3744
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Trial Transcript Vols. 18 - 21
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3
*****
4 ______________________________
)
5 STATE OF UTAH, )
)
6 PLAINTIFF, )
)
7 ) REPORTER'S TRANSCRIPT
VS. )
8 ) CASE NO. 991700983
ROBERT ALLEN WEITZEL, )
9 )
DEFENDANT. )
10 ______________________________)
11 *****
12 TRIAL VOLUME 18 OF 21
13 JULY 5, 2000
14 HONORABLE THOMAS L. KAY
15
*****
16
17 APPEARANCES:
18 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
19 MS. CHARLENE BARLOW
20
FOR THE DEFENDANT: MR. PETER STIRBA
21 MR. JOHN WARREN MAY
22
23
24
25
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1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 THE COURT: PLEASE BE SEATED. THE RECORD WILL
3 REFLECT THAT THE ATTORNEYS ARE PRESENT. THE DEFENDANT IS
4 PRESENT AND THE JURY IS PRESENT. LADIES AND GENTLEMEN, WE
5 HOPE YOU HAD A GOOD WEEKEND AND THAT YOU DIDN'T STAY UP TOO
6 LATE LAST NIGHT. MR. STIRBA, WOULD YOU LIKE TO CALL THE
7 NEXT WITNESS?
8 MR. STIRBA: WE WOULD CALL DR. WEITZEL.
9 ROBERT WEITZEL,
10 CALLED BY THE DEFENDANT, HAVING BEEN DULY
11 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
12 DIRECT EXAMINATION
13 BY MR. STIRBA:
14 Q. GOOD MORNING, ROBERT.
15 A. GOOD MORNING.
16 Q. HOW DO YOU FEEL?
17 A. VERY NERVOUS.
18 Q. AND YOU UNDERSTAND YOU'VE BEEN ACCUSED OF SOME VERY
19 SERIOUS ALLEGATIONS?
20 A. YES, I DO.
21 Q. AND ARE YOU READY TO TELL THE JURY ABOUT THE FACTS AND
22 CIRCUMSTANCES AND WHAT HAPPENED?
23 A. YES.
24 Q. DID YOU, ROBERT, INTENTIONALLY OR KNOWINGLY MEDICATE ANY
25 OF THE FIVE PATIENTS INVOLVED IN THIS CASE WITH THE INTENT
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1 TO CAUSE THEIR DEATH?
2 A. NO.
3 Q. DID YOU NEGLIGENTLY OR INTENTIONALLY OVERMEDICATE ANY OF
4 THE FIVE PATIENTS INVOLVED IN THIS CASE?
5 A. NO, I DIDN'T.
6 Q. DID YOU INTENTIONALLY OR KNOWINGLY PROVIDE MORPHINE TO
7 ANY OF THE FIVE PATIENTS IN THIS CASE INTENDING TO CAUSE
8 THEIR DEATH?
9 A. NO.
10 Q. WHERE DO YOU PRESENTLY RESIDE?
11 A. IN SALT LAKE CITY.
12 Q. AND HOW OLD ARE YOU?
13 A. FORTY-FOUR.
14 Q. IN DECEMBER OF 1995 AND JANUARY OF 1996 WERE YOU
15 EMPLOYED AT THE DAVIS HOSPITAL?
16 A. YES.
17 Q. WHEN WERE YOU HIRED?
18 A. IN NOVEMBER OF '94.
19 Q. AND WHAT WERE YOU HIRED TO DO?
20 A. INITIALLY -- WELL, I WAS A PSYCHIATRIST THERE AND
21 INITIALLY I WAS TO SPELL DR. JENSEN, BE A STAFF PSYCHIATRIST
22 ON THE GEROPSYCH UNIT.
23 Q. AND DID THERE COME A TIME WHEN THAT POSITION CHANGED IN
24 SOME RESPECTS AFTER NOVEMBER OF '94?
25 A. YES.
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1 Q. AND JUST BRIEFLY TELL US HOW YOUR POSITION CHANGED.
2 A. IN MARCH OF '95 I WAS FORMALLY HIRED AS THE ASSOCIATE
3 MEDICAL DIRECTOR OF THE UNIT.
4 Q. AND DID THAT INVOLVE A CHANGE IN YOUR DUTIES?
5 A. NOT SIGNIFICANTLY. I DID TAKE ON A LOT MORE
6 RESPONSIBILITY AND DR. JENSEN SORT OF EASED OUT AT THAT
7 TIME.
8 Q. WHERE DID YOU GO TO MEDICAL SCHOOL?
9 A. SOUTHWESTERN MEDICAL SCHOOL IN DALLAS, TEXAS.
10 Q. AND WHEN DID YOU GRADUATE?
11 A. IN MAY OF 1986.
12 Q. DESCRIBE FOR US, PLEASE, THE PURPOSE OF THE GEROPSYCH
13 UNIT?
14 A. WELL, IT WAS A GENERAL PSYCHIATRIC UNIT FOR GERIATRIC
15 FOLKS, FOR OLDER FOLKS.
16 Q. AND DESCRIBE THE KINDS OF PATIENTS THAT WERE TREATED
17 THERE.
18 A. BASICALLY THREE KINDS. ALL OF THE FOLKS WERE ELDERLY,
19 BUT THE FIRST CATEGORY WOULD BE GENERAL PSYCHIATRIC PATIENTS
20 WHO HAPPENED TO BE ELDERLY. SECOND, WE HAD FOLKS WITH
21 MEDICAL PROBLEMS THAT CAUSED PSYCHIATRIC SYMPTOMS. THAT
22 COULD INCLUDE FOLKS WHO HAD BEEN -- THEIR MEDICATIONS WERE
23 CAUSING PROBLEMS AND FINALLY PEOPLE WITH DIFFERENT FORMS OF
24 DEMENTIA.
25 Q. AND WAS PSYCHIATRIC INTERVENTION NECESSARY?
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1 A. IN ALL OF THESE PEOPLE IT WAS CLEARLY NECESSARY.
2 Q. AND TELL US JUST GENERALLY WHAT KIND OF PSYCHIATRIC
3 INTERVENTION WAS REQUIRED.
4 A. WELL, IT VARIED FROM PERSON TO PERSON, BUT ALL OF THESE
5 PEOPLE NEEDED ACUTE CARE AND MEDICATIONS. THEY ADDITIONALLY
6 IN VARYING DEGREES HAD FORMS OF PSYCHOTHERAPY.
7 Q. AND WHO PROVIDED THE THERAPY ON THE UNIT?
8 A. SOCIAL WORKERS, SOMETIMES THE NURSES, RARELY MYSELF. I
9 WAS THE MEDICATION MANAGEMENT PERSON.
10 Q. AND WOULD YOU EXPLAIN WHEN YOU SAY MEDICATION MANAGEMENT
11 PRECISELY WHAT YOUR ROLE WAS?
12 A. A LOT OF PEOPLE THINK OF A PSYCHIATRIST, YOU KNOW, A LOT
13 OF TALK THERAPY, LAYING ON THE COUCH. BUT THE OTHER END OF
14 THE SPECTRUM IS BIOLOGICAL PSYCHIATRY AND THAT'S MORE WHAT I
15 WAS TO DO. WORKING WITH THEIR MEDICAL CONDITION AND THE
16 MEDICATIONS WE HAD AVAILABLE TO TRY AND GET THEIR SYMPTOMS
17 UNDER CONTROL.
18 Q. DID YOU HAVE A ROLE CONCERNING ADMISSIONS TO THE UNIT?
19 A. YES, I DID.
20 Q. AND WOULD YOU TELL US, PLEASE, WHAT YOUR ROLE WAS?
21 A. AFTER AN INITIAL ASSESSMENT BY ONE OF THE SOCIAL WORKERS
22 OR PERHAPS A NURSE, I WAS CALLED, AND AS THE ATTENDING
23 DOCTOR I HAD TO EITHER CALL IN OR WRITE ADMITTING. SO
24 BASICALLY I HAD TO OKAY THE ADMISSION.
25 Q. WHAT DID YOU UNDERSTAND THE ADMISSION CRITERIA TO HAVE
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1 BEEN DURING THE TIME FRAME OF DECEMBER OF '95 AND JANUARY OF
2 '96?
3 A. BASICALLY THESE FOLKS NEEDED TO BE ACUTELY
4 PSYCHIATRICALLY ILL. THEY COULDN'T JUST HAVE A CHRONIC
5 CONDITION WITHOUT SOME ACUTE CHANGES. THEY COULDN'T HAVE
6 ANY LIFE THREATENING ILLNESSES AT THE TIME OF ADMISSION. I
7 MEAN TO SAY, NOT ANY ACUTE STATE WHICH WAS LIFE THREATENING.
8 THEY MAY HAVE HAD SOME SERIOUS ILLNESSES WHICH AT ANY TIME
9 COULD BECOME ACUTE. THEY HAD TO, OF COURSE, BE ELDERLY.
10 AND THERE WERE SOME EXCLUSIONS CRITERIA, I THINK.
11 Q. WHAT DO YOU MEAN WHEN YOU SAY ACUTE?
12 A. WELL, USING DEMENTIA AS AN EXAMPLE, THIS IS A CHRONIC
13 PROCESS. IT'S PROBABLY ONGOING OVER YEARS. AND WE WERE NOT
14 TO BE BRINGING IN FOLKS WHO WERE SIMPLY CHRONICALLY
15 DEMENTED. IT WAS MORE THAT THERE HAD BEEN AN ACUTE CHANGE
16 IN THEIR STATUS. ACUTE MEANING OVER HOURS OR WEEKS AT THE
17 MOST.
18 Q. DID A MEDICAL CONDITION OF A PATIENT PLAY A ROLE OR
19 AFFECT THE ADMISSION CRITERIA?
20 A. WELL, THE MEDICAL CONDITION MIGHT CAUSE THE PSYCHIATRIC
21 ILLNESS. IF IT WAS AN ACUTE PROBLEM THAT WAS LIFE
22 THREATENING, THAT AFFECTED THE CRITERIA. WE COULDN'T TAKE
23 THOSE FOLKS. BUT I THINK WE HAD PLENTY OF PEOPLE WHO WERE
24 FAIRLY SICK, GIVEN THE AGE GROUP AND WE WERE -- I WAS
25 WILLING TO TRY AND HELP THEM.
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1 Q. DID YOU HAVE A RESPONSIBILITY ON ADMISSION TO CONDUCT AN
2 EXAMINATION OR PREPARE AN EVALUATION?
3 A. BOTH.
4 Q. AND TELL US THE DIFFERENCE BETWEEN AN EXAMINATION AND
5 THE EVALUATION.
6 A. WELL, THE EXAM THAT'S DONE FOR A PSYCHIATRIC ADMISSION
7 IS CALLED A MENTAL STATUS EXAMINATION AND IT CAN REALLY VARY
8 AS TO THE LENGTH. BUT THAT'S GOING AND TALKING TO THE
9 PATIENT AND FINDING OUT HOW THEIR THINKING PROCESS IS, IS IT
10 WORKING AND HOW THEY ARE FEELING. THE OTHER PART IS MORE OF
11 THE PSYCHIATRIC EVALUATION, IS A REPORT THAT IS PREPARED AND
12 IT INCLUDES ALL THE HISTORY I'VE BEEN ABLE TO GATHER AND THE
13 EXAMINATION.
14 Q. TELL US WHAT THE MENTAL STATUS EXAMINATION ENTAILED.
15 A. THAT -- WELL, YOU GO AND TALK WITH THE PATIENT TO THE
16 BEST OF YOUR ABILITY. IT WOULD INCLUDE THINGS LIKE THEIR
17 AFFECT OR THEIR EMOTIONAL STATE, THEIR MOOD, THEIR SENSORIUM
18 WHICH INCLUDES THEIR LEVEL OF CONSCIOUSNESS, THEIR THOUGHT
19 PROCESS, INSIGHT AND JUDGMENT. IT REALLY VARIED AS TO HOW
20 MUCH INFORMATION I COULD GATHER THERE. FOLKS WE'VE BEEN
21 TALKING ABOUT WERE ALL PRETTY DEMENTED. IT MIGHT BE A
22 FAIRLY PERFUNCTORY EXAMINATION ONCE I DISCOVERED THEY DIDN'T
23 HAVE INSIGHT OR JUDGMENT OR ABILITY TO ANSWER A LOT OF MY
24 QUESTIONS.
25 Q. HOW WOULD YOU GO ABOUT PREPARING THE WRITTEN REPORT OR
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1 THE EVALUATION?
2 A. WELL, ALONG WITH THE MENTAL STATUS EXAM AND ALL OF THE
3 DIFFERENT HISTORY THAT COULD BE GATHERED, I'D LOOK AT WHAT
4 THE NURSES HAD BEEN ABLE TO GATHER IN THEIR NURSING
5 ASSESSMENT. I'D TALK TO OTHER PROVIDERS. LOOK AT OLD
6 CHARTS. TALK WITH FAMILY. WHATEVER I COULD GATHER. AND
7 THEN I'D NEED TO DICTATE THIS WRITTEN REPORT, THE
8 PSYCHIATRIC EVALUATION.
9 Q. WAS THERE A REQUIREMENT IN TERMS OF WHEN YOU HAD TO
10 DICTATE THE EVALUATION IN RELATIONSHIP TO THE ADMISSION OF
11 THE PATIENT?
12 A. YES. IT WAS SUPPOSED TO BE DONE WITHIN 24 HOURS.
13 HOSPITAL BY-LAWS ASK IT BE DONE WITHIN 24 HOURS.
14 Q. AND YOU RECALL THE DICTATION FOR PATIENT ELLEN ANDERSON
15 WAS DONE ON THE 30TH?
16 A. YES.
17 Q. AND DO YOU KNOW THE DAY THAT YOU ACTUALLY SAW HER?
18 A. I SAW HER ON THE EVENING OF THE 29TH, LATE AFTERNOON.
19 Q. AND WHAT DID YOU DO ON THAT DAY?
20 A. WELL, I CAME IN. I HAD TO SEE HER QUICKLY BECAUSE I HAD
21 A LOT TO DO. I DID THE MENTAL STATUS EXAM. IT WAS PRETTY
22 PERFUNCTORY BECAUSE OF HER -- SHE WAS VERY DEMENTED. SHE
23 WAS SCREAMING. SHE COULDN'T REALLY ASSIST MUCH IN THE EXAM.
24 I DID THAT. AND OTHER THAN THAT I MUST HAVE TALKED WITH THE
25 NURSE AND STAFF TO GET MORE INFORMATION.
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1 Q. WHY WAS THE DICTATION DONE ON THE FOLLOWING DAY OF THE
2 ACTUAL REPORT?
3 A. I JUST DIDN'T GET TO IT. MANY TIMES I KNEW I HAD TO DO
4 IT WITHIN 24 HOURS, BUT I DIDN'T HAVE TIME TO GET THAT ONE
5 DONE.
6 Q. NOW, ON THE 29TH YOU REMEMBER IN YOUR PROGRESS NOTE YOU
7 STATED EVAL DONE. DICTATED. DO YOU REMEMBER THAT?
8 A. RIGHT.
9 Q. WHY DID YOU WRITE THAT ON THE 29TH?
10 A. WELL, THAT WAS SORT OF JUST ON MY FIRST NOTE I HAD TO DO
11 A PSYCHIATRIC EVALUATION WHICH IS GENERALLY A TWO- OR
12 THREE-PAGE REPORT AND SO IT'S BASICALLY MY FIRST NOTE. THE
13 WRITTEN NOTE IS PRETTY PERFUNCTORY AND IT WAS MY HABIT TO
14 WRITE PSYCHIATRIC EVAL DONE AND DICTATED ONCE I HAD ACTUALLY
15 SEEN THE PATIENT 'CAUSE I KNEW I WAS GOING TO DICTATE THE
16 THING. LOOKING BACK NOW, I WISH IT HADN'T BEEN MY HABIT
17 'CAUSE IT WASN'T ACTUALLY DICTATED AT THAT VERY MOMENT. BUT
18 I HAD TO GET IT DONE WITHIN 24 HOURS.
19 Q. DO YOU KNOW WHAT THE FORM DISCHARGE SUMMARY IS?
20 A. SURE.
21 Q. AND TELL US, PLEASE, WHAT A DISCHARGE SUMMARY IS.
22 A. THAT IS A DOCUMENT PREPARED AFTER THE PATIENT'S
23 DISCHARGED AND IT PRETTY MUCH GOES THROUGH THE ENTIRE
24 HOSPITALIZATION AND SUMMARIZED WHAT OCCURRED THERE.
25 Q. AND WHAT'S THE PURPOSE FOR A DISCHARGE SUMMARY?
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1 A. WELL, IT'S REALLY HELPFUL IF THE PATIENT IS SUBSEQUENTLY
2 HOSPITALIZED. WHEN I GOT PATIENTS ADMITTED TO ME, I WOULD
3 ALWAYS TRY AND GET THE OLD DISCHARGE SUMMARIES 'CAUSE IT HAS
4 THE HOSPITAL COURSE, WHAT MEDICATIONS WERE TRIED AND WHAT
5 THEY WERE DISCHARGED ON, WHAT SORT OF PROCEDURES, IF ANY.
6 IT'S A SHORTHAND WAY OF ENCAPSULATING A WHOLE
7 HOSPITALIZATION.
8 Q. AS WITH THE PSYCHIATRIC EVALUATION, THE WRITTEN REPORT,
9 WAS THERE A REQUIREMENT IN TERMS OF THE TIMING OF WHEN A
10 DISCHARGE SUMMARY WOULD BE DICTATED?
11 A. I BELIEVE THAT WAS 72 HOURS. I'M NOT REALLY SURE OF THE
12 BY-LAWS AT THAT HOSPITAL.
13 Q. AND 72 HOURS FROM WHEN?
14 A. FROM DISCHARGE.
15 Q. NOW, I WANT TO DIRECT YOUR ATTENTION -- YOU HAVE SOME
16 BINDERS UP THERE, ROBERT, AND I WANT YOU TO PULL OUT PATIENT
17 JUDITH LARSEN'S BINDER, PLEASE. AND I WANT TO DIRECT YOUR
18 ATTENTION -- THERE IS A PROGRESS NOTE SECTION THERE AND IT
19 WOULD BE THE NUMBER 470 OR THERE'S A REFERENCE FOR A
20 PROGRESS NOTE ON DECEMBER 15.
21 A. OKAY.
22 Q. DO YOU SEE THAT?
23 A. I'VE GOT IT RIGHT HERE.
24 Q. WHY DON'T YOU READ THAT TO US, PLEASE?
25 A. IT'S MY NOTE THAT SAYS, RESPONDED TO ME THIS MORNING
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1 FAIRLY APPROPRIATELY. BLOOD PRESSURE A LITTLE LABILE,
2 DYSPHORIC, OFTEN LETHARGIC. MILDLY FEBRILE YESTERDAY. NOW
3 OKAY. ASSESSMENT. MAJOR DEPRESSIVE DISORDER WITH PSYCHOTIC
4 FEATURES IMPROVED. BETTER INTAKE. PLAN, CONTINUE THERAPY.
5 PROBABLY WON'T NEED HOSPICE, AND SIGNED BY ME.
6 Q. AND YOU PUT HOSPICE IN QUOTES; IS THAT RIGHT?
7 A. UH-HUH.
8 Q. TELL US, PLEASE, WHAT DID YOU MEAN BY YOUR USE OF THE
9 WORD HOSPICE?
10 A. WELL, HOSPICE IS END-OF-LIFE CARE. EARLIER IN THE
11 HOSPITALIZATION MISS LARSEN LOOKED VERY ILL AND I THOUGHT
12 SHE MIGHT BE DYING, BUT SHE IMPROVED QUITE A BIT. AND I'M
13 SAYING, I DON'T THINK SHE'S GOING TO NEED THAT. WE CAN GO
14 BACK TO TRYING OUR ORIGINAL PLAN WHICH WAS TO REVERSE HER
15 PSYCHIATRIC SYMPTOMS AND GET HER BACK PLACED IN HER NURSING
16 HOME AGAIN.
17 Q. AT THE TIME THAT YOU WROTE THAT NOTE, WERE YOU THINKING
18 ABOUT HOSPICE CARE BEING SOMETHING IN HER FUTURE?
19 A. I WAS THINKING -- WELL, I HAD BEEN THINKING IT. BUT NOW
20 I'M THINKING PROBABLY NOT, AT LEAST ANY TIME SOON.
21 Q. HAD YOU HAD PREVIOUS EXPERIENCE IN TERMS OF HOSPICE
22 CARE?
23 A. YES.
24 Q. AND WOULD YOU TELL US GENERALLY WHAT THAT WAS?
25 A. IN RESIDENCY I HAD WORKED AS A VOLUNTEER WITH PEOPLE
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1 WITH AIDS; GOING OUT ACTUALLY TO THEIR HOUSES WHERE HOSPICE
2 CARE WAS PROVIDED. I ALSO HAD IN CALIFORNIA WORKED IN THE
3 HOSPITAL THERE WITH THAT SORT OF CARE, END-OF-LIFE CARE.
4 I'VE NEVER WORKED IN A HOSPICE, BUT I'VE BEEN TRAINED IN
5 THAT AND IT'S PART OF MEDICAL TRAINING AND MEDICAL SCHOOL.
6 Q. NOW, YOU RECALL THAT BEFORE PATIENT JUDITH LARSEN DIED,
7 SHE WAS NOT MOVED OFF OF THE UNIT?
8 A. CORRECT.
9 Q. AND SHE WAS NOT RELOCATED. DO YOU REMEMBER THAT?
10 A. RIGHT.
11 Q. WOULD YOU TELL US, PLEASE, THE CIRCUMSTANCES SUCH THAT
12 SHE WAS NOT MOVED?
13 A. WELL, SHE DID IMPROVE AND WE ONCE AGAIN TRIED TO HELP
14 HER WITH HER PSYCHIATRIC PROBLEMS, BUT THEN SHE GOT VERY
15 SICK. SHE HAD A SEIZURE AND THEN SHE HAD A G.I. BLEED. HER
16 SON MERLIN TOLD ME THAT THEY WERE HAVING A REALLY HARD TIME
17 GETTING HER PLACED ANYWHERE. HE HAD STATED THAT A NURSE HAD
18 TOLD HIM THAT SHE WOULD HAVE TO LEAVE THE UNIT. AND HE TOLD
19 ME HOW HARD THAT WAS GOING TO BE AND I SAID, I WON'T MAKE
20 HER LEAVE. SHE CAN STAY ON THE HOSPITAL UNIT. IT LOOKED
21 LIKE SHE WAS DYING. AND I TOLD HIM THAT SHE COULD BASICALLY
22 STAY THERE.
23 Q. AND WHY DID YOU DO THAT?
24 A. WELL, WHEN A PATIENT IS IN THAT STATE, IT'S NOT EASY TO
25 PUT THEM IN AN AMBULANCE AND MOVE THEM SOMEWHERE ELSE, FOR
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1 THE PATIENT OR THE FAMILY. HE WAS TELLING ME THAT HE DIDN'T
2 KNOW WHERE HE'D TAKE HER. IT SEEMED LIKE THE RIGHT THING TO
3 DO FOR THE FAMILY.
4 Q. NOW, DID THE EXPERIENCE THAT YOU HAD IN CARING FOR
5 PATIENT JUDITH LARSEN, DID THAT HAVE AN EFFECT ON YOU IN
6 TERMS OF CARE THAT YOU PROVIDED TO THE OTHER PATIENTS IN
7 THIS CASE?
8 A. YES, IT DID.
9 Q. AND WOULD YOU TELL US, PLEASE, HOW SO?
10 A. I'D NEVER BEEN THE ATTENDING PHYSICIAN FOR A PERSON FOR
11 END-OF-LIFE CARE. I, AS A RESIDENT MEDICAL STUDENT, I'VE
12 WORKED WITH FOLKS WHO WERE DYING, BUT THIS WAS MY FIRST
13 EXPERIENCE AS AN ATTENDING AND FRANKLY, I JUST SORT OF FELL
14 INTO IT. BUT IT DID SEEM TO HELP THAT FAMILY AND THAT
15 PATIENT, MISS LARSEN AND HER FAMILY. WHEN THESE OTHER
16 PEOPLE IN THE SAME SITUATION, IT SEEMED LIKE THE LOGICAL AND
17 RIGHT THING TO DO.
18 Q. NOW, THE FOUR PATIENTS THAT ARE INVOLVED IN THIS CASE
19 WHICH YOU DID ACTUALLY ORDER AND THEY RECEIVED PSYCHIATRIC
20 MEDICATIONS, DID YOU ACTUALLY ORDER THAT PSYCHOTROPIC
21 MEDICATIONS WERE APPROPRIATE FOR THEM?
22 A. I DID ORDER THOSE AND THOUGHT THEY WERE APPROPRIATE.
23 Q. AND GENERALLY WOULD YOU TELL US WHY YOU THINK THE
24 MEDICATIONS WERE CALLED FOR?
25 A. WELL, THEY WERE ALL VERY DEMENTED AND BEHAVIORALLY
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1 DISTURBED. AND THAT WAS MY JOB. I WAS A PSYCHIATRIST WHO
2 WAS CHARGED WITH FIGURING OUT WHAT THE MEDICAL PROBLEMS
3 WERE, WHAT THE MEDICATIONS WERE DOING AND TRYING TO GET THAT
4 BEHAVIOR CONTROLLED AND HELP THEM FEEL BETTER.
5 Q. AND JUST SO WE'RE CLEAR, THE FOUR PATIENTS WHO ACTUALLY
6 RECEIVED PSYCHOTROPIC MEDICATIONS, DO YOU RECALL WHO THEY
7 WERE?
8 A. SURE.
9 Q. WOULD YOU TELL US, PLEASE?
10 A. WELL, ENNIS ALLDREDGE, JUDITH LARSEN, LYDIA SMITH AND
11 MARY CRANE.
12 Q. AND WOULD YOU TELL US WHAT BENEFITS DID THE DRUGS THAT
13 YOU ORDERED HAVE IN TERMS OF THEIR SYMPTOMS OR THEIR
14 PSYCHIATRIC PROBLEMS?
15 A. WELL, WE USED BASICALLY FOUR CLASSES OF MEDICATIONS
16 THERE. ANTIANXIETY MEDICATION SUCH AS ATIVAN WOULD DECREASE
17 ANXIETY AND CAUSE SOME SEDATION SO PATIENTS WEREN'T CLIMBING
18 OUT OF BED OR THROWING THINGS. ANTIDEPRESSANTS WERE USED.
19 THE PATIENTS APPEARED VERY UNHAPPY AT TIMES AND THAT SEEMED
20 TO BE HELPFUL AND HAS BEEN REALLY HELPFUL FOR A LOT OF
21 DEMENTED PATIENTS. ANTIPSYCHOTICS WERE USED. AND THIS IS
22 MOSTLY FOR CONTROL OF BEHAVIOR THAT'S OUT OF CONTROL. AND
23 THEN MOOD STABILIZERS LIKE DEPAKOTE. AND I GUESS I'D HAVE
24 TO INCLUDE CLONIDINE. ONE PATIENT GOT CLONIDINE IN AN
25 ATTEMPT TO STABILIZE THE MOOD, SEDATE THE PATIENT SOMEWHAT.
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1 ALL OF THESE MEDICINES ARE SEDATING TO ONE DEGREE OR ANOTHER
2 AND THAT'S BECAUSE THE PATIENTS ALL CAME IN VERY, VERY,
3 AGITATED AND NEEDED SEDATION.
4 Q. DID YOU HAVE SOME MEDICATION HISTORY ON EACH ONE OF
5 THOSE FOUR PATIENTS PRIOR TO ACTUALLY ORDERING DRUGS OR
6 MEDICATIONS FOR THEM?
7 A. YES. I WOULD HAVE SOME HISTORY IN VARYING DEGREES.
8 Q. AND WHAT SIGNIFICANCE, IF ANY, DID THAT MEDICATION
9 HISTORY HAVE IN TERMS OF WHAT YOU DID?
10 A. WELL, IT TOLD ME IT WOULD HAVE BEEN TRIED BEFORE,
11 WHETHER THAT WAS WORKING OR NOT, THE LEVEL AT WHICH THE
12 MEDICATION HAD BEEN PRESCRIBED AND WHETHER THAT WAS WORKING
13 OR NOT, GIVING ME AN INDICATION OF HOW SICK THE PATIENTS
14 WERE. ALSO SINCE SOME OF THESE PATIENTS WERE CONTINUED ON
15 THE SAME MEDICATIONS THEY WERE NO LONGER ON INITIAL STARTING
16 DOSES. IT REALLY HELPED ME A LOT IN KIND OF GUIDING ME AND
17 HELPING ME MAKE AN EDUCATED GUESS AS TO WHAT WOULD HELP
18 DURING THEIR TIME WITH ME.
19 Q. DID IT HAVE ANY SIGNIFICANCE IN TERMS OF DOSING LEVELS?
20 A. SURE.
21 Q. AND WOULD YOU TELL US HOW SO?
22 A. WELL, SINCE I CAN'T ASK A PATIENT EXACTLY HOW THEY ARE
23 FEELING AND I JUST HAVE TO GO FROM EXTERIOR BEHAVIOR, ANY
24 KIND OF INFORMATION THAT WILL GUIDE ME IS HELPFUL. AND A
25 PREVIOUS HISTORY IS GOING TO HELP. A LOT HAS BEEN MADE OF
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1 THESE -- OF THE GERIATRIC DOSAGE HANDBOOK AND DOSAGES
2 PUBLISHED THERE. THOSE ARE GUIDELINES. AND AS A
3 PSYCHIATRIST I HAVE TO GO BY THE CLINICAL BEHAVIOR AND
4 TRYING ADJUSTED MEDICATIONS TO THE PATIENT'S BEHAVIOR AND
5 TRY AND HELP THEM THERE. SO KIND OF FLYING BY THE SEAT OF
6 MY PANTS THERE. WITH PEOPLE WHO ARE DEMENTED ANY KIND OF
7 INFORMATION IS HELPFUL.
8 Q. DID YOU TAKE PRECAUTIONS IN TERMS OF ANY POSSIBLE
9 ADVERSE EFFECTS OF THE PSYCH MEDICATIONS CONCERNING THESE
10 FOUR PATIENTS?
11 A. YES.
12 Q. AND WOULD YOU TELL US THE KIND OF PRECAUTIONS THAT YOU
13 TOOK?
14 A. I GENERALLY CAME TO THE UNIT EVERY DAY OF THE WEEK. I
15 WAS ON CALL 24/7. THE NURSES ARE THERE 24/7 ALL THE TIME
16 AND WOULD BE MY EYES AND EARS WHEN I WASN'T THERE. SO I
17 TALKED WITH THE NURSES. AND I'D SEE THE PATIENTS AND I'D
18 LOOK FOR ADVERSE SIDE EFFECTS. IF THERE WERE ANY, I'D
19 CHANGE THE MEDICATIONS.
20 Q. WERE YOU CONCERNED ABOUT SEDATION OR TOO MUCH SEDATION?
21 A. YES.
22 Q. AND HOW DID YOU MONITOR FOR OVERSEDATION OR TOO MUCH
23 SEDATION?
24 A. CHECKING THE NURSES' NOTES AND CHECKING THE PATIENT.
25 LOOKING AT THE OVERALL PICTURE FOR THE LAST 24 HOURS AND
3760
1 THEN FOR THE LAST WEEK, SAY. THE TREND.
2 Q. NOW, DID YOU RELY ON THE INFORMATION THAT YOU RECEIVED
3 FROM THE NURSES?
4 A. YES, I DID.
5 Q. AND COULD YOU KIND OF EXPLAIN HOW IT WORKED IN TERMS OF
6 YOUR RELATIONSHIP WITH THEM AND THE INFORMATION THEY
7 PROVIDED IN TERMS OF WHAT YOU ACTUALLY ORDERED IN TERMS OF
8 MEDICATION?
9 A. WELL, WHEN I'D COME IN I WOULD TALK WITH WHATEVER NURSE
10 WAS THERE AND GET THEIR IMPRESSION ON EACH PATIENT AS TO HOW
11 THEY WERE DOING. I COULD READ THEIR NOTES. I COULD READ
12 THE NOTES OF THE OTHER PEOPLE ON THE UNIT, WHATEVER HAD BEEN
13 WRITTEN. WE HAD TEAM MEETINGS WHERE WE DISCUSSED PATIENTS
14 AND SORT OF GET EVERYONE'S IDEAS OUT THERE AS TO WHAT THEY
15 WERE SEEING. I SORT OF PUT THIS ALL IN THE HOPPER AND TRY
16 AND MAKE SENSE OF IT.
17 Q. NOW, IN TERMS OF THE FOUR PATIENTS THAT RECEIVED PSYCH
18 MEDICATIONS, DID YOU HAVE OCCASION AT TIMES TO ADJUST OR
19 CHANGE THEIR PSYCH MEDICATIONS?
20 A. YES, PRETTY MUCH EVERY DAY.
21 Q. AND GENERALLY WOULD YOU TELL US WHY YOU WOULD DO THAT?
22 A. WELL, I WOULD COME IN AND SEE WHAT BEHAVIOR THEY WERE
23 HAVING AND ADJUST THE MEDICATION ACCORDINGLY TO TRY AND
24 CONTROL THE SYMPTOMS, HELP THEM FEEL BETTER. IF THEY WERE
25 IN SOME WAY HAVING SIDE EFFECTS, I'D WANT TO PERHAPS BACK
3761
1 OFF ON A MEDICATION OR GIVE THE ANTIDOTE TO THE SIDE EFFECT.
2 Q. NOW, DO YOU HAVE A PATIENT JUDITH LARSEN'S BINDER STILL
3 IN FRONT OF YOU?
4 A. RIGHT HERE.
5 Q. COULD YOU TURN TO -- THERE'S A PROGRESS NOTE. I BELIEVE
6 IT'S FOR THE 13TH OF DECEMBER OF 1995.
7 A. RIGHT HERE.
8 Q. WOULD YOU READ THAT NOTE FOR US, PLEASE, IN ITS
9 ENTIRETY?
10 A. THAT'S MY NOTE ON 470.
11 Q. 1213. YES. PAGE 470 AT THE TOP.
12 A. ANSWERED ONE QUESTION INTELLIGENTLY TODAY. QUOTE, HOW
13 ARE YOU. QUOTE, I FEEL BAD. THEN --
14 Q. LET ME STOP YOU RIGHT THERE. WAS THERE ANY SIGNIFICANCE
15 TO THE FACT THAT YOU WROTE THAT IN THE PROGRESS NOTE?
16 A. INDICATES THE LEVEL OF DEMENTIA AND IT INDICATES SOME
17 IMPROVEMENT AT THAT POINT.
18 Q. ALL RIGHT. IF YOU WOULD CONTINUE?
19 A. WELL, SHE ANSWERED, I FEEL BAD. THEN REFUSED TO ANSWER.
20 EATING. TAKING FLUIDS NOW. VITAL SIGNS STABLE AFEBRILE.
21 APPEARS TO BE IN SOME PAIN. REMAINS FAIRLY PROFOUNDLY
22 DEMENTED. ASSESSMENT: MAJOR DEPRESSIVE DISORDER WITH
23 PSYCHOTIC FEATURES. PLAN: CONTINUED KLONOPIN TAPER AND
24 SERZONE AND RISPERDAL. MORPHINE FOR PAIN. ROBERT WEITZEL,
25 M.D.
3762
1 Q. NOW, WHERE IT SAYS PLAN, YOU SAID CONTINUE KLONOPIN
2 TAPER. WHAT IS A KLONOPIN TAPER?
3 A. MISS LARSEN HAD BEEN PRESCRIBED XANAX BEFORE ADMISSION.
4 I PREFER NOT TO USE XANAX. IF I'M GOING TO USE A SHORT
5 ACTING VALIUM TYPE DRUG, I USE ATIVAN, AND I WANTED HER OFF
6 THAT. YOU CAN'T JUST STOP ONE OF THESE DRUGS. IT SORT OF
7 LIKE -- WELL, YOU ARE TOLERANT TO IT AND IF YOU STOP
8 ABRUPTLY YOU CAN HAVE SEIZURES AND ALL SORTS OF PROBLEMS.
9 SO I PUT HER ON LONG ACTING BENZODIAZEPINE, KLONOPIN, AND
10 SLOWLY TAPERED IT. THAT'S THE SAFE WAY TO DO IT.
11 Q. WERE THERE TIMES WHEN YOU INCREASED MEDICATION?
12 A. SURE.
13 Q. AND WOULD YOU TELL US THE CIRCUMSTANCES WHEN YOU WOULD
14 HAVE INCREASED MEDICATION CONCERNING THESE FOUR PATIENTS?
15 A. IF I WERE TO COME IN AND FIND THAT THE PATIENTS WERE
16 HAVING THE SAME SORT OF BEHAVIORAL SYMPTOMS THAT HAD BROUGHT
17 THEM THERE ON THE MEDICATIONS THAT WE'D BEEN USING, I WOULD
18 GENERALLY INCREASE THEM OR PERHAPS CHANGE THEM, ADD A
19 MEDICATION, SORT OF INDIVIDUALIZE TO THE PATIENT. BUT IF
20 THERE WERE CONTINUED PROBLEMS, I WOULD PROBABLY INCREASE THE
21 MEDICATION.
22 Q. YOU RECALL A CIRCUMSTANCE INVOLVING PATIENT LYDIA SMITH?
23 A. THERE'S A LOT OF CIRCUMSTANCES WITH HER. WHICH ONE?
24 Q. WELL, WHY DON'T YOU PULL OUT HER BINDER, PLEASE.
25 A. OKAY.
3763
1 Q. AND IF YOU WOULD TURN IN YOUR PROGRESS NOTE SECTION
2 JANUARY 1 OF 1996. IT WOULD BE ON 7/16.
3 A. GOT IT.
4 Q. DO YOU SEE THAT?
5 A. I DO.
6 Q. WOULD YOU PLEASE READ THAT IN ITS ENTIRETY, THAT NOTE?
7 A. OKAY. SLEPT THROUGH THE NIGHT. HAS BEEN REFUSING
8 MEDICATIONS AGAIN AND WAS QUITE RECALCITRANT. GOT
9 AGGRESSIVE THIS EVENING AND RECEIVED ATIVAN INTRAMUSCULARLY
10 WHICH HELPED. VITAL SIGNS STABLE. AFEBRILE. AND THEN
11 ASSESSMENT: REMAINS LABILE AND INTERMITTENTLY AGGRESSIVE.
12 PLAN: INCREASE -- I HAVE DEPAKOTE AND HAVE CROSSED IT OUT
13 FOR DEPAKENE. SIGNED ROBERT WEITZEL, M.D.
14 Q. NOW, THAT INDICATES AN INCREASE IN DEPAKENE.
15 A. RIGHT.
16 Q. WHY DO YOU RECALL THE CIRCUMSTANCES THAT YOU INCREASED
17 DEPAKENE AT THAT TIME?
18 A. IT'S A MOOD STABILIZER AND SHE WAS HAVING A LOT OF
19 AGGRESSION AND ALSO HER MOOD WAS LABILE. HER EMOTIONS WERE
20 UP AND DOWN, ALL OVER THE PLACE, AND I WANTED TO TRY AND GET
21 THAT UNDER CONTROL WITH DEPAKENE.
22 Q. NOW, I THINK PATIENT LYDIA SMITH AND MARY CRANE RECEIVED
23 DEPAKENE SYRUP; IS THAT RIGHT?
24 A. SYRUP AND SPRINKLES. IT'S AN ORAL FORM THAT'S EASY TO
25 TAKE.
3764
1 Q. AND WOULD YOU TELL US WHY THAT IS GIVEN?
2 A. WELL, DEPAKOTE, THE ONE I CROSSED OUT, ONLY COMES IN A
3 PILL AND I THINK IT COMES I.V. BUT WE OFTEN HAD PROBLEMS
4 WITH THESE PATIENTS GETTING THEM TO TAKE THEIR MEDICATIONS,
5 SO FREQUENTLY THE NURSES WOULD MIX THEIR MEDICATION IN WITH
6 ICE CREAM OR FOOD OR A DRINK AND THIS WAS REALLY EASY TO DO
7 WITH DEPAKENE.
8 Q. AND WHAT IS THAT PARTICULAR MEDICATION GIVEN FOR?
9 WHAT'S ITS PURPOSE?
10 A. WELL, IT'S VALPROIC ACID AND IT'S INITIAL -- I THINK ITS
11 F.D.A. APPROVED USE IS FOR CONVULSIONS, FOR SEIZURES. IT'S
12 OFF LABEL USE -- IT'S BEEN -- THERE HAVE BEEN MANY, MANY
13 ARTICLES IN PSYCHIATRY DESCRIBING ITS USE TO CONTROL MANIC
14 BEHAVIOR AND ANY KIND OF AGGRESSIVE AGITATED BEHAVIOR. IT'S
15 A MOOD STABILIZER.
16 Q. AND IN TERMS OF ITS ANTICONVULSANT QUALITY, DID THAT
17 HAVE SOME RELEVANCE TO MARY CRANE'S SITUATION?
18 A. WELL, YES, IT DID. NOT A DIRECT RELEVANCE BUT BECAUSE
19 SHE HAD HAD SEIZURES IN THE PAST, IT'S A GOOD CHOICE BECAUSE
20 IT'S, YOU KNOW, IT'S ANTISEIZURE AND SO YOU CAN KIND OF
21 PROTECT HER THERE. SHE HAD HAD SEIZURES BOTH FROM HER
22 HYPONATREMIA AND PROBABLY FROM THE FACT SHE HAD STROKES AND
23 SUCH PROCEDURES.
24 Q. I THINK WE'VE HAD THIS WORD FURTHER DEFINED BEFORE, BUT
25 JUST FOR YOUR PURPOSE, HYPONATREMIA IS WHAT?
3765
1 A. HYPONATREMIA IS LOW SODIUM IN THE BLOOD. WE'RE NOT SURE
2 WHY, BUT FOR YEARS MISS CRANE HAD HAD SOMETHING CALLED
3 PSYCHOGENIC POLYDIPSIA WHERE PSYCHOGENY MEANS IT COMES FROM
4 THE MIND AND POLYDIPSIA MEANS DRINKING A LOT. SHE'D DRINK
5 FLUIDS CONSTANTLY. ON HOSPITALIZATION FOR US SHE EXHIBITED
6 SOME OF THAT. AT ONE TIME HER SODIUM HAD BEEN IN I THINK IT
7 WAS 109 AND SHE HAD SEIZURES. THAT'S A REAL SERIOUS
8 CONDITION, THAT SODIUM FLUCTUATIONS. IT CAN AFFECT LIFE
9 ITSELF, DEFINITELY HER THOUGHT PROCESS.
10 Q. NOW, I WANT YOU TO TURN BACK TO THE BINDER FOR JUDITH
11 LARSEN.
12 A. OKAY.
13 Q. TELL US, ROBERT, DO YOU HAVE A RECOLLECTION OF PATIENT
14 JUDITH LARSEN?
15 A. MOSTLY I REMEMBER HER FAMILY. I DON'T REMEMBER HER THAT
16 WELL. BUT I REMEMBER SOME OF THE CIRCUMSTANCES, ESPECIALLY
17 DEALING WITH HER SON MERLIN.
18 Q. AND WHAT WAS YOUR IMPRESSION OF HER CONDITION AT THE
19 TIME OF HER ADMISSION? AND FEEL FREE TO REFER TO --
20 A. I'M GOING TO LOOK AT MY PSYCH EVAL. THE DIAGNOSIS I
21 FOUND WAS MAJOR DEPRESSION WITH PSYCHOTIC FEATURES AND RULE
22 OUT ORGANIC BRAIN SYNDROME. SHE WAS VERY DEMENTED, VERY
23 AGITATED AND SHE WAS MEDICALLY -- SHE WAS 93 AND SHE WASN'T
24 IN THE BEST OF MEDICAL HEALTH.
25 Q. DID YOU HAVE A ROLE TO PLAY IN TERMS OF HER ADMISSION TO
3766
1 THE HOSPITAL?
2 A. YES.
3 Q. AND WHAT WAS THAT ROLE?
4 A. WELL, ONCE AGAIN, YOU KNOW, THEY WOULD CALL ME AND SAY
5 THERE'S A PATIENT WHOSE -- THAT A FAMILY OR THE DOCTOR IS
6 ASKING FOR ADMISSION AND THEY KIND OF TOLD ME WHAT WAS THE
7 STORY AND I SAID, I THINK WE CAN HELP HER, AND SHE WAS
8 ADMITTED. I WROTE ADMISSION ORDERS. I DID MENTAL STATUS
9 EXAM, PSYCHIATRIC EVAL. GOT THINGS GOING.
10 Q. DID YOU HAVE OR DID YOU FORM A PROGNOSIS UPON HER
11 ADMISSION AS TO HOW SHE WOULD DO?
12 A. IT WAS FAIRLY GUARDED.
13 Q. AND WHY DO YOU SAY IT WAS GUARDED?
14 A. WELL, ALL OF THE PATIENTS WE HAD WERE FAIRLY DIFFICULT
15 PATIENTS ON THE GEROPSYCH UNIT, BUT THE DEMENTED PATIENTS
16 WERE PARTICULARLY HARD 'CAUSE YOU CAN'T TALK WITH THEM AND
17 REALLY THERE IS NO WAY TO REVERSE THE DEMENTIA ITSELF. YOU
18 CAN JUST TRY AND TREAT THE SYMPTOMS. FINALLY, SHE WAS
19 MEDICALLY ILL.
20 Q. DID YOU -- WERE YOU ABLE TO OBSERVE HER DURING HER
21 COURSE OF TREATMENT IN THE HOSPITAL SO THAT YOU COULD
22 CHARACTERIZE HER PROGRESS?
23 A. YES.
24 Q. AND TELL US WHAT PROGRESS THAT SHE MADE WHILE SHE WAS IN
25 THE HOSPITAL.
3767
1 A. WELL, IT WAS UP, THEN DOWN. UP AND THEN DOWN. IT WAS
2 VARIABLE. SHE PROGRESSED AT TIMES AND THEN UNFORTUNATELY
3 SHE GOT ILL AND DIED.
4 Q. NOW, IN THE PSYCH EVALUATION, THE WRITTEN REPORT, DO YOU
5 HAVE THAT IN FRONT OF YOU?
6 A. YES, RIGHT HERE.
7 Q. YOU MAKE -- I THINK YOU STATE YOU INDICATE YOU ARE GOING
8 TO START PATIENT JUDITH LARSEN ON RISPERDAL AND SERZONE.
9 A. RIGHT.
10 Q. DO YOU SEE THAT?
11 A. DISCUSSES RECOMMENDATION. GET FULL MEDICAL WORKUP AND
12 PROBABLY START SERZONE AND RISPERDAL.
13 Q. WHY DID YOU FEEL THAT THOSE MEDICATIONS WERE
14 APPROPRIATE?
15 A. WELL, SHE SEEMED VERY UNHAPPY, CRYING, SCREAMING. I
16 PICKED SERZONE AS AN ANTIDEPRESSANT WHICH IS MILDLY SEDATING
17 AND ANXIETY-RELIEVING. RISPERDAL I PICKED BECAUSE IT'S A
18 NEW ANTIPSYCHOTIC WITHOUT A LOT OF THE SIDE EFFECTS OF THE
19 OLD ONES. AND IT'S A COMMON COMBINATION FOR FOLKS IN THIS
20 STATE, SERZONE AND RISPERDAL.
21 Q. DID SHE ALSO A HAVE A HISTORY OF RECEIVING TRAZODONE?
22 A. YES, SHE DID.
23 Q. AND DID THAT HAVE ANY SIGNIFICANCE TO YOU IN TERMS OF
24 YOUR ORDERING TRAZODONE?
25 A. WELL, SHE HAD BEEN ON 100 MILLIGRAMS AT BEDTIME AND SO I
3768
1 KNOW THAT DESPITE THAT -- WELL, FIRST OF ALL, IT'S NOT
2 HURTING HER. SHE'S CLEARLY STILL NOT SEDATED. AND I KNOW
3 THAT NOW THAT SHE'D BEEN ON TRAZODONE, SO WE CAN CERTAINLY
4 GO UP ON THE DOSE IF WE NEED TO.
5 Q. WHAT'S TRAZODONE PRESCRIBED FOR?
6 A. WELL, IT'S AN ANTIDEPRESSANT AND IT'S A REALLY OLD
7 ANTIDEPRESSANT. IT'S BEEN AROUND FROM WAY BACK. BACK WHEN
8 I FIRST STARTED IN PSYCHIATRY, THE ANTIDEPRESSANTS, ALL OF
9 THEM WERE VERY DANGEROUS. YOU COULD OVERDOSE QUITE EASILY
10 WITH SAY A WEEK OR TEN DAYS' SUPPLY EXCEPT FOR TRAZODONE.
11 SO IT WAS NICE TO HAVE IF YOU WERE WORRIED ABOUT GIVING
12 MEDICATION TO SOMEONE WHO MIGHT TURN AROUND AND TAKE IT ALL.
13 PROBLEM WITH IT, IT'S QUITE SEDATING, AND IN GOOD
14 ANTIDEPRESSANT DOSES OF AROUND 400 TO 600 MILLIGRAMS A DAY,
15 IT'S PROBABLY OVERSEDATING FOR AT LEAST 50 PERCENT OF THE
16 PEOPLE AND MORE LIKE 75 PERCENT IN THE ELDERLY. IT'S STILL
17 USED A LOT, THOUGH, AS A SLEEP AID. IT'S NOT ADDICTIVE.
18 IT'S QUITE SEDATING. IT WORKS. DOES HAVE SOME PROBLEMS YOU
19 HAVE TO WATCH OUT FOR. PEOPLE SOMETIMES WAKE UP IN THE
20 MORNING AND ARE STILL GROGGY AND FALL DOWN ON TRAZODONE, BUT
21 IN MANY WAYS IT'S A REAL GOOD SLEEP AID. AND IT'S RELATED
22 TO SERZONE AND NEFAZODONE, TRAZODONE. SAME CHEMICAL
23 CATEGORY, DIFFERENT DRUGS. BUT I OFTEN COMBINE THE TWO.
24 I'LL GIVE THE SERZONE DURING THE DAY AS AN ANTIDEPRESSANT,
25 TRAZODONE AT NIGHT TO HELP SLEEP. A LOT OF PEOPLE WITH
3769
1 DEPRESSION HAVE PROBLEMS WITH SLEEPING, SO THAT'S HELPFUL.
2 AND THEN THE LOWER DOSE OF TRAZODONE CAN HELP AUGMENT THE
3 SERZONE.
4 Q. WHY DID YOU FEEL TRAZODONE WAS APPROPRIATE FOR JUDITH
5 LARSEN?
6 A. WELL, IT'S PROBABLY THE BEST SLEEP AID THERE IS AND SHE
7 WAS ALSO DEPRESSED. WE NOW HAVE AMBIEN AND I GUESS IT WAS
8 AVAILABLE BACK THEN. IT WAS PRETTY NEW. I WAS HOPEFUL IT
9 WOULD BE HELPFUL IN HER SLEEP AND SEDATE A BIT.
10 Q. NOW, IN THE PSYCH EVALUATION, THE WRITTEN REPORT, YOU
11 REFER TO HER AS UNRESPONSIVE AND NON-RESPONSIVE.
12 A. OKAY. I FOUND UNRESPONSIVE. AND THERE'S
13 NON-RESPONSIVE.
14 Q. USING THOSE WORDS, TELL US WHAT YOU MEAN BY THEM.
15 A. WELL, WHERE IT SAYS UNRESPONSIVE, IT'S UNDER THE
16 HISTORY. IT SAYS SHE'S CRYING, SHOUTING WHEN AWAKE, SLEEPING
17 MOST OF THE TIME, IS FAIRLY UNRESPONSIVE. THAT MEANS WHEN
18 YOU ASK HER A QUESTION, SHE WON'T ANSWER IT IN ANY
19 INTELLIGIBLE WAY.
20 Q. WHAT'S THE SIGNIFICANCE OF THE FACT THAT SHE WOULD NOT
21 ANSWER A QUESTION?
22 A. YOU COULDN'T COMMUNICATE WITH HER AND IT INDICATED SHE
23 WAS PRETTY DEMENTED.
24 Q. AND DID THAT COMPLICATE YOUR ABILITY TO PROVIDE
25 TREATMENT FOR HER?
3770
1 A. YES, IT DID.
2 Q. AND TELL US IN WHAT WAY?
3 A. ONCE AGAIN, YOU CAN'T DIRECTLY ASK A PATIENT WHAT'S
4 GOING ON INSIDE AND YOU JUST SORT OF HAVE TO GO BY THE SIGNS
5 OF WHAT'S GOING ON RATHER THAN SYMPTOMS THAT CAN BE
6 REPORTED.
7 Q. AND BY SIGNS, WHAT DO YOU MEAN?
8 A. WHAT YOU CAN SEE FROM THE OUTSIDE; SCREAMING, MOANING,
9 CRYING OR CONVERSELY MAYBE LAUGHTER OR SMILING. ALSO SIGNS
10 WOULD PROBABLY INCLUDE VITAL SIGNS. ANYTHING YOU CAN
11 MEASURE WITHOUT DIRECTLY ASKING THE PATIENT.
12 Q. NOW, I WANT YOU TO GO BACK IN THE PROGRESS NOTE SECTION,
13 SPECIFICALLY THE NOTES THAT GO FROM DECEMBER 12TH THROUGH
14 THE 19TH. DO YOU HAVE THOSE IN FRONT OF YOU?
15 A. YES. 12TH. YES.
16 Q. HOW WOULD YOU CHARACTERIZE THE CIRCUMSTANCES IN HER
17 CONDITION DURING THAT TIME PERIOD WHILE SHE WAS IN THE
18 HOSPITAL?
19 A. WELL, SHE WAS HAVING -- SHE HAD A BAD SPELL RIGHT BEFORE
20 THAT, BUT THEN SHE IMPROVED. BOTH PHYSICALLY AND MENTALLY
21 SHE WAS DOING BETTER.
22 Q. AND IN FACT, THERE'S AN ENTRY, IS THERE NOT, I BELIEVE
23 IT'S THE 15TH, WHERE YOU REFER TO A MIRACULOUS RECOVERY?
24 A. FOURTEENTH.
25 Q. AND READ THAT NOTE IN ITS ENTIRETY, PLEASE.
3771
1 A. 12/14 HAS MADE A MIRACULOUS RECOVERY. AMBULATED
2 YESTERDAY. TAKING FOOD WELL. VITAL SIGNS STABLE.
3 AFEBRILE. ASSESSMENT: DOING MUCH BETTER. REMAINS
4 DEMENTED. PLAN: CONTINUE CURRENT THERAPY. ROBERT WEITZEL.
5 Q. WHEN YOU WROTE THAT ENTRY IN THE PROGRESS NOTE, DO YOU
6 RECALL IF EARLENE COZZENS HAD ANYTHING TO DO WITH WHAT YOU
7 WROTE AT THAT TIME?
8 A. NO. I HEARD HER TESTIMONY HERE, BUT I DON'T RECALL HER
9 HAVING ANYTHING TO DO WITH THIS NOTE.
10 Q. AND WHY DID YOU REFER TO IT AS A MIRACULOUS RECOVERY?
11 A. IT DID LOOK LIKE A MIRACLE. SHE HAD ON THE 12TH OR ON
12 THE 11TH, I THINK, SHE HAD -- HER OXYGEN SATURATION WAS 77
13 AND SHE WASN'T TAKING FLUIDS AND SHE LOOKED -- THE SITUATION
14 LOOKED PRETTY GRAVE. I TALKED WITH HER SON ABOUT IT. I WAS
15 SO CONCERNED I TALKED WITH HER SON THINKING SHE MIGHT NOT
16 MAKE IT. AND THEN DESPITE ALL THAT, SHE TURNED AROUND AND
17 REALLY REBOUNDED. IT WAS A MIRACLE IN A SENSE. I DON'T
18 THINK I'VE SEEN THAT BEFORE.
19 Q. NOW, DURING THIS TIME PERIOD GENERALLY YOU HAD OCCASION
20 TO WRITE AN ORDER FOR MORPHINE P.R.N.?
21 A. YES, ON THE 13TH.
22 Q. AND WHY DID YOU WRITE SUCH AN ORDER?
23 A. SHE LOOKED LIKE SHE WAS IN PAIN AT TIMES AND I WANTED
24 THE NURSES TO HAVE A P.R.N. IN CASE THEY FELT LIKE SHE
25 NEEDED IT.
3772
1 Q. AND DO YOU RECALL WHEN IT WAS DISCONTINUED?
2 A. THE 19TH.
3 Q. AND TELL US WHY YOU DISCONTINUED THE ORDER ON THE 19TH?
4 A. WELL, THAT DAY I GOT AN AUTOMATIC DRUG STOP ORDER IN THE
5 CHART WHICH CLUED ME IN, CHECK THIS OUT, AND SHE HADN'T BEEN
6 USING IT. IT HADN'T BEEN NEEDING IT AT ALL, SO I JUST
7 DISCONTINUED IT.
8 Q. DO YOU RECALL IF A CONVERSATION WITH BONNIE HARDY
9 INFLUENCED YOUR DECISION TO DISCONTINUE THAT ORDER ON THAT
10 DATE?
11 A. I DON'T RECALL ANY CONVERSATION REGARDING THAT WITH
12 BONNIE.
13 Q. DO YOU RECALL ANY CONVERSATION WITH BONNIE HARDY ON OR
14 ABOUT THAT TIME WHERE SHE EXPRESSED SOME CONCERN ABOUT THAT
15 ORDER BEING IN THE CHART RELEVANT TO OTHER MEDICATIONS WHICH
16 WERE ALSO BEING ORDERED?
17 A. I DON'T RECALL TALKING WITH HER AT THAT TIME ON THIS
18 SUBJECT.
19 Q. NOW, I WANT TO ASK YOU, AFTER THE PERIOD THAT YOU'VE
20 JUST REFERRED TO, DID PATIENT JUDITH LARSEN'S CONDITION
21 IMPROVE OR DETERIORATE?
22 A. AFTER THE 19TH?
23 Q. YES.
24 A. WELL, SHE CONTINUED TO DO PRETTY WELL FOR A WHILE, BUT
25 THEN SHE DID HAVE A PROBLEM. SHE HAD SOME PROBLEMS STARTING
3773
1 AROUND CHRISTMAS.
2 Q. AND WHAT DO YOU RECALL HAPPENED?
3 A. BASICALLY SHE HAD A PRETTY BAD SEIZURE ON THE 26TH AND
4 THEN SHE HAD A BAD G.I. BLEED THEREAFTER.
5 Q. WERE YOU ABLE TO DETERMINE THE CAUSES FOR THE SEIZURE?
6 A. NO, NOT REALLY. SHE HAD HAD STROKES AND THAT'S PROBABLY
7 THE BEST GUESS ON MY PART AS TO WHAT CAUSED IT. SOMEONE
8 SAID, WELL, SHE HAD MORPHINE THE DAY BEFORE --
9 MR. WILSON: OBJECTION, YOUR HONOR, AS TO WHAT
10 SOMEONE SAID.
11 THE COURT: REPHRASE THE QUESTION.
12 Q. (BY MR. STIRBA) WERE YOU ABLE TO DETERMINE THE CAUSE
13 OF HER SEIZURE?
14 A. THERE IS NO WAY TO KNOW EXACTLY WHAT CAUSED IT.
15 Q. AND DID YOU -- YOU SAID YOU REFERRED TO IT AS A PRETTY
16 BAD SEIZURE. COULD YOU EXPLAIN WHY YOU REFER TO IT IN THOSE
17 TERMS?
18 A. WELL, IT WENT ON FOR SOME TIME. I WANT TO FIND MAYBE
19 THE NOTE ON THAT. DR. DIENHART CAME IN AND STARTED DILANTIN
20 FOR IT. IT WAS CONSIDERED TO BE A SIGNIFICANT EVENT.
21 Q. NOW, I WANT YOU TO TURN, PLEASE, TO THE -- THERE ARE TWO
22 NOTES. THERE IS IN YOUR PROGRESS NOTES ONE ON THE 30TH OF
23 DECEMBER AND ONE ON THE 31ST.
24 A. OKAY.
25 Q. DO YOU HAVE THOSE IN FRONT OF YOU?
3774
1 A. RIGHT NOW I DO.
2 Q. AND SPECIFICALLY IF YOU COULD READ FOR US WHAT YOU
3 CHARTED ON THE 30TH OF DECEMBER OF 1995?
4 A. OKAY. MET WITH SON AND DAUGHTER THIS EVENING REGARDING
5 PATIENT'S CONDITION. SHE HAD COFFEE GROUNDS VOMITUS OF
6 GREATER THAN 200 CC THIS MORNING. STOMACH IS DISTENDED.
7 HAS HYPERACTIVE BOWEL SOUNDS. HEART RATE QUITE ERRATIC.
8 ASSESSMENT: GASTROINTESTINAL BLEED. PLAN: MAKE SURE SHE'S
9 COMFORTABLE WITH ROUTINE MORPHINE AND SIGNED. YOU WANT THE
10 31ST TOO?
11 Q. LET ME STOP YOU THERE AND JUST LET'S FOCUS ON THAT
12 ENTRY. DO YOU RECALL THE CONVERSATION THAT YOU HAD WITH THE
13 SON AND DAUGHTER ON THAT DAY?
14 A. SOMEWHAT. I CAN'T REMEMBER EVERYTHING THAT WAS SAID BUT
15 I REMEMBER THAT OCCURRING.
16 Q. AND IN SUBSTANCE WOULD YOU TELL US, PLEASE, WHAT YOU
17 RECALL?
18 MR. WILSON: I'M GOING TO OBJECT, YOUR HONOR. IT'S
19 HEARSAY.
20 THE COURT: OVERRULED.
21 MR. STIRBA: THANK YOU.
22 THE WITNESS: WELL, IN GENERAL TERMS I REMEMBER --
23 I REMEMBER COMING IN AND SHE WAS EXTREMELY ILL. SHE WAS
24 THROWING UP A LOT OF BLOOD. AND SO I MET WITH -- I'M SURE
25 MERLIN WAS THERE. I DON'T KNOW. I CAN'T REMEMBER WHO ELSE.
3775
1 BUT I TOLD THEM, YOU KNOW, SHE LOOKS VERY, VERY ILL AGAIN.
2 I BELIEVE I TOLD THEM THAT WE COULD KEEP HER COMFORTABLE. I
3 THINK I SAID, IF YOU WANT, YOU KNOW, THERE IS I.C.U. DOWN
4 THE HALL, BUT IT'S UP TO YOU. AND APPARENTLY FROM MY NOTE
5 HE SAID NO, KEEP HER COMFORTABLE AND NO EXTRAORDINARY
6 MEASURES.
7 Q. (BY MR. STIRBA) AND BY KEEPING HER COMFORTABLE, WHAT
8 DO YOU MEAN IN THE CONTEXT OF THIS NOTE?
9 A. NURSING CARE, BUT DISCONTINUING MEDICATIONS AND INVASIVE
10 TECHNIQUES. NO I.V.'S AND SUCH. CERTAINLY NO RESPIRATORS
11 OR C.P.R. AND MEDICATIONS TO KEEP HER COMFORTABLE, NAMELY
12 MORPHINE.
13 Q. NOW, YOU REFER TO IN THIS NOTE, SHE HAD COFFEE GROUNDS
14 VOMITUS. DO YOU SEE THAT?
15 A. RIGHT.
16 Q. AND WHAT IS THAT DIAGNOSTIC OF?
17 A. A G.I. BLEED INTO THE STOMACH. IN THE STOMACH YOU'VE
18 GOT ACID. WHEN THE BLOOD HITS THE ACID AND IT TURNS INTO
19 SORT OF A SLURRY THAT LOOKS LIKE COFFEE GROUNDS, IT'S REAL
20 DIAGNOSTIC OF A G.I. BLEED IN THE UPPER G.I.
21 Q. AND YOU HAVE, STOMACH IS DISTENDED. WHAT IS THE
22 SIGNIFICANCE OF YOU STATING THAT?
23 A. G.I. BLEED. SO SIGN AND SYMPTOMS.
24 Q. WHAT DOES DISTENDED MEAN?
25 A. SWOLLEN.
3776
1 Q. NOW, THE NEXT NOTE WHICH IS ON DECEMBER 31ST, WOULD YOU
2 READ THAT IN ITS ENTIRETY, PLEASE?
3 A. OKAY. UNRESPONSIVE. PERIOD. MELENA DURING THE NIGHT.
4 BLOOD PRESSURE FLUCTUATES AND IS LOW GENERALLY. TAKING NO
5 ORAL FOODS OR NOURISHMENT. IS RECEIVING ORAL CARE. I SPOKE
6 WITH HER SON BY TELEPHONE THIS MORNING AND AM MEETING WITH
7 SON AND DAUGHTER SOON. AFEBRILE. ASSESSMENT: G.I. BLEED,
8 LOW BLOOD PRESSURE, UNRESPONSIVE. PLAN: CONTINUE COMFORT
9 CARE, AND IT'S SIGNED.
10 Q. NOW, DID YOU HAVE, BASED ON THE CONVERSATION ON THE 30TH
11 AND THE CONVERSATION ON THE 31ST, DID YOU HAVE AN
12 UNDERSTANDING OF WHAT THE FAMILY WISHES WERE AT THAT TIME?
13 MR. WILSON: OBJECTION.
14 THE WITNESS: YES. YES.
15 THE COURT: WHAT'S THE GROUNDS OF THE OBJECTION?
16 MR. WILSON: THE OBJECTION IS HEARSAY, YOUR HONOR.
17 THE COURT: OVERRULED.
18 Q. (BY MR. STIRBA) AND WHAT DID YOU UNDERSTAND THEIR
19 WISHES TO BE?
20 A. THAT THEIR MOTHER BE KEPT COMFORTABLE AND THAT SHE BE
21 ALLOWED TO DIE A DIGNIFIED DEATH WITHOUT ANY SUFFERING.
22 Q. NOW, AT THAT POINT DID YOU -- WERE YOU ABLE TO MAKE AN
23 ASSESSMENT OF HER CONDITION?
24 A. YES.
25 Q. AND WHAT DID YOU BELIEVE HER CONDITION TO HAVE BEEN?
3777
1 A. WELL, GRAVELY ILL AND DYING ON THE 31ST.
2 Q. NOW, MERLIN LARSEN TESTIFIED ABOUT A CONVERSATION AFTER
3 CHRISTMAS. DO YOU REMEMBER THAT TESTIMONY?
4 A. THERE'S BEEN A LOT OF TESTIMONY. CAN YOU HELP ME A
5 LITTLE.
6 Q. OKAY. DO YOU RECALL A CONVERSATION WITH MERLIN LARSEN
7 AFTER CHRISTMAS?
8 A. WELL, IT'S ALL IN MY NOTES HERE. WE WERE TALKING AT
9 THAT POINT MORE TOWARD THE END OF THE YEAR. ARE YOU TALKING
10 ABOUT THE 30TH AND 31ST OR RIGHT AFTER CHRISTMAS?
11 Q. RIGHT AFTER CHRISTMAS WHEN IT WOULD HAVE BEEN YOU AND
12 MR. LARSEN.
13 A. WELL, I'M SORRY, BUT I DON'T REMEMBER THAT WELL. I
14 DON'T HAVE, YOU KNOW, INDEPENDENT RECOLLECTION OUTSIDE OF
15 THESE NOTES OF TALKING WITH HIM AT THAT POINT.
16 Q. DO YOU HAVE A RECOLLECTION OF TALKING WITH HIM ALONE
17 ABOUT RELOCATING HIS MOTHER?
18 A. THAT WOULD BE, I THINK, MORE TOWARD THIS POINT, 30TH OR
19 SO. YES, I DO.
20 Q. AND DO YOU RECALL WHERE THAT CONVERSATION TOOK PLACE?
21 A. IT WAS ON THE UNIT. I'M NOT SURE IF IT WAS IN HER ROOM
22 OR AROUND THE NURSES' STATION. I DON'T RECALL THAT.
23 Q. AND WAS ANYONE ELSE PRESENT?
24 A. I DON'T REMEMBER.
25 Q. AND WHAT WAS SAID BY HIM AND WHAT WAS SAID BY YOU AT
3778
1 THAT TIME?
2 MR. WILSON: I WOULD OBJECT AGAIN AS TO HEARSAY BY
3 MR. LARSEN, YOUR HONOR.
4 THE COURT: OVERRULED.
5 THE WITNESS: WELL, LIKE I SAID BEFORE, HE WAS REAL
6 CONCERNED THAT SHE WAS -- HE WAS UPSET THAT HE HAD BEEN TOLD
7 BY SOMEBODY THAT WE WOULD HAVE TO MOVE HER. THOSE WERE THE
8 RULES. AND HE DIDN'T KNOW WHERE HE WAS GOING TO GO OR WHERE
9 HE'D TAKE HER. AND I SAID, WE'LL KEEP HER AND LET HER STAY
10 HERE AND KIND OF BEND THE RULES A BIT.
11 Q. (BY MR. STIRBA) AND I WANT YOU TO TELL US, PLEASE,
12 THEN WHY JUDITH LARSEN WAS NOT MOVED FROM THE GEROPSYCH UNIT
13 BEFORE SHE PASSED AWAY.
14 A. WELL, THE FAMILY WAS UPSET. I KNEW THAT WE'RE A
15 HOSPITAL, THAT WE HAVE NURSING STAFF. WE CAN TAKE CARE OF
16 THIS PROBLEM. I'VE SEEN A LOT OF PEOPLE DIE IN THE HOSPITAL
17 WITH CANCER OR WHATEVER AND SAT WITH THEM AND TALKED WITH
18 THEM DURING THAT TIME, PEOPLE WHO WEREN'T DEMENTED. YOU
19 KNOW, IT'S A PERFECTLY APPROPRIATE PLACE. AND IT WAS MY
20 JUDGMENT THAT WE COULD HELP THE FAMILY AND THE PATIENT, AND
21 MOVING THEM IS OFTEN VERY TRAUMATIC, YOU KNOW, WHEN SHE'S AT
22 THAT STATE OF BEDFAST AND VERY SICK. HAVING TO PUT SOMEONE
23 IN AN AMBULANCE AND MOVE THEM SOMEWHERE ELSE ISN'T AN EASY
24 THING. I JUST THOUGHT IT WAS THE RIGHT THING TO DO.
25 Q. NOW, DID THERE COME A TIME WHEN YOU ORDERED THAT PATIENT
3779
1 JUDITH LARSEN RECEIVE MORPHINE AROUND THE CLOCK?
2 A. YES.
3 Q. AND FEEL FREE TO REFER TO THE BINDER, IF YOU NEED TO,
4 BUT --
5 A. I ALREADY HAVE.
6 Q. -- DO YOU REMEMBER WHEN YOU DID THAT?
7 A. THE 30TH.
8 Q. AND WHY WAS IT DONE AROUND THE CLOCK?
9 A. WELL, SHE WAS OBVIOUSLY DYING AND THERE WAS NOTHING WE
10 WERE GOING TO BE ABLE TO DO TO PREVENT THAT AND I WANTED HER
11 TO BE COMFORTABLE. IT'S CLEAR AS CAN BE THAT IF YOU GIVE
12 PEOPLE A P.R.N. DOSAGE --
13 MR. WILSON: OBJECTION, YOUR HONOR. IT'S
14 NON-RESPONSIVE.
15 THE COURT: REPHRASE THE QUESTION.
16 MR. STIRBA: I WILL, JUDGE.
17 Q. IN REFERENCE TO A P.R.N. ORDER, WHY WAS THE DOSING
18 AROUND THE CLOCK DESIRABLE FROM YOUR POINT OF VIEW?
19 A. I WAS CONTRASTING AROUND THE CLOCK TO A P.R.N. IF YOU
20 PUT DOWN P.R.N. AND THE PATIENT HAS TO START SCREAMING OR
21 SHOWING SOME SIGN OF PAIN, YOU KNOW THE PAIN IS OUT OF
22 CONTROL. IF YOU JUST PICK A RATIONAL DOSE AND GIVE IT AT
23 INTERVALS WHERE THERE WILL BE NO BIG PEAKS AND TROUGHS OF
24 THE MEDICATION LEVELS IN THE BLOOD, YOU GET GOOD CONTROL OF
25 THE PAIN AND THE PATIENT DOESN'T HAVE TO SUFFER.
3780
1 Q. WAS THE -- WAS THE MORPHINE ORDERED BY YOU BEFORE OR
2 AFTER THE CONVERSATION WITH THE FAMILY?
3 A. I TALKED WITH THE FAMILY BY THEN. IT WAS AFTER. THE
4 MORPHINE WAS ORDERED AFTER I TALKED WITH THE FAMILY.
5 Q. WERE YOU AWARE AT THIS TIME WHEN YOU ORDERED THE
6 MORPHINE OF CERTAIN WRITTEN DIRECTIVES?
7 A. ON MISS LARSEN? YES.
8 Q. AND TELL US HOW YOU WERE AWARE OF THEM?
9 A. THEY ARE IN THE CHART. AND I CAN'T REMEMBER, YOU KNOW,
10 INDEPENDENTLY DOING THIS, BUT I WOULD HAVE LOOKED IN THE
11 CHART BEFORE TALKING WITH THE FAMILY TO KIND OF FIGURE OUT
12 WHAT WAS GOING ON THERE.
13 Q. DID THE -- DID THE DIRECTIVES, THE WRITTEN DIRECTIVES,
14 DID THEY PLAY A ROLE IN YOUR DECISION-MAKING IN TERMS OF
15 WHAT YOU THOUGHT WAS APPROPRIATE TREATMENT ON DECEMBER 30TH?
16 A. WELL, YES, THEY DID. SHE'D HAD A G.I. BLEED AND SAID NO
17 I.V., SO COULDN'T GIVE HER BLOOD OR FLUIDS. AND IT'S
18 BASICALLY TYING MY HANDS AND MY ABILITY TO TRY AND REVIVE
19 HER. SO I BASICALLY GOT A DYING PATIENT AND IT'S MY DUTY TO
20 TRY AND HELP THERE WITH SUFFERING.
21 Q. FROM THE 30TH UNTIL HER DEATH ON THE 3RD, CAN YOU
22 CHARACTERIZE HER CONDITION DURING THAT TIME PERIOD?
23 A. WELL, SHE WAS VERY VERY ILL. SHE WAS SEDATED. AT TIMES
24 SHE WOULD HAVE SOME BREAK-THROUGH PAIN, BUT GENERALLY SHE
25 WASN'T IN HUGE SUFFERING. SHE BECAME MORE AND MORE
3781
1 DEHYDRATED BECAUSE SHE WASN'T TAKING FLUIDS. IS THAT --
2 Q. AND IN TERMS OF HER CONDITION, DID IT CHANGE MATERIALLY
3 DURING THIS TIME PERIOD FROM THE 30TH TO THE 3RD?
4 A. WELL, SHE JUST GOT SICKER AND SICKER, AND THEN ON THE
5 3RD SHE DIED. THAT'S A PRETTY BIG CHANGE, I THINK.
6 Q. WAS SHE EATING DURING THIS TIME PERIOD?
7 A. NO.
8 Q. WAS SHE TAKING FLUIDS?
9 A. IF ANY, VERY LITTLE.
10 Q. WAS SHE GIVEN AN I.V.?
11 A. NO.
12 Q. AND TELL US WHY SHE WASN'T GIVEN AN I.V.?
13 A. MEDICAL TREATMENT PLAN SAID NO I.V.
14 Q. AS HER ATTENDING PHYSICIAN, AFTER YOU CONCLUDED THAT SHE
15 WAS DYING, DID YOU BELIEVE YOU HAD SOME OBLIGATION TO HER AS
16 YOUR PATIENT?
17 A. ABSOLUTELY.
18 Q. AND WHAT OBLIGATION WAS THAT?
19 A. WELL, TO PROVIDE HER WITH A DIGNIFIED DEATH FREE OF ANY
20 PAIN.
21 Q. NOW, I WANT TO DIRECT YOUR ATTENTION TO -- THERE'S A
22 PROGRESS NOTE, I BELIEVE IT'S JANUARY 3RD, AND THERE'S ALSO
23 AN ORDER ON THAT DATE. WHY DON'T YOU TURN FIRST TO THE
24 PROGRESS NOTE, PLEASE?
25 A. OKAY.
3782
1 Q. AND IF YOU WOULD, PLEASE, READ THE PROGRESS NOTE ON
2 1/3/95 IN ITS ENTIRETY.
3 A. OKAY. DESPITE FIVE MILLIGRAMS OF INTRAMUSCULAR MORPHINE
4 AT 7:30 AND 9:30 IN THE MORNING PATIENT HAS NOT RESPONDED AT
5 ALL. EYES OPEN. GROANING. APPEARS IN SOME PAIN.
6 UNFORTUNATELY, NURSING STAFF HAD BEEN HOLDING MORPHINE FOR
7 LOW RESPIRATORY RATE. REMAINS UNRESPONSIVE TO ANY
8 QUESTIONS. VITAL SIGNS STABLE ACTUALLY AND SHE'S AFEBRILE.
9 ASSESSMENT: STABLE. PLAN: MORPHINE 25 MILLIGRAMS NOW
10 CONTINUED FIVE MILLIGRAMS EACH THREE HOURS P.R.N. AS NEEDED,
11 AND ROBERT WEITZEL.
12 Q. NOW, IF YOU WILL TURN TO THE PHYSICIAN'S ORDER SECTION
13 OF THE BINDER. YOU ENTERED AN ORDER ON THAT DATE. I WOULD
14 LIKE YOU TO READ THAT TO US IN ITS ENTIRETY AS WELL.
15 A. OKAY. THERE'S A BUNCH OF ORDERS BUT THE ONE ON THE TOP,
16 THE FIRST ONE THAT -- WELL, LET'S SEE. THERE IS A BUNCH OF
17 ORDERS THAT DAY.
18 Q. OKAY. LET ME SEE IF I CAN FIND IT IN ANOTHER BINDER AND
19 REFER YOU TO IT. IT WOULD BE THE ORDER ON JANUARY 3RD THAT
20 REFERS TO YOUR REQUEST TO BE CALLED.
21 A. OKAY. I'VE GOT THAT.
22 Q. DO YOU SEE THE ONE I'M REFERRING TO?
23 A. TOP OF THE PAGE ON 466.
24 Q. ONCE AGAIN, I MAY NOT HAVE IT TOTALLY IN FRONT OF ME.
25 WOULD YOU READ THAT, PLEASE?
3783
1 A. 1/3/95. I WRITE, IF AN M.S. OR IF A MORPHINE IS TO BE
2 WITHHELD, PLEASE CALL -- I'M SORRY -- IF ANY MORPHINE IS TO
3 BE WITHHELD, PLEASE CALL ME FIRST. ROBERT WEITZEL.
4 Q. NOW, TELL US, PLEASE, DOES THAT ORDER HAVE A
5 RELATIONSHIP TO THE PROGRESS NOTE THAT YOU JUST READ OF THE
6 SAME DATE?
7 A. YES.
8 Q. AND TELL US WHAT THE RELATIONSHIP IS.
9 A. WELL, LET ME GO BACK TO THE PROGRESS NOTE.
10 UNFORTUNATELY, NURSING STAFF HAS BEEN HOLDING MORPHINE FOR
11 LOW RESPIRATORY RATE. I WANTED THE NURSES TO CALL ME IF
12 THEY WERE GOING TO HOLD THE MEDICATION SO WE COULD TALK
13 ABOUT IT. I WANTED TO BE KEPT INFORMED. ALL NIGHT LONG
14 THEY HAD BEEN HOLDING IT. NOBODY CALLED ME THAT NIGHT AND I
15 WAS PRETTY CONCERNED ABOUT THE STATE THE PATIENT WAS IN WHEN
16 I GOT THERE.
17 Q. AND YOU ARE GOING TO HAVE TO DESCRIBE THE NATURE OF YOUR
18 CONCERN AT THIS POINT IN TERMS OF THIS PATIENT.
19 A. OKAY. WELL, THE NURSE THAT WAS ON THAT NIGHT HAD ONLY
20 BEEN NURSING FOR A YEAR, SO IT'S SOMEWHAT UNDERSTANDABLE,
21 BUT THIS LADY HAD BEEN ON MORPHINE FOR DAYS. SHE WAS DYING.
22 SHE'D BEEN ON A REGULAR AMOUNT AND SHE'D ACTUALLY HAD SOME
23 P.R.N.'S GIVEN BY THE NURSES AND I THINK MAYBE AN HOUR OR
24 TWO BECAUSE OF BREAK-THROUGH PAIN. TO JUST COMPLETELY STOP
25 THE MORPHINE FOR MANY, MANY HOURS I THOUGHT WAS A REAL BAD
3784
1 MISTAKE BECAUSE WHEN I CAME IN, SHE WAS EYES OPEN, GROANING,
2 APPEARS IN PAIN. AND WE'D HAD CONTROL OF THE PAIN. NOW
3 WE'RE IN A SITUATION WHERE IT'S OUT OF CONTROL. I HAD JUST
4 WISHED THAT THEY CALLED ME AND I COULD HAVE SAID, WELL,
5 OKAY, IT'S LOW. WHY DON'T WE USE TWO AT THIS POINT OR LET'S
6 GET MORE FLEXIBLE WITH THE SCHEDULE, BUT LET'S NOT JUST HOLD
7 IT COMPLETELY FOR -- I THINK IT WAS LIKE 12 HOURS OR TEN
8 HOURS AT LEAST.
9 Q. NOW, GIVEN WHAT YOU SAW THAT MORNING, DID YOU CHANGE HER
10 MEDICATIONS THAT DAY?
11 A. WE CONTINUED THE ROUTINE FIVE MILLIGRAMS EVERY THREE
12 HOURS, BUT I HAD TO ADD A LOT OF NOW ORDERS THAT DAY.
13 Q. AND WHY DID YOU HAVE TO ADD A LOT OF NOW ORDERS THAT
14 DAY?
15 A. SHE WAS IN PAIN.
16 Q. AND DID THAT HAVE ANY RELATIONSHIP TO THE FACT THAT SHE
17 HAD NOT RECEIVED ANY MORPHINE FROM APPROXIMATELY 6:30 IN THE
18 EVENING BEFORE?
19 A. YES, IT DID.
20 Q. AND EXPLAIN THAT TO US, PLEASE?
21 A. WELL, IN TWO MAJOR WAYS. SHE HAD BEEN ON A REGULAR DOSE
22 OF MORPHINE FOR DAYS, SO SHE'S GETTING TOLERANT TO IT.
23 SHE'S -- HER BODY SORT OF IS EXPECTING THE MORPHINE. THEN
24 TO HOLD IT LIKE THAT, THE PAIN IS NOW OUT OF CONTROL. WE
25 HAVE NO CONTROL OF THAT PAIN. AND IT'S CLEAR THAT IT TAKES
3785
1 A LOT MORE TO GET IT IN CONTROL. SO BASICALLY THEY SET HER
2 UP FOR A SITUATION WHERE SHE'S GOING TO NEED A LOT OF
3 MORPHINE JUST TO GET IT UNDER CONTROL.
4 Q. NOW, IN REVIEWING THE MEDICATION RECORD FOR THAT DAY,
5 THE 3RD, DO YOU RECALL THE CIRCUMSTANCES IN WHICH YOU WERE
6 PROVIDING OR ORDERING NOW ORDERS THAT DAY?
7 A. WELL, I WAS THERE IN THE MORNING AND WROTE SOME ORDERS.
8 LET'S SEE. ONE AT -- LOOKS LIKE IT WAS PROBABLY TEN. AND I
9 CAN'T REALLY READ THIS CHART. IT'S KIND OF A BAD COPY. BUT
10 THEN ANOTHER ONE AT 11. AND THEN CALLED IN ORDERS AT 2:45,
11 AND 6:20.
12 Q. AND IN TERMS OF THOSE CALL-IN ORDERS, DO YOU RECALL THE
13 COMMUNICATION YOU WERE HAVING WITH THE NURSING STAFF AT THAT
14 TIME?
15 A. I'D CALL AND SAY, HOW'S SHE DOING OR MAYBE THEY PAGED
16 ME. I CAN'T TELL FROM THESE NOTES WHICH HAPPENED. BUT WE
17 TALK ABOUT WHAT WAS HAPPENING AND WHAT SORT OF SIGNS SHE WAS
18 SHOWING AND THAT'S WHEN I'D ORDERED EXTRA MORPHINE.
19 Q. NOW, DO YOU RECALL A STAFF MEETING WHERE THIS SUBJECT
20 CAME UP?
21 A. I DO.
22 Q. AND DO YOU RECALL WHEN THAT WOULD HAVE BEEN IN
23 RELATIONSHIP TO THE 3RD OF JANUARY?
24 A. IT WAS AFTERWARDS. WE HAD REGULAR STAFF MEETINGS AT THE
25 UNIT EITHER ONCE A WEEK OR TWICE A WEEK.
3786
1 Q. AND DO YOU KNOW WHO WAS PRESENT?
2 A. WELL, ABOUT HALF THE STAFF. THE NURSES WERE THERE.
3 SOCIAL WORKERS. THE PROGRAM MANAGER WOULD HAVE BEEN THERE.
4 MYSELF.
5 Q. AND DO YOU RECALL WHAT WAS SAID IN RELATIONSHIP TO THIS
6 CIRCUMSTANCE THAT YOU'VE JUST DESCRIBED?
7 A. YES.
8 Q. AND TELL US WHAT WAS SAID AND BY WHOM.
9 A. WELL, I SAID THAT I WAS CONCERNED ABOUT THIS HAVING
10 HAPPENED AND IN THE FUTURE I'D LIKE TO BE CALLED IF THAT
11 SORT OF THING HAPPENED.
12 Q. WHY WAS THAT IMPORTANT TO YOU?
13 A. WELL, IT'S MY PATIENT. AND WHEN I COME IN THERE AND
14 THEY ARE IN PAIN THERE'S REALLY NO GOOD REASON FOR THAT, I
15 WANTED TO EXPLAIN TO THE STAFF THE WAY PAIN CONTROL WORKS.
16 I DIDN'T WANT IT TO HAPPEN AGAIN.
17 THE COURT: MR. STIRBA, I THINK WE'VE BEEN GOING
18 ABOUT OVER AN HOUR. LET'S TAKE A MORNING BREAK, LADIES AND
19 GENTLEMEN. AT THIS TIME IT'S YOUR DUTY NOT TO CONVERSE
20 AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO
21 BE ADDRESSED BY ANY OTHER PERSON ON THE SUBJECT OF THIS
22 TRIAL. AND IT IS YOUR DUTY NOT TO FORM OR EXPRESS AN
23 OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO YOU AFTER
24 YOU'VE HEARD ALL OF THE EVIDENCE. SO WE'LL COME BACK AT TEN
25 MINUTES TO TEN.
3787
1 (COURT IN RECESS.)
2 THE COURT: PLEASE BE SEATED. THE RECORD WILL
3 REFLECT THAT THE JURY HAS RETURNED. AND I THINK I WOULD
4 JUST LIKE TO MAKE A STATEMENT TOO THAT PREVIOUSLY BEFORE THE
5 TRIAL STARTED WE HAD A DECORUM ORDER AND THE DECORUM ORDER
6 BASICALLY STATES THAT PEOPLE, TO PREVENT THEM FROM JUST
7 WALKING IN AND OUT, EVEN THOUGH THE DECORUM ORDER SAYS WE'LL
8 LOCK THE DOOR AFTER A SESSION BEGINS, WE HAVEN'T LOCKED THE
9 DOOR IN THE PAST BUT IF PEOPLE KEEP COMING IN AND OUT, THE
10 DECORUM SAYS THAT ONCE YOU LEAVE YOU NEED TO STAY OUT TILL
11 THE BREAK. OBVIOUSLY IF YOU HAVE A MEDICAL EMERGENCY OR
12 SOME OTHER PROBLEM, YOU CAN DO THAT. BUT PLEASE, LET'S TRY
13 TO KEEP -- IF YOU COME INTO THE COURTROOM JUST STAY IN THE
14 COURTROOM. IF YOU GO OUT, MAYBE JUST STAY OUT TILL THE NEXT
15 BREAK. OKAY, MR. STIRBA. YOU LIKE TO CONTINUE.
16 Q. (BY MR. STIRBA) AFTER JUDITH LARSEN PASSED AWAY AND
17 BEFORE THE PROCEEDINGS IN THIS MATTER, DID YOU HAVE ANY
18 COMMUNICATION AGAIN FROM ANYONE IN THE LARSEN FAMILY?
19 A. YES.
20 Q. AND WOULD YOU TELL US WHAT THAT COMMUNICATION WAS?
21 A. I RECEIVED A REALLY NICE CARD AT MY OFFICE FROM
22 MR. LARSEN AND HIS FAMILY THANKING ME AND THE UNIT FOR WHAT
23 WE PROVIDED HERE.
24 Q. I WOULD LIKE TO TURN YOU NOW TO ANOTHER BINDER WITH
25 PATIENT MARY CRANE. IF YOU COULD PULL THAT OUT, PLEASE. DO
3788
1 YOU HAVE THAT IN FRONT OF YOU?
2 A. RIGHT HERE.
3 Q. WHAT DO YOU REMEMBER ABOUT MARY CRANE?
4 A. I REMEMBER HOW SICK SHE WAS WHEN SHE CAME IN. BITS AND
5 DETAILS OF HER INPATIENT OF THE HOSPITALIZATION, WHAT WENT
6 ON. WITHOUT LOOKING AT THIS, YOU KNOW, AFTER MANY YEARS I
7 DON'T REMEMBER A LOT.
8 Q. WHY DON'T YOU, IF YOU NEED TO LOOK AT THAT, TELL US WHAT
9 YOUR ASSESSMENT WAS OF PATIENT MARY CRANE, HER CONDITION ON
10 ADMISSION?
11 A. WELL, I DON'T NEED TO LOOK AT IT FOR THAT. SHE HAD HAD
12 A STROKE IN 1990 AND PROBABLY HAD HAD OTHER STROKES SINCE
13 THEN AND WAS -- SMALLER STROKES -- AND WAS QUITE DEMENTED.
14 SHE WAS VERY ILL MEDICALLY IN THAT SHE HAD THE PSYCHOGENIC
15 POLYDIPSIA AND CHRONIC LOW SODIUM. SHE ALSO HAD PROBABLY
16 MULTI-INFARCT DEMENTIA, MEANING SHE HAD A LOT OF LITTLE
17 STROKES IN ADDITION TO THE BIG ONE IN '90. SHE HAD BACK
18 SURGERY WITH CHRONIC LOW BACK PAIN AND SHE HAD DIABETES AND
19 SHE WAS ALSO BEING TREATED FOR SEIZURE DISORDER.
20 Q. WHAT KIND OF BEHAVIOR WAS SHE EXHIBITING THAT RESULTED
21 IN HER ADMISSION?
22 A. WELL, SHE WAS VERY AGGRESSIVE WITH OTHER PATIENTS AND
23 THE STAFF WHERE SHE HAD BEEN STAYING; HITTING, VERBALLY
24 ABUSIVE, RUNNING INTO OTHERS WITH HER WHEELCHAIR, SCREAMING
25 AND ALSO THE POLYDIPSIA THING WAS SO BAD. WHAT YOU DO WITH
3789
1 THAT, YOUR FIRST STEP IS TO JUST TRY AND RESTRICT FLUIDS.
2 SHE -- APPARENTLY SHE WAS REPORTED TO BE DRINKING OUT OF
3 TOILETS AND SUCH.
4 Q. WAS SHE JUST LOUD UPON ADMISSION?
5 A. NO, MUCH MORE THAN THAT.
6 Q. NOW, I THINK IT INDICATES IN YOUR EVALUATION THAT YOU
7 STARTED HER ON RISPERDAL AND SERZONE.
8 A. I DID.
9 Q. AND WOULD YOU TELL US WHY, PLEASE?
10 A. ONCE AGAIN, RISPERDAL IS A GOOD ANTIPSYCHOTIC, LOW IN
11 SIDE EFFECTS, AND SERZONE IS A GOOD ANTIDEPRESSANT, ALSO LOW
12 ON SIDE EFFECTS. I WANTED HER MOOD TO IMPROVE. I WANTED
13 HER TO CALM DOWN SOME. AND I HOPED THAT HER BEHAVIOR WOULD
14 BECOME LESS PSYCHOTIC. I HAVEN'T DEFINED THAT. TO ME
15 PSYCHOTIC MEANS OUT OF TOUCH WITH REALITY. THAT'S THE
16 PURPOSE OF DRUGS LIKE RISPERDAL AND HALDOL.
17 Q. DO YOU -- DID YOU PRESCRIBE TRAZODONE FOR HER AS WELL?
18 A. YES.
19 Q. WOULD YOU TELL US WHY YOU DID THAT?
20 A. CALM HER DOWN AND HELP HER SLEEP.
21 Q. DID YOU PRESCRIBE TRAZODONE AND SERZONE IN COMBINATION
22 AS WELL?
23 A. YES.
24 Q. AND WOULD YOU TELL US, PLEASE -- FIRST OF ALL, IS THERE
25 A DIFFERENCE IN YOUR MIND BETWEEN THE DRUG TRAZODONE AND THE
3790
1 DRUG SERZONE?
2 A. YES, THERE IS.
3 Q. AND TELL US WHAT THAT DIFFERENCE IS.
4 A. WELL, THEY ARE IN THE SAME CLASS BUT THEY ARE COMPLETELY
5 DIFFERENT CHEMICALS AND THEY HAVE DIFFERENT ACTIONS ON THE
6 BRAIN. AS I SAID, TRAZODONE IS REALLY SEDATING, BUT IT IS
7 AN ANTIDEPRESSANT. SERZONE IS ANTIDEPRESSANT ALSO, MUCH
8 LESS SEDATING.
9 Q. AND WHY WOULD YOU PRESCRIBE THEM IN COMBINATION SUCH AS
10 WITH PATIENT MARY CRANE?
11 A. THEY WERE GIVEN AT DIFFERENT TIMES OF DAY. SERZONE
12 WOULD HAVE BEEN GIVEN B.I.D. TWICE A DAY, MEANING MORNING
13 AND PROBABLY EARLY EVENING. AND TRAZODONE WOULD BE AT
14 BEDTIME. SO YOU WOULD GET SORT OF AN ANTIDEPRESSANT EFFECT
15 OUT OF EACH OF THEM, BUT MOST OF THE SEDATION AT BEDTIME AND
16 THAT WOULD AID WITH SLEEP.
17 Q. DID YOU GIVE MARY CRANE ANY PAIN MEDICATIONS?
18 A. YES.
19 Q. AND WHAT WOULD THAT HAVE BEEN?
20 A. SHE WAS FIRST STARTED ON DURAGESIC.
21 Q. AND DESCRIBE FOR US WHY YOU ORDERED A DURAGESIC FOR HER?
22 A. WELL, SHE HAD BEEN ON OPIATES FOR YEARS. APPARENTLY IN
23 GOING BACK AND LOOKING AT THE RECORDS, SHE HAD THOUSANDS OF
24 DOSES OF LORTAB OR CODEINE OR DARVOCET. AND SHE WAS
25 CONTINUALLY COMPLAINING OF PAIN. AND I TOOK IT SERIOUSLY
3791
1 AND THOUGHT, LET'S GIVE HER SOMETHING FOR THIS, SOMETHING
2 THAT WILL BE AROUND THE CLOCK TYPE DOSAGE FORM, AND I
3 THOUGHT A DURAGESIC.
4 Q. WHY DID YOU THINK THAT A DURAGESIC PATCH WAS THE MOST
5 APPROPRIATE WAY TO ADDRESS HER PAIN AS YOU DID?
6 A. IT'S PROBABLY THE SIMPLEST FORM TO MAKE SURE THAT THEY
7 GET ADEQUATE PAIN CONTROL ALL THE TIME. NO PILLS. NO
8 SHOTS. NO I.V. NECESSARY. JUST A PATCH APPLIED TO THE SKIN
9 EVERY THREE DAYS. I TALKED WITH A PHARMACIST AT THE
10 HOSPITAL. I HADN'T USED--
11 MR. WILSON: OBJECTION, YOUR HONOR, AS FAR AS
12 ANYTHING THE PHARMACIST MIGHT HAVE BEEN SAID.
13 THE COURT: SUSTAINED.
14 Q. (BY MR. STIRBA) THE RECORDS INDICATE INITIALLY I THINK
15 YOU ORDERED A 25 MICROGRAM DURAGESIC PATCH WHICH YOU CHANGED
16 THE SAME DAY TO 50 MICROGRAMS.
17 A. THAT'S CORRECT.
18 Q. WOULD YOU TELL US, PLEASE, WHY YOU DID THAT?
19 A. WELL, I CALLED THE PHARMACIST AND ASKED. I LOOKED IT UP
20 ALSO TO SEE THE STRENGTH AND HOW IT WOULD RELATE TO, SAY,
21 MORPHINE WHICH IS YOUR GOLD STANDARD WHICH EVERYTHING ELSE
22 IS COMPARED TO. AND IT LOOKED TO ME, GIVEN THE PREVIOUS
23 OPIATES SHE HAD BEEN ON AND THE AMOUNT OF PAIN SHE WAS
24 COMPLAINING OF, THAT 50 MICROGRAMS WOULD BE APPROPRIATE.
25 Q. I WANT YOU TO TURN TO YOUR PSYCH EVALUATION IN THE
3792
1 BINDER, PLEASE.
2 A. OKAY.
3 Q. AND SPECIFICALLY PAGE 233.
4 A. OKAY.
5 Q. AND YOU USE THE WORD "HOPE" IN THAT PARAGRAPH. DO YOU
6 SEE THAT?
7 A. YES.
8 Q. AND PERHAPS MAYBE YOU CAN READ THAT SENTENCE TO US FULLY
9 SO WE UNDERSTAND THE CONTEXT?
10 A. WELL, GOT TO READ THE PARAGRAPH. PATIENT WAS STARTED ON
11 SERZONE AND RISPERDAL TO TREAT HER DEPRESSION AND PSYCHOTIC
12 FEATURES. SHE'S ALSO BEEN ON TRAZODONE FOR SLEEP. I'LL
13 GIVE HER A DURAGESIC PATCH IN A LOWER DOSE FOR HER PAIN.
14 GIVEN HER DEMENTIA AND GENERAL MEDICAL CONDITION I HAVE VERY
15 LITTLE FEAR OF NEGATIVE CONSEQUENCES OF ANY ADDICTION.
16 WE'LL SET FIRM LIMITS ON HER NEGATIVE AND AGGRESSIVE
17 BEHAVIORS AND HOPE THAT IN TWO OR THREE WEEKS SHE'LL
18 IMPROVE.
19 Q. WAS THERE A SIGNIFICANCE TO THE FACT THAT YOU USE THE
20 WORD "HOPE" THERE?
21 A. YES.
22 Q. AND TELL US WHAT SIGNIFICANCE THAT WAS.
23 A. WHEN THE PATIENTS CAME IN, I COULD ONLY HOPE THAT WE
24 COULD GET THEM WELL. AND WE WOULD -- WE WOULDN'T KNOW THEM
25 AT ALL WHEN THEY GOT THERE, AND WE HAD TO TRY AND GATHER
3793
1 DATA AND FIGURE OUT WHAT WAS GOING ON AND WORK WITH THEM AND
2 TRY DIFFERENT MEDICATIONS AND HOPE THAT WE COULD HELP. OUR
3 LENGTH OF STAY TENDED TO BE TWO OR THREE WEEKS, AND I HAD
4 HOPED THAT BY THAT TIME SHE WOULD IMPROVE AND BE ABLE TO GO
5 HOME.
6 Q. HOW WOULD YOU CHARACTERIZE HER PROGRESS IN THE HOSPITAL?
7 A. WELL, SHE WASN'T THERE LONG. AND SHE GOT QUITE SICK AND
8 SHE DIDN'T DO WELL AT THAT POINT.
9 Q. AND WHAT WAS THE SOURCE OF HER GETTING SICK?
10 A. BEST I CAN TELL SHE DID HAVE SEPSIS, DEHYDRATION. AND
11 USUALLY ALL DATED SODIUM. SHE GOT INFECTED.
12 Q. AND DO YOU RECALL THE REASON WHY SHE BECAME INFECTED?
13 A. AT THE TIME I THOUGHT SHE MIGHT HAVE ASPIRATED AND HAD
14 PNEUMONIA, BUT BECAUSE OF THE CHEST X-RAYS WERE ALL NEGATIVE
15 FOR THAT, IT APPEARS THAT THE MOST LIKELY CULPRIT WOULD BE
16 URINARY TRACT INFECTION, WHICH SHE DID HAVE. SHE ALSO HAD
17 THE RECTAL/VAGINAL FISTULA WHICH WOULD -- FECES ARE
18 75 PERCENT BACTERIA. AND SHE HAD A GOOD REASON TO GET
19 INFECTED THERE.
20 Q. DID YOU TREAT THE URINARY TRACT INFECTION?
21 A. WHEN SHE CAME IN, SHE HAD A URINALYSIS THAT SHOWED
22 PYURIA, WHICH ARE WHITE CELLS IN THE URINE. I DID TREAT IT
23 AT THAT TIME WITH CIPRO.
24 Q. DID YOU HAVE ANY INVOLVEMENT IN TREATING THE FISTULA?
25 A. I DID.
3794
1 Q. AND WOULD YOU EXPLAIN FOR US WHAT YOUR INVOLVEMENT WAS?
2 A. THE FISTULA WAS REPORTED BY ONE OF THE NURSES WHO
3 NOTICED THAT THERE WERE FECES COMING OUT OF THE VAGINA. AT
4 THAT POINT WE GOT A GYNECOLOGICAL CONSULT. ACTUALLY
5 DR. DIENHART SAW HER FIRST. WE GOT A GYNECOLOGICAL CONSULT
6 AND DR. MEEKS ORDERED OR ACTUALLY SUGGESTED A LOW RESIDUE
7 DIET AND BROAD SPECTRUM ANTIBIOTIC, IF WE WEREN'T GOING TO
8 DO SURGERY RIGHT AWAY. I WAITED FOR DR. DIENHART TO DO
9 SOMETHING 'CAUSE HE WAS THE INTERNIST WHO WOULD KIND OF --
10 THERE'S NO CLEAR LINE AS TO WHO'S TO DO WHAT IN THAT KIND OF
11 PROBLEM. BUT I SUGGESTED THAT THE NURSE CALL HIM AND LET
12 HIM KNOW ABOUT THE CONSULT AND GIVE HIM MY NUMBER AND ALL.
13 BUT I DIDN'T HEAR FROM HIM SO FINALLY I ORDERED THE DIET AND
14 THE BROAD SPECTRUM ANTIBIOTIC KEFLEX.
15 Q. AND DO YOU RECALL WHEN YOU ORDERED THE BROAD SPECTRUM
16 ANTIBIOTICS?
17 A. ON THE 5TH.
18 Q. I WANT TO DIRECT YOUR ATTENTION TO THE 7TH OF JANUARY OF
19 1996. WERE YOU CONTACTED AT THAT POINT CONCERNING A
20 CONDITION WITH MARY CRANE?
21 A. I'M SURE I WAS.
22 Q. AND DO YOU RECALL SEEING HER ON THAT DAY?
23 A. YES.
24 Q. AND ABOUT WHAT TIME DID YOU SEE HER THAT DAY?
25 A. I THINK I WAS SEEING HER IN THE AFTERNOON INTO THE
3795
1 EVENING.
2 Q. AND DID YOU OBSERVE HER CONDITION ON THAT DAY?
3 A. YES.
4 Q. AND WHAT DID YOU THINK WAS GOING ON?
5 A. WELL, I SAW HER AND DR. DIENHART SAW HER BOTH. I
6 THOUGHT SHE WAS REALLY ILL AND I THOUGHT SHE WAS DYING.
7 Q. AND WHY DID YOU THINK SHE WAS DYING?
8 A. SHE APPEARED INFECTED. SHE HAD A FEVER. SHE HAD AN
9 ELEVATED WHITE COUNT. WE'D DONE A C.B.C. A COUPLE OF DAYS
10 BEFORE. IT WAS UP TO 15. SHE WAS APPARENTLY -- SHE
11 APPEARED VERY DEHYDRATED AND JUST LOOKED VERY SICK. SHE WAS
12 BASICALLY VERY ILL. HER TEMPERATURE WAS UP TO OVER 102.
13 SHE -- WE GOT A SODIUM THAT DAY. IT WAS 159. SHE HAD A
14 SEIZURE. HER OXYGEN SATURATIONS WERE RUNNING 70 TO 80.
15 EVERYTHING WAS LOOKING REALLY BAD.
16 Q. NOW, DID YOU CONSULT WITH DR. DIENHART ABOUT HER
17 CONDITION ON THAT DAY?
18 A. YES, I DID. WE TALKED.
19 Q. AND DO YOU RECALL, DID YOU TALK IN PERSON OR BY PHONE?
20 A. WE TALKED IN PERSON AT THE NURSES' STATION.
21 Q. AND DO YOU RECALL WHAT WAS SAID IN THAT CONVERSATION?
22 A. WELL, HE DID HIS OWN EXAM AND WE TALKED ABOUT THE WHOLE
23 SITUATION AND ALL THE DATA THAT WE HAD. HE TALKED ABOUT
24 THINGS HE COULD DO TO REVERSE IT. I POINTED OUT THAT THE
25 MEDICAL TREATMENT PLAN AND SUCH WOULD NOT ALLOW I.V.'S AND
3796
1 SUCH. AND BASICALLY HE SAID, WELL, I DON'T KNOW. I DON'T
2 THINK WE COULD -- EVEN WITH FULL AGGRESSIVE MEASURES,
3 THERE'S A GOOD CHANCE SHE'S DYING OF SEPSIS. SO, YOU KNOW,
4 I SAID I AGREE AND I'LL TALK TO THE FAMILY.
5 Q. IS SEPSIS A SERIOUS CONDITION?
6 A. VERY.
7 Q. AND WHY DO YOU SAY THAT?
8 A. WELL, EVEN IF IT'S TREATED PROBABLY HALF THE PEOPLE DIE
9 FROM IT. SEPSIS IS BLOOD INFECTION. BLOOD POISONING, IT'S
10 BEEN CALLED. AND IT'S A GOOD TERM BECAUSE BACTERIA PUT OUT
11 ALL KINDS OF TOXIC PRODUCTS. THEY CAN CAUSE RENAL SHUTDOWN,
12 THE KIDNEYS FAIL. CAN CAUSE ABRUPT LOSS OF ALL BLOOD
13 PRESSURE. EVEN WHEN TREATED FULLY WITH I.V. ANTIBIOTICS,
14 IT'S VERY DANGEROUS. AND I COULDN'T GIVE HER I.V.'S
15 Q. NOW DID THERE COME A POINT AFTER THAT CONVERSATION WHEN
16 YOU DID TALK TO HER FAMILY?
17 A. YES, THERE WAS.
18 Q. AND DO YOU RECALL WHO YOU TALKED WITH?
19 A. I TALKED WITH THE DAUGHTERS, AND IT WOULD HAVE BEEN THAT
20 EVENING.
21 Q. AND DO YOU RECALL APPROXIMATELY WHAT TIME YOU WOULD HAVE
22 TALKED WITH THEM?
23 A. EARLY EVENING.
24 Q. AND WHERE DID YOU TALK WITH THEM?
25 A. PRETTY SURE IT WAS IN HER ROOM.
3797
1 Q. AND WAS ANYONE ELSE PRESENT?
2 A. THERE WERE FAMILY MEMBERS THERE, BUT I'M NOT SURE WHO.
3 NURSES WERE IN AND OUT. I THINK THERE WAS ANOTHER PATIENT
4 IN THE ROOM.
5 Q. WHAT WAS THE PURPOSE OF MEETING WITH THE DAUGHTERS IN
6 THE ROOM AT THAT TIME?
7 A. TO EXPLAIN WHAT WAS GOING ON AND SPEND SOME TIME WITH
8 THEM AND MAKE A DECISION AS TO WHERE TO GO FROM THERE.
9 Q. AND TELL US WHAT YOU SAID AND WHAT WAS SAID TO YOU IN
10 THAT CONVERSATION.
11 A. I DON'T REMEMBER THE EXACT WORDS FIVE YEARS LATER, BUT I
12 TOLD THEM THAT SHE WAS REALLY SICK. PROBABLY WOULD HAVE
13 TOLD THEM BASICALLY WHAT I JUST TOLD YOU ABOUT THE DIFFERENT
14 SYMPTOMS AND THE LAB VALUES AND SUCH AND THAT I THOUGHT SHE
15 WAS PROBABLY DYING. THAT I COULD PROVIDE COMFORT CARE
16 DURING THAT.
17 Q. AND DID THEY RESPOND?
18 A. YES.
19 Q. AND WHAT DO YOU RECALL THE RESPONSE WAS?
20 A. SADNESS. THEY WERE UPSET AND THEY AGREED THAT THERE WAS
21 REALLY NOTHING TO BE DONE AND SEEMED THANKFUL THAT WE WOULD
22 PROVIDE COMFORT CARE.
23 Q. DID YOU DISCUSS WITH THEM AT THAT TIME THE USE OF ANY
24 MEDICATION OR PAIN MEDICATION?
25 A. ONE OF THE DAUGHTERS WAS A NURSE. I'M SURE I DID. I
3798
1 CAN'T REMEMBER WHAT EXACTLY WAS TALKED ABOUT, BUT I'M SURE
2 WE TALKED ABOUT WHAT COMFORT CARE MEANT, WHAT MEDICATION
3 WOULD BE USED.
4 Q. DO YOU RECALL IF YOU TOLD THEM THAT YOU WERE GOING TO
5 USE MORPHINE AS A COMFORT MEASURE?
6 A. WELL, NOT SPECIFICALLY, BUT I'M SURE I DID BECAUSE I'D
7 HAD A PREVIOUS EXPERIENCE WITH COMFORT CARE BEING GIVEN.
8 AND THAT'S WHAT I WAS COMFORTABLE WITH, MORPHINE.
9 Q. NOW, YOU MENTIONED SOME LIMITATIONS IN TERMS OF THE
10 MEDICAL TREATMENT PLAN. WHAT ARE YOU REFERRING TO?
11 A. THE PLAN IN THE CHART WHERE FAMILIES OR PATIENTS WOULD
12 FILL OUT A FORM SAYING IF -- WELL, BASICALLY ADVANCE
13 DIRECTIVES AS TO WHAT THEY WANTED DONE IF THEY WERE TO GET
14 ILL.
15 Q. HAD YOU REVIEWED THE MEDICAL TREATMENT PLAN OR THE
16 ADVANCE DIRECTIVES PRIOR TO TALKING TO THE FAMILY THAT
17 EVENING?
18 A. I'M SURE I WOULD HAVE.
19 Q. AND WHY WOULD YOU HAVE DONE THAT?
20 A. WELL, THIS PLAN WAS PROBABLY FILLED OUT WITH THE FAMILY
21 ON THE 28TH WITH EARLENE COZZENS 'CAUSE THAT'S THE WAY IT'S
22 DATED. AND THEN I SIGNED IT LATER. I -- THAT WAS KIND
23 OF -- THEY PUT THIS THING IN FRONT OF ME. I SIGNED IT. I
24 WOULD HAVE LOOKED AT IT BRIEFLY AT THAT POINT. WHEN SHE GOT
25 ILL, I'M SURE I LOOKED AT IT TO KIND OF GET A GUIDE AS TO
3799
1 WHERE THE FAMILY WAS, WHERE THE PATIENT WAS, WHAT THEY WOULD
2 WANT FOR END-OF-LIFE CARE.
3 Q. DID YOU UNDERSTAND FROM YOUR CONVERSATION WITH THE
4 FAMILY THAT WHAT WAS EXPRESSED TO YOU WAS CONSISTENT WITH
5 YOUR UNDERSTANDING OF THE TREATMENT PLAN?
6 A. YOU MEAN WHAT WE TALKED ABOUT THAT NIGHT AND WHAT THE
7 TREATMENT PLAN SAID --
8 Q. YES.
9 A. -- LINED UP.
10 Q. YES.
11 A. YES, I DID. YES, THEY DID.
12 Q. NOW, YOU DID ON THE 7TH, YOU ORDERED MORPHINE TO BE
13 STARTED AT SOME POINT THAT EVENING; IS THAT RIGHT?
14 A. MISS CRANE WAS ON A DURAGESIC AND SHE HAD HAD AN
15 INCREASE BECAUSE OF SOME PAIN SEEN BEFORE -- BREAK-THROUGH
16 PAIN BEFORE THAT. SHE HAD ALSO BEEN ON MORPHINE FROM TIME
17 TO TIME ALSO FOR BREAK-THROUGH PAIN. BUT ON THE 7TH, I
18 ORDERED A ROUTINE ORDER OF MORPHINE TO GO ALONG WITH THE
19 DURAGESIC.
20 Q. AND WHAT PRECISELY WAS YOUR ORDER?
21 A. IT'S RIGHT HERE, FIVE MILLIGRAMS I.M. NOW AND EVERY
22 THREE HOURS AROUND THE CLOCK.
23 Q. WHY DID YOU ORDER FIVE MILLIGRAMS NOW, DO YOU REMEMBER?
24 A. SHE APPEARED TO BE UNCOMFORTABLE.
25 Q. AND WHAT WAS THE SIGNIFICANCE OF DOSING ROUND THE CLOCK
3800
1 EVERY THREE HOURS?
2 A. IT'S THE SAME ONCE AGAIN. RATHER THAN A P.R.N. WHERE
3 YOU'VE GOT TO WAIT FOR SOMEONE TO START CRYING OUT, I WANTED
4 THEM TO HAVE COVERAGE FOR ANY PAIN OR SUFFERING. I KNEW
5 THAT WITH THE INFECTION THAT SHE APPARENTLY HAD AND THE FACT
6 THAT REALLY NOTHING WAS TO BE DONE, THAT SHE WAS GOING TO
7 GET UNCOMFORTABLE WITHOUT PAIN CONTROL. SHE'D BECOME
8 DEHYDRATED AND THAT'S NOT PLEASANT.
9 Q. WAS THERE A SIGNIFICANCE TO THE FACT THAT YOUR INITIAL
10 DOSE WAS FIVE MILLIGRAMS OF MORPHINE?
11 A. WELL, IT SEEMED LIKE A REASONABLE DOSE IF THAT -- IT WAS
12 A KIND OF A MODERATE DOSE.
13 Q. AND DID IT HAVE ANY RELATIONSHIP TO THE FACT THAT SHE
14 HAD A DURAGESIC PATCH AT THAT TIME?
15 A. WELL, GIVEN HER STATUS, I PROBABLY WOULD HAVE STARTED AT
16 TEN IF SHE DIDN'T HAVE THE DURAGESIC PATCH. BUT I KNEW THAT
17 THEY GO TOGETHER. ANOTHER ALTERNATIVE I GUESS WOULD HAVE
18 BEEN TO INCREASE THE DURAGESIC PATCH, BUT I DIDN'T THINK OF
19 THAT.
20 Q. NOW, DO YOU RECALL THAT EVENING, DID YOU HAVE A
21 CONVERSATION WITH EARLENE COZZENS AT SOME POINT ABOUT THE
22 USE OF MORPHINE?
23 A. I VAGUELY RECALL THAT NOW THAT IT'S BEEN MENTIONED IN
24 COURT. I DIDN'T BEFORE.
25 Q. AND WHAT DO YOU RECALL IN TERMS OF WHERE THAT
3801
1 CONVERSATION TOOK PLACE?
2 A. AT THE NURSES' STATION.
3 Q. AND WAS ANYONE ELSE PRESENT?
4 A. NOT THAT I REMEMBER.
5 Q. AND WHAT WAS SAID AT THAT TIME BY MISS COZZENS AND BY
6 YOU?
7 A. WELL, SHE WAS CONCERNED ABOUT THE PATIENT GETTING
8 MORPHINE AND THESE PEOPLE WEREN'T TALKING TO US, WEREN'T
9 COMMUNICATING, AND SHE, I THINK, ASKED HOW DO YOU KNOW SHE
10 NEEDS IT. AND I SAID, WELL, HOW DO YOU KNOW SHE DOESN'T.
11 SHE'S DYING. AND IT'S OUR DUTY TO PREVENT SUFFERING. AND,
12 YOU KNOW, WE SHOULD ERR ON THE SIDE OF PROVIDING COMFORT
13 RATHER THAN WORRYING ABOUT SIDE EFFECTS. WE CAN WATCH HER
14 RESPIRATION. ALL THESE PATIENTS, THEIR RESPIRATIONS WERE
15 RECORDED IN THE CHART THROUGHOUT THEIR HOSPITALIZATIONS,
16 WERE PRETTY NORMAL, AND THAT'S SOMETHING YOU CAN CERTAINLY
17 WATCH FOR. AND WE HAD AN I.C.U. DOWN THE HALL WITH NARCAN,
18 SO IF WE HAD AN OVERDOSE, WE COULD FIX THAT.
19 Q. DID YOU HAVE ANY OTHER CONVERSATIONS WITH EARLENE
20 COZZENS THAT EVENING OTHER THAN THAT ONE?
21 A. NOT THAT I REMEMBER.
22 Q. WHY -- TELL US, PLEASE, WHY AS OF THAT EVENING AT ABOUT
23 2000 HOURS YOU ORDERED A FIVE MILLIGRAM DOSE OF MORPHINE TO
24 BE GIVEN TO A PATIENT MARY CRANE?
25 A. ARE YOU TALKING ABOUT THE INITIAL?
3802
1 Q. YES, AND THE REGIMEN THAT IS SO REFLECTED IN YOUR ORDER.
2 A. WELL, WHEN THE PATIENTS ARE DYING, IT'S MY EXPERIENCE
3 THAT FREQUENTLY THEY BECOME VERY AGITATED SOMETIMES. THEY
4 GASP. THEY GROAN. THEY THRASH AND MOAN. AND IT'S NOT
5 PLEASANT FOR THE PATIENT OR FOR THE FAMILY. AND I DIDN'T
6 WANT HER TO HAVE TO SUFFER THAT.
7 Q. ALL RIGHT. TURN PLEASE NOW TO A BINDER, I BELIEVE YOU
8 HAVE A BINDER THERE WITH PATIENT LYDIA SMITH.
9 A. YES.
10 Q. DO YOU HAVE THAT IN FRONT OF YOU?
11 A. RIGHT.
12 Q. TELL US WHAT MEMORY YOU HAVE OF LYDIA SMITH.
13 A. ONCE AGAIN, SHE WAS VERY DEMENTED. SHE WAS AMBULATORY.
14 VERY AGGRESSIVE AT TIMES AND AGITATED. PSYCHOTIC. I COULD
15 LOOK AT MY PSYCH EVAL AND PROBABLY TELL YOU MORE.
16 Q. LET'S TURN TO YOUR PSYCH EVAL, PLEASE.
17 A. SHE'D HAD A REALLY BAD STROKE IN NOVEMBER. HER DOCTOR
18 AT THAT TIME THOUGHT THAT IT WAS GOING TO KILL HER. SHE DID
19 RECOVER SOME, THOUGH, AND SHE WAS VERY, VERY AGITATED AND
20 COMBATIVE AND ASSAULTIVE AND SPITTING AND SCRATCHING AT
21 PEOPLE. ALSO APPEARED VERY DEPRESSED WHEN SHE ARRIVED. AND
22 THAT WAS THE HISTORY WE HAD. DID YOU ASK ABOUT HER MENTAL
23 CONDITION OR PHYSICAL OR BOTH?
24 Q. I WAS GOING TO ASK YOU ABOUT THE ASSESSMENT YOU MADE OF
25 HER ON ADMISSION. I THINK YOU DESCRIBED THAT. DID YOU
3803
1 PRESCRIBE ANY MEDICATION FOR HER ON ADMISSION?
2 A. YES, I DID.
3 Q. AND TELL US WHAT DID YOU ORDER?
4 A. SHE HAD BEEN ON HALDOL. I CHANGED THAT TO RISPERDAL.
5 SHE HAD BEEN ON SERZONE. I CONTINUED THAT. THEN A FEW DAYS
6 AFTER SHE WAS ADMITTED, SHE WASN'T SLEEPING AND SHE WAS
7 STILL QUITE AGITATED, SO I STARTED HER ON TRAZODONE ON THE
8 24TH.
