0001
 1   The State of Ohio,  )
 2   County of Cuyahoga. )  SS:
 3            IN THE COURT OF COMMON PLEAS
 4   Mary Williams, etc., et al.,)
 5            Plaintiffs,        )Case No.
 6            -vs-               )406184
 7   Parma Community General     )
 8   Hospital, et al.,           )
 9            Defendants.        )
10                  - - - o0o - - -
11       Deposition of KEITH ARMITAGE, M.D., an
12   expert witness herein, called by the
13   Plaintiffs as if upon cross-examination
14   under the statute, and taken before Luanne
15   Stone, a Notary Public within and for the
16   State of Ohio, pursuant to the agreement of
17   counsel, and pursuant to the further
18   stipulations of counsel herein contained, on
19   Thursday, the 7th day of June, 2001 at 6:00
20   o'clock P.M. at University Hospitals of
21   Cleveland, the City of Cleveland, the County
22   of Cuyahoga and the State of Ohio.
23   
24   
25   
0002
 1   APPEARANCES:
 2             On behalf of the Plaintiff:
 3             Nurenberg, Plevin, Heller &
 4             McCarthy, by:
 5             William Jacobson, Esq.
 6             Harlan Gordon, Esq.
 7   
 8             On behalf of the Defendant,
 9             Parma Community General
10             Hospital:
11             Weston, Hurd, Fallon, Paisley
12             & Howley, by:
13             John Jeffers, Esq.
14   
15             On behalf of the Defendant,
16             The Women & Wellness Center and
17             William Hahn, M.D.:
18             Bonezzi, Switzer, Murphy &
19             Polito, by:
20             Kevin Kadlec, Esq.
21   
22             On behalf of the Defendant,
23             Physicians Staffing:
24             Hanna, Campbell & Powell, by:
25             Jeffrey E. Schobert, Esq.
0003
 1               P R O C E E D I N G S
 2         KEITH ARMITAGE, M.D., being of lawful
 3   age, having been first duly sworn according
 4   to law, deposes and says as follows:
 5     CROSS-EXAMINATION OF KEITH ARMITAGE,M.D.
 6   BY MR. JACOBSON:
 7   Q    Doctor, to speed things along, would
 8   you mind if I ask Mr. Gordon to look through
 9   your file?
10   A    It would be fine.   You want
11   everything?
12   Q    Yeah, please.
13   A    There's some loose stuff, okay.
14             MR. SCHOBERT:   You'll find there
15   are some handwritten notes made there.  If
16   you want to copy them after we're done,
17   we'll be happy to copy them.   There are --
18   there are scribbles on the back of letters
19   I've sent him and stuff.
20             MR. JACOBSON:  Okay.  Are they
21   your notes, Jeff?  Okay.
22             MR. SCHOBERT:   No, his notes
23   that he made when he reviewed depos.  He
24   showed that to me a little while ago.
25   BY MR. JACOBSON:
0004
 1   Q    Doctor, do we have your complete file
 2   with us here?
 3   A    You do.
 4   Q    Have you done any literature research
 5   at any point in this case?
 6   A    No.
 7   Q    Any literature review to refresh your
 8   recollection or assist you in this setting?
 9   A    No.
10   Q    I'm going to jump right in, Doctor, and
11   ask you about your opinion that this
12   patient's death was toxic strep syndrome.
13   What is toxic or what do you mean by toxic
14   strep syndrome?
15   A    Well, it's a clinical situation where
16   the patient has a strep infection.  The
17   strep produces toxins, and the toxin causes
18   certain clinical findings.
19   Q    Okay, and you -- you use the initials,
20   TSS.  Doctor, are you referring here to a
21   specific syndrome which is recognized in the
22   literature?
23   A    Well, there's two syndromes that people
24   talk about when you talk about toxic strep
25   or toxic shock.  There's toxic shock
0005
 1   syndrome, and there's -- which has some
 2   criteria that vary a little bit than toxic
 3   strep syndrome, and there's toxic strep
 4   syndrome which is what I think this patient
 5   had, and I can explain why, if you --
 6   Q    Okay.  Just so I understand, in the
 7   literature I've seen references to, for
 8   example, TSLS, toxic shock-like syndrome.
 9   Is that synonymous with what you're using as
10   TSS?
11   A    I would just call it toxic strep
12   syndrome and leave it at that.
13   Q    Okay.  Well, all right.  And, what is
14   toxic strep syndrome?
15   A    Well, it's -- it's a clinical syndrome
16   characterized by, you know, low blood
17   pressure, multi-organ failure, you know,
18   capillary leak, multiple lab abnormalities
19   due to a strain of strep pyogenes that
20   produces a toxin, and it's sort of -- sort
21   of a host/bug interaction that is -- some
22   people have antibodies to some toxins, and
23   some strep don't make toxins, but the right
24   bug in the right patient, you can get this
25   devastating fulminant illness which is what
0006
 1   I think this patient had.
 2   Q    Okay.  Doctor, you used the
 3   terminology, clinical syndrome.  What do you
 4   mean by that?
 5   A    Well, there are blood tests you can do
 6   to determine whether someone has this, but
 7   it's a clinical diagnosis, and, you know,
 8   the -- it's the right patient with the right
 9   setting and the right findings.
10   Q    Doctor, in fact, one can have a -- a
11   fulminant Group A strep infection, invasive
12   Group A strep infection which does not
13   equate to toxic strep syndrome, correct?
14   A    Correct.
15   Q    All right, and what -- what is it, just
16   so I understand, that distinguishes the --
17   the toxic strep syndrome from when -- what
18   you might call, for lack of a better term,
19   the garden variety Group A strep invasive?
20   A    Yeah.  Well, the garden variety Group A
21   strep, you know, a flesh-eating virus, as
22   people used to call it, is more of a local
23   phenomenon where the strep is invading and
24   causing necrosis in a local tissue.  With
25   toxic strep syndrome, it's a systemic
0007
 1   illness characterized by hypotension,
 2   capillary leak, multi-organ failure, certain
 3   lab abnormalities, et cetera.
 4   Q    So, so, invasive Group A strep as
 5   opposed to TSS, the distinguishing
 6   characteristics would be, as opposed to TSS,
 7   would be that invasive Group A strep is more
 8   localized?
 9   A    Well, patients that have toxic strep
10   syndrome can have invasive strep infections.
11   Q    Uh-huh.
12   A    So, they're not mutually exclusive,
13   but, you know, I mean, strep, it's a -- it's
14   a bug that can do a lot of things.  So, it's
15   the most common cause of cellulitis; so,
16   when someone gets a scratch in their leg and
17   gets a red hot leg and a fever and sees a
18   doctor and gets antibiotics, that's the same
19   strep we're talking about.  In some
20   situations that same bug can invade the
21   local tissue causing necrosis of the tissue,
22   and -- and -- and, you know, cause
23   devitalization of a part of the body, and
24   requires surgery.  That same situation, if
25   it's a toxin-producing strain in the right
0008
 1   host, then, it can produce toxic strep
 2   syndrome.
 3   Q    Okay.  Did you read Dr. Hammil's
 4   deposition, by the way?
 5   A    Yes, I did.
 6   Q    Do you know Dr. Hammil?
 7   A    No, I don't.
 8   Q    Okay.  Now, Dr. Hammil explained to us
 9   that with -- with toxic strep syndrome, I
10   think -- I don't know that he used that
11   exact nomenclature, but I think he was
12   referring to the same thing, that you can
13   have a localized source of infection wherein
14   the -- the toxins get into the bloodstream
15   without having sepsis, or, in other words,
16   without having the bacteria get into the
17   bloodstream.
18   A    Correct.
19   Q    That is correct?
20   A    For toxic shock syndrome due to staph,
21   the definition excludes cases where the
22   staph is in the blood.
23   Q    Okay.
24   A    With toxic strep syndrome, you can have
25   it in the blood.  It's not required for the
0009
 1   definition, but as opposed to toxic shock
 2   syndrome that is staph, the CDC definition
 3   or, you know, the definition people use
 4   allows you to have a bacteremia as well as
 5   the toxin in the blood.
 6   Q    Okay.
 7   A    Are you getting it?
 8   Q    And along those lines, Doctor, it's a
 9   fact that, in most cases of toxic strep
10   syndrome, where there's a definitive finding
11   of toxic strep syndrome, there is not a
12   finding of bacteria in the blood; is that
13   true?
14   A    Incorrect.  Most cases of -- again, you
15   know, I don't know what the exact
16   percentages are, but in any or most cases of
17   toxic strep syndrome have positive blood
18   cultures as opposed to toxic shock where the
19   CDC in the late 1980's or mid-1980's
20   specifically excluded positive blood
21   cultures as, you know -- so, if you had a
22   positive blood culture with staph aureus,
23   then you didn't meet the criteria for toxic
24   shock syndrome.  That's not true for toxic
25   strep, and many of the patients with toxic
0010
 1   strep syndrome have a bacteremia.
 2   Q    But do most of them?
 3   A    You know, I don't know, honestly.
 4   Q    Okay.
 5   A    My experience has been that most do.
 6   Q    But that's your personal experience.
 7   It's not based on any literature or anything
 8   you've read?
 9   A    My impression is that most do, but I --
10   it's not something that I've specifically
11   researched, you know, recently.
12   Q    Now, getting back to garden variety
13   invasive Group A strep, Doctor, that is
14   typically something that -- in which there
15   is indeed a bacteremia, correct?
16   A    No.  I mean, most garden variety strep
17   infections don't have a bacteremia.
18   Q    But let's talk about invasive Group A
19   strep.
20   A    When you use the term "invasive," it
21   sort of suggests it's going through tissue
22   planes, and when you have necrotizing
23   fascitis due to Group A strep, some of the
24   cases have positive blood cultures, and some
25   don't.  Some of the cases do, and some
0011
 1   don't.  So, I don't think it really matters
 2   in the clinical situation whether the blood
 3   cultures are positive or not.
 4   Q    Doctor, in your mind, is invasive Group
 5   A strep synonymous with necrotizing
 6   fascitis?
 7   A    Not at all.
 8   Q    Okay.  So, in other words, you
 9   certainly can have invasive Group A strep
10   without having an element of necrotizing
11   fascitis, correct?
12   A    Correct.
13   Q    That's not uncommon, correct?
14   A    No.  I mean, most patients who get
15   Group A strep don't have an invasive
16   disease, but we see patients who have Group
17   A strep pneumonia, which can be an illness
18   where it's rapidly progressive through the
19   lungs, through the tissue planes into the
20   pleural space, and it's not necessarily a
21   necrotizing infection, but it's a very
22   invasive infection.  Group A strep has this
23   unique ability to cross tissue planes, cross
24   fascial planes that other bacteria don't
25   have.
0012
 1   Q    Doctor, certainly, invasive Group A
 2   strep can be a or can have a very fulminant
 3   course, correct?
 4   A    Yeah, sure.
 5   Q    Okay.  Okay.  Invasive Group A strep
 6   can lead to shock and death even without the
 7   release of -- of the particular type of
 8   toxins that -- that you see in TSS, correct?
 9   A    Correct, but I might add that the lab
10   findings and some of the clinical findings
11   are different.
12   Q    All right.  What -- what I'd like to
13   do, Doctor, is -- is take you through each
14   and every finding with this patient, lab,
15   clinical or otherwise, which leads you to
16   believe that what we're talking about here
17   is a case of TSS as opposed to what we've
18   been calling garden variety type invasive
19   Group A strep.
20   A    Yeah.
21   Q    Okay.  Now, first of all, Doctor --
22             MR. SCHOBERT:   Harley, can he
23   have the records back just in case he needs
24   those?
25             MR. GORDON:    Yeah.
0013
 1             MR. SCHOBERT:   I'm sorry.  I
 2   didn't mean to interrupt.
 3             MR. JACOBSON:  These are his
 4   notes.
 5             MR. SCHOBERT:   If you're going to
 6   ask him specific things --
 7             THE WITNESS:   I'd like my notes
 8   back too, if that's okay.
 9             MR. GORDON:    Yeah, here.  We'll
10   mark those.
11             MR. SCHOBERT:   Yeah, that's fine.
12             MR. JEFFERS:   Can we keep this
13   deposition even if it's from another case?
14             THE WITNESS:   Oh, let me see.
15             MR. SCHOBERT:   Two Williamses,
16   huh?  It's like, I got a call the other day
17   on a Campbell case, and I freaked out
18   because I -- if they want to ask you about
19   it, they can ask you about it, but otherwise
20   put it down.  All right.  Go ahead, Doctor.
21             MR. JACOBSON:   I just want an
22   answer to that question.
23             You can do whatever you want.
24   You know, if he objects, that means it's not
25   kosher, and if he doesn't object, you know
0014
 1   --
 2             MR. SCHOBERT:   Go ahead.
 3   BY MR. JACOBSON:
 4   Q    All right, Doctor, before we get -- I
 5   want to get -- go down a laundry list, but
 6   just so I understand --
 7             (At this time a short recess was
 8   had.)
 9   BY MR. JACOBSON:
10   Q    In TSS, you have the release or -- or
11   strike that.
12             TSS is associated with the release
13   of certain specific bacteria, pardon me,
14   certain specific toxins, correct?
15   A    It's a family of toxins.  So, there's
16   several that, you know  --
17   Q    Okay.  Now, invasive Group A strep,
18   will those bacteria release toxins as well?
19   A    There's different toxins, but they also
20   release toxins.  Especially, they release
21   toxins that allow the bacteria to pass
22   through tissue, so they're more locally
23   acting toxins, but it's a heterogeneous
24   situation with an overlap and a spectrum, so
25   with invasive Group A strep, you get toxins.
0015
 1   The clinical situation is different, but you
 2   get toxins on both.
 3   Q    Let's talk about differentiation in the
 4   lab, okay?
 5   A    Okay.
 6   Q    Group -- pardon me.  Group A strep
 7   bacteria have -- have different
 8   classifications, correct?
 9   A    Uh-huh.
10   Q    And there are some that are
11   specifically seen associated with TSS,
12   correct?
13   A    Yeah, any one can do it, but there's
14   some that do it more often, some that invade
15   more often.
16   Q    And what would those be, M-1, M-3?
17   A    M-3 is the one that's thought to be
18   more virulent.
19   Q    Okay, and additionally, there are --
20   there are -- there are toxins that are
21   released by both invasive Group A strep and
22   TSS, but the ones that are released by TSS
23   or the family of toxins are thought to be
24   more lethal generally, correct?
25   A    Yeah, it's a family of toxins called
0016
 1   super antigens where they sort of hijack
 2   your immune system and just throw it into
 3   complete chaos, and that is really
 4   responsible for a lot of the clinical
 5   manifestations.
 6   Q    Okay.  Doctor, is there anything in the
 7   records which would be able to help us
 8   distinguish at the -- at the laboratory
 9   level whether this indeed was an invasive
10   Group A strep bacteria or -- or TSS?
11   A    Well, if you look at some of the
12   nonspecific lab tests, for instance --
13   Q    Yeah.
14   A    -- very quickly, after she became ill,
15   her serum albumin dropped to 1.3, and both
16   -- you know, toxic shock syndrome is
17   characterized by capillary leak; that is,
18   the blood vessels become leaky.  So, the
19   toxin stimulates the immune system in a
20   certain way which releases all these other
21   factors, and this causes the --- the blood
22   vessel cells to sort of leak fluid and
23   protein out.  So --
24   Q    Doctor, let me -- let me get back to
25   that.
0017
 1   A    Sure.
 2   Q    That -- that wasn't what I was looking
 3   for, but I do want to ask you about that.
 4             MR. SCHOBERT:   Let the record
 5   show he was going to continue on, but if you
 6   want to change the subject, go ahead.
 7   BY MR. JACOBSON:
 8   Q    I do, and I'll get back to that. I'm
 9   talking about, were -- were there any
10   microscopic examinations of -- of the -- of
11   the -- or any serotyping of the -- of the
12   bacteria or the toxins?
13   A    There was an assay that I think was a
14   send-out lab into the lab that it said toxic
15   -- TSS toxins, and the answer is it was
16   detected, and I don't know -- I don't really
17   know what tests they did exactly, but it
18   indicated to me it was a positive test for a
19   toxic shock toxin.
20   Q    Let me just turn to that.
21             MR. SCHOBERT:   Page 46.
22             MR. GORDON:    Page 46.
23             MR. JACOBSON:  Okay.
24             MR. GORDON:    Do you have it?
25             MR. JACOBSON:  Yeah.
0018
 1   BY MR. JACOBSON:
 2   Q    Okay.  You're referring to page 46,
 3   then, Doctor?
 4   A    Correct.
 5   Q    Okay.  Do you know what tests were done
 6   specifically here?
 7   A    No.  I might add that I don't really
 8   put much emphasis on this particular test.
 9   As a matter of fact, I -- when I came to my
10   conclusions, but sometimes when they do a
11   test, they test for the toxin in the blood,
12   and sometimes they test for an antibody to
13   the toxin in the blood, and I'm  not sure
14   which test this is.
15   Q    Okay.  I mean, looking at -- looking at
16   the chemistry that's reported on 0046,
17   Doctor, we can't tell whether this is,
18   indeed, indicative of the specific type of
19   bacteria and the specific type of toxins
20   that are associated with TSS, or whether
21   they're simply toxins that can be produced
22   by invasive Group A strep, correct?
23   A    This  -- you know, looking at the test
24   they sent, it was for a toxic shock syndrome
25   test.  So, I think it's probably a test that
0019
 1   is used in diagnosing toxic shock syndrome.
 2   So, you know, I -- if this was my patient,
 3   and it mattered clinically; in other words,
 4   if I was going to change my management based
 5   on this test, I'd probably call the lab and
 6   -- and find out exactly what the test meant.
 7   Q    Do you -- do you know what test CPT
 8   86609 is, Doctor?
 9   A    No.
10   Q    Do you what test 76679 is?
11   A    Of course not.
12   Q    Okay.
13   A    It's a silly question.
14   Q    I thought you might; I didn't know.
15   Doctor, without knowing what tests they did,
16   Doctor, opining that -- that these tests are
17   -- are evidence of toxic shock syndrome, the
18   toxic shock syndrome that you're referring
19   to is speculation, right?
20   A    Well, I didn't --
21             MR. SCHOBERT:   Objection.  Go
22   ahead.
23             THE WITNESS:   I didn't base my
24   diagnosis or my -- my opinion, which is very
25   strongly held by the way, and to a high
0020
 1   degree of medical probability, that this was
 2   toxic strep syndrome is not based upon this
 3   test.
 4   BY MR. JACOBSON:
 5   Q    Okay, but -- but with respect to this
 6   test itself, Doctor, once again, using  --
 7   using what you see here and what you know
 8   about the testing to make the determination
 9   between invasive Group A strep and what you
10   call toxic shock syndrome is speculation,
11   correct?  Is that a fair statement?
12             MR. SCHOBERT:   Objection.  Asked
13   and answered.
14             MR. JACOBSON:  Yeah, he didn't
15   answer it.
16             THE WITNESS:   Well --
17   BY MR. JACOBSON:
18   Q    I'm talking specifically about these --
19   these serotyping, Doctor.
20             MR. SCHOBERT:   I'll make my same
21   objection.  Let's let him check on that.
22             THE WITNESS:   Can I answer my
23   page?
24             MR. JACOBSON:  Yeah.
25             MR. SCHOBERT:   Can we go off the
0021
 1   record for a minute?
 2             MR. SCHOBERT:   Thank you.
 3             (At this time a short recess was
 4   had.)
 5   BY MR. JACOBSON:
 6   Q    Doctor, let me just -- let me just
 7   restate my question.  Based on, Doctor --
 8   pardon me.
 9             THE VIDEOGRAPHER:   Are you ready?
10   On the record.
11   BY MR. JACOBSON:
12   Q    Based on your lack of knowledge of the
13   types of tests they did and what their
14   finding were, Doctor, would it be fair to
15   say that your opinions in this case
16   regarding the -- the strain are based on the
17   other lab findings, the clinical course of
18   the patient and not this reference
19   laboratory report on 46?
20   A    That's correct.
21   Q    All right, and -- and that is because
22   you simply don't know enough about what was
23   done here to utilize this in your opinion; a
24   fair statement?
25   A    If I was seeing this patient --
0022
 1   Q    Uh-huh.
 2   A    -- and I thought it was important to
 3   know, I would call the lab, because I'm not
 4   sure exactly what this test was.
 5   Q    Okay.
 6   A    I don't think it changes -- I don't
 7   think this test, you know, changes the
 8   syndrome, you know.  I mean, toxic shock,
 9   toxic strep is a clinical diagnosis.  It's
10   not -- there's no one test that says they
11   have it, or they don't have it.
12   Q    Well, Doctor, if you -- I mean, for
13   example, if you do a lab test, and, I mean,
14   let's say you're submitting something for a
15   publication in a peer-reviewed journal, and
16   you've got -- you've got a bacteria which is
17   M-3, and you've got -- you've got toxin,
18   endotoxin A, would you consider that that --
19   that that alone would be sufficient to
20   classify this as TSS?
21   A    Absolutely not.  I mean, you can
22   isolate a toxic that makes a toxin that the
23   patient doesn't have the syndrome.  If you
24   take the people in this room, half of us may
25   have antibodies to endotoxin A, and we -- we
0023
 1   can get infection that -- that strep and
 2   will not get sick.  So, it's a clinical
 3   diagnosis. It's a host/bug interaction, and
 4   there's no test that can tell you whether
 5   they have it or not.
 6   Q    Let me then move on, Doctor, and you
 7   were going to tell me everything in terms of
 8   the clinical picture of this patient and the
 9   laboratory findings, everything which
10   allowed you to discriminate or differentiate
11   this patient's condition from invasive Group
12   A strep.
13   A    Uh-huh.
14   Q    Okay, if you would, Doctor.  You were
15   -- you were discussing the albumin, okay?
16   A    Uh-huh.
17   Q    And when was the albumin drawn?
18   A    You know, again, I know that there was
19   one at University Hospital.  I would look at
20   the records here to see when the one was
21   done --
22             MR. SCHOBERT:   Take -- take your
23   time.  If he wants a specific time, take
24   your time and find that for him.
25             THE WITNESS:   Yeah.  I assume the
0024
 1   one at University Hospital was done soon
 2   after arrival.
 3             MR. JACOBSON:  That's UH?
 4             MR. GORDON:    Yes.
 5   BY MR. JACOBSON:
 6   Q    I -- I have -- I have an albumin
 7   reading at UH of 1.3.
 8   A    Correct.
 9   Q    With a range of 3.4 to 5.3 at 7:36 on
10   the 26th, and, Doctor, what -- what does
11   that tell you?  What does the albumin tell
12   you?
13   A    It's just real typical for toxic shock,
14   toxic strep, where the albumin drops
15   precipitously.  Because the toxin causes
16   your capillaries to leak, your blood
17   pressure drops.  You have profound,
18   refactory hypotension.  Again, now, you
19   know, one test isn't the be-all and, you
20   know, an answer in a patient like this.
21   It's just that it all fits a pattern, a
22   picture.
23   Q    Okay, Doctor, can you have a low
24   albumin finding from invasive Group A strep
25   as well?
0025
 1   A    You know, again, to drop that far this
 2   fast would be very unusual.
 3   Q    Okay.  Was there an albumin reading in
 4   -- was the albumin drawn at -- at Parma?
 5   A    I don't believe so.
 6   Q    Okay.  So, when you -- what other
 7   factors, Doctor, do you think about when you
 8   have a low albumin?
 9   A    Well --
10             MR. SCHOBERT:   Objection.  Go
11   ahead.
12             THE WITNESS:   Liver disease,
13   malnutrition, you know, starvation.
14   BY MR. JACOBSON:
15   Q    Okay.
16   A    Any kind of catabolic state.
17   Q    Doctor, when a patient is in shock from
18   any process, one would expect to see,
19   particularly if there's liver involvement
20   and elevated SGOT/SGPT, you would expect to
21   see a low albumin, correct?
22   A    Well, I mean --
23   Q    As a general rule?
24   A    As a general rule, in people who are
25   septic, the albumin drops, but the sudden,
0026
 1   precipitous drop, you know, to 1.3 is just
 2   very typical for toxic shock, toxic strep,
 3   and, again, it's not -- you know, one test
 4   doesn't tell you all that much, but you --
 5   you look at a pattern.
 6   Q    Doctor, I just want to make sure we're
 7   in agreement.
 8   A    Sure.
 9   Q    A patient who's in shock from any
10   cause, particularly if there's liver
11   involvement, you would expect there to be a
12   low albumin, correct?
13   A    I don't see how liver involvement plays
14   into it.  Liver synthesizes albumin, but it
15   has a long half life, so people who have
16   infection where the body's, you know,
17   garnering its -- its, you know,
18   infection-fighting tools, the albumin tends
19   to go down because you tend to chew up the
20   albumin for energy to help fight the
21   infection, but the precipitous drop like you
22   see with this from, you know, a healthy,
23   well-nourished person to an albumin of 1.3
24   in,  you know, a matter of hours is very
25   typical for TSS.
