN THIS
25 CASE. MS. BRINGHURST IS MARY'S DAUGHTER, ONE OF MARY'S
77
1 DAUGHTERS AND SHE'S BEEN A NURSE FOR OVER 20 YEARS AT THE
2 TIME THAT THIS OCCURRED. SHE CAME INTO THE HOSPITAL IN
3 RESPONSE TO A CALL FROM THE HOSPITAL THIS AFTERNOON, AFTER
4 DR. DIENHART HAD ALREADY DETERMINED THAT MARY MAY DIE SOON.
5 AND SHE'S GOING TO TELL THAT YOU HER ASSESSMENT WAS,
6 BASED UPON LOOKING AT HER MOM, SHE THOUGHT HER MOM WAS IN
7 PRETTY BAD SHAPE. AND SHE RECALLS THE CONVERSATION WITH DR.
8 WEITZEL AND SHE ALSO RECALLS THAT DR. WEITZEL SAID, WELL,
9 ONE OF THE WAYS WE CAN KEEP YOUR MOM COMFORTABLE IS TO GIVE
10 HER SOME MEDICATION, MORPHINE, IT'S A WAY TO KEEP HER
11 COMFORTABLE SO THAT SHE'S NOT IN THIS ANGUISH IF WE'RE NOT
12 GOING DO ANYTHING TO TRY TO TREAT THE INFECTION. AND SHE
13 RECALLS THAT CONVERSATION AND AT THE TIME GIVEN WHAT SHE SAW
14 AND WHAT SHE OBSERVED AND WHAT SHE ASSESSED, SHE DIDN'T FIND
15 ANYTHING INAPPROPRIATE ABOUT GIVING MORPHINE AT THAT TIME
16 UNDER THOSE CIRCUMSTANCES.
17 ONCE AGAIN, THESE WERE ALL THE PEOPLE WHO PROVIDED CARE
18 TO MARY CRANE. THESE ARE ALL THE DOCTORS. NOW REMEMBER,
19 EVERY ONE OF THESE DOCTORS AT ANY TIME COULD HAVE LOOKED AT
20 THAT FILE, COULD HAVE LOOKED AT THE CHART AND MADE ANY KIND
21 OF MEDICAL JUDGMENT THEY WANT. THE SAME IS TRUE WITH THE
22 CERTIFIED NURSING ASSISTANTS. THE SAME IS TRUE WITH THE
23 NURSES. ONCE AGAIN, WE HAVE MS. COZZENS WHO GAVE AT LEAST
24 ONE INJECTION OF MORPHINE AND MS. LONG AND MS. SCHOLL.
25 NOW, WE'RE GOING TO HAVE A NURSE EXPERT WHO IS GOING TO
78
1 TELL YOU THAT A NURSE IS SUPPOSED TO MAKE SURE THAT IF THEY
2 ARE GOING TO DO ANYTHING IN TERMS OF MEDICATIONS THAT THEY
3 DO NO HARM TO THE PATIENT AND THAT A NURSE HAS A DUTY IF
4 THERE IS A PROBLEM WITH THE MEDICATION NOT TO GIVE IT. MORE
5 IMPORTANTLY, IF THE NURSE THINKS THERE IS A PROBLEM AND SHE
6 HAS A PROBLEM WITH THE PHYSICIAN, SHE'S SUPPOSED TO GO TO
7 THE PHYSICIAN AND TALK TO THE PHYSICIAN AND IF THE PHYSICIAN
8 AND HER CAN'T RESOLVE THE CONFLICT, SHE'S OBVIOUSLY SUPPOSED
9 TO GO UP THE LINE WITH RESPECT TO THE HOSPITAL
10 ADMINISTRATION. BUT UNDER NO CIRCUMSTANCES IS A NURSE
11 SUPPOSED TO DO HARM TO A PATIENT. AND A NURSE HAS AN
12 INDEPENDENT PROFESSIONAL DUTY TO MAKE SURE THAT WHEN SHE
13 GIVES AN INJECTION, FOR EXAMPLE, MORPHINE, THAT THAT
14 MORPHINE IS NOT GOING TO DO ANY HARM TO THE PATIENT AND
15 THERE WILL BE OTHER THINGS SHE'LL TELL YOU ABOUT AND THESE
16 NURSES WILL TELL YOU ABOUT.
17 NOW, DR. WEITZEL -- AS YOU'VE ALREADY BEEN INSTRUCTED
18 HERE, WE HAVE NO BURDEN HERE. WE HAVE NO DUTY TO CONVINCE
19 YOU OF ANYTHING AND DR. WEITZEL HAS A CONSTITUTIONAL RIGHT
20 NOT TO TESTIFY. HE'S GOING TO TESTIFY AND HE'S GOING TO
21 TAKE THE STAND AND HE'S GOING TO TELL YOU CERTAIN THINGS.
22 AND FIRST OF ALL HE'S GOING TO TELL YOU CERTAINLY THAT HIS
23 SOLE PURPOSE IN PROVIDING ANY MEDICATION TO PROVIDE CARE FOR
24 THESE PATIENTS WAS TO HELP THEM AND TO KEEP THEM COMFORTABLE
25 IN THE DYING PROCESS.
79
1 HE'S ALSO GOING TO TELL YOU THAT HE ESSENTIALLY WAS
2 PROVIDING WHAT IS CALLED HOSPICE CARE IN THE HOSPITAL AND
3 HE'S GOING TO TELL YOU ONE OF THE REASONS WHY HE DID THAT.
4 IT'S BECAUSE WHEN SOMEBODY IS DYING AND THEY ARE ON A
5 PARTICULAR UNIT AND THEY ARE IN A HOSPITAL, TO TRANSFER THEM
6 OUT OF THE HOSPITAL, TO TRANSFER THEM TO ANOTHER PLACE CAN
7 BE VERY DISRUPTIVE, NOT ONLY TO THE FAMILY BUT TO THE
8 PATIENT. SO HE MADE A DECISION THAT IT WAS BETTER TO KEEP
9 THEM IN THE HOSPITAL RATHER THAN TRANSFER THEM OUT FOR
10 HOSPICE CARE WHICH HE COULD HAVE DONE.
11 HE'S ALSO GOING TO TESTIFY AND TELL YOU THAT THE
12 DECISIONS HE MADE, FOR EXAMPLE, THE JUDGMENT THAT HE MADE
13 THAT A PATIENT WAS DYING, WAS A CLINICAL JUDGMENT THAT HE
14 MADE IN CONJUNCTION WITH THE ENTIRE MEDICAL TEAM. HE'S ALSO
15 GOING TO TELL YOU THAT THE DECISIONS HE MADE ABOUT WHAT KIND
16 OF CARE WERE IN CONJUNCTION WITH THE FAMILY AND IN
17 CONJUNCTION WITH THE MEDICAL CHOICES AND THE LIVING WILLS
18 WHICH THE FAMILY HAD IN PLACE WHICH LIMITED HIS ABILITY TO
19 TAKE CERTAIN MEASURES WHICH MIGHT -- MIGHT HAVE REVERSED
20 SOME OF THESE PROCESSES.
21 AND HE'S FINALLY GOING TO TELL YOU, AND I THINK THIS IS
22 REALLY, LADIES AND GENTLEMEN, WHERE THIS CASE HINGES, ONCE A
23 DECISION WAS MADE IN THESE CASES, FOR EXAMPLE, ONCE A
24 DECISION WAS MADE ON MARY CRANE THAT WE'RE NOT GOING TO
25 TREAT THE INFECTION AS WE SHOULD WITH I.V. FLUIDS OR WE'RE
80
1 NOT GOING TO HAVE SURGERY WITH RESPECT TO THE VAGINAL
2 FISTULA, DR. WEITZEL HAS A DUTY INDEPENDENT OF ANYTHING ELSE
3 TO MAKE SURE THAT THAT PERSON IS KEPT COMFORTABLE IF THEY
4 ARE ABOUT TO DIE, AND THAT'S PRECISELY WHAT HE WAS DOING IN
5 TERMS OF HIS MEDICATION PRACTICES AND IN TERMS OF HIS CARE.
6 NOW, AS YOU GO THROUGH THE EVIDENCE AND I'M ABOUT TO
7 WRAP UP BECAUSE I -- BUT I THINK IT'S IMPORTANT YOU KNOW ONE
8 OF THE THINGS THAT'S GOING TO HAPPEN IN THIS CASE IS YOU ARE
9 GOING TO GET AS EVIDENCE, YOU ARE GOING TO GET A BUNCH OF
10 BINDERS. THEY MAY NOT BE RED BUT I'M TELLING YOU RIGHT NOW
11 HERE ARE ALL THE MEDICAL RECORDS AND THEY'LL BE RIGHT THERE
12 AND YOU'LL HAVE THEM. AND THEN YOU ARE GOING TO HAVE PEOPLE
13 WHO ARE GOING TO TAKE THIS WITNESS STAND AND THEY ARE GOING
14 TO SAY, WELL, FIVE YEARS AGO I REALLY DIDN'T SAY THAT OR
15 THAT REALLY DIDN'T HAPPEN AND I SUGGEST THINK ABOUT IT.
16 WHICH IS MORE TRUSTWORTHY, THE ACTUAL MEDICAL RECORDS WHICH
17 WAS MADE AT THE TIME BY PEOPLE WHOSE RESPONSIBILITY IT WAS
18 TO BE ACCURATE, OR SOMEBODY'S RECOLLECTION NOW FIVE YEARS
19 LATER WHEN MAYBE THAT RECOLLECTION IS NOT THAT GOOD OR MAYBE
20 THEY HAVE SOME OTHER MOTIVE OR BIAS TO TESTIFY THE WAY THEY
21 ARE?
22 THE OTHER THING IS I TOLD YOU ABOUT THESE EXPERTS.
23 WELL, THINK ABOUT THIS AS YOU HEAR THE EVIDENCE AND AS YOU
24 HEAR THE EXPERTS: WHO REALLY WAS IN A BETTER POSITION TO
25 DECIDE WHAT WAS GOING ON, SOME GUY WHO COMES UP HERE AND
81
1 TESTIFIES AFTER BASICALLY JUST BEING A RECORD REVIEWER?
2 THAT'S ALL THE EXPERTS ARE GOING TO BE. THEY LOOK AT A
3 BUNCH OF RECORDS AND THEY SAY, WELL, THIS, THIS, THIS, AND
4 THAT HAPPENED. OR THE PEOPLE, THE NURSES, THE NURSES'
5 ASSISTANTS, THE SOCIAL WORKERS, THE DOCTORS WHO ARE ACTUALLY
6 TREATING THE PATIENTS AT THE TIME? THESE ARE CLINICAL
7 JUDGMENTS AND THEY ARE BASED UPON WHAT PEOPLE SEE AND WHAT
8 THEY OBSERVE AT THE TIME. WHO IS IN A BETTER POSITION TO
9 REALLY MAKE THOSE JUDGMENTS, SOMEBODY WHO JUST LOOKS AT A
10 BUNCH OF RECORDS COLD OR THE PEOPLE WHO WERE ACTUALLY
11 PROVIDING THE CARE?
12 LISTEN TO THE NURSES. WE'RE GOING TO CALL THEM. IF
13 THE STATE DOESN'T CALL THEM, WE'LL CALL THEM AND LISTEN TO
14 WHAT THEY ARE GOING TO SAY. BECAUSE, SEE, THEY ARE
15 INDEPENDENT AND THEY ARE MAKING THE SAME ASSESSMENTS AS PART
16 OF THE TEAM THE EVIDENCE WILL SHOW THAT DR. WEITZEL WAS
17 MAKING. SO LISTEN TO THEM, LISTEN TO LAURIE WILLSON, LISTEN
18 TO SHEILA HANSEN, LISTEN TO LYNN LONG AND LISTEN TO WHAT
19 THEY SAY ABOUT WHAT THEY SAW AND WHAT THEY ASSESSED AND WHAT
20 THEY THOUGHT WAS APPROPRIATE MEDICAL CARE AT THE TIME.
21 AND FINALLY, AS YOU HEAR THE EVIDENCE, IT'S TRUE, THE
22 PROSECUTION HAS NO BURDEN AND YOU'LL BE INSTRUCTED ON THIS
23 TO PROVE MOTIVE AS PART OF THIS CRIME. BUT ASK YOURSELF,
24 ASK YOURSELF WHY. WHY ON EARTH WOULD A DOCTOR, A DOCTOR WHO
25 STARTED -- STARTED WITH THIS GROUP IN NOVEMBER OF 1994, WHO
82
1 WAS GIVEN PRIVILEGES BY THE HOSPITAL IN NOVEMBER OF 1995,
2 WHY WOULD HE POSSIBLY AND WHAT MOTIVE COULD HE POSSIBLY HAVE
3 TO GO AND KILL INTENTIONALLY FIVE HUMAN BEINGS? AND THAT'S
4 WHAT WE'RE FOCUSING ON, THIS VERY SHORT PERIOD OF TIME. WHY
5 WOULD HE DO THAT? AND I'LL ANSWER THAT QUESTION AT CLOSING,
6 BUT I WANT YOU TO ASK YOURSELF THAT AS YOU HEAR THE
7 EVIDENCE. WHAT POSSIBLE MOTIVE COULD HE HAVE? AND I AGREE
8 WITH COUNSEL, IT'S ONE THAT IS REALLY HARD TO FIGURE OUT AND
9 I KNOW THE ANSWER WHY IT'S HARD TO FIGURE OUT BUT I'M NOT
10 GOING TO ARGUE THAT HERE, BUT THINK ABOUT IT.
11 AT THE CLOSE OF THIS CASE, LADIES AND GENTLEMEN, I WILL
12 COME BACK. YOU'LL HAVE ME AGAIN AND I'M GOING TO ASK YOU --
13 I'M GOING TO ARGUE ABOUT THE EVIDENCE. I'M GOING TO SAY
14 WHAT I THOUGHT IT SHOWED AND I'M GOING TO ASK YOU TO RETURN
15 A VERDICT OF NOT GUILTY ON EACH ONE OF THESE COUNTS BECAUSE
16 I THINK AT THE END OF THE CASE THE EVIDENCE WILL SHOW AT
17 LEAST THREE THINGS. IT'S GOING TO SHOW, FIRST OF ALL, THIS
18 CASE IS ABOUT MEDICAL JUDGMENT. IT'S NOT ABOUT CRIMINAL
19 INTENT. SECOND OF ALL, IT'S ABOUT END-OF-LIFE CARE, NOT DR.
20 WEITZEL TRYING TO END SOMEBODY'S LIFE. AND, FINALLY, LADIES
21 AND GENTLEMEN, IT'S NOT ABOUT MURDER. IT'S ABOUT MERCY.
22 THANK YOU.
23 THE COURT: THANK YOU. LADIES AND GENTLEMEN, WE
24 COULD EITHER TAKE A BREAK FOR 15 MINUTES, COME BACK FOR A
25 HALF HOUR OR WE CAN TAKE OUR LUNCH BREAK NOW AND I THINK
83
1 WHAT WE'RE GOING TO DO INSTEAD OF BREAKING FROM 12 TO 1:30
2 WHAT I WOULD LIKE TO DO IS BREAK FROM 11:30 UNTIL ONE. I
3 MEAN IT'S NOT QUITE 11:30 YET BUT THEN WE CAN START WITH OUR
4 WITNESSES AFTER WE COME BACK FROM LUNCH. SO WHAT WE'RE
5 GOING TO DO IS WE'LL BE IN RECESS FROM 11:30 TO ONE AND AS I
6 PROMISED YOU I'M GOING TO GIVE YOU THIS INSTRUCTION AT EVERY
7 BREAK. WOULD IT BE POSSIBLE TO TAKE THAT SIGN DOWN?
8 MR. STIRBA: I'M SORRY, YOUR HONOR. IT CERTAINLY
9 WOULD. I'M SORRY, I APOLOGIZE.
10 THE COURT: GREAT, THANK YOU.
11 MR. STIRBA: SURE.
12 THE COURT: IT IS YOUR DUTY NOT TO CONVERSE AMONG
13 YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE
14 ADDRESSED BY ANY OTHER PERSON ON ANY SUBJECT OF THE TRIAL
15 AND THAT IT IS YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
16 THEREON UNTIL THE CASE IS FINALLY SUBMITTED TO YOU.
17 NOW THE OTHER THING YOU ARE GOING TO DO IS YOU ARE
18 PROBABLY GOING TO GET INTO THE CAR AND THE FIRST THING YOU
19 MIGHT DO IS YOU MIGHT TURN ON YOUR RADIO. AND REMEMBER WHAT
20 I TOLD YOU A HUNDRED TIMES BEFORE AND I'M GOING TO TELL YOU
21 AGAIN, TURN IT ON A MUSIC STATION THAT DOESN'T DO ANY NEWS
22 OR IF YOU HEAR ANYTHING THAT'S COMING ON ABOUT THIS TRIAL,
23 YOU HAVE TO CHANGE THE STATION. YOU CANNOT LISTEN TO RADIO,
24 TELEVISION, NEWS REPORTS, NEWSPAPER MAGAZINE, INTERNET,
25 ANYTHING ELSE. AGAIN, JUST LISTEN TO WHAT YOU'LL HEAR IN
84
1 THE COURTROOM SO WE'LL BE IN RECESS UNTIL 1 O'CLOCK AND IF
2 YOU COULD BE HERE PROMPTLY BACK AT THAT TIME. PLEASE STAND
3 FOR THE JURY.
4 (WHEREUPON THE JURY WAS EXCUSED.)
5 THE COURT: THE RECORD SHOULD REFLECT THAT THE JURY
6 HAS LEFT. IS THERE ANYTHING THAT WE NEED TO ADDRESS BEFORE
7 WE COME BACK AT ONE?
8 MR. WILSON: STATE HAS NOTHING AT THIS TIME, YOUR
9 HONOR.
10 MR. STIRBA: I HAVE NOTHING, JUDGE.
11 THE COURT: OKAY. THEN WE'LL SEE YOU AT 1 O'CLOCK.
12 (WHEREUPON, THE MORNING SESSION ENDS.)
13
14
15
16
17
18
19
20
21
22
23
24
25
85
1 (WHEREUPON, THE AFTERNOON SESSION BEGINS.)
