761
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Trial Transcript Vols. 4 - 6
1 IN THE DISTRICT COURT OF DAVIS COUNTY
2 STATE OF UTAH
3 *****
4 STATE OF UTAH, )
)
5 PLAINTIFF, )
) REPORTER'S TRANSCRIPT
6 VS. )
) CASE NO. 991700983
7 ROBERT ALLEN WEITZEL, )
)
8 DEFENDANT. )
9 *****
10
11 TRIAL - VOLUME 4 OF 21
12 JUNE 14, 2000
13 HONORABLE THOMAS L. KAY
14
15 *****
16 APPEARANCES:
17 FOR THE STATE: MR. MELVIN C. WILSON
MR. STEVEN V. MAJOR
18 MS. CHARLENE BARLOW
19 FOR THE DEFENDANT: MR. PETER STIRBA
MR. JOHN WARREN MAY
20
21
22
23
24
25
762
1 (WHEREUPON, THE MORNING SESSION BEGINS.)
2 THE COURT: OKAY. WE ARE HERE IN THE MATTER OF THE
3 STATE OF UTAH VERSUS ROBERT ALLEN WEITZEL, AND WE'RE HERE
4 WITHOUT THE JURY BEING PRESENT. WE HAVE A LEGAL MATTER TO
5 REVIEW. WE ARGUED YESTERDAY AND EVEN THE DAY BEFORE ON THIS
6 ISSUE REGARDING THE HOSPITAL POLICY. THERE HAS BEEN A
7 MEMORANDUM FROM THE DEFENDANT SAYING -- THE DEFENDANT'S
8 TRIAL MEMORANDUM REGARDING HOSPITAL POLICIES BEING
9 INADMISSIBLE OR IRRELEVANT. THERE HAD BEEN A MEMORANDUM
10 FROM THE STATE OF THEIR MEMORANDUM OF LAW OPPOSING
11 DEFENDANT'S REQUEST TO EXCLUDE HOSPITAL POLICIES. I'VE
12 LOOKED THROUGH BOTH THE RENEWED, I GUESS, OR STATE'S EXHIBIT
13 1 WHICH WAS DIFFERENT FROM THE STATE'S EXHIBIT 1 BEFORE.
14 THIS IS A POLICY THAT SAID IT WAS REVISED JULY 1, 1993, WHEN
15 I BELIEVE THE ONE THAT WE SAW IN COURT SAID 1993, THEN
16 AMENDED TO 1996. GENERALLY, YOU KNOW, THEY'RE VERY SIMILAR
17 AND MAYBE THE FORMAT IS A LITTLE BIT DIFFERENT, BUT THE TEXT
18 WAS BASICALLY THE SAME. I NOTE THAT IN THAT DOCUMENT, THE
19 REVISED EXHIBIT 1, WHEN THEY DEFINE UNDER THE DEFINITION
20 SECTION, WHICH IS PAGE 2 OF 9 IN THE NEW EXHIBIT 1, IT SAYS
21 THAT THE PERSON WILL -- PERSONAL CHOICE AND LIVING WILL ACT,
22 THAT'S A DEFINITION, AND THEN THEY REFER TO TITLE 75 CHAPTER
23 2 PART 11 OF THE UTAH STATE CODE. AND SO THEY REFERENCE THE
24 UTAH PERSONAL CHOICE AND LIVING WILL ACT. THEN LATER, THIS
25 IS ON PAGE 9 OF 9, AND IT'S UNDER MISCELLANEOUS PROVISIONS,
763
1 IT'S PARAGRAPH 5 BUT BEGINS ON PAGE 8, BUT THEN IT'S LINE --
2 OR SUBPARAGRAPH LARGE G., AND THIS IS STILL THE HOSPITAL
3 POLICY, SAYS, PHYSICIAN AND MEDICAL CARE PROVIDERS AND THEIR
4 AGENTS ACTING IN GOOD FAITH, UNDERLINE, UNDER THE PERSONAL
5 CHOICE AND LIVING WILL ACT ARE IMMUNE FROM CRIMINAL OR CIVIL
6 ACTION OR PENALTY AND ARE NOT DEEMED TO HAVE COMMITTED
7 UNPROFESSIONAL CONDUCT.
8 SO IN ONE SENSE, THE ACT, THE HOSPITAL POLICY PROVIDES
9 THAT IF A PHYSICIAN OR MEDICAL CARE PROVIDER ACTS IN GOOD
10 FAITH UNDER THIS UTAH ACT, THERE'S NO LIABILITY. IN OTHER
11 PORTIONS OF THE HOSPITAL ACT, IT PUTS ADDITIONAL
12 REQUIREMENTS UPON A DOCTOR THAN THE STATE LAW DOES. ONE WAS
13 THE STANDARD THAT THEY HAVE TO DO ON TERMINAL CONDITION. IN
14 THE HOSPITAL ACT IT HAS TO BE TO A REASONABLE DEGREE OF
15 MEDICAL CERTAINTY. IT'S A LESSER IN THE UTAH STATUTE. AND
16 THEN THERE'S A QUESTION ABOUT IN MAKING THAT DETERMINATION,
17 THAT PARAGRAPH 4-B ON PAGE 3 OF 9, THAT THE TERMINAL
18 CONDITION HAS TO BE DIAGNOSED AND CERTIFIED BY TWO
19 PHYSICIANS IN THE HOSPITAL POLICY.
20 THE WAY I REVIEW THIS -- AND THERE ARE NO CASES UNDER
21 THIS UTAH ACT, BUT WHAT I LOOK AT IS SINCE THE HOSPITAL
22 POLICY SAYS THAT IF A PHYSICIAN COMPLIES WITH THE UTAH
23 PERSONAL CHOICE AND LIVING WILL ACT, HE'S IMMUNE FROM
24 CRIMINAL OR CIVIL ACTION AND PENALTY. AND THEN AFTER THEY
25 SAY THAT, THEY SAY THERE'S ADDITIONAL REQUIREMENTS THAN THE
764
1 STATE LAW PROVIDES.
2 I FIND ONE THING, THAT THE HOSPITAL POLICY IS
3 AMBIGUOUS. IT DOES CONFLICT WITH STATE LAW. AND EVEN THE
4 POLICY SAYS THAT IF YOU COMPLY WITH THE UTAH PERSONAL CHOICE
5 AND LIVING WILL ACT, YOU'RE IMMUNE FROM CRIMINAL OR CIVIL
6 ACTION. SO I'M GOING TO EXCLUDE THE HOSPITAL POLICIES FOR
7 THE REASON THAT I FIND THAT THE HOSPITAL POLICY IS
8 AMBIGUOUS, ONE. SECOND, I FIND THAT EVEN THE HOSPITAL
9 POLICY STATES THAT IF A PHYSICIAN COMPLIES IN GOOD FAITH
10 WITH THE PERSONAL CHOICE AND LIVING WILL ACT OF UTAH,
11 THEY'RE IMMUNE.
12 NOW, WHAT THIS MEANS, YOU KNOW, I DON'T KNOW IF IT'S A
13 REALLY A BIG DIFFERENCE, BUT WHAT IT MEANS IS THAT THE ISSUE
14 IS GOING -- OR ONE OF THE ISSUES WILL BE WHETHER THIS WAS
15 DONE -- WHETHER THE PHYSICIAN IN THIS CASE FOLLOWED THE UTAH
16 PERSONAL CHOICE AND LIVING WILL ACT IN GOOD FAITH. AND
17 THAT'S GOING TO BE AN ISSUE. He did.
18 SO THAT'S GOING TO BE MY RULING BASED UPON THE REASONS
19 I JUST GAVE. IS THERE ANY OTHER THING WE NEED TO DISCUSS
20 BEFORE WE BRING THE JURY IN?
21 MR. MAY: YES YOUR, HONOR. WE WOULD LIKE TO OFFER
22 A COUPLE OF EXHIBITS. FIRST OF ALL EXHIBIT 8 --
23 THE COURT: JUST A SECOND, LET ME GET MINE. OKAY.
24 DEFENDANT'S 8. WHAT IS THAT?
25 MR. MAY: D-8, YOUR HONOR, IS A -- WITH ELLEN
765
1 ANDERSON, IT'S AN ADMISSION TO PIONEER CARE CENTER FOR
2 6/24/95.
3 THE COURT: OKAY. HAVE WE GOT A COPY OF --
4 MR. MAY: YES, YESTERDAY.
5 MR. WILSON: OH, THEY GAVE IT TO US YESTERDAY.
6 MR. MAY: AND THEN D-10, YOUR HONOR, WITH MARY
7 CRANE, THIS IS AN ADMISSION TO ALTA VIEW HOSPITAL.
8 THE COURT: WHAT'S THE DATE?
9 MR. MAY: LET'S SEE, 3/30 OF '95, YOUR HONOR.
10 THE COURT: OKAY.
11 MR. MAY: AND THEN D-11 --
12 THE COURT: OKAY.
13 MR. MAY: -- IS AN ADMISSION TO ST. MARKS HOSPITAL.
14 THE COURT: WHO IS THIS FOR?
15 MR. MAY: MARY CRANE.
16 THE COURT: OKAY. ST. MARKS. WHEN?
17 MR. MAY: ST. MARKS 11/22 OF '90. IF I COULD BACK
18 UP ONE, YOUR HONOR, TO D-10.
19 THE COURT: YES.
20 MR. MAY: I SAID 3/30/95, THAT WAS 3/30/94.
21 THE COURT: '94.
22 MR. MAY: EXCUSE ME.
23 THE COURT: OKAY. AND THESE WERE PROVIDED -- WHEN
24 DID YOU PROVIDE THESE TO THE STATE?
25 MR. MAY: THESE WERE ALL PROVIDED YESTERDAY.
766
1 THE COURT: OKAY.
2 MR. MAY: AND THEN D-13, YOUR HONOR, WHICH AGAIN IS
3 FOR MARY CRANE.
4 THE COURT: OKAY.
5 MR. MAY: IT'S AN ADMISSION TO WESTERN
6 REHABILITATION INSTITUTE.
7 THE COURT: OKAY. THE DATE?
8 MR. MAY: NOVEMBER OF 1990.
9 MS. BARLOW: IS THAT THE WHOLE --
10 MR. MAY: YES, AND THAT WAS JUST PROVIDED TODAY,
11 YOUR HONOR.
12 THE COURT: WHAT IS THAT? IS THAT THE BINDER?
13 MR. MAY: YES, THE BINDER.
14 THE COURT: OKAY. OKAY. SO IT'S DEFENDANT'S
15 EXHIBIT 8, 10, 11, AND 13. AND THAT'S IN ADDITION TO 9,
16 20.1 THROUGH 20.9, AND 22 OF YESTERDAY?
17 MR. MAY: THAT'S CORRECT.
18 THE COURT: OKAY. MR. WILSON, DO YOU WANNA RESPOND
19 TO THOSE?
20 MR. WILSON: WE MAKE THE SAME REQUEST, YOUR HONOR,
21 TO RESERVE RULING ON THE ADMISSION PENDING OUR BEING ABLE TO
22 REVIEW THESE RECORDS. WE DO ANTICIPATE THAT THEY MAY BE
23 USED IN THE CONTEXT OF ANY INTERROGATION, BUT --
24 THE COURT: OKAY.
25 MR. WILSON: -- WE WANT TO RESERVE THE RIGHT TO
767
1 REVIEW THOSE BEFORE WE EITHER CONCUR IN THEIR ADMISSION OR
2 OBJECT TO THEIR ADMISSION.
3 THE COURT: ALL RIGHT. ANYTHING ELSE WE NEED TO
4 DO?
5 MR. WILSON: THAT'S IN RESPECT TO THE ONES
6 YESTERDAY AND THE ONES TODAY.
7 THE COURT: YES. ANY OTHER ITEMS WE NEED TO
8 DISCUSS?
9 MR. STIRBA: I HAVE NOTHING, YOUR HONOR.
10 THE COURT: DAVE, DO YOU WANNA JUST SEE IF THE
11 JURORS ARE ALL HERE, LET'S --
12 MR. WILSON: YOUR HONOR, PLEASE.
13 THE COURT: HOLD ON JUST A SECOND.
14 MR. WILSON: MR. MAJORS IS WITH THE WITNESSES RIGHT
15 NOW.
16 THE COURT: OKAY. WELL, LET'S --
17 MR. WILSON: MAY I HAVE FIVE MINUTES?
18 THE COURT: WE'LL JUST WAIT UNTIL 8:30.
19 MR. WILSON: THANK YOU.
20 THE COURT: OKAY. WE WILL WAIT AND START PROMPTLY
21 AT 8:30.
22 (THE JURY RETURNED TO THE COURTROOM.)
23 THE COURT: OKAY. PLEASE BE SEATED. THE RECORD
24 SHOULD REFLECT THAT THE COUNSEL ARE HERE, THE DEFENDANT IS
25 PRESENT, AND THE JURY IS ALL PRESENT. THANK YOU AGAIN,
768
1 LADIES AND GENTLEMEN, FOR BEING HERE TIMELY. WOULD YOU LIKE
2 TO CALL -- THE STATE LIKE TO CALL ITS NEXT WITNESS.
3 MR. MAJOR: WE CALL BARBARA POHLMAN TO THE STAND,
4 YOUR HONOR.
5 THE COURT: IF YOU WOULD LIKE TO COME FORWARD
6 PLEASE AND BE SWORN.
7 BARBARA POHLMAN,
8 CALLED AS A WITNESS, BEING FIRST DULY SWORN,
9 WAS EXAMINED AND TESTIFIED AS FOLLOWS:
10 DIRECT EXAMINATION
11 BY MR. MAJOR:
12 Q. MA'AM, WILL YOU STATE YOUR NAME FOR THE RECORD?
13 A. BARBARA POHLMAN.
14 Q. AND WHERE DO YOU LIVE?
15 A. BRIGHAM CITY, UTAH.
16 Q. AND, MISS POHLMAN, YOU ARE THE DAUGHTER OF ELLEN
17 ANDERSON, IS THAT CORRECT?
18 A. CORRECT.
19 Q. LET ME SHOW YOU -- HAVE THIS MARKED.
20 HOW MANY BROTHERS AND SISTERS DO YOU HAVE THAT WOULD BE
21 SONS AND DAUGHTERS OF ELLEN ANDERSON?
22 A. I HAVE ONE SISTER.
23 Q. THERE'S JUST THE TWO OF YOU?
24 A. YES.
25 Q. LET ME SHOW YOU WHAT'S MARKED FOR IDENTIFICATION AS
769
1 PLAINTIFF'S EXHIBIT NUMBER 10. ASK YOU IF YOU CAN IDENTIFY
2 THAT?
3 A. IT'S MY MOTHER.
4 Q. AND YOU PROVIDED THAT PHOTOGRAPH --
5 A. I DID.
6 Q. -- TO THE COUNTY ATTORNEY'S OFFICE?
7 A. I DID.
8 MR. MAJOR: WE'D MOVE FOR THE ADMISSION OF
9 PLAINTIFF'S EXHIBIT NUMBER 10, YOUR HONOR.
10 MR. STIRBA: NO OBJECTION, YOUR HONOR.
11 THE COURT: OKAY. IT'S RECEIVED.
12 Q. (BY MR. MAJOR) MISS POHLMAN, PRIOR TO ABOUT JUNE OF
13 1995, WHERE WAS YOUR MOTHER LIVING?
