Welby Jensen, MD
17 WELBY NEAL JENSEN,
18 BEING FIRST DULY SWORN, WAS EXAMINED AND TESTIFIED
19 AS FOLLOWS:
20 DIRECT EXAMINATION
21 BY MR. WILSON:
22 Q. DR. JENSEN, WOULD YOU STATE YOUR FULL NAME FOR THE
23 RECORD, PLEASE?
24 A. WELBY NEAL JENSEN, M.D.
25 Q. AND WHERE DO YOU CURRENTLY RESIDE, SIR?
272
1 A. KODIAK, ALASKA.
2 Q. OKAY. I NOTE THAT THERE'S SOME WATER AT THE BENCH THERE
3 IF THAT WILL HELP YOUR -- YOUR VOICE. YOU'VE BEEN SUFFERING
4 FROM A RESPIRATORY MATTER, I UNDERSTAND?
5 A. RIGHT.
6 Q. YOU'RE IN KODIAK, ALASKA? HOW LONG HAVE YOU BEEN UP IN
7 ALASKA?
8 A. SINCE FEBRUARY OF '97.
9 Q. OKAY. PRIOR TO THAT TIME, SIR, DID YOU -- WELL, LET --
10 LET ME ASK YOU THIS. COULD YOU GIVE US A BRIEF EXPLANATION
11 CONCERNING YOUR EDUCATIONAL BACKGROUND?
12 A. I WENT THROUGH A JUNIOR COLLEGE, SNOW COLLEGE, AND THEN
13 HAD A TWO-YEAR HIATUS. AND THEN I ATTENDED THE UNIVERSITY
14 OF UTAH AND RECEIVED A BACHELOR'S DEGREE. AND THEN I WENT
15 TO THE UNIVERSITY OF UTAH MEDICAL SCHOOL AND GRADUATED FROM
16 THERE IN '87. AND THEN APPLIED TO RESIDENCIES AND WENT
17 THROUGH THE UNIVERSITY OF UTAH PSYCHIATRIC RESIDENCY
18 PROGRAM.
19 Q. HOW LONG IS THAT PROGRAM?
20 A. FOUR YEARS.
21 Q. OKAY. AND YOU GRADUATED FROM WHERE YOU -- YOU WERE --
22 YOU SUCCESSFULLY COMPLETED YOUR RESIDENCY PROGRAM, I TAKE
23 IT?
24 A. YEAH, IN '91.
25 Q. IN 1991?
273
1 A. (NODS HEAD UP AND DOWN.)
2 Q. AND FROM THAT PROGRAM, WHERE DID YOU BECOME EMPLOYED?
3 A. I BECAME EMPLOYED WITH F.H.P. UTAH.
4 Q. OKAY. NOW, DO YOU HOLD ANY BOARD CERTIFICATIONS AS A
5 PSYCHIATRIST?
6 A. YES, I'M A BOARD CERTIFIED PSYCHIATRIST.
7 Q. OKAY. DO YOU HOLD ANY CERTIFICATIONS OR BOARD
8 CERTIFICATIONS IN ANY OTHER SPECIALITIES?
9 A. NO.
10 Q. OKAY. WHAT DOES THAT MEAN, BOARD CERTIFICATION, DOCTOR?
11 A. THAT MEANS THAT I BASICALLY PASSED A EXTENSIVE WRITTEN
12 AND ORAL EXAMINATION, TWO SEPARATE EXAMINATIONS, AFTER I
13 COMPLETED AN ACCREDITED RESIDENCY PROGRAM.
14 Q. OKAY. AND IN RESPECT TO THAT BOARD CERTIFICATION, WHEN
15 DID YOU RECEIVE THAT?
16 A. I CAN'T REMEMBER -- A COUPLE OF YEARS LATER, I THINK
17 LIKE '93.
18 Q. OKAY. NOW, YOU INDICATED THAT YOU WERE EMPLOYED BY
19 F.H.P. SUBSEQUENT TO THAT? YOU GETTING OUT OF MEDICAL
20 SCHOOL?
21 A. I WAS EMPLOYED BY F.H.P. AFTER COMPLETING MY RESIDENCY.
22 Q. COMPLETING YOUR RESIDENCY. AND F.H.P. IS A -- CAN YOU
23 DESCRIBE WHAT KIND OF AN ORGANIZATION THAT IS?
24 A. IT WAS A HEALTH MAINTENANCE ORGANIZATION.
25 Q. WERE YOU HOUSED IN A PARTICULAR AREA?
274
1 A. YES, I PRACTICED IN OGDEN.
2 Q. OKAY. AND DID THERE COME A TIME THAT YOU BECAME
3 ASSOCIATED OR HIRED BY ANY OTHER ORGANIZATIONS?
4 A. YES. I SAW A ADVERTISEMENT IN THE PAPER ONCE LOOKING
5 FOR A PHYSICIAN TO DO GERIATRIC PSYCHIATRY OR SO FORTH AT --
6 DIDN'T KNOW MUCH ABOUT IT AND IT HAPPENED TO BE AT THE DAVIS
7 MEDICAL CENTER.
8 Q. DO YOU RECALL APPROXIMATELY WHEN THAT OCCURRED?
9 A. I THINK IT WAS ABOUT '94, I THINK.
10 Q. SO DID YOU PURSUE THAT PARTICULAR ADVERTISEMENT?
11 A. YES.
12 Q. YOU MADE APPLICATION?
13 A. YES.
14 Q. WHO WAS IT THAT YOU MADE APPLICATION WITH?
15 A. HORIZON.
16 Q. OKAY.
17 A. MENTAL HEALTH SERVICES.
18 Q. OKAY. WHAT KIND OF ORGANIZATION ARE THEY?
19 A. THEY'RE A MEDICAL ORGANIZATION AND THEY HELP DO
20 MANAGEMENT OF -- OF MENTAL HEALTH SERVICES, INPATIENT AND
21 LIKE DAY TREATMENT PROGRAMS, I THINK, MAINLY FOR MENTAL
22 HEALTH -- THEY MAY DO OTHER THINGS, TOO.
23 Q. WAS THERE ANY PARTICULAR POSITION THAT YOU APPLIED FOR?
24 A. AT THAT TIME THEY HAD POSITIONS FOR A DIRECTOR AND I
25 GUESS AN ASSISTANT --
275
1 Q. OKAY.
2 A. -- DIRECTOR.
3 Q. WERE YOU SUBSEQUENTLY EMPLOYED BY THEM, SIR?
4 A. I WAS SET AS THE -- AS THE MEDICAL DIRECTOR. I WAS AN
5 INDEPENDENT CONTRACTOR.
6 Q. OKAY.
7 A. FOR THEM.
8 Q. WHAT DO YOU MEAN BY THAT? WHAT --
9 A. WELL, I WASN'T --
10 Q. CAN YOU DEFINE FOR US WHAT YOUR DUTIES AND
11 RESPONSIBILITIES ARE?
12 A. I HAD A ROLE AS -- AS A DIRECTOR TO -- AS FAR AS --
13 CHIEFLY TO -- TO DO SOME OF THE CLINICAL WORK OR -- ON THAT
14 UNIT AND TO WORK WITH THE OTHER HORIZON STAFF AND PROVIDERS,
15 AND WHETHER THAT BE POLICIES ON THE UNIT, THE MENTAL HEALTH
16 UNIT, OR MARKETING OR DOING SOME RESEARCH FOR THEM OR GIVING
17 PRESENTATIONS OR WHATEVER.
18 Q. OKAY. SO YOU HAD SOME ADMINISTRATIVE FUNCTIONS?
19 A. YES. I WAS PAID UP TO I THINK ABOUT 20 HOURS A MONTH OR
20 SOMETHING, IF I DID THAT, IN ADMINISTRATIVE HOURS.
21 Q. OKAY.
22 A. THAT WAS THE ONLY REIMBURSEMENT I HAD FROM THEM.
23 Q. OKAY. SO WHAT WAS YOUR TITLE? DIRECTOR?
24 A. YES.
25 Q. OKAY.
276
1 A. I THINK MEDICAL DIRECTOR.
2 Q. OKAY. NOW, WERE YOU HIRED ON A PART-TIME BASIS OR A
3 FULL TIME BASIS?
4 A. WELL, IT WASN'T REALLY A FULL TIME POSITION.
5 Q. MAYBE I SHOULD -- MAYBE I MISCHARACTERIZED IT. DID YOU
6 CONTRACT WITH THEM TO PROVIDE CERTAIN SERVICES?
7 A. YEAH, YOU COULD SAY THAT.
8 Q. OKAY.
9 A. UH-HUH.
10 Q. NOW -- AND YOU PREVIOUSLY TESTIFIED PART OF THOSE
11 SERVICES INCLUDED SOME ADMINISTRATIVE SERVICES; IS THAT
12 CORRECT?
13 A. YES.
14 Q. NOW, WAS THIS -- THIS AT THE VERY INCEPTION OF THIS
15 PARTICULAR UNIT?
16 A. YES.
17 Q. OKAY. WHAT WAS IT ABOUT THIS PARTICULAR UNIT THAT WAS
18 ATTRACTIVE TO YOU THAT YOU WANTED TO PURSUE THAT PARTICULAR
19 CONTRACT?
20 A. I THOUGHT I'D HAD SOME EXPERIENCE -- I GUESS IN THE PAST
21 I WAS LIKE THE SENIOR RESIDENT WHICH WAS LIKE THE CHIEF
22 CLINICAL RESIDENT OF THE V.A., SALT LAKE V.A., AND -- AND I
23 WORKED WITH A LOT OF ELDERLY PATIENTS AND SO I KIND OF LIKED
24 WORKING WITH THAT POPULATION. AS A GENERAL PSYCHIATRIST, I
25 WORKED WITH ALL AGES, BUT I -- I HAD AN INTEREST BECAUSE IT
277
1 WAS LOCAL. I LIVED IN BOUNTIFUL AND THEN I LIVED IN THE
2 LAYTON AREA AND SO IT WAS CLOSE BY. AND I THOUGHT THE UNIT,
3 AS I LEARNED ABOUT IT, HAD SOME -- SOME STRONG POINTS THAT
4 WEREN'T PROVIDED IN OTHER AREAS IN -- IN THE STATE.
5 Q. AND WHAT WOULD THOSE BE?
6 A. IT WAS A UNIT THAT LOOKED AT SOME OF -- IT COULD TAKE
7 CARE OF THE PSYCHIATRIC NEEDS OF THE ELDERLY, BUT IT ALSO
8 COULD TAKE CARE OF -- OF BASIC MEDICAL NEEDS KIND OF AT THE
9 SAME TIME. WE HAD AN INTERNIST AND INTERNAL MEDICINE
10 PHYSICIANS AND FAMILY PRACTICE DOCTORS THAT WOULD WORK ALONG
11 THE PSYCHIATRIST TAKING CARE OF SOME OF THE MEDICAL NEEDS OF
12 PATIENTS WHILE I TOOK CARE OF MORE OF THE PSYCHIATRIC NEEDS.
13 Q. THE OTHER UNITS THAT YOU'D PREVIOUSLY BEEN EMPLOYED IN,
14 WERE THEY HOUSED IN A HOSPITAL SETTING?
15 A. SOME OF THEM WERE HOUSED LIKE SEPARATE SO THEY WERE LIKE
16 FREESTANDING PSYCHIATRIC FACILITIES.
17 Q. OKAY.
18 A. AND SOME OF THEM -- LIKE AT THE V.A. WERE KIND OF
19 SEPARATED FROM THE MAIN -- MAIN PART OF THE HOSPITAL, LIKE
20 THEY WERE A LITTLE BIT -- I DON'T KNOW, NOT ISOLATED, BUT
21 THERE WAS A DISTINCT PORTION WHEREAS THIS UNIT WAS RIGHT
22 NEXT TO AN EXTENDED CARE FACILITY AND AN I.C.U. AND MEDICAL
23 UNIT, YOU KNOW, DOWNSTAIRS RIGHT NEXT TO IT.
24 Q. SO LET -- LET -- ONCE -- ONCE YOU CONTRACTED WITH
25 THEM -- AND BEFORE WE PURSUE ANY FURTHER, YOU INDICATED
278
1 THESE ADMINISTRATIVE HOURS OR THESE FUNCTIONS, WOULD YOU BE
2 PAID FOR THEM ON AN HOURLY RATE OR WHAT?
3 A. ON AN HOURLY RATE.
4 Q. OKAY. AND HOW WOULD YOU GENERATE OTHER INCOME?
5 A. BY PROVIDING CLINICAL SERVICES TO PATIENTS IN THE
6 HOSPITAL.
7 Q. OKAY. AND WOULD THE HOSPITAL BILL FOR THOSE SERVICES?
8 A. NO, I -- I WOULD BILL FOR THOSE SERVICES.
9 Q. OKAY.
10 A. I WOULD COMPLETE BILLINGS AND KEEP TRACK OF WHAT I WAS
11 DOING ON EACH PATIENT AND THEN I -- I USED A BILLING SERVICE
12 HERE LOCALLY.
13 Q. OKAY. SO IN ADDITION TO THE ADMINISTRATIVE HOURLY RATE
14 YOU WERE PAID, YOU WOULD ALSO RECEIVE INCOME FROM BILLING
15 FOR THE SERVICES OF THESE -- TO THESE PATIENTS, CLINICAL
16 SERVICES; IS THAT RIGHT?
17 A. YES.
18 Q. OKAY. CAN YOU DESCRIBE FOR US, IF YOU WILL, THE ACTUAL
19 PHYSICAL LAYOUT OF THIS PARTICULAR UNIT? WHERE WAS IT
20 LOCATED, FIRST, IN THE HOSPITAL? DO YOU REMEMBER?
21 A. I WAS TRYING TO REMEMBER WHICH FLOOR EXACTLY. I SHOULD
22 KNOW THAT. I THINK IT WAS THE SECOND FLOOR.
23 Q. OKAY. AND HOW MANY BEDS WERE IN THE UNIT?
24 A. TEN BEDS.
25 Q. OKAY. AND WAS THERE AN INPATIENT AND AN OUTPATIENT
279
1 SERVICES PROVIDED IN THIS PARTICULAR UNIT?
2 A. IN -- INPATIENT, AS FAR AS THE TEN BEDS.
3 Q. OKAY. WAS THERE ANY OUTPATIENT FUNCTION, TO YOUR
4 KNOWLEDGE?
5 A. NOT AT -- NOT AT THAT TIME, NO, WHEN I WAS THERE.
6 Q. NOT AT THE ONSET?
7 A. NO.
8 Q. OKAY. AND SO YOU ESSENTIALLY PROVIDED THE CLINICAL
9 SERVICES TO THE PATIENTS THAT WERE THEN HOUSED IN THE
10 GEROPSYCH UNIT AT THAT TIME, RIGHT?
11 A. YES.
12 Q. OKAY. WAS THERE ANY OTHER DOCTORS EMPLOYED OR ANY OTHER
13 PSYCHIATRISTS EMPLOYED AT THAT TIME IN CONNECTION WITH THE
14 UNIT?
15 A. NO, THERE WASN'T.
16 Q. WHAT ABOUT OTHER PERSONNEL THAT WERE HIRED BY HORIZONS?
17 DO YOU REMEMBER ANY OTHER PERSONNEL THAT WERE HIRED BY
18 HORIZONS?
19 A. MAINLY THERE WAS KEITH PERRY, WHO WAS KIND OF A SOCIAL
20 WORKER, ASSISTANT --
21 Q. OKAY.
22 A. -- KIND OF ADMINISTRATIVE PERSON FOR HORIZON. AND THEN
23 ORIGINALLY THERE WAS I THINK PAM -- PAM, AND I CAN'T
24 REMEMBER IF HER LAST NAME WAS CLARK OR WHAT. IT WAS PAM.
25 Q. OKAY. WAS SHE THE PROGRAM DIRECTOR?
280
1 A. YES.
