1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 TONI L. BIANCHI, Executrix of the ESTATE OF FRANCES R. 4 BRONCACCIO, deceased, 5 Plaintiffs, 6 -vs- CASE NO. 370551 7 KAISER FOUNDATION HEALTH PLAN OF OHIO, et al., 8 Defendants. 9 - - - - 10 Telephone deposition of G. JAMES AVERY, II, 11 M.D., taken as if upon cross-examination before 12 Pamela S. Greenfield, a Registered Diplomate 13 Reporter, Certified Realtime Reporter and Notary 14 Public within and for the State of Ohio, at the 15 offices of Bonezzi, Switzer, Murphy & Polito, 16 1400 Leader Building, Cleveland, Ohio, at 5:40 17 p.m. on Thursday, March 1, 2001, pursuant to 18 notice and/or stipulations of counsel, on behalf 19 of the Defendants in this cause. 20 - - - - 21 MEHLER & HAGESTROM Court Reporters 22 CLEVELAND AKRON 23 1750 Midland Building 1015 Key Building Cleveland, Ohio 44115 Akron, Ohio 44308 24 216.621.4984 330.535.7300 FAX 621.0050 FAX 535.0050 25 800.822.0650 800.562.7100 2 1 APPEARANCES: 2 Tobias J. Hirshman, Esq. (via telephone) 3 Mark Ruf, Esq. (via telephone) Linton & Hirshman 4 700 West St. Clair Avenue Hoyt Block, Suite 300 5 Cleveland, Ohio 44113-1230 (216) 771-5800, 6 On behalf of the Plaintiffs; 7 Susan M. Reinker, Esq. 8 Bonezzi, Switzer, Murphy & Polito 1400 Leader Building 9 Cleveland, Ohio 44114 (216) 875-2767, 10 On behalf of the Defendants. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 G. JAMES AVERY, II, M.D., of lawful age, 2 called by the Defendants for the purpose of 3 cross-examination, as provided by the Rules of 4 Civil Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as 6 follows: 7 CROSS-EXAMINATION OF G. JAMES AVERY, II, M.D. 8 BY MS. REINKER: 9 Q. Dr. Avery, can you hear me all right? 10 A. Yes, I can hear you fine. 11 Q. Have you ever given a telephone deposition 12 before? 13 A. Yes, I have. 14 Q. So you are familiar sometimes with the problems 15 that occur? 16 A. Well, I'm familiar with the fact that sometimes 17 people don't hear everything and sometimes 18 there's a little bit of a lag in terms of there 19 is a delay getting the voice from where I am to 20 where you are; but aside from that, I've maybe 21 did this once or twice before over the phone and 22 other than a kind of odd virtual nature to the 23 experience, it seems to work out just fine. 24 Q. Well, just so you know to let me know if I cut 25 you off or if you can't understand me. Okay? 4 1 A. Definitely. 2 MS. REINKER: Is Mark Ruf on the 3 line, too? 4 MR. RUF: Yes, I am. 5 MS. REINKER: Why don't we go 6 ahead and swear the witness. 7 - - - - 8 (Thereupon, the witness was duly 9 sworn.) 10 - - - - 11 Q. Dr. Avery, would you state your full name, 12 please, for the record. 13 A. Yes. James Avery, spelled A-V-E-R-Y. 14 Q. Do you have a middle name? 15 A. First initial G. 16 Q. What does the G stand for? 17 A. That stands for Gaylord. 18 Q. Have you ever gone by any other names? 19 A. I have not. 20 Q. Your date of birth is April 22, 1945? 21 A. That's correct. 22 Q. What is your Social Security number? 23 A. 043-36-7364. 24 Q. Is that the number you would like us to use for 25 any payment we send to you for today's deposition 5 1 time? 2 A. Actually, not. I would prefer you use my 3 corporate identification. 4 Q. Is that a tax ID number? 5 A. Tax ID number, yes. 6 Q. What is that? 7 A. It's 94-283-6163. 8 Q. Who is your current employer? 9 A. I am self-employed. 10 Q. Do you have a professional corporation? 11 A. Yes. 12 Q. What is the name? 13 A. The official title is first initial G. James 14 Avery, II, M.D., a Professional Corporation. 15 Q. Does that corporation employ anyone other than 16 yourself? 