0001
 1             IN THE COURT OF COMMON PLEAS
 2               OF CUYAHOGA COUNTY, OHIO
 3                       - - - - -
 4   LARRY ZERBIAN, et al.,
 5     Plaintiffs,
 6         vs.           Case No. CV-07-618652
 7   UNIVERSITY HOSPITALS
 8   HEALTH SYSTEM, INC.,
 9   et al.,
10     Defendants.
11                       - - - - -
12           DEPOSITION OF MAHI ASHWATH, M.D.
13              THURSDAY, DECEMBER 20, 2007
14                       - - - - -
15            The deposition of MAHI ASHWATH, M.D., a
16   Defendant herein, called by the Plaintiffs for
17   examination under the statute, taken before me,
18   Cynthia A. Sullivan, a Registered Professional
19   Reporter and Notary Public in and for the State
20   of Ohio, pursuant to notice and stipulations of
21   counsel, at the offices of Moscarino & Treu, The
22   Hanna Building, Suite 630, 1422 Euclid Avenue,
23   Cleveland, Ohio, on the day and date set forth
24   above, at 3:00 p.m.
25                       - - - - -
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiffs:
 3     Becker & Mishkind Co., LPA, by
 4     HOWARD D. MISHKIND, ESQ.
 5     Skylight Office Tower
 6     1660 West Second Street
 7     Suite 660
 8     Cleveland, Ohio  44113
 9     (216) 241-2600
10   
11   On behalf of the Defendants:
12     Moscarino & Treu, by
13     KRIS H. TREU, ESQ.
14     630 Hanna Building
15     1422 Euclid Avenue
16     Cleveland, Ohio  44115
17     (216) 621-1000
18   
19                         ----
20   
21   
22   
23   
24   
25   
0003
 1               MAHI ASHWATH, M.D., of lawful age,
 2   called for examination, as provided by the Ohio
 3   Rules of Civil Procedure, being by me first duly
 4   sworn, as hereinafter certified, deposed and
 5   said as follows:
 6           EXAMINATION OF MAHI ASHWATH, M.D.
 7   BY MR. MISHKIND:
 8         Q.    Would you please state your name.
 9         A.    Mahi Ashwath.
10         Q.    Dr. Ashwath, my name is Howard
11   Mishkind, and I represent Larry Zerbian and his
12   wife in connection with a lawsuit that has been
13   filed against you and others.  First let me ask
14   you, have you ever had your deposition taken
15   before?
16         A.    No.
17         Q.    Essentially what I'm attempting to
18   do and hopefully I will accomplish is to find
19   out as much as I can relative to your
20   involvement in Mr. Zerbian's care back in
21   September of '05 and ask you some other
22   questions as it relates to the medical subject
23   matter that we're here to talk about.
24               I will attempt to make my questions
25   as clear as possible, but if I don't make it
0004
 1   clear to you, tell me that you don't understand
 2   the question, and I will rephrase the question.
 3   Will you do that for me?
 4         A.    Sure.
 5         Q.    If you answer a question, I'm going
 6   to conclude that you understood the question, so
 7   please don't guess and don't speculate.  If you
 8   answer something, may I conclude that you
 9   understood the question?
10         A.    Okay.
11         Q.    Is that fair?
12         A.    Yes.
13         Q.    If you need to take a break at any
14   time, please, let me know.  If you need to refer
15   to any medical records in the course of
16   answering my questions, go ahead and do that as
17   well; okay?
18         A.    Yes.
19         Q.    If you are answering the question, I
20   will let you complete the answer.  I'm pretty
21   good at not cutting off someone while they are
22   talking.  I'd ask you to do the same thing.
23   Don't start answering my question until I'm done
24   so that the court reporter gets a full, accurate
25   question and answer; okay?
0005
 1         A.    Okay.
 2         Q.    Doctor, I'm going to hand you what I
 3   have marked in advance as Plaintiff's Exhibit 1.
 4   This was attached to discovery responses that
 5   were provided through your attorneys.  It's a
 6   five-page document.  Would you take a look at
 7   that and confirm on the record whether or not
 8   that is a current, accurate, and up-to-date
 9   curriculum vitae for yourself.
10                       - - - - -
11     (Thereupon, Plaintiff's Deposition Exhibit 1
12      was marked for purposes of identification.)
13                      - - - - -
14         A.    The only thing which has changed
15   recently is my visa status.  I'm no longer a
16   permanent resident.  I'm a citizen.  I don't
17   know if it makes a difference.
18         Q.    Let's clarify that.
19         A.    My pager number has changed, too,
20   since then.  That's not the current pager
21   number.
22         Q.    On the first page on your CV where
23   it says visa status, it was listed as permanent
24   resident on this version.  If we were to sit
25   down and prepare one as of December 20th, what
0006
 1   would your visa status be listed as?
 2         A.    Citizen.
 3         Q.    When did you become a citizen?
 4         A.    I can't recollect exactly, but I
 5   think it was in July.
 6         Q.    Of 2007?
 7         A.    July 2007.
 8         Q.    Congratulations.
 9         A.    Thank you.
10         Q.    In looking at your CV, I just have a
11   few questions about your current practice, your
12   background, and then we're going to move into
13   other matters; okay?
14         A.    Okay.
15         Q.    I notice just in looking at your CV
16   I see that your husband also is a physician.
17         A.    Yes.
18         Q.    His first name is Ravi?
19         A.    Yes.
20         Q.    What type of physician is he?
21         A.    He's a pediatric cardiologist.
22         Q.    Where does he practice at?
23         A.    At Rainbow Hospitals.
24         Q.    Back in July or during the period of
25   July of 2004 to June of 2006, you were or you
0007
 1   have on your CV listed faculty senior instructor
 2   at University Hospitals Case Western Reserve
 3   University; true?
 4         A.    Yes.
 5         Q.    That's the period of time that we're
 6   interested in in terms of Mr. Zerbian; correct?
 7         A.    Yes.
 8         Q.    You were at least on the hospital
 9   record listed as the attending for Mr. Zerbian;
10   is that correct?
11         A.    Yes.
12         Q.    Where it says faculty senior
13   instructor, can you tell me what your job
14   responsibilities were during that period of time
15   as a senior instructor?
16         A.    Senior instructor is the name given
17   for my position.  So my job responsibilities
18   included rounding with the residents and taking
19   care of patients and teaching the residents and
20   also rounding with nurse practitioners and
21   taking care of patients.
22         Q.    Had you completed your residency?
23         A.    Yeah.  I completed my residency
24   before starting this job.
25         Q.    So you completed your residency in
0008
 1   June of 2004?
 2         A.    Yes.
 3         Q.    Now, you're in a fellowship
 4   currently?
 5         A.    Yes.
 6         Q.    What is your fellowship in?
 7         A.    Cardiology.
 8         Q.    Is it pediatric or adult?
 9         A.    Adult cardiology.
10         Q.    I've looked at your presentations
11   and your bibliography, and I don't see anything
12   that would be specific to the subject matter
13   that we're here to talk about that would involve
14   the diagnosis or treatment of some type of
15   bacteremia, whether it be diskitis or
16   osteomyelitis or endocarditis.  Am I accurate
17   that you have not written or presented on those
18   topics?
19         A.    Yes.
20         Q.    You are board certified?
21         A.    In internal medicine.
22         Q.    Once you finish your fellowship, do
23   you intend to take further board certification?
24         A.    In cardiology, yes.
25         Q.    Back in September of 2005 when you
0009
 1   were the attending for Mr. Zerbian at University
 2   Hospitals, who was your employer?
 3         A.    University Hospitals.
 4         Q.    I think in the interrogatory --
 5         A.    I think it was both University
 6   Hospitals and Case Western Reserve University
 7   together kind of employed me at that time.
 8         Q.    Just to clarify, there is reference
 9   in the interrogatories to your employer at that
10   time being University Physicians.  Let me just
11   get to that page so I'm not misspeaking.
12   University Physicians, Inc., was that in fact
13   the name of the practice group or the
14   corporation that you worked for?
15         A.    I'm not sure how this really works,
16   but University Physicians, Inc., was what was on
17   my paycheck and probably on my billing sheets or
18   something, but I was employed by University
19   Hospitals and Case Western.  I think University
20   Physicians, Inc., was under University
21   Hospitals, if I'm correct, but I'm not
22   absolutely sure of that.
23         Q.    Prior to September 5, 2005, when
24   Mr. Zerbian was a patient at UH, had you ever
25   had any contact with Mr. Zerbian as a patient?
0010
 1         A.    Not that I can recollect.
 2         Q.    After Mr. Zerbian was discharged on
 3   September 16th, 2005, we know that he went to
 4   Heather Hill for rehab; true?
 5         A.    Yes.
 6         Q.    Did you see him at Heather Hill at
 7   all?
 8         A.    No.
 9         Q.    Did you have any communication with
10   any of the physicians that were seeing him at
11   Heather Hill?
12         A.    No.
13         Q.    Do you know why Mr. Zerbian was sent
14   to Heather Hill for rehab as opposed to some
15   other facility?
16         A.    Well, we usually get a social worker
17   involved when we decide that the patient needs
18   rehabilitation in a rehab facility, and the
19   patient's family usually makes the decision
20   about where they want to go.  So upon looking at
21   the records, my understanding was that I think
22   the patient's family wanted Heather Hill.
23         Q.    Mr. Zerbian's wife, her first name
24   was Susie or Susan, do you recall having any
25   communication with her at any time during the
0011
 1   hospitalization?
 2         A.    Usually we try to keep the families
 3   informed about the patient's progress, but I
 4   really don't recollect much about the patient or
 5   the family.
 6         Q.    Let me give you sort of a global
 7   question in terms of Mr. Zerbian and perhaps his
 8   wife or his family.  Independent of what is in
 9   the record, if you were to just put the records
10   aside, having reviewed it but put it aside are
11   you able to recollect in your mind this patient
12   and being involved in any aspect of his care a
13   little bit over two years ago?
14         A.    I really don't recollect anything.
15   Maybe vaguely a little bit, but not much.
16         Q.    Is it fair to say then that your
17   testimony today and at trial will be based upon
18   what is recorded in the hospital record as
19   opposed to saying, oh, I remember A, B, and C
20   happening, but it's not reflected in the
21   records?
22         A.    No.  Whatever I say would probably
23   be from the records.
24         Q.    Fair enough.  When Mr. Zerbian was
25   readmitted to University Hospitals for surgery
0012
 1   to replace the mitral valve, did you have any
 2   involvement in his care at that time?
 3         A.    No.
 4         Q.    When did you first become aware of
 5   the fact that Mr. Zerbian had developed
 6   bacterial endocarditis?
 7         A.    When I received notification about
 8   the lawsuit.
 9         Q.    You have in front of you some
10   records.
11         A.    Yes.
12         Q.    Let me take a look and see what you
13   have in the records.
14               MR. MISHKIND:  Is there anything in
15   there that's attorney work product?
16               MR. TREU:  I hope not.  I'll let you
17   know if there is.
18               MR. MISHKIND:  Off the record.
19             (Discussion off the record.)
20         Q.    Doctor, it appears that you have, as
21   best as I can tell, a complete copy of the chart
22   for September 5, '05, through September 16, '05,
23   for Mr. Zerbian; is that correct?
24         A.    Yes.
25         Q.    I presume this was a copy that was
0013
 1   provided to you by counsel?
 2         A.    Yes.  What do you mean by counsel?
 3               MR. TREU:  We're counsel, attorney
 4   counsel.
 5         Q.    By your attorney.
 6         A.    Yes.
 7         Q.    Have you had an opportunity to
 8   review anything in addition to the hospital
 9   record prior to today's deposition?
10         A.    No.
11         Q.    Have you been provided with any
12   transcripts of any depositions that have been
13   taken in this case?
14         A.    No.
15         Q.    Have you done any research,
16   literature research, to familiarize yourself
17   with any of the subject matters that are
18   involved in this case?
19         A.    No.
20         Q.    Have you been provided with any
21   literature by anyone that you've reviewed to
22   prepare yourself for today?