0027
 1   Q    Okay.  Doctor, I'm going to ask you the
 2   same series of questions at trial, and I'm
 3   going to ask you to produce any literature
 4   which supports your suggestion that a low
 5   albumin is -- is -- is considered to be a
 6   hallmark of this disease process.
 7   A    Well --
 8             MR. SCHOBERT:   First of all, I'm
 9   going to object.  He doesn't have, I don't
10   believe, the right.  You can make the
11   request.  So, go ahead.  You can answer that
12   question if you want to, but  --
13             THE WITNESS:   Well, capillary
14   leak and hypoalbuminemia are, you know, sort
15   of part and parcel of toxic shock, and I
16   don't -- you know, I haven't reviewed
17   specific literature, but it's a well known,
18   you know, commonly held knowledge about this
19   disease.
20   BY MR. JACOBSON:
21   Q    Is it a part and parcel of septic shock
22   too, Doctor?
23   A    It's -- you know, there's obviously an
24   overlap, and with septic shock, you have low
25   blood pressure and low albumin, but in this
0028
 1   patient, she had profound, profound
 2   hypotension and low albumin, and the other
 3   thing about strep is, you -- you -- you see
 4   septic patients that have it from different
 5   kinds of bacteria.  Different kinds of
 6   bacteria do different things to different
 7   people, but you usually don't see this
 8   profound hypotension from gram positive
 9   infections where there's no toxins involved.
10   Q    Doctor, certainly, a patient who has
11   invasive Group A strep has the potential,
12   particularly if untreated, to go into septic
13   shock, correct?
14   A    It's not usual.  It's not typical, and
15   I've, you know, seen quite a few patients
16   with invasive Group A strep, and profound,
17   you know, refactory hypotension is
18   distinctly unusual.  I can't say it never
19   happens, but it's not in my experience.
20   Q    Okay.  Doctor, within the realm of --
21   of bacteria that cause TSS, there may be
22   some bacteria that are more virulent than
23   others, correct?
24   A    Correct.
25   Q    And that's true within the realm of
0029
 1   invasive Group A strep?
 2   A    Yeah.
 3   Q    Certainly bacteria which are more
 4   virulent than others, correct?
 5   A    Yeah, in the case of strep, what causes
 6   hypotension is -- is the toxins.  There's no
 7   other sort of pathway, you know, common
 8   pathway that produces profound refactory
 9   hypotension.
10   Q    Well, Doctor, how is it that -- that in
11   a patient who -- who has a systemic
12   infection, that they proceed into shock, and
13   let's talk about without toxins, okay.  I
14   mean, it's -- it's certainly well known that
15   a patient with systemic infection can go
16   into shock, correct?
17   A    Correct.
18   Q    Do go into shock?
19   A    Correct.
20   Q    And what is the process that causes
21   that?
22   A    There are different pathways.  The most
23   typical one is gram negative infections
24   where a component of the bacterial wall
25   called LPS or lipopolysaccharide, you know,
0030
 1   is toxic to the immune system, turns the
 2   immune system on, causes low blood pressure.
 3   That component of the cell wall is not
 4   present in strep infections.
 5   Q    And how does the immune system cause
 6   low blood pressure?
 7   A    Well, the bacteria itself doesn't cause
 8   low blood pressure.  It's the sort of
 9   perturbation of the immune system that
10   produces, you know, cytokines, you know,
11   chemicals in the body that normally help
12   you, but in huge excess, you know, poison
13   your body, essentially.
14   Q    And -- and you're saying, Doctor, that
15   that does not happen, tend to happen with
16   gram positive bacteria?
17   A    Not in a fulminant sort of way like
18   this, you know, with this profound refactory
19   hypotension.  I mean, patients -- you know,
20   I, as an infectious disease doctor, you
21   know, every day I'm seeing someone that has
22   positive blood cultures, and it's just
23   distinctly unusual to see someone with --
24   with this degree of low blood pressure, and
25   this degree of low albumin among other
0031
 1   things due to a gram positive infection that
 2   isn't producing toxin.
 3   Q    All right, Doctor, we were talking
 4   about what you -- what you thought
 5   distinguished this patient from invasive
 6   Group A strep.  You told me the albumin
 7   levels, and the fact that she had,
 8   ultimately had profoundly low blood
 9   pressure, and I guess, Doctor, along those
10   lines, it would be your opinion that,
11   because she went into shock, she probably
12   did not have invasive Group A strep?  Is
13   that a reasonable extrapolation?
14   A    No, I don't understand that question at
15   all.  Patients that have invasive Group A
16   strep -- and there's a spectrum, I mean, you
17   know, of the -- of the different toxins.
18   Patients having invasive Group A strep can
19   have low blood pressure.  It doesn't exclude
20   it.
21   Q    Okay.
22   A    But profound hypotension like this,
23   along with the other findings, is a pattern
24   that is highly suggestive, consistent, and I
25   hold to a high degree of medical probability
0032
 1   that this was a toxic strep situation.
 2   Q    Well, Doctor, I want to make sure I
 3   understand this.  I mean, if you have a --
 4   an infection which -- one which is not
 5   producing toxins but an infection which --
 6   which is causative of low blood pressure,
 7   and that can build on itself and produce
 8   lower blood pressure; can it not?
 9   A    Again --
10             MR. SCHOBERT:  Objection.
11             THE WITNESS:   -- it's the -- it's
12   the clinical situation where someone has,
13   you know, someone has an infection, their
14   blood pressure drops a little bit.  You give
15   them some fluids; it comes back up.  This
16   was a -- this was a young woman who -- whose
17   blood pressure became so low that, despite
18   huge doses of -- of medicines to raise blood
19   pressure, it wouldn't come up, and that's
20   again distinctly unusual for a strep
21   infection in an otherwise healthy person.
22   Q    What is the process, Doctor, by which
23   gram A -- gram positive, that is, infections
24   cause low blood pressure and shock?
25   A    Well, it's -- it's again the immune
0033
 1   system gets stimulated, but it's distinctly
 2   unusual without toxins because they don't
 3   stimulate the immune system the same way
 4   that gram negative infections do.
 5   Q    But a particularly virulent gram A
 6   infection?
 7   A    Well, what -- what makes a gram A or a
 8   -- a Group A strep infection virulent is
 9   toxin production.  You know, different types
10   of toxins -- there's families of toxins,
11   but, you know, when you say virulent, it
12   almost means it's a toxin-producing strain.
13   Q    Well, Doctor, doesn't that term also
14   refer to the -- the degree of production of
15   the bacteria?
16   A    I'm not sure what you mean.  It's not a
17   medical question to me.  I'm sorry.
18   Q    Let me just -- let me just move on.
19   A    Okay.
20   Q    You discussed the albumin, Doctor.  I
21   want -- I want to get a laundry list of
22   everything about this patient's presentation
23   which leads you to believe she had TSS.
24   A    Okay.
25   Q    You mentioned the albumin.  That's one.
0034
 1   What's number two?
 2             MR. SCHOBERT:   I think he
 3   mentioned hypertension, but go ahead --
 4   hypotension.
 5             THE WITNESS:   The profound
 6   refactory hypotension.
 7   BY MR. JACOBSON:
 8   Q    Okay, what's number three?
 9   A    The rapid onset of multi-organ failure.
10   Q    What's number four?
11   A    The positive of culture for strep, so
12   we know she had Group A strep.
13   Q    Well, but -- all right.  I want -- I
14   want to -- I want to get your criteria which
15   distinguish this patient's condition, number
16   one, which support TSS but also which
17   distinguish it from invasive Group A strep.
18   A    Okay.
19   Q    The positive culture would not do the
20   latter, correct?
21   A    Correct, correct.
22   Q    All right.  The first three do in your
23   opinion.
24             MR. SCHOBERT:   Wait.  Were you
25   done with your question -- your answer?
0035
 1             THE WITNESS:   Not really, but --
 2             MR. SCHOBERT:   Would you let him
 3   finish?
 4   BY MR. JACOBSON:
 5   Q    Go ahead.
 6   A    Yeah.  It's -- you know, it's the --
 7   when you have a patient who has the
 8   findings, and you have a positive culture
 9   for strep, that just supports the diagnosis
10   of strep TSS, but the positive culture for
11   strep in and of itself doesn't make a
12   diagnosis of TSS.
13   Q    It doesn't tend to distinguish it from
14   invasive Group A strep?
15   A    Correct.
16   Q    So, I'm looking for -- I'm looking for,
17   Doctor, your findings that do both, tend to
18   make a finding of TSS and also distinguish
19   it from invasive Group A strep.
20   A    Okay.
21   Q    We've got the albumin, one; the low
22   blood pressure, two; three, the rapid onset
23   of multi-organ failure.  It's your feeling
24   that those things do both, tend to make the
25   diagnosis and tend to distinguish it from
0036
 1   invasive Group A strep?
 2   A    Correct.
 3   Q    Anything else, number four, Doctor?
 4   A    Well, again, if you look at the labs,
 5   look at her -- her enzyme levels, her -- her
 6   myoglobulin, her CPK, the sort of muscle
 7   enzyme abnormalities, very typical for toxic
 8   shock, very distinctly unusual in a sepsis
 9   syndrome not related to toxin.
10   Q    Okay.  So, that would -- so number four
11   would be the remainder of the labs at UH
12   which -- in a nutshell, the severity of the
13   lab findings at UH?
14   A    Well, I think you shouldn't belittle
15   them like that because again these are --
16   these are important distinctions I'm making.
17   The muscle enzyme abnormalities, not part of
18   sepsis, part of TSS, you know.
19   Q    What enzymes would those be, Doctor?
20   A    The -- the myoglobulin was elevated.
21   The creatinine kinase was elevated.
22   Q    Okay.
23   A    Her -- her liver function tests were
24   abnormal, and it's just not something you
25   see in garden variety sepsis.
0037
 1   Q    Okay, and anything else, Doctor, in
 2   those labs?
 3   A    Um, let's look at all of them here.  I
 4   think just those are the main ones.
 5   Q    Okay.  Now, in garden variety - we're
 6   working that term to death - but garden
 7   variety sepsis, Doctor, as we discussed, the
 8   liver function can be affected, correct?
 9   A    It can.
10   Q    All right.
11   A    Not -- not -- again not to the extent
12   in a young healthy person and not commonly
13   in gram positive infections.  It's more
14   something you see in gram negative
15   infections.
16   Q    But, Doctor, as a general rule, when a
17   patient is septic, it's not uncommon for
18   them to have, in effect, or for the sepsis
19   to have an effect on liver function,
20   correct?
21   A    It can, absolutely.
22   Q    All right.  Now, creatinine kinase is a
23   measure of what?
24   A    Muscle enzymes.
25   Q    Okay, and how is it, Doctor, that
0038
 1   toxins affect the muscle enzymes?
 2   A    Again, it's mediated through the immune
 3   system and what happens with toxic shock
 4   toxins and the chemicals the body produces
 5   in response to toxin.
 6   Q    Myoglobulin is what, Doctor; muscle
 7   enzyme also?
 8   A    Yes, muscle protein.
 9   Q    And -- and, Doctor, once again, and I
10   don't want to beat a dead horse here, but in
11   garden variety sepsis, one can also have the
12   same responses, elevation of -- of muscle
13   enzymes?
14   A    You know, I've been here at this
15   hospital 16 years doing infectious diseases,
16   and I can't recall a single patient with
17   sepsis without toxin producing that had this
18   degree of elevation of muscle enzymes with
19   no other cause.
20   Q    Doctor, how commonly do you test for
21   toxins at this hospital when -- when the
22   patient is septic?
23   A    Toxic shock toxins?
24   Q    Any -- any toxins when a patient has an
25   infection.
0039
 1   A    Well, you never do because it's -- it's
 2   not important clinically --
 3   Q    Okay.
 4   A    -- in most cases.  Occasionally,
 5   occasionally, we'll have a patient who we
 6   suspect has toxic shock due to staph or
 7   strep where we didn't isolate the organism
 8   for whatever reason, and we may do it to
 9   confirm the diagnosis, but it's primarily a
10   clinical diagnosis, and you don't -- you
11   don't rely on one lab test.  It's the
12   clinical situation, and the evolution
13   clinically and one of the things that
14   happens in toxic shock and toxic strep,
15   which, you know, this patient passed away,
16   but, you know, the patients that recover get
17   a rash on their hands that peels.  It's sort
18   of a confirmation as you follow the patient
19   clinically.
20   Q    All right.  Doctor, just so -- I want
21   to make sure I'm using the right
22   terminology.  The testing for the specific
23   type of Group A strep bacteria and the
24   testing for the specific type of exotoxin is
25   called serotyping; is that correct?
0040
 1   A    No, not -- the serotyping is -- refers
 2   to the different strains of Group A strep,
 3   different types of Group A strep.  The
 4   toxins is a different -- different test.
 5   Q    What's that called?
 6   A    A test for the toxins.
 7   Q    Okay.
 8   A    I'm not sure what you mean, but  --
 9   Q    But, in other words, Doctor, it -- it's
10   a rare situation, indeed, where you go ahead
11   and do the serotyping or the toxin testing,
12   correct?
13   A    Group -- you know, toxic strep
14   syndrome, toxic shock syndrome is relatively
15   rare, and when it does occur, you know,
16   people do order these tests.
17   Q    But, Doctor, your opinion that -- that
18   you typically don't see the elevations of
19   the muscle enzymes without a toxin is based
20   on your clinical findings and often, most of
21   the time, is made without the benefit of
22   toxin testing or serotyping, correct?
23   A    Well, again, medically, the way you
24   asked the question, and I'm not -- it just
25   doesn't make sense in that you have a -- you
0041
 1   have a septic patient.  You grow E. coli in
 2   the blood.  You know, the patient gets
 3   better.  You know, it's a teaching hospital.
 4   The residents order lots of lab tests every
 5   day, and you know the patient's septic.  You
 6   know what the bug is.  You know what
 7   antibiotics to give them.  You know how to
 8   treat the sepsis.  You're following the
 9   patient.  You don't see enzyme elevations
10   like this, but there's no reason you would
11   ever test for toxins in that situation, and
12   if you have a patient with a strep
13   infection, but you don't think it's a toxic
14   strep situation, then you wouldn't test.
15   So, I'm not sure I understand the question.
16   Q    I just want to make sure that I
17   understand, Doctor.  Your opinion that you
18   don't typically see enzyme elevation or
19   muscle enzyme elevation specifically without
20   toxins -- let me see if I can rephrase that
21   question a little more artfully, Doctor.
22             Doctor, in most of the cases
23   where you see muscle elevation secondary to
24   sepsis, and you're opining that, indeed,
25   there is toxins involved, you're making --
0042
 1   you're making or you're arriving at that
 2   opinion without doing any specific testing
 3   such as serotyping or -- or toxin testing?
 4   A    Well, there's no situation where you
 5   would do -- the question doesn't make sense.
 6   I'm sorry.  You can see muscle enzyme
 7   elevations in aggressive local infections.
 8   You don't see muscle enzyme elevations like
 9   this in garden variety sepsis, and there's
10   no reason to do any test for toxins in
11   garden variety sepsis, you know.  I mean,
12   I'm not sure.  That's why I don't understand
13   the question.
14   Q    Okay, and typically you don't do it.
15             MR. SCHOBERT:   Objection.
16             THE WITNESS:   Well, if -- if --
17   if a patient comes in with sepsis --
18   BY MR. JACOBSON:
19   Q    Uh-huh.
20   A    -- and you do blood cultures, and you
21   grow E-coli, which is the most common bug
22   regarding sepsis, there's no reason you
23   would test for any toxins or anything.
24   Q    Okay.
25   A    Toxic shock syndrome, toxic strep
0043
 1   syndrome is such a unique and fulminant
 2   illness, people tend to test for it in that
 3   situation.
 4   Q    Okay.  Doctor, what about the -- the
 5   fact that -- that invasive Group A strep, as
 6   we discussed or as you informed me, does
 7   tend to release toxins?  They may not be the
 8   same ones as released in TSS, but does tend
 9   to release toxins, correct?
10   A    Correct.
11   Q    All right, and if those toxins are
12   virulent, Doctor, more so than the typical
13   Group A strep toxin but not as much so as --
14   as those released by TSS, you can certainly
15   expect the patient to have a more fulminant
16   course than in the typical or invasive Group
17   A strep, correct?
18             MR. SCHOBERT:   If you understand,
19   go ahead.
20             THE WITNESS:   The -- the
21   fulminant course we do different things,
22   maybe local invasion, local tissue necrosis,
23   versus a systemic illness with rapid
24   capillary leak, rapid hypotension, severe
25   refactory hypotension.  So, you know, I
0044
 1   think that, you know, it's -- it's nice to
 2   put things in neat categories, but there's a
 3   spectrum here as well.  So, you know,
 4   there's, you know, patients with toxic strep
 5   syndrome have an aggressive strep infection
 6   due to toxins, and patients that have, you
 7   know, local infection, you know, are ill,
 8   but it's a pattern -- in the end, it's a
 9   pattern of illness.  It's the clinical
10   pattern that's so compelling in this case.
11   BY MR. JACOBSON:
12   Q    All right, Doctor, we -- we mentioned
13   the albumin, the low blood pressure, the
14   rapid onset of multi-organ failure and the
15   enzymes at UH in the muscle and the liver
16   enzymes.  Anything else, Doctor, which
17   permits you to establish the diagnosis of
18   TSS and distinguish it from invasive Group A
19   strep?
20   A    Just the clinical course, the rapid
21   clinical course, the --
22   Q    The fulminancy of this disease; is that
23   correct?
24   A    Correct.
25   Q    All right, anything else, Doctor?
0045
 1   A    That's the ones that come to mind.
 2   Q    Okay.
 3   A    Again, this lab test, if -- you know,
 4   if this was a scientific study, I would
 5   investigate what the lab tests meant.  I
 6   don't think it changes anything clinically
 7   in this case.
 8   Q    All right, but without that
 9   investigation, you're limited to the five
10   things you told me here for the most part,
11   correct, Doctor?
12   A    Right, but it's a clinical diagnosis,
13   and that's all you need.
14   Q    All right.  Now, Doctor, in -- in the
15   report that you authored of March 19th -- by
16   the way, was this the one and only report
17   that you authored, Doctor?
18   A    Correct.
19   Q    You indicate that the fulminant course
20   of this patient's illness is consistent with
21   TSS, and this presentation is distinctly
22   unusual for Group A strep bacteremia.  So,
23   the only reason that you gave in this
24   report, Doctor, why you felt it was
25   consistent with TSS was the fulminant
0046
 1   course.  What about the other things,
 2   Doctor, like the albumin, et cetera?  Are
 3   those -- are those thoughts that you had
 4   after the report was drafted?
 5   A    No, no.
 6   Q    Why aren't they included in the report,
 7   Doctor?
 8             MR. SCHOBERT:   Objection.
 9             THE WITNESS:   I mean, I --
10             MR. SCHOBERT:   This is
11   argumentative.  Go ahead.
12             THE WITNESS:   I guess --
13             MR. JACOBSON:  It's not
14   argumentative.  I'm asking him why it's not
15   in his report.  I don't know why it's
16   argumentative.
17             MR. SCHOBERT:   It would take 100
18   pages of a report, but go ahead.
19             MR. JACOBSON:  Well, I mean, with
20   all due respect, counsellor, he does
21   indicate his opinions in his report as to
22   why it's consistent with TSS.  I just heard
23   four more.
24   BY MR. JACOBSON:
25   Q    I want to know why.
0047
 1   A    I guess in the report I didn't feel
 2   like I was called to go into detail on every
 3   aspect of my opinion.  I think the key thing
 4   in the report is that my strongly held
 5   opinion is TSS, and I guess the purpose of
 6   the proceedings today is for you to discover
 7   the background of my opinions, and I guess
 8   that's -- not being a lawyer, I guess that's
 9   my understanding of this process, is that,
10   you know, your report is sort of your
11   conclusions from looking at the records,
12   and, you know, every -- you know, every
13   specific reason for your opinions, that's
14   why you have a deposition.
15   Q    Doctor, did you read the report of Dr.
16   Flora who's another expert for Dr. Hsieh?
17   A    I don't think so.
18   Q    Okay.  Dr. Flora indicates in his
19   report that the presentation is atypical for
20   toxic shock syndrome for the following
21   reasons, and this is your co-expert.  We're
22   deposing him tomorrow.  He says that -- he
23   says, "Since the 1940's, the incidence of
24   Group A streptococcal sepsis except for an
25   epidemic in 1968 --" I guess that's a typo
0048
 1   there.  "In the late 1980's several articles
 2   described this toxic shock-like syndrome.
 3   The course is fast and fulminant.  Mortality
 4   is between 30 to 60 percent.  The closer the
 5   onset is to delivery, the higher the
 6   mortality.  The presentation is atypical
 7   compared to other causes because the signs
 8   of the pelvic infection are diffuse and non-
 9   localizing.  This was the case in this
10   patient.  They also present with very high
11   fevers.  This was not the case in this
12   patient."
13   Q    So, doctor, with respect to the -- the
14   presentation of a high fever, okay, would
15   that aspect of this patient be atypical?
16             MR. SCHOBERT:   Objection.  Go
17   ahead.
18             THE WITNESS:   Could -- could I
19   look at the report just so I can make sure
20   I'm reading it in context?
21   BY MR. JACOBSON:
22   Q    Sure, sure.
23   A    Since --
24             MR. SCHOBERT:   I renew my
25   objection to the characterization of the
0049
 1   report.
 2             THE WITNESS:   Yeah, I -- I think
 3   -- I think you're misinterpreting what Dr.
 4   Flora is saying here.
 5   BY MR. JACOBSON:
 6   Q    Well, isn't Dr. Flora saying that --
 7   that typically in toxic shock-like syndrome,
 8   the patient presents -- has a rapid onset of
 9   high fever?  Is that -- isn't that what he's
10   saying?
11   A    Can you show me where you think he says
12   that, and I'll --
13   Q    He says, "They also present with very
14   high fevers.  This was not the case in this
15   patient."
16   A    Yeah.  Now, I'm a bit confused by what
17   he's saying.  I think he says -- I think
18   he's distinguishing fulminant strep
19   infections in postpartum women from other
20   postpartum infections, and I think he says
21   the presentation of fulminant strep
22   infections is atypical compared to other
23   causes, and then, when it says also they
24   present with high fevers, I'm not sure what
25   he means by that, and I don't think -- I
0050
 1   don't think the higher the fever has any --
 2   you know, any relevance at all in
 3   distinguishing, in my opinion, the type of
 4   infection it is, and I don't think Dr. Flora
 5   is  -- you know, I have a different
 6   perspective.  I'm an infectious disease
 7   doctor, so, you know, I think about these
 8   things in a different way.
 9   Q    Doctor, have you ever heard the term,
10   streptococcal pyrogenic exotoxins?
11   A    Sure.
12   Q    Okay.  Those are the exotoxins which
13   are specifically associated with toxic
14   shock-like syndrome or toxic shock syndrome,
15   correct?
16   A    Well, it's a class of toxins that are
17   common to a lot of bacteria, but as a
18   general class, sure.
19   Q    All right, and the streptococcal
20   pyrogenic exotoxins or SPE are characterized
21   by the following:  rapid onset of fever,
22   correct?
23   A    Correct.
24   Q    High fever greater than 38.9 degrees
25   Celsius or 102.2 degrees Fahrenheit, correct?
0051
 1   A    I have never seen any literature where
 2   fever was used to distinguish this type of
 3   infection from other fevers.  So, I suppose
 4   you're quoting an article or textbook.  You
 5   know, I'm assuming that, and I -- if someone
 6   says that, fine.  It's just not something
 7   that I've found other literature where the
 8   higher the fever is -- is an important
 9   factor.  The -- the blood pressure and the
10   capillary leak and the low albumin and the
11   multi-organ failure, you know, which I
12   mentioned, but the high -- how high the
13   fever is, I think is, in my opinion, not
14   important.
15   Q    Isn't it true, Doctor, that the
16   specific exotoxins that are thought to be
17   associated with toxic shock-like syndrome
18   are thought to produce a rapid and high
19   fever, rapid onset and high fever?
20   A    You know, every patient is different.
21   Every host is different, and I think they
22   produce -- you know, when they produce a
23   syndrome, it's characterized by the things,
24   and I won't repeat myself.  They cause
25   fever.  You know, you see patients who have
0052
 1   sepsis with no fever.  You see patients who
 2   have sepsis or -- or infections like this
 3   with low-low temperatures.  So, um, you
 4   know, as -- as compared to what do they
 5   cause a high rate of fever?  I mean,
 6   patients who have other -- you know, this is
 7   -- you know, other types of infections.  So,
 8   I've never -- you know, I've -- I've given
 9   lectures on this.  I've thought about this.