17 A. No. 18 Q. Any staff workers, secretaries, surgical 19 assistants, anybody like that? 20 A. No, it does not. 21 Q. Is that the sole source of compensation that you 22 receive for the medical practice you're engaged 23 in? 24 A. Yes. 25 Q. I noticed on your curriculum vitae at the bottom 6 1 of the first page you have the word practice and 2 then it says J. Donald Hill, M.D., 1979 to the 3 present. 4 Who is J. Donald Hill, M.D.? 5 A. He's another cardiac surgeon and the CV you have 6 must not be updated as on October 1st, 2000, 7 Dr. Hill and I dissolved our partnership at which 8 point I became a solo practitioner. 9 Q. So you and Dr. Hill since 1979 had a two-person 10 partnership or was there a bigger group? 11 A. It was a two-person cardiac surgical group and in 12 the office there was a third physician whose last 13 name is Hershon spelled H-E-R-S-H-O-N, a 14 pulmonary and intensive care doctor who shared 15 some office space. 16 Q. What is your current office address? 17 A. 2100 Webster Street, Suite 320, San Francisco, 18 94115. 19 Q. Is that in any university medical complex? 20 A. No, but it is an office building physically 21 connected with the hospital where I primarily 22 work. 23 Q. Which hospital is that? 24 A. It currently calls itself California Pacific 25 Medical Center, Pacific campus. Known to those 7 1 of us who have been around a long time as 2 Presbyterian Hospital. 3 Q. How large of a hospital is that? 4 A. It's a hospital of about, oh, gosh, maybe 4 or 5 500 beds. 6 Q. Is that a teaching institution? 7 A. Yes and no. It is not a university hospital. It 8 is not affiliated with any university but it has 9 residencies in internal medicine, a fellowship 10 program in cardiology, gastroenterology, 11 neurology, ophthalmology and a few other 12 fellowships such as shoulder and hand and so on. 13 Q. Is there a fellowship in cardiothoracic surgery? 14 A. No. We have an unofficial fellowship which 15 allows for further refinement and training for 16 those cardiac surgeons desiring polish in heart 17 transplantation and assist devices, but it does 18 not grant a diploma. 19 Q. What do you mean by an unofficial fellowship? Is 20 that approved by any accrediting agency? 21 A. No. That's what makes it unofficial. It's been 22 around as such for quite some time by virtue of 23 the history of this hospital which is that it 24 used to be Stanford University before Stanford 25 moved to Palo Alto. 8 1 Q. That was when? 2 A. That was in 1955. 3 Q. How many physicians are currently involved in 4 your unofficial fellowship program? 5 A. Just Dr. Hill and I as we are the only two 6 physicians at this medical center who do heart 7 transplantation and assertion of assist devices. 8 Q. Are there any fellows in the program at any time? 9 A. Yes, there is. 10 Q. How many? 11 A. One. 12 Q. Where does he or she come from? 13 A. He comes from the University of Connecticut where 14 he is a general surgeon planning to become a 15 heart surgeon. 16 Q. Has he done a cardiothoracic surgery fellowship 17 yet? 18 A. Not yet. 19 Q. So this is something he's doing before he starts 20 his fellowship? 21 A. That's correct. 22 Q. Is that how your program usually works? It's 23 people who are thinking about going into 24 cardiothoracic surgery? 25 A. Usually not. Usually the program in the past has 9 1 been a place for people who have been trained in 2 cardiothoracic surgery to get additional exposure 3 to and experience with end stage heart patients. 4 Q. Is Dr. Hill still in practice at California 5 Pacific Medical Center? 6 A. Yes. 7 Q. Why did your group separate? 8 A. It was an amicable parting based on the 9 increasing overhead and decreasing revenues to 10 that joint practice such that we had to downsize 11 and it wasn't possible after a great deal of 12 effort to downsize in a way that was acceptable 13 to everybody and so the three people who were 14 sharing office space in that office dissolved 15 their association. 