2 THE COURT: I'D LIKE TO THANK THE JURY AND COUNSEL
3 ALL FOR BEING ON TIME. I REALLY APPRECIATE THAT AND IT WILL
4 MAKE THINGS GO A LOT SMOOTHER.
5 THE RECORD SHOULD REFLECT THAT ALL COUNSEL AND THE
6 DEFENDANT ARE PRESENT, AS WELL AS THE JURY.
7 MR. WILSON, WOULD YOU LIKE TO CALL YOUR FIRST WITNESS?
8 MR. WILSON: WE WOULD, YOUR HONOR. WE'LL CALL
9 SHEILA HEWARD TO THE STAND AT THIS TIME.
10 MR. STIRBA: YOUR HONOR, AND BEFORE WE DO THAT, I'D
11 INVOKE THE EXCLUSIONARY RULE WITH RESPECT TO WITNESSES.
12 THE COURT: OKAY. THE EXCLUSIONARY RULE MEANS THAT
13 ANYONE WHO PLANS TO BE A WITNESS OR HAS BEEN TOLD THAT THEY
14 WILL BE A WITNESS IN THIS CASE, THEY HAVE TO NOT BE IN THE
15 COURTROOM WHILE OTHER WITNESSES TESTIFY. THAT ONLY MEANS
16 THAT -- EXCEPT FOR THE REPRESENTATIVE FOR THE STATE AND THE
17 DEFENDANT.
18 MR. WILSON: THERE WAS -- THERE WAS SOME FAMILY
19 MEMBERS, YOUR HONOR, THAT WERE DESIGNATED AS REPRESENTATIVES
20 OF FAMILIES.
21 THE COURT: YEAH, THOSE -- THOSE TWO PEOPLE.
22 MR. WILSON: THOSE TWO PEOPLE?
23 THE COURT: YES.
24 MR. WILSON: AND I DON'T THINK WE HAVE ANYBODY
25 PRESENT AT THIS TIME THAT WE'RE PLANNING ON.
86
1 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
2 MR. WILSON: THANK YOU, YOUR HONOR.
3 THE COURT: OKAY. WOULD YOU LIKE TO CALL YOUR
4 FIRST WITNESS?
5 MR. WILSON: CALL SHEILA HEWARD.
6 THE COURT: OKAY. IF YOU'LL COME FORWARD AND BE
7 SWORN.
8 SHEILA K. HEWARD,
9 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
10 AS FOLLOWS:
11 DIRECT EXAMINATION
12 BY MR. WILSON:
13 Q. MS. HEWARD, WOULD YOU STATE YOUR FULL NAME FOR THE
14 RECORD, PLEASE?
15 A. SHEILA K. HEWARD.
16 Q. AND WHERE ARE YOU CURRENTLY EMPLOYED?
17 A. DAVIS HOSPITAL AND MEDICAL CENTER.
18 Q. IN WHAT CAPACITY?
19 A. I'M THE DIRECTOR OF QUALITY AND RISK MANAGEMENT.
20 Q. HOW LONG HAVE YOU BEEN EMPLOYED AT THE DAVIS HOSPITAL IN
21 THAT CAPACITY?
22 A. JUST OVER 2 YEARS.
23 Q. OKAY. COULD YOU GIVE US A BRIEF STATEMENT RELATIVE TO
24 YOUR CREDENTIALS -- WELL, FIRST OF ALL, LET ME ASK IT THIS
25 WAY. HOW LONG HAVE YOU BEEN EMPLOYED IN HOSPITAL TYPE
87
1 SERVICES?
2 A. SINCE 1975.
3 Q. OKAY. DO YOU HAVE -- CAN YOU GIVE US A BRIEF BACKGROUND
4 AS TO ANY EDUCATIONAL CREDENTIALS THAT YOU HAVE IN -- IN
5 RESPECT TO THAT FIELD?
6 A. I HAVE A BACHELOR'S OF SCIENCE DEGREE IN CLINICAL
7 LABORATORY PATHOLOGY; I'VE GOT A MASTER'S DEGREE IN HEALTH
8 CARE ADMINISTRATION; AND I'M A CERTIFIED HEALTH CARE
9 EXECUTIVE, BOARD CERTIFIED IN HOSPITAL MANAGEMENT.
10 Q. OKAY. DO YOU HOLD ANY OTHER CERTIFICATIONS?
11 A. I'M A SPECIALIST IN HOSPITAL QUALITY, CERTIFIED
12 PROFESSIONAL IN HEALTH CARE QUALITY.
13 Q. OKAY. IN TERMS OF YOUR EXPERIENCE IN THE HOSPITAL
14 FIELD, COULD YOU GIVE US A BRIEF OUTLINE OF WHAT YOUR
15 EXPERIENCES ENTAIL?
16 A. I WORKED FOR ABOUT 12 YEARS IN THE LABORATORY IN VARIOUS
17 CAPACITIES. I'VE BEEN THE MANAGER OF A COUPLE OF DIFFERENT
18 DEPARTMENTS IN ENVIRONMENTAL SERVICES AND SUPPORT SERVICES,
19 AND I'VE BEEN IN THIS KIND OF ROLE AS THE DIRECTOR OF
20 QUALITY AND RISK MANAGEMENT SINCE 1992.
21 Q. OKAY. PRIOR TO COMING TO DAVIS HOSPITAL, WHAT HOSPITAL
22 DID YOU OCCUPY THAT POSITION AT?
23 A. I WORKED AT TWO DIFFERENT HOSPITALS FOR INTERMOUNTAIN
24 HEALTH CARE, ONE IN POCATELLO FOR 21 YEARS AND ONE IN SALT
25 LAKE CITY, EXCUSE ME, FOR TWO YEARS.
88
1 Q. OKAY. THANK YOU. PRESENTLY AS THE DIRECTOR OF QUALITY
2 AND RISK MANAGEMENT, WHAT ARE YOUR DUTIES AND
3 RESPONSIBILITIES? WHAT DO THEY ENTAIL?
4 A. THERE ARE SEVERAL DIFFERENT ROLES THAT THIS POSITION
5 FILLS. ONE OF THEM IS HOSPITAL AND MEDICAL STAFF QUALITY
6 MONITORING. I'M THE HOSPITAL RISK MANAGER. I OVERSEE
7 WORKER'S COMPENSATION, UTILIZATION REVIEW, INFECTION
8 CONTROL, SOCIAL SERVICES, AND DISCHARGE PLANNING.
9 Q. OKAY. SO I WOULD TAKE IT FROM THAT POSITION YOU'RE --
10 YOU'RE FAMILIAR WITH ALL ASPECTS AND ALL OPERATIONAL PARTS
11 OF THE HOSPITAL?
12 A. FOR THE MOST PART, YES.
13 Q. OKAY. ARE THERE ANY PARTS OF THE HOSPITAL OPERATION
14 THAT YOU'RE NOT FAMILIAR WITH?
15 A. NOT THAT I CAN THINK OF.
16 Q. OKAY. PERHAPS BEFORE WE GO ANY FURTHER YOU COULD
17 FAMILIARIZE THE JURY WITH THE PHYSICAL FACILITY ITSELF. CAN
18 YOU DESCRIBE FOR US WHAT THE PHYSICAL FACILITY OF DAVIS
19 HOSPITAL IS LIKE, HOW MANY FLOORS IT HAS?
20 A. THERE'S FOUR FLOORS, THREE OF WHICH CONTAIN PATIENT CARE
21 AREAS. THE SECOND FLOOR IS O.B. AND POSTPARTUM; THE THIRD
22 FLOOR HAS MULTIPLE UNITS ON IT: THE C.C.U., TELEMETRY,
23 PEDIATRICS, SKILLED NURSING FACILITY, AND GEROPSYCH. AND
24 THE FOURTH FLOOR IS MED/SURG.
25 Q. OKAY. SO THE ONES YOU DELINEATED AS THE SPECIALTY
89
1 UNITS, THOSE WERE LOCATED ON THE THIRD FLOOR?
2 A. CORRECT.
3 Q. OKAY. AND ARE ANY OF THESE UNITS -- WELL, FIRST OF ALL,
4 LET'S -- LET'S DESCRIBE FOR THE JURY, IF YOU WOULD, IN
5 PARTICULAR ON THE THIRD FLOOR YOU'VE INDICATED A NUMBER OF
6 UNITS THAT OPERATE ON THAT FLOOR.
7 A. CORRECT.
8 Q. COULD YOU DESCRIBE FOR THEM WHAT TYPE OF UNITS AGAIN
9 THAT ARE ON THAT THIRD FLOOR?
10 A. THE C.C.U./I.C.U. IS A CRITICAL CARE AND INTENSIVE CARE
11 UNIT.
12 THE SKILLED NURSING FACILITY IS A UNIT THAT OFTEN TAKES
13 PATIENTS THAT HAVE HAD SURGERY AND THEY GO THERE FOR SOME
14 SHORT-TERM REHAB TO BE ABLE TO RETURN TO THEIR PREVIOUS
15 LEVEL OF FUNCTIONING AFTER THEY'VE LEFT THE HOSPITAL.
16 TELEMETRY IS KIND OF A STEP TO THE CRITICAL CARE UNIT.
17 IT'S A FLOOR THAT HAS SOME MONITORING EQUIPMENT PUT IN IT SO
18 THAT YOU CAN PUT PATIENTS ON A CARDIAC MONITOR AND WATCH
19 THEIR CARDIAC ACTIVITY. OFTENTIMES IF SOMEONE'S IN THE
20 CRITICAL CARE UNIT SAY SUFFERING FROM A HEART ATTACK, THEY
21 WILL GO FROM THE C.C.U. TO THE TELEMETRY UNIT BEFORE THEY'RE
22 DISCHARGED.
23 OF COURSE, THERE'S PEDIATRICS, AND THEN THERE'S THE
24 GEROPSYCHIATRIC UNIT WHICH IS A TEN-BED UNIT FOR GENERALLY
25 OVER-65 PATIENTS THAT ARE SUFFERING FROM PSYCHOSES,
90
1 DEMENTIA, DEPRESSION, THINGS OF THAT NATURE.
2 Q. IN TERMS OF THE GEROPSYCH UNIT, CAN YOU TELL US WHAT
3 TYPES OF -- OF EQUIPMENT AND SERVICES ARE PROVIDED IN THE
4 GEROPSYCH UNIT?
5 A. THE GERO --
6 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
7 RELEVANCY.
8 MR. WILSON: I THINK, YOUR HONOR --
9 MR. STIRBA: MAY I VOIR DIRE?
10 MR. WILSON: -- IT'S TOTALLY FOUNDATIONAL.
11 THE COURT: OKAY. GO AHEAD AND VOIR DIRE.
12 MR. STIRBA: YEAH.
13 VOIR DIRE EXAMINATION
14 BY MR. STIRBA:
15 Q. MS. HEWARD, MY UNDERSTANDING YOU BECAME EMPLOYED AT
16 DAVIS HOSPITAL WITHIN THE LAST TWO YEARS; IS THAT RIGHT?
17 A. LITTLE OVER TWO YEARS AGO.
18 Q. AND SO YOU STARTED WHEN?
19 A. IN MAY OF '98.
20 Q. OKAY. PRIOR TO THAT TIME, FOR EXAMPLE THE TIME PERIOD
21 OF '95 THROUGH '96, YOU WEREN'T EMPLOYED AT THE HOSPITAL,
22 TRUE?
23 A. CORRECT.
24 MR. STIRBA: THAT'S ALL, YOUR HONOR.
25 MR. WILSON: AGAIN, YOUR HONOR, WE -- WE'D JUST
91
1 INDICATE IT'S FOUNDATIONAL. I CAN ASK SOME FURTHER
2 QUESTIONS FOR PURPOSES OF PREPARATION -- OR FOR FOUNDATION
3 ON THAT.
4 THE COURT: OKAY. YOU CAN DO THAT.
5 DIRECT EXAMINATION, CONT'D
6 BY MR. WILSON:
7 Q. HAVE YOU HAD AN OPPORTUNITY TO REVIEW THE RECORDS IN
8 CONNECTION WITH THIS MATTER THAT WERE MAINTAINED AT THE
9 GEROPSYCH UNIT?
10 A. YES, I HAVE.
11 Q. AND HAVE YOU DONE AN EXTENSIVE REVIEW OF THOSE RECORDS?
12 A. YES, I HAVE.
13 Q. WHAT RECORDS HAVE YOU REVIEWED IN CONNECTION WITH THE
14 OPERATION OF THE UNIT?
15 A. WITH THE OPERATION OF THE UNIT?
16 Q. WELL, THE OPERATION OF THE UNIT ITSELF AND ALSO WITH --
17 WITH -- HAVE YOU HAD OCCASION TO ALSO VIEW THE UNIT ITSELF?
18 A. ABSOLUTELY. YES.
19 Q. ARE YOU AWARE THAT ANY CHANGES HAVE BEEN MADE IN THE
20 PHYSICAL LAYOUT OF THE UNIT SINCE YOUR -- IN RESPECT TO YOUR
21 INVESTIGATION OF THE UNIT?
22 A. THERE'S BEEN NO CHANGES SINCE IT WAS OPENED.
23 Q. OKAY. IN RESPECT TO THE OPERATION OF THE UNIT, HAVE YOU
24 ALSO HAD AN OPPORTUNITY TO REVIEW RECORDS RELATED TO THE
25 CRITERIA FOR THE OPERATION OF THE UNIT?
92
1 A. I'VE -- I KNOW WHAT THE CRITERIA ARE. I VIEWED THE
2 CRITERIA THAT'S CURRENTLY IN PLACE.
3 Q. OKAY. HAVE YOU EVER VIEWED THE CRITERIA THAT WERE IN
4 PLACE BACK IN 1995?
5 A. NO, I HAVE NOT.
6 Q. OKAY. IN RESPECT TO THE UNIT ITSELF, DESCRIBE THE
7 PHYSICAL LAYOUT THEN.
8 A. THE UNIT IS A TEN-BED UNIT WITH FIVE PATIENT ROOMS WITH
9 TWO PATIENTS PER ROOM. THERE'S A NURSES' STATION AND KIND
10 OF A DAY ROOM WHERE THEY DO A LOT OF THE GROUP COUNSELLING,
11 GROUP MEETINGS OF THAT NATURE. OF COURSE, THERE'S A SUPPLY
12 ROOM AND A NURSES' STATION AS WELL.
13 Q. OKAY. IN RESPECT TO THE UNIT, ARE THERE ANY DOORS THAT
14 ARE LOCKED?
15 A. THERE ARE TWO SETS OF DOORS, ONE AT EACH END -- A PAIR
16 AT EACH END OF THE UNIT THAT ARE LOCKED SO THAT PATIENTS MAY
17 NOT LEAVE THE UNIT WITHOUT THE KNOWLEDGE OF THE STAFF.
18 Q. OKAY. NOW, IN TERMS OF THE PHYSICAL LAYOUT OF THE UNIT,
19 CAN YOU TELL US WHAT UNIT IS LOCATED IN CONJUNCTION OR NEXT
20 TO THAT UNIT?
21 A. IMMEDIATELY NEXT TO IT IS THE SKILLED NURSING FACILITY.
22 Q. OKAY. AND ARE YOU FAMILIAR WITH WHAT GOES ON IN THE
23 SKILLED NURSING CENTER?
24 A. AGAIN, THAT UNIT IS DESIGNED FOR PATIENTS THAT HAVE
25 ALREADY BEEN A PATIENT IN THE HOSPITAL AND DON'T NEED AN
93
1 ACUTE LEVEL OF CARE, BUT NEED SOME SHORT-TERM CARE,
2 PRIMARILY THINGS LIKE PHYSICAL THERAPY. FOR INSTANCE, IF A
3 PATIENT HAS A TOTAL HIP REPLACEMENT, AFTER THEY'RE
4 DISCHARGED FROM THE MEDICAL-SURGICAL UNIT THEY OFTEN GO TO
5 THE SNF TO GET PHYSICAL THERAPY, OCCUPATIONAL THERAPY,
6 THINGS OF THAT NATURE TO HELP THEM GET STRONGER BEFORE
7 THEY'RE DISCHARGED.
8 Q. AND WHERE IS THE CRITICAL CARE UNIT LOCATED IN PROXIMITY
9 TO IT?
10 A. IT'S AT THE OTHER END OF THE UNIT.
11 Q. OKAY. IN RESPECT TO BEING AT THE OTHER END OF THE UNIT,
12 ARE WE TALKING SOME DISTANCE THERE?
13 A. IT'S ABOUT AS FAR FROM THE GEROPSYCH UNIT AS YOU CAN
14 GET.
15 Q. OKAY. AND --
16 A. ON THAT FLOOR.
17 Q. OKAY. CAN YOU TELL US IN FEET WHAT YOU WOULD
18 APPROXIMATE?
19 A. PROBABLY 250.
20 Q. OKAY.
21 A. 300 MAYBE.
22 Q. AND IS THERE HALLWAYS LINKING THESE VARIOUS UNITS?
23 A. UH-HUH. YES, THERE ARE.
24 Q. OKAY. NOW, LET'S TALK A LITTLE BIT ABOUT THE PATIENT
25 RECORDS THAT ARE MAINTAINED AT THE HOSPITAL. ARE YOU
94
1 FAMILIAR WITH HOW THE PATIENT RECORDS ARE MAINTAINED?
2 A. YES, I AM.
3 Q. AND IN RESPECT TO THE PATIENT RECORDS THEMSELVES, DO YOU
4 HAVE ANY AUTHORITY OR CUSTODY OVER THOSE RECORDS?
5 A. I'M NOT THE PRIMARY CUSTODIAN, NO.
6 Q. OKAY. IN -- IN RESPECT TO THE RECORDS, DO YOU HAVE
7 ACCESS TO THEM?
8 A. YES, I DO.
9 Q. HAVE YOU, AS A RESULT OF THIS INVESTIGATION, HAD THE
10 OPPORTUNITY TO REVIEW THOSE RECORDS ON A NUMBER OF
11 OCCASIONS?
12 A. YES, I HAVE.
13 Q. OKAY. FIRST OF ALL, I WANT YOU TO DELINEATE, IF YOU
14 WILL, THE TYPES OF -- WELL, LET'S -- LET'S JUST TALK ABOUT
15 ONE TYPE OF RECORD FIRST. THEY MAINTAIN PATIENT RECORDS.
16 A. CORRECT.
17 Q. IS THAT CORRECT?
18 A. YES.
19 Q. CAN YOU TELL US WHAT TYPES OF INFORMATION ARE MAINTAINED
20 IN THOSE PATIENT RECORDS?
21 A. THE FIRST THING THAT'S IN A PATIENT'S MEDICAL RECORD IS
22 A DOCUMENT THAT CONTAINS DEMOGRAPHIC INFORMATION: THE
23 PATIENT'S NAME, ADDRESS, PHONE NUMBER, SOCIAL SECURITY
24 NUMBER, DATE OF BIRTH, DOCTOR THAT'S ADMITTING THEM FOR THAT
25 PARTICULAR VISIT, INSURANCE INFORMATION.
95
1 Q. OKAY.
2 A. IN ADDITION TO THAT, THERE WILL BE -- AND I'M GOING TO
3 DESCRIBE A CHART THAT IS COMPLETE. THE PATIENT'S LEFT THE
4 HOSPITAL AND THE RECORD IS COMPLETE.
5 Q. OKAY.
6 A. THERE WILL BE A DISCHARGE SUMMARY, THERE'LL BE A HISTORY
7 AND PHYSICAL. IN THE CHARTS WITH RESPECT TO THIS PARTICULAR
8 CASE THERE WOULD BE A PSYCHIATRIC EVALUATION. THERE'S
9 GENERALLY SEVERAL PAGES OF PHYSICIAN PROGRESS NOTES AND
10 PHYSICIAN ORDERS. THERE'S LABORATORY AND X-RAY RESULTS. IF
11 ANY THERAPY, SOCIAL SERVICES, THINGS OF THAT NATURE, THEY
12 WOULD HAVE NOTES IN THE RECORD. THERE'S NURSING RECORDS,
13 THERE'S MEDICAL -- MEDICATION ADMINISTRATION RECORDS.
14 Q. OKAY.
15 A. THAT'S PRETTY MUCH IT.
16 Q. IN RESPECT TO THOSE RECORDS, CAN YOU TELL US HOW ARE
17 THOSE RECORDS MAINTAINED OR HOW ARE THEY FORMED?
18 A. HOW ARE THEY FORMED?
19 Q. YEAH.
20 A. WHEN THE PATIENT --
21 Q. ASSUMING -- ASSUMING A PATIENT IS ADMITTED TO THE
22 GEROPSYCH UNIT, HOW WOULD THAT RECORD BE COMPLETED?
23 A. OKAY. THE -- A COPY OF THAT DEMOGRAPHIC INFORMATION
24 THAT I DESCRIBED TO YOU WOULD BE -- WOULD GO TO THE UNIT
25 WITH THE PATIENT. AND ON THE UNIT THEY WOULD COMPILE A
96
1 CHART THAT HAS A NUMBER OF DIVIDERS AND THEY'D BE PUTTING
2 BLANK PAGES IN THERE, LIKE SEVERAL BLANK PAGES FOR THE
3 PHYSICIAN'S PROGRESS NOTES AND ORDERS, SEVERAL PAGES FOR
4 NURSING NOTES. AND AS THE PATIENT -- AS THE PATIENT'S STAY
5 LENGTHENS, MORE AND MORE OF THOSE GET PUT INTO THE CHART AS
6 NEEDED. AS LABORATORY RESULTS COME UP, THEY'RE ADDED TO THE
7 CHART; X-RAY -- THE INTERPRETATION OF X-RAYS, THAT WILL COME
8 UP; E.K.G.'S, IF THEY'RE DONE, RECORDS OF THAT GO INTO THE
9 RECORD. SO OVER THE COURSE OF THE PATIENT'S STAY IT GETS
10 BIGGER AND BIGGER.
11 Q. AND SO ALL OF THOSE COMPONENTS OF THE PATIENT'S MEDICAL
12 RECORD ARE MAINTAINED RIGHT ON THE UNIT ITSELF?
13 A. THAT'S RIGHT.
14 Q. AND ALL OF THE ENTRIES THEN WOULD BE ENTERED IN -- IN
15 THAT PARTICULAR UNIT ITSELF?
16 A. THAT'S RIGHT.
17 Q. OKAY. IN RESPECT TO THE VARIOUS TYPES OF RECORDS, CAN
18 YOU TALK A LITTLE BIT ABOUT WHAT IS CONTAINED IN THE NURSES'
19 NOTES? WHAT IS THAT SUPPOSED TO BE ABOUT?
20 A. THE NURSES' NOTES IS SEVERAL DIFFERENT THINGS. THEY'RE
21 USUALLY A MULTISURFACE, MULTIPAGE DOCUMENT THAT INCLUDES
22 RESULTS OF THE PATIENT ASSESSMENT AT THE VARIOUS TIMES
23 DURING THE DAY. IT WILL CONTAIN BLOOD PRESSURE, PULSE,
24 RESPIRATIONS, TEMPERATURE, A GRAPHIC CHART FOR THAT KIND OF
25 DATA, AND THEN THERE'S A PLACE FOR THEM TO WRITE NARRATIVE
97
1 ABOUT WHAT'S GOING ON WITH THE PATIENT.
2 Q. OKAY. IF A -- IN THE -- IN THE -- SO IS THAT PART OF
3 THE PROGRESS NOTES?
4 A. NO. THOSE ARE THE NURSING NOTES OR THE PATIENT CARE
5 NOTES.
6 Q. OKAY.
7 A. THEY'RE -- EITHER WAY.
8 Q. WHAT IS THE PROGRESS NOTE?
9 A. THE PROGRESS NOTE IS A FORM THAT IS -- ON WHAT -- IT'S
10 GOT TWO COLUMNS. ON ONE SIDE IS WHERE THE PHYSICIAN
11 DOCUMENTS PROGRESS NOTES AFTER THE PHYSICIAN HAS SEEN THE
12 PATIENT DURING THE COURSE OF A STAY WHILE THEY'RE IN THE
13 HOSPITAL; AND ON THE OTHER SIDE OF THAT IS A PLACE FOR THE
14 PHYSICIAN TO WRITE ORDERS.
15 Q. OKAY. SO IF A PHYSICIAN WRITES AN ORDER FOR A CERTAIN
16 TYPE OF MEDICATION, THAT WOULD BE CONTAINED IN THAT
17 PARTICULAR DOCUMENT?
18 A. YES, IT WOULD.
19 Q. WOULD IT BE CONTAINED IN ANY OTHER DOCUMENTS IN THE
20 PATIENT RECORD?
21 A. THE ORDER?
22 Q. YES.
23 A. NO.
24 Q. WHAT ABOUT VERIFICATION THAT THE ORDER WAS INDEED
25 ADMINISTERED?
98
1 A. WHEN A PHYSICIAN WRITES AN ORDER AN R.N. ON THE UNIT
2 WILL NOTE IT. THEY USUALLY DRAW A LINE ACROSS THE BOTTOM OF
3 IT AND WRITE THEIR SIGNATURE AS NOTED. AND THEN IN THE CASE
4 OF A MEDICATION THEN THEY WOULD NOTIFY PHARMACY AND EITHER
5 THEY OR PHARMACY WOULD ADD IT TO THAT MEDICATION
6 ADMINISTRATION RECORD.
7 Q. OKAY. IN RESPECT TO THE DOCTOR'S NOTES, DOES HE HAVE A
8 SEPARATE SECTION OTHER THAN THE PROGRESS NOTES AND THE
9 ORDERS?
10 A. IN SOME CASES. WITH THESE PATIENTS THERE WAS A DOCUMENT
11 CALLED THE INTERDISCIPLINARY RECORD, I BELIEVE, WHERE
12 MULTIPLE DISCIPLINE IS DOCUMENTED ON IT, MADE HANDWRITTEN
13 NARRATIVE NOTES.
14 Q. OKAY. LET ME ASK YOU, IN CONNECTION WITH THOSE PATIENT
15 RECORDS, IS -- IS THERE ANY BILLING INFORMATION THAT'S
16 CONTAINED IN THOSE RECORDS?
17 A. THE ONLY THING THAT HAS TO DO WITH BILLING IS THAT
18 DEMOGRAPHIC PAGE I MENTIONED. IT'S GOT THE -- THE ADDRESS,
19 TELEPHONE NUMBER, SOCIAL SECURITY NUMBER, THE PATIENT. IT
20 HAS THEIR INSURANCE COMPANY, NEXT OF KIN. THEY MIGHT HAVE
21 AN INSURANCE COMPANY NUMBER ON THEM, BUT BEYOND THAT, NO.
22 Q. OKAY. ARE THERE OTHER RECORDS THAT ARE MAINTAINED ON
23 THE UNIT BESIDES THE PATIENT RECORDS?
24 A. THERE'S A SET OF RECORDS CALLED THE CONTROLLED
25 SUBSTANCES LOG.
99
1 Q. OKAY.
2 A. THAT IS A LOG WHERE CONTROLLED SUBSTANCES SUCH AS
3 NARCOTICS ARE LOGGED AS SOON -- THE PHARMACY STOCKS THE UNIT
4 WITH A CERTAIN COMPLEMENT OF MEDICATION. SOME OF THOSE ARE
5 CONTROLLED SUBSTANCES. BECAUSE OF THE NATURE OF CONTROLLED
6 SUBSTANCES, WE HAVE TO ACCOUNT FOR EVERY BIT OF THE
7 MEDICATION.
8 SO IF YOU HAD A CONTROLLED SUBSTANCE THAT WAS
9 PRESCRIBED FOR A PATIENT AND SAY MOST OF A SMALL VIAL WAS
10 USED FOR A DOSE ON A PATIENT AND WHAT REMAINED IN THAT VIAL
11 WAS NOT ENOUGH TO PROVIDE ANOTHER DOSE, THEN THAT WOULD BE
12 WASTED. AND THE CONTROLLED SUBSTANCE LOG IS IF THEY TAKE
13 SOME OUT FOR A PATIENT, THEY HAVE TO WRITE DOWN THE
14 PATIENT'S NAME, THE MEDICATION, THE AMOUNT THAT WAS ORDERED
15 AND WHETHER IT WAS ADMINISTERED, AND THEN IF THERE'S ANY
16 LEFT, IT HAS TO BE WHAT WE CALL WASTED WHICH MEANS IT HAS TO
17 BE DISPOSED OF DOWN A SINK AND WITNESSED BY TWO R.N.'S.
18 Q. OKAY. NOW, IF YOU WERE -- IF YOU WERE TRYING TO --
19 WELL, LET -- LET ME REPHRASE THAT. IF YOU WERE LOOKING AT A
20 PATIENT RECORD AND YOU'RE LOOKING AT THE CONTROLLED
21 SUBSTANCES LOG, IS THERE ANYTHING IN THE PATIENT RECORD
22 WHICH WOULD CORROBORATE ANY NOTES THAT ARE SUPPOSED TO BE IN
23 THE PATIENT RECORD WHICH WOULD CORROBORATE ALSO THE NOTES
24 THAT ARE CONTAINED IN THE CONTROLLED SUBSTANCES LOG?
25 A. YES. THERE WOULD FIRST -- THERE WOULD FIRST HAVE TO BE
100
1 A PHYSICIAN ORDER FOR THE MEDICATION.
2 Q. OKAY.
3 A. AND THEN IT WOULD HAVE TO BE ADDED TO THE MEDICATION
4 ADMINISTRATION RECORD, AND IT WOULD HAVE TO BE SIGNED OFF ON
5 THE MAR BY THE NURSE SAYING THAT THE MEDICATION WAS GIVEN.
6 AND IF THAT MEDICATION WAS A CONTROLLED SUBSTANCE, THEN YOU
7 SHOULD BE ABLE TO GO TO THE CONTROLLED SUBSTANCE LOG, FIND
8 THAT PATIENT'S NAME AND BE ABLE TO CORRELATE WHEN THE
9 MEDICATION WAS TAKEN OUT OF THE LOCKED CONTAINER THAT THE
10 CONTROLLED SUBSTANCES ARE KEPT IN AND ADMINISTERED TO THE
11 PATIENT.
12 Q. AND WHOSE RESPONSIBILITY IS THAT?
13 A. AN R.N.
14 Q. OKAY. I TAKE IT THAT IN YOUR CAPACITY, AGAIN, YOU'RE
15 ALSO -- WOULD HAVE FAMILIARITY, IF NOT CONTROL, OVER THE
16 POLICIES AND PROCEDURES THAT ARE USED IN THE HOSPITAL; IS
17 THAT CORRECT?
18 A. CORRECT. I'M AWARE OF THEM; SOME OF THEM I'M
19 RESPONSIBLE FOR.
20 Q. WHICH ONES ARE YOU RESPONSIBLE FOR?
21 A. FOR THE MOST PART I'M RESPONSIBLE FOR ALL OF THE RISK
22 MANAGEMENT AND QUALITY IMPROVEMENT POLICIES AND PLANNING.
23 Q. OKAY.
24 A. I SERVE ON A COMMITTEE THOUGH THAT ROUTINELY REVIEWS,
25 AMENDS, REVISES POLICIES, SO I'M QUITE FAMILIAR WITH THE
101
1 POLICIES AND PROCEDURES OF THE HOSPITAL.
2 Q. WHERE ARE THOSE POLICIES AND PROCEDURES MAINTAINED?
3 A. EVERY DEPARTMENT HAS A SET.
4 Q. OKAY. I ASSUME YOU ALSO HAVE A SET?
5 A. YES, I DO.
6 Q. DO YOU HAVE A SET OF THOSE POLICIES AND PROCEDURES THAT
7 WERE MAINTAINED IN -- IN 1994, '95, AND '96?
8 A. I DON'T PERSONALLY HAVE THEM. THEY'RE MAINTAINED IN OUR
9 NURSING EDUCATION OFFICE.
10 Q. OKAY. YOU HAVE ACCESS TO THOSE POLICIES AND PROCEDURES?
11 A. I DO.
12 Q. AND DID YOU HAVE OCCASION TO REVIEW THE POLICIES AND
13 PROCEDURES IN CONNECTION WITH -- WITH THIS MATTER?
14 A. YES.
15 Q. GOING BACK --
16 A. SOME OF THEM, YES.
17 Q. SOME OF THEM?
18 A. UH-HUH.
19 Q. CAN YOU TELL US WHAT ONES THAT YOU REVIEWED IN
20 CONNECTION -- AT MY REQUEST IN THIS MATTER?
21 A. I -- I REVIEWED A POLICY AND PROCEDURE CALLED THE DO NOT
22 RESUSCITATE OR D.N.R. POLICY, AND THE ADVANCE DIRECTIVES
23 POLICY.
24 Q. OKAY. I SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT
25 NUMBER 1, ASK YOU TO TAKE A LOOK AT THAT, IF YOU WOULD,
102
1 PLEASE.
2 A. OKAY.
3 Q. ARE YOU FAMILIAR WITH THAT EXHIBIT?
4 A. YES, I AM.
5 Q. NOW, IN THAT EXHIBIT THERE ARE TWO SECTIONS. CAN YOU
6 DESCRIBE THOSE SECTIONS FOR US?
7 A. THE FIRST ONE IS A POLICY AND PROCEDURE ENTITLED
8 WITHHOLDING OF RESUSCITATIVE SERVICES, DO NOT RESUSCITATE
9 GUIDELINES.
10 Q. OKAY.
11 A. THE SECOND ONE IS TITLED ADVANCE DIRECTIVES, DECLARATION
12 OF LIVING WILL/SPECIAL POWER OF ATTORNEY.
13 Q. OKAY. CAN YOU TELL US WHAT THE EFFECTIVE DATE IS ON THE
14 FIRST ONE, ON THE --
15 A. THE EFFECTIVE DATE IS 7/1/93.
16 Q. AND I NOTE THAT THAT IS CONTAINED IN THE RIGHT-HAND
17 CORNER OF THE PARTICULAR DOCUMENT?
18 A. YES, IT IS.
19 Q. OKAY. IN RESPECT TO THE -- THAT PARTICULAR SECTION ON
20 THE DOCUMENT, IT ALSO INDICATES AMENDED 5/31/96?
21 A. UH-HUH.
22 Q. CAN YOU TELL US WHAT THAT MEANS?
23 A. THAT IT WAS REVIEWED AND MAY OR MAY NOT HAVE HAD MINOR
24 CHANGES IN LANGUAGE. THE SUBSTANCE OF THE POLICY HAS NOT
25 BEEN CHANGED.
103
1 Q. OKAY. DID THE DOCUMENT THAT WE'RE LOOKING AT THERE, WAS
2 THAT THE DOCUMENT THAT WAS IN EFFECT IN 1993 TO '96?
3 A. THIS PARTICULAR DOCUMENT WAS AMENDED IN 1996, SO THIS IS
4 PROBABLY SLIGHTLY DIFFERENT THAN THE ONE THAT WAS IN PLACE
5 IN '95 AND '96.
6 Q. OKAY. IN RESPECT TO THE SECOND EXHIBIT, AGAIN, THAT
7 BEARS AN EFFECTIVE DATE OF 12/91; IS THAT CORRECT?
8 A. YES, IT IS.
9 Q. AND ALSO INDICATES AN AMENDMENT BACK IN 6/93 AND 8/96?
10 A. YES.
11 Q. CAN YOU TELL US WHERE THAT DOCUMENT WAS OBTAINED?
12 A. FROM THE HOSPITAL POLICIES AND PROCEDURES.
13 Q. OKAY. THESE ALSO BEAR THE SIGNATURE AS RECOMMENDED BY,
14 I THINK ON THE FIRST ONE -- COULD YOU TELL US WHO IT WAS
15 RECOMMENDED BY?
16 A. GILBERT CAILLOUET.
17 Q. OKAY.
18 A. HE WAS THE -- A PHYSICIAN THAT WAS THE CHAIRMAN OF THE
19 MEDICINE DEPARTMENT.
20 Q. OKAY. THESE DOCUMENTS REFLECT THE POLICY OF THE
21 HOSPITAL IN RESPECT TO THE ADMINISTRATION OR THE DO NOT
22 RESUSCITATE ORDERS, AND ALSO IN RESPECT TO LIVING WILLS?
23 A. CORRECT.
24 Q. OKAY. I ASSUME THE HOSPITAL HAS A VARIETY OF POLICIES
25 AND PROCEDURES THAT THEY OPERATE UNDER?
104
1 A. YES.
2 Q. DO ANY OF THOSE POLICIES AND PROCEDURES DEAL WITH THE
3 CREDENTIALING PROCESS?
4 A. WE DO HAVE POLICIES AND PROCEDURES WITH REGARD TO THE
5 CREDENTIALING PROCESS. IN ADDITION, THERE IS EXTENSIVE
6 DOCUMENTATION IN THE MEDICAL STAFF BYLAWS THAT ADDRESSES
7 CREDENTIALING.
8 Q. OKAY. EXPLAIN TO THE JURY, IF YOU WILL -- WELL, LET
9 ME -- LET ME APPROACH IT FROM THIS STANDPOINT. IN THE
10 HOSPITAL SETTING YOU HAVE DOCTORS AND YOU HAVE NURSES AND
11 YOU HAVE OTHER SOCIAL WORKERS AND EMPLOYEES THAT -- THAT
12 WORK IN THE HOSPITAL; IS THAT CORRECT?
13 A. YES.
14 Q. NOW, AS A PHYSICIAN, CAN I BE EMPLOYED BY THE HOSPITAL?
15 A. IN A CAPACITY AS A MEDICAL DIRECTOR. THAT'S CURRENTLY
16 THE KIND OF RELATION -- EMPLOYMENT RELATIONSHIPS WE HAVE
17 WITH PHYSICIANS.
18 Q. SO IF I'M A PHYSICIAN AND I WORK IN THE HOSPITAL, IS
19 THERE A DIFFERENT PROCESS THAT I GO THROUGH THAN WHAT A
20 REGULAR EMPLOYEE LIKE A NURSE OR SOMEBODY ELSE WOULD GO
21 THROUGH?
22 A. YES. YES. FOR A PHYSICIAN TO WORK IN THE HOSPITAL THEY
23 HAVE TO FIRST APPLY TO BE MEMBERS OF THE MEDICAL STAFF; AND
24 THEN THEY ALSO HAVE TO SUPPLY THE HOSPITAL -- AND REQUEST
25 PRIVILEGES, WHICH IS THE TYPE OF CARE AND TREATMENT THEY ARE
105
1 ANTICIPATING HAVING WITH PATIENTS.
2 Q. OKAY. AND SO I HAVE TO APPLY TO THE HOSPITAL IF I'M A
3 PHYSICIAN FOR PRIVILEGES TO -- TO WORK IN THAT HOSPITAL?
4 A. YES, YOU DO.
5 Q. OKAY. AND IS THAT THE CASE AT DAVIS HOSPITAL?
6 A. YES, IT IS.
7 Q. AND CAN YOU TELL US, HOW DO I GO ABOUT APPLYING FOR
8 PRIVILEGES TO WORK AT THAT HOSPITAL?
9 A. THE FIRST THING A PHYSICIAN NEEDS TO DO IS TO CONTACT
10 THE HOSPITAL AND INDICATE AN INTEREST IN APPLYING AS A -- TO
11 THE MEDICAL STAFF AT THE HOSPITAL. THE FIRST THING THEY --
12 THEY GET, I BELIEVE, IS CALLED A PRE-APPLICATION FORM THAT
13 THEY NEED TO FILL OUT AND SEND IN TO THE HOSPITAL. AND THEN
14 THEY FOLLOW UP, THE OFFICE THEN SENDS THEM A FULL
15 APPLICATION FORM TO THE MEDICAL STAFF. AND ALONG WITH THAT
16 PROCESS THEY'RE REQUIRED TO PROVIDE PROOF OF THEIR EDUCATION
17 AND THEIR LICENSE AS AN M.D. THEY NEED TO HAVE PROOF THAT
18 THEY'RE LICENSED IN THE STATE OF UTAH. THEY HAVE TO HAVE
19 PROOF FROM THE D.E.A. OF A LICENSE TO PRESCRIBE CONTROLLED
20 SUBSTANCES. THEY GENERALLY HAVE TO GIVE A NUMBER OF
21 REFERENCES.
22 WE -- WE -- THE HOSPITAL THEN VERIFIES WITH THEIR
23 MEDICAL SCHOOL, WITH THE SCHOOLS OR HOSPITALS THEY DID
24 INTERNSHIPS AND RESIDENCIES IN, AND IF THEY'RE BOARD
25 CERTIFIED IN THEIR SPECIALTY.
106
1 IN ADDITION TO THAT, THEY HAVE TO FILL OUT WHAT'S
2 CALLED A PRIVILEGE REQUEST FORM WHERE THEY OUTLINE WHAT
3 THEY'RE INTERESTED IN -- THE KIND OF CARE AND TREATMENT THEY
4 INTEND TO PROVIDE. IT'S VERY -- IT DEPENDS VERY MUCH ON
5 THEIR SPECIALTY.
6 AND THEN ALL OF THOSE DOCUMENTS, ONCE THEY'RE COMPILED
7 AND EVERYTHING IS -- WE'VE RECEIVED EVERYTHING FROM THE
8 SCHOOLS AND SO ON, THEN A COMMITTEE OF THE MEDICAL STAFF
9 CALLED THE CREDENTIALS COMMITTEE WILL REVIEW THOSE RECORDS
10 AND MAKE SURE THAT EVERYTHING'S IN ORDER AND THEY FEEL
11 COMFORTABLE THAT THE DOCTOR HAS THE CREDENTIALS THAT'S
12 NECESSARY FOR THEM TO PRACTICE IN THE HOSPITAL.
13 Q. OKAY.
14 A. THAT COMMITTEE, BASED ON THAT -- THAT REVIEW, WILL
15 EITHER RECOMMEND OR NOT RECOMMEND THAT THE PHYSICIAN BE
16 GRANTED PRIVILEGES AND IS ACCEPTED AS A MEMBER OF THE
17 MEDICAL STAFF TO WHAT'S CALL THE MEDICAL EXECUTIVE
18 COMMITTEE, WHICH IS KIND OF THE -- IT'S MADE UP OF THE
19 CHAIRMAN OF THE VARIOUS DEPARTMENTS OF THE MEDICAL STAFF IN
20 THE HOSPITAL, ALONG WITH THE PRESIDENT OF THE MEDICAL STAFF
21 AND SO ON.
22 Q. SO THE FIRST THING IS YOU MAKE APPLICATION.
23 A. UH-HUH.
24 Q. YOU FILL OUT THE APPLICATION, AS I UNDERSTAND IT. IT
25 GOES TO THE CREDENTIALS COMMITTEE AND THEN THEY --
107
1 A. ALONG WITH ALL THE OTHER STUFF THAT --
2 Q. ALONG WITH ALL THE OTHER STUFF --
3 A. UH-HUH.
4 Q. -- THAT NEEDS TO BE CONTAINED IN THE APPLICATION. AND
5 THEN THE CREDENTIALS COMMITTEE RECOMMENDS TO THE --
6 A. MEDICAL EXECUTIVE COMMITTEE.
7 Q. OKAY. AS PART OF THAT APPLICATION PROCESS, ONCE THE
8 APPLICATION IS RECOMMENDED AND IF IT'S ACCEPTED BY THE
9 MEDICAL --
10 A. EXECUTIVE COMMITTEE.
11 Q. -- EXECUTIVE COMMITTEE, DOES THAT INDIVIDUAL THEN HAVE
12 PRIVILEGES TO -- TO WORK IN THE HOSPITAL?
13 A. NO, THEY DON'T.
14 Q. OKAY. IS THERE ANOTHER PROCESS THAT THEN THEY HAVE TO
15 GO THROUGH IN ORDER TO HAVE THOSE PRIVILEGES?
16 A. THOSE RECORDS -- ONCE THEY'RE RECOMMENDED TO THE MEDICAL
17 EXECUTIVE COMMITTEE, THE MEDICAL EXECUTIVE COMMITTEE REVIEWS
18 AND ACTS ON THEM AND MAKES A DECISION AS TO WHETHER OR NOT
19 TO RECOMMEND OR NOT RECOMMEND PRIVILEGES AND MEMBERSHIP TO
20 THE BOARD OF TRUSTEES.
21 Q. OKAY. IN THIS APPLICATION PROCESS, DO THE POLICIES AND
22 REGULATIONS OF THE HOSPITAL PLAY ANY PART IN THAT?
23 A. YES.
24 Q. OKAY. AND WHAT PART DO THEY PLAY? IS A PHYSICIAN
25 REQUIRED TO REVIEW -- WHO'S MAKING APPLICATION REVIEW THOSE
108
1 POLICIES?
2 A. THE PHYSICIANS, WHEN THEY ARE ACCEPTED INTO THE MEDICAL
3 STAFF, ARE REQUIRED TO AGREE TO ABIDE BY THE BYLAWS AND
4 RULES AND REGULATIONS OF THE MEDICAL STAFF, THE BYLAWS OF
5 THE HOSPITAL, AND THE POLICIES AND PROCEDURES OF THE
6 HOSPITAL.
7 Q. OKAY. AND YOU INDICATED THAT THERE WAS A PROCESS -- A
8 FURTHER PROCESS AS TO PRIVILEGES. CAN YOU EXPLAIN TO THE
9 JURY WHAT WE MEAN BY PRIVILEGES?
10 A. PRIVILEGES IS THE KIND OF CARE AND TREATMENT THAT THE
11 DOCTOR IS REQUESTING THE OPPORTUNITY TO EITHER PROVIDE OR
12 PRACTICE IN THE HOSPITAL -- WITH PATIENTS IN THE HOSPITAL.
13 FOR INSTANCE, A SURGEON WILL FILL OUT A PRIVILEGE
14 DELINEATION FORM SAYING I WANT TO BE ABLE TO PERFORM
15 APPENDECTOMIES AND CHOLECYSTECTOMIES -- WHICH IS GALLBLADDER
16 SURGERY -- AND BOWEL SURGERY, WHATEVER. AND WHEN YOU LOOK
17 AT THAT PRIVILEGE FORM, YOU THEN LOOK AT THE EDUCATION AND
18 TRAINING THAT THE SURGEON UNDERWENT WHEN HE WAS GOING TO
19 SCHOOL, WHAT KIND OF RESIDENCY HE TOOK, WHETHER OR NOT HE'S
20 BOARD CERTIFIED AS A SURGEON. AND THE CREDENTIALS AND
21 MEDICAL EXECUTIVE COMMITTEE THEN REVIEWS ALL OF THAT AND
22 SAYS YES OR NO.
23 Q. OKAY.
24 A. BASED ON THAT REQUEST FOR PRIVILEGES.
25 Q. SO -- SO YOU COULD -- YOU COULD REQUEST A VARIETY OF
109
1 PRIVILEGES, I TAKE IT.
2 A. YEAH.
3 Q. IF YOU FELT YOU WERE QUALIFIED TO --
4 A. UH-HUH.
5 Q. -- TO PROVIDE THOSE SERVICES?
6 A. UH-HUH.
7 Q. AND IN -- IN RESPECT TO THE CREDENTIALS AND THE
8 EXECUTIVE COMMITTEE, THEN THEY WOULD EITHER APPROVE OR DENY
9 WHATEVER PRIVILEGES YOU CAN -- YOU CAN USE AT THE HOSPITAL?
10 A. YES.
11 Q. WHAT DOES -- WHAT DOES THAT MEAN THOUGH IN TERMS OF THE
12 PHYSICIAN? DOES THAT MEAN IF HE'S DENIED A CERTAIN
13 PRIVILEGE, HE CAN'T DO THOSE TYPES OF THINGS?
14 A. THAT'S RIGHT.
15 Q. OKAY. AND IS THERE A -- IS THERE A DEFINITION IN THE
16 HOSPITAL AS TO WHAT TYPES OF SERVICES DIFFERENT PRIVILEGES
17 ALLOW?
18 A. YES. EACH SECTION OF THE MEDICAL STAFF, THE VARIOUS
19 SPECIALTIES: INTERNAL MEDICINE, PEDIATRICS, CARDIOLOGY,
20 SURGERY, THINGS OF THAT NATURE, ALL HAVE A PRIVILEGE
21 DELINEATION FORM THAT IS SET UP TO REFLECT THE KIND OF
22 PRIVILEGES THAT DOCTORS WITH THAT TRAINING AND EXPERIENCE
23 AND SO ON WOULD BE LIKELY TO REQUEST. A PHYSICIAN THAT'S
24 AN -- HAS A SPECIALTY IN INTERNAL MEDICINE, FOR INSTANCE,
25 WOULD NOT HAVE A PRIVILEGE FORM THAT OFFERED HIM THE
110
1 OPPORTUNITY TO DO SURGERY BECAUSE HE'S NOT A SURGEON.
2 Q. OKAY.
3 A. ONLY THE SECTIONS OF THE MEDICAL STAFF THAT ARE SURGEONS
4 WOULD HAVE THOSE AS AN OPTION ON THEIR PRIVILEGE FORM.
5 Q. ARE THERE ANY GENERAL CATEGORIES THAT PRACTICE IN THE
6 HOSPITAL?
7 A. THERE ARE SOME CATEGORIES OF GENERAL MEDICAL CARE THAT
8 ARE OPTIONS ON MANY OF THE PRIVILEGE FORMS.
9 Q. OKAY. I TAKE IT PSYCHIATRY WOULD BE A SPECIAL
10 SPECIALTY; IS THAT CORRECT?
11 A. YES.
12 Q. OKAY. IN RESPECT TO THE BILLING FOR SERVICES, IS THERE
13 A DIFFERENTIATION BETWEEN A PHYSICIAN PROVIDING SERVICES AND
14 THE HOSPITAL SERVICES?
15 A. YES.
16 Q. CAN YOU EXPLAIN THAT FOR US, PLEASE?
17 A. THE HOSPITAL ONLY BILLS FOR SERVICES THAT ARE PROVIDED
18 BY HOSPITAL EMPLOYEES ON BEHALF OF THE HOSPITAL.
19 Q. OKAY.
20 A. OUR NURSES WORK FOR THE HOSPITAL, THE LAB TECHS, THE
21 RADIOLOGY TECHS, THE PHARMACISTS, SO ON AND SO FORTH.
22 Q. SO --
23 A. AND THE HOSPITAL BILLS FOR THOSE SERVICES AND THAT'S
24 ALL.
25 Q. SO HOW DOES -- HOW ARE YOU PHYSICIANS BILLINGS HANDLED?
111
1 A. PHYSICIANS BILL SEPARATELY. THEY'RE INDEPENDENT
2 CONTRACTORS. THEY'RE NOT EMPLOYED BY THE HOSPITAL.
3 Q. WELL, ASSUMING THAT YOU HAVE A UNIT IN THE HOSPITAL THAT
4 HOUSES PHYSICIANS, WILL THEY -- WILL THEY BILL SEPARATE AND
5 APART FROM THE HOSPITAL ITSELF, TOO?
6 A. YES.
7 Q. OKAY. IS THE GEROPSYCH UNIT OPERATED INDEPENDENTLY BY
8 ANYBODY NOW?
9 A. NO. IT'S OPERATED BY THE HOSPITAL.
10 Q. OKAY. DO YOU KNOW HOW LONG THAT'S BEEN IN PLACE?
11 A. SINCE MID TO LATE 1996.
12 Q. ALL RIGHT. JUST A COUPLE OF MORE QUESTIONS RELATED TO
13 HOSPITAL POLICIES.
14 IS THERE IN PLACE, TO YOUR KNOWLEDGE, PROCEDURES FOR
15 SITUATIONS WHERE A NURSE MAY HAVE A CONFLICT WITH A DOCTOR?
16 A. YES. IT'S CALLED CONFLICT RESOLUTION.
17 Q. OKAY. AND CAN YOU TELL US A LITTLE BIT ABOUT THAT
18 PROCESS, WHAT HAPPENS THERE?
19 A. IF A NURSE HAS A CONFLICT WITH A PHYSICIAN, THE FIRST
20 THING THAT THEY ARE INSTRUCTED TO DO IS GO TO THEIR
21 IMMEDIATE SUPERVISOR.
22 Q. OKAY. AND IF THEY -- IF THEY ARE NOT SATISFIED WITH THE
23 RESULT OF THAT?
24 A. THEN THEY -- THEY CAN GO TO THE PERSON THAT IS THE --
25 THE SUPER -- WHOEVER THE SUPERVISOR REPORTS TO. IT'S KIND
112
1 OF AN UP-THE-LADDER SORT OF THING. THERE'S A NURSE -- A
2 UNIT SUPERVISOR, THEN THERE WOULD BE A DIRECT -- NURSING
3 DIRECTOR, DEPENDING ON A CERTAIN SECTION OF THE HOSPITAL,
4 AND THEN THERE WOULD BE THE CHIEF NURSING OFFICER.
5 Q. I --
6 A. AND THEN ABOVE THAT, THE ADMINISTRATOR OF THE HOSPITAL.
7 Q. I GUESS IT WOULD DEPEND A LITTLE BIT ON THE NATURE OF
8 THE CONFLICT.
9 A. YES, IT WOULD.
10 Q. OKAY. AND IN RESPECT TO A CONFLICT SURROUNDING THE
11 ADMINISTRATION OF MEDICATION, IS THERE A DIFFERENT PROCEDURE
12 WITH THAT?
13 A. NO.
14 Q. TO YOUR KNOWLEDGE, IS THERE ANY POLICY WHICH REQUIRES A
15 NURSE TO GO TO THE PHYSICIAN THAT SHE HAS THE CONFLICT WITH
16 AND TRY TO RESOLVE IT AT THAT LEVEL?
17 A. THERE'S NOTHING IN WRITING, BUT WE ALWAYS --
18 MR. STIRBA: YOUR HONOR -- YOUR HONOR, I'M GOING TO
19 OBJECT AS TO RELEVANCY AND FOUNDATION. WE DON'T KNOW WHAT
20 TIME PERIOD THIS IS. WE DON'T --
21 THE COURT: SUSTAINED.
22 MR. STIRBA: -- EVEN HAVE A POLICY.
23 THE COURT: SUSTAINED.
24 Q. (BY MR. WILSON) WHO IS THE HOSPITAL OPERATED BY OR
25 OWNED BY AT THE PRESENT TIME?
113
1 A. IASIS HEALTHCARE, INCORPORATED.
2 Q. DO YOU KNOW WHO IT WAS OWNED BY BACK IN 1995 AND '96?
3 A. I BELIEVE IT WAS COLUMBIA.
4 Q. OKAY. HAS IT CHANGED OWNERSHIP TO ANOTHER PARTY SINCE
5 THAT TIME?
6 A. YES. IT WAS OWNED BY PARACELSUS PRIOR TO IASIS.
7 Q. OKAY.
8 MR. WILSON: MAY I HAVE JUST A MINUTE, YOUR HONOR?
9 THE COURT: YES.
10 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION BETWEEN
11 MR. WILSON AND MS. BARLOW.)
12 Q. (BY MR. WILSON) IN YOUR -- IN YOUR POSITION IN QUALITY
13 AND RISK MANAGEMENT, WHEN YOU CAME ON BOARD AT THE HOSPITAL,
14 DID YOU HAVE OCCASION TO REVIEW THOSE POLICIES DEALING
15 WITH -- WITH CONFLICT RESOLUTION BETWEEN PHYSICIANS AND
16 NURSES AND OTHER PERSONNEL?
17 A. YES.
18 Q. OKAY. DID YOU -- DID YOU HAVE AN OCCASION THEN TO
19 REVIEW THE POLICIES THAT WERE IN PLACE BACK IN 1993 AND
20 '94 --
21 A. NO, I DID NOT.
22 Q. -- AND '95? PARDON?
23 A. NO. UNLESS THEY HADN'T BEEN CHANGED SINCE THEN.
24 Q. OKAY.
25 A. IT WOULD DEPEND ON THE AMENDMENT DATES.
114
1 Q. I APPRECIATE THAT. THANK YOU.
2 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
3 HONOR.
4 MR. STIRBA: COULD I HAVE A MINUTE TO CONSULT WITH
5 COUNSEL?
6 THE COURT: YES.
7 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION BETWEEN
8 MR. STIRBA AND MR. WILSON.)
9 CROSS-EXAMINATION
10 BY MR. STIRBA:
11 Q. MS. HEWARD, YOU'RE FAMILIAR WITH THE FEDERAL PATIENT
12 SELF-DETERMINATION ACT?
13 A. YES, I AM.
14 Q. AND THAT'S AN ACT THAT WAS PASSED IN 1990 BY THE U.S.
15 CONGRESS, CORRECT?
16 A. I'LL TAKE YOUR WORD FOR IT.
17 Q. TAKE MY WORD FOR IT. AND -- AND THE ACT IS SOMETHING
18 THAT IMPOSES SOME OBLIGATIONS ON HOSPITALS TO PROVIDE SOME
19 INFORMATION CONCERNING MEDICAL DIRECTORS -- DIRECTIVES TO
20 PATIENTS; ISN'T THAT TRUE?
21 A. YES, SIR.
22 Q. AND WHEN WE USE THE TERM "MEDICAL DIRECTIVES," WHAT
23 WE'RE TALKING ABOUT ARE REPRESENTATIONS BY THE PATIENT AS TO
24 CERTAIN KINDS OF CARE THAT MAY OR MAY NOT BE GIVEN UNDER
25 CERTAIN CIRCUMSTANCES, CORRECT?
115
1 A. CORRECT.
2 Q. IN OTHER WORDS, IT'S SIMILAR TO A LIVING WILL, IS IT
3 NOT?
4 A. AN ADVANCE DIRECTIVE IS -- CAN ENCOMPASS A NUMBER OF
5 THINGS, AMONG THEM A LIVING WILL.
6 Q. AND IN YOUR REVIEW OF THE MEDICAL RECORDS IN THIS CASE,
7 YOU SAW, DID YOU NOT, THAT THERE WERE EITHER MEDICAL
8 DIRECTIVES OR LIVING WILLS THAT WERE IN THE MEDICAL FILES
9 FOR THESE PATIENTS?
10 A. I BELIEVE SO, YES. I'D HAVE TO LOOK AT ALL FIVE OF THEM
11 TO MAKE SURE, BUT I BELIEVE SO.
12 Q. AND THOSE PARTICULAR DOCUMENTS WERE DOCUMENTS WHICH
13 WOULD HAVE LIMITED CERTAIN KINDS OF MEDICAL TREATMENT, IS
14 THAT NOT RIGHT?
15 A. YES.
16 MR. STIRBA: MR. MAY, IF YOU COULD BE
17 MR. TECHNOLOGY, PLEASE.
18 (MR. MAY TURNS ON DISPLAY.)
19 MR. STIRBA: MAY I CONSULT WITH COUNSEL AGAIN, YOUR
20 HONOR, PLEASE?
21 THE COURT: YES.
22 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION
23 BETWEEN MR. STIRBA AND MR. WILSON.)
24 Q. (BY MR. STIRBA) I'VE PUT UP ON THE SCREEN -- CAN
25 YOU -- CAN YOU SEE THAT VERY WELL FROM WHERE YOU'RE SEATED,
116
1 MS. HEWARD?
2 A. YEAH.
3 Q. OKAY. THAT'S A -- SAYS AT THE TOP MEDICAL TREATMENT
4 PLAN, AND IT SAYS FOR MICHAEL SUMKO, AND THEN IT -- IS THE
5 ATTENDING PHYSICIAN FOR ELLEN ANDERSON. DO YOU SEE THAT?
6 A. YES.
7 Q. AND I'M GOING TO GO AND SORT OF SCOOT THIS UP A LITTLE
8 BIT SO WE CAN SEE DOWN AT THE BOTTOM. APPARENTLY THERE'S A
9 SIGNATURE THERE DOWN AT THE BOTTOM THAT LOOKS LIKE BARBARA
10 POHLMAN. DO YOU SEE THAT?
11 A. UH-HUH.
12 Q. NOW, IS THIS -- IS THIS A DOCUMENT THAT YOU RECALL
13 SEEING, FOR EXAMPLE, IN MS. ANDERSON'S MEDICAL FILE?
14 A. YES.
15 Q. AND IS THIS IN THE NATURE OF A DIRECTIVE THAT WOULD BE
16 IN THE FILE THAT WOULD DIRECT ATTENDING PHYSICIANS IN TERMS
17 OF WITHHOLDING OR WITHDRAWING CERTAIN CARE FOR HER UNDER
18 CERTAIN CIRCUMSTANCES?
19 A. YES.
20 Q. AND, SPECIFICALLY, IT SAYS THERE, DOES IT NOT, THAT THE
21 FOLLOWING CARE AND TREATMENT OR WITHHOLDING OF TREATMENT IS
22 DIRECTED WITH RESPECT TO THE DECLARANT. AND THEN IT SAYS,
23 WITHHOLD TREATMENT OF OXYGEN THERAPY, RESPIRATION --
24 RESPIRATOR TREATMENTS, SUCTIONING, MECHANICAL VENTILATION,
25 VENTILATOR SUPPORT, C.P.R., CHEST COMPRESSIONS, CARDIAC
117
1 MEDICATIONS DURING C.P.R., DEFIBRILLATION, CHEMOTHERAPY,
2 RADIATION, SURGERY, I.V. FLUIDS, N.G., GASTRIC TUBE, AND
3 SPEAK WITH AUTHORIZED AGENT BEFORE USING ANTIBIOTICS.
4 DID I READ THAT CORRECTLY?
5 A. I BELIEVE SO.
6 Q. AND IF A PHYSICIAN HAD THIS IN THE FILE -- AND YOU'VE
7 ALREADY TESTIFIED THAT THIS IS SOMETHING THAT WAS IN HER
8 FILE -- IT'S TRUE, IS IT NOT, THAT A PHYSICIAN SHOULD
9 OTHERWISE COMPLY WITH THOSE DIRECTIVES AS INDICATED IN
10 HOSPITAL POLICY; ISN'T THAT CORRECT?
11 A. PARTIALLY.
12 Q. AND IN WHAT PART IS IT NOT CORRECT, MA'AM?
13 A. THE HOSPITAL POLICY AND PROCEDURE WITH REGARD TO
14 WITHHOLDING, WITHDRAWING, OR DO NOT RESUSCITATE CALL FOR
15 ANOTHER PHYSICIAN TO EXAMINE THE PATIENT AND AGREE WITH THE
16 ATTENDING PHYSICIAN AS TO WHETHER OR NOT THE D.N.R. IS
17 APPROPRIATE, GIVEN THE PERSON'S CONDITION.
18 Q. YES. AND THAT'S WITH RESPECT TO THE D.N.R. BUT IT'S
19 ALSO TRUE IN THAT POLICY, IT STATES SPECIFICALLY THAT THE
20 HOSPITAL IS FULLY COGNIZANT OF UTAH LAW IN REGARD TO
21 DIRECTIVES, AND THAT IS A PHYSICIAN MUST FOLLOW THOSE
22 DIRECTIVES; ISN'T THAT TRUE?
23 A. YES.
24 Q. AND IT ALSO STATES IN THE POLICY THAT IF A PHYSICIAN
25 FOLLOWS THOSE DIRECTIVES IN GOOD FAITH, THAT PHYSICIAN IS
118
1 IMMUNE BOTH CRIMINALLY AND CIVILLY; ISN'T THAT TRUE?
2 A. I CAN'T ANSWER THAT. I HAVE NO PERSONAL KNOWLEDGE.
3 Q. YOU'RE NOT AWARE THAT'S IN THE POLICY?
4 A. (NO RESPONSE.)
5 Q. AND YOUR ANSWER IS YOU'RE NOT AWARE THAT'S IN THE
6 POLICY?
7 A. I DON'T RECALL THOSE WORDS.
8 Q. TURN TO --
9 A. IF YOU COULD --
10 Q. TURN TO PAGE 5.
11 A. OF WHICH POLICY?
12 Q. OF THE ADVANCE DIRECTIVES POLICY. PARAGRAPH 7 READS --
13 MR. WILSON: YOUR HONOR, I'M GOING TO INTERPOSE AN
14 OBJECTION AT THIS TIME. WE HAVEN'T OFFERED THIS PARTICULAR
15 EXHIBIT INTO EVIDENCE. AND I THINK THAT IF MR. STIRBA IS
16 WILLING TO STIPULATE TO ITS SUBMISSION INTO EVIDENCE AT THIS
17 TIME, THEN I'D BE MORE THAN WILLING TO ALLOW HIM TO CONTINUE
18 TO REFER TO THE POLICY AS IT'S CONTAINED IN THE ADVANCE
19 DIRECTIVE.
20 MR. STIRBA: WELL, MY QUESTION REALLY IS, IS SHE
21 AWARE OF THE POLICY IN REGARD TO THE QUESTION. I BELIEVE
22 SHE ANSWERED SHE WAS NOT. AND I WAS DIRECTING HER ATTENTION
23 TO A PARTICULAR PARAGRAPH AND WAS GOING TO READ IT TO HER.
24 MR. WILSON: WELL, I APPRECIATE THAT.
25 THE COURT: WELL, JUST -- ARE YOU GOING -- IS THERE
119
1 GOING TO BE A STIPULATION AS TO THE RECEIPT OF THIS EXHIBIT?
2 MR. STIRBA: NO, I DON'T THINK I CAN STIPULATE TO
3 THAT PARTICULAR PORTION.
4 THE COURT: OKAY. AND YOU'RE JUST GOING TO POINT
5 OUT THAT QUESTION JUST AS CROSS-EXAMINATION?
6 MR. STIRBA: RIGHT, AND ASK HER IF THAT'S THE
7 POLICY.
8 THE COURT: OKAY. I -- THAT'S OVERRULED THEN.
9 I'LL ALLOW IT FOR THAT QUESTION.
10 MR. WILSON: YOUR HONOR, IF I MIGHT JUST ARGUE IT A
11 LITTLE BIT FURTHER.
12 FROM THE STANDPOINT -- I THINK THE OBJECTION THAT
13 MR. STIRBA HAS MADE OR WOULD MAKE EARLIER IS THAT THE
14 DECLARANT HERE TESTIFIED TO THE EFFECT THAT SHE WASN'T SURE
15 WHETHER THIS WAS THE POLICY THAT WAS IN EFFECT BACK AT THE
16 TIME OF THESE PARTICULAR DEATHS, SO WE DID NOT INTEND TO ASK
17 FOR THE ADMISSION OF THIS PARTICULAR EXHIBIT. I THINK WITH
18 THAT INFIRMITY, WE DON'T KNOW WHETHER THAT PARTICULAR
19 PROVISION THAT HE'S GOING TO ADDRESS WITH HER RELATES TO
20 WHAT WAS IN EFFECT AT THE TIME OR NOT.
21 THE COURT: WELL, I THINK THAT'S HIS QUESTION. HE
22 WANTS TO ASK HER THE QUESTION AS TO WHAT WAS THE POLICY THAT
23 WAS IN EFFECT?
24 MR. STIRBA: RIGHT.
25 THE COURT: OKAY. OVERRULED.
120
1 Q. (BY MR. STIRBA) NOW, MS. HEWARD, THE ADVANCE
2 DIRECTIVE -- PAGE 1 -- POLICY, INDICATES IT WAS AMENDED 6/93
3 AND 8/96, TRUE? AT THE TOP?
4 A. YES.
5 Q. AND THE EFFECTIVE DATE IS 12/91, TRUE?
6 A. YES.
7 Q. NOW, IF YOU TURN TO THE PAGE THAT I HAVE DIRECTED YOUR
8 ATTENTION TO, THAT IS PAGE 5 OF 5, PARAGRAPH 7, I'M ASKING
9 YOU IF THIS IS CONTAINED IN THAT POLICY AND WAS THE POLICY
10 OF THE HOSPITAL AT THE TIME: PHYSICIAN AND MEDICAL CARE
11 PROVIDERS AND THEIR AGENTS, ACTING IN GOOD FAITH UNDER THE
12 PERSONAL CHOICE AND LIVING WILL, ARE IMMUNE FROM CRIMINAL OR
13 CIVIL ACTION OR PENALTY AND ARE NOT DEEMED TO HAVE COMMITTED
14 UNPROFESSIONAL CONDUCT.
15 WAS THAT THE POLICY OF THE HOSPITAL AT THE TIME?
16 THE COURT: THE TIME MEANING '95?
17 A. IN '95 AND '96?
18 Q. (BY MR. STIRBA) YES.
19 A. THIS IS THE POLICY OF THE HOSPITAL EFFECTIVE AUGUST OF
20 '96. I DO NOT HAVE A COPY OF THE POLICY -- FOR INSTANCE,
21 THIS POLICY, AFTER IT WAS AMENDED IN '93 AND BEFORE IT WAS
22 AMENDED IN AUGUST OF '96.
23 Q. SO YOUR ANSWER IS YOU DO NOT KNOW?
24 A. THAT'S RIGHT.
25 Q. NOW, SHOW YOU ANOTHER DOCUMENT UP ON THE SCREEN. THAT,
121
1 ONCE AGAIN, IS ANOTHER MEDICAL TREATMENT PLAN FOR
2 MR. ALLDREDGE. TRUE?
3 A. APPEARS SO, YES.
4 Q. AND IS THAT A DOCUMENT THAT YOU ALSO HAVE SEEN THAT IS
5 CONTAINED IN MR. ALLDREDGE'S MEDICAL FILE?
6 A. I BELIEVE SO.
7 Q. AND I NOTICE THERE THERE'S A DIAGNOSIS OF ALZHEIMER'S
8 DISEASE. DO YOU SEE THAT?
9 A. YES.
10 Q. AND THEN IF I PUSH THIS DOWN A LITTLE BIT IT STATES:
11 THE FOLLOWING CARE AND TREATMENT OR WITHHOLDING OF TREATMENT
12 IS DIRECTED WITH RESPECT TO THE DECLARANT: NO C.P.R., NO
13 RESPIRATORS. THERE APPEARS TO BE A SIGNATURE OF VONDA
14 ALLDREDGE, WIFE. DO YOU SEE THAT?
15 A. YES.
16 Q. THE DATE OF THAT DOCUMENT IS 10/11/95, TRUE?
17 A. YES.
18 Q. HERE'S ANOTHER DOCUMENT, MS. HEWARD, WHICH IS, ONCE
19 AGAIN, ANOTHER MEDICAL TREATMENT PLAN. BY THE WAY, IS THIS
20 PARTICULAR FORM -- IS THIS A FORM THAT YOU'VE SEEN BEFORE?
21 A. I'VE SEEN IT IN THESE RECORDS. THESE WERE BROUGHT TO
22 THE HOSPITAL WITH THE PATIENT.
23 Q. I SEE. SO THIS ACTUAL MEDICAL TREATMENT --
24 A. THESE --
25 Q. -- PLAN FORM WAS NOT SOMETHING THAT'S GENERATED BY THE
122
1 DAVIS HOSPITAL?
2 A. THESE WERE -- PREDATED THEIR ADMISSION TO THE HOSPITAL.
3 Q. OKAY. AND THIS ONE APPEARS TO BE FOR JUDITH LARSEN
4 DATED SEPTEMBER 19TH OF 19 -- I BELIEVE THAT IS '85.
5 PROBABLY SHOULD BE '95, BUT IT SAYS '85. TRUE?
6 A. IT SAYS '85.
7 Q. AND THIS WAS ALSO A DOCUMENT THAT YOU SAW IN HER MEDICAL
8 FILE AS WELL?
9 A. I BELIEVE SO.
10 Q. AND THERE'S A SIGNATURE DOWN THERE, MERLIN LARSEN,
11 INDICATING SON, CORRECT?
12 A. YES.
13 Q. AND IT STATES THAT NO C.P.R., NO I.V.'S FOR NUTRITION,
14 HYDRATION, MEDICATION, NO FEEDING TUBES, NO MECHANICAL
15 RESPIRATORY ASSISTANCE, NO ELECTRIC SHOCK OR DEFIBRILLATION,
16 NO TREATMENT FOR CANCER, OXYGEN, AND ORAL MEDICATION MAY BE
17 GIVEN FOR RELIEF OF PAIN -- I'M SORRY. MEDICATION MAY BE
18 GIVEN FOR RELIEF OF PAIN AND FOR COMFORT.
19 DID I READ THAT CORRECTLY?
20 A. YES.
21 Q. THIS WAS ALSO SOMETHING THAT WAS IN THE FILE OF
22 MS. LARSEN, CORRECT?
23 A. CORRECT.
24 Q. ALSO, THERE'S A DOCUMENT, LIVING WILL, WHICH I HAVE PUT
25 ON THE SCREEN. WAS THIS DOCUMENT ALSO SOMETHING THAT YOU
123
1 SAW IN THE MEDICAL FILE?
2 A. I BELIEVE SO.
3 Q. AND THIS IS DATED THE 28TH OF MAY, AND IT LOOKS LIKE A
4 '95.
5 A. YES.
6 Q. DO YOU UNDERSTAND IT TO BE A '95?
7 A. YES.
8 Q. AND THAT LOOKS LIKE A DOCUMENT THAT WAS, IN FACT, SIGNED
9 BY MS. LARSEN DOWN AT THE BOTTOM. DO YOU SEE THAT?
10 A. YES.
11 Q. AND ONCE AGAIN, THAT PARAGRAPH WHICH ADDRESSES
12 PARAGRAPH 4 -- AND I WON'T READ IT IN ITS ENTIRETY EXCEPT --
13 WELL, I WILL READ ITS ENTIRETY: I UNDERSTAND THAT THE TERM
14 LIFE-SUSTAINING PROCEDURE INCLUDES ARTIFICIAL NUTRITION AND
15 HYDRATION, AND ANY OTHER PROCEDURES THAT I SPECIFY BELOW TO
16 BE CONSIDERED LIFE SUSTAINING, BUT DOES NOT INCLUDE THE
17 ADMINISTRATION OF MEDICATION OR THE PERFORMANCE OF ANY
18 MEDICAL PROCEDURE WHICH IS INTENDED TO PROVIDE COMFORT OR TO
19 ALLEVIATE PAIN.
20 THEN IT SAYS: IF MY CONDITION IS CERTIFIED TO BE
21 TERMINAL AS IN PARAGRAPH 2, I REQUEST THAT THE SUSTENANCE,
22 MEANING NUTRITION AND HYDRATION AND RESPIRATION, BE
23 TERMINATED OR WITHHELD. MEDICATION TO RELIEVE PAIN MAY BE
24 GIVEN IF OBVIOUSLY NEEDED.
25 DID I READ THAT CORRECTLY?
124
1 A. YES.
2 Q. YES?
3 A. YES.
4 Q. ANOTHER DOCUMENT -- NOW, THIS APPEARS TO BE A DOCUMENT
5 THAT'S ACTUALLY CREATED BY THE HOSPITAL, CORRECT?
6 A. IT'S A HOSPITAL FORM, YES.
7 Q. AND THAT IS SOMETHING THAT YOU HAVE SEEN IN THE FILE --
8 I BELIEVE THIS RELATES TO LYDIA SMITH. I'LL GET DOWN TO THE
9 BOTTOM SO YOU CAN SEE THE SIGNATURES.
10 A. I CAN'T TELL.
11 Q. IT DOESN'T LOOK TO YOU LIKE THAT'S KENT SMITH OR -- DOWN
12 AT THE BOTTOM?
13 A. THAT MIGHT BE A SMITH, YES.
14 Q. OKAY.
15 A. I DON'T SEE ANYTHING WITH LYDIA'S NAME ON THERE THOUGH.
16 Q. UP AT THE TOP, MA'AM --
17 A. YES.
18 Q. -- DO YOU SEE THE STAMP, LYDIA SMITH?
19 A. NOW I DO, YES.
20 Q. AND IS THIS ALSO A DOCUMENT THAT IS CONTAINED IN HER
21 MEDICAL FILE?
22 A. I BELIEVE SO.
23 Q. AND THIS PARTICULAR DOCUMENT APPEARS TO BE DATED 1/7 OF
24 '96, TRUE?