14 A. SHE WAS LIVING WITH ME.
15 Q. HOW LONG HAD SHE BEEN LIVING WITH YOU?
16 A. THREE YEARS.
17 Q. AND WHERE HAD SHE BEEN LIVING PRIOR TO THAT TIME?
18 A. IN HER HOME IN SALT LAKE CITY.
19 Q. AND HOW LONG HAD SHE BEEN LIVING ALONE? I SHOULD SAY,
20 WHEN DID YOUR FATHER DIE?
21 A. HE DIED IN 1968. 1968 HE DIED.
22 Q. OKAY. AND HAD YOUR MOTHER BEEN LIVING ALONE SINCE THAT
23 PERIOD OF TIME?
24 A. SHE HAD.
25 Q. AND WHAT WAS IT THAT BROUGHT HER TO YOUR -- TO BE LIVING
770
1 WITH YOUR HOME?
2 A. WE FELT LIKE SHE WASN'T -- SHE WAS BEGINNING TO HAVE
3 SOME PROBLEMS WITH CARING FOR HERSELF, AND WE FELT AND SHE
4 WANTED TO COME UP AND LIVE WITH US AT THAT TIME.
5 Q. HOW OLD WOULD SHE HAVE BEEN WHEN SHE CAME TO LIVE WITH
6 YOU?
7 A. SHE WOULD HAVE BEEN ABOUT 86.
8 Q. AND WHAT WAS --
9 A. OLDER THAN THAT. ABOUT EIGHTY -- ABOUT 88.
10 Q. AND WHAT WAS THE ARRANGEMENTS IN THE HOME WHEN YOU LIVED
11 WITH HER? DID SHE HAVE HER OWN ROOM?
12 A. YES, SHE HAD HER OWN ROOM. SHE HAD A -- WITH THE BED,
13 HER BEDROOM, AND THEN THERE WAS A SEATING AREA, BUT SHE
14 LIVED IN OUR HOME WITH US.
15 Q. WHO ELSE WAS LIVING IN THE HOME AT THE TIME?
16 A. MY HUSBAND AND I.
17 Q. NOW, DURING THIS PERIOD OF TIME THAT SHE WAS -- THREE
18 YEARS THAT SHE WAS LIVING WITH YOU, WHAT WAS HER GENERAL
19 HEALTH?
20 A. IT WAS GOOD. SHE NEVER WAS A -- SHE WAS FRAIL, BUT HER
21 PHYSICAL HEALTH WAS GOOD.
22 Q. DID SHE ENGAGE IN ANY TYPE OF ACTIVITIES, ANY TYPE OF
23 HOBBIES?
24 A. SHE DID A LOT OF SEWING AND NEEDLEWORK, THAT TYPE --
25 ARTS AND CRAFTS TYPE THINGS.
771
1 Q. WHAT WAS HER MENTAL HEALTH DURING THIS PERIOD OF TIME?
2 A. IT WAS STARTING TO HAVE SOME PROBLEMS WITH SENILITY.
3 JUST REPEATING THINGS OVER AGAIN AND -- AND MOSTLY THAT WAY,
4 MOSTLY REPEATING.
5 Q. ANYTHING THAT CONCERNED YOU AT ALL?
6 A. WELL, I -- JUST THAT, THAT I COULD JUST SEE THAT SHE WAS
7 NOT REMEMBERING WELL AND -- AND THAT SHE NEEDED TO HAVE MY
8 CARE.
9 Q. AND AS FAR AS HER PHYSICAL HEALTH GOES, WAS SHE BEING
10 TREATED FOR ANY TYPE OF PHYSICAL PROBLEM?
11 A. NO.
12 Q. WAS SHE EXPERIENCING ANY TYPE OF PROBLEMS WITH PAIN
13 DURING THIS PERIOD OF TIME?
14 A. WELL, SHE HAD OSTEOPOROSIS AND WOULD HAVE DISCOMFORT IN
15 SITTING FOR A LONG TIME IN A STRAIGHT CHAIR OR THINGS SUCH
16 AS THAT. BUT SHE NEVER COMPLAINED HARDLY AT ALL.
17 Q. BASED ON YOUR OBSERVATIONS DURING THIS PERIOD OF TIME,
18 WAS THERE CONTINUOUS PAIN, WOULD YOU SAY?
19 A. NO, I WOULDN'T SAY IT WAS CONTINUOUS. JUST SAY SOME
20 DAYS WERE BETTER THAN OTHERS.
21 Q. AND WHAT TYPE OF MEDICATION IF ANYTHING WAS SHE TAKING
22 FOR THAT?
23 A. AS I RECALL, IT WAS JUST MOSTLY SOMETHING LIKE TYLENOL
24 OR HEATING PAD.
25 Q. NOTHING STRONGER THAN THAT?
772
1 A. NO.
2 Q. WAS SHE SEEING A DOCTOR DURING THIS PERIOD OF TIME FOR
3 HER PAIN?
4 A. NOT FOR THE PAIN, NO.
5 Q. BUT SHE WAS SEEING A DOCTOR?
6 A. WELL, PERIODICALLY WE'D TAKE HER IN. SHE HAD DIFFERENT
7 PROBLEMS.
8 Q. DID HER OSTEOPOROSIS AND THE PROBLEMS WITH HER BACK, DID
9 IT CAUSE HER ANY PROBLEMS WITH BEING AMBULATORY OR GETTING
10 AROUND OR ANYTHING?
11 A. NO. SHE WENT OUT TO CHURCH WITH US AND TO -- TO THE
12 STORE AT TIMES, WE'D TAKE HER PLACES WITH US.
13 Q. NOW, IN JUNE OF 1995, APPARENTLY SHE HAD SOME PROBLEMS.
14 WHAT OCCURRED ON THAT OCCASION?
15 A. WELL, I WENT INTO HER ROOM IN THE MORNING AND SHE WAS
16 STANDING AT THE END OF THE BED. SHE MADE HER OWN BED IN THE
17 MORNINGS. AND SHE WAS STANDING THERE. AND SHE SAID, I
18 CAN'T MOVE. AND I ASKED HER WHAT THE PROBLEM WAS. SHE
19 SAYS, I DON'T KNOW. I JUST CAN'T MOVE. SO SHE DID WALK AND
20 I DID TAKE HER TO THE DOCTOR AND HE SAID THAT HER HIP HAD --
21 THE BONE IN IT HAD JUST DISINTEGRATED AND THAT SHE EITHER
22 HAD TO HAVE A -- SHE SHOULD HAVE SURGERY. AND I SAID, AT
23 HER AGE, I WAS CONCERNED ABOUT THAT. AND HE SAID THAT SHE
24 WOULD BE BEDRIDDEN AND WOULD BE IN PAIN IF SHE DIDN'T HAVE
25 THE SURGERY, SO I FELT I HAD NO CHOICE.
773
1 Q. WHICH DOCTOR WAS IT?
2 A. DR. SUMKO.
3 Q. SUMKO. OKAY. AND SO BASED ON HAVING THIS CONVERSATION
4 WITH DR. SUMKO, DID THEY AGREE TO GO AHEAD WITH THE
5 OPERATION?
6 A. YES.
7 Q. AND DO YOU RECALL WHEN THE OPERATION TOOK PLACE?
8 A. THE DATE?
9 Q. YEAH --
10 A. NO, I DON'T --
11 Q. -- APPROXIMATELY.
12 A. -- REMEMBER THE DATE.
13 Q. AND WERE YOU ABLE TO VISIT YOUR MOTHER AFTER THE
14 OPERATION?
15 A. YES, I DID.
16 Q. AND DID YOU HAVE A -- DID YOU HAVE AN OPPORTUNITY TO
17 HAVE A CONVERSATION WITH DR. SUMKO ABOUT THE OPERATION?
18 A. SAID IT HAD GONE VERY WELL AND THAT THINGS LOOKED GOOD
19 AND SHE SEEMED TO NOT BE IN ANY PAIN FROM IT, FROM THE
20 SURGERY. I NOTICED THAT SHE WAS VERY -- TO ME, FROM THE
21 TIME SHE CAME OUT OF THE SURGERY, HER MENTAL STATE WAS
22 COMPLETELY DIFFERENT THAN WHEN SHE HAD GONE IN. AND I
23 THOUGHT PERHAPS THE ANESTHETIC HAD HAD AN EFFECT ON HER
24 MIND. Fat emboli. We know it wasn't "narcotics".
25 Q. AND CAN YOU DESCRIBE WHAT THE PROBLEM WAS, WHAT THE
774
1 DIFFERENCE WAS WITH HER MENTAL STATE AFTER THE OPERATION?
2 A. SHE WAS VERY -- SHE CRIED AND VERY WORRIED AND VERY
3 ANXIOUS AND FEARFUL.
4 Q. AND WHAT WAS SHE ANXIOUS AND FEARFUL ABOUT?
5 A. I DIDN'T KNOW. SHE JUST -- SHE WOULD JUST GIVE THAT
6 APPEARANCE OF BEING ANXIOUS AND LIKE SHE WAS AFRAID OF
7 EVERYTHING.
8 Q. UH-HUH. OKAY. BUT ON -- WHAT WAS HER -- LET ME ASK YOU
9 THIS: HOW LONG WAS SHE IN THE HOSPITAL, DO YOU RECALL?
10 A. I COULDN'T SAY THE EXACT NUMBER OF DAYS. IT WAS A FEW
11 DAYS.
12 Q. AND YOU VISITED HER WHILE SHE WAS IN THE HOSPITAL.
13 A. YES, YES.
14 Q. OKAY. THAT'S KIND OF WHERE YOU GOT THIS IDEA THAT SHE
15 WAS HAVING PROBLEMS.
16 A. CORRECT.
17 Q. WHAT WAS HER GENERAL PHYSICAL CONDITION LIKE WHILE SHE
18 WAS IN THE HOSPITAL?
19 A. WELL, SHE SEEMED FINE. WAS READY TO GO HOME WHEN I CAME
20 TO GET HER AND WAS DISTRESSED AGAIN WHEN I TOLD HER THAT SHE
21 WAS TO GO TO THE CARE CENTER FOR PHYSICAL THERAPY FOR A
22 SHORT PERIOD TIME.
23 Q. NOW, SHE WAS ABLE TO UNDERSTAND THE FACT THAT SHE WAS
24 GOING TO A CARE CENTER?
25 A. YES.
775
1 Q. DID SHE HAVE ANY PROBLEMS IN RECOGNIZING YOU OR THE
2 OTHER FAMILY MEMBERS?
3 A. NO, SHE RECOGNIZED US.
4 Q. DID SHE APPEAR TO BE COHERENT?
5 A. YES.
6 Q. UNDERSTANDING?
7 A. YES. SHE WAS JUST VERY AFRAID AND DIDN'T -- SEEMED SO
8 ANXIOUS ABOUT EVERYTHING.
9 Q. AND WAS THERE ANYTHING WHILE SHE WAS IN THE HOSPITAL
10 THAT WOULD TEND TO BRING THIS ON OVER -- VERSUS SOMETHING
11 ELSE?
12 A. NO, OTHER THAN THE SURGERY THAT I THOUGHT MAYBE THE
13 ANESTHETIC, BUT I --
14 Q. WERE YOU INVOLVED IN ANY OF HER PHYSICAL THERAPY WHILE
15 SHE WAS IN THE HOSPITAL?
16 A. NO.
17 Q. WERE YOU INVOLVED IN GETTING HER UP OUT OF BED OR
18 ANYTHING?
19 A. NO, NOT THAT I RECALL.
20 Q. AND AFTER SHE HAD LEFT THE HOSPITAL, WHERE DID SHE GO?
21 A. SHE WENT TO THE CARE CENTER NEAR WHERE -- NEAR MY HOME.
22 Q. AND WHAT CARE CENTER WAS THAT, DO YOU RECALL?
23 A. PIONEER MEMORIAL CARE CENTER.
24 Q. AND HOW OFTEN WOULD YOU VISIT HER WHEN SHE WAS IN THE
25 CARE CENTER?
776
1 A. WELL, I WAS THERE DAILY. AND FOR SEVERAL HOURS AT A
2 TIME. AND I HAD CONTACT WITH MY SISTER IN CALIFORNIA AND
3 SHE -- AND I TOLD HER HOW UNHAPPY SHE WAS, JUST DEPRESSED,
4 SHE WOULD JUST BE CRYING. I'D COME IN AND SHE'D BE IN THE
5 CAFETERIA AND SHE'D BE SITTING THERE AT THE TABLE, BUT JUST
6 CRYING. AND SHE DIDN'T WANT TO EAT. AND I WAS CONCERNED
7 THAT WAY. AND AFTER I'D BE THERE A WHILE, SHE WOULD BE
8 PACIFIED AND WOULD CONVERSE WITH ME AND TALK WITH ME. BUT
9 THEN AS SOON AS I SAID, WELL, I NEEDED TO GO, THEN SHE'D
10 START IN AGAIN, THE CRYING AND --
11 Q. UPSET?
12 A. UH-HUH, UPSET.
13 Q. AND WHEN YOU WOULD HAVE THESE CONVERSATIONS AGAIN, DID
14 SHE APPEAR TO BE LUCID?
15 A. YES.
16 Q. COMMUNICATIVE?
17 A. YES.
18 Q. DID SHE APPEAR TO HAVE ANY PROBLEMS WITH HER MEMORY?
19 A. WELL, SHE HAD BEEN HAVING THAT FOR QUITE SOME TIME.
20 Q. ANYTHING DIFFERENT THAN -- ANY DRASTIC CHANGES?
21 A. NO, JUST -- UN-UNH. OH, SHE JUST WAS NOT THE WOMAN THAT
22 SHE HAD BEEN AS A YOUNGER WOMAN.
23 Q. DURING TIME THAT YOU WERE WITH HER IN THE REST HOME, DID
24 SHE EVER COMPLAIN OF PAIN AT ALL?
25 A. NO.
777
1 Q. DID SHE EVER APPEAR TO BE IN PAIN TO YOU?
2 A. OTHER THAN THE MENTAL PAIN, NO.
3 Q. WE'RE TALKING PHYSICAL PAIN.
4 A. PHYSICAL PAIN, NO.
5 Q. NEVER COMPLAIN ABOUT ANY PROBLEMS WITH HER BACK?
6 A. SHE -- I DON'T RECALL THAT SHE DID. IT JUST WASN'T AN
7 ISSUE. THE THING THAT SHE WOULD ALWAYS BE TALKING ABOUT WAS
8 SHE WANTED TO COME HOME WITH ME AND WHEN WAS SHE GOING TO BE
9 ABLE TO COME HOME AND SO FORTH. SHE WAS HAVING PHYSICAL
10 THERAPY AT THE TIME AND -- AND WAS ABLE TO DO THAT.
11 Q. AND APPROXIMATELY HOW LONG WAS SHE IN THE REST HOME, DO
12 YOU RECALL?
13 A. SHE WAS THERE ABOUT AS I RECALL ABOUT TWO WEEKS, AND
14 THEN SHE WAS JUST SO UPSET ALL THE TIME THAT SHE WAS THERE,
15 AND SO I SAID TO THE ADMINISTRATORS THAT PERHAPS I WOULD --
16 THAT I THOUGHT I WOULD TRY TAKING HER HOME AGAIN, EVEN
17 THOUGH SHE WAS -- NEEDED THE PHYSICAL THERAPY AND SHE ALSO
18 WAS IN THIS EMOTIONAL STATE THAT I -- I REALLY WASN'T ABLE
19 TO HELP MUCH WITH. AND I THOUGHT MAYBE WHEN SHE GOT HOME
20 AND AROUND HER FAMILIAR SURROUNDINGS AGAIN THAT THE
21 DEPRESSION WOULD LEAVE, AND THE ANXIETY.
22 Q. AND SO THERE CAME A TIME WHEN YOU DID TAKE HER BACK OUT
23 OF THE REST HOME?
24 A. I DID.
25 Q. DO YOU RECALL ABOUT WHEN THAT WAS?
778
1 A. SHE HAD BEEN THERE ABOUT TWO WEEKS, AND I CALLED MY
2 SISTER IN CALIFORNIA AND INDICATED THAT I WAS BRINGING HER
3 HOME AND -- BUT EVEN THOUGH SHE KNEW SHE WAS COMING HOME,
4 SHE WAS STILL TEARFUL.
5 Q. WHEN YOU LEFT THE REST HOME, SHE WAS ON ANY TYPE OF
6 MEDICATIONS?
7 A. I'M SURE SHE WAS ON SOMETHING FOR THE -- FOR THE MENTAL
8 DISTRESS, BUT I COULDN'T TELL --
9 Q. WHEN YOU GOT HER HOME, WAS SHE TAKING MEDICATION? WOULD
10 YOU GIVE HER MEDICATION WHEN SHE WAS AT THE HOUSE?
11 A. YES.
12 Q. YOU DON'T RECALL WHAT THEY WERE.
13 A. NO, I DON'T. I KNOW IT WAS TO TRY TO ALLEVIATE THE --
14 THE ANXIETY BECAUSE SHE WOULD WAKE AT NIGHT AND SHE'D HAD A
15 SLEEPING PILL TO GO TO SLEEP WITH BECAUSE SHE WAS JUST IN
16 THIS STRESSED-OUT STATE, AND SHE WOULD BE ASLEEP FOR MAYBE
17 AN HOUR, AND THEN SHE WOULD WAKE UP AND SHE WOULD CALL OUT
18 TO ME. BARBARA, BARBARA, HELP ME, HELP ME, BARBARA,
19 BARBARA. AND IT JUST WAS A CHANT ALMOST, IT JUST A WENT ON
20 THROUGH THE NIGHT.
21 Q. AND THAT WAS WHAT THE MAIN PROBLEM WAS.
22 A. YES.
23 Q. OKAY. NOW, WHEN THE DOCTOR -- WHEN SHE LEFT THE REST
24 HOME, WERE YOU GIVEN ANY INSTRUCTIONS CONCERNING HER
25 MEDICATION?
779
1 A. WELL, OTHER THAN HOW TO -- OFTEN TO GIVE THE SLEEPING
2 PILL OR WHAT OTHER MEDICATION.
3 Q. WHEN SHE LEFT THE RESTING HOME -- REST HOME, WERE YOU
4 GIVEN ANY INSTRUCTION AS FAR AS PAIN PILLS, ANY TYPE OF PAIN
5 MEDICATION?
6 A. NO. FOR PHYSICAL PAIN YOU'RE TALKING ABOUT?
7 Q. YEAH, PHYSICAL PAIN.
8 A. NO.
9 Q. AND DURING THE TIME THAT SHE HAD LEFT THE REST HOME AND
10 WAS IN YOUR HOME, DID YOU GIVE HER ANY PAIN MEDICATION?
11 A. FOR PHYSICAL PAIN, NO.
12 Q. PHYSICAL PAIN.
13 A. NO, I DID NOT.
14 Q. DID SHE APPEAR DURING THIS PERIOD THAT WAS -- WHEN SHE
15 WAS IN THE REST HOME AND WENT BACK TO YOUR HOME, DID SHE
16 APPEAR DURING THAT PERIOD OF TIME TO BE IN ANY PAIN,
17 PHYSICAL PAIN?
18 A. NO, SHE DIDN'T. SHE -- ONE OF THE MEDICATIONS THEY PUT
19 HER ON FOR HER MENTAL STATE CAUSED HER TO JUST THROW --
20 THROW HERSELF UP AND THEN DOWN AND THEN UP AND THEN DOWN.
21 AND I WAS AMAZED THAT SHE WAS ABLE TO DO THAT WITH HER --
22 THE OSTEOPOROSIS THAT I KNEW SHE HAD, BUT SHE SEEMED
23 PHYSICALLY -- SHE DID IT HERSELF AND --
24 Q. AND SHE DIDN'T APPEAR TO COMMENT ABOUT PAIN OR --
25 A. NO, SHE NEVER DID.
780
1 Q. -- MOAN AND GROAN, ANYTHING LIKE THAT APPARENTLY IN
2 PAIN?
3 A. NO, NO.
4 Q. AND HOW LONG DID SHE REMAIN IN YOUR HOME?
5 A. SHE WAS THERE ABOUT THREE WEEKS. AND I AGAIN CONTACTED
6 MY SISTER BECAUSE OF THIS, AT NIGHTTIME, I WASN'T ABLE TO
7 REST AT ALL. IT WAS JUST CONTINUALLY DAY AND NIGHT. AND
8 MY -- I CALLED MY SISTER AND I WAS -- HAPPENED TO BE IN THE
9 ROOM WHERE MY MOTHER WAS, AND SHE WAS DOING THIS SORT OF
10 CHANTING, HELP ME, HELP ME. AND MY SISTER SAID SHE DIDN'T
11 REALIZE THAT THAT'S AS -- SHE WAS THAT BAD --
12 Q. YEAH.
13 A. -- MENTALLY. AND SHE THEN AT THAT TIME DETERMINED THAT
14 SHE WOULD SEE WHAT SHE COULD DO. SHE WAS WORKING IN
15 CALIFORNIA AT THE TIME AND HER RESIDENCE WAS THERE, AND SHE
16 SAID SHE WOULD COME AND GO ON A SABBATICAL -- SHE WAS
17 TEACHING -- AND COME UP AND HELP ME TAKE CARE OF MY MOTHER
18 IN MY HOME.
19 Q. AND DID SHE DO THAT?
20 A. SHE DID. SHE CAME UP AND IT WAS ABOUT AT THE END OF
21 THIS THREE-WEEK PERIOD THAT SHE WAS ABLE TO COME. AND SHE
22 THOUGHT THAT IF SHE STAYED WITH MY MOTHER DURING THE NIGHT,
23 SHE COULD CALM HER DOWN. AND I SAID, WELL, TO TRY BECAUSE I
24 HAD NOT BEEN ABLE TO GET HER OUT OF THIS STATE AT ALL. AND
25 SHE SLEPT WITH HER THAT NIGHT, AND THE NEXT MORNING SHE
781
1 SAID, WE CAN'T DO THIS. I -- SHE WASN'T ABLE TO -- SHE
2 WORKED WITH HER DURING THE NIGHT TRYING TO CALM HER DOWN AND
3 WASN'T ABLE TO.
4 Q. NOW, DID THIS CONDITION THAT YOUR MOTHER HAD, THE PANIC
5 DISORDER I GUESS YOU COULD CALL IT OR FEAR, DID THAT
6 INCREASE DURING THE PERIOD OF TIME THAT SHE WAS IN YOUR
7 HOME?
8 A. IT CERTAINLY DIDN'T LESSEN. I THOUGHT WHEN WE HAD
9 BROUGHT HER BACK THAT THINGS WOULD BE BETTER, BUT SHE -- SHE
10 HAD ALWAYS BEEN ABLE TO GO UP AND DOWN THE STAIRS, AND EVEN
11 AFTER THE SURGERY SHE WAS ALLOWED TO DO THINGS LIKE THAT,
12 BUT SHE'D GET TO THE TOP OF THE STAIRS AND JUST LIKE -- LIKE
13 IT WAS A BIG CHASM THAT SOMEONE WAS GONNA PUSH HER OVER.
14 SHE WOULD JUST PULL BACK IN TERROR. AND WE HAD A HARD TIME
15 MANEUVERING HER. BUT WE -- SHE DID, SHE WAS ABLE TO DO
16 THOSE THINGS.
17 Q. NOW, DURING THIS PERIOD OF TIME, DID IT EVER APPEAR TO
18 YOU THAT YOUR MOTHER WAS IN PAIN?
19 A. NOT PHYSICAL PAIN.
20 Q. NOT PHYSICAL PAIN.
21 A. NO.
22 Q. SO AFTER YOUR DAUGHTER -- YOUR DAUGHTER -- AFTER YOUR
23 SISTER CAME UP AND ATTEMPTED TO HELP YOU, WHAT OCCURRED AS
24 FAR AS YOU MOTHER'S SITUATION?
25 A. WELL, WHEN SHE -- SO WE CONTACTED THE CARE CENTER THE
782
1 NEXT DAY AND THEY ADMITTED HER AGAIN. AND MY SISTER AND I
2 WORKED OUT A SHIFT SO THAT WE WOULD GET THERE ABOUT THE TIME
3 SHE WAS HAVING BREAKFAST AND STAY -- ONE OF US WOULD STAY
4 WITH HER FOR SEVERAL HOURS BECAUSE IF WE WOULD LEAVE, SHE
5 REC -- SHE KNEW US AND WAS MORE PACIFIED BY OUR BEING THERE.
6 AND AS SOON AS WE WOULD LEAVE, THEN SHE WOULD START THIS
7 CALLING OUT FOR HELP AND THINGS SUCH AS THAT.
8 Q. UH-HUH.
9 A. SO SHE WOULD BE THERE FOR SEVERAL HOURS IN THE HOURS
10 MORNING, THEN I WOULD COME AT LUNCHTIME AND BE THERE FOR
11 SEVERAL HOURS, AND THEN THE OTHER ONE WOULD COME BACK. IN
12 THE EVENING, WE WOULD PUT HER TO BED AND THEN THEY WOULD
13 GIVE A SLEEPING PILL TO HER SO THAT SHE WOULD FALL ASLEEP.
14 AND THEN WE LEFT, THOUGH SHE WOKE UP SHORTLY THEREAFTER
15 BECAUSE SHE WOULD DO THIS AGAIN THROUGH THE NIGHT.
16 Q. AND THEN WHAT HAPPENED AFTER THIS STAY IN THE REST HOME?
17 OR HOW LONG WAS SHE IN THE REST HOME?
18 A. SHE WAS THERE SIX MONTHS AND IT WAS -- IT SEEMED
19 CONTINUALLY THE MENTAL ANGUISH BECOME MORE INTENSE, AND THEY
20 MOVED HER FROM THE ROOM THAT SHE WAS IN AND PLACED HER IN A
21 MORE ISOLATED AREA AND -- AND THE CAFETERIA WHERE THEY --
22 MOST OF THE RESIDENTS ATE, THEY PLACED HER IN ANOTHER ONE
23 FOR OTHER PEOPLE WHO WERE HAVING A LOT OF PROBLEMS WERE
24 PLACED, AND IT WAS JUST VERY DIFFICULT FOR MY SISTER AND I
25 TO SEE THIS SITUATION IN COMING ABOUT. AND WE HAD TRIED
783
1 THROUGH THIS PERIOD OF TIME TO GET MEDICATION THAT WOULD
2 SOME WAY GIVE HER SOME PEACE AND CALMNESS. AND MANY THINGS
3 HAD BEEN TRIED TO TRY AND TAKE THIS FEAR AND ANGUISH AND
4 TERROR AWAY FROM HER MIND, AND NOTHING HAD BEEN EFFECTIVE.
5 AND MY SISTER, SHE WENT HOME FROM SEEING MOTHER IN THE
6 LUNCH ROOM WHERE THEY HAD PLACED HER, AND SHE STARTED TO
7 MAKE SOME CALLS TO SEE IF THERE WAS A PLACE WHERE SHE
8 FELT -- WHERE SOME MEDICATION THAT THEY WERE NOT ABLE TO
9 GIVE IN THE CARE CENTER COULD BE GIVEN TO HER, SUCH AS A
10 HOSPITAL.
11 Q. AND DID SHE LOCATE A PLACE WHERE --
12 A. SHE CONTACTED A PSYCHIATRIST IN BRIGHAM THAT THE RECE --
13 THE NURSE OR THE SECRETARY AT THE PSYCHIATRIST, THAT WAS IN
14 BRIGHAM CITY THAT I HAD HAD HER GO TO AT THE VERY BEGINNING
15 WHEN SHE HAD COME OUT OF THE HOSPITAL, AND SHE SAID THAT
16 DAVIS COUNTY HAD OPENED UP A UNIT THAT SHE THOUGHT MIGHT BE
17 HELPFUL BECAUSE SHE -- NOTHING THAT AROUND US WAS WORKING.
18 AND SO DIANE MADE THE CONTACT TO SOMEONE DOWN THERE, AND
19 THEY SAID THAT THEY WOULD SEND SOMEONE UP TO INTERVIEW HER
20 AND SEE IF SHE QUALIFIED FOR THE --
21 Q. AND THIS WAS THE GEROPSYCH UNIT AT THE DAVIS MEDICAL
22 CENTER --
23 A. IT WAS.
24 Q. -- IN LAYTON?
25 A. YES, IT WAS.
784
1 Q. AND DID THEY SEND SOMEONE UP?
2 A. THEY DID. AND MY SISTER WASN'T ABLE TO BE THERE, BUT
3 I -- SHE ASKED ME TO MAKE THE -- BE THERE FOR THE INTERVIEW.
4 AND HE SAW THE CONDITION MY MOTHER WAS IN AND HE TALKED WITH
5 ME ABOUT WHAT HAD BEEN HAPPENING AND THE MEDICATIONS THAT WE
6 HAD TRIED AND NOTHING HAD BEEN EFFECTIVE. AND HE SAID TO ME
7 THAT HE FELT THAT THEY WOULD BE ABLE TO HELP HER DOWN THERE
8 AND GIVE HER THIS MORE OF A CALMNESS. AND MY SISTER HAD
9 ASKED ME TO CHECK ON THE POSSIBILITY OF MORPHINE, THAT SHE
10 HAD HEARD THAT IT WAS SOMETHING THAT COULD CALM PEOPLE DOWN,
11 AND I DIDN'T --
12 Q. EXCUSE ME. DURING THE -- I INTERRUPTED YOU. DID HE
13 GIVE YOU THE NAME WHEN YOU TALKED TO HIM?
14 A. THE MAN THAT CAME --
15 Q. CAME --
16 A. I DON'T REMEMBER HIS NAME. HE WAS A YOUNG MAN AND HE
17 SAID HE WAS ASSOCIATED WITH THE HOSPITAL. AND HE WAS NOT
18 THE -- HE WAS NOT A DOCTOR. Social worker - probably Keith Perry.
19 Q. NOW, DURING THE COURSE OF THIS CONVERSATION, DID YOU
20 EVER -- YOU DISCUSSED YOUR MOTHER'S MENTAL CONDITION. DID
21 YOU ALSO DISCUSS HER PHYSICAL CONDITION? DO YOU RECALL?
22 A. WE MAY HAVE. I DON'T RECALL.
23 Q. WAS THERE ANY DISCUSSIONS ABOUT PAIN, THE FACT THAT SHE
24 MAY BE IN PAIN OR ANYTHING OF THAT NATURE?
25 A. NOT THAT I RECALL. BUT SHE WAS -- SHE WAS IN A
785
1 WHEELCHAIR AT THAT TIME BECAUSE OF HER FRAIL CONDITION.
2 Q. UH-HUH.
3 A. BUT --
4 Q. NOW, IN THIS DISCUSSION YOU MENTIONED MORPHINE. WHAT
5 WAS THE NATURE OF THAT DISCUSSION?
6 A. WELL, I JUST ASKED IF SOMETHING LIKE MORPHINE COULD BE
7 USED. AND HE INDICATED THAT IT COULD BECAUSE MY SISTER HAD
8 HEARD THAT THAT COULD ALLEVIATE PHYSICAL PAIN, AND SHE
9 THOUGHT MENTAL PAIN ALSO MIGHT BE -- NOW, SHE MAY HAVE KNEW
10 MORE ABOUT IT -- I JUST --
11 Q. WE HAVE TO -- YEAH, WE'RE -- UNDERSTAND. WE DON'T NEED
12 TO HAVE TO GET INTO ALL THE DETAILS. WE'LL BE CALLING HER.
13 A. UH-HUH.
14 Q. BUT AT LEAST THAT WAS WHAT THE DISCUSSION WAS.
15 A. THAT'S RIGHT.
16 Q. WAS THERE ANY DISCUSSION WITH THIS INDIVIDUAL THAT
17 MORPHINE WOULD BE USED FOR PAIN CONTROL OTHER THAN MENTAL
18 PROBLEMS?
19 A. NO.
20 Q. PHYSICAL PAIN?
21 A. NO. WE DID NOT DISCUSS ANYTHING ABOUT PHYSICAL NEEDS AT
22 THAT TIME. IT WAS JUST ALL HER MENTAL STATE.
23 Q. DID YOU FEEL THAT YOUR MOTHER NEEDED ANYTHING FOR HER
24 PHYSICAL NEEDS?
25 A. NO, I DIDN'T.
786
1 Q. AFTER YOU HAD A DISCUSSION WITH INDIVIDUAL, WHAT
2 HAPPENED THEN?
3 A. HE SAID THAT THERE WAS A BED AVAILABLE AND THAT WE COULD
4 BRING HER DOWN IMMEDIATELY. AND SO MY HUSBAND AND I MADE
5 THE ARRANGEMENTS WITH THE CARE CENTER, AND THEY WERE
6 SURPRISED THAT WE WERE TAKING HER ANYWHERE BECAUSE THEY --
7 THEY JUST WERE SURPRISED. AND I SAID, WELL, WE'VE DECIDED
8 TO TRY THIS OTHER HOSPITAL DOWN HERE TO SEE IF WE CAN'T GET
9 SOME HELP BECAUSE SHE -- IT WAS TO THE POINT THAT WE WEREN'T
10 ABLE TO EVEN GIVE HER ANY COMFORT BY OUR COMING IN. SHE WAS
11 STILL ALWAYS UPSET THE WHOLE TIME THAT WE WERE THERE.
12 Q. OKAY. AND SO APPROXIMATELY WHAT TIME WAS IT THAT YOU
13 TOOK HER OUT OF THE REST HOME?
14 A. IT WAS IN THE LATE AFTERNOON. AND MY HUSBAND AND I TOOK
15 HER DOWN TO THE HOSPITAL AND STARTED ADMITTING HER. IT WAS
16 AT LEAST TWO HOURS THAT WE WERE IN THE ADMITTING. I THINK
17 IT WAS 7:00 O'CLOCK THAT WE ARRIVED AT THE ROOM.
18 Q. AND DURING THIS PERIOD OF TIME WHEN WE'RE DOING THE
19 ADMITTING, WHAT ARE WE -- WAS YOUR MOTHER WITH YOU?
20 A. YES, SHE WAS.
21 Q. SHE WAS WITH YOU THE WHOLE TIME --
22 A. THE WHOLE TIME.
23 Q. -- YOU WERE DOING THE ADMITTING?
24 A. THAT'S RIGHT.
25 Q. THE WHOLE TIME PRIOR TO THE TIME --
787
1 A. YEAH, THEY HAD HER IN A -- AND SHE WAS IN A WHEELCHAIR,
2 BUT SHE WAS SITTING THERE WITH ME HOLDING MY HAND AND --
3 Q. AND THIS POINT IN TIME, DID SHE APPEAR TO BE ALERT?
4 A. WELL, AS ALERT AS THIS MENTAL CONDITION WAS ALLOWING HER
5 TO BE --
6 Q. WELL, WE UNDERSTAND THAT, BUT THERE HAD BEEN NO REAL
7 CHANGE IN HER MENTAL --
8 A. NO.
9 Q. HER ALERTNESS OR ANYTHING OF THIS NATURE?
10 A. NO. SHE KNEW THAT I WAS THERE AND THAT --
11 Q. WAS SHE ABLE TO COMMUNICATE WITH YOU TO SOME EXTENT?
12 A. WELL, NOT AN EXCESSIVE AMOUNT, SHE WASN'T DOING THAT,
13 BUT SHE WAS --
14 Q. AND YOU INDICATED THAT THIS ADMISSION TOOK ABOUT TWO
15 HOURS, IS THAT CORRECT?
16 A. UH-HUH, THAT'S RIGHT.
17 Q. AND DO YOU RECALL DURING THAT PERIOD OF TIME
18 DISCUSSING -- WHO DID YOU DO THE ADMISSION WITH, MAYBE I
19 SHOULD ASK?
20 A. THERE WAS A WOMAN THERE AND SHE JUST ASKED INNUMERABLE
21 QUESTIONS, AND THERE WERE FORMS TO FILL OUT AND SO FORTH.
22 Q. DO YOU RECALL IF THIS WAS A NURSE THAT WOULD HAVE --
23 A. I DON'T THINK IT WAS --
24 Q. YOU DON'T KNOW?
25 A. I DON'T THINK IT WAS A NURSE.
788
1 Q. DO YOU RECALL DISCUSSING WHAT THEIR PROCEDURES WERE
2 GONNA BE AND WHAT TYPE OF THINGS THEY WERE GONNA BE DOING AT
3 THAT TIME?
4 A. I -- I ASKED ABOUT WHEN HE WOULD BE ABLE TO COME BACK
5 AND VISIT. AND WE -- I DIDN'T TALK ABOUT -- I DIDN'T SAY
6 ANYTHING ABOUT MEDICATIONS OF WHAT WE WANTED TO HAVE HAPPEN
7 OR ANYTHING LIKE -- AS WE WERE -- AS SHE WAS BEING ADMITTED.
8 AS FAR AS I KNEW, THIS YOUNG MAN THAT HAD COME TO INTERVIEW
9 ME WAS THE ONLY ONE THAT I HAD -- THAT I MENTIONED IT TO.
10 Q. DID YOU NOT MENTION ANYTHING ABOUT TYPE OF MEDICATION,
11 MORPHINE OR ANYTHING LIKE THAT?
12 A. NO.
13 Q. AND DID THEY INDICATE TO YOU ANY TYPE OF A TREATMENT
14 PLAN THAT THEY WERE GONNA FOLLOW?
15 A. NO. JUST SAID THE DOCTOR WOULD COME IN AND EXAMINE HER
16 AND INTERVIEW HER AND THAT HE WOULD GO FROM THERE AND THEN
17 CONTACT WOULD BE MADE BACK TO US AFTER HIS CONSULTATION WITH
18 HER.
19 Q. AND SO AFTER ABOUT -- THE MEETING WITH THE INDIVIDUAL
20 AND GETTING ALL THE FORMS FILLED OUT, APPROXIMATELY WHAT
21 TIME WAS IT WHEN YOU LEFT?
22 A. IT WAS NEAR 7:00 O'CLOCK. AND WE GOT HER IN BED AND SHE
23 WAS NOT -- SHE WASN'T UPSET OR ANYTHING. I MEAN SHE WAS --
24 SHE'S STILL IN THIS ANXIOUS STATE, BUT I TOLD HER THAT I
25 NEEDED TO LEAVE AND SHE ACCEPTED THAT, BUT AS SOON AS I
789
1 WALKED OUT INTO THE HALL, SHE STARTED TO CALL FOR ME. AND I
2 WAS -- FELT VERY UNHAPPY ABOUT HAVING TO LEAVE HER IN THAT
3 SITUATION.
4 Q. AND AFTER YOU HAD LEFT, WHAT DID YOU DO?
5 A. WE JUST CAME BACK HOME AND THE NEXT -- WENT TO BED, AND
6 THE NEXT MORNING, WE HAD AN ASSIGNMENT IN SALT LAKE THAT WE
7 WENT TO. AND WE WERE THERE AND A PHONE CALL CAME ABOUT 8:30
8 AND SAID -- AND IT WAS FROM MY SISTER, AND THEY -- SHE SAID
9 MOTHER HAD DIED. AND I WAS ABSOLUTELY TAKEN ABACK. I
10 COULDN'T BELIEVE THAT THAT HAD HAPPENED BECAUSE WE HAD --
11 ONE OF THE REASONS WE HAD TAKEN HER TO THE HOSPITAL TO SEE
12 IF THERE WAS SOMETHING MORE TO DO, THE DOCTOR HAD ALSO TOLD
13 US THAT HER HEART WAS VERY STRONG. AND I THOUGHT THAT THAT
14 WOULD NEVER TAKE HER AND THAT WE NEEDED TO HAVE SOMETHING
15 THAT SHE COULD -- AS LONG AS SHE WAS GOING TO LIVE, NOT BE
16 IN THIS TERRIBLE MENTAL STATE.
17 Q. SO AFTER HAD YOU LEARNED YOUR MOTHER HAD PASSED ON, WHAT
18 HAPPENED? WHAT DID YOU DO?
19 A. WELL, WE LEFT IMMEDIATELY AND CAME TO THE DAVIS
20 HOSPITAL.
21 Q. WHO DID YOU MEET WITH AT THE HOSPITAL?
22 A. THE NURSE MET US AND THEN MY SISTER AND I WENT INTO THE
23 ROOM WHERE MY MOTHER WAS, AND WHILE WE WERE THERE, THE
24 DOCTOR WEITZEL CAME IN AND --
25 Q. LET ME ASK, DID YOU RECOGNIZE DR. WEITZEL?
790
1 A. I DIDN'T KNOW HIM.
2 Q. DO YOU RECOGNIZE HIM TODAY?
3 A. AS I REMEMBER, I THOUGHT HE HAD A BEARD ON AND WORE
4 GLASSES, BUT SO --
5 Q. SO IF I WERE -- YOU WOULDN'T BE ABLE TO POINT HIM OUT IN
6 THE COURTROOM.
7 A. WELL, I COULD BECAUSE I'VE SEEN HIS PICTURE IN THE
8 PAPER.
9 Q. OKAY. BUT I'M JUST SAYING --
10 A. BUT NOT FROM THAT.
11 Q. NOT FROM THAT -- NOT FROM THAT EXPERIENCE.
12 A. NO.
13 Q. THAT'S WHAT I SAID. BUT HE DID REPRESENT HIMSELF THAT
14 HE WAS THE DR. WEITZEL THAT WAS WORKING WITH YOUR MOTHER?
15 A. YES, YES.
16 Q. OKAY. WHAT HAPPENED -- AND, WELL, WHO WAS PRESENT WHEN
17 THIS HAPPENED, WHEN YOU HAD THIS CONVERSATION?
18 A. AS BEST I REMEMBER, I THINK MY SISTER WAS THERE AND HER
19 FRIEND AND MYSELF.
20 Q. WHAT HAPPENED?
21 A. MY HUSBAND WAS ALSO THERE, BUT HE WAS OUT IN THE HALL AT
22 THAT TIME.
23 Q. WAS THIS THE FIRST TIME YOU'D EVER SEEN THE DOCTOR?
24 A. YES, IT WAS.
25 Q. OKAY. YOU HAD NO CONFERENCE, TELEPHONE CONFERENCES OR
791
1 ANYTHING WITH HIM --
2 A. NO, I HAD NOT.
3 Q. AND WHAT HAPPENED WHEN HE CAME IN?
4 A. HE JUST SAID THAT MY MOTHER HAD DIED OF HEART FAILURE.
5 AND I -- AS I RECALL, I SAID, HEART FAILURE? BECAUSE I
6 THOUGHT SHE HAD A STRONG HEART, I'D ALWAYS BEEN TOLD. AND
7 AS I RECALL, HE ALSO INDICATED THAT SHE HAD HAD SOME -- A
8 MORPHINE IN THE NIGHT TO -- FOR THIS ANXIETY THAT SHE HAD Pain.
9 HAD. AND I JUST THOUGHT THROUGH MY MIND, I THINK THAT MUST
10 HAVE RELAXED HER ENOUGH THAT IT ALLOWED HER TO GO. I DIDN'T
11 STILL AT THAT TIME THINK THAT IT WAS HER HEART.
12 Q. AND WAS THERE ANYTHING ELSE, ANY OTHER CONVERSATION THAT
13 YOU HAD?
14 A. NOT MUCH. WE DIDN'T -- MAYBE FOUR, FIVE MINUTES WE WERE
15 TOGETHER, AS I RECALL.
16 Q. WAS THERE ANY MENTION OF ANY TYPE OF TESTS OR ANY TYPE
17 OF THINGS LIKE THAT THAT HAD BEEN RUN GIVEN TO YOUR MOTHER?
18 A. I HAD KNOWN HE MENTIONED IT TO MY HUSBAND WHO WAS, LIKE
19 I SAID, OUT IN THE HALL, AND THAT I MAY HAVE KNOWN IT AT THE
20 TIME, TOO. BUT I KNOW THAT MY HUSBAND AND I TALKED ABOUT
21 IT, THAT SHE HAD BEEN GIVEN AN E.K.G. TO -- AND I WAS
22 DISTRESSED THAT THEY HAD HAD TO TAKE HER FROM THESE -- INTO
23 MORE UNFAMILIAR SURROUNDINGS. I DIDN'T KNOW AT THE TIME IT
24 WAS SO EARLY THE MORNING, TOO, I JUST --
25 Q. WHAT WAS YOUR UNDERSTANDING OF WHEN THE E.K.G. WAS
792
1 GIVEN?
2 A. EARLY, ABOUT 5:00 IN THE MORNING.
3 Q. I MEAN WHAT TIME -- WHAT TIME DID YOU ASSUME THEY HAD
4 GIVEN -- DID YOU -- YOU'VE LEARNED THAT NOW, I ASSUME, IN
5 THE LAST LITTLE WHILE?
6 A. RIGHT.
7 Q. AT THE TIME --
8 A. I DIDN'T -- WHAT I DIDN'T -- I DON'T KNOW THAT I KNEW
9 THAT THEY HAD DONE -- WELL, LET ME THINK. IT'S -- LIKE I
10 SAID, IT'S -- BETWEEN THE CONVERSATION I'VE HAD WITH MY
11 HUSBAND AND --
12 Q. YEAH, IF I UNDERSTAND IT THEN, IF THAT'S NOT CLEAR IN
13 YOUR MIND, WE DON'T NEED TO -- WE DON'T NEED TO ACTUALLY GET
14 INTO IT.
15 A. UH-HUH.
16 Q. SO AFTER YOU'D HAD THE CONVERSATION --
17 A. WELL, THEY ALSO SAID THEY HAD DONE X-RAYS, AS I RECALL,
18 AND I WAS DISTRESSED ABOUT THAT, THAT THEY ALMOST --
19 Q. TAKEN HER OUT OF A FAMILIAR ENVIRONMENT.
20 A. YEAH.
21 Q. SO AFTER YOU HAD THIS CONVERSATION THAT LASTED ABOUT HOW
22 LONG?
23 A. ABOUT FIVE MINUTES.
24 Q. THEN WHAT HAPPENED?
25 A. WE SPENT A LITTLE TIME IN THE ROOM THERE WITH MY MOTHER,
793
1 AND THEN WE LEFT.
2 Q. DURING THIS PERIOD OF TIME, DID THE DOCTOR EVER MENTION
3 ANYTHING TO YOU ABOUT AN AUTOPSY OR PERHAPS WANTING TO HAVE
4 ANYTHING LIKE THAT DONE?
5 A. NO, HE DID NOT.
6 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS, YOUR
7 HONOR.
8 MS. BARLOW: YOUR HONOR, EXCUSE ME.
9 MR. MAJOR: OH, I GUESS I HAVE ONE MORE.
10 Q. DURING THE TIME THAT YOU HAD YOUR MOTHER STAYING WITH
11 YOU AND THIS PERIOD OF TIME, DID YOUR MOTHER EVER -- WERE
12 YOU EVER TOLD YOUR MOTHER HAD HIGH BLOOD PRESSURE?
13 A. MY MOTHER HAD EXTREMELY LOW BLOOD PRESSURE.
14 Q. YOU WERE NEVER -- WAS SHE EVER GIVEN ANY BLOOD PRESSURE
15 MEDICINE FOR THAT?
16 A. NO. I MEAN IT WAS EXTREMELY LOW.
17 Q. DID SHE EVER DURING THIS PERIOD OF TIME SHE WAS LIVING
18 WITH YOU AT ANY TIME EVER COMPLAIN OF CHEST PAIN?
19 A. NO.
20 Q. DID SHE EVER HAVE ANY TYPE OF NEED FOR NITRO GLYCERINE
21 PILLS?
22 A. NO.
23 Q. YOU NEVER GAVE HER ANY --
24 A. NO.
25 Q. -- YOU DIDN'T KNOW SHE WAS TAKING IT.
794
1 A. NO.
2 MR. MAJOR: OKAY. I BELIEVE THAT'S ALL WE HAVE.
3 THE COURT: MR. STIRBA?
4 MR. STIRBA: YES, THANK YOU, YOUR HONOR.
5 CROSS-EXAMINATION
6 BY MR. STIRBA:
7 Q. GOOD MORNING, MISS POLSON -- POHLMAN RATHER. SORRY.
8 A. UH-HUH.
9 Q. I WANNA JUST GO BACK A LITTLE BIT AND GO OVER SOME OF
10 YOUR TESTIMONY SO IT'S CLEAR. YOUR MOM HAD THE HIP FRACTURE
11 IN JUNE OF '95, IS THAT RIGHT?
12 A. UH-HUH.
13 Q. AND YOU'VE TESTIFIED THAT THAT HIP FRACTURE, THERE WAS A
14 CHANGE THAT OCCURRED IN HER BEHAVIOR AFTER THE HIP FRACTURE
15 AND IN TERMS OF THE WAY SHE ORIENTED HERSELF, IS THAT RIGHT?
16 A. THAT'S CORRECT.
17 Q. AND YOU THOUGHT THAT WAS A SIGNIFICANT CHANGE, ISN'T
18 THAT TRUE?
19 A. YES, I DID.
20 Q. IN OTHER WORDS, BEFORE THE HIP FRACTURE, SHE DIDN'T SHOW
21 THIS FEAR, AS YOU'VE DESCRIBED IT, AND THIS ORIENTATION OF
22 BEING AFRAID, ISN'T THAT CORRECT?
23 A. NOT TO THE EXTENT THAT SHE DID AFTER, THAT'S TRUE.
24 Q. BUT CERTAINLY AFTER THAT, IT BECAME APPARENT TO YOU THAT
25 THERE WAS SOME KIND OF MENTAL PROBLEM OR PSYCHOLOGICAL
795
1 PROBLEM, TRUE?
2 A. TRUE.
3 Q. AND IT'S TRUE, IS IT NOT, THAT FROM THE TIME OF THE HIP
4 FRACTURE IN JUNE OF 1995 THROUGH THE TIME THAT SHE WAS
5 ADMITTED TO THE HOSPITAL, SHE ALSO LOST A SIGNIFICANT AMOUNT
6 OF WEIGHT, ISN'T THAT CORRECT?
7 A. WOULD YOU STATE THAT AGAIN FOR ME?
8 Q. SURE. FROM JUNE OF 1995 WHEN SHE --
9 A. WHEN SHE HAD THE HIP SURGERY --
10 Q. -- HAD THE HIP FRACTURE AND SURGERY --
11 A. UH-HUH.
12 Q. -- UNTIL TIME THAT SHE WAS ADMITTED AT THE END OF
13 DECEMBER OF 1995 --
14 A. OH, AT THE END OF DEC --
15 Q. -- IN THE HOSPITAL, SHE HAD LOST A CONSIDERABLE AMOUNT
16 OF WEIGHT, ISN'T THAT CORRECT?
17 A. THAT'S CORRECT.
18 Q. YOU MAY NOT KNOW PRECISELY, BUT THE RECORDS INDICATE
19 ABOUT 30 POUNDS. DOES THAT SQUARE WITH YOUR RECOLLECTION?
20 A. I KNEW IT WAS A LOT BECAUSE SHE HAD QUIT EATING A LOT,
21 ESPECIALLY TOWARD THE END, SHE WOULD TAKE ONLY A MOUTHFUL OR
22 TWO.
23 Q. AND YOU HAD SOME DOCTORS WHO WERE TAKING CARE OF HER, AT
24 LEAST SEEING HER DURING THIS SIX-MONTH PERIOD LET'S SAY FROM
25 THE TIME OF THE HIP SURGERY UNTIL THE ADMISSION IN THE
796
1 HOSPITAL, ONE OF THOSE DOCTORS WAS DR. WILDING, IS THAT
2 CORRECT?
3 A. YES.
4 Q. AND THEN ALSO THERE WAS ANOTHER DOCTOR, I GUESS HIS
5 PARTNER, A DR. KELLER.
6 A. COULD HAVE BEEN, UH-HUH.
7 Q. DO YOU REMEMBER DR. KELLER AS WELL?
8 A. I KNOW -- IT'S NOT EXTREMELY SHARP IN MY MIND WHO WE
9 HAD. I KNOW WE HAD SEVERAL PHONE CONVERSATIONS WITH
10 PHYSICIANS AND TRYING TO GET SOME HELP FOR HER, AND I KNOW
11 DR. WILDING DID SEE HER, AND IF THE RECORD SAYS DR. KELLER
12 WAS ALSO INVOLVED, I'M SURE HE WAS.
13 Q. I THINK HE'S -- THEY'RE PARTNERS. AND DR. WILDING
14 ACTUALLY WOULD SEE YOUR MOM IN HIS OFFICE, IS THAT RIGHT?
15 A. I WOULD -- MY RECOLLECTION IS THAT HE CAME TO THE CARE
16 CENTER, BUT --
17 Q. OKAY. SO MAYBE THERE WERE TIMES AT THE CARE CENTER, BUT
18 AT LEAST HE ACTUALLY SAW YOUR MOM --
19 A. YES.
20 Q. -- AND CONDUCTED EXAMINATIONS AND DO WHAT --
21 A. UH-HUH.
22 Q. -- DOCTORS DO WHEN THEY'RE TRYING TO HELP SOMEBODY.
23 A. UH-HUH.
24 Q. AND AM I CORRECT THAT YOU WOULD BE THERE AT TIMES WITH
25 THE DOCTOR AND YOUR MOM WHEN HE WAS EXAMINING HER OR TRYING
797
1 TO PROVIDE HER SOME CARE?
2 A. NO. I THINK THAT TIMES THAT HE CAME TO THE CARE CENTER,
3 I WAS NOT THERE. I DIDN'T KNOW THAT HE WAS GOING TO BE
4 DROPPING IN.
5 Q. HOW ABOUT AT HIS OFFICE, DO YOU EVER RECALL BEING THERE
6 WITH YOUR MOTHER --
7 A. NO, I DON'T.
8 Q. -- AT HIS OFFICE? AND I TAKE IT BEFORE THE HIP SURGERY,
9 YOUR MOM COULD WALK OKAY?
10 A. SHE COULD.
11 Q. AND THEN AT SOME POINT AFTER THE HIP SURGERY IS WHEN IT
12 BECAME NECESSARY FOR HER TO BE IN A WHEELCHAIR.
13 A. YES. BUT SHE STILL WAS WALKING. I MEAN WE WOULD WALK
14 HER FROM THE WHEELCHAIR INTO THE BATHROOM AND TAKE CARE OF
15 HER NEEDS THERE AND WALK HER BACK INTO THE WHEELCHAIR.
16 Q. BUT IS IT FAIR TO SAY THAT THERE WAS A DETERIORATION IN
17 HER ABILITY TO WALK AND AMBULATE FROM THE TIME OF THE HIP
18 SURGERY UNTIL HER ADMISSION --
19 A. SHE BECAME WEAKER --
20 Q. -- INTO THE HOSPITAL?
21 A. -- YES, SHE BECAME WEAKER BECAUSE SHE -- LIKE I SAID,
22 SHE WASN'T EATING PROPERLY AT ALL. AND BUT SHE WAS NOT
23 HAVING TO BE LIFTED FROM PLACE TO PLACE. SHE COULD TAKE A
24 FEW STEPS, THOUGH MOST OF THE TIME SHE WAS AT THE END IN THE
25 WHEELCHAIR. SHE -- WE WOULD WHEEL HER DOWN TO THE CAFETERIA
798
1 AND SHE WOULD SIT IN A WHEELCHAIR AT THE TABLE.
2 Q. AND CERTAINLY PRE-HIP SURGERY IN JUNE, SHE WAS NOT
3 WHEELCHAIR BOUND, WAS SHE?
4 A. NO.
5 Q. AND IT'S AS YOU'VE DESCRIBED IT, AND I REALIZE THIS IS
6 DIFFICULT IN TERMS OF JUST TRYING TO DESCRIBE IT, BUT WAS
7 THERE A PROGRESSION IN TERMS OF YOUR MOM'S MENTAL STATE FROM
8 JUNE UNTIL THE ADMISSION INTO THE HOSPITAL?
9 A. UH-HUH. A DETERIORATION?
10 Q. YES.
11 A. YES.
12 Q. AND SHE GOT MORE FEARFUL?
13 A. THAT'S RIGHT.
14 Q. AND MORE FRIGHTENED?
15 A. YES. BUT SHE -- AT THE BEGINNING IT WAS NOT A GOOD
16 SITUATION EITHER, BUT SHE -- I'M SURE THERE WAS A
17 DETERIORATION OF TO -- AT THE END ESPECIALLY, THAT'S WHY MY
18 SISTER FELT LIKE WE HAD TO DO SOMETHING MORE. WE HAD TO
19 FIND SOMETHING THAT COULD GIVE HER SOME RELIEF FROM THIS
20 EXTREME TERROR THAT SHE WAS EXPERIENCING ALMOST 24 HOURS A
21 DAY.
22 Q. AND YOUR SISTER'S DIANE, IS THAT RIGHT?
23 A. THAT'S CORRECT.
24 Q. AND IN TERMS OF THE CIRCUMSTANCES THAT YOUR MOM WAS
25 EXPERIENCING FROM JUNE UNTIL SHE WAS ADMITTED INTO THE
799
1 HOSPITAL, IT'S TRUE, IS IT NOT, THAT YOU TRIED SOME
2 MEDICATIONS OR DOCTORS TRIED SOME MEDICATIONS TO TRY TO HELP
3 HER OUT?
4 A. THAT'S RIGHT. SOME ANTIDEPRESSANTS AND SUCH, THAT'S --
5 Q. THESE WOULD BE -- CAN I GENERALLY CALL THEM PSYCH MEDS,
6 IS THAT YOUR UNDERSTANDING?
7 A. I ASSUME SO. IT WAS FOR THE DEPRESSION THAT SHE WAS
8 HAVING.
9 Q. AND ONE OF THE DOCTORS INVOLVED WITH THAT WAS DR.
10 WILDING?
11 A. YES.
12 Q. AND THERE WAS SOME OTHER DOCTORS WHO ALSO WERE TRYING TO
13 HELP --
14 A. YES.
15 Q. -- IN TERMS OF --
16 A. -- THERE WAS OTHER -- ANOTHER DOCTOR THAT WE HAD
17 CONTACTED AT FIRST THAT SEEMED TO BE VERY EFFICIENT, AND
18 THEN HE LEFT THE AREA. AND THEN WE WERE -- IT SEEMED LIKE
19 ONCE WE FELT LIKE WE HAD SOMEBODY THAT MIGHT BE ABLE TO BE
20 HELPFUL TO US, THAT EITHER EVAP -- LIKE THAT SEEMED TO
21 EVAPORATE AWAY, AND WE WERE BACK AT SQUARE ONE AGAIN AS TO
22 WHAT TO DO.
23 Q. SO THE -- WHAT THE DOCS WERE DOING IN TERMS OF WHATEVER
24 MEDICATIONS THEY WERE PRESCRIBING, NONE OF THEM WERE
25 EFFECTIVE PRIOR TO THE ADMISSION OF DAVIS HOSPITAL?
800
1 A. NOT FOR AN EXTENDED PERIOD OF TIME. SOMETIMES THEY MAY
2 SEEM TO HAVE BEEN HELPFUL, BUT IT JUST WOULDN'T LAST VERY
3 LONG.
4 Q. AND THEN WHEN WE GOT TO THE POINT IN DECEMBER, THE
5 LATTER PART OF DECEMBER, IN TERMS OF THE ADMISSION IN THE
6 HOSPITAL, AM I CORRECT THAT AT THAT POINT EVEN YOU AND DIANE
7 COULDN'T CONSOLE YOUR MOM?
8 A. THAT'S RIGHT.
9 Q. AND BY BEHAVIOR, NOT ONLY WOULD SHE SHOW THIS FEARFUL
10 BEHAVIOR, BUT WOULD SHE HAVE A TENDENCY OCCASIONALLY TO
11 SCREAM?
12 A. SHE WOULD CALL MY NAME OUT IN A LOUD VOICE. BUT AS FAR
13 AS YELLING, SCREAMING LIKE THAT, IT WAS JUST MORE CALLING
14 BARBARA, BARBARA.
15 Q. OKAY. SO WHEN WE GET TO THE POINT AT THE END OF
16 DECEMBER, YOU AND DIANE WHO WERE TRYING TO TAKE CARE OF YOUR
17 MOM, ARE SORT OF AT THE END OF THE LINE; THERE DOESN'T SEEM
18 TO BE ANY PHYSICIAN WHO'S BEEN ABLE TO HELP HER AT THAT
19 POINT, IS THAT RIGHT?
20 A. THAT'S RIGHT. WE HAD -- FOR THE SIX MONTHS PREVIOUS TO
21 THAT, WE HAD BEEN CARING FOR HER. IT WAS AS IF SHE WAS IN
22 OUR HOME EXCEPT AT NIGHT, WE WERE ABLE TO GO HOME TO REST.
23 WE WERE THERE THAT OFTEN, THAT MUCH.
24 Q. AND YOU -- I THINK YOU TOLD US A LITTLE BIT ABOUT
25 AMBIEN. IS THAT A SLEEP MEDICATION OR -- THAT WAS GIVEN
801
1 HER. I ASSUME IF SHE DIDN'T GET THAT, SHE WOULD HAVE
2 CONTINUED ON --
3 A. THAT'S RIGHT.
4 Q. -- IN THE MIDDLE OF THE NIGHT, IS THAT RIGHT?
5 A. SHE NEVER WOULD HAVE RELAXED TO -- TO FALL ASLEEP. SHE
6 WAS AWAKE A LOT.
7 Q. JOHN, TECHNICAL. I'M GONNA SHOW YOU AN ENTRY FROM
8 DR. WILDING'S RECORDS, MISS POHLMAN. AND THIS DOCUMENT IS
9 DATED -- IF YOU CAN SEE IT, IS THAT OKAY? CAN YOU SEE IT
10 FINE RIGHT WHERE YOU'RE SEATED?
11 A. UH-HUH.
12 Q. 11/18/95. AND IT'S -- THE NAME OF THE PHYSICIAN IS
13 DR. KELLER. IT'S -- ACTUALLY, WE GOT IT FROM DR. WILDING'S
14 OFFICE, BUT HE WAS THE PHYSICIAN AT THAT TIME. AND THEN
15 THEY HAVE THE NAME OF THE PATIENT, YOUR MOM. AND THEN THEY
16 GO ON TO SAY UNDER PATIENT COMPLAINTS AND NURSES'
17 OBSERVATIONS, FELL ON RIGHT SIDE YESTERDAY AFTERNOON. C.O.,
18 I'LL JUST TELL YOU STANDS FOR COMPLAINS OF PAIN, RIGHT RIB
19 CAGE AREA TODAY. LORTAB GIVEN AT 12:30. DAUGHTER WISH A
20 CONSULT.
21 NOW, IN SEEING THAT, DOES THAT REFRESH YOUR
22 RECOLLECTION ABOUT THAT EVENT?
23 A. WELL, LIKE I SAID, WHEN I CAME INTO HER ROOM, SHE WAS
24 STANDING AT THE END OF THE BED AND SAID SHE COULD NOT MOVE.
25 Q. NOW, THIS IS -- THIS IS ON 11/18/95. IN OTHER WORDS,
802
1 THIS IS POST THE HIP FRACTURE, POST THE SURGERY.
2 A. OH, OH.
3 Q. SO THIS IS -- THIS IS ABOUT A MONTH, WELL, SIX WEEKS OR
4 SO BEFORE HER ADMISSION INTO DAVIS. AND APPARENTLY
5 DR. KELLER SAW HER --
6 A. SO THIS IS WHEN SHE WAS IN THE CARE CENTER. ALL RIGHT.
7 Q. YEAH. AND THERE'S A REFERENCE THERE TO DAUGHTER WISH A
8 CONSULT AND LORTAB GIVEN. I WAS JUST WONDERING IF SEEING
9 THIS REFRESHES YOUR MEMORY ABOUT WHAT HAPPENED AND IF YOU
10 RECALL THIS PROBLEM?
11 A. I THINK -- I HAD NOT REMEMBERED THIS, BUT I -- SEEMS
12 THAT SHE WAS IN BEING BATHED AND FELL SOMEWHERE WITH
13 RELATION TO THE WHEELCHAIR MAYBE. MAYBE THIS IS WHAT THIS
14 IS TALKING ABOUT. THEY SAID THAT SHE -- I DON'T KNOW WHAT
15 THIS CONSULT -- UNLESS IT WAS WITH MY SISTER THAT I WAS
16 GOING TO CONSULT.
17 Q. I DON'T KNOW EITHER. IT JUST SAYS DAUGHTER WISHES
18 CONSULT. YOU ASSUME, WOULD YOU NOT, THAT THAT NORMALLY
19 WOULD BE MAYBE A MEDICAL CONSULT; IN OTHER WORDS, ANOTHER
20 PHYSICIAN?
21 A. PROBABLY. THAT'S JUST BEEN --
22 Q. IT GOES --
23 A. IT'S COMING BACK INTO MY MEMORY, BUT IT HAD BEEN WIPED
24 OUT.
25 Q. SURE, SURE. IS THERE ANYTHING ELSE THEN THAT YOU
803
1 REMEMBER NOW SEEING THIS IN TERMS OF REFRESHING YOUR MEMORY
2 ABOUT WHAT HAPPENED TO YOUR MOM ON OR ABOUT THIS DATE SUCH
3 THAT SHE WAS COMPLAINING OF PAIN --
4 A. MAYBE MY SISTER WOULD MORE. AS I RECALL, IT WAS JUST
5 SOMETHING THAT SHE -- IT'S JUST NOT CLEAR ENOUGH IN MY MIND
6 TO BE MUCH HELP.
7 Q. OKAY. THEN I'LL PUSH THIS UP SO WE CAN ALL SEE IT. AND
8 UNDER DOCTOR'S OBSERVATIONS AND NEW FINDINGS, IT SAYS --
9 MR. MAJOR: WELL, YOUR HONOR, I THINK WE MAY HAVE
10 TO OBJECT AT THIS TIME. I'M NOT SURE -- WE'RE TALKING ABOUT
11 DOCTOR'S OBSERVATION. WE DON'T KNOW WHICH DOCTOR, WE DON'T
12 KNOW IN WHAT RELATIONSHIP, WHEN THIS WAS DONE IN
13 RELATIONSHIP TO THIS CONSULT. WE'VE GOT DR. WILDING, WE'VE
14 GOT DR. KELLER. YOU KNOW. WE DON'T KNOW WHICH DOCTOR PUT
15 THIS IN. WE INTEND TO HAVE TO CALL THE DOCTOR TO EXPLAIN
16 THIS, SO WITHOUT KNOWING WHICH DOCTOR THAT IS, I DON'T THINK
17 THAT BECOMES RELEVANT AT THIS POINT IN TIME.
18 MR. STIRBA: IN TERMS OF THE PHYSICIAN, YOUR HONOR,
19 IT SAID DR. KELLER. AND AS I GO FURTHER HERE -- AND THAT'S
20 DR. KELLER'S SIGNATURE. AND THIS IS D-9 WHICH WE OFFERED
21 YESTERDAY, YOUR HONOR, PROVIDED COUNSEL WITH YESTERDAY
22 MORNING.
23 MR. MAJOR: THAT HASN'T BEEN ADMITTED AND AT THIS
24 POINT IN TIME IT'S HEARSAY. I MEAN WHAT -- I DON'T SEE THE
25 RELEVANCE OF WHAT IT GETS AND THIS WITNESS EITHER AND IT'S
804
1 GONNA REQUIRE US TO HAVE TO CALL THE DOCTOR TO EXPLAIN
2 EXACTLY WHAT THIS ALL MEANS.
3 THE COURT: WHAT IS THE REASON OF ASKING THE
4 QUESTION, I GUESS IS --
5 MR. STIRBA: BECAUSE THERE'S -- THERE'S SOME
6 FINDINGS HERE RELATING TO MISS ANDERSON'S MEDICAL CONDITION.
7 I BELIEVE I'M ENTITLED TO ASK MISS POHLMAN IF SHE REMEMBERS
8 SUCH FINDINGS OR ANY DISCUSSION RELATING --
9 THE COURT: OVERRULED.
10 MR. MAJOR: SHE'S ALREADY TESTIFIED, YOUR HONOR,
11 THAT SHE DOESN'T REMEMBER THIS. SHE DOESN'T REMEMBER THE
12 INCIDENT OF THE CONSULT. AND WE HAVE ANOTHER DAUGHTER. WE
13 DON'T EVEN KNOW IF THIS IS THE DAUGHTER THAT WAS TALKING
14 ABOUT THE CONSULT.
15 THE COURT: OKAY. WELL, HE CAN ASK HER IF SHE
16 KNOWS ANYTHING ABOUT THIS NEXT SECTION. IF SHE DOESN'T, SHE
17 DOESN'T.
18 Q. (BY MR. STIRBA) THE NEXT PORTION, MISS POHLMAN,
19 DOCTOR'S OBSERVATIONS AND FINDINGS, AND IT SAYS, RIGHT CHEST
20 PAIN FROM FALL YESTERDAY. LUNGS CLEAR. THEN IT HAS X-RAY,
21 AND THEN THERE'S AN ARROW. AND IT SAYS POSSIBLE LUNG TUMOR.
22 DO YOU --
23 A. I WAS NOT AWARE OF THAT.
24 Q. YOU WERE NOT AWARE OF THAT.
25 A. UN-UNH.
805
1 Q. HAVE ANY RECOLLECTION OF EITHER DR. KELLER OR
2 DR. WILDING ADVISING YOU OF SOME PROBLEM ASSOCIATED WITH
3 YOUR MOM'S LUNGS OR --
4 A. NO.
5 Q. -- HER BREATHING?
6 A. NO, I DON'T. I -- IT IS VAGUELY FAMILIAR ABOUT HER
7 BEING IN THE -- BEING BATHED AND -- I DON'T KNOW IF SHE
8 WOULD HAVE BEEN SITTING DOWN AND SLIPPED OVER OR WHAT, BUT
9 IT DOES NOW THAT I RECALL -- SEE THAT, SEEMS SOMEWHAT
10 FAMILIAR THAT SHE MAY HAVE HAD THAT SITUATION LIKE THAT THAT
11 SHE FELL. BUT EVIDENTLY, IT WASN'T ENOUGH -- IT DIDN'T LAST
12 LONG ENOUGH THAT IT WAS -- STAYED IN MY MEMORY THAT IT --
13 THE EFFECT FROM THE FALL WAS ONE THAT SHE SEEMED TO BE UPSET
14 ABOUT, HURTING ABOUT, OTHER THAN MAYBE FOR THE TIME THAT IT
15 WOULD BE -- YOU'D BE BRUISED AND WOULD FEEL NORMALLY LIKE
16 THAT. IT WASN'T SOMETHING THAT I RECALL THAT IT WAS --
17 BECAME A PROBLEM.
18 Q. DO YOU REMEMBER AT ABOUT THIS TIME PERIOD HAVING A
19 DISCUSSION WITH EITHER DR. WILDING OR DR. KELLER ABOUT
20 EXTRAORDINARY MEASURES AND WHETHER THEY WOULD BE USED IN THE
21 EVENT YOUR MOM HAD A SERIOUS MEDICAL CONDITION?
22 A. I DIDN'T TALK WITH THE DOCTORS. I HAD FILLED OUT THOSE
23 FORMS MONTHS BEFORE, AS I FILLED THEM OUT ON MYSELF, THAT I
24 DIDN'T -- WE WOULD NOT DO EXTRAORDINARY MEASURES.
25 Q. THESE WERE FILLED OUT MONTHS BEFORE THE ADMISSION TO THE
806
1 HOSPITAL? AND I'M TALKING ABOUT DAVIS HOSPITAL?
2 A. NO, NO, I'M TALKING ABOUT DURING THE BEGINNING OF THAT
3 TIME PERIOD AS I RECALL IS WHEN I THOUGHT THIS IS WHEN I --
4 IT LOOKED LIKE SHE WAS GOING INTO THE CARE CENTER FOR A
5 TIME, THAT THOSE -- I WANTED THOSE FORMS IN A LEGAL MANNER.
6 Q. PARDON ME?
7 A. I WANTED THE FORMS FILLED OUT LEGALLY THAT --
8 Q. I SEE.
9 A. -- WHERE YOU GIVE THE LIVING WILL, AND I FILLED THEM OUT
10 ON MYSELF, AND MY HUSBAND DID IT THE SAME TIME.
11 Q. AND THEY WERE PROVIDED TO THE PIONEER CARE CENTER?
12 A. THAT'S RIGHT.
13 Q. NOW, I WANNA DIRECT YOUR ATTENTION TO THE BOTTOM ENTRY
14 WHICH IS 11/18/95. AND YOU SEE DOWN IN THE BOTTOM LITTLE
15 CORNER THERE IT SAYS B.K., AN THEN SLASH J.C. B.K. STANDS
16 FOR BRUCE KELLER. HE'S THE DOCTOR WE -- THAT WAS ON THE
17 OTHER DOCUMENT. AND SAYS 11/18/96 --
18 THE COURT: FIVE.
19 MR. STIRBA: THANK YOU, YOUR HONOR.
20 Q. IT SAYS, FELL LAST NIGHT. HURT HER RIGHT ANTERIOR RIB
21 CAGE. CHEST X-RAY WAS TAKEN. THERE APPEARS TO BE A TUMOR
22 IN THE LUNG. I AM GOING TO HAVE IT REVIEWED BY THE
23 RADIOLOGIST. SHE IS GOING TO CHECK BACK FROM THE NURSING
24 HOME. HER DAUGHTER WAS WITH HER AND INDICATED TO ME THAT
25 THEY DIDN'T WANT ANYTHING DONE, BUT THEY WERE HOPING THAT
807
1 SHE COULD NOT SUFFER, AND THEY WERE GOING TO LET HER DIE IF
2 SOMETHING SERIOUS WENT WRONG.
3 DO YOU RECALL --
4 A. NO, I DON'T RECALL THAT SITUATION.
5 Q. -- SUCH A CONVERSATION --
6 A. I DON'T, BUT IF THAT WAS ME, I KNOW IT WOULD BE BECAUSE
7 OF WHAT HAD HAPPENED BEFORE WITH THE ANESTHETIC. THAT --
8 AND AT HER AGE AND HER WEAK, FRAIL CONDITION, THAT I
9 WOULDN'T HAVE ANY MORE SURGERY DONE. AND I HAVE FELT -- I
10 FELT SINCE THAT TIME, IF HAD I KNOWN BEFORE WHAT I KNEW
11 THEN, THAT HER MENTAL STATE WOULD HAVE DETERIORATED LIKE IT
12 DID AFTER THAT HIP SURGERY, I WOULD REALLY PROBABLY NOT EVEN
13 HAVE HAD THAT TAKEN -- DONE BECAUSE IT WAS -- THE PHYSICAL
14 PAIN THAT SHE WAS IN WAS SO MUCH MORE THAN ANY PHYS -- THE
15 MENTAL PAIN THAT SHE WAS IN WAS SO MUCH MORE THAN ANY
16 PHYSICAL PAIN THAT SHE COULD HAVE BE IN, IT WAS EXTREME.
17 Q. IN OTHER WORDS, IN THAT RETROSPECT GIVEN THE
18 DEVELOPMENTS AFTER THE SURGERY --
19 A. AFTER THE ANESTHETIC.
20 Q. YEAH, THE HIP SURGERY, DEVELOPING MENTALLY FOR HER, YOU
21 WOULD HAVE OPTED --
22 A. IT WAS TERRIBLE.
23 Q. -- THAT SHE WOULDN'T HAVE THE SURGERY.
24 A. I PROBABLY WOULD HAVE BEEN IN THAT SITUATION. AND
25 THAT'S WHERE THIS -- I DON'T HAVE ANY RECOLLECTION OF
808
1 THAT -- THE LUNG TUMOR. I DON'T --
2 Q. AND YOU DON'T HAVE A RECOLLECTION OF THAT, A
3 CONVERSATION LIKE THAT ABOUT THIS TIME WITH DR. KELLER?
4 A. I DON'T.
5 Q. THERE'S AN ENTRY ON 7/27/95 THAT'S SORT OF IN THE MIDDLE
6 THERE. AND IT LOOKS LIKE THE INITIALS, AND THEN IT'S ALSO
7 SIGNED D.W. AND THAT I'LL TELL YOU STANDS FOR DAVID WILDING.
8 IT'S DR. WILDING. AND IF YOU'LL NOTICE IN THAT ENTRY WHERE
9 IT SAYS THERE'S THE BLOOD PRESSURE 110 OVER 60, IT SAYS, SHE
10 IS ALERT. HOWEVER, COGNITIVE FUNCTION IS DIMINISHED.
11 ABDOMEN NONTENDER AT THIS TIME. AND THEN HE GOES ON TO
12 STATE VARIOUS OPTIONS DISCUSSED WITH THE FAMILY. AT THIS
13 TIME, COMFORT CARE MEASURES TO BE EMPLOYED.
14 DO YOU RECALL A CONVERSATION LIKE THAT WITH DR. WILDING
15 CONCERNING COMFORT CARE MEASURES?
16 A. UH-HUH.
17 Q. GUESS I DON'T HAVE THAT ALL THE WAY ON THERE. THERE WE
18 GO.
19 DO YOU REMEMBER SUCH A CONVERSATION?
20 A. I'M SURE I HAD THAT CONVERSATION LIKE THAT IN JULY.
21 Q. AND WHY ARE YOU SURE THAT YOU HAD THAT IN JULY?
22 A. WELL, IT'S DATED JULY. I DON'T HAVE A RECOLLECTION OF
23 THE TIME FRAME.
24 Q. OKAY. BUT DO YOU REMEMBER SUCH A CONVERSATION WITH
25 DR. WILDING?
809
1 A. BEING -- I SUPPOSE I DID. WE WERE -- HAD SEEN A LOT OF
2 DOCTORS AND I SUPPOSE HE WAS THE ONE THAT I DID TALK WITH
3 ABOUT THE CARE THAT WE WOULD LIKE TO HAVE OCCUR. FURTHER
4 CARE.
5 Q. DID YOU KNOW, DID YOU EVER TALK WITH DR. WILDER OR
6 REMEMBER TALKING TO HIM ABOUT COMFORT CARE MEASURES?
7 A. WELL, IT SAYS SO.
8 THE COURT: MISS POHLMAN, IF YOU DON'T HAVE A
9 MEMORY --
10 THE WITNESS: I DON'T.
11 THE COURT: -- JUST TELL US YOU DON'T HAVE A --
12 THE WITNESS: IT'S VAGUE.
13 THE COURT: -- MEMORY. JUST BECAUSE THE MEDICAL
14 RECORD SAYS THAT, IF YOU DON'T HAVE A MEMORY --
15 THE WITNESS: RIGHT, I -- I DON'T REALLY. BUT I
16 KNOW THAT IS MY OPINION, AND SO IF I WAS IN THE CONVERSATION
17 WITH SOMEONE THAT'S WHAT I WOULD EXPRESS.
18 Q. (BY MR. STIRBA) NOW, IT'S TRUE, IS IT NOT, THAT YOU
19 UNDERSTAND THAT DIANE HAD A CONVERSATION WITH SOMEBODY FROM
20 THE HOSPITAL TOWARDS THE END OF DECEMBER, PRIOR TO THE
21 ADMISSION, IS THAT RIGHT?
22 A. CORRECT, CORRECT.
23 Q. AND THAT CONVERSATION WAS WITH SOMEBODY --
24 MR. MAJOR: YOUR HONOR --
25 MR. STIRBA: -- WHO APPARENTLY --
810
1 MR. MAJOR: -- WE'RE GONNA OBJECT THIS POINT IN
2 TIME IF HE'S GETTING INTO THE CONVERSATION WITH DIANE, DIANE
3 IS PRESENT. APPARENTLY WE'RE GETTING INTO HEARSAY
4 STATEMENTS AS TO WHAT WAS SAID WITH DIANE --
5 THE COURT: OKAY. WHERE IS THIS GOING?
6 MR. STIRBA: WELL, SHE TESTIFIED ON DIRECT ABOUT
7 THIS VERY SUBJECT MATTER AND I'M JUST INQUIRING FURTHER
8 ABOUT IT, THE CONVERSATION, HER UNDERSTANDING, WAS ALL
9 BROUGHT OUT ON DIRECT TESTIMONY.
10 THE COURT: OKAY. ASK THE QUESTION AGAIN.
11 Q. (BY MR. STIRBA) YES, YOU UNDERSTAND THAT DIANE TALKED
12 WITH SOMEBODY FROM THE DAVIS HOSPITAL?
13 A. THAT'S CORRECT.
14 Q. AND DID YOU UNDERSTAND AT THE TIME THAT YOU WENT WITH
15 YOUR MOM TO THE DAVIS HOSPITAL, THAT DIANE WAS INTERESTED IN
16 SEEING WHETHER THE HOSPITAL COULD PROVIDE MORPHINE FOR YOUR
17 MOM?
18 A. THAT'S CORRECT.
19 Q. AND THE PURPOSE OF THAT, IF I UNDERSTAND IT, WAS THAT
20 YOU BOTH THOUGHT THAT SINCE NONE OF THE OTHER MEDICATIONS
21 WERE WORKING, THAT PERHAPS MORPHINE WOULD HAVE A CALMING
22 INFLUENCE ON YOUR MOM?
23 A. IT WAS MY UNDERSTANDING TO MYSELF THAT I DIDN'T KNOW
24 THE -- ANYTHING ABOUT MORPHINE OTHER THAN MY SISTER HAD SAID
25 THAT HOSPITALS WERE ABLE TO ADMINISTER IT AND IT WOULD BE
811
1 MORE OF A -- GIVE A CALMING EFFECT, SHE THOUGHT, THAT -- AND
2 IT SEEMED THAT IF WE COULD GET HER CALM, THAT MAYBE OTHER
3 MEDICATIONS COULD BE BROUGHT IN THAT WOULD KEEP HER IN A
4 SITUATION WHERE SHE WOULD NOT BE IN THIS TERROR AND --
5 TERROR AND FEAR AND FOR AS LONG AS SHE WAS LIVING, THAT HER
6 MENTAL CONDITION COULD BE MORE WITHOUT THE EXTREME PAIN.
7 AND SO THAT WAS -- I WAS WILLING TO THAT HAVE OPTION TRIED
8 BECAUSE AS I SAID, FOR SIX MONTHS WE HAD BEEN TRYING
9 EVERYTHING WE COULD TO ALLEVIATE HER EXTREME MENTAL PAIN.
10 Q. BEFORE SHE WAS ADMITTED TO THE HOSPITAL, A FEW WEEKS
11 BEFORE, A MONTH BEFORE, DID EITHER DR. WILDING OR ANY OTHER
12 PHYSICIAN TELL YOU THAT SHE HAD PNEUMONIA?
13 A. THIS WAS BEFORE THE HIP SURGERY?
14 Q. NO, NO, BEFORE GOING INTO THE DAVIS HOSPITAL --
15 A. OH, THE DAVIS HOSPITAL.
16 Q. -- IN NOVEMBER OR DECEMBER, DID ANY DOCTOR SAY, YOU
17 KNOW, WE DID A CHEST X-RAY. IT LOOKS LIKE YOUR MOM HAS
18 PNEUMONIA.
19 A. I DON'T RECALL THAT. SHE HAD ON OCCASION COLD AND --
20 AND STUFFED NOSE AND THINGS LIKE THAT. AND IF THE DOCTOR
21 FELT THAT IT HAD DEVELOPED INTO PNEUMONIA, I DON'T RECALL.
22 Q. OKAY. DID ANY DOCTOR EVER TELL YOU, HEY, WE DID A CHEST
23 X-RAY, AND THERE'S A COMPLICATION. MAYBE IT'S NOT
24 PNEUMONIA, BUT THERE'S A PROBLEM IN HER LUNGS --
25 A. I DON'T REMEMBER --
812
1 Q. -- THAT YOU NEED TO LOOK AT?
2 A. -- AN X-RAY OR TAKING HER OUT -- WAIT. IT WAS JUST --
3 IT MAY SEEM STRANGE THAT I CAN'T RECALL SPECIFICALLY, BUT IT
4 WAS JUST LIVING THROUGH ONE DAY AND THEN FORGETTING IT AND
5 GOING TO THE NEXT DAY --
6 Q. IT WOULDN'T SEEM STRANGE AT ALL.
7 A. -- AND SO --
8 Q. SURE.
9 A. -- I DON'T RECALL.
10 Q. I'M SURE YOU WERE FOCUSING ON THE MENTAL TERROR --
11 A. UH-HUH.
12 Q. -- IS THAT RIGHT?
13 A. YES, THAT'S WHAT WE WERE.
14 Q. MISS POHLMAN, I'M GONNA PUT BEFORE YOU STATE'S EXHIBIT
15 6, WHICH IS A BINDER OF THE MEDICAL RECORDS FROM THE
16 HOSPITAL. WE'RE GONNA BE REFERRING TO THIS, AND LET ME SEE
17 IF I CAN FIND THIS FOR YOU AND MAKE IT EASY.
18 AND THERE'S THE SECTION I'M REFERRING TO.
19 A. THIS IS WHICH HOSPITAL?
20 Q. THIS IS --
21 A. DAVIS HOSPITAL?
22 Q. THIS IS THE DAVIS HOSPITAL RECORD. AND WHAT YOU HAVE IN
23 FRONT OF YOU IS A -- IT SAYS AT THE TOP, A NURSING ADMISSION
24 ASSESSMENT. AND YOU SEE THERE THAT THERE'S THE NAME OF YOUR
25 MOM, AND THEN IT HAS SIGNIFICANT OTHER, YOU SEE BARBARA
813
1 POHLMAN.
2 A. I DO, UH-HUH.
3 Q. AND YOU MAY NOT RECOGNIZE THIS DOCUMENT, BUT YOU DID
4 TESTIFY THAT THERE WAS A BUNCH OF INFORMATION THAT WAS BEING
5 PROVIDED AT THE TIME.
6 A. UH-HUH.
7 Q. AND THIS ASSESSMENT FORM APPEARS TO HAVE A NUMBER OF
8 ENTRIES RELATING TO INFORMATION THAT WERE PROVIDED ON
9 ADMISSION. IF YOU'LL TURN TO THE SECOND PAGE, WHICH IS JUST
10 PAGE 2, ARE YOU WITH ME? IT'S DOWN AT THE BOTTOM.
11 A. I AM.
12 Q. AND YOU WERE -- YOU WERE WITH YOUR MOM, IS THAT RIGHT,
13 ON THE ADMISSION?
14 A. YES, THAT'S RIGHT.
15 Q. NOW, THERE ARE A NUMBER OF MEDICATIONS IT SAYS CURRENTLY
16 IN USE IN THAT LITTLE BOX THERE TO THE LEFT. DO YOU SEE
17 THAT?
18 A. I DO.
19 Q. AND ONE OF THE MEDICATION'S IDENTIFIED AS -- LOOKS LIKE
20 AMITRIPTYLINE, THE FIRST ONE.
21 A. UH-HUH.
22 Q. AND I THINK YOU TESTIFIED ON DIRECT ABOUT THAT, IS THAT
23 RIGHT? I THOUGHT YOU MENTIONED THAT MEDICATION.
24 A. I DIDN'T SAY THAT WORD.
25 Q. OKAY. I MUST HAVE MISHEARD. DO YOU KNOW WHAT THE
814
1 AMITRIPTYLINE WAS FOR?
2 A. AS I RECALL, IT WAS FOR HER MENTAL CONDITION.
3 Q. OKAY. SOME KIND OF PSYCH MEDICATION?
4 A. TO TRY AND ALLEVIATE THE DEPRESSION. IF THAT'S THE WAY
5 YOU REFER TO IT, PSYCH.
6 Q. AND THEN WE HAVE -- THERE'S ANOTHER ONE, LASIX. DO YOU
7 SEE THAT? THAT'S THE NEXT ONE.
8 A. UH-HUH.
9 Q. DO YOU KNOW WHAT LASIX WAS GIVEN FOR?
10 A. NOT ANYMORE, I DON'T.
11 Q. PARDON ME?
12 A. I DON'T RECALL NOW.
13 Q. AND THEN IT HAS NITROSTAT?
14 A. UH-HUH, I SEE THAT.
15 Q. DO YOU SEE THAT?
16 A. FOR CHEST PAIN.
17 Q. THEN IT SAYS P.R.N. CHEST PAIN. DO YOU REMEMBER HER
18 RECEIVING NITROSTAT?
19 A. NO.
20 Q. AND THEN IT HAS AMBIEN, AND IT LOOKS LIKES P.R.N. SLEEP.
21 THAT WOULD BE THE SLEEP MEDICATION?
22 A. OKAY.
23 Q. AND THEN THERE'S LORTAB, AND IT SAYS ONE TAB, THEN IT'S
24 GOT THAT MEDICAL WAY THEY PUT IT, Q-4 TO 6, P.R.N. PAIN.
25 DO YOU REMEMBER HER RECEIVING LORTAB?
815
1 A. YEAH, THAT DOES SOUND A FAMILIAR NAME. THE PAIN PILL
2 WOULD BE JUST FOR COMFORT OF THE OSTEOPOROSIS THAT I WOULD
3 HAVE KNOWLEDGE ABOUT. WAS NOT -- SHE WAS NOT COMPLAINING OF
4 PAIN PER SE, OTHER THAN JUST THIS CONSTANT DESCRIPTION OF
5 ANXIETY THAT SHE --
6 Q. THE OSTEOPOROSIS, THOUGH, DID AT TIMES CAUSE --
7 A. WELL --
8 Q. -- BONE FRACTURES, DIDN'T IT?
9 A. YEAH, RIGHT.
10 Q. FOR EXAMPLE, THE HIP FRACTURE, DIDN'T THAT RELATE TO THE
11 OSTEOPOROSIS?
12 A. THAT'S CORRECT.
13 Q. AND DIDN'T SHE HAVE SOME SPINAL FRACTURES AS WELL?
14 A. UH-HUH.
15 Q. AND SO AT TIMES, THOSE FRACTURES WOULD HAVE BEEN
16 PAINFUL, IS THAT TRUE? Not according to Sumko, but...
17 A. RIGHT. I WOULDN'T -- I, YOU KNOW, PAIN IS -- ARTHRITIS
18 PAIN, YOU WOULD -- YOU JUST LIVE THROUGH THOSE WITH THAT AND
19 TAKE THINGS PERIODICALLY TO ALLEVIATE THE -- THE SEVERITY,
20 BUT EXCRUCIATING PAIN, SHE NEVER -- SHE DIDN'T COMPLAIN THAT
21 WAY TO ME.
22 Q. THERE'S AN ENTRY ALSO ON THIS PAGE THAT I WANNA ASK YOU
23 ABOUT. AND I REALIZE THIS IS WHAT SOMEONE PUT DOWN, BUT I'M
24 JUST WONDERING IF THIS REFRESHES YOUR RECOLLECTION --
25 MR. MAJOR: YOUR HONOR, I THINK THAT WOULD BE A --
816
1 ONE OF THE QUESTIONS WE'D HAVE ON THIS AS FAR AS FOUNDATION
2 IS CONCERNED. WE WOULD LIKE A FOUNDATION AS TO IS THIS
3 SOMETHING THAT SHE WAS TELLING THE NURSES OR IS THIS
4 SOMETHING THE NURSES OBTAINED FROM SOME OTHER SOURCE. IT'S
5 DIFFICULT TO KNOW HERE WHETHER WE'RE TALKING ABOUT THIS IS
6 FROM HER OWN PERSONAL KNOWLEDGE THAT SHE GAVE THIS ON THE
7 RECORD OR WHETHER IT CAME FROM SOME OTHER SOURCE. AND IF
8 THAT'S THE CASE, IT CAME FROM SOME OTHER SOURCE, I THINK WE
9 JUST NEED TO ASK HER IF SHE HAS ANY RECOLLECTION OF THIS.
10 THE COURT: I THINK THE DOCUMENT'S BEING USED TO
11 REFRESH HER RECOLLECTION OF SUBJECT MATTERS THAT WERE
12 DISCUSSED, IS THAT CORRECT?
13 MR. STIRBA: THAT'S CORRECT. AND I'M JUST GONNA
14 ASK HER IF SHE REMEMBERS, YOUR HONOR. IF SHE DOES, FINE.
15 IF SHE DOESN'T, FINE.
16 THE COURT: GO AHEAD.
17 Q. (BY MR. STIRBA) THE ENTRY THAT I WANNA ASK YOU ABOUT,
18 MISS POHLMAN, IS UNDER IMMUNIZATIONS, THAT'S SORT OF TOWARDS
19 THE TOP THERE, AND IT HAS HEPATITIS B. AND THEN A BLANK.
20 PNEUMONIA, BLANK. FLU, BLANK. AND THEN TETANUS, BLANK.
21 AND THEN IT SAYS, REQUESTS NOT TO BE DONE.
22 A. UH-HUH.
23 Q. DO YOU HAVE ANY RECOLLECTION OF MAKING SOME KIND OF --
24 DID YOU PROVIDE SOME DIRECTION TO THE HOSPITAL AT THE TIME
25 OF THE ADMISSION CONCERNING ANY OF THOSE MATTERS?
817
1 A. I'M SURE I WOULD HAVE SAID THAT THIS WOULD BE SOMETHING
2 TO EXTEND HER DISCOMFORT, I WOULD NOT WANT THAT TO BE IN THE
3 STATE SHE WAS IN. In other words, prolong her dying.
4 Q. AND WHAT IS IT THAT YOU WOULD NOT WANT TO BE DONE?
5 A. THE MENTAL STATE, I WOULD NOT -- WELL, IT'S LIKE THAT
6 FORM I FILLED OUT BEFORE, EXTRAORDINARY MEASURES TAKEN, THAT
7 WOULD BE PART OF IT.
8 Q. FOR EXAMPLE, ONE OF THE REFERENCES THERE IS PNEUMONIA.
9 A. UH-HUH.
10 Q. AND IF SHE DEVELOPED PNEUMONIA WHILE IN THE HOSPITAL,
11 WOULD YOU WANT THAT TO HAVE BEEN TREATED AT THE TIME?
12 A. YES, I GUESS I WOULD HAVE TO DISCUSS IT WITH A DOCTOR
13 AND KNOW WHAT HE FELT SHOULD HAPPEN. BUT I WAS -- I FELT
14 THAT THE CONDITION HER MIND WAS IN WAS SO PAINFUL TO HER
15 THAT I WOULD NOT -- IF IT WAS GOING TO PHYSICALLY MAKE HER
16 BETTER BUT NOT MENTALLY MAKE HER BETTER, THAT WOULD NOT HAVE
17 BEEN GOOD FOR HER.
18 Q. SO IF THEY COULD TREAT THE PNEUMONIA, AND IT WOULD ONLY
19 RESOLVE THINGS PHYSICALLY BUT WOULD NOT CHANGE HER MENTAL
20 SITUATION, WAS IT YOUR POSITION AT THE TIME THAT THEY SHOULD
21 NOT TREAT THE PNEUMONIA?
22 A. IT WAS MY UNDERSTANDING BY OUR GOING TO THE DAVIS
23 HOSPITAL THAT HER MENTAL CONDITION WOULD BE IMPROVED. THAT
24 THEY ASSURED US IN THAT INTERVIEW THAT SHE WOULD BE ABLE TO
25 RECEIVE HELP THAT WOULD GIVE HER SOME RELIEF FROM THIS
818
1 EXTREME ANXIETY AND PAIN THAT SHE HAD. IF THAT HAD OCCURRED
2 AND THE PNEUMONIA HAD DEVELOPED, THEN I THINK THAT WOULD
3 HAVE BEEN ANOTHER SITUATION TO LOOK AT. BUT THE EXTREME
4 PAIN THAT SHE WAS SUFFERING AT THAT TIME AND HAD BEEN FOR
5 SIX MONTHS, AS I SAID, I FELT THAT WAS THE MORE SEVERE THING
6 TO LIVE THROUGH. THE PAIN, MENTAL PAIN.
7 THE COURT: MR. STIRBA, HOW MUCH LONGER ARE YOU
8 GOING TO BE?
9 MR. STIRBA: I DO HAVE A FEW MORE QUESTIONS ON THIS
10 FORM, YOUR HONOR.
11 THE COURT: OKAY. THEN WHY DON'T WE TAKE -- LADIES
12 AND GENTLEMEN, LET'S TAKE A BREAK FOR THE MORNING.
13 (AFTER ADMONISHING THE JURY, THE COURT TOOK A
14 BRIEF RECESS.)
15 MR. STIRBA: CAN THE WITNESS GO BACK TO THE STAND,
16 YOUR HONOR?
17 THE COURT: YES, IF YOU WOULD PLEASE, MISS POHLMAN.
18 (THE JURY RETURNS TO THE COURTROOM.)
19 THE COURT: ALL RIGHT. PLEASE BE SEATED. THE
20 RECORD SHOULD REFLECT THAT THE ATTORNEYS FOR THE PARTIES ARE
21 PRESENT, THE DEFENDANT IS PRESENT, AND THE JURY IS ALL BACK.
22 AND THE WITNESS IS ON THE STAND. MR. STIRBA, YOU ARE
23 EXAMINING THIS WITNESS.
24 MR. STIRBA: YES, THANK YOU, YOUR HONOR.
25 Q. IS THAT BINDER STILL UP THERE IN FRONT OF YOU?
819
1 A. NO, IT'S NOT.
2 MS. BARLOW: HERE IT IS.
3 Q. (BY MR. STIRBA) HAVE I FLIPPED, MISS POHLMAN, TO WHAT
4 APPEARS TO BE PAGE 3 AT THE BOTTOM OF THAT FORM? DO YOU
5 HAVE THAT IN FRONT OF YOU?
6 A. YES.
7 Q. NOW, ON PAGE 3, THERE'S SOME REFERENCES -- AND I JUST
8 WANNA ASK YOU IF THIS IS CORRECT -- TO SOME FRACTURES AND
9 THERE'S A REFERENCE AT THE TOP YOU'LL -- YOU ALREADY TALKED
10 OBVIOUSLY ABOUT THE HIP FRACTURE. BUT THEN IF YOU GO DOWN
11 THERE'S A REFERENCE TO A WRIST FRACTURE F.X. DO YOU SEE
12 THAT?
13 A. ON PAGE 4, ARE YOU?
14 Q. ON PAGE 3, MA'AM.
15 IF I MAY ASSIST, YOUR HONOR?
16 A. IT'S ON DIET ON PAGE 3 HERE.
17 THE COURT: YES.
18 Q. (BY MR. STIRBA) MAYBE I GAVE YOU THE WRONG PAGE.
19 YEAH, RIGHT. THIS IS WHERE I'M READING RIGHT HERE.
20 A. OH, I SEE.
21 Q. THIS IS THE PAGE.
22 A. RIGHT, I SAW THAT.
23 Q. THERE'S A REFERENCE TO A WRIST FRACTURE F.X. AND SEE UP
24 AT THE --
25 A. I DO.
820
1 Q. -- TOP CORNER THERE'S A LIST OF CERTAIN THINGS. DO YOU
2 REMEMBER YOUR MOM HAVING A WRIST FRACTURE?
3 A. YES, I DO.
4 Q. THEN ALSO THERE'S ANOTHER FRACTURE, LOOKS LIKE AN ANKLE
5 F.X. FRACTURE. DO YOU SEE THAT?
6 A. THAT'S RIGHT, UH-HUH.
7 Q. DO YOU RECALL YOUR MOM HAVING THAT FRACTURE AS WELL?
8 A. I DO.
9 Q. AND THEN ALSO, IN THE MIDDLE OF THAT, THAT FORM, IT SAYS
10 RECENT WEIGHT CHANGES.
11 A. YES.
12 Q. AND THERE'S A CHECK UNDER LOSS AND THEN WE HAVE
13 20 POUNDS SINCE JUNE.
14 A. YES.
15 Q. IS THAT ABOUT RIGHT? YOU TESTIFIED ABOUT THE WEIGHT
16 LOSS. DOES THAT --
17 A. THAT'S RIGHT.
18 Q. -- SOUND ABOUT RIGHT?
19 A. RIGHT. SHE WAS NOT EATING.
20 Q. AND THEN I WANNA ASK YOU ABOUT ONE OTHER ENTRY FROM
21 DR. WILDING'S RECORDS. PUT THAT UP. AND LET ME PUT THIS IN
22 PLACE. I WANNA DIRECT YOUR ATTENTION TO THE 11/15/95 ENTRY.
23 IT'S TOWARDS THE BOTTOM ABOVE THE 11/18 ONE. AND YOU'LL
24 NOTICE HE -- AFTER HE HAS THE DATE, HE INDICATES CERTAIN
25 THINGS HE OBSERVED. AND THEN HE'S GOT AN A. AND THEN HE'S
821
1 GOT A DASH AND STARTS, PATIENT WITH DEPENDENT.
2 DO YOU SEE WHERE I'M READING?
3 A. YES, I DO.
4 Q. AND IT SAYS, DEPENDENT, EDEMA SLASH MILD CONGESTIVE
5 HEART FAILURE SLASH COUGH.
6 I JUST WANT TO KNOW, DO YOU REMEMBER IF AT ANY TIME
7 DR. WILDING SAID ANYTHING TO YOU ABOUT CONGESTIVE HEART
8 FAILURE OR ANY KIND OF HEART PROBLEM RELATING TO YOUR
9 MOM?
10 A. NO, NOT TO MY RECOLLECTION, HE DID NOT. BUT MOST OF THE
11 TIME WHEN HE WOULD -- EXAMINED HER, HE CAME IN WHENEVER IT
12 WAS CONVENIENT FOR HIM AND I DON'T RECALL BEING THERE WHEN
13 HE CAME IN TO TALK PERSONALLY.
14 Q. SO HE MIGHT SEE YOUR MOM AND NOT --
15 A. AND MAKE THE --
16 Q. -- NOT EVEN COMMUNICATE WITH YOU?
17 A. WELL, I DON'T RECALL IT. MAYBE HE DID WITH MY SISTER
18 AND SHE AND I DISCUSSED IT AFTERWARD, BUT I DON'T RECALL
19 THAT STATEMENT TO ME.
20 Q. OKAY.
21 A. THAT CONGESTIVE HEART FAILURE.
22 MR. STIRBA: THANK YOU VERY MUCH.
23 THAT'S ALL THE QUESTIONS I HAVE, YOUR HONOR.
24 THE COURT: OKAY. ANY REDIRECT, MR. MAJOR?
25 MR. MAJOR: WE DO HAVE SOME.
822
1 REDIRECT EXAMINATION
2 BY MR. MAJOR:
3 Q. MISS POHLMAN, SO THE BEST OF YOUR RECOLLECTION, DO YOU
4 EVER -- WERE YOU EVER PRESENT WHEN DR. WILDING DID AN
5 EXAMINATION OF YOUR MOTHER?
6 A. NO. I WAS -- I DON'T RECALL THAT I WAS.
7 Q. YOU DON'T KNOW WHAT RESULTS OF THAT EXAMINATION WOULD
8 HAVE BEEN, HOW LONG HE SPENT, WHAT TYPE THINGS HE DID?
9 A. NO, I DON'T.
10 Q. NOW, YOU ALSO INDICATED THERE WAS SOME INFORMATION ON
11 THE MEDICAL RECORDS ABOUT A RADIOLOGIST LOOKING AT A LUNG
12 TUMOR. WERE YOU EVER TOLD THAT THERE WAS A POSSIBILITY OF A
13 LUNG TUMOR?
14 A. NO.
15 Q. WAS YOUR MOTHER EVER TREATED FOR THAT?
16 A. NO.
17 Q. DID YOU EVER RECEIVE ANYTHING FROM A RADIOLOGIST OR ANY
18 FOLLOW-UP THAT THERE WOULD BE A PROBLEM WITH THAT?
19 A. NO.
20 Q. YOU ALSO TESTIFIED BOTH I GUESS ON CROSS AND ON DIRECT A
21 LITTLE ABOUT THAT YOU WERE LOOKING FOR A POSSIBILITY OF
22 USING MORPHINE TO HELP YOUR MOTHER'S CONDITION, IS THAT
23 CORRECT?
24 A. WELL, MY SISTER HAD SUGGESTED IT AND I --
25 Q. YOU WENT ALONG --
823
1 A. -- WENT ALONG WITH HER, UH-HUH, UH-HUH.
2 Q. DID YOU EVER SPEAK TO ANYONE CONCERNING THE EFFECTS OF
3 MORPHINE?
4 A. NO. AS FAR AS I KNEW, IT WAS JUST SOMETHING THAT WOULD
5 RELAX SOMEONE.
6 Q. DO YOU HAVE ANY OTHER UNDERSTANDING OF WHAT MORPHINE
7 DOES?
8 MR. STIRBA: I'M GONNA OBJECT, YOUR HONOR, AS TO
9 TIME PERIOD, AS OF THE TIME --
10 THE COURT: ARE YOU ASKING AT THE TIME --
11 MR. MAJOR: THE TIME FRAME, YEAH --
12 Q. THE TIME PRIOR TO THE TIME YOUR MOTHER WENT INTO THE
13 GEROPSYCH UNIT, DID YOU HAVE ANY OTHER KNOWLEDGE OF WHAT
14 MORPHINE WAS OR WHAT IT WAS USED FOR?
15 A. NO, I DID NOT. I KNEW CANCER PATIENTS RECEIVED IT IN
16 THE LATER STAGES.
17 Q. DID YOU EVER DISCUSS WITH ANYONE THE SIDE EFFECTS OF
18 MORPHINE?
19 A. NO.
20 Q. YOU EVER DISCUSS WITH ANYONE THE RISKS OF MORPHINE?
21 A. NO.
22 Q. AND WHEN YOU TOOK HER TO THE HOSPITAL, I GUESS THERE WAS
23 SOME CONVERSATION ABOUT POSSIBILITY OF USING MORPHINE?
24 A. NO, THERE WAS NOT ANY CONVERSATION THAT NIGHT --
25 Q. THAT NIGHT.
824
1 A. -- ABOUT USING IT. WE -- I HAD DISCUSSED IT WITH THE
2 MAN AT THE CARE CENTER, IT WAS THE ONLY TIME.
3 Q. NOW, DID YOU HAVE -- YOU INDICATED ALSO THAT YOUR MOTHER
4 HAD SUFFERED A WRIST FRACTURE. HOW LONG AGO WAS THAT?
5 A. IT WAS A NUMBER OF YEARS AGO. IT'S WHEN SHE WAS LIVING
6 ON -- LIVING BY HERSELF. I WOULD SAY SHE WAS IN HER SIXTIES
7 OR SEVENTIES.
8 Q. AND HOW ABOUT THE ANKLE FRACTURE?
9 A. SAME, IT WAS A NUMBER OF YEARS BEFORE.
10 Q. AND HAD SHE EVER HAD ANY PROBLEMS WITH EITHER ONE OF
11 THOSE?
12 A. NO.
13 Q. SHE EVER TAKE ANY MEDICATION FOR 'EM?
14 A. NO.
15 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS, YOUR
16 HONOR.
17 THE COURT: ANYTHING FURTHER OF THIS WITNESS?
18 MR. STIRBA: I HAVE NONE, YOUR HONOR. THANK YOU.
19 THE COURT: MAY THIS WITNESS BE EXCUSED?
20 MR. MAJOR: SHE MAY, YOUR HONOR.
21 THE COURT: OKAY. THANK YOU.
22 MR. STIRBA: YES.
23 MR. MAJOR: WE CALL DIANE TO STAND.
24 THE COURT: MARIAH.
25 MR. MAJOR: MARIAH. I APOLOGIZE. I'VE GOT SO MANY
825
1 NAMES GOING THROUGH MY MIND.
2 DIANE MARIAH,
3 CALLED AS A WITNESS, BEING FIRST DULY SWORN,
4 WAS EXAMINED AND TESTIFIED AS FOLLOWS:
5 DIRECT EXAMINATION
6 BY MR. MAJOR:
7 Q. WILL YOU STATE YOUR NAME FOR THE RECORD?
8 A. DIANE ANDERSON MARIAH.
9 Q. SPELL YOUR LAST NAME FOR THE RECORD.
10 A. M-A-R-I-A-H.
11 Q. AND WHAT IS YOUR RELATIONSHIP TO BARBARA POHLMAN?
12 A. I'M HER SISTER.
13 Q. AND WHAT IS YOUR RELATIONSHIP TO ELLEN ANDERSON?
14 A. HER DAUGHTER.
15 Q. AND, MISS POHLMAN, WHERE ARE YOU CURRENTLY LIVING?
16 A. CALIFORNIA. MARIAH.
17 Q. PARDON? OH, MARIAH. I'M SORRY.
18 A. YEAH. VADAGA BAY, CALIFORNIA.
19 Q. HOW LONG HAVE YOU BEEN LIVING THERE?
20 A. I'VE BEEN IN CALIFORNIA ABOUT 20 YEARS.
21 Q. AND WHAT DO YOU DO IN CALIFORNIA?
22 A. I'M A RETIRED SCHOOL TEACHER.
23 Q. GOING BACK TO THE PERIOD OF TIME PRIOR TO ABOUT JUNE OF
24 1995, CAN YOU TELL THE JURY -- YOU'RE LIVING IN CALIFORNIA.
25 WHERE WAS YOUR SISTER LIVING?
826
1 A. BRIGHAM CITY.
2 Q. AND WHERE WAS YOUR MOTHER LIVING?
3 A. MY MOTHER HAD MOVED IN WITH HER.
4 Q. OKAY. AND DURING LET'S SAY THE TIME FROM TIME THEY
5 WERE -- YOUR MOTHER MOVED IN WITH YOUR SISTER UNTIL ABOUT
6 JUNE OF 1995, HOW OFTEN WOULD YOU VISIT?
7 A. I USUALLY CAME HERE ONCE A YEAR, AND MY MOTHER CAME BACK
8 TO SEE ME A COUPLE OF TIMES A YEAR.
9 Q. OKAY. HOW LONG WOULD SHE STAY WHEN SHE WENT BACK WITH
10 YOU?
11 A. OH, FROM TWO WEEKS, I THINK THE LONGEST WAS A MONTH.
12 Q. AND HOW LONG WOULD YOU STAY WHEN YOU CAME UP?
13 A. ABOUT TWO WEEKS.
14 Q. WHEN SHE WOULD COME DOWN TO STAY WITH YOU, HOW WOULD SHE
15 GET DOWN THERE?
16 A. WE WOULD -- WE WOULD FLY HER. SHE WOULD BE ACCOMPANIED
17 EITHER BY MYSELF OR MY SISTER.
18 Q. AND DIDN'T APPEAR TO BE ANY TROUBLE GETTING HER DOWN
19 THERE, TO FLY HER DOWN?
20 A. NO, THERE'S NO TROUBLE. SHE WAS NERVOUS, AND THAT'S WHY
21 WE ACCOMPANIED HER.
22 Q. AND BASED ON ALL THESE VISITS, CAN YOU JUST BRIEFLY TELL
23 THE JURY WHAT HER GENERAL PHYSICAL HEALTH WAS?
24 A. SHE WAS IN GOOD PHYSICAL HEALTH. SHE WAS BECOMING
25 SOMEWHAT FRAIL BECAUSE OF HER AGE, BUT SHE WAS AMBULATORY
827
1 AND --
2 Q. WHAT WAS HER MENTAL CONDITION?
3 A. DURING THAT TIME SHE WAS BECOMING MORE FORGETFUL,
4 SHORT-TERM MEMORY PROBLEMS, BUT SHE WAS CERTAINLY CAPABLE OF
5 HAVING A FULL CONVERSATION AND COULD RESPOND TOTALLY
6 APPROPRIATELY TO TALKING TO HER.
7 Q. NOW, IN JUNE OF 1995, APPARENTLY THERE WAS AN INJURY
8 THAT SHE HAD DONE TO HER HIP. ARE YOU AWARE OF THAT?
9 A. YES.
10 Q. WHAT -- HOW DID YOU FIND OUT ABOUT THAT?
11 A. THROUGH MY SISTER.
12 Q. AND WHAT IF ANYTHING DID YOU DO?
13 A. WELL, SHE WAS TAKEN INTO THE HOSPITAL BY MY SISTER. AND
14 AFTER SHE CAME BACK AND SHE WAS EXPERIENCING EMOTIONAL
15 DIFFICULTY, I FLEW OUT TO SEE HER.
16 Q. AND APPROXIMATELY WHEN WAS THAT?
17 A. OH, MAYBE IT WAS LIKE IN JUNE, MAY OR JUNE.
18 Q. AND YOU VISITED YOUR MOTHER?
19 A. YOU'RE TALKING ABOUT AFTER THE OPERATION?
20 Q. AFTER OPERATION, YEAH.
21 A. OKAY. MY SISTER HAD TOLD ME THAT SHE WAS LIKE HIGHLY
22 AGITATED AND WAS UNABLE TO SETTLE DOWN. I TALKED TO MY
23 MOTHER ON THE PHONE DURING THAT TIME. I COULD TELL THAT
24 THERE WAS SOME DIFFERENCE IN HER MENTAL STATE. AND I FLEW
25 OUT, THINKING MAYBE THAT I COULD BE OF SOME COMFORT TO HER
828
1 TO SETTLE HER DOWN. AND AFTER SPENDING THE FIRST COUPLE OF
2 NIGHTS THERE, I SUGGESTED TO MY SISTER THAT SHE COULD BE
3 PLACED IN A NURSING HOME BECAUSE IT WAS IMPOSSIBLE TO SLEEP
4 NIGHT.
5 Q. NOW, WHEN YOU FLEW OUT, HAD YOUR MOTHER ALREADY BEEN
6 DISCHARGED FROM THE HOSPITAL?
7 A. YES.
8 Q. AND WAS THERE A PERIOD OF TIME AFTER SHE'D BEEN
9 DISCHARGED FROM THE HOSPITAL THAT SHE WAS IN A REST HOME?
10 A. YES.
11 Q. AND THEN YOUR SISTER HAD TAKEN HER FROM THE REST HOME
12 BACK INTO HER HOME?
13 A. YES. AND THAT'S WHEN I CAME.
14 Q. OKAY. THIS IS WHAT I WANNA GET TO. THIS IS THE TIME
15 FRAME THAT YOUR -- WHEN SHE WAS LIVING WITH HER SISTER.
16 A. UH-HUH.
17 Q. AND HOW LONG DID YOU STAY?
18 A. I PROBABLY STAYED ABOUT A WEEK AND THEN FLEW HOME TO
19 MAKE ARRANGEMENTS FOR A LEAVE OF ABSENCE FROM MY WORK SO
20 THAT I COULD COME AND BE HERE.
21 Q. NOW, WHILE YOU WERE VISITING, DID YOU STAY AT YOUR
22 SISTER'S HOUSE --
23 A. YES.
24 Q. -- DURING THIS PERIOD OF TIME?
25 A. UH-HUH.
829
1 Q. AND CAN YOU DESCRIBE BASICALLY WHAT YOUR MOTHER'S
2 CONDITION WAS AT THAT TIME?
3 A. SHE WAS VERY CONFUSED AND AGITATED, AND I ESPECIALLY
4 REMEMBER THE NIGHT, I SLEPT WITH HER THAT NIGHT TO TRY TO
5 GIVE HER -- KEEP HER CALM. AND SHE WOULD WAKE UP AND SIT UP
6 IN BED AND WONDER WHAT SHE WAS SUPPOSED TO DO. AND JUST WAS
7 GENERALLY CONFUSED ABOUT WHAT WAS HAPPENING IN THE MOMENT.
8 ALTHOUGH SHE -- IF I TALKED TO HER, SHE COULD RESPOND BACK
9 TO ME AND SHE WOULD BE SETTLED DOWN. THE MINUTE THAT I
10 WASN'T DIRECTLY TALKING TO HER, SHE WAS HIGHLY AGITATED.
11 AND I TRIED TALKING TO HER AND HOLDING HER AND ROCKING HER,
12 AND NOTHING SEEMED TO WORK. THAT'S WHY I KNEW SHE HAD TO GO
13 INTO THE -- BACK INTO THE NURSING HOME.
14 Q. NOW, YOU TALKED ABOUT ROCKING HER. WHAT DID THAT --
15 WHAT DO YOU MEAN BY ROCKING HER?
16 A. PUTTING MY ARMS AROUND HER AND HOLDING HER LIKE THIS.
17 Q. OKAY. AND DURING THIS PERIOD OF TIME THAT YOU WERE
18 VISITING HER, DID SHE APPEAR TO BE IN ANY TYPE OF PHYSICAL
19 PAIN?
20 A. NO. I WAS SURPRISED AT HOW WELL SHE WAS WALKING AFTER
21 THE HIP OPERATION. AND I CAN'T REMEMBER HER COMPLAINING.
22 Q. AND GENERALLY, YOU KNOW, OTHER THAN THE FEAR AND THE
23 ANXIETY YOU DISCUSSED, WAS SHE ABLE TO COMPREHEND THINGS?
24 UNDERSTAND?
25 A. SHE COULD COMPREHEND IN THE MOMENT. AS SOON AS THE
830
1 CONVERSATION WAS OVER, THEN THERE WOULD BE NO RECOLLECTION
2 OF THE CONVERSATION. BUT SHE WAS COMPREHENDING AT THAT
3 TIME.
4 Q. NOW, WHEN YOU WERE -- WERE YOU FAMILIAR OR AWARE THAT
5 YOUR MOTHER HAD SOME OSTEOPOROSIS IN HER BACK?
6 A. OH, YES.
7 Q. AND MAY HAVE HAD SOME MINOR FRACTURES IN HER BACK?
8 A. I THINK THAT HER BACK WAS -- I THINK THEY WERE MORE THAN
9 MINOR. That's true.
10 Q. AND HOW LONG HAD SHE HAD THAT CONDITION, DO YOU KNOW?
11 A. OH, SHE -- SHE WAS DEVELOPING THAT HUNCHED OVER PROBABLY
12 15 YEARS BEFORE SHE DIED.
