1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 ----------------------------------X 4 ANITA MECKLEY, et al, :Case No. 5 Plaintiffs, :393383 6 v. :Judge McMonagle 7 DRS. HILL AND THOMAS, et al, : 8 Defendants. : 9 : 10 ----------------------------------X 11 12 Deposition of David Abramson, M.D. 13 14 Washington, D.C. 15 16 Thursday July 26, 2001 17 5:00 p.m. 18 19 20 21 22 2 1 2 Reported by: Colleen Good, Court Reporter 3 JOB NO. 139501 4 5 6 7 8 Thursday, July, 26, 2001 9 10 11 12 Deposition of David Abramson, M.D. held at the 13 home of: 14 15 David Abramson, M.D. 16 5035 Garfield Street, Northwest 17 Washington, D.C. 18 19 20 Pursuant to notice, before Colleen Good, 21 a court reporter and notary public of 22 the District of Columbia 3 1 2 3 APPEARANCES: 4 5 For the Plaintiff, Anita Meckley, et al 6 Nurenberg, Plevin, Heller & McCarthy 7 1370 Ontario Street 8 First Floor 9 Cleveland, Ohio 44113-1792 10 216-621-2300 11 BY: ELLEN McCARTHY, ESQ. 12 13 Via Telephone 14 For the Defendant, Robert C. Oelhaf,Jr., M.D. 15 Reminger & Farchione 16 The 113 St. Clair Building 17 Cleveland, Ohio 44113 18 216-687-1311 19 BY: JOSEPH A. FARCHIONE, ESQ. 20 21 22 4 1 For the Defendant, Pamela L. Lancaster, D.O., 2 Weston, Hurd, Fallon, Paisley & Howley 3 2500 Terminal Tower 4 Cleveland, Ohio 44113 5 216-241-6602 6 BY: DEIDRA HENRY, ESQ. 7 8 For the Defendant, Ashtabula County 9 Medical Center 10 Bonezzi, Switzer, Murphy & Polito 11 Leader Building, Suite 1400 12 526 Superior Avenue 13 Cleveland, Ohio 44114-1491 14 216-875-2767 15 BY: DONALD SWITZER, ESQ. 16 17 18 19 20 21 22 5 1 2 C O N T E N T S 3 4 5 EXAMINATION OF DAVID ABRAMSON, M.D. 6 BY: PAGE: 7 MR. FARCHIONE 6 8 MS. HENRY 36 9 MR. SWITZER 130 10 MR. FARCHIONE 139 11 MS. HENRY 145 12 13 14 15 * * * 16 17 18 19 20 21 22 6 1 Thereupon, 2 DAVID ABRAMSON, M.D., 3 a Witness, called for examination by counsel 4 for the Defendant, and, after having been sworn 5 by the notary, was examined and testified as 6 follows: 7 EXAMINATION BY COUNSEL FOR THE DEFENDANT 8 ROBERT C. OELHAF, JR., M.D., 9 BY MR. FARCHIONE: 10 Q. Doctor, I have a document drafted by 11 you dated February 8th, 2001. Do you have that 12 in front of you? 13 A. I do not, no. 14 Q. Do you have any of your file in 15 front of you? 16 A. Yes. 17 Q. What do you have in front of you? 18 A. I have the medical records for 19 Mallory Meckley, both the newborn records, the 20 office records of Dr. Lancaster, the emergency 21 department records and the terminal 22 hospitalization records. 7 1 I have the sworn testimony of both 2 defendant doctors, Nurse McClure and Nurse 3 Manion and both parents. I have the autopsy 4 report. 5 I have the certificate of death and 6 then the completed certificate of death, and 7 that's all that is in my -- and I have the 8 x-rays that were taken both in the emergency 9 department and on the floor at the hospital. 10 Q. Are those the original x-rays or 11 copies? 12 A. No. I have copies of them. 13 Q. Any other materials that you have 14 reviewed, doctor? 15 A. No. There is no other materials 16 that I've reviewed other than the appropriate 17 literature for the 1999 period in terms of the 18 conditions that Mallory had and the -- and the 19 approaches to it that are acceptable. 20 Q. What literature did you refer to, 21 doctor? 22 A. I referred to the English -- 8 1 articles written only in English between 1990 2 and 1997, and I can't tell you which articles I 3 read and -- a large number of articles were 4 available. I read them on the computer screen. 5 I did not print anything out or make a record 6 of it. 7 Q. I take it what you're talking about 8 is a Med Line search? 9 A. It was either Med Line or one of the 10 universities' libraries, or National Library of 11 Medicine, yeah. 12 Q. What information were you seeking 13 through this research? 14 A. Just to make sure that I wasn't 15 trying to use some 2001 standards for something 16 that happened back in 1999. 17 Q. Were you looking for standard of 18 care information or were you looking for 19 proximate cause information? 20 A. I wasn't looking for either. I was 21 just looking to be sure that all the opinions 22 that I'll probably be asked for today were 9 1 consistent with what we thought in 1999, as 2 well as what we think in 2001. 3 Q. You mentioned that you did not print 4 up any of those articles. Did you at any time 5 print up or provide plaintiff's counsel with 6 any articles that would be relevant to this 7 case? 8 A. No to both parts of the question. I 9 did not print anything nor did I advise 10 plaintiff's counsel that I even looked at the 11 literature. 12 Q. Doctor, I represent the emergency 13 department physician in this case and there is 14 one paragraph in your report that refers to 15 him, and because you do not have it in front of 16 you I'm going to read it for you and ask you 17 some questions about it. 18 A. Ms. McCarthy just gave it to me -- 19 so I now have it in front of me. 20 Q. The third to the last paragraph that 21 begins an emergency department visit led to an 22 incomplete evaluation and failure to appreciate 10 1 the signs and symptoms of congestive heart 2 failure in an infant. 3 First of all doctor, do you believe 4 that the emergency room department physician 5 was below standard of care in this case? 6 A. I do, yes. 7 Q. How specifically was he below 8 standard of care? 9 A. By not realizing that a child with 10 the history that was presented to him needed 11 urgent evaluation by someone more knowledgeable 12 and better able to evaluate a newborn than he 13 had or that a family practitioner would have, 14 and that she really needed to be sent over to 15 Rainbow. 16 Q. Are you saying it was below the 17 standard of care to call this child's 18 pediatrician? 19 A. No. It would have been well within 20 the standard of care to call the child's 21 pediatrician had she had a pediatrician. She 22 had a family practitioner, and it was certainly 11 1 within the standard of care to call her, and he 2 should have called her and told her that he had 3 a patient of hers that needed urgent pediatric 4 evaluation and needed to be sent to the care 5 center. That would have been throughly 6 appropriate. 7 Q. What about the history do you feel 8 needed urgent evaluation by someone other than 9 a pediatrician or family practice physician? 10 A. This is a child who had undergone 11 some sweating while feeding, who had perioral 12 cyanosis, in other words central cyanosis while 13 the child was breathing, most likely cyanotic 14 congenital heart disease and also signs of 15 congestive heart failure and needed urgent 16 evaluation because she's at an age when those 17 types of children can die very suddenly 18 depending on what the lesions are. 19 Q. So the three things from the history 20 are the sweating with feeding, the perioral 21 cyanosis and the signs of congestive heart 22 failure? 12 1 A. That's correct. 2 Q. Those three things should have led 3 Dr. Oelhaf to do what? Should he have called 4 Rainbow himself? 5 A. He didn't need to do that. If he 6 had just called Dr. Lancaster and told her that 7 this baby needs to go over to the tertiary care 8 center, that would have been sufficient and 9 would have met the standards. 10 Q. Well, isn't the standard of care for 11 an emergency department physician to contact 12 the person who knows the patient better, and 13 that being the treating physician, and provide 14 the history, physical exam and whatever the 15 labs are and then the decision rests with that 16 treating physician? 17 A. That is possible -- that sometimes 18 will meet the standard of care except when 19 there is something that is so obvious as there 20 was with this baby, which is a clear history of 21 perioral cyanosis in the absence of what was 22 suspected of being -- in the presence of what 13 1 was a suspected feeding problem and also the 2 history of pallor and sweating or a clamming 3 forehead, which are classical signs of 4 congestive failure. 5 And also a prior history of a murmur 6 in the nursery and an abnormal heart sound that 7 Dr. Lancaster heard. I mean -- 8 Q. Right now I just want to focus on 9 the emergency department physician if we could, 10 okay? 11 A. The emergency department physician 12 had all of this information. He could not call 13 the attending family practitioner and say the 14 baby should come into this hospital where they 15 can't care of or evaluate a child like that for 16 observation. 17 He has to call the family 18 practitioner and say I have a patient, a 19 newborn patient of yours that needs urgent 20 evaluation. 21 If Dr. Lancaster had said well, I'll 22 come in and see her there before we send her 14 1 that would have been perfectly all right as 2 well, but this child can't get the kind of 3 evaluation that she needed in a hospital like 4 the one where Dr. Oelhaf was working. 5 Q. Signs of congestive heart failure, I 6 think you just mentioned one of two or them but 7 could you please list out what you feel from 8 the history was evidence of congestive heart 9 failure? 10 A. Taking a small amount of -- 11 appearing hungry, staring off taking a small -- 12 and then winding up taking a small amount of 13 formula or a small amount of nursing and then 14 tuckering out, going to sleep. 15 Nurse McClure's history would 16 indicate that this baby was taking between five 17 and six ounces of formula a day total which is 18 very inadequate for this child. 19 Sweating and changing colors with 20 feeding is a classical sign of congestive heart 21 failure in babies. 22 And Dr. Oelhaf never even examined 15 1 the liver or tried to feel it, made no notation 2 of that, and the x-ray that he had taken 3 clearly shows an enlarged liver so that he just 4 missed -- he missed both the physical 5 evaluation of the baby, but he didn't even 6 need to do that to meet the standard. 7 The history alone was sufficient to 8 get this baby to a neonatal unit that could 9 properly evaluate her. 10 Q. In the chart doctor it says quote 11 "abdomen soft, flat, non-tender." unquote. 12 What does that mean to you as a physician? 13 A. That means that the abdomen was soft 14 and flat and the baby didn't scream when he 15 pushed on it. He does not note the presence of 16 the kidneys, the presence of the liver, the 17 absence or presence of the spleen. 18 We can tell by the chest x-ray that 19 the liver was clearly palpable, when Dr. Condru 20 examined the baby several hours later it was 21 obviously palpable and when Dr. La -- I can't 22 pronounce her name, but the person who came 16 1 from Rainbow came, the liver was down even 2 further. That's relatively typical of a child 3 going into congestive heart failure. 4 Q. It's your opinion based upon your 5 interpretation of the x-ray that if this 6 abdomen had been palpated, the liver would have 7 been enlarged? 8 A. The liver is clearly enlarged on 9 x-ray, that's correct. 10 Q. Is it your position that Dr. Oelhaf 11 did not examine the abdomen? 12 A. I have no such opinion. All I can 13 say is that an appropriate and standard 14 examination of this child's abdomen would have 15 disclosed an enlarged liver. 16 Q. How do you interpret the chest 17 x-ray? 18 A. It's not a good chest x-ray that I 19 can interpret easily. It appears that the 20 heart is enlarged. There may be some 21 engorgement in the lungs, but the x-ray is not 22 appropriately centered and I can't read it the 17 1 way I should be able to. I would have had it 2 retaken. 3 Q. But you can't tell from that, is 4 that there is an enlarged liver though; 5 correct? 6 A. Yeah, the liver is clearly down. 7 That you can tell from the x-ray, but you can't 8 tell a great deal about both lung fields 9 because the child is rotated. 10 The heart size appears to be 11 enlarged, but again unless the film is taken 12 appropriately you can't make a definitive 13 statement about that. A simple 14 electrocardiogram would probably have given the 15 electro diagnostic data that was needed and Dr. 16 Oelhaf could have done that in the emergency 17 department and realized that the heart was 18 enlarged. 19 Q. So in your opinion did Dr. Oelhaf 20 have, and I think you've already answered it, 21 but I wasn't clear. 22 Did Dr. Oelhaf have enough 18 1 information from history and physical exam to 2 reach the conclusion you believe he should 3 have? 4 A. Yes. Yes, certainly he did. 5 Q. All right. So this is more in your 6 opinion a lack of analysis of that information 7 as opposed to a lack of history or a lack of 8 completing a physical examination? 9 A. That's correct, yes. 10 Q. What doctor in this chart do you 11 believe is inconsistent with the 12 gastroesophageal reflex? 13 A. Cyanosis in a breathing child, and 14 what Dr. Oelhaf interpreted was clear lungs. 15 The child is having reflux and aspiration then 16 you would expect the child to having periods of 17 not breathing if he were to -- if he were going 18 to get blue. 19 If it happens during periods of not 20 breathing, that's one thing. That wasn't the 21 history in this child, and the active weight 22 gain is -- and the lack of fussiness is also 19 1 not what we usually see with children with GER. 2 Q. I'm sorry you said lack of 3 fussiness? 4 A. Yes. 5 Q. What in this chart is inconsistent 6 with apnea spells? 7 A. There is no apnea. No one -- no one 8 ever reported or saw apnea. The parents never 9 reported apnea. No one has -- apnea is not a 10 consideration. 11 I don't where -- where it came from 12 in Dr. Oelhaf's mind, but certainly the mother 13 never told him that nor did the father, nor did 14 any nurse ever write it. No one ever saw this 15 child stop breathing. 16 And if the child had stopped 17 breathing then the differential diagnosis in 18 this age child rapidly includes life 19 threatening infection that must be treated 20 immediately in a tertiary care center. 21 So if apnea was a consideration then 22 apnea at this age is most likely due to a 20 1 critical infection that needs immediate 2 therapy. 3 Q. When in your opinion doctor did this 4 patient reach the point of no return? In other 5 words, the chance of survival falling below 50 6 percent? 7 A. It's very difficult to say because 8 of the sparsity of information we have during 9 Nurse McClure's watch. I believe that by the 10 time Nurse Manion got there and evaluated the 11 patient that there was no longer sufficient 12 time left to get treatment for this child that 13 would have saved her life. 14 Q. What factors would you look to to 15 make a decision as to whether or not a child 16 had a 50/50 chance of survival or a better 17 chance of survival under these circumstances? 18 A. Generally speaking, if you can get 19 the child before the child is in shock then you 20 have a very good -- with the lesions that this 21 child has, or had, then she should do fine. 22 I mean, she could be a perfectly 21 1 normal kid if they had gotten her over earlier 2 in the evening or from Dr. Lancaster's office 3 on a previous visit. 4 Q. Based on the chart can you pinpoint 5 any more directly when you believe this child 6 began to manifest evidence of shock? 7 A. No. Certainly some time in the 8 early morning, but I can't give you a specific 9 clock time. 10 Q. In terms of early morning, just so I 11 understand what you mean, are you talking 3 or 12 4 in the morning? Are you talking 6 or 7 in 13 the morning? 14 A. I think closer to 6, 7 in the 15 morning, yeah. 16 Q. Had a cardiac abnormality been 17 worked up what course of action do you believe 18 should have taken place? 19 A. It depends on when, and what the 20 status of the duct was. 21 Q. I'm sorry doctor. That was not a 22 proper -- or not phrased as good as I hoped. 22 1 In the emergency department, if things had gone 2 as you have opined what course would this child 3 have taken? What treatment would have taken 4 place? 5 A. She would have had a rapid 6 evaluation. The nature of the -- of the 7 problem would have been diagnosed and she would 8 have been taken immediately for study and 9 repair or palliation depending on what the 10 findings at cath were. 11 Q. Rapid evaluation meaning what, 12 doctor? 