1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 TONI L. BIANCHI, Executrix of the Estate of FRANCES R. 4 BRONCACCIO, Deceased, 5 Plaintiff, 6 -vs- CASE NO. 370551 7 8 KAISER FOUNDATION HEALTH PLAN OF OHIO, et al., 9 Defendants. 10 11 - - - - 12 Deposition of RACHEL W. ABERNETHY, M.D., taken as 13 if upon cross-examination before Laura L. Ware, a 14 Notary Public within and for the State of Ohio, at 15 Kaiser Permanente Medical Center, 12301 Snow Road, 16 2nd Floor, Administration Conference Room, 17 Cleveland, Ohio, at 9:45 a.m. on Tuesday, March 7, 18 2000, pursuant to notice and/or stipulations of 19 counsel, on behalf of the Plaintiff in this cause. 20 21 - - - - 22 WARE REPORTING SERVICE 23 21860 CROSSBEAM LANE ROCKY RIVER, OH 44116 24 (216) 533-7606 FAX (440) 333-0745 25 2 1 APPEARANCES: 2 Mark W. Ruf, Esq. Hoyt Block Building, Suite 300 3 700 West St. Clair Avenue Cleveland, Ohio 44113 4 (216) 687-1999, 5 On behalf of the Plaintiff; 6 Susan M. Reinker, Esq. Bonezzi, Switzer, Murphy & Polito 7 1400 Leader Building 526 Superior Avenue 8 Cleveland, Ohio 44114 (216) 875-2767, 9 On behalf of the Defendants. 10 11 E X H I B I T I N D E X 12 PAGE 13 Plaintiff's Exhibits 7 and 8 16 14 Plaintiff's Exhibit 9 20 Plaintiff's Exhibit 10 32 15 Plaintiff's Exhibit 11 32 16 17 18 19 20 21 22 23 24 25 3 1 RACHEL W. ABERNETHY, M.D., of lawful age, 2 called by the Plaintiff for the purpose of 3 cross-examination, as provided by the Rules of Civil 4 Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as follows: 6 CROSS-EXAMINATION OF RACHEL W. ABERNETHY, M.D. 7 BY MR. RUF: 8 Q. Could you please state your name and spell your 9 name. 10 A. Rachel, R-A-C-H-E-L, W. Abernethy, 11 A-B-E-R-N-E-T-H-Y. 12 Q. And what is your address? 13 A. 12500 Edgewater Drive, Suite 1708, Lakewood, Ohio, 14 44107. 15 Q. What suite number was it? 16 A. 1708. 17 Q. Dr. Abernethy, my name is Mark Ruf. I represent the 18 Estate of Frances Broncaccio. 19 If at any time I ask you a question and you do 20 not understand my question, please tell me. If you 21 give me an answer to a question, I'll assume that 22 you understood the question. Okay? 23 A. Thank you. 24 Q. Who is your employer? 25 A. Ohio Permanente Medical Group. 4 1 Q. How long have you been employed by Ohio Permanente 2 Medical Group? 3 A. Twenty-eight years. 4 Q. In 1997, approximately how many patients did you 5 have in your practice? 6 A. I'm not sure. Somewhere around 3,000. I'm not 7 sure. 8 Q. And do you agree it's important to keep thorough 9 medical record documentation? 10 A. Yes. 11 Q. And that's because with that many patients you can't 12 remember each individual patient, correct? 13 A. That's correct. 14 Q. Have you ever worked in an emergency room? 15 A. Not in the recent years. 16 Q. How about during your medical career, have you 17 worked in the emergency room? 18 A. I moonlighted there years ago. 19 Q. When did you work in the ER, what year? 20 A. Sometime in the '80s. I don't remember the years. 21 Q. What ER did you work in? 22 A. Kaiser. 23 Q. And how long did you work in the ER? 24 A. I would say probably about five years as a 25 moonlighter. 5 1 Q. During the time you worked in the ER, did a patient 2 ever come in that was suffering from an aortic 3 dissection? 4 A. No. 5 Q. Have you ever worked in the CDU at Kaiser? 6 A. No. I once got pulled there for a day, and that was 7 it. 8 Q. Are you a primary care physician? 9 A. Yes. 10 Q. How long have you been a primary care physician? 11 A. My entire career. 12 Q. When were you licensed to practice medicine? 13 A. 1966. 14 Q. And that's in the State of Ohio? 15 A. Yes. 16 Q. Any other states? 17 A. No. 18 Q. Has your license ever been subject to any type of 19 disciplinary action? 20 A. No. 21 Q. Other than being a primary care physician and 22 working in an ER for approximately five years, have 23 you been involved in any other areas of medicine? 24 A. I worked, moonlighted some in Convenient Care for 25 several years. 6 1 Q. How long was that? 2 A. Probably about four or five years. 3 Q. What's Convenient Care? 4 A. It's a drop-in clinic. 5 Q. Is that like one of those urgent care centers? 6 A. Yes. 7 Q. And when was that? 8 A. It was sometime in the late '80s, early '90s. 9 Q. Did you work that job in addition to being a primary 10 care physician at Kaiser? 11 A. It was a Kaiser UrgiCare Center that I worked in. 12 Q. Where was that located? 13 A. In Lakewood. 14 Q. What Kaiser facilities have you worked at? 15 A. I've worked at Parma my entire career. I have done 16 some Convenient Care work at Lakewood and rounded in 17 hospitals. 