9 Q. COULD YOU EXPLAIN WHY YOU DISCONTINUED THE HALDOL AND
10 REPLACED IT WITH RISPERDAL?
11 A. RISPERDAL IS A LOT SAFER IN ELDERLY. HALDOL THAT'S BEEN
12 TALKED ABOUT IN COURT HERE HAS SIDE EFFECTS CALLED
13 EXTRAPYRAMIDAL SYMPTOMS. SORT OF LIKE HAVING PARKINSONS
14 DISEASE. AND OF COURSE A LOT OF ELDERLY PEOPLE ARE ON THE
15 VERGE OF HAVING PARKINSONS ANYWAY. PUT THEM ON HALDOL AND
16 IT CAN HAVE SERIOUS SYMPTOMS THERE.
17 Q. DOES HALDOL HAVE A PLACE, FOR EXAMPLE, IN THE TREATMENT
18 AND CARE OF ELDERLY PATIENTS?
19 A. WELL, IT HAS A PLACE IN THE CARE OF ALL PATIENTS STILL
20 BECAUSE IT'S AVAILABLE I.M. OR I.V.
21 Q. WHAT IS THE SIGNIFICANCE OF THAT?
22 A. IF YOU'VE GOT A PATIENT WHO EITHER CAN'T OR REFUSES TO
23 TAKE MEDICATIONS BY MOUTH, YOU STILL HAVE THAT OPTION FOR
24 CONTROL OF PSYCHOTIC BEHAVIOR. YOU CAN GIVE A SHOT. HALDOL
25 IS AVAILABLE, AND OF THE MEDICINES THAT ARE AVAILABLE IN
3804
1 PARENTERAL FORM OR I.M. OR I.V., THAT'S PROBABLY THE BEST.
2 Q. AND WHAT OTHER MEDICATIONS DID YOU PRESCRIBE FOR HER ON
3 ADMISSION AND WHY DID YOU DO SO?
4 A. WELL, I CONTINUED HER ON LASIX AND POTASSIUM, MONOXIN,
5 NORADON AND VASOTEC, TYLENOL. THOSE ARE ALL HER -- JUST THE
6 MEDICATIONS SHE'D PRETTY MUCH BEEN ON BEFORE. I THINK I
7 GAVE HER CIPRO FOR THE URINARY TRACT INFECTION.
8 Q. AND WHAT KIND OF DRUG IS CIPRO?
9 A. IT'S A BROAD SPECTRUM ANTIBIOTIC.
10 Q. YOU MENTIONED A FEW OTHER PSYCHOTROPIC MEDICATIONS
11 INITIALLY IN ADDITION TO DISCONTINUING HALDOL. WOULD YOU
12 PLEASE TELL US WHAT THOSE PSYCH MEDS WERE AND WHY YOU
13 THOUGHT THEY WERE APPROPRIATE ON ADMISSION FOR PATIENT LYDIA
14 SMITH?
15 A. WELL, INITIALLY ANTIPSYCHOTIC. SO I STOPPED THE HALDOL
16 AND STARTED RISPERDAL. WE TALKED ABOUT THAT ONE. AND SHE
17 WAS ON SERZONE AND I CONTINUED IT AT THE SAME DOSE.
18 Q. WHAT KIND OF DRUG IS SERZONE?
19 A. IT'S AN ANTIDEPRESSANT.
20 Q. WHY DO YOU THINK THAT WAS APPROPRIATE?
21 A. SHE WAS DEPRESSED AND AGITATED. SHE WAS ALSO ANXIOUS.
22 AND IT'S GOOD FOR ALL OF THOSE.
23 Q. AND ANY OTHER PSYCHOTROPIC MEDICATIONS THAT YOU ORDERED
24 FOR HER ON ADMISSION?
25 A. NO, I DON'T BELIEVE SO.
3805
1 Q. HOW WOULD YOU CHARACTERIZE HER PROGRESSION IN TERMS OF
2 HER BEHAVIOR DURING HER HOSPITAL STAY?
3 A. IT DIDN'T IMPROVE MUCH.
4 Q. AND IN WHAT WAYS DID IT NOT IMPROVE?
5 A. WELL, I KEPT TRYING TO BALANCE MEDICATIONS FOR HER
6 THROUGHOUT THE TIME SHE WAS THERE AND IT WAS QUITE SOME TIME
7 FROM THE 20TH TO THE 8TH -- 20TH OF DECEMBER TO THE 8TH OF
8 JANUARY. THROUGHOUT THAT TIME JUST ABOUT EVERY DAY SHE HAD
9 BEEN QUITE AGITATED PART OF THE DAY IF NOT ALL OF THE DAY.
10 SHE REMAINED AGGRESSIVE AND SHOWED VERY POOR JUDGMENT.
11 Q. AS A RESULT DID YOU -- DID THIS AFFECT YOUR MEDICATION
12 PRACTICES CONCERNING HER?
13 A. YES.
14 Q. AND TELL US HOW SO.
15 A. WELL, I SLOWLY INCREASED HER DRUGS FOR AGITATION AND
16 PSYCHOSIS.
17 Q. AND WHY DID YOU DO THAT?
18 A. WELL, SHE CAME THERE FOR TREATMENT OF THESE PROBLEMS AND
19 THE HOPE WAS TO GET THEM UNDER CONTROL TO THE EXTENT THAT
20 SHE COULD GO HOME OR BACK TO A NURSING HOME.
21 Q. DO YOU RECALL IF HER AGGRESSION AND HER CONTINUED
22 BEHAVIOR PROBLEMS WERE OF CONCERN TO HER FAMILY?
23 A. YES, THEY WERE.
24 Q. IF YOU WOULD TURN FOR EXAMPLE TO -- IN THE BINDER I
25 THINK A PROGRESS NOTE ON 12/29 AND 12/30, PLEASE.
3806
1 A. OKAY. I HAVE THEM BOTH.
2 Q. LET'S START THIS WAY, ROBERT: IF YOU WOULD READ IN ITS
3 ENTIRETY THE NOTE ON 12/29.
4 A. ONCE AGAIN IS IRRITABLE TODAY. HAS BEEN HITTING OUT
5 AGAIN. VERY DEMENTED. SPOKE WITH HER DAUGHTER REGARDING
6 TREATMENT AND PROGNOSES. VITAL SIGNS STABLE. AFEBRILE.
7 ASSESSMENT: INTERMITTENTLY QUITE AGGRESSIVE. THIS WOULD
8 BLOCK PLACEMENT. PLAN: DEPAKENE INCREASE HALDOL I.M. WHEN
9 AND IF RISPERDAL REFUSED. HALDOL P.R.N. SIGNED BY ME.
10 Q. WHEN YOU SAY SPOKE WITH HER DAUGHTER RE TREATMENT AND
11 PROGNOSIS, WHAT PRECISELY DID YOU SPEAK TO HER DAUGHTER
12 CONCERNING?
13 A. THAT VERY DAY SHE'D ALSO SEEN A SOCIAL WORKER, THE
14 DAUGHTER HAD SEEN A SOCIAL WORKER AND --
15 MR. WILSON: YOUR HONOR, I'M GOING TO INTERPOSE AN
16 OBJECTION WITHOUT FURTHER FOUNDATION SURROUNDING THIS
17 CONVERSATION.
18 THE COURT: WANT TO LAY FOUNDATION.
19 Q. (BY MR. STIRBA) SURE. WHY DON'T YOU READ THE SOCIAL
20 WORK NOTE FOR THAT, WHICH IS RIGHT ABOVE THE 12/29/95 ENTRY
21 IN ITS ENTIRETY, PLEASE?
22 A. OKAY. IT'S FROM THE SOCIAL WORKER, KRISTIN STEGLICH.
23 IT SAYS, SOCIAL WORKER NOTE. SPOKE WITH PATIENT'S SON AND
24 DAUGHTER WHO'S FROM ARIZONA. DISCUSSED PATIENT PROGRESS.
25 FAMILY VERBALIZED CONCERN REGARDING DISCHARGE PLANS. THEY
3807
1 EMPHASIZED IMPORTANCE OF DECREASE IN PATIENT'S AGGRESSIVE
2 BEHAVIOR IF SHE IS TO BE ADMITTED TO ROCKY MOUNTAIN
3 BOUNTIFUL AFTER DISCHARGE. PROVIDED SUPPORT OF COUNSELING.
4 FAMILY CONFERENCE TO BE ARRANGED FOR NEXT WEEK TO DISCUSS
5 DISCHARGE PLANS IN DETAIL. KRISTIN STEGLICH.
6 Q. NOW, WHAT IS THE RELATIONSHIP TO YOUR CONVERSATION ON
7 THE 29TH AND THAT SOCIAL WORK NOTE IN TERMS OF A FAMILY
8 CONCERN?
9 A. WELL, THE FAMILY WAS VERY CONCERNED THAT IF WE DIDN'T
10 GET THE BEHAVIOR UNDER CONTROL THAT THEIR HOPED-FOR
11 PLACEMENT AT ROCKY MOUNTAIN BOUNTIFUL WAS GOING TO FALL
12 THROUGH.
13 Q. AND YOU NOTE ON 12/29 THAT YOU SAY THIS WOULD BLOCK
14 PLACEMENT.
15 A. INTERMITTENTLY QUITE AGGRESSIVE. THIS WOULD BLOCK
16 PLACEMENT.
17 Q. AND WHAT DO YOU MEAN BY THAT?
18 A. IF SHE REMAINS AGGRESSIVE, THEY ARE NOT GOING TO TAKE
19 HER AT THE NURSING HOME, ROCKY MOUNTAIN BOUNTIFUL.
20 Q. AND HOW DID YOU GO ABOUT MEDICALLY ATTEMPTING TO GAIN
21 CONTROL OVER HER BEHAVIOR AT THIS POINT?
22 A. WELL, IN THIS NOTE I SAY I'M GOING TO TRY DEPAKENE. I
23 ADDED IT. AND INCREASED THE HALDOL WHEN RISPERDAL WAS
24 REFUSED. SHE REFUSED A LOT OF RISPERDAL. AND SO I HAD THIS
25 STANDING ORDER THAT -- IT WAS A P.R.N. ORDER THAT IF SHE
3808
1 REFUSED RISPERDAL, GIVE HALDOL INSTEAD.
2 Q. WHEN YOU SAY REFUSED, COULD YOU EXPLAIN WHAT YOU MEAN BY
3 SHE REFUSED?
4 A. SHE WOULD SPIT OUT HER MEDICATION OR SHE WOULD MAYBE BE
5 REFUSING TO EAT ANYTHING. JUST COULDN'T GIVE IT BY MOUTH
6 WITHOUT LIKE PUTTING IN A TUBE OR OTHER --
7 Q. AND ON THE 29TH YOUR NOTE INDICATES INCREASE HALDOL.
8 WHY DID YOU INCREASE HALDOL?
9 A. WELL, BECAUSE SHE IS REALLY AGGRESSIVE AND HALDOL IS
10 HELPFUL THERE. I WOULD PREFER TO USE THE RISPERDAL BECAUSE
11 THE LOWER SIDE EFFECT TO GET CONTROL OF AGGRESSION. BUT
12 HALDOL IS A GOOD ANTI-AGITATION, ANTI-AGGRESSIVE MEDICATION.
13 Q. WHY DID YOU ADD DEPAKENE AS OF THE 29TH?
14 A. AS A MOOD STABILIZER.
15 Q. AND WHAT PURPOSE DID YOU BELIEVE THAT DEPAKENE MAY HAVE
16 SERVED AT THAT POINT IN TERMS OF HER BEHAVIOR?
17 A. WELL, HOPEFULLY IT WOULD CALM HER. HELP HER KIND OF
18 THINK BEFORE SHE ACTS -- ACTED, IF AT ALL POSSIBLE.
19 STABILIZE HER.
20 Q. NOW, THE NOTE ON THE 30TH, IF YOU COULD TURN TO THAT
21 PLEASE.
22 A. GOT IT.
23 Q. COULD YOU READ THAT IN ITS ENTIRETY, PLEASE? AND WHEN
24 YOU ARE READING THESE, I JUST WANT TO CAUTION YOU, GO
25 SLOWLY. IT'S HARD FOR US TO KEEP UP. WE TEND TO READ FAST.
3809
1 READ IT SLOW.
2 A. YOU WANT MY NOTE AND NOT THE SOCIAL WORK NOTE THIS TIME
3 ABOUT IT.
4 Q. WHY DON'T YOU READ YOUR NOTE, PLEASE?
5 A. VERY VARIABLE BEHAVIOR. DAUGHTERS HERE TO VISIT. WE
6 TALKED BRIEFLY. GETTING ABOUT HALF OF HER ANTIPSYCHOTIC VIA
7 I.M. HALDOL UNTIL TODAY WHEN SHE TOOK HER ORAL RISPERDAL,
8 AND BEHAVIOR'S BEEN GOOD TODAY. VITAL SIGNS STABLE.
9 AFEBRILE. ASSESSMENT: STABLE. PLAN: CONTINUED CURRENT
10 CARE. ROBERT WEITZEL.
11 Q. DO YOU RECALL WHAT YOU AND THE DAUGHTER DISCUSSED
12 BRIEFLY ON THE 30TH OF DECEMBER?
13 A. ONCE AGAIN, WE WERE -- WE HAD TO GET THINGS UNDER
14 CONTROL FOR HER TO BE PLACED IN A NURSING HOME, WOULD BE THE
15 TOPIC OF DISCUSSION THERE.
16 Q. AND I NOTICE YOU TALK ABOUT VIA I.M. HALDOL TODAY. WHEN
17 YOU SAY HALF OF HER ANTIPSYCHOTIC, WHAT ARE YOU REFERRING TO
18 WHEN YOU SAY HALF OF HER ANTIPSYCHOTIC VIA I.M. HALDOL?
19 A. WELL, SHE WAS GETTING EITHER HALDOL OR RISPERDAL AS
20 ANTIPSYCHOTIC I WAS GIVING. AND SHE'D BEEN, IT SAYS IN THE
21 NOTE RIGHT ABOVE REFUSING TO MAKE TAKE MEDICATION, KICKING,
22 SPITTING. FOR MANY DAYS SHE WOULD DO THAT. AND SO IN ORDER
23 TO GET SOME ANTIPSYCHOTIC ON BOARD, WE'D USE VALIUM AND
24 HALDOL. AND THAT HAD BEEN ABOUT HALF OF THAT UNTIL THAT DAY
25 WHERE SHE TOOK HER ORAL RISPERDAL AND BEHAVIOR'S BEEN GOOD.
3810
1 Q. NOW, DID THERE COME A TIME WHEN HER BEHAVIOR CHANGED?
2 A. YES.
3 Q. AND CAN YOU TELL US GENERALLY WHEN HER BEHAVIOR CHANGED
4 DURING THE COURSE OF HER STAY AT THE HOSPITAL?
5 A. WELL, THE NEXT DAY, YOU KNOW, REFUSING MEDS AGAIN.
6 RECALCITRANT, GOT AGGRESSIVE. AND THEN THE NEXT,
7 DISORIENTED, CONFUSED, DEMENTED. AFTER A DIFFICULT -- OR
8 SLEPT AFTER A DIFFICULT EVENING. THE NEXT ONE, MISSES MANY
9 OF HER DOSES DUE TO NONCOMPLIANCE. MILDLY LABILE AND
10 IRRITABLE. THAT'S THE 3RD. THE 4TH, REMAINS RECALCITRANT,
11 CLIMBING OUT OF BED. VIRTUALLY ENTANGLED IN BED RALES.
12 VERY POOR JUDGMENT. THE 5TH, VERY OBSTINATE, VERY ANGRY.
13 DEMENTED. AT THAT POINT I INCREASED HER MEDICATION.
14 Q. WHY DID YOU DO THAT?
15 A. I WAS UNDER PRESSURE FROM THE FAMILY AND I WANTED TO TRY
16 AND GET HER BETTER. WANTED TO TRY AND GET HER BEHAVIOR
17 UNDER ENOUGH CONTROL SO SHE COULD GET TO THE NURSING HOME.
18 THAT'S MY JOB.
19 Q. WHAT HAPPENED THEREAFTER?
20 A. WELL, AT THAT POINT SHE WAS ON DEPAKENE, KLONOPIN
21 SERZONE, RISPERDAL, AND TRAZODONE. CONTINUES TO BE VERY
22 NEGATIVE. ON THE 6TH SHE WAS FEELING POORLY, LETHARGIC,
23 AMBULATING A BIT. AND THEN ON THE 7TH SHE APPEARED VERY,
24 VERY WEAK AND SHE LOOKED VERY SICK. MEDICALLY ILL. SHE
25 WASN'T TAKING ANY NOURISHMENT. SHE HAD NO URINE OUTPUT.
3811
1 Q. I WAS GOING TO ASK YOU, DID YOU MAKE A DETERMINATION AS
2 TO HER PHYSICAL CONDITION ON THE 6TH OR THE 7TH?
3 A. WELL, SHE LOST EIGHT POUNDS SINCE ADMISSION. AND THERE
4 WAS NO URINE OUTPUT, NO ORAL INTAKE. AND AS A DOCTOR, YOU
5 JUST KIND OF GET SORT OF AN INTUITION OR SENSE ABOUT HOW
6 PATIENTS ARE DOING. AND MY JUDGMENT WAS THAT SHE LOOKED
7 REALLY SICK, AND I ASKED TO SEE THE FAMILY OR TALK TO THE
8 FAMILY ABOUT IT. WE HAD A DISCUSSION.
9 Q. AND DO YOU RECALL WHEN THAT DISCUSSION TOOK PLACE?
10 A. ON THE 7TH.
11 Q. AND WHERE DID YOU TALK TO THE FAMILY?
12 A. ON THE UNIT. I'M NOT SURE, BUT I THINK PROBABLY IN HER
13 ROOM. IT COULD HAVE BEEN AT THE NURSES' STATION. IT COULD
14 HAVE BEEN BOTH.
15 Q. AND DO YOU RECALL WHO WAS PRESENT?
16 A. KENT SMITH WAS THERE. I DON'T KNOW WHO ELSE WAS THERE.
17 FAMILY MEMBERS.
18 Q. AND WHAT WAS THE PURPOSE OF THE MEETING?
19 A. I WANTED TO TELL THEM WHAT I WAS SEEING. I WAS
20 CONCERNED ABOUT HOW SICK SHE WAS AND I WANTED TO ASK THEM
21 WHAT THEY WANTED DONE.
22 Q. AND COULD YOU TELL US, PLEASE, WHAT YOU SAID AND WHAT
23 OTHERS MAY HAVE SAID IN THAT MEETING ON THE 7TH?
24 A. WELL, I TOLD THEM THAT SHE WAS REALLY SICK. THAT IT WAS
25 BASICALLY UP TO THEM WHERE WE WENT FROM THERE. IT WAS MY
3812
1 PRACTICE TO TELL FOLKS, YOU KNOW, IT'S POSSIBLE THAT WE
2 MIGHT BE ABLE TO REVERSE ALL THIS, BUT IT WOULD REQUIRE
3 INVASIVE TECHNIQUES. PROBABLY THE MEDICAL FLOOR, MAKE A
4 TRANSFER, PERHAPS I.C.U. AND I WOULD JUST HAVE LET THEM
5 MAKE UP THEIR MIND WHERE THEY WANTED TO GO FROM THERE.
6 Q. WHEN YOU SAY REALLY SICK, WHAT DID YOU BELIEVE WAS
7 HAPPENING TO LYDIA SMITH?
8 A. I THOUGHT HER ORAL INTAKE, HER FLUID INTAKE, WAS SO LOW
9 SHE WAS QUITE DEHYDRATED. I KNEW THAT BECAUSE SHE WASN'T
10 PUTTING OUT ANY URINE. I DIDN'T KNOW EXACTLY WHAT WAS
11 HAPPENING, BUT SHE JUST SEEMED VERY, VERY ILL TO THE EXTENT
12 THAT IT LOOKED LIKE WE WERE GOING TO HAVE TO GET AGGRESSIVE
13 MEDICALLY.
14 Q. AND BY THAT YOU MEAN WHAT?
15 A. PROBABLY AT LEAST I.V. PROBABLY SOME SORT OF PARENTERAL
16 NUTRITION.
17 Q. PARENTERAL MEANING?
18 A. EITHER A NASAL GASTRIC TUBE OR I.V. FLUIDS AND FEEDINGS.
19 Q. WHAT DID THE FAMILY TELL YOU IN THAT MEETING?
20 MR. WILSON: OBJECTION; HEARSAY.
21 THE COURT: OVERRULED.
22 THE WITNESS: WELL, THEY SAID THAT THEY DIDN'T WANT
23 HER LIFE PROLONGED AND THEY WERE READY TO LET HER GO.
24 Q. (BY MR. STIRBA) IS THAT REFLECTED IN YOUR PROGRESS
25 NOTE.
3813
1 A. THAT'S WHAT I WROTE DOWN.
2 Q. WHICH NOTE IS THAT, DOCTOR?
3 A. IT'S JANUARY 7 IN THE PROGRESS NOTES.
4 Q. COULD YOU READ THAT NOTE IN ITS ENTIRETY FOR US, PLEASE?
5 A. VERY WEAK. NOT TAKING ANY NOURISHMENT. NO URINE
6 OUTPUT. FAMILY DISCUSSION WITH TWO SONS AND DAUGHTER
7 REVEALS THAT THEY DON'T WANT HER LIFE PROLONGED, BUT ARE
8 READY TO LET HER GO. AT TIMES SHE THRASHES ABOUT, SEEMS TO
9 BE IN PAIN AND/OR ANXIETY. ASSESSMENT: QUITE ILL. PLAN:
10 HOLD MEDICATIONS. MORPHINE FIVE MILLIGRAMS EACH THREE HOURS
11 INTRAMUSCULARLY. ROBERT WEITZEL M.D.
12 Q. AT THE TIME OF THE DISCUSSION ON THE 7TH, DID YOU KNOW
13 WHETHER THERE WERE SOME WRITTEN DIRECTIVES THAT HAD BEEN
14 FILED IN HER MEDICAL CHART?
15 A. THE BEST I CAN FIGURE THEY WERE FILLED OUT AT THAT
16 POINT. I DON'T THINK THERE WAS A MEDICAL DIRECTIVE BEFORE
17 THEN. I'M NOT SURE, THOUGH. IT COULD BE.
18 Q. DO YOU KNOW HOW IT WAS THAT THEY WERE FILLED OUT ON THE
19 NIGHT OF THE 7TH?
20 A. WELL, I LOOKED AT THE ONE THAT WAS FILLED OUT AND IT
21 APPEARS THAT EARLENE DID THAT WITH THE FAMILY. I SIGNED OFF
22 ON IT.
23 Q. AND WHAT WAS YOUR INVOLVEMENT IN TERMS OF THE
24 PREPARATION OF THAT DOCUMENT?
25 A. WELL, GENERALLY ON THIS SORT OF PAPERWORK WHERE THE
3814
1 NURSES OR THE SOCIAL WORKER WOULD HAVE WORKED WITH THE
2 FAMILY AND ASKED THEM WHAT THEY WANTED TO PUT IN AND HAD ALL
3 THE SIGNATURES SIGNED, AND THEN BASICALLY I WOULD JUST SIGN
4 OFF ON IT LATER. SO NO INVOLVEMENT IN PREPARATION.
5 Q. DO YOU KNOW WHO INITIATED THE SUGGESTION OR THE
6 RECOMMENDATION THAT A MEDICAL TREATMENT PLAN BE FILLED OUT?
7 A. NO. I DON'T REMEMBER. IT WAS A -- I KNOW ABOUT THIS
8 LAW WHERE YOU HAVE TO OFFER THAT TO PATIENTS. I THINK THAT
9 WOULD HAVE BEEN DONE IN ADMISSION. I DON'T KNOW WHY THIS
10 PARTICULAR FAMILY HADN'T FILLED ANYTHING OUT AND I DON'T
11 KNOW WHO SUGGESTED IT OR, YOU KNOW, I KNOW EARLENE WENT
12 THROUGH WITH IT 'CAUSE SHE SIGNED OFF ON ALL THE RELEVANT OR
13 THE IMPORTANT PLACES WHERE SHE WOULD HAVE HAD TO DO SO AS
14 THE PERSON WHO WAS ACTUALLY GETTING IT DONE.
15 Q. NOW, ON THAT EVENING YOU ORDERED THAT MORPHINE BE
16 STARTED; IS THAT RIGHT?
17 A. YES, I DID.
18 Q. AND TELL US WHAT THAT ORDER WAS.
19 A. FIVE MILLIGRAMS EVERY THREE HOURS.
20 Q. DID YOU ENTER THAT ORDER PRIOR OR AFTER YOUR
21 CONVERSATION WITH THE FAMILY?
22 A. AFTER.
23 Q. AND DO YOU RECALL IF YOU SAW THE MEDICAL TREATMENT PLAN
24 BEFORE YOU ENTERED THE ORDER CONCERNING MORPHINE?
25 A. I DON'T ACTUALLY. I DON'T REMEMBER IF I SAW IT BEFORE I
3815
1 TALKED WITH THE FAMILY ABOUT WHAT THEY WANTED AND THIS
2 MEDICAL TREATMENT PLAN IS CONSISTENT WITH WHAT THEY WANTED.
3 I PROBABLY DID SEE IT, BUT I CAN'T REMEMBER, YOU KNOW,
4 WHETHER I READ IT OR NOT BEFORE I STARTED THE MORPHINE OR
5 AFTER.
6 Q. IN THAT MEETING THAT TOOK PLACE WITH THE FAMILY, CAN YOU
7 TELL US, PLEASE, ABOUT HOW LONG YOU MET?
8 A. JUST A GUESS, TEN OR 20 MINUTES.
9 Q. AND DO YOU RECALL IF YOU WOULD HAVE SAID ANYTHING OF A
10 CRITICAL OR PEJORATIVE NATURE ABOUT LYDIA SMITH TO THE
11 FAMILY AT THAT TIME?
12 A. NO. I HAD CALLED THAT MEETING. I'D ASKED THE FAMILY TO
13 COME, AND I'M CERTAINLY NOT GOING TO SAY ANYTHING LIKE WHAT
14 WAS ALLUDED TO EARLIER.
15 Q. YOU'VE HEARD THE TESTIMONY IN THIS COURT. DID YOU SAY
16 ANY SUCH THING ABOUT LYDIA SMITH TO THE FAMILY THAT EVENING?
17 A. NO.
18 Q. WHY DID YOU AT THAT POINT ON THE 7TH ENTER AN ORDER FOR
19 MORPHINE TO BE STARTED CONCERNING PATIENT LYDIA SMITH?
20 A. WELL, IT WAS MY JUDGMENT THAT SHE WAS DYING. AND IT WAS
21 MY TRAINING THAT THERE ARE -- IT'S UNCOMFORTABLE TO -- WHEN
22 YOU ARE DEHYDRATED, NOT BEING GIVEN FLUIDS, I.V. OR SUCH,
23 AND SHE CERTAINLY WASN'T TAKING ANYTHING BY MOUTH, I DIDN'T
24 WANT HER TO BE UNCOMFORTABLE. I DIDN'T WANT HER TO SUFFER.
25 I DIDN'T WANT HER TO HAVE ANY PAIN. I DIDN'T WANT HER
3816
1 THRASHING AROUND AND MOANING. I DIDN'T WANT THE FAMILY TO
2 SEE THAT. I DIDN'T WANT HER TO HAVE A PAINFUL DEATH.
3 Q. IF YOU WOULD NOW, PLEASE, TURN TO THE BINDER CONCERNING
4 ENNIS ALLDREDGE. MR. ALLDREDGE WAS IN THE HOSPITAL FROM
5 WHEN TO WHEN?
6 A. CAME IN ON THE 10TH OF JANUARY AND HE DIED ON THE 14TH.
7 Q. AND DO YOU HAVE A RECOLLECTION OF MR. ALLDREDGE?
8 A. I PROBABLY HAVE THE BEST RECOLLECTION OF MR. ALLDREDGE
9 OF ALL THE PATIENTS.
10 Q. AND WHY IS THAT?
11 A. MR. ALLDREDGE WAS VERY, VERY STRONG AND HE WAS POWERFUL.
12 HE WAS EIGHTY-ONE OR TWO, BUT HE WAS STRONG. AND HE WAS
13 GRABBING OUT AND TRYING TO PINCH AND HIT PEOPLE AND HE
14 GRABBED HOLD OF THE NURSES' ARMS AND SOME OF THEM WEREN'T
15 THAT STRONG. AND HE WAS SCARY TO EVERYBODY, INCLUDING ME.
16 I WAS IN AT ONE POINT WHEN HE FIRST GOT TO THE UNIT, TRYING
17 TO HELP THE NURSES. I WAS IN TO SEE HIM AND THERE WERE ALL
18 THESE NURSES TRYING TO KEEP HIM UNDER CONTROL AND I WAS
19 HELPING TOO AND HE SCARED ME. HE WAS REALLY OUT OF CONTROL
20 AND I REMEMBER THAT. I THINK BEING THIS MANY YEARS LATER
21 IT'S HARD TO REMEMBER ABOUT ANY PARTICULAR PATIENTS AND I'VE
22 HAD A LOT OF PATIENTS SINCE THEN. I REMEMBER MR. ALLDREDGE.
23 I CAN SEE HIM IN MY MIND.
24 Q. WHAT WAS YOUR ASSESSMENT OF HIS CONDITION AT THE TIME OF
25 HIS ADMISSION?
3817
1 A. SEVERE DEMENTIA AND MEDICALLY VERY, VERY ILL. HE HAD A
2 HISTORY OF -- LONG HISTORY OF HEART PROBLEMS WITH BYPASS
3 GRAPHS AND DIABETES, LONG HISTORY OF DIABETES WHICH WASN'T
4 UNDER VERY GOOD CONTROL, WHICH PREDISPOSES YOU TO HEART
5 PROBLEMS AND TO STROKES. HE HAD A FORM OF CANCER. HE HAD
6 HYPOTHYROIDISM. HE PROBABLY HAD STROKES IN THE PAST. AND
7 HE CERTAINLY HAD WHAT ARE CALLED MYOCARDIAL INFARCTIONS OR
8 HEART ATTACKS IN THE PAST. SO HE WAS, ALTHOUGH QUITE
9 STRONG, HE HAD A LOT OF MEDICAL PROBLEMS AGAINST HIM. AND
10 ADDITIONALLY, HE WAS VERY, VERY DEMENTED WITH A LOT OF THE
11 SYMPTOMS YOU SEE IN MEN WITH DEMENTIA.
12 Q. WHAT DO YOU MEAN BY THAT?
13 A. JUST A LOT MORE AGGRESSION. WHEN PEOPLE ARE DEMENTED,
14 YOU HAVE TO TAKE CARE OF THEM. YOU HAVE TO -- THEY KIND OF
15 REGRESS TO BABYHOOD IN MANY WAYS. YOU HAVE TO DO THE
16 A.D.L.'S, ACTIVITIES OF DAILY LIVING. AND WOMEN WILL TEND
17 TO RESPOND TO OTHERS CARING FOR THEM, TAKING CARE OF BASIC
18 NEEDS COOPERATIVELY. BUT MEN GET REALLY ANGRY, MORE SO THAN
19 WOMEN. THEY ARE PROBABLY MORE INDEPENDENT AND THEY DON'T
20 UNDERSTAND AT ALL WHAT'S GOING ON, AND SO WHEN YOU TRY TO
21 DIAPER THEM, THEY JUST BLOW UP.
22 Q. NOW, DID YOU PRESCRIBE SOME MEDICATION FOR MR. ALLDREDGE
23 ON HIS ADMISSION?
24 A. I DID.
25 Q. AND WOULD YOU TELL US IN THE PSYCH MEDICATION AREA WHAT
3818
1 YOU DID?
2 A. WELL, HE'D BEEN ON HALDOL AND ATIVAN AND RISPERDAL,
3 MELLARIL, BUSPAR, AND BENADRYL BEFORE HE GOT THERE. HE'D
4 HAD HUGE DOSES OF ATIVAN, THREE MILLIGRAMS FIVE TIMES. AND
5 HE WAS TOTALLY OUT OF CONTROL ON ARRIVING AT THE UNIT. I'M
6 SURE HE WAS CONFUSED AND SCARED IN THIS NEW ENVIRONMENT, ALL
7 THESE PEOPLE THAT HE'D NEVER SEEN BEFORE. AND I GAVE HIM
8 TEN MILLIGRAMS OF I.M. HALDOL AND A MILLIGRAM OF I.M. ATIVAN
9 AT THAT POINT. AND THEN ORDERED MEDICATIONS FOR ROUTINE
10 DOSES.
11 Q. FOR WHAT PURPOSE WAS THE HALDOL IN COMBINATION WITH THE
12 ATIVAN GIVEN ON ADMISSION?
13 A. FOR HIS SAFETY AND FOR EVERYONE ELSE'S SAFETY.
14 Q. DID YOU TALK PRIOR TO ADMISSION TO HIS TREATING
15 PHYSICIAN?
16 A. DR. CUNNINGHAM, YES.
17 Q. AND WHAT WAS THE PURPOSE OF TALKING TO DR. CUNNINGHAM
18 PRIOR TO ADMISSION?
19 A. GET A HISTORY AND A SENSE FOR WHO THE MAN WAS AND WHAT
20 WE MIGHT BE ABLE TO -- WHAT HAD BEEN DONE AND WHAT WE COULD
21 DO FOR HIM.
22 Q. DESCRIBE, PLEASE, HIS HOSPITALIZATION AND THE COURSE OF
23 IT DURING THE TIME HE WAS AT THE HOSPITAL?
24 A. OKAY. JUST KIND OF STARTING FROM THE BEGINNING. HE GOT
25 THE TEN MILLIGRAMS OF HALDOL WITH ATIVAN AND HE WAS
3819
1 CONTINUED ON BUSPAR. TRAZODONE WAS STARTED AT BEDTIME AND
2 RISPERDAL WAS ORDERED AT I THINK AN EXTRA MILLIGRAM A DAY.
3 YEAH.
4 Q. LET ME ASK YOU ABOUT THAT. YOU DO INDICATE IN YOUR
5 WRITTEN REPORT, THE PSYCHIATRIC EVALUATION, THAT RISPERDAL
6 WAS TO BE INCREASED?
7 A. THAT'S RIGHT.
8 Q. WHY DO YOU BELIEVE THAT INCREASED RISPERDAL WAS
9 APPROPRIATE?
10 A. WELL, HE WAS ONLY ON TWO MILLIGRAMS. HE WAS A BIG MAN.
11 HE HAD BEEN ON THAT FOR SOME TIME AND IT HAD BEEN INCREASED
12 RECENTLY FROM ONE MILLIGRAM AND IT WASN'T GETTING ANYWHERE.
13 SO I THOUGHT LET'S GO TO THREE MILLIGRAMS AND MAYBE THAT
14 WILL HELP GET HIS AGGRESSION AND PSYCHOSIS UNDER CONTROL.
15 Q. CONTINUE ON THEN WITH HIS HOSPITALIZATION.
16 A. WELL, I CONTINUED ALL THE OTHER MEDICATIONS THAT HE WAS
17 ON OF THE GENERAL MEDICAL MEDICATIONS. BUSPAR STAYED THE
18 SAME. THEN THAT DAY WE GAVE HIM THE HALDOL AND ATIVAN AND
19 ORDERED HALDOL AS P.R.N. IF HE REFUSED RISPERDAL.
20 DR. DIENHART SAW HIM.
21 Q. HOW DID HE DO INITIALLY IN TERMS OF HIS BEHAVIOR AND
22 PROGRESSION WITH THE INITIAL MEDICATIONS THAT WERE ORDERED?
23 A. HE STAYED VERY AGITATED FOR THE MOST PART. FIRST DAY
24 AFTER HE GOT THERE HE HAD A PERIOD OF LETHARGY, BUT HE CAME
25 OUT OF IT PRETTY QUICKLY. WE WERE RIGHT BACK INTO
3820
1 AGGRESSION AGAIN. WE HAD TO RESTRAIN HIM QUITE OFTEN. HE
2 WAS DANGEROUS.
3 Q. NOW, DID THAT AGGRESSION CAUSE CERTAIN OTHER
4 INTERVENTIONS IN TERMS OF CONTROLLING HIM?
5 A. THE NURSES WOULD USE A GERIATRIC CHAIR, WHICH IS
6 BASICALLY JUST A BIG OLD CUSHIONED CHAIR ON WHEELS SO YOU
7 CAN MOVE AROUND. HE WOULD HAVE A POSEY RESTRAINT, WHICH IS
8 A VEST SORT OF AFFAIR WITH STRAPS. IT GOES AROUND THE
9 PATIENT AND STRAPS COME AROUND LIKE THIS AND YOU CAN
10 RESTRAIN THE PERSON FROM THRASHING ABOUT. AT TIMES HE HAD
11 WRIST RESTRAINTS AND LEG RESTRAINTS. I FORGOT YOUR
12 QUESTION.
13 Q. WELL, I THINK THAT'S WHAT I WAS ASKING YOU ABOUT, OTHER
14 INTERVENTION THINGS BY THE NURSING STAFF IN TERMS OF
15 CONTROLLING HIS BEHAVIOR.
16 A. WELL, THAT AND THE OTHER THING I WAS WANTING TO SAY IS
17 THAT HE HAD P.R.N. MEDICATION GIVEN BY THE NURSES. THEY HAD
18 TO GIVE HIM SHOTS OF ATIVAN AND HALDOL.
19 Q. DID THERE COME A POINT IN HIS HOSPITAL STAY WHEN HIS
20 CONDITION CHANGED --
21 A. YES.
22 Q. -- AND AN ACUTE CIRCUMSTANCE OCCURRED?
23 A. YES.
24 Q. AND TELL US WHAT YOU RECALL IN THAT REGARD.
25 A. ON THE 12TH I WAS CONCERNED -- HE LOOKED LIKE MAYBE WHAT
3821
1 WAS CAUSING ALL OF THIS WAS A STROKE. HE APPEARED TO HAVE
2 HAD SORT OF A SUDDEN CHANGE BACK -- I THINK IT WAS SUNSHINE
3 TERRACE WHERE HE WAS UNDER DR. CUNNINGHAM. THERE HAD BEEN A
4 FAIRLY SUDDEN CHANGE, AND QUITE FREQUENTLY THAT CAN BE DUE
5 TO A STROKE. WE GOT AN M.R.I. ON THE 12TH. IT WASN'T A
6 VERY GOOD ONE, BUT IT WAS REPORTED TO ME BY THE NURSE AND
7 RADIOLOGIST AND IN THE REPORT IT SAYS, A LEFT OCCIPITAL
8 STROKE. AND SO I THOUGHT, WELL, WE'VE EITHER GOT A FRESH
9 STROKE HERE OR WHAT'S CALLED A SUBACUTE ONE, ONE THAT HAD
10 HAPPENED PROBABLY IN THE LAST WEEK OR TEN DAYS.
11 Q. AND CAN YOU DESCRIBE THE CONDITION OF MR. ALLDREDGE AS
12 YOU OBSERVED IT ON THE 12TH BEFORE THE M.R.I. RESULTS WERE
13 OBTAINED?
14 A. IF I COULD JUST READ MY NOTES?
15 Q. PLEASE.
16 A. REMAINS QUITE DEMENTED. COMBATIVE. MUMBLES
17 INCOHERENTLY. CRIES OUT. WILL NOT TAKE ANY MEDICATIONS.
18 VITALS STABLE AND AFEBRILE. ASSESSMENT: PSYCHOSIS NOT
19 OTHERWISE SPECIFIED. AND AT THAT POINT I INCREASED HIS
20 HALDOL.
21 Q. DID YOU RECEIVE A REPORT ON THE M.R.I.?
22 A. YES.
23 Q. AND DID YOU TAKE ANY ACTION CONCERNING IT?
24 A. WELL, ON THE 12TH HE LOOKED KIND OF DEHYDRATED. HE WAS
25 GETTING DRY. HE WASN'T TAKING ANYTHING BY MOUTH 'CAUSE WHEN
3822
1 ANYONE WOULD TRY AND GIVE HIM SOMETHING TO DRINK, HE WOULD
2 JUST BAT IT AWAY. HE WOULDN'T TAKE ANY MEDICATION HARDLY AT
3 ALL. SO I HAD THEM START I.V. HE HAD TO BE TIED DOWN FOR
4 THAT OR HE WOULD RIP IT OUT. ON THE 13TH I HAD THE
5 INFORMATION REGARDING THE STROKE AND SOME OTHER INFORMATION.
6 SHALL I READ MY NOTE?
7 Q. WHAT OTHER INFORMATION DID YOU HAVE?
8 A. WELL, I GOT THE URINALYSIS BACK AND IT SHOWED A URINARY
9 TRACT INFECTION. I GOT -- I HAD GLUCOSE LEVELS FROM
10 ACCU-CHECKS AND FROM A CHEMISTRY PANEL THAT WERE VARYING
11 FROM 40 TO 226. HE WAS REALLY DRY. HIS SODIUM WAS 148.
12 AND THEN I HAD WHAT WAS IN FRONT OF ME, A PATIENT WHO LOOKED
13 VERY SICK.
14 Q. AND WHAT DID YOU CONCLUDE AS A RESULT OF THE REPORTS YOU
15 JUST INDICATED AND YOUR ASSESSMENT AT THE TIME?
16 A. THAT I NEEDED TO TALK WITH THE FAMILY.
17 Q. AND DID YOU DO THAT?
18 A. I DID.
19 Q. AND DO YOU RECALL THE DAY THAT YOU TALKED WITH THE
20 FAMILY?
21 A. I THINK THERE MAY HAVE BEEN A PHONE CALL ON FRIDAY, BUT
22 I KNOW I MET WITH HIS WIFE SATURDAY MORNING. I THINK THERE
23 MAY HAVE BEEN A BRIEF PHONE CALL TO THEIR HOME ASKING TO
24 TALK WITH HER, BUT I KNOW SHE CAME UP TO THE UNIT 'CAUSE I
25 SAW HER THERE.
3823
1 Q. AND WHAT DATE WAS THAT?
2 A. THE 13TH.
3 Q. AND DO YOU HAVE YOUR NOTE ON THE 13TH IN FRONT OF YOU?
4 A. YES. IT'S KIND OF A LONG ONE.
5 Q. WHY DON'T YOU DO THIS, DOCTOR: WOULD YOU PLEASE READ
6 BEFORE IT SAYS ADDENDUM, THE FIRST PORTION OF YOUR NOTE ON
7 THE 13TH CONCERNING YOUR ASSESSMENT OF MR. ALLDREDGE'S
8 CONDITION?
9 A. OKAY. THIS IS BEFORE I SAW HIS WIFE. I CAME IN AND IT
10 SAYS, PATIENT REMAINS INCOHERENT, UNRESPONSIVE. CRYING.
11 NEEDS RESTRAINT. M.R.I. SHOWS LEFT OCCIPITAL INFARCT.
12 URINALYSIS IS PYURIC. THAT MEANS HE'S GOT A URINARY TRACT
13 INFECTION. GLUCOSE LEVEL IS AT 40 BY ACCU-CHECKS. THAT'S A
14 LITTLE FINGER PRICK.
15 Q. WHAT'S THE SIGNIFICANCE OF THE LEVEL 40?
16 A. THAT'S LOW. SEVENTY TO 110 IS NORMAL. FORTY IS PRETTY
17 LOW. IT GOES MUCH LOWER THAN THAT AND YOU ARE GOING TO GET
18 BRAIN DAMAGE. THAT WAS DONE AT 06:00. SO I GOT THAT AT
19 06:00. AND THEN, HE'S AFEBRILE, VITAL SIGNS STABLE. CHEM
20 SEVEN. THIS IS A CHEMISTRY PANEL AT 0610 REVEALS GLUCOSE OF
21 226. THAT'S A HUGE SWING OF HIS GLUCOSE FROM 40 TO 226. I
22 DOUBT THEY WERE ACTUALLY TEN MINUTES APART, BUT THEY WOULD
23 HAVE BEEN DONE WITHIN AT MOST 30 MINUTES OR SO, AN HOUR.
24 Q. IF YOU WOULD CONTINUE, PLEASE .
25 A. SODIUM AT 148. NORMAL SODIUM IS 135 TO 145. SO HIS
3824
1 SODIUM WAS UP. AND THAT'S SOME INDICATION OF SOME
2 DEHYDRATION. I COULD LOOK UP THE REST OF IT. B.U.N. AND
3 CREATININE WOULD TELL ME MORE. THAT'S WHAT I WROTE.
4 POTASSIUM ADEQUATE. ASSESSMENT: C.V.A., WHICH IS
5 CEREBROVASCULAR ACCIDENT, STANDS FOR STROKE. U.T.I. OR
6 URINARY TRACT INFECTION. DEHYDRATION. APPEARS TO BE QUITE
7 UNCOMFORTABLE. INSULIN DEPENDENT DIABETES MELLITUS.
8 MYCOSIS FUNGOIDES.
9 Q. WHAT'S THAT?
10 A. THAT'S THE LYMPHOMA. IT'S A T-CELL LYMPHOMA, THE
11 CANCER. PLAN: WILL ATTEMPT TO CALL WIFE. WORK OUT A PLAN
12 WITH HER, AND I SIGNED IT. THEN THERE'S AN ADDENDUM.
13 Q. NOW, BEFORE I GET TO THE ADDENDUM, YOU SAID ATTEMPT TO
14 CALL WIFE. DO YOU RECALL TRYING TO DO THAT?
15 A. VAGUELY. YOU KNOW, I THINK I CALLED HER HOUSE AND MAYBE
16 SPOKE WITH HER BRIEFLY AND ASKED HER TO COME UP.
17 Q. AND DO YOU RECALL THE DATE OF THAT CONVERSATION WHEN YOU
18 ATTEMPTED TO CALL HER?
19 A. WELL, THIS IS THE 13TH SO I KNOW I CALLED HER THAT DAY.
20 I DON'T KNOW ABOUT --
21 Q. ALL RIGHT. NOW, IF YOU READ THE ADDENDUM -- AND ONCE
22 AGAIN, PLEASE, BECAUSE I WANT TO ASK YOU TO READ A FEW OTHER
23 ENTRIES HERE, READ IT SLOWLY SO WE CAN FOLLOW ALONG.
24 A. OKAY. STILL THE 13TH. ADDENDUM. SPOKE WITH WIFE
25 EXTENSIVELY. SHE FEELS STRONGLY THAT NO EXTRAORDINARY
3825
1 MEASURES SHOULD BE TAKEN TO PROLONG ENNIS'S LIFE GIVEN
2 C.V.A. FOUND ON M.R.I. SHE REQUESTS WE DISCONTINUE I.V. AND
3 GIVE HIM COMFORT CARE. LET HIM EXPIRE NATURALLY.
4 CONTINUED.
5 Q. AND CONTINUE ON, PLEASE.
6 A. NEXT PAGE, ASSESSMENT: STROKE, ET CETERA. PLAN:
7 DISCONTINUE I.V. DECREASE INSULIN. DISCONTINUE ORAL MEDS.
8 MORPHINE SULFATE TEN MILLIGRAMS EVERY THREE HOURS
9 INTRAMUSCULARLY. ATIVAN. 0.5 MILLIGRAMS EVERY THREE HOURS
10 INTRAMUSCULARLY AS NEEDED. HALDOL AS NEEDED.
11 Q. NOW, DO YOU RECALL THE DATE WHEN YOU WROTE THAT NOTE?
12 A. THE 13TH.
13 Q. AND DO YOU RECALL THE CIRCUMSTANCES OF MEETING WITH THE
14 FAMILY ON THAT DAY?
15 A. I REMEMBER MEETING WITH THEM, YES. WE TALKED ABOUT WHAT
16 WAS GOING ON.
17 Q. OKAY. BEFORE YOU GET THERE, DO YOU RECALL WHERE THE
18 CONVERSATION TOOK PLACE?
19 A. IT WAS ON THE UNIT, BUT I'M NOT SURE NURSING STATION OR
20 IN THE ROOM. I THINK -- I'M SURE WE LOOKED IN ON HIM
21 TOGETHER, BUT THE WHOLE CONVERSATION I THINK WAS LIKE OUT IN
22 THE HALL.
23 Q. AND DO YOU RECALL WHO WAS PRESENT DURING THAT
24 CONVERSATION?
25 A. HIS WIFE FOR SURE, BUT I DON'T REMEMBER ANYONE ELSE.
3826
1 NURSES WERE IN AND OUT. A LOT OF PEOPLE AROUND.
2 Q. AND BY WIFE, JUST SO WE'RE CLEAR, WAS THAT THE WOMAN WHO
3 TESTIFIED IN THIS TRIAL?
4 A. THAT WOULD HAVE BEEN VONDA.
5 Q. VONDA. AND TELL US WHAT YOU SAID AND WHAT VONDA SAID AT
6 THAT TIME.
7 MR. WILSON: OBJECTION, YOUR HONOR, AS TO VONDA.
8 THE COURT: OVERRULED.
9 THE WITNESS: WELL, I WOULD HAVE TESTIFIED -- I
10 MEAN I WOULD HAVE TOLD HER WHAT I HAD SEEN IN HIS CONDITION.
11 I WOULD HAVE, YOU KNOW, BASICALLY EVERYTHING THAT'S HERE, I
12 WOULD HAVE TOLD HER ABOUT. AND I'M SURE I TOLD HER THAT IT
13 DIDN'T LOOK GOOD, THAT HE WAS QUITE ILL. ASKED HER WHAT SHE
14 WANTED TO DO. THERE WAS A LIVING WILL AND THERE WERE A LOT
15 OF DOCUMENTS REGARDING MR. ALLDREDGE AS TO WHAT THE FAMILY
16 WANTED. WE PROBABLY WENT OVER THAT AND SHE TOLD ME WHAT SHE
17 WANTED.
18 Q. (BY MR. STIRBA) NOW, IN TERMS OF WHAT YOU ACTUALLY
19 DID, IN YOUR NOTE IT INDICATES D. SLASH C., WHICH I GUESS
20 STANDS FOR DISCONTINUE I.V.?
21 A. YES. COUPLE OF PLACES.
22 Q. DID YOU TAKE THAT ACTION BEFORE OR AFTER YOU TALKED WITH
23 VONDA?
24 A. AFTER.
25 Q. AND WHY DID YOU DISCONTINUE THE I.V.?
3827
1 A. WELL, I'D STARTED THE I.V. BEFORE I HAD A CHANCE TO TALK
2 TO THEM BECAUSE HE WAS DEHYDRATED. ON THE 12TH I STARTED
3 THE I.V., STARTED GIVING HIM SOME FLUIDS. BUT IN REVIEWING
4 THE MEDICAL TREATMENT PLAN IT SAYS NO I.V., I THINK. I
5 GUESS ON HIM IT DIDN'T. I TALKED WITH HER AND SHE WAS
6 TELLING ME GIVE COMFORT CARE. LET HIM EXPIRE NATURALLY.
7 THIS MAN, IF YOU KEPT AN I.V. IN HIM, HE WAS GOING TO TRY
8 AND RIP IT OUT AND IT IS WHAT'S CALLED AN INVASIVE
9 TECHNIQUE. IT'S EXTRAORDINARY CARE OF SORT.
10 Q. DO YOU CONSIDER AN I.V. AN EXTRAORDINARY MEASURE?
11 A. YES.
12 Q. AND WHY IS THAT?
13 A. WELL, BASICALLY MY UNDERSTANDING OF MEASURES IS THAT
14 GIVING A FOOD OR A MEDICINE IS NOT EXTRAORDINARY, BUT WHEN
15 YOU INVADE THE BODY LIKE STICK A NEEDLE IN A VEIN OR PUT A
16 TUBE IN THROUGH THE STOMACH WALL INTO THE STOMACH, RIGHT
17 THROUGH THE ABDOMEN INTO THE STOMACH, THAT THAT'S
18 EXTRAORDINARY. THAT'S -- THOSE ARE THINGS THAT MEDICINE'S
19 COME UP WITH IN THE LAST 50 YEARS OR SO THAT ARE TECHNIQUES.
20 THEY ARE TECHNICAL THINGS THAT CAN BE DONE, BUT NOT ALWAYS
21 APPROPRIATE.
22 Q. AND THEN YOU HAVE AN ARROW DOWN WHICH INDICATES
23 DECREASED, DOES IT NOT, ON YOUR NOTE?
24 A. WHERE?
25 Q. ON THE 13TH AT THE TOP.
3828
1 A. OH, YES. DECREASE INSULIN.
2 Q. COULD YOU TELL US WHY AT THAT TIME YOU DECREASED THE
3 INSULIN?
4 A. I DON'T THINK I REALLY THOUGHT THAT THROUGH VERY WELL
5 'CAUSE, YOU KNOW, WE WERE HOLDING MEDS. I SHOULD HAVE JUST
6 DISCONTINUED THE INSULIN. BUT HE HAD DIABETES AND I'VE BEEN
7 KIND OF TRAINED TO TREAT THAT WITH INSULIN SO I DECREASED IT
8 THINKING, WELL, WE'LL DISCONTINUE IT.
9 Q. DID YOU TAKE THAT ACTION BEFORE OR AFTER TALKING WITH
10 VONDA?
11 A. AFTER.
12 Q. AND THEN YOU HAVE D. SLASH C. FOR DISCONTINUE ORAL MEDS.
13 DO YOU SEE THAT?
14 A. WE HAD BEEN TRYING TO GIVE HIM ALL SORTS OF ORAL
15 MEDICATION. SO I SAID, LET'S JUST STOP IT.
16 Q. AND WHY DID YOU DO THAT?
17 A. WELL, GIVEN THAT HE WAS DEHYDRATED AND PROBABLY HAD HAD
18 A STROKE AND WAS JUST GENERALLY VERY MEDICALLY ILL AND
19 NOTHING -- THE FAMILY IS TELLING ME THEY DON'T WANT THINGS
20 DONE. THERE IS NO POINT REALLY IN FORCING MEDICATIONS,
21 I.V.'S, ALL OF THIS STUFF. SO I DISCONTINUED THEM.
22 Q. IT GOES ON TO SAY, I GUESS, M.S. MORPHINE TEN MILLIGRAMS
23 EVERY THREE HOURS I.M. DO YOU SEE THAT?
24 A. SURE DO.
25 Q. AND DID YOU ENTER AN ORDER AT THAT TIME THAT MORPHINE BE
3829
1 ADMINISTERED EVERY THREE HOURS?
2 A. YES.
3 Q. AND DID YOU ALSO ORDER ANOTHER MEDICATION IN CONJUNCTION
4 WITH THE MORPHINE AT THAT TIME?
5 A. ATIVAN.
6 Q. TELL US, PLEASE, WHY YOU THOUGHT MORPHINE AND ATIVAN WAS
7 APPROPRIATE TO BE ADMINISTERED AT THIS TIME?
8 A. THEY WORK WELL TOGETHER. MORPHINE IS A PAIN RELIEVER
9 AND IT RELIEVES DYSPNEA. IT RELIEVES THE AGITATION AND
10 GENERAL DISCOMFORT AND FEAR, ANXIETY OF A PERSON WHO'S
11 DYING. ATIVAN IS AN ANXIETY RELIEVER PER SE. AND IT
12 DOESN'T DECREASE RESPIRATIONS SO THEY MIX WELL TOGETHER. HE
13 HAD A LOT OF AGITATION, A LOT OF ANXIETY AND I THOUGHT THESE
14 WERE APPROPRIATE.
15 Q. DID YOU ORDER THE MORPHINE AND THE ATIVAN BEFORE OR
16 AFTER TALKING WITH VONDA?
17 A. AFTER.
18 Q. NOW, I WANT TO DIRECT YOUR ATTENTION TO, THERE'S ANOTHER
19 NOTE ON THE 13TH UNDER YOUR NOTE. DO YOU SEE THAT?
20 A. UNDER PROGRESS NOTES?
21 Q. YES.
22 A. YES.
23 Q. AND CAN YOU IDENTIFY THE SIGNATURE THAT FOLLOWS THAT
24 NOTE?
25 A. IT'S TODD'S, TODD CHAMBERS.
3830
1 Q. AND IT LOOKS LIKE L.C.S.W.?
2 A. RIGHT.
3 Q. THAT STANDS FOR WHAT?
4 A. LICENSED CLINICAL SOCIAL WORKER.
5 Q. COULD YOU READ THAT NOTE IN ITS ENTIRETY WHICH FOLLOWS
6 YOUR NOTE ON THE 13TH, PLEASE?
7 A. I'M DO MY BEST.
8 Q. AND ONCE AGAIN, DO IT SLOWLY.
9 A. OKAY. MET WITH FAMILY FOR ONE AND A HALF HOURS. THEY
10 ASKED ME TO CALL THE MORTUARY IN DELTA, UTAH. I CONTACTED
11 NICHOLS MORTUARY AND THEY WILL COME WITHIN TWO AND A HALF TO
12 THREE HOURS OF BEING NOTIFIED. FAMILY VERY SUPPORTIVE OF
13 MEASURES BEING TAKEN. THEY ARE ESPECIALLY GLAD THAT THE
14 PATIENT IS CLOSE BY IN DAVIS COUNTY SO THAT THEY DON'T HAVE
15 TO TRAVEL TO LOGAN. ATTEMPTED TO NOTIFY DR. DIENHART AND AS
16 OF 1010 HOURS, HE HAS NOT ANSWERED THE PAGE. WILL TRY --
17 Q. AT HOME?
18 A. OKAY. WILL TRY AT HOME IN ORDER TO NOTIFY OF PATIENT'S
19 CONDITION AND M.R.I. RESULTS. PLEASE NOTIFY ME IF ANY
20 FURTHER PROBLEMS ARISE. TODD CHAMBERS, L.C.S.W.
21 Q. BETWEEN THIS TIME AND THE TIME OF MR. ALLDREDGE'S
22 EXPIRATION, DID YOU TALK WITH DR. DIENHART?
23 MR. WILSON: I'M GOING TO OBJECT AS TO ANYTHING
24 DR. DIENHART MAY HAVE SAID, YOUR HONOR.
25 THE COURT: WELL, THE QUESTION WAS, DID HE TALK,
3831
1 NOT WHAT WAS SAID.
2 MR. WILSON: APPRECIATE THAT.
3 THE WITNESS: I DON'T THINK I DID.
4 Q. (BY MR. STIRBA) IS THERE ANYTHING IN YOUR PROGRESS
5 NOTES TO INDICATE THAT YOU TALKED WITH DR. DIENHART?
6 A. WELL, THERE'S NO ORDERS OR ANYTHING FROM DR. DIENHART
7 WHERE HE CAME IN TO SEE THE PATIENT. AND I DON'T SEE
8 ANYTHING WHERE I WROTE ANYTHING ABOUT TALKING TO DR.
9 DIENHART, WHICH I PROBABLY WOULD HAVE AT LEAST NOTED.
10 Q. NOW, I WANT TO DIRECT YOUR ATTENTION TO A PROGRESS NOTE
11 ON 1/14 WHICH IS MED-19. DO YOU SEE THAT?
12 A. YES.
13 Q. WOULD YOU READ THAT IN ITS ENTIRETY, PLEASE?
14 A. MY NOTE?
15 Q. YES. IT'S YOUR NOTE.
16 A. OKAY. CHEYNE-STOKES RESPIRATIONS. DEEP CHEST RALES.
17 HAD BEEN QUIET MOST OF THE NIGHT BUT APPEARED AGITATED THIS
18 MORNING. WAS GIVEN EXTRA MORPHINE. SLIGHTLY FEBRILE.
19 BLOOD PRESSURE IS DOWN. ASSESSMENT: CLOSE TO DEATH. PLAN:
20 CONTINUE COMFORT CARE.
21 Q. NOW, WHEN YOU USE THE TERM COMFORT CARE IN THE CONTEXT
22 OF THAT NOTE, WHAT DID YOU MEAN?
23 A. THE CARE THE WHOLE TEAM WAS GIVING, THE COMFORT CARE
24 FROM THE NURSES, TURNING HIM, MOUTH SWABS, KEEPING CLOSE
25 WATCH ON HOW HE WAS DOING, AND MORPHINE AND ATIVAN THAT I
3832
1 WAS PRESCRIBING.
2 Q. DID YOU -- BETWEEN THE 13TH AND YOUR CONVERSATION WITH
3 VONDA AND THE TIME THAT MR. ALLDREDGE EXPIRED, DID YOU HAVE
4 OCCASION TO SEE THE FAMILY AGAIN?
5 A. I'M SURE I WOULD HAVE BECAUSE APPARENTLY, YOU KNOW,
6 WELL, THEY WERE THERE A LOT. AND ALMOST ALL THE TIME I
7 THINK THE FAMILY WAS AROUND.
8 Q. DID YOU HAVE ANY ADDITIONAL CONVERSATIONS WITH THEM AT
9 THAT TIME OR AFTER THE CONVERSATION WITH VONDA CONCERNING
10 THE CARE THAT MR. ALLDREDGE WAS RECEIVING AT THAT TIME?
11 A. WELL, I'M SURE WE WOULD HAVE SPOKEN, BUT I DON'T
12 REMEMBER ANYTHING THAT WAS SAID IN PARTICULAR.
13 THE COURT: WOULD THIS BE A GOOD TIME TO TAKE A
14 BREAK?
15 MR. STIRBA: THIS WOULD.
16 THE COURT: LADIES AND GENTLEMEN, DURING THIS
17 SECOND MORNING BREAK, REMEMBER IT'S YOUR DUTY NOT TO
18 CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW
19 YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON ON THE
20 SUBJECT OF THIS TRIAL. AND THAT IT'S YOUR DUTY NOT TO FORM
21 OR EXPRESS AN OPINION UNTIL YOU'VE -- THE CASE IS FINALLY
22 SUBMITTED TO YOU AFTER YOU'VE HEARD ALL THE EVIDENCE. AND
23 LET'S COME BACK AT 11:15.
24 (WHEREUPON, COURT WAS IN RECESS.)
25 THE COURT: PLEASE BE SEATED. RECORD WILL REFLECT
3833
1 THAT THE JURY IS RETURNED. MR. STIRBA, WOULD YOU LIKE TO
2 CONTINUE?
3 Q. (BY MR. STIRBA) ROBERT, IF YOU WOULD, TURN TO ELLEN
4 ANDERSON'S BINDER, PLEASE. WHAT MEDICATIONS WERE GIVEN TO
5 PATIENT ELLEN ANDERSON?
6 A. JUST ONE MEDICATION. SHE HAD TWO DOSES OF MORPHINE.
7 Q. AND DO YOU RECALL WHEN THOSE DOSES WERE ADMINISTERED TO
8 HER?
9 A. AT 7:30 IN THE EVENING ON THE 29TH AND 3:30 IN THE
10 MORNING ON THE 30TH.
11 Q. AND TELL US, PLEASE, WHY YOU THOUGHT A TEN-MILLIGRAM
12 MORPHINE DOSE WAS APPROPRIATE, WHICH WAS ADMINISTERED TO HER
13 ON THE 29TH.
14 A. SHE WAS IN SEVERE PAIN.
15 Q. AND ON WHAT DID YOU BASE THAT ASSESSMENT ON AT THE TIME?
16 A. I WAS CALLED BY THE NURSE WHO WAS HEAD NURSE AT THAT
17 TIME OR THE CHARGE NURSE ON THE UNIT WHO WAS LAURIE WILLSON,
18 OR I GUESS LAURIE WILLSON STEVENSON NOW. SHE TOLD ME THAT
19 HER ASSESSMENT WAS THAT THE PATIENT WAS IN SEVERE PAIN. AND
20 I HAD A HISTORY OF SEVERE OSTEOPOROSIS WITH SEVERAL
21 DIFFERENT KINDS OF FRACTURES AND PREVIOUS HISTORY OF OPIATE
22 USE FOR PAIN. AND WE DISCUSSED IT. AND LAURIE WILLSON WAS
23 A VERY HIGHLY TRAINED NURSE, ONE I COULD PROBABLY DEPEND ON
24 THE MOST THERE IN TERMS OF --
25 MR. WILSON: OBJECTION, YOUR HONOR. IT'S
3834
1 NONRESPONSIVE.
2 THE COURT: REPHRASE THE QUESTION.
3 Q. (BY MR. STIRBA) DID THE FACT THAT YOUR CONVERSATION
4 WITH LAURIE, NOW STEVENSON, WAS WITH HER, DID THAT HAVE
5 ANYTHING SIGNIFICANT TO YOU IN TERMS OF THE INFORMATION THAT
6 WAS IMPARTED?
7 A. YES.
8 Q. AND TELL US WHY THAT WAS SIGNIFICANT.
9 A. LAURIE GENERALLY KNEW WHAT SHE WAS DOING. AND HER
10 ASSESSMENTS OF PATIENTS WERE RIGHT ON. SHE HAD A LOT OF
11 TRAINING. SHE HAD TRAINING IN GERIATRICS AND IN PSYCHIATRY
12 AND I DEPENDED ON HER. I RESPECTED HER.
13 Q. AND DO YOU RECALL WHAT SHE TOLD YOU IN THAT
14 CONVERSATION?
15 A. THAT THE PATIENT WAS SCREAMING EVERY TIME SHE WAS
16 TOUCHED. MISS ANDERSON WAS, SHE SAID, IN SEVERE PAIN.
17 Q. NOW THE OTHER MORPHINE DOSE WAS GIVEN AT 3:30 THE
18 FOLLOWING MORNING; IS THAT RIGHT?
19 A. THAT'S RIGHT.
20 Q. AND DO YOU RECALL THE CIRCUMSTANCES OF ORDERING THAT
21 TEN-MILLIGRAM DOSE BEING ADMINISTERED AT THAT TIME?
22 A. I WAS PAGED BY NURSE SCHOLLS WHO BASICALLY TOLD ME ONCE
23 AGAIN THE PATIENT'S IN PAIN.
24 MR. WILSON: OBJECTION, YOUR HONOR. IT'S HEARSAY.
25 THE COURT: OVERRULED.
3835
1 Q. (BY MR. STIRBA) YOU HAD A CONVERSATION. TELL THE JURY
2 WHAT NURSE SCHOLLS TOLD YOU IN THAT TELEPHONE CONVERSATION.
3 A. WELL, FOR THIS CONVERSATION, YOU KNOW, I GOT WOKE UP IN
4 THE MIDDLE OF THE NIGHT, AND I WOULD LIKE TO LOOK AT THE
5 NURSE'S NOTES TO SEE WHAT SHE SAID.
6 Q. WELL, WOULD THAT REFRESH YOUR RECOLLECTION?
7 A. IT WOULD.
8 Q. PLEASE DO.
9 A. SHE WRITES, DR. WEITZEL RETURNED PAGE. INFORMED OF
10 PATIENT'S CONDITION. MORPHINE TEN MILLIGRAMS I.M. GIVEN PER
11 DOCTOR ORDER. RIGHT BEFORE THAT SHE WRITES, AT 3:15,
12 PATIENT AWAKENED, THRASHING ARMS AND ATTEMPTING TO THROW
13 BODY. PATIENT MOANING, SCREAMING.
14 SHE WOULD HAVE TOLD ME WHAT WAS GOING ON WITH THE
15 PATIENT, WHICH WAS BASICALLY WHAT HAD BEEN GOING ON AT 7:30,
16 AND THE PREVIOUS ORDER FOR TEN MILLIGRAMS APPEARED TO BE
17 HELPFUL AND I REORDERED IT.
18 Q. NOW, I WANT YOU TO LOOK AT YOUR PROGRESS NOTE --
19 A. OKAY.
20 Q. -- ON THE 30TH. DO YOU SEE THAT?
21 A. RIGHT.
22 Q. AND WOULD YOU READ THAT NOTE IN ITS ENTIRETY, PLEASE?
23 A. 12/30/95 M.D. PATIENT DIED THIS MORNING AT 8:55. SHE
24 HAD ERRATIC BREATHING AND IRREGULAR PULSE. E.K.G. ON
25 ADMISSION SHOWED SINUS TACHYCARDIA WITH ARRHYTHMIA.
3836
1 ASSESSMENT: PROBABLE MYOCARDIAL INFARCTION. RECOMMEND
2 AUTOPSY. PLAN: I WILL RELEASE TO FAMILY. ROBERT WEITZEL,
3 M.D.
4 Q. WHY DID YOU WRITE IN CHART RECOMMEND AUTOPSY?
5 A. THIS WAS UNEXPECTED. IT WAS A SUDDEN DEATH. I HAD NO
6 IDEA WHAT HAD CAUSED IT. I HAD NO SUSPICION IT WAS DUE TO
7 MORPHINE BECAUSE THE LAST MORPHINE HAD BEEN OVER FIVE HOURS
8 BEFORE. BUT I WANTED TO KNOW WHAT HAD HAPPENED. I FIGURED
9 IT WAS PROBABLY A HEART ATTACK. AT HER AGE AND THE
10 CONDITION SHE WAS IN, IT SEEMED LIKE THE BEST GUESS. AND I
11 WAS THINKING AN AUTOPSY WOULD BE HELPFUL TO TELL US EXACTLY
12 WHAT HAPPENED.
13 Q. NOW, YOU REFERENCE IN THAT NOTE AN E.K.G.; IS THAT
14 RIGHT?
15 A. RIGHT.
16 Q. DID YOU KNOW THE RESULTS OF THE E.K.G. BEFORE YOU
17 ORDERED ANY MORPHINE TO BE ADMINISTERED?
18 A. NO.
19 Q. AND WHY IS THAT?
20 A. WELL, IT WASN'T -- YOU KNOW, I WROTE ON ADMISSION.
21 THAT'S PART OF MY ADMISSION ORDERS. IT WAS ACTUALLY DONE AT
22 5:20 IN THE MORNING.
23 Q. AND SIMILARLY, THERE WAS ALSO AN INDICATION THAT A CHEST
24 X-RAY WAS DONE AS WELL?
25 A. RIGHT.
3837
1 Q. AND WERE YOU AWARE OF THE RESULTS OF THE CHEST X-RAY
2 BEFORE YOUR TWO CONTACTS WITH THE NURSES THAT YOU'VE
3 TESTIFIED TO?
4 A. NO.
5 Q. AND WHY IS THAT?
6 A. SIMILARLY, I HAD IT ORDERED IT AS PART OF THE ADMISSION
7 ORDERS, BUT IT WASN'T DONE UNTIL LATER. I'M LOOKING AT THAT
8 CHEST X-RAY AND I DON'T SEE A TIME ON IT. BUT I THINK IN
9 THE NURSES' NOTES IT STATED IT WAS DONE ABOUT THE SAME TIME
10 AS THE E.K.G.
11 Q. NOW, YOU'VE ALREADY TESTIFIED ABOUT DICTATING A REPORT,
12 THE EVALUATION. THAT WOULD HAVE BEEN ON THE 30TH; IS THAT
13 RIGHT?
14 A. YES. THE PSYCH EVAL AND THE DISCHARGE SUMMARY WERE BOTH
15 DONE THAT DAY WHEN I CAME IN.
16 Q. AND SPECIFICALLY WITH RESPECT TO THE PSYCH EVALUATION
17 THAT WAS DONE AFTER ELLEN ANDERSON HAD EXPIRED; IS THAT
18 RIGHT?
19 A. THE DICTATION WAS DONE, YEAH.
20 Q. TELL US WHY YOU WOULD HAVE DICTATED THAT REPORT ON HER
21 CONDITION EVEN THOUGH IT OCCURRED AFTER HER DEATH?
22 A. EVERY PATIENT HAS TO HAVE THAT. THAT'S PART OF MY DUTY
23 IS TO DO A PSYCHIATRIC EVALUATION, DICTATE SOMETHING ON
24 EVERY PATIENT. IT'S PART OF THE REQUIREMENTS FOR MEDICARE
25 AND EVERYTHING ELSE FOR HOSPITALIZATION THAT YOU DO THAT
3838
1 SORT OF REPORT AS A PSYCHIATRIST.
2 Q. NOW, WHAT RECOLLECTION DO YOU HAVE OF SEEING HER WHEN
3 SHE WAS ADMITTED TO THE HOSPITAL?
4 A. VERY LITTLE. IT WAS REALLY BRIEF.
5 Q. AND TELL US WHAT YOU RECALL.
6 A. I HAD TO COME UP THERE FROM MY OFFICE AND SEE HER
7 BRIEFLY TO GET HER CHECKED IN. MOST OF THIS I KNOW FROM MY
8 MENTAL STATUS EXAM THAT, YOU KNOW, SHE WAS SCREAMING. SHE
9 WAS INCOHERENT. IT WAS IMPOSSIBLE TO DO A FULL MENTAL
10 STATUS EXAM. I REMEMBER A LITTLE OLD LADY WHO WAS SCREAMING
11 AND THAT'S ABOUT IT.
12 Q. ROBERT, DO YOU BELIEVE THAT THE CARE THAT YOU PROVIDED
13 TO THESE FIVE PATIENTS WAS IN THEIR BEST INTERESTS?
14 A. YES, I DO.
15 Q. AND WOULD YOU TELL US, PLEASE, WHY YOU BELIEVE THAT?
16 A. WELL, I CERTAINLY HAVE NO REASON TO WANT TO HURT THEM.
17 I'M THERE TO HELP THEM. THAT'S WHAT I TRIED TO DO.
18 Q. AND DID YOU HAVE TO MAKE CLINICAL JUDGMENTS IN TERMS OF
19 WHAT WAS APPROPRIATE FOR THEIR CARE?
20 A. CERTAINLY. THAT'S WHAT IT'S ALL ABOUT.
21 Q. AND COULD YOU TELL US, PLEASE, OR GIVE US SOME EXAMPLES
22 OF THE KIND OF CLINICAL JUDGMENTS THAT YOU HAD TO MAKE?
23 A. DIAGNOSIS WHEN THEY FIRST CAME IN. MEDICATION
24 MANAGEMENT DECISIONS. SOME OF THE DECISIONS ON TRYING TO
25 TREAT MEDICAL PROBLEMS, ORDERING SWALLOWING EVALS AND LABS
3839
1 AND MEDICATIONS.
2 Q. DID THEIR MENTAL CONDITION AFFECT OR COMPLICATE YOUR
3 ABILITY TO MAKE JUDGMENTS IN TERMS OF CARE?
4 A. IT'S A LOT MORE COMPLICATED FOR DEMENTED PATIENTS. YOU
5 CAN'T JUST ASK THEM HOW ARE YOU FEELING OR WHAT ARE YOU
6 THINKING ABOUT. OR YOU CAN'T REALLY WATCH THE THOUGHT
7 PROCESS EXCEPT IN A VERY GROSS WAY. YOU CAN SEE THAT THEY
8 ARE BLOCKING ON EVERYTHING AND IT'S VERY LOOSE. BUT YOU
9 DON'T HAVE THOUGHT PROCESSES TO FOLLOW. SO YES, IT'S VERY
10 COMPLICATED.
11 Q. PARTICULARLY IN TERMS OF THE PAIN MEDICATION THAT WAS
12 PROVIDED AT THE END, DID THE FACT THAT THEY COULD NOT
13 COMMUNICATE EFFECTIVELY COMPLICATE THE DECISIONS YOU MADE?
14 A. COMPLETELY COMPLICATED THINGS.
15 Q. AND TELL US WHY IT DID.
16 A. I SIMPLY CAN'T ASK THEM HOW THEY WERE FEELING. I HAVE
17 TO GO BY SIGNS. PLUS THEY ARE DYING AND SO THERE ARE
18 FURTHER COMPLICATIONS. YOU CERTAINLY DON'T WANT TO GIVE TOO
19 MUCH MEDICATION. YOU DON'T WANT TO KILL SOMEBODY GIVING
20 MEDICATION YOU ARE TRYING TO HELP WITH. YOU WANT TO SUPPORT
21 THEM AND PREVENT SUFFERING, SO IT'S VERY COMPLICATED.
22 Q. WERE YOU AWARE AT THE END IN TERMS OF THE PAIN
23 MEDICATION THAT MORPHINE HAD AS A POTENTIAL SIDE EFFECT A
24 RESPIRATORY DEPRESSANT EFFECT?
25 A. THAT'S -- I'D BEEN TAUGHT THAT IS THE CENTRAL DANGEROUS
3840
1 SIDE EFFECT.
2 Q. AND DID YOU CONSIDER THAT IN TERMS OF THE MEDICATION
3 THAT YOU HAVE PROVIDED AT THE END OF EACH ONE OF THESE
4 PATIENT'S LIVES?
5 A. YES.
6 Q. AND WOULD YOU EXPLAIN HOW YOU CONSIDERED IT?
7 A. YES. I GAVE RATIONAL DOSES AND I USED MY KNOWLEDGE AND
8 WHAT I COULD LOOK UP TO GIVE DOSES THAT I FELT WOULD BE
9 APPROPRIATE WHICH WOULDN'T CAUSE RESPIRATORY DEPRESSION.
10 AND I'M AWARE THAT THE NURSES ARE THERE ALL THE TIME
11 MONITORING THE PATIENTS, AND IF SOMETHING GOES WRONG WE HAVE
12 MEDICATION CALLED NARCAN WE CAN GIVE TO REVERSE THE EFFECTS.
13 AND IT'S SOMETHING THAT'S ON MY MIND. I HAVE TO BALANCE
14 THAT WITH THE NEED TO PREVENT SUFFERING AND PAIN.
15 Q. DID YOU HAVE A PLAN FOR THESE PATIENTS DURING AND AFTER
16 THE TIME YOU DETERMINED THAT THEY WERE DYING?
17 A. YES.
18 Q. AND TELL US WHAT THAT WAS.
19 A. THE PLAN WAS THAT THEY HAVE A PAIN-FREE DIGNIFIED DEATH.
20 Q. AND DID YOU FEEL THAT YOU HAD SOME ETHICAL DUTY TO
21 PROVIDE ADEQUATE RELIEF FROM PAIN AT THE TIME OF THEIR
22 DEATH?
23 A. ABSOLUTELY, YES. I MEAN, I'M ETHICALLY BOUND BY
24 EVERYTHING I'VE EVER LEARNED AND BEEN TAUGHT. IT'S MY DUTY.
25 MR. STIRBA: THANK YOU. THAT'S ALL THE QUESTIONS I
3841
1 HAVE AT THIS TIME, JUDGE.
2 THE COURT: MR. WILSON.
3 MR. WILSON: YOUR HONOR, IF IT PLEASE THE COURT.
4 WOULD THERE BE A POSSIBILITY THAT WE COULD GO TO LUNCH SO I
5 COULD BEGIN MY CROSS-EXAMINATION WITHOUT INTERRUPTION?
6 THE COURT: WHAT DO YOU MEAN WITHOUT INTERRUPTION?
7 DO YOU MEAN WITHOUT INTERRUPTION DOING PART OF IT NOW AND
8 PART OF IT LATER?
9 MR. WILSON: YES.
10 THE COURT: ANY OBJECTION TO THAT?
11 MR. STIRBA: I'M NOT GOING TO OBJECT TO THAT,
12 JUDGE. WE'RE HERE, THOUGH, AND --
13 THE COURT: OKAY. OKAY. LADIES AND GENTLEMEN,
14 HERE'S WHAT WE'LL DO. LET'S COME BACK -- LET'S DO THIS.
15 WE'LL TAKE OUR BREAK NOW AND THEN WE'LL -- LET'S COME BACK
16 AT ONE P.M. INSTEAD OF FROM 12 TO 1:30, WE'LL COME BACK
17 AT -- IS THAT RIGHT, AT ONE O'CLOCK. DURING THIS TIME
18 REMEMBER IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR
19 TO CONVERSE WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY
20 OTHER PERSON ON THE SUBJECT OF THE TRIAL. IT'S YOUR DUTY
21 NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE IS FINALLY
22 SUBMITTED TO YOU. ALSO DURING THIS TIME REMEMBER NOT TO
23 LISTEN TO ANY RADIO OR TELEVISION BROADCASTS, ALSO ANY
24 NEWSPAPER OR MAGAZINE REPORTS. SO IF YOU'LL PLEASE COME
25 BACK THEN AT ONE P.M.
3842
1 (WHEREUPON, THE JURY LEAVES THE COURTROOM AT 11:30)
2 THE COURT: YOU CAN BE SEATED AND THE RECORD WILL
3 REFLECT THAT THE JURY HAS LEFT THE COURTROOM. DO YOU
4 ANTICIPATE, MR. WILSON, HOW LONG DO YOU THINK YOU'LL BE ON
5 CROSS-EXAMINATION?
6 MR. WILSON: IT'S SORT OF HARD TO TELL RIGHT NOW,
7 YOUR HONOR. I WOULD IMAGINE A COUPLE OF HOURS.
8 THE COURT: DO WE THINK WE'LL GET DONE TODAY WITH
9 THIS WITNESS?
10 MR. WILSON: I THINK SO.
11 THE COURT: AND THEN ARE THERE GOING TO BE ANY
12 OTHER WITNESSES?
13 MR. STIRBA: ONE SHORT SUMMARY WITNESS, YOUR HONOR,
14 AND THAT'S IT.
15 THE COURT: THAT WILL BE ALL ON THE DEFENSE.
16 MR. STIRBA: YES.
17 THE COURT: AND SO IS IT YOUR FEELING, MR. WILSON,
18 THAT JUST END WITH THEIR WITNESSES TODAY AND START REBUTTAL
19 TOMORROW?
20 MR. WILSON: WE WOULD PREFER THAT, YOUR HONOR.
21 THE COURT: THAT'S WHAT OUR PLAN WILL BE.
22 HOPEFULLY WE'LL GET THIS WITNESS AND THE NEXT ONE DONE.
23 WE'LL SEE YOU BACK AT ONE O'CLOCK.
24 (COURT IN RECESS.)
25
3843
1 (WHEREUPON THE AFTERNOON SESSION BEGAN.)
2 THE COURT: WILL YOU PLEASE BE SEATED? THE RECORD
3 WILL REFLECT THAT THE PARTIES ARE PRESENT, THE DEFENDANT IS
4 ON THE STAND, AND THE JURY HAS RETURNED. MR. WILSON.
5 MR. WILSON: THANK YOU, YOUR HONOR.
6 CROSS-EXAMINATION
7 BY MR. WILSON:
8 Q. GOOD AFTERNOON, DOCTOR.
9 A. GOOD AFTERNOON.
10 Q. I JUST WANTED TO FOLLOW UP WITH A FEW QUESTIONS ABOUT
11 YOUR TESTIMONY AT THE CONCLUSION OF DIRECT. YOU WERE
12 TALKING ABOUT THAT IN RESPECT TO THIS TYPE OF PATIENT,
13 CLINICAL JUDGMENTS ARE DIFFICULT TO MAKE. WOULD THAT BE A
14 FAIR STATEMENT?
15 A. YES, SIR.
16 Q. AND IN THAT PROCESS OF MAKING THOSE JUDGMENTS, YOU
17 INDICATED MANY TIMES IN YOUR TESTIMONY THAT BECAUSE OF THE
18 DIFFICULTY IN EVALUATION, YOU'RE REQUIRED TO RELY ON OTHER
19 HISTORIES, DOCUMENTS, NURSES' NOTES, YOU'RE REQUIRED TO
20 OFTTIMES TO TALK WITH OTHER TREATING PHYSICIANS, IS THAT
21 CORRECT?
22 A. IT'S VERY HELPFUL. NOT REQUIRED, BUT CERTAINLY HELPFUL.
23 Q. OKAY. SO THAT WOULD BE HELPFUL IN THIS PARTICULAR
24 CONTEXT.
25 A. YES, SIR.
3844
1 Q. AND IT'S MAINLY BECAUSE WHAT WE'RE TALKING ABOUT IS A
2 PATIENT WHO DOES NOT HAVE THE ABILITY TO ASSIST YOU VERY
3 MUCH IN TERMS OF BEING ABLE TO MAKE YOUR JUDGMENTS RELATIVE
4 TO PAIN OR RELATIVE TO ANY TYPE OF COMPLAINT THAT THEY MAY
5 HAVE, IS THAT ACCURATE?
6 A. THEY HAVE A REAL HARD TIME, SURE.
7 Q. OKAY. SO WOULD IT BE A FAIR STATEMENT TO SAY THAT IN
8 THAT CONTEXT, A PHYSICIAN WHO HAS A PATIENT OF THAT DEGREE
9 OF DEHABILITATION (SIC) OR ONE WHO IS NOT MENTALLY COMPETENT
10 TO RESPOND TO YOU APPROPRIATELY, WOULD IT BE FAIR TO SAY IN
11 THAT CONTEXT THAT A PHYSICIAN SHOULD ERR ON THE SIDE OF
12 CAUTION?
13 A. YES, SIR, IT WOULD.
14 Q. OKAY. AND SO IN DOING THAT, I ASSUME THAT A PHYSICIAN
15 WOULD NEED THEN TO -- TO EXERCISE THAT CAUTION IN -- IN NOT
16 ONLY THE ADMINISTRATION OF MEDICATIONS, BUT ALSO IN TERMS OF
17 GATHERING TOGETHER INFORMATION THAT MIGHT MAKE HIM OR ASSIST
18 HIM IN MAKING A MORE APPROPRIATE DECISION AS TO THE CARE AND
19 TREATMENT OF THAT PATIENT. IS THAT TRUE?
20 A. I BELIEVE YOU'RE RIGHT.
21 Q. OKAY. FEW OTHER QUESTIONS IN THAT LINE. AS A
22 PHYSICIAN, YOU TAKE AN OATH, IS THAT RIGHT?
23 A. YES, SIR.
24 Q. AND I DON'T KNOW THE WORDS OF THAT OATH, BUT I ASSUME
25 THAT THE WORDS PERTAINING TO ESSENTIALLY YOU HAVE A TRUST
3845
1 THAT DEVELOPS BETWEEN YOU AND A PATIENT, IS THAT CORRECT?
2 A. YES, SIR.
3 Q. AND IN THIS CONTEXT THAT WE'VE BEEN TALKING ABOUT, THAT
4 TRUST EXPANDS EVEN FURTHER, DOES IT NOT, WHERE YOU'VE GOT A
5 PATIENT WHO REALLY CAN'T COMMUNICATE WITH YOU, THERE NEEDS
6 TO BE A TRUST BETWEEN THE PATIENT OR BETWEEN THE FAMILY
7 MEMBERS AND THE PHYSICIAN, IS THAT CORRECT?
8 A. I WOULD HOPE THERE WOULD BE, YES, SIR.
9 Q. AND THE PHYSICIAN IS REALLY IN A SITUATION WHERE THERE
10 IS NO ABILITY FOR EITHER THE PATIENT OR THE FAMILY MEMBER TO
11 REALLY EVALUATE OR SECOND-GUESS THE CARE OF THE TREATING
12 PHYSICIAN. WOULD THAT BE A FAIR STATEMENT?
13 A. I WOULD AGREE WITH THAT WITH RESPECT TO THE PATIENT IN
14 THESE CASES. I CAN'T AGREE WITH THAT WITH RESPECT TO THE
15 FAMILY MEMBER.
16 Q. OKAY. NOW, OBVIOUSLY, A FAMILY MEMBER, UNLESS THEY WERE
17 A PHYSICIAN THEMSELVES, WOULDN'T HAVE THE KNOWLEDGE THAT YOU
18 HAVE, IS THAT CORRECT?
19 A. THEY WOULDN'T HAVE ALL THE MEDICAL KNOWLEDGE I WOULD
20 HAVE, THAT WOULD BE CORRECT.
21 Q. OKAY. THEY WOULDN'T BE ABLE TO EVALUATE THE TESTS OR TO
22 LOOK AT THE CHARTS AND DETERMINE WHAT MAY BE PHYSICALLY
23 WRONG WITH THEIR -- WITH THEIR PARTICULAR LOVED ONE, WOULD
24 THEY?
25 A. THEY WOULD HAVE TO DEPEND ON ME TO MAKE THAT JUDGMENT.
3846
1 Q. OKAY. AND THEY WOULD HAVE TO DEPEND ON YOU IN RESPECT
2 TO SIMILAR SITUATIONS SUCH AS IF YOU WERE TO SIT DOWN AND
3 ADVISE THEM THAT THE PATIENT WAS SUFFERING FROM A CERTAIN
4 TYPE OF DISEASE PROCESS, WHAT THE ALTERNATIVES ARE AVAILABLE
5 FOR TREATMENT OF THAT, WOULDN'T THEY?
6 A. YES, SIR.
7 Q. NOW, THEY COULD ALWAYS SEEK A SECOND OPINION, IS THAT
8 CORRECT?
9 A. CERTAINLY.
10 Q. IF THEY -- IF THEY WANTED TO, TO GET ANOTHER DOCTOR TO
11 CONFIRM WHAT YOU HAD TOLD THEM, IS THAT CORRECT?
12 A. YES, SIR.
13 Q. OKAY. SO IN THAT CONTEXT, DOCTOR, DO YOU BELIEVE THAT
14 IN GENERAL, A FAMILY MEMBER WHO FINDS THEMSELF IN A
15 PARTICULAR CIRCUMSTANCE AS THIS ONE, THAT NORMALLY THEY'RE
16 GOING TO RELY AND THEY'RE GOING TO TRUST IN YOUR MEDICAL
17 JUDGMENT, ARE THEY NOT?
18 A. COULD YOU BE A LITTLE MORE SPECIFIC?
19 Q. WELL, OKAY. I'LL TRY TO BE MORE SPECIFIC. LET'S GO FOR
20 AN EXAMPLE, LET'S SAY YOU SIT DOWN WITH A FAMILY AS YOU HAVE
21 ON A NUMBER OF OCCASIONS IN THIS PARTICULAR PROCEEDING THAT
22 YOU'VE TESTIFIED TO. AND YOU SAY TO THEM, I'M SORRY, BUT
23 YOUR MOTHER'S DYING. NOW, ARE THEY GOING TO MISTRUST YOUR
24 JUDGMENT AT THAT POINT? ARE THEY GONNA TRUST YOUR JUDGMENT
25 AT THAT POINT?
3847
1 A. I THINK THEY'RE GONNA TEND TO TRUST IT.
2 Q. OKAY. AND THAT'S BECAUSE YOU'RE THE DOCTOR, RIGHT?
3 A. RIGHT.
4 Q. YOU'RE THE MAN WHO'S IN CHARGE.
5 A. CORRECT.
6 Q. AND THEY'RE GONNA VALUE THAT DECISION. SO IN THIS
7 CONTEXT, IS IT HARD TO UNDERSTAND WHY A FAMILY MEMBER WOULD
8 SAY TO YOU, I WANT TO GIVE MY MOTHER COMFORT CARE, I WANT
9 HER TO BE MADE COMFORTABLE?
10 A. NO, I DON'T THINK IT IS.
11 Q. IN FACT, THAT'S THE ANSWER YOU WOULD EXPECT, ISN'T IT?
12 A. NOT NECESSARILY.
13 Q. DID YOU GET ANY OTHER ANSWER THAN THAT IN THIS
14 PARTICULAR PROCEEDING WITH THESE FOUR -- AT LEAST FOUR OF
15 THESE PATIENTS?
16 A. I DIDN'T.
17 Q. OKAY. AGAIN, THE FAMILY HAS NO WAY TO EVALUATE FROM A
18 MEDICAL STANDPOINT WHETHER OR NOT YOU'RE TELLING THEM THE
19 TRUTH OR NOT, DO THEY?
20 A. WELL, IN THESE CASES, THEY DID HAVE OTHER SOURCES OF
21 INFORMATION, SO I'D HAVE TO DISAGREE WITH YOU THERE.
22 Q. WHAT OTHER SOURCES OF INFORMATION DID THEY HAVE?
23 A. THE OTHER DOCTORS. EACH OF THESE PATIENTS HAD A
24 CONSULTING MEDICAL DOCTOR, EITHER INTERNIST OR FAMILY
25 PRACTITIONER. THEY COULD TALK WITH THE OTHER NURSES. ALL
3848
1 THE NURSES ON STAFF. THE SOCIAL WORKERS WERE PRIVY TO THE
2 INFORMATION.
3 Q. OKAY.
4 A. BASICALLY, THE WHOLE TEAM KNEW WHAT WAS GOING ON, SO
5 THEY COULD HAVE TALKED WITH ANYBODY. I WAS THE MEDICAL
6 DOCTOR IN CHARGE, THE ATTENDING, AND SO IT WOULD HAVE BEEN
7 NATURAL FOR THEM TO SPEAK WITH ME ALSO.
8 Q. OKAY. BUT WOULD THEY HAVE ANY REASON TO GO TO ANY OF
9 THE OTHER DOCTORS? OR THE CARETAKERS?
10 A. WELL, I GUESS YOU'D HAVE TO ASK THEM THAT, BUT --
11 Q. OKAY. AS I UNDERSTAND IT, YOU GRADUATED FROM -- IN
12 NOVEMBER -- EXCUSE ME, YOU GRADUATED BACK IN 1986 FROM
13 MEDICAL SCHOOL.
14 A. RIGHT.
15 Q. HOW MANY YEARS WERE YOU IN MEDICAL SCHOOL?
16 A. FOUR.
17 Q. AND WHERE DID YOU GO TO MEDICAL SCHOOL AGAIN?
18 A. AT SOUTHWESTERN MEDICAL SCHOOL IN DALLAS, TEXAS.
19 Q. AND AFTER GRADUATING FROM MEDICAL SCHOOL, YOU WENT ON TO
20 INTERNSHIP IN PSYCHIATRY?
21 A. RESIDENCY --
22 Q. RESIDENCY.
23 A. -- WHICH INCLUDES INTERNSHIP AS THE FIRST YEAR.
24 Q. AND HOW LONG WERE YOU IN RESIDENCY FOR?
25 A. TOTAL OF FOUR YEARS.
3849
1 Q. AND WHERE WAS THAT AT?
2 A. TWO YEARS AT DALLAS, TEXAS THROUGH TIMBERLONG HOSPITAL
3 AND BAYLOR HOSPITAL, AND TWO YEARS AT THE UNIVERSITY OF
4 CALIFORNIA, SAN DIEGO, IN SAN DIEGO.
5 Q. OKAY. ARE YOU BOARD CERTIFIED IN PSYCHIATRY?
6 A. YES.
7 Q. WHEN DID YOU RECEIVE YOUR BOARD CERTIFICATION?
8 A. MAY OF 1994.
9 Q. PRIOR TO -- OR SUBSEQUENT TO GETTING YOUR BOARD
10 CERTIFICATION, WHERE DID YOU WORK, SIR?
11 MR. STIRBA: YOUR HONOR, I'M GONNA OBJECT AS BEYOND
12 THE SCOPE AND ALSO AS TO RELEVANCY.
13 MR. WILSON: I THINK, YOUR HONOR, THAT I OUGHTA BE
14 ABLE TO EXPLORE HIS EXPERIENCE --
15 THE COURT: OVERRULED.
16 MR. WILSON: -- AS IT RELATES TO GERIATRIC PATIENTS
17 AND --
18 THE COURT: I SAID OVERRULED.
19 MR. WILSON: OH, EXCUSE ME. I DIDN'T HEAR YOU,
20 JUDGE.
21 THE WITNESS: MR. WILSON, COULD YOU ASK THAT AGAIN?
22 I KIND OF GOT LOST.
23 Q. (BY MR. WILSON) WHERE DID YOU GO TO WORK AFTER
24 GRADUATING -- OR EXCUSE ME, AFTER BECOMING BOARD CERTIFIED?
25 A. WELL, I WAS WORKING AT THE TIME IN WEST VALLEY CITY AT
3850
1 THE HOSPITAL THERE AND IN MY PRIVATE OFFICE THERE.
2 Q. OKAY. SO YOU MAINTAINED A PRIVATE OFFICE IN WEST
3 VALLEY?
4 A. RIGHT.
5 Q. OKAY. DID YOU HAVE ANY OTHER CONTRACTS WITH ANY OTHER
6 HOSPITALS OR CLINICS AT THAT TIME?
7 A. THAT WOULD HAVE BEEN MAY '94? I BELIEVE I WAS WITH
8 VALLEY MENTAL HEALTH ALSO IN OUTPATIENT CLINICAL PRACTICE.
9 Q. OKAY. AND YOU -- WELL, BEFORE I GET TO THERE, DID A
10 SUBSTANTIAL PART OF YOUR MEDICAL DEGREE STUDIES OR WAS THERE
11 A SIGNIFICANT PART OF YOU MEDICAL DEGREE STUDIES THAT
12 CONCERNED THE PHARMACOLOGY, DRUGS?
13 A. MEDICAL DEGREE?
14 Q. UH-HUH.
15 A. YES.
16 Q. OKAY. SO YOU LEARNED ABOUT THOSE EFFECTS AND THE --
17 BOTH THE EFFECTS OF THE DRUGS AND THE RISKS OF THE DRUGS AT
18 THAT TIME?
19 A. IN MEDICAL SCHOOL, YES --
20 Q. OKAY.
21 A. -- AND IN RESIDENCY ALSO.
22 Q. AND THEN WHEN YOU WENT ON TO YOUR PSYCHIATRIC TRAINING,
23 DID A SUBSTANTIAL PART OF THAT RELATE TO THE ADMINISTRATION
24 OF ESPECIALLY CERTAIN PSYCHOTROPIC MEDICATIONS?
25 A. YES, SIR.
3851
1 Q. AND ALSO AS TO THEIR SIDE EFFECTS THAT COULD BE
2 DEMONSTRATED AS FAR AS THAT GOES.
3 A. YES, SIR.
4 Q. OKAY. AND AS I -- AS YOU'VE TESTIFIED, I THINK YOU
5 INDICATED THAT IN THE SETTING AT THE GEROPSYCH UNIT AT THE
6 DAVIS HOSPITAL, YOU WERE PRIMARILY THERE FOR A BIOLOGICAL
7 PSYCHIATRY?
8 A. MEDICATION MANAGEMENT.
9 Q. OKAY. SO YOU DIDN'T ENGAGE IN THE THERAPEUTIC ASPECTS
10 OF PSYCHIATRY IN THE HOSPITAL SETTING?
11 A. WELL, AS PART OF SEEING PATIENTS, THAT'S
12 PSYCHOTHERAPEUTICALLY BASED, BUT I DID NOT ENGAGE IN
13 PSYCHOTHERAPY PER SE. GROUP THERAPY, FAMILY THERAPY, AND
14 ALMOST ALL INDIVIDUAL THERAPY WAS DONE THROUGH THE FAMILY
15 THERAPIST SOCIAL WORKERS.
16 Q. DID YOU OVERSEE THAT ASPECT OF IT?
17 A. YES, SIR.
18 Q. BUT YOU DID NOT PARTICIPATE IN IT ON A DAY-TO-DAY BASIS.
19 A. NO, SIR.
20 Q. YOUR PRIMARY FUNCTION WAS THEN TO OVERSEE THE
21 MEDICATIONS THAT WERE BEING ADMINISTERED TO THESE PATIENTS?
22 A. AND OVERSEE THE THERAPISTS AND THE NURSING, SORT OF PULL
23 TOGETHER THE ENTIRE MEDICAL HISTORY AND CONDITION OF THE
24 PATIENT AND GO FROM THERE.
25 Q. OKAY. BACK IN I THINK YOU SAID NOVEMBER OF 1994 IS WHEN
3852
1 YOU FIRST BECAME AFFILIATED WITH THE DAVIS HOSPITAL?
2 A. YES, SIR.
3 Q. DID YOU ENTER INTO A CONTRACT AT THAT TIME WITH HORIZONS
4 CORPORATION?
5 A. YES, SIR, I BELIEVE I DID.
6 Q. AND CAN YOU TELL ME, SIR, IN RESPECT TO THAT CONTRACT,
7 IT'S TRUE THAT -- WELL, ACTUALLY, THAT CONTRACT, WAS THAT
8 MADE IN MARCH OF 1995?
9 A. I KNOW THERE WAS ONE MADE IN MARCH OF 1995 WHEN I WAS
10 MADE ASSOCIATE MEDICAL DIRECTOR.
11 Q. OKAY.
12 A. I'M FAIRLY CERTAIN THAT THERE WAS ONE MADE IN NOVEMBER
13 OF '94 WHEN I FIRST BECAME AFFILIATED WITH THE UNIT, SORT OF
14 AS A HELPER FOR DR. JENSEN.
15 Q. SO FIRST OF ALL, YOU CAME ON IN ASSISTANT CAPACITY TO
16 DR. WELBY JENSEN, IS THAT RIGHT?
17 A. PART TIME I GUESS YOU COULD SAY.
18 Q. PART TIME. NOW, YOU WERE STILL MAINTAINING YOUR
19 PRACTICE, YOUR PRIVATE PRACTICE?
20 A. YES, SIR.
21 Q. AND YOU WERE STILL MAINTAINING YOUR PRACTICE WITH VALLEY
22 MENTAL HEALTH?
23 A. I'M NOT REAL CLEAR ON DETAILS OF THAT RIGHT NOW. I
24 THINK IN NOVEMBER I WAS -- YES, I BELIEVE I WAS STILL WITH
25 VALLEY MENTAL HEALTH.
3853
1 Q. OKAY. DID YOU -- AND YOU SUBSEQUENTLY EXPANDED ON THAT
2 PARTICULAR JOB WITH THE DAVIS HOSPITAL, IS THAT RIGHT?
3 A. YES, SIR.
4 Q. AND FACT, IT WAS AT THIS TIME THAT AS DR. WELBY JENSEN
5 TESTIFIED TO, YOU WERE ANXIOUS TO PICK UP MORE CLIENTELE AND
6 HE WAS WILLING TO GIVE UP THE CLIENTELE, ISN'T THAT CORRECT?
7 A. WELL, I WOULD SAY HE WAS ANXIOUS TO GIVE THEM UP AND I
8 WAS WILLING TO TAKE THEM.
9 Q. OKAY. WHAT TYPE OF PAYMENT ARRANGEMENTS WERE MADE AT
10 THAT TIME WITH YOU AND THE HOSPITAL?
11 A. THERE WERE NONE BETWEEN ME AND THE HOSPITAL.
12 Q. OKAY. BETWEEN YOU AND HORIZONS?
13 A. I DON'T REMEMBER THE DETAILS OF THE INITIAL CONTRACT.
14 BUT I WAS HIRED AS ASSISTANT MEDICAL DIRECTOR WITH DUTIES TO
15 CONSIST OF 16 HOURS A MONTH FOR ADMINISTRATIVE TYPE DUTIES
16 FOR HORIZON.
17 Q. SO WHEN YOU WERE HIRED AS ASSISTANT MEDICAL DIRECTOR IN
18 MARCH OF 1995, DID THOSE PAYMENTS ARRANGEMENTS CHANGE AT
19 THAT TIME?
20 A. WELL, SEE, I DON'T REMEMBER THE CONTRACT. IT WAS DONE
21 IN NOVEMBER OF '94, SO I CAN'T REALLY SAY, BUT I DO KNOW
22 THAT WHEN I WAS MADE ASSOCIATE MEDICAL DIRECTOR, THERE WAS A
23 CONTRACT IN WHICH I WAS HIRED AS ASSOCIATE MEDICAL DIRECTOR
24 AND PAID FOR 16 HOURS A MONTH ADMINISTRATIVE TIME.
25 Q. MAY I HAVE THIS MARKED? AT THAT TIME YOU ENTERED INTO A
3854
1 WRITTEN CONTRACT, IS THAT CORRECT?
2 A. WHICH TIME?
3 Q. IN MARCH.
4 A. YES, SIR.
5 Q. AT THAT TIME YOU BECAME AN ASSOCIATE MEDICAL DIRECTOR?
6 A. ASSOCIATE OR ASSISTANT, ONE.
7 Q. OKAY.
8 A. THINK IT WAS ASSOCIATE.
9 Q. AS I UNDERSTAND IT, DOCTOR, YOU WERE PAID A CERTAIN FEE
10 UPON ADMISSION OF A PATIENT AND YOU WERE ALSO ALLOWED TO
11 BILL INDEPENDENTLY FOR SERVICES RENDERED TO THAT PATIENT, IS
12 THAT RIGHT?
13 A. YES, SIR.
14 Q. OKAY. I SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT
15 44. ASK YOU TO TAKE A LOOK THAT THE EXHIBIT IF YOU WOULD
16 PLEASE.
17 A. ANY PARTICULAR PLACE?
18 Q. THERE'S A PAGE -- WELL, FIRST OF ALL, WHAT DATE -- WHAT
19 IS THAT DOCUMENT?
20 A. IT'S TITLED ASSOCIATE MEDICAL DIRECTOR SERVICES
21 AGREEMENT.
22 Q. AND WHAT DATE DOES IT BEAR?
23 A. IT'S AN AGREEMENT MADE THIS 22ND DAY OF MARCH 1995,
24 SHALL COMMENCE APRIL 3RD, 1995.
25 Q. WOULD YOU TAKE A LOOK AT THE LAST PAGE WHICH IS
3855
1 DESIGNATED AS PAGE 9?
2 A. PAGE 9.
3 Q. DOES THAT BEAR YOUR SIGNATURE?
4 A. YES, IT DOES.
5 Q. OKAY. DO YOU RECALL SIGNING THAT DOCUMENT?
6 A. NOT INDEPENDENTLY, BUT IT'S MY SIGNATURE.
7 Q. OKAY. NOW, I WANT YOU TO TURN TO PAGE -- IT'S PAGE 3,
8 IF YOU WILL. IT'S MARKED THERE AND THERE IS A PARAGRAPH
9 4 --
10 THE COURT: ARE YOU GOING TO OFFER THIS?
11 MR. WILSON: I AM.
12 THE COURT: OKAY. IS THERE ANY OBJECTION?
13 MR. STIRBA: RELEVANCY, YOUR HONOR.
14 MR. WILSON: I THINK IT GOES TO THE KNOWLEDGE AND
15 INTENT, YOUR HONOR. THERE'S CERTAIN PARAGRAPHS IN THERE
16 THAT REFLECT I THINK ON THE STATE'S CASE.
17 THE COURT: IT'S RECEIVED.
18 MR. WILSON: THANK YOU.
19 Q. THAT PHOTOGRAPH TALKS ABOUT DUTIES AND ADMINISTRATIVE
20 RELATIONSHIPS, DOES IT NOT?
21 A. IT SAYS NUMBER 4, DUTIES AND ADMINISTRATIVE
22 RELATIONSHIPS.
23 Q. OKAY. I WANT YOU TO READ DOWN UNDER GENERAL, WHAT YOUR
24 DUTIES ARE.
25 A. UNDER SUBSECTION A.?
3856
1 Q. YES.
2 A. GENERAL, PHYSICIAN SHALL BE UNDER THE DIRECTION OF THE
3 HORIZONS REGIONAL VICE-PRESIDENT WITH RESPECT TO
4 ADMINISTRATIVE MATTERS AND SHALL BE RESPONSIBLE TO HORIZON
5 FOR ABIDING BY THE ADMINISTRATIVE REGULATIONS OF THE
6 HOSPITAL. IN ADDITION, PHYSICIAN SHALL BE RESPONSIBLE TO
7 HORIZON ASSISTING IN THE DEVELOPMENT OF ADMINISTRATION -- OR
8 I'M SORRY, ADMINISTRATIVE REGULATIONS AS THEY PERTAIN TO HIS
9 RESPONSIBILITIES HEREUNDER, AND FOR COOPERATING WITH THE
10 PROGRAM DIRECTOR OF THE UNIT IN THE EFFECTIVE MANAGEMENT OF
11 THE UNIT. ALSO, PHYSICIAN AGREES TO COMPLY WITH THE
12 POLICIES, RULES, AND REGULATIONS OF BOTH THE HOSPITAL AND
13 THE UNIT.
14 IS THAT ENOUGH?
15 Q. THAT'S IT. YOU APPLIED FOR PRIVILEGES AT THE HOSPITAL
16 AROUND THAT TIME, DID YOU NOT?
17 A. WOULD HAVE HAD TO APPLY BACK IN NOVEMBER WHEN I STARTED
18 WORKING THERE, AND THIS WAS IN MARCH, SIX MONTHS LATER.
19 Q. OKAY. CAN YOU TELL US, DOCTOR, WHAT DOES IT MEAN TO BE
20 GRANTED PRIVILEGES AT THE HOSPITAL?
21 A. THAT MEANS THAT THE HOSPITAL IS ALLOWING YOU TO PRACTICE
22 THERE.
23 Q. AS I UNDERSTAND IT, THE APPLICATION PROCESS IS IN TWO
24 PARTS, IS THAT CORRECT?
25 A. I DON'T KNOW.
3857
1 Q. LET ME SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT
2 45, AND ASK YOU TO IDENTIFY THAT.
3 A. HUMANA HOSPITAL DAVIS NORTH DEPARTMENT OF MEDICINE,
4 APPLICATION FOR CLINICAL PRIVILEGES.
5 Q. OKAY. DO YOU RECOGNIZE THAT DOCUMENT?
6 A. WELL, HAVE TO LOOK AT IT. KIND OF A LONG ONE, BUT I
7 RECOGNIZE IT.
8 Q. HAVE YOU SEEN IT BEFORE, SIR?
9 A. YES, I'VE SIGNED IT.
10 Q. OKAY. IN FACT, IT'S IN TWO PARTS, IS IT NOT? THE FIRST
11 IS THE APPLICATION FOR CLINICAL PRIVILEGES, AND HALFWAY
12 THROUGH THERE'S AN APPLICATION FOR MEDICAL STAFF APPOINTMENT
13 AND CLINICAL PRIVILEGES?
14 A. YES.
15 Q. OKAY.
16 A. YOU'VE GOT THEM STAPLED TOGETHER.
17 MR. WILSON: WE'D OFFER THIS IN ALSO, YOUR HONOR,
18 AT THIS TIME.
19 MR. STIRBA: MAY I SEE THE DOCUMENT PLEASE?
20 MR. WILSON: OH, I'M SORRY, COUNSEL.
21 THE COURT: IS THERE ANY OBJECTION?
22 MR. STIRBA: YOUR HONOR, THERE IS. IT'S A
23 RELEVANCY OBJECTION. BEYOND THE SCOPE. AND ALSO BEFORE
24 THIS IS USED EXTENSIVELY, IS THIS SOMETHING I COULD HAVE A
25 CHANCE TO REVIEW FURTHER? I MEAN, I'VE NEVER SEEN IT
3858
1 BEFORE.
2 THE COURT: OKAY. WHY DON'T WE -- CAN YOU GO ON TO
3 SOMETHING ELSE AND THEN WE CAN ADDRESS THAT AT THE BREAK?
4 MR. WILSON: I THINK, YOUR HONOR, IN RESPECT TO
5 THIS LINE OF QUESTIONING, IT'S IMPORTANT -- AND THERE'S
6 ANOTHER DOCUMENT PERHAPS I CAN GIVE TO COUNSEL, PREVIOUSLY
7 PROVIDED, THAT I THINK IS ON POINT AT THIS TIME. BUT I
8 THINK IT PERTAINS TO --
9 THE COURT: WELL, WHAT IS THE OTHER -- WHY DON'T
10 YOU HAVE HIM IDENTIFY IT AND THEN SHOW IT TO OPPOSING
11 COUNSEL.
12 MR. WILSON: COUNSEL'S ALREADY SEEN THIS PARTICULAR
13 EXHIBIT. OUCH. AND I DON'T KNOW WHETHER THE COURT WANTS TO
14 TAKE A SHORT RECESS WHILE WE --
15 THE COURT: WELL, WHY DON'T YOU HAVE THE WITNESS
16 IDENTIFY IT AND THEN --
17 MR. WILSON: WELL, I THINK ON THIS ONE, YOUR HONOR,
18 IT'S -- IT'S NOT PERTAINING TO HIS IDENTIFICATION. THIS IS
19 A HOSPITAL POLICY.
20 THE COURT: OKAY. LADIES AND GENTLEMEN, I THINK
21 WHAT WE'RE GOING TO NEED TO DO IS JUST TAKE A SHORT BREAK TO
22 ADDRESS THIS ISSUE SO THAT WE CAN GO ON.
23 (AFTER ADMONISHING THE JURY, THE COURT
24 EXCUSED THE JURY FROM THE COURTROOM)
25 THE COURT: OKAY. YOU MAY BE SEATED. THE RECORD
3859
1 WILL REFLECT THAT THE JURY HAS LEFT THE COURTROOM. OKAY.
2 FIRST OF ALL AS TO EXHIBIT, PLAINTIFF'S EXHIBIT 45, WHAT
3 EXACTLY IS THAT?
4 MR. WILSON: THAT, YOUR HONOR, IS -- IS
5 DR. WEITZEL'S APPLICATION FOR -- FOR CLINICAL PRIVILEGES AT
6 THE DAVIS HOSPITAL. AND ALSO, HIS SPECIFIC APPLICATION FOR
7 STAFF PRIVILEGES THERE AND WHICH SETS FORTH A NUMBER OF
8 PROVISIONS THAT I WANTED TO GO THROUGH WITH HIM THAT PERTAIN
9 TO WHAT LEVEL HE WAS ENTITLED TO PRIVILEGES FOR, WHAT AREAS
10 HE WAS ENTITLED TO PRACTICE AT THE HOSPITAL, AND ALSO TO
11 INQUIRE INTO THE PROVISION AS TO HIS AGREEMENT TO ABIDE BY
12 HOSPITAL POLICIES AND REGULATIONS.
13 EXHIBIT, STATE'S EXHIBIT NUMBER 46, WHICH IS
14 ORIGINALLY MARKED EXHIBIT 1 IS THE HOSPITAL-WIDE GUIDELINES
15 AND DIRECTIVES AS IT RELATES TO ADVANCE DIRECTORS AND D.N.R.
16 GUIDELINES WHICH ARE A PART OF THE HOSPITAL POLICY. I WOULD
17 SUBMIT TO THE COURT THAT IN THE CONTEXT --
18 THE COURT: YOU SAY PLAINTIFF'S EXHIBIT 1?
19 MR. WILSON: PARDON?
20 THE COURT: DO YOU SAY THAT WAS PLAINTIFF'S EXHIBIT
21 1?
22 MR. WILSON: IT USED TO BE, BUT IT'S NOW MARKED
23 EXHIBIT 46. I'LL JUST HAND IT TO THE COURT AT THIS TIME.
24 THE COURT: OKAY. AND WHAT -- OKAY. WHAT DO YOU
25 CLAIM, FIRST OF ALL, ON PLAINTIFF'S EXHIBIT 45 TO BE THE
3860
1 RELEVANCE? I UNDERSTAND THAT'S THE OBJECTION.
2 MR. WILSON: IN THE CONTEXT OF THE DOCTOR
3 PRACTICING AT THE HOSPITAL, HE HAS AGREED IN SEVERAL
4 DOCUMENTS TO ABIDE BY HOSPITAL GUIDELINES AND POLICIES.
5 THOSE POLICIES REFLECT DIRECTLY ON HIS CARE AND TREATMENT OF
6 THESE PATIENTS. THERE'S SEVERAL PROVISIONS IN THE HOSPITAL
7 POLICIES AND GUIDELINES THAT I WOULD SUBMIT TO THE COURT
8 PERTAIN TO STANDARD OF CARE AS IT RELATES TO HOW HE WAS
9 SUPPOSED TO ADMINISTER THE ADVANCE DIRECTIVES. AND I WOULD
10 SUBMIT ALSO, YOUR HONOR, THAT PART OF THOSE OR AT LEAST SOME
11 OF THOSE ADVANCE DIRECTIVES WERE ADVANCE DIRECTIVES THAT
12 WERE PART OF THE DAVIS HOSPITAL PROCEDURES, AND WERE
13 IMPLEMENTED PURSUANT TO THEIR POLICIES AND IN CONFORMANCE
14 WITH THOSE POLICIES.
15 THE COURT: OKAY. AND SO --
16 MR. WILSON: WE FEEL IT GOES TO HIS KNOWLEDGE, IT
17 GOES TO HIS INTENT IN TERMS OF HIS OMISSIONS FROM NOT
18 FOLLOWING THOSE GUIDELINES IN THIS PARTICULAR INSTANCE. WE
19 THINK THAT'S EVIDENCE WHICH DEMONSTRATES HIS INTENT TO NOT
20 HAVE -- PARTICULARLY NOT TO HAVE A SECOND PHYSICIAN CERTIFY
21 AS TO THE TERMINAL CONDITION OF THESE PARTICULAR PATIENTS.
22 THE COURT: OKAY. AND WHAT'S THE OBJECTION?
23 MR. STIRBA: FIRST WITH RESPECT TO THE PRIVILEGE
24 DOCUMENT, I OBJECT AS TO RELEVANCY BECAUSE WE HAD A
25 DISCUSSION BEFORE WITH THE COURT AS TO EXACTLY WHAT THE
3861
1 SCOPE OF THIS CASE WAS CONCERNING. AND THE RELEVANCY OF
2 HIS -- WHETHER OR NOT HE COMPLIED WITH HOSPITAL PRIVILEGES
3 IS NOT PERTINENT IN THIS CASE. THAT'S A EMPLOYMENT
4 CIRCUMSTANCE BETWEEN DR. WEITZEL AND THE HOSPITAL, IF HE
5 VIOLATED THOSE PRIVILEGES. THE RECORD EVIDENCE SHOWS THAT
6 NO ACTION WAS TAKEN BY DR. WEITZEL DURING THE PERTINENT TIME
7 PERIOD WITH RESPECT TO HIS PRIVILEGES. IN FACT, THERE NEVER
8 HAS BEEN ANY ACTION TAKEN BY THE HOSPITAL WITH RESPECT TO
9 HIM VIOLATING PRIVILEGES, AND THEREFORE, IT'S AN EXTRANEOUS
10 ISSUE TO BRING BEFORE THE COURT IN A FIRST DEGREE MURDER
11 CASE.
12 THAT'S POINT ONE. BUT I HAVE A MORE FUNDAMENTAL
13 PROBLEM. AND, YOU KNOW, THIS HAS BEEN THROUGHOUT THE CASE
14 AND HERE WE GO AGAIN. THIS DOCUMENT P-45, I'VE JUST SEEN
15 FOR THE FIRST TIME WHEN IT WAS PRESENTED TO ME ON
16 CROSS-EXAMINATION. IT'S A MULTI-PAGE DOCUMENT, AND GRANTED,
17 IT APPEARS TO BE SIGNED BY MY CLIENT, BUT I CAN'T POSSIBLY
18 DEAL WITH THIS IN ANY RATIONAL WAY FOR PURPOSES OF ANY KIND
19 OF REDIRECT OR DEALING WITH IT ON CROSS-EXAMINATION. IT
20 SHOULD HAVE BEEN PRODUCED WELL BEFORE THIS AND I SHOULDN'T
21 GET IT JUST IN THE MIDDLE OF CROSS-EXAMINATION OF
22 DR. WEITZEL, SO I'M ALSO CLAIMING UNFAIR SURPRISE.
23 NOW, WITH RESPECT TO THE OTHER DOCUMENT WHICH IS
24 P-46, THAT ALSO IS A RELEVANCY OBJECTION. AND BY THE WAY,
25 THIS IS BEYOND THE SCOPE AS WELL, YOUR HONOR, BOTH BECAUSE I
3862
1 DIDN'T ASK ONE QUESTION ABOUT PRIVILEGES OF DR. WEITZEL WITH
2 RESPECT TO THE DIRECT EXAMINATION. BUT IN TERMS OF
3 RELEVANCY, WE HAVE THE SAME PROBABLE. THIS IS AN ATTEMPT I
4 PRESUME TO SHOW THAT HE DID NOT OTHERWISE COMPLY WITH THESE
5 PARTICULAR POLICIES WHICH WERE IN EFFECT APPARENTLY AT THE
6 HOSPITAL AT THE TIME. SO WE HAVE THE SAME PROBLEM OF
7 RELEVANCY. FIRST, WE HAVE NO SHOWING, FOUNDATION, HE WAS
8 EVEN AWARE OF THESE. SECOND OF ALL, WE HAVE NO FOUNDATION
9 THAT HE EVEN REVIEWED THEM. THIRD OF ALL, WE HAVE NO
10 FOUNDATION THAT THE HOSPITAL ENFORCED THEM. AND FOURTH OF
11 ALL, THE RECORD EVIDENCE WILL BE THAT IN FACT HE WAS NEVER
12 DISCIPLINED BY THE HOSPITAL AS A RESULT OF ANYTHING THAT
13 OCCURRED IN JANUARY OF 1996 AND DECEMBER OF 1995. THESE
14 POLICIES WERE NEVER INVOKED AGAINST HIM AFTER THE HOSPITAL
15 CONDUCTED ITS MORTALITY REVIEW. SO THEY HAVE NO RELEVANCE
16 TO THIS PROCEEDING BECAUSE THEY'VE NEVER BEEN ENFORCED BY
17 THE HOSPITAL, AND IT SEEMS TO ME IT'S CLEARLY AN EMPLOYMENT
18 ISSUE VIS-A-VIS THE HOSPITAL AND DR. WEITZEL INSOFAR AS HE
19 EXCEEDED THE SCOPE OF HIS PRIVILEGES.
20 AND FINALLY, I ALSO HAVE THE SURPRISE OBJECTION.
21 THIS DOCUMENT I HAVE NEVER SEEN BEFORE. IT IS TRUE THAT
22 INITIALLY AT THE BEGINNING OF THIS CASE, THE STATE ATTEMPTED
23 TO INTRODUCE SOME POLICIES WHICH WERE RELEVANT TO THE
24 PERTINENT TIME PERIOD. THERE WAS A CONCERN EXPRESSED AS TO
25 WHETHER OR NOT THEY'RE EVEN APPLICABLE, AND I THINK
3863
1 MS. HEWARD WAS UNABLE TO SAY THAT IN FACT THEY WERE, SO THE
2 COURT EXCLUDED THOSE BECAUSE THERE WASN'T THE REQUISITE
3 FOUNDATION. THESE PARTICULAR POLICIES WHICH APPARENTLY THE
4 STATE HAS HAD, BASED UPON THE PAGE THAT IS THE COVER SHEET,
5 SINCE JUNE 12TH OF 2000, I'VE NEVER SEEN BEFORE. AND THERE
6 CERTAINLY WAS NO ATTEMPT IN THE STATE'S CASE IN CHIEF TO
7 INTRODUCE THESE THROUGH M.S. HEWARD OR SOME OTHER
8 FOUNDATIONAL WITNESS THAT WOULD HAVE BEEN APPROPRIATE AT
9 THAT TIME. AND SO ONCE AGAIN, I'M CLAIMING SURPRISE. I
10 OUGHT NOT TO BE GETTING THESE RIGHT IN THE MIDDLE OF
11 CROSS-EXAMINATION AND THEN TRY AND TO ASCERTAIN PRECISELY
12 WHAT'S IN HERE AND FIGURE OUT HOW TO GO FROM THERE. IT JUST
13 SHOULDN'T BE THE WAY IT'S DONE.
14 SO THOSE ARE MY OBJECTIONS WITH RESPECT TO BOTH OF
15 THE DOCUMENTS.
16 MR. WILSON: YOUR HONOR, IN RESPONSE, FIRST OF ALL
17 AS TO TAKING THE LAST FIRST, THIS COURT ADDRESSED IN SOME
18 DETAIL THIS PARTICULAR DOCUMENT OF WHICH MR. STIRBA WAS
19 PROVIDED A COPY OF BACK IN -- EARLY ON IN THESE PROCEEDINGS.
20 AS THE COURT MAY RECALL --
21 THE COURT: PLAINTIFF'S 46?
22 MR. WILSON: YES, PLAINTIFF'S 46. AS IS THE COURT
23 MAY RECALL, IT WAS IDENTIFIED THEN AS PLAINTIFF'S EXHIBIT 1.
24 AND AS THE COURT MAY RECALL AT THAT TIME WHEN WE INITIALLY
25 TRIED TO GET THE POLICIES IN IN RESPECT TO MISS HEWARD'S
3864
1 TESTIMONY, MISS HEWARD INDICATED THAT SHE WASN'T SURE
2 WHETHER THAT WAS THE PARTICULAR POLICY THAT WAS IN EFFECT.
3 WE SUBSEQUENTLY HAD HER PULL THE DOCUMENTS. WE REINSERTED
4 WHAT THE POLICIES WERE IN EFFECT AT THAT TIME. WE SUBMITTED
5 IT TO THE COURT. AND WE ARGUED THE MATTER TO THE COURT AT
6 THAT TIME AS TO ITS RELEVANCY IN THIS MATTER. THE DEFENDANT
7 HAS NOW TAKEN THE STAND AND HE HAS TESTIFIED IN RESPECT TO
8 HIS EMPLOYMENT AT THE DAVIS HOSPITAL. HE HAS TESTIFIED,
9 YOUR HONOR, IN RESPECT TO THE FACT THAT HE WAS OPERATING
10 UNDER THE MANAGEMENT OF HORIZONS IN CONJUNCTION WITH THE
11 HOSPITAL. AND THE POLICIES AND GUIDELINES THAT ARE IN
12 EFFECT IN RESPECT TO THAT PARTICULAR UNIT I THINK ARE VERY
13 RELEVANT.
14 AND FURTHERMORE AS TO THE -- AS TO THE SURPRISE,
15 AS TO THE DOCUMENTS THAT RELATE TO HIS CLINICAL PRIVILEGES,
16 THOSE WERE SUPPLIED TO COUNSEL EARLY ON IN THE COURSE OF
17 DISCOVERY. WE HAVE HAD THOSE DOCUMENTS IN OUR FILE FOR SOME
18 TIME. AND THEY WERE DISCOVERABLE AT THAT TIME. AND THEY
19 WERE SUPPLIED TO COUNSEL AT THAT TIME. SO I DON'T KNOW
20 WHERE HE'S COMING FROM IN TERMS OF SURPRISE AS TO THOSE
21 PARTICULAR DOCUMENTS OR EXHIBITS.
22 I WOULD SUBMIT FURTHERMORE, YOUR HONOR, THAT IN
23 RESPECT TO THE ARGUMENT THAT IT'S BEYOND THE SCOPE, THIS
24 DEFENDANT HAS CHOSEN TO WAIVE HIS RIGHTS TO TAKE THE STAND,
25 AND THE STATE OUGHTA BE ALLOWED SOME LATITUDE HERE IN
3865
1 CROSS-EXAMINING THIS DEFENDANT AS TO WHAT HIS KNOWLEDGE IS
2 AND THE DOCUMENTS SPEAK FOR THEMSELVES. HE SIGNED OFF ON
3 THE DOCUMENTS --
4 THE COURT: WELL, AS TO THAT ISSUE, ARE YOU SAYING
5 THAT IF A CRIMINAL DEFENDANT TAKES THE STAND, THAT HE WAIVES
6 ALL THE RULES ABOUT CROSS-EXAMINATION BEING AS TO THE SCOPE,
7 WITHIN THE SCOPE OF WHAT THE DIRECT EXAMINATION IS? SO THAT
8 THAT'S --
9 MR. WILSON: I'M SAYING THAT THE COURT SHOULD
10 LIBERALLY CONSTRUE THAT IN TERMS OF THE SCOPE. OTHERWISE, I
11 THINK WHAT YOU HAVE IS, YOU HAVE AN ARTIFICIAL LIMITING OF
12 THE ABILITY TO CROSS-EXAMINE THE DEFENDANT WHO HAS NO DUTY
13 OR RESPONSIBILITY TO TESTIFY IN THE FIRST PLACE.
14 THE COURT: NO, BUT -- THAT'S TRUE, HE DOESN'T HAVE
15 TO. AND THEY'VE CHOSE TO TESTIFY. BUT THE QUESTION IS,
16 NOTHING WAS SAID ABOUT PRIVILEGES, THERE -- IT WASN'T GONE
17 INTO ON DIRECT EXAMINATION.
18 MR. WILSON: BUT MUCH HAS BEEN SAID ABOUT HOW HE
19 PERFORMED HIS DUTIES WITHIN THE HOSPITAL CONTEXT, YOUR
20 HONOR. AND I THINK THAT THIS BEARS AS TO HIS
21 RESPONSIBILITIES AND THE PERFORMANCE OF THOSE DUTIES IN THAT
22 CONTEXT.
23 THE COURT: OKAY. WELL, TELL ME THIS: IF THESE
24 ARE ALLOWED IN, AND IT'S -- THEN YOU GO ON TO SAY, HERE'S A
25 POLICY AND YOU DIDN'T DO IT. HERE'S A POLICY AND YOU DIDN'T
3866
1 DO IT. HERE'S A POLICY AND YOU DIDN'T DO IT. HOW IS THAT
2 RELEVANT ON EITHER MURDER, MANSLAUGHTER, OR NEGLIGENT
3 CRIMINAL HOMICIDE?
4 MR. WILSON: WELL, I'LL TELL YOU HOW IT'S RELEVANT,
5 YOUR HONOR. IN TERMS OF THE PARTICULAR POLICY THAT I WANNA
6 GET INTO IS THE POLICY THAT REQUIRES -- IN EVERY INSTANCE IN
7 THAT HOSPITAL SETTING, THE POLICY REQUIRES THAT TWO
8 PHYSICIANS, THE ATTENDING PHYSICIAN AND ANOTHER PHYSICIAN,
9 CERTIFY THAT THIS PERSON IS IN A TERMINAL STATE. YOU HAVE
10 BEFORE YOU EVIDENCE THERE'S ONLY ONE OF THOSE INDIVIDUALS
11 THAT WAS CERTIFIED AS BEING IN A TERMINAL STATE. THE ONLY
12 PERSON HERE IS THE ACCUSED WHO'S TESTIFYING THAT THOSE
13 INDIVIDUALS WERE IN A TERMINAL STATE.
14 THE COURT: HASN'T THIS ISSUE BEEN DECIDED?
15 MR. STIRBA: IT HAS, YOUR HONOR.
16 THE COURT: WE HAD THE ISSUE ABOUT WHETHER STATE
17 LAW OR THE HOSPITAL POLICY OR HORIZON'S POLICY IS GOING TO
18 APPLY. WE HAD ABOUT -- WE BRIEFED IT. WE HAD ABOUT AN HOUR
19 ARGUMENT. I SPENT ABOUT EIGHT OR TEN HOURS REVIEWING ALL OF
20 THESE THINGS. AND THAT ISSUE WAS BASICALLY -- I MADE A
21 DECISION AT THAT POINT THAT IF THERE WAS A CONFLICT BETWEEN
22 THE STATE LAW AT ISSUE HERE AND THE HOSPITAL POLICY, THAT
23 THE STATE ALLOW WAS GOING TO APPLY. NOW, WHY -- IF WE'RE
24 BACK AT THIS ISSUE, ISN'T THIS JUST REARGUING SOMETHING THAT
25 I'VE ALREADY DECIDED?
3867
1 MR. WILSON: IT'S NOT OFFERED TO SHOW HIS
2 COMPLIANCE WITH STATE LAW OR NON COMPLIANCE WITH STATE LAW.
3 THE COURT: OKAY. THEN THEY'RE GOING TO HAVE IT
4 AND IT'S GOING TO SAY, YOU'VE GOT -- THAT THE HOSPITAL
5 POLICY SAYS TWO. STATE LAW TELLS YOU DON'T HAVE TO HAVE
6 TWO. AND WHAT'S THAT GOING TO HELP THE JURY TO DECIDE
7 WHETHER THIS DEFENDANT COMMITTED MURDER, MANSLAUGHTER, OR
8 NEGLIGENT CRIMINAL HOMICIDE?
9 MR. WILSON: I THINK IT'S GOING TO HELP THEM DECIDE
10 WHAT HIS INTENT WAS AND WHY HE DIDN'T HAVE ANOTHER PHYSICIAN
11 CERTIFY --
12 THE COURT: WELL, RUN THAT THROUGH FOR ME. SHOW ME
13 HOW THIS EVIDENCE COMING IN GOES TO INTENT TO COMMIT MURDER,
14 MANSLAUGHTER, OR NEGLIGENT CRIMINAL HOMICIDE. RUN THAT
15 THROUGH. JUST DON'T SAY THE WORDS INTENT.
16 MR. WILSON: OKAY.
17 THE COURT: WALK ME THROUGH IT SO I CAN SEE HOW
18 IT'S RELEVANT.
19 MR. WILSON: OKAY. LET ME SEE, IN TERMS OF THE
20 CASE OF LYDIA SMITH, I THINK THAT'S PROBABLY PRETTY GOOD
21 EXAMPLE. IT'S THE STATE'S CONTENTION THAT THE DEFENDANT,
22 FIRST OF ALL, OVER MEDICATES LYDIA SMITH, CAUSES HER
23 PHYSICAL CONDITION TO DETERIORATE. THE EVIDENCE BEFORE THE
24 COURT AT THIS TIME SHOWS THAT ON JANUARY 7TH, THE EVENING OF
25 JANUARY 7TH, THE DEFENDANT MEETS WITH THE FAMILY MEMBERS,
3868
1 AND PROCEEDS TO ADVISE THEM THAT THEIR MOTHER IS IN -- IS IN
2 THE DYING PROCESS. IN FACT, I THINK HIS TESTIMONY IS, IS HE
3 WASN'T QUITE SURE WHAT SHE WAS DYING FROM AT THAT TIME. AT
4 LEAST THERE'S NO EVIDENCE IN PARTICULAR THAT FOCUSSES ON
5 WHAT LYDIA SMITH WAS DYING FROM. HE ADVISES THEM OF THAT
6 FACT. THEN THEY PROCEED -- OR EARLIER ON, KENT SMITH HAS
7 SIGNED A DIRECTIVE. HE PROCEEDS TO INVOKE THAT DIRECTIVE.
8 TAKES HER OFF ANY OF THE MEDICATIONS AND PROCEEDS TO
9 ADMINISTER MORPHINE FOR COMFORT CARE. THE FACT THAT HE WAS
10 IN THE HOSPITAL SETTING, THE FACT THAT HE KNEW THAT THERE
11 WERE POLICIES AND REGULATIONS WHICH REQUIRED HIM TO GET AN
12 ADDITIONAL CERTIFICATION UNDER THOSE POLICIES AS TO THE FACT
13 THAT LYDIA SMITH WAS IN A TERMINAL STATE, I THINK IS VERY
14 RELEVANT FROM THE STANDPOINT, ANOTHER PHYSICIAN COULD HAVE
15 VERY WELL SAID NO, SHE'S NOT IN A TERMINAL STATE. SHE'S
16 SUFFERING FROM THE EFFECTS OF TOXICITY OF THESE DRUGS, AND
17 IT IS REHABILITATABLE. WE CAN REMEDY THAT SITUATION.
18 I THINK IT ALSO GOES TO HIS INTENT TO COVER UP HIS
19 CRIME. IF YOU CAN USE THE FAMILY MEMBERS AS UNWITTING
20 MEMBERS IN TERMS OF BEING ABLE TO DEMONSTRATE THAT, HEY,
21 SHE'S DYING, AND THEN THEY BUY OFF ON THAT, HEY, THERE'S NO
22 OTHER RECOURSE. THERE'S NO OTHER RECOURSE, YOUR HONOR. AND
23 SO I THINK THIS IS EVIDENCE OF HIS INTENT. I THINK HE WAS
24 VERY WELL AWARE OF THESE POLICIES, AND HE SIGNED OFF ON
25 THESE DOCUMENTS INDICATING THAT. SO I'M NOT OFFERING IT TO
3869
1 SHOW WHETHER OR NOT HE -- WHETHER OR NOT HE COMPLIED WITH
2 THE STATE DIRECTIVES. I'M OFFERING IT TO SHOW THAT IN THIS
3 PARTICULAR INCIDENCE, THAT'S ONE OTHER ITEM OF CONDUCT THAT
4 DEMONSTRATES HIS -- UNDER DEPRAVED CIRCUMSTANCES OR
5 INTENTIONALLY, KNOWINGLY CAUSING THE DEATH OF THESE PEOPLE
6 BECAUSE HE USES IT TO ADMINISTER THE MORPHINE.
7 THE COURT: OKAY. WHAT IS GOING -- WHAT IS GOING
8 TO BE THE FOUNDATION AS TO WHETHER THE DEFENDANT IS AWARE OF
9 THESE THINGS OR NOT?
10 MR. WILSON: WELL, YOUR HONOR, I WAS GONNA POINT
11 HIM TO THE PAGES AND ASK HIM IF THOSE BEAR HIS SIGNATURE.
12 AND THERE'S A PARTICULAR PROVISION --
13 THE COURT: WELL, YOU'RE TALKING ABOUT 45. AREN'T
14 WE TALKING ABOUT 46? AREN'T YOU REFERRING TO 46?
15 MR. WILSON: 46, YOUR HONOR -- WELL, NO, NOT 46. I
16 APOLOGIZE. 46 DOES NOT BEAR HIS SIGNATURE. THE ONLY THING
17 IN 45 INDICATES THAT HE WAS AWARE OF THE HOSPITAL POLICIES,
18 HE AGREES TO CONFORM HIS --
19 THE COURT: OKAY. THE QUESTION IS WHETHER HE'S
20 AWARE OF -- ONE OF THE ISSUES ABOUT FOUNDATION THAT WAS
21 RAISED IS WHETHER OR NOT HE WAS AWARE OF THE POLICY. SO
22 OUTSIDE THE PRESENCE OF JURY, GO AHEAD AND ASK THOSE
23 QUESTIONS FOR THIS WITNESS SO WE CAN SEE WHAT THE FOUNDATION
24 IS.
25 MR. WILSON: DOCTOR -- FIRST OF ALL, YOUR HONOR, I
3870
1 THINK I HAVE TO TALK ABOUT 45.
2 THE COURT: GO AHEAD.
3 MR. WILSON: OKAY.
4 Q. YOU HAVE BEFORE YOU THE CLINICAL -- APPLICATION FOR
5 CLINICAL PRIVILEGES?
6 A. YES, SIR.
7 Q. OKAY. AND IN RESPECT TO THAT APPLICATION, SIR, DID
8 YOU -- I'LL JUST TURN YOU RIGHT NOW TO THE LAST -- SECOND TO
9 THE LAST PAGE OF THE APPLICATION --
10 A. YES, SIR.
11 Q. -- IF YOU WILL. DOES THAT DOCUMENT BEAR YOUR SIGNATURE?
12 A. YES, SIR.
13 Q. OKAY. I'D ASK YOU, THERE'S A PARAGRAPH THAT'S
14 UNDERLINED, IS THERE NOT? IN THE DOCUMENT?
15 A. THE PARAGRAPH RIGHT HERE --
16 Q. YES.
17 A. -- THAT YOU'VE HIGHLIGHTED.
18 Q. OKAY. WHEN WAS THAT DOCUMENT SIGNED, BY THE WAY?
19 A. APRIL 15TH, '95.
20 Q. OKAY. CAN YOU TELL US, SIR, DID YOU REVIEW THAT
21 PARTICULAR DOCUMENT BEFORE YOU SIGNED IT?
22 A. NO, SIR.
23 Q. YOU JUST SIGNED OFF ON IT BLANK?
24 A. I DIDN'T READ THIS FINE PRINT HERE.
25 Q. OKAY. READ THE FINE PRINT, WILL YOU, DOCTOR?
3871
1 A. DO YOU WANT ME TO READ THE PART THAT'S HIGHLIGHTED?
2 Q. YES.
3 A. OKAY. I HAVE RECEIVED AND HAD AN OPPORTUNITY TO READ A
4 COPY OF THE MEDICAL STAFF BYLAWS AND SUCH FACILITY POLICIES
5 AND DIRECTIVES AS ARE APPLICABLE TO APPOINTEES TO THE
6 MEDICAL STAFF, INCLUDING THE BYLAWS AND RULES AND
7 REGULATIONS OF THE MEDICAL STAFF PRESENTLY IN FORCE. I
8 SPECIFICALLY AGREE TO ABIDE BY ALL SUCH BYLAWS, POLICIES,
9 DIRECTIVES, RULES AND REGULATIONS AS ARE IN FORCE AND AS
10 THEY MAY HEREAFTER BE AMENDED DURING THE TIME I AM APPOINTED
11 OR REAPPOINTED TO THE MEDICAL STAFF OR EXERCISE CLINICAL
12 PRIVILEGES AT THE FACILITY.
13 Q. OKAY. AND IT'S YOUR TESTIMONY HERE TODAY, YOU JUST
14 SIGNED THAT FORM IN BLANK.
15 A. SIR --
16 Q. I MEAN YOU DIDN'T EVEN READ IT?
17 A. WELL, I READ PARTS OF THIS. I DON'T THINK I READ THIS
18 WHOLE THING.
19 Q. OKAY. ARE YOU AWARE THAT IN FIRST -- IN FACT, IN
20 RESPECT TO THE FIRST DOCUMENT, YOU'RE REQUIRED, ARE YOU NOT,
21 TO ASSIST IN THE DEVELOPMENT OF ADMINISTRATIVE RULES AND
22 REGULATIONS AS TO THE GEROPSYCH UNIT?
23 A. YOU'RE TALKING ABOUT THIS DOCUMENT HERE?
24 Q. YES. DOCUMENT NUMBER 45 -- OR 44?
25 A. I REMEMBER SOMETHING LIKE THAT IN HERE, UH-HUH. YES,
3872
1 SIR.
2 Q. DID YOU PARTICIPATE IN THOSE?
3 A. YES, SIR.
4 Q. OKAY. AND YOU'RE AWARE THAT THERE'S CERTAIN HOSPITAL
5 POLICIES AND REGULATIONS AS IT PERTAINS TO GUIDELINES FOR A
6 VARIETY OF THINGS, ARE YOU NOT?
7 A. YEAH, I REMEMBER THE BYLAWS WAS A BOOK ABOUT 2 INCHES
8 THICK.
9 Q. OKAY. AS IT PERTAINS TO DIRECTIVES, DOCTOR, WERE YOU
10 AWARE OF THE BYLAWS? ADVANCE DIRECTIVES?
11 A. YOU MEAN DID I KNOW WHAT --
12 THE COURT: IS THAT ONE OF THESE EXHIBITS?
13 MR. WILSON: PARDON? IT'S EXHIBIT NUMBER 46.
14 THE COURT: DO YOU WANNA SHOW IT TO HIM.
15 Q. (BY MR. WILSON) LET ME SHOW YOU THE EXHIBIT.
16 A. OKAY. THIS LOOKS TO BE PART OF THE BYLAWS.
17 Q. OKAY. HAVE YOU -- DID YOU TAKE A LOOK AT THOSE?
18 A. NO, NOT DIRECTLY, NO.
19 Q. AS THE DIRECTOR OF THE GEROPSYCH UNIT, DOCTOR, ARE YOU
20 TELLING US THAT YOU DID NOT HAVE AN OPPORTUNITY TO REVIEW
21 THOSE BYLAWS OR POLICIES?
22 A. AS ASSOCIATE DIRECTOR --
23 Q. UH-HUH.
24 A. -- I HAD AN OPPORTUNITY TO REVIEW THEM.
25 Q. YOU HAD AN OPPORTUNITY TO REVIEW THEM?
3873
1 A. YES, I DID.
2 Q. OKAY. AND YOU IN FACT AGREED TO ABIDE BY THE POLICIES
3 OF THE HOSPITAL, DID YOU NOT?
4 A. YES, I DID.
5 MR. WILSON: OKAY. I WOULD SUBMIT IT, YOUR HONOR.
6 THE COURT: OKAY. TELL ME IF HE WASN'T -- IF HE
7 WAS -- HE HAD THEM AVAILABLE AND HE HAS NOT READ THEM, HOW
8 HE WAS AWARE OF THEM FOR PURPOSES OF INTENT FOR ANY OF THESE
9 THREE CRIMES.
10 MR. WILSON: WELL, I DON'T --
11 THE COURT: WELL, YOU'RE ASKING, YOU SAY THAT THIS
12 GOES TO INTENT. IF HE --
13 MR. WILSON: WELL, HE'S ALREADY TESTIFIED THAT HE
14 WAS AWARE OF THEM AND HE AGREED TO ABIDE BY THEM, YOUR
15 HONOR, FROM THAT STANDPOINT.
16 THE COURT: OKAY. WELL, YOU HAVEN'T LAID ANY
17 FOUNDATION THAT HE'S PERSONALLY AWARE OF THESE THINGS. YOU
18 LAID THE FOUNDATION THAT THEY WERE IN THE BYLAWS AND HE
19 AGREED TO ABIDE BY ALL OF THE PROCEDURES --
20 MR. WILSON: I GUESS I MISUNDERSTOOD.
21 Q. DOCTOR, DIDN'T YOU SAY YOU WERE FAMILIAR WITH BYLAWS AND
22 THE POLICIES?
23 A. WELL, THAT'S KIND OF A --
24 THE COURT: ARE YOU TALKING SPECIFICALLY ABOUT
25 PLAINTIFF'S EXHIBIT 46?
3874
1 Q. (BY MR. WILSON) THOSE -- THOSE ONES THAT ARE IN FRONT
2 OF YOU.
3 A. NO, SIR, I WAS NOT A -- I WAS NOT FAMILIAR WITH THESE.
4 I WAS AWARE THERE WERE BYLAWS OF THE HOSPITAL. YOU KNOW,
5 SIR, I DOUBT THERE'S ONE DOCTOR IN A THOUSAND THAT READS ALL
6 THE BYLAWS --
7 Q. DOCTOR, JUST ANSWER THE QUESTION.
8 A. OKAY.
9 Q. WERE YOU PERSONALLY -- DID YOU PERSONALLY REVIEW THOSE
10 PARTICULAR BYLAWS AND POLICIES?
11 A. DID I REVIEW THESE?
12 Q. UH-HUH.
13 A. NO, SIR.
14 Q. OKAY. AND WHY IS THAT?
15 A. WELL, BECAUSE IT'S A 2-INCH THICK -- I MEAN THIS IS ON
16 TWO THINGS, DO NOT RESUSCITATE GUIDELINES, ADVANCE
17 DIRECTIVES. I SIMPLY DIDN'T HAVE THE TIME.
18 Q. OKAY. IN RESPECT TO THE BYLAWS THEMSELVES OR THE
19 POLICIES THEMSELVES THAT YOU HAVE IN YOUR HAND THERE, AS THE
20 DIRECTOR OR ASSOCIATE DIRECTOR THE GEROPSYCH UNIT, DID YOU
21 NOT FEEL YOU HAD ANY RESPONSIBILITY TO REVIEW THOSE?
22 A. NO, SIR, I DIDN'T.
23 Q. OKAY. AND WHEN THIS -- THESE PATIENTS PRESENTED
24 THEMSELVES TO YOU AND YOU MADE A DETERMINATION TO RENDER
25 HOSPICE CARE, DID YOU NOT FEEL THAT YOU HAD A RESPONSIBILITY
3875
1 TO LOOK AT THE HOSPITAL POLICIES AT THAT TIME TO DETERMINE
2 WHAT ACTION IF ANYTHING YOU HAD TO TAKE?
3 A. NO, SIR.
4 Q. WHY IS THAT, DOCTOR?
5 A. WELL, I PRETTY MUCH BEEN TAUGHT ABOUT END-OF-LIFE CARE
6 AND THROUGHOUT MEDICAL SCHOOL AND RESIDENCY AND I FOLLOWED
7 THE SAME SORT OF CUSTOMARY BEHAVIORS THAT MEDICAL PERSONNEL
8 DO AND ALL OF MY TRAINING AND --
9 Q. SO YOU JUST TOTALLY DISREGARDED --
10 A. -- AND PREVIOUS --
11 Q. -- THE POLICIES, IS THAT RIGHT?
12 A. WELL, I DON'T THINK I'D CHARACTERIZE IT THAT WAY,
13 MR. WILSON.
14 Q. OKAY. WELL, YOU DIDN'T -- YOU DIDN'T REVIEW 'EM. YOU
15 DIDN'T FEEL A NEED TO, IS THAT RIGHT?
16 A. I DIDN'T FEEL I NEEDED TO READ THROUGH THE ENTIRE BYLAWS
17 OF THE HOSPITAL, NO, SIR.
18 Q. EXCUSE ME. YOU DIDN'T FEEL A NEED TO REVIEW THE
19 POLICIES IN RESPECT TO DO NOT RESUSCITATE AND TERMINAL OR
20 ADVANCE DIRECTIVES, IS THAT RIGHT?
21 A. NO, SIR, I DID NOT REVIEW THOSE. I GUESS I FOLLOWED
22 STATE LAW, BUT I DIDN'T FOLLOW THE HOSPITAL POLICY.
23 Q. AND YOU PREVIOUSLY SIGNED OFF ON TWO DOCUMENTS. ONE IS
24 YOUR CONTRACT AND ONE IS THE PRIVILEGES WHERE YOU AGREED TO
25 ABIDE BY THOSE POLICIES.
3876
1 A. YOU'RE RIGHT, SIR.
2 MR. WILSON: I STILL THINK IT'S RELEVANT, YOUR
3 HONOR, AND IT'S PROBATIVE IN RESPECT TO THIS MATTER THAT HE
4 DIDN'T FOLLOW THE BYLAWS OR THE HOSPITAL POLICIES.
5 THE COURT: OKAY. ANYTHING FURTHER ON THE
6 OBJECTION?
7 MR. STIRBA: WELL, YEAH. IT'S BEEN RULED ON ONCE
8 BY THE COURT. THIS IS PRECISELY THE SAME ISSUE THAT WE
9 ARGUED BEFORE. IT CONFLICTS WITH STATE LAW. STATE LAW IS
10 THE ONLY RELEVANT ISSUE HERE. THESE BYLAWS, I'M GONNA SAY
11 AS AN OFFICER OF THE COURT, I DON'T MAKE REPRESENTATIONS
12 LIGHTLY. WE'VE NEVER SEEN 'EM BEFORE. IT'S TRUE THERE WERE
13 SOME THAT WERE EXHIBIT 1, NOT THIS EXHIBIT 46. AND SO THE
14 ISSUE IS VIOLATION OF STATE LAW. THIS IS A CRIMINAL ACTION.
15 THIS IS NOT AN ACTION ABOUT WHETHER OR NOT THE HOSPITAL'S
16 UPSET WITH THIS GUY FOR PRIVILEGES. AND THAT'S REALLY ALL
17 WE'RE LITIGATING AND THAT'S MISLEADING TO THE JURY AND THE
18 COURT'S ALREADY RULED ON IT ONCE. AND THERE'S NO REASON TO
19 GO INTO IT AGAIN. AND FURTHERMORE, THERE'S NO FOUNDATION
20 LAID THAT HE EVEN KNEW ABOUT THESE PARTICULAR DIRECTIVES OR
21 THESE PARTICULAR END-OF-LIFE CARE POLICIES SO THEREFORE,
22 THEY COULDN'T POSSIBLY HAVE BEEN WITHIN HIS PURVIEW WITH
23 RESPECT TO THE CARE HE PROVIDED. SO IT SEEMS TO ME, LAW OF
24 THE CASE, IRRELEVANT, UNFAIR SURPRISE, EXTRANEOUS ISSUE,
25 403, LACK OF FOUNDATION, THOSE ARE ALL OF OUR OBJECTIONS.
3877
1 THE COURT: OKAY. MR. WILSON.
2 MR. WILSON: I'D SUBMIT IT, YOUR HONOR.
3 THE COURT: OKAY. I'M GONNA TAKE A SHORT BREAK AND
4 THEN MAKE A DECISION.
5 (WHEREUPON THE COURT TOOK A RECESS.)
6 THE COURT: OKAY. PREVIOUSLY IN THIS CASE, WE
7 STATED THAT -- OR THAT I HAVE STATED AND WE'VE ADDRESSED
8 THIS ISSUE A NUMBER OF TIMES, THAT THIS IS A MURDER CASE.
9 IT'S NOT A MEDICAL MALPRACTICE CASE. AND ALSO, I'VE
10 PREVIOUSLY RULED THAT THE UTAH STATE PERSONAL CHOICE AND
11 LIVING WILL ACT APPLIES. AND THE HOSPITAL POLICY DOES NOT
12 APPLY. AND THE HOSPITAL POLICY IS IN PLAINTIFF'S EXHIBIT 46
13 REGARDING ADVANCE DIRECTIVES. I RULED UPON THAT EARLIER IN
14 THE CASE WHEN THIS WAS FIRST ADDRESSED. AND I RULED ON THAT
15 PREVIOUSLY BECAUSE THE HOSPITAL POLICY GAVE GREATER
16 RESTRICTIONS THAN STATE LAW DID. AND SO I PREVIOUSLY RULED
17 THAT THE UTAH STATE ACT WOULD APPLY AND NOT THE HOSPITAL
18 POLICY. HOSPITAL POLICY DOESN'T APPLY. IT IS IRRELEVANT.
19 AND I'M NOT GOING TO ALLOW PLAINTIFF'S EXHIBIT 46 BECAUSE IT
20 IS IRRELEVANT.
21 SECONDLY, AS TO EXHIBIT 46, NOT ONLY CONFLICTING
22 WITH STATE LAW AS I PREVIOUSLY RULED, THERE'S NO EVIDENCE
23 THAT THE DEFENDANT WAS FAMILIAR OR HAD READ IT OR WAS AWARE
24 OF IT. AND THIS ISN'T THE CONTRACT CLASS WHERE WE'RE SAYING
25 YOU DIDN'T READ THE CONTRACT, BUT YOU'RE GOING TO HAVE
3878
1 KNOWLEDGE IMPUTED TO YOU. SO PLAINTIFF'S EXHIBIT 46 ISN'T
2 COMING IN FOR THOSE REASONS.
3 AND IN ADDITION, THAT IF IT CAME IN, AS I
4 MENTIONED EARLIER WHEN WE DECIDED THIS ISSUE, IT WOULD BE
5 CONFUSING TO THE JURY AS TO -- WE'VE GOT STATE LAW ON THE
6 ONE HAND AND THEN ANOTHER LAW THAT ISN'T RELEVANT, BUT IT
7 CONFLICTS.
8 AS TO EXHIBIT 45, THE ACTS IN THIS CASE THAT I
9 UNDERSTAND THE STATE IS SEEKING AFTER OUR HEARING ON MONDAY
10 ON THE JURY INSTRUCTIONS, WAS THAT THEY ARE ASKING FOR
11 CHARGES OF MURDER TO GO TO THE JURY, LESSER INCLUDED
12 OFFENSES OF MANSLAUGHTER, AND NEGLIGENT CRIMINAL HOMICIDE.
13 NOW, THE NEGLIGENT CRIMINAL HOMICIDE AND
14 MANSLAUGHTER HAVE LESSER MENTAL ELEMENTS THAN MURDER, THAN
15 THE THREE MURDER MATTERS. AND SO IN THAT CASE, EACH ONE OF
16 THEM SAYS THAT THERE HAS TO BE A GROSS DEVIATION. THE
17 STANDARD IS GROSS DEVIATION FROM THE STANDARD OF CARE.
18 NOW, EXHIBIT 45 IS THE APPLICATION FOR PRIVILEGES
19 AT THE HOSPITAL. IF THE DOCTOR DEFENDANT DID NOT COMPLY
20 WITH THE POLICIES OF THE HOSPITAL, I'M RULING THAT THAT IS
21 NOT A GROSS DEVIATION OF THE STANDARD OF CARE. THAT IS
22 NEGLIGENCE. AND AS I MENTIONED AT THE VERY BEGINNING OF
23 THIS CASE, THIS IS A MURDER CASE. IT IS NOT A MEDICAL
24 MALPRACTICE CASE. AND THINGS THAT ARE NEGLIGENCE --
25 NEGLIGENT ONLY ARE NOT GOING TO COME IN. AND THE FAILURE TO
3879
1 APPLY HOSPITAL STANDARDS OR NOT APPLY HOSPITAL STANDARDS IS
2 NEGLIGENCE. THAT'S BETWEEN HIM AND HIS EMPLOYER. AND WHAT
3 WE'RE GOING TO HAVE IF THAT COMES IN IS BASICALLY A
4 NEGLIGENCE ACTION THAT WILL GO TO THE JURY, AND THAT WILL BE
5 DETERMINED AS TO WHETHER MURDER WAS COMMITTED. I'VE SAID
6 THAT FROM EITHER THE SECOND DAY OF THIS TRIAL, AND I'VE
7 REPEATED IT THROUGHOUT, AND I'M NOT CHANGING THE DIRECTION
8 OF THE TRIAL ON THE LAST THREE DAYS OF THE TRIAL.
9 OKAY. ARE THERE ANY QUESTIONS?
10 MR. WILSON: YOUR HONOR, FOR PURPOSES OF THE RULING
11 OF THE COURT, I WOULD ALSO -- I'D LIKE TO BE ABLE TO OFFER
12 IN THE TESTIMONY THEN AS TO GOING TO CREDIBILITY AS TO THE
13 DEFENDANT'S STATING THAT HE SIGNED OFF ON THE AGREEMENT FOR
14 CLINICAL PRIVILEGES INDICATING THAT HE'D REVIEWED THOSE
15 HOSPITAL POLICIES AND IN GENERAL. I'M NOT TALKING ABOUT THE
16 ADVANCE DIRECTIVES NECESSARILY, BUT I THINK IT DOES GO TO
17 CREDIBILITY BECAUSE HE'S ESSENTIALLY SAYING, YEAH, I SIGNED
18 OFF ON 'EM AND I DIDN'T READ 'EM, AND I THINK THE FACT THAT
19 HE'S ATTESTING IN ONE DOCUMENT THAT HE HAS READ 'EM AND THEN
20 HE'S TESTIFYING HERE IN COURT TO THE FACT THAT HE HAS NOT
21 READ THEM TO ME IS SIGNIFICANT IN TERMS OF AN ISSUE AS TO
22 HIS CREDIBILITY AS TO OTHER STATEMENTS THAT HE MAKES HERE IN
23 COURT. AND I THINK THAT COULD BE AN ARGUMENT TO THE JURY.
24 I'D ALSO FURTHER LIKE TO JUST ARGUE IN RESPECT TO
25 EXHIBIT -- IS IT 45 THAT'S --
3880
1 THE COURT: I HAVE 46.
2 MR. WILSON: -- CLINICAL --
3 THE COURT: 46 IS THE HOSPITAL-WIDE GUIDELINES AND
4 DIRECTIVES. AND I DON'T HAVE 45 IN FRONT OF ME. I THINK 45
5 YOU SAID WAS THE PRIVILEGES OF THE HOSPITAL.
6 MR. WILSON: THAT'S CORRECT, YOUR HONOR. THAT HAS
7 A PROVISION IN IT AND I WANTED TO REFER TO THAT PROVISION IN
8 THE COURSE OF THIS TESTIMONY. SO I WANNA MAKE CLEAR THAT I
9 UNDERSTAND THE RULING OF THE COURT. THAT HE APPLIED FOR --
10 I WOULD JUST PROFFER THAT HE APPLIED FOR LEVEL THREE
11 PRIVILEGES. AT LEVEL THREE PRIVILEGES REQUIRE THAT A
12 PHYSICIAN IN THAT CATEGORY WILL BE EXPECTED TO OBTAIN
13 CONSULTATION FOR ALL CLINICAL PROBLEMS OUTSIDE OF THEIR
14 SPECIALTY. AND IN FACT, I DON'T KNOW AS I NECESSARILY HAVE
15 TO OFFER THE DOCUMENT IN. I COULD PROBABLY JUST ASK HIM THE
16 QUESTION, ISN'T IT TRUE --
17 THE COURT: YOU SHOULD --
18 MR. WILSON: -- THAT YOU'RE REQUIRED TO DO THAT.
19 THE COURT: YEAH.
20 MR. WILSON: AND WE COULD PROCEED IN THAT FASHION.
21 THE COURT: YOU CAN ASK THAT QUESTION WITHOUT AN
22 EXHIBIT. I MEAN YOU CAN ASK --
23 MR. WILSON: AS TO THE OTHER ISSUE THAT I JUST
24 ADDRESSED TO THE COURT, I NEED SOME DIRECTION FROM THE COURT
25 ON THAT.
3881
1 THE COURT: OKAY. AS TO -- AND THIS IS 45 --
2 EXHIBIT 45 AS TO HIS CREDIBILITY?
3 MR. WILSON: EXHIBIT 46 -- WELL, YEAH, EXHIBIT 45
4 GOES TO HIS CREDIBILITY AND ALSO TO THE PROVISION THAT HE'S
5 READ THE HOSPITAL POLICIES WHEN IN FACT HE'S INDICATED
6 SPECIFICALLY HE HASN'T READ THE ONES AS TO THE D.N.R. AND
7 ADVANCE MEDICAL DIRECTIVES.
8 THE COURT: OKAY. AND SO WHAT -- ARE YOU ARGUING
9 THIS UNDER RULE 608 OF THE RULES OF EVIDENCE THAT SAYS
10 EVIDENCE OF A CHARACTER AND CONDUCT OF WITNESS?
11 MR. WILSON: WELL, I THINK IT -- I THINK IT -- NO,
12 I THINK WHAT I'M ARGUING IS, IS THAT IT GOES TO CREDIBILITY
13 OF HIS TESTIMONY HERE IN COURT THAT HE'S SAYING IN ONE -- IN
14 THAT DOCUMENT, THAT HE'S READ THOSE AND IN HIS TESTIMONY
15 HE'S SAYING NO, I DIDN'T READ 'EM. AND AGAIN, MAYBE I CAN
16 JUST ASK THE QUESTION, IF HE'S FAMILIAR WITH THE --
17 THE COURT: GO AHEAD.
18 Q. (BY MR. WILSON) ARE YOU FAMILIAR WITH THE HOSPITAL
19 POLICIES IN REGARDS TO DO NOT RESUSCITATE AND ADVANCE
20 MEDICAL DIRECTIVES?
21 A. DO YOU MEAN AM I THOROUGHLY FAMILIAR WITH THESE
22 POLICIES?
23 Q. YES, THAT'S CONTAINED IN EXHIBIT 46 AT THE PRESENT TIME.
24 A. NO, I'M NOT.
25 Q. OKAY. AND ISN'T IT TRUE, DOCTOR, THAT YOU PREVIOUSLY IN
3882
1 PROVIDING -- YOU PROVIDED AND SIGNED A DOCUMENT ATTESTING TO
2 THE FACT THAT YOU INDEED HAD REVIEWED THOSE POLICIES AND
3 DIRECTIVES, ALL POLICIES AND DIRECTIVES OF THE HOSPITAL, IS
4 THAT CORRECT?
5 MR. STIRBA: OBJECTION. IT MISCHARACTERIZES THE
6 DOCUMENT. IT SPEAKS FOR ITSELF. YOU DON'T NEED TO
7 INTERPRET IT.
8 THE COURT: REPHRASE THE QUESTION.
9 Q. (BY MR. WILSON) OKAY. DOCTOR, DID YOU NOT SIGN A
10 DOCUMENT IDENTIFIED AS -- PRESENTLY IDENTIFIED AS
11 PLAINTIFF'S EXHIBIT 45, WHEREIN YOU INDICATED THAT YOU'VE
12 RECEIVED AND HAD AN OPPORTUNITY TO READ A COPY OF THE
13 MEDICAL STAFF BYLAWS AND SUCH FACILITY POLICIES AND
14 DIRECTIVES AS ARE APPLICABLE TO APPOINTEES TO THE MEDICAL
15 STAFF, INCLUDING BYLAWS AND RULES AND REGULATIONS OF THE
16 MEDICAL STAFF PRESENTLY IN FORCE, AND YOU AGREED
17 SPECIFICALLY TO ABIDE BY ALL SUCH BYLAWS, POLICIES,
18 DIRECTIVES, RULES, AND REGULATIONS AS ARE IN FORCE AND AS
19 THEY MAY HEREAFTER BE AMENDED DURING THE TIME I AM APPOINTED
20 OR REAPPOINTED TO THE MEDICAL STAFF OR EXERCISE CLINICAL
21 PRIVILEGES AT THE FACILITY; DID YOU SIGN A DOCUMENT AGREEING
22 THAT YOU HAD INDEED READ THOSE?
23 A. NO, SIR --
24 MR. STIRBA: OBJECTION --
25 THE WITNESS: NO, SIR, I DID NOT. WHAT IT SAYS, I
3883
1 HAD AN OPPORTUNITY TO READ. IT DOESN'T SAY I READ 'EM.
2 Q. (BY MR. WILSON) SO WHAT YOU'RE SAYING THEN IS THAT
3 EVEN THOUGH YOU HAD THE OPPORTUNITY TO READ THOSE, YOU DID
4 NOT READ THOSE?
5 A. I'M SURE I DIDN'T.
6 Q. AND SO YOU'RE NOT FAMILIAR WITH THOSE.
7 A. NO, SIR, I'M NOT FAMILIAR WITH THEM.
8 Q. OKAY. SO YOU'RE NOT FAMILIAR WITH THE -- WITH THE
9 REQUIREMENTS THAT -- OF THOSE ITEMS IN RESPECT TO THE
10 MEDICAL DIRECTIVES, THE ADVANCE DIRECTIVES?
11 MR. STIRBA: OBJECT, ASKED AND ANSWERED FOUR
12 DIFFERENT TIMES.
13 THE COURT: WELL, WE'LL I GUESS HAVE IT ONE MORE
14 TIME.
15 THE WITNESS: NO, I'M NOT.
16 MR. WILSON: OKAY. I WOULD STILL -- HE DID
17 INDICATE --
18 Q. DID YOU NOT SIGN A DOCUMENT TO THAT EFFECT THAT YOU HAD
19 THE OPPORTUNITY --
20 MR. STIRBA: SPEAKS FOR ITSELF, YOUR HONOR.
21 MR. WILSON: IT'S NOT EVIDENCE, YOUR HONOR.
22 THE COURT: WELL, THIS IS A SITUATION WHERE YOU'RE
23 SAYING HIS CREDIBILITY. I UNDERSTOOD WHEN YOU FIRST ASKED
24 THE QUESTION ABOUT CREDIBILITY THAT, DID HE SIGN A CONTRACT
25 SAYING HE HAD READ IT AND AGREED TO ABIDE BY THEM. AND
3884
1 NOW -- NOW WHAT THE CONTRACT SAYS, HE HAD THE OPPORTUNITY TO
2 READ IT. THAT'S WHAT YOU JUST READ TO HIM.
3 MR. WILSON: OKAY. AS TO THE FIRST PART OF THE
4 QUESTION AS IT RELATES -- DOES THE COURT DESIRE THAT I ASK
5 HIM A QUESTION IN RESPECT ON THAT?
6 THE COURT: WELL, I JUST WANNA KNOW WHAT THE BASIS
7 FOR YOUR CREDIBILITY, ASKING THAT THIS BE INCLUDED FOR
8 PURPOSES OF CREDIBILITY.
9 MR. WILSON: WELL, I WITHDRAW THE QUESTION AT THIS
10 TIME, YOUR HONOR.
11 THE COURT: ALL RIGHT. IS THERE ANYTHING ELSE THAT
12 WE NEED TO DO BEFORE THE JURY --
13 MR. WILSON: I STILL WANT TO KNOW -- CAN I ASK HIM
14 THE QUESTION, DID YOU NOT AGREE THAT YOU WOULD BE -- AS A
15 LEVEL THREE PRIVILEGES, DID YOU NOT AGREE THAT YOU WOULD BE
16 EXPECTED TO OBTAIN CONSULTATION FOR ALL CLINICAL PROBLEMS
17 OUTSIDE OF THIS SPECIALTY?
18 THE COURT: OKAY. IS THERE ANY OBJECTION TO THAT
19 QUESTION?
20 MR. STIRBA: WELL, THERE IS TO THE EXTENT I THINK
21 IT'S IRRELEVANT TO THE FACTS OF THIS CASE. AND I ALSO --
22 ONCE AGAIN, I JUST GOT THIS, SO I'M NOT FAMILIAR WHAT ALL
23 LEVEL THREE REALLY MEANS OR DOESN'T MEAN. I HAVEN'T HAD AN
24 OPPORTUNITY TO LOOK AT IT. AND --
25 THE COURT: WELL, I CAN'T MAKE A DECISION WHEN ONE
3885
1 COUNSEL TELLS ME IT WAS GIVEN AND THE OTHER COUNSEL TELLS ME
2 THEY DIDN'T RECEIVE IT. I CAN'T DECIDE THAT ISSUE. SO --
3 MR. STIRBA: WELL, I APPRECIATE WHAT THE COURT JUST
4 SAID, BUT I SAID WHAT I SAID. BUT I'M TELLING YOU, I THINK
5 IT'S IRRELEVANT WHETHER HE HAD SOME RESPONSIBILITIES AS A
6 DIVISION THREE PSYCHIATRIST. AND I THINK IT'S GONNA BE 403
7 MISLEADING THE JURY BECAUSE YOU'RE BACK IN THE PRIVILEGES
8 SITUATION.
9 THE COURT: OKAY. AND LET'S SAY THAT YOU ASK THAT
10 QUESTION AND THEN HE SAYS HE DID NOT FOLLOW THAT. THEN IS
11 THAT GROSS DEVIATION FROM THE STANDARD OF CARE OR IS THAT
12 NEGLIGENCE?
13 MR. WILSON: WELL, I'M JUST GONNA ASK HIM WHETHER
14 OR NOT HE AGREES THAT HE'S EXPECTED TO OBTAIN CONSULTATION.
15 I THINK HE CAN ANSWER THAT YES OR NO.
16 MR. STIRBA: YEAH, BUT SEE, I DON'T THINK --
17 THE COURT: WELL, THE SUBJECT OF WHETHER OR NOT HE
18 WANTS -- HE SHOULD OR SHOULD NOT, YOU CAN PROBE THAT WITH
19 HIM WHETHER HE SHOULD OR SHOULD NOT ASSOCIATE WITH PEOPLE
20 OUTSIDE HIS SPECIALTY ON THINGS. I DON'T THINK WE HAVE TO
21 HAMMER IT THROUGH, YOU KNOW, THIS SQUARE -- SQUARE HOLE IN A
22 ROUND PEG. YOU CAN ASK THE QUESTION AND GET TO THE ISSUE.
23 IT'S NOT GOING GO IN THROUGH THAT AREA, THOUGH. SO I MEAN
24 THE QUESTION, THE SUBJECT MATTER CAN BE -- HE CAN BE
25 CROSS-EXAMINED ON AND YOU CAN ASK HIM, YOU KNOW, WHETHER OR
3886
1 NOT HE FELT HE SHOULD OR, YOU KNOW, WHY DIDN'T HE.
2 MR. WILSON: OKAY.
3 THE COURT: OKAY. ANYTHING ELSE?
4 MR. WILSON: I HAVE NOTHING FURTHER, YOUR HONOR.
5 THE COURT: OKAY. THEN WHY DON'T YOU HAVE THE JURY
6 COME IN.
7 (JURY RETURNS TO THE COURTROOM.)