16 Q. So you actually physically relocated your office? 17 A. Yes, I did. 18 Q. Do you have privileges at any other institutions 19 other than California Pacific? 20 A. I do and by virtue of the California Pacific 21 certification, if you will, I now have the option 22 to work at the two other hospitals in the network 23 which is officially called California Pacific. 24 Those two campuses are at what used to be called 25 Children's Hospital and what used to be called 10 1 Babies Hospital. 2 Then outside of the CPMC umbrella, I have 3 privileges at a hospital nearby called 4 St. Francis Medical Center which is part of 5 Catholic Healthcare West. 6 Q. Any other institutions? 7 A. No. 8 Q. I gather that California Pacific is the primary 9 place where you see patients? 10 A. Yes. In fact, and that's the only place where I 11 have an office and basically it's the only 12 hospital where I work taking care of my own 13 patients. 14 Q. Have you ever admitted patients to St. Francis 15 Medical Center? 16 A. Just last week, yes. 17 Q. And what was that for? 18 A. That was for a spontaneous pneumothorax occurring 19 in a 27-year-old gentleman traveling from the 20 east coast. 21 Q. Roughly how many patients a year do you admit to 22 St. Francis? 23 A. Well, that was the first one since I've been on 24 staff there which is now close to three years 25 ago. 11 1 - - - - 2 (Thereupon, Avery Exhibit 1, 3 six-page CV, was marked for purposes of 4 identification.) 5 - - - - 6 Q. Now, I've got this, the curriculum vitae that I 7 mentioned before. Do you have that in front of 8 you? 9 A. I don't have the one you have. What I have in 10 front of me is my updated version that is 11 fundamentally going to be the same document, 12 slightly updated, though. 13 Q. What has changed, I mean, the one I have is six 14 pages long. It has 25 publications. 15 MR. HIRSHMAN: Page 2 being one 16 item? 17 MS. REINKER: Exactly. 18 A. Well, my version of that document is five pages. 19 The first two being kind of the demographic stuff 20 about me, where I was educated and various 21 memberships and appointments and so on and the 22 remaining three pages are all publications which 23 ends in Number 28. 24 Q. Okay. What was the subject of the last three 25 publications? 12 1 A. Number 26 was the approach for less invasive 2 Thoratec LVAD insertion. That was in a 3 publication called the Heart Surgery Forum. 4 Then Number 27 is a paper in which I'm the 5 lead author. Cardiac Surgery in the 6 Octogenarian: Evaluation of Risk, Cost and 7 Outcome, which is about to be published in the 8 Annals of Thoracic Surgery. 9 Q. What is -- 10 A. It has not yet appeared but it should in the next 11 month or two. 12 Q. What's the last one? 13 A. The last one, Number 28, is an article occurring 14 in a book called the Surgical Clinics of North 15 America dealing with minimal access surgery and 16 my contribution is in Part 2, Volume 80, Number 17 5. 18 Q. Would you please give Mr. Hirshman a copy of that 19 updated CV before he leaves? 20 A. Yes, I can. 21 Q. And if you would copy, I guess, we're not going 22 to get the book chapter, but the two articles? 23 A. Yes. 24 Q. Thank you. 25 A. You're welcome. 13 1 MR. HIRSHMAN: What are you asking 2 for, Susan, copies of the articles? 3 MS. REINKER: Yes. I think 4 they're Items 26 and 27, because 28 is a 5 book chapter, it's my understanding. 6 A. Are you saying you'd like actually a copy of the 7 things? 8 Q. Yes, I would. 9 A. Well, the one, 26 is on the Internet, I 10 understand, and 27 hasn't yet come out so I just 11 have the dailies that I probably sent back to 12 those folks in Philadelphia. And the book I 13 actually do have in my possession, so I could, I 14 suppose copy it. There's a number of pages. 