13 A. Probably, you know, in the emergency 14 department -- if she were somewhere else, if 15 she were where she could be evaluated you would 16 do a bedside ultrasound and this lesion would 17 have been obvious at bed side ultrasound. 18 They had already made the diagnosis 19 of coarctation of the aorta simply by taking 20 the blood pressure of the arm and leg, and 21 which is the appropriate and standard thing to 22 do. 23 1 It doesn't take a sophisticated 2 hospital to be able to do that, and when you 3 know you have a coarp with a big VSD you know 4 that you're going to need to probably do some 5 sort of open repair on that child. 6 So you proceed immediately to the 7 cath lab to the find the anatomy and then go 8 ahead and have the cardiovascular surgeon 9 decide what the best approach is at that time. 10 I would no longer be involved when 11 it comes to choosing the surgical approach. I 12 would be involved only in the general care of 13 the neonate, not in the surgical approaches. 14 Q. At Ashtabula, and prior to transfer, 15 what type of treatment would this child receive 16 in your opinion? 17 A. Probably just oxygen and maintenance 18 IV fluids. If she showed signs of closing a 19 duct in a duct dependent lesion, I don't even 20 know if they would have had the -- they would 21 have had the medications at that hospital to 22 give it, but certainly the transport team 24 1 would. So when the transport team from babies 2 got -- from Rainbow got there they would have 3 started the appropriate treatment. 4 Q. The appropriate treatment, I'm 5 sorry, including what? 6 A. Would depend on what their 7 evaluation showed and what the status of the 8 baby was at that time. 9 Q. Do you have any opinion if Rainbow 10 had presented within two hours of this 11 emergency department visit what treatment the 12 Rainbow team would have provided? 13 A. Yeah, they probably would have 14 transported her simply with oxygen and an IV in 15 place until they got back to -- got back to the 16 university and then gone ahead with the 17 evaluation. 18 Q. What is your current practice, 19 doctor? 20 A. Six or seven days a week and 21 basically an extended family practice, but I 22 see patients in all of my specialties as well, 25 1 which my specialties are pediatrics, 2 neonatology and emergency medicine. I'm board 3 certified in all of those. 4 Q. What hours do you maintain to see 5 patients? 6 A. My Maryland office, we're open at 9 7 a.m. to 9 p.m. six days a week and 9 to 5 on 8 Sunday. My District office we're open from 9 9 a.m. to 5 p.m. five days, and we're open on 10 Saturdays from 10 until 2 or later. 11 Q. Are you actually there at those 12 facilities that entire time? 13 A. Clearly I can't be in two places at 14 one time. 15 Q. I understand. One of the places 16 throughout the six or seven days? 17 A. I'm in one of the places at least 18 five days and frequently six and sometimes 19 unhappily seven. 20 Q. Do you have privileges at any 21 hospital currently? 22 A. Not on a full-time basis. Only for 26 1 consulting when I'm asked. 2 Q. What is the last hospital you were 3 asked to consult at? 4 A. George Washington University. 5 Q. How long ago was that? 6 A. Three days ago. 7 Q. What physician asked you to consult? 8 A. It was the emergency room physician 9 and I don't -- I can't remember her name. I 10 suspect that she was a resident. 11 Q. When was the last time that you went 12 to the hospital and examined a patient who had 13 been admitted? 14 A. A couple of weeks ago actually. 15 Q. What hospital was that? 16 A. I don't remember. The patient was a 17 friend of mine. I don't remember what hospital 18 he was in. 19 Q. What are the hospitals in the area 20 that it could possibly have been? 21 A. Any of the hospitals in Northwest 22 Washington I've been on the staffs at one time 27 1 or another, on the full-time staffs of almost 2 all of the hospitals in the area. 3 Q. Well, list for me if you could which 4 hospital you think that this friends of yours 5 could have been at that you went and consulted 6 with. 7 A. I can find out for you without 8 guessing so I don't need to give you a list 9 to -- it would be one of the hospitals listed 10 on my CV. 11 Q. Would you provide that information 12 to Ellen for us -- 13 A. Of course. 14 Q. -- the name of that hospital? 15 A. Yeah. You want me to research that 16 and find out for you? 17 Q. Actually I just need the name of the 18 hospital. 19 A. Okay. If I can find out quickly by 20 looking in my office records I will. If I have 21 to spend any time doing it I'll ask Ellen to 22 get authorization from you. 28 1 Q. That's fine, doctor. You have my 2 authorization to do that. 3 A. Okay. 4 Q. How was it that you consulted, were 5 you called in by a physician or did your friend 6 call you? 7 A. Called in by my friend's wife. 8 Q. Is she a physician? 9 A. She is not. 10 Q. When was the last time that you were 11 called in by a physician to consult on a 12 patient who had been admitted to the hospital? 13 A. You mean as opposed to a nurse 14 relying the physician's request, or you mean 15 directly by a physician? 16 Q. Either a physician picking up the 17 phone and calling you and saying we would like 18 you to consult or a physician saying, nurse so 19 and so please Dr. Abramson. I'd like him to 20 consult on this patient. 21 A. That's what usually happens. If you 22 want a date and time I would need to review 29 1 records to find that out. I don't recall 2 specifically offhand. 3 Q. I would appreciate it if you could 4 provide us with that information as well. 5 A. That would require going through 6 several hundred patient records, but I can do 7 that if you want me to spend that time. 8 Q. Can you recall what hospital in the 9 past year you have been called in by a nurse or 10 a physician to consult on a patient? 11 A. No, and I could not do that without 12 reviewing patient records. 13 Q. When was the last time you practiced 14 as an emergency medicine attending? 15 A. Yesterday. 16 Q. What hospital did you work at? 17 A. I was in my own office which is the 18 designated emergency center for most of the 19 area HMO's and PPO's and all of those things. 20 Q. What is the name of that center? 21 A. Farragut Medical and Travel Care in 22 Washington, and Convenient Health Care in 30 1 Maryland. 2 Q. Travel Care, I think I've read in 3 the past that deals with people who are about 4 to travel or are coming into the country and 5 immunization, is that correct or am I mistaken? 6 A. That's one of the aspects of most of 7 our travel at that center is people from other 8 part of the world who become ill here in 9 Washington frequently with some relatively 10 strange conditions and those will almost always 11 wind up in my office. 12 Q. Doctor, your license has been 13 reinstated I understand; is that correct? 14 A. My license has always been instated. 15 It's never been uninstated. 16 Q. Then you describe for me what 17 happened to your license. 18 A. I was fined and reprimanded for 19 alleged false representations on my curriculum 20 vitae. Wrongfully accused of that. 21 Q. You did sign a consent order 22 indicating that you were acknowledging that 31 1 that indeed was accurate? 2 A. I was acknowledging that those were 3 the findings by the administrative law judge, 4 yes. 5 Q. Did you appeal that? 6 A. I did but the District of Columbia 7 either destroyed or conveniently lost the 8 records so that they could not be presented to 9 the appeals court and I voluntarily withdrew my 10 appeal. 11 Q. Why did you not ask for the entire 12 thing to be dismissed because the prosecution 13 had lost the record? 14 A. Because with an administrative body 15 they always get the benefit of the doubt when 16 there is doubt. The appeals court would only 17 have remanded it to another trial. 18 And when -- given what happened with 19 the first hearing I saw no reason to try and do 20 it again. These were people who wanted to be 21 besmirch my reputation. They now acknowledged 22 that what they said and what they wrote was 32 1 false, and we're in current negotiations to 2 make that right. 3 Q. Who has acknowledged that what they 4 have said is false? 5 A. The board of medicine. 6 Q. Who on the board of medicine? 7 A. I don't know. It's only been done 8 through counsel. 9 Q. Is there anything in writing that 10 says that the -- from the board of medicine 11 saying we were wrong and you were right? 12 A. I don't know the answer to that. I 13 have not -- I'm instructed not to speak about 14 that. So I'm not going to talk about it. 15 Q. What process -- I don't what to know 16 the specifics, but what process is going on. 17 Are you suing them. Are you filing some type 18 of action? 19 A. I'm instructed not to discuss that, 20 and on advice of counsel I won't discuss that. 21 Q. On the advice of Ellen or advice of 22 another counsel? 33 1 A. On advice of my counsel. Ellen is 2 not my counsel. 3 Q. Which medical board are you dealing 4 with? 5 A. Initially only D.C., but eventually 6 all -- all of the boards that acted 7 reciprocally with the district's outrageous 8 conviction. 9 Q. And it's your position that what you 10 signed is not accurate? 11 A. I'm sorry. What I signed is not 12 accurate? 13 Q. Yes. 14 A. What I signed is accurate. I 15 acknowledged what the findings of the D.C. 16 board were. 17 Q. But in terms of the findings 18 themselves you do not believe that they are 19 accurate? 20 A. One record 100 percent it always is 21 saying that they are inaccurate and fallacious. 22 Q. Have you had any privileges at any 34 1 hospitals that have been revoked, suspended or 2 curtailed in any way? 3 A. No. 4 Q. What are you current charges for 5 reviewing a case and for deposition? 6 A. $400 an hour for time spent in 7 review and $4,000 a day for time spent in 8 giving testimony. That's divisible by half 9 days for depositions if they're done in my 10 office. 11 Q. You're charging $2,000 for this 12 deposition; is that accurate? 13 A. Yes. 14 Q. And trial time would be $4,000 a day 15 as well? 16 A. That's correct. 17 Q. In a given year doctor what -- or 18 over the years rather what is the most that you 19 would estimate you have made from medical legal 20 review? 21 A. I don't know. It's not kept 22 separate from my -- from my professional fees 35 1 and anything that requires that I be a 2 physician is all grouped as professional fees. 3 So I don't know. I know the percentage of my 4 time that it takes and -- 5 Q. What percentage of your time does it 6 take? 7 A. Now it's less than 5 percent. At 8 one time it was as high as 8 percent. 9 Q. How would you know 8 percent 10 precisely? Do you keep some type of records? 11 A. I did for a quarter of a year I kept 12 every 15 minute records of what I worked on and 13 all of those things that were not directly 14 related to the care of my patients but were 15 professional, took 8 percent of my time. 92 16 percent of my professional time was spent 17 taking care of patients directly. 18 Q. One moment, doctor. What is World 19 Med.MD? 20 A. That's a doing business as name for 21 a package of protective services for travelers. 22 Q. Is that your group or someone 36 1 else's? 2 A. That's my group. 3 MR. FARCHIONE: That's all I 4 have. I think Deidra has some questions and 5 then Don will probably have some. 6 EXAMINATION BY COUNSEL FOR THE DEFENDANT, 7 PAMELA L. LANCASTER, O.D. 8 BY MS. HENRY: 9 Q. I do doctor. My name is Deidra 10 Henry. I present Dr. Lancaster in this matter. 11 Can you please tell me if there is in article 12 or text that you consider to be generally 13 reliable and that you relied on in any way in 14 giving your opinions in this case? 15 A. No. There is not anything I can 16 quote for you chapter and verse. Obviously 17 some of the things that I've learned over the 18 years that I've been practicing medicine have 19 been gotten from the literature and from texts 20 and that sort of thing, but I have no 21 recollection as to where specifically my 22 information that I'm relying on in this case 37 1 has come from. 2 Q. Just so I'm clear then doctor, you 3 do not intend when this case goes to trial that 4 say that you consider a particular text or a 5 specific article generally reliable or 6 authoritative? 7 A. No, I have no intention of doing 8 that unless someone were to give me an article 9 and ask me to evaluate it and then I would give 10 an opinion on it. 11 Q. Have you been given any articles by 12 plaintiff's counsel to review for this case and 13 give your opinion on it? 14 A. No, ma'am. 15 Q. Did you rely on any specific article 16 that you looked at in your computer search in 17 giving your opinions in this case? 18 A. No, ma'am. 19 Q. What citation or search did you put 20 into the computer in order to pull up the 21 information you reviewed? 22 A. Probably 15 or 20 different ones. I 38 1 can't recall them now, that would have looked 2 at all the different aspects of this case. 3 Q. Now doctor, I'd like to ask you a 4 little more about your current practice. You 5 told me that -- you told us that at one time 6 you had admitting privileges at various 7 hospitals; correct? 8 A. Yes, ma'am. 9 Q. And in the last 10 years what 10 hospitals have you had admitting privileges at? 11 A. On a full-time basis I don't believe 12 I've had full-time privileges at any hospitals 13 in the last 10 years for purposes of admission. 14 Q. When you say full-time privileges 15 what do you mean, doctor? 16 A. Full-time privileges are hospitals 17 to which you admit more than 10 patients a 18 year, pay dues, sit on committees, come to 19 quarterly staff meetings and contribute to the 20 hospital's general life by virtue of its -- 21 through it's medical staff. I don't do that 22 any longer. I did that for many, many years, 39 1 but I don't do it any longer. 2 Q. How many years have you been in 3 practice, doctor? 4 A. Just over 30 I believe. 5 Q. In the last 10 years if one of your 6 patients that you saw in an outpatient setting 7 had to be admitted to the hospital and taken 8 care of in the hospital could you do that? 9 A. The answer is i could. I very 10 rarely have chosen to do that because my 11 practice is both geographically so diverse 12 geographically, and my travel is so extensive, 13 but I certainly can do that. 14 If I want to do that I would need to 15 get specific privileges to do that and whatever 16 hospital it is that I wanted to admit the 17 patient to. 18 Q. So for the last 10 years if you 19 wanted to admit any one of your patients that 20 you saw at any one of your offices into the 21 hospital for any kind of ongoing care you would 22 have to have special privileges from that 40 1 hospital to do that; true? 2 A. That's correct. 3 Q. Well, who takes care of your 4 patients if you admit them to any one of the 5 hospitals in the areas where you have 6 privileges? 7 A. One of my colleagues who spends time 8 on that hospital staff. 9 Q. When you say one of your colleagues 10 do you mean somebody who works at one of your 11 offices or are you just saying somebody 12 generally in the medical community that you 13 know that has privileges? 14 A. Someone who feel I would be 15 appropriate for the patient that I want -- for 16 the patient that I'm admitting and for what I 17 believe the patient needs. 18 That's the standard that you have to 19 do when you turn a patient over -- a patient's 20 care over to another physician. It's got to be 21 a physician that you believe by skill and 22 training and location, if I will, is able to 41 1 meet the needs of the patient. 2 Q. All right, that really didn't answer 3 I guess the question. I probably put it to you 4 wrong. Convenient Health Care that's the name 5 one of the entities that you work with? 6 A. Yes. 7 Q. Tell me what is convenient health 8 care? 9 A. It's an extended family practice, 10 and it is the primary caregiver for 11 virtually -- or for almost all of the area 12 HMO's and PPO's and PPD's. Those kind of 13 things. 14 Q. What area HMO are we talking about? 15 A. I think that there are now like 16 thirty or forty of them. I can't even remember 17 their names. 