23         A.    No.
24         Q.    Let me step back for a moment before
25   we dive full speed ahead into Mr. Zerbian's
0014
 1   care.  I asked you whether you had ever had
 2   you're deposition taken before, and you said no.
 3   I will tell you you're doing a fine job so far.
 4   At the end of the deposition I want to make
 5   absolutely certain that I've been fair to you,
 6   and I may even ask you if I've been fair to you
 7   at the conclusion of the deposition.
 8               Have you ever been named as a
 9   defendant in any medical negligence cases either
10   prior to, before this, or since this case?
11         A.    No.
12         Q.    Have you ever applied for privileges
13   to a hospital and been denied privileges?
14         A.    No.
15         Q.    I think in the interrogatory
16   answers, but I'm not certain so forgive me if
17   you've already answered it --
18         A.    That's okay.
19         Q.    -- you've never been the subject of
20   any disciplinary action; have you?
21         A.    No.
22         Q.    I take it you've not served as an
23   expert witness in a case?
24         A.    No.
25         Q.    So at the time that you saw
0015
 1   Mr. Zerbian, you had finished your fourth year
 2   of residency in internal medicine?
 3         A.    My third year of residency.  It's
 4   three years' residency in internal medicine.
 5         Q.    So the subsequent years you were an
 6   attending?
 7         A.    Yes.
 8         Q.    Were you essentially a hospitalist?
 9         A.    Yes.
10         Q.    If you were talking with somebody
11   back at that time, would you have described
12   yourself as a hospitalist as opposed to what we
13   have in the CV as a faculty senior instructor?
14         A.    Yeah.  I would have probably said
15   academic hospitalist.
16         Q.    Academic hospitalist?
17         A.    Yes.
18         Q.    As a hospitalist, because that term
19   seems to come up more and more in cases, what is
20   your role in treating patients as opposed to a
21   patient's private physician or consultants?
22   What do you understand the role of a hospitalist
23   to be?
24         A.    As a hospitalist we provide a
25   service to the community physicians.  When we
0016
 1   admit their patients, we take care of their
 2   patients while they are in the hospital.  After
 3   discharge they can follow up with their primary
 4   care physicians.
 5         Q.    As a hospitalist your background was
 6   in internal medicine; correct?
 7         A.    Yes.
 8         Q.    Are there hospitalists that have
 9   other subspecialties that work in the same
10   capacity as a hospitalist, in other words,
11   cardiologists or other subspecialties, or are
12   most hospitalists internal medicine physicians?
13         A.    Yeah.  To my knowledge most
14   hospitalists are internal medicine.  I think
15   there are a few hospitalists in pediatrics who
16   take care of pediatric patients in the same way
17   that we take care of adult patients, but I'm not
18   aware of any specialists working as
19   hospitalists.
20         Q.    You did your primary education and
21   then your medical school training in India?
22         A.    Yes.
23         Q.    It looks like you came to the United
24   States and worked in Forest Park, Georgia.
25         A.    I was just an observer.  I didn't do
0017
 1   anything hands on.  I was just watching
 2   physicians taking care of patients.
 3         Q.    Tell me why you did that as your
 4   first position in the United States.
 5         A.    There's definitely a little
 6   difference in the way medicine is practiced in
 7   different parts of the world, and just to kind
 8   of get a little exposure about how things happen
 9   here.  That was the same time that I was
10   preparing for my boards and applying for
11   residency, so a little U.S. experience helps in
12   getting a residency spot, too.
13         Q.    Had you worked in India as a
14   physician?
15         A.    No.
16         Q.    You had just recently completed your
17   medical training at Osmania Medical College?
18         A.    Osmania.
19         Q.    I was close.
20         A.    Yes.
21         Q.    O-S-M-A-N-I-A Medical College?
22         A.    Yes.
23         Q.    Forgive me if I butcher any of the
24   terms.
25         A.    That's fine.
0018
 1         Q.    I'm sure it won't be the last term
 2   that I butcher.  So you were getting exposed to
 3   the practice of medicine from a family practice
 4   standpoint during the first two years that you
 5   were in the U.S.; true?
 6         A.    Yes.
 7         Q.    Then you started an internship and
 8   then proceeded into the residency program first
 9   at Mercer University School of Medicine and then
10   -- actually you did your entire residency at
11   Mercer University Medical Center of Central
12   Georgia?
13         A.    Yes.
14         Q.    In the area of internal medicine,
15   had you established any subspecialties back in
16   September of 2005?
17         A.    No.
18         Q.    As you're doing your fellowship now
19   in adult cardiology, is there an area of focus
20   that you are concentrating your fellowship in?
21         A.    In cardiology.
22         Q.    Right.  But in adult cardiology is
23   there some subspecialty that you're in in terms
24   of invasive or diagnostic?
25         A.    Not at this time.  Can you repeat
0019
 1   your previous question?  I was a little unclear.
 2         Q.    In terms of your internal medicine?
 3         A.    Yes.
 4         Q.    Back in September of 2005 when you
 5   were working as a hospitalist, did you have an
 6   area within internal medicine that you
 7   specialized in or had a particular interest in?
 8         A.    If I can answer that question again,
 9   I would think I must have known somewhere in
10   June of 2005 that I was going to start
11   cardiology in July of 2006, but I didn't have
12   any special training in cardiology as such.
13         Q.    One of the other parties to this
14   lawsuit, one of a number of other parties, is
15   Dr. Pawlicki who saw this patient at Geauga
16   Hospital.  Do you know Dr. Pawlicki?
17         A.    No.
18         Q.    Have you had any reason to talk to
19   Dr. Pawlicki about this case since the lawsuit
20   has been filed?
21         A.    No.
22         Q.    I asked you before in terms of his
23   deposition.  He was actually deposed twice.  One
24   was an abbreviated session, and then we came
25   back and finished the deposition.  You've not
0020
 1   read or been provided with a copy of his
 2   deposition?
 3         A.    No.
 4         Q.    One of the other doctors is
 5   Dr. Goddard.  Do you know Dr. Goddard?
 6         A.    No.
 7         Q.    You see that there are certain
 8   references to him being copied on various
 9   documents in the record; correct?
10         A.    We usually copy all the discharge
11   summaries to the primary care physicians, and we
12   usually try to provide information to the
13   primary care physicians about the patient's
14   condition and the patient, what we are planning
15   to do on the discharge plans and all the
16   relevant information.  That is kind of a
17   courtesy service.
18               Again, I don't recollect anything,
19   but I understand the patient was instructed to
20   follow up with Dr. Goddard in one to two weeks
21   after discharge.  So probably Dr. Goddard was
22   informed at the time, but I don't recollect
23   anything and there's nothing documented, so I
24   can't tell that for sure.
25         Q.    What you were just referring to to
0021
 1   make the record clear is your discharge summary
 2   for that September admission?
 3         A.    Admission, yes.
 4         Q.    That one- to two-week follow-up, was
 5   that a one- to two-week follow-up after he was
 6   discharged from Heather Hill?  I couldn't quite
 7   tell in terms of the reference that you had in
 8   the record.
 9         A.    Typically we just say from our
10   discharge because patients vary in terms of how
11   long they stay at rehabilitation places.
12   Typically it's from our discharge that we tell
13   them how many weeks to follow up.  And even if
14   they are in a rehab or in a nursing home, a
15   particular facility can make arrangements for
16   them to go and visit their primary care
17   physician.
18         Q.    Part of this you said is a courtesy
19   of University Hospitals?
20         A.    Yeah.  The hospitalist service, yes.
21         Q.    To keep the primary care physician
22   in the loop?
23         A.    In the loop, yes.
24         Q.    That's to make sure that there is
25   continuity of care on a patient who is being
0022
 1   seen at one hospital but is going to be followed
 2   by the primary care physician at a location
 3   outside of that hospital?
 4         A.    Yes.
 5         Q.    Continuity of medical care,
 6   especially where a patient has a possible
 7   infection and may need to have follow-up for
 8   signs and symptoms of infection, continuity of
 9   care is important; is it not?
10         A.    Well, usually continuity of care is
11   important pretty much for every patient because
12   we are just taking care of the acute admission.
13   So it's important to follow up with the primary
14   care physician.  So that's why we kind of make
15   it a policy that patients follow up with their
16   primary care physicians after discharge.
17         Q.    The communication with the copy of
18   the discharge summary and information about the
19   patient is so that that primary care physician
20   will have important information about the
21   patient so he or she can take further steps as
22   necessary; true?
23         A.    Yeah.  The communication about the
24   discharge summary is so that the primary care
25   physician knows what happened during the
0023
 1   hospitalization.
 2         Q.    Just to sort of complete the circle,
 3   that is what hospitalists do with primary care
 4   physicians?
 5         A.    Typically, yes.
 6         Q.    Is that what you consider to be the
 7   standard of care for a hospitalist?
 8         A.    Yes.  At least that's what we used
 9   to do most of the time.  There were some
10   patients who didn't have primary care
11   physicians.  We would try to set them up with
12   primary care physicians.
13         Q.    As you look at the record, and I
14   presume you've reviewed the record to
15   refamiliarize yourself with this case?
16         A.    Yes.
17         Q.    When you looked through the record,
18   did you see where there was any direct
19   communication while Mr. Zerbian was in
20   University Hospitals for the admission in
21   question with Dr. Goddard or with Dr. O'Hara,
22   who also is part of Dr. Goddard's practice,
23   where either you or any of your colleagues
24   called or requested information on the patient,
25   or on the flip side, Dr. Goddard or Dr. O'Hara
0024
 1   called or checked on the status of the patient?
 2         A.    To the best of my recollection, I
 3   don't think that I saw any such communication
 4   documented at least.
 5         Q.    Just to clarify one item while we're
 6   on your discharge summary --
 7         A.    Yes.
 8         Q.    -- if you would look to page 3 of
 9   the discharge summary, the last full
10   paragraph --
11         A.    Yes.
12         Q.    -- where it starts with the patient
13   is going to be discharged to Heather Hill today,
14   September 16, and then it says, comma, five year
15   old, I presume that should be 45 year old?
16         A.    No.  I thought it was probably
17   September 16th, 2005, or something because the
18   patient is not 45 years old.
19         Q.    Did you dictate the discharge
20   summary?
21         A.    Usually the residents dictate the
22   discharge summary, and they are typed.
23         Q.    It looks like Erin Williams dictated
24   this?
25         A.    Yes.
0025
 1         Q.    What year was Dr. Williams as a
 2   resident?
 3         A.    From the notes it looks like she was
 4   a first year at that time because we refer to
 5   her as an intern.
 6         Q.    I'm sorry?
 7         A.    I think she was a first year at that
 8   time from the notes.
 9         Q.    Just in terms of the hierarchy of
10   who was responsible, Dr. Williams, did she
11   report to you?
12         A.    Yes.
13         Q.    Are you able to fill in what might
14   be missing from that first line of the
15   dictation?
16         A.    Yeah.  I would think it's
17   September 16th, 2005, instead of five year old,
18   but I'm guessing again.
19         Q.    Fair enough.
20               MR. TREU:  That's all the guessing
21   she's going to do today.
22         Q.    Dr. Lisgaris is an infectious
23   disease physician; correct?
24         A.    Yes.
25         Q.    Was she an attending, or was she a
0026
 1   resident at the time?
 2         A.    She was an attending.
 3         Q.    Do you have a recollection of any of
 4   your discussions with Dr. Lisgaris about this
 5   patient other than what's reflected in the
 6   records?
 7         A.    No.
 8         Q.    Have you had any communication with
 9   Dr. Lisgaris at all relative to this lawsuit
10   since you became aware of the lawsuit?
11         A.    No.
12         Q.    Is Dr. Lisgaris still practicing in
13   the Cleveland area to your knowledge?
14         A.    I don't know.
15         Q.    In terms of the service, it has
16   Naff, N-A-F-F.  Who is Naff?
17         A.    Dr. Naff I think was one of the
18   older physicians who worked at University
19   Hospitals.  They have -- like if I'm right, they
20   have six medical services, and each service is
21   named after one of the physicians who worked
22   there before, and they contributed to the
23   medical care.  So the service was named after
24   him.