15 It's a chapter that goes from Pages 1555 to 1574. 16 Q. Don't bother with the book. We can find that. 17 A. Okay. 18 Q. But is there any way you can get a copy of the 19 article that's about to be published? 20 A. Can I get that? Probably so. I may even have a 21 copy of the manuscript in my office still. It 22 should be possible, to answer your question. 23 Q. Okay. Why don't you give that to Mr. Hirshman. 24 A. Yes, I certainly will. 25 Q. Now, it's my understanding your training was in 14 1 cardiothoracic surgery? 2 A. That's correct. 3 Q. And you completed that in 1978? 4 A. Actually, it was, yes, December, '78, right. 5 Q. And that was in New York City? 6 A. Correct. 7 Q. Was that training as a cardiothoracic surgeon? 8 A. Yes. 9 Q. Has your entire practice since that time been in 10 the field of cardiothoracic surgery? 11 A. Well, yes, it has if you include the subgrouping 12 of cardiovascular in cardiothoracic. 13 Q. What do you mean by that? 14 A. That means that I do cardiac surgery, vascular 15 surgery and thoracic surgery. 16 Q. So do you do peripheral vascular? 17 A. I do. 18 Q. Have you ever practiced as an emergency room 19 physician? 20 A. No. 21 Q. I gather you do not attend any seminars in ER 22 medicine? 23 A. That is correct. 24 Q. And I gather you do not subscribe to any journals 25 on ER medicine? 15 1 A. That is correct. 2 Q. Now, your current practice, you have a fairly 3 wide ranging field, I gather, of the different 4 types of surgery you perform? 5 A. That is correct. 6 Q. You do cardiac and I gather you do heart 7 transplants? 8 A. Yes. 9 Q. And you do peripheral vascular, thoracic and 10 central vascular, I presume, as well? 11 A. Correct. 12 Q. How many heart transplants do you do a year? 13 A. Our best year was 30 back in the days before the 14 helmet law in California when donors were more 15 available. 16 The last year's volume was 16 heart 17 transplants and we put in roughly on average five 18 or six assist devices a year. 19 Q. What percent of your practice does that comprise, 20 heart transplant? 21 A. Well, I would say maybe ten percent. 22 Q. And are you and Dr. Hill the two, do you do that 23 as a team? 24 A. Yes, we do. 25 Q. Are you still working as a team when you do 16 1 transplants? 2 A. Yes. As I mentioned before, this division of the 3 office was amicable in the sense that for all 4 intents and purposes, by appearance of things 5 around the hospital nothing has changed. We used 6 to work together all the time and we are the 7 surgical component of the team that does the 8 heart transplants in this hospital. 9 Q. Do you also do various types of heart surgery? 10 A. I do, yes. 11 Q. What types do you do? 12 A. Well, the sort of bread and butter stuff of 13 aortic coronary bypass and valve replacements as 14 well as pacemakers and, as I mentioned, assist 15 devices. 16 Q. What percent of your practice does that kind of 17 surgery comprise? 18 A. Maybe 20 percent. 19 Q. Now, when you said you do thoracic surgery, what 20 did you mean by that? 21 A. That means lung surgery, removing lobes for 22 cancer, draining pyemias, decortication, 23 pneumonectomies, that type of thing. 24 Q. What percent of your practice is lung surgery? 25 A. Probably about 15 percent. 17 1 Q. And then you do peripheral vascular? 2 A. Yes. 3 Q. What's included in peripheral vascular? 4 A. Well, I would include carotid artery procedures 5 in the neck, abdominal aortic aneurysms, stent 6 pop bypass in the legs or variance of that 7 surgery, fem-tib, fem-fib crossovers, those types 8 of things, and an area that has become a more 9 prominent area, if you will, component of my 10 practice profile is working with orthopedic 11 surgeons and neurosurgeons providing exposure for 12 anterior spine fusions. 