18 Q. You've made rounds in hospitals? 19 A. Yes. 20 Q. What hospitals? 21 A. Kaiser Hospital here when it existed, at Cleveland 22 Clinic medical rotation, and currently I round, or 23 do coverage, I should say, at Lake County West. 24 Q. Has the way you've been compensated changed during 25 the time you've been employed by Kaiser? 7 1 A. No. 2 Q. To your knowledge are you compensated differently 3 than other doctors at Kaiser? 4 A. I'm compensated the same as the other internists. 5 Q. Do you know about other specialists at Kaiser? 6 A. Each department has their own schedule of incomes. 7 Q. Do you have a contract with Ohio Permanente Medical 8 Group? 9 A. I'm an employee -- no, I'm a member of the Ohio 10 Permanente Medical Group. 11 Q. So do you have an employment contract with anyone? 12 A. I don't believe so. I believe I'm just simply a 13 member of the medical group. 14 Q. Does the Ohio Permanente Medical Group have a 15 contract to provide physicians to a facility such as 16 this? 17 A. They have -- I'm not sure of the legal structure, 18 you know, what terms are used. I just don't know 19 the legal words, I'm sorry. All I can say is that I 20 know the Ohio Permanente Medical Group provides care 21 to members that purchase Kaiser Health Insurance, 22 and I don't know the legal words for the 23 relationship. 24 Q. How are you compensated? 25 A. I have a yearly salary. 8 1 Q. Do you receive any type of bonuses? 2 A. If the medical group makes money, there can be a 3 bonus. 4 Q. Are the bonuses based on the cost per patient? 5 A. What do you mean by that? 6 Q. Are the bonuses based on the amount of money that's 7 spent per patient? 8 A. No. The bonus is simply at the end of the year if 9 the medical group has some money you could get a 10 bonus, if they have no money you don't get a bonus, 11 and if they lose big bucks you could have to pay. 12 Q. So if Ohio Permanente Medical Group loses money, you 13 may have to pay money back? 14 A. That has never occurred. 15 Q. But your compensation is at least in part based on 16 the performance of Ohio Permanente Medical Group? 17 A. My compensation is a straight salary, and that's 18 it. If there is monies left over at the end of the 19 year, I could get a bonus. 20 Q. Do you know if the money generated by Ohio 21 Permanente Medical Group is based on a cost per 22 patient? 23 A. I'm not familiar with how the health plan determines 24 how much money is paid to the Ohio Permanente 25 Medical Group. I don't know that. 9 1 Q. Do you know who would have knowledge of those 2 matters? 3 A. I assume the financial people in the organization. 4 Q. Are they located here at the Kaiser Parma facility? 5 A. No. 6 Q. Where are they located? 7 A. North Point. 8 Q. In Cleveland? 9 A. Yes. 10 Q. Do you know if the money generated by Ohio 11 Permanente Medical Group is at all dependent on the 12 amount of money that's spent on the testing of your 13 patients? 14 A. I don't believe so. 15 Q. You were Frances Broncaccio's primary care 16 physician, correct? 17 A. Yes. 18 Q. How long were you her primary care physician? 19 MS. REINKER: You can look at the 20 records whenever you want. 21 Q. Feel free to look at the records at any time. 22 A. Okay. I think she was -- I think I took care of her 23 very briefly in the '70s when she was a member of 24 Kaiser. She apparently left and came back in 1982, 25 I believe, and from then on she came to me. 10 1 Q. So you were her primary care physician from 1982 up 2 until her death? 3 A. Yes. 4 Q. As her primary care physician, would you have had to 5 approve any tests that were done in the emergency 6 department either on December 7th or December 8th? 7 A. No. 8 Q. Were you called the evening of December 7th or 8th? 9 A. No. 10 Q. When was the first time you learned that she had 11 been in the emergency room on December 7th and 8th? 12 A. My recollection, this is very fuzzy, is that 13 somebody said that the patient, a patient of mine, 14 died in the CDU, and I don't remember what day she 15 died. 16 Q. Would either the emergency department or CDU have to 17 get your permission to transfer her to the Cleveland 18 Clinic? 19 A. No. 20 Q. That's a decision that the emergency room doctors 21 and CDU doctors would be able to make on their own? 22 A. I have no input in that. 23 Q. Are you involved in any way when a patient of yours 24 is receiving ER care? 25 A. No, unless, and very rarely, the ER doctor wishes to 11 1 talk to me. And he can call me, but this happens 2 very, very rarely. 