13 Q. AND IN THE VISITS YOU HAD TO HER AND YOUR CONTACT WITH
14 HER, DID SHE EVER APPEAR TO HAVE ANY PAIN AS A RESULT OF
15 THAT?
16 A. IT ACHED AND SHE WAS UNCOMFORTABLE, BUT IT WAS -- IT
17 DIDN'T SEEM TO BE SEVERE. SHE WAS ALSO ONE NOT TO COMPLAIN.
18 Q. WAS SHE TAKING ANY MEDICATIONS FOR IT, DO YOU KNOW?
19 A. I DON'T THINK SHE WAS TAKING ANYTHING OTHER THAN
20 OVER-THE-COUNTER ASPIRIN AND TYLENOL.
21 Q. NOW, WHEN YOU HAD HER -- AND YOU WERE INDICATING WHEN
22 YOU HAD HER, YOU WERE STAYING WITH HER IN MISS POHLMAN'S
23 HOME, YOU WOULD ROCK HER, SEEMING THAT'S MOVING BACK AND
24 FORTH.
25 A. UH-HUH.
831
1 Q. DID SHE APPEAR TO HAVE ANY PAIN ON HER BACK WHEN YOU
2 WERE DOING THAT?
3 A. NO.
4 Q. SHE WASN'T MOANING OR GROANING OR SCREAMING WHEN YOU
5 MOVED HER, ROCKED HER?
6 A. NO. THAT WAS OF COMFORT TO HER.
7 Q. APPEAR TO COMFORT HER TO DO THAT?
8 A. YEAH, I MEAN IT WASN'T LIKE --
9 Q. YEAH.
10 A. -- YOU KNOW, I --
11 Q. I UNDERSTAND THAT.
12 A. IT WAS SOFT.
13 Q. DID SHE APPEAR TO BE IN ANY PAIN OR HAVING ANY PROBLEMS
14 WHEN SHE WAS AMBULATORY, MOVING AROUND?
15 A. NO, NOT PAIN REALLY.
16 Q. AND YOU INDICATED -- APPROXIMATELY HOW LONG DID YOU STAY
17 THERE?
18 A. I WAS THERE FOR A WEEK AND THEN FLEW BACK, AND THEN I
19 WAS PROBABLY BACK IN ANOTHER TWO WEEKS.
20 Q. WHEN YOU COME BACK, WAS YOUR MOTHER STILL LIVING WITH
21 YOUR SISTER?
22 A. NO. WE'D MOVED HER INTO THE HOME.
23 Q. INTO THE REST HOME?
24 A. YES. I THINK THAT HAPPENED WHILE I WAS THERE.
25 Q. AND WHEN YOU GOT HER BACK INTO THE REST HOME, WHAT DID
832
1 YOU -- DID YOU DO ANYTHING -- WERE YOU CONCERNED ABOUT HER
2 CONDITION? DID YOU DO ANYTHING TO LOOK INTO THAT?
3 A. MY SISTER AND I WERE VERY CONCERNED ABOUT HER CONDITION.
4 AND WE SET UP A SCHEDULE SO THAT DURING AS MUCH OF THE
5 WAKING HOURS AS POSSIBLE, THAT SHE WOULD HAVE SOMEONE WITH
6 HER. SHE -- THE ONLY COMFORT THAT SHE SEEMED TO HAVE WAS
7 WHEN MY SISTER AND I WERE DIRECTLY WITH HER. AND IF WE
8 WEREN'T IN THE ROOM WITH HER, THEN SHE WAS PRETTY
9 HYSTERICAL.
10 Q. AND WHAT DID YOU DO IF ANYTHING AS FAR AS MEETING WITH
11 DOCTORS OR ANYTHING OF THAT NATURE CONCERNING HER CONDITION?
12 A. WELL, WE TALKED TO THE NURSES REPEATEDLY. I DON'T
13 REMEMBER WHAT THEY WERE, BUT I KNOW THAT A NUMBER OF
14 MEDICATIONS HAD BEEN TRIED. AND THEN THERE WAS A GERIATRIC
15 SPECIALIST WHO WE BROUGHT UP TO THE HOSPITAL, AND HE
16 EXAMINED MY MOTHER AND PRESCRIBED DRUGS. AGAIN, I DON'T
17 REMEMBER THE NAMES OF THEM. THEY SEEMED TO MAKE HER WORSE
18 INSTEAD OF BETTER, AND MY SISTER AND I DECIDED AFTER A WHILE
19 TO DISCONTINUE THOSE.
20 Q. AND THEN WHAT ELSE OCCURRED? AS FAR AS GOING DOWN THE
21 SAME TYPE OF LINES YOU'RE TALKING ABOUT HERE?
22 A. WELL, I -- I CAN REMEMBER BRINGING MY MOTHER WITH ME AND
23 APPEARING BEFORE THE NURSING STAFF. I THINK THEY WERE DOING
24 LIKE CASE REVIEW OR SOMETHING LIKE THAT. AND TRYING TO
25 EXPLAIN WHAT I THOUGHT MY MOTHER'S CONDITION WAS AND THE
833
1 MENTAL FRAME OF MIND SHE WAS IN AND TRYING TO GET
2 SUGGESTIONS ABOUT WASN'T THERE SOMETHING THAT COULD BE DONE?
3 WASN'T THERE SOMETHING STRONGER THAT COULD BE GIVEN? AND
4 THEY SAID THAT THEY HAD LIMITS AS TO WHAT THEY COULD DO IN A
5 NURSING HOME.
6 Q. DID YOU EVER HAVE ANY CONSULTATIONS OR REMEMBER ANY
7 CONSULTATIONS WITH DR. WILDING?
8 A. I BELIEVE WILDING WAS THE DOCTOR THAT WE BROUGHT IN.
9 Q. TO LOOK AT HER CONDITION?
10 A. UH-HUH.
11 Q. HOW ABOUT DR. KELLER?
12 A. I BELIEVE HE WAS THE DOCTOR THAT MY MOTHER -- WAS HER
13 GENERAL DOCTOR.
14 Q. DO YOU RECALL IN ANY OF THESE CONVERSATIONS WITH THE
15 DOCTORS AND NURSES AND STAFFING DISCUSSING PHYSICAL PAIN?
16 A. THE ONLY TIME WAS AFTER SHE HAD FALLEN DOWN AT THE
17 NURSING HOME. I WAS WALKING WITH HER AND SHE SLIPPED. AND
18 SHE COMPLAINED ABOUT HER -- HER HIP FOR MAYBE THREE DAYS.
19 DURING THAT TIME WE TOOK OVER HER -- I TOOK HER OVER TO THE
20 HOSPITAL AND THEY X-RAYED HER, AND NOTHING WAS WRONG. BUT
21 AGAIN, THE COMPLAINTS WERE NOT SEVERE.
22 Q. AND WAS SHE -- DID SHE RECEIVE ANY PAIN MEDICATION
23 DURING THAT PERIOD OF TIME, DO YOU RECALL?
24 A. I DON'T THINK ANYTHING OTHER THAN WHAT SHE WAS GETTING,
25 THE TYLENOL.
834
1 Q. AND DID THEY INDICATE TO YOU THAT THERE WAS ANY -- IN
2 THESE CONSULTS, DID THEY EVER INDICATE TO YOU THERE WAS EVER
3 ANY OTHER PROBLEMS WITH HER?
4 A. PHYSICALLY?
5 Q. YEAH, PHYSICALLY.
6 A. NO. I CAN REMEMBER THAT MY SISTER AND I HAD NUMEROUS
7 CONVERSATIONS ABOUT, YOU KNOW, HOW WAS IT EVER GONNA END,
8 BECAUSE SHE SEEMED TO BE IN GOOD HEALTH, AND WE HAD BEEN
9 TOLD THAT HER HEART WAS STRONG, AND SO ON AND --
10 Q. THEN YOU -- HOW DID YOU LEARN ABOUT THE GEROPSYCH UNIT
11 AT DAVIS HOSPITAL?
12 A. TOWARD THE END OF DECEMBER, MY MOTHER BECAME MUCH WORSE,
13 WAS A DAILY GOING DOWN OF HER BEING MORE AND MORE AGITATED
14 AND I -- I CAME TO THE NURSING HOME TO BE THERE WITH HER AT
15 MEALTIME, AND THEY HAD MOVED HER -- BECAUSE OF HER BEING
16 DISRUPTIVE, THEY HAD MOVED HER TO A BACK DINING HALL. AND I
17 WALKED IN AND SHE WAS JUST IN SUCH -- SHE WAS IN SUCH A
18 STATE, I COULDN'T STAND IT. AND EVEN THOUGH I HAD BEEN TOLD
19 BY THE OTHER DOCTORS THAT THERE WASN'T ANYTHING TO DO, I
20 ALSO KNEW THAT THAT'S BECAUSE SHE WAS THERE, AND I WANTED
21 HER INTO A HOSPITAL SO THAT THEY COULD GIVE HER SOMETHING
22 STRONGER.
23 Q. NOW, THIS WAS SOLELY FOR HER MENTAL CONDITION?
24 A. YES. AND SO I WENT BACK AND I DIDN'T KNOW WHO MY -- THE
25 DOCTORS THAT MY SISTER HAD CALLED AT THE TIME, SO I JUST
835
1 STARTED GOING THROUGH A LIST. I TALKED TO A PSYCHIATRIST
2 AND COUPLE OTHER DOCTORS, AND THE PSYCHIATRIST THAT MY
3 SISTER HAD I THINK ORIGINALLY TAKEN HER TO OR SOMETHING,
4 THEY TOLD ME -- THE RECEPTIONIST TOLD ME THAT THERE WAS THIS
5 GERIATRIC UNIT, PSYCH UNIT, AND NO ONE HAD EVER MENTIONED
6 THAT TO US BEFORE. AND SO I CALLED THEM UP AND ARRANGED FOR
7 AN INTAKE, AND HAD THEM COME UP.
8 Q. NOW, YOU WEREN'T PRESENT DURING THE INTAKE?
9 A. NO, I WASN'T. I HAD TALKED TO THEM ON THE PHONE BEFORE,
10 THOUGH.
11 Q. AND AFTER YOU DONE IT -- YOUR SISTER HAD DONE THE
12 INTAKE, IS THAT CORRECT?
13 A. YES.
14 Q. AND AFTER YOUR SISTER HAD DONE THE INTAKE, WHAT WERE THE
15 CIRCUMSTANCES OF YOUR MOTHER GETTING INTO THE GEROPSYCH
16 UNIT? DO YOU KNOW?
17 A. AS I REMEMBER, IT ALL HAPPENED VERY, VERY RAPIDLY. TO
18 MY RECOLLECTION, I CALLED IN THE MORNING. THEY CAME IN THE
19 AFTERNOON FOR THE INTAKE. AND I BELIEVE SHE WAS ADMITTED
20 THAT EVENING, IS THE WAY I REMEMBER IT.
21 Q. WERE YOU PRESENT WHEN SHE WAS ADMITTED?
22 A. NO. MY SISTER TOOK HER DOWN.
23 Q. SO YOU DIDN'T REALLY HAVE ANYTHING TO DO WITH THE
24 ADMISSION TO THE HOSPITAL.
25 A. NO.
836
1 Q. AFTER SHE WAS ADMITTED INTO THE HOSPITAL, WHAT HAPPENED?
2 A. WELL, IT WAS -- IT WAS MY DAY OFF SO I HAD BEEN DOWN IN
3 SALT LAKE. I CAME BACK. I CALLED THE HOSPITAL IN THE
4 MORNING, AND THEY TOLD ME SHE WAS DEAD.
5 Q. NOW, YOU CALLED THE HOSPITAL?
6 A. YES.
7 Q. AND WHAT HAPPENED WHEN YOU RECEIVED THIS INFORMATION?
8 A. WHAT HAPPENED?
9 Q. YEAH, WHAT DID YOU DO? WHAT WERE THE CIRCUMSTANCES?
10 A. WELL, I WAS -- I WAS VERY UPSET. I REMEMBER JUST KIND
11 OF WANDERING THROUGH THE APARTMENT, JUST SAYING HER NAME.
12 AND I WAS JUST SO UPSET THAT I -- I WASN'T UPSET THAT SHE
13 HAD DIED. I WAS SHOCKED THAT SHE HAD DIED, YOU KNOW,
14 BECAUSE SHE SEEMED ALL RIGHT, SO I WAS SHOCKED THAT SHE HAD
15 DIED. I WAS GLAD THAT SHE HAD DIED, BUT I WAS KIND OF LIKE
16 OVERCOME WITH GRIEF THAT I WASN'T WITH HER BECAUSE THAT WAS
17 WHAT -- IT WAS MY SISTER AND MY PRESENCE THAT HAD BEEN
18 SUSTAINING HER, AND TO THINK THAT WE WEREN'T THERE WAS HARD
19 FOR ME.
20 Q. AND AFTER YOU HAD GONE THROUGH THIS EMOTIONAL STATE, DID
21 YOU EVER GO TO THE HOSPITAL ITSELF?
22 A. YES.
23 Q. AND WHO WAS PRESENT WHEN YOU WENT THERE? WHO WAS WITH
24 YOU?
25 A. MY -- MY PARTNER JUDE AND SISTER AND BROTHER-IN-LAW.
837
1 Q. AND WHEN YOU GOT TO THE HOSPITAL, WHAT OCCURRED?
2 A. WELL, WE -- WE WENT INTO THE ROOM AND SAW HER. I CAN
3 REMEMBER ASKING IF I COULD BE ALONE WITH HER, AND THE REST
4 OF THE FAMILY WENT OUT OF THE ROOM, AND THEN WE WERE BACK IN
5 THE ROOM. I DON'T KNOW, HAZY ON THIS. AND THE DOCTOR CAME
6 IN AND TALKED WITH US.
7 Q. AND WHO WAS THE DOCTOR?
8 A. DR. WEITZEL.
9 Q. HAD YOU EVER MET OR CONSULTED WITH HIM BEFORE?
10 A. NO.
11 Q. THIS IS THE FIRST TIME YOU'D EVER SEEN HIM?
12 A. YES.
13 Q. AND WHO WAS PRESENT WHEN THE DOCTOR CAME IN?
14 A. MY SISTER, MY BROTHER-IN-LAW, MY PARTNER, AND MYSELF.
15 Q. AND WHAT HAPPENED WHEN THEY WERE IN THERE?
16 A. WHAT WAS THE CONVERSATION?
17 Q. YES, GENERALLY WHAT OCCURRED?
18 A. I CAN REMEMBER -- THE ONLY THING I CAN REALLY REMEMBER
19 IS THAT AS MY SISTER AND I WERE ALWAYS DOING WAS QUESTIONING
20 WHY WAS SHE THAT WAY, WHAT WAS -- WHAT WAS THE MATTER. I --
21 AND I CAN REMEMBER THE DOCTOR SAYING SOMETHING ABOUT, YOU
22 KNOW, WHEN PEOPLE BREAK THEIR -- BREAK THEIR HIPS, SOMETIMES
23 THINGS ARE RELEASED INTO THE BODY WHICH AFFECT THE MIND. Fat emboli.
24 AND --
25 Q. DO YOU RECALL ANY CONVERSATION --
838
1 A. -- SOMETHING LIKE THAT.
2 Q. -- AS TO THE CAUSE OF DEATH?
3 A. I DON'T.
4 Q. DO YOU RECALL ANY CONVERSATIONS OF ANY TESTS OR ANYTHING
5 LIKE THAT THAT WAS -- THAT WAS DONE?
6 A. AFTER?
7 Q. I MEAN DID THE DOCTOR TELL YOU WE'VE RUN THESE TESTS?
8 A. HE DID, HE TOLD US THAT THE -- AN E.K.G. WAS RUN ON HER
9 EARLY IN THE MORNING. THAT SHE SEEMED TO BE HAVING SOME
10 SORT OF MAYBE HEART PROBLEM OR SOMETHING OR I DON'T REMEMBER
11 WHETHER IT WAS THAT OR WHETHER IT WAS JUST ROUTINE, BUT THEY
12 DID -- THEY DID DO THAT TEST ON HER.
13 Q. NOW, I THINK YOU MENTIONED AND YOUR SISTER HAD ALSO
14 MENTIONED THE FACT THAT ONE OF THE THINGS YOU WERE LOOKING
15 AT WHEN YOU MOVED HER OUT OF THE REST HOME WAS THE
16 POSSIBILITY OF USING MORPHINE FOR DEPRESSION.
17 A. YES.
18 Q. COULD YOU EXPLAIN THAT A LITTLE BIT MORE, WHAT YOU KNEW
19 ABOUT IT, AND WHY YOU WERE LOOKING AT THAT?
20 A. I WAS FAMILIAR WITH MORPHINE BEING USED IN HOSPICE
21 CASES. IT HAD BEEN -- WHEN I HAD BEEN TELLING PEOPLE BACK
22 IN CALIFORNIA ABOUT THE STATE OF MY MOTHER, SEVERAL PEOPLE
23 HAD SAID, WELL, HAVE THEY TRIED MORPHINE YET? I KNEW THAT
24 EVERY SINGLE OTHER DRUG THAT WE HAD TRIED EITHER DIDN'T WORK
25 OR MADE IT WORSE, AND I -- I WANTED HER CALMED DOWN AND
839
1 QUIET ENOUGH SO THAT SHE WOULD NOT BE IN THE STATE SHE WAS
2 IN. IT WAS JUST -- IT WAS TOO MUCH FOR HER TO BE IN THAT
3 STATE. AND I BELIEVED THAT MORPHINE WOULD CALM HER DOWN --
4 Q. SO YOU --
5 A. -- OR SOMETHING.
6 Q. PARDON ME. DID YOU DO ANY INVESTIGATION AS TO MORPHINE,
7 WHAT ITS EFFECTS WERE, THOSE TYPE OF THINGS?
8 A. I KNEW THAT IT RELIEVED PAIN AND I KNEW THAT IT PRODUCED
9 A EUPHORIC EFFECT AND THAT'S WHAT I WAS HOPING, THAT IT
10 COULD DO SOMETHING TO RAISE HER INTO A DIFFERENT STATE.
11 Q. DID ANYONE EVER DISCUSS WITH YOU SIDE EFFECTS OF
12 MORPHINE?
13 MR. STIRBA: AT THIS TIME?
14 Q. (BY MR. MAJOR) AT THIS TIME OR PRIOR TO SENDING HER TO
15 THE GEROPSYCH UNIT.
16 A. NO, I DIDN'T TALK WITH ANYONE ABOUT THAT.
17 Q. DID ANYONE -- OR DID YOU LEARN ANYTHING ABOUT THE RISKS
18 OF MORPHINE?
19 A. I THINK I GENERALLY KNEW THAT IN THE SITUATIONS WHERE IT
20 HAD BEEN ADMINISTERED THAT I WAS AWARE OF THAT IT WAS AN
21 END-OF-LIFE PROCEDURE FOR PAIN AND OTHER THINGS.
22 Q. AND IS THAT WHAT YOU WERE INTENDING THE MORPHINE TO BE
23 USED FOR WITH YOUR MOTHER?
24 A. I WAS HOPING THAT THE EUPHORIA, THE EUPHORIC EFFECT OF
25 IT WOULD HAVE SOME CALMING EFFECT ON HER.
840
1 Q. BUT YOU ALSO MENTIONED THAT YOU KNEW IT WAS SORT OF AN
2 END-OF-LIFE SITUATION FOR PAIN. WAS THAT -- THAT'S WHAT I'M
3 ASKING, WAS THAT PART OF YOUR INTENT WHEN YOU -- HAVING HER
4 GIVEN THE MORPHINE?
5 A. I WANTED HER -- I WANTED HER -- HER MENTAL STATE CALMED
6 DOWN.
7 Q. DIDN'T WANT HER LIFE ENDED SHORT OR SHORTENED?
8 A. I -- I WAS NOT DOING ANYTHING OR -- I DIDN'T -- I WASN'T
9 NECESSARILY LOOKING FOR A DRUG TO END HER LIFE. BUT IF IT
10 SHORTENED HER LIFE, I WOULD -- I THOUGHT THAT WAS GOOD.
11 Q. AS LONG AS IT HELPED CURE THE PROBLEM SHE WAS HAVING.
12 A. YES.
13 MR. MAJOR: WE NO FURTHER QUESTIONS.
14 THE COURT: MR. STIRBA.
15 MR. STIRBA: I HAVE NO QUESTIONS, YOUR HONOR.
16 THANK YOU.
17 THE COURT: OKAY. MAY THIS WITNESS BE EXCUSED?
18 MR. MAJOR: SHE MAY, YOUR HONOR.
19 THE COURT: OKAY. THANK YOU. WOULD YOU LIKE TO
20 CALL YOUR NEXT WITNESS?
21 MR. MAJOR: COULD I HAVE JUST HAVE ONE MINUTE, YOUR
22 HONOR.
23 YOUR HONOR, OUR NEXT WITNESS I'M ASSUMING IS HERE IS
24 DR. CUNNINGHAM. HOWEVER, GIVEN SOME OF THE SITUATIONS WE
25 WOULD -- I HATE TO DO THIS BECAUSE I DON'T WANNA UPSET THE
841
1 COURT BUT WE DO HAVE AN ISSUE WE WOULD LIKE TO ADDRESS WITH
2 THE COURT BEFORE WE PUT DR. CUNNINGHAM ON CONCERNING HIS
3 TESTIMONY. THAT PROBABLY NEEDS TO BE DONE OUTSIDE OF THE
4 PRESENCE OF THE JURY.
5 THE COURT: OKAY. WELL, LADIES AND GENTLEMEN,
6 LET'S TAKE -- I'LL ASK YOU TO JUST GO OUT WITH THE BAILIFF
7 FOR A SHORT TIME. I DON'T THINK IT'S GONNA BE 15 MINUTES,
8 SO IF YOU WANNA GO OUTSIDE OR SOMETHING, JUST BE NEAR SO IF
9 THEY CALL YOU THAT YOU CAN COME BACK IN. DURING THIS TIME,
10 REMEMBER NOT TO CONVERSE AMONG YOURSELVES OR ALLOW ANYONE TO
11 ADDRESS YOU ABOUT THE SUBJECT OF THIS TRIAL. ALSO, DO NOT
12 FORM OR EXPRESS AN OPINION UNTIL THE CASE IS FINALLY
13 SUBMITTED TO YOU AFTER YOU'VE HEARD ALL THE EVIDENCE. AND
14 WE'LL CALL YOU BACK WHEN WE'RE READY.
15 (THE JURY LEAVES THE COURTROOM.)
16 THE COURT: OKAY. PLEASE BE SEATED. OKAY. THE
17 RECORD SHOULD REFLECT THAT THE JURY HAS LEFT THE COURTROOM.
18 MR. MAJOR: YOUR HONOR, I APPRECIATE THIS. WHAT I
19 WAS HOPING WE COULD DO IS WITH DR. CUNNINGHAM IS I'D LIKE A
20 LITTLE BIT OF CLARIFICATION OF WHERE WE'RE GOING WITH HIS
21 TESTIMONY. FOR THE LAST COUPLE OF DOCTORS WE HAVE CALLED,
22 WE'VE ATTEMPTED TO GET INTO SOME OF THEIR PERSONAL USE OF
23 MORPHINE, THEIR UNDERSTANDING OF MORPHINE. DR. CUNNINGHAM I
24 WOULD PROFFER IS AN INTERNIST WORKING AT LOGAN HOSPITAL.
25 HE'S INVOLVED WITH GERIATRICS CARE. HE'S ALSO INVOLVED WITH
842
1 HOSPICE. RUNS A -- WORKS ON THE HOSPICE UNIT THERE. IT'S
2 MY INTENTION TO GET INTO SOME OF HIS UNDERSTANDING OF WHAT
3 END-OF-LIFE CARE IS, HOSPICE CARE, USE OF MORPHINE,
4 END-OF-LIFE CARE, USE OF MORPHINE, SOMETHING -- SOME --
5 SIMILAR TO WHAT WE ATTEMPTED TO DO WITH THE OTHER DOCTORS.
6 I KNOW MR. STIRBA'S GONNA RAISE AN OBJECTION AND I KIND OF
7 KNOW WHERE THE COURT IS GOING. WE WOULD SUBMIT TO THE COURT
8 A CASE WHICH IS HEADED 1999 INTERESTINGLY FROM THE HONORABLE
9 ANN STIRBA FROM OUR APPELLATE COURT. MICHELLE PATTY,
10 BELIEVE YOU SAY THAT, VERSUS KIRK LANEHART. IN THAT CASE
11 THIS WAS A PERSONAL INJURY SUIT, YOUR HONOR, WHERE THERE WAS
12 SOME DENTAL INDICATIONS OF INJURIES AS A RESULT OF AN
13 ACCIDENT. ON PAGE 2 OF THAT, PARAGRAPH 5, THE PLAINTIFF'S
14 PRINCIPAL WITNESS AT TRIAL WAS DR. LELAND BITNER, WHO WAS
15 THE PLAINTIFF'S UNCLE AND HAD BEEN HER REGULAR DENTIST FOR
16 MANY YEARS. HE WAS A GENTLE DENTIST WHO ROUTINELY PERFORMED ? :-)
17 ENDODONTICS, I GUESS YOU SAY, SURGERY. DR. BITNER DOES NOT
18 SPECIALIZE IN OR LIMITED HIS PRACTICE TO ENDODONTICS. I
19 APOLOGIZE HOW YOU SAY THAT. THE TRIAL COURT FOUND THAT
20 DR. BITNER WAS QUALIFIED TO TESTIFY CONCERNING ENDODONTIC
21 PROCEDURES. THAT WAS ON PAGE 3 PARAGRAPH 15. THE DEFENSE
22 CHALLENGED HIM AS BEING AN EXPERT ON APPEAL. DEFENDANT
23 FIRST ATTACKS DR. BITNER'S QUALIFICATIONS TO TESTIFY AS AN
24 EXPERT IN ENDODONTICS UNDER UTAH RULES OF EVIDENCE. THE
25 COURT'S BASIC HOLDING IN THAT CASE WAS, YOUR HONOR, THAT A
843
1 TREATING PHYSICIAN, EVEN THOUGH HE'S NOT QUALIFIED AS AN
2 EXPERT NOR LISTED AS AN EXPERT, DOES HAVE A RIGHT TO TESTIFY
3 AS TO THOSE TYPE OF INJURIES AND THOSE TYPE OF THINGS THAT
4 HE DEALS WITH ON A DAILY BASIS, AS I UNDERSTAND THAT CASE.
5 WE SAY -- OUR FEELING IS BASED ON THIS CASE, OUR DOCTORS IF
6 THEY QUALIFY, IF THE FOUNDATION IS LAID, SHOULD BE ABLE TO
7 TESTIFY AS TO THEIR USE OF MORPHINE, TO THEIR USE OF --
8 UNDERSTANDING OF MORPHINE, SPECIFICALLY THEIR USE OF
9 MORPHINE INVOLVING THESE PATIENTS, AND THEIR BACKGROUND.
10 THAT'S OUR NUMBER ONE MOTION.
11 I UNDERSTAND ALSO, YOUR HONOR, THAT IN SOME OF THE
12 OBJECTIONS WE HAVE HAD, THE COURT HAS BEEN CONCERNED ABOUT
13 THE CUMULATIVE EFFECT OF THE TESTIMONY. AND SO I GUESS WHAT
14 I'M ASKING FOR, NUMBER ONE, IS GIVE THE COURT A CHANCE TO
15 REVIEW THAT CASE, BUT OUR MOTION IS I THINK THAT A DOCTOR
16 WHO WE LAY FOUNDATION AS TO HIS TRAINING, EVEN THOUGH HE'S
17 NOT AN EXPERT, HAS NOT BEEN QUALIFIED AS AN EXPERT, NOT
18 LISTED AS AN EXPERT, CAN TESTIFY TO THOSE TYPE OF THINGS.
19 THE COURT: WELL, I DON'T THINK THERE'S ANY
20 QUESTION THAT A DOCTOR WHO'S QUALIFIED CAN GIVE AN OPINION.
21 WHAT I HAVE SAID AND WHAT I SAID SPECIFICALLY YESTERDAY IS
22 YOU ARE CALLING A NUMBER OF EXPERTS THAT ARE GONNA TESTIFY
23 ABOUT THE SAME ISSUES. I JUST SAID WE'RE NOT GONNA HAVE
24 FIVE OR TEN PEOPLE --
25 MR. MAJOR: RIGHT.
844
1 THE COURT: -- FOR THIS JURY TO JUST LISTEN
2 TESTIFY. WE'RE JUST GONNA HAVE ONE AFTER ANOTHER AFTER
3 ANOTHER. THIS JURY DOESN'T HAVE TO HEAR TEN OR 15 OR 20
4 PEOPLE TO MAKE A POINT. AND I'M NOT GONNA MAKE A SIX-WEEK
5 TRIAL GO 12 WEEKS. THIS ISSUE -- NOTHING IN THIS CASE IS
6 ANY DIFFERENT FROM WHAT I'VE SAID. I THINK THE ISSUE
7 BECOMES, IF YOU'RE ASKING A DOCTOR HIS PERSONAL USE OF
8 MORPHINE, I DON'T BELIEVE THAT'S THE ISSUE. WHETHER A
9 DOCTOR USES IT PERSONALLY, SOME DOCTORS GIVE MORE MEDICATION
10 THAN OTHER DOCTORS, AND THE QUESTION BECOMES, IS THERE, YOU
11 KNOW, IF A STANDARD IS RELEVANT, WHAT IS THE STANDARD. IF
12 NOT, WHAT IS THE PERSONAL STANDARD.
13 MR. MAJOR: WELL, OUR POSITION IS I JUST WANT THE
14 CLARIFICATION. OUR POSITION IS, IN THIS CASE, IN THESE
15 CASES, THE DOCTOR SHOULD BE ABLE TO TESTIFY TO THIS SPECIFIC
16 PATIENT, THESE ARE THE -- I DID THESE PHYSICAL EXAMS, I KNOW
17 THIS PATIENT. THESE ARE THE REASONS I WOULD NOT HAVE GIVEN
18 MORPHINE. AND I UNDERSTAND THAT AND I UNDERSTAND WHAT THE
19 COURT'S -- I WANNA CLARIFICATION THAT IF WHAT THE COURT IS
20 SAYING, THESE WITNESSES WERE NOT BEING ALLOWED TO TESTIFY TO
21 THAT BECAUSE THEY'RE NOT EXPERTS OR SOMETHING LIKE THAT OR
22 IF IT WAS BECAUSE WE DON'T WANT A CUMULATIVE TESTIMONY.
23 THE COURT: WELL, YESTERDAY, I SPECIFICALLY TOLD
24 YOU IN THE AFTERNOON THAT IF YOU WANTED THE DOCTOR WHO WAS
25 ON THE STAND -- AND I BELIEVE IT WAS THE ORTHOPEDIC DOCTOR
845
1 WHO YOU WANTED TO TALK ABOUT MORPHINE. I SAID IF YOU WANT
2 THAT DOCTOR TO TESTIFY AND YOU WANT HIM TO BE -- GIVE EXPERT
3 OPINION ABOUT THE USE OF MORPHINE AND WHEN MORPHINE IS
4 APPROPRIATE, THEN I JUST SAID THE EFFECT OF THAT WOULD BE --
5 MR. MAJOR: RIGHT.
6 THE COURT: -- THAT IF YOU GOT FIVE OTHER MORPHINE
7 EXPERTS, I MAY NOT HAVE ALL OF THEM JUSTIFIED --
8 MR. MAJOR: AND THAT'S THE --
9 THE COURT: -- THAT'S EXACTLY --
10 MR. MAJOR: -- CLARIFICATION --
11 THE COURT: -- THAT'S EXACTLY --
12 MR. MAJOR: -- I'M ASSUMING IT WOULD BE THE SAME
13 WITH DR. CUNNINGHAM IF WE GET --
14 THE COURT: WELL, LET'S HEAR WHAT THE OTHER SIDE
15 HAS TO SAY. I DON'T KNOW IF THEY HAVE ANYTHING OTHER --
16 MR. STIRBA: NO, I DO HAVE A COUPLE OTHER
17 OBSERVATIONS ABOUT THE PROBLEM. I AGREE TOTALLY WITH THE
18 COURT IN TERMS OF THE CUMULATIVE NATURE OF THIS. BUT
19 REMEMBER, WE HAVE A SCHEDULING ORDER IN PLACE. WE HAVE
20 DESIGNATION OF EXPERTS. AND THEY'VE DESIGNATED THEIR
21 EXPERTS. AND TO ALLOW HIM TO COME IN HERE AND TESTIFY
22 BASICALLY IN AREAS THAT AN EXPERT WOULD TESTIFY, IT DEFEATS
23 THE WHOLE PURPOSE OF THE SCHEDULING ORDER IN THE FIRST
24 INSTANCE.
25 THE SECOND PROBLEM IS, WITH DR. CUNNINGHAM, HE ONLY SAW
846
1 MR. ALLDREDGE SEVEN TIMES IN 1995. THE FIRST TIME HE SAW
2 HIM WAS APRIL OF 1995. SEVEN TIMES. SO SUGGEST THAT
3 SOMEHOW HE HAS THIS BROAD UNDERSTANDING OF MR. ALLDREDGE'S
4 MEDICAL SITUATION IS NOT CONSISTENT WITH THE FACTS.
5 THE THIRD PROBLEM IS, THE RELEVANT INQUIRY HERE OF
6 COURSE, YOUR HONOR, IS GIVEN THE CIRCUMSTANCES OF THESE
7 PATIENTS IN THE HOSPITAL, WAS THE MEDICATION PRESCRIBED, TO
8 WIT: MORPHINE APPROPRIATE UNDER THE CIRCUMSTANCES? AND I
9 AGREE WITH THE COURT THAT SOME PERSONAL USE OR DIFFERENCES
10 IN PHILOSOPHY FROM PHYSICIANS TO PHYSICIANS IS REALLY
11 IRRELEVANT.
12 FINALLY, THIS GENTLEMAN IS NOT A MEDICAL DOCTOR. HE'S
13 A D.O. AND IF YOU LOOK AT THE SCOPE OF HIS PRACTICE UNDER
14 THE -- THE -- NOT THE MEDICAL PRACTICES ACT, BUT OSTEOPATHIC
15 PRACTICES ACT, IT'S EXCEEDINGLY LIMITED. AND IT CERTAINLY
16 DOESN'T QUALIFY HIM IN ANY WAY, SHAPE, OR FORM TO ADDRESS
17 THE QUESTION OF MORPHINE, HOSPICE CARE, OR ANYTHING LIKE
18 THAT.
19 AND FINALLY I'D SAY, IF -- I AGREE WITH THE COURT, IF
20 THEY WANNA CALL HIM AND TESTIFY AS TO EXPERT MATTERS AND
21 STANDARDS, FINE. BUT I THINK IN FAIRNESS TO US, THEN THEY
22 SHOULD LOSE ONE OF THEIR EXPERTS BECAUSE WE HAD A
23 DESIGNATION, AND THAT SCHEDULING ORDER IT SEEMS TO ME IS
24 SOMEWHAT SACROSANCT, ESPECIALLY IN THIS CASE.
25 MR. MAJOR: JUST IN RESPONSE TO THAT, YOUR HONOR,
847
1 WE'RE NOT NECESSARILY ASKING THAT HE -- I THINK THIS CASE
2 GOES FOR THE FACT THAT YOU DON'T HAVE TO LIST A PRACTICING
3 PHYSICIAN AS AN EXPERT ON -- EXPERT. THEY DON'T HAVE TO BE
4 LISTED. THEY DON'T HAVE TO BE QUALIFIED AS AN EXPERT. MY
5 ONLY CONCERN'S -- AND I UNDERSTAND WHERE THE COURT'S COMING.
6 I JUST WANTED A CLARIFICATION. ARE THESE DOCTORS NOT BEING
7 ALLOWED TO TESTIFY BECAUSE THEY DON'T QUALIFY FOR AN EXPERT
8 OR THE THINGS THAT --
9 THE COURT: WELL, UP TO THIS POINT, AND
10 SPECIFICALLY WITH THE DOCTOR, THE ORTHOPEDIC DOCTOR
11 YESTERDAY, YOU SAID YOU WANTED HIM TO TESTIFY ABOUT
12 MORPHINE. I JUST SAID TO YOU, YOU HAVE A CHOICE. YOU CAN
13 HAVE HIM TESTIFY ABOUT MORPHINE AND YOU CAN TAKE ONE OFF THE
14 LIST --
15 MR. MAJOR: WELL, AND THAT --
16 THE COURT: -- FOLLOW --
17 MR. MAJOR: -- THAT'S JUST A CLARIFICATION.
18 THE COURT: -- DIFFERENT -- WELL, THERE'S A
19 DIFFERENT ISSUE NOW, THOUGH. THEY'RE TALKING ABOUT, WE
20 ASKED -- THERE WAS A DESIGNATION OF WITNESSES TO BE GIVEN.
21 THAT DESIGNATION HAS BEEN MADE. PHYSICIANS WERE PUT APART
22 FROM EXPERTS. AND SO IN THIS CASE, YOU KNOW, WE TALKED
23 ABOUT WHEN DID EXPERTS HAVE TO BE NOTIFIED AND WE HAD A
24 DIFFERENT CALENDAR FOR WHEN EXPERTS HAD TO BE DESIGNATED,
25 WHEN THEIR REPORTS --
848
1 MR. MAJOR: RIGHT.
2 THE COURT: -- HAD TO BE GIVEN. PHYSICIANS THAT
3 WERE TREATING PHYSICIANS SUCH AS DR. CUNNINGHAM WOULD BE IN
4 THAT GROUP. SO I GUESS ONE OF THE QUESTIONS, WHAT DO YOU
5 SPEAK TO THE POINT THAT YOU DIDN'T DESIGNATE DR. CUNNINGHAM
6 AS AN EXPERT AND THAT THIS -- BASICALLY, YOU DIDN'T GIVE AN
7 EXPERT REPORT AND THAT THEY ARE NOT PREPARED BECAUSE OF
8 THAT?
9 MR. MAJOR: WELL, BECAUSE, YOUR HONOR, UNDER THE
10 STATUTE -- UNDER THE CODE -- NOT THE CODE, UNDER THE CASE
11 WE'VE GIVEN YOU, A PRACTICING PHYSICIAN DOESN'T HAVE TO BE
12 QUALIFIED AS AN EXPERT. HE DOESN'T HAVE TO BE LISTED AS AN
13 EXPERT. HE IS A PHYSICIAN WHO CAN TESTIFY CONCERNING HIS
14 FIELD OF EXPERTISE OR WHAT HE DOES. IN THIS CASE, THE
15 DOCTOR WAS NOT AN EXPERT IN THE TYPE OF SURGICAL PROCEDURE
16 THAT HE TESTIFIED TO. HE DID IT, BUT HE WASN'T AN EXPERT.
17 THE COURT: WELL, THIS CASE TALKS -- NOBODY --
18 LOOKING THROUGH THIS CASE AS YOU'VE BEEN SPEAKING, NOBODY IN
19 THIS CASE RAISED AN ISSUE THAT THIS PERSON WASN'T DESIGNATED
20 AS A WITNESS OR DESIGNATED OR WHAT -- THAT'S NOT THE
21 ISSUE --
22 MR. MAJOR: THE --
23 THE COURT: THE ISSUE IN THAT CASE IS WHETHER OR
24 NOT A TREATING PHYSICIAN CAN GIVE EXPERT OPINION. AND THEY
25 CAN. THERE'S NO QUESTION ABOUT THAT --
849
1 MR. MAJOR: RIGHT.
2 THE COURT: -- YOU KNOW, THE QUESTION BECOMES, CAN
3 A TREATING PHYSICIAN GIVE EXPERT OPINION IF THERE WAS A
4 DESIGNATION TO BE GIVEN AS TO WHEN WITNESSES SHOULD BE
5 DESIGNATED, AND THE DESIGNATION WAS THAT HE WAS A TREATING
6 PHYSICIAN AND NOT GOING TO GIVE EXPERT OPINION.
7 MR. MAJOR: I UNDERSTAND. I'M NOT -- I'M JUST
8 RAISING THIS JUST FOR THE PURPOSE OF A RECORD AND ANY
9 APPEALS.
10 THE COURT: OKAY. WELL, FOR THE PURPOSE OF THE
11 RECORD AND FOR THE PURPOSE OF EVERYTHING ELSE AND MAYBE JUST
12 FOR CLARIFICATION IN THE FUTURE, I LABORED UNDER THE
13 ASSUMPTION THAT WHAT WE DID BEFORE THE TRIAL AND THE
14 NUMEROUS 25 MOTIONS THAT WE HAD, THE SCHEDULING CONFERENCE,
15 AND EVERYTHING ELSE, THAT WHEN WE DESIGNATED WITNESSES, I
16 THOUGHT WE WERE ALL ON THE SAME PAGE, THAT PHYSICIANS WERE
17 GOING TO BE TESTIFYING, PHYSICIANS WERE -- WHO WERE THE
18 TREATING PHYSICIANS, THAT BOTH PARTIES WERE GOING TO HAVE
19 EXPERTS ABOUT THE CRITICAL ISSUES IN THIS CASE. AND I'M
20 GOING TO MAKE IT CLEAR THAT EXPERTS WHO ARE TESTIFIED AS
21 EXPERTS CAN TESTIFY ABOUT THAT. PHYSICIANS WHO ARE NOT
22 DESIGNATED AS EXPERTS ARE NOT GOING TO TESTIFY OUTSIDE OF
23 THEIR TREATMENT AREA. AND THAT'S JUST GOING TO BE WHAT THE
24 RULES ARE. THAT'S WHAT I UNDERSTOOD THE RULES WERE TO BE
25 COMING IN. AND IF FOR THE LAST TWO OR THREE DAYS WE'VE HAD
850
1 THIS SAME ISSUE, YOU'RE GOING BEYOND -- AND THAT'S BEEN
2 GOING ON CROSS-EXAMINATION, I WOULD JUST SAY TO YOU,
3 MR. MAJOR, IF YOU HAD ASKED -- ANSWERED YOUR OBJECTION, YOU
4 KNOW, FIVE QUESTIONS EARLIER WHEN MR. STIRBA WAS ASKING
5 ABOUT PULMONARY THINGS FROM AN ORTHOPEDIC, I WOULD HAVE
6 SUSTAINED THE OBJECTION --
7 MR. MAJOR: WE UNDERSTAND THAT. WE JUST DIDN'T
8 WANNA --
9 THE COURT: SO THAT'S WHAT WE'RE GONNA DO, SO I
10 THINK THAT THAT, YOU KNOW, THAT'S NOT AN ISSUE ABOUT WHAT
11 THIS CASE DEALS WITH, BUT THE ISSUE IS SIMPLY WHAT ARE THE
12 WITNESSES GOING TO TESTIFY ABOUT. HOW WERE THEY DESIGNATED.
13 AND WHAT WAS GONNA BE THEIR -- KIND OF THE SCOPE OF THEIR
14 TESTIMONY. AND I UNDERSTOOD THAT THAT'S WHAT WE DID IN THE
15 SCHEDULING ORDER. AND SO PHYSICIANS ARE GONNA TESTIFY ABOUT
16 HOW THEY TREATED THESE PEOPLE, AND EXPERTS ARE GONNA TESTIFY
17 ABOUT THE ISSUES THAT YOU'VE DESIGNATED BEFORE AND YOU'VE
18 GIVEN EXPERT REPORTS FOR.
19 IN ADDITION, I THINK THAT IT'S NOT -- I THINK IT'S --
20 IF SOMEBODY WAS GOING TO GIVE AN EXPERT OPINION OUTSIDE OF
21 JUST THEIR TREATMENT OF JUST GIVING THEIR TREATMENT, AND
22 THEY WERE NOT DESIGNATED AND THEY DIDN'T GIVE A REPORT, YOU
23 DID EXCHANGE REPORTS ON THOSE PEOPLE ABOUT THAT, I THINK
24 THAT WOULD BE UNFAIR. SO IS THERE ANYTHING WE NEED TO
25 DISCUSS?
851
1 MR. MAJOR: THERE WOULD BE ONE ISSUE DEALING WITH
2 THE CASE, YOUR HONOR, BUT WE CAN DEAL WITH THAT AT THE LUNCH
3 BREAK, YOUR HONOR, IT'S A MINOR --
4 THE COURT: OKAY. LET'S ASK THE JURY TO COME BACK.
5 IS THE DOCTOR HERE READY TO GO?
6 MR. MAJOR: DR. CUNNINGHAM.
7 THE COURT: YEAH, YOU MIGHT AS WELL HAVE HIM COME
8 IN.
9 (THE JURY RETURNS TO THE COURTROOM.)