18 Q. Give me one name of an HMO that your 19 group is the primary caregiver for? 20 A. I have to look and see what we're 21 designated for each of them. From some of them 22 we're emergency care. For some we're primary 42 1 care, and for many we're both, but I can't 2 remember that off the top of my head. 3 Q. I don't want you -- I'm not asking 4 you to tell me which is which. Why don't you 5 just give me the name of the HMO and the PPO's 6 that you know that Convenient Health Care is 7 designated for to do any services? 8 A. Again, I would not even say a single 9 name without consulting a list and being sure 10 that I was 100 percent accurate. 11 Q. Doctor, who owns Convenient Health 12 Care? 13 A. I do. 14 Q. And who is the president of? 15 A. Dr. Steven Wiggins. 16 Q. What is your position with 17 Convenient Health care? 18 A. I'm either chairman of the board and 19 secretary. I don't know what my position is. 20 Q. And you're telling me that for 21 Convenient Health Care you are prepared as the 22 owner of that and as somebody that practices 43 1 with it continuously you're not prepared to 2 give me the name of even a single HMO or PPO 3 that Convenient Health Care is either 4 designated for general family -- extended 5 family practice or emergency services. Is that 6 correct? 7 A. That's correct. Not without 8 consulting the list and being sure that the -- 9 those designations were current and absolutely 10 up to date. 11 Q. And I'm sure if I ask you to do that 12 you're going to charge me money to do that, is 13 that right? 14 A. Of course. 15 Q. I see. Now, with Farragut Medical 16 and Travel Care you told me that that -- or you 17 told Mr. Frachione that that entity provides 18 services like emergency services? 19 A. That's correct. 20 Q. Tell me who owns Farragut Medical 21 and Travel care? 22 A. I do. 44 1 Q. Are you the sole shareholder? 2 A. I don't know the answer to that. 3 Q. What is your position with that 4 company? 5 A. I'm the medical director. 6 Q. How many doctors -- do you have 7 employees for Farragut Medical and Travel Care? 8 Physician employees? 9 A. Yes. 10 Q. How many physician employees do you 11 have? 12 A. There is always at least one 13 physician on duty whenever it's open. I gave 14 the hours earlier, and frequently two 15 physicians on duty. 16 Q. My question is, is how many 17 employees that are physicians does Farragut 18 Medical and Travel Care have on their books? 19 A. I'm not going to discuss my business 20 with you. I don't think you have any right or 21 reason to inquire into that. I'll discuss the 22 time I spend there with you and the nature of 45 1 my practice and my patient care, but I'm not 2 going to discuss the business aspects of my 3 practice with you. 4 Q. So who is manning Farragut Medical 5 and Travel Care today when you're giving this 6 deposition? Doctors who are on staff there? 7 A. A qualified physician as always 8 and -- is always in the office. 9 Q. What doctor is there right now 10 providing care for Farragut Medical and Travel 11 Care since you're not there. What is the 12 doctor's name? 13 A. Right now the office is closed. I 14 am the doctor on call for right now. 15 Q. Did you work there today? 16 A. No, I did not. 17 Q. Who was the doctor on staff today to 18 care for patients who came for care to Farragut 19 Medical and Travel care office? 20 A. I don't know whether there were 1, 2 21 or 3, and I don't know which ones they were. 22 Q. All right, doctor. How many 46 1 employees is there for Convenient Health Care? 2 A. It's none of your business. 3 Q. Is the a corporation? 4 A. I don't believe so but I'm not 5 certain. 6 Q. Is it a PA? 7 A. I don't know. 8 Q. Pardon? 9 A. I don't know. 10 Q. You own it and you don't know what 11 its status is? 12 A. That's correct. 13 Q. Is Farragut Medical and Travel Care 14 a corporation? 15 A. No, it's not. 16 Q. What is it? 17 A. I don't know what diction of law it 18 is. 19 Q. How much time do you spend as a 20 seasoned world travel specializing in global 21 medicine for the business executives, 22 diplomate, volunteer, echo traveler or 47 1 adventurer? 2 A. I don't think I understood the 3 question. I mean, I know where your quote 4 comes from the -- but I don't understand the 5 question that you asked. 6 Q. How much of your year is spent being 7 the seasoned world traveler specializing in 8 global medicine? 9 A. I think 100 percent of the time I am 10 a seasoned world traveler and one of my 11 specialities is global medicine. 12 Q. Well, what -- 13 A. That's always. 14 Q. -- global medicine? 15 A. That means health considerations 16 that are occasioned by moving across -- or 17 around the surface of the earth. 18 Q. What specialized medical training do 19 you have that makes you -- or what ongoing 20 training do you have that makes you specialized 21 in this area? 22 A. Probably do about 80 hours of 48 1 continuing medical education in travel medicine 2 each year. I guess that's what you want to 3 know; right? 4 Q. Yeah, I want to know. I mean, 5 you're not -- you have a -- is there a 6 specialty in the medical field that deals with 7 global medicine or medicine involving travel 8 across and around the globe? 9 A. Yeah, we're right now in 10 consideration of making it an actual board, but 11 at the moment it is not an actual board. 12 Q. So you said we're in consideration 13 making it a board, who is the we? The we're? 14 A. Those of us in the world that 15 practice that specialty. 16 Q. And under -- how would you get that 17 to be made a specialization or a certification? 18 A. The same way we did with emergency 19 medicine and the same way we did with newborn 20 and perinatal medicine. We would apply through 21 the American Board of Medical Specialities for 22 recognition as a board, designate training 49 1 programs and set criteria for passage of them 2 and ask them to recognize that as a new board. 3 Q. Convenient Health Care and the 4 Farragut Medical and Travel Care do you provide 5 services, medical services to anyone who is not 6 with an HMO or a PPO? 7 A. Yes. 8 Q. And you said -- I think you said 9 something about your -- those groups are 10 certified as emergency -- maybe I can find the 11 language -- you said something like they're 12 certified as emergency -- 13 A. I said they were the designated 14 emergency care centers for most of the area 15 HMO's and PPO's. 16 Q. How do you define an emergency care 17 service? 18 A. I don't. 19 Q. Well, what do you mean by that term? 20 A. It's their designation, not mine. 21 They instruct their patients that when they 22 can't reach their primary doctor or when they 50 1 have something after hours or on the weekends 2 or something like that, that they should come 3 to one of my offices for their emergency care. 4 Q. Sort of like an urgent care center; 5 right? 6 A. Yes. Certainly like an urgent care 7 center. 8 Q. But it's certainly not an emergency 9 room like you find in a hospital, true? 10 A. It has more similarities than 11 differences to a hospital emergency room than 12 to anything else. 13 But, it does have some differences 14 in that there are not all of the hospital 15 services available and there are no in-patient 16 beds at any of my facilities. 17 Q. Give me the address of your offices 18 for the Convenient Health Care. 19 A. They're all in my CV. I think 20 you've already got a copy of that. 21 Q. Well, I don't actually have that, 22 doctor, so if you want to give me the addresses 51 1 of your Convenient Health Care I would 2 appreciate it. 3 A. Okay. I'll make a copy of that -- 4 I'll make a copy of that CV available to you 5 through counsel and that lists all of my 6 offices and their addresses and phone numbers 7 and those things. 8 Q. How many are there? 9 A. There are three. 10 Q. So your charge is $2,000 -- or 11 $4,000 I guess for this depo, is that it? Or 12 $2,000 for this. I'm thinking it's time for 13 you to give me the addresses for those. 14 A. One is 540 Old Line Center, Waldorf, 15 Maryland. One is 815 Connecticut Avenue, 16 Northwest, Washington, D.C. and one is my home 17 office at 5035 Garfield Street, Northwest in 18 Washington, D.C. 19 Q. You have patients come to 5035 20 Garfield Street at your home? 21 A. Yes, ma'am. 22 Q. Pardon? 52 1 A. Yes, ma'am. 2 Q. Okay. And Farragut Medical and 3 Travel Care. How many offices do you have for 4 that? 5 A. There is two physical offices but 6 only one of those is for seeing patients. 7 Q. Where are they located? 8 A. One is at 815 Connecticut Avenue, 9 and the other address I don't know. It's a new 10 office in Virginia and I don't know the address 11 of it. 12 Q. So Convenient Health Care and 13 Farragut Medical and Travel Care both share the 14 815 Connecticut Avenue address; right? 15 A. No, ma'am. Convenient Health Care 16 does not share that address. 17 Q. Did you give me a Connecticut Avenue 18 address for Convenient? 19 A. No. That's for Farragut Medical and 20 Travel Care. 21 Q. The 540 Old Line is Convenient? 22 A. That's correct. 53 1 Q. And 5035 Garfield Street is for 2 Convenient? 3 A. That's for any of the offices for 4 which I want to see patients. That's my home 5 office and I can assign those patients or they 6 may come from any of my other offices. 7 Q. 815 Connecticut is Farragut? 8 A. That's correct. 9 Q. So you have three offices and this 10 new one whose address you can't recall? 11 A. That's correct. 12 Q. Okay. Have you -- were you asked to 13 give up your privileges at any hospital? 14 A. No, ma'am. 15 Q. Tell me what the -- you say there 16 were false accusations lodged against you that 17 resulted in you being fined and reprimanded. 18 What was the specific claim of the false 19 representation? 20 A. There were I believe three. One was 21 that I had indicated on my CV that I had 22 received a Ph.D. and I never had done that. 54 1 Q. A Ph.D. in what? 2 A. Physiology for which I have 3 completed the work with honors but my mentor 4 died, so that he could not defend my thesis. 5 Q. So did you actually receive a Ph.D. 6 from any university? 7 A. No. I just earned all of the 8 credits with honors. 9 Q. Okay. What was the second claim? 10 A. The second one was that I was not 11 apparently officially a member of the 12 Department of Obstetrics and Gynecology at 13 Georgetown University as I had claimed on my 14 CV. 15 I had and have the letter appointing 16 me to that position by Dr. Paul Bruns, and a 17 notification by him to make it effective 18 immediately and the advertisements of the 19 university advertising me in that position. 20 But at the time Georgetown 21 University had a rule in place whereby you 22 could not be a member of two full-time 55 1 departments at the same time. 2 And since my primary appointment was 3 as a professor of pediatrics I could not be 4 officially appointed to the Department of 5 Obstetrics and Gynecology. 6 Q. What time frame are we talking about 7 here, doctor? 8 A. I believe all of it is before 1984, 9 because that was the time of allegation. So it 10 was before 1984. 11 Q. The third one was what? 12 A. The third one was -- I believe the 13 third one had to do with hospital privileges 14 whereby as in all large cities and with most 15 universities, as you do in Cleveland as well, 16 when you're on the full-time staff, or the 17 teaching staff of the university hospital which 18 has an affiliation with the hospital then you 19 have privileges automatically to see and treat 20 patients in that designated teaching hospital 21 as a member of the faculty. 22 And for years I did not put on CV 56 1 which all of those hospitals were, and then 2 lawyers like yourself kept asking me what 3 hospitals have you seen patients, then I listed 4 all of them. 5 Then they decided that since I had 6 not individually applied to those hospitals 7 that that was a misrepresentation on my CV. 8 Q. And what time frame are we talking 9 about with regard to that, that's before '84 10 also? 11 A. That was before '84 also, yes. 12 Q. So you had a reprimand and a fine, 13 and were there any other conditions put in 14 place for you to have your license in effect? 15 A. No. 16 Q. No? 17 A. No. 18 Q. Okay. Now, you said that you last 19 went to see a patient in the hospital recently 20 and it was a husband of a friend of yours? 21 A. That's correct. 22 Q. But you had consulted or went to 57 1 evaluate or exam a patient in the hospital and 2 it was a patient who was the husband of a 3 friend of yours; correct? 4 A. That's correct. 5 Q. You can't remember who that was and 6 where you went to see this person, is that what 7 you're telling us? 8 A. That's correct. I can't remember 9 which one -- which one it was. I've gone to 10 see several people in several hospitals, but 11 unfortunately I had several dear friends in the 12 hospital -- in hospitals within the past month, 13 and I can't remember which on I was 14 specifically asked to see for a consult. 15 Q. Now this request for a consult, that 16 was a request made by the wife? 17 A. That's correct. 18 Q. And you were permitted to go in and 19 do a consult on the patient? 20 A. Yes, of course. 21 Q. Did you make a note in the patient's 22 chart regarding your consult? 58 1 A. I don't specifically remember. I 2 would have to go and pull the chart and see. I 3 certainly have made notes in patients charts in 4 the last month, but I don't know if I did on 5 that particular patient or not. 6 Q. Do you have any private practice in 7 Pennsylvania? 8 A. No. I have some patients who live 9 in Pennsylvania, but they come here to see me. 10 Q. Do you have any private practice in 11 New York? 12 A. Yes. I have mutual patients in New 13 York, but most of them come here to see me as 14 well. 15 Q. Do you have any offices and are you 16 licensed to practice in New York? 17 A. Yes, I am. 18 Q. You're licensed, do you have an 19 office in New York anywhere? 20 A. I am licensed, but I do not have a 21 current office. 22 Q. So any patients in New York, 59 1 Pennsylvania or any of the other surrounding 2 areas that would say your patients come to see 3 you in one of the current offices you have in 4 the Washington, D.C. or Maryland area; correct? 5 A. Or I may see them in a colleagues 6 office in New York or something like that. 7 Q. Are you published, doctor? 8 A. Yes. 9 Q. Do you have publications on anything 10 that you believe is relevant to the issues in 11 this case? 12 A. I don't know the answer to that. I 13 will -- I'm going to make a CV available to you 14 through counsel and you can read through them. 15 I haven't. 16 I'm sure a lot of them have to do 17 with examination of the newborn and especially 18 cardiovascular examination of the newborn, but 19 I don't recall which those are at this time. 20 Q. Do you have your CV there? 21 A. No, I don't. 22 MS. HENRY: Ellen, do you have 60 1 his CV? 2 MS. McCARTHY: No, I don't. 3 BY MS. HENRY: 4 Q. Do you currently teach? 5 A. Yes. 6 Q. What medical school are you 7 affiliated with that you teach with? 8 A. Howard University. 9 Q. Howard university? 10 A. Yes. 11 Q. And what is your position with 12 Howard University? 13 A. I'm an Associate Professor of 14 Obstetrics and Gynecology. 15 Q. Does obstetrics and gynecology 16 include pediatrics? 17 A. Not that I'll -- certainly not that 18 I'm aware of, although there certainly are 19 pediatric patients who get pregnant and 20 virtually, or nearly all pregnancies wind up 21 with a pediatric patient -- with one or more 22 pediatric patients, but other than that I don't 61 1 believe you would consider that it includes 2 pediatrics. 3 Q. How are you qualified to be an 4 Associate Professor of Obstetrics and 5 Gynecology if you didn't do a residency in that 6 area, or did you and I just don't know it? 7 A. I did not, and the reason for that 8 is that there is so much overlap between both 9 emergency medicine and pediatric and perinatal 10 medicine with obstetrics and gynecology that 11 they want me to teach their residents along 12 those lines. 13 Q. When is the last time you actually 14 worked in an emergency department? 15 A. I told you, yesterday. 16 Q. In a hospital. 