2 Q. OKAY. DID -- DID SHE SUBSEQUENTLY GET REPLACED BY AN
3 INDIVIDUAL?
4 A. YES.
5 Q. AND WHO WAS THAT, SIR?
6 A. TODD CHAMBERS.
7 Q. OKAY. DID THAT HAPPEN SHORTLY AFTER YOU CAME ON BOARD?
8 A. IT WASN'T -- IT WASN'T A LONG TIME.
9 Q. OKAY.
10 A. JUST A MATTER OF MONTHS, I BELIEVE.
11 Q. SO OTHER THAN -- YOU'VE TALKED ABOUT KEITH PERRY, YOU'VE
12 TALKED ABOUT TODD CHAMBERS, AND YOU'VE TALKED ABOUT AN
13 EARLIER PROGRAM DIRECTOR. WHAT OTHER PERSONNEL WERE
14 ACTUALLY LOCATED ON THE UNIT? WHAT OTHER TYPES OF PERSONNEL
15 OR CATEGORIES OF PERSONNEL, IF YOU WILL?
16 A. MAINLY NURSING.
17 Q. OKAY. DO YOU KNOW WHETHER HORIZONS CONTRACTED FOR THE
18 NURSES OR WHETHER THE HOSPITAL PROVIDED THE NURSES?
19 A. THE HOSPITAL PROVIDED THE NURSES.
20 Q. OKAY.
21 A. HORIZON DID HAVE NURSING HELP ADMINISTRATORS COME OUT
22 AND BE INVOLVED IN THE PROGRAM AT TIMES.
23 Q. OKAY. SO WHAT WAS YOUR UNDERSTANDING AS TO HOW THIS
24 UNIT WAS SUPPOSED TO OPERATE ON A DAY-TO-DAY BASIS?
25 A. WELL, I THINK HORIZON HAD SOMEWHAT OF A -- I SHOULDN'T
281
1 SAY A TURNKEY OPERATION, BUT THEY HAD A NUMBER OF POLICIES
2 AND PROCEDURES AND THINGS BECAUSE THEY HAD THESE SEPARATE
3 GEROPSYCHIATRIC UNITS IN -- IN DIFFERENT PLACES IN THE
4 COUNTRY. AND EACH PLACE I'M SURE WOULD HAVE ITS UNIQUE
5 QUALITIES OR DISTINCT THINGS THAT YOU'D HAVE TO MAYBE MODIFY
6 A LITTLE BIT.
7 BUT PRETTY MUCH YOU'RE GOING TO HAVE A SOCIAL WORKER,
8 NURSING EVERY DAY INVOLVED WITH PATIENTS, PSYCHIATRISTS, AND
9 THEN TAKING CARE OF DAILY NEEDS OF PATIENTS, PLUS AN
10 INTERNIST OR A FAMILY DOCTOR DOING CONSULTS ON ADMISSION AND
11 THEN FOLLOW-UP WORK FOR SOME OF THE MEDICAL NEEDS AS THEY
12 FELT NECESSARY.
13 Q. OKAY.
14 A. AND THEN TREATMENT TEAM MEETINGS AND THINGS LIKE TO.
15 Q. LET ME ASK YOU, YOU -- YOU CAME IN AT THE INCEPTION OF
16 THE UNIT. WERE YOU INVOLVED IN THIS PROCESS, AS YOU CALL
17 IT, OF -- OF DEVELOPING A LOT OF THESE OPERATIONAL POLICIES
18 AND GUIDELINES AND THINGS OF THIS SORT?
19 A. YEAH, I HELPED IN SOME OF THE -- SOME OF THE POLICIES
20 AND SO FORTH.
21 Q. OKAY.
22 A. A LOT OF THE POLICIES WERE PRETTY MUCH IN PLACE. IT WAS
23 JUST PUTTING -- OR WERE THERE, IT WAS JUST PUTTING THEM IN
24 PLACE FOR THAT UNIT.
25 Q. OKAY. NOW, SIR, WAS THERE AN ADMISSIONS POLICY, TO YOUR
282
1 RECOLLECTION?
2 A. YES.
3 Q. OKAY. AND CAN YOU RECALL WHETHER OR NOT THERE WERE
4 IDENTIFIED CRITERIA AS TO WHO WOULD BE ACCEPTABLE TO THE
5 PARTICULAR -- THE GEROPSYCH UNIT AND WHO WOULD NOT BE
6 ACCEPTABLE AS A PATIENT TO THE GEROPSYCH UNIT?
7 A. YEAH. YES, THERE WOULD BE --
8 Q. WHAT KIND OF CRITERIA DO YOU RECALL THAT YOU WOULD LOOK
9 AT IN TERMS OF WHETHER OR NOT YOU WOULD ACCEPT A PARTICULAR
10 PATIENT?
11 MR. STIRBA: YOUR HONOR -- YOUR HONOR, WE DO HAVE
12 THE POLICY IN EVIDENCE, IF HE'S JUST ASKING FOR HIS
13 UNDERSTANDING, BUT I THINK THE POLICY IS THE BEST EVIDENCE
14 OF THE CRITERIA.
15 MR. WILSON: DO WE HAVE THAT EXHIBIT?
16 THE COURT: IT'S RIGHT HERE.
17 MR. WILSON: THANK YOU, YOUR HONOR.
18 THE COURT: IT'S EXHIBIT -- PLAINTIFF'S EXHIBIT 2.
19 Q. (BY MR. WILSON) I SHOW YOU A DOCUMENT WHICH HAS BEEN
20 MARKED STATE'S EXHIBIT NUMBER 2 AND ASK YOU TO TAKE A LOOK
21 AT THAT, IF YOU WOULD, DOCTOR. CAN YOU TELL US WHETHER OR
22 NOT YOU'VE EVER SEEN THAT DOCUMENT BEFORE?
23 A. YES, I'VE SEEN THAT BEFORE.
24 Q. OKAY. DOES THAT DOCUMENT -- WELL, IDENTIFY WHAT THE
25 DOCUMENT IS, IF YOU WOULD, PLEASE.
283
1 A. IT'S POLICIES AND PROCEDURES, IT SAYS SUBJECT, ADMISSION
2 CRITERIA.
3 Q. OKAY.
4 A. AND THEN IT HAS PROCEDURE ON INTAKE AND ADMISSION WITH
5 ADMISSION CRITERIA, AND THEN EXCLUSIONARY CRITERIA ON THE
6 SECOND PAGE.
7 Q. OKAY. DOCTOR, AS THE MEDICAL DIRECTOR IN THE UNIT, WHAT
8 WAS YOUR RESPONSIBILITY IN CONNECTION WITH THE ADMISSION
9 OR -- OF A PATIENT TO THE UNIT?
10 A. TYPICALLY I WOULD BE INVOLVED WITH EITHER THE PROGRAM
11 DIRECTOR LIKE -- OR TODD CHAMBERS OR KEITH PERRY, SOMETIMES
12 WITH NURSING AS WELL, DEPENDING ON WHO IS WORKING ON A
13 PARTICULAR ADMISSION OR A PARTICULAR PATIENT OR FOR -- FOR
14 POSSIBLE ADMISSION, IN REVIEWING WHAT WAS GOING ON WITH THAT
15 INDIVIDUAL AND SHOULD THEY BE IN THE HOSPITAL AND SO FORTH.
16 Q. OKAY. WHAT KIND OF -- WHAT KIND OF DOCUMENTS WOULD YOU
17 REVIEW IN CONNECTION WITH THE PATIENT THAT WAS DESIRING TO
18 BE ADMITTED TO THE UNIT?
19 A. I DIDN'T REVIEW THAT PARTICULAR DOCUMENT -- YOU KNOW,
20 DOCUMENT THAT WE JUST LOOKED AT ALL THE TIME.
21 Q. OKAY.
22 A. I HAD WORKED ON INPATIENT UNITS A GREAT DEAL OF THE TIME
23 DURING MY RESIDENCY AND I HAD BEEN A MOONLIGHTING RESIDENT
24 OVER AT ONE OF THE LOCAL PSYCHIATRIC FACILITIES AND ADMITTED
25 MAYBE EIGHT TO TEN PATIENTS A WEEK THERE.
284
1 Q. I SEE.
2 A. SO I FOLLOWED THE SAME KIND OF CRITERIA THAT'S FOLLOWED
3 BY -- FOR PSYCHIATRIC ADMISSIONS THAT WAS PRETTY TYPICAL
4 OF -- OF OTHER INSTITUTIONS, IN MY EXPERIENCE, PLUS WHAT WAS
5 UNIQUE TO THIS UNIT.
6 Q. OKAY. IF A PATIENT -- WOULD YOU -- WOULD YOU LOOK AT
7 NURSING HOME RECORDS, WOULD YOU LOOK AT SOME KIND OF
8 ASSESSMENT FORMS? WHAT WOULD YOU LOOK AT?
9 A. OCCASIONALLY THERE WOULD BE RECORDS OR IT COULD BE
10 REQUESTED TO HAVE RECORDS. A LOT OF IT WAS VERBAL EXCHANGE
11 WITH -- WITH INDIVIDUALS, AND MOST -- YOU KNOW, A LOT OF
12 ADMISSIONS WOULD SEEM TO BE FAIRLY CLEAR-CUT THAT THEY MET
13 CERTAIN CRITERIA AND NEEDED TO BE HOSPITALIZED.
14 I THINK ONE OF THE THINGS EARLY ON THAT WE LEARNED THAT
15 WE STARTED TO DO A LITTLE BETTER SCREENING ON SOME OF THE
16 MEDICAL NEEDS OF -- OF PATIENTS BECAUSE THE UNIT COULD TAKE
17 CARE OF -- THAT'S WHY I LIKED THE UNIT. IT COULD TAKE CARE
18 OF BASIC MEDICAL NEEDS, BUT IT WASN'T GEARED TO BE A
19 MEDICAL/SURGICAL UNIT. IT WAS CHIEFLY A PSYCHIATRIC UNIT
20 THAT COULD TAKE CARE OF MEDICAL NEEDS.
21 Q. BY BASIC MEDICAL NEEDS, WHAT DO YOU MEAN?
22 A. OH, TAKING CARE OF PEOPLE'S -- IF THEY HAD AN INFECTION
23 OR PNEUMONIA OR DIABETES OR CONGESTIVE HEART DISEASE OR --
24 OR OTHER MEDICAL PROBLEMS, WE COULD TAKE CARE OF THEM ON
25 THAT UNIT, CONCURRENTLY WITH TAKING CARE OF THEIR
285
1 PSYCHIATRIC PROBLEMS.
2 Q. OKAY. IN EVALUATING THESE PATIENTS, WOULD YOU ACCEPT
3 PATIENTS THAT HAD MEDICAL PROBLEMS AS WELL AS PSYCHIATRIC
4 PROBLEMS?
5 A. YES, IF THEY WERE -- COULD BE MANAGED AND THEY WERE
6 FAIRLY MILD TO MODERATE.
7 Q. OKAY.
8 A. WE WOULDN'T WANT TO TAKE ANYTHING NECESSARILY TOO
9 DIFFICULT ON THAT UNIT THAT WOULD NEED MORE CARE THAN WE
10 COULD PROVIDE ON THAT PSYCHIATRIC -- IT'S CHIEFLY A
11 PSYCHIATRIC UNIT.
12 Q. IT'S TRUE, IS IT NOT, THAT THE -- IT WAS YOUR CALL
13 WHETHER OR NOT A PATIENT WOULD BE ADMITTED TO THE UNIT?
14 A. I -- I HAD THE FINAL CALL, YES.
15 Q. YOU HAD THE FINAL CALL.
16 A. YES.
17 Q. OKAY. AND WOULD YOU MAKE THAT DECISION IN CONJUNCTION
18 WITH ANYBODY ELSE?
19 A. YES. I'D MAKE IT IN CONJUNCTION WITH THE PROGRAM
20 DIRECTOR OR KEITH PERRY AND/OR APPROPRIATE INDIVIDUALS.
21 THAT COULD BE THE PERSON'S --
22 Q. OKAY.
23 A. -- PHYSICIAN, IT COULD BE A NURSING HOME AND PROVIDERS
24 THERE, IT COULD BE OTHER FAMILY MEMBERS OF THE PATIENT.
25 Q. OKAY. DID THESE PATIENTS -- ONCE -- ONCE YOU'D MADE
286
1 THAT DECISION TO ADMIT THEM, WAS THERE A PROTOCOL THAT WAS
2 FOLLOWED IN TERMS OF FURTHER ASSESSMENT OR EVALUATION OF
3 BOTH THEIR PHYSICAL AND -- AND MENTAL STATUS UPON ADMISSION
4 TO THE HOSPITAL?
5 A. YES, THERE WAS.
6 Q. OKAY. CAN YOU TELL US A LITTLE BIT ABOUT WHAT -- WHAT
7 OCCURRED TO A PATIENT UPON ADMISSION?
8 A. OKAY. WITHIN ADMISSION, YOU KNOW, USUALLY YOU'RE
9 TALKING WITHIN 24 HOURS THERE WOULD BE A COMPLETE
10 PSYCHIATRIC EVALUATION PERFORMED BY THE ATTENDING
11 PSYCHIATRIST, AND THERE WOULD BE A -- AN EVALUATION BY A --
12 AN INTERNAL MEDICINE OR FAMILY PRACTICE PHYSICIAN ON EACH
13 PATIENT THAT CAME IN, AND AS WELL AS THE SOCIAL -- THERE
14 WOULD BE A SOCIAL WORK ASSESSMENT, TOO, WHICH WAS FAIRLY
15 EXTENSIVE. AND THAT WOULD BE DONE OVER MAYBE NOT THE FIRST
16 DAY, BUT WITHIN SEVERAL DAYS OF ADMISSION.
17 Q. NOW, WAS THERE A -- IN YOUR EXPERIENCE, WAS THERE A
18 CERTAIN CATEGORY OF PATIENT THAT YOU'VE SEEN MORE OFTEN
19 THAN -- THAN OTHERS?
20 A. THERE -- THERE WAS A -- THERE WERE -- THERE WAS A MIX OF
21 PATIENTS AND DIAGNOSES, BUT THERE WERE -- THERE WERE A
22 NUMBER OF PATIENTS THAT CAME IN BECAUSE OF SEVERE AGITATION,
23 AGGRESSION, COMPLICATIONS OF -- OF DEMENTIA.
24 Q. OKAY.
25 A. LIKE ALZHEIMER'S DISEASE.
287
1 Q. OKAY. AND -- AND WHAT WAS THE PURPOSE THEN OF THE
2 UNIT -- WHAT WAS THE PURPOSE OF THE UNIT, THE PRIMARY
3 PURPOSE? WHAT WAS IT THERE FOR?
4 A. IT WAS TO TAKE CARE OF -- OF THE PSYCHIATRIC NEEDS -- TO
5 HELP PEOPLE'S PSYCHIATRIC, EMOTIONAL MENTAL HEALTH STATUS.
6 Q. WAS IT -- WAS IT A LONG-TERM UNIT?
7 A. NO, IT WASN'T A LONG-TERM UNIT.
8 Q. SO -- SO IT WAS NOT -- WOULD THE TERM SORT OF
9 TRANSITIONAL TYPE OF UNIT BE APPROPRIATE OR SPECIALTY UNIT?
10 A. A SPECIALTY UNIT OR -- OR YEAH, TRANSITIONAL UNIT, I
11 GUESS YOU COULD USE THAT TERM.
12 Q. OKAY. SO -- SO WHAT WAS THE ANTICIPATED STAY WHEN A
13 PATIENT WAS ADMITTED TO THIS PARTICULAR UNIT?
14 A. OH, WELL, THAT WOULD VARY FROM INDIVIDUAL TO INDIVIDUAL,
15 BUT I THINK THE AVERAGE LENGTH OF STAY WAS AROUND 17 DAYS --
16 14 TO 17 DAYS.