25 A. YES.
125
1 Q. AND UNDER THE CATEGORIES THERE WHERE IT SAYS: THE
2 FOLLOWING CARE AND TREATMENT IS DIRECTED WITH RESPECT TO THE
3 DECLARANT, THERE'S A NUMBER OF CATEGORIES, MOST OF WHICH ARE
4 CHECKED NO. TRUE?
5 A. TRUE.
6 Q. AND BY "NO" WE MEAN THAT IS A CATEGORY OF TREATMENT THAT
7 THE PATIENT OR THE PATIENT'S REPRESENTATIVE HAS DIRECTED NOT
8 TO BE GIVEN UNDER CERTAIN CIRCUMSTANCES, RIGHT?
9 A. RIGHT.
10 Q. JUST LIKE WHERE IT SAYS "YES" UNDER DO NOT RESUSCITATE,
11 D.N.R., THAT MEANS, IN FACT, DO NOT RESUSCITATE. TRUE?
12 A. YES.
13 Q. NOW, THIS PARTICULAR DOCUMENT WHICH IS ON A DAVIS
14 HOSPITAL FORM, IS THIS A FORM THAT GENERALLY IS REQUIRED TO
15 BE PROVIDED TO PATIENTS PURSUANT TO THE FEDERAL
16 SELF-DETERMINATION ACT OF 1990?
17 A. IT IS NOT REQUIRED. THEY HAVE THE OPPORTUNITY TO
18 COMPLETE ONE, IF THEY CHOOSE.
19 Q. OH, I SEE. I'M NOT SUGGESTING THEY HAVE TO COMPLETE IT,
20 BUT THE HOSPITAL HAS AN OBLIGATION TO MAKE CERTAIN ADVICE --
21 A. TO MAKE IT AVAILABLE.
22 Q. -- TO THE PATIENT AND MAKE IT AVAILABLE; ISN'T THAT
23 CORRECT?
24 A. THAT'S CORRECT.
25 Q. AND THAT'S PURSUANT TO FEDERAL LAW, TRUE?
126
1 A. AS FAR AS I KNOW, YES.
2 Q. AND FINALLY, MS. HEWARD, I HAVE PLACED ON THE BOARD
3 ANOTHER DOCUMENT, AND UP AT THE TOP IT SAYS MARY CRANE. CAN
4 YOU READ THAT? IT'S KIND OF -- I CAN HIT THE FOCUS.
5 A. I CAN READ -- I THINK I CAN READ MARY.
6 MR. STIRBA: YEAH. THANK YOU, JOHN.
7 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION
8 BETWEEN MR. STIRBA AND MR. MAY.)
9 Q. (BY MR. STIRBA) THIS IS WHERE I THINK MARY CRANE IS,
10 MA'AM (INDICATING).
11 A. I SEE MARY.
12 Q. HAVE YOU SEEN THIS DOCUMENT BEFORE SUCH THAT YOU CAN
13 RECOGNIZE THIS AS MS. CRANE'S DOCUMENT?
14 A. I BELIEVE -- I BELIEVE IT IS IN HER MEDICAL RECORD.
15 Q. OKAY. AND THAT'S DATED 12/28 OF 1995, CORRECT?
16 A. NINE OR SEVEN. I CAN'T TELL. PROBABLY NINE.
17 Q. WELL, PROBABLY NINE.
18 A. THAT'S CORRECT.
19 Q. YOU HAVE NO REASON TO BELIEVE SHE WAS IN THE HOSPITAL IN
20 '75. WE KNOW SHE WAS ADMITTED TO THE HOSPITAL IN '95,
21 CORRECT?
22 A. YES.
23 Q. AND, ONCE AGAIN, WE HAVE SIMILAR LIMITATIONS UNDER THE
24 FOLLOWING CARE AND TREATMENT IS DIRECTED WITH RESPECT TO THE
25 DECLARANT -- THAT IS MS. CRANE. AND WE HAVE A NUMBER OF
127
1 CATEGORIES CHECKED YES, CORRECT?
2 A. YES.
3 Q. AND WE HAVE A NUMBER OF CATEGORIES THAT ARE CHECKED NO.
4 A. CORRECT.
5 Q. TRUE?
6 A. YES.
7 Q. AND, SPECIFICALLY, UNDER SURGERY WHERE IT SAYS ADVISE
8 FAMILY, WE HAVE NO. CORRECT?
9 A. CORRECT.
10 Q. AND UNDER I.V. FLUIDS, WE HAVE NO. TRUE?
11 A. YES.
12 Q. AND THEN THERE'S A SIGNATURE AT THE BOTTOM OF THE
13 DOCUMENT AND THAT APPEARS TO BE THE SIGNATURE OF KAREN
14 BRINGHURST, CORRECT?
15 A. YES.
16 Q. DO YOU UNDERSTAND MS. BRINGHURST TO BE MS. CRANE'S
17 DAUGHTER?
18 A. YES.
19 Q. NOW, YOU TESTIFIED ABOUT THE MEDICAL RECORDS AND I THINK
20 IT'S IMPORTANT, FOR PURPOSES OF THIS CASE -- IT'S TRUE, IS
21 IT NOT, THAT IN THE MEDICAL RECORDS -- FOR EXAMPLE, AT SOME
22 POINT WE'RE GOING TO HAVE EXHIBITS AND THOSE MEDICAL RECORDS
23 ARE GOING TO BE IN BINDERS. THEY MAY NOT BE READ, BUT
24 THEY'LL BE BINDERS LIKE THIS. AND THEY'LL BE TABBED AND ONE
25 OF THE TABS IS GOING TO SAY, BASICALLY, A CATEGORY THAT SAYS
128
1 MEDICATION ADMINISTRATION RECORD.
2 A. YES.
3 Q. ARE YOU FAMILIAR WITH THAT? YOU REFER TO IT AS MARS,
4 RIGHT?
5 A. M-A-R.
6 Q. M-A-R. IN THE MAR IS A PLACE WHERE THE NURSES CHART THE
7 ACTUAL MEDICATION THAT HAS BEEN GIVEN TO THE PATIENT; ISN'T
8 THAT TRUE?
9 A. YES.
10 Q. AND -- AND -- AND IT'S TRUE, IS IT NOT, THAT SINCE
11 THAT'S THE ACTUAL PLACE WHERE THE NURSES CHART THAT, THAT
12 REALLY IS THE BEST EVIDENCE TO DETERMINE WHAT, IN FACT, THE
13 PATIENT RECEIVED; ISN'T THAT CORRECT?
14 A. BEST EVIDENCE? YEAH, IT'S -- IT'S ONE PIECE OF
15 EVIDENCE.
16 Q. SURE. YOU -- YOU SAID YOU COULD CORRELATE IT TO THE --
17 TO SOME OTHER PHARMACY RECORDS, BUT THE QUESTION REALLY IS,
18 THAT'S WHERE THE NURSES ARE SUPPOSED TO WRITE IT DOWN WHEN
19 THEY GIVE THE MEDICATION; ISN'T THAT CORRECT?
20 A. YES.
21 Q. AND THEN YOU ALSO TALKED ABOUT PROGRESS NOTES AND YOU
22 TALKED ABOUT -- I BELIEVE YOU SAID DOCTOR'S ORDERS.
23 A. YES.
24 Q. IT'S TRUE, IS IT NOT, THAT THERE'S A SECTION IN THE
25 MEDICAL RECORDS THAT IS SPECIFICALLY DOCTOR'S ORDERS; ISN'T
129
1 THAT CORRECT?
2 A. THE FORM THAT IS -- HAS DOCTOR'S ORDERS ON IT IS HALF,
3 LEFT SIDE OF A PIECE OF PAPER THAT IS DOCTOR'S
4 ORDERS/PROGRESS NOTES. THEY RESIDE SIDE-BY-SIDE IN THE
5 RECORD.
6 Q. OKAY. AND IN THESE PARTICULAR RECORDS, IT'S TRUE, IS IT
7 NOT, THAT THE WAY THEY WERE USED IS THAT DOCTORS ACTUALLY
8 HAD ORDERS GENERALLY IN ONE AREA.
9 A. YES.
10 Q. AND THEN, GENERALLY, IN ANOTHER AREA THEY WOULD HAVE
11 PROGRESS NOTES.
12 A. YES.
13 Q. AND, IN FACT, NOT ONLY WOULD THE DOCTORS HAVE PROGRESS
14 NOTES, BUT, FOR EXAMPLE, SOCIAL WORKERS WOULD WRITE IN
15 PROGRESS NOTES, TRUE?
16 A. YES.
17 Q. AND NURSES MAY WRITE IN PROGRESS NOTES, CORRECT?
18 A. YES.
19 Q. SO WHEN THESE FOLKS SEE THOSE EXHIBITS, THERE'S PROBABLY
20 GOING TO BE A DIFFERENCE BETWEEN WHERE THE ACTUAL ORDERS ARE
21 BY THE PHYSICIAN, GENERALLY, AND WHERE THE ACTUAL PROGRESS
22 NOTES IS WHERE THE DOCTORS OR SOMEBODY ELSE IS SORT OF
23 CHARTING THE PROGRESS OF THE PATIENT; ISN'T THAT CORRECT?
24 A. NOT NECESSARILY. ON THE SHEET OF PAPER THAT HAS THE
25 PHYSICIAN'S ORDERS, RIGHT NEXT TO IT IT SAYS "PROGRESS
130
1 NOTES." GENERALLY, WHEN A PHYSICIAN SEES A PATIENT IN THE
2 HOSPITAL THEY WRITE THEIR PROGRESS NOTE FOR THAT DAY AND THE
3 ORDER IS RIGHT NEXT TO IT ON THE OTHER SIDE OF THE PAGE.
4 Q. OKAY. DO YOU UNDERSTAND, BASED UPON WHAT YOU'VE DONE IN
5 THIS CASE, THAT WHEN THOSE ACTUAL MEDICAL RECORDS ARE HERE
6 THAT ARE GOING TO BE INTRODUCED INTO EVIDENCE THAT THERE'S
7 AN ACTUAL TAB AND A SECTION FOR DOCTOR'S ORDERS AND THERE'S
8 GOING TO BE AN ACTUAL TAB AND A SECTION FOR PROGRESS NOTES?
9 DO YOU UNDERSTAND THAT?
10 A. THAT COULD BE, YES.
11 MR. STIRBA: THAT'S ALL I HAVE. THANK YOU.
12 THE COURT: OKAY. ANY REDIRECT?
13 MR. WILSON: YES. AND MAYBE MR. STIRBA CAN SHOW ME
14 HOW TO HANDLE THE MACHINE.
15 THE COURT: I THINK MR. MAY'S GOING TO HAVE TO DO
16 THAT.
17 MR. STIRBA: MR. MAY.
18 MR. WILSON: CAN I TAKE YOUR EXHIBITS, PLEASE?
19 MR. STIRBA: SURE.
20 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
21 MR. WILSON: ALL RIGHT. THANK YOU.
22 REDIRECT EXAMINATION
23 BY MR. WILSON:
24 Q. JUST A COUPLE OF QUESTIONS. YOU'VE SEEN A BUNCH OF --
25 SEVERAL MEDICAL TREATMENT PLANS AND LIVING WILLS AND MEDICAL
131
1 DIRECTIVES. WHEN A PERSON IS ADMITTED TO THE HOSPITAL, ARE
2 THEY REQUIRED TO SIGN ANY NEW DOCUMENTS IN RESPECT TO THOSE
3 TYPES OF -- OF ADVANCE DIRECTIVES OR MEDICAL TREATMENT PLAN?
4 A. THEY ARE NOT REQUIRED TO DO THAT.
5 Q. OKAY. DOES THE HOSPITAL REQUEST THAT THEY BRING WITH
6 THEM ANY PRIOR MEDICAL TREATMENT PLANS OR LIVING WILLS AT
7 THE TIME OR ASK THEM IF THEY HAVE THOSE IN PLACE?
8 A. THE HOSPITAL IS REQUIRED TO ASK PATIENTS IF THEY HAVE AN
9 ADVANCE DIRECTIVE OR A LIVING WILL OR A DURABLE POWER OF
10 ATTORNEY. IF THEY HAVE ONE, WE REQUEST THAT THEY BRING IT
11 TO THE HOSPITAL IF THEY DON'T HAVE IT WITH THEM. IT IS THEN
12 MADE A PART OF THE MEDICAL RECORD.
13 IF THEY DO NOT HAVE ONE, WE OFFER THEM THE OPPORTUNITY
14 TO MAKE ONE. AND WE HAVE STAFF IN THE HOSPITAL THAT WILL
15 ASSIST WITH THAT PROCESS, IF THEY SO CHOOSE.
16 Q. OKAY.
17 THE WITNESS: TURN IT SO YOU CAN READ IT, LOOKING
18 AT IT.
19 THE COURT: IT'S THE OTHER WAY.
20 MR. WILSON: I GOT TO TURN IT THIS WAY, DON'T I?
21 ALL RIGHT.
22 Q. (BY MR. WILSON) THIS IS THE FIRST ITEM, I THINK, THAT
23 COUNSEL SHOWED TO YOU. WHAT DATE DOES THAT BEAR?
24 A. LOOKS LIKE THE 17TH OF JUNE, '95.
25 Q. OKAY. AND WHAT DATE DOES THE SIGNATURE BEAR DOWN ON THE
132
1 ATTENDING PHYSICIAN?
2 A. OH, THAT'S WHAT I WAS LOOKING AT. THAT LOOKS LIKE THE
3 17TH OF JUNE. THE ONE AT THE TOP SAYS THE 19TH OF JUNE.
4 Q. JUST -- JUST LOOKING DOWN HERE FURTHER WHERE YOU HAVE
5 THE SIGNATURE LINE -- MAYBE YOU COULD STEP UP TO THE BOARD.
6 A. RIGHT HERE?
7 Q. YES. DOES THAT LOOK LIKE JUNE --
8 A. THAT ONE LOOKS LIKE THE 17TH OF JUNE TO ME.
9 Q. OKAY.
10 A. OR THE 19TH.
11 Q. WOULD YOU LOOK UP IN THE PRINTING AT THE TOP? DOES THAT
12 SAY ANYTHING ABOUT THE 17TH DAY OF JULY?
13 A. YEAH, RIGHT HERE.
14 Q. OKAY. IN RESPECT TO YOUR REVIEW, THIS WAS -- YOU'VE
15 TESTIFIED THAT THIS APPEARED TO BE -- YOU BELIEVED IT TO BE
16 ONE OF THE RECORDS THAT WAS CONTAINED IN BARBARA POHLMAN --
17 OR I SHOULD SAY ELLEN ANDERSON'S MEDICAL RECORD; IS THAT
18 CORRECT?
19 A. YES.
20 Q. SO WOULD THIS BE SOMETHING THAT WAS BROUGHT FROM ANOTHER
21 ENTITY TO -- TO BE PLACED IN HER MEDICAL FILE?
22 A. YES.
23 Q. OKAY. YOU DON'T HAVE ANY PERSONAL KNOWLEDGE, DO YOU, AS
24 TO WHAT WAS HAPPENING TO ELLEN ANDERSON AT THE TIME THAT SHE
25 EXECUTED THAT DIRECTIVE OR HER DAUGHTER EXECUTED IT FOR HER?
133
1 A. NONE.
2 Q. SO YOU DON'T KNOW WHAT THE CIRCUMSTANCES WERE
3 SURROUND -- FOR THE EXECUTION OF THAT MEDICAL TREATMENT
4 PLAN.
5 A. YOU'RE RIGHT, I DON'T.
6 Q. OKAY. IN RESPECT TO THE NEXT EXHIBIT -- WELL, LET ME
7 SHOW YOU THE -- THE ONE THAT WAS SIGNED BY KAREN BRINGHURST,
8 DOWN AT THE BOTTOM?
9 A. YES.
10 Q. LET ME JUST MOVE IT DOWN HERE A WAYS. WHEN A
11 PHYSICIAN -- WHAT DATE DOES THAT BEAR AT THE TOP?
12 A. 12/28/95.
13 Q. AND WHAT DATE DOES IT BEAR BY THE PHYSICIAN'S SIGNATURE?
14 A. 12/30/95.
15 Q. OKAY. DO YOU HAVE ANY INFORMATION AS TO WHEN THAT
16 PARTICULAR DOCUMENT WAS FILLED OUT?
17 A. I WOULD ASSUME IT WAS --
18 MR. STIRBA: WELL, I'M GOING TO OBJECT, YOUR HONOR.
19 IT'S -- HER ASSUMPTION IS IRRELEVANT. SHE EITHER KNOWS OR
20 SHE DOESN'T, AND I DON'T THINK THERE'S ADEQUATE FOUNDATION
21 THAT SHE WOULD.
22 MR. WILSON: OKAY.
23 Q. (BY MR. WILSON) LET ME ASK YOU THIS. WHEN THE -- WHEN
24 THE PHYSICIAN FILLS THIS OUT, IS HE REQUIRED TO FILL IN THE
25 BLANKS?
134
1 A. I WOULD EXPECT SO.
2 Q. IS THERE ANYTHING THERE AS TO -- A CHECK MARK OR
3 ANYTHING AS TO WHO IT WAS SIGNED BY?
4 A. I'M SORRY, I DON'T FOLLOW YOU.
5 Q. WELL, IT HAS SEVERAL BLANKS. FIRST OF ALL, THE
6 PATIENT'S NAME IS BLANK.
7 A. YES.
8 Q. THE PHYSICIAN'S NAME IS -- IS BLANK.
9 A. CORRECT.
10 Q. THERE'S NOTHING INDICATING WHAT KIND OF DISEASE OR
11 ILLNESS THIS PERSON IS -- IS SUFFERING FROM, IS THERE?
12 A. YEAH, YOU'RE RIGHT.
13 Q. AND IT DOESN'T INDICATE WHETHER IT'S DIRECTED BY THE
14 DECLARANT OR WHETHER IT'S DIRECTED BY SOMEBODY RELATED TO
15 THE DECLARANT, DOES IT?
16 A. RIGHT.
17 Q. WHEN THOSE ITEMS ARE FILLED OUT AT THE HOSPITAL, DO YOU
18 KNOW WHETHER OR NOT THEY'RE -- ARE THEY GIVEN ASSISTANCE IN
19 FILLING THOSE ITEMS OUT, THOSE PARTICULAR TYPES OF MEDICAL
20 TREATMENT PLANS? AGAIN, I'LL SHOW YOU THE -- THE DOCUMENT.
21 A. I CAN'T TESTIFY TO WHAT THEY DID THEN.
22 Q. OKAY. IS THERE ANY POLICY OR PROCEDURE AS TO HOW THOSE
23 SHOULD BE PRESENTED TO -- TO THE PATIENT?
24 A. NOT THAT I'M AWARE OF, BUT --
25 Q. OKAY. SHOW YOU THE DOCUMENT THAT YOU PREVIOUSLY
135
1 TESTIFIED TO. YOU THINK IT WAS PART OF THE MEDICAL RECORD?
2 A. YES.
3 Q. AND THAT APPEARS TO HAVE THE SIGNATURE OF MERLIN LARSEN;
4 IS THAT CORRECT?
5 A. YES.
6 Q. DOES THAT PARTICULAR MEDICAL TREATMENT PLAN, IS IT A
7 FORM FROM A DAVIS HOSPITAL?
8 A. THERE'S NO WAY FOR ME TO TELL.
9 Q. OKAY.
10 A. IT'S NOT IDENTIFIED AS DAVIS HOSPITAL.
11 Q. SHOW YOU THE SECOND PART OF -- EXCUSE ME. IS THERE ANY
12 INDICATION ON THAT DOCUMENT THAT IT BEARS A DIFFERENT DATE
13 THAN SEPTEMBER THE 19TH, 1985?
14 A. NO.
15 Q. OKAY. DO YOU KNOW A DR. SUMKO?
16 A. NO, I DO NOT.
17 Q. OKAY.
18 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
19 HONOR.
20 THE COURT: OKAY. ANYTHING FURTHER OF THIS
21 WITNESS?
22 MR. STIRBA: NO, YOUR HONOR. THANK YOU.
23 THE COURT: MAY THIS WITNESS BE EXCUSED?
24 MR. STIRBA: I -- I MAY HAVE TO RECALL HER, YOUR
25 HONOR, SO --
136
1 THE COURT: OKAY.
2 MR. STIRBA: -- WITH THAT CLARIFICATION.
3 MR. WILSON: YOUR HONOR, AND I -- I'D LIKE TO HAVE
4 JUST A MINUTE TO TALK WITH HER. COULD I JUST SPEAK WITH HER
5 AS SHE STEPS DOWN?
6 THE COURT: YES. WELL, IN FACT, MAYBE WHAT WE
7 COULD DO IS JUST LET THE JURY GO FOR THEIR BREAK AND THEN
8 YOU COULD HAVE AN OPPORTUNITY TO TALK TO HER.
9 MR. WILSON: THANK YOU, YOUR HONOR.
10 THE COURT: YOU COULD STILL STEP DOWN, IF YOU'D
11 LIKE.
12 OKAY. LADIES AND GENTLEMEN, WE'LL TAKE A BREAK UNTIL
13 2:30. AND AS I MENTIONED TO YOU BEFORE, DO NOT CONVERSE
14 AMONG YOURSELVES OR -- OR WITH ANYONE, OR ALLOW YOURSELVES
15 TO BE ADDRESSED BY ANY OTHER -- EXCUSE ME, DON'T LEAVE UNTIL
16 I'M -- I'M STILL TALKING. THE ONLY THING I SAY IS WHILE I'M
17 TALKING -- YEAH, DON'T LEAVE.
18 IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR TO
19 CONVERSE WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY
20 OTHER PERSON ON ANY SUBJECT OF THIS TRIAL. AND IT'S YOUR
21 DUTY NOT TO FORM OR EXPRESS AN OPINION THEREON UNTIL THIS
22 CASE IS FINALLY SUBMITTED TO YOU.
23 AND SO WE'LL SEE YOU BACK AT 2:30.
24 (WHEREUPON, THE JURY LEAVES THE COURTROOM.)
25 THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT
137
1 THE JURY HAS LEFT.
2 DID YOU SAY YOU HAD ONE MORE WITNESS OR WHAT WERE YOU
3 GOING TO DO TODAY?
4 MS. BARLOW: WE DO, YOUR HONOR. AND, IN FACT, I
5 TOLD HER TO BE HERE AT 2:30 SO --
6 THE COURT: OKAY.
7 MS. BARLOW: -- AS SOON AS SHE WALKS IN --
8 THE COURT: AND HOW LONG DO YOU THINK THAT WITNESS
9 IS GOING TO BE?
10 MS. BARLOW: I DON'T THINK SHE'S GOING TO TAKE
11 LONG.
12 THE COURT: OKAY. AND IS THAT THE ONLY WITNESS
13 YOU'RE GOING TO HAVE?
14 MR. WILSON: THAT IS, YOUR HONOR.
15 THE COURT: OKAY. ALL RIGHT. THEN WE'LL BE BACK
16 AT 2:30.
17 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
18 PROCEEDINGS RESUME IN THE PRESENCE OF THE JURY, AS FOLLOWS:)
19 THE COURT: LADIES AND GENTLEMEN, BEFORE WE GO ON,
20 IT WAS JUST BROUGHT TO MY ATTENTION -- AND I DIDN'T REALIZE
21 THIS BEFORE -- BUT IF YOU HAVE A PAGER OR A CELL PHONE, I
22 JUST REALIZED -- SOMEBODY SHOWED ME DURING A BREAK THAT THE
23 PAGERS AND THE CELL PHONES ALSO CONTAIN NEWS AND YOU SEE
24 NEWS ON SOME PEOPLE'S PAGERS AND CELL PHONES. AND THIS
25 TRIAL IS NOW ON PAGERS AND CELL PHONES.
138
1 SO ANOTHER THING YOU DON'T LOOK AT IS YOUR PAGERS OR
2 CELL PHONES. I MEAN, YOU CAN LOOK AT THEM FOR NUMBERS.
3 SEE, THIS MEDIA IS JUST TRYING TO GET TO YOU, SO I DON'T
4 WANT THEM TO GET TO YOU. SO PAGERS, CELL PHONE, E-MAILS,
5 ANYTHING THAT HAS NEWS THINGS, YOU KNOW, PLEASE, PLEASE, DO
6 NOT LOOK AT THAT.
7 OKAY. MS. BARLOW, WOULD YOU LIKE TO CALL YOUR NEXT
8 WITNESS?
9 MS. BARLOW: WE'RE ENTIRELY TOO WIRED IN THIS
10 WORLD, AREN'T WE, YOUR HONOR?
11 THE COURT: I KNOW.
12 MS. BARLOW: OUR NEXT WITNESS IS SHEILA MOORE.
13 THE COURT: OKAY. IF YOU'D COME FORWARD AND BE
14 SWORN.
15 MS. BARLOW: YOUR HONOR, ARE WE EVEN USING THESE?
16 THE COURT: IT IS SUPPOSED TO AMPLIFY, BUT I DON'T
17 KNOW WHAT IT'S DOING SO --
18 MS. BARLOW: OKAY.
19 SHEILA MOORE,
20 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
21 AS FOLLOWS:
22 DIRECT EXAMINATION
23 BY MS. BARLOW:
24 Q. WOULD YOU PLEASE STATE YOUR NAME AND SPELL IT, FOR THE
25 RECORD?
139
1 A. SHEILA MOORE, S-H-E-I-L-A M-O-O-R-E.
2 Q. AND WHAT CITY DO YOU LIVE IN, MS. MOORE?
3 A. LAYTON, UTAH.
4 Q. WHAT IS YOUR OCCUPATION?
5 A. I'M A REGISTERED NURSE.
6 Q. HOW LONG HAVE YOU BEEN A REGISTERED NURSE?
7 A. SINCE 1979.
8 Q. WHAT TRAINING DID YOU RECEIVE TO BE A REGISTERED NURSE?
9 A. I GOT MY ASSOCIATE'S DEGREE AT B.Y.U. IN NURSING.
10 Q. TO BE AN R.N. THEN, A REGISTERED NURSE --
11 A. RIGHT.
12 Q. -- YOU DON'T NECESSARILY NEED A BACHELOR DEGREE; IS THAT
13 CORRECT?
14 A. NO.
15 Q. THERE WILL BE DIFFERENT KINDS OF NURSES THAT WE'LL BE
16 TALKING ABOUT OVER THE COURSE OF THE NEXT LITTLE WHILE. ON
17 THE HIERARCHY, WHERE IS THE REGISTERED NURSE IN -- IN THE
18 HIERARCHY OF SAY CERTIFIED NURSING ASSISTANT, LICENSED
19 PRACTICAL NURSE, THAT SORT OF THING?
20 A. WELL, IT DEPENDS ON WHAT YOU'RE HIRED FOR.
21 Q. UH-HUH.
22 A. I WAS UNDER THE D.O.N. AT DAVIS HOSPITAL.
23 Q. WHAT -- WHAT'S THE D.O.N.?
24 A. THE DIRECTOR OF NURSING, AND THEN I WAS THE HEAD NURSE.
25 AND THEN THE OTHER REGISTERED NURSES WOULD COME UNDER ME AND
140
1 THEN THE C.N.A.'S WOULD COME UNDER THEM.
2 Q. SO YOU WERE THE HEAD NURSE FOR WHAT, THE UNIT?
3 A. THE UNIT.
4 Q. THE GEROPSYCH UNIT?
5 A. RIGHT.
6 Q. AS A REGISTERED NURSE, ARE YOU ALLOWED TO ADMINISTER
7 MEDICATIONS?
8 A. YES.
9 Q. ARE YOU -- DO YOU GET TO ORDER ANY MEDICATIONS?
10 A. NO.
11 Q. ARE ANY NURSES ALLOWED TO ORDER MEDICATIONS?
12 A. A.P.R.N.'S ARE ALLOWED TO, WHICH ARE ADVANCED PRAC --
13 PRACTITIONER NURSING, BUT THEY'RE UNDER THE DIRECTIONS OF
14 THE M.D., OR THE DOCTORS.
15 Q. SO IS THAT WHAT'S COMMONLY CALLED A NURSE PRACTITIONER?
16 A. RIGHT.
17 Q. SO A NURSE PRACTITIONER CAN ORDER THE MEDS, BUT ONLY
18 UNDER THE --
19 A. IF THEY -- THEY HAVE TO GET THE EDUCATION AND THEY HAVE
20 TO PASS A BOARD TO BE ABLE TO DO THAT.
21 Q. OKAY.
22 A. THEY HAVE TO BE LICENSED TO BE ABLE TO PRESCRIBE.
23 Q. AND YOU DON'T HAVE THAT --
24 A. NO, I DON'T.
25 Q. -- THAT CERTIFICATION. SO IN 1979 YOU BECAME AN R.N.
141
1 WHERE DID YOU WORK AFTER THAT?
2 A. I STARTED AT COTTONWOOD HOSPITAL UP UNTIL -- ON A
3 SURGICAL UNIT, AND THEN I WENT TO THE OPERATING ROOM IN '83.
4 AND THEN '84 I MOVED TO MISSISSIPPI FOR A YEAR AND WORKED IN
5 THE OPERATING ROOM IN MISSISSIPPI. AND THEN I WORKED HALF
6 OF THE YEAR IN THE OPERATING ROOM IN EVANSTON, WYOMING; AND
7 THEN AT F.H.P. AND THEN I STARTED AT BENCHMARK REGIONAL
8 HOSPITAL, WHICH IS A PSYCHIATRIC FACILITY, IN '87 -- 1987.
9 Q. IS THERE ANY DIFFERENCE IN TRAINING FOR A -- A SURGICAL
10 OR -- OR EMERGENCY ROOM NURSE AS THERE IS FOR A PSYCH UNIT
11 NURSE?
12 A. NO. YOU CAN -- I DIDN'T NEED ANY -- I DIDN'T HAVE ANY
13 EXPERIENCE, BUT I DID GET ON-THE-JOB TRAINING FOR EACH ONE
14 OF THEM.
15 Q. DID YOU HAVE OCCASION TO JOIN THE DAVIS NORTH
16 HOSPITAL --
17 A. YES.
18 Q. -- STAFF. WHEN WAS THAT?
19 A. THAT WAS IN 1994.
20 Q. OKAY. AND WHAT WAS YOUR PURPOSE IN MOVING TO THE DAVIS
21 NORTH HOSPITAL?
22 A. I WAS HIRED AS THE HEAD NURSE TO START UP THE GEROPSYCH
23 UNIT -- GERIATRIC.
24 Q. SO -- SO YOU WERE THE FIRST HEAD NURSE?
25 A. I WAS.
142
1 Q. DID YOU HAVE ANY HAND IN HIRING ANY OF THE OTHER NURSES?
2 A. NO. NOT IN THE BEGINNING, NO.
3 Q. WHO -- WHO HIRED THE NURSES TO BEGIN WITH?
4 A. KAREN CHATELAIN. SHE WAS THE DIRECTOR OF NURSING OF
5 DAVIS HOSPITAL.
6 Q. AT THE TIME THAT YOU WERE HIRED, WHO WAS IN CHARGE OF
7 THE GEROPSYCH UNIT?
8 A. WHAT DO YOU MEAN?
9 Q. YOU WERE HEAD OF NURSING.
10 A. RIGHT.
11 Q. WERE YOU OVER THE WHOLE UNIT?
12 A. NO. HOW -- HOW IT STARTED WAS DAVIS HOSPITAL CONTRACTED
13 WITH HORIZON WHICH SPECIALIZES IN PSYCHIATRY, AND THEY WERE
14 OVER THE CLINICAL -- THEY WERE SPECIALIZING IN THE CLINICAL
15 PSYCHOL -- OR PSYCHIATRIC PART OF IT, WHERE DAVIS HOSPITAL
16 WAS OVER THE NURSING PART OF IT.
17 Q. WHEN YOU SAY CLINICAL, I MEAN, THESE ARE MEDICAL TERMS
18 THAT WE PROBABLY NEED TO EXPLAIN.
19 A. OKAY. HORIZON HIRED THE -- THE DOCTOR WAS HIRED BY
20 HORIZON; THE PROGRAM DIRECTOR, WHO WAS OVER THE UNIT, WAS
21 HIRED BY HORIZON; THE COMMUNITY COORDINATOR WAS HIRED BY
22 HORIZON; THE SOCIAL WORKER WAS HIRED BY HORIZON.
23 Q. BUT THE NURSES WERE HIRED --
24 A. BUT THE NURSES WERE HIRED BY DAVIS HOSPITAL.
25 Q. WHAT WAS THERE ABOUT THIS UNIT THAT ATTRACTED YOU TO --
143
1 TO APPLY FOR IT?
2 A. I SAW -- I DIDN'T WORK MUCH WITH GERIATRICS BEFORE THIS
3 TIME, I WAS ADOLESCENT PSYCH.
4 Q. UH-HUH.
5 A. AND I REALLY WANTED TO LEARN SOMETHING DIFFERENT. AND I
6 HAD BEEN ACTING AS THE HEAD NURSE DOWN AT BENCHMARK HOSPITAL
7 AND I KIND OF WANTED A LEADERSHIP ROLE. AND THIS CAME UP
8 AND, I DON'T KNOW, IT JUST INTERESTED ME SO I APPLIED FOR
9 IT.
10 Q. WHAT DOES GERIATRIC MEAN?
11 A. OLDER PATIENTS. WE TOOK 65 AND ABOVE, SOMETIMES WE'D GO
12 DOWN TO 55 AND OLDER.
13 Q. AND WHAT WERE THE MAIN PROBLEMS THAT THESE PEOPLE HAD?
14 A. ON THAT PARTICULAR UNIT IT WAS PSYCHIATRIC PROBLEMS IS
15 WHAT WE WOULD ADMIT THEM FOR.
16 Q. WERE THERE ANY OTHER GEROPSYCH UNITS IN THE AREA?
17 A. NOT THAT I KNOW OF. IN FACT, I THINK THAT THAT'S WHY
18 DAVIS HOSPITAL WAS SO INTERESTED IN GETTING IT STARTED.
19 WITHIN THE WESTERN STATES I DON'T THINK THERE WAS ANY
20 GEROPSYCH UNITS.
21 Q. WHO WAS THE PROGRAM DIRECTOR WHEN YOU CAME ABOARD?
22 A. THERE WAS NONE.
23 Q. OKAY.
24 A. THERE WASN'T -- KEITH PERRY WAS THE CLINICAL -- OR THE
25 COORDINATOR THAT WENT OUT AND HE WAS -- SO HE WORE BOTH HATS
144
1 AS THE DIRECTOR AND THE COORDINATOR TO GO OUT, CLINICAL
2 COORDINATOR.
3 Q. WHEN YOU SAY THE COORDINATOR WENT OUT, WHAT DID THE
4 COORDINATOR DO?
5 A. HE WENT OUT AND HE EDUCATED THE PUBLIC, THE NURSING
6 HOMES, LET THEM KNOW THAT WE WERE AVAILABLE. HE WENT OUT
7 AND DID INTAKES IF -- LET'S SAY A NURSING HOME CALLED AND
8 SAID THAT THEY HAVE, YOU KNOW, A PATIENT THAT'S AGITATED AND
9 ACTING OUT OR THEIR BEHAVIOR'S CHANGED. KEITH WOULD GO
10 EVALUATE THEM AND SEE IF THEY WERE APPROPRIATE FOR OUR UNIT.
11 Q. OKAY. YOU WERE THERE WHEN THE UNIT WAS SET UP THEN?
12 A. RIGHT.
13 Q. CAN YOU JUST BRIEFLY DESCRIBE THE PHYSICAL LAYOUT OF THE
14 UNIT?
15 A. IT WAS A TEN-BED UNIT, TWO PATIENTS TO A ROOM. THEY HAD
16 A LARGE DAY ROOM, A SMALL DAY ROOM, THE NURSING STATION.
17 THEY HAD ACCESS TO A CLEAN AND DIRTY UTILITY ROOM WHERE THEY
18 GOT THEIR SUPPLIES AND DISCARDED THEIR DIRTY ITEMS.
19 Q. UH-HUH. OKAY. WHAT -- WE'VE HEARD TESTIMONY THAT THERE
20 WERE LOCKED DOORS AT EITHER END OF THE UNIT.
21 A. RIGHT.
22 Q. DO YOU KNOW WHAT WAS ON THE OTHER SIDE OF THOSE LOCKED
23 DOORS IN THE HOSPITAL?
24 A. YES. ON ONE SIDE THERE WAS A SKILLED NURSING FACILITY,
25 AND ON THE OTHER SIDE IT WAS PEDIATRICS/TELEMETRY UNIT.
145
1 Q. WE'VE HEARD THE PHRASE SNF THIS MORNING.
2 A. THAT'S THE SKILLED NURSING.
3 Q. OH, SO SNF IS S-N-F --
4 A. RIGHT.
5 Q. -- FOR SKILLED NURSING FACILITY?
6 A. RIGHT.
7 Q. OKAY. I THOUGHT WE'D BETTER CLARIFY --
8 A. YEAH.
9 Q. -- THAT'S A SNF.
10 OKAY. WERE YOU THERE THEN WHEN THE FIRST PATIENTS CAME
11 IN?
12 A. YES.
13 Q. BY THAT TIME, HAD A DOCTOR BEEN -- OR A PSYCHIATRIST
14 BEEN HIRED?
15 A. YES.
16 Q. WHO -- WHO WAS THE FIRST PSYCHIATRIST ON THE UNIT?
17 A. DR. JENSEN.
18 Q. WHAT WAS HIS RESPONSIBILITY IN RELATIONSHIP TO THE
19 PROGRAM DIRECTOR? DO YOU KNOW?
20 A. I BELIEVE -- AND I'M NOT SURE -- I THINK THAT THE
21 PROGRAM DIRECTOR WAS OVER HIM. I THINK THAT THE PROGRAM
22 DIRECTOR WAS OVER EVERYONE THAT HORIZON HIRED FOR THAT
23 PARTICULAR UNIT.
24 Q. WHO WAS THE PROGRAM -- FIRST PROGRAM DIRECTOR?
25 A. THEY BROUGHT IN A KID FROM COLORADO NAMED DURRAND.
146
1 Q. UH-HUH.
2 A. AND I CAN'T REMEMBER HIS LAST NAME -- FOR MAYBE TWO,
3 THREE WEEKS. AND THEN I THINK THEY HIRED PAM CLARK AND SHE
4 LASTED FOR MAYBE A MONTH OR TWO, AND THEN THEY HIRED TODD
5 CHAMBERS.
6 Q. OKAY. DURING LATE '95, EARLY '96, WHO WAS THE PROGRAM
7 DIRECTOR?
8 A. TODD CHAMBERS.
9 MR. STIRBA: YOUR HONOR -- YOUR HONOR, I'M GOING TO
10 OBJECT. LACK OF FOUNDATION.
11 MS. BARLOW: WELL --
12 MR. STIRBA: NO INDICATION SHE WAS WORKING THERE AT
13 THE TIME.
14 THE COURT: DO YOU WANT TO LAY A FOUNDATION?
15 MS. BARLOW: OKAY. I'LL -- I'LL BE HAPPY TO DO
16 THAT.
17 Q. (BY MS. BARLOW) SO YOU STARTED WITH THE UNIT IN 1994.
18 A. RIGHT.
19 Q. OKAY. LITERALLY WITH THE UNIT IN 1994.
20 A. YES.
21 Q. WHEN DID YOU LEAVE THE UNIT?
22 A. I LEFT IT LATTER PART OF NOVEMBER, FIRST PART OF
23 DECEMBER OF '95.
24 Q. WHEN YOU LEFT THE UNIT, WHO WAS IN CHARGE OF THE UNIT?
25 A. TODD CHAMBERS.
147
1 Q. THANK YOU. YOU INDICATED THAT THESE WERE
2 PREDOMINANTLY -- WELL, THEY WERE PSYCHIATRIC PATIENTS.
3 A. RIGHT.
4 Q. IS THAT CORRECT. WHAT KIND OF PSYCHIATRIC PROBLEMS WERE
5 PEOPLE COMING IN WITH?
6 A. TO BE QUALIFIED FOR THE UNIT THEY WOULD HAVE TO HAVE AN
7 ACUTE -- ACUTE PSYCHIATRIC PROBLEM, WHICH MEANT THAT IT WAS
8 SOMETHING THAT WE COULD TREAT AND THEY COULD GET BETTER WITH
9 IT.
10 Q. OKAY. WERE THERE OTHER PSYCHIATRIC PROBLEMS THAT THESE
11 PEOPLE HAD THAT WERE NOT ACUTE?
12 A. SOME OF THEM -- SOME OF THEM WOULD COME IN, LET'S SAY,
13 WITH DEMENTIA.
14 Q. UH-HUH.
15 A. AND DEMENTIA IS A DISEASE THAT YOU CAN'T CURE AND IT
16 CANNOT GET BETTER, BUT THEY WOULD COME IN WITH ACUTE
17 AGITATION-AGGRESSION, HITTING OUT, KICKING, THINGS LIKE
18 THAT, ATTACKING PEOPLE. SO YEAH, THEY WOULD COME IN WITH
19 CHRONIC PSYCHIATRIC DIAGNOSES: DEMENTIA, ALZHEIMER'S.
20 Q. BUT YOU WEREN'T INTENDING TO TRY TO FIX OR CURE THAT.
21 A. NO. NO.
22 Q. YOU WERE JUST TRYING TO DEAL WITH --
23 A. THE ACUTE PART.
24 Q. -- THE ACUTE PART. WAS THERE ANYTHING ABOUT MEDICATIONS
25 THAT MIGHT BRING SOMEBODY ON TO THE UNIT?
148
1 A. MOST OF THE TIME WHAT WE WOULD DO IS BRING THEM ON TO
2 REGULATE THEM ON SOMETHING THAT WOULD CONTROL THE ACUTE
3 PHASE THAT THEY WERE HAVING. SO YEAH.
4 Q. HAVE YOU EVER HEARD THE TERM DRUG HOLIDAY?
5 A. YES.
6 Q. AND WHO -- DID ANYONE IN THIS UNIT EVER USE THAT TERM
7 WHILE YOU WERE THERE?
8 A. NOT THAT -- I CAN'T REMEMBER. I CAN'T REMEMBER IF THEY
9 COMPLETELY TOOK THEM OFF OF THEIR MEDS AND GAVE THEM A
10 BREAK. I CANNOT REMEMBER.
11 Q. OKAY. I RECOGNIZE A LOT OF TIME HAS PASSED. WHO WOULD
12 MAKE THE DETERMINATION ABOUT WHAT MEDICATIONS THESE PEOPLE
13 WERE GOING TO GET?
14 A. THE DOCTOR.
15 Q. WHO WAS THE -- THE FIRST PSYCHIATRIST?
16 A. DR. JENSEN.
17 Q. DR. JENSEN. DID THERE COME A POINT WHERE DR. JENSEN NO
18 LONGER WAS WITH THE UNIT?
19 A. YES.
20 Q. DO YOU RECALL WHEN THAT WAS?
21 A. I'M THINKING THAT IT WAS AROUND AUGUST -- JULY,
22 AUGUST. HE WAS KIND OF PHASING OUT SO HE'D COME MAYBE ONE
23 DAY, TWO DAYS -- OF '95.
24 Q. OKAY. WHO BECAME THE PSYCHIATRIST -- YOU KNOW, PHASED
25 IN AND THEN BECAME FULL TIME AFTER DR. JENSEN LEFT?
149
1 A. DR. WEITZEL.
2 Q. AND THE DR. WEITZEL THAT YOU'RE REFERRING TO, IS HE IN
3 THE COURTROOM TODAY?
4 A. YES, HE IS.
5 Q. THE DEFENDANT IN THIS MATTER?
6 A. YES.
7 Q. DID YOU SEE A DIFFERENCE IN THE WAY DR. JENSEN TREATED
8 THESE PATIENTS AS OPPOSED TO THE WAY DR. WEITZEL TREATED
9 THESE PATIENTS?
10 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR.