25         Q.    Was Dr. Naff at all involved in any
0027
 1   aspect of Mr. Zerbian's care?
 2         A.    No.
 3         Q.    You were the attending.
 4   Dr. Williams was a first year intern?
 5         A.    Intern.
 6         Q.    So she had just completed medical
 7   school, and this was her first year of post
 8   medical school training?
 9         A.    Yes.
10         Q.    Were there any other residents or
11   interns that were working under your
12   supervision?
13         A.    Yeah.  Usually we have one senior
14   resident who is either a second year or third
15   year, and we have a couple of interns.
16   Sometimes it might be three interns.  At this
17   time the second year resident, or I'm not sure,
18   she could be a third year resident, was
19   Dr. Jump.
20         Q.    Give me the last name again, please.
21         A.    J-U-M-P.
22         Q.    Any other residents?
23         A.    Over the weekend the call is shared
24   by other residents.  So on the 11th the patient
25   was taken care of by Dr. Horwitz, and he's a
0028
 1   second year resident, H-O-R-W-I-T-Z.  I believe
 2   he probably provided cross-cover on one of the
 3   nights.
 4               When the team is not in the
 5   hospital, the residents in the hospital provide
 6   cross-cover if needed.  But to my understanding
 7   that's the only residents from medicine service
 8   involved.
 9         Q.    Beside Dr. Lisgaris and one of the
10   residents or perhaps even I think there was a
11   medical student that was under Dr. Lisgaris,
12   were there any other services that were
13   consulted relative to Mr. Zerbian during his
14   hospitalization?
15         A.    I believe that was an ID fellow,
16   infectious diseases fellow, who was with
17   Dr. Lisgaris, not a resident.  The other
18   services involved in this patient's care were
19   ortho-spine and pain medicine, anesthesia-pain
20   service.
21         Q.    Doctor, there was a reference at one
22   point about Mr. Zerbian's pain level, and we can
23   pull out the reference, but there was some
24   suggestion that he was drug seeking.  Did you
25   see that reference?
0029
 1         A.     (Indicating.)
 2         Q.    That's a yes?
 3         A.    Yes.  Sorry.
 4         Q.    That's one of those rules that I
 5   should have given you.  Even though the court
 6   reporter sees you nodding your head, she can't
 7   interpret what that means unless you say it
 8   verbally.
 9               You're familiar with that reference?
10         A.    Yes.
11         Q.    Did you personally have an opinion
12   as to whether or not this patient was drug
13   seeking?
14         A.    From my notes I never referenced to
15   anything about drug seeking behavior on the part
16   of the patient, so I would say no.
17         Q.    Is it common to at least raise
18   within the differential drug seeking where a
19   patient's pain level does not respond to
20   appropriately administered medications?
21         A.    Can you rephrase the question?
22         Q.    Sure.  It seems like Mr. Zerbian was
23   given a number of medications to try to manage
24   the pain which was described at various levels,
25   and it didn't seem like the pain medication was
0030
 1   effective to the extent that perhaps you and
 2   those that were caring for him hoped it would
 3   be.  Is that a fair statement?
 4         A.    Well, everybody -- I mean, all the
 5   patients have different pain thresholds and
 6   different responses to pain medication, so not
 7   all patients have to respond in the same way to
 8   the same medications.  So I don't think I would
 9   agree with that statement.
10         Q.    Fair enough.  Suffice it to say, as
11   you look back at the record and look at this
12   patient from reconstructing this in your mind,
13   you're not going to take the stand and say this
14   patient was drug seeking?
15         A.    Probably not, I would say.  I mean,
16   his pain improved during the hospitalization,
17   and he wasn't requesting more and more
18   medications.  Actually we were able to cut down
19   the number of medications towards the end, so I
20   wouldn't rate him as a drug seeking patient.
21         Q.    If you had felt that his conduct was
22   inappropriate with regard to responding to the
23   various medications or perhaps either
24   malingering or providing responses to objective
25   tests that were not consistent, you would have
0031
 1   noted that his clinical findings are not
 2   consistent with his complaints or something to
 3   reflect that maybe there's a little bit of
 4   exaggeration to the patient's symptoms; is that
 5   a fair statement?
 6         A.    Yes.
 7         Q.    You didn't feel that was the case
 8   with Mr. Zerbian; did you?
 9         A.    Again, I don't remember the actual
10   admission, but looking at my records, I don't
11   think so.
12         Q.    Thank you.  Sometimes physicians
13   will make notes about a case for writing about a
14   case at a later point or because they have to
15   keep records of the number of patients that they
16   have treated.  Did you maintain any notes or
17   records concerning Mr.  Zerbian that weren't
18   part of the hospital record?
19         A.    No.
20         Q.    I want to talk now about your actual
21   involvement in the care of Mr. Zerbian.  Every
22   once in a while I may ask you a general question
23   about the medical subject matter, but most of my
24   questions are going to be pertaining to what
25   took place on different days and what was the
0032
 1   thought process that was going on; okay?
 2         A.    Okay.
 3         Q.    I'm segueing to let you know where
 4   I'm going in fairness to you because this is
 5   your first deposition.  So if I go back to
 6   something else, I'll tell you I'm taking a step
 7   backwards.  I don't want to confuse you; okay?
 8         A.    Okay.
 9         Q.    It appears that Mr. Zerbian would
10   have been admitted to the hospital on
11   September 5, 2005.
12         A.    Yes.
13         Q.    From your review of the records, did
14   you have any communication with the folks at
15   Geauga Regional Hospital at or around the time
16   that the transfer was being facilitated?
17         A.    No.
18         Q.    Did you know that Mr. Zerbian's wife
19   was an employee of University Hospitals?
20         A.    No.
21         Q.    What time of the day was Mr. Zerbian
22   admitted?  I'll throw in another question at the
23   same time.  When he was admitted, what floor or
24   department was he admitted to?
25         A.    He was admitted it looks like around
0033
 1   7:00 p.m., but I don't know if I can tell the
 2   floor that he came to.  I don't think I can tell
 3   the floor he came to.
 4         Q.    Fair enough.  During his
 5   hospitalization, did he remain in the same
 6   location of the hospital, or was he transferred
 7   to a different unit at any point in time?
 8         A.    It looks like he stayed at the same
 9   location because usually sometimes there's a
10   note if the patient is transferred to a
11   different room, but I don't see anything.  He
12   probably stayed at the same location.
13         Q.    Was this a general medical floor
14   that he was on as opposed to an intensive care
15   unit or a med-surg floor?
16         A.    This was a general medical floor.
17   It could be the fourth floor in Lerner Tower
18   based on T-4034 in some of the notes.
19         Q.    The initial history and physical,
20   I'm looking at there appears to be a second year
21   resident admission note and also a first year
22   resident admission note?
23         A.    Yes.
24         Q.    The first year resident admission
25   note would have been, was that Dr. Jump?
0034
 1         A.    The first year resident was
 2   Dr. Williams, and the second year resident was
 3   Dr. Jump.
 4         Q.    Would both of those doctors have
 5   rounded with you from time to time?
 6         A.    Yeah.  They usually -- we usually
 7   round on the next day from the admits, from the
 8   admissions from the previous day.
 9         Q.    Is it fair to assume from that that
10   you would not have seen Mr. Zerbian on
11   September 5?
12         A.    Yes.
13         Q.    The first time you would have seen
14   him would have been September 6th?
15         A.    September 6th.
16         Q.    Now, I have a note, and I'll again
17   sort of try to telegraph what I'm looking at if
18   you need to see it, but I have patient notes,
19   which it looks like they are transcribed patient
20   notes, with Dr. Erin Williams being the first
21   note on September 6th, 2005.  Do you have that?
22         A.    Yes.
23         Q.    In Dr. Williams' note there is a
24   notation on the cardiovascular that he had, he
25   being Mr. Zerbian, had some occasional premature
0035
 1   beats.  Do you see that?
 2         A.    Yes.
 3         Q.    At the time was that of any
 4   significance in your opinion?
 5         A.    No.
 6         Q.    Do you know what was causing the
 7   occasional premature beats?
 8         A.    Occasional premature beats are
 9   present in a lot of patients.  It depends on how
10   frequent they are, how many beats are occurring
11   in a row that you get concerned with.  The
12   occasional premature beat is not of any
13   significance.
14         Q.    Were you aware at any time during
15   the hospitalization that Mr. Zerbian had a
16   history of mitral valve prolapse?
17         A.    No.
18         Q.    Were you aware during the
19   hospitalization that Mr. Zerbian had a history
20   of redundant mitral leaflets?
21         A.    No.
22         Q.    Were you aware during the
23   hospitalization that Mr. Zerbian had documented
24   mild mitral regurgitation?
25         A.    No.
0036
 1         Q.    If you had been aware of a history
 2   of mitral valve prolapse, mitral leaflets, and
 3   mitral regurgitation, first, would the
 4   occasional premature beats documented by
 5   Dr. Williams on the first full day of admission,
 6   would that have taken on any greater
 7   significance?
 8         A.    Can you repeat again what you
 9   mentioned about the mitral valve?
10         Q.    Sure.  If you had been aware of
11   borderline mitral valve prolapse, redundant
12   mitral leaflets, and mild mitral regurgitation
13   documented on an echocardiogram, if you had been
14   aware of that information, would the
15   cardiovascular exam of occasional premature
16   beats on September 6th, 2005, have taken on any
17   greater significance in your mind?
18         A.    I don't think so.
19         Q.    Throughout the entire
20   hospitalization, you weren't aware of what I
21   just read to you; were you?
22         A.    It doesn't look like it.
23               MR. TREU:  The patient obviously
24   didn't offer it.
25               MR. MISHKIND:  I'm going to object
0037
 1   to that, whether the patient offered it or not.
 2               MR. TREU:  It's a two-way street.
 3               MR. MISHKIND:  It's part of the
 4   University Hospitals Health System record, and
 5   we'll ferret that out.
 6               MR. TREU:  Yes, we will.  Do you
 7   need to take a break?
 8               THE WITNESS:  Yes.
 9                   (Brief recess.)
10         Q.    On September 6th, 2005, Mr. Zerbian
11   was febrile; correct?
12         A.    Yes.
13         Q.    It looks like because of his
14   admission with the lumbar pain, one of the
15   things that was first up in terms of the
16   treatment was providing him with a steroid
17   injection?
18         A.    The first thing was ortho-spine
19   consult, and they did not feel any -- let me
20   look.  They did not feel there was any need for
21   surgical intervention, and they recommended a
22   pain consult.  So after the pain consult, then
23   they wanted to do the steroid injection.
24         Q.    Because his temperature was 38
25   degrees Centigrade, which is translated into
0038
 1   what I'm familiar with would be what?  Is it
 2   102?  How is your conversion, or do you need a
 3   chart?
 4         A.    I couldn't convert it for you.
 5         Q.    Can we agree that 38 is oftentimes
 6   considered that point where the patient has a
 7   temperature?
 8         A.    Yes.
 9         Q.    It's a clinically significant
10   temperature?
11         A.    38 is, yes.
12         Q.    Now, just to continue with the
13   timeline, you saw Mr. Zerbian for the first time
14   on September 6th at 11:45 a.m.?
15         A.    Yes.
16         Q.    You wrote the medical attending
17   note; true?
18         A.    Yes.
19         Q.    You had gone back and verified what
20   Dr. Williams had documented in her notes?
21         A.    Yes.
22         Q.    In your note it says in the second
23   paragraph briefly, Mr. Zerbian is a 56-year-old
24   white male transferred from Geauga for back pain
25   with disk bulge.  Does that say protrusion?
0039
 1         A.    Yes.
 2         Q.    Complaining of significant spasm.
 3   Otherwise not in significant pain per patient?
 4         A.    Yes.
 5         Q.    No neurological symptoms, bladder,
 6   bowel problems?
 7         A.    Yes.
 8         Q.    Did I do a pretty good job?
 9         A.    Yes.
10         Q.    Your handwriting is legible.
11   Otherwise, I would have butchered it.  Did you
12   have available any of the information from
13   Geauga Hospital when Mr. Zerbian was transferred
14   the previous day?