13 Q. Now, if you lump all that together, what percent 14 of your practice does that comprise? 15 A. All the vascular stuff? 16 Q. Yes. Everything you just listed, the carotid 17 surgeries, triple As, various types of femoral 18 artery bypasses and providing orthopedic 19 exposure? 20 A. Probably about 50 percent of what I do is that. 21 I haven't been keeping track of these numbers. 22 Are we up to 85, 90 percent? 23 Q. I'm up to 85. 24 MR. HIRSHMAN: About 80. 25 MS. REINKER: I'm up to 95. 18 1 MR. HIRSHMAN: I forgot the 15, 2 you're right. 3 Q. 10 percent transplants, 20 percent various types 4 of heart procedures, 15 percent lung and 50 5 percent this group you just mentioned? 6 A. Yeah. 7 Q. Does that sound about right, sir? 8 A. That sounds about right. 9 Q. So what's the last 5 percent? 10 A. Last 5 percent of my practice is medicolegal 11 stuff. 12 Q. So this is not the first time you've testified? 13 A. I beg your pardon? 14 Q. This is not the first time you've testified? 15 A. This occasion today? 16 Q. Correct. 17 A. Correct, it is not. 18 Q. Do you do thoracic aneurysm surgery? 19 A. I'm sorry. Say again, please? 20 Q. Do you do any surgery for thoracic aneurysms? 21 A. Yes. 22 Q. Where would that fall in these different -- 23 A. That would fall in the cardiac area because the 24 typical kind of thoracic dissection that I would 25 be asked to see is in the ascending aorta as was 19 1 the case with this case we're talking about today 2 and that requires the heart lung machine, so 3 that's a cardiac procedure, as I would say. 4 The descending thoracic aorta which can be a 5 site of either rupture or dissection, as well, I 6 would see more as cardiac and vascular also 7 because in that situation, very often I would 8 elect to use peripheral cardiopulmonary bypass to 9 support the lower body while I was cross-clamping 10 the thoracic aorta. So I'd say probably for both 11 of those locations, dissections, I would list as 12 a cardiac procedure. 13 Q. How many surgical procedures do you do a year? 14 A. All together probably 150 to 200. 15 Q. How many thoracic aortic dissections do you do on 16 an average a year? 17 A. I'd say one to two. 18 Q. Do you recall when you did the last one? 19 A. I don't. They tend to come in clumps. It's been 20 a while. 21 Q. Did you do any, have you done any this year so 22 far in the past two months? 23 A. No. 24 Q. How about in the year 2000? 25 A. I don't think so. 20 1 Q. 1999? 2 A. I can't remember. 3 Q. When you do thoracic aortic aneurysm surgery, 4 what technique do you use? 5 A. If we're talking about the ascending aorta? Let 6 me retrace my steps because as you're asking 7 these questions, it's jogging my memory that last 8 year I definitely did a type one dissection and 9 the reason that it's now coming back to me is 10 that we used in that surgery and in one I did 11 before that this material known as BioGlue which 12 is fairly new and it's made by a company called 13 CryoLife. 14 The reason I mention this to you is that it 15 was a very major advance in the treatment and 16 surgical therapy of this entity, dissections, but 17 it allows you to create strong aortic tissue to 18 sew to when you replace the ascending aorta 19 simplifying the procedure and I know I used that 20 at least once and I think twice in the year 2000. 21 Q. Who manufactures BioGlue? 22 A. CryoLife. 23 Q. Do you have any arrangement with CryoLife where 24 you're doing research on their products? 25 A. No. But because we've been dealing with CryoLife 21 1 for other reasons over the years, they were 2 familiar with us and our center so when this 3 BioGlue stuff became available, which I think was 4 only in the last year or two max, we had it 5 available to us right away and we were 6 in-serviced on the proper use of this by the 7 people who work with the stuff at the company. 