10   I've seen patients with this.  I've never,
11   ever once in my career seen a situation
12   where someone discussed the rapidity or
13   height of the fever as helping you
14   distinguish different types of strep
15   infections, in my -- in my experience.
16   Q    As a general rule, Doctor, the toxins
17   that are released by toxic shock syndrome
18   are thought to cause, once again as a
19   general rule, a rapid onset of a high fever.
20   A    As a clinician, as someone who takes
21   care of patients and manages patients, I
22   don't know what that means.
23   Q    Uh-huh.  Doctor, the -- the name of the
24   exotoxins, streptococcal pyrogenic
25   exotoxins, suggests that these are toxins
0053
 1   that cause a fever, correct?
 2   A    Yeah, and again this goes back to the
 3   historical evolution of how these were
 4   discovered and characterized, and a lot of
 5   the names for toxins are based on scientific
 6   understanding that's changed dramatically.
 7   I think if these were named today, they'd be
 8   named differently.
 9   Q    So, you won't agree with me, then,
10   Doctor, that, as a general rule, that toxins
11   that are released or thought to be released
12   by a bacteria causing toxic shock syndrome
13   have a rapid -- tend to cause a rapid onset
14   of a high fever?
15   A    I'm not saying that that statement is
16   untrue.  I just don't know what it means
17   clinically, you know, how high, how rapid,
18   and -- and in all the cases of
19   tampon-associated toxic shock and toxic
20   strep syndrome I've seen discussed at case
21   conferences, morbidity/mortality
22   conferences, grand rounds, I've never, ever
23   seen that used in any clinical meaningful
24   way.  So, as a clinician who takes care of
25   patients, I'm just saying I've never seen
0054
 1   that issue come up in these patients.
 2   There's other things we look for as clues to
 3   the presence of this disease.
 4   Q    All right, well, Doctor, I understand.
 5   I think what you're saying is that -- is
 6   that that's not anything that's diagnostic?
 7   A    Or clinically relevant.
 8   Q    Okay, but in terms of -- of attempting
 9   to distinguish whether this was a -- a toxic
10   shock syndrome or something else, one thing
11   that we can consider are the -- the known
12   course of SPE's, correct?
13   A    You know, I -- I'm not sure I
14   understand the question, but I've --
15             MR. SCHOBERT:   I'll object, then.
16   Go ahead.
17             THE WITNESS:   I did not consider
18   the height or the rapidity of the fever to
19   be important in the clinical diagnosis of
20   toxic strep syndrome, unequivocally.
21   BY MR. JACOBSON:
22   Q    Doctor, in the cases that you've
23   experienced with toxic strep syndrome and
24   the ones you've read about in the
25   literature, those patients have tended to
0055
 1   have a rapid onset of high fever, true?
 2   A    It's not something I recall.  What you
 3   -- what you remember about these patients as
 4   a clinician is the rapid onset of
 5   hypotension and refactory hypotension, and
 6   that's the clue to toxic shock, not, you
 7   know, you -- you know, you have -- I saw a
 8   patient today who has a fever of 40 that's
 9   not due to infection, and, you know, lots of
10   things cause fevers, and the height and
11   rapidity of the fever have not a lot of
12   clinical relevance.
13   Q    Doctor, for cases of toxic shock
14   syndrome, toxic strep syndrome, does there
15   tend to be a cutaneous source?
16             MR. JEFFERS:   I'm sorry?
17   BY MR. JACOBSON:
18   Q    Does there tend to be a cutaneous
19   source?
20   A    Well --
21   Q    As a general rule.
22   A    I was about to answer.  The strep
23   colonized human skin.
24   Q    Uh-huh.
25   A    And because, you know, once when the --
0056
 1   when the flesh-eating virus scare was in the
 2   news, you know, I was on television talking
 3   about this, and someone called in on, like,
 4   the noon news and said:  well, where does
 5   this bacteria exist?  Well, it normally
 6   exists on skin, and it is passed from person
 7   to person that way, and, so, as a general
 8   rule, the skin is  -- you become colonized,
 9   and then it can invade and -- and, you know,
10   cause disease.
11   Q    Is there a cutaneous source in -- in
12   this case?
13   A    Well, I guess I think the assumption in
14   this case, which I guess, you know, if I use
15   the word "assumption" maybe it's dangerous,
16   but the overwhelming, you know, likelihood
17   in this case is that she was colonized in
18   her vagina, which is the same, you know, the
19   same situation as skin.  I think it's the
20   same animal we're talking about.
21             MR. SCHOBERT:   Would you like
22   some water or coffee or something?
23             THE WITNESS:   I'm okay, sure.
24             MR. JEFFERS:   You can get me
25   some, if you wish.  Do you see that spigot
0057
 1   over there?
 2             MR. SCHOBERT:   Then you'd start
 3   expecting it.
 4   BY MR. JACOBSON:
 5   Q    Doctor, is there a relationship between
 6   the magnitude of exotoxin production and the
 7   severity of the patient's clinical symptoms?
 8   A    Again, there's a complex relationship
 9   between the host and the bacteria.  Some
10   people make antibodies to these toxins, and
11   if you have antibodies, then you're probably
12   not going to get real sick unless there's a
13   ton of toxin produced.  If you don't have
14   antibodies, then a little bit of toxin goes
15   a long way.  So, it's -- it's not a simple
16   question where you can answer it that way.
17   Q    Well, I understand that there are
18   variables, Doctor, okay?  But as a general
19   rule, can we say that the more exotoxin
20   production one has, the more -- or the more
21   severe one can expect the clinical symptoms
22   to be?
23   A    It depends on the patient, so I
24   wouldn't say that.
25   Q    Well, I mean, you've already described
0058
 1   one variable, Doctor; that is the antibody
 2   production.  What other variables -- you say
 3   it depends on the patient.  Tell me what
 4   other variables there are.
 5   A    Whether the patient's immune to that
 6   strain of strep, whether the patient has
 7   antibody against some or all of the toxins,
 8   how the patient's immune system responds to
 9   toxins.  In other words, these toxins act by
10   binding to immune cells and turning them on,
11   and everybody's immune cells are different,
12   and, you know, some people are very
13   susceptible to a little bit of the toxin.
14   So, I think to say that in a specific
15   patient it doesn't -- it doesn't really --
16   there's too many variables to say that it
17   affects the outcome.  Again, in general, the
18   more toxin -- this is agreement with your
19   statement to me.  Again, in general,
20   especially if somebody has antibodies, the
21   more toxin is probably important.
22   Q    Okay.  So, in general, with all other
23   things being equal -- or what is that,
24   cetero par abus? -- is that what -- all
25   other things being equal in terms of
0059
 1   variables, there is a relationship between
 2   the magnitude of the exotoxin production and
 3   the severity of the clinical symptoms?
 4             MR. SCHOBERT:   Objection.
 5             THE WITNESS:   It may not matter
 6   in a specific patient, but in a patient that
 7   has antibodies, they don't get sick unless
 8   the strep makes a lot of toxins.  So, in a
 9   patient that has antibodies, it probably
10   makes a difference.
11   BY MR. JACOBSON:
12   Q    So, your answer is a qualified yes?
13             MR. SCHOBERT:   Objection.
14             THE WITNESS:   I think just
15   qualified.
16             MR. SCHOBERT:   It is what it is.
17             THE WITNESS:   Just qualified,
18   period.
19   BY MR. JACOBSON:
20   Q    Do different strains, Doctor, of Group
21   A strep bacteria cause a greater magnitude
22   of endotoxins or a bigger production of
23   endotoxins or exotoxins?
24   A    I think you should use the term
25   "exotoxins."  Yes, different strains do,
0060
 1   sure.
 2   Q    All right.
 3   A    Endotoxins are gram negatives.
 4   Q    What is an exotoxin, Doctor?
 5   A    It's a toxin that -- that -- you know,
 6   it's a protein or a glycoprotein that the
 7   bacteria produces and releases, you know,
 8   from the cell.
 9   Q    It's a poison to the body, correct?
10             MR. SCHOBERT:   Objection.
11             THE WITNESS:   Well, not
12   necessarily.  I mean, there's body -- you
13   know, there's -- the term, toxin, I think
14   implies that it's not something that's good
15   for you.
16   BY MR. JACOBSON:
17   Q    Okay.  Now, how does the body fight
18   toxins?
19   A    With antibodies.
20   Q    Okay, and -- and what do the antibodies
21   do?
22   A    They bind the toxin and neutralize it.
23   Q    Okay.  Is there any particular chemical
24   that is released to neutralize it?
25   A    To neutralize the toxin?
0061
 1   Q    Yes.
 2   A    No.
 3   Q    Okay.  You say they bind.  In other
 4   words, they attach themselves to the toxin?
 5   A    Uh-huh.
 6   Q    And how are antibodies produced?
 7   A    It's sort of like Immunology 101 here.
 8   You know, you have certain immune cells that
 9   make antibodies in response to antigens, you
10   know, to certain -- certain proteins.
11   Q    Doctor, do most cases of toxic strep
12   syndrome or -- or toxic strep syndrome cause
13   the patient to have a rash?
14   A    It's something that evolves late in the
15   illness.  So, patients that survive will
16   often have a rash, but it's not something
17   you see the first few days.
18   Q    Correct me if I'm wrong, Doctor.  My --
19   my reading is, if the patients -- my reading
20   of the literature is the patients will have
21   a rash early on in the course, but it
22   doesn't tend to spread or desquamate until
23   later.  Now, I'm incorrect in that regard?
24   A    Well, it depends what you say is early
25   on.  Typically you don't see it in the first
0062
 1   couple of days.
 2   Q    You don't see the spread or the rash at
 3   all?
 4   A    The rash.
 5   Q    Doctor, the difference between toxic
 6   shock and septic shock is that septic shock
 7   suggests no toxins; is that correct?
 8             MR. SCHOBERT:   Objection.
 9   BY MR. JACOBSON:
10   Q    Let me -- let me rephrase the
11   question.
12   A    Okay.
13   Q    What is the difference between toxic
14   shock and septic shock?
15   A    Septic shock in the last, you know, ten
16   years, there's been a lot of things in terms
17   of definitions and systemic inflammatory
18   response syndrome.  So, I think there's some
19   overlap between the two in the way the terms
20   are used, but toxic shock implies that the
21   bacteria makes a toxin that's doing the
22   things I told you about.  Septic shock is
23   sort of the patient who has shock and
24   positive blood cultures, although, I guess,
25   well --
0063
 1   Q    In terms of the cases that you see, as
 2   one opposed to the other, Doctor, does one
 3   predominate over the other?  Do you see more
 4   cases of septic shock or toxic shock?
 5   A    Many more cases of septic shock.
 6   Q    Okay.
 7   A    That's -- fortunately, this kind of
 8   presentation is rare because it's, you know,
 9   a fulminant and devastating illness.
10   Q    So, sepsis without toxin has the
11   potential to produce shock and commonly does?
12   A    Due to gram negative organisms.  It's
13   unusual, but it does, yeah.  The -- the
14   clinical picture here, I think, is quite
15   clear, and the clinical picture is different
16   due to septic shock from nontoxin-producing
17   strains, but it -- in broad categories, you
18   can have shock without toxins the way we
19   talk about toxins in this case.
20   Q    All right.  Doctor, you make the
21   statement in your report that there's about
22   an 80 percent mortality rate.
23   A    Uh-huh.
24   Q    Where do you get that from, Doctor?
25   A    It's just being involved in these
0064
 1   cases, reviewing the literature over the
 2   years, textbooks.  I can't, you know, sit
 3   here today and point to a specific
 4   reference, but it's -- I think it's -- for,
 5   you know, fulminant toxic strep syndrome
 6   like this patient, I think it's a widely
 7   held opinion.  I think -- I think other
 8   experts in the case sort of agree with that
 9   ball park figure.
10   Q    Well, Dr. Flora says that it's got a
11   mortality rate of 30 to 60 percent.  He's
12   also an expert for the defense and Dr.
13   Hsieh, and he's done a literature search.
14   Do you disagree with that?
15   A    No, I think 60 percent sounds better,
16   but, again, it depends on -- if you look at
17   the literature, it depends on, you know, is
18   it full-blown fulminant TSS like this
19   patient had?  So, I think there's -- you
20   know, if I was to discuss this with him, I
21   think we'd probably come to a meeting of the
22   minds, and we're saying the same thing.
23   Q    How about 30 percent?  He says 30 to 60
24   percent.
25   A    I think for a fulminant case like this,
0065
 1   that's very, very low, and I think, again,
 2   it depends what literature he's looking at,
 3   OB/GYN literature and when it was, but a
 4   fulminant case like this, I would disagree
 5   with him.
 6   Q    All right.  Now, Doctor, being that --
 7   strike that.
 8             Doctor, how many cases of toxic
 9   strep syndrome have you treated or been
10   involved in?
11   A    Probably half a dozen.
12   Q    Okay, and how about for women who are
13   in the puerperal period?
14   A    I don't think any.
15   Q    Okay.  Now, we can agree, Doctor, that
16   some people with toxic strep syndrome
17   survive, correct?
18   A    Correct.
19   Q    And what I'd like to do is discuss with
20   you the variables and why some survive and
21   why some don't, okay?
22   A    Uh-huh.
23   Q    Now, one variable I think we've already
24   discussed is the nature of the strain.  Is
25   that --
0066
 1   A    Sure.
 2   Q    Is that true?
 3   A    (At this time the witness nodded his
 4   head.)
 5   Q    All right.  Another variable, Doctor,
 6   that I think you see commonly in -- in any
 7   such similar discussion is how healthy was
 8   the patient to begin with.
 9   A    I -- I think it's more the host
10   response, the specific host response, and
11   the most important variable is the specific
12   host response to a specific strain, and the
13   susceptibility of a specific host to toxins.
14   Q    Uh-huh.  Doctor, the overall health of
15   the patient, is that -- and the patient's
16   ability or the body's ability to set its
17   compensatory mechanisms in motion, is that
18   one of the variables?
19   A    You know, it's one of the things that's
20   sort of fascinating and frightening about
21   Group A strep is it tends to cause severe,
22   fulminant illness in otherwise healthy
23   people, the cases of flesh-eating virus, for
24   instance.  So, this is -- this is one
25   bacteria where the -- the health of the
0067
 1   person isn't as big a factor as it is, you
 2   know, like, in kidney infections or, you
 3   know, pneumonia where it really does make a
 4   big difference.
 5   Q    Doctor, is it your testimony here that
 6   all other things being equal in terms of the
 7   body's immune response and the host response
 8   and the nature of the strain, okay, that --
 9   that an unhealthy patient is -- is -- has
10   the same chance to survive as a healthy
11   patient?
12   A    I think it's extremely close, that in a
13   fulminant case like this, that the health of
14   the patient is not an important variable.
15   Q    Is it a variable, Doctor?  Will it
16   affect outcome?
17   A    I don't think there's literature on
18   this type of patient to suggest that it is.
19   You know, you don't -- you don't see -- you
20   don't see that many cases like this, and,
21   so, if you look at just Group A strep --
22   Group A strep infections as a whole, I think
23   it would be a more significant variable.
24   For a fulminant toxic strep syndrome like
25   this, I don't think there's any medical
0068
 1   literature that specifically addresses that
 2   question.
 3   Q    Doctor, the literature that you've
 4   reviewed that you can't quote us for this 80
 5   percent, does that literature specifically
 6   address women in the puerperal period?
 7   A    Some of it.
 8   Q    Okay.  Do you know that for a fact?
 9   A    Yes.
10   Q    Can you quote me that portion of the
11   literature that addresses women in the
12   puerperal period?
13   A    You know, it's just from looking at a
14   lot of articles and textbooks.  I -- you
15   know, as I sit here today, you know, I can't
16   quote you chapter and verse, but it's --
17   it's something I think is an accepted fact.
18   Q    Well, I want to move on here, Doctor.
19   I'm going to ask you at trial whether the
20   health of the patient is a variable which
21   affects outcome, and basically your answer
22   is no.  Is that correct?
23   A    I'm saying in toxic strep syndrome,
24   it's not an important variable.  You know,
25   it's -- it's -- the mechanism of the
0069
 1   disease, the way the toxin attacks the
 2   person, the -- you know, it's almost your
 3   own immune system is doing you in.  So, it's
 4   almost the healthier, the worse you do.  In
 5   general and septic infections, the health is
 6   a -- is a key factor, but in a fulminant
 7   toxic strep, I don't think it's a key
 8   factor.  Is that enough detail?
 9   Q    Doctor, the bacteria that are dead will
10   not release the exotoxins; is that correct?
11   A    Correct.
12   Q    All right.  So, if we get right on this
13   infection, the patient has a better chance
14   of survival; is that correct?
15             MR. JEFFERS:   Objection.
16             THE WITNESS:   Well, one of the --
17   one of the -- there's a couple of unique
18   things about Group A strep that makes
19   antibiotics not make a difference in the
20   first 24 hours, you know, unfortunately.
21   One is that Group A strep tends to cause an
22   invasive infection where it devitalizes the
23   tissue, and when you have devitalized
24   tissue, you have bacteria living there,
25   producing toxin, but there's no blood flow
0070
 1   into the tissue to bring the antibiotics in.
 2   That's number one.
 3             Number two, there's something
 4   called the eagle effect where you get a high
 5   density of organisms where they stop
 6   dividing but keep pumping out toxin, and the
 7   commonly used antibiotics like the one that
 8   was ordered in this case, the Unasyn or
 9   Imeperam or et cetera, they don't act
10   against dividing organisms.  So, you know,
11   when you have this situation, the paramount
12   -- the paramount feature of toxic shock
13   syndrome due to staph or strep is to remove
14   -- surgically remove the source of infection
15   because it's well recognized that
16   antibiotics alone or antibiotics have little
17   role in the early management of this -- this
18   condition.
19   Q    Now, Dr. Hammil indicated in his
20   deposition, and I didn't understand exactly
21   why, but he indicated that in obstetrical
22   cases, they commonly don't do that as
23   opposed to in the garden variety case they
24   do.  Do you know why that is, Doctor?
25             MR. SCHOBERT:   Objection, but go
0071
 1   ahead.  You can answer.
 2             THE WITNESS:   I think --
 3             MR. SCHOBERT:   I think the
 4   general question is to --
 5             THE WITNESS:   Yeah.
 6             MR. SCHOBERT:  -- if he knows why.
 7             THE WITNESS:   Can I answer --
 8             MR. SCHOBERT:  I don't want him to
 9   answer as to what Dr. Hammil said.
10             THE WITNESS:   Yeah.  This is -- I
11   think in a case like this, you need a
12   crystal ball.  You need -- you need a
13   crystal ball to say this patient is going to
14   develop toxic strep syndrome, and the best
15   chance for survival is early, you know,
16   surgical removal of the site of infection
17   which is the uterus.  So, I mean, you're
18   talking about removing a woman's
19   reproductive potential on -- you know, on a
20   hunch, and, you know, if someone has an
21   abscess in their leg, and they're -- they're
22   infected, you know, you get it out as soon
23   as you can.  Most postpartum endometritis
24   patients don't have an outcome like this one
25   because it's not a toxic strep syndrome.  If
0072
 1   you had a crystal ball, if you knew this
 2   patient was going to have a fulminant TSS
 3   infection, the best chance for survival
 4   would be surgical removal early on, to
 5   remove the source of infection, and I
 6   believe one of your experts said that. I can
 7   look at my notes and see which one.  I think
 8   one of your experts said, you know, the best
 9   chance for survival in a fulminant TSS due
10   to endometritis is removal of the uterus.
11   Q    All right.  Let's -- let's talk about
12   the devitalized tissue and the eagle effect,
13   two reasons -- the only two reasons, I
14   think, that you've given me why earlier
15   treatment of this disease process does not
16   affect outcome, correct?
17   A    Well, if you have a crystal ball --
18   Q    Uh-huh.
19   A    -- and you know this is going to
20   happen, and you give antibiotics before the
21   strep, you know, sets up shop, then you can
22   probably nip it in the bud, but that's not
23   -- that's not how people -- you don't just
24   give antibiotics to every patient all the
25   time, you know, for no clear reason.  Once
0073
 1   infection sets up, and once you have a Group
 2   A strep infection in tissue, for the reasons
 3   I gave you, antibiotics alone are not
 4   effective and don't affect the outcome, and
 5   I don't know -- again, I -- the way you
 6   asked the question I guess you implied there
 7   should be more reasons than those two.
 8   Q    No, I wanted to know if you've got any
 9   more reasons.
10   A    No.
11   Q    Okay.  Doctor, if you have a patient --
12   A    Well, I'll give you one more reason,
13   sorry.
14   Q    Okay.
15   A    Again, it's not that the bacteria is
16   invading the patient's body.  It's the
17   toxins.  So, you know, you can have -- you
18   can give antibiotics, and you can kill the
19   bacteria that are in the blood, but if you
20   don't get at the source of the infection, a
21   localized infection where the toxins are
22   being created, the patient -- the outcome's
23   the same.
24   Q    Doctor, where was the devitalized
25   tissue in this case?
0074
 1   A    I think the localized infection was in
 2   the uterus.
 3   Q    Okay, was it small or large, or do you
 4   know the difference?
 5   A    Relative to what I'm not sure.
 6   Q    Do you know -- do you know the
 7   dimensions, Doctor?
 8   A    No.  I'm not sure that that's a
 9   clinically relevant question.
10   Q    If you have a case, Doctor, where you
11   have concomitant bacteremia along with
12   colonization of the tissue, as you indicated
13   it happens occasionally -- commonly,
14   correct?
15   A    I'm not sure I said "commonly," but --
16   Q    And antibiotics are rendered when the
17   bacteria -- bacteremia manifests itself in
18   terms of some symptoms or laboratory
19   changes, i.e. get it on very early, the
20   patient will indeed have a better prognosis,
21   true?
22             MR. SCHOBERT:   Objection.
23             THE WITNESS:   When I -- when I
24   get called as an infectious disease
25   consultant to see a patient who I think has
0075
 1   invasive Group A strep, toxic strep
 2   syndrome, my first call is not the pharmacy
 3   for antibiotic.  My first call is to a
 4   surgeon because that's more important than
 5   antibiotics, and -- and I think the removal
 6   of the source of infection is -- is --
 7   outweighs by so many orders of magnitude
 8   antibiotics that that's the overriding
 9   issue.
10   BY MR. JACOBSON:
11   Q    Okay.  Part of the reason for that is
12   that the patients who you're seeing have
13   come into the hospital because of their
14   symptoms, correct?  In other words, those
15   patients are farther along in terms of the
16   course of the illness than this patient as a
17   general rule, true?
18             MR. SCHOBERT:   Objection.
19             THE WITNESS:   They usually don't
20   acquire the infection in the hospital, or
21   the infection doesn't manifest -- you know,
22   they're not in the hospital for other
23   reasons and the infection occurs, but in
24   terms of, you know, when it becomes
25   clinically apparent, I'm not sure there's a
0076
 1   big difference.
 2   BY MR. JACOBSON:
 3   Q    Doctor, isn't it true that the patients
 4   that you have treated for toxic shock
 5   syndrome, toxic strep syndrome, pardon me --
 6   let me just start from the beginning.  The
 7   patients that you have treated for toxic
 8   strep syndrome, I think you said there were
 9   six of them?
10   A    Yeah, yeah, that I recall.
11   Q    Okay.  How many of them were in the
12   hospital when -- when they began to be
13   symptomatic as opposed to came into the
14   hospital because of the symptoms?
15   A    How many of them were in the hospital
16   already?
17   Q    Yes.
18   A    When they became symptomatic?  Well,
19   you know, people come to the hospital when
20   they have signs of local infection, and the
21   situation progresses.  So, the recognition
22   of the problem is -- you know, is probably
23   similar.
24   Q    Doctor, were any of the patients in the
25   hospital when they began to become
0077
 1   symptomatic?
 2   A    When they began to manifest --
 3   Q    Symptoms of the infection.
 4   A    Well, the --
 5             MR. SCHOBERT:   Objection.
 6             THE WITNESS:   Patients will come
 7   in manifesting symptoms of infection, but
 8   not a presentation necessarily with manifest
 9   symptoms of TSS.
10   BY MR. JACOBSON:
11   Q    Okay.  So, the -- so -- so, with the
12   six patients you treated, they were outside
13   the hospital setting, had some symptom which
14   presumably brought them to the hospital,
15   correct?
16   A    Correct.
17   Q    As opposed to this patient who was in
18   the hospital for other reasons when she
19   became symptomatic, correct?
20   A    Correct.
21   Q    All right.  With a patient such as
22   this, Doctor, one has the opportunity, the
23   unique opportunity to treat this disease
24   process at a very early stage, correct?