8 THE COURT: OKAY. YOU MAY BE SEATED. WELL, I
9 GUESS WE'RE MISSING ONE. YOU'RE ALL SUPPOSED TO COME IN
10 TOGETHER. MR. EDWARDS, WOULD YOU MAYBE TRY TO GO OUT AND
11 SEE -- WHY DOESN'T EVERYBODY JUST SIT DOWN UNTIL WE FIND THE
12 LOST JUROR.
13 OKAY. THE RECORD WILL REFLECT THAT THE JURY IS
14 PRESENT. I'M ALWAYS CONCERNED WHEN WE SAY WE'RE GONNA TAKE
15 A SHORT BREAK AND IT TAKES A LONGER TIME, THAT YOU'LL ALL GO
16 HOME AND NOT COME BACK, SO I'M GLAD YOU ALL STAYED HERE.
17 OKAY. MR. WILSON, IF YOU'D LIKE TO CONTINUE.
18 MR. WILSON: THANK YOU, YOUR HONOR.
19 Q. YOU PREVIOUSLY TESTIFIED, DOCTOR, THAT A SUBSTANTIAL
20 PART OF YOUR TRAINING RELATED TO THE PSYCHOTROPIC
21 MEDICATIONS AND SIDE EFFECTS, IS THAT CORRECT?
22 A. YES, SIR.
23 Q. I ASSUME THAT YOU ALSO RECEIVED TRAINING IN PAIN
24 MEDICATIONS, IS THAT CORRECT?
25 A. YES, SIR.
3887
1 Q. AND IN PARTICULAR, CERTAIN CENTRAL NERVOUS SYSTEM TYPE
2 DEPRESSANTS, IS THAT CORRECT?
3 A. YES, SIR.
4 Q. A NUMBER OF THE PSYCHOTROPIC MEDICATIONS THAT YOU DEAL
5 IN ON A DAILY BASIS ARE CENTRAL NERVOUS SYSTEM DEPRESSANTS
6 IN FACT, ARE THEY NOT?
7 A. YES, SIR.
8 Q. AND DO YOU AGREE WITH THE STATEMENT THAT IF YOU COMBINE
9 CENTRAL NERVOUS SYSTEM DEPRESSANTS WITH ONE ANOTHER THAT
10 THAT WOULD ENHANCE THE EFFECT UPON AN INDIVIDUAL?
11 A. ITS ADDITIVE EFFECT, YES, SIR.
12 Q. IT'S AN ADDITIVE EFFECT. AND WE'VE HEARD LOTS OF
13 TESTIMONY ABOUT HALF LIFES AND DURATION AND ALL OF THOSE
14 KINDS OF FACTORS. IS THAT A REFLECTION OF WHAT YOU'VE
15 HEARD, TOO?
16 A. YES, SIR.
17 Q. AND YOU UNDERSTAND OR DO YOU AGREE THAT IN PARTICULAR
18 WITH GERIATRIC PATIENTS, THAT THEY ARE MORE SENSITIVE TO THE
19 EFFECTS OF THESE TYPES OF MEDICATIONS?
20 A. OVERALL, YES, SIR.
21 Q. OKAY. DO YOU ALSO AGREE THAT IF A PATIENT IS SUFFERING
22 FROM VARIOUS DISEASE PROCESSES BECAUSE OF THE OLD AGE, THAT
23 THAT WOULD FURTHER SENSITIZE THEM IN RESPECT TO THESE TYPES
24 OF MEDICATIONS.
25 A. NO, SIR.
3888
1 Q. YOU DON'T AGREE?
2 A. WELL, THE FACT OF IN GENERAL OLD -- ELDERS ARE MORE
3 SUSCEPTIBLE IS DUE TO THE FACT THAT THEY FREQUENTLY HAVE
4 MEDICAL CONDITIONS.
5 Q. OKAY. DOES THE EFFECT OF MORPHINE -- IS ONE OF THE
6 EFFECTS OF MORPHINE A REDUCTION IN THE PERSON'S RESPIRATION?
7 A. IT CAN BE IN HIGHER DOSES, YES, SIR.
8 Q. OKAY. AND IN RESPECT TO THE USE OF MORPHINE, IF AN
9 INDIVIDUAL WAS SUFFERING FROM SOME OTHER FORMS OF
10 RESPIRATORY PROBLEMS SUCH AS PNEUMONIA, WOULD THAT
11 CONTRIBUTE TO THE ENHANCING EFFECT OF THAT PARTICULAR DRUG
12 OR TO THE DEPRESSION EFFECT OF THAT DRUG?
13 A. IT WOULD DEPEND. IT COULD CONTRIBUTE TO DEPRESSION OR
14 IT COULD ACTUALLY HELP THE BREATHING.
15 Q. I SEE. HAVE YOU DONE MUCH PAIN MANAGEMENT WORK IN YOUR
16 SPECIALTY AS A PSYCHIATRIST?
17 A. I WOULDN'T SAY ANY MORE OR LESS THAN ANY OTHER
18 PSYCHIATRIST.
19 Q. OKAY. MORE OR LESS THAN ANY OTHER PSYCHIATRIST.
20 A. YES, SIR.
21 Q. I TAKE IT YOU DO NOT PARTICIPATE ON A REGULAR BASIS IN
22 ANY KIND OF SURGICAL OR OPERATIONAL TYPE PROCEDURES, IS THAT
23 CORRECT?
24 A. NO, SIR, NOT AS A SURGEON.
25 Q. OKAY.
3889
1 A. AS A CONSULTANT PERHAPS, BUT --
2 Q. AS A CONSULTANT. SO YOU WOULD NOT ADMINISTER VARIOUS
3 TYPES OF ANESTHESIOLOGY OR DRUGS IN THAT CONTEXT, IS THAT
4 CORRECT?
5 A. IN SURGERY, NO, SIR.
6 Q. OKAY. AND IN RESPECT TO A SPECIALIZED AREA IN PAIN
7 MANAGEMENT, YOU HOLD NO BOARD CERTIFICATIONS OR ANY
8 SPECIALIZED EXPERTISE IN THOSE AREAS, DO YOU?
9 A. WELL, I'M A MEMBER OF THE AMERICAN ACADEMY OF PAIN
10 MANAGEMENT, BUT I DO NOT -- I'M NOT BOARD CERTIFIED IN PAIN
11 MANAGEMENT.
12 Q. I SEE. AMERICAN PAIN MANAGEMENT. AND IS THAT AN
13 ORGANIZATION THAT YOU SUBSCRIBE TO?
14 A. YES, SIR. I RECEIVE THEIR JOURNAL EVERY MONTH.
15 Q. I SEE. DID YOU HAVE TO TAKE ANY TESTS OR ANYTHING TO
16 BECOME A MEMBER OF THE AMERICAN ACADEMY OF PAIN MANAGEMENT?
17 A. NO, SIR.
18 Q. SO IT'S PRIMARILY AN INFORMATIONAL SOURCE FOR YOU?
19 A. ANY MEDICAL DOCTOR CAN JOIN THAT ORGRANIZATION. AND
20 IT'S AN INFORMATION SOURCE.
21 Q. DO YOU -- WELL, IT'S TRUE, IS IT NOT, THAT IN TERMS OF
22 AN INTERNAL MEDICINE, YOU DON'T HOLD YOURSELF OUT TO BE A
23 SPECIALIST IN THAT AREA OF THE PRACTICE?
24 A. PSYCHIATRY IS A BRANCH OF INTERNAL MEDICINE. SO I DON'T
25 HOLD MYSELF OUT AS AN INTERNIST. I'M A PSYCHIATRIST.
3890
1 Q. OKAY. IN RESPECT TO CARDIOLOGY, DO YOU HAVE ANY SPECIAL
2 EXPERTISE IN THAT AREA?
3 A. NO, SIR.
4 Q. DO YOU HAVE ANY SPECIAL EXPERTISE IN RADIOLOGY?
5 A. NO, SIR.
6 Q. DO YOU HAVE ANY SPECIAL EXPERTISE IN PHARMACOLOGY?
7 A. I STUDIED PHARMACOLOGY AS A MEDICAL STUDENT, BUT I'M NOT
8 A PHARMACOLOGIST.
9 Q. OKAY. YOU HAVE -- YOU'VE TESTIFIED THAT YOU'VE HAD SOME
10 ACQUAINTANCE AS AN INTERN WITH HOSPICE CARE.
11 A. YES, SIR. AND THROUGHOUT RESIDENCY.
12 Q. PARDON?
13 A. YES, SIR. AND THROUGHOUT RESIDENCY.
14 Q. THROUGHOUT RESIDENCY. DID YOU IN THAT SETTING TEND TO
15 PATIENTS WHO WERE HOSPICE CARE OR DETERMINED TO BE ELIGIBLE
16 FOR HOSPICE CARE?
17 A. YES, SIR.
18 Q. AS I UNDERSTAND IT, ONCE THAT DETERMINATION IS MADE,
19 HOSPICE CARE ESSENTIALLY TAKES PLACE IN A HOME ENVIRONMENT,
20 DOES IT NOT?
21 A. THAT'S ONE PLACE IT CAN OCCUR.
22 Q. FOR THE -- PRIMARILY FOR THE MOST PART, IT DOES TAKE
23 PLACE IN THAT PARTICULAR ENVIRONMENT, DOES IT NOT?
24 A. PROBABLY MORE THAN 50 PERCENT, YES, SIR.
25 Q. OKAY. AND IN RESPECT TO WHAT HOSPICE CARE -- I ASSUME
3891
1 THAT ONE OF THE REASONS IT TAKES PLACE IN THE HOME
2 ENVIRONMENT, BECAUSE THAT'S A SETTING THAT PEOPLE ARE MOST
3 COMFORTABLE IN.
4 A. YES, SIR.
5 Q. WOULD THAT BE A FAIR STATEMENT?
6 A. I THINK SO, YES, SIR.
7 Q. AND THAT'S AN IMPORTANT PART OF COMFORT CARE, IS IT NOT?
8 A. I THINK, YES, SIR. THE HOSPICE, THE WHOLE MOVEMENT HAS
9 TRIED TO TREAT PEOPLE IN THE HOME ENVIRONMENT RATHER THAN IN
10 INSTITUTIONAL SETTINGS.
11 Q. IN RESPECT TO SUCH OTHER AREAS OF EXPERTISE SUCH AS
12 ORTHOPEDICS, DO YOU HOLD YOURSELF OUT TO BE A SPECIALIST IN
13 ANY -- IN THAT?
14 A. NOT IN ORTHOPEDICS, NO.
15 Q. HOW ABOUT ANY KINDS OF FORENSIC PATHOLOGY --
16 A. NO.
17 Q. -- HAVE YOU GOT ANY EXPERTISE THERE?
18 A. NO.
19 THE COURT: WAIT UNTIL THE QUESTION'S DONE.
20 THE WITNESS: OKAY.
21 Q. (BY MR. WILSON) WE WERE TALKING A LITTLE BIT ABOUT THE
22 FISCAL ARRANGEMENTS THAT WERE MADE FOR YOU FOR PAYMENT AT
23 THE GEROPSYCH UNIT. I THINK I ASKED YOU, YOU WERE PAID BY
24 PATIENT ADMISSION, IS THAT CORRECT?
25 A. EARLIER I WAS CONFUSED AS TO YOUR QUESTION. I -- IT
3892
1 SOUNDED AS IF YOU WERE ASKING ME IF I WAS PAID BY HORIZONS
2 PER PATIENT ADMINISTRATION, IS THAT --
3 Q. THAT'S CORRECT.
4 A. NO, SIR, I WAS NOT.
5 Q. OKAY. HOW WERE YOU PAID BY HORIZON?
6 A. I WAS PAID HOURLY FOR MY ADMINISTRATIVE DUTIES ON THE
7 UNIT.
8 Q. AND -- AND THEN YOU WERE PAID BY DIRECT SERVICES FOR --
9 OR PROVIDED SERVICES TO THESE PATIENTS?
10 A. YES, SIR. I SAW THE PATIENTS ON THE UNIT AND BILLED FOR
11 THAT.
12 Q. IS IT TRUE THAT A PATIENT COMING ONTO THE UNIT, THAT YOU
13 WOULD HAVE -- BE ABLE TO SAY ASSESS FOR A PSYCHIATRIC
14 EVALUATION?
15 A. THEIR INITIAL DAY, I WOULD CHARGE BASICALLY FOR THE
16 PSYCHIATRIC EVALUATION AND TREATMENT THAT DAY.
17 Q. ANY OTHER FEES THAT YOU WOULD -- THAT YOU WOULD RECEIVE
18 AS A RESULT OF THAT PATIENT COMING ON TO THE UNIT AT
19 ADMISSION?
20 A. NO, SIR.
21 Q. SO BASICALLY, YOU GET THAT FEE AND THEN IF YOU PROVIDE
22 DAILY CARE, I ASSUME YOU RECEIVE THOSE MONEYS, TOO, IS THAT
23 CORRECT?
24 A. YES, SIR.
25 Q. AND YOU WOULD BILL OUT -- WHO WOULD YOU BILL OUT TO?
3893
1 WOULD YOU BILL OUT TO HORIZONS OR WOULD YOU BILL OUT TO THE
2 PARTICULAR PATIENT?
3 A. NEITHER.
4 Q. BILL OUT TO MEDICARE?
5 A. MEDICARE AND OTHER INSURANCE COMPANIES.
6 Q. OKAY. NOW, AS I UNDERSTAND IT, THIS WAS A FACILITY THAT
7 ALLOWED A MEDICARE PATIENT TO BE HOUSED FOR A LONGER PERIOD
8 OF TIME, IS THAT RIGHT?
9 A. LONGER --
10 Q. WELL, THERE WEREN'T THE RESTRICTIONS PLACED ON A
11 PATIENTS RECEIVING BENEFITS IN A GEROPSYCH UNIT THAT ARE
12 ORDINARILY RESTRICTED IN OTHER TYPES OF FACILITIES, IS THAT
13 CORRECT? IN TERMS OF PAYMENT?
14 A. I DON'T REALLY KNOW EXACTLY WHAT -- WHAT DO YOU MEAN?
15 Q. WELL, YOU WOULD BILL MEDICARE, IS THAT CORRECT?
16 A. YES, SIR.
17 Q. DID -- MEDICARE IMPOSES CERTAIN CRITERIA THAT THESE
18 PATIENTS HAVE TO FIT BEFORE YOU CAN PLACE THEM IN THE UNIT,
19 IS THAT CORRECT?
20 A. I THINK THAT WAS IMPOSED ON THE HOSPITAL. I DON'T THINK
21 IT WAS ON ME.
22 Q. SO YOU'RE NOT AWARE THAT YOU HAD ANY KIND OF
23 RESTRICTIONS ON YOU AS FOR WHAT YOU COULD BILL OUT TO
24 MEDICARE FOR THE CARE OF THESE PATIENTS.
25 A. WELL, I BILLED ONCE A DAY FOR MY SERVICES.
3894
1 Q. OKAY. NOW, YOU PREVIOUSLY TESTIFIED THAT AS TO THE FOUR
2 PATIENTS, WITH THE EXCEPTION OF ELLEN ANDERSON, THAT YOU
3 CONVERTED THEIR CARE TO HOSPICE CARE, IS THAT RIGHT?
4 A. I DON'T KNOW IF I SAID THAT. THEY BECAME ILL AND WE
5 GAVE THEM COMFORT CARE WHILE THEY WERE DYING, AND I SUPPOSE
6 THAT'S A FORM OF HOSPICE CARE.
7 Q. I SEE. IS THAT A TYPE OF TREATMENT THAT MEDICARE PAYS
8 FOR?
9 A. YES, SIR.
10 Q. ON A GEROPSYCH UNIT?
11 A. I DON'T KNOW ABOUT THAT.
12 Q. WERE YOU NOT CONCERNED, DOCTOR, THAT PROVIDING THAT
13 TREATMENT MAY RUN AFOUL OF THE POLICIES AND OPERATIONS OF
14 THE HOSPITAL?
15 A. AT THE TIME I WASN'T.
16 Q. OKAY. DID YOU IN FACT -- WELL, STRIKE THAT. ONE OF THE
17 CRITERIA THAT'S SET FORTH IN EXHIBIT 2 TALKS ABOUT -- AND
18 THIS IS THE INTAKE AND ADMISSION CRITERIA -- TALKS ABOUT THE
19 TOXIC EFFECTS FROM THERAPEUTIC PSYCHOTROPIC MEDICATIONS.
20 THAT WAS ONE OF THE CRITERIA.
21 A. EXHIBIT 2?
22 Q. I DON'T KNOW WHETHER WE HAVE IT AVAILABLE HERE OR NOT.
23 THE COURT: WHICH ONE IS IT? IS IT DEFENDANT'S OR
24 PLAINTIFF'S?
25 MR. WILSON: PLAINTIFF'S I THINK, YOUR HONOR.
3895
1 THE COURT: THIS IS THE PROBLEM WHEN WE HAVE ONE
2 COURT REPORTER -- OR ONE CLERK ON VACATION WHO TOOK ALL
3 THOSE EXHIBITS.
4 MR. WILSON: WELL, I CAN JUST SHOW HIM MY COPY AND
5 MAYBE ASK HIM THE QUESTION OFF THAT. FIRST OF ALL, I'LL
6 SHOW IT TO MR. STIRBA.
7 MR. STIRBA: THANK YOU.
8 Q. (BY MR. WILSON) I REPRESENT TO YOU FOR THE RECORD THAT
9 I THINK THIS IS DESIGNATED AS EXHIBIT 2, AND IT'S ENTITLED
10 DAVIS HOSPITAL MEDICAL CENTER AND SUBJECT ADMISSION CRITERIA
11 AS IT RELATES THE GEROPSYCHIATRIC UNIT. ASK YOU TO TAKE A
12 LOOK AT THAT DOCUMENT, IF YOU WOULD PLEASE.
13 A. YES.
14 Q. DO YOU RECOGNIZE THOSE CRITERIA?
15 A. JUST A SECOND, LET ME LOOK THROUGH HERE.
16 I'M SORRY, DID YOU MENTION SOMETHING ABOUT
17 EXCLUSIONARY CRITERIA?
18 Q. NO. I WAS TALKING ABOUT THE CRITERIA AS IT RELATES TO
19 PSYCHOTROPIC -- TOXICITY OF PSYCHOTROPIC --
20 A. UNDER ADMISSION CRITERIA, YES, SIR, I DO RECOGNIZE THIS.
21 Q. OKAY. SO ONE OF THE CRITERIA THAT'S SET FORTH IS FOR
22 PATIENTS, GERIATRIC PATIENTS WHO MAY BE SUFFERING FROM TOXIC
23 EFFECTS OF THERAPEUTIC PSYCHOTROPIC MEDICATIONS, RIGHT?
24 A. THAT WAS ONE OF THE ADMINISTRATION CRITERIA, YES, SIR.
25 Q. AND IF A PATIENT PRESENTED THEMSELVES TO YOU, YOU WOULD
3896
1 NEED TO EVALUATE FOR THAT PARTICULAR TYPE OF PROBLEM, WOULD
2 YOU NOT?
3 A. YES, SIR.
4 Q. DID YOU DO THAT IN RESPECT TO THESE PARTICULAR CASES?
5 A. YES, SIR.
6 Q. AND DID YOU IN DOING THAT REVIEW RECORDS FROM THE
7 INSTITUTIONS THAT HAD PREVIOUSLY BEEN RENDERING CARE?
8 A. IN ONE DEGREE OR ANOTHER, I SAW RECORDS I THINK ON ALL
9 THESE PEOPLE.
10 Q. IN ONE DEGREE OR ANOTHER.
11 A. YES, SIR. MAYBE NOT GOING BACK FOR YEARS, BUT AT LEAST
12 WHAT THEIR PREVIOUS MEDICATIONS HAD BEEN.
13 Q. BUT LET ME GET ONE THING CLEAR IN MY MIND. AS THE
14 MEDICAL DIRECTOR OF THE UNIT, WERE YOU NOT THE MEDICAL
15 DIRECTOR FINALLY AT ONE TIME?
16 A. I DON'T BELIEVE I WAS.
17 Q. OKAY. AS THE ASSOCIATE MEDICAL DIRECTOR, WERE THERE ANY
18 OTHER ASSOCIATE MEDICAL DIRECTORS OPERATING WITH YOU AT THE
19 TIME OF, SAY, DECEMBER THROUGH JAN -- DECEMBER OF '95
20 THROUGH JANUARY OF '96?
21 A. I WAS IT.
22 Q. YOU WERE IT. IN FACT, YOU'D BEEN IT FOR SOME TIME, HAD
23 YOU NOT?
24 A. SINCE MARCH OF THAT YEAR.
25 Q. SO THAT'S WHEN MR. JENSEN OR DR. JENSEN STEPPED DOWN?
3897
1 A. NO, SIR. HE WAS STILL MEDICAL DIRECTOR AT THAT TIME.
2 DURING DECEMBER OF '95 AND JANUARY '96.
3 Q. HE WAS STILL MEDICAL DIRECTOR?
4 A. YES, SIR.
5 Q. DID HE EVER COME INTO THE HOSPITAL DURING THAT TIME
6 FRAME?
7 A. HE CAME IN FROM TIME TO TIME.
8 Q. NOW, WE'VE HEARD HIS TESTIMONY PREVIOUSLY THAT THE TWO
9 OF YOU DIVIDED UP THE PATIENTS. DID HE TREAT PATIENTS
10 DURING THE TIME PERIOD OF DECEMBER '95 THROUGH JANUARY OF
11 '96?
12 A. I DON'T REMEMBER IF HE DID OR NOT.
13 Q. OKAY. THERE'S NO QUESTION THAT YOU WERE THE PRIMARY
14 PHYSICIAN, IS THAT CORRECT?
15 A. I HAD MOST OF THE PATIENTS AT THAT TIME.
16 Q. AS MEDICAL DIRECTOR OR AS ASSOCIATE MEDICAL DIRECTOR,
17 THOSE PATIENTS THAT YOU HAD CONTROL OVER, YOU WERE THE ONE
18 WHO MADE THE DECISION AS TO WHETHER OR NOT THEY WOULD BE
19 ACCEPTED TO THE UNIT, IS THAT RIGHT?
20 A. YES, SIR. AND I WAS THEIR ATTENDING PHYSICIAN.
21 Q. PARDON?
22 A. I WAS THE ATTENDING PHYSICIAN ON THOSE PARTICULAR
23 PATIENTS.
24 Q. AND AS ATTENDING PHYSICIAN, IT'S TRUE THAT ONCE THAT
25 DECISION WAS MADE TO ADMIT THEM, THERE WAS A PROCESS THEY
3898
1 WOULD GO THROUGH OF BEING PHYSICALLY EVALUATED?
2 A. YES, SIR.
3 Q. AND YOU WOULD DO THE PSYCHIATRIC EVAL?
4 A. YES, SIR.
5 Q. AND I THINK YOU TESTIFIED YOU'D DO A MENTAL STATUS
6 EVALUATION?
7 A. MENTAL STATUS EXAMINATION.
8 Q. EXAMINATION. AND THEN HOW WOULD YOU COMPLETE THAT
9 PSYCHIATRIC EVALUATION?
10 A. WELL, I WOULD GATHER THE HISTORY THAT WAS AVAILABLE FROM
11 PREVIOUS HOSPITALIZATIONS OR DOCTORS OR FAMILY, AND THE
12 NURSING ASSESSMENT, SOCIAL WORKER ASSESSMENT, AND MY
13 ASSESSMENT OF WHAT WAS GOING ON, AND DICTATE THE EVALUATION.
14 Q. AND AS PART OF THAT EVALUATION, YOU WOULD MAKE DECISIONS
15 RELATIVE TO A TREATMENT PLAN, IS THAT RIGHT?
16 A. YES, SIR.
17 Q. NOW, WE TALKED ABOUT THIS TEAM APPROACH THAT YOU WERE
18 INVOLVED IN. YOU WERE THE TEAM LEADER, IS THAT CORRECT?
19 A. I WAS DESIGNATED AS THE LEADER, YES, SIR.
20 Q. AND AS YOU'VE PREVIOUSLY TESTIFIED, YOU DID THE
21 DAY-TO-DAY TREATMENT OF PATIENTS IN THE MEDICAL UNIT.
22 A. YES, SIR.
23 Q. AND IF THERE WAS A PROBLEM AS TO A CASE, YOU WOULD BE
24 THE FINAL DECISION MAKER, IS THAT CORRECT?
25 A. YES, SIR.
3899
1 Q. SO IT'S TRUE AS THE ATTENDING PHYSICIAN, YOU ESSENTIALLY
2 DIRECT ALL OF THE CARE OF THE PATIENT.
3 A. YES, SIR.
4 Q. IT'S TRUE, IS IT NOT, THAT NURSES CANNOT PRESCRIBE
5 MEDICATIONS?
6 A. WELL, NO, SIR.
7 Q. EXCUSE ME, STRIKE THAT. THE NURSES ON THE GEROPSYCH
8 UNIT, WERE ANY OF THEM ELIGIBLE TO PRESCRIBE MEDICATIONS?
9 A. NOT AT THAT TIME, SIR.
10 Q. OKAY. SO ALL OF THE MEDICATION ORDERS FOR YOUR PATIENTS
11 CAME DIRECTLY FROM YOU.
12 A. NO, SIR.
13 Q. IN TERMS OF THE MEDICATIONS THAT WERE OF A PSYCHOTROPIC
14 NATURE, DID THOSE COME FROM YOU AS TO YOUR PATIENTS?
15 A. I THINK ALMOST HUNDRED PERCENT, YES, SIR.
16 Q. THE ONLY TIME, AS I UNDERSTAND IT, THAT THERE WOULD BE
17 OTHER MEDICATIONS WOULD BE IF A CONSULTANT RECOMMENDED
18 CERTAIN MEDICATIONS, OR I SHOULD SAY, PRESCRIBED CERTAIN
19 MEDICATIONS, IS THAT RIGHT?
20 A. WE HAD AN INFORMAL AGREEMENT THAT OTHER CONSULTANTS WERE
21 ALLOWED BY ME TO MAKE RECOMMENDATIONS, AND IF THEY FELT
22 NECESSARY, WRITE PRESCRIPTIONS, YES, SIR.
23 Q. OKAY. IN RESPECT TO THE FIVE PATIENTS THAT WE HAVE
24 BEFORE COURT HERE, CAN YOU THINK OF ONE INSTANCE WHERE A
25 CONSULTANT PRESCRIBED A MEDICATION?
3900
1 A. YES, SIR.
2 Q. AND WHICH INSTANCE WOULD THAT BE, SIR?
3 A. I BETTER GO TO THE PHYSICIAN'S ORDERS. FOR MRS. CRANE,
4 ON THE 1ST OF JANUARY '96, DR. DIENHART DECREASED HER
5 DURAGESIC PATCH TO 25 MICROGRAMS.
6 Q. OKAY. ISN'T IT TRUE, DOCTOR, YOU SUBSEQUENTLY RESCINDED
7 THAT ORDER AND INCREASED IT BACK TO 50 MICROGRAMS?
8 A. IT IS. SHALL I GO ON WITH THAT OR --
9 Q. IS THERE OTHER INSTANCES WHERE PHYSICIANS DIRECTED THE
10 PRESCRIPTION?
11 A. YES, THERE IS.
12 Q. OKAY. DO THAT, WOULD YOU PLEASE?
13 A. OKAY. OKAY. FOR MRS. LARSEN ON 12/8/95 MED RECORD WAS
14 453, DR. DIENHART ONCE AGAIN HAD ORDERED NISTANTIN AND
15 OXYGEN.
16 Q. I WAS REFERRING TO PSYCHOTROPIC MEDICATIONS, I THINK, IN
17 MY QUESTION.
18 A. OKAY. THEN I'LL RESTRICT THIS JUST TO THOSE.
19 OKAY. AND THEN ON THE 26TH, DR. DIENHART ORDERED
20 DILANTIN, WHICH WAS A PSYCHOTROPIC MEDICATION.
21 Q. CAN YOU TELL ME, HOW WAS THAT DILANTIN ORDERED?
22 A. I.V. I.V. LOAD WHICH MEANS BASICALLY, YOU START A LINE
23 AND PUT IT IN QUICKLY THROUGH A PIGGYBACK. HE ALSO ORDERED
24 ATIVAN I.V. ON THAT DATE.
25 Q. CAN YOU TELL US, WAS THE I.V. DISCONTINUED?
3901
1 A. YES, SIR.
2 Q. WHEN WAS IT DISCONTINUED?
3 A. ON THE 26TH, IT LOOKS LIKE ABOUT -- WHEN WAS IT? WELL,
4 ALL I CAN REALLY TELL IS ON THE 26TH, PROBABLY COUPLE HOURS
5 AFTER HE STARTED IT.
6 Q. OKAY. AND WHO DISCONTINUED THAT PARTICULAR ORDER?
7 A. I DID. I DISCONTINUED THE I.V.
8 Q. YOU DISCONTINUED THE I.V.?
9 A. YES, SIR.
10 Q. SO, CAN YOU TELL US WHETHER THE ATIVAN AND THE DILANTIN
11 WERE PRESCRIBED IN ANOTHER FORM? OR ADMINISTERED IN ANOTHER
12 FORM?
13 A. APPARENTLY NOT.
14 Q. OKAY. DOCTOR, YOU WOULD AGREE, WOULD YOU NOT, THAT THE
15 MONITORING OF A PATIENT IS VERY CRUCIAL IN YOUR ABILITY TO
16 ASSESS THE PATIENT'S PROGRESS OR DETERIORATION?
17 A. YES, SIR.
18 Q. AND YOU WOULD FURTHER AGREE THAT THE PATIENT NEEDS TO BE
19 EVALUATED IN SOME INSTANCES ON A DAILY BASIS, AND OTHER
20 INSTANCES, EVEN HOURLY, IS THAT CORRECT?
21 A. I'M SORRY. YOU ASKED ME TO LOOK THROUGH ALL THESE
22 RECORDS FOR INSTANCES OF OTHER DOCTORS PRESCRIBING --
23 Q. UH-HUH.
24 A. -- I HAVEN'T FINISHED. DO YOU WANT ME TO STOP NOW OR --
25 Q. YEAH, I DO.
3902
1 A. OKAY.
2 Q. IF YOU WOULD PLEASE.
3 A. WHAT WAS YOUR QUESTION AGAIN?
4 Q. MY QUESTION IS, WE TALKED ABOUT THE ASSESSMENT AND
5 MONITORING OF THE PATIENTS. AND YOU SAID IT'S VERY
6 CRITICAL, IT'S AN ESSENTIAL PART OF YOUR -- OF THE PROCESS,
7 IS THAT RIGHT?
8 A. TO MONITOR THE PATIENTS, YES, SIR.
9 Q. OKAY. AND IF YOU'RE PRESCRIBING CERTAIN TYPES OF
10 MEDICATIONS, I ASSUME THAT MONITORING NEEDS TO BE DONE IN
11 SOME INSTANCES ON A MORE FREQUENT BASIS THAN IT DOES IN
12 OTHER INSTANCES, IS THAT CORRECT?
13 A. YES, SIR.
14 Q. IN RESPECT TO THE ADMINISTRATION OF CERTAIN CENTRAL
15 NERVOUS SYSTEM DEPRESSANTS, IT IS NOT CRITICAL THEN TO
16 MONITOR THOSE DRUGS ON A FREQUENT BASIS?
17 A. YES, SIR, DEPENDING ON THE DEFINITION OF FREQUENT, I
18 THINK YES.
19 Q. AND YOU TELL ME, IF YOU WERE ADMINISTERING MORPHINE HOW
20 FREQUENTLY DO YOU ADMONISH -- DO YOU MONITOR THE PATIENT'S
21 RESPIRATIONS AND OTHER VITAL FUNCTIONS?
22 MR. STIRBA: YOUR HONOR, I'M GONNA OBJECT TO THAT
23 QUESTION AS IRRELEVANT, YOUR HONOR. WITH RESPECT TO THE
24 CARE OF THESE FIVE PATIENTS, I DON'T HAVE AN OBJECTION TO
25 IT.
3903
1 THE COURT: WERE YOU ASKING ABOUT THESE FIVE
2 PATIENTS?
3 MR. WILSON: WELL, I THINK -- I THINK HIS
4 FAMILIARITY WITH IN GENERAL, YOUR HONOR, IS IMPORTANT IN
5 RESPECT TO --
6 THE COURT: OKAY. WELL, LET'S DEAL WITH THAT SHORT
7 BACKGROUND AND THEN GET TO THE PATIENTS.
8 Q. (BY MR. WILSON) YOU'VE PREVIOUSLY AGREED, DOCTOR, THAT
9 IT NEEDS TO BE -- CERTAIN MEDICATIONS NEED TO BE MONITORED
10 MORE FREQUENTLY.
11 A. YES, SIR.
12 Q. THE QUESTION WAS, IN YOUR EXPERIENCE AS TO MORPHINE, HOW
13 OFTEN DO YOU MONITOR, SAY, THE VITAL STATS OR THE VITAL
14 SIGNS OF A PATIENT?
15 A. I WOULD EXPECT THE NURSES WOULD PROBABLY MONITOR AFTER
16 EACH DOSE.
17 Q. SO IT WOULD DEPEND ON THE ROUTINE OF THE DOSAGE?
18 A. YES, SIR. HOW IT -- YOU MEAN THE FREQUENCY OF THE
19 DOSAGE, YES, SIR --
20 Q. YES.
21 A. -- INTERVAL.
22 Q. AND YOU RELY HEAVILY ON THOSE NURSES' OBSERVATIONS, DO
23 YOU NOT?
24 A. ABSOLUTELY.
25 Q. I ASSUME THAT YOU ALSO RELY ON THE NURSES TO ALERT YOU
3904
1 IF THERE ARE ANY PROBLEMS ASSOCIATED WITH THE PATIENTS, IS
2 THAT CORRECT?
3 A. YES, SIR.
4 Q. AND I ASSUME YOU HAVE A GOOD RELATIONSHIP OR DID HAVE A
5 GOOD RELATIONSHIP WITH THE NURSES ON THE GEROPSYCH UNIT, IS
6 THAT CORRECT?
7 A. WITH SOME BETTER THAN OTHERS.
8 Q. OKAY. BUT YOU GENERALLY HAD CONFIDENCE IN THEIR
9 ABILITIES TO ASSESS AND EVALUATE THE PATIENTS, IS THAT TRUE?
10 A. OVERALL, YES.
11 Q. IF YOU HAVE CONFIDENCE IN THEIR ABILITIES TO MONITOR AND
12 ASSESS THE PATIENTS, CAN YOU TELL ME WHETHER OR NOT YOU
13 WOULD ALLOW THEM TO USE THEIR DISCRETION IN TERMS OF
14 ADMINISTERING THESE MEDICATIONS?
15 MR. STIRBA: I'M GONNA OBJECT AS TO RELEVANCY, YOUR
16 HONOR. IT'S NOT WITH RESPECT TO THESE FIVE PATIENTS. IT'S
17 A BROAD HYPOTHETICAL.
18 MR. WILSON: I'LL LIMIT THAT ONE TO THESE FIVE
19 PATIENTS.
20 Q. DID YOU ALLOW THE NURSES IN THE INSTANCE OF THESE FIVE
21 PATIENTS THE ABILITY TO ASSESS AND DETERMINE WHETHER OR NOT
22 THE MEDICATIONS SHOULD BE ADMINISTERED?
23 A. MANY OF THESE PATIENTS HAD P.R.N. MEDICATIONS, AND THAT
24 IS IN THE PURVIEW OF THE NURSE TO MAKE THAT DECISION --
25 Q. OKAY.
3905
1 A. -- WHETHER OR NOT -- SO THE ANSWER IS YES.
2 Q. IN RESPECT TO THE USE OF MORPHINE, DOCTOR, AS IT RELATES
3 TO THESE FIVE PATIENTS --
4 A. YES, SIR, I'M TALKING ABOUT P.R.N. MORPHINE.
5 Q. OKAY. DO YOU KNOW HOW MANY TIMES YOU ALLOWED A P.R.N.
6 MORPHINE DOSAGE TO BE ADMINISTERED TO THESE FIVE PATIENTS?
7 A. I'D HAVE TO -- NO, SIR, I DON'T HAVE THAT JUST OFF THE
8 TOP OF MY HEAD. I GUESS IN THE SENSE THAT THEY COULD JUST
9 ABOUT GIVE IT AT ANY TIME, SOME AS OFTEN AS EVERY TWO HOURS,
10 I GUESS IT WAS PRETTY FREQUENT.
11 Q. AS I UNDERSTAND IT, DOCTOR, P.R.N. MEANS AS NEEDED.
12 A. YES, SIR.
13 Q. IF IT'S A ROUTINE ORDER EVERY THREE HOURS OR EVERY FOUR
14 HOURS, THAT MEANS THEY ADMINISTERED IT, DOES IT NOT?
15 A. GENERALLY, YES, SIR.
16 Q. GENERALLY. NURSE HAS A DUTY IN AND OF HERSELF TO
17 EVALUATE A PATIENT TO SEE WHETHER OR NOT THEY'RE -- THE DRUG
18 IS HAVING A TOXIC EFFECT, DON'T THEY?
19 A. YES, SIR, A DUTY.
20 Q. AND THEY HAVE A DUTY NOT TO HARM THE PATIENT, DON'T
21 THEY?
22 A. YES, SIR.
23 Q. AND SO THEY COULD WITHHOLD THAT PARTICULAR
24 ADMINISTRATION OF THE DRUG, ISN'T THAT RIGHT?
25 A. YES, SIR.
3906
1 Q. BUT THEN THEY WOULD HAVE TO ACCOUNT TO YOU FOR THAT, IS
2 THAT CORRECT?
3 A. WHAT DOES THAT MEAN?
4 Q. WELL, IF THEY WITHHOLD THE MEDICATION THAT YOU'VE
5 ORDERED TO BE ADMINISTERED, I ASSUME THAT YOU'RE GOING TO
6 WANT TO KNOW WHY.
7 A. YES, SIR.
8 Q. AND IF YOU DISAGREE WITH THAT, YOU'RE GONNA TELL THEM
9 SO, AREN'T YOU?
10 A. MOST LIKELY, YES, SIR.
11 Q. AND YOU DID SO IN THIS PARTICULAR CASE, DIDN'T YOU?
12 A. IN ONE INSTANCE, YES, SIR.
13 Q. AND THAT WAS THE NURSE THAT WITHHELD MEDICATIONS AS IT
14 RELATED TO -- I THINK IT WAS JUDITH LARSEN, WASN'T IT?
15 A. YES, SIR.
16 Q. AND IN FACT, YOU WERE UPSET WITH THAT, WEREN'T YOU?
17 A. I WAS CONCERNED.
18 Q. YOU WERE CONCERNED?
19 A. YES, SIR.
20 Q. YOU WERE SO CONCERNED, YOU WROTE A NOTE THAT YOU DIDN'T
21 WANT ANY MORE MORPHINE WITHHELD UNLESS YOU WERE CALLED, IS
22 THAT RIGHT?
23 A. NO, SIR.
24 Q. YOU DIDN'T SAY THAT?
25 A. ON THE 3RD, I WROTE AN ORDER SAYING IF ANY MORPHINE IS
3907
1 TO BE WITHHELD, PLEASE CALL ME FIRST.
2 Q. OKAY. SO I GUESS WE'RE TALKING A BIT OF SEMANTICS HERE.
3 THE QUESTION WAS, YOU DIDN'T WANT ANY MORPHINE WITHHELD
4 UNLESS YOU WERE CALLED.
5 A. WELL, SEE, IT DOESN'T SAY, DON'T HOLD IT. IT JUST SAYS,
6 IF IT'S GOING TO BE WITHHELD, PLEASE CALL ME.
7 Q. I SEE. I ASSUME THE NURSE DID NOT WITHHOLD ANY MORE
8 MORPHINE, IS THAT CORRECT?
9 A. OFF THE TOP OF MY HEAD, I WOULDN'T KNOW. ARE YOU
10 TALKING ABOUT TRACY SCHOLLS?
11 Q. AS TO JUDITH LARSEN.
12 A. I DON'T THINK SHE WAS WORKING WITH MISS LARSEN ANYMORE.
13 SO I GUESS SHE DIDN'T.
14 Q. DO YOU REMEMBER WHY THE NURSE WITHHELD THE MORPHINE AS
15 IT RE -- IN RESPECT TO MISS LARSEN?
16 A. YES, SIR.
17 Q. WHY WAS THAT?
18 A. SHE CHARTED THAT THE RESPIRATORY RATE WAS LOW.
19 Q. IN FACT, THOSE RESPIRATORY RATES I THINK SHOWED 6, 6,
20 AND 8 OR IN THAT NEIGHBORHOOD FOR THE LAST 24-HOUR PERIOD,
21 IS THAT RIGHT?
22 A. NO, SIR.
23 Q. YOU DON'T RECALL THAT?
24 A. NO, YOU'RE NOT RIGHT.
25 Q. DO YOU RECALL THAT SHE'S -- SHE CHARTED THAT THEY WERE 5
3908
1 TO 8?
2 A. YES, SIR.
3 Q. I GUESS THAT DOESN'T COMPORT WITH 6, 6, AND 8?
4 A. YOU SAID FOR THE LAST 24-HOUR PERIOD. HER REPORTING HAD
5 TO DO WITH A PERIOD OF I THINK AROUND TEN OR 12 HOURS, WHICH
6 OCCURRED, OH, PERHAPS 30 HOURS BEFORE HER DEATH UNTIL ABOUT
7 20 HOURS BEFORE HER DEATH. SHE HAD LATER RESPIRATORY RATES
8 WHICH WERE HIGHER THAN THAT.
9 Q. YOU USE --
10 A. I HAVE THE CHART RIGHT HERE. IF YOU'D LIKE ME, I --
11 Q. DO YOU USE -- DOCTOR, DO YOU USE THE P.D.R. AS A
12 REFERENCE FOR ADMINISTRATION OF MEDICATION?
13 A. YES, SIR, OCCASIONALLY I DO.
14 Q. AND DO YOU EVER USE THE GERIATRIC DOSING HANDBOOK IN
15 YOUR SPECIALTY AS GERIATRIC PSYCHIATRIST?
16 A. I NEVER USED IT BEFORE THIS TRIAL.
17 Q. SO YOU DIDN'T USE IT BACK DURING THIS RELEVANT TIME
18 FRAME?
19 A. NO, SIR. I USED OTHER GUIDEBOOKS AT THAT TIME.
20 Q. I SEE. WHAT BOOKS DID YOU USE, DOCTOR?
21 A. TEXTBOOK OF GERIATRIC PSYCHIATRY. THE AMERICAN MEDICAL
22 ASSOCIATION DRUG EVALUATION. THOSE SORTS.
23 Q. NOW, IN THE P.D.R., IN THE 1995 P.D.R., I'M GONNA READ A
24 STATEMENT AND YOU TELL ME WHETHER YOU DISAGREE -- AGREE OR
25 DISAGREE. RESPIRATORY DEPRESSION -- THIS IS UNDER WARNINGS
3909
1 FOR MORPHINE SULFATE. CLINICAL PHARMACOLOGY .
2 A. '95 P.D.R.
3 Q. '95 P.D.R. RESPIRATORY DEPRESSION IS THE CHIEF HAZARD
4 OF ALL MORPHINE PREPARATIONS. RESPIRATORY DEPRESSION OCCURS
5 MOST FREQUENTLY IN ELDERLY AND DEBILITATED PATIENTS.
6 WOULD YOU AGREE WITH THAT STATEMENT?
7 A. I REALLY DON'T KNOW IF I COULD OR NOT. I DON'T KNOW
8 WHERE THEY GOT THAT EXACTLY. IT'S KIND OF --
9 Q. WELL, I'LL GO ON AND READ A LITTLE BIT FURTHER. AND
10 THOSE SUFFERING FROM CONDITIONS ACCOMPANIED BY HYPOXIA OR
11 HYPO -- HYPERCAPNIA, AND EVEN MODERATE THERAPEUTIC DOSES MAY
12 BE DANGEROUS -- MAY DANGEROUSLY DECREASE PULMONARY
13 VENTILATION.
14 A. IN A GENERAL WAY, I CAN AGREE WITH THAT.
15 Q. IN A GENERAL WAY.
16 A. YES, SIR.
17 Q. ISN'T THAT WHAT WE'RE DEALING HERE WITH THESE FIVE
18 PATIENTS WAS ELDERLY AND DEBILITATED PATIENTS?
19 A. WE'RE NOT DEALING GENERALLY HERE. WE'RE DEALING WITH
20 INDIVIDUAL PATIENTS.
21 Q. ISN'T -- WEREN'T EACH ONE OF THOSE PATIENTS -- THEY WERE
22 OBVIOUSLY OF GERIATRIC AGE --
23 A. YES, SIR.
24 Q. -- ISN'T THAT CORRECT?
25 A. OBVIOUSLY.
3910
1 Q. AND ISN'T YOUR TESTIMONY HERE IN COURT TODAY THAT THEY
2 WERE ALL SUFFERING FROM VARIOUS DISEASES PROCESSES AT THE
3 TIME --
4 A. YES, SIR.
5 Q. -- OF THEIR ADMISSION?
6 A. YES, SIR.
7 Q. BUT YET, YOU ADMITTED THOSE PATIENTS TO THE GERIATRIC
8 UNIT, DIDN'T YOU?
9 A. YES, SIR.
10 Q. YOU CONSIDERED THEM STABLE ENOUGH TO ADMIT TO THE
11 GERIATRIC UNIT, DIDN'T YOU?
12 A. YES, SIR.
13 Q. DO YOU BELIEVE THAT THE DURATION OF EFFECT OF MORPHINE
14 IS LONGER IN THE ELDERLY?
15 A. AS A GENERAL STATEMENT, THAT'S TRUE, BUT IN INDIVIDUAL
16 CASES, IT MAY BE THE SAME AS ANY OTHER ADULT.
17 Q. AND TO DETERMINE IN THOSE INDIVIDUAL CASES, YOU NEED TO
18 ASSESS AND MONITOR THE PATIENT, RIGHT?
19 A. YES, SIR.
20 Q. DO YOU BELIEVE THAT IF MORPHINE IS GIVEN IN SUFFICIENT
21 QUANTITIES THAT IT CAN RESULT IN DEATH?
22 A. YES, SIR.
23 Q. LET ME SHOW YOU WHAT'S BEEN MARKED AS STATE'S EXHIBIT 40
24 AND ASK YOU TO TAKE A LOOK AT THAT IF YOU WOULD PLEASE.
25 A. I'VE SEEN IT BEFORE.
3911
1 Q. OKAY. AS TO THE IMMEDIATE EFFECTS THAT ARE LISTED THERE
2 ON THAT PARTICULAR EXHIBIT, PAIN RELIEF, YOU AGREE WITH
3 THAT?
4 A. IF IT'S GIVEN IN A SUFFICIENT QUANTITY, YES, SIR.
5 Q. SLEEPINESS AND COMA. IS THAT AN IMMEDIATE EFFECT OF
6 MORPHINE?
7 A. IF ENOUGH IS GIVEN.
8 Q. OKAY.
9 A. SOME DOSES ACTUALLY MIGHT GET AN INCREASED ALERTNESS.
10 Q. DECREASED BREATHING. IS THAT AN IMMEDIATE EFFECT OF
11 MORPHINE?
12 A. IN A HIGH ENOUGH DOSE.
13 Q. LOSS OF COUGH REFLEX, ASPIRATION. CAN THAT BE AN EFFECT
14 OF MORPHINE, AN IMMEDIATE EFFECT?
15 A. THE LOSS OF COUGH REFLEX I BELIEVE IS TRUE.
16 ASPIRATION'S NOT NECESSARILY TRUE AT ALL.
17 Q. OKAY. LOW BLOOD PRESSURE. COULD THAT BE AN IMMEDIATE
18 EFFECT OF MORPHINE?
19 A. I'M NOT SURE ABOUT THAT ONE. I'VE BEEN TOLD THAT IT'S
20 NOT.
21 Q. WHAT'S HYPOXIA?
22 A. HYPOXIA MEANS VERY LITTLE OXYGEN.
23 Q. SO IF THERE IS VERY LITTLE OXYGEN, IS HYPOXIA SOMETHING
24 THAT'S A RESULT, AN IMMEDIATE EFFECT OF MORPHINE?
25 A. NO, SIR.
3912
1 Q. YOU DON'T BELIEVE THAT?
2 A. NO, SIR.
3 Q. EVEN THOUGH I JUST READ YOU THE P.D.R. THAT SAYS IT IS?
4 A. WELL, SOME PEOPLE BREATHE BETTER WHEN THEY'VE HAD A
5 LITTLE MORPHINE, SO YOU COULD ACTUALLY HAVE AN IMPROVEMENT
6 IN THEIR OXYGENATION.
7 Q. SO YOU DISAGREE WITH IT.
8 A. YES, SIR.
9 Q. DECREASED FOOD AND WATER INTAKE, WOULD THAT BE AN
10 IMMEDIATE EFFECT THAT COULD RESULT AS A --
11 A. NO, SIR.
12 Q. -- MORPHINE? NO?
13 A. NO, SIR.
14 Q. IF A PERSON --
15 A. OH, I'M SORRY, DID YOU SAY, COULD IT BE?
16 Q. YES.
17 A. OH, YES, SIR, IT COULD BE.
18 Q. AND IT'S A SECONDARY EFFECT, RIGHT?
19 A. YES, SIR.
20 Q. IF A PERSON IS SO SEDATED THAT THEY CAN'T TAKE IN FOOD
21 AND WATER, OBVIOUSLY, THAT'S AN EFFECT OF THE MORPHINE, IS
22 IT NOT?
23 A. IT COULD BE.
24 Q. WELL, I GUESS THE QUESTION WAS TO YOU, IF THE PERSON IS
25 SO SEDATED AND THEY CAN'T TAKE IN FOOD AND THEY CAN'T DRINK
3913
1 WATER, THAT'S AN EFFECT THAT THE MORPHINE -- THAT'S A RESULT
2 OF THE EFFECT OF THE MORPHINE, ISN'T IT?
3 MR. STIRBA: I'M GONNA OBJECT. RELEVANCY.
4 HYPOTHETICAL. IT'S NOT DEALING WITH THESE FIVE PATIENTS.
5 AND IT'S CERTAINLY BEYOND THE SCOPE OF DIRECT EXAMINATION.
6 THE COURT: OKAY. ARE YOU ASKING ABOUT THESE FIVE
7 PATIENTS?
8 MR. WILSON: WELL, AGAIN, YOUR HONOR, I THINK WE'RE
9 TALKING ABOUT THE EFFECTS OF THE USE OF MORPHINE AND WE'RE
10 JUST -- I'M JUST ASKING HIM THE QUESTION OF WHETHER OR NOT
11 THAT CAN BE AN EFFECT.
12 MR. STIRBA: BUT HE'S NOT HERE AS AN EXPERT. HE'S
13 HERE TAKING THE STAND ABOUT WHAT HE DID FACTUALLY WITH
14 RESPECT TO THESE FIVE PATIENTS, AND THAT'S WHAT HE CAN
15 TESTIFY ABOUT.
16 MR. WILSON: I WANT TO KNOW WHETHER HE BELIEVES
17 WHETHER OR NOT DECREASED FOOD AND WATER INTAKE CAN BE A
18 RESULT OF EFFECT OF MORPHINE. THAT'S ALL I'M ASKING.
19 THE COURT: OKAY. CAN YOU ANSWER THAT QUESTION?
20 THE WITNESS: YES, YOUR HONOR, IT COULD BE.
21 Q. (BY MR. WILSON) OKAY. NOW, YOU SEE ON THE OTHER SIDE
22 OF THE BOARD, THE LONG-TERM EFFECTS?
23 A. YES, SIR.
24 Q. PNEUMONIA?
25 A. I SEE IT.
3914
1 Q. IS THAT A LONG-TERM EFFECT OR CAN THAT BE A LONG-TERM
2 EFFECT OF MORPHINE?
3 MR. STIRBA: OBJECT. IRRELEVANT, BEYOND THE SCOPE,
4 AND NOT DEALING WITH THESE PARTICULAR FIVE PATIENTS.
5 THE COURT: ARE YOU JUST GONNA GO THROUGH EACH ONE
6 OF THESE?
7 MR. WILSON: YES, I'M JUST GONNA ASK HIM --
8 THE COURT: OKAY. I'LL LET YOU GO THROUGH THAT,
9 AND THEN LET'S GET TO THE FIVE PATIENTS.
10 Q. (BY MR. WILSON) ALL RIGHT. ORGAN DAMAGE?
11 A. NO, SIR.
12 Q. YOU DON'T BELIEVE MORPHINE CAN CAUSE ORGAN DAMAGE.
13 A. WELL, THE EXPERT THE OTHER DAY TESTIFIED THAT ORGAN
14 DAMAGE IS NOT CAUSED BY MORPHINE. OPIOIDS DO NOT --
15 Q. I'M ASKING YOU WHAT YOU BELIEVE.
16 A. I DO NOT BELIEVE THAT ORGAN DAMAGE IS CAUSED BY
17 MORPHINE.
18 Q. OKAY. DO YOU THINK ORGAN DAMAGE CAN RESULT AS A
19 SECONDARY EFFECT OF MORPHINE?
20 MR. STIRBA: YOUR HONOR, I'M GONNA OBJECT.
21 IRRELEVANT. HE'S ALREADY ASKED ABOUT IT.
22 THE COURT: OVERRULED.
23 THE WITNESS: CAN YOU -- YOU'RE TALKING ABOUT AS
24 A --
25 Q. (BY MR. WILSON) SECONDARY EFFECT OF MORPHINE.
3915
1 A. YES, SIR.
2 Q. HOW ABOUT DEHYDRATION, MALNUTRITION?
3 A. NOT A PRIMARY LONG-TERM EFFECT. IT COULD BE SECONDARY.
4 MR. WILSON: OKAY. MAY I HAVE JUST A MINUTE, YOUR
5 HONOR?
6 THE COURT: YES.
7 Q. (BY MR. WILSON) DOCTOR, DO YOU HAVE THE EXHIBIT ON
8 ELLEN ANDERSON?
9 A. THE GRAY FOLDER HERE? YES, SIR.
10 Q. YOU TESTIFIED TODAY THAT YOU HAVE A RECOLLECTION I GUESS
11 OF ELLEN ANDERSON, IS THAT CORRECT?
12 A. YES, SIR.
13 Q. AND ELLEN ANDERSON WAS ADMITTED TO THE GEROPSYCH UNIT ON
14 THE 29TH OF DECEMBER, IS THAT CORRECT?
15 A. YES, SIR, OF '95.
16 Q. FIRST OF ALL, DOCTOR, DID YOU ENTER SOME TELEPHONE
17 ORDERS AS TO ELLEN ANDERSON'S CARE?
18 A. YES, SIR.
19 Q. DO YOU KNOW WHEN THESE ORDERS WERE ENTERED?
20 A. ON THE 29TH AND 30TH.
21 Q. THE FIRST ORDERS THAT WERE ENTERED, DOCTOR, WHEN WERE
22 THEY ENTERED?
23 A. ON THE 29TH.
24 Q. AT WHAT TIME?
25 A. IT'S IMPOSSIBLE TO TELL EXACTLY, BUT THEY WERE NOTED AT
3916
1 2130. AND SOME OF THE MEDICATION FROM THESE ORDERS WAS
2 GIVEN AT WHAT WOULD BE 1930.
3 Q. IN FACT, THE MORPHINE, THE 10 MILLIGRAMS OF MORPHINE
4 THAT YOU ORDERED WAS GIVEN --
5 A. EXACTLY.
6 Q. -- AT 9:30, WASN'T IT?
7 A. 7:30.
8 Q. 7:30, EXCUSE ME.
9 A. 1930, YES, SIR.
10 Q. IS IT YOUR TESTIMONY HERE TODAY THAT YOU DID THIS MENTAL
11 STATUS EVALUATION OF ELLEN ANDERSON ON THE 29TH?
12 A. YES, SIR.
13 Q. DO YOU REMEMBER WHAT TIME YOU DID THAT, DOCTOR?
14 A. NO, NOT PRECISELY. SOMETIME AROUND 5:00 P.M.
15 Q. AROUND 5:00 P.M.?
16 A. YES, SIR.
17 Q. AND DO YOU REMEMBER WHERE THAT MENTAL STATUS EVALUATION
18 WAS CONDUCTED?
19 A. IT WAS IN THE GEROPSYCH UNIT.
20 Q. DID YOU SEE ANY OTHER PATIENTS AT THAT TIME?
21 A. I DON'T RECALL IF I DID OR NOT. I WOULD HAVE SEEN ALL
22 THE PATIENTS THAT DAY.
23 Q. IN FACT, YOU'D SEEN THEM ALL EARLIER THAT DAY, IS THAT
24 RIGHT?
25 A. BELIEVE SO.
3917
1 Q. DO YOU RECALL WHETHER OR NOT THERE WERE ANY OTHER
2 PATIENTS ADMITTED TO THE GEROPSYCH UNIT ON THAT DAY?
3 A. YES, SIR.
4 Q. DO YOU RECALL WHO THAT WAS?
5 A. NO, SIR.
6 Q. DID YOU SEE THAT PATIENT ON THAT DAY?
7 A. WELL, THERE WERE TWO OTHERS ADMITTED THAT DAY, BUT I
8 DON'T RECALL THEIR NAMES.
9 Q. THERE WERE TWO OTHER PATIENTS ADMITTED THAT DAY?
10 A. YES, SIR.
11 Q. BUT YOU THINK SOMETIME AROUND 5:00 O'CLOCK, YOU VISITED
12 WITH ELLEN ANDERSON?
13 A. YES, SIR.
14 Q. THAT'S ACCORDING TO YOUR RECOLLECTION.
15 A. YES, AND AS -- WHAT DO YOU CALL IT, REFRESHED BY THIS
16 CHART.
17 Q. BUT YOU DIDN'T DICTATE YOUR REPORT AT THAT TIME, IS THAT
18 CORRECT?
19 A. THAT'S CORRECT.
20 Q. DID YOU MAKE NOTES?
21 A. YES, SIR.
22 Q. AND WHERE DID YOU MAKE THOSE NOTES?
23 A. WELL, LET'S SEE, IN THE PROGRESS NOTES, PHYSICIAN
24 PROGRESS NOTES.
25 Q. SO WOULD YOU HAVE MADE THOSE NOTES JUST AFTER YOU DID
3918
1 THE MENTAL ASSESSMENT ON HER?
2 A. MOST LIKELY, YES, SIR.
3 Q. WAS ANYBODY PRESENT IN THE ROOM WHILE YOU DID THAT
4 MENTAL ASSESSMENT ON HER?
5 A. I DON'T REMEMBER.
6 Q. YOU DON'T REMEMBER?
7 A. NO, SIR, I DON'T RECALL AT ALL.
8 Q. OKAY. DO YOU REMEMBER WHETHER IT WAS THE ROOM SHE WAS
9 ASSIGNED TO THAT YOU'D CONDUCTED THIS IN?
10 A. I CAN'T TELL YOU IF IT WAS IN A ROOM. IT COULD HAVE
11 BEEN IN A HALLWAY OR IT COULD HAVE BEEN DOWNSTAIRS AT
12 ADMITTING. COULD HAVE BEEN PRETTY MUCH ANYWHERE IN THE
13 HOSPITAL.
14 Q. AND HOW LONG DID THIS ASSESSMENT TAKE YOU?
15 A. I DON'T RECALL PRECISELY.
16 Q. AND YOU'D PREVIOUSLY CALLED IN THE TELEPHONE ORDER? OR
17 DID YOU WAIT UNTIL AFTER THE ASSESSMENT TO CALL IN THE
18 TELEPHONE ORDERS?
19 A. I CALLED THEM IN AFTER THE ASSESSMENT.
20 Q. WELL, IF YOU WERE AT THE HOSPITAL MAKING THE ASSESSMENT
21 AND YOU HAD TIME TO WRITE IN YOUR NOTES, WHY DIDN'T YOU AT
22 THAT TIME JUST WRITE IN THE ORDERS?
23 A. WELL, I HAVE A CELL PHONE AND I COULD CALL IT IN.
24 Q. SO DID YOU CALL FROM THE HOSPITAL?
25 A. I REALLY DON'T KNOW WHERE I CALLED FROM. MIGHT HAVE
3919
1 BEEN THE HOSPITAL, MY CAR, MY HOUSE, I DON'T KNOW.
2 Q. DO YOU REMEMBER RECEIVING A NUMBER OF PAGES ON THAT
3 PARTICULAR DATE?
4 A. NO, SIR.
5 Q. YOU DO?
6 A. I DON'T REMEMBER ANY SPECIFIC PAGES. I GET PAGED WHEN
7 I'M PRACTICING 20 OR 30 TIMES A DAY. I'M SURE I GOT PAGED
8 THAT DAY.
9 Q. DO YOU REMEMBER ANY PAGES IN CONNECTION WITH JUDITH
10 LARSEN?
11 A. NOT SPECIFICALLY.
12 Q. IF I WERE TO TELL YOU THE RECORDS REFLECT YOU WERE PAGED
13 ABOUT SIX TIMES FROM 7:00 O'CLOCK UNTIL 3:15, WOULD YOU HAVE
14 ANY RECOLLECTION OF THAT, SIR?
15 A. WOULD THAT BE WHAT DATE, THE 29TH?
16 Q. 29TH.
17 A. NO, SIR, I WOULDN'T.
18 Q. BUT YOU WOULDN'T TAKE ISSUE WITH THAT, I TAKE IT?
19 MR. STIRBA: WELL, I'M --
20 THE WITNESS: NOT ON THE FACE OF IT.
21 Q. (BY MR. WILSON) YOU PREVIOUSLY TESTIFIED ABOUT A
22 CONVERSATION YOU HAD WITH -- I THINK IT WAS LAURIE WILLSON,
23 NOW STEVENSON, IS THAT CORRECT?
24 A. YES, SIR.
25 Q. DID YOU ORDER MORPHINE IN YOUR ORIGINAL TELEPHONE ORDER?
3920
1 A. I BELIEVE I DID. YES, SIR.
2 Q. WAS THAT BEFORE OR AFTER YOU TALKED WITH LAURIE
3 STEVENSON?
4 A. WHEN I ORDERED THE MORPHINE?
5 Q. UH-HUH.
6 A. I WOULD THINK I WOULD HAVE ORDERED IT WHEN I TALKED WITH
7 LAURIE STEVENSON. SHE TOOK THE ORDER.
8 Q. NOW, I THINK YOUR TESTIMONY WAS, IT WAS LAURIE STEVENSON
9 WHO TOLD YOU THAT SHE WAS IN SEVERE PAIN.
10 A. YES, SIR.
11 Q. IN YOUR INITIAL MENTAL ASSESSMENT, DID YOU MAKE ANY
12 NOTES THAT SHE WAS SUFFERING FROM SEVERE PAIN?
13 A. YES, SIR. ACTUALLY, IT SAYS FOR DISCOMFORT.
14 Q. FOR DISCOMFORT. SO SEVERE PAIN EQUATES TO DISCOMFORT?
15 A. SEVERE PAIN COULD BE INCLUDED UNDER THE RUBRIC OF
16 DISCOMFORT, YES, SIR. TYPE OF.
17 Q. I ASSUME, SIR, YOU REMEMBER THE PHYSICAL DESCRIPTION OF
18 THIS LADY AT THE TIME YOU OBSERVED HER?
19 A. AT THIS TIME? I DON'T REMEMBER HER.
20 Q. IF I WERE TO TELL YOU SHE WEIGHED 81 POUNDS, WOULD THAT
21 REFRESH YOUR MEMORY?
22 A. WELL, I'VE SEEN THAT IN THE RECORDS, BUT I DON'T HAVE A
23 VISUAL PICTURE OF MISS ANDERSON ANYMORE.
24 Q. OKAY. IN TERMS OF PRESCRIBING MORPHINE FOR THIS
25 PARTICULAR PATIENT, IT'S TRUE, IS IT NOT, THAT BOTH AGE AND
3921
1 WEIGHT ARE CRITICAL FACTORS IN TERMS OF THE DOSAGE AMOUNT?
2 A. I WOULDN'T CALL IT CRITICAL IN THE SENSE OF WEIGHT. AGE
3 IS PROBABLY MORE IMPORTANT. I DON'T KNOW IF I'D EVEN CALL
4 IT CRITICAL THERE.
5 Q. IF CAN YOU TELL ME IN YOUR MENTAL ASSESSMENT, WAS THIS
6 PATIENT ABLE TO SWALLOW TO YOUR -- TO YOUR EVALUATION?
7 A. I CAN'T.
8 Q. CAN YOU TELL ME WHETHER THE PATIENT, IF SHE WAS
9 SCREAMING, WOULD SHE BE ABLE TO EAT?
10 A. IF SHE WAS SCREAMING, WOULD SHE BE ABLE TO EAT?
11 Q. WELL, LET ME ASK IT THIS WAY: YOU'VE GOT SEVERAL TYPES
12 OF CONDUCT GOING ON HERE WHERE SHE'S EXHIBITING CERTAIN
13 TYPES OF BEHAVIOR, IS THAT RIGHT?
14 A. YES, SIR.
15 Q. OKAY. SOME OF THAT CONDUCT IS SCREAMING?
16 A. YES, SIR.
17 Q. SOME OF THAT CONDUCT APPARENTLY WAS KICKING OR
18 THRASHING?
19 A. YES, SIR.
20 Q. OKAY. SOME OF THAT CONDUCT WOULD INDICATE TO YOU THAT
21 SHE'S AWAKE, RIGHT?
22 A. YES, SIR.
23 Q. IS THERE NOT -- WAS THERE NOT CONSIDERATION GIVEN,
24 DOCTOR, TO THE ROUTE OF THE ADMINISTRATION OF THE MORPHINE
25 AS IT PERTAINED TO THIS PARTICULAR PATIENT?
3922
1 A. WAS THERE NOT CONSIDERATION GIVEN?
2 Q. UH-HUH.
3 A. THERE WAS CONSIDERATION GIVEN.
4 Q. AND YOU ELECTED TO USE AN INVASIVE PROCEDURE, IS THAT
5 RIGHT?
6 A. I USED I.M., YES, SIR, THAT'S INVASIVE.
7 Q. INSTEAD OF GIVING HER A PILL.
8 A. YES, SIR.
9 Q. I THINK YOU'VE PREVIOUSLY TESTIFIED ABOUT THAT GIVING
10 SOMEBODY A STICK WITH A NEEDLE IS INVASIVE --
11 A. YES, SIR.
12 Q. -- CORRECT? AND THAT'S WHY YOU DIDN'T TREAT PATIENTS
13 WITH I.V.'S AND CONNECTION -- CONNECTING TYPE OF TUBES, IS
14 THAT RIGHT?
15 A. NO, SIR.
16 Q. WAS IT YOUR PREFERENCE TO GIVE MORPHINE WITH -- IN AN
17 I.M. INJECTION FORM?
18 A. NOT NECESSARILY, BUT FOR THIS PATIENT, IT SEEMED
19 APPROPRIATE.
20 Q. IN FACT, WITH ALL FIVE PATIENTS, THAT WAS THE WAY IT WAS
21 ADMINISTERED, WASN'T IT?
22 A. ALL FIVE OF THESE PATIENTS, YES, SIR.
23 Q. AND ALL FIVE OF THESE PATIENTS, PARTICULARLY JUDITH
24 LARSEN -- WELL, LET ME STRIKE THAT. PARTICULARLY JUDITH
25 LARSEN RECEIVED MORPHINE INJECTIONS MULTIPLE TIMES, IS THAT
3923
1 CORRECT?
2 A. YES, JUDITH LARSEN DID.
3 Q. IS THAT -- WHEN YOU SAY AN INVASIVE PROCEDURE, DOESN'T
4 THAT HURT?
5 A. THE INJECTION?
6 Q. UH-HUH.
7 A. YES, SIR, IT CAN HURT A LITTLE BIT.
8 Q. IT CAN CAUSE PAIN, RIGHT?
9 A. YES, SIR.
10 THE COURT: MR. WILSON, ARE YOU AT A POINT THAT YOU
11 ARE MAY BE GOING TO ANOTHER AREA OR --
12 MR. WILSON: I THINK I'D LIKE TO, IF THE COURT
13 DESIRES TO A BREAK AT THIS TIME.
14 THE COURT: WELL, WE'VE BEEN GOING FOR ABOUT AN
15 HOUR SINCE THE JURY'S BEEN BACK, SO WHY DON'T WE TAKE A
16 BREAK.
17 (AFTER ADMONISHING THE JURY, THE COURT
18 TOOK A BRIEF RECESS.)
19 THE COURT: OKAY. PLEASE BE SEATED. OKAY. THE
20 RECORD WILL REFLECT THAT THE JURY HAS RETURNED. WOULD YOU
21 LIKE TO CONTINUE, MR. WILSON?
22 MR. WILSON: THANK YOU, YOUR HONOR.
23 Q. DOCTOR, WHAT RECORDS DID YOU REMEMBER REVIEWING PRIOR TO
24 MAKING THE ORDERS ON THAT PARTICULAR DATE ON ELLEN ANDERSON,
25 ON THE 29TH OF DECEMBER? THE INITIAL ORDERS?
3924
1 A. WHAT RECORDS DID I REVIEW?
2 Q. YES.
3 A. I DON'T RECALL ANY SPECIFICALLY.
4 Q. YOU DIDN'T REVIEW ANY INTAKE FORMS OR ADMISSION NOTES BY
5 THE NURSES?
6 A. YOU KNOW, I'M A LITTLE CONFUSED AS TO YOUR QUESTION.
7 COULD I GET THAT AGAIN?
8 Q. AS TO ELLEN ANDERSON, THE QUESTION IS, PRIOR OR PREVIOUS
9 TO MAKING THE TELEPHONE ORDER CONCERNING THE ADMINISTRATION
10 OF CERTAIN MEDICATIONS TO ELLEN ANDERSON, WHAT RECORDS IF
11 ANY DID YOU REVIEW?
12 A. ON THE 29TH, MY INITIAL TELEPHONE ORDERS?
13 Q. UH-HUH.
14 A. I CAN'T REMEMBER.
15 Q. YOU CAN'T REMEMBER.
16 A. NO, SIR.
17 Q. DO YOU RECALL REVIEWING ANYTHING ABOUT THIS PATIENT
18 HAVING PREVIOUSLY RECEIVED A PAINKILLER DESIGNATED AS
19 LORTAB?
20 A. WELL, I KNOW WE TALKED ABOUT THAT. I DON'T KNOW IF I
21 SAW THAT FROM THE RECORDS OR THE NURSE MENTIONED IT.
22 Q. WHEN YOU SAY WE TALKED ABOUT IT, WHO ARE WE REFERRING
23 TO?
24 A. THE NURSE.
25 Q. THE NURSE?
3925
1 A. YES, SIR. I CAN'T REMEMBER.
2 Q. I CALL YOUR ATTENTION TO MED-0167.
3 A. ON MISS ANDERSON?
4 Q. YES.
5 A. OKAY. GOT IT.
6 Q. THERE WAS A PRESCRIPTION THAT HAD BEEN ADMINISTERED OR
7 HAD BEEN PRESCRIBED PRIOR TO HER ADMISSION TO THE DAVIS
8 HOSPITAL, IS THAT CORRECT?
9 IS THAT CORRECT, DOCTOR, FROM YOUR REVIEW OF THE
10 RECORDS?
11 A. THERE WAS A PRESCRIPTION --
12 Q. YEAH.
13 A. -- PRESCRIBED?
14 Q. WASN'T SHE RECEIVING LORTAB P.R.N. PRIOR TO ADMISSION TO
15 THE DAVIS HOSPITAL?
16 A. YES, SIR, SHE WAS.
17 Q. AND YOU WERE MADE AWARE OF THAT AT THE TIME?
18 A. ON ADMISSION?
19 Q. UH-HUH.
20 A. YES.
21 Q. SO YOU WERE AWARE THAT IN THE PAST SHE HAD RECEIVED
22 LORTAB FOR PAIN.
23 A. YES, SIR.
24 Q. OKAY. BUT YET YOU CHOSE TO ADMINISTER MORPHINE TO HER
25 ON THIS PARTICULAR DATE, IS THAT CORRECT?
3926
1 A. THAT'S RIGHT.
2 Q. NOW, IN RESPECT TO THE FURTHER NURSES' NOTES, YOU
3 RECEIVED A PAGE AS IT -- IN RESPECT TO THIS PATIENT, DID YOU
4 NOT?
5 A. YES, SIR.
6 Q. AND THAT WAS FROM TRACY SCHOLL, IS THAT CORRECT?
7 A. YES, SIR.
8 Q. AND THAT TOOK PLACE, YOU CALLED BACK ABOUT 3:30 IN THE
9 MORNING, IS THAT CORRECT?
10 A. YES, SIR. DR. WEITZEL RETURNED PAGE AT 3:30.
11 Q. YOU WERE ADVISED AT THAT TIME, WERE YOU NOT, DOCTOR,
12 THAT TRACY SCHOLL HAD RECORDED THE RESPIRATIONS BETWEEN 8 TO
13 16 PER MINUTE ON THAT DATE?
14 A. I CAN'T --
15 Q. AT 1:00 O'CLOCK?
16 A. I CAN'T SAY IF I WAS OR WASN'T.
17 Q. OKAY. WOULD THAT HAVE ANY SIGNIFICANCE TO YOU AS TO
18 THOSE RESPIRATION RATES? IN TERMS OF ADMINISTERING
19 MORPHINE?
20 A. 8 TO 16, THAT'S GOT AN AVERAGE OF 12, SO PROBABLY NOT.
21 Q. IN TERMS OF THE -- HER BLOOD PRESSURE, WHERE IT'S 70
22 OVER 50, ISN'T THAT A RATHER LOW BLOOD PRESSURE RATE?
23 A. YES, SIR.
24 Q. IN FACT, THAT'S SIGNIFICANTLY LOW, ISN'T IT?
25 A. IT'S PRETTY LOW.
3927
1 Q. OKAY. IT'S TRUE, IS IT NOT, DOCTOR, THAT ON BLOOD
2 PRESSURE OF THAT LOW, THAT WOULD CONSTITUTE A RISK TO THIS
3 PATIENT IF YOU WERE TO GIVE HER ANY MORE MORPHINE, IS THAT
4 CORRECT?
5 A. IF I WERE TO GIVE IT AT 1:00 A.M., YES, SIR, COULD BE.
6 Q. DID YOU SEE ANY OTHER VITAL STATS AT THE TIME THAT YOU
7 TALKED WITH TRACY SCHOLL AT 3:30?
8 A. I WOULDN'T HAVE SEEN ANYTHING. I WOULD HAVE DEPENDED ON
9 WHAT SHE WAS TELLING ME OVER THE PHONE.
10 Q. BUT YOU DON'T HAVE ANY RECOLLECTION AS TO ANY -- ANY
11 INFORMATION AS IT PERTAINS TO BLOOD PRESSURE OR
12 RESPIRATIONS, IS THAT RIGHT?
13 A. NO, SIR.
14 Q. AS A PHYSICIAN, ISN'T IT TRUE THAT YOU OUGHT TO INQUIRE
15 AS TO THOSE PARTICULAR VITAL STATS PRIOR TO ADMINISTERING
16 MORPHINE?
17 A. OUGHT I TO INQUIRE? NOT NECESSARILY.
18 Q. IF THE NURSE FELT IT WAS IMPORTANT ENOUGH TO NOTE THOSE
19 IN THE NURSES' NOTES, SHE CALLS YOU ON THE PHONE, PRIOR TO
20 ADMINISTERING MORPHINE, SHOULDN'T YOU REVIEW WITH HER WHAT
21 THIS PATIENT'S CONDITION IS?
22 A. ACTUALLY, I THINK SHE SHOULD REVIEW WITH ME.
23 Q. I SEE. SO IT'S THE RESPONSIBILITY OF THE NURSE TO TELL
24 YOU, NOT FOR YOU TO MAKE ANY KIND OF INQUIRY OF HER. IS
25 THAT WHAT YOU'RE SAYING?
3928
1 A. IF SHE'S SEEING SOMETHING THAT SHE'S WORRIED ABOUT AT
2 THAT TIME, IT WOULD BE HER RESPONSIBILITY TO LET ME KNOW.
3 THIS IS THREE AND A HALF, TWO AND A HALF HOURS LATER.
4 Q. WELL, WE HAVE A PATIENT WHO ACCORDING TO THE INFORMATION
5 YOU HAVE RECEIVED, HAS ONLY RECEIVED LORTAB IN THE PAST, IS
6 THAT CORRECT?
7 A. I DON'T KNOW THAT SHE ONLY RECEIVED IT, BUT I KNOW SHE
8 HAD RECEIVED LORTAB.
9 Q. OKAY. YOU KNEW THAT THERE HAD BEEN A PRESCRIPTION FOR
10 IT IN THE PAST.
11 A. YES, SIR.
12 Q. YOU DID NOT KNOW WHEN SHE RECEIVED HER LAST DOSAGE OF
13 MORPHINE -- OR NOT MORPHINE, EXCUSE ME, OF LORTAB.
14 A. NO, SIR. I WOULDN'T HAVE KNOWN THAT.
15 Q. SO FOR ALL YOU KNOW, THAT COULD HAVE BEEN SOME TIME
16 BEFORE.
17 A. YES, SIR.
18 Q. AND YOU KNEW THAT THAT HAD BEEN PRESCRIBED FOR HER PAIN
19 IN THE PAST, DID YOU NOT?
20 A. YES, SIR.
21 Q. YOU ALSO KNOW THAT FROM THE RECORD THAT SHE HAD
22 SUSTAINED A HIP FRACTURE IN THE PAST, DO YOU NOT?
23 A. I KNOW THAT NOW, YES, SIR.
24 Q. AND I ASSUME YOU WOULD KNOW FROM THE STANDPOINT OF THE
25 PRESCRIPTION OF LORTAB THAT THAT HAD BEEN PRESCRIBED FOR ANY
3929
1 PAIN ASSOCIATED WITH THAT, IS THAT CORRECT?
2 A. I CAN'T TELL YOU AT THIS TIME WHETHER I KNEW AT THAT
3 TIME EXACTLY WHETHER THE LORTAB WAS FOR THE HIP FRACTURE OR
4 GENERALIZED OSTEOPOROSIS, WRIST FRACTURE, ANKLE FRACTURE, OR
5 WHAT. I'M SORRY.
6 Q. THE FACT OF THE MATTER IS, DOCTOR, YOU WENT AHEAD AND
7 ADMINISTERED MORPHINE WITHOUT SOME CRITICAL INFORMATION,
8 DIDN'T YOU?
9 A. I ADMINISTERED MORPHINE WITHOUT ALL THE INFORMATION. I
10 WOULDN'T CALL IT CRITICAL.
11 Q. YOU DON'T THINK BLOOD PRESSURE OF 70 OVER 50 IS NOT
12 CRITICAL?
13 A. THAT WAS TWO AND A HALF HOURS EARLIER.
14 Q. I SEE. BUT YOU DIDN'T KNOW WHAT HER BLOOD PRESSURE
15 WOULD BE AT THIS TIME.
16 A. NO, SIR.
17 Q. AND YOU'RE SAYING TO US THAT YOU DON'T KNOW WHETHER
18 TRACY SCHOLL TOLD YOU ABOUT THE BLOOD PRESSURE ANYWAY.
19 A. THAT'S TRUE.
20 Q. SHE COULD HAVE VERY WELL TOLD YOU ABOUT THE BLOOD
21 PRESSURE, ISN'T THAT TRUE?
22 A. YES, SHE COULD HAVE.
23 Q. AND YOU WENT AHEAD AND ADMINISTERED THE MORPHINE IN THAT
24 PARTICULAR CONTEXT.
25 A. WELL, I DON'T KNOW IF SHE DID OR NOT, SO --
3930
1 Q. YOU ORDERED THE ADMINISTRATION OF THE MORPHINE.
2 A. I DID ORDER THE MORPHINE AT 3:30, YES, SIR.
3 Q. AND PATIENT DIES APPROXIMATELY FIVE HOURS LATER, IS THAT
4 RIGHT?
5 A. YES, SIR.
6 Q. DURING THAT TIME PERIOD, THERE'S A CHEST X-RAY AND
7 THERE'S ALSO A SINUS OR A -- GUESS IT'S A HEART MONITORING
8 THAT'S --
9 A. E.K.G.?
10 Q. E.K.G. THAT'S TAKEN PLACE.
11 A. YES, SIR.
12 Q. AND AS YOU'VE NOTED IN YOUR EARLIER TESTIMONY, YOUR
13 STATEMENT IN THE DISCHARGE SUMMARY IS THAT IS AN OVERSIGHT
14 ON YOUR PART, IT WAS NOT TAKEN ON ADMINISTRATION, IS THAT
15 CORRECT?
16 A. I DON'T BELIEVE SO.
17 Q. DOES THE SINUS TACHYCARDIA, IS THAT FURTHER EVIDENCE OF
18 TOXICITY OF MORPHINE IN THIS PATIENT?
19 A. NOT NECESSARILY.
20 Q. WHEN WAS IT YOU DISCOVERED THE ERROR IN YOUR THINKING IN
21 TERMS OF WHEN THAT E.K.G. WAS ADMINISTERED?
22 A. I DON'T KNOW THAT THERE IS ANY ERROR. I'M NOT SURE WHAT
23 YOU'RE TALKING ABOUT.
24 Q. WELL, DIDN'T YOU -- DIDN'T YOU ADMIT THAT YOUR DISCHARGE
25 SUMMARY WAS WRONG?
3931
1 A. WITH RESPECT TO WHAT?
2 Q. IN RESPECT TO ON ADMISSION HER E.K.G. REVEALED SINUS
3 TACHYCARDIA.
4 A. THAT'S NOT WRONG AT ALL. THAT'S WHAT IT SHOWED.
5 Q. SHE WAS ADMITTED AT 4:00 O'CLOCK ON SUNDAY, WAS SHE NOT?
6 A. SHE WAS ADMITTED A LITTLE AFTER 4:00 ON THE 29TH.
7 Q. ON THE -- EXCUSE ME, 29TH.
8 A. I DON'T KNOW IT WAS SUNDAY OR WHAT, BUT THE 29TH.
9 Q. SHE WAS ADMITTED AT A LITTLE AFTER 4:00 O'CLOCK ON THE
10 29TH.
11 A. I THINK I SEE THE CONFUSION. THIS IS THE ADMISSION
12 E.K.G. IT WAS ORDERED AND IT WAS DONE ON ADMISSION.
13 Q. SO THE E.K.G. ON ADMISSION TAKES PLACE AT 5:00 O'CLOCK
14 THE FOLLOWING MORNING.
15 A. YES, SIR.
16 Q. SO IN REFERENCE TO YOUR REPORT, ARE YOU TELLING US THAT
17 SHE WAS SUFFERING FROM SINUS TACHYCARDIA AND EARLIER ON
18 SUNDAY WHEN SHE WAS ADMITTED TO THE UNIT OR ARE YOU TELLING
19 US IT WAS AT 5:30 IN THE MORNING ON THE 30TH?
20 A. I CAN'T BE SURE ABOUT WHAT HER HEART ARRHYTHMIA MAY HAVE
21 BEEN ON ADMISSION, BUT IT -- CLEARLY AT 5:30 0R 5:40 WHEN IT
22 WAS DONE --
23 Q. THAT'S WHEN IT WAS DONE.
24 A. -- SHE HAD THE SINUS ARRHYTHMIA.
25 Q. OKAY. AND AT THAT TIME, THE SINUS TACHYCARDIA, WHATEVER
3932
1 IT'S CALLED --
2 A. ARRHYTHMIA.
3 Q. -- ISN'T THAT EVIDENCE THAT THIS INDIVIDUAL WAS
4 SUFFERING FROM THE TOXIC EFFECTS OF MORPHINE?
5 A. NO, SIR.
6 Q. YOU DON'T THINK SO.
7 A. NO, SIR.
8 Q. DO YOU THINK THAT HER BLOOD PRESSURE AT 1:00 O'CLOCK AT
9 70 OVER 50 IS EVIDENCE THAT SHE'S SUFFERING FROM THE TOXIC
10 EFFECTS OF MORPHINE?
11 A. NO, SIR. IT WOULD BE FIVE AND A HALF HOURS AFTER SHE
12 DIED, NO.
13 Q. AT 8:55, SHE DIES. YOU COME IN LATER THAT DAY, IS THAT
14 RIGHT?
15 A. YES, SIR. ON THE 30TH.
16 Q. YOU WERE CALLED BY THE NURSE I ASSUME JUST AFTER SHE
17 DIED, IS THAT CORRECT?
18 A. PROBABLY, BUT I'D LIKE TO CHECK THE NURSING NOTE BEFORE
19 I SAY FOR SURE. I THINK I REMEMBER IT SAID THAT DR. WEITZEL
20 PAGED. DR. WEITZEL NOTIFIED 8:55 ON THE 30TH.
21 Q. IS IT OF CONCERN TO YOU, DOCTOR, THAT YOU HAVE A PATIENT
22 WHO IS ADMITTED, IS APPROPRIATE UNDER THE CRITERIA OF THE
23 GEROPSYCH UNIT, WHO IS ADMITTED AT 4:00 O'CLOCK, AND DIES
24 APPROXIMATELY 17 HOURS LATER; IS IT OF CONCERN TO YOU THAT
25 SHE DIED IN SUCH A SHORT PERIOD OF TIME?
3933
1 A. YES, SIR.
2 Q. IN FACT, IT WAS OF CONCERN THAT YOU RECOMMENDED AN
3 AUTOPSY, IS THAT RIGHT?
4 A. WELL, IN MY NOTE, I WROTE RECOMMEND AUTOPSY, YES, SIR.
5 I REALLY WAS CURIOUS AS TO WHAT CAUSED THIS.
6 Q. AND IT'S A FACT, ISN'T IT, DOCTOR, THAT THE ONLY -- THE
7 ONLY DIFFERENCE IN HER MEDICATIONS THAT SHE WAS RECEIVING
8 BEFORE SHE CAME TO THE UNIT AND THE TIME OF HER DEATH WAS
9 THE ADMINISTRATION OF MORPHINE SULFATE, ISN'T IT?
10 A. NO, SIR, THAT'S NOT TRUE.
11 Q. WHAT OTHER -- WHAT OTHER DRUGS DID SHE RECEIVE BESIDES
12 MORPHINE SULFATE THAT HADN'T BEEN PRESCRIBED BEFORE?
13 A. THE DIFFERENCE IS, IS THAT SHE HAD BEEN RECEIVING
14 MEDICATIONS UNTIL SHE GOT THERE. SHE WOULDN'T TAKE ANYTHING
15 THAT EVENING, SO SHE STOPPED GETTING PSYCHOTROPICS, ET
16 CETERA, SO --
17 Q. SO YOU -- YOU ADMINISTERED --
18 A. -- THAT'S THE DIFFERENCE.
19 Q. THE DIFFERENCE IS SHE DIDN'T HAVE SOME OF THOSE
20 MEDICATIONS THEN, IS THAT RIGHT?
21 A. THAT'S ONE DIFFERENCE. ANOTHER DIFFERENCE IS SHE DID
22 GET MORPHINE.
23 Q. THE OTHER DIFFERENCE IS THAT SHE DID GET MORPHINE.
24 A. THAT IS --
25 Q. AND SHE GOT SHOTS THAT HAVE BEEN TESTIFIED TO BY EXPERTS
3934
1 THAT ARE SOME FOUR TIMES THE DOSAGE THAT SHOULD HAVE BEEN
2 ADMINISTERED TO HER, IS THAT CORRECT?
3 MR. STIRBA: I'M GONNA OBJECT. HE DOESN'T HAVE TO
4 REPEAT TESTIMONY OF THE TRIAL.
5 THE COURT: SUSTAINED.
6 MR. STIRBA: OBJECT TO THE FORM OF THE QUESTION.
7 THE COURT: COMMENT ON OTHER WITNESS' TESTIMONY,
8 THAT'S SUSTAINED.
9 Q. (BY MR. WILSON) BUT YOU DIDN'T HAVE ANY PROBLEM WITH
10 THE 10 MILLIGRAMS, DID YOU?
11 A. NO, SIR. I THOUGHT IT WAS APPROPRIATE.
12 Q. AND YOU THOUGHT IT WAS APPROPRIATE AGAIN AT 3:30, IS
13 THAT CORRECT?
14 A. YES, SIR. ESPECIALLY SO WITH REGARD --
15 Q. YOU RECOMMENDED AN AUTOPSY. WHAT DOES THAT MEAN,
16 DOCTOR? DOES IT MEAN THAT THERE WOULD BE AN AUTOPSY
17 ORDERED?
18 A. WELL, I'M A PSYCHIATRIST. AND I DON'T ORDER A LOT OF
19 AUTOPSIES. BUT I GOT THERE THAT MORNING AND WROTE
20 ASSESSMENT, PROBABLE M.I. RECOMMEND AUTOPSY. MY PLAN WAS,
21 WILL RELEASE TO FAMILY.
22 Q. BUT YOU DIDN'T REACH THE FAMILY?
23 A. NO, SIR. MY PLAN WAS WILL RELEASE TO FAMILY, RELEASE
24 HER BODY TO THE FAMILY.
25 Q. OH, YOU WERE GONNA RELEASE HER TO THE FAMILY.
3935
1 A. YES, SIR. I HAVE TO WRITE AN ORDER OF RELEASING THE
2 BODY.
3 Q. SO IN ORDER TO HAVE AN AUTOPSY, I ASSUME YOU WOULD HAVE
4 TO HAVE SOMEBODY FROM THE MEDICAL EXAMINER'S COME OUT TO
5 CONDUCT THAT AUTOPSY OR THE HOSPITAL WOULD HAVE TO CONDUCT
6 IT?
7 A. SOMEONE WOULD HAVE TO.
8 Q. OKAY. WERE YOU FAMILIAR WITH THE HOSPITAL POLICIES ON
9 AUTOPSIES?
10 A. NO, SIR.
11 Q. SO YOU DIDN'T READ THOSE POLICIES.
12 A. NO, SIR.
13 Q. SO YOU NEVER ACTUALLY ATTEMPTED TO GET AN AUTOPSY DONE,
14 DID YOU?
15 A. I CAN'T REMEMBER SPECIFICALLY. I THINK I MAY HAVE SAID
16 TO THE FAMILY IT MIGHT MAKE SENSE TO GET AN AUTOPSY, BUT
17 THERE WAS NONE DONE UNTIL YOUR EXHUMATIONS.
18 Q. ARE YOU FAMILIAR IN THE HOSPITAL POLICIES THAT DEATHS
19 WITH PRIMARILY A PSYCHIATRIC DIAGNOSE -- DIAGNOSIS ARE
20 REQUIRED TO HAVE AUTOPSIES?
21 A. NO, SIR, I WAS NOT FAMILIAR WITH THAT.
22 Q. YOU WEREN'T CONCERNED ENOUGH TO PURSUE IT YOURSELF, WERE
23 YOU?
24 A. I BELIEVE I MAY HAVE SPOKEN WITH THE FAMILY ABOUT IT AND
25 RECOMMENDED IT, BUT THAT'S AS FAR AS IT WOULD HAVE GONE WITH
3936
1 ME.
2 Q. YOU DIDN'T CALL THE MEDICAL EXAMINER, DID YOU?
3 A. NO, SIR.
4 Q. WOULD YOU PULL THE FILE OUT ON JUDITH LARSEN?
5 A. DO YOU HAVE A PAGE?
6 Q. PARDON?
7 A. DO YOU HAVE A PAGE NUMBER?
8 Q. NO, I JUST WANT YOU TO PULL THE FILE OUT RIGHT NOW.
9 A. OKAY.
10 Q. CAN YOU TELL US, DOCTOR, WHAT YOUR IMPRESSIONS -- EXCUSE
11 ME, UPON ADMISSION, JUDITH LARSEN ALSO FIT THE CRITERIA OF
12 THE GERIATRIC PSYCH UNIT, DID SHE NOT?
13 A. YES, SIR.
14 Q. AND AS I UNDERSTAND YOUR TESTIMONY, SHE WENT UP AND DOWN
15 IN HER PROGRESS, IS THAT CORRECT?
16 A. RIGHT.
17 Q. AND ON THE 13TH OF DECEMBER, YOU ORDERED THE
18 ADMINISTRATION OF 15 MILLIGRAMS OF MORPHINE P.R.N., DID YOU
19 NOT?
20 A. NO, SIR. I PUT AN ORDER THAT 15 MILLIGRAMS COULD BE
21 GIVEN, BUT I DID NOT ORDER THE ADMINISTRATION. THAT'S WHAT
22 A P.R.N. IS.
23 Q. SO P.R.N. MEANS THAT IT'S ORDERED IF -- IF THE NURSE
24 DEEMS IT NECESSARY.
25 A. YES, SIR.
3937
1 Q. SUBSEQUENTLY, ON DECEMBER THE 25TH, JUDITH LARSEN IS
2 ADMINISTERED HER FIRST SHOT OF MORPHINE, IS SHE NOT?
3 A. YES, THAT'S RIGHT.
4 Q. SHE'S ADMINISTERED IN FACT THREE 2-MILLIGRAM SHOTS ON
5 THAT PARTICULAR DATE, IS THAT CORRECT?
6 A. YES, SIR.
7 Q. NOW, I UNDERSTAND THESE SHOT VIALS COME IN 10-MILLIGRAM
8 UNITS, IS THAT CORRECT?
9 A. THEY COME A LOT OF DIFFERENT WAYS. I DON'T KNOW WHAT
10 THEY HAVE THERE.
11 Q. THERE WOULDA HAD TO BEEN MORPHINE WASTED ON THAT
12 PARTICULAR OCCASION, IS THAT CORRECT?
13 A. LIKE I SAID, I DON'T KNOW.
14 Q. NOW, YOU'VE PREVIOUSLY TESTIFIED THAT YOU FELT THAT A
15 10-MILLIGRAM SHOT FOR ELLEN ANDERSON WAS APPROPRIATE UNDER
16 THE CIRCUMSTANCES. I'M CURIOUS TO KNOW WHY, DOCTOR -- WELL,
17 LET ME PUT IT THIS WAY: ON THIS PARTICULAR OCCASION, YOU
18 ORDER 2-MILLIGRAM SHOTS IN TWO-HOUR INTERVALS, THREE SHOTS,
19 IS THAT RIGHT?
20 A. BELIEVE SO. LET ME JUST CHECK THE ORDERS. EXACTLY.
21 Q. PREVIOUSLY, YOU'D ORDERED P.R.N. 15-MILLIGRAM SHOT, IS
22 THAT CORRECT?
23 A. YES, SIR.
24 Q. AND THEN AS I UNDERSTAND IT, ON THE 26TH, THAT'S THE
25 DATE SHE HAS THE SEIZURE, IS THAT RIGHT?
3938
1 A. RIGHT.
2 Q. AND SHE'S ADMINISTERED A MORPHINE SHOT ON THAT
3 PARTICULAR DATE OF 2 MILLIGRAMS, IS THAT CORRECT?
4 A. YES, SIR. BEST I CAN TELL, IT WAS AROUND 1:30 -- OH,
5 WAIT, NO, THAT'S INCORRECT. IT WOULD HAVE BEEN IN THE
6 MORNING.
7 Q. I NEGLECTED TO ASK YOU, GOING BACK TO THE 13TH OR THE
8 14TH, YOU NOTE ON THAT PARTICULAR DATE ON PAGE 470 IN YOUR
9 PROGRESS NOTES, I THINK IT IS, THAT SHE HAD A MIRACULOUS
10 RECOVERY.
11 A. RIGHT.
12 Q. IT'S TRUE, IS IT NOT, THAT ON THE 12TH AND THE 11TH, THE
13 NURSES WITHHELD CERTAIN MEDICATIONS FROM JUDITH LARSEN?
14 A. SPECIFICALLY?
15 Q. WELL, THEY WITHHELD SERZONE AND RISPERDAL AND TRAZODONE.
16 DO YOU WANNA TURN TO PAGES 502 AND 503?
17 A. YES, SIR, I'VE GOT 502 HERE. AND LOOKS LIKE RISPERDAL
18 WAS HELD AT BEDTIME ON THE 11TH -- LET'S SEE, MAKE SURE
19 THAT -- ON THE 11TH AND 12TH BECAUSE SHE WAS ASLEEP. AND ON
20 503, THERE ARE ALSO SOME WITHHOLDS. LOOKS LIKE THEY'RE ALL
21 BECAUSE THE PATIENT WAS ASLEEP.
22 Q. SO WAS THIS A DRUG THAT WAS ORDERED ON A ROUTINE BASIS?
23 A. YES, SIR. I BELIEVE ALL OF THESE WERE ORDERED ROUTINE,
24 SURFAK. YEAH, THESE WERE LIKE BOTH HER PSYCHOTROPIC
25 MEDICATIONS AND HER OTHER MEDICATIONS.
3939
1 Q. ISN'T IT TRUE, DOCTOR, THAT THE WITHHOLDING OF THOSE
2 DRUGS HAD A POSITIVE EFFECT ON THIS LADY'S RECOVERY AT THAT
3 TIME? HER MIRACULOUS RECOVERY, AS YOU CHARACTERIZED IT?
4 A. NO, SIR, I DON'T THINK SO. THEY WERE -- THEY WERE NOT
5 HELD ALL THE TIME, JUST AT BEDTIME A COUPLE OF NIGHTS.
6 Q. YOU DON'T THINK THAT HAD ANY IMPACT ON IT AT ALL.
7 A. WELL, I GAVE ALL THOSE MEDICATIONS TO HELP AID IN HER
8 RECOVERY, AND SO HOLDING THEM, I DON'T THINK IS WHAT CAUSED
9 THE RECOVERY.
10 Q. SHE HAS THE SEIZURE ON THE 26TH. DR. DIENHART ORDERS
11 ADMINISTRATION OF THE DILANTIN, IS THAT CORRECT?
12 A. YES, SIR.
13 Q. AND YOU AT THAT TIME ENTER AN ORDER DISCONTINUING THE
14 I.V. OF DILANTIN AND ATIVAN, IS THAT CORRECT?
15 A. A COUPLE OF HOURS LATER I D.C. THOSE IN ONE OF HER
16 MEDICAL TREATMENT PLAN --
17 Q. OKAY.
18 A. -- AND SAID NO I.V.'S.
19 Q. PARDON?
20 A. MEDICAL TREATMENT PLAN SAID NO I.V.'S.
21 Q. NO I.V.'S.
22 A. YES, SIR.
23 Q. THIS WAS ON THE 26TH?
24 A. YES, SIR.
25 Q. YOU REFERENCE IN A NOTE, THINK IT'S ON THE 29TH, IF I
3940
1 CAN FIND THAT PARTICULAR PROGRESS NOTE. CAN YOU TURN TO
2 PAGE 475?
3 A. I'M THERE.
4 Q. WHAT DOES -- CAN YOU READ THAT NOTE TO US, DOCTOR?
5 A. AT THE BOTTOM OF THE PAGE, MY NOTE?
6 Q. YEP, 12/29.
7 A. OKAY. HAS QUIT FEEDING SELF, DASH, STARES OFF INTO
8 SPACE. NO FURTHER SEIZURE ACTIVITY. I WISH TO KEEP HER
9 MEDS TO -- MEDICATIONS TO A MINIMUM. VITAL SIGNS STABLE.
10 AFEBRILE. ASSESSMENT, MAJOR DEPRESSION WITH PSYCHOTIC
11 FEATURES. STATUS, SUPPOSED STROKE, DEMENTIA. PLAN,
12 DISCONTINUE DILANTIN. WILL SEE IF WE CAN GET HER TO BE
13 RESPONSIVE AGAIN. IF SHE SEIZES, WE'LL USE INTRAMUSCULAR
14 ATIVAN. SIGNED ROBERT WEITZEL.
15 Q. THE ATIVAN HAD BEEN DISCONTINUED BACK ON THE 26TH, HAD
16 IT NOT?
17 A. NO, SIR.
18 Q. YOU DISCONTINUED THE -- EXCUSE ME, NOT THE ATIVAN, THE
19 DILANTIN.
20 A. NO, SIR. ACTUALLY, WHAT I WROTE WAS DISCONTINUE I.V.
21 LOOKING AT THIS NOW, I MUST HAVE BEEN UNDER THE IMPRESSION
22 FROM THE 26TH THROUGH THE 29TH, THAT SHE'S STAYING ON
23 DILANTIN BY MOUTH. KIND OF A MIXUP.
24 Q. IN FACT, YOU THOUGHT SHE APPEARED QUITE LETHARGIC,
25 DIDN'T YOU?
3941
1 A. WHEN IS THAT?
2 Q. AS TO THE ATIVAN.
3 A. NO. ARE YOU TALKING ABOUT ON THE 29TH?
4 Q. I'M TALKING ABOUT AFTER THE -- AFTER THE I.V. HAD BEEN
5 DISCONTINUED. DIDN'T YOU MAKE A REFERENCE IN YOUR NOTE AS
6 TO QUITE LETHARGIC AND YOU REFERENCED THAT IT APPEARS TO BE
7 A REACTION TO THE ATIVAN?
8 A. NO, SIR.
9 MR. WILSON: MAY I HAVE JUST A MINUTE, YOUR HONOR?
10 THE COURT: YES.
11 Q. (BY MR. WILSON) EXCUSE ME. I KEEP CONFUSING DILANTIN
12 AND ATIVAN. MAYBE WE CAN RETURN TO THE NOTE ON PAGE 475.
13 A. OKAY.
14 Q. LET'S SEE -- OKAY. THE NOTE YOU READ WAS ON 12/29. THE
15 NOTE JUST ABOVE THAT, WOULD YOU PLEASE READ THAT NOTE FOR
16 US?
17 A. OKAY, SURE. THIS IS THE 28TH, MY NOTE. I MET WITH HER
18 SON AND DAUGHTER-IN-LAW. SHE APPEARS MEDICALLY STABLE AT
19 THIS POINT. THE DILANTIN APPEARS TO BE CAUSING SOME
20 SEDATION. LETHARGY CONTINUES. VITAL SIGNS STABLE.
21 AFEBRILE. ASSESSMENT, STABLE. PLAN, CONTINUE CURRENT CARE.
22 Q. OKAY. NOW, WAS SHE OR WAS SHE NOT, DOCTOR, RECEIVING
23 ANY DILANTIN AFTER THE 26TH?
24 A. FROM EVERYTHING I CAN TELL FROM THE MEDICATION
25 ADMINISTRATION RECORDS, SHE WAS NOT.
3942
1 Q. OKAY.
2 A. THE NURSES INTERPRETED STOP BY I.V. THERAPY AS STOP
3 DILANTIN.
4 Q. BUT YOU DIDN'T INTEND TO STOP THAT.
5 A. NOT NECESSARILY. AS A MATTER OF FACT, I WAS UNDER THE
6 IMPRESSION SHE WAS STILL GETTING IT. I HADN'T WRITTEN STOP
7 DILANTIN.
8 Q. BUT YOU HAD WRITTEN TO STOP THE I.V.
9 A. YES, SIR.
10 Q. SO THE LETHARGY WAS NOT BEING CAUSED BY THE DILANTIN,
11 WAS IT?
12 A. THAT'S RIGHT. IT HAD BEEN STOPPED SOMETIME BEFORE.
13 Q. NOW, THE UPPER G.I. BLEED THAT YOU REFERENCE THAT
14 OCCURRED AFTER THE VOMITING EPISODE ON 29TH AND 30TH, DO YOU
15 RECALL THAT?
16 A. YES, SIR.
17 Q. DID YOU DO ANY FURTHER TESTING TO DETERMINE IF THAT WAS
18 IN FACT AN UPPER G.I. BLEED?
19 MR. STIRBA: I'M GONNA OBJECT, RELEVANCY, YOUR
20 HONOR. BEYOND THE SCOPE.
21 MR. WILSON: STRIKE IT.
22 Q. DID YOU REQUEST ANY CONSULT AS A RESULT OF THE UPPER
23 G.I. BLEED?
24 A. NO, SIR.
25 Q. IT'S TRUE, IS IT NOT, DOCTOR, THAT ONE OF THE NICE
3943
1 THINGS THAT -- ABOUT THE GEROPSYCH UNIT WAS LOCATED IN THE
2 HOSPITAL, IS THAT RIGHT?
3 A. THAT'S RIGHT.
4 Q. SO YOU HAVE AVAILABILITY OF INTERNISTS AND OTHER
5 PHYSICIANS TO ASSIST YOU IN DIAGNOSING MATTERS OF AN
6 INTERNAL NATURE.
7 A. THAT'S TRUE.
8 Q. AND IN RESPECT TO THIS PARTICULAR EVENT, YOU CHOSE NOT
9 TO HAVE ANYBODY COME IN TO ADMINISTER ANY TESTS TO DETERMINE
10 IN FACT IF THE PATIENT WAS SUFFERING FROM AN UPPER G.I.
11 BLEED, IS THAT CORRECT?
12 MR. STIRBA: I'M GONNA OBJECT AS TO RELEVANCE. I
13 BELIEVE THIS WAS THE SUBJECT OF A PREVIOUS RULING, TOO.
14 THE COURT: OVERRULED.
15 Q. (BY MR. WILSON) YOU DID NOT REQUEST ANY PHYSICIANS TO
16 COME IN AND ASSIST YOU IN TERMS OF CONSULTING TO DETERMINE
17 IF THAT IN FACT WAS AN UPPER G.I. BLEED, IS THAT CORRECT?
18 A. SIR, COFFEE GROUNDS VOMITUS, I KNEW IT WAS A G.I. BLEED.
19 THEN THE NEXT DAY MELENA, THAT'S A G.I. BLEED.
20 Q. I SEE.
21 A. SO NO, SIR, I DID NOT.
22 Q. IF YOU SPECIALIZE IN INTERNAL MEDICINE --
23 A. PSYCHIATRY IS A BRANCH --
24 MR. STIRBA: OBJECTION. ARGUMENTATIVE, YOUR HONOR.
25 MR. WILSON: WELL, LET ME ASK --
3944
1 THE COURT: JUST ASK THE NEXT QUESTION.
2 MR. WILSON: OKAY.
3 Q. IN FACT, YOU DIDN'T REQUEST ANY CONSULT IN RESPECT TO
4 JUDITH LARSEN AFTER THE LAST ONE WITH DR. DIENHART WHEN HE
5 OBSERVES THE COFFEE GROUND EMESIS, ISN'T THAT CORRECT?
6 A. I DID NOT.
7 Q. YOU BEGIN A REGIMEN OF THE ADMINISTRATION OF MORPHINE AT
8 THAT TIME ON THE -- I THINK EXTENDING FROM THE 29TH THROUGH
9 THE 30TH, IS THAT RIGHT?
10 A. NO, SIR, I DON'T THINK IT IS. LOOKS LIKE THE 30TH.
11 NIGHT OF THE 30TH, I BELIEVE.
12 Q. SO THAT'S WHEN YOU ENTER THE FIRST ORDERS TO ADMINISTER
13 MORPHINE ON A REGULAR BASIS, IS THAT RIGHT?
14 A. YES, SIR.
15 Q. THAT'S ALSO THE TIME PERIOD I THINK YOU'VE TESTIFIED TO
16 THAT YOU HAD A MEETING OR DISCUSSION WITH MERLIN LARSEN
17 ABOUT HIS MOTHER AND HER SUBSEQUENT CARE, IS THAT RIGHT?
18 A. CORRECT.
19 Q. AND IT WAS AT THAT MEETING THAT YOU MADE THE DECISION,
20 DOCTOR, TO GO FORWARD WITH A COMFORT CARE ROUTINE, IS THAT
21 CORRECT?
22 A. YES, SIR.
23 Q. NOW, WOULD YOU AGREE WITH THE PROPOSITION THAT MORPHINE
24 FOR MEDICAL PURPOSES IS USED FOR THE TREATMENT OF MODERATE
25 TO SEVERE PAIN?
3945
1 A. THAT'S ONE OF THE PURPOSES, YES, SIR.
2 Q. ONE OF THE PURPOSES. IS THAT THE PRIMARY PURPOSE OF
3 MORPHINE? FOR MEDICAL REASONS?
4 A. IT'S THE PURPOSE FOR WHICH IT'S USED MOST PROBABLY.
5 Q. SO ARE WE TO BELIEVE THAT IN THIS CONTEXT, THE MORPHINE
6 WAS USED FOR ANOTHER PURPOSE OTHER THAN THE PAIN CONTROL?
7 A. NO, SIR.
8 Q. YOU WERE USING IT FOR -- TO CONTROL PAIN IN THIS
9 PARTICULAR PATIENT?
10 A. PAIN AND SUFFERING.
11 Q. PAIN AND SUFFERING. NOW, THAT'S A RATHER VAGUE TERM, IS
12 IT NOT, AS TO SUFFERING?
13 A. YES, SIR. SUFFERING COMES IN MANY FORMS.
14 Q. OKAY. SO AS A PHYSICIAN, YOU DETERMINED THAT IT WAS
15 APPROPRIATE TO USE MORPHINE IN THIS PARTICULAR CONTEXT
16 BECAUSE YOU BELIEVED JUDITH LARSEN TO BE IN PAIN AND
17 SUFFERING.
18 A. THAT'S RIGHT.
19 Q. IS THAT CORRECT?
20 A. YES, SIR.
21 Q. AND AS A PHYSICIAN, YOU HAD DETERMINED IN YOUR OWN MIND
22 THAT JUDITH LARSEN WAS DYING, IS THAT CORRECT?
23 A. YES, SIR.
24 Q. DID YOU SEEK ANY CONSULT AS TO WHETHER OR NOT SHE WAS
25 DYING?
3946
1 A. NO, SIR.
2 Q. YOU WENT TO HER FAMILY AND TOLD THEM SHE WAS DYING, IS
3 THAT CORRECT?
4 A. I THINK YOU COULD SAY IT THAT WAY, YES, SIR.
5 Q. DID YOU TELL MERLIN LARSEN WHAT SHE WAS DYING FROM?
6 A. I'M SURE I WOULD HAVE TOLD HIM ABOUT THE G.I. BLEED.
7 AND THEY WERE AWARE OF THE OTHER MEDICAL PROBLEMS SHE HAD.
8 Q. WAS THERE ANY INDICATION IN HER MEDICAL RECORD AFTER THE
9 DATE OF THE 29TH THAT SHE WAS VOMITING UP ANY COFFEE GROUND
10 EMESIS?
11 A. I'D HAVE TO GO THROUGH THEM PRETTY CLEARLY TO MAKE SURE
12 OF THAT. AFTER THE 29TH?
13 Q. UH-HUH.
14 A. YES, SIR.
15 Q. WHAT EVIDENCE WAS THAT?
16 A. WELL, THERE'S JUST ALL OVER THE PLACE, ON THE 30TH
17 SHE -- MY NOTE WILL TELL YOU SHE HAD COFFEE GROUNDS VOMITUS
18 OF GREATER THAN 200 C.C.'S THIS MORNING, ET CETERA.
19 Q. OKAY. SO WE HAVE THE COUGHING SPELL THAT GOES FROM THE
20 29TH INTO THE 30TH. LET ME ASK YOU THIS THEN: WAS THERE
21 ANY FURTHER EPISODES WHERE SHE VOMITED UP COFFEE GROUNDS
22 EMESIS IN THE MEDICAL RECORDS AFTER THAT DATE?
23 A. NO. THE EVIDENCE CHANGED TO MELENA.
24 Q. PARDON?
25 A. MELENA, M-E-L-E-N-A. MELENA.
3947
1 Q. SO THERE WAS -- THERE WAS NOTHING AS TO COFFEE GROUNDS
2 EMESIS. YOU'RE SAYING THAT THE EVIDENCE CHANGED TO SOME
3 FORM, IS THAT RIGHT?
4 A. YES, SIR, BELIEVE SO.
5 Q. WHAT IS THE NATURE OF THAT FORM, SIR?
6 A. MELENA IS A BLACK TARRY STOOL THAT YOU SEE WITH A G.I.
7 BLEED.
8 Q. SUBSEQUENT TO THE 30TH, DID YOU SEE ANY FURTHER EVIDENCE
9 OF EITHER COFFEE GROUND EMESIS OR A MELANOMA -- OR MELA --
10 MELENA?
11 A. MELENA? I'M GONNA LOOK QUICKLY THROUGH THE NURSES'
12 NOTES AND I DON'T WANNA ANSWER BEFORE I MAKE REAL SURE.
13 READING THROUGH THE -- EACH TO THE END OF 31ST, I
14 DON'T SEE ANYTHING THAT FAR, SO I DOUBT IT.
15 Q. SO THERE'S NOTHING UP UNTIL THE TIME OF HER DEATH THAT
16 EVIDENCE -- WOULD BE EVIDENCE OF ANY UPPER G.I. BLEED, IS
17 THAT CORRECT?
18 A. ANY FURTHER G.I. BLEEDING, NO, SIR.
19 Q. BASED ON THAT, YOU MADE THE DECISION THAT SHE WAS DYING.
20 A. FROM THE G.I. BLEED?
21 Q. UH-HUH.
22 A. ON THAT AND HER GENERAL DEBILITATED CONDITION AND THE
23 FACT THAT I WASN'T ABLE TO GIVE HER BLOOD PRODUCTS OR I.V.'S
24 AND THE FACT THAT SHE WASN'T TAKING P.O. ORAL FLUIDS OR
25 NOURISHMENT.
3948
1 Q. DID YOU EVALUATE AND MONITOR THE EFFECTS OF THE MORPHINE
2 ON HER ON A REGULAR BASIS DURING THIS TIME PERIOD?
3 A. YES, SIR.
4 Q. AND HOW DID YOU DO THAT, SIR?
5 A. WELL, NURSES, EVERY TIME I GIVE MORPHINE, WERE LOOKING
6 AT THE PATIENT. I WAS COMING IN EVERY DAY AND TALKING --
7 Q. IT'S TRUE, IT IS NOT, THAT -- EXCUSE ME. I'M SORRY. I
8 DIDN'T MEAN TO CUT YOU OFF. BUT IT'S TRUE, IS IT NOT, SIR,
9 THAT THE NURSES NOTE AND THERE'S SEVERAL INSTANCES IN THE
10 NOTE THAT WHEN SHE WAS ADMINISTERED THESE INJECTIONS, SHE
11 WOULD CRY OUT AND MOAN?
12 A. I DID SEE MOANING, YES, SIR. I'M NOT SURE IF IT WAS
13 FROM THE ROLLING OR THE INJECTION.
14 Q. BUT IN ANY EVENT, THEY -- THE NOTATIONS REFLECT AT THE
15 TIME OF THE INTERVENTION, THE TIME WHEN THE SHOT IS
16 ADMINISTERED, IS THAT CORRECT?
17 A. YES, SIR. FOR INSTANCE, PATIENT OFTEN GROANS WHEN
18 TURNED FOR PERINEAL OR MOUTH CARE AND DURING SHOTS.
19 Q. LET'S TALK A LITTLE BIT ABOUT THE MEDICAL DIRECTIVE,
20 DOCTOR. CAN YOU TURN TO THE LEGAL SECTION IN THE EXHIBIT
21 THAT YOU HAVE?
22 A. FOR MRS. LARSEN?
23 Q. UH-HUH.
24 A. OKAY. GOT IT.
25 Q. I GUESS I HAVEN'T GOT IT. JUST LOOKING FOR MY --
3949
1 A. 597.
2 Q. EXCUSE ME, MEDICAL-LEGAL. NOW, I THINK YOUR TESTIMONY
3 WAS, IS YOU HAD AN OPPORTUNITY TO REVIEW THOSE DOCUMENTS
4 PRIOR TO ADMINISTERING THIS COMFORT CARE PLAN, IS THAT
5 CORRECT?
6 A. YES, SIR. THESE ARE ALL IN THE CHART.
7 Q. NOW, THE DOCUMENTS THAT ARE IN THE CHART, AS I
8 UNDERSTAND IT, PERTAIN TO, THERE IS A LIVING WILL, IS THAT
9 CORRECT?
10 A. NUMBER 599, YES, SIR.
11 Q. AND WAS THAT IN THE CHART AT THE TIME, DOCTOR, DO YOU
12 REMEMBER THAT?
13 A. WELL, I'M AWARE THAT SOME OF THESE DOCUMENTS, YOU KNOW,
14 SOME OF THESE DOCUMENTS WERE NOT IN THIS CHART OR IN THE
15 MEDICAL CHART AT THE HOSPITAL. SOME OF THEM I HAVE SEEN
16 WHERE THEY'RE IN PREVIOUS CHARTS, AND SO I'M KIND OF MIXED
17 UP AS TO WHAT WAS HERE. THERE'S SOME --
18 Q. WHAT I WANNA KNOW, DOCTOR --
19 A. -- SURE SOME OF IT WAS HERE.
20 Q. -- IS WHAT DOCUMENT DID YOU GO OFF OF IN TERMS OF
21 ADMINISTERING THIS COMFORT CARE?
22 A. MOST LIKELY THE MEDICAL TREATMENT PLAN.
23 Q. OKAY. AND THAT'S THE ONE THAT BEARS THE ERRONEOUS DATE
24 OF SEPTEMBER 19, 1985.
25 A. RIGHT. OR SO IT SAID.
3950
1 Q. NOW, DID YOU KNOW THAT THAT WAS AN ERRONEOUS DATE ON
2 THAT PARTICULAR TIME?
3 A. NO.
4 Q. READ DOWN THROUGH THE FOLLOWING CARE OR TREATMENT,
5 WITHHOLD TREATMENT AS DIRECTED WITH RESPECT TO THE
6 DECLARANT, WILL YOU?
7 A. SURE. NO C.P.R., NO I.V.'S FOR NUTRITION, HYDRATION,
8 MEDICATION. NO FEEDING TUBES. NO MECHANICAL RESPIRATORY
9 ASSISTANCE. NO ELECTRIC SHOCK FOR DEFIBRILLATION, NO
10 TREATMENT FOR CANCER. OXYGEN AND ORAL MEDICATIONS MAY BE
11 GIVEN FOR RELIEF OF PAIN AND FOR COMFORT.
12 Q. NOW, THAT LAST PART, OXYGEN AND ORAL MEDICATION MAY BE
13 GIVEN FOR RELIEF OF PAIN AND FOR COMFORT. THAT WAS THE
14 DIRECTION THAT JUDITH LARSEN THROUGH HER REPRESENTATIVE
15 MERLIN LARSEN GAVE BACK IN SEPTEMBER OF 1995, ISN'T IT?
16 A. IT APPEARS TO BE. YOU KNOW, '95, IT'S DATED '85 BUT --
17 Q. NOW, YOU DIDN'T GIVE HER ORAL MEDICATIONS FOR PAIN AND
18 COMFORT, DID YOU, DOCTOR?
19 A. I GAVE HER INTRAMUSCULAR MEDICATION.
20 Q. OKAY. SO YOU WEREN'T FOLLOWING THE DIRECTIVE IN RESPECT
21 TO WHAT HAD BEEN GIVEN TO YOU, WERE YOU?
22 A. WELL, SIR, IT DOESN'T SAY YOU CAN'T GIVE INTRAMUSCULAR
23 MEDICATION HERE. SO I WAS FOLLOWING THE DIRECTIVE.
24 Q. IT SAYS, OXYGEN AND ORAL MEDICATION MAY BE GIVEN FOR
25 RELIEF OF PAIN AND COMFORT. YOU'RE SAYING THAT THAT SAYS
3951
1 THAT YOU CAN GIVE IT INTRAMUSCULARLY?
2 A. NO, IT DON'T SAY THAT, BUT IT DOESN'T PRECLUDE IT
3 EITHER. NOWHERE HERE DOES IT SAY, NO INTRAMUSCULAR
4 MEDICATIONS. AND IF YOU'RE GONNA GIVE -- IF THE PATIENT'S
5 GONNA SAY, I'LL HAVE ORAL MEDICATION FOR RELIEF OF PAIN AND
6 COMFORT, AND I CAN'T GIVE IT BECAUSE THEY'RE NOT TAKING
7 P.O., I'D HAVE TO GIVE IT I.M.
8 Q. I SEE, DOCTOR. AND IN RESPECT TO THE DOCUMENT BEFORE
9 YOU, THAT YOU USED ON THAT PARTICULAR DATE, THIS WAS NOT A
10 MEDICAL TREATMENT PLAN THAT WAS PROVIDED FOR IN THE
11 HOSPITALIZATION AT DAVIS HOSPITAL, WAS IT?
12 A. I DON'T KNOW, BUT IF DR. STEVENS FILLED IT OUT, PROBABLY
13 NOT. I DON'T THINK HE WAS AT THAT HOSPITAL.
14 Q. AND IN RESPECT TO THE OTHER DOCUMENT, WHICH IS THE
15 LIVING WILL, THAT ALSO INDICATES THAT MEDICATION TO RELIEVE
16 PAIN MAY BE GIVEN IF OBVIOUSLY NEEDED, DOESN'T IT?
17 A. YES, IT DOES. UNDER NUMBER 4.
18 Q. BUT IT ALSO IN PARAGRAPH 2, INDICATES THAT IT HAS TO
19 BE -- HER TERMINAL ILLNESS HAS TO BE CERTIFIED BY
20 PHYSICIANS, IS THAT CORRECT?
21 A. DOESN'T SAY THAT HER -- IT HAS TO BE CERTIFIED BY TWO
22 PHYSICIANS, AS FAR AS I CAN SEE.
23 Q. WELL, WOULD YOU READ PARAGRAPH 2?
24 A. I DECLARE THAT IF AT ANY TIME I SHOULD HAVE AN INJURY,
25 DISEASE, OR ILLNESS, WHICH IS CERTIFIED IN WRITING TO BE A
3952
1 TERMINAL CONDITION OR PERSISTENT VEGETATIVE STATE, BY TWO
2 PHYSICIANS WHO HAVE PERSONALLY EXAMINED ME, AND IN THE
3 OPINION OF THOSE PHYSICIANS THE APPLICATION OF
4 LIFE-SUSTAINING PROCEDURES WOULD SERVE ONLY TO UNNATURALLY
5 PROLONG THE MOMENT OF MY DEATH AND TO UNNATURALLY POSTPONE
6 OR PROLONG THE DYING PROCESS, I DIRECT THAT THESE PROCEDURES
7 BE WITHHELD OR WITHDRAWN, AND MY DEATH BE PERMITTED TO OCCUR
8 NATURALLY.
9 Q. NOW, DOESN'T THAT SAY BY TWO PHYSICIANS, DOCTOR?
10 A. IT SAYS BY TWO PHYSICIANS. I WAS ANSWERING YOUR
11 PREVIOUS QUESTION A MINUTE AGO.
12 Q. THE PREVIOUS QUESTION. SO THESE ARE THE DOCUMENTS THEN
13 THAT YOU SAY THAT YOU RELIED ON IN ADMINISTERING COMFORT
14 CARE ON THIS PARTICULAR OCCASION, IS THAT CORRECT?
15 A. NO, SIR.
16 Q. THEY'RE NOT THE DOCUMENTS YOU RELIED ON?
17 A. I CAN'T BE SURE EXACTLY WHICH ONE. I THINK I USED THE
18 MEDICAL TREATMENT PLAN. I KNOW SOME OF THOSE DOCUMENTS
19 WOULD HAVE BEEN IN HER CHART AT THAT TIME. AND LIKE I SAID,
20 I CAN'T TELL IF ALL OF THESE PARTICULAR DOCUMENTS WERE
21 THERE.
22 Q. SO YOU DON'T KNOW, IS THAT RIGHT?
23 A. NO, SIR, I DON'T KNOW FOR SURE WHICH ONE IT WAS.
24 Q. YOU DON'T KNOW FOR SURE WHICH ONE IT WAS.
25 A. NO, SIR.
3953
1 Q. BUT YOU WENT AHEAD AND ADMINISTERED MORPHINE, NOT EVEN
2 KNOWING WHICH ONE IT WAS, IS THAT CORRECT?
3 A. YES, SIR.
4 Q. THE RECORDS REFLECT, DOCTOR, THAT ELLEN ANDERSON
5 RECEIVED APPROXIMATELY 16 INTERMUSCULAR INJECTIONS ON THE
6 LAST DAY OF HER LIFE. WOULD THAT BE ACCURATE WITH YOUR
7 MEMORY?
8 A. NO, SIR.
9 Q. DO YOU WANNA GO THROUGH AND COUNT THOSE INJECTIONS WITH
10 ME?
11 A. I CAN TELL YOU RIGHT NOW THERE WERE TWO.
12 Q. EXCUSE ME, WITH JUDITH LARSEN, I'M SORRY.
13 A. OKAY. JUDITH LARSEN, AND YOU'RE SAYING THERE WERE 16
14 INJECTIONS?
15 Q. THAT'S CORRECT.
16 A. ON THE LAST DAY OF HER LIFE.
17 Q. WELL, THE LAST 24-HOUR PERIOD OF HER LIFE.
18 A. OKAY. MISS LARSEN DIED AT 8:10 IN THE EVENING AND I'M
19 NOT -- I HAVEN'T REALLY FIGURED OUT EXACTLY THE NUMBER. THE
20 WAY THEY'VE BEEN CALCULATED IS DAY BY DAY, SO STARTING AT
21 ZERO HOURS THAT DAY, IS THAT WHAT YOU'RE TALKING ABOUT?
22 Q. WELL, LET ME REPHRASE THAT. MAYBE I MISSPOKE. IT'S
23 TRUE, IS IT NOT, ON JANUARY THE 2ND, 1996, SHE RECEIVED
24 SEVEN SHOTS OF MORPHINE OVER THE TIME PERIOD EXTENDING FROM
25 12:30 A.M. THROUGH 10:30 P.M.?
3954
1 A. I'M NOT SURE. HAVE TO GO THROUGH AND COUNT 'EM.
2 Q. IS IT TRUE? DID YOU COUNT SEVEN SHOTS FOR THAT DAY?
3 A. NO, I DIDN'T. YOU DIDN'T ASK ME TO. DO YOU WANT ME TO?
4 Q. OH, I THOUGHT YOU SAID YOU WERE COUNTING, DOCTOR.
5 A. NO. I SAID I'D HAVE TO. I'D BE HAPPY TO. IT MAY TAKE
6 A WHILE BECAUSE THEY'RE SPREAD ALL OVER THE PLACE. WOULD
7 YOU LIKE THAT?
8 Q. WELL, WHAT I'D -- WHAT I'D LIKE, DOCTOR, ASSUME THAT
9 THERE WAS SEVEN SHOTS ADMINISTERED DURING THAT TIME FRAME.
10 A. ALL RIGHT.
11 Q. AND ASSUME THAT THERE'S SOME NINE SHOTS THAT ARE
12 ADMINISTERED THE NEXT DAY ON THE 3RD BETWEEN THE HOURS OF
13 6:30 A.M. AND 6:30 P.M., WHICH IS ABOUT A 12-HOUR PERIOD.
14 ASSUMING THAT TO BE CORRECT, DOCTOR, DO YOU CALL THAT
15 COMFORT CARE?
16 A. YES, SIR.
17 Q. AND DO YOU -- DO YOU THINK THAT THERE'S ANOTHER ROUTE
18 SUCH AS A I.V. PUMP THAT WOULD HAVE MUCH BEEN MORE
19 COMFORTABLE FOR THIS PARTICULAR PATIENT THAN THE
20 INTERMUSCULAR INJECTION?
21 A. WELL, JUST A LITTLE WHILE AGO WE LOOKED IN HERE AND IT
22 SAYS NO I.V.'S, SO I CAN'T DO THAT.
23 Q. I SEE. YOU CAN'T GIVE ANY I.V.'S EVEN THOUGH IT SAID
24 ORAL MEDICATION, YOU CAN GIVE THE INTERMUSCULAR INJECTION,
25 BUT WE'RE TALKING ABOUT COMFORT OF THE PATIENT.
3955
1 A. WELL, I.V.'S SPECIFICALLY PRECLUDED, SO IT WOULD BE
2 AGAINST THE LAW FOR ME TO GIVE IT.
3 Q. I SEE. WOULD YOU AGREE THAT THAT WOULD HAVE BEEN MORE
4 COMFORTABLE THAN THE INTERMUSCULAR INJECTION?
5 A. NO, SIR.
6 Q. YOU DON'T THINK SO?
7 A. NO, SIR.
8 Q. YOU THINK TURNING THE PATIENT OVER AND OVER AND OVER
9 AGAIN SOME 16 TIMES IN A TWO-DAY PERIOD IS MORE COMFORTABLE
10 THAN HAVING AN I.V. PUMP?
11 A. I'D SAY THERE'S NO CONNECTION. TURNING'S DONE AS PART
12 OF COMFORT CARE BECAUSE IF YOU LEAVE A PATIENT IN THE SAME
13 POSITION FOR SOME TIME, THEY MIGHT GET A DECUBITUS ULCER. I
14 THINK THAT AN I.V. CAN BE QUITE IRRITATING AND
15 UNCOMFORTABLE. I COULDN'T DO IT IN ANY CASE BECAUSE IT
16 WOULD HAVE BEEN ILLEGAL.
17 Q. I SEE.
18 MR. WILSON: MAY I HAVE A MINUTE, YOUR HONOR?
19 THE COURT: YES.
20 Q. (BY MR. WILSON) IS IT TRUE, IS IT NOT, THAT ON THE
21 LAST DAY OF JUDITH LARSEN'S LIFE, HER RESPIRATIONS
22 DECREASED?
23 A. IN THE MORNING THEY WERE LOW. AND THEN LATER THEY WERE
24 UP.
25 Q. WHAT TIME DID SHE DIE, DOCTOR?
3956
1 A. I THINK AT 8:10 AT NIGHT.
2 Q. YOUR TESTIMONY IS, IS THE MORPHINE HAD NOTHING TO DO
3 WITH HER DEATH?
4 A. THE MORPHINE WAS GIVEN FOR COMFORT CARE DURING HER
5 DEATH.
6 Q. THE QUESTION WAS, DOCTOR, DO YOU THINK THAT THE MORPHINE
7 HAD NOTHING TO DO WITH HER DEATH?
8 A. NO, SIR, I DON'T THINK IT CAUSED HER -- OR CONTRIBUTED
9 TO HER DEATH. I THINK IT HAD A LOT TO DO WITH HER DEATH IN
10 THAT IT ALLOWED HER TO HAVE A DIGNIFIED DEATH FREE OF PAIN.
11 Q. THINK YOU USED THE TERM PROVIDED HER WITH DIGNITY. IS
12 THAT CORRECT?
13 A. PROVIDED HER WITH MEDICATION.
14 Q. THINK YOU USED THE TERM PROVIDED HER WITH A DIGNIFIED
15 WAY TO DIE. I THINK THAT WAS YOUR EXACT PHRASEOLOGY,
16 DOCTOR, WASN'T IT?
17 A. I DON'T REMEMBER EXACTLY.
18 Q. SO YOU DON'T BELIEVE THAT THE MORPHINE HASTENED IN ANY
19 WAY HER -- HER DEATH?
20 A. NO, SIR.
21 Q. AND OVER THIS FOUR-DAY TIME PERIOD, YOU CONTINUED TO
22 GIVE INJECTION AFTER INJECTION AFTER INJECTION OF MORPHINE,
23 DID YOU NOT?
24 A. NO. THE NURSES DID.
25 Q. BUT YOU ORDERED IT, DIDN'T YOU, DOCTOR?
3957
1 A. YES, SIR.
2 Q. AND WHAT WERE THE INDICATIONS, DOCTOR, THAT SHE WAS IN
3 ANY KIND OF PAIN?
4 A. SHALL I GO THROUGH AND GET 'EM ALL FOR YOU? THERE'S --
5 Q. I MEAN GENERALLY SPEAKING, WHAT WERE THE NATURE OF THE
6 PAIN COMPLAINTS, DOCTOR?
7 A. WELL, THERE WERE TWO KINDS. OF COURSE, THE NURSES NOTE
8 AND I NOTED PAIN, SUFFERING.
9 Q. UH-HUH.
10 A. WITHOUT THIS MORPHINE, THIS LADY, WITHOUT HER I.V.,
11 SLOWLY BECOMING MORE AND MORE DEHYDRATED, WITH MULTIPLE
12 PROBLEMS, IT'S MY EXPERIENCE AS A PHYSICIAN, THAT SHE WOULD
13 HAVE HAD AN ANGUISHED DEATH.
14 Q. NOW, YOUR EXPERIENCE AS A PHYSICIAN, BUT SHE DID NOT
15 EXHIBIT ANY OF THOSE SIGNS, DID SHE?
16 A. WELL, ACTUALLY, SHE DID SHOW SIGNS OF PAIN.
17 Q. AND WAS THAT MODERATE, WAS THAT MILD, WAS THAT SEVERE
18 PAIN?
19 A. IT WAS BAD ENOUGH THAT DURING THOSE DAYS THE NURSES FELT
20 IT NECESSARY TO GIVE P.R.N.'S OF MORPHINE ON TOP OF WHAT WAS
21 REGULARLY SCHEDULED.
22 Q. THERE WAS ALSO A NURSE WHO WITHHELD THE MORPHINE BECAUSE
23 OF HER RESPIRATIONS, TRUE?
24 A. ABSOLUTELY.
25 Q. AND WAS THAT A VALID RESPONSE ON -- BY THAT NURSE?
3958
1 A. YES, IT WAS WITHIN HER SCOPE OF CARE AND HER DUTIES OR
2 RESPONSIBILITY.
3 Q. BUT YOU DIDN'T THINK THAT WAS APPROPRIATE, DID YOU?
4 A. I THINK IT WOULD HAVE BEEN BETTER IF SHE CALLED ME, AND
5 THAT WE'D MADE THE DOSAGE SCHEDULE MORE FLEXIBLE WITH A --
6 Q. EXCUSE ME.
7 A. -- WITH DIFFERENT LEVELS GIVEN, NOT JUST A STRAIGHT
8 5 MILLIGRAMS.