17 A. I saw one of my patients in an 18 emergency department last week, but I haven't 19 done shifts in an emergency department in a 20 hospital or on a routine basis since the early 21 '90s. 22 Q. Well, when you saw your patient in 62 1 the emergency department would I be correct if 2 I assumed the attending emergency department 3 physician notified you your patient was there 4 and that's how you came to see the patient, or 5 did the patient just call you? 6 A. No. I believe it was a resident. 7 Q. Now, Howard University, how many 8 hours a week do you spend teaching? 9 A. The teaching is clinical. They send 10 residents to rotate through my office and 11 they're five days a week, I believe seven 12 months a year. 13 Q. And which offices do they come to to 14 rotate through? 15 A. Currently it's only at Farragut. 16 Q. So there is somebody that is in the 17 Farragut Medical Offices who is a resident 18 several months out of the year, how many days a 19 week? 20 A. Five days a week. 21 Q. Five days a week, and how long have 22 you been doing this with Howard University? 63 1 A. It started last year. I'd have to 2 look back to see exactly what my -- 3 Q. When did it start? Last year, I'm 4 sorry? 5 A. Yes. It started last year. 6 Q. Sometimes you drop your voice and on 7 this end I can't hear you very well. 8 A. I'm sorry for that. 9 Q. That's all right. Do you belong to 10 any services that provide your name as an 11 expert or a potential expert? 12 A. Just my speciality boards. The 13 American Academy of Pediatrics, the American 14 Board of Emergency Medicine and the sub board 15 of Newborn Perinatal medicine. 16 Q. Are you telling me that those 17 specialties or boards provide your name as an 18 expert for medical malpractice cases? 19 A. You didn't say for medical 20 malpractice. You said as an expert. They 21 provide the knowledge to anyone who wants the 22 knowledge that I am an expert in those fields 64 1 of medicine. 2 Q. Anyone who is board certificated in 3 any of those areas is considered to be an 4 expert in those areas; correct? 5 A. If you're asking a legal question I 6 don't know the answer. I'm not a lawyer. If 7 you're asking a medical question, current board 8 certification should guarantee patients that -- 9 that we have some expertise in that field. 10 Q. So when you say that the American 11 Board of Pediatrics gives your name out as an 12 expert in the area of medicine, they could give 13 anybody else's name who is board certified 14 currently in addition to yours of someone who 15 is an expert in the area; correct? 16 A. I would hope so, yes. 17 Q. Now, as to medical legal testimony, 18 do you belong to any services that provide your 19 name to attorneys as a potential expert? 20 A. No, ma'am, not that I know of. 21 Q. How many cases do you review a year? 22 A. I don't know the answer to that. 65 1 It's probably one or two a month. 2 Q. In your report you indicate that -- 3 if you look at it, on paragraph two it says she 4 developed the classic symptoms of early 5 congestive heart failure. Do you see that 6 statement? 7 A. Yes. 8 Q. Tell me what you consider to be the 9 classic symptoms of early congestive heart 10 failure? 11 A. Feeding difficulties, sweating, 12 color changes with feeding especially would be 13 the classic early changes, and she had abnormal 14 heart sounds. 15 Q. On the December 28th visit to Dr. 16 Lancaster's office, do you say that Mallory 17 Meckley had any of the class -- what would you 18 consider to be classic signs of congestive 19 heart failure? 20 A. Well, she had -- when Dr. Lancaster 21 saw her she also was told that she was bluish 22 around the mouth and if you're bluish around 66 1 the mouth and you have an abnormal heart sound 2 you better get investigated right away for 3 cyanotic congenital heart disease. 4 Q. Doctor my question was, on December 5 28th, at the time of the visit to Dr. 6 Lancaster, which of the classic signs and 7 symptoms do you say there are -- congestive 8 heart failure did she exhibit? 9 A. I don't know. The record will speak 10 for itself, and I wasn't there, but I believe 11 that she was reported to burp poorly. 12 Dr. Lancaster did not find out what 13 kind of total feeding she was having, nor the 14 number of wet diapers she was having. 15 She did know that she had regained 16 her birth weight by two weeks of age, and the 17 mother felt that she was having problems 18 feeding the baby. 19 And she also had been noticed to be 20 blue around the mouth, and had not stopped 21 breathing at that time. 22 That's -- and Dr. Lancaster further 67 1 knew that the nurses had heard a murmur in the 2 nursery, which she was not able to hear, or 3 which was gone by the time she examined the 4 baby. 5 And that she had heard an abnormal 6 heart sound, or some kind of click in the 7 baby's chest. So that was more than enough 8 historical and physical evidence to go ahead 9 and get this baby evaluated by someone capable 10 of doing a proper evaluation for a newborn. 11 Q. Doctor, you have your chart there 12 that includes the medical record. Would you 13 please take out Dr. Lancaster's office records? 14 A. Okay. 15 Q. Tell me from -- well, first of all, 16 do you believe that Mallory Meckley had any of 17 what you'd call classic symptoms of early 18 congestive heart failure at the time she was 19 evaluated in the newborn nursery while still in 20 the hospital? 21 A. No, I don't. 22 Q. Okay. So then let's look at the 68 1 December 28th visit, tell me what you see that 2 tells you that this child has what you consider 3 to be classic signs and symptoms of congestive 4 heart failure? 5 A. If we look at what Dr. Lancaster 6 wrote at the time of admission -- 7 Q. Doctor, look at the December 28th 8 office record. That is all I want you to look 9 at right now. 10 A. Okay. I don't have that in front of 11 me at the moment. 12 Q. Can you get it out? 13 A. Okay. I've got it. 14 Q. All right. My question again is, on 15 the December 28th visit to Dr. Lancaster, what 16 classical signs or symptoms of congestive heart 17 failure, according to you, did Mallory Meckley 18 exhibit? 19 A. According to what was -- according 20 to what was written, the baby was having hands 21 blue a lot, feet blue, was having raspy 22 breathing, mouth bluish around, bowel movements 69 1 normal. 2 That's what I see written here, and 3 doesn't burp is written down as well. That's 4 all that I see. 5 Q. What do you see in the typed parts 6 of it? 7 A. In the typed part -- 8 Q. Well, wait a minute doctor, my 9 question is specifically, just give me what you 10 see in either the handwritten or the typed 11 record for 12/28/98, the signs and symptoms 12 that you say are classic for congestive heart 13 failure? 14 A. Okay. Raspy breathing, mouth bluish 15 around -- she's got Doppler heart sound, and 16 the other important data is missing. 17 Q. The nurse was told by the mother 18 that this baby ate one and a half ounces every 19 three to four hours of Similac with iron. Do 20 you consider that to be a feeding problem? 21 A. It may be. It depends on what she 22 does at night and whether or not that is every 70 1 three to four hours around the clock, or every 2 three to four hours when awake and what her 3 sleeping pattern is. 4 Disturbance in sleeping pattern is 5 also common with congestive heart failure and 6 how the baby feeds is characteristic of babies 7 with congestive heart failure in that they will 8 get very hungry and tire very quickly when they 9 start to -- when they start to eat, and how 10 much total formula the baby is taking each day 11 is a critical question that wasn't asked by Dr. 12 Lancaster or recorded. 13 Q. So you're assuming that one and a 14 half ounces at a feeding which is every three 15 to four hours, doesn't indicate that she feeds 16 that much around the clock every three to four 17 hours? 18 A. We need to know what her total 19 intake is. Is it six ounces a day? Is it 12 20 ounces a day? Is it 30 ounces a day? That 21 wasn't asked -- we don't know how may wet 22 diapers she has. So we have no way of 71 1 assessing what her fluid intake is and what her 2 output is. 3 Q. Let's assume doctor one and a half 4 ounce very four hours. How many ounces is that 5 a day? 6 A. That would be nine ounces a day. 7 Q. And do you consider that to be a 8 feeding problem? 9 A. That may be a feeding problem. It 10 may not be a feeding problem. 11 Q. What do you mean it may or may not 12 be a feeding problem? 13 A. Well, it just barely meets her fluid 14 requirements at that age. It's 270 cc's a day 15 and she needs 100 cc's a day per kilogram of 16 body weight. So that would just about meet her 17 fluid requirements, but depending on what the 18 formula concentration was and Dr. Lancaster 19 didn't know what the formula concentration was 20 when she was deposed would depend on whether or 21 not it was adequate choleric intake for her. 22 Q. What is the formula concentration of 72 1 over the counter Similac with iron? 2 A. It comes in at least three different 3 concentrations. 4 Q. What are they? 5 A. 24 ounces -- 24 calories per ounce. 6 20 calories per ounce and it can be made with 7 10 calories per ounce. 8 Q. What is the -- what is normally 9 recommended to mother when they're 10 discharged -- or the baby is discharged from 11 the nursery? 12 A. To feed by breast. 13 Q. Well, if they're not going to feed 14 by breast what is the normal formula 15 concentration for Similac with iron that 16 they're told to get? 17 A. Most patients who are either -- 18 they're supplementing or feeding exclusively 19 would use 20 calories per ounce. 20 Q. And you said disturbance of sleep 21 pattern might be indicative of congestive heart 22 failure; true? 73 1 A. Yes. 2 Q. What do you mean by disturbance of 3 sleep pattern? 4 A. A baby who starts to eat and then 5 falls asleep and then wakes up and is hungry 6 again and does the same thing. 7 Q. Isn't that the same thing as how 8 they feed, whether they get hungry and tire out 9 quickly? 10 A. Yes, but that creates a disturbance 11 in sleep pattern as well. There is no 12 protracted longest sleep period during the day 13 then. 14 Q. How long do you newborns of this age 15 normally sleep before they need to be fed again 16 or before they awake to be fed again? 17 A. It depends, most babies by two weeks 18 of age who are feeding normally will have a 19 slightly longer period of sleep at one time 20 during the day, but somewhat influenced by time 21 of birth by two weeks, but usually becomes at 22 night. It depends on how much stimulation they 74 1 get during the daylight hours. 2 Q. Well, what is the normal -- the 3 longest time they're going to sleep at this 4 age? 5 A. Five to six hours. 6 Q. That's usually at night you're 7 saying? 8 A. It depends on the parent's schedule 9 and when the baby gets the most stimulation. 10 Q. How do you know if the baby -- you 11 said it depends on how they feed and whether 12 they wake up very hungry and then tire quickly 13 as they're feeding; true? 14 A. That is one of the patterns that 15 babies in congestive failure will manifest, 16 yes. 17 Q. How do you know that they're really 18 hungry? 19 A. You know by a variety of ways. One, 20 they usually sense real hunger as a discomfort 21 and cry. Most babies cry when they're hungry, 22 even before they're conditioned that they'll be 75 1 fed by crying. 2 They also will suck very avidly when 3 they're hungry. If they're not very hungry and 4 you offer them something to suck on, they 5 usually will suck because they have a reflex to 6 do that, but not very avidly and not very 7 quickly. 8 And that's one of the ways that you 9 can judge the voraciousness of the appetite of 10 a newborn. 11 Q. What did you see in the deposition 12 that told you anything about whether this baby 13 fed normally? 14 A. I don't know if it was in the 15 depositions or not, but I believe in Nurse 16 McClure's hospital notes she noted that the 17 baby took just a half an ounce and then fell 18 asleep and that that had happened at home as 19 well. 20 Q. At the time -- 21 A. It may have been in the mother's 22 deposition. I'm not sure. 76 1 Q. You said that there was also 2 sweating -- she didn't have sweating at the 3 time of her visit on December 28th to Dr. 4 Lancaster did she? 5 A. No, she did not. That was at the 6 time of the visit to the hospital. 7 Q. You gave us the classical signs and 8 symptoms of early congestive heart failure, you 9 didn't mention anything about raspy breathing; 10 true? 11 A. That's true. That is non 12 specific -- all the findings are non specific 13 and all need to be put in the context of a 14 given baby. There are no signs and symptoms 15 that are diagnostic of congestive heart 16 failure. That's a -- describe the physiologic 17 state. 18 Q. What specifically do you mean? 19 A. Pardon me? 20 Q. When you use the term raspy 21 breathing in relation to congestive heart 22 failure, what do you specifically mean? 77 1 A. The answer to that is I don't know. 2 There is a breathing disturbance that exists 3 sometime around feeding that doesn't exist at 4 other times. 5 And there is no evidence in the 6 lungs of any residual from something getting 7 into the lungs. Now, that could be because 8 eating of course is tremendous strain on the 9 baby's heart, and if the baby is in marginal 10 state of failure or in marginal cardiac 11 compensation and you start feeding the baby and 12 the baby suck very avidly and is hungry, that's 13 enough to switch the baby over into a state of 14 cardiac decompensation, congestive heart 15 failure, where the output of the heart does not 16 adequately meet the needs of the baby and 17 diastolic pressures rise, that backs up blood 18 into the lungs and it makes it harder to move 19 the lungs and the baby, as they progress in 20 eating, will have a harder time breathing, and 21 frequently that will tire them out and they'll 22 stop. 78 1 That's an early sign of congestive 2 heart failure, and is relatively common in 3 babies. 4 Q. Well, when you talk about congestive 5 heart failure, aren't you talking about labored 6 respirations with retractions? 7 A. As they get worse and worse, yes. 8 In the beginning it's just -- it appears to be 9 simply a disturbance in breathing, then the 10 parent's most commonly report it as the baby 11 breathes funny. That's the most common 12 description I've heard of babies in failure. 13 Q. Have you ever seen anything in any 14 of the literature or any of the texts that 15 refer to raspy breathing as something that is 16 indicative of early congestive heart failure? 17 A. I don't think I've seen the words 18 raspy breathing reported in the medical 19 literature at all. 20 Q. Okay. You talk about color changes 21 in the feet and hands. Those are not 22 indicative of early congestive heart failure; 79 1 isn't that right? 2 A. If circulation is normal, the answer 3 to that is no. At the time the baby went into 4 the hospital and there was a decrease, or an 5 increase in capillary filling time, at that 6 time it is abnormal with modeling. But, blue 7 hands and feet in general are not abnormal for 8 a new born baby. 9 Q. Right. That's acrocyanosis and it's 10 very common, and when they cover them up, they 11 pink up again; correct? 12 A. That's correct. And that's exactly 13 what Dr. Lancaster described, and that's 14 completely reasonable to say that's say 15 acrocyanosis and is not related to a cardiac 16 abnormality. On the other hand, Dr. 17 Lancaster -- 18 Q. Doctor, that's all I wanted to know. 19 A. Okay. 20 Q. Now, is there -- give me your 21 definition of -- is it true cyanosis or 22 cyanosis? 80 1 A. Cyanosis simply means blue. 2 Cyanosis in physiologic terms means that there 3 is more than five grams of reduced hemoglobin 4 in very cc of blood and it's being circulated 5 to the skin. 6 Q. There is a difference between what 7 you consider true cyanosis and acrocyanosis; 8 correct? 9 A. No. Acrocyanosis is true cyanosis, 10 but is limited to the hands and feet. If the 11 area around the lips and mouth become cyanotic 12 then that's not due to a slowness in 13 circulation. 14 That's the best supplied -- one of 15 the best supplied areas in the body with blood. 16 That has to be blue blood coming out of the 17 heart and up through the vessels. 