25             MR. JEFFERS:   Objection.
0078
 1   BY MR. JACOBSON:
 2   Q    If recognized; is that true?
 3             MR. JEFFERS:   Objection.
 4             MR. SCHOBERT:  Objection.
 5             THE WITNESS:   Again, I'm not
 6   sure that the question has clinical
 7   relevance.  Again, if you have a crystal
 8   ball, she's in the hospital, and you can
 9   give antibiotics, but I'm not sure that, you
10   know, it's a clinically relevant question.
11   BY MR. JACOBSON:
12   Q    Doctor, but I do need an answer to it,
13   nonetheless.
14   A    Okay.
15             MR. SCHOBERT:   Well, you got an
16   answer to it.
17             MR. JACOBSON:   Well, that wasn't
18   an answer.
19             MR. SCHOBERT:   You know, it's not
20   the answer you wanted.
21             MR. JACOBSON:   No.
22             MR. GORDON:     Repeat the
23   question.
24             MR. JACOBSON:   That wasn't
25   responsive to the question, with all due
0079
 1   respect to the --
 2             MR. SCHOBERT:   I've given you due
 3   deference to ask the same question a dozen
 4   times on a variety of subjects, but it's
 5   getting to the point where he doesn't have
 6   to keep repeating himself.  You can argue it
 7   at trial, but you got an answer.  Now,
 8   answer it -- ask him one more time, and
 9   he'll give you the answer, and then we'll
10   move on.
11             MR. JACOBSON:   Can you read it
12   back, please?
13             (At this time the question was
14   read back.)
15             MR. SCHOBERT:   Objection.
16             MR. JEFFERS:   Objection.  Go
17   ahead, Doctor.
18   BY MR. JACOBSON:
19   Q    Doctor.
20   A    I said I don't think the question has
21   clinical relevance in that you don't have a
22   crystal ball knowing a patient's going to
23   get the syndrome, and usually you don't
24   initiate the key therapy which is surgery
25   until you know the patient has this
0080
 1   syndrome, and you don't give antibiotics,
 2   you know, when the patient's, you know,
 3   having -- you know, when the bacteria first
 4   get where they are, the patient doesn't show
 5   signs of illness.  So, the patient was in
 6   the hospital.  Had the doctors had a crystal
 7   ball, I guess there was an earlier
 8   opportunity compared to other patients, but
 9   I don't think it's a clinically relevant
10   question.
11   Q    If, indeed, the disease can be treated
12   at a very early stage, if we have that -- if
13   we're fortunate to have that opportunity, is
14   that a variable that can affect outcome?
15             MR. SCHOBERT:   Objection.  Go
16   ahead.
17             THE WITNESS:   I think the -- the
18   key variable is surgical removal of the site
19   of infection.  Whether other variables are
20   as important, I don't know.
21   BY MR. JACOBSON:
22   Q    Okay, but, Doctor, I understand that,
23   but what I want to know with respect to this
24   one variable:  is that a variable that can
25   affect outcome?
0081
 1             MR. JEFFERS:    Objection.
 2             MR. SCHOBERT:   Objection.  Asked
 3   and answered.
 4             THE WITNESS:   In -- in any
 5   infection or in TSS?
 6   BY MR. JACOBSON:
 7   Q    In T -- in this patient's infection,
 8   Doctor, okay.  Let's just say in TSS in
 9   general.
10             MR. SCHOBERT:   Objection.
11             MR. JEFFERS:   Objection
12             MR. KADLEC:    Objection.
13   BY MR. JACOBSON:
14   Q    If one has the opportunity to treat the
15   disease at an earlier stage, is that a
16   variable that can affect outcome?
17             MR. SCHOBERT:  Objection. Go
18   ahead.
19             MR. JEFFERS:   Objection.
20             MR. KADLEC:    Objection.
21             THE WITNESS:   If you can
22   surgically remove the site of infection,
23   that will change outcomes.
24   BY MR. JACOBSON:
25   Q    Okay, and, Doctor, if you can get
0082
 1   antibiotics to the patient before the --
 2   before the bacteria has an opportunity to
 3   colonize extensively, Doctor, can that
 4   affect outcome?
 5             MR. KADLEC:    Objection.
 6             MR. SCHOBERT:   Objection.
 7             MR. JEFFERS:   Objection.
 8             THE WITNESS:   To colonize
 9   extensively?
10   BY MR. JACOBSON:
11   Q    Yes.
12   A    Yes.  Sort of the medical answer to
13   that question is:  it's -- it's -- you know,
14   people get colonized, and I'm not sure what
15   you mean by "extensively."  In other words,
16   if -- if -- if you're carrying the
17   meningococcal bacteria, you can stand in
18   line outside the hospital in Alliance, and
19   you can get Rifampin, and it will eliminate
20   it from your body before you show any signs
21   of infection.  So, you can prevent infection
22   in that case.  You know, you can treat
23   colonization, but we don't normally treat
24   colonization except in unique situations.
25   Q    Is it your testimony here, Doctor,
0083
 1   that, once there's any manifestation of
 2   symptoms, that the die is cast?
 3             MR. SCHOBERT:   Objection.
 4             MR. KADLEC:    Objection
 5             MR. JEFFERS:    Objection.
 6   BY MR. JACOBSON:
 7   Q    Without surgical --
 8   A    Any manifestation of symptoms?
 9   Q    Yes.
10   A    Without surgery, I think the outcome is
11   pretty much cast, yeah.  I mean, the -- you
12   know, whatever -- 80 percent, 90 percent.
13   This is a surgical disease.
14   Q    Okay.
15   A    And, you know, that's -- that's the
16   first thing you're taught with toxic shock
17   is you remove the source of infection.
18   Q    All right.  I'm going to move on, but I
19   -- I just want to make sure I understand it.
20   In the -- in the 20 percent of people that
21   -- that survive this, the onset of treatment
22   in your opinion is not a variable, was not a
23   variable, does not affect outcome, correct?
24   A    I'm not aware of literature that
25   suggests that anything other than early
0084
 1   surgical intervention and just the good
 2   grace of God, you know, the specific
 3   patient, makes a difference.
 4   Q    The autopsy, Doctor, indicates that
 5   this patient died as a result of septic
 6   shock.  Do you disagree with that?
 7   A    You know, I think the clinical
 8   diagnosis is it was TSS, and, so, inasmuch
 9   as, you know, she was septic and had
10   positive blood cultures, you can say -- you
11   know, it's sort of like the foundation, but
12   I say there's more than that.  So, I do
13   disagree with -- with the autopsy
14   conclusion, and I think, again, if you are
15   familiar with toxic shock, and you look at
16   this case, it's compelling that that's what
17   it was.
18   Q    Doctor, are there situations where a
19   patient is weakened and does not have the
20   degree of antibody production as would help
21   the patient?
22   A    Of course.
23   Q    What situations would cause a patient
24   to -- to not have antibody production?
25   A    Patients on immunosuppressives,
0085
 1   patients who have had their spleen taken
 2   out.
 3   Q    Okay.  What about patients, Doctor, who
 4   have had a recent surgery, inflammatory
 5   process, that type of thing?
 6   A    Yeah.  Well --
 7   Q    Would that affect antibody production?
 8   A    In a case like this, you basically have
 9   antibodies present before the onset of
10   infection.  It takes about a couple of weeks
11   to respond to, you know, a new antigen, to
12   make a new antibody.  So, in general,
13   patients who are weakened from surgery, you
14   might be able to quantify that they make
15   less antibody, but in toxic shock syndrome,
16   it's -- you have the antibody before.
17   Q    Doctor, is there a correlation in the
18   literature, in terms of increased survival
19   rate in puerperal women, the higher survival
20   rate for those who have contracted this
21   illness who have had a vaginal delivery as
22   opposed to those who have contracted it with
23   Cesarean delivery?
24   A    That's something that I've seen the
25   other experts weigh in on, and I think, in
0086
 1   general, patients who have C-sections do
 2   worse, but I'm not -- again, it's not -- I'm
 3   not -- you know, I'd have to look at the
 4   other expert reports.  I believe someone
 5   addressed that.
 6   Q    Why is that, Doctor?  Why would a
 7   patient who had a C-section do worse with
 8   the -- with the same bug, the TSS?  Why is
 9   that?
10   A    I think the -- the act of opening the
11   uterus, you know, creates devitalized tissue
12   that might lend itself more to being invaded
13   by the bug early on in the infection.  I
14   don't think that the fact that one had a
15   more major surgery than delivering a baby,
16   although I've got two kids and was present
17   for delivery, and they were delivered
18   naturally, and it was pretty -- you know, it
19   wasn't an easy thing, but I don't think that
20   that's -- I think the key factor is the
21   status of the uterus, and the fact that
22   there was surgical intervention of the
23   uterus.
24   Q    Doctor, the 80 percent survival or
25   mortality statistic that you gave, is it
0087
 1   your opinion that that statistic would
 2   mirror the survival, or the, pardon me, the
 3   mortality rate of women in the puerperal
 4   period who contract TSS?
 5   A    Again, I'm not sure what you mean by
 6   the question.  I think patients with
 7   fulminant -- postpartum patients with
 8   fulminant TSS have a mortality of 80
 9   percent.
10   Q    Okay, all right, and within that 80
11   percent, Doctor, one variable that -- that
12   may tend to affect outcome is whether those
13   women tend to be post C-section or not,
14   correct?
15   A    I think it may be a subtle variable.
16   Q    Okay.
17   A    Whether it's -- you know, it's not --
18   it doesn't have a huge impact.
19   Q    All right.  You used the term, subtle
20   variable, Doctor.  Would -- would the
21   patient's overall health status, would that
22   be what you would term a subtle variable?
23   A    Well, I think, you know, I should use
24   maybe a more medical term than "subtle."
25   I'm sorry.  You might look at relative risk
0088
 1   which is a medical term you can quantify,
 2   and I think there might be a slight
 3   increased relative risk, but it's not that
 4   clinically significant.  It's not sort of,
 5   you know, one's down here, and one's up
 6   here.
 7   Q    All right.  So, the patient's health
 8   status, whether they're -- whether they're
 9   post C-section, those are minor variables --
10             MR. SCHOBERT:   Objection.
11   BY MR. JACOBSON:
12   Q    -- that affect outcome; is that fair?
13   A    The relative -- the relative risk due
14   to those variables is small.
15   Q    But it does exist in the literature,
16   correct?
17             MR. SCHOBERT:   Objection.
18             THE WITNESS:   You know, I believe
19   it does.  I believe we saw other experts
20   talking about that.
21   BY MR. JACOBSON:
22   Q    Pardon me, all right.  Now, what about,
23   Doctor, the -- the availability of support,
24   hospital support, fluids, antibiotics,
25   support systems; in other words, would the
0089
 1   patient's access to a -- a hospital be a
 2   variable as well?  Would somebody who
 3   contracted this infection in downtown
 4   Cleveland have a better chance than somebody
 5   who contracted it out in the middle of Idaho?
 6             MR. SCHOBERT:   Objection.
 7             THE WITNESS:   Well, I think the
 8   -- Idaho has some fine hospitals, but --
 9   BY MR. JACOBSON:
10   Q    I'm saying the middle of Idaho.  I
11   don't want to insult anybody from Idaho
12   here.
13   A    I think the fact that, you know,
14   roughly 20 percent survive is due to
15   extraordinary care in most cases, and it's
16   usually related to aggressive intervention,
17   fluids, you know, pressors, ventilator
18   management, you know.
19   Q    So, that indeed would be a variable?
20   A    Sure.
21   Q    One's access to good health care,
22   correct?
23   A    Well, you gave me a scenario of someone
24   who's not at all in a hospital versus
25   someone who's in, I guess, you know, a
0090
 1   tertiary hospital.
 2   Q    Well, let's start there, okay, somebody
 3   who has no access to a hospital or doesn't
 4   have immediate access to a hospital, is two
 5   hours away.
 6   A    Sure, of course.
 7   Q    Okay.  That's a variable, okay?
 8   A    Sure.
 9   Q    Now, let's take that one step further,
10   okay, as opposed to -- a modern hospital in
11   an urban setting as opposed to a --
12   something less than a modern hospital in a
13   rural setting, that would be a variable that
14   would indeed affect the outcome as well,
15   correct, Doctor?
16             MR. SCHOBERT:   Objection.
17             MR. KADLEC:    Objection.
18             MR. JEFFERS:   Objection.
19             THE WITNESS:   Again, there might
20   be a -- there might be a slight relative
21   risk, but, again, one of the things that's
22   so devastating about this illness is,
23   there's a high mortality despite optimal
24   tertiary care.  I mean, the -- I always like
25   to cite the example of the Jim Henson, the
0091
 1   guy who did the Muppets.  He was in one of
 2   the finest hospitals in New York City, and
 3   he died of toxic strep syndrome in about 18
 4   hours, and I think that's something that's
 5   unique about toxic strep syndrome, that
 6   despite, you know, the most advanced
 7   Intensive Care Unit in the world, patients
 8   still die.
 9   BY MR. JACOBSON:
10   Q    Do you know how long Jim Henson had
11   been outside of the hospital from the onset
12   of symptoms until the time he was admitted?
13   A    No, no.
14   Q    Doctor, let's talk about -- you were
15   talking about devitalized tissue, and the
16   eagle affect and the reasons why antibiotics
17   won't help.  The uterus, Doctor, in a woman
18   who has just given birth is a highly
19   vascularized organ; is it not?
20   A    Correct.
21   Q    There are many, many routes of blood
22   transport to the uterus, correct?
23   A    Yeah.  There's -- there's  -- it's --
24   relative to other organs, at the time of
25   delivery, it is.  You know, a lot of things
0092
 1   happen after delivery very rapidly to --
 2   physiologic things happen after delivery to
 3   keep the postpartum woman from
 4   exsanguinating, and, you know, how that
 5   plays into the situation, you know, I'm not
 6   sure, you know, so --
 7   Q    Are you saying some of those -- those
 8   routes shut themselves off, Doctor?
 9   A    Correct.
10   Q    All right.
11   A    It's a natural, physiologic response
12   post-delivery.
13   Q    What other --
14   A    Can I get this?
15   Q    Please.
16             (At this time a short recess was
17   had.)
18             THE VIDEOGRAPHER:   Back on the
19   record.
20   BY MR. JACOBSON:
21   Q    Doctor, a couple of points that Mr.
22   Gordon reminded me to ask you about.  This
23   patient did not have a rash.  She was never
24   noted to have a rash; is that correct?
25   A    Correct.
0093
 1   Q    Dr. Flora, your counterpart who we're
 2   deposing tomorrow, the other expert for Dr.
 3   Hsieh, would be more familiar with the
 4   clinical appearance of obstetrical and post-
 5   obstetrical patients than you, correct?
 6             MR. SCHOBERT:   Objection.
 7   BY MR. JACOBSON:
 8   Q    As a general rule.
 9             MR. SCHOBERT:   Objection.
10             THE WITNESS:   With infection or
11   without infection?
12   BY MR. JACOBSON:
13   Q    Either.
14   A    I mean, I think, you know, I get
15   consulted on postpartum patients with
16   serious infections, and it's a pretty big
17   hospital.  We see a lot of patients here, so
18   I don't know if he's seen more postpartum
19   patients with serious infections -- serious
20   infections than I have.  He's certainly seen
21   more postpartum patients than I have.
22   Q    Now, he -- once again talking about
23   toxic strep syndrome, he indicates that
24   decompensation within hours occurs rapidly,
25   and progressive body organ failure and a
0094
 1   rash occurs.  So, he seems to think that a
 2   rash occurs rather quickly.
 3   A    Again, I think you're interpreting what
 4   he wrote.  Obviously, you'll get a chance to
 5   ask him tomorrow.  I think he says
 6   decompensation occurs rapidly, and later a
 7   rash occurs.  You know, I think, you know --
 8             MR. SCHOBERT:   He'll have the
 9   chance to ask him, Doctor.
10   BY MR. JACOBSON:
11   Q    Doctor, in the 80 percent mortality
12   rate, I -- I think that one -- one factor
13   that you've mentioned is the -- is the
14   ability of the patient's immune system to
15   fight off this -- this bacteria, this toxin,
16   correct?
17             MR. SCHOBERT:   Objection.  Asked
18   and answered.
19             THE WITNESS:   If the patient has
20   antibodies --
21   BY MR. JACOBSON:
22   Q    Is that part of the immune system?
23   A    It's an all or none phenomenon.  If
24   someone has antibodies to the toxin, they
25   don't get this disease.  So, it's just the
0095
 1   way -- again, the way I think about fighting
 2   infection, et cetera.  It's sort of,
 3   patients who have antibodies to these toxins
 4   don't get this problem.  Patients who do
 5   have, you know -- or patients who have
 6   antibodies don't get the problem.
 7   Q    What tends to distinguish those who do
 8   and don't?
 9   A    It' just -- it's just a chance.  I
10   mean, people get trivial infections with
11   these, and -- and have an immune response,
12   and, so -- and if you took all the blood --
13   you know, took our blood in the room and
14   took the various staph and strep toxins, you
15   know, half of us would be -- have antibodies
16   to them, and half of them wouldn't,
17   probably.
18   Q    Doctor, Group A strep, is that thought
19   to be primarily a nosocomial infection?
20   A    No.
21   Q    Doctor, figuring into the 80 percent
22   would be a portion of patients who are
23   immunocompromised to begin with, correct?
24             MR. SCHOBERT:   Objection.
25   BY MR. JACOBSON:
0096
 1   Q    In other words, that would be a
 2   variable, Doctor, whether a patient is
 3   immunocompromised or not.
 4   A    Again --
 5             MR. SCHOBERT:   Asked and
 6   answered.  We're going over old ground
 7   again.
 8             MR. JACOBSON:  That one I didn't
 9   ask.
10             MR. SCHOBERT:  You can ask the
11   same question seven different ways, but it's
12   the same question.  You've asked about
13   immunocompromised.  Objection.  Go ahead.
14             THE WITNESS:   When we think about
15   invasive Group A strep infections, we
16   usually don't think about primarily
17   attacking people who are immunosuppressed.
18   Again, I think I said earlier, it's one of
19   the unique and frightening things about
20   toxic strep or invasive Group A strep,
21   necrotizing fascitis, the whole spectrum of
22   fulminant, aggressive Group A strep
23   infections, is that they occur in otherwise
24   healthy people and produce high morbidity
25   and mortality.
0097
 1             So, in the patients I've seen -- I
 2   mean, I saw one of our residents here last
 3   year who -- who had something like this, and
 4   the -- the vast -- you know, of the patients
 5   I've seen, I don't think any of them were
 6   immunosuppressed.  Now, is it possible that,
 7   if an immunosuppressed patient had this
 8   illness, they might have a worse outcome?
 9   You know, I don't know.  Again, the -- for
10   toxic shock and toxic strep syndrome, it's
11   the patient's immune system that -- that is
12   the arbiter or the pathway of the illness.
13   So, if there was any relative risk due to
14   being immunosuppressed, I think it would be
15   trivial.
16   Q    Doctor, I want to ask you, if you
17   would, to trace for me the -- the -- your
18   opinion of -- of the times when this patient
19   became infected, the time she became septic,
20   the time that the toxins were released.  Do
21   you have any opinion on that, Doctor?
22   A    I think you asked me several questions.
23   I'm not sure what you mean.
24             MR. SCHOBERT:   I object to the
25   multiple questions.
0098
 1   BY MR. JACOBSON:
 2   Q    Do you have an opinion as to when the
 3   patient became infected, when the bacteria
 4   began to colonize?
 5   A    I think --
 6             MR. SCHOBERT:   Objection.
 7             THE WITNESS:   -- the patient was
 8   colonized on admission to hospital, more
 9   likely than not.  That is, this Group A
10   strep was carried on her body.
11   BY MR. JACOBSON:
12   Q    Okay.
13   A    And I think some time after the onset
14   of labor, the bacteria, you know, made its
15   way into -- into the uterus, and -- and
16   colonized the uterus, and, you know, sort
17   of, you know, where -- it's sort of a gray
18   area.  Where do you go from colonization to
19   infection?  I think -- I think she
20   manifested signs of sort of sepsis, you
21   know, around three in the morning of the
22   26th when her blood pressure was low.  I
23   think that's sort of when I see the onset of
24   the sepsis syndrome.
25   Q    Was she hypotensive about three a.m.,
0099
 1   Doctor?
 2   A    Correct.
 3   Q    Now, we've already agreed, Doctor, that
 4   one variable in -- in -- which determines
 5   outcome or is somewhat determinative of
 6   outcome is one's access to a facility which
 7   can provide support.  Doctor, if, indeed,
 8   this patient had gotten pressors and
 9   medications, Dopamine, at three a.m., would
10   she have had a better prognosis?
11   A    No.
12   Q    Why is that?
13   A    I think that at three in the morning,
14   the only thing that could have saved this
15   patient would have been surgical removal of
16   the site of infection.
17   Q    But, yet, Doctor, those patients who do
18   get support and -- and things like pressors
19   and Dopamine -- well, strike that.  We've
20   already discussed that.
21             MR. SCHOBERT:   Yeah, you've got
22   that.
23             THE WITNESS:   I think you and I
24   need to do a literature review, and we'll
25   look -- we'll look at the patients, and I
0100
 1   think you'll probably see that the ones that
 2   had surgery are probably the ones that
 3   survived, but we can do that together.
 4   BY MR. JACOBSON:
 5   Q    It's rare, Doctor, that, as you've
 6   indicated, with an obstetrical patient, that
 7   surgery is done.
 8   A    Correct.
 9   Q    All right.  So, are you basically
10   saying that obstetrical patients who -- who
11   get toxic strep syndrome don't survive, or
12   their survival is zero?
13   A    It's -- it's pretty low.  Again, it's
14   such a -- it's such a big decision to remove
15   a woman's reproductive potential and -- and
16   by the time it becomes apparent that that's
17   the right step, it's too late.  It's just
18   sort of a paradox in a case like this.  The
19   key -- the key step is a hysterectomy, but
20   by the time you can see that this patient's
21   rapidly going downhill, it's too late.
22   That's, you know, the tragedy of cases like
23   this.
24   Q    Doctor, Group A strep is -- is very
25   sensitive to penicillin; is that correct?
0101
 1   A    Correct.
 2   Q    It will kill the bacteria, and that
 3   will stop the release of toxins, correct?
 4   A    Incorrect.
 5   Q    Well, the dead bacteria will not
 6   release toxins, correct?
 7             MR. SCHOBERT:   Objection.
 8             THE WITNESS:   Again we discussed
 9   this earlier.  That's -- if you read the
10   literature of invasive Group A strep
11   infections, you'll see that these patients
12   do poorly if all they get is antibiotics,
13   and it's sort of -- it's almost, you know, a
14   paradox that it's a very sensitive organism
15   to antibiotics.  So, if you have a strep
16   throat, and you take a little penicillin, it
17   goes away.  Once it's invading tissue and
18   devitalizing tissue, antibiotics can't get
19   there.  There's such a density of organisms,
20   they're no longer dividing.  They're not
21   susceptible to antibiotics.  So, clinically,
22   you know, the relevance -- you know, what's
23   more relevant is the way I described it, not
24   whether it can kill it or not.
25   Q    The live bacteria releases the
0102
 1   exotoxins, correct?
 2   A    Correct.
 3   Q    All right.  Doctor, the -- the uterus,
 4   we were discussing its vascularization, and
 5   -- but, indeed, there are other tissues of
 6   the body which are more poorly vascularized,
 7   and if a -- and if a Group A strep infection
 8   will colonize and grow in -- in those other
 9   tissues, it's going to be more difficult to
10   treat it than the uterus, correct?
11             MR. SCHOBERT:   Objection.  You
12   can answer.
13             THE WITNESS:   I'm not sure I
14   understand the question.
15   BY MR. JACOBSON:
16   Q    In spite of the fact, Doctor, that --
17   that the uterus has mechanisms to avoid
18   bleeding, it is still a highly vascularized
19   organ even after birth, correct?
20             MR. SCHOBERT:   Objection.
21             THE WITNESS:   Correct.
22   BY MR. JACOBSON:
23   Q    And, so, there are many paths by which
24   we can provide antibiotics to kill the
25   bacteria, correct?
0103
 1   A    Not into devitalized tissue.
 2   Q    And why is that?
 3   A    Because once the strep infection sets
 4   up in devitalized tissue, the antibiotics
 5   don't get there.  That's the whole -- that's
 6   the whole gist of invasive Group A strep
 7   infections.
 8   Q    Well, Doctor, if the vasculature is
 9   there, what happens to the devitalized
10   tissue to block the bacteria -- pardon me,
11   to block the antibiotics?
12   A    The Group A strep devascularizes the
13   tissue.
14   Q    How so?
15   A    By producing locally acting toxins
16   that, you know, cause clotting and -- and --
17   and cause enzymes that break down tissue.
18   Q    Now, would that be to the entirely --
19   entirety of the vasculature within a certain
20   specified area or part of it?