10 THE COURT: OKAY. PLEASE BE SEATED. THE RECORD
11 SHOULD REFLECT THE PARTIES ARE PRESENT, THE DEFENDANT AND
12 THE JURY ARE PRESENT.
13 COUNSEL, WE'VE HAD A QUESTION FROM THE JURY. WE'VE
14 GIVEN THE JURY NOTE PADS SO THAT THEY CAN KEEP NOTES. AND
15 THEY HAVE A QUESTION WHETHER THEY CAN BRING IN A LAPTOP
16 COMPUTER TO TAKE NOTES.
17 MR. STIRBA: THAT'S A FIRST FOR ME, YOUR HONOR.
18 COULD I THINK ABOUT THAT A BIT?
19 THE COURT: YES. LADIES AND GENTLEMEN, WHAT WE'LL
20 DO IS WE'LL ADDRESS THAT ISSUE AND HOPEFULLY BEFORE NOON
21 WE'LL DO THAT. KIND OF REMINDS ME OF WHEN I WAS A LAWYER OF
22 FIRST OF ALL A PERSONAL INJURY CASE, JURIES WOULD ASK FOR A
23 CALCULATOR AND THEN WHEN THEY ASKED FOR A COMPUTER, WE KNEW
24 WE WERE IN TROUBLE. SO WE UNDERSTAND WHERE YOU'RE COMING
25 FROM IN DOING THAT. AND SOME PEOPLE TYPE BETTER AND CAN
852
1 READ THEIR WRITING BETTER DOING IT THAT WAY AND SO WE'LL
2 ADDRESS THAT ISSUE. I APPRECIATE YOU RAISING THAT.
3 A JUROR: WE JUST WANT IT IN THE JURY ROOM JUST TO
4 PLAY, NOT HERE. WE JUST WANTED TO DO SOMETHING IN THE JURY
5 ROOM. PLAY SOLITAIRE --
6 THE COURT: OH, YOU'RE ASKING NOT TO BE USED TO
7 TAKE NOTES; YOU'RE ASKING SO THAT YOU CAN DO --
8 A JUROR: DO STUFF OUT THERE.
9 THE COURT: -- WHEN YOU'RE ON BREAKS, BUT THAT
10 DOESN'T HAVE ANYTHING TO DO WITH THE CASE.
11 MR. MAJOR: I HAVE NO OBJECTION TO THAT. MATTER OF
12 FACT --
13 THE COURT: OKAY. WHAT ABOUT THAT ISSUE?
14 MR. STIRBA: JUST AS LONG AS IT'S ONLY SOLITAIRE.
15 THE COURT: OKAY. WELL, THEN, WHAT -- IS THAT
16 SOMETHING THAT YOU'RE TALKING ABOUT ONE OF YOU BRINGING
17 OR --
18 A JUROR: RIGHT.
19 THE COURT: OKAY. WELL, IF YOU WANT TO BRING THAT,
20 DON'T WRITE ANYTHING ABOUT THE CASE, AND DON'T DO E-MAILS TO
21 PEOPLE SAYING WHAT'S GOING ON WITH THE CASE OR ANYTHING.
22 BUT IF YOU WANT TO DO SOMETHING TO OCCUPY YOUR TIME WHEN
23 THERE ARE BREAKS, UNDER THAT UNDERSTANDING, THAT WOULD BE
24 FINE.
25 OKAY. THANK YOU. MR. MAJOR, WOULD YOU LIKE TO CALL
853
1 YOUR NEXT WITNESS?
2 MR. MAJOR: WE'D CALL DR. CUNNINGHAM TO THE STAND,
3 YOUR HONOR.
4 THE COURT: IF YOU'D COME FORWARD AND BE SWORN.
5 SCOTT CUNNINGHAM,
6 CALLED AS A WITNESS, BEING FIRST DULY SWORN,
7 WAS EXAMINED AND TESTIFIED AS FOLLOWS:
8 DIRECT EXAMINATION
9 BY MR. MAJOR:
10 Q. DOCTOR, WOULD YOU STATE YOUR NAME AND OCCUPATION?
11 A. THOMAS SCOTT CUNNINGHAM, PHYSICIAN.
12 Q. AND WHERE DO YOU PRACTICE, DOCTOR?
13 A. LOGAN, UTAH.
14 Q. AND WHAT DOES YOUR PRACTICE CONSIST OF?
15 A. GENERAL INTERNAL MEDICINE.
16 Q. AND WHAT DOES GENERAL INTERNAL MEDICINE ENTAIL?
17 A. SPECIFICALLY, IT'S ADULT MEDICAL CARE, NONSURGICAL. I
18 TREAT ADULT MEDICAL PROBLEMS OF A NONSURGICAL BASIS.
19 Q. WHEN WE TALK ADULT, IS THERE ANY PARTICULAR AGE?
20 A. OH, GENERALLY 16 OR GREATER.
21 Q. WHAT -- CAN YOU GIVE US A LITTLE BIT ABOUT YOUR
22 TRAINING, YOUR EDUCATION AND TRAINING BACKGROUND?
23 A. WENT TO UNDERGRADUATE AT UNIVERSITY OF MISSOURI,
24 COLUMBIA. MEDICAL SCHOOL AT UNIVERSITY OF HEALTH SCIENCES
25 IN KANSAS CITY. I DID A YEAR OF A ROTATING INTERNSHIP IN
854
1 MICHIGAN, BOTTSFORD GENERAL HOSPITAL. AND THEN I DID AN
2 INTERNAL MEDICINE RESIDENCY AT THE UNIVERSITY OF MISSOURI,
3 KANSAS CITY, '83 TO -- 1983 TO 1986.
4 Q. AND AFTER 1986 WHERE DID YOU PRACTICE?
5 A. I WAS IN THE NATIONAL HEALTH SERVICE CORPS, PUBLIC
6 HEALTH SERVICE IN MICHIGAN FOR FOUR YEARS IN A SMALL
7 COMMUNITY, AND THEN I PRACTICED IN A TOWN IN SOUTHERN
8 WISCONSIN FOR FOUR YEARS. AND THEN I CAME TO LOGAN.
9 Q. AND HOW LONG HAVE YOU BEEN IN LOGAN?
10 A. SINCE 1994.
11 Q. AND DO YOU HAVE ANY CERTIFICATES? ARE YOU BOARD
12 CERTIFIED IN --
13 A. I'M, YEAH, BOARD CERTIFIED IN INTERNAL MEDICINE IN 1986.
14 Q. OKAY. NOW, DOES YOUR PRACTICE INDICATE DEALING WITH
15 INTERNAL MEDICINE IN ADULTS ENTAIL ANYTHING ELSE? DO YOU DO
16 ANY OTHER TYPES OF CARE?
17 A. I'M A -- I WORK FOR THE LOCAL HOSPICE. I'M THE MEDICAL
18 DIRECTOR FOR THE CACHE VALLEY HOSPICE.
19 Q. AND THAT'S LOCATED WHERE?
20 A. LOGAN. BUT IT SERVES THE WHOLE CACHE VALLEY.
21 Q. WHAT DOES THAT ENTAIL?
22 MR. STIRBA: YOUR HONOR, I'M GONNA OBJECT AS TO
23 RELEVANCY IN TERMS OF WHAT HE DOES IN TERMS OF HOSPICE.
24 THE COURT: WHAT DOES THAT HAVE TO DO --
25 MR. MAJOR: YOUR HONOR, IT JUST GO TO HIS
855
1 BACKGROUND AND TRAINING, EXPERIENCE IN DEALING WITH ELDERLY
2 PATIENTS, DEALING WITH ENNIS ALLDREDGE.
3 THE COURT: JUST BRIEF BACKGROUND, BUT GO ON.
4 Q. (BY MR. MAJOR) WHY DON'T YOU JUST EXPLAIN THOSE, WHAT
5 THAT ENTAILS.
6 A. WE WORK AS A TEAM. WE MEET EVERY TWO WEEKS. WE REVIEW
7 HOSPICE PATIENTS, AND I HELP ANSWER MEDICAL PROBLEMS THAT
8 MIGHT OCCUR DURING THEIR CARE.
9 Q. OKAY. AND DOES THAT INVOLVE DEALING WITH END-OF-LIFE
10 CARE?
11 A. YEAH.
12 Q. I'M ASSUMING THAT'S WHAT HOSPICE MEANS?
13 A. THAT'S WHAT IT IS.
14 Q. NOW, DOCTOR, DID YOU HAVE A -- COME A TIME WHEN YOU HAD
15 AN OPPORTUNITY TO MEET WITH ENNIS ALLDREDGE?
16 A. YEAH, YEAH.
17 Q. AND WHAT WERE THE INITIAL CIRCUMSTANCES SURROUNDING
18 MEETING WITH HIM?
19 A. IN APRIL OF 1995, MR. ALLDREDGE CAME IN, I BELIEVE WITH
20 HIS WIFE, TO ESTABLISH CARE WITH ME. THEY HAD RECENTLY
21 MOVED TO LOGAN AND NEEDED A PHYSICIAN.
22 Q. AND THEY CHOSE YOU.
23 A. (WITNESS NODDED.)
24 Q. AND WHAT DID YOU DO ON THIS INITIAL MEETING?
25 A. TOOK HIS GENERAL MEDICAL HISTORY AND PERFORMED A
856
1 PHYSICAL EXAMINATION AND PERFORMED SOME LABORATORY STUDIES.
2 Q. AND DO YOU RECALL WHAT THE RESULTS OF THAT WAS?
3 A. ENTIRE -- YOU MEAN THE -- ALL OF THOSE THINGS?
4 Q. YES, AT THIS POINT, ALL THAT, THESE THINGS IN YOUR
5 INITIAL CONTACT WITH HIM.
6 A. HE WAS AN ELDERLY MAN WHO'D HAD A HISTORY OF DEMENTIA
7 WITH MEMORY LOSS. DIFFICULTY WITH THINKING. HIS -- THEY
8 HAD MOVED UP TO LOGAN APPARENTLY BECAUSE THE WIFE WAS
9 REQUIRING SOME SUPPORTIVE CARE AND THERE WAS APPARENTLY SOME
10 FAMILY MEMBERS, I DON'T RECALL EXACTLY WHO, BUT THAT LIVED
11 IN LOGAN SO THEY MOVED UP FROM DELTA, UTAH. HE ALSO HAD
12 DIABETES. HE HAD HYPERTENSION. HE HAD A HISTORY OF
13 CORONARY ARTERY DISEASE. AND THE MAJORITY -- HIS MEDICAL
14 PROBLEMS GENERALLY WERE STABLE. THEY WEREN'T PROBLEMATIC AT
15 THE TIME. HIS LABORATORY STUDIES WERE UNREMARKABLE.
16 Q. NOW, YOU MENTIONED HE HAD DIABETES. DO YOU KNOW HOW
17 LONG HE'D HAD DIABETES?
18 A. I DON'T KNOW. 20 years.
19 Q. LONG -- A FAIRLY LENGTHY PERIOD OF TIME, DO YOU RECALL?
20 A. I DON'T HAVE ANY MEMORY OF THAT.
21 Q. HOW ABOUT THE HYPERTENSION, DO YOU RECALL WHAT HE -- WAS
22 HE RECEIVING ANY MEDICATION FOR THE HYPERTENSION?
23 A. YEAH, HE WAS ON -- HE WAS ON HYTRIN WHICH IS A BLOOD
24 PRESSURE MEDICATION. AND I BELIEVE THAT'S ALL FOR HIS
25 HYPERTENSION.
857
1 Q. NOW, JUST FOR THE CLARIFICATION BENEFIT OF THE JURY,
2 WHAT DOES HYPERTENSION MEAN, COULD YOU EXPLAIN THAT?
3 A. HYPERTENSION'S HIGH BLOOD PRESSURE.
4 Q. THAT'S ALL IT MEANS. HIGH BLOOD PRESSURE CAN BE A RISK
5 FACTOR, CAN IT NOT? RISK OF DEATH?
6 A. RIGHT.
7 Q. COMPLICATION --
8 A. RIGHT. IT'S A RISK FACTOR FOR HEART DISEASE AND STROKE.
9 Q. IN YOUR TREATMENT OF MR. ALLDREDGE, YOU INDICATED HE
10 WAS -- APPEARED TO BE UNDER CONTROL?
11 A. RIGHT.
12 Q. HOW ABOUT THE DIABETES?
13 A. IN TERMS OF THE CONTROL?
14 Q. CONTROL, YEAH, WHAT TYPE OF CONTROL WAS BEING INITIATED?
15 A. HIS BLOOD SUGARS WERE RUNNING IN MEDIUM RANGE. THEY
16 WERE IN THE UPPER ONE HUNDREDS. I FELT IT WAS ADEQUATE
17 ENOUGH FOR HIM GIVEN HIS OTHER MEDICAL PROBLEMS. FOR
18 SOMEONE YOUNGER, I PROBABLY WOULD HAVE NEEDED TIGHTER
19 CONTROL, BUT FOR HIS -- HIM, I THOUGHT THAT WAS ADEQUATE.
20 GENERALLY SAFE.
21 Q. DID YOU ON THIS INITIAL VISIT FIND ANY UNUSUAL PHYSICAL
22 OR MENTAL CONDITION -- I MEAN PHYSICAL CONDITION, I SHOULD
23 SAY?
24 A. PHYSICALLY? NO, NOT PARTICULARLY.
25 Q. DID HE APPEAR TO BE IN GOOD HEALTH?
858
1 A. PHYSICALLY.
2 Q. PHYSICALLY.
3 A. RIGHT. He was quite strong...
4 Q. MENTALLY, HE HAD SOME -- THE PROBLEMS YOU DESCRIBED.
5 A. MENTALLY HE HAD MEMORY IMPAIRMENT.
6 Q. WHAT THEN OCCURRED? WHAT WAS NEXT AFTER THAT? WHAT'S
7 THE NEXT THING THAT YOU HAD WITH HIM AND WHY?
8 A. WELL, I SAW HIM A MONTH LATER JUST TO FOLLOW UP ON
9 THINGS AND -- AND HE WAS GENERALLY DOING REASONABLY WELL.
10 NO -- NO SIGNIFICANT CHANGES HAD OCCURRED.
11 Q. WHAT TYPE OF TESTS DID YOU RUN AT THAT TIME?
12 A. CAN I LOOK AT MY NOTES?
13 Q. YEAH, GO AHEAD.
14 A. I DIDN'T DO ANY OTHER TESTS AT THAT VISIT.
15 Q. BUT YOU JUST -- DID YOU INDICATE WHAT HIS PHYSICAL AND
16 MENTAL CONDITION WERE AT THAT TIME?
17 A. YEAH, AND I FELT THAT THEY HAD REMAINED ABOUT THE SAME.
18 Q. NO MAJOR CHANGES? NO CONCERNS?
19 A. I MODIFIED HIS INSULIN A LITTLE BIT. HIS BLOOD SUGARS
20 WERE RUNNING A LITTLE BIT LOW IN THE MORNINGS. AND I WAS
21 CONCERNED, I DIDN'T WANT HIM TO -- I DIDN'T WANT HIS BLOOD
22 SUGARS TO DROP TOO LOW, SO I DROPPED BACK ON SOME OF HIS
23 INSULIN. AND THAT'S ABOUT ALL I DID AT THAT VISIT.
24 Q. OKAY. AND THEN WHERE -- WHERE WAS THIS MEETING OR THIS
25 EXAM TAKE PLACE?
859
1 A. MY OFFICE, LOGAN.
2 Q. OKAY. DO YOU KNOW WHERE HE WAS LIVING AT THAT TIME?
3 A. IN MY RECORDS I LISTED MILLVILLE, WHICH IS RIGHT OUTSIDE
4 OF LOGAN.
5 Q. BUT THAT WAS STILL LIVING AT HOME.
6 A. HE WAS AT HOME, RIGHT. His home was in Delta, UT, 200 miles SW.
7 Q. WHAT WAS THE NEXT CONTACT YOU HAD WITH MR. ALLDREDGE?
8 A. AUGUST 3RD, AND APPARENTLY BY THAT TIME -- LET ME JUST
9 GO AHEAD AND DISCUSS --
10 MR. STIRBA: YOUR HONOR, IF I MAY, I HAVE NO
11 PROBLEM WITH HIM REFRESHING HIS MEMORY, BUT IF HE'S GONNA BE
12 REFERRING TO A DOCUMENT OR FILE, CAN WE IDENTIFY WHAT IT IS
13 SO WE KNOW WHAT HE'S REFERRING TO?
14 Q. (BY MR. MAJOR) THESE ARE YOUR -- I CAN DO THAT --
15 A. THESE ARE MY OFFICE NOTES.
16 Q. -- OFFICE NOTES. THESE WERE TAKEN AT THE TIME THAT YOU
17 DID THE INTERVIEWS --
18 A. RIGHT.
19 Q. -- THE TIME YOU DID THE PHYSICAL --
20 A. RIGHT.
21 Q. -- AND SO FORTH.
22 A. RIGHT, RIGHT.
23 Q. AND THEY DO HELP YOU REFRESH YOUR MEMORY?
24 A. RIGHT.
25 Q. OKAY. GO AHEAD, YOU MAY REFER TO REFRESH YOUR MEMORY.
860
1 A. SO AUGUST 3RD WAS THE NEXT VISIT. HE HAD BEEN SEEN BY
2 THE -- HE HAD BEEN EVALUATED BY A HOME HEALTHCARE OUTFIT THE
3 MONTH BEFORE, AND THEY FELT THAT HE QUALIFIED FOR HOME
4 ASSISTANCE WITH HEALTH AIDES AND PHYSICAL THERAPY, SO THAT
5 WAS ONE THING THAT HAPPENED. THE REMAINDER OF THE
6 EXAMINATION AGAIN WAS RELATIVELY UNREMARKABLE. THINGS HAD
7 NOT SUBSTANTIALLY CHANGED MEDICALLY.
8 Q. PHYSICAL CONDITION THE SAME?
9 A. YEAH.
10 Q. STILL APPARENTLY FAIRLY HEALTHY?
11 A. PHYSICALLY, RIGHT.
12 Q. PHYSICALLY. DID THE MENTAL HEALTH APPEAR TO CHANGE ANY?
13 A. NO, IT HADN'T. NOT DRAMATICALLY AT THAT POINT IN TIME.
14 Q. DURING THESE VISITS, WAS HE COMPLAINING OF ANY PAIN, ANY
15 PROBLEMS THAT WAY?
16 A. NO -- NO PAIN COMPLAINTS.
17 Q. OKAY. THANK YOU. THEN WHAT WAS THE NEXT CONTACT OR
18 VISIT YOU HAD?
19 A. SAW HIM AGAIN ON AUGUST 31ST, 1995. HE HAD BEEN
20 ADMITTED TO A NURSING HOME IN LOGAN. I DON'T PARTICULARLY
21 KNOW THE CIRCUMSTANCES UNDER WHICH HE WAS ADMITTED THERE. I
22 DON'T HAVE ANY REFERENCE IN MY NOTES TO THAT SO I CAN'T
23 RECALL THAT. AND BLOOD SUGARS ARE RELATIVELY WELL
24 CONTROLLED. HIS BLOOD PRESSURE WAS REASONABLY CONTROLLED.
25 AND THINGS WERE GENERALLY STABLE.
861
1 Q. HAD THERE BEEN ANY CHANGE IN HIS PHYSICAL HEALTH?
2 A. PHYSICALLY?
3 Q. YEAH.
4 A. NO.
5 Q. HAD THERE BEEN ANY CHANGE IN HIS MENTAL HEALTH AT THAT
6 TIME?
7 A. AGAIN, I'M REFERRING TO MY NOTES, BUT THE IMPL -- THE
8 SUGGESTION MY NOTES IS THAT HIS SPEECH WAS BECOMING A LITTLE
9 MORE DIFFICULT TO UNDERSTAND, A LITTLE BIT CONFUSED FROM
10 TIME TO TIME. AND THAT WAS THE FIRST REFERENCE I HAD MADE
11 ABOUT THAT SINCE I HAD SEEN HIM. SO HE'S HAVING SOME
12 DIFFICULTY WITH HIS SPEECH.
13 Q. OKAY. AND THIS POINT IN TIME HE'S IN A REST HOME, I
14 ASSUME CONTACTED YOUR OFFICE.
15 A. RIGHT, YEAH.
16 Q. SO HE WAS BROUGHT INTO YOUR OFFICE.
17 A. RIGHT.
18 Q. SO HE WAS CAPABLE OF AMBUL -- AMBULATORY.
19 A. RIGHT. MY INITIAL NOTE IN APRIL SAID THAT HE USED A
20 WALKER FOR AMBULATION, SO APPARENTLY HE WASN'T ABLE TO
21 AMBULATE WITHOUT ASSISTANCE.
22 Q. BUT NOTHING UNUSUAL THAT YOU PUT IN YOUR NOTES.
23 A. RIGHT.
24 Q. THEN WHAT WAS THE NEXT CONTACT YOU HAD WITH HIM?
25 A. NEXT CONTACT WAS OCTOBER 12TH, 1995. AND BETWEEN AUGUST
862
1 AND OCTOBER HE HAD MOVED AGAIN TO A DIFFERENT NURSING HOME,
2 TO SUNSHINE TERRACE. AGAIN, I DON'T KNOW WHY THE CHANGE WAS
3 MADE. AND HE WAS BROUGHT IN BECAUSE HE WAS FEELING
4 NAUSEATED AND HE WAS HAVING SOME VOMITING EPISODES OVER A
5 PERIOD OF, I SAID IN HERE, 24 HOURS.
6 Q. AND WHAT TREATMENT DID YOU GIVE IF ANY?
7 A. I DIDN'T -- WHEN I EXAMINED HIM, I DIDN'T FIND ANYTHING
8 ON THE EXAMINATION THAT SUGGESTED A SOURCE OF HIS ACUTE
9 MEDICAL ILLNESS. I EXAMINED HIM. I DIDN'T FIND ANYTHING
10 SUSPICIOUS. I DID BLOOD TESTS. I DID A BLOOD COUNT, A
11 BLOOD ANALYSIS, AND A URANALYSIS, AND THOSE WERE OKAY. SO I
12 DECIDED TO JUST OBSERVE HIM.
13 Q. OKAY. AND DID THAT NAUSEA GO AWAY?
14 A. I DON'T MAKE ANY OTHER REFERENCES TO IT, SO --
15 Q. SO ON --
16 A. -- I ASSUME IT DID.
17 Q. OKAY. NOW, DURING THIS PERIOD OF TIME, WAS HIS DIABETES
18 PRETTY MUCH IN CONTROL?
19 A. IT WAS REASONABLY CONTROLLED. AGAIN, I WAS A LITTLE BIT
20 LOOSE WITH HIM BECAUSE I DIDN'T WANT TO RISK ANY
21 HYPOGLYCEMIA, SO IT WAS REASONABLY CONTROLLED.
22 Q. HOW ABOUT HIS HYPERTENSION, BLOOD PRESSURE, ANY PROBLEM?
23 A. REASONABLY CONTROLLED, YEAH.
24 Q. AND WHAT WAS THE NEXT CONTACT YOU HAD WITH HIM?
25 A. I MIGHT STATE, IF I MIGHT ADD THIS, HIS -- MY NOTE, MY
863
1 OFFICE NOTE FROM THAT VISIT STATED THAT HE WASN'T REALLY
2 ABLE TO GIVE ME ANY SPECIFIC HISTORY ABOUT HIS PROBLEM, SO I
3 CAN ASSUME FROM MY NOTE IN THIS REGARD THAT HIS THINKING
4 PROCESS WASN'T AS -- AS SHARP AS IT WAS IN APRIL. AND HIS
5 SPEECH WAS AGAIN, SEEMINGLY LESS COHERENT AND HE WAS ABLE TO
6 COMMUNICATE EVEN LESS.
7 Q. OKAY. AND WHAT WAS THE NEXT THING THAT YOU WERE
8 INVOLVED WITH WITH MR. ALLDREDGE?
9 A. THE NEXT VISIT WAS NOVEMBER, AND HE WAS SEEN IN NOVEMBER
10 JUST AS A ROUTINE CHECK. BLOOD SUGARS WERE IN THE MID ONE
11 HUNDREDS, WHICH I -- WHICH IS ADEQUATE. AND HE WAS HAVING
12 AGAIN, SIGNIFICANT DIFFICULTY WITH EXPRESSING,
13 COMMUNICATION, SPEECH. THAT WAS MY ONLY COMMENT THERE.
14 Q. ANY INDICATION OF ANY PHYSICAL PROBLEMS THAT ALERTED
15 YOU, CAUSED YOU ANY CONCERNS?
16 A. NO.
17 Q. THEN WHAT WAS THE NEXT CONTACT?
18 A. JUNE 4TH. I ASKED TO HAVE THE NURSE -- I ASKED THE
19 NURSING HOME TO BRING HIM IN BECAUSE HE WAS BECOMING QUITE
20 VIOLENT. HE HAD BECOME VIOLENT, PHYSICALLY ABUSIVE DURING
21 DECEMBER. IT HAD KIND OF CRESCENDOED DURING THAT MONTH.
22 AND I ASKED THEM TO BRING HIM IN SO I COULD EVALUATE HIM ON
23 JANUARY 4TH TO SEE IF I COULD COME UP WITH A REASON HE MIGHT
24 BE DOING THAT.
25 Q. NOW, I THINK THE FIRST TIME YOU SAID IT WAS JUNE 4TH?
864
1 A. JANUARY 4TH --
2 Q. JANUARY 4TH?
3 A. -- 1996.
4 Q. OKAY. THAT'S -- WITH THAT CLARIFICATION. AND WHAT
5 TYPE -- WHAT OCCURRED WHEN HE WAS BROUGHT IN ON THIS
6 OCCASION? WHAT DO YOU OBSERVE?
7 A. HE WAS -- ACCORDING TO MY NOTE, I SEE HE WAS COMPLETELY
8 DISORIENTED. HE WAS AWAKE, ALERT, BUT HE WASN'T ABLE TO
9 REALLY -- COULDN'T UNDERSTAND HIM.
10 Q. UH-HUH.
11 A. HIS SPEECH HAD SIGNIFICANTLY DETERIORATED.
12 Q. OKAY.
13 A. HE COULDN'T EVEN GIVE ME ANY ANSWERS TO BASIC SIMPLE
14 QUESTIONS, WHO ARE YOU, THOSE SORTS OF THINGS. PHYSICAL
15 EXAMINATION AGAIN WAS UNREMARKABLE. AND WHAT I DECIDED TO
16 DO AT THAT VISIT -- I HAD BEEN USING SOME MEDICATIONS TO TRY
17 TO CONTROL HIS AGITATED BEHAVIOR IN DECEMBER. AND THEY
18 WEREN'T -- THEY WEREN'T WORKING EVEN BY INCREASING THE
19 DOSAGE, SO I SWITCHED HIM TO A DIFFERENT MEDICATION AT THAT
20 TIME.
21 Q. NOW, WHY WOULD YOU SWITCH TO A DIFFERENT MEDICATION?
22 A. BECAUSE THE ONE I WAS USING WASN'T WORKING.
23 Q. OKAY.
24 A. SO OFTENTIMES TRY TO -- DIFFERENT MEDICATION TO SEE IF
25 YOU CAN GET A -- CONTROL HIS BEHAVIOR THAT WAY.
865
1 Q. WAS THERE ANY -- OTHER THAN HIS MENTAL PROBLEM YOU
2 MENTIONED, WAS THERE ANY PHYSICAL PROBLEMS THAT YOU WERE
3 CONCERNED ABOUT?
4 A. NOT THAT I COULD FIND ON THE EXAMINATION.
5 Q. ANY PAIN THAT HE WAS CONCERNED WITH?
6 A. (WITNESS SHAKES HEAD.)
7 Q. WHAT HAPPENED THEN?
8 A. THAT WAS JUNE 4TH, AND THEN I RECEIVED A PHONE CALL FROM
9 THE NURSING HOME ON JUNE 8TH. HE HAD BECOME EVEN MORE
10 COMBATIVE. THE VISIT -- WHEN I SAW HIM ON JUNE 4TH, WHAT --
11 WHAT INITIATED THAT WAS HE APPARENTLY HAD THROWN A
12 WHEELCHAIR INTO A WOMAN WHO FELL AT THE NURSING HOME AND
13 BROKE HER HIP. SO I TOLD 'EM TO GET HIM IN SO I COULD
14 EVALUATE HIM, AND THEN SUBSEQUENTLY, AFTER THAT JUNE 4TH
15 VISIT, HE CONTINUED TO BE BELLIGERENT. HE APPARENTLY HIT AN
16 AIDE IN THE ABDOMEN. AND WAS THROWING THINGS. AND AT THAT
17 POINT IN TIME, I MEDICATED HIM AND ASKED THAT HE -- WE
18 INQUIRE ABOUT TRANSFERRING HIM TO DAVIS HOSPITAL.
19 Q. NOW, SO I'M ASSUMING AT THIS POINT IN TIME THAT HE'S --
20 HE'S DOING THIS, HIS PHYSICAL HEALTH WAS FAIRLY GOOD IF HE'S
21 THROWING THINGS?
22 A. YEAH, HE HAD EXCELLENT STRENGTH.
23 Q. AND HOW DID YOU COME TO KNOW ABOUT DAVIS NORTH HOSPITAL?
24 A. WELL, NOT ENTIRE -- I DON'T REALLY REMEMBER EXACTLY.
25 THINKING ABOUT IT, IT WAS EITHER THROUGH THE RECOMMENDATION
866
1 FROM THE NURSING HOME OR THROUGH A COLLEAGUE, AND THAT'S
2 ABOUT AS PRECISE AS I CAN BE.
3 Q. WHAT WAS YOUR UNDERSTANDING OF WHAT THE UNIT DID AT THE
4 HOSPITAL IN LAYTON?
5 A. CONTROL THIS KIND OF BEHAVIOR UNDER A FAIRLY -- UNDER A
6 PROTECTED SETTING. I MEAN I WAS QUITE CONCERNED THAT HE WAS
7 GOING TO HARM OTHERS AT THE NURSING HOME. HE WAS OUT OF
8 CONTROL. I COULDN'T CONTROL HIM. HE HAD ALREADY INJURED
9 ONE WOMAN, AND I NEEDED TO GET HIM INTO A PROTECTED SETTING
10 WHERE THEY COULD TITRATE HIS MEDICATIONS OR SEARCH FOR
11 TREATABLE CAUSES.
12 Q. AND DID YOU INITIATE THE CONTACT OR DID THE NURSING HOME
13 WITH THE GEROPSYCH UNIT?
14 A. APPARENTLY -- AND THIS IS JUST IN MY NOTES. APPARENTLY,
15 THIS WAS -- THIS WAS PERFORMED THROUGH A SOCIAL WORKER. AND
16 I DON'T KNOW -- I COULDN'T UNDERSTAND IN REVIEWING MY NOTES
17 WHETHER IT WAS A SOCIAL WORKER AT DAVIS HOSPITAL OR A SOCIAL
18 WORKER AT THE NURSING HOME, BUT --
19 Q. BUT YOU DIDN'T REALLY HAVE ANY PART IN THE INTAKE
20 PROCESS.
21 A. NOT THAT I RECALL.
22 Q. DID YOU HAVE ANY CONCERNS WHEN YOU RECOMMENDED MR.
23 ALLDREDGE TO GO DOWN TO THE GEROPSYCH UNIT? DID YOU HAVE
24 ANY CONCERNS FOR HIS PHYSICAL HEALTH AT THAT TIME?
25 A. NO.
867
1 Q. DID YOU HAVE ANY OTHER CONTACT WITH HIM AFTER HE LEFT
2 THE NURSING HOME?
3 A. NO.
4 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS, YOUR
5 HONOR.
6 MS. BARLOW: JUST A MINUTE, YOUR HONOR.
7 MR. MAJOR: I THINK MAYBE I HAVE ANOTHER ONE.
8 MS. BARLOW: SORRY.
9 MR. MAJOR: OKAY. THAT'S A GOOD IDEA. I THANK
10 MISS BARLOW, YOUR HONOR, I -- SHE INDICATED WE HAVE USED A
11 COUPLE OF TERMS WE MAY WANNA DEFINE.
12 Q. YOU MENTIONED ON THE THING ABOUT TITRATE MEDS.
13 A. UH-HUH.
14 Q. WHAT DOES THAT MEAN FOR THE JURY?
15 A. MODIFY THE DOSE, INCREASE THE DOSE, REDUCE THE DOSE, BUT
16 GENERALLY INCREASE THE DOSE OF THE MEDICATION TO TRY TO
17 BRING ABOUT A -- THE EFFECT YOU'RE TRYING TO ACHIEVE.
18 Q. OKAY. AND JUST FOR MY OWN CLARIFICATION, ANY TESTIMONY
19 THAT -- WHEN WE MIGHT HAVE SAID JUNE, YOU WERE REALLY
20 TALKING ABOUT JANUARY OF '96. BECAUSE I MAY HAVE USED --
21 A. RIGHT. THE ONLY TIME I SAW HIM WAS -- IN 1996 WAS
22 JANUARY 4TH.
23 Q. OKAY. BECAUSE I DON'T -- I APOLOGIZE, I MAY HAVE USED
24 THE TERM JUNE, TOO. SO THANK YOU. WITH THAT, WE HAVE NO
25 FURTHER QUESTIONS.
868
1 THE COURT: CROSS-EXAMINATION?
2 MR. STIRBA: YES, YOUR HONOR. THANK YOU.
3 CROSS-EXAMINATION
4 BY MR. STIRBA:
5 Q. GOOD MORNING, DOCTOR.
6 A. HI.
7 Q. I WAS REVIEWING YOUR MEDICAL RECORDS AND I NOTICE
8 THERE'S A D.O. --
9 A. RIGHT.
10 Q. -- AFTER YOUR NAME, NOT AN M.D.
11 A. RIGHT.
12 Q. D.O. STANDS FOR DOCTOR OF OSTEOPATHY?
13 A. RIGHT.
14 Q. SO YOU'RE NOT A MEDICAL DOCTOR, IS THAT RIGHT?
15 A. I'M A -- YEAH, WELL, I'M AN OSTEOPATHIC PHYSICIAN.
16 Q. WHICH IS DIFFERENT THAN A MEDICAL DOCTOR, ISN'T THAT
17 TRUE?
18 A. RIGHT.
19 Q. DO YOU -- DOCTOR, ARE YOU FAMILIAR WITH THE TERM ATAXIC?
20 A. SURE.
21 Q. AND TELL US PLEASE WHAT ATAXIC IS.
22 A. ATAXIC REFERS TO SOMEONE'S GAIT. THEY HAVE DIFFICULTY
23 WALKING. AND THE GAIT IS CALLED ATAXIC.
24 Q. AND BY HAVING DIFFICULTY WITH THE GAIT AND BEING ATAXIC,
25 MIGHT THAT BE A SYMPTOM OR A SIGN OF SOMEONE HAVING A STROKE
869
1 EVENT?
2 A. POSSIBLY, RIGHT.
3 Q. AND WOULD ALSO A SYSTEM, A SIGN OF A STROKE EVENT BE,
4 FOR EXAMPLE, SOMEBODY HAVING SLURRED SPEECH?
5 MR. MAJOR: WELL, YOUR HONOR, WE'RE GONNA OBJECT.
6 IT'S UNDER OUR --
7 MR. STIRBA: I'M GETTING THERE.
8 MR. MAJOR: -- CONVERSATION, I DON'T BELIEVE THIS
9 IS AN EXPERT THAT CAN TALK ABOUT THESE TYPE OF THINGS.
10 MR. STIRBA: YOUR HONOR, IF YOU WOULD INDULGE ME,
11 IT'S RELEVANT TO HIS TREATMENT OF THIS PATIENT.
12 THE COURT: IF YOU'RE ASKING A QUESTION OF THIS
13 PATIENT --
14 Q. (BY MR. STIRBA) SLURRED SPEECH, DOCTOR, WOULD THAT BE
15 A SIGN AND SYMPTOM OF PERHAPS A STROKE EVENT?
16 A. OF PERHAPS? PERHAPS, YES.
17 Q. CERTAINLY. IN OTHER WORDS, THERE'S A WHOLE
18 MANIFESTATION OF CLINICAL FACTORS THAT GO INTO DETERMINING
19 CERTAINLY CLINICALLY WHETHER SOMEONE'S HAVING A STROKE. ONE
20 OF THOSE SIGNS AND SYMPTOMS MAY BE SLURRED SPEECH, ISN'T
21 THAT TRUE?
22 A. CORRECT.
23 Q. NOW, YOU SAW MR. ALLDREDGE STARTING IN APRIL OF 1995, IS
24 THAT CORRECT?
25 A. RIGHT.
870
1 Q. AND YOU HAVE YOUR FILE IN FRONT OF YOU THERE?
2 A. CORRECT.
3 Q. AND I'D LIKE YOU TO TURN PLEASE TO YOUR I GUESS LAST
4 FULL VISIT ENTRY WHICH WOULD BE ON JANUARY 4TH OF 1996.
5 A. OKAY.
6 Q. DO YOU HAVE THAT IN FRONT OF YOU?
7 A. SURE.
8 Q. I'M GONNA PLACE THAT HERE SO THE JURY CAN SEE IT.
9 NOW, AT THE TOP YOU HAVE INDICATED THE MEDICAL HISTORY,
10 AND IT PRETTY MUCH SPEAKS FOR ITSELF; HOWEVER, I WANNA ASK
11 YOU ABOUT -- YOU SAY AFTER YOU DESCRIBE A CIRCUMSTANCE, YOU
12 SAY, WE HAVE BEEN ACCELERATING HIS MELLARIL.
13 A. UH-HUH.
14 Q. UP TO A DOSE OF CURRENTLY 50 MILLIGRAMS T.I.D. MY FIRST
15 QUESTION TO YOU IS, AND FOR OUR HELP, WHAT DOES T.I.D. STAND
16 FOR?
17 A. THREE TIMES DAILY.
18 Q. AND 50 MILLIGRAMS IS A DOSAGE LEVEL?
19 A. CORRECT.
20 Q. AND MELLARIL, IS IT NOT, IS A PSYCHOTROPIC MEDICATION,
21 CORRECT?
22 A. CORRECT, UH-HUH.
23 Q. AND PSYCHOTROPIC, WOULD YOU EXPLAIN TO US WHAT THAT
24 MEANS PLEASE?
25 A. MEANS IT AFFECTS BEHAVIOR.
871
1 Q. AND DO YOU KNOW WHAT CATEGORY MELLARIL IS IN TERMS OF
2 PSYCHOTROPIC MEDICATION?
3 A. IT'S A THIORIDAZINE. IT'S NEUROLEPTIC MEDICATION.
4 Q. WELL, THOSE -- AND I'LL ASK YOU TO EXPLAIN THOSE --
5 A. OKAY.
6 Q. -- BUT REALLY WHAT I WAS AFTER IS, IS IT AN
7 ANTIPSYCHOTIC MEDICATION, AN ANTIDEPRESSANT MEDICATION, OR
8 ANTIANXIETY MEDICATION?
9 A. ANTIPSYCHOTIC.
10 Q. AND WHAT DO YOU MEAN BY ANTIPSYCHOTIC?
11 A. MEANS IT CONTROLS INAPPROPRIATE BEHAVIOR.
12 Q. AND IT'S TRUE, IS IT NOT, THAT MELLARIL IS ALSO A
13 SEDATING DRUG?
14 MR. MAJOR: YOUR HONOR, AGAIN WE'RE GONNA RAISE
15 THIS ISSUE, WHETHER OR NOT THIS PATIENT IS QUALIFIED AS AN
16 EXPERT TO BE ABLE TO TESTIFY TO THESE TYPE OF DRUGS AND
17 SITUATIONS.
18 THE COURT: WELL, THIS IS A DOCTOR --
19 THE WITNESS: I'M NOT A PATIENT. I MEAN THE --
20 THE COURT: THIS DOCTOR PRESCRIBED THIS MEDICATION.
21 OVERRULED.
22 Q. (BY MR. STIRBA) IT'S A SEDATING MEDICATION, IS IT NOT?
23 A. CORRECT.
24 Q. AND BY SEDATING, YOU UNDERSTAND THAT TO MEAN IT HAS AN
25 EFFECT ON THE CENTRAL NERVOUS SYSTEM.
872
1 A. UH-HUH.
2 Q. TRUE?
3 A. TRUE.
4 Q. AND ALSO YOU INDICATE THAT YOU AT THAT POINT, YOU'RE
5 ACCELERATED THE MELLARIL UP --
6 A. UH-HUH.
7 Q. -- WITH THE ADDITION OF BUSPAR APPROXIMATELY TWO WEEKS
8 AGO OF 10 MILLIGRAMS, THREE TIMES A DAY. WE HAVE THAT
9 T.I.D. DO YOU SEE THAT?
10 A. RIGHT.
11 Q. NOW, BUSPAR IS ALSO A PSYCHOTROPIC MEDICATION, IS IT
12 NOT?
13 A. IT'S MORE OF A SEDATIVE.
14 Q. IT'S A SEDATIVE, NOT A PSYCHOTROPIC MEDICATION. It's both.
15 A. RIGHT.
16 Q. WHAT DO YOU MEAN BY A SEDATIVE?
17 A. I MEAN A MEDICATION THAT WILL CALM -- CALM DOWN ONE'S
18 AGITATION.
19 Q. AND IT'S TRUE THAT IN MR. ALLDREDGE'S CASE THE REASON
20 WHY YOU WERE PRESCRIBING MELLARIL IN CONJUNCTION WITH
21 BUSPAR, IT WAS AN ATTEMPT TO CONTROL HIS BEHAVIOR, ISN'T
22 THAT CORRECT?
23 A. RIGHT.
24 Q. IN OTHER WORDS, THE THINGS YOU HAVE DESCRIBED TO US IN
25 TERMS OF HIS BEHAVIOR, YOU WERE ATTEMPTING TO MEDICATE HIM
873
1 SO THAT YOU COULD CONTROL HIS BEHAVIOR, TRUE?
2 A. RIGHT.
3 Q. AND IN FACT, ONE OF THE THINGS THAT YOU WERE TRYING TO
4 DO WAS SEDATE HIM, ISN'T THAT CORRECT?
5 A. TRUE.
6 Q. AND ISN'T IT ALSO TRUE THAT DURING THE TIME THAT YOU
7 TREATED HIM, YOU ADJUSTED THE MEDICATION DEPENDING ON
8 CERTAIN CIRCUMSTANCES TO MAKE SURE THAT THERE WAS SOME FINE
9 LINE THAT WAS NOT REACHED WHERE HE WAS OVERSEDATED VERSUS
10 THE APPROPRIATE SEDATION. IS THAT A FAIR STATEMENT?
11 A. TRUE.
12 Q. IN OTHER WORDS, IT'S A SORT OF A JUGGLING ACT TO MAKE
13 SURE THE MEDICATION GETS RIGHT, ISN'T THAT CORRECT?
14 A. RIGHT, RIGHT.
15 Q. THEN UNDER CURRENT MEDICATIONS, AND THIS IS THE JANUARY
16 4TH, 1996 VISIT, YOU HAVE INSULIN 20 UNITS OF -- AND THERE'S
17 A WORD, HOW DO YOU PRONOUNCE THAT?
18 A. LENTE.
19 Q. AND WHAT IS LENTE.
20 A. THAT'S A FORM OF INSULIN. IT'S A TYPE OF INSULIN.
21 Q. AND INSULIN IS WHAT?
22 A. IT'S A HORMONE THAT REGULATES THE BODY'S BLOOD SUGARS.
23 Q. AND YOU MADE A DETERMINATION, DID YOU NOT, THAT
24 MR. ALLDREDGE WAS SUFFERING FROM DIABETES?
25 A. CORRECT.
874
1 Q. AND IN FACT, DID YOU DETERMINE HE HAD UNCONTROLLABLE
2 DIABETES FOR OVER 25 YEARS AT THE TIME HE SAW YOU?
3 A. I DIDN'T MAKE A DETERMINATION THAT HE HAD UNCONTROLLABLE
4 DIABETES. I HAD, HE HAD DIABETES.
5 Q. YEAH, CONTROLLED ONLY THROUGH MEDICATION, TRUE?
6 A. RIGHT.
7 Q. YOU WITHDRAW THE MEDICATION, AND HE WOULD BE IN VERY
8 SERIOUS MEDICAL CONDITION, WOULD HE NOT?
9 A. TRUE.
10 Q. AND WOULD YOU TELL US WHAT DIABETES IS?
11 A. IT'S SYSTEMIC DISORDER OF THE BODY WITH EITHER A LACK OF
12 INSULIN OR LACK OF RESPONSE TO INSULIN THE BODY MAKES.
13 Q. OKAY. AND COULD YOU EXPLAIN HOW -- HOW IF YOU HAVE
14 DIABETES, HOW IT'S A PROBLEM FOR YOU PHYSICALLY OR
15 PHYSIOLOGICALLY?
16 A. IT -- ASSOCIATED WITH DIABETES, IT'S CONSIDERED A
17 SYSTEMIC ILLNESS, SO NOT ONLY DO YOU HAVE PROBLEMS WITH
18 SIMPLY BLOOD SUGAR LEVELS, BUT IT ALSO CAUSES OTHER PROBLEMS
19 IN THE BODY INCLUDING CORONARY ARTERY DISEASE, HEART
20 ATTACKS. MR. ALLDREDGE HAD CORONARY ARTERY DISEASE. CAN
21 HAVE AN EFFECT ON THE EYES, ON THE NERVES, ON THE KIDNEYS.
22 Q. IT'S TRUE, IS IT NOT, THAT ESSENTIALLY IT'S AN ELEVATED
23 SUGAR LEVEL IN THE BLOOD?
24 A. WELL, YEAH, THAT'S ONE OF THE MANIFESTATIONS OF
25 DIABETES.
875
1 Q. AND THE ATTEMPT OF THE INSULIN IS TO CONTROL THE GLUCOSE
2 LEVEL IN THE BLOOD?
3 A. RIGHT.
4 Q. AND IT'S TRUE, IS IT NOT, THAT IF YOU HAVE TOO HIGH OF A
5 GLUCOSE LEVEL IN THE BLOOD, FOR EXAMPLE, LIKE MR. ALLDREDGE
6 EXPERIENCED, THAT COULD BE A VERY SERIOUS MEDICAL ISSUE FOR
7 YOU, ISN'T THAT RIGHT?
8 A. I MEAN SERIOUS -- IT DEPENDS ON LEVELS OF ELEVATION.
9 BLOOD SUGARS IN THE 200, 300 RANGE ARE WELL TOLERATED.
10 BLOOD SUGARS IN THE 800 OR 900 AREN'T. SO IT'S A RELATIVE
11 SITUATION ABOUT HOW UNCONTROLLED THE SUGARS ARE IN TERMS OF
12 HOW IMMEDIATE THE EFFECT WOULD BE.
13 Q. THEN YOU GO ON TO SAY, YOU HAVE TAGAMET, 800 MILLIGRAMS
14 UNDER CURRENT MEDICATION --
15 A. RIGHT.
16 Q. -- DID I PRONOUNCE THAT RIGHT?
17 A. RIGHT.
18 Q. WHAT KIND OF MEDICATION IS THAT, SIR?
19 A. THAT CONTROLS ACID, STOMACH ACID, IT'S AN ACID
20 SUPPRESSANT.
21 Q. THEN YOU INDICATE A NUMBER OF OTHER MEDICATIONS THERE AS
22 WELL. THAT -- THAT THYROXIN, WHAT IS THAT FOR?
23 A. THYROID.
24 Q. WHAT KIND OF --
25 A. HYPOTHYROIDISM.
876
1 Q. WHAT KIND OF THYROID CONDITION DID MR. ALLDREDGE HAVE?
2 A. LOW THYROID.
3 Q. AND WHAT EFFECT DOES THAT HAVE?
4 A. IF TREATED OR IF NOT TREATED? IF NOT TREATED --
5 Q. APPARENTLY IT WAS BEING TREATED --
6 A. IT WAS BEING TREATED, RIGHT, SO --
7 Q. IF NOT TREATED, SIR?
8 A. ULTIMATELY YOU CAN DIE IF YOU DON'T TREAT
9 HYPOTHYROIDISM.
10 Q. NOW, THEN YOU GO ON UNDER PHYSICAL EXAMINATION AND YOU
11 DESCRIBE THE CIRCUMSTANCES. SPECIFICALLY YOU STATE THAT HE
12 WAS UNABLE TO GIVE INTELLIGENT ANSWERS TO SIMPLE QUESTIONS.
13 IS THAT YOUR RECOLLECTION?
14 A. I RECOLLECT WHAT'S IN THIS CHART, SO YES.
15 Q. OKAY. AND YOU SAY HIS COMMUNICATION'S WITHOUT
16 SIGNIFICANT MEANING, TRUE?
17 A. TRUE.
18 Q. AND THEN YOU HAVE IMPRESSION. AND YOU INDICATE AGITATED
19 DEMENTIA, THAT'S YOUR --
20 A. RIGHT.
21 THE COURT: YOUR IMPRESSIONS ARE NOT ON THE SCREEN.
22 MR. STIRBA: OH, THANK YOU, YOUR HONOR. SORRY.
23 THANK YOU. THERE WE GO.
24 Q. UNDER IMPRESSION, YOU HAVE AGITATED DEMENTIA, TRUE?
25 A. TRUE.
877
1 Q. AND THAT'S YOUR ASSESSMENT OF, BASED UPON WHAT YOU
2 OBSERVED, HIS MENTAL CONDITION, CORRECT?
3 A. RIGHT.
4 Q. THEN YOU HAVE CORONARY ARTERY DISEASE, TRUE?
5 A. TRUE.
6 Q. AND YOU CERTAINLY ARE NOT TELLING THE JURY, ARE YOU,
7 THAT YOU ARE IN GOOD HEALTH IF YOU HAVE CORONARY ARTERY
8 DISEASE?
9 A. I DON'T -- NO, YOU'RE NOT IN GOOD HEALTH, BUT THERE'S A
10 QUESTION OF STABILITY OF THE PROCESS. SO HIS CORONARY
11 DISEASE WAS STABLE. IT WASN'T CAUSING HIM ANY IMMEDIATE
12 PROBLEMS.
13 Q. AND THAT COULD CHANGE THE NEXT DAY, CORRECT?
14 A. SURE.
15 Q. SO THE FACT THAT HE HAD CORONARY ARTERY DISEASE DOESN'T
16 MEAN HE WAS IN GOOD HEALTH, CORRECT?
17 A. RIGHT.
18 Q. AND THEN YOU HAVE TYPE 2 DIABETES MELLA -- YOU BETTER
19 PRONOUNCE THAT.
20 A. DIABETES MELLITUS.
21 Q. OKAY. AND THAT'S THE DIABETIC CONDITION WE'VE TALKED
22 ABOUT, CORRECT?
23 A. RIGHT.
24 Q. AND IT'S TRUE, IS IT NOT, IF YOU LOOK IN YOUR -- IF YOU
25 LOOK IN YOUR FILE, WHICH YOU HAVE IN FRONT OF YOU, YOU DID A
878
1 LITTLE TEST TO SEE HOW HE WAS DOING ON THE 4TH OF JANUARY.
2 A. UH-HUH.
3 Q. AND CAN YOU FLIP TO THAT PLEASE?
4 A. FLIP TO THE TEST?
5 Q. YEAH. OR MAYBE I'LL GIVE YOU --
6 A. SURE, I SEE IT.
7 Q. -- JANUARY 5TH.
8 A. SURE.
9 Q. AND THAT TEST WAS TO DETERMINE HOW MUCH CONTROL THERE
10 WAS --
11 A. RIGHT.
12 Q. -- FOR HIS DIABETIC CONDITION --
13 A. RIGHT.
14 Q. -- CORRECT?
15 A. RIGHT.
16 Q. AND IN FACT, I CAN JUST TURN TO THAT HERE. I HAVE PUT
17 UP ON THE SCREEN THE TEST THAT WAS DONE ON JANUARY 5TH,
18 1996.
19 A. UH-HUH.
20 Q. AND YOU HAVE -- YOU'RE GONNA HAVE TO PRONOUNCE THAT WORD
21 FOR ME -- GLYCATED --
22 A. GLYCATED HEMOGLOBIN.
23 Q. OKAY. WHAT IS GLYCATED HEMOGLOBIN?
24 A. THAT'S A MEASUREMENT TRYING TO GET A DETERMINATION AS TO
25 THE ADEQUACY OF BLOOD SUGAR CONTROL OVER SIX WEEKS OR SO.
879
1 Q. AND THE RESULT IS -- AS I INDICATE OR IT'S INDICATED,
2 12.4, CORRECT?
3 A. RIGHT.
4 Q. AND THEN IF YOU GO DOWN YOUR LITTLE --
5 A. POOR.
6 Q. POOR. POOR CONTROL RANGE --
7 A. RIGHT.
8 Q. -- GREATER THAN 12 PERCENT.
9 A. RIGHT.
10 Q. THAT'S WHAT THE TEST DETERMINED AT THAT TIME --
11 A. RIGHT.
12 Q. -- IS THAT CORRECT?
13 A. RIGHT.
14 Q. THEN GOING BACK TO YOUR NOTE ON JANUARY 4TH OF 1996, YOU
15 INDICATE HYPERTHYROIDISM. DO YOU SEE THAT?
16 A. NUMBER 5? ITEM 5.
17 THE COURT: 4.
18 Q. (BY MR. STIRBA) NUMBER 4.
19 A. I'M SORRY. IT'S THE WRONG PAGE.
20 Q. YEAH, IT'S THE JANUARY --
21 A. ITEM 4, RIGHT.
22 Q. YEAH, JANUARY 4TH ENTRY.
23 A. RIGHT.
24 Q. AND THEN OF COURSE YOU TESTIFIED WAS BEING TREATED WITH
25 THYROID --
880
1 A. RIGHT.
2 Q. -- REPLACEMENT --
3 A. RIGHT.
4 Q. -- THERAPY.
5 A. RIGHT.
6 Q. AND THEN WE HAVE HYPERTENSION, AND I GUESS YOU'RE SAYING
7 BY STABLE, HE WAS ON MEDICATION FOR HYPERTENSION, WHICH WAS
8 ADEQUATELY CONTROLLING HIS BLOOD PRESSURE, IS THAT RIGHT?
9 A. CORRECT.
10 Q. AND HYPERTENSION AS YOU'VE ALREADY TESTIFIED TO I
11 BELIEVE ON DIRECT, THAT COULD BE A SERIOUS CONDITION THAT
12 COULD END IN DEATH, ISN'T IT TRUE, IF NOT TREATED?
13 A. CORRECT.
14 Q. AND THEN YOU HAVE THE INDICATION OF URINARY
15 INCONTINENCE, DO YOU SEE THAT?
16 A. CORRECT, YES.
17 Q. AND THEN ON THE NEXT PAGE, PAGE 2 OF YOUR REPORT, THIS
18 IS JANUARY 4, 1996, YOU INDICATE, WE WILL DISCONTINUE
19 MELLARIL AND TRY -- RESPECTFUL --
20 A. YEAH, I THINK THAT'S A TYPOGRAPHICAL ERROR.
21 Q. OKAY. THAT'S WHY I KINDA LOOKED.
22 A. YEAH.
23 Q. THAT WORD DIDN'T SEEM TO FIT THERE. WHAT WORD DO YOU
24 THINK IT SHOULD HAVE BEEN?
25 A. RISPERDAL, I THINK IS WHAT THAT WAS MEANT TO BE.
881
1 RISPERDAL.
2 Q. RISPERDAL.
3 A. RIGHT.
4 Q. AND THAT WOULD BE .5 MILLIGRAMS?
5 A. CORRECT.
6 Q. AND THAT'S ONCE AGAIN, YOU'RE GONNA HAVE TO TELL US --
7 A. TWICE DAILY.
8 Q. -- WHAT DOES P.O.B.I.D. MEAN?
9 A. ORALLY. TWICE DAILY.
10 Q. OKAY. IN COMBINATION WITH BUSPAR, THE SEDATIVE,
11 CORRECT?
12 A. CORRECT, CORRECT.
13 Q. AND THEN YOU HAVE 10 MILLIGRAMS T.I.D. AND WHAT DOES
14 THAT STAND FOR AGAIN?
15 A. 10 MILLIGRAMS THREE TIMES DAILY.
16 Q. NOW, RISPERDAL IS ANOTHER MEDICATION, AND WHAT KIND OF
17 MEDICATION IS THAT?
18 A. THAT'S AN ANTIPSYCHOTIC AS WELL.
19 Q. OKAY. SO THAT'S ONE OF THESE PSYCHOTROPIC
20 MEDICATIONS --
21 A. RIGHT.
22 Q. -- CORRECT? AND IT'S TRUE, IS IT NOT, THAT RISPERDAL
23 ALSO HAS SEDATING QUALITIES, CORRECT?
24 A. TRUE.
25 Q. ONCE AGAIN, IT HAS AN EFFECT ON THE CENTRAL NERVOUS
882
1 SYSTEM, CORRECT?
2 A. UH-HUH.
3 Q. AND THAT'S WHY YOU GO ON TO --
4 THE COURT: CAN YOU ANSWER THAT LAST QUESTION?
5 THE WITNESS: YES.
6 Q. (BY MR. STIRBA) THAT'S WHY YOU GO ON TO SAY, OBVIOUSLY
7 IF THIS MEDICINE CAUSES OVERSEDATION, WE WILL HAVE TO
8 DISCONTINUE IT. RIGHT?
9 A. CORRECT.
10 Q. IN OTHER WORDS, THAT'S SOMETHING ONCE AGAIN, YOU WERE
11 CONCERNED ABOUT, YOU HAVE THE BUSPAR WHICH IS THE SEDATING
12 MEDICATION, AND YOU'RE CONJOINING THAT WITH THE RISPERDAL,
13 AND YOU HAVE SOME CONCERNS ABOUT OVERSEDATION, TRUE?
14 A. CORRECT.
15 Q. AND YOU DIDN'T KNOW, DID YOU, DOCTOR, WHEN YOU DECIDED
16 TO ORDER UP THOSE MEDICATIONS OR THAT REGIMEN, YOU DIDN'T
17 KNOW IN ADVANCE WHETHER IT WAS GONNA CAUSE OVERSEDATION OR
18 NOT, DID YOU?
19 A. YOU NEVER DO, SO YOU START AT A LOW DOSE AND YOU TITRATE
20 UPWARD, SO YOU ALWAYS START UPWARD. SO YOU ALWAYS START AT
21 THE LOWEST POSSIBLE DOSE AND TITRATE UP.
22 Q. TRUE, THERE'S A CERTAIN AMOUNT OF EXPERIMENTATION THAT
23 GOES ON BECAUSE AS YOU SAY, YOU NEVER KNOW, TRUE?
24 A. CORRECT.
25 Q. NOW, DOCTOR, YOU HAD RESPONSIBILITIES FOR TAKING CARE OF
883
1 MR. ALLDREDGE WHEN HE WAS AT THE SUNSHINE NURSING HOME, IS
2 THAT RIGHT?
3 A. TRUE.
4 Q. IN FACT, DURING THAT TIME PERIOD, I GUESS YOU WERE HIS
5 TREATING PHYSICIAN, CORRECT?
6 A. UH-HUH.
7 Q. AND IT'S TRUE, IS IT NOT, THAT THERE WERE TIMES,
8 ESPECIALLY TOWARDS THE END OF HIS STAY THERE, THAT HE
9 EXPERIENCED A SIGNIFICANT NUMBER OF TIMES WHERE HE FELL,
10 ISN'T THAT CORRECT?
11 A. HOW MANY TIMES?
12 Q. WELL --
13 A. I'D HAVE TO REFER TO MY NOTES. I HAVE A NOTE --
14 Q. YOU TELL ME HOW MANY TIMES YOU THINK HE FELL.
15 A. THERE'S A RECORD IN MY CHART FROM JANUARY 3RD, '96 THAT
16 HE FELL ON THE 29TH AND THE 31ST OF DECEMBER.
17 Q. AND HE COULD HAVE FALLEN OTHER TIMES AS REFLECTED IN THE
18 NURSING HOME RECORDS, BUT YOU WOULDN'T KNOW THAT, WOULD YOU?
19 AS YOU SIT HERE NOW.
20 A. NO.
21 Q. BECAUSE YOU DON'T HAVE SOMETHING IN FRONT OF YOU TO
22 REFRESH YOUR RECOLLECTION, CORRECT?
23 A. RIGHT.
24 Q. IT'S TRUE, IS IT NOT, THAT FALLING CAN BE AN OUTCOME OF
25 A STROKE EVENT?
884
1 A. CAN BE.
2 Q. AND IT'S TRUE, IS IT NOT, THAT THERE WERE TIMES WHEN HE
3 FELL THAT THE NURSING HOME WOULD CONTACT YOU --
4 MR. MAJOR: OBJECTION, YOUR HONOR. WE MIGHT, HE'S
5 ALREADY TESTIFIED THAT HE'S ONLY HAD THOSE TWO TIMES WHEN HE
6 HAD ANY CONTACT ABOUT FALLING. WE WANNA LIMIT HIS TESTIMONY
7 TO THOSE TWO TIMES, HE'S TESTIFIED HE DOESN'T HAVE ANY
8 KNOWLEDGE OF ANY OTHER TIMES IN THE NURSING HOME AND I THINK
9 THAT WOULD BE IRRELEVANT AND HE'S NOT CAPABLE OF TESTIFYING
10 TO ANY OTHER TIMES THAT HE FELL OR ANYTHING ABOUT THOSE
11 TIMES.
12 THE COURT: I DON'T BELIEVE THERE'S A QUESTION.
13 LET'S HEAR THE QUESTION, THEN MAKE THE OBJECTION. WHAT WAS
14 THE QUESTION?
15 MR. STIRBA: YEAH, THE QUESTION I WAS GONNA ASK,
16 YOUR HONOR, WAS:
17 Q. AND THERE WERE TIMES WHEN HE FELL THAT THE NURSING HOME
18 WOULD CONTACT YOU, TRUE?
19 A. THE ONLY TIME I'M AWARE OF THAT I WAS CONTACTED BY THE
20 NURSING HOME ABOUT A FALL WAS JANUARY 3RD, REPORTING A FALL
21 ON THE 29TH AND THE 31ST OF DECEMBER. AND THEY APPARENTLY,
22 ACCORDING AS TO MY RECORD, SAID NO INJURIES. NOW, THAT'S
23 ALL I HAVE DOWN.
24 Q. OKAY. AND THAT'S -- THAT'S BASED UPON YOUR RECORDS, IS
25 THAT RIGHT?
885
1 A. TRUE, SURE.
2 MR. MAJOR: WELL, IF WE'RE GONNA GET INTO THE
3 NURSING HOME RECORDS, HE'S ALREADY TESTIFIED HE -- HE
4 DOESN'T KNOW ANYTHING ABOUT THEM --
5 THE COURT: WELL, THERE ISN'T A PENDING QUESTION,
6 SO --
7 MR. MAJOR: I KNOW, BUT I'M ANTICIPATING THAT HE'S
8 ABOUT TO PLACE A DOCUMENT ON THE STAND AND EXPOSE IT TO THE
9 JURY --
10 MR. STIRBA: THIS -- AND I AM, YOUR HONOR. I DON'T
11 KNOW THE NUMBER OF THIS STATE EXHIBIT, BUT THIS IS THE
12 NURSING HOME RECORDS PROVIDED TO US BY THE STATE OF UTAH FOR
13 THE SUNSHINE CARE CENTER. AND I'M ABOUT TO REFER TO THE
14 VERY THING I THINK THE DOCTOR JUST TESTIFIED TO AS REFLECTED
15 IN THE NOTES FROM THE CARE CENTER. I'D OFFER THE EXHIBIT,
16 YOUR HONOR. I JUST DON'T KNOW WHAT NUMBER THE STATE WANTS
17 ME TO PUT ON IT.
18 MR. MAJOR: WELL, THE PROBLEM WITH THAT IS, YOUR
19 HONOR, HE'S ALREADY EXPRESSED -- THE WITNESS HAS EXPRESSED
20 THAT HE DOES NOT KNOW ANYTHING ABOUT THE NURSING NOTES,
21 NOTES, RECORDS. I DON'T THINK HE'S IN A POSITION HE CAN
22 TESTIFY TO THOSE UNLESS HE'S HAD ANY PERSONAL KNOWLEDGE
23 ABOUT IT.
24 THE COURT: WELL, UNTIL WE KNOW WHAT IT IS, I DON'T
25 KNOW WHAT THE DOCUMENT IS --
886
1 MR. MAJOR: AND I DON'T KNOW WHAT THE DOCUMENT --
2 THE COURT: -- BUT WHY DON'T YOU SHOW IT TO THE
3 WITNESS FIRST?
4 MR. MAJOR: BUT I DON'T WANT IT EXPOSED TO THE JURY
5 UNTIL WE KNOW EXACTLY WHAT --
6 THE COURT: OKAY. LET HIM SHOW IT TO THE WITNESS
7 AND ASK A QUESTION.
8 MR. STIRBA: OKAY, SURE.
9 Q. (BY THE COURT) SURE LET ME SHOW YOU WHAT IS A NOTE,
10 DOCTOR, FROM THE NURSING HOME RECORDS AND IT'S DATED 1/4 OF
11 '96. DO YOU SEE THE NOTE I HAVE IN FRONT OF YOU?