3 Q. I noticed that there are some records that are in 4 the computer system and it's entitled Encounter 5 System. Are you familiar with that? 6 A. Yes, there's an Encounter System. 7 Q. Is the purpose of the Encounter System to show every 8 time that a patient interacts with a doctor? 9 A. That's part of its purpose. 10 Q. What other purposes does it have? 11 A. We are trying to go to a paperless chart so that 12 eventually everything will be on computer. 13 Q. Do you have a computer terminal in your office? 14 A. Yes. 15 Q. And are you able to access the Encounter System? 16 A. Yes. 17 Q. What kind of information is kept on that system? 18 A. There's various pieces to it. If you want just the 19 Encounter System, the Encounter System encounters 20 some of the tests done on the patient and encounters 21 visits to the physicians. 22 Q. So it contains a list of testing that's been done 23 over the years at Kaiser? 24 A. Yes, from its -- no, from when it started. It 25 hasn't always been in existence, and there have been 12 1 changes made through the years as to what goes in 2 it. 3 Q. When did the Encounter System start? 4 A. I can't really remember. 5 Q. Do you know approximately what year? 6 A. I think sometime in the early '90s, but I don't 7 remember exactly. 8 Q. Does the Encounter System also contain information 9 about past diagnoses for a patient? 10 A. There is a system. It's not the -- there's 11 different things in the system and one system does 12 list diagnoses. 13 Q. What are the different systems that a doctor can 14 access? 15 A. Well, you can access EN 11, which is the Encounter 16 System, you can access EN 51, which gives you a list 17 of various things on the patient, including 18 diagnoses, you can access currently lab and 19 currently x-ray, that's been late additions to the 20 system, and you can currently view office records on 21 the patient, but that has been a late addition to 22 the system. 23 Q. When were those additions added? 24 A. I don't know the exact years. I mean, you know, 25 years just blend. 13 1 Q. You've been doing this a long time, huh? 2 A. Well, you know, I just -- they do. 3 Q. Does the Encounter System document phone calls 4 between a physician and patient? 5 A. At the moment it does, but that was only started in 6 the last year or two years. Before that, before we 7 had the centralized call center, I don't believe 8 they were documented on the computer. 9 Since the centralized call center has been in 10 effect, and again I don't remember which year it 11 went into effect, then there is documentation of the 12 call, but before that I don't believe there was. 13 Q. Prior to the electronic documentation, would phone 14 calls between a patient and a physician be recorded 15 in the patient's chart? 16 A. Generally, yes, we tried to. Does everything get 17 documented? I can't say everything does, but we 18 certainly try. 19 Q. Would it only be phone calls between a patient and a 20 doctor or also calls between the staff and the 21 patient? 22 A. It would also be between the staff and the patient. 23 At that time, earlier, before we had the centralized 24 call center, we had smaller call centers in the 25 modules. 14 1 Q. Would phone calls -- would information regarding 2 phone calls be recorded anyplace else other than in 3 the patient's chart? 4 A. Until the computer system went up for the 5 centralized call system, the only -- and then it 6 became electronically documented, up until that 7 point it was documented only paperly in the chart. 8 Q. What about appointments for a patient, what 9 documentation would be kept on that? 10 A. The documentation, I don't know if you can go back 11 and get appointment schedules not kept, I don't know 12 if there's that capability or not. We can document 13 appointments that were kept, but if a patient 14 doesn't show they are no longer in the Encounter 15 System. 16 Q. I'm sorry, I didn't understand that. 17 A. Okay. If a patient has an appointment today and 18 doesn't keep the appointment today, they are not in 19 the Encounter System. 20 Q. Okay. 21 A. I don't know if there's a way to go through the 22 systems to find out that the appointment was 23 scheduled, I just don't know that. 24 Q. But prior to this electronic system, the only way 25 you know of to go back and look as to whether a 15 1 patient missed an appointment is from the patient's 2 chart? 