15         A.    We had a report of some scan.  It
16   looks like a CT scan.  We didn't have the MRI
17   films, but I'm not sure what else or records
18   from -- I think we had the chemistry and the CBC
19   from Geauga and probably the CT scans and the
20   X-rays.  I'm sorry.
21         Q.    I'm sorry.  I cut you off.
22         A.    That's it.
23         Q.    Thank you.  Did University Hospitals
24   in Cleveland have access systemwide to
25   information via computer from other hospitals
0040
 1   within the University Hospitals Health System?
 2         A.    When I joined initially, there was
 3   no way you could just access it on the computer
 4   system, so we had to request records from the
 5   other place.  But somewhere before I left the
 6   hospital, we were able to access from other
 7   hospitals towards the end.
 8               I'm not sure what the situation was
 9   in September, but I think the system where you
10   could access other related hospitals came much
11   later, probably early 2006.
12         Q.    Are you speculating as to that date?
13         A.    Yes.
14         Q.    You're just not clear whether or not
15   it was in existence or wasn't in existence when
16   Mr. Zerbian was a patient?
17         A.    Yes.
18                       - - - - -
19     (Thereupon, Plaintiff's Deposition Exhibit 2
20      was marked for purposes of identification.)
21                      - - - - -
22         Q.    I'm going to show you what I've
23   marked as Plaintiff's Exhibit 2.  This is the
24   echocardiogram report from June of 2005 that I
25   was referencing before.
0041
 1         A.    Okay.
 2               MR. MISHKIND:  You have a copy,
 3   Kris, don't you?
 4               MR. TREU:  Probably not with these
 5   records.
 6         Q.    The copy that I handed you as
 7   Exhibit 2, the top has University Hospitals
 8   Health System cut off.  I think it just says
 9   health system.  I have another copy that has
10   University Hospitals Health System on it.
11               You can see this is an
12   echocardiogram that had been ordered by
13   Dr. Goddard back in June of 2005 referencing the
14   mitral valve that I had referred to before;
15   correct?
16               MR. TREU:  It's down here
17   (indicating).
18         A.    Yes.
19         Q.    Is it fair to say that you're just
20   uncertain whether information such as a prior
21   echocardiogram from three months earlier would
22   have been available to you via computer from
23   Geauga Hospital to the main hospital downtown?
24   Is that correct?
25         A.    I'm unsure if we were able to access
0042
 1   Geauga records.  I think that system came into
 2   working somewhere in early 2006 again.  So I
 3   don't think we had it in September of 2005.  And
 4   even after we got the system in place, I'm
 5   unsure if echocardiogram reports were really
 6   accessible.  I don't think echo reports were
 7   accessible.
 8         Q.    On this report the referring
 9   physician is Dr. Goddard?
10         A.    Uh-huh, yes.
11         Q.    After this patient was discharged
12   from University Hospitals on September 16th,
13   Dr. Goddard was copied, as you said before.  As
14   a matter of courtesy as a hospitalist, he was
15   copied with information relative to your
16   treatment and the need for Mr. Zerbian to be
17   followed closely after he was discharged from
18   Heather Hill; correct?
19         A.    Yes.
20         Q.    On September 6th you were aware that
21   Mr. Zerbian had a temperature; correct?
22         A.    When I wrote my note, I don't think
23   he had a fever at that time.  The fever came
24   later on in the day.  I think he had a fever
25   that night.  So I was aware on the 7th that he
0043
 1   had a fever on the 6th.
 2         Q.    On the 6th blood cultures were
 3   obtained?
 4         A.    Obtained.
 5         Q.    One of the two blood cultures that
 6   were obtained on the 6th was positive; correct?
 7         A.    There were actually four bottles
 8   obtained, two sets.  Each set has an anaerobic
 9   and an aerobic bottle.  So of the four, one out
10   of four was positive for Strep.
11         Q.    This is from September 6th?
12         A.    It's from the September 6th.
13         Q.    Where in the chart would we find the
14   reference to the four?
15         A.    Four vials?
16         Q.    Yes.  Would it be in the lab
17   section?
18         A.    Yeah.  If it's there it should be in
19   the lab section.
20         Q.    Were you able to locate it?
21         A.    I was trying to see if there was any
22   reference to four sets.
23         Q.    As you're doing that, I'm looking at
24   the microbiology reports that show blood set one
25   from the right antecubital vein and blood set
0044
 1   two from the left antecubital vein.  Do you see
 2   other blood sets besides the two on
 3   September 6th?
 4         A.    Which page were you looking at?  I'm
 5   sorry.
 6         Q.    I'll hand them to you.  These were
 7   the actual.
 8         A.    Yes.  This is probably it.  But when
 9   it says blood set, it's usually a set of two
10   bottles together.
11         Q.    Do you see any record that reflects
12   that there were four?
13         A.    It's usually protocol.
14         Q.    Whether it's protocol or not, is
15   there anything that would reflect there were
16   four bottles?
17         A.    It says it's the aerobic vial which
18   has the Streptococcus.  So if they are
19   distinguishing it enough to say it was the
20   aerobic vial, I would think there was an
21   anaerobic vial, too.
22         Q.    The aerobic vial that was from blood
23   set two, that grew out Strep. viridans; correct?
24         A.    Yes.
25         Q.    It's my understanding that
0045
 1   Mr. Zerbian was started on was it Unisyn?
 2         A.    Yes.
 3         Q.    The Unisyn was continued until
 4   September 15th?
 5         A.    From my review I thought it was
 6   continued until the 12th, and it was stopped on
 7   the 12th.
 8         Q.    As I said the 15th, I sort of
 9   hesitated in my mind because I think there were
10   seven days he was on the Unisyn.
11         A.    I don't remember the exact date he
12   was started.  I thought he was started on the
13   7th, and then he was stopped on the 12th.
14         Q.    So it was actually six days.
15         A.    Yeah.  He was started on the 7th,
16   and he was stopped on the 12th in the morning.
17         Q.    Then there were additional blood
18   cultures that were done on the 12th; correct?
19         A.    Yes.
20         Q.    Do you know why additional blood
21   cultures were drawn on the 12th?
22         A.    If I'm correct, the result of the
23   initial blood cultures came back on the 12th.
24   So, yeah, the results came back on the 12th.  So
25   when we get positive blood cultures, then we try
0046
 1   to repeat it again to see if it's a persistent
 2   bacteremia or not.
 3         Q.    Can we agree that blood cultures
 4   that are taken after the initiation of
 5   antibiotic therapy can skew the results of
 6   subsequent blood cultures?
 7         A.    It depends on what kind of infection
 8   we are talking about and the clinical picture.
 9         Q.    In a patient such as Mr. Zerbian, I
10   presume that within the differential diagnosis
11   with fever, intractable pain, and positive blood
12   culture, diskitis and osteomyelitis had to be
13   within the differential?
14         A.    We were definitely concerned about
15   diskitis because there was some abnormal signal
16   in the disk spaces is why we were concerned, but
17   I don't see any reference to osteomyelitis as
18   such.
19         Q.    Diskitis is an infection, a systemic
20   infection, that gets into the intervertebral
21   disk space?
22         A.    It's definitely a local infection of
23   the intervertebral disk, but I can't say
24   necessarily it's a systemic infection localized.
25         Q.    Mr. Zerbian also had a gallium bone
0047
 1   scan?
 2         A.    A gallium scan, yes.
 3         Q.    The gallium scan, that was done on
 4   September 15th; correct?
 5         A.    I'll have to look.
 6         Q.    I'm sorry for jumping all around.
 7         A.    That's fine.  It was done
 8   September 15th, yes.
 9         Q.    Are you looking at the report that
10   was prepared by Jacqueline Howard?
11         A.    Yes.
12         Q.    Do you agree with the impression by
13   Dr. Howard where she indicates that she could
14   not completely exclude infection?
15         A.    Yes.
16         Q.    The history as of September 15th was
17   questionable infection in the spine; correct?
18         A.    Yes.
19         Q.    And diskitis would be the number one
20   form of infection that you had within your
21   differential as it relates to the spine?
22         A.    Well, you're asking about this
23   particular patient?
24         Q.    Yes.
25         A.    Can you state the question again?
0048
 1         Q.    Absolutely.  We know the patient
 2   came in with intractable pain.  We know he was
 3   treated with pain medication.  We know he had a
 4   temperature, and we know that he had a blood
 5   culture that showed Strep. viridans, and he had
 6   a gallium scan which was consistent with an
 7   infection; correct?
 8         A.    Yes.  Which could not rule out
 9   infection.  It was not convincing for infection.
10         Q.    Infection was still within the
11   differential; correct?
12         A.    Yes.
13         Q.    In terms of the types of infections
14   that would cause this patient's symptoms with
15   Strep. viridans being one of the blood culture
16   results, what type of spine infection did you
17   have within your differential?
18         A.    Diskitis would definitely have been
19   in the differential.
20         Q.    In your experience is Strep.
21   viridans a common bacteria that is seen in
22   patients that have diskitis?
23         A.    My experience with diskitis is very,
24   very limited.  It's usually taken care of by a
25   back specialist or infectious disease people, so
0049
 1   I cannot really answer that question.
 2         Q.    In terms of infectious endocarditis,
 3   have you had experience in treating patients
 4   that have infectious endocarditis?
 5         A.    I had limited experience with
 6   infectious endocarditis.
 7         Q.    More experience than you had with
 8   diskitis?
 9         A.    Again, University Hospitals had a
10   separate cardiology service, so if we had
11   suspicion for infectious endocarditis, they
12   would go to the cardiology service, and more of
13   the general medicine patients would come to the
14   Naff service which I was the attending on at the
15   time.
16               So probably a little more than
17   diskitis, but definitely limited again.
18         Q.    Jumping ahead to your knowledge now,
19   you're in adult cardiology and you probably have
20   more knowledge as it relates to infectious
21   endocarditis than you did back in September of
22   2005; is that a fair statement?
23         A.    It's hard to compare two years back.
24   Maybe I cannot.
25         Q.    Do you know how frequently Strep.
0050
 1   viridans is the bacteremia or the bacteria that
 2   is implicated in a patient who has a diagnosis
 3   of infectious endocarditis?
 4         A.    It's hard to give any kind of
 5   percentage, but Streptococcus and Staphylococcus
 6   are probably among the common organisms causing
 7   endocarditis.
 8         Q.    Mr. Zerbian was a diabetic; correct?
 9         A.    Yes.
10         Q.    Are diabetics at greater risk for
11   bloodstream infections than nondiabetics?
12         A.    Diabetics are in general at higher
13   risk for most infections.
14         Q.    Including bloodstream infections?
15         A.    I'm not very confident to comment
16   about bloodstream infections, but we see more
17   lower extremity infections, cellulitis, and skin
18   and soft tissue more than bloodstream.  But I
19   cannot say they are not at higher risk.  In
20   general they are more at a higher risk, but my
21   experience has been more with skin and soft
22   tissue infections.
23         Q.    That's fine.  I think what you're
24   telling me is that in terms of the frequency of
25   systemic or bloodstream infections and the
0051
 1   increase in diabetics, that's something that you
 2   would defer to perhaps someone that has a
 3   special interest in infectious disease?
 4         A.    Yes.
 5         Q.    If you could try to focus your
 6   knowledge base back to September of '05, and I
 7   know it might be difficult to do that, but do
 8   you know whether patients can develop
 9   endocarditis with negative blood cultures?
10         A.    There is a form of endocarditis I
11   think called culture negative endocarditis, and
12   those are caused by -- it's abbreviated as
13   HACEK, H-A-C-E-K.  I'm not sure about the full
14   form.
15               But some of those organisms can
16   cause endocarditis which is culture negative,
17   but it's supposedly a very small percentage.
18         Q.    In this case can we agree that on
19   one of the vials, one of the bottles, before
20   Mr. Zerbian was started on Unisyn that the
21   culture was positive for Strep. viridans?