11 IRRELEVANT, LACK OF FOUNDATION, AND VAGUE AND AMBIGUOUS.
12 THE COURT: IF YOU'D LIKE TO LAY A FOUNDATION AS TO
13 THE TIME PERIOD SHE OBSERVED DR. WEITZEL.
14 Q. (BY MS. BARLOW) WELL, FIRST, WHEN DID YOU OBSERVE
15 DR. JENSEN?
16 A. WHEN WE FIRST OPENED THE UNIT.
17 Q. AND THEN DR. WEITZEL CAME WHEN?
18 A. I DON'T KNOW WHEN HE CAME. I -- I CANNOT REMEMBER WHEN
19 DR. WEITZEL STARTED.
20 Q. WAS THERE EVER ANY GAP WHEN THERE WAS NO PSYCHIATRIST
21 FOR THE UNIT?
22 A. NO.
23 Q. YOU SAID SOMETHING ABOUT THERE BEING A PHASE-IN.
24 A. THERE ALWAYS HAD TO BE A DOCTOR THAT ADMITTED PATIENTS
25 TO THE UNIT. IF THERE WAS NO DOCTOR THEN THERE WAS NO
150
1 PATIENTS BECAUSE THE DOCTOR OVERSEES THE PATIENT'S CARE.
2 Q. SO LET'S SAY THE FIRST PART OF 1995 WHEN DR. JENSEN WAS
3 THERE --
4 A. RIGHT.
5 Q. -- AND THEN DURING THE PHASE-IN PERIOD WHEN DR. WEITZEL
6 PHASED IN, AND THEN THERE -- WAS THERE A TIME BEFORE YOU
7 LEFT WHEN DR. WEITZEL WAS THE ONLY PSYCHIATRIST ON THE UNIT?
8 A. YES.
9 Q. ABOUT HOW LONG WAS THAT?
10 A. PROBABLY ABOUT FOUR MONTHS.
11 Q. DURING THAT TIME FRAME, SAY THE FOUR MONTHS BEFORE THE
12 PHASE-IN, DURING THE PHASE-IN, AND THEN THE FOUR MONTHS
13 AFTER THE PHASE-IN --
14 A. UH-HUH.
15 Q. -- DID YOU HAVE OCCASION TO SEE HOW EITHER DOCTOR
16 TREATED THE PATIENTS?
17 A. AS --
18 MR. STIRBA: YOUR HONOR, COULD WE STILL HAVE SOME
19 FOUNDATION? I'M NOT SURE WHAT TIME PERIOD WE'RE TALKING
20 ABOUT.
21 MS. BARLOW: YOUR HONOR, I JUST INDICATED 1995,
22 FOUR MONTHS DURING THE -- THEN THE PHASE-IN, THEN THE FOUR
23 MONTHS AFTER --
24 THE COURT: WHY -- WHY DON'T WE JUST MAYBE INSTEAD
25 OF SAYING THE FOUR MONTHS BEFORE PHASE-IN, JUST SAY WHEN
151
1 THAT BEGAN, LIKE WHAT PART OF 1995 THAT BEGAN, I THINK IS
2 WHAT HE'S TALKING ABOUT.
3 MS. BARLOW: I WILL DO THAT.
4 Q. (BY MS. BARLOW) YOU LEFT IN LATE NOVEMBER.
5 A. RIGHT.
6 Q. LET'S GO BACK EIGHT MONTHS PRIOR TO THAT, WHAT -- THAT'S
7 THE 11TH MONTH, SO LET'S SAY, OH, APRIL OR MAY --
8 A. OKAY.
9 Q. -- OF 1995. LET'S TALK ABOUT THE TIME PERIOD FROM SAY
10 APRIL TO THE TIME YOU LEFT IN 1995.
11 A. OKAY.
12 Q. DID YOU HAVE OCCASION DURING THAT TIME PERIOD TO SEE THE
13 DIFFERENCE IN THE WAY THESE TWO DOCTORS DEALT WITH PATIENTS?
14 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR. LACK
15 OF FOUNDATION. MAY I VOIR DIRE?
16 THE COURT: YES.
17 VOIR DIRE EXAMINATION
18 BY MR. STIRBA:
19 Q. MS. MOORE, YOUR POSITION AS HEAD NURSE WAS AN
20 ADMINISTRATIVE POSITION, WAS IT NOT?
21 A. YES, SIR.
22 Q. THE FACT OF THE MATTER IS, DURING THE TIME PERIOD THAT
23 WE'RE TALKING ABOUT, YOU WERE NOT HANDS-ON AND PROVIDING
24 PATIENT CARE IN THE GEROPSYCHIATRIC UNIT, WERE YOU?
25 A. YES, I WAS.
152
1 Q. FACT OF THE MATTER IS, YOU WERE THERE ONLY PART-TIME,
2 ISN'T THAT TRUE?
3 A. I WAS THERE TWO DAYS A WEEK.
4 MR. STIRBA: WELL, I'LL RENEW MY OBJECTION, YOUR
5 HONOR.
6 MS. BARLOW: YOUR HONOR, SHE --
7 THE COURT: OVERRULED.
8 MS. BARLOW: THANK YOU.
9 DIRECT EXAMINATION, CONT'D
10 BY MS. BARLOW:
11 Q. DURING THE TIME -- THE TWO DAYS A WEEK THAT YOU WERE
12 THERE, YOU WERE DOING HANDS-ON CARE, DID YOU HAVE OCCASION
13 TO SEE THE DIFFERENCE -- ANY DIFFERENCE, NOT ASSUMING THERE
14 WAS ONE, BUT WAS THERE ANY DIFFERENCE BETWEEN THE WAY
15 DR. JENSEN AND DR. WEITZEL TREATED PATIENTS?
16 A. YES.
17 MR. STIRBA: OBJECTION. RELEVANCY, YOUR HONOR.
18 THE COURT: OKAY. WHAT DO YOU CLAIM THE RELEVANCY?
19 MS. BARLOW: YOUR HONOR, THIS -- THIS WILL ALL TIE
20 IN AS WE GO ON. I MEAN, THIS IS THE SECOND WITNESS THAT WE
21 HAVE. I MEAN, I -- IT SEEMS A LITTLE -- YOU'VE GOT TO START
22 SOMEWHERE WITH SOME OF THIS TESTIMONY AND THIS IS WHERE I
23 WANT TO START WITH SOME OF THIS TESTIMONY. IT WILL BE TIED
24 IN AS OTHER WITNESSES COME IN.
25 THE COURT: OKAY. MR. STIRBA?
153
1 MR. STIRBA: WELL, THE DIFFERENCE BETWEEN DOCTORS
2 IS NOT RELEVANT, AND MUCH LESS THE TIME PERIOD IS NOT
3 RELEVANT. SHE WASN'T EVEN THERE DURING THE PERTINENT TIME
4 PERIOD. THIS IS NOT A QUESTION OF -- OF PERCEPTION BETWEEN
5 HOW DOCTORS WORK. SHE HAS NO FACTS RELATING TO THE ISSUES
6 BEFORE THE COURT. IT'S TOTALLY IRRELEVANT.
7 MS. BARLOW: YOUR HONOR, IT GOES TO THE MENTAL
8 STATE.
9 THE COURT: WHY DON'T -- WHY DON'T WE DO THIS.
10 LADIES AND GENTLEMEN OF THE JURY, THIS IS ONE OF THOSE TIMES
11 THAT I SAID WE WOULDN'T TRY TO HAVE VERY MANY OF, BUT
12 IT'S -- THERE'S A LEGAL ISSUE THAT NEEDS TO BE DISCUSSED, SO
13 DON'T GO HOME RIGHT NOW.
14 AND IT'S YOUR DUTY WHILE YOU'RE ON THIS BREAK NOT TO
15 CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW
16 ANY -- ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON
17 ON THE SUBJECT OF THIS TRIAL. AND IT'S YOUR DUTY, ALSO, NOT
18 TO FORM OR EXPRESS AN OPINION THEREON UNTIL THE CASE IS
19 FINALLY SUBMITTED TO YOU.
20 SO IF YOU WOULD JUST TAKE A BREAK AND THEN THE BAILIFF
21 WILL HAVE YOU COME BACK.
22 (WHEREUPON, AT THIS TIME THE JURY LEAVES THE COURTROOM,
23 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
24 THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT
25 THE JURY HAS GONE OUT AND WE'RE -- OKAY. WHAT IS THE -- I
154
1 DON'T KNOW WHO'S NEXT TO SPEAK TO THIS ISSUE. MAYBE
2 MS. BARLOW, IF YOU'D LIKE TO SPEAK?
3 MS. BARLOW: YES, YOUR HONOR. THE RELEVANCE OF
4 THIS IS NUMBER ONE, WE'RE GOING TO BE SHOWING A PATTERN OF
5 CONDUCT AND THAT PATTERN OF CONDUCT WILL GO TO THE MENTAL
6 STATE OF THE DEFENDANT, AND PARTICULARLY A -- A DEPRAVED
7 INDIFFERENCE, AS IT WERE. AND -- AND I THINK TESTIMONY
8 COMPARING -- AND I CAN SAY TO YOU BECAUSE THE JURY'S NOT
9 HERE, WE'RE GOING TO HAVE DR. JENSEN WHO WOULD SPEND A GREAT
10 DEAL OF TIME WITH THESE PATIENTS ON THE UNIT, AND WE HAVE
11 DR. WEITZEL WHO WOULD SPEND VERY LITTLE TIME.
12 AND I -- YOU KNOW, I JUST WANT TO GET THAT INFORMATION
13 IN. IT WILL COME IN WITH OTHER WITNESSES AS WELL IN MORE
14 DETAIL, BUT, YOU KNOW, I THINK IT'S APPROPRIATELY SOMETHING
15 SHE CAN TESTIFY TO.
16 THE COURT: WELL, DO YOU PLAN ON SAYING OKAY,
17 DURING THIS PERIOD OF TIME FROM APRIL TILL NOVEMBER OF 1995,
18 THIS WITNESS IS GOING TO SAY, BASICALLY, THAT DR. WEITZEL
19 SPENT LITTLE TIME THERE AS COMPARED TO -- TO DR. JENSEN? OR
20 IS THERE ANYTHING ELSE ABOUT DEPRAVED INDIFFERENCE THAT
21 SHE'S GOING TO TESTIFY ABOUT?
22 MS. BARLOW: WELL, I THINK THAT GOES TO THE
23 DEPRAVED INDIFFERENCE, THAT HE WOULD SPEND VERY LITTLE TIME
24 WITH THE PATIENTS THEMSELVES.
25 THE COURT: OKAY. AND THEN DO YOU PLAN ON HAVING
155
1 OTHER WITNESSES AFTER NOVEMBER OF 1995 SAY THAT THAT
2 CONTINUED ON OR IS THAT --
3 MS. BARLOW: EXACTLY, YOUR HONOR.
4 THE COURT: OKAY. MR. STIRBA?
5 MR. STIRBA: YOUR HONOR, THE -- THE PROBLEM I HAVE
6 WITH THIS IS IT'S SORT OF FUNDAMENTAL. FIRST OF ALL, THE
7 FACTS ARE THAT HE HAD A CONTRACT. THEY KNOW IT, THEY DON'T
8 PRODUCE IT. THEY KNOW IT'S A PART-TIME CONTRACT. HE WASN'T
9 SUPPOSED TO BE THERE FULL TIME, 24 HOURS A DAY. THAT'S THE
10 FIRST FACT.
11 THE SECOND FACT IS, IF THIS CASE IS GOING TO BECOME --
12 THEY'RE GOING TO TROT IN ALL THESE NURSES WHO ARE GOING TO
13 SAY, GEE, DR. WEITZEL WASN'T AS GOOD AS DR. JENSEN, THEN
14 WE'RE GOING TO TROT IN ALL OUR NURSES WHO ARE GOING TO SAY
15 DR. JENSEN WAS NEVER THERE AND DR. WEITZEL WAS 10 TIMES THE
16 DOCTOR THAT DR. JENSEN WAS.
17 SO THAT'S THE PROBLEM. IT DOESN'T FOCUS ON THE REAL
18 FACTUAL QUESTION OF WHETHER OR NOT THE FIVE PATIENTS IN THIS
19 CASE DURING THE RELEVANT TIME PERIOD WERE THE VICTIMS OF A
20 CRIMINAL ACT. AND THIS IS MERELY LAY OPINION AT BEST, AT
21 BEST, AND IT DOESN'T REALLY GET YOU ANYWHERE OTHER THAN,
22 OBVIOUSLY, MS. MOORE MAY HAVE SOME FEELINGS WHICH SHE LIKES
23 DR. JENSEN MAYBE MORE THAN SHE LIKES DR. WEITZEL. BUT I'M
24 TELLING YOU, WE HAVE THE SAME KIND OF WITNESSES AND IT'S A
25 TOTAL IRRELEVANCY IN THIS CASE.
156
1 AND THE FACT OF THE MATTER IS, IT ISN'T A TRUE
2 REPRESENTATION EITHER BECAUSE DR. WELBY JENSEN -- IF WE'RE
3 GOING TO GET INTO THIS, WE'RE GOING TO GET INTO THE FACT HE
4 WAS FULL TIME AT F.H.P. DURING THE TIME THAT HE HAD A
5 CONTRACT WITH HORIZON. SO HE WASN'T UP THERE MUCH. AND HE
6 ALSO -- THERE ARE PEOPLE WHO ARE GOING TO TESTIFY THAT THAT
7 WAS PART OF THE PROBLEM, THAT WELBY JENSEN WAS NEVER THERE
8 AND THEY HAD TO GO TO THIS MAN OVER HERE TO COVER ALL OF HIS
9 PROBLEMS, AND SO THAT THIS PARTICULAR PSYCHIATRIST WAS DOING
10 DOUBLE TIME.
11 AND WE GET INTO ALL THESE -- THESE -- THESE DISPARATE
12 KINDS OF QUESTIONS WHICH I THINK ARE WHOLLY IRRELEVANT. I
13 MEAN, THE FACT OF -- OF HOW DR. WEITZEL PRACTICED OR DIDN'T
14 PRACTICE WHEN THIS WOMAN WASN'T EVEN THERE -- IN OTHER
15 WORDS, DURING THE PERTINENT TIME PERIOD -- IS IRRELEVANT AND
16 THAT'S REALLY ALL THIS EVIDENCE IS ALL ABOUT.
17 AND I'D SUBMIT IT'S IRRELEVANT, IT'S LAY OPINION, IT
18 DOESN'T REALLY ASSIST THE FACT-FINDER FOR PURPOSES OF
19 DETERMINING ANY RELEVANT ISSUES IN THIS CASE.
20 AND I ALSO WILL TELL YOU, JUDGE, IT'S REALLY, REALLY
21 IMPRESSIONISTIC. SEE, THIS IS ONE OF THE PROBLEMS WITH THIS
22 KIND OF CASE. YOU GET -- YOU GET A BUNCH OF PEOPLE WHO ARE
23 WORKING TOGETHER, AND I'LL TELL YOU RIGHT NOW, YOU'RE GOING
24 TO HAVE A BUNCH OF PEOPLE THAT ARE GOING TO LIKE ONE GUY AND
25 YOU'RE GOING TO HAVE A BUNCH OF PEOPLE WHO ARE GOING TO LIKE
157
1 ANOTHER GUY. AND IF THIS IS WHAT THIS CASE IS GOING TO
2 DEGENERATE INTO, I'D SUBMIT THAT'S WRONG. IT SHOULDN'T BE
3 THAT WAY AND IT'S TOTALLY IMPROPER CONSIDERING THE
4 SERIOUSNESS OF THESE CHARGES.
5 AND THAT'S ALL THAT REALLY IS GOING ON HERE. AND IT
6 DOES HAVE A TENDENCY, OBVIOUSLY, TO PREJUDICE THE JURY
7 BECAUSE -- YOU KNOW, REMEMBER THE OTHER THING. THIS IS A
8 NURSE. THIS -- THIS IS NOT THE EXPERT. THIS IS NOT
9 SOMEBODY WHO HAS EXPERTISE IN THE FIELD OF PSYCHIATRIC CARE
10 FROM A MEDICAL STANDPOINT. SO TO HAVE HER ASSESSING IN ANY
11 WAY, SHAPE, OR FORM WHAT THIS DOCTOR DID IS TOTALLY LACKING
12 IN ANY QUALIFICATION AND ANY FOUNDATION AND SHOULDN'T BE
13 ALLOWED IN ANY EVENT.
14 AND IT SEEMS TO ME, IF WE WANT TO GET THE FACTS, WHY
15 DON'T WE GET THE FACTS. WHY DON'T WE HAVE DR. JENSEN COME
16 IN HERE AND SAY, HOW MANY HOURS DID YOU WORK? HOW MANY
17 HOURS DID HE WORK? SHE DOESN'T KNOW THAT, MAYBE JENSEN DOES
18 BECAUSE JENSEN WAS THE MEDICAL DIRECTOR AND HE WAS THE
19 ASSOCIATE MEDICAL DIRECTOR. LET'S GET THE FACTS. SHE
20 DOESN'T KNOW THE FACTS. SHE ALREADY TESTIFIED THAT HE WAS
21 FULL TIME AND SHE'S FLAT OUT WRONG. THERE'S A CONTRACT,
22 THEY HAVE IT, THEY DON'T USE IT.
23 AND I'D SUGGEST THAT THAT'S WHERE WE OUGHT TO LITIGATE
24 THIS CASE, ON THE FACTS. NOT IMPRESSIONS, NOT THESE LAY
25 OPINIONS, NOT THESE DRAWN CONCLUSIONS ABOUT SOMEBODY'S
158
1 CONDUCT, AND THAT'S ALL THIS IS. AND ONCE AGAIN I SUGGEST
2 NOT ONLY IS IT IRRELEVANT, IT DOESN'T HELP THE JURY.
3 THE COURT: OKAY. WELL, THERE'S SOME --
4 MS. BARLOW: YOUR HONOR, IT'S ALSO --
5 THE COURT: WELL, LET ME --
6 MS. BARLOW: -- NOT WHAT I WAS ARGUING.
7 THE COURT: WELL, LET ME JUST ASK A QUESTION FIRST.
8 OKAY, MR. STIRBA, SHE'S SAYING THAT WHETHER IT'S AN
9 OPINION -- I THINK WHAT SHE'S SAYING IS THAT SHE'S GOING TO
10 SAY WHAT SHE OBSERVED. AND IF WHAT SHE OBSERVED -- I MEAN,
11 DOES IT GO TO WEIGHT OR NOT IF SOMEBODY IS THERE MORE
12 FREQUENTLY OR LESS FREQUENTLY, AND DOES IT GO TO THE ISSUE
13 OF DEPRAVED INDIFFERENCE. LIKE IS -- IS ABSENCE ONE OF THE
14 ELEMENTS OF DEPRAVED INDIFFERENCE.
15 AND -- AND SHE TESTIFIED -- YOU KNOW, WHAT -- WHAT
16 YOU'RE SAYING IS YES, SHE'S ONLY THERE TWO DAYS. ALL THIS
17 CAN BE BROUGHT OUT IN CROSS-EXAMINATIONS. ON THE DAYS SHE'S
18 THERE, CAN SHE TESTIFY ABOUT THAT ISSUE TO GO TO THE ISSUE
19 OF DEPRAVED INDIFFERENCE?
20 MR. STIRBA: TO -- TO A STATE OF MIND? ABSOLUTELY
21 NOT. I MEAN --
22 THE COURT: WELL, NOT A STATE OF MIND.
23 MR. STIRBA: OKAY.
24 THE COURT: I THINK JUST -- JUST PRESENCE. ARE YOU
25 ASKING ABOUT PRESENCE THERE?
159
1 MS. BARLOW: NOT JUST PRESENCE WHETHER HE WAS THERE
2 ALL DAY OR NOT ALL DAY, BUT THE TIME ACTUALLY SPENT WITH
3 THE -- THE PATIENTS, WHICH I THINK GOES TO DEPRAVED
4 INDIFFERENCE. I -- I'M NOT --
5 THE COURT: WELL, I GUESS -- I GUESS --
6 MS. BARLOW: -- I'M NOT GOING TO BRING IN ANYTHING
7 THAT'S HE'S ARGUING I SHOULDN'T BRING IN. I'M NOT GOING TO
8 ASK HER OPINION; I'M NOT GOING TO ASK WHETHER SHE LIKES
9 DR. WELBY -- OR EXCUSE ME --
10 THE COURT: JENSEN.
11 MS. BARLOW: -- DR. JENSEN OR DR. WEITZEL. THAT'S
12 NOT RELEVANT. I DON'T CARE ABOUT THAT.
13 THE COURT: OKAY. BUT ISN'T ONE OF THE ISSUES THAT
14 WE'VE GOT HERE -- I MEAN, WE HAVE PEOPLE IN A
15 GEROPSYCHIATRIC UNIT AND NOT EVERYBODY IN THE
16 GEROPSYCHIATRIC UNIT HAS THE SAME CONDITIONS AND THE SAME
17 PROBLEMS. AND IF ONE DOCTOR SPENDS MORE TIME WITH A PATIENT
18 WHO HAS MORE TROUBLING PROBLEMS THAN ANOTHER DOCTOR WITH A
19 DIFFERENT PATIENT -- BECAUSE EVERYBODY'S PROBLEMS ARE NOT
20 THE SAME -- HOW DO WE -- HOW DOES THAT GO TO A JURY?
21 I MEAN, A JURY SAYS GEE, ONE PERSON SPENT IT, BUT WE
22 DON'T KNOW ALL THE FACTORS AND THE BACKGROUND OF WHO THE
23 PATIENTS ARE THAT THEY'RE WITH AND WHAT THEY'RE DOING. AND
24 THIS PERSON ISN'T AN EXPERT TO SAY, YOU KNOW, IS IT -- IS IT
25 RIGHT THAT THEY SHOULD BE THERE MORE TIME OR LESS TIME.
160
1 SHE'S JUST OBSERVING WELL, DR. JENSEN GOES IN THERE, SPENDS
2 A LOT MORE TIME, MAYBE HAS A BETTER BEDSIDE MANNER;
3 DR. WEITZEL SPENDS LESS TIME. AND WE DON'T KNOW WHAT THE
4 CHARACTER OF THE PATIENTS ARE OR THEIR CONDITIONS.
5 MS. BARLOW: BUT WE'RE TALKING ABOUT A PATTERN AND
6 THE PATTERN WILL SHOW THAT DR. JENSEN SPENT TIME ACTUALLY
7 SITTING AND TALKING WITH PATIENTS AND FINDING OUT WHAT WAS
8 GOING ON. DR. WEITZEL CAME IN, LOOKED IN WHILE THEY WERE
9 ASLEEP, TALKED TO THE NURSES, WROTE HIS NOTES AND LEFT.
10 THE COURT: OKAY. WELL, LET'S SAY THAT'S ALL TRUE.
11 IF IT'S A PATTERN BETWEEN WHAT DR. JENSEN DOES AND WHAT
12 DR. WEITZEL DOES, UNLESS -- YOU KNOW, WE ALL HAVE SEEN
13 DOCTORS OR PROFESSIONALS AT ANY POINT AND SOME OF THEM ARE
14 MORE CURT THAN OTHERS, AND ESPECIALLY I THINK EVERYBODY'S
15 HAD AN EXPERIENCE WITH A DOCTOR THAT ONE'S MAYBE MORE
16 FRIENDLIER AND MORE OPEN THAN ANOTHER ONE IS. BUT IS THAT
17 THE ISSUE THAT ONE IS NICER THAN THE OTHER OR --
18 MS. BARLOW: IT HAS NOTHING TO DO WITH NICE. IT
19 HAS TO DO WITH LOOKING IN AT A PATIENT WHO IS ASLEEP. IT'S
20 NOT THE SAME AS ACTUALLY DOING AN EVALUATION WITH THEM OR --
21 OR TRYING TO HELP THEM.
22 THE COURT: OKAY. WELL, HOW -- HOW DOES THIS HELP
23 US IF WHAT THIS PERSON IS SAYING IS THIS IS WHAT HAPPENED
24 BEFORE THE RELEVANT TIME PERIOD FOR ANY OF THE DEATHS?
25 WE'RE TALKING SHE LEFT IN NOVEMBER OF '95 AND --
161
1 MS. BARLOW: BECAUSE IT'S --
2 THE COURT: -- AND THE EARLIEST --
3 MS. BARLOW: -- IT'S A PATTERN THAT CONTINUED. AND
4 OTHER WITNESSES WILL TESTIFY THAT IT CONTINUED DURING THIS
5 TIME.
6 THE COURT: AND THE PATTERN -- THE PATTERN IS WHAT?
7 THAT HE -- HE DOESN'T COME IN AND SPEND MUCH TIME?
8 MS. BARLOW: EXACTLY. IN FACT, SOME DAYS HE
9 DOESN'T COME IN AT ALL.
10 THE COURT: OKAY. AND HOW DOES THAT GET US TO
11 DEPRAVED INDIFFERENCE? IS DEPRAVED INDIFFERENCE GOING TO BE
12 HE DOESN'T GO IN AND SPEND MUCH TIME, AND HE COMES EARLY
13 AND -- AND LATE?
14 MS. BARLOW: THE DEPRAVED INDIFFERENCE IS THAT --
15 WELL, LET'S -- IT'S THE TOTALITY OF EVERYTHING WE'RE LOOKING
16 AT. THAT'S A FACTOR. IT'S NOT THE ONLY THING THAT'S GOING
17 TO SHOW US DEPRAVED INDIFFERENCE, BUT IT'S -- IT'S GOING TO
18 SHOW THE ATTITUDE THAT HE HAD TOWARDS THESE PEOPLE AND --
19 AND THAT GOES TO THE DEPRAVED INDIFFERENCE, YOUR HONOR.
20 WELL, AND THE DETERMINATIONS HE'S MAKING WHETHER THESE
21 PEOPLE ARE TERMINALLY ILL OR NOT. GRANTED, SHE WASN'T THERE
22 DURING THAT TIME FRAME, BUT IT'S A PATTERN THAT EXTENDED
23 BEYOND AND INTO THE PERTINENT TIME FRAME.
24 THE COURT: OKAY. AND HOW FREQUENTLY IS SHE SEEING
25 THESE DOCTORS DOING WHAT THEY'RE DOING? AND I GUESS WHAT
162
1 DR. JENSEN -- I GUESS THE QUESTION IS, WHATEVER DR. JENSEN
2 DOES, WHAT RELEVANCE DOES THAT HAVE TO WHAT DR. WEITZEL IS
3 DOING? I MEAN --
4 MS. BARLOW: YOUR HONOR, I -- I CAN JUST -- I CAN
5 JUST ASK HER ABOUT HOW -- HOW DID DR. WEITZEL DO IT, IF --
6 IF THAT'S GOING TO ALLEVIATE EVERYBODY'S CONCERNS.
7 THE COURT: WELL, I MEAN THE ONE CONCERN IS THAT I
8 AGREE WITH -- ONE THING MR. STIRBA SAID IS THAT WE'RE NOT
9 GOING TO SAY, DO YOU LIKE THIS ONE OR DO YOU LIKE THAT ONE?
10 AND THEN --
11 MS. BARLOW: I HAVE NO INTENTION OF ASKING THAT.
12 THE COURT: AND THEN WE HAVE 105 WITNESSES THAT ARE
13 GOING TO LINE UP --
14 MS. BARLOW: I HAVE NO INTENTION OF ASKING. WHO
15 LIKES WHO IS JUST NOT RELEVANT AT ALL --
16 THE COURT: NO, BUT I --
17 MS. BARLOW: -- AND I HAVE NO INTENTION --
18 THE COURT: I'M NOT SAYING THAT --
19 MS. BARLOW: -- AND I'M A LITTLE UPSET THAT HE EVEN
20 ASCRIBES THAT TO ME BECAUSE I HAVE NEVER SAID THAT.
21 THE COURT: WELL, MY VIEW IS THAT NOBODY -- I PLAN
22 THAT NOBODY IS GOING TO GET UPSET IN THIS CASE. I DON'T
23 PLAN ON GETTING UPSET. AND IF SOMEBODY BRINGS UP A POINT,
24 LET'S JUST ARGUE THE POINT, LET'S NOT ARGUE THAT SOMEBODY
25 ATTRIBUTE BAD MOTIVES TO ANYBODY. LET'S JUST ARGUE THE
163
1 POINT.
2 OKAY. SO RIGHT NOW YOU'RE SAYING THAT -- GIVE HER THE
3 OPPORTUNITY TO STATE WHAT SHE OBSERVED DR. WEITZEL DOING
4 WHEN SHE SAW DR. WEITZEL WITH PATIENTS.
5 MS. BARLOW: I WILL KEEP IT TO THAT, YOUR HONOR.
6 THE COURT: OKAY. THEN RESPOND TO THAT.
7 MR. STIRBA: YEAH. THERE ARE TWO PROBLEMS. ONE, I
8 THINK IF WE ALLOW THIS, WE'RE -- WE'RE STARTING DOWN THAT
9 ROAD OF HE'S BEING TRIED FOR BEING PERHAPS NOT A GOOD DOCTOR
10 AND NOT FOR MURDER BECAUSE REALLY THIS IS NOT PROBATIVE OF
11 THE FACTS THAT HAVE BEEN ALLEGED IN THE INFORMATION.
12 THE SECOND THING IS, JUDGE -- AND SO UNDER 403 I THINK
13 IT CERTAINLY WOULD BE INADMISSIBLE IN ANY EVENT.
14 BUT THE OTHER PROBLEM IS, REMEMBER, WE -- WE HAVE FIVE
15 PATIENTS AND WE HAVE A BUNCH OF FACT WITNESSES WHO WERE
16 THERE. AND IT SEEMS TO ME THEY'RE CERTAINLY ENTITLED TO
17 BRING THOSE PEOPLE IN AND SAY OKAY, WHAT KIND OF CARE DID
18 DR. WEITZEL GIVE THIS PATIENT AND WHAT HAPPENED AND WHAT DID
19 YOU OBSERVE?
20 THAT'S RELEVANT, THAT'S PROBATIVE TO THE STATE OF MIND
21 WHICH HAS TO EXIST AT THE TIME OF THE ACT. HIS STATE OF
22 MIND FOUR MONTHS BEFORE IS IRRELEVANT. THIS PATTERN
23 EVIDENCE IS IRRELEVANT TO WHAT IS BEING CHARGED. AND IT'S
24 CERTAINLY, AS I SAY, NOT NECESSARY GIVEN THAT WE HAVE REAL
25 FACT WITNESSES WHO WERE PART OF THE CARE THAT WAS PROVIDED
164
1 AT THE TIME WHO CAN TELL US, WAS DR. WEITZEL THIS OR WAS
2 DR. WEITZEL THAT OR WHAT DID DR. WEITZEL DO OR WHAT HE
3 DIDN'T DO. AND THIS JUST BECOMES SORT OF EXTRANEOUS.
4 AND REALLY MY POINT, I WASN'T SUGGESTING AT ALL THAT
5 COUNSEL REALLY IS INTERESTED IN HAVING THIS WITNESS SAY SHE
6 LIKES DR. WEITZEL, SHE DOESN'T LIKE DR. WEITZEL. MY POINT
7 IS THAT THERE ARE LOYALTIES WITH ALL OF THESE WITNESSES.
8 BASED UPON THOSE LOYALTIES THEY HAVE PERCEPTIONS, AND THOSE
9 PERCEPTIONS ARE JUST LAY PERCEPTIONS AND, THEREFORE, THEY'RE
10 NOT REALLY THAT HELPFUL IN TERMS OF EDUCATING THIS JURY
11 ABOUT THE EVENTS OF DECEMBER AND JANUARY OF '95 AND '96.
12 AND I EMPHASIZE AGAIN, WE DO GET DOWN TO THAT ROAD
13 WHERE WE'RE CRIMINALIZING ESSENTIALLY ALLEGATIONS OF
14 MALPRACTICE. FOR EXAMPLE, OBVIOUSLY YOU CAN DRAW AN
15 INFERENCE THAT A DOCTOR IS NOT BEING A -- CERTAINLY A
16 COMPASSIONATE OR A GOOD DOCTOR IF WE'RE SAYING HE DOESN'T
17 SPEND TIME WITH PATIENTS. YOU CAN DRAW THAT INFERENCE.
18 BUT BY THE SAME TOKEN, WHAT RELEVANCE DOES THAT HAVE TO
19 THE EVENTS THAT OCCURRED THAT HAVE BEEN CHARGED IN THE
20 INFORMATION? AND YOU HAVE A TENDENCY TO THINK, OKAY, IF
21 HE'S A BAD DOCTOR FOUR MONTHS BEFORE, THEN OBVIOUSLY HE'S
22 GOING TO BE A BAD DOCTOR AGAIN. AND I JUST DON'T SEE HOW
23 THAT INFERENCE LINES UP WHATSOEVER AND I THINK IT'S 403 --
24 CLEARLY -- MATERIAL AND I THINK IT'S HIGHLY IRRELEVANT. AND
25 THAT'S MY RESPONSE.
165
1 THE COURT: WELL, IS THIS A 404 PROBLEM? IT SAYS:
2 EVIDENCE OF A PERSON'S CHARACTER OR TRAIT IS NOT ADMISSIBLE
3 FOR THE PURPOSE OF PROVING ACTION AND CONFORMITY THEREWITH.
4 IF WE'RE TALKING ABOUT WHAT HAPPENED PRIOR TO NOVEMBER, AND
5 THEN SAYING WHAT HAPPENED IN DECEMBER OR JANUARY.
6 MS. BARLOW: WELL --
7 MR. STIRBA: THAT'S AN ADDITIONAL PROBLEM.
8 MS. BARLOW: -- DOESN'T THAT GO ON TO STATE YOU CAN
9 BRING IT IN -- I -- I'M NOT GETTING INTO HIS CHARACTER.
10 THE COURT: WELL --
11 MS. BARLOW: I'M GETTING INTO WHAT HE DID AS A
12 PHYSICIAN. AND TIME IS IMPORTANT --
13 THE COURT: WELL, I KNOW, BUT --
14 MS. BARLOW: -- WHEN YOU'RE TALKING ABOUT A
15 PSYCHIATRIST.
16 THE COURT: BUT WHAT -- BUT WHAT YOU'RE SAYING IS
17 THAT WHATEVER HE DID IN APRIL TO NOVEMBER, HE DID IN
18 DECEMBER AND JANUARY.
19 MS. BARLOW: YES.
20 THE COURT: SO THAT'S SAYING THAT BECAUSE HE DID IT
21 NOW, HE DID IT THEN. AND THAT'S WHAT THE --
22 MS. BARLOW: NO. NO. WHAT I'M SAYING IS THAT SHE
23 WILL TESTIFY HE WAS DOING IT FROM APRIL TO NOVEMBER. OTHERS
24 WILL TESTIFY THIS -- THIS ACTIVITY OR LACK OF ACTIVITY OR
25 THIS CONDUCT CONTINUED THROUGH THE TIMES OF THE DEATHS. AND
166
1 IT GOES TO THE STATE OF MIND BECAUSE, YOU KNOW, WE'VE GOT TO
2 SHOW MENTAL STATE AND WE CAN'T DO THAT BY REACHING INTO
3 SOMEBODY'S BRAIN AND -- AND PULLING OUT WHAT HE WAS
4 THINKING. BUT I THINK WE CAN SHOW A PATTERN AND A TOTALITY
5 OF THE CIRCUMSTANCES THAT SHOWS NOT THAT HE WAS A BAD
6 DOCTOR, NOT THAT HE DIDN'T SPEND TIME WITH -- ALTHOUGH,
7 FRANKLY, TIME IS MUCH MORE IMPORTANT IN THIS CASE THAN IT IS
8 WITH A MEDICAL DOCTOR BECAUSE THESE ARE PSYCHIATRISTS WHO
9 ARE SUPPOSED TO -- I MEAN, WHAT THEY DO IS TALK TO PEOPLE.
10 THAT'S HOW THEY DO WHAT THEY DO.
11 THE COURT: WELL -- WELL, REFRESH MY MEMORY, IF --
12 IF I MISSED SOMETHING FROM THE OPENING STATEMENTS. DID --
13 BUT CAN ANY OF THESE PEOPLE THAT ARE INVOLVED IN THIS CASE
14 EVEN TALK TO THE DOCTOR AND SAY WHAT IS THE TROUBLE WITH
15 THEM? I THOUGHT ALL OF THEM WERE IN A STATE THAT THEY
16 REALLY COULDN'T ARTICULATE WHAT THEIR CONDITION WAS.
17 MR. STIRBA: IT'S MEDICATION MANAGEMENT I THINK IS
18 WHAT PSYCHIATRISTS ARE DOING ON THIS UNIT, GENERALLY. NOT
19 THERAPY.
20 THE COURT: OKAY.
21 MS. BARLOW: WELL, THERE'S MEDICATION MANAGEMENT
22 AND THERE'S ALSO DEALING WITH THEIR BEHAVIORS. GRANTED,
23 THESE PEOPLE ARE DEMENTED. THEY HAVE THEIR GOOD DAYS AND
24 THEIR BAD DAYS. THERE ARE DAYS WHEN THEY CAN BE DIRECTED,
25 THEY CAN BE HELPED, BUT PART OF IT IS -- PART OF AN
167
1 EVALUATION FOR A PSYCHIATRIST, ESPECIALLY WITH GERIATRIC
2 PATIENTS, IS TO SIT DOWN WITH THEM AND FIGURE OUT, YOU KNOW,
3 WHERE IS THE DEMENTIA. AND -- AND IT DOES FLUCTUATE FROM
4 DAY-TO-DAY.
5 THE COURT: OKAY. WELL, DO YOU AGREE OR
6 DISAGREE -- WELL, THE WAY I'M LOOKING AT THIS, YOU KNOW,
7 WHETHER YOU CALL IT CHARACTER, WHETHER YOU CALL IT A TRAIT,
8 OR WHETHER YOU CALL IT A STATE OF MIND, THE RULE SAYS:
9 EVIDENCE OF THESE OTHER WRONGS OR ACTS IS INADMISSIBLE TO
10 PROVE CHARACTER, BUT MAY BE ADMISSIBLE FOR THESE OTHER
11 PURPOSES THAT YOU'RE TALKING TO.
12 MS. BARLOW: RIGHT.
13 THE COURT: BUT IT ALSO SAYS THAT IT HAS TO SHOW
14 THAT IT -- IT'S RELEVANT FOR A NON-CHARACTER PURPOSE AND
15 MEETS THE REQUIREMENTS OF RULE 403. AND IF WE PUT THIS TO A
16 JURY ON A PERSON -- OKAY, WHAT WE HAVE RIGHT NOW IS A
17 WITNESS WHO IS GOING TO SAY THESE THINGS HAPPENED PRIOR TO
18 THE TIME IN QUESTION. AND THEN THE JURY, WHAT ARE THEY
19 GOING TO DO WITH THIS? BAD DOCTOR BEFORE, BAD DOCTOR NOW?
20 MS. BARLOW: I'M NOT TALKING BAD DOCTOR. I'M
21 TALKING WHAT WAS HIS STATE OF MIND? HOW DID HE FEEL ABOUT
22 THESE PEOPLE? HE DID NOT --
23 THE COURT: WELL, HOW CAN -- HOW CAN SHE TELL HIS
24 STATE OF MIND BY THE AMOUNT OF TIME HE SPENDS WITH THE
25 PATIENT?
168
1 MS. BARLOW: THE ONLY WAY ANY OF US CAN TELL STATE
2 OF MIND IS BY WHAT ACTIONS ARE EXHIBITED. HE DIDN'T CARE
3 ABOUT THE PEOPLE BEFORE, HE DIDN'T CARE ABOUT THE PEOPLE
4 DURING THE RELEVANT TIME PERIOD. AND -- AND IT SHOWS HIS
5 STATE OF MIND THAT HE DIDN'T CARE. AND IT'S A CONTINUING --
6 IT'S A CONTINUING STATE OF MIND.
7 THE COURT: OKAY. LAST -- LAST WORDS?
8 MR. STIRBA: WELL, ONCE AGAIN, IT'S NOT PROBATIVE
9 AS TO THESE DEATHS. AND IF THIS DOOR IS OPEN, THEN I GUESS
10 THIS MEANS WE CAN BRING ALL OF THE OTHER NURSES THAT ARE
11 GOING TO TELL ABOUT WHAT A CARING DOCTOR HE WAS AND WHAT A
12 GOOD DOCTOR HE WAS AND HOW MUCH TIME THEY OBSERVED HIM
13 SPENDING WITH THE PATIENTS AND WE CAN GO DOWN THAT ROAD.
14 AND I JUST THINK THE WHOLE ROAD IS IRRELEVANT AND IT'S
15 403 MATERIAL. IT'S GOING TO MISLEAD THE JURY. IT'S GOING
16 TO CREATE ALL KINDS OF PREJUDICE AGAINST HIM, WHICH HAS
17 NOTHING TO DO WITH THE PROOF OF STATE OF MIND AT THE TIME OF
18 THE EVENT. THAT'S WHAT THE CRIMINAL CASE IS ALL ABOUT. DID
19 HE ACT, WHEN HE ACTED, WITH A DEPRAVED INDIFFERENCE OR
20 KNOWINGLY AND INTENTIONALLY. AT THE TIME. WHAT HE DID
21 BEFORE IS ENTIRELY IRRELEVANT.
22 THE COURT: OKAY. I'M GOING TO TAKE A SHORT BREAK.
23 I WANT TO READ ONE CASE HERE AND THEN I'LL BE BACK BEFORE
24 THE JURY COMES BACK.
25 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
169
1 PROCEEDINGS RESUME OUT OF THE HEARING OF THE JURY, AS
2 FOLLOWS:)
3 THE COURT: OKAY. ON THIS LAST ISSUE OF EVIDENCE
4 THAT HAS BEEN PRESENTED, THE ISSUE OF THIS WITNESS'S
5 TESTIMONY OF WHAT SHE OBSERVED DR. WEITZEL DOING WITH
6 PATIENTS ON -- AT THIS UNIT, I VIEW THIS AS BEING UNDER
7 RULE 404 THAT IT'S A TRAIT OF CHARACTER OR A PERSON'S
8 CHARACTER. AND ALTHOUGH THERE'S AN EXCEPTION THAT SAYS
9 EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS ISN'T ADMISSIBLE
10 TO PROVE CHARACTER OR CONSISTENCY OF PERFORMANCE, BUT IT
11 COULD BE ADMISSIBLE FOR OTHER REASONS THAT HAVE BEEN ARGUED
12 BY THE STATE. BUT THE RULE PROVIDES THAT THE EVIDENCE
13 OFFERED UNDER THE RULE IS ADMISSIBLE IF IT IS RELEVANT FOR A
14 NONCHARACTER PURPOSE AND MEETS THE REQUIREMENTS OF RULE 402
15 AND 403.
16 403 READS ALTHOUGH RELEVANT EVIDENCE MAY BE EXCLUDED IF
17 ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED BY THE
18 DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES,
19 MISLEADING THE JURY, OR BY CONSIDERATIONS OF UNDUE DELAY,
20 WASTE OF TIME, OR NEEDLESS PRESENTATION OF CUMULATIVE
21 EVIDENCE.
22 GENERALLY WHEN THIS RULE IS USED, WE TALK ABOUT UNFAIR
23 PREJUDICES AS THE REASON. I GUESS THE CONCERN THAT I HAVE
24 IS, YOU KNOW, WHAT IS GOING TO BE THE SCOPE OF THIS TRIAL?
25 IS THE SCOPE OF THIS TRIAL GOING TO BE A SITUATION WHERE IF
170
1 THIS WITNESS TESTIFIES REGARDING WHAT SHE OBSERVED, THEN WE
2 START BRINGING IN OTHER WITNESSES TESTIFYING WHAT THEY
3 OBSERVED? AND DURING THE RELEVANT TIME PERIOD; THAT IS,
4 DECEMBER OF '95 AND JANUARY OF '96, THERE MAY BE MORE
5 ABILITY TO DO THAT.
6 BUT I -- I REALLY THINK THAT THERE CAN BE CONFUSION IN
7 THE MINDS OF THE JURY. I THINK IT IS ALSO GOING TO CAUSE A
8 WASTE OF TIME IN THE SENSE THAT IF WE ARE GOING TO HAVE
9 EVIDENCE THAT'S BEFORE THE PERIOD OF TIME ABOUT WHAT THE
10 DOCTOR DID, AND THEN REBUTTAL EVIDENCE OF THE SAME, THESE 60
11 PLUS WITNESSES AND 49 WITNESSES, WE'RE PROBABLY GOING TO
12 HEAR FROM EVERY ONE.
13 SO I'M GOING TO SUSTAIN THE OBJECTION, AND ASK THE JURY
14 TO COME BACK.
15 (WHEREUPON, AT THIS TIME THE JURY ENTERS THE COURTROOM,
16 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOW:)