3 A. The only way that I know to look if a patient missed 4 an appointment is if it's been documented in the 5 chart that the appointment was made, then see if she 6 did or didn't keep it. I don't know if 7 electronically you can go back and access 8 appointments made and not kept. I just don't know 9 that because I've never done it. 10 Q. Do you know what Frances Broncaccio's blood pressure 11 was at any time during the year 1996? 12 A. The year 1996, she was not -- did not keep her 13 appointments, so I can't tell you blood pressure. 14 Q. So you don't know what her blood pressure was at any 15 time during that year, correct? 16 A. She did not keep her appointments in 1996. 17 Q. So you don't know what her blood pressure was during 18 that year, correct? 19 A. She did not keep her appointments with me that 20 year. 21 Q. Why do you say she didn't keep her appointments with 22 you; where is that documented? 23 A. It was in February 24th of 1997 there was an 24 appointment made for her which she did not keep. 25 Q. Okay. Right now I'm talking about 1996. 16 1 A. In 1996 -- 2 MS. REINKER: You have to go back. 3 A. She was told to make an appointment in eight months 4 after the visit in 1995. She did not keep that 5 appointment. 6 Q. Could you tell me where that is documented? 7 A. Yes. The visit on 7, whatever it is, I can't read 8 it, of '95, she was told to make an appointment in 9 eight months. 10 MR. RUF: Let's go off the record. 11 - - - - 12 (Thereupon, a discussion was had off 13 the record.) 14 - - - - 15 (Thereupon, Plaintiff's Exhibits 7 and 16 8 were mark'd for purposes of identification.) 17 - - - - 18 Q. I'm handing you what's been marked as Exhibits 7 and 19 8. Are those the documents that you're referring 20 to? 21 A. Yes. 22 Q. Where does it state on there that she was to make an 23 appointment in eight months? 24 A. Under plan, number one. 25 Q. Could you please highlight the portion of the record 17 1 that says that? 2 A. (Complies.) 3 Q. So what did you tell her at that time? 4 A. That she should be followed up and be seen so we 5 could continue to follow her. 6 Q. Is there any notification system to notify a patient 7 when they should schedule an appointment? 8 A. I don't believe there is -- was at that point in 9 time. Currently there is a notification system. I 10 do not believe it was in existence in 1995. 11 Q. So back in '95 if a patient forgot about the 12 appointment, there was no way or there was no check 13 by Kaiser, correct? 14 A. I don't believe there was in 1995. 15 Q. Is there a system in place now to follow up on 16 patient appointments? 17 A. There's a system where there's -- yes, there is. 18 Q. When was that instituted? 19 A. It's called the Bellflower Project, and I can't 20 remember what year it was instituted. 21 Q. During 1996 did you renew any prescriptions for 22 Frances Broncaccio? 23 A. I believe I personally renewed a prescription, yes. 24 Q. How many times were prescriptions renewed during 25 1996? 18 1 A. I renewed her Premarin in July of '96, and I also 2 renewed a Normodyne prescription in 1996. 3 Q. What are those two medications for? 4 A. Premarin is a hormone replacement therapy, Normodyne 5 is a blood pressure medication. 6 Q. From July of 1995 until July of 1996, were any of 7 her prescriptions renewed? 8 A. From which, I'm sorry, which year? 9 Q. I'm going back to the previous year, from July of 10 '95 until July of '96, were any prescriptions 11 renewed? 12 A. Okay, from July of 1995, according to the chart 13 there was a prescription renewed on 5-15-96 by one 14 of my colleagues. 15 Q. Who was that? 16 A. Dr. Yang, and the Normodyne prescription was renewed 17 in July of '96, and the Premarin prescription was 18 renewed in July of '96, and -- 19 Q. I'm sorry, in July of -- 5-15-96 Dr. Yang renewed 20 what prescription? 21 A. He renewed Maxzide and Motrin. 22 Q. And what are those medications for? 23 A. Maxzide is a diuretic for hypertension, and Motrin 24 is an antiinflammatory drug. 25 Q. What about from July of '96 to December of '97, were 19 1 prescriptions renewed? 2 A. July of '96 to -- 3 Q. December of '97. 4 A. Okay. Now, we've gotten through -- let me write 5 this down. I'm sorry. That's an exhibit, sorry. 6 Q. Let me give you a scrap piece of paper. 7 A. Yeah, could you? I'm sorry to be so dumb. July of 8 19 -- 9 Q. That's all right. I didn't do this in a good 10 order. 11 A. July of '96 to -- 12 MS. REINKER: December of '97. 13 Q. December of '97. 14 MS. REINKER: Until she died, right? 15 A. Oh, okay, okay. So here we are in July of '96 where 16 the Normodyne prescription was refilled, and then 17 the Premarin prescription in '96. We have a 18 diuretic refilled on 1-6-9 -- and that should 19 actually be '97. I wrote the date '96 down. At 20 that point we even set up an appointment for her to 21 come in, which she failed to keep, and in July -- 22 Q. What was the diuretic that was renewed? 