8 Q. What does BioGlue do? Do you still use a graft 9 and you just stick it on with this BioGlue? 10 A. No. The BioGlue is very important in the 11 treatment of this problem because it allows you 12 basically to cement back together the layers of 13 the aortic wall which have been delaminated by 14 the dissection process whereas in the old days 15 before BioGlue, it was necessary to construct a 16 sandwich at both the proximal end near the aortic 17 valve and the distal end near the innominata 18 artery before sewing in the Dacron graft. 19 And the reason you had to make that sandwich, 20 and I'm defining sandwich as Teflon felt on the 21 inside of the luminal surface of the aortic wall, 22 that's one slice of bread. The meat of the 23 sandwich is the actual three layers of aortic 24 wall and the other slice of bread on the outside 25 is another piece of Dacron felt placed on the 22 1 outside of the aorta and you would have to suture 2 that sandwich together as a separate step in the 3 operation circumferentially, 360 degrees around. 4 Q. Doctor, may I interrupt you a moment? 5 A. Yes. 6 Q. It's already 6:00 in the evening here and I 7 really don't want to be here until one or two in 8 the morning. Can you just confine your answers 9 to my questions? 10 MR. HIRSHMAN: You asked about the 11 BioGlue and what it does. 12 A. What I'm trying to explain to you is what it does 13 and why it's an important step. 14 Q. Did you have to take a seminar or some course to 15 learn how to use BioGlue? 16 A. No. 17 Q. Is it used for anything other than dissection 18 repairs? 19 A. I don't know the answer to that question because 20 the FDA approval initially was for dissections. 21 I can tell you that it is used by people all 22 over the place for slightly different indications 23 but the official use the FDA approved it for was 24 in dissection. 25 Q. So you only did one aneurysm repair in the year 23 1 2000 and that was with BioGlue? 2 A. It may have, there may have been a second one in 3 2000 but for sure one occurred in 2000. 4 Q. How did they work? 5 A. Very well. 6 Q. Can you use BioGlue for an extensive dissection 7 going all the way down to the renal arteries? 8 A. Yes. And before you interrupted me, I was trying 9 to explain to you how it's used. 10 Q. How many cases have you used BioGlue in over the 11 years? 12 A. Well, as I mentioned to you if you were 13 listening, it's only been available for at most 14 two years. 15 Q. So how many cases have you used it in? 16 A. Three. 17 Q. Now, so you are sure now you did at least one 18 aortic dissection that began in, it was an 19 ascending aortic dissection last year? 20 A. Yes. 21 Q. Are you still actively in practice as a surgeon? 22 A. Yes. 23 Q. Do you have any plans on cutting back your 24 practice? 25 A. No. 24 1 Q. Do you currently hold any academic appointments? 2 A. No. 3 Q. Have you ever? 4 A. No. 5 Q. Are you currently involved in any ongoing 6 research projects? 7 A. Yes. 8 Q. How many? 9 A. The main project I'm involved with is a clinical 10 study looking at implantable long-term 11 ventricular assist devices made by Thoratec. 12 Q. And is Thoratec funding the study? 13 A. Yes. 14 Q. Are you involved in any other research projects? 15 A. No. 16 Q. Does Thoratec make any kind of a medical piece of 17 equipment or device that could be used to repair 18 aneurysms or dissections? 19 A. Not that I'm aware of. 20 Q. Now, you said this is not the first time you have 21 testified or been retained to testify as an 22 expert witness? 23 A. Correct. 24 Q. Have you ever worked for any services that seek 25 out physicians who testify for lawyers? 