17 Q. SO A LITTLE OVER TWO -- TWO WEEKS, TWO AND A HALF WEEKS,
18 SOMETHING IN THAT AREA?
19 A. (WITNESS NODS HEAD UP AND DOWN.)
20 Q. AND DURING THIS TIME PERIOD THAT THEY'RE ON THE UNIT,
21 WHAT WAS IT YOU WERE DOING FOR THEM?
22 A. WELL, DEPENDING ON THE -- THE PERSON'S PROBLEMS OR -- OR
23 DIAGNOSIS AND -- AND SO FORTH, THERE WAS -- THERE WOULD BE A
24 FAIR AMOUNT OF INTERVENTION AS FAR AS PSYCHIATRIC
25 INTERVENTION, AS FAR AS MEDICATIONS FOR INDIVIDUALS THAT HAD
288
1 MAYBE SEVERE DEPRESSION OR ANXIETY OR A LOT OF AGITATION AND
2 MAYBE WERE A DANGER TO THEMSELVES OR OTHERS.
3 Q. WELL, I ASSUME YOU -- YOU WOULD REVIEW THE INTERNIST'S
4 ASSESSMENTS, THE SOCIAL WORKER'S ASSESSMENT, YOUR
5 EVALUATION, AND YOU WOULD COME UP WITH SOME KIND OF A PLAN.
6 IS THAT -- IS THAT AN APPROPRIATE SCENARIO?
7 A. YES.
8 Q. OKAY.
9 A. UH-HUH.
10 Q. NOW, THERE'S BEEN SOME -- SOME DISCUSSION ABOUT TEAM
11 CONCEPT HERE. WAS THERE INDEED A TEAM CONCEPT THAT -- THAT
12 EVOLVED AROUND THIS PARTICULAR UNIT?
13 A. YES.
14 Q. OKAY. CAN YOU TELL US A LITTLE BIT ABOUT WHAT THAT TEAM
15 CONCEPT MEANS?
16 A. WELL, IT JUST MEANS THAT MYSELF AS A PHYSICIAN, I DON'T
17 NECESSARILY WORK IN A VACUUM, BUT I WORK WITH NURSING AND --
18 AND PROGRAM DIRECTORS OR -- OR, YOU KNOW, THE -- THE CENTER
19 OR THE UNITS WORKING WITH THE CARE CENTER AS FAR AS IF THEY
20 CAME FROM A CARE CENTER ON MAYBE DISPOSITION BACK TO THAT
21 CARE CENTER. SO IT'S KIND OF AN ONGOING PROCESS THAT YOU --
22 AND IF SOMEONE IS RECEIVING THERAPY, WHETHER BY MYSELF OR
23 GENERALLY BY MAYBE THE THERAPIST THAT WAS THE SOCIAL WORKER
24 THERE, THEN I WOULD HAVE INPUT OR HEAR ABOUT WHAT'S GOING ON
25 WITH THAT.
289
1 Q. OKAY.
2 A. THERE WOULD BE TREATMENT TEAM MEETINGS, EXCUSE ME.
3 Q. SO THERE WOULD BE TREATMENT -- TREATMENT TEAM MEETINGS?
4 A. YES.
5 Q. HOW OFTEN WOULD THOSE MEETINGS OCCUR?
6 A. OH, ABOUT ONCE A WEEK.
7 Q. OKAY. AND WHO WOULD BE IN -- WHO WOULD BE IN ATTENDANCE
8 AT THOSE MEETINGS?
9 A. WE WOULD HAVE SOMETIMES AN INDIVIDUAL -- BECAUSE WE DID
10 SEVERAL THINGS -- PHYSICAL -- PHYSICAL THERAPY. SOMETIMES
11 PEOPLE WERE GETTING PHYSICAL THERAPY, OCCUPATION THERAPIST,
12 SOCIAL WORKER, NURSING, PHYSICIAN -- USUALLY A
13 PSYCHIATRIST -- AND SOMEONE FROM HORIZON, SUCH AS TODD
14 CHAMBERS.
15 Q. OKAY. AND SO YOU WOULD -- YOU WOULD DISCUSS THE
16 TREATMENT PLAN AT THAT TIME?
17 A. YOU'D TALK ABOUT WHAT'S -- WHAT'S BEEN GOING ON AND --
18 AND WHAT NEEDS TO BE DONE, OR A PLAN FOR THE NEAR FUTURE
19 OR -- AND POSSIBLE DISPOSITION AND SO FORTH, DISCHARGE.
20 Q. NOW, YOU'VE -- YOU'VE INDICATED THAT PART OF THE
21 INTERVENTION PROCESS, THE PSYCHIATRIC INTERVENTION PROCESS
22 INCLUDED, I ASSUME, MEDICATIONS; IS THAT CORRECT?
23 A. YES, THAT'S CORRECT.
24 Q. OKAY. AND WOULD YOU ADMINISTER MEDICATIONS TO THESE
25 PEOPLE IN THE COURSE OF YOUR TREATMENT?
290
1 A. YES. I WOULD RECOMMEND THAT CERTAIN MEDICATIONS BE
2 USED, AND TYPICALLY THE NURSES ARE THE PEOPLE THAT WOULD
3 ADMINISTER THAT TO THE PATIENT.
4 Q. OKAY. WHEN YOU SAY "RECOMMEND," WOULD YOU -- WOULD YOU
5 ORDER PRESCRIPTIONS FOR MEDICATIONS?
6 A. YES.
7 Q. OKAY. AND WOULD YOU DIRECT HOW THOSE MEDICATIONS WERE
8 TO BE ADMINISTERED?
9 A. HOW MUCH AND HOW OFTEN, YES. UH-HUH.
10 Q. OKAY.
11 A. AND WHAT TYPE.
12 Q. OKAY. AND SO IN THAT PROCESS, WOULD THERE BE A PROCESS
13 TO EVALUATE THE EFFECTS OF THOSE MEDICATIONS?
14 A. YES.
15 Q. OKAY. HOW OFTEN WOULD YOU EVALUATE THESE PATIENTS AND
16 ASSESS THEM?
17 A. GENERALLY CAME IN FIVE TO SIX TIMES A WEEK, USUALLY
18 ONCE -- YOU KNOW, ONCE A DAY ALMOST TO REASSESS THAT. AND
19 I'D USUALLY MEET TYPICALLY -- WITH PATIENTS I WAS
20 FOLLOWING -- WITH THE NURSING, WHOEVER, YOU KNOW, THE NURSE
21 WAS ON -- ON DUTY AT THAT TIME WHEN I WAS COMING IN TO KIND
22 OF REVIEW WHAT HAD BEEN HAPPENING THROUGH THE DAY. SO I'D
23 GOT INPUT AND THEN I WOULD TALK TO THE -- THE PATIENT AS
24 WELL.
25 Q. HOW LONG WOULD THAT PROCESS TAKE, SIR?
291
1 A. OH, FOLLOW-UP ON A PATIENT PROBABLY 25, 30 MINUTES.
2 Q. A DAY?
3 A. EACH -- EACH PATIENT, A DAY.
4 Q. OKAY. AND THERE WERE -- THERE WERE TEN -- TEN BEDS ON
5 THE UNIT. DO YOU KNOW WHETHER THE UNIT WAS -- WAS FULLY
6 OCCUPIED DURING YOUR TENURE?
7 A. IT WAS FAIRLY FULL. YES. I'D -- I'D SAY THAT IT WAS
8 RUNNING SOMETIMES FULL OR -- OR HAVING ABOUT EIGHT PATIENTS.
9 Q. OKAY. WHAT ABOUT PATIENTS WANTING TO GET INTO THE UNIT?
10 DID YOU EXPERIENCE ANY -- ANY DEMAND IN TERMS OF THIS
11 PARTICULAR UNIT?
12 A. YES, THERE WERE SOMETIMES PEOPLE THAT WERE WAITING TO
13 GET ON THE UNIT.
14 Q. OKAY. SO YOUR EXPERIENCE AND TESTIMONY WOULD BE THAT
15 FOR THE MOST PART, IT WAS FULL. IS THAT A CORRECT
16 CHARACTERIZATION OF YOUR TESTIMONY?
17 A. YEAH, I -- START -- STARTING OUT I -- I THINK IT WAS
18 FAIRLY BUSY FOR A NEW UNIT, YEAH.
19 Q. OKAY.
20 A. AFTER -- WITHIN A MONTH OR TWO IT WAS FAIRLY BUSY. IT
21 WAS BUSY TO START, TOO.
22 Q. DID THERE COME A TIME -- WELL, LET ME ASK YOU THIS. AT
23 THE INCEPTION OF THE UNIT, WAS THERE A NEED FOR MORE THAN
24 ONE DOCTOR ON THE UNIT?
25 A. ABSOLUTELY.
292
1 Q. OKAY. AND TO YOUR UNDERSTANDING, WAS -- WERE THEY
2 SUPPOSED TO BE HIRING ANOTHER DOCTOR?
3 A. YES.
4 Q. OKAY. DO YOU KNOW HOW LONG IT WAS BEFORE THERE WAS
5 ANOTHER PHYSICIAN THAT CAME ON THE UNIT?
6 A. IT WAS -- IT WAS MONTHS.
7 Q. OKAY.
8 A. IT WAS A WHILE.
9 Q. AND -- AND WHO WAS THAT?
10 A. DR. WEITZEL.
11 Q. OKAY. SO HE WAS -- HE WAS ALSO CONTRACTED FOR AT THAT
12 TIME?
13 A. YES.
14 Q. OKAY. AND DID YOU HAVE ANY -- WELL, WHEN -- WHEN
15 DR. WEITZEL CAME ON BOARD, WAS THERE ANY UNDERSTANDING AS TO
16 WHAT HIS TITLE WOULD BE OR WHAT HIS RESPONSIBILITIES AND
17 DUTIES WOULD BE?
18 A. AS FAR AS I UNDERSTAND, HIS RESPONSIBILITIES AND DUTIES
19 WERE FAIRLY SIMILAR TO MINE. I THINK THE ONE DIFFERENCE WAS
20 THAT HE -- HE ALSO WOULD HAVE BEEN AN INDEPENDENT CONTRACTOR
21 DOING OTHER -- OTHER WORK AND HE WOULD CONTRACT OUT WITH
22 HORIZON AND I THINK HE WAS -- WAS GIVEN SO MANY HOURS OF
23 ADMINISTRATIVE TIME A MONTH. AND I CAN'T REMEMBER, THAT WAS
24 PROBABLY LIKE 10 OR 15 HOURS. IT WAS LESS THAN MINE.
25 Q. OKAY. SO DID YOU SHARE THE WORKLOAD AT THAT POINT?
293
1 A. WELL, ORIGINALLY, AS I WAS ON THE UNIT BY MYSELF FOR
2 MONTHS AND DIDN'T HAVE ANYONE TO COVER FOR ME, I WAS
3 RESPONSIBLE 24 HOURS A DAY, SEVEN DAYS A WEEK. AND I'D DONE
4 THAT FOR A NUMBER OF MONTHS WORKING NIGHTS FROM LIKE 6:00 AT
5 NIGHT TILL 11:00 OR SO AT NIGHT, AND THEN WORKING FULL TIME
6 IN THE DAY FOR F.H.P. I DIDN'T EXPECT IT TO BE QUITE LIKE
7 THAT AND WAS KIND OF GETTING TIRED. MY FAMILY WAS NOT DOING
8 TOO WELL WITH THAT EITHER.
9 Q. OKAY. SO -- SO WHAT -- HOW DID YOU DIVIDE UP THE
10 CASELOAD, DOCTOR? CAN YOU TELL US THAT?
11 A. WELL, I THINK WHEN DR. WEITZEL CAME ON I -- A LOT OF THE
12 PATIENTS WENT TO HIM, AND HE WANTED MANY OF THE PATIENTS AND
13 SEEMED TO HAVE THE TIME AND --
14 Q. DID HE EVER EXPRESS A NEED TO HAVE MORE PATIENTS TO YOU?
15 A. TO BE A PART OF THE UNIT I THINK HE NEEDED TO HAVE SO
16 MANY PEOPLE ON THE UNIT OR WANTED SO MANY SO HIS TRAVEL AND
17 SO FORTH, THAT IT WOULD BE --
18 Q. OKAY.
19 A. -- A GOOD PLACE FOR HIM TO WORK AT, I GUESS.
20 Q. DID -- DID YOU EVER GET ANY IMPRESSIONS THAT HE WANTED
21 MORE WORK ON THE UNIT THAN WHAT HE HAD ORIGINALLY?
22 A. WELL, AS -- AS MY TIME -- EXCUSE ME, MY RESPIRATORY
23 THING. WITH MY TIME AT F.H.P. I EVENTUALLY BECAME A TEAM
24 LEADER IN THE NORTHERN UTAH AREA AND THEN I WAS CHOSEN TO BE
25 THE DIRECTOR OF THE BEHAVIORAL HEALTH SERVICE -- SERVICES
294
1 FOR F.H.P. UTAH WHICH PLACED A LOT OF DEMANDS ON ME. AND
2 DR. WEITZEL DIDN'T MIND TAKING LIKE ALL THE PATIENTS.
3 Q. I SEE.
4 A. SO FOR A LONG TIME I -- I PRETTY MUCH STARTED GETTING
5 OUT OF WORKING THERE LESS AND LESS.
6 Q. OKAY. SO AS YOU GOT OUT OF WORKING THERE LESS AND LESS,
7 DR. WEITZEL PICKED UP THE -- THE SLACK, IF YOU WILL?
8 A. YES.
9 Q. OKAY. DID YOU -- DID YOU GIVE HIM ANY OF YOUR
10 ADMINISTRATIVE HOURS?
11 A. I -- I DID LATER ON.
12 Q. OKAY. SO HOW LONG WAS THIS PROCESS GOING ON WHERE YOU
13 WERE STARTING TO WORK THERE LESS AND LESS AND HE WAS
14 STARTING TO WORK MORE AND MORE?
15 A. I -- I'M NOT SURE OF THE TIME FRAME EXACTLY WHEN THAT
16 OCCURRED. AS I -- AT FIRST IT WAS MORE OF A RELIEF THAT I
17 JUST HAD SOMEBODY THERE TO KIND OF DO THINGS SO I COULD TAKE
18 A BREAK FOR A WHILE.
19 Q. OKAY. DID THERE COME A TIME THAT YOU QUIT THE UNIT?
20 A. YES.
21 Q. AND WHEN WAS THAT, SIR? DO YOU REMEMBER?
22 A. I DON'T REMEMBER EXACTLY. I HAD WRITTEN A LETTER
23 PROBABLY IN '95. I WROTE SOMETHING AND MY WIFE PUT ON OUR
24 WORD PROCESSOR AND I -- I ADDRESSED THAT TO WYLIE BARNER,
25 WHO WAS KIND OF A REGIONAL PERSON AT HORIZON, AND THEN TODD
295
1 CHAMBERS, BASICALLY SAYING, YOU KNOW, I'M -- I'M THE
2 DIRECTOR, BUT, YOU KNOW, YOU CAN REPLACE ME IF YOU WISH ANY
3 TIME. I DON'T MIND HELPING OUT IN A PINCH, BUT I'M GOING IN
4 A DIFFERENT DIRECTION.
5 Q. OKAY. SO YOU -- YOU GAVE THEM NOTICE, ESSENTIALLY, THAT
6 YOU WERE DESIROUS OF GETTING OUT OF THE GEROPSYCH UNIT AT
7 THAT TIME?
8 A. YEAH, THAT I -- WELL, IF I WAS THERE IT WOULD -- THAT IT
9 WAS OKAY IF THEY REPLACED ME, BUT I'D BE THERE MINIMALLY.
10 Q. OKAY. BUT DID THERE COME A TIME, SIR, THEN THAT YOU
11 ESSENTIALLY TERMINATED YOUR INVOLVEMENT WITH THE GEROPSYCH
12 UNIT ON A DAY-TO-DAY BASIS?
13 A. I KNOW I WASN'T REALLY INVOLVED -- THE HOSPITAL WAS NOT
14 GOING TO USE HORIZON ANYMORE AND I BELIEVE THAT WAS AROUND
15 OCTOBER OF '96 OR --
16 Q. OKAY.
17 A. BUT ABOUT THREE OR FOUR MONTHS EARLIER I KNEW I
18 WASN'T -- I CAN'T REMEMBER WHEN I GAVE EXACT DATE OF -- I
19 WASN'T DOING ANYTHING THERE.
20 Q. OKAY. LET ME JUST ASK YOU A COUPLE OF OTHER QUESTIONS.
21 WERE PATIENTS -- PURSUANT TO THE CRITERIA WERE -- WELL, I'LL
22 ASK IT THIS WAY. WHAT IS YOUR UNDERSTANDING OF A PATIENT
23 WHO'S DESCRIBED AS BEING TERMINAL? WHAT DOES THAT MEAN?
24 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
25 REALLY HIS -- HIS PERSONAL OPINION OR HIS PROFESSIONAL
296
1 OPINION IS IRRELEVANT. IF IT'S TIED TO SOMETHING IN TERMS
2 OF CRITERIA OF THE UNIT, THEN IT MAY BE RELEVANT. SO I'D
3 OBJECT AS TO RELEVANCY.
4 THE COURT: OKAY. WHERE IS THIS GOING?
5 MR. WILSON: LET ME REPHRASE THE QUESTION.
6 THE COURT: OKAY. GO AHEAD.
7 Q. (BY MR. WILSON) TO YOUR UNDERSTANDING OF THE CRITERIA
8 OF THE UNIT, WOULD TERMINAL PATIENTS BE ALLOWED OR ADMITTED
9 TO THE UNIT?
10 A. NO.
11 Q. OKAY. AND WHY WAS THAT, SIR?
12 A. WELL, THE UNIT, AGAIN, WAS TO DEAL WITH PSYCHIATRIC
13 NEEDS OF PATIENTS WHERE YOU HOPEFULLY COULD HAVE SOME
14 BENEFIT OR -- OR OUTCOME. IT WASN'T A HOSPICE UNIT OR -- OR
15 A PLACE WHERE PEOPLE COME -- WOULD COME TO DIE.
16 Q. OKAY. NOW, AGAIN, IN RESPECT TO A PATIENT BEING
17 ADMITTED TO THE UNIT, IF A PATIENT SUBSEQUENTLY DEVELOPED
18 SOME KIND OF A CONDITION THAT MIGHT BE DESCRIBED AS TERMINAL
19 ON THE UNIT, WHAT WOULD YOU DO IN RESPONSE TO THAT?
20 A. WELL, IF IT WAS BASED ON THE NEEDS OF THE PATIENT, IF
21 THE -- IF THE MEDICAL NEEDS WERE MORE LET'S SAY PRESSING AND
22 NEEDED ATTENTION, OR NOTHING WAS GOING TO BE DONE ACTIVELY,
23 WE WOULD PROBABLY TRANSFER THE PATIENT MAYBE TO HOME OR TO A
24 CARE CENTER OR AN EXTENDED CARE FACILITY, LET'S SAY NEXT
25 DOOR IN THE HOSPITAL, AND NOT THE GEROPSYCH UNIT.
297
1 Q. WHAT ABOUT A SERIOUS MEDICAL CONDITION THAT WASN'T
2 NECESSARILY TERMINAL?
3 A. WE'D WORK WITH THE INTERNIST OR FAMILY DOCTOR TO
4 TRANSFER THEM TO LIKE THE INTENSIVE CARE UNIT OR THE
5 MEDICAL/SURGICAL UNIT AT THE HOSPITAL, TYPICALLY.
6 Q. SO THEY'D BE TRANSFERRED OUT OF YOUR UNIT?
7 A. YES.
8 Q. CAN YOU TELL ME WHETHER OR NOT YOU HAD APPLIED FOR AND
9 RECEIVED PRIVILEGES AT THE HOSPITAL?
10 A. YES.
11 Q. OKAY. AND IS THAT A CREDENTIALING PROCESS THAT YOU WENT
12 THROUGH?
13 A. YES. I -- I MAKE APPLICATION AND THEN THE HOSPITAL
14 WOULD GO THROUGH A CERTAIN CREDENTIALING PROCESS TO VERIFY
15 MY LICENSES AND ALL THAT KIND OF THING, TRAINING, AND --
16 Q. AND IN RESPECT TO THE PRIVILEGES YOU WERE AFFORDED, WERE
17 YOU AFFORDED SPECIFIC TYPES OF PRIVILEGES? CAN YOU TELL US
18 WHAT TYPES OF PRIVILEGES YOU WERE AFFORDED?
19 A. PRIVILEGES WOULD BE THOSE THINGS THAT I WOULD FEEL
20 COMPETENT IN DOING OR HAVE TRAINING IN DOING REGULARLY, AND
21 THAT MAY VARY. I WOULD HAVE TO ALMOST LOOK AT -- EACH
22 HOSPITAL HAS DIFFERENT ONES AND I'VE BEEN INVOLVED IN
23 DIFFERENT HOSPITALS.
24 Q. WELL, FOCUSING YOUR ATTENTION ON DAVIS HOSPITAL.
25 A. UH-HUH.
298
1 Q. DO YOU HAVE A RECOLLECTION AS TO WHAT PRIVILEGES YOU
2 WERE GRANTED TO -- TO PRACTICE AT DAVIS HOSPITAL?
3 A. MAINLY ALONG THE LINES OF -- OF PSYCHIATRIC ADMISSIONS
4 AND CONSULTATIONS AND TREATMENT AND -- RELATED TO MY FIELD.
5 Q. OKAY. WERE YOU -- WERE YOU ALSO -- IN THAT PROCESS, DID
6 YOU HAVE OPPORTUNITY TO REVIEW HOSPITAL POLICIES?
7 A. YES. AS AN ACTIVE STAFF MEMBER THEY HAVE CERTAIN BYLAWS
8 AND THINGS LIKE THAT.
9 Q. OKAY. IS THERE AN AGREEMENT THAT YOU SIGN OFF ON WHEN
10 YOU ARE GRANTED ACCREDITATION AND PRIVILEGES WITH THE
11 HOSPITAL?
12 MR. STIRBA: YOU KNOW, YOUR HONOR, I'M GOING TO
13 OBJECT. IRRELEVANT. I DON'T KNOW THE RELEVANCY OF HIS
14 PRIVILEGE SITUATION AT THE HOSPITAL, YOUR HONOR.
15 THE COURT: SUSTAINED.
16 Q. (BY MR. WILSON) LET ME ASK YOU THIS. WERE YOU ALLOWED
17 MEDICAL SERVICE PRIVILEGES?
18 A. YES, LIMITED.
19 Q. OKAY. IN WHAT CONTEXT, SIR?
20 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
21 AGAIN, IRRELEVANT, HIS PRIVILEGE STATUS.
22 THE COURT: SUSTAINED.
23 Q. (BY MR. WILSON) DID YOU EVER ADMINISTER CONTROLLED
24 SUBSTANCES ON THE UNIT?
25 MR. STIRBA: OBJECTION. IRRELEVANT, YOUR HONOR.
299
1 THE COURT: SUSTAINED.
2 Q. (BY MR. WILSON) WERE YOU ON THE UNIT DURING THE TIME
3 PERIOD EXTENDING FROM DECEMBER 6, 1995, THROUGH JANUARY 14,
4 1996?