18 And that's a -- that is -- always 19 demands emergent evaluation in a newborn baby. 20 You cannot ignore perioral cyanosis in a 21 breathing baby because that blue -- that blood, 22 the blood that comes up to the lips and the 81 1 mouth is the first blood out of the heart. 2 It's coming right off the arch of 3 the aorta and coming up through the corroded 4 arteries and if that blood is blue, something 5 is getting blue blood under the wrong side of 6 the heart, or the vessels are attached wrong to 7 the heart, but something that is potentially 8 calamitous is happening and it may never be 9 ignored, not by Dr. Lancaster, not by Dr. 10 Oelhaf. It is substandard to ignore that. 11 That is a critical finding in a baby. 12 Q. Well doctor, if you have this blue 13 blood as you're talking about, coming out of 14 the heart, due to a problem with the heart 15 itself, that is something that is going to be 16 fairly consistent? 17 A. No, ma'am. Quite the opposite. 18 That will depend on how much strain is on the 19 heart and what is happening to the pressures. 20 The reason that you see it around 21 the time of eating, that's when the baby is 22 exerting herself the most. When she's exerting 82 1 herself the most she has the biggest need for 2 oxygen, try to pump more blood out to the 3 lungs, the pressure on the right side of the 4 heart will go up and she'll shunt from right to 5 left. 6 At normal times, times when there is 7 not an increased demand on the heart she will 8 have blood flowing from left to right so that 9 the blood going to her lungs will be redder 10 than usual, but it will have no effect on the 11 color of the skin, or on anything you can see. 12 But circumoral cyanosis is always 13 something that must be evaluated by someone 14 competent to evaluate the neonate with 15 circumboreal cyanosis. 16 Q. Did any of the doctors or any -- or 17 Dr. Lancaster's nurse in her office, or the 18 nurses in the newborn nursery see any evidence 19 of circumoral cyanosis? 20 A. Yeah, certainly in the hospital the 21 nurses noted it. 22 Q. I'm talking about when she was born 83 1 while still in the newborn nursery at the time 2 she was seen in Dr. Lancaster's office or the 3 time she was evaluated by Dr. Oelhaf in the 4 emergency room. 5 During those time frames did any of 6 those people that evaluated her see any 7 evidence of circumoral or perioral cyanosis? 8 A. I'm not aware that any of them fed 9 the baby. This is -- it's with feeding for the 10 physiologic reasons that I just told you about. 11 I'm not aware that any of them -- that any of 12 the nurses fed the baby until the baby got into 13 the hospital, and I'm not aware of Dr. Oelhaf 14 trying to feed the baby. 15 Q. Isn't it true doctor though that 16 young babies, even though -- without heart 17 problems when they cry or feed when they're in 18 this young time frame can have brief periods of 19 perioral cyanosis or circumoral cyanosis which 20 disappear? 21 A. I'm not isolating, and it's 22 always -- you always must consider that there 84 1 may be underlying cyanotic congenital heart 2 disease and evaluate the baby for that. That's 3 what wasn't done. 4 If you find that the baby is 5 perfectly normal and there is no cardiac reason 6 for it, then wonderful. But, if you miss a 7 diagnosis like you have in this case, a child 8 is going to die needlessly with a perfectly 9 normal life ahead of her. 10 Q. Doctor, what is -- you used the term 11 cyanotic congenital heart disease and I've 12 never actually seen that term in any of the 13 medical literature. What is that? 14 A. That means a defect of the heart or 15 great vessels in which there is blueness in the 16 baby. 17 Q. So is there a specific heart 18 condition diagnosis called cyanotic congenital 19 heart disease or is that just some kind of a 20 generalized term you're using? 21 A. No. It's one of the break downs of 22 the congenital heart diseases usually fall into 85 1 those that are pink, those that are blue, and 2 those that are sometimes pink and sometimes 3 blue. 4 The groups that are blue at some 5 time are called cyanotic congenital heart 6 disease. 7 Q. Which cyanotic congenital heart 8 disease did she have? 9 A. She had coarctation of the aorta 10 with communication at the ventricular level. A 11 ventricular septal defect with coarctation. 12 Q. What is differential cyanosis? 13 A. Differential cyanosis means -- 14 acrocyanosis is the most common example of 15 differential cyanosis. That is a normal 16 example. Differential cyanosis exists in 17 babies with coarctation of the aorta when the 18 ductus arteriosus goes to -- feeds into the 19 aorta distal to the take off of the sub clavian 20 arteries. So that the upper part of the baby's 21 body will be pink and the lower part of the 22 baby's body is being supplied from the right 86 1 ventricle with blue blood, and you'll see 2 blueness on the baby below. 3 The two findings that are critical 4 that were never done -- 5 Q. Wait a minute, doctor. I want to 6 follow up on that. 7 A. Okay. 8 Q. So differential diagnosis is a 9 specific finding with coarctation where the 10 upper part of the body, which would be the hand 11 and the arm, that those would be pink, and the 12 lower part of the body which should be the feet 13 or the legs would be blue with the coarctation; 14 correct? 15 A. That's one form of differential 16 cyanosis with one form of coarctation. I've 17 already told you that acrocyanosis is also 18 differential cyanosis. That's normal. 19 You may have cyanosis only of one 20 limb or of one part, depending on the 21 circulatory abnormality that you're dealing 22 with. 87 1 But, differential cyanosis simply 2 means that one part is blue -- 3 Q. Let me finish my question, doctor. 4 Are you telling me that acrocyanosis is 5 differential cyanosis? 6 A. It is one form of differential 7 cyanosis. Part of the body is pink, and part 8 of the body is blue. That's a differential 9 cyanosis means that it is different in 10 different parts of the body. Acrocyanosis is 11 an example of it which is benign. 12 There are other forms of 13 differential cyanosis that are in fact life 14 threatening. 15 Q. Did Mallory Meckley have evidence of 16 differential cyanosis related to coarctation of 17 the aorta either in the nursery -- newborn 18 nursery when she was born, or on the December 19 28th visit to Dr. Lancaster? 20 A. Not that I've seen described. She 21 was completely cyanotic later in the morning of 22 her death. 88 1 Q. Doctor, just answer my question, 2 please. 3 A. I thought I started by telling you 4 not that I've seen described. 5 Q. -- the time frame that I'm looking 6 for right now. At the time of the newborn 7 nursery or at the time of the visit to 8 Dr. Lancaster on December 28th, isn't it true 9 that Mallory Meckley did not demonstrate any 10 evidence of differential diagnosis which you 11 would find with coarctation of the aorta; true? 12 A. That question is not answerable in 13 that form. It's a nonsense question. In 14 certain types you may, but Mallory didn't have 15 that type. 16 Q. Well, what specific types of 17 coarctation of the aorta did -- do you have to 18 have in order to see differential cyanosis? 19 A. I just explained it to you. I just 20 told you precisely and exactly -- 21 Q. Give me the name of it. Coarctation 22 of what? 89 1 A. It's coarctation of the aorta with 2 the patent duct to the distal aorta. Distal to 3 the take off of the subclavian artery. That 4 would be differential cyanosis. 5 Q. That's the only situation where you 6 see differential cyanosis? 7 A. That's not what I said. That's the 8 typical situation with coarctation where you 9 see persistent differential cyanosis. 10 Q. And you see this special cyanosis 11 with the type coarctation that Mallory Meckley 12 was found to have on autopsy? 13 A. You may if you get retro grade flow 14 through the duct. 15 Q. And what outward manifestation would 16 you have of retrograde flow through the duct? 17 A. If you had it, you would probably 18 see differential cyanosis. 19 Q. Anything else that you would see if 20 the retrograde flow through the duct? 21 A. It depends on how you're looking. 22 If you're looking with the Doppler you would 90 1 see the retrograde flow. If you have the baby 2 in the appropriate place where you can be 3 making the right observations that standards 4 called for in this case then you may have 5 demonstrated that before you fixed her, but 6 normally you don't see that. 7 Q. Normally you don't see what? 8 A. Normally you don't get to observe 9 retrograde flow. 10 Q. Okay. So there is no -- but you 11 just told with retrograde flow you're going to 12 see differential cyanosis. 13 A. I said you may. 14 Q. Pardon? 15 A. I said you may. 16 Q. What else may you see that you can 17 observe if you have retrograde flow? 18 A. Again, you can look directly at the 19 flow with any modern technique for visualizing 20 the flow. 21 Q. From evaluating, looking at the 22 patient, are you going to see anything else 91 1 other than differential cyanosis? 2 A. Yeah, basically the spells of 3 tetralogy of flow are a classic example of flow 4 reversal. 5 Q. How do you mean? Say that again? 6 A. The spells of tetralogy of flow. 7 Q. What is that? 8 A. So-called tet spells, that's babies 9 who get extremely -- very, very quickly get 10 much worse and then crouch over and change 11 their circulation by assuming certain positions 12 and the relieves it. 13 There are many examples of cardiac 14 conditions, cardiac anomalies and post surgical 15 states in which flow can be reversed from one 16 direction to another depending on what is 17 happening in the rest of the body. 18 I'm not prepared to give you a 19 definitive list of all those conditions of all 20 the areas of the body that might get 21 differentially cyanotic. 22 Q. When we talk about the murmur, you 92 1 talked about the fact that you can hear it in 2 the newborn nursery and then it may not be 3 heard after that. 4 Is that because the ductus 5 arteriosus closes or changes during the first 6 few days of life and when you night hear a 7 murmur in the -- initially it goes away? 8 A. Your question was complex and 9 contains not causatively related things. Ask 10 it in a simpler form and I'll answer it simply 11 for you. 12 Q. What is the ductus arteriosus? 13 A. The ductus arterious is a vessel 14 that connects the pulmonary artery to the aorta 15 and is the main conduit or flow for blood 16 during the period of time in which the placenta 17 is the major exchange organ. 18 Q. And so after the baby is born what 19 happens to the ductus arteriosus? 20 A. Normally if all the anatomy is right 21 the ductus will close very quickly after birth, 22 not close to stay closed, but become 93 1 functionally closed so that no blood flows 2 through it. You can still get a probe through 3 it. Usually until the end of the first month. 4 Q. And sometimes when you hear a murmur 5 right after the baby is born in the first 6 couple of days and then it goes away, that's 7 not abnormal. That can be caused by the change 8 in the ductus arteriosus; correct? 9 A. Yes, ma'am. 10 Q. Now, both Dr. Lancaster and Dr. 11 Oelhaf, both of them were trained physicians, 12 listened to this baby and did not hear what 13 would be considered a murmur; correct? 14 A. That's correct, yes. 15 Q. You state in your report that if Dr. 16 Lancaster had done a standard neonate 17 examination it would certainly have disclosed 18 disparit pulses. Is that what it says? 19 A. Yes, ma'am, or differential 20 cyanosis. 21 Q. Let's just talk about the disparit 22 pulses, okay? 94 1 A. Yes. 2 Q. Which pulse are you talking about 3 that would be disparit? 4 A. Well, let's do it the way 5 Dr. Lancaster says she does it because she uses 6 Nelson's textbook which agrees basically with 7 all world's literature, which is that you must 8 simultaneously feel the femoral pulse and the 9 brachial pulse. 10 Usually you feel the right brachial 11 and left femoral because those are important 12 for reasons not related to the subject at hand. 13 But, generally speaking the femoral 14 pulse comes first and then the brachial pulse 15 comes because of the way they're propagated 16 down the vessels. If there is a coarctation of 17 the aorta, without a patent duct, you will 18 feel -- most commonly what you will feel is a 19 stronger and quicker brachial pulse and then a 20 delayed and smaller femoral pulse. 21 If in fact you feel both pulses, 22 feel strongly and in the right order because 95 1 you've got flow through a patent duct the kind 2 of coarp that I told you about before, then you 3 will have blue lower extremities with a nice 4 full pulse that is coming from the right side 5 of the heart, and the baby is going to be in 6 big trouble when that closes. So that's a 7 surgical emergency of the highest magnitude. 8 Q. Well, these pulses are something 9 obviously as a physician you can feel by 10 palpating correctly? 11 A. Yes, but not -- not you can feel, 12 but you must feel. 13 Q. But you can do that yourself, you 14 don't need any special instrumentation to do 15 that feeling of the pulse; correct? 16 A. That's correct. 17 Q. Now, if there is -- you said it 18 would disclose disparit pulses if done a 19 standard neonate exam -- 20 A. That's correct, and you type in the 21 type of coarctation that this baby had. If she 22 had felt the -- 96 1 Q. Doctor, are we talking about in the 2 nursery examination? 3 A. Yes, ma'am. 4 Q. Okay. And tell me what would be the 5 difference in the pulses? 6 A. I just did. I just explained to you 7 what the normal was and what you feel in a baby 8 like Mallory. 9 Q. You're going to have a delayed 10 femoral pulse is what you're telling us? 11 A. It will be of smaller magnitude and 12 come after the simultaneously felt brachial 13 pulse. 14 Q. It will be different on both sides? 15 A. The answer to that is yes. If the 16 anatomy is normal, other than the coarctation, 17 you will feel it at the same time in both 18 femorals. 19 Q. Would you expect that to be what you 20 would find in Mallory? 21 A. Yes, judging by the blood pressure 22 differential when it was finally taken by the 97 1 Rainbow team, the answer would be yes, it would 2 certainly have been that way. 3 Q. And does that indicate a coarctation 4 or a VSD or both? 5 A. The coarctation. Not related to the 6 VSD at all. Just a coarctation and the 7 resident who came -- or the -- 8 Q. I just want to know, just answer -- 9 A. You -- you keep interrupting me, and 10 I give you the courtesy of allowing you to 11 finish your question. So you could give me the 12 courtesy of allowing me to finish my answer. 13 Q. Well doctor, you know my question 14 was would you have -- is that related to the 15 coarctation or the VSD? 16 A. I think that you know enough to know 17 that ways that you protect your record are not 18 done by interrupting me when you think the 19 answer to your question is finished, but by 20 allowing me to finish, and then if I've said 21 something that is not responsive I think that 22 you have ways of correcting that. 98 1 I'm answering your questions as 2 fully and as honestly and as openly as I can, 3 and I would appreciate that you show enough 4 respect to allow me to finish them before you 5 start and not try to influence the record by 6 interrupting me in the middle of an 7 explanation. 8 Q. Well doctor, I wish that you would 9 answer the question I asked. I'm only 10 interested in the question I ask. And if I 11 don't ask the right question it's my 12 responsibility later that I'm not informed. 13 So my question is this, does 14 disparit pulses, is it related only to the 15 coarctation or is it related to the VSD and the 16 coarctation? That's my question. 17 A. I just -- I answered that in the 18 last answer. 19 Q. Now, I want you to answer the 20 question exactly as I ask it. Would disparit 21 pulses that you feel should have been found in 22 the nursery be related to the coarctation or to 99 1 the VSD? 2 A. The coarctation. 3 Q. And you believe Dr. Lancaster would 4 have felt disparit pulses in the nursery; 5 correct? 