22         A.    Yes.
23         Q.    Is there any evidence that you know
24   of that you can point to that would permit you
25   to say that that culture involving Strep.
0052
 1   viridans was a contaminant as opposed to a
 2   positive culture?
 3         A.    Evidence in terms of?
 4         Q.    Sometimes people say it's a
 5   contaminant; it was really a false positive.  Do
 6   you have any basis to say that that culture that
 7   we talked about from September 6th that grew
 8   Strep. viridans, that that was a false positive
 9   or a contaminant as opposed to --
10         A.    If you look back at the progress
11   notes, I think in some -- in one of my
12   colleague's notes, he curb sided infectious
13   disease, and he put down that the heart is
14   probably a contaminant.
15               But given his overall picture with
16   the inflammation markers and the fever and the
17   white cell count and this unclear gallium scan
18   and the Strep. viridans bacteremia, I was
19   definitely concerned which was why I got the
20   infectious diseases official consult.
21         Q.    So globally looking at this patient
22   from the first time you saw him on September 6th
23   at about 11:40 a.m. throughout the
24   hospitalization, you had within your mindset and
25   your concern that there was a distinct
0053
 1   possibility this patient had an infectious
 2   process that was explaining his symptom complex;
 3   is that a fair statement?
 4               MR. TREU:  Objection.  Go ahead.
 5         A.    I think that's an overstatement
 6   because his fever, his initial white cell count,
 7   and his increased inflammatory markers,
 8   everything could be just because of this
 9   excruciating back pain that he was having.  It
10   could be a stress response.
11               So I don't think I would be
12   convinced at that point saying that was all
13   infectious.  It was just when one of the blood
14   cultures grew Strep. viridans, definitely the
15   suspicion went up a little bit.  The scans were
16   again very unclear, so we couldn't rule out
17   infection, but I wouldn't say there was
18   convincing evidence of infection anywhere.
19         Q.    If I used the term convincing, maybe
20   I misstated it.  But during the hospitalization
21   you weren't able to associate his back pain to
22   purely an anatomical issue as opposed to an
23   infectious process; is that correct?
24         A.    Can you ask that question again?
25         Q.    Sure.  Not a problem.  With
0054
 1   everything that was going on, the intractable
 2   pain, certainly a herniated disk, nerve root
 3   irritation, things that are not related to
 4   infection could be causing his pain; correct?
 5         A.    Yes.
 6         Q.    Especially where he had the history
 7   of having been a gardener and the recent acute
 8   onset, that would explain his pain; true?
 9         A.    It could explain his pain,
10   definitely.
11         Q.    You also had other things that were
12   going on that were making the clinical analysis
13   a little bit more complicated because of the
14   temperature, the ESR, the C-reactive protein,
15   the white blood cell count, and the positive
16   blood culture as to whether or not this was some
17   type of bacteremia that had invaded the disk
18   space; correct?
19         A.    Well, I wouldn't say the bacteremia
20   invaded the disk space.  It's just, like I said
21   before, the C-reactive protein, the white cell
22   count, the fever, all could probably be
23   explained by the severe back pain and the disk
24   bulge that he was having and a stress response
25   to that.  But we didn't have a concrete answer
0055
 1   as to the Strep. bacteremia.
 2               And I agree that ID was curb sided
 3   before I came back on service, but when you curb
 4   side, they don't always get the whole
 5   information.  So I wanted them to come back and
 6   see the patient officially and make sure that we
 7   weren't missing any significant infection like
 8   diskitis.
 9         Q.    In terms of the treatment of a
10   patient who has a confirmed diagnosis of
11   diskitis, for a patient whose diskitis is
12   secondary to Strep. viridans, is Unisyn usually
13   a very -- is Strep. viridans usually sensitive
14   to Unisyn?
15         A.    I don't think I saw the
16   sensitivities on this particular Strep.
17   viridans, and every Strep. can kind of have
18   varying sensitivities.
19               And as far as treatment of diskitis
20   goes, again, my experience with diskitis is very
21   limited, so I usually get either ortho-spine or
22   infectious disease specialists whenever I
23   suspect something that complicated.
24         Q.    If you have a patient that has
25   diskitis that's confirmed, do you know how long
0056
 1   that patient is normally treated with
 2   antibiotics?
 3         A.    I don't know the answer to that, but
 4   again, usually they are followed by ortho-spine
 5   or neurosurgery and by infectious diseases
 6   because sometimes they might need surgical
 7   intervention, so depending on the disease
 8   course.
 9         Q.    This may be a question that's better
10   directed to Dr. Lisgaris who I'm sure I will be
11   talking with sooner or later.
12               MR. TREU:  Or maybe later than
13   sooner, who knows.
14               MR. MISHKIND:  Well, whatever.
15         Q.    Did University Hospitals of
16   Cleveland have an antibiotic protocol that was
17   followed if there was a positive blood culture
18   and there was a suspicion of either a diskitis
19   or other bacteremia that needed to be treated?
20         A.    Any particular antibiotic protocol?
21         Q.    Yes.
22         A.    I don't know the answer to that.
23         Q.    So if there was an infectious
24   process that needed to have IV antibiotic
25   treatment, the antibiotic regimen that would be
0057
 1   implemented would be something that you as a
 2   hospitalist would look to infectious disease
 3   to --
 4         A.    Guide us.
 5         Q.    -- guide you?
 6         A.    Yes.
 7         Q.    I'm going to go back to your
 8   progress notes.  You saw Mr. Zerbian on
 9   September 6th.  Were you the one that had
10   ordered the blood cultures?
11         A.    I think it was suggested by the
12   anesthesia-pain service, and it's usually the
13   cross-covering resident who is covering.
14   Usually every patient who has fevers gets blood
15   cultures and urine cultures.
16         Q.    When did you see Mr. Zerbian next?
17         A.    On the next day, on the 7th.
18         Q.    He was also seen by ortho-spine,
19   correct, on the 7th?
20         A.    Yes.
21         Q.    Under your impression on the 7th,
22   can you tell me what you were thinking based
23   upon your note?
24         A.    I think that was the day after --
25   yeah, he had a fever on the 6th, and this is on
0058
 1   the 7th, and my exam here says that abdomen was
 2   diffusely tender more in the right upper
 3   quadrant.  So my impression was that the patient
 4   is having spasms which are persistent.  He had
 5   fevers, an increased white cell count, an
 6   elevated CRP, so there was definitely a concern
 7   about the fever, the white cell count, and CRPs.
 8               So given the right upper quadrant
 9   pain, I wanted to make sure it's not any kind of
10   hepatobiliary process going on.  So we ordered
11   LFTs, liver function tests, and a CT scan of the
12   abdomen and pelvis.  By that time we already had
13   urine cultures growing Enterococcus, but in my
14   exam there's no paraspinal tenderness which is
15   where we make sure there is no abscess or
16   anything in the kidneys.
17         Q.    Did you say abscess?
18         A.    Abscess in the kidneys or any kind
19   of pyelonephritis or infection of the kidneys.
20   That's why I ordered the CT scan of the pelvis
21   and the liver function tests.
22               And given his fevers, white cell
23   count, and the CRP, I said start ceftriaxone
24   empirically, but I know that he was started on
25   Unisyn, and I just wanted the urine cultures to
0059
 1   be followed.
 2         Q.    Now, the urine cultures were
 3   positive for what bacteria?
 4         A.    Enterococcus.  Typically we treat
 5   urine infections only if the white cell count --
 6   sorry -- only if the number of bacteria is
 7   greater than 100,000.  He was less than 100,000,
 8   but we still treated because he was having the
 9   white cell count, the fevers, and the CRP, so
10   given the overall picture.
11         Q.    So the white cell count, the CRP,
12   the fevers were all consistent of infection?
13         A.    Can be suggestive of infection or
14   inflammation, yes.
15         Q.    Certainly as of the 7th you weren't
16   able to rule out infection?
17         A.    Yes.
18         Q.    Even though he was being treated
19   with Unisyn and now an additional antibiotic for
20   the possible urinary tract infection?
21         A.    No, no.  He was not on Unisyn at the
22   time, at the time I suggested starting
23   ceftriaxone, but he was started on Unisyn
24   instead.
25         Q.    Okay.
0060
 1         A.    So it's not an additional
 2   antibiotic.  It's just one antibiotic for the
 3   Enterococcus.
 4         Q.    On September 7th Dr. Williams noted
 5   again on her exam, the cardiovascular exam, that
 6   he had occasional premature beats, and I presume
 7   that even with the knowledge of his mitral valve
 8   prolapse and the mild mitral regurgitation from
 9   the echo of several months earlier that
10   cardiovascular finding would still be in your
11   opinion insignificant?
12         A.    I don't know if the resident updated
13   her note or not, so I don't know if it was
14   another note noticing an occasional premature
15   beat or not.  But an occasional premature beat
16   is not very significant.
17         Q.    When did you see Mr. Zerbian next?
18         A.    I would think on the 8th.
19         Q.    It looks like you have a handwritten
20   note at 2:15.
21         A.    Yes.
22         Q.    It looks like we're looking at the
23   same page.  You had a question response to
24   antibiotic.  Tell me what you meant by that?
25         A.    This day the patient mentioned that
0061
 1   his pain was significantly improved, and he
 2   ambulated to the bathroom without any assistance
 3   which he couldn't do until that day.  So this
 4   kind of happened on the day immediately after we
 5   started antibiotics.  So I was a little
 6   concerned that did he get better because we
 7   started antibiotics and are we really dealing
 8   with an infectious process.
 9         Q.    Again, you still weren't able to
10   rule in or rule out an infectious process at
11   that point?
12         A.    Yes.
13         Q.    Your plan was to continue him on the
14   Unisyn; correct?
15         A.    Yes.
16         Q.    It looks like on the 8th he was seen
17   by pain management?
18         A.    Yes.
19         Q.    And that would be Dr. Woods?
20         A.    It looks like Dr. Woods.
21         Q.    On the 9th it looks like ortho saw
22   him as well as physical therapy for an
23   evaluation?
24         A.    Yes.
25         Q.    Did you see him on the 9th?
0062
 1         A.    Yes.
 2         Q.    Tell me what his condition was on
 3   the 9th.
 4               MR. TREU:  It's all typed.  What do
 5   you want, Howard?
 6               MR. MISHKIND:  I'm sorry?
 7               MR. TREU:  It's all typed.  What do
 8   you want?
 9               MR. MISHKIND:  Actually it's not all
10   typed.
11         Q.    What was your assessment on the 9th?
12         A.    On the 9th his pain he said was
13   better to the interns.  The interns usually
14   round before I go in and round with the team
15   again.  But when we went with the team, he
16   complained of more pain again.  The CT of the
17   abdomen and pelvis and MRI were still pending,
18   so we were waiting for those.  So we didn't
19   really change the plan too much on that day.
20         Q.    Of what significance was his
21   positive D-dimer?
22         A.    I think the D-dimer, I'm not sure
23   why the D-dimer was checked.  It was not
24   explained.  But when a D-dimer is positive, we
25   cannot rule out -- well, the D-dimer can be
0063
 1   positive for a lot of different things, but
 2   usually we check D-dimers to rule out pulmonary
 3   embolism.  If it's negative it kind of excludes
 4   pulmonary embolism, and it being positive could
 5   not rule out the pulmonary embolism, so we had
 6   to rule it out some other way which was why he
 7   was getting a CT scan of the chest.
 8         Q.    Is it also not a fact that a patient
 9   that has a systemic infection can also manifest
10   that infection with a positive D-dimer?
11         A.    We don't usually check D-dimers for
12   infections because D-dimers can be affected by a
13   lot of different things.  But I don't remember
14   the exact number, but from what I remember his
15   level was just borderline positive, and usually
16   if it's really -- it's a very significant
17   infection, the levels are much higher.  I'd have
18   to double check.
19         Q.    Sure.  Take your time.
20         A.    Yeah.  He was just one to two which
21   is not very high.  We've seen much higher
22   levels.  So it's not -- it's not too high.  But,
23   again, for excluding a pulmonary embolism, we
24   want a totally negative one, so that couldn't
25   really exclude that.