5 A. NOT ACTIVELY, I DON'T -- I DON'T BELIEVE. I WAS
6 PROBABLY --
7 Q. OKAY. DID YOU EVER HAVE OCCASION, SIR, DURING THAT TIME
8 FRAME TO BECOME AWARE OF ANY DEATHS ON THE UNIT?
9 A. I WAS AWARE -- I CAME ONTO THE UNIT -- AND I DON'T
10 REMEMBER IF I WAS COVERING FOR DR. WEITZEL FOR LIKE A
11 WEEKEND OR A VACATION OR SOMETHING, BUT I CAME ONTO THE UNIT
12 AND A NURSE OR A COUPLE OF PEOPLE CAME TO ME AND -- AND
13 SAID, DID YOU KNOW THERE'D BEEN A NUMBER OF PEOPLE THAT HAVE
14 DIED ON THE UNIT?
15 Q. OKAY. SO YOU WEREN'T PRESENT DURING THE TIME PERIOD
16 THAT THESE PEOPLE DIED; IS THAT CORRECT?
17 A. THAT'S CORRECT.
18 Q. ALL RIGHT.
19 MR. WILSON: MAY I HAVE JUST A MINUTE, YOUR HONOR?
20 THE COURT: YES.
21 (WHEREUPON, THERE'S AN OFF-THE-RECORD DISCUSSION BETWEEN
22 MR. WILSON AND MS. BARLOW.)
23 Q. (BY MR. WILSON) COULD YOU -- COULD YOU WORK ON THE
24 UNIT ITSELF WITHOUT PRIVILEGES, SIR?
25 MR. STIRBA: YOUR HONOR, I'M GOING TO OBJECT.
300
1 RELEVANCE.
2 MR. WILSON: I THINK -- I THINK THAT HAS RELEVANCE,
3 YOUR HONOR. MAY WE APPROACH?
4 THE COURT: WELL, I THINK WHAT I'M GOING TO DO IS
5 THIS.
6 LADIES AND GENTLEMEN, WHAT WE'RE GOING TO DO IS THAT
7 THERE'S NOT THIS MATTER ONLY, BUT THERE'S ANOTHER LEGAL
8 MATTER WE HAVE TO DISCUSS. AND COUNSEL AND I DISCUSSED THAT
9 WE'D TRY TO DO THIS SOMETIME THIS MORNING BEFORE WE START
10 THIS AFTERNOON.
11 SO LIKE WE DID THE OTHER DAY, I'M GOING TO LET YOU GO
12 TO LUNCH AT 11:30 TO BE BACK HERE AT 1:00 INSTEAD OF GOING
13 FROM 12:00 TO 1:30.
14 AND AS YOU ARE AT LUNCH, AGAIN, REMEMBER RADIOS IN
15 CARS, CELL PHONE, PAGERS, DON'T LOOK AT ANY NEWS ABOUT THIS
16 CASE. IT'S ALSO YOUR DUTY NOT TO CONVERSE AMONG YOURSELVES
17 OR CONVERSE WITH OR ALLOW YOURSELF TO BE ADDRESSED BY ANY
18 OTHER PERSON ON ANY SUBJECT OF THIS TRIAL. AND IT'S ALSO
19 YOUR DUTY NOT TO FORM OR EXPRESS AN OPINION THEREON UNTIL
20 THIS CASE IS FINALLY SUBMITTED TO YOU.
21 SO WE'LL BE IN RECESS UNTIL 1 O'CLOCK. AND SEE YOU
22 BACK THEN.
23 (WHEREUPON, AT THIS TIME THE JURY LEAVES THE COURTROOM,
24 AFTER WHICH PROCEEDINGS RESUME, AS FOLLOWS:)
25 THE COURT: OKAY. THE RECORD SHOULD -- YOU MAY BE
301
1 SEATED. THE REFLECT SHOULD REFLECT THAT THE JURY HAS GONE.
2 WHAT I WOULD LIKE TO DO IS JUST GIVE THE COURT REPORTER
3 ABOUT -- LET'S SAY A FIVE MINUTE BREAK, IF WE COULD, AND
4 THEN WE'LL ADDRESS THIS LAST ISSUE. AND THEN I WANT TO
5 ADDRESS THE HOSPITAL POLICIES ISSUE AFTER. SAY LET'S TAKE A
6 BREAK FOR ABOUT FIVE MINUTES.
7 (WHEREUPON, AT THIS TIME THERE'S A RECESS, AFTER WHICH
8 PROCEEDINGS RESUME OUT OF THE HEARING OF THE JURY, AS
9 FOLLOWS:)
10 THE COURT: OKAY. WE'RE BACK ON THE RECORD AND THE
11 JURY IS NOT PRESENT. AND MAYBE WHAT WE OUGHT TO ADDRESS,
12 FIRST OF ALL, IS THE LAST OBJECTION. IF YOU COULD JUST
13 REPHRASE OR JUST TELL ME WHAT THE QUESTION WAS AGAIN SO WE
14 CAN --
15 MR. WILSON: WELL, THE QUESTION AS I ASKED IT IS
16 CAN A PHYSICIAN WORK WITHOUT PRIVILEGES. I THINK -- I
17 THINK -- OR MAYBE I CHARACTERIZED IT WRONG IN ASKING HIM IF
18 HE COULD WORK AT THE HOSPITAL WITHOUT PRIVILEGES.
19 THE RELEVANCE, YOUR HONOR, IS THERE -- IT RELATES --
20 IT'S FOUNDATIONAL FROM THE STANDPOINT I THINK IT GOES TO --
21 TO SHOW THAT IN LATER DOCUMENTS THAT WE INTEND TO INTRODUCE
22 WILL RELATE TO THE PRIVILEGES THAT WERE GRANTED TO
23 DR. WEITZEL AND, IN FACT, AS TO WHAT TYPE OF CARE CAN BE
24 RENDERED ON THE UNIT.
25 THIS IS -- THIS IS STRICTLY A -- SOMETHING THAT I THINK
302
1 WE NEED TO ESTABLISH HERE WITH THIS TESTIMONY THAT
2 PHYSICIANS WHO WERE ON THE GEROPSYCH UNIT HAD TO APPLY FOR
3 ACCREDITATION, THEY HAD TO BE GRANTED PRIVILEGES, AND THEY
4 COULD NOT WORK WITHOUT THOSE PRIVILEGES IN THE HOSPITAL
5 SETTING.
6 THE COURT: WELL, AND -- AND WHAT DOES THAT GO TO?
7 MR. WILSON: WELL, I THINK -- I THINK IT GOES TO
8 ESTABLISH A FOUNDATION FOR THE BASIS THAT, LIKE I SAID, THAT
9 LATER ON WE'LL INTRODUCE EVIDENCE THAT RELATES TO WHAT
10 PRIVILEGES DR. WEITZEL HAD AT THAT TIME. I'M NOT -- I'M NOT
11 SAYING THAT THIS DOCTOR'S PRIVILEGES WERE THE SAME AS
12 DR. WEITZEL'S. WHAT I'M SAYING IS I THINK WE NEED TO
13 ESTABLISH WHAT -- WHAT IS THE NATURE OF THE HOSPITAL
14 SETTING, HOW DOES IT WORK, SO THAT THIS JURY CAN HAVE AN
15 UNDERSTANDING AS TO WHAT A PHYSICIAN CAN AND CANNOT DO. AND
16 I THINK THAT RELATES TO THE NATURE OF THE TREATMENT THAT
17 DR. WEITZEL SUBSEQUENTLY PERFORMS AT THE HOSPITAL, AT LEAST.
18 WE FEEL THAT HE WENT BEYOND HIS PRIVILEGES THAT WERE
19 SANCTIONED.
20 WE'VE ALREADY HEARD EVIDENCE AS TO THE FACT THAT --
21 THAT DR. JENSEN WOULD TRANSPORT PATIENTS WHO WERE NOT --
22 WHO -- WHO, FIRST OF ALL, WOULD NOT ADMIT PATIENTS WHO WERE
23 TERMINALLY ILL, AS PART OF THE CRITERIA; AND SECOND OF ALL,
24 WOULD -- WOULD SUBSEQUENTLY TRANSFER PATIENTS WHO DEVELOPED
25 ANY KIND OF SERIOUS MEDICAL CONDITION OR WERE LATER
303
1 DIAGNOSED AS BEING TERMINAL.
2 THE COURT: AND THE WITNESS BEFORE, AS I RECALL,
3 WHEN YOU WERE NOT -- WHEN YOU WERE OUT PROBABLY WITH THE
4 OTHER DOCTOR, BUT I THINK THE OTHER WITNESS TESTIFIED THAT
5 IN SOME CASES THEY WOULD ADMIT TERMINAL PATIENTS.
6 MR. WILSON: WELL, AND -- AND THAT'S FINE.
7 THE COURT: YEAH, WELL, SO I'M --
8 MR. WILSON: WE'RE TALKING ABOUT THIS DOCTOR WHO
9 WAS RUNNING THE UNIT, YOU KNOW, FROM THAT STANDPOINT.
10 THE COURT: OKAY.
11 MR. WILSON: AND THE JURY CAN WEIGH THE TESTIMONY
12 IN -- IN THAT RESPECT.
13 THE COURT: OKAY. ALL RIGHT. WHAT IS THE
14 OBJECTION, AS TO THE QUESTION OF WHETHER YOU CAN WORK IN A
15 HOSPITAL WITHOUT PRIVILEGES?
16 MR. STIRBA: FIRST OF ALL, I DIDN'T KNOW THAT WAS
17 EVEN IN DISPUTE IN THIS CASE, SO I THINK IT'S MISLEADING AND
18 NOT NECESSARY TO HAVE IN EVIDENCE. AND, SECOND OF ALL, HIS
19 PRIVILEGE SITUATION IS IRRELEVANT.
20 THE COURT: OKAY. WHAT -- WHAT ABOUT HIM
21 TESTIFYING AS A FOUNDATION THAT YOU HAVE TO -- YOU HAVE TO
22 HAVE PRIVILEGES FROM THE HOSPITAL TO WORK AT THE HOSPITAL?
23 I MEAN, IS THAT DISPUTED?
24 MR. STIRBA: IT'S -- IT'S -- IT'S NOT. I DIDN'T
25 KNOW THAT IT WAS AN ISSUE IN THE CASE. I JUST THINK -- I
304
1 JUST THINK WE HAVE SHEILA HEWARD, THE HOSPITAL
2 REPRESENTATIVE. I ALREADY THINK SHE TESTIFIED ESSENTIALLY
3 TO THE WHOLE PROCESS OF PRIVILEGES.
4 THE COURT: WELL, I THOUGHT I HEARD IT SOMEWHERE.
5 AND I GUESS THE OTHER THING THAT RAISES, ANOTHER ISSUE, I'VE
6 NOW HEARD FROM THREE OR FOUR WITNESSES WHAT THIS PLACE LOOKS
7 LIKE AND IT HAS TEN BEDS AND IT HAS TWO LOCKED DOORS AND
8 ONE -- ON ONE SIDE OF THE UNIT IS THIS AND ONE SIDE OF THE
9 UNIT IS THAT. AND I'M JUST GOING TO TELL EVERYBODY WHAT I
10 SAID BEFORE. RULE 611 SAYS THE COURT SHALL EXERCISE
11 REASONABLE CONTROL OVER THE MODE AND ORDER OF INTERROGATING
12 WITNESSES AND PRESENTING EVIDENCE, SO AS TO MAKE THE
13 INTERROGATION AND PRESENTATION EFFECTIVE FOR THE
14 ASCERTAINMENT OF THE TRUTH, AVOID NEEDLESS CONSUMPTION OF
15 TIME.
16 AND I THINK THAT WE DON'T NEED -- YOU KNOW, UNLESS
17 THERE'S SOME REASON THAT ALL OF THEM HAVE SAID THE SAME
18 THING, I DON'T THINK WE NEED FIVE MORE WITNESSES TESTIFYING
19 THAT IT HAS TEN BEDS AND IT HAS TWO LOCKED DOORS, ET CETERA,
20 AS TO THE OTHER ISSUE.
21 NOW, I WILL LET THAT QUESTION WHETHER -- JUST ONE MORE
22 TIME, BUT I BELIEVE THAT THE FIRST WITNESS YESTERDAY DID
23 TESTIFY -- I KNOW I'VE HEARD THAT SOMEWHERE DURING THIS
24 TRIAL IN THE LAST TWO DAYS. SO I'LL LET THAT QUESTION BE
25 ASKED ABOUT WHETHER YOU HAVE TO HAVE PRIVILEGES TO WORK AT
305
1 THE HOSPITAL, WHEN THE WITNESS COMES BACK.
2 MR. WILSON: YOUR HONOR, WE -- WE ALSO INTEND TO
3 ASK AS IT RELATES TO A CERTAIN CONVERSATION THAT THE DOCTOR
4 HAD WITH DR. WEITZEL AS IT RELATED TO THE OVERMEDICATING OF
5 PATIENTS AND WHAT WENT ON IN THAT DISCUSSION. AND I JUST
6 PROFFER THAT AT THIS TIME FOR PURPOSES OF -- AS LONG AS
7 WE'RE ADDRESSING SOME OF THESE ISSUES.
8 THE COURT: OKAY. AND IS THAT -- ARE WE TALKING
9 ABOUT THE PATIENTS INVOLVED IN THIS CASE OR IS THIS A
10 SITUATION OF OTHER ONES?
11 MR. WILSON: NO, WE'RE NOT TALKING ABOUT PATIENTS
12 INVOLVED IN THIS CASE. WE'RE TALKING ABOUT A TIME PERIOD
13 THAT WAS BEFORE THE PATIENTS IN THIS CASE, BUT I DO THINK IT
14 GOES TO SHOW KNOWLEDGE, IT GOES TO SHOW INTENT, AND IT
15 SHOULD GO -- GOES TO SHOW A PATTERN OF OVERMEDICATING
16 PATIENTS WHICH IS, YOUR HONOR, THE -- THE BASIC FRAMEWORK OF
17 OUR WHOLE CASE. THAT THESE PATIENTS WERE INDEED, UPON
18 ADMISSION, OVERMEDICATED, AND THAT MEDICATION IN AND OF
19 ITSELF CREATED A SITUATION WHERE THEY WERE NOT RESPONSIVE,
20 WHERE THEY DID NOT EAT, THEY DETERIORATED, AND SUBSEQUENTLY
21 WERE DETERMINED TO BE TERMINAL BY DR. WEITZEL.
22 THE COURT: OKAY. AS TO THAT ISSUE, TELL ME WHAT
23 THE CIRCUMSTANCES WERE OF THE PATIENT THAT WAS INVOLVED IN
24 THIS DISCUSSION.
25 MR. WILSON: WELL, AND WITHOUT DR. JENSEN HERE, I
306
1 DON'T KNOW WHETHER I CAN CHARACTERIZE IT COMPLETELY. AS I
2 UNDERSTAND IT, DR. JENSEN WAS -- WAS ASKED TO HAVE A
3 CONVERSATION WITH DR. WEITZEL ABOUT HIS PRACTICE OF
4 MEDICATING PATIENTS, AND THIS WAS -- WAS THROUGH THE
5 HORIZONS CORPORATION THAT REQUESTED THAT HE HAVE THAT
6 CONVERSATION.
7 THE COURT: OKAY. DO YOU WANT TO SPEAK TO THAT?
8 MR. STIRBA: YES, YOUR HONOR. FIRST OF ALL, I
9 WOULD CLAIM UNFAIR SURPRISE. DR. JENSEN, I BELIEVE, WAS
10 NEVER INTERVIEWED BY THE STATE. THIS IS THE FIRST TIME I'VE
11 EVER HEARD OF THIS CONVERSATION. RIGHT NOW.
12 TWO, IT'S -- IT'S IRRELEVANT. WE'RE GETTING INTO HE'S
13 A BAD DOC AS OPPOSED TO WHETHER WE HAVE CRIMINAL ACTS
14 RELATING TO THESE FIVE PATIENTS.
15 THREE, YOU KNOW, MR. CHAMBERS WAS UP HERE, CALLED IN
16 ALL THE WAY FROM COLORADO, AND HE'S NEVER MENTIONED THIS IN
17 ANY INTERVIEW THAT I'VE EVER SEEN. SO THIS IS -- THIS IS
18 THE FIRST TIME I'VE EVER EVEN HEARD ABOUT THIS. AND WITHOUT
19 A VERY SPECIFIC, ADEQUATE PROFFER BY COUNSEL, YOU KNOW,
20 OTHER THAN I CAN SAY THE GENERALITIES, IT'S VERY DIFFICULT
21 FOR ME TO ASSESS IT.
22 BUT I WILL SAY I'VE NEVER HEARD OF IT BEFORE UNTIL NOW.
23 I THINK IT'S IRRELEVANT. I THINK WE'RE IN THE SITUATION,
24 ONCE AGAIN, WE WANT TO CALL HIM A BAD DOC.
25 AND QUITE FRANKLY, I THINK THE MEDICAL EVIDENCE FROM
307
1 EVERYBODY HERE IS THAT THE -- THE MEDICATION OF THESE
2 PATIENTS WAS NOT AN EASILY DIVINED THING AND THERE WERE
3 CIRCUMSTANCES -- IT'S RIGHT THERE IN THE HOSPITAL RECORDS,
4 IN SOME OF THE NURSING HOMES, WHERE THERE WERE CONCERNS
5 ALWAYS EXPRESSED ABOUT WHETHER YOU HAVE AN OVERLY SEDATED
6 PATIENT VERSUS THE UTILITY OF THE MEDICATION PROVIDING
7 BEHAVIOR CONTROL. IT'S ALWAYS AN ISSUE. AND I THINK IT'S
8 JUST CONFUSING TO THE JURY.
9 THE COURT: OKAY. ON THIS ISSUE THEN WHAT I'M
10 GOING TO REQUIRE IS THAT YOU GIVE A MORE COMPLETE
11 DESCRIPTION OF WHAT THAT'S GOING TO BE. WE'RE NOT GOING TO
12 DO IT RIGHT BECAUSE I'D LIKE TO ADDRESS THAT OTHER ISSUE,
13 BUT WE'LL ADDRESS THIS LET'S SAY AT 10 MINUTES TO -- OR
14 YEAH, LET'S SAY 10 MINUTES TO 1:00. SO YOU'LL HAVE A CHANCE
15 TO GET SOMETHING TO EAT, BUT ALSO TO LET THE DEFENDANT KNOW
16 AND THEN WE'LL ADDRESS THAT ISSUE THEN.
17 OKAY. THE OTHER ISSUE THAT WE HAVE RIGHT HERE IS THAT
18 I UNDERSTAND FROM LAST FRIDAY, AND I'M -- I DON'T KNOW WHY I
19 DIDN'T ASK THIS LAST FRIDAY. I MUST HAVE BEEN GETTING
20 TIRED. BUT WHEN YOU WERE ASKING ABOUT WHAT YOUR
21 WITNESSES -- WHO YOUR WITNESSES WERE GOING TO BE FOR MONDAY,
22 YOU MENTIONED YOU WERE GOING TO RECALL SHEILA HEWARD. AND I
23 GUESS THE QUESTION I HAD IS -- AND I SHOULD HAVE ASKED IT AT
24 THE TIME -- WHY ARE WE RECALLING A WITNESS THAT WAS JUST ON
25 THE STAND FRIDAY AND THAT WAS STILL PRESENT --
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1 MR. WILSON: WELL, I THINK IT GOES TO THE VERY
2 ISSUE THAT -- THAT THE MOTION WAS FILED FOR, YOUR HONOR.
3 THE COURT: WHY WASN'T SHE ASKED THIS QUESTION LAST
4 FRIDAY?
5 MR. WILSON: WELL, SHE WAS ASKED THE QUESTION AND
6 HER ANSWER WAS DIFFERENT THAN THE ANSWER SHE'D GIVEN ME THE
7 DAY BEFORE. THE COURT WILL RECALL, I HAD PREPARED AN
8 EXHIBIT. IT WAS ENTITLED PLAINTIFF'S EXHIBIT 1.
9 THE COURT: AND SHE SAID SHE DID NOT KNOW WHETHER
10 THAT WAS IN EFFECT DURING THE RELEVANT TIME PERIOD OF THIS
11 CASE. THAT'S WHAT SHE TESTIFIED TO.
12 MR. WILSON: WELL, YEAH, SHE -- BUT THE DAY BEFORE
13 SHE'D INDICATED TO ME WHEN I SHOWED HER THE EXHIBIT THAT IT
14 WAS THE -- IT WAS THE POLICY THAT WAS IN EFFECT DURING THE
15 RELEVANT TIME PERIOD, SO I WAS SOMEWHAT SURPRISED, BUT I DID
16 NOT OFFER THE EXHIBIT FOR THAT PURPOSE.
17 WE HAVE DONE -- AND I'VE SENT HER BACK AND SHE'S DONE
18 SUBSEQUENT RESEARCH. WE HAVE PREPARED A NEW EXHIBIT WITH
19 THE POLICY THAT WAS IN EFFECT FOR THOSE PARTICULAR TIME
20 PERIODS, AND WHICH I'M CALLING HER BACK TO TESTIFY AS TO
21 THAT.
22 THE COURT: WELL, WHAT -- WHAT IS HER FOUNDATION
23 WHEN SHE CAME TO WORK THERE IN 1998 AND SHE GOES BACK THERE
24 AND FINDS OUT FROM WHO? IS IT HEARSAY THAT SHE'S FINDING
25 OUT WHAT WAS IN EFFECT BECAUSE HOW CAN SHE DIVINE WHAT WAS
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1 IN EFFECT IF SHE WAS NOT THERE AT THE TIME?