17 THE COURT: THANK YOU FOR YOUR PATIENCE, LADIES AND
18 GENTLEMEN. ANOTHER OPTION THAT -- WHEN YOU GET TO GO IN AND
19 OUT LIKE THIS IS YOU DO STAY AWAKE THAT WAY. SO IF WE MAKE
20 YOU STAND UP AND WALK, THEN IT HELPS YOU.
21 OKAY. MS. BARLOW, IF YOU'D LIKE TO CONTINUE?
22 MS. BARLOW: THANK YOU, YOUR HONOR.
23 DIRECT EXAMINATION CONT'D
24 BY MS. BARLOW:
25 Q. MS. MOORE, YOU LEFT THE UNIT; IS THAT CORRECT?
171
1 A. YES, MA'AM.
2 Q. IN LATE NOVEMBER, WAS IT?
3 A. I CAN'T REMEMBER IF IT WAS LATE -- IT WAS AROUND LATE
4 NOVEMBER, FIRST OF DECEMBER.
5 Q. DID YOU EVER HAVE OCCASION -- WELL, LET ME STEP BACK
6 JUST A LITTLE BIT. IF YOU EVER HAD A CONFLICT WITH A
7 DOCTOR, ANY DOCTOR, WHAT WOULD YOU DO? LET'S -- LET'S SAY
8 ON -- ON AN ORDER THAT HE GAVE THAT YOU DIDN'T THINK WAS
9 APPROPRIATE BECAUSE YOU DO HAVE YOUR OWN --
10 A. RIGHT.
11 MR. STIRBA: I WOULD OBJECT, YOUR HONOR. RELEVANCY
12 AND LACK OF FOUNDATION, AND IT'S LEADING AND SUGGESTIVE.
13 THE COURT: JUST LAY A LITTLE MORE FOUNDATION.
14 MS. BARLOW: THAT'S ABOUT 12 STRIKES OUT -- AND I'M
15 OUT, YOUR HONOR.
16 OKAY. LET ME LAY A LITTLE FOUNDATION.
17 THE COURT: I LIKE THOSE BASEBALL ANALOGIES.
18 MS. BARLOW: I DON'T KNOW THAT THERE'S 12 STRIKES
19 AND YOU'RE OUT THOUGH. WELL, IT'S SUMMER SO WE'VE GOT TO
20 TALK BASEBALL.
21 Q. (BY MS. BARLOW) AS A NURSE, DO YOU HAVE ANY OBLIGATION
22 TOWARDS THE PATIENT SEPARATE FROM THE DOCTOR?
23 A. NO.
24 Q. LET'S LEAVE OUT THE DOCTOR PART.
25 A. OKAY.
172
1 Q. DO YOU HAVE AN OBLIGATION TO A PATIENT --
2 A. YES.
3 Q. -- AS A NURSE?
4 A. YES, I DO.
5 Q. WHAT IS YOUR OBLIGATION?
6 A. TO KEEP THE PATIENT SAFE, TO HELP THAT PATIENT, YOU
7 KNOW, GET BETTER, ASSIST THAT PATIENT. MOST --
8 Q. WHAT -- EXCUSE ME.
9 A. MOSTLY SAFETY.
10 Q. WHAT IF YOU WERE GIVEN AN ORDER TO DO SOMETHING THAT YOU
11 DIDN'T FEEL WAS SAFE?
12 A. I WOULD QUESTION THE DOCTOR FIRST, AND IF I STILL DIDN'T
13 GET -- IF HE STILL DIDN'T CHANGE IT, I WOULD CALL THE
14 SUPERVISOR WHO WAS OVER ME AT THE TIME AND DISCUSS IT WITH
15 THEM AND SEE WHAT I SHOULD DO.
16 Q. DID YOU EVER DO THAT DURING THE TIME FRAME OF THE LAST
17 FOUR MONTHS THAT YOU WERE ON THE GEROPSYCH UNIT? DID YOU
18 EVER CONFRONT DR. WEITZEL? AND I DON'T WANT TO GET --
19 MR. STIRBA: OBJECTION.
20 Q. (BY MS. BARLOW) AND I DON'T WANT TO GET INTO ANY
21 DETAIL.
22 MR. STIRBA: OBJECTION, YOUR HONOR. RELEVANCY.
23 MS. BARLOW: YOUR HONOR, IT'S RELEVANT BECAUSE
24 THERE HAS BEEN TALK ALREADY THAT THE NURSES GAVE THESE
25 SHOTS, ALTHOUGH SHE WASN'T THERE AND SHE DIDN'T GIVE THEM.
173
1 THE COURT: OKAY. HOLD ON JUST A SECOND. OKAY.
2 WHAT WAS YOUR -- WHAT IS YOUR OBJECTION?
3 MR. STIRBA: RELEVANCY INSOFAR AS ANY -- ANY
4 CONFLICT SHE MIGHT HAVE HAD AT ANY POINT PRIOR TO THE -- THE
5 EVENTS IN QUESTION. AND THE ONLY -- THE ONLY STATEMENTS
6 THAT HAVE BEEN MADE ABOUT THOSE HAVE BEEN ABOUT THE VERY
7 EVENTS IN QUESTION AND THE VERY NURSES WHO WERE PROVIDING
8 THE CARE.
9 THE COURT: OKAY. SUSTAINED.
10 Q. (BY MS. BARLOW) DID YOU EVER HAVE OCCASION TO GO UP
11 THROUGH THE NURSING CHAIN?
12 A. YES.
13 Q. WITH COMPLAINTS?
14 A. YES.
15 Q. WHAT RESPONSE DID YOU GET -- DON'T GIVE ME EXACT WORDS.
16 WHAT RESPONSE DID YOU GET?
17 MR. STIRBA: OBJECTION, RELEVANCY, YOUR HONOR.
18 MS. BARLOW: YOUR HONOR, IT'S VERY RELEVANT AS THE
19 OTHER NURSES COME IN AND TESTIFY AS --
20 THE COURT: ARE YOU TALKING ABOUT THE PROCEDURE?
21 ARE YOU -- OKAY. WHAT ARE WE GOING TO? THIS IS GOING TO
22 THE PROCEDURE?
23 MS. BARLOW: SHE FOLLOWED THE PROCEDURE WHICH SHE
24 HAS TESTIFIED TO, AND I WANT TO ESTABLISH THE RESPONSE THAT
25 SHE GOT WHEN SHE FOLLOWED THAT PROCEDURE.
174
1 THE COURT: OKAY.
2 MS. BARLOW: IT IS RELEVANT BECAUSE OF OTHER NURSES
3 WHO WILL COME IN AND TESTIFY AS TO WHAT HAPPENED DURING THE
4 TIME PERIOD OF THE DEATHS.
5 MR. STIRBA: AND THOSE --
6 THE COURT: ALL RIGHT. COULD COUNSEL JUST APPROACH
7 FOR A SECOND, PLEASE?
8 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION AT
9 THE BENCH.)
10 THE COURT: SO MUCH FOR BEING UP HERE. OKAY. ALL
11 RIGHT. I WAS JUST SAYING --
12 MS. BARLOW: AGAIN, WE'RE TOO WIRED.
13 THE COURT: -- I SAID, DO I WANT TO GIVE YOU -- DO
14 I WANT TO KEEP -- YOU DIDN'T LOOK LIKE YOU WERE ASLEEP, I
15 COULDN'T SEND YOU OUT AGAIN RIGHT NOW.
16 OKAY. I'M GOING TO SUSTAIN THAT OBJECTION.
17 Q. (BY MS. BARLOW) FROM THE BEGINNING OF THE UNIT UNTIL
18 YOU LEFT, ARE YOU AWARE OF WHETHER ANY MORPHINE WAS EVER
19 GIVEN TO ANY OF THESE PATIENTS?
20 MR. STIRBA: OBJECTION. IRRELEVANT, YOUR HONOR.
21 THE COURT: WHEN YOU SAY "TO THESE PATIENTS," ARE
22 YOU TALKING ABOUT --
23 MS. BARLOW: EXCUSE ME. TO -- TO ANY OF THE
24 PATIENTS BECAUSE, AGAIN, WE WANT TO ESTABLISH A PATTERN
25 HERE, YOUR HONOR.
175
1 MR. STIRBA: WELL --
2 THE COURT: OKAY. SUSTAINED.
3 MS. BARLOW: AND WITH THAT, I HAVE NOTHING FURTHER
4 TO ASK.
5 MR. STIRBA: NO QUESTIONS, YOUR HONOR. THANK YOU.
6 THE COURT: OKAY. MAY THIS WITNESS BE EXCUSED?
7 MR. STIRBA: YES.
8 MS. BARLOW: YES. MAY SHE REMAIN IN THE COURTROOM
9 AND -- AND WATCH ANY OF THE -- IT WON'T BE TODAY, OF COURSE,
10 BUT IS SHE EXCUSED FROM THE SUBPOENA?
11 THE COURT: SHE IS NOT GOING TO BE CALLED AGAIN?
12 IF SHE'S NOT GOING TO BE CALLED AGAIN, YES, SHE CAN REMAIN
13 IN THE COURTROOM. IF SHE'S GOING TO BE CALLED AGAIN THEN
14 SHE SHOULDN'T BE.
15 MS. BARLOW: OKAY. WE WILL DETERMINE WHETHER SHE'S
16 GOING TO BE CALLED AGAIN.
17 THE COURT: OKAY. ALL RIGHT. ARE THERE ANY OTHER
18 WITNESSES TO TESTIFY FOR TODAY?
19 MS. BARLOW: NOT TODAY.
20 THE COURT: LADIES AND GENTLEMEN -- YES, YOU MAY
21 STEP DOWN. THANK YOU.
22 LADIES AND GENTLEMEN, WHEN WE TALKED ABOUT WHETHER WE
23 WERE GOING TO START ON FRIDAY OR MONDAY, THERE WERE SOME
24 WITNESSES THAT WEREN'T ABLE TO COME TODAY AND SO I TOLD THE
25 ATTORNEYS THAT FOR TODAY ONLY, WE WEREN'T GOING TO HAVE --
176
1 WE MAY NOT GO TILL 5 O'CLOCK. EVERY OTHER DAY YOU CAN JUST
2 PLAN ON BEING HERE TILL 5:00 AND GOING. AND SO I THINK FROM
3 RIGHT -- FROM NOW ON WE'RE BASICALLY GOING TO HAVE WITNESSES
4 COME IN LIKE THE AIRPLANES AT THE SALT LAKE AIRPORT. YOU
5 SEE THEM ALL STACKED UP, YOU KNOW, IN A ROW COMING IN.
6 THAT'S HOW THE -- HOW THE WITNESSES WILL COME IN IN THE
7 FUTURE.
8 OKAY. NOW THAT YOU'RE GOING HOME FOR THE WEEKEND AND
9 THIS IS ALL GOING TO BE ON RADIO AND TELEVISION AND
10 EVERYTHING ELSE, YOU REALLY NEED TO BE ENCOURAGED NOT TO
11 LISTEN TO THAT, ANYTHING, WHETHER IT'S ON PAGERS, CELL
12 PHONES, TELEVISIONS, RADIOS. ONLY LISTEN TO WHAT'S HERE IN
13 THE COURTROOM TO COME UP WITH WHAT ARE THE FACTS OF THIS
14 CASE.
15 IT IS ALSO YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES
16 OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY
17 ANY OTHER PERSON. ANY OTHER PERSON MEANS WIVES, CHILDREN,
18 FRIENDS, ANYONE, ON ANY SUBJECT OF THE TRIAL. AND IT'S YOUR
19 DUTY NOT TO FORM OR EXPRESS AN OPINION THEREON UNTIL THE
20 CASE IS FINALLY SUBMITTED TO YOU.
21 SO WE'LL BE IN RECESS AND WE WILL START AT 8:30 ON
22 MONDAY MORNING. SO I WOULD SAY AGAIN, IF YOU COULD BE HERE
23 RIGHT BY 8:25 SO THEY CAN DO THE MAGIC WAND ON YOU, AND THEN
24 YOU'LL COME IN THERE.
25 YOU CAN LEAVE -- THIS COURTROOM WILL BE LOCKED AND YOU
177
1 REALLY SHOULDN'T TAKE YOUR NOTES WITH YOU. YOU SHOULD JUST
2 LEAVE THEM ON THE CHAIR OR YOU CAN LEAVE THEM IN THE JURY
3 ROOM, WHICHEVER YOU WANT TO DO. BUT THIS WILL BE LOCKED.
4 NOBODY WILL BE COMING IN HERE BEFORE 8:30 ON MONDAY.
5 SO WE'LL SEE YOU -- YOU'LL BE EXCUSED UNTIL THAT TIME.
6 (WHEREUPON, AT THIS TIME THE JURY LEAVES THE COURTROOM,
7 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
8 THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT
9 THE JURY HAS NOW GONE. IF THE STATE WISHES TO -- I MEAN, I
10 UNDERSTAND FROM THE STATEMENTS OF COUNSEL AND THE DISCUSSION
11 OUTSIDE -- EVERYONE CAN SIT DOWN. I'M SORRY. EXCUSE ME.
12 I'VE UNDERSTOOD FROM THE STATEMENTS OF COUNSEL, YOU
13 KNOW, UNDER RULE 102 OF THE -- 103 OF THE RULES OF EVIDENCE
14 THAT YOU'VE BASICALLY MADE AN OFFER OF PROOF. IF YOU WANT
15 TO PUT THE WITNESS ON THE STAND TO MAKE IT EVEN MORE CLEAR,
16 IF YOU DON'T THINK IT'S BEEN MADE MORE CLEARLY, I'M MORE
17 THAN HAPPY TO HAVE THAT HEARD OUTSIDE THE PRESENCE OF THE
18 JURY, IF YOU WISH TO DO THAT.
19 MS. BARLOW: YOUR HONOR, CAN I JUST MAKE A PROFFER?
20 THE COURT: YES.
21 MS. BARLOW: OKAY. THE PROFFER THAT WAS MADE AT --
22 AT THE BENCH WAS THAT SHE WOULD TESTIFY THAT SHE --
23 THE COURT: AND THAT'S MRS. -- MS. MOORE?
24 MS. BARLOW: SHEILA MOORE. EXCUSE ME. SHEILA
25 MOORE WOULD TESTIFY THAT SHE HAD CONFLICTS WITH DR. WEITZEL.
178
1 I THINK SHE DID TESTIFY THAT SHE APPROACHED DR. WEITZEL WITH
2 IT, DIDN'T FEEL LIKE HER CONFLICT WAS RESOLVED THERE. SHE
3 DID GO UP THE LADDER -- WHICH IS I THINK SHEILA HEWARD'S
4 TERM. SHE DID GO TO THE -- THE DIRECTOR OF NURSING AND WAS
5 BASICALLY TOLD TO DO WHAT DR. WEITZEL TOLD HER TO DO.
6 AND THAT THE REASON I THOUGHT THAT WAS RELEVANT AND THE
7 REASON I WANTED TO BRING IT IN TODAY IS BECAUSE SUBSEQUENT
8 NURSES WHO DEALT WITH THE PATIENTS THAT -- AND THE VICTIMS
9 WE'RE TALKING ABOUT IN THIS TRIAL DIDN'T GO UP THE CHAIN
10 BECAUSE OF WHAT THEY HAD SEEN AND HEARD HAD HAPPENED TO
11 SHEILA MOORE.
12 AND SO THAT'S THE PROFFER OF HER TESTIMONY.
13 THE COURT: OKAY. AND WHAT I INDICATED AT THE
14 BENCH, TOO, WAS THAT IF THE OTHER WITNESSES WANT TO COME IN
15 AND TESTIFY, THE OTHER NURSES THAT WERE INVOLVED DURING THE
16 RELEVANT TIME PERIOD OF DECEMBER AND JANUARY, AND THEY WANT
17 TO LAY THE FOUNDATION THAT THE REASON THEY DIDN'T GO UP WAS
18 BECAUSE OF AN EXPERIENCE THAT THEY WERE AWARE OF, THEN I'M
19 MORE THAN LIKELY GOING TO ALLOW THAT IN IF THE FOUNDATION IS
20 LAID ABOUT THAT. SO THAT WAS THE RULING. THIS -- THIS --
21 MS. BARLOW: AND AS TO THE LAST QUESTION ABOUT THE
22 MORPHINE, WE OFFERED THAT TO SHOW THAT -- THAT THIS UNIT,
23 MORPHINE WAS NOT GIVEN ROUTINELY. THE ONLY TIME IT WAS
24 GIVEN WAS DURING THIS TIME PERIOD THAT WE'RE TALKING ABOUT.
25 BUT AGAIN, THAT'S MY PROFFER.
179
1 THE COURT: OKAY. THANK YOU.
2 OKAY. THIS -- I KNOW THIS MAY NOT HAVE BEEN
3 ANTICIPATED, BUT THIS IS KIND OF ONE OF THE TYPES OF ITEMS
4 THAT IF -- IF YOU CAN ANTICIPATE IN ADVANCE, YOU KNOW, THAT
5 WE COULD KIND OF ADDRESS BEFOREHAND WHEN THE JURY IS NOT
6 HERE, YOU KNOW, IT MIGHT BE HELPFUL, YOU KNOW.
7 AND TO THAT END, STARTING ON MONDAY DO WE KNOW WHO OUR
8 WITNESSES ARE GOING TO BE IN TERMS OF WHAT WE'RE DOING ON
9 MONDAY? AND I -- I DID MEAN -- I LIKE THE EXAMPLE -- I USED
10 TO -- I HAD TO LIVE -- I LIVED THREE YEARS IN SALT LAKE
11 COUNTY ABOUT OUT IN BENNION ABOUT 58 SOUTH AND 29TH WEST
12 AND -- AND ALL THE AIRPLANES JUST -- JUST LINED UP AND JUST
13 CAME, YOU KNOW, FLOATING IN. AND SO THAT'S THE WAY I WANT
14 TO SEE OUR WITNESSES, JUST ONE RIGHT AFTER ANOTHER.
15 MR. WILSON: DID YOU EVER TRY TO LINE UP ABOUT 10,
16 20 DOCTORS?
17 THE COURT: YEAH, THOSE ARE THE BIG PLANES.
18 MR. WILSON: ONE RIGHT AFTER ANOTHER, YOUR HONOR?
19 THE COURT: NO. WELL, ALL I'M SAYING IS THAT --
20 HAVING SAID THAT, IF -- IF THEY ALL CAN'T BE LINED UP ONE
21 RIGHT AFTER ANOTHER OF THE DOCTORS, WHOEVER CAN FILL IN. I
22 JUST DON'T WANT TO HAVE WHEN THE JURY'S HERE -- YOU KNOW, I
23 UNDERSTOOD TODAY. TODAY WAS TOTALLY ACCEPTABLE WITH WHAT
24 WE'RE DOING, BUT IF WE CAN --
25 MR. WILSON: I APPRECIATE THAT, JUDGE.
180
1 THE COURT: WHO DO YOU HAVE SET UP FOR MONDAY?
2 MR. WILSON: RIGHT NOW WE HAVE SET UP FOR MONDAY,
3 WE'D PROBABLY RECALL SHEILA HEWARD TO THE STAND. WE HAVE
4 TODD CHAMBERS, IT'S ANTICIPATED HE WILL TESTIFY. WE HAVE
5 DR. WELBY JENSEN, WHO WE'VE FLOWN IN FROM ALASKA, THAT WILL
6 TESTIFY. AND WE HAVE THE INVESTIGATOR IN THIS MATTER, JOE
7 MORRISON, JOSEPH MORRISON, WHO WILL TESTIFY.
8 NOW, I CAN'T ANTICIPATE HOW MUCH TIME THEY'LL TAKE
9 RIGHT NOW. IF IT'S GOING THE WAY IT'S GOING RIGHT AT THE
10 PRESENT TIME, I WOULD ANTICIPATE THAT WOULD BE SUFFICIENT
11 FOR THE DAY. BUT WE MAY HAVE OTHER PEOPLE LINED UP IN
12 ANTICIPATION, IF WE GET THROUGH WITH THOSE WITNESSES, YOUR
13 HONOR.
14 THE COURT: WELL, I WOULD SAY IT'S -- IF THERE IS
15 SOMEBODY THAT'S MORE LOCAL THAT'S NOT AN EXPERT THAT COULD
16 BE AVAILABLE, YOU KNOW, YOU COULD CALL SAY AT 2 O'CLOCK AND
17 SAY WE NEED YOU HERE AT 4:00, YOU KNOW, HAVE THOSE PEOPLE
18 LINED UP.
19 OKAY. IS THERE ANYTHING ELSE WE NEED TO DISCUSS WHILE
20 WE'RE HERE TODAY?
21 MR. STIRBA: JUST TWO SMALL HOUSEKEEPING MATTERS.
22 ONE, FOR THE EDIFICATION OF THE COURT, IT MAY -- MAY HELP
23 YOU. MR. WILSON AND I TALKED ABOUT THIS AND BASICALLY WE
24 HAVE AN UNDERSTANDING THAT AS FAR AS OUR TRIAL WITNESSES ARE
25 CONCERNED, HE'S GOING TO TELL ME THE NIGHT BEFORE WHO HIS
181
1 NEXT WITNESSES ARE GOING TO BE AND I'M GOING TO DO THE SAME
2 FOR HIM --
3 THE COURT: OKAY.
4 MR. STIRBA: -- WHEN WE START. IT MAKES IT EASIER
5 FOR BOTH OF US AND I -- I APPRECIATE THAT.
6 THE SECOND THING IS ON --
7 THE COURT: WELL, HAVING SAID THAT I -- I'LL STILL
8 ASK THE QUESTION AT THE END OF EACH DAY, SO --
9 MR. STIRBA: OKAY. ALL RIGHT. WELL, THAT'S FINE.
10 THE OTHER THING IS ON 404(B), I REALIZE THIS WAS A
11 LITTLE BIT UNUSUAL, BUT I THOUGHT THERE WAS A RULING THAT IF
12 WE'RE GOING TO GET INTO THAT AREA WE GET SOME ADVANCE
13 NOTIFICATION. I JUST WAS NOT AWARE OF THIS.
14 THE COURT: WELL, I THINK THAT IT WASN'T VIEWED BY
15 THE STATE NECESSARILY AS 404(B). THAT'S WHAT I SAID I WAS
16 GOING TO DO. WE HAD THE ONE PRETRIAL MOTION. IT WAS THE
17 ONE ABOUT MOTION FOR NOTICE IN ADVANCE OF 404(B) EVIDENCE,
18 AND FOR THE COURT TO ADOPT UNITED STATES VERSUS KENDALL.
19 AND, BASICALLY, AT THAT TIME IT SAID THE STATE -- WE
20 DIDN'T REALLY RESOLVE IT ON THE BASIS OF THE KENDALL CASE,
21 THE FEDERAL CASE. WE JUST SAID UNDER RULE 16.5 OF THE RULES
22 OF CRIMINAL PROCEDURE THAT THE STATE WOULD AGREE TO INFORM
23 COUNSEL FOR THE DEFENDANT BEFORE ATTEMPTING TO INTRODUCE ANY
24 404 EVIDENCE.
25 SO I'D SAY ANYTHING LIKE THIS THAT -- THAT WE KIND OF
182
1 ADDRESSED IN THIS MOTION, I WOULD SAY THAT THAT'S THE SPIRIT
2 OF WHAT I WAS TALKING ABOUT IN THAT ORDER THAT'S DATED
3 MAY 18TH.
4 MR. STIRBA: SURE. THANK YOU, JUDGE.
5 THE COURT: OKAY. ANYTHING ELSE?
6 MR. WILSON: STATE HAS NOTHING FURTHER.
7 THE COURT: OKAY. THEN WE'LL SEE YOU THEN AT 8:30
8 ON MONDAY.
9 MR. STIRBA: THANK YOU, YOUR HONOR.
10 (WHEREUPON, THE AFTERNOON SESSION ENDS.)
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183
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3 *****
4 STATE OF UTAH, )
)
5 PLAINTIFF, )
) REPORTER'S TRANSCRIPT
6 VS. )
) CASE NO. 991700983
7 ROBERT ALLEN WEITZEL, )
)
8 DEFENDANT. )
9 *****
10
11 TRIAL - VOLUME 2 OF 21
12 JUNE 12, 2000
13 HONORABLE THOMAS L. KAY
14
15 *****
16 APPEARANCES:
17 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
18 MS. CHARLENE BARLOW
19 FOR THE DEFENDANT: MR. PETER STIRBA
MR. JOHN WARREN MAY
20
21
22
23
24
25
184
1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 THE COURT: HAVE WE HEARD FROM THE PROSECUTOR?
3 THE CLERK: I HAVEN'T.
4 THE COURT: OKAY. APPARENTLY -- LET'S JUST WAIT
5 FOR THEM. THERE ARE A COUPLE OF MOTIONS THAT HAVE BEEN
6 FILED AND SOME ISSUES WE HAVE TO DISCUSS BEFORE THE JURY
7 COMES IN.
8 (PAUSE IN PROCEEDINGS.)
9 THE COURT: MS. BARLOW, ARE YOU READY TO DISCUSS
10 THIS ONE ISSUE REGARDING THESE HOSPITAL POLICIES BECAUSE I
11 UNDERSTOOD THAT ONE OF THE WITNESSES MAY BE DISCUSSING THOSE
12 AS THE FIRST THING?
13 MS. BARLOW: WELL, CONSIDERING THIS IS THE FIRST
14 WE'VE SEEN OF THE MEMORANDUM, I DON'T THINK WE'RE READY TO
15 DISCUSS IT AT THIS TIME.
16 THE COURT: OKAY. WELL, IS THERE -- WHAT I WAS
17 SUGGESTING -- AND I ASKED MY LAW CLERK TO TALK TO BOTH
18 COUNSEL -- WAS TO -- AS TO WHETHER OR NOT OTHER WITNESSES
19 COULD BE CALLED UNTIL WE COULD DISCUSS THAT.
20 MS. BARLOW: MR. WILSON IS HANDLING THE WITNESSES
21 TODAY AND HE'S WALKING IN.
22 THE COURT: OKAY. I HAVE RECEIVED A -- TWO MOTIONS
23 THIS MORNING. I RECEIVED THEM ABOUT FIVE MINUTES TO 8:00.
24 IT WAS DEFENDANT'S TRIAL MEMORANDUM REGARDING HOSPITAL
25 POLICIES AS INADMISSIBLE AND IRRELEVANT; AND A SECOND ONE
185
1 ENTITLED DEFENDANT'S TRIAL MEMORANDUM REGARDING LIMITING
2 SCOPE OF TESTIMONY OF PLAINTIFF'S EXPERTS DR. MICHAEL J.
3 CROOKSTON, DR. CHARLES STEVEN FEHLAUER, AND NURSE
4 KATHLEEN M. KAUFMAN.
5 WHAT I WAS HOPING TO DO IS -- I DON'T KNOW WHAT YOUR
6 WITNESSES ARE, BUT IF THEY IMPACT THESE MOTIONS, I WAS
7 HOPING THAT WE WOULD HAVE A TIME TO CALL A WITNESS THAT
8 WASN'T AFFECTED BY THESE MOTIONS, THEN WE WOULD HAVE A BREAK
9 WHERE WE COULD ARGUE THOSE OUTSIDE THE PRESENCE OF THE JURY.
10 MS. BARLOW: YOUR HONOR, WE DON'T SEE A COPY OF THE
11 SECOND ONE THAT YOU JUST MENTIONED.
12 MR. MAY: IT WAS MAILED ON FRIDAY.
13 MS. BARLOW: IT WAS MAILED ON FRIDAY?
14 MR. MAY: UH-HUH.
15 MS. BARLOW: TO WHO?
16 MR. MAY: TO BOTH YOU AND --
17 MS. BARLOW: HAVE YOU SEEN IT?
18 MR. WILSON: NO, WE HAVEN'T RECEIVED THE MAIL AS
19 YET THIS MORNING.
20 THE COURT: WELL, I DON'T BELIEVE ANY OF THOSE
21 PEOPLE ARE BEING -- I HAVE TWO COURTESY COPIES. I'M HAPPY
22 TO GIVE ONE -- WE CAN GET ONE TODAY. IT'S IN MY OFFICE. OR
23 IN FACT --
24 MS. BARLOW: YOUR HONOR, WE ALSO -- ALSO HAVE A
25 MOTION --
186
1 THE COURT: IN FACT, WHY DON'T WE HAND -- I'M JUST
2 HANDING YOU ONE OF THESE -- I GOT TWO COURTESY COPIES. I'VE
3 ASKED FOR THOSE IN THE PAST. AND SO THAT'S THE SECOND ONE.
4 MS. BARLOW: YOUR HONOR, WE HAVE A MOTION.
5 THE COURT: OKAY.
6 MS. BARLOW: INVOLVING TRANSCRIPTS.
7 THE COURT: OKAY. ALL RIGHT. SO AS IT RELATES TO
8 WITNESSES, ARE THERE WITNESSES THAT CAN BE CALLED THAT
9 AREN'T AFFECTED BY THIS MEMORANDUM ON HOSPITAL POLICIES?
10 MR. WILSON: YOUR HONOR, I THINK WE -- WE WILL BE
11 ABLE TO CALL THE FIRST TWO WITNESSES THIS MORNING; HOWEVER,
12 I WAS PLANNING ON RECALLING SHEILA HEWARD BACK TO THE STAND
13 FOR THAT PRECISE --
14 THE COURT: ISSUE?
15 MR. WILSON: -- PURPOSE.
16 THE COURT: OKAY. WELL, THEN WHAT WE COULD DO IS
17 IF WE CAN START WITH THE WITNESSES THEN WE CAN TAKE A BREAK
18 AT THE POINT WHEN YOU'VE HAD A CHANCE TO READ THROUGH THAT
19 AND THEN WE CAN DISCUSS THAT AT A BREAK SO THAT WE CAN
20 RESOLVE THAT ISSUE BEFORE THE WITNESS IS CALLED.
21 OKAY. IS EVERYONE READY TO PROCEED THEN?
22 MR. STIRBA: WE'RE READY, YOUR HONOR. THANK YOU.
23 THE COURT: IS THE PLAINTIFF READY TO PROCEED?
24 MR. WILSON: YOUR HONOR, COULD I HAVE JUST A
25 MINUTE?
187
1 THE COURT: YES.
2 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
3 MR. WILSON: YOUR HONOR, IF I MIGHT BE EXCUSED?
4 THE COURT: OKAY. THE OTHERS WILL TAKE CARE OF
5 THESE WITNESSES?
6 MR. WILSON: YEAH, THEY WILL.
7 MR. MAJOR: AND I THINK WE ARE PREPARED WITH OUR
8 FIRST WITNESS.
9 THE COURT: OKAY. AND WOULD YOU NOTIFY THE JURY
10 THEN, PLEASE, MR. WILLIAMS, TO COME IN? YEAH. WE CAN HAVE
11 THE JURY COME IN.
12 (WHEREUPON, AT THIS TIME THE JURY ENTERS THE COURTROOM,
13 AFTER WHICH PROCEEDINGS RESUME IN THE HEARING OF THE JURY,
14 AS FOLLOWS:)
15 THE COURT: WE ARE BACK FROM LAST WEEK IN THE CASE
16 OF STATE OF UTAH VERSUS ROBERT ALLEN WEITZEL, AND COUNSEL
17 FOR THE PARTIES ARE PRESENT, AS WELL AS THE DEFENDANT. THE
18 JURY IS ALL PRESENT.
19 LADIES AND GENTLEMEN, THANK YOU FOR BEING ON TIME. WE
20 HAD SOMETHING WE HAD TO DISCUSS AND AT ONE OF THE BREAKS
21 TODAY -- WHEN YOU HAVE A BREAK WE HAVE SOME LEGAL MATTERS
22 THAT I WILL DISCUSS WITH THE ATTORNEYS AND WE WERE JUST
23 DISCUSSING THE SCHEDULING OF THAT AND THAT'S WHY WE DIDN'T
24 START RIGHT AT 8:30. BUT WE'RE READY TO BEGIN NOW. I
25 APPRECIATE YOU BEING HERE ON TIME.
188
1 COUNSEL, WOULD YOU LIKE TO CALL YOUR NEXT WITNESS?
2 MR. MAJOR: WE WOULD CALL TODD CHAMBERS TO THE
3 STAND, YOUR HONOR.
4 THE COURT: IF YOU'D LIKE TO COME FORWARD TO THE
5 CLERK AND BE SWORN, PLEASE.
6 TODD CHAMBERS,
7 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
8 AS FOLLOWS:
9 DIRECT EXAMINATION
10 BY MR. MAJOR:
11 Q. COULD YOU PLEASE STATE YOUR FULL NAME FOR THE RECORD?
12 A. TODD MARTIN CHAMBERS.
13 Q. AND MR. CHAMBERS, I'D LIKE TO RECALL YOUR ATTENTION BACK
14 TO A PERIOD OF TIME AROUND DECEMBER OF 1995 AND ASK YOU
15 WHERE WERE YOU EMPLOYED AROUND THAT PARTICULAR PERIOD OF
16 TIME?
17 A. I WORKED FOR HORIZON MENTAL HEALTH MANAGEMENT AT DAVIS
18 HOSPITAL.
19 Q. OKAY. AND WHAT WERE YOUR SPECIFIC DUTIES AT THAT TIME?
20 A. I WAS THE PROGRAM DIRECTOR FOR THE GERIATRICS --
21 GERIATRIC PSYCHIATRY INPATIENT UNIT. MY MAIN
22 RESPONSIBILITIES WERE TO PROVIDE LEADERSHIP FOR THE PROGRAM,
23 BOTH CLINICAL LEADERSHIP AS WELL AS ADMINISTRATIVE OR
24 FINANCIAL LEADERSHIP, AND ALSO TO -- TO REALLY MEET -- TO
25 SERVE THE CUSTOMER, THE CLIENT HOSPITAL.
189
1 Q. OKAY. THANK YOU. NOW, I'D LIKE TO GET INTO A LITTLE
2 BIT ABOUT YOUR TRAINING AND BACKGROUND PRIOR TO GETTING INTO
3 SOME DETAILS ABOUT YOUR WORK THERE. DID YOU GRADUATE FROM
4 COLLEGE?
5 A. YES.
6 Q. AND WHERE -- WHEN DID -- WHERE DID YOU GRADUATE?
7 A. FROM BRIGHAM YOUNG UNIVERSITY AND SAN DIEGO STATE
8 UNIVERSITY.
9 Q. OKAY. AND WHAT YEARS DID YOU GRADUATE?
10 A. I GRADUATED FROM B.Y.U. IN -- GEE, WHAT WAS IT?
11 Q. APPROXIMATELY HOW LONG --
12 A. 1986.
13 Q. IN WHAT DID YOU GRADUATE?
14 A. HAD A BACHELOR'S DEGREE IN SOCIOLOGY AND A MINOR DEGREE
15 IN GERONTOLOGY.
16 Q. OKAY. AND THEN FROM B.Y.U. DID YOU GO TO SAN DIEGO?
17 A. YEAH. TO SAN DIEGO STATE AND I GRADUATED FROM THERE IN
18 1989 WITH A MASTER'S DEGREE IN CLINICAL SOCIAL WORK.