6 A. I believe had she tried to feel them 7 she would have felt them. In the absence of 8 disparit pulses than the analysis of that 9 second heart sound which she heard would be 10 critically important and she never further 11 analyzed that nor ever called for help in 12 analyzing that. 13 Q. Well, in the absence of disparit 14 pulses why is this sound that she referred to 15 as a click or a valvular heart sound important? 16 A. Because if the second heart sound is 17 appropriate and appropriately splits with 18 inspiration and you have normal pulses of 19 normal amplitude and non disparit then you 20 can't -- almost certainly can't have a 21 coarctation. Physiologically there is no way 22 to do that if in fact the second heart sound is 100 1 normal, but we don't know. 2 All she describes is a single click. 3 The second heart sound has two components, an 4 aorta component and a pulmonic component. They 5 move with respirations, and in a newborn you 6 have to be able to hear that movement or 7 something is wrong, and she never even 8 describes the two sounds. 9 Q. Now, as it relates to disparit 10 pulses do you believe those would have also 11 been evident in an assessment done in the 12 emergency department? 13 A. Had they been done appropriately, 14 yes. Had the brachial pulse -- the right 15 brachial and left femoral pulse been felt 16 simultaneously, the disparity would have been 17 present. 18 Q. So this is not something that comes 19 and goes; correct? 20 A. That's correct. This is not 21 something that comes and goes. 22 Q. Okay. Do you see anything in the 101 1 record that indicated any dispart pulses at the 2 time this baby was evaluated by Dr. Condru? 3 A. No. Dr. Condru doesn't talk about 4 the pulses at all. We only see the evaluation 5 after the Rainbow team gets there and they find 6 the disparity in pulses and blood pressures. 7 Q. Does Dr. Condru talk about the blood 8 pressure? 9 A. I don't specifically remember. I 10 have no opinions that anything Dr. Condru did 11 or didn't do had any -- bore any relationship 12 to the outcome in this case. 13 Q. I know that, but I'm wanting to know 14 whether or not in Dr. Condru's evaluation you 15 thought whether or not she felt there was any 16 differences in the blood pressure between the 17 arms and the legs? 18 A. As far as I recall she did not take 19 the blood pressure in the arms and legs. That 20 remained for the Rainbow team to do. 21 Q. Assume that somebody did take the 22 blood pressure in the arms and legs and didn't 102 1 find much of a discrepancy or dispart finding, 2 what would that indicate to you? 3 A. I don't know. I don't know what 4 they were or how they were taken. 5 Q. Do you have the records there from 6 the hospitalization? 7 A. Yes. 8 Q. Can you look and see what 9 Dr. Condru's notes say in the records? What 10 does Dr. Condru's note say? 11 A. It says -- 12 Q. Blood pressure? 13 A. The second page of his note, or the 14 first page? 15 Q. Any of Dr. Condru's notes, do they 16 show -- it's a her actually -- were any blood 17 pressures done by Dr. Condru? 18 A. Not that I can see, no. 19 Q. Did she check the pulses? 20 A. She checked the heart rate and 21 respiratory rate. Not that I'm aware of. Not 22 that I can find in her note, no. 103 1 Q. Do you see anywhere in the records 2 that Dr. Condru considered this child might 3 have a congenital heart problem of any sort? 4 A. Yes. 5 Q. And on what did she base her 6 conclusion the child might have a congenital 7 heart problem? 8 A. I don't know the answer to that, but 9 she starts of in her admitting diagnosis as a 10 question of congenital heart disease, which of 11 course, I don't believe was the admitting 12 diagnosis, but that's they way she starts her 13 note. 14 Q. And you can't tell based on the 15 work-up that Dr. Condru did on what she based 16 her conclusion that there might be a congenital 17 heart problem? 18 A. No, I can't. 19 Q. Okay. Now, if a chest film was 20 taken on an infant that had VSD, isn't it true 21 you would normally expect to see changes in the 22 heart such as a prominent ventricle or a left 104 1 atrium? 2 A. Not as a newborn, no. A VSD would 3 have no effect during fetal life and most 4 children with VSD's that have no other anomaly 5 are not diagnosed in the immediate newborn 6 period. 7 It's not until the pressure on the 8 right side goes down and you get a significant 9 flow of blood from the left side to the right 10 side that you begin to see changes either in 11 the electrocardiogram and in the chest x-ray. 12 Q. Doctor, let's just talk about the 13 chest film. Are you saying that at Mallory 14 Meckley's age at the time the chest film was 15 taken of her, you would not expect to see 16 changes in the heart such as prominent 17 ventricle or left atrium with a condition of 18 VSD? 19 A. Are you asking me to assume that 20 this child doesn't have coarctation of the 21 aorta? 22 Q. Well, does the coarctation of the 105 1 aorta take out findings of prominent ventricle 2 or left atrium with a child that has VSD? 3 A. The answer to that is that the -- 4 the finding of coarctation of the aorta does 5 put an additional strain on the left heart 6 during -- during development despite the 7 predominance of the right ventricle and this 8 child's left ventricle was in fact abnormally 9 thick at autopsy, just as you would expect for 10 her congenital heart disease. 11 Q. Did that show anywhere on the -- any 12 abnormalities of the heart that you would 13 expect to find based on those autopsy findings 14 show up on the chest films? 15 A. I believe that the -- we've already 16 talked about the chest film as far as I can. I 17 have a poor quality reproduction of it, but it 18 appears that the -- it is not -- it's not 19 appropriately centered and it is not 20 technically completely readable for that 21 reason. 22 But, the heart certainly appears 106 1 enlarged, and I believe that the pulmonary 2 vasculature does appear increased on that film, 3 but it's not a film that I would be willing to 4 read. I would make them repeat the film and 5 get me a good film. 6 Q. Okay. So you think based on what 7 you see that there is increased pulmonary 8 vasculature? 9 A. Again, I can't read it because it's 10 of center. It's not appropriately taken, but 11 it would be suggestive of that. Also the liver 12 is clearly enlarged. 13 Q. So if you as a physician were told 14 that a film was taken in a baby like this that 15 showed a clearly enlarged liver and you think 16 there is a question of an abnormality of the 17 pulmonary vasculature, would that additional 18 information be something you'd want to know in 19 your decision as to whether or not to transfer 20 the patient? 21 A. You don't need that information. I 22 wouldn't even be critical if they hadn't taken 107 1 an x-ray, if they just transferred the 2 information, just transferred the baby on the 3 basis of presentation and history, that's all 4 that they needed to know that this baby had to 5 go someplace else. 6 They just weren't equipped with 7 personnel or equipment or skills and knowledge 8 at this hospital to evaluate a baby with this 9 history. 10 Q. Do you hear any kind of a murmur or 11 a heart sound when the coarctation -- specific 12 to coarctation? 13 A. You may or may not. It depends on 14 what the blood flow is doing at the particular 15 time that you're listening. 16 Q. Does the coarctation change over 17 time like between the time Mallory is born and 18 the time of her death? You're assuming a 19 coarctation existed that entire time; correct? 20 A. Yes, but the flow of blood was very 21 different at different times. 22 Q. Why is that? Does the coarctation 108 1 get bigger, change in any way or what? 2 A. No. The coarctation size is fixed. 3 The rest of the vessel may dilate and the 4 change -- the differences in presumes between 5 the two sides of the heart, especially when 6 there is an existing VSD, and what happens to 7 the duct, whether or not it closes or begins to 8 close will dictate the flow of blood at any 9 given moment. 10 Q. And the ducts that you're talking 11 about closing or beginning to close is which 12 one? 13 A. The ductus arteriosus. 14 Q. Okay. You told us that the ductus 15 arteriosus normally closes after birth, but 16 you're talking about now closing down 17 completely; correct? 18 A. No. It normally functionally closes 19 right after birth, but it frequently does not 20 function and close right after birth in babies 21 with coarc, and also in babies with large 22 volume VSD's. 109 1 Q. So a coarctation and large VSD, the 2 ductus arterious doesn't normally close in 3 infants of Mallory's age, is that what you're 4 telling me? 5 A. There is no such thing as normally 6 in a baby with two significant anomalies. 7 There is no normal. Normally this would have 8 picked up in the nursery or certainly by the 9 time of the first office visit that Dr. 10 Lancaster -- and you wouldn't have an 11 opportunity to watch the deterioration of the 12 child, you know, that's something that 13 shouldn't happen in modern days. 14 Q. Do you agree that with a VSD there 15 are characteristically a loud or blowing heart 16 murmur? 17 A. Only if there is blood flowing, 18 which means -- and blood flowing means there 19 must exist a difference in pressure between the 20 right ventricle and the left ventricle. 21 If the left ventricular pressure is 22 higher than the right ventricle, it will blow 110 1 blood into the other ventricle and you'll hear 2 that. If the right ventricular pressure is 3 higher than the left ventricular pressure, it 4 will blow blood back into the left ventricle 5 and you'll usually see total body cyanosis or 6 power, as you may sometimes have seen here. 7 Normally during the newborn period 8 the pressures in the ventricle are fairly equal 9 and even significant VSD's may be absolutely 10 silent and have no murmur at all during the 11 newborn period. 12 Q. Which did Mallory have of those two, 13 you said you're going to hear the blowing if it 14 goes from the right to the left, is that what 15 you said? 16 A. You'll hear blowing if it goes in 17 either direction, but the pressure differential 18 has to be big in order for that to happen. 19 Mallory also has a coarc, so that all bets are 20 off once you get a coarc. 21 Q. So when you get a coarc it changes 22 whether or not you're going to hear a murmur 111 1 with a VSD? 2 A. Depending on the status of the duct, 3 that's correct. 4 Q. Well, did anybody describe Mallory 5 as having a heart sound which was 6 characteristic of a VSD? 7 A. The presence of a single loud or 8 clicking second sound would suggest that there 9 is a right to right left shunt in place with 10 increased flow of blood through the lungs to 11 the right side of the heart and that that loud 12 sound is really the closing sound of the 13 pulmonary valve, and that -- I've personally 14 seen that many times in babies like that. 15 Anything with increased pulmonary 16 pressure will do that. Then you can hear the 17 aorta closure sound just before loud sound. 18 It's like a galump (phen) and it's a double 19 edged click with the first sound much lighter 20 and it will sometimes separate with 21 respiration. 22 Sometimes it's fixed, depending on 112 1 the status of the -- how much blood is flowing 2 through the defect at either level of the 3 heart. 4 Q. Well, is the term a clicking sound 5 something that is used to describe what the 6 sounds like a VSD or a sound with a 7 coarctation? 8 A. The closest -- since none of the 9 appropriate heart sounds are described, we 10 don't know if there was a single sound. We 11 don't know if there is a splitting of the sound 12 with respirations. None of the standard and 13 routine bread and butter ways of listening to a 14 baby's heart were utilized and described by 15 either of the doctors that saw this child prior 16 to her being terminally ill. So I can't tell 17 you specifically what that sound was. 18 Q. Wait a minute. I want to ask you 19 something right there in your question. 20 A. No. I'm going to finish my answer 21 first and then you can ask me whatever it is 22 you want. What is described is a loud click 113 1 that the nurse described as like one of those 2 finger tambourines that goes click, click, 3 click like a cricket. 4 And that is the sound most 5 frequently associated either with post stenotic 6 dilatation, which would be a sound insysteli 7 (phen) or with a very high pulmonic pressure 8 which would be a sound that would occur with a 9 large left to right shunt at the ventricular 10 level. That is easy enough to determine, which 11 it is, but you have to make the appropriate 12 observations and they weren't made in this 13 case. 14 Q. Well, what is the routine bread and 15 butter way of doing a heart -- listening to the 16 heart that Dr. Oelhaf and Dr. Lancaster didn't 17 do? 18 A. In evaluating a newborn infant you 19 look first at the color and describe that. 20 Then you feel all of the pulses, but 21 specifically the right brachial and left 22 femoral pulse simultaneously to rule out 114 1 certain congenital anomalies. 2 Then you listen to the heart 3 describing the first sound in the heart sound, 4 and that sound is the sound of the valves that 5 connect the atria and the ventricles. 6 The sounds of those two valves 7 closing, that's the first heart sound, and then 8 you describe the second heart sound, whether 9 it's normal in intensity, whether or not it 10 splits normally with inspiration. 11 When you breathe in you lower the 12 pressure in your chest, that sucks more blood 13 in to return to the right side of the heart 14 more blood goes out to the -- into the right 15 side of the heart and therefore the time that 16 it takes for the right ventricle to empty into 17 the pulmonary artery is prolonged, and the 18 pulmonary second sound moves out in time so 19 that you can differentiate then between the 20 sound of aortic valve closure and pulmonic 21 valve closure. 22 Critically important, there are 115 1 certain conditions that lead to a fixed 2 splitting where there is no variation with 3 respiration, and when you're evaluating the 4 newborn heart you need to be aware of that, or 5 you need to know that you don't know enough to 6 do that and get someone who does know enough to 7 do that so that the baby can be evaluated and 8 the baby doesn't have to pay a price because 9 everybody is not an expert in evaluation of the 10 newborn heart. 11 Q. Well, when you -- when these doctors 12 listened to this heart, Dr. Oelhaf didn't hear 13 anything abnormal about the heart sounds; true? 14 A. I believe he heard the loud second 15 sound as well. 16 Q. Are you sure about that? 17 A. No. I'm not sure about that. 18 Q. Can you look at his records? 19 A. Sure. In the doctor's office note, 20 his review, he put a click down, but he 21 couldn't hear a click at the time he examined 22 the baby. 116 1 Q. And are you saying that that click 2 is something that can come and go? 3 A. Yeah, and as the baby goes into 4 failure, both the pulse discrepancy, the clicks 5 and everything else will be diminished. 6 Anything that is dependent on volume 7 of blood flow is going to become diminished as 8 the baby goes into failure because the baby is 9 pumping less and less blood. 10 Q. Are you saying Dr. Lancaster was 11 wrong when she said there was no murmur? 12 A. No, not at all. Dr. Lancaster heard 13 the abnormal heart sounds and acknowledges that 14 there were -- that that click was something 15 that she had never heard before, just didn't 16 investigate it further as the standard would 17 demand. 18 Q. So would I be correct that you 19 believe that on the visit of 12/28 Dr. 20 Lancaster should have referred this child to a 21 cardiologist? 22 A. You mean the hospital -- or her 117 1 visit -- office visit? 2 Q. Well, why don't I do it this way, is 3 it your opinion that Dr. Lancaster should have 4 referred this baby to a cardiologist? 5 A. I would not -- at the time of her 6 office visit I think referring her to a 7 pediatrician would have met the standard, would 8 have met the applicable standard. 9 By the time the baby got to the 10 hospital it was much more clear that a tertiary 11 care center for a full evaluation was 12 necessary. 13 Q. So in the office visit you believe 14 she did not follow the standard of care by not 15 referring Mallory to a pediatrician? 