21   A    It's a localized phenomenon.
22   Q    And all of the vasculature in that area
23   will be killed by a Group A strep?
24   A    No, just the vasculature right around
25   where the infection is.
0104
 1   Q    In general, Doctor, the better
 2   vascularized an area is, the greater ability
 3   we have to bring antibiotics to it, correct?
 4   A    As a general statement, that's correct.
 5   Q    All right.  That's generally -- that's
 6   generally true with Group A strep as well,
 7   correct?
 8             MR. SCHOBERT:   Objection.
 9             THE WITNESS:   Group A strep,
10   invasive Group A strep, the delivery of
11   antibiotics by the blood is not relevant to
12   invasive Group A strep infections.  What's
13   -- what's relevant to invasive Group A strep
14   infections is surgical removal of the
15   infection.
16             MR. SCHOBERT:   For the 18th
17   time.
18             MR. JACOBSON:  Can you read back
19   the last question?
20             (At this time the question was
21   read back.)
22   BY MR. JACOBSON:
23   Q    Why do we bother to give antibiotics to
24   patients who get Group A strep, Doctor?
25   A    Well, it's an adjunct to surgical
0105
 1   removal of the site.
 2   Q    And it's beneficial as well, correct?
 3   A    It is.
 4   Q    All right.  Now, the eagle effect,
 5   Doctor, what is that?  You were explaining
 6   that to me.
 7   A    The eagle effect is an observation
 8   that, in aggressive Group A strep
 9   infections, you get such a high density of
10   organisms that they don't undergo cell wall
11   division, so the common antibiotics we use
12   to kill strep don't work because they act
13   only on bacteria whose cell wall is
14   dividing, but yet they continue to produce
15   toxin.
16   Q    Well, I mean, do they get bigger?  Do
17   they produce more toxin as opposed to
18   dividing?
19   A    They just don't divide anymore.
20   There's a density of organisms in these
21   aggressive Group A strep infections where
22   the -- you know, whatever the parameters
23   are, the bacteria quit undergoing cell wall
24   division, and -- but they remain
25   metabolically active, and the common
0106
 1   antibiotics we use, the penicillins that you
 2   mentioned don't work.
 3   Q    How do they work on cells -- how does
 4   the penicillin work on cells that are
 5   dividing?  Does it just stop the division?
 6   A    It inhibits cell wall synthesis, and
 7   the cells sort of fall apart.
 8   Q    But the inhibition of the cell wall
 9   synthesis is -- is facilitated by the -- the
10   active division?
11   A    Right.  Penicillin doesn't work unless
12   the cell is dividing.
13   Q    Now, Doctor, does the eagle effect
14   occur in all Group A strep infections?
15   A    No.
16   Q    All right.  Most of them?
17   A    I think it plays a small role in most
18   tissue infections of Group A strep.  Whether
19   it's a clinically significant role, it's not
20   clear.
21   Q    All right.  Doctor, you can't say
22   whether the eagle effect played a certain
23   role or even a probable role in this case;
24   can you?
25   A    Well, I think that, you know, in my
0107
 1   opinion, this patient had a fulminant,
 2   aggressive, invasive Group A strep
 3   infection, and I think it's more likely than
 4   not it did.
 5   Q    It did play a significant role?
 6   A    Yes.
 7   Q    Okay, and the basis of that, Doctor?
 8   A    Well, just looking at similar cases,
 9   knowing how Group A strep works, knowing the
10   outcome in this case and how aggressive the
11   infection was.
12   Q    Okay.  So, part of your opinion is
13   based on the outcome of this case, correct?
14   A    And the rapidity with which the patient
15   became ill, the fact that I hold to a high
16   degree of medical probability this was a
17   toxic strep producing case, and that's the
18   kind of situation where the eagle effect
19   plays a key role.
20   Q    Once again, Doctor, part of your
21   opinion is the outcome of this case, the
22   fact that the patient died.
23   A    Well, not that she died or not, but the
24   rapidity with which she became ill.
25   Q    And the severity to which she became
0108
 1   ill, correct?
 2   A    Correct, and the capillary leak, the
 3   low albumin, the multi-organ dysfunction.
 4   Q    So, your opinion, Doctor, that the
 5   eagle effect was significant here is -- is
 6   affected by the outcome?
 7   A    By the --
 8             MR. SCHOBERT:   Objection.
 9             THE WITNESS:   -- clinical
10   scenario, not -- not necessarily the mortal
11   outcome.  Can I go off the record for a
12   second?
13             MR. JACOBSON:       Sure.
14             (At this time a short recess was
15   had.)
16             THE VIDEOGRAPHER:   On the record.
17   BY MR. JACOBSON:
18   Q    Doctor, there were two blood cultures
19   that were done on this patient at Parma; is
20   that correct?
21   A    Correct.
22   Q    And the findings of each?
23   A    I knew at least one of them grew Group
24   A strep.  I'm not sure that both of them
25   did.  If they did, I'll take your word for
0109
 1   it.
 2   Q    Well, Doctor, are you aware -- first,
 3   the one group did, indeed, grow out a Group
 4   A strep.  Do you know what the second one
 5   did?
 6   A    I know that the blood cultures grew
 7   Group A strep.  Whether they both did or not
 8   didn't hold relevance to me, so it's not a
 9   fact that I retained.
10             MR. SCHOBERT:   Do you want him to
11   look?
12   BY MR. JACOBSON:
13   Q    Well, I'm just going to ask you to
14   assume, Doctor, that the second one --
15             MR. SCHOBERT:  All right.
16   BY MR. JACOBSON:
17   Q    -- to save time, did not grow out Group
18   A strep.
19   A    Okay, sure.
20             MR. SCHOBERT:   That's fair.
21             THE WITNESS:   Whatever, yeah.
22   BY MR. JACOBSON:
23   Q    What is the significance of that in
24   this context?
25   A    The fact that one did and one didn't?
0110
 1   Q    That the first one did, and the second
 2   one didn't.
 3   A    It doesn't mean much to me.
 4   Q    Okay.  Now, the first one, Doctor, let
 5   me ask you to assume that that was done
 6   before antibiotics, and the second one was
 7   done after antibiotics.  Does that, Doctor,
 8   tell us anything about how effective these
 9   antibiotics were?
10   A    I think I said earlier in this
11   deposition that, you know, killing the
12   bacteria in the blood is not the relevant
13   thing here with this syndrome.  It's
14   removing the site of infection.  So, the
15   fact that you take a blood culture, you put
16   it in a bottle, in that bottle is the
17   antibiotic along with the bacteria.  It's
18   not surprising that you suppress bacterial
19   growth.  The clinical relevance in this
20   syndrome I think is not high.
21   Q    But -- but, Doctor, with respect to the
22   specific question, the fact that there was
23   no growth of the second culture does tell us
24   at the very least that this bacteria was
25   susceptible to the antibiotics that it was
0111
 1   -- that were applied, correct?
 2             MR. SCHOBERT:   Objection.  Asked
 3   and answered.  Go ahead.
 4             THE WITNESS:   It does show that
 5   it's susceptible, which I don't think is a
 6   controversial issue.
 7   BY MR. JACOBSON:
 8   Q    Doctor, is there one seminal study on
 9   survival rates for patients with toxic strep
10   syndrome?
11   A    No.
12   Q    How about patients with -- postpartum
13   patients with toxic strep syndrome?
14   A    No.
15   Q    Doctor, are there epidemiological
16   factors that figure into the survival rates,
17   different geographical areas, things like
18   that?
19   A    The -- again, there may be some subtle
20   relative risks, and the key thing is the
21   things I described repeatedly:  the host,
22   the antibodies, the immunity against the
23   types of strep, the immunity against the
24   toxins.  That overrides everything else.
25   Q    Doctor, is there any individual that
0112
 1   you consider to be an expert or a leading
 2   expert on the subject of strep, toxic strep
 3   syndrome?
 4   A    There's people who research sort of the
 5   molecular biology who have -- I would defer
 6   to in that area.  Clinically, I don't think
 7   there's anybody recognized as the guru.
 8   Q    Okay, well, how about at the molecular
 9   level, Doctor; who are the gurus there?
10   A    There's a guy in Minnesota.  I think
11   his name is Schlebert(sic) - it's getting
12   late - who's published a lot, but there's a
13   couple of guys who've done a lot on the
14   mechanisms, not the clinical but the
15   mechanisms.
16   Q    Any other names you can give me, Doctor?
17   A    No.
18   Q    Is -- is Dr. Schlebert a reliable
19   authority in this area?
20             MR. SCHOBERT:  Objection.
21             THE WITNESS:   On the molecular
22   biology, yes.  Clinically, not that I'm
23   aware of.
24   BY MR. JACOBSON:
25   Q    Can you spell that for me?
0113
 1   A    I'll call your office tomorrow, if you
 2   want me to.  I could take a stab at it.
 3   Q    Please, can you give us a guess now,
 4   your best --
 5   A    No, I'll get it to you tomorrow.
 6             MR. SCHOBERT:   You can call me,
 7   leave it on my voice mail, and I'll give it
 8   to him.
 9   BY MR. JACOBSON:
10   Q    All right.  Let me move on, then.
11   Doctor, do you have any criticisms of any of
12   the care that was rendered to this patient
13   by anyone?
14             MR. JEFFERS:    Objection.  Go
15   ahead.
16             MR. KADLEC:    Objection.
17             THE WITNESS:   No.
18   BY MR. JACOBSON:
19   Q    Do you believe, Doctor, that -- that
20   there should have been a suspicion of
21   infection and antibiotics given earlier than
22   there was?
23   A    No.
24   Q    Dr. Hahn has indicated in his
25   deposition that the 11:30 labs were such
0114
 1   that a first-year medical student would
 2   react to them, if known.  Do you agree with
 3   that?
 4             MR. KADLEC:    Objection.
 5             THE WITNESS:   Definitely not a
 6   first-year student.
 7             MR. JEFFERS:    Pardon me?
 8             THE WITNESS:   Definitely not a
 9   first-year student.
10   BY MR. JACOBSON:
11   Q    What about a third-year student?
12   A    I think you interpret labs in the
13   context of the patient, and, you know,
14   beyond that, I'm not sure, you know, what --
15   what you want me to say.
16   Q    All right.  Well, Doctor, the labs, the
17   labs at 11:30, how would you characterize
18   the left shift, Doctor?
19   A    Well, the labs were drawn at 11:30.
20   Q    Okay.
21   A    They came back, you know, somewhat
22   later.  There was a left shift.
23   Q    Okay.  Mild, moderate, severe?
24   A    You know, I'm not sure there's
25   criteria.  It was a definite left shift,
0115
 1   you know.
 2   Q    The degree of bandemia, Doctor:  mild,
 3   moderate, severe?
 4   A    I wouldn't -- again, I'm not sure what
 5   those terms mean, but it was a significant
 6   bandemia.
 7   Q    Okay.  What about, Doctor, the level of
 8   metamyelocytes; do you know how many there
 9   are?
10   A    Well, if you want me to look, I will.
11   Q    Please.
12             MR. GORDON:    I think it's page
13   46, Doctor.
14             MR. JEFFERS:   Forty-two.
15             MR. GORDON:    Oh, I'm sorry, 42.
16             MR. SCHOBERT:   Tab 42, Doctor.
17   He's got it.  He's got it.  It's not set up
18   the way yours is.
19             MR. GORDON:    Okay.  Sorry for
20   the misinformation.
21             MR. JEFFERS:    Yes, you should
22   be.
23             THE WITNESS:   The metamyelocytes,
24   six percent.
25   BY MR. JACOBSON:
0116
 1   Q    What is normal, Doctor?
 2   A    Zero to one.
 3   Q    And what is the significance --
 4   significance of the metamyelocytes, Doctor?
 5   A    It's a sign of physiologic stress.
 6   Q    Consistent with infection?
 7   A    Often due to infection.
 8   Q    Is it highly suggestive of infection,
 9   Doctor?
10   A    It's -- again, I'm not sure I'd use the
11   term "highly."  It's suggestive of
12   infection.
13   Q    Okay.  At the time, Doctor, what's your
14   understanding of the patient's clinical
15   condition at the time these labs came back?
16   A    I'm not exactly sure when the labs came
17   back.  I think the -- the -- the CBC came
18   back, I think, around 12:30.  I'm not sure
19   when the differential came back -- came
20   back, so at the time the CBC came back, I
21   think she was restless and complaining of
22   fullness in her lower abdomen.
23   Q    Doctor, did she also have a reduced
24   urine output at the time?
25   A    I believe she did.
0117
 1   Q    Okay.  Did she also have a temperature
 2   elevation?
 3   A    She had a slight temperature elevation
 4   at that time.
 5   Q    Doctor, when you put the patient's
 6   clinical picture together with these labs,
 7   is it suggestive of infection?
 8   A    It is.
 9   Q    All right.  Is there a reasonable
10   suspicion of infection at that point?
11   A    I -- I think there's -- there's a
12   suspicion for infection, sure.
13   Q    So, indeed, Doctor, it would be prudent
14   to give this patient antibiotics at this
15   point, correct?
16   A    Well, I think that's the decision made
17   by the person seeing the patient or familiar
18   with the patient.  It's a clinical decision,
19   and based on the index of suspicion, I
20   certainly, you know, think that a lot of
21   people would give that patient antibiotics.
22   Q    You certainly would; would you not,
23   Doctor?
24   A    I think at that point, I would have.
25             MR. JEFFERS:   Object.
0118
 1   BY MR. JACOBSON:
 2   Q    Why?  That's a good question.
 3   A    I think as infectious disease doctors,
 4   we -- you know, we have a lower threshold
 5   than, say, surgeons for using antibiotics,
 6   but, you know, I -- I think -- I would hope
 7   that the patient, if there was an infection,
 8   there's one that's treatable with
 9   antibiotics, although we know that's not the
10   case in my opinion.
11   Q    Doctor, can we not agree that the
12   reasonable physician of any strain, be it an
13   obstetrician, infectious disease, a
14   reasonable physician would give antibiotics
15   at this point?
16   A    You know, again --
17             MR. KADLEC:    Objection.
18             MR. SCHOBERT:  Objection.
19             THE WITNESS:   Again, I think
20   it's a matter of clinical judgment, seeing
21   the patient in a situation.  So, I think --
22   do I think most physicians -- I think most
23   physicians would have given antibiotics, you
24   know, later in the night when the blood
25   pressure was low, given -- if they knew
0119
 1   about the left shift and if they knew about
 2   the situation.  I'm not sure, you know, in a
 3   postpartum patient, you know, without the
 4   hypotension, and again at midnight, you
 5   know, it kind of appeared that the fever was
 6   coming down, and the blood pressure was
 7   stable, and, so, I think some physicians
 8   might have thought that the left shift was
 9   due to stress of delivery, and the white
10   count had come down, and the patient was
11   getting better.
12   Q    Well, certainly, Doctor, one might
13   speculate that there's not an infection, but
14   there's a reasonable suspicion of infection,
15   correct?
16             MR. SCHOBERT:   Objection.
17             MR. KADLEC:    Objection.
18             MR. JEFFERS:    Objection.
19             THE WITNESS:   Again, I think  --
20   I wouldn't -- I wouldn't criticize someone
21   for suspecting infection.  I don't think it
22   would be -- it would be a violation of the
23   standard of care not to give antibiotics.
24   BY MR. JACOBSON:
25   Q    Doctor, what is your threshold?  When
0120
 1   do you feel it's appropriate to give
 2   antibiotics?  Would that -- would it --
 3   would that be when you feel there's a
 4   reasonable suspicion of infection?
 5             MR. KADLEC:    Objection.
 6             THE WITNESS:   Are we talking
 7   about me personally, or do I think another
 8   physician --
 9   BY MR. JACOBSON:
10   Q    Let's talk about you personally.
11             MR. JEFFERS:   Objection.
12             THE WITNESS:   I think, you know,
13   when you think there's -- you know, when you
14   have a suspicion for an infection, you give
15   antibiotics, but I know Dr. -- you know, Dr.
16   Crane said in his expert report that, based
17   upon just some -- some chills in a
18   pre-eclamptic patient a few hours after
19   delivery, that he would give antibiotics on
20   that basis, and I think -- you know, I
21   clearly think that's uncalled for.  So,
22   there's a spectrum here of opinion,
23   obviously.
24   BY MR. JACOBSON:
25   Q    Doctor, would you teach your students
0121
 1   -- and you're indeed a teacher; is that
 2   correct?
 3   A    Sure.
 4   Q    -- that when these labs come back in
 5   conjunction with the clinical condition of
 6   this patient, that they should give
 7   antibiotics?
 8   A    I think they should -- they would
 9   consider it.  Again, I think knowing the
10   patient and -- and having the -- you know,
11   being clinically involved is the final
12   arbiter, but definitely they would consider
13   it.
14   Q    Well, Doctor, would you instruct your
15   patients that you would recommend that
16   antibiotics be given at that time?
17             MR. SCHOBERT:   Students.
18   BY MR. JACOBSON:
19   Q    Pardon me, your students.
20             MR. SCHOBERT:  Objection.
21             MR. JEFFERS:   Objection.
22             THE WITNESS:   I think in the
23   majority of cases, yes.
24   BY MR. JACOBSON:
25   Q    Doctor, she also had a pulse rate of
0122
 1   128 at around midnight or 12:30.  Is that
 2   significant?
 3   A    I don't think in a postpartum patient
 4   that one piece of data would push me either
 5   way.
 6   Q    All right.  Doctor, do you have a
 7   working definition of puerperal infection?
 8   We -- you've probably read a lot about
 9   discussions in the depositions.  Do you have
10   one in particular?
11   A    Post-op infection, post-delivery
12   infection of the --
13   Q    I'm talking about -- I'm talking about
14   -- no, I'm not talking about puerperal.  I'm
15   talking about fever.  What is it --
16   A    Oh, the whole -- the whole fever.
17   Q    Yeah, is that something that you --
18   A    Fever, morbidity.  There was -- there
19   was a lot of interesting discussion on that
20   and detailed questioning.
21   Q    Is the precise definition, Doctor,
22   something that's important to you?
23   A    No.
24   Q    Okay.
25   A    I think -- I think it's whatever the
0123
 1   number is you interpret in the context of
 2   the patient.
 3   Q    All right, and, Doctor, we know that
 4   around 7:30 p.m. this patient had a -- had a
 5   temperature of 101.6, and thereafter she had
 6   100.4, correct?
 7   A    Correct.
 8   Q    All right, and, Doctor, can you -- can
 9   you and I agree that -- without getting into
10   definitions that an elevated temperature of
11   that degree should raise one's index of
12   suspicion for infection?
13   A    You know, I think it's something that
14   you would put in your differential
15   diagnosis, and that's all I'd say.
16   Q    Well, you might have infection in the
17   differential diagnosis for a variety of
18   reasons, Doctor, but are you familiar -- are
19   you familiar with the term, index of
20   suspicion?
21   A    Yes.
22   Q    All right, and can we agree that
23   temperatures of that degree would raise your
24   index of suspicion for infection?
25             MR. KADLEC:    Objection.  Asked
0124
 1   and answered.
 2             THE WITNESS:   Yeah, raise it
 3   from what to what, but it would raise it,
 4   sure.
 5   BY MR. JACOBSON:
 6   Q    Okay, and that would be one factor that
 7   you would consider along with other factors
 8   in determining whether or not the patient
 9   had an infection, correct?
10   A    Correct.
11   Q    All right.  Doctor, when the second
12   temperature -- pardon me.
13             MR. JEFFERS:   When you say 7:30,
14   you're talking about 1930?
15             THE WITNESS:   P.M., sure.
16   BY MR. JACOBSON:
17   Q    John and I have a running dispute on
18   that because I can't get those things right,
19   the chronology.
20             THE VIDEOGRAPHER:   Off the
21   record.
22             (At this time a short recess was
23   had.)
24             THE VIDEOGRAPHER:   On the record.
25   BY MR. JACOBSON:
0125
 1   Q    Doctor, in your report, you indicate
 2   that at 1925 she developed a fever of 101.
 3   It's actually 101.6, correct?
 4   A    Correct.
 5   Q    But, in fact, you're not concerned with
 6   that because the bottom line is, that's
 7   enough of a -- of a fever -- enough of a
 8   temperature elevation to raise your index of
 9   suspicion, correct?
10             MR. SCHOBERT:   Objection.
11   BY MR. JACOBSON:
12   Q    Either -- either one.
13             MR. SCHOBERT:   Objection.
14             THE WITNESS:   You know, whether
15   -- you know, if there was no fever, you're
16   less likely to think:  oh, there could be an
17   infection, but in a post-op patient like
18   this, it's -- a fever like that is common.
19   So, again, you know, is it something you
20   would consider or maybe think about?  I know
21   that Dr. Shagawat, I think, saw the patient
22   after that fever.  She was the doctor.  She
23   did the delivery.  I don't think that fever
24   raised her index of suspicion to the point
25   where she did something about it.
0126
 1   BY MR. JACOBSON:
 2   Q    I don't really -- I don't believe
 3   you're correct on that, Doctor.
 4   A    Oh, she saw her earlier than the fever?
 5   Q    I believe so.
 6   A    You may be right.  I -- I may have
 7   misspoke.  She saw her after the shivering
 8   episode.  That's correct.  Sorry.
 9   Q    All right, Doctor, let me just take you
10   back to -- to the earliest point that you
11   would have given antibiotics, okay, and we
12   know that this is a patient that at 11 a.m.,
13   about an hour and a half after delivery, had
14   a white blood count of 17.3, and -- and a
15   left shift, correct?
16             MR. SCHOBERT:   Doctor, again, you
17   have the right to look at the records.  This
18   is not a memory test.
19             THE WITNESS:   There was a slight
20   left shift at that point.
21             MR. JACOBSON:  Okay.
22             MR. JEFFERS:   What time is this
23   now?
24             MR. SCHOBERT:   11 a.m.
25             MR. JEFFERS:   Oh, okay.
0127
 1   BY MR. JACOBSON:
 2   Q    We know that -- that at 3:50 p.m. or
 3   1550, she was reported to be shaking and
 4   shivering and not feeling well, correct?
 5   A    Correct.
 6   Q    All right.  Nonspecific, but can be
 7   signs of infection, fair enough?
 8   A    It could be.
 9   Q    Okay.  You know at 5:00 p.m. she had a
10   white blood count of 16,100.  How would you
11   characterize the left shift at that point,
12   Doctor?
13   A    So, again, I don't like to use the
14   terms:  mild, moderate, severe.  I'd say
15   it's still a slight left shift.
16   Q    How about the degree of bandemia,
17   Doctor?
18   A    It's 13 percent.
19   Q    Which is mild, moderate, severe?
20   A    I wouldn't characterize it in any of
21   those terms.  I mean, it's there.
22   Q    And, then, Doctor, at 5:30 p.m., she
23   reports having blurry vision.  She's tired
24   and groggy, correct?
25   A    Correct.
0128
 1   Q    And, then, at 7:25 p.m. she has a temp
 2   -- temperature elevation of -- to 101.6,
 3   correct?
 4   A    Correct.
 5   Q    Now, at this point, Doctor, would it be
 6   prudent to give this patient antibiotics?
 7             MR. SCHOBERT:   Objection.
 8             MR. KADLEC:    Object.
 9             MR. JEFFERS:   Object.
10             THE WITNESS:   I don't think so.
11   BY MR. JACOBSON:
12   Q    And why is that?
13   A    Again, it's a clinical decision.  It's
14   -- it's a preeclamptic postpartum patient
15   who's having fever, you know, postpartum,
16   you know.  Having an elevated white count is
17   -- both white count and fever are relatively
18   common postpartum.
19   Q    Would you give antibiotics if this were
20   your patient at this point, Doctor?
21   A    I don't think so.
22   Q    Okay.  When is the earliest that you
23   would?
24             MR. SCHOBERT:   Objection.
25             THE WITNESS:   I think around, you
0129
 1   know, one or two in the morning when the
 2   blood pressure dropped.
 3   BY MR. JACOBSON:
 4   Q    Well, Doctor, I think -- I think you've
 5   already told me that, when the labs came
 6   back, you would give antibiotics at that
 7   point before the blood pressure was
 8   dropping, correct?
 9             MR. SCHOBERT:   Objection.
10   BY MR. JACOBSON:
11   Q    Didn't we already establish that?
12   A    I think you asked me when I thought the
13   sepsis was, but, you know, when I -- when --
14   I think the left shift came back around 1:00
15   A.M.
16   Q    Well, when the 11:30 labs came back,
17   Doctor, that's when you would give
18   antibiotics, correct?
19   A    When the left shift came back around
20   1:00 A.M.
21   Q    When the 11:30 labs were reported,
22   that's the time that you would give
23   antibiotics, correct?
24   A    I -- I probably would have.
25   Q    All right.  Doctor, are you aware of
0130
 1   what the SGOT and SGPT levels were at that
 2   point?