2 MR. WILSON: BECAUSE SHE CAN GO TO WHERE THE
3 RECORDS ARE KEPT AND MAINTAINED AND THE OLD POLICIES, YOUR
4 HONOR, AND SHE HAS -- SHE HAS PROCURED A COPY OF THOSE OLD
5 POLICIES.
6 THE COURT: WELL, WHY DIDN'T WE HAVE THE OLD POLICY
7 YESTERDAY OR FRIDAY?
8 MR. WILSON: I THOUGHT WE DID HAVE THE OLD POLICY
9 FRIDAY, YOUR HONOR.
10 THE COURT: OKAY. WELL, THEN THAT LEADS US TO THE
11 DEFENDANT'S MEMORANDUM REGARDING HOSPITAL POLICIES AS
12 INADMISSIBLE. AND SO MR. STIRBA, I GUESS THIS IS YOUR
13 MOTION?
14 MR. STIRBA: YES, YOUR HONOR, AND IT'S PRETTY MUCH
15 OUTLINED IN OUR MEMO, BUT BASICALLY STATE LAW IS ONE THING,
16 HOSPITAL POLICY IS QUITE ANOTHER. AND WE THINK THAT THE
17 POLICIES ARE IRRELEVANT TO THIS PARTICULAR CASE, GIVEN THE
18 ISSUES BEING LITIGATED.
19 TWO, IT'S 403 PROBLEMATIC BECAUSE IT TENDS TO SUGGEST
20 THAT SOMEHOW A VIOLATION OF HOSPITAL POLICY IS SOMEHOW
21 RELEVANT TO A VIOLATION OF STATE LAW.
22 THIRD OF ALL, IT'S AN EMPLOYMENT ISSUE, IF ANYTHING,
23 BETWEEN THE HOSPITAL AND THE DOCTOR. IN OTHER WORDS, IF
24 THERE'S A -- IF THERE'S A VIOLATION OF HOSPITAL POLICIES,
25 IT'S AN EMPLOYMENT ISSUE BETWEEN THE DOCTOR AND THE
310
1 HOSPITAL. AND I'LL TELL YOU, THERE WAS NO DISCIPLINE THAT
2 WAS EVER TAKEN AGAINST DR. WEITZEL FOR THIS PARTICULAR
3 ISSUE, OR ANY ISSUE FOR THAT MATTER.
4 FINALLY, IT SEEMS TO ME IN A CRIMINAL CASE, FIRST
5 DEGREE MURDER, WE OUGHT TO HAVE FOUNDATIONAL EVIDENCE THAT
6 HE EVEN KNEW ABOUT THIS POLICY, NOT JUST THAT WE IMPUTE IT
7 TO HIM, AND THAT SOMEHOW IT HAD SOME RELEVANCE TO WHAT HE
8 DID AT THE TIME.
9 AND I THINK THE COMBINATION OF ALL THESE FACTORS --
10 BECAUSE THE ARGUMENT'S GOING TO BE -- AND THIS IS THE
11 ARGUMENT. HE VIOLATED THE POLICY, EVEN THOUGH THE POLICY IS
12 MORE RESTRICTIVE THAN STATE LAW AND EVEN THOUGH THE POLICY
13 DOESN'T COMPLY WITH STATE LAW, THEY'RE GOING TO SAY HE
14 VIOLATED THE POLICY; THEREFORE, IT'S SOMEHOW PROBATIVE OF
15 WHAT HE DID AT THE TIME.
16 AND I WOULD SUGGEST IT'S NOT PROBATIVE, (A); AND (B),
17 IN THIS KIND OF CASE IT'S CERTAINLY NOT RELEVANT; AND (C),
18 WE'RE GOING TO CONFUSE THE JURY BECAUSE THERE MAY VERY WELL
19 BE AT THE END JURY INSTRUCTIONS PURSUANT TO STATE LAW ON
20 SOME OF THESE VERY ISSUES WHICH THEN WILL BE INCONSISTENT,
21 QUITE FRANKLY, WITH THE HOSPITAL POLICY.
22 I -- I JUST DON'T SEE HOW IT'S PROBATIVE OF ANY FACT IN
23 THIS CASE.
24 THE COURT: OKAY. MR. WILSON?
25 MR. WILSON: YES, YOUR HONOR. FIRST OF ALL, THE
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1 FACTS ARE GOING TO DEMONSTRATE THAT THE DEFENDANT IS A
2 PHYSICIAN EMPLOYED AT THE HOSPITAL.
3 THE COURT: UH-HUH.
4 MR. WILSON: AND THAT'S WHY WE WERE GETTING INTO
5 THE CREDENTIALING AND PRIVILEGE -- PRIVILEGES ASPECT OF --
6 OF THIS PARTICULAR CASE. AS PART OF THAT PROCESS, HE'S
7 REQUIRED TO ADHERE TO THE POLICIES OF THE HOSPITAL.
8 THE DEFENDANT'S CONDUCT, IN NOT ADHERING TO THE
9 POLICIES OF THE HOSPITAL, EVEN IF THEY ARE MORE STRINGENT
10 THAN STATE LAW, I THINK, YOUR HONOR, IS EVIDENCE THAT IS
11 RELEVANT TO THESE PROCEEDINGS, PARTICULARLY WHERE HE'S
12 ASSERTING A DEFENSE UNDER THE CODE SECTION 75-2-114. THAT
13 LAW PROVIDES THAT HIS CRIMINAL AND CIVIL ACTS -- HE WILL
14 NOT -- HE WILL NOT BE LIABLE FOR THOSE IF ACTS ARE DONE IN
15 GOOD FAITH.
16 THE FACT THAT YOU HAVE A HOSPITAL POLICY, I THINK IS --
17 IS RELEVANT TO HIS GOOD FAITH IN HOW HE CONDUCTED HIMSELF
18 IN -- IN TREATING THESE PATIENTS.
19 FURTHERMORE, IT GOES ON TO INDICATE IN -- IN THAT
20 PARTICULAR SECTION OF THE CODE, OR THE LATER SECTION OF THE
21 CODE, THAT NOTHING IN THIS PART MAY BE CONSTRUED TO CONDONE,
22 AUTHORIZE, OR UPHOLD MERCY KILLING, EUTHANASIA, OR
23 SUICIDE -- I DON'T KNOW WHETHER THAT'S A MISPRINT.
24 SO WHAT -- WHAT WE HAVE HERE IS WE HAVE A HOMICIDE THAT
25 WE'RE ALLEGING TOOK PLACE. ANY EVIDENCE THAT RELATES TO HIS
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1 CONDUCT, WHETHER IT ADHERES TO THE POLICY OR WHETHER IT
2 ADHERES TO THE STATE LAW, IS RELEVANT EVIDENCE AS TO HOW HE
3 ACTED IN GOOD FAITH OR NOT IN GOOD FAITH.
4 I ALSO THINK, YOUR HONOR, THAT THE -- THE OTHER SIDE IS
5 OBVIOUSLY NOT FORECLOSED FROM BRINGING IN EVIDENCE AND
6 ARGUING THE CASE IN -- IN RESPECT TO WHAT THE STATE LAW
7 SAYS. WHETHER HE ADHERED TO THE -- TO THE STATE LAW, I
8 THINK, OR WHETHER HE ADHERED TO THE POLICY, OBVIOUSLY IS A
9 QUESTION OF FACT FOR -- FOR THE -- FOR THE TRYER OF FACT.
10 AND IT GOES TO THE WEIGHT OF THE EVIDENCE, NOT -- NOT TO THE
11 ADMISSIBILITY OF THE EVIDENCE.
12 THE COURT: OKAY. WELL, HOW DOES A VIOLATION OF A
13 HOSPITAL POLICY THAT VIOLATES STATE LAW OR IS MORE STRINGENT
14 THAN STATE LAW, HOW IS THAT RELEVANT TO EITHER THE FACT THAT
15 DR. WEITZEL INTENTIONALLY KILLED THESE PEOPLE, KNOWINGLY
16 KILLED THESE PEOPLE, OR CONVICTED -- OR WAS -- EXERCISED
17 DEPRAVED INDIFFERENCE, WHICH THE CASE LAW STATES AND WHICH
18 THE JURY INSTRUCTION THAT I WILL LIKELY GIVE STATES: TO
19 CONVICT OF DEPRAVED INDIFFERENCE, MURDER, THE JURY MUST FIND
20 ONE, THAT THE DEFENDANT ACTED KNOWINGLY; TWO, IN CREATING A
21 GRAVE RISK OF DEATH; THREE, THAT THE DEFENDANT KNEW THE RISK
22 OF DEATH WAS GRAVE; FOUR, WHICH MEANS A HIGHLY LIKELY
23 PROBABILITY OF DEATH; AND FIVE, THAT THE CONDUCT EVIDENCED
24 AN UTTER CALLOUSNESS AND INDIFFERENCE TOWARD HUMAN LIFE.
25 HOW DOES VIOLATING THE POLICY THAT CONFLICTS WITH STATE
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1 LAW SHOW EITHER INTENTIONAL, KNOWING, OR DEPRAVED
2 INDIFFERENCE?
3 MR. WILSON: LET ME -- LET ME PUT IT THIS WAY, YOUR
4 HONOR. I DON'T KNOW AS IT'S THE POLICY SO MUCH AS IT IS THE
5 CONDUCT. BUT THE POLICY PUTS HIM ON NOTICE THAT HE HAS A
6 DUTY AND A STANDARD OF CARE TO ADHERE TO IN THE TREATING OF
7 THESE PATIENTS. THE POLICY SPECIFICALLY PROVIDES --
8 THE COURT: WELL, ON THAT ISSUE, IS THERE GOING TO
9 BE ANY EVIDENCE BY SHEILA HEWARD THAT DR. WEITZEL WAS PUT ON
10 NOTICE OF THIS POLICY?
11 MR. WILSON: NO. THE ONLY REASON I PUT SHEILA
12 HEWARD ON WAS JUST TO INTRODUCE THE -- THE POLICY INTO
13 EVIDENCE, AS FAR AS THAT GOES.
14 THE COURT: OKAY. BUT IS THERE GOING TO BE ANYBODY
15 WHO'S GOING TO TESTIFY THAT DR. WEITZEL WAS MADE AWARE OF
16 THIS POLICY WHEN HE CAME TO WORK THERE?
17 MR. WILSON: I DON'T KNOW AS WE HAVE TO -- TO PUT
18 THAT KIND OF EVIDENCE ON. I THINK WHAT WE -- WHAT WE CAN
19 SHOW BY THE EVIDENCE IS THAT HE DID NOT GET ANOTHER
20 PHYSICIAN TO CERTIFY THAT THIS INDIVIDUAL WAS TERMINAL.
21 THAT'S PART OF THE HOSPITAL POLICY. IT REQUIRES TWO
22 PHYSICIANS, INCLUDING THE ATTENDING PHYSICIAN, TO CERTIFY
23 THAT THIS INDIVIDUAL IS TERMINAL BEFORE YOU IMPLEMENT THE
24 DIRECTIVES, THE ADVANCE DIRECTIVES, WHICHEVER THEY MAY BE,
25 THE TREATMENT PROGRAM OR WHATEVER.
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1 FURTHERMORE, YOU HAVE -- YOU HAVE IN THE HOSPITAL
2 RECORDS AND A POLICY THAT DEALS WITH DO NOT RESUSCITATE.
3 THOSE THINGS HAVE TO BE PART OF THE MEDICAL RECORD AND THEY
4 HAVE TO BE IN -- AND THEY ARE PART OF THE EXHIBIT THAT WE'VE
5 ALREADY STIPULATED TO.
6 SO I THINK THERE -- THERE'S ALL KINDS OF TIE-INS AS TO
7 THE RELEVANCY FOR THIS PARTICULAR PIECE OF EVIDENCE TO COME
8 IN BECAUSE IT'S GOING TO -- IT'S GOING TO PLAY A PART AT A
9 LATER TIME, PARTICULARLY IN -- IN DEVELOPING THE EVIDENCE AS
10 IT RELATES TO WHAT WENT ON WITH THESE FAMILY MEMBERS, WHAT
11 WAS THE PHYSICIAN'S DUTY AND RESPONSIBILITY TO ADVISE THEM,
12 INFORMED CONSENT. THERE'S ALSO THE ISSUES AS IT RELATES TO
13 HIS DEFENSE IN TERMS OF -- OF -- EXCUSE ME, YOUR HONOR.
14 COUNSEL JUST HANDED ME A COPY OF -- OF AN EXHIBIT THAT WE
15 WILL BE PUTTING INTO EVIDENCE.
16 THE COURT: WHAT NUMBER IS IT?
17 MR. WILSON: WELL, I HAVEN'T -- WE HAVEN'T NUMBERED
18 IT AS YET.
19 MR. MAJOR: YOUR HONOR, IT'S THE CONTRACT, I THINK,
20 THAT MR. STIRBA HAD INTRODUCED EARLIER.
21 THE COURT: D-1?
22 MR. WILSON: OH, EXCUSE ME. IT WOULD BE DEFENSE
23 EXHIBIT NUMBER --
24 THE COURT: WELL, D-1 IS THE CONTRACT, I BELIEVE,
25 BETWEEN HORIZON AND DAVIS HOSPITAL.
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1 MR. WILSON: IT'S THE CONTRACT BETWEEN DR. WEITZEL
2 AND -- AND HORIZONS AND -- AND IT INDICATES IN THE CONTRACT
3 ITSELF: ALSO, THE PHYSICIAN AGREES TO COMPLY WITH THE
4 POLICY AND RULES AND REGULATIONS OF BOTH THE HOSPITAL AND
5 THE UNIT.
6 NOW, IF HE'S GOING TO COME UP AND SAY HEY, I DIDN'T
7 KNOW ABOUT THE POLICY, I GUESS THAT'S SOMETHING HE CAN
8 TESTIFY TO.
9 THE COURT: WELL, I GUESS THE PROBLEM THAT I'M
10 SEEING IS THAT WE'RE TALKING ABOUT A MURDER TRIAL AND -- AND
11 WE'RE CAUGHT UP -- IT SEEMS LIKE WITH THE FIRST THREE OR
12 FOUR WITNESSES ALL WE'RE TALKING ABOUT ARE PROCEDURES OF THE
13 HOSPITAL. AND IF A PERSON VIOLATES A PROCEDURE OF THE
14 HOSPITAL, IS THAT RELEVANT EVIDENCE THAT THEY HAVE COMMITTED
15 MURDER? AND IF SO, HOW DO YOU GET THERE?
16 MR. WILSON: OKAY. LET ME -- LET ME CHARACTERIZE
17 IT THIS WAY. YOU HAVE PATIENTS WHO ARE ADMITTED TO A
18 SPECIALIZED UNIT WHO ARE INCOMPETENT, FOR THE MOST PART.
19 THE COURT: RIGHT.
20 MR. WILSON: WHEN YOU LOOK AT THE ISSUE OF DEPRAVED
21 INDIFFERENCE, YOU HAVE TO LOOK AT THE -- THAT ISSUE IN THAT
22 CONTEXT. THIS IS NOT AN ORDINARY PERSON. THIS IS A PERSON
23 WHO IS EXTREMELY VULNERABLE. HE'S SUBJECT TO THE WILL AND
24 DIRECTION OF THIS PHYSICIAN.
25 NOW, THERE'S CERTAIN PROTOCOLS THAT ARE PUT INTO EFFECT
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1 IN THE HOSPITAL POLICIES THAT PROTECT THAT PATIENT. THOSE
2 PROTOCOLS ARE ALSO THERE TO PROTECT THE PHYSICIAN.
3 OUR -- OUR POSITION IS IF THE DOCTOR DOES NOT ADHERE TO
4 THOSE PROTOCOLS -- AND THAT WON'T BE THE ONLY EVIDENCE, IT'S
5 JUST ONE PART OF THE CIRCUMSTANTIAL EVIDENCE HERE THAT HE
6 DISREGARDED NOT ONLY HOSPITAL POLICIES, BUT HE DISREGARDED
7 OTHER PRACTICES IN ADMINISTERING CARE TO THESE PATIENTS AND
8 THEREBY CAUSED THEIR DEATH.
9 THE COURT: OKAY. ARE YOU GOING TO SAY THAT BY
10 VIOLATING THE POLICIES OF THE HOSPITAL THAT THAT IS EVIDENCE
11 OF DEPRAVED INDIFFERENCE UNDER THE CASE LAW OF THE STATE OF
12 UTAH?
13 MR. WILSON: I'M GOING TO SAY THAT IS ONE OF THE
14 FACTS HERE, ADDED TO OTHER FACTS, WHICH WILL DEMONSTRATE
15 DEPRAVED INDIFFERENCE. I DON'T THINK THAT FACT ALONE RISES
16 TO THAT LEVEL, BUT I DO THINK IT'S ONE OF THE FACTS THAT THE
17 JURY SHOULD HAVE THE ABILITY TO CONSIDER IN EVALUATING THE
18 TOTALITY OF THE EVIDENCE HERE.
19 THE COURT: OKAY. MR. STIRBA?
20 MR. STIRBA: WELL, AND I THINK, ONCE AGAIN, WE'RE
21 TALKING ABOUT VIOLATIONS OF STATE LAW, NOT VIOLATIONS OF
22 HOSPITAL POLICY. AND MOREOVER, QUITE FRANKLY, THAT HOSPITAL
23 POLICY, TO THE EXTENT IT VIOLATES STATE LAW, IS NOT JUST