9 Q. I GUESS WE'LL NEVER KNOW, WILL WE, DOCTOR, WHETHER SHE
10 WOULD HAVE SUFFERED AN ANGUISHED DEATH, AS YOU CALL IT?
11 A. NO, SIR, WE WON'T.
12 Q. THE FACT OF THE MATTER IS, YOU MADE THE DECISION AS TO,
13 NUMBER ONE, THE DECISION THAT SHE WAS DYING, ISN'T THAT
14 TRUE?
15 A. I MADE THE ULTIMATE DECISION THAT IT APPEARED THAT SHE
16 WAS DYING. THE JUDGMENT THAT I SHOULD GO TALK WITH THE
17 FAMILY AND DISCUSS THAT, YES, SIR.
18 Q. AND THEN YOU MADE THE ULTIMATE DECISION TO ADMINISTER
19 MORPHINE, ISN'T THAT TRUE?
20 A. YES, SIR.
21 Q. AND YOU DIDN'T REALLY DISCUSS WITH THE FAMILY THE
22 ALTERNATIVES FOR TREATMENT FOR YOUR MOTHER, DID YOU?
23 A. FOR HER -- FOR THEIR MOTHER, I DISCUSSED --
24 Q. FOR THEIR MOTHER.
25 A. YOU KNOW, I CAN'T REMEMBER THE EXACT WORDS THAT WERE
3959
1 SPOKEN AT THE TIME.
2 Q. DID YOU THINK TO TALK TO MERLIN ABOUT MAYBE SENDING HER
3 HOME AND GETTING HER SOME HOSPICE CARE?
4 A. WELL, NO, SIR. MERLIN WAS TELLING ME HE DIDN'T HAVE A
5 PLACE TO BRING HER.
6 Q. HE WAS TALKING ABOUT A NURSING HOME FACILITY, WASN'T HE?
7 A. RIGHT.
8 Q. OKAY. YOU DIDN'T MAKE THAT SUGGESTION TO HIM THAT HE
9 POSSIBLY COULD TAKE HER HOME, SHE WAS GONNA DIE -- IF SHE
10 WAS GONNA DIE IN A FEW DAYS. WHY NOT?
11 A. I DIDN'T THINK OF IT.
12 Q. WELL, IT'S TRUE, DOCTOR, YOU WOULDN'T HAVE BEEN ABLE TO
13 ADMINISTER THE MORPHINE TO HER IN THAT CONTEXT, WOULD YOU?
14 A. AT HOME?
15 Q. HUH?
16 A. I'M SORRY?
17 Q. YOU WOULDN'T HAVE BEEN ABLE TO ADMINISTER MORPHINE TO
18 HER IF SHE'D GONE HOME, WOULD YOU?
19 A. WELL, SURE, SHE COULD HAVE HAD HOSPICE CARE COME AND
20 GIVE HER MORPHINE.
21 Q. YOU MADE THE DECISION THAT SHE WASN'T GOING TO BE
22 TRANSFERRED OFF THE UNIT, ISN'T THAT CORRECT?
23 A. YES, SIR.
24 Q. EVEN THOUGH SHE DIDN'T FIT THE CRITERIA ANYMORE ONCE SHE
25 WAS SUFFERING FROM A LIFE-THREATENING DISEASE OR ILLNESS,
3960
1 ISN'T THAT CORRECT?
2 A. THAT'S INCORRECT.
3 Q. HOW IS THAT INCORRECT?
4 A. THE ADMINISTRATION CRITERIA TO THE UNIT PRECLUDE
5 LIFE-THREATENING DISEASES OF AN ACUTE SORT. THERE WAS NO
6 RULE THAT SAYS, AS FAR AS I'M AWARE OF, THAT THEY HAVE TO
7 LEAVE THAT UNIT IF THEY BECOME ACUTELY ILL.
8 Q. WELL, THE UNIT IS NOT SET UP FOR ANY KIND OF CRITICAL
9 CARE, IS IT?
10 A. IT'S NOT AN I.C.U.
11 Q. THE I.C.U. IN FACT IS NEXT DOOR TO THE UNIT, ISN'T IT?
12 A. NO, SIR.
13 Q. IS IT JUST DOWN THE HALLWAY?
14 A. IT'S DOWN THE HALLWAY ON THAT LEVEL, ON THAT FLOOR OF
15 THE HOSPITAL, THIRD FLOOR.
16 Q. OKAY. SO IT WOULD HAVE BEEN AN EASY MATTER TO TRANSFER
17 HER OFF THE UNIT TO WHERE SHE COULD BE MONITORED AND
18 ASSESSED MORE APPROPRIATELY, ISN'T THAT TRUE?
19 A. WELL, I WOULDN'T CALL IT AN EASY MATTER BECAUSE ONCE
20 AGAIN, THE PATIENT HAS TO BE MOVED. AND SHE'S RECEIVING THE
21 CARE OF SOME GOOD NURSES WHO ARE PSYCHIATRICALLY TRAINED,
22 AND PART OF THEIR TRAINING IS TO DEAL WITH THIS SORT OF
23 THING IN THE SENSE OF WORKING WITH FAMILIES OVER EMOTIONAL
24 ISSUES THAT CAN COME UP.
25 Q. ISN'T IT TRUE, DOCTOR, THAT PART OF THE COMFORT CARE
3961
1 PHILOSOPHY IS TO TRY AND ASSIST THE FAMILY MEMBERS IN THIS
2 DYING PROCESS?
3 A. YES, SIR. THAT'S WHAT WAS DONE.
4 Q. NOW, YOU HEARD THE TESTIMONY OF MERLIN LARSEN AND HAROLD
5 LARSEN IN HERE, DIDN'T YOU?
6 A. YES, SIR.
7 Q. AND THEY DESCRIBED THEIR MOTHER AS BEING COMATOSE THOSE
8 LAST DAYS OF HER LIFE, DIDN'T THEY?
9 MR. STIRBA: YOUR HONOR, IT'S IMPROPER FORM --
10 THE COURT: SUSTAINED.
11 MR. STIRBA: -- OF THE QUESTION.
12 THE COURT: SUSTAINED.
13 Q. (BY MR. WILSON) ISN'T IT TRUE THAT JUDITH LARSEN WAS
14 IN A COMATOSE STATE THE LAST FEW DAYS OF HER LIFE.
15 A. NO, SIR.
16 Q. SHE WAS NOT LETHARGIC?
17 A. SHE WAS AT TIMES QUITE LETHARGIC.
18 Q. HOW OFTEN DID YOU COME INTO THE UNIT TO SUPERVISE THE
19 MONITORING ASSESSMENT OF JUDITH LARSEN?
20 A. ONCE A DAY.
21 Q. HOW LONG WERE YOU THERE FOR?
22 A. WITH RESPECT TO MRS. LARSEN?
23 Q. UH-HUH.
24 A. I GUESS IT WOULD VARY. I'M NOT SURE.
25 Q. ISN'T IT TRUE, DOCTOR, THAT YOU WOULD FREQUENTLY COME IN
3962
1 IN THE EARLY MORNING HOURS WHEN THESE PATIENTS WERE ASLEEP?
2 A. NO, SIR.
3 Q. THAT'S NOT TRUE?
4 A. NO, SIR, IT'S NOT.
5 Q. OR THAT YOU WOULD COME IN IN THE LATE EVENING HOURS WHEN
6 THEY WERE ALSO ASLEEP?
7 MR. STIRBA: YOUR HONOR, I'M GONNA OBJECT,
8 RELEVANCY, IF WE'RE NOT TALKING ABOUT THE FIVE PATIENTS
9 INVOLVED HERE.
10 THE COURT: ARE YOU TALKING ABOUT THESE PATIENTS?
11 MR. WILSON: I AM.
12 THE COURT: OKAY. GO AHEAD.
13 Q. (BY MR. WILSON) DURING THE TIME PERIOD EXTENDING FROM
14 DECEMBER 6TH UP UNTIL JANUARY 14TH, ISN'T IT TRUE THAT YOU
15 WOULD COME ON TO THE UNIT IN THE EARLY MORNING HOURS, IT WAS
16 YOUR PATTERN TO COME ON TO THE UNIT BEFORE THE PATIENTS WERE
17 AWAKE, ISN'T THAT CORRECT?
18 A. NO, SIR. YOU USED THE WORDS FREQUENT AND PATTERN.
19 OCCASIONALLY I WOULD COME IN EARLY.
20 Q. I SEE. BUT YOU WOULD COME IN ONCE A DAY?
21 A. YES, SIR.
22 Q. AND YOU WERE EMPLOYED AT -- WHERE ELSE WERE YOU EMPLOYED
23 AT THIS TIME, SIR?
24 A. WELL, I WOULD HAVE BEEN IN MY OUTPATIENT OFFICE AT WEST
25 VALLEY CITY. AND DURING THIS TIME, I THINK I NO LONGER
3963
1 WORKED FOR EAST VALLEY MENTAL HEALTH.
2 Q. SO IS THIS THE PRIMARY SOURCE OF YOUR INCOME?
3 A. I'D SAY IT'S PROBABLY SPLIT BETWEEN THIS AND MY
4 OUTPATIENT OFFICE.
5 Q. OKAY. AND IN RESPECT TO THIS PARTICULAR PLACE OF
6 EMPLOYMENT, YOU DIDN'T HAVE ANY SET HOURS, DID YOU?
7 A. WHERE?
8 Q. HUH?
9 A. WHERE? AT THE HOSPITAL?
10 Q. AT THE HOSPITAL.
11 A. WELL, I TOLD THE FOLKS AT THE HOSPITAL THAT I'D
12 DEFINITELY BE THERE DURING THE 8:00 TO 5:00 TIME FOUR OR
13 FIVE DAYS A WEEK SO THAT THE STAFF, THE SOCIAL WORKER STAFF
14 WHO WERE MOSTLY THERE DURING THE DAY, COULD SET UP FAMILY
15 MEETINGS AND SUCH AS THEY NEEDED TO. AND, YOU KNOW, WE HAD
16 TO HAVE SOME REGULAR HOURS BECAUSE WE HAD ALL THESE MEETINGS
17 THAT WE WOULD HAVE AS A TEAM --
18 Q. I SEE. DID YOU --
19 A. -- THE OTHER DAYS I COME IN WHENEVER --
20 Q. DID YOU HAVE A TIME CLOCK?
21 A. NO, SIR.
22 THE COURT: WHY DON'T WE JUST KIND OF SEPARATE,
23 JUST WAIT --
24 THE WITNESS: OH, I'M SORRY.
25 THE COURT: -- FOR ONE ANOTHER --
3964
1 Q. (BY MR. WILSON) SO THERE'S NO -- THERE'S NO RECORD AS
2 TO LOG-IN TIMES OR WHEN YOU LOGGED OUT --
3 A. NO, SIR.
4 Q. -- IS THAT CORRECT.
5 A. NO, SIR.
6 Q. AND YOU WERE FREE TO GO AND LEAVE AS YOU PLEASE.
7 A. YES, SIR.
8 Q. CRITICAL TO THIS TIME PERIOD WE'RE TALKING ABOUT, A GOOD
9 PORTION OF IT IS IN THE HOLIDAY SEASON, IS IT NOT?
10 A. YES, SIR.
11 Q. AND I ASSUME THAT YOU HAVE A FAIRLY ACTIVE LIFESTYLE, IS
12 THAT CORRECT?
13 A. WHAT DO YOU MEAN BY ACTIVE?
14 Q. WELL, I UNDERSTAND YOU LIKE TO SKI.
15 A. I DO SKI.
16 Q. AND WOULD YOU FREQUENTLY GO SKIING DURING THE HOLIDAY
17 TIME PERIOD?
18 A. WELL, HOW DO YOU DEFINE FREQUENTLY?
19 Q. WELL, ONCE OR TWICE A WEEK?
20 A. PROBABLY.
21 Q. DID YOU LIKE TO -- IN FACT, YOU GAVE THE CHRISTMAS PARTY
22 THIS YEAR, DIDN'T YOU?
23 A. YES, SIR.
24 MR. WILSON: I DON'T KNOW, YOUR HONOR, IF YOU'D --
25 I'M GONNA BE -- I HAVE TO GO THROUGH THESE OTHER THREE ONE
3965
1 BY ONE --
2 THE COURT: WELL, LET'S JUST GO UNTIL 5:00 BECAUSE
3 WE TOOK MORE TIME --
4 MR. WILSON: OKAY.
5 THE COURT: -- WHEN WE HAD THE FEW MINUTES OUT OF
6 THE JURY'S PRESENCE, SO LET'S --
7 Q. (BY MR. WILSON) LET'S TALK ABOUT MARY CRANE, DOCTOR.
8 PREVIOUSLY TESTIFIED I THINK ON ADMISSION THAT MARY CRANE
9 WAS VERY SICK, IS THAT CORRECT?
10 A. SHE HAD MULTIPLE MEDICAL PROBLEMS, THAT'S CORRECT.
11 Q. BUT YET YOU FOUND THAT SHE WAS OKAY FOR ADMISSION TO THE
12 GEROPSYCH UNIT, IS THAT CORRECT?
13 A. YES, SIR.
14 Q. SO SHE WAS STABLE, I ASSUME, NOT SUFFERING FROM ANY
15 LIFE-THREATENING DISORDERS, IS THAT CORRECT?
16 A. AS FAR AS I COULD TELL.
17 Q. AS FAR AS YOU COULD TELL.
18 A. ACUTE LIFE-THREATENED.
19 Q. DID YOU -- WHAT RECORDS DID YOU HAVE AVAILABLE TO YOU AT
20 THE TIME THAT YOU FIRST DID YOUR ASSESSMENT OF MARY CRANE?
21 A. AT THIS TIME, FOUR AND A HALF, FIVE YEARS LATER, I DON'T
22 REMEMBER EXACTLY WHAT RECORDS I HAD AVAILABLE.
23 Q. WELL, WOULD THE RECORDS THAT ARE CONTAINED IN THE
24 INITIAL -- WELL, THERE ARE RECORDS THAT ARE IN FROM THE
25 NURSING HOME. ARE THEY CONTAINED IN THE EXHIBIT THAT YOU
3966
1 HAVE IN FRONT OF YOU?
2 A. LOOKS LIKE UNDER OTHER, THERE'S A LOT OF STUFF. I
3 HAVEN'T HAD A CHANCE TO LOOK AT IT YET.
4 Q. YOU DON'T RECALL LOOKING AT THAT STUFF AT THE TIME THAT
5 MARY CRANE CAME TO HOSPITAL, IS THAT CORRECT?
6 A. I PROBABLY DID LOOK THROUGH THIS SOME, I'M SURE I -- I
7 MEAN IT'S LIKE 50 PAGES OR SO, 80 PAGES. I DOUBT I READ IT
8 ALL.
9 Q. YOU PREVIOUSLY TESTIFIED THAT YOU ORDERED A DURAGESIC
10 PATCH FOR 25 MICROGRAMS, IS THAT CORRECT?
11 A. THAT WAS MY INITIAL ORDER ON --
12 Q. AND THEN YOU CHANGED YOUR -- YOU CHANGED YOUR MIND AND
13 ORDERED A 50-MICROGRAM PATCH.
14 A. THAT'S RIGHT.
15 Q. IN FACT, I THINK YOU REFER TO THE MICROGRAM PATCH AS A
16 LOW -- 50 MICROGRAM WAS A LOW DOSAGE ORDER, IS THAT CORRECT?
17 A. YES, SIR.
18 Q. NOW, YOU'VE SEEN THE EXHIBIT THAT'S -- THE P.D.R. LISTED
19 FOR THE DURAGESIC. THAT'S EXHIBIT NUMBER 41. DO YOU WANNA
20 TAKE A LOOK AT THAT, DOCTOR?
21 A. WELL, I ALREADY HAVE.
22 Q. THAT PARTICULAR EXHIBIT RECOMMENDS THAT YOU NOT START
23 OUT AT ANY HIGHER THAN 25 MICROGRAMS, ISN'T THAT TRUE?
24 A. IN NON OPIOID TOLERANT PATIENTS --
25 Q. OKAY.
3967
1 A. -- SHE WAS OPIOID TOLERANT.
2 Q. DID YOU KNOW THAT AT THE TIME?
3 A. YES. SHE HAD BEEN ON LORTAB.
4 Q. DO YOU KNOW HOW MUCH LORTAB SHE WAS RECEIVING?
5 A. APPROXIMATELY ONE A DAY.
6 Q. AND THAT HAD BEEN THE MEDICATION THAT SHE HAD RECEIVED
7 DURING THAT TIME PERIOD, RIGHT? THAT SHE WAS --
8 A. JUST PREVIOUS, YES --
9 Q. -- IN THE NURSING HOME --
10 A. -- WELL, SHE GOT OTHERS, TOO.
11 Q. WELL, BASICALLY, THE -- FOR PAINKILLER WAS THE LORTAB,
12 IS THAT RIGHT?
13 A. SHE ALSO HAD CODEINE AND DARVOCET.
14 Q. AND THEY WERE AT DIFFERENT TIME FRAMES, WEREN'T THEY?
15 A. BELIEVE SO. YES, I THINK SHE WAS ON THE LORTAB RIGHT
16 BEFORE SHE CAME TO US.
17 Q. OKAY. SO SHE RECEIVES THIS OVER A -- ONE LORTAB A DAY,
18 OVER THE -- THIS TIME PERIOD, AND YOU WOULD DESCRIBE THAT AS
19 BEING OPIOID TOLERANT.
20 A. OPIOID TOLERANT, YES, SIR.
21 Q. OPIOID TOLERANT?
22 A. YES, SIR.
23 Q. SO YOU ORDER THE 50-MICROGRAM PATCH.
24 A. YES, SIR.
25 Q. FOR WHAT YOU PERCEIVE AS CHRONIC BACK PAIN.
3968
1 A. YES, SIR.
2 Q. AND THEN IN ADDITION, YOU PUT HER ON A REGIMEN OF
3 VARIOUS TYPES OF SEDATING DRUGS, IS THAT CORRECT?
4 A. VARIOUS TYPES OF PSYCHIATRIC DRUGS --
5 Q. WELL, WITH SEDATING --
6 A. -- AS WELL AS OTHERS --
7 Q. -- QUALITIES, IS THAT CORRECT?
8 A. MANY OF THEM WITH SEDATING QUALITIES TO ONE DEGREE OR
9 ANOTHER.
10 Q. SEE IF WE CAN FIND HER CHART HERE. THAT'S STATE'S
11 EXHIBIT 36. TAKE LOOK AT THAT EXHIBIT. DO THE DOSAGES, THE
12 AMOUNTS OF ADMINISTRATION OF MEDICATIONS GIVEN CONFORM TO
13 YOUR REVIEW OF THE RECORDS?
14 A. ALL THE MEDICATIONS UP HERE ARE MEDICATIONS THAT WERE
15 GIVEN, AND I DON'T REALLY -- I'VE NEVER REALLY LOOKED A THIS
16 CHART AND FIGURED OUT IF YOU HAVE IT PRECISELY ACCURATE AS
17 TO AMOUNTS. AND YOU'VE GOT KIND OF THIS --
18 Q. BUT THOSE ARE MEDICATIONS THAT YOU HAVE ORDERED
19 ADMINISTERED TO HER.
20 A. YES, SIR.
21 Q. IS THAT CORRECT?
22 A. RISPERDAL, SERZONE, TRAZODONE, DEPAKENE, ATIVAN, AND
23 DURAGESIC, YES, SIR.
24 Q. NOW, THE ADDITIVE EFFECTS, AS YOU'VE EARLIER TESTIFIED
25 TO, WOULD BE PRESENT IN THOSE PARTICULAR DRUGS, IS THAT
3969
1 CORRECT?
2 A. PERHAPS.
3 Q. WELL, DIDN'T YOU TESTIFY EARLIER THAT THOSE ARE ALL
4 CENTRAL NERVOUS SYSTEM DEPRESSANT EFFECTS?
5 A. THEY ALL HAVE DEPRESSANT EFFECTS IN DIFFERENT DEGREES
6 AND ACTUALLY IN DIFFERENT WAYS.
7 Q. BUT DIDN'T YOU TESTIFY, DOCTOR, THAT IF YOU GIVE THESE
8 PARTICULAR DRUGS, THEY CAN HAVE ADDITIVE EFFECT?
9 A. YES, SIR.
10 Q. OKAY. AND IN ADDITION TO THE ADDITIVE EFFECTS OF THE
11 PSYCHOTROPICS, YOU ALSO HAVE ADMINISTERED A DURAGESIC PATCH,
12 IS THAT CORRECT?
13 A. IT IS.
14 Q. AND AS I UNDERSTAND IT, THE FIRST DURAGESIC PATCH FELL
15 OFF IN 24 HOURS, SO ANOTHER ONE WAS PLACED ON MARY CRANE, IS
16 THAT CORRECT?
17 A. THINK IT FELL OFF RIGHT AWAY, BUT IT WOULD HAVE BEEN
18 WITHIN THE FIRST 24 HOURS, YES. I --
19 Q. NOW, AS I UNDERSTAND THE TESTIMONY -- OR LET ME ASK YOU
20 THIS QUESTION: THE DURAGESIC PATCH HAS A PERIOD OF TIME
21 THAT IT BUILDS UP INTO THE SYSTEM, IS THAT RIGHT?
22 A. THAT'S THE WAY I UNDERSTAND IT.
23 Q. SO IT BUILDS UP TO A CERTAIN LEVEL.
24 A. CORRECT.
25 Q. NOW, DO YOU AGREE THAT THERE IS A CONVERSION RATIO AS IT
3970
1 PERTAINS TO -- YOU CALLED IT THE GOLD STANDARD OF MORPHINE?
2 FOR THE DURAGESIC PATCH?
3 A. THERE'S A ROUGH GUIDELINE. I'M NOT SURE THAT IT'S BEEN
4 FULLY AUTHENTICATED.
5 Q. AND WHAT'S THE ROUGH GUIDELINE, DOCTOR?
6 A. WELL, FOR EACH DOSE OF DURAGESIC, THERE'S A ROUGH
7 GUIDELINE AS TO APPROXIMATELY HOW MUCH MORPHINE IT EQUALS,
8 ORAL, I.M., I.V., HAVE TO ADJUST FOR THE ROUTE OF
9 ADMINISTRATION.
10 Q. AND WERE YOU AWARE OF THIS GUIDELINE BACK IN 1995?
11 A. I CALLED THE PHARMACIST.
12 Q. I SEE. AND WHAT IS THE GUIDELINE THAT YOU WERE TOLD?
13 WHAT IS A 50-MICROGRAM DURAGESIC PATCH EQUIVALENT TO? IN
14 TERMS OF MORPHINE SULFATE I.M. INJECTION?
15 A. YOU KNOW, I DON'T RECALL THIS ABSOLUTELY, BUT I THINK
16 IT'S EQUIVALENT TO 5 MILLIGRAMS I.M. EVERY FOUR HOURS.
17 Q. SO YOUR TESTIMONY IS A 50-MICROGRAMS PATCH WOULD BE
18 EQUIVALENT TO 20 -- OR EXCUSE ME, 30 MILLIGRAMS IN A DAY, IN
19 A 24-HOUR PERIOD?
20 A. YES, SIR, I'M PRETTY SURE THAT'S THE CASE.
21 Q. THAT'S WHAT YOU RECALL?
22 A. THAT'S WHAT I RECALL. BASICALLY, I ASKED THE PHARMACIST
23 WHAT HE THOUGHT, AND HE SAID 50 SOUNDED FINE.
24 Q. HE TOLD YOU 50 -- SAID 50 WOULD BE JUST FINE.
25 A. THAT'S WHAT I DOCUMENTED HERE.
3971
1 Q. SO HE DIDN'T -- YOU DIDN'T DIAGNOSIS OR PRESCRIBE IT,
2 THE PHARMACIST DID, IS THAT RIGHT?
3 A. NO, SIR. I PRESCRIBED IT. PHARMACIST GAVE ME ADVICE.
4 Q. ON JANUARY -- YOU CONTINUED TO APPLY THAT PATCH OVER THE
5 PERIOD OF TIME, IS THAT CORRECT?
6 A. I'M SORRY?
7 Q. SHE CONTINUES TO HAVE THE PATCH ON ALL DURING THE TIME
8 PERIOD THAT SHE WAS IN THE HOSPITAL.
9 A. YES, SIR.
10 Q. IN FACT, IT'S INCREASED, IS IT NOT, ON JANUARY 4TH TO 75
11 MICROGRAMS?
12 A. YES, IT ITS.
13 Q. ON THE 1ST OF JANUARY, IS THAT THE DATE THAT THE VAGINAL
14 FISTULA IS NOTED?
15 A. IT'S THE FIRST TIME I HAVE IT NOTED. I KNOW THAT THE
16 NURSES NOTED IT THAT NIGHT PREVIOUS, I BELIEVE. THEY
17 BROUGHT IT TO MY ATTENTION ON THE MORNING OF THE 1ST,
18 JANUARY 1ST. THAT'S WHEN I LEFT MY NOTE SAYING, HAS A
19 FISTULA.
20 Q. AND IT'S REPORTED BECAUSE THE NURSE OBSERVES -- AND I
21 THINK IT WAS NURSE LONG OBSERVES A -- SOME FECAL MATTER IN
22 THE VAGINA, IS THAT CORRECT?
23 A. WELL, I DON'T KNOW WHICH NURSE IT WAS. I CAN LOOK THAT
24 UP.
25 Q. WELL, I DON'T THINK THAT'S IMPORTANT. JUST -- JUST
3972
1 SUFFICE IT TO SAY FOR MY QUESTION THAT IT'S NOTED AS FECAL
2 MATTER IN THE VAGINA.
3 A. RIGHT. AND ONE OF THE NURSES TOLD ME ABOUT THAT.
4 Q. AND AT THAT TIME, A CONSULT IS CALLED IN TO DR. MEEKS,
5 IS THAT RIGHT?
6 A. LET'S SEE, DR. DIENHART SAW THAT FIRST I THINK, YEAH.
7 AND THEN DR. MEEKS CAME AND SAW HER ON THE 2ND.
8 Q. DR. MEEKS NOTED THAT THERE WAS NO INFECTION AT THAT
9 TIME, DIDN'T HE?
10 A. NO, HE DIDN'T. HE DIDN'T SAY ANYTHING ABOUT --
11 Q. HE DIDN'T MAKE A NOTE OF ANY INFECTION, DID HE?
12 A. NO. HE JUST SAID, TREAT IT WITH BROAD SPECTRUM
13 ANTIBIOTICS AND LOW RESIDUE DIET.
14 Q. AND THAT WAS DONE ON JANUARY 2ND OF '96.
15 A. YES, SIR.
16 Q. CORRECT?
17 A. YES, SIR.
18 Q. AND HE INDICATED AT THAT TIME THAT IT COULD BE TREATED
19 WITH -- POSSIBLY SUCCESSFULLY TREATED TO 30 TO 35 PERCENT OR
20 25 TO 35 PERCENT BY TREATING WITH BROAD SPECTRUM
21 ANTIBIOTICS, IS THAT CORRECT?
22 A. AND LOW RESIDUE DIET.
23 Q. AND THAT WAS NOT IMPLEMENTED UNTIL THREE DAYS LATER ON
24 THE 5TH, IS THAT CORRECT?
25 A. NO, SIR. THE LOW FIBER DIET WAS ADDED ON THE 3RD, AND
3973
1 THEN ASKED, PLEASE HAVE -- DR. DIENHART MAY ORDER A
2 GYNECOLOGIST'S RECOMMENDATIONS. GIVE HIM MY PHONE NUMBER SO
3 HE CAN CALL ME IF NECESSARY. THE NURSE CALLED DR. DIENHART,
4 BUT HE DIDN'T REALLY DO ANYTHING.
5 Q. DR. DIENHART DIDN'T DO ANYTHING.
6 A. NO. SO FINALLY ON THE 5TH, I WENT AHEAD AND ORDERED IT.
7 Q. I SEE. SO YOU WERE RELYING ON DR. DIENHART?
8 A. YES, SIR.
9 Q. THIS WAS YOUR PATIENT.
10 A. YES, SIR.
11 Q. AND YOUR TESTIMONY IS, IS AS I UNDERSTAND IT, THAT THIS
12 PATIENT DEVELOPS A SEPSIS?
13 A. YES, SIR.
14 Q. IS IT YOUR BELIEF THAT THE SEPSIS WAS CAUSED AS A RESULT
15 OF THIS VAGINAL FISTULA?
16 A. I REALLY DON'T KNOW IF IT WAS THAT OR A URINARY TRACT
17 INFECTION.
18 Q. NOW, IT'S TRUE, IS IT NOT, THAT THE URINARY TRACT
19 INFECTION WAS BEING TREATED WITH CIPRO?
20 A. HAD BEEN TREATED WITH CIPRO.
21 Q. OKAY. AND ISN'T IT TRUE THAT ON THE 4TH OF JANUARY, SHE
22 SHOWS NO BACTERIA?
23 A. YOU MEAN LIKE ON HER URINALYSIS?
24 Q. UH-HUH.
25 A. I DON'T REALLY KNOW WHERE YOU'VE GOT THOSE HERE. CAN
3974
1 YOU HELP ME? OH, LABS.
2 WELL, YOU KNOW, I HAVE ONE HERE, IT DOES HAVE
3 BACTERIA, BUT I CAN'T READ THE DATE ON IT.
4 Q. LET ME SHOW YOU -- OR TURN TO MED PAGE 00269.
5 A. OKAY. AND HERE'S ONE, THE 4TH, IT'S A URINALYSIS THAT
6 SHOWS WHITE BLOOD CELLS ZERO TO ONE. DOESN'T NOTE WHETHER
7 THERE WERE BACTERIA OR NOT FOUND.
8 Q. ISN'T THERE A PROVISION UP, JUST UP FROM THERE THAT
9 SHOWS BACTERIA, AND THEN THERE'S OFF TO THE SIDE NEGATIVE?
10 A. RIGHT. BUT NOBODY'S WRITTEN ANYTHING IN THERE, SO YOU
11 CAN'T TELL WHETHER THERE WERE OR NOT. NEGATIVE WOULD BE THE
12 NORMAL STATE, BUT NOBODY WROTE WHETHER IT WAS NEGATIVE OR
13 POSITIVE. USUALLY IT WOULD BE REPORTED NEGATIVE, FEW, MANY.
14 THE COURT: MR. WILSON --
15 Q. (BY MR. WILSON) SO DID SHE HAVE A -- DID SHE HAVE A
16 URINARY TRACT INFECTION ON THE 4TH, DOCTOR?
17 A. IT'S HARD TO SAY.
18 Q. IT'S HARD TO SAY.
19 THE COURT: MR. WILSON, WOULD THIS BE A GOOD PLACE
20 TO BREAK OR --
21 MR. WILSON: IT WOULD BE.
22 THE COURT: OKAY.
23 (THE COURT ADMONISHED, THEN EXCUSED THE JURY.
24 THE COURT AND COUNSEL HELD A SCHEDULING
25 CONFERENCE, THEN RECESSED FOR THE EVENING.)
3975
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3
*****
4 ______________________________
)
5 STATE OF UTAH, )
)
6 PLAINTIFF, )
)
7 ) REPORTER'S TRANSCRIPT
VS. )
8 ) CASE NO. 991700983
ROBERT ALLEN WEITZEL, )
9 )
DEFENDANT. )
10 ______________________________)
11 *****
12 TRIAL VOLUME 19 OF 21
13 JULY 6, 2000
14 HONORABLE THOMAS L. KAY
15
*****
16
17 APPEARANCES:
18 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
19 MS. CHARLENE BARLOW
20
FOR THE DEFENDANT: MR. PETER STIRBA
21 MR. JOHN WARREN MAY
22
23
24
25
3976
1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 THE COURT: WE DON'T HAVE THE JURY HERE BECAUSE WE
3 HAVE A PROBLEM. ONE OF THE JURORS HE'S THE ONE, TWO, THIRD
4 ONE ON THE FRONT ROW KIND OF REDDISH HAIR AND GLASSES WAS
5 RUSHED TO THE HOSPITAL AND IS IN INTENSIVE CARE WITH CHEST
6 PAINS AND HE WAS SICK YESTERDAY AND I JUST TALKED TO HIS
7 WIFE AND SO WE NEED TO DECIDE -- I MEAN, WE DON'T KNOW
8 WHAT'S GOING TO HAPPEN. THE WIFE IS VERY NERVOUS ABOUT
9 WHAT'S GOING ON AND SO HE'S DOING A BUNCH OF TESTS TODAY.
10 HE WAS TAKEN THERE LAST NIGHT. AND, YOU KNOW, OBVIOUSLY WE
11 HAVE ADDITIONAL JURORS, THAT'S NOT A PROBLEM BUT WE HAVE TO
12 DECIDE WHAT WE'RE GOING TO DO. THERE'S NO -- I WAS TRYING
13 TO SAY WHEN WILL THEY KNOW AND THE WIFE SAYS THEY WILL
14 NOT -- THEY DON'T KNOW. HE WAS RUSHED TO THE HOSPITAL LAST
15 EVENING AND COMPLAINING OF CHEST PAINS AND HE'S IN INTENSIVE
16 CARE.
17 SO I GUESS WHAT I WOULD SUGGEST DOING IS WE'RE NOT
18 GOING TO POSTPONE THE TRIAL TO SEE THE OUTCOME BECAUSE WE
19 DON'T KNOW WHAT'S GOING TO HAPPEN. SO WHAT -- MR. WILSON, I
20 WAS JUST TELLING THE ATTORNEYS THAT THE JUROR, IS IT NUMBER
21 TEN? JUROR NUMBER 10, ONE, TWO, THREE OVER IN -- THE MIDDLE
22 THE JUROR IN THE FRONT ROW REDDISH HAIR AND GLASSES IS
23 INTENSIVE CARE WITH CHEST PAINS AND HE WENT TO THE HOSPITAL
24 LAST NIGHT. AND SO I PROPOSE BASICALLY WE HAVE FOUR
25 ALTERNATE JURORS, YOU KNOW, NOBODY ON THE JURY KNOWS WHO THE
3977
1 ALTERNATE JUROR IS, BUT WE HAVE FOUR ALTERNATE JUROR AND
2 WITH A SIX-WEEK TRIAL, WE'VE BEEN VERY FORTUNATE UP TO THIS
3 POINT TO NOT HAVE ANY PROBLEMS. SO DO YOU HAVE ANY OTHER
4 SUGGESTION OTHER THAN WE JUST GO WITH THE 11 BECAUSE RIGHT
5 NOW -- HE COMPLAINED -- HE WAS SICK YESTERDAY APPARENTLY AND
6 THEN LAST NIGHT THEY RUSHED HIM TO THE HOSPITAL.
7 MR. WILSON: I WOULD HAVE NO OBJECTION, YOUR HONOR.
8 MR. STIRBA: I THINK THAT'S THE WAY WE NEED TO GO.
9 THE COURT: OKAY. IS EVERYBODY READY TO GO THEN?
10 OKAY. THEN DO YOU WANT ME -- WHAT DO YOU WANT ME TO EXPLAIN
11 TO THE JURY WHEN WE COME BACK? JUST SAY THAT WE'LL EXPLAIN
12 THAT TO THEM. I DON'T THINK THEY KNOW.
13 MR. STIRBA: I THINK YOU OUGHT TO JUST INDICATE
14 THAT THERE'S AN ILLNESS AND WE'RE GOING TO PROCEED.
15 THE COURT: IS THAT ALL RIGHT WITH EVERYONE?
16 MR. WILSON: THAT'S FINE WITH THE STATE, YOUR
17 HONOR.
18 THE COURT: OKAY. PLEASE STAND.
19 (WHEREUPON THE JURY ENTERED THE COURTROOM.)
20 THE COURT: PLEASE BE SEATED. THE RECORD WILL
21 REFLECT THAT THE ATTORNEYS AND THE DEFENDANT ARE PRESENT,
22 AND THE 11 MEMBERS OF THE JURY ARE PRESENT.
23 LADIES AND GENTLEMEN OF THE JURY, AS YOU CAN SEE OUR
24 JUROR NUMBER TEN WHO WAS SITS IN THE MIDDLE OF THE FRONT ROW
25 IS NOT HERE. HIS WIFE CALLED THIS MORNING AND LEFT A
3978
1 RECORDING, BUT I WASN'T AWARE OF THAT, I TALKED TO HER JUST
2 ABOUT TEN MINUTES AGO. AND JUROR NUMBER TEN, I DON'T KNOW
3 IF YOU WERE AWARE OF IT, BUT HE WAS NOT FEELING WELL
4 YESTERDAY AND LAST NIGHT THEY RUSHED HIM TO THE HOSPITAL AND
5 HE'S IN INTENSIVE CARE WITH CHEST PAINS. AND HIS WIFE IS
6 VERY SERIOUS, YOU KNOW, ABOUT THIS. WE DON'T KNOW -- SHE
7 DIDN'T SAY IF IT WAS A HEART ATTACK OR WHAT IT WAS BUT THEY
8 DON'T KNOW WHAT'S THE OUTCOME BUT HE'S IN THE LAKEVIEW
9 HOSPITAL I THINK AND HE'S TAKING ALL SORTS OF TESTS TODAY
10 AND WE DON'T KNOW WHAT THE PROBLEM IS.
11 OBVIOUSLY WE ALL ARE VERY CONCERNED AND I EXPRESSED
12 THAT TO HIS WIFE BUT SHE HAS NO IDEA ABOUT WHEN HE'LL BE
13 ABLE TO COME BACK OR WHAT HIS FUTURE IS. SO I'VE TALKED TO
14 THE ATTORNEYS AND THEY, IN LIGHT OF THE CIRCUMSTANCES, WANT
15 TO JUST PURSUE AHEAD WITH THE CASE. AND SO THIS WOULD MEAN
16 EVEN IF HE WERE TO RECOVER TOMORROW, HE WOULD NOT BE HERE
17 BECAUSE HE WOULD NOT HEAR WHAT WAS GOING ON TODAY. SO I
18 JUST WANTED YOU TO BE AWARE OF THAT AND WE'RE ALL VERY SORRY
19 ABOUT THIS BUT -- AND HOPE FOR THE BEST FOR HIM BUT THAT'S
20 WHAT WE'LL HAVE TO DO. SO I APPRECIATE YOU UNDERSTANDING
21 THAT AND YOUR PATIENCE, THAT'S WHY WE WERE LATE THIS
22 MORNING. OKAY. MR. WILSON, IF YOU WOULD LIKE TO CONTINUE.
23 MR. WILSON: THANK YOU, YOUR HONOR.
24 CONTINUED CROSS-EXAMINATION
25 Q. (BY MR. WILSON) DR. WEITZEL, I THINK WHEN WE LEFT OFF
3979
1 YESTERDAY WE WERE TALKING ABOUT MARY CRANE SO IF YOU WANT TO
2 PULL THE EXHIBIT OUT FOR MARY CRANE. I THINK YOU HAVE
3 PREVIOUSLY SEEN STATE'S EXHIBIT 36. HAVE YOU HAD AN
4 OPPORTUNITY -- DO YOU WANT TO STEP UP TO THE BOARD AND TAKE
5 A LOOK AT THAT?
6 A. I'VE SEEN IT.
7 Q. OKAY. I JUST WANTED TO GO THROUGH WITH YOU AND WHETHER
8 OR NOT YOU WANT TO REFER TO THE MEDICAL RECORDS IT'S UP TO
9 YOU, DOCTOR, BUT IT APPEARS THAT THE MEDICATIONS THAT WERE
10 PRESCRIBED TO HER STARTED OUT WITH SOME SERZONE, SOME
11 RISPERDAL, TRAZODONE AND THE DURAGESIC PATCH; IS THAT
12 CORRECT?
13 A. YES, SIR.
14 Q. AND AS WE PROGRESS THROUGH AND I THINK YOUR TESTIMONY
15 WAS THE DURAGESIC PATCH ACCORDING TO YOUR COMPUTATIONS
16 YESTERDAY WAS EQUIVALENT TO POSSIBLY 30 MILLIGRAMS OF
17 MORPHINE A DAY, INJECTABLE MORPHINE; IS THAT CORRECT?
18 A. I BELIEVE SO.
19 Q. OKAY. AS WE GO ALONG WE HAVE -- WELL, FIRST OF ALL,
20 TRAZODONE AND RISPERDAL AND SERZONE, AS I UNDERSTAND IT, ALL
21 HAVE CENTRAL NERVOUS SYSTEM DEPRESSANT QUALITIES; IS THAT
22 CORRECT?
23 A. YES, TO ONE DEGREE OR ANOTHER THEY DO.
24 Q. OKAY. SO WE'VE GOT SERZONE, RISPERDAL TRAZODONE ADDED
25 UPON ONE ANOTHER, RIGHT?
3980
1 A. RIGHT.
2 Q. ALONG WITH THE DURAGESIC PATCH; IS THAT CORRECT?
3 A. RIGHT.
4 Q. AS WE PROGRESS THROUGH, YOU CONTINUE TO PROVIDE THOSE
5 DRUGS AND ON THE 31ST OF DECEMBER WE ALSO ADD ATIVAN; IS
6 THAT CORRECT?
7 A. THAT'S CORRECT.
8 Q. AND ATIVAN, IS THAT A CENTRAL NERVOUS SYSTEM DEPRESSANT
9 QUALITY DRUG TOO?
10 A. YES. THAT WAS A P.R.N. THAT WAS GIVEN THAT DAY AND IT
11 IS, ALTHOUGH IT DOES NOT DEPRESS RESPIRATORY DRIVE, IT IS A
12 CENTRAL NERVOUS SYSTEM DEPRESSANT OF A SORT.
13 Q. OKAY. SO THOSE -- THAT -- THAT PARTICULAR DRUG WAS THEN
14 ADDED. THE NEXT TWO DAYS WE MAINTAIN A DOSAGE OF AGAIN
15 SERZONE, RISPERDAL AND TRAZODONE ALONG WITH THE DURAGESIC
16 PATCH; IS THAT CORRECT?
17 A. YES, SIR.
18 Q. OKAY. ON JANUARY 3RD, IN ADDITION TO THE DURAGESIC
19 PATCH AND THE OTHER DRUGS, WE ADD DEPAKENE AND WE ALSO HAVE
20 TWO SHOTS OF MORPHINE ADMINISTERED ON THAT DAY; IS THAT
21 CORRECT?
22 A. I BELIEVE SO. THAT WAS THE 31ST, DID YOU SAY?
23 Q. JANUARY 3RD.
24 A. OH, 3RD, OKAY.
25 Q. IT LOOKS LIKE ONE DOSE OF SERZONE WAS WITHHELD ON THAT
3981
1 PARTICULAR DATE ACCORDING TO THE CHART.
2 A. OKAY.
3 Q. DEPAKENE, IS THAT A CENTRAL NERVOUS SYSTEM DEPRESSANT
4 DRUG?
5 A. MILDLY, YES, IT IS.
6 Q. OBVIOUSLY THE MORPHINE HAS CENTRAL NERVOUS SYSTEM
7 QUALITIES, DOES IT NOT, DEPRESSIVE QUALITIES?
8 A. IT DOES.
9 Q. THE NEXT DAY ON JANUARY 4TH, THAT'S THE DAY THAT YOU
10 INCREASED THE DURAGESIC PATCH TO 75 MICROGRAMS, CORRECT?
11 A. YES.
12 Q. AND THERE'S DEPAKENE IS INCREASED TO 1,000 MILLIGRAMS
13 AND, AGAIN, WE HAVE THE ADMINISTRATION OF MORPHINE ON THAT
14 PARTICULAR DATE, CORRECT?
15 A. NO, SIR.
16 Q. YOU DON'T SHOW ANY MORPHINE ADMINISTERED ON JANUARY THE
17 4TH?
18 A. NO, SIR. THE DEPAKENE WAS 1,000 MILLIGRAMS ON THE 3RD.
19 IT WAS NOT INCREASED ON THE 4TH.
20 Q. SO THE DEPAKENE WAS ALSO 1,000 ON THE 3RD?
21 A. YES, SIR.
22 Q. AND IT REMAINED THE SAME ON THE 4TH?
23 A. YES, SIR. AND SHE DID GET SOME MORPHINE ON THE 4TH.
24 Q. SHE DID GET SOME MORPHINE ON THE 4TH?
25 A. YES, SIR.
3982
1 Q. NOW, ON THE 5TH IT APPEARS FROM THE CHART, WE'VE STILL
2 GOT THE 75 MICROGRAM DURAGESIC PATCH ON BOARD, CORRECT?
3 A. RIGHT.
4 Q. AGAIN, SHE'S ADMINISTERED DEPAKENE. IT APPEARS SHE'S
5 HAD THE TRAZODONE WITHHELD ON THAT DATE; IS THAT CORRECT?
6 A. THE 5TH, RIGHT? THE NURSE DID NOT PUT EITHER AN INITIAL
7 OR INITIALS AND CIRCLED ON THE TRAZODONE SO I HAVE TO ASSUME
8 THEY DIDN'T GIVE IT THAT DAY.
9 Q. OKAY. IN RESPECT TO THE MORPHINE, IS THAT ACCURATE AS
10 10 MILLIGRAMS OF MORPHINE THAT WAS ADMINISTERED ON THAT DAY?
11 A. ON THE 5TH, CORRECT?
12 Q. ON THE 5TH.
13 A. THIS MUST HAVE BEEN ALL PRN'S BECAUSE I DON'T SEE AN
14 EXTRA LIKE A NOW ORDER FOR THAT. LET ME GO BACK HERE TO MED
15 GRAPH AND LOOK AT IT FOR YOU. RIGHT, IT LOOKS LIKE -- I
16 JUST SHOW 5 MILLIGRAMS GIVEN THAT DAY HERE.
17 Q. ON THE 5TH?
18 A. YES, SIR. THAT'S ALL I'M ABLE TO FIND SO FAR -- OH,
19 WAIT. OKAY. OKAY HERE IS ANOTHER ONE THAT'S 10 MILLIGRAMS.
20 Q. SO THAT'S ACCURATE?
21 A. LOOKS LIKE IT.
22 Q. I FORGOT TO ASK YOU ONE QUESTION. WHEN YOU INCREASE THE
23 DURAGESIC PATCH, AS I UNDERSTAND IT, YOUR FORMULA FOR
24 EQUATING THAT TO MORPHINE SULFATE I.M. WAS ABOUT, OH, I
25 THINK IT WAS EQUATED TO 30 MILLIGRAMS FOR THE 50 MICROGRAM
3983
1 PATCH, SO THAT WOULD BE INCREASED BY 15 MILLIGRAMS, WOULD IT
2 NOT?
3 A. 45 TO THE 75.
4 Q. OKAY. 45 MILLIGRAMS FOR -- OF INJECTABLE MORPHINE FOR
5 THE 75 DURAGESIC PATCH. NOW, DO YOU RECALL READING THE
6 AUTOPSY IN THIS MATTER?
7 A. YES, I'VE READ IT. I DON'T RECALL THE WORDING.
8 Q. DO YOU RECALL THAT IN THE AUTOPSY REPORT THERE WAS A --
9 THERE WAS AN INDICATION THAT THE PATCHES WERE STILL INTACT
10 ON THE BODY OF MARY CRANE?
11 A. I DO.
12 Q. AND THERE WERE TWO PATCHES?
13 A. I DO REMEMBER THAT.
14 Q. SO I ASSUME ONE OF THOSE WAS A 25 MICROGRAM AND ONE WAS
15 A 50 MICROGRAM?
16 A. DO YOU? I REALLY DON'T KNOW.
17 Q. OKAY. BUT YOU, IN FACT, ORDERED 75 MICROGRAMS ON THE
18 DURAGESIC PATCH?
19 A. ON THE 4TH, YES, SIR.
20 Q. THE NEXT DAY IT APPEARS THAT NO MORPHINE WAS
21 ADMINISTERED, BUT, AGAIN, WE HAVE THE SERZONE, THE
22 RISPERDAL, THE 1,000 DEPAKENE AND THE TRAZODONE AND WE STILL
23 HAVE THE 75 MICROGRAM PATCH ON BOARD?
24 A. YES, SIR.
25 Q. IS THAT ACCURATE? AND ON JANUARY 7TH THE DAY THAT SHE
3984
1 DIED WE HAVE -- AGAIN, THIS WAS THE DATE I THINK THAT A NEW
2 75 MICROGRAM PATCH WAS ADMINISTERED TO THE PATIENT; IS THAT
3 CORRECT?
4 A. WELL, SINCE IT'S GIVEN EVERY THREE DAYS, IT SHOULD HAVE
5 BEEN.
6 Q. OKAY. IT LOOKS LIKE THE TRAZODONE WAS NOT ADMINISTERED
7 AND IT LOOKS LIKE THE DEPAKENE SAYS 250 TO 1,000 M.G. CAN
8 YOU TELL US FROM THE RECORDS HOW MUCH DEPAKENE WAS
9 ADMINISTERED ON THAT DAY?
10 A. ON THE 7TH?
11 Q. ON THE 7TH.
12 A. IT LOOKS LIKE ONLY 250.
13 Q. OKAY. DO YOU KNOW THE REASON IN THE NURSES' NOTES WHY
14 THE TRAZODONE AND SOME OF THOSE MEDICATIONS WERE HELD?
15 A. TRAZODONE WAS A H.S. MEDICATION, A BEDTIME MEDICATION,
16 AND ON THE 7TH I ASKED THAT THE MEDICATIONS OTHER THAN
17 MORPHINE BE HELD.
18 Q. NOW, THAT WAS THE DATE, WAS IT NOT, THAT YOU MADE THE
19 DETERMINATION THAT SHE WAS IN THE DYING PROCESS?
20 A. YES, SIR.
21 Q. THE NURSES' NOTES REFLECT A NUMBER OF THINGS THAT WERE
22 GOING ON DURING THAT TIME FRAME AND I JUST WANT TO TALK
23 ABOUT -- JUST WANT TO REFERENCE SOME OF THOSE TO YOU, IF I
24 CAN.
25 A. OKAY.
3985
1 Q. I'M GOING TO FOCUS IN ON SOME OF THE -- TURNING TO
2 MED-310 THIS IS DATED 12/30 OF '95 IN THE NURSES' NOTES.
3 THERE'S A NUMBER OF REFERENCES AND I'M JUST GOING TO READ A
4 COUPLE OF THOSE. FIRST OF ALL, AT THE TOP IT SAYS,
5 RESPIRATIONS AS THOUGH SNORING, HOWEVER EYES WIDE OPEN, DOES
6 NOT ANSWER QUESTIONS, NO VERBAL RESPONSES. THEN TURNING
7 OVER TO PAGE 311 IT'S NOTED DOWN AT THE BOTTOM LEFT-HAND
8 CORNER IN THE MIDDLE OF THE PAGE, THE EMOTIONS ARE LISTED AS
9 DROWSY, THE NEUROLOGICAL AS LETHARGIC. THERE'S A NOTE THAT
10 SAYS PATIENT VERY DROWSY, NOT ABLE TO STAY AWAKE AT 10:30 ON
11 THAT DATE; IS THAT CORRECT?
12 A. YES, SIR, THAT'S BONNIE HARDY'S NOTE.
13 Q. AGAIN, AS WE PROCEED ON THROUGH WHEN WE COME TO
14 JANUARY 1ST, THERE'S A NOTE DOWN IN THE BOTTOM THAT'S
15 CIRCLED NEUROLOGICAL, LETHARGIC. THIS IS ALSO THE DATE THAT
16 DR. DIENHART SEEN HER, ISN'T IT?
17 A. I'M SORRY, I DIDN'T GET -- WHERE IS THAT NOW ON THE 1ST?
18 Q. EXCUSE ME, PAGE 313.
19 A. AND WHERE WERE YOU REFERENCING?
20 Q. FIRST OF ALL, IN THE LEFT-HAND CORNER IT'S CIRCLED
21 LETHARGIC.
22 A. OH, GOTCHA.
23 Q. THAT'S CORRECT?
24 A. YES, SIR.
25 Q. WE ALSO HAVE A NOTE THAT IN THE MIDDLE OF THAT PAGE ON
3986
1 THE RIGHT-HAND SIDE FROM -- IT SAYS DR. DIENHART IN TO SEE
2 PATIENT, RECEIVED ORDERS FOR C.B.C. AND G.Y.N. CONSULT AND
3 THEN IT HAS AN ARROW DURAGESIC PATCH DECREASED TO
4 25 MICROGRAMS. YOU ARE AWARE THAT DR. DIENHART ORDERED A
5 DECREASE IN THE LEVEL OF THE DURAGESIC PATCH, ARE YOU NOT?
6 A. I AM, YES, SIR.
7 Q. YOU ARE ALSO AWARE THAT PURSUANT TO HIS NOTE THAT WAS
8 BECAUSE THE PATIENT APPEARED TO BE OVERLY SEDATED; IS THAT
9 CORRECT?
10 A. WELL, I DON'T KNOW THAT YOU COULD SAY IT WAS OVERLY
11 SEDATED. WHAT HE WROTE WAS, C.B.C. TODAY, DECREASE
12 DURAGESIC PATCH, PARENTHESIS INCREASED SEDATION NOTED.
13 Q. DUE TO INCREASED SEDATION?
14 A. HE WROTE --
15 Q. HE DID REFERENCE IT TO SEDATION, DID HE NOT?
16 A. RIGHT.
17 Q. OKAY. DO YOU UNDERSTAND THAT TO MEAN THAT WAS THE
18 REASON HE DECREASED OR ORDERED THE DECREASE IN THE PATCH?
19 A. I'M SURE THAT WAS HIS CONCERN.
20 Q. BUT YOU DIDN'T SHARE THAT CONCERN, DID YOU, DOCTOR?
21 A. NO, SIR, I DIDN'T.
22 Q. IN FACT, YOU INCREASED IT BACK TO THE 50 MICROGRAM
23 PATCH; IS THAT RIGHT?
24 A. THAT'S RIGHT.
25 Q. TURN NOW IF YOU WOULD TO -- WELL, I GUESS I BETTER
3987
1 FOLLOW THROUGH WITH SOME OF THESE OTHER NOTES. IT'S TRUE,
2 IS IT NOT, THAT AS WE GET CLOSER TO THE 7TH -- WELL, LET'S
3 TALK ABOUT THE 7TH.
4 TURN TO PAGE MED-0328.
5 A. OKAY.
6 Q. THE NOTE DOWN ON THE LEFT-HAND CORNER IS CIRCLED
7 LETHARGIC UNDER NEUROLOGICAL?
8 A. YES, IT IS.
9 Q. THERE'S ALSO A NOTE ON THE RIGHT-HAND SIDE THAT SAYS,
10 PATIENT HAS HAD NO EPISODE OF BEING COMBATIVE BECAUSE SHE
11 HAS BEEN LETHARGIC ALL SHIFT; IS THAT CORRECT?
12 A. IT IS.
13 Q. NOW THAT NOTE IS WRITTEN AT 1400, WHICH WOULD BE
14 2 O'CLOCK; IS THAT RIGHT?
15 A. THAT'S RIGHT.
16 Q. AND IT ALSO INDICATES ON THAT NOTE THAT, DR. DIENHART
17 NOTIFIED OF PATIENT'S STATUS AND HE SEEN THE PATIENT ON THAT
18 DATE, DID HE NOT?
19 A. YES, HE DID.
20 Q. NOW IF WE CAN, LET'S GO BACK, DOCTOR, TO THAT PARTICULAR
21 CONSULT ON THAT DATE IN THE PROGRESS NOTES WHICH WOULD BE
22 MED-00249.
23 A. OKAY.
24 Q. YOU PREVIOUSLY TESTIFIED, DID YOU NOT, THAT YOU WERE
25 MADE AWARE OF DR. DIENHART'S CONCERN AS REFERENCED IN THAT
3988
1 NOTE?
2 A. EXCUSE ME?
3 Q. YOU PREVIOUSLY TESTIFIED, DID YOU NOT, THAT YOU WERE
4 MADE AWARE OF DR. DIENHART'S CONCERN AS REFERENCED IN THAT
5 PARTICULAR NOTE?
6 A. DR. DIENHART AND I SPOKE THAT DAY.
7 Q. OKAY. DO YOU REMEMBER WHAT TIME YOU SPOKE THAT DAY?
8 A. NOT PRECISELY. SOMETIME THAT AFTERNOON.
9 Q. OKAY. ABOUT -- IT WAS IN THE AFTERNOON, IT WAS BEFORE
10 YOU SPOKE TO THE FAMILY MEMBERS; IS THAT CORRECT?
11 A. I BELIEVE SO.
12 Q. AND AS I RECALL IN YOUR DISCUSSIONS YOU TALKED ABOUT HIS
13 DETERMINATION THAT THIS COULD BE AGGRESSIVELY TREATED; IS
14 THAT CORRECT?
15 A. THAT'S WHAT DIENHART WRITES RIGHT HERE.
16 Q. OKAY. AND AS I RECALL YOUR TESTIMONY, YOU TOLD HIM THAT
17 BECAUSE OF THE ADVANCE DIRECTIVES, THERE WAS NO ABILITY TO
18 AGGRESSIVELY TREAT THIS PARTICULAR PATIENT IN THAT FASHION;
19 IS THAT CORRECT?
20 A. I'M NOT SURE I USED THOSE EXACT WORDS. OF COURSE, DR.
21 DIENHART WOULD HAVE BEEN AVAILABLE -- OR HE WOULD HAVE HAD
22 THIS CHART AVAILABLE AND WITH ALL THE SAME DIRECTIVES. I
23 THINK I --
24 Q. WAS THIS A PERSONAL CONVERSATION OR WAS IT OVER THE
25 PHONE?
3989
1 A. IT WAS PERSONAL, WE WERE SITTING AT THE NURSING STATION.
2 Q. AND DO YOU RECALL, DOCTOR, DID YOU NOT, IN FACT, TELL
3 HIM THAT THERE WAS NO ABILITY TO TREAT THIS PARTICULAR
4 PROBLEM?
5 A. GIVEN THE MEDICAL TREATMENT PLAN DIRECTIVES?
6 Q. THAT'S RIGHT.
7 A. YES, I THINK THAT'S WHAT I SAID.
8 Q. OKAY. NOW, THE TREATMENT THAT I UNDERSTAND THAT YOU
9 WERE LOOKING AT RELATED TO THIS POSSIBLE SEPSIS?
10 A. AND DEHYDRATION, HYPERTENSION, VOLUME DEPLETION, FREE
11 WATER DEPLETION.
12 Q. DEHYDRATION, VOLUME --
13 A. YES, SIR.
14 Q. SO SHE WAS -- ESSENTIALLY SHE WAS DEHYDRATED AND THAT
15 WAS --
16 A. LOOKS LIKE --
17 Q. THAT WAS AGGRAVATING I GUESS -- WOULD THAT BE
18 AGGRAVATING THE SEPSIS?
19 A. THEY WORK KIND TOGETHER, THEY WOULD AGGRAVATE EACH
20 OTHER.
21 Q. SO AN AGGRESSIVE TREATMENT WOULD ENTAIL, I ASSUME, SOME
22 HYDRATION THERAPY AS FAR AS GETTING SOME I.V.'S IN TO
23 HYDRATE THE PERSON; IS THAT CORRECT?
24 A. YES, SIR.
25 Q. AND IT WOULD ALSO NECESSITATE AN AGGRESSIVE TREATMENT
3990
1 PROCESS OF ANTIBIOTICS THROUGH AN I.V.; IS THAT CORRECT?
2 A. YOU WOULD ALMOST CERTAINLY NEED TO USE I.V. ANTIBIOTICS.
3 YOU COULD MAYBE USE I.M. LIKE ROCEPHIN. I'M NOT AN
4 INFECTIOUS DISEASE GUY, THOUGH, SO I PROBABLY SHOULDN'T GET
5 OFF ON THAT.
6 Q. BUT ANYWAY, IN YOUR OPINION THERE WAS NO THERE WAS NO
7 ABILITY TO TREAT THIS CONSIDERING THE ADVANCE DIRECTIVES?
8 A. IN MY OPINION SHE WAS REALLY, REALLY ILL AND WITHOUT AN
9 I.V. IT LOOKED LIKE SHE WAS -- THERE WAS NOTHING WE COULD
10 DO.
11 Q. NOW, THIS WAS -- THIS CONVERSATION YOU SAY TOOK PLACE IN
12 THE AFTERNOON. ON THAT VERY SAME PAGE YOU HAVE A NOTE HOLD
13 ALL ABOVE MED'S, MORPHINE S.O. FOUR 5 MILLIGRAMS I.M.,
14 WHICH -- AND DOES THAT MEAN IT'S -- THEN IT HAS Q 3. I
15 ASSUME THAT MEANS AROUND THE CLOCK EVERY THREE HOURS?
16 A. WELL, IT SAYS AROUND THE CLOCK. IT SAYS MORPHINE
17 SULPHATE 5 MILLIGRAMS I.M. NOW AND EVERY THREE HOURS AROUND
18 THE CLOCK.
19 Q. OKAY. NOW THAT NOTE BEARS A TIME OF 2100 HOURS?
20 A. IT WAS NOTED BY THE NURSE AT 2100. THE -- MY ORDER
21 DOESN'T BEAR A TIME. IT JUST HAS THE DATE.
22 Q. YOUR ORDER DOESN'T BEAR A TIME?
23 A. RIGHT.
24 Q. IS THAT SOMETHING THAT YOU FREQUENTLY DO, IS NOT PUT A
25 TIME ON YOUR ORDERS?
3991
1 A. FREQUENTLY?
2 Q. UH-HUH.
3 A. AT THIS --
4 Q. IN LOOKING THROUGH THESE RECORDS, DOCTOR, IS THAT A
5 PATTERN THAT -- OF YOUR NOTE?
6 A. IF YOU'LL LOOK AT THE ORDER RIGHT ABOVE THAT ONE, DR.
7 DIENHART'S ORDER, IN HIS HANDWRITTEN ORDER HE DIDN'T TIME
8 HIS EITHER. NOBODY DID.
9 Q. I NOTICE THAT OVER ON THE -- YES. OVER ON THE
10 RIGHT-HAND SIDE?
11 A. NO, ON THE LEFT.
12 Q. ON THE LEFT HAND OR ON THE RIGHT-HAND SIDE, THOUGH, HE
13 HAS TIMED THAT ORDER, HAS HE NOT?
14 A. THAT'S NOT AN ORDER, THAT'S HIS NOTE.
15 Q. EXCUSE ME. HE'S TIMED HIS PROGRESS NOTES WHEN HE MADE
16 THOSE OBSERVATIONS; IS THAT CORRECT?
17 A. IT LOOKS LIKE 3:10 P.M. I CAN'T REALLY -- HE'S HARD TO
18 READ BUT...
19 Q. SO THAT'S NOT IN YOUR HANDWRITING IN ANY EVENT ON THE
20 7TH AT 2100 HOURS; IS THAT CORRECT?
21 A. NO. THE 2100 HOURS OBVIOUSLY WAS EARLENE COZZENS
22 SIGNING OFF ON THAT.
23 Q. SO THAT JUST MEANS THAT EARLENE COZZENS NOTED IT AND
24 SIGNED OFF ON IT?
25 A. AT THAT TIME.
3992
1 Q. DO YOU KNOW WHEN THE FIRST MORPHINE WAS GIVEN ON THAT
2 PARTICULAR DATE?
3 A. I COULD LOOK IT UP. I DON'T HAVE IT.
4 Q. WOULD YOU DO SO, PLEASE.
5 A. OKAY. IT LOOKS LIKE 2000 HOURS, YEAH, ON THE 7TH.
6 Q. WHICH WOULD BE 8 O'CLOCK IN THE EVENING?
7 A. CORRECT.
8 Q. NOW, AGAIN, DOCTOR, DO YOU REMEMBER MEETING WITH THE
9 FAMILY ON THAT PARTICULAR DATE OR ANY FAMILY MEMBERS?
10 A. THE CRANE FAMILY.
11 Q. THAT'S CORRECT, ERIN BRINGHURST OR KATHY CHARLESWORTH?
12 A. MY NOTE SAYS, I HAVE SPOKEN TO HER TWO DAUGHTERS AND
13 THEY DO NOT WANT EXTRAORDINARY MEASURES TAKEN BUT WOULD
14 RATHER HAVE COMFORT CARE GIVEN.
15 Q. AND WHERE IS THAT NOTE?
16 A. IT'S MED-255, IT'S DATED SEVEN -- OR JANUARY 7TH, '96 IS
17 MY NOTE AT THE TOP OF THE PAGE.
18 Q. MED-255?
19 A. YES, SIR, IN PROGRESS RECORDS.
20 Q. DOES THAT BEAR A TIME?
21 A. NO, SIR.
22 Q. SO YOU DON'T KNOW WHAT TIME THAT WAS WRITTEN?
23 A. AT THIS TIME, I HAVE NO IDEA.
24 Q. IN FACT, LOOKING DOWN YOUR NOTES, DOCTOR, DO ANY OF
25 THOSE NOTES IN THE PROGRESS NOTES BEAR TIMES IN YOUR
3993
1 HANDWRITING?
2 A. VERY INFREQUENTLY. LIKE THE OTHER DAY I WAS TELLING YOU
3 ABOUT ENNIS ALLDREDGE'S TIMES REGARDING HIS GLUCOSE LEVELS.
4 BUT GENERALLY THEY DID NOT HAVE TIME, JUST A DATE.
5 Q. OKAY. IN RESPECT TO THE MEETING, DO YOU HAVE A DISTINCT
6 RECOLLECTION AS TO THE MEETING WITH KAREN BRINGHURST AND
7 KATHY CHARLESWORTH?
8 A. NO.
9 Q. YOU INDICATE IN YOUR NOTE THAT YOU DISCUSSED WITH THE
10 FAMILY AND YOU INDICATE THAT -- YOU'VE GOT PROBABLE
11 ASPIRATIONS PNEUMONIA, POSSIBLE SEPSIS AND VOLUME DEPLETION.
12 DO YOU REMEMBER --
13 A. ACTUALLY, SIR, IT SAYS PROBABLE ASPIRATIONS PNEUMONIA,
14 QUITE DEMENTED, HYPERTENSION, POSSIBLE SEPSIS, VOLUME
15 DEPLETION.
16 Q. SO YOU LISTED A NUMBER OF FACTORS THERE. BUT YOU HAVE
17 NO RECOLLECTION OF A CONVERSATION WITH KATHY -- OR WITH
18 KAREN BRINGHURST; IS THAT CORRECT?
19 A. AS I SIT HERE NOW, I CANNOT REMEMBER SPECIFICS OF A
20 CONVERSATION AT THAT DATE WITH THOSE PEOPLE.
21 Q. SO AS TO WHAT YOU TOLD THEM, YOU DON'T DISPUTE KAREN
22 BRINGHURST'S TESTIMONY THAT YOU TOLD HER THAT HER MOTHER WAS
23 DYING AND SHE ASKED YOU WHAT CAN BE DONE AND YOU TOLD HER WE
24 CAN GIVE HER MORPHINE TO HASTEN DEATH?
25 MR. STIRBA: I'M GOING TO OBJECT TO THE FORM OF THE
3994
1 QUESTION.
2 THE COURT: DO YOU WANT TO REPHRASE THAT?
3 Q. (BY MR. WILSON) YOU DON'T DISPUTE KAREN BRINGHURST
4 MAKING A STATEMENT TO YOU ON THAT DATE, DO YOU?
5 MR. STIRBA: SAME OBJECTION, YOUR HONOR.
6 THE COURT: YOU CAN ANSWER THAT QUESTION IF YOU
7 CAN.
8 MR. WILSON: PARDON?
9 THE COURT: HE CAN GO AHEAD AND ANSWER THAT
10 QUESTION.
11 THE WITNESS: THE LAST QUESTION WAS SO VAGUE AND
12 GENERAL, I CAN'T ANSWER IT.
13 Q. (BY MR. WILSON) WELL, DO YOU REMEMBER ANY CONVERSATION
14 WITH KAREN BRINGHURST ON THAT DAY?
15 A. AS TO THE SPECIFICS, NO.
16 Q. OKAY. YOU REMEMBER MEETING WITH THE FAMILY ONLY BECAUSE
17 YOU REFLECT THAT FROM YOUR NOTES; IS THAT RIGHT?
18 A. RIGHT.
19 Q. OKAY. I WANT TO YOU TURN TO THE MEDICAL/LEGAL SECTION
20 AND LET'S LOOK AT THE DIRECTIVE, IT'S ON PAGE MED-00341. I
21 THINK YOU'VE PREVIOUSLY TESTIFIED THAT EARLENE COZZENS
22 FILLED THAT OUT?
23 A. THIS IS A DIFFERENT ONE. I DID NOT TESTIFY THAT EARLENE
24 COZZENS FILLED THIS OUT.
25 Q. OH, EXCUSE ME, THAT'S ON THE LYDIA SMITH.
3995
1 DO YOU REMEMBER FILLING THIS ONE OUT?
2 A. WELL, MY SIGNATURE IS THERE SO I MUST HAVE SIGNED IT. I
3 DIDN'T FILL IT OUT, THOUGH.
4 Q. OKAY.
5 A. IT LOOKS LIKE --
6 Q. NOW THIS ONE WAS DATED 12/28, THE DATE OF ADMISSION,
7 RIGHT?
8 A. IT'S DATED 12/28 AT THE TOP, YES, SIR.
9 Q. AND THERE IS A FACILITY REPRESENTATIVE THAT HAS SIGNED
10 OFF DOWN BELOW; IS THAT CORRECT?
11 A. YES, SIR.
12 Q. AND DO YOU KNOW -- DO YOU RECOGNIZE THAT SIGNATURE?
13 A. I DO. THAT'S EARLENE COZZENS', I BELIEVE.
14 Q. OKAY. AND YOUR DATE ON YOUR AS ATTENDING PHYSICIAN IS
15 12/30 OF '95, CORRECT?
16 A. IT IS.
17 Q. SO YOU WOULD HAVE REVIEWED THIS DOCUMENT ON 12/30 OF
18 '95, CORRECT?
19 A. YES, SIR, ALMOST CERTAINLY.
20 Q. NOW, IN LOOKING AT THE DIRECTIVES THERE IS NO
21 PROHIBITION FOR GIVING ORAL ANTIBIOTICS, I.M. ANTIBIOTICS OR
22 I.V. ANTIBIOTICS, IS THERE?
23 A. YES, THERE IS.
24 Q. THERE IS A PROHIBITION AGAINST THAT?
25 A. YES, SIR.
3996
1 Q. WHERE DOES IT SAY THAT?
2 A. ON THE RIGHT-HAND COLUMN FOUR DOWN IT'S CHECKED "NO" TO
3 I.V. FLUIDS AND YOU CAN'T GIVE I.V. ANTIBIOTICS WITHOUT I.V.
4 FLUIDS.
5 Q. OKAY. DOCTOR, THERE'S A -- THERE'S ALSO A COLUMN THAT
6 SAYS I.V. ANTIBIOTICS "YES," ISN'T THERE?
7 A. THERE IS.
8 Q. SO THERE'S A DISCREPANCY BETWEEN THE TWO DIRECTIVES, IS
9 THAT RIGHT?
10 A. IT'S KIND OF AMBIGUOUS.
11 Q. KIND OF AMBIGUOUS. SO DON'T YOU THINK THAT'S SOMETHING
12 THAT YOU OUGHT TO BRING TO THE ATTENTION OF A FAMILY MEMBER
13 BEFORE MAKING A DETERMINATION TO WITHHOLD ALL OF THESE
14 MEDICAL PROCEDURES AND TREAT THE SEPSIS?
15 A. EXCUSE ME, KAREN BRINGHURST IS A NURSE, RIGHT?
16 Q. DOCTOR, JUST ANSWER MY QUESTION. DON'T YOU THINK THAT'S
17 SOMETHING YOU OUGHT TO DISCUSS WITH THE FAMILY?
18 A. WELL, YOU SEE, SIR, KAREN BRINGHURST --
19 Q. DOCTOR, WILL YOU ANSWER MY QUESTION?
20 A. -- SIGNED THIS SO I DON'T THINK I NEEDED TO.
21 Q. YOU DON'T THINK YOU NEEDED TO--
22 A. NO, SHE SIGNED IT HERSELF.
23 Q. SHE SIGNED --
24 MR. STIRBA: EXCUSE --
25 THE COURT: EXCUSE ME, JUST WAIT. DO YOU WANT TO
3997
1 ASK THE QUESTION, PAUSE, ONE ANSWER AND DON'T TALK OVER EACH
2 OTHER. GO AHEAD.
3 Q. (BY MR. WILSON) DID YOU KNOW SHE WAS A NURSE AT THE
4 TIME?
5 A. I PROBABLY DID.
6 Q. PROBABLY DID. YOU DON'T HAVE ANY INDEPENDENT
7 RECOLLECTION OF THAT, DO YOU, DOCTOR?
8 A. WELL, EVERYTHING IS SO CONFUSED BY THE FACT THAT I'VE
9 REVIEWED THESE RECORDS FOR ALMOST A YEAR NOW, I DON'T HAVE
10 ANY --
11 Q. YOU DON'T HAVE ANY INDEPENDENT RECOLLECTION OF EVEN
12 MEETING KAREN BRINGHURST BEFORE THIS TIME, DO YOU?
13 A. NO.
14 Q. IN FACT, DOCTOR, YOU PREVIOUSLY TESTIFIED IT'S IMPORTANT
15 TO OBTAIN HISTORY FROM THE FAMILY PARTICULARLY WITH PATIENTS
16 OF THIS NATURE; IS THAT CORRECT?
17 A. THAT'S CORRECT.
18 Q. DO YOU KNOW HOW MUCH TIME, IF ANY, YOU SPENT WITH KAREN
19 BRINGHURST OR HER FAMILY IN REGARDS TO MARY CRANE?
20 A. AT THIS DATE, I DON'T KNOW.
21 Q. OKAY. DO YOUR RECORDS INDICATE ANY OTHER MEETINGS WITH
22 THE FAMILY IN REGARDS TO THE TREATMENT OF MARY CRANE DURING
23 THIS TIME PERIOD?
24 A. THERE HAVE BEEN -- THERE ARE A LOT OF RECORDS HERE OF
25 DIFFERENT TEAM MEMBERS MEETING WITH THE FAMILY AND, OF
3998
1 COURSE, THEN THE TEAM MEMBERS RELATE WHAT HAPPENED TO ME. I
2 WOULD HAVE TO GO THROUGH EACH OF THESE NOTES TO SEE IF THERE
3 WERE ANY OTHER RECORDINGS OF ME MEETING WITH THE FAMILY.
4 Q. I'M TALKING ABOUT YOUR PERSONAL MEETING WITH THE FAMILY,
5 DOCTOR.
6 A. OKAY. WELL, THEN GIVE ME A MINUTE HERE AND LOOK
7 THROUGH.
8 Q. I TAKE IT YOU WOULD PROBABLY REFERENCE THAT IN YOUR
9 PROGRESS NOTES, WOULD YOU NOT?
10 A. I MAY SEE THE PATIENT'S FAMILY WITHOUT PUTTING IT IN THE
11 PROGRESS NOTES, BUT I'LL LOOK THROUGH HERE AND SEE IF IT'S
12 MENTIONED ANYWHERE IN THE PROGRESS NOTES.
13 Q. I SEE. IN ANY EVENT, YOU HAVE NO RECOLLECTION OF
14 DISCUSSING TREATMENT ALTERNATIVES WITH KAREN BRINGHURST ON
15 THE DAY OF THE 7TH OF JANUARY OF 1996?
16 A. I HAVE NO INDEPENDENT RECOLLECTION AT THIS TIME.
17 Q. ISN'T IT TRUE, DOCTOR, THAT AN INFECTIOUS DISEASE
18 PROCESS LIKE A SEPSIS THAT TIME IS OF THE ESSENCE?
19 A. YES, SIR.
20 Q. SO IF YOU ARE GOING TO BEGIN TREATMENT, IT NEEDS TO BE
21 DONE AS QUICKLY AS POSSIBLE; IS THAT CORRECT?
22 A. THAT WOULD BE HELPFUL.
23 Q. THE NOTE OF DR. DIENHART IS AT 3:10, IS IT YOUR
24 TESTIMONY THAT YOU MET WITH HIM APPROXIMATELY THAT SAME
25 TIME?
3999
1 A. WELL, YOU KNOW, HE WROTE HIS NOTE APPARENTLY AFTER HE
2 TALKED TO ME. THIS IS ON THE 7TH, CORRECT?
3 Q. UH-HUH.
4 A. HE SAYS AS TO SEE BY ME, HE WAS ASKED TO SEE A PATIENT
5 BY ME. AND THEN DOWN BELOW, DISCUSSED WITH DR. WEITZEL,
6 PATIENT TOLD -- FELT TO HAVE DECLINING STATUS IN WHICH NOT
7 HAVE CPR PERFORMED, ET CETERA. SO WE MUST -- WE MUST HAVE
8 TALKED BEFORE HE WROTE THE NOTE OR AS HE WAS WRITING THE
9 NOTE.
10 Q. AND YOUR RECOLLECTION WAS IT TOOK PLACE AT THE NURSES'
11 DESK AT THE GEROPSYCH UNIT?
12 A. I THINK, YEAH. I THINK I REMEMBER -- I DEFINITELY
13 REMEMBER WE HAD THIS DISCUSSION, YOU KNOW.
14 Q. AND THE FIRST ADMINISTRATION OF THE MORPHINE TAKES PLACE
15 AT 8 O'CLOCK THAT EVENING?
16 A. YES, SIR, OF THE NOW ORDERS THAT I THEN ORDERED.
17 Q. THAT'S CORRECT. AND SO SOMETIME BETWEEN FIVE -- OR
18 3 O'CLOCK AND 8 O'CLOCK IN THE EVENING, YOU HAD SOME MEETING
19 WITH THE FAMILY MEMBERS?
20 A. I BELIEVE SO.
21 Q. WOULD YOU TURN TO YOUR DISCHARGE SUMMARY PAGE 354, IF
22 YOU WOULD, PLEASE. AT THE TOP OF THE PAGE YOU INDICATE, I
23 TALKED TO HER GYNECOLOGIST -- SPEAKING OF MARY CRANE AND
24 THAT'S IN THERE, BUT THAT'S WHO WE'RE SPEAKING ABOUT --
25 DR. MEEKS AND HE FELT OKAY WITH NOT DOING SURGERY UNTIL
4000
1 AFTER PSYCHIATRIC CARE HAD BEEN COMPLETED AND FELT THAT A
2 LOW RESIDUE DIET AND BROAD-SPECTRUM ANTIBIOTICS WERE THE
3 BEST COURSE.
4 DO YOU RECALL THAT PARTICULAR CONVERSATION THAT YOU'VE
5 REFERENCED IN THE REPORT?
6 A. NO.
7 Q. YOU DON'T?
8 A. NO.
9 Q. YOU RECALL, I ASSUME, DICTATING THAT PARTICULAR REPORT?
10 A. WELL, NO. I SEE THAT I CERTAINLY DID BUT I DON'T RECALL
11 DOING IT. I DON'T -- I'VE DICTATED A LOT OF DISCHARGE
12 SUMMARIES.
13 Q. IS IT SAFE TO ASSUME, DOCTOR, THAT YOU WERE NOT TOO
14 CONCERNED ABOUT THIS VAGINAL FISTULA AT THE TIME WITH THAT
15 CONVERSATION?
16 A. NO, SIR, IT'S NOT.
17 Q. WELL, IF DR. MEEKS WAS TELLING YOU THAT WE COULD DELAY
18 THE SURGERY UNTIL AFTER THE PSYCHIATRIC CARE HAD BEEN
19 COMPLETED, WHAT DOES THAT MEAN IN TERMS OF -- DOES THAT MEAN
20 AFTER SHE'S DISCHARGED FROM THE INSTITUTION OR FROM THE
21 GEROPSYCH UNIT?
22 A. WELL, I CAN'T SPECULATE AS TO EXACTLY WHAT HE MEANS.
23 Q. OKAY. LET ME ASK YOU THIS: DOWN FURTHER IN THAT
24 PARTICULAR DISCHARGE SUMMARY, YOU ALSO INDICATE, ON THE 5TH,
25 I TALKED WITH DR. MEEKS WHO RECOMMENDED KEFLEX BE USED AS A
4001
1 BROAD-SPECTRUM ANTIBIOTIC, WE STARTED THAT AT 250 MILLIGRAMS
2 QID.
3 A. CORRECT.
4 Q. SO YOU START THE ANTIBIOTIC SOME TIME AFTER THE
5 CONVERSATION WHICH OCCURRED ON THE 3RD, IS THAT CORRECT,
6 WITH DR. MEEKS, THE FIRST CONVERSATION?
7 A. WELL, THE TOP CONVERSATION DOESN'T EXACTLY SAY WHEN WE
8 EVEN TALKED, SO I DON'T KNOW.
9 Q. OKAY. YOU WERE AWARE OF THE VAGINAL FISTULA ON THE 1ST,
10 WERE YOU NOT?
11 A. I THINK THAT'S WHEN IT WAS FIRST REPORTED.
12 Q. OKAY. AND YOU WERE AWARE THAT DR. MEEKS CAME IN AND DID
13 HIS CONSULT ON THE 2ND, WERE YOU NOT?
14 A. CORRECT.
15 Q. AND YOU DID NOT INITIATE ANY KIND OF ACTION TO TREAT THE
16 VAGINAL FISTULA UNTIL THE 5TH; IS THAT CORRECT?
17 A. NO, SIR, IT'S NOT.
18 Q. WHAT ACTION DID YOU INITIATE TO TREAT IT PRIOR TO THAT
19 TIME?
20 A. ON THE 3RD I ORDERED THE LOW FIBER OR LOW RESIDUE DIET
21 THAT HAD BEEN RECOMMENDED AND I WROTE A NOTE SAYING, PLEASE
22 HAVE DR. DIENHART MADE AWARE OF GYNECOLOGIST'S
23 RECOMMENDATIONS, GIVE HIM MY -- BEEPER NUMBER IS CROSSED
24 OUT. I GAVE THEM MY OFFICE NUMBER PHONE NUMBER SAYING HE
25 COULD CALL ME IF NECESSARY. AND I ALSO SPOKE WITH A NURSE
4002
1 AND SAID, HEY, WE GOT TO LET DR. DIENHART KNOW ABOUT THIS
2 RECOMMENDATION FOR ANTIBIOTICS AND, YOU KNOW, SEE WHAT HE
3 WANTS TO DO. HE WAS KIND OF MISSING IN ACTION THERE.
4 Q. I SEE. BUT WHAT YOU ARE SAYING TO ME IS THAT -- THIS IS
5 YOUR PATIENT, RIGHT?
6 A. I'M THE ATTENDING.
7 Q. YOU ARE THE ATTENDING PHYSICIAN AND YOU ADMINISTER PAIN
8 MEDICATIONS LIKE MORPHINE, CORRECT?
9 A. THAT'S TRUE.
10 Q. BUT YOU DIDN'T FEEL THAT YOU HAD THE QUALIFICATIONS TO
11 ADMINISTER A BROAD-SPECTRUM ANTIBIOTIC TO THIS WOMAN AT THAT
12 TIME?
13 A. WELL, GYNECOLOGY IS NOT MY SPECIALTY AT ALL. IT'S NOT A
14 SPECIALTY IN INTERNAL MEDICINE AND SO I FELT LIKE I SHOULD
15 GET THE GYNECOLOGIST AND THE INTERNIST WHO WOULD BE MUCH
16 MORE FAMILIAR WITH THIS SORT OF PROBLEM.
17 Q. WELL, YOU ALREADY HAD THE RECOMMENDATION OF DR. MEEKS,
18 DID YOU NOT?
19 A. FOR A BROAD-SPECTRUM ANTIBIOTIC.
20 Q. RIGHT.
21 A. I DIDN'T KNOW WHICH ONE THEY MIGHT WANT TO USE.
22 Q. SO IT MUST HAVE NOT BEEN SOMETHING THAT WAS SIGNIFICANT
23 IN YOUR MIND AT THE TIME IF YOU DELAYED UNTIL THE 5TH TO
24 ORDER ANY ANTIBIOTICS; ISN'T THAT CORRECT?
25 A. NO, SIR.
4003
1 Q. DOCTOR, DO YOU FEEL THAT THE COMBINATION OF THE
2 PSYCHOTROPIC MEDICATIONS ALONG WITH THE DURAGESIC PATCH AND
3 THE ADMINISTRATION OF THE MORPHINE IN CONNECTION WITH THE
4 TREATMENT THAT WAS GIVEN MARY CRANE CAUSED THE DEATH OF MARY
5 CRANE?
6 A. I DON'T SEE HOW IN ANY WAY THESE MEDICATIONS COULD HAVE
7 CAUSED SEPSIS, NO, SIR, I DO NOT.
8 Q. DO YOU FEEL THAT THESE COMBINATIONS PUT THE PATIENT AT
9 RISK OF DEATH?
10 A. SIR, TAKING AN ASPIRIN PUTS YOU AT RISK OF DEATH.
11 Q. I WANT KNOW, DOCTOR, IN YOUR OPINION, DO YOU FEEL THAT
12 THESE COMBINATIONS PUT MARY CRANE AT A RISK OF DEATH?
13 A. A VERY SLIGHT RISK OF DEATH, YES.
14 Q. DO YOU FEEL THAT THESE COMBINATIONS IN ANY WAY
15 CONTRIBUTED TO HER DEATH?
16 A. NO, SIR.
17 Q. LET'S TALK ABOUT LYDIA SMITH. AGAIN, I CALL YOUR
18 ATTENTION TO STATE'S EXHIBIT 37. WHY DON'T YOU STEP UP AND
19 TAKE A LOOK AT THAT EXHIBIT, PLEASE.
20 A. I'M FAMILIAR WITH IT. I CAN SEE IT FROM HERE.
21 Q. OKAY. I WOULD, AGAIN, LIKE TO JUST SORT OF GO THROUGH
22 WITH YOU THE REGIMEN OF MEDICATIONS THAT WERE ORDERED FOR
23 LYDIA SMITH. WE START OUT ON THE 30TH WITH WHAT'S A HALF
24 DOSE OF ATIVAN OR RECOMMENDED DOSAGE OF ATIVAN AND SERZONE
25 AND A HALF DOSE OF RISPERDAL; IS THAT CORRECT?
4004
1 A. WELL, YOU -- I WOULD HAVE TO DISAGREE WITH THESE AS
2 RECOMMENDED DOSAGES BECAUSE THEY ARE THE LOW END OF THE
3 INITIAL STARTING DOSAGES AND THAT WAS TAKEN FROM A BOOK
4 WHICH IS BASICALLY GUIDELINES FOR MEDICATION, BUT YOU KNOW.
5 Q. OKAY. LET'S IGNORE THE DOSAGE RATES RIGHT NOW.
6 A. OKAY.
7 Q. BUT IN TERMS OF -- FOR PURPOSES OF THIS TESTIMONY I WANT
8 TO KNOW, WERE THESE THE DRUGS THAT WERE ORDERED,
9 ADMINISTERED TO LYDIA SMITH ON THE FIRST DATE OF HER
10 ADMISSION?
11 A. YES, SIR.
12 Q. OKAY. NOW, WE SEE OVER THE NEXT FOUR DAYS THOSE SAME
13 DRUGS AS ORDERED, IS THAT CORRECT, RISPERDAL, SERZONE AND
14 ATIVAN?
15 A. YES, SIR.
16 Q. OKAY.
17 A. YES, SIR.
18 Q. ALL OF THOSE, AGAIN, HAVE CENTRAL NERVOUS SYSTEM
19 DEPRESSANT QUALITIES?
20 A. TO VARYING DEGREES THEY DO.
21 Q. AND AS YOU'VE PREVIOUSLY TESTIFIED, THEY WOULD HAVE
22 ADDITIVE EFFECTS?
23 A. YES, SIR.
24 Q. NOW, IT APPEARS THAT ON THE 24TH DAY OF DECEMBER THAT WE
25 HAVE AN ORDER FOR TRAZODONE BUT IT WAS NOT GIVEN?
4005
1 A. IT LOOKS LIKE IT.
2 Q. AND WE STILL HAVE SERZONE AND RISPERDAL?
3 A. AND ATIVAN.
4 Q. AND ATIVAN. ON THE 25TH DAY OF DECEMBER IT APPEARS THAT
5 THE ATIVAN IS INCREASED AND THE ONLY THING GIVEN ON THE 25TH
6 IS HALDOL AND ATIVAN; IS THAT CORRECT?
7 A. I DON'T KNOW WHAT YOU MEAN BY INCREASED. THERE WAS MORE
8 GIVEN THAT DAY, IT MAY HAVE BEEN A P.R.N. SO I WANT TO SAY
9 THAT IN TERMS OF AN HOUR OR A ROUTINE ORDER, I CAN'T TELL
10 YOU WITHOUT LOOKING AT THE --
11 Q. OKAY. BUT THOSE WERE THE ONLY DRUGS APPARENTLY THAT
12 WERE ADMINISTERED ON THAT DAY, CORRECT?
13 A. CORRECT, YES, SIR.
14 Q. NOW, THE NEXT DAY WE DO ADD TRAZODONE TO THE REGIMEN
15 WHICH IS ALSO A CENTRAL NERVOUS SYSTEM DEPRESSANT, CORRECT?
16 A. SHE FINALLY STARTED GETTING THAT ADMINISTERED.
17 Q. IN ADDITION TO HALDOL ON THE 27TH, WE HAVE TRAZODONE,
18 SERZONE, HALDOL, AND RISPERDAL, RIGHT?
19 A. AND IT LOOKS LIKE YOU DON'T HAVE ATIVAN THAT DAY SO
20 THAT'S KIND OF WHY I WAS THINKING IT WAS PROBABLY P.R.N. SHE
21 WAS GETTING BEFORE.
22 Q. OKAY. THEN WE GO ALONG HERE AND WE CONTINUE TO HAVE
23 SOME MEDICATIONS WITHHELD BUT WE HAVE ESSENTIALLY THE SAME,
24 RISPERDAL, HALDOL AND SERZONE. AND THEN WE GET TO THE 29TH
25 AND WE HAVE A NEW DRUG THAT'S ADDED TO THE 29TH; IS THAT
4006
1 CORRECT?
2 A. ONCE AGAIN, DEPAKENE.
3 Q. OKAY. AND DOES DEPAKENE ALSO HAVE CENTRAL NERVOUS
4 SYSTEM DEPRESSANT QUALITIES?
5 A. IT CAN.
6 Q. OKAY. AND WE GO ALONG, WE'VE GOT DEPAKENE, TRAZODONE,
7 SERZONE, RISPERDAL FOR THE 30TH AND THE 31ST, WE ADD HALDOL
8 BACK IN AND WE CONTINUE THAT PATTERN, BUT IT SEEMS LIKE THE
9 DOSAGES ADMINISTERED ARE GETTING INCREASING, WOULD THAT BE
10 AN ACCURATE REFLECTION OF YOUR RECOLLECTION OF THE RECORDS?
11 A. NO, SIR. ACTUALLY, I THINK THAT'S AN ARTIFACT BASED
12 UPON THE WAY YOU'VE MADE THIS CHART.
13 Q. OKAY. SO YOU DON'T THINK THESE DOSAGES THAT ARE BEING
14 ADMINISTERED ARE INCREASING?
15 A. NO. BECAUSE SHE'S MISSING SO MANY I THINK IT'S PROBABLY
16 STAYING FAIRLY, FAIRLY STABLE FROM STARTING AROUND THE 24TH
17 OR SO.
18 Q. SUFFICE IT TO SAY, DOCTOR, WE CONTINUE WITH THIS REGIMEN
19 OF ATIVAN, DEPAKENE, TRAZODONE, SERZONE HALDOL AND
20 RISPERDAL; IS THAT CORRECT?
21 A. YES, SIR.
22 Q. YOU DISAGREE WITH MAYBE THAT THE DOSAGE AMOUNTS ARE NOT
23 INCREASING, IS THAT RIGHT, BECAUSE OF THE CHART?
24 A. THE ADMINISTRATION AMOUNTS?
25 Q. YES, THE AMOUNTS ADMINISTERED TO HER.
4007
1 A. WHAT SHE WAS ACTUALLY GETTING UNFORTUNATELY --
2 Q. THE QUESTION WAS: DO YOU DISAGREE, THEN, THAT THEY ARE
3 NOT INCREASING?
4 A. DISAGREE THAT THEY ARE NOT? I GUESS I AGREE THAT THE
5 AMOUNTS --
6 Q. DO YOU AGREE OR NOT?
7 MR. STIRBA: YOUR HONOR, I WOULD --
8 THE COURT: EXCUSE ME. I THINK YOU NEED TO LET HIM
9 ANSWER THE QUESTION.
10 MR. WILSON: OKAY. I'M SORRY.
11 THE WITNESS: I WOULD AGREE THAT WHAT'S ORDERED IS
12 SLOWLY INCREASING AND WHAT SHE'S ACTUALLY GETTING ON THE
13 AVERAGE IS PRETTY MUCH STAYING STABLE, ESPECIALLY WHEN YOU
14 LOOK AT WHAT WAS ACTUALLY GIVEN IN TERMS OF, WELL, MY
15 MEDICAL JUDGEMENT AS TO WHAT I SHOULD GIVE TO COMBAT THE
16 SYMPTOMS SHE WAS HAVING AND NOT THIS SORT OF ARTIFICIAL
17 REPRESENTATION OF WHAT SHE WAS GETTING.
18 Q. (BY MR. WILSON) DOCTOR, IF I CHARACTERIZED LYDIA
19 SMITH'S RECORDS AS THAT SHE SEEMED TO BE GOING ALONG AND SHE
20 WAS QUITE AGITATED MOST OF THE TIME, WOULD BITE AND KICK AND
21 CAUSE DISRUPTIVE BEHAVIOR WHILE AT THE GEROPSYCH UNIT FOR A
22 SUBSTANTIAL PERIOD OF THAT TIME, WOULD THAT BE AN ACCURATE
23 STATEMENT?
24 A. YES, IT WOULD.
25 Q. AND SO AS I RECALL YOUR TESTIMONY YESTERDAY, YOU WERE
4008
1 ATTEMPTING TO BRING THAT BEHAVIOR UNDER CONTROL; IS THAT
2 CORRECT?
3 A. THAT'S CORRECT, YES, SIR.
4 Q. BECAUSE YOU WERE CONCERNED AT THE TIME THAT IF YOU
5 DIDN'T BRING IT UNDER CONTROL SHE WOULDN'T BE ABLE TO BE
6 ADMITTED BACK TO THE ROCKY MOUNTAIN CARE CENTER IN
7 BOUNTIFUL, UTAH; IS THAT CORRECT?
8 A. DURING THE FIRST PART OF THE HOSPITALIZATION I WAS JUST
9 TRYING TO TREAT HER AND THEN TOWARD THE END THE FAMILY WAS
10 REPEATEDLY SAYING, YOU KNOW, WE'VE GOT THIS POSSIBLE
11 PLACEMENT BUT IF HER BEHAVIOR IS NOT IMPROVED, THEY SIMPLY
12 WON'T TAKE HER.
13 Q. ISN'T IT TRUE, DOCTOR, THAT YOU, IN FACT, INCREASED THE
14 DOSAGES OF THOSE LISTED MEDICATIONS TOWARDS THE END -- OR I
15 SHOULD SAY TOWARDS THE BEGINNING OF JANUARY IN ORDER TO
16 ACCOMPLISH THAT VERY PURPOSE?
17 A. I DON'T THINK I NEED TO LOOK FOR THAT. YES, YOU ARE
18 RIGHT.
19 Q. NOW, ON JANUARY THE 5TH -- EXCUSE ME, JANUARY THE 3RD,
20 MED-0793. AT THE TOP OF THE PAGE --
21 A. WHAT'S IT UNDER, NURSES' NOTES?
22 Q. NURSING NOTES, EXCUSE ME.
23 A. OKAY. GOT IT.
24 Q. PATIENT VERY DROWSY, DID NOT EAT DINNER, PATIENT
25 LETHARGIC STATE, STAFF HAD TO SUPPORT FOR A TIME AMBULATE --
4009
1 IS IT AMBULATION?
2 A. YES, SIR, FOR -- YES, SIR, AMBULATION TRANSACTION.
3 Q. SO THERE'S ALSO DOWN IN THE CORNER A NOTE THAT SHE
4 APPEARS -- NEUROLOGICALLY, UNDER THAT HEADING, LETHARGIC.
5 AGAIN ON THE 4TH WE HAVE --
6 A. WOULD THAT BE THE NEXT PAGE?
7 Q. YES, EXCUSE ME. MED-0794 IN THE MIDDLE OF THE PAGE,
8 PATIENT HAS BEEN LETHARGIC DURING THE SHIFT, PATIENT HAS
9 BEEN NONRESPONSIVE TO STAFF, HAS BEEN SLEEPING ALL SHIFT.
10 DOWN FURTHER SAYS, PATIENT WOULD NOT AROUSE FOR MEALS,
11 PATIENT ATTENDED GROUP BUT SLEPT THROUGH GROUP, CORRECT?
12 A. THAT'S WHAT IT SAYS THERE. ON THE SAME PAGE IT ALSO
13 SAYS PATIENT RESTLESS, TOSSING AND TURNING, STRIKING OUT,
14 KICKING.
15 Q. IN RESPECT TO THE NEXT NOTE ON THE 7TH?
16 A. THE NEXT NOTE?
17 Q. WELL, EXCUSE ME, MED-00800. IN THE MIDDLE OF THE PAGE,
18 PATIENT NOT ABLE TO TAKE MEDS, PATIENT LETHARGIC AND
19 UNRESPONSIVE, PATIENT NOT SWALLOWING OR RESPONDING TO STAFF;
20 IS THAT CORRECT?
21 A. THAT'S WHAT IT SAYS.
22 Q. AND THEN WE FOLLOW THROUGH TO THE 7TH AT 2200 HOURS ON
23 THE NEXT PAGE 801. PATIENT NOT ABLE TO TAKE ANY MEDS,
24 UNRESPONSIVE MOST OF THE SHIFT, FAMILY AND DOCTOR NOTIFIED
25 OF PATIENT'S CONDITION, FAMILY AND DOCTOR IN TO SEE PATIENT,
4010
1 RESPIRATIONS SHALLOW, COMFORT MEASURES.
2 NOW, THAT WAS NIGHT OF THE MEETING WITH THE SMITH
3 FAMILY, WASN'T IT?
4 A. I'LL HAVE TO LOOK IT UP AND -- IT'S BEEN A LONG TIME.
5 FAMILY DISCUSSION WITH TWO SONS AND DAUGHTER REVEALS THAT
6 THEY DON'T WANT HER LIFE PROLONGED, THEY ARE READY TO LET
7 HER GO. AT TIMES SHE THRASHES ABOUT, SEEMS TO BE IN PAIN.
8 Q. OKAY. IT --
9 A. THAT'S MY NOTE ON THE 7TH.
10 Q. THAT'S YOUR NOTE ON THE 7TH. DO YOU KNOW WHAT TIME THAT
11 NOTE WAS MADE?
12 A. I DON'T HAVE THE TIME.
13 Q. DO YOU HAVE ANY INDEPENDENT RECOLLECTION OF THE MEETING
14 WITH THE SMITH FAMILY?
15 A. NOT AT THIS TIME.
16 Q. SO YOU DON'T KNOW WHAT YOU TOLD THE SMITHS?
17 A. ONLY IN GENERAL TERMS WOULD I KNOW WHAT I TOLD THEM.
18 Q. NOW, YOU REFERENCE A NOTE -- IN YOUR NOTE YOU REFERENCE
19 THAT THIS PATIENT IS -- THRASHES ABOUT, SOME TO BE --
20 A. AT TIMES SHE THRASHES ABOUT, SEEMS TO BE IN PAIN.
21 Q. PAIN/ANXIETY?
22 A. PAIN SLASH ANXIETY.
23 Q. BUT YET YOU JUST -- WE JUST REFERRED TO THE NOTE BACK ON
24 801 OF THE NURSES' NOTE WHICH THEY INDICATE SHE WAS TOTALLY
25 UNRESPONSIVE AT THAT TIME, DID NOT TAKE MEDS --
4011
1 A. IT'S ODD THAT SHE WOULD SAY NOT TAKE MEDS BECAUSE I
2 ORDERED NO MEDICATIONS BY MOUTH. I DON'T KNOW WHERE SHE WAS
3 COMING FROM THERE.
4 Q. YOU WOULD WHAT?
5 A. WELL, ON THAT DAY I HAD ORDERED STOP, YOU KNOW,
6 DISCONTINUE ABOVE MEDICATIONS SO ALL HER OTHER MEDICATIONS
7 THAT YOU ARE TALKING ABOUT HERE --
8 Q. WERE DISCONTINUED ON THE 7TH?
9 A. -- WERE DISCONTINUED SO I DON'T KNOW --
10 Q. WHAT TIME ON THE 7TH, DOCTOR, DOES YOUR NOTE BEAR?
11 A. WELL, MY ORDER WE'LL HAVE TO SEE. IT WAS SIGNED OFF AT
12 2130 SO IT HAD TO HAVE BEEN BEFORE THAT. I CAN'T TELL OTHER
13 THAN THAT.
14 Q. THAT'S 9:30 IN THE EVENING -- OR NO, THAT'S -- YEAH,
15 THAT'S 9:30 IN THE EVENING?
16 A. YES, SIR.
17 Q. IT APPEARS FROM THE CHART THAT SHE DID RECEIVE SOME
18 MEDICATIONS OF DEPAKENE, TRAZODONE, SERZONE AND RISPERDAL?
19 A. THOSE WOULD HAVE BEEN HER MORNING MEDICATIONS.
20 Q. SO THOSE WERE GIVEN TO HER IN THE MORNING BUT AS SHE
21 PROGRESSED THROUGH THE DAY, ACCORDING TO THE NOTES, SHE WAS
22 NOT ABLE TO EAT OR TO TAKE MEDS, CORRECT?
23 A. I HAVEN'T REVIEWED THE FIRST PART OF THE DAY SO LET ME
24 HAVE A LOOK THERE.
25 Q. WHEN WAS IT, DOCTOR, THAT YOU DETERMINED THAT THIS
4012
1 PATIENT WAS IN THE DYING PROCESS?
2 A. I THINK IT WOULD HAVE BEEN ON THE 7TH.
3 Q. DO YOU REMEMBER WHAT TIME ON THE 7TH?
4 A. NOT PRECISELY.
5 Q. I TAKE IT YOUR NOTES DON'T REFLECT ANY TIMES; IS THAT
6 CORRECT?
7 A. WELL, I KNOW THAT THE PROGRESS NOTE DOESN'T AND THE
8 DOCTOR'S ORDER SHOWS THAT IT WAS DONE BEFORE 9:30 BUT THAT'S
9 ALL I CAN REALLY TELL YOU. SOMETIMES THE NURSES IF THEY
10 WERE REALLY BUSY MIGHT TAKE SOME TIME TO TAKE THE ORDER OFF
11 SO IT MAKES IT PRETTY VARIABLE.
12 Q. AS I RECALL YOUR TESTIMONY, YOU ALSO MET WITH THE CRANE
13 FAMILY ON THE 7TH; IS THAT CORRECT?
14 A. YES, SIR, I BELIEVE IT IS.
15 Q. AND THEN YOU MEET WITH THE SMITH FAMILY ON THE 7TH; IS
16 THAT CORRECT?
17 A. I THINK SO. I DON'T HAVE AN INDEPENDENT RECOLLECTION.
18 IT'S SOMEWHAT POSSIBLE IT COULD HAVE BEEN OVER THE PHONE BUT
19 I THINK WE MET IN PERSON.
20 Q. WELL, YOU TESTIFIED YESTERDAY THAT YOU RECALL NEVER
21 HAVING MADE A STATEMENT IN THE PRESENCE OF THE SMITH FAMILY
22 ABOUT LYDIA SMITH BEING AN OLD, CRABBY LADY, DIDN'T YOU?
23 A. WHAT I DID TESTIFY TO IS THAT I WOULD NEVER SAY
24 SOMETHING LIKE THAT, I'M SURE I NEVER SAID IT. I DO NOT
25 RECALL NOT HAVING SAID IT.
4013
1 Q. SO YOUR TESTIMONY YESTERDAY WAS THAT YOU JUST DIDN'T
2 MAKE THAT KIND OF A STATEMENT?
3 A. MY TESTIMONY AS I REMEMBER WAS I CALLED IN THE FAMILY
4 FOR THE MEETING AND I WOULD NEVER SAY ANYTHING LIKE THAT.
5 Q. OKAY.
6 A. SO I GUESS THAT MEANS WE MET.
7 Q. DOCTOR, DID YOU SEEK THE ADVICE OF ANY CONSULTING
8 PHYSICIAN ON THE CONDITION OF LYDIA SMITH?
9 A. I DON'T RECALL HAVING DONE SO.
10 Q. PARDON?
11 A. I DON'T RECALL HAVING DONE SO.
12 Q. DID YOU THINK IT WAS IMPORTANT TO TRY AND ASCERTAIN JUST
13 EXACTLY WHAT THIS INDIVIDUAL WAS DYING FROM?
14 A. IT WAS PRETTY APPARENT THAT SHE HAD NO URINE OUTPUT, SHE
15 LOST MUCH WEIGHT BEFORE THE HOSPITALIZATION, EIGHT POUNDS
16 JUST IN THE TIME SHE WAS THERE, WE HAD MULTIPLE --
17 Q. I GUESS MY QUESTION WAS: DID YOU THINK IT WAS IMPORTANT
18 TO FIND OUT EXACTLY WHAT THIS LADY WAS DYING FROM?
19 A. THERE'S SOME IMPORTANCE THERE, YES, SIR.
20 Q. NOW YOU'VE PREVIOUSLY TESTIFIED YOU ARE NOT SPECIALIZED
21 IN INTERNAL MEDICINE; IS THAT CORRECT?
22 A. THAT IS. I JUST HAVE SOME BASELINE WORK THERE, YOU
23 KNOW, YOU DO YOUR FIRST YEAR IN INTERNAL MEDICINE AND
24 SPECIALIZE IN PSYCHIATRY.
25 Q. YOU HAD PHYSICIANS ON CALL IN THE HOSPITAL SETTING TO
4014
1 CONSULT WITH, DID YOU NOT?
2 A. YES, SIR.
3 Q. BUT YOU CHOSE NOT TO HAVE A CONSULTING PHYSICIAN COME IN
4 AND REVIEW THE CONDITION OF LYDIA SMITH, CORRECT?
5 A. THAT'S TRUE.
6 Q. LET'S TURN TO THE MEDICAL/LEGAL SECTION MED-00811.
7 A. GOT IT.
8 Q. WHICH IS THE MEDICAL TREATMENT PLAN FOR -- SIGNED BY
9 KENT SMITH. DO YOU RECALL THAT DOCUMENT, DOCTOR?
10 A. I HAVE IT HERE IN FRONT OF ME.
11 Q. OKAY. IT BEARS YOUR SIGNATURE, DOESN'T IT?
12 A. YES, SIR.
13 Q. AND THAT SIGNATURE IS DATED 1/7 OF '96?
14 A. RIGHT.
15 Q. ALSO BEARS THE FACILITY REPRESENTATIVE'S SIGNATURE, DOES
16 IT NOT?
17 A. ONCE AGAIN, IT LOOKS LIKE EARLENE COZZENS.
18 Q. OKAY. I NOTE, DOCTOR, THAT THERE'S NO INDICATION IN THE
19 BLANK UNDERNEATH THE TOP AND THE TOP PARAGRAPH AS TO WHAT
20 DISEASE, CURRENT DISEASE OR ILLNESS THIS PATIENT IS
21 SUFFERING FROM; IS THAT CORRECT?
22 A. IT IS. IT'S NOT FILLED IN.
23 Q. I NOTE THAT THERE'S NO CHECK MARKS AS TO WHO THE
24 DECLARANT -- AS TO THE DECLARANT HAVING A PHYSICAL OR MENTAL
25 CONDITION WHICH RENDERS HIM OR HER UNABLE TO GIVE PERSONAL
4015
1 DIRECTION, CORRECT?
2 A. DOESN'T HAVE TO BE. IT SAYS "OR" THERE.
3 Q. BUT THERE'S NO CHECK MARK?
4 A. THAT'S CORRECT.
5 Q. THERE'S NO CHECK MARK AS TO WHETHER IT'S DIRECTED BY THE
6 DECLARANT OR NOT?
7 A. CORRECT.
8 Q. AND I ASSUME YOU HAVE NO RECOLLECTION OF MEETING WITH
9 KENT SMITH AT THE TIME THAT HE EXECUTED THIS DOCUMENT,
10 CORRECT?
11 A. NO, I DON'T REMEMBER. I MAY NOT HAVE BEEN THERE AT ALL
12 FOR THIS.
13 Q. YOU MAY NOT HAVE BEEN THERE AT ALL AT THE TIME THAT HE
14 EXECUTED THE DOCUMENT?
15 A. EARLENE COZZENS LOOKS TO HAVE FILLED IT OUT AND I SIGNED
16 OFF LATER.
17 Q. AGAIN, DOCTOR, YOU HAVE NO RECOLLECTION OF HAVING
18 DISCUSSED ANY OF THE ALTERNATIVES AVAILABLE FOR THE
19 TREATMENT OF LYDIA SMITH WITH THE FAMILY; IS THAT CORRECT?
20 A. I HAVE NO SPECIFIC RECOLLECTION. IT WAS MY PRACTICE TO
21 SAY, YOU KNOW, WE HAVE THE I.C.U., THE MEDICAL FLOOR DOWN
22 THE WAY BUT...
23 Q. YOU HAVE NO SPECIFIC RECOLLECTION, YOU ARE JUST GOING
24 OFF OF WHAT YOUR PRACTICE IS; IS THAT CORRECT?
25 A. RIGHT. AND THAT IS AS REFRESHED BY WHAT I CAN GLEAN
4016
1 FROM THESE RECORDS.
2 Q. ALL RIGHT. LET'S CALL YOUR ATTENTION TO THE FOLLOWING
3 DAY, THAT'S THE DAY THAT LYDIA SMITH DIED.
4 A. THE 8TH.
5 Q. THE 8TH. DO YOU RECALL MEETING BONNIE SMITH-WEIGHT IN
6 HER MOTHER'S ROOM ON THAT PARTICULAR DATE?
7 A. NO.
8 Q. AROUND NOON?
9 A. NO, SIR.
10 Q. DO YOU HAVE ANY RECOLLECTION OF HAVING A CONVERSATION
11 WITH BONNIE SMITH-WEIGHT ABOUT THE ADMINISTRATION OF
12 MORPHINE TO HER MOTHER?
13 A. NO, SIR.
14 Q. SO YOU DON'T RECALL ANY CONVERSATION AT ALL; IS THAT
15 CORRECT?
16 A. NO, SIR. WITH BONNIE SMITH-WEIGHT? NO.
17 Q. DO YOU KNOW WHEN THE LAST MORPHINE SHOT WAS ADMINISTERED
18 TO BONNIE -- EXCUSE ME, TO LYDIA SMITH?
19 A. NOT OFF THE TOP OF MY HEAD BUT I'LL LOOK IT UP. IT
20 LOOKS LIKE BEST I CAN TELL AT 12 NOON ON THE 8TH -- OR WAIT
21 A SECOND.
22 Q. WHAT TIME DID SHE DIE, DOCTOR?
23 A. IT LOOKS LIKE 12:45.
24 Q. 45 MINUTES AFTER THE LAST SHOT WAS ADMINISTERED?
25 A. I'M NOT SURE BECAUSE IT'S IN THE COLUMN FOR THE 7TH SO I
4017
1 DON'T KNOW WHEN -- I CAN'T REALLY TELL FROM THIS WHEN THE
2 LAST SHOT WAS GIVEN. I'LL HAVE TO GO TO THE NURSES' NOTES
3 AND SEE IF IT SAYS.
4 Q. ASSUMING IT WAS GIVEN AT 12 O'CLOCK, SHE DIED AT 12:45,
5 RIGHT?
6 A. SHE DID DIE AT 12:45 FROM WHAT IT SAYS HERE. ASSUMING
7 THAT IT WAS GIVEN AT 12, IT WOULD HAVE BEEN 45 MINUTES
8 LATER.
9 Q. CORRECT. LET ME ASK YOU THIS: IS THAT -- IS NOT THAT
10 CONSISTENT IN YOUR OPINION WITH DEATH AS A RESULT OF
11 MORPHINE BEING ADMINISTERED?
12 A. NO, SIR.
13 Q. SO YOU DON'T FEEL MORPHINE PLAYED ANY PART IN LYDIA
14 SMITH'S DEATH?
15 A. NO, SIR.
16 Q. YOU DON'T FEEL THAT THE COMBINATION OF THE CENTRAL
17 NERVOUS SYSTEM DEPRESSANTS THAT WERE GIVEN PRIOR TO THAT
18 TIME AND ALSO IN COMBINATION WITH THE MORPHINE CREATED ANY
19 GRAVE RISK OF DEATH?
20 A. NO, SIR. I WOULDN'T HAVE DONE THAT.
21 Q. AND I GUESS IT'S YOUR TESTIMONY THAT YOU DON'T BELIEVE
22 THOSE DRUGS IN ANY WAY CONTRIBUTED TO HER DEATH; IS THAT
23 CORRECT?
24 A. THAT'S CORRECT.
25 MR. WILSON: YOUR HONOR, DID YOU WANT TO TAKE A
4018
1 BREAK AT THIS TIME?
2 THE COURT: OKAY. LADIES AND GENTLEMEN, WE'VE BEEN
3 GOING FOR OVER AN HOUR, LET'S TAKE ONE OF OUR MORNING
4 BREAKS. DURING THIS TIME, REMEMBER IT IS YOUR DUTY NOT TO
5 CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW
6 YOURSELVES TO BE ADDRESSED WITH BY ANY PERSON ON ANY SUBJECT
7 OF THIS TRIAL. IT IS YOUR DUTY NOT TO FORM OR EXPRESS AN
8 OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO YOU. AND SO
9 LET'S COME BACK AT 25 TO TEN.
10 (A BRIEF RECESS WAS TAKEN.)
11 THE COURT: PLEASE BE SEATED. THE RECORD WILL
12 REFLECT THAT THE JURY HAS RETURNED, AND LADIES AND
13 GENTLEMEN, JUST TO CLOSE OUT ON JUROR NUMBER TEN, I SPOKE TO
14 THE HOSPITAL AND THEY INDICATED THAT JUROR NUMBER TEN IS
15 DOING THEY -- YOU KNOW, IT DOESN'T LOOK LIKE IT WAS A HEART
16 ATTACK BUT THEY SAY HE'S IN STABLE CONDITION, HE'S STILL
17 THERE. THEY DON'T KNOW HOW LONG HE'S GOING TO BE THERE.
18 THEY ARE DOING A LOT OF TESTS BUT THEY SAID HE'S NOT IN ANY
19 DANGER, SO I THINK THAT'S GOOD NEWS. AND SO WE'LL JUST
20 CONTINUE. OKAY. MR. WILSON?
21 MR. WILSON: THANK YOU, YOUR HONOR.
22 Q. (BY MR. WILSON) DOCTOR, I THINK WE CAN TURN NOW TO
23 ENNIS ALLDREDGE, IF YOU WOULD GRAB HIS BINDER. A COUPLE OF
24 QUESTIONS BEFORE WE ADDRESS THE EXHIBIT. YOU EVALUATED
25 ENNIS ALLDREDGE, DID YOU NOT?
4019
1 A. YES, SIR.
2 Q. AND THAT TOOK PLACE ON THE 10TH?
3 A. YES, SIR.
4 Q. OF JANUARY OF '96?
5 A. YES, SIR.
6 Q. AT THAT TIME AND I THINK YOU REFERENCED IN YOUR
7 TESTIMONY YESTERDAY THAT MR. ALLDREDGE WAS A VERY STRONG
8 MAN?
9 A. YES, SIR.
10 Q. AND THAT I THINK YOU EVEN INDICATED -- WENT SO FAR TO
11 INDICATE THAT SOME OF THE MEDICATIONS WERE GIVEN TO MR.
12 ALLDREDGE WERE FOR PURPOSES OF PROTECTING BOTH THE STAFF AND
13 MR. ALLDREDGE; IS THAT CORRECT?
14 A. NO. IT WAS FOR -- THE MEDICATIONS WERE FOR MR.
15 ALLDREDGE.
16 Q. WAS THERE A PURPOSE TO PROTECT THE STAFF WITH THOSE
17 MEDICATIONS, TOO?
18 A. EVERYONE. HE HAD RECENTLY BROKEN A LADY'S HIP BY
19 THROWING A WHEELCHAIR AND --
20 Q. SO I ASSUME THE EFFECT YOU ARE LOOKING FOR IN MR.
21 ALLDREDGE WAS TO CALM HIM DOWN AND MAYBE EVEN TO SEDATE HIM;
22 IS THAT CORRECT?
23 A. YES, SIR.
24 Q. DID YOU ARRIVE AT A DIAGNOSIS AND A TREATMENT PLAN FOR
25 MR. ALLDREDGE?
4020
1 A. YES, I DID.
2 Q. WHAT WAS THE DIAGNOSIS, DOCTOR?
3 A. PSYCHOSIS N.O.S.
4 Q. WHAT DOES THAT MEAN?
5 A. IT MEANS -- PSYCHOSIS MEANS OUT OF TOUCH WITH REALITY,
6 N.O.S. IS NOT OTHERWISE SPECIFIED.
7 Q. AND WHAT WAS THE -- YOU INDICATE IN MED-005, WE WILL
8 QUICKLY CONTROL HIS PSYCHOTIC BEHAVIOR WITH SOME I.M. HALDOL
9 AND ATIVAN, CORRECT?
10 A. YES, SIR.
11 Q. NOW, YOU INDICATE, HE HAS CURRENTLY RECEIVED THESE AND
12 IS DOING WELL. NOW, IF YOU'LL REFER TO THE CHART, HOW MUCH
13 ATIVAN WAS ENNIS ALLDREDGE ON AT THE TIME THAT HE WAS
14 ADMITTED TO THE UNIT, DO YOU REMEMBER?
15 A. YOU MEAN WHAT WAS HIS --
16 Q. WHAT WAS HIS DOSAGE AMOUNT?
17 A. WELL, IN THIS CHART IT SHOWS THAT HE WAS GIVEN TWO, 3
18 MILLIGRAM I.M. INJECTIONS AT LEAST RIGHT BEFORE ADMISSION.
19 Q. FROM THE CARE CENTER THAT HE CAME FROM, FROM THE
20 FACILITY?
21 A. YES, SIR. AS I REMEMBER HE -- YOU KNOW, THERE ARE
22 NURSES' NOTES FROM THAT FACILITY AND THE BEST I COULD TELL
23 HE HAD GOTTEN TWO SEPARATE 3 MILLIGRAM INJECTIONS PRETTY
24 MUCH RIGHT BEFORE. I DOUBT IT REALLY AFFECTED HIM THAT
25 MUCH.
4021
1 Q. NOW, YOU HAD THAT INFORMATION I ASSUME AT THE TIME THAT
2 YOU INITIALLY EVALUATED HIM; IS THAT CORRECT?
3 A. YES, SIR.
4 Q. IN LOOKING AT THE CHART AND IF YOU WOULD ALSO REFER TO
5 THE MEDICAL RECORDS, IT APPEARS THAT THERE WAS ATIVAN AND
6 HALDOL AND RISPERDAL GIVEN ON THOSE -- THAT PARTICULAR DATE;
7 IS THAT CORRECT?
8 A. IT IS. ON THE 10TH.
9 Q. THERE WAS ALSO SOME OTHER ITEMS THAT WERE ORDERED BUT
10 APPARENTLY WERE NOT ADMINISTERED; IS THAT ALSO CORRECT?
11 A. HE HAD TRAZODONE ORDERED FOR BEDTIME IT DOESN'T LOOK
12 LIKE HE GOT IT ON THE 10TH.
13 Q. DID YOU SEE WHEN YOU INITIALLY EVALUATED HIM THE TYPE OF
14 COMBATIVE BEHAVIOR THAT HAD BEEN REPORTED TO YOU?
15 A. YES, I DID.
16 Q. NOW, HE WAS IN A WHEELCHAIR AS I UNDERSTAND IT; IS THAT
17 ALSO CORRECT?
18 A. WELL, HE WAS GENERALLY MOVED AROUND BY WHEELCHAIR. HE
19 WAS ALWAYS TRYING TO GET OUT OF THE CHAIR, TRYING TO STAND
20 UP. EVERYONE WAS AFRAID HE WAS GOING TO FALL.
21 Q. IN YOUR EVALUATION YOU NOTE, I WAS NOT INFORMED THAT HE
22 IS NONAMBULATORY BEFORE THE ADMISSION. DID YOU HAVE A
23 CONCERN ABOUT THAT?
24 A. WELL, NOT A HUGE CONCERN BECAUSE WE HAD A LOT OF
25 PATIENTS THAT WERE IN WHEELCHAIRS.
4022
1 Q. I JUST WONDERED WHY YOU WOULD REFERENCE THAT IN YOUR
2 NOTE AS TO HIM BEING NONAMBULATORY BEFORE THE ADMISSION.
3 WAS THAT PART OF THE CRITERIA?
4 A. NO, IT WASN'T. YOU DIDN'T HAVE TO BE AMBULATORY FOR
5 ADMISSION.
6 Q. SO HE WAS ACCEPTED AND AS FAR AS YOU WERE CONCERNED, HE
7 WAS STABLE MEDICALLY, IS THAT CORRECT? PHYSICALLY, EXCUSE
8 ME.
9 A. IN AN ACUTE SENSE HE DIDN'T HAVE ANY LIFE THREATENING
10 ILLNESSES THAT WE COULD SEE WHEN HE ARRIVED.
11 Q. SO AT THAT TIME ANYWAY ON THE DAY OF ADMISSION, HE
12 DIDN'T HAVE ANY LIFE-THREATENING ILLNESSES?
13 A. NO, SIR, THAT'S NOT WHAT I SAID.
14 Q. NOW, THE SECOND DATE OF HIS ADMISSION, THE 11TH, AFTER
15 HIS ADMISSION, EXCUSE ME, HE'S GIVEN BUSPAR, RISPERDAL,
16 TRAZODONE AND ATIVAN; IS THAT CORRECT?
17 A. YES, SIR.
18 Q. IS BUSPAR A -- DOES IT HAVE CENTRAL NERVOUS SYSTEM
19 DEPRESSANT QUALITIES?
20 A. YES, SIR.
21 Q. AS WELL AS TRAZODONE AND SERZONE, CORRECT?
22 A. CORRECT.
23 Q. DID YOU MAKE ANY PARTICULAR NOTE IN YOUR RECORD ON THE
24 11TH AS TO HIS BEHAVIOR?
25 A. YES.
4023
1 Q. DID HIS BEHAVIOR, DOCTOR, IMPROVE FROM WHAT IT HAD BEEN
2 OR AT LEAST AS TO WHAT HAD BEEN REPORTED TO BE?
3 A. NOT REALLY.
4 Q. CALLING YOUR ATTENTION --
5 A. BY THE 11TH? I'M SORRY, IT'S KIND OF A GENERAL
6 QUESTION. I'M NOT SURE WHAT YOU MEAN EXACTLY.
7 Q. CALLING YOUR ATTENTION TO MED-0016 WHICH IS THE --
8 A. I HAVE IT.
9 Q. -- THE PROGRESS NOTES. THERE'S A NOTE IN THE MEDICAL
10 RECORD SIGNED BY AN S. BENNION, L.C.S.W. WHERE SHE NOTES:
11 INDIVIDUAL SESSION, ATTEMPTED TO ENGAGE PATIENT IN
12 CONVERSATION BUT PATIENT WAS SLEEPING AND UNRESPONSIVE. I
13 WILL ATTEMPT TO ENGAGE HIM AT A LATER DATE.
14 A. I SEE THAT.
15 Q. FURTHER ON DOWN ON THE 12TH IT INDICATES UNDER DIETARY
16 NOTE, PATIENT NOT EATING. AND THEN I THINK THE NEXT NOTE IS
17 YOUR NOTE ON THE 12TH, PATIENT QUITE DEMENTED, COMBATIVE,
18 MUMBLES INCOHERENTLY, CRIES OUT, WILL NOT TAKE ANY MEDS,
19 AFEBRILE PSYCHOSIS, N.O.S., CONTINUE CURRENT --
20 A. CARE.
21 Q. -- CARE AND THEN YOU'VE GOT INCREASE HALDOL; IS THAT
22 CORRECT?
23 A. YES, SIR.
24 Q. SO ON THE 12TH YOU GAVE HIM ADDITIONAL DOSAGES OF HALDOL
25 IN ADDITION TO THE ATIVAN; IS THAT CORRECT?
4024
1 A. I THINK WHAT HAPPENED IS THE AMOUNT OF THE P.R.N. WAS
2 INCREASED. RIGHT.
3 Q. WELL, DIDN'T YOU ORDER IT INCREASED, DOCTOR?
4 A. YES, SIR.
5 Q. WHEN WAS IT YOU FIRST BECAME AWARE OF A PROBLEM WITH
6 ENNIS ALLDREDGE OF A MEDICAL NATURE OTHER THAN WHAT YOU HAD
7 PREVIOUSLY OBSERVED?
8 A. THE 13TH I BECAME AWARE OF THE M.R.I.
9 Q. DO YOU KNOW WHEN THAT M.R.I. WAS CONDUCTED?
10 A. NOT SURE OF THE EXACT TIME. IT'S PROBABLY ON THE M.R.I.
11 DO YOU KNOW WHERE THAT IS? THESE ARE KIND OF OUT OF ORDER.
12 Q. DID YOU REVIEW THE M.R.I.?
13 A. AT SOME POINT I DID, YES.
14 Q. AND IN REVIEWING AN M.R.I., WHAT IS IT YOU ARE LOOKING
15 AT ON THAT PARTICULAR DATE? WERE YOU LOOKING AT THE
16 FINDINGS OF THE M.R.I. ITSELF OR WERE YOU LOOKING AT A
17 REPORT OF THE M.R.I.?
18 A. A RADIOLOGICAL REPORT.
19 Q. SO YOU DIDN'T VIEW THE FILM?
20 A. NO, SIR.
21 Q. I GUESS, FOR LACK OF A BETTER WORD?
22 A. THAT'S PERFECT. I DID NOT.
23 Q. OKAY. BASED UPON THAT RADIOLOGY REPORT I UNDERSTAND,
24 DOCTOR, THAT YOU INITIATED A CALL TO THE PATIENT'S WIFE; IS
25 THAT CORRECT?
4025
1 A. VONDA ALLDREDGE.
2 Q. VONDA ALLDREDGE. THAT CALL TOOK PLACE ON THE 13TH?
3 A. YES, SIR.
4 Q. DO YOU REFERENCE THAT CALL IN YOUR NOTES?
5 A. I DO, ON THE 13TH.
6 Q. CAN YOU TELL ME WHICH PAGE YOU REFERENCE THAT ON?
7 A. 0017.
8 Q. NOW, IS THIS UNDER PROGRESS NOTES?
9 A. YES, SIR.
10 Q. OKAY. 00 WHAT?
11 A. IT LOOKS LIKE 17.
12 Q. AGAIN, IS THERE A TIME ON THAT NOTE?
13 A. NO, THERE'S NOT.
14 Q. DO YOU HAVE ANY INDEPENDENT RECOLLECTION OF THAT
15 CONVERSATION OTHER THAN YOUR NOTES?
16 A. I SPOKE WITH MS. ALLDREDGE THAT DAY, YES, I DID.
17 Q. YOU WHAT?
18 A. I SPOKE WITH MS. ALLDREDGE THAT DAY, I TALKED ABOUT THAT
19 YESTERDAY.
20 Q. AS I UNDERSTAND YOUR TESTIMONY, THAT CONVERSATION TOOK
21 PLACE NOT OVER THE PHONE BUT IN THE HOSPITAL?
22 A. YES. THERE WAS A PHONE CALL MADE AND THEN WE SPOKE
23 LATER IN THE HOSPITAL.
24 Q. DO YOU REMEMBER TELLING HER THAT YOU THOUGHT ENNIS HAD
25 SUFFERED A MASSIVE STROKE?
4026
1 A. I DON'T KNOW IF I USED THE WORD MASSIVE STROKE BUT I
2 TOLD HER THAT HE HAD A -- FROM WHAT I COULD TELL THAT HE HAD
3 A STROKE.
4 Q. I WANT YOU TO TURN TO MED-PAGE 0027.
5 A. OKAY.
6 Q. THIS IS THE FROM THE DEPARTMENT OF THE DIAGNOSTIC
7 IMAGING. THIS IS THE M.R.I. OF THE BRAIN OF ENNIS
8 ALLDREDGE, IS IT NOT?
9 A. IT IS. IT'S THE REPORT.
10 Q. THIS WAS THE REPORT YOU REFERRED TO EARLIER IN YOUR
11 TESTIMONY, CORRECT?
12 A. YES, SIR.
13 Q. IT SAYS, PATIENT WAS SEDATED BUT STILL COMBATIVE AND
14 WOULD NOT LAY STILL. AS A RESULT, THE STUDY IS QUITE
15 COMPROMISED DUE TO MOTION, CORRECT?
16 A. THAT'S WHAT IT SAYS.
17 Q. THEN IT GOES DOWN FURTHER AND AT THE BOTTOM, QUESTION OF
18 INFARCTION INVOLVING THE LEFT OCCIPITAL AND GRAY MATTER. I
19 CANNOT PRECISELY DATE THIS POSSIBLE INFARCTION, ALTHOUGH
20 THERE COULD BE SOME EARLY COMPRESSION OF THE OCCIPITAL HORN
21 SUGGESTING ACUTE TO SUBACUTE EVENT. CLINICAL CORRELATION
22 URGED AND FOLLOW UP WITH CT OR LATER MAGNETIC RESONANCE
23 IMAGING WITH BETTER SEDATION MAY BE USEFUL.
24 NOW, DOCTOR, DOESN'T THAT NOTE INDICATE THAT THIS WAS A
25 COMPROMISED RADIOLOGY -- OR I SHOULD SAY X-RAY?
4027
1 A. THAT'S WHAT IT SAYS.
2 Q. OR M.R.I.?
3 A. IT USES THE WORD COMPROMISED.
4 Q. AND DOESN'T THAT MEAN TO YOU THAT IN TERMS OF ERRING ON
5 THE SIDE OF CAUTION A FURTHER STUDY SHOULD HAVE BEEN DONE TO
6 VERIFY WHETHER OR NOT INDEED THERE WAS A OCCIPITAL
7 INFARCTION OF THAT NATURE?
8 A. NO, SIR. IT SAYS CLINICAL CORRELATION IS RECOMMENDED
9 AND I DID THAT. I MADE A JUDGMENT WITH THE FAMILY, I TOLD
10 THEM WHAT THIS WAS AND WHAT IT MEANT.
11 Q. DID YOU CALL IN A CONSULT ON THAT?
12 A. NO, SIR.
13 Q. SO YOU DIDN'T HAVE THE RADIOLOGIST OR ANY OTHER
14 PHYSICIAN REVIEW THAT WITH YOU?
15 A. WELL, THE RADIOLOGIST REVIEWED IT AND GAVE THIS REPORT.
16 Q. HE GAVE HIS REPORT. BUT YOU DIDN'T CALL ANYBODY ELSE IN
17 TO GET ANY INDEPENDENT JUDGMENT FROM SOME OTHER PARTY AS TO
18 THIS BEING A COMPROMISED M.R.I.?
19 A. BASICALLY I ORDERED THE M.R.I. BECAUSE IT LOOKED LIKE HE
20 HAD A STROKE AND IT'S SHOWING A STROKE. IT'S COMPROMISED,
21 IT'S NOT PERFECT. BUT, NO, I DIDN'T THINK THAT I NEEDED TO
22 GET A CONSULT.
23 Q. AGAIN, DOCTOR, YOU PREVIOUSLY TESTIFIED ON MARY CRANE
24 YOU WERE NOT COMFORTABLE WITH ORDERING AN ANTIBIOTIC FOR
25 MARY CRANE BUT YOU DID FEEL COMFORTABLE IN THIS PARTICULAR
4028
1 SETTING IN MAKING A DETERMINATION THAT THIS INDIVIDUAL HAD
2 SUFFERED A STROKE?
3 A. I DIDN'T FEEL PARTICULARLY UNCOMFORTABLE WITH ORDERING
4 AN ANTIBIOTIC FOR MARY CRANE AND I ACTUALLY DID ORDER IT. I
5 SIMPLY THOUGHT IT WOULD BE BETTER TO HAVE DR. DIENHART DO
6 THAT. WITH RESPECT TO THIS M.R.I., AS PART OF PSYCHIATRY,
7 YOU STUDY A LOT OF NEUROLOGY, YOU SEE A LOT OF STROKES AND I
8 SAW A STROKE AND I ORDERED AN M.R.I. AND IT WAS BEING
9 CONFIRMED BY THIS. IT'S NOT A PERFECT CONFIRMATION BUT IT
10 WAS VERY GOOD EVIDENCE OF A STROKE.
11 Q. BUT YOU, IN FACT, DIDN'T FOLLOW THE RECOMMENDATION, DID
12 YOU?
13 A. WHAT RECOMMENDATION IS THAT, TO GET ANOTHER?
14 Q. THE RECOMMENDATION MADE TO HAVE FURTHER -- A FURTHER
15 M.R.I. DONE, DID YOU?
16 A. I FOLLOWED THE RECOMMENDATION TO CLINICALLY CORRELATE.
17 Q. WHO DID YOU CLINICALLY CORRELATE WITH?
18 A. IT DOESN'T RECOMMEND A C.T. OR ANOTHER -- IT DOESN'T
19 RECOMMEND THAT AT ALL. IT SAYS FOLLOW-UP MAY BE USEFUL.
20 Q. BUT THE QUESTION WAS: WHO DID YOU CLINICALLY CORRELATE
21 WITH? AS I RECALL YOUR TESTIMONY, YOU SAID YOU TALKED TO
22 THE FAMILY.
23 A. BY THAT I MEAN I LOOKED AT THE PATIENT AND LOOKED AT
24 WHAT HE WAS EXHIBITING.
25 Q. I SEE. SO THE CLINICAL CORRELATION WAS DONE WITH YOUR
4029
1 LOOKING AT THE PATIENT?
2 A. ABSOLUTELY.
3 Q. AND THEN YOU REPORTED YOUR FINDINGS TO VONDA ALLDREDGE;
4 IS THAT CORRECT?
5 A. I DID, YES, SIR.
6 Q. AND VONDA ALLDREDGE, THE DISCUSSION YOU HAD WITH HER
7 TOOK PLACE AT THE HOSPITAL TO YOUR RECOLLECTION?
8 A. SATURDAY MORNING, THE 13TH.
9 Q. DID YOU -- WELL, LET'S TURN TO MEDICAL/LEGAL IF WE CAN
10 FOR A SECOND. CALLING YOUR ATTENTION TO PAGE 00085.
11 A. OKAY.
12 Q. IT'S ENTITLED MEDICAL TREATMENT PLAN AND THIS APPARENTLY
13 WAS DONE BACK IN OCTOBER OF 1995 WITH DR. CUNNINGHAM WHO WAS
14 THE TREATING PHYSICIAN FOR ENNIS ALLDREDGE; IS THAT CORRECT?
15 A. YES, IT IS.
16 Q. HAD YOU HAD THE OPPORTUNITY TO REVIEW THAT DOCUMENT
17 PREVIOUS TO YOUR DISCUSSION WITH VONDA ALLDREDGE?
18 A. YES.
19 Q. NOW, IT INDICATES THAT -- THIS WAS FILLED OUT SOMETIME
20 BEFORE HIS HOSPITALIZATION. I TAKE IT THERE WERE NO OTHER
21 RECORDS FROM THE HOSPITAL OTHER THAN THIS PARTICULAR ADVANCE
22 DIRECTIVE; IS THAT CORRECT?
23 A. I CAN'T SAY FOR SURE. HE HAD ANOTHER ONE, I DON'T KNOW
24 IF IT WAS IN THE HOSPITAL. IT MAY HAVE BEEN IN THE HOSPITAL
25 AND NOT IN HIS CHART.
4030
1 Q. HE HAD ANOTHER ONE?
2 A. YES, SIR, I'VE SEEN IT.
3 Q. HOW WERE YOU AWARE OF THAT?
4 A. I'VE SEEN THAT SINCE THAT DAY. I DON'T KNOW IF IT WAS
5 THERE THEN.
6 Q. YOU'VE SEEN THAT SINCE THEN?
7 A. UH-HUH.
8 Q. THE ONLY RECOLLECTION YOU HAVE IS THIS PARTICULAR
9 DOCUMENT ON THAT DATE; IS THAT RIGHT, GOING BACK TO THE 13TH
10 OF JANUARY OF 1996?
11 A. I'M NOT SURE I UNDERSTAND THAT QUESTION.
12 Q. WELL, YOU PREVIOUSLY TESTIFIED YOU REVIEWED THIS
13 DOCUMENT BEFORE YOUR DISCUSSION WITH VONDA ALLDREDGE?
14 A. YES, SIR, I WOULD HAVE.
15 Q. THERE'S NO INDICATION OF THAT IN THE RECORD, IS THERE?
16 A. THAT I REVIEWED THE DOCUMENT?
17 Q. UH-HUH.
18 A. NO, SIR.
19 Q. BECAUSE THIS DOCUMENT WAS NOT PREPARED BY THE HOSPITAL,
20 CORRECT?
21 A. IT APPEARS TO HAVE COME FROM SOMEWHERE ELSE. SAME FORM
22 BUT DR. CUNNINGHAM I DON'T THINK WAS AT THAT HOSPITAL.
23 Q. NOW, IT STATES IN THE BODY OF THE DOCUMENT, THE
24 FOLLOWING CARE AND TREATMENT OR WITHHOLDING OF TREATMENT IS
25 DIRECTED WITH RESPECT TO THE DECLARANT, NO CPR, WHICH I
4031
1 ASSUME IS CARDIOPULMONARY RESUSCITATION, CORRECT?
2 A. YES, SIR.
3 Q. AND NO RESPIRATORS?
4 A. CORRECT.
5 Q. DOCTOR, IT'S TRUE, IS IT NOT, THAT DIRECTIVE DOES NOT
6 DIRECT YOU TO WITHHOLD ANY I.V.'S, FLUIDS, DOESN'T PROHIBIT
7 YOU FROM RENDERING TREATMENT OTHER THAN CPR AND RESPIRATORS,
8 CORRECT?
9 A. CORRECT.
10 Q. BUT YET AS I UNDERSTAND YOUR TESTIMONY, YOU ORDERED THE
11 WITHHOLDING OF THE MEDICATIONS, YOU ORDERED THE WITHHOLDING
12 OF THE I.V.'S AND YOU REDUCED THE DILANTIN, CORRECT -- OR
13 NOT DILANTIN -- THE INSULIN?
14 A. INSULIN, YES, SIR.
15 Q. IF A PERSON IS DIABETIC AND YOU REDUCE OR TAKE AWARE
16 THEIR INSULIN, DOES THAT NOT CREATE IN AND OF ITSELF A RISK
17 OF DEATH?
18 A. YES, SIR.
19 Q. NOW, IN ADDITION TO THAT, WE START ON THE 13TH A REGIMEN
20 OF ADMINISTRATION OF MORPHINE, CORRECT?
21 A. CORRECT.
22 Q. AND THAT'S ORDERED AS I RECALL AT 10 MILLIGRAMS EVERY,
23 WHAT, THREE HOURS; IS THAT CORRECT?
24 A. CORRECT.
25 Q. AND IN ADDITION TO THE MORPHINE, YOU ALSO HAVE ATIVAN ON
4032
1 BOARD; IS THAT CORRECT?
2 A. THAT'S CORRECT.
3 Q. BOTH BEING CENTRAL NERVOUS SYSTEM DEPRESSANTS?
4 A. CAN BE, YES, SIR.
5 Q. DID YOU MONITOR ENNIS ALLDREDGE AT THAT TIME?
6 A. YES, WE DID.
7 Q. AND THE PATIENT DIED WHEN?
8 A. ON THE 14TH AT APPARENTLY 9:36.
9 Q. DO YOU KNOW WHEN THE LAST SHOT OF MORPHINE WAS
10 ADMINISTERED TO ENNIS ALLDREDGE?
11 A. IT APPEARS AT 8 THAT MORNING.
12 Q. IN FACT, THERE WAS ANOTHER SHOT THAT WAS ORDERED THAT
13 WAS HELD, RIGHT?
14 A. CORRECT.
15 Q. I'M GOING TO ASK YOU THE SAME QUESTION, DOCTOR. DO YOU,
16 SIR, HAVE AN OPINION AS TO WHETHER OR NOT THE MORPHINE THAT
17 WAS ADMINISTERED TO ENNIS ALLDREDGE ON THE 13TH AND 14TH
18 ALONG WITH THE ATIVAN CAUSED HIS DEATH?
19 A. YES, I DO.
20 Q. OKAY. WHAT IS THAT OPINION, SIR?
21 A. THAT IT DID NOT.
22 Q. DO YOU HAVE AN OPINION, SIR, WHETHER OR NOT ANY OF THE
23 OTHER DRUGS THAT WERE ADMINISTERED PRIOR TO THAT TIME THAT
24 WERE ALSO CENTRAL NERVOUS SYSTEM DEPRESSANTS IN ANY WAY
25 CONTRIBUTED TO HIS DEATH?
4033
1 A. YES.
2 Q. AND THAT OPINION?
3 A. THAT THEY DID NOT.
4 Q. DO YOU HAVE AN OPINION, SIR, AS TO WHETHER OR NOT THESE
5 DRUGS IN COMBINATION WITH ONE ANOTHER HAD ANY EFFECT OF
6 CONTRIBUTING TO THE DEATH OF ENNIS ALLDREDGE?
7 A. I DO.
8 Q. AND THAT OPINION?
9 A. IS THAT THEY DID NOT CONTRIBUTE TO HIS DEATH.
10 Q. YOU DON'T THINK THEY HASTENED HIS DEATH IN ANY WAY?
11 A. NO, SIR.
12 Q. YESTERDAY WHEN YOU TESTIFIED, DOCTOR, YOU AGREED THAT IN
13 TREATING PATIENTS WHO ARE SUFFERING FROM THESE TYPES OF
14 DISORDERS THAT YOU WOULD HAVE TO GO BY THE CLINICAL BEHAVIOR
15 OF THE PATIENT AND ADJUST THE DOSAGES ACCORDINGLY; IS THAT
16 CORRECT?
17 A. YES, SIR.
18 Q. AND ON ELLEN ANDERSON, I ASSUME YOU WOULD WANT TO KNOW
19 HOW HER FIRST DOSE OF MORPHINE IMPACTED HER, CORRECT?
20 A. YES, I WOULD.
21 Q. AND AS WE PREVIOUSLY EXAMINED THE RECORD ON THE MORNING
22 OF -- AT 1 O'CLOCK ELLEN ANDERSON'S RESPIRATORY RATE WAS
23 VARYING BETWEEN 8 TO 16, IT WAS ERRATIC; IS THAT CORRECT?
24 A. AT 1 O'CLOCK.
25 Q. AT 1 O'CLOCK. AND YOU'RE SAYING, AS I UNDERSTAND IT OR
4034
1 TESTIFYING IN COURT, THAT YOU NEVER ASKED TRACY SCHOLL ABOUT
2 HER RESPIRATORY RATE ON THAT PARTICULAR OCCASION?
3 A. I DON'T REMEMBER SPECIFICALLY ASKING HER THAT.
4 Q. OKAY. YOU WERE NOT AWARE OF IT; IS THAT CORRECT, OR YOU
5 DON'T RECALL, IS THAT A FAIR STATEMENT?
6 A. WELL, I THINK A FAIR STATEMENT WOULD BE AT 3:30 IN THE
7 MORNING SHE CALLED TO REPORT A SEVERE PAIN AND DID NOT MAKE
8 ANYTHING OF THE PREVIOUS ERRATIC RESPIRATIONS THAT SHE
9 CHARTED.
10 Q. TRACY SCHOLL REPORTED SEVERE PAIN?
11 A. SHE REPORTED PAIN.
12 Q. DO YOU WANT TO PULL OUT ELLEN ANDERSON'S? ON MED-191
13 READING TO YOU THE NOTE AT 3:15 P.M. PATIENT AWAKENED,
14 THRASHING ARMS, ATTEMPTING TO THROW BODY, MOANING AND
15 SCREAMING. DOES THAT SAY SEVERE PAIN?
16 A. I INTERPRET THAT AS SEVERE PAIN.
17 Q. I SEE. YOU ALSO WERE NOT MADE AWARE AT THAT TIME THAT
18 THE BLOOD PRESSURE WAS 70 OVER 50; IS THAT CORRECT?
19 A. AS FAR AS I KNOW. THE PREVIOUS --
20 Q. YOU DIDN'T CALL --
21 A. -- THE PREVIOUS BLOOD PRESSURE, RIGHT.
22 Q. DO YOU THINK THAT THE BLOOD PRESSURE OF 70 OVER 50 --
23 WELL, STRIKE THAT.
24 AS YOU'VE PREVIOUSLY TESTIFIED, YOU WEREN'T SURE IF
25 MORPHINE WOULD CAUSE THE LOWERING OF BLOOD PRESSURE; IS THAT
4035
1 CORRECT?
2 A. CORRECT.
3 Q. BUT YOU ARE AWARE OF THE RISKS, INCLUDING THE RISK OF
4 DEATH ASSOCIATED WITH THE ADMINISTRATION OF MORPHINE,
5 CORRECT?
6 A. CORRECT.
7 Q. SO YOU DID NOT THINK IT IMPORTANT TO INQUIRE AS TO THE
8 RESPIRATORY RATES OR TO INQUIRE AS TO THE BLOOD PRESSURE
9 BEFORE ADMINISTERING ANOTHER DOSE OF MORPHINE TO THIS
10 PATIENT?
11 A. OF COURSE NOT. SHE CALLED ME, SHE TOLD ME ABOUT
12 OBVIOUSLY THE PROBLEMS BECAUSE I ORDERED MORPHINE AND SHE
13 DIDN'T TELL ME ANYTHING ABOUT THE HEART RATE AND BLOOD
14 PRESSURE FROM BEFORE. SHE WAS PROBABLY SLEEPING AT
15 1 O'CLOCK.