0064
 1         Q.    I recognize that a positive D-dimer
 2   may cause concerns about an embolic event.
 3         A.    Yes.
 4         Q.    But a positive D-dimer can also be
 5   caused under certain circumstances by an
 6   infectious process?
 7               MR. TREU:  Objection.  She just
 8   answered that question.
 9         Q.    Is that correct?
10               MR. TREU:  She just answered that
11   question.
12               MR. MISHKIND:  I heard.  Go ahead.
13               MR. TREU:  You don't have to answer
14   it again.
15               MR. MISHKIND:  It wasn't the same
16   question, and don't instruct her not to answer
17   the question.
18               MR. TREU:  Howard, I've been very,
19   very patient, and we're not going to get into
20   asking the same questions over and over here
21   tonight; okay?  That's all I'm going to say.
22   I'll let her answer this one, but I'm just
23   cautioning you that we're not going to be
24   duplicative here.
25               MR. MISHKIND:  Well, let me just
0065
 1   comment because I have not been duplicative, and
 2   I resent that comment.  Also I resent the
 3   comment tonight because it's still this
 4   afternoon.  It might feel like it --
 5               MR. TREU:  It looks like tonight
 6   right now at the rate we're going.
 7               MR. MISHKIND:  That's in your mind,
 8   and I'm sorry for you having that reflection.
 9               MR. TREU:  I can think of three
10   questions right now that have been repeated in
11   this deposition.
12         A.    Can you repeat your question again?
13               MR. MISHKIND:  No, I can't, but
14   that's why we brought the court reporter along.
15                    (Record read.)
16               MR. TREU:  Her answer to it
17   previously was when it's very high.
18               MR. MISHKIND:  Don't testify for
19   her.
20               MR. TREU:  I'm not testifying.
21               MR. MISHKIND:  Yes, you are.
22               MR. TREU:  I'm telling you what she
23   already answered.
24               MR. MISHKIND:  I don't want to hear
25   it.  Stop coaching.
0066
 1               MR. TREU:  Let's go back and have
 2   her read it then.
 3               MR. MISHKIND:  No, no, no.  The
 4   question has been read back to the witness.  I
 5   would like the witness to answer the question.
 6         Q.    I'll make it real simple for you,
 7   Doctor, so you don't have to worry about these
 8   lawyer colloquies going on.  Can an infection
 9   cause a positive D-dimer?
10               MR. TREU:  Objection.  Asked and
11   answered.  You can answer it one more time,
12   Doctor.
13         A.    Usually we see positive D-dimer with
14   a lot of different conditions, and any kind of
15   trauma, surgery, infection, inflammation,
16   embolism, thrombosis, a million different things
17   can give rise to a positive D-dimer.  So we
18   don't really hold a D-dimer in any other
19   situation besides -- we don't check it in any
20   other situation besides a pulmonary embolism or
21   a DIC, a disseminated intravascular something.
22         Q.    Coagulation.
23         A.    Coagulation.  So it's a very extreme
24   form of infection.
25         Q.    Thank you.  When did you see
0067
 1   Mr. Zerbian next?
 2         A.    I saw him again on the 14th.
 3         Q.    Were you off service between the --
 4         A.    We usually kind of rotate between a
 5   team of hospitalists, so it was probably a
 6   weekend, or I don't know why.  Usually we just
 7   switch for two days, but for some reason we
 8   switched for four days, and I have no clue as to
 9   why we did that.
10         Q.    Who was the hospitalist covering for
11   you?
12         A.    Dr. Mike Beck.
13         Q.    Remember that question I asked early
14   on in the deposition about conversations with
15   any of the caregivers?  I asked you about
16   Dr. Pawlicki and Dr. Goddard and Dr. Lisgaris.
17   Dr. Beck, have you discussed any aspect of this
18   case with him?
19         A.    After the lawsuit?
20         Q.    Yes.
21         A.    No.
22         Q.    Do you have an independent
23   recollection when you came back on service
24   discussing with Dr. Beck what had transpired
25   with Mr. Zerbian?
0068
 1         A.    We usually have a sign-out, kind of
 2   sign-out to each other, like when I go off
 3   service to him and when he goes off service to
 4   me, but I don't recollect anything specific.
 5         Q.    You saw Mr. Zerbian then on the 14th
 6   you said?
 7         A.    Yes.
 8         Q.    Was that the date that the gallium
 9   scan was performed or scheduled?  I'm sorry.
10   I'm looking at it was scheduled for the 15th.
11         A.    The 15th, yes.
12         Q.    Were you the one that requested the
13   gallium scan, or was that a different service?
14         A.    I think Dr. Beck wanted a WBC scan,
15   and then radiology suggested a gallium scan, so
16   it was our team.
17         Q.    Was diskitis still within the
18   differential at this point?
19         A.    Yes.
20         Q.    Now, as of the 14th, Mr. Zerbian was
21   no longer on Unisyn; correct?
22         A.    Yes.
23         Q.    Do you know why he was no longer on
24   Unisyn if diskitis was still within the
25   differential?
0069
 1         A.    It was still in the differential,
 2   but it was not convincing for diskitis.  If you
 3   see Dr. Beck's note from the 12th, it says curb
 4   sided ID, appreciate ID recommendations, can DC
 5   antibiotics --
 6         Q.    Doctor, slow down just a little bit.
 7         A.    If you look at Dr. Beck's note from
 8   the 12th, he says appreciate ID recommendations,
 9   can discontinue antibiotics, recheck --
10   reculture with fevers, and repeat CRP and sed
11   rate.
12               So I would think he probably curb
13   sided infectious disease about the patient at
14   this point, and I think his note from the 13th
15   is questionable contaminated blood.  So the idea
16   was to stop antibiotics and see how he does.  If
17   it was really an infection as significant as
18   diskitis, a five-day course of antibiotics
19   wouldn't take care of it, the patient would have
20   fevers again, white cell counts and CRPs again,
21   and then culture again and see if it was growing
22   any kind of organism again.
23         Q.    The patient was discharged on the
24   16th to Heather Hill; correct?
25         A.    Yes.
0070
 1         Q.    He was discharged without any
 2   antibiotics; correct?
 3         A.    Yes.
 4         Q.    Did you request the formal consult
 5   by Dr. Lisgaris?
 6         A.    Yes.
 7         Q.    I believe that would have been
 8   requested on the 15th?
 9         A.    Yes.
10         Q.    Tell me why you requested the formal
11   consult.
12         A.    When I came back on the 14th, I
13   noticed the trend that his CRP was still
14   decreasing off of antibiotics, without any
15   antibiotics, and the repeat cultures were
16   negative, so no evidence of any infection at
17   this point, but then the gallium scan was very
18   unclear.  They couldn't rule out infection.
19   They couldn't confirm anything.
20               Given the overall picture of having
21   had back pain and increased CRP and he had
22   fevers, I felt a formal ID consult was needed in
23   this situation.
24         Q.    In your mind then you weren't able
25   to rule out infection even though the markers
0071
 1   had decreased, correct, based upon the gallium
 2   scan?
 3         A.    Well, everything -- yeah, I would
 4   think so.  Everything was going in the right
 5   direction, but the gallium scan was not able to
 6   give any kind of confirmation, so I wanted to
 7   make sure that we were not missing a significant
 8   infection like diskitis.
 9         Q.    Now I'm looking on September 15, the
10   ID attending's handwritten note.
11         A.    Yes.
12         Q.    At the very bottom it says addendum
13   dictation.  Do you see that?
14         A.    Yes.
15         Q.    Do you know where that addendum is?
16         A.    We couldn't locate it.  But if you
17   look at the original discharge summary, the last
18   page, under Erin Williams' and my name there's
19   the dictation quotes.  It says 423923 plus
20   425070.  425070 was the infectious diseases, the
21   dictation number which they noted.
22               So I'm not sure, again, I'm
23   speculating, but they could have probably asked
24   all the information to be put in our discharge
25   summary because all the follow-up information
0072
 1   including the phone numbers and the fax numbers
 2   were Dr. Lisgaris' and all the instructions
 3   about weekly CRPs and CBCs were noted in the
 4   discharge summary in the last paragraph.
 5               MR. TREU:  Can we go off the record
 6   for a minute?
 7             (Discussion off the record.)
 8         Q.    Just to clarify the question that I
 9   had, where it says addendum note dictated, other
10   than what you've said in terms of identifying
11   Dr. Lisgaris' number, there's nothing that
12   you've seen in terms of looking through the
13   record where there was actually an addendum
14   dictated by Dr. Lisgaris; correct?
15         A.    Yes.
16         Q.    Now, your discharge summary that you
17   have, I can read it.
18         A.    Yes.
19         Q.    So I won't have you read it or run
20   the risk of your attorney yelling at me, but I
21   do have a couple of questions relative to it.
22   The gold form that is referenced?
23         A.    Yes.
24         Q.    That would be a document that would
25   provide instructions to the nursing home as to
0073
 1   what tests need to be done and what treatment
 2   needs to be followed on the patient?
 3         A.    Yes.
 4         Q.    The gold form is sort of that
 5   continuity of care when a patient is discharged
 6   from a hospital and is being sent to a subacute
 7   or a rehab?
 8         A.    Yeah.  I don't know if you have this
 9   in your notes, but this is the gold form where
10   it lists -- it kind of tries to give a little
11   summary about the hospital, but it's mainly
12   about the instructions for the nursing home in
13   terms of medications and what treatments need to
14   be done and what lab work needs to be done.
15               MR. TREU:  Doctor, wait for a
16   question; okay?
17         Q.    It's okay, Doctor.  This is a search
18   for the truth, so go ahead.  This is the gold
19   form that you just handed to me --
20               MR. TREU:  Well, there just wasn't a
21   question pending was my point.  I'm not trying
22   to get in the way or anything, but let's just do
23   this properly.
24               MR. MISHKIND:  Okay.
25               MR. TREU:  There's no reason to
0074
 1   laugh.
 2               MR. MISHKIND:  There is.
 3               MR. TREU:  Why?
 4               MR. MISHKIND:  Why?
 5               MR. TREU:  Yeah.
 6               MR. MISHKIND:  Because I'm asking
 7   the doctor a question.
 8               MR. TREU:  There was no pending
 9   question.
10               MR. MISHKIND:  She was answering
11   something, and you cut her off in the middle of
12   answering.
13               MR. TREU:  No.
14               MR. MISHKIND:  Come on, Kris, stop
15   it.  Quit playing games.
16               MR. TREU:  I'm not playing games.
17   All I'm asking her to do is to wait for a
18   question which is the proper thing to do.
19               MR. MISHKIND:  I'm not going to get
20   into it.
21               MR. TREU:  Good.
22         Q.    The gold form, the gold referral
23   form which is in your set of records, what I'd
24   like to do is it's actually seven pages in
25   total, and perhaps what we can do at the end is
0075
 1   just make a photocopy of this and mark it as
 2   Exhibit 3.
 3               MR. MISHKIND:  We don't have to do
 4   it now.
 5               MR. TREU:  We might have to.
 6               MR. MISHKIND:  That's okay.  You can
 7   make a photocopy and send it to me.
 8               MR. TREU:  That's fine.
 9         Q.    I don't see in here that the gold
10   referral form was signed by any physicians.  Do
11   you know why that is?
12         A.    This is probably a copy of
13   something.  I don't know.
14               MR. TREU:  A print date at the top
15   indicates that.
16         Q.    What is the print date?
17         A.    May 24th, 2007.
18         Q.    Do you know whether the original
19   gold form was signed by a physician?
20         A.    It's usually taken care of by the
21   residents.  I don't know that.
22         Q.    Is it important for the continuity
23   of care that the gold form that has all of the
24   instructions in terms of the treatment that the
25   patient is to receive upon discharge, that the
0076
 1   gold form be appropriately transmitted to the
 2   subacute or nursing home that the patient is
 3   being discharged to?
 4         A.    My understanding is the nursing home
 5   won't even take the patient unless they have a
 6   proper gold form which I would think includes
 7   the signature.