12 A. UH-HUH.
13 Q. AND IT REFERS TO AN EVENT THAT -- JUST READ SILENTLY TO
14 YOURSELF AND YOU'LL SEE THERE'S A REFERENCE TO YOU THERE.
15 THAT'S WHY I'M ASKING YOU ABOUT IT.
16 A. UH-HUH. OKAY.
17 Q. AND THERE IS YOUR NAME REFERENCED IN TERMS OF AN ATTEMPT
18 BY THE NURSING HOME TO CONTACT YOU CONCERNING THAT EVENT,
19 TRUE?
20 A. YEAH, THEY HAVE A NOTE THAT I WAS CALLED.
21 MR. STIRBA: OKAY. YOUR HONOR --
22 THE WITNESS: I DON'T KNOW WHY.
23 MR. STIRBA: -- WE WOULD -- WE WOULD NOW LIKE TO --
24 AS I SAY, THIS IS A STATE EXHIBIT, YOUR HONOR. I'M OFFERING
25 IT. AND I'D LIKE TO BE ABLE TO CROSS-EXAMINE THE WITNESS
887
1 CONCERNING THE RECORDS OF THE NURSING HOME.
2 THE COURT: OKAY. DO YOU WANT TO MARK IT AND SHOW
3 IT --
4 MR. MAJOR: WE HAVE -- WE HAVE IT. MY PROBLEM IS,
5 NUMBER ONE, I DON'T SEE THE RELEVANCY. NUMBER TWO --
6 THE COURT: OKAY. WELL, FIRST OF ALL, LET'S --
7 LET'S DO THIS: LADIES AND GENTLEMEN, I'M -- HOW MUCH MORE
8 TIME DO WE HAVE WITH THIS WITNESS?
9 MR. STIRBA: I HAVE ABOUT FIVE MINUTES, YOUR HONOR.
10 THE COURT: OKAY. LADIES AND GENTLEMEN, LET'S JUST
11 TAKE A REAL SHORT BREAK, JUST GO TO THE JURY ROOM, AND WE'RE
12 JUST GOING TO RESOLVE ONE ISSUE AND GET THIS WITNESS DONE
13 BEFORE WE TAKE OUR LUNCH BREAK.
14 (AFTER ADMONISHING THE JURY, THE COURT
15 EXCUSED THE JURY FROM THE COURTROOM.)
16 THE COURT: OKAY. PLEASE BE SEATED. THE RECORD
17 SHOULD REFLECT THE JURY IS NOT IN THE COURTROOM. OKAY. CAN
18 I JUST SEE THE EXHIBIT?
19 MR. STIRBA: CERTAINLY.
20 MR. MAJOR: WE HAD -- WE'RE TRYING TO FIND -- WE
21 THOUGHT WE HAD OUR COPY OF IT, BUT I'M NOT SURE IF WE'VE GOT
22 THE RIGHT PAGE.
23 THE COURT: WELL, WHY DON'T YOU SHOW IT TO COUNSEL
24 FIRST.
25 MR. STIRBA: WELL, NOW I LOST IT. OR IT'S GONE.
888
1 MS. BARLOW: STILL UP WITH THE WITNESS?
2 THE WITNESS: I HID IT. I DON'T --
3 MR. STIRBA: DID I GIVE IT TO YOU, VICKI?
4 THE CLERK: NO.
5 MR. STIRBA: I HAD IT.
6 THE COURT: WELL, I TOLD HER TO MARK IT.
7 MR. STIRBA: I CAN'T BELIEVE THAT'S WHAT
8 HAPPENED -- LET ME FIND IT, JUDGE.
9 THE COURT: ALL RIGHT. ANYONE WHO HAS THE EXHIBIT,
10 COME FORWARD.
11 MR. STIRBA: HERE IT IS, YOUR HONOR.
12 THE COURT: WHY DON'T YOU SHOW IT TO THEM FIRST SO
13 THEY KNOW WHAT WE'RE TALKING ABOUT.
14 MS. BARLOW: WHAT I GUESS, YOUR HONOR, WE CAN'T SEE
15 IS WHERE HE'S REFERRING IN THE REPORT OF THE FALL.
16 THE COURT: WELL, THINK IT'S 1/4/96 ON THE BOTTOM
17 OF THE PAGE. IT SAYS PUT TO BED. FOUND ON FLOOR IN ROOM.
18 IS THAT WHAT YOU'RE TALKING ABOUT?
19 MR. STIRBA: THAT'S RIGHT, YOUR HONOR. THAT'S ONE
20 OF THE ENTRIES.
21 THE COURT: ABOUT FOUR -- FOUR LINES FROM THE
22 BOTTOM.
23 MS. BARLOW: WELL, THIS -- EXCUSE ME.
24 MR. MAJOR: GO AHEAD, YOU TAKE IT.
25 MS. BARLOW: HE HAS TESTIFIED THAT ON THE 3RD OF
889
1 JANUARY HE WAS TOLD OF FALLS THAT HAPPENED ON THE 29TH AND
2 THE 30TH. THIS EVIDENTLY IS A PERSON WHO'S OUT ON BED ON
3 THE 4TH. DOESN'T SAY A FALL, FOR ONE THING.
4 MR. STIRBA: I'M OFFERING THE DOCUMENT. THAT'S
5 WHAT I WANNA DO. AND IF THERE'S SOME QUESTION ABOUT ITS
6 AUTHENTICITY OR SOMETHING ELSE, FINE. BUT I'M OFFERING THE
7 DOCUMENT AND I'M ENTITLED TO CROSS I THINK IF IT'S EVIDENCE.
8 THE COURT: OKAY. IS THERE ANY OBJECTION TO THE
9 DOCUMENT?
10 MR. MAJOR: TO THE ACTUAL DOCUMENT COMING IN, NO.
11 CROSS --
12 THE COURT: OKAY. THEN LET'S MARK IT AS YOUR --
13 ARE WE MARKING IT HAS A WHOLE RECORD OR ARE WE GONNA MARK --
14 MR. STIRBA: I WOULD PREFER, YOUR HONOR, THIS IS
15 THE NOTEBOOK FROM THE RECORDS THAT THE STATE PROVIDED ME. I
16 WOULD PREFER TO JUST OFFER THIS AS THEIR EXHIBIT BECAUSE
17 ULTIMATELY I THINK THAT'S WHAT THEY WANNA DO AND I'LL JUST
18 USE THESE TWO PAGES.
19 THE COURT: OKAY.
20 MR. STIRBA: I JUST DON'T KNOW WHAT EXHIBIT NUMBER
21 THEY WANT --
22 THE COURT: DO YOU HAVE ANY OBJECTION TO HAVING --
23 PARDON ME -- HAVING -- WHAT ARE THOSE RECORDS?
24 MR. STIRBA: THESE ARE THE SUNSHINE CARE NURSING
25 HOME RECORDS PROVIDED BY THE STATE.
890
1 THE COURT: OKAY. THIS FOR JUST ONLY
2 MR. ALLDREDGE.
3 MR. STIRBA: YES, THAT'S CORRECT, YOUR HONOR.
4 MR. MAJOR: WE HAVE NO OBJECTION TO THAT.
5 THE COURT: OKAY. WELL, WHAT DO YOU WANT IT TO BE
6 MARKED THEN? DO YOU WANT IT TO BE MARKED AS YOUR EXHIBIT?
7 MR. MAJOR: IT'D BE MARKED AS OUR EXHIBIT, BUT
8 WHATEVER --
9 THE COURT: OKAY. WHAT'S THE NEXT ONE? OKAY.
10 DEFENDANT EXHIBIT 11 THEN, SO WHY DON'T YOU -- DO YOU WANNA
11 BRING THAT -- DO WE HAVE THE BOOK?
12 MR. MAJOR: YOUR HONOR, IS THIS DEFENDANT'S EXHIBIT
13 OR PLAINTIFF'S EXHIBIT?
14 MR. STIRBA: MAY I MAKE THIS SUGGESTION? I
15 THINK --
16 MS. BARLOW: HERE IS -- HERE IS AN UNMARKED FOR THE
17 COURT, A COPY THAT WE HAD MADE. THAT IS THE SAME --
18 MR. STIRBA: CAN THIS BE THE EXHIBIT THEN?
19 MS. BARLOW: THAT CAN BE THE EXHIBIT THAT WE
20 CREATED.
21 MR. STIRBA: WHAT NUMBER DO YOU WISH?
22 THE CLERK: STATE 11.
23 THE COURT: DO YOU WANT IT TO BE A DEFENDANT
24 EXHIBIT OR DO YOU WANT IT TO BE A PROSECUTION EXHIBIT?
25 MR. MAY: IT'S THE PROSECUTION'S EXHIBIT, YOUR
891
1 HONOR.
2 THE COURT: OKAY. SO IT WOULD BE P-11? WHAT IS
3 THE P., WHERE ARE WE AT ON THE --
4 THE CLERK: 11.
5 MS. BARLOW: SO IT'S P-11.
6 THE COURT: PLAINTIFF'S EXHIBIT 11.
7 MS. BARLOW: MAKE SURE WE'RE ALL ON THE SAME PAGE.
8 THE COURT: OKAY. SO YOU HAVE NO OBJECTION TO
9 PLAINTIFF'S EXHIBIT 11 BEING RECEIVED?
10 MR. STIRBA: I DO NOT, YOUR HONOR.
11 THE COURT: WELL, NO, I'M TALKING --
12 MR. STIRBA: SORRY.
13 THE COURT: I GUESS IT'S THE -- IS THERE ANY
14 OBJECTION?
15 MS. BARLOW: NO.
16 MR. MAJOR: WE HAVE NO -- "Who's on first?"
17 THE COURT: OKAY. THEN IT'S RECEIVED. OKAY THEN.
18 OKAY. BEFORE WE GET THE JURY BACK IN, DO YOU HAVE ANY OTHER
19 OBJECTION ABOUT HIM BEING ABLE TO USE THIS EXHIBIT WITH THIS
20 WITNESS?
21 MR. MAJOR: WELL, OUR OBJECTION IS, YOUR HONOR, IS
22 THAT HE HAS ALREADY TESTIFIED THAT HE ONLY HAS NOTES, ONLY
23 RECALLS BEING CALLED BY THE NURSING HOME I THINK HE SAID ON
24 THE 3RD. THIS IS ON THE 4TH. THERE IS A NOTE IN THERE THAT
25 SAYS DR. CUNNINGHAM CALLED. WE DON'T KNOW IF IT WAS HIS
892
1 OFFICE THAT WAS CALLED. DID THEY SPEAK TO A NURSE, DID THEY
2 MISS --
3 THE COURT: BUT ISN'T THAT WHAT HE'S TRYING TO DO?
4 I MEAN --
5 MR. MAJOR: WELL, I MEAN WE'VE GOTTA GET -- I
6 DON'T -- MY PROBLEM IS, IF DR. CUNNINGHAM TESTIFIES, I DON'T
7 RECEIVE -- RECALL RECEIVING THAT CALL, I DON'T RECALL --
8 THE COURT: WELL, OKAY. IF HE SAYS I DON'T RECALL
9 RECEIVING THE CALL, THAT ENDS IT. BUT IF IT'S JUST LIKE
10 OUR -- ONE OF THE LAST WITNESSES THAT WE HAD BEFORE THE
11 BREAK THIS MORNING, THEY SAW AN EXHIBIT AND THEN IT STARTS
12 GIVING SOME IDEA, OH, YEAH, I REMEMBER, OKAY --
13 MR. MAJOR: AND MY OBJECTION SIMPLY IS IS THAT'S
14 ALL WE -- WE DON'T WANT HIM TO GO INTO THE DETAILS OF THAT.
15 IF HE SAYS, I DON'T REMEMBER, WE DON'T WANT THE DEFENSE
16 READING THAT AND SAYING, WELL, WHAT DO YOU THINK ABOUT THIS,
17 WHAT DOES THIS MEAN OR --
18 THE COURT: WELL, HOW DO YOU ASK THE QUESTION IF
19 YOU'VE HEARD ABOUT IT UNLESS -- IF YOU'VE GOT A DOCUMENT
20 THAT'S RECEIVED INTO EVIDENCE, IT'S RECEIVED INTO EVIDENCE,
21 IT CAN BE READ --
22 MR. MAJOR: SURE.
23 THE COURT: -- AND HOW CAN HE NOT DO THIS? I MEAN
24 I DON'T UNDERSTAND, YOU KNOW, WHY WE'RE HAVING THIS BIG
25 HASSLE. ALL THESE MEDICAL RECORDS ABOUT THESE INDIVIDUALS,
893
1 IT SEEMS TO ME THE MEDICAL CONDITION OF EACH OF THESE
2 PATIENTS BEFORE THEY GO TO THE DAVIS HOSPITAL IS EXTREMELY
3 IMPORTANT. AND WHAT THEIR CONDITION -- THEY'RE TRYING TO
4 SAY, YOU KNOW, THEY'RE IN A CERTAIN CONDITION. THE DEFENSE
5 ATTORNEYS SAY THEY'RE IN ANOTHER CONDITION. WHATEVER THE
6 CONDITION IS NEEDS TO BE STATED. AND THERE'S -- I DON'T
7 UNDERSTAND WHY WE'RE HAVING AN ARGUMENT OVER RECORDS THAT
8 ARE RECEIVED INTO EVIDENCE AND ASKING WITNESSES IF -- YEAH,
9 I'M NOT GONNA LET IT GO ON AND -- IF HE ASKS A QUESTION,
10 HERE'S A REFERENCE, DOCTOR, THAT THE CARE CENTER CALLED YOU.
11 DOES THAT REFRESH YOUR MEMORY. IF HE SAYS NO, THAT KIND OF
12 ENDS THE DISCUSSION. IF HE SAYS, OH, YEAH, THAT DOES
13 REFRESH MY MEMORY, THEN OKAY, TELL US ABOUT IT.
14 MR. MAJOR: WELL, AND MY ONLY CONCERN, YOUR HONOR,
15 THIS GOES TO THE ONE OF THE THINGS I WANTED TO TALK TO YOU
16 ABOUT LUNCH. I GUESS WE CAN ADDRESS IT HERE. MY CONCERN ???
17 THAT WE HAVE IS THAT THESE RECORDS ARE COMING IN, BUT
18 THEY'RE COMING IN JUST SIMPLY BY STIPULATION. BUT THE
19 PERSON WHO WROTE THESE NOTES, THE PERSON WHO INTERPRETED
20 THESE NOTES ISN'T HERE TO TESTIFY. WE'VE ALREADY HAD THIS
21 SITUATION HAPPEN EARLIER WITH FAMILY MEMBERS OF ELLEN
22 ANDERSON. DR. KELLER'S NOTE WAS PUT ON THE STAND TALKING
23 ABOUT A TUMOR IN THE LUNG, TALKING ABOUT WE'RE GONNA SEND
24 THIS TO THE RADIOLOGIST. NOW, THAT'S IMPLIED IN THE JURY'S
25 MIND THAT SHE HAD A PROBLEM.
894
1 THE COURT: WELL, BUT THAT RECORD'S COMING INTO
2 EVIDENCE.
3 MR. MAJOR: WELL, I KNOW, BUT THE PROBLEM WITH THAT
4 IS, YOUR HONOR, IS WE DID NOT LIST DR. KELLER ON OUR WITNESS
5 LIST. WE NOW HAVE GOTTA MAKE A MOTION FOR THIS COURT TO
6 BRING DR. KELLER IN TO INTERPRET WHAT THAT NOTE MEANT AND
7 WHAT THE RESULTS OF THAT RADIOLOGIST'S TEST WAS, WHETHER
8 THERE WAS A TUMOR IN THERE OR NOT.
9 THE COURT: OKAY. WELL, LET'S JUST GO BACK TO
10 BASIC EVIDENCE. BASIC EVIDENCE SAYS THAT IF A DOCUMENT
11 COMES INTO EVIDENCE, IT CAN BE USED FOR ANY PURPOSE. ONCE
12 IT'S IN EVIDENCE, IT DOESN'T MATTER, WE DON'T HAVE TO HAVE
13 THE WRITER OF THE DOCUMENT. WE CAN ASK -- THAT CAN BE USED
14 AS EVIDENCE. THE JURY COULD SEE IT RIGHT NOW. IF IT'S IN
15 EVIDENCE, THE JURY CAN SEE IT.
16 NOW, IF IT ISN'T APPROPRIATE, I'M NOT JUST GONNA HAVE
17 THE JURY SEEING EXHIBITS THAT SOMEBODY ISN'T BEING
18 QUESTIONED ABOUT. IT MAKES NO SENSE. BUT WHAT WE'VE HAD UP
19 TO THIS POINT IS A QUESTION LIKE -- AND THE DR. KELLER
20 EXAMPLE IS, OKAY, THE DOCTOR PUTS THIS IN HIS RECORD. DOES
21 THAT -- DO YOU REMEMBER HAVING A CONVERSATION WITH THIS
22 DOCTOR, AND THE WITNESS SAYS, NO, I REALLY DON'T --
23 MR. MAJOR: YEAH, I GUESS --
24 THE COURT: -- BUT THE POINT IS, YOU HAVE TO HAVE
25 WHAT WAS SAID SO THAT YOU KNOW --
895
1 MR. MAJOR: RIGHT.
2 THE COURT: -- TO REFRESH THE MEMORY OF THE
3 WITNESS.
4 MR. MAJOR: AND I GUESS I DIDN'T MAKE MYSELF
5 EXACTLY CLEAR ON WHAT I'M GETTING AT. WE HAVE NO OBJECTION
6 TO THAT. WE HAVE NO OBJECTION TO -- IF THAT'S THE CASE, IF
7 THIS COMES IN, THIS GOING TO THE JURY. IF WE HAVE THIS
8 DOCTOR TESTIFYING TO THAT LIKE WE HAD BROUGHT OUT WITH
9 DR. KELLER, THEN THE STATE SHOULD BE ALLOWED TO CALL IN THE
10 WITNESS, FOR EXAMPLE, WHO WROTE THAT NOTE. WE SHOULD BE
11 ABLE -- NOW BE ABLE TO CALL IN AS PART OF OUR CASE IN CHIEF
12 DR. KELLER TO EXPLAIN WHAT THAT NOTE MEANT, WHAT THE TUMOR
13 WAS HE SENT IT TO THE RADIOLOGIST TO GET A RESULT. WE NEED
14 TO BRING HIM IN TO TESTIFY AS TO WHAT THAT RESULT WAS. WE
15 NEED TO BRING DR. WILDING IN NOW TO TALK ABOUT HIS -- Incomprehensible.
16 THE COURT: WASN'T DR. WILEY COMING?
17 MR. MAJOR: NO, WE HAVE NO -- DID THE COURTS --
18 THE COURT: WILDING.
19 MR. MAJOR: WILDING.
20 THE COURT: WE HAD HIM LISTED.
21 MR. MAJOR: WE DID BUT BECAUSE OF THE COURT'S
22 PERSISTENCE ON WE DID NOT WANNA HAVE CUMULATIVE TESTIMONY,
23 CUMULATIVE EVIDENCE, WE DID NOT CALL HIM SIMPLY BECAUSE WE
24 DIDN'T THINK HE WAS GONNA ADD ANYTHING. NOW WE HAVE HIS
25 RECORDS COMING IN WITHOUT HAVING ANY REAL FOUNDATION AS TO,
896
1 YOU KNOW, I MEAN THE PERSON TESTIFIED --
2 THE COURT: WELL, FIRST OF ALL, YOU SAY NO
3 FOUNDATION. THE RECORDS ARE IN EVIDENCE --
4 MR. MAJOR: NO, WELL, I -- I -- AND I -- OKAY --
5 THE COURT: -- FOUNDATION IS MEANINGLESS AT THIS
6 POINT. IF THE RECORDS ARE IN EVIDENCE, WE'RE NOT TALKING
7 ABOUT FOUNDATION ANYMORE --
8 MR. MAJOR: WELL, AND I UNDERSTAND THAT, BUT WE
9 HAVE NOT NECESSARILY -- WHAT I'M GETTING AT THEN IS FOR THE
10 FOUNDATION -- I MEAN HAVING THE PERSON WHO WROTE THAT NOTE
11 COME IN AND TALK ABOUT IT. I WON'T USE THE TERM FOUNDATION.
12 THE COURT: WELL, YOU'RE -- ARE YOU SAYING THAT
13 ONLY THE PERSON -- ONLY THE PERSON WHO WROTE THE DOCUMENT --
14 MR. MAJOR: NO.
15 THE COURT: -- CAN TALK ABOUT IT?
16 MR. MAJOR: NO. I'M SAYING -- I'M NOT SAYING THAT.
17 I'M NOT OBJECTING TO THEM COMING IN. THAT'S NOT MY
18 OBJECTION.
19 THE COURT: YEAH, BUT YOU'RE SAYING NOW, OKAY, THEY
20 CAN COME IN, BUT WE CAN'T USE THEM.
21 MR. MAJOR: NO. WHAT I'M SAYING IS IF THEY COME IN
22 AND HE'S ALLOWED TO TESTIFY TO THOSE RECORDS, THE STATE HAS
23 A RIGHT TO CALL ADDITIONAL WITNESSES THAT WE DO NOT HAVE ON
24 OUR WITNESS LIST AND DID NOT SUBMIT TO THIS COURT TO DISCUSS
25 THOSE NOTES AND DISCUSS --
897
1 THE COURT: WELL, WHY ARE YOU STIPULATING TO
2 DOCUMENTS COMING INTO EVIDENCE THAT STATE WHAT THE MEDICAL
3 RECORDS ARE, YOU KNOW, AND THEN SAY, WELL, NOW WE NEED TO
4 HAVE THE WITNESS COME IN? I MEAN I DON'T KNOW, IF YOU HAVE
5 TO HAVE A WITNESS COME IN AND THERE'S A REASON TO HAVE A
6 WITNESS IF THERE'S AN ISSUE, BUT RIGHT NOW, ALL OF THOSE
7 RECORDS, THE MEDICAL RECORDS ARE IMPORTANT BECAUSE THEY SAY
8 WHAT THE CONDITIONS ARE. WE DON'T NEED A DOCTOR -- I MEAN
9 IF YOU THINK THERE'S A DOCTOR THAT'S NECESSARY TO COME IN TO
10 EXPLAIN SOMETHING IF IT NEEDS TO BE EXPLAINED, FINE.
11 OTHERWISE, THE JURY IS GOING TO GET THE MEDICAL CONDITION OF
12 ALL OF THESE PATIENTS THROUGH TWO SOURCES: LIVE WITNESSES
13 AND THE FAMILY MEMBERS THAT SAY WHAT WERE THEY LIKE, DOCTORS
14 WHO TESTIFIED WHO SAY WHAT THEY WERE LIKE, AND MEDICAL
15 RECORDS WHO SAY WHAT THEY WERE LIKE.
16 MR. MAJOR: AND I THINK WE'RE TALKING ABOUT TWO
17 SEPARATE POINTS HERE.
18 THE COURT: WELL, I THOUGHT ABOUT THAT FOR FOUR OR
19 FIVE DAYS --
20 MR. MAJOR: OKAY. WELL, WHILE I'M SAYING THIS, IF
21 WE DECIDE THAT AT THIS POINT IN TIME HAVING -- WE HAVEN'T
22 STIPULATED, FOR EXAMPLE, TO DR. WILDING'S AND DR. KELLER'S
23 MEDICAL RECORDS COMING IN. BUT THEY WERE BROUGHT -- SO
24 THOSE RECORDS COME IN, AND THAT'S FINE WITH ME. BUT I'M
25 JUST WANNA SAY WHEN WE CALL DR. KELLER TO THE STAND, WHICH
898
1 WE ARE PLANNING ON DOING -- WE'RE MAKING SUBPOENAS FOR HIM
2 RIGHT NOW -- I DON'T WANT AN OBJECTION FROM THE DEFENSE THAT
3 SAYS, HEY, HE WASN'T ON OUR WITNESS LIST, WE WEREN'T GIVEN
4 NOTIFICATION OF HIS BEING CALLED. I DON'T WANT A PROBLEM
5 WITH CUMULATIVE EVIDENCE SAYING, HEY, HE'S JUST GONNA BE
6 CUMULATIVE TO WHAT WE HAVE --
7 THE COURT: WELL, I GUESS THE QUESTION I HAVE IS,
8 IF YOU WERE GOING TO STIPULATE TO DR. KELLER AND
9 DR. WILDING'S EXHIBITS COMING IN --
10 MR. MAJOR: WE HAVEN'T STIPULATED TO THEM YET.
11 THE COURT: WELL, OKAY. I THOUGHT THAT WHAT WE
12 SAID WHEN WE HAD PRETRIAL MOTIONS -- AND I GUESS MAYBE I WAS
13 UNDER A DIFFERENT UNDERSTANDING. I WAS UNDER THE
14 UNDERSTANDING IF I TOOK TWO WEEKS TO REVIEW 25 MOTIONS IN
15 THIS CASE AND I MADE RULINGS, THAT THEY WERE GOING TO HAVE
16 SOME MEANING. AND I GUESS I CAME AWAY FROM THOSE THINGS
17 SAYING THAT WE WERE GOING TO HAVE COMPLETE MEDICAL RECORDS
18 OF THE HOSPITAL, AND I ASSUMED THAT WE WERE GONNA HAVE
19 MEDICAL RECORDS OF EVERYONE SO THAT WE COULD SAY WHAT WAS
20 THE MEDICAL CONDITION OF THE PATIENTS IN THIS CASE --
21 MR. MAJOR: THAT'S NOT THE UNDERSTANDING OF THE
22 STATE, AND THAT'S THE PROBLEM WE'RE RUNNING INTO.
23 THE COURT: OKAY. WELL, I GUESS THE POINT IS LIKE
24 RIGHT NOW, WE HAVE HAD TWO OFFERS OF EXHIBITS. LIKE AFTER
25 WE ENDED YESTERDAY, THERE WAS D-9, D-20, D-20.1 THROUGH
899
1 D-20.9 AND D-22. THIS MORNING D-8, 10, 11, AND 13, ALL
2 EXHIBITS OF PEOPLE'S MEDICAL RECORDS. AND THE ONLY RESPONSE
3 TO THAT IS WE HAVE TO LOOK THROUGH THEM.
4 MR. MAJOR: YEAH.
5 THE COURT: OKAY. WELL, IF THEY ARE THESE PEOPLE'S
6 MEDICAL RECORDS, ARE YOU GOING TO HAVE AN OBJECTION FOR THEM
7 COMING INTO EVIDENCE?
8 MR. MAJOR: IF -- WITH A CAVEAT THAT IF THERE IS
9 ADDITIONAL WITNESSES WE MAY NEED TO CALL AS A RESULT OF THE
10 MEDICAL RECORDS, THEN NO.
11 THE COURT: OKAY. WELL, I GUESS WE'LL HAVE TO DEAL
12 WITH PROBLEMS AS THEY COME UP. I CAN'T DEAL IN ADVANCE OF
13 SOMETHING. IF WHAT YOU'RE SAYING IS --
14 MR. MAJOR: WELL --
15 THE COURT: -- THAT YOU MIGHT BE CALLING THESE
16 PEOPLE TO EXPLAIN THEIR MEDICAL RECORDS, I GUESS THE
17 QUESTION IS, IF YOU KNEW THAT THE OTHER SIDE WAS GOING TO
18 INTRODUCE MEDICAL RECORDS OF THESE DOCTORS, AND LIKE WITH
19 DR. WILDING, YOU HAVE DESIGNATED A DR. WILDING. KELLER
20 ISN'T DESIGNATED --
21 MR. MAJOR: NO.
22 THE COURT: -- BUT, YOU KNOW, WILDING IS. SO IF
23 YOU WERE GOING TO LET THE -- IF YOU KNEW THAT THE DEFENSE
24 WAS GOING TO PUT MEDICAL RECORDS IN AND NOT CALL THE
25 WITNESSES, THAT'S ONE ISSUE. IF YOU THOUGHT -- IF YOU'RE
900
1 SAYING THIS IS SOME SORT OF SURPRISE THAT THESE RECORDS ARE
2 COMING IN --
3 MR. MAJOR: YOUR HONOR, WE --
4 THE COURT: -- I DON'T KNOW WHAT --
5 MR. MAJOR: THE FIRST TIME WE SAW ANY OF THE
6 MEDICAL RECORDS DEFENSE HAD OR OFFERED WAS TODAY, THEY
7 WALKED IN AND HANDED THEM. THE FIRST TIME I SAW RACHAEL
8 STUBBS' MEDICAL RECORDS, FOR EXAMPLE, WAS WHEN DEFENSE
9 COUNSEL HANDED THEM TO HER.
10 MR. STIRBA: THAT'S NOT TRUE. SHE HAD A BINDER
11 RIGHT THERE PROVIDED BY BETSY BOWMAN, SHE TESTIFIED TO IT,
12 OF HER MEDICAL FILE. THIS IS --
13 MR. MAJOR: NO, YOUR HONOR --
14 MR. STIRBA: -- THE STATE OF UTAH --
15 MR. MAJOR: -- THAT WAS NOT HER MEDICAL FILE. THAT
16 WAS THE REST HOME FILE. DIDN'T HAVE ANYTHING TO COME FROM
17 HER OFFICE. IT WAS THE REST HOME FILE.
18 THE COURT: WELL --
19 MR. MAJOR: FIRST TIME WE HEARD THAT WE HAD
20 ANYTHING FROM DR. KELLER AND DR. WILDING IS WHEN THEY HANDED
21 IT TO US YESTERDAY MORNING.
22 THE COURT: WELL, GUESS WHAT, THE FIRST TIME THAT
23 THEY GOT THE INTERVIEW OF ONE OF THE WITNESSES YESTERDAY WAS
24 THE DAY BEFORE, TOO --
25 MR. MAJOR: SURE.
901
1 THE COURT: -- I MEAN, LET ME TELL YOU, I WOULD
2 HOPE THAT ON A CASE OF THIS MAGNITUDE, AND HOW MUCH IS
3 INVOLVED AND SIX WEEKS OF EVERYONE'S TIME, THAT PEOPLE WOULD
4 BE PREPARED. AND THAT PEOPLE WILL COME INTO HERE AS MUCH AS
5 THEY CAN. NOW, WE ARE STUCK WITH THE SITUATION THAT WE'RE
6 IN, IN THAT YOU HAVE THE RECORDS OR YOU DON'T HAVE THE
7 RECORDS. BUT ALL I CAN SAY IS THAT I'M ABSOLUTELY BAFFLED
8 BY THE IDEA THAT IF ONE SIDE OR THE OTHER SUBPOENAS RECORDS
9 FROM A DOCTOR'S OFFICE OR A CARE CENTER, AND THEN -- AND
10 THEN THEY'RE -- THEY COME BACK FROM THE SUBPOENA WITH THOSE
11 RECORDS, AND THEN PEOPLE SAYING, OH, WELL, WE'RE GONNA
12 OBJECT TO THOSE RECORDS, WHEN THEY DON'T HAVE ANYTHING TO
13 OBJECT TO OTHER THAN SAYING, WE DON'T HAVE A COPY OF THEM.
14 MR. MAJOR: WELL, LET ME GIVE YOU MY -- AGAIN, LET
15 ME GIVE YOU MY CONCERN, WHAT WAS BROUGHT UP BY MR. STIRBA.
16 HE HANDED RACHEL STUBBS A SET OF RECORDS. HE REPRESENTED TO
17 THIS COURT THAT THAT WAS EVERYTHING THEY HAD RECEIVED FROM
18 THAT MEDICAL OFFICE.
19 THE COURT: CORRECT.
20 MR. MAJOR: OKAY.
21 MR. STIRBA: UH-HUH.
22 MR. MAJOR: BUT IT WASN'T --
23 THE COURT: WELL, AND THE WITNESS --
24 MR. MAY: NO.
25 THE COURT: BUT SEE, HERE'S THE POINT: HE GETS
902
1 THOSE AND HE ASKS THE WITNESS WHOSE RECORDS THEY ARE. ARE
2 THESE YOUR COMPLETE RECORDS, AND SHE SAYS, WELL, ACTUALLY,
3 THERE'S THESE OTHER THINGS BECAUSE THEY -- IT CAME FROM THE
4 DAY CARE CENTER, I GET IT, I WRITE SOMETHING ON IT, AND IT
5 GOES BACK TO THE DAY CARE CENTER.
6 NOW, WHATEVER IT WAS, RACHAEL STUBBS WAS NOT AT THE
7 PLACE WORKING --
8 MR. MAJOR: RIGHT.
9 THE COURT: -- WHERE SHE IS NOW. AND SO THAT
10 WHEN -- IN HER RECORDS, THAT'S PROBABLY ALL THAT WAS IN
11 THERE IN THAT FILE. I MEAN I DON'T -- IT IS NOT UNUSUAL TO
12 ME THAT WHENEVER YOU SUBPOENA RECORDS, AND I HAVE DONE IT AS
13 AN ATTORNEY THOUSANDS OF TIMES, THAT YOU ALWAYS FIND OUT
14 THAT THERE ARE OTHER RECORDS SOMEHOW, EVEN THOUGH THEY SAID
15 THIS IS ALL WE HAVE. THAT IS NOT UNUSUAL TO ME AND THAT'S
16 WHY YOU GIVE IT TO A WITNESS AND WITNESS SAYS, IS THIS THE
17 COMPLETE FILE? SHE SAYS NO, THERE SHOULD BE THESE 15
18 SHEETS. ALL RIGHT. LET'S PUT THESE 15 SHEETS. NOW IS THIS
19 THE COMPLETE FILE? YEAH, I THINK IT IS. SO THERE'S NOTHING
20 WRONG WITH THAT --
21 MR. MAJOR: WELL, I GUESS -- I GUESS MY PROBLEM IS
22 WE'RE GETTING OFF THE POINT. I MEAN I DON'T HAVE ANY
23 PROBLEMS WITH --
24 THE COURT: NO, I THINK -- I THINK ONE OF THE
25 POINTS THAT WE'RE DEALING WITH IS THAT I DON'T UNDERSTAND
903
1 WHY WE'RE HAVING SUCH A HASSLE OVER MEDICAL RECORDS. I
2 THINK, YOU KNOW, THAT AS SOON AS YOU CAN REVIEW THE MEDICAL
3 RECORDS, YOU KNOW, THE MEDICAL RECORDS -- I AM PRONE TO
4 ALLOW THE MEDICAL RECORDS OF THESE PATIENTS TO COME INTO
5 EVIDENCE. I MEAN IT IS THE MOST RELEVANT THING FOR BOTH
6 SIDES.
7 MR. MAJOR: WELL, YOUR HONOR, SEE, AND I'M KIND OF
8 LOST BECAUSE I'M NOT MAKING THAT OBJECTION.
9 THE COURT: OKAY. BUT WHAT YOU'RE SAYING IS THAT,
10 OKAY, SINCE WE'RE MAKING THIS, WELL, WE STARTED WITH
11 MR. STIRBA TRYING TO ASK THIS WITNESS A QUESTION ABOUT ONE
12 OF THESE MEDICAL RECORDS AND YOU OBJECTED IT TO.
13 MR. MAJOR: BASED ON THE HEARSAY RULE. BASED ON
14 THE FACT THAT THIS WITNESS -- WITH THIS WITNESS. I'M NOT
15 NECESSARILY TESTIFYING THAT THE RECORDS CAN'T COME IN AND
16 THE JURY CAN'T READ 'EM. I'M JUST SAYING WITH THIS
17 WITNESS --
18 THE COURT: OKAY. WELL, I GUESS I WILL HAVE TO
19 MAKE IT REAL CLEAR. THEN WHAT I'M SAYING IS, IF A RECORD IS
20 RECEIVED INTO EVIDENCE, A MEDICAL RECORD, AND THEN IT REFERS
21 TO A WITNESS ON THE STAND'S ACTIVITY, THAT WITNESS CAN
22 OBVIOUSLY BE QUESTIONED ABOUT A RECORD THAT'S IN EVIDENCE.
23 AND THAT'S WHAT I UNDERSTAND WE'RE DOING --
24 MR. MAJOR: OKAY. AND THAT'S IT. AND I HAVE --
25 I'M NOT OBJECTING TO THAT.
904
1 THE COURT: OKAY. WELL, THAT'S WHAT YOU WERE
2 BEFORE THE JURY WENT OUT --
3 MR. MAJOR: WELL, I WAS -- NO, I WAS --
4 THE COURT: -- OBJECT TO HIM USING THAT.
5 MR. MAJOR: BECAUSE HAD HE SAID THAT HE IS -- WAS
6 NOT FAMILIAR WITH THAT RECORD. I WANT THAT QUESTION ASKED.
7 DO YOU -- DOES THAT -- IF YOU WANT TO REFRESH HIS MEMORY,
8 I'D LIKE TO REQUEST THAT WE DON'T PUT IT ON THE OVERHEAD
9 PROJECTOR BEFORE WE GET THOSE FOUNDATION QUESTIONS RAISED.
10 WE DON'T STICK IT UP ON THERE UNTIL --
11 THE COURT: OKAY. DO YOU HAVE ANY OBJECTION TO
12 THAT, THAT YOU ASK THE QUESTION FIRST?
13 MR. STIRBA: YES, I DO. I -- THE REASON WHY I --
14 AND I DIDN'T -- I DIDN'T DO IT. BUT I DIDN'T THINK THERE
15 WAS ANY ISSUE. BUT I'M OFFERING IT. AND IF I OFFER IT,
16 IT'S BEEN RECEIVED, I'M GONNA PUT IT ON THE ELMO. AND I'M
17 ENTITLED TO DO THAT. I'M ENTITLED TO CONDUCT MY CROSS ANY
18 WAY I WANT AS LONG AS I'M IN SYNC WITH THE COURT IN TERMS OF
19 QUESTIONING, AND AS LONG AS I'M DOING IT APPROPRIATELY. AND
20 I THINK I HAVE BEEN, AND I'M ENTITLED TO USE THESE RECORDS
21 TO CROSS-EXAMINE THEIR DOCTORS. THAT'S ALL I'M DOING. AND
22 I DON'T THINK I'VE ABUSED THAT PRIVILEGE, YOUR HONOR. AND I
23 THINK I'VE BEEN CONSISTENT WITH IT. AND REALLY MY POINT IS
24 VERY SIMPLE, WE -- I CAN DO IT THE HARD WAY. I CAN GET ALL
25 THE CUSTODIANS IN HERE AND WE CAN GO THROUGH THAT DRILL.
905
1 THEN THEY'RE GONNA DO THAT. THAT'S JUST BIG WASTE. I'VE
2 TOLD THEM ALL ALONG, OFFER YOUR MEDICAL RECORDS. THEY'RE
3 IN. WE'LL OFFER OUR MEDICAL RECORDS TO THE EXTENT YOU DON'T
4 HAVE THEM. THEY'RE IN. THEN WE DEAL WITH THEM. I MEAN
5 THAT'S -- THAT'S WHAT I'VE DONE ALL ALONG. THAT'S ALL I'M
6 TRYING TO DO HERE.
7 MR. MAJOR: BUT I GUESS I DON'T WANNA WASTE THE
8 COURT'S TIME OR BE FRUSTRATED, BUT THAT'S NOT WHAT I'M
9 SAYING. I MEAN I -- I -- I LIKE WHAT THE COURT SAID IF YOU
10 CAN DO IT. MY QUESTION IS, I'M GOING TO GO OUT, I'M GOING
11 TO SUBPOENA DR. KELLER AND HE WILL BE HERE TO TESTIFY
12 HOPEFULLY MAYBE BY THE END OF THE WEEK. TO PUT HIM ON TO GO
13 OVER HIS NOTES THAT HE HAD THAT WAS INTRODUCED AND WILL BE
14 ENTER -- WILL BE STIPULATED TO I GUESS INTRODUCED FROM HIS
15 MEDICAL RECORDS.
16 THE COURT: OKAY. DO YOU ANTICIPATE THAT DR.
17 KELLER BY EXAMPLE WITH THAT MEDICAL RECORD WILL SAY, NO, I
18 DIDN'T SAY THAT HE HAD --
19 MR. MAJOR: NO.
20 THE COURT: -- WHAT I SAID IN MY WRITING ARE HIS
21 DICTATED NOTES?
22 MR. MAJOR: NO. MY ANTICIPATION WITH DR. KELLER
23 WOULD SAY I REFERRED THIS TO THE RADIOLOGIST AND RADIOLOGIST
24 CALLED BACK AND SAID THERE WAS NO TUMOR, THERE WAS NO
25 CONCERN, THERE WAS NO NOTHING HERE. THAT'S WHY THERE'S NO
906
1 FOLLOW-UP, NO AFTERWARDS SAYING WHAT IS THE RESULT OF
2 SENDING THIS TO THE RADIOLOGIST.
3 THE COURT: OKAY. AND THEN I GUESS WE'RE GONNA
4 HAVE TO ADDRESS AT SOME POINT THEN WHY WASN'T THAT PERSON
5 PUT ON THE WITNESS LIST AS A WITNESS THAT YOU KNEW THAT --
6 MR. MAJOR: WE DIDN'T RECEIVE THE MEDICAL RECORDS
7 FROM THE DEFENDANTS UNTIL YESTERDAY MORNING.
8 MR. STIRBA: YOUR HONOR, RESPECTFULLY, THESE ARE
9 DR. WILDING'S RECORDS. KELLER'S IN THERE BECAUSE HE'S THE
10 PARTNER. WE SUBPOENAED THEM FROM DR. WILDING. HE'S THEIR
11 WITNESS. NOW --
12 MR. MAJOR: RIGHT.
13 MR. STIRBA: NOW GRANTED, GRANTED, MAYBE THEY
14 DIDN'T HAVE THEM UNTIL JUST YESTERDAY MORNING, BUT MAYBE
15 THEY SHOULD HAVE HAD THEM AND MAYBE IT SORT OF GOES WITHOUT
16 SAYING, IF YOU'RE GONNA NAME A DOC ON YOUR WITNESS LIST,
17 THAT YOU GET THE DOCTOR'S FILE, WHICH IS WHAT WE DID, AND
18 YOU REVIEW IT AND YOU HAVE IT. THERE'S NOTHING ALL THAT
19 MUCH OF A SURPRISE ABOUT THIS. IT'S JUST LIKE I APPRECIATE
20 THE FACT THAT INVESTIGATORS CONDUCT INVESTIGATIONS. THEY
21 COME UP WITH ADDITIONAL INTERVIEWS. AS LONG AS I HAVE A
22 REASONABLE TIME TO DEAL WITH THEM ON CROSS-EXAMINATION,
23 THAT'S FINE. THAT HAPPENS. AND THAT'S ALL I'M SAYING. YOU
24 TO HAVE ANTICIPATE CERTAIN THINGS AND THAT'S WHAT I'D SAY
25 ABOUT WILDING.
907
1 MR. MAJOR: WELL, JUST ON THAT, JUST FOR THE
2 PROFFER FOR THE RECORD, WE TALKED TO DR. WILDING. HE
3 INDICATED TO US PERSONALLY, I PERSONALLY INTERVIEWED
4 DR. WILDING. INDICATED HE HAD NO CONTACT WITH MISS
5 ANDERSON. THAT HE WAS CALLED IN SIMPLY BECAUSE HE WAS A
6 DOCTOR AT THE REST HOME. HE SIGNED OFF ON HER COMING INTO
7 THE REST HOME. THAT'S THE LAST TIME HE HAD ANY CONTACT WITH
8 HER. AND I'M JUST SAYING, WE CAN DO IT. WE CAN BRING THESE
9 DOCTORS IN ON -- IF WE NEED TO DO THAT. I WAS JUST THINKING
10 IT'S MORE IN LINE, MORE CONVENIENT NOW THAT WE'VE GOT THIS
11 TO THE JURY, WE DON'T HAVE TO SIT HERE AND LINE UP A WHOLE
12 BUNCH OF REBUTTAL. AND THAT'S ONLY MY OBJECTION TO SOME OF
13 THESE MEDICAL RECORDS COMING IN.
14 THE COURT: WELL, I CAN TELL YOU ANOTHER THING
15 BASED ON MY OWN EXPERIENCE THAT IF YOU GET A DOCTOR AND IT'S
16 FIVE YEARS AGO OR IF YOU GET DOCTOR AND IT'S THREE DAYS AGO,
17 YOU ASK THE DOCTOR ABOUT A PATIENT, THE DOCTOR WILL LOOK AT
18 HIS CHART, AND HE'LL READ IT AND HE'LL BASICALLY TELL YOU
19 WHAT'S IN THE CHART. AND SO IF WE'RE GONNA HAVE THE CHARTS
20 IN AS EVIDENCE, WE DON'T NEED -- THEN YOU CAN USE THOSE
21 CHARTS IN CLOSING ARGUMENT. YOU CAN USE THOSE CHARTS WITH
22 WITNESSES. AND YOU CAN EMPHASIZE WHAT YOU WANNA EMPHASIZE
23 IN THE RECORDS. OR IF YOU DON'T WANNA EMPHASIZE 'EM, YOU
24 DON'T EMPHASIZE 'EM. I --
25 MR. MAJOR: I -- I --
908
1 THE COURT: -- I DON'T KNOW WITH SOME PEOPLE, WITH
2 SOME DOCTORS, I DON'T KNOW IF CALLING 40 DOCTORS READING
3 THEIR RECORDS, I MEAN -- AND I'M NOT SAYING ANYTHING ABOUT
4 THIS CURRENT DOCTOR. BUT THIS CURRENT DOCTOR, THESE ARE
5 FROM FIVE YEARS AGO, HE'S LOOKING AT HIS RECORDS AND HE
6 SAYS, HEY, THIS IS WHAT HAPPENED. WHATEVER HAPPENED IS WHAT
7 I SAID FIVE YEARS AGO.
8 MR. MAJOR: WELL, AND I UNDERSTAND THAT. MY ONLY
9 CONCERN IS WE'D AT LEAST LIKE TO HAVE AN OPPORTUN -- DR.
10 KELLEY COMES BACK AND SAYS, HEY, THIS IS ADDITIONAL
11 INFORMATION THAT'S NOT IN THIS FILE, WE DON'T KNOW THAT, WE
12 HAVEN'T HAD --
13 THE COURT: WELL, IF THERE'S -- IF THERE'S SOME
14 REBUTTAL, YOU KNOW, WE'LL DEAL WITH IT. I GUESS THE THING
15 THAT I'M GOING TO SAY IS THAT, YOU KNOW, ONCE -- ONCE THE
16 MEDICAL RECORDS ARE PROVIDED AND PEOPLE HAVE A CHANCE TO
17 REVIEW THEM, AND I UNDERSTAND EVERYONE IS WORKING AS WE'RE
18 GOING ALONG IN THIS CASE, AND I CAN TELL YOU, YOU'RE NOT THE
19 ONLY ONES AT NIGHT THAT ARE READING STUFF. THAT WHAT YOU DO
20 IS YOU PROVIDE 'EM TO EACH OTHER, BUT IF THEY'RE -- IF THEY
21 ARE MEDICAL RECORDS ABOUT THESE PATIENTS PRIOR TO THE TIME
22 THAT THEY GO TO THE HOSPITAL AND DURING THE HOSPITAL, WHICH
23 WE'VE ALREADY STIPULATED TO, THOSE RECORDS ARE COMING IN,
24 UNLESS THERE IS SOME BIG REASON NOT TO HAVE THEM ADMITTED,
25 I'M JUST TELLING YOU UP FRONT, I'M GONNA ADMIT MEDICAL
909
1 RECORDS OF THESE PATIENTS BECAUSE THAT'S THE MOST RELEVANT.
2 THEIR MEDICAL CONDITION AS THEY ENTERED -- PRIOR TO AND AS
3 THEY ENTERED THIS HOSPITAL, YOU KNOW, AND THEIR MEDICAL
4 HISTORY IS EXTREMELY IMPORTANT. WHY --
5 MR. MAJOR: WE UNDERSTAND THAT.
6 THE COURT: WHY DID THEY DIE. THAT IS --
7 MR. MAJOR: WE HAVE --
8 THE COURT: -- THE QUESTION IN THIS CASE. Here, here.
9 MR. MAJOR: WE'RE NOT OBJECTING TO THAT.
10 THE COURT: ALL RIGHT. WELL, DO WE HAVE ANYTHING
11 ELSE TO DISCUSS BEFORE THE -- OKAY. WHAT I WANNA DO IS I
12 WANNA GET THIS DOCTOR DONE BEFORE LUNCH. AND SO LET'S GET
13 HIM DONE. IF THERE'S ANYTHING ELSE THAT WE NEED TO DISCUSS
14 AFTER, WE CAN DISCUSS WHEN THE JURY'S GONE TO LUNCH. OKAY.
15 (THE JURY RETURNS TO THE COURTROOM.)
16 THE COURT: OKAY. PLEASE BE SEATED. THE RECORD
17 SHOULD REFLECT THE JURY HAS RETURNED. LADIES AND GENTLEMEN,
18 WHAT WE ARE GOING TO DO IS WE ARE GOING TO TRY -- WE'LL
19 FINISH WITH THIS WITNESS BEFORE WE TAKE LUNCH, AND IF IT'S A
20 FEW MINUTES PAST 12:00, IT MAY BE A FEW MINUTES PAST 12:00,
21 BUT IT WON'T BE HOPEFULLY TOO MUCH LONGER. THANK YOU FOR
22 YOUR PATIENCE. GO AHEAD.
23 MR. STIRBA: THANK YOU, YOUR HONOR. MAY I
24 APPROACH?
25 THE COURT: YES.
910
1 Q. (BY MR. STIRBA) DOCTOR, I SHOWED YOU DURING OUR BREAK
2 EXHIBIT -- DEFENSE EXHIBIT 6. I'LL HAND THAT BACK TO YOU.
3 AND THOSE ARE RECORDS THAT WERE PROVIDED BY YOUR OFFICE
4 PURSUANT TO A SUBPOENA. YOU'VE HAD A CHANCE TO REVIEW
5 THOSE, HAVE YOU NOT?
6 A. YES.
7 Q. AND DO THEY APPEAR TO BE THE SET OF RECORDS FROM YOUR
8 OFFICE CONCERNING YOUR CARE AND TREATMENT OF MR. ALLDREDGE?
9 A. YES.
10 MR. STIRBA: WE'D OFFER D-6, YOUR HONOR.
11 THE COURT: ANY OBJECTION TO D. -- DEFENDANT'S
12 EXHIBIT 6?
13 MR. MAJOR: NO OBJECTION AT THIS TIME, YOUR HONOR.
14 THE COURT: OKAY. IT'S RECEIVED.
15 Q. (BY MR. STIRBA) NOW, DOCTOR, WE WERE -- BEFORE WE
16 BROKE I WAS ASKING YOU ABOUT A SITUATION ON 1/4/96 AT THE
17 NURSING HOME --
18 MR. MAJOR: WELL, YOUR HONOR, I DON'T THINK HE'S
19 ASKED THAT QUESTION YET THAT WE DISCUSSED BEFORE WE COME IN
20 HERE WHEN WE -- WHETHER THIS WITNESS IS FAMILIAR WITH THAT.
21 MR. STIRBA: I WILL -- I WILL REPHRASE, YOUR HONOR.
22 I -- I'M SORRY.
23 MR. MAJOR: ONCE AGAIN, IT'S OUR QUES -- OUR
24 OBJECTION --
25 MS. BARLOW: STEVE.
911
1 MR. MAJOR: NEVER MIND, YOUR HONOR.
2 THE COURT: OKAY. GO AHEAD.
3 Q. (BY MR. STIRBA) NOW, DOCTOR, I WANNA DIRECT YOUR
4 ATTENTION --
5 IN FACT, WHERE IS THE -- DO YOU HAVE THE EXHIBIT P-11?
6 THE COURT: NO. THAT IS THE BINDER.
7 MR. STIRBA: THE BINDER, BLACK BINDER.
8 THE WITNESS: THIS ONE HERE?
9 Q. (BY MR. STIRBA) OH, YES. THANK YOU, DOCTOR. IF YOU
10 WOULD TURN TO THE NURSE NOTE ENTRY FOR 1/4, MAYBE YOU CAN
11 FOLLOW. OKAY. YOU HAVE IT. THANK YOU. NOW, THAT ENTRY --
12 AND I'LL DIRECT YOUR ATTENTION DOWN TO THE BOTTOM, TOWARDS
13 THE BOTTOM OF THE 1/4/96 ENTRY, AND I BELIEVE IT STATES, AT
14 2050 THERE'S A LINE LOOKS LIKE 2050, DO YOU SEE THAT? IT
15 SAYS PATIENT TO BED. INSTANTLY. AND THEN IT SAYS 2130,
16 FOUND ON FLOOR IN ROOM.
17 DO YOU SEE WHERE I'M READING FROM?
18 A. UH-HUH.
19 Q. AND IT GOES ON TO SAY, ONE-HALF SIDE RAIL -- IT LOOKS
20 LIKES C.O., PLAN -- I CAN'T REALLY READ THAT. AND THEN IT
21 HAS LEFT KNEE RED. NO -- AND I CAN'T READ THAT. HIT
22 HEAD -- LOOKS LIKE HIT HEAD.
23 A. HOW ABOUT, NO APPARENT HIT TO HEAD.
24 Q. OKAY. THANK YOU. THANK YOU. I APPRECIATE THAT,
25 DOCTOR. AND THEN IT SAID -- LOOKS LIKE ASSISTANT, AND THEN
912
1 ASSISTANT, AND THEN IT HAS ARROW UP, AND IT HAS THAT WORD
2 ATAXIC.
3 DO YOU SEE THAT?
4 A. UH-HUH.
5 Q. AND THEN IT HAS CIRCLED R. RIGHT, SLURRED SPEECH, AND
6 THEN IT HAS -- LOOKS LIKE PLACING IN AIR.
7 DID I READ THAT CORRECTLY? AND THEN IT HAS B. SLASH B.
8 BLOOD PRESSURE AND SOME READINGS.
9 NOW, THAT APPEARS TO DESCRIBE FOR THE NURSES IS -- IS
10 DESCRIBING A FALL, IS THAT TRUE?
11 A. I MEAN IT SAYS, PATIENT WAS FOUND ON THE FLOOR. HOWEVER
12 HE GOT TO THE FLOOR IS HOWEVER HE GOT TO THE FLOOR.
13 Q. OKAY. AND THAT'S -- I APPRECIATE THAT. AND WE HAVE HER
14 CHARACTERIZATION OF AN ASSESSMENT OF ATAXIC RIGHT. DO YOU
15 SEE THAT?
16 A. CORRECT.
17 Q. AND HER ASSESSMENT OF SLURRED SPEECH, DO YOU SEE THAT?
18 A. UH-HUH.
19 Q. AND THEN IT SAYS, DR. CUNNINGHAM CALLED. CORRECT?
20 A. UH-HUH, UH-HUH.
21 Q. NOW, DO YOU SEE THAT -- DO YOU RECOLLECT HAVING ANY
22 INTERVENTION IN THE CARE AND TREATMENT OF MR. ALLDREDGE AS A
23 RESULT OF THAT FALL, EVENT, OR WHATEVER WAS OBSERVED BY THE
24 NURSE ON THE 4TH OF JANUARY?
25 A. I DON'T REMEMBER ANY OF THIS.
913
1 Q. NOW, THE NOTE GOES ON --
2 MR. MAJOR: WELL, YOUR HONOR, I GUESS WE HAVE TO
3 JUST INDICATE WHERE WE'RE GOING. HE'S TESTIFIED HE DOES NOT
4 REMEMBER ANY OF THIS. SO I GUESS I DON'T SEE HIS RELEVANCY
5 OR HIS ABILITY TO TESTIFY TO ANY OF THESE OTHER NOTES IF HE
6 DOESN'T REMEMBER ANY OF THIS.
7 MR. STIRBA: WELL --
8 THE COURT: WELL, JUST ASK THE NEXT QUESTION AND
9 LET'S --
10 Q. (BY MR. STIRBA) THE NOTE GOES ON AT THE TOP ON 1/4,
11 DR. CUNNINGHAM WIFE CALLED. TO WATCH HIM THROUGH NIGHT.
12 AND THEN THERE'S A SIGNATURE FOR AN R.N. OR AT LEAST A --
13 MAYBE NOT AN R.N. BUT A SIGNATURE. DO YOU SEE THAT? NOW,
14 WERE THERE -- DO YOU REMEMBER AN EVENT WHERE YOUR WIFE
15 RESPONDED TO A CALL TO YOU CONCERNING A FALL OF
16 MR. ALLDREDGE?
17 A. NO.
18 Q. IS -- IS YOUR --
19 A. THAT WOULD BE UNBELIEVABLY UNCHARACTERISTIC FOR MY WIFE
20 TO GIVE A MEDICAL ORDER TO A NURSE CALLING ABOUT A PATIENT.
21 THAT -- THAT'S WAY OFF BASE. I DON'T KNOW WHAT THIS NOTE'S
22 ABOUT. I DON'T HAVE ANY RECOLLECTION OF IT. BUT --
23 Q. AND --
24 A. -- THAT'S MY STATEMENT ABOUT THAT.
25 Q. AND YOU'RE SAYING THAT BECAUSE YOUR WIFE I ASSUME IS NOT
914
1 MEDICALLY TRAINED?
2 A. I'M SAYING BECAUSE MY WIFE HAS NEVER THAT I'M AWARE OF
3 NOR WOULD I EXPECT HER TO GIVE ANY MEDICAL INFORMATION OVER
4 THE PHONE ABOUT A PATIENT OF MINE, PERIOD. SO I DON'T
5 UNDERSTAND THE NOTE.
6 MR. STIRBA: OKAY. THAT'S ALL I HAVE, YOUR HONOR.
7 THANK YOU.
8 THE COURT: OKAY. ANY REDIRECT?
9 MR. MAJOR: YES, YOUR HONOR.
10 REDIRECT EXAMINATION
11 BY MR. MAJOR:
12 Q. DOCTOR, WHEN DID YOU -- WHEN WAS THE LAST TIME THAT YOU
13 SAW ENNIS ALLDREDGE?
14 A. JANUARY 4TH, 1996.
15 Q. WOULD THAT HAVE BEEN AFTER THIS INCIDENT WE TALKED ABOUT
16 IN THE NURSES' NOTES? YOU DON'T -- YOU DON'T -- YOU DON'T
17 EVEN KNOW --
18 A. WE'VE -- WELL, IT WAS AFTER THE REPORTED TWO FALLS ON
19 THE 29TH AND 31ST OF -- OF DECEMBER. IT WOULD HAVE BEEN
20 BEFORE THE DISCUSSION WE JUST HELD ABOUT IN THIS RECORD.
21 Q. OKAY. NOW, WHEN YOU TALKED -- COUPLE THINGS REAL QUICK
22 ON YOUR -- ON YOUR TESTIMONY. TALKED ABOUT FACT THAT
23 SLURRED SPEECH, PROBLEMS WITH WALKING, THAT THAT COULD BE --
24 INDICATE A PROBLEM WITH ONSET OF A STROKE, IS THAT CORRECT?
25 I'D LIKE YOU TO ELABORATE A LITTLE BIT ON YOUR --
915
1 A. THOSE SYMPTOMS ARE NONSPECIFIC. THEY CAN INDICATE A
2 STROKE, BUT THEY ALSO ACCOMPANY OTHER THINGS SUCH AS
3 DEMENTIA. ANYTHING INVOLVING THE BRAIN CAN CAUSE
4 NEUROLOGICAL SYMPTOMS SUCH AS THAT.
5 Q. ALZHEIMER CAN CAUSE THAT, DEMENTIA CAN CAUSE SLURRED
6 SPEECH.
7 A. YES.
8 Q. CAN OLD AGE ITSELF?
9 A. OLD AGE ITSELF? NO.
10 Q. WHAT ABOUT THE WALKING PROBLEM?
11 A. THE DIFFICULTY WITH GAIT?
12 Q. UH-HUH.
13 A. YES. IT CAN BE CAUSED BY A VARIETY OF THINGS.
14 Q. IS IT UNUSUAL FOR AN INDIVIDUAL AGE OF MR. ALLDREDGE TO
15 HAVE WALKING PROBLEMS, GAIT PROBLEMS?
16 A. NO.
17 Q. NOW, YOU INDICATED JUST BRIEFLY WHEN WE TALKED ABOUT
18 THESE SEDATIVE THAT YOU WERE DOING, THE PSYCHOTROPIC DRUGS
19 THAT YOU WERE GIVING HIM, WHAT'S YOUR UNDERSTANDING WHEN YOU
20 TALK ABOUT SEDATION, WHAT'S YOUR UNDERSTANDING OF SEDATION?
21 I MEAN TO ME, SEDATED MEANS SOUND ASLEEP, BUT, WOULD YOU --
22 A. I WAS TRYING TO CALM THIS GENTLEMAN DOWN. HE WAS
23 ABUSING RESIDENTS AT THE NURSING HOME. HE WAS A DANGER TO
24 THE RESIDENTS OF THE NURSING HOME. HE PUNCHED AN ATTENDANT
25 IN THE STOMACH ON JANUARY 8TH. HE THREW THINGS ALL OVER THE
916
1 TABLE ON THE 8TH. I WAS TRYING TO CALM THIS GENTLEMAN DOWN
2 SO HE WOULDN'T DO HIMSELF ANY FURTHER HARM NOR ANYONE ELSE
3 IN THE NURSING HOME HARM. Dr. Weitzel had the same objective.
4 Q. ARE YOU FAMILIAR WITH DEALING WITH THIS WITH THE TERM OF
5 CHEMICAL RESTRAINT?
6 A. SURE.
7 Q. WHAT DOES THAT MEAN?
8 A. THAT MEANS USING MEDICATION TO CALM SOMEONE DOWN RATHER
9 THAN PHYSICAL RESTRAINTS SUCH HAS BELTS OR OTHER MEANS OF
10 PHYSICALLY RESTRAINING A PATIENT.
11 Q. DID YOU EVER CONSIDER USING THE SEDATIVE DRUGS TO THE
12 EXTENT THAT MR. ALLDREDGE WOULD HAVE BEEN BEDRIDDEN?
13 A. WOULD I HAVE WANTED -- NO, I WOULD -- NO. BUT AGAIN,
14 YOU'RE NEVER QUITE SURE THE RESPONSE YOU'RE GONNA GET WITH
15 THESE MEDICATIONS, SO YOU START WITH A LOWER DOSE AND YOU
16 TITRATE THE DOSE UPWARD AS MUCH AS YOU CAN TO CALM THEIR
17 BEHAVIOR, AND HOPEFULLY AVOID SEDATING SOMEONE TO THE POINT
18 WHERE THEY'RE BEDRIDDEN.
19 Q. AND AS YOU'RE GIVING THESE DRUGS AND CONCERNED ABOUT THE
20 SEDATION, WHAT WERE SOME OF THE SIGNS YOU LOOK FOR THAT
21 THEY'RE OVERSEDATED?
22 A. THEIR -- THEIR LEVEL OF RESPONSIVENESS DECLINES.
23 Q. OKAY. NOW, IF YOU DISCONTINUED THE INSULIN TO MR.
24 ALLDREDGE, WHAT WOULD HAPPEN?
25 A. BLOOD SUGARS WOULD RISE. PROBABLY NOTHING IN THE SHORT
917
1 TERM.
2 Q. AND AFTER YOU DISCONTINUED THE HYPOTHYROID TREATMENT?
3 A. WHAT HAPPENED AFTER DISCONTINUING THAT?
4 Q. UH-HUH.
5 A. OVER A PERIOD OF A FEW WEEKS, NOT MUCH. HE'S --
6 GRADUALLY HE WOULD BECOME LETHARGIC. HE WOULD HAVE CHANGES
7 IN BEHAVIOR. HE WOULD HAVE CHANGES IN -- IN METABOLISM.
8 Q. AND ON THE VISIT YOU GAVE HIM ON JANUARY 4TH, DID YOU
9 SEE ANYTHING THAT INDICATED TO YOU THAT THIS PATIENT HAD A
10 STROKE OR WAS THE ONSET OF A STROKE?
11 A. THERE'S NO RECORD IN -- THERE'S NO INFORMATION IN MY
12 RECORD THAT SUGGESTS THAT HE HAD ANY MOTOR WEAKNESS, THAT HE
13 HAD ARM OR LEG WEAKNESS, FACIAL WEAKNESS, WHICH IS
14 INDICATIVE OF A STROKE, SO I DIDN'T SEE ANY MOTOR SIGNS TO
15 SUGGEST A STROKE. BIGGEST DIFFERENCE ON JANUARY 4TH WAS HE
16 WAS -- HIS MENTATION WAS -- WAS WORSE. HE WAS MORE
17 CONFUSED. Indicative of stroke.
18 Q. HAD HE RECEIVED ANY INJURIES, PHYSICAL INJURIES FROM THE
19 FALLS THAT WERE NOTED IN ANY OF THE RECORDS? THAT YOU --
20 A. I HAVEN'T LOOKED AT THE NURSING HOME RECORDS TO --
21 THEY'VE JUST BEEN SHOWN TO ME TODAY. THE ONLY RECORD I HAVE
22 IN MY OFFICE NOTES WAS FROM JANUARY 3RD WHERE I -- IT WAS
23 REPORTED THAT HE HAD FALLEN ON TWO PREVIOUS DAYS AND THAT
24 THERE WERE NO INJURIES. AND THAT WOULD HAVE BEEN REPORTED
25 BY THE NURSING HOME TO MY NURSE IN THE OFFICE.
918
1 Q. GIVEN -- DO YOU KNOW WHAT DATE MR. ELLDREDGE -- OR
2 ALLDREDGE WENT INTO THE GEROPSYCH UNIT?
3 A. I BELIEVE IT WAS --
4 Q. IF I WERE TO REPRESENT --
5 A. I THINK -- WELL, I'VE GOT A NOTE FROM JANUARY 9TH THAT
6 SAYS, CURRENT LABS AND NOTES SENT TO DR. WEITZEL FOR
7 ADMISSION TOMORROW. SO THAT WOULD HAVE BEEN JANUARY 10.
8 Q. AND ARE YOU AWARE OF THE DATE HE DIED?
9 A. NO.
10 Q. IF I WERE TO REPRESENT TO YOU HE PASSED ON JANUARY 14,
11 WOULD THAT RING BELL TO YOU AT ALL?
12 A. NO.
13 MR. STIRBA: YOUR HONOR, HE HAS NO RECOLLECTION OF
14 THAT.
15 Q. (BY MR. MAJOR) WAS THERE ANYTHING IN YOUR OBSERVATION,
16 ANYTHING IN ANY OF YOUR MEDICAL RECORDS THAT WOULD INDICATE
17 TO YOU THAT MR. ALLDREDGE WOULD HAVE A PROBLEM THAT WOULD
18 HAVE CAUSED HIM TO DIE WITHIN FOUR DAYS?
19 MR. STIRBA: YOUR HONOR, I'M GONNA OBJECT. BEYOND
20 THE SCOPE.
21 THE COURT: SUSTAINED.
22 MR. MAJOR: THANK YOU, YOUR HONOR. WE HAVE NO
23 FURTHER QUESTIONS.
24 RECROSS-EXAMINATION
25 BY MR. STIRBA:
919
1 Q. DOCTOR, THE VISIT ON THE 4TH WITH MR. ALLDREDGE, I
2 ASSUME THAT WOULD HAVE BEEN DURING YOUR NORMAL BUSINESS
3 HOURS IN THE OFFICE?
4 A. RIGHT.
5 Q. IN OTHER WORDS, IT WOULDN'T HAVE BEEN IN THE EVENING OR
6 AT NIGHT, IS THAT RIGHT?
7 A. RIGHT.
8 Q. AND YOUR OFFICE HOURS WOULD GENERALLY BE, LET'S SAY,
9 8:00 O'CLOCK TO 5:00 OR SOMETHING LIKE THAT?
10 A. RIGHT.
11 Q. AND IT'S TRUE, IS IT NOT, YOU WERE ASKED ABOUT THE
12 DISCONTINUATION OF INSULIN. YOU SAID IN THE SHORT TERM,
13 NOTHING WOULD HAPPEN TO MR. ALLDREDGE. BUT IN FACT, IN THE
14 LONG TERM, IF HE DIDN'T GET HIS INSULIN, HE WOULD DIE, TRUE?
15 A. ULTIMATELY, YES.
16 Q. IN OTHER WORDS, YOU ARE WELL AWARE OF WHAT IS CALLED THE
17 DIABETIC COMA?
18 A. YEAH.
19 Q. AND IT'S TRUE, IS IT NOT, THAT GIVEN MR. ALLDREDGE'S
20 DIABETIC CONDITION, IF HE DIDN'T HAVE HIS MEDICATION TO
21 CONTROL HIS GLUCOSE, EVENTUALLY HE WOULD LAPSE INTO A
22 DIABETIC COMA AND HE WOULD DIE.
23 A. POSSIBLY.
24 Q. NOW, JUST ONE OTHER THING. WE HAVE THAT ENTRY FROM YOUR
25 RECORDS ON THE 8TH. AND IT APPEARS TO BE A PHONE
920
1 CONVERSATION THAT YOU HAD WITH THE NURSING HOME.
2 A. UH-HUH.
3 Q. AND SO YOU HAD THE EXAMINATION AND THE ACTUAL
4 OBSERVATION EXAMINATION ON THE 4TH, AND THEN YOU HAD A
5 SUBSEQUENT TELEPHONE CONVERSATION CONCERNING MR. ALLDREDGE
6 FOR WHICH YOU MADE A MEDICATION CHANGE ON THE 8TH, IS THAT
7 TRUE?
8 A. CORRECT.
9 Q. AND THAT'S WHERE IT INDICATES YOU INCREASED THE
10 RISPERDAL AND THEN FOR IMMEDIATE ATTENTION, YOU GAVE HIM
11 3 MILLIGRAMS OF I.M. ATIVAN.
12 A. CORRECT.
13 Q. AND ATIVAN IS ALSO A SEDATING MEDICATION, IS IT NOT?
14 A. CORRECT.
15 Q. IT ONCE AGAIN WAS GIVEN TO TRY TO CONTROL HIS BEHAVIOR,
16 TRUE?
17 A. TRUE.
18 MR. STIRBA: OKAY. THAT'S ALL I HAVE. THANK YOU.
19 THE COURT: ANYTHING FURTHER OF THIS WITNESS?
20 MR. MAJOR: NOTHING, YOUR HONOR.
21 THE COURT: MAY HE BE EXCUSED?
22 MR. MAJOR: HE MAY.
23 THE COURT: OKAY. THANK YOU. OKAY. LADIES AND
24 GENTLEMEN, WE'LL TAKE OUR LUNCH BREAK RIGHT NOW.
25 (THE COURT ADMONISHED THE JURY, THE JURY
921
1 LEFT THE COURTROOM. THE COURT AND COUNSEL
2 HAD A BRIEF SCHEDULING CONFERENCE, THEN
3 RECESSED FOR LUNCH.)
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
922
1 (WHEREUPON, THE AFTERNOON SESSION BEGINS.)