24 RELEVANT TO DR. WEITZEL, IT'S RELEVANT TO EVERY ONE OF THOSE
25 PATIENTS WHO CAME IN WITH A WRITTEN DIRECTIVE, SOME OF WHICH
317
1 WAS PROVIDED BY THE VERY HOSPITAL IN -- IN THEIR OWN FORM.
2 AND IF THE STATE LAW DOESN'T REQUIRE WHAT THE HOSPITAL IS
3 REQUIRING, THEN IT SEEMS TO ME THAT'S -- THAT'S DOING A
4 DISSERVICE AND DEROGATION OF THE RIGHTS OF THOSE PATIENTS.
5 AND THE ISSUE IS VIOLATION OF STATE LAW, NOT HOSPITAL
6 POLICY.
7 THE OTHER THING IS, LOOK AT THE SIDE -- THE SIDE TRAILS
8 WE MAY GET INTO. WAS THAT POLICY EVER ENFORCED? WE --
9 WE'RE ENTITLED TO GET INTO THAT. WHAT -- WHAT HAPPENED WITH
10 DR. WEITZEL? YOU KNOW, THIS WHOLE THING WAS INVESTIGATED BY
11 HORIZON AND THE HOSPITAL. THEY KNEW EVERYTHING, HAD ALL THE
12 FACTS OUT ON THE TABLE, AS YOU WOULD EXPECT. NOBODY EVER
13 SAID GEE, HE VIOLATED HOSPITAL POLICY, LET'S DISCIPLINE HIM.
14 IT NEVER HAPPENED.
15 AND SO WE GET INTO ALL THESE SIDE ISSUES WHICH I THINK
16 UNDER 403 CLEARLY ARE GOING TO BE MISLEADING TO THIS JURY
17 AND REALLY DON'T GET TO THE VERY THING OF WHAT HE DID AT THE
18 TIME.
19 AND -- AND THE FINAL THING I WANT TO SAY, THE ONLY
20 INFERENCE, REASONABLE INFERENCE THAT ONE SHOULD DRAW IN THIS
21 CASE IS THE CONDUCT THAT THE PHYSICIAN ENGAGED IN WITH
22 RESPECT TO THE CARE AND TREATMENT OF THESE PATIENTS. ONCE
23 AGAIN, WHEN THE MENS REA LINES UP WITH BASICALLY THE -- THE
24 ACT, THEN YOU HAVE A CRIMINAL EVENT AND YOU -- YOU DISCERN,
25 IF YOU WILL, THE -- THE -- THE MENS REA FROM THE CONDUCT.
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1 AND THE CONDUCT WILL HOPEFULLY BE BEFORE THE JURY TO DISCERN
2 WHETHER OR NOT DEPRAVED INDIFFERENCE, INTENTIONAL OR KNOWING
3 HAS BEEN MET.
4 THE COURT: OKAY. WHAT I'M GOING TO DO IS I'M
5 GOING TO TRY TO EAT BETWEEN NOW AND 12:50 AND DECIDE THIS
6 ISSUE AND BE OUT AT 1:00, AND HAVE YOU COME BACK AT 12:50 SO
7 THAT WE CAN RESOLVE THESE QUESTIONS.
8 MR. WILSON: YOUR HONOR --
9 THE COURT: MR. WILSON?
10 MR. WILSON: -- IN RESPECT TO THE TESTIMONY OF
11 SHEILA HEWARD, THAT -- AND THAT WAS THE TESTIMONY TO HAVE
12 THE POLICY ADMITTED, IF -- YOU KNOW, WE -- WE RECEIVED THIS
13 MEMORANDUM TODAY. I SPENT SOME TIME OUT OF THE COURTROOM --
14 THE COURT: YOU WEREN'T -- YOU WEREN'T THE ONLY ONE
15 WHO RECEIVED IT TODAY. I RECEIVED IT THIS MORNING AS WELL.
16 MR. WILSON: YEAH. AND -- AND I GUESS WHAT I'M
17 SAYING, IF -- I WOULD BE MORE -- MORE THAN HAPPY TO DELAY
18 THE CALLING OF SHEILA HEWARD TO ALLOW US AN OPPORTUNITY TO
19 ADDRESS THIS MORE FULLY TO THE COURT. WE FEEL VERY STRONGLY
20 ABOUT THIS ISSUE AND FEEL THAT THIS PIECE OF EVIDENCE IS --
21 IS A CRITICAL PART OF OUR CASE. WE WANT THAT EVIDENCE IN,
22 OBVIOUSLY, AND WE DON'T THINK THAT WE'VE HAD ADEQUATE TIME
23 TO APPROPRIATELY RESPOND TO THE COURT TO POINT OUT ALL OF
24 THE ARGUMENTS THAT ARE NECESSARY HERE.
25 FURTHERMORE, YOUR HONOR, EVERY TIME WE ARGUE, WE TALK
319
1 ABOUT 403, WE TALK ABOUT 402, WE TALK ABOUT 404(B), AND
2 COUNSEL ALWAYS THROWS OUT THAT ARGUMENT ABOUT HOW WE'RE
3 GOING TO HAVE TO GO OFF ON THIS TRACK OR WE'RE GOING TO HAVE
4 TO GO OFF ON THAT TRACK. WELL, YOUR HONOR, THAT'S NOT A
5 BASIS FOR ADMITTING THE EVIDENCE. THE BASIS FOR ADMITTING
6 THE EVIDENCE OR NOT ADMITTING THE EVIDENCE IS WHETHER OR NOT
7 THERE IS -- IS PREJUDICE HERE, A SUBSTANTIAL LIKELIHOOD OF
8 PREJUDICE TO THIS INDIVIDUAL FOR PURPOSES OF -- OF THIS
9 EVIDENCE, OR IT RELATES TO THE RELEVANCY OF THE EVIDENCE.
10 AND I THINK IT'S CRITICALLY RELEVANT HERE, AND WHETHER
11 WE GO OFF ON TRACKS, AS THEY WANT TO DEFEND, THAT'S FINE,
12 YOUR HONOR. THAT'S WHAT THIS TRIAL IS ALL ABOUT. AND I
13 DON'T THINK THAT WE SHOULD -- THAT WE SHOULD SAY, OKAY,
14 WE'RE GOING TO MAKE OUR DECISIONS ON EVIDENTIARY MATTERS
15 BASED UPON WHETHER OR NOT THIS IS GOING TO PRODUCE SOME KIND
16 OF HARDSHIP ON THE -- ON THE DEFENDANT'S PART IN -- IN
17 DEFENDING AGAINST IT.
18 THE COURT: WELL, I -- I THINK ONE OF THE ISSUES
19 THAT I TRIED TO TELL YOU -- MAYBE BOTH SIDES TWO OR THREE
20 TIMES BEFORE THE TRIAL IS THAT IF YOU CAN ANTICIPATE ISSUES
21 THAT ARE GOING TO COME UP, BRING THEM UP. I SUGGESTED -- I
22 SEE NOTHING WRONG WITH SOMEBODY GIVING ME A MOTION. YOU
23 GAVE ME A MOTION TO SUPPRESS. I'D RATHER HAVE SOMETHING
24 WRITTEN THAT I CAN READ BEFORE WE ARGUE.
25 THE WORST THING THAT WE CAN DO IN THIS CASE IS HAVE A
320
1 MAJOR ISSUE BREAK OPEN WHILE A WITNESS IS ON THE STAND, THAT
2 WE HAVE TO COME UP TO THE BENCH, WE HAVE TO LET THE JURY GO
3 OUT. YOU KNOW, WE CAN TELL THE JURY, OKAY, YOU'VE GOT A
4 FOUR HOUR LUNCH TODAY, BUT I THINK IT'S BETTER TO KNOW UP
5 FRONT. AND LIKE I TELL YOU, I WILL BE HERE AT 7:00 IN THE
6 MORNING. I WILL BE HERE LATE AT NIGHT. I WILL BE HERE ALL
7 THROUGH THE LUNCH HOUR. I BRING MY LUNCH EVERY DAY JUST SO
8 I CAN HANDLE THESE THINGS. I'LL BE HERE 12 TO 14 HOURS, IF
9 I HAVE TO, BUT THE POINT I WANT TO DO IS I WANT TO BE
10 PREPARED.
11 AND I WILL USE AN ANALOGY OF BASEBALL RIGHT NOW IN
12 RELATION TO WHAT YOU JUST SAID, MR. WILSON. THE ISSUE IN
13 THE CASE, JUST LIKE AN ISSUE OF AN EMPIRE IN A BASEBALL
14 GAME, IS WHEN A BALL GOES OVER THE PLATE, THERE IS A RULE
15 THAT SAYS WHAT THE STRIKE ZONE IS. AND IT'S NOT JUST THE
16 EMPIRE'S DECISION OF WHAT HE THINKS SHOULD BE THE STRIKE
17 ZONE, AND THAT'S WHAT THE RULES OF EVIDENCE ARE. THE RULES
18 OF EVIDENCE ARE -- THEY'RE RULES THAT I HAVE TO FOLLOW. AND
19 EVERYBODY CAN SAY, DOES IT COME WITHIN THESE RULES OR DOES
20 IT NOT COME WITHIN THESE RULES.
21 AND IN THE BIGGER CONTEXT, RELEVANCY IS DETERMINED IN
22 WHAT ARE WE DOING IN THIS CASE. THIS CASE IS A MURDER CASE.
23 AND ALL OF IT IS RELEVANT TO WHAT -- THE EVIDENCE HAS TO BE
24 RELEVANT TO THE ISSUES IN THIS CASE.
25 AND I'M HAPPY TO HAVE MORE TIME, AND IF YOU'RE TELLING
321
1 ME THAT YOU'RE NOT GOING TO CALL THAT WITNESS THAT THIS
2 ISSUE BECOMES IMPORTANT AT AND WE'RE NOT GOING TO DISCUSS
3 THAT BEFORE THAT GOES, I DON'T HAVE ANY PROBLEM HAVING YOU,
4 IF YOU WANT TO HAVE A WRITTEN RESPONSE TO THAT AND WE HAVE
5 FURTHER ARGUMENT. I'M MORE THAN HAPPY TO DO THAT.
6 MR. WILSON: I WOULD LIKE THAT OPPORTUNITY.
7 THE COURT: THE CONCERN I HAD WAS THAT YOU WERE
8 GOING TO CALL THAT WITNESS. WE HAD THE ISSUE AND WE HAD TO
9 DECIDE THE ISSUE BEFORE THE WITNESS TESTIFIES. I HAVE TO
10 RULE.
11 SO IF YOU WANT TO HAVE THAT -- IF YOU WANT TO HAVE
12 SOMETHING TO ME IN WRITING AND YOU CAN GET IT EARLY -- YOU
13 KNOW, LIKE -- THE ONLY WAY I'M GOING TO DO THIS, I CAN'T
14 KEEP HAVING THE -- YOU KNOW, IF IN THE FIRST TWO DAYS OF
15 TRIAL WE END AT 3:30 ONE DAY AND THEN THE NEXT DAY WE'VE
16 TAKEN THE JURY OUT FOR A HALF HOUR AND THAT'S GOING TO BE A
17 PATTERN, PRETTY SOON THEY'RE GOING TO SAY, YOU KNOW, THEY
18 DON'T CARE A LOT ABOUT OUR TIME.
19 AND I'M ABSOLUTELY COMMITTED. I KNOW IT'S HARD FOR ALL
20 COUNSEL AND IT'S HARD FOR THE COURT REPORTER, IT'S HARD FOR
21 THE CLERKS AND EVERYONE ELSE, BUT I'M COMMITTED WHEN THE
22 JURY IS HERE, THEY'RE GOING TO HEAR TESTIMONY. WE'RE NOT
23 GOING TO TAKE BREAKS FOR THIS. WE'RE GOING TO HEAR BREAKS
24 (SIC) IF WE HAVE TO HEAR THEM AT 7:00 IN THE MORNING TILL
25 8:30, WE'LL HEAR THEM. IF WE HAVE TO HEAR THEM BETWEEN
322
1 12:00 AND 1:30, WE'LL HEAR THEM. IF WE HAVE TO HEAR THEM
2 BETWEEN 5:00 TO MIDNIGHT, I'LL DO IT. BUT I'M NOT GOING TO
3 HAVE THIS JURY IN AND OUT, IN AND OUT, IN AND OUT.
4 SO I'M GIVING FAIR WARNING TO EVERYBODY, BOTH SIDES, IF
5 YOU HAVE THESE ISSUES THAT YOU CAN ANTICIPATE -- AND I --
6 AND, ALSO, YOU NEED REALIZE, I'M OPERATING IN A VACUUM
7 BECAUSE WHAT -- I DON'T KNOW WHY YOU'RE INTRODUCING
8 SOMETHING. YOU HAVEN'T RAISED IT TO MY ATTENTION. SO I GET
9 THE QUESTION AND I'M LOOKING AT IT HERE AND I GET AN
10 OBJECTION AND THEN I HAVE TO MAKE A DECISION, STRIKE OR A
11 BALL. YOU GOT TO CALL IT.
12 AND SO I EITHER NEED YOUR HELP IN ADVANCE, BOTH OF
13 YOU -- I'VE GOT TO HAVE THE HELP -- IF YOU WANT TO EDUCATE
14 ME ABOUT SOMETHING, EDUCATE ME IN ADVANCE BECAUSE IF IT JUST
15 COMES ON AND YOU SAY HERE'S THE POLICY, OBJECTION, YOU KNOW,
16 WE'RE GOING TO HAVE TO RULE.
17 AND ANOTHER THING I'M GOING TO SAY IS THAT IT IS
18 INAPPROPRIATE WHEN AN OBJECTION IS MADE, I DON'T WANT
19 DISCUSSIONS BETWEEN ATTORNEYS. YOU MAKE YOUR OBJECTIONS.
20 IF YOU SAY THAT WE HAVE TO DISCUSS THIS OFF THE RECORD,
21 FINE, WE'LL DO IT. BUT I WOULD MUCH RATHER YOU ANTICIPATE
22 THAT BEFOREHAND.
23 IF YOU ARE GOING TO -- I THINK RIGHT NOW WE UNDERSTAND
24 THAT CERTAIN THINGS WE'RE GOING TO HAVE FIGHTS OVER. SO IF
25 YOU CAN ANTICIPATE THOSE, I THINK YOU EITHER OUGHT TO GO TO
323
1 THE OTHER SIDE AND SAY -- JUST LIKE YOU'VE SAID TODAY, WE
2 WANT TO ASK THIS OTHER QUESTION OF THE DOCTOR ABOUT THIS
3 CONVERSATION THAT I WANT YOU TO DISCUSS DURING THE -- THE
4 NOON BREAK, THOSE ARE THE TYPES OF THINGS THAT WE NEED TO
5 DISCUSS. OTHERWISE, THE JURY IS GOING TO BE UP AND DOWN,
6 THEY'RE GOING TO BE SITTING MORE TIMES IN THE JURY ROOM THAN
7 THEY ARE GOING TO BE IN THE COURTROOM.
8 AND SO I WANT TO JUST HEAR THOSE THINGS. EVERYBODY
9 UNDERSTANDS THAT THIS IS A VERY IMPORTANT CASE. AND NOBODY,
10 YOU KNOW, LIKE -- FOR EXAMPLE, I CAN JUST TELL YOU THAT IN
11 THE LAST BIG TRIAL WE HAD IN DAVIS COUNTY IT WAS HERE FOR
12 THREE WEEKS. THEY HAD TWO MOTIONS IN LIMINE BEFORE THE CASE
13 STARTED. WE HAD 25. BY MY COUNT, SO FAR I'VE HAD TO DO
14 ABOUT EIGHT MAJOR EVIDENCE RULINGS IN THIS CASE IN THE FIRST
15 TWO DAYS -- FIRST DAY AND A HALF OF TESTIMONY. FIRST DAY.
16 FRIDAY AFTERNOON AND MONDAY.
17 I EXPECT THAT'S WHAT WE'RE GOING TO HAVE FOR THE REST
18 OF TRIAL. ALL I'M SAYING IS, GIVE ME HELP. LET ME KNOW IN
19 WRITING A RULE OF EVIDENCE, A CASE FROM THE UTAH SUPREME
20 COURT OR THE COURT OF APPEALS, IF THEY'RE APPLICABLE, THAT
21 GIVES ME SOME DIRECTION BECAUSE WE'RE ALL DOING THIS, YOU
22 KNOW, TO ARRIVE AT THE TRUTH. YOU KNOW, WE WANT ALL
23 EVIDENCE THAT'S RELEVANT TO COME IN. IF THERE'S RELEVANT
24 EVIDENCE THAT IS HIGHLY PREJUDICIAL, THE RULE SAYS WHAT HAS
25 TO HAPPEN ON THAT.
324
1 SO WHAT I WANT YOU TO DO, I KNOW YOU'RE NOT GETTING ANY
2 LONGER LUNCH THAN I'M GETTING BECAUSE I HAVE TO READ ALL
3 THIS STUFF, BUT WHAT I'M GOING TO DO IS IF YOU WANT TO GIVE
4 ME SOMETHING IN WRITING AND YOU WANT TO ARGUE THIS, YOU
5 KNOW, AT 8:00 IN THE MORNING OR 7:30 TOMORROW MORNING, LET
6 ME KNOW WHEN WE COME BACK. BUT WE HAVE TO RESOLVE -- WE
7 STILL HAVE TO RESOLVE THAT DISCUSSION -- CONVERSATION BEFORE
8 THE JURY COMES BACK AT TEN TILL 1:00. I MEAN, THE JURY'S
9 COMING BACK AT 1:00. WE NEED TO RESOLVE THAT BEFORE THEN.
10 (WHEREUPON, THE MORNING SESSION ENDS.)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
325
1 (WHEREUPON, THE AFTERNOON SESSION BEGINS.)