 8         Q.    You haven't seen the Heather Hill
 9   records; have you?
10         A.    No.
11         Q.    So you don't know whether or not the
12   gold form was properly filled out and
13   transmitted with this patient; do you?
14         A.    I haven't seen Heather Hill's
15   records, no.
16         Q.    Do you know what the term
17   fenestration means, F-E-N-E-S-T-R-A-T-I-O-N?
18         A.    Can you give me the context?
19         Q.    Sure.  I'm looking at the echo that
20   was done at University Hospitals when
21   Mr. Zerbian was --
22               MR. TREU:  This one (indicating)?
23               MR. MISHKIND:  No.
24         Q.    When he was readmitted to the
25   hospital in January, the mitral valve, it says
0077
 1   moderate to severe mitral valvular regurgitation
 2   originating at the site of the vegetation which
 3   suggests a fenestration.  Do you know what that
 4   term means?
 5         A.    No.
 6         Q.    Do you have an opinion, and you
 7   either do or you don't, whether Mr. Zerbian
 8   would have avoided the development of bacterial
 9   endocarditis if he had been treated with IV
10   antibiotics for four to six weeks once the
11   suspicion of diskitis was entertained at
12   University Hospitals back in September?
13         A.    Can you repeat the question?
14         Q.    Sure.  Hypothetically if Mr. Zerbian
15   had been given four to six weeks of Unisyn by IV
16   at the time that he was at University Hospitals
17   to treat diskitis, do you have an opinion as to
18   whether or not the IV antibiotic of Unisyn would
19   have prevented bacterial endocarditis in this
20   case?
21               MR. TREU:  Objection.  Go ahead.
22         A.    I don't think there was any evidence
23   of diskitis in this admission.  There was just
24   suspicion, and we tried to evaluate that
25   suspicion as much as we could, and we stopped
0078
 1   antibiotics, tried to check his CRPs and other
 2   inflammatory markers off antibiotics.  He was
 3   supposed to keep getting them weekly to see the
 4   trend.
 5               If there was really an infection
 6   like diskitis, his inflammatory markers would
 7   have gone up.  I don't know what happened after
 8   discharge, but I would think if there was really
 9   an infection, his inflammatory markers would
10   have gone up, and I would think the results
11   would have been sent to Dr. Lisgaris, and she
12   would have picked up on it and treated it at
13   that point.
14               At the time he was in the hospital,
15   he was off antibiotics for four days, and all
16   his markers were still trending down, and there
17   was no suggestion of any infection like diskitis
18   at that point.
19         Q.    I appreciate your answer, but that
20   wasn't responsive directly to my question, so
21   I'm going to restate the question.  If
22   hypothetically Mr. Zerbian had been continued on
23   Unisyn rather than just having a six-day dose of
24   Unisyn, if he had been continued on Unisyn for
25   four to six weeks, do you know or do you have an
0079
 1   opinion as to whether Unisyn continued for a
 2   four- to six-week period, whether that would
 3   have prevented Mr. Zerbian from having the
 4   bacterial endocarditis that was ultimately
 5   diagnosed in January of 2006?
 6               MR. TREU:  Objection.  Go ahead.
 7         A.    I don't see any reason why
 8   Mr. Zerbian should have been on antibiotics for
 9   four weeks when you don't have anything to kind
10   of confirm or suggest an infection.
11         Q.    Again, I want you to assume
12   hypothetically that there was reason to have him
13   on --
14         A.    Well, hypothetically if the patient
15   had diskitis, then he would have been treated
16   for the diskitis, not for a bacteremia.  But he
17   did not have diskitis, so he did not -- he did
18   not require the treatment of four weeks of
19   antibiotics.  That's what the infectious
20   diseases consult was for.
21         Q.    Doctor, listen to my question
22   because we're not communicating.  If this
23   patient had been continued on Unisyn for four to
24   six weeks, I understand your opinion as to
25   whether or not he did or did not have diskitis
0080
 1   at the time that he was discharged.  You
 2   couldn't rule it out; correct?
 3               MR. TREU:  Objection.
 4         Q.    You couldn't rule out diskitis?
 5               MR. TREU:  Objection.
 6         A.    We couldn't exclude it completely
 7   based on the gallium scan and the information we
 8   had, but if he did have diskitis, we would have
 9   seen his markers go up off antibiotics, and the
10   trend of going up would have happened either in
11   the hospital or after discharge, soon after.
12         Q.    But you didn't see him after
13   discharge?
14         A.    No.  But he had appropriate
15   follow-up arranged in the rehab to get weekly
16   CRPs and sed rates and to call Dr. Lisgaris with
17   the results as well as if the patient had any
18   fever.
19         Q.    Do you know whether he had CRPs,
20   whether he had his sed rate checked, whether he
21   had the tests that Dr. Lisgaris had referenced
22   at the time of discharge he was supposed to
23   have?  Do you know that for a fact?
24         A.    I don't know for a fact because my
25   care ends with the hospital.
0081
 1         Q.    I understand that.  Don't get ahead
 2   of my question.  You don't know what transpired
 3   at Heather Hill; true?
 4         A.    Yes.
 5         Q.    What I'm asking you is -- and this
 6   hypothetical may not be supported by the facts.
 7   A hypothetical is asking you to assume something
 8   that may or may not be proven.
 9               But if there was reason to treat
10   this patient for diskitis -- I can tell you want
11   to start answering, but you've got to wait -- if
12   there was reason, and I understand that you
13   believe that there wasn't reason, but if there
14   was reason to treat the patient for diskitis
15   with Unisyn for a period of four to six weeks,
16   do you know or do you have an opinion as to
17   whether treatment hypothetically for diskitis
18   would have prevented this patient from
19   developing infectious endocarditis?
20         A.    I'll again say that I'm not
21   convinced that there was diskitis at this point,
22   so I don't see any relationship to what he had
23   at this time to what he had later on.  If he
24   really did have any kind of infection brewing,
25   then he would have definitely shown it in his
0082
 1   markers which, again, I don't know if they were
 2   checked or not, but I can tell they were
 3   supposed to be checked based on the discharge
 4   summary and the information provided to the
 5   rehab facility and the patient.
 6               So if he did have some kind of an
 7   infection, it would have been shown at that
 8   point.  If he did not have any infection at that
 9   point, I don't see any relationship to suggest
10   that this infection was in any way related to
11   the endocarditis that he developed later on.
12         Q.    I'm going to try one more time
13   because you're not answering my question.  I'm
14   not trying to be difficult, and I know you're
15   not trying to be difficult.  You don't know what
16   if anything was done at Heather Hill, true, in
17   terms of follow-up?
18         A.    Yes.
19         Q.    We know that the discharge
20   instructions, the discharge summary that you
21   dictated, was sent to Dr. Pawlicki, Dr. Goddard,
22   and Dr. O'Hara?
23         A.    Yes.
24         Q.    Are you aware of the fact that
25   Dr. Goddard saw this patient after he was
0083
 1   discharged from Heather Hill?
 2         A.    No.
 3         Q.    If he was seen by Dr. Goddard after
 4   he was discharged from Heather Hill, is it
 5   reasonable to conclude that Dr. Goddard would
 6   have had your discharge summary?
 7         A.    Yes.
 8         Q.    Is it also reasonable to conclude
 9   that Dr. Goddard who followed this patient after
10   Heather Hill would have been aware of what, if
11   anything, was done for this patient at Heather
12   Hill?
13               MR. TREU:  Objection.  If you know.
14         A.    Yeah, I would think so, but I don't
15   know.  I hope Heather Hill communicated.
16         Q.    I'm sorry?
17         A.    I hope Heather Hill communicated,
18   but I don't have any interaction with Heather
19   Hill, so I don't know how they do it there.
20         Q.    Other than the gold form, the seven
21   pages that we're going to mark as an exhibit,
22   were there any written discharge orders for
23   weekly ESR, CRP, and complete blood counts?
24         A.    That's all instructed in the gold
25   form itself.
0084
 1         Q.    That would be the only discharge
 2   order that would exist.  There wouldn't be a
 3   separate discharge order separate and apart from
 4   the gold form?
 5         A.    Going with the patient to Heather
 6   Hill?
 7         Q.    Yes.
 8         A.    I don't think so.  I'm not
 9   100 percent on that.
10         Q.    Fair enough.  If you felt it
11   indicated during the hospitalization, could you
12   have ordered an echocardiogram?
13         A.    If indicated, yes.
14         Q.    You didn't order one; did you?
15         A.    No.
16         Q.    If you had been aware of the
17   previous echocardiogram from two-and-a-half or
18   three months earlier showing mitral valve
19   prolapse, redundant mitral leaflets, and mild
20   mitral regurgitation, would you have ordered an
21   echocardiogram during that hospitalization?
22               MR. TREU:  Objection.
23         A.    I don't think there was anything in
24   this hospitalization to suggest anything like
25   endocarditis, so no.  It's been repeatedly
0085
 1   documented by multiple physicians that there was
 2   no murmur auscultated or anything, so no.
 3         Q.    So you wouldn't have ordered an
 4   echocardiogram; correct?
 5         A.    Yes.
 6         Q.    Now, again, you've not studied the
 7   Heather Hill records or the ultimate diagnosis
 8   of the bacterial endocarditis, but do you have
 9   an opinion in this case as to when Mr. Zerbian
10   developed infective endocarditis?
11         A.    I don't know anything about the
12   patient after he left my care, so I cannot
13   answer that question.
14         Q.    Do you know what a torn chordae
15   tendineae is?
16         A.    Yes.
17         Q.    What is that?
18         A.    It's part of the mitral valve
19   structure which attaches the mitral leaflet to
20   the ventricular wall.
21         Q.    Does a torn chordae tendineae cause
22   mitral regurgitation?
23         A.    Yes.
24         Q.    There is reference to a flail
25   anterior mitral leaflet.  Do you know what a
0086
 1   flail anterior mitral leaflet is?
 2         A.    No.  Can I take a break?
 3         Q.    Sure.  We're almost done, but take a
 4   break anyway.
 5                   (Brief recess.)
 6         Q.    There is a record that I'm looking
 7   at.  It's called inpatient abstract summary
 8   (indicating).
 9         A.    You're on the first page?
10         Q.    No.
11         A.    Yeah.  I've got it.
12         Q.    Correct me if I'm wrong, but it
13   appears as if this is a document that summarizes
14   the various diagnoses at the time that the
15   patient was transferred to the acute care
16   hospital.
17         A.    This I don't think is communicated
18   to the acute care hospital.  This is I think
19   something the hospital uses for billing purposes
20   or something.
21         Q.    Sure.  I wasn't suggesting this was
22   communicated to the acute care center.
23         A.    Okay.
24         Q.    My question was, it appears as if
25   this has the various diagnoses that had been
0087
 1   entertained while the patient was in the
 2   hospital, and this document was prepared at or
 3   around the time the patient was transferred from
 4   University Hospitals to the acute care hospital.
 5   Does that appear to be accurate?
 6         A.    Yeah.  It probably was done around
 7   the 22nd it looks like, but yeah.
 8         Q.    In the diagnoses, the very bottom
 9   one, it has got 04100 and then it says
10   infection, Strep.  Can you read what that says?
11         A.    Infection, Streptococci NOS.
12         Q.    NOS stands for what?
13         A.    I think it's not otherwise specified
14   or something.
15         Q.    The patient also had a diagnosis of
16   thrush?
17         A.    Thrush, yes.
18         Q.    Do you recall that from the notes?
19         A.    From the notes.
20         Q.    What caused the thrush?
21         A.    A lot of people with diabetes can
22   have thrush because of the diabetes, and he also
23   was on some steroids for some time because of
24   the back pain, and that can give rise to thrush,
25   too.
0088
 1         Q.    Do you have an opinion in this case
 2   as to what most likely was the cause of the
 3   thrush?
 4         A.    It could have been either one or
 5   both.  It's hard to tell.
 6         Q.    On September 15th there is a note by
 7   Dr. Nassir, N-A-S-S-I-R.  Who is Dr. Nassir?
 8         A.    He's the infectious diseases fellow.
 9         Q.    I think earlier we were talking
10   about the issue of contaminant.