 3             MR. SCHOBERT:   From the 11:30
 4   draws; is that what you're asking him?
 5             MR. JACOBSON:   Yeah, yeah.
 6             THE WITNESS:   It appeared that
 7   they were -- yeah, they were slightly
 8   elevated.
 9   BY MR. JACOBSON:
10   Q    Okay.  What's the significance of that,
11   Doctor?
12   A    In a pre-eclamptic postpartum patient,
13   I don't know.
14   Q    Can it be a sign of infection, Doctor?
15   A    You know, in this context?
16   Q    Yeah.
17   A    I think -- I don't think a physician
18   would put it together with infection, no.
19   Q    Now, Doctor, certainly -- well, let me
20   just ask you to expand on that.  Why is
21   that, Doctor?
22   A    I just -- it just doesn't have that
23   much -- you know, slight elevated levels
24   like that just don't have that much clinical
25   significance.  It's not a variable that
0131
 1   would be high on my radar screen.
 2   Q    Now, certainly, Doctor, you would
 3   expect this patient to be entitled to the
 4   same degree of care at Parma in the
 5   obstetrical unit as she would here, correct?
 6   A    Of course.
 7   Q    And, yet, Doctor, in spite of the fact
 8   that -- that you would give antibiotics when
 9   these labs came back, you're not critical of
10   -- of these physicians for not rendering
11   them.  Now, would -- would the reason for
12   that be, Doctor, that you're willing to give
13   these physicians the benefit of the doubt?
14   A    Well --
15             MR. KADLEC:    Objection.
16             MR. JEFFERS:   Objection.
17             MR. SCHOBERT:   Objection,
18   argumentative.
19             THE WITNESS:   I think these
20   physicians were more familiar with the
21   patient.  They were more familiar with, you
22   know, postpartum patients.
23   BY MR. JACOBSON:
24   Q    So, you're deferring to their judgment?
25   A    I think clinical bedside judgment
0132
 1   always plays a role in clinical decisions,
 2   and anybody who says otherwise is not a
 3   clinician.
 4   Q    Now, Dr. Hahn's judgment wasn't bedside
 5   judgment; was he -- was it?
 6   A    You -- you mean in his deposition?
 7   Q    No.  He wasn't at the bedside.
 8             MR. KADLEC:    Objection.
 9             THE WITNESS:   Correct, he was at
10   home.
11   BY MR. JACOBSON:
12   Q    Okay.  What more did he know about the
13   patient than -- than you know from reviewing
14   these records?
15   A    At?
16   Q    At the time that the labs were reported
17   to him.
18   A    Well, I -- my understanding from
19   reading Dr. Hahn's deposition is that the
20   left shift was not reported to him.
21   Q    Should it have been?
22             MR. JEFFERS:   Object.
23             THE WITNESS:   You know, I don't
24   -- I don't -- in my interaction with nurses,
25   and two sisters-in-law, they're nurses here,
0133
 1   and not that that makes a difference, but I
 2   just don't think that that's something that
 3   nurses understand or report, you know,
 4   routinely or necessarily.
 5             MR. SCHOBERT:   Do you have a
 6   call?
 7             THE WITNESS:   Yes.  Can I -- off
 8   the record.
 9             (At this time a short recess was
10   had.)
11   BY MR. JACOBSON:
12   Q    Doctor, the 11:30 labs --
13             THE VIDEOGRAPHER:   On the record.
14   BY MR. JACOBSON:
15   Q    Is there a significance, Doctor, to the
16   -- the drop in the white blood count from
17   16,100 at five p.m. to 4600 at 11:30 p.m.?
18   A    I think in retrospect we can say that
19   there is because we know that the white
20   count continued to drop.  I think, if you
21   just looked at the white count in a
22   postpartum patient who in the first few
23   hours after she delivered had a high white
24   count, and her fever is down, and the white
25   count is down, you might interpret that as a
0134
 1   reassuring sign.
 2   Q    What about the 11:30 labs, Doctor, in
 3   conjunction, of course, with the clinical
 4   condition would cause you to give
 5   antibiotics?
 6   A    I think the left -- the left shift.
 7   Q    All right.  Now, Doctor, getting back
 8   to the question of -- of the nurse, should
 9   the nurse -- strike that.
10             Doctor, it is imperative that
11   these labs of 11:30 -- strike that.
12             These are abnormal labs, correct?
13   A    Correct.
14   Q    All right.  They are suspicious for
15   infection, correct?
16   A    The left shift.
17   Q    Is that correct?
18   A    Correct.
19   Q    All right.
20             MR. SCHOBERT:   Asked and
21   answered.
22   BY MR. JACOBSON:
23   Q    One way or another, the standard of
24   care requires that that information get to a
25   physician, correct?
0135
 1   A    You know --
 2             MR. JEFFERS:    Objection.
 3             THE WITNESS:   -- I've been here
 4   16 years.
 5   BY MR. JACOBSON:
 6   Q    Uh-huh.
 7   A    I practice inpatient medicine,
 8   outpatient medicine.  The lab calls you for
 9   abnormal tests themself.  I've never, ever
10   been called in 16 years about the
11   differential on a CBC.  I just don't think
12   it's -- it's something that, you know,
13   physicians interpret in the setting of the
14   patient, but it's not like a low potassium
15   or a low blood count or something where
16   physicians get called about it.
17   Q    When the nurse talked to the physician,
18   should that information have been
19   transmitted to the physician?
20             MR. SCHOBERT:   Objection.
21             MR. JEFFERS:   Objection.
22   BY MR. JACOBSON:
23   Q    Either by him asking or her telling?
24   A    You know, I -- I just don't think it's
25   something that nurses understand or -- or
0136
 1   routinely do or talk about or -- you know,
 2   and, so, it doesn't surprise me that it
 3   wasn't.
 4   Q    Okay.
 5   A    According to Dr. Hahn.
 6   Q    So, I just want to make sure I
 7   understand here, Doctor.  You're content and
 8   you have no criticism of the fact that
 9   potentially Dr. Hahn left that call with no
10   understanding of these labs?
11             MR. KADLEC:    Objection.
12   BY MR. JACOBSON:
13   Q    Correct?
14   A    Well, again, I -- you know, in the --
15   in the -- in the 16 years I've been here,
16   I've never had a nurse call me and tell me
17   what a differential showed.  So, if Dr. Hahn
18   gets a call saying:  well, the fever's down;
19   the white count's down, I -- I -- the nurse
20   says:  I called in the house doctor to do an
21   -- an exam, you know, for bleeding or
22   something, you know, it's -- I think it
23   speaks for itself.
24   Q    Okay.  So -- so -- so, in other words,
25   Doctor, if this information did not make its
0137
 1   way to Dr. Hahn, you have no criticism of
 2   that with -- with respect to anybody
 3   involved?  That's adequate care?
 4   A    Well, I'm telling you in the
 5   retrospectroscope, looking back at this
 6   case, knowing what happened, you know, it's
 7   easy to pick on that, but I'm just telling
 8   you what I see happen in practice, in
 9   reality is that -- is that the differential
10   isn't something that people latch onto and
11   call a doctor about.  I'm just telling you
12   my reflection of clinical practice in
13   Cleveland, Ohio.  I'm not -- you know, I'm
14   not looking back at the case and saying:
15   geez, this patient, you know, had an
16   infection and had a left shift.  I just --
17   anyway.
18   Q    Doctor, with all due respect, if your
19   answer is what -- what -- what I think it is
20   based on what you're telling me, we'll move
21   on, but I need a direct answer, okay?
22             MR. SCHOBERT:   Objection.
23             MR. JEFFERS:   He gave you a
24   direct answer.
25             MR. KADLEC:    Objection.
0138
 1   BY MR. JACOBSON:
 2   Q    Once again -- once again, Doctor, the
 3   question is:  if, indeed, this lab
 4   information -- strike that.
 5             You don't feel that it's necessary
 6   for -- for a nurse to call the doctor with
 7   the labs just for that purpose, correct?
 8   A    Again, just reflecting what I've seen
 9   --
10   Q    Yes.
11   A    -- in Cleveland, Ohio, I've never seen
12   a nurse call a doctor over a left shift.
13   Q    Okay.  Now, Dr. Hsieh told the nurse to
14   call Dr. Hahn; is that correct?
15   A    Correct.
16   Q    All right.  Now, once that happened,
17   okay, should this information have found its
18   way to Dr. Hahn by virtue of him asking or
19   -- or her giving it, that information to her?
20             MR. SCHOBERT:  Objection.
21             MR. KADLEC:    Objection.
22             MR. JEFFERS:    Objection.
23             THE WITNESS:   I think I answered
24   that.
25   BY MR. JACOBSON:
0139
 1   Q    Okay, so -- so the fact that it may not
 2   have, Doctor, you have no criticism.  You
 3   believe that that is adequate care; is that
 4   correct?
 5   A    You know, I think it's easy looking
 6   back to say:  Geez, you know, this
 7   information -- but I'm just saying what I
 8   see -- what I see happen in -- it's easy to
 9   criticize that knowing what happened to the
10   patient, but what I see transpire in patient
11   care, which is what I think this proceeding
12   is about, I -- I wouldn't criticize it.
13   Q    All right.  So, you think that's
14   adequate care that Dr. Hahn potentially --
15             MR. JEFFERS:   Objection.
16             THE WITNESS:   I'm just -- I'm
17   telling you it's what happens.  Whether it's
18   good or bad, it's -- it's reality.
19   BY MR. JACOBSON:
20   Q    Is it important information?
21   A    You know, I -- I don't think it's the
22   kind of information that -- that a nurse
23   would understand.
24   Q    Do obstetrical nurses know what a left
25   shift is?
0140
 1   A    I don't think they do.  Some might, but
 2   I don't think it's the -- it's their
 3   judgment to interpret the information.
 4   Q    Did this nurse know what a left shift
 5   was?
 6   A    I don't recall.
 7   Q    All right.  I'd ask you to assume that
 8   she did know what a left shift was, okay?
 9   Did she have the duty under that
10   circumstance to transmit this information to
11   Dr. Hahn, assuming he didn't ask?
12             MR. JEFFERS:    Objection.
13             MR. KADLEC:    Objection.
14             THE WITNESS:   If the nurse
15   understood the clinical significance and the
16   information was available at the time she
17   called him?
18   BY MR. JACOBSON:
19   Q    Yes.
20   A    And she had the knowledge and clinical
21   judgment to -- to interpret that lab test,
22   which I think unlikely since she didn't go
23   to medical school, but if she had the
24   knowledge that a doctor has who went to
25   medical school, then she should transmit the
0141
 1   information.
 2   Q    Well, let me read you precisely what
 3   she did know, Doctor.  I'll get to that.
 4             MR. JACOBSON:  Harley, would you
 5   find where she said what a left shift was?
 6   Q    Doctor, getting back to your last
 7   answer, this nurse was not a doctor.
 8   A    Correct.
 9   Q    All right.  She indicated that she knew
10   what a left shift was.
11             MR. SCHOBERT:   Pardon me?
12   BY MR. JACOBSON:
13   Q    She indicated that she knew what a left
14   shift was.
15             MR. JEFFERS:   Where are you
16   reading that?
17             MR. SCHOBERT:   Ask him to either
18   assume it, or read it, but either way you're
19   asking him to make a judgment as to what she
20   knew.  Just either ask him to assume or --
21   BY MR. JACOBSON:
22   Q    If she knew, assuming that she knew the
23   connection or the potential connection
24   between a left shift and infection, if
25   indeed Dr. Hahn did not ask about the labs,
0142
 1   did she have the duty to convey to him that
 2   information?
 3             MR. SCHOBERT:   Objection.  Go
 4   ahead.
 5             THE WITNESS:   If she had the same
 6   sophisticated understanding of this lab test
 7   that a fully trained physician had, then she
 8   should have transmitted the information.
 9   BY MR. JACOBSON:
10   Q    And, Doctor, if she had the
11   understanding, for example, that I have,
12   okay, which is very basic, okay, that
13   there's a connection between left shift --
14   A    I would dispute that.
15   Q    Okay.  All right, thank you, but if
16   she, Doctor, had an understanding that
17   there's a connection between left shift and
18   infection, okay, but not the sophisticated
19   understanding that a physician did, then did
20   the standard of care require her to
21   communicate the fact to Dr. Hahn that there
22   was a left shift?
23             MR. SCHOBERT:   Objection.
24             MR. JEFFERS:   Objection.
25             MR. SCHOBERT:   Asked and
0143
 1   answered.  It's just coming at it a
 2   different way.
 3             MR. JEFFERS:   Just a couple of
 4   additives, and it's argumentative.
 5   BY MR. JACOBSON:
 6   Q    Go ahead.
 7   A    Because I think you added -- you added
 8   something in there, standard of care.  I
 9   think, regarding the standard of care, I'd
10   defer to a nurse.
11   Q    All right.  Fair enough.
12   A    May I?
13   Q    Yes.
14             (At this time a short recess was
15   had.)
16             THE WITNESS:   Can I clarify my
17   last answer?
18   BY MR. JACOBSON:
19   Q    Please.
20   A    Based upon my observation of the
21   practice of nurses, and my understanding of
22   nurses' training, and my understanding that
23   I don't think a nurse would understand the
24   full significance of a left shift, I don't
25   think it would be a violation of the
0144
 1   standard of care unless a nurse truly had
 2   the sort of sophisticated understanding that
 3   a physician has.
 4   Q    What is your understanding of why Dr.
 5   Hsieh was called to evaluate this patient
 6   shortly after midnight?
 7   A    I think the patient was complaining of
 8   some lower abdominal fullness, and the nurse
 9   wanted him to do an exam to add to the
10   information she had that she was going to
11   convey to Dr. Hahn.
12   Q    And what -- what is your understanding
13   of Dr. Hahn's duties and responsibilities at
14   that point?  What is he required to do?
15             MR. SCHOBERT:   Dr. Hahn?
16             MR. KADLEC:    Objection.
17   BY MR. JACOBSON:
18   Q    Pardon me, Dr. Hsieh.
19   A    The house officer, you know, does a
20   focused task.  So, he's called by the nurse
21   to do an exam on a patient with lower
22   abdominal fullness, and I think he's
23   required to do an exam, you know, the type
24   of exam required by the question that he's
25   asked to fulfill.
0145
 1   Q    Contrast for me, if you would, Dr.
 2   Hsieh's responsibilities as opposed to what
 3   Dr. Hahn's responsibilities would be if he
 4   came in to see this patient at that time.
 5   A    Well, you know, I'm the residency
 6   director here, and, you know, when a
 7   resident is cross-covering a patient, and
 8   the nurse calls him and says:  oh, Mr.
 9   Jones's IV came out, can you put an IV in
10   Mr. Jones, his job is to go put an IV in.
11   If Dr. Hahn was called by the nurse, I think
12   he probably would have been held responsible
13   for doing a more -- you know, for the
14   overall evaluation of the patient if he saw
15   the patient.  I think Dr. Hsieh is called in
16   to do a focused task.
17   Q    Now, I want you to assume that what
18   Nurse Prokop said to Dr. Hsieh was something
19   like this, assuming this to be true:  Dr.
20   Hsieh, I'd like you to see this patient to
21   evaluate her vital signs, her urine output
22   which has decreased, her anxiety, and I'm
23   concerned that she's not quite right, okay.
24   If Dr. -- if Nurse Prokop asked Dr. Hsieh
25   something along those lines, would that give
0146
 1   rise to a duty to do a broader examination?
 2             MR. SCHOBERT:   Objection.  Go
 3   ahead, Doctor.
 4             THE WITNESS:   Um, I think in that
 5   setting, Dr. Hsieh should have said:  well,
 6   you should probably call Dr. Hahn if you're
 7   worried about the overall status of the
 8   patient.  You know, I'll look at the
 9   patient, and either one of the two of us
10   should call Dr. Hahn and report what's going
11   on.
12   BY MR. JACOBSON:
13   Q    Well, in other words, Doctor, if,
14   indeed, the nurse was concerned about the
15   patient's vital signs, urine output and
16   anxiety, and if indeed the nurse was
17   concerned that -- that the patient was not
18   quite right, then, it's your opinion that
19   there is a duty of some physician to do an
20   examination at this point.
21   A    Well --
22             MR. SCHOBERT:   Objection.
23             THE WITNESS:   I think the nurse
24   -- the nurse -- we know -- we know -- we
25   will agree that the nurse called Dr. Hahn
0147
 1   when she had the information.
 2   BY MR. JACOBSON:
 3   Q    Uh-huh.
 4   A    And I think Dr. Hahn was the ultimate,
 5   you know, arbiter and decision-maker, and
 6   whatever she said to Dr. Hsieh, she just
 7   wanted him to do things, an exam that she
 8   couldn't do or wasn't trained to do so she
 9   could report that to Dr. Hahn.
10   Q    Once -- once again, if -- if the nurse
11   asked Dr. Hahn -- pardon me, Dr. Hsieh, to
12   evaluate the patient because she was
13   concerned about the patient's vital signs,
14   urine output, anxiety, and that she was
15   concerned that the patient was not quite
16   right, would Dr. Hsieh's responsibilities be
17   broader than the limited responsibilities
18   that you've mentioned?
19             MR. SCHOBERT:   Objection.
20             THE WITNESS:   I think --
21             MR. SCHOBERT:   You can answer.
22             THE WITNESS:   -- if she said:
23   gee, I paged Dr. Hahn 16 times; I can't get
24   ahold of him; would you please assume the
25   role of the attending physician in this
0148
 1   patient because I can't find the attending
 2   physician, his responsibilities would have
 3   been broader.  I think in this situation,
 4   you know, she says:  I'm going to call Hahn;
 5   you know, just take a look at the patient so
 6   I can convey to him, you know, what your
 7   findings are on your exam.
 8   Q    All right.  Well, let's just say that
 9   hypothetically Dr. Hsieh -- let's just say
10   hypothetically the patient -- strike that.
11   Hypothetically, the nurse asked Dr. Hsieh to
12   evaluate this patient because of her concern
13   over the vitals, urine output, anxiety, and
14   she was concerned that the patient was not
15   quite right, and -- and Dr. Hsieh didn't
16   say, as you suggested:  you better get Hahn
17   involved.  He -- he said okay, and he
18   undertook to see the patient on that basis.
19   Under those circumstances, would his duties
20   be broader than the -- than the very focused
21   duty that you -- that you mentioned?
22             MR. JEFFERS:   Objection.
23             THE WITNESS:   Now, Dr. Hsieh's
24   job is to gather information that the --
25   that either he or the nurse can convey to
0149
 1   the attending physician, and not to -- you
 2   know, in the setting where there's a -- the
 3   captain of the ship is Dr. Hahn.  He's --
 4   he's getting the information.  He's
 5   responsible for the patient, and his job is
 6   to, you know -- you know, with the nurse
 7   convey the information to Dr. Hahn, not to
 8   make clinical judgments.  I think that's the
 9   key here.
10   Q    In your report, you indicate that Dr.
11   Hsieh was called on the second occasion to
12   evaluate this patient for a question of
13   vaginal bleeding and hematoma, correct?
14   A    Correct.
15   Q    From where do you derive that?
16   A    You know, it might be more accurate to
17   say for abdominal fullness, and I believe
18   Nurse Prokop said:  I called him because I
19   was concerned about the fullness, so I
20   wanted him to examine the patient.  I think
21   vaginal bleeding I might have got from
22   somewhere else, but I think it might be more
23   accurate to say postpartum bleeding, you
24   know, interpelvic bleeding, fullness.
25   Q    The records indicate, the records
0150
 1   themselves, that -- that Dr. Hsieh was
 2   called to evaluate the patient's vitals,
 3   output and anxiety, correct?
 4             MR. SCHOBERT:   Objection.
 5             THE WITNESS:   That's not what I
 6   recall from Nurse Prokop's deposition.
 7   BY MR. JACOBSON:
 8   Q    Well, let's assume for the moment that
 9   Dr. Hsieh was called, as you indicated in
10   your report, specifically for the purposes
11   of vaginal bleeding and hematoma.  Did he
12   have an obligation to review the entirety of
13   the labs, the 11:30 labs?
14   A    Again, I think he -- he has a focused
15   job.  So, if he's worried about hematoma or
16   bleeding, then he should look at the
17   hematocrit.
18   Q    Okay.  So, your answer is no, he
19   doesn't -- in that circumstance he need not
20   look at all the labs?
21   A    Correct.
22   Q    All right.  Now, if -- if we assume
23   that he's called into the room because of
24   the nurse's concern with the patient's
25   vitals, urine output and anxiety, then,
0151
 1   Doctor, does he have a duty in that setting
 2   to look at all the labs?
 3             MR. SCHOBERT:   Objection.
 4             THE WITNESS:   And we're going to
 5   assume that the nurse is not going to call
 6   the attending physician, that she's going to
 7   rely totally on him?
 8   BY MR. JACOBSON:
 9   Q    We're going to assume simply that the
10   nurse says:  Doctor, I'm concerned about
11   this patient's vitals, urine output and
12   anxiety, okay?  And Dr. Hsieh says:  okay,
13   I'll see the patient, okay?  There's no
14   other information transmitted between the
15   two of them at that point, okay?  Under
16   those circumstances, does Dr. Hsieh have an
17   obligation to look at all the labs?
18             MR. SCHOBERT:   Objection.
19             THE WITNESS:   I think he's there
20   for a focused exam so information can be
21   conveyed to the attending physician.  I
22   think it was obvious in this setting that he
23   knew that the attending physician was going
24   to be called, and I don't think that it was
25   his job to -- you know, you look at the
0152
 1   information that Dr. Hahn -- you know, the
 2   same information that Dr. Hahn was going to
 3   get.
 4   BY MR. JACOBSON:
 5   Q    Okay.  Well, in other words, are you
 6   saying that it would be reasonable for Dr.
 7   Hsieh to presume that Dr. Hahn would be
 8   informed of the labs?
 9   A    Correct.
10   Q    But, yet, you're not critical of the
11   fact that he wasn't.
12             MR. JEFFERS:   Objection.
13   BY MR. JACOBSON:
14   Q    Correct?
15             MR. JEFFERS:    That's an issue.
16             MR. SCHOBERT:   We've been through
17   all that.  I mean, is that a statement?
18             MR. JEFFERS:   And this is
19   argumentative.
20             MR. SCHOBERT:   And it's
21   argumentative.  You've asked him that
22   question ten times.
23             MR. JACOBSON:   I -- I  --
24             MR. SCHOBERT:   I know you --
25   BY MR. JACOBSON:
0153
 1   Q    I can see some inherent controversy
 2   here, Doctor.
 3             MR. SCHOBERT:   That's
 4   cross-examination at trial.  You've got
 5   those statements.  You've already got all
 6   those statements.  You're just arguing with
 7   him.
 8   BY MR. JACOBSON:
 9   Q    Dr. Hsieh need not look at the labs if
10   it is his understanding that they will be
11   communicated to Dr. Hahn, correct?
12   A    Correct.
13             MR. SCHOBERT:   Objection.
14   BY MR. JACOBSON:
15   Q    All right.  If he did not have that
16   understanding, then he needs to look at the
17   labs, correct?
18             MR. SCHOBERT:   Objection.
19             THE WITNESS:   Dr. Hsieh needs to
20   fulfill the task that he's called for.
21   BY MR. JACOBSON:
22   Q    Uh-huh.
23   A    And when a patient has an attending
24   physician, the overall clinical
25   decision-making relies on the attending
0154
 1   physician, and if the nurse calls him to
 2   say:  would you interpret the white count
 3   for me, or would you interpret these labs,
 4   then he needs to look at the labs.
 5   Q    Doctor, isn't it true that, indeed, the
 6   house physician needs to fulfill the job
 7   that he's called for, and if he's called
 8   hypothetically to evaluate the patient's
 9   vitals, urine output and anxiety, that the
10   answer might lie in the labs; isn't that
11   true?
12             MR. SCHOBERT:   Objection.  Asked
13   and answered five times.  You've asked him
14   the same question, the same hypothetical.
15   You're arguing with him.  Move on to
16   something else.
17   BY MR. JACOBSON:
18   Q    Doctor, isn't it true that the
19   explanation for the irregularities in the
20   patient's vitals, urine output, anxiety may
21   indeed lie in the labs?
22   A    I think the decision-maker in the case
23   is Dr. Hahn.  He's the one that needs the
24   information.
25   Q    Doctor, might the labs provide an
0155
 1   explanation for those things:  vitals, urine
 2   output and anxiety?
 3             MR. SCHOBERT:   Objection.
 4             THE WITNESS:   Those three things
 5   specifically, no.
 6   BY MR. JACOBSON:
 7   Q    Is that part -- is that part of the
 8   picture, Doctor?