23 A. Triamterene Hydrochlorothiazide. Do you want me to 24 spell it? 25 Q. Yes, please. 20 1 A. T-R-I-A-M-T-E-R-E-N-E, slash, Hydrochlorothiazide, 2 37.5, dash, 25. It's the generic equivalent for the 3 Maxzide. 4 Q. I'm sorry, could you spell the second part, 5 hydrochlor -- 6 MS. REINKER: It's HCTZ, the 7 abbreviation. 8 A. HCTZ. 9 Q. Okay. 10 A. And at that time an appointment was actually set up 11 for her, which she failed to keep. 12 Q. How do you know an appointment was set up? 13 A. The nurse documented the time and the date that she 14 was, the appointment, was made for her on. 15 MR. RUF: Let's go off the record for 16 one moment. 17 - - - - 18 (Thereupon, a discussion was had off 19 the record.) 20 - - - - 21 (Thereupon, Plaintiff's Exhibit 9 was 22 mark'd for purposes of identification.) 23 - - - - 24 Q. I'm handing you what's been marked as Plaintiff's 25 Exhibit 9. Is that the document you're referring 21 1 to? 2 A. It's the document I'm referring to and the date of 3 '96 should be '97. 4 Q. The note says not seen for greater than one year, 5 correct? 6 A. Correct. 7 Q. Refills given? 8 A. Needs appointment. 9 Q. Needs appointment. Does it say anything about 10 appointment scheduled in that note? 11 A. On the right-hand side, the nurse has scheduled the 12 appointment for 2-24-97 at 4:15. 13 Q. All right. When was the next set of prescriptions 14 renewed? 15 A. The next set of prescriptions was refilled on 16 7-23-97 for Normodyne. 17 Q. And that's blood pressure medication? 18 A. Yes. 19 Q. Was there another renewal before her death? 20 A. Not according to the chart that I have. 21 Q. Prior to 1995, what type of blood pressure 22 medication was she on? 23 A. She was on Normodyne, she was on a diuretic. 24 MS. REINKER: Are you talking about all 25 the years prior to '95 or -- he said prior to 22 1 '95. 2 A. The only blood pressure medication she was on was 3 Normodyne. She didn't like the generic equivalent 4 of Labetalol. She was briefly tried on Calan and 5 had symptoms from that and was also on a diuretic 6 during this time. 7 Q. Was she switched from Normodyne to, is it, Maxzide? 8 A. No, she was not switched. Maxzide was added to the 9 Normodyne. 10 Q. Okay. Why was it added to the Normodyne? 11 A. For better blood pressure control. 12 Q. Well, if you didn't see her in May of '96, how did 13 you know that she needed better blood pressure 14 control? 15 A. She had been on the Maxzide since 1992. 16 Q. To your knowledge was she on both Normodyne and 17 Maxzide from '95 up until the time of her death? 18 A. She was on it from '92 -- if she took her 19 medications, she was on it from '92 until the time 20 of her death. 21 Q. The medication that was prescribed, 1-6-97, is what 22 again? 23 A. 1-6-97, I have written that was Triamterene 24 Hydrochlorothiazide, which is the same as Maxzide. 25 Q. Do you know if that has any different side effects 23 1 than Maxzide? 2 A. It's exactly the same medication. 3 Q. How do you know if the blood pressure medication was 4 effective if you didn't see her? 5 A. We had tried to get her to come into the office. 6 Without her coming in, I cannot tell you what her 7 blood pressure was. 8 Q. So you also don't know what her blood pressure was 9 in '97 up until December? 10 A. Since she did not keep her appointments, I cannot 11 tell you what her blood pressure was. 12 Q. Do Medicare regulations require you to do a physical 13 exam to continue renewing prescriptions? 14 A. I don't know what Medicare spells out in their 15 regulations. 16 Q. Did anybody from your office ever call Frances 17 Broncaccio and say that you weren't going to renew 18 prescriptions unless she was seen by a doctor? 19 A. We encouraged her to make an appointment. I did not 20 threaten her that I would not refill medications 21 unless I saw her. 22 Q. Well, was it ever explained to her that her blood 23 pressure needed to be monitored and therefore she 24 had to come in in order to continue renewing 25 prescriptions? 24 1 A. When we made her appointments, when I talked to her 2 in the office, I tried to explain to her the need 3 for continued medical care. 4 Q. And that was in July of '95? 5 A. The last time I saw her in the office was July of 6 '95. We had made appointments when we talked to 7 her on the phone and we had always encouraged her to 8 come in. 9 Q. Do you agree that you did not see her between July 10 of '95 and December of '97? 