2 THE COURT: OKAY. WE ARE BACK ON THE RECORD. THE
3 JURY IS NOT PRESENT. WHEN WE TOOK OUR BREAK, THERE WERE
4 SOME LEGAL ISSUES THAT WE WERE GOING TO DISCUSS. ONE OF
5 THOSE LEGAL ISSUES I THINK WE RESOLVED WAS THE QUESTION THAT
6 THE WITNESS THAT WAS ON THE STAND WHEN ASKED TO ANSWER THE
7 QUESTION ABOUT HAVING PRIVILEGES TO BE ABLE TO WORK AT THE
8 HOSPITAL. THE NEXT ISSUE WE HAVE WAS THE ISSUE OF A
9 CONVERSATION BETWEEN DR. JENSEN AND DR. WEITZEL REGARDING
10 OVERMEDICATION. HAVE YOU HAD AN OPPORTUNITY TO HEAR MORE
11 CLEARLY WHAT THAT IS?
12 MR. STIRBA: YOUR HONOR, I HAVE IN A SENSE. WE
13 WERE PROVIDED AT THE BREAK AT ABOUT 12:15 A SIX-PAGE
14 INTERVIEW SUMMARY WHICH APPARENTLY TOOK PLACE ON 5/13 OF
15 THIS YEAR. AND IN THAT INTERVIEW SUMMARY, I'LL JUST READ
16 IT. IT'S, I ASKED DR. JENSEN IF HE HAD EVER BEEN ASKED OR
17 ASSIGNED TO REVIEW THE WAY DR. WEITZEL WAS TREATING
18 PATIENTS. DR. JENSEN SAID YES. HE SAID THAT WAS BEFORE THE
19 DEATHS OCCURRED. DR. JENSEN STATED THAT HE BELIEVED THAT
20 HORIZON WAS THE ONE THAT HAD ASKED FOR THE REVIEW. I ASKED
21 DR. JENSEN IF THIS WAS WHEN HE HAD TOLD WEITZEL NOT TO HIT
22 THE PATIENTS WITH SO MANY MEDICATIONS RIGHT UP FRONT.
23 JENSEN SAID THAT HE DID REVIEW CHARTS OF SEVERAL PATIENTS
24 AND THEN HE SPOKE WITH WEITZEL ABOUT OVERMEDICATING
25 PATIENTS. DR. JENSEN STATED HE DID NOT REMEMBER IF HE WROTE
326
1 ANY REPORT OF THIS REVIEW.
2 WE'VE NEVER SEEN A REPORT. DON'T BELIEVE A REPORT
3 EXISTS. THE OBJECTION I WOULD MAKE WOULD BE IN THE SAME
4 VEIN. WE FILED A RENEWED MOTION FOR DISCOVERY IN THIS CASE.
5 WE FILED A MOTION FOR DISCOVERY IN THIS CASE. WE
6 SPECIFICALLY ASKED FOR ANY INTERVIEW SUMMARIES CONCERNING
7 WITNESSES THAT WERE GONNA BE CALLED IN THIS TRIAL. I DID
8 NOT GET THIS UNTIL 12:15. NEVER SEEN IT BEFORE UNTIL THAT
9 POINT. MOREOVER, I THINK WE ALSO FILED A RULE 404(B) MOTION
10 ESSENTIALLY THAT THE COURT HAS PREVIOUSLY ALLUDED TO. THIS
11 SEEMS TO ME IN THAT CATEGORY. IF WE'RE GONNA BE TALKING
12 ABOUT PRIOR CONDUCT, WHICH APPARENTLY THIS IS, AND IT'S IN
13 THE NATURE OF A 404(B), NO ADVANCE NOTICE OF THIS, NONE, AND
14 I JUST THINK IT'S UNFAIR SURPRISE. IT'S INAPPROPRIATE. AND
15 I WOULD RESPECTFULLY ASK THE COURT TO DISALLOW ANY EVIDENCE
16 IN THIS REGARD.
17 MOREOVER, YOUR HONOR, IT'S TOTALLY IRRELEVANT
18 ADDITIONALLY BECAUSE, WELL, ONCE AGAIN, WE'RE NOT TALKING
19 ABOUT THE FIVE PATIENTS IN THIS CASE. WE'RE TALKING ABOUT
20 SOME POINT IN TIME THERE WAS A CONVERSATION ABOUT
21 OVERMEDICATED. WE DON'T KNOW WHAT THAT CONVERSATION WAS
22 ABOUT. IT CERTAINLY WASN'T ABOUT THESE PATIENTS. IT'S
23 IRRELEVANT. AND AS I INDICATE, THIS IS -- THIS IS -- THIS
24 IS AN ART SOMEWHAT, NOT A SCIENCE IN TERMS OF MEDICATING
25 THESE VERY DIFFICULT ELDERLY PATIENTS. AND THE FACT THAT
327
1 THERE WAS SUCH A CONVERSATION IS OF NO PROBATIVE MOMENT
2 INSOFAR AS THE JURY IS CONCERNED, SO I'D RENEW MY MOTION --
3 MY OBJECTION, RATHER.
4 THE COURT: OKAY. MR. WILSON.
5 MR. WILSON: YES, YOUR HONOR. FIRST OF ALL,
6 MR. STIRBA DID IN FACT REQUEST A COPY OF THE STATEMENT. MY
7 INFORMATION IN SPEAKING WITH MR. MAJOR WAS IS THAT WE HAD
8 SUPPLIED THESE PARTICULAR STATEMENTS TO THEIR OFFICE SOME
9 TIME AGO.
10 MR. STIRBA: YOUR HONOR, IF I MAY JUST INTERRUPT
11 JUST BRIEFLY. I'M AN OFFICER OF THE COURT. I DON'T HAVE TO
12 RELY ON INFORMATION. WE'VE NEVER SEEN IT UNTIL 12:15.
13 MR. WILSON: I'M NOT SAYING THAT HE DIDN'T SEE
14 UNTIL 12:15. I'M SAYING THAT -- THAT WE SUPPLIED IT AT AN
15 EARLIER DATE. WHETHER OR NOT YOU SEEN THE DOCUMENT I GUESS,
16 MR. STIRBA, IS THE QUESTION. WE CAN'T ACCOUNT FOR -- ALL I
17 CAN ACCOUNT FOR IS THAT WE'VE HAD A POLICY DURING THROUGHOUT
18 THIS TRIAL, ANY ADDITIONAL INTERVIEWS THAT ARE CONDUCTED BY
19 OFFICER MORRISON, REGARDLESS OF WHETHER THEY'RE GENERATED AS
20 FAR AS WHAT WE WOULD CALL ATTORNEY WORK PRODUCT, WE HAVE
21 BEEN SHARING THAT INFORMATION WITH COUNSEL. MR. MAJORS
22 ADVISES ME THAT THIS DOCUMENT ALONG WITH THE OTHERS WERE
23 SUPPLIED SHORTLY AFTER WE GOT THEM, AFTER THEY WERE
24 DICTATED. SO THAT'S -- THAT'S MY RESPONSE IN RESPECT TO
25 THAT PART OF THE MOTION TO PROHIBIT THIS INDIVIDUAL FROM
328
1 TESTIFYING IN THIS MATTER.
2 AS THE COURT WILL RECALL ON THE 404(B) LIMITING
3 INSTRUCTION WHEN THEY WERE TRYING TO ADOPT THE FEDERAL RULE,
4 THE COURT DENIED THAT MOTION BUT DID INDICATE -- AND AS I
5 INDICATED TO THE COURT, THIS WAS SOMETHING THAT WE DID NOT
6 ASCERTAIN WOULD BE A PROBLEM AS IT RELATED TO 404(B). WE
7 FELT IT WAS PATTERN EVIDENCE, IT WAS A CONTINUING CONDUCT ON
8 HIS PART IN TERMS OF OVERMEDICATING PATIENTS --
9 THE COURT: WELL, THAT IS 404. PATTERN OR
10 CONSISTENT CHARACTER WITH SOMEHOW SOMEBODY DID SOMETHING
11 BEFORE SO THAT'S -- IT'S EVIDENCE THAT THEY DID SOMETHING
12 LATER IS EXACTLY WHAT RULE --
13 MR. WILSON: I WOULD DIFFER, YOUR HONOR. IT'S A
14 PATTERN OF MEDICAL PRACTICE AND I THINK IT'S BEYOND --
15 THE COURT: WELL, WHAT RULE OF EVIDENCE IS PATTERN
16 OF MEDICAL PRACTICE? I MEAN I HAVE TO FIT THIS IN ONE OF
17 THE RULES OF EVIDENCE, AND THE ONLY THING I CAN SEE IS 404.
18 BECAUSE YOU'RE TALKING ABOUT INTENT, YOU SAID --
19 MR. WILSON: WELL, AND MAYBE -- MAYBE IT FALLS
20 WITHIN THE FRAMEWORK OF THAT PARTICULAR DOCUMENT, YOUR
21 HONOR, FROM THAT STANDPOINT -- OR PARTICULAR RULE, BUT IN
22 ANY EVENT, FOR US TO BE TRYING TO CHARACTERIZE EVERY SINGLE
23 PIECE OF EVIDENCE -- AND THAT WAS THE REASON THAT WE -- THE
24 RULE -- OR THE MOTION WAS DENIED IN THE FIRST PLACE IS THERE
25 WAS NO ABILITY TO EVALUATE THE MASSIVE AMOUNT OF EVIDENCE
329
1 ALL THE TIME AND SAY, OKAY, THIS IS -- THIS IS 404(B), THIS
2 IS NOT 404(B). YOU KNOW, FROM THAT STANDPOINT. SO I WOULD
3 JUST MAKE THAT POINT TO THE COURT.
4 AS TO THE -- AS TO THE RULE ITSELF, IT TALKS ABOUT IN
5 404(B) EVIDENCE OR ACTS IS NOT ADMISSIBLE TO PROVE THE
6 CHARACTER. WELL, WE'RE NOT OFFERING IT TO PROVE THE
7 CHARACTER. WE'RE OFFERING IT TO SHOW ACTION IN CONFORMITY
8 WITH PROOF, MOTIVE, OPPORTUNITY, INTENT, PREPARATION, PLAN,
9 KNOWLEDGE. THOSE WERE ITEMS -- IF HE IS -- IS IN A POSITION
10 THAT HE'S OVERMEDICATING OTHER PATIENTS, WE THINK THAT'S
11 EVIDENCE THAT HE CONTINUED IN THAT PRACTICE.
12 THE COURT: OKAY. WELL, WHAT IS THE CAUSAL LINK
13 THAT ANY OVERMEDICATION THAT DR. JENSEN TALKED TO
14 DR. WEITZEL ABOUT IS SOMEHOW CAUSALLY LINKED TO HIM
15 OVERMEDICATING AND KILLING THESE FIVE PATIENTS?
16 MR. WILSON: I THINK IT GOES TO SHOW, YOUR HONOR,
17 KNOWLEDGE. SPECIFICALLY, THAT THE FACT THAT HE WAS
18 MEDICATING PATIENTS BACK IN -- IN EARLIER -- BEFORE THESE
19 PATIENTS DIED IN OVERMEDICATING THEM I THINK GOES TO SHOW
20 HIS KNOWLEDGE OF THE FACT HE'D BEEN WARNED ABOUT THE FACT
21 THAT HE SHOULDN'T BLAST THESE PATIENTS.
22 NOW, COUNSEL DIDN'T ALLUDE TO THE OTHER STATEMENT
23 BECAUSE THE OTHER STATEMENT THAT'S CONTAINED THAT
24 MR. MORRISON HAD REFERENCE TO IS CONTAINED ON PAGE 2 OF THAT
25 DOCUMENT. AND DR. JENSEN STATED HE DID HAVE A CONVERSATION
330
1 WITH DR. WEITZEL WHERE HE TOLD DR. WEITZEL THAT YOU DON'T
2 JUST BLAST EVERYONE WITH SO MUCH STUFF. THEY MAY NEED THAT,
3 BUT SOMETIMES YOU JUST -- JUST A LITTLE BIT OF PATIENCE AND
4 A LITTLE BIT OF TIME IS WHAT YOU NEED WITH THESE PEOPLE.
5 I WOULD SUBMIT IT, YOUR HONOR.
6 THE COURT: OKAY. THE ISSUE IN THIS CASE -- OR ONE
7 OF THE MAJOR ISSUES IN THIS CASE AS I UNDERSTAND IT IS
8 WHETHER OR NOT THE DEFENDANT MURDERED THESE FIVE PATIENTS.
9 RULE 404 OF THE RULES OF EVIDENCE TALKS ABOUT EVIDENCE OF A
10 PERSON'S CHARACTER AND RELATING THAT TO PROVING ACTION IN
11 CONFORMITY THEREWITH. THERE ARE EXCEPTIONS AND THE
12 EXCEPTIONS GO TO SHOW NOT THAT THE PERSON ACTED IN
13 CONFORMITY WITH THE CHARACTER, BUT THEY GO TO SHOW SUCH
14 THINGS AS MR. WILSON ALLUDED TO, KNOWLEDGE, INTENT,
15 PREPARATION, PLAN. NOW, THAT IS AN EXCEPTION THAT ALLOWS
16 THIS EVIDENCE IN. THE LAST WORDS OF RULE 404 SAYS THAT IF
17 YOU GET TO THAT POINT WHERE ONE OF THESE EXCEPTIONS APPLY
18 AND THERE IS SOME SORT OF LINK TO THE ACT IN QUESTION,
19 THEN -- LAST SENTENCE SAYS, IN OTHER WORDS, EVIDENCE OFFERED
20 UNDER THIS RULE IS ADMISSIBLE IF IT IS RELEVANT FOR
21 NONCHARACTER PURPOSE AND MEETS THE REQUIREMENTS OF RULES 402
22 AND 403. SO BY ITS VERY TERMS, 404, IF YOU GET TO A CERTAIN
23 POINT IN 404, THEN YOU TO HAVE GO TO RULE 403. AND 403 IS
24 THE RULE THAT SAYS ALTHOUGH RELEVANT, EVIDENCE MAY BE
25 EXCLUDED IF ITS PROBATIVE VALUE IS SUBSTANTIALLY OUTWEIGHED
331
1 BY THE DANGER OF UNFAIR PREJUDICE, CONFUSION OF THE ISSUES,
2 AND MISLEADING THE JURY, OR BY CONSIDERATIONS OF UNDUE
3 DELAY, WASTE OF TIME, OR NEEDLESS PRESENTATION OF CUMULATIVE
4 EVIDENCE.
5 WE ADDRESSED THIS ISSUE PRIOR TO TRIAL WHEN THERE WAS
6 AN ISSUE ABOUT SOME PORTION OF MORPHINE THAT WASN'T RELATED
7 TO THIS CASE. IT WAS RELATED TO ONE OF THE MOTIONS IN
8 LIMINE. AND THE ISSUE WAS, IS WHAT WOULD THE JURY DO IF
9 THEY HAD THAT INFORMATION. I AM VERY CONCERNED THAT IN THIS
10 CASE THAT IF THE JURY RECEIVES EVIDENCE OF WHAT HAPPENED
11 WITH OTHER PATIENTS THAT IS NOT CAUSALLY RELATED TO THIS,
12 THE FIVE PATIENTS IN THIS CASE, THAT WHAT'S GOING TO HAPPEN
13 IS NO MATTER WHAT SORT OF INSTRUCTION I GIVE TO THE JURY,
14 THAT MEMBERS OF THE JURY, YOU CAN ONLY RECEIVE THIS FOR
15 KNOWLEDGE, THAT HE HAD KNOWLEDGE, THAT THAT IS GOING TO BE
16 MISLEADING AND THAT IT WILL BE USED BY THEM, IT WILL CONFUSE
17 THEM, AND IT WILL MISLEAD THEM. AND ON THE BASIS OF THAT,
18 I'M GOING TO SUSTAIN THE OBJECTION.
19 AND I GUESS WHAT I'M GOING TO SAY, WE'RE GONNA DEFINE