16 Q. AND AS YOU'VE PREVIOUSLY TESTIFIED, YOU DIDN'T THINK IT
17 WAS A CONCERN TO YOU THAT YOU WOULD ORDER A DOSAGE OF
18 10 MILLIGRAMS FOR AN 81-POUND WOMAN BEFORE SHE EVEN HAS A
19 FULL PHYSICAL WORK-UP?
20 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. THIS
21 IS CUMULATIVE AND REPETITIVE WHAT WE WENT OVER YESTERDAY.
22 THE COURT: SUSTAINED.
23 Q. (BY MR. WILSON) DOCTOR, WHOSE DUTY AND RESPONSIBILITY
24 DO YOU THINK IT IS TO LAY OUT THE TREATMENT OPTIONS TO THE
25 FAMILY BEFORE A DECISION IS MADE TO RENDER COMFORT CARE?
4036
1 A. THE ATTENDING PHYSICIAN.
2 Q. SO THE NURSES DON'T PARTICIPATE IN THAT PARTICULAR OR I
3 SHOULD SAY -- STRIKE THAT.
4 THAT'S NOT THE NURSES' RESPONSIBILITY IN YOUR OPINION;
5 IS THAT CORRECT?
6 A. NO, SIR.
7 Q. YESTERDAY YOU ALSO TESTIFIED, AS I RECALL, THAT YOU
8 DON'T DO OR YOU ARE VERY LIMITED PRACTICE IN TERMS OF
9 PSYCHOTHERAPY?
10 A. IN THE HOSPITAL I HARDLY DO ANY PSYCHOTHERAPY.
11 Q. YOU HARDLY DID ANY PSYCHOTHERAPY?
12 A. CORRECT.
13 Q. DO YOU RECALL, DOCTOR, HAVING BILLED FOR PSYCHOTHERAPY
14 TREATMENT TO MARY CRANE?
15 A. NO, SIR.
16 Q. DO YOU RECALL HAVING BILLED MARY CRANE FOR PSYCHOTHERAPY
17 TREATMENT ON JANUARY THE 8TH WHICH WOULD BE THE DATE AFTER
18 HER DEATH?
19 A. OH, I SEE WHAT YOU MEAN. THE BILLING CODES FOR
20 INPATIENT TREATMENT, AT THAT TIME PSYCHOTHERAPY IS WHAT IT'S
21 CALLED BUT IT'S ANY SORT OF TIME SPENT WITH THE PATIENT,
22 FAMILY AND STAFF.
23 Q. SO THAT'S NOT LISTED UNDER HOSPITAL CARE, THAT'S LISTED
24 UNDER PSYCHOTHERAPY FOR YOUR SERVICES; IS THAT CORRECT?
25 A. LISTED WHERE?
4037
1 Q. PARDON?
2 A. LISTED WHERE?
3 Q. IN TERMS OF THE BILLING UNDER MEDICARE, YOU PREVIOUSLY
4 TESTIFIED THAT YOU WOULD BILL FOR YOUR DIRECT SERVICES; IS
5 THAT CORRECT?
6 A. RIGHT.
7 Q. OKAY. SO IF YOU ARE BILLING A PATIENT FOR SERVICES, HOW
8 DO YOU GO ABOUT THAT BILLING PROCESS?
9 A. I BASICALLY TELL MY BILLING PERSON, THE PERSON WHO I
10 HIRED TO DO MY BILLING, WHAT TIME I SPENT THAT DAY WITH THE
11 PATIENT, WHETHER IT WAS A INTAKE, A SUBSEQUENT FOLLOW-UP OR
12 DISCHARGE AND THEY DID ALL THE BILLING FROM THERE.
13 Q. SO IF I HAVE A BILLING THAT STATES THAT YOU BILLED FOR
14 SERVICES ON JANUARY THE 8TH OF 1996 FOR PSYCHOTHERAPY, WHICH
15 IS THE DAY AFTER MARY CRANE DIED, THEN THAT BILLING WOULD BE
16 IN ERROR, WOULD IT NOT?
17 A. I'M NOT SURE WHAT CODE MY BILLING PERSON USED FOR
18 DISCHARGES. SHE MAY HAVE HAD SOME KIND OF PSYCHOTHERAPY
19 MIXED IN THERE. I REALLY DON'T KNOW. I NEVER REALLY SAW
20 THOSE ACTUALLY.
21 Q. BUT YOU WERE PRIMARILY RESPONSIBLE FOR GETTING THE
22 INFORMATION TO HER TO BILL, WERE YOU NOT?
23 A. FOR THE 8TH, I WOULD HAVE SHOWN A DISCHARGE.
24 MR. WILSON: JUST A COUPLE OTHER QUESTIONS. IF I
25 MIGHT JUST HAVE A MINUTE.
4038
1 THE COURT: OKAY.
2 Q. (BY MR. WILSON) YOU PREVIOUSLY TESTIFIED CONCERNING A
3 CONTRACT BETWEEN AND YOU THE -- AS THE ASSOCIATE MEDICAL
4 DIRECTOR SERVICES AGREEMENT WHICH IS EXHIBIT 44?
5 A. YES, SIR.
6 Q. AND YOU INDICATED ALSO THAT YOU AGREED TO COMPLY WITH
7 THE POLICIES, RULES AND REGULATIONS OF BOTH THE HOSPITAL AND
8 THE UNIT; IS THAT CORRECT?
9 A. IN THAT CONTRACT, YES.
10 Q. DID YOU, IN FACT, EVER REVIEW THE HOSPITAL POLICIES IN
11 CONNECTION WITH THE SERVICES THAT YOU WERE PROVIDING AT THE
12 HOSPITAL?
13 A. YOU MEAN THE 2-INCH THICK BYLAWS THING?
14 Q. UH-HUH, YES.
15 A. NO, SIR.
16 Q. SO YOU DIDN'T READ THOSE HOSPITAL POLICIES?
17 A. THE BYLAWS, NO, I THINK THAT'S WHAT YOU ARE REFERRING
18 TO.
19 Q. THE BYLAWS AND POLICIES THEMSELVES?
20 A. RIGHT, I DIDN'T READ ALL THROUGH THEM, NO.
21 Q. SO YOU WEREN'T FAMILIAR WITH THEM?
22 A. NO, I DON'T KNOW WHAT ALL THEY SAID.
23 Q. WOULD IT BE A FAIR STATEMENT TO SAY, DOCTOR, THAT GOING
24 BACK AND COMPILING THE RECORDS THAT WE REVIEWED HERE TODAY
25 THAT THE FIRST MORPHINE THAT WAS ADMINISTERED ON THE UNIT
4039
1 WAS ADMINISTERED ON DECEMBER 25TH OF 1995?
2 A. NO, SIR.
3 Q. THERE WAS MORPHINE ADMINISTERED PREVIOUS TO THAT TIME?
4 A. I'M SURE IT WAS FROM TIME TO TIME. IT'S A COMMONLY USED
5 DRUG IN THE ELDERLY.
6 Q. WOULD IT BE A FAIR STATEMENT TO STATE THAT IF WE
7 REVIEWED THE RECORDS FROM DECEMBER THE 6TH THROUGH JANUARY
8 THE 14TH, THAT BEING -- THE INITIAL DATE BEING THE ADMISSION
9 DATE OF JUDITH LARSEN AND THE LAST DATE BEING THAT THE DEATH
10 OF ENNIS ALLDREDGE, WOULD IT BE A FAIR STATEMENT TO SAY THAT
11 THE ONLY TIME MORPHINE WAS INITIALLY ADMINISTERED DURING
12 THAT TIME FRAME WAS ON JANUARY -- OR ON DECEMBER 25TH, 1995?
13 A. AMONGST THOSE FIVE PATIENTS?
14 Q. AMONGST THOSE FIVE PATIENTS AND ANY OTHER PATIENTS THAT
15 WERE ON THE UNIT.
16 A. THERE MAY HAVE BEEN OTHER PATIENTS WHO RECEIVED MORPHINE
17 ON THE UNIT AT THAT TIME. I HAVE NOT --
18 Q. YOU HAVE NOT REVIEWED THOSE RECORDS?
19 A. CORRECT.
20 Q. WELL, LET'S JUST TALK ABOUT THE FIVE PATIENTS.
21 A. OKAY.
22 Q. AMONGST THOSE FIVE PATIENTS, WOULD THAT BE A FAIR
23 STATEMENT?
24 A. THE 25TH, I THINK SO.
25 Q. AND THAT WAS WHEN THE FIRST MORPHINE WAS ADMINISTERED
4040
1 TO --
2 A. JUDITH.
3 Q. -- JUDITH LARSEN. AND THEN WE HAVE IN THAT CONTEXT
4 MORPHINE ADMINISTERED ON THE 29TH TO ELLEN ANDERSON,
5 CORRECT?
6 A. ARE YOU -- DO YOU WANT TO GO THROUGH EACH ONE? BECAUSE
7 MS. LARSEN ALSO HAD MORPHINE ON THE 26TH.
8 Q. WELL, I'M JUST -- WE'RE TALKING ABOUT FIRST TO LAST.
9 A. UH-HUH. OH, OKAY, GOTCHA.
10 Q. AND THERE WAS MORPHINE --
11 A. -- PERSON.
12 Q. -- BOTH TO JUDITH LARSEN AND SHE RECEIVED MORPHINE ON
13 THROUGH HER DEATH ON VARIOUS DATES, CORRECT?
14 A. CORRECT.
15 Q. ELLEN ANDERSON RECEIVED MORPHINE, CORRECT?
16 A. SHE DID, THE 29TH AND 30TH.
17 Q. THE 29TH AND 30TH. WE'VE GOT MARY CRANE RECEIVING A
18 DURAGESIC PATCH AND MORPHINE EXTENDING OVER THE 28TH THROUGH
19 THE 7TH OF JANUARY OF '96.
20 A. RIGHT.
21 Q. AND WE'VE GOT --
22 A. LYDIA SMITH.
23 Q. -- LYDIA SMITH ALSO RECEIVING MORPHINE ON THE 7TH AND
24 8TH OF JANUARY OF '96.
25 A. YES, SIR.
4041
1 Q. AND THEN WE HAVE ENNIS ALLDREDGE RECEIVING MORPHINE ON
2 THE 13TH AND 14TH.
3 A. CORRECT.
4 Q. AS I UNDERSTAND IT, YOU DON'T FEEL MORPHINE PLAYED ANY
5 PART IN ALL FIVE OF THOSE DEATHS; IS THAT CORRECT?
6 A. I THINK EACH ONE OF THESE PATIENTS GOT ILL, AND --
7 Q. DOCTOR, YOU DON'T BELIVE --
8 A. -- THE MORPHINE DID NOT PLAY ANY PART IN THEIR DEATH.
9 Q. WOULD YOU ANSWER --
10 THE COURT: LET HIM ANSWER THE QUESTION.
11 MR. WILSON: YES. THANK YOU, DOCTOR, THAT'S ALL I
12 WANTED TO ASK.
13 THE COURT: MR. STIRBA, IS THERE ANY REDIRECT?
14 MR. STIRBA: THERE IS, YOUR HONOR. MAY I APPROACH
15 THE WITNESS, YOUR HONOR?
16 THE COURT: YES.
17 REDIRECT EXAMINATION
18 BY MR. STIRBA:
19 Q. I'M GOING TO HAND YOU WHAT WAS OFFERED INTO EVIDENCE AS
20 STATE'S EXHIBIT P-44 YESTERDAY. DO YOU HAVE THAT IN FRONT
21 OF YOU?
22 A. YES, SIR.
23 Q. AND THAT'S THE CONTRACT FOR ASSOCIATE MEDICAL DIRECTORS
24 SERVICES, CORRECT?
25 A. YES, SIR.
4042
1 Q. I'M GOING TO SHOW YOU DEFENSE EXHIBIT 25 AND ASK YOU IF
2 I CAN IDENTIFY WHAT DEFENSE EXHIBIT 25 IS.
3 A. IT'S THAT SAME CONTRACT.
4 Q. AND I WANT TO YOU LOOK AT PAGE TWO OF DEFENSE EXHIBIT 25
5 AND PAGE TWO OF THE AGREEMENT OFFERED INTO EVIDENCE
6 YESTERDAY BY THE STATE P-44 AND ASK YOU IF THOSE TWO PAGES
7 MATCH.
8 A. NO, THEY DON'T.
9 Q. AND WHAT IS THE DIFFERENCE JUST GENERALLY BETWEEN THE
10 TWO PAGES AS YOU REVIEW THEM, DEFENSE EXHIBIT 25 AND P-44?
11 A. IT LOOKS LIKE IT'S ALL THE SAME EXCEPT AT THE BOTTOM OF
12 THE PLAINTIFF'S IT'S -- THERE'S THIS COMPENSATION THING AND
13 IT'S BEEN MARKED OUT OR WHITED OUT.
14 Q. ON P-44?
15 A. YES, SIR.
16 MR. STIRBA: WE WOULD OFFER, YOUR HONOR, D25.
17 MR. WILSON: NO OBJECTION, YOUR HONOR.
18 THE COURT: OKAY. DEFENDANT'S EXHIBIT 25 IS
19 RECEIVED.
20 Q. (BY MR. STIRBA) AND IN TERMS OF WHAT HAS BEEN WHITED
21 OUT ON P-24, COULD YOU READ THAT --
22 THE COURT: P-24 OR 44?
23 MR. STIRBA: P-44. THANK YOU, YOUR HONOR.
24 Q. (BY MR. STIRBA) COULD YOU READ WHAT IS STATED ON D25
25 WHICH HAS BEEN WHITED OUT ON THE STATE EXHIBIT P-44?
4043
1 A. 120 -- 125 -- DO YOU WANT ME TO READ THAT LINE?
2 Q. WHY DON'T YOU READ THE WHOLE PAREN A IN ITS ENTIRETY
3 FROM D-25.
4 A. FOR ALL MEDICAL ADMINISTRATIVE RESPONSIBILITIES RENDERED
5 BY PHYSICIAN UNDER THIS AGREEMENT, HORIZON SHALL COMPENSATE
6 PHYSICIAN AT $125 PER HOUR FOR EACH DOCUMENTED HOUR OF
7 SERVICE NOT TO EXCEED 16 HOURS PER MONTH.
8 Q. AND WHAT HAS BEEN WHITED OUT OF THAT PARAGRAPH FROM THE
9 STATE'S EXHIBIT?
10 A. THE $125.
11 Q. NOW, I'M GOING TO DIRECT YOUR ATTENTION TO D-25
12 SPECIFICALLY SUBSECTION C, IT'S A PAGE TWO.
13 A. UP AT THE TOP.
14 Q. DO YOU SEE IT?
15 A. YES.
16 Q. AND IT READS, NOTWITHSTANDING ANYTHING TO THE CONTRARY
17 HEREIN, HORIZON MAY TERMINATE THIS AGREEMENT UPON WRITTEN
18 NOTICE EFFECTIVE IMMEDIATELY IN THE EVENT OF ANY OF THE
19 FOLLOWING.
20 DID YOU EVER RECEIVE A WRITTEN NOTICE FROM HORIZON THAT
21 TERMINATED THIS AGREEMENT? BECAUSE AS INDICATED IN
22 SUBSECTION I --
23 MR. WILSON: OBJECTION, YOUR HONOR.
24 MR. STIRBA: -- YOUR PRIVILEGES --
25 THE COURT: IT'S LEADING.
4044
1 MR. WILSON: IF HE WANTS TO REFER HIM TO THE
2 SUBJECTION.
3 THE COURT: DO YOU WANT FOR REPHRASE THE QUESTION?
4 MR. STIRBA: SURE.
5 Q. (BY MR. STIRBA) IF YOU LOOK AT SUBSECTION C-I, DOCTOR,
6 DO YOU SEE THAT?
7 A. YES, SIR.
8 Q. AND IT STATES, THE PHYSICIAN PRIVILEGES TO ADMIT
9 PATIENTS TO THE UNIT ARE SUSPENDED OR REVOKED. DO YOU SEE
10 THAT?
11 A. YES, SIR.
12 Q. DID YOU RECEIVE A WRITTEN NOTICE FROM HORIZON
13 TERMINATING THIS AGREEMENT BECAUSE YOUR PRIVILEGES TO ADMIT
14 PATIENTS TO THE UNIT ARE SUSPENDED OR REVOKED?
15 A. NO, I NEVER DID.
16 Q. NEXT UNDER C-2. DID YOU EVER RECEIVE A WRITTEN NOTICE
17 FROM HORIZON RELEVANT TO C-2 WHICH STATES, THE PHYSICIAN'S
18 LICENSE TO PRACTICE MEDICINE IN THE STATE THE HOSPITAL IS
19 LOCATED IS SUSPENDED, REVOKED OR RESTRICTED.
20 A. NO.
21 Q. UNDER SUBSECTION SIX, DID YOU EVER RECEIVE WRITTEN
22 NOTICE FROM HORIZON UNDER C-6 THAT INDICATED THE CONTRACT
23 WAS TERMINATED BECAUSE THE PHYSICIAN COMMITS A FELONY OR IS
24 GUILTY OF A SERIOUS AND SUBSTANTIAL VIOLATION OF THE ETHICAL
25 AND PROFESSIONAL STANDARDS OF THE AMERICAN MEDICAL
4045
1 ASSOCIATION OR THE AMERICAN PSYCHIATRIC ASSOCIATION?
2 A. NO.
3 Q. DID YOU EVER RECEIVE A NOTICE UNDER SUBSECTION C-7 FROM
4 HORIZON TERMINATING THIS AGREEMENT BECAUSE THE PHYSICIAN IS
5 EXCLUDED BY MEDICARE OR MEDICAID FROM ELIGIBILITY AS A
6 PHYSICIAN PROVIDER UNDER EITHER PROGRAM?
7 A. NO, SIR.
8 Q. NOW, ROBERT, YOU WERE ASKED ABOUT WHETHER OR NOT YOU
9 BELIEVE THAT THE PSYCH MEDICATIONS PROVIDED TO MARY CRANE
10 CAUSED HER DEATH.
11 A. RIGHT.
12 Q. TELL US WHY YOU BELIEVE THE PSYCH MEDICATIONS FOR MARY
13 CRANE AS ORDERED BY YOU WERE APPROPRIATE.
14 A. THEY WERE ALL ORDERED IN RESPONSE TO BEHAVIORS AND
15 SYMPTOMS AND SIGNS THAT SHE WAS SHOWING. SHE WAS IN A
16 HOSPITAL WHERE SHE HAD 24-HOUR MONITORING. I CAME IN EVERY
17 DAY TO CHECK ON THINGS, THEY WERE ALL CHANGED AS NEED BE.
18 THE BRINGING UP OF THESE GUIDELINES THAT SAY THIS COULD
19 HAPPEN OR THAT COULD HAPPEN, THE FACT IS THEY DIDN'T HAPPEN.
20 HER RESPIRATIONS WERE THE SAME THROUGHOUT HER
21 HOSPITALIZATION. I THINK THAT THEY WERE ALL VERY
22 APPROPRIATE. SHE WAS THERE FOR THE PURPOSE OF TREATING HER
23 PSYCHIATRIC CONDITION AND I USED SEDATING MEDICATIONS TO
24 TREAT AGITATION.
25 Q. IN HER CASE, WHY DO YOU BELIEVE THAT THE PSYCHIATRIC
4046
1 MEDICATIONS DID NOT CAUSE OR CONTRIBUTE TO HER DEATH?
2 A. I JUST DON'T SEE HOW THEY COULD HAVE. THEY WERE STOPPED
3 BEFORE HER DEATH SO THERE'S NO WAY THEY COULD HAVE COMBINED
4 WITH THE MORPHINE. HER RESPIRATIONS WERE FINE THROUGHOUT
5 THE TIME THAT SHE WAS BEING GIVEN ALL OF THOSE, INCLUDING
6 THE DURAGESIC, AND SHE REMAINED QUITE AGITATED FOR SOME TIME
7 SO THEY SEEMED APPROPRIATE. I DON'T THINK THEY HAD ANYTHING
8 TO DO WITH HER DEATH.
9 Q. NOW, YOU WERE ASKED ABOUT SOME ENTRIES FROM THE NURSES'
10 NOTES. I WANT YOU TO PULL THE BINDER FOR MARY CRANE,
11 PLEASE.
12 A. IN THE NURSES' NOTES?
13 Q. YES.
14 A. OKAY.
15 Q. AND YOU WERE ASKED TO REFER TO SOME ENTRIES ON
16 DECEMBER 31, 1995 AND I WANT TO DIRECT YOUR ATTENTION TO
17 MED-312.
18 A. GOT IT.
19 Q. AND THERE'S A NURSE NOTE ON 312 WHICH IS FOR DECEMBER 31
20 OF 1995, DO YOU SEE THAT?
21 A. YES, SIR.
22 Q. WERE YOU ASKED TO READ THAT ON CROSS-EXAMINATION?
23 A. NO, I DON'T THINK SO. ARE YOU TALKING ABOUT THIS --
24 WHICH ONE? THERE'S TWO THERE.
25 Q. WELL, THE ENTIRE NOTE STARTING AT IT APPEARS TO BE 1605.
4047
1 A. OH, OKAY.
2 Q. ON DECEMBER 31 OF 1995.
3 A. I DON'T THINK I WAS.
4 Q. OKAY. WOULD YOU READ IT, PLEASE, IN ITS ENTIRETY,
5 STARTING FROM THE TOP AT 1605 WHERE IT SAYS B DOWN TO THE
6 BOTTOM FOR 12/31 OF 1995.
7 A. OKAY. I'LL DO MY BEST, THIS IS A DIFFICULT ONE, BUT
8 IT'S BEHAVIOR: PATIENT HAS BEEN UP IN CHAIR THIS EVENING
9 WITH SOMETHING AGGRESSION, AGGRESSIVE BEHAVIORALLY TOWARDS
10 STAFF. PATIENT WOULD CRY OUT "HELP ME" BUT PATIENT WOULD
11 NOT STATE WHAT HELP WAS NEEDED. INTERVENTION OFFERED,
12 PATIENT GROUP, ONE-ON-ONE AND MEDICATIONS. PATIENT ATTENDED
13 GROUP, ATE 50 PERCENT OF MEAL, PATIENT WOULD REACH FOR
14 PEER'S FOOD BUT HARDLY ATE ANY OF HER OWN. PATIENT --
15 SORRY. PLAN: CONTINUE TO FOLLOW CARE PLAN AND OTHER
16 THERAPEUTIC ENVIRONMENT. AND IT'S SIGNED BUT I CAN'T TELL
17 BY WHO.
18 Q. THEN UNDERNEATH THAT THERE'S A FREE TEXT STARTING AT
19 1625 TO 2300 HOURS, READ THAT, PLEASE.
20 A. THIS IS THE EVENING NOTE. PATIENT WAS INCREASINGLY
21 AGITATED FROM 7 O'CLOCK ON SCREAMING, TRYING TO HIT, HITTING
22 THE CERTIFIED NURSING ASSISTANT. DOCTOR NOTIFIED, THE
23 PATIENT MEDICATED WITH ATIVAN, 2 MILLIGRAMS INTRAMUSCULARLY
24 WITH GOOD RESULTS, PATIENT SETTLED DOWN AND AGREED TO TAKE
25 HER EVENING MEDS, MEDICATIONS.
4048
1 Q. DID YOU BELIEVE THE ATIVAN THAT WAS GIVEN IN RESPONSE TO
2 WHAT THE NURSE CHARTED ON THAT DAY WAS APPROPRIATE?
3 A. YES, SIR.
4 Q. WHY?
5 A. THE PATIENT WAS AGITATED, I GAVE HER A APPROPRIATE DOSE,
6 HAD GOOD RESULTS, SHE SETTLED DOWN, SHE IMPROVED.
7 Q. NOW, YOU WERE ALSO ASKED ABOUT SOME ENTRIES CONCERNING
8 MARY CRANE ON 1/1 OF '96.
9 A. YES, SIR.
10 Q. I WANT YOU TO TURN TO 313.
11 A. OKAY.
12 Q. AND I'M GOING TO DIRECT YOUR ATTENTION SPECIFICALLY TO
13 1/1/96 THE ENTRY FOR 1430 HOURS, DO YOU SEE THAT?
14 A. RIGHT.
15 Q. WAS THAT SOMETHING YOU WERE ASKED ABOUT ON
16 CROSS-EXAMINATION?
17 A. NO.
18 Q. WOULD YOU PLEASE READ THAT NOTE IN ITS ENTIRETY?
19 A. BEHAVIOR: PATIENT VERY RESISTENT TO STAFF'S EFFORTS TO
20 PERFORM ACTIVITY OF DAILY LIVING CARE. PATIENT KICKING,
21 BITING STAFF'S FINGERS WHEN PLACING DENTURES IN MOUTH.
22 PATIENT WOULD NOT STAY PLACED IN WHEELCHAIR, KEPT SLIDING
23 DOWN, GRABBED OTHER PATIENT'S MEAL TRAY. CONTINUE, PATIENT
24 WOULD NOT BEAR WEIGHT FOR TRANSFERS. CONTINUES TO SAY "LET
25 ME UP." INTERVENTION: STAFF ATTEMPTED TO ALLOW PATIENT
4049
1 STAND, PROVIDED ACTIVITY OF DAILY LIVING CARES AND SET
2 BOUNDARIES FOR TOUCHING OTHER PATIENT'S TRAYS. PATIENT
3 WOULD NOT BEAR -- OH, I'M SORRY. RESPONSE: PATIENT WOULD
4 NOT BEAR ANY WEIGHT ON FEET, CONTINUES TO GRAB OTHER'S
5 TRAYS. PLAN: FOLLOW UP WITH GYNECOLOGICAL CONSULT IN
6 MORNING, FOLLOW UP -- FOLLOW UP BOOK ANNOTATED, I CAN'T READ
7 THAT LAST THAT WORD, BOOK I THINK IT IS, BONNIE HARDY, R.N.
8 Q. I WANT TO DIRECT YOUR ATTENTION TO THE 7TH OF JANUARY.
9 A. SAME STUFF, NURSES' NOTES?
10 Q. NO, I'M DIRECTING YOUR ATTENTION TO THE 7TH OF JANUARY.
11 DO YOU RECALL HAVING A CONVERSATION WITH MARY CRANE'S
12 DAUGHTERS?
13 A. YES.
14 Q. OKAY. AND THAT'S WHAT IS IN YOUR PROGRESS NOTES; IS
15 THAT RIGHT?
16 A. YES, SIR.
17 Q. IN TERMS OF YOUR RECOLLECTION OF THAT CONVERSATION, CAN
18 YOU RECALL SPECIFICALLY WHAT WAS SAID IN THAT CONVERSATION?
19 A. NOT SPECIFICALLY, BUT...
20 Q. CAN YOU RECALL THE SUBSTANCE OF WHAT WAS SAID?
21 A. YES, SIR.
22 Q. TELL US WHAT WAS SAID BY YOU AND BY THE DAUGHTERS AT
23 THAT TIME.
24 A. THAT WOULD HAVE BEEN THE DAY SHE WAS DYING. I SAID THAT
25 SHE WAS VERY ILL, I TOLD THEM THAT WE COULD PROVIDE COMFORT
4050
1 CARE, I THINK I TOLD THEM ABOUT DR. DIENHART'S ASSESSMENT.
2 THAT'S BASICALLY THE SUBSTANCE. I'M SURE I WOULD HAVE TOLD
3 THEM ABOUT ALL THE DIFFERENT PROBLEMS SHE WAS HAVING, THE
4 SODIUM, THE ELEVATED WHITE COUNT, HER OBVIOUS CONDITION.
5 Q. DO YOU RECALL TELLING KAREN BRINGHURST THAT YOU WOULD
6 PROVIDE MEDICATION OF ANY KIND THAT WOULD HASTEN THE
7 INEVITABLE?
8 A. NO.
9 Q. WHAT DO YOU RECALL SAYING REGARDING THE MEDICATION THAT
10 YOU WERE GOING TO ORDER AFTER THAT DISCUSSION?
11 A. THAT WE WOULD USE MORPHINE BUT NOT TO -- I NEVER SAID
12 ANYTHING ABOUT HASTENING THE INEVITABLE.
13 Q. DO YOU RECALL WHETHER YOU TOLD HER ABOUT ANY OF THE
14 RISKS OR CIRCUMSTANCES OF ORDERING MORPHINE?
15 A. NOT SPECIFICALLY.
16 Q. WHAT GENERALLY DO YOU RECALL?
17 A. BEST I CAN RECALL IS THAT THAT MORPHINE COULD DECREASE
18 RESPIRATION BUT THAT'S -- I DON'T REALLY HAVE A CLEAR
19 RECOLLECTION OF THAT WHOLE CONVERSATION. I JUST REMEMBER
20 TALKING WITH THEM. THE FAMILY WAS REALLY WELL AWARE OF WHAT
21 WAS GOING ON AND THEY WERE IN COMPLETE AGREEMENT THAT THERE
22 WAS NOT MUCH TO DO, THAT ALL WE COULD DO IS KEEP HER
23 COMFORTABLE AND THAT'S WHAT THEY WANTED.
24 Q. GIVEN THE CIRCUMSTANCES PRESENTED TO YOU AT THAT TIME
25 AND GIVEN WHAT YOU'VE JUST TESTIFIED TO, WHY DID YOU BELIEVE
4051
1 MORPHINE WAS APPROPRIATE TO ORDER AT THAT TIME?
2 A. WELL, ONCE AGAIN, SHE'S EXTREMELY DEHYDRATED, SHE'S
3 FEBRILE, SHE'S SEPTIC, THAT'S NOT A PLEASANT STATE TO BE IN,
4 SHE'S GOING TO BE DYING SOON. MORPHINE IS AN EXCELLENT
5 MEDICATION TO PREVENT PAIN AND SUFFERING. I JUST THOUGHT IT
6 WAS THE RIGHT THING TO DO.
7 Q. NOW, I WANT TO YOU NOW TURN TO -- YOU HAVE LYDIA SMITH'S
8 BINDER THERE. NOW, YOU WERE ASKED ABOUT WHETHER YOU BELIEVE
9 THE PSYCH MEDICATIONS CAUSED OR CONTRIBUTED TO HER DEATH.
10 WHY DO YOU BELIEVE THAT THE PSYCH MEDICATIONS FOR PATIENT
11 LYDIA SMITH WERE APPROPRIATE?
12 A. WELL, THROUGHOUT THE HOSPITALIZATION SHE MOST OF THE
13 TIME EXHIBITED A LOT OF AGITATION, IT WAS DANGEROUS TO HER,
14 IT WAS PREVENTING HER PLACEMENT ELSEWHERE, AND WE WERE IN A
15 HOSPITAL WHERE WE HAD 24-HOUR SUPERVISION OF THESE PATIENTS.
16 IF WE HAD ANY SYMPTOMS OF SIDE EFFECTS, I WOULD FIND OUT
17 ABOUT IT AND COULD DO SOMETHING ABOUT IT. I FOLLOWED THESE
18 PATIENTS EVERY DAY. I WAS IN THE HOSPITAL EVERY DAY TO
19 CHECK ON THINGS AND I USED MY BEST JUDGMENT ON THE
20 MEDICATIONS TO TRY AND HELP THE PATIENTS. I THINK THEY WERE
21 ALL PERFECTLY APPROPRIATE AND CERTAINLY I DON'T SEE HOW THEY
22 COULD HAVE HAD ANYTHING TO DO WITH THEIR DEATHS.
23 Q. SIMILARLY, YOU USED YOUR JUDGMENT CONCERNING YOUR
24 DETERMINATION THAT PATIENT LYDIA SMITH WAS DYING?
25 A. I DID. I MET WITH THE FAMILY AND WE DISCUSSED IT. I
4052
1 MEAN, THIS WAS A VERY SICK LADY. IN NOVEMBER THE PREVIOUS
2 DOCTOR HAD LABELED HER TERMINAL AND SENT HER TO THE NURSING
3 HOME FOR TERMINAL CARE. I -- I WAS FACED WITH A PATIENT WHO
4 WASN'T TAKING ANYTHING BY MOUTH AND WHO HAD LOST 8 POUNDS IN
5 THE HOSPITAL AND THEN LOST I THINK 30 IN THE TIME THE SIX
6 MONTHS BEFORE THAT APPROXIMATELY.
7 Q. WHY WAS THAT SIGNIFICANT TO YOU?
8 A. WELL, WHEN PEOPLE ARE DYING THEY START LOSING WEIGHT AND
9 WHEN THEY ARE DYING WITH DEMENTIA THEY LOSE WEIGHT. THE
10 WHOLE PICTURE WAS OF A LADY IN THE END STAGES OF DEMENTIA.
11 Q. AND WHY DO YOU SAY THAT?
12 A. HER DEMENTIA WAS SEVERE CLEARLY FROM HER BEHAVIOR AND
13 SHE QUIT EATING. SHE WAS IN MANY WAYS DYING.
14 Q. NOW, YOU WERE ASKED ABOUT SOME ENTRIES CONCERNING DATES
15 AND HER ACTIVITIES, WOULD YOU TURN TO THE NURSES' NOTES
16 SECTION, PLEASE. DO YOU HAVE MED-791 IN FRONT OF YOU WHICH
17 IS FOR THE 3RD?
18 A. YES, SIR.
19 Q. AND YOU WERE ASKED ABOUT THAT DAY, WERE YOU NOT?
20 A. I THINK SO.
21 Q. AND WERE YOU ASKED ABOUT THE ENTRIES REFLECTED ON 791?
22 A. NO, SIR.
23 Q. WHY DON'T YOU READ, PLEASE, WHAT IS STATED STARTING AT
24 11 TO 7 FREE TEXT WHAT IS STATED ON 1/3 OF '96.
25 A. OKAY. FREE TEXT: PATIENT VERY RESTLESS, SITTING UP IN
4053
1 BED, REPEATEDLY ATTEMPTING TO GET OUT OF BED, PATIENT UP,
2 AMBULATING IN HALL WITH ASSISTANCE, STRIKING OUT, KICKING AT
3 STAFF AND ATTEMPTING TO STEP ON STAFF. INTRAMUSCULAR HALDOL
4 GIVEN AS ORDERED FOR SEVERE AGITATION. PATIENT SLEPT
5 QUIETLY REMAINING IN THE NIGHT, RESPIRATIONS EVEN AND
6 UNLABORED.
7 Q. WHO SIGNED THAT NOTE?
8 A. TRACY SCHOLL.
9 Q. HOW ABOUT THE NEXT NOTE AT 1300?
10 A. PATIENT REFUSED MORNING MEDICATIONS, PATIENT HAS BEEN
11 VERY AGGRESSIVE, HITTING, KICKING, AND BITING STAFF, PATIENT
12 VERY DIFFICULT TO REDIRECT. AND THEN INTERVENTION:
13 SUPPORT, ONE-TO-ONE TIME, INTRAMUSCULAR MEDICATIONS, SAFE
14 ENVIRONMENT PROVIDED. RESPONSE: VERY AGGRESSIVE AND
15 AGITATIVE, PACING, IS VERY CONFUSED, NOT ORIENTED TO TIME,
16 PLACE OR PERSON. PLAN: MEDICATIONS AS PER DOCTOR, SAFE
17 THERAPEUTIC ENVIRONMENT, EARLENE COZZENS.
18 Q. THE NEXT ENTRY IS AT 8 O'CLOCK.
19 A. THIS IS A LATE ENTRY FROM THE MORNING. MEDICATION NOTE:
20 PATIENT REFUSED MORNING MEDICATIONS OR ANYTHING BY MOUTH.
21 AND IT'S CONTINUED, PLUS WAS TRYING TO HIT AND SPIT AT STAFF
22 AND OTHER PATIENTS. PATIENT IS MEDICATED WITH HALDOL
23 5 MILLIGRAMS INTRAMUSCULARLY.
24 Q. WHO SIGNED OFF ON THAT NOTE?
25 A. THAT ONE WAS LYNN LONG.
4054
1 Q. IT CONTINUES ON AND WOULD YOU READ IT TO THE END,
2 PLEASE.
3 A. OKAY. THE NEXT ENTRY IS 10 O'CLOCK, FREE TEXT: PATIENT
4 STILL REFUSING MEDICATION OR ANYTHING OFFERED BY STAFF, IN
5 DEMENTED DISORIENTED FASHION, MUTTERING INCOHERENTLY BUT
6 AUTOMATICALLY TRYING TO SLAP AWAY HAND OF STAFF. NO
7 DISCERNIBLE DECREASE IN AGITATION SINCE HALDOL
8 INTRAMUSCULARLY.
9 Q. IT GOES ON TO SAY AT 1200?
10 A. 1200 FREE TEXT: PATIENT'S AGITATION INCREASING,
11 HITTING, BITING, KICKING, SPITTING AT STAFF AND OTHER
12 PATIENTS. PATIENT MEDICATED WITH ATIVAN 2 MILLIGRAMS I.M.
13 WITH IMMEDIATE RESULTS. PATIENT CALM, NOT AGITATED OR
14 AGGRESSIVE. AND THEN THERE'S ONE LAST AT 1300, FREE TEXT:
15 PATIENT TOOK MORNING MEDICATION WITHOUT COMPLAINT.
16 Q. NOW YOU WERE ALSO ASKED ABOUT THE 4TH OF JANUARY IN THE
17 NURSES' NOTES ON CROSS-EXAMINATION. IF YOU TURN TO 794,
18 PLEASE.
19 A. OKAY.
20 Q. SPECIFICALLY AT THE TOP THERE'S A MED NOTE FOR 1/4/96 AT
21 4:45, DO YOU SEE THAT?
22 A. YES, SIR.
23 Q. WERE YOU ASKED TO READ THAT ON CROSS-EXAMINATION?
24 A. NO, I WAS ASKED ABOUT THIS LATER STUFF.
25 Q. PLEASE READ WHAT WAS CHARTED AT 4:45 IN THE MED-NOTE.
4055
1 A. AT 4:45 MED NOTE: PATIENT RESTLESS, TOSSING AND
2 TURNING, UP TO BATHROOM, BITING AT STAFF, STRIKING OUT, AND
3 KICKING, RETURNED TO BED AND INTRAMUSCULAR ATIVAN GIVEN AS
4 ORDERED.
5 Q. DO YOU BELIEVE THE ATIVAN GIVEN AT THAT TIME WAS
6 APPROPRIATE?
7 A. YES, SIR.
8 Q. AND WHY SO?
9 A. BECAUSE SHE WAS OUT OF CONTROL, SHE WAS AGGRESSIVE AND
10 SHE WAS ASSAULTIVE, AND SHE'S PROBABLY A DANGER TO HERSELF
11 AS WELL THE OTHER PEOPLE.
12 Q. NOW, I WANT TO YOU TURN TO AN ENTRY 1/5/96 MED-796.
13 A. OKAY.
14 Q. SPECIFICALLY THERE'S ANOTHER MED-NOTE UNDER THE
15 SIGNATURE TRACY SCHOLL AT 1:30, DO YOU SEE THAT?
16 A. YES, SIR.
17 Q. IT'S AT THE TOP?
18 A. RIGHT.
19 Q. WERE YOU ASKED ABOUT THAT ON CROSS-EXAMINATION?
20 A. NO, SIR.
21 Q. WHY DON'T YOU READ THAT, PLEASE.
22 A. MEDICATION ENTRY: PATIENT VERY AGITATED, MAKING
23 NUMEROUS ATTEMPTS TO GET OUT OF BED, STRIKING AT STAFF,
24 RESISTED ASSISTANCE TO BATHROOM. HALDOL, IT LOOKS LIKE,
25 1 MILLIGRAM INTRAMUSCULARLY GIVEN FOR SEVERE AGITATION.
4056
1 Q. AND WHO SIGNED THAT?
2 A. TRACY SCHOLL.
3 Q. DID YOU BELIEVE BASED UPON THE REVIEW OF WHAT YOU'VE
4 JUST READ THAT HALDOL WAS APPROPRIATE 1 MILLIGRAM I.M. AT
5 THAT TIME?
6 A. YOU KNOW, SIR, I THINK SHE GOT 5 MILLIGRAMS AT THAT TIME
7 IF YOU LOOK IN THE MEDICATION RECORD, AND I THINK THAT'S
8 APPROPRIATE.
9 Q. AND WHY DO YOU SAY THAT?
10 A. WELL, SHE HAD PUT ATIVAN -- SHE STRUCK THAT OUT AND PUT
11 HALDOL BUT I THINK SHE JUST -- SHE NEVER STRUCK OUT THE
12 1 MILLIGRAM THAT WOULD HAVE GONE WITH THE ATIVAN. BUT
13 ANYWAY, IN THE NEXT NOTE AT 2:30 IT SAYS, PATIENT HAS BEEN
14 SLEEPING QUIETLY SINCE 1:45, RESPIRATIONS EVEN AND
15 UNLABORED, SIDE RALES BOTH UP, BED CHECK MONITOR IN PLACE,
16 TRACY SCHOLL.
17 Q. NOW, WHY DON'T YOU PULL OUT THE BINDER FOR MR.
18 ALLDREDGE, PLEASE.
19 A. OKAY.
20 Q. TELL US, ROBERT, WHY AND WHAT YOU CONSIDERED THAT WENT
21 INTO YOUR JUDGMENT THAT YOU BELIEVE THAT MR. ENNIS ALLDREDGE
22 WAS DYING AS OF THE 13TH OF JANUARY OF 1996.
23 A. I SUSPECTED HE HAD A STROKE BEFORE HE CAME TO US. HE
24 HAD THIS ABRUPT CHANGE IN HIS BEHAVIOR, HE HAD ATAXIA AND
25 OTHER SIGNS OF POSSIBLE STROKE. WE GOT THIS M.R.I. WHICH
4057
1 SUGGESTED THAT, IN FACT, HE DID HAVE ONE. AND THEN HE
2 WASN'T TAKING FLUIDS, HIS GLUCOSES WERE UP AND DOWN AND I
3 HAD BEEN A DOCTOR FOR TEN YEARS OR SO BY THEN AND I HAD SEEN
4 A LOT OF PEOPLE GET ILL AND DIE AND HE LOOKED REALLY SICK.
5 I DON'T KNOW HOW TO DESCRIBE THAT EXACTLY, IT VARIES FROM
6 PATIENT TO PATIENT, BUT HE LOOKED LIKE HE WAS DOING BADLY.
7 I KNEW HE WAS REALLY SICK. HE HAD END STAGE LYMPHOMA,
8 HE HAD DEMENTIA WHICH IS TERMINAL AND HIS SODIUM WAS UP TO
9 148, HE WAS CLEARLY DEHYDRATED. ALL OF THESE THINGS PUT
10 TOGETHER EQUAL A PERSON WHO WITHOUT INTERVENTION IS
11 CERTAINLY TERMINAL. I SPOKE WITH HIS FAMILY -- I SPOKE WITH
12 ALL THESE FAMILIES. ALL THESE FAMILIES WERE ON BOARD WITH
13 ME UNDERSTANDING WHAT WAS GOING ON AND COMPLETELY WANTING
14 THEIR ELDER, THEIR LOVED ONE TO BE COMFORTABLE AT THE END OF
15 THEIR LIFE AND I DID WHAT I THOUGHT WAS RIGHT TO HELP THEM.
16 Q. YOU WERE ASKED ABOUT PSYCH MEDICATIONS FOR MR.
17 ALLDREDGE.
18 A. RIGHT.
19 Q. DO YOU BELIEVE THAT WHAT YOU ORDERED FOR HIM WAS
20 APPROPRIATE?
21 A. ABSOLUTELY.
22 Q. AND TELL US WHY YOU SAY THAT.
23 A. I HAD THE HISTORY OF A MAN WHO WAS COMPLETELY OUT OF
24 CONTROL, VERY DANGEROUS TO HIMSELF AND OTHERS AND I USED MY
25 BEST JUDGMENT TO PICK MEDICATIONS THAT WOULD CONTROL THOSE
4058
1 BEHAVIORS AND HIS SYMPTOMS.
2 Q. DO YOU BELIEVE THAT THE PSYCH MEDICATIONS CAUSED AND
3 CONTRIBUTED TO HIS DEATH?
4 A. NO, NO.
5 Q. AND WHY DO YOU SAY THAT?
6 A. THOSE WERE MEANT TO HELP HIM AND THEY DID SOMEWHAT AND
7 PSYCH MEDICATIONS DON'T CAUSE STROKES, THEY DON'T CAUSE
8 PROBLEMS WITH YOUR SODIUM AND YOUR GLUCOSE LEVELS. YOU
9 KNOW, THE PSYCH MEDICATIONS DIDN'T CAUSE HIS LYMPHOMA, THEY
10 DIDN'T CAUSE HIS DEMENTIA. THEY WERE TO TREAT THE DEMENTIA.
11 I DON'T SEE HOW THEY COULD HAVE HAD ANYTHING TO DO WITH HIS
12 DEATH.
13 Q. NOW YOU PRESCRIBED MORPHINE AT THE END; IS THAT RIGHT?
14 A. YES, I DID. AND ATIVAN.
15 Q. AND WHY DID YOU THINK THAT THE MORPHINE AND THE ATIVAN
16 WERE APPROPRIATE TO BE ORDERED AFTER THE 13TH?
17 A. IT WAS CLEAR THAT HE WAS GETTING DEHYDRATED ONCE AGAIN
18 EVERYBODY -- YOU KNOW, IT'S JUST VERY UNCOMFORTABLE TO DIE
19 FIRST AND I FELT LIKE GIVEN HIS PREVIOUS AGITATION THAT
20 THOSE WERE BOTH APPROPRIATE.
21 Q. YOU WERE ASKED A QUESTION ABOUT THE DISCONTINUANCE OF
22 THE I.V.
23 A. YES.
24 Q. THAT WAS ON THE 13TH?
25 A. RIGHT.
4059
1 Q. TELL US WHY DID YOU THAT.
2 A. I SPOKE WITH HIS FAMILY, I SPOKE WITH VONDA, I SPOKE
3 WITH THE FAMILY, THEY WANTED COMFORT CARE GIVEN. I.V.'S ARE
4 NOT PART OF COMFORT CARE. HE HAD A PREVIOUS -- I DON'T KNOW
5 WHAT IT WAS CALLED, I DON'T KNOW THE LEGALITIES, SOME SORT
6 OF LIVING WILL, THAT BASICALLY STATED THAT IF HE WAS EVER IN
7 THIS STATE TO LET HIM GO, GIVE HIM COMFORT CARE. IT
8 ACTUALLY USED THOSE WORDS, GIVE HIM COMFORT CARE AND
9 WHATEVER MEASURES ARE NEEDED TO PREVENT PAIN AND SUFFERING.
10 Q. YOU WERE ASKED ABOUT THE DECREASE OF THE INSULIN.
11 A. RIGHT.
12 Q. WHY DID YOU DO THAT?
13 A. AS PART OF DECREASING ALL OF HIS MEDS, I WAS GOING TO
14 TAKE HIM OFF ALL HIS MEDS. I DON'T REALLY KNOW WHY I
15 ONLY -- I MEAN, I COULD HAVE JUST STOPPED IT COMPLETELY
16 RIGHT THERE. I'M NOT SURE WHY I LEFT IT ON OTHER THAN HE
17 HAD DIABETES AND AS A DOCTOR IT'S REFLEXIVE TO TREAT IT.
18 Q. YOU ALSO DISCONTINUED ALL OF HIS MEDICATIONS AS OF THE
19 MORNING OF THE 13TH.
20 A. THE ORAL MEDICATIONS, BASICALLY.
21 Q. YES, TELL US WHY YOU DID THAT.
22 A. BECAUSE ONCE YOU ARE TERMINAL THERE'S NO POINT IN
23 CONTINUING ALL THE MEDICATIONS BY MOUTH. HE PROBABLY
24 WOULDN'T TAKE THEM ANYWAY, HE WASN'T TAKING THINGS BY MOUTH.
25 IT'S CLEARLY DOCUMENTED HE WAS SPITTING THINGS OUT AND
4060
1 KNOCKING PEOPLE'S HANDS AWAY WHEN THEY'D TRY TO GIVE HIM
2 ANYTHING, FOOD, WATER, ANYTHING.
3 MR. STIRBA: THAT'S ALL I HAVE. THANK YOU.
4 THE COURT: ANYTHING FURTHER, MR. WILSON?
5 MR. WILSON: JUST A MINUTE, YOUR HONOR, PLEASE.
6 NO, YOUR HONOR, I THINK NOT AT THIS TIME.
7 THE COURT: OKAY. YOU MAY STEP DOWN. DO YOU HAVE
8 ANY OTHER WITNESSES?
9 MR. STIRBA: WE WOULD JUST OFFER -- I THINK WE CAN
10 JUST OFFER AN EXHIBIT AT THIS TIME, YOUR HONOR, WITHOUT NEED
11 OF THE WITNESS.
12 THE COURT: OKAY.
13 MR. STIRBA: WE WOULD OFFER DEFENSE EXHIBIT 15.
14 THE COURT: IS THERE ANY OBJECTION TO DEFENSE
15 EXHIBIT 15?
16 MR. WILSON: YOUR HONOR, I DO HAVE AN OBJECTION TO
17 THE EXHIBIT.
18 THE COURT: OKAY. THEN LET'S -- WE CAN TALK ABOUT
19 THAT. NOW, WE'VE BEEN GOING A LITTLE OVER AN HOUR, LADIES
20 AND GENTLEMEN. SO LET'S TAKE --
21 MR. WILSON: NEVER MIND, YOUR HONOR, I DON'T HAVE
22 AN OBJECTION TO THE EXHIBIT.
23 THE COURT: BOY, THAT CHANGED QUICKLY. OKAY. WITH
24 THAT, THEN DEFENDANT'S EXHIBIT 15, IS THAT WHAT IT WAS?
25 MR. STIRBA: YES, IT IS, YOUR HONOR.
4061
1 THE COURT: IF YOU HAVE NO OBJECTION TO THAT, THAT
2 WILL BE RECEIVED. DOES THE DEFENSE REST NOW?
3 MR. STIRBA: YES. IF I MAY BRIEFLY, BEFORE I DO
4 THAT, IF I COULD JUST PUBLISH A PORTION OF THIS EXHIBIT TO
5 THE JURY, PLEASE.
6 THE COURT: OKAY.
7 MR. STIRBA: DEFENSE EXHIBIT 15 IS A PAIN
8 MEDICATION SUMMARY OF MARY CRANE FOR THE SANDY REGIONAL
9 HEALTH CENTER. AND ON PAGE FIVE OF THE EXHIBIT IT SHOWS
10 THAT FROM JUNE 27, 1995 TO JULY 25, 1995 SHE RECEIVED 30,
11 FIVE MILLIGRAM TABLETS OF HYPHEN SLASH VICODIN. ON 7/26/95
12 TO AUGUST 21ST, '95 SHE ALSO RECEIVED 30, FIVE MILLIGRAM
13 TABLETS OF HYPHEN-VICODIN. SIMILARLY FROM 8/22/95 TO
14 9/17/95 AND ACTUALLY THROUGH 11/22 OF '95 SHE RECEIVED EACH
15 MONTH 30, FIVE MILLIGRAM TABLETS OF HYPHEN SLASH VICODIN.
16 AND FINALLY FROM NOVEMBER 23, '95 THROUGH DECEMBER 27, '95
17 SHE RECEIVED 27, FIVE MILLIGRAM TABLETS OF HYPHEN-VICODIN.
18 WITH THAT, YOUR HONOR, THE DEFENSE RESTS.
19 THE COURT: OKAY. THEN LADIES AND GENTLEMEN, WHAT
20 WE WILL DO IS WE WILL TAKE OUR BREAK NOW FOR 15 MINUTES.
21 IT'S YOUR DUTY DURING THIS TIME NOT TO CONVERSE AMONG
22 YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE
23 ADDRESSED BY ANY OTHER PERSON ON THE SUBJECT OF THIS TRIAL
24 AND THAT IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
25 THEREON UNTIL THE CASE IS FINALLY SUBMITTED TO YOU. LET'S
4062
1 COME BACK AT TEN AFTER. WE'LL GO A LITTLE LONGER, LET'S GO
2 TEN AFTER 11 WE'LL BE BACK AT THAT POINT. SO WE'LL SEE YOU
3 THEN.
4 (WHEREUPON THE JURY WAS EXCUSED.)
5 THE COURT: YOU MAY BE SEATED AND THE RECORD WILL
6 REFLECT THAT THE JURY HAS LEFT THE COURTROOM. WILL YOU BE
7 READY AT 11:10 WITH YOUR FIRST REBUTTAL?
8 MR. WILSON: YOUR HONOR, WE RECEIVED A MOTION THIS
9 MORNING AS IT RELATED TO A NUMBER OF OUR REBUTTAL WITNESSES
10 I THINK AND I DON'T KNOW WHETHER THE COURT HAS HAD AN
11 OPPORTUNITY TO REVIEW THAT.
12 THE COURT: I HAVEN'T SEEN IT.
13 MR. MAY: IT WAS FAXED THIS MORNING, YOUR HONOR. I
14 HAVE HARD COPIES. IT WAS FAXED TO THE COURT THIS MORNING
15 ABOUT A LITTLE BEFORE SEVEN.
16 MR. WILSON: AND I GUESS WE REALLY NEED TO ADDRESS
17 THAT MOTION BEFORE WE --
18 THE COURT: WELL, OKAY. WELL, I WAS HERE AT SEVEN
19 BUT THE FAX IS OVER IN THE CLERK'S OFFICE SO I HAVEN'T SEEN
20 IT.
21 MR. WILSON: IF I MIGHT JUST -- AND PERHAPS, YOUR
22 HONOR, AND MAYBE -- I KNOW YOU'VE JUST EXCUSED THE JURY, BUT
23 I'M WONDERING IF IN ORDER TO APPROPRIATELY ADDRESS THAT
24 MOTION IF WE OUGHT NOT TO EXCUSE THEM FOR LUNCH, AN EARLY
25 LUNCH AND THEN MEET BACK HERE IN MAYBE AN HOUR TO ARGUE THE
4063
1 MOTION OR SOMETHING LIKE THAT.
2 THE COURT: YOU ARE SAYING EXCUSE THEM FOR LUNCH?
3 MR. WILSON: YEAH. AND THAT WAY WE COULD DEAL WITH
4 THE MOTION APPROPRIATELY BEFORE WE HAVE TO PUT ON ANY
5 WITNESSES.
6 THE COURT: OKAY. ALL RIGHT. ARE YOU IN AGREEMENT
7 WITH THAT?
8 MR. STIRBA: THAT'S FINE, JUDGE. I DO THINK IT
9 NEEDS TO BE ADDRESSED BEFORE WE GO FORWARD.
10 THE COURT: IS THE JURY -- ARE THEY OUTSIDE OR ARE
11 THEY --
12 THE BAILIFF: A COUPLE OF THEM.
13 THE COURT: WHY DON'T WE JUST TAKE A FIVE MINUTE
14 BREAK AND WE'LL ASK THEM TO COME IN IN FIVE MINUTES. OKAY,
15 THEN, LET'S DO THAT.
16 (A BRIEF RECESS WAS TAKEN.)
17 THE COURT: BEFORE WE BRING THE JURY IN, WE'RE HERE
18 OUTSIDE THE PRESENCE OF THE JURY. WHAT IS THE TIMING THAT
19 WE CAN TELL THE JURY TO COME BACK, I GUESS THAT'S THE ISSUE
20 THAT WE HAVE TO DEAL WITH? YOU KNOW, BECAUSE I DON'T HAVE
21 ANY PROBLEM WORKING THROUGH LUNCH TO DO THIS AND MR. WILSON
22 SAID HE WANTED -- DID HE SAY HE WANTED AN HOUR?
23 MS. BARLOW: YEAH, HE DID SAY HE WANTED AN HOUR
24 WHICH WOULD BE NOON.
25 THE COURT: OKAY. THEN SO HOW LONG DID YOU --
4064
1 MS. BARLOW: MAYBE HALF HOUR TO ARGUE IT.
2 THE COURT: SHOULD WE TELL THEM TO COME BACK AT ONE
3 BECAUSE THAT'S STILL TWO HOURS, WOULD THAT GIVE ENOUGH TIME?
4 WOULD 1 O'CLOCK BE OKAY?
5 MR. STIRBA: DARE I SAY 1:30, JUDGE, SO WE DON'T
6 HAVE ANY PROBLEM?
7 THE COURT: YEAH. WELL, WE'RE GOING TO 4:30 SO
8 THAT'S WHAT WE TOLD THEM TODAY SO THAT'S -- YOU TELL ME.
9 MS. BARLOW: ONE WOULD BE FINE WITH US.
10 THE COURT: OKAY. ALL RIGHT. THEN DO YOU WANT,
11 PARDON ME, TO HAVE THE JURY COME IN.
12 (WHEREUPON THE JURY ENTERS THE COURTROOM.)
13 THE COURT: PLEASE BE SEATED. THE RECORD WILL
14 REFLECT THAT THE JURY HAS RETURNED. LADIES AND GENTLEMEN,
15 WE TOLD YOU WE WERE GOING TO TAKE A LONGER BREAK AND THEN
16 AFTER YOU LEFT, COUNSEL AND I HAD A CHANCE TO DISCUSS SOME
17 THINGS THAT WE NEEDED TO DISCUSS BEFORE THE NEXT WITNESSES
18 ARE CALLED. SO WHAT WE HAVE DECIDED IS TO LET YOU GO TO
19 LUNCH NOW AND COME BACK AT ONE BECAUSE THERE'S SOME THINGS
20 THAT WE'RE GOING TO HAVE TO DISCUSS OVER THE LUNCH HOUR AND
21 WE WILL GO FROM ONE UNTIL 4:30.
22 SO WE WILL RELEASE YOU NOW TO GO. COME BACK HERE AT
23 1 O'CLOCK AND DURING THIS TIME DO NOT CONVERSE AMONG
24 YOURSELVES OR WITH ANYONE ELSE ABOUT THE SUBJECT OF THIS
25 TRIAL. IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
4065
1 UNTIL THE CASE IS FINALLY SUBMITTED TO YOU. AGAIN, REMEMBER
2 NOT TO LISTEN TO ANY RADIO, TELEVISION OR NEWS REPORTS,
3 NEWSPAPER OR OTHERWISE REGARDING THIS TRIAL SO WE WILL SEE
4 YOU BACK THEN AT 1 O'CLOCK.
5 (WHEREUPON THE JURY WAS EXCUSED.)
6 THE COURT: PLEASE BE SEATED. THE RECORD WILL
7 REFLECT THAT THE JURY HAS LEFT. SO WE'LL COME BACK HERE AT
8 12, IS THAT WHAT --
9 MR. STIRBA: COULD WE ACTUALLY COME BACK -- I THINK
10 WE CAN GET THIS DONE IN HALF AN HOUR. COULD WE SAY 12:20
11 AND THEN ARGUE IT?
12 MR. WILSON: IS THAT OKAY?
13 MS. BARLOW: THAT'S FINE.
14 THE COURT: OKAY. NO PROBLEM WITH THAT? LET'S
15 COME BACK AT 12:20.
16 MR. STIRBA: GREAT. THANK YOU.
17 (A BRIEF RECESS WAS HAD.)
18 (WHEREUPON, THE FOLLOWING SESSION
19 WAS REPORTED BY RODNEY FELSHAW.)
20
21
22
23
24
25
4066
1 THE COURT: THE RECORD WILL REFLECT THAT WE ARE
2 HERE WITHOUT THE JURY. I'VE BEEN GIVEN TWO MEMORANDA. ONE
3 IS ENTITLED A MEMORANDUM REGARDING EXCLUSION OF PLAINTIFF'S
4 REBUTTAL WITNESSES FILED BY THE DEFENDANT. THE OTHER IS THE
5 PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO EXCLUDE
6 REBUTTAL WITNESSES, ALONG WITH THE CASES THAT WERE ATTACHED.
7 I'VE READ BOTH OF THOSE. SO, WOULD YOU LIKE TO GO AHEAD,
8 MR. STIRBA?
9 MR. STIRBA: YES. THANK YOU, YOUR HONOR. I THINK
10 THERE'S PROBABLY NOT A WHOLE HECK OF A LOT OF DIFFERENCE IN
11 TERMS OF LAW HERE BETWEEN THE PARTIES. JUST REALLY HOW IT
12 COMES IN THE CONTEXT OF THIS CASE.
13 I THINK, TO HELP THE COURT, WHAT I'D LIKE TO DO IS
14 SEPARATE THIS OUT IN THESE CATEGORIES. WE HAVE FOUR
15 CATEGORIES OF POTENTIAL REBUTTAL WITNESSES. WE HAVE THE
16 EXPERTS, HARE, FEHLAUER AND CROOKSTON. WE HAVE THE
17 TREATERS, CLINGER, JENSEN AND SOUTHWORTH. WE HAVE DR. GREY.
18 AND I WANT TO PUT DR. KELLER IN A LITTLE BIT DIFFERENT
19 CATEGORY, ALTHOUGH HE'S CLEARLY A TREATING PHYSICIAN.
20 WHEN I SAW THAT DRS. CLINGER, JENSEN AND SOUTHWORTH
21 WERE GOING TO TESTIFY MY CONCERN WAS WHAT ARE THEY GOING TO
22 SAY. THEY WERE TREATING PHYSICIANS. THEY WERE CALLED BY
23 THE STATE IN THEIR CASE IN CHIEF. THEY WERE ASKED ALL THE
24 QUESTIONS ON DIRECT THAT THEY WERE ASKED. THEY WERE ASKED
25 ALL THE QUESTIONS ON CROSS THAT THEY WERE ASKED. THERE WAS
4067
1 REDIRECT, RECROSS. THEY'RE FACT WITNESSES AND THEY'RE DONE.
2 THE ONLY THING I THOUGHT MAYBE WAS GOING TO HAPPEN HERE WAS
3 GOING TO BE SOME ATTEMPT NOW TO RESURRECT THESE TREATING
4 PHYSICIANS AS EXPERTS. QUITE FRANKLY, I DON'T THINK YOU CAN
5 DO THAT UNDER THE CIRCUMSTANCES OF THIS CASE.
6 THE COURT WILL RECALL, THERE WAS AN ISSUE THERE BECAUSE
7 CLINGER CAME IN AND TESTIFIED HE DID THE M.R.I. AND THIS IS
8 THE REPORT HE CREATED. THEN THERE WAS A QUESTION PUT, WELL,
9 IN YOUR OPINION IS THIS SORT OF EVIDENCE OF STROKE. THEN
10 THERE WAS AN OBJECTION. THE COURT TOOK THE POSITION IF
11 THEY'RE GOING TO BE AN EXPERT WE NEED AN EXPERT REPORT. A
12 REPORT WASN'T PROVIDED BY MAY 5TH, PURSUANT TO THE COURT'S
13 SCHEDULING ORDER, THEREFORE I'M NOT GOING TO ALLOW HIM TO
14 TESTIFY AS AN EXPERT.
15 OTHER THAN THAT I DON'T KNOW WHAT THESE GUYS CAN OFFER
16 THAT THEY HAVEN'T ALREADY TESTIFIED TO. REBUTTAL ISN'T
17 BASICALLY REGOING OVER THE VERY THING THAT WE'VE DONE
18 BEFORE. NOR IS IT A WAY OF SOMEHOW MAKING YOUR REDIRECT
19 BETTER. IN OTHER WORDS, THEY WERE HERE. THEY WERE CALLED.
20 EVERYBODY HAD A FAIR SHOT AT THEM. THEY'RE DONE. SO THAT'S
21 OUR POSITION WITH RESPECT TO THOSE INDIVIDUALS.
22 AS FAR AS DR. KELLER IS CONCERNED, I WANT TO TREAT HIM
23 NEXT. HE'S IN A LITTLE BIT DIFFERENT CATEGORY BECAUSE HE IS
24 ALSO A TREATING PHYSICIAN. THE COURT MAY RECALL THAT HE'S
25 DR. WILDING'S PARTNER. HE TREATED ELLEN ANDERSON. HE WAS
4068
1 NOT NAMED AS A FACT WITNESS. THERE'S NO QUESTION THAT DR.
2 WILDING WAS NAMED AS A FACT WITNESS. THE FACT THAT THEY ARE
3 PARTNERS AND PRESUMABLY WILDING'S RECORDS WOULD HAVE BEEN
4 AVAILABLE TO THE STATE, THEY CERTAINLY COULD HAVE
5 ANTICIPATED, WITHOUT ANY QUESTION, THE NEED TO HAVE DR.
6 KELLER TESTIFY, BUT HE WASN'T NAMED. INSOFAR AS TRYING TO
7 RESURRECT HIM NOW IN REBUTTAL, THAT SEEMS ALSO TO BE
8 INCONSISTENT WITH THE COURT'S SCHEDULING ORDER INITIALLY.
9 SECONDLY, THE COURT MAY RECALL THAT THIS CAME UP IN THE
10 CASE IN CHIEF. WHEN WE INTRODUCED ESSENTIALLY DR. WILDING'S
11 RECORDS, THERE WAS REFERENCE TO THIS REPORT BY DR. KELLER.
12 THIS IS THE ONE WHERE HE SAYS POSSIBLE LUNG IN LEFT TUMOR.
13 THERE WAS AN INDICATION TO THE COURT AT THAT POINT,
14 WELL, IF THE COURT ALLOWS THIS HISTORICAL RECORD TO COME IN,
15 THEN WE'RE GOING TO HAVE TO CALL DR. KELLER. WELL, GUESS
16 WHAT, THEY DIDN'T CALL HIM. YOU CAN'T, WHERE YOU HAVE THAT
17 PARTICULAR PROBLEM, IF YOU WANT TO CALL IT A PROBLEM, COME
18 UP IN YOUR CHASE IN CHIEF, THEN SORT OF LAY BACK IN THE
19 WEEDS AND NOW TRY TO RESURRECT HIM AS A REBUTTAL WITNESS.
20 IT SEEMS TO ME THAT'S INCONSISTENT WITH THE RULES OF
21 REBUTTAL TESTIMONY.
22 AS FAR AS DR. GREY IS CONCERNED, IT'S THE SAME KIND OF
23 PROBLEM IN THAT DR. GREY WAS HERE. HE TESTIFIED AS TO THE
24 CAUSE OF DEATH AND HIS AUTOPSY WORK WITH RESPECT TO FOUR OF
25 THE PATIENTS. HE WAS FULLY EXAMINED ON DIRECT. HE WAS
4069
1 FULLY CROSSED. THERE WAS REDIRECT AND RECROSS. IT SEEMS TO
2 ME THAT HE DOESN'T HAVE ANYTHING MORE THAT LEGITIMATELY CAN
3 BE CONSIDERED REBUTTAL TESTIMONY.
4 I WOULD SUGGEST THAT THE PURPOSE OF CALLING HIM -- AND,
5 SEE, THE PROBLEM I HAVE IS THERE'S NO PROFFERS HERE. WE
6 JUST GET SORT OF GENERALIZED IDEAS OF LAW. THE REAL
7 CRITICAL ISSUE IS WHAT ARE THESE PEOPLE REALLY GOING TO
8 TESTIFY TO SO WE CAN MAKE INTELLIGENT JUDGMENTS AS TO
9 WHETHER THAT'S REMOTELY REBUTTAL TESTIMONY OR NOT.
10 I BELIEVE THAT PROBABLY WHY THEY WANT TO CALL DR. GREY
11 IS TO ADDRESS THIS ISSUE THAT HAS COME UP NOW. IT CAME UP
12 IN HIS CROSS-EXAMINATION AND CAME UP WITH RESPECT TO THE
13 TESTIMONY OF DR. ROTHFEDER. THAT IS WHETHER OR NOT HIS
14 AUTOPSY COULD FIND A STROKE CONCERNING HIS AUTOPSY OF MR.
15 ALLDREDGE.
16 THE PROBLEM WITH THAT IS THAT HE WAS IN FACT CROSSED ON
17 THAT VERY ISSUE. I ASKED HIM QUESTIONS GOING DIRECTLY TO
18 THE FINDINGS RELATING TO THE CIRCUMSTANCES OF MR. ALLDREDGE
19 AND THE FACT THAT THERE WAS SOME DETERIORATION OR
20 DEGRADATION OF THE BRAIN TISSUE AND WHAT IMPACT THAT WOULD
21 HAVE. AND THEN THERE WAS REDIRECT EXAMINATION, BUT
22 ESSENTIALLY THAT AREA WASN'T TOUCHED ON REDIRECT.
23 I'D SUGGEST THAT YOU CAN'T, BY BASICALLY NOT CONDUCTING
24 A FULL AND COMPLETE REDIRECT ON THE VERY ISSUE THAT IS
25 BEFORE THE COURT, NOW COME IN AND SAY, WELL, I CAN CALL HIM
4070
1 ON REBUTTAL. THAT ISN'T APPROPRIATE. REBUTTAL IS NOT A WAY
2 TO SOMEHOW BOOT STRAP YOURSELF IN TO SOME MORE EFFICIENT OR
3 BETTER PREPARED, OR WHATEVER YOU WANT TO SAY, FAILING OF
4 YOUR REDIRECT EXAMINATION. THAT'S NOT WHAT REBUTTAL IS
5 ABOUT. CERTAINLY, AS I SAY, THAT CAME UP IN CROSS. IT'S
6 NOT SOMETHING THAT WASN'T ANTICIPATED BECAUSE IT CAME UP IN
7 THE TRIAL.
8 AS FAR AS THE THREE EXPERTS ARE CONCERNED, I WASN'T
9 SURE WHETHER DR. CROOKSTON IS IN FACT GOING TO TESTIFY. I
10 DO THINK CERTAINLY THE LAW DOES ALLOW THAT DR. HARE AND DR.
11 FEHLAUER COULD COME IN AS EXPERTS AND PRESUMABLY TESTIFY TO
12 CERTAIN POINTS ON REBUTTAL. THE ONLY THING I WOULD LIKE TO
13 POINT OUT TO THE COURT, WHICH I KNOW THE COURT IS WELL AWARE
14 OF, IS THAT IT'S NOT SUPPOSED TO BE UNDULY REPETITIVE, NOT
15 SUPPOSED TO BE UNDULY CUMULATIVE. I REALIZE THAT THE
16 SUPREME COURT HAS SAID THAT TO A CERTAIN EXTENT SOME MODEST
17 REPETITION IS PERHAPS NOT ONLY ENVISIONED, BUT MAY BE
18 ALLOWABLE ON REBUTTAL, BUT CERTAINLY IT'S NOT A REHASHING OR
19 RESTATEMENT OF EVERYTHING THAT HAS GONE ON BEFORE.
20 OUR MAIN CONCERN IS, IT SEEMS TO ME, FOR PURPOSE OF
21 EXCLUSION, IS REALLY THE TREATERS, DR. GREY AND DR. KELLER.
22 I THINK, IN TERMS OF THE EXPERTS, WE PROBABLY WILL HAVE TO
23 SEE WHAT THEY SAY AND WHETHER OR NOT IT DOES BECOME UNDULY
24 REPETITIVE. THAT'S MY ARGUMENT, YOUR HONOR.
25 THE COURT: OKAY. MR. MAJOR.
4071
1 MR. MAJOR: THANK YOU, YOUR HONOR. I THINK THE
2 COURT IS WELL AWARE WE PRESENTED THE LAW TO THE COURT.
3 REBUTTAL IS BASICALLY TO SHOW OR MINIMIZE THE EFFECT OF THE
4 DEFENSE'S TESTIMONY. IT'S NOT NECESSARILY SOMETHING THAT WE
5 HAVE TO ANTICIPATE OR NOT ANTICIPATE AS FAR AS OUR CASE IN
6 CHIEF IS CONCERNED, BECAUSE YOU NEVER KNOW WHAT TYPE OF
7 TESTIMONY WILL BE BROUGHT OUT BY THE DEFENSE WITNESSES AND
8 WE HAVE THE RIGHT TO COME BACK, I BELIEVE, UNDER STATE LAW
9 AND THE CASE LAW, AND ATTEMPT TO EITHER REBUT THAT OR
10 MINIMIZE IT, EXPLAIN IT. I THINK THAT'S WHERE WE'RE AT
11 HERE.
12 JUST VERY BRIEFLY, I CAN GO THROUGH THE WAY THAT MR.
13 STIRBA LISTED THESE. AS TO THE TREATING PHYSICIANS, RIGHT
14 NOW I DON'T ANTICIPATE WE'LL BE CALLING DR. SOUTHWORTH, FOR
15 THE INFORMATION OF THE COURT. HOWEVER, DR. CLINGER AND DR.
16 JENSEN WE DO ANTICIPATE TO CALL.
17 DR. CLINGER WILL BE TESTIFYING IN REBUTTAL TO DR.
18 ROTHFEDER. DR. CLINGER DID TESTIFY CONCERNING THE M.R.I.
19 DR. ROTHFEDER INDICATED THAT HE'D VIEWED THE FILM, THE
20 M.R.I. FILM, ON ENNIS ALLDREDGE AND MADE A DETERMINATION.
21 WE ANTICIPATE CALLING DR. CLINGER BACK TO PRESENT THE ACTUAL
22 FILM AND EXPLAIN WHAT THE PROBLEMS WERE WITH THE FILM, WHY
23 THERE WAS THE SHADING, WHY THERE WAS THE MOVEMENT, WHAT
24 EFFECTS THAT HAD.
25 PAUL JENSEN, YOUR HONOR, IS TO BE CALLED --
4072
1 THE COURT: WITH DR. CLINGER, DIDN'T HE ALREADY
2 TESTIFY ABOUT THAT AND DOESN'T THE REPORT SAY IT WASN'T A
3 VERY GOOD FILM AND ALL OF THESE THINGS? I MEAN, ISN'T THAT
4 JUST ARGUMENT? WHAT IS CLINGER GOING TO REBUT THAT HE
5 HASN'T TESTIFIED TO?
6 MR. MAJOR: HE'LL PRODUCE THE ACTUAL FILM THAT DR.
7 ROTHFEDER RELIED ON AND SAY THIS IS WHY THERE WAS DIFFICULTY
8 IN READING THE FILM SO THE JURY CAN UNDERSTAND AND SEE
9 SPECIFICALLY WHAT THEY'RE TALKING ABOUT HERE. THAT WOULD BE
10 THE ANTICIPATION WITH DR. CLINGER.
11 WITH DR. JENSEN, YOUR HONOR, DR. JENSEN WAS CALLED AND
12 DID TESTIFY. HOWEVER, OUR ANTICIPATION WITH DR. JENSEN IS,
13 AND WE MADE THIS PROFFER IN THE CASE IN CHIEF, THAT HE HAS
14 HAD AN OPPORTUNITY AND DID THE M.R.I. OF JUDITH LARSEN, I
15 BELIEVE, IN DECEMBER. HE HAD AN OPPORTUNITY TO REVIEW THE
16 M.R.I. THAT WAS DONE IN SEPTEMBER, THE ONE THAT WAS DONE IN
17 AUGUST AND THE ONE DONE IN JANUARY.
18 IT'S ANTICIPATED THAT HE WILL TESTIFY THAT HE ALSO
19 REVIEWED THE FILM THAT WAS TAKEN OF JUDITH LARSEN IN
20 DECEMBER AND THE FILM THAT WAS REVIEWED IN -- THAT WAS TAKEN
21 IN SEPTEMBER. HE COMPARED THEM AND FOUND NO SIGNIFICANT
22 CHANGES.
23 HE'LL TESTIFY, I BELIEVE, THAT HE ALSO REVIEWED THE
24 RADIOLOGY REPORTS IN JANUARY, AUGUST, SEPTEMBER AND DECEMBER
25 AND FOUND NO SIGNIFICANT CHANGES FROM THE JANUARY M.R.I., IN
4073
1 REBUTTAL TO DR. ROTHFEDER WHO TESTIFIED HE REVIEWED THOSE
2 REPORTS AND FOUND THERE WAS THREE OR FOUR STROKES, AND I'M
3 NOT SURE WHAT IT WAS, BUT INDICATED THAT THERE WAS A STROKE
4 IN EACH ONE OF THOSE M.R.I.'S.
5 THE COURT: WON'T HE THEN BE GIVING AN EXPERT
6 OPINION, SAYING I REVIEWED THIS M.R.I., THIS M.R.I. AND THIS
7 M.R.I. AND IN MY OPINION THERE'S NO CHANGE?
8 MR. MAJOR: BASED ON HIS TRAINING OF 11 YEARS AS A
9 RADIOLOGIST.
10 THE COURT: I'M NOT SAYING HE'S NOT QUALIFIED, BUT
11 AREN'T WE BACK TO THE SAME ISSUE, WAS HE AN EXPERT OR WAS HE
12 A TREATER? DID HE GIVE AN EXPERT REPORT TO THE DEFENDANT 30
13 DAYS BEFORE THE TRIAL?
14 MR. MAJOR: IF IT'S REBUTTAL THEY DON'T HAVE TO.
15 IF WE CALL HIM AND DESIGNATE HIM AS A REBUTTAL EXPERT THEN
16 WE'RE NOT REQUIRED TO GIVE ANY NOTICE PRIOR TO THE TRIAL.
17 HE IS COMING IN BOTH AS A TREATER AND, I THINK, AS WE'VE
18 TALKED ABOUT BEFORE, AS A DOCTOR WHO HAS -- CAN HELP A
19 PARTICULAR SITUATION. IN THIS CASE IT DOESN'T HAVE TO BE AN
20 EXPERT. I MEAN, HIS TRAINING AND EXPERIENCE CAN GO TO THE
21 WEIGHT HE'LL PRODUCE ON THIS PARTICULAR CASE. THAT'S WHAT
22 DR. JENSEN WILL TESTIFY ABOUT.
23 AS TO DR. KELLER, YOUR HONOR, WE'RE STILL UNSURE
24 WHETHER WE CAN GET HIM DOWN HERE. BUT DR. KELLER,
25 BASICALLY, THE SITUATION WAS THAT THAT WAS RAISED --
4074
1 THE COURT: WHAT WILL DR. KELLER REBUT?
2 MR. MAJOR: HE'S GOING TO REBUT THE STATEMENT THAT
3 WAS MADE ON THE CROSS-EXAMINATION CONCERNING THE TUMOR AND
4 POSSIBLE PNEUMONIA THAT ELLEN ANDERSON HAD.
5 THE COURT: OKAY. BUT THE ONLY WITNESS THAT I
6 RECALL, THERE WAS ONE EXPERT THAT THE DEFENDANT CALLED THAT
7 SAID IT APPEARED TO BE A TUMOR IN DR. KELLER'S RECORDS, BUT
8 IT TURNED OUT TO NOT BE A TUMOR. SO WHAT ARE YOU REBUTTING?
9 MR. MAJOR: THEN DR. ROTHFEDER FURTHER TESTIFIED
10 THAT ELLEN ANDERSON HAD UNTREATED PNEUMONIA FROM NOVEMBER
11 18TH UNTIL SHE ENTERED THE HOSPITAL IN DECEMBER, BASED ON
12 THAT X-RAY THAT WAS TAKEN. HE OR THE RADIOLOGIST WOULD BE
13 CALLED IN TO TESTIFY THE CIRCUMSTANCES OF WHAT THAT X-RAY
14 SHOWED.
15 THE COURT: BUT THIS ISSUE WAS RAISED AT THE TIME.
16 I RECALL THIS ISSUE.
17 MR. MAJOR: YES.
18 THE COURT: AND YOU SAID AT THAT POINT THAT, OKAY,
19 WE'LL HAVE TO CALL DR. KELLER. I SAID THAT'S FINE. I
20 DIDN'T SAY YOU COULDN'T CALL HIM.
21 MR. MAJOR: AS I INTERPRETED WHAT THE COURT HAD
22 SAID, BECAUSE HE WASN'T ON OUR WITNESS LIST WE COULDN'T CALL
23 HIM AND WOULD HAVE TO CALL HIM ON REBUTTAL. THAT'S MY
24 RECOLLECTION OF WHAT HAPPENED. THAT'S WHY WE DIDN'T CALL
25 HIM EARLIER ON AS PART OF OUR DIRECT.
4075
1 THE COURT: SO WHO IS HE REBUTTING?
2 MR. MAJOR: DR. ROTHFEDER.
3 THE COURT: TO SAY WHAT?
4 MR. MAJOR: THE FACT THAT ELLEN ANDERSON DID NOT
5 HAVE -- BASED ON THIS X-RAY AND THE CLINICAL REVIEW OF THE
6 MEDICAL RECORDS AT THE PIONEER HOSPITAL, THAT SHE WOULDN'T
7 HAVE HAD PNEUMONIA ON THAT OCCASION ON NOVEMBER 18TH.
8 THE COURT: OKAY.
9 MR. MAJOR: THEN WE WOULD NEXT -- THAT COVERS THAT.
10 I WILL INDICATE TO THE COURT, SO FAR WE'VE NOT BEEN ABLE TO
11 GET DR. KELLER. I'M NOT SURE, IN THE TIME FRAME WE HAVE,
12 WHETHER HE'LL BE AVAILABLE TO US.
13 WE ALSO HAVE DR. GREY, YOUR HONOR. HE DID DO THE
14 AUTOPSIES. WE DO ANTICIPATE CALLING HIM IN REBUTTAL TO DR.
15 ROTHFEDER. HE WOULD BE REBUTTING THE SITUATION WITH THE
16 BRAIN, SPECIFICALLY THE TESTIMONY THAT DR. ROTHFEDER GAVE
17 CONCERNING THAT, REBUTTING THE CONDITION OF THE BRAIN AS DR.
18 ROTHFEDER SET IT FORTH.
19 THERE'S A NUMBER OF AREAS HE TALKED ABOUT. FOR
20 EXAMPLE, WITH ELLEN ANDERSON HE WILL TALK ABOUT, WE BELIEVE,
21 THE PNEUMONIA. IF SHE'D HAD UNTREATED PNEUMONIA ON NOVEMBER
22 18TH AND IT HAD GONE UNTREATED UNTIL SHE ENTERED THE
23 HOSPITAL IN DECEMBER, THAT THE PNEMONIA HE FOUND WOULD NOT
24 BE AS SMALL AS IT WAS, I GUESS YOU COULD SAY, IT WOULD BE A
25 LOT MORE SEVERE.
4076
1 DR. ROTHFEDER TESTIFIED THAT ENNIS ALLDREDGE HAD CANCER
2 AND THAT IT WAS AN END STAGE CANCER. DR. GREY WILL TESTIFY
3 THAT THAT'S NOT THE CASE. HE WILL REBUT A NUMBER OF THE
4 THINGS THAT DR. ROTHFEDER TESTIFIED TO.
5 AS FAR AS BRINGING OUT THOSE THINGS ON -- ANTICIPATING
6 THOSE THINGS IN DIRECT EXAMINATION, I THINK THE COURT WILL
7 ALSO REMEMBER THAT DR. ROTHFEDER TESTIFIED, OVER THE
8 OBJECTION OF THE STATE, AND OUR OBJECTION WAS THAT HE'D GONE
9 BEYOND WHAT HIS REPORT WAS. WE WERE NOT AWARE THAT DR.
10 ROTHFEDER WAS REVIEWING THE M.R.I. OF ENNIS ALLDREDGE. WE
11 WERE NOT AWARE THAT HE REVIEWED THE RADIOLOGY REPORTS ON
12 JUDITH LARSEN FROM JANUARY, AUGUST AND SEPTEMBER. IT'S NOT
13 IN THOSE REPORTS. SO WE WERE NOT ABLE TO ANTICIPATE THE
14 TESTIMONY OF DR. ROTHFEDER BECAUSE HE WENT BEYOND WHAT WAS
15 CONTAINED IN HIS SPECIFIC REPORT.
16 AS FAR AS THE OTHER EXPERTS ARE CONCERNED, YOUR HONOR,
17 THEIR REBUTTAL GOES TO THE STATE'S -- TO THE DEFENSE'S
18 EXPERTS. THEY WILL BE TESTIFYING ABOUT A NUMBER OF THINGS
19 THAT DR. SUPERNAW TALKED ABOUT. IT MAY BE REPETITIVE.
20 THE COURT: TELL ME WHO'S GOING TO TESTIFY ABOUT
21 WHAT ON THE OTHER EXPERTS?
22 MR. MAJOR: I'D HAVE TO REFER TO MS. BARLOW.
23 THE COURT: WHOEVER. I DON'T CARE. I JUST WANT TO
24 KNOW. LIKE IF IT'S IN REBUTTAL TO DR. SUPERNAW WHO WILL
25 TESTIFY AND WHAT ARE THEY REBUTTING?
4077
1 MS. BARLOW: I AM NOT SURE I CAN DO THAT OFF THE
2 TOP OF MY HEAD. I'LL HAVE TO THINK FOR A MINUTE, NOT BEING
3 EXPECTED TO RESPOND.
4 THE COURT: THE CONCERN I HAVE, EVERYBODY SAYS
5 HERE'S WHAT THE LAW IS. YOU HAVE TO PUT FLESH ON THE LAW.
6 THE FLESH IS WHO IS GOING TO TESTIFY AND WHAT ARE THEY
7 REBUTTING BEFORE YOU CAN APPLY THE LAW AS TO WHETHER IT
8 COULD BE ANTICIPATED OR WHETHER IT IS TRULY REBUTTAL. I
9 NEED TO KNOW WHO'S TESTIFYING. JUST TELLING ME THEY'RE
10 GOING TO REBUT THE DEFENDANT'S EXPERTS GIVES ME NOTHING.
11 MR. MAJOR: I THINK THE PROBLEM IS IT'S DIFFICULT,
12 AS MS. BARLOW IS EXPRESSING, TO DO THAT UNTIL WE ACTUALLY
13 GET THE WITNESSES ON AND GO QUESTION BY QUESTION. THERE
14 VERY WELL MAY BE QUESTIONS WHICH WILL BE ADMISSIBLE. MAYBE
15 THERE WILL BE SOME THAT ARE REPETITIVE.
16 THE COURT: WHAT WE'RE DOING RIGHT NOW, AS I
17 UNDERSTAND IT IN THIS MOTION, IS THAT WE'RE TRYING TO SAY
18 BEFORE WE GET THEM ON SHOULD THIS PERSON EVEN GET ON THE
19 STAND, BECAUSE IF THIS PERSON ISN'T GOING TO SAY I'M
20 REBUTTING THIS, THIS AND THIS, THAT WE COULDN'T ANTICIPATE
21 OR THAT WE'RE TRYING TO MINIMIZE.
22 WE'RE NOT JUST GOING TO GO -- WE'VE BEEN HERE FOR FIVE
23 WEEKS NOW. I CAN TELL YOU, IN THE LAST MORNING OF THIS DAY,
24 OR THE MORNING TODAY, I SAW A LOT OF YAWNING JURORS. WE'VE
25 BEEN HERE FOR FIVE WEEKS. THE QUESTION IS HOW MUCH DO WE
4078
1 DO? I NEED TO SAY IS IT REBUTTAL OR NOT? IF YOU CAN'T TELL
2 ME WHO IT'S REBUTTING, HOW CAN I MAKE A RULING ON THIS?
3 MR. MAJOR: I THINK THAT'S THE PROBLEM. THE STATE
4 HAS A FUNDAMENTAL RIGHT TO PUT ON ITS CASE AND TO HAVE A
5 FAIR TRIAL. I THINK THAT THE LAW BASICALLY ANTICIPATES THAT
6 IT HAS TO GO ALMOST A QUESTION BY QUESTION BASIS WITH THE
7 EXPERTS.
8 THE COURT: IF YOU CAN'T TELL ME -- IF YOU'RE
9 TELLING ME YOU CAN'T TELL WHAT THESE PEOPLE ARE GOING TO
10 REBUT, THEN WE'RE GOING ON A FISHING EXPEDITION AND SEEING
11 IF WE CAN GET SOMETHING. YOU HAVE TO BE ABLE TO TELL ME WHO
12 IS GOING TO TALK AND WHAT THEY'RE GOING TO SAY AND WHO ARE
13 THEY REBUTTING.
14 IF YOU HAVE SUPERNAW, HE WAS A PHARMACOLOGIST. HE
15 TALKED ABOUT WHEN MORPHINE WAS INJECTED HOW LONG IT WOULD BE
16 IN THE BODY, HOW MUCH PERCENT WAS THERE. IS SOMEBODY GOING
17 TO COME IN AND SAY THAT'S WRONG, ONE OF THESE EXPERTS?
18 MR. MAJOR: THAT IS A PART OF OUR ANTICIPATION.
19 THE COURT: WHO WILL IT BE?
20 MS. BARLOW: DR. FEHLAUER AND HARE WILL TESTIFY TO
21 THAT. DR. HARE IS A PHARMACOLOGIST. THEY CAN TESTIFY THAT
22 THE DURATION OF EFFECT IS NOT AS CUT AND DRIED, AS SHORT, AS
23 DR. SUPERNAW TESTIFIED TO.
24 THE COURT: REFRESH MY MEMORY, BUT DID WE NOT SIT
25 THROUGH DR. FEHLAUER FOR ALMOST A DAY AND A HALF AND WENT
4079
1 PAINFULLY THROUGH ALL OF THAT? HALF LIVES, TIME, ALL OF
2 THOSE THINGS? HASN'T THAT BEEN GONE OVER?
3 MS. BARLOW: WE DID.
4 THE COURT: AND THEN THE DEFENDANT GAVE THEIR SLANT
5 ON THAT AND NOW ARE YOU GOING TO COME BACK AND SAY REMEMBER
6 OUR SLANT?
7 MR. MAJOR: BUT WHEN YOU COME BACK AND SAY REMEMBER
8 OUR SLANT, THAT'S IN SPECIFIC REGARD TO WHAT THE DEFENSE
9 TESTIFIED TO. I MEAN, WHEN FEHLAUER AND DR. HARE TESTIFIED
10 IT WAS A GENERAL OVERALL TYPE OF SITUATION. WHEN YOU DO A
11 REBUTTAL YOU COME BACK TO DO A SPECIFIC THING.
12 DR. SUPERNAW TESTIFIED THAT IT WAS A ONE HOUR PEAK.
13 OUR EXPERTS CAN COME BACK AND SAY MAYBE A ONE HOUR PEAK, BUT
14 YOU HAVE TO CONSIDER ALL OF THE PHYSICAL PROBLEMS THAT THESE
15 PATIENTS HAD. HERE'S WHAT THE EXPERTS SAY AS FAR AS WHETHER
16 IT'S A ONE HOUR, TWO HOUR, THREE HOUR. YOU GET VERY
17 SPECIFIC ON REBUTTAL VERSUS A GENERAL SITUATION ON THE CASE
18 IN CHIEF.
19 MS. BARLOW: FOR EXAMPLE, I THINK -- I CAN'T
20 REMEMBER NOW IF IT WAS DR. SUPERNAW WHO TESTIFIED THAT IT
21 WOULD BE TWO HOURS FOR HALF LIFE OF MORPHINE UNLESS ONE'S
22 LIVER OR KIDNEYS WERE BAD. THEN HE SAID HE DIDN'T THINK
23 ANYBODY HERE HAD ANY BAD KIDNEYS OR BAD LIVER. DR. FEHLAUER
24 CAN COME IN AND TESTIFY FROM THE LAB REPORTS ABOUT SOME
25 PROBLEMS WITH LIVER AND KIDNEY IN THESE PATIENTS. WE WOULD
4080
1 LIKE TO HAVE THAT KIND OF MATERIAL COME IN.
2 DR. FEHLAUER WE'D LIKE TO HAVE TESTIFY ABOUT DEMENTIA.
3 HE WAS PRECLUDED FROM TESTIFYING ABOUT IT. BUT IN RESPONSE
4 TO DR. HERBST'S TESTIMONY, WE WOULD LIKE TO BE ABLE TO REBUT
5 SOME OF THE FACTS SHE PRESENTED ABOUT DEMENTIA.
6 THE COURT: WHAT ABOUT DR. CROOKSTON?
7 MR. WILSON: I DON'T KNOW. WAS HE ON OUR LIST
8 TODAY?
9 MR. MAJOR: I BELIEVE WE DID.
10 THE COURT: I'M TALKING ABOUT THE LIST THAT YOU
11 GAVE ME YESTERDAY. IT SAYS DR. HARE, DR. FEHLAUER, DR.
12 CLINGER, DOCTOR JENSEN, DR. GREY, DR. KELLER, DR. CROOKSTON.
13 MR. WILSON: IN RESPECT TO DR. CROOKSTON, YOUR
14 HONOR, I THINK HIS SPECIFIC REBUTTAL TESTIMONY WOULD RELATE
15 TO THE PSYCHIATRIC AREA AS TO THE TESTIMONY OF DR. WEITZEL
16 CONCERNING THE EFFECTS OF THESE PSYCHOTROPIC MEDICATIONS,
17 SPECIFICALLY AS TO IMPACT ON BODY ORGANS AND DAMAGE THAT CAN
18 BE DONE TO BODY ORGANS; AND ALSO AS TO THEIR ABILITY TO
19 INTERACT WITH THE MEDICATIONS IN A LOT LONGER TIME.
20 I GUESS, YOUR HONOR, I CAN APPRECIATE THE COURT'S
21 DILEMMA AND DESIRE TO HAVE SPECIFIC PROFFERS. I APOLOGIZE
22 THAT WE HAVEN'T GOT THOSE READY, BUT WE'RE ANTICIPATING A
23 NUMBER OF AREAS THAT WE WOULD GET INTO. FOR INSTANCE, ON
24 DR. HARE, THERE WAS A NUMBER OF QUESTIONS THAT WE WANTED HIM
25 TO COME BACK ON IN RESPECT TO DR. WEITZEL'S TESTIMONY AS TO
4081
1 THE ADMINISTRATION OF MORPHINE AND ITS EFFECTS, AGAIN, AND
2 THE LONG-TERM DURATION OF THOSE EFFECTS.
3 THE COURT: DIDN'T DR. HARE TESTIFY ABOUT THAT?
4 MR. WILSON: HE TESTIFIED AS TO SOME OF THOSE
5 THINGS, BUT WE'VE ALSO GOT TESTIMONY FROM DEFENSE EXPERTS
6 THAT ARE SIGNIFICANTLY CONTRARY AND I THINK IT'S IMPORTANT
7 FOR US TO BE ABLE TO HAVE THE OPPORTUNITY TO RESPOND TO THAT
8 APPROPRIATELY.
9 I CAN RELATE TO THE COURT THAT WE DON'T ANTICIPATE THAT
10 THESE WILL BE LONG DRAWN OUT TESTIMONIES. I ANTICIPATE THAT
11 WE SHOULD BE ABLE TO EXPEDITE THIS AND STILL CONCLUDE THESE
12 PROCEEDINGS APPROPRIATELY BY TOMORROW.
13 THE COURT: WHO DO WE HAVE HERE READY TO GO TODAY?
14 MR. WILSON: WE'VE GOT DR. CLINGER AND I SENT THE
15 OTHERS AWAY AND INDICATED -- THEY'RE WAITING BY THEIR PAGERS
16 AND CAN BE HERE IN 20 MINUTES. IF THE COURT WILL ALLOW US
17 THE OPPORTUNITY, I'LL GO HAVE OUR SECRETARY PAGE THEM SO
18 THAT WE CAN GET THEM RIGHT HERE.
19 THE COURT: IS DR. CLINGER OR SOMEBODY ELSE HERE
20 NOW?
21 MR. WILSON: DOCTOR CLINGER AND DR. JENSEN.
22 MR. MAJOR: THOSE ARE THE TWO THAT WE PROFFERED TO
23 THE COURT AS TO THEIR TESTIMONY.
24 MR. WILSON: WE HAVE DR. HARE COMING LATER THIS
25 AFTERNOON. I THINK THERE WERE A NUMBER OF OTHERS THAT WE'VE
4082
1 GOT LINED UP, YOUR HONOR.
2 THE COURT: OKAY. ANY RESPONSE?
3 MR. STIRBA: BRIEFLY. I THINK THE PROFFERS ARE
4 CRITICAL BECAUSE I THINK THE COURT IS QUITE RIGHT. UNDER
5 TURNER VERSUS NELSON, I DON'T SEE HOW THE COURT'S IN A
6 POSITION TO REALLY DETERMINE WHETHER OR NOT IT'S LEGITIMATE
7 REBUTTAL TESTIMONY.
8 FOR EXAMPLE, DR. HARE, IF I UNDERSTOOD WHAT WAS JUST
9 TOLD TO THE COURT, THAT WAS AN ISSUE CREATED BY THE STATE.
10 I MEAN, YEAH, IF THE COURT WILL RECALL, THIS IS -- HERE IS
11 WHAT HE TESTIFIED TO ON DIRECT. THEN DR. WEITZEL TAKES THE
12 STAND AND COUNSEL ASKED HIM WHAT DO YOU THINK OF THIS. I
13 DIDN'T ASK HIM ANYTHING ABOUT THAT. HE DIDN'T TESTIFY ONE
14 THING ABOUT LONG-TERM EFFECTS OF MORPHINE OR ANYTHING LIKE
15 THAT. YOU CAN'T NOW SAY, OKAY, NOW THAT WE BROUGHT THAT
16 ISSUE INTO PLAY AGAIN, NOW WE CAN BRING DR. HARE BACK TO SAY
17 THE SAME THING HE SAID BEFORE.
18 THE OTHER CONCERN I HAVE ABOUT DR. HARE, HE'S SITTING
19 IN THAT COURTROOM AND I HAVE SOME REAL CONCERNS THAT WHAT
20 HE'S GOING TO END UP DOING IS HE'S GOING TO ACT LIKE HE'S
21 COMMENTING ON THE TESTIMONY OF DR. WEITZEL, WHICH IS TOTALLY
22 INAPPROPRIATE IN ANY EVENT.
23 SO RIGHT NOW, BASED UPON THE PROFFER FROM COUNSEL, I
24 DON'T SEE WHAT IT IS THAT COULD NOT HAVE BEEN REASONABLY
25 ANTICIPATED PRIOR TO TRIAL. I MEAN, HARE TESTIFIED TO IT.
4083
1 WE NEVER GOT INTO IT WITH DR. WEITZEL. THEY GET INTO IT.
2 YOU CAN'T CREATE THE ISSUE AND THEN SAY NOW WE CAN BRING IN
3 REBUTTAL TESTIMONY. NOT LIKE THAT. SO I HAVE SOME REAL
4 CONCERNS ABOUT DR. HARE.
5 I DO THINK TURNER VERSUS NELSON CONTROLS. I THINK THE
6 PROFFERS HAVE TO BE CLEAR AND SPECIFIC FOR THE COURT TO MAKE
7 A RATIONAL DECISION.
8 THE COURT: I'M GOING TO TAKE A FEW MINUTES AND
9 LOOK AT THIS AND THEN MAKE A DECISION.
10 (SHORT RECESS.)
11 THE COURT: WHERE IS MR. WILSON?
12 MR. MAJOR: I THINK HE'S ATTEMPTING TO CONTACT DR.
13 HARE, YOUR HONOR.
14 THE COURT: ALL RIGHT. HERE'S WHAT I'M GOING TO
15 DO. FIRST OF ALL, AS TO DR. CLINGER, DR. JENSEN AND DR.
16 KELLER, FROM THE PROFFER THAT HAS BEEN MADE I DON'T THINK
17 THOSE ARE ISSUES THAT ARE REALLY -- I THINK THEY'VE
18 TESTIFIED ABOUT THESE ISSUES. I DON'T THINK THAT'S
19 REBUTTAL.
20 AS TO DR. GREY, DR. HARE, DR. FEHLAUER AND DR.
21 CROOKSTON, IS THAT EVERYBODY ELSE?
22 MR. STIRBA: DID YOU INCLUDE KELLER, YOUR HONOR, IN
23 THE FIRST BATCH?
24 THE COURT: YES. KELLER, JENSEN, CLINGER AND
25 SOUTHWORTH, IF HE WAS IN THERE, BUT I HEARD HE WOULDN'T BE,
4084
1 ARE NOT GOING TO BE REBUTTAL WITNESSES.
2 AS TO THE EXPERTS, DR. GREY, DR. HARE, DR. FEHLAUER,
3 DR. CROOKSTON, I HAVEN'T BEEN GIVEN WHAT I THINK IS A GREAT
4 PROFFER, BUT I'M NOT GOING TO PREVENT THEM FROM BEING CALLED
5 TO OFFER REBUTTAL TESTIMONY. I WILL SAY THAT IF WE GET ANY
6 ONE OF THOSE EXPERTS ON THE STAND AND THEY BASICALLY START
7 TO MEANDER AND IT'S NOT RIGHT TO THE POINT, HERE'S AN ISSUE,
8 YOU KNOW, TELL US ABOUT IT, BOOM, BOOM. I'M NOT GOING TO
9 SIT HERE FOR THREE OR FOUR HOURS REMINDING THEM THAT DR.
10 GREY IS THE MEDICAL EXAMINER AND HE'S REVIEWED THESE BODIES.
11 GET RIGHT TO THE PNEUMONIA IN ANDERSON, RIGHT TO END STAGE
12 CANCER IN MR. ALLDREDGE, ET CETERA.
13 SO, WE'LL HAVE THEM DO THAT THAT WAY. THE SAME THING
14 WITH DR. FEHLAUER, IF HE'S TALKING ABOUT LIVER OR KIDNEYS,
15 WHATEVER ELSE, GET RIGHT TO THE POINT. THE WAY I VIEW THIS,
16 I BELIEVE THE JURY HAS HEARD PLENTY OF TESTIMONY. THEY
17 NEED -- WE NEED TO HELP THEM, ASSIST THEM, IN MAKING THEIR
18 DECISION, BUT WE'RE NOT GOING TO RETRY THE CASE.
19 SO, WITH THAT IN MIND, WE ASKED THE JURY TO BE BACK AT
20 ONE. MR. WILSON IS TRYING TO CALL ONE OF THE WITNESSES NOW?
21 MR. MAJOR: YES. WE HAD DR. CLINGER AND --
22 THE COURT: I UNDERSTAND THAT.
23 MR. MAJOR: SO IF WE CAN HAVE FIVE OR TEN MINUTES
24 TO SEE WHERE WE'RE AT?
25 THE COURT: OKAY. LET THE CLERK KNOW AND WE'LL LET
4085
1 THE JURY KNOW THAT THERE'S GOING TO BE A SHORT DELAY.
2 MR. MAJOR: THANK YOU, JUDGE.
3 (SHORT RECESS.)
4 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
5 HAS RETURNED. MR. WILSON, IF YOU'D LIKE TO CALL YOUR FIRST
6 REBUTTAL WITNESS.
7 MR. WILSON: THANK YOU, YOUR HONOR. WE'D CALL DR.
8 BRADFORD HARE TO THE STAND AT THIS TIME.
9 BRADFORD HARE,
10 BEING PREVIOUSLY SWORN, WAS EXAMINED AND TESTIFIED
11 AS FOLLOWS:
12 DIRECT EXAMINATION (REBUTTAL)
13 BY MR. WILSON:
14 Q. DOCTOR, YOU'VE BEEN PREVIOUSLY SWORN. YOU'RE UNDER OATH
15 STILL, YOU UNDERSTAND THAT?
16 A. I DO.
17 Q. OKAY. STATE YOUR FULL NAME FOR THE RECORD, PLEASE.
18 A. BRADFORD D. HARE.
19 Q. AND YOUR PLACE OF EMPLOYMENT, SIR?
20 A. UNIVERSITY OF UTAH.
21 Q. OKAY. PREVIOUSLY YOU TESTIFIED IN THIS PROCEEDING, DID
22 YOU NOT?
23 A. I DID.
24 Q. HAVE YOU HAD OCCASION SINCE THAT TIME TO REVIEW
25 TRANSCRIPTS RELATING TO THE TESTIMONY OF CERTAIN EXPERTS ON
4086
1 BEHALF OF THE DEFENDANT?
2 A. I HAVE.
3 Q. AND CAN YOU TELL US WHAT TRANSCRIPTS YOU'VE REVIEWED IN
4 CONNECTION WITH PREPARATION FOR REBUTTAL TESTIMONY?
5 A. I REVIEWED THOSE OF DR. HILL AND DR. ROTHFEDER.
6 Q. OKAY. YOU WERE ALSO PRESENT IN COURT YESTERDAY FOR
7 CERTAIN PARTS OF THE TESTIMONY OF DR. WEITZEL, IS THAT
8 CORRECT?
9 A. THAT'S CORRECT.
10 Q. OKAY. NOW, PREVIOUSLY, DR. HARE, YOU TESTIFIED AS IT
11 RELATED TO THE USE OF THE DRUG MORPHINE, IS THAT CORRECT?
12 A. I DID.
13 Q. SOME OF THE DEFENDANT'S EXPERTS HAVE TESTIFIED
14 CONCERNING THE MORPHINE THAT ELLEN ANDERSON RECEIVED AT 3:30
15 ON THE 30TH COULD NOT HAVE CONTRIBUTED TO HER DEATH AT 8:55
16 IN THE MORNING. DID YOU SEE OR REVIEW TESTIMONY TO THAT
17 EFFECT?
18 A. YES, I DID.
19 Q. IS THERE ANY EVIDENCE, DOCTOR, IN THE NURSE'S NOTES THAT
20 THAT FIRST DOSE OF MORPHINE SHE HAD AT 1930 WAS IMPACTING
21 HER SOMETIME LATER?
22 A. ABSOLUTELY. VERY CLEAR INDICATIONS.
23 Q. WHAT WERE THOSE INDICATIONS?
24 A. THE SET OF VITAL SIGNS OBTAINED AT ABOUT ONE O'CLOCK IN
25 THE MORNING CLEARLY SHOWED THAT HER BLOOD PRESSURE WAS VERY
4087
1 LOW, HER MENTAL STATUS IS DRAMATICALLY DEPRESSED. SO I
2 THINK IT'S VERY CLEAR THAT EVEN SEVERAL HOURS AFTER SHE'S
3 DRAMATICALLY AFFECTED BY THAT.
4 Q. WOULD THE RESPIRATION RATE OF EIGHT TO 16 REFLECT ANY --
5 IS THAT OF ANY SIGNIFICANCE IN YOUR FINDINGS?
6 A. UNFORTUNATELY, UNDER THE CIRCUMSTANCES, THE VITAL SIGNS
7 WERE OBTAINED VERY INFREQUENTLY, ONLY EVERY EIGHT HOURS. SO
8 WHEN A FIGURE LIKE THAT IS INCLUDED IN THE CHART IT SUGGESTS
9 THAT OVER AN EIGHT HOUR PERIOD THE RESPIRATIONS VARIED FROM
10 EIGHT TO 16. SO A PATIENT WITH A DEPRESSED RESPIRATION FOR
11 EVEN A COUPLE OF HOURS CAN BE IN GREAT TROUBLE. SO THOSE
12 SORTS OF NUMBERS, YOU KNOW, DON'T TELL US THAT AN AVERAGE
13 NUMBER IS ACCEPTABLE.
14 Q. NOW, THIS WOULD BE -- IF THE SHOT WAS ADMINISTERED AT
15 1930 HOURS AND THESE RATES WERE REGISTERED AT ONE O'CLOCK IN
16 THE MORNING, HOW MANY HOURS LATER ARE WE TALKING ABOUT?
17 A. THAT WOULD BE ABOUT SIX HOURS OR SO LATER.
18 Q. OKAY. SO IN YOUR OPINION WAS THE FIRST DOSE, THEN,
19 IMPACTING HER AT THAT TIME?
20 A. I THINK IT'S VERY CLEAR THAT HER VITAL SIGNS WERE STILL
21 VERY MUCH AFFECTED. SINCE THAT WAS THE ONLY TREATMENT, THE
22 ONLY THING THAT HAD CHANGED FROM THE TIME OF ADMISSION, I
23 THINK IT'S VERY CLEAR THAT THAT DOSE WAS MUCH AFFECTING HER.
24 Q. OKAY. THE DEFENDANT TESTIFIED AS TO AVERAGING THE RANGE
25 OF RESPIRATIONS BETWEEN EIGHT AND 16, BEING 12. IS
4088
1 AVERAGING A RANGE OF RESPIRATIONS A VALID WAY TO TELL IF A
2 PATIENT IS RECEIVING ADEQUATE OXYGENATION?
3 MR. STIRBA: I WOULD OBJECT. THAT MISCHARACTERIZES
4 THE TESTIMONY. I OBJECT TO THE FORM OF THE QUESTION.
5 THE COURT: DO YOU WANT TO REPHRASE IT?
6 Q. (BY MR. WILSON) LET ME REPHRASE IT THIS WAY. CAN YOU
7 AVERAGE A RANGE OF RESPIRATIONS, DOCTOR?
8 A. IT IS NOT VERY VALID. I THINK IT'S MUCH MORE IMPORTANT
9 TO KNOW AT A CERTAIN TIME WHAT THE ACTUAL RESPIRATIONS ARE.
10 SO WE'RE TALKING A RANGE OF EIGHT TO 16 OVER AN EIGHT HOUR
11 PERIOD. THAT COULD MEAN AT CERTAIN TIMES THAT THERE ARE
12 VERY LONG PERIODS OF SIGNIFICANTLY DEPRESSED RESPIRATIONS.
13 THAT CERTAINLY CAN'T BE IGNORED.
14 Q. YOU ALSO REVIEWED HER E.K.G. RESULTS, DID YOU NOT?
15 A. I DID.
16 Q. AND DID THE E.K.G. EVIDENCE ANY SIGNS OF MORPHINE
17 TOXICITY TO YOU?
18 MR. STIRBA: I'LL OBJECT. IT'S CUMULATIVE, YOUR
19 HONOR. HE'S ALREADY TESTIFIED TO IT ON HIS INITIAL
20 TESTIMONY.
21 THE COURT: I'LL ALLOW THAT QUESTION, BUT THEN MOVE
22 ON.
23 Q. (BY MR. WILSON) DID THE E.K.G. EVIDENCE ANY SIGNS OF
24 MORPHINE TOXICITY?
25 A. YES, I THINK IT DID.
4089
1 Q. WHAT WAS THAT, SIR?
2 A. AGAIN, THERE ARE CLEAR INDICATIONS THAT THE BLOOD
3 PRESSURE WAS DRAMATICALLY REDUCED, THE RESPIRATION RATE WAS
4 DRAMATICALLY REDUCED. THE HEART WAS LIKELY NOT GETTING
5 ENOUGH OXYGEN AFTER THE MORPHINE AND AS A RESULT THE E.K.G.
6 WAS ABNORMAL.
7 Q. OKAY. CAN YOU TELL US, DOCTOR, THE SECOND SHOT WAS
8 ADMINISTERED AT 3:30 AND THE TIME OF DEATH WAS 8:55. IS
9 THAT CONSISTENT WITH THE SECOND SHOT?
10 A. YES, IT IS. AGAIN, WE HAVE THE EVIDENCE FROM THE FIRST
11 SHOT --
12 MR. STIRBA: I'LL OBJECT HERE. IT'S NOT RESPONSIVE
13 TO THE QUESTION. THERE'S NO PENDING QUESTION.
14 THE COURT: ASK HIM A QUESTION.
15 Q. (BY MR. WILSON) DID THE SECOND SHOT -- DID THE TIME OF
16 DEATH, IN RELATIONSHIP TO THE SECOND SHOT, BEAR ANY
17 SIGNIFICANCE TO YOU AS TO MORPHINE TOXICITY?
18 A. YES.
19 Q. OKAY. WHAT WAS THAT, DOCTOR?
20 A. AGAIN, I THINK, FROM THE INITIAL DOSE OF MORPHINE IT'S
21 CLEAR THAT IN THIS PATIENT THE EFFECTS OF MORPHINE PERSISTED
22 FOR A LONGER PERIOD THAN WHAT MIGHT OTHERWISE BE EXPECTED.
23 SO I WOULD EXPECT THE SECOND SHOT OF MORPHINE CLEARLY WOULD
24 HAVE A DURATION SIMILAR TO THE FIRST SHOT, AND THAT CLEARLY
25 INCLUDES THE PERIOD OF WHEN THIS PATIENT DIED.
4090
1 Q. OKAY. DOCTOR, ASSUMING THAT DR. CANNON TESTIFIED THAT
2 HE DOUBTED THAT PEOPLE CAN BECOME SO SEDATED THEY HAVE TO BE
3 TOLD TO BREATHE, IS THIS SOMETHING YOU DEAL WITH ON A
4 REGULAR BASIS AS AN ANESTHESIOLOGIST?
5 A. I DO.
6 MR. STIRBA: I'LL OBJECT, YOUR HONOR. IT'S BEYOND
7 THE SCOPE OF THE PROFFER AND IT'S NOT REBUTTAL.
8 THE COURT: OVERRULED. LET ME HEAR THE NEXT
9 QUESTION.
10 Q. (BY MR. WILSON) YOU DO DEAL WITH THAT ON A REGULAR
11 BASIS?
12 A. I DO.
13 Q. DOES THIS JUST HAPPEN WITH PEOPLE WHO RECEIVE NARCOTICS?
14 A. WITH A SUFFICIENT DOSE OF NARCOTICS THIS IS A COMMON
15 EFFECT. RESPIRATIONS CAN BE EVEN ELIMINATED. PATIENTS HAVE
16 TO BE REMINDED TO BREATHE. WE SEE THAT EVERY DAY IN THE
17 OPERATING ROOM WHEN WE'RE BEING VERY AGGRESSIVE WITH OUR
18 NARCOTIC DOSING.
19 Q. DOES IT HAPPEN WHEN PEOPLE HAVE A NON-NARCOTIC BUT OTHER
20 CENTRAL NERVOUS SYSTEM DEPRESSANT ON BOARD?
21 MR. STIRBA: I'LL OBJECT AGAIN. IT'S ALREADY BEEN
22 TESTIFIED TO ONCE IN HIS INITIAL TESTIMONY.
23 THE COURT: SUSTAINED.
24 Q. (BY MR. WILSON) DR. SUPERNAW TESTIFIED HE HAS DEALT
25 WITH PAIN MANAGEMENT TREATMENT FAILURES FOR MANY YEARS. IN
4091
1 YOUR OPINION, WERE ANY OF THESE FIVE PATIENTS WHO DIED
2 SUFFERING FROM PAIN MANAGEMENT FAILURES?
3 A. I DON'T BELIEVE SO. I THINK PAIN AT MOST WAS A VERY
4 SECONDARY COMPLAINT IN THESE PATIENTS. MANY OF THEM HAD NO
5 CLEAR PAIN COMPLAINTS.
6 Q. OKAY. DO YOU USE MORPHINE IN YOUR PRACTICE?
7 A. I DO.
8 Q. ARE YOU OPPOSED TO USING MORPHINE?
9 MR. STIRBA: OBJECT, YOUR HONOR.
10 THE COURT: SUSTAINED.
11 Q. (BY MR. WILSON) DO YOU HAVE ANY BELIEFS AS TO ITS
12 APPROPRIATE USE WITH PATIENTS WHO ARE DYING?
13 MR. STIRBA: OBJECTION. BEYOND THE SCOPE.
14 THE COURT: SUSTAINED.
15 Q. (BY MR. WILSON) ARE YOU FAMILIAR WITH THE CONCEPT OF
16 DOUBLE EFFECT, DOCTOR?
17 A. I AM.
18 Q. AND WHAT IS THAT CONCEPT?
19 A. IN GENERAL THE CONCEPT WOULD SAY THAT IN AN ATTEMPT TO
20 ACHIEVE A THERAPEUTIC EFFECT, FOR INSTANCE WITH MORPHINE, IN
21 ORDER TO ACHIEVE PAIN RELIEF, THAT IT CAN BE POSSIBLE AT
22 TIMES TO COMPROMISE THE OTHER VITAL SIGNS. FOR INSTANCE,
23 BLOOD PRESSURE, BREATHING, SOMETHING LIKE THIS.
24 Q. SO WHAT VITAL SIGNS NEED TO BE MONITORED OR DOCUMENTED
25 WHEN MORPHINE IS BEING USED IN THIS CONTEXT?
4092
1 MR. STIRBA: OBJECTION. IT'S NOT REBUTTAL.
2 THE COURT: OVERRULED AS TO THAT QUESTION.
3 Q. (BY MR. WILSON) DID YOU UNDERSTAND THE QUESTION?
4 A. I'M SORRY. CAN YOU REASK IT?
5 Q. WHAT VITAL SIGNS NEED TO BE MONITORED OR DOCUMENTED WHEN
6 MORPHINE IS BEING ORDERED IN THE CONCEPT OF DOUBLE EFFECT?
7 A. AT FREQUENT INTERVALS. IN OTHER WORDS, FREQUENT ENOUGH
8 TO CATCH THE PEAK EFFECT OF THE MORPHINE. THINGS LIKE
9 BREATHING RATE, OXYGENATION, BLOOD PRESSURE, LEVEL OF
10 CONSCIOUSNESS, ALL OF THOSE THINGS WOULD HAVE TO BE
11 MONITORED.
12 Q. WHEN YOU SAY AT A FREQUENT RATE, WHAT DO YOU MEAN?
13 A. I THINK, BEING AGGRESSIVE WITH OPIOIDS, MEASURING THESE
14 THINGS AT LEAST EVERY HOUR IS APPROPRIATE. IN SOME CASES
15 EVEN MORE OFTEN THAN EVERY HOUR.
16 Q. IN YOUR EXPERIENCE HAVE YOU DEALT WITH PATIENTS WHO WERE
17 IN THE PROCESS OF DYING?
18 A. YES.
19 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR. NOT
20 REBUTTAL.
21 MR. WILSON: YOUR HONOR, MY ARGUMENT WOULD BE IT
22 GOES TO THE TESTIMONY AS RELATES TO EACH ONE OF THESE
23 PATIENTS.
24 THE COURT: ASK A SPECIFIC QUESTION.
25 Q. (BY MR. WILSON) YOU SAID YES?
4093
1 A. YES.
2 Q. AND OVER HOW MANY YEARS HAVE YOU BEEN IN THE PRACTICE
3 WHERE YOU'VE OBSERVED PATIENTS IN THE DYING PROCESS?
4 A. OVER 20.
5 Q. OKAY. HAVE YOU EVER SEEN A PATIENT WHO IS DYING WHO IS
6 THRASHING ABOUT?
7 A. NO, NOT REALLY.
8 Q. THERE'S TESTIMONY THAT LYDIA SMITH WAS THRASHING ABOUT
9 ON JANUARY 7TH. IS THAT CONSISTENT WITH THE DYING PROCESS?
10 MR. STIRBA: OBJECTION.
11 THE COURT: SUSTAINED.
12 Q. (BY MR. WILSON) WE'VE HEARD TESTIMONY, DOCTOR, THAT
13 MARY CRANE WAS OPIOID TOLERANT. HAVE YOU REVIEWED HER
14 MEDICATION RECORDS FROM THE NURSING HOME?
15 A. YES, I HAVE.
16 Q. AND DO THOSE MEDICATIONS DATE BACK TO 1991?
17 A. THAT'S CORRECT.
18 Q. BASED UPON YOUR REVIEW OF THOSE RECORDS, DO YOU HAVE AN
19 OPINION AS TO WHETHER OR NOT SHE WAS OPIOID TOLERANT?
20 A. I DO.
21 Q. AND WHAT IS THAT OPINION, SIR?
22 A. I DO NOT BELIEVE SHE, BY ANY STRETCH OF THE IMAGINATION,
23 WAS OPIOID TOLERANT. AT MOST SHE WAS RECEIVING ONE PAIN
24 PILL A DAY.
25 MR. STIRBA: HE ANSWERED THE QUESTION. NOW IT'S
4094
1 NARRATIVE.
2 MR. WILSON: I THINK HE CAN CHARACTERIZE IT, BUT
3 I'LL ASK A FURTHER QUESTION.
4 Q. (BY MR. WILSON) WHY DO YOU HAVE THAT OPINION, SIR?
5 A. AT MOST SHE WAS RECEIVING ONE PAIN TABLET A DAY. THIS
6 IS NOT SUFFICIENT TO CAUSE TOLERANCE.
7 Q. THE TABLET THAT SHE WAS RECEIVING A DAY JUST PRIOR TO
8 HER ADMISSION TO THE GERO-PSYCH UNIT, DO YOU REMEMBER WHAT
9 KIND OF PRESCRIPTION TABLET THAT WAS?
10 A. YES, I DO.
11 MR. STIRBA: I'LL OBJECT. THIS IS BEYOND THE SCOPE
12 OF REBUTTAL.
13 THE COURT: OVERRULED AS TO THAT QUESTION.
14 Q. (BY MR. WILSON) CAN YOU CHARACTERIZE THE TYPE OF
15 TABLET IT WAS?
16 A. YES. IT WAS ONE OF THE -- I BELIEVE IT WAS VICODIN.
17 IT'S A HYDROCODONE TYLENOL CONTAINING COMBINATION AT THE
18 LOWEST STRENGTH.
19 Q. AT THE LOWEST STRENGTH?
20 A. YES.
21 Q. OKAY. THERE'S TESTIMONY BY DR. ROTHFEDER THAT IF --
22 MR. STIRBA: I'M GOING TO OBJECT TO THE
23 CHARACTERIZATION OF THE TESTIMONY. THIS IS DIRECT
24 EXAMINATION. IT'S LEADING AND SUGGESTIVE AND IT
25 MISCHARACTERIZES THE TESTIMONY.
4095
1 THE COURT: JUST ASK THE QUESTION THAT REBUTS
2 WHATEVER YOU'RE TRYING TO REBUT.
3 Q. (BY MR. WILSON) LET ME ASK YOU THIS, DOCTOR. IS IT
4 YOUR OPINION THAT IF DOCTORS FOLLOWED THE P.D.R. THEY
5 WOULDN'T GIVE ANY DRUGS?
6 A. ABSOLUTELY NOT.
7 Q. WHY DID YOU REFERENCE THE P.D.R. FOR THE DURAGESIC?
8 A. I BELIEVE THE P.D.R. GIVES VERY SAFE, PROVEN GUIDELINES
9 AS TO HOW MEDICATIONS CAN BE USED. I THINK IT CERTAINLY IS
10 A GOOD INITIAL STARTING POINT FOR DRUG THERAPY. I BELIEVE
11 THAT, IN THE CASE OF DURAGESIC PATCHES, THE INFORMATION
12 CONTAINED IS ACCURATE. I THINK IT GIVES VERY CLEAR
13 GUIDELINES AS TO HOW THIS PARTICULAR PRODUCT SHOULD BE USED.
14 Q. OKAY. THERE IS ALSO TESTIMONY --
15 MR. STIRBA: I'M GOING TO OBJECT, YOUR HONOR.
16 THE COURT: JUST ASK THE QUESTION, DON'T PREFACE.
17 Q. (BY MR. WILSON) ARE THERE TWO DIFFERENT KINDS OF PAIN,
18 IN YOUR OPINION?
19 A. THERE ARE LOTS OF DIFFERENT KINDS OF PAIN.
20 Q. IF A PATIENT BECOMES DEHYDRATED AND HAS MULTIPLE DISEASE
21 PROCESSES GOING ON, WOULD THAT CREATE AN ANGUISHED DEATH, IN
22 YOUR OPINION?
23 MR. STIRBA: I'LL OBJECT TO THAT AS BEING BEYOND
24 THE SCOPE.
25 THE COURT: OVERRULED.
4096
1 Q. (BY MR. WILSON) MAYBE THE QUESTION -- DID YOU
2 UNDERSTAND THE QUESTION, DOCTOR?
3 A. I THINK THAT THERE'S CERTAINLY DISCOMFORT THAT WOULD BE
4 ASSOCIATED WITH THINGS LIKE DEHYDRATION AND SOME OTHER
5 ISSUES THAT MIGHT COME UP IN A DYING PATIENT.
6 Q. YOU'VE REVIEWED THE FILE OF ENNIS ALLDREDGE. IF THE
7 I.V. WAS DISCONTINUED IN RESPECT TO ENNIS ALLDREDGE, WOULD
8 THAT CREATE AN ANGUISHED DEATH?
9 MR. STIRBA: OBJECT. IT'S NOT REBUTTAL. HE'S
10 ALREADY TESTIFIED TO THAT.
11 THE COURT: SUSTAINED.
12 Q. (BY MR. WILSON) IS THERE ANY CORRELATION BETWEEN
13 SODIUM LEVELS AND THIRST, DOCTOR?
14 A. THERE CERTAINLY IS, YES.
15 Q. IS LETTING A PATIENT'S SODIUM LEVEL GET HIGH CONSISTENT
16 WITH COMFORT CARE?
17 A. I WOULD SAY NOT.
18 Q. WHY IS THAT?
19 A. THAT WOULD CLEARLY LEAD TO SIGNIFICANT THIRST. IT WOULD
20 POTENTIALLY LEAD TO CONFUSION IN THE PATIENT, AGITATION, AND
21 SOME OF THE OTHER THINGS THAT WERE PRESENT IN THESE
22 PATIENTS.
23 Q. CAN YOU TELL US, DOCTOR, IF A PATIENT IS EXHIBITING
24 SIGNS OF CHEYNE-STOKING, IS THAT A SIGN THAT THEY ARE NOT
25 SUFFERING FROM MORPHINE INTOXICATION?
4097
1 MR. STIRBA: OBJECT. IT'S AN IRRELEVANT
2 HYPOTHETICAL. IT DOESN'T HAVE ANY RELATIONSHIP SPECIFICALLY
3 TO A PATIENT OR SPECIFICALLY TO ANY TESTIMONY.
4 THE COURT: SUSTAINED.
5 Q. (BY MR. WILSON) I'LL ASK IT THIS WAY, DOCTOR. IN THE
6 MEDICAL RECORDS OF SEVERAL OF THE PATIENTS THERE'S REFERENCE
7 AS TO CHEYNE-STOKES BREATHING, IS THAT CORRECT?
8 A. THAT'S CORRECT.
9 Q. AND IN RESPECT TO THE CHEYNE-STOKING BREATHING, CAN YOU
10 TELL US WHETHER OR NOT THAT'S CONSISTENT OR INCONSISTENT
11 WITH MORPHINE INTOXICATION?
12 MR. STIRBA: I'M GOING TO OBJECT. HE TESTIFIED TO
13 THIS VERY POINT ON HIS INITIAL TESTIMONY.
14 THE COURT: SUSTAINED.
15 Q. (BY MR. WILSON) ARE THERE OTHER -- IF YOU HAVE OTHER
16 DRUGS ON BOARD, DOES THAT CHANGE THE -- SUCH AS OTHER
17 CENTRAL NERVOUS SYSTEM DEPRESSANTS AS WE HAVE IN THIS
18 PARTICULAR CASE, DOES THAT CHANGE THE BREATHING PATTERN OR
19 RESPIRATION PATTERNS IN ANY WAY?
20 MR. STIRBA: OBJECTION AGAIN. CUMULATIVE,
21 REPETITIVE.
22 THE COURT: SUSTAINED.
23 Q. (BY MR. WILSON) AS YOU RECALL, WERE ANY OF THESE
24 PATIENTS GIVEN NO OTHER DRUGS BUT MORPHINE?
25 MR. STIRBA: THAT'S NOT A REBUTTAL QUESTION. IT'S
4098
1 IRRELEVANT.
2 THE COURT: SUSTAINED. WHAT IS THE RELEVANCE OF
3 THAT IN REBUTTAL?
4 MR. WILSON: I THINK IT PERTAINS TO THE FORMER
5 QUESTION, YOUR HONOR. I'M JUST TRYING TO GO ABOUT GETTING
6 BACK TO THE RESPIRATION RATES IN RESPECT TO THESE PATIENTS
7 AND WHETHER OR NOT THEY'RE CONSISTENT WITH MORPHINE.
8 THERE'S BEEN TESTIMONY --
9 THE COURT: OKAY. JUST ASK THE NEXT QUESTION.
10 MR. WILSON: I'LL TAKE EXCEPTION TO THE RULING ON
11 THAT, YOUR HONOR AND THEN ARGUE IT LATER.
12 THE COURT: I HAVEN'T -- WELL, MAYBE WHAT WE CAN
13 DO, LADIES AND GENTLEMEN, MAYBE WE'LL GET SOMETHING
14 CLARIFIED AT THIS POINT SO THINGS WILL GO A LITTLE QUICKER.
15 LET'S TAKE A SHORT BREAK.
16 DURING THIS BREAK IT'S YOUR DUTY NOT TO CONVERSE AMONG
17 YOURSELVES OR TO CONVERSE WITH OR ALLOW YOURSELVES TO BE
18 ADDRESSED BY ANY PERSON ON THE SUBJECT OF THE TRIAL. IT IS
19 YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE
20 IS FINALLY SUBMITTED TO YOU. THE BAILIFF WILL LET YOU KNOW
21 WHEN TO COME BACK.
22 (JURY OUT OF THE COURTROOM.)