11 A. That is correct. 12 Q. Is there any record of telling her that the 13 prescriptions could not be continued unless her 14 blood pressure was taken? 15 A. We have the documentation that we told her she 16 had -- an appointment was set up for her so that we 17 could continue to monitor her blood pressure. She 18 was told when she was in the office to make a 19 follow-up appointment, and the nurses generally when 20 they talk to the patients encourage them to follow 21 up with their physician. 22 Q. Well, it is noted in the records that appointments 23 were scheduled? 24 A. We have a documentation that an appointment was 25 scheduled, yes. 25 1 Q. Except the substance of the conversation with the 2 patient is not recorded, is it? 3 A. That is correct. 4 Q. So there's no documentation of an explanation to the 5 patient of the importance of having her come in and 6 monitor her blood pressure, correct? 7 A. When the nurse makes the appointment for the 8 patient, when I see the patient in the office, we 9 both tell them why we're wanting follow-up and why 10 we're setting this up. 11 Q. And that was in July of '95, correct? 12 A. July of '95 and again in February of '97, there's 13 clear documentation that this was done. 14 Q. Well, the note for February of '97 doesn't say 15 anything about explained to patient blood pressure 16 need to be taken, does it? 17 A. It explains to her that she needs to be seen to have 18 follow-up of her medical condition. 19 Q. But it's not documented as to why, correct? 20 A. We have no writing as to why we needed the 21 appointment, but we clearly stated to her she needed 22 an appointment for the follow-up of her medical 23 problems. 24 Q. Do you agree there's no written documentation of an 25 explanation to her that you could not determine 26 1 whether the medication was effective without taking 2 her blood pressure? 3 A. I think when we apply from the documentation in 4 January of '97 that we really felt that she needed 5 to be seen to review her medical health and to 6 review her medications. I think that was the reason 7 that we set up this appointment. 8 Q. Do you agree that the acceptable standard of medical 9 care requires you to monitor a patient for which you 10 have prescribed medication? 11 A. You certainly urge a patient to see you, you ask 12 them to come in, you set up appointments for them. 13 Q. So you would agree it's important to monitor a 14 patient that is on blood pressure medication, 15 correct? 16 A. We encourage the patient to come in to see us, yes. 17 Q. So do you agree that's important or not important? 18 A. I think it is important. 19 Q. And why is it important? 20 A. We need to go over the overall health of the 21 patient, we need to see what is happening in the 22 patient, and we need to take care of their medical 23 problems. 24 Q. Do you agree that you can't determine whether blood 25 pressure medication is effective without taking that 27 1 patient's blood pressure? 2 A. To know what the blood pressure is, the blood 3 pressure has to be taken. 4 Q. Do you know if there's any kind of requirement 5 either in any type of regulations or based on any 6 policy of Kaiser as to what you need to do to 7 continue to renew blood pressure medications? 8 A. We try to make sure the patient is seen by offering 9 them appointments, encouraging them to make 10 appointments. When the decision is made are you 11 going to cut them off from their blood pressure 12 medication if they are refusing to come in for their 13 appointments, I have felt it is better to maintain a 14 medication than to suddenly cut them off from their 15 medication. 16 Q. Do you know whether she was having any side effects 17 from her blood pressure medication from July of '95 18 to December of '97? 19 A. The patient, during this time period, did not call 20 the office making any complaints of side effects of 21 medication. 22 Q. Do you agree that there was no assessment of Frances 23 Broncaccio's aortic insufficiency and hypertension 24 from July of '95 to December of '97? 25 A. Since the patient did not keep her appointments, we 28 1 could not assess it. 2 Q. Were you involved in scheduling an echocardiogram 3 for Frances Broncaccio in 1992? 4 A. Yes. 5 Q. And handing you what was previously marked as 6 Plaintiff's Exhibit 2, have you seen that document 7 before? 8 A. Yes. 9 Q. Is that the report for the echocardiogram that was 10 done in 1992? 11 A. Yes. 12 Q. Do you know how to read an echocardiogram report? 13 A. I read the interpretation of the echocardiogram 14 report. 