2 THE COURT: BEFORE WE BEGIN, I THINK I NEED TO JUST
3 REMIND ALL THE ATTORNEYS AND EVERYONE ELSE THAT IN ORDER TO
4 HAVE A RECORD TAKEN WE NEED TO HAVE -- FOR THIS CASE OR FOR
5 ANY CASE -- IT'S VERY IMPORTANT THAT WE DON'T TALK AT THE
6 SAME TIME IF SOMEBODY ELSE IS SPEAKING. THIS CAN GO WITH
7 THE WITNESSES OR WE HAVE A WITNESS AND AN ATTORNEY
8 INTERVIEWING OR QUESTIONING THE WITNESS, SOMETIMES WE'RE
9 DOING IT AT THE SAME TIME.
10 SECONDLY, SOMETIMES WHEN I'M SPEAKING TO YOU OR WE'RE
11 DISCUSSING THINGS, WE'VE BEEN SPEAKING SOMETIMES AT THE SAME
12 TIME. SO WHAT I WOULD SUGGEST IS JUST LEAVE A LITTLE PAUSE
13 BETWEEN QUESTION AND ANSWER, BETWEEN STATEMENT AND ANY
14 STATEMENT I MAKE. SO I THINK IT'S JUST IMPORTANT THAT WE
15 KEEP A GOOD RECORD.
16 THE OTHER THING THAT WE MIGHT LET EVERYBODY KNOW, TOO,
17 IS JUST SPEAK NORMAL SPEECH SPEED. THE FASTER WE GET THE
18 HARDER IT IS I THINK FOR THE COURT REPORTER. AND ONCE THE
19 COURT REPORTER EXPIRES HERE, I CAN'T DO IT. SO IF WE CAN
20 JUST REMEMBER THAT.
21 WOULD THE STATE LIKE TO CALL ITS NEXT WITNESS?
22 MR. MAJOR: WE WOULD CALL VONDA ALLDREDGE TO THE
23 STAND.
24 VONDA ALLDREDGE,
25 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
923
1 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
2 DIRECT EXAMINATION
3 BY MR. MAJOR:
4 Q. MA'AM, WOULD YOU STATE YOUR NAME FOR THE RECORD?
5 A. VONDA ALLDREDGE.
6 Q. WOULD YOU SPELL YOUR LAST NAME FOR THE RECORD?
7 A. A-L-L-D-R-E-D-G-E.
8 Q. AND MISS ALLDREDGE, WHAT IS YOUR RELATIONSHIP OR WAS THE
9 RELATIONSHIP TO ENNIS ALLDREDGE?
10 A. HE WAS MY HUSBAND.
11 Q. LET ME SHOW YOU WHAT'S BEEN MARKED FOR IDENTIFICATION AS
12 PLAINTIFF'S EXHIBIT NUMBER 12 AND ASK YOU, DO YOU RECOGNIZE
13 THAT?
14 A. YES.
15 Q. AND WHAT IS THAT?
16 A. IT'S MY HUSBAND, ENNIS ALLDREDGE.
17 MR. MAJOR: WE WOULD MOVE FOR ADMISSION OF
18 PLAINTIFF'S EXHIBIT 12.
19 MR. STIRBA: YOUR HONOR, MAY I RESERVE UNTIL
20 CROSS-EXAMINATION?
21 THE COURT: YES.
22 Q. (BY MR. MAJOR) MISS ALLDREDGE, WHEN DID YOU FIRST MEET
23 ENNIS?
24 THE COURT: IS IT EENIS OR ENNIS?
25 THE WITNESS: ENNIS.
924
1 Q. (BY MR. MAJOR) WHEN DID YOU FIRST MEET ENNIS?
2 A. OH, ABOUT THE FIRST OF JUNE OF 1989, SOMEWHERE IN THAT.
3 MR. MAJOR: IS THE JURY CAPABLE OF HEARING HER? IS
4 SHE SPEAKING LOUD ENOUGH?
5 Q. (BY MR. MAJOR) AND WHEN DID YOU GET MARRIED?
6 A. TWENTY-EIGHTH OF JULY OF 1989.
7 Q. AND WHERE WERE YOU LIVING AT THE TIME?
8 A. CLEARFIELD, UTAH.
9 Q. HOW LONG DID YOU LIVE IN CLEARFIELD?
10 A. TWO YEARS.
11 Q. AND FROM CLEARFIELD, WHERE DID YOU GO?
12 A. BEFORE CLEARFIELD?
13 Q. NO, AFTER CLEARFIELD.
14 A. TO OAK CITY.
15 Q. WHERE IS THAT LOCATED AT?
16 A. ABOUT 45 MILES FROM NEPHI, SOUTHWEST OF NEPHI.
17 Q. AND HOW LONG DID YOU LIVE DOWN THERE?
18 A. ABOUT SIX AND A HALF YEARS.
19 Q. AND AFTER YOU LIVED THERE, WHERE DID YOU GO?
20 A. TO MILVILLE, UTAH.
21 Q. IS THAT UP BY LOGAN?
22 A. YES.
23 Q. AND I WOULD LIKE TO RECALL YOUR ATTENTION BACK TO THE
24 TIME THAT YOU WERE LIVING DOWN BY NEPHI. WAS ANYONE LIVING
25 WITH YOU AT THE TIME OTHER THAN ENNIS AND YOURSELF?
925
1 A. NO.
2 Q. AND DURING THAT PERIOD OF TIME, CAN YOU DESCRIBE WHAT
3 ENNIS' GENERAL HEALTH WAS?
4 A. WELL, WE DID PRETTY GOOD. HE HAD AN ORCHARD. WE -- I
5 WOULD GO WITH HIM ON THE FOUR-WHEELER OUT TO THE ORCHARD TO
6 TAKE CARE OF THE ORCHARD. HE SPRAYED AND TOOK CARE OF IT.
7 WEEDED IT AND TOOK CARE OF THE ORCHARD, WATERED. IT WAS A
8 BIG ORCHARD. GREW A GARDEN.
9 Q. AND SO FAIRLY HARD LABOR, I GUESS YOU'D SAY?
10 A. RIGHT.
11 Q. AND FOR HOW LONG DID YOU DO THIS?
12 A. I THINK HE GAVE UP THE ORCHARD IN '93, SOMETHING LIKE
13 THAT. I DON'T REMEMBER RIGHT EXACTLY.
14 Q. AND DURING THIS PERIOD OF TIME, WHAT WAS ENNIS' GENERAL
15 HEALTH?
16 A. WELL, IT WAS GOOD THEN. OF COURSE HE DID HAVE DIABETES
17 AT THE TIME.
18 Q. DO YOU THINK -- DO YOU KNOW HOW LONG HE HAD DIABETES?
19 A. PROBABLY MAYBE 12, 15 YEARS.
20 Q. HE HAD IT LONGER BEFORE YOU KNEW HIM?
21 A. RIGHT.
22 Q. DID HE EVER HAVE ANY PROBLEMS WITH THE DIABETES?
23 A. HE HAD TO HAVE THE SHOTS.
24 Q. WOULD YOU HELP HIM TAKE THE SHOTS AND SO FORTH?
25 A. YES.
926
1 Q. SO IN THIS PERIOD OF TIME WHEN YOU WERE LIVING DOWN
2 IN -- BY NEPHI, DID THERE COME A TIME WHEN ENNIS' HEALTH
3 STARTED TO HAVE A PROBLEM?
4 A. YES.
5 Q. AND WHAT WAS THAT?
6 A. DO YOU WANT ME TO TELL YOU THE NAME OF WHAT HE HAD?
7 Q. YEAH, THAT WOULD BE FINE.
8 A. T-CELL LYMPHOMAL MYCOSIS FUNGOIDES WHICH WAS A SKIN
9 CANCER.
10 Q. WHEN DID HE GET THAT?
11 A. PROBABLY IN '92 IS WHEN WE DISCOVERED IT.
12 Q. AND WHAT PART OF HIS BODY? CAN YOU DESCRIBE WHERE THAT
13 WAS AND A LITTLE BIT ABOUT THAT?
14 A. FIRST IT WAS ON HIS LEGS AND IT WAS A RED SPOT THAT HE'D
15 HAD FOR YEARS, AND WE NOTICED THAT IT WAS KIND OF LACEY
16 AROUND THE EDGE. WENT TO THE DOCTOR. THEY TRIED TO TREAT
17 IT WITH SALVE AND THAT DIDN'T WORK, AND FINALLY WE WENT
18 TO -- I DON'T REMEMBER THE DOCTOR -- AND HE DIAGNOSED IT AS
19 SKIN CANCER.
20 Q. AND WHAT TYPE OF TREATMENT DID HE HAVE?
21 A. HE HAD RADIATION.
22 Q. WHERE WAS THAT DONE AT?
23 A. THE UNIVERSITY HOSPITAL IN SALT LAKE.
24 Q. WAS THERE ANY OTHER AREAS OF HIS BODY THAT HAD T-CELL
25 CANCER OTHER THAN ON HIS LEG? DO YOU KNOW?
927
1 A. I THINK THAT WAS ALL.
2 Q. DID HE HAVE ANY OPERATIONS OR ANYTHING LIKE THAT WITH
3 IT?
4 A. NO.
5 Q. JUST THE RADIATION?
6 A. JUST THE RADIATION.
7 Q. HOW LONG DID THAT TAKE?
8 A. WE WENT ALL THAT SUMMER AND THEN HE WAS DIAGNOSED AS
9 CLEAR OF THE CANCER BY FALL.
10 Q. DID HE HAVE ANY OTHER PROBLEMS WITH IT AT ALL?
11 A. NO. WE WENT BACK EVERY SIX MONTHS TO DR. ZOE AND HE
12 SAID HE WAS FINE.
13 Q. SO EVERY SIX MONTHS YOU WOULD GO BACK AND THERE WAS NO
14 INDICATION OF THE CANCER?
15 A. NO.
16 Q. DID THERE COME A TIME, I GUESS AFTER THAT CANCER, WHEN
17 YOU STARTED HAVING SOME PROBLEMS WITH ENNIS' MEMORY, MENTAL
18 HEALTH TYPE?
19 A. RIGHT.
20 Q. WHEN DID THAT START? DO YOU RECALL?
21 A. PROBABLY IN '94 WHEN WE REALLY NOTICED IT.
22 Q. AND WHAT KIND OF -- HOW DID IT KIND OF START? CAN YOU
23 KIND OF DESCRIBE THAT?
24 A. FIRST WE NOTICED HE WAS STUMBLING SOME AND THEN HE WOULD
25 DO -- OH, HE COULDN'T REMEMBER WHERE -- THERE WERE BIG HOLES
928
1 IN THE MIDDLE OF THE LAWN TRYING TO FIND THE SPRINKLING
2 SYSTEM AND JUST DIFFERENT THINGS LIKE THAT.
3 Q. NOW, WHEN YOU TALK ABOUT HE WAS STUMBLING, CAN YOU
4 DESCRIBE THAT A LITTLE BIT? I'M NOT QUITE SURE I
5 UNDERSTAND.
6 A. WELL, HE DIDN'T SEEM TO BE TOO STEADY ON HIS FEET AT
7 TIMES.
8 Q. AND DID THIS--
9 A. AND HE DID FALL. HE FELL ONE TIME.
10 Q. DID HE FALL?
11 A. ONE TIME, YES.
12 Q. AND HOW LONG DID THIS BASICALLY GO FOR?
13 A. PARDON?
14 Q. HOW LONG DID THIS -- HOW LONG DID THIS PROBLEM GO BEFORE
15 THERE WAS A CHANGE?
16 A. WHAT -- WHAT DO YOU MEAN?
17 Q. WELL, YOU STARTED OFF WITH HIS PROBLEM WITH STUMBLING, I
18 GUESS, AND HAVING SOME MOMENTS OF FORGETFULNESS. DID THAT
19 CHANGE IN ANY WAY TO BECOME WORSE OR TO BECOME BETTER?
20 A. YES.
21 Q. BECOME WORSE?
22 A. AND IT WAS HARD TO KEEP THE DEPENDS ON HIM, THINGS LIKE
23 THAT. AND HE DID NOT SLEEP.
24 Q. WHEN DID HE START HAVING TO WEAR DEPENDS?
25 A. PARDON?
929
1 Q. WHEN DID HE START HAVING TO WEAR THE DEPENDS, THE
2 DIAPERS?
3 A. ABOUT '94.
4 Q. AND WHAT WAS THE REASON FOR THAT? DO YOU KNOW?
5 A. WELL, JUST COULDN'T CONTAIN HIMSELF.
6 Q. AND WAS THAT EVER DIAGNOSED BY A DOCTOR OR ANYBODY EVER
7 LOOK INTO THAT?
8 A. OH, YES.
9 Q. DID THEY EVER TELL YOU A DIAGNOSIS OR WHAT WAS THE
10 PROBLEM?
11 A. NO. IT DIDN'T SEEM TO -- WE DID HAVE DR. SMITH ALL THE
12 TIME. WE WENT TO HIM ALL THE TIME.
13 Q. BUT THEY DIDN'T INDICATE TO YOU THERE WAS ANY PROBLEMS
14 TO WORRY ABOUT?
15 A. NO. HE JUST CHECKED HIM FOR HIS DIABETES.
16 Q. SO AFTER HE STARTED HAVING THESE OTHER PROBLEMS WITH NOT
17 BEING ABLE TO KEEP ON THE DEPENDS AND OTHER THINGS, DID ANY
18 OTHER CHANGES TAKE PLACE?
19 A. HE RAN AWAY A COUPLE OF TIMES. GOT LOST.
20 Q. GOT LOST?
21 A. WHEN WE WERE STILL IN OAK CITY HE GOT LOST A COUPLE OF
22 TIMES.
23 Q. AND WHAT WAS HIS GENERAL PHYSICAL HEALTH DURING THIS
24 PERIOD OF TIME?
25 A. WELL, HE COULD EAT ANYTHING. HE HAD A GOOD APPETITE.
930
1 HE'D EAT ANYTHING.
2 Q. HOW ABOUT HIS STRENGTH?
3 A. HE WAS PRETTY STRONG.
4 Q. DID YOU NOTICE ANY CHANGES IN THAT?
5 A. NOT TOO MUCH, NO. NO, NOT EVER.
6 Q. NOT EVER?
7 A. NO.
8 Q. DID THERE BECOME A TIME WHEN THE PROBLEMS CAUSED YOU TO
9 MOVE FROM OAK CITY?
10 A. YES.
11 Q. AND WHEN WAS THAT?
12 A. I THINK APRIL OF '95.
13 Q. AND WHAT WAS IT THAT LED YOU TO MOVE FROM OAK CITY?
14 A. WELL, WE WERE BOTH EXHAUSTED. AND I DIDN'T HAVE THAT
15 MUCH HELP. AND SO I MOVED UP BY MY DAUGHTER WHO WAS -- GAVE
16 ME A LOT OF HELP WITH HIM.
17 Q. WHERE DID SHE LIVE AT, YOUR DAUGHTER?
18 A. SHE LIVED IN LOGAN.
19 Q. AND WHEN YOU GOT UP TO LOGAN, WHAT IF ANYTHING HAPPENED
20 AS FAR AS ENNIS' CONDITION?
21 A. ABOUT THE SAME EXCEPT MOSTLY BEING WE WERE TO THE POINT
22 OF EXHAUSTION BECAUSE HE DIDN'T SLEEP. AND HE DID RUN AWAY
23 THERE ONE TIME AND GOT LOST SO...
24 Q. AND DID YOU SEE ANY DOCTORS IN LOGAN?
25 A. YES. DR. CUNNINGHAM.
931
1 Q. AND WAS THERE ANY CHANGE IN ENNIS' PHYSICAL CONDITION --
2 NOT MENTAL, BUT PHYSICAL ASPECT OF HIS BODY?
3 A. I DON'T THINK SO.
4 Q. AND HOW LONG DID ENNIS LIVE IN THE HOME WITH YOU IN
5 LOGAN?
6 A. OH, FROM -- I'M NOT SURE IF WE MOVED THERE IN APRIL OR
7 MAY, UNTIL SEPTEMBER.
8 Q. AND WHAT HAPPENED IN SEPTEMBER?
9 A. THEN I HAD HIM PUT IN A REST HOME.
10 Q. AND WHAT LED UP TO THAT HAVING PLACED HIM IN A REST
11 HOME?
12 A. WELL, I COULDN'T TAKE CARE OF HIM. I HAVE -- JUST
13 COULDN'T DO IT. HE WAS TOO HEAVY. HE WAS -- HE WAS JUST
14 HARD FOR ME TO TAKE CARE OF HIM.
15 Q. WHAT WAS HIS MENTAL CONDITION LIKE AT THIS TIME?
16 A. THE DAY WE PUT HIM IN THE REST HOME WE BOTH AGREED. HE
17 SAID, WE CANNOT LIVE THIS WAY. AND WE AGREED THAT'S WHERE
18 HE SHOULD GO. WE DID HAVE HOME HEALTH AND AS LONG AS HE
19 COULD RIDE IN THE CAR, THEY WOULDN'T -- THE HOME HEALTH
20 WOULDN'T HELP US UNLESS IF HE HAD BEEN BEDRIDDEN. THEY
21 WOULD HAVE COME AND HELPED US, BUT THEY WOULDN'T AS LONG AS
22 HE COULD GET OUT AND GO IN THE CAR.
23 Q. AND HOW LONG WAS HE IN THE REST HOME?
24 A. FOUR MONTHS.
25 Q. AND --
932
1 A. SEPTEMBER, OCTOBER, NOVEMBER. WE TOOK HIM THE 14TH --
2 NO, THE 10TH OF JANUARY TO LAYTON.
3 Q. SO HE WAS IN THIS REST HOME UNTIL HE WENT TO THE
4 GEROPSYCH UNIT IN LAYTON?
5 A. YES.
6 Q. DID YOU VISIT HIM OFTEN WHEN HE WAS IN THE REST HOME?
7 A. EVERY DAY.
8 Q. EVERY DAY?
9 A. EVERY DAY AND NEARLY ALL DAY.
10 Q. ALL DAY LONG?
11 A. WELL, ALL AFTERNOON. MOST OF THE DAY, UH-HUH.
12 Q. WHAT TYPE OF ACTIVITY WOULD YOU ENGAGE IN WHILE YOU WERE
13 VISITING?
14 A. WELL, THEY TOOK HIM IN THE WHEELCHAIR AROUND THE BLOCK
15 NEARLY EVERY DAY. AND WE HAD DIFFERENT ACTIVITIES, WHATEVER
16 THEY HAVE THERE, YOU KNOW, FOR ENTERTAINMENT. WE HAD
17 DANCES, WHEELCHAIR DANCES.
18 Q. CAN YOU DESCRIBE THOSE? WHAT ARE THE WHEELCHAIR DANCES?
19 A. WE WOULD PUSH THEM AROUND IN THE WHEELCHAIR UNTIL ONE
20 DAY ENNIS GOT TIRED OF ME PUSHING HIM. AND HE STILL WALKED
21 GOOD, BUT NOT THAT FAR. ONE DAY HE SAID, WELL, I'LL PUSH
22 YOU A WHILE. SO HE GOT UP AND PUSHED ME. AND THIS WAS IN
23 DECEMBER.
24 Q. SO DECEMBER OF 1995?
25 A. RIGHT.
933
1 Q. DID YOU NOTICE ANY CHANGES -- UP UNTIL THIS POINT IN
2 TIME, DID YOU NOTICE ANY CHANGES IN ENNIS' MENTAL STATUS?
3 A. HE WAS MORE AGITATED, I THINK, AT THAT TIME.
4 Q. WAS HE STILL COMMUNICATIVE TO YOU?
5 A. HE ALWAYS KNEW ME.
6 Q. ALWAYS KNEW WHO YOU WERE?
7 A. ALWAYS KNEW ME.
8 Q. WAS ABLE TO GET AROUND ON HIS OWN?
9 A. PRETTY MUCH. HE HAD A WALKER.
10 Q. WERE YOU AWARE OF ANY TIMES THAT ENNIS HAD FALLEN DOWN
11 IN THE REST HOME?
12 A. I THINK THEY CALLED ME ONE TIME THAT HE HAD FALLEN.
13 Q. AND DID YOU CHECK ON ENNIS AT THAT TIME?
14 A. RIGHT.
15 Q. DID YOU FIND ANY PROBLEMS WITH HIM?
16 A. NO. I THINK HE TRIED TO GET OUT OF HIS BED OR SOMETHING
17 AND FELL.
18 Q. DID THEY EXPLAIN WHETHER OR NOT THERE WAS ANY PROBLEMS
19 WITH ENNIS THAT WOULD HAVE CAUSED HIM TO FALL?
20 A. NO. I'M NOT SURE WHETHER THEY CALLED DR. CUNNINGHAM
21 THEN OR NOT. I DON'T KNOW FOR SURE.
22 Q. DID -- WHAT WAS HIS GENERAL PHYSICAL HEALTH DURING THIS
23 PERIOD OF TIME?
24 A. WELL, LIKE I SAY, HE ATE EVERYTHING. AND HE NEVER DID
25 SLEEP WELL. SO HE WAS UP AND DOWN THE HALLS ALL THE TIME
934
1 BECAUSE HE DIDN'T SLEEP WELL.
2 Q. AND WHAT WAS HIS GENERAL STRENGTH?
3 A. HE WAS STRONG. HE WAS ALWAYS STRONG.
4 Q. ALWAYS STRONG. AND DID THERE COME A TIME WHEN HIS
5 AGITATION BECAME WORSENED OR BECAME A PROBLEM FOR THE REST
6 HOME?
7 A. YEAH. I THINK HE HIT AT A FEW PEOPLE.
8 Q. AND WHAT WAS FINALLY DECIDED TO DO?
9 A. WELL, THEY CALLED ME ONE NIGHT AND SAID HE WAS SO
10 AGITATED THEY DID NEED TO HAVE HIS MEDICATION CHECKED, AND
11 THERE WAS A PLACE CALLED HORIZON THEY COULD SEND HIM TO TO
12 HAVE HIS MEDICATION CHECKED.
13 Q. DID THEY TELL YOU WHERE THAT HORIZON WAS LOCATED?
14 A. YES.
15 Q. AND WHERE WAS THAT?
16 A. IN LAYTON.
17 Q. AND THIS WAS SOMEONE FROM THE REST HOME THAT ENNIS WAS
18 IN?
19 A. YES, RIGHT.
20 Q. AND WHAT DID YOU DECIDE AFTER RECEIVING THAT PHONE CALL?
21 A. WELL, THEY SAID HE WAS -- HE HAD TO HAVE HIS MEDICATION
22 CHECKED BECAUSE THEY COULD NOT HANDLE HIM THERE. THEY
23 NEEDED HIS MEDICATION CHECKED AND SO I AGREED TO THAT.
24 Q. AND WAS YOUR HUSBAND THEN TRANSPORTED TO THE GEROPSYCH
25 UNIT AT DAVIS NORTH?
935
1 A. YES.
2 Q. AND --
3 A. I WENT WITH HIM.
4 Q. WENT WITH HIM. DESCRIBE THAT.
5 A. I WENT WITH HIM IN THE VAN.
6 Q. WHO DROVE THE VAN?
7 A. I DON'T KNOW. SOMEONE.
8 Q. SOMEBODY?
9 A. SOMEBODY.
10 Q. WAS IT SOMEBODY FROM THE REST HOME OR SOMEONE FROM THE
11 HOSPITAL?
12 A. SOMEONE FROM THE REST HOME, I THINK.
13 Q. AND AT THIS POINT IN TIME -- UP UNTIL THIS POINT IN TIME
14 WHEN HE WAS LEAVING, DID YOU NOTICE ANYTHING UNUSUAL ABOUT
15 HIS CONDITION?
16 A. WELL, HE DIDN'T COMMUNICATE TOO MUCH WITH ME. I DID SIT
17 BY HIM ALL THE WAY IN THE VAN AND HE WOULD PICK MY HAND UP
18 AND PUT IT UP TO HIS MOUTH LIKE HE MIGHT BE HUNGRY.
19 Q. HE WAS ALERT?
20 A. WELL, TO THAT. NOT THAT ALERT REALLY, NOT THAT MUCH.
21 BUT...
22 Q. WELL, I UNDERSTAND THERE'S A DIFFERENCE IN DEFINITION OF
23 BEING ALERT, BUT HE WAS AWAKE?
24 A. YES. Awake.
25 Q. SEEMED TO KNOW WHAT WAS GOING ON, THAT TYPE OF THING?
936
1 A. RIGHT.
2 Q. WHEN YOU ARRIVED AT THE HOSPITAL IN LAYTON, THE
3 GEROPSYCH UNIT, DID YOU KNOW ABOUT WHAT TIME THAT WAS?
4 A. I HAVEN'T -- SOMEWHERE NOON OR AFTER.
5 Q. IN THE AFTERNOON?
6 A. YES. I HAVE NO -- I DON'T REMEMBER.
7 Q. WHAT HAPPENED WHEN YOU ARRIVED AT THE HOSPITAL THERE?
8 A. WELL, LET'S SEE. WE WHEELED HIM IN ON THE WHEELCHAIR
9 AND THE NURSE CHECKED -- ASKED ME ALL THE QUESTIONS ABOUT
10 HIS HEALTH AND CHECKED HIM IN. AND WE SIT FOR A WHILE AND
11 HE WHEELED AROUND THE ROOM IN THE WHEELCHAIR AND THEN THEY
12 TOOK HIM TO A ROOM.
13 Q. AND WHAT DID YOU DO WHEN THEY TOOK ENNIS TO THE ROOM?
14 A. WELL, I WAITED AND FINALLY THEY TOLD ME HE WAS OUT.
15 Q. NOW, OUT, WHAT DO YOU MEAN? OUT OF THE HOSPITAL OR --
16 A. HE WAS ASLEEP OR WHATEVER.
17 Q. DID THIS SURPRISE YOU?
18 A. WELL, NOT REALLY. I FIGURED, YOU KNOW, THAT'S WHAT THEY
19 WOULD DO.
20 Q. AND AFTER YOU WERE GIVEN THIS INFORMATION, WHAT DID YOU
21 DO?
22 A. WE WAITED A WHILE AND THEN I WAS WITH -- WITH THE DRIVER
23 OF THE VAN AND WE WENT BACK TO LOGAN.
24 Q. AND DO YOU REMEMBER WHAT DAY OF THE WEEK THIS WOULD HAVE
25 BEEN?
937
1 A. I THINK WEDNESDAY.
2 Q. WHEN WAS IT -- AFTER YOU GOT BACK TO LOGAN, WHEN WAS THE
3 NEXT CONTACT YOU HAD WITH THE HOSPITAL?
4 A. I CALLED THURSDAY THEN TO SEE HOW HE WAS AND THEY SAID
5 HE WAS STILL UNCONSCIOUS, THAT HE WAS OUT. THAT HE HAD
6 NEVER COME TO.
7 Q. AND DO YOU RECALL ABOUT WHAT TIME THIS WOULD HAVE BEEN
8 ON THURSDAY?
9 A. SOMETIME IN THE EVENING.
10 Q. DID YOU QUESTION THEM AS TO WHY HE WAS STILL OUT?
11 A. NO, I DIDN'T. I JUST TRUSTED THE DOCTOR. I JUST
12 TRUSTED THAT HE WAS OKAY.
13 Q. WHAT WAS THE REASON THAT YOU MADE THE CALL?
14 A. JUST TO CHECK ON HIM, TO SEE HOW HE WAS DOING, SEE IF HE
15 WAS OKAY.
16 Q. AND DID YOU PLAN ON VISITING HIM?
17 A. WELL, I HAD A HARD TIME WITH TRANSPORTATION AT THAT
18 TIME.
19 Q. AND THAT WAS FROM LOGAN TO THE HOSPITAL?
20 A. RIGHT.
21 Q. WHEN WAS THE NEXT TIME YOU HAD CONTACT WITH THE
22 HOSPITAL?
23 A. FRIDAY EVENING.
24 Q. AND WHAT WAS THE NATURE OF THAT CONTACT?
25 A. DR. WEITZEL CALLED ME AND SAID ENNIS HAD HAD A MASSIVE
938
1 STROKE AND WOULD NOT MAKE IT THROUGH THE NIGHT.
2 Q. AND DO YOU RECALL APPROXIMATELY WHAT TIME THAT WAS?
3 A. I DON'T EVEN REMEMBER. I HAVE NO IDEA.
4 Q. AND WAS THIS A SHOCK TO YOU?
5 A. PARDON?
6 Q. WERE YOU SURPRISED BY THIS PHONE CALL?
7 A. WELL, NATURALLY, YES. I WAS VERY, VERY UPSET. SO I
8 SAID, I'LL BE THERE AS SOON AS I CAN GET THERE, AND
9 CONTACTED MY DAUGHTER AND IT WAS MORNING BEFORE THEY COULD
10 GET ME DOWN THERE.
11 Q. NOW, WHEN YOU HAD THIS PHONE CALL FROM DR. WEITZEL, YOU
12 INDICATED HE TOLD YOU HE HAD A MASSIVE STROKE. WAS THERE
13 ANY OTHER CONVERSATION YOU HAD WITH HIM ABOUT ENNIS'
14 CONDITION?
15 A. NO. NO. HE SAID HE WOULD NOT MAKE IT THROUGH THE
16 NIGHT.
17 Q. DID HE ASK YOU CONCERNING -- ABOUT ANY TYPE OF
18 TREATMENT?
19 A. NO.
20 Q. TREATMENT TO GIVE FOR ENNIS?
21 A. NO.
22 Q. DID HE MENTION ANYTHING TO YOU ABOUT COMFORT CARE OR
23 LIFE-SUSTAINING MEASURES OR ANYTHING OF THAT NATURE?
24 A. HE SAID THEY WERE TAKING THE LIFE SUPPORT SYSTEM OFF.
25 Q. DID HE GIVE YOU ANY -- EXPLAIN TO YOU ANYTHING OTHER
939
1 THAN JUST A MASSIVE STROKE?
2 A. NO.
3 Q. DID DR. WEITZEL EXPLAIN ANY OPTIONS THAT YOU HAD?
4 A. NO.
5 Q. DID HE ASK YOU CONCERNING GIVING OR NOT GIVING ENNIS
6 FLUIDS OR --
7 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT AT
8 THIS TIME. IT'S LEADING AND SUGGESTIVE. THIS IS VERY
9 IMPORTANT TESTIMONY. I THINK SHE CAN TESTIFY WHAT SHE
10 RECALLS.
11 THE COURT: ASK WHAT WAS SAID AND NOT --
12 Q. (BY MR. MAJOR) DO YOU RECALL ANY CONVERSATION TO
13 THAT -- OF THAT NATURE?
14 A. NO.
15 Q. WAS THERE ANYTHING SAID ABOUT WHAT --
16 MR. STIRBA: YOUR HONOR, I OBJECT --
17 THE COURT: SUSTAINED.
18 MR. STIRBA: -- LEADING AND SUGGESTIVE.
19 THE COURT: SUSTAINED.
20 Q. (BY MR. MAJOR) WAS THERE -- SO AS FAR AS YOU KNOW,
21 THERE WAS NO OTHER CONVERSATION HAD?
22 A. NO.
23 Q. DID -- WAS THERE ANY -- DID THE DOCTOR ASK YOU FOR
24 PERMISSION TO DO ANYTHING?
25 A. EVIDENTLY TAKING THE LIFE SUPPORT SYSTEM OFF.
940
1 Q. DID HE ASK YOU TO DO ANYTHING ELSE?
2 A. NO.
3 Q. DO YOU HAVE A FAIRLY VIVID -- THIS HAS BEEN A WHILE AGO.
4 DO YOU HAVE A VERY VIVID REMEMBRANCE OF THAT OCCASION?
5 A. RIGHT.
6 Q. COULD HE HAVE ASKED YOU TO HAVE DONE ANYTHING ELSE?
7 A. NO.
8 MR. STIRBA: I'M GOING TO OBJECT AT THIS TIME.
9 THE COURT: SUSTAINED. Many objections, all sustained.
10 MR. MAJOR: THANK YOU, YOUR HONOR. WE HAVE NO
11 FURTHER QUESTIONS, YOUR HONOR.
12 THE COURT: MR. STIRBA?
13 CROSS-EXAMINATION
14 BY MR. STIRBA:
15 Q. GOOD AFTERNOON, MRS. ALLDREDGE. THE CONVERSATION THAT
16 YOU JUST TESTIFIED ABOUT WITH DR. WEITZEL, ARE YOU CERTAIN
17 AS YOU SIT HERE NOW THAT THAT WAS FRIDAY EVENING?
18 A. I'M QUITE SURE BECAUSE WE WENT DOWN SATURDAY MORNING.
19 Q. IT COULDN'T HAVE BEEN A CONVERSATION, FOR EXAMPLE, THAT
20 TOOK PLACE SATURDAY MORNING BEFORE YOU CAME DOWN?
21 A. NO. NO.
22 Q. OKAY. AND WHEN YOU CAME DOWN, IT WAS YOU -- AND WERE
23 YOU WITH OTHER FAMILY MEMBERS AS WELL?
24 A. RIGHT. MY DAUGHTER AND HER HUSBAND.
25 Q. AND THEN YOU STAYED FOR A PERIOD OF TIME AT THE
941
1 HOSPITAL; IS THAT RIGHT?
2 A. RIGHT. I STAYED THEN UNTIL HE PASSED AWAY.
3 Q. I SEE. AND THE OTHER FAMILY MEMBERS WERE THERE AS WELL?
4 A. YES.
5 Q. AND DID YOU ESSENTIALLY STAY IN THE ROOM WITH
6 MR. ALLDREDGE UNTIL HE PASSED AWAY?
7 A. YES. I DID NAP ON THE BED AND WHEN HE PASSED AWAY, ONE
8 OF THE DAUGHTERS WOKE ME UP AND SAID HE'S GONE.
9 Q. YOU TESTIFIED ABOUT DR. WEITZEL MENTIONING SOMETHING
10 ABOUT TAKING HIM OFF LIFE SUPPORT SYSTEMS; IS THAT RIGHT?
11 A. RIGHT.
12 Q. WERE YOU AWARE AT THAT TIME THAT MR. ALLDREDGE HAD WHAT
13 IS CALLED A LIVING WILL?
14 A. RIGHT.
15 Q. YOU WERE AWARE OF THAT FACT?
16 A. RIGHT.
17 Q. AND IF WE COULD HAVE -- YOU KNOW WHEN YOU GOT TO THE
18 HOSPITAL -- AND I REALIZE IT'S A WHILE BACK -- BUT DID
19 ANYBODY TALK TO YOU ABOUT A LIVING WILL OR SOME KIND OF
20 DIRECTIVES IN CASE SOMETHING REALLY BAD HAPPENED?
21 A. I DON'T REMEMBER. I THINK WE GAVE THE LIVING WILL TO
22 THE SUNSHINE TERRACE.
23 Q. TO THE NURSING HOME FOLKS. THAT'S WHO YOU GAVE IT TO,
24 YOU THINK?
25 A. I DON'T KNOW WHO.
942
1 Q. NOW, I'M GOING TO DISPLAY -- IT WILL BE UP ON THAT WHITE
2 BOARD, MA'AM, AND MAYBE IF YOU HAVE ANY PROBLEMS SEEING IT
3 JUST FEEL FREE TO WALK OFF OF THE WITNESS STAND. BUT IT
4 SAYS AT THE TOP, LIVING WILL OF ENNIS ALLDREDGE. AND
5 LOOKING AT THAT, DOES THAT APPEAR TO BE THE DOCUMENT THAT
6 YOU GAVE TO THE NURSING HOME? AND I'LL SHOW YOU A LITTLE
7 BIT MORE OF IT. IT MIGHT HELP. I JUST CAN'T GET IT ALL ON
8 AT ONE TIME. THAT'S THE REST OF THE FIRST PAGE AND THEN
9 HERE IS THE SECOND PAGE. MAYBE THIS WILL HELP YOU IDENTIFY
10 MR. ALLDREDGE'S SIGNATURE.
11 A. RIGHT. THAT IS -- LET'S SEE.
12 Q. AND I'LL SHOW YOU --
13 A. YES. THAT'S HIS SIGNATURE.
14 Q. THAT'S HIS SIGNATURE UP HERE IN THE CORNER THERE?
15 A. YES.
16 Q. AND THEN IT LOOKS LIKE IT SAYS, THE DECLARANT, ENNIS
17 ALLDREDGE, IS KNOWN TO ME AND I BELIEVE TO BE OF SOUND MIND.
18 WE HAVE SOME WITNESSES, IT LOOKS LIKE BETTY JEFFREY
19 FROM DELTA. AND DO YOU KNOW BETTY?
20 A. YES.
21 Q. AND THEN NANCY, IT LOOKS LIKE OPPERHEIMER?
22 A. OPPERHEIMER.
23 Q. SHE WAS ALSO FROM DELTA AS WELL. DO YOU KNOW HER?
24 A. YES.
25 Q. SO DOES THIS APPEAR TO BE THEN THAT LIVING WILL THAT YOU
943
1 GAVE THE NURSING HOME?
2 MR. MAJOR: YOUR HONOR, IF I MIGHT HAVE ONE SECOND
3 TO TALK TO COUNSEL, MR. STIRBA.
4 (DISCUSSION OFF THE RECORD)
5 Q. (BY MR. STIRBA) OKAY. AND THE DATE ON THAT, IF I CAN
6 READ IT FROM HERE, IT LOOKS LIKE -- I CAN'T READ IT FROM
7 HERE -- IT LOOKS LIKE THE 30TH OF JULY OF 1993. WOULD THAT
8 SORT OF SQUARE WITH YOUR RECOLLECTION?
9 A. YES.
10 Q. NOW, I'M GOING TO PUT THIS BACK UP HERE. AND I JUST
11 WANT TO POINT OUT TO YOU, AND I'LL READ IT, PARAGRAPH THREE.
12 MR. MAJOR: YOUR HONOR, I DON'T WANT TO CAUSE
13 PROBLEMS, BUT I THINK WE NEED TO ESTABLISH SOME FOUNDATION
14 FOR THIS AS FAR AS ITS RELEVANCY. IF THERE IS A LATER
15 LIVING WILL THAT SUPERSEDES THIS ONE, ONE THAT MAY HAVE BEEN
16 DONE LATER ON, THEN THIS ONE WOULD NOT BE RELEVANT TO
17 ANYTHING THAT WE'RE DOING IN THIS PARTICULAR CASE BECAUSE
18 THE NEWER ONE WOULD HAVE SUPERSEDED ANYTHING THAT WOULD TAKE
19 PLACE ON THIS PARTICULAR DOCUMENT.
20 THE COURT: WHAT KIND OF RELEVANCE IS THIS?
21 MR. STIRBA: THIS IS HIS LIVING WILL AND HIS
22 DIRECTIVES CONCERNING END-OF-LIFE CARE AND I THINK THAT
23 THERE'S ALREADY BEEN SOME TESTIMONY FROM MRS. ALLDREDGE
24 ABOUT A CONVERSATION THAT HAD TO BE REMOVING A LIFE SUPPORT
25 SYSTEM. AND I THINK IT'S DIRECTLY RELEVANT.
944
1 MR. MAJOR: MY OBJECTION, YOUR HONOR, IS I BELIEVE
2 THERE WAS A NEW MEDICAL TREATMENT PLAN AND ANOTHER LIVING
3 WILL THAT WAS DRAFTED IN 1994 THAT WOULD SUPERSEDE THIS
4 PARTICULAR WILL. THAT WAS WHAT WAS INCLUDED IN THE HOSPITAL
5 RECORDS OF THE GEROPSYCH UNIT.
6 MR. STIRBA: I'M NOT GOING TO ARGUE ALL THE
7 EVIDENCE IN FRONT OF THE JURY, BUT I THINK THAT IF COUNSEL
8 WANTS TO POINT THAT OUT ON CROSS, HE CAN. BUT I'M JUST
9 GOING TO GO THROUGH THIS DOCUMENT.
10 THE COURT: OVERRULED.
11 Q. (BY MR. STIRBA) NOW, THIS ONE SAYS IN PARAGRAPH
12 THREE -- IF YOU WANT TO READ IT WITH ME, MA'AM, YOU CAN. IT
13 SAYS, "IF AT ANY TIME I SHOULD HAVE A TERMINAL CONDITION AND
14 MY ATTENDING PHYSICIAN HAS DETERMINED THAT THERE CAN BE NO
15 RECOVERY FROM SUCH CONDITION, AND MY DEATH IS IMMINENT,
16 WHERE THE APPLICATION OF LIFE-PROLONGING PROCEDURES AND
17 HEROIC MEASURES WOULD SERVE ONLY TO ARTIFICIALLY PROLONG THE
18 DYING PROCESS, I DIRECT THAT SUCH PROCEDURES BE WITHHELD OR
19 WITHDRAWN AND THAT I BE PERMITTED TO DIE NATURALLY. I DO
20 NOT FEAR DEATH ITSELF AS MUCH AS THE INDIGNITIES OF THE
21 DETERIORATION, DEPENDENCE AND HOPELESS PAIN. I, THEREFORE,
22 ASK THAT MEDICATION BE MERCIFULLY ADMINISTERED TO ME AND
23 THAT ANY MEDICAL PROCEDURES BE PERFORMED ON ME WHICH WILL BE
24 DEEMED NECESSARY TO PROVIDE ME WITH COMFORT CARE OR TO
25 ALLEVIATE PAIN."
945
1 DO YOU SEE WHERE I'M READING?
2 A. YES.
3 Q. AND THEN IN PARAGRAPH FOUR IT SAYS, "IN THE ABSENCE OF
4 MY ABILITY TO GIVE DIRECTIONS REGARDING THE USE OF SUCH
5 LIFE-PROLONGING PROCEDURES, IT IS MY INTENTION THAT THIS
6 DECLARATION SHALL BE HONORED BY MY FAMILY AND PHYSICIAN AS
7 THE FINAL EXPRESSION OF MY LEGAL RIGHT TO REFUSE MEDICAL OR
8 SURGICAL TREATMENT AND ACCEPT THE CONSEQUENCES FOR SUCH
9 REFUSAL."
10 DID I READ THAT CORRECTLY?
11 A. YES.
12 Q. AND DID YOU UNDERSTAND THOSE WISHES TO HAVE BEEN YOUR
13 HUSBAND'S AS OF THE TIME THAT HE DID THIS BACK IN JULY OF
14 1993?
15 A. I THINK SO.
16 Q. NOW, WAS THERE -- DO YOU UNDERSTAND THERE WAS A CHANGE
17 AT SOME POINT IN THE DIRECTIONS THAT WERE PROVIDED IN THAT
18 DOCUMENT AT SOME POINT AFTER JULY OF 1993?
19 A. I DON'T REMEMBER. I WOULD HAVE TO SEE THAT DOCUMENT.
20 Q. ONCE AGAIN, I'LL JUST PUT THIS UP HERE ON THE BOARD, IF
21 YOU WANT TO TAKE A LOOK AT IT. NOW, THIS ONE HAD AT THE
22 TOP, MRS. ALLDREDGE, IT SAYS, "SPECIAL POWER OF ATTORNEY."
23 I KNOW IT'S NOT VERY EASY TO READ, BUT IT SAYS THAT. AND
24 THEN IT APPEARS THAT ENNIS IS APPOINTING YOU, THAT'S VONDA,
25 WITH SOME POWERS.
946
1 A. RIGHT.
2 Q. DO YOU REMEMBER NOW SEEING THIS DOCUMENT, THE
3 CIRCUMSTANCES OF THIS?
4 A. RIGHT. YES.
5 Q. AND THE DATE ON THIS -- I'LL HAVE TO GIVE YOU ANOTHER
6 SHEET HERE -- AND THAT'S -- BY THE WAY, YOU SEE THE
7 SIGNATURE THERE? IS THAT ENNIS'?
8 A. RIGHT.
9 Q. AND THE DATE ON THIS IS JUNE 2ND OF 1994. DO YOU SEE
10 THAT?
11 A. YEAH.
12 Q. DO YOU REMEMBER THE CIRCUMSTANCES THAT OCCURRED AT ABOUT
13 THIS TIME SUCH THAT HE DECIDED TO APPOINT YOU AND GIVE YOU A
14 SPECIAL POWER OF ATTORNEY?
15 A. I THINK OUR HOME NURSE FROM NEPHI ADVISED US TO DO THIS.
16 Q. DO YOU KNOW THE REASON WHY YOU WERE ADVISED BY YOUR HOME
17 NURSE TO DO THIS?
18 A. NO. JUST SO THAT HE WOULD HAVE THAT PROTECTION.
19 Q. AND DID YOU UNDERSTAND -- YOU SAID PROTECTION. DID YOU
20 UNDERSTAND THAT THIS GAVE YOU CERTAIN RIGHTS IN THE EVENT --
21 A. RIGHT.
22 Q. -- ENNIS COULD NOT SPEAK FOR HIMSELF --
23 A. RIGHT.
24 Q. -- TO PROVIDE MEDICAL CARE?
25 A. RIGHT.
947
1 Q. OR TO WITHDRAW MEDICAL CARE, AS THE CASE MIGHT BE?
2 A. RIGHT.
3 Q. I'M GOING TO PUT UP ANOTHER DOCUMENT WHICH SAYS AT THE
4 TOP, MEDICAL TREATMENT PLAN. AND IT HAS -- IT LOOKS LIKE
5 DR. CUNNINGHAM HAS CERTIFIED THAT I, THE ATTENDING PHYSICIAN
6 FOR ENNIS ALLDREDGE OF SUNSHINE TERRACE, WHO WAS IN HIS CARE
7 OCTOBER 11, 1995. THEN HE GOES ON TO STATE THAT HE
8 DIAGNOSED ENNIS AS HAVING ALZHEIMER'S DISEASE.
9 A. RIGHT.
10 Q. AND THEN THERE APPEARS TO BE A SIGNATURE OF THE
11 ATTENDING PHYSICIAN DATED 10/11/95. AND THEN IS THAT YOUR
12 SIGNATURE DOWN AT THE BOTTOM ON THE RIGHT-HAND SIDE?
13 A. YES.
14 Q. AND IT SAYS THAT THE FOLLOWING CARE AND TREATMENT OR
15 WITHHOLDING OF TREATMENT IS DIRECTED WITH RESPECT TO THE
16 DECLARANT, AND THEN IT HAS, NO C.P.R. AND NO RESPIRATORS?
17 A. RIGHT.
18 Q. DID I READ THAT CORRECTLY?
19 A. RIGHT.
20 Q. DO YOU REMEMBER THE CIRCUMSTANCES SUCH THAT THEN YOU
21 SIGNED THIS DOCUMENT ON OR ABOUT OCTOBER 11 OF 1995?
22 A. NO. I DON'T UNDERSTAND FOR SURE WHAT THE DOCUMENT SAYS.
23 WHAT DOES IT SAY? LET'S GO THROUGH THAT AGAIN, PLEASE.
24 Q. SURE. I'LL JUST PUT IT BACK UP. AND IT'S A MEDICAL
25 TREATMENT PLAN AND THERE'S AN INDICATION BY DR. CUNNINGHAM,
948
1 WHO WAS THE TREATING PHYSICIAN YOU TESTIFIED ABOUT. HE'S
2 THE DOC UP IN LOGAN?
3 A. RIGHT.
4 Q. AND HE CERTIFIES OR IS INDICATING THAT ENNIS HAD
5 ALZHEIMER'S DISEASE.
6 A. UH-HUH.
7 Q. AND THEN APPARENTLY THERE IS A DIRECTION ABOVE YOUR
8 SIGNATURE LINE THAT SAYS, THE FOLLOWING CARE AND TREATMENT
9 OR WITHHOLDING OF TREATMENT IS DIRECTED WITH RESPECT TO THE
10 DECLARANT. AND THEN IS JUST WRITTEN IN, NO C.P.R., NO
11 RESPIRATORS?
12 A. RIGHT.
13 Q. MY QUESTION IS, DO YOU RECALL THE CIRCUMSTANCES THAT
14 PROMPTED YOU TO SIGN THIS DOCUMENT?
15 A. I DON'T. I DON'T EVEN REMEMBER.
16 Q. PARDON ME?
17 A. I DON'T REMEMBER.
18 Q. OKAY.
19 A. I DON'T REMEMBER.
20 Q. OKAY. LOOKING AT THAT, I JUST WANT TO ASK YOU ONE OTHER
21 QUESTION ABOUT IT. DO YOU SEE -- I'LL SHOW YOU THIS LINE
22 HERE, THESE TWO LINES.
23 A. RIGHT.
24 Q. IS THAT YOUR WRITING?
25 A. I DON'T THINK SO.
949
1 Q. OKAY. IT DOES APPEAR THIS IS CERTAINLY YOUR SIGNATURE;
2 IS THAT RIGHT?
3 A. THAT IS MY SIGNATURE.
4 Q. AND DID YOU WRITE IN "WIFE." DOES THAT APPEAR TO BE
5 YOURS?
6 A. WHAT IS THAT?
7 Q. IT SAYS "WIFE." IT'S JUST SOMEBODY WROTE IN "WIFE." I
8 WAS WONDERING WHETHER YOU DID THAT.
9 A. I DON'T KNOW.
10 Q. OKAY.
11 A. NO C.P.R., NO -- THAT'S -- THAT'S THE LIFE-SUSTAINING
12 SYSTEM, ISN'T IT? THAT DOESN'T MEAN NO FLUIDS, NO COMFORT
13 CARE, DOES IT?
14 Q. WELL, I'M NOT THE WITNESS AT THIS POINT. SO IT SAYS
15 WHAT IT SAYS.
16 MR. STIRBA: THAT'S ALL THE QUESTIONS I HAVE.
17 THE COURT: ANY REDIRECT?
18 MR. MAJOR: COUPLE OF THINGS, YOUR HONOR.
19 REDIRECT EXAMINATION
20 BY MR. MAJOR:
21 Q. MISS ALLDREDGE, I THINK WE'RE GOING TO BE TESTING YOUR
22 EYES HERE AGAIN IN A SECOND. LET ME ASK YOU THIS. YOU
23 INDICATED YOU STAYED AT THE HOSPITAL WITH ENNIS AFTER YOU
24 ARRIVED ON SATURDAY; IS THAT CORRECT?
25 A. RIGHT.
950
1 Q. DID YOU HAVE ANY OTHER CONVERSATIONS WITH DR. WEITZEL
2 AFTER YOU ARRIVED AT THE HOSPITAL?
3 A. I NEVER DID EVER SEE DR. WEITZEL.
4 Q. WHAT WAS ENNIS' CONDITION WHEN YOU ARRIVED AT THE
5 HOSPITAL?
6 A. SATURDAY MORNING?
7 Q. YES. SATURDAY MORNING.
8 A. HE WAS UNCONSCIOUS.
9 Q. DID HE EVER COME TO?
10 A. NO.
11 Q. WHAT, IF ANY, TYPE OF MOVEMENT DID YOU OBSERVE WITH HIM?
12 A. NONE.
13 Q. AND HOW LONG DID THAT CONDITION REMAIN?
14 A. HE PASSED AWAY SUNDAY MORNING AND WE SAT THERE BY HIS
15 SIDE AND HE WAS -- HE WAS OUT.
16 Q. NOW, I WANT TO SHOW YOU AGAIN -- WE'RE GOING TO TEST
17 YOUR EYES. I WANT TO SHOW YOU WHAT'S MARKED MED-0O17 WHICH
18 COMES FROM THE HOSPITAL GEROPSYCH UNIT, HOSPITAL RECORDS FOR
19 ENNIS. YOU CAN STEP DOWN. PERHAPS YOU CAN SEE THIS.
20 SPECIFICALLY IT STATES, SIGNED BY DR. WEITZEL. IT SAYS
21 ADDENDUM. SEE WHERE IT SAYS ADDENDUM? SPOKE WITH THE -- C
22 WITH AN ARROW ON TOP OF IT.
23 A. I CAN'T READ IT.
24 Q. IT SAYS ADDENDUM, AND THE C WITH THE ARROW MEANS "WITH."
25 SPOKE WITH WIFE EXTENSIVELY.
951
1 A. OKAY. NOW, READ THAT AGAIN.
2 Q. OKAY. IT SAYS -- WE'RE STARTING RIGHT HERE, IF I MIGHT
3 APPROACH. BEGINNING RIGHT HERE. "SPOKE WITH WIFE
4 EXTENSIVELY." DO YOU RECALL YOUR CONVERSATION WITH DR.
5 WEITZEL AS BEING EXTENSIVE?
6 A. I NEVER DID TALK TO DR. WEITZEL, EVER.
7 Q. ONLY ON THE TELEPHONE? ?
8 A. ON THE TELEPHONE ON FRIDAY NIGHT WAS THE ONLY TIME I
9 EVER TALKED TO DR. WEITZEL.
10 Q. HOW LONG DID THAT TELEPHONE CONVERSATION LAST?
11 A. PROBABLY ONE MINUTE.
12 Q. AND THEN IT GOES ON TO SAY, "SHE FEELS STRONGLY THAT NO
13 EXTRAORDINARY MEASURES SHOULD BE TAKEN TO PROLONG ENNIS'
14 LIFE."
15 A. RIGHT. BUT HE SHOULD BE MADE COMFORTABLE.
16 Q. OKAY. THEN IT GOES ON, ENNIS, GIVEN THE C.V. -- WHICH I
17 WILL INDICATE TO BE THE STROKE -- FOUND ON THE M.R.I. --
18 WHICH IS A TEST THEY RUN.
19 A. RIGHT.
20 Q. SHE REQUESTS THAT ALL -- SHE REQUESTS THAT WE -- AND D/C
21 IS DISCONTINUE I.V. AND GIVE COMFORT CARE. AND YOU KNOW THE
22 I.V. IS THE FLUID THAT GOES INTO THAT?
23 A. RIGHT. AND THAT SHOULD HAVE BEEN CONTINUED, SHOULDN'T
24 IT? SHOULDN'T HE HAVE --
25 Q. THAT'S THE QUESTION. DO YOU EVER RECALL HAVING THAT
952
1 CONVERSATION AND MAKING THAT STATEMENT?
2 A. I RECALL HIM SAYING THEY WOULD TAKE THE LIFE SUPPORT
3 SYSTEM OFF, AND I SAID OKAY.
4 Q. DID YOU EVER INTEND TO HAVE --
5 A. BUT I THOUGHT IT WOULD BE COMFORT CARE THAT HE WOULD --
6 LIKE YOU SAY, LIFE SUPPORT SYSTEM DIDN'T MEAN TO ME NO
7 COMFORT, NO LIQUIDS, NOTHING.
8 Q. DID YOU EVER INTEND TO HAVE HIS FLUIDS STOPPED?
9 A. NO.
10 Q. AND THEN LET ME SHOW YOU AGAIN REAL QUICK WHAT IS MARKED
11 AS MED RECORD-00095, AGAIN WHICH COMES FROM THE DAVIS
12 HOSPITAL MEDICAL RECORDS. AGAIN, THIS IS A NOTE BY
13 DR. WEITZEL INDICATING -- I'M SORRY. I THOUGHT I HAD IT
14 HERE. I GOT THE WRONG ONE. HANG ON ONE SECOND. HERE IT
15 IS. I APOLOGIZE. ON THIS NOTE IT ALSO INDICATES ORAL
16 MEDICATIONS WERE DISCONTINUED AND LENTA INSULIN WAS
17 DECREASED. DO YOU RECALL EVER HAVING A CONVERSATION WITH
18 DR. WEITZEL INDICATING THAT YOU WANTED HIS MEDICATIONS
19 STOPPED?
20 A. NO.
21 Q. DO YOU RECALL HAVING A CONVERSATION WITH DR. WEITZEL
22 INDICATING THAT YOU WANTED HIS INSULIN REDUCED?
23 A. NO.
24 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS.
25 A. NO, BECAUSE I'VE SEEN HIM BE AGITATED WITH THE INSULIN
953
1 TAKEN AWAY.
2 Q. (BY MR. MAJOR) YOU'VE SEEN SOME PROBLEMS WITH THE
3 INSULIN -- WHEN HE DIDN'T GET IT?
4 A. RIGHT. IF HE DIDN'T GET ENOUGH HE WOULD BE AGITATED.
5 Q. AND WHAT WOULD HAPPEN WHEN HE DIDN'T HAVE THE INSULIN?
6 A. GAVE HIM MORE INSULIN.
7 Q. BUT, I MEAN, WHAT WAS HIS PHYSICAL REACTION TO NOT
8 HAVING THE INSULIN?
9 A. HE WOULD JUST BE AGITATED, JUST --
10 Q. APPEAR TO BE IN PAIN, DISCOMFORT?
11 A. NO. I DON'T THINK ENNIS WAS IN PAIN.
12 Q. WELL, NO. I'M TALKING ABOUT EARLIER ON WHEN HE DIDN'T
13 HAVE HIS INSULIN BEFORE HE GOT TO THE HOSPITAL, LET'S SAY.
14 A. I JUST REMEMBER ONE TIME WE WENT TO THE CAFE AND HE WAS
15 HUNGRY AND SO HE WAS AGITATED AND HE JUST COULDN'T GET THE
16 FOOD FAST ENOUGH. THAT'S WHAT I MEAN BY THE AGITATION.
17 Q. AND YOU DIDN'T WANT THAT TO HAPPEN ON THIS OCCASION?
18 A. RIGHT.
19 MR. MAJOR: WE HAVE NO FURTHER QUESTIONS.
20 MR. STIRBA: JUST A COUPLE MORE.
21 RECROSS-EXAMINATION
22 BY MR. STIRBA:
23 Q. MRS. ALLDREDGE, AFTER YOU TALKED WITH DR. WEITZEL AND HE
24 REPORTED WHAT HE REPORTED, I ASSUME YOU AND THE OTHER FAMILY
25 MEMBERS THOUGHT THAT ENNIS WAS DYING; IS THAT RIGHT?
954
1 A. WELL, YES.
2 Q. AND IT'S TRUE THAT GIVEN THAT FACT YOU WANTED HIM TO BE
3 KEPT COMFORTABLE; IS THAT RIGHT?
4 A. YEAH.
5 MR. STIRBA: THAT'S ALL I HAVE. THANK YOU.
6 THE COURT: ANYTHING FURTHER?
7 MR. MAJOR: NOTHING FURTHER.
8 THE COURT: MAY THIS WITNESS BE EXCUSED?
9 MR. MAJOR: SHE MAY.
10 THE COURT: OKAY. THANK YOU.
11 ARE YOU READY FOR THE NEXT WITNESS?
12 MR. WILSON: WE ARE, YOUR HONOR. WE HAVE THE
13 WITNESS READY TO COME IN, BUT COULD I APPROACH THE BENCH
14 WITH COUNSEL FOR A MINUTE?
15 (BENCH CONFERENCE TAKEN.)
16 THE COURT: LADIES AND GENTLEMEN, I THINK WHAT
17 WE'RE GOING TO DO BEFORE THIS NEXT WITNESS COMES, RATHER
18 THAN GOING -- HAVING A WITNESS START AND GO TEN MINUTES AND
19 THEN TAKE A BREAK, LET'S TAKE A BREAK NOW AND THEN LET'S
20 COME BACK -- ACTUALLY I HAVE A FEW THINGS I NEED TO TALK TO
21 THE ATTORNEYS ABOUT. SO LET'S COME BACK ABOUT 20 MINUTES TO
22 3. I THINK WE HAVE TWO OTHER WITNESSES TODAY THAT WE'RE
23 GOING TO BE HEARING. WE'LL GET THOSE DONE DEFINITELY, MAYBE
24 BEFORE FIVE O'CLOCK. LET'S COME BACK, THE JURY, AT THAT
25 TIME.
955
1 BEFORE YOU LEAVE I HAVE TO TELL YOU THAT IT'S YOUR DUTY
2 NOT TO -- IT'S YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES OR
3 TO CONVERSE WITH OR ALLOW YOURSELVES TO BE ADDRESSED BY ANY
4 OTHER PERSON ON THE SUBJECT OF THIS TRIAL. IT'S ALSO YOUR
5 DUTY NOT TO FORM OR EXPRESS AN OPINION UNTIL THE CASE IS
6 FINALLY SUBMITTED TO YOU AFTER YOU'VE HEARD ALL THE
7 EVIDENCE.
8 WE'LL BE IN RECESS UNTIL 20 TO.
9 (WHEREUPON, THE JURY LEAVES THE COURTROOM.)
10 THE COURT: PLEASE BE SEATED. THE RECORD SHOULD
11 REFLECT THAT THE JURY HAS LEFT THE COURTROOM.
12 MR. WILSON, YOU HAVE SOME THINGS YOU WANT TO DISCUSS?
13 MR. WILSON: YES, YOUR HONOR. MAY I APPROACH THE
14 COURT?
15 THE COURT: YES.
16 MR. WILSON: I KNOW WE'VE BEEN DEALING THESE PAST
17 FEW DAYS WITH THE PROBLEM RELATED TO THE ADMISSION OF
18 CERTAIN HISTORICAL MEDICAL RECORDS AS TO EACH ONE OF THESE
19 ALLEGED VICTIMS. AND IN REVIEWING THAT MATTER THIS MORNING,
20 I PUT TOGETHER THIS PROPOSED STIPULATION. I HAVE PROVIDED
21 COUNSEL WITH A COPY OF THAT JUST NOT LONG AGO.
22 BUT WHAT I'M SUGGESTING TO THE COURT FOR PURPOSES OF
23 MAINTAINING THE INTEGRITY OF THE PROCESS, OUR MAIN OBJECTION
24 TO THE MEDICAL RECORDS BEING ADMITTED WENT TO THE FACT THAT
25 THERE WAS -- THERE WAS NO CERTIFICATION AS TO THOSE RECORDS
956
1 BEING ACCURATE AND COMPLETE COPIES OF THE RECORDS THAT THE
2 CUSTODIAN HAD. SO WHAT I'M SUGGESTING IS THAT WE WOULD BE
3 WILLING TO STIPULATE TO THE ADMISSION OF THOSE EXHIBITS AS
4 PROFFERED BY COUNSEL WITH THE UNDERSTANDING THAT EITHER A
5 CERTIFICATE FROM THE CUSTODIAN BE ATTACHED THERETO
6 INDICATING THAT THEY ARE ACCURATE COPIES EITHER FOR THE
7 COMPLETE RECORDS THAT WAS IN THEIR FILE OR FOR THE TIME
8 PERIOD OF WHICH THE RECORDS ARE REPRESENTED. THIS WOULD
9 APPLY BOTH TO US AND THE DEFENDANT.
10 AND WE HAVE SOME RECORDS, HISTORICAL RECORDS, FROM THE
11 NURSING HOMES THAT WE WOULD BE ASKING TO -- WE MAY OR MAY
12 NOT -- BUT IF WE DO ASK WE WOULD SUBMIT THOSE UNDER THAT
13 PARTICULAR PROVISION.
14 WE WOULD THEN REQUEST THAT THOSE EXHIBITS -- AND I
15 THINK THEY HAVE ALL BEEN NUMBERED SO THAT YOU CAN EASILY
16 IDENTIFY THE PARTICULAR EXHIBIT YOU MAY WANT TO REFER TO AT
17 A LATER DATE.
18 WE'RE ALSO REQUESTING THAT AS A CONDITION OF THIS
19 STIPULATION THAT WE BE ALLOWED AT THE CONCLUSION OF TRIAL TO
20 PREPARE AND TO PUBLISH TO THE JURY A CONDENSED SET OF THESE
21 MEDICAL RECORDS THAT WE FEEL ARE PERTINENT TO THIS CASE, OR
22 PERTINENT TO EACH SIDE OF THE CASE. AND THAT THAT CONDENSED
23 RECORD WOULD CONSIST ONLY OF ADMITTED EXHIBITS, EXHIBITS
24 THAT HAD BEEN ADMITTED IN THESE COURT PROCEEDINGS. NOW,
25 THAT WOULD INCLUDE NOT ONLY THE MEDICAL RECORDS THEMSELVES,
957
1 BUT OTHER EXHIBITS THAT THE COURT HAD PROPERLY ADMITTED INTO
2 EVIDENCE. WE FEEL THIS WAY, AT LEAST IN LOOKING AT ALL
3 THESE RECORDS, IT'S OVERWHELMING. AND IF YOU TAKE THOSE
4 RECORDS INTO THE JURY ROOM IT APPEARS TO ME THERE'S THE
5 POTENTIAL NOT ONLY TO CONFUSE, BUT TO OVERWHELM THEM AS TO
6 WHAT EACH SIDE IS SAYING THE NATURE OF THEIR SIDE OF THE
7 CASE IS.
8 SO THIS IS THE PROFFER I'M MAKING AS TO A STIPULATION
9 AS TO THESE RECORDS. THE LAST ITEM OF THAT PROFFER WOULD BE
10 TO THE EFFECT THAT THOSE PARTICULAR CONDENSED EXHIBITS WOULD
11 NOT BE PUBLISHED TO THE JURY UNTIL AFTER THE CONCLUSION OF
12 THE CLOSING ARGUMENTS. I'M NOT SAYING THAT YOU COULDN'T USE
13 THEM IN CLOSING ARGUMENTS. I'M JUST SAYING I DON'T THINK
14 IT'S APPROPRIATE TO PUBLISH THEM TO THE JURY AS AN EXHIBIT
15 BECAUSE MOST OF THE TIME YOU ARE NOT GOING TO BE LOOKING AT
16 THE EXHIBITS EXCEPT AS COUNSEL MAY REFER TO THEM IN CLOSING
17 ARGUMENTS.
18 THE COURT: OKAY. MR. STIRBA?
19 MR. STIRBA: I JUST GOT IT. BUT, YOU KNOW, WE'RE
20 BACK IN THE SAME PROBLEM THAT I THOUGHT I ALREADY
21 ARTICULATED WAS NEVER GOING TO BE SOLVABLE BEFORE, AND THAT
22 IS THEY CAN TRY WHATEVER CASE THEY WANT TO TRY. THEY CAN
23 PUT ON WHATEVER EVIDENCE THEY WANT TO PUT ON. IF THEY WANT
24 TO CALL EVERY CUSTODIAN IN THE WORLD, IF THAT'S WHERE WE'RE
25 GOING TO BE, FINE. I CAN DO THAT VERY SAME THING, TOO. I'M
958
1 ENTITLED TO GO BY THE RULES OF EVIDENCE AND PUT ON WHATEVER
2 EVIDENCE IS ADMISSIBLE IN THE -- IN MY DEFENSE OF MY CLIENT.
3 AND I WILL DO THAT AND THEN IF WE HAVE TO PUT ON CUSTODIAN
4 AFTER CUSTODIAN AFTER CUSTODIAN, LAY BUSINESS RECORDS
5 FOUNDATION OR MEDICAL RECORDS FOUNDATION UNDER 803, I'LL DO
6 THAT. IT'S NOT A PROBLEM.
7 THIS IS THE FIRST CASE IN ALMOST 25 YEARS OF THE
8 PRACTICE OF LAW I HAVE EVER HAD ANYBODY RAISE AN ISSUE AS TO
9 OFFERING OF MEDICAL RECORDS. I MEAN, USUALLY IT'S JUST
10 OFFERED. THEY ARE IN. NOBODY WANTS THE CUSTODIANS TO COME
11 IN AND TESTIFY TO IT BECAUSE, QUITE FRANKLY, IT'S A WASTE OF
12 TIME AND ENERGY AND MONEY.
13 AND SO THAT'S WHY I MADE THE SUGGESTION YESTERDAY THAT
14 THEY PUT IN WHATEVER MEDICAL RECORDS THEY WANT; WE PUT IN
15 WHATEVER MEDICAL RECORDS WE WANT. THE PARTIES CAN USE THEM
16 HOWEVER THEY WANT. AND WE GO DOWN THE ROAD. AND IT SEEMS
17 TO ME THAT MAKES A WHOLE HECK OF A LOT OF SENSE. SO THAT IS
18 SORT OF MY RESPONSE TO THIS PROPOSAL.
19 I'M NOT INTERESTED ANYMORE IN EVERY OTHER DAY GOING
20 OVER A NEW CONCEPT ABOUT THE EVIDENCE. I'M FULLY PREPARED
21 TO SAY, FINE. I HAVE MY EXHIBITS. AT THE APPROPRIATE TIME
22 I WILL CALL MY CUSTODIANS. I'LL LAY MY FOUNDATION. I'LL
23 OFFER THE EXHIBIT AND THE COURT WILL RULE. IF THAT'S WHERE
24 WE ARE, THAT'S WHERE WE ARE.
25 IT'S A LOT EASIER FOR ME, QUITE FRANKLY, TO DO IT THIS
959
1 WAY. THEY ARE GOING TO BE PUT IN THE SAME POSITION. THEY
2 ARE GOING TO HAVE TO CALL ALL THEIR CUSTODIANS AND WE'LL GO
3 THROUGH THAT DRILL. BECAUSE IT JUST SEEMS TO ME ANY OTHER
4 WAY MAKES NO SENSE WHATSOEVER BECAUSE WE'RE DOWN TO CERTAIN
5 PARTIES WANT CERTAIN THINGS IN. CERTAIN PARTIES WANT OTHER
6 THINGS IN. CERTAIN PARTIES WANT THIS KIND OF HIGHLIGHTED.
7 CERTAIN PARTIES WANT THAT KIND OF HIGHLIGHTED, AND THOSE ARE
8 TACTICAL DECISIONS THAT APPROPRIATELY THE STATE WILL MAKE
9 FOR WHATEVER PURPOSES THEY WANT TO MAKE AND APPROPRIATELY
10 SO. AND THE DEFENSE WILL MAKE THEM FOR THE DEFENSE PURPOSES
11 AND APPROPRIATELY SO, TOO. SO IT'S NEVER GOING TO BE
12 RESOLVED BY SOMEHOW AN AGREEMENT AS TO WHAT SHOULD OR
13 SHOULDN'T.
14 THE FINAL THING I WANT TO SAY, 'CAUSE THIS HAS COME UP
15 REPEATEDLY IN THIS CASE. REPEATEDLY, NOT FROM ME, BUT FROM
16 THE OTHER SIDE. THAT THE JURY WILL BE OVERWHELMED. THAT
17 THE JURY CAN'T UNDERSTAND. THAT THE JURY JUST CAN'T DEAL
18 WITH THIS. THAT THE JURY -- QUITE FRANKLY, I HAVE A LOT OF
19 FAITH IN THE JURY. I HAVE A LOT OF FAITH IN THE JURY
20 SYSTEM. SO I'M SURE AT THE END OF THIS TRIAL CERTAINLY MY
21 JOB WILL BE TO MAKE IT ABUNDANTLY CLEAR WHAT THE DEFENSE'S
22 CASE IS. AND I PRESUME THE STATE WILL TRY IN EARNEST TO
23 MAKE IT ABUNDANTLY CLEAR WHAT THE STATE'S CASE IS. I HAVE
24 NO QUESTION IN MY MIND WHEN WE ARE THROUGH WITH THIS THAT
25 JURY IS GOING TO UNDERSTAND THIS CASE.
960
1 IT SEEMS TO ME THAT IT'S COUNSEL'S REQUIREMENT AND
2 OBLIGATION TO DO THAT VERY THING. AND I'M NOT AFRAID THAT
3 THEY ARE GOING TO BE OVERWHELMED, QUITE FRANKLY, 'CAUSE I
4 THINK WHAT'S GOING TO HAPPEN, AS THE COURT HAS ALREADY
5 INDICATED, THERE WILL BE SOME RECORDS THAT WILL BE
6 IMPORTANT. AND I'M SURE THAT COUNSEL FROM BOTH SIDES WILL
7 EMPHASIZE THOSE RECORDS. AND WHEN THE JURY GOES BACK,
8 DEPENDING ON HOW THEY WANT TO HANDLE THIS, THEY MAY GO
9 THROUGH EVERY MEDICAL BIT OF EVIDENCE OR THEY MAY NOT. WHO
10 KNOWS. BUT, QUITE FRANKLY, WHO CARES AS LONG AS THEY DO
11 THEIR JOB, AS I'M SURE THEY WILL CONSCIENTIOUSLY AND
12 PURSUANT TO THE COURT'S INSTRUCTIONS. SO I'M NOT TOO
13 CONCERNED ABOUT THAT.
14 YOU KNOW, THIS IS NOT THE FIRST CASE WHERE THERE IS
15 QUITE A FEW DOCUMENTS. I MEAN, THIS IS NOT UNHEARD OF.
16 THIS IS THE NATURE OF THE CASE. WE HAVE ESSENTIALLY FIVE
17 CASES IN ONE AND IT DOES REQUIRE A CERTAIN AMOUNT OF
18 DOCUMENTATION. BUT I'M NOT AFRAID CERTAINLY THAT THIS JURY
19 ISN'T GOING TO UNDERSTAND IT. AND I THINK WE OUGHT TO HAVE
20 CONFIDENCE AND FAITH THAT CERTAINLY AT THE APPROPRIATE TIME
21 THEY WILL.
22 AND THAT'S WHY I'VE MADE THIS SUGGESTION THAT EVERYBODY
23 GET WHATEVER THEY WANT IN. AND THEN THESE GUYS CAN DECIDE
24 WHAT THEY WANT TO DO WITH THE DOCUMENTS AND WE MAKE THE SAME
25 DECISIONS AND EVERYBODY GOES DOWN THE ROAD.
961
1 THAT'S JUST MY COMMENT, JUDGE.
2 THE COURT: OKAY. SO I TAKE IT FROM WHAT YOU ARE
3 SAYING, YOU ARE NOT AGREEING TO THE STIPULATION?
4 MR. STIRBA: THAT'S TRUE.
5 THE COURT: THERE'S TWO WAYS OF GETTING EVIDENCE
6 IN. ONE IS TO OFFER IT AND THE OTHER IS DO IT BY
7 STIPULATION. SO DOESN'T SOUND LIKE WE HAVE A STIPULATION.
8 MR. WILSON: WELL, I GUESS, YOUR HONOR, I'M A
9 LITTLE BIT SURPRISED BY COUNSEL 'CAUSE THE ONLY THING I WAS
10 REQUESTING WAS SOME KIND OF AN AFFIDAVIT FROM THEM ATTACHED
11 TO THESE DOCUMENTS SAYING -- TO THE EFFECT THAT THAT'S A
12 COMPLETE SET OF RECORDS.
13 THE COURT: THAT'S YOUR FIRST PARAGRAPH. THE REST
14 OF IT SAYS ABOUT THESE CONDENSED THINGS AND NOT GIVING ALL
15 THE RECORDS TO THE JURY.
16 MR. WILSON: I DIDN'T SAY I DIDN'T WANT TO GIVE
17 ALL THE RECORDS TO THE JURY. I STILL SAY THEY CAN --
18 THE COURT: OKAY. GIVE ALL THE RECORDS AND A
19 CONDENSED SET.
20 MR. WILSON: AND THEN A CONDENSED SET.
21 MR. STIRBA: THERE IS A STIPULATION. I'M PREPARED
22 TO STIPULATE RIGHT HERE AND NOW THEY CAN OFFER THEIR MEDICAL
23 RECORDS AND THEY ARE IN. NO OBJECTION FROM THE DEFENSE. WE
24 OFFER OUR MEDICAL RECORDS. THEY SEE THEM, WE'VE GIVEN THEM,
25 THEY GOT THEM, AND THEY HAVE NO OBJECTION. THEY ARE IN.
962
1 THAT'S MY STIPULATION.
2 THEN WE DON'T HAVE TO WORRY ABOUT -- YOU SEE, THE OTHER
3 THING, JUDGE, YOU GOT TO REMEMBER, WE'RE IN THE MIDDLE OF A
4 TRIAL. YOU GOT THREE PEOPLE HERE DOING THIS TRIAL FOR THE
5 DEFENSE. WE DON'T HAVE A LOT OF RESOURCES. WE DON'T HAVE A
6 LOT OF TIME. IT'S VERY DIFFICULT FOR US TO GO OUT AND NOW
7 GET ADDITIONAL AFFIDAVITS AND ADDITIONAL MATERIALS WHICH
8 UNDER THE RULES OF EVIDENCE, QUITE FRANKLY, WE DON'T HAVE TO
9 DO ANYWAY. IT'S MUCH EASIER TO SUBPOENA A CUSTODIAN AND
10 HAVE THEM BRING THE RECORDS IN AT THE APPROPRIATE TIME --
11 THE COURT: WHAT I UNDERSTAND THE PARAGRAPH A OF
12 THIS PROPOSED STIPULATION WOULD BE IS THAT YOU WOULDN'T HAVE
13 TO CALL IN THE CUSTODIAN. YOU WOULD JUST HAVE AN ATTORNEY
14 FROM EITHER THE DEFENDANT OR THE PLAINTIFF, BUT WOULD JUST
15 SAY THESE ARE THE RECORDS THAT WE SUBPOENAED AND RECEIVED
16 FROM THE SOURCE. IS THAT WHAT YOU ARE SAYING?
17 MR. WILSON: THAT IS WHAT I'M SAYING.
18 MR. STIRBA: WHY CAN'T I MAKE THAT REPRESENTATION
19 AS AN OFFICER OF THE COURT? I THINK I'VE DONE IT ALREADY.
20 THE COURT: WELL, I THINK THAT THE QUESTION -- WHAT
21 I UNDERSTAND THAT WE'RE INTERESTED IN -- IS TO MAKE CERTAIN
22 THAT WE HAVE THE COMPLETE RECORDS FROM WHATEVER SOURCE THAT
23 WE HAVE, WHETHER IT'S THE DOCTOR. A PERFECT EXAMPLE IS THE
24 OTHER DAY WHERE THE DOCTOR STUBBS SAID, NO, THERE'S THESE
25 OTHER 14 OR 15 PAGES THAT SHOULD BE IN THERE.
963
1 OKAY. IF THE WITNESS IS HERE WE ASK THE WITNESS, ARE
2 THOSE YOUR DOCUMENTS? THEY SAY SOMETHING ELSE, FINE. IF
3 THERE IS NO QUESTION AND THEY HAVE BEEN SUBPOENAED AND
4 THAT'S WHAT YOU'VE RECEIVED, IF PEOPLE CANNOT SAY THAT, I
5 DON'T SEE A REASON DOING AN AFFIDAVIT. IF YOU ARE STATING
6 IT IN OPEN COURT, THAT'S WHAT IT IS. I EXPECT IF YOU WERE
7 NOT TELLING ME THE TRUTH, THEN THAT'S GOING TO COME OUT
8 LATER. IT DOESN'T MATTER WHETHER IT'S BY AN AFFIDAVIT OR IF
9 YOU REPRESENTED TO ME THAT THESE ARE THE RECORDS AND YOU
10 GAVE ME HALF THE RECORDS, SOMEBODY'S HEAD WILL FLY, IF
11 THAT'S THE SITUATION. AND I DON'T WANT TO DO THAT.
12 SO ON THE ONE STEP, IF PEOPLE ARE WILLING TO SIMPLY SAY
13 THESE ARE THE THINGS AND REPRESENT THAT TO ME IN OPEN COURT,
14 I HAVE NO PROBLEM WITH THAT. I'M NOT GOING TO GO WITH
15 SOMETHING ELSE THAT WE HAVE TO SAY. AND THAT'S YOU ARE NOT
16 TELLING THE TRUTH --
17 MR. WILSON: FINE, YOUR HONOR. I DON'T HAVE ANY
18 PROBLEM WITH THAT EITHER AS LONG AS WE HAVE SOMETHING ON THE
19 RECORD AND THAT WAS MY CONCERN BECAUSE --
20 THE COURT: WELL, YESTERDAY ON THE RECORD WE HEARD
21 FROM MR. STIRBA THESE ARE THE RECORDS THAT THEY HAD
22 SUBPOENAED FROM THE PEOPLE, FROM THE VARIOUS DOCTORS. AND
23 SO I THOUGHT THAT WAS ON THE RECORD. AND SO HE SAID IT
24 AGAIN HERE TODAY, SO THAT'S HIS RECORD.
25 MR. STIRBA: I'LL SUPPLY COUNSEL WITH THE
964
1 SUBPOENAS, IF THEY WANT TO SEE THEM. THAT'S --
2 THE COURT: SO AS TO THAT ISSUE, IT SEEMS TO ME
3 THAT IF EITHER ONE OF YOU SUBPOENAED RECORDS AND YOU HAVE
4 THEM, THEN YOU REPRESENT THAT THOSE ARE THE SUBPOENAED
5 RECORDS THAT YOU RECEIVED. WE'RE NOT GOING TO HAVE A
6 WITNESS HERE EITHER. THE WITNESS -- IF THE WITNESS IS HERE
7 THEY CAN VERIFY THOSE AND SAY YES, THEY ARE COMPLETE. AND
8 IF THE WITNESS ISN'T HERE, THAT'S WHAT YOU GOT. THAT'S WHAT
9 YOU RECEIVED IN RESPONSE TO YOUR SUBPOENA.
10 THAT SOUNDS FINE TO ME. IF PEOPLE DON'T WANT TO AGREE
11 WITH THAT, THEN YOU CAN PUT THEM ON. THE WAY -- YOU SHOULD
12 PUT ANOTHER WAY TO PUT THEM IN IF THEY ARE NOT GOING TO BE
13 STIPULATED. YOU CALL EVERY PERSON WHO'S THE CUSTODIAN. YOU
14 SAY -- YOU LAY A FOUNDATION. ARE YOU THE CUSTODIAN? ARE
15 THESE THE RECORDS? ARE THEY KEPT IN THE REGULAR COURSE OF
16 YOUR WORK? WERE THEY MADE AT OR NEAR THE TIME? WHATEVER
17 THE 803 FOUNDATION IS FOR HEARSAY EXCEPTION, WE CAN DO THAT.
18 THAT'S NOT GOING TO TAKE, YOU KNOW, A LOT OF TIME. ALL IT
19 DOES, IT MEANS WE HAVE TO BRING FIVE WITNESSES TO TAKE FIVE
20 MINUTES TO SAY THAT'S WHAT THE DOCUMENT IS.
21 AS IT RELATES TO CONDENSED SETS, YOU KNOW, YOU GUYS
22 WANT TO AGREE ON HAVING A CONDENSED SET, THAT'S FINE, YOU
23 KNOW, BUT -- YOU KNOW, I CAN'T ORDER THAT UNLESS, YOU KNOW,
24 THAT'S WHAT YOU ARE ASKING ME.
25 MR. WILSON: I WOULD IMAGINE THAT THAT WOULD BE
965
1 AVAILABLE REGARDLESS OF THE STIPULATION, YOUR HONOR, AS LONG
2 AS --
3 THE COURT: AS SOME SORT OF SUMMARY. WHAT ARE YOU
4 SAYING? AS A SUMMARY?
5 MR. WILSON: AS A SUMMARY. AS LONG AS THAT -- AS
6 LONG AS THAT RECORD WAS TOTALLY MADE UP OF THOSE EXHIBITS
7 THAT HAD BEEN ACCEPTED BY THE COURT, IT WOULD SEEM TO ME TO
8 BE APPROPRIATE.
9 THE COURT: OKAY. WELL, THERE'S A DIFFERENCE
10 BETWEEN A SUMMARY AND BITS AND PIECES.
11 MR. WILSON: EXCUSE ME. CONDENSED SET OF THOSE
12 RECORDS.
13 THE COURT: I GUESS WE'LL HAVE TO ADDRESS THAT WHEN
14 WE SEE WHAT WE HAVE TO DO. SO --
15 MR. STIRBA: FOR THE COURT'S HELP, I STIPULATE AND
16 AGREE WITH THE COURT'S, AS I UNDERSTAND IT, RECOMMENDATION
17 OR SUGGESTION. THAT THE STIPULATION SHOULD BE WE REPRESENT
18 THIS IS WHAT WE GOT PURSUANT TO SUBPOENA AND WE OFFER IT.
19 AND THAT'S WHAT I THOUGHT I'D BEEN DOING. I HAVE NO PROBLEM
20 WITH THAT AND I HAVE NO PROBLEM WITH THE STATE DOING IT THE
21 SAME WAY. THAT'S FINE. I'VE NEVER REALLY QUESTIONED ANY OF
22 THESE ISSUES, QUITE FRANKLY.
23 THE COURT: OKAY. WELL, THEN MAYBE AFTER THE JURY
24 LEAVES TODAY WE'LL JUST GO THROUGH EACH ONE OF THESE
25 EXHIBITS TO MAKE SURE THAT WE HAVE A QUESTION -- IF THERE'S
966
1 ANY OTHER QUESTIONS. I GUESS IF THERE ISN'T ANY OTHER
2 QUESTION THEN THEY CAN BE OFFERED, UNLESS THERE'S A
3 REQUIREMENT EITHER SIDE WANTS THE CUSTODIAN HERE BEFORE THEY
4 ARE RECEIVED.
5 MR. WILSON: JUST PERTAINS TO MEDICAL RECORDS ONLY.
6 THE COURT: WELL, THAT'S WHAT WE'VE BEEN TALKING
7 ABOUT. I DON'T KNOW, YOU KNOW, OF ANY OTHER RECORD. OKAY.
8 AND THEN YOU HAVE THESE TWO DOCTORS. IS THAT WHAT WE HAVE?
9 MR. WILSON: WE DO, YOUR HONOR.
10 THE COURT: ALL RIGHT. THEN I ASKED THE JURY TO BE
11 BACK -- WE DON'T HAVE A LONG BREAK -- BE BACK HERE AT 2:40.
12 MS. BARLOW: YOUR HONOR, I'M HANDING TO COUNSEL AND
13 TO THE COURT A BENCH MEMORANDUM. IT'S NOT A MOTION. IT'S A
14 BENCH MEMORANDUM THAT'S JUST CASE LAW ON A CERTAIN AREA.
15 (WHEREUPON, COURT WAS IN RECESS.)