11         A.    Yes.
12         Q.    Was he the one that you were
13   referencing that had brought up the issue of
14   contaminant?
15         A.    It was my partner, Mike Beck, who
16   curb sided infectious diseases, and I don't know
17   whom he talked to.
18         Q.    Is Dr. Nassir to your knowledge
19   still at University Hospitals?
20         A.    I don't know.
21         Q.    You would have been privy to
22   Dr. Nassir's note, handwritten note, that was
23   written on the 15th at the time the patient was
24   discharged on the 16th; correct?
25         A.    Yes.
0089
 1         Q.    That note written by Dr. Nassir
 2   shows, to know for sure needs L5 aspiration.  Do
 3   you see that?
 4         A.    Yes.
 5         Q.    To know for sure what?
 6         A.    To know for sure if it's infection
 7   of the L5 vertebra, I would think.
 8         Q.    On the next line it looks like one
 9   over four?
10         A.    Yes, it is.
11         Q.    Are you able to decipher what the
12   rest of that says?
13         A.    One out of four bacteremia with
14   Strep. viridans.  One out of four vials grew
15   Strep. viridans.
16         Q.    Now, in actuality in terms of one
17   out of four vials, to accurately state that can
18   we agree that one out of two prior to starting
19   Unisyn had Strep. viridans, and then the two
20   that were drawn on September 12th after
21   Mr. Zerbian had been on Unisyn, both of them
22   were negative?
23         A.    I think he's referencing to four
24   vials drawn on the 6th.  If you look on the same
25   page, 9-6, I think it grew one out of four
0090
 1   Strep. viridans.  So he's looking at the four
 2   vials that were drawn on the 6th, on the same
 3   day.
 4         Q.    Then he has a question mark, could
 5   be -- does that say could be contaminant?
 6         A.    Yes.
 7         Q.    Can you help me out with what it
 8   says?
 9         A.    After that?
10         Q.    Yes.
11         A.    I personally think that increased
12   ESR and CRP is because of sudden onset
13   herniation and inflammation.  Will staff with
14   Dr. Lisgaris this p.m.  Needs very close
15   follow-up CRP and ESR.
16         Q.    When he says will staff, does that
17   mean he will discuss with Dr. Lisgaris?
18         A.    Yes, and Dr. Lisgaris is his
19   attending.
20         Q.    Did you see Mr. Zerbian on the date
21   of his discharge?
22         A.    I don't see a note from the 16th, so
23   usually if I see them, I write a note, and
24   either the note is missing or I haven't seen
25   him, but usually I see all the patients.
0091
 1         Q.    Now, there is a note on the 16th,
 2   NSG note?
 3         A.    That's a nursing note.
 4         Q.    Would it be normal practice that
 5   either you or one of the other hospitalists
 6   would have seen the patient on the 16th prior to
 7   discharge?
 8         A.    Yes.
 9         Q.    Again, looking through the records,
10   I couldn't find a note for the 16th from you or
11   from anybody that might have been covering for
12   you.
13         A.    Yeah.  Neither could I.
14         Q.    You have no explanation for why
15   there isn't a note?
16         A.    No.
17         Q.    You certainly can't say as you sit
18   here right now that you saw Mr. Zerbian; can
19   you?
20         A.    No.
21         Q.    We're now at the point where I want
22   to just sort of do some housekeeping, and then
23   we're going to be done in probably five minutes
24   or less.
25         A.    Okay.
0092
 1         Q.    First let me thank you for putting
 2   up with me.  You're okay with that?
 3         A.    Yes.
 4         Q.    Have I been fair to you?
 5         A.    Yes.
 6         Q.    As you have looked at the notes,
 7   we've gone through the various dates that you
 8   were involved; correct?
 9         A.    Yes.
10         Q.    You've indicated to me some of your
11   feelings as to why the patient didn't in your
12   opinion need to be continued on Unisyn; correct?
13         A.    Yes.
14         Q.    We know that you may or may not have
15   seen Mr. Zerbian on the date of his discharge;
16   correct?
17         A.    Yes.
18         Q.    Whether someone else, one of the
19   other hospitalists, whether or not he was seen
20   by anyone else, if it wasn't you, you don't know
21   that; correct?
22         A.    Yes.
23         Q.    We know that it was important that
24   Mr. Zerbian be followed very carefully for any
25   signs of infection when he was discharged from
0093
 1   University Hospitals and transferred to Heather
 2   Hill; correct?
 3         A.    Yes.
 4         Q.    We also know from what you told me
 5   and educated me on today that Dr. Lisgaris also
 6   wanted to make sure that this patient was
 7   followed closely for any signs of infection;
 8   correct?
 9         A.    Yes.  I mean, there was a suspicion
10   for infection, but it couldn't be excluded
11   completely, and he didn't want to miss an
12   infection.  So, yes, he was supposed to get the
13   weekly blood work and be followed for that.
14         Q.    The reason it couldn't be excluded
15   was because of the gallium scan, in principal
16   the gallium scan; correct?
17         A.    Yes.
18         Q.    I presume that you knew as a
19   hospitalist that if this patient did have a disk
20   space infection that for some reason hadn't
21   resolved by the time he was discharged from
22   University Hospitals, that if it wasn't properly
23   followed after he left University Hospitals that
24   the infection could potentially become very
25   serious?
0094
 1               MR. TREU:  Objection.
 2         A.    It's hard to tell how everybody
 3   responds to, you know, different infections, but
 4   definitely the concern of infection in the spine
 5   was there and the diskitis in the disk space was
 6   there which was why the infectious disease
 7   consult was obtained and why I think they wanted
 8   the close follow-up.
 9         Q.    So you knew that there was the
10   possibility that the patient may have an
11   infection that was subclinical at the point of
12   discharge but without appropriate follow-up and
13   appropriate treatment could reappear and become
14   very serious?
15               MR. TREU:  Objection.
16         Q.    Correct?
17               MR. TREU:  Objection.
18         A.    I don't think we knew there was any
19   subclinical infection, but we just couldn't
20   exclude any subclinical infection for sure, and
21   that's why we wanted the close follow-up.
22         Q.    When you have fever and you have
23   back pain in a patient, when you're considering
24   diskitis, are you also considering some type of
25   potential abscess?
0095
 1         A.    An abscess could cause back pain and
 2   fever and white cell count, too, but an abscess
 3   would be much more easily and quickly visualized
 4   on an MRI, and it was not seen on the MRI.
 5         Q.    In terms of the clinical
 6   decision-making, have you delineated and
 7   carefully explained to me why you did what you
 8   did during the course of this hospitalization?
 9               MR. TREU:  Objection.  Go ahead and
10   answer.
11         A.    I think I did.  He had a concerning
12   picture definitely with his back pain and disk
13   bulge which could explain a lot of things, and
14   the bacteremia was still there and the scans
15   were unclear.  So it was not convincing for
16   infection, but infection could not be excluded
17   which is why I got an infectious disease consult
18   who definitely had a lot more experience in this
19   than me, and they were the experts.
20               So they were comfortable enough to
21   say that the patient was stable enough for
22   discharge and with the appropriate follow-up of
23   weekly CBCs and CRPs and other markers, and they
24   provided all the pertinent information for
25   follow-up, and the patient was instructed to
0096
 1   follow up with this blood work with Dr. Lisgaris
 2   and with his primary care physician.  So I think
 3   I provided enough explanation for my thought
 4   process.
 5         Q.    As to what, if anything,
 6   Dr. Lisgaris did in terms of follow-up, whether
 7   or not the patient contacted Dr. Lisgaris or
 8   not, you don't know that; do you?
 9         A.    I don't know that.
10         Q.    In terms of follow-up, what
11   follow-up, if any, the primary care physician
12   did for this patient, you don't know that,
13   either; do you?
14         A.    No.  My care ends with the hospital
15   stay.
16               MR. MISHKIND:  Very good, Doctor.
17   Thank you very much.  Good luck to you.
18               MR. TREU:  We'll read.
19               MR. MISHKIND:  We are back on the
20   record.  In attempting to identify what was
21   going to be marked as Exhibit 3 which was seven
22   pages of a gold form, it became apparent that
23   the document we've been looking at may or may
24   not have been the gold form from the September
25   '05 admission because there's reference to the
0097
 1   mitral valve surgery, so it may have been
 2   related to the January admission.
 3               This is an issue that still needs to
 4   be clarified.  At least in the copy of the
 5   records that I have, there was no gold form that
 6   was provided, and what we'll need to do by
 7   agreement is sort of ferret this out and
 8   determine whether the seven pages that we'll go
 9   ahead and mark as an exhibit, whether or not
10   that is a compilation of gold forms or whether
11   there was not in fact a gold form back in
12   September.
13               MR. TREU:  Well, let me just respond
14   to that that there is information from the
15   earlier, from the September admission on here,
16   but there's also information from the '06
17   admission, so it at least to my viewing appears
18   to be a compilation.
19               THE WITNESS:  No.
20               MR. TREU:  That's some history.
21               THE WITNESS:  Yeah.  That's some
22   history.
23               MR. TREU:  This appears to be the
24   gold form for the subsequent.
25               THE WITNESS:  Yeah, that's probably
0098
 1   a combination.
 2               MR. TREU:  I am going to look for
 3   the gold form from the September admission.
 4               MR. MISHKIND:  What I'd ask to do,
 5   Kris, if we could is let's go ahead and mark
 6   this seven-page document as Exhibit 3 with the
 7   recognition that we may need to tear it apart or
 8   decipher whether there was one or whether this
 9   is a compilation.
10               MR. TREU:  I'm okay with that.  I
11   don't know if you want to say anything else.
12               MR. MISHKIND:  I don't think so.
13                       - - - - -
14     (Thereupon, Plaintiff's Deposition Exhibit 3
15      was marked for purposes of identification.)
16                      - - - - -
17          (Deposition concluded at 5:50 p.m.)
18                (Signature not waived.)
19                       - - - - -
20   
21   
22   
23   
24   
25   
0099
 1                       AFFIDAVIT
 2         I have read the foregoing transcript from
 3   page 1 through 98 and note the following
 4   corrections:
 5   PAGE      LINE      REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
12   
13   
14   
15   
16   
17               _____________________
18                MAHI ASHWATH, M.D.
19   
20   Subscribed and sworn to before me this _______
21   day of _______, 2008.
22   
23              _____________________
24                  Notary Public
25   My commission expires ______________.
0100
 1                      CERTIFICATE
 2   
 3   State of Ohio,      )
 4                       )  SS:
 5   County of Cuyahoga. )
 6   
 7   
 8   
 9     I, Cynthia A. Sullivan, a Notary Public within
     and for the State of Ohio, duly commissioned and
10   qualified, do hereby certify that the within
     named MAHI ASHWATH, M.D. was by me first duly
11   sworn to testify to the truth, the whole truth
     and nothing but the truth in the cause
12   aforesaid; that the testimony as above set forth
     was by me reduced to stenotypy, afterwards
13   transcribed, and that the foregoing is a true
     and correct transcription of the testimony.
14   
       I do further certify that this deposition was
15   taken at the time and place specified and was
     completed without adjournment; that I am not a
16   relative or attorney for either party or
     otherwise interested in the event of this
17   action.  I am not, nor is the court reporting
     firm with which I am affiliated, under a
18   contract as defined in Civil Rule 28(D).
19     IN WITNESS WHEREOF, I have hereunto set my
     hand and affixed my seal of office at Cleveland,
20   Ohio, on this 2nd day of January 2008.
21   
22   
23   
           Cynthia A. Sullivan, Notary Public
24          Within and for the State of Ohio
25   My commission expires October 17, 2011.
0101
 1                         INDEX
 2          DEPOSITION OF MAHI ASHWATH, M.D.
 3   
 4     BY MR. MISHKIND:                       3
 5   
 6     Deposition Exhibit 1 was marked        5
 7     Deposition Exhibit 2 was marked        40
 8     Deposition Exhibit 3 was marked        98
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