23 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
24 HAS LEFT THE COURTROOM. OKAY. THE LAST QUESTION, WOULD YOU
25 REPEAT IT TO ME AGAIN.
4099
1 MR. WILSON: THE LAST QUESTION RELATED TO WERE ANY
2 OF THESE PATIENTS GIVEN NO OTHER DRUGS BUT MORPHINE.
3 ACTUALLY, I WAS GETTING -- THE QUESTION THAT I HAD ASKED
4 PREVIOUS TO THAT WAS RELATIVE TO CHEYNE-STOKING, YOUR HONOR.
5 I WOULD SUBMIT THAT THE TESTIMONY OF BOTH DR. STRATTON, HILL
6 AND DR. HERBST WAS TO THE EFFECT THAT CHEYNE-STOKING WAS NOT
7 CONSISTENT WITH MORPHINE INTOXICATION. I WANTED THIS DOCTOR
8 TO BE ABLE TO TESTIFY RELATED TO THAT SPECIFICALLY AND THE
9 FACT THAT OTHER DRUGS THAT ARE ON BOARD HAVE A SIGNIFICANCE
10 TO THAT BREATHING PATTERN. I THINK IT'S APPROPRIATE
11 REBUTTAL.
12 THE COURT: WHAT'S THE RESPONSE ON THAT?
13 MR. STIRBA: I GUESS THE RESPONSE IS I THOUGHT -- I
14 UNDERSTOOD THERE WAS A PROFFER AND I'M JUST HAVING A LITTLE
15 HARD TIME FIGURING OUT WHAT'S REBUTTAL AND WHAT ISN'T. I
16 DON'T MEAN TO KEEP OBJECTING, BUT IT'S VERY DIFFICULT TO
17 BASICALLY UNDERSTAND WHERE WE'RE GOING. AND IF I DON'T HAVE
18 AN UNDERSTANDING AS TO THE PROFFER WHAT IS PRECISELY
19 REBUTTAL.
20 IN TERMS OF THAT PARTICULAR ISSUE, I WILL SAY THAT DR.
21 HARE TESTIFIED, QUITE EXTENSIVELY IN HIS INITIAL TESTIMONY,
22 ABOUT MORPHINE TOXICITY, THE SYMPTOMS OF MORPHINE TOXICITY,
23 THE CAUSES OF MORPHINE TOXICITY, HIS OPINION THAT MORPHINE
24 TOXICITY CAUSED THESE DEATHS AND WHY. SO WE'RE JUST
25 ESSENTIALLY REDOING EVERYTHING AND THAT'S MY CONCERN.
4100
1 THE COURT: MR. WILSON.
2 MR. WILSON: I THINK MY QUESTIONS GO SPECIFICALLY
3 AS TO THE TESTIMONY THAT THE TWO EXPERT WITNESSES FOR THE
4 DEFENDANT TESTIFIED THAT CHEYNE-STOKING WAS NOT CONSISTENT
5 WITH MORPHINE TOXICITY, OR IN RESPECT TO WHAT THEY OBSERVED
6 IN THESE PATIENTS' RECORDS. I THINK WE HAVE A RIGHT TO
7 REBUT THAT.
8 I AGREE, COUNSEL IS RIGHT, WE HAVE HAD TESTIMONY, AS IT
9 RELATES WITH DR. HARE, AS TO THE EFFECTS OF MORPHINE
10 TOXICITY, BUT -- WHEN HE TALKS ABOUT THE PROFFER, AS THE
11 COURT IS WELL AWARE, I HAVE NOT HAD TIME TO PREPARE THIS
12 WITNESS. I DID NOT ANTICIPATE PREPARING THIS WITNESS.
13 WELL, I DID ANTICIPATE PREPARING THIS WITNESS WHILE OTHER
14 WITNESSES WERE BEING PRESENTED. IT'S MY UNDERSTANDING THAT
15 WE ARE NOT GOING TO BE ALLOWED TO PRESENT THOSE OTHER
16 WITNESSES THAT WE'D INITIALLY LISTED AND WERE ANTICIPATING
17 TO PUT ON. I'M SORT OF SHOOTING IN THE DARK HERE, YOUR
18 HONOR. I APPRECIATE SOME LEEWAY THERE. AS INDICATED BY MR.
19 MAJOR, IT'S SORT OF HARD TO MAKE A PROFFER OF EVERYTHING
20 THAT YOU WANT TO TRY AND ADDRESS.
21 THE COURT: HERE'S THE CONCERN THAT I HAVE. AS OF
22 LAST FRIDAY THE STATE KNEW THAT THE DEFENDANT HAD ONE MORE
23 DAY FOR THEIR CASE. WE HAD JURY INSTRUCTIONS ON MONDAY. ON
24 WEDNESDAY THEY CAME AND, BUT FOR COMPLETING THE
25 CROSS-EXAMINATION OF THE DEFENDANT THURSDAY MORNING, WHICH
4101
1 IS TODAY, THAT AS OF FRIDAY SOMEBODY SHOULD HAVE KNOWN THAT
2 YOU WOULD BE PUTTING ON YOUR CASE PROBABLY COME THURSDAY.
3 WE DISCUSSED THAT ON MONDAY, THAT THAT WOULD HAPPEN THURSDAY
4 AND FRIDAY.
5 SO WE HAVE THIS MOTION EARLIER AND THIS MOTION
6 BASICALLY SAYS TELL US WHAT YOU'RE GOING TO DO. AND THEN A
7 PROFFER CAN'T BE GIVEN SO I SAY, OKAY, LET'S JUST PUT ON THE
8 WITNESS. THE WITNESS GETS ON AND THEN IF THE DEFENDANT HAS
9 TO MAKE AN OBJECTION EVERY TIME WITH EVERY QUESTION -- I
10 MEAN, I'M GOING TO HAVE TO HAVE A PROFFER, BECAUSE I'M NOT
11 GOING TO REQUIRE THAT WE PUT A WITNESS ON AND THEN EVERY
12 OBJECTION IS GOING TO BE SUSTAINED AND YOU ASK 25 QUESTIONS
13 OR 30 QUESTIONS. BASICALLY THE JURY IS SAYING WHAT IS GOING
14 ON HERE, WHAT ARE WE DOING.
15 SO IF YOU CAN NOW TELL ME WHAT ELSE YOU'RE GOING TO --
16 YOU'VE TOLD ME ABOUT THE CHEYNE-STOKES BREATHING. WHAT ELSE
17 DO YOU WANT TO GO THROUGH WITH THIS WITNESS AND ALL THE
18 OTHER WITNESSES? THIS IS A CASE THAT'S GOING FORWARD. WHEN
19 THE DEFENSE RESTS THE REBUTTAL BEGINS. WE DON'T TAKE A FEW
20 DAYS TO GET SET. THIS JURY, WE'VE HAD THEM HERE FOR -- THIS
21 IS THE FIFTH WEEK. WE SAID IT WOULD BE SIX WEEKS. IF IT
22 CAN BE ANY SHORTER, WE'LL MAKE IT SHORTER.
23 I NEED TO KNOW -- YOU SAY YOU'RE SHOOTING IN THE DARK.
24 THAT'S TRUE AND IF YOU JUST KEEP REPEATING EVERYTHING BACK
25 BECAUSE YOU DON'T HAVE A LIST OF EACH ITEM YOU WANT TO GO
4102
1 THROUGH, SO TELL ME WHAT THE ITEMS ARE THAT YOU WANT TO ASK
2 THIS WITNESS OUTSIDE THE PRESENCE OF THE JURY SO WE CAN
3 DISCUSS IT.
4 MR. WILSON: AS I'VE INDICATED TO THE COURT, I WANT
5 TO ASK QUESTIONS AS RELATED TO THE CHEYNE-STOKING. I WANT
6 TO ASK QUESTIONS AS TO THE BALANCING OF MEDS, WHICH WAS
7 TESTIFIED AS RELATED TO LYDIA SMITH.
8 THE COURT: WHAT SPECIFICALLY DOES THAT REBUT OR
9 WHERE DOES THAT GO?
10 MR. WILSON: THAT REBUTS THE DEFENDANT'S TESTIMONY
11 AS RELATES THAT HE WAS TESTIFYING THAT HE WAS BALANCING THE
12 MEDICATIONS FOR LYDIA SMITH. I WOULD PROFFER THAT DR. HARE
13 WILL TESTIFY THAT HE DID NOT SEE ANY INDICATIONS IN THE
14 CHARTS AS RELATES TO BALANCING THOSE MEDICATIONS.
15 I WANT TO ASK HIM QUESTIONS ABOUT THE USE OF ATIVAN AND
16 MORPHINE, AS IT RELATES TO THE CASE OF ENNIS ALLDREDGE, AND
17 THE FACT THAT THE DEFENDANT HAS TESTIFIED THAT IT WOULDN'T
18 HAVE THE ADVERSE EFFECT OF CREATING ANY BIGGER POTENTIAL FOR
19 DEATH.
20 I WANT TO TALK TO HIM ABOUT DYSPNEA AND WHAT KIND OF
21 DOSES YOU USE FOR THAT PROBLEM AND HOW THE PATIENT IS
22 MONITORED FOR DYSPNEA. THAT'S BEEN THE TESTIMONY OF THE
23 EXPERTS STRATTON, HILL. AND I THINK ALSO HERBST TESTIFIED
24 AS TO DYSPNEA.
25 THE COURT: IS HE GOING TO SAY -- DID THESE OTHER
4103
1 DOCTORS SAY THAT THEY HAD DYSPNEA?
2 MR. WILSON: AS I RECALL THEY DID.
3 THE COURT: AND IS THIS DOCTOR GOING TO SAY THEY
4 DIDN'T HAVE IT?
5 MR. WILSON: AS I UNDERSTAND IT, THAT'S CORRECT,
6 THAT THEY DID NOT HAVE DYSPNEA. MAYBE I CAN ASK HIM THAT
7 RIGHT NOW. THAT'S MY UNDERSTANDING OF WHAT HIS TESTIMONY
8 WOULD BE. IS THAT CORRECT, DOCTOR?
9 THE WITNESS: THAT'S CORRECT.
10 MR. WILSON: I'M GOING TO ASK ABOUT -- I WANTED TO
11 ASK ABOUT WHETHER A SIGN OF MOANING IS A SYMPTOM OF PAIN.
12 THE COURT: HAVEN'T WE BEEN THROUGH THAT? I'VE
13 HEARD THAT QUESTION ASKED NUMEROUS TIMES. I THINK EVERY
14 NURSE HAS TESTIFIED AND THE EXPERTS TESTIFIED AND ALL GAVE
15 THEIR OPINION, IF IT IS OR IF IT ISN'T. SO I DON'T THINK WE
16 NEED TO GO OVER THAT GROUND AGAIN.
17 MR. WILSON: I'M GOING TO ASK, AS TO MS. SMITH,
18 QUESTIONS AS RELATES TO THE MEDICATIONS MAKING HER UNABLE TO
19 TAKE FLUIDS, OR WHETHER HE HAS AN OPINION AS TO WHETHER THE
20 MEDICATIONS CONTRIBUTED TO HER INABILITY TO TAKE FLUIDS.
21 THE COURT: WHO DOES THAT REBUT?
22 MR. WILSON: THAT WOULD BE REBUTTING, I THINK
23 PRIMARILY, THE TESTIMONY OF -- I THINK IT RELATES TO THE
24 TESTIMONY, AS I RECALL, THAT SHE WAS -- WAS IT CONSISTENT
25 WITH HER CARDIAC PROBLEM.
4104
1 THEN I WANTED TO ASK HIM QUESTIONS AS TO THE TESTIMONY
2 AS IT RELATED TO JUDITH LARSEN, AS TO GIVING THE HIGHER
3 DOSAGES ON THE LAST DAY AFTER THE NURSES HAD WITHHELD, OR ON
4 THE DAY BEFORE, AFTER THE NURSES HAD WITHHELD MEDS AND TO
5 GET HER PAIN UNDER CONTROL, WHETHER OR NOT THAT'S A PROPER
6 WAY TO -- A PROCEDURE THAT YOU DO TO GET PAIN UNDER CONTROL.
7 THE COURT: ANYTHING ELSE?
8 MR. WILSON: I THINK I WANTED TO ASK HIM SOME
9 GENERAL QUESTIONS AS TO COMFORT CARE, THE OFFERING OF IV'S
10 AND COMFORT CARE. THAT GOES TO REBUT THE TESTIMONY OF THE
11 DEFENDANT, YOUR HONOR.
12 THE COURT: ANY OTHER AREAS?
13 MR. WILSON: I THINK THAT'S PRETTY MUCH IT, YOUR
14 HONOR, AS I CAN REMEMBER IT.
15 THE COURT: WELL, I HAVE CHEYNE-STOKES BREATHING,
16 BALANCING OF MEDS, USE OF ATIVAN AND MORPHINE IN MR.
17 ALLDREDGE, WHETHER THAT HAD AN ADVERSE EFFECT. HIS OPINION
18 ABOUT WHETHER THE PATIENTS HAD DYSPNEA. MRS. SMITH TAKING
19 MEDS TO TAKE FLUIDS. SOMETHING ABOUT THE EXISTENCE OF A
20 CARDIAC PROBLEM. I DIDN'T REALLY FOLLOW THAT ONE. HIGHER
21 DOSES WITH MS. LARSEN AFTER THE NURSES WITHHELD A DOSE,
22 WHETHER THAT CAUSES -- THAT WOULD CAUSE PAIN OR WHAT THE
23 EFFECT WOULD BE. AND THEN WHETHER -- WERE YOU GOING TO ASK
24 HIM IF YOU TAKE OUT I.V.'S TO PROVIDE COMFORT CARE?
25 MR. WILSON: YES. OR DO YOU USE I.V.'S IN THE
4105
1 PROCESS OF COMFORT CARE.
2 THE COURT: OKAY. ARE THERE ANY OTHER AREAS WITH
3 THIS WITNESS, MR. WILSON?
4 MR. WILSON: ALSO, AS TO ELLEN ANDERSON'S
5 MEDICATIONS PRIOR TO ENTERING THE UNIT, AND THAT GOES TO
6 REBUT, I THINK, OTHER TESTIMONY.
7 THE COURT: OKAY. ABOUT WHAT?
8 MR. WILSON: PARDON?
9 THE COURT: FINISH THAT. I DIDN'T UNDERSTAND WHAT
10 YOU WERE SAYING.
11 MR. WILSON: I THINK THERE WAS TESTIMONY THAT -- I
12 CAN'T REMEMBER WHO IT WAS BY. IT MAY HAVE BEEN BY DR.
13 WEITZEL. I'M TRYING TO REMEMBER. BUT THERE WAS TESTIMONY
14 THAT THE OTHER MEDICATIONS THAT SHE'D BEEN RECEIVING JUST
15 PRIOR TO ENTERING THE UNIT WOULDN'T HAVE BEEN IN HER BLOOD
16 STREAM AND WOULDN'T HAVE HAD ANY EFFECT AS IT RELATES TO THE
17 USE OF MORPHINE ON THAT PARTICULAR DAY.
18 THE COURT: ANYTHING ELSE?
19 MR. WILSON: I THINK THAT'S IT.
20 THE COURT: OKAY. MR. STIRBA, ANY RESPONSE?
21 MR. STIRBA: YES, YOUR HONOR. FIRST, AS FAR AS THE
22 CHEYNE-STOKES BREATHING PATTERN, I GUESS THERE WAS SOME
23 TESTIMONY CONCERNING THAT. I GUESS IF THE QUESTIONS ARE PUT
24 WITH SOME SPECIFICITY I CAN'T SAY THAT THAT ISN'T AN AREA
25 FOR REBUTTAL.
4106
1 AS FAR AS BALANCING THE MEDS, QUITE FRANKLY THAT'S AN
2 ARGUMENT. I MEAN, THE FACTS ARE WHAT THE FACTS ARE. THE
3 MEDS ARE WHAT THE MEDS ARE. THE MEDS ARE IN THE AMOUNTS AND
4 DOSES OF WHAT THEY WERE. WE'VE HAD MORE THAN ADEQUATE
5 TESTIMONY ALL OVER THE PLACE ON THAT.
6 TO JUST HAVE SOMEBODY COME IN AND SAY IT DOESN'T LOOK
7 LIKE BALANCING TO ME, ESPECIALLY FROM A PAIN MANAGEMENT
8 EXPERT. REMEMBER, THIS ISN'T AN END OF LIFE CARE EXPERT,
9 THIS IS NOT A PSYCHIATRIST. THIS THE PAIN GUY. TO HAVE HIM
10 COME IN AND TALK AS IF HE'S AN EXPERT IN ALL OF THESE AREAS
11 I DON'T THINK HELPS THE JURY.
12 BALANCING THE MEDS, THAT'S ARGUMENT. THEY CAN MAKE AN
13 ARGUMENT BASED UPON THE FACTS.
14 THE USE OF ATIVAN AND MORPHINE AND ADVERSE EFFECTS,
15 REALLY, I DON'T THINK, THE QUESTION WAS EVER PUT NOR WAS THE
16 ANSWER GIVEN RELATING TO WHETHER OR NOT THAT WOULD CREATE AN
17 ADDITIONAL DEGREE OF PROBLEM THAT MAY RESULT IN DEATH. SO
18 IF HE'S GOING TO ANSWER IT THAT WAY, I DON'T THINK THAT'S
19 REBUTTAL.
20 THERE HAS BEEN TESTIMONY BY DR. SUPERNAW ABOUT THE USE
21 OF ATIVAN IN CONJUNCTION WITH MORPHINE. I BELIEVE DR.
22 WEITZEL HAD SOME TESTIMONY HIMSELF ON THAT. BUT IT HAD
23 NOTHING TO DO WITH CAUSATION AND DEATH. IF HE'S GOING TO
24 ANSWER IT THAT WAY I DON'T THINK IT'S ADEQUATE REBUTTAL.
25 AS FAR AS DYSPNEA IS CONCERNED, I DON'T RECALL ANYBODY
4107
1 SAYING THAT THAT WAS IN FACT WHAT WAS GOING ON WITH THESE
2 PATIENTS. THERE ARE SOME DESCRIPTIONS OF GASPING, SOME
3 NURSING NOTES RELATING TO GASPING IN MR. ALLDREDGE'S CHART.
4 THERE HAS BEEN SOME TESTIMONY THAT GASPING IS SYMPTOMATIC OF
5 THAT PHENOMENON, BUT I DON'T THINK ANYONE HAS SAID THAT THAT
6 PERSON HAD DYSPNEA, OR HOWEVER IT'S PRONOUNCED, AND
7 THEREFORE THOSE DOSES ARE NECESSARILY DIRECTLY APPROPRIATE
8 FOR THAT PURPOSE. I DON'T KNOW WHAT HE'S REBUTTING THERE.
9 AS FAR AS THE MEDICATION IN TERMS OF -- I THINK IT WAS
10 RELATING TO LYDIA SMITH.
11 MR. WILSON: LARSEN.
12 THE COURT: YOU SAID SMITH. IT WAS SOMETHING ABOUT
13 MEDICATIONS TO TAKE FLUIDS.
14 MR. STIRBA: YES. OKAY. I REMEMBER NOW. I THINK,
15 ONCE AGAIN, THAT'S CUMULATIVE. IF YOU'LL RECALL, THAT VERY
16 CHART, DR. HARE WENT OVER WHAT. THESE ARE THE LONG-TERM
17 EFFECTS, THE SHORT-TERM EFFECTS. ONE OF THEM WAS FLUID LOSS
18 AND INABILITY TO EAT. OKAY. HE SAYS WHATEVER HE WANTS TO
19 SAY ON HIS EXAMINATION.
20 THEN DR. HILL GETS UP AND DR. HILL WAS ASKED THE SAME
21 THINGS. IN FACT, HE WAS EVEN CROSSED ON IT. THE SAME
22 CHART. NO, NO, YES, YES. I MEAN, THIS IS JUST ADDITIVE AND
23 CUMULATIVE. I SEE NO PURPOSE TO BE SERVED BY HAVING HIM NOW
24 TESTIFY AS TO THAT SYMPTOM OR WHATEVER HE THINKS IF IT'S
25 RELATED TO MORPHINE. WE HAVE A CHART ON IT, HIS CHART, AND
4108
1 IT'S NOT REBUTTAL.
2 JUDITH LARSEN, IN TERMS OF THE DOSES, I THINK THAT MAY
3 BE APPROPRIATE REBUTTAL.
4 AS FAR AS THE COMFORT CARE AND THE I.V.S, ONCE AGAIN, I
5 DON'T THINK THAT THERE'S ANY INDICATION THAT ANYBODY HAS
6 REALLY TESTIFIED PER SE THAT THERE'S ANY RELATIONSHIP TO
7 IV'S AND COMFORT CARE. HE ISN'T THAT KIND OF EXPERT. I
8 WOULD SUGGEST THAT THERE'S NOTHING REALLY THERE TO REBUT,
9 OTHER THAN IF HE WANTS TO JUST GIVE HIS RANK OPINION THAT HE
10 DOESN'T THINK THE WITHDRAWAL OF AN I.V. UNDER THESE
11 CIRCUMSTANCES WAS APPROPRIATE. BUT, QUITE FRANKLY, I THINK
12 THAT'S A FACTUAL ISSUE, BASED UPON THE FACTS THAT PEOPLE
13 HAVE TESTIFIED TO. THAT'S THEN ARGUMENT. THAT'S BASICALLY
14 WHAT THAT IS. IT'S NOT EXPERT OPINION. IT DOESN'T ASSIST
15 THE JURY IN ANY WAY.
16 AS FAR AS ELLEN ANDERSON IS CONCERNED, THAT ALSO IS
17 ARGUMENT. THE FACTS ARE WHAT THE FACTS ARE AS DR. WEITZEL
18 KNEW THEM. AND THE EVIDENCE IS BEFORE THE JURY. THERE'S NO
19 QUESTION THAT THERE WAS AN INDICATION IN THE NURSING
20 ASSESSMENT FORM THAT SHE HAD A PRN FOR LORTAB. THERE'S NO
21 QUESTION THAT SHE HAD NITROSTAT FOR CHEST PAIN. THOSE
22 ORDERS ARE IN THE FILE.
23 THERE IS NO INDICATION, NONE, AND I DON'T THINK
24 ANYBODY'S TESTIFIED TO IT, THAT ANYBODY TRULY KNOWS AT THE
25 TIME OF HER ADMISSION AND AT THE TIME OF THOSE INJECTIONS
4109
1 PRECISELY WHAT THE MEDICATION HISTORY WAS WITH RESPECT TO
2 HER RECEIVING LORTAB OR RECEIVING NITROSTAT. SO, QUITE
3 FRANKLY, THERE'S NOTHING THERE TO REBUT.
4 IT'S IRRELEVANT BECAUSE DR. WEITZEL DIDN'T TESTIFY TO
5 THAT FACT. WHAT HE TESTIFIED TO WERE THE FACTS THAT WERE IN
6 THE HOSPITAL RECORD, FACTS WHICH CERTAINLY LED HIM TO
7 BELIEVE THAT IN CONJUNCTION WITH WHAT THE NURSES TOLD HIM
8 SHE WAS IN FACT IN PAIN. THAT'S ALL HE'S TESTIFIED TO. I
9 DON'T KNOW WHETHER HER MEDICATION HISTORY ON LORTAB IS
10 REALLY REMOTELY RELEVANT TO ANYTHING TESTIFIED TO BECAUSE IT
11 HASN'T BEEN TESTIFIED TO.
12 THE COURT: MR. WILSON.
13 MR. WILSON: I THINK THE MEDICATIONS THAT WE'RE
14 TALKING ABOUT AS FAR AS THE LORTAB IS THE SIGNIFICANT ISSUE
15 THERE. I THINK WHAT IT RELATES TO IS, AS I RECALL, THE
16 MEDICATION WAS FOR TRAZODONE AND SHE HAD RECEIVED A DOSAGE
17 OF TRAZODONE. I GUESS I CAN ASK THE WITNESS, IS THAT WHERE
18 YOUR TESTIMONY WOULD GO TO?
19 THE WITNESS: NOW, THIS IS ON WHICH PATIENT?
20 Q. (BY MR. WILSON) ELLEN ANDERSON. DID YOU REVIEW HER
21 NURSING CARE RECORDS? MAYBE YOU CAN'T ANSWER THAT QUESTION
22 OR MAYBE I'M MISUNDERSTANDING.
23 A. I DON'T REMEMBER ON ELLEN ANDERSON IF SHE RECEIVED
24 TRAZODONE. SHE GOT THE MORPHINE.
25 MR. WILSON: I GUESS I MISSPOKE, YOUR HONOR. MAYBE
4110
1 IT WAS AS TO THE LORTAB.
2 THE COURT: THE ONLY OTHER QUESTION WAS AS TO THE
3 USE OF ATIVAN AND MORPHINE IN MR. ALLDREDGE. WHAT WAS HE
4 GOING TO TESTIFY ABOUT RELATING TO THAT?
5 MR. WILSON: I THINK I CAN JUST ASK HIM THAT.
6 THE COURT: GO AHEAD.
7 Q. (BY MR. WILSON) AS IT RELATES TO THE USE OF ATIVAN
8 WITH MORPHINE, DOCTOR --
9 MR. WILSON: I MIGHT JUST ARGUE TO THE COURT FOR A
10 SECOND HERE, THERE WAS TESTIMONY THAT WAS ELICITED ON CROSS
11 FROM DR. WEITZEL AS RELATED TO THE USE -- AS TO WHETHER OR
12 NOT THOSE TWO DRUGS TOGETHER WOULD HAVE HAD AN ENHANCING
13 EFFECT AND WHETHER THEY WOULD HAVE CAUSED THE DEATH OF ENNIS
14 ALLDREDGE. THAT WAS THE QUESTION I WAS GOING TO PROPOSE TO
15 THE DOCTOR AS TO WHETHER ATIVAN HAD AN ENHANCING EFFECT AS
16 RELATED TO THE MORPHINE.
17 MR. STIRBA: IF IT'S JUST ENHANCING MAYBE THAT'S
18 NARROW ENOUGH. HE'S ALREADY TESTIFIED TO THE CAUSE OF DEATH
19 AND HE INCLUDED ATIVAN IN HIS INITIAL TESTIMONY. TO HAVE
20 HIM REPEAT HIS OPINION IS NOT REBUTTAL.
21 THE COURT: WHAT I'LL DO IS YOU CAN ASK ABOUT THE
22 CHEYNE-STOKES BREATHING AND ABOUT THE BALANCING OF MEDS, IF
23 HE HAS AN OPINION, IF THAT'S WHAT IT LOOKS LIKE. YOU CAN
24 ASK ABOUT THE ENHANCING EFFECT OF USING ATIVAN WITH
25 MORPHINE. YOU CAN ASK ABOUT, HOWEVER YOU PRONOUNCE THE D
4111
1 WORD, DYSPNEA, WHATEVER IT'S CALLED. YOU MAKE SURE TO
2 PRONOUNCE IT THE RIGHT WAY.
3 THE NEXT ONE, ON MS. SMITH TAKING FLUIDS, I'M JUST
4 GOING TO -- THAT'S OUT. MS. LARSEN, GIVING THE HIGHER DOSE
5 AND WITHHOLDING, THAT'S FINE. AND THE QUESTION ABOUT THE
6 I.V. CARE YOU CAN GO INTO. THE OTHER ONE ABOUT ELLEN
7 ANDERSON I WON'T.
8 MR. WILSON: THE QUESTIONS ON -- I DID ALSO WANT TO
9 PROFFER THAT THERE WAS TESTIMONY, AGAIN BY EXPERTS, THAT
10 MORPHINE DOES NOT CAUSE ORGAN DAMAGE. I WANTED THE DOCTOR
11 TO CLARIFY WHAT HE MEANT IN THE CHART AS TO ORGAN DAMAGE. I
12 DON'T THINK THAT HAS BEEN TESTIFIED TO.
13 MR. STIRBA: THAT'S THE SAME PROBLEM WITH THE
14 OTHER. HE TESTIFIED TO IT IN HIS EXAMINATION AND HE WAS
15 SHOWN -- DR. HILL WAS SHOWN THAT CHART. HE WENT OVER IT ON
16 CROSS-EXAMINATION.
17 THE COURT: HE'S TESTIFIED EARLIER THAT IT DOES
18 CAUSE ORGAN DAMAGE. THE OTHER EXPERT SAYS IT DIDN'T. THEY
19 JUST HAVE DIFFERENT OPINIONS.
20 MR. WILSON: I GUESS I WANTED TO EXPLORE HOW IT
21 CAUSES ORGAN DAMAGE SO THE JURY CAN HAVE THAT EXPLANATION.
22 THE COURT: COULDN'T THAT HAVE BEEN ANTICIPATED
23 BEFORE WHEN HE WAS ASKED DOES IT CAUSE ORGAN DAMAGE? I'M
24 NOT GOING TO ALLOW THAT.
25 ANYTHING ELSE TO DISCUSS BEFORE THE JURY COMES BACK IN?
4112
1 MR. WILSON: I THINK NOT.
2 MR. STIRBA: NOTHING, YOUR HONOR.
3 THE COURT: OKAY. LET'S HAVE THE JURY COME BACK
4 IN.
5 (JURY BACK INTO THE COURTROOM.)
6 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
7 IS BACK. OKAY, MR. WILSON, WOULD YOU LIKE TO CONTINUE?
8 MR. WILSON: YES, YOUR HONOR. THANK YOU.
9 Q. (BY MR. WILSON) DOCTOR, AS IT RELATES TO CHEYNE-STOKES
10 BREATHING, CAN YOU TELL US, IN RESPECT TO THESE FIVE
11 PATIENTS, DID YOU OBSERVE IN THE MEDICAL RECORDS INCIDENCES
12 WHERE THEY WERE BREATHING IN THAT FASHION OR DESCRIBED IN
13 THAT FASHION?
14 A. YES, I DID.
15 Q. CAN YOU TELL US IS THAT CONSISTENT OR INCONSISTENT WITH
16 MORPHINE INTOXICATION?
17 A. IN A GENERAL SENSE IT IS CONSISTENT WITH THE EFFECTS OF
18 MORPHINE.
19 Q. IS THERE ANYTHING OTHER THAN THAT, THE USE OF MORPHINE,
20 WHERE PATIENTS HAVE OTHER DRUGS ON BOARD, DOES THAT CREATE
21 ANY CHANGE IN YOUR OPINION?
22 A. I THINK, ALONG WITH THE MORPHINE, OTHER DRUGS, SOME OF
23 THE ORGAN DAMAGE THAT I REFERRED TO PREVIOUSLY, AS FAR AS
24 DAMAGE FROM HYPOXIA, DAMAGE FROM LOW BLOOD PRESSURE, A
25 COMBINATION OF THOSE THINGS CLEARLY CAN RESULT IN
4113
1 CHEYNE-STOKES BREATHING.
2 Q. OKAY. IN RESPECT TO THE PATIENT LYDIA SMITH, THERE'S
3 BEEN TESTIMONY ABOUT BALANCING MEDS. CAN YOU TELL US WHAT
4 THAT MEANS TO YOU?
5 A. THAT'S NOT A COMMON TERM, BUT I WOULD INTERPRET THAT TO
6 MEAN THAT THE BENEFICIAL EFFECTS AND THE DETRIMENTAL EFFECTS
7 OF MEDICATIONS, AND COMBINATIONS OF MEDICATIONS, ARE KIND OF
8 WEIGHED AND CHANGED TO TRY TO EFFECT THE BEST RESULT.
9 Q. OKAY. LET ME FIND HER CHART HERE. (PAUSE.) I'LL REFER
10 YOU TO WHAT WAS PREVIOUSLY MARKED AS STATE'S EXHIBIT 37.
11 CAN YOU TELL US, DOCTOR, IN LOOKING AT THAT PARTICULAR
12 EXHIBIT, CAN YOU CHARACTERIZE WHETHER OR NOT THE MEDS WERE
13 BEING BALANCED IN THIS PARTICULAR SITUATION?
14 MR. STIRBA: I'LL OBJECT. LACK OF FOUNDATION.
15 THE COURT: LAY A FOUNDATION.
16 Q. (BY MR. WILSON) DOCTOR, HAVE YOU HAD AN OPPORTUNITY TO
17 REVIEW THE CHART THAT'S BEFORE YOU THERE?
18 A. I HAVE.
19 Q. AND YOU'VE ALSO HAD AN OPPORTUNITY TO REVIEW THE RECORDS
20 OF LYDIA SMITH?
21 A. YES, I HAVE.
22 Q. AND DO THE DOSAGE AMOUNTS THAT YOU SEE ON THE CHART
23 BEFORE YOU CORRESPOND TO YOUR RECOLLECTION AS TO THE AMOUNTS
24 YOU REVIEWED IN THE RECORD?
25 A. YES.
4114
1 Q. YOU PREVIOUSLY TESTIFIED, I THINK, AND HAVE REVIEWED
2 THAT CHART ON OTHER OCCASIONS, IS THAT CORRECT?
3 A. THAT'S CORRECT.
4 Q. OKAY. BASED UPON YOUR REVIEW OF THE CHARTS AND YOUR
5 REVIEW OF THE MEDICATIONS THAT -- A REVIEW OF THAT CHART AND
6 THE MEDICATIONS IN THE RECORD, DO YOU HAVE AN OPINION AS TO
7 WHETHER OR NOT THERE WAS ANY BALANCING OF THE MEDICATIONS AS
8 YOU'VE PREVIOUSLY DESCRIBED IT HEREIN?
9 A. AGAIN, THIS WOULD -- CERTAINLY THE TREND OF THE CHART IS
10 AN EVER INCREASING DOSING OF MEDICATIONS AND PRESCRIBING OF
11 MEDICATIONS. AT THE SAME TIME THE CHART -- THE HOSPITAL
12 RECORD WOULD INDICATE AN EVER INCREASING AMOUNT OF SIDE
13 EFFECTS, PROBLEMS, COMPROMISES OF THE PATIENT. I WOULDN'T
14 CALL THAT BALANCING AT ALL, NO.
15 Q. OKAY. DOCTOR, ARE YOU FAMILIAR WITH THE TERM DYSPNEA?
16 A. I AM.
17 Q. AND CAN YOU TELL US WHAT THAT MEANS?
18 A. THAT MEANS LABORED OR UNCOMFORTABLE BREATHING, I THINK
19 IS PROBABLY THE BEST WAY TO PUT IT.
20 Q. DO YOU EVER PRESCRIBE MORPHINE FOR DYSPNEA?
21 A. I HAVE.
22 Q. IN YOUR REVIEW OF THE MEDICAL RECORDS OF THESE FIVE
23 PATIENTS, CAN YOU TELL US WHETHER YOU SAW ANY SIGNS OR
24 SYMPTOMS THAT THESE PATIENTS WERE SUFFERING FROM DYSPNEA?
25 A. I SAW NO INDICATION THAT THEY WERE.
4115
1 Q. OKAY. I DON'T KNOW IF I NEED TO -- YOU ARE FAMILIAR
2 WITH THE RECORDS OF JUDITH LARSEN, IS THAT CORRECT?
3 A. YES, I AM.
4 Q. ARE YOU FAMILIAR THAT THERE WERE CERTAIN SHOTS OF
5 MORPHINE WITHHELD -- MAYBE WE OUGHT TO GET HER CHART OUT.
6 (PAUSE.) ARE YOU FAMILIAR WITH THE FACT THAT THERE WERE
7 CERTAIN MORPHINE SHOTS WITHHELD BY A NURSE IN CONNECTION
8 WITH, I THINK, JANUARY 2ND, OR MAYBE THE 3RD?
9 A. THERE WERE TIMES ON THE 3RD WHEN MORPHINE WAS WITHHELD,
10 YES.
11 Q. OKAY. NOW, THERE WAS ADDITIONAL SHOTS OF MORPHINE
12 ORDERED SUBSEQUENT TO THAT WITHHOLDING, WAS THERE NOT?
13 A. YES.
14 Q. FROM YOUR REVIEW OF THE RECORDS, CAN YOU TELL US WHETHER
15 OR NOT YOU HAVE AN OPINION AS TO WHETHER OR NOT THE
16 ADDITIONAL SHOTS THAT WERE ADMINISTERED WERE TO GET THE PAIN
17 UNDER CONTROL? MAYBE I CAN REPHRASE THE QUESTION.
18 THE COURT: GO AHEAD.
19 Q. (BY MR. WILSON) ASSUMING THAT THE SHOTS WERE WITHHELD
20 IN CONNECTION WITH JUDITH LARSEN, DID YOU SEE OR OBSERVE
21 ANYTHING IN THE RECORD WHICH WOULD REFLECT THE NECESSITY OF
22 GIVING ADDITIONAL SHOTS TO BRING THE PAIN UNDER CONTROL?
23 A. NO, I SAW NO INDICATION THAT THAT WAS NECESSARY.
24 Q. OKAY. DID YOU SEE -- THERE WAS ALSO RECORDS OF
25 ADDITIONAL SHOTS. DID YOU SEE A NECESSITY FOR GIVING
4116
1 ADDITIONAL SHOTS IN ADDITION TO THAT?
2 A. NO, I SAW NO INDICATION THAT THIS NEEDED TO BE DONE.
3 Q. DID YOU SEE A NEED TO PROVIDE ADDITIONAL MORPHINE TO
4 JUDITH LARSEN ON THAT PARTICULAR DAY?
5 A. NO, I DID NOT.
6 Q. DOCTOR, IN YOUR PRACTICE HAVE YOU HAD OCCASION TO
7 PROVIDE COMFORT CARE TO DYING PATIENTS?
8 A. I HAVE.
9 Q. AND CAN YOU TELL US WHETHER OR NOT I.V.S ARE USED IN
10 CONNECTION WITH PROVIDING COMFORT CARE?
11 A. QUITE OFTEN THEY ARE, YES.
12 Q. OKAY. CAN YOU TELL US WHAT A -- I THINK IT'S CALLED A
13 PUMP DEVICE, IS?
14 A. ONE MEANS OF ADMINISTERING DRUGS LIKE MORPHINE TO A
15 PATIENT IN A COMFORT CARE SITUATION COULD BE USING A PUMP
16 DEVICE THAT GIVES A CONSTANT DOSE.
17 Q. CAN YOU TELL US WHETHER OR NOT, IN YOUR PRACTICE, THE
18 ADMINISTERING OF MORPHINE IN THAT FASHION IS MORE
19 COMFORTABLE THAN GIVING AN I.M. INJECTION?
20 MR. STIRBA: OBJECTION. RELEVANCY AS TO THE
21 STANDARD.
22 THE COURT: SUSTAINED.
23 MR. WILSON: I DON'T THINK I HAVE ANY FURTHER
24 QUESTIONS, YOUR HONOR.
25 THE COURT: MR. STIRBA.
4117
1 CROSS-EXAMINATION (REBUTTAL)
2 BY MR. STIRBA:
3 Q. DOCTOR, YOU TESTIFIED ABOUT DOUBLE EFFECT AND THAT THAT
4 USUALLY IS USED IN CONJUNCTION WITH MEDICATION, IS THAT
5 RIGHT?
6 A. THAT'S RIGHT.
7 Q. SPECIFICALLY, WHAT DOUBLE EFFECT MEANS IS THAT YOU GIVE
8 SOME MEDICATION FOR A THERAPEUTIC PURPOSE, KNOWING THAT
9 THERE IS A RISK THAT MAY BE ENCOUNTERED WHICH MAY BE
10 DETRIMENTAL, IS THAT TRUE?
11 A. THAT'S RIGHT.
12 Q. FOR EXAMPLE, WHEN YOU GIVE MORPHINE, YOU GIVE MORPHINE
13 KNOWING THAT THERE IS A RISK OF RESPIRATORY DEPRESSION,
14 WHICH CAN BE IN FACT TERMINAL. SOMETIMES YOU GIVE THE
15 MORPHINE TO DEAL WITH THE PAIN, RUNNING THE RISK THAT THERE
16 MAY BE A TERMINAL RESULT AS A RESULT OF THE USE OF MORPHINE,
17 ISN'T THAT TRUE?
18 A. THAT'S TRUE.
19 Q. FOR EXAMPLE, YOU TESTIFIED ALREADY THAT YOU AGREE WITH
20 THIS STATEMENT, PROMULGATED BY THE AMA, WHICH RELATES TO
21 THIS VERY SAME THING OF DOUBLE EFFECT. THAT IS, "PHYSICIANS
22 HAVE AN OBLIGATION TO RELIEVE PAIN AND SUFFERING AND TO
23 PROMOTE THE DIGNITY AND AUTONOMY OF DYING PATIENTS IN THEIR
24 CARE." YOU AGREE WITH THAT, CORRECT?
25 A. YES.
4118
1 Q. "THIS INCLUDES PROVIDING EFFECTIVE PALLIATIVE TREATMENT
2 EVEN THOUGH IT MAY FORESEEABLY HASTEN DEATH." DO YOU AGREE
3 WITH THAT STATEMENT?
4 A. I DO, YES.
5 Q. NOW, YOU TESTIFIED ABOUT, I THINK YOU SAID, WHEN YOU
6 LOOKED AT THE RECORD YOU SAW NO COMPLAINTS OF PAIN, DO YOU
7 REMEMBER THAT?
8 A. IN REGARD TO?
9 Q. IN REGARD TO A QUESTION THAT MR. WILSON JUST ASKED YOU.
10 A. I'M SORRY, I DON'T REMEMBER THE CONTEXT OF THAT
11 QUESTION.
12 Q. OKAY. BUT YOU HAVE TESTIFIED ABOUT LOOKING IN THE
13 RECORDS AND SEEING NO COMPLAINTS OF PAIN, HAVEN'T YOU?
14 A. AGAIN, I'M NOT SURE IN REGARDS TO WHICH PATIENT.
15 Q. HOW ABOUT WITH RESPECT TO ANY ONE OF THESE FIVE
16 PATIENTS?
17 A. WELL, I THINK, FIRST OF ALL, THESE PATIENTS,
18 PARTICULARLY IN THE LATTER PART OF THEIR HOSPITALIZATIONS,
19 WERE LARGELY UNCONSCIOUS AND TECHNICALLY COULD NOT COMPLAIN
20 OF PAIN.
21 Q. THAT'S ALSO TRUE AT THE BEGINNING OF THEIR
22 HOSPITALIZATION, ISN'T THAT TRUE?
23 A. THE PATIENTS, ACCORDING TO RECORDS PRIOR TO COMING INTO
24 THE HOSPITAL, CERTAIN OF THE PATIENTS COULD IN FACT ANSWER
25 QUESTIONS.
4119
1 Q. THAT WASN'T MY QUESTION, SIR. IT'S TRUE, IS IT NOT --
2 A. THEY COULD ANSWER --
3 THE COURT: EXCUSE ME. YOU DON'T BOTH TALK AT THE
4 SAME TIME.
5 Q. (BY MR. STIRBA) IT'S TRUE, IS IT NOT, THAT THAT'S ONE
6 OF THE PROBLEMS OF PEOPLE WHO ARE SEVERELY DEMENTED, THAT
7 THEY CAN'T SELF REPORT AND COMPLAIN OF PAIN, ISN'T THAT
8 CORRECT?
9 A. IT JUST DEPENDS ON THEIR PRESENTATION. SOME OF THESE
10 PATIENTS COULD IN FACT, ON INITIAL EVALUATION, IT WAS FELT
11 GIVE A REPORT WHETHER THEY WERE HAVING PAIN OR NOT.
12 Q. YES. THAT WAS MARY CRANE, THAT'S THE ONLY ONE, ISN'T
13 THAT TRUE?
14 A. I REMEMBER AT LEAST THAT ONE, YES.
15 Q. AND IN FACT MARY CRANE WAS THE ONLY ONE AND SHE IN FACT
16 COMPLAINED OF SIGNIFICANT PAIN, ISN'T THAT TRUE?
17 A. THERE MUST BE ANOTHER ONE THEN, BECAUSE I KNOW THERE WAS
18 AT LEAST ONE OTHER THAT HAD NO COMPLAINTS AT THE TIME OF
19 ADMISSION.
20 Q. YES. IN OTHER WORDS, ONCE AGAIN, SEVERELY DEMENTED SO
21 THAT THEY COULDN'T ARTICULATE WHAT PRECISELY WAS GOING ON IN
22 TERMS OF THEIR PAIN, ISN'T THAT TRUE?
23 A. I THINK THAT'S VERY MUCH A JUDGMENT CALL. IF THE
24 PATIENT -- YOU KNOW, YOU CAN ASK IF YOU FEEL PAIN AND YOU
25 CAN GET AN ANSWER FROM A PATIENT AND THAT PATIENT SAYS --
4120
1 RESPONDS IN A NEGATIVE WAY TO A QUESTION OF WHETHER THEY'RE
2 HAVING PAIN. YOU CAN SAY THEY'RE DEMENTED, THEY DON'T KNOW
3 WHAT THEY'RE TALKING ABOUT, OR YOU CAN ACCEPT THAT ANSWER.
4 Q. SURE. YOU SAY IT'S A JUDGMENT CALL. YOU UNDERSTAND
5 THAT THERE HAVE BEEN SOME STUDIES IN THIS VERY AREA OF
6 DEALING WITH PAIN MANAGEMENT AND SEVERELY DEMENTED PEOPLE,
7 ARE YOU NOT?
8 A. I AM.
9 Q. IN FACT, YOU KNOW, DO YOU NOT, THAT THE AMERICAN MEDICAL
10 ASSOCIATION JUST LAST WEEK, IN THEIR OWN JOURNAL, HAD A
11 STUDY DEALING WITH SEVERELY DEMENTED PEOPLE AND WHETHER OR
12 NOT THEY WERE GETTING TREATED ADEQUATELY FOR THEIR PAIN?
13 ARE YOU AWARE OF THAT?
14 A. I'M AWARE THAT THERE WAS ONE, YES.
15 Q. ARE YOU AWARE OF THE FINDING IN THAT STUDY THAT THE
16 AUTHORS THEORIZED, BECAUSE OF THEIR STUDY, THAT DOCTORS
17 WITHHELD PAINKILLERS OUT OF THE MISTAKEN ASSUMPTION THAT
18 SEVERELY DEMENTED PATIENTS WEREN'T IN PAIN BECAUSE THEY
19 COULD NOT ARTICULATE THE PAIN, ARE YOU AWARE OF THAT?
20 A. I HAVE NOT SEEN THAT STUDY. I'VE NOT HAD A CHANCE TO
21 REVIEW IT. I CANNOT COMMENT ON IT BECAUSE I DO NOT KNOW IF
22 THE METHODOLOGY IS VALID.
23 Q. YOU TESTIFIED ABOUT CHEYNE-STOKES BREATHING. IT'S TRUE,
24 IS IT NOT, DOCTOR, THAT CHEYNE-STOKES BREATHING IS A DEATH
25 AND DYING PHENOMENON, CORRECT?
4121
1 A. IT CAN BE, BUT NOT EXCLUSIVELY.
2 Q. IT'S TRUE, IS IT NOT, THAT, FOR EXAMPLE, ELLEN ANDERSON,
3 WHEN IT WAS REPORTED BY THE NURSE AT ONE O'CLOCK A.M. ON THE
4 30TH OF DECEMBER THAT SHE HAD A LOW BLOOD PRESSURE, I THINK
5 70 OVER 50, THAT CERTAINLY COULD HAVE BEEN THE RESULT OF THE
6 FACT THAT SHE HAD PNEUMONIA AT THAT TIME, TRUE?
7 A. THIS PATIENT WAS ADMITTED A FEW HOURS EARLIER TO THE
8 HOSPITAL AND HAD NO CLINICAL INDICATIONS OF PNEUMONIA. I
9 WOULD SAY NO.
10 Q. OKAY. JUST SO I UNDERSTAND THIS, YOU UNDERSTAND THAT
11 THERE WAS A CHEST X-RAY DONE AT 5:00 A.M. IN THE MORNING
12 THAT SHOWED ACUTE PNEUMONIA, ARE YOU AWARE OF THAT?
13 A. THERE WAS A CHEST FILM DONE AFTER THIS PATIENT HAD BEEN
14 HYPOXIC FOR MANY HOURS, HAD BEEN RUNNING A VERY LOW BLOOD
15 PRESSURE FOR MANY HOURS. I WOULD SAY AT THAT POINT IT WOULD
16 BE HARD TO MAKE ANY CONCLUSIONS.
17 Q. LET ME ASK YOU THIS QUESTION. YOU WERE AWARE OF A CHEST
18 X-RAY AT 5:00 A.M.?
19 A. YES.
20 Q. YOU'RE AWARE THAT THAT SHOWED PNEUMONIA?
21 A. I DON'T REMEMBER THE EXACT WORDING ON THAT. ATELECTASIS
22 VERSUS PNEUMONIA.
23 Q. YOU'RE AWARE --
24 A. AS I SAY, I DON'T REMEMBER. IF THAT'S THE CASE THAT
25 DOESN'T NECESSARILY SAY THERE WAS PNEUMONIA.
4122
1 Q. SO YOUR OPINION IS SHE DIDN'T HAVE PNEUMONIA, IS THAT
2 WHAT YOU'RE TELLING US?
3 A. THERE CERTAINLY DIDN'T SEEM TO BE ANY CLINICAL
4 INDICATION AT THE TIME OF ADMISSION.
5 Q. ARE YOU AWARE OF THE CORONER'S REPORT WITH RESPECT TO
6 HIS FINDINGS IN THE AUTOPSY AND THE CONDITION OF HER LUNGS?
7 ARE YOU AWARE OF THAT, SIR?
8 A. I AM. I'D HAVE TO LOOK AT IT AGAIN.
9 Q. ARE YOU AWARE OF THE FACT THAT HE DETERMINED, AS A
10 RESULT OF HIS AUTOPSY, THAT SHE WAS SUFFERING ACUTE
11 PULMONARY PROBLEMS AT THE TIME OF HER DEATH, ARE YOU AWARE
12 OF THAT?
13 A. I THINK, BECAUSE OF THE COMPROMISE IN HER BREATHING --
14 Q. I DIDN'T ASK YOU THAT, SIR. I ASKED YOU ARE YOU AWARE
15 OF THAT FACT?
16 THE COURT: LET HIM FINISH.
17 Q. (BY MR. STIRBA) ARE YOU AWARE OF THAT FACT?
18 THE WITNESS: WHO GETS TO FINISH?
19 THE COURT: YOU FINISH YOUR ANSWER. WAIT UNTIL
20 HE'S DONE AND DON'T TALK OVER EACH OTHER. FINISH YOUR
21 ANSWER.
22 THE WITNESS: I THINK ANY SORT OF ACUTE PULMONARY
23 PROBLEM CAN EASILY BE EXPLAINED BY A PATIENT WHO HAS HAD
24 HYPOXIA, A PATIENT WHO HAS HAD A VERY LOW BLOOD PRESSURE, A
25 PATIENT WHO HAS PROBABLY SUSTAINED CARDIAC DAMAGE DUE TO
4123
1 THOSE THINGS. A PATIENT WHO THEN IS GOING TO HAVE
2 CONGESTION IN THE LUNGS DUE TO CARDIAC DAMAGE RESULTING FROM
3 ALL -- ALL OF THIS RESULTING FROM THE MORPHINE.
4 Q. (BY MR. STIRBA) SURE. WE'RE AWARE EVERYTHING IS
5 RELATED TO MORPHINE IN YOUR OPINION. BUT YOU'RE AWARE THAT
6 MS. ANDERSON HAD CONGESTIVE HEART FAILURE BEFORE SHE EVER
7 ENTERED THE UNIT?
8 A. SHE WAS NOT ACUTELY ILL FROM CONGESTIVE HEART FAILURE.
9 Q. I DIDN'T SAY THAT, SIR. I ASKED ARE YOU AWARE, BASED
10 UPON YOUR REVIEW OF THE HISTORICAL RECORDS, WHICH YOU DID
11 NOT REVIEW IN YOUR PRIOR TESTIMONY, PERHAPS YOU HAVE NOW,
12 THAT DR. WILDING DIAGNOSED HER AS HAVING CONGESTIVE HEART
13 FAILURE? ARE YOU AWARE OF THAT?
14 A. SHE HAD A HISTORY OF THAT.
15 Q. AND ISN'T IT TRUE THAT IF YOU HAVE CONGESTIVE HEART
16 FAILURE, YOU MAY VERY WELL HAVE A LOW BLOOD PRESSURE OF 70
17 OVER 50, ISN'T THAT TRUE?
18 A. AGAIN, THAT IS NOT THE CONDITION THIS PATIENT CAME INTO
19 THE HOSPITAL WITH, SO I WOULD SAY THAT WAS NOT THE REASON
20 FOR HER PROBLEMS, THAT WAS NOT THE REASON FOR HER DEMISE.
21 Q. NOW, IN TERMS OF A RESPIRATION RATE, IT'S TRUE, IS IT
22 NOT, AS A MATTER OF FACT, WITH THE RECORDS THAT YOU HAVE
23 REVIEWED, THAT HER RESPIRATION RATES, AS CHARTED BY THE
24 NURSES, WERE 26, 16; AND, AS CHARTED BY NURSE SCHOLLS AT ONE
25 A.M., EIGHT TO 16? THOSE ARE THE ONLY RESPIRATION
4124
1 REFERENCES IN THE ENTIRE CHART, ISN'T THAT TRUE?
2 A. THAT'S CORRECT.
3 Q. AND IT'S TRUE, IS IT NOT, YOU DO NOT KNOW, AS YOU SIT
4 HERE NOW, WHEN NURSE SCHOLLS SAID AT ONE A.M. RESPIRATION
5 RATE SIX TO 18 -- I'M SORRY, EIGHT TO 16 -- YOU DON'T
6 PRECISELY KNOW WHEN SHE TOOK THOSE RESPIRATIONS, DO YOU?
7 A. I DON'T.
8 Q. NOW, IT'S TRUE, IS IT NOT, DOCTOR, THAT ENNIS ALLDREDGE,
9 AT THE END -- TOWARDS THE END OF HIS LIFE WAS GASPING FOR
10 BREATH AS NOTED BY NURSE HARDEY?
11 A. HE WAS UNCONSCIOUS, AS I RECALL.
12 Q. OKAY. MY QUESTION IS DO YOU REMEMBER THAT TOWARDS THE
13 END OF MR. ALLDREDGE'S LIFE HE WAS GASPING FOR BREATH, AS
14 NOTED BY NURSE HARDEY?
15 A. I CAN REVIEW THOSE RECORDS AGAIN. I SUSPECT, SINCE
16 YOU'RE BRINGING THAT UP, THAT YOU COULD POINT ME TO IT.
17 Q. I'M NOT GOING TO. YOU EITHER KNOW IT OR YOU DON'T.
18 A. I'M SORRY, I DIDN'T MEMORIZE ALL OF THESE RECORDS AND
19 EVERY LITTLE DETAIL.
20 Q. AND IT'S TRUE, IS IT NOT, THAT GASPING IS IN FACT A
21 SYMPTOM, OR CAN BE A SYMPTOM, OF THIS D WORD, TRUE?
22 A. IN A CONSCIOUS PATIENT, PERHAPS.
23 Q. WELL, IS IT OR IS IT NOT SYMPTOMATIC OF THE PHENOMENON
24 DYSPNEA, TRUE OR NOT?
25 A. DYSPNEA CARRIES WITH IT A LEVEL OF DISTRESS, A LEVEL OF
4125
1 DISCOMFORT, A CONSCIOUS LEVEL OF DISCOMFORT. IN A PATIENT
2 WHO IS UNCONSCIOUS, BY DEFINITION THEY CANNOT HAVE DYSPNEA.
3 Q. OKAY. I DIDN'T ASK YOU THAT, SIR.
4 A. THEY CAN HAVE LABORED BREATHING.
5 Q. IT'S TRUE, IS IT NOT, THAT DYSPNEA IS AIR HUNGER?
6 A. AGAIN, AIR HUNGER IMPLIES A CONSCIOUS ANXIETY, DISTRESS
7 AROUND BREATHING.
8 Q. RIGHT. GASPING FOR BREATH, ISN'T THAT WHAT WE MEAN WHEN
9 WE SAY AIR HUNGER?
10 A. IT IS.
11 MR. STIRBA: THAT'S ALL.
12 THE COURT: ANY REDIRECT?
13 MR. WILSON: JUST A COUPLE OF QUESTIONS.
14 REDIRECT EXAMINATION (REBUTTAL)
15 BY MR. WILSON:
16 Q. DOCTOR, YOU WERE ASKED ABOUT DOUBLE EFFECT. DID YOU SEE
17 THAT PARTICULAR METHODOLOGY USED IN CONNECTION WITH ANY OF
18 THESE FIVE PATIENTS?
19 A. I DID NOT.
20 Q. I REFER YOU -- HAVE YOU GOT ENNIS ALLDREDGE'S FILE
21 THERE?
22 A. YES, I DO.
23 Q. TAKE A LOOK AT PAGE -- MED PAGE 78 IN HIS FILE.
24 A. (WITNESS COMPLIED.)
25 Q. IT BEARS THE DATE OF 1/14/96.
4126
1 A. I HAVE THAT PAGE IN FRONT OF ME.
2 Q. OKAY. REFERRING DOWN TO THE NOTE AT 0930 HOURS, CAN YOU
3 READ THAT NOTE, PLEASE.
4 A. YES, I CAN. "PATIENT CONDITION DECLINING. RESPIRATIONS
5 Q 80 SECONDS," OR EVERY 80 SECONDS, "WITH GASPING NOTED."
6 Q. DOES THAT REFLECT THE CONDITION OF DYSPNEA TO YOU?
7 A. ABSOLUTELY NOT. THIS IS WHAT WE REFER TO AS AGONAL
8 BREATHING. IN A PATIENT WHO IS ABOUT TO DIE THE PATIENT
9 ONCE IN A WHILE TAKES A BREATH.
10 MR. WILSON: ALL RIGHT. THANK YOU, DOCTOR.
11 NOTHING FURTHER.
12 MR. STIRBA: NOTHING FURTHER, YOUR HONOR. THANK
13 YOU.
14 THE COURT: YOU MAY STEP DOWN. CALL YOUR NEXT
15 REBUTTAL WITNESS.
16 MR. WILSON: YOUR HONOR, I'VE BEEN ADVISED THAT WE
17 HAVE NO FURTHER WITNESSES AVAILABLE AT THE PRESENT TIME.
18 THE COURT: OKAY. ARE YOU GOING TO HAVE SOME
19 TOMORROW OR WHAT IS THE PLAN?
20 MR. WILSON: WE ANTICIPATE TO HAVE SOME IN THE
21 MORNING. I WOULD REPRESENT TO THE COURT THAT WE'LL MAKE
22 SOME PROFFERS RELATIVE TO THOSE WITNESSES PREVIOUS TO THEIR
23 TESTIMONY. WE'LL TRY TO MAKE THEM AVAILABLE AS EARLY IN THE
24 MORNING AS POSSIBLE.
25 THE COURT: OKAY. LADIES AND GENTLEMEN, WHAT I'M
4127
1 GOING TO DO IS I HAVE A FEW THINGS TO ADDRESS WITH THE
2 ATTORNEYS BEFORE YOU ARE RELEASED FOR TODAY. IF YOU WILL GO
3 WITH THE BAILIFF WE'LL JUST BE A SHORT TIME.
4 DURING THAT TIME REMEMBER THAT IT IS YOUR DUTY NOT TO
5 CONVERSE AMONG YOURSELVES OR TO CONVERSE WITH OR ALLOW
6 YOURSELVES TO BE ADDRESSED BY ANY PERSON REGARDING THE
7 SUBJECT OF THIS TRIAL. IT IS YOUR DUTY NOT TO FORM OR
8 EXPRESS AN OPINION UNTIL YOU'VE HEARD ALL THE EVIDENCE AND
9 THE CASE IS FINALLY SUBMITTED TO YOU.
10 IF YOU'LL GO WITH THE BAILIFF AT THIS TIME.
11 (JURY OUT OF THE COURTROOM.)
12 THE COURT: THE RECORD WILL REFLECT THAT JURY HAS
13 LEFT THE COURTROOM. WHO WOULD YOU INTEND TO CALL TOMORROW?
14 MR. WILSON: YOUR HONOR, WE HAVE DR. CROOKSTON, DR.
15 FEHLAUER AND DOCTOR -- AND BARBARA POHLMAN.
16 THE COURT: DR. CROOKSTON, DR. FEHLAUER AND BARBARA
17 POHLMAN?
18 MR. WILSON: BARBARA POHLMAN AND HER HUSBAND, MR.
19 MAJOR TELLS ME. I KNOW THAT -- THERE MAY BE SOME
20 ANTICIPATED TESTIMONY FROM SOME OTHERS, BUT I NEED TO HAVE A
21 MINUTE TO MEET WITH CO-COUNSEL TO DETERMINE THAT.
22 I'VE JUST BEEN HANDED A NOTE, YOUR HONOR. WE ALSO HAVE
23 TRACY SCHOLLS AND BONNIE HARDEY. THERE'S A QUESTION MARK AS
24 TO DR. GREY. I DON'T KNOW WHETHER WE CAN GET HIM BACK
25 TOMORROW OR NOT.
4128
1 THE COURT: OKAY.
2 MR. WILSON: I WOULD ANTICIPATE THAT THAT WOULD BE
3 IT.
4 THE COURT: WHEN YOU SAY PROFFERS, I DIDN'T
5 UNDERSTAND WHAT YOU WERE MEANING. YOU MEAN SOMETHING IN
6 WRITING?
7 MR. WILSON: YES.
8 THE COURT: OKAY. THERE'S TWO OTHER THINGS THAT WE
9 NEED TO WORK ON. WHEN WE MET ON MONDAY REGARDING THE JURY
10 INSTRUCTIONS, THERE WERE SOME THINGS THAT I HAD TO DECIDE IN
11 TERMS OF WHAT THE JURY WOULD BE INSTRUCTED, SO I ANTICIPATED
12 THAT WE NEED TO DO THAT. IT MAY BE THAT EVEN AFTER A SHORT
13 TIME THIS AFTERNOON THOSE MAY BE READY SO THAT YOU CAN TAKE
14 THE JURY INSTRUCTIONS AND THEN WE CAN DISCUSS THOSE.
15 WHAT DO YOU SUGGEST WE DO IN TERMS OF THE JURY IN TERMS
16 OF WHAT -- WHEN TO COME TOMORROW AND WHAT WE'RE GOING TO DO
17 IN TERMS OF HOW MUCH TIME YOU ANTICIPATE IF ALL OF THESE
18 WITNESSES ARE CALLED?
19 MR. WILSON: I WOULD ANTICIPATE WE SHOULD BE ABLE
20 TO EASILY ACCOMMODATE THEM WITHIN THE MORNING TIME FRAME,
21 YOUR HONOR. PERHAPS ARGUE THE JURY INSTRUCTIONS OR ANY
22 FURTHER DISCUSSIONS AS RELATES TO THOSE IN THE AFTERNOON.
23 ALSO AS TO OTHER MATTERS THAT MAY BE BROUGHT BEFORE THE
24 COURT AT THAT TIME.
25 THE COURT: OKAY. DO YOU AGREE WITH THAT?
4129
1 MR. STIRBA: IF THERE ARE WITNESSES I ASSUME THAT
2 THAT'S CORRECT. THE ONLY THING I WOULD LIKE IS THAT IF WE
3 CAN HAVE A SPECIFIC PROFFER WITH RESPECT TO THE NEW
4 WITNESSES MENTIONED. I'M SURE WE'LL HAVE SOME PROBLEMS WITH
5 THEM.
6 THE COURT: OKAY. WHEN COULD WE ANTICIPATE HAVING
7 THE JURY BACK? I'D RATHER HAVE THAT RESOLVED -- I'D LIKE TO
8 TELL THE JURY, OKAY, GO HOME TODAY AND COME HERE AT 8:30.
9 YOU'LL PROBABLY BE HERE FROM 8:30 TO NOON ON FRIDAY. THEN
10 YOU'LL BE RELEASED UNTIL MONDAY WHEN WE'LL HAVE THE CLOSING
11 ARGUMENTS.
12 MR. WILSON: IF WE CAN HAVE AN HOUR, I THINK WE CAN
13 HAVE THOSE PROFFERS READY FOR YOU.
14 THE COURT: I'M NOT GOING ANYWHERE. LET'S LET THE
15 JURY GO AND I WILL SEE ABOUT GETTING YOU THE JURY
16 INSTRUCTIONS. IF I CAN'T GET ALL OF THEM TO YOU I'LL GET
17 MOST OF THEM TO YOU. THEN THERE WILL BE A FEW -- I MEAN,
18 THEY ARE BEING WORKED ON NOW.
19 WHY DON'T WE HAVE THE JURY COME BACK AND WE'LL RELEASE
20 THEM FOR TODAY. DO YOU AGREE TO LET THEM KNOW THAT WE'LL GO
21 PROBABLY FROM 8:30 TO ABOUT NOON, ROUGHLY, TOMORROW AND THEN
22 WE WOULD HAVE THE JURY INSTRUCTIONS AND CLOSING ARGUMENTS ON
23 MONDAY?
24 MR. WILSON: YES.
25 MR. STIRBA: YES. I MAY, YOUR HONOR, HAVE ONE
4130
1 SHORT SURREBUTTAL WITNESS. THAT WOULD BE, I THINK AT THIS
2 TIME, DR. ROTHFEDER, BUT I WILL HAVE TO SEE.
3 THE COURT: OKAY. DO YOU THINK WE CAN STILL GET
4 DONE BY NOON OR SO?
5 MR. STIRBA: YES. HE'LL BE SHORT.
6 THE COURT: OKAY. WE'LL HAVE THE JURY COME BACK IN
7 AND I'LL SEND THEM HOME.
8 (JURY RETURNED TO THE COURTROOM.)
9 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
10 HAS RETURNED. LADIES AND GENTLEMEN, HAVE YOU EVER BEEN ON A
11 TRAIL AND WHEN YOU GET AROUND THE LAST CURVE YOU SEE HOME?
12 WE'RE ABOUT THERE.
13 HERE'S WHAT WE'RE GOING TO DO NOW. THERE ARE A FEW
14 MORE WITNESSES THAT ARE GOING TO BE CALLED BY THE STATE IN
15 REBUTTAL. THEY'LL BE CALLED TOMORROW MORNING. ANY OTHER
16 WITNESSES WILL BE COMPLETED BY TOMORROW MORNING.
17 I'M NOT GOING TO START WITH JURY INSTRUCTIONS AND
18 CLOSING ARGUMENTS ON A FRIDAY AFTERNOON. WE'LL SEND YOU
19 HOME FOR THE WEEKEND. I WILL ASK YOU TO BE HERE TOMORROW AT
20 8:30. YOU MIGHT BE HERE FROM 8:30 TO 12, OR AT THE LATEST
21 MAYBE ONE. YOU WOULD THEN BE RELEASED FOR THE WEEKEND.
22 THEN COME MONDAY, THIS COMING MONDAY, WE WOULD HAVE THE JURY
23 INSTRUCTIONS, WHERE I GIVE YOU THE LAW THAT APPLIES TO THIS
24 CASE. THEN YOU WILL HEAR THE CLOSING ARGUMENTS OF THE
25 PARTIES.
4131
1 THEN THIS THING THAT I'VE TOLD YOU, IT'S YOUR DUTY NOT
2 TO FORM OR EXPRESS AN OPINION, WHEN THE CASE IS FINALLY
3 SUBMITTED TO YOU YOU CAN FORM AND EXPRESS OPINIONS ALL YOU
4 WANT AT THAT POINT. THAT'S GOING TO BE THE SCHEDULE.
5 I'LL RELEASE YOU NOW. YOU'LL BE ABLE TO GO HOME AND
6 COME BACK AT 8:30. IF WE HAVE TO GO A LITTLE PAST NOON
7 WE'LL DO IT, BUT THEN YOU'LL BE RELEASED IN THE AFTERNOON.
8 YOU WILL COME BACK HERE ON MONDAY MORNING AT 8:30 WHERE
9 WE'LL HAVE THE JURY INSTRUCTIONS AND CLOSING ARGUMENTS.
10 AS YOU LEAVE TODAY, REMEMBER, IT'S YOUR DUTY NOT TO
11 CONVERSE AMONG YOURSELVES OR ALLOW YOURSELVES TO BE
12 ADDRESSED BY ANY OTHER PERSON REGARDING THE SUBJECT OF THIS
13 TRIAL. IT'S YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION
14 THEREON UNTIL THE CASE IS FINALLY SUBMITTED TO YOU.
15 REMEMBER ALSO NOT TO LISTEN TO ANY RADIO, TELEVISION OR
16 NEWSPAPER REPORTS REGARDING THIS TRIAL.
17 WE'LL SEE YOU TOMORROW AT 8:30. WE'LL BE DONE AROUND
18 12.
19 (JURY OUT OF THE COURTROOM.)
20 THE COURT: THE JURY HAS LEFT THE COURTROOM. AS I
21 UNDERSTAND IT, YOU'RE GOING TO GET SOME WRITTEN PROFFERS TO
22 THE DEFENDANT. WHAT I WOULD LIKE TO DO IS HAVE THOSE
23 DISCUSSED TODAY SO THAT WE CAN KIND OF SET THE PARAMETERS OF
24 WHAT WE'LL DO TOMORROW MORNING. SO IF YOU WANT TO SEND A
25 COPY OF THOSE TO ME AS SOON AS YOU HAVE THEM OR CALL THE LAW
4132
1 CLERK. I WILL TRY AND FIND OUT ABOUT THE JURY INSTRUCTIONS.
2 IF I HAVE THOSE I WILL SEND THEM TO WHERE YOU'RE AT.
3 MR. WILSON: THANK YOU, YOUR HONOR.
4 THE COURT: THANK YOU.
5 (RECESS AT 2:30 P.M.)
6 THE COURT: FOR THE RECORD WE'RE HERE WITH THE JURY
7 NOT PRESENT. I'LL LET COUNSEL KNOW I HAVE TO LEAVE AT 4:30
8 TODAY. THAT'S WHY WE MADE OUR SCHEDULE FROM EIGHT TO 4:30.
9 IF WE CAN'T GET THINGS ALL DONE THIS AFTERNOON, WE HAVE THE
10 JURY COMING BACK AT 8:30. WE MAY HAVE TO COME BACK AT EIGHT
11 IF WE DON'T HAVE EVERYTHING DONE THIS AFTERNOON.
12 I'VE BEEN GIVEN SOME STATEMENTS. I UNDERSTAND THAT
13 THESE ARE THE PROFFERS FOR THE REBUTTAL WITNESSES THAT WERE
14 LISTED BY MR. WILSON. I THINK THEY WERE JUST HANDED TO ME
15 AND PROBABLY JUST HANDED TO THE DEFENDANT. ARE THESE THINGS
16 THAT YOU WANT TO ADDRESS AT THIS TIME OR WAIT UNTIL TOMORROW
17 MORNING?
18 MR. STIRBA: MY PREFERENCE, JUDGE, WOULD BE TO DO
19 IT TOMORROW MORNING, PLEASE, AT EIGHT.
20 THE COURT: OKAY. ARE THESE WITNESSES ALL GOING TO
21 BE AVAILABLE, THOUGH, READY TO GO AT 8:30?
22 MR. WILSON: YES, YOUR HONOR.
23 THE COURT: ALL RIGHT. I'M HOPING THAT I CAN GIVE
24 YOU SOME JURY INSTRUCTIONS. THEY'RE JUST HAVING COPIES
25 MADE. WE CAN DO THAT ON OUR TIMING ALSO. CAN YOU EXPLAIN
4133
1 FOR ME -- I ALSO GOT AN EXHIBIT.
2 MR. WILSON: IT'S ACTUALLY ONE EXHIBIT. I SHOWED
3 COUNSEL THAT EXHIBIT AND REVIEWED IT WITH HIM BRIEFLY THE
4 OTHER DAY. I PROVIDED THEM WITH A COPY. THIS IS A
5 MEDICATION SUMMARY EXHIBIT THAT WE WANTED TO PROPOSE. I
6 ALSO LISTED ANN ARMSTRONG, WHO IS THE LADY IN MY OFFICE THAT
7 PREPARED THE EXHIBIT, AS A POSSIBLE POTENTIAL WITNESS.
8 I JUST WANTED TO ALLOW COUNSEL AN OPPORTUNITY TO LOOK
9 THROUGH THE WHOLE EXHIBIT. I KNOW THAT THEY HAD SOME
10 CONCERNS THAT THEY EXPRESSED TO ME BRIEFLY ABOUT IT.
11 PERHAPS WE CAN WORK IT OUT. I DON'T KNOW.
12 THE COURT: OKAY. WE'LL TALK ABOUT THAT. WILL A
13 HALF HOUR IN THE MORNING BE ENOUGH TIME TO GO THROUGH THESE
14 PROFFERS AND THE EXHIBIT?
15 MR. STIRBA: ACTUALLY, JUDGE, THERE IS ONE I
16 THINK -- ACTUALLY TWO I THINK WE CAN DEAL WITH FAIRLY
17 QUICKLY HERE AND SAVE SOME TIME FOR TOMORROW MORNING, IF THE
18 COURT DOESN'T MIND ME DEALING WITH THEM NOW.
19 THE COURT: OKAY.
20 MR. STIRBA: ONE OF THE PROFFERS --
21 THE COURT: YOU CAN DEAL UNTIL 4:30.
22 MR. STIRBA: ONE OF THE PROFFERS HAS TO DO WITH JAY
23 POHLMAN. IT'S THE ONE WITH BARBARA, HER HUSBAND. UNDER THE
24 CASE THAT WE CITED TO THE COURT, THE TURNER CASE, WHEN
25 YOU'RE DEALING WITH UNDISCLOSED, AND MR. POHLMAN HAS BEEN
4134
1 UNDISCLOSED HERETOFORE, WITNESSES, THE ONLY WAY YOU CAN USE
2 THEM AS REBUTTAL WITNESSES IS IF THEIR TESTIMONY COULD NOT
3 REASONABLY HAVE BEEN ANTICIPATED PRIOR TO TRIAL.
4 IN THE OPENING STATEMENT THE VERY POSITION OF THE STATE
5 WAS THAT THIS PARTICULAR PATIENT WAS NOT SEEN BY DR.
6 WEITZEL. THEREFORE, TO NOW INDICATE THAT THEY WANT TO CALL
7 MR. POHLMAN, WHO WAS UNDISCLOSED, I DON'T THINK AT ALL FITS
8 WITHIN THE REQUIREMENTS OF THE TURNER CASE AND THEREFORE HE
9 SHOULD NOT BE ABLE TO TESTIFY AS A REBUTTAL WITNESS.
10 THE SECOND ONE I'D LIKE TO ADDRESS, SIMPLY, IS BONNIE
11 HARDEY. THE PROFFER IS THAT SHE'LL TESTIFY THE DEFENDANT
12 CAME IN EARLY IN THE MORNING AND LATE IN THE EVENING WHEN
13 THE PATIENTS WERE IN BED AND DID NOT SPEAK WITH THESE
14 PATIENTS DURING THE RELEVANT TIME PERIOD. THE LAW OF THIS
15 CASE HAS BEEN WITH RESPECT TO THE SPECIFIC PATIENTS INVOLVED
16 AND SO THEREFORE THIS PARTICULAR CATEGORIZATION BY HER IS
17 JUST PLAIN IRRELEVANT.
18 THE COURT: OKAY.
19 MR. MAJOR: I'VE SPOKEN TO MR. POHLMAN. BASICALLY,
20 MR. POHLMAN IS BEING CALLED AS REBUTTAL TO DR. WEITZEL'S
21 TESTIMONY THAT HE SAW ELLEN ANDERSON. SPECIFICALLY, IN THE
22 OPENING STATEMENT DEFENSE COUNSEL DID INDICATE THAT THEY
23 WERE GOING TO PRODUCE EVIDENCE THAT DR. WEITZEL HAD SEEN
24 ELLEN ANDERSON. HOWEVER, THERE WAS NO TIME FRAME, NO
25 INDICATION OF WHETHER IT WAS AFTER SHE CAME INTO THE
4135
1 HOSPITAL, LATE AT NIGHT, EARLY IN THE MORNING. IT WAS ONLY
2 AFTER DR. WEITZEL TESTIFIED, AND I THINK HE SAID IT WAS
3 ABOUT 5:10 OR 5:00 O'CLOCK, AT THAT POINT IN TIME HE CAME IN
4 TO SEE ELLEN ANDERSON.
5 MR. POELMAN'S TESTIMONY THEN BECOMES RELEVANT. WE WERE
6 UNAWARE AND COULD NOT HAVE ANTICIPATED WHAT SPECIFIC TIME
7 DR. WEITZEL WAS GOING TO HAVE TO SEE THIS PATIENT.
8 SPECIFICALLY BOTH BARBARA AND JAY POHLMAN WILL TESTIFY THAT
9 THEY WERE WITH MS. ANDERSON FROM THE TIME THEY ARRIVED AT
10 THE HOSPITAL, AT APPROXIMATELY 4:00 O'CLOCK OR 4:30, UNTIL
11 7:30 IN THE EVENING WHEN THEY LEFT. THAT IS GOING
12 SPECIFICALLY TO THE REBUTTAL OF DR. WEITZEL'S TESTIMONY THAT
13 HE SAW HER AROUND 5:00 O'CLOCK. I THINK BARBARA POHLMAN,
14 WHEN SHE TESTIFIED AS A GENERAL WITNESS, DID INDICATE THAT
15 HER HUSBAND JAY WAS WITH HER AT THE TIME.
16 I DON'T THINK THIS IS ANY SURPRISE TO DEFENSE COUNSEL.
17 THEY WERE PRESENT AND ALSO HEARD THAT THE TWO OF THEM HAD
18 TAKEN ELLEN ANDERSON TO THE HOSPITAL DURING THIS PERIOD OF
19 TIME AND CHECKED HER IN.
20 THE COURT: OKAY. AS I UNDERSTAND IT, THERE'S NO
21 OBJECTION AS TO BARBARA, JUST JAY?
22 MR. STIRBA: I HAVE PROBLEMS WITH BARBARA TOO, BUT
23 AS TO JAY I THINK IT'S A MUCH CLEANER ISSUE BECAUSE HE'S
24 UNDISCLOSED. YOU KNOW, I MEAN, LET'S TALK ABOUT WHAT REALLY
25 THE FACTS ARE. WE KNOW SHE GOT THERE AT 4:00 O'CLOCK.
4136
1 EVERYBODY HAS KNOWN THAT FROM THE BEGINNING. THEY KNEW THAT
2 SHE WAS BROUGHT BY THESE TWO FAMILY MEMBERS. WE ALSO KNOW
3 THAT THERE WAS A MORPHINE INJECTION GIVEN AT 7:30. WE ALSO
4 KNOW IT WAS PURSUANT TO A TELEPHONE ORDER. THAT'S IN THE
5 RECORDS.
6 I MEAN, TO SUGGEST THAT SOMEHOW THEY DIDN'T KNOW DURING
7 WHAT RELEVANT TIME PERIOD DR. WEITZEL WAS GOING TO CLAIM
8 THAT HE SAW THE PATIENT, THAT JUST BELIES THE FACTS. THE
9 FACT OF THE MATTER IS THAT THEIR POSITION WAS, WITHOUT ANY
10 EQUIVOCATION, HE NEVER SAW THE PATIENT AT THE OPENING OF
11 THIS CASE. IT SEEMS TO ME THAT THE ONLY WINDOW OF TIME ON
12 THE 29TH THAT HE ARGUABLY COULD HAVE SEEN THIS PATIENT,
13 GIVEN THE INFORMATION THAT THEY HAD, WAS WITHIN THIS TIME
14 FRAME OF ADMISSION UNTIL THE 7:30 TELEPHONE ORDER FOR THE
15 MORPHINE INJECTION.
16 OBVIOUSLY, IF MR. POHLMAN AND MRS. POHLMAN BROUGHT
17 ELLEN TO THE HOSPITAL, IT SEEMS TO ME THAT IS CLEARLY WITHIN
18 THE REALM OF ANTICIPATED TESTIMONY. HE SHOULD HAVE BEEN
19 DISCLOSED. HE WASN'T DISCLOSED. YOU NOW CAN'T COME IN,
20 UNDER TURNER, AND USE HIM AS A REBUTTAL WITNESS. THE LAW IS
21 ABSOLUTELY CLEAR THAT IT'S NOT SOMETHING THAT YOU CAN USE IN
22 THIS FASHION WHERE IT CERTAINLY COULD HAVE REASONABLY BEEN
23 ANTICIPATED. I SUGGEST, GIVEN THE FACTS, IT WOULD HAVE BEEN
24 UNREASONABLE NOT TO ANTICIPATE IT.
25 THE COURT: ANYTHING FURTHER AS TO MR. POHLMAN?
4137
1 MR. MAJOR: JUST, YOUR HONOR, THAT THERE'S NO CASE
2 LAW, NO -- THE TURNER CASE DOESN'T ADDRESS THAT PARTICULAR
3 ISSUE. THE STATE DOES NOT HAVE TO ANTICIPATE EVERY SINGLE
4 DEFENSE AND THEN PLACE THAT WITNESS ON AS TO THEIR CASE IN
5 CHIEF. I MEAN, WE DID NOT KNOW SPECIFIC TIME FRAMES. WE
6 DIDN'T KNOW THE SPECIFIC CIRCUMSTANCES OF HOW DR. WEITZEL
7 WAS GOING TO TESTIFY THAT HE SAW THIS PATIENT. WE DIDN'T
8 KNOW IF HE SAW THE PATIENT AT THE REST HOME, BEFORE SHE CAME
9 TO THE HOSPITAL. ALL OF THOSE TYPES OF THINGS ARE SOMETHING
10 THAT THE STATE DID NOT ANTICIPATE AND WE'RE NOT REQUIRED TO
11 ANTICIPATE THOSE THINGS.
12 WE'RE SIMPLY CALLING THE WITNESS AS A REBUTTAL WITNESS
13 TO SAY THAT, HEY, I WAS WITH HER FROM 4:00 O'CLOCK UNTIL
14 7:30, NEVER LEFT HER SIDE, AND DR. WEITZEL DIDN'T COME IN
15 DURING THAT PERIOD OF TIME AS HE TESTIFIED HE DID ON THE
16 STAND. THAT GOES DIRECTLY TO HIS STATEMENT, TO REBUT HIS
17 STATEMENT. NOT TO REBUT EVIDENCE, NOT TO SAY WE COULD HAVE
18 ANTICIPATED IT, BUT TO REBUT THE STATEMENT HE GAVE TO THIS
19 JURY. IT'S NOT ANTICIPATION, IT'S A SPECIFIC STATEMENT MADE
20 BY A WITNESS THAT'S BEING REBUTTED BY ANOTHER WITNESS.
21 THAT'S THE WHOLE BASIS FOR REBUTTAL.
22 THE COURT: I'M GOING TO THINK THAT ONE OVER. WHAT
23 ABOUT BONNIE HARDEY?
24 MS. BARLOW: BONNIE HARDEY WILL TESTIFY AS TO THE
25 RELEVANT TIME FRAME, MEANING THE 6TH OF DECEMBER, 1995,
4138
1 THROUGH THE 14TH OF JANUARY, 1996. OF COURSE, SHE WILL ONLY
2 TESTIFY AS TO WHEN SHE WAS ON DUTY. I'M NOT SURE WHAT THE
3 OBJECTION IS, BECAUSE SHE WILL TESTIFY AS TO WHAT SHE SAW
4 WITH THIS DEFENDANT DURING THIS RELEVANT TIME PERIOD. AND
5 IT'S DURING THE TIME PERIOD WHEN THESE PEOPLE WERE ALL ON
6 THE UNIT SO IT'S DURING THE TIME PERIOD THAT IS RELEVANT TO
7 THESE FIVE PATIENTS.
8 THE COURT: WAS SHE GOING TO BE SAYING THAT HE SAW
9 THESE PATIENTS OR JUST THAT HE WAS THERE ON THE UNIT?
10 MS. BARLOW: THERE ON THE UNIT AND LOOKED IN ON THE
11 PATIENTS. I THINK SHE'LL TESTIFY THAT LOOKED IN ON WHATEVER
12 PATIENTS HAPPENED TO BE THERE AND THESE PATIENTS WERE THERE,
13 SO SHE WOULD BE TESTIFYING HE LOOKED IN ON THEM.
14 THE COURT: ANYTHING ELSE ON THAT ONE?
15 MR. STIRBA: YEAH. ONCE AGAIN IT HAS TO BE
16 SPECIFIC TO THESE PATIENTS. THE RECORDS ARE WHAT THEY ARE.
17 BONNIE HARDEY WASN'T TAKING CARE OF THESE PATIENTS
18 THROUGHOUT ALL THE TIME THAT THEY WERE THERE. FOR HER TO
19 JUST GENERALLY SAY, WELL, HE'D COME IN EARLY, LEAVE LATE AT
20 NIGHT, JUST SORT OF LOOK IN, IT'S IRRELEVANT.
21 WE HAVE TRIED THIS WHOLE CASE BASED UPON HIS CARE AND
22 TREATMENT OF THESE SPECIFIC PATIENTS AND THESE SPECIFIC
23 PATIENTS ONLY. TO ALLOW THIS KIND OF EVIDENCE IS
24 IRRELEVANT. AND, MORE IMPORTANTLY, WHAT PROBATIVE VALUE IS
25 IT? IT IS OF NO PROBATIVE VALUE WHATSOEVER OTHER THAN
4139
1 DRAWING SOME FLAKY INNUENDO THAT HE'S NOT A GOOD DOC. I
2 THINK THAT'S THE VERY THING THE COURT HAS ADDRESSED MORE
3 THAN ONCE IN THIS CASE.
4 THE COURT: ANYTHING FURTHER?
5 MS. BARLOW: YES. OF COURSE SHE WILL ONLY TESTIFY
6 AS TO WHEN SHE WAS THERE. SHE'S NOT GOING TO TESTIFY IN
7 GENERAL THAT HE DID THINGS EVERY DAY, BECAUSE SHE CAN ONLY
8 TESTIFY AS TO WHAT SHE SAW ON THE DAYS SHE WAS THERE.
9 IT GOES DIRECTLY TO THE STATEMENTS OF THE DEFENDANT AND
10 IT REBUTS THE STATEMENTS OF THE DEFENDANT ABOUT HIS PRESENCE
11 ON THE UNIT. SO I THINK -- IT'S NOT ABOUT WHETHER HE'S A
12 GOOD DOCTOR OR BAD DOCTOR. IT HAS TO DO WITH HOW HE TREATED
13 THESE PATIENTS. HE CAME IN, HE SAW THEM WHEN THEY WERE
14 ASLEEP. IT GOES TO WHETHER -- IT GOES TO HIS STATE OF MIND
15 AND IT GOES TO HIS DEPRAVED INDIFFERENCE. YOU GO IN, YOU
16 JUST LOOK AT PEOPLE SLEEPING. IT HAS NOTHING TO DO WITH
17 GOOD DOCTOR OR BAD DOCTOR. YOU LOOK AT PEOPLE SLEEPING AND
18 THEN MAKE CONCLUSIONS ABOUT THEIR CARE BASED ON THAT.
19 MR. STIRBA: ONCE AGAIN, NOT ONLY DO I NOT HEAR ANY
20 SPECIFICITY, BUT HIS TESTIMONY ON CROSS-EXAMINATION WAS,
21 WHEN HE WAS ASKED THAT QUESTION, HE BASICALLY SAID SOMETIMES
22 I DO, SOMETIMES I DON'T. HE DIDN'T MAKE SOME CATEGORICAL
23 STATEMENT. HE DIDN'T AGREE WITH THE STATEMENT. HE WAS
24 CLARIFYING WHAT HE SAID. SO THEREFORE WHAT IS IT REBUTTING?
25 THE COURT: I'LL LOOK AT THOSE, TOO. WE CAN
4140
1 DISCUSS THAT FURTHER IN THE MORNING.
2 ANYTHING ELSE WE NEED TO DISCUSS BEFORE I GIVE YOU
3 THESE JURY INSTRUCTIONS?
4 MR. STIRBA: NO, YOUR HONOR.
5 THE COURT: ANYTHING FROM THE STATE?
6 MR. WILSON: NOTHING.
7 THE COURT: WHAT I HAVE DONE ON THE JURY
8 INSTRUCTIONS, I'LL JUST EXPLAIN IT. THERE WERE SEVERAL
9 ITEMS, I THINK -- ONE OF THE ITEMS WAS THE ALTERNATIVE
10 HYPOTHESIS. THE STATE PROVIDED ME A CASE AND I DIDN'T BRING
11 IT OUT WITH ME. WHAT WAS THE NAME OF THE CASE? LYMAN, I
12 THINK.
13 MS. BARLOW: I THINK SO. I CAN'T REMEMBER THE NAME
14 FOR SURE.
15 THE COURT: THERE IS A UTAH CASE. I WILL SHOW IT
16 WHEN YOU WANT TO MAKE OBJECTIONS. YOU'RE NOT GOING TO MAKE
17 OBJECTIONS RIGHT NOW. THERE WAS A UTAH CASE THAT BASICALLY
18 SAID ABOUT WHETHER THE ALTERNATIVE HYPOTHESIS SHOULD GO
19 THERE. MY READING OF THAT CASE DOESN'T INDICATE THAT IT
20 SHOULD. I WILL TELL YOU WHAT THAT CASE IS. IN FACT, I'LL
21 GET IT BEFORE I LEAVE. SO I DON'T HAVE THAT ONE DOCUMENT OR
22 ONE -- OR THAT DEFENDANT'S INSTRUCTION THAT SAYS THE
23 ALTERNATE HYPOTHESIS. I HAVEN'T PUT THAT IN HERE.
24 THERE WAS AN ISSUE REGARDING THE ISSUES THAT SHOULD BE
25 SUBMITTED TO THE JURY BESIDES MURDER. THAT BEING
4141
1 MANSLAUGHTER, NEGLIGENT CRIMINAL HOMICIDE. THE UTAH CASES
2 THAT I'VE READ INDICATE THAT THAT SHOULD BE GIVEN ABSENT,
3 YOU KNOW, GOOD CAUSE. I REALLY THINK THAT PEOPLE WERE ON
4 NOTICE THAT IT IS AN ISSUE OF INTENT, IT'S NOT AN ISSUE OF
5 SOMETHING ELSE.
6 SO THESE INSTRUCTIONS, BASICALLY, SAY, FIRST OF ALL, DO
7 YOU FIND HIM GUILTY OF MURDER. IF NOT, IF IT DOESN'T PROVE
8 ONE OF THESE ELEMENTS, THEN LOOK AT MANSLAUGHTER. IF IT
9 DOESN'T PROVE THAT ELEMENT, MAYBE LOOK TO NEGLIGENT
10 HOMICIDE. SO IT GOES TO THOSE THREE FOR EACH OF THE
11 PATIENTS. SO I'VE INCLUDED THAT IN THOSE.
12 THEN THERE WAS THE ISSUE OF THE PERSONAL CHOICE AND
13 LIVING WILL ACT. I'M INCLUDING THE JURY INSTRUCTIONS ABOUT
14 THAT. I'M GIVING THE PROSECUTION ALL THE LESSER INCLUDED
15 OFFENSES. I'M GIVING THE PERSONAL CHOICE AND LIABILITY --
16 LIVING WILL ACT INSTRUCTIONS. I THINK THAT BOTH OF YOU CAN
17 ARGUE THOSE ISSUES.
18 THIS ISN'T THE FINAL SITUATION. YOU'LL GET A CHANCE
19 TOMORROW AFTERNOON TO DISCUSS THESE FURTHER. IF YOU CAN
20 CONVINCE ME THAT I'M WRONG IN THE LAW THEN WE CAN CHANGE
21 THEM BEFORE THEY GO TO THE JURY ON MONDAY.
22 I'LL ASK THAT -- I WAS TOLD BY SOMEONE THAT THIS IS THE
23 MOST JURY INSTRUCTIONS EVER GIVEN IN A CRIMINAL CASE THAT
24 THEY'VE SEEN. I THINK WE HAVE 59 INSTRUCTIONS.
25 THERE ARE SOME THINGS -- I THINK THOSE ARE THE MAIN --
4142
1 WERE THERE ANY OTHER CATEGORIES THAT WERE UNDER ADVISEMENT?
2 YOU'LL SEE THE INSTRUCTIONS THAT WAY. THERE WERE SOME THAT
3 I SAID I HAVEN'T RULED ON YET. I'VE EITHER PUT THEM IN OR
4 HAVEN'T. THERE WERE SOME THAT THE STATE ASKED AND SOME THAT
5 THE DEFENSE ASKED. THERE WERE SOME THAT YOU BOTH ASKED
6 ABOUT AND I HAVEN'T MADE A DECISION THAT I PUT IN. THERE
7 WERE SOME THAT YOU BOTH ASKED FOR THAT I DIDN'T PUT IN.
8 SO YOU HAVE THOSE NOW TO LOOK THROUGH. WHAT I SUGGEST
9 WE DO, IF WE'RE GOING TO GET DONE WITH THE WITNESSES
10 PROBABLY BEFORE NOON OR SO, THEN SOMETIME IN THE EARLY
11 AFTERNOON OR AFTER A LUNCH BREAK WE COME BACK AND DO JURY
12 INSTRUCTIONS.
13 WHAT I WOULD ALSO SUGGEST TO YOU, ONE TIME WHEN WE WERE
14 LOOKING FOR EXHIBITS DURING THE TRIAL, NOT ALL THE EXHIBITS
15 THAT WERE INTRODUCED INTO EVIDENCE WERE HERE ON THIS BENCH.
16 I'VE GOT A LOT OF DEFENSE EXHIBITS. I HAVE BASICALLY A FEW
17 STATE EXHIBITS, LIKE THE DEATH CERTIFICATES, AMENDED DEATH
18 CERTIFICATES. THERE AREN'T A LOT OF -- I KNOW THE EXHIBIT
19 BINDERS ARE OVER HERE. BUT THERE WAS SOME OTHER EXHIBITS
20 THAT I HAVEN'T SEEN.
21 MR. WILSON: I THINK I HAVE THE DRUG LOG, WAS ONE
22 WE WERE LOOKING FOR. I KNOW I HAVE THE PHOTOGRAPHS. I WAS
23 GOING TO SUBMIT AN ALTERNATIVE INSTRUCTION ON THE ONE ON
24 LYDIA SMITH THAT WOULD INCORPORATE ALL OF THE PHOTOGRAPHS.
25 THE COURT: IF YOU WANT TO DO THAT AND HAVE IT FOR
4143
1 TOMORROW, THAT'S FINE. IF ANYBODY WANTS TO SAY THERE'S A
2 BETTER WAY TO DO THIS -- THIS IS A VERY DIFFICULT CASE IN
3 TERMS OF TRYING TO MAKE EVERYTHING CLEAR TO THE JURY. THIS
4 IS OUR BEST ATTEMPT. IF YOU CAN LOOK AT THAT OBVIOUSLY WE
5 CAN ARGUE AND DISCUSS THAT TOMORROW.
6 ANYTHING ELSE TO DISCUSS THIS AFTERNOON?
7 MR. STIRBA: NO, YOUR HONOR.
8 MR. WILSON: NO.
9 THE COURT: IF YOU'LL BE BACK HERE AT EIGHT, WE'LL
10 GO THROUGH THE REST OF THE PROFFERS AND THIS EXHIBIT. OKAY.
11 WE'LL SEE YOU AT EIGHT O'CLOCK TOMORROW MORNING.
12 MR. MAY: YOU WERE GOING TO TELL US THE NAME OF
13 THAT CASE?
14 THE COURT: YES. IF YOU'LL HOLD ON A MINUTE.
15 (PAUSE IN THE PROCEEDINGS.)
16 THE COURT: ON THAT CASE, IT WAS STATE VERSUS
17 LYMAN. THEY ACTUALLY GAVE ME A COUPLE OF COPIES, SO IF YOU
18 WANT TO TAKE ONE. THE ONE I'M PARTICULARLY LOOKING AT IS ON
19 PAGE 281 TO THE TOP OF 282. THAT JUST TALKS ABOUT THE
20 ALTERNATIVE -- ALTERNATE REASONABLE HYPOTHESIS AND THEN
21 DISCUSSES UTAH CASES AND SOME TENTH CIRCUIT CASES. THAT'S
22 WHAT I WAS REFERRING TO.
23 MR. STIRBA: VERY WELL, YOUR HONOR. THANK YOU.
24 (EVENING RECESS AT 4:25 P.M.)
25
4144
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3
*****
4 ______________________________
)
5 STATE OF UTAH, )
)
6 PLAINTIFF, )
)
7 ) REPORTER'S TRANSCRIPT
VS. )
8 ) CASE NO. 991700983
ROBERT ALLEN WEITZEL, )
9 )
DEFENDANT. )
10 ______________________________)
11 *****
12 TRIAL VOLUME 20 OF 21
13 JULY 7, 2000
14 HONORABLE THOMAS L. KAY
15
*****
16
17 APPEARANCES:
18 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
19 MS. CHARLENE BARLOW
20
FOR THE DEFENDANT: MR. PETER STIRBA
21 MR. JOHN WARREN MAY
22
23
24
25
4145
1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 MR. STIRBA: I'VE BEEN PROVIDED, AS THE COURT HAS,
3 THE VARIOUS PROFFERS AND WE ADDRESSED BONNIE HARDEY
4 YESTERDAY. I HAVE NOTHING FURTHER TO ADD WITH RESPECT TO
5 THAT, YOUR HONOR.
6 WITH RESPECT TO TRACY SCHOLL, THE PROFFER I HAVE IN
7 FRONT OF ME SAYS THAT BASICALLY SHE'S GOING TO STATE THAT ON
8 THE 30TH, WHEN DR. WEITZEL RETURNED HER PAGE, SHE TOLD HIM
9 ABOUT THE RESPIRATION RATE, BLOOD PRESSURE AND VITAL SIGNS
10 WHICH HAD CAUSED HER CONCERN AT ONE O'CLOCK. I LOOKED AT
11 HER TESTIMONY AND REVIEWED MY NOTES WITH RESPECT TO WHAT SHE
12 ALREADY HAS TESTIFIED TO AND, QUITE FRANKLY, YOUR HONOR,
13 SHE'S ALREADY TESTIFIED AT LEAST THREE DIFFERENT TIMES ON
14 HER INITIAL EXAMINATION OF THAT VERY FACT. FOR EXAMPLE, SHE
15 SAID DR. WEITZEL RETURNED THE PAGE AND I INFORMED HIM OF THE
16 PATIENT'S CONDITION AND HE ORDERED MORPHINE 10 MILLIGRAMS
17 I.M. AND I GAVE THAT. THEN SHE WAS ASKED AGAIN, WHY DID YOU
18 CALL DR. WEITZEL AT 3:15. WELL, AT THAT TIME HE HAD NOT
19 RETURNED THE PAGE FROM ONE O'CLOCK SO I HAD BEEN UNABLE TO
20 INFORM HIM OF THE PATIENT'S VITAL SIGNS EARLIER IN THE
21 SHIFT. AND THEN THERE WAS THE ADDITIONAL PROBLEM THAT SHE
22 AWAKENED WITH THE SCREAMING AND MOANING AND THROWING HER
23 BODY AND TO ME SHE APPEARED TO BE IN A GREAT DEAL OF PAIN.
24 THEN SHE GOES ON TO SAY, I INFORMED HIM OF THE PATIENT'S
25 CONDITION. LET HIM KNOW WHAT WAS GOING ON. SO YOU TOLD HIM
4146
1 ABOUT THE LOW RESPIRATIONS, ABOUT HER VITAL SIGNS, WHAT THEY
2 HAD BEEN AND THAT SHE APPEARED TO BE IN A GREAT DEAL OF
3 PAIN. I SEE NO PURPOSE IN HAVING HER COME IN HERE AGAIN AND
4 ESSENTIALLY IT'S CUMULATIVE. SO I DON'T THINK IT'S A
5 LEGITIMATE REBUTTAL.
6 CONCERNING DR. CROOKSTON, I HAVE REVIEWED THE
7 PROFFER AND IT SEEMS TO ME THAT I HAVE SOME OBJECTIONS TO
8 WHAT IS PROPOSED. FIRST OF ALL, IT SAYS HE'S GOING TO REBUT
9 AS TO THE APPROPRIATE USE OF SERZONE AND TRAZODONE TOGETHER.
10 YOUR HONOR, I THINK WE'VE HAD ALMOST EVERY WITNESS,
11 CERTAINLY THIS FEHLAUER AND DR. CROOKSTON HAVE ALREADY
12 TESTIFIED TO THIS VERY FACT. AND THEY TESTIFIED ABOUT WHY
13 THEY WOULDN'T GIVE SERZONE AND TRAZODONE TOGETHER BECAUSE
14 ESSENTIALLY THEY ARE THE SAME DRUG. I THINK IT'S
15 CUMULATIVE. IT'S ALREADY BEEN TESTIFIED TO BY BOTH OF THE
16 EXPERTS AT LENGTH IN THEIR INITIAL TESTIMONY.
17 ALSO, HE PREVIOUSLY TESTIFIED, I BELIEVE, ABOUT THE
18 RISPERIDAL IN PLACE OF HALDOL. THERE'S ALREADY BEEN
19 TESTIMONY BY BOTH FEHLAUER AND CROOKSTON WITH RESPECT TO
20 THAT. SO IT'S CUMULATIVE.
21 AS FAR AS DR. WEITZEL AS TO THE APPROPRIATENESS OF
22 INCREASING THE MEDICATIONS IN RESPONSE TO PRESSURE FROM THE
23 FAMILY, THAT, IT SEEMS TO ME, IS NOT REALLY REBUTTAL.
24 THAT'S ARGUMENT WHAT WAS TESTIFIED TO, WHAT WAS TESTIFIED
25 TO. AND IT SEEMS TO ME IT'S ARGUMENT AS TO WHETHER OR NOT
4147
1 WHAT ACTUALLY WAS TESTIFIED TO BY DR. WEITZEL WAS
2 APPROPRIATE OR WASN'T APPROPRIATE UNDER THE CIRCUMSTANCES.
3 AND, QUITE FRANKLY, I THINK HE WAS TELLING WHAT FACTUALLY
4 OCCURRED. I THINK IT RENDERS ITSELF FOR EXPERT COMMENTARY
5 BY DR. CROOKSTON.
6 AND AS FAR AS THE CHEYNE-STOKING AND ERRATIC
7 RESPIRATIONS, WE JUST HAD DR. HARE TALKING ABOUT
8 CHEYNE-STOKING. WE'VE HAD EVERY WITNESS TALKING ABOUT
9 CHEYNE-STOKING.
10 AND IT'S INTERESTING BECAUSE CROOKSTON IS A CHILD
11 PSYCHIATRIST. HE'S NEVER BEEN OFFERED AS A PAIN GUY. HE'S
12 NEVER BEEN OFFERED AS A MORPHINE GUY. HE'S NEVER BEEN
13 OFFERED AS ANYTHING BUT PRESUMABLY A PSYCHIATRIST. HIS
14 QUALIFICATIONS ARE AS A CHILD PSYCHIATRIST. SO WHY NOW ARE
15 WE HAVING HIM COME IN AND TESTIFY ESSENTIALLY ABOUT
16 MORPHINE? THERE IS NO QUALIFICATION OR FOUNDATION THAT'S
17 BEEN LAID IN THAT RESPECT OR TALKING ABOUT CHEYNE-STOKING
18 WHEN IT'S ALREADY BEEN ADDRESSED. THE MORPHINE HAS ALREADY
19 BEEN ADDRESSED.
20 AND IN TERMS OF THE CLINICAL EXAMINATION AND WHAT HIS
21 TRAINING IS, WHAT DR. WEITZEL TESTIFIED TO IS DR. WEITZEL'S
22 TESTIMONY, BUT HIS TRAINING IS IRRELEVANT. AND AS I
23 UNDERSTOOD THE PROFFER, THAT'S WHAT HE'S GOING TO TESTIFY
24 ABOUT AND HE CERTAINLY CAN'T COMMENT ABOUT WHAT DR.
25 WEITZEL'S TRAINING WAS. HE CERTAINLY CAN'T COMMENT ABOUT
4148
1 ANYTHING BUT HIS OWN TRAINING AND HIS TRAINING IS
2 IRRELEVANT. SO I WOULD SUGGEST THAT THAT OUGHT NOT TO BE AS
3 PART OF ANY REBUTTAL CASE.
4 WITH RESPECT TO THE OTHER MATTERS CONTAINED IN
5 THAT --
6 THE COURT: WHAT ABOUT THIS SECOND POINT THAT MR.
7 WILSON SAID ABOUT THE PEAK EFFECT DELAY?
8 MR. STIRBA: ONCE AGAIN, I THINK THIS IS
9 INAPPROPRIATE WITH RESPECT TO A PSYCHIATRIST WHO'S NEVER
10 TESTIFIED BEFORE HERE WITH RESPECT TO MORPHINE, WITH RESPECT
11 TO THE USE OF MORPHINE, WITH RESPECT TO THE EFFICACY OF
12 MORPHINE. AND ESSENTIALLY IT'S BEYOND THE SCOPE OF ANYTHING
13 HE'S REPRESENTED TO THE COURT PREVIOUSLY AND IT SEEMS TO ME
14 THAT IT SHOULD HAVE COME THROUGH DR. HARE IF IT WAS GOING TO
15 COME. HE'S ALREADY GOING TO TESTIFY A LITTLE BIT IN
16 RESPONSE TO DR. SUPERNAW IN POINT ONE, THE HALF LIFE OF
17 DEPAKENE, AND I THINK THAT OTHER THAN THAT HE REALLY DOESN'T
18 HAVE THE REQUISITE FOUNDATION. AND YOU JUST CAN'T KIND OF
19 ALL OF A SUDDEN MIX ALL THIS TOGETHER OR WE'RE GOING TO HAVE
20 ALL OF THESE FOUNDATIONAL ARGUMENTS AND THESE QUALIFICATION
21 ARGUMENTS.
22 AND IT SEEMS TO ME THAT THAT'S THE PROBLEM ABOUT HAVING
23 THIS PSYCHIATRIST WHO HERETOFORE WAS BEFORE THE JURY
24 PRESUMABLY ON PSYCHIATRIC ISSUES NOW GETTING ESSENTIALLY
25 INTO PAIN MANAGEMENT, MORPHINE ISSUES AND OTHER THINGS FOR
4149
1 WHICH I DON'T THINK HE HAS ANY QUALIFICATIONS AND OUGHT NOT
2 TO TESTIFY IN REBUTTAL UNDER THESE CIRCUMSTANCES. IF THAT
3 WAS GOING TO COME OUT IT SEEMS TO ME IT SHOULD HAVE COME OUT
4 THROUGH DR. HARE, WHO APPARENTLY IS THE MAN WITH THE
5 MORPHINE EXPERIENCE AND PAIN EXPERTISE. SO THAT'S WITH
6 RESPECT TO CROOKSTON.
7 CONCERNING DR. FEHLAUER, THERE ARE A NUMBER OF
8 THINGS THAT DR. FEHLAUER IDENTIFIES THAT HE'S GOING TO
9 TESTIFY TO CONCERNING THE PROFFER. I'LL JUST GO DOWN THEM
10 ONE AT A TIME. THE FIRST ONE SAYS ANDERSON, WHAT IS THE
11 COURSE OF UNTREATED PNEUMONIA. THAT'S A FACTUAL ISSUE.
12 IT'S NOT REALLY -- I DON'T THINK ANYBODY HAS TESTIFIED IN
13 THIS TRIAL AS TO WHAT IS OR IS NOT THE COURSE OF UNTREATED
14 PNEUMONIA. WHAT HAS BEEN TESTIFIED TO IS A FACT AND THAT IS
15 DR. ROTHFEDER SAID, IN REVIEWING THE RECORDS AND BASED UPON
16 THE X-RAY THAT WAS DONE ON MISS ANDERSON I BELIEVE IN
17 NOVEMBER, THERE WAS NO OTHER INDICATION THAT THAT HAD IN
18 FACT BEEN TREATED. SO HE CALLED IT UNTREATED PNEUMONIA.
19 THAT'S A FACTUAL QUESTION. HE DIDN'T TESTIFY AS TO
20 WHETHER THERE WAS RIGHT OR WRONG. HE DIDN'T TESTIFY AS TO
21 WHAT ONE SHOULD OR SHOULD NOT DO. IT'S JUST A FACTUAL
22 ISSUE. IT'S NOT REALLY AN EXPERT OPINION MATTER.
23 WITH RESPECT TO THE F.A.S SYSTEM, AND THAT IS THIS
24 LITTLE CHART OVER HERE THAT WE GOT INTO. I THINK THAT THERE
25 HAS BEEN TESTIMONY BY DR. HERBST, BUT REALLY SHE DIDN'T
4150
1 TESTIFY, AS I UNDERSTAND THAT PROFFER, AS TO PRECISELY THIS
2 SCALE AND THE F.A.S. SCALE AND TERMINALITY. WHAT SHE WAS
3 TALKING ABOUT WAS IF YOU TAKE THAT IN CONJUNCTION WITH OTHER
4 CO-MORBID CONDITIONS, AND THERE WAS ANOTHER SCALE THAT SHE
5 TALKED ABOUT, THEN THERE ARE CERTAIN GUIDELINES PROMULGATED
6 BY THE NATIONAL HOSPICE ORGANIZATION AND ACCEPTED BY
7 MEDICARE FOR PURPOSES OF DETERMINING A TERMINAL CONDITION.
8 SO TO HAVE HIM JUST REVIEW ESSENTIALLY A PORTION, A LITTLE
9 SLICE OF REALLY WHAT SHE TESTIFIED TO, I WOULD SUGGEST IS
10 MISLEADING AND NOT REALLY REBUTTAL.
11 THE COURT: WELL, DIDN'T SHE TESTIFY THAT HER VIEW
12 WAS THESE PEOPLE ALL CAME IN AND THEY WERE WITHIN SIX MONTHS
13 OF DEATH UPON ADMISSION? AND THAT AS I UNDERSTAND WHAT THEY
14 ARE TRYING TO SAY IS, WELL, REALLY THEY WERE NOT WITHIN SIX
15 MONTHS OF DEATH BECAUSE OF BOTH THIS F.A.S. SYSTEM AND HIS
16 OPINION.
17 MR. STIRBA: I THINK WITH THIS ONE IT'S A CLOSER
18 CALL, BUT I AM SAYING THAT WHAT SHE DIDN'T TESTIFY TO IS
19 JUST THE F.A.S. SYSTEM.
20 THE COURT: WELL, THEY SHOWED THAT AND SHE SAYS
21 THAT'S WHAT ONE STUDY --
22 MR. STIRBA: I THINK TO SOME EXTENT IT'S NOT TRULY
23 REBUTTAL BECAUSE IT DOESN'T ENCOMPASS THE ENTIRETY AT THIS
24 TIME OF REALLY WHAT HE WAS SAYING FOR PURPOSES OF HER
25 OPINION. SO THAT'S MY POSITION THERE. IF A PERSON HAS
4151
1 PNEUMONIA, DOES MORPHINE HELP BREATHING? I GUESS HE CAN
2 TESTIFY TO THAT. I GUESS THAT HAS BEEN AN ISSUE AND I'M NOT
3 SURE IT'S BEEN DEALT WITH BEFORE.
4 THE HERBST CHART, SIGNS OF DYING, I THINK THAT HAS NOT
5 BEEN ADDRESSED BEFORE. LIVER AND KIDNEY FAILURE IN THESE
6 PATIENTS, I GUESS TO THE EXTENT THAT THERE ARE SOME FACTS IN
7 THE RECORD, I GUESS HE CAN POINT THEM OUT. BUT I THINK
8 THAT'S BEEN THE ONLY TESTIMONY, BASED UPON SUPERNAW, THAT
9 BASICALLY HE DIDN'T SEE ANY FINDINGS OR LAB TESTS IN THE
10 RECORD THAT WOULD SUBSTANTIATE THAT.
11 THE APPROPRIATENESS OF MONITORING ONLY ONCE PER SHIFT,
12 I DON'T KNOW WHAT PRECISELY THAT ADDRESSES, BUT IT SEEMS TO
13 ME WE HAVE A BUNCH OF TESTIMONY.
14 MS. BARLOW: YOUR HONOR, WE'RE WITHDRAWING -- AFTER
15 TALKING FURTHER, WE'RE NOT GOING TO GET INTO THAT.
16 THE COURT: I THINK DR. HARE TESTIFIED ABOUT THAT.
17 MR. STIRBA: OKAY. DOES TWITCHING ALWAYS INDICATE
18 PAIN? I THINK REALLY THAT'S AN ARGUMENT. I GUESS HE CAN
19 SAY IT, BUT IF HE GOES BEYOND THAT HE'S REALLY NOT RENDERING
20 AN EXPERT OPINION. WE HAVE SOME OF THE VERY PEOPLE WHO
21 CARED FOR THESE INDIVIDUALS IDENTIFY THE SIGNS AND SYMPTOMS
22 WHICH WERE INDICATIVE OF PAIN. I DON'T THINK AN EXPERT CAN
23 COME IN HERE AND SAY, WELL, MY EXPERT OPINION IS THAT THEY
24 ASSESSED IT WRONG. I MEAN, IT SEEMS TO ME IT'S NOT
25 REBUTTAL. HE'S NEVER REBUTTING ANYTHING. HE'S MORE ARGUING
4152
1 THE EVIDENCE AND I THINK THAT'S INAPPROPRIATE REBUTTAL.
2 25 PERCENT WEIGHT LOSS CAUSED BY SOMETHING OTHER THAN
3 DYING. I GUESS ARGUABLY, IF HE WANTS TO COMMENT ON WEIGHT
4 LOSS, I GUESS HE CAN.
5 THE MYCOSIS FUNGOIDES END STAGE SYMPTOMS AND ITS
6 EFFECTS ON THE IMMUNE SYSTEM. NOBODY TESTIFIED TO THAT.
7 THE ONLY TESTIMONY HAS BEEN -- AND IT'S FACTUAL IN THE
8 RECORD -- IS DR. DIENHART IN HIS CONSULT SAID THAT THIS
9 GENTLEMAN HAD -- IT'S A FORM OF LYMPHOMA AND HE REFERRED TO
10 IT AS END STAGE. AND THAT HAS BEEN THE TESTIMONY. THERE'S
11 NO OTHER FACTS THAT HAVE BEEN DEVELOPED. AND BASED UPON
12 THAT I THINK DR. ROTHFEDER MADE A PASSING REFERENCE TO HIS
13 DETERMINATION THAT END STAGE MEANS WHAT IT SAYS. AND THAT
14 IS YOU HAVE A CANCER WHICH IS NOW AT THE POINT WHICH IS END
15 STAGE, WHICH I THINK EVERYBODY UNDERSTANDS WHAT THAT MEANS.
16 THAT'S ALL HE SAID. SO I DON'T THINK WE HAVE TO GET INTO
17 THE SYMPTOMS AND HOW IT EFFECTS THE IMMUNE SYSTEM. FRANKLY
18 NOBODY TESTIFIED TO THAT.
19 THIS IS NOT NECESSARY FOR REBUTTAL. I DON'T THINK
20 ANYBODY HAS TESTIFIED ABOUT HEALING, NOT HEALING. WE HAD A
21 GYNECOLOGIST, FOR CRYING OUT LOUD, WHO TESTIFIED ABOUT IT,
22 TESTIFIED WHAT HE RECOMMENDED, TESTIFIED TO THE
23 CIRCUMSTANCES. THERE IS REALLY NOTHING TO REBUT. THIS IS
24 JUST SORT OF ADDING A SPIN TO CERTAIN FACTS WHICH MAY NOT BE
25 HELPFUL AT THIS POINT TO THE STATE. BUT NOBODY IS REALLY --
4153
1 IT'S A FACTUAL ISSUE AND THE VERY PERSON WHO TREATED HAS
2 ALREADY TESTIFIED ABOUT IT.
3 THE JAPANESE STUDY. I THINK THIS IS ARGUMENT. I
4 KNOW THERE WAS A REFERENCE MADE BY DR. HILL TO THIS STUDY
5 AND IT WAS ESSENTIALLY TO ASSIST IN THE DEVELOPMENT OF HIS
6 OPINION. BUT FOR PURPOSES OF IF WE'RE GOING TO HAVE AN
7 ARGUMENT WHETHER THIS STUDY EITHER EXISTS OR WHAT IT MEANS
8 OR WHAT IT DOESN'T MEAN, IT SEEMS TO ME, IS PURELY ARGUMENT
9 AND NOT REBUTTAL.
10 DO ALL PEOPLE DIE IN PAIN? I DON'T THINK THIS ONE
11 LENDS ITSELF TO ANY EXPERT OPINION, CERTAINLY THE KIND OF
12 EXPERTISE THAT THIS DOCTOR HAS, AND I'M NOT SURE ANYBODY
13 EVER SAID THAT. THERE WAS SPECIFIC REFERENCE TO THESE
14 PATIENTS ABOUT CIRCUMSTANCES INVOLVING THEIR SUFFERING, THE
15 DEGREE OF ANGUISH THEY MAY EXPERIENCE IN LIGHT OF THEIR
16 CONDITIONS. I GUESS IF HE WANTS TO OPINE AND GO OUT ON A
17 LIMB, HE CAN. BUT IN TERMS OF JUST TALKING ABOUT PEOPLE
18 DYING IN PAIN, THAT'S NOT WHAT THIS CASE IS ALL ABOUT AND
19 NOBODY SAID THAT.
20 CRANE AT DEATH'S DOOR. I DON'T UNDERSTAND WHAT
21 THAT MEANS. I'M SORRY I CAN'T ADDRESS IT. MAYBE I CAN GET
22 ADDITIONAL INFORMATION ON THAT.
23 HISTORY OF MEDICAL CONDITION IS NOT JUST ACUTE
24 CONDITION. I DON'T THINK THAT'S REBUTTAL. I MEAN,
25 EVERYBODY TESTIFIED ABOUT THE CONDITIONS AND WHETHER THEY
4154
1 ARE ACUTE OR THEY ARE NOT ACUTE. IT'S CUMULATIVE. NOBODY
2 REALLY MADE THAT AN ISSUE THAT REQUIRES ANY REBUTTAL WITNESS
3 ON THAT.
4 CRANE. HOW DO YOU DIAGNOSE SEPSIS? WAS A BLOOD
5 CULTURE TAKEN? WELL, IT'S A FACTUAL ISSUE WHETHER OR NOT A
6 BLOOD CULTURE WAS IN FACT TAKEN. IT'S NOT REALLY REBUTTAL
7 IN THE SENSE THAT HE'S ALREADY RENDERED HIS EXPERT OPINION
8 AS TO THE CAUSE OF DEATH OF MARY CRANE. WE'RE ENTITLED
9 CERTAINLY TO HAVE SOMEBODY ELSE COME IN AND RENDER HIS OR
10 HER EXPERT OPINION AS TO THE CAUSE OF DEATH. BUT JUST TO
11 HAVE THE EXPERT COME BACK AND SAY, WELL, NO, THIS IS ANOTHER
12 WAY I'M SAYING WHAT THE CAUSE OF DEATH IS, IT SEEMS TO ME,
13 IS NOT APPROPRIATE REBUTTAL.
14 PLUS THE SCOPE OF THAT IS BEYOND, I THINK, ANYTHING
15 THAT ANYBODY HAS SAID OTHER THAN -- AND REMEMBER, THIS IS
16 NOT JUST THE DEFENDANT. THIS IS NOT JUST DR. ROTHFEDER.
17 THIS IS DR. DIENHART. I MEAN, DR. DIENHART WAS THERE, WAS
18 THEIR WITNESS AS A MATTER OF FACT, WHO TREATED THIS WOMAN.
19 AND HE SAID ON THE STAND, CONFIRMED, THAT HE THOUGHT IT WAS
20 SEPSIS. AND NOT ONLY DID HE CONFIRM THAT, HE TESTIFIED THAT
21 HE DIDN'T THINK HE COULD SAVE HER NO MATTER WHAT HE DID. SO
22 I'M NOT SO SURE THAT IS REBUTTING, BUT IT SEEMS TO ME IT
23 ONLY LENDS FURTHER CONFUSION TO THE FACTUAL RECORD, IS NOT
24 APPROPRIATE REBUTTAL.
25 PEOPLE DIE OF COMPLICATIONS OF DIABETES. THIS TO ME --
4155
1 I DON'T KNOW WHETHER ANYBODY HAS TESTIFIED THAT WAY. I
2 DON'T KNOW WHAT IT'S REBUTTING. IT SEEMS TO ME ONCE AGAIN
3 WE'RE JUST SORT OF INJECTING ADDITIONAL EXPERT TESTIMONY
4 COMMENTING ON THE EVIDENCE WHICH SHOULD HAVE GONE ON IN THE
5 CASE IN CHIEF.
6 ALLDREDGE. CAN YOU PREDICT IMPENDING STROKES?
7 WHAT IS CLINICAL CORRELATION? WE ALREADY HAD SOME TESTIMONY
8 ABOUT THAT, I BELIEVE, IN TERMS OF CLINICAL CORRELATION.
9 BUT ESSENTIALLY THIS IS ANOTHER ARGUMENT. NOBODY HAS SAID
10 THAT YOU COULD SOMEHOW PREDICT THE STROKE. HE'S GOING TO
11 SAY FACTUALLY I THINK THERE WAS A STROKE. HE'S GOING TO
12 FACTUALLY SAY THERE WASN'T A STROKE. HE'S GOING TO
13 FACTUALLY SAY, IN MY OPINION THIS IS THE REASON WHY THERE
14 WASN'T A STROKE. BUT IT SEEMS TO ME THAT'S BEEN GONE OVER
15 IN SPADES AND THERE IS NO POINT IN DOING IT AGAIN. BUT TO
16 GET OFF INTO THIS AREA WHEN NOBODY SAID THAT, THERE'S NOT
17 ONE PERSON SAID THAT IN THIS TRIAL.
18 AND THEN FINALLY ON ANDERSON. IS THERE PAIN FROM A
19 KYPHOSIS, WHICH IS THE CURVATURE OF THE SPINE? WELL, YOU
20 KNOW, ONCE AGAIN THIS IS A FACTUAL QUESTION AND AN EXPERT
21 REALLY IS NOT TRAINED IN SPECULATION. THIS IS SORT OF LIKE
22 HAVING AN ACCOUNTANT COME IN, LOOK AT A BUNCH OF RECORDS AND
23 TELL EVERYBODY WHETHER THEY ARE TRUTHFUL OR NOT. THERE'S NO
24 SPECIAL EXPERTISE. THE FACTS ARE WHAT THE FACTS ARE. THE
25 TESTIMONY HAS BEEN FACTUAL ABOUT THE CIRCUMSTANCES OF HER
4156
1 ADMISSION, WHAT WAS ASSESSED, WHAT WASN'T ASSESSED. FOR HIM
2 TO JUST SPECULATE NOW ABOUT WHETHER IT'S, "PAIN FROM
3 KYPHOSIS," DOESN'T TRULY RELATE TO THIS PARTICULAR
4 CIRCUMSTANCE AND THIS PARTICULAR CONDITION. SO I DON'T
5 THINK THAT'S REBUTTAL. SO THAT SORT OF COVERS MY POINT OF
6 VIEW WITH RESPECT TO FEHLAUER.
7 NOW FINALLY, YOUR HONOR, THERE WAS THE CIRCUMSTANCE
8 OF THE POHLMANS. AND ESSENTIALLY I OFFERED THE COURT THE
9 TURNER CASE ABOUT AN UNDISCLOSED WITNESS. AND IT DOES SAY
10 THAT WHEN THE OFFERING PARTY DENIES THAT THE UNDISCLOSED
11 WITNESS IS NECESSARY TO REBUT THE ADVERSE PARTY'S EVIDENCE,
12 THE ISSUE HINGES ON WHETHER THE EVIDENCE SOUGHT TO BE
13 REBUTTED COULD REASONABLY HAVE BEEN ANTICIPATED PRIOR TO
14 TRIAL. AND I MADE THAT ARGUMENT YESTERDAY. IT'S THE SAME
15 ARGUMENT I MAKE NOW AND I THINK IT CLEARLY APPLIES TO MR.
16 POHLMAN.
17 AS FAR AS MRS. POHLMAN IS CONCERNED, I HAVE REVIEWED
18 HER TESTIMONY AND I WILL TELL YOU, JUDGE, THAT SHE'S ALREADY
19 TESTIFIED THAT SHE CAME TO THE HOSPITAL. SHE RECALLS AN
20 EVENT THE DAY OF HER MOTHER'S DEATH IN WHICH SHE TALKED TO
21 DR. WEITZEL. AND SHE SAID THAT WAS THE ONLY TIME THAT SHE
22 TALKED TO DR. WEITZEL. SHE ALREADY TESTIFIED ABOUT THE
23 CIRCUMSTANCES OF MEETING HIM, WHAT THE CONVERSATION WAS.
24 I'D SUGGEST TO HAVE HER COME IN HERE AND SORT OF NOW
25 RETESTIFY TO THOSE FACTS IS JUST CUMULATIVE. THE JURY'S
4157
1 ALREADY HEARD IT. AND I DON'T THINK THAT THE STATE NOW IS
2 ENTITLED TO HAVE THEM HEAR IT AGAIN, REPACKAGED KIND OF IN A
3 DIFFERENT FRAMEWORK. SHE'S ALREADY TESTIFIED AS TO THE
4 FACTS AND NOW WE'RE AT THE POINT WHERE ARGUMENT WILL BE MADE
5 WITH RESPECT TO THE SIGNIFICANCE OF THOSE FACTS. SO I THINK
6 THAT COVERS OUR POSITION WITH RESPECT TO THE PROFFERED
7 MATERIAL.
8 THE COURT: OKAY. MR. WILSON.
9 MR. WILSON: FIRST OF ALL, JUST TO RESPOND RELATIVE
10 TO DR. CROOKSTON, YOUR HONOR, REBUTTAL IS DESIGNED TO ATTACK
11 THE CREDIBILITY OF A WITNESS OR THE ACCURACY OF THEIR
12 PROFFERED EVIDENCE, PARTICULARLY IN TERMS OF EXPERTS. YOU
13 NEED TO BE ABLE TO HAVE THE OPPORTUNITY TO AT LEAST DISPUTE
14 SOME OF THEIR FINDINGS WHICH ARE INCONSISTENT WITH WHAT YOUR
15 EXPERTS' OPINIONS ARE.
16 IN THIS PARTICULAR INSTANCE, FIRST OF ALL, I WANT TO
17 CLEAR UP AS TO DR. CROOKSTON'S CREDENTIALS. AS COUNSEL MAY
18 RECALL, HE WAS BOARD CERTIFIED IN PSYCHIATRY. HE'S BOARD
19 CERTIFIED AS A CHILD PSYCHIATRIST. AND HE'S ALSO BOARD
20 CERTIFIED IN ADDICTIVE MEDICINES AND HE'S A BOARD CERTIFIED
21 ANESTHESIOLOGIST AND HAD TRAINING AS AN ANESTHESIOLOGIST AND
22 CONTINUOUS TO CONSULT IN PAIN MANAGEMENT BECAUSE OF HIS
23 ANESTHESIOLOGY BACKGROUND.
24 HE TESTIFIED RELATIVE TO MORPHINE AND THE EFFECTS OF
25 MORPHINE IN HIS ORIGINAL TESTIMONY. WE'RE OFFERING THIS
4158
1 TESTIMONY NOW TO REBUT CERTAIN THINGS THAT HAVE COME INTO
2 EVIDENCE BOTH FROM THE DEFENSE WITNESSES, THEIR EXPERT
3 WITNESSES AND FROM THE DEFENDANT HIMSELF.
4 AS TO THE COMBINATION OF DRUGS, THE EVIDENCE THAT
5 WE WANTED TO TALK ABOUT THERE RELATED NOT NECESSARILY TO
6 COMBINING SERZONE AND TRAZODONE, BUT TO THE FACT THAT THE
7 DEFENDANT TESTIFIED THAT HE USED ONE FOR A CERTAIN TIME OF
8 DAY AND ONE FOR ANOTHER TIME OF DAY, SO AS TO THE PROPRIETY
9 OF THAT PARTICULAR TYPE OF MEDICATION SCHEDULING.
10 AS TO RISPERDAL IN PLACE OF HALDOL, I DON'T THINK THAT
11 THERE WAS TESTIMONY AS TO THE CONVERSION RATE, AS I RECALL
12 MY REVIEW OF THE RECORDS. AND THAT'S BASICALLY WHAT HE'S
13 TALKING ABOUT THERE, WHEN THE DEFENDANT TALKED ABOUT
14 RISPERDAL IN PLACE OF HALDOL AND AS TO WHAT THE APPROPRIATE
15 DOSAGE AMOUNTS WERE.
16 AS TO THE APPROPRIATENESS OF INCREASING THE MEDICATIONS
17 IN RESPONSE TO THE PRESSURE OF THE FAMILY, I THINK THE
18 TESTIMONY OF THE DEFENDANT WAS TO THE EFFECT THAT ONE OF THE
19 REASONS THAT HE CHANGED THE REGIMEN, AS IT RELATED TO LYDIA
20 SMITH, WAS THAT HE'D HAD A NUMBER OF EXPRESSIONS FROM THE
21 FAMILY THAT IF THEY DIDN'T GET HER BEHAVIOR UNDER CONTROL
22 SHE WOULDN'T BE ALLOWED TO GO BACK INTO THE ROCKY MOUNTAIN
23 HEALTH CARE CENTER.
24 AS TO THE CHEYNE-STOKES RESPIRATIONS, I THINK IT'S
25 IMPORTANT TO AT LEAST ASSIST THE TRYER OF FACT TO UNDERSTAND
4159
1 THAT THERE'S --
2 THE COURT: DIDN'T DR. HARE SAY THAT VERY THING
3 YESTERDAY? I MEAN, HE SAID MORPHINE, YOU KNOW. I MEAN, HE
4 SAID THE CHEYNE-STOKES -- I ALLOWED YOU TO ASK HIM ABOUT IT
5 AND HE TESTIFIED ABOUT THAT. DON'T WE HAVE TO HAVE --
6 MR. WILSON: HE DID TESTIFY ABOUT THAT, YOUR HONOR.
7 IN RESPECT TO THE PEAK EFFECT OF MORPHINE, I DON'T THINK HE
8 TALKED ABOUT THAT PARTICULAR ASPECT. HE DID TALK ABOUT THE
9 FACT THAT YOU COULD SEE THE SIGNS OF MORPHINE TOXICITY IN
10 ELLEN ANDERSON SOME FIVE-AND-A-HALF HOURS LATER. AND THE
11 LAST ONE WAS -- IT MAY BE REDUNDANT WITH RESPECT TO
12 FEHLAUER'S TESTIMONY AS TO THE CLINICAL EXAMINATION. AND SO
13 WE MAY -- WE MAY JUST PICK OR CHOSE IN RESPECT TO THAT
14 PARTICULAR ISSUE.
15 THE COURT: OKAY.
16 MS. BARLOW: YOUR HONOR, AS TO BONNIE HARDEY, WE
17 MADE OUR ARGUMENTS YESTERDAY. AS TO TRACY SCHOLL, SHE
18 TESTIFIED THAT SHE TOLD THE DEFENDANT AT APPROXIMATELY THREE
19 IN THE MORNING ABOUT THE PATIENT'S CONDITION. BUT AS YOU
20 WILL NO DOUBT RECALL, AT THAT POINT THE PATIENT WAS MOANING
21 AND SCREAMING AND THE DEFENDANT TESTIFIED THAT, WELL, THAT'S
22 ALL SHE TOLD ME. SO I WOULD LIKE TO CALL HER BACK TO
23 TESTIFY THAT SHE SAID THAT SHE TOLD HIM NOT JUST ABOUT THE
24 MOANING AND THE SCREAMING.
25 THE COURT: WELL, THERE WAS A TRANSCRIPT READ WHERE
4160
1 IT SAYS I TOLD HIM ABOUT THE VITAL SIGNS. I TOLD HIM ABOUT
2 THE RESPIRATION. AND HE SAID EITHER SHE DIDN'T OR I DON'T
3 RECALL. AND SO NOW WE HAVE ONE PERSON SAYING ONE THING, ONE
4 PERSON SAYING ANOTHER THING. NOW SHE COMES BACK AND SAYS I
5 TOLD HIM ABOUT THE RESPIRATION.
6 MS. BARLOW: RIGHT. AS CONCERNING DR. FEHLAUER,
7 I'VE HAD A CHANCE TO TALK WITH HIM FURTHER AFTER PREPARING
8 THIS PROFFER. HE HAD A CHANCE THIS MORNING TO LOOK AT THE
9 X-RAYS OF 11-18-95. AND HE WILL TESTIFY THAT THE PNEUMONIA
10 IN THE X-RAYS ON NOVEMBER 18, 1995 WAS ON THE RIGHT SIDE AND
11 AT AUTOPSY THE PNEUMONIA WAS ON THE LEFT SIDE. THAT
12 WOULD -- THAT DIRECTLY COUNTERS DR. ROTHFEDER'S TESTIMONY.
13 HE SAID THAT THE PNEUMONIA WAS UNTREATED FROM NOVEMBER ON,
14 OR THAT THE PNEUMONIA BEING UNTREATED FROM NOVEMBER ON IS
15 WHAT KILLED HER. IT WAS A DIFFERENT PNEUMONIA. IT WAS IN A
16 DIFFERENT LUNG AND SO HE WOULD BE TESTIFYING AS TO THAT
17 RATHER THAN JUST A GENERAL COURSE OF UNTREATED PNEUMONIA.
18 AS FAR AS THE F.A.S. SCORING IS CONCERNED, DR. HERBST
19 GOT INTO THAT. SHE GAVE EACH ONE OF THESE PEOPLE --
20 THE COURT: I UNDERSTAND THAT.
21 MS. BARLOW: OKAY. AND HE WOULD ADDRESS THAT. HE
22 WOULD ALSO ADDRESS THE GUIDELINES FROM THE NATIONAL HOSPICE
23 ORGANIZATION.
24 AS FAR AS THE TWITCHING IS CONCERNED, HE CAN TESTIFY
25 THAT OTHER THINGS SUCH AS FOCAL MOTOR SEIZURES AND CHRONIC
4161
1 PROBLEMS CAN CAUSE TWITCHING. SO WE WOULD ASK THAT HE BE
2 ALLOWED TO TESTIFY TO THAT. THE TESTIMONY HAS BEEN, WELL,
3 THE TWITCHING INDICATES PAIN, BUT IT CERTAINLY CAN INDICATE
4 OTHER THINGS OTHER THAN PAIN.
5 THE MYCOSIS FUNGOIDES, I THINK IT WAS DR. ROTHFEDER WHO
6 TESTIFIED THAT MR. ALLDREDGE HAD TERMINAL CANCER BECAUSE OF
7 THE MYCOSIS FUNGOIDES. WE WOULD LIKE TO CLEAR THAT UP.
8 THIS IS A SKIN CANCER. IT HAD BEEN TREATED AND CURED. AND
9 SO WE WOULD LIKE HIM TO ADDRESS THAT IN DIRECT RESPONSE TO
10 DR. ROTHFEDER'S TESTIMONY.
11 AS FAR AS THE FISTULA IS CONCERNED, THE TESTIMONY
12 WAS -- AND I PROBABLY DIDN'T VERY ARTFULLY PREPARE THIS
13 PROFFER, DOING IT IN A HURRY -- BUT AS FAR AS THE FISTULA IS
14 CONCERNED, THE TESTIMONY, I BELIEVE FROM SEVERAL OF THE
15 EXPERTS FROM DEFENDANT, WAS THAT THE FISTULA CAUSED SEPSIS
16 AND THAT IS WHAT CAUSED HER DEATH. AND, YOU KNOW, THE
17 AUTOPSY SHOWS THAT THEY COULDN'T FIND THE FISTULA AT THAT
18 POINT. WE WOULD LIKE TO HAVE DR. FEHLAUER RESPOND TO THIS
19 IDEA THAT A FISTULA CAUSED SEPSIS WHICH CAUSED THE DEATH.
20 THE JAPANESE STUDY, I'M NOT SURE HOW WE'RE GOING TO
21 GET INTO THAT. I WROTE IT DOWN THERE, BUT IN TALKING
22 FURTHER TO DR. FEHLAUER I'M NOT SURE HOW MUCH WE EVEN WANT
23 TO GET INTO THAT. IT IS ABOUT PEOPLE WITH CANCER. AND
24 THAT'S PROBABLY ALL WE'D GET INTO IS THAT THAT'S WHAT THE
25 STUDY WAS ABOUT AND THAT'S NOT WHAT THESE PEOPLE WERE HAVING
4162
1 PROBLEMS WITH.
2 ALL PEOPLE DIE IN PAIN. AGAIN, THAT'S PROBABLY
3 INARTFULLY WRITTEN. DR. FEHLAUER CAN TESTIFY THAT
4 DEHYDRATION IS NOT PAINFUL WHICH IS IN DIRECT CONTRAVENTION
5 TO TESTIMONY FROM THE DEFENDANT'S SIDE. HE CAN TESTIFY AS
6 TO LIVER AND KIDNEY FAILURE, PEOPLE DYING OF THAT. THEY ARE
7 NOT IN PAIN BECAUSE THEIR BRAINS ARE ANESTHETIZED.
8 AS FAR AS MARY CRANE BEING AT DEATH'S DOOR, I BELIEVE
9 THAT WAS THE TESTIMONY, WHETHER THAT WAS FROM DR. HERBST,
10 THAT MARY CRANE WAS CLEARLY AT DEATH'S DOOR WHEN SHE CAME IN
11 TO THE UNIT. AND HE WILL TESTIFY THAT LOOKING AT THE
12 RECORDS THERE IS NO INDICATION -- THERE'S NO INDICATION OF
13 THAT AND WE CAN GET INTO THE SPECIFICS ABOUT THAT.
14 AS FAR AS THE HISTORY OF MEDICAL CONDITION, I THINK
15 THERE'S BEEN TESTIMONY THAT, YOU KNOW, AT THE TIME OF
16 ADMISSION IN THE HISTORY IT WAS WRITTEN SO CLEARLY THEY WERE
17 DYING. AND I JUST WANT TO CLARIFY THE FACT THAT IT'S
18 WRITTEN IN THERE AS A MEDICAL HISTORY DOESN'T MEAN THEY
19 ACUTELY HAVE THAT PROBLEM AT THE TIME.
20 THE COURT: WELL, ISN'T THE TESTIMONY FROM THE
21 DEFENSE THAT NONE OF THESE PEOPLE AS THEY ENTERED HAD AN
22 ACUTE CONDITION OR THAT THEY WERE TERMINAL?
23 MS. BARLOW: DR. HERBST SPECIFICALLY SAID EACH ONE
24 OF THESE PEOPLE WAS TERMINAL.
25 THE COURT: NO. EACH ONE OF THEM WAS GOING TO DIE
4163
1 WITHIN SIX MONTHS, BUT AS THEY ENTERED THE DAVIS HOSPITAL
2 NONE OF THEM HAD AN ACUTE CONDITION. IT'S BECAUSE OF --
3 BECAUSE OF THEIR AGREEMENT AND OTHER THINGS THAT WITHIN SIX
4 MONTHS THEY WERE GOING TO DIE.
5 MS. BARLOW: BUT THEN SHE WENT BEYOND THAT AND SAID
6 THEY WERE TERMINAL; AND I BELIEVE DR. ROTHFEDER ALSO.
7 THE COURT: WELL, HER DEFINITION OF TERMINAL WAS
8 WITHIN SIX MONTHS IS MY MEMORY.
9 MS. BARLOW: MY MEMORY MAY NOT BE MARVELOUS ON
10 THAT, BUT DR. ROTHFEDER TESTIFIED TO THE ACUTE CONDITIONS.
11 FOR EXAMPLE, MR. ALLDREDGE HAD "TERMINAL CANCER" THAT WAS
12 KILLING HIM WHEN HE CAME IN. SO THAT'S JUST THE VERY
13 GENERAL STATEMENT THERE.
14 AS FAR AS DIAGNOSING SEPSIS IN MARY CRANE, DR. FEHLAUER
15 WILL TESTIFY THAT SEPSIS IS A SYNDROME AND THAT THE THINGS
16 YOU LOOK FOR TO DIAGNOSE SEPSIS WERE NOT PRESENT IN MARY
17 CRANE. HE WILL TESTIFY ABOUT THE URINARY TRACT INFECTION
18 THAT SHE DID HAVE ON THE 1ST OF JANUARY, BUT IT WAS TREATED
19 AND BY THE TIME OF THE 4TH OF JANUARY THAT URINARY TRACT
20 INFECTION WAS GONE. BUT I BELIEVE THE TESTIMONY OF SOME OF
21 THE DEFENSE EXPERTS WAS, YOU KNOW, THERE WAS THIS URINARY
22 TRACT INFECTION THAT WENT TO THE FISTULA, THAT DIDN'T GO
23 INTO THE FISTULA, BUT THAT ADDED TO THE FISTULA-CAUSED
24 SEPSIS AND THAT'S WHAT SHE DIED OF. AND SO HE WOULD -- HE
25 WOULD TESTIFY IN REBUTTAL OF THAT.
4164
1 AS FAR AS COMPLAINTS OF DIABETES IS CONCERNED, YOU
2 KNOW, HE WOULD TESTIFY THAT, YOU KNOW, THAT MR. ALLDREDGE
3 DID HAVE THE BLOOD SUGARS THAT WAS HARD TO CONTROL, IT HAD
4 BEEN HARD TO CONTROL HIS DIABETES, BUT THAT YOU DON'T
5 DISCONTINUE THE ACTION. YOU CHECK IT IF YOU ARE GOING TO
6 CONTINUE TO MONITOR AND TO CONTROL HIS DIABETES.
7 AS FAR AS ALLDREDGE AND IMPENDING STROKES, I BELIEVE
8 THE DEFENDANT TESTIFIED THAT HE SAW IN MR. ALLDREDGE AN
9 IMPENDING STROKE AND SO WHEN THE M.R.I. CAME BACK SUBOPTIMAL
10 BUT MAY BE A PROBLEM, HE DECIDED THAT THERE WAS A STROKE.
11 DR. FEHLAUER CAN TESTIFY THAT, YOU KNOW, IF SOMEONE'S HAVING
12 FREQUENT T.I.A., TRANSIENT ISCHEMIC ATTACKS, THAT MAY BE
13 INDICATIONS OF AN IMPENDING STROKE BECAUSE THOSE ARE LITTLE
14 MINI STROKES. THEY MAY BE INDICATIVE OF AN IMPENDING
15 STROKE. BUT, HE SAID, THERE'S NO RECORD OF ANYTHING LIKE
16 THAT PRIOR TO MR. ALLDREDGE'S ADMISSION TO THE HOSPITAL.
17 AND SO, YOU KNOW, HOW CAN THE DEFENDANT SAY THAT HE SAW AN
18 IMPENDING STROKE.
19 AND THEN HE WILL TESTIFY TO THE CLINICAL CORRELATION OF
20 THE KIND OF STROKE THAT MR. ALLDREDGE MIGHT HAVE HAD IN THE
21 OCCIPITAL LOBE. HE WILL TESTIFY AS TO WHAT YOU DO FOR
22 CLINICAL CORRELATION. AND, YOU KNOW, THERE'S NOTHING IN THE
23 RECORD THAT INDICATES THAT WAS DONE. IN ORDER TO SAY THAT
24 THERE WAS A -- THAT THERE WAS A CLINICAL CORRELATION AS FAR
25 AS PAIN FROM KYPHOSIS.
4165
1 MRS. ANDERSON HAD A VERY SEVERE CURVATURE OF THE SPINE.
2 HE WILL TESTIFY THAT SHE WAS VERY CAPABLE OF COMPLAINING OF
3 PAIN FROM THAT AND SHE DID NOT COMPLAIN OF IT. HE WILL
4 TESTIFY, BACK ON THE F.A.S., ABOUT WHAT THE F.A.S. SCORES
5 WERE AND HOW HE ARRIVED AT THEM. I BELIEVE THAT THAT IS
6 WHAT WE'RE INTENDING TO PRESENT.
7 THE COURT: OKAY. ALL RIGHT. THEN HERE'S WHAT I'M
8 GOING TO DO ON THESE. AS TO TRACY SCHOLL, I'M NOT GOING TO
9 HAVE HER BE A REBUTTAL WITNESS. SHE'S TESTIFIED PREVIOUSLY
10 THAT SHE TOLD THE DEFENDANT ABOUT THE RESPIRATION RATE AND
11 VITAL SIGNS AND SO THAT'S ALREADY IN.
12 AS TO BONNIE HARDEY, I'LL ALLOW HER TO TESTIFY, BUT
13 THERE'S GOING TO HAVE TO BE A FOUNDATION ABOUT WHEN SHE WAS
14 THERE, YOU KNOW, THE TIME PERIODS THAT SHE WAS THERE DURING
15 THE RELEVANT TIME PERIOD.
16 AS TO BARBARA AND JAY POHLMAN, IT MAY -- YOU KNOW, THE
17 IDEA OF A JUDGE TRYING TO DETERMINE WHAT COULD BE REASONABLY
18 ANTICIPATED, I UNDERSTAND WHAT THE CASES SAY, BUT IT'S
19 ALMOST AN IMPOSSIBILITY TO APPLY. I'M GOING TO ALLOW THEM
20 TO TESTIFY, BUT IT'S GOING TO BE BRIEF AS TO BEING THERE AT
21 THE TIME AND DURING THE FOUR TO 7:30 WHO THEY SAW.
22 AS TO MICHAEL CROOKSTON, I'LL ALLOW TESTIMONY ON YOUR
23 CHART ABOUT DR. SUPERNAW AND THE HALF LIFE OF DEPAKENE, HE
24 CAN TESTIFY ABOUT THAT. I'LL ALLOW HIM TO TESTIFY ABOUT THE
25 APPROPRIATENESS OF GIVING SERZONE AND TRAZODONE AT DIFFERENT
4166
1 TIMES. IF HE WAS JUST TALKING ABOUT DOING THEM TOGETHER,
2 I'D SAY THAT'S ACCUMULATIVE, BUT IF HE'S GOING TO TESTIFY
3 ABOUT WHAT YOU SAID, DOING THEM AT DIFFERENT TIMES, I'LL
4 ALLOW THAT.
5 I WILL ALLOW THE APPROPRIATENESS TO INCREASE
6 MEDICATIONS IN RESPONSE TO THE FAMILY TELLING. IT MAY BE
7 ARGUMENT, BUT I'LL ALLOW THAT OF CHEYNE-STOKES. I'M NOT
8 GOING TO ALLOW -- DR. HARE'S ALREADY TESTIFIED TO THAT ON
9 REBUTTAL ON THE PEAK EFFECT OF MORPHINE. I'LL ALLOW THAT TO
10 BE TESTIFIED. I'M NOT GOING TO ALLOW THIS CLINICAL EXAM
11 REGARDING THE STROKE OR WHATEVER.
12 AS TO DR. FEHLAUER, I'M GOING TO ALLOW THAT. I'LL
13 ALLOW THIS THING ON PNEUMONIA BRIEFLY. I'LL ALLOW THE
14 F.A.S. SYSTEM. HE'S GOING TO TESTIFY ABOUT THE CONDITIONS
15 OF THOSE PATIENTS AND USE THAT FAST SYSTEM AS AN EXAMPLE.
16 I'LL ALLOW THE MORPHINE HELPING BREATHING, THE HERBST CHART,
17 LIVER AND KIDNEY FAILURE AND DOES TWITCHING INDICATE PAIN.
18 THE 25 PERCENT WEIGHT LOSS AND THE MYCOSIS FUNGOIDES, I WILL
19 ALLOW THOSE.
20 I'M NOT GOING TO ALLOW ABOUT THE FISTULA. I THINK
21 WE'VE HEARD A BUNCH MORE THAN WE NEED ON THAT. I'LL NOT
22 ALLOW THE QUESTION DO ALL PEOPLE DIE IN PAIN. I THINK
23 THAT'S JUST TOTAL SPECULATION. I'LL ALLOW THE QUESTION
24 ABOUT DEHYDRATION BEING PAINFUL. I'LL ALLOW THE QUESTION
25 ABOUT CRANE AT DEATH'S DOOR.
4167
1 THE HISTORY OF MEDICAL CONDITION, I THINK WHAT PEOPLE
2 CAN -- HOW THEY CAME IN HAS BEEN GONE OVER. I THINK IT'S
3 CUMULATIVE. THE THING ABOUT THE SEPSIS IS CUMULATIVE. I'M
4 NOT GOING TO ALLOW THAT. I'M NOT GOING TO ALLOW THE STUFF
5 ABOUT DIABETES. IT'S CUMULATIVE. ABOUT THE PREDICTING
6 IMPENDING STROKES, THAT'S CUMULATIVE. I THINK ABOUT NEARLY
7 EVERY EXPERT TESTIFIED ABOUT THAT. WHEN YOU SAID IS THERE
8 PAIN FROM KYPHOSIS, YOU SAID HE WAS GOING TO TESTIFY THAT
9 SHE DIDN'T COMPLAIN OF IT. I THINK THAT IS A FACTUAL ISSUE.
10 WHAT SHE COMPLAINED ABOUT IS IN THE RECORD, SO THAT'S NOT
11 GOING TO BE ALLOWED.
12 SO, DOES EVERYBODY UNDERSTAND?
13 MR. WILSON: THERE WAS ONE QUESTION ON CROOKSTON,
14 YOUR HONOR, AS TO THE CONVERSION AS IT RELATED TO RISPERDAL
15 IN PLACE OF HALDOL.
16 THE COURT: I WILL ALLOW A CONVERSION RATE.
17 MR. STIRBA: IF THERE IS A DOCUMENT RELATED TO
18 THAT, CAN I SEE IT BEFORE HE TESTIFIES, PLEASE?
19 THE COURT: YES.
20 MR. WILSON: I THINK HE HAS A REFERENCE BOOK AND
21 THAT'S BY --
22 THE COURT: WELL, IF IT'S IN A REFERENCE BOOK, MAKE
23 A COPY OF IT AND GIVE IT TO THE DEFENDANT.
24 MR. WILSON: OKAY.
25 THE COURT: IS THERE ANYTHING ELSE WE NEED TO
4168
1 DISCUSS ABOUT THESE WITNESSES?
2 MS. BARLOW: YOUR HONOR, THE JAPANESE STUDY ABOUT
3 PEOPLE WITH CANCER.
4 THE COURT: I THOUGHT YOU SAID YOU DIDN'T THINK YOU
5 WERE GOING TO DO IT.
6 MS. BARLOW: I WASN'T SURE IF THAT WAS THE FINAL
7 ORDER, BUT IF YOU ARE SAYING THAT, WE'LL NOT GET INTO THAT.
8 THE COURT: WELL, YOU WERE THE ONE THAT WAS SAYING
9 YOU DIDN'T THINK YOU WERE GOING TO GET INTO THAT.
10 MS. BARLOW: I SAID IF WE GOT INTO IT IT WOULD BE
11 ONLY TO REFER TO PEOPLE WITH CANCER.
12 THE COURT: IF YOU WANT TO REFER TO THAT, THAT
13 QUESTION, THAT'S FINE. OKAY. ANYTHING ELSE THAT WE NEED TO
14 DO? DO YOU HAVE WITNESSES? WE'LL BRING THE JURY IN. WE'RE
15 READY TO GO.
16 MR. WILSON: WE MAY -- MAY WE HAVE A FEW MINUTES?
17 THE COURT: LET'S TAKE FIVE MINUTES AND WE'LL
18 NOTIFY THE JURY THAT WE HAVE A SHORT DELAY. LET'S COME BACK
19 AT QUARTER TO.
20 (9:50, COURT RESUMES WITH THE JURY.)