 9             MR. SCHOBERT:   Objection.
10   BY MR. JACOBSON:
11   Q    The labs.
12   A    In -- for --
13   Q    In other words, in order to determine
14   why vitals are irregular, the output is
15   reduced and the patient has a degree of
16   anxiety, might the labs assist in providing
17   an explanation for those things?
18   A    The -- the hematocrit or --
19   Q    The white count, the left shift, the
20   works.
21             MR. SCHOBERT:  For anxiety --
22   what were the three again, anxiety --
23   BY MR. JACOBSON:
24   Q    Vitals and decreased urine output.
25   A    Not necessarily.
0156
 1   Q    But they might.
 2             MR. SCHOBERT:   Objection.
 3             THE WITNESS:   I think that's up
 4   for Dr. Hahn to decide.
 5   BY MR. JACOBSON:
 6   Q    When Dr. Hsieh sees this patient after
 7   midnight, does -- is -- is there a
 8   patient/physician relationship there when
 9   he's called to see this patient?
10   A    When an intern or a house officer is
11   called to start an IV or order Tylenol, I
12   think they're called for a specific reason.
13   So, it just depends on how you define
14   "relationship."
15   Q    Does -- does -- does a physician have a
16   duty to render reasonable care to the
17   patient at that point?
18             MR. SCHOBERT:   Dr. Hsieh you're
19   talking about?
20   BY MR. JACOBSON:
21   Q    Yeah, Dr. Hsieh.
22   A    I think the role of the house officer
23   is to do the specific tasks that he's asked
24   to do by the nurse or the attending
25   physician, and I don't think it's his job to
0157
 1   render specific types of care.  If he's
 2   asked to put an IV in, then his job is to
 3   put an IV in, in an appropriate way.  If
 4   he's asked to do an exam for abdominal
 5   fullness, his job is to do the exam.
 6   Q    Let me wrap up with this line of
 7   questioning with a couple of more questions,
 8   and then I'll move on.  If the physician --
 9   if Dr. Hsieh is called to evaluate vaginal
10   bleeding and hematoma, as well as anxiety,
11   reduced output and vitals, if he finds no
12   explanation or concern about the vaginal
13   bleeding and hematoma, is he -- is he then
14   done?  Need he not worry about any abnormal
15   vitals or anxiety or reduced urine output?
16   Is he done?
17             MR. SCHOBERT:   Objection.
18             THE WITNESS:   If the information
19   is conveyed to the attending physician, he's
20   done.
21   BY MR. JACOBSON:
22   Q    So, he need not make or continue to
23   attempt to -- to explain what's going on?
24   A    It's not his job to -- to exercise the
25   clinical judgment, the patient's physician
0158
 1   does, nor -- nor in many circumstances would
 2   it be appropriate.
 3   Q    Now, the nurse testified that she had
 4   gotten the labs up on the screen for Dr.
 5   Hsieh.  Do you recall that?
 6   A    Correct.
 7   Q    And if you look at the H&H and none of
 8   the other labs, that would be adequate care?
 9   A    I think the way --
10             MR. SCHOBERT:   Objection to "none
11   of the other labs."
12   BY MR. JACOBSON:
13   Q    Correct?
14   A    Correct.
15   Q    Doctor, you've heard the term, chain
16   of command; have you not?
17   A    Sure.
18   Q    Okay, in the context of -- of a nurse
19   potentially going over the physician's head
20   if she doesn't feel the physician is
21   rendering appropriate care?
22   A    Correct.
23   Q    Doctor, is there a chain of command
24   duty which applies to the house officer as
25   well?
0159
 1   A    You know, it's interesting because I
 2   read that, I think, in the -- the
 3   plaintiff's nursing expert put in her report
 4   that she expected the nurse to call the
 5   chief of staff or something, and -- and I
 6   think that is a bit farfetched.  I think if,
 7   you know, in terms of this chain of command,
 8   I think if -- if -- if -- you know, a nurse
 9   sees something clearly inappropriate or a
10   house officer sees something clearly
11   medically inappropriate, inappropriate
12   behavior, then they're going to call
13   somebody, but I think in a situation where
14   it's really an issue of clinical judgment,
15   you wouldn't do that.
16   Q    Well, if the house officer thinks that
17   -- that -- that the physician's clinical
18   judgment is inappropriate, and that the
19   patient is not getting the care that he or
20   she needs, does the house officer have an
21   obligation to speak to the attending?
22             MR. KADLEC:    Objection.
23             THE WITNESS:   Yes.
24   BY MR. JACOBSON:
25   Q    Okay.  That would be the bottom rung of
0160
 1   the chain of command, correct?
 2   A    Sure.  I think the house officer's job
 3   is to convey information to the attending.
 4   Q    Including his or her opinion that the
 5   attending's not pushing the right buttons,
 6   correct?
 7             MR. SCHOBERT:   Objection.
 8   BY MR. JACOBSON:
 9   Q    If indeed that exists.
10             MR. SCHOBERT:   Objection.
11             THE WITNESS:   You know, the
12   reality is, that sort of thing, you know, if
13   there's an obvious -- if there's an obvious
14   problem, I could see that happening, but in
15   areas where it's -- it's clinical judgment,
16   and a complex situation, you just don't see
17   that happening.
18   BY MR. JACOBSON:
19   Q    Doctor, do you think that Dr. Hahn
20   should have come in to see this patient
21   earlier than he did?
22   A    Based upon the information he had?
23   Q    Yeah.
24   A    If he didn't have the left shift?
25   Q    Yeah.
0161
 1   A    I don't think so.
 2   Q    Okay.  If he had the left shift, then
 3   should he have come in earlier?
 4   A    I think probably.
 5   Q    All right.  If he had the information,
 6   Doctor, about the blood pressures dropping
 7   after -- after midnight, should that have
 8   prompted him to come in?
 9   A    I think it's judgment, and I don't have
10   an opinion.
11             MR. SCHOBERT:   He's down to that
12   five-minute mark, guys.
13             MR.JACOBSON:   Harley, obviously,
14   at the end of the deposition, that I think
15   --
16   BY MR. JACOBSON:
17   Q    Doctor, if you had a patient who was in
18   your opinion in shock or headed in that
19   direction, a patient who had blood pressures
20   that were falling, would you continue that
21   patient on magnesium sulfate?
22   A    You know, I don't -- you know, I give
23   patients magnesium for other reasons.  I
24   haven't had -- had a patient on magnesium
25   sulfate for preeclampsia since I was a
0162
 1   third-year medical student, so I don't
 2   really know.
 3   Q    But the fact of the matter, Doctor, is
 4   you would be concerned in a patient with
 5   falling blood pressure that the magnesium
 6   sulfate might contribute to the patient's
 7   going into shock; would you not?
 8   A    You know, it's something I would defer
 9   to an OB/GYN person on.
10   Q    Doctor, let's just talk about a patient
11   who's not an obstetrical patient, a patient
12   who's a patient of yours who has blood
13   pressure that is falling and a patient that
14   you suspect there might be an infection,
15   okay?  Now, in that patient, Doctor, would
16   you feel that magnesium sulfate would be
17   contraindicated?
18             MR. SCHOBERT:   Objection.
19             MR. JEFFERS:   Object.
20             THE WITNESS:   You know, I've
21   never used magnesium sulfate in that way.
22   If I had a patient on a medicine that I
23   thought was lowering their blood pressure
24   that I understood and had managed, and I --
25   and I thought that -- depending on what I
0163
 1   thought the shock was due to, I would.
 2   BY MR. JACOBSON:
 3   Q    Well, you know, I -- without getting
 4   into specifics, Doctor, magnesium sulfate
 5   would be a relative contraindication in a
 6   patient who has falling blood pressures.
 7   Can we agree on that?
 8   A    If there's an eclamptic patient who
 9   you're worrying about seizing and other
10   things, I think --
11   Q    I'm talking about relative
12   contraindication, relative contraindication.
13   A    Relative, sure.
14   Q    All right.  Now, what about Ativan; is
15   that also, Doctor, a relative
16   contraindication in a patient who has
17   falling blood pressures?
18   A    It really doesn't do much to blood
19   pressure.
20             MR. JEFFERS:   Pardon me?
21             THE WITNESS:   It really doesn't
22   do much to blood pressure.
23   BY MR. JACOBSON:
24   Q    Doctor, if you had been called in as a
25   consultant on this patient, and seen the
0164
 1   labs at midnight, and presumably suspected
 2   that she might have an infection, and had
 3   observed the falling blood pressures that
 4   were recorded at two and three and four
 5   a.m., Doctor, you would have recommended
 6   strongly that the magnesium sulfate be
 7   discontinued, correct?
 8             MR. KADLEC:    Objection.
 9             MR. JEFFERS:    Objection.
10             THE WITNESS:   You know, I don't
11   know that I would have -- I think I would
12   have done blood cultures and started
13   antibiotics at that point had -- not that I
14   think it would have made any difference in
15   this case, but, you know, again, the
16   magnesium is really in the realm of the
17   OB/GYN doctor, and I -- you know, I might
18   ask him about it, but I would really -- you
19   know, honestly I think it's something that I
20   would expect him to address and understand.
21   BY MR. JACOBSON:
22   Q    Well, Doctor, it wouldn't be purely
23   within the realm of the OB doctor.  I mean,
24   to the extent that this is an anticonvulsant
25   for a preeclamptic patient, that would be
0165
 1   something that would be peculiarly in their
 2   realm, but to the extent it's a relative
 3   contraindication in a patient who might be
 4   going into shock, that would be within your
 5   realm, correct?
 6   A    Well, I think that the OB/GYN doctor is
 7   the one who understands the clinical course
 8   of preeclampsia, understands the risk and
 9   benefits of the type of magnesium they use
10   for preeclampsia, and I would defer to them.
11   Q    And who is it, Doctor, that -- that has
12   more experience in the -- in the critically
13   ill patient or the Intensive Care Unit
14   patient; yourself or the OB/GYN?
15   A    Probably myself.
16   Q    All right.  Now, Doctor, if, indeed,
17   you were called as a consultant at three
18   a.m., what you would do is you would have a
19   discussion with the OB/GYN about the degree
20   of benefit that the patient was deriving
21   from the magnesium sulfate, correct?
22   A    Correct.
23   Q    All right, and if, indeed, it did not
24   appear as if an anticonvulsant was necessary
25   at that point, okay, in spite of the fact
0166
 1   that it might have been continued for
 2   another 12 hours prophylactically, you would
 3   recommend under those circumstances that the
 4   -- that the magnesium sulfate be
 5   discontinued, correct?
 6             MR. SCHOBERT:   Objection.
 7             THE WITNESS:   I would defer --
 8             MR. KADLEC:    Objection.
 9             THE WITNESS:   -- to the OB/GYN
10   doctor to know the risk/benefit ratio in a
11   preeclampsic patient regarding when to stop
12   the magnesium.
13             MR. SCHOBERT:   It's 9:00.  How
14   are you doing?
15             MR. JACOBSON:   I've got aways to
16   go.
17             MR. SCHOBERT:   Well, I'm telling
18   you, the doctor's indicated -- we've been at
19   it three hours, and we've got to be at my
20   office at 8:00.  I've got to be there at
21   eight o'clock tomorrow morning.  I think
22   most of these depos have gone three hours, I
23   mean, and I'm just telling you that I've
24   tried to, you know, let you have free rein,
25   but I'm not sure we can get this
0167
 1   rescheduled, and I'm not going to make him
 2   sit here if he's got sick patients after
 3   three hours, and he's got to get home.
 4             MR. JACOBSON:   Jeff, I don't know
 5   what you want me to say.  I've got something
 6   I've got to get through, and when you guys
 7   get to the point when you're sick and tired
 8   of me, then let me know.
 9             MR. SCHOBERT:   I'm just telling
10   you that I'm not agreeing when we terminate
11   the deposition to saying that we're going
12   to, you know, bust all hell to get back here
13   to do it again.  I mean, if I have to file
14   the motion under the circumstances, I'll let
15   the judge order me to make him available
16   again if we can't come up with a mutual
17   date.  I'm just telling you we're running
18   out of time.  That's all I'm saying.
19             MR. JACOBSON:   Well, let me just
20   -- let me just say what I have to say, and
21   that is:  this is a very complex case, and
22   this physician is here not only on proximate
23   cause or not just on liability but on both,
24   okay, and under the circumstances, and
25   what's at stake in this case, three hours is
0168
 1   nowhere near what I would consider to be a
 2   long deposition.  So, I'm going to get done
 3   what I need to get done, and I'm going to
 4   represent my client zealously, and I have
 5   not done that yet.  So, you guys, let's keep
 6   going, and when --
 7             MR. SCHOBERT:   No, no.   He's
 8   already told you.  It's 9:00 --
 9             MR. JACOBSON:  Well --
10             MR. SCHOBERT:  -- and if you're
11   saying, I mean, you've got ten minutes, I'll
12   ask him to stay.
13             MR. JACOBSON:   I don't.
14             MR. SCHOBERT:   If you're saying
15   you've got an hour and a half, I'm not going
16   to ask him to stay, and I just -- I just
17   want you to understand I'm not going to
18   agree at this moment to continuing or having
19   the deposition go on, you know.  I will talk
20   to you about that off the record and if we
21   can work it out. We will --
22             THE WITNESS:   Can we go off the
23   record?
24             MR. SCHOBERT:  Yeah, let's go off
25   the record.
0169
 1             (At this time a short recess was
 2   had.)
 3             MR. SCHOBERT:   On the record.
 4   If the doctor's willing to do it, we'll go
 5   forward, but I'm going to tell you that at
 6   the time that he says he's done, I will make
 7   every effort, if you're not done, to say we
 8   are done because I think this is long
 9   enough, and -- and -- and I just don't know
10   if we'll have the time.  I mean, we've got
11   things scheduled.  We've got -- I just don't
12   want to be precluded from my utilization of
13   an expert.  All right, let's go.
14             MR. JACOBSON:   Let's go
15             THE VIDEOGRAPHER:   On the record.
16   BY MR. JACOBSON:
17   Q    Doctor, what's the nature of your
18   current practice?
19   A    Internal medicine and infectious
20   diseases.
21   Q    Okay.  Can you give me a breakdown?
22   A    It's about half and half.
23   Q    Doctor, at University Hospitals, are
24   there some physicians who will do more
25   obstetrics, some who will do less?
0170
 1   A    You mean in --
 2   Q    As a consult.
 3   A    No, we -- we -- we get called on a
 4   monthly -- when you're on for a month, you
 5   get called on all the consults.
 6   Q    All right.  So, there's no -- all
 7   right.  Doctor, have you written any --
 8   anything specifically dealing with the topic
 9   of the diagnosis and treatment of -- of a
10   Group A infection?
11   A    Not that I recall.
12   Q    Anything that -- that deals with the
13   topic of diagnosis and treatment of toxic
14   shock-like syndrome?
15   A    No.
16   Q    All right.  You finished your
17   fellowship when, Doctor?
18   A    In 1992.
19   Q    Okay, and how many peer -- peer-
20   reviewed articles have you submitted for
21   publication since that time?
22   A    Probably ten. I'll just note, my -- my
23   career is more focused on education than
24   research.
25   Q    Do you know Dr. Martens?
0171
 1   A    No.
 2   Q    Do you know any of the other experts in
 3   this case?
 4   A    I'm familiar with Dr. Crane in terms of
 5   his being sort of a ubiquitous expert, but I
 6   don't know him.
 7   Q    Okay.  Have you been involved in cases
 8   where Dr. Crane has been involved in the
 9   past?
10   A    Yes.
11   Q    On how many occasions?
12   A    Maybe half a dozen.
13   Q    Has there been any breakdown on how
14   many times you've been for the plaintiff or
15   the defense in those cases?
16   A    Overall cases that I've served as an
17   expert on or with Dr. Crane?
18   Q    The ones with Dr. Crane.
19   A    I think in the cases where Dr. Crane's
20   been involved, I've always been for the
21   defense, and he's always been for the
22   plaintiff.
23   Q    Okay, and what's typically, Doctor,
24   your breakdown of percentage of plaintiff
25   and defense?
0172
 1   A    Sixty percent defense and 40 percent
 2   plaintiff.
 3   Q    Can you tell me, Doctor, any -- any
 4   local plaintiffs' attorneys that you've been
 5   retained by?
 6   A    Stage & Associates, Peter Vendaris,
 7   two.
 8   Q    Anybody else?
 9   A    No.  I think, you know, like most
10   people, you tend -- if you're a plaintiff's
11   expert, you tend to do more out of the
12   immediate region.
13   Q    Why is that, Doctor?
14   A    Well, it's one thing to -- to testify
15   that another physician violated standard of
16   care.  It's another thing for that to be
17   someone you work with, and I think it's --
18   most experts find that they're more
19   comfortable to be involved in a case with
20   someone they don't practice with.
21   Q    So, you acknowledge, Doctor, that --
22   that it's -- it's more difficult for
23   plaintiffs to get experts from the local
24   area.
25             MR. KADLEC:    Objection.
0173
 1             MR. JEFFERS:    Objection.
 2             THE WITNESS:   Speaking for me
 3   personally, I would say yes.  I don't
 4   generalize about other doctors.
 5   BY MR. JACOBSON:
 6   Q    Have you ever served as a house
 7   officer?
 8   A    Correct, of course.
 9   Q    And when -- when have you done that?
10   A    Well, house officer is a term that is
11   used for residents.
12   Q    Okay.
13   A    They're called house officers.
14   Q    Are there any differences, Doctor, in
15   your understanding between the duties of a
16   resident in this institution and a house
17   officer at institutions such as Parma, or
18   are they identical?
19   A    I think there's -- there's -- they're
20   not identical.  There are differences.
21   Q    What's the difference?
22   A    I think a house officer is really there
23   just for -- for function.  Residents in
24   training are sort of trying to -- to, you
25   know, assume more of a role as the patient's
0174
 1   physician, whereas house officers, which I
 2   have served also in other circumstances, are
 3   truly there just to, you know, be on call,
 4   you know, to answer calls from nurses and
 5   things.
 6   Q    So, the resident -- the resident in an
 7   institution like this tends to attempt to
 8   assume more of the role of the patient's
 9   physician?
10   A    Well, it's variable.  For instance, we
11   have an intern that's on call tonight who
12   just does coverage of patients, and that job
13   is much like a house officer's job, and I
14   would compare those as very similar, and
15   their job is to respond to nurse's questions
16   or issues on patients.  Other residents who
17   are in a different kind of training
18   situation kind of work as a team with the
19   attending physician.  So, it's a different
20   role.
21   Q    Doctor, when, as a physician, you're
22   evaluating a patient for potential
23   infection, are risk factors -- are those
24   things that you consider?
25   A    Sure.
0175
 1   Q    Okay, and that's what any reasonable
 2   physician would do, correct?
 3   A    I think it's -- yeah, obviously.
 4   Q    And a patient who's just had a baby is
 5   at greater risk for infection than the
 6   general population, correct?
 7             MR. SCHOBERT:   Objection.
 8             THE WITNESS:   I think it sounds
 9   like a reasonable statement.
10   BY MR. JACOBSON:
11   Q    Why is that?
12   A    You know, there's frequently tears in
13   the skin that could be a portal of entry,
14   things like that.
15   Q    Doctor, the number of vaginal exams
16   that a patient had, does the patient's risk
17   of -- of infection increase accordingly?
18   A    I don't know.
19   Q    But certainly a vaginal exam is a risk
20   factor for infection, correct?
21   A    In a postpartum patient or any patient?
22   Q    Well, well, a patient who -- who -- not
23   postpartum but a patient who -- who during
24   the intrapartum period had vaginal exams,
25   that would increase her risk for a
0176
 1   postpartum infection, correct?
 2   A    You know, I don't know if that's true
 3   or not.  I don't have an opinion.
 4   Q    What about the placement of a Cervidil
 5   suppository, Doctor?
 6   A    Pardon me?
 7   Q    Cervidil suppository, do you know what
 8   Cervidil is?
 9   A    Could you spell it?
10   Q    C-E-R-V-I-D-I-L.
11   A    Cervidil, oh, Cervidil, that's a
12   foreign body.  It might increase the risk of
13   infection.  I'm not sure.
14   Q    Okay.  What about the use of
15   instrumentation during delivery, C-section,
16   would that -- would that increase --
17   A    You know, I don't know that for a fact.
18   I wouldn't necessarily dispute it.
19   Q    Doctor, at 8:20 p.m., Dr. Hahn ordered
20   a culture and sensitivity from the urine and
21   a urinalysis.  Does that suggest to you that
22   he had some degree of suspicion for
23   infection?
24   A    Yes.
25   Q    All right.  At 8:15 p.m. on the 25th,
0177
 1   the patient is noted to have rectal and
 2   vaginal pressure.
 3             MR. SCHOBERT:   Have what?
 4   BY MR. JACOBSON:
 5   Q    Rectal and vaginal pressure.  Would
 6   that -- would that increase your index of
 7   suspicion for infection?
 8   A    No.
 9   Q    And why not?
10   A    I just -- it sounds very nonspecific to
11   me.
12   Q    Doctor, this patient was given
13   antipyretics and had ice packs applied as
14   well; is that correct?
15   A    Correct.
16   Q    Now, the ice packs were applied at
17   various times to the perineum, to the neck,
18   the back, correct?
19   A    Correct.
20   Q    Would that tend to depress the fever
21   somewhat?
22   A    I don't think ice packs would have much
23   effect.
24   Q    Or suppress the fever.
25   A    I didn't think it would have much
0178
 1   effect.
 2   Q    Okay.  Would that be -- would that be
 3   independent of where the ice packs were
 4   placed?
 5   A    Well, if you put an ice pack on the
 6   thermometer, it's going to suppress the
 7   temperature, but I just don't think ice
 8   packs -- if you take a kid with a fever of
 9   105 and put him in a cold bath, you can
10   lower the temperature, but I don't think you
11   lower the temperature on adults with ice
12   packs.
13   Q    What about Motrin, Doctor, or Tylenol?
14   A    They'll lower temperature.
15   Q    Okay.  To what extent?
16   A    Well, depending on what caused the
17   temperature, Tylenol or Motrin can lower
18   temperature.  With infections, people
19   usually spike through Motrin and Tylenol
20   both, but they can lower temperature.
21   Q    Doctor, in a patient in the puerperal
22   period who has a fever or a temperature of
23   101.6, would you tend to keep the patient
24   off of antipyretics to see where the fever
25   is going?
0179
 1   A    I don't think so. I mean, you have to
 2   weigh the -- if the patient's in pain, and
 3   postpartum fever is common, so --
 4   Q    Doctor, on the 11:30 labs, you
 5   indicated that the drop in the white count
 6   to 4600 under some circumstances might be
 7   interpreted as a good sign, correct?
 8   A    Correct.
 9   Q    But, in fact, Doctor, the -- the drop
10   here in a six and a half hour period is
11   somewhat dramatic.  Typically, you would
12   expect there be -- to be a more gradual drop
13   in the white count if the patient is simply
14   improving, correct?
15             MR. SCHOBERT:   Objection.
16             THE WITNESS:   Incorrect.
17   BY MR. JACOBSON:
18   Q    What is incorrect about that?
19   A    Well, you know, I just had a patient
20   here about three weeks ago who -- a
21   psychotic patient who fought with the
22   police, and was all stressed out, and had a
23   white count of 23,000, and we repeated it a
24   few hours later, and it was seven.  So,
25   again, you know, you can demarginate your
0180
 1   white cells in the setting of stress and,
 2   you know, adrenalin, and they can drop
 3   quickly.  So, again, it's something you
 4   interpret in the clinical setting.  It's my
 5   bedtime.
 6   Q    Doctor, at 1:00 a.m. the patient
 7   experiences uterine pain and cramping.  Is
 8   that something that would increase your
 9   index of suspicion for infection?
10   A    No.
11   Q    At 2:30 a.m., the patient subjectively
12   reported that her abdomen felt hard.  Is
13   that something that would increase your
14   index of suspicion for infection?
15   A    Not necessarily in a postpartum
16   patient.
17   Q    At 3:15 a.m., it was objectively --
18   strike that.
19             The nurse palpated the abdomen and
20   reported distension.  Would that increase
21   your index of suspicion for infection?
22   A    In a postpartum pre-eclamptic patient,
23   it might.
24   Q    Doctor, at 2:15 a.m., the blood
25   pressure was reported as 100 over 44, then
0181
 1   rechecked, and it was 88 -- 88 over 53, and
 2   then 120 over 60.  Doctor, would those blood
 3   pressures increase your index of suspicion
 4   for infection?
 5   A    Yes.
 6   Q    Strongly so?
 7   A    Yeah.  It depends, I think, in a
 8   postpartum patient on magnesium sulfate who
 9   you might give them a little fluid bolus and
10   other clinical parameters.  So, I'm not sure
11   I would use the term, "strongly."
12             MR. SCHOBERT:   I'm sorry.  What
13   -- what time was that that you were
14   referencing?