16 A. That's correct. 17 Q. What time frame should this referral 18 have been accomplished? 19 A. That she should have called the 20 pediatrician from there and said, I'd really 21 like you to take a look at this baby. 22 Q. During what time frame? 118 1 A. Then. 2 Q. The same day? 3 A. Yes. 4 Q. Okay. And then you do agree that 5 there were changes in this baby's condition 6 between the 28th and the time that the baby was 7 seen in the emergency department? 8 A. Clearly there was a progression in 9 her failure. 10 Q. There were changes in -- that the 11 first notation -- beforehand comes right before 12 the admission; correct? 13 A. That's correct. It was appears that 14 there was about a two or three-day period in 15 which she became worse, including the visit to 16 Dr. Lancaster's office. 17 Q. What specific symptoms on the visit 18 of 12/28 would have in your opinion required 19 Dr. Lancaster to refer this baby to the 20 pediatrician the same day? 21 A. The baby had perioral cyanosis and 22 abnormal heart sounds which Dr. Lancaster 119 1 didn't understand. 2 Q. Now, you say that at the time of the 3 emergency department visit that, if I am 4 correct, you believe Dr. Lancaster and Dr. 5 Oelhaf should have both referred her or talked 6 about referring her to a cardiologist? 7 A. No, to a tertiary care center where 8 an appropriate newborn evaluation could have 9 been done. 10 Q. Okay. So it wouldn't have been 11 appropriate to get a pediatric consult that -- 12 the following morning or to have the baby seen 13 by a pediatric cardiologist the following 14 morning. It required the transfer immediately 15 on the same day. Is that what you're telling 16 us? 17 A. Obviously, yes. 18 Q. The symptoms that would have caused 19 them to be required to immediately refer her to 20 a tertiary care facility are what? 21 A. Those that I've already listed 22 several times. I have nothing to add to my 120 1 prior answer. 2 Q. Do all babies with a coarctation 3 require surgery? 4 A. No. 5 Q. Do all babies with a VSD require 6 surgery? 7 A. No, most don't. 8 Q. Do all babies that have both of 9 those together, a coarctation and VSD, require 10 surgery? 11 A. I don't know. I don't know the 12 statistics on that. In my experience the 13 answer would be yes. I've only seen three or 14 four such babies myself. 15 Q. Were there any changes in the baby's 16 condition after the baby was admitted and Dr. 17 Lancaster gave the orders at 1 o'clock that 18 indicate any worsening or change in the baby's 19 condition? 20 A. Not that I'm aware of. The 21 feeding -- when the baby took only a half an 22 ounce I believe at one of the early morning 121 1 feedings, it's not clear from Dr. Lancaster's 2 orders that she wanted to be notified about 3 that. But, that certainly was a change in the 4 feeding behavior. 5 Q. Is it your opinion that had this 6 baby been transferred the only thing that they 7 would do for her during the time of transfer 8 would be to give her oxygen and give her IV 9 fluids; correct? 10 A. Had she been transferred timely and 11 in a standard fashion which would have been 12 before 11 o'clock that night. The previous 13 night. That's all she would have needed for 14 her transport, yes. 15 Q. What is the purpose of the IV fluid? 16 A. Any baby with an unknown cardiac 17 lesion should have IV access. It just makes 18 them easier to take care of if anything bad 19 happens. 20 Q. Now, you also say in your letter 21 that had Dr. Lancaster done a standard neonatal 22 examination it would have disclosed cyanosis? 122 1 A. I don't believe I said that. 2 Q. I think you did if you look at 3 paragraph three. 4 A. Paragraph three. It says disparit 5 pulses or cyanosis. 6 Q. As well? What about -- what 7 standard neonatal examination reveals cyanosis? 8 A. Observation. 9 Q. And didn't she observe this baby on 10 12/28? 11 A. She did, yes. 12 Q. The baby didn't have perioral 13 cyanosis at the time she was in the office and 14 she had acrocyanosis which went away when the 15 baby was covered up; right? 16 A. Right. Again, by history the 17 perioral cyanosis is toward the end of feeding 18 and that's exactly what you would expect 19 physiologically based on the disease that this 20 child had. 21 Q. Well no doctor, you said that if 22 she'd done a standard neonatal exam it would 123 1 have disclosed cyanosis. 2 A. No, ma'am. I said it would dispose 3 either disparit pulses, or if the pulses were 4 not disparit, if the baby had equal pulses then 5 she would have to be differentially cyanotic. 6 Because the pulse down to the 7 femoral vessels would have to be coming from 8 the right side of the heart and that pumps blue 9 blood. So that if -- that's what was supplying 10 the pulse to the distal aorta and supplying the 11 legs, then the legs would have to stay blue, or 12 alternatively the pulses would have been 13 diminished and usually reversed in time. 14 So that instead of the femoral pulse 15 being first, the brachial pulse would precede 16 the femoral pulse, and the femoral pulse would 17 have diminished volume. 18 Q. Okay. So what you're actually 19 saying is, it wouldn't have been both. She 20 would have seen either disparit pulses, and if 21 she didn't see that, then she would most 22 certainly have seen cyanosis. Is that what 124 1 you're saying? 2 A. I think I said it exactly as I 3 wanted to. She would have disclosed -- it 4 would disclose disparit pulses or cyanosis. It 5 doesn't say both. 6 Q. Pardon? 7 A. It doesn't say both. It doesn't say 8 and/or. It says disparit pulses or cyanosis. 9 MR. FARCHIONE: Can we go off 10 for a second, Deidra? 11 MS. HENRY: Sure. 12 13 (Thereupon, there was an 14 off-the-record discussion.) 15 16 BY MS. HENRY: 17 Q. Doctor, how do you classify the VSD 18 defect? Is there a classification system? 19 A. Not in association with other -- 20 with other anomalies that I'm aware of. 21 They're measured by cross sectional area, and 22 this child I believe was .8 centimeters -- 125 1 square centimeters at post, but other than that 2 we can't functionally classify it because it 3 was not simple ventricular septal defect. 4 Q. Okay, and the coarctation is there a 5 specific way to over classify it or categorize? 6 A. Yes. This one was characterized by 7 the Mencliger (phen) system that is called 8 infantile coarctation, which is the common type 9 where the duct comes in at the take off of the 10 great vessels from the aorta. 11 Q. And the -- what portion -- well, 12 tell me what a standard neonatal examination 13 includes? 14 A. Did someone say we were just about 15 finished? I spend about six hours on 16 describing the normal neonatal examination. Is 17 that what you want? 18 Q. Well, tell me what Dr. Lancaster 19 didn't do that you think she should have done 20 in a normal neonatal exam. 21 A. Okay, for the fourth time. An 22 absolutely mandatory part of the examination to 126 1 simultaneously feel the right brachial arterial 2 pulse and the left femoral pulse and -- 3 Q. Okay. Anything other than that? 4 A. That's all she would have needed to 5 do to understand that this baby had life 6 threatening heart disease and save her life. 7 Q. Is there anything else that you say, 8 are going to say at trial she didn't do that 9 she should have done in her examination, other 10 than that -- you say she didn't do the pulses 11 appropriately? 12 A. Not that we haven't already 13 discussed. I've already discussed with you how 14 to listen to the heart, how to describe the 15 first and second heart sounds and separate 16 them. All those things we've already gone 17 over. 18 Q. Anything else? 19 A. Not that we have not already 20 discussed, no. 21 Q. Do you intend to review any other 22 materials prior to trial in this case? 127 1 A. I'm always available to review 2 anything new that is discovered or anything 3 that someone believes might change any of my 4 opinions I'm happy to do that. 5 Q. Any opinion that you don't have set 6 forth in your expert report relative to this 7 case as relates to either Dr. Lancaster or Dr. 8 Oelhaf? 9 A. I think I gave just a very basic 10 report stating that I believe that both of them 11 provided less than the minimum acceptable 12 standard of care for physicians caring for 13 children in their respective positions and that 14 had either of them given standard care, this 15 child would almost certainly have survived and 16 gone on to a normal life. 17 Everything else would just be 18 branching out on the reasons for those opinions 19 which I think we've discussed in terms of 20 everything you've asked me today. 21 Q. Do babies who have early congestive 22 heart failure exhibit respiratory distress? 128 1 A. Respiratory distress is a separate 2 consideration and has its own ways of being 3 measured in the newborn period, and the answer 4 to that is no, you can actually die a 5 respiratory death without ever having what is 6 defined as respiratory distress, but most 7 babies to have trouble breathing. 8 Q. If you have a congenital heart 9 problem, are you going to have trouble 10 breathing as an infant of Mallory's age just 11 when you're feeding or other than that? 12 A. Depends on bad you go and how far 13 along you go. You saw all variations with 14 Mallory. She went from no trouble breathing, 15 to having trouble breathing just with feeding, 16 to having trouble just lying there, to stopping 17 breathing and dying. 18 That's the progression of congestion 19 heart failure. Congestive heart failure 20 untreated kills you. 21 Q. She didn't have any respiratory 22 distress at the time she was evaluated by Dr. 129 1 Oelhaf in the emergency room, did she? 2 A. I don't believe she was feeding at 3 that time. The history that he got was that it 4 occurred with feeding. 5 Q. So you're saying that respiratory 6 distress with the coarctation of VSD which she 7 had is only going to manifest itself when she's 8 feeding? 9 A. At the state of cardiac compensation 10 she was in when she came to the emergency 11 department that was true, and that was 12 historically true, that she had been having her 13 trouble with breathing at the times when she 14 was fed. 15 And that's characteristic, and I 16 explained to you the entire physiology of that, 17 what happens and how the compliance of the lung 18 changes and you have to work harder to breathe 19 and have a greater oxygen need while you're 20 doing all that hard work of sucking your food 21 out of a bottle, and that's exactly what she 22 was manifesting. 130 1 When they failed to realize that 2 that's what was happening and put her in the 3 wrong hospital and did the wrong things, then 4 she progressed in her state of failure to the 5 point where when Rainbow babies got there she 6 was having continuous high grade respiratory 7 distress with an audible grunt and retractions 8 of both intercostal and subcostal retractions 9 and flaring with each breath. 10 Full fledged Silverman 10 11 respiratory distress. That's the progression 12 of congenital heart disease with failure that 13 goes untreated and uncorrected. 14 MS. HENRY: Okay. That's all 15 doctor. Thank you. 16 THE WITNESS: You're welcome. 17 EXAMINATION BY COUNSEL FOR THE DEFENDANT, 18 ASHTABULA COUNTY MEDICAL CENTER 19 BY MR. SWITZER: 20 Q. Doctor, this is Don Switzer. 21 A. Hi, Don. 22 Q. Hopefully I'll -- are you tired? 131 1 A. No, not at all. 2 Q. Let me know if you don't hear me, 3 and obviously I don't want to cut you off and 4 vise versa. I represent Ashtabula County 5 Medical Center. Your report doesn't comment on 6 the hospital, just on the two doctors. Why is 7 that? 8 A. Because the hospital is a bunch of 9 bricks and I don't think the bricks do anything 10 wrong. What I'm clear about, about the hospital 11 is that in terms of neonatal care it was a 12 level one hospital, and this was a baby with 13 potentially life threatening illness that 14 should not have been allowed to be admitted to 15 this hospital. 16 And if admitted then it would have 17 required a high degree of nursing skill and 18 continuos pulsoximetry and all kinds of things 19 that I think the hospital wasn't prepared to 20 do. 21 And I don't think the hospital not 22 being prepared to do those things is 132 1 substandard. I have not argument, no complaint 2 about the hospital in that regard. 3 I think that this baby just didn't 4 belong in that hospital, the hospital policies 5 and procedures should have precluded a baby 6 with perioral cyanosis and potential congenital 7 heart disease from admission for observation 8 even on a 23 hour basis as was done in this 9 case. 10 Q. How could the hospital do that? 11 A. Say we don't admit this kind of 12 patient. 13 Q. Who makes those decisions. Is that 14 a medical decision? 15 A. The answer is that the decision to 16 admit or not admit starts with the medical 17 decision or the doctor level decision, because 18 only the doctor can admit the patient. 19 But whether or not let the patient 20 go is usually -- that decision is administered 21 by most commonly by the hospital nurses. Some 22 hospitals now have patient evaluators that are 133 1 separate from the nursing staff, but I would 2 not expect that at this hospital, and the 3 nurses just should have simply said, this is a 4 baby with potentially too complex disease for 5 us to take care of. 6 Q. I heard what you're saying. Let me 7 just ask you this. Are you opinions in this 8 case going to be confined to the two 9 physicians? 10 A. I'm assuming that those are all the 11 questions that will be asked of me. 12 Q. Okay. I don't think I've ever taken 13 your deposition before, maybe I have I just 14 don't remember. I'm getting old. Is your 15 $2,000 deposition fee your standard? 16 A. Yes per half a day. And half a day 17 means whenever the end is open. I will make 18 special -- if someone says they only need an 19 hour or something like that, I will make 20 special provision to take -- to give a 21 deposition, more economically I'll do it in my 22 office between patients and set just an hour, 134 1 but that's where we know how long it will be 2 and I don't need to hire someone to replace 3 myself for that time. When it's an open-ended 4 deposition then the minimum charge is half a 5 day. 6 Q. Early on in your deposition, I know 7 we've been at this about two hours, you had 8 mentioned something about shock. I don't know 9 if you remember that. 10 A. Yes. 11 Q. Okay. And I don't recall this 12 question being asked, and if it was just tell 13 me you've already answered it. Could you tell 14 me when Mallory first exhibited signs and 15 symptoms of shock? 16 MR. FARCHIONE: I did ask him 17 that, Don, and he said between 6 and 7 in the 18 morning. 19 MR. SWITZER: Okay. 20 BY MR. SWITZER: 21 Q. And were these signs and symptoms 22 then doctor? 135 1 A. You know, I forget. There were 2 evidence of decreasing -- decreasing cardiac 3 output and I don't recall precisely what signs 4 she had during that period, but if we look 5 at -- if you look at the assessment done by 6 Nurse Manion in her neonatal assessment that 7 she does when she comes on for her 7 a.m. shift 8 change, you'll see many of the early signs of 9 decompensation. 10 Q. This baby needed surgical treatment? 11 A. The answer to that is probably yes, 12 but that would not actually be my decision to 13 make. The baby need first a full evaluation. 14 I believe it would have led to 15 surgery for this child had she been admitted 16 from the emergency department the night before. 17 Had she been admitted from Dr. Lancaster's 18 office several days before that I think she 19 still would have -- she certainly would have 20 wound up with surgery but it might not have had 21 to be done right then. 22 Q. Do you have any opinion as to the 136 1 time period that would have been involved in 2 transferring Mallory to Rainbow Babies and 3 Children's Hospital, getting her evaluated 4 along the lines you suggested and then 5 initiating the surgery to correct this defect? 6 A. Yeah, I looked at the departure 7 times and everything like for the team. I 8 think it's about an hour and three minutes in 9 route. Of course on the way back they would 10 have been in communication with them and they 11 would have had everything ready. 