21 THE COURT: PLEASE BE SEATED. THE RECORD WILL
22 REFLECT THAT COUNSEL AND THE DEFENDANT AND THE JURY ARE
23 PRESENT. MR. MAJOR, WOULD YOU LIKE TO CALL THE NEXT
24 REBUTTAL WITNESS?
25 MR. MAJOR: WE WOULD CALL BARBARA POHLMAN, YOUR
4169
1 HONOR.
2 BARBARA POHLMAN,
3 CALLED BY THE PLAINTIFF AS A REBUTTAL WITNESS, HAVING BEEN
4 PREVIOUSLY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
5 DIRECT EXAMINATION
6 BY MR. MAJOR:
7 Q. WOULD YOU STATE YOUR FULL NAME FOR THE RECORD AGAIN.
8 A. BARBARA POHLMAN.
9 Q. AND I WOULD LIKE TO REMIND YOU THAT YOU HAVE TESTIFIED
10 IN THIS COURT ON ONE OCCASION AND YOU WERE PLACED UNDER OATH
11 AT THAT TIME. DO YOU RECALL THAT?
12 A. YES.
13 Q. AND THAT OATH STILL APPLIES AT THIS TIME. I WOULD LIKE
14 TO RECALL YOUR ATTENTION BACK TO THE 29TH DAY OF
15 DECEMBER 1995 AND ASK YOU ON THAT OCCASION, DID YOU
16 ACCOMPANY YOUR MOTHER, ELLEN ANDERSON, TO THE DAVIS HOSPITAL
17 IN LAYTON?
18 A. YES, I DID.
19 Q. AND WHO WAS WITH YOU WHEN YOU WENT THERE?
20 A. MY HUSBAND WENT WITH ME.
21 Q. AND APPROXIMATELY WHAT TIME DID YOU ARRIVE AT THE
22 HOSPITAL?
23 A. AROUND FOUR.
24 Q. IN THE AFTERNOON?
25 A. YES.
4170
1 Q. AND WHAT DID YOU DO WHEN YOU FIRST ARRIVED AT THE
2 HOSPITAL?
3 A. WE WENT TO ADMISSIONS AND STARTED FILLING OUT THE PAPERS
4 TO HAVE HER ADMITTED.
5 Q. WAS YOUR MOTHER WITH YOU AT THAT TIME?
6 A. SHE WAS, YES.
7 Q. AND WHERE WAS ADMISSION LOCATED AT?
8 A. IN THE HOSPITAL. YOU MEAN LOCATION?
9 Q. LOCATION IN THE HOSPITAL?
10 A. ON THE GROUND FLOOR, AS I RECALL.
11 Q. IT WAS NOT IN THE UNIT THEN?
12 A. NO.
13 Q. HOW LONG APPROXIMATELY DID THAT TAKE?
14 A. OH, IT WAS A COUPLE OF HOURS. QUITE LONG.
15 Q. AND AFTER YOU HAD COMPLETED THE DOCUMENTATION OF THE
16 ADMISSION, WHAT DID YOU DO?
17 A. WE WENT UP TO THE UNIT WITH HER AFTER THAT.
18 Q. APPROXIMATELY WHAT TIME DID YOU ARRIVE UP ON THE UNIT,
19 DO YOU KNOW?
20 A. IT WAS PROBABLY AROUND SIX OR 6:30.
21 Q. WHAT HAPPENED WHEN YOU GOT UP ON THE UNIT?
22 A. THEN THEY GOT HER READY AND PLACED HER IN THE BED AND
23 TRIED -- WE JUST TALKED WITH HER QUIETLY AS WE DID BEFORE
24 DOWN IN THE ADMISSIONS. SHE WAS IN A WHEELCHAIR AND WE JUST
25 HELD HER HAND TO GIVE HER SUPPORT AND EVERYTHING. SHE WAS
4171
1 VERY CALM AND PEACEFUL.
2 Q. AND APPROXIMATELY WHAT TIME DID YOU LEAVE?
3 A. IT WAS SOMETIME AFTER SEVEN THAT EVENING. NEAR 7:30, I
4 THINK.
5 Q. AND AGAIN, WHAT WAS YOUR MOTHER'S CONDITION LIKE DURING
6 THIS PERIOD OF TIME FROM APPROXIMATELY FOUR O'CLOCK TO 7:30?
7 A. SHE WAS -- SHE WAS QUIET. SHE WOULD LOOK OVER AT US,
8 YOU KNOW, SORT OF WONDERING WHAT WAS HAPPENING. AND I JUST
9 HELD HER HAND AND TALKED WITH HER QUIETLY.
10 Q. WAS SHE SCREAMING?
11 A. NO, SHE WAS NOT.
12 Q. DID SHE YELL AT ALL?
13 A. NO, SHE DID NOT.
14 Q. DID THAT CHANGE WHEN YOU LEFT?
15 A. WHEN I LEFT THE ROOM SHE CALLED OUT TO ME AND I LOOKED
16 AT MY HUSBAND AND FELT CONCERN BECAUSE I FELT REALLY SAD TO
17 LEAVE HER IN THAT SITUATION, THERE ALONE; AND I HEARD HER
18 CALL TWO OR THREE TIMES MY NAME.
19 Q. DURING THIS PERIOD OF TIME, FROM THE TIME YOU ARRIVED AT
20 THE HOSPITAL AND FILLED OUT THE FORMS UNTIL THE TIME YOU
21 LEFT, DID YOU EVER SEE DR. WEITZEL?
22 A. I DID NOT.
23 Q. DID YOU EVER TALK TO HIM AT ALL?
24 A. I DID NOT.
25 Q. AND DID -- YOU INDICATED THAT YOU HAD NOT -- THAT YOUR
4172
1 MOTHER WAS WITH YOU DURING THIS WHOLE PERIOD OF TIME?
2 A. SHE WAS.
3 Q. WAS THERE ANY TIME WHEN DR. WEITZEL WOULD HAVE SEEN YOUR
4 MOTHER?
5 A. NO.
6 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS, YOUR
7 HONOR.
8 CROSS-EXAMINATION
9 BY MR. STIRBA:
10 Q. GOOD MORNING.
11 A. GOOD MORNING.
12 Q. YOU TESTIFIED THAT YOU WERE IN ADMISSIONS DOWNSTAIRS FOR
13 A COUPLE OF HOURS?
14 A. AS I RECALL.
15 Q. AND WERE YOU WITH YOUR MOTHER THE WHOLE TIME?
16 A. I WAS, THE WHOLE TIME.
17 Q. THE HOSPITAL RECORDS INDICATE THAT SHE WAS ACTUALLY
18 ADMITTED AT 4:10. HAVE YOU REVIEWED THAT? ARE YOU AWARE OF
19 THAT?
20 A. I HAVEN'T REVIEWED IT.
21 Q. OKAY. IS IT POSSIBLE THAT SHE ACTUALLY WAS IN THE
22 PATIENT ROOM AT ABOUT 4:30 THAT AFTERNOON?
23 A. NO. WE WERE THERE AT THE DESK FOR ALMOST TWO HOURS
24 FILLING OUT VARIOUS FORMS. SHE WAS IN THE WHEELCHAIR AND
25 EITHER I HELD HER HAND OR MY HUSBAND DID, WAS HOLDING HER
4173
1 HAND.
2 Q. AND IS IT POSSIBLE THAT DURING THE TIME YOU WERE THERE
3 WOULD SHE BE MOANING?
4 A. SHE WAS NOT. SHE WAS JUST REALLY QUIET. REALLY QUIET.
5 Q. WOULD SHE HAVE BEEN CRYING?
6 A. NO, SHE DIDN'T CRY. SHE JUST HAD THIS SORT OF -- YOU
7 KNOW, WOULD LOOK UP AT US AT TIMES AND JUST WONDERED WHAT
8 WAS HAPPENING.
9 Q. DO YOU RECALL IF SHE WAS -- WOULD YOU DESCRIBE HER AS
10 BEING AGITATED?
11 A. NOT AT ALL. SHE WAS VERY PLACID, VERY QUIET.
12 Q. DO YOU RECALL IF THERE WAS A NURSE, OR SOMEBODY MAYBE
13 HAVING THAT POSITION, THAT WAS -- THAT WAS OBSERVING AND
14 KEEPING TRACK OF YOUR MOTHER DURING THE TIME THAT -- DURING
15 THE ADMISSION PROCESS EVERY FEW MINUTES?
16 A. THE ONLY INDIVIDUAL I RECALL BEING THERE WAS THE ONE WHO
17 WAS ASKING ME ALL THE QUESTIONS AND HAVING ME FILL OUT FORMS
18 AND SO FORTH. THERE WERE OTHER PEOPLE IN THE AREA, BUT NOT
19 THAT WAS CONNECTED WITH US.
20 Q. OKAY. AND SO YOUR TESTIMONY IS THAT YOU ARE DOWN IN --
21 I UNDERSTAND IT'S DOWNSTAIRS. YOU ARE DOWNSTAIRS IN THE
22 ADMISSION PROCESS. YOU GET TO THE HOSPITAL ABOUT FOUR. AND
23 YOU THINK THAT TAKES ABOUT TWO HOURS; IS THAT RIGHT?
24 THE COURT: YOU HAVE TO ANSWER OUT LOUD.
25 THE WITNESS: YES, I DO.
4174
1 Q. (BY MR. STIRBA) AND THEN, AS I UNDERSTAND IT, YOU TAKE
2 YOUR MOTHER WITH YOUR HUSBAND AND YOU GO UPSTAIRS TO THE
3 SECOND FLOOR WHERE THE ACTUAL UNIT WAS?
4 A. CORRECT.
5 Q. SO THAT WOULD BE SOMEWHERE AROUND SIX O'CLOCK?
6 A. AROUND THERE, YES.
7 Q. AND THEN WHEN YOU GET UP THERE, I ASSUME THAT THEN YOUR
8 MOM WAS PUT IN A ROOM; IS THAT RIGHT?
9 A. SHE WAS.
10 Q. AND THEN YOU FOLKS WERE THERE FOR ABOUT HOW LONG AFTER
11 THAT UNTIL YOU LEFT?
12 A. WELL, DEPENDING ON IF IT WAS WHATEVER, AROUND SIX. WE
13 STAYED UNTIL AFTER SEVEN. IT WAS TEN AFTER TO 7:30 I'D SAY
14 THAT WE STAYED THERE WITH HER.
15 Q. NOW, THIS GOES -- THIS GOES BACK A FEW YEARS. WE'RE
16 TALKING ABOUT THE LATTER PART OF '95. HAVE YOU HAD A CHANCE
17 TO REVIEW THE HOSPITAL RECORDS SINCE THAT TIME TO SORT OF
18 SEE IF YOUR MEMORY JIVES WITH THE HOSPITAL RECORDS?
19 A. NO, I HAVE NOT.
20 Q. WOULD IT SURPRISE YOU TO KNOW THAT THERE'S AN ACTUAL
21 RECORD IN THE MEDICAL CHART CALLED AN OBSERVATION RECORD AND
22 THAT IT SAYS THAT AS OF 4:30 THAT AFTERNOON YOUR MOTHER WAS
23 ACTUALLY IN A PATIENT ROOM ON THE UNIT?
24 A. YES, IT WOULD.
25 Q. THAT DOESN'T SQUARE WITH YOUR RECOLLECTION?
4175
1 A. NO, IT DOES NOT.
2 Q. AND ALSO WOULD IT SURPRISE YOU THAT THE ACTUAL NURSING
3 ASSESSMENT FORM, WHICH WAS A FORM I GUESS THAT SOME NURSE
4 PREPARED ON ADMISSION -- I DON'T KNOW WHEN THE TIME WAS, BUT
5 IT'S IN THE RECORD -- DESCRIBES YOUR MOTHER AS BEING
6 BASICALLY MOANING AND CRYING? WOULD THAT SURPRISE YOU?
7 A. YES, IT WOULD.
8 Q. AND WOULD IT ALSO SURPRISE YOU IN THIS OBSERVATION FORM
9 THAT YOUR MOTHER'S CHARACTERIZED AS BEING AGITATED?
10 A. YES.
11 Q. THAT'S INCONSISTENT --
12 A. YOU ARE TALKING ABOUT FROM FOUR O'CLOCK UNTIL WE LEFT?
13 Q. YEAH. ACTUALLY I'M TALKING ABOUT FROM 4:30, YES, UNTIL
14 YOU LEFT, THAT'S RIGHT.
15 A. UH-HUH. YES.
16 Q. WOULD THAT SURPRISE YOU?
17 A. IT DOES. THAT'S NOT THE WAY I RECALL IT.
18 Q. OKAY. NOW, WHEN YOU GOT UP ON THE -- ON THE UNIT FLOOR,
19 DID YOU SEE MORE THAN ONE PERSON WHO WAS WORKING THERE?
20 A. I COULDN'T SAY. I MEAN, I WAS CONCERNED WITH MY MOTHER
21 AND IT WAS -- MY ATTENTION WAS DIRECTED THAT WAY, SO I COULD
22 NOT SAY.
23 Q. I'M SURE THAT -- THAT UNDER THE CIRCUMSTANCES THAT'S
24 WHERE YOU WERE FOCUSED; IS THAT A FAIR STATEMENT?
25 A. THAT'S CORRECT.
4176
1 MR. STIRBA: OKAY. THAT'S ALL I HAVE, JUDGE.
2 THE COURT: ANY REDIRECT?
3 REDIRECT EXAMINATION
4 BY MR. MAJOR:
5 Q. JUST A COUPLE OF QUESTIONS. MS. POHLMAN, YOU ALSO
6 TALKED A LITTLE BIT, ON CROSS-EXAMINATION, CONCERNING NURSE
7 ASSESSMENTS CONCERNING YOUR MOTHER MOANING. DID YOU RECALL
8 TALKING TO THE NURSE AND GIVING A HISTORY OF YOUR MOTHER'S
9 CONDITION?
10 A. YES.
11 Q. AND WHAT DID YOU TELL HER CONCERNING YOUR MOTHER'S
12 CONDITION, DO YOU RECALL?
13 A. I'M SURE IF SHE ASKED WHAT IT HAD BEEN LIKE I WOULD HAVE
14 STATED THAT SHE HAD THIS TYPE OF -- TYPE OF BEHAVIOR. THAT
15 IT WOULD --
16 Q. SO THAT NURSE'S NOTE INDICATING MOANING AND SO FORTH
17 COULD HAVE BEEN A HISTORY RATHER THAN AN ACTUAL EVENT TAKING
18 PLACE?
19 A. YES, IT COULD HAVE.
20 Q. AND --
21 A. WOULD HAVE BEEN.
22 Q. YOUR RECOLLECTION IS THAT THE ADMISSIONS YOU PREPARED
23 AND THE DOCUMENTS YOU SIGNED ACTUALLY ADMITTING YOUR MOTHER
24 TOOK PLACE DOWNSTAIRS; IS THAT CORRECT?
25 A. THAT'S RIGHT.
4177
1 Q. AND THAT WOULD HAVE BEEN APPROXIMATELY -- ADMISSION
2 WOULD HAVE BEEN APPROXIMATELY FOUR O'CLOCK WHEN YOU BEGAN TO
3 SIGN THE PAPERS IN THE ADMISSIONS OFFICE?
4 A. AND FILLING OUT ALL THE FORMS, YES.
5 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS, YOUR
6 HONOR.
7 RECROSS-EXAMINATION
8 BY MR. STIRBA:
9 Q. I'M GOING TO HAVE TO FIRE UP THIS MACHINE AND IT'S GOING
10 TO TAKE A MINUTES. WHAT I'M GOING TO DO, MRS. POHLMAN, WE
11 HAVE THIS ABILITY TO DISPLAY SOME THINGS ON THE MONITOR. I
12 HAVEN'T DONE THIS FOR A WHILE. WE'LL TRY TO GET THIS IN
13 FOCUS.
14 MR. MAJOR: COULD I INQUIRE WHAT PAGE WE'RE LOOKING
15 AT?
16 MR. STIRBA: SURE. IT'S M.E.D. 184.
17 Q. (BY MR. STIRBA) I DON'T KNOW WHETHER YOU CAN SEE THAT
18 VERY WELL. IF YOU CAN'T, PLEASE FEEL FREE TO APPROACH IT.
19 WHAT I'M REALLY TALKING ABOUT IS THIS -- IS THIS INFORMATION
20 RIGHT HERE. THIS IS PART OF THE ASSESSMENT FORM. THIS IS
21 WHAT I WAS ASKING YOU ABOUT PREVIOUSLY. THIS WAS FILLED OUT
22 BY THE NURSE AND IT HAS THIS COGNITIVE PERCEPTUAL PATTERN AT
23 THE TOP. AND IT SAYS BEHAVIOR DURING THE INTERVIEW AND THEN
24 CIRCLE THE APPLICABLE. AND THE NURSE HAS CIRCLED AGITATED.
25 DO YOU SEE THAT?
4178
1 A. OKAY. WHEN WAS THIS? UPSTAIRS IN THE ROOM? IS THAT
2 WHAT --
3 MR. MAJOR: I THINK WE NEED SOME FOUNDATION, YOUR
4 HONOR, WHETHER OR NOT IT WAS FILLED OUT IN HER PRESENCE OR
5 FILLED OUT AFTER SHE LEFT THE HOSPITAL OR, LIKE SHE SAID, IF
6 THIS WAS FILLED OUT DOWNSTAIRS.
7 THE COURT: OKAY. WELL, ASK THE NEXT QUESTION.
8 Q. (BY MR. STIRBA) I'M JUST SHOWING THE DOCUMENT AND I'M
9 TELLING YOU THAT THIS IS AN ASSESSMENT FORM. AND --
10 MR. MAJOR: WELL, YOUR HONOR, MY OBJECTION IS IF
11 THIS HAPPENED AFTER MRS. POHLMAN LEFT THE HOSPITAL, YES, SHE
12 WAS CRYING OUT. THAT'S WHAT MRS. POHLMAN TESTIFIED TO. IF
13 THIS WAS DURING THE TIME THAT MRS. POHLMAN WAS WITH HER THAT
14 MAKES A DIFFERENCE. IF IT HAPPENED AFTER MRS. POHLMAN LEFT
15 THE HOSPITAL AND --
16 MR. STIRBA: I DON'T WANT TO MAKE AN ARGUMENT IN
17 FRONT OF THE JURY, BUT I'M ASKING HER --
18 THE COURT: OVERRULED.
19 Q. (BY MR. STIRBA) AND THIS APPEARS TO BE CIRCLED
20 AGITATED, REFERRING TO BEHAVIOR OF YOUR MOTHER DURING THE
21 INTERVIEW. DO YOU REMEMBER SUCH AN INTERVIEW?
22 A. I REMEMBER NURSES COMING IN AND TALKING WITH US. I
23 DON'T KNOW IF THEY WERE INTERVIEWING ME AT THE TIME OR IF
24 THIS WAS DONE AFTERWARD. I KNOW THAT I WOULD TALK WITH MY
25 MOTHER AND INDICATE THAT THINGS WERE FINE AND THINGS WERE
4179
1 GOING TO BE ALL RIGHT. AND SHE WAS NOT AGITATED. SHE WAS
2 NOT WHAT I WOULD CALL AGITATED AT ALL. SHE WAS VERY CALM
3 WHEN I WAS THERE AND I WAS HOLDING HER HAND AND EVERYTHING.
4 I WOULD NOT SAY SHE WAS AGITATED AT ALL.
5 Q. DO YOU REMEMBER A NURSE EITHER DOWNSTAIRS OR UP ON THE
6 UNIT FILLING OUT A FORM ASKING CERTAIN QUESTIONS ABOUT
7 MEDICAL HISTORY AND THE LIKE?
8 A. I DON'T REMEMBER A NURSE DOWN BELOW AT ALL DOING THAT.
9 Q. HOW ABOUT UP ON THE UNIT, DO YOU REMEMBER SUCH AN
10 ACTIVITY?
11 A. NOT REALLY I DON'T. I REMEMBER THAT NURSES WERE COMING
12 IN AND THEY MAY HAVE BEEN ASKING ME QUESTIONS AND SO FORTH.
13 BUT I DON'T REALLY REMEMBER A DIRECT INTERCHANGE WITH A
14 NURSE ABOUT SPECIFICS.
15 Q. AND THEN ALSO IT GOES ON TO SAY UNDER OTHER, THE NURSE
16 HAS WRITTEN, OR SOMEBODY'S WRITTEN, MOANING AND CRYING. DO
17 YOU SEE THAT?
18 A. I DO.
19 Q. DO YOU REMEMBER WHETHER OR NOT, SEEING THIS DOCUMENT,
20 WHETHER THIS REFRESHES YOUR RECOLLECTION?
21 A. SHE HAD -- AFTER I LEFT THE ROOM I COULD HEAR HER
22 CALLING TO ME. AND THAT WOULD HAVE BEEN BEHAVIOR THAT WAS
23 THERE WHEN I WAS NOT THERE.
24 Q. SO YOU HAVE SOME RECOLLECTION --
25 A. BUT I WAS THERE UNTIL 7:30-ISH.
4180
1 Q. AND YOU HAVE SOME RECOLLECTION THAT -- WHEN YOU SAY YOU
2 LEFT THE ROOM THIS WAS WHEN YOU LEFT TO GO BACK TO YOUR
3 HOME?
4 A. THAT'S CORRECT.
5 MR. STIRBA: OKAY. THAT'S ALL I HAVE. THANK YOU.
6 THE COURT: ANYTHING FURTHER?
7 MR. MAJOR: NOTHING FURTHER, YOUR HONOR.
8 THE COURT: MAY THIS WITNESS BE EXCUSED?
9 MR. MAJOR: SHE MAY.
10 THE COURT: OKAY. THANK YOU. WOULD YOU LIKE TO
11 CALL THE NEXT WITNESS?
12 MR. MAJOR: WE CALL JAY POHLMAN TO THE STAND, YOUR
13 HONOR.
14 JAY POHLMAN,
15 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
16 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
17 DIRECT EXAMINATION
18 BY MR. MAJOR:
19 Q. WOULD YOU PLEASE STATE YOUR NAME FOR THE RECORD.
20 A. JAY E. POHLMAN.
21 Q. AND, MR. POHLMAN, WHAT IS YOUR RELATIONSHIP TO BARBARA
22 POHLMAN?
23 A. SHE'S MY WIFE. I'M HER HUSBAND.
24 Q. AND WHAT IS YOUR RELATIONSHIP TO ELLEN ANDERSON?
25 A. I'M ELLEN ANDERSON'S SON-IN-LAW.
4181
1 Q. AND, MR. POHLMAN, I WOULD LIKE TO CALL YOUR ATTENTION TO
2 THE 29TH DAY OF FEBRUARY 1995 AND ASK TO YOU RECALL
3 ACCOMPANYING YOUR MOTHER, OR YOUR MOTHER-IN-LAW, TO THE
4 HOSPITAL AT DAVIS, DAVIS NORTH?
5 A. YES.
6 Q. WHO WAS WITH YOU AT THAT TIME?
7 A. JUST MY WIFE AND MY MOTHER-IN-LAW CAME DOWN IN OUR
8 VEHICLE.
9 Q. I REFER YOU TO DECEMBER 29 OF 1995?
10 A. YES, SIR.
11 Q. THAT'S THE DATE WE'RE TALKING ABOUT?
12 A. YES.
13 Q. MAKE SURE I GET THE -- READING FROM MY NOTES, I MAY HAVE
14 PICKED UP THE WRONG DAY. ON 29 OF DECEMBER 1995 YOU
15 ACCOMPANIED YOUR WIFE AND YOUR MOTHER-IN-LAW TO DAVIS NORTH
16 HOSPITAL. WHAT DID YOU DO WHEN YOU FIRST ARRIVED AT THE
17 HOSPITAL?
18 A. WE GOT HER TO A WHEELCHAIR AND GOT HER INSIDE AND TOLD
19 HER -- TOLD THE ADMITTING PEOPLE THAT WE HAD BROUGHT HER
20 DOWN. SHE HAD ALREADY BEEN CLEARED FOR ADMITTANCE, WE HAD
21 UNDERSTOOD, TO THAT PSYCHIATRIC -- GERIATRIC PSYCHIATRIC
22 UNIT.
23 Q. APPROXIMATELY WHAT TIME OF DAY WAS THIS?
24 A. ABOUT FOUR O'CLOCK, AS I RECALL.
25 Q. AND WHEN YOU MET WITH THE ADMISSIONS PEOPLE WHERE WAS
4182
1 THAT LOCATED AT INSIDE OF THE HOSPITAL?
2 A. JUST ON THE MAIN LEVEL TO FIRST BE ADMITTED.
3 Q. AND WHAT DID YOU DO THERE?
4 A. FILLED OUT A LOT OF PAPERWORK AND ANSWERED SOME
5 QUESTIONS. I THINK THAT'S WHERE SHE WAS WEIGHED AND TOOK
6 HER HEIGHT. I DON'T KNOW WHETHER THEY TOOK HER HEIGHT, BUT
7 I THINK SHE WAS WEIGHED.
8 Q. AND DO YOU KNOW WHO WOULD HAVE DONE THAT, WHO WOULD HAVE
9 DONE THE WEIGHING?
10 A. NO, I DON'T KNOW WHO THAT WAS.
11 Q. DID THEY TAKE ANY OTHER VITAL SIGNS AT THE TIME?
12 A. IT'S POSSIBLE. I DON'T RECALL THAT.
13 Q. AND WHO FILLED OUT THE MAJORITY OF THE PAPERWORK?
14 A. I BELIEVE THEY DID THROUGH QUESTIONING.
15 Q. WAS THAT INVOLVING YOUR INSURANCE, MEDICAID AND
16 MEDICARE, ALL THAT TYPE OF STUFF?
17 A. THAT SORT OF THING. AND THEN WHEN WE GOT INTO THE UNIT
18 IT WAS VERBAL QUESTIONING AS TO HER BEHAVIOR.
19 Q. AND APPROXIMATELY HOW LONG DID THAT TAKE YOU TO GET ALL
20 OF THAT PAPERWORK DONE AT THE ADMISSIONS OFFICE?
21 A. WELL, AT THE ADMISSIONS OFFICE IT MAY HAVE BEEN MOST OF
22 AN HOUR. AND THEN WE WENT UPSTAIRS AND CONTINUED FOR A
23 LENGTHY PERIOD OF TIME.
24 Q. WAS MISS ANDERSON WITH YOU DURING THIS PERIOD OF TIME
25 WHEN YOU WERE DOING THE ADMISSION?
4183
1 A. YES.
2 Q. DID SHE EVER LEAVE YOUR SIDE OR GET OUT OF YOUR
3 PRESENCE?
4 A. NO.
5 Q. EVEN WHEN THEY WEIGHED HER?
6 A. NO.
7 Q. AND WHAT HAPPENED WHEN YOU GOT UP ONTO THE ACTUAL UNIT?
8 A. THEN THEY PROCEEDED TO ASK QUESTIONS AS TO HER BEHAVIOR,
9 WHAT WAS HER MEDICAL BACKGROUND, WHY WAS SHE THERE. AND WE
10 GAVE THEM THE FOLDER OF THE RECORDS THAT WE HAD BROUGHT DOWN
11 FROM THE PIONEER CARE CENTER IN BRIGHAM CITY.
12 Q. AND HOW LONG DID THIS TAKE?
13 A. WELL, IT WAS PROBABLY ANOTHER COUPLE OF HOURS. PEOPLE
14 WERE IN AND OUT. AND THEY MAY HAVE BEEN -- TOOK HER BLOOD
15 PRESSURE. I DON'T RECALL THAT SPECIFICALLY. IT WAS MOSTLY
16 THE BACKGROUND HISTORY, IF I RECALL.
17 Q. WERE YOU PRESENT WITH MISS ANDERSON DURING THIS WHOLE
18 PERIOD OF TIME?
19 A. YES. DURING THE TIME I WAS HOLDING HER HAND.
20 Q. WAS THERE ANY TIME WHEN YOU WEREN'T IN HER PRESENCE?
21 A. NO.
22 Q. APPROXIMATELY WHAT TIME DID YOU LEAVE?
23 A. IT WAS SOMETIME AFTER SEVEN O'CLOCK AND I THINK CLOSER
24 TO 7:30.
25 Q. DURING THIS PERIOD OF TIME DID YOU EVER SEE DR. WEITZEL?
4184
1 A. NO, SIR.
2 Q. DID YOU EVER TALK TO DR. WEITZEL DURING THIS PERIOD OF
3 TIME?
4 A. NO, SIR.
5 Q. WAS THERE ANY PERIOD OF TIME WHEN YOU WERE NOT WITH YOUR
6 MOTHER WHEN DR. WEITZEL COULD HAVE BEEN WITH YOUR MOTHER?
7 A. NO, SIR.
8 Q. WHAT WAS YOUR MOTHER'S CONDITION FROM THE TIME THAT YOU
9 ARRIVED AT THE HOSPITAL UNTIL THE TIME YOU LEFT?
10 A. WELL, I WAS PLEASANTLY SURPRISED. EVEN IN THOSE STRANGE
11 SURROUNDINGS SHE WAS MORE PASSIVE AND ACCEPTING OF A STRANGE
12 SITUATION THAN I EXPECTED HER TO BE. SHE WAS -- SHE WAS
13 QUIET, CALM AND SHE WASN'T AGITATED OR INDICATING ANY
14 ANXIETY WITH REGARD TO HER -- HER SITUATION THERE. AGAIN, I
15 WAS PLEASANTLY SURPRISED.
16 Q. WASN'T SCREAMING OR YELLING OR ANYTHING LIKE THAT?
17 A. NO, SIR.
18 Q. DID YOU DESCRIBE TO THE NURSE WHAT HER CONDITION HAD
19 BEEN IN THE PAST?
20 A. YES, WE DID.
21 Q. AND DID THAT INVOLVE TALKING ABOUT MOANING AND GROANING
22 AND --
23 A. YES, AND CALLING OUT FOR MY WIFE. SHE'D CALL OUT
24 BARBARA, BARBARA IF BARBARA WAS NOT PRESENT WITH HER. I
25 COULDN'T SEEM TO SATISFY HER TYPICALLY.
4185
1 Q. DURING THIS PERIOD OF TIME DID YOU EVER SEE DR. WEITZEL?
2 A. ON THE 29TH?
3 MR. STIRBA: ALREADY ASKED AND ANSWERED.
4 THE COURT: SUSTAINED.
5 Q. (BY MR. MAJOR) YOUR QUESTION WAS ON THE 29TH. DID YOU
6 SEE HIM AFTER THAT?
7 A. YES.
8 Q. WHEN WAS THAT?
9 A. THE NEXT MORNING.
10 Q. WAS THAT THE FIRST TIME YOU HAD EVER SEEN HIM?
11 A. YES, SIR.
12 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS, YOUR
13 HONOR.
14 THE COURT: MR. STIRBA.
15 CROSS-EXAMINATION
16 BY MR. STIRBA:
17 Q. MR. POHLMAN, DO YOU RECALL AT THE TIME OF ADMISSION THAT
18 YOUR MOTHER-IN-LAW WAS PUT UNDER SOME KIND OF SPECIAL
19 OBSERVATION UP ON THE UNIT?
20 A. NO, SIR.
21 Q. AND YOU -- YOU REMEMBER THERE WERE SOME NURSES WHO ASKED
22 YOU SOME QUESTIONS ABOUT HER CONDITION; IS THAT RIGHT?
23 A. YES.
24 Q. WAS THAT UP ON THE UNIT OR DOWN IN THE ADMISSIONS
25 OFFICE?
4186
1 A. WELL, I THINK BOTH PLACES. BUT MOST OF THE QUESTIONING
2 WAS UPSTAIRS ON THE UNIT.
3 Q. AND DO YOU RECALL IF THERE WAS SOME KIND OF FORM THAT
4 WAS BEING FILLED OUT WHILE THE NURSES WERE ASKING QUESTIONS?
5 A. YES, I DO.
6 Q. AND IT'S TRUE, IS IT NOT, THAT AT THE TIME OF THAT
7 INTERVIEW THAT YOUR MOTHER WAS, YOUR MOTHER-IN-LAW, RATHER,
8 WAS AGITATED?
9 A. NO, SIR.
10 Q. AND SO YOU DIDN'T SENSE ANY AGITATION DURING THE WHOLE
11 TIME YOU WERE THERE; IS THAT RIGHT?
12 A. NO, SIR.
13 Q. DO YOU RECALL THAT SHE WAS IN THE ROOM, IN THE PATIENT
14 ROOM, AT 4:30 IN THE AFTERNOON?
15 A. NO.
16 Q. THAT DOESN'T SQUARE WITH YOUR RECOLLECTION?
17 A. NOT AT 4:30. I THINK THAT WAS A LITTLE LATER. WE WERE
18 IN THE PATIENT ROOM LATER.
19 Q. AND HOW MUCH LATER DO YOU RECALL THAT SHE WAS ACTUALLY
20 IN THE ROOM ON THE UNIT?
21 A. I WOULD SAY FIVE O'CLOCK OR SO.
22 Q. SO SHE WAS IN THE ROOM, DO YOU THINK, AT LEAST BY FIVE
23 O'CLOCK?
24 A. WELL, THAT'S MY GUESS. YOU KNOW, IT'S FOUR-AND-A-HALF
25 YEARS AGO.
4187
1 Q. AND I APPRECIATE THAT. WHEN SHE GOT IN THE ROOM, I
2 ASSUME SOME FOLKS CAME IN TO TEND TO HER; IS THAT RIGHT?
3 A. WELL, THEY GOT HER ONTO THE BED. SHE WAS ON THE BED
4 MOST, IF NOT ALL, OF THE TIME ONCE THEY GOT HER OUT OF THE
5 WHEELCHAIR. SHE WAS LYING THERE AND AGAIN HOLDING MY HAND
6 AS MY WIFE WAS RESPONDING TO THE QUESTIONING.
7 Q. AND THERE WAS MORE THAN ONE NURSE THAT WAS ASSISTING AT
8 THAT TIME?
9 A. I REMEMBER ONE INDIVIDUAL DOING MOST OF THE QUESTIONING
10 WITH A CLIPBOARD AND CHECKING BOXES OR WRITING DOWN THE
11 RESPONSES.
12 Q. AND DO YOU RECALL SOME OTHER FOLKS COMING DOWN THE
13 HALLWAY AND COMING INTO THE ROOM?
14 A. WELL, THAT'S POSSIBLE. THERE WAS A PATIENT IN THE OTHER
15 BED.
16 Q. OKAY. SO THAT'S POSSIBLE IN TERMS OF SOME OTHER PEOPLE
17 THAT CAME IN THE ROOM; IS THAT RIGHT?
18 A. YES, SIR.
19 Q. AND IT'S TRUE, IS IT NOT, THAT AS OF THAT POINT, THAT IS
20 THE 29TH, YOU HAD NEVER MET DR. WEITZEL BEFORE?
21 A. NO, SIR.
22 Q. AND THE ONLY REASON WHY YOU KNOW THAT YOU TALKED TO DR.
23 WEITZEL ON THE 30TH, THE NEXT DAY, IS I PRESUME HE
24 INTRODUCED HIMSELF TO YOU?
25 A. THAT'S CORRECT.
4188
1 Q. AND HE SAID HI, I'M DR. WEITZEL?
2 A. RIGHT.
3 Q. AND THEN YOU HAD A CONVERSATION?
4 A. RIGHT.
5 Q. THAT'S ALL I HAVE.
6 THE COURT: ANYTHING FURTHER?
7 MR. MAJOR: NOTHING FURTHER, YOUR HONOR.
8 THE COURT: MAY THIS WITNESS BE EXCUSED?
9 MR. MAJOR: HE MAY.
10 THE COURT: THANK YOU. WOULD YOU LIKE TO CALL YOUR
11 NEXT REBUTTAL WITNESS?
12 MS. BARLOW: WE NEXT CALL BONNIE HARDEY.
13 BONITA HARDEY,
14 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
15 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
16 DIRECT EXAMINATION
17 BY MS. BARLOW:
18 Q. GOOD MORNING.
19 A. GOOD MORNING.
20 Q. WOULD YOU STATE YOUR NAME AGAIN FOR THE RECORD.
21 A. BONITA HARDEY.
22 Q. AND YOU'VE BEEN HERE AND TESTIFIED PREVIOUSLY TO THIS;
23 IS THAT CORRECT?
24 A. YES.
25 Q. I'LL REMIND YOU THAT YOU ARE STILL UNDER OATH.
4189
1 A. OKAY.
2 Q. MISS HARDEY, HAVE YOU HAD OCCASION TO REVIEW WHAT DAYS
3 YOU WORKED AT THE DAVIS NORTH HOSPITAL BETWEEN DECEMBER 6,
4 1995 AND JANUARY 14 OF 1996?
5 A. NOT A WHOLE BUNCH.
6 Q. WOULD YOU PULL OUT JUDITH LARSEN'S BINDER THERE. WOULD
7 YOU EITHER MAKE NOTES OR AT LEAST SIGN YOUR NAME ON THE
8 NURSING NOTE FOR DAYS THAT YOU WOULD HAVE WORKED DURING THAT
9 TIME PERIOD?
10 A. YES.
11 Q. MAYBE, IF WE CAN START WITH 524, WHICH IS THE ADMIT. I
12 BELIEVE THIS IS THE 6TH OF DECEMBER. DID YOU WORK THAT DAY?
13 A. NO.
14 Q. WHAT ABOUT THE NEXT PAGE, 525?
15 A. OKAY. YES, THAT'S MY SIGNATURE.
16 Q. WHAT SHIFT DID YOU WORK? THAT APPEARS TO BE THE 6TH OF
17 DECEMBER. ITS CUT OFF AT THE TOP...
18 A. YES. I WORKED A THREE UNTIL 11 SHIFT.
19 Q. THREE UNTIL 11:00 P.M.?
20 A. YES.
21 Q. THE 7TH DID YOU WORK?
22 A. NO.
23 Q. HOW ABOUT THE 8TH?
24 A. NO.
25 Q. THE 9TH?
4190
1 A. NO.
2 Q. WELL, MAYBE WE BETTER HAVE YOU JUST KIND OF LOOK THROUGH
3 AND SEE WHAT'S THE NEXT DAY THAT YOU WORKED?
4 A. IT LOOKS LIKE THE 11TH.
5 Q. AND WHAT SHIFT DID YOU WORK THEN?
6 A. THREE TO 11.
7 Q. AND WHAT'S THE NEXT DAY THAT YOU WORKED?
8 A. THE 12TH.
9 Q. AND WHAT SHIFT?
10 A. THREE TO 11.
11 Q. AND THE NEXT DAY?
12 A. THE 13TH, THREE TO 11.
13 Q. AND THE NEXT DAY?
14 A. THE 16TH.
15 Q. WHICH SHIFT?
16 A. SEVEN TO THREE. AND THEN ON THE 17TH --
17 Q. EXCUSE ME. I'M SORRY. I DIDN'T HEAR THE SHIFT ON THE
18 16?
19 A. SEVEN TO THREE, A MORNING SHIFT.
20 Q. SEVEN TO THREE IN THE MORNING. AND THE 17TH, YOU SAY?
21 A. THE 17TH, YES.
22 Q. WHAT SHIFT?
23 A. THAT WOULD BE A MORNING SHIFT. AND THEN THE 19TH, A
24 THREE TO 11 SHIFT. THE 20TH, A THREE TO 11 SHIFT. THE
25 24TH, THREE TO 11 SHIFT. THE 25TH, A MORNING SHIFT, THREE
4191
1 TO 11.
2 Q. YOU SAY MORNING SHIFT?
3 A. I MEAN A SEVEN TO THREE.
4 Q. SEVEN TO THREE.
5 A. THE 26TH, THE THREE TO 11 SHIFT. THE 27TH, A MORNING
6 SHIFT, SEVEN TO THREE. THE 30TH, A MORNING SHIFT. THE
7 31ST, A MORNING SHIFT. THE 1ST, A MORNING SHIFT. THE 2ND,
8 A THREE TO 11 SHIFT. THE 3RD, A THREE TO 11 SHIFT.
9 Q. I BELIEVE THAT'S THE LAST OF THE RECORDS FOR MISS
10 LARSEN. DURING THAT TIME PERIOD DO YOU RECALL DR. WEITZEL
11 COMING TO VISIT JUDITH LARSEN?
12 A. I RECALL ONE PARTICULAR NIGHT, THE NIGHT THAT WE --
13 MR. STIRBA: I'M GOING TO OBJECT. IT'S BEYOND THE
14 SCOPE OF WHAT HER QUESTION WAS.
15 Q. (BY MS. BARLOW) DO YOU REMEMBER DURING THESE TIME
16 PERIODS THAT YOU WERE ON SHIFT?
17 A. YES, I DO.
18 Q. WHAT TIME OF DAY WOULD DR. WEITZEL COME IN TO SEE THE
19 PATIENTS?
20 A. THIS ONE TIME WAS 11:00 O'CLOCK AT NIGHT.
21 MS. BARLOW: YOUR HONOR, SHE RECALLS A SPECIFIC
22 DAY.
23 MR. STIRBA: IF THAT'S ALL SHE REMEMBERS, THAT'S
24 ALL SHE CAN TESTIFY TO.
25 Q. (BY MS. BARLOW) DO YOU RECALL ANY OTHER DATES AND WHAT
4192
1 TIME HE WOULD COME IN --
2 THE COURT: ARE YOU TALKING ABOUT DECEMBER 6
3 THROUGH JANUARY 3RD?
4 MS. BARLOW: I AM.
5 Q. (BY MS. BARLOW) -- DURING THIS TIME PERIOD TO SEE
6 JUDITH LARSEN?
7 A. DURING THIS SPECIFIC TIME I JUST RECALL ONE DATE THAT I
8 CAN SAY YES FOR SURE AND THAT WAS AT 11:00 O'CLOCK.
9 Q. 11:00 O'CLOCK?
10 A. AT NIGHT.
11 Q. DO YOU RECALL ANY OTHER SPECIFIC TIMES WITH ANY OF THE
12 OTHER PATIENTS WHEN DR. WEITZEL CAME?
13 MR. STIRBA: I'M GOING TO OBJECT. FOUNDATION, YOUR
14 HONOR.
15 MS. BARLOW: WELL, IT'S BROAD, AND THEN IF SHE
16 DOESN'T RECALL ANY OR IF SHE RECALLS SOME, I'LL ASK HER.
17 THE COURT: ALL RIGHT. GO AHEAD.
18 THE WITNESS: I WORKED THREE UNTIL 11 AND HE WOULD
19 COME IN ON THAT SHIFT WITH OTHER PATIENTS, YES.
20 Q. (BY MS. BARLOW) DURING THE TIME PERIOD WE'RE TALKING
21 ABOUT HERE, DECEMBER 6 TO JANUARY 4?
22 A. DURING DECEMBER, YES, HE WOULD COME.
23 Q. THREE TO 11, WHAT TIME DURING THAT SHIFT WOULD HE COME?
24 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
25 THE COURT: LET'S HAVE SOME FOUNDATION.
4193
1 Q. (BY MS. BARLOW) DO YOU RECALL ANY SPECIFIC DAYS?
2 WE'VE GOT THESE TIMES THAT YOU WORKED THREE TO 11?
3 A. RIGHT.
4 Q. OKAY. DO YOU RECALL ANY OTHER SPECIFIC DAYS OF HIM
5 COMING IN DURING THAT THREE TO 11 SHIFT?
6 A. A SPECIFIC DATE WITH JUDITH LARSEN, I DO, A SPECIFIC
7 DATE.
8 Q. DO YOU RECALL ANY OTHER SPECIFIC DATES WITH ANY OF THE
9 OTHER PATIENTS?
10 A. NO.
11 Q. THIS THREE TO 11 SHIFT, DO YOU RECALL APPROXIMATELY WHAT
12 TIME DR. WEITZEL WOULD COME IN DURING THIS TIME PERIOD ON
13 THAT SHIFT?
14 MR. STIRBA: I'M GOING TO OBJECT. IRRELEVANT.
15 THE COURT: SUSTAINED.
16 MS. BARLOW: YOUR HONOR, WITH THAT I HAVE NO
17 FURTHER QUESTIONS.
18 THE COURT: ANY CROSS-EXAMINATION?
19 MR. STIRBA: NO QUESTIONS, YOUR HONOR.
20 THE COURT: MAY THIS WITNESS BE EXCUSED?
21 MS. BARLOW: SHE MAY BE EXCUSED, YOUR HONOR.
22 THE COURT: OKAY. WOULD YOU LIKE TO CALL THE NEXT
23 WITNESS?
24 MR. WILSON: YES, YOUR HONOR. WE CALL DR. MICHAEL
25 CROOKSTON TO THE STAND AT THIS TIME.
4194
1 MICHAEL CROOKSTON,
2 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
3 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
4 DIRECT EXAMINATION
5 BY MR. WILSON:
6 Q. DR. CROOKSTON, WILL YOU STATE YOUR FULL NAME FOR THE
7 RECORD, PLEASE.
8 A. MICHAEL JAMES CROOKSTON.
9 Q. AND, SIR, YOU'VE BEEN -- YOU'VE GIVEN PREVIOUS TESTIMONY
10 IN THIS MATTER AND HAVE BEEN SWORN BEFORE AND ARE UNDER OATH
11 AT THIS TIME. YOU UNDERSTAND THAT?
12 A. YES.
13 Q. OKAY. DR. CROOKSTON, I WOULD LIKE TO FIRST ASK YOU A
14 FEW QUESTIONS AS RELATES TO THE MEDICATION DEPAKENE. CAN
15 YOU TELL US WHAT TYPE OF MEDICATION THAT IS?
16 A. DEPAKENE IS AN ANTICONVULSANT THAT'S USED FOR TREATMENT
17 OF EPILEPSY. IT'S ALSO USED IN THE TREATMENT OF MOOD
18 DISORDERS, AS MOOD STABILIZERS. IT CAN ALSO BE USED TO
19 TREAT AGITATED OR AGGRESSIVE BEHAVIOR.
20 Q. NOW, YOU'RE CURRENTLY PRACTICING AS A PSYCHIATRIST; IS
21 THAT CORRECT?
22 A. YES, I AM.
23 Q. DO YOU USE THAT PARTICULAR MEDICATION IN THAT PRACTICE?
24 MR. STIRBA: I'M GOING TO OBJECT. IRRELEVANT, YOUR
25 HONOR.
4195
1 THE COURT: SUSTAINED.
2 Q. (BY MR. WILSON) IN RESPECT TO THE MEDICATION, SIR, CAN
3 YOU TELL US, ARE YOU FAMILIAR WITH THE TERM HALF LIFE?
4 A. YES, I AM.
5 Q. AND WHAT DOES THAT TERM MEAN?
6 A. HALF LIFE IS GENERALLY REFERRED TO AS THE AMOUNT OF TIME
7 THAT IT TAKES FOR A DRUG TO GET OUT OF THE BLOOD SYSTEM BY
8 HALF. SO IT'S THE NUMBER OF HOURS FOR THE BLOOD LEVEL TO
9 FALL BY 50 PERCENT.
10 Q. OKAY. AND DID YOU REFERENCE ANY SOURCE MATERIAL IN
11 RESPECT TO PREPARATION FOR THESE PROCEEDINGS HERE TODAY?
12 A. YES, I DID.
13 Q. CAN YOU TELL US WHAT SOURCE MATERIAL THAT WAS?
14 A. I REFERRED TO THE "PHYSICIANS DESK REFERENCE" FROM 1995.
15 I ALSO REFERRED TO GOODWIN AND GILLMAN, WHICH IS A STANDARD
16 TEXT ON PHARMACOLOGY. I ALSO REFERRED TO SEVERAL
17 PSYCHIATRIC TEXTS, INCLUDING THE "COMPREHENSIVE TEXTBOOK OF
18 PSYCHIATRY" BY KATHLINE SADAR, A VERY STANDARD REFERENCE.
19 Q. DOES YOUR REVIEW OF THE MEDICAL LITERATURE PROVIDE YOU
20 INFORMATION AS TO HALF LIFE?
21 A. YES.
22 Q. HAVE YOU ALSO HAD EXPERIENCE AS TO THE USE OF THIS DRUG?
23 A. YES, I HAVE.
24 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. IT'S
25 IRRELEVANT.
4196
1 THE COURT: SUSTAINED.
2 MR. WILSON: I THINK IT GOES TO HIS TESTIMONY, YOUR
3 HONOR.
4 MR. STIRBA: NO. IT'S HALF LIFE.
5 THE COURT: THE HALF LIFE WAS THE QUESTION AND HOW
6 IT RELATES TO --
7 MR. WILSON: I THINK IT RELATES TO HIS EXPERIENCE
8 ALSO, YOUR HONOR.
9 THE COURT: OKAY. I SUSTAINED THE OBJECTION.
10 Q. (BY MR. WILSON) BASED UPON YOUR REVIEW, DOCTOR, CAN
11 YOU TELL US, DO YOU HAVE AN OPINION AS TO WHAT THE HALF LIFE
12 OF THIS PARTICULAR MEDICATION IS?
13 A. OF DEPAKENE, THE PUBLISHED HALF LIFE VARIES FROM SIX TO
14 16 HOURS OR SO, DEPENDING ON OTHER MEDICATIONS THAT A PERSON
15 IS TAKING. TYPICALLY AN EPILEPTIC PERSON, IF THEY WERE
16 TAKING OTHER ANTICONVULSANT DRUGS THAT CAUSE THE LIVER TO
17 METABOLIZE DRUGS FASTER, IT HAS A SHORTER HALF LIFE. IN THE
18 AVERAGE PERSON WHO'S TAKING ONLY DEPAKENE OR DEPAKOTE AS AN
19 ANTI-CONVULSANT OR MOOD STABILIZER, THE HALF LIFE IS AT THE
20 HIGHER END. IT'S 16 HOURS OR SO. AND WE KNOW THAT IN THE
21 ELDERLY THAT HALF LIFE IS EXTENDED EVEN LONGER.
22 Q. CAN YOU TELL US, DOCTOR, HAVE YOU HAD OCCASION TO REVIEW
23 MARY CRANE'S RECORDS?
24 A. YES, I HAVE.
25 Q. AND CALLING YOUR ATTENTION TO, I THINK IT WAS JANUARY 6,
4197
1 1996, CAN YOU TELL US WHETHER OR NOT SHE RECEIVED THE
2 MEDICATION DEPAKENE DURING THAT TIME PERIOD?
3 A. YES. ON JANUARY 6 SHE RECEIVED A TOTAL OF A THOUSAND
4 MILLIGRAMS OF DEPAKENE.
5 Q. OKAY. AND IN RESPECT TO THE FOLLOWING DAY, JANUARY THE
6 7TH, DO YOU KNOW WHETHER OR NOT SHE WAS ADMINISTERED ANY OF
7 THE DRUG DEPAKENE?
8 A. SHE WAS GIVEN ANOTHER DOSE AT EIGHT O'CLOCK IN THE
9 MORNING ON THE 7TH.
10 Q. OKAY. YOU'VE ALSO REVIEWED THE OTHER MEDICATIONS THAT
11 WERE ADMINISTERED TO HER IN THIS SAME TIME FRAME; IS THAT
12 CORRECT?
13 A. YES, SIR.
14 Q. BASED UPON YOUR REVIEW OF THE RECORDS WOULD YOU HAVE AN
15 OPINION AS TO WHEN -- AS TO WHETHER OR NOT THE MEDICATION
16 DEPAKENE WAS STILL IN HER SYSTEM AS OF THE TIME OF HER DEATH
17 ON THE 7TH OF JANUARY?
18 A. I THINK IT MOST DEFINITELY WAS STILL PRESENT.
19 Q. ARE YOU FAMILIAR WITH THE MEDICATION OF SERZONE AND
20 TRAZODONE?
21 A. YES, I AM. THEY ARE COMMON PSYCHIATRIC MEDICATIONS.
22 Q. AND IN RESPECT TO THEIR USE AT CERTAIN TIMES OF THE DAY,
23 DOES ONE MEDICATION HAVE MORE SEDATING EFFECT THAN THE OTHER
24 MEDICATION?
25 A. TRAZODONE IS SOMEWHAT MORE SEDATING THAN SERZONE, BUT
4198
1 THEY ARE BOTH QUITE SEDATING. AND THAT'S THE LIMITING SIDE
2 EFFECT FREQUENTLY, HOW MUCH A PERSON CAN TAKE. IT MAKES
3 THEM TOO TIRED AND SLEEPY.
4 Q. IN RESPECT TO THE PRACTICE OF ADMINISTERING SERZONE
5 DURING THE DAYTIME AND TRAZODONE AT NIGHT, CAN YOU COMMENT
6 ON AND THAT PARTICULAR PRACTICE?
7 A. THEY ARE BOTH THE SAME TYPE OF DRUG FROM THE SAME
8 CHEMICAL FAMILY. THEY ARE BOTH ANTIDEPRESSANTS. I KNOW OF
9 NO GOOD PHARMACOLOGICAL REASON TO PRESCRIBE THEM IN
10 COMBINATION THAT WAY. AND IN GENERAL A PSYCHIATRIST WOULD
11 CHOOSE ONE OR THE OTHER TO TREAT A PATIENT WITH.
12 Q. OKAY. LET'S TALK A LITTLE BIT ABOUT THE MEDICATIONS
13 RISPERDAL AND HALDOL. CAN YOU TELL US, ARE THOSE DRUGS
14 SIMILAR IN THE DESIRED EFFECTS?
15 A. YES. THEY ARE BOTH ANTIPSYCHOTIC MEDICATIONS OR
16 NEUROLEPTIC MEDICATIONS. RISPERDAL IS CONSIDERED IN THE
17 CLASS THAT'S CALLED ATYPICAL NEUROLEPTIC. IT'S A NEWER
18 MEDICATION THAN HALDOL. BUT THEY ARE BOTH USED FOR THE SAME
19 PURPOSE.
20 Q. AND WHAT IS THAT, SIR?
21 A. THE PRIMARY PURPOSE IS TO TREAT PSYCHOSES FROM
22 HALLUCINATIONS OR BEING OUT OF TOUCH WITH REALITY OR HAVING
23 DELUSIONAL OR FALSE BELIEFS THAT ARE INCONSISTENT WITH
24 REALITY.
25 Q. CAN YOU TELL US, SIR, IS THERE A -- IS THERE MEDICAL
4199
1 LITERATURE THAT YOU'VE REVIEWED IN CONNECTION WITH THESE
2 PROCEEDINGS AS TO THE -- IF YOU ARE GOING TO CHANGE FROM ONE
3 DRUG TO THE OTHER, ANY CONVERSION RATE?
4 A. YES. I REVIEWED THE RELATIVE POTENCY OF THESE DRUGS AS
5 TO CONVERTING FROM ONE DRUG TO THE OTHER. AND IN GENERAL
6 RISPERDAL IS SLIGHTLY STRONGER THAN HALDOL, BUT NOT A LOT.
7 AND SO IF YOU WERE GOING TO CHANGE FROM ONE MILLIGRAM OF
8 RISPERDAL TO HALDOL, THE EQUIVALENT WOULD BE ONE-AND-A-THIRD
9 TO ONE-AND-A-HALF MILLIGRAMS OF HALDOL.
10 Q. ONE-AND-A-THIRD TO ONE-AND-HALF GRAMS OF HALDOL?
11 A. MILLIGRAMS.
12 Q. MILLIGRAMS. IN YOUR REVIEW OF THE CASES HERE, DID YOU
13 SEE ANY CONVERSION FROM RISPERDAL TO HALDOL?
14 A. YES, I DID.
15 Q. CAN YOU BE SPECIFIC AS TO WHAT PATIENT THAT WAS OR WAS
16 IT MORE THAN ONE PATIENT?
17 A. I BELIEVE IT WAS MORE THAN ONE PATIENT. BUT I'LL --
18 ENNIS ALLDREDGE IN PARTICULAR, THERE'S AN ORDER ON JANUARY
19 10 THAT SAYS HALDOL, FIVE MILLIGRAMS INTRAMUSCULARLY, IN THE
20 MORNING; AND FIVE P.M. AT BEDTIME TO BE GIVEN IF THE PATIENT
21 REFUSES RISPERDAL. THE RISPERDAL DOSE THAT WAS ORDERED WAS
22 ONE MILLIGRAM. AND SO INSTEAD OF CHANGING ONE MILLIGRAM OF
23 RISPERDAL TO MAYBE ONE-AND-A-HALF OF HALDOL, FIVE MILLIGRAMS
24 WERE ORDERED, WHICH WOULD BE AT LEAST THREE TIMES AS MUCH AS
25 THE EQUIVALENT DOSE.
4200
1 Q. DOCTOR, IN YOUR PROFESSION DO YOU MEET WITH FAMILIES OF
2 INDIVIDUALS THAT YOU ARE TREATING?
3 A. FREQUENTLY.
4 Q. IN CONNECTION WITH THOSE FAMILY MEETINGS, DO YOU DISCUSS
5 THE TREATMENT OF THE PATIENT?
6 A. YES. WITH THE PATIENT'S PERMISSION OF COURSE.
7 Q. IN RESPECT TO THE APPROPRIATENESS OR INAPPROPRIATENESS
8 OF INCREASING MEDICATIONS BASED UPON FAMILY DESIRES, IS THAT
9 SOMETHING YOU DO IN YOUR PRACTICE?
10 A. I LISTEN TO THE FAMILY'S CONCERNS, BUT THE DECISION
11 ABOUT MEDICATION HAS TO BE MADE ON A MEDICAL AND PSYCHIATRIC
12 BASIS AND NOT JUST BECAUSE A FAMILY MEMBER IS REQUESTING IT.
13 Q. OKAY. I WANT TO TALK A LITTLE BIT ABOUT GOING BACK
14 TO -- YOU PREVIOUSLY TESTIFIED ABOUT THE ADMINISTRATION OF
15 MORPHINE; IS THAT CORRECT?
16 A. YES.
17 Q. CAN YOU TELL US, SIR, BASED UPON YOUR REVIEW OF THE
18 LITERATURE, AS TO THE -- WELL, FIRST OF ALL, DOES MORPHINE
19 HAVE A PEAK EFFECT AFTER BEING ADMINISTERED?
20 A. THE PEAK EFFECT DEPENDS ON HOW THE MORPHINE IS
21 ADMINISTERED. WITH AN INTRAMUSCULAR INJECTION IT'S
22 GENERALLY UNDERSTOOD THAT THE PEAK EFFECT OCCURS VERY
23 RAPIDLY, LESS THAN A HALF HOUR. HOWEVER, THE EFFECT
24 CONTINUES FOR SEVERAL HOURS. AND ITS EFFECT ON A PERSON'S
25 BREATHING CAN LAST AT LEAST FOUR TO FIVE HOURS. AND THESE
4201
1 NUMBERS THAT GET BROUGHT UP ARE ALL AVERAGES OF GENERALLY
2 HEALTHY YOUNGER ADULTS.
3 MR. STIRBA: YOUR HONOR, COULD WE HAVE A QUESTION,
4 PLEASE?
5 THE COURT: ASK ANOTHER QUESTION.
6 Q. (BY MR. WILSON) IN RESPECT TO THE PEAK EFFECT, DOES
7 AGE HAVE ANY RELEVANCE ON THE PEAK EFFECT?
8 A. AGE MAKES A PERSON MORE SENSITIVE TO THE EFFECTS WHICH
9 WOULD OCCUR AT THE PEAK, MORE SUSCEPTIBLE TO SIDE EFFECTS.
10 Q. IS THERE ANY OTHER PHYSICAL FACTORS OF A PERSON'S BODY
11 THAT WOULD HAVE AN IMPACT ON THE PEAK EFFECT?
12 A. YES. IN THE CASE OF MORPHINE WHEN IT'S INJECTED INTO A
13 MUSCLE, INTRAMUSCULAR, ITS ABSORPTION INTO THE BLOOD STREAM
14 DEPENDS ON THE BLOOD FLOW TO THAT MUSCLE. IF A PERSON IS
15 COLD OR IF THEY HAVE LOW BLOOD PRESSURE, THAT PEAK EFFECT IS
16 GOING TO BE DELAYED, AND IT CAN BE DELAYED SIGNIFICANTLY,
17 UNTIL THE BLOOD FLOW IS ABLE TO CAUSE THE ABSORPTION FROM
18 WHERE THE INJECTION WAS MADE. SO THE PEAK EFFECT, RATHER
19 THAN OCCURRING WITHIN A HALF HOUR, MIGHT OCCUR EVEN HOURS
20 LATER.
21 Q. DID YOU REVIEW THE CASE OF ELLEN ANDERSON?
22 A. YES.
23 Q. CAN YOU TELL US WHETHER OR NOT YOU SEE ANYTHING IN THE
24 RECORD RELATED TO HER AGE OR, I GUESS IT WOULD BE, BLOOD
25 PRESSURE THAT YOU'VE JUST TESTIFIED TO; IS THAT CORRECT?
4202
1 MR. STIRBA: I WOULD OBJECT, YOUR HONOR. IT'S
2 CUMULATIVE AND BEYOND THE SCOPE. IT WASN'T IN THE PROFFER.
3 THE COURT: I'LL SUSTAIN THAT OBJECTION.
4 MR. WILSON: THANK YOU. DOCTOR, I HAVE NO FURTHER
5 QUESTIONS?
6 THE COURT: ANY CROSS-EXAMINATION?
7 MR. STIRBA: YES.
8 CROSS-EXAMINATION
9 BY MR. STIRBA:
10 Q. DOCTOR, YOU JUST TESTIFIED, DID YOU NOT, THAT THE PEAK
11 EFFECT IN AN I.M. INJECTION IS RAPID AND NORMALLY LESS THAN
12 ONE HALF HOUR; IS THAT TRUE?
13 A. GENERALLY, YES.
14 Q. AND IT'S TRUE, IS IT NOT, THAT INDIVIDUAL MEDICATIONS
15 AFFECT INDIVIDUALS DIFFERENTLY, CORRECT?
16 A. YES, SIR.
17 Q. SO IT'S TRUE, IS IT NOT, THAT THE PEAK EFFECT, AS YOU
18 JUST TESTIFIED TO, COULD VARY DEPENDING UPON THE INDIVIDUAL,
19 CORRECT?
20 A. YES, SIR.
21 Q. BUT YOU FEEL COMFORTABLE SAYING THAT IN AN I.M.
22 INJECTION THE NORMAL PEAK EFFECT WOULD BE REACHED IN LESS
23 THAN A HALF HOUR, TRUE?
24 A. YES.
25 Q. AND IT'S TRUE, IS IT NOT, THAT THE MAXIMUM RESPIRATORY
4203
1 DEPRESSANT IN AN INDIVIDUAL WOULD OCCUR AT THE PEAK?
2 A. THAT DEPENDS ON SEVERAL OTHER FACTORS INCLUDING THE
3 PATIENT'S PHYSICAL STATUS AND INCLUDING OTHER MEDICATIONS
4 THAT THEY ARE TAKING. BUT IN GENERAL, YES, THE PEAK
5 RESPIRATORY DEPRESSION WOULD OCCUR NEAR THE PEAK EFFECT OF
6 THE DRUG.
7 Q. SURE.
8 A. AND THEN LAST FOR SEVERAL HOURS GENERALLY.
9 Q. NOW, DEPAKENE, YOU HAVE -- DID YOU LOOK AT THE GERIATRIC
10 DOSAGE HANDBOOK FOR PURPOSES OF HALF LIFE?
11 A. NO, SIR.
12 Q. WOULD YOU AGREE THAT IF I READ TO YOU THAT IN THE
13 GERIATRIC DOSAGE HANDBOOK THE HALF LIFE OF DEPAKENE IS EIGHT
14 TO 17 HOURS AND THE ONLY CLARIFICATION OR QUALIFICATION THEY
15 HAVE IS INCREASED HALF LIFE IN PATIENT WITH LIVER DISEASE,
16 WOULD YOU AGREE WITH THAT STATEMENT?
17 A. NO, SIR.
18 MR. STIRBA: THAT'S ALL I HAVE. THANK YOU.
19 THE COURT: ANY REDIRECT?
20 MR. WILSON: NO FURTHER REDIRECT.
21 THE COURT: MAY THIS WITNESS BE EXCUSED?
22 MR. WILSON: HE MAY.
23 THE COURT: LADIES AND GENTLEMEN, WHY DON'T WE TAKE
24 OUR BREAK AT THIS TIME. AT THIS TIME REMEMBER, IT'S YOUR
25 DUTY NOT TO DISCUSS THE CASE AMONGST YOURSELVES OR WITH
4204
1 ANYONE ELSE OR ALLOW YOURSELVES TO BE ADDRESSED BY ANYONE
2 REGARDING THE SUBJECT OF THIS TRIAL. IT'S ALSO YOUR DUTY
3 NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE IS FINALLY
4 SUBMITTED TO YOU.
5 LET'S TAKE A BREAK. I HAVE SOME THINGS TO TALK TO THE
6 ATTORNEYS. LET'S TAKE A BREAK UNTIL TEN O'CLOCK.
7 (JURY LEAVES THE COURTROOM.)
8 THE COURT: YOU MAY BE SEATED. THE RECORD WILL
9 REFLECT THAT THE JURY HAS LEFT. DO YOU HAVE DR. FEHLAUER
10 THAT'S NEXT?
11 MS. BARLOW: YES.
12 THE COURT: IS THAT THE LAST REBUTTAL WITNESS?
13 MR. WILSON: IT IS.
14 THE COURT: IS THERE GOING TO BE ANY SURREBUTTAL?
15 MR. STIRBA: YES. ONE WITNESS, DR. ROTHFEDER.
16 MR. WILSON: MAY WE HAVE A PROFFER ON THAT?
17 MR. STIRBA: OKAY. I'LL GET OUT MY NOTES, YOUR
18 HONOR. AND THIS IS WITHOUT FEHLAUER'S TESTIMONY. HE'S
19 GOING TO BASICALLY TESTIFY THAT THE PNEUMONIA IN ELLEN
20 ANDERSON PREEXISTED, BY DEFINITION, HER ADMISSION TO THE
21 HOSPITAL. IT DIDN'T DEVELOP OVER A PERIOD OF 12 HOURS.
22 HE'S GOING TO TESTIFY IN TERMS OF -- WELL, THAT HASN'T
23 BEEN ADDRESSED. HE'LL TESTIFY ABOUT THE CHEYNE-STOKES
24 BREATHING PATTERN AND THAT IT IS CONSISTENT WITH THE DYING
25 PROCESS. AND, ONCE AGAIN, SOME OF THESE I CAN'T SQUARE ALL
4205
1 IN MY MIND. I THINK FEHLAUER MAY TESTIFY TO SOME OTHER
2 THINGS, BUT THOSE ARE THE TWO THINGS I THINK, OR THREE
3 THINGS RIGHT NOW, BASED ON WHAT DR. HARE TESTIFIED TO AND
4 DR. CROOKSTON.
5 THE COURT: I HAVE TWO, PNEUMONIA PREEXISTING AND
6 CHEYNE-STOKES. WHAT'S THE THIRD ONE?
7 MR. STIRBA: I THINK FEHLAUER IS GOING TO ADDRESS
8 UNTREATED PNEUMONIA.
9 THE COURT: THAT'S ONE OF THE THINGS.
10 MR. STIRBA: HE'S GOING TO ADDRESS THAT. HE'S
11 GOING TO ADDRESS -- I BELIEVE FEHLAUER WAS GOING TO SAY
12 SOMETHING ABOUT LYMPHOMA MYCOSIS. WHATEVER I'M GOING TO ASK
13 HIM JUST BASICALLY WAS IN THAT REGARD WITH RESPECT TO HIS
14 OPINION.
15 I THINK THE COURT HAS RULED OUT ANYTHING FURTHER ON
16 MARY CRANE SO I'M GOING --HE'S NOT GOING TO SAY ANYTHING
17 ABOUT THAT. SO I HAVE THOSE POINTS, YOUR HONOR, IS WHAT
18 HE'S GOING TO ADDRESS. I THINK FOUR OR FIVE.
19 THE COURT: OKAY. ANY RESPONSE TO THAT?
20 MR. WILSON: YOUR HONOR, MAYBE WE COULD HAVE A FEW
21 MINUTES. I NEED TO TALK WITH MR. MAJORS.
22 MR. MAJOR: I THINK WE'LL BE ABLE TO RESPOND TO
23 DR. FEHLAUER AFTER WE HAVE THE TIME TO DISCUSS THIS.
24 THE COURT: OKAY. THEN AFTER THAT WOULD THAT BE
25 ALL OF THE WITNESSES?
4206
1 MR. WILSON: I THINK SO, YOUR HONOR.
2 THE COURT: OKAY. WE WOULD THEN RELEASE THE JURY.
3 WHAT DO YOU ANTICIPATE IN TERMS OF -- WE'LL TALK ABOUT JURY
4 INSTRUCTIONS LATER TODAY, BUT WHAT DO YOU ANTICIPATE IN
5 TERMS OF LENGTH OF CLOSING ARGUMENTS JUST SO WE CAN KIND OF
6 FIGURE OUT OUR TIME?
7 MR. WILSON: I REALLY HAVEN'T HAD AN OPPORTUNITY
8 TO -- MAYBE I CAN RESPOND TO IT A LITTLE BIT LATER TODAY,
9 YOUR HONOR.
10 THE COURT: WELL, I PLAN ON JUST HAVING THE JURY
11 COME BACK AT 8:30 ON MONDAY. WHEN THEY COME BACK I'LL READ
12 THE JURY INSTRUCTIONS AND THEY WILL TAKE PROBABLY AN HOUR.
13 THERE'S SIXTY OF THEM AND SOME OF THEM MULTIPLE PAGES, SO
14 THAT MAY TAKE AN HOUR, OR WHATEVER TIME IT IS. BUT LET'S
15 JUST GET SOME SORT OF AMOUNT THAT YOU CAN GIVE ME BY THE END
16 OF THE DAY. WE'LL SEE YOU AT TEN O'CLOCK.
17 (COURT IN RECESS).
18 (TEN O'CLOCK JURY COMES BACK.)
19 THE COURT: PLEASE BE SEATED. THE RECORD WILL
20 REFLECT THAT THE JURY HAS RETURNED. WOULD YOU LIKE TO CALL
21 THE NEXT WITNESS.
22 MS. BARLOW: WE'LL CALL DR. FEHLAUER.
23 CHARLES STEVEN FEHLAUER,
24 CALLED AS A WITNESS, BEING FIRST DULY SWORN, WAS
25 EXAMINED AND TESTIFIED AS FOLLOWS:
4207
1 DIRECT EXAMINATION
2 BY MS. BARLOW:
3 Q. WILL YOU PLEASE STATE YOUR NAME AGAIN FOR THE RECORD?
4 A. CHARLES STEVEN FEHLAUER.
5 Q. DR. FEHLAUER, YOU'VE PREVIOUSLY TESTIFIED IN THIS
6 MATTER?
7 A. YES, I HAVE.
8 Q. I'LL REMIND YOU ARE STILL UNDER OATH. HAVE YOU HAD
9 OCCASION TO REVIEW A CHEST X-RAY TAKEN ON NOVEMBER 18, 1995
10 OF ELLEN ANDERSON?
11 A. I HAVE.
12 Q. AND HAVE YOU REVIEWED THE AUTOPSY OF ELLEN ANDERSON?
13 A. I HAVE.
14 Q. DID YOU SEE ANY PNEUMONIA IN THE CHEST X-RAY TAKEN IN
15 NOVEMBER OF 1995?
16 A. THERE WAS AN OPACITY IN THE RIGHT CHEST WHICH COULD HAVE
17 BEEN FLUID OR AN INFILTRATED PROCESS LIKE PNEUMONIA.
18 Q. WAS THERE ANYTHING ON THE AUTOPSY ABOUT THE RIGHT CHEST,
19 THE LUNG IN THE RIGHT CHEST?
20 A. THERE WAS NO FINDING OF ACUTE PNEUMONIA IN THE RIGHT
21 CHEST.
22 Q. WERE THERE ANY FINDINGS OF ACUTE PNEUMONIA AT ALL?
23 A. YES, IN THE LEFT LUNG.
24 Q. WAS THERE ANYTHING DENOTING AN AUTOPSY -- AT AUTOPSY WAS
25 THERE ANYTHING SHOWING PNEUMONIA ON THE RIGHT SIDE?
4208
1 A. THERE WAS NO ACUTE PNEUMONIA ON THE RIGHT SIDE.
2 Q. ALSO WITH MRS. ANDERSON HAVE YOU HAD OCCASION TO LOOK AT
3 HER NURSING HOME RECORDS?
4 A. I HAVE.
5 Q. SHE EVIDENTLY HAD KYPHOSIS. AM I PRONOUNCING THAT
6 CORRECTLY?
7 A. YES.
8 Q. AND WHAT IS THAT?
9 A. KYPHOSIS IS A SHAPE TO THE BACK WHERE A SPINE IS
10 NORMALLY RELATIVELY STRAIGHT, INSTEAD OF BEING RELATIVELY
11 STRAIGHT IT IS BENT SORT OF LIKE A COMMA. IT'S SOMETIMES
12 CALLED A DOWAGER'S HUMP.
13 Q. LOOKING AT HER RECORD, WAS SHE CAPABLE OF COMPLAINING OF
14 PAIN?
15 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. I
16 BELIEVE THAT'S ALREADY BEEN RULED ON.
17 MS. BARLOW: YOUR HONOR, I BELIEVE THAT I WAS
18 ALLOWED TO GET INTO THAT PART.
19 THE COURT: YEAH. OVERRULED.
20 Q. (BY MS. BARLOW) WAS SHE CAPABLE OF COMPLAINING OF PAIN
21 WHEN SHE LEFT THE NURSING HOME?
22 A. THE DISCHARGE SUMMARY FROM THE NURSING HOME INDICATES
23 THAT THE PATIENT WAS ABLE TO SPEAK, ABLE TO UNDERSTAND
24 SPEECH, YES.
25 Q. DR. HERBST TESTIFIED FROM A CHART REGARDING SIGNS OF
4209
1 DYING. HAVE YOU HAD OCCASION TO REVIEW THAT TESTIMONY?
2 A. I HAVE.
3 Q. I'LL GO THROUGH THESE. THE FIRST SIGN I BELIEVE WAS
4 SLEEPING. IS THIS A SIGN OF DYING?
5 A. YES. SLEEPING CAN BE A SIGN OF DYING, YES.
6 Q. WHAT'S THE DIFFERENCE BETWEEN SLEEPING AS A SIGN OF
7 DYING AND SLEEPING AS JUST SLEEPING?
8 A. ANYONE WHO'S SLEEPING CAN BE AWAKENED. I MEAN, IF YOU
9 CALL OUT AND SOMEONE'S SLEEPING IT MEANS THEY CAN BE
10 AWAKENED. IT DOESN'T MEAN THAT SLEEP IS LEADING TO THEIR
11 DEATH. IT JUST MEANS THAT THEY CAN BE AWAKENED. SLEEPING
12 MORE THAN USUAL CAN BE A SIGN THAT A PATIENT IS DYING OR
13 INTOXICATED WITH MEDICATIONS OR ILL, BUT IT CERTAINLY
14 DOESN'T MEAN THAT IF YOU ARE SLEEPING YOU ARE GOING TO DIE.
15 Q. INCONTINENCE IS ALSO LISTED AS A SIGN OF DYING. IS
16 THAT -- IS THAT THE ONLY THING IT CAN LEAD TO?
17 A. NO. OBVIOUSLY PEOPLE CAN BE INCONTINENT AND NOT BE IN
18 THE PROCESS OF DYING.
19 Q. RESTLESSNESS WAS LISTED AS A SIGN OF DYING. IS THAT THE
20 ONLY THING THAT RESTLESSNESS COMES FROM?
21 A. NO.
22 Q. THERE'S ALSO TALK OF CONGESTION AND INABILITY TO CLEAR
23 SECRETIONS FROM THE THROAT. CAN OTHER THINGS OTHER THAN
24 DYING CAUSE THAT?
25 A. YES.
4210
1 Q. WHAT?
2 A. WELL, YOU CAN HAVE AN INABILITY TO CLEAR SECRETIONS
3 BECAUSE THE SWALLOWING REFLEX HAS BEEN IMPAIRED. THE
4 MATERIAL GETS CAUGHT IN THE THROAT AND YOU NEED TO COUGH AND
5 CLEAR IT OUT. YOU CAN BE CONGESTED AND HAVE A RATTLING IN
6 YOUR THROAT IF YOU HAVE A BAD COLD OR BRONCHITIS.
7 Q. COOLNESS IS ALSO INDICATED AS A SIGN OF DYING. CAN
8 ANYTHING ELSE CAUSE COOLNESS, A COOLING OF THE SKIN?
9 A. WELL, CERTAINLY IF SOMEONE IS CHILLED AND THEIR BODY IS
10 TRYING TO CONSERVE HEAT, THEIR EXTREMITIES WILL BE COOL. IF
11 YOU ARE NERVOUS YOUR EXTREMITIES CAN BE COOL.
12 Q. AND TERMINAL FEVER AS A SIGN OF DYING. WHAT'S TERMINAL
13 FEVER?
14 A. I GUESS, AS DR. HERBST INTENDED TO USE IT, IT'S A FEVER
15 WHICH OCCURS IN THE PRESENCE OF A TERMINAL EVENT. BUT
16 PEOPLE HAVE FEVER. THAT DOESN'T MEAN THAT THEY ARE
17 TERMINALLY ILL.
18 Q. CONFUSION. CAN SOMETHING OTHER THAN DEATH CAUSE
19 CONFUSION?
20 A. YES.
21 Q. WHAT ELSE?
22 A. WELL, EXTERNALLY, THE PRESENCE OF DEMENTIA LIKE THESE
23 PATIENTS SUFFERED FROM, BUT IT DOESN'T MEAN THAT DEATH IS
24 OCCURRING THEN.
25 Q. THERE WAS SOME TESTIMONY TOO OF --
4211
1 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT TO THE
2 FORM OF THE QUESTION.
3 THE COURT: OKAY. JUST ASK A QUESTION.
4 MS. BARLOW: I'LL REPHRASE IT. THANK YOU, YOUR
5 HONOR.
6 Q. (BY MS. BARLOW) WHAT ROLE DO THE KIDNEYS PLAY IN THE
7 ADMINISTRATION OF MEDICATION?
8 A. WELL, THE KIDNEYS PLAY THE ROLE OF REMOVING THE MATERIAL
9 FROM THE BODY AFTER IT'S BEEN ADMINISTERED.
10 Q. SPECIFICALLY THE DRUGS WE'VE BE TALKING ABOUT HERE,
11 MORPHINE AND THE PSYCHOTROPIC DRUGS, DO THE KIDNEYS PLAY A
12 ROLE?
13 A. YES.
14 Q. AND THE ROLE IS?
15 A. THE ROLE IS TO EXCRETE THE DRUG ITSELF, OR THE METABOLIC
16 BY-PRODUCTS OF THE DRUG THAT HAVE BEEN SECRETED BY THE
17 METABOLISM IN THE BODY.
18 Q. WHAT EFFECT WOULD KIDNEY FAILURE OR KIDNEY
19 MALFUNCTIONING HAVE ON THE EXCRETION OF THESE MEDICATIONS
20 FROM THE BODY?
21 A. WELL, IF THE KIDNEY IS NOT FUNCTIONING TO ITS FULL
22 CAPACITY THEN THE DRUGS WHICH ARE ELIMINATED FROM THE BODY
23 BY THE KIDNEYS, OR ITS METABOLITES THAT ARE ELIMINATED,
24 WOULD BE REDUCED SO THAT THE AMOUNT OF DRUG CLEARED IN ANY
25 GIVEN PERIOD OF TIME WOULD BE REDUCED. SO THE HALF LIFE OF
4212
1 DRUGS COULD BE PROLONGED, THE DURATION OF EFFECT COULD BE
2 PROLONGED.
3 Q. HAVE YOU HAD OCCASION TO LOOK AT THE KIDNEY FUNCTION OF
4 THESE FIVE PATIENTS AS INDICATED IN THE RECORDS?
5 A. YES, I HAVE.
6 Q. AND HAVE YOU FOUND ANY -- WELL, HAVE YOU FOUND ANYTHING
7 THAT IS COMMON TO ALL OF THEM?
8 A. YEAH. ALL OF THE PATIENTS, BY CALCULATING THEIR KIDNEY
9 FUNCTION USING A STANDARD INSTRUMENT CALLED THE COCKCROFT
10 GAULT EQUATION, WHICH TAKES INTO ACCOUNT A PATIENT'S AGE AND
11 BODY WEIGHT AND THEIR KIDNEY FUNCTION. I FOUND THAT ALL OF
12 THEM SUFFERED A REDUCTION IN THEIR KIDNEY FUNCTION TO AT
13 LEAST A LEVEL OF LESS THAN 50 PERCENT OR HALF OF NORMAL.
14 Q. WHAT WOULD THAT DO FOR THE CLEARANCE OF THE DRUG THAT
15 THEY WERE GIVEN?
16 A. PROBABLY PROLONG THE HALF LIFE AND REDUCE THE CLEARANCE.
17 Q. THE RECORD SHOWS SOME TWITCHING OCCURRING IN SOME OF
18 THESE PATIENTS. WHAT CAN CAUSE TWITCHING?
19 A. WELL, TWITCHING COULD -- WOULD INDICATE A CONTRACTION OF
20 MUSCLES. AND A CONTRACTION OF MUSCLES CAN OCCUR IN THE
21 PRESENCE OF ELECTROLYTE ABNORMALITIES.
22 Q. THAT'S A BLOOD PROBLEM?
23 A. YES. IF THE BLOOD POTASSIUM WAS ABNORMAL, FOR EXAMPLE,
24 YOU CAN HAVE SOME TWITCHING FROM THAT LOW BLOOD CALCIUM. IN
25 ADDITION, PEOPLE WITH DEMENTIA, PARTICULARLY PEOPLE WITH END
4213
1 STAGE DEMENTIA, ABOUT 10 PERCENT HAVE SOME FORM OF SEIZURE
2 DISORDER. THERE'S MINOR SEIZURES LIKE MYOCLONUS WHERE A
3 SINGLE MUSCLE WILL CONTRACT AND JERK. I SEE THAT QUITE
4 OFTEN. MUSCLES CAN BE JERKING AND CONTRACTING SEVERAL TIMES
5 A MINUTE ALL OVER THE BODY. THE PATIENT NEVER LOSES
6 CONSCIOUSNESS. IT'S NOT A FULL-BLOWN SEIZURE LIKE WE THINK
7 OF. THEN THERE ARE PARTIAL MOTOR SEIZURES WHERE A LIMB OR A
8 PART OF THE BODY IS JERKING, BUT IT DOESN'T GENERALIZE INTO
9 A FULL MOTOR SEIZURE.
10 Q. IS THERE ANY INDICATION OF PAIN CONNECTED WITH THAT?
11 A. I SUPPOSE THE JERKING COULD BE A SIGN OF PAIN, BUT IT'S
12 NOT THE ONLY THING THAT IT'S A SIGN OF.
13 Q. I BELIEVE MRS. SMITH, ON ADMISSION, THERE WAS AN
14 INDICATION OF 25 PERCENT WEIGHT LOSS WITHIN THE LAST YEAR, I
15 BELIEVE IT WAS. CAN DYING CAUSE WEIGHT LOSS?
16 A. WOULD YOU REPHRASE THAT QUESTION.
17 Q. WELL, WHAT CAUSES WEIGHT LOSS IN THE ELDERLY?
18 A. WELL, THE MOST COMMON REASON THAT A PERSON WOULD LOSE
19 WEIGHT IS THAT THEY DON'T TAKE ENOUGH FOOD IN. AND IN FACT,
20 UNLESS THERE'S A METABOLIC PROCESS THAT CAUSES THE BODY TO
21 BURN MORE CALORIES, THE ONLY REASON PEOPLE LOSE WEIGHT IS
22 BECAUSE THEY DON'T TAKE ENOUGH FOOD IN.
23 Q. AND IS THAT COMMON IN THE ELDERLY?
24 A. UNFORTUNATELY, YES.
25 Q. AND WHAT KINDS OF THINGS CAUSE THEM TO NOT TAKE ENOUGH
4214
1 FOOD IN?
2 A. WELL, WE COULD START AT THE MOUTH AND SAY THAT IF YOUR
3 TEETH ARE IN POOR CONDITION THAT'S A GOOD REASON. PEOPLE
4 WHO LIVE ON A BUDGET MAY NOT BE ABLE TO AFFORD FOOD. PEOPLE
5 IN NURSING FACILITIES GENERALLY HAVE ACCESS TO FOOD AND
6 PEOPLE WHO ARE ATTEMPTING TO FEED THEM. THEY MAY HAVE
7 REDUCED ABILITY TO CHEW AND SWALLOW AT THE NORMAL RATE AND
8 IT'S HARD TO PUT ENOUGH FOOD DOWN THEM IN A TIMELY FASHION.
9 THEY MAY HAVE ANXIETY OR AGITATION OR RESISTANCE TO
10 EATING AND NOT SIT STILL FOR A MEAL OR REFUSE TO EAT. THEY
11 MAY HAVE MALABSORPTION PROBLEMS. THEIR INTESTINES MAY NOT
12 FUNCTION NORMALLY AND ONCE THE FOOD IS IN IT MAY NOT BE
13 ADEQUATELY ABSORBED AND THEREFORE THE NUTRIENTS ARE LOST
14 BEFORE THEY ARE MADE USE OF. CANCERS ARE ASSOCIATED WITH
15 WEIGHT LOSS. IT ALMOST ALWAYS IS AN EFFECT OF LOSS OF
16 APPETITE. THERE ARE RARE CASES WHERE THE TUMOR CONSUMES
17 ENOUGH CALORIES TO CAUSE SOMEONE TO LOSE WEIGHT EVEN WHEN
18 THEY WERE EATING ADEQUATELY.
19 Q. THAT BRINGS US TO THE MYCOSIS FUNGOIDES THAT MR.
20 ALLDREDGE HAD. DID YOU REVIEW THE RECORDS ABOUT HIS MYCOSIS
21 FUNGOIDES?
22 A. YES. TO THE EXTENT THAT I HAD RECORDS, I DID.
23 Q. AND WHAT RECORDS DID YOU HAVE?
24 A. WELL, THE RECORDS THAT WERE PROVIDED TO ME INCLUDED
25 OFFICE VISITS FROM HIS PRIMARY PHYSICIAN UP TO APRIL OF
4215
1 1995.
2 Q. NOW, THIS HAS BEEN TERMED A LYMPHOMA; IS THAT CORRECT?
3 A. YES. IT'S A CUTANEOUS T CELL LYMPHOMA, WHICH MEANS A
4 CANCER OF THE SKIN INVOLVING LYMPHOCYTES OR CELLS THAT ARE
5 INVOLVED IN THE IMMUNE PROCESS.
6 Q. IS THAT A TERMINAL CONDITION FOR MR. ALLDREDGE WHEN HE
7 ENTERED THE HOSPITAL?
8 A. WELL, REVIEWING THE RECORDS, IT SAID THAT HE HAD A
9 HISTORY OF THIS AND THAT HE HAD RECEIVED TOTAL BODY
10 IRRADIATION. AND THIS IS A TUMOR THAT WHEN IT'S PRESENT CAN
11 BE OBSERVED ON THE SKIN. OR IF IT HAS REACHED A HIGHER
12 STAGE, A GREATER STAGE, IT RESULTS IN LYMPH NODE
13 ENLARGEMENT. AND WHEN I LOOKED AT THE NOTE FROM HIS PRIMARY
14 PHYSICIAN AND DR. DIENHART, I DIDN'T SEE ANY EVIDENCE THAT
15 THE SKIN WAS INVOLVED. NO ONE MADE MENTION OF TUMOR IN HIS
16 SKIN. AND WHEN I REVIEWED THE AUTOPSY RESULTS THERE WAS NO
17 EVIDENCE OF LYMPH NODE INVOLVEMENT. SO I WOULD HAVE SAID
18 THAT HE WAS A STAGE ONE TUMOR AND THAT HIS DISEASE WAS
19 INACTIVE AT THE TIME THAT HE WAS EVALUATED, BASED ON THE
20 RECORDS I'VE SEEN.
21 Q. OKAY. DID YOU SEE ANY INDICATION IN THE RECORDS OF
22 THESE INDIVIDUALS OF DEHYDRATION?
23 A. YES.
24 Q. IS DEHYDRATION A PAINFUL CONDITION?
25 A. IF SOMEONE IS THIRSTY AND DEHYDRATED AND UNABLE TO
4216
1 CONVEY THAT THEY ARE THIRSTY, IT'S UNCOMFORTABLE, YEAH. THE
2 SENSATION OF THIRST IS ONE OF THE STRONGEST DRIVES A PERSON
3 CAN HAVE.
4 Q. WHAT ABOUT NEAR DEATH?
5 A. AS YOU BECOME MORE DEHYDRATED THE URGE TO REQUEST FLUIDS
6 IS DIMINISHED, HAS BEEN MY OBSERVATION. AND THE SENSATION
7 OF NEED FOR THIRST APPEARS DIMINISHED. AND THIS RELATES TO
8 THE FACT THAT AS THE KIDNEYS FAIL THE TOXINS WHICH THE
9 KIDNEYS ELIMINATE BEGIN TO BUILD UP AND THESE PEOPLE HAVE
10 REDUCED LEVELS OF CONSCIOUSNESS AND REDUCED INTERACTION WITH
11 THEIR ENVIRONMENT. I DON'T FIND THAT PEOPLE WHO ARE
12 SUFFERING FROM TERMINAL DEHYDRATION EXPERIENCE MUCH
13 DISCOMFORT, IF ANY.
14 Q. AND THAT'S BECAUSE OF THE KIDNEY FAILURE?
15 A. YES, THE KIDNEY FAILURE.
16 Q. HAVE YOU LOOKED AT THE RECORDS FOR MARY CRANE?
17 A. I HAVE.
18 Q. WAS SHE AT DEATH'S DOOR WHEN SHE ENTERED THE HOSPITAL?
19 A. THE MOST COMPREHENSIVE NOTES ARE FROM DR. DIENHART. AND
20 DR. DIENHART'S NOTE INDICATES HE HAD QUITE A CONVERSATION
21 WITH HER. HER VITAL SIGNS WERE NORMAL. SHE DIDN'T HAVE A
22 FEVER. HE INDICATED A LIST OF ACTIVE PROBLEMS WHICH HAD
23 BEEN PRE-EXISTING FOR SOMETIME, BUT HE DIDN'T INDICATE IN
24 HIS NOTE THAT SHE APPEARED TO BE AT DEATH'S DOOR. AND THERE
25 IS NOTHING FROM THE MATERIAL THAT I SAW THAT INDICATES THAT
4217
1 SHE WAS AT DEATH'S DOOR.
2 Q. ARE YOU AWARE OF WHAT A CLINICAL CORRELATION WOULD BE
3 FOR ASSESSING A STROKE?
4 A. YES.
5 Q. AND SPECIFICALLY AN OCCIPITAL STROKE?
6 A. YES.
7 Q. WHAT CLINICAL CORRELATION WOULD YOU DO FOR AN OCCIPITAL
8 STROKE?
9 A. OCCIPITAL STROKE IS A STROKE IN THE BACK PART OF THE
10 BRAIN. THE STRUCTURES THAT ARE LOCATED THERE RELATE TO
11 EYESIGHT, ORGANIZATION OF THE VISUAL WORLD. AND SOMEWHAT,
12 IF IT EXTENDS INTO THE LOWER PART OF THE BRAIN, THE ABILITY
13 TO SENSE WHERE YOU ARE IN THE WORLD AND CONTROL MOVEMENTS.
14 THE KIND OF TESTING YOU WOULD DO TO SEE IF SOMEONE HAD
15 AN OCCIPITAL INFARCTION WOULD INVOLVE TRYING TO TEST WHAT
16 THEY CAN SEE AND WHERE THE DEFICITS ARE LOCATED. SO YOU
17 WOULD TRY AND HAVE SOMEONE TELL YOU IF THEY CAN SEE YOUR
18 FINGER HERE AND SEE YOUR FINGER HERE AND HERE AND HERE. AND
19 IF THEY CAN'T COMMUNICATE, YOU CAN EXAMINE THEM BY
20 CONFRONTATION. YOU CAN GET IN FRONT OF THEM SO YOU KNOW
21 WHAT THEY ARE LOOKING AT AND THEN YOU CAN USE A PEN OR OTHER
22 OBJECT TO TRY AND MAKE THEM FLINCH AS YOU BRING IT IN
23 TOWARDS THEIR EYES. IT'S A VERY PRIMITIVE REFLEX THAT IF
24 YOUR BRAIN SENSES SOMETHING IS COMING TOWARDS YOUR EYE, YOU
25 TRY AND BLINK OR MOVE AWAY FROM IT. SO THAT WOULD BE HOW I
4218
1 WOULD TEST FOR OCCIPITAL INFARCTION.
2 Q. DID YOU SEE ANY CLINICAL CORRELATION REGARDING THE
3 POSSIBLE STROKE WITH ENNIS ALLDREDGE?
4 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT. I
5 THINK THIS WAS A SUBJECT OF A PREVIOUS RULING.
6 THE COURT: SUSTAINED.
7 Q. (BY MS. BARLOW) ARE YOU FAMILIAR WITH THE NATIONAL
8 HOSPICE ORGANIZATION?
9 A. YES.
10 Q. AND THEIR MANUAL?
11 A. YES.
12 Q. ARE YOU FAMILIAR WITH THE F.A.S. SCALE?
13 A. YES.
14 Q. AND WHAT IS THE F.A.S. SCALE JUST BRIEFLY?
15 A. FUNCTIONAL ASSESSMENT SCALE. IT'S A SCALE THAT HAS BEEN
16 DEVELOPED TO ATTEMPT TO PLACE THE AMOUNT OF DISABILITY A
17 PERSON WITH DEMENTIA IS SUFFERING FROM ON A CONTINUUM OR A
18 LINE THAT HELPS YOU TO UNDERSTAND WHERE THEY ARE IN THE
19 COURSE OF THEIR DISEASE.
20 Q. AND ARE THERE CERTAIN THINGS YOU LOOK AT TO MAKE A SCORE
21 FOR PEOPLE?
22 A. YES, THERE ARE.
23 Q. AND WHEN YOU ARE SCORING PEOPLE, IS THERE ANY GUIDELINE
24 ABOUT HOW TO SCORE?
25 A. YES. YOU REALLY SHOULD SCORE IT AT THEIR HIGHEST LEVEL
4219
1 OF FUNCTION.
2 Q. IS THERE ANY ONE THING THAT YOU LOOK AT AS KIND OF A
3 BASIS FOR SAYING A PERSON MEETS THE CRITERIA FOR HOSPICE
4 CARE?
5 A. WELL, THE HOSPICE MANUAL THAT LISTS THE CRITERIA TO USE
6 TO IDENTIFY PEOPLE WHO ARE CANDIDATES FOR HOSPICE MAKE IT
7 CLEAR THAT THE ONE PREDICTIVE FACTOR OF RELATIVELY LONG LIFE
8 IN SOMEONE WHO'S PROFOUNDLY DEMENTED IS THE ABILITY TO WALK.
9 SO IF THE ABILITY TO WALK IS PRESENT THEN IT'S COMMON FOR
10 THOSE PEOPLE TO LIVE AT LEAST TWO YEARS.
11 Q. DID YOU HAVE OCCASION TO LOOK AT THE RECORDS OF THESE
12 FIVE PATIENTS ABOUT THEIR ABILITY TO WALK?
13 A. I DID.
14 Q. AND WHAT DID YOU FIND?
15 A. I FOUND THAT EXCEPT IN THE CASE OF MRS. LARSEN, AT THE
16 TIME OF TRANSFER FROM THE NURSING HOME, OR WITHIN A WEEK OR
17 SO BEFOREHAND, THE PATIENTS ALL WERE CAPABLE OF SOME
18 AMBULATION; AND SOME OF THEM WERE INDEPENDENT WALKERS.
19 Q. DID YOU HAVE OCCASION TO DETERMINE A F.A.S. SCORE FOR
20 EACH OF THESE INDIVIDUALS PRIOR TO ADMISSION TO THE DAVIS
21 NORTH HOSPITAL?
22 A. I DID.
23 Q. AND WHAT DID YOU BASE THAT ON?
24 A. I BASED THAT ON THE MATERIALS FROM THE NURSING
25 FACILITIES, THE DISCHARGE TRANSFER SUMMARIES AND THE PERIOD
4220
1 JUST PRIOR TO, A WEEK OR SO, LEADING UP TO THEIR TRANSFER.
2 Q. AND DID YOU PREPARE A CHART ABOUT THE F.A.S.?
3 A. I DID.
4 Q. IS THIS THE CHART THAT YOU PREPARED?
5 A. YES, IT IS.
6 Q. STATES EXHIBIT 33. CAN YOU EXPLAIN WHAT THE TOP OF THAT
7 CHART IS?
8 A. THE TOP OF THAT CHART IS DERIVED FROM THE NATIONAL
9 HOSPICE ORGANIZATION MANUAL. AND THE CHART SHOWS THE FAST
10 STAGE HERE WITH THE SUBSTAGES HERE. COMPARING THE MENTAL
11 STATUS EXAMS, THIS BEING A NORMAL SCORE AND THIS BEING AN
12 ABNORMALLY LOW SCORE. AND THEN IT GIVES A TIMEFRAME IN
13 YEARS AS TO ZERO YEARS OF ILLNESS, THIS IS ABOUT WHERE A
14 PERSON SHOULD BE; AND 19 TO 20 YEARS OF ILLNESS THIS IS
15 ABOUT WHERE A PERSON SHOULD BE. TYPICALLY, OBVIOUSLY,
16 EVERYONE HAS A LITTLE DIFFERENT COURSE THAN CAN BE PUT ON A
17 SINGLE CHART.
18 Q. I BELIEVE THERE'S BEEN TESTIMONY THAT SEVERAL OF THESE
19 PEOPLE WERE IN THE SEVEN F.A.S. STAGE; IS THAT CORRECT?
20 MR. STIRBA: YOUR HONOR, I OBJECT TO THE FORM OF
21 THE QUESTION AGAIN.
22 THE COURT: SUSTAINED.
23 Q. (BY MS. BARLOW) LET ME JUST GO STRAIGHT AT THIS, THEN.
24 DID YOU HAVE OCCASION TO DETERMINE A F.A.S. SCORE FOR ENNIS
25 ALLDREDGE?
4221
1 A. I DID.
2 Q. AND WHAT WAS THAT SCORE?
3 A. HIS F.A.S. SCORE IN LATE DECEMBER WAS SIX D.
4 Q. WHAT WAS THAT BASED ON?
5 A. THAT WAS BASED ON HIS BEING AMBULANT AND HAVING URINARY
6 INCONTINENCE, BUT NOT FECAL INCONTINENCE.
7 Q. IS THERE ANY INDICATION, OR HAVE THERE BEEN ANY STUDIES,
8 ABOUT THE SURVIVAL RATE OF PEOPLE BASED ON THEIR F.A.S.
9 SCORE?
10 A. THERE HAVE.
11 Q. AND IS THAT IN THIS HOSPICE MANUAL?
12 A. THEY ARE REFERENCED IN THE HOSPICE MANUAL. THE STUDIES
13 ARE NOT GIVEN IN DETAIL IN THE HOSPICE MANUAL.
14 Q. HAVE YOU READ THOSE STUDIES?
15 A. I REVIEWED SOME STUDIES RELATIVE TO SURVIVAL IN PEOPLE
16 WITH ALZHEIMER'S DISEASE, YES.
17 Q. WITH THE SIX D WHAT IS THE NORMAL SURVIVAL RATE FOR
18 ENNIS ALLDREDGE?
19 A. WELL, THE PATIENT IS STILL AMBULANT, INCONTINENT OF
20 URINE. AVERAGE SURVIVAL WOULD BE AROUND SEVEN TO TEN YEARS.
21 Q. WHAT ABOUT ELLEN ANDERSON, DID YOU HAVE OCCASION TO
22 DETERMINE A F.A.S. SCORE FOR HER?
23 A. I DID.
24 Q. AND WHAT WAS THAT?
25 A. BASED ON THE INFORMATION FROM HER DISCHARGE SUMMARY FROM
4222
1 THE NURSING FACILITY IT WAS SIX E.
2 Q. AND WHAT WAS THAT BASED ON?
3 A. THAT WOULD INDICATE THAT SHE HAD FECAL INCONTINENCE OR
4 NOT ABLE TO CONTROL HER STOOL.
5 Q. AND THE SURVIVAL RATE FOR ELLEN ANDERSON -- WELL,
6 SOMEONE WITH A SIX E?
7 A. IT'S APPROXIMATELY THE SAME, PERHAPS A LITTLE SHORTER.
8 SEVEN YEARS.
9 Q. WHAT ABOUT MARY CRANE? WOULD YOU LOOK AT HER RECORDS?
10 A. I DID.
11 Q. AND DID YOU DETERMINE A F.A.S. SCORE FOR HER?
12 A. YES. IT WAS ALSO SIX E, FECAL INCONTINENCE.
13 Q. AND ABOUT SEVEN YEARS --
14 A. YEAH.
15 Q. -- SURVIVAL RATE. WHAT ABOUT LYDIA SMITH?
16 A. SIX D, URINARY INCONTINENCE.
17 Q. AND SURVIVAL RATE?
18 A. APPROXIMATELY SEVEN YEARS.
19 Q. WHAT ABOUT JUDITH LARSEN?
20 A. JUDITH LARSEN HAD BEEN IN A WHEELCHAIR FOR SOME TIME.
21 SHE SCORED A SEVEN C FOR LOSS OF ABILITY TO STAND AND WALK.
22 Q. AND THE SURVIVAL RATE FOR A SEVEN C?
23 A. SEVEN C COMES IN AT ABOUT FOUR YEARS.
24 Q. AND WE RECOGNIZE THAT OF COURSE THINGS ARE --
25 A. QUITE A LOT OF VARIABILITY.
4223
1 Q. VARIABILITY. BUT THESE HAVE BEEN ACCEPTED AS STANDARD
2 SURVIVAL RATES FOR PEOPLE IN THESE CONDITIONS; IS THAT
3 CORRECT?
4 A. WELL, CERTAINLY IT GIVES YOU A BALLPARK FIGURE FOR WHAT
5 TO ADVISE FAMILIES. THE MOST COMMON REASON A PERSON WITH
6 DEMENTIA IS PLACED IN A NURSING HOME IS BECAUSE THEY BECOME
7 INCONTINENT. IT'S A HARD THING FOR FAMILIES TO MANAGE. AND
8 THE AVERAGE LENGTHS OF STAY THAT A PERSON HAS IN A NURSING
9 HOME AFTER ADMISSION IS ABOUT SEVEN TO TEN YEARS. SO THAT'S
10 WHAT I USE TO ADVISE PEOPLE.
11 Q. BASED ON YOUR REVIEW OF THE NURSING HOME RECORDS AND THE
12 DAVIS HOSPITAL RECORDS FOR THESE FIVE INDIVIDUALS, WERE THEY
13 WITHIN SIX MONTHS OF DYING BASED ON THE F.A.S. SCORE?
14 A. BASED ON THE F.A.S. SCORE, FROM MY REVIEW OF THEIR
15 ILLNESS UP TO THE TIME OF ADMISSION, I WOULD SAY I DON'T
16 THINK SO.
17 MS. BARLOW: IF I MAY HAVE JUST A MOMENT, YOUR
18 HONOR?
19 THE COURT: OKAY.
20 MS. BARLOW: THAT'S ALL I HAVE, YOUR HONOR.
21 CROSS-EXAMINATION
22 BY MR. STIRBA:
23 Q. DOCTOR, ONE OF THE REASONS WHY YOU SAY YOU DON'T THINK
24 SO IS BECAUSE YOU HAVE TO EQUIVOCATE ON YOUR OPINION WITH
25 RESPECT TO WHETHER OR NOT THEY WERE GOING TO LIVE ANOTHER
4224
1 SIX MONTHS IF YOU MERELY FOCUS ON THE F.A.S. SCORE; IS THAT
2 RIGHT?
3 A. THAT'S CORRECT.
4 Q. AND IT'S TRUE, IS IT NOT, AS YOU LOOK AT THIS, THIS IS
5 REALLY A FUNCTIONAL ASSESSMENT OF SOMEBODY WHO ESSENTIALLY
6 HAS ALZHEIMER'S DISEASE OR DEMENTIA, TRUE?
7 A. OR STROKE DEMENTIA, TRUE.
8 Q. IT'S NOT ATTEMPTING TO QUANTIFY, FOR EXAMPLE, IF YOU
9 HAVE ALZHEIMER'S DISEASE OR DEMENTIA AND YOU HAVE CORONARY
10 ARTERY DISEASE, IS IT?
11 A. NO.
12 Q. AND IT'S NOT ATTEMPTING TO QUANTIFY IF YOU HAVE
13 ALZHEIMER'S DISEASE, CORONARY ARTERY DISEASE AND
14 CEREBROVASCULAR DISEASE, IS IT?
15 A. NO.
16 Q. AND YOU KNOW CERTAINLY AS A GERIATRICIAN THAT MANY FOLKS
17 WHO ARE ELDERLY, ESPECIALLY THOSE WHO ARE DEMENTED, AND WHO
18 SUSTAIN HIM FRACTURES, IT'S A MARKER. IT'S A SIGN OF
19 DETERIORATION THAT TYPICALLY FOLLOWS WHEN THAT FRACTURE
20 OCCURS; ISN'T THAT TRUE?
21 A. YES.
22 Q. IN FACT, THERE HAVE BEEN STUDIES DONE, HAVE THERE NOT,
23 THAT APPROXIMATELY 50 TO 80 PERCENT OF PEOPLE WHO IN THE
24 GERIATRIC POPULATION WHO ARE DEMENTED AND THEN SUSTAIN A HIP
25 FRACTURE WILL BE TERMINAL WITHIN ONE YEAR; ISN'T THAT TRUE?
4225
1 A. YES.
2 Q. SO THIS REALLY IS A USEFUL GUIDE, BUT IT DOESN'T TAKE
3 INTO CONSIDERATION OTHER CO-MORBID DISEASE PROCESSES; ISN'T
4 THAT TRUE?
5 A. THAT'S CORRECT.
6 Q. AND IN FACT THE HOSPICE GUIDELINES WHICH YOU ARE
7 FAMILIAR WITH USE THIS PARTICULAR F.A.S. EVALUATION, BUT
8 THEY ALSO CONSIDER OTHER AREAS OF THE DISEASE PROCESS TO
9 COME UP ESSENTIALLY WITH THEIR GUIDELINES; ISN'T THAT TRUE?
10 A. THAT'S CORRECT.
11 Q. FOR EXAMPLE, THEY WOULD CONSIDER WHETHER SOMEBODY HAS
12 CORONARY ARTERY DISEASE, CORRECT?
13 A. YES.
14 Q. AND THEY WOULD CONSIDER WHETHER OR NOT SOMEBODY HAS HAD
15 A FRACTURED HIP, TRUE?
16 A. YES.
17 Q. AND THEY WOULD CONSIDER WHETHER OR NOT SOMEBODY HAD C.V.
18 DISEASE AND JUST HAS HAD A STROKE, CORRECT?
19 A. YES.
20 Q. THOSE ARE ALL SIGNIFICANT FINDINGS THAT YOU HAVE TO TAKE
21 INTO CONSIDERATION AS A GERIATRICIAN WHEN YOU ARE GOING TO
22 APPLY THOSE GUIDELINES; ISN'T THAT TRUE?
23 A. THAT'S TRUE.
24 Q. NOW, IT'S TRUE, IS IT NOT, DOCTOR, THAT I GUESS THE
25 HOSPITAL RECORDS ARE GOING TO BE THE BEST EVIDENCE FOR
4226
1 WHETHER OR NOT SOMEBODY WAS AMBULATORY ON ADMISSION; IS THAT
2 CORRECT?
3 A. BASED ON MY REVIEW I WOULD SAY THAT I HAVE SOME
4 RESERVATIONS ABOUT THAT.
5 Q. FOR EXAMPLE, YOU TESTIFIED THAT THE ONLY PERSON YOU
6 THOUGHT WAS NOT AMBULATORY ON ADMISSION WAS JUDITH LARSEN.
7 DIDN'T YOU JUST SAY THAT?
8 A. I DID.
9 Q. AND IT'S TRUE, IS IT NOT, THAT IF YOU LOOK AT THE
10 ADMISSION EVALUATION FOR MARY CRANE DONE ON HER ADMISSION,
11 THERE'S A LITTLE CHECK MARK UNDER AMBULATORY AND IT SAYS NO.
12 DO YOU REMEMBER SEEING THAT?
13 A. I DO.
14 Q. AND IT'S TRUE THAT THAT WAS DONE BY THE INTAKE EVALUATOR
15 AS HE EVALUATED HER CONDITION; IS THAT CORRECT?
16 A. THAT'S CORRECT.
17 Q. SIMILARLY IT'S TRUE, IS IT NOT, THAT THE HOSPITAL
18 RECORDS WOULD REALLY BE THE BEST EVIDENCE AS TO WHETHER OR
19 NOT ELLEN ANDERSON COULD COMPLAIN OF PAIN; ISN'T THAT TRUE?
20 A. NO. I HAVE SOME DOUBTS ABOUT THAT.
21 Q. IT'S TRUE, IS IT NOT, THAT ELLEN ANDERSON ON ADMISSION
22 COULD NOT AND WAS UNABLE TO COMPLAIN OF PAIN; ISN'T THAT
23 CORRECT?
24 A. NO, THAT'S NOT CORRECT.
25 Q. IN FACT, ISN'T IT TRUE THAT -- AND YOU JUST REVIEWED THE
4227
1 RECORDS; ISN'T THAT RIGHT?
2 A. YES.
3 Q. YOU WEREN'T THERE AT THE TIME DOING A CLINICAL
4 ASSESSMENT, WERE YOU?
5 A. NO.
6 Q. YOU HAVEN'T TALKED TO THE FAMILY, HAVE YOU?
7 A. NO.
8 Q. YOU CERTAINLY DIDN'T TREAT ELLEN ANDERSON BACK IN 1995,
9 DID YOU?
10 A. NO.
11 Q. CERTAINLY WEREN'T THERE TALKING TO HER TO FIND OUT
12 WHETHER OR NOT SHE COULD COMMUNICATE WITH YOU, WERE YOU?
13 A. NO.
14 Q. AND IN FACT, IT'S TRUE, IS IT NOT, THAT THAT VERY
15 QUESTION WAS ASKED IN HER NURSING ASSESSMENT FORM, WHERE
16 THERE IS A PAIN SCALE ONE TO FIVE, AND IT SAYS RATE YOUR
17 PAIN, AND THE NURSE WROTE UNABLE; ISN'T THAT TRUE?
18 A. YES, THAT'S TRUE.
19 Q. AND IT'S TRUE, IS IT NOT, THERE ARE OTHER AREAS IN THAT
20 NURSING ASSESSMENT FORM -- FOR EXAMPLE, THE QUESTION WAS
21 ASKED WHAT DO YOU LIKE ABOUT YOURSELF. IT SAYS PATIENT
22 UNABLE TO RESPOND?
23 A. THAT'S TRUE.
24 Q. WHAT WOULD YOU LIKE TO CHANGE? PATIENT UNABLE TO
25 RESPOND. AWARENESS OF SELF AND ACCEPTANCE OF PROBLEMS.
4228
1 ANSWER, NO. EXPLAIN. EXTREMELY AGITATED, UNABLE TO
2 RESPOND. ARE YOU TELLING THIS JURY THAT BASED UPON JUST
3 REVIEWING THE RECORDS --
4 MS. BARLOW: YOUR HONOR, THIS IS ARGUMENTATIVE.
5 THE COURT: LET HIM FINISH THE QUESTION.
6 Q. (BY MR. STIRBA) ARE YOU TELLING THIS JURY, JUST BASED
7 UPON YOUR REVIEW OF THE RECORDS AND WHAT I JUST READ YOU,
8 THAT ELLEN ANDERSON WAS CAPABLE OF RESPONDING TO THOSE
9 QUESTIONS AND TELLING SOMEBODY IN THAT HOSPITAL WHETHER OR
10 NOT SHE WAS IN PAIN?
11 MS. BARLOW: OBJECTION. ARGUMENTATIVE.
12 THE COURT: OVERRULED.
13 THE WITNESS: BASED ON THE HOSPITAL RECORDS, I
14 CAN'T SAY THAT SHE COULD.
15 Q. (BY MR. STIRBA) NOW, YOU ALSO REVIEWED ANOTHER RECORD
16 AND THAT'S THIS X-RAY REPORT CONCERNING THE X-RAY THAT WAS
17 DONE IN NOVEMBER OF 1995 WHICH APPARENTLY WAS ORDERED BY DR.
18 KELLER OR DR. WILD. REMEMBER SEEING THAT?
19 A. YES.
20 Q. AND IT IS TRUE, IS IT NOT, THAT WHAT THAT REPORT SAYS IS
21 AS FOLLOWS, REFERENCING THE PULMONARY CIRCUMSTANCE. IN
22 ADDITION, THERE IS INCREASING ATELECTASIS AND, SLASH, OR
23 PNEUMONIA IN BOTH LUNG BASES, RIGHT GREATER THAN LEFT. ARE
24 YOU AWARE THAT'S WHAT THE REPORT SAID?
25 A. YES.
4229
1 Q. IT DIDN'T JUST SAY IN THE RIGHT, DID IT?
2 A. NO.
3 Q. IN FACT, IT WAS A FINDING WITH RESPECT EITHER TO
4 ATELECTASIS AND/OR PNEUMONIA IN BOTH SIDES OF THE LUNG,
5 CORRECT?
6 A. YES.
7 Q. YOU ARE AWARE THAT DR. DIENHART WROTE A CONSULT REPORT
8 CONCERNING ENNIS ALLDREDGE?
9 A. YES.
10 Q. AND IN FACT WOULD YOU HAVE -- YOU'VE READ THAT?
11 A. YES.
12 Q. AND IN FACT, WHAT DR. DIENHART WROTE IN THAT CONSULT
13 REPORT CONCERNING LYMPHOMA IS, HE PUT END STAGE, DID HE NOT?
14 A. IN ONE SECTION, YES.
15 Q. AND IT'S TRUE, IS IT NOT, THAT END STAGE MEANS THE
16 FINALIZATION OF THE DISEASE PROCESS, TRUE?
17 A. YES.
18 Q. AND IN FACT, THE FINALIZATION OF THAT PARTICULAR DISEASE
19 PROCESS, IF LEFT UNTREATED OR RESOLVED, WOULD BE DEATH,
20 WOULDN'T IT?
21 A. NOT IF RESOLVED.
22 Q. PARDON ME?
23 A. YOU SAID UNTREATED OR RESOLVED. IT WOULDN'T BE DEATH IF
24 IT RESOLVED.
25 Q. THAT'S RIGHT. UNTREATED OR UNRESOLVED, TRUE?
4230
1 A. YES.
2 Q. YOU ARE CERTAINLY NOT SAYING THAT THE TOTAL IRRADIATION
3 OF HIS BODY BACK IN, I BELIEVE, TEN TO 15 YEARS BEFORE CURED
4 THAT LYMPHOMA, ARE YOU?
5 A. YEAH. I WOULD SAY IF HE SURVIVED TEN TO 15 YEARS WITH
6 TOTAL BODY IRRADIATION, IT WAS CURED.
7 Q. FINALLY, DOCTOR, YOU TALKED ABOUT TERMINAL DEHYDRATION.
8 AND I THINK YOU SAID THAT, WELL, YOU KNOW, IN THE PATIENTS
9 THAT I KNOW, WHILE THIRST IS A REAL SIGNIFICANT DRIVE, YOU
10 DIDN'T SENSE THAT THERE WAS A GREAT DEAL OF DISCOMFORT WITH
11 TERMINAL DEHYDRATION?
12 A. THAT'S CORRECT.
13 Q. DO YOU AGREE WITH THE STATEMENT, DOCTOR, THAT THE
14 EASIEST PAIN TO ENDURE IS SOMEBODY ELSE'S?
15 MS. BARLOW: OBJECTION, YOUR HONOR. THAT'S NOT AN
16 APPROPRIATE QUESTION.
17 THE COURT: OVERRULED.
18 THE WITNESS: NO.
19 MR. STIRBA: THAT'S ALL.
20 THE COURT: ANY REDIRECT?
21 MS. BARLOW: YES. THANK YOU.
22 REDIRECT EXAMINATION
23 BY MS. BARLOW:
24 Q. YOU'VE TALKED ABOUT THE F.A.S. SCORE. MR. STIRBA ASKED
25 YOU ABOUT CO-MORBIDITY. HAVE YOU HAD OCCASION TO LOOK AT
4231
1 THE CO-MORBIDITY OF THESE FIVE PATIENTS?
2 A. YES.
3 Q. WERE ANY OF THEM TERMINAL UPON ADMISSION AT DAVIS NORTH
4 HOSPITAL?
5 MR. STIRBA: OBJECTION. IT'S CUMULATIVE.
6 THE COURT: OVERRULED.
7 Q. (BY MS. BARLOW) WERE ANY OF THEM TERMINAL UPON
8 ADMISSION AT DAVIS NORTH HOSPITAL?
9 A. THAT'S NOT CLEAR FROM THE RECORDS.
10 Q. YOU SAID -- YOU ANSWERED THAT YOU HAD RESERVATIONS, I
11 GUESS IS THE WAY YOU PUT IT, ABOUT THE HOSPITAL RECORDS
12 BEING THE BEST DETERMINATION OF WHETHER A PERSON'S
13 AMBULATORY ON ADMISSION. WHY DO YOU SAY THAT?
14 A. WELL, BECAUSE THE WAY YOU ARE SUPPOSED TO APPLY THE
15 F.A.S. SCORE IS IN THE STABLE SITUATION. YOU DON'T APPLY IT
16 IN AN UNSTABLE SITUATION. THE NURSING FACILITY HAD BEEN
17 CARING FOR THESE RESIDENTS FOR AT LEAST MONTHS PRIOR TO
18 THAT. THEY HAD BEEN DOING ROUTINE AND FREQUENT ASSESSMENTS
19 AND WOULD KNOW THE PATIENTS WELL. THIS IS AN INITIAL
20 ASSESSMENT PERFORMED BY THE HOSPITAL. THEY MAY NOT BE FULLY
21 AWARE OF THE PATIENT'S CAPABILITIES, PARTICULARLY WHEN THE
22 PATIENT IS DEMENTED AND AGITATED AND REQUIRES SOME SPECIAL
23 ASSISTANCE TO REACH THEIR HIGHEST FUNCTIONAL GOAL.
24 Q. WITH MRS. ANDERSON, YOU SAID YOU HAD RESERVATIONS ABOUT
25 THE HOSPITAL RECORD BEING THE BEST DETERMINATION ABOUT
4232
1 WHETHER SHE COULD COMPLAIN OF PAIN. WHY IS THAT?
2 A. WELL, IN ONE SECTION IT SAYS THAT SHE'S UNABLE AND
3 ANOTHER SECTION IT DESCRIBES HER HAVING VOCALIZATION AND
4 CRYING OUT FOR HER FAMILY. SO I MEAN, SHE HAD SOME
5 VERBALIZATIONS. AND SHE CERTAINLY, AT DISCHARGE FROM THE
6 NURSING FACILITY ON THEIR ASSESSMENT, WAS LISTED AS BEING
7 ABLE TO SPEAK.
8 Q. NOW, YOU'VE HAD A REPORT READ TO YOU ABOUT THE X-RAY FOR
9 ELLEN ANDERSON. DID YOU LOOK AT THAT X-RAY YOURSELF?
10 A. I DID.
11 Q. AND WHERE DID YOU SEE CLOUDS?
12 A. WELL, I SAW HAZINESS IN THE RIGHT CHEST. TO A FAIR
13 EXTENT IN THE LOWER PART OF THE LUNG. AND ON THE LEFT SIDE
14 THERE WERE FINDINGS OF ATELECTASIS, BUT I DIDN'T CONSIDER IT
15 IN MY PROFESSIONAL JUDGMENT TO BE INFILTRATES.
16 Q. WHAT IS ATELECTASIS?
17 A. THE LUNGS ARE COMPOSED OF LITTLE AIR SACKS. WHEN THE
18 LITTLE AIR SACKS COLLAPSE AGAINST EACH OTHER THEY FORM SORT
19 OF A LINEAR, VERY THIN, DENSITY AND THAT'S ATELECTASIS, OR
20 LOSS OF AIR IN THE ALVEOLI OR SMALL AIR SACKS.
21 Q. AND WHAT CAN CAUSE THAT?
22 A. IT CAN BE CAUSED BY SHALLOW RESPIRATIONS.
23 Q. IF YOU'LL OPEN UP ENNIS ALLDREDGE'S MEDICAL RECORDS,
24 PAGE NUMBER SEVEN. AND I BELIEVE UNDER MEDICAL HISTORY,
25 NUMBER FOUR, WOULD YOU READ THAT, PLEASE.
4233
1 A. YES. IT SAYS HISTORY OF MYCOSIS FUNGOIDES END STAGE.
2 MEDICAL RECORD INDICATES PATIENT HAD TOTAL BODY IRRADIATION
3 AT ONE POINT.
4 Q. AND THIS IS DR. DIENHART'S CONSULT REPORT; IS THAT
5 CORRECT?
6 A. YES.
7 Q. NOW, LET'S TURN OVER TO PAGE NINE, WHICH IS THE SAME
8 CONSULT REPORT, AND THIS IS UNDER THE SECTION CALLED
9 IMPRESSION. WOULD YOU READ NUMBER SEVEN.
10 A. HISTORY OF MYCOSIS FUNGOIDES UNKNOWN STAGE. STATUS,
11 POST-THERAPY WITH TOTAL BODY IRRADIATION.
12 Q. IF YOU'LL TURN OVER TO PAGE 11. DR. DIENHART HAS
13 WRITTEN IN THE PHYSICIAN ORDER HIS CONSULT. ON THE
14 RIGHT-HAND SIDE CAN YOU GO DOWN A WAYS WHERE IT SAYS H.X.
15 MYCOSIS FUNGOIDES AND READ THAT. IT'S ABOUT A THIRD OF THE
16 WAY DOWN, JUST SLIGHTLY BEFORE -- ABOVE THE THIRD.
17 A. YES. IT SAYS HISTORY OF MYCOSIS FUNGOIDES, UNKNOWN
18 STAGE. TREATMENT WITH TOTAL BODY IRRADIATION. QUESTION,
19 SEZARY.
20 Q. SEZARY?
21 A. IT'S A SYNDROME THAT OCCURS WITH MYCOSIS FUNGOIDES THAT
22 INVOLVES THE SKIN. THERE ARE FINDINGS ON THE SKIN.
23 Q. WAS THE MYCOSIS FUNGOIDES AT THAT POINT A TERMINAL
24 ILLNESS?
25 A. BASED ON MY REVIEW OF THE RECORDS, THE EVIDENCE THAT'S
4234
1 THERE FROM THE CONSULTATION NOTE AND AUTOPSY, NO.
2 MS. BARLOW: I THINK THAT'S ALL I HAVE, YOUR HONOR.
3 THE COURT: ANYTHING FURTHER?
4 MR. STIRBA: YES.
5 RECROSS-EXAMINATION
6 BY MR. STIRBA:
7 Q. THOSE FINDINGS, DOCTOR, ARE NOT CONSISTENT WITH A
8 RESOLUTION OF THE DISEASE, ARE THEY?
9 A. RESOLUTION OF WHAT DISEASE?
10 Q. THE FINDINGS THAT YOU JUST REFERRED TO THAT DR. DIENHART
11 MADE CONCERNING SKIN ABNORMALITIES?
12 A. IN THE QUESTION OF SEZARY?
13 Q. YES.
14 A. NO. IT JUST MEANS HE WONDERED IF HE HAD SEZARY. THAT'S
15 MY INTERPRETATION.
16 Q. THAT'S YOUR INTERPRETATION. AND IT DOESN'T SAY IN HIS
17 REPORT, DOES IT, THAT IT'S RESOLVED OR CURED?
18 A. NO.
19 MR. STIRBA: THAT'S ALL.
20 MS. BARLOW: NOTHING FURTHER, YOUR HONOR.
21 THE COURT: MAY THIS WITNESS BE EXCUSED?
22 MS. BARLOW: YES.
23 THE COURT: THANK YOU. DO YOU HAVE ANY OTHER
24 REBUTTAL WITNESSES?
25 MR. WILSON: NO, YOUR HONOR, BUT WE DO HAVE SOME
4235
1 ARGUMENT THAT WE NEED TO MAKE OUTSIDE THE PRESENCE OF THE
2 JURY.
3 THE COURT: OKAY. LADIES AND GENTLEMEN, I THINK WE
4 MAY HAVE ONE MORE WITNESS BEFORE WE BREAK TODAY. WE'LL TAKE
5 A SHORT BREAK SO I CAN HANDLE A LEGAL MATTER. DURING THIS
6 TIME WHEN YOU ARE OUT REMEMBER THAT IT'S YOUR DUTY NOT TO
7 CONVERSE AMONG YOURSELVES OR WITH ANYONE ELSE REGARDING THE
8 SUBJECT OF THIS TRIAL. IT'S ALSO YOUR DUTY NOT TO FORM OR
9 EXPRESS AN OPINION UNTIL THE CASE IS FINALLY SUBMITTED TO
10 YOU AFTER YOU'VE HEARD ALL OF THE EVIDENCE. WE'LL HAVE YOU
11 COME BACK WHEN WE'RE READY.
12 (JURY LEAVES THE COURTROOM.)
13 THE COURT: PLEASE BE SEATED. THE RECORD WILL
14 REFLECT THAT THE JURY HAS LEFT THE COURTROOM.
15 MR. WILSON: YOUR HONOR, WE DID INDICATE YESTERDAY
16 THAT WE HAD A WITNESS AS PERTAINED TO A MEDICAL RECORD
17 SUMMARY. I PROVIDED THE COURT WITH A COPY OF THAT AND
18 COUNSEL A COPY OF THAT. I INDICATED TO COUNSEL I WOULD LIKE
19 THE OPPORTUNITY TO SPEAK WITH HIM FURTHER ABOUT THAT. I
20 DON'T THINK THAT'S A WITNESS THAT WOULD BE NECESSARY TO
21 PRESENT IN FRONT OF THE JURY BECAUSE IT'S PURELY
22 FOUNDATIONAL IN TERMS OF THE MEDICAL RECORDS AS TO HOW SHE
23 PREPARED THE SUMMARY AND WE COULD POSSIBLY EVEN MAKE IT BY
24 PROFFER. BUT WE ALSO HAVE A COUPLE OF OTHER EXHIBITS THAT
25 WE'D LIKE TO ADDRESS TO THE COURT. SO WITH THAT RESERVATION
4236
1 AS TO THOSE EXHIBITS, WE ARE PREPARED TO REST AS FAR AS
2 REBUTTAL IS CONCERNED.
3 THE COURT: DO YOU HAVE ANY OBJECTION TO DISCUSSING
4 EXHIBITS AFTER THE EVIDENCE IS IN?
5 MR. STIRBA: I HAVE NO OBJECTION DISCUSSING THIS
6 PARTICULAR EXHIBIT AT THAT TIME, JUDGE. WE DO HAVE A
7 PROBLEM WITH IT.
8 THE COURT: OKAY. THE OTHER EXHIBITS --
9 MR. WILSON: I HAVEN'T PROVIDED HIM WITH THOSE
10 OTHER EXHIBITS AS YET.
11 THE COURT: ALL RIGHT. AND WHAT ABOUT -- OKAY. DO
12 YOU INTEND TO CALL A WITNESS?
13 MR. STIRBA: I DO. I WAS JUST INFORMED HE'S NOT
14 HERE YET, BUT HE SHOULD BE HERE ANY MINUTE. SO IF WE
15 COULD --
16 THE COURT: OKAY. IS THERE ANY -- OKAY. HE MADE A
17 PROFFER BEFORE OUR LAST BREAK. DO YOU HAVE ANY RESPONSE TO
18 THAT PROFFER?
19 MR. MAJOR: WE DO, YOUR HONOR. IF I UNDERSTAND THE
20 PROFFER -- AND I APOLOGIZE TO THE COURT. I WAS NOT PRESENT
21 WHEN THE PROFFER WAS MADE, BUT MY UNDERSTANDING IS THAT HE
22 IS GOING TO BE CALLED TO TALK ABOUT THE PRE-EXISTING
23 PNEUMONIA THAT EXISTED IN ELLEN ANDERSON.
24 YOUR HONOR, WE HAVE PULLED THE RECORDS THAT DR.
25 ROTHFEDER TESTIFIED ON HIS DIRECT AND HE WENT INTO THAT
4237
1 EXTENSIVELY CONCERNING ELLEN ANDERSON'S CONDITION. HE
2 STARTED OFF WITH AN OPINION THAT THE DEATH WAS CAUSED BY THE
3 PNEUMONIA SUPERIMPOSED UPON HER OLD AGE. WE WENT INTO SOME
4 DETAIL ABOUT WHAT THE X-RAY REVEALED. THIS IS -- THIS --
5 AND THIS WAS DATED NOVEMBER 18, 1995, MAYBE FIVE, SIX WEEKS
6 PRIOR TO THE HOSPITAL ADMISSION.
7 MISS ANDERSON WAS IN THE BOX ELDER COUNTY PIONEER
8 NURSING HOME AND THIS IS A DOCTOR'S EVIDENCE OF HER
9 CONDITION AT THAT TIME. FURTHER, HE'S NOT REALLY
10 CONSIDERING THAT THIS IS A TUMOR, BUT IS SAYING THAT THIS IS
11 EITHER ATHETOSIS, OR WHATEVER THAT WORD IS, THAT OR
12 PNEUMONIA OR BOTH. HE WENT INTO VERY EXTENSIVE DETAIL
13 CONCERNING THAT.
14 WE EVEN ASKED HIM ON CROSS-EXAMINATION CONCERNING THE
15 AUTOPSY REPORT, IF HE WAS FAMILIAR WITH IT. HE INDICATED HE
16 HAD BEEN THERE DURING THE PORTION OF AUTOPSY WHEN THAT WAS
17 DONE. AND I ASKED HIM THAT IF IN FACT THE AUTOPSY SHOWED
18 PNEUMONIA WOULD THAT MAKE A DIFFERENCE TO HIS OPINION. HE
19 SAID NO. HE FURTHER INDICATED THAT IN FACT THERE WAS
20 PNEUMONIA IN THE LUNG. AND THE AUTOPSY WOULD CONFIRM HIS
21 DIAGNOSIS UP THERE BEING UNTREATED PNEUMONIA SINCE NOVEMBER
22 18.
23 AND HE INDICATED, FINALLY, THAT IN FACT DR. KELLER
24 THOUGHT IT MIGHT BE A PNEUMONIA AND IF IT TURNED OUT IT WAS
25 PNEUMONIA WE THINK THAT IS CONCERNED -- YOUR HONOR, HE HAS
4238
1 GONE INTO VERY GREAT DETAIL CONCERNING HER CONDITION. WHAT
2 WE HAVE HERE IS GOING TO BE CUMULATIVE AS FAR AS THAT
3 TESTIMONY IS CONCERNED. DR. FEHLAUER TALKED A LITTLE BIT
4 ABOUT IT, BUT I DON'T THINK DR. ROTHFEDER WOULD BE
5 TESTIFYING TO -- THERE WOULD BE ANY REBUTTAL TO WHAT HE
6 SAID.
7 MY UNDERSTANDING IS THERE IS GOING TO BE SOME
8 TESTIFYING ABOUT CHEYNE-STOKES. AGAIN, I'M NOT SURE WHETHER
9 THE DEFENDANT IS QUALIFIED TO TESTIFY TO THAT, BUT I THINK
10 BOTH DR. HERBST AND DR. HILL, I BELIEVE IT WAS, WENT INTO
11 GREAT DETAIL CONCERNING CHEYNE-STOKES AND HOW THAT WAS
12 AFFECTED AS FAR AS THE DYING PROCESS. CONCERNING DR.
13 ROTHFEDER, ANY TESTIMONY HE WOULD HAVE WOULD JUST BE
14 CUMULATIVE TO WHAT THEY HAVE ALREADY TESTIFIED TO.
15 AND AS FAR AS THE MYCOSIS FUNGOIDES, AGAIN, DR.
16 ROTHFEDER TESTIFIED AT GREAT LENGTH CONCERNING THAT. HE
17 INDICATED THAT MYCOSIS FUNGOIDES IS AN UNCOMMON TO RARE
18 DISEASE. I MEAN, MUCH LESS COMMON THAN DIABETES AND HEART
19 DISEASE AND STROKES AND ALL THE OTHER THINGS. I'VE SEEN
20 LESS THAN A HANDFUL OF CASES OF THIS IN MY PROFESSIONAL
21 CAREER.
22 HE TALKS ABOUT DIENHART'S CONSULTATION AND INDICATES
23 THAT HE WAS END STAGE. IN OTHER WORDS, HE WAS AT DEATH'S
24 DOOR FROM THAT ALONE. HE TALKED ABOUT RADIATION OF THE BODY
25 AND TALKED ABOUT HYPOTHYROIDISM AS A RESULT. ALL OF THE
4239
1 OTHER TYPES OF THINGS HAVE BEEN GONE INTO IN VERY GREAT
2 DETAIL IN DR. ROTHFEDER'S DIRECT EXAMINATION. I THINK IT'S
3 ACCUMULATIVE TO WHAT WE HAVE HERE.
4 THE COURT: OKAY. THANK YOU. ANY RESPONSE?
5 MR. STIRBA: YES, YOUR HONOR. AND I HAVE NARROWED
6 THIS DOWN IN LIGHT OF SOME OF THE THINGS THAT DID NOT COME
7 OUT. VERY SIMPLY, I DIDN'T EXPECT DR. FEHLAUER TO SAY THAT
8 THE PNEUMONIA WHICH WAS SHOWN ON THE CHEST X-RAY AT FIVE
9 A.M. CONCERNING MISS ANDERSON WOULD HAVE COME FROM AN EVENT
10 THAT OCCURRED AT SEVEN O'CLOCK THE FOLLOWING EVENING. I
11 WANT DR. ROTHFEDER TO SAY THAT'S POPPYCOCK.
12 I ALSO WANT HIM TO TESTIFY -- I THINK HE CAN TESTIFY
13 ABOUT CHEYNE-STOKES. HE'S ALREADY -- I THINK THE COURT IS
14 WELL AWARE OF HIS SORT OF --
15 THE COURT: WELL, IT'S NOT -- HIS QUALIFICATIONS,
16 HASN'T IT BEEN GONE OVER? HASN'T HE ALREADY TESTIFIED, OR
17 OTHER WITNESSES FOR THE DEFENSE TESTIFIED, THAT AS A PART OF
18 THE DYING PROCESS NO, IT'S NOT PART OF THE DYING PROCESS?
19 MR. STIRBA: I WITHDRAW IT. IT'S NOT THAT
20 CRITICAL.
21 THE COURT: OKAY.
22 MR. STIRBA: I WANT HIM TO TESTIFY -- BASICALLY I
23 WOULD SAY THE LYMPHOMA WAS TERMINAL. I WANT HIM TO SAY FOR
24 THE RECORD WHAT HE CAN TELL AND WHETHER OR NOT HE THINKS
25 THAT'S RESOLVED AND WHY I THINK WE DECIDED TO SAY THAT IN
4240
1 LIGHT OF THAT WE JUST LEARNED. I WANT HIM ALSO TO TESTIFY
2 ABOUT THE KIDNEY FUNCTIONS. THAT WAS AN OPINION I JUST
3 HEARD FOR THE FIRST TIME. I WOULD LIKE FOR HIM TO ADDRESS
4 THAT, IF HE COULD. SO BASICALLY IT'S THOSE THREE THINGS.
5 THE COURT: OKAY.
6 MR. MAJOR: JUST IN RESPONSE, YOUR HONOR. I THINK
7 HE HAS TESTIFIED TO THAT IN SOME DETAIL. WE TALKED --
8 AGAIN, AS I RECALL ON THE CANCER, WE WENT OVER THAT WITH HIS
9 AUTOPSY REPORT. AND I THINK HE TESTIFIED ABOUT HIS RESULTS
10 FROM THE AUTOPSY REPORT. I DON'T THINK -- HE'S AN E.R.
11 DOCTOR, HE'S NOT AN INTERNIST. NOT AN INTERNAL SPECIALIST.
12 I DON'T THINK HE'S QUALIFIED TO TALK ABOUT THE SITUATION
13 WITH THE KIDNEYS AND THESE TYPES OF THINGS. WE'D SUBMIT IT.
14 THE COURT: OKAY. I'M NOT GOING TO ALLOW ANY -- AS
15 I MENTIONED ABOUT THE CHEYNE-STOKES BREATHING, I'LL ALLOW
16 THE LIMITED THING WITH DR. HARE'S COMMENT ABOUT THE
17 PNEUMONIA. I'LL ALLOW KIDNEY FUNCTION, IF THERE'S A
18 FOUNDATION. AND A BRIEF THING ON THE MYCOSIS FUNGOIDES.
19 AND THEN AFTER THAT WILL THERE BE ANY OTHER WITNESSES?
20 MR. STIRBA: NONE FROM US, YOUR HONOR.
21 THE COURT: OKAY. THEN WE'LL ADDRESS THE OTHER
22 ISSUE OF THE EXHIBITS LATER. OKAY. HAS YOUR WITNESS
23 ARRIVED OR --
24 MR. STIRBA: LET ME SEE, YOUR HONOR. MAY I HAVE A
25 MINUTE.
4241
1 THE COURT: WHY DON'T WE JUST BREAK TO GIVE THE
2 COURT REPORTER A BREAK AND THEN WE'LL COME BACK AT 11.
3 (WHEREUPON, COURT WAS IN BRIEF RECESS.)