16 THE COURT: THE RECORD WILL REFLECT THAT THE
17 ATTORNEYS, THE DEFENDANT, AND THE JURY ARE ALL PRESENT.
18 I BELIEVE THERE'S ONE LAST THING, MR. STIRBA, YOU ASKED
19 ON PLAINTIFF'S EXHIBIT -- WELL, TO RESERVE YOUR RESPONSE
20 WHETHER IT SHOULD BE ADMITTED OR NOT. I DON'T KNOW IF
21 THERE'S ANY QUESTIONS ASKED REGARDING IT.
22 MR. STIRBA: WELL, I DON'T THINK THERE'S ADEQUATE
23 FOUNDATION LAID, YOUR HONOR.
24 MR. WILSON: I THINK, YOUR HONOR, SHE TESTIFIED AS
25 TO IT WAS --
967
1 THE COURT: WHAT IS THE PICTURE SUPPOSED TO
2 REPRESENT? IS IT THE TIME OR SHORTLY BEFORE THE DEATH OR A
3 PICTURE OF HIM AT SOME TIME IN HIS LIFE? SHE DIDN'T SAY
4 WHEN.
5 MR. WILSON: SHE DIDN'T, AND I WAS JUST LOOKING FOR
6 HER. MR. MAJOR NEGLECTED TO FORMULATE THAT FOUNDATION. THE
7 ONLY THING I WOULD REPRESENT TO THE COURT IS THAT IT IS
8 OBVIOUSLY A PICTURE OF HER HUSBAND. AS TO WHEN IT WAS
9 TAKEN, I CAN'T ANSWER.
10 THE COURT: WE CAN DISCUSS THAT LATER. WOULD YOU
11 LIKE TO CALL THE NEXT WITNESS?
12 MR. WILSON: THANK YOU, YOUR HONOR. WE WOULD
13 CALL -- MAY I REMOVE THE EXHIBIT FROM THE BOARD? WE WOULD
14 CALL DR. STEVENS TO THE STAND AT THIS TIME.
15 GREGORY STEVENS,
16 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
17 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
18 DIRECT EXAMINATION
19 BY MR. WILSON:
20 Q. DR. STEVENS, WOULD YOU STATE YOUR FULL NAME, PLEASE?
21 A. GREGORY PAUL STEVENS.
22 Q. AND WHERE ARE YOU EMPLOYED, SIR?
23 A. I PRACTICE IN HOLLADAY NEAR THE COTTONWOOD ON HIGHLAND
24 DRIVE AND 5600 SOUTH.
25 Q. CAN YOU GIVE US A BRIEF RUNDOWN AS TO YOUR EDUCATIONAL
968
1 BACKGROUND?
2 A. I GRADUATED FROM THE UNIVERSITY OF UTAH. ATTENDED
3 MEDICAL SCHOOL AT UNIVERSITY OF UTAH AND DID MY RESIDENCY
4 THERE AS WELL. THEN PRACTICED FOR 11 YEARS IN THE MESA,
5 ARIZONA AREA AND RETURNED HERE IN 1994 TO PRACTICE INTERNAL
6 MEDICINE.
7 Q. WHEN DID YOU GRADUATE FROM THE UNIVERSITY MEDICAL
8 SCHOOL?
9 A. 1980.
10 Q. OKAY. AND YOUR RESIDENCY WAS COMPLETED WHEN?
11 A. 1983.
12 Q. ARE YOU BOARD CERTIFIED IN ANY SPECIALTIES?
13 A. I'M BOARD CERTIFIED IN INTERNAL MEDICINE, YES.
14 Q. AND WHEN DID THAT OCCUR?
15 A. 1983, SEPTEMBER.
16 Q. SO YOU'VE ESSENTIALLY BEEN IN PRACTICE SOME 17 YEARS
17 NOW?
18 A. CORRECT.
19 Q. ARE YOU ASSOCIATED WITH ANY OTHER -- EXCUSE ME. WHERE
20 IS YOUR OFFICE LOCATED?
21 A. OFFICE IS AT 1955 EAST 5600 SOUTH, AND I'M ASSOCIATED
22 WITH INTERMOUNTAIN HEALTH CARE AS A PHYSICIAN WITH
23 INTERMOUNTAIN HEALTH CARE.
24 Q. IS THAT A CLINIC THAT YOU OPERATE AT THAT LOCATION?
25 A. IT'S A GROUP OF SIX INTERNISTS THERE THAT SERVES THE
969
1 HOLLADAY AREA.
2 Q. OKAY. ARE YOU FAMILIAR WITH AN INDIVIDUAL BY THE NAME
3 OF JUDITH LARSEN?
4 A. YES, I AM.
5 Q. AND COULD YOU TELL US WHAT YOUR RELATIONSHIP IS WITH
6 JUDITH LARSEN?
7 A. JUDITH'S SON, MERLIN, HAS BEEN A LIFELONG FRIEND OF MY
8 FATHER-IN-LAW, AND WHEN I MOVED BACK FROM ARIZONA I WAS
9 ASKED BY MERLIN IF I WOULD SEE AND TAKE CARE OF HIS MOTHER
10 JUDITH. I SAW HER FOR THE FIRST TIME AFTER SHE HAD SUFFERED
11 A STROKE. SHE SUFFERED THE STROKE IN JANUARY. I SAW HER IN
12 FEBRUARY OF 1995 FOR THE FIRST TIME.
13 Q. AND HAVE YOU HAD AN OPPORTUNITY, SIR, TO REVIEW THE
14 MEDICAL RECORDS MAINTAINED AT YOUR CLINIC?
15 A. YES, I HAVE, AND I BROUGHT THEM WITH ME.
16 Q. OKAY. AND THESE MEDICAL RECORDS COVER WHAT PERIOD OF
17 TIME?
18 A. ACTUALLY THERE WERE SOME MEDICAL RECORDS FROM HER
19 PREVIOUS PHYSICIAN. WHEN I CAME TO SALT LAKE I JOINED THE
20 SALT LAKE CLINIC AND THEY MAINTAINED JUST ONE CHART, WHICH
21 DR. WESTERMANN HAD BEEN CARING FOR HER AT MEMORIAL CLINIC.
22 HIS RECORDS ARE IN THIS MASTER RECORD AS WELL AND THEY GO
23 BACK TO 1989. BUT SPECIFICALLY I HAVE MY RECORDS FOR THE
24 YEAR OF 1995 WHEN I WAS TAKING CARE OF HER.
25 Q. SO SHE CAME TO YOU IN FEBRUARY OF 1995?
970
1 A. CORRECT.
2 Q. AFTER HAVING SUFFERED A STROKE IN JANUARY; IS THAT
3 CORRECT?
4 A. CORRECT.
5 Q. CAN YOU DESCRIBE FOR US THE INITIAL VISIT AND WHAT, IF
6 ANYTHING, WAS DONE TO EVALUATE HER SITUATION AT THAT TIME?
7 A. OKAY. SHE WAS BROUGHT IN BY HER SON AND IN MY NOTE I
8 SPECIFICALLY SAY THAT SHE WAS NOT HAPPY TO BE THERE. SHE
9 APPARENTLY BEFORE HER STROKE, ACCORDING TO THE EARLIER
10 RECORDS, HAD BEEN CARING FOR HERSELF AT HOME. AFTER THE
11 STROKE SPENT SOME TIME IN A CARE CENTER. THE FAMILY WAS AT
12 THE POINT OF TRYING TO GET HER INTO A FOSTER CARE SETTING
13 AND WANTED ME TO TAKE CARE OF HER IN THE FOSTER CARE
14 SETTING. SHE WOULD SPEAK IN SHORT SENTENCES, WAS CONFUSED,
15 BUT ABLE TO GET AROUND BY HERSELF.
16 MY EXAMINATION REVEALED HER TO BE A LITTLE BIT DROWSY.
17 SHE HAD JUST BEEN STARTED ON AN ANTIDEPRESSANT BY THE NAME
18 OF ZOLOFT AND AT THAT EVALUATION I FELT THAT THAT MIGHT BE
19 THE CAUSE OF THE DROWSINESS, AND I DISCONTINUED THE ZOLOFT
20 AT THAT TIME.
21 SHE HAD A HISTORY OF HYPOTHYROIDISM AND WAS ON THYROID.
22 THE STROKE AFFECTED HER VISION MORE THAN ANYTHING. WELL, AS
23 WELL AS HER MENTATION, ALTHOUGH THERE IS A NOTE BY THE
24 EARLIER PHYSICIAN THAT SHE HAD A LITTLE BIT OF DEMENTIA
25 SHOWING UP THE YEAR BEFORE, PRIOR TO THE STROKE.
971
1 Q. DID SHE HAVE ANY COMPLAINT OF PAIN AT THAT TIME?
2 A. NO. I HAVE NO RECORD OF ANY COMPLAINTS OF PAIN AT THAT
3 TIME.
4 Q. YOU INDICATED THE CONDITION OF HYPOTHYROIDISM. CAN YOU
5 DEFINE THAT OR EXPLAIN THAT FOR US?
6 A. THE THYROID GLAND IS HERE IN THE THROAT. IT
7 MALFUNCTIONS IN A FAIRLY SIGNIFICANT PORTION OF THE
8 POPULATION EITHER ENLARGING IN THE GOITER OR IN SOME CASES
9 JUST FAILING TO PRODUCE ENOUGH THYROID HORMONE TO SUSTAIN
10 THE METABOLISM OF THE BODY. USUALLY PEOPLE MANIFEST
11 SLUGGISHNESS, WEIGHT GAIN, COARSE HAIR, THICKENED SKIN WHEN
12 THE THYROID GLAND STARTS TO FAIL. IT'S A VERY SIMPLE
13 DIAGNOSIS TO MAKE WITH A BLOOD TEST AND THE TREATMENT IS
14 TAKE A THYROID REPLACEMENT PILL ON A DAILY BASIS.
15 Q. SO WAS SHE GIVEN THAT KIND OF MEDICATION?
16 A. SHE HAD BEEN ON THAT BEFORE SHE SAW ME AND I CONTINUED
17 IT.
18 Q. YOU TOOK HER OFF THE ZOLOFT?
19 A. CORRECT.
20 Q. WERE YOU PROVIDING ANY OTHER MEDICATION TO HER AT THAT
21 TIME?
22 A. WELL, I WAS GOING TO HAVE HER COME BACK IN ABOUT TWO OR
23 THREE MONTHS TO REASSESS IF WE NEEDED SOMETHING TO HELP
24 CONTROL SOME OF HER OUTBURSTS AT TIMES. AS IS FAIRLY COMMON
25 IN OLDER DEMENTED PEOPLE SHE WOULD HAVE SOME OUTBURSTS AT
972
1 THE NURSING HOME THAT THE NURSES WOULD COMPLAIN OF. AND I
2 THINK OVER THE PHONE WE TRIED SOMETHING CALLED XANAX, WHICH
3 IS A MILD TRANQUILIZER. WE HAD TRIED SOMETHING CALLED
4 TRAZODONE, WHICH IS AN ANTIDEPRESSANT, BUT GIVEN AT BEDTIME
5 HELPS PEOPLE SLEEP AT NIGHT.
6 I NEGLECTED TO MENTION SHE WAS ALSO TAKING A FORM OF
7 NITROGLYCERIN BECAUSE OF A PREVIOUS HISTORY OF CORONARY
8 ARTERY DISEASE. IT WAS A TIME-RELEASED FORM OF
9 NITROGLYCERIN TO PREVENT CHEST PAINS.
10 Q. NOW, THESE OUTBURSTS THAT YOU REFERENCED, HOW DID YOU
11 BECOME AWARE OF THAT PARTICULAR BEHAVIOR PATTERN?
12 A. USUALLY THE NURSING PERSONNEL. I'VE A NOTE HERE FROM
13 FEBRUARY 27 WHERE ACTUALLY WE TRIED ATIVAN, WHICH IS ANOTHER
14 MILD TRANQUILIZER, INITIALLY. THE NEXT --
15 Q. CAN YOU TELL US IN WHAT AMOUNTS YOU ADMINISTERED
16 PARTICULARLY THE TRAZODONE?
17 A. TRAZODONE WAS 100 MILLIGRAMS AT BEDTIME. TRAZODONE
18 COMES IN 50, 150, AND 300 MILLIGRAM STRENGTHS. 100 IS KIND
19 OF A LOW, MODERATE DOSE.
20 Q. ATIVAN. WHAT ABOUT THAT?
21 A. ATIVAN WAS PRESCRIBED IN A HALF A MILLIGRAM. THAT IS
22 THE SMALLEST SIZE I BELIEVE THE PILL COMES IN. IT DOES NOT
23 SEDATE, BUT HELPS RELAX PEOPLE. I USE THAT WHEN I DON'T
24 WANT TO REALLY KNOCK SOMEBODY OUT, BUT CONTROL SOME OF THEIR
25 OUTBURSTS.
973
1 Q. NOW, THESE PARTICULAR MEDICATIONS WERE PRESCRIBED OVER
2 WHAT TIME PERIOD?
3 A. THE ATIVAN WAS BEFORE HER ADMISSION TO THE HOSPITAL IN
4 JULY, AND THE TRAZODONE WAS STARTED AFTER SHE WAS ADMITTED
5 TO THE HOSPITAL -- COTTONWOOD HOSPITAL IN JULY.
6 Q. DID YOU HAVE OCCASION TO SEE HER AT YOUR OFFICE BEFORE
7 THE HOSPITALIZATION IN JULY?
8 A. NO, I DID NOT.
9 Q. OKAY. SO THE NEXT REFERENCE YOU HAVE IN YOUR REPORT
10 DEALS WITH THE HOSPITALIZATION OCCURRING IN JULY?
11 A. YES, AND IT MUST HAVE EITHER BEEN ON A WEEKEND OR A TIME
12 WHEN I WAS OUT OF TOWN BECAUSE ANOTHER DOCTOR IN MY OFFICE,
13 DR. JAMES PEARCE, DID THE ADMISSION AND DISCHARGE AT THAT
14 TIME.
15 Q. DO YOU KNOW HOW LONG THAT HOSPITALIZATION WAS FOR?
16 A. ACCORDING TO MY RECORDS SHE WAS ADMITTED ON JULY 15TH
17 AND WAS DISCHARGED ON THE 16TH, SO JUST OVERNIGHT.
18 APPARENTLY CAME INTO THE EMERGENCY ROOM SOMEWHAT DEHYDRATED
19 AND WAS GIVEN SOME INTRAVENOUS FLUID.
20 SHE -- THE OTHER ITEMS MENTIONED IN THE NOTE ARE THAT
21 SHE HAD SOME HEARTBURN OR REFLUX, AND THE DEPRESSION, THE
22 DEMENTED STATE.
23 Q. SO YOU DID NOT SEE HER ON THAT PARTICULAR OCCASION?
24 A. I WAS NOT INVOLVED IN THE CARE AT THAT PARTICULAR TIME.
25 Q. DID YOU HAVE OCCASION TO REVIEW THAT WITH DR. PEARCE?
974
1 A. I'M SURE WE TALKED, BUT THERE'S NOTHING IN THE RECORD
2 DOCUMENTING WHAT WAS SAID SO -- IT'S BEEN FIVE YEARS. I
3 CAN'T REMEMBER.
4 Q. SO WAS IT AFTER THAT YOU INDICATED THAT YOU STARTED HER
5 ON THE TRAZODONE?
6 A. YEAH. THE NEXT NOTE -- ACTUALLY THERE WAS ONE
7 ADDITIONAL HOSPITALIZATION IN AUGUST THAT ALSO DR. PEARCE
8 WAS LUCKY ENOUGH TO BE ON CALL FOR ME.
9 Q. WHAT WAS THE DATE OF THAT HOSPITALIZATION?
10 A. THAT ONE WAS AUGUST 25 AND DISCHARGED THE 27TH. AT THAT
11 POINT, ACCORDING TO HIS NOTE, THE FAMILY THOUGHT MAYBE SHE
12 HAD HAD ANOTHER STROKE 'CAUSE SHE WASN'T SPEAKING AS MUCH AS
13 SHE HAD BEEN BEFORE. SHE WAS ADMITTED AND GIVEN SOME
14 INTRAVENOUS FLUIDS.
15 LET'S SEE IF HE CHANGED THE MEDICINES THERE. THERE WAS
16 SOME DISCUSSION AT THAT TIME OF THE FACT THAT IF SHE DIDN'T
17 START EATING, MAYBE A FEEDING TUBE MIGHT BE APPROPRIATE.
18 THE FAMILY DID NOT FEEL LIKE THEY WANTED TO PURSUE FORCED
19 FEEDING. AND AT THAT POINT DR. PEARCE WAS A LITTLE BIT
20 PESSIMISTIC ABOUT HOW SHE WOULD DO AND SENT HER BACK TO A
21 DIFFERENT NURSING HOME FOR HER CARE. AND THAT'S WHEN WE
22 STARTED THE TRAZODONE TO HELP HER REST AT NIGHT.
23 Q. DID YOU SEE HER IN YOUR OFFICE AT ANY TIME BETWEEN THE
24 JULY 15TH HOSPITALIZATION AND THE AUGUST 25TH
25 HOSPITALIZATION?
975
1 A. I DID NOT.
2 Q. WHEN WAS THE NEXT TIME YOU ACTUALLY HAD AN OPPORTUNITY
3 TO OBSERVE HER? WAS THERE A THIRD HOSPITALIZATION?
4 A. YES. ON SEPTEMBER 14 I'D HAD A CALL FROM THE HOLLADAY
5 HEALTH CARE CENTER SHE WAS AT AND THAT WAS WHEN SHE WAS A
6 LITTLE BIT AGITATED AND THAT'S WHERE WE STARTED THE XANAX,
7 WHICH IS SIMILAR TO ATIVAN, A MILD TRANQUILIZING AGENT. I
8 CHOSE THE .25 MILLIGRAM, WHICH IS THE SMALLEST DOSE THAT IT
9 COMES IN, TWO OR THREE TIMES A DAY, AS NEEDED.
10 SHE FELL -- ONE OF THE PROBLEMS SHE HAD WAS SHE WOULD
11 GET OUT OF BED WITHOUT ASSISTANCE AND HAD FALLEN A COUPLE OF
12 TIMES. AND SHE FELT -- SHE FELL ON THE NIGHT OF THE 13TH OR
13 THE MORNING OF THE 14TH AND I WAS AROUND AT THAT POINT AND I
14 DID THE ADMISSION. I DID MENTION --
15 Q. HOW OLD WAS JUDITH AT THIS TIME?
16 A. NINETY-THREE, I BELIEVE. SHE WAS BORN IN 1902, SO 93.
17 Q. SO THAT PARTICULAR HOSPITALIZATION ON SEPTEMBER THE 14TH
18 WAS PRECIPITATED BY WHAT EVENT?
19 A. SHE FELL AND HIT HER HEAD AND HAD A LACERATION ON HER
20 HEAD. WAS TAKEN TO THE EMERGENCY ROOM WHERE THEY STITCHED
21 IT UP. BUT THEY FELT THAT SHE HAD SUFFERED A LITTLE BIT OF
22 A CONCUSSION AND SO WE ADMITTED HER TO OBSERVE HER AND SEE
23 HOW SHE WOULD DO.
24 Q. WHEN WAS SHE RELEASED?
25 A. SHE WAS RELEASED ON THE -- LET'S SEE. UNFORTUNATELY --
976
1 IT IS -- NO. I'VE GOT MY RECORDS A LITTLE BIT OUT OF ORDER
2 HERE. THE 19TH -- LET'S SEE -- NO. THE 17TH OF JULY, 14TH
3 THROUGH THE 17TH, SO FOUR-DAY ADMISSION.
4 Q. YOU ARE TALKING ABOUT SEPTEMBER?
5 A. SEPTEMBER 17.
6 Q. DID YOU SEE HER IN THE HOSPITAL AT THAT TIME?
7 A. YES. I TOOK CARE OF HER IN THAT HOSPITALIZATION.
8 Q. AGAIN, WERE THERE ANY COMPLAINTS OF PAIN THAT SHE
9 EXPRESSED TO YOU ON THAT PARTICULAR HOSPITALIZATION?
10 A. AT THAT TIME SHE HAD A BIG BUMP ON HER HEAD AND HAD THE
11 LACERATION, BUT I DON'T HAVE THE MEDICATION LIST HERE. I
12 BELIEVE WE JUST TREATED HER WITH TYLENOL AT THAT TIME.
13 Q. OKAY. YOU ARE NOT AWARE, OTHER THAN THE TYLENOL, IF SHE
14 RECEIVED ANY FORM OF PAIN MEDICATION?
15 A. I DON'T HAVE A RECORD OF ANYTHING.
16 Q. DID YOU HAVE OCCASION AFTER SEPTEMBER 14, 1995, TO SEE
17 HER EITHER IN YOUR OFFICE OR ANY SUBSEQUENT HOSPITALIZATION?
18 A. YES. I DID SEE HER ON OCTOBER 3RD. MAKE SURE I DIDN'T
19 SEE HER BEFORE THAT.
20 Q. THIS WOULD BE APPROXIMATELY TWO WEEKS AFTER THE
21 HOSPITALIZATION?
22 A. UH-HUH. AND AT THAT TIME WE HAD STARTED THE TRAZODONE
23 TO HELP HER REST AT NIGHT AND WE MADE A MINOR ADJUSTMENT. I
24 REEVALUATED HER BECAUSE OF THE FALL AND THE CONCUSSION. THE
25 STITCHES HAD BEEN REMOVED. NURSING HOME STATED THAT SHE HAD
977
1 BEEN DOING WELL ON THE XANAX THREE TIMES A DAY AND THE
2 TRAZODONE AT BEDTIME, BUT BECAUSE OF HER TENDENCY TO FALL,
3 WE HAD DECIDED RATHER THAN PUTTING HER UP ON A BED THAT WE'D
4 PUT A MATTRESS ON THE FLOOR SO THAT IF SHE GOT OUT OF BED IT
5 WOULD BE A LITTLE BIT SHORTER FALL. SHE WOULDN'T HURT
6 HERSELF.
7 Q. REFERENCING THAT TIME FRAME FROM THE HOSPITALIZATION IN
8 SEPTEMBER UP UNTIL OCTOBER THE 3RD, DID YOU MAKE ANY KIND
9 OF -- OR DID YOU FORM ANY KIND OF IMPRESSIONS RELATIVE TO
10 HER GENERAL HEALTH FOR A 93-YEAR-OLD WOMAN?
11 A. I THINK THE STROKE HAD REALLY TAKEN ITS TOLL. SHE
12 WAS -- WOULD PERSEVERATE, MEANING SHE WOULD KEEP SAYING THE
13 SAME THING OVER AND OVER AGAIN. YOU COULDN'T INVOLVE HER IN
14 CONVERSATION WHERE YOU COULD DISCUSS THINGS BACK AND FORTH.
15 SHE WOULDN'T SPEAK A LITTLE BIT. APPARENTLY WAS --
16 ACCORDING TO THE NURSING HOME WAS EATING BETTER. WAS TAKING
17 HER MEALS. THAT THEY WERE TAKING CARE OF MOST OF HER
18 ACTIVITIES OF DAILY LIVING INCLUDED DRESSING, BRUSHING
19 TEETH, THOSE TYPE OF THINGS.
20 Q. YOU MADE A COMMENT EARLIER ABOUT A REFERENCE THAT YOUR
21 COLLEAGUE HAD MADE BACK IN AUGUST. I THINK HE REFERENCED AS
22 BEING PESSIMISTIC. HAVE YOU REVIEWED HIS --
23 A. YES. AT THE TIME HE DISCHARGED HER AFTER THE AUGUST ONE
24 HE DID MENTION THAT --
25 MR. STIRBA: YOUR HONOR, I'M NOT SURE THAT'S
978
1 RESPONSIVE TO THE QUESTION. THE QUESTION WAS DID YOU REVIEW
2 IT, AND THAT'S YES OR NO.
3 THE WITNESS: YES, I REVIEWED IT.
4 Q. (BY MR. WILSON) AND BASED UPON YOUR REVIEW, DID YOU
5 FORM ANY IMPRESSIONS AS TO WHETHER OR NOT THERE WAS ANY
6 DIFFERENCE BETWEEN HOW SHE WAS ACTING IN SEPTEMBER OVER HOW
7 SHE WAS RESPONDING IN AUGUST?
8 A. IN SEPTEMBER I STATED IN MY DICTATED NOTE, THE PATIENT
9 ON LAST HOSPITAL ADMISSION WAS REFUSING TO EAT AND LATER
10 REGAINED HER APPETITE. SHE SEEMED TO BE DOING MUCH BETTER
11 AT NURSING HOME WHEN THE EVENT HAPPENED LAST EVENING --
12 REFERRING TO THE FALL AND CONCUSSION.
13 Q. SO YOU SEE HER AGAIN ON OCTOBER THE 3RD. IS THERE ANY
14 OTHER TIME THAT YOU'D SEEN HER SUBSEQUENT TO OCTOBER THE
15 3RD?
16 A. I SAW HER TWO MORE TIMES, ONE A MONTH LATER ON NOVEMBER
17 THE 3RD. AT THAT POINT SHE CAME IN A WHEELCHAIR. I
18 MENTIONED THAT SHE WAS WHINING A LITTLE BIT. PERSEVERATED
19 AGAIN, JUST REPEATING THINGS SHE HAD HEARD. CRIED OUT A
20 COUPLE OF TIMES IN THE OFFICE. I POKED AND PRODDED. DIDN'T
21 FIND ANY PARTICULAR SPOT. SINCE SHE WAS PRONE TO FALLS, I
22 ALWAYS CHECKED AND MAKE SURE THERE ISN'T AN AREA OF THE BODY
23 WHERE SHE MIGHT HAVE CRACKED A RIB OR BUMPED A HIP OR
24 SOMETHING. BUT I DID NOT REPORT ANYTHING THAT I THOUGHT WAS
25 A TENDER SPOT ON HER. I DID NOT CHANGE THE MEDICATIONS.
979
1 LET'S SEE. STILL THE XANAX AND THE TRAZODONE WERE THE
2 TWO -- WE'LL CALL IT PSYCHOTROPIC DRUGS, THE ONES THAT HELP
3 WITH THE CONFUSION. SHE HAD HAD A LITTLE YEAST INFECTION
4 UNDER THE BREAST AND WE HAD GIVEN HER SOME CREAM FOR THAT.
5 Q. SO DID YOU FORM AN IMPRESSION IN NOVEMBER AS TO HER
6 GENERAL HEALTH?
7 A. MY ASSESSMENT WAS THAT SHE CONTINUED TO BE DEMENTED AND
8 CONTINUED NEEDED NURSING HOME CARE.
9 Q. WHAT WAS THE REASON FOR THIS PARTICULAR VISIT? WAS
10 THERE ANY?
11 A. I THINK MY NOTE HERE SAYS I WAS ASSESSING HER TENDENCY
12 TO FALL. SHE CAME IN IN A WHEELCHAIR. MY GUESS IS MOST
13 NURSING HOMES, ONCE THEY ADMIT A MEDICARE PATIENT, REQUIRE A
14 30 AND 60 DAY FOLLOW-UP AND I THINK THAT WAS MORE RATHER
15 ROUTINE UNDER MEDICARE RULES AS OPPOSED TO THE FAMILY HAVING
16 SPECIFIC CONCERNS.
17 Q. OKAY. THE LAST TIME YOU HAD OCCASION TO MEET WITH HER
18 WAS WHEN?
19 A. DECEMBER 4TH.
20 Q. AND WHERE DID THIS VISIT TAKE PLACE?
21 A. THIS -- ACTUALLY I DIDN'T SEE HER. THE FAMILY CAME IN
22 WITH A FORM FOR ME TO FILL OUT. THE NURSING HOME WHERE SHE
23 WAS AT WAS CONCERNED ABOUT HER AGITATION AT NIGHT. THEY
24 FELT THAT SHE NEEDED SOME PSYCHIATRIC EVALUATION AND PERHAPS
25 A CHANGE IN HER PSYCHIATRIC MEDICATION. THE FAMILY HAD
980
1 RESEARCHED AND FOUND A PLACE IN BOUNTIFUL THAT THEY WANTED
2 TO TAKE HER AND THERE WERE FORMS TO BE FILLED OUT TO HAVE
3 HER TRANSFERRED. I BELIEVE THE MAIN PURPOSE OF DECEMBER 4TH
4 WAS TO FILL OUT THE FORMS FOR THE NURSING OR THE CARE CENTER
5 IN BOUNTIFUL AND SIGN A REQUEST FOR A PSYCHIATRIC EVALUATION
6 THERE.
7 Q. OKAY. SO DID YOU FILL OUT THOSE FORMS AND ASSIST IN
8 THAT TRANSFER?
9 A. I DID.
10 Q. DO YOUR NOTES REFLECT, SIR, BETWEEN YOUR NOVEMBER 3RD
11 MEETING AND YOUR DECEMBER 4TH WHEN YOU FILLED OUT THE FORMS
12 ANY -- DO THEY HAVE ANY REFERENCES TO ANY INCIDENTS OR CALLS
13 FROM A NURSING HOME?
14 A. THE CALLS ARE REPORTED SEPARATELY FROM THAT. THE NOTE
15 THAT CAME FROM THE NURSING HOME ON DECEMBER 4 STATED THAT
16 THE PATIENT SLEEPS WELL AT NIGHT ON PRESENT MEDICATIONS. IS
17 MORE COOPERATIVE WITH CARE. LISTS THE XANAX AND THE
18 TRAZODONE, THE THYROID, A BABY ASPIRIN, AND NITROGLYCERIN
19 AND SOME EYE DROPS THAT SHE WAS TAKING. AND AS FAR AS PAIN
20 MEDICATION IS LISTED, TYLENOL EVERY SIX HOURS AS NEEDED FOR
21 DISCOMFORT OR PAIN, AND THEN SOME ZANTAC FOR HEARTBURN.
22 Q. AND TYLENOL ITSELF, IS THAT A PRESCRIPTION TYLENOL?
23 A. NO, IT'S NOT. BUT IN NURSING HOMES EVEN
24 NON-PRESCRIPTION MEDICATION HAS TO BE APPROVED BY THE
25 PHYSICIAN.
981
1 Q. OKAY. I TAKE IT YOU DID NOT HAVE ANY -- WELL, LET'S
2 JUST ASK YOU THIS. HAVE YOU GOT ANY NOTES IN YOUR FILE AS
3 HAVING CONFERRED WITH ANYBODY IN THE GEROPSYCH UNIT AT THE
4 DAVIS HOSPITAL?
5 A. I HAVE A NOTE FROM THE SOCIAL WORKER THAT REQUESTS ME TO
6 TALK PERSON TO PERSON WITH, I BELIEVE IT MENTIONED -- TRYING
7 TO FIND THAT -- DR. WEITZEL'S NAME IS THE PERSON I NEEDED TO
8 TALK TO TO HAVE THE PATIENT TRANSFERRED TO THE GEROPSYCH
9 UNIT. SO I DON'T HAVE ANY RECORD THAT WE HAD THAT
10 CONVERSATION. MY GUESS IS THAT I PROBABLY DID UPDATE HIM ON
11 THE CONDITION, BUT I DON'T HAVE ANY RECORD HERE OF IT.
12 Q. YOU DON'T HAVE ANY RECORD REFLECTING WHETHER OR NOT
13 THERE WAS SUCH A CONVERSATION?
14 A. CORRECT.
15 Q. WHAT WAS YOUR OPINION BASED UPON YOUR REVIEW OF THE
16 RECORDS AS TO -- FIRST OF ALL, AS TO THE PHYSICAL HEALTH OF
17 JUDITH LARSEN, AT LEAST AS TO THE LAST TIME YOU ACTUALLY MET
18 WITH HER?
19 A. ELDERLY, FRAIL LADY WHO SHOWED A REMARKABLE RESILIENCE
20 TO BOUNCE BACK FROM THE HOSPITALIZATIONS, BUT NEVERTHELESS
21 93 YEARS OLD, NOT OF SOUND MIND, CONFUSED AND REQUIRED MORE
22 CARE THAN THE HOLLADAY CARE CENTER COULD PROVIDE HER.
23 Q. AS TO PHYSICAL DISABILITIES THEMSELVES, DO YOU NOTE IN
24 YOUR EXAMS AND YOUR PREVIOUS EXAMS, OTHER THAN THE STROKE
25 THAT SHE HAD INCURRED, WHETHER OR NOT SHE HAD ANY OTHER -- I
982
1 GUESS FOR LACK OF A BETTER EXPRESSION -- CATEGORIZED AS
2 SERIOUS HEALTH PROBLEMS?
3 A. WELL, SHE'D HAD PREVIOUS HEART DISEASE, BUT I'M NOT SURE
4 SHE WAS ABLE TO TELL ME WHETHER OR NOT SHE WAS HAVING
5 ANGINA. THE THYROID CONDITION. OBVIOUSLY HAD GOOD BONES
6 'CAUSE SHE HAD FALLEN A FEW TIMES AND HADN'T BROKEN
7 ANYTHING. BUT AT 93 IT'S -- I COULDN'T SAY THAT SHE WAS THE
8 PICTURE OF HEALTH.
9 Q. SO OTHER THAN THE TYLENOL, THERE WAS NO PAIN MEDICATION
10 DURING THE COURSE OF YOUR TREATMENT YOU ADMINISTERED TO HER?
11 A. NO. THE NURSES DID REPORT THE TIMES THAT SHE WOULD CRY
12 OUT. AND WHEN SOMEONE CAN'T TELL YOU EXACTLY WHAT'S WRONG,
13 IT'S DIFFICULT TO TELL WHETHER THAT CRY IS AGITATION OR
14 WHETHER THAT CRY MIGHT BE PAIN. BUT I WAS NEVER -- THE
15 NURSES NEVER TOLD ME THAT SPECIFICALLY SHE WAS FAVORING THIS
16 HIP OR THAT SHE WAS BREATHING FUNNY OR WOULDN'T USE AN ARM
17 OR ANYTHING LIKE THAT THAT WOULD LEAD US TO BELIEVE THAT
18 THERE WAS PAIN.
19 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
20 HONOR.
21 THE COURT: MR. STIRBA.
22 CROSS-EXAMINATION
23 BY MR. STIRBA:
24 Q. GOOD AFTERNOON, DR. STEVENS. IT'S TRUE, JUST FOLLOWING
25 UP FROM WHAT YOU JUST SAID, THAT DEALING WITH SOMEONE OF
983
1 JUDITH'S AGE AND HER INABILITY TO COMMUNICATE MAKES CERTAIN
2 CLINICAL ASSESSMENTS DIFFICULT?
3 A. IT IS. FREQUENTLY WE CAN SYMPATHIZE WITH THE
4 PEDIATRICIANS WITH THE SMALL BABY THAT CAN'T TELL YOU
5 WHAT'S WRONG OR EVEN VETERINARIANS THAT DEAL WITH ANIMALS
6 THAT CAN'T TELL YOU WHAT'S WRONG. IT'S VERY DIFFICULT.
7 Q. AND FOR EXAMPLE IN HER CASE, THERE'S NO QUESTION BASED
8 UPON THE STROKE EVENT THAT OCCURRED IN THE BEGINNING OF 1995
9 AND THEN WHAT APPEARED TO BE ANOTHER STROKE IN AUGUST OF
10 1995, SHE SUFFERED FROM CEREBROVASCULAR DISEASE?
11 A. THAT'S A GOOD ASSUMPTION, YES.
12 Q. AND WOULD YOU JUST TELL THE FOLKS ON THE JURY WHAT
13 CEREBROVASCULAR DISEASE IS?
14 A. GENERALLY IN THE VERY OLD WHEN YOU HAVE A -- THERE'S TWO
15 OR THREE DIFFERENT TYPES OF STROKES. CEREBROVASCULAR
16 DISEASE REFERS TO WHAT WE COMMONLY CALL STROKES. THERE IS
17 TWO OR THREE DIFFERENT TYPES. YOU CAN BE BLEEDING OR
18 HEMORRHAGE. THAT'S LESS COMMON NOW 'CAUSE THAT'S USUALLY
19 FROM UNCONTROLLED HIGH BLOOD PRESSURE AND HOPEFULLY WE'RE
20 GETTING BETTER AT CONTROLLING THAT.
21 THERE ARE BLOCKAGES OF LARGE ARTERIES AND BLOCKAGES OF
22 SMALL ARTERIES. IF YOU HAVE A BLOCKAGE OF A LARGE ARTERY
23 YOU CAN HAVE A PRETTY DEVASTATING STROKE THAT CAN LEAVE YOU
24 EITHER PARALYZED ON ONE SIDE OR UNABLE TO SPEAK. THE SMALL
25 VESSEL DISEASE IS WHAT IS PROBABLY MORE COMMON IN THAT AGE
984
1 GROUP AND CAN LEAD TO DEMENTIA. CAN LEAD TO JUST SMALL
2 DEFICITS.
3 I BELIEVE THE STROKES SHE HAD IN JANUARY DID SHOW UP ON
4 A C.A.T. SCAN AS A LITTLE BIT OF A LARGER ONE, BUT WE ALL
5 FELT THAT SHE PROBABLY WAS HAVING SOME SMALLER STROKES THAT
6 WERE AFFECTING HER ABILITY TO THINK AND CAUSING HER DEMENTIA
7 AND CONFUSION.
8 Q. AND IT'S TRUE, IS IT NOT, IN TERMS OF THE EVENTS -- AND,
9 FOR EXAMPLE, THIS MAY BE TRUE IN JUDITH'S CASE. REALLY
10 WHAT'S SIGNIFICANT IN TERMS OF ULTIMATELY THE DAMAGE THAT IS
11 CAUSED IS NOT NECESSARILY THE SIZE OF THE EVENT, BUT THE
12 LOCATION OF THE EVENT?
13 A. CORRECT.
14 Q. SO IN OTHER WORDS, YOU COULD HAVE WHAT IS ESSENTIALLY A
15 SMALL EVENT, BUT IT'S IN A BAD PLACE IN THE BRAIN, THEN IT
16 COULD HAVE DEVASTATING CONSEQUENCES?
17 A. CORRECT.
18 Q. SIMILARLY YOU COULD HAVE A LARGE EVENT IN A CERTAIN AREA
19 OF THE BRAIN AND PERHAPS VERY LITTLE RESIDUAL CONSEQUENCE TO
20 THE PATIENT; IS THAT TRUE?
21 A. THAT'S TRUE.
22 Q. AND IT'S TRUE, IS IT NOT, THAT IN AUGUST THERE WAS SOME
23 DETERMINATION THAT PERHAPS THE EVENTS WERE SUBACUTE?
24 A. CORRECT. I BELIEVE I LOOKED AT THE C.A.T. SCAN REPORT
25 AND IT WAS UNCHANGED FROM THE PREVIOUS ONE, BUT THE TINY
985
1 STROKES -- THAT'S POSSIBLE THAT A TINY STROKE WAS NOT PICKED
2 UP ON A C.A.T. SCAN.
3 Q. AND ALSO YOU TESTIFIED THAT JUDITH HAD SOME CONGESTIVE
4 HEART FAILURE; IS THAT RIGHT?
5 A. I HAVEN'T SAID THAT YET TODAY. I DON'T KNOW THAT MY --
6 Q. I'M SORRY. I MIGHT HAVE MISHEARD.
7 A. CORONARY ARTERY DISEASE.
8 Q. I'M SORRY. THANK YOU. CORONARY ARTERY DISEASE. AND
9 WOULD YOU TELL THE FOLKS ON THE JURY WHAT THAT IS?
10 A. BLOCKAGES IN THE ARTERIES THAT FEED THE HEART, AND WHEN
11 THEY BECOME SIGNIFICANT ENOUGH, WITH EXERTION YOU COULD FEEL
12 PAIN OR DISCOMFORT THAT WE TERM ANGINA, CHEST PAINS. IF A
13 BLOOD CLOT FORMS WHERE THERE IS KIND OF A BLOCKAGE YOU COULD
14 HAVE A HEART ATTACK.
15 Q. DID SHE HAVE ANY OTHER DIAGNOSABLE CIRCULATORY OR
16 CARDIAC DYSFUNCTIONS OR PROBLEMS?
17 A. NOT ACCORDING TO THE RECORDS THAT I HAVE, BUT SHE WAS
18 NOT A GREAT HISTORY GIVER. SO IT WOULD BE DIFFICULT TO KNOW
19 WHAT ELSE WAS GOING ON.
20 Q. NOW, YOU STARTED TO SEE HER IN FEBRUARY OF '95 AFTER THE
21 STROKE; IS THAT RIGHT?
22 A. CORRECT.
23 Q. AND THEN, OF COURSE, YOU SAW HER AT LEAST THROUGH THE
24 TIME SHE WAS ADMITTED TO THE DAVIS HOSPITAL IN THE BEGINNING
25 OF DECEMBER OF 1995 AND, IF I UNDERSTAND YOUR TESTIMONY,
986
1 THERE WERE THREE HOSPITALIZATIONS AT LEAST THAT'S REFLECTED
2 IN YOUR RECORDS; IS THAT RIGHT?
3 A. THAT'S CORRECT.
4 Q. THERE WAS THE JULY '95 HOSPITALIZATION WHEN YOU IN FACT
5 CARED FOR HER; IS THAT CORRECT?
6 A. DR. PEARCE CARED FOR HER.
7 Q. I'M SORRY. DR. PEARCE CARED FOR HER. THEN THERE WAS
8 AUGUST 1995 HOSPITALIZATION AND DR. PEARCE ALSO CARED FOR
9 HER; IS THAT RIGHT?
10 A. YES.
11 Q. AND THEN THERE WAS THE SEPTEMBER 14, 1995
12 HOSPITALIZATION AND YOU PROVIDED THE CARE, TRUE?
13 A. CORRECT.
14 Q. THIS WAS ALL ESSENTIALLY AT COTTONWOOD HOSPITAL?
15 A. COTTONWOOD HOSPITAL.
16 Q. YOU HAVE THOSE RECORDS IN FRONT OF YOU AS PART OF YOUR
17 FILE.
18 A. I JUST HAVE THE DICTATIONS. I DON'T HAVE THE FULL
19 HOSPITALIZATIONS. I HAVE -- THE ADMITTING AND DISCHARGE
20 DICTATIONS ARE SENT BACK TO THE DOCTOR'S OFFICE AND I HAVE
21 MY OFFICE FILE. I DON'T HAVE THAT IN FRONT OF ME, ANY
22 HOSPITAL RECORDS THAT WOULD INCLUDE NURSES' NOTES.
23 Q. WELL, FOR EXAMPLE, THE SEPTEMBER 14, 1995 ADMISSION, DO
24 YOU HAVE THAT IN FRONT OF YOU, FOR EXAMPLE, YOUR DISCHARGE
25 SUMMARY?
987
1 A. I HAVE THE ADMISSION ONE AND I WAS LOOKING FOR THE
2 DISCHARGE SUMMARY. AND MY FILING PEOPLE MUST HAVE GOT IT
3 OUT OF PLACE 'CAUSE I DON'T HAVE IT DIRECTLY IN FRONT OF ME.
4 DO YOU HAVE A COPY OF IT? IT MIGHT HELP ME IF I COULD LOOK
5 AT THAT. WAIT A MINUTE. HERE, I'VE GOT IT. ACTUALLY IT
6 WAS THE AGE.
7 Q. YOU HAVE IT. IT'S ONE OF THOSE WHERE IT SAYS, I
8 AUTHORIZE MY NAME TO BE AUTOMATICALLY AFFIXED TO THIS
9 REPORT, GREGORY P. STEVENS. AND IT LOOKS LIKE IT WAS
10 DICTATED ON 9/18/95, TRANSCRIBED ON 9/19/95?
11 A. CORRECT.
12 Q. YOU HAVE THAT IN FRONT OF YOU?
13 A. I DO.
14 Q. FOR YOU IT HAS A PORTION OF THE DISCHARGE SUMMARY FOR
15 THE SEPTEMBER 14, 1995 ADMISSION; IS THAT RIGHT?
16 A. CORRECT.
17 Q. AND THE ADMISSION WAS CAUSED BECAUSE JUDITH HAD A FALL
18 IN THE NURSING HOME; IS THAT RIGHT?
19 A. THAT'S CORRECT.
20 Q. AND, IN FACT, SUFFERED A LACERATION ON HER HEAD; ISN'T
21 THAT TRUE?
22 A. CORRECT.
23 Q. AND, IN FACT, THIS LACERATION WAS ABOUT THREE INCHES
24 LONG?
25 A. I DON'T KNOW IF I DESCRIBED IT. IT WOULD BE FROM THE
988
1 EMERGENCY ROOM DOCTOR'S NOTE, SO I DON'T HAVE THAT WITH ME.
2 Q. OKAY. NOW, YOU INDICATE UNDER DISCHARGE DIAGNOSIS -- DO
3 YOU SEE THAT?
4 A. UH-HUH.
5 Q. YOU HAVE INTRACTABLE NAUSEA AND VOMITING SECONDARY TO
6 CONCUSSION. THE CONCUSSION THAT YOU ARE REFERRING TO IS THE
7 CONCUSSION THAT WAS CAUSED EARLIER FROM A FALL?
8 A. FROM THE FALL.
9 Q. AND THAT WOULD HAVE BEEN IN AUGUST?
10 A. NOVEMBER, THE ONE JUST PRIOR TO THE ONE THAT GAVE HER
11 THE LACERATION ON THE HEAD.
12 Q. SO THE CONCUSSION WOULD HAVE BEEN AS A RESULT OF THIS
13 FALL?
14 A. YES.
15 Q. COULD YOU TELL US, PLEASE, WHAT A CONCUSSION IS?
16 A. CONCUSSION IS BASICALLY BRUISING OF THE BRAIN, IN SIMPLE
17 TERMS. THE BRAIN IS SURROUNDED BY FLUID AND WHEN YOU FALL
18 AND WHACK THE BRAIN, IT LITERALLY BOUNCES BACK AND FORTH
19 BETWEEN THE BONES INSIDE YOUR HEAD AND CAN CAUSE BRUISING
20 BOTH IN THE FRONT -- IF YOU FELL ON THE FRONT OF YOUR HEAD
21 IT COULD CAUSE BRUISING ON THE FRONT OF THE BRAIN, BUT ALSO
22 BECAUSE THE BRAIN KIND OF BOUNCES BACK AND FORTH YOU CAN
23 SIMILARLY GET -- ON THE OPPOSITE SIDE FROM THE FALL YOU CAN
24 GET BRUISING OF THE BRAIN AS WELL.
25 Q. AND THEN YOU INDICATE NEXT, CONCUSSION FROM FALL, WHICH
989
1 YOU JUST DESCRIBED.
2 AND THEN YOU HAVE LISTED NUMBER THREE, DEMENTIA.
3 THAT'S THE MENTAL COMPONENT OF THE PROBLEMS THAT JUDITH WAS
4 SUFFERING AT THE TIME; IS THAT RIGHT?
5 A. CORRECT.
6 Q. AND THEN WE HAVE CORONARY ARTERY DISEASE WHICH YOU JUST
7 TESTIFIED THAT SHE HAD; IS THAT RIGHT?
8 A. CORRECT.
9 Q. AND THEN YOU HAVE HYPOTHYROIDISM WHICH YOU TESTIFIED TO
10 AS WELL ON DIRECT EXAMINATION; IS THAT RIGHT?
11 A. CORRECT.
12 Q. AND THEN YOU HAVE UNDER MEDICATIONS OR HOSPITAL COURSE,
13 RATHER IT SAYS THE PATIENT WILL BE DISCHARGED BACK TO THE
14 NURSING HOME ON THE FOLLOWING MEDICATIONS. I JUST WANT TO
15 ASK YOU ABOUT A COUPLE OF THEM. THERE'S ONE THAT SAYS
16 ISOSORBIDE, AND IT HAS 10 MILLIGRAMS AND IT HAS P.O. B.I.D.
17 WHAT DOES THAT STAND FOR?
18 A. ISOSORBIDE IS TIME-RELEASED NITROGLYCERIN 10 MILLIGRAMS
19 BY MOUTH TWICE A DAY.
20 Q. AND THAT IS A HEART MEDICATION?
21 A. THAT'S HEART, UH-HUH.
22 Q. AND THEN WE HAVE ALSO TRAZODONE WHICH YOU TESTIFIED TO
23 ON DIRECT. 50 MILLIGRAMS AT LEAST AS OF THAT POINT. IS
24 THAT TWICE A DAY?
25 A. THAT IS AT BEDTIME. Q.H.S. MEANS AT BEDTIME.
990
1 Q. SO THAT WOULD BE 50 MILLIGRAMS, ONE PILL AT BEDTIME?
2 A. UH-HUH.
3 Q. AND TRAZODONE IS WHAT KIND OF MEDICATION AGAIN?
4 A. IT'S AN ANTIDEPRESSANT THAT HELPS WITH SLEEP.
5 Q. AND IT'S TRUE, IS IT NOT, IT HAS SEDATING QUALITIES?
6 A. YES, IT DOES.
7 Q. IN FACT, IT IS A SEDATIVE, TRUE?
8 A. CORRECT.
9 Q. BY SEDATIVE WE MEAN DEPRESSION OF THE CENTRAL NERVOUS
10 SYSTEM, ESSENTIALLY?
11 A. ACTUALLY, FRANKLY SPEAKING IT'S ANTIDEPRESSANT THAT HAS
12 SEDATING EFFECTS, SIDE EFFECTS.
13 Q. AND YOU PRESCRIBE THAT FOR SLEEP OR FOR DEPRESSION?
14 A. USUALLY A LITTLE OF BOTH. IF SOMEBODY IS DEPRESSED AND
15 AGITATED AT NIGHT AND CAN'T SLEEP, IT'S NICE TO HAVE A
16 SLEEPING PILL -- ANTIDEPRESSANT PILL THAT HELPS YOU REST AT
17 NIGHTTIME.
18 Q. THEN WE HAVE XANAX AND XANAX IS ESSENTIALLY ANTIANXIETY
19 MEDICATION?
20 A. CORRECT.
21 Q. AND I THINK -- DID YOU DESCRIBE XANAX AS A TRANQUILIZER
22 PREVIOUSLY?
23 A. YES.
24 Q. SO THAT'S A SEDATING MEDICATION AS WELL?
25 A. WELL, IT'S NOT AS SEDATING AS TRANQUILIZING. I CHOSE
991
1 THAT OVER VALIUM 'CAUSE I FEEL VALIUM CAUSES MORE
2 DROWSINESS. THE XANAX DOESN'T CAUSE QUITE AS MUCH
3 DROWSINESS WHEN IT'S TAKEN.
4 Q. TELL US, PLEASE, THE DIFFERENCE BETWEEN A TRANQUILIZER
5 MEDICATION AND A SEDATING MEDICATION.
6 A. I THINK YOU CAN PROBABLY SAY THEY ARE ABOUT THE SAME.
7 Q. DO THEY HAVE THE SAME EFFECT PHYSIOLOGICALLY?
8 A. OH, TO GET INTO THE PHARMACOLOGY OF THEM, I DON'T
9 THINK -- I DON'T THINK THAT'S ANYTHING THAT IS GOING TO HELP
10 US UNDERSTAND A LITTLE BIT. WHAT WE'RE LOOKING FOR IN THIS
11 EFFECT WAS SOMEBODY WITH AGITATION. I WANTED SOMETHING THAT
12 WOULD HELP CONTROL THE AGITATION. WHETHER YOU CALL THAT
13 SEDATING THEM OR TRANQUILIZING THEM, I THINK IT MEANS THE
14 SAME THING.
15 Q. SO THE SEDATION FACTOR HELPS IN CONTROLLING THE
16 BEHAVIOR?
17 A. IT CAN SOMETIMES.
18 Q. AND WAS THAT THE CASE HERE WITH THE ORDERING OR
19 PRESCRIBING OF XANAX?
20 A. WELL, I WASN'T LOOKING SO MUCH FOR SEDATION. I WOULD
21 HAVE CHOSEN VALIUM FOR TRUE SEDATION. I WAS LOOKING MORE
22 FOR PREVENTING AGITATION.
23 Q. IT SAYS FOR ANXIETY?
24 A. CORRECT.
25 Q. SO IS IT FOR ANXIETY OR FOR AGITATION?
992
1 A. IN MY MIND THOSE ARE PRETTY EQUIVALENT.
2 Q. AND THEN, ALSO, THERE WAS ANOTHER PRESCRIPTION THAT I
3 BELIEVE YOU PROVIDED FOR JUDITH AND THAT WAS ATIVAN?
4 A. SHE HAD BEEN ON ATIVAN EARLIER AND WE HAD MADE THE
5 SWITCH TO XANAX, AND I BELIEVE WE HAD TRIED BOTH OF THEM AND
6 THE NURSING HOME REPORTED SHE RESPONDED BETTER TO XANAX.
7 ATIVAN AND XANAX ARE USED FOR THE SAME PURPOSE.
8 Q. IS ATIVAN ALSO ANTIANXIETY MEDICATION?
9 A. ANTIANXIETY, LESS SEDATING THAN VALIUM BUT IN THE SAME
10 CLASS.
11 Q. THEN IT SAYS, AFTER BABY ASPIRIN ONE A DAY IT SAYS THE
12 PATIENT IS NO CODE. WHAT DOES THE PATIENT BEING NO CODE
13 MEAN?
14 A. THAT MEANS THE FAMILY HAD REQUESTED THAT SHOULD SHE HAVE
15 A MAJOR HEART ATTACK THAT WE NOT PUT A TUBE DOWN HER THROAT
16 OR PRESS ON HER CHEST TO TRY AND GET THE HEART RESTARTED.
17 BECAUSE OF HER AGE AND HER OTHER HEALTH PROBLEMS THEY
18 DESIRED NATURE TO TAKE ITS COURSE IF SHE WOULD HAVE A HEART
19 ATTACK.
20 Q. HAVE YOU HAD CONVERSATIONS WITH EITHER HER SON OR
21 SOMEBODY FROM THE FAMILY ABOUT THIS VERY ISSUE?
22 A. YES, I HAD.
23 Q. AND DO YOU RECALL APPROXIMATELY WHEN YOU HAD
24 CONVERSATIONS IN THAT RESPECT?
25 A. I HAVE A NOTE IN MY CHART REGARDING THAT. I CAN'T GIVE
993
1 THE EXACT DAY. I KNOW THAT WE SPOKE ABOUT IT IN THE OFFICE
2 AND WE SPOKE ABOUT IT AT THE HOSPITAL, SO I CAN'T GIVE YOU
3 AN EXACT DAY.
4 Q. WAS YOUR CONVERSATION WITH MERLIN LARSEN?
5 A. YEAH. MOST OF WITH THE FAMILY. HE WAS MY MAIN CONTACT.
6 Q. AND DO YOU RECALL, IN ADDITION TO WHAT YOU JUST
7 DESCRIBED, IF THERE WERE ANY OTHER DIRECTIONS THAT YOU
8 RECEIVED EITHER FROM MR. LARSEN OR THE FAMILY IN THIS
9 RESPECT?
10 A. I THINK THEY WERE UNCOMFORTABLE HAVING HER RESTRAINED.
11 I DO HAVE A NOTE HERE THAT THEY WOULD -- THEY WERE HOPING I
12 COULD FIND THE RIGHT COMBINATION OF MEDICATIONS THAT WOULD
13 KEEP HER FROM GETTING UP AND FALLING. THAT THEY WOULDN'T
14 HAVE TO PUT RESTRAINTS ON HER TO HOLD HER IN HER CHAIR OR
15 RESTRAIN HER.
16 Q. THAT WAS SOMETHING THAT WAS OCCURRING AT THE NURSING
17 HOME?
18 A. THE NURSES FELT TO PROTECT HER AND PROTECT HER FROM
19 FALLING AND INJURING HERSELF THEY HAD TO USE ONE OF THOSE
20 VESTS THAT TIE IN THE BACK OF THE CHAIR SO SHE CAN'T FALL
21 OUT OF THE CHAIR.
22 Q. SO I NOTICE ON THIS DISCHARGE SUMMARY, ONCE AGAIN IT
23 STATES, THE NURSING HOME WILL BE ENCOURAGED TO RESTRAIN THE
24 PATIENT AT ALL TIMES AS THIS IS THE THIRD FALL IN WHICH
25 SHE--
994
1 A. IT SHOULD BE SHE.
2 Q. -- SUSTAINED LACERATIONS. IN TERMS OF YOUR CARE, WERE
3 YOU ABLE TO DETERMINE IF THERE WAS A MEDICAL REASON FOR HER
4 FALLS?
5 A. SHE DIDN'T SEE WELL. WITH THE STROKE, THE MAJOR STROKE
6 CAUSED HALF OF HER VISUAL FIELD TO BE MISSING, SO SHE WAS
7 ONLY SEEING -- I CAN'T REMEMBER WHETHER IT WAS THE LEFT HALF
8 OR THE RIGHT HALF. AND THAT IS VERY DISORIENTING AND IT
9 AFFECTS YOUR BALANCE. I THINK THAT WAS ONE OF THE MAIN
10 REASONS. SHE WAS ALSO 93 AND WEAK AND BEING A LITTLE BIT
11 CONFUSED AS WELL ON TOP OF THAT. THAT'S KIND OF A BAD
12 COMBINATION.
13 Q. DID THE MEDICATIONS THAT SHE WAS RECEIVING AT THE TIME
14 CONTRIBUTE TO HER INSTABILITY?
15 A. IT'S HARD TO DETERMINE. I WOULD SAY THEY WOULD HAVE
16 THAT POTENTIAL.
17 Q. ONCE AGAIN, THESE ARE DIFFICULT CLINICAL ASSESSMENTS
18 GIVEN THE NATURE OF THE CIRCUMSTANCES; IS THAT RIGHT?
19 A. CORRECT.
20 Q. NOW, THE HOSPITALIZATION, THE AUGUST -- WELL, LET ME ASK
21 YOU ONE THING. DO YOU HAVE -- FROM THE SEPTEMBER 14
22 HOSPITALIZATION, DO YOU HAVE THE HISTORY AND PHYSICAL
23 EXAMINATION --
24 A. I DO.
25 Q. -- THAT YOU DICTATED. THAT'S THE DOCUMENT, IS IT NOT,
995
1 THAT YOU DICTATED?
2 A. CORRECT.
3 Q. I'M INTERESTED SPECIFICALLY UNDER SOCIAL HISTORY, YOU
4 SAY, THE PATIENT HAS BEEN LIVING AT HOLLADAY CARE CENTER
5 SINCE HER LAST HOSPITAL ADMISSION. INITIALLY SHE WAS SENT
6 THERE FOR TERMINAL CARE, BUT IMPROVED TO THE POINT WHERE SHE
7 WAS TAKING NOURISHMENT AND SEEMED TO BE RALLYING. WHAT DID
8 YOU MEAN WHEN YOU USED THE TERM "TERMINAL CARE?"
9 A. AT THAT AGE ONCE SOMEBODY REFUSES TO EAT AND IF THE
10 FAMILY DESIRES NOT TO PLACE TUBES TO FORCE FEEDING, PEOPLE
11 DON'T LAST TOO LONG WITHOUT NOURISHMENT, A FEW WEEKS. AND
12 TERMINAL CARE, YOU KNOW, UNDER THOSE CIRCUMSTANCES WOULD BE
13 WE DO EVERYTHING TO KEEP HER COMFORTABLE, BUT WOULD NOT --
14 FAMILY AT THAT TIME HAD DETERMINED THEY DID NOT WANT TUBES
15 DOWN HER NOSE OR TUBES DIRECTLY THROUGH THE STOMACH WALL
16 INTO THE STOMACH TO PROVIDE NOURISHMENT. SO HONORING THAT
17 WISH I BELIEVE DR. PEARCE IS THE ONE WHO FELT THAT IF SHE'S
18 NOT GOING TO EAT, SHE'S PROBABLY NOT GOING TO LAST VERY
19 LONG. BUT APPARENTLY SHE REGAINED HER APPETITE AND WAS
20 EATING MUCH BETTER AND THAT'S WHAT I MEANT BY RALLYING.
21 Q. DID YOU BELIEVE, BASED UPON YOUR CARE OF JUDITH, THAT
22 HER CESSATION OF EATING WAS A SIGN THAT PERHAPS SHE WAS
23 DYING?
24 A. OBVIOUSLY NOT EATING CAN LEAD TO DYING. BUT THERE ARE A
25 NUMBER OF REASONS WHY PEOPLE QUIT EATING: NAUSEA,
996
1 CONFUSION. SO I DON'T KNOW THAT I WOULD SAY THAT'S A SIGN.
2 I HAVE LOTS OF PATIENTS IN THIS AGE GROUP THAT WILL STOP
3 EATING FOR A WHILE AND THEN EITHER WITH A CHANGE IN
4 MEDICATIONS OR RESOLUTION OF A STOMACH FLU OR WHATEVER WILL
5 BEGIN EATING AGAIN.
6 Q. BUT CERTAINLY DR. PEARCE HAD THAT THOUGHT IN MIND, DID
7 HE NOT, WHEN HE REFERRED HER --
8 MR. WILSON: I'M GOING TO OBJECT AS TO WHAT
9 DR. PEARCE MAY HAVE THOUGHT, YOUR HONOR.
10 THE COURT: SUSTAINED.
11 THE WITNESS: I THINK HE'S GOING TO BE HERE TO
12 ANSWER THAT.
13 Q. (BY MR. STIRBA) ONE OTHER THING I WANT TO ASK YOU
14 ABOUT ON THIS DOCUMENT, THIS IS THE SECOND PAGE OF YOUR
15 HISTORY, PHYSICAL EXAMINATION. IT'S THE SAME DOCUMENT WE'VE
16 BEEN TALKING ABOUT AND YOU HAVE UNDER IMPRESSION AND PLAN,
17 YOU PUT CONCUSSION. AND THEN YOU HAVE, WE WILL OBSERVE THE
18 PATIENT IN HOSPITAL SETTING AND WATCH FOR SIGNS AND SYMPTOMS
19 OF EPIDURAL OR SUBDURAL HEMATOMA. THESE ARE WORDS THAT I
20 THINK -- COULD YOU EXPLAIN FOR US, PLEASE?
21 A. SURE. BOTH OF THEM INVOLVE BLEEDING OF BLOOD VESSELS IN
22 THAT FLUID SPACE BETWEEN THE BRAIN AND THE SKULL. AND IF
23 YOU GET LARGE BLOOD -- OR A LARGE AMOUNT OF BLOOD, IT
24 COMPRESSES THE BRAIN. AND IF YOU COMPRESS THE BRAIN ENOUGH,
25 PEOPLE CAN STOP BREATHING.
997
1 SO THE REASON FOR THE C.A.T. SCAN THIS ADMISSION WAS TO
2 MAKE SURE THERE WASN'T EVIDENCE OF BLEEDING IN THAT SPACE OR
3 THE BRAIN ITSELF.
4 Q. AND ALSO YOU INDICATED ELEVATED GLUCOSE. UNDER POINT
5 THREE YOU SAY, THIS IS THE FIRST MANIFESTATION OF THIS.
6 WE'LL OBSERVE SLIDING SCALE IS WRITTEN. WERE YOU ABLE TO
7 DETERMINE WHY AT THIS POINT SHE HAD AN ELEVATED GLUCOSE?
8 A. I DIDN'T MENTION THE DISCHARGE SUMMARY. I'M GOING TO
9 ASSUME A LOT OF BLOOD IS DRAWN AFTER THE I.V. IS STARTED BY
10 THE PARAMEDICS AND THAT CONTAINS SUGAR. FREQUENTLY YOU'LL
11 SEE AN ELEVATED SUGAR IN SOMEBODY THAT COMES INTO THE
12 EMERGENCY ROOM EITHER BECAUSE OF THE I.V., OR STRESS IN AND
13 OF ITSELF WILL RAISE YOUR SUGAR A LITTLE BIT. THE FACT THAT
14 I DIDN'T MENTION IT IN THE DISCHARGE AS BEING A PROBLEM, I
15 GUESS RESOLVED AND IS NOT ANYTHING THAT I PURSUED.
16 Q. YOU DO HAVE THE NOTES FROM THE SALT LAKE CLINIC IN FRONT
17 OF YOU AS PART OF YOUR FILE?
18 A. YES.
19 Q. MINE ARE NOT IN ORDER EITHER. LET ME SHOW YOU AN ENTRY.
20 YOU HAVE DR. WESTERMANN'S ENTRY FOR 2/1/95?
21 A. YES, I DO.
22 Q. THAT'S FROM THE SALT LAKE CLINIC. I WANT TO ASK YOU,
23 UNDER ASSESSMENT AND PLAN HE STATES, GIVEN HER HYPOTENSION
24 AND SOMNOLENCE TODAY THEY WILL DISCONTINUE HER ISOSORBIDE.
25 IS THAT THE HEART MEDICATION THAT YOU TESTIFIED THAT YOU HAD
998
1 PRESCRIBED FOR HER?
2 A. CORRECT.
3 Q. AND CAN YOU EXPLAIN TO US WHY DR. WESTERMANN -- WELL,
4 FIRST OF ALL, HE MADE A DETERMINATION OF HYPOTENSION. WHAT
5 IS THAT?
6 A. THAT'S A LOW BLOOD PRESSURE.
7 Q. AND HE ALSO INDICATED THAT -- SOMNOLENCE IS OBVIOUSLY
8 SLEEPINESS; IS THAT RIGHT?
9 A. CORRECT.
10 Q. AND HE DISCONTINUED THAT PARTICULAR HEART MEDICATION.
11 IS THERE A REASON WHY HE DISCONTINUED IT AT THIS TIME AND
12 YOU PRESCRIBED IT AT A LATER TIME?
13 A. ACTUALLY WHEN SHE CAME TO SEE ME SHE WAS STILL TAKING IT
14 ON THE 16TH AND HER BLOOD PRESSURE WAS OKAY AND SO I LEFT
15 HER ON IT.
16 Q. DO YOU KNOW WHY WHAT IS REFERENCED THERE BY
17 DR. WESTERMANN WOULD CALL FOR A CESSATION OF THAT PARTICULAR
18 HEART MEDICATION?
19 A. HE WAS CONCERNED THAT IT WAS -- SINCE IT DILATES BLOOD
20 VESSELS AND CAN CONTRIBUTE TO A LOWERING OF THE BLOOD
21 PRESSURE, HE PROBABLY DIDN'T WANT TO HAVE THE BLOOD PRESSURE
22 ANY LOWER THAN THE 90 OVER 60 AS IT SHOWS UP THERE. THAT
23 WOULD MAKE HER MORE UNSTABLE ON HER FEET AND HAVE MORE OF A
24 TENDENCY TO FALL AND I'M SURE HE WAS JUST BEING CAUTIOUS. I
25 DON'T KNOW IF THE WORD GOT TO THE FAMILY BECAUSE WHEN I SAW
999
1 HER ON THE 16TH THEY WERE STILL GIVING IT TO HER. THE BLOOD
2 PRESSURE WAS OKAY.
3 Q. AND THERE'S ALSO A REFERENCE TO LORAZEPAM. IT SAYS SHE
4 HAS NOT BEEN GETTING LORAZEPAM.
5 A. IT'S THE GENERIC NAME FOR ATIVAN, ONE OF THE MEDICINES
6 WE'VE TALKED ABOUT.
7 Q. THAT'S ONE YOU PRESCRIBED FOR HER AS WELL AT SOME POINT?
8 A. INITIALLY SHE WAS ON THAT AND WE LATER SWITCHED TO
9 XANAX.
10 Q. THAT'S ALL I HAVE, DOCTOR. THANK YOU.
11 THE COURT: REDIRECT?
12 MR. STIRBA: ONE OTHER THING.
13 Q. (BY MR. STIRBA) YOU HAVE YOUR ENTIRE FILE IN FRONT OF
14 YOU?
15 A. I DO, YES.
16 MR. STIRBA: YOUR HONOR, WE WOULD LIKE TO DO THE
17 SAME THING WITH THE DOCTOR, IF WE COULD. IF WE COULD MAKE A
18 COPY OF THIS AND MAKE IT DEFENDANT'S EXHIBIT 19 AND THEN
19 RETURN THE ORIGINAL TO THE DOCTOR. WE'D OFFER IT AS
20 DEFENDANT'S EXHIBIT 19.
21 THE COURT: ANY OBJECTION TO THAT EXHIBIT?
22 MR. WILSON: NO OBJECTION, YOUR HONOR.
23 THE WITNESS: WOULD THAT MEAN MY FILE CLERK DOESN'T
24 HAVE TO COME TO TESTIFY THIS IS THE RECORD?
25 THE COURT: THEY WILL TAKE THAT RIGHT NOW AND COPY
1000
1 THAT.
2 THE WITNESS: MARCY WAS WORRIED ABOUT COMING ALL
3 THE WAY UP HERE JUST TO SAY THIS IS JUST THE RECORD.
4 THE COURT: MAY THIS WITNESS BE EXCUSED?
5 MR. WILSON: WE WOULD -- WELL, I HAVE A FEW
6 QUESTIONS.
7 THE COURT: EXCUSE ME.
8 REDIRECT EXAMINATION
9 BY MR. WILSON:
10 Q. YOU INDICATED THAT THERE WAS A TERM USED IN THE
11 CROSS-EXAMINATION, SUBACUTE. WHAT DOES THAT MEAN, SUBACUTE?
12 A. IT HAS TO DO WITH THE TIME FRAME AND I'M NOT SURE
13 THERE'S A STRICT DEFINITION. BUT ACUTE WOULD BE IF SOMEBODY
14 HAD A STROKE AND IT HAPPENED TEN MINUTES AGO. ACUTE REFERS
15 TO THAT IT'S HAPPENING RIGHT NOW. SUBACUTE GENERALLY MEANS
16 IT'S HAPPENED WITHIN THE LAST SIX WEEKS AND YOU DON'T KNOW
17 THE EXACT TIME, BUT IT ISN'T SOMETHING THAT HAPPENED YEARS
18 AGO WHICH WOULD BE CHRONIC. AND SO THOSE ARE THE THREE
19 TERMS WE USE. CHRONIC MEANING SEVERAL MONTHS AGO; SUBACUTE,
20 SIX WEEKS TO MAYBE A WEEK AGO; AND ACUTE, SOMETHING THAT
21 JUST BARELY HAPPENED.
22 Q. SO IN TERMS OF THE HOSPITALIZATION THAT TOOK PLACE IN
23 AUGUST, LATTER PART OF AUGUST, AUGUST 25, AS I RECALL?
24 A. CORRECT.
25 Q. WAS THAT DESCRIBED IN ANY FASHION AS AN ACUTE EVENT OR
1001
1 SUBACUTE EVENT OR DO YOU KNOW?
2 A. MY CHART'S GONE.
3 MR. STIRBA: DO YOU WANT A COPY OF THE REPORT?
4 WOULD THAT HELP YOU?
5 THE WITNESS: YEAH, JUST THE WORDING. THAT WOULD
6 BE DR. PEARCE'S NOTE. JUST THE WORDING SO I CAN SEE WHAT
7 HE'S REFERRING TO. THAT WOULD BE HELPFUL.
8 MR. STIRBA: MAY I APPROACH, YOUR HONOR?
9 THE COURT: YES. IS THAT WHAT YOU NEED?
10 THE WITNESS: THAT'S A BRAIN C.A.T. SCAN. THIS IS
11 8/25, REFERRING TO DR. PEARCE'S NOTES.
12 MR. WILSON: I ASSUME SO.
13 MR. STIRBA: WAIT A MINUTE. SHE WAS ACTUALLY AT
14 L.D.S. HOSPITAL, THEN THEY TRANSFERRED. HERE'S THE
15 COTTONWOOD RECORD. THAT'S AT L.D.S. HOSPITAL.
16 THE WITNESS: OKAY. THERE. I'M TRYING TO REMEMBER
17 WHAT WE WERE TALKING ABOUT WHEN SUBACUTE CAME UP.
18 THE COURT: DO YOU WANT TO REPHRASE THE QUESTION OR
19 JUST ASK IT AGAIN?
20 Q. (BY MR. WILSON) WHY DON'T I JUST MOVE ON AT THIS TIME.
21 WELL, I CAN ASK A FURTHER QUESTION AS TO THE SUBACUTE. DO I
22 UNDERSTAND THE MEANING OF THAT TO MEAN THAT MAYBE THE SIGNS
23 OR THE SYMPTOMS AS A RESULT OF HAVING A SUBACUTE EVENT MAY
24 NOT BE MANIFEST UNTIL SEVERAL DAYS DOWN THE ROAD OR IS IT
25 JUST SOMETHING THAT MAYBE WAS NOT PICKED UP ON UNTIL --
1002
1 A. IT COULD BE MORE SUBTLE AND THEN SOMEBODY FINALLY
2 RECOGNIZES SAYING, HEY, SHE HAD BEEN ACTING FUNNY FOR A
3 LITTLE WHILE, BUT THIS IS GETTING WORSE. WE NEED TO CHECK
4 IT OUT.
5 Q. WAS THERE ANY EVIDENCE THAT THIS WAS AN ACUTE EVENT?
6 A. C.A.T. SCAN DID NOT REVEAL THAT AND SO WE DON'T HAVE
7 EVIDENCE THAT IT WAS.
8 Q. NOW, C.A.T. SCAN DIDN'T REVEAL ANY INTRACRANIAL
9 BLEEDING?
10 A. NO.
11 Q. WAS THERE A SUBSEQUENT C.A.T. SCAN DONE 'CAUSE YOU HAD
12 HER UNDER OBSERVATION FOR SEVERAL DAYS FOR SUBDURAL
13 HEMATOMAS?
14 A. THERE WAS A C.A.T. SCAN DONE IN AUGUST. THEY WERE
15 TALKING ABOUT THE AUGUST ONE AND ONE DONE IN SEPTEMBER.
16 BACK UP. THERE WAS ONLY ONE DURING THAT SEPTEMBER
17 ADMISSION.
18 Q. THE SEPTEMBER ADMISSION WAS FOR THE FALL?
19 A. YES.
20 Q. OKAY. AND YOU DID NOT NOTE ANY -- THAT WAS JUST THE ONE
21 C.A.T. SCAN THAT WAS DONE ON THAT PARTICULAR --
22 A. IT WAS A C.A.T. SCAN DONE TO -- I DON'T KNOW HOW
23 AGGRESSIVE WE WOULD HAVE GOTTEN HAD WE SHOWN BLEEDING IN THE
24 HEAD IN LIGHT OF HOW THE FAMILY FELT, BUT YOU ALWAYS LIKE TO
25 KNOW WHAT'S GOING ON SO YOU CAN RECOMMEND TO THE FAMILY AND
1003
1 THEN THEY CAN HELP YOU MAKE THE DECISION.
2 Q. NOW, YOU INDICATED YOU DIAGNOSED HER WITH CORONARY
3 ARTERY DISEASE; IS THAT CORRECT?
4 A. WELL, THE FAMILY TOLD ME THAT SHE HAD IT AND THAT WAS
5 THE EXTENT OF MY DIAGNOSING.
6 Q. SO YOU DIDN'T DO ANY TESTING TO DETERMINE --
7 A. NO.
8 Q. -- EVIDENCE OF THAT PARTICULAR DISEASE?
9 A. I DID NOT.
10 Q. OKAY. WAS THERE ANYTHING THAT WOULD INDICATE TO YOU AS
11 TO THE NATURE OR THE SEVERITY OF THE CORONARY ARTERY DISEASE
12 THIS INDIVIDUAL MAY HAVE HAD?
13 A. I BELIEVE THEY MENTIONED THAT SHE HAD HAD EITHER
14 PREVIOUS CHEST PAIN OR A PREVIOUS SMALL HEART ATTACK IS THE
15 WAY THAT WAS DIAGNOSED IN THE PAST.
16 Q. SO YOU WOULDN'T HAVE ANY INFORMATION INDEPENDENT OF WHAT
17 WAS REPRESENTED TO YOU ON THAT MATTER?
18 A. NO.
19 Q. OKAY. DID SHE SEEM TO HAVE A FULL RECOVERY FROM THE
20 FALL IN SEPTEMBER?
21 A. I DON'T KNOW THAT I WOULD SAY FULL BECAUSE SHE DID SEEM
22 TO BE A LITTLE BIT MORE AGITATED OVER THE FOLLOWING TWO OR
23 THREE MONTHS AND WHETHER THAT WAS A RESULT OF THE FALL OR
24 JUST THE DEMENTIA PROCESS GETTING A LITTLE WORSE, IT'S HARD
25 TO SAY. BUT I THINK SHE HAD A LITTLE BIT OF A DECLINE FROM
1004
1 SEPTEMBER TILL DECEMBER.
2 Q. COUNSEL MADE A COMMENT TO YOU THAT THESE TYPES OF
3 CLINICAL OBSERVATIONS ARE DIFFICULT GIVEN THE NATURE OF
4 THESE CIRCUMSTANCES. WHAT TYPE OF CIRCUMSTANCES ARE WE
5 TALKING ABOUT HERE WHEN YOU ANSWERED YES TO THAT PARTICULAR
6 QUESTION?
7 A. WHEN YOU HAVE THE PATIENT THAT'S CONFUSED AND YOU ARE
8 RECEIVING REPORTS FROM VARIOUS OBSERVERS, SOME THAT ARE
9 SKILLED IN OBSERVING AND SOME THAT AREN'T SKILLED IN
10 OBSERVING, AND THEN YOU TRY AND PUT THE WHOLE PICTURE
11 TOGETHER, SOMETIMES IT'S DIFFICULT TO DRAW AN ACCURATE
12 CONCLUSION. THE PATIENT WASN'T ABLE TO TELL ME IF SHE HURT
13 OR WHERE IT HURT. THE PATIENT WASN'T ABLE TO TELL ME THAT
14 SHE WAS HUNGRY OR NOT HUNGRY. THE NURSES SAID THAT SHE
15 WOULD TRY AND GET OUT OF HER BED WHEN SHE WASN'T SUPPOSED TO
16 AND THEY WEREN'T WATCHING HER. THESE ARE THE TYPE OF
17 INFORMATION I WAS TRYING TO SIFT THROUGH AND MAKE A DECISION
18 ON WHAT TO DO ABOUT IT.
19 Q. SO I TAKE IT THE MORE INFORMATION YOU CAN GATHER ABOUT
20 THE PATIENT --
21 A. THE BETTER.
22 Q. -- THE MORE CAPABLE YOU WERE OF MAKING THOSE KIND OF
23 OBSERVATIONS?
24 A. CORRECT.
25 Q. OKAY.
1005
1 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
2 HONOR.
3 THE COURT: ANYTHING FURTHER OF THIS WITNESS?
4 MR. STIRBA: NO, YOUR HONOR, THANK YOU.
5 THE COURT: MAY HE BE EXCUSED?
6 MR. STIRBA: YES.
7 THE COURT: THANK YOU.
8 I THINK WE HAVE ONE OTHER WITNESS. I THINK WHAT WE'LL
9 DO, LADIES AND GENTLEMEN, BEFORE WE START THAT, LET'S TAKE A
10 BREAK RIGHT NOW.
11 AND WILL THIS BE MORE THAN AN HOUR?
12 MR. WILSON: I DOUBT IT, YOUR HONOR.
13 THE COURT: THEN WHAT I THINK WE'LL DO, WE'LL TAKE
14 A 15-MINUTE BREAK TILL FIVE MINUTES TO 4. WE'LL BE DONE BY
15 5.
16 WHILE YOU ARE OUT, REMEMBER NOT TO CONVERSE AMONG
17 YOURSELVES OR WITH ANYONE ELSE OR ALLOW YOURSELF TO BE
18 ADDRESSED BY ANY PERSON ON THE SUBJECT OF THIS TRIAL. AND
19 ALSO DO NOT FORM OR EXPRESS AN OPINION UNTIL THE CASE IS
20 FINALLY SUBMITTED TO YOU AFTER YOU'VE HEARD ALL THE
21 EVIDENCE.
22 SO WE'LL BE IN RECESS UNTIL FIVE MINUTES TO 4.
23 (WHEREUPON, COURT IS IN RECESS.)