15 Q. So you don't actually look at the values at the 16 top? 17 A. Not always. 18 Q. And do you agree the interpretation was normal right 19 and left ventricular systolic functions, LVEF 70 20 percent, mild mitral regurgitation, moderate aortic 21 insufficiency? 22 A. That's the report. 23 Q. What is LVEF? 24 A. Left ventricular ejection fraction. 25 Q. Were you aware that in '92 she had an abnormal 29 1 aortic root value? 2 A. She had very minimal changes in her aortic root, 3 very minimum. 4 Q. Were you involved in scheduling an echocardiogram 5 July 13th, '95 for Frances Broncaccio? 6 A. Yes. 7 Q. I'm handing you what was previously marked as 8 Plaintiff's Exhibit 3. Have you seen that document 9 before today? 10 A. Yes. 11 Q. Do you agree that between '92 and '95 the aortic 12 root value went from 3.9 to 4.0? 13 A. There was a trivial change reported. I think that's 14 within the realm of ability to read the actual 15 echo. 16 Q. And based on the report, the normal value is 2.0 to 17 3.7? 18 A. Yes. 19 Q. Was there any worsening of her condition from '92 to 20 '95? 21 A. The patient reported no symptoms at all. 22 Q. Well, based on the interpretation and the reports, 23 do you know if there was a worsening of her 24 condition? 25 A. The ejection fraction decreased slightly. There was 30 1 development of some mild left ventricular 2 hypertrophy. 3 Q. And what is left ventricular hypertrophy? 4 A. The thickness of the ventricular wall. 5 Q. Can that be due to aortic insufficiency? 6 A. Yes. 7 Q. Do you agree that the left ventricular ejection 8 fraction went down to 60 percent in '95? 9 A. That is what it is reported as. 10 Q. And under the interpretation they also have 11 moderately dilated proximal aorta, correct? 12 A. Yes. 13 Q. That was not reported on the previous report in '92, 14 was it? 15 A. That is correct, but if you look at the values 16 there's been very little change. If the values are 17 absolute, there's -- they're essentially the same 18 values. 19 Q. You did not order an echocardiogram between July of 20 '95 and December of '97, correct? 21 A. The patient did not choose to keep her appointments 22 during that time. 23 Q. So an echocardiogram was not done during that time, 24 correct? 25 A. Since the patient did not choose to keep her 31 1 appointments. 2 Q. Do you know if there was a worsening of her 3 condition during that time period? 4 A. I would assume if she developed any symptoms she 5 would have been willing to come in. 6 Q. But you don't know whether there was a worsening of 7 her condition during that time period, do you? 8 A. I would assume that if a person was developing 9 symptoms they would have agreed to keep their 10 appointments. Other than that, I cannot make a 11 comment. 12 Q. Do you know if there was progressive dilation of the 13 aorta from July of '95 to December of '97? 14 A. Since the patient, you know, did not keep her 15 appointments and I assume was having no symptoms, I 16 doubt that there was, but I don't know for sure. 17 Q. Do you know if there was an increase in the severity 18 of her aortic regurgitation from July of '95 to 19 December of '97? 20 A. Since she was asymptomatic, or I assume she was 21 asymptomatic since she didn't choose to keep her 22 appointments, I assume that the condition was not 23 really worsening. 24 MR. RUF: Why don't you mark this. 25 - - - - 32 1 (Thereupon, Plaintiff's Exhibit 10 was 2 mark'd for purposes of identification.) 3 - - - - 4 Q. I'm handing you what's been marked as Plaintiff's 5 Exhibit 10. It's a letter from Robert Bianchi 6 dated 12-18-97 to Dr. Abernethy requesting 7 medical records for Frances Broncaccio from 1985 to 8 the present. Would you take a look at that 9 document? 10 A. Yes. 11 Q. Do you remember receiving that request for medical 12 records? 13 A. I don't remember per se receiving it, but I 14 responded to it, so I would have had to have 15 received it. 16 MR. RUF: Let's mark this. 17 - - - - 18 (Thereupon, Plaintiff's Exhibit 11 was 19 mark'd for purposes of identification.) 20 - - - - 21 Q. I'm handing you what's been marked Plaintiff's 22 Exhibit 11. It's a letter of December 30th, 1997 23 from you to Robert Bianchi. Could you take a look 24 at that document? 25 A. Yes. 33 1 Q. Was that your response to Mr. Bianchi's request for 2 medical records? 3 A. Yes. 4 Q. And what was the date of your response? 5 A. It was December 30th. 6 Q. Were you involved in any way in the medical record 7 production after December 30th of '97? 