20 THE STRIKE ZONE RIGHT NOW, AND THE STRIKE ZONE IS GOING TO
21 BE WHAT IS RELEVANT TO THE FIVE PATIENTS IN THIS CASE, WHAT
22 WE'RE TALKING ABOUT IN TERMS OF WHAT HAPPENED WITH THOSE
23 PATIENTS, AND NOT NECESSARILY WHAT HAPPENED IN ALL THE
24 PERIPHERY. WE'VE HAD FOUR WITNESSES, AND I'VE YET TO HEAR
25 ONE WHERE WE'RE GETTING ANY CLOSER TO THE DEATHS OF THESE
332
1 PATIENTS. SO I'M GOING TO CALL THE -- AND WE HAVE ONE OTHER
2 MOTION AND WE DON'T HAVE TIME TO DISCUSS IT NEXT, BUT WHEN
3 DO THE PARTIES WANNA HEAR THIS MOTION TO SUPPRESS?
4 MR. STIRBA: DO YOU WANNA HEAR IT TOMORROW MORNING
5 BE APPROPRIATE, YOUR HONOR?
6 THE COURT: WELL, ARE WE GONNA HAVE ANYTHING ELSE?
7 IF WE'RE GONNA HAVE TWO OR THREE MORE IN THE MORNING, I WANT
8 TO, YOU KNOW, I CAN START AT 6:00 IN THE MORNING I GUESS
9 IF --
10 MR. WILSON: WELL, WE HAVE THE MOTION TO SUPPRESS.
11 WE ALSO HAVE THE MOTION THAT WE ASKED FOR TIME TO RESPOND
12 TO, AND PERHAPS THAT COULD BE HEARD IN THE MORNING, TOO.
13 MR. STIRBA: ACTUALLY, I'M SORRY, I'D BE PERFECTLY
14 CONTENT TO ARGUE THIS AT 5:00 IF THAT'S -- IF THE COURT
15 WISHES TO --
16 THE COURT: I WOULD SAY I'D RATHER DO ONE AT 5:00
17 AND DO ONE AT 7:45 THE NEXT DAY, THE ONE THAT YOU WANTED
18 TIME TO RESPOND TO. OKAY.
19 WHY DON'T WE HAVE THE JURY COME IN.
20 OKAY. I BELIEVE, DR. JENSEN, IF YOU'D LIKE TO COME
21 BACK UP HERE PLEASE. YOU WERE STILL ON THE STAND.
22 (THE JURY ENTERS THE COURTROOM.)
23 THE COURT: OKAY. PLEASE BE SEATED. THE RECORD
24 SHOULD REFLECT THAT THE JURY ARE PRESENT. LADIES AND
25 GENTLEMEN, I'D JUST LIKE TO LET YOU KNOW THAT ALL THE
333
1 ATTORNEYS AND ME, WE WORK, YOU KNOW, WE DON'T -- WE GET TO
2 WORK THROUGH OUR LUNCHES AND WE GET TO WORK BEFORE AND AFTER
3 YOU GO HOME. SO I DON'T WANT YOU TO FEEL THAT, YOU KNOW,
4 WHEN YOU GO TO LUNCH THAT WE'RE NOT DOING ANYTHING BECAUSE
5 WE'VE BEEN DOING LOTS OF THINGS. SO APPRECIATE YOU BEING ON
6 TIME AND I REALLY DO. IT MAKES IT WORK MUCH SMOOTHER WHEN
7 YOU'RE RIGHT ON TIME AS YOU'VE BEEN, AND I VERY MUCH
8 APPRECIATE IT. MR. WILSON, WOULD YOU LIKE TO GO AHEAD?
9 MR. WILSON: THANKS YOU, YOUR HONOR.
10 WELBY JENSEN,
11 DIRECT EXAMINATION (CONT'D)
12 BY MR. WILSON:
13 Q. JUST A COUPLE OF FINAL QUESTIONS, DOCTOR. CAN YOU TELL
14 ME AT THE TIME YOU WERE EMPLOYED, WAS THERE A DICTATION
15 SYSTEM IN PLACE AT THE HOSPITAL?
16 A. YES, THERE WAS A -- THERE WAS A DICTATION SYSTEM. I
17 GUESS I WOULD SAY I WASN'T NECESSARILY EMPLOYED EITHER --
18 Q. OKAY. EXCUSE ME.
19 A. -- JUST --
20 Q. AT THE TIME YOU WERE WORKING AT THE HOSPITAL IN
21 CONNECTION WITH THE PATIENTS, WAS THERE A DICTATION SYSTEM?
22 A. YES.
23 Q. DID YOU UTILIZE THAT SYSTEM?
24 A. YES.
25 Q. CAN YOU TELL US HOW YOU ACCESS THE SYSTEM?
334
1 A. YOU JUST -- YOU HAVE A CODE, THERE'S SOME INSTRUCTIONS.
2 YOU JUST HIT IN SOME -- A PHONE NUMBER EXTENSION, YOU PICK
3 UP THE PHONE AND YOU JUST TALK INTO THE PHONE. YOU DICTATE
4 YOUR EVALUATION OR YOUR DISCHARGE SUMMARY OR WHATEVER YOU'RE
5 DICTATING.
6 Q. OKAY. AND WOULD YOU SUBSEQUENTLY RECEIVE THAT DICTATED
7 DOCUMENT?
8 A. YES.
9 Q. WOULD IT BE MADE PART OF THE MEDICAL RECORD FOR THE
10 PATIENT?
11 A. YES.
12 Q. CAN YOU TELL ME WHAT D.R.G. STATUS, EXEMPT STATUS MEANS?
13 A. D.R.G. IS LIKE DIAGNOSTIC-RELATED GROUPS, AND THAT'S A
14 STATUS SET FORWARD BY MEDICARE OR DIFFERENT INSURANCE
15 COMPANIES THAT IF YOU HAVE SOMEONE THAT HAS A CERTAIN
16 DIAGNOSIS OR PROBLEM, THEY WOULD COME INTO THE HOSPITAL AND
17 THE INSURANCE COMPANY OR MEDICARE OR WHOEVER WOULD SAY FOR
18 THIS PROBLEM, WE'LL PAY THE HOSPITAL UP TO SIX DAYS TO TAKE
19 CARE OF THIS PROBLEM. IF IT TAKES 12 DAYS, WE STILL PAY FOR
20 SIX DAYS. IF YOU'RE UNDER A D.R.G., D.R.G. EXEMPT MEANS
21 THAT YOU WEREN'T UNDER THAT STRICT CRITERIA, THE UNIT HAD
22 MET CERTAIN, OH, THEY HAD APPLIED AND GONE THROUGH A PROCESS
23 THAT FOR PEOPLE COMING IN, THEY DIDN'T HAVE TO BE UNDER THAT
24 STRICT D.R.G. SO IF SOMEONE CAME IN WITH A CERTAIN
25 DIAGNOSIS, YOU COULD TYPICALLY TREAT THEM A LITTLE LONGER OR
335
1 SEE THAT THEY WERE GETTING BETTER, AND THE HOSPITAL WAS
2 GETTING REIMBURSED OR -- AT THAT TIME.
3 Q. OKAY. WOULD THE PHYSICIAN ALSO BE ABLE TO BILL FOR
4 SERVICES BEYOND THOSE, THOSE DATES ON D.R.G. OR EXEMPT
5 STATUS?
6 A. YEAH. YES. NOT UNLESS -- IF SOMEONE STAYED IN THE
7 HOSPITAL LIKE AN EXTRAORDINARY AMOUNT OF TIME AND UNDER THAT
8 MIGHT BE LIKE 28 DAYS OR SOMETHING, MEDICARE MAY WANT SOME
9 INFORMATION OR SAY, HEY, IF WE'RE GONNA PAY FOR THIS OR THIS
10 LENGTH OF STAY OR LONGER THAN THAT, THEY WOULD GET A LITTLE
11 BIT NERVOUS AFTER A CERTAIN LENGTH OF TIME. THEN YOU WOULD
12 JUST HAVE TO DOCUMENT AND SHOW WHAT YOU WERE DOING AND WHERE
13 SOMEONE WAS AT IF THEY WERE CONTINUING PAYING.
14 Q. OKAY. WAS THAT STATUS IN AND OF ITSELF IMPORTANT TO
15 YOU? WAS IT AN IMPORTANT COMPONENT OF THE UNIT?
16 A. WELL, IT WAS -- YEAH, IT WAS A VERY IMPORTANT COMPONENT
17 OF THE UNIT BECAUSE THESE INDIVIDUALS TAKE A LITTLE LONGER
18 TO NECESSARILY GET BETTER AS THEY'RE OLDER AND IT TAKES --
19 IT TAKES TIME FOR MEDICATIONS TO WORK, FOR EXAMPLE, AND SO
20 IF YOU'RE TRYING GET SOMEONE BETTER FROM A CERTAIN PROBLEM
21 IN FIVE OR SIX DAYS AND, YOU KNOW, THE MEDICINES TAKE
22 TYPICALLY A CERTAIN -- ANTIDEPRESSANT TAKES TWO OR THREE
23 WEEKS OR SO TO WORK, YOU DON'T KNOW HOW YOU'VE DONE WITHIN
24 SIX DAYS.
25 MR. WILSON: OKAY. ALL RIGHT. I HAVE NO FURTHER
336
1 QUESTIONS, YOUR HONOR.
2 MS. BARLOW: JUST A MINUTE, YOUR HONOR.
3 MR. WILSON: OH, EXCUSE ME, YOUR HONOR.
4 Q. EXCUSE ME, I NEGLECTED. THERE WAS ONE OTHER QUESTION
5 THAT I FAILED TO FOLLOW UP ON. I THINK I ASKED YOU AN
6 EARLIER QUESTION AS IT RELATED TO, CAN A PHYSICIAN WHO WORKS
7 AT THE DAVIS HOSPITAL, CAN HE WORK THERE WITHOUT PRIVILEGES
8 BEING GRANTED?
9 A. HE SHOULDN'T -- SHOULDN'T WORK THERE WITHOUT PRIVILEGES
10 BEING GRANTED.
11 Q. OKAY. AND DO THOSE PRIVILEGES HAVE A BEARING ON WHAT
12 YOU'RE ALLOWED TO DO, WHAT TYPE OF SERVICES YOU'RE ALLOWED
13 TO PERFORM?
14 A. YES.
15 MR. WILSON: OKAY. I HAVE NO FURTHER QUESTIONS,
16 YOUR HONOR.
17 THE COURT: CROSS-EXAMINATION?
18 MR. STIRBA: YES, THANK YOU, YOUR HONOR.
19 CROSS-EXAMINATION
20 BY MR. STIRBA:
21 Q. GOOD AFTERNOON, DR. JENSEN. YOU TESTIFIED EARLIER THAT
22 THIS UNIT HAD A MEDICAL CAPABILITY IN ADDITION TO PROVIDING
23 THE PSYCHIATRIC CARE, IS THAT RIGHT?
24 A. YES.
25 Q. AND I THINK YOU TOLD US INITIALLY THIS MORNING THAT, FOR
337
1 EXAMPLE, ONE OF THE THINGS THAT COULD BE HANDLED ON THE UNIT
2 AS A MEDICAL PROBLEM, I THINK YOU MENTIONED PNEUMONIA. DO
3 YOU REMEMBER THAT?
4 A. YES.
5 Q. AND PNEUMONIA, IT'S TRUE, IS IT NOT, IF UNTREATED
6 ESPECIALLY IN AN ELDERLY PERSON CAN IN FACT BE A FATAL
7 ILLNESS, TRUE?
8 A. YES.
9 Q. AND YOU ALSO MENTIONED CONGESTIVE HEART FAILURE AS
10 ANOTHER KIND OF MALADY THAT SOMEBODY MIGHT HAVE WHO WAS ON
11 THE UNIT. DO YOU REMEMBER SAYING THAT?
12 A. YES, A NUMBER OF ELDERLY CAN HAVE CONGESTIVE HEART
13 FAILURE.
14 Q. AND IN FACT, CONGESTIVE HEART FAILURE, DEPENDING ON THE
15 CIRCUMSTANCE, CERTAINLY COULD BE THE CAUSE OF SUDDEN DEATH,
16 ISN'T THAT TRUE?
17 A. YES.
18 Q. IN OTHER WORDS, YOU COULD HAVE AN ARRHYTHMIA WHICH COULD
19 BE AN EVENT CAUSES SUDDEN DEATH, CORRECT?
20 A. YES.
21 Q. AND OTHER FORMS OF ISCHEMIA; THAT IS, AN INABILITY OF
22 THE HEART TO ADEQUATELY BE SUPPLIED WITH BLOOD, THAT COULD
23 IN FACT UNDER CERTAIN CIRCUMSTANCES GIVEN AN INDIVIDUAL
24 PATIENT, COULD BE A TERMINAL EVENT, CORRECT?
25 A. YES.
338
1 Q. AND IT'S TRUE, IS IT NOT, THAT YOU HAVE TREATED
2 ALZHEIMER PATIENTS?
3 A. OH, YES.
4 Q. AND IT'S ALSO TRUE THAT ALZHEIMERS DISEASE IS IN FACT AT
5 LEAST AT THIS POINT A TERMINAL DISEASE, ISN'T -- IS THAT NOT
6 TRUE?
7 A. RIGHT. AND WHEN YOU USE THE WORD TERMINAL, YES, IT'S
8 A -- WHETHER YOU'RE LOOKING AT SOMETHING THAT'S TERMINAL AND
9 YOU'RE EXPECTING SOMEONE TO EXPIRE, YOU CAN'T CHANGE
10 ANYTHING WITHIN THREE DAYS OR A WEEK OR WITH ALZHEIMERS, IT
11 MIGHT BE YEARS.
12 Q. SURE. FOR EXAMPLE, ALZHEIMERS HAS A PROGRESSION AS A
13 DISEASE PROCESS, DOES IT NOT?
14 A. YES.
15 Q. AND CERTAINLY YOU'VE SEEN THE BEGINNING STAGE OF
16 ALZHEIMERS, CORRECT?
17 A. UH-HUH.
18 Q. AND THEN IT HAS A END STAGE, DOES IT NOT?
19 A. YES.
20 Q. AND THAT END STAGE TYPICALLY ENDS UP IN SOME
21 COMPLICATION ENDING IN DEATH, ISN'T THAT TRUE?
22 A. YES.
23 Q. AND IT IS ALSO TRUE, IS IT NOT, THAT CERTAIN FORMS OF
24 DEMENTIA -- AND I REALIZE THAT SOMETIMES IT'S DIFFICULT TO
25 BE PRECISE HERE, BUT CERTAIN FORMS OF DEMENTIA CAN ALSO BE
339
1 TERMINAL OR FATAL, ISN'T THAT TRUE?
2 A. YES. THERE ARE DIFFERENT TYPES OF DEMENTIA OF -- DUE TO
3 CARDIOVASCULAR DISEASES VERSUS ALZHEIMERS. THERE'S SLOW
4 VIRUSES. THERE'S DIFFERENT FORMS OF DEMENTIA.
5 Q. IN OTHER WORDS, THE PROCESS THAT CAUSES THE DEMENTIA --
6 AND YOU'VE MENTIONED CARDIOVASCULAR DISEASE -- MIGHT VERY
7 WELL BE SUFFICIENTLY ACUTE AT SOME POINT TO CAUSE DEATH,
8 CORRECT?
9 A. YES.
10 Q. AND DEMENTIA ALSO COULD BE CAUSED BY WHAT WE CALL
11 CEREBROVASCULAR DISEASES, ISN'T THAT TRUE?
12 A. YES.
13 Q. AND CEREBROVASCULAR DISEASE AS OPPOSED TO CARDIOVASCULAR
14 DISEASE HAS TO DO WITH THE COMPONENTS IN THE BRAIN AND THE
15 INABILITY OF THE BRAIN TO ADEQUATELY OBTAIN OXYGEN OR BLOOD
16 SUPPLY, CORRECT?
17 A. YES. COMMONLY CALLED A STROKE IN LAYMEN'S TERMS.
18 Q. STROKE. AND CERTAINLY THAT CAN BE A TERMINAL EVENT,
19 CORRECT?
20 A. (WITNESS NODS.)
21 THE COURT: WAS THAT ANSWERED?
22 THE WITNESS: YES.
23 Q. (BY MR. STIRBA) NOW, YOU'RE AWARE, ARE YOU NOT, THAT