24 THE COURT: THE RECORD WILL REFLECT THAT THE
25 ATTORNEYS, THE DEFENDANT AND THE JURY ARE ALL PRESENT.
1006
1 MR. WILSON, WOULD YOU LIKE TO CALL THE NEXT WITNESS?
2 MR. WILSON: YES, YOUR HONOR. WE CALL DR. JAMES
3 PEARCE TO THE STAND AT THIS TIME.
4 JAMES PEARCE,
5 CALLED BY THE PLAINTIFF, HAVING BEEN DULY
6 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS:
7 DIRECT EXAMINATION
8 BY MR. WILSON:
9 Q. DR. PEARCE, WOULD YOU STATE YOUR FULL NAME FOR THE
10 RECORD?
11 A. JAMES RICHARD MCGHIE PEARCE, M-C-G-H-I-E.
12 Q. AND WHAT IS YOUR CURRENT OCCUPATION?
13 A. INTERNAL MEDICINE PRIMARY CARE PRACTICE.
14 Q. AND WHERE DO YOU OFFICE?
15 A. 56 SOUTH AND HIGHLAND DRIVE.
16 Q. CAN YOU TELL US WHEN YOU OBTAINED YOUR MEDICAL DEGREE?
17 A. IN 1970, IN JUNE.
18 Q. AND FROM WHERE?
19 A. CRETIN UNIVERSITY, OMAHA, NEBRASKA. Creighton?
20 Q. ARE YOU BOARD CERTIFIED IN ANY --
21 A. YES, INTERNAL MEDICINE.
22 Q. AND WHEN DID YOU OBTAIN YOUR CERTIFICATION?
23 A. 1974.
24 Q. HOW LONG HAVE YOU PRACTICED IN THE HOLLADAY AREA?
25 A. SINCE 1974.
1007
1 Q. ARE YOU ASSOCIATED WITH OTHER PHYSICIANS THERE?
2 A. YES. I'M IN AN I.H.C. POD, IF YOU WILL, WITH DR. MCCAA,
3 DR. ARENA, DR. PODOLSKY AND DR. STEVENS. I GUESS I GOT THEM
4 ALL.
5 Q. I TAKE IT THAT THERE ARE TIMES THAT YOU COVER FOR EACH
6 OTHER?
7 A. THAT'S CORRECT.
8 Q. THIS CASE INVOLVES AN INDIVIDUAL BY THE NAME OF JUDITH
9 LARSEN. DO YOU RECOGNIZE THAT NAME?
10 A. I DO.
11 Q. HAVE YOU HAD OCCASION TO REVIEW THE FILE MAINTAINED IN
12 YOUR OFFICE IN CONNECTION WITH THAT PATIENT?
13 A. YES, I HAVE.
14 Q. AND I'M JUST GOING TO CUT TO THE CHASE HERE. DID YOU
15 HAVE OCCASION TO SEE JUDITH LARSEN IN REFERENCE TO A
16 HOSPITALIZATION OCCURRING IN JULY OF 1995?
17 A. I DID.
18 Q. AND WHAT HOSPITAL WAS THAT AT?
19 A. COTTONWOOD HOSPITAL.
20 Q. CAN YOU TELL THE COURT WHAT THE NATURE OF THE PROBLEM
21 WAS THAT JUDITH LARSEN WAS HOSPITALIZED ON THAT PARTICULAR
22 OCCASION?
23 A. YES. SHE CAME FROM A NURSING HOME OR REST HOME OF SOME
24 SORT AND SHE WAS ADMITTED FOR DEHYDRATION.
25 Q. HOW LONG WAS THAT HOSPITALIZATION?
1008
1 A. I THINK IT WAS JUST A 24-HOUR ADMISSION, SOMETHING LIKE
2 THAT.
3 Q. WHAT DID YOU PERSONALLY DO IN REFERENCE TO THAT
4 HOSPITALIZATION?
5 A. SHE WAS PRETTY MUCH REHYDRATED IN THE EMERGENCY ROOM, SO
6 WHEN I SAW HER SHE WAS PRETTY MUCH STABILIZED. AND SO I
7 JUST FOLLOWED THROUGH, MADE SURE THAT THE DISPOSITION WAS
8 APPROPRIATE AND THAT HER CARE WOULD BE CONTINUED ON THE
9 OUTPATIENT BASIS.
10 Q. DID YOU MEET WITH THE FAMILY ON THAT OCCASION OR DO YOU
11 REMEMBER?
12 A. YOU KNOW, I DON'T RECALL. I THINK THERE WAS NOBODY
13 AVAILABLE AT THE TIME OF ADMISSION, AS I RECALL, SO
14 SUBSEQUENTLY I GOT SOME HISTORY FROM THE FAMILY. I BELIEVE
15 THAT'S THE WAY IT WENT.
16 Q. DR. PEARCE, DID YOU HAVE OCCASION THEN TO AGAIN EVALUATE
17 THIS PATIENT IN THE HOSPITAL SETTING?
18 A. I DID.
19 Q. AND WHEN DID THAT OCCUR, SIR?
20 A. I THINK IT WAS THE 25TH OF AUGUST.
21 Q. CAN YOU TELL US THE NATURE OF THAT PARTICULAR
22 HOSPITALIZATION?
23 A. WELL, AT THAT TIME THE FAMILY SAID THAT SHE HAD HAD A
24 CHANGE IN HER LEVEL OF AWARENESS, ALERTNESS. THAT SHE HAD
25 HAD DIFFICULTY WITH AMBULATION AND A DIFFICULTY WITH SPEECH.
1009
1 THE SPEECH HAD ALWAYS BEEN SORT OF INAPPROPRIATE, BUT THERE
2 HAD BEEN A CHANGE.
3 Q. AND WERE YOU ABLE TO ASCERTAIN FROM YOUR RECORDS AND
4 FROM EVALUATING HER ON THAT PARTICULAR OCCASION IF THERE
5 INDEED HAD BEEN SOME CHANGES, OR WAS IT WHAT HAD BEEN
6 REPORTED TO YOU BY THE FAMILY?
7 A. YEAH. AT THE TIME OF ADMISSION THEY SAID THAT SHE WAS
8 VERBALIZING QUITE A BIT, BUT THE CONTENT OF HER SPEECH
9 WASN'T VERY APPROPRIATE, REPEATING HERSELF OFTEN. VERY
10 LIMITED MEMORY AND SOME INAPPROPRIATE, AS I MENTIONED, AND
11 SHE WENT FROM THAT TO VERY LITTLE SPEECH AT ALL. MAYBE JUST
12 A WORD OR TWO.
13 Q. WHAT DID THIS INDICATE TO YOU?
14 A. WELL, WE THOUGHT THAT IT WAS PROBABLY ANOTHER STROKE
15 THAT WAS SHOWING UP IN THE SPEECH AREA OF THE BRAIN. IT
16 DIDN'T SHOW UP ON THE C.T. SCAN, BUT THE E.E.G. SUGGESTED
17 THAT THERE WAS AN IRRITATIVE -- SOME IRRITATION, AS THEY
18 SAID, IN THAT AREA WHICH WAS COMPATIBLE WITH AN ACUTE
19 STROKE.
20 Q. THE FACT THIS DIDN'T SHOW UP ON THE C.T. SCAN, IS THAT
21 SIGNIFICANT TO YOU?
22 A. WELL, SOMETIMES WHEN THE E.E.G. IS DONE EARLY IT DOESN'T
23 SHOW UP AND THEN IF YOU ARE INTERESTED IN PURSUING IT, YOU
24 CAN DO A SUBSEQUENT C.T. SCAN AND SOMETIMES IT WILL SHOW ON
25 THE SECOND ONE.
1010
1 Q. DO YOU KNOW WHETHER OR NOT THAT INDEED WAS DONE IN THIS
2 PARTICULAR CASE?
3 A. IT WASN'T. WE DIDN'T THINK -- WE THOUGHT IT WAS
4 EXCESSIVE.
5 Q. WHEN YOU SAY SUBSEQUENT, IF THERE WAS ONE DONE SEPTEMBER
6 THE 14TH, WOULD THAT BE WITHIN THE TIME FRAME THAT YOU MIGHT
7 KNOW WHETHER OR NOT THERE HAD BEEN A NEW STROKE?
8 A. WELL, I THINK THAT THE C.T. WAS COMPARED WITH THE
9 PREVIOUS C.T. THAT HAD BEEN DONE PERHAPS IN JANUARY AND THAT
10 THEY DIDN'T SEE ANY SIGNIFICANT CHANGE.
11 Q. I'M GOING TO PUT A DOCUMENT HERE ON THE SCREEN FOR YOU
12 TO TAKE A LOOK AT. YOU'LL BE ABLE TO SEE IT UP ON THAT
13 BOARD.
14 MR. STIRBA: MAY I KNOW WHAT EXHIBIT YOU ARE
15 REFERRING TO, COUNSEL, OR WHAT RECORD IT IS?
16 MR. WILSON: DO YOU KNOW WHAT RECORD IT IS?
17 MR. STIRBA: JUST TELL WHAT RECORD IT IS.
18 MR. WILSON: THIS IS THE --
19 MR. STIRBA: IS IT ONE OF OUR EXHIBITS, EXHIBIT 16?
20 MR. WILSON: IT'S EXHIBIT 16.1.
21 MR. STIRBA: THAT'S FINE, COUNSEL. THANK YOU.
22 MR. WILSON: AND IT'S A RECORD OF A C.T. SCAN THAT
23 WAS DONE AT COTTONWOOD HOSPITAL. I'VE GOT TO PUT IT THIS
24 WAY.
25 Q. (BY MR. WILSON) CAN YOU READ THAT, DOCTOR?
1011
1 A. WITH DIFFICULTY.
2 THE COURT: IF YOU WANT TO STEP TO THE SCREEN.
3 Q. (BY MR. WILSON) STEP TO THE SIDE THOUGH AND STEP BACK.
4 CAN YOU TELL US WHAT THAT DOCUMENT IS?
5 A. IT'S A REPORT OF A C.T. SCAN OF THE BRAIN.
6 Q. OKAY. AND CAN YOU TELL US WHAT THE FINDINGS ARE IN
7 RESPECT TO THAT PARTICULAR REPORT?
8 A. WELL, THE IMPRESSION, AS YOU CAN SEE THERE, THERE WAS NO
9 EVIDENCE OF ACUTE HEMORRHAGE OR CORTICAL OR CEREBROVASCULAR
10 ACCIDENT DEMONSTRATED. AND THEN THEY SAID LEFT HEMISPHERIC
11 AREA OF MALACIA, WHICH IS SOFTENING OF THE BRAIN WHICH IS
12 CONSISTENT WITH OLD ARTERIES OR ARTERY DISTRIBUTION INFARCTS
13 OR STROKES.
14 Q. SO IF I WERE TO ADVISE YOU THAT SHE HAD SUSTAINED A
15 STROKE BACK IN JANUARY OF 1995, WOULD THAT BE CONSISTENT
16 WITH WHAT YOU FIND ON THAT PARTICULAR DOCUMENT?
17 A. YES, IT WOULD, IF THE STROKE DIDN'T OCCUR EARLIER.
18 Q. OKAY. ON THE AUGUST OCCASION, SIR, DO YOU KNOW HOW LONG
19 SHE WAS HOSPITALIZED FOR?
20 A. LET'S SEE. I THINK IT WAS THE 25TH THROUGH THE 27TH OR
21 28TH, SOMETHING LIKE THAT.
22 Q. OKAY. AND DID YOU SEE HER PERSONALLY ON THOSE -- THAT
23 OCCASION?
24 A. YES, I DID.
25 Q. AND HOW MANY OCCASIONS DO YOU THINK YOU VISITED WITH
1012
1 HER?
2 A. WELL, I SAW HER EVERY DAY, YOU KNOW, THAT SHE WAS IN THE
3 HOSPITAL.
4 Q. SHE WAS SUBSEQUENTLY DISCHARGED. DID YOU HAVE OCCASION
5 TO MEET WITH THE FAMILY ON THAT?
6 A. YES. I MET WITH THE FAMILY. I'M JUST REMEMBERING FROM
7 MY RECORD HERE IN REGARD TO THE DISPOSITION AND WHAT KIND OF
8 CARE SHE SHOULD RECEIVE. IN OTHER WORDS, WHAT THE FAMILY'S
9 WISHES FOR HER AND HOW AGGRESSIVE THEY WANTED US TO BE AND
10 SO FORTH AND TAKING INTO ACCOUNT HER LIVING WILL I BELIEVE
11 THAT SHE HAD SIGNED AND SO FORTH SO THAT WE WOULD KNOW WHAT
12 TO DO. SHE CAME IN REFUSING TO EAT, FOR INSTANCE, AND
13 DURING HER HOSPITAL STAY WE HAD A GREAT DEAL OF DIFFICULTY
14 WITH THAT. HAD SOME STUDIES DONE AND SO FORTH WHICH SHOWED
15 THAT SOME OF WHAT WE CALL ASPIRATION OR SOME OF THE FOOD OR
16 FLUIDS WERE GOING INTO THE LUNGS AND SHE HAD A VERY
17 DIFFICULT TIME INITIATING SWALLOWING AND MECHANICS OF
18 EATING, AND SHE SHOWED NO INTEREST IN EATING OR DRINKING.
19 NORMALLY A PERSON LIKE THAT, IF THEY DON'T HAVE A FEEDING
20 TUBE OF SOME SORT EITHER THROUGH THE STOMACH OR DOWN THE
21 NOSE OR IN A VEIN IN THE ARM AND SO FORTH, IF THEY DON'T
22 HAVE ANY NUTRITION AND THEY DON'T DRINK, USUALLY ONLY LAST
23 ABOUT EIGHT OR TEN DAYS. SO WE WERE LOOKING AT END-OF-LIFE
24 CARE UNLESS SOMETHING HAPPENED DIFFERENTLY.
25 Q. AND IS THAT IN REFERENCE TO THE NOTE THAT YOU MADE IN
1013
1 THE RECORD AS FAR AS RELEASING FOR TERMINAL CARE?
2 A. THAT'S CORRECT.
3 Q. SO YOUR UNDERSTANDING AT THAT TIME WAS -- IS THAT SHE
4 WASN'T EATING. WAS THAT THE PRIMARY FACTOR IN MAKING THAT
5 NOTE?
6 A. WELL, THE PRIMARY FACTOR WAS JUST HER TOTAL PRESENTATION
7 THAT SHE HAD. IN DISCUSSION WITH THE FAMILY, DURING THE
8 PREVIOUS SIX MONTHS HAD A VERY POOR QUALITY OF LIFE.
9 ALTHOUGH SHE HAD SOME SPEECH, IT WAS USUALLY INAPPROPRIATE
10 AND REPETITIVE. AND ALTHOUGH THERE WAS SOME RECOGNITION OF
11 FAMILY MEMBERS, SHE DIDN'T REALLY HAVE ANY JOY IN MEETING
12 WITH THEM AND EXPERIENCING THEM AND THEY DIDN'T HAVE ANY
13 WITH HER. SHE DIDN'T HAVE ANY DECISION-MAKING CAPABILITY OR
14 CHOICE MAKING AND SO THEY THOUGHT THAT SHE -- HER QUALITY OF
15 LIFE WAS SUCH THAT IF ANYTHING SHOULD HAPPEN LIKE INFECTION
16 AND SO FORTH THAT THEY WOULD NOT BE AGGRESSIVE WITH HER.
17 Q. WITH THE TREATMENT. OKAY.
18 MR. WILSON: I HAVE NO FURTHER QUESTIONS, YOUR
19 HONOR.
20 CROSS-EXAMINATION
21 BY MR. STIRBA:
22 Q. GOOD AFTERNOON, DOCTOR.
23 A. GOOD AFTERNOON.
24 Q. I WANT TO SHOW YOU SOME MATERIALS FROM THE TWO TIMES
25 THAT YOU TREATED JUDITH AT THE HOSPITAL AND THIS WOULD BE AT
1014
1 COTTONWOOD; IS THAT RIGHT?
2 A. THAT'S CORRECT.
3 Q. AND THE JULY HOSPITALIZATION APPARENTLY WAS AS A RESULT
4 OF A FALL THAT SHE SUSTAINED AND YOU SAW HER IN THE HOSPITAL
5 AT THAT TIME; IS THAT RIGHT?
6 A. WELL, MY UNDERSTANDING WAS THAT SHE -- THAT SHE ENTERED
7 WITH DEHYDRATION, WAS INCOHERENT AND SO FORTH.
8 Q. YOU KNOW, YOU ARE RIGHT. LET ME JUST SHOW YOU THIS.
9 THIS IS WHAT I WAS REFERRING TO. UNDER HOSPITAL COURSE,
10 "THE PATIENT WAS TREATED WITH HYDRATION AND HAD AN
11 UNEVENTFUL HOSPITAL COURSE OTHER THAN HER FAMILY ATTEMPTED
12 TO WALK HER IN THE MORNING AND SHE LOST HER BALANCE, FELL
13 AND SUFFERED SOME SORENESS."
14 SHE ACTUALLY FELL IN THE HOSPITAL?
15 A. YES.
16 Q. NOW, THERE WERE SOME TESTS DONE AT THAT TIME AND I
17 WANTED TO GO OVER THOSE WITH YOU. AND ONCE AGAIN, FEEL FREE
18 TO STEP DOWN AND LOOK AT THAT. NOW, THAT APPEARS TO BE AN
19 X-RAY REPORT; IS THAT RIGHT?
20 A. THAT'S CORRECT.
21 Q. AND I NOTICE IN THE MIDDLE THERE THE -- FIRST OF ALL,
22 THE ABDOMEN, TWO VIEWS, ERECT AND SUPINE. IT SAYS,
23 EXTENSIVE VASCULAR CALCIFICATION IS SEEN IN THE ABDOMEN
24 WHICH INCLUDES THE SPHENIC ARTERY, THE AORTA AND THE ILIAC
25 ARTERIES.
1015
1 DID I READ THAT CORRECTLY?
2 A. YES.
3 Q. WOULD YOU TELL US WHAT THAT MEANS, PLEASE?
4 A. WELL, THAT MEANS THAT SHE HAD SYSTEMIC BLOOD VESSEL
5 DISEASE, YOU KNOW, SO YOU COULD EXPECT THAT WITH CORONARY
6 ARTERIES. AND I THINK WE SUSPECTED ISCHEMIC HEART DISEASE,
7 AS WE CALL IT, YOU KNOW, OR CHANGE IN THE ARTERIES SO THAT
8 YOU ARE HEADING FOR A HEART ATTACK, FOR INSTANCE. AND YOU
9 COULD EXPECT THAT IN THE ARTERIES INSIDE THE BRAIN AS WELL,
10 PERHAPS IN THE NECK, YOU KNOW. SO IT'S JUST GENERALIZED
11 BLOOD VESSEL DISEASE OR ARTERIAL DISEASE.
12 Q. AND IS MEDICATION PRESCRIBED FOR THAT?
13 A. NO.
14 Q. IS ISOSORBIDE, IS THAT A CARDIAC MEDICATION?
15 A. YES. THAT'S A CORONARY VASAL DILATOR THAT CAN ALSO BE
16 GIVEN FOR ESOPHAGEAL SPASM. WHEN I SAY MEDICINE ISN'T
17 PRESCRIBED FOR IT, I SHOULD SAY THAT WE PUT A PERSON LIKE
18 THAT ON ASPIRIN PERHAPS THINKING THAT MAYBE WE COULD KEEP
19 PLATELETS FROM STICKING TOGETHER, AGGREGATING AND PERHAPS
20 MAKING ANOTHER STROKE. IF THE CHOLESTEROL WAS HIGH WE WOULD
21 PROBABLY GIVE THEM MEDICINES TO TRY TO REDUCE THAT, YOU
22 KNOW, AND TRY TO PREVENT ANY FURTHER PROGRESSION OF THE
23 DISEASE. BUT AS FAR AS GIVING ANY MEDICINE THAT WOULD
24 REVERSE WHAT SHE HAS THERE, UNLESS THE CHOLESTEROL WAS HIGH,
25 THERE ISN'T ANYTHING THAT WE HAVE RIGHT NOW THAT WOULD DO
1016
1 THAT.
2 Q. I NOTICE IN SOME OTHER -- EITHER IN YOUR DISCHARGE
3 SUMMARY OR ONE OF YOUR ADMISSION HISTORY AND PHYSICALS, YOU
4 REFERENCE ISCHEMIC HEART DISEASE?
5 A. YES.
6 Q. IS THIS PARTICULAR X-RAY FINDING CONSISTENT WITH
7 ISCHEMIC HEART DISEASE?
8 A. WELL, ALL YOU CAN SAY IS THERE IS SYSTEMIC ARTERIAL
9 DISEASE AND YOU CAN SUSPECT THAT THERE IS ISCHEMIC HEART
10 DISEASE, BUT YOU COULDN'T SAY IT WAS THERE UNTIL YOU DID
11 SOME STUDY TO DEMONSTRATE IT.
12 Q. PERHAPS YOU COULD EXPLAIN TO THE JURY THE DIFFERENCE
13 BETWEEN THE ISCHEMIC HEART DISEASE AND PERHAPS CORONARY
14 DISEASE.
15 A. WELL, THERE REALLY ISN'T ANY DIFFERENCE. YOU KNOW,
16 THEY ARE ESSENTIALLY THE SAME.
17 Q. WHAT DOES ISCHEMIC MEAN?
18 A. ISCHEMIC MEANS AN AREA OR A TISSUE ISN'T GETTING ENOUGH
19 BLOOD.
20 Q. AND SO, FOR EXAMPLE, IN ISCHEMIC HEART DISEASE, WOULD
21 THE TISSUE BE THE HEART MUSCLE ITSELF?
22 A. YEAH. YES.
23 Q. AND IT'S TRUE, IS IT NOT, THAT IF PORTIONS OF THE HEART
24 MUSCLE TISSUE ARE DEPRIVED OF AN ADEQUATE BLOOD SUPPLY, THAT
25 COULD RESULT IN A HEART ATTACK; IS THAT CORRECT?
1017
1 A. THAT'S CORRECT.
2 Q. AND THEN ALSO ON THIS -- AND PERHAPS YOU CAN SEE IT FROM
3 THERE. IT SAYS, MULTILEVEL DEGENERATIVE CHANGES AND
4 SPURRING SEEN AT THE LUMBAR SPINE. DO YOU KNOW WHAT THAT IS
5 REFERRING TO?
6 A. WELL, THOSE ARE THE KIND OF CHANGES THAT MOST OF US HAVE
7 OVER AGE 30 IN OUR SPINE. THEY JUST COME FROM WEAR AND TEAR
8 AND WHAT'S CALLED OSTEOARTHRITIS AND THE CHANGE OF
9 OSTEOARTHRITIS.
10 Q. IS THERE ANYTHING PARTICULARLY CLINICALLY SIGNIFICANT TO
11 YOU ABOUT THAT FINDING GIVEN THE CIRCUMSTANCES THAT
12 PRESENTED ITSELF AT THAT TIME?
13 A. NO, I DON'T THINK SO.
14 Q. THE NEXT ONE, DOCTOR, IS ANOTHER CHEST X-RAY. AND I
15 WANT TO DRAW PARTICULAR ATTENTION TO THE REFERENCE IN THE
16 MIDDLE. FIRST OF ALL, IT SAYS THE AORTA IS ATHEROSCLEROTIC.
17 DO YOU SEE THAT?
18 A. YES, I DO.
19 Q. WHAT DOES THAT MEAN?
20 A. WELL, ONCE AGAIN, THAT MEANS THAT THE LINING OF THE
21 ARTERY IS SCLEROSED OR IS BECOMING, YOU KNOW, CALCIFIED, FOR
22 INSTANCE, SO IT SHOWS UP ON THE FILM NOT AS ORDINARY, NORMAL
23 SOFT TISSUE, BUT THERE'S DEPOSITS OF CALCIUM AND SO FORTH.
24 AND SO THAT'S WHAT SCLEROTIC MEANS. AND, ONCE AGAIN, IT'S
25 REFERRING TO THE OVERALL PROCESS OF THE ARTERIES AND
1018
1 DEGENERATION OF THOSE ARTERIES AND HARDENING OF THE ARTERIES
2 IS WHAT IT'S CALLED COMMONLY.
3 Q. AND THAT'S CONSISTENT WITH THE DISEASE PROCESS THAT YOU
4 JUST TESTIFIED TO; IS THAT RIGHT?
5 A. YOU MEAN THE OSTEOARTHRITIS?
6 Q. NO. THE HARDENING OF THE ARTERIES IS CONSISTENT WITH
7 EITHER ISCHEMIA OR CORONARY DISEASE; IS THAT RIGHT?
8 A. YES.
9 Q. NOW, THE NEXT ONE AFTER THAT IT SAYS, THE LUNGS SHOW
10 BILATERAL INTERSTITIAL LUNG DISEASE.
11 A. YES.
12 Q. WHAT IS BILATERAL INTERSTITIAL LUNG DISEASE?
13 A. WELL, IT MEANS SOME OF THE NORMAL LUNG TISSUE HAS BEEN
14 REPLACED WITH SCAR TISSUE AND SO IT'S NOT AVAILABLE FOR
15 BREATHING. IT'S NOT AVAILABLE FOR GAS EXCHANGE. AND IT'S A
16 DISEASE THAT WE USUALLY DON'T FIND A DIAGNOSIS OF. AND IT
17 CAN OCCUR FROM MANY DIFFERENT THINGS. VERY LONG LIST OF
18 THINGS CAN HAVE THIS AS AN END POINT.
19 Q. THE FACT THAT THERE WAS A FINDING OF SCAR TISSUE IS
20 INDICATIVE OF WHAT EVENT THAT WOULD HAVE CAUSED THAT?
21 A. WELL, YOU REALLY CAN'T SAY WHAT THE ETIOLOGY WAS. AS I
22 SAY, PROBABLY MORE THAN 50 PERCENT OF THE TIME WE NEVER FIND
23 THE CAUSE. EVEN WHEN THE LUNG TISSUE IS BIOPSIED, WE STILL
24 DON'T KNOW WHAT THE INCITING EVENT WAS.
25 Q. WHAT IS THE TREATMENT FOR THAT CONDITION?
1019
1 A. WELL, YOU KNOW, AT THIS STAGE, YOU KNOW, YOU WOULD WANT
2 TO KNOW IF THE OXYGEN IS OKAY IN THE BLOOD. IF YOU WERE,
3 YOU KNOW, VIGOROUSLY GOING AFTER THIS AND YOU SUPPLEMENT THE
4 OXYGEN, IF IT NEEDED TO BE. YOU COULD RUN THROUGH A
5 DIFFERENTIAL DIAGNOSIS OR A LIST OF THINGS THAT COULD CAUSE
6 SOMETHING LIKE THIS. A BIOPSY WOULD PROBABLY BE SOMETHING
7 YOU COULD DO TO TRY TO FURTHER DETERMINE WHAT THE ETIOLOGY
8 IS. AND IT'S JUST A QUESTION OF HOW AGGRESSIVE TO BE IN ANY
9 ONE INDIVIDUAL.
10 Q. NOW, THAT PARTICULAR DISEASE AS DESCRIBED BY THAT
11 REPORT, WOULD THAT CAUSE AN IMPAIRMENT, FOR EXAMPLE, OF THE
12 ABILITY OF THE BODY TO REGULATE OR DISTRIBUTE OXYGEN?
13 A. IT'S POSSIBLE THAT IT WOULD -- THAT THE OXYGEN, THE
14 ARTERIAL OXYGEN COULD BE DOWN BECAUSE OF THAT. IT'S
15 POSSIBLE. YOU KNOW, DOES IT SAY WHAT DEGREE THIS IS?
16 Q. WELL, IT SAYS -- AFTER THAT IT SAYS, NO DENSE
17 CONSOLIDATION OR MAJOR PLURAL FLUID COMPONENTS ARE DEFINED.
18 AND I DON'T SEE ANYTHING ELSE WITH RESPECT TO THAT ONE. IT
19 SAYS DIFFUSE INTERSTITIAL LUNG DISEASE, IF THAT MEANS
20 ANYTHING.
21 A. YEAH. YOU REALLY CAN'T TELL ANYTHING FROM THAT REPORT,
22 FROM THE X-RAY THEY WERE LOOKING AT, WHETHER THE OXYGEN
23 WOULD BE AFFECTED OR NOT.
24 Q. IS IT TRUE THAT BASED UPON WHAT YOU SEE THERE, WHAT YOU
25 ARE SAYING IS THAT YOU REALLY CAN'T TELL THE CLINICAL
1020
1 SIGNIFICANCE OF THE DISEASE ITSELF JUST FROM LOOKING AT THE
2 REPORT?
3 A. YES, I THINK SO.
4 Q. AND IT'S TRUE, IS IT NOT, THAT YOU PROBABLY WOULD HAVE
5 TO DO SOME OTHER DIAGNOSTIC TESTS TO DETERMINE THE SEVERITY
6 OF THE IMPAIRMENT?
7 A. UH-HUH.
8 Q. AND IT'S ALSO TRUE, IS IT NOT, THAT THAT IMPAIRMENT,
9 THAT IS THE DISEASE ITSELF, COULD BE -- COULD BE
10 SIGNIFICANTLY IMPAIRING TO THE PATIENT; ISN'T THAT TRUE?
11 A. IT'S POSSIBLE.
12 Q. AND BY THE SAME TOKEN, IT COULD BE LESS, SO DEPENDING
13 UPON WHAT TEST YOU'D RUN?
14 A. YES.
15 Q. DO YOU KNOW WHETHER, AFTER THIS FINDING WAS MADE,
16 WHETHER OR NOT MISS LARSEN HAD ANY FURTHER DIAGNOSTIC TESTS
17 WITH RESPECT TO IDENTIFYING THE SEVERITY OF THE LUNG
18 DISEASE?
19 A. I DON'T KNOW. I DON'T THINK ANYTHING AGGRESSIVE. SHE
20 MAY HAVE HAD SOME BLOOD GAS TESTS DONE, PERHAPS. BUT ONCE
21 AGAIN, IT'S NOT -- SHE WAS NOT A PERSON WHO -- IN WHOM YOU
22 WOULD AGGRESSIVELY PURSUE THIS. IN OTHER WORDS, WE WOULD
23 CALL IN A PULMONARY SPECIALIST. THEY WOULD HAVE TO GO DOWN
24 WITH THE BRONCHOSCOPE AND PUT A BIOPSY INSTRUMENT INTO THE
25 LUNG AND GET A PIECE OF THE LUNG AND LOOK AT THAT UNDER THE
1021
1 MICROSCOPE. AND THEY'D PROBABLY HAVE TO GO BACK THROUGH HER
2 MEDICATION HISTORY TO SEE IF SHE HAD EVER RECEIVED A
3 MEDICATION NITROFURANTOIN, FOR INSTANCE, THAT CAN CAUSE
4 SOMETHING LIKE THIS. THE LIST OF THINGS THAT CAN CAUSE THIS
5 IS QUITE LONG.
6 YOU WOULD HAVE TO LOOK AT THAT PERSON AND SAY, IS THIS
7 A PERSON THAT YOU WOULD BE CONCERNED ENOUGH OR YOU WOULD
8 WANT TO DO ALL THAT TO. I THINK THAT JUDGMENT CALL WAS MADE
9 AND DECIDED THAT IT WAS NOT -- THIS WAS NOT A PERSON WHO
10 DESERVED THAT KIND OF WORK UP.
11 Q. AND THE JUDGMENT CALL WAS MADE PRIMARILY BY HER FAMILY
12 IN CONJUNCTION WITH, I ASSUME, CONSULTATION WITH HER
13 PHYSICIAN?
14 A. I THINK PROBABLY OVER THIS PARTICULAR ITEM WE PROBABLY
15 DIDN'T DISCUSS IT. IT WAS PROBABLY JUST ME.
16 Q. BUT THE JUDGMENT THAT YOU MADE, I'M SURE, WAS DRIVEN IN
17 PART BY HER AGE. TRUE?
18 A. YES.
19 Q. AND CERTAINLY BY WHAT YOU UNDERSTOOD THE FAMILY WANTED?
20 A. YES, AND HER MENTAL CONDITION. CERTAINLY. THERE MAY BE
21 A BLOOD GAS REPORT IN THE EMERGENCY ROOM REPORT. SEEMED
22 LIKE THE EMERGENCY ROOM DOES BLOOD GASES ON MANY, MANY
23 PEOPLE, SO THAT IT MIGHT BE THERE.
24 Q. AND WHAT'S THE SIGNIFICANCE OF A BLOOD GAS REPORT?
25 A. WELL, IT WOULD JUST TELL YOU IF THE OXYGEN WAS ADEQUATE
1022
1 IN THE BLOOD OR NOT.
2 Q. IS THAT SIMILAR TO AN OXYGEN SYMMETRY TEST?
3 A. IT'S JUST MEASURING THE OXYGEN IN THE BLOOD.
4 Q. NOW, THIS IS HISTORY AND PHYSICAL EXAMINATION AND I JUST
5 WANTED TO POINT OUT TO YOU IN THE SECOND PARAGRAPH -- ONCE
6 AGAIN, PLEASE FEEL FREE TO APPROACH IF YOU NEED TO -- IT
7 HAS -- YOU STATE ISOSORBIDE MAY HAVE BEEN, HOWEVER, A
8 NITROGLYCERIN PREPARATION FOR HER HEART. DO YOU KNOW
9 WHETHER -- ARE YOU SAYING THERE THAT, IN FACT, THOSE WERE
10 THE MEDICATIONS THAT SHE WAS RECEIVING AT THE TIME?
11 A. THIS IS IN THE NURSING HOME YOU MEAN?
12 Q. NOW, THIS WAS THE JULY ADMISSION IN YOUR HISTORY AND
13 PHYSICAL DICTATION FOR THE JULY HOSPITALIZATION.
14 A. UH-HUH. SO IT'S TALKING ABOUT THE NURSING SHEET IN THE
15 EMERGENCY ROOM SAYING THAT SHE CAME INTO THE HOSPITAL ON
16 THESE MEDICATIONS WHICH THEN INCLUDED SOMETHING FOR THYROID.
17 SHE WAS ON ASPIRIN, SOMETHING FOR THE NERVES, EYE DROPS, AND
18 ISOSORBIDE OR NITROGLYCERIN. AND YOU CAN TELL THAT THE
19 HISTORY WAS NOT EXACT. BUT THAT WOULD BE FOR SYMPTOMATIC
20 RELIEF SO IF SHE HAD CHEST PAIN FROM CORONARY ARTERY DISEASE
21 THEY COULD GIVE HER SOME COMFORT.
22 Q. THAT'S WHAT THE NITROGLYCERIN IS FOR?
23 A. YES.
24 Q. COULD YOU TELL US HOW THAT WORKS?
25 A. IT RELAXES THE MUSCLE OF THE ESOPHAGUS, IF IT'S GIVEN
1023
1 FOR THAT REASON, FOR ESOPHAGEAL SYNERGY, WE CALL IT, SO THAT
2 IF THERE'S INAPPROPRIATE MUSCLE CONTRACTIONS IN THE
3 ESOPHAGUS OR IF A PERSON HAS CORONARY ARTERY SPASM OR IF
4 THEY -- IF THEY NEED TO HAVE A CORONARY ARTERIES RELAXED IN
5 SUCH A WAY OR DILATED SO THAT THEY CAN OBTAIN -- HEART
6 MUSCLE CAN OBTAIN MORE OXYGEN, THEN THIS MEDICINE IS GIVEN.
7 Q. NOW, THE OTHER HOSPITALIZATION WAS IN AUGUST AND YOU
8 SAW HER ON THAT OCCASION AS WELL AT THE COTTONWOOD HOSPITAL;
9 IS THAT RIGHT?
10 A. THAT'S CORRECT.
11 Q. I'M GOING TO PLACE ON THE MACHINE HERE THE DISCHARGE
12 SUMMARY WHICH YOU DICTATED FOR THAT PARTICULAR
13 HOSPITALIZATION. AND I WANT TO DRAW YOUR ATTENTION
14 SPECIFICALLY TO -- AND I HAVE TO MOVE THIS UP A BIT -- PLAN.
15 AND YOU STATE THERE, IN DISCUSSION WITH THE FAMILY IT IS
16 DECIDED THAT THE LAST SIX MONTHS OF HER LIFE HAVE BEEN VERY
17 POOR QUALITY. IN FACT, NO QUALITY AT ALL, WITH POOR
18 RECOGNITION OF PEOPLE, NO CONVERSATION, NO DECISION-MAKING.
19 FIRST OF ALL, WHAT DO YOU MEAN WHEN YOU SAY NO QUALITY
20 AT ALL?
21 A. WELL, YOU KNOW, EVERYONE DETERMINES FOR HIMSELF I GUESS
22 WHAT QUALITY OF LIFE IS. AND FOR ME IT'S ENJOYMENT OF OTHER
23 PEOPLE OR THEIR BEING ABLE TO ENJOY YOU OR BEING ABLE TO
24 MAKE MEANINGFUL DECISIONS OR MAKING SOME KIND OF -- SOME
25 KIND OF PROGRESS, PERSONAL PROGRESS, OR DOING SOMETHING
1024
1 MEANINGFUL. AND IN DISCUSSION WITH THE FAMILY IT SOUNDED
2 LIKE SHE REALLY DIDN'T HAVE ANYTHING LIKE THAT, THAT SHE WAS
3 JUST BEING KEPT ALIVE, ESSENTIALLY.
4 Q. AND THEN YOU GO ON TO STATE THE OPTION AT THE TIME OF
5 DISCHARGE TO PLACE A FEEDING TUBE, PERIPHERAL NUTRITION OR
6 N.G. TUBE. WHAT IS PERIPHERAL NUTRITION OR N.G. TUBE?
7 A. IF A PERSON WON'T EAT, WE WANT TO KEEP THEM ALIVE, THEN
8 WE HAVE TO FIND SOME WAY OF GIVING NUTRITION. SO WE CAN
9 EITHER MAKE A HOLE HERE IN THE ABDOMEN, YOU KNOW, AND PUT A
10 TUBE RIGHT INTO THE STOMACH; OR YOU CAN PUT A NEEDLE IN A
11 VEIN AND CATHETER IN A VEIN AND SO FORTH AND GIVE NUTRITION
12 THAT WAY. OR YOU CAN PUT A TUBE IN THE NOSE AND DOWN INTO
13 THE STOMACH AND FEED THAT WAY.
14 AND SO -- AND SO ALL OF THOSE OPTIONS WERE DISCUSSED
15 WITH THE FAMILY AND THEY THOUGHT IT WAS TOO AGGRESSIVE.
16 Q. IS IT FAIR TO SAY IN A SHORTENED WAY YOU ARE TALKING
17 ABOUT FORCED FEEDING?
18 A. WELL, YEAH. I GUESS YOU COULD SAY THAT IN A WAY BECAUSE
19 SHE WAS REFUSING TO EAT, YOU KNOW, REFUSING TO TAKE THINGS.
20 AND ALSO IF SHE -- YOU KNOW, IF SHE WAS GIVEN SOMETHING SHE
21 HAD VERY POOR ABILITY TO GET IT DOWN. YOU KNOW, MECHANICS
22 OF SWALLOWING AND SO FORTH WERE JUST VERY POOR.
23 Q. WOULD THAT INTERSTITIAL LUNG DISEASE PLAY A PART IN HER
24 INABILITY TO SWALLOW?
25 A. PROBABLY NOT.
1025
1 Q. AND THEN YOU GO ON TO SAY, AND THE FAMILY FEELS THAT
2 THIS WOULD BE AGGRESSIVE AND INAPPROPRIATE. THAT'S BASED
3 UPON YOUR DISCUSSION WITH THE FAMILY?
4 A. YES.
5 Q. AND DO YOU RECALL, WAS THE FAMILY -- WAS THAT PRIMARILY
6 MR. MERLIN LARSEN?
7 A. I DON'T REMEMBER.
8 Q. DID YOU DO ANY -- WELL, DO YOU REMEMBER IF YOU HAD
9 DISCUSSIONS WITH JUST ONE PERSON OR OTHER PEOPLE OR DO YOU
10 HAVE ANY RECOLLECTION?
11 A. I DON'T REALLY REMEMBER. I DON'T REMEMBER. IT SEEMED
12 LIKE THERE WAS A WOMAN THAT I WAS TALKING TO. THAT WAS A
13 LONG TIME AGO AND I DIDN'T WRITE DOWN OR I DIDN'T RECORD WHO
14 THE PEOPLE WERE. SO I DON'T RECALL EXACTLY TO WHOM I WAS
15 SPEAKING.
16 Q. AND THEN YOU GO ON TO SAY, THEY ALSO WANTED NO TREATMENT
17 OF INFECTION SUCH AS URINARY INFECTIONS, PULMONARY,
18 ET CETERA.
19 FIRST OF ALL, WHEN YOU ARE REFERRING TO NO TREATMENT,
20 ARE YOU TALKING ABOUT INTERVENTION OF SOME ANTIBIOTIC
21 THERAPY OR REGIMEN?
22 A. YES.
23 Q. AND URINARY INFECTION. CERTAINLY IF THEY ARE UNTREATED
24 IN SOMEBODY WHO IS 93 YEARS OLD, THAT COULD BE -- CAN BE A
25 FATAL EVENT; IS THAT RIGHT?
1026
1 A. THAT'S CORRECT.
2 Q. AND PULMONARY REFERS TO THE LUNGS, ESSENTIALLY?
3 A. YES.
4 Q. SO WE'RE TALKING ABOUT SOME KIND OF PNEUMONIA OR
5 COMPLICATIONS SIMILAR TO THAT?
6 A. YES.
7 Q. AND IT'S TRUE, IS IT NOT, IF NO ANTIBIOTICS ARE
8 PRESCRIBED OR OTHER WAYS THAT DISEASE PROCESS IS TREATED,
9 THAT CAN BE A FATAL EVENT AS WELL?
10 A. ABSOLUTELY.
11 Q. AND THEN YOU GO ON TO STATE, DISPOSITION, SHE WILL BE
12 TRANSFERRED TO A NURSING HOME FOR TERMINAL CARE. COULD YOU
13 TELL US, PLEASE, WHAT YOU MEAN BY TERMINAL CARE?
14 A. YEAH. YOU KNOW, AS I MENTIONED EARLIER, IF A PERSON
15 DOESN'T EAT OR DRINK WITHIN -- SOMEWHERE BETWEEN ONE AND TWO
16 WEEKS THEY DIE. YOU KNOW, SO THAT'S TERMINAL. AND IF SHE
17 DEVELOPED -- IF THAT SITUATION CHANGED AND SHE DEVELOPED
18 ALMOST ANYTHING, A DECISION WAS MADE THAT WE PROBABLY
19 WOULDN'T TREAT IT. IF SHE GOT PNEUMONIA WE PROBABLY
20 WOULDN'T TREAT IT WITH ANTIBIOTICS. OTHER INFECTIONS, SO
21 FORTH.
22 YOU KNOW, SO THAT -- YOU KNOW, IT'S VERY HARD ON
23 FAMILIES TO KNOW WHEN TO STOP. NEED A LOT OF SUPPORT, A LOT
24 OF PHYSICIAN SUPPORT. IT'S VERY HARD TO MAKE A DECISION ON
25 YOUR MOTHER, FOR INSTANCE, YOU KNOW, WHETHER TO STOP FLUIDS
1027
1 AND LET THE PERSON PASS AWAY OR NOT TO GIVE ANTIBIOTICS FOR
2 PNEUMONIA. IT'S A VERY DIFFICULT DECISION FOR FAMILY AND
3 YOU CAN'T BE OBJECTIVE AND SO FORTH. THEY NEED A LOT OF
4 SUPPORT AND HELP. SO WE TRY TO WALK THEM THROUGH THIS
5 SCENARIO AHEAD OF TIME SO THEY THINK ABOUT, WELL, WHAT IF
6 THIS COMES UP, WHAT WOULD YOU LIKE US TO DO.
7 IT'S LIKE WHEN SOMEBODY GOES IN THE HOSPITAL, WOULD YOU
8 LIKE RESUSCITATION IF THEIR HEART SUDDENLY STOPPED? THAT'S
9 SOMETHING WE ARE REQUIRED TO ASK FAMILY MEMBERS WHEN
10 SOMEBODY LIKE THAT COMES INTO THE HOSPITAL. WOULD THAT BE
11 SOMETHING THEY WOULD WANT FOR HER OR WOULD THAT BE A WAY FOR
12 HER TO LEAVE THIS LIFE COMFORTABLY AND WITH DIGNITY AND SO
13 FORTH.
14 SO THAT'S WHAT THAT'S GETTING AT WAS THAT -- WELL,
15 LOOKING WE REALLY DON'T KNOW WHAT'S GOING TO HAPPEN WITH
16 THIS PERSON NOT EATING. BUT WHEN SHE DID EAT, SOME OF IT
17 WENT INTO THE LUNGS, SO THAT COULD BE A CAUSE OF PNEUMONIA.
18 SO WE HAD TO DISCUSS THAT AND SAY, IF THIS HAPPENS AND SHE
19 STARTS RUNNING A TEMPERATURE AND COUGHING AND SO FORTH, DO
20 YOU WANT HER TO COME BACK TO THE HOSPITAL, EVEN GIVEN THAT
21 WE'RE PROBABLY NOT GOING TO TREAT IT? I THINK THEY DECIDED
22 THEY DIDN'T WANT TO TREAT IT THIS TIME AROUND. BUT SHE'D
23 REACHED A QUALITY OF LIFE LEVEL THAT THEY DIDN'T THINK IT
24 WOULD BE HUMANE TO KEEP HER GOING.
25 Q. FAIR TO SAY THAT IF THERE WAS SOME OTHER DISEASE
1028
1 PROCESS, THE FAMILY ESSENTIALLY JUST WANTED TO LET HER GO?
2 A. YES.
3 Q. OKAY. THANK YOU, DOCTOR.
4 THE COURT: ANYTHING FURTHER?
5 REDIRECT EXAMINATION
6 BY MR. WILSON:
7 Q. JUST A COUPLE OF QUESTIONS, DOCTOR. DO YOU HAVE A
8 DISTINCT RECOLLECTION OF THIS CONVERSATION WITH THE FAMILY?
9 A. NO. NO, JUST WHAT I HAVE RECORDED HERE.
10 Q. DO YOU HAVE ANY IMPRESSION AS TO HOW LONG YOU SPOKE WITH
11 THE FAMILY ON THAT PARTICULAR OCCASION?
12 A. I DON'T.
13 Q. OKAY. THANK YOU, DOCTOR.
14 THE COURT: MAY THIS WITNESS BE EXCUSED?
15 MR. STIRBA: YES.
16 THE COURT: OKAY. THANK YOU.
17 OKAY. LADIES AND GENTLEMEN, WE HAVE -- YOU HAVE NO
18 OTHER WITNESSES FOR TODAY?
19 MR. WILSON: THAT'S CORRECT.
20 THE COURT: WHAT WE'RE GOING TO DO, WE'RE GOING TO
21 END A LITTLE EARLY TODAY. AS WE MENTIONED, IT DEPENDS ON
22 HOW LONG WITNESSES GO ON SOME DAYS. BUT WE'LL BEGIN AGAIN
23 TOMORROW AT 8:30.
24 I THINK JUST FOR YOUR INFORMATION, I THINK WE'RE ON
25 SCHEDULE, MAYBE EVEN A LITTLE AHEAD OF SCHEDULE. SO AS THE
1029
1 TRIAL GOES ON HOPEFULLY BY THE END OF THIS WEEK YOU'LL BE
2 ABLE TO KNOW MORE FULLY WHERE WE ARE AT IN TERMS OF THE
3 AMOUNT OF WITNESSES THAT WE HAVE COVERED AT THAT POINT.
4 WHILE YOU TAKE YOUR RECESS FOR THE EVENING, IT'S YOUR
5 DUTY NOT TO CONVERSE AMONG YOURSELVES OR CONVERSE WITH OR
6 ALLOW YOURSELVES TO BE ADDRESSED BY ANY OTHER PERSON ON THE
7 SUBJECT OF THIS TRIAL. THAT IT'S ALSO YOUR DUTY TO NOT FORM
8 OR EXPRESS AN OPINION THEREON UNTIL THIS CASE IS FINALLY
9 SUBMITTED TO YOU. AND AGAIN, DO NOT LISTEN TO ANY RADIO,
10 TELEVISION REPORTS ABOUT THIS TRIAL, ANY NEWSPAPERS OR ANY
11 COMPUTER OR MAGAZINES OR ANYTHING ELSE.
12 AND WE'LL SEE YOU AT 8:30 TOMORROW MORNING.
13 (WHEREUPON, THE JURY IS EXCUSED.)
14 THE COURT: THE RECORD WILL REFLECT THAT THE JURY
15 HAS LEFT THE COURTROOM.
16 CAN YOU TELL US, MR. WILSON, WHAT WITNESSES YOU
17 ANTICIPATE FOR TOMORROW?
18 MR. WILSON: YES, YOUR HONOR. WE INTEND TO CALL
19 DR. DAVID DIENHART, DR. ROBERT BITNER, DR. NEAL CLINGER,
20 DR. PAUL JENSEN. AND I WOULD THINK THAT WOULD TAKE US
21 PROBABLY THROUGH THE MORNING. AND WE ANTICIPATE THAT WE
22 WILL BE PUTTING ON OUR FIRST EXPERT WITNESS, DR. CHARLES
23 FEHLAUER, IN THE AFTERNOON OF TOMORROW.
24 THE COURT: OKAY. WE'VE GOT FEHLAUER. IS HE ONE
25 OF THESE WE HAD A MOTION ON?
1030
1 MR. WILSON: HE IS.
2 THE COURT: OKAY. HAVE YOU -- ARE YOU GOING TO
3 HAVE ANY WRITTEN RESPONSE FOR THAT OR IS THAT SOMETHING --
4 MR. WILSON: I ANTICIPATE REVIEWING THAT THIS
5 AFTERNOON OR THIS EVENING AFTER CONCLUSION. SO WE WOULD TRY
6 TO HAVE THAT TO THE COURT IN THE MORNING FIRST THING.
7 THE COURT: WELL, MAYBE THAT'S SOMETHING WE CAN
8 DISCUSS AT NOON OR SOMETHING BEFORE WE DO THAT OR WE'LL FIND
9 ON THE BREAK OR SOMETHING.
10 OKAY. SO I'M LOOKING ON THE PHYSICIANS OF YOUR
11 DESIGNATED WITNESSES. AND WHERE ARE WE AT -- I SEE THAT
12 WE'VE GOT -- WE'VE HAD ONE, TWO, THREE, FOUR, FIVE, SIX,
13 SEVEN AS I COUNTED THE PHYSICIANS THAT HAVE TESTIFIED, AND
14 WITH THESE OTHER FOUR --
15 MR. WILSON: THIS WILL PRETTY MUCH CONCLUDE. THERE
16 WOULD BE SOME -- OF COURSE, SOME OTHER EXPERT WITNESSES WHO
17 ARE PHYSICIANS. BUT AS TO THE FACTUAL OPINIONS -- OR NOT
18 FACTUAL OPINIONS, BUT AS TO THE FACTUAL WITNESSES THAT ARE
19 PHYSICIANS, IT WILL PRETTY MUCH CONCLUDE THAT. I THINK
20 THERE IS STILL A DR. MEEK AND IT SEEMS LIKE THERE WAS ONE
21 OTHER PHYSICIAN.
22 THE COURT: YOU HAVE TWO DR. JENSENS. WHICH ONE
23 ARE WE DOING?
24 MR. WILSON: THERE IS DR. JENSEN THAT IS FROM THE
25 HOSPITAL, DAVIS HOSPITAL. THE OTHER ONE I DON'T THINK WE'RE
1031
1 CALLING.
2 THE COURT: AND THEN WHERE ARE WE AT ON LIKE THE
3 FAMILY MEMBERS?
4 MR. WILSON: JUST TWO FAMILY MEMBERS LEFT. OF
5 THOSE, ONE OF THOSE FAMILY MEMBERS, MR. MERLIN LARSEN, WAS
6 OUT OF THE STATE, WILL NOT BE BACK IN UNTIL MONDAY THE 19TH.
7 SO I WOULD NOT ANTICIPATE HIS TESTIMONY UNTIL THEN, YOUR
8 HONOR.
9 THE COURT: OKAY. AND THEN ANY OTHER FAMILY
10 MEMBERS WHO YOU ANTICIPATE TESTIFYING?
11 MR. WILSON: WELL, HAROLD LARSEN ALSO IS ONE OF THE
12 FAMILY MEMBERS. THAT'S THE JUDITH LARSEN FAMILY.
13 THE COURT: WHAT ABOUT BRADLEY ALLDREDGE, CAROLYN?
14 MR. WILSON: THOSE FAMILY MEMBERS WE CHOSE NOT TO
15 BRING IN AND HAVE TESTIFY.
16 THE COURT: WHERE ARE WE AT IN TERMS OF LIKE OUR
17 SCHEDULE?
18 MR. WILSON: IN LOOKING AT THE SCHEDULE OF
19 WITNESSES -- AND, OF COURSE, I THINK I CAN INDICATE FOR THE
20 COURT, IT SEEMS TO ME THAT THERE'S A PROBABILITY THAT THE
21 STATE WILL FINISH ITS CASE -- THE PRESENTATION OF ITS
22 CASE-IN-CHIEF POSSIBLY BY NEXT THURSDAY AT THE LATEST. IT
23 COULD EVEN HAPPEN EARLIER, DEPENDING ON HOW LONG THE
24 EXAMINATIONS TAKE OF OUR EXPERT WITNESSES.
25 THE COURT: YOU ARE TALKING ABOUT A WEEK FROM
1032
1 TOMORROW?
2 MR. WILSON: YES.
3 THE COURT: OKAY. ALL RIGHT. WELL, IF THAT WERE
4 THE CASE, THAT'S ACTUALLY THE 22ND. ACTUALLY A WEEK FROM
5 TOMORROW WOULD BE THE 22ND.
6 MR. WILSON: THAT'S CORRECT.
7 THE COURT: OKAY. AND THEN I KNOW YOU INDICATED
8 EARLIER, MR. STIRBA, YOU MAY HAVE A WEEK AND A HALF. IS
9 THAT STILL --
10 MR. STIRBA: I TRUNCATED THAT. I THINK IT'S ABOUT
11 A WEEK.
12 THE COURT: WELL, THE ONLY REASON I ASK IS BECAUSE
13 IF WE GOT DONE IN A WEEK THEN WE HAVE -- WHETHER WE ARE
14 GOING TO GET DONE BY JULY 4TH IS THE REASON. WE TOLD THE
15 JURY THAT THE MONDAY, JULY 3RD, SO THAT THEY COULD DO
16 WHATEVER THEY ARE GOING TO DO ON JULY 4TH, WE WOULD TAKE
17 OFF. WE TOLD THEM THAT IN JURY SELECTION AND TOLD THEM THAT
18 SINCE. IF WE GOT DONE ON THE 22ND, THAT WOULD GIVE A DAY
19 AND A WEEK.
20 MR. STIRBA: I'LL LET YOU TELL THE JURY YOU WANT ME
21 TO GO A WEEK AND A HALF AS OPPOSED TO A WEEK, YOUR HONOR.
22 THE COURT: NO. I'M JUST SAYING, YOU KNOW, IF WE
23 GET THE EVIDENCE DONE AND THEN THEY ARE SITTING FOR A
24 FOUR-DAY WEEKEND, YOU KNOW, JULY 1ST, 2ND AND 3RD AND 4TH, I
25 DON'T WANT THAT IMPACTING --
1033
1 MR. STIRBA: THAT'S A LEGITIMATE POINT. I'LL TRY
2 TO BE SENSITIVE TO THAT.
3 THE COURT: I'M NOT TRYING TO RUSH PEOPLE. I'M
4 JUST SAYING THAT'S THE CONCERN IS THAT IF WE GET ALL THIS IN
5 AND THEN WE JUST WAIT FOR FOUR OR FIVE DAYS THEN THEY
6 FORGET.
7 MR. WILSON: I HAVE TO SAY, YOUR HONOR, THAT I'M
8 GETTING AT BIT BETTER AT GUESSTIMATING, BUT IT'S STILL A
9 GUESS.
10 THE COURT: I UNDERSTAND. I'M NOT GOING TO SAY
11 ANYTHING TO THE JURY. IF WE'RE GOING -- WE'RE GOING FAR
12 AHEAD OF WHAT WE ANTICIPATED AND I THINK YOU SAID YOU WERE
13 GOING TO GO TILL THE END OF JUNE. AND SO THAT WAS -- THAT'S
14 NOT A PROBLEM. WE'RE NOT GOING TO TELL THEM ANYTHING MORE.
15 WE'LL JUST GO ON TILL WE'RE DONE.
16 I HAD A QUESTION ABOUT AS I LOOKED THROUGH THIS CHART
17 WHERE IT SAYS WHAT EXHIBITS HAVE BEEN RECEIVED, OKAY, I HAD
18 THAT EXHIBIT 2 WAS RECEIVED. EVERYBODY HAVE THAT?
19 MR. STIRBA: THAT IS THE --
20 THE COURT: IT SAYS POLICIES AND PROCEDURES. IT'S
21 NOT THE --
22 MR. STIRBA: YES, YOUR HONOR. THAT HAS BEEN
23 OFFERED AND RECEIVED.
24 THE COURT: THEN WE HAD I THINK EXHIBIT 6 WHICH
25 WAS -- IS THAT THE PHOTOGRAPH OF ELLEN ANDERSON?
1034
1 MR. WILSON: THERE WAS 3, 4, 5, 6 AND 7 WERE THE
2 MEDICAL RECORDS EXHIBITS.
3 THE COURT: NOW, ARE THERE ANY PROBLEMS WITH THOSE?
4 MR. STIRBA: NO. WE'VE REVIEWED THEM. THEY ARE
5 FINE.
6 THE COURT: OKAY THEN. DO YOU WANT TO MARK THOSE
7 AND GET THAT BACK TO ME? I'M TRYING TO CATCH THIS UP.
8 MR. WILSON: WE HAVE. I THINK FOLLOWING THAT WE
9 WERE PUTTING IN THE PHOTOGRAPHS.
10 THE COURT: LET'S JUST GET WHAT'S RECEIVED RIGHT
11 NOW. SO WHAT WE HAVE RIGHT NOW, WE HAVE EXHIBITS 2, 3, 4,
12 5, 6 AND 7 WHICH ARE POLICIES AND PROCEDURES, AND THEN THE
13 DAVIS MEDICAL RECORDS FOR EACH OF THE FIVE PATIENTS. THEN
14 WE HAVE THE MARY CRANE PHOTOGRAPH IS 8. THE ELLEN ANDERSON
15 PHOTOGRAPH WAS 10.
16 MR. WILSON: I THINK LYDIA SMITH WAS 9, AND I DON'T
17 HAVE THAT AS BEING RECEIVED.
18 MR. STIRBA: THAT'S TRUE. I DON'T THINK IT WAS
19 OFFERED. AND I DON'T THINK -- AND THE ONLY ELLEN ANDERSON
20 WE HAD -- I DON'T THINK THAT WAS OFFERED.
21 THE COURT: PARDON?
22 MR. STIRBA: THAT WAS OFFERED AND I DIDN'T HAVE AN
23 OBJECTION. IT'S BEEN RECEIVED, THE ELLEN ANDERSON ONE.
24 MR. WILSON: I THINK THE LYDIA SMITH ONE WE
25 POSSIBLY NEGLECTED TO OFFER.
1035
1 MR. STIRBA: THAT'S TRUE. AND I WOULD OBJECT ON
2 THE SAME BASIS AS I OBJECTED -- IF IT'S NOW BEING OFFERED --
3 AS TO MR. ALLDREDGE'S PHOTOGRAPH.
4 MR. WILSON: I THINK THERE WAS A PROFFER OR THERE
5 WAS TESTIMONY ON LYDIA SMITH, YOUR HONOR -- IF THE COURT
6 WANTED TO GO BACK -- THAT -- TO THE EFFECT THAT THAT
7 PHOTOGRAPH WAS TAKEN APPROXIMATELY FIVE YEARS BEFORE HER
8 DEATH, AS I RECALL THE STATEMENT FROM THE WITNESS ON THE
9 STAND.
10 I CAN'T RESPOND ON ENNIS ALLDREDGE AT THIS TIME. I
11 THINK WE CAN MAKE A PROFFER TO THE COURT AS TO WHEN THAT WAS
12 TAKEN. IF COUNSEL WANTS US TO BRING VONDA ALLDREDGE BACK
13 AND TESTIFY TO THAT PHOTOGRAPH, I GUESS WE CAN DO THAT TO
14 PERFECT THE RECORD.
15 THE COURT: WELL, I GUESS ONE OF THE THINGS IS THAT
16 THESE PHOTOGRAPHS WERE USED IN THE OPENING STATEMENT.
17 WHETHER THEY WERE ADMITTED OR NOT THEY WERE ALL SHOWN DURING
18 THE TESTIMONY. DO YOU WANT THEM TO COME BACK AND SAY -- I
19 MEAN --
20 MR. STIRBA: NO. I'M SAYING WITH RESPECT -- FOR
21 EXAMPLE, MISS SMITH'S PHOTOGRAPH. TESTIMONY WAS -- I AGREE
22 WITH MR. WILSON, IT WAS TAKEN FIVE YEARS BEFORE THE EVENT
23 SO, THEREFORE, I DON'T THINK FOUNDATIONALLY IT'S RELEVANT.
24 AND I DON'T THINK THE TESTIMONY WAS TO THE EFFECT THAT THE
25 APPEARANCE IN THE PHOTOGRAPH ACCURATELY AND TRULY REFLECTS
1036
1 THE APPEARANCE OF MISS SMITH AT THE TIME OF HER ADMISSION TO
2 THE DAVIS HOSPITAL. AND SIMILARLY WITH RESPECT TO
3 MR. ALLDREDGE. THERE WASN'T ANY TESTIMONY. I'D CERTAINLY
4 HAVE NO PROBLEM WITH THE PROFFER AS TO WHEN THE PHOTOGRAPH
5 WAS TAKEN. AND THEN PERHAPS THERE'S AN OBJECTION, PERHAPS
6 THERE ISN'T.
7 THE COURT: WE'LL DEAL WITH THAT.
8 MR. MAJOR: YOUR HONOR, IF I MIGHT INTERRUPT. IF
9 THAT'S THE CASE WE NEED TO KNOW QUICKLY. VONDA IS PLANNING
10 TO RETURN TO OREGON WITHIN THE NEXT DAY.
11 MR. STIRBA: I HAVE NO PROBLEM WITH THE PROFFER.
12 THE COURT: I THINK WHAT HE'S SAYING, THERE WASN'T
13 ANY QUESTION AS TO WHEN WAS THE PICTURE TAKEN. I THINK
14 THAT'S -- CALL HER TONIGHT AND FIND OUT.
15 MR. WILSON: I DON'T THINK HE'S SAYING HE WON'T
16 OBJECT. I THINK --
17 THE COURT: I THINK HE'S SAYING IF IT'S ANOTHER
18 FIVE YEARS OUT, HE MAY HAVE AN OBJECTION.
19 ON THE DEFENDANT'S EXHIBITS, I HAVE RECEIVED EXHIBIT
20 D-1, WHICH WAS THE CONTRACT WITH DAVIS HOSPITAL AND HORIZON,
21 I GUESS.
22 MR. STIRBA: YES, YOUR HONOR. THAT WAS OFFERED AND
23 RECEIVED.
24 THE COURT: EXHIBIT 2. THAT WAS DR. STUBBS. IS
25 THERE ANY OBJECTION TO THAT? THAT WAS THE ONE WHERE SHE
1037
1 SAID WE -- THESE 15 EXTRA PAGES, THEY WERE ATTACHED.
2 MR. WILSON: NO OBJECTION.
3 THE COURT: EXHIBIT 2 IS RECEIVED. DEFENDANT'S
4 EXHIBIT 2. OKAY.
5 THEN WE HAVE -- WE HAD DR. SUMKO. IS THAT EXHIBIT 3?
6 MR. STIRBA: YES, YOUR HONOR.
7 THE COURT: THERE ANY OBJECTION TO DR. SUMKO'S
8 FILE, WHICH WAS EXHIBIT 3?
9 MR. STIRBA: THAT WAS ONE -- YOU RECALL HE WAS ON
10 THE STAND, WE WENT OUT AND MADE A COPY.
11 MR. WILSON: I DON'T KNOW AS WE HAVE -- WE HAVE NO
12 OBJECTION TO DR. SUMKO'S FILE.
13 THE COURT: SUMKO IS THE ONE THAT HAD TO BE COPIED
14 WHILE HE WAS HERE.
15 MR. MAJOR: I HAVE NO OBJECTION.
16 THE COURT: THREE WILL BE RECEIVED, DEFENDANT'S 3.
17 THE NEXT ONE I HAVE, EXHIBIT 6, WHICH IS
18 DR. CUNNINGHAM'S MEDICAL RECORDS. OKAY. AND THAT WAS
19 ANOTHER ONE THAT WAS JUST COPIED WHILE HE WAS HERE.
20 MR. STIRBA: YES. ACTUALLY HE LOOKED AT THE
21 EXHIBIT AND SAYS THAT WAS OKAY.
22 MR. WILSON: NO OBJECTION.
23 THE COURT: THEN THAT D-6, DR. CUNNINGHAM. THAT'S
24 BEEN IDENTIFIED AND OFFERED AND RECEIVED.
25 NOW, YOU MARKED DEFENDANT'S EXHIBIT 8, ADMISSION OF
1038
1 ELLEN ANDERSON, OR DID WE?
2 MR. MAY: THAT WAS THIS MORNING, YOUR HONOR.
3 MR. STIRBA: THAT IS ACTUALLY PLAINTIFF'S
4 EXHIBIT --
5 MR. MAY: NO. THAT'S OURS. THAT'S OUR D-8 AND
6 THAT'S FOR ADMISSION TO PIONEER CARE CENTER ON 6/24/95.
7 MR. WILSON: UNDER THE CIRCUMSTANCES -- YOUR HONOR,
8 WE HAVE REVIEWED THE DOCUMENTS. WE HAVE NOT MADE AN
9 EXTENSIVE REVIEW, BUT UNDER THE CIRCUMSTANCES I THINK WHAT
10 WE WOULD DO AT THIS TIME IS ALL EXHIBITS PROFFERED BY THE
11 DEFENDANT AT THIS POINT CONCERNING MEDICAL RECORDS OR
12 PREHISTORY MEDICAL RECORDS WE WOULD NOT HAVE ANY OBJECTION
13 TO THEIR ADMISSION.
14 THE COURT: DOES THAT INCLUDE DEFENDANT'S EXHIBITS
15 THAT WE WERE JUST TALKING ABOUT?
16 MR. WILSON: I DON'T KNOW. WAS DEFENDANT'S EXHIBIT
17 8(A) MEDICAL RECORDS?
18 MR. STIRBA: YES. IT'S FROM THE PIONEER CARE
19 CENTER.
20 MR. WILSON: THAT WOULD INCLUDE THAT.
21 THE COURT: WELL THEN -- AND LET'S -- WE'VE GOT --
22 OKAY. THAT'S DEFENDANT'S EXHIBIT 8. THAT WILL BE RECEIVED.
23 OKAY. THEN THE OTHER -- OKAY. THEN THE OTHER ONES I'M
24 GOING TO GO THROUGH. I'VE GOT DEFENDANT'S EXHIBIT 9 AND
25 THAT, I THINK, IS DR. WILDING.
1039
1 MR. STIRBA: YES, YOUR HONOR.
2 THE COURT: THAT'S -- THEN THE NEXT ONE IS
3 DECEMBER -- OR DEFENDANT'S EXHIBIT 20, WHICH IS THE MEDICAL
4 RECORDS FOR LAKEVIEW HOSPITAL ON LYDIA SMITH. SO THAT WILL
5 BE RECEIVED.
6 AND WE HAVE DEFENDANT'S EXHIBITS 20.1, 20.2, 20.3,
7 20.4, 20.5, 20.6, 20.7, 20.8, 20.9., AND THOSE ALL ARE ALSO
8 LYDIA SMITH.
9 MR. STIRBA: YES.
10 THE COURT: THEY ARE RECEIVED. THEN EXHIBIT D-22
11 IS ALSO MEDICAL RECORDS FOR LYDIA SMITH.
12 MR. STIRBA: DR. SOUTHWORTH.
13 THE COURT: AND THAT'S RECEIVED.
14 ARE THERE ANY OTHERS?
15 MR. MAY: WE OFFERED THIS MORNING D-10.
16 THE COURT: DEFENDANT'S 10 WAS THE ADMISSION OF
17 MARY CRANE TO ALTA VIEW.
18 MR. MAY: CORRECT, YOUR HONOR.
19 THE COURT: ANY OBJECTION TO THAT?
20 MR. WILSON: NO.
21 THE COURT: OKAY. ANY OTHER EXHIBITS?
22 MR. MAY: D-11, YOUR HONOR.
23 THE COURT: WHAT WAS THAT?
24 MR. MAY: IT WAS ST. MARKS MEDICAL RECORDS FROM
25 11/22/90 THROUGH 11/29/90.
1040
1 THE COURT: IS THERE ANY OBJECTION TO THAT? WHICH
2 PATIENT?
3 MR. MAY: EXCUSE ME. MARY CRANE, YOUR HONOR.
4 MR. WILSON: NO OBJECTION.
5 THE COURT: OKAY. THAT'S RECEIVED.
6 MR. MAY: FINAL ONE WE HAVE, YOUR HONOR, IS D-13.
7 THE COURT: IS THAT DEFENDANT'S EXHIBIT 13?
8 MR. MAY: THE WESTERN REHABILITATION DOCUMENT ON
9 MARY CRANE.
10 MR. WILSON: NO OBJECTION, YOUR HONOR.
11 THE COURT: OKAY. THAT'S RECEIVED.
12 MR. MAY: WE DO HAVE THE THREE THAT WERE OFFERED
13 TODAY.
14 THE COURT: THAT'S ALL THE EXHIBITS FROM BOTH SIDES
15 BESIDES THE TWO PHOTOGRAPHS THAT WE'RE WAITING ON, LYDIA
16 SMITH AND ENNIS ALLDREDGE.
17 MR. MAJOR: AS TO EXHIBIT NUMBER 12, IF IT HELPS,
18 WE DO HAVE THE DAUGHTER. SHE HAS BEEN IN THE COURTROOM
19 TODAY. SHE INDICATES IT WAS TAKEN IN THE FALL OF 1991 AND I
20 BELIEVE SHE WOULD INDICATE IT WAS A GOOD LIKENESS OF HIM
21 PRIOR TO HIS DEATH.
22 MR. STIRBA: THAT'S FINE.
23 MR. MAJOR: THAT WOULD BE ACCEPTABLE.
24 MR. STIRBA: SAME OBJECTION AS TO FOUNDATION AND
25 RELEVANCY, BUT I APPRECIATE THE PROFFER.
1041