19 Q. OKAY. AND AFTER GRADUATING FROM SAN DIEGO STATE, DID
20 YOU FIND EMPLOYMENT?
21 A. YES, I DID.
22 Q. WHERE DID YOU WORK?
23 A. I DON'T HAVE MY RESUME IN FRONT OF ME, BUT AS I RECALL,
24 I FIRST -- MY FIRST JOB WAS FOR CHARTER HOSPITAL IN -- OF
25 SAN DIEGO. I WORKED THERE FOR APPROXIMATELY A YEAR AND A
190
1 HALF OR TWO YEARS.
2 Q. AND WHAT WERE YOUR GENERAL DUTIES THERE?
3 A. I WAS A PSYCHIATRIC SOCIAL WORKER AND WAS RESPONSIBLE
4 FOR ASSESSMENTS -- PSYCHOSOCIAL ASSESSMENTS, PSYCHOTHERAPY,
5 FAMILY THERAPY, THAT SORT OF THING.
6 Q. OKAY. AND WHERE DID YOU GO FROM SAN DIEGO?
7 A. TO CHEYENNE MESA IN COLORADO SPRINGS. IT'S A --
8 Q. AND WHAT WERE YOUR DUTIES THERE?
9 A. I WAS A SENIOR MENTAL HEALTH CLINICIAN.
10 Q. AND WHAT WERE YOUR DUTIES AS A CLINICIAN?
11 A. TO PROVIDE -- AGAIN, CONDUCT PSYCHOSOCIAL ASSESSMENTS,
12 TREATMENT -- OVERSEE THE TREATMENT PLANNING PROCESS, AS WELL
13 AS CONDUCTING -- CONDUCTING INDIVIDUAL GROUP AND FAMILY
14 THERAPY.
15 Q. WHERE DID YOU GO FROM THERE?
16 A. FROM THERE I CAME TO BENCHMARK HOSPITAL -- YEAH, I THINK
17 THAT'S -- TO BENCHMARK HOSPITAL RIGHT OVER HERE IN WOODS
18 CROSS.
19 Q. AND WHAT WERE YOUR DUTIES AT BENCHMARK?
20 A. I WAS THE DIRECTOR OF SOCIAL SERVICES THERE. AND HERE
21 AGAIN, I WAS RESPONSIBLE FOR CONDUCTING PSYCHOSOCIAL
22 ASSESSMENTS, TREATMENT PLANNING, INDIVIDUAL GROUP AND FAMILY
23 THERAPY AND MULTIFAMILY THERAPY, AS WELL AS SUPERVISION OF
24 OTHER CLINICIANS.
25 Q. OKAY. AND THEN FROM BENCHMARK DID YOU GO TO DAVIS?
191
1 A. NOT EXACTLY. I WORKED FOR A BRIEF TIME FOR RAMSAY
2 HEALTH CARE WHICH WAS THE PARENT COMPANY OF BENCHMARK
3 HOSPITAL AT THE TIME. AND I DID A NUMBER OF THINGS FOR
4 THEM. I SET UP GERO -- GEROPSYCH UNITS, I WROTE POLICIES
5 AND PROCEDURES FOR THEIR GERIATRIC PSYCHIATRY PROGRAMS.
6 Q. OKAY. AND WHAT HAPPENED AFTER THAT? WHERE DID YOU GO?
7 A. THEN FROM THERE I WENT TO WORK FOR HORIZON AT DAVIS
8 HOSPITAL.
9 Q. OKAY. NOW, YOU'VE MENTIONED THAT PART OF THIS WORK
10 BACKGROUND THAT YOU HAD THAT YOU DID PSYCHOSOCIAL
11 EVALUATIONS?
12 A. UH-HUH.
13 Q. FOR THE JURY'S BENEFIT, CAN YOU EXPLAIN WHAT THOSE ARE?
14 A. A PSYCHOSOCIAL EVALUATION IS AN ASSESSMENT OF A PERSON'S
15 CONDITION. YOU LOOK AT THEIR -- THEIR MENTAL STATUS, ANY
16 PSYCHIATRIC SYMPTOMS THEY MAY BE EXPERIENCING. YOU TRY TO
17 DOCUMENT THOSE AND UNDERSTAND THE NATURE AND EXTENT OF THOSE
18 SYMPTOMS, AS WELL AS LOOKING INTO THEIR -- THEIR COMMUNITY
19 SUPPORT, THEIR FAMILY SUPPORT, MEDICAL CONDITION, THEIR --
20 THEIR FAMILY HISTORY FOR MENTAL ILLNESS, DRUG HISTORY, LEGAL
21 HISTORY. IT'S A FAIRLY BROAD ASSESSMENT WITH -- WITH
22 PARTICULAR EMPHASIS ON THEIR PSYCHIATRIC FUNCTIONING OR
23 THEIR MENTAL HEALTH FUNCTIONING.
24 Q. AND WHY ARE THESE DONE?
25 A. WELL, THEY'RE REALLY DONE -- IN ORDER TO TREAT PATIENTS
192
1 EFFECTIVELY YOU HAVE TO HAVE A GOOD ASSESSMENT SO YOU CAN
2 HAVE -- SO YOU CAN UNDERSTAND THE -- IT'S REALLY TO HELP
3 UNDERSTAND THE NATURE OF THE PROBLEM. AND AFTER YOU
4 UNDERSTAND THE NATURE OF THE PROBLEM, THEN YOU CAN DEVELOP A
5 TREATMENT PLAN THAT IS FOCUSSED AND PROCEED WITH ACTIVE
6 TREATMENT.
7 Q. OKAY. AND DURING THIS PERIOD OF TIME, DID YOU WORK WITH
8 DOCTORS, PSYCHIATRISTS?
9 A. THE WHOLE TIME.
10 Q. THE WHOLE TIME. THANK YOU. AND DURING THIS PERIOD OF
11 TIME PRIOR TO COMING TO -- TO THE DAVIS HOSPITAL, DID YOU
12 HAVE AN OPPORTUNITY TO WORK WITH ELDERLY PATIENTS?
13 A. YES, I DID.
14 Q. AND HOW -- HOW MUCH OF YOUR PRACTICE -- OR I SHOULD SAY
15 YOUR WORK WAS INVOLVED WITH ELDERLY PATIENTS?
16 A. OH, I'D SAY MAYBE 25 PERCENT PRIOR TO WORKING FOR
17 RAMSAY; AND THEN 100 PERCENT; AND THEN OBVIOUSLY 100 PERCENT
18 WITH -- AT DAVIS HOSPITAL.
19 Q. DAVIS HOSPITAL. AND IN DEALING WITH THESE ELDERLY
20 PATIENTS, WHAT WAS THEIR GENERAL MENTAL PROBLEMS THAT YOU
21 WERE DEALING WITH?
22 A. VARIETY OF PROBLEMS: DEPRESSION, ANXIETY, AGITATION,
23 PSYCHOTIC PROBLEMS.
24 Q. ALZHEIMER'S?
25 A. YES.
193
1 Q. AND ALL OF THE -- ALL OF THE -- I UNDERSTAND ALZHEIMER'S
2 IS A FAIRLY LARGE CATEGORY.
3 A. YEAH.
4 Q. BUT YOU DEALT WITH THAT AS WELL?
5 A. UH-HUH.
6 Q. OKAY. NOW, DO YOU REMEMBER APPROXIMATELY WHEN IT WAS
7 THAT YOU BEGAN WORKING AT DAVIS NORTH, DAVIS MENTAL --
8 MEDICAL CENTER?
9 A. I BELIEVE IT WAS IN MARCH OF 1995.
10 Q. AND CAN YOU DESCRIBE THIS UNIT? WHAT WAS THE NATURE OF
11 THE UNIT?
12 A. IT WAS A GERIATRIC PSYCHIATRIC INPATIENT UNIT. WE
13 CALLED IT A GEROPSYCH UNIT. AND IT WAS SPECIFICALLY
14 DESIGNED TO MEET THE PSYCHIATRIC NEEDS OF THE ELDERLY
15 POPULATION.
16 Q. OKAY. AND WHAT TYPE OF CARE DID IT PROVIDE?
17 A. A COMBINATION OF MEDICAL AND PSYCHIATRIC CARE --
18 PRIMARILY PSYCHIATRIC CARE, INDIVIDUAL THERAPY, GROUP
19 THERAPY, FAMILY THERAPY, MEDICATIONS, ET CETERA.
20 Q. OKAY. HOW LARGE -- HOW LARGE OF A UNIT WAS IT? DO YOU
21 RECALL?
22 A. I BELIEVE IT WAS A TEN-BED UNIT.
23 Q. AND HOW WERE THE PATIENTS SELECTED TO COME ONTO THIS
24 UNIT?
25 A. HOW WERE THEY SELECTED?
194
1 Q. YEAH. HOW DID -- HOW DID IT COME ABOUT THAT THE
2 PATIENTS WOULD COME ON THIS UNIT?
3 A. NORMALLY -- WELL, FIRST OF ALL, WE HAD A STAFF. WE HAD
4 AN ADMISSION COORDINATOR AND HE AND MYSELF, PRIMARILY, WERE
5 INVOLVED IN LETTING -- LETTING REFERRAL SOURCES IN THE
6 COMMUNITY KNOW ABOUT THE PROGRAM. AND THEN AS THOSE
7 REFERRAL SOURCES THOUGHT THAT THEY HAD A PATIENT WHO MAY --
8 WHO THEY WERE HAVING DIFFICULTY WITH THAT MAY QUALIFY FOR
9 THE PROGRAM, THEY WOULD CALL US.
10 WE WOULD TAKE DOWN SOME INITIAL INFORMATION AND THEN WE
11 WOULD GO OUT TO THE -- THE PERSON'S HOME WITH -- TO THE
12 NURSING HOME, COULD BE TO A -- COULD HAVE BEEN TO A
13 COMMUNITY CENTER, VARIETY OF PLACES. AND WE'D DO A -- WE'D
14 DO AN INITIAL ASSESSMENT WHICH WAS KIND OF LIKE AN
15 ABBREVIATED PSYCHOSOCIAL ASSESSMENT THAT I DESCRIBED
16 EARLIER. IF WE FOUND PSYCHIATRIC IMPAIRMENT THAT SEEMED TO
17 BE WITHIN THE BALLPARK OF WHAT WOULD CONSTITUTE A PROPER
18 ADMISSION TO THE PROGRAM, THEN WE WOULD CONTACT THE
19 ATTENDING PHYSICIAN, RUN -- GIVE A SUMMARY OF THOSE
20 FINDINGS, AND THEN WE WOULD EITHER -- THEN THE ATTENDING
21 PHYSICIAN WOULD MAKE A DECISION WHETHER TO ADMIT OR NOT.
22 Q. OKAY. AND SO YOU WERE ACTUALLY INVOLVED IN GOING OUT
23 AND MEETING WITH PATIENTS?
24 A. YES, I WAS, FROM -- FROM TIME TO TIME. IT WAS NOT MY
25 PRIMARY RESPONSIBILITY, BUT I DID A FAIR AMOUNT OF IT.
195
1 Q. OKAY. WHAT WAS YOUR PRIMARY RESPONSIBILITY WITH THE
2 UNIT?
3 A. WELL, I HAD TO OVERSEE THE WHOLE OPERATION. SO I HAD TO
4 COORDINATE THE -- MAKE SURE THE ADMISSION COORDINATOR WAS
5 DOING WHAT HE SHOULD HAVE DONE, COORDINATE WITH THE
6 HOSPITAL, COORDINATE THINGS WITH THE CHARGE NURSE, THE -- AS
7 WELL AS THE -- THE SOCIAL WORKERS AND CLINICIANS TO MAKE
8 SURE THAT WE WERE MEETING THE NEEDS OF THE PATIENT.
9 Q. OKAY. NOW, YOU MENTIONED IN THE BEGINNING THAT YOU WERE
10 ACTUALLY WORKING FOR ANOTHER -- FOR ANOTHER COMPANY. WHAT
11 WAS THE NAME OF THAT COMPANY?
12 A. RAMSAY HEALTH CARE.
13 Q. OKAY. AND THEN WHAT WERE THE CIRCUMSTANCES OF YOUR
14 COMING TO DAVIS HOSPITAL?
15 A. I WAS CONTACTED BY A HORIZON PERSON AND I -- I KNEW
16 SEVERAL EMPLOYEES AT DAVIS HOSPITAL FROM MY WORK AT
17 BENCHMARK HOSPITAL, AND THEY HAD RECOMMENDED ME. AND SO
18 HORIZON CONTACTED ME AND INTERVIEWED ME AND OFFERED ME THE
19 JOB. I ACCEPTED THE JOB.
20 Q. OKAY. NOW, YOU MENTIONED THAT IT WAS HORIZONS WHO HIRED
21 YOU. CAN YOU EXPLAIN A LITTLE BIT ABOUT HORIZONS, WHAT
22 HORIZONS IS -- OR WAS, I GUESS?
23 A. SURE. HORIZON -- HORIZON MENTAL HEALTH MANAGEMENT, SO
24 HORIZON IS SHORT FOR HORIZON MENTAL HEALTH MANAGEMENT,
25 WAS -- WAS EXPERT IN SETTING UP THESE GERIATRIC PSYCHIATRY
196
1 INPATIENT UNITS. AND SO THEY WOULD PULL TOGETHER THE
2 STRUCTURE FOR THE PROGRAM, THEY'D HIRE SOME OF THE
3 EMPLOYEES. THEY WERE NORMALLY -- THEY WERE NORMALLY -- THEY
4 WERE HIRED BY THE HOSPITAL TO HELP SET UP THE PROGRAM. THE
5 HOSPITAL HAD EMPLOYEES AND HORIZON HAD EMPLOYEES AND
6 TOGETHER THEY FORMED A TEAM AND RAN THE UNIT.
7 Q. OKAY. SO YOU ACTUALLY WORKED FOR HORIZONS; IS THAT
8 CORRECT?
9 A. THAT'S TRUE.
10 Q. AND CAN YOU GET INTO A LITTLE MORE DETAIL? WHAT WAS THE
11 RELATIONSHIP BETWEEN HORIZONS THEN AND DAVIS HOSPITAL?
12 A. HORIZON WAS -- WAS THERE TO RUN THE UNIT AND HELP
13 SUPPORT THE HOSPITAL. IT WAS THE HOSPITAL'S -- IT WAS THE
14 HOSPITAL'S PROGRAM.
15 Q. OKAY. SO THEY WERE KIND OF LIKE INDEPENDENT
16 CONTRACTORS?
17 A. SURE.
18 Q. OF THAT NATURE. AND WHAT TYPE OF STAFFING DID THEY HAVE
19 AT THE -- ON THE UNIT?
20 A. WELL, THERE WAS A PROGRAM DIRECTOR, THERE WAS ONE OR TWO
21 SOCIAL WORKERS, THERE WAS A COMMUNITY RELATIONS PERSON WHO
22 DID THE MAJORITY OF THESE ASSESSMENTS. AND THE -- AND
23 THEY -- AND THEN THERE WAS THE -- HORIZON HAD A RELATIONSHIP
24 WITH A MEDICAL DIRECTOR AND ASSOCIATE MEDICAL DIRECTOR AS
25 WELL.
197
1 Q. OKAY. AND WERE THEY USUALLY THE PSYCHIATRISTS?
2 A. YES.
3 Q. AND WHAT ABOUT THE NURSING STAFF AND THOSE TYPE OF
4 STAFFS? WHO ACTUALLY HIRED THOSE?
5 A. THE NURSING STAFF WERE HOSPITAL EMPLOYEES.
6 Q. OKAY. WERE THERE ANY OTHER HOSPITAL EMPLOYEES THAT
7 WORKED ON THE UNIT, OTHER THAN THE NURSING STUFF?
8 A. OH, YES. THERE WERE NURSING AIDES, THERE WERE KIND OF
9 AUXILLIARY SERVICES, PHYSICAL THERAPY AND A NUMBER OF
10 OTHER -- NUTRITION. ALL THESE WERE HOSPITAL EMPLOYEES. SO
11 IF WE NEEDED A PHYSICAL THERAPY CONSULT OR A NUTRITION
12 CONSULT OR OCCUPATIONAL THERAPY CONSULT, THESE OTHER
13 DEPARTMENTS OF THE HOSPITAL WOULD PROVIDE, YOU KNOW, THE --
14 THOSE EMPLOYEES WOULD COME AND HELP AS WELL.
15 Q. OKAY. DO YOU RECALL FROM YOUR WORKING ON THE -- ON THE
16 PARTICULAR UNIT WHEN THIS UNIT WAS ACTUALLY FORMED?
17 A. I BELIEVE IT WAS FORMED IN THE FALL OF 1994.
18 Q. OKAY. AND WHO WAS THE -- WHEN YOU FIRST BEGAN ON THIS
19 UNIT, WHO WAS THE INITIAL DOCTOR WORKING ON THE UNIT?
20 A. DR. JENSEN WAS -- DR. WELBY JENSEN WAS THE MEDICAL
21 DIRECTOR.
22 Q. OKAY. AND WHAT WAS HIS DUTIES ON THE UNIT?
23 A. WELL, AS THE MEDICAL DIRECTOR HE RECEIVED -- HE HAD SOME
24 ADMINISTRATIVE DUTIES, BUT PRIMARILY HE SERVED AS THE
25 ATTENDING PHYSICIAN WHO ADMITTED PATIENTS AND TREATED
198
1 PATIENTS AND SUPERVISED THE TREATMENT OF THE PATIENTS.
2 Q. OKAY. AND HOW LONG DID HE REMAIN ON THE UNIT? DO YOU
3 RECALL?
4 A. NO, I DON'T RECALL THE EXACT DATE. HE WAS STILL SEEING
5 PATIENTS WHEN I WAS THERE. HE -- I WOULD -- I WOULD GUESS
6 SOMETIME WITHIN -- THERE WAS A TRANSITION PERIOD WHEN
7 DOCTOR -- WHEN I CAME IN AND DR. JENSEN WAS KIND OF PHASING
8 OUT, AS I RECALL.
9 Q. AND WAS THERE A PERIOD OF TIME WHEN DR. WEITZEL BECAME
10 ON THE UNIT?
11 A. YES.
12 Q. DO YOU RECALL WHEN THAT WAS?
13 A. IT WAS AT -- I DON'T RECALL THE EXACT TIME. I THINK
14 DR. WEITZEL STARTED IN AND AROUND THE TIME THAT I WAS HIRED,
15 BUT I BELIEVE THERE WAS A TRANSITION WHERE BOTH DR. JENSEN
16 AND DR. WEITZEL WERE SEEING PATIENTS AT THE SAME TIME.
17 Q. OKAY. WERE YOU INVOLVED IN THE HIRING OF DR. WEITZEL OR
18 HAVING --
19 A. I WAS -- I WAS PERIPHERALLY. I BELIEVE MY PREDECESSOR
20 PROGRAM DIRECTOR WAS MORE INVOLVED. I REMEMBER GOING OUT TO
21 A RESTAURANT WITH DR. WEITZEL AND MY BOSS JUST -- JUST PRIOR
22 TO HIS COMING ON.
23 Q. OKAY. WHAT WERE THE REASONS AND CIRCUMSTANCES OF
24 DR. WEITZEL COMING ONTO THE UNIT?
25 A. WE NEEDED ANOTHER ATTENDING PHYSICIAN.
199
1 Q. AND WHY WAS THAT?
2 A. BECAUSE DR. JENSEN -- COUPLE OF REASONS. DR. JENSEN WAS
3 BURNED OUT, HE WAS TIRED. HE HAD A FULL TIME DAY JOB AND HE
4 WAS WORKING DAY AND NIGHT AND COULDN'T -- YOU KNOW, IT WAS
5 TOO MUCH OF A LOAD. WE NEEDED ANOTHER ATTENDING PHYSICIAN
6 TO SHARE THE LOAD.
7 Q. OKAY. AND DO YOU KNOW HOW LONG -- HOW LONG IT WAS
8 APPROXIMATELY THAT THERE WAS THIS JOINT WORKING
9 RELATIONSHIP?
10 A. I -- I DON'T REMEMBER SPECIFICALLY. I MEAN, IT COULD
11 HAVE BEEN ONE MONTH, IT COULD HAVE BEEN THREE MONTHS.
12 Q. THERE DID COME A TIME THOUGH WHEN DR. WEITZEL TOOK OVER
13 COMPLETELY ON THE UNIT?
14 A. WELL, HE -- YES, THERE WAS. I THINK DR. JENSEN ALWAYS
15 WAS A BACK UP. I THINK THE MAJORITY OF THE TIME DR. JENSEN
16 HAD ONE OR TWO PATIENTS. THERE MAY HAVE BEEN A TIME WHEN
17 DR. WEITZEL HAD ALL OF THE PATIENTS, BUT IT SEEMED LIKE
18 DR. JENSEN HAD PERIPHERAL INVOLVEMENT MUCH OF THE TIME.
19 Q. OKAY. NOW, GETTING BACK A LITTLE BIT TO THE FUNCTIONING
20 OF THIS PARTICULAR UNIT, WHEN A PATIENT WOULD COME ONTO THE
21 UNIT, WHAT WAS THE USUAL LENGTH OF STAY?
22 A. OUR AVERAGE LENGTH OF STAY WAS AROUND 14 DAYS, 10 TO 14
23 DAYS, AS I RECALL.
24 Q. OKAY. WAS THERE ANY LIMIT ON THAT PARTICULAR TIME
25 FRAME?
200
1 A. NOT REALLY. IT WAS DRIVEN PRIMARILY BY THE -- THE
2 PATIENT'S CLINICAL NEED.
3 Q. OKAY. AND YOU INDICATED A LITTLE BIT ABOUT WHAT THE
4 STEPS WERE IT WOULD TAKE TO GET A PATIENT ON THE UNIT. WHO
5 WOULD INITIALLY MAKE THE CONTACT WITH THE PATIENT?
6 A. NORMALLY THAT WOULD BE KEITH PERRY OR MYSELF. PRIMARY
7 KEITH. HE'D -- AS I MENTIONED, THE NURSING HOME MAY CALL,
8 THEY MAY HAVE A PATIENT THAT WAS EXPERIENCING SOME PROBLEMS.
9 THEY'D CALL US, ASK US TO COME OUT AND -- AND DO AN
10 ASSESSMENT. KEITH PRIMARILY WOULD GO OUT AND DO THE
11 ASSESSMENT.
12 Q. OKAY. AND -- BUT YOU WERE ALSO INVOLVED IN DOING THE
13 ASSESSMENTS.
14 A. ABSOLUTELY.
15 Q. WAS THERE ANY CRITERIA OR ANY SPECIFIC THINGS THAT YOU
16 WERE TRAINED TO DO WHEN MAKING THESE ASSESSMENTS?
17 A. WELL, YEAH. THAT WAS -- YOU KNOW, WE'D TRY TO GET TO
18 THE -- TRIED TO DO THE PSYCHO -- YOU KNOW, WE CALLED THEM
19 INTAKE OR AN -- AN INITIAL ASSESSMENT, BUT ESSENTIALLY IT
20 WAS VERY SIMILAR TO THE PSYCHOSOCIAL ASSESSMENT I DESCRIBED.
21 WE NEEDED TO -- TO REALLY IDENTIFY WERE THEIR PSYCHIATRIC
22 SYMPTOMS THAT WERE AMENABLE TO INPATIENT TREATMENT.
23 Q. UH-HUH.
24 A. AND OTHER CIRCUMSTANCES.
25 Q. AND DID YOU -- DID YOU OR MR. PERRY ACTUALLY GO OUT AND
201
1 I GUESS RECRUIT PATIENTS? I MEAN, HOW DID THAT ALL WORK?
2 HOW DID YOU --
3 A. WE DIDN'T RECRUIT PATIENTS. WE ASSESSED PATIENTS.
4 Q. WHAT I'M GETTING AT IS HOW WOULD THE NURSING HOME LEARN
5 ABOUT THE PARTICULAR UNIT OR, YOU KNOW, HOW WOULD THAT
6 HAPPEN?
7 A. OH, ABSOLUTELY. WE -- WE WERE GOING OUT. WE'D DO --
8 WE'D CONDUCT IN-SERVICES FOR PHYSICIANS' STAFFS, FOR THE
9 COMMUNITY -- THE COMMUNITY CENTER, ELDERLY CENTER -- SENIOR
10 CENTER, I GUESS YOU CALL THEM. WE'D GO TO THE NURSING
11 HOMES. WE WOULD DO A LOT OF EDUCATION IN THE COMMUNITY TO
12 HELP MAKE PEOPLE AWARE OF THIS GROWING SEGMENT OF OUR
13 POPULATION AND THE PSYCHIATRIC PROBLEMS THAT THEY MAY BE
14 RECEIVING.
15 AND SO WE WERE -- MOST OF THEM CONSIDERED US KIND OF A
16 VALUE-ADDED SERVICE TO HELP THEM DEAL WITH PATIENTS THAT
17 WERE HAVING PROBLEMS.
18 Q. OKAY. NOW, GOING BACK A LITTLE BIT BACK TO THE INITIAL
19 INTAKE FOR THESE PATIENTS, AS YOU INDICATED, YOU AND KEITH
20 PERRY WOULD GO OUT WITH THEM. WHEN YOU WOULD FIRST GO OUT
21 TO MEET WITH A PATIENT, JUST AS KIND OF AN OVERALL
22 SITUATION, WHAT WOULD INITIALLY BE THE FIRST THINGS THAT YOU
23 WOULD DO?
24 A. WELL, AS I RECALL, WE'D TALK TO THE -- IF IT WAS AT A
25 PERSON'S HOME, WE'D TALK TO THE FAMILY MEMBER THAT WAS WITH
202
1 THEM. IF IT WAS IN A NURSING HOME, WE'D TALK TO THE
2 STAFF, WE'D TALK TO THE -- THE NURSING STAFF. WE'D TALK TO
3 THE -- THE PERSON THAT INITIATED CONTACT WITH US, TRY AND
4 GET A LITTLE MORE -- YOU KNOW, THEY'D GIVE US SOME GENERAL
5 INFORMATION OVER THE TELEPHONE, AND THEN WE'D COME OUT AND
6 WANT TO KIND OF CONFIRM WHAT THEY'D SAID OVER THE PHONE, GET
7 A LITTLE BIT MORE -- MORE -- MORE INFORMATION ABOUT THE
8 PATIENT AND THE SITUATION. THEN WE WOULD INTERVIEW THE
9 PATIENT AND TRY AND DETERMINE IF THEY WERE DEPRESSED, IF
10 THEY WERE ANXIOUS, IF THEY WERE PSYCHOTIC, IF THEY WERE
11 AGITATED, JUST WHAT WAS THEIR CONDITION, THEN WE'D -- AND
12 DOCUMENT THAT.
13 Q. WOULD YOU REVIEW MEDICAL RECORDS AND THOSE TYPE OF
14 THINGS?
15 A. YES.
16 Q. WHAT TYPE OF RECORDS WOULD YOU REVIEW?
17 A. WELL, IF IT WAS AT A NURSING HOME WE'D TAKE A LOOK AT
18 THE CHART, TRY AND -- YOU KNOW, IF SOMEONE HAD BEEN HAVING
19 SOME DIFFICULTY THEN NORMALLY THE -- THE MORE RECENT CHART
20 NOTES IN THE NURSING HOME RECORD WOULD INDICATE THAT THEY'D
21 BEEN HAVING DIFFICULTIES, SO IT'S KIND OF A GOOD CROSS
22 CHECK.
23 WE'D LOOK AT THE -- WE'D SCAN THE HISTORY AND PHYSICAL
24 THAT WAS DONE IN THE NURSING HOME. YOU KNOW, WE'D -- YOU'D
25 THUMB THROUGH THE CHART AND TRY AND SEE WHAT YOU -- YOU
203
1 KNOW, GET A BROADER UNDERSTANDING OF THIS PATIENT AND HOW
2 LONG THEY'D BEEN IN THE NURSING HOME OR THAT SORT OF THING.
3 Q. NOW, WHEN YOU WERE DOING THIS, WERE YOU MOSTLY CONCERNED
4 WITH THEIR MENTAL STATUS OR WERE THERE OTHER THINGS THAT YOU
5 WERE LOOKING AT WITH THESE PATIENTS?
6 A. THERE WERE OTHER THINGS. IT WAS -- MENTAL STATUS WAS
7 CERTAINLY WHERE MOST OF OUR TRAINING WAS AND UNDERSTANDING
8 THE MENTAL HEALTH PART OF THEIR FUNCTIONING. WE'D ALSO FIND
9 OUT ABOUT THEIR FAMILY SITUATION, WE'D FIND OUT ABOUT
10 THEIR -- ANY MEDICAL CONDITION OR MEDICAL ILLNESS THEY MAY
11 HAVE.
12 Q. OKAY. WOULD YOU MAKE ANY NOTES OF THE MEDICAL
13 CONDITIONS THEY HAD?
14 A. YES.
15 Q. WERE THERE ANY CRITERIA THAT -- THAT THE HOSPITAL HAD OR
16 THE UNIT HAD AS FAR AS MEDICAL CONDITIONS FOR THESE
17 PATIENTS?
18 A. YES. IN -- IN GENERAL, WE WANTED PATIENTS WHO WERE ABLE
19 TO BENEFIT FROM INPATIENT TREATMENT. IN OTHER WORDS, IF
20 THEIR MEDICAL CONDITIONS WERE SO SERIOUS THAT THEY WEREN'T
21 ABLE TO BENEFIT FROM PSYCHIATRIC TREATMENT THEN WE -- WE'D
22 PREFER TO -- WELL, NOT PREFER. WE NEEDED TO GET THOSE
23 MEDICAL SITUATIONS STABILIZED BEFORE -- SO THAT THEY COULD
24 THEN COME AND PARTICIPATE IN ACTIVE PSYCHIATRIC TREATMENT.
25 Q. LET ME SHOW YOU WHAT'S BEEN MARKED FOR IDENTIFICATION AS
204
1 PLAINTIFF'S EXHIBIT NUMBER 2 AND ASK YOU IF YOU CAN IDENTIFY
2 THAT?
3 A. YES, I CAN.
4 Q. AND WHAT IS THAT?
5 A. DID YOU ASK ME A QUESTION?
6 Q. YEAH. I'M SORRY. DO YOU RECOGNIZE THAT?
7 A. YES.
8 Q. AND WHAT IS THAT?
9 A. IT'S THE -- IT'S THE INTAKE AND ADMISSION POLICY FROM
10 DAVIS HOSPITAL FOR THE GEROPSYCHIATRIC UNIT.
11 Q. OKAY. AND WAS -- AND WAS THAT THE INTAKE AND ADMISSION
12 POLICY THAT WAS IN FORCE AT THE TIME YOU WERE ON THE UNIT?
13 A. YES, IT WAS.
14 Q. NOW, PROBABLY FORGOT TO ASK YOU -- AND I BETTER DO THAT
15 RIGHT NOW. YOU WORKED ON THE UNIT YOU SAID SOME TIME FROM
16 MARCH OF '95. APPROXIMATELY WHAT TIME DID YOU LEAVE?
17 A. I BELIEVE IT WAS IN SEPTEMBER OF '96.
18 Q. OKAY. AND -- THANK YOU. NOW, GOING BACK TO THIS INTAKE
19 AND ADMISSIONS POLICY, DOES IT DESCRIBE WHAT THE ADMISSIONS
20 CRITERIA ARE?
21 A. YES.
22 Q. AND DOES IT ALSO INDICATE CERTAIN CRITERIA THAT WOULD BE
23 EXCLUSIONARY?
24 A. YES.
25 Q. IN OTHER WORDS, CRITERIA THAT WOULD KEEP THE PATIENT
205
1 FROM BEING ON THE UNIT.
2 A. YES.
3 Q. NOW, LET ME SHOW YOU A COPY --
4 MR. STIRBA: YOUR HONOR -- YOUR HONOR, I DON'T
5 BELIEVE IT'S BEEN OFFERED INTO EVIDENCE AS OF YET.
6 MR. MAJOR: YOUR HONOR, IF THAT'S THE CASE WE WOULD
7 MOVE TO --
8 MR. STIRBA: MAY I JUST VOIR DIRE, YOUR HONOR,
9 BRIEFLY?
10 MR. MAJOR: WELL, UNDER WHAT PARTICULAR AREA DO YOU
11 WANT TO VOIR DIRE ON? DO WE HAVE A FOUNDATIONAL PROBLEM
12 HERE OR --
13 MR. STIRBA: YEAH, WE DO. I WANT TO OBJECT AS TO
14 FOUNDATION.
15 MR. MAJOR: AND WHAT IS THE OBJECTION SPECIFICALLY?
16 MR. STIRBA: YOUR HONOR, I DON'T BELIEVE A COLLOQUY
17 WITH COUNSEL IS APPROPRIATE.
18 THE COURT: OKAY. WHAT -- OKAY. LAY A FOUNDATION.
19 MR. MAJOR: YOUR HONOR, THAT'S MY QUESTION. I'M
20 NOT SURE EXACTLY WHAT FOUNDATION WE NEED TO LAY. HE'S
21 INDICATED THAT HE WAS THE DIRECTOR OF THE UNIT, THAT THIS IS
22 THE POLICY THAT WAS IN EFFECT, THE POLICY THAT HE FOLLOWED
23 AT THE TIME OF THE GERIATRIC UNIT. I'M NOT SURE EXACTLY
24 WHAT --
25 THE COURT: I DON'T BELIEVE THERE'S BEEN ANY
206
1 TIME -- TIME WHEN THIS WAS USED, WHETHER IT WAS USED IN
2 DECEMBER OF '95 AND JANUARY OF '96.
3 MR. MAJOR: I'LL ASK HIM.
4 Q. (BY MR. MAJOR) WAS THIS USED DURING THE PERIOD OF TIME
5 THAT YOU WERE ON THE UNIT?
6 A. THE EFFECTIVE DATE OF THE POLICY IS JULY 1, '94, REVISED
7 JANUARY OF '96.
8 Q. SO THIS WAS THE POLICY THAT WAS IN EFFECT AT THE TIME
9 THAT YOU WERE ON THIS UNIT?
10 A. I -- I BELIEVE SO.
11 Q. THIS WAS THE POLICY THAT YOU AND KEITH PERRY AND THE
12 OTHER MEMBERS OF THE UNIT WOULD FOLLOW IN ADMITTING
13 PATIENTS?
14 A. I BELIEVE -- I BELIEVE SO.
15 MR. MAJOR: WITH THAT, YOUR HONOR, WE'D AGAIN MOVE
16 FOR THE ADMISSION OF EXHIBIT NUMBER 2.
17 MR. STIRBA: NO OBJECTION, YOUR HONOR.
18 THE COURT: IT'S RECEIVED.
19 Q. (BY MR. MAJOR) OKAY. LET ME SHOW YOU A COPY OF
20 WHAT -- YOU HAVE THE ACTUAL EXHIBIT, I ASSUME?
21 MS. BARLOW: YOUR HONOR, DO WE NEED TO TURN ON THE
22 T.V.'S?
23 THE COURT: YEAH. IF YOU DON'T TURN ON THE T.V.'S,
24 THAT WON'T SHOW UP. IT WILL ONLY SHOW ON THE SCREEN. I
25 THINK THERE'S A CONTROL THERE.
207
1 MS. BARLOW: OH, YOU'VE GOT THE REMOTE CONTROL.
2 THE COURT: OKAY. IS IT ON ALL THE SCREENS? OKAY.
3 GO AHEAD.
4 Q. (BY MR. MAJOR) SO MR. CHAMBERS, I'D LIKE TO AGAIN
5 REFER YOU, THIS IS A TRUE AND CORRECT COPY OF WHAT YOU HAVE
6 IN YOUR HAND; IS THAT CORRECT.
7 A. YES.
8 Q. AND SO WHAT ARE THE -- THE INITIAL FOUR CRITERIA IN
9 WHICH YOU WOULD -- THOSE FOUR CRITERIA WHICH YOU WOULD
10 ACCEPT A PATIENT FOR?
11 A. THE ADMISSION TO THE PROGRAM ARE INDICATED FOR PATIENTS
12 OVER 55 WHO HAVE A D.S.M.-IV DIAGNOSIS AND IN ADDITION MEET
13 ONE OR MORE OF THE FOLLOWING CRITERIA: SUICIDAL BEHAVIOR
14 AND/OR IDEATION -- DO YOU WANT ME TO READ THESE?
15 Q. I JUST -- JUST BRIEFLY. JUST --
16 THE COURT: IT MIGHT BE HELPFUL TO THE JURY IF
17 YOU'D EXPLAIN WHAT A D.S.M.-IV DIAGNOSIS IS.
18 MR. MAJOR: THAT WAS MY NEXT QUESTION.
19 Q. (BY MR. MAJOR) IF YOU COULD EXPLAIN WHAT THE D.S.M.-IV
20 IS.
21 A. D.S.M. STANDS FOR THE DIAGNOSTIC AND STATISTICAL MANUAL
22 OF MENTAL DISORDERS, 4TH EDITION. AND THIS IS THE -- IT'S
23 BASICALLY A MANUAL OR A HANDBOOK THAT LISTS ALL THE
24 PSYCHIATRIC DIAGNOSIS AND ALL OF THEIR CRITERIA, SO --
25 Q. OKAY. SO THE FIRST ONE -- FIRST CRITERIA THAT YOU --
208
1 THAT WOULD ALLOW A PATIENT TO BE ADMITTED TO WAS NUMBER ONE;
2 IS THAT CORRECT?
3 A. YES.
4 Q. AND WHAT IS THAT?
5 A. THE FIRST CRITERIA IS IN THE PARAGRAPH WHICH STATES THEY
6 HAVE TO HAVE -- THERE SHOULD BE REASONABLE EVIDENCE THAT
7 THERE'S A -- A PSYCHIATRIC DIAGNOSIS.
8 Q. RIGHT.
9 A. AND THEN IN ADDITION TO THAT, ONE OF THE FOLLOWING FOUR
10 THINGS.
11 Q. OKAY. AND THEY ALSO HAVE TO BE OVER 65 YEARS OF AGE.
12 A. YEAH, 55, I BELIEVE.
13 Q. FIFTY-FIVE. I'M SORRY. I CAN'T READ THAT. SO WE HAVE
14 AN AGE LIMIT, DIAGNOSTIC REQUIREMENT, AND THEN THOSE FOUR.
15 A. YEAH, AND THEN ONE OF THE FOUR WHICH -- SUICIDAL
16 BEHAVIOR OR IDEATION, ASSAULTIVE BEHAVIOR, POTENTIAL FOR
17 SELF-MUTILATION, AND ACUTE ONSET OR INTENSIFICATION OF SOME
18 OF THEIR SYMPTOMS THAT'S DISRUPTIVE TO THEIR LIFESTYLE.
19 Q. NOW, NUMBER FOUR, THAT'S KIND OF WHAT WE ASSOCIATE WITH
20 ALZHEIMER'S, I'M ASSUMING?
21 A. YES, BUT ALSO, I THINK -- I HAVEN'T READ THIS FOR A
22 WHILE. ALZHEIMER'S, YES, BUT ALSO A NUMBER OF PSYCHOTIC
23 DISORDERS AS WELL.
24 Q. YEAH. IN ORDER WORDS, THIS HOSPITAL WASN'T SIMPLY
25 LIMITED TO PEOPLE WITH ALZHEIMER'S --
209
1 A. NO.
2 Q. -- PROBLEMS.
3 A. NO.
4 Q. WHAT TYPE OF -- YOU MENTIONED DEPRESSION. FOR EXAMPLE,
5 WHAT TYPE OF DEPRESSION WOULD AN ELDERLY PATIENT SUFFER THAT
6 YOU WOULD ADMIT TO THIS UNIT?
7 A. AN ELDERLY PERSON, LIKE A YOUNGER PERSON, CAN SUFFER
8 FROM A -- A MAJOR DEPRESSIVE DISORDER WHICH HAS A WHOLE LIST
9 OF SYMPTOMS THAT MAKE -- INCLUDING FREQUENT SUICIDAL
10 IDEATION, THAT USUALLY INVOLVES LACK OF PLEASURE IN NORMAL
11 ACTIVITIES, SLEEP DISTURBANCE, APPETITE DISTURBANCE, A WHOLE
12 NUMBER OF SYMPTOMS. AND IT WOULD BE THE SAME FOR AN ELDERLY
13 PERSON -- VERY SIMILAR FOR AN ELDERLY PERSON AS IT WOULD
14 ANOTHER PERSON.
15 Q. THANK YOU. NOW, YOU ALSO INDICATED ON THIS -- WE'RE
16 GOING ON. ON DOWN HERE THERE'S ALSO ANOTHER, I BELIEVE,
17 FIVE THROUGH NINE. CAN YOU TELL THE JURY JUST BRIEFLY WHAT
18 THOSE CONDITIONS ARE, WHAT THOSE REQUIREMENTS ARE? AND I'M
19 KIND OF ASKING YOU MORE TO EXPLAIN, YOU KNOW, IN LAYMEN'S
20 TERMS WHAT THOSE MEAN.
21 A. OKAY.
22 Q. IF YOU CAN READ THEM.
23 A. WELL, THE LITTLE PARAGRAPH ABOVE NUMBER FIVE, THE
24 SENTENCE ABOVE NUMBER FIVE JUST INDICATES THAT IF -- IF
25 POSSIBLE WE'D PREFER, YOU KNOW, TO NOT HAVE A PERSON BE
210
1 HOSPITALIZED. BUT IF THEIR CONDITION WAS SO BAD THAT THEY
2 NEEDED TO BE HOSPITALIZED, THEN WE WOULD DO SO. IF THEIR
3 CONDITION COULD BE TREATED AT A LOWER LEVEL OF CARE, AN
4 OUT-PATIENT, THEN THAT IS ALWAYS MORE DESIRABLE.
5 AND THEN FIVE THROUGH NINE INDICATE ADDITIONAL CRITERIA
6 THAT IF THERE'S BEEN AN ACUTE OR A SUDDEN ONSET, IF THERE'S
7 BEEN A RAPID CHANGE IN BEHAVIOR, THAT NORMALLY IS SOMETHING
8 YOU WANT TO COME TAKE A CLOSER LOOK AT ON AN INPATIENT
9 BASIS.
10 IF SOMEBODY'S HAVING DIFFICULTY WITH THEIR ACTIVITIES
11 OF DAILY LIVING, SPECIFICALLY PSYCHOMOTOR RETARDATION, THESE
12 ARE JUST, YOU KNOW, VERY -- IT'S KIND OF THE OPPOSITE OF
13 BEING AGITATED, JUST VERY LITTLE MOVEMENT, VERY LITTLE
14 ACTIVITY. ANOREXIA HAS TO DO WITH WEIGHT LOSS; INSOMNIA HAS
15 TO DO WITH THE INABILITY TO SLEEP.
16 AND THEN PSYCHOSIS OR PSYCHOTIC PROBLEMS, PEOPLE ARE
17 HEARING THINGS OR SEEING -- SEEING THINGS THAT ARE NOT BASED
18 ON REALITY. THEN THAT'S -- YOU WANT TO GET THEM IN. IF
19 THEY'RE HAVING TOXIC EFFECTS OR SIDE -- SEVERE -- TOXIC
20 EFFECTS WOULD IMPLY SEVERE SIDE EFFECTS TO A MEDICATION,
21 YOU'D WANT TO GET THEM IN. OR IF THERE WAS A NEED FOR 24
22 HOUR CARE, OBVIOUSLY YOU'D WANT TO GET THEM IN.
23 Q. NOW, I WANT TO GO BACK A LITTLE BIT. WHEN YOU TALK
24 ABOUT NUMBER FIVE, THE ACUTE ONSET OF -- INTENSIFICATION OF
25 THEIR AGITATED BEHAVIORS, JUST FOR THE JURY'S BENEFIT AND
211
1 FOR MY BENEFIT, THERE'S A DIFFERENCE BETWEEN ACUTE AND
2 CHRONIC BASED ON YOUR UNDERSTANDING; IS THAT CORRECT?
3 A. YES.
4 Q. WHAT IS THE DIFFERENCE?
5 A. WELL, A CHRONIC CONDITION IS AN ENDURING CONDITION. AN
6 ACUTE OR SUDDEN ONSET MEANS THERE'S A RAPID OR SUDDEN CHANGE
7 IN SOMEBODY'S BEHAVIOR OR PRESENTATION.
8 Q. OKAY. AND IN THIS CRITERIA, WAS THERE ANY PARTICULAR
9 LIMIT ON HOW -- WHAT PERIOD OF TIME THIS ACUTE CONDITION
10 WOULD TAKE PLACE? I MEAN, WOULD YOU SAY IF SOMEBODY HAD
11 GONE DOWNHILL IN THREE MONTHS OR SIX MONTHS OR A YEAR -- SEE
12 WHAT I'M SAYING?
13 A. WELL, IF THEY'D GONE DOWNHILL IN A YEAR, YOU JUST
14 WOULDN'T CALL IT ACUTE OR SUDDEN, BUT -- YOU KNOW, I'D SAY
15 REALLY WE JUST TRIED TO LOOK AT THE PATIENT AT THEIR CURRENT
16 CONDITION. IF IT WAS A SUDDEN ONSET, THAT WAS -- THAT WAS
17 HELPFUL INFORMATION. AND IF THEIR -- IF THEIR BEHAVIOR OR
18 FUNCTIONING PRIOR TO THAT SUDDEN ONSET WAS -- IF THEY WERE
19 FUNCTIONING AT A HIGHER LEVEL AND THEN THEY HAD A SUDDEN
20 ONSET, AND NOW WITHIN 24 HOURS OR WITHIN THREE DAYS, WITHIN
21 A WEEK'S PERIOD OF TIME THEY'VE GONE FROM A HIGH LEVEL OF
22 FUNCTIONING TO A LOW LEVEL OF FUNCTIONING, THAT'S A CONCERN.
23 I BELIEVE THAT IMPLIES THERE'S -- YOU KNOW, IT'S AN
24 ADVANCEMENT OF A PSYCHIATRIC OR OTHER DISEASE PROCESS.
25 Q. NOW, MOVING DOWN QUICKLY TO NUMBER EIGHT, YOU INDICATE
212
1 THE TOXIC EFFECTS FROM THE THERAPEUTIC PSYCHOSOMATIC (SIC)
2 MEDICATION?
3 A. PSYCHOTROPIC.
4 Q. PSYCHOTROPIC MEDICATION. WHAT IS THAT, BASICALLY?
5 A. I'M NOT A PHYSICIAN. A PHYSICIAN COULD SAY MORE ABOUT
6 WHAT TOXIC EFFECTS OF PSYCHOTROPIC MEDICATION MEANS.
7 Q. WELL, AND FOR THE RECORD I UNDERSTAND THAT. I'M JUST
8 ASKING BASED ON YOUR TRAINING AND EXPERIENCE.
9 A. YEAH. I BELIEVE THAT MEANS THAT TOXIC SIDE -- I THINK
10 IT MEANS SEVERE SIDE EFFECTS. SOME MEDICATIONS HAVE SIDE
11 EFFECTS, AND IF YOU'RE HAVING TOXIC EFFECTS, THAT MEANS
12 THERE'S PROBABLY TOO MUCH OF THE MEDICATION IN YOUR SYSTEM
13 OR IT'S AT LEAST CONSIDERED A TOXIC RESPONSE IF YOU'RE
14 HAVING A VERY BAD RESPONSE TO MEDICATION.
15 Q. AND --
16 A. SUCH THAT YOU NEED TO GET THEM IN A 24-HOUR FACILITY
17 WHERE YOU CAN TAKE A CLOSER LOOK, OR IF NOT A 24-HOUR
18 FACILITY, VERY CLOSE MONITORING OF THEM SO YOU CAN ASCERTAIN
19 WHAT MEDICINE IS BEING ADMINISTERED AND WHAT -- IN A
20 CLINICAL -- IN A DETAILED CLINICAL SENSE, WHAT ARE THE --
21 WHAT ARE THE EFFECTS OF THE MEDICATION.
22 Q. AND THAT WOULD INVOLVE ADJUSTING THE MEDICATIONS -- THE
23 LEVELS OF MEDICATION GIVEN AND THE TYPES OF MEDICATION
24 GIVEN?
25 A. THAT -- THE DISCONTINUATION OF MEDICINE, THE ADJUSTING
213
1 OF MEDICINE. IT --
2 Q. AND THOSE ARE ALL THE TYPES OF THINGS THIS UNIT WAS SET
3 UP TO DO?
4 A. UH-HUH. YES.
5 Q. NOW, GOING ON TO PAGE TWO OF THIS EXHIBIT NUMBER 2,
6 THERE'S ALSO SOME EXCLUSIONARY CRITERIA. WHAT -- WHAT --
7 JUST IN GENERAL TERMS, WHAT DID THAT MEAN? WHAT DOES IT
8 MEAN, EXCLUSIONARY CRITERIA?
9 A. WELL, THERE ARE -- THERE ARE REASONS WHY YOU CAN ADMIT
10 SOMEONE AND THERE ARE REASONS WHY YOU SHOULDN'T ADMIT
11 SOMEONE. THE EXCLUSIONARY CRITERIA ARE THOSE CRITERIA WHY
12 YOU PROBABLY SHOULD NOT.
13 Q. SO IF PATIENTS WERE TO FALL UNDER THIS -- THIS
14 PARTICULAR AREA, THEY WOULD NOT BE ADMITTED?
15 A. IN GENERAL.
16 Q. AND, BASICALLY, WHAT WERE SOME OF THOSE CRITERIA?
17 A. THE -- IF YOU LOOK AT NUMBER ONE I THINK THE SECOND --
18 THE END OF THE SECOND SENTENCE IS THE MOST IMPORTANT PART.
19 IF THERE'S NO EXPECTATION FOR A POSITIVE RESPONSE FOR
20 TREATMENT, THEN REGARDLESS OF THE SITUATION -- WELL, NOT
21 REGARDLESS, BUT IN GENERAL, IF THERE'S NOT -- IF THERE'S NO
22 EXPECTATION FOR A POSITIVE RESPONSE TO TREATMENT, THEN YOU
23 DON'T WANT -- IN GENERAL, YOU DON'T ADMIT THOSE PEOPLE.
24 Q. SO IF YOU CAN'T CURE THE PATIENT, YOU DON'T WANT THEM TO
25 COME ON THE UNIT?
214
1 A. WELL, IF WE CAN'T HELP THEM.
2 Q. OKAY. WE HAVE DIFFERENT -- IF YOU CAN'T HELP THEM, YOU
3 DON'T WANT THEM TO COME ON THE UNIT. OKAY. I UNDERSTAND
4 THERE'S A DIFFERENCE BETWEEN CURE FOR A LAYMAN AND CURE FOR
5 A MEDICAL PROFESSIONAL.
6 A. OKAY.
7 Q. AND WHAT ABOUT NUMBER TWO?
8 A. IF SOMEONE HAS A LIFE-THREATENING ILLNESS, THEY
9 SHOULDN'T -- THEY DON'T BELONG ON A PSYCHIATRIC UNIT.
10 Q. AND NUMBER THREE?
11 A. I GUESS I SHOULD SAY A LIFE-THREATENING MEDICAL ILLNESS
12 AS OPPOSED TO A LIFE-THREATENING PSYCHIATRIC ILLNESS.
13 Q. OKAY.
14 A. WE'RE DESIGNED TO TREAT LIFE-THREATENING PSYCHIATRIC
15 ILLNESSES. WE WERE NOT SET UP TO TREAT LIFE-THREATENING
16 MEDICAL ILLNESSES.
17 Q. CAN YOU BRIEFLY -- AGAIN, FOR US LAYMEN, CAN YOU BRIEFLY
18 DESCRIBE THE DIFFERENCE BETWEEN A LIFE-THREATENING PHYSICAL
19 AND A LIFE-THREATENING MENTAL?
20 A. WELL, A LIFE-THREATENING MENTAL ILLNESS IS NORMALLY
21 SOME -- ASSOCIATED WITH SUICIDALITY (SIC). IF SOMEBODY'S
22 MADE A LETHAL SUICIDE ATTEMPT OR IF SOMEONE IS AT HIGH RISK
23 TO MAKE A LETHAL SUICIDE ATTEMPT, WHICH -- WHICH IS TO SAY
24 THEY HAVE THE INTENT AND THEY HAVE THE ABILITY TO COMPLETE A
25 SUICIDE, THEN THAT'S CONSIDERED A LIFE-THREATENING
215
1 PSYCHIATRIC ILLNESS.
2 IN TERMS OF A LIFE-THREATENING MEDICAL ILLNESS I WOULD
3 GUESS THAT -- THAT WOULD MEAN SOMEONE WHO'S GOT A HEART
4 CONDITION THAT IS SO FRAGILE, YOU KNOW, THEY -- THERE COULD
5 BE A VARIETY OF MEDICAL CONDITIONS THAT WOULD NEED TO BE
6 STABILIZED BEFORE THEY WOULD BE ABLE TO ACTIVELY PARTICIPATE
7 IN PSYCHIATRIC TREATMENT.
8 Q. OKAY. AND THEN NUMBER THREE INDICATES: PATIENTS WITH
9 TERMINAL DISEASE WITHOUT A TREATABLE PSYCHIATRIC DISORDER.
10 CAN YOU EXPLAIN THAT A LITTLE BIT?
11 A. YEAH. AND THAT "WITHOUT" IS THE MOST IMPORTANT PART.
12 IF SOMEBODY HAS A TERMINAL ILLNESS -- I THINK WE KNOW WHAT
13 THAT MEANS. IF THEY HAVE A TERMINAL ILLNESS, BUT NO
14 PSYCHIATRIC DISORDER -- WITHOUT A TREATABLE PSYCHIATRIC
15 DISORDER, THEY SHOULD GO TO THE APPROPRIATE HOSPICE OR OTHER
16 FACILITY.
17 Q. NOW, IN THAT PARTICULAR SITUATION, WHEN YOU'RE TALKING
18 ABOUT A TERMINAL DISEASE -- I'M UNDERSTANDING THAT THAT
19 MEANS END OF LIFE. YOUR UNIT WAS A VERY SHORT-TERM STAY, I
20 TAKE IT?
21 A. REPEAT THE FIRST PART OF WHAT YOU SAID.
22 Q. WELL, A TERMINAL -- A TERMINAL DISEASE IS BASICALLY
23 SOMETHING THAT'S GOING TO END OR TERMINATE THE PERSON'S
24 LIFE.
25 A. RIGHT.
216
1 Q. AND YOUR UNIT WAS MAINLY FOR A VERY SHORT STAY -- SHORT
2 STAY.
3 A. YEAH. SOMEONE COULD NOT -- THAT'S RIGHT. IT WAS A --
4 IT WAS AN INPATIENT -- ACUTE INPATIENT TREATMENT FACILITY OR
5 PROGRAM SO WE -- OUR JOB WAS TO STABILIZE PEOPLE,
6 PSYCHIATRICALLY, SO THEY COULD GO TO A LESSER LEVEL OF CARE
7 OR GO BACK TO THE -- YOU KNOW, TO A NON-HOSPITAL -- YOU
8 KNOW, TO THE NURSING HOME, TO THEIR HOME, TO A LESSER LEVEL
9 OF CARE.
10 Q. AND SO GIVEN THE FACT THAT YOU'VE GOT -- YOU'RE
11 INDICATING THAT YOU'RE TALKING ABOUT A TERMINAL DISEASE
12 WHICH MAY CAUSE END OF LIFE AND --
13 MR. STIRBA: YOUR HONOR -- YOUR HONOR, I'M GOING TO
14 OBJECT. LEADING AND SUGGESTIVE. THIS IS DIRECT
15 EXAMINATION.
16 THE COURT: SUSTAINED.
17 MR. MAJOR: YOUR HONOR, I DON'T BELIEVE -- IF I
18 MIGHT, JUST BASICALLY I'M JUST TRYING TO SET THE FOUNDATION
19 SO THAT HE UNDERSTANDS SPECIFICALLY WHERE THE QUESTION IS
20 GOING TO BE GOING.
21 THE COURT: THE OBJECTION IS SUSTAINED.
22 MR. MAJOR: THANK YOU.
23 Q. (BY MR. MAJOR) SO WAS THERE ANY PERIOD OF TIME ON
24 WHICH YOU WOULD MAKE A DETERMINATION ON HOW LONG THIS
25 PATIENT HAD TO SURVIVE? IF YOU HAVE A TERMINALLY ILL
217
1 PATIENT COMING ON THE UNIT, WAS THERE A LIMIT ON THE LENGTH
2 OF ANTICIPATION BEFORE THEIR DEATH? SEE WHAT I'M GETTING
3 AT?
4 A. TERMINAL DISEASE CAN -- YOU KNOW, SOMEONE CAN HAVE A
5 TERMINAL DISEASE AND HAVE A LONG PERIOD OF TIME TO LIVE OR A
6 SHORT TIME -- PERIOD OF TIME TO LIVE. IT'S NOT AN EXACT
7 SCIENCE IN MEDICINE OR PSYCHIATRY, BUT I DON'T -- I DON'T
8 REMEMBER -- WOULD YOU REPEAT THE QUESTION?
9 Q. YEAH.
10 A. I DON'T KNOW IF I'M ANSWERING THE QUESTION.
11 Q. LET ME ASK IT THIS WAY. LET ME GIVE YOU A HYPOTHETICAL
12 QUESTION. IF YOU HAD AN INDIVIDUAL WHO SAY DIDN'T HAVE A
13 MENTAL DISORDER, HAD A TERMINAL ILLNESS AND THE DOCTOR
14 INDICATED THEY MAY HAVE TWO OR THREE YEARS LEFT, WOULD THEY
15 QUALITY FOR THE UNIT?
16 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. SAME
17 OBJECTION. LEADING AND SUGGESTIVE. HE'S NOT QUALIFIED AS
18 AN EXPERT, HE'S NOT TREATING HIM AS AN EXPERT. IT'S AN
19 INAPPROPRIATE HYPOTHETICAL.
20 MR. MAJOR: YOUR HONOR, I'M NOT ASKING HIM AS AN
21 EXPERT. I'M ASKING HIM AS A PERSON WHO WAS INVOLVED WITH
22 THE INTAKE OF THESE PATIENTS. WE'RE TRYING TO ESTABLISH
23 WHAT THE CRITERIA WAS FOR THE INTAKE OF THESE PARTICULAR
24 PATIENTS.
25 MR. STIRBA: WELL, THE CRITERIA IS RIGHT IN THE
218
1 POLICY. IT SPEAKS FOR ITSELF, YOUR HONOR.
2 MR. MAJOR: NO. THE QUESTION -- IF I MIGHT PROFFER
3 THE QUESTION TO THE COURT. THE QUESTION SIMPLY IS WE HAVE A