4 THE COURT: PLEASE BE SEATED. THE RECORD WILL
5 REFLECT THAT THE JURY HAS RETURNED. DO YOU HAVE ANY FURTHER
6 REBUTTAL WITNESS?
7 ROBERT KEITH ROTHFEDER,
8 CALLED BY THE DEFENDANT, HAVING BEEN DULY
9 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
10 DIRECT EXAMINATION
11 BY MR. STIRBA:
12 Q. I'LL REMIND YOU, YOU ARE STILL UNDER OATH.
13 A. I UNDERSTAND.
14 Q. YOU REVIEWED THE RECORDS FOR ELLEN ANDERSON. YOU
15 PREVIOUSLY TESTIFIED CONCERNING A PULMONARY COMPLICATION?
16 A. THAT'S CORRECT.
17 Q. WHICH YOU OBSERVED BASED UPON YOUR REVIEW OF THE
18 RECORDS?
19 A. THAT'S CORRECT.
20 Q. BRIEFLY JUST TELL US WHAT YOU FOUND.
21 A. WELL, AT AUTOPSY THE PATIENT WAS FOUND TO HAVE PNEUMONIA
22 PRESENT. IN REVIEWING THE MEDICAL RECORDS PRECEDING THAT
23 THERE WAS AN INFILTRATE SHADOW OR DENSITY ON THE CHEST
24 X-RAY, BOTH ON THE CHEST X-RAY TAKEN DURING THE
25 HOSPITALIZATION AND ONE TAKEN MAYBE FOUR OR SIX WEEKS PRIOR.
4242
1 I BELIEVE IT WAS IN NOVEMBER. THAT SHOWED -- THAT SHOWED
2 THE SAME DENSITY. IT WAS MY CONCLUSION THAT THAT SHADOW ON
3 THE CHEST X-RAY REPRESENTED A PNEUMONIA THAT HAD BEEN
4 PRESENT SINCE AT LEAST THE TIME OF THAT FIRST CHEST X-RAY
5 THAT I REFERENCED.
6 Q. DO YOU HAVE AN OPINION AS TO WHETHER OR NOT THE
7 PNEUMONIA WHICH YOU OBSERVED COULD HAVE STARTED UPON HER
8 ADMISSION AT THE HOSPITAL AND INCREASED TO THE INFECTION
9 WHICH WAS INDICATED IN THE CHEST X-RAY AT FIVE A.M.?
10 A. I DO.
11 Q. AND WHAT IS YOUR OPINION?
12 A. I DON'T BELIEVE THAT WAS THE CASE.
13 Q. WHY IS THAT?
14 A. PNEUMONIA JUST SIMPLY IS NOT GOING TO DEVELOP OVER THAT
15 SHORT A PERIOD OF TIME, IN MY OPINION. THE DISEASE PROCESS
16 IS GOING TO TAKE A LONGER PERIOD OF TIME.
17 Q. DOCTOR, IS THERE A WAY THAT YOU CAN TEST FOR KIDNEY
18 FUNCTION?
19 MR. MAJOR: OBJECTION, YOUR HONOR. I DON'T THINK
20 HE HAS QUALIFICATIONS TO REPLY TO THAT.
21 THE COURT: DO YOU WANT TO LAY A FOUNDATION?
22 Q. (BY MR. STIRBA) DOCTOR, IN YOUR PRACTICE OF MEDICINE
23 HAVE YOU HAD OCCASION TO TEST OR PERFORM CERTAIN TESTS,
24 DIAGNOSTIC, FOR KIDNEY FUNCTION?
25 A. TENS OF THOUSANDS OF TIMES PROBABLY.
4243
1 Q. AND GENERALLY WHAT DOES THAT TEST ENTAIL?
2 A. THAT INVOLVES BASICALLY DOING BLOOD TESTS WHICH MEASURE
3 THE LEVEL OF SUBSTANCES CONTAINING NITROGEN WHICH THE
4 KIDNEYS ELIMINATE FROM THE BODY. THE NAMES OF THOSE
5 SUBSTANCES ARE THE B.U.N., OR BLOOD UREA NITROGEN, AND THE
6 CREATININE SPECIFICALLY.
7 Q. AND HOW ARE THOSE SUBSTANCES RELEVANT TO A DETERMINATION
8 OF KIDNEY FUNCTION?
9 A. THERE'S A RANGE OF NORMAL FOR THOSE SUBSTANCES IN THE
10 BLOOD WHEN THE KIDNEYS ARE FUNCTIONING NORMALLY, WHEN THE
11 KIDNEYS ARE CLEARING THOSE NITROGEN CONTAINING COMPOUNDS
12 FROM THE BLOOD. WHEN THE KIDNEYS BEGIN TO FAIL AND DON'T
13 FUNCTION PROPERLY, THE LEVEL OF THOSE CHEMICALS WHICH THE
14 KIDNEYS ELIMINATE GOES UP AND THE LEVEL TO WHICH THEY RISE
15 INDICATES THE DEGREE OF DYSFUNCTION OF THE KIDNEY.
16 Q. WERE TESTS SUCH AS YOU JUST DESCRIBED PERFORMED ON THE
17 PATIENTS INVOLVED IN THIS CASE?
18 A. I BELIEVE THEY WERE PERFORMED ON ALL OF THE PATIENTS IN
19 THIS CASE, TO MY RECOLLECTION.
20 Q. AND WHAT KIND OF TESTS ARE THEY AGAIN?
21 A. THERE'S A B.U.N., BLOOD UREA NITROGEN, AND CREATININE.
22 THOSE ARE PART OF THE USUAL CHEMISTRY PANEL THAT'S PERFORMED
23 ROUTINELY ON HOSPITALIZED PATIENTS.
24 Q. AND BASED UPON YOUR REVIEW OF THOSE SPECIFIC TESTS
25 CONCERNING THESE SPECIFIC PATIENTS, DO YOU HAVE AN OPINION
4244
1 AS TO THE DEGREE OF KIDNEY FUNCTIONING CONCERNING THESE
2 PARTICULAR PATIENTS?
3 A. I DO.
4 Q. WITH THE EXCEPTION OF -- AND I BELIEVE IT WAS MARY
5 CRANE, THE PATIENT WHO ULTIMATELY DEVELOPED SEPSIS AND WHO
6 HAD AN ELEVATION OF THOSE CHEMICALS FROM KIDNEY FAILURE AS
7 AN IMMEDIATE PRETERMINAL EVENT?
8 A. THE MEASURABLE KIDNEY FUNCTION ON ALL OF THE PATIENTS,
9 INCLUDING MARY PRIOR TO HER DEMISE, WAS NORMAL.
10 Q. NOW, YOU TESTIFIED PREVIOUSLY CONCERNING MR. ALLDREDGE
11 AND WHAT YOU IDENTIFIED AS A FORM OF CANCER OR LYMPHOMA. DO
12 YOU RECALL THAT?
13 A. MYCOSIS FUNGOIDES WAS THE TERM AND I BELIEVE I TESTIFIED
14 THAT THAT WAS A RELATIVELY RARE TYPE OF SYSTEMIC DISEASE.
15 Q. BASED UPON YOUR REVIEW OF HIS PARTICULAR RECORD, DO YOU
16 HAVE AN OPINION AS TO WHETHER OR NOT THAT PARTICULAR DISEASE
17 PROCESS HAD BEEN CURED OR RESOLVED AT THE TIME OF HIS DEATH?
18 A. WELL, THE MEDICAL RECORDS CERTAINLY INDICATED THAT IT
19 HAD NOT BEEN RESOLVED. AND IN FACT I BELIEVE DR. DIENHART,
20 IF THAT'S THE CORRECT PRONUNCIATION, NOTED THAT THAT
21 CONDITION WAS END STAGE AS ONE OF HIS MAJOR DIAGNOSES.
22 MR. STIRBA: THANK YOU. THAT'S ALL I HAVE.
23 THE COURT: MR. MAJOR.
24 CROSS-EXAMINATION
25 BY MR. MAJOR:
4245
1 Q. DOCTOR, YOUR INDICATION IS THAT -- YOU ARE AWARE, ARE
2 YOU NOT, THAT THE X-RAY TAKEN BY DR. KELLER INDICATED
3 INFILTRATE OR POSSIBLE PROBLEM WITH BREATHING IN BOTH OF
4 MARY -- ELLEN ANDERSON'S LUNGS ON NOVEMBER 18?
5 A. THAT'S CORRECT.
6 Q. YOU ARE ALSO AWARE, ARE YOU NOT, THAT THE AUTOPSY
7 PERFORMED BY DR. GRAY SHOWED THERE WAS ONLY THE PNEUMONIA IN
8 THE ONE LUNG?
9 A. THAT'S CORRECT.
10 Q. THANK YOU. NOW, YOU ALSO INDICATED, DOCTOR, THAT YOU
11 HAD A CHANCE TO REVIEW THE MEDICAL RECORDS ON SOME OF THESE
12 PATIENTS ON B.U.N., I BELIEVE YOU CALLED IT; IS THAT
13 CORRECT?
14 A. THAT'S RIGHT.
15 Q. AND THAT'S WHAT? WHAT DOES THAT STAND FOR?
16 A. THAT STANDS FOR BLOOD UREA NITROGEN.
17 Q. DO YOU HAVE ENNIS ALLDREDGE'S FILE THERE?
18 A. I DO.
19 Q. PLEASE TURN TO PAGE 0023.
20 A. GIVE ME A MINUTE. UNDER WHICH TAB WOULD THAT BE, MR.
21 MAJOR?
22 Q. PARDON?
23 A. WHICH TAB WOULD THAT BE UNDER?
24 Q. I BELIEVE THAT'S UNDER LABS.
25 A. OKAY. 0023. ALL RIGHT.
4246
1 Q. AND YOU RECOGNIZE THAT AS BEING BLOOD WORK OFF THE LAB
2 TEST THAT WAS DONE ON ENNIS ALLDREDGE?
3 A. THAT'S CORRECT.
4 Q. AND BASED ON THIS LAB RESULT THEY INDICATE THAT THE
5 B.U.N., OR THE BLOOD UREA NITROGEN, IS SIX WITH A RANGE UP
6 TO 20; IS THAT CORRECT?
7 A. THE NORMAL IS BETWEEN SIX AND 20, THAT'S CORRECT.
8 Q. THAT IS CORRECT. AND YOU AGREE WITH THAT, THAT WOULD BE
9 THE NORMAL RANGE?
10 A. IT CAN VARY FROM LAB TO LAB, BUT I WOULD AGREE THAT THAT
11 IS A TYPICAL NORMAL RANGE, THAT'S CORRECT.
12 Q. YOU ALSO INDICATED THAT THE TEST THAT WAS DONE ON ENNIS
13 ALLDREDGE ON THE 13TH OF JANUARY, 1996, SHOWS THAT HE HAS A
14 B.U.N. OF 22?
15 A. THAT'S CORRECT.
16 Q. AND IT ALSO SHOWS AS BEING HIGH, DOESN'T IT, BASED ON
17 THE MEDICAL RECORD?
18 A. THAT'S MINIMAL ELEVATED, THAT'S CORRECT.
19 Q. BUT THEY HAVE AN "H" WHICH STANDS FOR HIGH?
20 A. THE COMPUTER PRINTS THAT "H", THAT'S CORRECT.
21 Q. NOW, DOCTOR, WILL YOU TURN TO PAGE 0007. I BELIEVE THIS
22 IS UNDER THE ONE MARKED CONSULTATION.
23 A. ON MR. ALLDREDGE?
24 Q. ON MR. ALLDREDGE.
25 A. ALL RIGHT.
4247
1 Q. AND 0007 IS THE REPORT OF THE CONSULTATION DONE BY DR.
2 DIENHART; IS THAT CORRECT?
3 A. CORRECT.
4 Q. AND THIS IS WHERE YOU INDICATED THAT HE HAD THE SKIN
5 CANCER THAT YOU INDICATED WAS END STAGE; IS THAT CORRECT?
6 A. CORRECT.
7 Q. BUT IF YOU TURN OVER TO PAGE 0009 AND THE CONSULTATION
8 NUMBER SEVEN HISTORY OF MYCOSIS FUNGOIDES, UNKNOWN STAGE,
9 THE STATUS IS POST-THERAPY WITH TOTAL BODY RADIATION; IS
10 THAT CORRECT?
11 A. THAT'S CORRECT.
12 Q. SO AT THAT POINT IN TIME DR. DIENHART IS SAYING THAT
13 IT'S AN UNKNOWN STAGE OF CANCER; IS THAT CORRECT?
14 A. IT'S NOT CLEAR TO ME WHAT HE'S REFERENCING THERE.
15 Q. OKAY. OBVIOUSLY HE'S NOT REFERENCING THAT IT'S END
16 STAGE?
17 A. WELL, IT WOULD APPEAR THAT THERE WOULD BE AN
18 INCONSISTENCY FROM THAT TO THE EARLIER STAGE OF THE REPORT.
19 HOWEVER --
20 Q. LET ME ASK YOU THIS. PLEASE TURN TO PAGE OO11.
21 A. OKAY.
22 Q. AND ON THE RIGHT SIDE OF THAT ABOUT, I GUESS, A THIRD OF
23 THE WAY DOWN, DR. DIENHART BEGINS TO LIST SOME OTHER THINGS
24 IN THE PROGRESS NOTE; IS THAT CORRECT?
25 A. THAT'S CORRECT.
4248
1 Q. AND SEE WHERE IT STARTS, I BELIEVE THAT'S MYCOSIS
2 FUNGOIDES, ABOUT ONE, TWO, THREE, FOUR, FIVE, SIX, SEVEN,
3 EIGHT, NINE, TEN, 11, ABOUT THE 11TH LINE DOWN. DO YOU FIND
4 THAT REFERENCE?
5 A. I DO.
6 Q. AND THAT ALSO INDICATES THAT THE MYCOSIS FUNGOIDES IS AT
7 UNKNOWN STAGE; IS THAT CORRECT?
8 A. THAT'S WHAT THE WRITING SAYS, THAT'S CORRECT.
9 Q. AND WERE YOU AWARE THAT VONDA ALLDREDGE TESTIFIED ON THE
10 STAND ABOUT --
11 MR. STIRBA: I WOULD OBJECT, YOUR HONOR.
12 THE COURT: SUSTAINED.
13 Q. (BY MR. MAJOR) WOULD IT MAKE ANY DIFFERENCE TO YOUR
14 OPINION IF YOU WERE AWARE THAT TESTIMONY HAD BEEN GIVEN THAT
15 MR. ENNIS ALLDREDGE HAD RECEIVED THE RADIATION, HAD BEEN
16 GOING IN ONCE EVERY SIX MONTHS TO HAVE THAT CANCER CHECKED
17 ON, AND IN FACT THE INDICATIONS WERE THAT THE CANCER WAS NOT
18 PRESENT?
19 A. I SUPPOSE IT WOULD DEPEND UPON WHO WAS TELLING ME THAT
20 AND WHETHER I HAD THE OPPORTUNITY TO QUESTION THEM REGARDING
21 THE DETAILS THEREOF.
22 Q. BUT ASSUMING IT WAS TRUE, WOULD THAT MAKE A DIFFERENCE
23 IN YOUR OPINION?
24 A. ASSUMING WHAT WAS TRUE, NOW?
25 Q. THAT HE HAD RECEIVED RADIATION FROM THE UNIVERSITY OF
4249
1 UTAH AND IT HAD BEEN INDICATED THAT THE CANCER WAS IN
2 REMISSION. HE HAD BEEN GOING EVERY SIX MONTHS TO HAVE IT
3 CHECKED ON AND THEY INDICATED THE CANCER WAS STILL IN
4 REMISSION UP UNTIL THE TIME HE WENT INTO THE DAVIS NORTH
5 HOSPITAL?
6 A. MY OPINION WAS BASED UPON MY REVIEW OF DR. DIENHART'S
7 RECORDS, SO I GUESS MY OPINION WOULDN'T CHANGE GIVEN THE
8 INFORMATION THAT I BASED IT UPON.
9 Q. AND THAT WAS SIMPLY THAT DR. DIENHART PUT END STAGE?
10 A. CORRECT.
11 Q. YOU DON'T KNOW WHETHER END STAGE MEANS THAT HE'S END OF
12 HIS LIFE OR CANCER, END OF THE STAGE BEING CURED?
13 A. WELL, IT MIGHT HAVE MEANT BOTH, I SUPPOSE. IT MIGHT
14 HAVE MEANT THAT HE WAS AT THE END OF HIS LIFE AND THAT THE
15 CANCER WAS END STAGE AS WELL.
16 Q. THAT COULD HAVE ALSO MEANT THAT THE CANCER WAS AT END
17 STAGE AND THERE'S NO MORE CANCER?
18 A. I'VE NEVER HEARD THAT TERMINOLOGY USED. END STAGE ISN'T
19 USED AS A TERMINOLOGY TO REFERENCE REMISSION.
20 Q. BUT YOU ARE NOT SPECIALIZED AND BOARD CERTIFIED AS A
21 CANCER SPECIALIST, ARE YOU?
22 A. I'M NOT A CANCER SPECIALIST, THAT'S RIGHT.
23 Q. TURN TO THE PAGE IN THE MEDICAL RECORD FOR LYDIA SMITH.
24 A. ALL RIGHT.
25 Q. AND TURN, IF YOU WILL, TO 722, WHICH IS ALSO UNDER THE
4250
1 LABS.
2 A. ALL RIGHT. 722.
3 Q. 722.
4 A. OKAY.
5 Q. NOW THIS ALSO -- LET ME ASK, YOU AGREE THIS IS THE LAB
6 WORK FOR LYDIA SMITH?
7 A. CORRECT.
8 Q. AND YOU'VE TESTIFIED THAT THE NORMAL FOR THE B.U.N. IS
9 SIX TO 20 AND HER B.U.N. IS 24. SO THAT'S ELEVATED?
10 A. THAT'S CORRECT.
11 Q. AND THAT'S ALSO BEEN MARKED BY THE COMPUTER, AS YOU SAY,
12 BEING HIGH?
13 A. CORRECT.
14 Q. ELLEN ANDERSON WASN'T IN THE HOSPITAL LONG ENOUGH TO
15 HAVE THE WORKUP, WAS SHE, SHE HAD NO BLOOD WORK, SO WE DON'T
16 KNOW WHAT THE FUNCTION OF HER KIDNEYS WERE?
17 A. I COULD LOOK TO CONFIRM THAT. I DON'T RECALL WHETHER
18 SHE HAD HAD THOSE BLOOD TESTS OR NOT.
19 Q. OKAY. SO YOU WOULDN'T BE ABLE TO SAY WHETHER ELLEN
20 ANDERSON'S KIDNEYS WERE FUNCTIONING NORMALLY OR NOT
21 NORMALLY?
22 A. DO YOU WANT ME TO LOOK IN THE RECORD TO SEE?
23 Q. I'M SAYING THAT BASED ON YOUR TESTIMONY -- YOU TESTIFIED
24 EARLIER THAT THESE PATIENTS, OTHER THAN MARY CRANE, HAD
25 RENAL PROBLEMS, KIDNEY PROBLEMS. I'M JUST SAYING YOU HAVE
4251
1 NOT REVIEWED ELLEN ANDERSON'S RECORD -- RIGHT NOW, WITHOUT
2 REVIEWING THAT RECORD, YOU COULDN'T SAY WHETHER SHE DID OR
3 DIDN'T?
4 A. WELL, I HAVE REVIEWED THE RECORD AND I DON'T RECALL
5 SPECIFICALLY THOSE TESTS BEING DONE. BUT WHAT I'VE
6 TESTIFIED WAS THAT I COULD LOOK AND DETERMINE THAT FOR YOU,
7 IF YOU WISH.
8 Q. THAT'S FINE. LET ME ASK YOU THIS. YOU ALSO TESTIFIED
9 THAT IN FACT MARY CRANE DID HAVE A HIGH B.U.N.?
10 A. AS A PRE-TERMINAL EVENT, THAT'S CORRECT.
11 MR. MAJOR: THANK YOU. WE HAVE NO FURTHER
12 QUESTIONS, YOUR HONOR.
13 MR. STIRBA: REDIRECT.
14 REDIRECT EXAMINATION
15 BY MR. STIRBA:
16 Q. DO YOU HAVE MR. ALLDREDGE'S BINDER THERE IN FRONT OF
17 YOU?
18 A. YES.
19 Q. TURN BACK TO THE LABS, PLEASE.
20 A. ALL RIGHT.
21 Q. AND THEN SPECIFICALLY PAGE 21.
22 A. YES, I HAVE THAT IN FRONT OF ME.
23 Q. AND THAT IS A LAB THAT WAS DONE ON ADMISSION ON 1/10 OF
24 '96?
25 A. THAT'S CORRECT.
4252
1 Q. DO YOU SEE THE B.U.N. DETERMINATION THERE?
2 A. YES.
3 Q. IS IT WITHIN THE NORMAL RANGE?
4 A. YES; AS IS THE CREATININE.
5 Q. AND THEN THE ONE YOU WERE ASKED ABOUT IS ANOTHER TEST
6 THAT WAS DONE, I BELIEVE, ON THE 13TH?
7 A. THAT'S CORRECT.
8 Q. IS THERE ANY SIGNIFICANCE TO THE FACT THAT THE
9 CREATININE IS IN THE NORMAL RANGE AND THE B.U.N. IS MILDLY
10 ELEVATED IN TERMS OF YOUR OPINION AS TO KIDNEY FUNCTION?
11 A. THAT'S QUITE SIGNIFICANT. THE CREATININE IS A MUCH MORE
12 SENSITIVE TEST OF KIDNEY FUNCTION. THE B.U.N. CAN BE
13 ELEVATED DUE TO THINGS OTHER THAN KIDNEY FUNCTION, KIDNEY
14 FAILURE. AND THE INTERPRETATION OF THIS COMBINATION OF
15 RESULTS WITH A NORMAL CREATININE AND A VERY, VERY MINIMALLY
16 ELEVATED B.U.N, IN MY OPINION, WOULD BE THAT THE KIDNEY
17 FUNCTION WAS NORMAL BASED UPON THE CREATININE BEING A MORE
18 SENSITIVE MEASURE.
19 Q. WOULD YOU ALSO GET LYDIA SMITH'S BINDER OUT, PLEASE?
20 A. YES.
21 Q. AND THE PAGE I WOULD LIKE YOU TO TURN TO IS 722.
22 A. I HAVE IT.
23 Q. THAT WAS THE LAB TEST YOU WERE ASKED ABOUT WHICH APPEARS
24 TO BE DONE ON 12/20 OF '96?
25 A. CORRECT.
4253
1 Q. WHAT IS THE -- I CAN'T PRONOUNCE IT -- CREATININE?
2 A. THEY ARE TONGUE TWISTING. CREATININE.
3 Q. WHAT IS THE RANGE REPORT ON THAT TEST?
4 A. NORMAL RANGE OF CREATININE IS 0.5 TO 1.5.
5 Q. IS THERE A FINDING THERE THAT THAT CREATININE IS IN A
6 NORMAL RANGE?
7 A. NOT ONLY IS IT WITHIN THE NORMAL RANGE, IT'S RIGHT IN
8 THE MIDDLE OF THE NORMAL RANGE AT 1.0, WHICH WOULD INDICATE
9 THAT THE PATIENT HAD NORMAL RENAL FUNCTION.
10 Q. AND GIVEN THAT FINDING AND THE B.U.N. READING THAT IS
11 INDICATED THERE, DOES THAT HAVE ANYTHING SIGNIFICANT, IN
12 TERMS OF YOUR OPINION, AS TO WHETHER OR NOT RENAL FUNCTION
13 WAS NORMAL?
14 A. IT DOES. MY INTERPRETATION OF THAT COMBINATION OF
15 FINDINGS, WHICH IS NOT UNCOMMON, IS THAT THE PATIENT HAD
16 NORMAL RENAL FUNCTION.
17 MR. STIRBA: THANK YOU. THAT'S ALL I HAVE.
18 THE COURT: ANYTHING FURTHER?
19 RECROSS-EXAMINATION
20 BY MR. MAJOR:
21 Q. A COUPLE OF QUESTIONS. DOCTOR, JUST TALKING -- YOU
22 INDICATED THAT MARY CRANE DID HAVE A HIGH B.U.N. AND THAT
23 SHE PROBABLY DID HAVE SOME RENAL OR KIDNEY PROBLEMS,
24 CORRECT?
25 A. IMMEDIATELY PRIOR TO HER DEMISE WHEN THE SEPSIS WAS
4254
1 RAPIDLY DEVELOPING, AS IS USUALLY THE CASE --
2 MR. STIRBA: YOUR HONOR, I THINK IT'S BEYOND THE
3 SCOPE.
4 THE COURT: OVERRULED.
5 THE WITNESS: -- AS IS USUALLY THE CASE WHEN
6 KIDNEYS BEGIN TO FAIL.
7 Q. (BY MR. MAJOR): SO WOULD YOU PLEASE TURN TO PAGE --
8 MARY CRANE'S BINDER. TURN TO PAGE 258 UNDER THE LABS.
9 A. OKAY.
10 Q. IF I READ THIS RIGHT, AND CORRECT ME IF I'M WRONG, ON
11 12/28 THERE WAS A TEST DONE, SHOWS B.U.N. WAS 35. CORRECT?
12 A. THAT'S CORRECT.
13 Q. AND THAT'S HIGHER THAN THE OTHERS?
14 A. CONSIDERABLY, RIGHT.
15 Q. AND THEN IF YOU TURN OVER TO THE NEXT PAGE, 259, IT
16 INDICATES THAT HER B.U.N. WAS TAKEN ON 1/1 OF '96. THAT
17 B.U.N. IS 31?
18 A. CORRECT.
19 Q. THAT'S ALSO HIGH, IS IT NOT?
20 A. CORRECT.
21 Q. AND THEN, TURNING OVER TO PAGE 260 -- I'M SORRY. MAKE
22 THAT 261. IT INDICATES THAT HER B.U.N. IS 42 ON 1/7 OF '96;
23 IS THAT CORRECT?
24 A. CORRECT.
25 Q. SO BASICALLY MARY CRANE HAD A VERY HIGH ELEVATED B.U.N.
4255
1 FROM THE TIME SHE WAS IN THE HOSPITAL -- SHE ENTERED THE
2 HOSPITAL, CORRECT?
3 A. HER B.U.N. WAS ELEVATED WHEN SHE ENTERED THE HOSPITAL,
4 THAT'S CORRECT.
5 Q. AND SO SHE DID HAVE PROBLEMS WITH HER KIDNEYS?
6 A. MY CONCLUSIONS REGARDING THAT WERE BASED UPON ELEVATION
7 TO 42 OF THE B.U.N. AND THE -- BUT MORESO UPON THE
8 CREATININE OF 1.9. IF YOU'LL LOOK AT THOSE LAB TESTS, THE
9 CREATININE, WHICH I'VE TESTIFIED IS THE MORE SENSITIVE
10 INDICATOR, WAS WITHIN THE NORMAL RANGE UP UNTIL THE VERY
11 END.
12 Q. AND NORMAL RANGE IS .5 TO 1.5?
13 A. RIGHT. AND ON 1/7 IT HAD RISEN TO 1.9.
14 Q. THANK YOU.
15 A. YOU ARE WELCOME.
16 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS.
17 THE COURT: ANYTHING FURTHER?
18 MR. STIRBA: NO, YOUR HONOR. THANK YOU.
19 THE COURT: MAY THIS WITNESS BE EXCUSED?
20 MR. STIRBA: YES.
21 THE COURT: ANY OTHER WITNESSES?
22 MR. STIRBA: I DON'T.
23 THE COURT: ANY OTHER WITNESSES FOR THE STATE?
24 MR. WILSON: NO, YOUR HONOR.
25 THE COURT: OKAY. THEN, LADIES AND GENTLEMEN, WHAT
4256
1 WE'RE GOING TO DO IS AS FOLLOWS: I'M GOING TO RELEASE YOU.
2 I SAID, YOU KNOW, IT MIGHT BE 12 OR ONE. IT LOOKS LIKE IT'S
3 WAY BEFORE THEN. SO WHAT WE'RE GOING TO DO IS WE'RE GOING
4 TO ASK YOU TO COME BACK ON MONDAY AT 8:30. AND WHAT WE'RE
5 GOING TO DO ON MONDAY IS -- THIS AFTERNOON I NEED TO DISCUSS
6 WITH THE ATTORNEYS THE JURY INSTRUCTIONS, WHICH ARE THE LAW
7 THAT I'LL READ TO YOU BEFORE THE CLOSING ARGUMENTS. SO
8 THOSE WILL BE RESOLVED TODAY AND WHEN YOU COME AT 8:30 I'LL
9 READ YOU SOME JURY INSTRUCTIONS.
10 ON THOSE JURY INSTRUCTIONS YOU WON'T HAVE TO TAKE NOTES
11 BECAUSE THEY ARE WRITTEN DOCUMENTS THAT YOU WILL TAKE INTO
12 THE JURY ROOM. SO, IN OTHER WORDS, YOU CAN LISTEN TO ME
13 READING THEM AND THEN YOU WILL BE GIVEN THOSE JURY
14 INSTRUCTIONS AS WELL AS ALL THE EXHIBITS THAT HAVE BEEN
15 RECEIVED.
16 AT THAT POINT AFTER THE JURY INSTRUCTIONS THEN WE'LL
17 HAVE CLOSING ARGUMENTS. THE STATE WILL BEGIN THE CLOSING
18 ARGUMENTS AND THEY WILL END IT AND THE DEFENSE WILL BE IN
19 THE MIDDLE. AND SO THOSE WILL HAPPEN.
20 AND THEN AFTER THAT, THEN ALL THE THINGS THAT I'VE SAID
21 ABOUT YOU CAN'T FORM OR EXPRESS AN OPINION, THAT'S WHEN YOU
22 CAN FORM OR EXPRESS AN OPINION WHEN YOU GET IN THE JURY ROOM
23 AFTER THE CLOSING ARGUMENTS. AND AT THAT POINT THEN YOU'LL
24 BE IN THE JURY ROOM. YOU'LL HAVE AT THAT POINT THE BAILIFF
25 OUTSIDE THE DOOR AND NO ONE WILL BE CONTACTING YOU. WE'LL
4257
1 PROVIDE LUNCH OR MEALS FOR YOU AS NEEDED. I'M SURE THERE
2 WILL BE A LUNCH PROVIDED SIMPLY BECAUSE BY THE TIME OF THE
3 JURY INSTRUCTIONS AND CLOSING ARGUMENT IT MAY BE LUNCHTIME.
4 SO WE'LL PROVIDE THAT. AND THEN YOU WILL CONTINUE. WE'LL
5 PROVIDE MEALS. AND WE'LL GO UNTIL THAT -- UNTIL YOU'VE
6 RESOLVED THE CASE.
7 SO WHAT I'M GOING TO DO RIGHT NOW IS ALLOW YOU TO GO
8 FOR THE WEEKEND. OBVIOUSLY, AS YOU ARE GOING FOR THE
9 WEEKEND, I HAVE SAID WE DON'T WANT TO HAVE FIVE WEEKS OF
10 WORK GO IN VAIN. AND THE WAY I DON'T HAVE FIVE WEEKS OF
11 WORK GO IN VAIN IS THAT YOU DON'T LISTEN TO ANY RADIO OR
12 TELEVISION NEWS REPORTS. YOU DON'T LISTEN TO ANY -- READ
13 ANY NEWSPAPER ARTICLES. YOU DON'T HAVE FRIENDS, NEIGHBORS,
14 RELATIVES, CHURCH MEMBERS, BUSINESS ASSOCIATES, HUSBANDS,
15 WIVES, CHILDREN COME UP TO YOU AND SAY, GEE, WHAT DO YOU
16 THINK YOU ARE GOING TO DO. YOU KNOW, YOU ARE GOING TO SAY,
17 WELL, I WON'T KNOW WHAT I'M GOING TO DO UNTIL I GET THERE ON
18 MONDAY AND WE CAN TALK ABOUT THE CASE. BUT UNTIL THEN YOU
19 CAN'T SEE IT, HEAR IT OR SPEAK ABOUT IT. SO REMEMBER THAT
20 DURING THIS WEEKEND.
21 REMEMBER ALSO NOT TO CONVERSE AMONG YOURSELVES OR WITH
22 ANYONE REGARDING THE SUBJECT OF THIS TRIAL. AND EVEN THOUGH
23 YOU'VE HEARD ALL OF THE EVIDENCE, STILL IT'S YOUR DUTY NOT
24 TO FORM OR EXPRESS AN OPINION UNTIL THE CASE IS FINALLY
25 SUBMITTED TO YOU. THAT WILL BE AFTER THE INSTRUCTIONS ON
4258
1 MONDAY AND THE CLOSING ARGUMENTS. THAT'S WHEN YOU CAN THEN
2 CONSIDER THIS.
3 SO I APPRECIATE, AGAIN, AS I'VE TOLD THE JURY -- I'VE
4 TOLD YOU AND I'VE ALSO TOLD COUNSEL AND BOTH PARTIES HOW
5 VERY MUCH APPRECIATE YOUR ATTENTIVENESS DURING THIS TRIAL
6 HAS BEEN. AND SO WE'LL SEE YOU AT 8:30 ON MONDAY. HAVE A
7 GOOD WEEKEND.
8 (JURY LEAVES THE COURTROOM AT 11:30.)
9 THE COURT: PLEASE BE SEATED. THE RECORD WILL
10 REFLECT THAT THE JURY HAS LEFT. WHAT I WOULD PROPOSE DOING
11 IS WE NEED TO TALK ABOUT THESE OTHER EXHIBITS AND WE NEED TO
12 TALK ABOUT THE JURY INSTRUCTIONS. WE'LL TAKE A BREAK NOW.
13 HOW LONG DO YOU THINK IT'S GOING TO TAKE US TO GO OVER THE
14 INSTRUCTIONS AND THE JURY INSTRUCTIONS, YOUR OBJECTIONS AND
15 ANY ARGUMENT ABOUT THOSE OR THE EXHIBITS?
16 MR. WILSON: WELL, I GUESS, YOUR HONOR, WE'VE BEEN
17 IN THE PROCESS OF PREPARING -- AFTER WE GOT THE INSTRUCTIONS
18 YESTERDAY WE'VE BEEN IN THE PROCESS OF PREPARING SOME
19 ALTERNATIVE INSTRUCTIONS WE'D LIKE TO SUBMIT TO THE COURT.
20 I WOULD LIKE TO GET THOSE TO THE COURT PROBABLY WITHIN ABOUT
21 AN HOUR, AND TO COUNSEL, SO THAT THE COURT WOULD HAVE AN
22 OPPORTUNITY TO REVIEW THEM BEFORE WE ARGUE THEM.
23 AS I INDICATED EARLIER, I WOULD LIKE AN OPPORTUNITY TO
24 SPEAK WITH COUNSEL ABOUT THE OTHER EXHIBITS AND SEE IF WE
25 CAN RESOLVE THAT WITHOUT THE NECESSITY OF FURTHER ARGUMENT.
4259
1 I THINK --
2 THE COURT: WE'LL SEE --
3 MR. WILSON: GIVE US A COUPLE OF HOURS.
4 THE COURT: HERE'S WHAT I'M WORKING ON. MY
5 SITUATION IS THAT ONCE WE GET THE JURY INSTRUCTIONS, I'M NOT
6 GOING TO -- ALL THE STAFF THAT HAVE WORKED ON THIS, THE LAW
7 CLERK AND EVERYONE ELSE, THEY ARE ENTITLED TO A LIFE ON THE
8 WEEKEND. I'M NOT GOING TO HAVE THEM GET JURY INSTRUCTIONS
9 AT FIVE O'CLOCK AND MAKE THEM STAY HERE OVERNIGHT OR ON
10 WEEKENDS. I WANT THE JURY INSTRUCTIONS DONE AT A POINT THAT
11 IF THERE HAS TO BE SOME CHANGES THEY CAN DO THEM BEFORE FIVE
12 O'CLOCK AND HAVE THEM DONE SO THEY ARE NOT HERE AFTER HOURS
13 OR WEEKENDS. SO IF WE COME BACK AT 1:30 I HAVE NO PROBLEM
14 WITH THAT, BUT WE'RE GOING TO HAVE TO BE DONE BY AROUND 3:30
15 OR FOUR.
16 MR. WILSON: I THINK THAT'S FEASIBLE, YOUR HONOR.
17 MR. STIRBA: I THINK THAT'S REASONABLE. IT WILL
18 TAKE SOME TIME.
19 THE COURT: WE'LL TAKE WHATEVER TIME IT TAKES. ALL
20 I'M SAYING IS THAT IF IT'S GOING TO TAKE MORE TIME I'D
21 RATHER START AT ONE INSTEAD OF 1:30, BECAUSE I WANTED TO BE
22 DONE SO THAT IF WE HAVE TO MAKE ANY CHANGES WE CAN MAKE
23 THOSE CHANGES.
24 OKAY. LET'S COME BACK AT 1:30.
25 MR. MAY: YOUR HONOR, WE DO HAVE SOMETHING TO
4260
1 SUBMIT ON THE JURY INSTRUCTIONS.
2 THE COURT: ALL RIGHT. OKAY. THANK YOU.
3 (COURT IN RECESS.)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
4261
1 (WHEREUPON THE AFTERNOON SESSION BEGINS.)
2 THE COURT: OKAY. THE RECORD SHOULD REFLECT THAT
3 WE'RE OUTSIDE THE PRESENCE OF THE JURY TO DISCUSS JURY
4 INSTRUCTIONS, EXHIBITS, AND ANY OTHER THINGS THAT WE NEED TO
5 DISCUSS BEFORE WE GIVE THE JURY INSTRUCTIONS AND HAVE
6 CLOSING ARGUMENTS. I'VE RECEIVED SOME ADDITIONAL JURY
7 INSTRUCTIONS FROM THE STATE. I'VE ALSO RECEIVED THREE
8 MEMORANDA REGARDING REASONABLE HYPOTHESIS JURY INSTRUCTION,
9 THE REPLACEMENT INSTRUCTION DEFINING CALLOUSLY, AND THE
10 OTHER MEMORANDUM ON LESSER INCLUDED OFFENSES. AND SO WHAT I
11 THOUGHT WE MIGHT DO, I'VE PREVIOUSLY GIVEN THE ATTORNEYS
12 SOME JURY INSTRUCTIONS THAT WERE LABELED NUMBER 1 THROUGH
13 59, AND PERHAPS THE BEST WAY, UNLESS SOMEBODY HAS ANOTHER
14 SUGGESTION, IS JUST TO GO THROUGH THOSE AND WHEN WE GET TO A
15 POINT WHERE WE NEED TO HAVE ANY DISCUSSION OR ANY OBJECTIONS
16 OR ARGUMENTS, THAT WE GO THROUGH THAT, UNLESS SOMEBODY HAS
17 SOME OTHER IDEA THAT THEY'D LIKE TO DO.
18 MR. MAY: THAT WOULD BE FINE, JUDGE.
19 MR. MAJOR: THAT'S FINE, YOUR HONOR.
20 THE COURT: OKAY. THEN GOING WITH THE INSTRUCTIONS
21 THAT I GAVE YOU BEFORE, TELL ME WHERE THE FIRST OBJECTION
22 IS. I MEAN THE --
23 MR. MAJOR: YOUR HONOR, I THINK STATE HAS SOME. I
24 DON'T KNOW IF THEY'RE ACTUALLY OBJECTIONS. I THINK WE JUST
25 HAVE SOME IRRELEVANT CHANGES. THE FIRST ONE WE WOULD LOOK
4262
1 AT WOULD BE INSTRUCTION NUMBER 23, YOUR HONOR.
2 THE COURT: OKAY. BEFORE INSTRUCTION 23, ARE THERE
3 ANY ONES THAT WE NEED TO DISCUSS?
4 MR. MAY: YES, YOUR HONOR. THE INSTRUCTION NUMBER
5 4, FIRST OF ALL, WE HAVE, AS YOU MENTIONED, WE SUBMITTED
6 A --
7 THE COURT: OKAY.
8 MR. MAY: -- DIFFERENT DEFINITION FOR CALLOUSLY --
9 THE COURT: OKAY. SO IS THERE ANY OBJECTION TO 1
10 THROUGH 3?
11 MR. MAJOR: NO, NOT FROM THE STATE.
12 THE COURT: OKAY. THEN ON INSTRUCTION NUMBER 4,
13 THE DEFENDANT'S OBJECTION RELATES TO THE DEFINITION OF
14 CALLOUSLY.
15 MR. MAY: CORRECT, YOUR HONOR.
16 THE COURT: OKAY. WHAT IS THE POSITION OF THE
17 STATE ON --
18 MR. MAJOR: WAIT A SECOND, YOUR HONOR.
19 MR. MAY: YOUR HONOR, ALSO I'LL JUST NOTE THAT
20 THERE WILL BE AN OBJECTION TO THE MANSLAUGHTER, NEGLIGENT
21 HOMICIDE, THE LESSER INCLUDES --
22 THE COURT: RIGHT.
23 MR. MAY: -- ON THAT SAME, BUT I'M SURE WE'LL GET
24 TO THAT.
25 MR. MAJOR: I DON'T THINK WE HAVE AN OBJECTION TO
4263
1 THEIR DEFINITION OF CALLOUSLY, YOUR HONOR.
2 THE COURT: OKAY. THEN, WE'LL MAKE A CHANGE THEN.
3 AN CALLOUSLY WILL -- IT'LL STILL BE ON INSTRUCTION NUMBER 4,
4 IT WON'T BE A SEPARATE INSTRUCTION, BUT IT WILL BE INCLUDED
5 AS THE INSTRUCTION. IT'LL JUST INCLUDE THAT DEFINITION OF
6 CALLOUSLY FROM THE DEFENDANT'S MEMORANDUM.
7 OKAY. WELL, BECAUSE THAT OTHER ISSUE REGARDING LESSER
8 INCLUDED OFFENSES GOES THROUGH THE DEFINITIONS IN
9 INSTRUCTION NUMBER 4 AS WELL AS ALL OF THE ELEMENT
10 INSTRUCTIONS THEREAFTER, BEFORE WE GET UP TO 26, AND WHY
11 DON'T WE DISCUSS THAT. THE DEFENDANTS HAVE FILED A
12 MEMORANDUM REGARDING JURY INSTRUCTIONS ON LESSER INCLUDED
13 OFFENSES. AND I'VE READ THAT, SO IF YOU WANT TO DISCUSS
14 THAT.
15 MR. MAY: I WILL, YOUR HONOR. I THINK MOST OF THIS
16 STUFF IS PRETTY WELL LAID OUT IN THE MEMORANDUM.
17 SPECIFICALLY, AND WE ARGUED THIS ON MONDAY AS WELL, BUT THE
18 STATE IN REQUESTING A LESSER INCLUDED INSTRUCTION HAS THE
19 BURDEN OF SHOWING, NUMBER ONE, THAT THE -- ALL OF THE
20 ELEMENTS OF THE LESSER INCLUDED CRIMES ARE INCLUDED IN THE
21 HIGHER CRIME WHICH IN THIS CASE WOULD BE MURDER.
22 NUMBER 2, THEY ALSO HAVE TO SHOW THAT THE EVIDENCE
23 PRESENTED IN THE CASE WOULD SUPPORT SUCH A FINDING BY THE
24 JURY. AND AGAIN IN THIS CASE, WE SIMPLY DON'T THINK THAT
25 THE STATE CAN MEET EITHER OF THOSE BURDENS. FIRST OF ALL,
4264
1 IN TERMS OF THE ELEMENTS BEING THE SAME, THE NEGLIGENT
2 HOMICIDE LESSER INCLUDED AND THE MANSLAUGHTER LESSER
3 INCLUDED WOULD BOTH REQUIRE A SHOWING THAT THE DEFENDANT
4 DEVIATED FROM A STANDARD OF CARE.
5 NOW, IN THIS CASE WE -- IN THIS -- UNDER THE FACTS OF
6 THIS CASE WHERE WE HAVE A DOCTOR, THE STANDARD OF CARE JUST
7 SIMPLY ISN'T AN ELEMENT OF MURDER. AND SO THERE'S ALSO --
8 THERE'S ALSO BEEN NO EVIDENCE OF STANDARD OF CARE ISSUES,
9 AND THIS SPECIFICALLY AROSE IN RESPONSE TO THE DEFENDANT'S
10 FILING A MOTION ON THE LIMITING THE TESTIMONY OF THE
11 PLAINTIFF'S EXPERTS AND THIS -- WE HAD THE ARGUMENT ON THIS
12 IN THE MORNING OF JUNE 22ND BEFORE ANY OF PLAINTIFF'S
13 EXPERTS TESTIFIED. AND AT THAT --
14 THE COURT: WEREN'T WE TALKING ABOUT RULE 704?
15 MR. MAY: WE WERE.
16 THE COURT: WHEN WE WERE TALKING ABOUT KNOWLEDGE --
17 MR. MAY: CORRECT.
18 THE COURT: -- AND I'M LOOKING BACK -- I'VE HAD TO
19 FROM TIME TO TIME DURING THIS CASE WRITE DOWN EVERYTHING
20 THAT I'VE RULED SO THAT WHEN IT'S RE-BROUGHT UP TO ME, I
21 COULD GO BACK TO MY LIST TO SAY WHAT HAVE I RULED. AND I'M
22 LOOKING AT THAT RULE 704 DISCUSSION. AND THE THINGS THAT I
23 RULED WERE, YOU KNOW, WHETHER DR. WEITZEL'S CARE CAUSED OR
24 DIDN'T CAUSE THE DEATH OF THE FIVE PATIENTS. WHETHER HIS
25 CARE AND TREATMENT OF THOSE PATIENTS WAS OR WASN'T
4265
1 APPROPRIATE. I DID SAY THAT THEY COULD TESTIFY AS TO
2 WHETHER HE KNEW OR DIDN'T KNOW OR COULD -- SHOULD HE HAVE
3 KNOWN BUT --
4 MR. MAY: CORRECT.
5 THE COURT: -- ISN'T STANDARD OF CARE WHETHER THE
6 CARE AND TREATMENT OF PATIENTS WAS OR WASN'T APPROPRIATE?
7 HAVEN'T WE HAD EVIDENCE THE DEFENSE -- THE PLAINTIFF'S
8 EXPERTS SAYING THAT, NO, THIS WASN'T AN APPROPRIATE DOSAGE,
9 THIS WASN'T APPROPRIATE TREATMENT?
10 MR. MAY: WELL, IN TERMS -- WE HAVE HAD SOME
11 EVIDENCE OF OBVIOUSLY EXPERTS COMING AND TESTIFYING ABOUT,
12 YOU KNOW, WHAT WAS PROPER DOSING AND WHATNOT. BUT I DON'T
13 THINK IT HAS BEEN SPECIFIC AS TO STANDARD OF CARE IN THIS
14 CASE. AND REALLY I THINK HOW IT WOULD HAVE BEEN DIFFERENT,
15 JUDGE, IF I MIGHT BACK UP JUST A LITTLE AND GET THERE, YOU
16 KNOW, THE END AROUND, IN MAKING THE COURT'S RULING ON THE
17 22ND, WE TALKED ABOUT THAT THE QUESTIONS WOULD NOT BE
18 PERMITTED TO BE PUT WHAT A DOCTOR SHOULD KNOW OR WHAT A
19 DOCTOR WOULD KNOW. AND THOSE OBVIOUSLY, UNDER THE STATE V.
20 WARDEN CASE, WHICH I DO BELIEVE THE -- IN THE COURT'S JURY
21 INSTRUCTIONS THAT WERE HANDED OUT YESTERDAY, AND THAT
22 CRIMINAL NEGLIGENCE DEFINITION IN THERE --
23 THE COURT: RIGHT.
24 MR. MAY: -- I THINK COMES FROM STATE --
25 THE COURT: YES.
4266
1 MR. MAY: -- VERSUS WARDEN. STATE VERSUS WARDEN
2 REQUIRES THAT THE STATE SHOW THAT, YOU KNOW, WHAT A DOCTOR
3 WOULD HAVE KNOWN OR SHOULD HAVE KNOWN. AND WHEN WE ARGUED
4 THIS MOTION ON THE EXPERT WITNESSES, THAT WAS SPECIFICALLY
5 BROUGHT UP AND AT THAT TIME, THE STATE COULD HAVE SAID,
6 WELL, YOU KNOW, YOUR HONOR, WE DO -- WE DO ANTICIPATE AT THE
7 END OF THE CASE POSS -- EVEN POSSIBLY FILING A -- OR
8 REQUESTING A LESSER INCLUDED ON NEGLIGENT HOMICIDE. BUT
9 THAT WASN'T DISCUSSED. RATHER, THE DISCUSSION FOCUSSED ON
10 THE MENTAL OR THE INTENT ELEMENT OF MURDER, AND REALLY I
11 THINK MOST OF IT FOCUSSED ON THE DEPRAVED INDIFFERENCE. BUT
12 AGAIN, IT WASN'T BROUGHT UP, THE NEGLIGENT HOMICIDE
13 INSTRUCTION, AND THAT ACTUALLY WASN'T BROUGHT UP UNTIL
14 JUNE 22ND, THAT MORNING.
15 THE COURT: OKAY. BUT IS THERE ANYTHING -- I MEAN
16 I UNDERSTAND THAT, YOU KNOW, I THOUGHT WE STARTED OUT AS A
17 MURDER CASE AND THEN BEFORE TRIAL WE HAD AN INSTRUCTION THAT
18 THEY WERE GOING TO ASK OR SEEK FOR AN INSTRUCTION BEFORE THE
19 TRIAL BEGAN OF MANSLAUGHTER. AND IT'S TRUE, IT STARTED LATE
20 IN THE GAME, BUT AS -- I DON'T READ ANYTHING IN ANY OF THE
21 CASES THAT SAY, IF THEY BRING IT UP AT THE VERY LAST MINUTE,
22 YOU KNOW, IS THERE TIMING -- I MEAN BESIDES YOU'RE SAYING
23 WHETHER YOU CAN RESPOND TO IT, ET CETERA.
24 MR. MAY: CORRECT.
25 THE COURT: BUT I MEAN BESIDES THAT, IS -- IS
4267
1 TIMING, JUST BECAUSE THEY'RE LATE IN TIMING, DOES THAT
2 PRECLUDE THEM?
3 MR. MAY: I -- WE WOULD ARGUE THAT IT DOES. AND
4 THE THIRD POINT IN THE MEMORANDUM THAT WE FILED, JUDGE, I --
5 WAS -- INTENDED TO GO TO THAT ISSUE. SPECIFICALLY, WE CITE
6 IN THE STATE VERSUS DAY CASE IN THAT COURT, AND THERE THE
7 UTAH COURT OF APPEALS STATED THAT A TRIAL COURT MAY PROPERLY
8 GIVE A LESSER INCLUDED OFFENSE INSTRUCTION IF THERE IS
9 CLEARLY NO RISK THAT THE DEFENDANT WILL BE PREJUDICED BY A
10 LACK OF NOTICE AND PREPARATION. AND IN THIS CASE, I THINK
11 THAT THE DEFENDANT WOULD CLEARLY BE PREJUDICED. AND WE --
12 WE HAVEN'T GONE INTO ISSUES WITH OUR EXPERTS SPECIFICALLY
13 ABOUT WHAT A DOCTOR WOULD OR SHOULD KNOW ABOUT STANDARD OF
14 CARE SPECIFICALLY AS IT RELATES TO A MANSLAUGHTER OR A --
15 MORE PARTICULARLY, NEGLIGENT HOMICIDE DEFENSE. YOU KNOW, A
16 LOT THROUGH THIS CASE WE'VE BEEN TALKING ABOUT THIS CASE,
17 BECAUSE IT WAS A MURDER CASE, IT WASN'T THE CRIMINALIZATION
18 OF MALPRACTICE OR NEGLIGENCE ISSUES. WE'VE NEVER BEEN
19 FOCUSSING AS A DEFENSE ON NEGLIGENT HOMICIDE. AND I THINK
20 AT THIS POINT, IT WOULD BE -- IT WOULD GREATLY PREJUDICE THE
21 DEFENSE. AND AGAIN, THE SHOWING HAS TO BE THAT THERE'S
22 CLEARLY NO RISK TO DEFENDANT. AND I SIMPLY DON'T THINK THAT
23 THE STATE CAN SHOW IN THIS CASE THAT THERE'S CLEARLY NO RISK
24 THAT THE DEFENDANT WOULD BE PREJUDICED BY SUCH AN
25 INSTRUCTION.
4268
1 AND AGAIN, RETURNING -- RETURNING TO THE STATE'S BURDEN
2 TO SHOW THAT THE FACTS SUPPORT -- WOULD SUPPORT A LESSER
3 INCLUDED OFFENSE IN THIS CASE, I DON'T THINK THAT THERE'S
4 BEEN ANY EVIDENCE THAT THE DEFENDANT SHOULD HAVE BUT FAILED
5 TO PERCEIVE ANY CERTAIN RISKS. AND WE HAVEN'T GOT INTO WHAT
6 IS A GROSS DEVIATION FROM A STANDARD OF CARE LET ALONE, YOU
7 KNOW, SPECIFICALLY FOCUSSING ON STANDARD OF CARE FOR
8 PURPOSES OF THESE LESSER INCLUDEDS.
9 AND FOR THOSE REASONS, WE THINK THAT THE -- THE LESSER
10 INCLUDEDS SHOULD NOT BE GIVEN BECAUSE NUMBER -- AGAIN, THE
11 ELEMENTS ARE SIMPLY THE SAME IN THIS CASE WHERE WE HAVE A
12 DOCTOR AND MEDICAL -- IT'S REALLY A MEDICAL STANDARD OF CARE
13 RATHER, YOU KNOW, THAN ORDINARY PERSON TYPE STANDARD OF
14 CARE. AND THE EVIDENCE IN THE CASE WOULD NOT SUPPORT SUCH A
15 FINDING, EVEN IF THE INSTRUCTIONS WERE TO BE GIVEN SO REALLY
16 THERE'S NO -- THERE'S NO PURPOSE TO GIVE THOSE. AND THE
17 JURY HASN'T RECEIVED OR BEEN -- HAD EVIDENCE GIVEN IT --
18 GIVEN TO IT ABOUT WHAT IS A SUBSTANTIAL OR UNJUSTIFIABLE
19 RISK, WHAT DR. WEITZEL SHOULD HAVE PERCEIVED, AND THEREFORE,
20 I THINK THAT THEY'D BE DECIDING THESE ISSUES IN A VACUUM.
21 THE COURT: OKAY. WHO WANTS DISCUSS THIS FROM THE
22 STATE?
23 MR. MAJOR: JUST BRIEFLY, YOUR HONOR.
24 THE COURT: GO AHEAD.
25 MR. MAJOR: I BRIEFED THE CASE LAW THAT WE'VE
4269
1 INDICATED HERE IN THE STATE VERSUS CARRUTH, YOUR HONOR,
2 WHICH ALLOWS THAT. I THINK THE MAIN ARGUMENT THAT THE STATE
3 WOULD MAKE HERE IS THAT IF THE STATE HAS PROVED DEPRAVED
4 INDIFFERENCE, THEN BY -- I THINK BY NECESSITY, WE'VE PROVED
5 THE LESSER OF THE RECKLESSNESS OR THE NEGLIGENT HOMICIDE
6 TYPE OF A SITUATION. I MEAN THEY ALL ARE JUST ON THE SAME
7 KIND OF -- I GUESS YOU'D SAY KIND OF A SLIDING SCALE AS TO
8 WHAT THE DEFENDANT KNEW WHAT THE STANDARD IS OR ALL -- I
9 MEAN YOU CAN'T DEPRIVE -- DECIDE DEPRAVED INDIFFERENCE
10 WITHOUT HAVING TO LOOK AT THE STANDARD OF CARE BECAUSE HE
11 WENT SO FAR BEYOND THAT STANDARD OF CARE. I DON'T THINK
12 WAS -- YOU CAN DISTINGUISH BETWEEN NEGLIGENT HOMICIDE AS
13 BEING ONE -- ONE STANDARD OF CARE AND DEPRAVED INDIFFERENCE
14 NOT BE A STANDARD OF CARE. I THINK THE CASE LAW IS VERY
15 STRAIGHTFORWARD THAT THESE ARE LESSER INCLUDEDS OF DEPRAVED
16 INDIFFERENCE TYPE OF HOMICIDE. AS A MATTER OF FACT, I
17 BELIEVE, YOUR HONOR, THAT WE -- THAT THE STATE HAS PROVED,
18 YOU KNOW, AS THE COURT'S MENTIONED, WE'VE BEEN TALKING AT
19 SOME LENGTH ABOUT WHAT SHOULD THIS DOCTOR HAVE DONE, WHAT
20 WOULD A DOCTOR DO IN THIS CASE, WOULD THEY HAVE GIVEN A
21 10-MILLIGRAM SHOT? WOULD THEY HAVE TRIED SOME OTHER TYPE OF
22 MEDICATIONS. I MEAN WE'VE HAD NUMEROUS WITNESSES TESTIFY
23 ABOUT THIS TYPE OF A STANDARD OF CARE. I THINK IT'S THERE.
24 AND I THINK THE JURY COULD LOOK AT IT AND DETERMINE AT WHAT
25 LEVEL DEFENDANT'S KNOWLEDGE OF WHAT LEVEL DEFENDANT'S
4270
1 ACTIONS FALL, AND I THINK WE HAVE.
2 AS FAR AS THE TIMING IS CONCERNED, YOUR HONOR, I MEAN I
3 THINK THE CASE LAW IS FAIRLY SPECIFIC, YOU KNOW, THAT THESE
4 ARE LESSER INCLUDED AND DEFENDANT'S ON NOTICE ONCE WE'VE
5 CHARGED DEPRAVED INDIFFERENCE FROM THOSE OTHER -- OTHER
6 STATUTES COULD BE MET.
7 TECHNICALLY, YOUR HONOR, AT THE END OF THE STATE'S
8 CASE, THE COURT COULD HAVE RULED THEY FIND THERE'S NO
9 DEPRAVED INDIFFERENCE, I FIND NEGLIGENT HOMICIDE, AND I'M
10 SENDING IT TO THE JURY AS NEGLIGENT HOMICIDE. THOSE ARE ALL
11 WITHIN THAT SAME STANDARD BECAUSE IT'S A SLIDING SCALE FROM
12 THE STANDARD OF CARE TO NEGLIGENT HOMICIDE TO RECKLESSNESS
13 TO DEPRAVED INDIFFERENCE. AND I THINK THEY ALL FALL WITHIN
14 ONE PARTICULAR CRIME. AND WE'D SUBMIT IT ON THAT, YOUR
15 HONOR.
16 THE COURT: OKAY. IS THERE ANYTHING FURTHER?
17 MR. MAY: JUST AGAIN, YOUR HONOR, WE EMPHASIZE THAT
18 IN THIS CASE, UNDER THE SPECIFIC FACTS OF THIS CASE, WE'RE
19 COMPLETELY AWARE OF THE, YOU KNOW, WHAT THE PLAINTIFF REFERS
20 TO AS THE SLIDING SCALE, THAT DEFINITIONS UNDER 76-2-103,
21 WHICH DEFINES RECKLESSLY AND CRIMINAL NEGLIGENCE AND ALSO
22 THE, YOU KNOW, THERE'S A STATUTORY REFERENCE ABOUT CERTAIN
23 LESSER INCLUDEDS BEING, YOU KNOW, INVOLVED IN KNOWINGLY AND
24 INTENTIONALLY. HOWEVER, IN THIS CASE WHERE WE HAVE A
25 DOCTOR, IT'S NOT AN ORDINARY PERSON'S STANDARD OF CARE, AND
4271
1 SO WE DIDN'T THINK THE SAME RULES APPLY. AND THAT THERE --
2 UNDER THE FACTS OF THIS CASE, THERE -- SIMPLY THE STANDARD
3 OF CARE ISSUE IS NOT INCLUDED IN THE MURDER KNOWING OR
4 INTENTIONAL OR DEPRAVED INDIFFERENCE, AND THEREFORE,
5 RESPECTFULLY, YOUR HONOR, WE'D -- WE THINK THAT IT WALKS THE
6 LINE OF -- IT WOULD BE ERROR TO GIVE THOSE INSTRUCTIONS.
7 THE COURT: OKAY. WELL, WE KNOW THAT'S -- THAT'S
8 THE REAL FUN ABOUT BEING A TRIAL JUDGE. YOU GET TO MAKE
9 ERRORS ALL THE TIME.
10 MR. MAY: I UNDERSTAND, YOUR HONOR.
11 THE COURT: SO HAVING SAID THAT, I'M GONNA HAVE --
12 I DO BELIEVE THAT IT WOULD BE ERROR NOT GIVING THE LESSER
13 INCLUDED OFFENSES. SO YOU'VE MADE YOUR OBJECTIONS, AND IF
14 IT'S -- THERE'S A CONVICTION AND THERE'S AN ERROR ON THAT,
15 THE SUPREME COURT WILL LET US KNOW. SO I'M GOING TO -- SO
16 THE INSTRUCTION NUMBER 4 WILL INCLUDE MANSLAUGHTER,
17 NEGLIGENT HOMICIDE.
18 HAVING RULED WHAT I'VE RULED, DOES THAT CHANGE ANYTHING
19 UP TO -- YOU'RE STILL ON NUMBER 26? OR ARE YOU ON --
20 MR. MAJOR: NO, I -- I JUST WANTED TO RAISE WITH
21 THE COURT, WE MAY WANNA -- WE MAY BE PROPOSING AN AMENDMENT
22 TO THE MANSLAUGHTER STATUTE. IT HAS TO GO WITH SOME LATER
23 ARGUMENTS. WE THINK THERE'S ANOTHER ELEMENT OF MANSLAUGHTER
24 THAT WE MAY WANNA ADD TO THAT. WE CAN -- WE'LL DISCUSS THAT
25 LATER AS WE GO.
4272
1 THE COURT: OKAY.
2 MR. MAJOR: I JUST WANT THE COURT TO BE AWARE OF
3 THAT.
4 THE COURT: ALL RIGHT. IS THERE ANYTHING ELSE,
5 THOUGH, ON THE INSTRUCTIONS BEFORE NUMBER 26 AS TO WHAT --
6 WELL --
7 MR. MAJOR: 23, YOUR HONOR.
8 THE COURT: -- OR 23. OKAY.
9 MR. MAY: YES, YOUR HONOR. WE -- WE HAD RAISED ON
10 MONDAY IN THE -- IT'S SPECIFICALLY UNDER THE MURDER STATUTE,
11 THE DEFINITION OR THE APPLICATION OF THE TERM KNOWINGLY IN
12 THIS CASE. GIVEN THE TESTIMONY, AND IT'S PRETTY CLEAR A
13 PHYSICIAN'S ETHICAL DUTY TO PROVIDE PAIN TREATMENT IN THE
14 DYING STAGES TO A PATIENT, EVEN IF THE DOCTOR KNOWS THAT
15 THAT TREATMENT MAY HASTEN DEATH. SO WE THINK THAT THERE'S A
16 FUNDAMENTAL CONFLICT IN THIS CASE BETWEEN A PHYSICIAN'S
17 ETHICAL DUTY, WHICH IS RECOGNIZED BY THE A.M.A. AND WE'VE
18 HEARD TESTIMONY FROM MANY DOCTORS, BUT ONE DR. HARE, FOR
19 INSTANCE, TESTIFIED BOTH DURING THE CASE IN CHIEF ON
20 CROSS-EXAMINATION AND AGAIN IN REBUTTAL CASE ON
21 CROSS-EXAMINATION THAT HE AGREES THAT A PHYSICIAN HAS THOSE
22 DUTIES. I THINK IN THIS CASE, YOU KNOW, THERE'S -- THERE'S
23 SEVERAL INSTRUCTIONS THAT REFERENCE THE KNOWINGLY. IT'S
24 REFERENCED IN INSTRUCTION 5, 8, 11 --
25 THE COURT: NO, IT'S THROUGHOUT ALL OF THEM.
4273
1 MR. MAY: YEAH. AND SO AGAIN, WE -- WE RAISED THAT
2 WITH THE COURT ON MONDAY.
3 THE COURT: BUT DOESN'T YOUR 53 -- I MEAN WHAT I
4 DID, I UNDERSTOOD FROM WHAT YOU SAID, BUT I ALSO GAVE YOUR
5 53 THAT SAYS A PHYSICIAN, YOU KNOW, MAY GIVE THIS EVEN IF
6 IT'S -- MAY HASTEN DEATH. BUT THAT DOESN'T MAKE HIM, YOU
7 KNOW, THE SECOND PARAGRAPH OF YOUR 53 --
8 MR. MAY: CORRECT. WE -- WE WOULD STILL THINK THAT
9 IT CONFLICTS --
10 THE COURT: OKAY. WHAT IS THE STATE'S --
11 MR. MAJOR: WE DO HAVE OBJECTION TO THE 53, YOUR
12 HONOR, AS THE KNOWLEDGE, AND I THINK THAT'S SOMETHING WE CAN
13 TALK ABOUT IN THIS WHOLE AREA. BASICALLY, WE'RE TALKING
14 ETHICS VERSUS THE LAW. I THINK THAT'S SOMETHING WE'LL GET
15 TO WHEN WE GET DOWN TO 53.
16 THE COURT: WELL, WE'RE TALKING ABOUT WHETHER
17 KNOWINGLY OUGHT TO BE IN ALL OF THE COUNTS --
18 MR. MAJOR: RIGHT.
19 THE COURT: -- AND SO WHAT IS YOUR POSITION --
20 MR. MAJOR: OUR POSITION IS THAT IT NEEDS TO BE IN
21 THE COUNTS AS IT IS. WHEN WE GET DOWN TO 53, I THINK WE'RE
22 GONNA BE TALKING ABOUT THIS THING ABOUT THE A.M.A. WITH
23 WHETHER ETHICS OVERRULES THE CODE -- CODIFIED STATE LAW,
24 WHETHER -- THOSE TYPE OF THINGS. WE DO HAVE OBJECTIONS TO
25 ALL OF THOSE INSTRUCTIONS AFTER 53. AND WE DO HAVE
4274
1 OBJECTION TO THEIR -- THEIR POSITION AS FAR AS KNOWINGLY IS
2 CONCERNED.
3 THE COURT: OKAY. WHAT IS THE POSITION ABOUT
4 KNOWINGLY?
5 MR. MAJOR: WELL, YOUR HONOR, UNDER THE -- UNDER
6 CRIMINAL CASE, UNDER STATE CODE, WE DON'T -- WE DEAL WITH
7 WHAT THE LAW -- WE INSTRUCT THE JURY AS TO WHAT THE LAW IS,
8 WHAT THE LAW AND THE CODE -- CODIFICATION OF THE LAW, WHAT
9 THE STATE'S SAYING, WHAT THE CASE LAW SAYS. THERE'S NOTHING
10 ANYWHERE IN THE CODE THAT INDICATES THE A.M.A.'S ETHICAL
11 DUTIES ARE THE LAW. I MEAN, IF THERE'S A JUSTIFICATION FOR
12 WHAT THE DOCTOR DOES BASED ON THOSE ETHICS, THEN IT HAS TO
13 BE SOMEWHERE WITHIN THE CODE. AND WE WANNA ADDRESS THAT
14 LATER ON DOWN THE ROAD. BUT IT'S KIND OF LIKE THE CODE OF
15 ETHICS FOR AN ATTORNEY, THAT DOESN'T SUPERSEDE WHAT THE LAW
16 IS. AND THE A.M.A. MAY HAVE CERTAIN ETHICAL CODES THAT
17 PROTECT A DOCTOR FROM MALPRACTICE SUITS OR MAYBE NOT EVEN
18 MALPRACTICE SUITS BUT FOR LICENSING TYPE SITUATIONS. BUT
19 CERTAINLY THE A.M.A. AND WHAT THE STANDARDS ARE FOR ETHICAL
20 DUTIES OF A DOCTOR DO NOT NECESSARILY COME INTO PLAY IN A
21 CRIMINAL CASE. THEY HAVE TO RELY SOLELY ON THE EVIDENCE OF
22 THE CODE AND WHAT THE STATE LAW HAS. AND OTHER THAN JUST
23 READING ONE PARTICULAR STATEMENT FROM THE A.M.A., THERE'S
24 BEEN NO OTHER EVIDENCE. WE HAVEN'T INTRODUCED THAT LAW,
25 THAT ETHICS INTO THIS CASE. WE HAVEN'T INTRODUCED A
4275
1 DOCUMENT OR WE HAVEN'T INTRODUCED AN ACTUAL A.M.A. BOOK THAT
2 SAYS THIS IS WHAT THE LAW IS AND THIS IS WHAT THE SITUATION
3 IS. SO WE THINK UNLESS THERE'S SOME SHOWING THAT THAT GOES
4 BEYOND -- JUST DON'T GO BEYOND WHAT THE CODE IS, IT'S LIKE
5 THE HOSPITAL POLICIES THAT WE WERE DEALING WITH EARLIER ON.
6 I MEAN IF THEY CONFLICT WITH THE LAW, THEY DON'T SUPERSEDE
7 STATE LAW, SO WE DON'T DEAL WITH THOSE. A.M.A. CODE DOES
8 NOT SUPERSEDE THE STATE LAW. AND I DON'T THINK WE CAN COME
9 IN HERE AND SAY THAT SAYS --
10 THE COURT: NO, I UNDERSTAND WHAT YOU'RE SAYING.
11 IT SEEMS TO ME, THOUGH, THAT THERE ARE SOME CASES THAT THEY
12 CITED WHERE YOU HAVE A DOCTOR AND YOU GET ON THIS ISSUE OF
13 KNOWINGLY WHERE THE DEFINITION SAYS A PERSON ACTS KNOWINGLY
14 WITH RESPECT TO A RESULT OF HIS OR HER CONDUCT WHEN HE IS
15 AWARE THAT THE CONDUCT IS REASONABLY CERTAIN TO CAUSE THE
16 RESULT. AND I MEAN, IS THAT A SITUATION THAT, YOU KNOW,
17 WHEN YOU HAVE A PERSON WHO IS IN A DOCTOR/PATIENT
18 RELATIONSHIP DOING SOMETHING, THAT THAT -- AND THERE IS A
19 CONFLICT THERE, YOU KNOW, THOSE OTHER CASES THAT THEY'VE
20 CITED IN THEIR JURY INSTRUCTIONS HAVE TREATED THAT
21 DIFFERENTLY FOR DOCTORS THAN IT HAS FOR OTHER PEOPLE BECAUSE
22 OF THAT ISSUE.
23 MR. MAJOR: WELL, AND THAT'S WHAT WE HAVE TO LOOK
24 AT AS FAR AS WHETHER THEY'RE UTAH -- DON'T THINK THEY'RE
25 UTAH CASES. I MEAN DIFFERENT STATES HAVE DIFFERENT
4276
1 CODIFICATIONS IN THEIR LAW.
2 THE COURT: WELL, I KNOW, BUT THE PROBLEM WITH HALF
3 OF THE UTAH LAW IS THAT WE DON'T HAVE CASES ON 98 PERCENT OF
4 THE --
5 MR. MAJOR: WELL --
6 THE COURT: -- THINGS THAT YOU'VE --
7 MR. MAJOR: -- AND WHAT I --
8 THE COURT: -- GIVEN ME --
9 MR. MAJOR: -- WHAT I WANTED -- AND WHAT I WOULD
10 LIKE TO DO, YOUR HONOR, IS PERHAPS RESERVE THIS UNTIL WE GET
11 DOWN TO THE OTHER INSTRUCTIONS BECAUSE THEY ALL KIND OF FLOW
12 TOGETHER WHEN WE GET DOWN TO, LIKE YOU SAID, YOUR NUMBER 53
13 AND YOUR NUMBER 54.
14 THE COURT: OH, YEAH, WE'RE GONNA -- I DON'T CARE
15 WHICH WAY WE DO 'EM. OKAY. BESIDES THE KNOWINGLY, IS THERE
16 ANYTHING ELSE IN THE INSTRUCTIONS UP TO 23? I MEAN
17 BASICALLY, THEY'RE GOING -- YOU'VE MADE YOUR OBJECTIONS OF
18 THE MANSLAUGHTER, THE NEGLIGENT HOMICIDE ELEMENTS, AND
19 THAT'S GENERALLY WHAT WE'RE DOING UP THROUGH -- OKAY, UP TO
20 22. THOSE ARE -- DO YOU HAVE ANY OTHER OBJECTIONS?
21 MR. MAY: WITH THE EXCEPTION NOTED TO THE COURT'S
22 RULING.
23 THE COURT: TO THE LESSER INCLUDED OFFENSES?
24 MR. MAJOR: RIGHT.
25 THE COURT: OKAY. OKAY. WHAT DOES THE STATE HAVE
4277
1 ON NUMBER 23?
2 MR. MAJOR: 23, YOUR HONOR, WE'RE SIMPLING
3 REQUESTING WE PULL THAT INSTRUCTION. I THINK THAT WAS OUR
4 JURY INSTRUCTION WE --
5 THE COURT: IT WAS.
6 MR. MAJOR: -- PROPOSED. BUT LOOKING AT IT, WE OF
7 COVERED THAT ALMOST IDENTICAL LANGUAGE IN NUMBER 5,
8 PARAGRAPH 5 OF INSTRUCTION 25. AND I THINK IT'S JUST
9 REDUNDANT AND IT'S ALL PART OF THE --
10 THE COURT: OKAY. SO YOU DON'T WANT THAT?
11 MR. MAY: WELL, I -- YOUR HONOR, BEFORE WE STRIKE
12 IT, I THINK IT'S MORE APPROPRIATE IN THIS CASE TO GIVE
13 INSTRUCTION 23 THAN SUB 5 IN PARAGRAPH -- OR IN INSTRUCTION
14 25. AND I NOTICE ALSO THOSE ARE -- THEY SEEM TO BE
15 REDUNDANT; HOWEVER, IN INSTRUCTION 23 I BELIEVE IS TAKEN
16 FROM STATE VERSUS WARDEN, AND IT'S -- IT'S A CASE THAT
17 SPECIFICALLY DEALT WITH A PHYSICIAN IN A NEGLIGENT HOMICIDE
18 CASE, AND THE COURT CLEARLY LAID OUT OR SAID THAT A DOCTOR
19 MAY BE CRIMINALLY -- AND SO THIS INSTRUCTION IS SPECIFICALLY
20 TAILORED TO A PHYSICIAN, WHEREAS INSTRUCTION NUMBER 25 SUB 5
21 TALKS ABOUT AN ORDINARY PERSON WOULD EXERCISE UNDER THE
22 CIRCUMSTANCES. AND SO I THINK IT'S MORE APPROPRIATE IN THIS
23 INSTANCE TO GIVE THE INSTRUCTION, THE DEFINITION IN -- OF
24 CRIMINAL NEGLIGENCE IN INSTRUCTION 23 THAN IT IS IN
25 INSTRUCTION 25, SUB 5.
4278
1 MR. MAJOR: WELL, YOUR HONOR, WE THINK IT'S
2 COVERED. IF YOU LOOK IN 25 ON THE SECOND PAGE, IT INDICATES
3 AN ORDINARY PERSON WOULD EXERCISE IN ALL OF THE
4 CIRCUMSTANCES AS VIEWED FROM THE ACTOR'S STANDPOINT. SO
5 WHAT THIS DOES -- BECAUSE WE'VE GOT ON HERE, YOU'VE GOT
6 DEPRAVED INDIFFERENCE TO RECKLESSNESS AND CRIMINAL
7 NEGLIGENCE, ALL FOLLOWING THE SAME LANGUAGE. BUT THEN ALL
8 OF THE SUDDEN WE JUST SAY, HEY, WITH CRIMINAL NEGLIGENCE
9 IT'S DIFFERENT BECAUSE WE HAVE THE DOCTOR, BUT WE DON'T ADD
10 TO THE OTHERS. WHAT THIS STATUTE -- I THINK THIS IS THE
11 STANDARD INSTRUCTION THAT'S USED IN ALL OF THESE TYPE OF
12 CASES AND IT TELLS THE JURY, HEY, YOU LOOK AT IT FROM THE
13 ACTOR'S STANDPOINT. YOU LOOK AT IT FROM REASONABLE DOCTOR.
14 AND I THINK IT'S COVERED BY THAT AND GOES INTO THE ARGUMENT.
15 WE'RE JUST SAYING THAT I DON'T THINK -- I THINK THAT WE'RE
16 GONNA -- I THINK WE'RE GONNA CONFUSE THE JURY IF WE HAVE TWO
17 INSTRUCTIONS, DEPRAVED INDIFFERENCE AND RECKLESSNESS THAT
18 DON'T TALK ABOUT DOCTORS AND THAT SUDDENLY COME IN WITH A
19 CRIMINAL NEGLIGENCE AND DO --
20 THE COURT: WELL, DIDN'T YOU ASK YOU FOR THIS?
21 MR. MAJOR: WE DID, BUT WE DIDN'T -- AT THAT POINT
22 IN TIME WE HAD NOT -- WE'D REVIEWED THE CRIMINAL NEGLIGENCE
23 STATUTE THAT WAS -- THAT WAS PLACED IN HERE. THAT'S WHY WE
24 JUST SAY, HEY -- SAYING WE -- WE'RE REQUESTING THAT.
25 THE COURT: OKAY. WELL, I'VE TAGGED THAT ONE.
4279
1 I'LL LOOK AT THAT. OKAY. AFTER 23, SO IT IS AS TO MATTER
2 25, ARE YOU SAYING DON'T HAVE -- IS IT THE DEFENDANT'S
3 POSITION HAVE IT IN NUMBER 23 AND DON'T HAVE IT IN 25?
4 MR. MAY: YOUR HONOR, WE COULD PUT -- WE COULD MOVE
5 23 INTO 25. I THINK THAT WOULD BE APPROPRIATE TO GIVE ALL
6 OF THE INTENTIONALLY, KNOWINGLY, DEPRAVED INDIFFERENCE,
7 RECKLESSLY, AND THE NEGLIGENT HOMICIDE INSTRUCTIONS TOGETHER
8 OR CRIMINAL NEGLIGENCE INSTRUCTIONS TOGETHER AS OPPOSED TO
9 SEPARATING THE CRIMINAL NEGLIGENCE INSTRUCTION OUT OF THE
10 23.
11 THE COURT: OKAY. ALL RIGHT. WELL, I'LL LATER
12 MAKE A DECISION ON THAT. I'M NOT MAKING IT RIGHT NOW.
13 OKAY. WHAT ELSE AFTER 25 IS THE NEXT ONE WE NEED TO
14 DISCUSS?
15 MR. MAY: WELL, ON 24, YOUR HONOR, GIVEN THE -- AND
16 AGAIN, I THINK MR. MAJOR I THINK WILL WANNA WAIT UNTIL WE
17 GET TO 53, BUT IN TERMS OF NOT CONSIDERING THE INSTRUCTIONS
18 IN ANY PARTICULAR ORDER, I THINK THE DEFENDANT WOULD HAVE AN
19 OBJECTION TO THAT. AS MR. STIRBA ARGUED ON MONDAY, THE --
20 UNDER THE PERSONAL CHOICE AND LIVING WILL ACT, THERE IS
21 CREATED IMMUNITY FOR PHYSICIANS UNDER CERTAIN CIRCUMSTANCES.
22 AND ONE THING IMMUNITY IS FROM CRIMINAL PROSECUTION OR
23 PENALTY. AND MAY NOT BE THE EXACT LANGUAGE, BUT IN TERMS OF
24 CONSIDERING THE STATEMENT IN INSTRUCTION 24, YOU ARE NOT
25 REQUIRED TO CONSIDER THE INSTRUCTIONS IN ANY PARTICULAR
4280
1 ORDER. WE THINK IT'S PARAMOUNT THAT IN THIS CASE, THE JURY
2 MUST FIRST DECIDE, DID THE DOCTOR ACT IN GOOD FAITH PURSUANT
3 TO THE MEDICAL DIRECTIVES. AND IN THE COURT'S INSTRUCTION
4 NUMBER 58, THAT APPROACH SEEMS TO BE LAID OUT IN THAT -- IN
5 THAT MANNER, THAT THEY FIRST -- THEY FIRST CONSIDER THE GOOD
6 FAITH. AND THEN ALSO IN THE PROPOSED SPECIAL VERDICT FORM,
7 I THINK THAT -- THAT THAT PROCEDURE'S ALSO FOLLOWED FIRST.
8 YOU KNOW, WHETHER THE DEFENDANT ACTED IN GOOD FAITH AND IN
9 CONFORMITY WITH THE DIRECTIVE. AND SO IN TERMS OF
10 INSTRUCTION NUMBER 24, WE THINK THAT THEY SHOULD BE REQUIRED
11 TO CONSIDER THEM IN A PARTICULAR ORDER.
12 MR. MAJOR: JUST BRIEF RESPONSE, YOUR HONOR, THIS
13 24 SPEAKS CONSIDERING THE ELEMENTS OF MURDER, MANSLAUGHTER,
14 NEGLIGENT HOMICIDE. AND THAT IS THE CURRENT STATUS OF THE
15 LAW. THERE WAS THE CASE SPECIFICALLY WHERE THE COURT HAD
16 INSTRUCTED THE JURY ON AN ORDER IN WHICH THEY WERE TO
17 DETERMINE THIS. THE APPELLATE COURTS HAVE COME BACK AND
18 SAID, HEY, THAT REALLY -- THAT CAUSES SOME SPECIFIC PROBLEMS
19 IN HOW THE JURY DELIBERATES. THEY MAY NOT GET TO THE LESSER
20 INCLUDED BECAUSE OF THE WAY IT'S WORDED. BUT THIS IS, AS
21 FAR AS I KNOW, WITHIN THE LAST THREE OR FOUR YEARS IS
22 EXACTLY WHAT THE NEW APPELLATE COURT LAW IS, THAT THE JURY
23 IS TO BE INSTRUCTED THEY CONSIDER THEM IN THE ORDER THAT
24 THEY -- THAT THEY WANT TO.
25 THE COURT: WELL, THAT'S SAYING THE ELEMENTS OF
4281
1 THOSE CRIMES --
2 MR. MAJOR: YEAH, THOSE CRIMES, YEAH.
3 THE COURT: -- AND WHAT HE'S SAYING IS WHETHER YOU
4 CONSIDER IMMUNITY BEFORE YOU CONSIDER THE ELEMENTS.
5 MR. MAJOR: WELL, AND THAT -- I THINK THAT CAN
6 BE -- THAT CAN BE HANDLED ON -- LATER ON DOWN THE ROAD. BUT
7 I THINK THE STANDARD RIGHT NOW IN THE STATE OF UTAH IS THAT
8 THE JURY HAS TO BE TOLD IN CONSIDERING THE ELEMENTS OF
9 MURDER AND LESSER INCLUDEDS, THEY CAN -- THEY COULD LOOK AT
10 'EM AT ANY, YOU KNOW, IN ANY PARTICULAR WAY THAT THEY, YOU
11 KNOW, THEY WANT TO LOOK AT THAT BECAUSE ONE OF THE PROBLEMS
12 THAT YOU RUN INTO WITH THE WAY THAT'S WORDED IS THEY SAY --
13 I THINK THIS IS THE CASE, IF MY COLLEAGUES COULD CORRECT ME
14 IF I'M WRONG -- THE SITUATION WAS THE JURY WAS INSTRUCTED TO
15 CONSIDER MURDER FIRST, AND IF THEY THEN GO ON TO THE LESSER
16 INCLUDEDS AND THE JURY WOULD HAVE INTERPRETED THAT AS BEING,
17 IF WE CAN'T DECIDE THE MURDER CASE, YOU KNOW, THEN WE FIND
18 THE DEFENDANT NOT GUILTY AND WE DON'T GO ON TO CONSIDER THE
19 REST OF THEM IN THAT TYPE OF AN ORDER. I'M NOT SURE IF
20 THAT'S EXACTLY THE CASE, BUT I WOULD INDICATE TO THE COURT
21 THAT THIS IS THE CURRENT LAW IN THE STATE OF UTAH.
22 THE COURT: OKAY. WELL, I'LL LOOK AT THAT. OKAY.
23 AND ANYTHING ELSE AFTER 25 OTHER THAN WHAT WE'VE TALKED
24 ABOUT AT THIS POINT?
25 MR. MAJOR: STATE HAS A COUPLE OF MINOR CHANGES ON
4282
1 NUMBER 31, YOUR HONOR.
2 THE COURT: ANYTHING BEFORE 31?
3 MR. MAY: IN 25 AT THE DEFINITION OF RECKLESSLY, I
4 THINK IN THIS CASE, IT WOULD BE PROPER TO CHANGE THE VERY
5 LAST LINE ON THE RECKLESSLY DEFINITION, CHANGE THAT FROM A
6 GROSS DEVIATION FROM STANDARD OF CARE FROM THAT OF AN
7 ORDINARY PERSON TO THAT OF A DOCTOR OR THAT OF A PHYSICIAN.
8 THE COURT: OKAY. AND IS THE STATE'S ARGUMENT THE
9 SAME, IT SHOULD JUST BE KEPT AS FIRST --
10 MR. MAJOR: YES, SAID THIS BEFORE, YOUR HONOR,
11 THERE IS NOTHING UNDER THE CODE THAT MAKES IT SPECIAL FOR A
12 DOCTOR. THE DOCTOR IS TREATED JUST LIKE AN ORDINARY PERSON,
13 AND THE PERSON -- THE JURY JUST CONSIDERS, YOU KNOW, HIS --
14 THE COURT: SITUATION.
15 MR. MAJOR: -- SITUATION, YEAH.
16 THE COURT: OKAY. ALL RIGHT. WHEN WAS -- WHAT WAS
17 THE NEXT NUMBER?
18 MR. MAJOR: 31 IS THE NEXT ONE THE STATE HAS, YOUR
19 HONOR.
20 THE COURT: DOES THE DEFENDANT HAVE ANYTHING? I
21 GUESS I'M -- I HAVE SOMETHING ON 29. THE STATE ASKED FOR,
22 YOU'RE INSTRUCTED THAT MERCY ISN'T A DEFENSE. AND THEN YOU
23 GAVE ME ANOTHER ONE THAT JUST BASICALLY SAYS, THERE'S NO
24 DEFENSE FOR EUTHANASIA, MERCY KILLING, OR ASSISTED
25 SUICIDE --
4283
1 MR. MAJOR: THAT --
2 THE COURT: -- I'M NOT GONNA GIVE BOTH OF 'EM.
3 MR. MAJOR: WELL, THAT IS ONE WE WANNA ADDRESS WHEN
4 WE GET DOWN TO THE 53 AND 54 AND 55, YOUR HONOR.
5 THE COURT: OKAY. BUT I MEAN --
6 MR. MAJOR: I UNDERSTAND, WELL, WE UNDERSTAND THAT.
7 THE COURT: OKAY. SO TWENTY -- YOU'RE NOT ASKING
8 FOR CURRENT 29 AND THIS ONE. YOU'RE ASKING FOR THIS ONE
9 PROBABLY IN LIGHT OF --
10 MR. MAJOR: IN LIGHT OF THAT ONE, AND THAT'S WHAT
11 WE'D BE OFFERING.
12 MR. MAY: YOUR HONOR, ON 29, WE JUST AGAIN MAKE THE
13 RECORD THAT WE THINK INSTRUCTION 29 IS MORE A COMMENT ON THE
14 EVIDENCE AS OPPOSED TO AN INSTRUCTION OF LAW, AND SO WE
15 WOULD OBJECT TO THAT INSTRUCTION.
16 THE COURT: OKAY. AS TO 31?
17 MR. MAJOR: 31, YOUR HONOR, WHAT THE STATE WOULD
18 REQUEST IS, IT INDICATES THE CAUSE OF DEATH IS A FACTOR TO
19 BE DETERMINED BY THE JURY, WHILE THE DEATH CERTIFICATE --
20 AND WE WOULD LIKE TO ADD OR AN AMENDED DEATH CERTIFICATE,
21 BECAUSE IN THIS CASE WE HAVE A DEATH CERTIFICATE THAT WAS
22 SIGNED INITIALLY BY THE DEFENDANT, AND THEN WERE -- THEY
23 WERE LATER AMENDED. WE JUST DON'T WANT THE JURY TO BE
24 CONFUSED. AND THEN IN THE LAST LINE IT INDICATES, THE JURY
25 MUST. WE THINK THE JURY MAY CONSIDER THIS AS DETERMINING --
4284
1 DETERMINING THE CAUSE OF DEATH. OR THE DEATH CERTIFICATE'S
2 CONTRADICTED BY OTHER COMPETENT EVIDENCE, THE JURY MAY
3 CONSIDER THIS IN DETERMINING THE CAUSE. AND I DON'T THINK
4 WE CAN TELL THE JURY WHAT THEY HAVE TO DO AS FAR AS THEIR
5 DETERMINATION IS CONCERNED.
6 THE COURT: WELL, DO YOU WANT IN THAT LAST SENTENCE
7 ALSO DEATH CERTIFICATE OR AMENDED DEATH CERTIFICATE?
8 MR. MAJOR: RIGHT, YEAH, WHERE IT SAYS DEATH
9 CERTIFICATE, WE WOULD LIKE TO ADD THE, OR AN AMENDED DEATH
10 CERTIFICATE.
11 THE COURT: OKAY. WHAT IS THE DEFENSE RESPONSE
12 TO -- DO YOU HAVE ANY OBJECTION TO ADDING, OR AMENDED DEATH
13 CERTIFICATE?
14 MR. MAY: NO OBJECTION TO ADDING OR.
15 THE COURT: OKAY. WHAT ABOUT --
16 MR. MAY: -- AMENDING DEATH CERTIFY --
17 THE COURT: WHAT ABOUT --
18 MR. MAY: -- I THINK THAT --
19 THE COURT: -- MUST VERSUS MAY?
20 MR. MAY: THE LAST STATEMENT'S PROPER STATEMENT OF
21 THE LAW. IT SAYS THAT YOU MUST CONSIDER IT. IT DOESN'T SAY
22 THEY HAVE TO DECIDE IT ONE WAY OR ANOTHER. I THINK IT'S A
23 PROPER STATEMENT OF THE LAW, AND WE WOULD OBJECT TO CHANGING
24 THE MUST TO MAY.
25 THE COURT: OKAY. WHERE WERE THE -- I DON'T HAVE
4285
1 THE CASES OUT HERE. WHEN YOU GAVE THAT BEFORE, THERE WAS A
2 CASE THAT WAS CITED. I MEAN I READ IT AT THE TIME, AND THEN
3 WHEN WE WENT OVER THESE MONDAY, I DON'T THINK THE STATE MADE
4 AN OBJECTION TO THIS ONE.
5 MR. MAY: YEAH, I DON'T THINK THEY DID EITHER, YOUR
6 HONOR.
7 THE COURT: OKAY. WELL, I WILL LOOK AT THE
8 MUST/MAY SITUATION. BUT IT WILL CHANGE TO SAY WHERE --
9 WHILE A DEATH CERTIFICATE OR AMENDED DEATH CERTIFICATE OR
10 WHERE THE DEATH OR AMENDED DEATH CERTIFICATE.
11 OKAY. WHAT'S THE NEXT INSTRUCTION THAT WE HAVE AN
12 OBJECTION TO?
13 MR. MAJOR: THE NEXT ONE, I BELIEVE, YOUR HONOR,
14 THE STATE HAS IS NUMBER 33.
15 THE COURT: OKAY.
16 MR. MAJOR: AND WE JUST BELIEVE THAT 33 WORK --
17 WE'VE GOT A LOT OF INSTRUCTIONS, BUT WE THINK IT'S -- IT'S
18 MERGED IN AND COVERED BY INSTRUCTIONS NUMBER 32 AND NUMBER
19 34. OR 34 AND 35, I'M SORRY. I THINK IT'S JUST REPETITIVE
20 TO WHAT WE HAVE.
21 THE COURT: WELL, THIS IS A STANDARD THING I'VE
22 SEEN IN EVERY FELONY CASE THE LAST TWO YEARS I HAVE DONE AND
23 IT'S BASICALLY THE STANDARD ONES THAT I UNDERSTAND ALL THE
24 JUDGES IN THIS COUNTY DO. AND IT'S -- BASICALLY SAYS, YOU
25 PRESUME INNOCENCE, AND ALL PRESUMPTIONS ARE IN FAVOR OF
4286
1 INNOCENCE AND AS TO REASONABLE DOUBT, SO --
2 MR. MAJOR: AND WE HAVE NO PROBLEM -- I MEAN WE
3 DON'T HAVE ANY PROBLEM. AS I SAY, WE JUST THINK IT WAS
4 MERGED INTO WHAT'S COVERED ALSO IN 33 AND 35 AND IS BEING
5 REDUNDANT WITH THE JURY.
6 THE COURT: OKAY. WELL, THEY'RE -- I'VE NOTED YOUR
7 OBJECTIONS, BUT THEY'RE GONNA BE GIVEN.
8 OKAY. WHAT'S THE NEXT ONE AFTER 35?
9 MR. MAY: ON INSTRUCTION NUMBER 34 AT THIS TIME,
10 WE'VE SUBMITTED THE MEMORANDUM ON THE --
11 THE COURT: OH.
12 MR. MAY: -- REASONABLE ALTERNATIVE HYPOTHESIS --
13 THE COURT: OKAY. LET'S GO BACK TO 34. OKAY. GO
14 AHEAD.
15 MR. MAY: WELL, AGAIN, UNDER THE -- UNDER THE LAW,
16 YOUR HONOR, WE -- THE REASONABLE ALTERNATIVE HYPOTHESIS
17 INSTRUCTION THAT THE DEFENDANT PROPOSED, WE UNDERSTAND THAT
18 THAT UNDER UTAH LAW, IT IS WITHIN THE COURT'S DISCRETION.
19 HOWEVER, IN A COUPLE OF CASES THAT WERE CITED IN THE
20 MEMORANDUM, THE BRYAN CASE AND THE LAYMAN CASE, WHICH
21 INTERESTINGLY THE LAYMAN CASE WAS WRITTEN JUST NINE MONTHS
22 BY -- PRIOR TO THE LAYMAN CASE THAT WAS SUBMITTED TO THE
23 COURT BY THE STATE --
24 THE COURT: WELL, ISN'T THE APPELLATE LAW BASICALLY
25 WE'LL DO ANYTHING TO UPHOLD A JURY VERDICT? IF YOU GIVE
4287
1 IT -- IF YOU GIVE IT, IT'S FINE. IF YOU DON'T GIVE IT, IT'S
2 FINE. ISN'T THAT THE ISSUE?
3 MR. MAY: RIGHT, RIGHT. AND AGAIN, AND THAT GOES
4 TO MY STATEMENT, IT IS WITHIN THE TRIAL COURT'S DISCRETION.
5 HOWEVER, IN THIS CASE, WE LOOKED AT THE LAYMAN AND BRYAN
6 CASES AND THEY SPECIFICALLY LOOKED AT -- THOSE CASES WERE
7 CONSTRUCTIVE POSSESSION CASES, AND IN THAT TYPE OF CASE,
8 THEY REQUIRED A PRESENTATION OF -- COURT'S QUOTE, A
9 PRESENTATION OF EXTENSIVE AND DETAILED FACTS. I THINK
10 THAT'S REALLY WHAT YOU HAVE HERE. AND WE'VE GOT THE FIVE
11 COUNTS OF -- FIVE COUNTS OF MURDER. WE'RE APPARENTLY ADDING
12 THE LESSER INCLUDEDS OF MANSLAUGHTER, OF NEGLIGENT HOMICIDE.
13 WE'VE HAD JUST AN INCREDIBLE AMOUNT OF TESTIMONY ABOUT
14 DRUGS, HOW THEY INTERACT, DOSAGE LEVELS, WHATNOT. DIFFERENT
15 PATIENT'S PHYSICAL CONDITIONS. HISTORICAL ILLNESSES THEY
16 HAD ON PRESENTING TO THE DAVIS HOSPITAL. WE THINK IN THIS
17 CASE, YOU KNOW, IF THERE EVER WAS A CASE WHERE YOU HAD
18 EXTENSIVE AND DETAILED FACTS IN A HIGHLY COMPLEX CASE, THIS
19 IS THE CASE. AND THEREFORE, THE REASONABLE ALTERNATIVE
20 HYPOTHESIS INSTRUCTION IS CLEARLY WARRANTED IN THIS CASE.
21 AND AGAIN, IT'S WITHIN THE JUDGE'S DISCRETION.
22 THE COURT: OKAY.
23 MR. MAJOR: YOUR HONOR, AND OUR -- OUR POSITION IS
24 THAT THEY'RE THE SAME. I THINK THE CASE LAW IS FAIRLY
25 STRICT. IT'S COVERED UNDER REASONABLE DOUBT. AND THEY CAN
4288
1 RAISE THE ALTERNATIVE HYPOTHESIS THAT THEY WANT ON -- IN
2 THEIR CLOSING ARGUMENTS. IF THE JURY BUYS OFF OR FINDS THAT
3 THERE IS A REASONABLE HYPOTHESIS, YOU KNOW, IT GOES TO THEIR
4 REASONABLE DOUBT. I THINK THAT'S WHAT THE COURT IS SAYING,
5 ESPECIALLY IN THESE COMPLICATED CASES, YOU KNOW, WE HAVE ALL
6 OF THESE -- ALL OF THESE ELEMENTS, ALL OF THESE REASONABLE
7 HYPOTHESES. I THINK THE COURT'S JUST SAYING, HEY, LET'S
8 JUST ROLL THEM INTO THE REASONABLE DOUBT STATUTE. IF IT'S A
9 REASONABLE HYPOTHESIS, THERE'S A REASONABLE DOUBT --
10 THE COURT: WELL --
11 MR. MAJOR: -- I THINK THAT'S WHAT THE CASE WITH
12 THE STATE LAW IS.
13 THE COURT: WELL, ISN'T WHAT MR. MAY JUST STATED
14 THAT THEY -- IN TWO CASES THAT INVOLVE PRESENTATION OF
15 EXTENSIVE AND DETAILED FACTS, THEY ALLOWED -- THE JUDGE DID
16 IT AND IT WAS UPHELD?
17 MR. MAJOR: I -- YEAH, I -- THAT MAY BE THE
18 SITUATION, YOUR HONOR. BUT I THINK IT'S WITHIN THE -- IN
19 THE DISCRETION OF THE COURT. IT'S BEEN SAID AND I THINK THE
20 COURT'S LEANING VERY STRICTLY TOWARD THE FACT THAT IT'S ALL
21 INCLUDED IN THE REASONABLE OR THE REASONABLE DOUBT STATUTE.
22 AND I THINK IT'S COVERED IN THERE AND I THINK THEY CAN MAKE
23 WHATEVER ARGUMENTS THEY WANT AND, YOU KNOW, JURY CAN MAKE A
24 DECISION OF WHETHER -- WHAT'S REASONABLE AND WHAT'S NOT, AND
25 GO FROM THERE.
4289
1 THE COURT: OKAY. I'M GONNA LOOK AT THAT A LITTLE
2 BIT MORE. GONNA PUT A TAG ON 34 REGARDING REASONABLE
3 HYPOTHESIS.
4 OKAY. WHAT IS THE NEXT JURY INSTRUCTION THAT EITHER
5 ONE OF YOU HAVE AN OBJECTION TO?
6 MR. MAJOR: NEXT ONE THE STATE WOULD HAVE, YOUR
7 HONOR, IS NUMBER 36.
8 THE COURT: DO YOU HAVE ANYTHING BEFORE 36?
9 MR. MAY: 35, YOUR HONOR.
10 THE COURT: OKAY.
11 MR. MAY: AGAIN ON 35, I THINK 35, THE -- BE
12 REFERRING BACK TO 34, THE SECOND TO THE LAST SENTENCE, IS
13 REPETITIVE. THE SECOND TO THE LAST SENTENCE IN 34, I THINK
14 IS THE SAME SENTENCE MODIFIED ONLY SLIGHTLY AS THE SECOND
15 SENTENCE IN 35. WE THINK IT'S REPETITIVE AND PROBABLY
16 DOESN'T NEED TO BE GIVEN.
17 MR. MAJOR: YEAH, WE WOULD -- I THINK OUR POSITION
18 ON THAT WAS, YOUR HONOR, I THINK WE JUST MERGED THEM INTO
19 ONE -- ONE INSTRUCTION. 34 SHOULD BE MERGED IN WITH 35.
20 THE COURT: WELL, OKAY. WELL, DO YOU AGREE THAT
21 ONE SENTENCE IS JUST THE SAME SENTENCE OR THAT YOU MERGE
22 THEM WITH --
23 MR. MAJOR: IT'S ADDITIONAL EXPLANATION, YOUR
24 HONOR.
25 THE COURT: PARDON?
4290
1 MR. MAJOR: I THINK IT'S AN ADDITIONAL EXPLANATION.
2 MR. MAY: YEAH, I THINK THAT LANGUAGE, YOUR HONOR,
3 IS SUBSTANTIALLY SIMILAR. IT TALKS IN TERMS OF --
4 THE COURT: WHICH SENTENCE ON PAR -- ON
5 INSTRUCTION --
6 MR. MAY: THE SECOND TO THE LAST SENTENCE,
7 INSTRUCTION 34.
8 THE COURT: BEYOND A REASONABLE DOUBT IS THAT
9 DEGREE --
10 MR. MAY: CORRECT, CORRECT. AND WE TALK ABOUT, YOU
11 KNOW, SUCH PROOF THAT CONVINCES THE UNDERSTANDING OF THOSE
12 WHO ARE BOUND TO ACT CONSCIOUSLY UPON IT AND OBVIATES ALL
13 REASONABLE DOUBT. AND THEN YOU TURN TO 35, AND YOU HAVE THE
14 SAME LANGUAGE, CONVINCES THE MIND AND DIRECTS AND SATISFIES
15 THE CONSCIENCE OF THOSE WHO ARE BOUND TO ACT CONSCIENTIOUSLY
16 UPON IT. WITH THE CHANGE, IT DOESN'T SAY BEYOND --
17 THE COURT: WELL, DO YOU HAVE ANY PROBLEM WITH THE
18 FIRST SENTENCE BEING ADDED TO 34? THE FIRST SENTENCE OF 35
19 BEING ADDED TO 34?
20 MR. MAY: MY UNDERSTANDING, YOUR HONOR, THAT IS A
21 CORRECT STATEMENT OF THE LAW. AND I THINK -- I THINK THAT'S
22 A STOCK INSTRUCTION IN M.U.J.I. BUT -- SO WE WOULDN'T
23 OPPOSE THE ADDING THE FIRST SENTENCE. AND I THINK IT'S
24 ALREADY -- WELL, I THINK IT'S ALREADY COVERED IN 35.
25 THE COURT: OKAY. I'LL -- I'LL LOOK AT THAT TO SEE
4291
1 IF -- OKAY. IS THE NEXT ONE NOW 36?
2 MR. MAJOR: YEAH, THE STATE -- 36. AND SOME OF
3 THESE, YOUR HONOR, ARE JUST -- ARE I THINK MINOR. WE HAVE
4 INDICATED THAT THE SECOND SENTENCE BEGINS, EVIDENCE WHICH
5 WAS REJECTED BY ME. AND I THINK THE STATE IS REQUESTING
6 THAT INSTEAD OF USING THE PERSONALIZATION THAT WE PUT IN THE
7 COURT, EVIDENCE WAS REJECTED BY THE COURT OR ORDERED
8 STRICKEN BY THE COURT MAY NOT BE CONSIDERED BY YOU.
9 THE COURT: WELL, YOU KNOW, I HEARD ONE PERSON SAID
10 WHEN I WAS AN ATTORNEY, HE SAYS, THE COURT IS GONNA TAKE A
11 RECESS TO GO TO THE BATHROOM. AND I BASICALLY SAID, I CAN'T
12 PICTURE A COURT GOING TO THE BATHROOM, SO --
13 MR. MAJOR: THAT'S TRUE, YOUR HONOR.
14 THE COURT: SO MY VIEW IS THAT, YOU KNOW, THEY
15 UNDERSTAND I'M THE JUDGE. I AM NOT COURT; I AM THE JUDGE.
16 AND I, YOU KNOW, UNLESS THERE'S SOME REASON, I DON'T LIKE TO
17 TALK, YOU KNOW, IT'S KIND OF KARL MALONE. KARL MALONE
18 DOESN'T LIKE THIS, KARL MALONE DOESN'T LIKE THAT, YOU KNOW?
19 HE TALKS LIKE HE'S A THIRD PERSON. I USUALLY DON'T TALK
20 LIKE I'M A THIRD PERSON. SO UNLESS THERE'S SOME THING THAT
21 I SHOULD TALK LIKE I'M A THIRD PERSON, I'M NOT GONNA -- I'LL
22 TALK LIKE A NORMAL PERSON.
23 MR. MAJOR: THAT'S FINE, YOUR HONOR.
24 THE COURT: OKAY. DO WE HAVE ANYTHING -- WHAT'S
25 THE NEXT --
4292
1 MR. MAJOR: THE NEXT ONE THE STATE WOULD HAVE WOULD
2 BE NUMBER 38, YOUR HONOR.
3 THE COURT: 38? OKAY.
4 MR. MAJOR: AS I SAID, THESE ARE MINOR. THE VERY
5 LAST SENTENCE, IT SAYS, YOU SHOULD CONSIDER ALL THE FACTS
6 AND CIRCUMSTANCES IN EVIDENCE TO DETERMINE WHICH OF THE
7 WITNESSES ARE WORTHY OF GREATER BELIEVABILITY. WE WOULD ASK
8 THE COURT TO INCLUDE WORTHY OF GREATER OR LESSER
9 BELIEVABILITY JUST TO MAKE IT CONSISTENT.
10 THE COURT: IS THERE ANY OBJECTION TO THAT?
11 MR. MAY: NO, YOUR HONOR.
12 THE COURT: OKAY. SO YOU WANT GREATER OR LESSER?
13 MR. MAJOR: YEAH.
14 THE COURT: OKAY. THEN THAT WILL BE INCLUDED.
15 OKAY. WHAT'S THE NEXT ONE?
16 MR. MAJOR: NEXT ONE WAS NUMBER 41, YOUR HONOR.
17 THE COURT: OKAY.
18 MR. MAJOR: AND IT'S JUST -- I GUESS IT'S JUST ONE
19 OF OUR ENGLISH TEACHERS. IT SAYS, THE DEFENDANT IS A
20 COMPETENT WITNESS IN THE DEFENDANT'S OWN BEHALF. WE'D
21 INDICATE THE DEFENDANT IS A COMPETENT WITNESS IN HIS BE --
22 HIS OWN BEHALF. IT'S A LITTLE CONFUSING WITH THE
23 DEFENDANT'S COMPETENT WITNESS IN DEFENDANT'S OWN BEHALF.
24 THE COURT: I KNOW, BUT YOU WANTED ME TO PUT COURT
25 ON THE OTHER ONE.
4293
1 MR. MAJOR: YEAH, THAT'S TRUE.
2 THE COURT: OKAY. I'M GONNA PUT IN, IN HIS OWN
3 BEHALF. SEE, NOW I'M BEING CONSISTENT.
4 MR. MAJOR: HANG ON. YOUR HONOR, THERE WAS ONE
5 MORE I THINK.
6 THE COURT: WELL, THEN IT GOES ON, THE FACT THAT
7 THE DEFENDANT IS CHARGED.
8 MR. MAJOR: YEAH, THAT'S -- THAT'S OKAY. IT'S DOWN
9 AT THE BOTTOM, WE'RE INDICATING, GIVE THE DEFENDANT'S
10 TESTIMONY THE SAME -- I THINK WE TAKE OUT FAIR AND IMPARTIAL
11 AND JUST SAYING THE CONSIDERATION YOU ARE OBLIGED TO GIVE TO
12 ALL THE EVIDENCE IN THIS CASE. I THINK THAT'S HOW WE'VE
13 KIND OF CHARACTERIZED ALL OF THE OTHER EVIDENCE.
14 THE COURT: OKAY. IS THERE ANY OBJECTION TO THAT?
15 MR. MAY: YES, I THINK -- I THINK 41'S A PROPER
16 STATEMENT OF THE LAW. AND AS I RECALL, IT'S TAKEN FROM
17 M.U.J.I., YOUR HONOR.
18 THE COURT: I THINK THIS IS THE STANDARD ONE THAT
19 WE NORMALLY GIVE. I'LL LOOK AT THAT.
20 OKAY. WHAT'S THE NEXT ONE?
21 MR. MAJOR: LET'S SEE --
22 MR. WILSON: OH, YOUR HONOR, I -- NUMBER 47, THIS
23 IS THE ONE THAT --
24 THE COURT: OKAY. DO WE HAVE ANYTHING BEFORE 47?
25 MR. MAY: NO, YOUR HONOR.
4294
1 THE COURT: OKAY. LET'S GO TO 47.
2 MR. WILSON: I --
3 THE COURT: OH, THIS IS THE PICTURES --
4 MR. WILSON: -- PREPARED SORT OF AN ALTERNATIVE
5 INSTRUCTION. AFTER I GOT LOOKING AT THE ONE THAT COUNSEL
6 SUBMITTED THE OTHER DAY, THIS IS ON THE PHOTOGRAPH.
7 THE COURT: OKAY. THANK YOU.
8 MR. WILSON: AND I FELT LIKE WHERE WE SORT OF
9 SEGREGATED OUT LYDIA SMITH'S PHOTOGRAPH FOR THAT ONE
10 INSTRUCTION, THAT THAT MIGHT CREATE SOME IMPRESSIONS THAT I
11 DIDN'T WANT CREATED AND SO I PREPARED THIS INSTRUCTION WHICH
12 LISTS ALL OF THE PHOTOGRAPHS AND JUST INDICATES -- OR NOT
13 NECESSARILY REPRESENTATIVE OF THE APPEARANCE ON OR ABOUT
14 DECEMBER 1995 AND/OR JANUARY 1996. THERE WAS SOME TESTIMONY
15 RELATING TO COUPLE OF THE PHOTOGRAPHS --
16 THE COURT: SAYING THEY WEREN'T --
17 MR. WILSON: -- TAKEN FAIRLY RECENTLY.
18 THE COURT: I REMEMBER ONE IN DECEMBER. OKAY. DO
19 YOU HAVE ANY OBJECTION TO SUBSTITUTING THIS FOR 47?
20 MR. MAY: YES. I DON'T WANT TO SHOCK MR. WILSON.
21 NO, WE DON'T.
22 MR. MAJOR: THANK YOU, COUNSEL.
23 THE COURT: NOW, IF YOU COULD HAVE ONLY STARTED
24 THIS, YOU KNOW, COOPERATION AT THE BEGINNING OF THE CASE.
25 OKAY. SO THAT WILL BE THE NEW 47, AND THE CURRENT 47 I GAVE
4295
1 YOU WILL BE OUT.
2 OKAY. WHAT'S THE NEXT ONE AFTER THAT?
3 MR. MAJOR: NEXT ONE THE STATE HAS IS NUMBER 51,
4 YOUR HONOR.
5 THE COURT: OKAY. ANYTHING BEFORE 51?
6 MR. MAY: NO, YOUR HONOR.
7 THE COURT: OKAY. WHAT'S THE OBJECTION ON 51?
8 MR. MAJOR: THE FIRST ONE IS, YOUR HONOR, THIS --
9 THE FIRST LINE SAYS, IF YOU ARE CONVINCED THAT THE EVIDENCE
10 JUSTIFIES IT, YOU MAY -- AND I THINK THE STATE UNDER THE LAW
11 AS I UNDERSTAND IS YOU SHALL FIND THE DEFENDANT GUILTY OF
12 ALL COUNTS. I DON'T -- IF THEY ARE CONVINCED BEYOND A
13 REASONABLE DOUBT, THEN THE EVIDENCE JUSTIFIES IT, I THINK
14 IT'S OBLIGATION ON THEIR PART TO FIND HIM GUILTY.
15 THE COURT: OKAY. WAS THERE ANY OBJECTION TO THAT?
16 BECAUSE THE OTHER ONE SAYS, YOU MUST FIND HIM NOT GUILTY IN
17 THE NEXT SENTENCE.
18 MR. MAY: WELL, YOUR HONOR, MY UNDERSTANDING, THIS
19 WAS A -- THIS IS A STOCK INSTRUCTION. WE -- WE'RE FINE WITH
20 THE INSTRUCTION AS IT IS.
21 THE COURT: OKAY. WELL, I'M GONNA LOOK AT THAT.
22 MR. MAJOR: THEN --
23 THE COURT: WOULD YOU WANT THE WORD MUST INSTEAD OF
24 SHALL? BECAUSE IT SAYS --
25 MR. MAJOR: YEAH, THAT --
4296
1 THE COURT: -- MUST FIND HIM IN THE OTHER ONE.
2 MR. MAJOR: YEAH, THAT WOULD BE FINE, YOUR HONOR,
3 MUST.
4 THE COURT: OKAY. SO YOU'RE --
5 MR. MAJOR: THE OTHER -- THE OTHER THING WE HAVE ON
6 THAT'S IN THE NEXT SENTENCE SAYS, ON THE OTHER HAND, IF YOU
7 ARE NOT CONVINCED BEYOND A REASONABLE DOUBT THAT HE IS
8 GUILTY OF ANY COUNT, THEN YOU MUST FIND HIM NOT GUILTY AS TO
9 ALL COUNTS. AND IN THIS CASE WHERE WE HAVE SO MANY COUNTS,
10 IT REALLY SOUNDS LIKE IF THEY FIND THE DEFENDANT -- THAT
11 HE'S GUILTY OF COUNT ONE, FOR EXAMPLE ON ANDERSON, THEN YOU
12 MUST FIND HIM NOT GUILTY OF ALL THE OTHER COUNTS, JUDITH
13 LARSEN AND EVERYBODY ELSE. AND I THINK WHAT WE WANTED TO DO
14 INSTEAD OF ALL COUNTS, PUT IN THAT COUNT.
15 THE COURT: OKAY. IS THERE ANY OBJECTION TO THAT?
16 MR. MAJOR: IF NOT -- THERE'S SOME DIFFICULTY WITH
17 THAT, I'M NOT SURE WHAT --
18 MR. MAY: YES, YOUR HONOR, THAT -- I MEAN I THINK
19 THAT WHAT -- WHAT THIS INSTRUCTION IS, YOU KNOW, BASICALLY
20 WHAT THIS INSTRUCTION'S -- STOCK INSTRUCTION'S INTENDED TO
21 SAY IS, YOU CAN EITHER DEFINE -- FIND THE DEFENDANT GUILTY
22 OF EVERYTHING CHARGED, OF NOTHING CHARGED, OR OF SOME OF THE
23 THINGS THAT ARE CHARGED. AND THAT'S WHAT THAT SECOND
24 SENTENCE IS SAYING. ON THE OTHER HAND, IF YOU ARE NOT
25 CONVINCED BEYOND A REASONABLE DOUBT THAT HE'S IS GUILTY OF
4297
1 ANY COUNT, MEANING ANY COUNT THAT'S CHARGED, YOU MUST FIND
2 HIM NOT GUILT AS TO ALL COUNTS. THAT'S AN ABSOLUTE PROPER
3 STATEMENT OF THE LAW AND I THINK THAT NEEDS TO BE AS IS.
4 MR. MAJOR: WELL, I -- I THINK THE PROBLEM THE
5 STATE HAS, YOUR HONOR, IS THAT -- MEAN WHEN YOU HAVE FIVE
6 DIFFERENT DEFENDANTS AND EACH ONE OF THEM HAVE A DIFFERENT
7 COUNT -- I MEAN IF WE'RE HAVING A SINGLE COUNT OR IF YOU'RE
8 HAVING ONE DEFENDANT, HE HAS TWO -- YOU KNOW, TWO -- TWO
9 COUNTS IN THE INFORMATION, REASONABLE DOUBT IS HE'S GUILTY
10 OF ANY OF THE COUNTS IN THAT INFORMATION, THEN YOU HAVE TO
11 FIND HIM NOT GUILTY OF ALL COUNTS. BUT WHEN YOU'RE TALKING
12 HERE -- MY CONCERN IS IF I LOOKED AT THIS AS A JUROR MEMBER,
13 I WOULD SAY, GEE, I FOUND THEM -- FOUND HIM GUILTY OF ANY
14 COUNT, WHICH WOULD BE I FOUND HIM GUILTY WITH ELLEN
15 ANDERSON, THEN YOU MUST FIND HIM NOT GUILTY TO ALL OTHER
16 COUNTS.
17 THE COURT: IS THIS ONE THAT'S SOMEBODY ASKED OR
18 WAS THIS ONE THAT I GAVE?
19 MR. MAJOR: I -- I DON'T KNOW IF THIS -- THIS MAY
20 BE A -- LIKE I SAY, I THINK THIS MAY BE A STANDARD
21 INSTRUCTION, BUT IT'S ONLY DEALING WITH ONE DEFENDANT WITH
22 ONE INFORMATION RATHER THAN MULTIPLE DEFENDANTS.
23 MR. MAY: AND AGAIN, YOUR HONOR, I THINK --
24 MR. MAJOR: MULTIPLE COUNTS.
25 MR. MAY: -- THE CASE LAW IN TERMS OF JURY
4298
1 INSTRUCTIONS IS CLEAR, YOU HAVE TO CONSIDER THEM AS A WHOLE.
2 AND IN READING THIS JURY INSTRUCTION AS A WHOLE, I DON'T
3 THINK THERE'S ANY CONFUSION --
4 THE COURT: OKAY. I'M GONNA -- I'LL LOOK AT THAT.
5 MR. MAY: -- IF YOU SEPARATED -- IF IT WERE
6 SEPARATED OUT AND THAT WAS THE ONLY SENTENCE IN THIS
7 INSTRUCTION, THERE MAY BE -- MAY BE SOME ISSUE, BUT --
8 THE COURT: OKAY.
9 MR. MAY: -- WHERE IT'S -- I MEAN IT'S JUST CLEAR
10 THE WAY IT IS.
11 THE COURT: I'LL LOOK AT IT.
12 MR. MAJOR: AND IF THE COURT'S GONNA LOOK AT IT,
13 THERE'S TWO OTHER POINTS IN THERE, TOO. IT FOLLOWS THAT YOU
14 MAY FIND HIM GUILTY OF ONE OF THE COUNTS AND NOT GUILTY OF
15 THE OTHERS. I THINK WE NEED TO SAY GUILTY OF ONE OR MORE OF
16 THE COUNTS AND NOT GUILTY OF THE OTHERS. THAT THE
17 DEFENDANT -- AND THEN IN THE LAST SENTENCE WHERE IT SAYS,
18 BASED UPON THE EVIDENCE THAT THE DEFENDANT IS GUILTY, I
19 THINK WE NEED TO SAY OF THAT COUNT. I THINK WHAT THIS IS,
20 IS A STOCK INSTRUCTION, LIKE I SAID, BUT I THINK IT WAS
21 DESIGNED FOR ONE DEFENDANT WITH ONE INFORMATION AND MAYBE
22 ONE COUNT WITHIN -- OR TWO COUNTS WITHIN THAT INFORMATION
23 AND NOT CONSIDERING HAVING NUMEROUS COUNTS.
24 THE COURT: OKAY. I'LL LOOK AT THAT.
25 OKAY. WHAT'S THE NEXT ONE WE HAVE? IS IT 53?
4299
1 MR. MAJOR: YEAH, THE NEXT ONE GETS TO 53, YOUR
2 HONOR. WE HAVE --
3 THE COURT: OKAY. AND I HAVE NO PARTICULAR -- YOU
4 KNOW, I MEAN AFTER WE DISCUSS THESE, THESE WERE PUT NEAR THE
5 END. I DON'T HAVE ANY -- YOU KNOW, IF THERE'S A MORE
6 APPROPRIATE PLACE TO PUT THEM, THAT WAS A QUESTION THAT I
7 STILL HAVE.
8 OKAY. NOW LET'S GO TO 53.
9 MR. MAJOR: WELL, I'D LIKE TO DO, YOUR HONOR, IF I
10 CAN BECAUSE WE REALLY HAVE AN OBJECTION TO 53 THROUGH 57,
11 AND INCLUDING 58 AS FAR AS THE INSTRUCTIONS ARE CONCERNED.
12 AND I'D LIKE TO ADDRESS IT --
13 THE COURT: OKAY. THAT'S FINE.
14 MR. MAJOR: AND THE ISSUE THAT WE HAVE HERE, YOUR
15 HONOR, ON THESE TYPE OF A SITUATIONS IS KIND OF WHAT WE
16 TALKED ABOUT I THINK ON MONDAY. IN 58, THE COURT TALKS
17 ABOUT -- OR THE INSTRUCTION TALKS ABOUT, FOR EXAMPLE, WITH
18 JUDITH LARSEN, THE DEFENDANT ACTED IN GOOD FAITH AND IN
19 CONFORMITY WITH A DIRECTIVE OF WITHHOLDING OR WITHDRAWING
20 THE LIFE-SAVING PROCEDURES. THESE INSTRUCTIONS ARE -- SOME
21 OF THEM ARE BASED ON THE A.M.A. WE TALKED ABOUT THAT
22 EARLIER. I DON'T -- WHETHER YOU -- THE A.M.A. IS AN ETHICS
23 CODE. IT'S NOT A STATE CODE. AND WE TO HAVE LOOK AT THAT.
24 AND WHAT THESE ARE RAISED AS, YOUR HONOR, IS MORE OR LESS OF
25 AN OFFENSE. AND WHEN THE DEFENDANT FIRST MOVED TO HAVE
4300
1 THESE EXCLUDED, HE RAISED THEM SORT OF AS AN AFFIRMATIVE
2 DEFENSE TO THE STATE SAYING WE'VE -- WE'VE GOT THIS, WE HAVE
3 THE DIRECTIVES, THE DIRECTIVES ARE THERE, THEN WE HAVE THIS
4 DEFENSE. IN LOOKING AT IT, YOUR HONOR, I MEAN, THE LAW I
5 THINK IS FAIRLY FIRM ON THIS, IS THAT A DEFENSE HAS TO BE
6 CODIFIED OR IT HAS TO BE SOMEWHERE IN THE CODE AS FAR AS THE
7 DEFENSE IS CONCERNED. AND WE LOOKED THROUGH THIS AND I
8 THINK THE DEFENSE -- THE ONLY AREA THAT WE CAN FIND WHERE
9 THE DEFENSE WOULD FALL IN CRIMINAL CASE WOULD BE UNDER
10 76-2-401, WHICH IS THE JUSTIFICATION OF THE DEFENSE. AND
11 THAT INCLUDES THE SELF-DEFENSE, FULFILLMENT OF DUTIES OF A
12 POLICE OFFICER, THOSE TYPE OF THINGS. SUBPARAGRAPH 5
13 INDICATES A JUSTIFICATION WHEN THE ACTOR'S CONDUCT JUSTIFIED
14 FOR ANY OTHER REASON UNDER THE LAWS OF THIS STATE. SO I
15 THINK IF THEY'RE GONNA -- IF WE'RE GONNA TREAT THIS AS A
16 DEFENSE, THEN IT HAS TO FALL UNDER THAT PARTICULAR STATUTE.
17 IT'S THE ONLY OTHER PLACE I CAN SEE WHERE THIS DEFENSE WOULD
18 FALL. AND THE PARAGRAPH OR THE STATUTE I THINK THAT PUTS
19 THIS INTO PLAY IS 75-2-1114. PHYSICIAN'S LIABILITY FOR
20 COMPLIANCE WITH DIRECTIVE. AND THIS INDICATES THAT THE
21 DIRECTIVE -- DIRECTIVELY -- FOLLOW THE GOOD FAITH THE
22 DIRECTIVE WHICH MEET THIS PART OF THE STATUTE, UNDER THIS
23 PART ARE NOT SUBJECT TO ANY CRIMINAL OR CIVIL PROCEEDING OR
24 PENALTY AND NOT DEEMED TO HAVE COMMITTED ANY UNPROFESSIONAL
25 CONDUCT.
4301
1 NOW, THE PROBLEM THE STATE HAS WITH THIS, YOUR HONOR,
2 IS THAT THERE'S A REQUIREMENT TO MEET THIS STATUTE -- TO
3 MEET THIS -- I GUESS YOU'D SAY THIS DEFENSE UNDER 1114, AND
4 THAT IS, THE DIRECTIVES HAVE TO MEET THE REQUIREMENTS OF THE
5 SECTION, OF 1101 THROUGH -- THROUGHOUT THE REST OF THAT
6 SECTION. AND IN THIS PARTICULAR CASE, THERE HAS BEEN NO
7 EVIDENCE, THERE HAS BEEN NO FINDING, THERE HAS BEEN NOTHING
8 SET OUT THAT INDICATES THAT THE DIRECTIVES ON WHICH WE'RE
9 BASING OR WHICH THE DEFENDANT WANTS TO BASE THEIR DEFENSE
10 MEETS THE REQUIREMENTS OF STATUTE. AND --
11 THE COURT: AND WHAT ABOUT 75-2-1113? YEAH, I'VE
12 READ THIS STATUTE A NUMBER OF TIMES AND THERE'S -- THERE'S
13 SOME QUESTIONS ON IT, BUT 75-2-113 (SIC) SAYS PRESUMPTION OF
14 VALIDITY OF A DIRECTIVE. IT SAYS, A DIRECTIVE EXECUTED
15 UNDER THIS PART IS PRESUMED VALID AND BINDING AND PHYSICIANS
16 AND OTHER PROVIDERS --
17 MR. MAJOR: RIGHT.
18 THE COURT: -- OF MEDICAL SERVICES SHALL PRESUME IN
19 THE ABSENCE OF ACTUAL NOTICE TO THE CONTRARY THAT A PERSON
20 WHO EXECUTES A DIRECTIVE, WHETHER OR NOT IN PRESENCE OF THE
21 PHYSICIAN OR ANOTHER -- OTHER PROVIDER OF MEDICAL SERVICES,
22 IS OF SOUND MIND AND EXERCISES DISCRETION IN THE MATTER.
23 MR. MAJOR: RIGHT, IF THE DIRECTIVE MEETS THE
24 REQUIREMENTS OF THE SECTION.
25 THE COURT: OKAY. NOW, SO WHAT YOU'RE SAYING IS
4302
1 75-2-1113 SHOULD BE INTERPRETED AS SAYING THAT A DOCTOR,
2 BEFORE HE RELIES ON THIS, HAS TO MAKE A LEGAL DETERMINATION
3 WHETHER OR NOT IT CONFORMS WITH THIS STATUTE. AND IF HE
4 GUESSES WRONG, HE'S DEAD.
5 MR. MAJOR: WELL, THAT'S BASICALLY WHAT THE -- IN
6 ORDER TO HAVE THAT DEFENSE, IT HAS TO MEET THE SECTION
7 BECAUSE, YOUR HONOR --
8 THE COURT: I UNDERSTAND IT HAS TO MEET THE
9 SECTION, BUT I THINK THE THING THAT'S -- THAT'S THE PROBLEM
10 IS 75-2-1113, WHICH BASICALLY SAYS, IF THERE'S A DIRECTIVE,
11 WE'RE NOT GOING TO SECOND-GUESS YOU. YOU CAN PRESUME THAT
12 IT'S FAIR. NOW -- NOW, WHAT IF IT DIDN'T HAVE THE TWO -- I
13 AGREE WITH WHAT YOU SAY THAT 75-2-103 SAYS IT'S GOTTA HAVE
14 THESE WITNESSES, IT'S GOTTA DO THIS, IT'S GOTTA DO THAT.
15 AND AFTER ALL THAT'S DONE, THEN THEY SAY, YOU CAN PRESUME
16 IT'S VALID.
17 MR. MAJOR: WELL, BUT I'LL TELL YOU, YOU KNOW, YOU
18 CAN PRESUME IT'S VALID IN THAT, YOU KNOW, WHAT -- IF IT
19 MEETS ALL THOSE SECTIONS. BUT THE PROBLEM YOU HAVE, YOUR
20 HONOR, IS THE JUSTIFICATION, IF YOU'VE GOT THE JUSTIFICATION
21 AND HE IS RELYING ON THIS AND I AM PRESUMING THAT THESE
22 DIRECTIVES WERE VALID, I PRESUME THAT THEY WERE SIGNED
23 PROPERLY, WHATEVER, I'M PRESUMING THAT. AND HE'S SAYING,
24 OKAY, BASED ON THAT, I THINK I'M JUSTIFIED IN RELYING ON
25 THOSE THINGS. THE PROBLEM IS, YOU GO OVER TO 75-203, WHICH
4303
1 IS THE MURDER STATUTE, YOUR HONOR, AND IT INDICATES WHAT
2 HOMICIDE IS, WHAT DEPRAVED INDIFFERENCE IS, THEN IT GOES ON
3 AND SAYS, PARAGRAPH 3 SUB A --
4 THE COURT: OKAY. WHAT IS THE REFERENCE?
5 MR. MAJOR: 76-5-203.
6 THE COURT: OKAY.
7 MR. MAJOR: AND IT SAYS, IT IS AN AFFIRMATIVE
8 DEFENSE TO A CHARGE OF MURDER OR ATTEMPTED MURDER THAT THE
9 DEFENDANT CAUSED THE DEATH OF ANOTHER OR ATTEMPTED TO CAUSE
10 THE DEATH OF ANOTHER, AND THEN LITTLE PARA -- LITTLE ONE
11 SAYS UNDER THE INFLUENCE OF EXTREME OR EMOTIONAL DISTRESS,
12 WHICH WE DON'T HAVE HERE. BUT 2, UNDER A REASONABLE BELIEF
13 THAT THE CIRCUMSTANCES PROVIDED A LEGAL JUSTIFICATION OR
14 EXCUSE FOR HIS CONDUCT ALTHOUGH THE CONDUCT WAS NOT LEGALLY
15 JUSTIFIABLE OR EXCUSABLE UNDER THE EXISTING CIRCUMSTANCES.
16 SO IF HE BELIEVED THAT HE WAS JUSTIFIED IN FOLLOWING THE
17 DIRECTIVE, BUT IN FACT THAT IS NOT A LEGAL DIRECTIVE UNDER
18 THE STATUTE, THEN HE HAS AN AFFIRMATIVE DEFENSE UNDER THE
19 MURDER STATUTE. HOWEVER, SUBPARAGRAPH D., THIS AFFIRMATIVE
20 DEFENSE REDUCES CHARGES ONLY AS FOLLOWS: MURDER TO
21 MANSLAUGHTER, AND ATTEMPTED MURDER TO ATTEMPTED
22 MANSLAUGHTER.
23 THE SITUATION, YOUR HONOR, MAY BE BETTER EXPRESSED IN
24 THE FORM OF A SELF-DEFENSE. IF I'M TOLD SOMEONE CALLS ME ON
25 THE PHONE -- AND I APOLOGIZE TO MR. WILSON, BUT THEY TELL
4304
1 ME, HEY, YOU SCREWED UP THAT CASE INVOLVING JUDGE KAY, MEL
2 WILSON IS MAD AT YOU. HE'S COMING TO YOUR HOUSE. HE'S TOLD
3 ME HE'S GONNA BLOW YOUR HEAD OFF AND I SAW HIM GRAB A GUN
4 AND STICK IT IN HIS POCKET.
5 SO I LOOK OUT MY WINDOW A FEW MINUTES LATER, I SEE
6 MR. WILSON WALKING UP THE DRIVEWAY. I SAY, OH, NO, HERE HE
7 COMES TO KILL ME. IF I GRAB MY GUN AND IMMEDIATELY OPEN
8 FIRE ON MR. WILSON, I KILL HIM, I HAVE COMMITTED A HOMICIDE
9 OR --
10 THE COURT: I HOPE ALL THIS DOESN'T GET IN THE
11 PAPER.
12 MR. MAJOR: NO. STRIKE THAT. BUT I HAVE COMMITTED
13 MURDER, AN INTENTIONAL MURDER. I GO TO THE POLICE AND I
14 SAY, HEY, LOOK, I WAS JUSTIFIED BECAUSE IT WAS SELF-DEFENSE.
15 AND THEN THE STATE BRINGS IN ALL THEIR EVIDENCE AND SAYS,
16 WELL, LOOK, MR. WILSON HAD REALLY CHANGED HIS MIND. HE'S
17 GOT ALL THESE WITNESSES WHO SAID, HE WAS COMING OVER TO YOUR
18 HOUSE TO APOLOGIZE, TO TURN THE OTHER CHEEK, TO SAY, HEY,
19 REALLY, I'M SORRY. I REALLY DIDN'T MEAN TO GET MAD AT YOU.
20 IT WASN'T YOUR FAULT. BUT I'VE MADE THE ASSUMPTION THAT HE
21 WAS THERE IN SELF-DEFENSE. SO I DON'T LEGALLY HAVE A
22 SELF-DEFENSE JUSTIFICATION. WHAT THE STATUTE SAYS, IF I
23 HAVE KILLED A PERSON, AND EVEN THOUGH I BELIEVED I WAS
24 JUSTIFIED IN DOING THAT, I DON'T GET OFF SCOTT FREE. WHAT I
25 HAVE DONE IS I HAVE MADE A MISTAKE IN THE JUSTIFICATION AND
4305
1 I CAN HAVE A MANSLAUGHTER, BUT I DON'T GET OFF SCOTT FREE ON
2 A KILLING.
3 AND THAT'S THE SAME ARGUMENT THE STATE IS MAKING HERE.
4 THERE HAS TO BE A DETERMINATION MADE BY EITHER THIS COURT OR
5 BY THE JURY, AND I THINK IT'S THE STATE'S POSITION AND NEEDS
6 TO BE THIS COURT, WHETHER OR NOT THESE DIRECTIVES ARE VALID
7 UNDER THE STATUTE. NOT UNDER -- BECAUSE I THINK 1113 THAT
8 THE COURT TALKED ABOUT GOES TO THIS JUSTIFICATION SITUATION.
9 BUT I THINK EVEN MORE SO IT GOES -- IF I'M HANDED A
10 DIRECTIVE AND IT'S FILLED OUT AND IT'S SIGNED AND
11 EVERYTHING'S GOOD, I DON'T HAVE TO GO TALK TO THE WITNESSES
12 AND SAY, DID YOU REALLY SIGN THIS. I DON'T HAVE TO LOOK UP
13 THE WIFE AND SAY, DID YOU REALLY SIGN THIS FOR YOUR HUSBAND.
14 I MEAN THAT'S WHERE THE ASSUMPTION IS. BUT I THINK THERE
15 HAS TO BE DETERMINATION BECAUSE UNDER THE STATUTE, IF THESE
16 DIRECTIVES -- AND WE'RE TELLING THIS JURY THAT THE DEFENDANT
17 RELIED ON THESE DIRECTIVES. IF THESE DIRECTIVES AREN'T
18 VALID, IF THEY'RE NOT LEGAL, EVEN THOUGH THE DEFENDANT MAY
19 HAVE BELIEVED THEY WERE AND HE WAS RELYING ON THEM, THEN HE
20 HAS COMMITTED A CRIME BELIEVING HE WAS JUSTIFIED WHEN IN
21 FACT LEGALLY HE WASN'T. AND THAT'S WHERE IT FALLS IN HERE.
22 AND I THINK THE JURY HAS TO MAKE THAT DETERMINATION. I
23 THINK THE STATE HAS A RIGHT TO ARGUE THAT TO THE JURY, AND I
24 THINK WE HAVE A RIGHT TO AMEND THE MANSLAUGHTER CHARGE TO
25 INCLUDE, AS IT'S DONE IN MANY CASES, THAT JUSTIFICATION THAT
4306
1 HE KILLED -- THAT THE PERSON WAS KILLED EITHER RECKLESS
2 DISREGARD AND/OR WITH BELIEF THAT HE WAS JUSTIFIED IN WHAT
3 HE WAS DOING WHEN IN FACT HE WAS NOT LEGALLY JUSTIFIED. AND
4 THAT'S THE SITUATION WE HAVE HERE, YOUR HONOR, BECAUSE TO
5 SIMPLY SAY THE CAN ASSUME THAT THOSE DIRECTIVES WERE VALID
6 DOESN'T GET HIM OFF AS A DEFENSE. AND I THINK THAT'S WHY
7 THAT IT HAS TO BE DETERMINATION.
8 NOW, IF THE COURT MAKES THAT DETERMINATION, THEN WE GO
9 FROM THERE. IF THE JURY MAKES IT, THEN WE NEED TO HAVE THE
10 INSTRUCTIONS THAT WE SUBMITTED TO THE COURT WHICH TALKS
11 ABOUT WHAT IS A VALID DIRECTIVE. AND THE JURY CAN DETERMINE
12 FROM THOSE INSTRUCTIONS -- I THINK IT NEEDS TO ADD ONE MORE
13 PARAGRAPH TO IT, BUT IT'S -- BASICALLY FOLLOWS THROUGH FROM
14 WHAT THE STATUTE SAYS, BUT THEN THE JURY HAS TO DETERMINE
15 WHETHER OR NOT THOSE WERE VALID DIRECTIVES. AND THEN THEY
16 HAVE TO DETERMINE, DID THE DEFENDANT RELY ON THOSE
17 DIRECTIVES. AND THEN THEY HAVE TO DETERMINE IF HE RELIED ON
18 THE DIRECTIVES, DID HE ACT WITHIN THE SCOPE OF THOSE
19 DIRECTIVES. AND IF HE ACTED WITHIN THE SCOPE OF THE
20 DIRECTIVES, THEN DID HE ACT IN GOOD FAITH. AND I THINK
21 THOSE ARE THE THINGS WE HAVE TO GET TO. WAS THERE A VALID
22 DIRECTIVE, DID HE ACT BASED ON THAT DIRECTIVE, DID HE ACT
23 WITHIN THE SCOPE OF THE DIRECTIVE, AND THEN DID HE ACT IN
24 GOOD FAITH. BUT THERE'S GOTTA BE THAT THRESHOLD
25 DETERMINATION MADE BEFORE WE CAN DECIDE WHETHER OR NOT THIS