15             MR. JACOBSON:  2:15.
16             MR. SCHOBERT:   Okay.
17   BY MR. JACOBSON:
18   Q    Doctor, would you expect this patient
19   who was mildly preeclamptic to have somewhat
20   elevated blood pressures remaining at that
21   point?
22   A    I don't know.
23   Q    Okay.  Doctor, the -- the blood
24   pressures at 2:15 a.m., did the nurse -- or
25   strike that.
0182
 1             Was the nurse required by the
 2   standard of care to report those to Dr.
 3   Hahn?
 4             MR. JEFFERS:    Objection.
 5             THE WITNESS:   I don't know.
 6   BY MR. JACOBSON:
 7   Q    And why is it that you don't know?
 8   You just --
 9   A    I'd defer to a nurse, you know.  I
10   think again it's a clinical situation.  I
11   believe in this case the blood pressure
12   responded relatively quickly and normalized
13   relatively quickly.  So, I think, if you
14   have persistent hypotension, that's one
15   thing.  A blood pressure that sort of pops
16   back is another thing.
17   Q    Well, did the blood pressure ever
18   normalize after 2:15 a.m.?
19   A    Yes.
20             MR. SCHOBERT:   If you need to
21   look at the chart, just so -- I know it's
22   late, but I don't want you to -- there's
23   graphic vital sheets.  What page is that,
24   Harley?
25             MR. GORDON:    It's --
0183
 1             THE WITNESS:   I'm one of these
 2   go-to-bed-at-nine-get-up-at-four kind of
 3   people. So --
 4             MR. SCHOBERT:   Yes, I know.
 5   Section 19, go to section 19.  Here, those
 6   are at least some of the recordings of the
 7   vitals.
 8             MR. JEFFERS:   And at what time
 9   were you looking?
10             MR. SCHOBERT:   I think he said
11   --I think Bill's question was:  did the
12   blood pressure come back up after 2:15?
13             MR. JACOBSON:   Did it ever return
14   to normal?
15             MR. SCHOBERT:   Yeah, return to
16   normal after 2:15.  I think it's right here.
17   
18             MR. GORDON:    There's one on 143.
19             THE WITNESS:   Yeah, at 6:30 it
20   was 113 over 53.  That's a normal blood
21   pressure for a -- you know, a person.
22   BY MR. JACOBSON:
23   Q    A dyastolic reading of 53 is normal,
24   Doctor?
25   A    Well, you -- you take the -- the whole
0184
 1   blood pressure, the mean blood pressure.
 2   That's a blood pressure for a healthy
 3   person.
 4   Q    Doctor, the -- the -- strike that.
 5             That would be on the very low end
 6   of normal, correct?
 7   A    The 53 or the 113?
 8   Q    The 53.
 9   A    The 53 is low.  It's -- you know, but
10   pregnancy, due to progesterones, is
11   associated with lower blood pressure.  So,
12   again --
13   Q    But not in preeclampsia, though.
14   A    Well, not with preeclampsia, correct.
15   Preeclampsia is a high blood pressure, but,
16   you know, if the preeclampsia is wearing
17   off, she's on magnesium, it's not -- it's
18   not something that would be a red flag or --
19   Q    Doctor, strep A is an aerobic bacteria?
20   A    Correct.
21   Q    Would you expect a postpartum patient
22   to have a foul-smelling lochia with a --
23   with an aerobic infection?
24   A    I don't think so, but I would defer to
25   an OB/GYN.
0185
 1   Q    Being that Dr. Hahn ordered the culture
 2   and sensitivity at 8:20 and urinalysis --
 3             MR. JEFFERS:   At what time?
 4   BY MR. JACOBSON:
 5   Q    At 8:20 p.m. on the 25th, and being
 6   that -- and -- and presuming that he had a
 7   suspicion of infection at that point, was it
 8   incumbent upon him to inquire about the labs
 9   at 11:30?
10   A    No.
11   Q    Okay.  In spite of the fact that he
12   ordered a culture and sensitivity, and
13   assuming he suspected infection, when he
14   gets on the phone with the nurse after the
15   11:30 labs come back, you're entirely
16   content with his decision not to inquire
17   about the white count, the left shift, the
18   bands, correct?
19   A    I believe he knew the white count.
20   Q    Okay, and what about the left shift?
21   He need not inquire about that?
22   A    That's -- it's just something that's
23   not what some of the people think about.
24   Lawyers seem to think about it, but, you
25   know, not doctors.
0186
 1   Q    What about the white count, Doctor?  Is
 2   it necessary for him to inquire about the
 3   white count, at least minimally the white
 4   count?
 5   A    I believe he was told the white count.
 6   Q    All right.  My question to you, Doctor,
 7   is, if he wasn't told the white count, is he
 8   required to ask about it, once again
 9   assuming that, when he ordered the culture
10   and sensitivity at 8:20, he had a suspicion
11   of infection?
12             MR. KADLEC:    Objection.
13             THE WITNESS:   This is -- this is
14   a hypothetical?
15   BY MR. JACOBSON:
16   Q    A hypothetical.  At 8:20 we know he
17   orders -- he -- he -- he orders a culture --
18   C&S from the urine.  Assuming that he did
19   that because he had a suspicion of
20   infection, did he have the duty to -- to ask
21   about at least the white count on the 11:30
22   labs?
23             MR. KADLEC:    Objection.
24             THE WITNESS:   I think it depends
25   on what the nurse tells him, you know, that
0187
 1   her fever's down.  If she's got this
 2   abdominal fullness, but she looks okay, then
 3   not necessarily.  I think if his index of
 4   infection was -- was high enough, he should
 5   have inquired.
 6   BY MR. JACOBSON:
 7   Q    Well, was it -- was it necessary,
 8   Doctor, for the nurse, when she reported to
 9   Dr. Hahn, to communicate to her -- to -- to
10   Dr. Hahn her concerns about this patient's
11   anxiety level, reduced urine output and
12   vitals?  Is that something that minimally
13   the nurse was required to communicate to Dr.
14   Hahn?
15             MR. JEFFERS:   Objection.
16             THE WITNESS:   Required by the
17   nursing standard of care?
18   BY MR. JACOBSON:
19   Q    Yes.
20   A    Is that what you're referring to?  The
21   --
22             MR. SCHOBERT:   I'm going to
23   object.  Go ahead.
24             THE WITNESS:   In a situation -- I
25   -- I guess so.
0188
 1             MR. JACOBSON:  All right.
 2             MR. JEFFERS:   What time are we
 3   talking about then?
 4             MR. SCHOBERT:   At 11 -- I think
 5   he's talking about 12:30.
 6             MR. JACOBSON:  12:30.
 7             THE WITNESS:   12:30.
 8             MR. SCHOBERT:   Or 12:45.
 9   BY MR. JACOBSON:
10   Q    Now, let's assume that she did tell him
11   those things, and let's assume that he did
12   have a suspicion of infection at 8:20.  Now,
13   under those circumstances, Doctor, did the
14   standard of care require Dr. Hahn to ask
15   minimally about the white blood count on the
16   11:30 labs?
17             MR. KADLEC:    Objection.
18             MR. SCHOBERT:   Objection.
19             THE WITNESS:   See, I don't
20   understand the question because we know the
21   nurse told him the white count, and, so,
22   once he's told the white count, I don't see
23   why he would ask about it.
24   BY MR. JACOBSON:
25   Q    I want you to assume that he wasn't
0189
 1   told.  I -- I'm asking a hypothetical.
 2   A    Okay.
 3   Q    The hypothetical is that, number one,
 4   he has a suspicion of infection at 8:20.
 5   Number two, the nurse communicated her
 6   concerns about urine output --
 7             MR. SCHOBERT:  Okay.
 8             THE WITNESS:   Well, I think just
 9   --
10             MR. SCHOBERT:   Okay.  Let him
11   finish.  Let him finish.
12             THE WITNESS:   Sure.
13   BY MR. JACOBSON:
14   Q    -- about urine output, anxiety and
15   vitals.  Assuming that all went down, did
16   Dr. Hahn have minimally the duty to ask
17   about the white count?
18             MR. SCHOBERT:   Objection.
19   BY MR. JACOBSON:
20   Q    Assuming he wasn't told it.
21   A    I think, depending upon what the nurse
22   told him on the phone, the critical
23   situation was, in their conversation, based
24   upon that information, if -- if he suspected
25   infection, he should have asked about the
0190
 1   white count.
 2   Q    Not the answer I was looking for but
 3   I'll move on.  I'm getting tired too.
 4             Assuming Dr. Hahn asked the nurse
 5   in this phone call:  how's the patient
 6   doing, she -- she should have communicated
 7   to him her concerns, correct?
 8             MR. SCHOBERT:   Objection.
 9             THE WITNESS:   She should have
10   conveyed the information she had.
11   BY MR. JACOBSON:
12   Q    Okay, and if she had concerns about
13   this patient, she had the duty to convey
14   those to him, correct?
15             MR. JEFFERS:   Objection
16             MR. SCHOBERT:   Objection.
17             THE WITNESS:   She should -- you
18   know, nurses are really sort of protocol-
19   objective driven.  Nurses are not -- their
20   job isn't to draw conclusions.  Their job is
21   to report information objectively, and her
22   job was to report the objective information
23   and let him decide what course of action was
24   appropriate.
25   BY MR. JACOBSON:
0191
 1   Q    All right.  Now, there was a 3:45 a.m.
 2   phone call to Dr. Hahn as well.  Did the
 3   nurse have an obligation to -- strike that.
 4             At 3:15, the nurse noticed
 5   diminished bowel sounds.  Would that fact,
 6   Doctor, increase your index of suspicion for
 7   infection?
 8   A    Yes.
 9   Q    Did the nurse have the duty to
10   communicate that to Dr. Hahn?
11             MR. JEFFERS:   Objection.
12             THE WITNESS:   That's --
13             MR. SCHOBERT:   At 3:45 you're
14   saying?
15             MR. JACOBSON:  Yeah.
16             MR. SCHOBERT:   Assuming -- that's
17   an assumption.  Go ahead, Doctor.
18             THE WITNESS:   I -- again, it
19   depends upon the clinical situation.  If the
20   patient was complaining about abdominal pain
21   and abdominal tenderness, and that was part
22   of why she was calling, but just somewhat
23   decreased bowel sounds isn't something that
24   has to be reported.
25   BY MR. JACOBSON:
0192
 1   Q    Doctor -- Doctor, you rely on nurses to
 2   give you information all the time; don't you?
 3   A    I -- I view nurses as a teammate.
 4   Q    All right.  Now, sometimes there's a
 5   call from a nurse to you, or you call the
 6   nurse, and you say:  what's going on, or
 7   what's up, correct?
 8   A    Uh-huh, uh-huh.
 9   Q    And you have some expectation about
10   what the nurse is going to tell you, correct?
11   A    Sure.
12   Q    All right.  Now, in a patient such as
13   this, if the nurse has noted diminished
14   bowel sounds, do you expect your nurses to
15   tell you that?
16             MR. SCHOBERT:   Objection.
17             THE WITNESS:   It depends upon
18   the situation.
19   BY MR. JACOBSON:
20   Q    Okay, in the situation of this patient,
21   would you expect the nurse to tell you about
22   diminished bowel sounds?
23   A    Not necessarily.
24   Q    And why is that?
25   A    You know, it just depends upon whether
0193
 1   the patient's complaining of abdominal pain,
 2   how much they're diminished.
 3   Q    All right.  The patient's complaining
 4   of uterine cramping.  The patient has low --
 5   has -- has lowered blood pressures at 2:15,
 6   uterine cramping at 1:00 A.M., complaints of
 7   abdomen feeling hard at 2:30 a.m.,
 8   complaints of abdomen being more -- pardon
 9   me, the nurse notes the abdomen is more
10   distended at 3:15 a.m. and also notes bowel
11   sounds diminished.  Now, under the situation
12   of -- of that, okay, would you expect the
13   nurse to tell you about the diminished bowel
14   sounds?
15             MR. SCHOBERT:   Objection.  Go
16   ahead.
17             THE WITNESS:   Not necessarily.
18   BY MR. JACOBSON:
19   Q    Okay.  All right, and let's assume,
20   Doctor, that this is a postpartum patient
21   who has had two elevated temperatures,
22   under -- who has also evidenced reduced
23   urine output and anxiety.  Would you expect
24   the nurse under those circumstances to tell
25   you about diminished bowel sounds?
0194
 1   A    I think ileus is common in a postpartum
 2   patient, and it's, you know, probably a
 3   common finding.
 4   Q    Well, let me just -- let me just put it
 5   to you another way.  At 3:45 a.m. when Dr.
 6   Hahn called, what's the minimal amount of
 7   information --
 8             MR. JEFFERS:   I want to correct
 9   that. I don't think she said that in her
10   deposition.  I think she called Dr. Hahn.
11   That's what it says in the deposition.
12   BY MR. JACOBSON:
13   Q    When she -- when she called Dr. Hahn,
14   what is the minimal amount of information
15   that the standard of care required be
16   transmitted in that phone call?
17   A    That there was a blood pressure of 80
18   over 52.
19   Q    Anything else?
20   A    No.
21   Q    Okay.  Now, we can agree that, if the
22   nurse did not communicate to Dr. Hahn that
23   the blood pressure was 80 over 52, then she
24   has deviated from the standard of care.
25             MR. JEFFERS:   Objection.
0195
 1   BY MR. JACOBSON:
 2   Q    Correct?
 3   A    Correct.
 4   Q    All right.  At 12:45 a.m., the phone
 5   call --
 6             MR. JEFFERS:   What time now?
 7             MR. SCHOBERT:   12:45.
 8   BY MR. JACOBSON:
 9   Q    12:45.  What is the minimal amount of
10   information that the nurse needs to transmit
11   to Dr. Hahn to comply with the standard of
12   care?
13             MR. SCHOBERT:   Objection.
14             MR. JEFFERS:   Objection.
15             THE WITNESS:   The vitals signs,
16   and the patient's subjective complaints, and
17   the results of Dr. Hsieh's exam.
18   BY MR. JACOBSON:
19   Q    How about the reduced urine output?
20   A    I think -- I think it's a matter of
21   degree, you know.
22   Q    All right.  The vital signs, the
23   patient's complaints and the results of Dr.
24   Hsieh's exam, if she doesn't do that, she's
25   deviated, correct?
0196
 1             MR. JEFFERS:   Objection.
 2             THE WITNESS:   Any abnormal vital
 3   signs, let's put it that way.
 4   BY MR. JACOBSON:
 5   Q    That is correct?
 6   A    If the vital signs are abnormal.  I'm
 7   not saying she necessarily needs to report
 8   normal vital signs.
 9   Q    The temperature is 100.4, and the pulse
10   is 128, need she communicate those to Dr.
11   Hahn?
12   A    You know, I'm not sure on a postpartum
13   floor that those would be considered
14   abnormal.  If they're considered abnormal,
15   then she should report them.
16   Q    Her concerns about the patient, in
17   other words, her concern -- strike that.
18             MR. SCHOBERT:   Objection.  I
19   think you've asked him about those
20   subjective complaints.
21             MR. JACOBSON:   All right.
22   BY MR. JACOBSON:
23   Q    You know what?  Before we go any
24   further, why don't we get -- why don't we
25   ask the doctor to read us his notes, because
0197
 1   that I do want.  Can we --
 2             MR. SCHOBERT:   We've got 15
 3   minutes here.  So, he wants you to read --
 4             MR. GORDON:    Wait a minute.
 5   Before we get to that, let's go off the
 6   record.
 7             (At this time a short recess was
 8   had.)
 9             (Off the videotape.)
10             MR. JACOBSON:   On the written
11   record.
12             MR. SCHOBERT:   Are you going to
13   ask him to read it?
14             MR. JACOBSON:   I'm going to ask,
15   to save time, if the doctor would transcribe
16   these notes, or if he won't, I'll ask him to
17   read it.
18             MR. SCHOBERT:   Do you have the
19   ability to have those transcribed, or would
20   it be easier just to have this woman down
21   here do that for you?
22             THE WITNESS:   Is there someone in
23   your office who transcribes?
24             MR. SCHOBERT:   If you can dictate
25   a tape, I'll have somebody in my office type
0198
 1   it and send it back to you, and you can
 2   correct it.
 3             THE WITNESS:   I will dictate a
 4   tape.
 5             MR. SCHOBERT:   Let's go and
 6   finish up.
 7             MR. JACOBSON:   What's that
 8   notation right there?  Is that an expert's
 9   name?
10             MR. SCHOBERT:   We're on the
11   record.
12   BY MR. JACOBSON:
13   Q    What's that right there?
14   A    I think it says Mandel.
15   Q    Is that in reference to Mandel and
16   Bennett?
17   A    Correct.
18             MR. JACOBSON:   Back on the
19   record.
20             THE VIDEOGRAPHER:   On the record.
21   BY MR. JACOBSON:
22   Q    Doctor, there's a -- there's a
23   reference to Mandel and Bennett in your
24   notes, correct?
25   A    Correct.
0199
 1   Q    Did you refer to Mandel and Bennett?
 2   A    Can I look at the notes?
 3   Q    Please.
 4   A    These are notes that I take from
 5   people's depositions, and, so, I might have
 6   thought that the doctor was referring to
 7   Mandel.
 8   Q    Okay.  Did you refer to Mandel and
 9   Bennett?
10   A    I don't know.
11   Q    Doctor, in your notes from Dr. Hsieh's
12   deposition, you indicate, "Nurse reported
13   labs to Hsieh."
14   A    No, the nurse reported the labs to
15   Hahn, and she also reported Hsieh's physical
16   findings to Hahn.  Nurse reported labs and
17   Hsieh's physical findings to Hahn.  That's
18   what that says.
19             MR. JACOBSON:  All right.  Thank
20   you.  All right.  So, Jeff, what are we
21   going to do about that?  I mean, should I
22   ask him to read them, or can we get them --
23             MR. JEFFERS:   He just said --
24             MR. SCHOBERT:   I mean, I will --
25   if he can put them on a tape, I'll have my
0200
 1   office transcribe them for him.
 2             MR. JACOBSON:   All right.  Can
 3   you do that for us, Doctor?
 4             MR. SCHOBERT:   I mean, it may
 5   take a few days to expedite getting that
 6   back.
 7             MR. JACOBSON:   And I'll want --
 8   I'll want a copy of all of the -- of all the
 9   notes, okay?
10             MR. SCHOBERT:  That's fine.
11   BY MR. JACOBSON:
12   Q    As a matter of fact, why don't we have
13   the court reporter mark them if you don't
14   mind, Doctor, and I'll have the court
15   reporter give them directly to -- to Jeff.
16   A    Can I make a copy so I can keep them
17   for my --
18   Q    Sure.
19             MR. SCHOBERT:   He's going to have
20   to --
21             THE WITNESS:   I have to
22   transcribe them.
23             MR. JACOBSON:   Yeah.
24             THE WITNESS:   You can mark them.
25             MR. SCHOBERT:   If you want to
0201
 1   mark them so you don't think he's going to
 2   steal them or hide them, we'll put one, two,
 3   three, four --
 4             MR. GORDON:    Let the record
 5   reflect we have not suggested that at all,
 6   Mr. Schobert.
 7             MR. SCHOBERT:   -- five, six.
 8   There's six.
 9             MR. JACOBSON:   I marked them
10   because that's what good lawyers do.
11             MR. SCHOBERT:   All right.  Then
12   mark them, and there's six pages to the
13   exhibit.
14             MR. GORDON:    That's all right.
15   That's all right, Bill.
16             MR. JACOBSON:   I think I'm about
17   done.  Just give me a minute here.  I'll
18   talk to Harley for a minute.
19             MR. SCHOBERT:   You can just send
20   me a cassette or something.  Do you have
21   cassettes?  All right, just send a cassette.
22             THE WITNESS:   A standard
23   handheld.
24             MR. SCHOBERT:   Yes, that's what
25   we use at the office.
0202
 1             THE WITNESS:   I'll talk real
 2   slow.
 3             MR. SCHOBERT:   And then you'll
 4   make my temporary secretary very happy.
 5             THE WITNESS:   And then she can
 6   send it to me, and I'll correct it.
 7   BY MR. JACOBSON:
 8   Q    Just some legal housekeeping, Doctor.
 9   Your charges for this deposition?
10   A    Three fifty an hour.
11   Q    Okay, and your charges to review cases?
12   A    Two fifty an hour.
13   Q    Okay.  For trial testimony?
14   A    Three fifty an hour.
15   Q    Have you been retained by Mr.
16   Schobert's firm in the past?
17   A    No, not by Mr. Schobert.  I don't know
18   about his firm.
19   Q    Okay.  What about by Mr. Jeffers' firm
20   or Mr. Bonezzi's firm?
21   A    I've worked with Mr. Bonezzi himself
22   once on a case.
23   Q    Okay.  How about for his predecessor
24   firm, Jacobson, Maynard?
25   A    Right at the end of their storied
0203
 1   reign.
 2   Q    Okay, on how many occasions?
 3   A    I don't know.
 4   Q    About how many cases do you review on a
 5   yearly basis, Doctor?
 6   A    About 20.
 7   Q    And how many years have you been doing
 8   that?
 9   A    About five.
10   Q    Do you advertise your services in any
11   professional journals?
12   A    No.
13             MR. JACOBSON:  Give me a moment
14   to talk to Mr. Gordon.
15             (At this time a short recess was
16   had.)
17             THE VIDEOGRAPHER:   On the record.
18   BY MR. JACOBSON:
19   Q    Doctor, I want you to assume that --
20   that the nurse communicated the lab results
21   to Dr. Hsieh.  That would include the white
22   count and left shift.  What were Dr. Hsieh's
23   obligations under that hypothetical?
24             MR. KADLEC:    Objection.
25             MR. SCHOBERT:   Objection.
0204
 1             THE WITNESS:   Before I answer the
 2   hypothetical, I'll just say, A, I think the
 3   testimony is that she didn't, and, B, I
 4   don't think the labs were available anyway,
 5   but I think, as long as Dr. Hsieh knew that
 6   the labs would be communicated to Dr. Hahn,
 7   he had no obligation.
 8   BY MR. JACOBSON:
 9   Q    So, it would be reasonable for Dr.
10   Hsieh to rely on the fact that the labs
11   would be communicated to Dr. Hahn?
12   A    Correct.
13   Q    All right, but, yet, you have no
14   criticism of the fact that the labs were not
15   communicated to Dr. Hahn.
16             MR. SCHOBERT:   Objection.
17             MR. JEFFERS:   Objection.
18             MR. SCHOBERT:   We're going back
19   over old ground.
20   BY MR. JACOBSON:
21   Q    Correct?
22   A    I think I explained again --
23             MR. SCHOBERT:   He explained it in
24   detail.
25             THE WITNESS:   Things are more
0205
 1   subtle than just yes or no, and I explained
 2   it previously.
 3             MR. JACOBSON:   Mr. Gordon?
 4             MR. SCHOBERT:   Oh, come on.  Bill
 5   didn't like it the first time.  All right.
 6   Are you guys done?
 7             MR. JACOBSON:   Do you guys have
 8   any questions?
 9             MR. SCHOBERT:   No.
10             MR. JACOBSON:   All right.  I'll
11   get you out of here.
12             MR. SCHOBERT:   Doctor, you do
13   have the right to review the transcript.
14   I'll send it to you.  Just indicate you
15   don't waive signature.  Just say:  I do not
16   waive signature.
17             THE WITNESS:   I do not waive
18   signature.
19             MR. SCHOBERT:   Thank you.
20                 - - - o0o - - -
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0206
 1                    CERTIFICATE
 2   The State of Ohio,   )
 3   County of Cuyahoga.  )   SS:
 4       I, Luanne Stone, a Notary Public within
 5   and for the State of Ohio, duly commissioned
 6   and qualified, do hereby certify that the
 7   within-named witness, KEITH ARMITAGE, M.D.,
 8   was by me first duly sworn to testify to the
 9   truth, the whole truth and nothing but the
10   truth in the case aforesaid; that the
11   testimony then given by the above-referenced
12   witness was by me reduced to stenotypy in
13   the presence of said witness; afterwards
14   transcribed; and that the foregoing is a
15   true and correct transcription of the
16   testimony so given by the above-referenced
17   witness.
18       I do further certify that this
19   deposition was taken at the time and place
20   in the foregoing caption specified and was
21   completed without adjournment.
22       I do further certify that I am not a
23   relative, counsel or attorney for either
24   party, or otherwise interested in the
25   event of this action.
0207
 1       IN WITNESS WHEREOF, I have hereunto set
 2   my hand and affixed my seal of office at
 3   Cleveland, Ohio this ______ day of
 4   _______________, A.D., 2001.
 5   
 6   
 7                 ____________________________
 8                 Luanne Stone, f.k.a. Protz
 9                 Notary Public
10                 In and for the State of Ohio
11                 My commission expires 4/6/03
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