4 SHORT-TERM PATIENT. WOULD HE ACCEPT A PATIENT THAT HAD
5 PERHAPS AN ESTIMATED LIFE SPAN OF TWO YEARS VERSUS A PATIENT
6 WHERE THE DOCTOR SAYS THIS PATIENT HAS MAYBE TWO WEEKS,
7 THREE WEEKS TO LIVE?
8 THE COURT: WELL, I THINK THE FIRST QUESTION IS
9 DOES HE MAKE THE DETERMINATION WHICH PATIENTS ARE ACCEPTED?
10 MR. MAJOR: AND THAT WAS HIS -- YES. AND THAT
11 WAS -- HE WENT OUT AND DID THE EVALUATION AND MADE THE
12 RECOMMENDATION. THAT WAS HIS TESTIMONY. HE MADE THE
13 RECOMMENDATION THAT THESE PATIENTS WERE THE ONES THAT COME
14 ON THE UNIT.
15 THE WITNESS: LET ME --
16 MR. STIRBA: YOUR HONOR, RESPECTFULLY, I THINK HE'S
17 ALREADY TESTIFIED WHO MADE THE ADMISSIONS. AND I DON'T
18 THINK ANYBODY OTHER THAN A PHYSICIAN CAN ADMIT ANYBODY TO A
19 HOSPITAL.
20 MR. MAJOR: AND THAT'S CORRECT. BUT HE WAS -- AND
21 IF I MIGHT ASK HIM ONE FURTHER QUESTION THEN.
22 THE COURT: WELL, WHY DON'T YOU REPHRASE THE
23 QUESTION.
24 MR. MAJOR: NEVER MIND, YOUR HONOR. WE'LL JUST
25 SKIP OVER THAT QUESTION.
219
1 Q. (BY MR. MAJOR) WHAT WAS THE NEXT -- WHAT'S THE NEXT
2 REQUIREMENT AS YOUR UNDERSTANDING FOR ADMISSION TO THE UNIT?
3 A. THE NEXT EXCLUSIONARY CRITERIA?
4 Q. UH-HUH.
5 A. THE NEXT EXCLUSIONARY CRITERIA REFERS TO RE -- THE
6 READMISSION OF PATIENTS WHO HAVE ALREADY -- IF WE'D ALREADY
7 TREATED SOMEONE AND THEY'D BENEFITTED AS MUCH AS -- WE'D
8 GIVEN THEM ALL WE HAD TO OFFER AND THERE WAS -- IT WASN'T
9 ANTICIPATED WE COULD DO ANYTHING MORE TO HELP THEM, OR
10 THEY'D BEEN SO DISRUPTIVE THAT IT REALLY WAS NOT IN THE BEST
11 INTEREST OF THE OTHER PATIENTS THAT THEY BE TREATED THERE --
12 Q. OKAY.
13 A. -- OR PEOPLE HAD REFUSED TO PARTICIPATE IN THE TREATMENT
14 THE FIRST TIME, THESE WERE EXCLUDED.
15 Q. AND NUMBER FIVE INDICATES PATIENTS THAT ARE BEDRIDDEN OR
16 CANNOT PARTICIPATE IN THE TREATMENT PROGRAM.
17 A. YES.
18 Q. AND WHY WOULD THAT NOT -- WHY WOULD THAT BE A LACK OF
19 QUALIFICATION?
20 A. IF SOMEONE'S BEDRIDDEN IT'S DIFFICULT FOR THEM TO
21 ACTIVELY PARTICIPATE, EVEN IN PSYCHIATRIC TREATMENT.
22 Q. OKAY. AND THE NEXT ONE IS SIX IS PATIENTS WITH COMPLEX
23 MEDICAL AND SURGICAL PROCEDURES. AND THAT'S KIND OF THE
24 SAME AS BEING -- SOME OF THE OTHER PROBLEMS WE'VE TALKED
25 ABOUT.
220
1 A. YES.
2 Q. OKAY. NOW YOU, YOURSELF, AREN'T -- DO NOT ADMIT THE
3 PATIENTS TO THE UNIT; IS THAT CORRECT?
4 A. I DO NOT ADMIT THE PATIENTS.
5 Q. YOU DON'T HAVE THE AUTHORITY TO ADMIT PATIENTS ONTO THE
6 UNIT?
7 A. NO.
8 Q. DID YOU HAVE AUTHORITY AT THIS TIME TO REJECT PATIENTS
9 FOR THE UNIT?
10 A. NO.
11 Q. SO IF AN INDIVIDUAL WERE TO CALL YOU UP FROM A REST
12 HOME --
13 MR. STIRBA: OBJECT. LEADING AND SUGGESTIVE, YOUR
14 HONOR.
15 MR. MAJOR: YOUR HONOR, IT'S JUST SIMPLY
16 ESTABLISHING --
17 THE COURT: FINISH THE QUESTION. I DIDN'T HEAR THE
18 QUESTION.
19 Q. (BY MR. MAJOR) IF AN INDIVIDUAL WERE TO CALL YOU OUT
20 TO A REST HOME, INDICATED THEY HAD A PATIENT, THEN WHAT WAS
21 THE PROCEDURE THAT YOU WOULD FOLLOW?
22 A. WE WOULD CONDUCT AN INITIAL ASSESSMENT OF THE PATIENT
23 AND TRY TO DETERMINE TO THE BEST OF OUR ABILITY WHETHER THEY
24 WOULD BENEFIT FROM INPATIENT PSYCHIATRIC TREATMENT OR OTHER
25 TREATMENT. IF WE FELT THAT THEY WOULD BENEFIT FROM
221
1 INPATIENT PSYCHIATRIC TREATMENT, WE WOULD CALL THE ATTENDING
2 PHYSICIAN, GIVE THAT PHYSICIAN A SUMMARY OF OUR FINDINGS,
3 AND THEN THE ATTENDING PHYSICIAN WOULD MAKE A DECISION.
4 Q. WOULD YOU DO THAT IF THE PATIENT THAT YOU WERE LOOKING
5 AT FELL IN ONE OF THESE CATEGORIES -- ONE OF THESE SIX
6 CATEGORIES WE JUST DISCUSSED?
7 A. WE MAY. WE'D -- WE'D -- WE'D REALLY HAVE TO LOOK AT THE
8 PATIENT RIGHT THEN AND THERE. AND THESE -- THESE WERE
9 GUIDELINES. THEY WERE NOT HARD AND FAST.
10 Q. UH-HUH.
11 A. YOU KNOW, WE WOULDN'T ASSESS SOMEONE BECAUSE THEY FELL
12 INTO THIS CATEGORY OR THAT. WE'D STILL MAKE THE ASSESSMENT,
13 WE'D TRY AND GET ADDITIONAL INFORMATION, AND DO WHAT WAS --
14 WHAT WE FELT WAS BEST FOR THE PATIENT.
15 Q. OKAY. AND WHEN YOU -- YOU CONTACTED THE PHYSICIAN, WHO
16 WOULD THAT BE?
17 A. THAT WOULD BE DR. JENSEN OR DR. WEITZEL.
18 Q. WHAT INFORMATION WOULD YOU PROVIDE TO THEM?
19 A. A SUMMARY OF OUR FINDINGS. WE HAD AN INTAKE FORM THAT
20 WE WOULD FILL OUT AND THAT -- THAT -- THAT FORM WOULD HELP
21 US SUMMARIZE THE FINDINGS OF OUR ASSESSMENT AND WE'D -- WE
22 WOULD REPEAT THOSE OR SUMMARIZE THOSE TO -- FOR THE
23 PHYSICIAN.
24 Q. WOULD YOU SPEAK PERSONALLY WITH THE PHYSICIANS?
25 A. YES.
222
1 Q. AND WOULD YOU RAISE ANY QUESTIONS THAT YOU HAD ON THE
2 PATIENTS?
3 A. YES.
4 Q. AND WOULD YOU DISCUSS MEDICAL CONDITIONS WITH THEM?
5 A. YES.
6 Q. WOULD YOU DISCUSS THE PSYCHOLOGICAL CONDITIONS WITH
7 THEM?
8 A. YES.
9 Q. WOULD YOU DISCUSS YOUR -- THE ABILITY OF THE PATIENT TO
10 RECEIVE TREATMENT ON THE UNIT?
11 A. WE MAY.
12 Q. AND TO HELP ON THE UNIT?
13 A. WE -- WE MAY. MORE THE FORMER THAN THAT SPECIFICALLY.
14 Q. OKAY. THEN WHAT WOULD HAPPEN AFTER YOU HAD THIS
15 DISCUSSION WITH THE DOCTOR?
16 A. THE PHYSICIAN WOULD MAKE A DECISION TO ADMIT OR TO NOT
17 ADMIT OR TO GET MORE INFORMATION.
18 Q. OKAY. AND IF THE -- THE PHYSICIAN AT THAT POINT IN TIME
19 DETERMINED TO ADMIT THE PATIENT, WHAT WOULD OCCUR?
20 A. I BELIEVE THEN WE WOULD GO AHEAD -- I THINK THE
21 PHYSICIAN WOULD CALL THE NURSE OR WE WOULD CALL THE NURSE
22 BACK AT THE HOSPITAL AND SAY WE GOT APPROVAL FROM THE
23 PSYCHIATRIST, AND THEN WE'D INITIATE THE ADMISSION
24 PROCEDURES WHICH WOULD INVOLVE TRANSFERRING THE PATIENT OR
25 THE PATIENT BEING TRANSPORTED TO THE HOSPITAL. THEY WOULD
223
1 THEN GO THROUGH A -- REALLY THE FIRST THING THEY WOULD DO
2 WHEN THEY'D HIT THE DOOR IS HAVE A NURSING ASSESSMENT. THE
3 NURSING STAFF WOULD CONDUCT, YOU KNOW, THAT FIRST ASSESSMENT
4 ON THE UNIT.
5 Q. AND DO YOU KNOW, BASED ON YOUR EXPERIENCE WITH THE
6 HOSPITAL, WHAT THAT ENTAILED?
7 A. YES. IT WAS -- IT WAS FAIRLY DETAILED. AGAIN, MANY OF
8 THE SAME CATEGORIES I'VE ALREADY MENTIONED BUT IN GREATER
9 DETAIL. THEY'D INTERVIEW THE FAMILY AND THE PATIENT TO TRY
10 AND FILL OUT, YOU KNOW, IT MAY HAVE BEEN A SIX OR EIGHT PAGE
11 FORM, THE NURSING --
12 Q. WHAT ELSE -- PARDON ME. WHAT ELSE WOULD TAKE PLACE ONCE
13 THE PATIENT HAD BEEN ACCEPTED?
14 A. USUALLY WITHIN 24 HOURS THERE'D BE A PSYCHIATRIC
15 EVALUATION BY THE PSYCHIATRIST, AS WELL AS A HISTORY AND
16 PHYSICAL BY ONE OF THE OTHER MEMBERS OF THE MEDICAL STAFF AT
17 THE HOSPITAL. IT WOULD EITHER BE AN INTERNIST OR A FAMILY
18 PRACTITIONER.
19 Q. OKAY. THIS WOULD BE A PHYSICIAN THEN?
20 A. YEAH.
21 Q. AND THAT WAS WITHIN WHAT PERIOD OF TIME? I MISSED THAT.
22 A. THE HISTORY AND PHYSICAL WAS TO OCCUR WITHIN 24 HOURS
23 AND THE PSYCHIATRIC EVAL WAS TO OCCUR WITHIN 24 HOURS.
24 Q. OKAY. AND THEN WHAT WOULD HAPPEN?
25 A. WELL, THERE'S -- THE NURSING ASSESSMENT, PSYCH EVAL, AND
224
1 H&P WERE TO OCCUR WITHIN THE FIRST 24 HOURS OF ADMISSION. I
2 THINK THE NURSING ASSESSMENT WAS TO OCCUR WITHIN THE FIRST
3 SIX HOURS OR EIGHT HOURS OF TREATMENT. AND THEN THE SOCIAL
4 WORKER WAS TO COMPLETE A -- A FORMAL PSYCHOSOCIAL EVALUATION
5 WITHIN 72 HOURS OF ADMISSION. AND AN INITIAL TREATMENT PLAN
6 WOULD BE DEVELOPED FOR THE PATIENT WITHIN THE FIRST 24
7 HOURS, USUALLY BASED ON THE NURSING ASSESSMENT AND THE
8 INTAKE, AND THEN TREATMENT WOULD COMMENCE.
9 Q. OKAY. WOULD THE NURSING STAFF AND THE DOCTOR -- THE
10 PSYCHIATRIST ON THE UNIT HAVE ACCESS TO THE PHYSICAL EXAMS
11 THAT WERE CONDUCTED?
12 A. YES. THE -- NORMALLY THE PHYSICIAN CONDUCTING THE
13 HISTORY AND PHYSICAL WOULD WRITE A CHART NOTE AS WELL AS A
14 DICTATION, MAYBE A FORM THAT WAS IN THE CHART. THERE WAS
15 SOME VARIATION THERE, BUT CERTAINLY A DICTATED HISTORY AND
16 PHYSICAL OR A HANDWRITTEN HISTORY AND PHYSICAL WOULD BE
17 AVAILABLE WITHIN THE -- USUALLY WITHIN A REASONABLE PERIOD
18 OF TIME.
19 Q. OKAY. AND NATURALLY AS THE PATIENTS WERE ON THIS UNIT,
20 I GUESS SOMETIMES THEIR HEALTH COULD DETERIORATE? WHAT WAS
21 THE NORMAL PROCEDURE IF A PATIENT BECAME ILL ON THE UNIT?
22 A. TO TREAT THE ILLNESS.
23 Q. OKAY. AND IF THE ILLNESS WAS SERIOUS?
24 A. AGAIN, WE'D -- WE'D -- WE WOULD TREAT SERIOUS ILLNESS,
25 MEDICAL AND PSYCHIATRIC ILLNESS ON THIS UNIT. IF THE
225
1 ILLNESS BECAME -- IF THE MEDICAL PROBLEM BECAME SO ACUTE
2 THAT THEY COULD NOT BENEFIT FROM PSYCHIATRIC TREATMENT WE
3 WOULD -- SOMETIMES WE WOULD TRANSFER THE PATIENT TO A
4 MEDICAL FLOOR SO THEY COULD BE STABILIZED OR HAVE AGGRESSIVE
5 TREATMENT FOR THE MEDICAL CONDITION, THEN TRANSFER THEM BACK
6 TO FINISH THE PSYCHIATRIC TREATMENT, IF NECESSARY.
7 Q. OKAY. NOW, YOU'RE FAMILIAR WITH THE TERM HOSPICE, ARE
8 YOU NOT?
9 A. UH-HUH.
10 Q. AND WHAT IS HOSPICE?
11 A. HOSPICE IS USUALLY A PROGRAM OF CARE AND SUPPORT GIVEN
12 TO PATIENTS AND THEIR FAMILIES WHEN THEY REACH KIND OF A
13 CRITICAL, TERMINAL PHASE OF THEIR ILLNESS.
14 Q. WAS THIS UNIT DESIGNED OR SET UP FOR ANY TYPE OF HOSPICE
15 TREATMENT?
16 A. WE HAD RELATED HOSPICE SERVICES, BUT NOT -- WE WERE NOT
17 A HOSPICE UNIT.
18 Q. YOU'RE ALSO FAMILIAR WITH THE TERM OF "COMFORT CAR," ARE
19 YOU NOT?
20 A. YES.
21 Q. AND WHAT IS YOUR UNDERSTANDING OF THAT TERM?
22 A. MEDICAL TREATMENT TO REALLY KEEP A PATIENT COMFORTABLE
23 DURING A -- EITHER A PAINFUL OR -- WELL, USUALLY A CRITICAL,
24 TERMINAL PHASE OF TREATMENT IS MY UNDERSTANDING.
25 Q. OKAY. WAS THIS UNIT SET UP TO TAKE CARE OF OR HANDLE
226
1 COMFORT CARE?
2 A. IT WAS NOT SET UP FOR THAT PURPOSE.
3 Q. THANK YOU. NOW, DURING THE COURSE OF A PATIENT'S STAY
4 WHILE YOU WERE THE DIRECTOR, WAS THERE TIMES WHEN YOU WOULD
5 HAVE STAFF MEETINGS TO DISCUSS THE PATIENT'S CARE?
6 A. WELL, WE'D HAVE STAFF MEETINGS TO TALK ABOUT STAFF
7 ISSUES. WE'D HAVE TREATMENT PLANNING MEETINGS TO DISCUSS
8 THE TREATMENT OF THE PATIENTS.
9 Q. OKAY. SO THERE IS THAT DISTINCTION. WHEN I -- I SAY
10 STAFF MEETINGS, GENERALLY EVERYBODY GETS TOGETHER AND TALKS.
11 BUT THERE WAS A DISTINCTION BETWEEN THE TWO TYPES?
12 A. YES.
13 Q. OKAY. AND WHEN YOU HAD THE TREATMENT CARE -- STAFF --
14 OR I SHOULDN'T SAY STAFF -- TREATMENT CARE MEETINGS, WHO WAS
15 INVOLVED IN THOSE?
16 A. THE TREATMENT TEAM. USUALLY THE CHARGE NURSE, THE
17 SOCIAL WORKER, THE PROGRAM DIRECTOR, THE PHYSICIAN, THE
18 INTAKE PERSON I'VE REFERRED TO. USUALLY THE WHOLE TREATMENT
19 TEAM WOULD PARTICIPATE.
20 Q. AND HOW OFTEN WOULD THEY MEET?
21 A. AS I RECALL IT WOULD BE TWO OR -- TWO OR -- I WOULD
22 GUESS TWO TIMES A WEEK, MAYBE MORE OFTEN.
23 Q. AND, GENERALLY, WHAT WAS DISCUSSED IN THESE MEETINGS?
24 A. WE'D REVIEW EACH OF THE PATIENTS AND THEIR TREATMENT
25 PLAN AND HOW THINGS WERE GOING AND DISCUSS -- YOU KNOW, KIND
227
1 OF -- IT WAS A TIME WHERE WE COULD ALL BE IN THE SAME ROOM
2 AND DISCUSS ASPECTS OF CARE THAT NEEDED TO BE COORDINATED.
3 Q. OKAY. NOW, DURING THE PERIOD OF TIME FROM DECEMBER OF
4 1995 AND JANUARY OF 1996, THERE WERE APPROXIMATELY FIVE
5 PATIENTS WHO DIED ON THIS UNIT. WERE YOU AWARE OF THAT?
6 A. YES.
7 Q. AND HOW DID YOU BECOME AWARE OF THAT? WHAT WERE THE
8 CIRCUMSTANCES?
9 A. NURSING STAFF INFORMED ME.
10 Q. AND DO YOU RECALL WHEN THAT WAS OR WHAT THE
11 CIRCUMSTANCES OF THEM INFORMING YOU?
12 A. I GUESS -- I MEAN, I WAS AT WORK DOING MY JOB. I THINK
13 IT WAS EARLY IN THE MORNING. YOU KNOW, THAT'S JUST KIND OF
14 A BLUR ABOUT THE CIRCUMSTANCES OF HOW THEY INFORMED ME. THE
15 NURSING STAFF CAME TO MY OFFICE AND SAID DO YOU KNOW WHAT
16 HAPPENED OR DO YOU KNOW WHAT'S GOING ON? SOMEONE IS REALLY
17 GOING DOWNHILL FAST. I THINK I WAS INFORMED OF CLIENTS THAT
18 WERE GOING DOWNHILL QUICKLY, AS WELL AS AFTER THE FACT WHEN
19 SOME DEATHS HAD ALREADY OCCURRED.
20 Q. OKAY. NOW, DURING THIS PERIOD OF TIME I ASSUME YOU WERE
21 HAVING THE TREATMENT MEETINGS, AGAIN, WITH THE DOCTOR --
22 WITH DR. WEITZEL AND THE OTHER NURSING STAFF; IS THAT
23 CORRECT?
24 A. YES.
25 Q. DURING ANY OF THESE TREATMENT MEETINGS, SPECIFICALLY IN
228
1 THE PERIOD OF TIME OF DECEMBER OF 1995 AND JANUARY OF 1996
2 AND TO SOME EXTENT AFTER THAT PERIOD OF TIME, WAS THERE ANY
3 DISCUSSIONS EVER MADE ABOUT THE INTAKE POLICY OF THE
4 HOSPITAL FOR THESE PATIENTS?
5 A. WELL, WE MAY HAVE ASKED IF THESE -- WE MAY HAVE ASKED
6 OURSELVES IF THESE WERE APPROPRIATE ADMISSIONS AND KIND OF
7 REVIEWED THE INITIAL FINDINGS, YOU KNOW. YOU KNOW, WE MAY
8 HAVE CHECKED OURSELVES. THERE MAY HAVE BEEN SOME -- SOME
9 DISCUSSION.
10 Q. DID DR. WEITZEL EVER INDICATE TO YOU THAT HE FELT THERE
11 WAS A PROBLEM WITH THE INTAKE?
12 A. NOT THE INTAKE SPECIFICALLY. I THINK AFTER SOME OF THE
13 ADMISSIONS OCCURRED WE ALL FELT LIKE THEY WERE PRETTY
14 SERIOUS -- SOME OF THEM WERE MORE SERIOUS MEDICALLY THAN WE
15 HAD FIRST THOUGHT.
16 Q. AND WHERE DID THAT INFORMATION COME FROM?
17 A. WELL, FROM THE -- FROM THE PATIENT THEMSELVES, FROM THE
18 HISTORY AND PHYSICAL PERFORMED. YOU KNOW, FROM THE PATIENT
19 ASSESS -- YOU KNOW, DAILY ONGOING ASSESSMENT OF THE
20 PATIENT'S CONDITION.
21 Q. OKAY. WAS ANY CRITERIA CHANGED AS FAR AS ADMISSION OF
22 PATIENTS WERE CONCERNED? AFTER -- AFTER THESE DEATHS?
23 A. THERE WAS NEW -- THERE WAS SOME ADDITIONAL EMPHASIS
24 GIVEN TO MEDICAL CONDITION, BUT THE POLICIES -- IT'S MY
25 RECOLLECTION THEY GENERALLY STAYED THE SAME. !!
229
1 Q. OKAY. THANK YOU.
2 MR. MAJOR: MAY I HAVE JUST ONE MINUTE, YOUR HONOR?
3 THE COURT: YES.
4 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION.)
5 Q. (BY MR. MAJOR) A COUPLE OF QUESTIONS JUST TO FOLLOW
6 UP. IN GOING BACK TO KIND OF WHAT WE WERE TALKING ABOUT
7 WITH TERMINAL ILLNESS. IF YOU DID AN ASSESSMENT ON A
8 PATIENT, BASED ON YOUR TRAINING AND EXPERIENCE, AND IT WERE
9 DETERMINED IN THAT ASSESSMENT THAT PATIENT HAD SIX MONTHS TO
10 LIVE, WOULD THAT PATIENT QUALIFY TO COME ON TO THIS UNIT?
11 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
12 IRRELEVANT AND I BELIEVE THE POLICY SPEAKS FOR ITSELF. IT'S
13 ALREADY BEEN ADMITTED INTO EVIDENCE.
14 MR. MAJOR: YOUR HONOR, IF I MIGHT, THE POLICY JUST
15 INDICATES TERMINAL ILLNESS AND IT INDICATES --
16 THE COURT: WELL, ARE YOU ASKING WHAT
17 RECOMMENDATION HE WOULD MAKE?
18 MR. MAJOR: THAT'S -- THAT WAS THE NATURE OF MY
19 QUESTION.
20 THE COURT: OKAY. OVERRULED.
21 Q. (BY MR. MAJOR) IF THAT WERE THE CASE, AS WE MENTIONED,
22 THERE WAS SIX MONTHS OR LESS TO LIVE, WHAT RECOMMENDATION
23 WOULD YOU MAKE ON THAT PATIENT?
24 A. I DON'T KNOW IF WE WOULD MAKE A RECOMMENDATION AS MUCH
25 AS WE WOULD GIVE A SUMMARY OF OUR FINDINGS OF THEIR MENTAL
230
1 CONDITION AND THEIR MEDICAL CONDITION BASED ON OUR INTAKE.
2 WE -- WE WOULD -- WE'D GET A CALL TO GO OUT, WE WOULD MAKE
3 AN ASSESSMENT, WE WOULD PRESENT THAT MATERIAL TO THE
4 PHYSICIAN TO MAKE A DECISION.
5 Q. AND SO YOU'RE INDICATING THAT THAT WOULD BE THE
6 PHYSICIAN'S CALL?
7 A. YES.
8 Q. SO --
9 A. EVEN IF WE KNEW THEY HAD SIX MONTHS -- WERE TOLD THEY
10 HAD SIX MONTHS TO LIVE, THAT WOULD BE THE PHYSICIAN'S CALL
11 TO -- WE'D STILL PRESENT THAT INFORMATION AND THE PHYSICIAN
12 WOULD MAKE A DECISION.
13 Q. AND DOING THIS, DURING THE PERIOD OF TIME THAT YOU WERE
14 WORKING WITH DR. WEITZEL, BASED ON YOUR TRAINING AND
15 EXPERIENCE, BASED ON YOUR UNDERSTANDING OF THE POLICIES AND
16 YOUR PSYCHO -- INTERVIEWS WITH THE PATIENTS, DID YOU HAVE
17 ANY CONCERNS ABOUT DR. WEITZEL'S ACCEPTING OR DENYING
18 PATIENTS COMING ONTO THE UNIT?
19 MR. STIRBA: YOUR HONOR, I'LL OBJECT. IRRELEVANT
20 WITH RESPECT TO THESE FIVE PATIENTS ONLY.
21 THE COURT: SUSTAINED.
22 Q. (BY MR. MAJOR) DO YOU RECALL THE ADMISSIONS OF THESE
23 FIVE PATIENTS?
24 A. NO. I MEAN, IT'S --
25 Q. AND IS DR. WEITZEL, THE DOCTOR THAT YOU DEALT WITH ON
231
1 THIS OCCASION, IS HE IN THE COURTROOM TODAY?
2 A. YES.
3 Q. CAN YOU IDENTIFY HIM FOR THE RECORD?
4 A. RIGHT THERE IN THE MIDDLE OF THE --
5 MR. MAJOR: MAY THE RECORD -- MAY THE RECORD
6 REFLECT HE'S IDENTIFIED THE DEFENDANT, YOUR HONOR?
7 THE COURT: YES.
8 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS AT THIS
9 TIME.
10 THE COURT: OKAY. LADIES AND GENTLEMEN, WE'VE BEEN
11 GOING FOR ABOUT AN HOUR. WHY DON'T WE TAKE A 15 MINUTE
12 BREAK AT THIS TIME.
13 DURING THAT BREAK IT'S YOUR DUTY NOT TO CONVERSE AMONG
14 YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE
15 ADDRESSED BY ANY OTHER PERSON ON ANY SUBJECT OF THIS TRIAL.
16 IT'S ALSO YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL
17 THE CASE IS FINALLY SUBMITTED TO YOU.
18 SO WE'LL COME BACK AT 9:45.
19 (WHEREUPON, AT THIS TIME THE JURY LEAVES COURTROOM,
20 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
21 THE COURT: THE RECORD SHOULD REFLECT THAT THE JURY
22 HAS LEFT.
23 WHEN DO YOU WISH TO ADDRESS THIS ONE ISSUE REGARDING
24 THE HOSPITAL POLICIES? I MEAN -- ARE WE GOING TO HAVE THIS
25 WITNESS CROSS-EXAMINED OR DO YOU HAVE ANOTHER WITNESS THAT
232
1 IS NOT GOING TO BE AFFECTED BY THAT MOTION?
2 MR. MAJOR: YOUR HONOR, I BELIEVE AT THIS POINT IN
3 TIME -- WITHOUT MR. WILSON HERE, I'M NOT SURE WHAT HIS
4 DESIRES ARE. I THINK HE HAS GONE BACK -- THIS IS THE FIRST
5 TIME WE'VE HAD A CHANCE TO SEE THOSE MOTIONS.
6 THE COURT: SURE.
7 MR. MAJOR: I THINK HE IS RIGHT NOW REVIEWING THOSE
8 MOTIONS AND GETTING READY.
9 THE COURT: OKAY. WELL, WHY DON'T YOU -- I THOUGHT
10 HE SAID YOU HAD TWO WITNESSES, AND SO IF YOU HAVE ONE OTHER
11 ONE --
12 MR. MAJOR: YEAH.
13 THE COURT: -- WE MIGHT WAIT, YOU KNOW, UNTIL LATER
14 AND THEN -- HOW LONG DO YOU THINK YOU'RE GOING TO BE ON
15 CROSS-EXAMINATION?
16 MR. STIRBA: OH, 20 MINUTES, HALF AN HOUR, I'D
17 EXPECT.
18 THE COURT: OKAY.
19 MR. MAJOR: AND THEN OUR NEXT WITNESS WE ANTICIPATE
20 WILL BE WELBY -- DR. WELBY JENSEN, YOUR HONOR, AND I'M NOT
21 SURE HOW LONG HE WOULD TAKE, SPECIFICALLY.
22 THE COURT: OKAY. BUT HE WOULD NOT NECESSARILY
23 SPEAK TO THIS -- THE ISSUE OF THIS MOTION?
24 MR. MAJOR: NO, I DON'T BELIEVE SO.
25 THE COURT: OKAY. WELL THEN MAYBE WE'LL DO IT
233
1 AFTER HIM. WE'LL DO IT SOMETIME. SO WE'LL BE BACK --
2 MR. MAJOR: PERHAPS WE COULD BREAK A HALF HOUR
3 EARLY FOR LUNCH AND --
4 THE COURT: WELL, THAT'S WHAT I'M TRYING TO THINK
5 OF, DEPENDING ON WHERE WE ARE WITH THE WITNESSES.
6 OKAY. THEN LET'S COME BACK AT 9:45.
7 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
8 PROCEEDINGS RESUME IN THE HEARING OF THE JURY, AS FOLLOWS:)
9 THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT
10 COUNSEL ARE PRESENT WITH DEFENDANT, AND THE JURY ARE ALL
11 PRESENT.
12 MR. STIRBA?
13 MR. STIRBA: THANK YOU, YOUR HONOR.
14 CROSS-EXAMINATION
15 BY MR. STIRBA:
16 Q. GOOD MORNING, MR. CHAMBERS.
17 A. GOOD MORNING.
18 Q. YOU TESTIFIED EARLIER ABOUT A NUMBER OF ASSESSMENTS THAT
19 TYPICALLY WERE DONE WITH PATIENTS WHO WERE ADMITTED TO THE
20 UNIT. DO YOU RECALL THAT?
21 A. YES.
22 Q. AND IT'S TRUE, IS IT NOT, THAT ONE OF THE ASSESSMENTS
23 THAT WAS TO BE DONE -- OR AN EVALUATION WAS TO BE DONE BY A
24 MEDICAL DOCTOR, TYPICALLY AN INTERNAL MEDICINE DOCTOR, AND
25 THAT WAS THE HISTORY AND PHYSICAL OF THE PATIENT; IS THAT
234
1 CORRECT?
2 A. YES.
3 Q. AND IT'S TRUE THAT THAT DOCTOR WAS SUPPOSED TO DO THAT
4 WITHIN 24 HOURS OF THE ADMISSION OF A PATIENT ON TO THE
5 UNIT, CORRECT?
6 A. YES.
7 Q. AND ONE OF THE PURPOSES CERTAINLY OF DOING THAT HISTORY
8 AND PHYSICAL WAS TO PROVIDE CERTAIN MEDICAL INFORMATION, IF
9 YOU WILL, THAT MIGHT BE HELPFUL AND USEFUL FOR PURPOSES OF
10 TREATMENT, CORRECT?
11 A. THAT'S MY UNDERSTANDING.
12 Q. FOR EXAMPLE, THAT MEDICAL DOCTOR WOULD CONDUCT
13 ESSENTIALLY A SYSTEMS REVIEW, TRUE?
14 A. YES.
15 Q. AND WOULD GO OVER THE PREVIOUS MEDICATIONS THAT THE
16 PATIENT HAD BEEN ON, TRUE?
17 A. YES.
18 Q. AND, ALSO, WOULD DO A COMPREHENSIVE PHYSICAL AND
19 COMPREHENSIVE HISTORY; ISN'T THAT TRUE?
20 A. THAT'S TRUE.
21 Q. AND ALL THAT INFORMATION THEN WOULD BE GENERATED AND
22 WOULD BECOME PART OF THE PATIENT'S CHART, CORRECT?
23 A. YES.
24 Q. AND CERTAINLY THAT WOULD BE HELPFUL AND CERTAINLY COULD
25 BE HELPFUL FOR PURPOSES OF ANY PSYCHIATRIC TREATMENT,
235
1 CORRECT?
2 A. YES.
3 Q. NOW, THAT WAS ONE ASSESSMENT, AND THEN THERE WAS ANOTHER
4 ASSESSMENT THAT YOU TESTIFIED TO THAT WAS DONE BY A SOCIAL
5 WORKER, CORRECT?
6 A. YES.
7 Q. AND THAT SOCIAL WORKER, I BELIEVE YOU TESTIFIED, HAD TO
8 DO HIS OR HER ASSESSMENT WITHIN 72 HOURS, TRUE?
9 A. YES.
10 Q. AND ONCE AGAIN, THAT WOULD BE A -- A REVIEW, I GUESS, OF
11 THE PATIENT'S SITUATION FROM THE EXPERTISE AND PERSPECTIVE
12 OF A SOCIAL WORKER, CORRECT?
13 A. YES.
14 Q. AND THAT WAS ALSO WRITTEN AND -- AND -- AND THERE WAS A
15 DOCUMENT CREATED THAT WAS CALLED A SOCIAL WORK ASSESSMENT ON
16 THE PATIENT, TRUE?
17 A. I BELIEVE SO.
18 Q. AND THAT DOCUMENT, TOO, WAS ALL PART OF THE PROCESS AND
19 COULD BE HELPFUL FOR PURPOSES OF PROVIDING APPROPRIATE
20 PSYCHIATRIC TREATMENT OR CARE, CORRECT?
21 A. YES.
22 Q. AND THEN YOU TOLD US ABOUT A NURSING ASSESSMENT.
23 REMEMBER THAT?
24 A. YES.
25 Q. AND THAT WAS AN ASSESSMENT THAT WOULD BE DONE TYPICALLY
236
1 EITHER ON ADMISSION OR WITHIN A SHORT TIME THEREAFTER,
2 CORRECT?
3 A. YES.
4 Q. AND IT'S TRUE, IS IT NOT, THAT THERE WAS A FAIRLY
5 LENGTHY FORM, IN OTHER WORDS, MORE THAN 10 PAGES, WHERE A
6 NURSE WOULD OTHERWISE CHART OR REFLECT ANSWERS TO VARIOUS
7 QUESTIONS BASED UPON HIS OR HER ASSESSMENT, CORRECT?
8 A. YES. I DON'T REMEMBER THE EXACT NUMBER OF PAGES.
9 Q. BUT THERE WAS A FORM, TRUE?
10 A. IT WAS A LENGTHY FORM.
11 Q. AND -- AND THE INFORMATION THERE WAS PARTLY MEDICAL,
12 CORRECT?
13 A. YES.
14 Q. AND ALSO DEALT WITH THE PATIENT'S FAMILY, TRUE?
15 A. YEAH. THE FAMILY STUFF WAS MORE IN THE SOCIAL WORK
16 ASSESSMENT THAN IN THE NURSING ASSESSMENT, BUT THERE'S
17 PROBABLY SOME IN THE NURSING ASSESSMENT.
18 Q. AND THERE WAS SOME ISSUE THERE IN THE NURSING ASSESSMENT
19 ABOUT DAILY LIVING ABILITIES AND WHAT HAVE YOU; IS THAT
20 TRUE?
21 A. YES.
22 Q. AND THERE WAS ALSO A PLACE THERE FOR, ONCE AGAIN, A
23 REVIEW OF THE MEDICATIONS THAT THE PATIENT WAS ON ON
24 ADMISSION, CORRECT?
25 A. YES.
237
1 Q. AND ALSO THERE WAS A PLACE WHERE THE HISTORY, THE
2 MEDICAL HISTORY OF THE PATIENT WAS ALSO REVIEWED AND
3 CHARTED, TRUE?
4 A. YES.
5 Q. AND ONCE AGAIN, THAT NURSING ASSESSMENT FORM WAS PART OF
6 THE MEDICAL RECORD AND MIGHT BE HELPFUL AND USEFUL FOR
7 PURPOSE OF PROVIDING PSYCHIATRIC CARE, TRUE?
8 A. YES.
9 Q. AND IT'S TRUE, IS IT NOT, THAT WHEN A PATIENT WAS
10 ADMITTED TO THE UNIT, THEY WOULD RECEIVE ON A DAILY BASIS,
11 IF ABLE, ESSENTIALLY CERTAIN TREATMENT IN THE TERMS OF GROUP
12 THERAPY AND THE LIKE, CORRECT?
13 A. YES.
14 Q. FOR EXAMPLE, THERE WAS AN OCCUPATIONAL THERAPIST WHO
15 WOULD CONSULT WITH THE PATIENTS EVERY ONCE IN A WHILE; ISN'T
16 THAT TRUE?
17 A. YES, WHEN APPROPRIATE.
18 Q. AND THOSE -- THOSE TREATMENT GROUPS, THERAPY, THEY WOULD
19 BE PROVIDED TO THE PATIENTS AS WELL; IS THAT RIGHT?
20 A. YES.
21 Q. AND WERE THERE OTHER FORMS OF GROUP THERAPY PROVIDED IN
22 ADDITION TO AN OCCUPATIONAL THERAPY CONSULT?
23 A. YES.
24 Q. TELL US, PLEASE, WHAT THOSE ADDITIONAL GROUP THERAPIES
25 WERE.
238
1 A. THERE WAS THE GROUP PSYCHOTHERAPY CONDUCTED BY THE
2 SOCIAL WORKER; THERE COULD BE A NURSING EDUCATION GROUP
3 ABOUT MEDICATION, PSYCHIATRIC DIAGNOSIS, SIDE EFFECTS,
4 CONDUCTED BY THE NURSES. AND THEN THE -- KIND OF AN
5 ACTIVITY THERAPY SORT OF GROUP, ALSO -- I THINK IT WAS ALSO
6 CONDUCTED BY THE NURSING STAFF AS WELL.
7 Q. AND ALL THAT INFORMATION, ONCE AGAIN, WOULD HAVE BEEN
8 DOCUMENTED AND PLACED IN THE MEDICAL CHART OF THE PATIENT;
9 IS THAT RIGHT?
10 A. YES.
11 Q. AND IT'S TRUE, IS IT NOT, THAT IF YOU'RE A NURSE WORKING
12 ON THE UNIT, YOU WOULD HAVE FULL ACCESS TO THE PATIENT'S
13 MEDICAL CHART, CORRECT?
14 A. YES.
15 Q. AND IT'S TRUE THAT, FOR EXAMPLE, IN YOUR POSITION AS THE
16 PROGRAM DIRECTOR, YOU HAD FULL ACCESS TO THE PATIENT'S
17 CHART, TRUE?
18 A. YES.
19 Q. AND IT'S TRUE, IS IT NOT, THAT PHYSICIANS, WHETHER THEY
20 BE INTERNAL MEDICINE DOCTORS OR PSYCHIATRISTS WOULD HAVE
21 FULL ACCESS TO THE MEDICAL CHART, CORRECT?
22 A. YES.
23 Q. AND IT'S TRUE, IS IT NOT, THAT THERE WERE TIMES WHEN A
24 MEDICAL SITUATION WOULD ARISE SUCH THAT A PSYCHIATRIST OR
25 SOMEONE ELSE WOULD ASK FOR AN OUTSIDE CONSULT FROM A MEDICAL
239
1 DOCTOR, CORRECT?
2 A. YES.
3 Q. FOR EXAMPLE, IF THERE WAS A GYNECOLOGICAL ISSUE, IT
4 WOULD NOT BE UNHEARD OF TO HAVE A GYNECOLOGIST COME IN AND
5 PROVIDE A CONSULT WITH RESPECT TO THAT MEDICAL PROBLEM,
6 TRUE?
7 A. THAT'S TRUE.
8 Q. AND SIMILARLY, THOSE -- THOSE CONSULTS AND THE RESULTS
9 OF THOSE CONSULTS, THEY WOULD BE ASSESSABLE BY ANYBODY WHO
10 WAS PART OF THE TREATMENT TEAM, TRUE?
11 A. YES.
12 Q. AND THEY WOULD ALL BE IN PART OF THAT MEDICAL FILE FOR
13 THE PATIENT, CORRECT?
14 A. YES.
15 Q. IT'S TRUE, IS IT NOT, THAT ESSENTIALLY THE WAY CARE WAS
16 BEING PROVIDED, IT WAS BEING PROVIDED BASED UPON A TEAM
17 APPROACH, CORRECT?
18 A. YES.
19 Q. IN OTHER WORDS, YOU TOOK A BUNCH OF FOLKS WHO HAD
20 VARIOUS SPECIALITIES IN VARIOUS AREAS TO ESSENTIALLY TEAM
21 MANAGE THE PSYCHIATRIC PROBLEM, CORRECT?
22 A. TRUE.
23 Q. AND CERTAINLY ONE OF -- ONE OF THE PLAYERS, IF YOU WILL,
24 IN THAT TEAM WOULD HAVE BEEN THE PSYCHIATRIST, CORRECT?
25 A. YES. THE PSYCHIATRIST WAS THE LEAD PLAYER.
240
1 Q. AND, IN FACT, THE PSYCHIATRIST, BECAUSE OF THEIR
2 POSITION AS A MEDICAL DOCTOR, THEY CERTAINLY WERE NEEDED
3 BECAUSE IF YOU'RE DEALING WITH PSYCHOTROPIC OR PSYCHIATRIC
4 MEDICATIONS, THAT COULD ONLY BE PRESCRIBED OR ORDERED BY A
5 PHYSICIAN, CORRECT?
6 A. YES.
7 Q. AND IT'S TRUE, IS IT NOT, THAT SOCIAL WORKERS WERE
8 INVOLVED IN THE TEAM, CORRECT?
9 A. YES.
10 Q. NURSES WERE INVOLVED IN THE TEAM, CORRECT?
11 A. YES.
12 Q. OCCUPATIONAL THERAPISTS WERE INVOLVED IN THE TEAM,
13 CORRECT?
14 A. YES.
15 Q. NURSES' AIDES WERE PART OF THE TEAM, TRUE?
16 A. YES.
17 Q. RESPIRATORY THERAPISTS AT TIMES WERE PART OF THE TEAM,
18 TRUE?
19 A. AT TIMES.
20 Q. AND ALL THESE PEOPLE ESSENTIALLY HAD ONE GOAL AND THAT
21 IS TO TRY TO PROVIDE, TO THE BEST OF ANYONE'S JUDGMENT, THE
22 BEST CARE THAT COULD BE PROVIDED FOR THE PATIENT GIVEN THEIR
23 PARTICULAR CIRCUMSTANCE; ISN'T THAT TRUE?
24 A. YES.
25 Q. NOW, YOU TOLD US ABOUT THE -- THE POLICIES AND YOU WERE
241
1 SHOWN, I GUESS, AN EXHIBIT. AND I THOUGHT, IF I HEARD YOU
2 CORRECTLY, YOU TESTIFIED THAT THOSE POLICIES THAT YOU SAW
3 WERE, IN FACT, IN EFFECT IN DECEMBER OF 1995 AND JANUARY OF
4 1996, CORRECT?
5 A. YES.
6 Q. AND I THOUGHT YOU SAID THAT THEY WERE IN EFFECT, BUT
7 ESSENTIALLY THEY WERE GUIDELINES, NOT NECESSARILY HARD AND
8 FAST IN ALL CASES; IS THAT CORRECT?
9 A. THAT'S CORRECT.
10 Q. AND -- AND THE REASON FOR THAT, IS IT NOT, IS BECAUSE
11 WHEN YOU AND -- AND, FOR INSTANCE, MR. PERRY WOULD GO OUT
12 AND MAKE AN ASSESSMENT, A PSYCHOSOCIAL ASSESSMENT, YOU --
13 YOU UNDERSTAND THAT THAT IS NOT NECESSARILY ALWAYS A PRECISE
14 SCIENCE, CORRECT?
15 A. YES.
16 Q. CERTAINLY THERE ARE COMPLICATIONS, DIFFICULTIES, MATTERS
17 FOR WHICH YOU OR NO ONE ELSE COULD NECESSARILY ANTICIPATE,
18 TRUE?
19 A. TRUE.
20 Q. AND IT'S TRUE, IS IT NOT, THAT WHEN YOU WENT OUT AND
21 MADE A PSYCHOSOCIAL ASSESSMENT, YOU HAD A FORM, DID YOU NOT,
22 ESSENTIALLY AN INTAKE FORM THAT WAS PROVIDED WHICH WOULD
23 HAVE BEEN PART OF THE MEDICAL RECORD, CORRECT?
24 A. YES.
25 MR. STIRBA: IF I MAY APPROACH, YOUR HONOR?
242
1 THE COURT: YES.
2 Q. (BY MR. STIRBA) MR. CHAMBERS, I'M GOING TO SHOW YOU
3 WHAT IS PART OF A MEDICAL FILE AND IT'S DOCUMENT MED --
4 MED-00230 WHICH IS PART OF THE MEDICAL FILE FOR, I BELIEVE,
5 MARY CRANE. DO YOU SEE THAT?
6 A. YES.
7 Q. AND ON THAT DOCUMENT, DO YOU SEE SOME WRITING THAT IS
8 YOURS?
9 A. YES.
10 Q. AND IS YOUR SIGNATURE ON THAT DOCUMENT?
11 A. YES.
12 Q. AND TELL US GENERALLY WHAT THAT DOCUMENT IS.
13 A. THIS IS A INTAKE FORM. THE -- THE FIRST PART OF THE
14 FORM ABOVE THE HEAVY LINE WAS WHERE WE WOULD DOCUMENT A
15 PHONE CALL SAY FROM A NURSING HOME. THEY'D GIVE US SOME
16 PRELIMINARY INFORMATION, WE'D WRITE THAT DOWN.
17 THE INFORMATION BELOW THE HEAVY LINE WAS -- WERE OUR
18 FINDINGS BASED ON A FACE-TO-FACE ASSESSMENT. I -- AS I
19 RECALL, THAT'S HOW THIS FORM WAS USED.
20 Q. DO YOU HAVE -- AS YOU SIT HERE TODAY, DO YOU HAVE ANY
21 RECOLLECTION SPECIFICALLY OF TALKING TO DR. WEITZEL OR
22 ANYONE ELSE FOR THAT MATTER ABOUT MARY CRANE?
23 A. NO, NOT MARY CRANE SPECIFICALLY.
24 Q. AND WOULD THE SAME BE TRUE WITH RESPECT TO PATIENT
25 JUDITH -- JUDITH LARSEN?
243
1 A. NO SPECIFIC RECOLLECTION.
2 Q. AND WOULD THE SAME BE TRUE WITH RESPECT TO PATIENT LYDIA
3 SMITH?
4 A. YES.
5 Q. WOULD THE SAME BE TRUE WITH RESPECT TO PATIENT ELLEN
6 ANDERSON?
7 A. YES.
8 Q. AND WOULD THE SAME BE TRUE WITH RESPECT TO PATIENT ENNIS
9 ALLDREDGE?
10 A. YES.
11 MR. STIRBA: YOUR HONOR, I WOULD LIKE TO DISPLAY
12 THIS TO THE JURY. WE HAVE A STIPULATION AS TO MEDICAL
13 RECORDS. THIS IS PART OF ONE OF THE STIPULATED DOCUMENTS.
14 I DON'T WANT TO OFFER IT AS A SEPARATE EXHIBIT, BUT --
15 THE COURT: IS THERE ANY OBJECTION TO HAVE THAT
16 BEING SHOWN?
17 MR. MAJOR: NO OBJECTION, YOUR HONOR. I'M ONLY A
18 LITTLE CONCERNED THAT APPARENTLY IT HAS BEEN MARKED.
19 MR. STIRBA: THESE MARKINGS WILL NOT BE DISPLAYED,
20 I HOPE, ON THE ELMO.
21 MR. MAJOR: I HAVE NO OBJECTION TO THAT, YOUR
22 HONOR.
23 THE COURT: OKAY. GO AHEAD.
24 Q. (BY MR. STIRBA) NOW, THAT'S THE DOCUMENT YOU WERE JUST
25 TESTIFYING TO AND IT SAYS AT THE TOP, PSYCHIATRIC PHONE
244
1 INTAKE. DO YOU SEE THAT?
2 A. YEAH. IT ACTUALLY SAYS -- YOU CAN'T SEE IT BECAUSE OF
3 THE HOLE PUNCH MARK.
4 Q. OH, OKAY.
5 A. IT SAYS GEROPSYCHIATRIC PHONE INTAKE.
6 Q. THANK YOU. AND YOU HAVE A REFERENCE TO A PATIENT NAMED
7 MARY CRANE UP IN THE RIGHT-HAND CORNER, CORRECT?
8 A. MARY CRANE'S NAME --
9 Q. RIGHT-HAND SIDE.
10 A. YOU SAID YOU. MOST OF THIS HANDWRITING IS BY KEITH
11 PERRY.
12 Q. I -- I WAS GOING TO GET TO THAT. I'M JUST TALKING ABOUT
13 THE DOCUMENT.
14 A. OKAY. WELL, YEAH, MARY -- GOT YOU.
15 Q. OKAY. I APPRECIATE THE CLARIFICATION. AND THEN THERE
16 IS THAT SIGNATURE, AND IT HAS K.P. THAT STANDS FOR KEITH
17 PERRY.
18 A. YES.
19 Q. SO YOU DON'T WANT TO TAKE CREDIT FOR AUTHORING THIS
20 DOCUMENT.
21 A. I -- ONLY THE VERY BAD WRITING IS MINE.
22 Q. OKAY.
23 A. SOME OF MY WRITING IS ON THERE.
24 Q. WE'LL GET TO THE BAD WRITING SHORTLY. AND THE INTAKE
25 EVALUATION WHERE I'M POINTING TO THERE, CAN YOU JUST
245
1 GENERALLY TELL US WHAT -- WHAT THAT IS PURPORTING TO BE, WHY
2 THAT INFORMATION IS THERE?
3 A. YEAH. THIS WAS THE MECHANICIAN WE USED TO DOCUMENT OUR
4 FINDINGS WHEN WE GO OUT TO ASSESS A POTENTIAL PATIENT.
5 Q. WELL, IF I PUT THE DOCUMENT UP LIKE THAT, HAVE WE GOTTEN
6 TO SOME WRITING WHICH YOU BELIEVE IS YOURS?
7 A. YES.
8 Q. AND PERHAPS IF YOU COULD JUST MAYBE APPROACH THE WHITE
9 BOARD AND POINT OUT WHAT WRITING IS YOURS.
10 A. THIS IS THE TAIL END OF MY SIGNATURE. EDEMA,
11 HYPERTENSION, THESE -- THIS -- THIS IS MY WRITING. 60 DAYS
12 IS CIRCLED UP THERE, THAT WAS MY WRITING.
13 Q. AND WAS THERE A PARTICULAR REASON ON THIS DOCUMENT THAT
14 YOU WOULD HAVE WRITTEN ON IT SUCH THAT YOU JUST DESCRIBED?
15 A. YES. KEITH PERRY MAY HAVE HALF A DOZEN OF THESE INTAKE
16 FORMS IN VARYING DEGREES OF PROGRESS ON HIS DESK. AND HE
17 MAY HAVE APPOINTMENTS OR AN IN-SERVICE OR A TRAINING TO GIVE
18 THROUGHOUT THE DAY ALL OVER THE -- THE AREA.
19 AND SO HE WOULD LEAVE TWO OR -- HE'D TAKE HIS TWO OR
20 THREE FORMS AND GO TO HIS APPOINTMENTS. HE'D HAVE TWO OR
21 THREE LEFT ON HIS DESK AND SAY TODD, WE MAY BE EXPECTING A
22 CALL FROM SO AND SO. IF SO, HERE'S THE SITUATION, HERE'S
23 THE ADDITIONAL INFORMATION WE STILL NEED, AND SO FORTH. AND
24 SO I'D GET THE PHONE CALL OR I WOULD GO OUT AND -- AND
25 FOLLOW UP ON AN ASSESSMENT AND I WOULD ADD MY FINDINGS TO
246
1 HIS FINDINGS.
2 Q. NOW, ON THIS PARTICULAR FORM, IF -- IF I LOOK ON THE
3 DOCUMENT YOU SEE A PLACE WHERE IT SAYS MEDICATIONS. DO YOU
4 SEE THAT?
5 A. YES.
6 Q. AND THOSE MEDICATIONS ARE A LISTING, AT LEAST AS
7 REPORTED TO MR. PERRY, OF WHAT MEDICATIONS MS. CRANE WOULD
8 HAVE BEEN ON PRIOR TO ADMISSION; IS THAT CORRECT?
9 A. THAT'S MY UNDERSTANDING.
10 Q. AND THEN ALSO I NOTICE IN THE MIDDLE SECTION WHERE IT
11 SAYS PRESENTING PROBLEM, DO YOU SEE THAT?
12 A. YES.
13 Q. IT SAYS A-L-Z UNIT -- I PRESUME THAT STANDS FOR
14 ALZHEIMER'S UNIT?
15 A. AT THE NURSING HOME.
16 Q. AND THEN THERE'S POST-STROKE '89. DO YOU SEE THAT?
17 A. YES.
18 Q. AND IS THIS AN AREA WHERE MR. PERRY'S REPRESENTING HIS
19 UNDERSTANDING OF THE CIRCUMSTANCES SUCH THAT MR. CRANE IS
20 SEEKING ADMISSION TO THE UNIT?
21 A. YES.
22 Q. FOR EXAMPLE, HE WRITES: FLUID RESTRICTION DIET,
23 DRINKING OUT OF TOILET, SPITTING, MANIPULATION, PATIENT
24 SEEKING FLUIDS CONTINUALLY, HITTING, VERBALLY ABUSIVE, RUNS
25 INTO OTHER -- LOOKS LIKE WITH WHEELCHAIR -- SCREAMING.
247
1 PATIENT SEEKING FLUIDS CONTINUALLY. STUCK FINGERS DOWN
2 THROAT, AND THEN THERE'S AN ARROW, THROW-UP. AND I REALLY
3 CAN'T READ THE REST OF THAT.
4 WOULD THOSE BE THE KINDS OF BEHAVIORS THAT -- THAT YOU
5 WOULD ASSOCIATE WITH AN APPROPRIATE ADMISSION TO THE
6 GEROPSYCH UNIT?
7 A. YES.
8 Q. NOW, YOU'RE AWARE, ARE YOU NOT, MR. CHAMBERS, OF AN
9 EXISTENCE OF A CONTRACT BETWEEN HORIZON AND THE HOSPITAL?
10 A. YES, I AM.
11 Q. AND IT'S TRUE, IS IT NOT, THAT WHEN HORIZON STARTED TO
12 PROVIDE SERVICES TO THE HOSPITAL, THEY HAD A WRITTEN
13 DOCUMENT, A WRITTEN CONTRACT WHICH DELINEATED, I GUESS, THE
14 RESPONSIBILITIES OF HORIZON AND THE RESPONSIBILITIES OF THE
15 HOSPITAL; ISN'T THAT TRUE?
16 A. YES.
17 MR. STIRBA: MAY I APPROACH, YOUR HONOR?
18 THE COURT: YES.
19 Q. (BY MR. STIRBA) I'M GOING TO SHOW YOU WHAT HAS BEEN
20 MARKED AS D-1 AND ASK IF YOU CAN IDENTIFY THAT DOCUMENT.
21 A. THIS LOOKS LIKE THE CONTRACT BETWEEN HORIZON --
22 MR. MAJOR: YOUR HONOR --
23 THE WITNESS: PARDON ME?
24 MR. MAJOR: -- WE HAVE NOT SEEN THAT DOCUMENT. DO
25 WE HAVE A COPY OF THAT?
248
1 MR. STIRBA: I BELIEVE IT WAS PRODUCED BY THE
2 COUNTY ATTORNEY'S OFFICE, AND I WAS GOING TO SHOW IT TO THEM
3 IF I OFFERED IT, YOUR HONOR.
4 THE COURT: OKAY.
5 MR. MAJOR: THANK YOU.
6 A. I BELIEVE THIS IS THE CONTRACT BETWEEN DAVIS HOSPITAL
7 AND HORIZON MENTAL HEALTH MANAGEMENT. IT SAYS JULY 1994 ON
8 THE FRONT, AND I -- THAT'S -- THE SIGNATURES AREN'T DATED,
9 BUT I'D JUST HAVE TO CHECK MY RESUME OR MY TIME FRAMES. IT
10 SEEMS EARLY.
11 Q. (BY MR. STIRBA) DO YOU BELIEVE THAT IS THE CONTRACT
12 THEN BETWEEN THE HOSPITAL AND HORIZON WHEREBY HORIZON
13 PROVIDED CERTAIN SERVICES AND THE HOSPITAL PROVIDED CERTAIN
14 SUPPORT FOR THOSE SERVICES?
15 A. YES.
16 MR. MAJOR: YOUR HONOR, I --
17 MR. STIRBA: WE'D OFFER D-1, YOUR HONOR.
18 MR. MAJOR: WE HAVE NO OBJECTION, YOUR HONOR.
19 THE COURT: OKAY. EXHIBIT D-1 IS RECEIVED.
20 MR. STIRBA: I'LL HAND THAT BACK TO YOU, SIR.
21 THE WITNESS: THANK YOU.
22 MR. MAJOR: COULD WE HAVE A COPY OF THAT, YOUR
23 HONOR?
24 (WHEREUPON, MR. STIRBA TENDERS DOCUMENT TO MR. MAJOR.)