12 They probably could have evaluated 13 this baby in the emergency department over a 14 half an hour period, then to the lab and for 15 surgery or to whatever the definitive therapy 16 was going to be for that period, certainly 17 within two hours. 18 Q. If Mallory would have been 19 transferred, let's say about 11 p.m. or so on 20 New Years Eve -- 21 A. Yes. 22 Q. I'm sorry. Not New Years Eve, 137 1 January 1? 2 A. Yeah. 3 Q. I'm just curious how would the 4 transport team know that Mallory would require 5 surgery based on her findings at that time? 6 A. Well, the transport team made the 7 diagnosis or coarc before they even left the 8 hospital based on the differential blood 9 pressures, right arm, left leg, which are the 10 same pulses that I was saying that you needed 11 to feel and evaluate if you're not a 12 neonatologist. 13 They just took some blood pressures 14 and found significantly different means and 15 said, this is presumptively coarctation of the 16 aorta. They were right. 17 So they would have prepared the 18 child on the way. They would have prepared 19 Rainbow on the way to get a baby with potential 20 coarctation of the aorta, and obstructions to 21 the outflow on the left side are conditions 22 that can lead to sudden cardiac death. So 138 1 they're evaluated emergently, and that's 2 exactly what would have happened with this 3 baby. 4 Q. I'm sorry, I wasn't clear with my 5 question. My understanding is that sometimes 6 these can be treated medically and sometimes 7 they require surgery? 8 A. Most coarcs will eventually require 9 surgery. It's the timing of the surgery that 10 is in question. Once you go into congestive 11 failure the -- and I would defer to the 12 cardiovascular surgeon on that -- there are 13 many different, even right now today in 2001 14 there are about seven or eight different 15 surgical approaches that you could take with a 16 baby like this. 17 All of them quite successful and the 18 only thing I can say is you want the person who 19 is doing it to do the one that they're most 20 familiar with and have the best results with, 21 and that's out of the realm of the pediatric 22 intensivist or the neonatologist which would be 139 1 my role in the thing. We take care of the baby 2 pre and post op, but not for the actual 3 surgery. 4 MR. SWITZER: Thank you very 5 much, doctor. 6 THE WITNESS: You're welcome. 7 BY MR. FARCHIONE: 8 Q. Doctor, you had mentioned you have 9 several offices at which you see patients; 10 correct? 11 A. Yes. 12 Q. Is it two or three? I can't recall. 13 A. Three. 14 Q. Can you give me the name of any 15 physician over the past year who has worked and 16 seen patients in one of those offices with your 17 or on your behalf? 18 A. I could but I think that that's a 19 fairly valuable business secret. You could 20 come into the offices, I invite you to come 21 down at any time and spend a few hours with me 22 and meet some of my colleagues and some of the 140 1 people who are there, but I'm not going to put 2 in a public record the names of valuable 3 employees that could be lured away. 4 Q. I'm not looking to lure anybody away 5 doctor, I don't run a medical practice. But, 6 if they work in your office and obviously 7 they're there for the public to see, so there 8 is no secret to that, so can you give me the 9 name of just one individual who has worked at 10 any of your offices over the past year? 11 A. Again, I consider who I hire for -- 12 especially for part-time work to be -- to be a 13 valuable trade secret and this is a public 14 document. 15 So the answer is I won't do that, 16 but certainly I invite you to find out. You 17 can call my office at any time and get the name 18 of the doctor who is there and on-call at that 19 time. 20 Q. Would you be willing to give Ellen a 21 name in a letter to her that would not be part 22 of the deposition? 141 1 A. Assuming that it's for his 2 information only and that it would go no 3 further and the physician wouldn't be hassled. 4 I certainly wouldn't want any physician that 5 works for me or has worked for me to be hassled 6 by lawyers that he doesn't want to talk to. 7 But certainly you have many ways 8 other than asking me to disclose valuable 9 business secrets -- 10 Q. Doctor -- 11 A. -- to find out who the doctors are 12 that work in my offices. 13 Q. Doctor, are you refusing to give me 14 the name of any individual physician who has 15 worked in your office over the past year? 16 MS. McCARTHY: That's not what 17 he said he was doing, Joe. 18 BY MR. FARCHIONE: 19 Q. I'm just asking. Are you refusing 20 to do that right now on the record, doctor? 21 A. No. I'm refusing to give you any 22 valuable business secrets. I'm saying if you 142 1 have an interest in something as benign -- 2 Q. Doctor, my question is simply yes or 3 no. 4 A. No, you're -- you're -- you don't 5 understand that -- 6 Q. Doctor wait a minute -- 7 A. -- privilege is not to interrupt me. 8 Q. Doctor -- 9 A. Your privilege is not to interrupt 10 me while I'm answering you. 11 Q. Doctor -- 12 A. You do not have the right to do 13 that. 14 Q. Doctor, we could be done with this 15 in five seconds. 16 A. We're not going to be done until you 17 stop behaving like a buffoon -- 18 Q. Doctor, if you could just answer a 19 question directly, yes or no, will you give me 20 the name? 21 A. I will answer questions the way I 22 chose to answer questions. If you need to 143 1 protect your record for any reason you have 2 your ways and power to do that. I will answer 3 questions the way I choose to and I won't do it 4 unless you absolutely promise that you will not 5 try to interrupt me and start screaming over 6 the telephone. 7 Q. Doctor, I am not screaming over the 8 telephone number one. Number two, the judge is 9 going to want to know, yes or no are you 10 willing to give that information? 11 A. I told you the circumstances -- 12 Q. Yes or no, doctor. Will you give me 13 that name? 14 A. You have the right to ask a 15 question. You have the right to listen to my 16 answers. I don't believe I've hired you to 17 instruct me on how I should answer your 18 question or what words I should use. 19 I am perfectly happy to give the 20 name of any number of physicians who work with 21 me on a regular and routine basis or even on an 22 occasional basis with the understanding that 144 1 that name will be kept private. 2 It is for your information only and 3 the physician won't be contacted or hassled. 4 Other than that I'm not giving away valuable 5 business secrets. 6 Q. Doctor, do you consider contacting 7 that physician to verify whether he works with 8 you to be harassing? Because that's what I 9 intend to do. 10 A. That's not my decision to make and I 11 would -- I will find out if you want me to. 12 I'll ask my physicians whether or not they 13 would be willing to accept a call from you and 14 if any of them say yes, then I will invade 15 their privacy enough to let you know who they 16 are and give you the telephone number. 17 Q. Doctor, let's make it real easy so 18 we can end this deposition. Right now, will 19 you or will you not give me one name of one 20 individual who has worked in your office in the 21 past year? 22 A. Only under the circumstances which 145 1 I've described. I've already answered your 2 question as fully and as completely as I can. 3 Q. I take it doctor, that right now you 4 will not give me that name. So we will not end 5 this deposition at this point. I will order a 6 copy of it and we'll take the issue up the 7 court and seek an order to have you produce the 8 name of at least one individual who has worked 9 with you in your office as an attending for the 10 past year, during the past year. 11 MR. FARCHIONE: I don't have 12 anything further. 13 MS. HENRY: I do. 14 BY MS. HENRY: 15 Q. Doctor, you said that you hire 16 people on a part-time basis. Other than 17 yourself do you have any other physicians that 18 work for any of your companies that work 19 full-time for those companies? 20 A. That's none of your business. 21 Q. Why is it -- why is it not our 22 business what kind of employees you have? 146 1 We're entitled to find out what your practice 2 involves since you're holding yourself out as 3 an expert? 4 A. Yes, ma'am. I'll answer any 5 questions at all about my practice of medicine. 6 What kind of patients I see, where I see them. 7 How I take care of them. Anything that has to 8 do with my medical practice I'm happy to 9 discuss with you. 10 I don't think my willingness to be 11 an expert on behalf of a defendant or of a 12 plaintiff entitles you to go into the nature of 13 my business and what other physicians do in 14 premises that I may lease or own. 15 I don't think that you have any 16 right whatsoever to inquire into that. I'm 17 happy to answer any questions about my care of 18 patients, my practice of medicine, how and 19 where and when and how much I do of that, what 20 the kinds of patients, anything at all that 21 might bear on whether or not a jury should 22 believe me in terms of the opinions that I give 147 1 about a baby with cyanotic congenital heart 2 disease. 3 I'm very happy to answer that. 4 Whether or not I happen to have a plastic 5 surgeon working in my office on Thursday 6 afternoons and what his or her name might be is 7 none of your business and I'm not going to 8 answer those kinds of questions. 9 Q. Doctor, what type -- what is your 10 patient population age? 11 A. 0 to I think at the moment 103. 12 Q. From what age? 13 A. From 0. 14 Q. So you take care of patients from 0 15 to 103 years old; correct? 16 A. If you include fetuses I guess you 17 go to minus 0. Because I do see perinatal 18 patients who are not yet born. 19 Q. So you provide prenatal care to 20 woman; correct? 21 A. I didn't say that certainly. I 22 don't know where you think you've learned that 148 1 but certainly I will take care of women who are 2 pregnant, but I'm not an obstetrician, 3 gynecologist, and I don't provide their 4 prenatal care in its entirety. 5 Q. Well, what part of their prenatal 6 care do you provide? 7 A. It depends on what I'm seeing them 8 for during their pregnancy. 9 Q. A woman who is pregnant? 10 A. If she came to me simply because she 11 was pregnant I would do her initial work up and 12 refer her to either a midwife or an 13 obstetrician gynecologist. 14 Q. And you would not provide any 15 prenatal care to that woman; correct? 16 A. Unless she had something that she 17 needed me for. If it turned out that there was 18 a problem with the fetus or there was 19 congenital disease in her family and she wanted 20 me to consult as a perinatal pediatrician about 21 those things, of course I would. If she were 22 in an accident and needed trauma care, of 149 1 course I would take care of that for her. 2 Q. What perinatal service to you 3 provide to your patients on an ongoing basis? 4 A. There is no such thing as perinatal 5 care on an ongoing basis. The perinatal period 6 ends and that stops the perinatal care. It's a 7 very limited period of time. 8 Q. All right, during the perinatal time 9 frame what service do you provide to pregnant 10 women relating to perinatal care? 11 A. Whatever they need that is within my 12 area of expertise. 13 Q. Do you have Ob/Gyn's that refer 14 patients back to you for perinatal care, is 15 that what you're telling us? 16 A. Ob/Gyn would not refer a patient to 17 me for perinatal care that was -- had to do 18 with his or her expertise in Ob/Gyn. If there 19 was a question about fetal well being or what 20 might better serve the needs of the fetus, they 21 might refer that pair of patients to me. 22 Q. So you're telling me an Ob/Gyn would 150 1 refer patients back to you to get your opinion 2 as to what care is appropriate for the fetus? 3 A. Certainly that -- that certainly 4 happens with frequency. 5 Q. What Ob/Gyn's do you refer patient 6 to? 7 A. Those that I think are best equipped 8 and most appropriate for each individual 9 patient. It's an individual consideration. 10 Q. What Ob/Gyn's in the Maryland area 11 that you refer patients of yours to for their 12 ongoing care? 13 A. I have four or five. It will depend 14 on the personality of the patient and what 15 her -- what her requirements are. 16 Q. Just give me one or two of those 17 names. 18 A. No. I'm not going to discuss my 19 business practices with you. I'm happy to 20 discuss my practice of medicine. I will not 21 discuss who my referral sources are and who i 22 refer patients to with you. 151 1 Q. You're unwilling to tell us even the 2 name of one HMO, because you say you can't 3 recall at the present, that uses you for your 4 Convenient -- whatever that is -- Care 5 exclusively for their general family medicine; 6 is that right? 7 A. Exclusively? I don't believe that 8 I've ever said that any HMO or PPD uses us 9 exclusively. If we did it would be -- it would 10 be my practice exclusively and I wouldn't need 11 an HMO. 12 Q. Well, what one of these HMO's list 13 you in a book that is published and given to 14 members of the HMO that list their office as 15 someone -- for them to go to. What HMO? Give 16 me the name of one that does that. 17 A. There are probably about twenty or 18 thirty, but I would have to go and see which 19 ones publish books and which ones have us 20 listed by name as opposed to just the office 21 name. 22 Q. Well, which one of those -- just, 152 1 you know, give me a name where you think that 2 you're -- either your office or by name you are 3 listed or given to patients by these HMO's as 4 somebody they can go and see. 5 A. Do you think it's time we can stop 6 playing games? I mean I've been through this 7 stuff. You've been through this stuff -- 8 Q. Doctor -- 9 A. -- I am not -- I am not going to -- 10 Q. -- medicine? 11 A. I am not going to give you -- 12 Q. Leaves one to wonder why. 13 A. I've invited you down to spend a 14 couple of days with me or a couple of hours, 15 come down to my office and you'll see. It's 16 real simple. Why don't you come down and prove 17 it to yourself so you don't have to spend hours 18 doing this nonsense. 19 Q. I won't have to spend hours doing 20 this nonsense if you would give the name of one 21 -- of those entities. Unless you're ashamed of 22 it, or you don't know it or you aren't telling 153 1 us the truth about it, I can't see why you 2 wouldn't give us the name. 3 A. I told you I would give you the 4 names if I had the list. 5 Q. Well, so then you're going to charge 6 us money to get the name from you; correct? 7 A. Call the HMO's and find out whether 8 or not we're listed. 9 Q. How am I going to know what HMO to 10 call if you don't tell me. 11 A. They're all listed in the phone 12 book. 13 Q. I've got to believe that you know 14 where the money comes from that comes into your 15 business so you're going to have to know what 16 HMO's send you money. 17 MS. McCARTHY: Deidra, he's not 18 going to answer the question. So this really 19 is kind of pointless. 20 MS. HENRY: I'm not concluding 21 the deposition either. That's all I have. 22 MR. FARCHIONE: I'm done. 154 1 MR. SWITZER: I'm done. 2 (Whereupon, signature having been waived, 3 the taking of the deposition was adjourned at 4 7:45 p.m.) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 155 1 CERTIFICATE OF NOTARY PUBLIC 2 I, Colleen Good, the officer before 3 whom the foregoing deposition was taken, do hereby 4 certify that the witness whose testimony appears in 5 the foregoing deposition was duly sworn by me; that 6 the testimony of said witness was taken by me in 7 stenotype and thereafter reduced to typewriting 8 under my direction; that said deposition is 9 a true record of the testimony given by said 10 witness; that I am neither counsel for, related to, 11 nor employed by any of the parties to the action 12 in which this deposition was taken, and further 13 that I am not a relative or employee of any 14 attorney or counsel employed by the parties thereto, 15 nor financially or otherwise interested in the 16 outcome of the action. 17 18 19 ___________________________________________ Notary Public in and for 20 the District of Columbia 21 My Commission Expires: 22 April 14, 2006