8 A. No. 9 Q. Could you tell me what you reviewed before your 10 deposition today? 11 A. I went through the chart. 12 Q. Anything else you reviewed? 13 A. I tried to look at the electronic system, but the 14 scanning was very poor. 15 Q. What did you try to look at in the electronic 16 system? 17 A. I tried to look at the ER sheet, and it was just 18 very poorly scanned. 19 Q. Have you reviewed any reports? 20 A. No. 21 Q. Have you ever given a deposition before today? 22 A. Yes. 23 Q. How many times? 24 A. About three or four. 25 Q. Were you a party to an action or an expert 34 1 witness? 2 MS. REINKER: Objection, but you can 3 answer. 4 A. The suits involved Kaiser, and I participated in the 5 care given the patient at Kaiser, the patients at 6 Kaiser. 7 Q. Did any of those suits involve the failure to 8 diagnose a cardiac condition? 9 A. No. 10 Q. Do you remember any of the patient names in those 11 lawsuits? 12 MS. REINKER: May I have a continuing 13 objection? 14 MR. RUF: Sure. 15 A. I don't remember their names. 16 Q. Are you board certified in any area of medicine? 17 A. In internal medicine. 18 Q. When were you board certified? 19 A. 1971. 20 Q. After Frances Broncaccio's death, did you speak with 21 any of her family members? 22 A. No. 23 Q. To your knowledge, did you speak directly with 24 Frances Broncaccio at any time between July of '95 25 and December of '97? 35 1 A. I really can't recall. 2 Q. Is there any record of you speaking directly with 3 her? 4 A. The printed page does not show any. 5 Q. The written documentation shows communication 6 between office staff and Frances Broncaccio? 7 A. Yes. 8 Q. Let me just look over my notes. I may be 9 finished. 10 Do you know what Frances Broncaccio was told 11 about her hypertension and aortic insufficiency at 12 her July, '95 appointment? 13 A. I generally review with the patient what their 14 medical condition is and the problems associated 15 with it, that's my general practice. 16 Q. Is there any documentation that she was informed 17 that she had aortic insufficiency? 18 A. Yes, there's -- in the office I would have discussed 19 the murmur with her and explained why we were 20 getting the echo, and the echo reports were sent to 21 her. 22 Q. Did she have a murmur in '95? 23 A. In '95 she had a murmur. 24 Q. Did she have a murmur in '92? 25 A. Yes, she had a murmur in '92. 36 1 Q. And what was causing the murmur? 2 A. On examination she had the murmur of aortic 3 insufficiency which prompted the echocardiogram to 4 document through the echo technique what was going 5 on. 6 Q. Other than the murmur, did she have any other 7 physical findings due to the aortic insufficiency, 8 in either '92 or '95? 9 A. No. 10 Q. Okay. Thank you, Doctor, that's all I have. 11 A. Thank you very much. 12 MS. REINKER: Are you going to request 13 this written? 14 MR. RUF: Yes. 15 MS. REINKER: Doctor, you have the 16 right to review the transcript before rather 17 than your signature just being put on it. I 18 would advise you to do that. Can we stipulate 19 that the transcript can be sent to her so that 20 she doesn't have to go to the Court Reporter's 21 office? 22 MR. RUF: Certainly. 23 THE WITNESS: Now, I will be away from 24 the 13th to the 30th of March. 25 MS. REINKER: Well, we'll have to get 37 1 it to you right after the 30th. Right when 2 you get back it will be waiting for you when 3 you get home. 4 5 RACHEL W. ABERNETHY, M.D. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 38 1 2 C E R T I F I C A T E 3 The State of Ohio, ) SS: 4 County of Cuyahoga.) 5 6 I, Laura L. Ware, a Notary Public within and for the State of Ohio, do hereby certify that the 7 within named witness, RACHEL W. ABERNETHY, M.D., was by me first duly sworn to testify the truth, the 8 whole truth, and nothing but the truth in the cause aforesaid; that the testimony then given was reduced 9 by me to stenotypy in the presence of said witness, subsequently transcribed into typewriting under my 10 direction, and that the foregoing is a true and correct transcript of the testimony so given as 11 aforesaid. 12 I do further certify that this deposition was taken at the time and place as specified in the 13 foregoing caption, and that I am not a relative, counsel or attorney of either party or otherwise 14 interested in the outcome of this action. 15 IN WITNESS WHEREOF, I have hereunto set my hand and affixed my seal of office at Cleveland, 16 Ohio, this 13th day of March, 2000. 17 18 Laura L. Ware, Ware Reporting Service 19 21860 Crossbeam Lane, Rocky River, Ohio 44116 My commission expires May 17, 2003. 20 21 22 23 24 25