25 Q. (BY MR. STIRBA) NOW, THAT CONTRACT -- IF YOU LOOK AT
249
1 THE FRONT PAGE IT STATES -- SAYS GENERAL HOSPITALS OF GALEN,
2 INC, D/B/A DAVIS HOSPITAL AND MEDICAL CENTER, LAYTON, UTAH.
3 AND THEN IT HAS COLUMBIA H.C.A. HEALTH CARE CORPORATION.
4 AND THEN UNDERNEATH THAT HORIZON MENTAL HEALTH SERVICES, SAN
5 FRANCISCO, CALIFORNIA, JULY 1994.
6 DID I READ THAT CORRECTLY?
7 A. YES.
8 Q. AND YOU WERE EMPLOYED BY HORIZON MENTAL HEALTH SERVICES?
9 A. I WAS EMPLOYED BY HORIZON MENTAL HEALTH MANAGEMENT WHICH
10 I BELIEVE IS A SUBSIDIARY OF HORIZON MENTAL HEALTH SERVICES.
11 Q. IF YOU WOULD TURN TO PAGE 4, PLEASE. AND THERE IT HAS A
12 SECTION CALLED COVENANTS OF HORIZON. DO YOU SEE THAT?
13 A. YES.
14 Q. AND IF YOU GO DOWN TO SUBSECTION (C), IT HAS MEDICAL
15 DIRECTOR(S), DIRECTORS. DO YOU SEE THAT?
16 A. YES.
17 Q. AND IT -- IT SAYS PART-TIME, TRUE?
18 A. TRUE.
19 Q. I MEAN, DO YOU UNDERSTAND AS YOU SIT HERE THAT BOTH
20 DR. JENSEN AND DR. WEITZEL HAD A CONTRACT THAT DELINEATED
21 THEIR OBLIGATIONS AND RESPONSIBILITIES WITH HORIZON?
22 A. YES, I DID.
23 Q. YOU UNDERSTAND THAT TO BE THE CASE?
24 A. YES.
25 Q. ALL RIGHT. THEN IF YOU'D TURN TO PAGE 6, PLEASE.
250
1 A. UH-HUH.
2 Q. SUBSECTION (C). DO YOU SEE THAT?
3 A. YES.
4 Q. IT STATES: HORIZON SHALL CONSULT WITH HOSPITAL IN THE
5 SELECTION OF ITS PROGRAM DIRECTOR, MEDICAL DIRECTOR, AND ALL
6 MEMBERS OF ITS PROGRAM STAFF FOR THE PROGRAM.
7 HORIZON SHALL NOT OFFER EMPLOYMENT OR CONTINUE TO
8 EMPLOYEE ON -- ON THE JOB SITE ANY INDIVIDUAL, NOR SHALL
9 HORIZON HIRE ANY INDEPENDENT CONTRACTOR, OR CONTINUE TO
10 ENGAGE ANY INDEPENDENT CONTRACTOR TO -- TO WHOM THE HOSPITAL
11 REASONABLY OBJECTS.
12 DID I READ THAT CORRECTLY?
13 A. YES.
14 Q. AND THEN IT SAYS AT THE BOTTOM OF THAT PARAGRAPH,
15 NOTWITHSTANDING ANYTHING TO THE CONTRARY, IT IS AGREED THAT
16 ANY PROGRAM EMPLOYEE OR CONTRACTOR SHALL BE IMMEDIATELY
17 REMOVED FROM THE PROGRAM IF HOSPITAL DETERMINES THAT THE
18 INDIVIDUAL CONSTITUTES A THREAT TO PATIENT SAFETY OR
19 WELFARE.
20 DID I READ THAT CORRECTLY?
21 A. YES.
22 Q. AND THEN IF YOU'LL FLIP TO PAGE 7, WHICH IS THE NEXT
23 PAGE, IT TALKS ABOUT THE FEES THAT HORIZON IS TO RECEIVE,
24 CORRECT?
25 A. YES.
251
1 Q. AND IT'S TRUE, IS IT NOT, THAT THERE IS A -- A FORMULA
2 THAT IS CONTAINED IN THAT SUBSECTION?
3 A. YES.
4 Q. AND IT'S TRUE, IS IT NOT, THAT THAT FORMULA IS IN PART
5 BASED UPON THE NUMBER OF PATIENTS THAT THE UNIT HAS AT ANY
6 ONE TIME OVER A PERIOD OF TIME?
7 A. YES. I THINK -- I BELIEVE -- MY UNDERSTANDING IS THE
8 RATE WENT UP OR DOWN DEPENDING ON THE AVERAGE DAILY CENSUS.
9 Q. THANK YOU. THAT'S ALL I'M GOING TO ASK YOU ABOUT THIS
10 EXHIBIT.
11 NOW, MR. CHAMBERS --
12 MR. STIRBA: MAY I APPROACH, YOUR HONOR?
13 THE COURT: YES.
14 Q. (BY MR. STIRBA) I'M GOING TO SHOW YOU WHAT HAS BEEN
15 MARKED AS D-23, ASK YOU IF YOU'VE SEEN THAT BEFORE?
16 A. YES, I HAVE.
17 Q. AND JUST GENERALLY TELL US, PLEASE --
18 MR. MAJOR: YOUR HONOR, WE'D LIKE TO AT LEAST HAVE
19 AN OPPORTUNITY TO EXAMINE THAT DOCUMENT BEFORE IT'S
20 INTRODUCED. WE MAY HAVE AN OBJECTION IF IT'S WHAT I'M
21 THINKING IT IS.
22 THE COURT: OKAY. WELL, I THINK IT NEEDS TO BE
23 IDENTIFIED AND THEN --
24 MR. STIRBA: WELL, I'LL -- I'LL GIVE COUNSEL A
25 COPY.
252
1 THE COURT: OKAY.
2 (WHEREUPON, MR. STIRBA TENDERS DOCUMENT TO MR. MAJOR.)
3 Q. (BY MR. STIRBA) AND COULD YOU GENERALLY, PLEASE,
4 IDENTIFY --
5 MR. MAJOR: YOUR HONOR, I THINK WE HAVE AN
6 OBJECTION TO THIS DOCUMENT, IF WE MIGHT HAVE JUST ONE
7 MINUTE.
8 THE COURT: WELL, IT HASN'T BEEN OFFERED YET, SO
9 LET'S SEE IF HE CAN IDENTIFY THE DOCUMENT FIRST.
10 MR. MAJOR: WELL, THAT'S PART OF THE PROBLEM WE
11 HAVE. IF WE MIGHT APPROACH THE BENCH, YOUR HONOR?
12 THE COURT: YES.
13 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION AT THE
14 BENCH.)
15 THE COURT: OKAY. LADIES AND GENTLEMEN, THERE IS
16 AN ISSUE -- A LEGAL ISSUE THAT WE HAVE TO TALK ABOUT ABOUT
17 THIS NEXT EXHIBIT, AND SO WHAT I WOULD SUGGEST IS YOU JUST
18 STAY NEARBY. IF YOU WANT TO GO OUTSIDE, THAT'S FINE, BUT
19 JUST BE RIGHT, YOU KNOW, SOMEWHERE NEAR SO THAT THE BAILIFF
20 CAN GET TO YOU. I DON'T THINK THIS IS GOING TO BE A
21 PROLONGED PERIOD OF TIME.
22 BUT AS I'VE TOLD YOU BEFORE, DO NOT CONVERSE AMONG
23 YOURSELVES OR ALLOW ANYONE TO ADDRESS YOU ABOUT ANY SUBJECT
24 OF THIS TRIAL. IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN
25 OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO YOU.
253
1 AND WE'LL BE IN A BRIEF RECESS WHILE WE ARGUE ABOUT THE
2 ISSUE.
3 (WHEREUPON, AT THIS TIME THE JURY LEAVES THE COURTROOM,
4 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
5 THE COURT: YOU CAN -- YEAH, YOU CAN SIT WHEREVER
6 YOU'D LIKE.
7 OKAY. THE JURY IS NOW OUT AND THERE WAS A EXHIBIT D-23
8 THAT WAS BEING PRESENTED TO THE WITNESS, MR. CHAMBERS.
9 AT -- AT THE BENCH COUNSEL RAISED AN ISSUE REGARDING --
10 COUNSEL FOR THE STATE -- THAT THEY HAD SUBPOENAED RECORDS
11 FROM HORIZON MENTAL HEALTH, BUT THEY DID RECEIVE THIS
12 EXHIBIT. DEFENSE COUNSEL INDICATED THAT THEY'D SUBPOENAED
13 THE RECORDS AND HAD RECEIVED THIS EXHIBIT. SO WHAT EXACTLY
14 IS THE PROBLEM?
15 MR. MAJOR: YOUR HONOR, THE PROBLEM IS WHEN WE
16 INITIALLY BEGAN THE INVESTIGATION -- AS A MATTER OF FACT, IT
17 WAS ONLY A FEW WEEKS PRIOR TO THE ACTUAL TRIAL DATE WE HAD
18 CONTACTED REPRESENTATIVES FROM HORIZONS, NUMBER ONE,
19 CONCERNING CERTAIN DOCUMENTS. WE WERE LOOKING FOR
20 EVALUATIONS AND INTAKE EVALUATIONS AND CERTAIN OTHER
21 DOCUMENTS THAT WERE DONE ON THESE FIVE PATIENTS.
22 WE WERE TOLD THAT ALL OF THE MEDICAL RECORDS THAT
23 HORIZONS HAD IN THEIR POSSESSION HAD BEEN TURNED OVER TO THE
24 HOSPITAL AND WERE MAINTAINED IN THE HOSPITAL RECORD. WE DID
25 SUBPOENA CERTAIN OTHER RECORDS FROM HORIZONS. WE WERE
254
1 INDICATED THOSE RECORDS WERE PRIVILEGED UNDER A PEER REVIEW
2 GROUP TYPE SITUATION AND WOULD NOT BE TURNED OVER TO US.
3 THESE WERE THE EXACT TYPE OF DOCUMENTS WE WERE LOOKING
4 FOR FROM HORIZONS DEALING WITH THEIR INTAKE MANAGEMENT THAT
5 WE WERE TOLD WE COULDN'T -- NUMBER ONE, WE COULD NOT HAVE;
6 AND WE WERE TOLD, NUMBER TWO, THEY WERE PART OF THE HOSPITAL
7 RECORDS.
8 OUR PROBLEM IS WE HAVE NEVER SEEN THESE DOCUMENTS.
9 WE'VE ASKED THEM AND WE REQUESTED THAT WE HAVE THEM. WE
10 HAVE NOT HAD A CHANCE TO REVIEW THEM. WE DON'T KNOW WHAT --
11 WHAT THEY CONTAIN. AND I HAVE A LITTLE BIT OF PROBLEM
12 STIPULATING OR HAVING THEM ADMITTED UNTIL WE HAVE A
13 FOUNDATION AS TO WHERE THESE DOCUMENTS CAME FROM, WHO
14 PRODUCED THE DOCUMENTS, WHAT DOCUMENTS THEY ARE, AND HAVE AN
15 OPPORTUNITY TO REVIEW THE DOCUMENTS BECAUSE APPARENTLY
16 THEY'RE ON EACH INDIVIDUAL -- EACH OF THE FIVE INDIVIDUAL
17 PATIENTS -- OR THE VICTIMS, I SHOULD SAY, IN THIS MATTER,
18 IDENTIFIED AS A RISK IDENTIFICATION REPORT.
19 BUT LIKE I SAID, WE'VE NEVER SEEN IT. WE'VE REQUESTED
20 ALL OF THESE DOCUMENT, BUT THEY'VE NEVER BEEN TURNED OVER.
21 WE JUST THINK IT'S -- AT THIS POINT IN TIME IT'S UNFAIR TO
22 US TO BE HAVING DOCUMENTS INTRODUCED INTO EVIDENCE THAT WE
23 COULD NOT GET AND DON'T HAVE -- HAVE NOT HAD A CHANCE TO
24 REVIEW.
25 THE COURT: OKAY. DOES ANYONE KNOW WHY THEY
255
1 WEREN'T PRODUCED TO THE STATE BEFOREHAND?
2 MR. STIRBA: WELL, I'M NOT SURE THAT -- ANYTHING
3 BUT THE FACT THAT WE HAD THEM, WE JUST DIDN'T -- WEREN'T
4 SURE WHEN MR. CHAMBERS WAS GOING TO TESTIFY. AND THEY --
5 THEY WERE NOT PRODUCED. I THOUGHT THAT THEY MAY HAVE HAD
6 THEM, BUT THEY WERE NOT PRODUCED, YOUR HONOR. WE GOT THEM
7 PURSUANT TO A SUBPOENA. AND SO THAT'S -- THAT'S THE ANSWER
8 TO THAT. I DON'T KNOW WHAT ELSE I CAN SAY.
9 THE COURT: WELL, IS THE -- DID YOU SAY THE
10 ATTORNEY FOR HORIZON IS PRESENT?
11 MR. STIRBA: MR. -- MR. MAJOR IS HERE, YOUR HONOR.
12 MR. MAJOR: MR. OWENS. I'M MAJOR.
13 MR. OWENS: MR. OWENS.
14 MR. STIRBA: I'M SORRY.
15 THE COURT: PARDON ME, WHAT WAS YOUR NAME?
16 MR. OWENS: STEVEN OWENS ON BEHALF OF HORIZON.
17 THE COURT: IF YOU'D PLEASE COME FORWARD.
18 CAN -- CAN YOU TELL ME -- ARE YOU FAMILIAR WITH THIS
19 EXHIBIT 23?
20 MR. OWENS: I AM, YOUR HONOR, AND LET ME JUST
21 EXPLAIN. HORIZON, WHO -- WHO ACTUALLY NO LONGER WORKS IN
22 UTAH.
23 THE COURT: OKAY.
24 MR. OWENS: BUT THERE IS A PRIVILEGE IN UTAH BASED
25 UPON PEER REVIEW QUALITY IMPROVEMENT. AND IT IS AT UTAH
256
1 CODE ANNOTATED SECTION 26-25-3 AND -- AND THE SECTIONS
2 AROUND THAT. THIS IS A SHARED PRIVILEGE WITH DR. WEITZEL,
3 THUS THE -- I -- I WROTE TO BOTH COUNSEL FOR DAVIS COUNTY
4 AND DR. WEITZEL'S COUNSEL INDICATING THAT HORIZON HAS A
5 NUMBER OF -- OF DOCUMENTS, INCLUDING SOME OF THESE PEER
6 REVIEW DOCUMENTS. YOUR HONOR, THESE ARE DOCUMENTS THAT
7 AFTER, FOR INSTANCE, THERE'S A DEATH, THERE IS A LITTLE KIND
8 OF A PROCESS, A QUALITY IMPROVEMENT PROCESS THAT IS GONE
9 THROUGH TO REVIEW THE PATIENT AND -- AND THOSE ARE
10 PRIVILEGED BY STATUTE TO PROTECT THE INTEGRITY OF THE
11 PROCESS. PEOPLE WON'T TALK OPENLY ABOUT WHAT OCCURRED --
12 THE COURT: IF THEY KNEW IT WAS GOING TO COME OUT?
13 MR. OWENS: -- IF -- IF THOSE THINGS WERE LATER
14 TO -- TO BE ADMITTED AT TRIAL.
15 IT IS, AGAIN, A SHARED PRIVILEGE, THUS HORIZON CAN'T
16 WAIVE IT ALONE, DR. WEITZEL CAN'T WAIVE IT ALONE, BUT IF
17 BOTH COUNSEL FOR -- FOR BOTH PARTIES WAIVE IT, IT -- IT CAN
18 BE WAIVED. THUS, THAT'S WHY THE SUBPOENA TO DR. WEITZEL WAS
19 ANSWERED AND THE SUBPOENA TO DAVIS COUNTY WAS NOT.
20 BUT WE DID INDICATE -- MY UNDERSTANDING IS THIS -- THIS
21 PREDATES ACTUALLY MY RETENTION AS COUNSEL A LITTLE BIT.
22 THEY WERE NOTIFIED THERE ARE DOCUMENTS, BUT THAT THEY --
23 THEY CANNOT BE TURNED OVER, CITING THE STATUTE.
24 NOW, DR. -- ON THIS LAST BREAK MR. STIRBA SAID WE ARE
25 WILLING TO WAIVE THE PRIVILEGE AS TO THESE FIVE PAGES OF
257
1 DOCUMENTS. I REVIEWED THOSE DOCUMENTS AND HAVE AGREED TO
2 WAIVE THE PRIVILEGE AS WELL.
3 THE COURT: OKAY. WHAT ARE THESE BEING OFFERED
4 FOR?
5 MR. STIRBA: YEAH. I'LL -- I'LL TELL YOU THEY --
6 AND I'LL JUST MAKE A CLARIFICATION. WE DON'T CONSIDER THESE
7 PEER REVIEW DOCUMENTS. THEY WERE PREPARED, MY
8 UNDERSTANDING, FOR PURPOSES OF RISK MANAGEMENT BY
9 MR. CHAMBERS. THEY WERE NOT PART OF THE PEER REVIEW
10 PROCESS, PER SE, IN TERMS OF THE REVIEW OF THIS SITUATION.
11 AND THEY'RE BEING OFFERED BECAUSE THEY HAVE --
12 THE COURT: SO ARE THESE HIS WRITING?
13 MR. STIRBA: YES.
14 THE COURT: OKAY.
15 MR. STIRBA: HE HAS RECITED FACTS WHICH HE WROTE ON
16 THE DOCUMENT, ON THE BACK. YOU'LL SEE THERE IS SORT OF A
17 RECORDATION OF EVENTS CONCERNING -- CONCERNING RATHER --
18 IT'S HARD TO READ, BUT IT'S BASICALLY CONCERNING THE
19 CIRCUMSTANCES OF THE PATIENT AT THE TOP. AND THEN IT HAS
20 THE ATTITUDE OF PATIENT FAMILY, AND I THINK IT HAS ADMITTING
21 PHYSICIAN. AND THAT INFORMATION IS WHAT IT'S BEING OFFERED
22 FOR. AND THEN IT HAS SOME GENERAL OTHER INFORMATION ABOUT
23 WHAT HAPPENED.
24 BUT IT IS A RECORDATION MADE AT THE TIME OF WHAT THE
25 UNDERSTANDING WAS OF MR. CHAMBERS, AT LEAST TO THE EXTENT HE
258
1 WAS GOING TO REPORT IT TO THE RISK MANAGEMENT PEOPLE AT
2 HORIZON MENTAL HEALTH.
3 THE COURT: OKAY. MR. MAJOR?
4 MR. MAJOR: A COUPLE OF THINGS, YOUR HONOR. FIRST
5 OFF, IF THIS IS ONLY FIVE PAGES OUT OF -- OF A MORE
6 VOLUMINOUS DOCUMENT, THEN WE WOULD OBJECT TO ITS
7 INTRODUCTION UNLESS WE HAVE AN OPPORTUNITY TO REVIEW THE
8 OTHER DOCUMENTS THAT ARE IN THAT FILE TO DETERMINE IF
9 THERE'S ANYTHING CONTRADICTORY, ANYTHING EXCULPATORY, I
10 GUESS YOU'D SAY, FROM THE STATE'S POINT OF VIEW. I MEAN, WE
11 DON'T KNOW WHAT'S IN THOSE DOCUMENTS BECAUSE THERE'S ONLY
12 THESE FIVE DOCUMENTS.
13 THE SECOND PROBLEM THAT WE HAVE, AND I JUST -- JUST
14 FIRST GLANCE AT THE FIRST PAGE THAT DEALS WITH ENNIS
15 ALLDREDGE, AND THE STATEMENT, I GUESS HE'S INDICATING TO GET
16 IN, WAS PATIENT'S DAUGHTER REPORTS THAT --
17 THE COURT: ARE YOU ON THE BACK PAGE?
18 MR. MAJOR: YEAH, ON THE FIRST PAGE ON THE BACK
19 PAGE, YOUR HONOR.
20 THE COURT: OKAY.
21 MR. MAJOR: ABOUT -- SAYS PATIENT'S DAUGHTER
22 REPORTS THAT HER FATHER PROBABLY HAD A STROKE.
23 THIS IS EXACTLY THE PROBLEM WE'RE HAVING. THE FAMILY
24 MEMBERS FOR ENNIS ALLDREDGE WHO COULD TESTIFY TO MAKING THAT
25 STATEMENT ARE IN THE COURTROOM. THEY'VE BEEN IN THE
259
1 COURTROOM. WE'VE ACKNOWLEDGED THAT THEY HAVE BEEN ABLE TO
2 BE IN THE COURTROOM BECAUSE WE DID NOT INTEND TO CALL THEM.
3 AT THIS POINT IN TIME IF THIS DOCUMENT IS INTRODUCED,
4 FOR EXAMPLE -- AND THIS IS ONLY LOOKING AT THE FIRST
5 DOCUMENT -- WE WOULD BE WANTING TO CALL FAMILY MEMBERS TO
6 SAY THAT'S EITHER WHAT WE SAID OR THAT'S NOT WHAT WE SAID OR
7 THAT'S NOT OUR UNDERSTANDING, YOU KNOW, OR WHAT THE
8 CIRCUMSTANCES OF THEM BEING CONTACTED. AT LEAST OUR PROFFER
9 WAS THAT NONE OF THE FAMILY MEMBERS KNEW THAT THE -- THAT
10 THEIR FATHER HAD EVEN BEEN ADMITTED TO THE DAVIS HOSPITAL.
11 THAT'S WHY WE DIDN'T CALL THEM.
12 SO THAT'S THE SECOND -- THAT'S THE SECOND PROBLEM WE
13 HAVE. WE'VE BEEN PUT IN A POSITION NOW THAT WE'VE
14 COMPROMISED OUR WITNESSES IF THIS DOCUMENT COMES IN.
15 THE COURT: WELL, IF -- AS TO THAT ISSUE, IF
16 THERE'S SOMETHING IN THIS DOCUMENT THAT THEY CAN REBUT,
17 THEY'RE NOT GOING TO BE BARRED FROM TESTIFYING ABOUT THAT.
18 MR. MAJOR: THAT'S TRUE, AND THAT -- THAT MAY BE
19 THE SITUATION.
20 THE SECOND -- THE THIRD ISSUE WE HAVE, YOUR HONOR, THIS
21 IS HEARSAY.
22 THE COURT: WELL, ISN'T THIS SOMEWHAT AKIN TO A
23 MEDICAL RECORD UNDER THE RULES OF HEARSAY?
24 MR. MAJOR: IT DEPENDS. WE WOULD -- WE'D OFFER THE
25 FACT THAT IT IS, IN FACT, HEARSAY. NUMBER TWO, WE'D OFFER
260
1 THE FACT THAT MR. CHAMBERS ISN'T THE KEEPER OF THE RECORDS.
2 HE'S NOT THE ONE WHO COULD TESTIFY --
3 THE COURT: BUT ISN'T HE THE AUTHOR OF THE
4 DOCUMENT?
5 MR. MAJOR: I DON'T KNOW. I -- THAT'S MY QUESTION.
6 WE DON'T KNOW THAT. I MEAN, THAT'S THE THING THAT WE'RE
7 ASKING.
8 THE COURT: WELL, WE NEVER GOT TO THAT. YOU MADE
9 THE OBJECTION BEFORE HE COULD SAY WHAT IT WAS OR WHAT --
10 MR. MAJOR: YEAH, I THINK HE'D HAVE TO BE ABLE TO
11 SAY --
12 THE COURT: IF IT'S -- IF IT'S HIS WRITING -- WELL,
13 HE DOESN'T HAVE TO SAY. AS LONG AS HE CAN SAY THAT THIS IS
14 HIS WRITING AND HE FILLED OUT THIS DOCUMENT, ISN'T THAT
15 ENOUGH?
16 MR. MAJOR: WELL, THOSE ARE OUR OBJECTIONS. OUR
17 BIGGEST OBJECTION IS, NUMBER ONE, YOUR HONOR, THAT THIS IS
18 ONLY FIVE DOCUMENTS OUT OF A -- OBVIOUSLY A MUCH LARGER
19 DOCUMENT, AND WE FEEL IT'S TOTALLY UNFAIR BOTH TO THE STATE
20 AND TO THE JURY TO BE PIECEMEALING THESE TYPE OF THINGS WHEN
21 THE STATE HAS NOT HAD AN OPPORTUNITY TO REVIEW WHAT REMAINS
22 IN THOSE DOCUMENTS. THERE COULD BE ANOTHER DOCUMENT ON THE
23 NEXT PAGE WHICH REFUTES WHAT'S IN THIS FIRST PAGE OR ANOTHER
24 FINDING OR A DIFFERENT TYPE OF THING THAT WE DON'T KNOW
25 ABOUT. AND I THINK THE COURT CANNOT ALLOW THIS DOCUMENT TO
261
1 COME IN UNTIL THE STATE'S HAD A CHANCE TO RECEIVE ALL OF
2 THOSE DOCUMENTS, HAD A CHANCE TO REVIEW THEM, ESPECIALLY
3 IF -- IF MR. -- IF DR. WEITZEL AND MR. OWENS, REPRESENTING
4 HORIZON, ARE STILL ASKING FOR THE PRIVILEGE ON THE REST OF
5 THOSE DOCUMENTS.
6 THE COURT: OKAY.
7 MR. MAJOR: I DON'T THINK THEY CAN COME IN HERE AND
8 JUST SAY GEE, WE'LL WAIVE THE PRIVILEGE TO THESE FIVE, BUT
9 WE'RE NOT GOING TO WAIVE TO THE OTHER -- THE REST OF THE
10 DOCUMENTS AND WE WON'T TURN THEM OVER TO THE STATE TO
11 REVIEW.
12 MR. STIRBA: AND I WANT TO MAKE IT CLEAR THAT
13 THAT'S -- THAT'S NOT WHAT WE'RE DOING. WE DON'T CONSIDER
14 THESE DOCUMENTS TO BE PART OF THE PEER REVIEW PROCESS; AND,
15 IN FACT, WE GOT THESE PURSUANT TO A SUBPOENA. AND, IN FACT,
16 HORIZON, I BELIEVE, HAS WITHHELD OTHER DOCUMENTS FROM
17 DR. WEITZEL WHICH IT CLAIMS A PEER REVIEW PRIVILEGE
18 CONCERNING.
19 SO THAT'S THE REASON WHY WE'RE OFFERING THESE. WE
20 DON'T CONSIDER THEM TO BE WITHIN THE SCOPE OF THE PRIVILEGE,
21 AND, IN FACT, THE SUPREME COURT HAS SPOKEN IN THE CASE OF --
22 IT'S VINCENT VERSUS I.H.C. HOSPITALS IN TERMS OF THE READING
23 26-25-3 NARROWLY. AND IT HAS TO BE A PRIVILEGE WITH RESPECT
24 TO ONLY DOCUMENTS PREPARED SPECIFICALLY TO BE SUBMITTED FOR
25 REVIEW PROCESS -- FOR REVIEW PURPOSES, AND NOT ANY AND ALL
262
1 DOCUMENTS WHICH COULD HAVE BEEN INCLUDED IN THAT REVIEW
2 PROCESS.
3 AND WE CONSIDER THESE PARTICULAR DOCUMENTS TO BE
4 DOCUMENTS OUTSIDE THE SCOPE OF ANY PEER REVIEW, AND THAT'S
5 WHY WE'RE OFFERING THEM. WE'RE NOT OFFERING THEM AS THESE
6 ARE PRIVILEGED AND THE OTHER ONES ARE PRIVILEGED, BUT WE
7 JUST WANT THESE PRIVILEGED DOCUMENTS IN.
8 THE COURT: OKAY. WELL, HE'S ASKING -- OR HIS
9 OBJECTION IS THAT IF THIS IS ONE PAGE OF, YOU KNOW, 100
10 PAGES, YOU KNOW, THEY HAVEN'T -- I UNDERSTAND HIS ARGUMENT
11 TO BE THEY SHOULD BE ENTITLED TO SEE THE ENTIRE DOCUMENT TO
12 SEE IF THERE'S ANYTHING THAT CONTRADICTS THIS DOCUMENT.
13 IS THAT YOUR ARGUMENT?
14 MR. MAJOR: THAT'S -- THAT'S BASICALLY IT, AND WE
15 UNDERSTAND THE PROBLEM WE'RE DEALING WITH HERE IS THAT
16 THERE'S A PRIVILEGE FOR THE DOCTOR, AS WELL AS THERE'S A
17 PRIVILEGE FOR HORIZON. SO EVEN THOUGH DR. -- DR. WEITZEL
18 MAY BE SAYING I DON'T HAVE ANY PROBLEMS IF YOU REVIEW THESE
19 DOCUMENTS, YOU KNOW --
20 THE COURT: YEAH.
21 MR. MAJOR: -- HORIZON STILL MAY SAYING WE WON'T.
22 SO THAT'S OUR -- OUR PROBLEM.
23 MR. OWENS: YOUR HONOR, CAN I TAKE 30 SECONDS ONCE
24 MORE? THERE IS A SECOND PRIVILEGE AT STAKE WHICH IS THE
25 ATTORNEY/CLIENT PRIVILEGE AND RIGHT -- IT'S VERY CLEAR IN
263
1 THE UPPER LEFT-HAND CORNER, A PRIVILEGE AND CONFIDENTIAL
2 COMMUNICATION FOR USE BY LEGAL COUNSEL, NOT PART OF THE
3 MEDICAL RECORD.
4 AND IF -- IF THE -- IF YOUR HONOR IS INCLINED TO SAY
5 HORIZON CANNOT WAIVE ITS PRIVILEGES AS TO THESE FIVE
6 DOCUMENTS ONLY AND MUST PRODUCE EVERYTHING ELSE, I -- I WILL
7 WITHDRAW OUR WAIVER OF THE PRIVILEGE BECAUSE I -- I -- I
8 ONLY WANT TO OFFER A VERY LIMITED WAIVER BECAUSE MR. STIRBA
9 HAS INDICATED -- HAS -- HAS SHOWN ME THESE DOCUMENTS AND
10 ASKED FOR A VERY SPECIFIC WAIVER AS TO THESE FIVE DOCUMENTS.
11 THE COURT: OKAY. THEN HOW DO YOU RESPOND,
12 MR. STIRBA, REGARDING IF THEY'RE ONLY GOING TO DO THESE FIVE
13 AND THEN THE STATE DOESN'T GET TO SEE ANY OF THE OTHERS TO
14 SEE IF IT CONTRADICTS THIS OR THE CONTENTS OF IT?
15 MR. STIRBA: WELL, IN FAIRNESS, THE ONLY WAY IS
16 WHAT I'VE SAID. THESE, I DON'T BELIEVE, ARE PEER REVIEW
17 DOCUMENTS. WE DON'T HAVE ACCESS TO THE ENTIRE PEER REVIEW
18 FILE. AND I THINK THE REASON WHY THEY WERE PRODUCED
19 PURSUANT TO A SUBPOENA IS BECAUSE THEY WEREN'T CONSIDERED
20 PEER REVIEW DOCUMENTS. THEY ARE RISK MANAGEMENT DOCUMENTS
21 THAT MR. CHAMBERS APPARENTLY PROVIDED TO HORIZON, AND
22 PRESUMEDLY TO THEIR LEGAL DEPARTMENT, AND THAT IS WHY WE
23 THINK THEY CAN BE INTRODUCED AND ARE NOT COVERED BY A PEER
24 REVIEW PRIVILEGE.
25 I WOULD SUBMIT IF THAT WAS OUR ARGUMENT THAT WE
264
1 BASICALLY WANT A WAIVER WITH RESPECT TO THESE AND NOT WITH
2 RESPECT TO OTHERS, I THINK THAT WOULD BE AN INCONGRUOUS
3 ARGUMENT, BUT WE'VE NEVER TAKEN THAT POSITION BECAUSE WE
4 DON'T BELIEVE THAT THE FOUNDATION WOULD BE THAT THEY WERE
5 PROVIDED OR CREATED AS PART OF ANY PEER REVIEW PROCESS, BUT
6 THEY ARE A RISK MANAGEMENT DOCUMENT.
7 MR. MAJOR: BUT, YOUR HONOR, I JUST -- I JUST WANT
8 TO MAKE ONE MORE THING. IT'S MY UNDERSTANDING THAT IT'S
9 PART OF THE PEER REVIEW DOCUMENT. EXACTLY WHAT THEY'RE
10 TALKING ABOUT IS THE CAUSE OF THESE DEATHS, YOU KNOW, THOSE
11 TYPE THINGS.
12 I JUST FEEL -- I UNDERSTAND WHERE MR. STIRBA'S COMING
13 FROM, AND I GUESS IF HE'S GOING TO REPRESENT TO THE COURT
14 THAT THESE ARE THE ONLY FIVE DOCUMENTS THAT HE'S SUBPOENAED
15 FROM HORIZON, THAT'S ONE THING. BUT AGAIN, JUST LIKE I SAY,
16 IF THIS IS JUST FIVE DOCUMENTS OF A WHOLE STACK OF OTHER
17 DOCUMENTS, THERE MAY BE VITAL INFORMATION IN THERE THAT THE
18 STATE MAY NEED TO REBUT WHAT'S IN THOSE DOCUMENTS.
19 AND I'M JUST SAYING, I DON'T THINK IT'S VERY FAIR
20 EITHER TO THE JURY OR THE COURT TO SIMPLY ADMIT THOSE FIVE
21 WITHOUT HAVING US GET ACCESS TO THE OTHER DOCUMENTS.
22 THE COURT: WELL, DO WE KNOW FROM THIS WITNESS IF
23 THERE'S ANY OTHER OF THIS TYPE OF DOCUMENT THAT HE AUTHORED
24 AFTER THE DEATHS?
25 THE WITNESS: PARDON ME?
265
1 MR. STIRBA: PERHAPS -- I DO -- I DO BELIEVE THERE
2 WAS A MEMORANDUM THAT IS A PEER REVIEW DOCUMENT THAT WAS
3 SUBMITTED TO THE HOSPITAL, AND IT'S DATED JANUARY 23RD, I
4 BELIEVE, OF 1996. THAT'S THE ONLY OTHER DOCUMENT THAT I'M
5 AWARE OF THAT MR. -- MR. CHAMBERS AUTHORED.
6 MR. OWENS: THERE ARE OTHER DOCUMENTS, YOUR HONOR.
7 THEY'RE -- WHEN THESE DEATHS OCCURRED, THERE WAS -- THERE
8 WERE INVESTIGATIONS. THE HOSPITAL CONDUCTED ONE, HORIZON
9 CONDUCTED ONE, AND IN FAIRNESS, THESE ARE FIVE OF A STACK OF
10 DOCUMENTS. I'M NOT SURE -- I CAN'T SAY IF ALL OF THEM WERE
11 TURNED OVER TO DR. WEITZEL. THOSE THAT WERE FELT TO -- THAT
12 HE SHARED THAT PRIVILEGE WERE TURNED OVER TO DR. WEITZEL.
13 MR. MAJOR: AND FOR THE RECORD, NONE OF THOSE
14 DOCUMENTS WERE TURNED OVER TO THE STATE.
15 MR. OWENS: THAT'S CORRECT.
16 MR. MAJOR: AND THAT'S -- I GUESS THAT GOES BACK TO
17 MY POINT. I MEAN, FOR EXAMPLE, IF PART OF THEIR
18 INVESTIGATION WERE TO COME BACK AND HAVE A DOCUMENT THAT
19 SAYS, WE REVIEWED ENNIS ALLDREDGE AND WENT BACK ON THE
20 INVESTIGATION, WE FOUND THERE WAS NO STROKE ONE WEEK PRIOR
21 TO HIS ADMISSION, I MEAN, THAT'S THE TYPE OF DOCUMENT THE
22 STATE WOULD LIKE TO KNOW WHETHER OR NOT IS IN THERE.
23 THE COURT: OKAY. ANYTHING FURTHER?
24 MR. STIRBA: I HAVE NOTHING, YOUR HONOR.
25 THE COURT: OKAY. I'M GOING TO TAKE A SHORT BREAK
266
1 TO REVIEW THIS.
2 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
3 PROCEEDINGS RESUME OUT OF THE HEARING OF THE JURY, AS
4 FOLLOWS:)
5 THE COURT: OKAY, WE'RE BACK ON THE RECORD. THE
6 JURY IS NOT PRESENT.
7 AS TO DEFENDANT'S EXHIBIT 23, RULE 102 OF THE RULES OF
8 EVIDENCE STATES THAT THESE RULES SHOULD BE CONSTRUED TO
9 SECURE FAIRNESS IN ADMINISTRATION, ELIMINATION OF
10 UNJUSTIFIABLE EXPENSE AND DELAY, AND PROMOTION OF GROWTH AND
11 THE DEVELOPMENT OF THE LAW OF EVIDENCE TO THE END THAT THE
12 TRUTH MAY BE ASCERTAINED AND PROCEEDINGS JUSTLY DETERMINED.
13 I HAVE A CONCERN THAT FAIRNESS IN ADMINISTRATION AND
14 PROCEEDINGS JUSTLY DETERMINED THAT IF WE PUT CERTAIN OF
15 THESE DOCUMENTS IN AND WE DON'T PUT ALL OF THE DOCUMENTS IN,
16 AND THAT THEY CAN BE CONTROLLED EITHER BY HORIZON OR BY THE
17 DEFENDANT ON WAIVERS, I'M NOT GOING TO ALLOW THE EXHIBITS
18 IN.
19 I'M GOING TO OVER -- OR I'M GOING TO SUSTAIN THE
20 OBJECTION TO DEFENSE EXHIBIT 23.
21 SO LET'S HAVE THE JURY COME IN.
22 MR. STIRBA: THANK YOU, YOUR HONOR.
23 (WHEREUPON, AT THIS TIME THE JURY ENTERS THE COURTROOM,
24 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
25 THE COURT: THE RECORD SHOULD REFLECT THAT COUNSEL
267
1 AND THE DEFENDANT AND THE JURY ARE PRESENT.
2 LADIES AND GENTLEMEN, PROBABLY WHAT WE JUST DID WAS --
3 MADE IT SO INSTEAD OF YOU HAVING YOUR TWO BREAKS IN THE
4 MORNING AN HOUR APART, YOU KNOW, YOU KIND OF HAD THEM
5 CLOSER, MAYBE AN HOUR AND THEN A HALF HOUR APART. SO WE'LL
6 TRY TO GO MORE TO THE LUNCH BREAK NOW, BUT SOME OF THESE
7 MATTERS HAVE TO BE RESOLVED AND WE TRY TO DO THEM AS QUICKLY
8 AS POSSIBLE AND SO WE APPRECIATE YOUR PATIENCE.
9 MR. STIRBA?
10 MR. STIRBA: THANK YOU, YOUR HONOR.
11 Q. (BY MR. STIRBA) MR. -- MR. CHAMBERS, YOU PREVIOUSLY
12 WERE TESTIFYING ABOUT THE POLICIES AND YOU -- YOU TESTIFIED
13 THAT -- THAT IN MANY INSTANCES THERE ARE GUIDELINES THAT ARE
14 NOT HARD AND FAST GIVEN THE DIFFICULTIES OF PREDICTING
15 CERTAIN MEDICAL EVENTS; IS THAT RIGHT?
16 A. YES.
17 Q. AND ONE OF THOSE POLICIES THAT YOU READ AND TERMED AN
18 EXCLUSIONARY CRITERIA EARLIER SAID THAT PATIENTS WHO HAD A
19 TERMINAL DISEASE WITHOUT A TREATABLE PSYCHIATRIC ILLNESS,
20 AND THEN IT WENT ON TO SAY, ESSENTIALLY, WILL BE REFERRED
21 FOR HOSPICE CARE. AND I BELIEVE YOU EMPHASIZED THE
22 "WITHOUT" EARLIER ON DIRECT; IS THAT RIGHT?
23 A. YES.
24 Q. AND IT'S TRUE, IS IT NOT, THE REASON WHY YOU EMPHASIZED
25 THAT IS BECAUSE THERE WERE CIRCUMSTANCES WHERE IF A PATIENT
268
1 HAD A TERMINAL DISEASE AND YET TREATMENT COULD STILL BE
2 PROVIDED THAT MIGHT BE EFFECTIVE OR HELPFUL, IT WAS
3 APPROPRIATE TO TREAT THEM ON THE UNIT; ISN'T THAT TRUE?
4 A. YES.
5 MR. STIRBA: THAT'S ALL I HAVE, YOUR HONOR. THANK
6 YOU.
7 THE COURT: ANY REDIRECT?
8 MR. MAJOR: YES, YOUR HONOR.
9 REDIRECT EXAMINATION
10 BY MR. MAJOR:
11 Q. MR. CHAMBERS, IT WAS INDICATED IF YOU HAD A PATIENT THAT
12 HAD A TERMINAL ILLNESS, THAT DIDN'T NECESSARILY DISQUALIFY
13 THEM FROM BEING ON THE UNIT.
14 A. THAT'S CORRECT.
15 Q. HOWEVER, IF YOU DID HAVE A PATIENT WITH A TERMINAL
16 ILLNESS, WOULD THAT BE REFLECTED IN YOUR NOTES?
17 A. IT -- IT -- IT CERTAINLY WOULD BE REFLECTED IN THE
18 HISTORY AND PHYSICAL. IT PROBABLY SHOULD BE REFLECTED IN MY
19 NOTES.
20 Q. IF IT WAS A SIGNIFICANT -- SIGNIFICANT EVENT?
21 A. I WOULD HOPE SO.
22 Q. WOULD THAT BE SOMETHING THAT MIGHT BE PASSED ON TO THE
23 DOCTOR?
24 A. ABSOLUTELY.
25 Q. THANK YOU. NOW, AS INDICATED ALSO ON CROSS-EXAMINATION,
269
1 THIS WAS A TEAM EFFORT. DID YOU CONSIDER YOURSELF TO BE
2 PART OF THE TEAM?
3 A. YES.
4 Q. WHAT DO YOU DEFINE -- HOW DO YOU DEFINE A TEAM?
5 THE COURT: IN THIS CONTEXT?
6 Q. (BY MR. MAJOR) IN THIS CONTEXT, OR HIS UNDERSTANDING.
7 WHEN THEY SAY YOU'RE PART OF TEAM, WHAT'S YOUR UNDERSTANDING
8 OF WHAT THAT MEANT?
9 A. WE WERE ALL WORKING TOGETHER FOR A COMMON GOAL, TO -- TO
10 TREAT AND SERVE THESE PATIENTS.
11 Q. OKAY. AS YOUR POSITION AS DIRECTOR, DID YOU ALSO HAVE
12 AN OPPORTUNITY TO RECEIVE COMPLAINTS FROM TEAM MEMBERS?
13 A. YES.
14 Q. DID YOU HAVE AN OPPORTUNITY TO RECEIVE COMPLAINTS FROM
15 NURSES?
16 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
17 IRRELEVANT.
18 MR. MAJOR: MAY WE APPROACH, YOUR HONOR?
19 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION AT THE
20 BENCH.)
21 MR. OWENS: YOUR HONOR, WE -- WE CAN HEAR SOME OF
22 THIS CONVERSATION. I THOUGHT YOU'D LIKE TO KNOW.
23 THE COURT: OKAY. I'M GOING TO SUSTAIN THE
24 OBJECTION.
25 MR. MAJOR: THANK YOU. WE HAVE NO FURTHER
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1 QUESTIONS THEN, YOUR HONOR.
2 MR. STIRBA: JUST BRIEFLY, YOUR HONOR.
3 THE COURT: OKAY.
4 RECROSS-EXAMINATION
5 BY MR. STIRBA:
6 Q. IT'S TRUE, IS IT NOT, THAT WHEN YOU WOULD MAKE AN
7 ASSESSMENT, YOU TRIED TO MAKE AN ASSESSMENT BASED ON THE
8 MEDICAL CONDITIONS AND CIRCUMSTANCES OF WHICH YOU WERE AWARE
9 AT THE TIME, TRUE?
10 A. TRUE.
11 Q. AND THEN THERE WERE SOME TIMES WHEN THINGS COULD CHANGE
12 UPON ADMISSION; ISN'T THAT CORRECT?
13 A. TRUE.
14 Q. THANK YOU.
15 MR. STIRBA: NOTHING FURTHER.
16 MR. MAJOR: NOTHING FURTHER OF THIS WITNESS, YOUR
17 HONOR.
18 THE COURT: DOES ANYBODY ANTICIPATE THIS WITNESS --
19 MAY THIS WITNESS NOW BE EXCUSED?
20 MR. MAJOR: WE WOULD HAVE NO PROBLEM WITH HIM BEING
21 EXCUSED.
22 MR. STIRBA: YES, YOUR HONOR.
23 THE COURT: OKAY. THANK YOU.
24 THE WITNESS: THANK YOU.
25 THE COURT: OKAY. WOULD YOU LIKE TO CALL YOUR NEXT
271
1 WITNESS?
2 MR. WILSON: YES, YOUR HONOR. WE WOULD CALL
3 DR. WELBY JENSEN TO THE STAND AT THIS TIME.
4 THE WITNESS: WHAT DO YOU WANT ME TO DO WITH THIS?
5 THE COURT: JUST GIVE IT TO ME, PLEASE.
6 (WITNESS TENDERS DOCUMENT TO THE COURT.)
7 THE COURT: WAS THIS NEXT WITNESS NOT IN THE FLIGHT
8 PLAN?
9 MR. WILSON: I GUESS HIS LANDING PATTERN WAS
10 DELAYED, YOUR HONOR. HE HAS BEEN WAITING IN THE OFFICE. I
11 TOLD HIM AN HOUR AGO IT'D PROBABLY BE HALF AN HOUR, SO I
12 ASSUME HE'LL BE HERE SHORTLY. I APOLOGIZE TO THE COURT.
13 WE'LL TRY TO KEEP THEM OUTSIDE IN THE COURT CORRIDOR IN THE
14 FUTURE.
15 THE COURT: OKAY. IF YOU'D LIKE TO COME FORWARD
16 AND BE SWORN, PLEASE.
17 WELBY NEAL JENSEN,
18 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
19 AS FOLLOWS:
20 DIRECT EXAMINATION
21 BY MR. WILSON:
22 Q. DR. JENSEN, WOULD YOU STATE YOUR FULL NAME FOR THE
23 RECORD, PLEASE?
24 A. WELBY NEAL JENSEN, M.D.
25 Q. AND WHERE DO YOU CURRENTLY RESIDE, SIR?
272
1 A. KODIAK, ALASKA.
2 Q. OKAY. I NOTE THAT THERE'S SOME WATER AT THE BENCH THERE
3 IF THAT WILL HELP YOUR -- YOUR VOICE. YOU'VE BEEN SUFFERING
4 FROM A RESPIRATORY MATTER, I UNDERSTAND?
5 A. RIGHT.
6 Q. YOU'RE IN KODIAK, ALASKA? HOW LONG HAVE YOU BEEN UP IN
7 ALAS