25 1 A. Yes. 2 Q. Which ones? 3 A. Ellen Rieback, spelled R-I-E-B-A-C-K, who is a 4 nurse in Fort Lauderdale, Florida and the other 5 is called MedQuest now. It used to be called 6 Steven Lerner, L-E-R-N-E-R, a forensic 7 pathologist in now Hawaii. He used to be in San 8 Rafael, California. 9 Q. I remember Dr. Lerner. 10 Are you currently this year or in the year 11 2000 still reviewing cases for Ms. Rieback? 12 A. It turns out I have been, yes. 13 Q. How about MedQuest, are you still doing cases for 14 them? 15 A. Yes. 16 Q. Are there any other services over the years that 17 you have assisted? 18 A. No. 19 Q. How many cases have you received for review so 20 far this year, 2001? 21 A. From any source? 22 Q. Yes. 23 A. Probably, probably eight or nine. 24 Q. Can you estimate how many you received last year? 25 A. Probably 25 or so. 26 1 Q. Do you know how many of the 25 you received from 2 Ms. Rieback? 3 A. One or two. 4 Q. And how many from MedQuest now? 5 A. I think last year none from MedQuest. 6 Q. What is the other source or what other sources do 7 you receive, do review cases come to you, what 8 other vehicles find you out for reviewing cases? 9 A. Well, the usual way is I get a call directly from 10 an attorney's office. 11 Q. Do you advertise in any journals? 12 A. I do not. 13 Q. Have you ever sent out any solicitation letters? 14 A. No. 15 Q. Have you ever circulated any sort of advertising 16 material? 17 A. I have not, but I presume both Steve Lerner and 18 Ellen Rieback have. 19 Q. How many years -- when did you first start 20 reviewing medical malpractice cases? 21 A. The first case I reviewed, I recall because of 22 its location, was in either 1980 or 1981. 23 Q. Has the average been 25 cases a year? 24 A. No. I think that number has, is a larger number 25 than it used to be. 27 1 Q. Can you tell me how many years you have been 2 reviewing approximately 25 a year? 3 A. For two or three, the last two or three. 4 Q. Now, if you've already received eight or nine 5 cases this year, you're on target to review about 6 50 cases this year? 7 A. Well, maybe I have that number wrong. I have a 8 sense about the number but I've never really kept 9 track of that. 10 Q. Could it be that you actually reviewed more than 11 25 last year? 12 A. Could be. I wouldn't think it's a lot more than 13 that. 14 Q. I'm sorry, how many years did you tell me you 15 have been reviewing? 16 A. The first year I reviewed a case was in defense 17 of a physician in Lake County and it was either 18 in 1980 or '81. 19 Q. Lake County here in Ohio or Lake County somewhere 20 else? 21 A. California. 22 Q. For how many years have you been reviewing say at 23 least 25 cases a year? 24 A. You asked that before and I think the answer is 25 two to three years. 28 1 Q. Can you give me an estimate as to how many cases 2 you have reviewed in total since 1980? 3 A. No, I can't. 4 Q. It would be at least several hundred, I would 5 presume? 6 A. Presumably, yes. 7 Q. How much do you charge to review a case? 8 A. My current rate is $450 an hour for review of 9 materials, $550 an hour for deposition and $4500 10 a day plus expenses for court testimony. 11 Those are new numbers that just got bucked up 12 the first of February this year. 13 Q. Do you know how much you have been paid so far 14 for the time involved in this case? 15 A. I don't. 16 Q. Did this case come to you through Ms. Rieback or 17 through MedQuest now? 18 A. I don't recall. 19 Q. Have you ever done any other cases that you 20 reviewed for Mr. Mark Ruf? 21 A. I don't recall. I think this is the first. 22 Q. You have no idea how he found you? 23 A. No, I don't. 24 MR. RUF: I can tell you, Susan, 25 it wasn't through either service. 29 1 Q. How about Mr. Hirshman, have you ever looked at a 2 case for Toby Hirshman? 3 A. I don't think so. 4 Q. Do you recall if you reviewed any cases for 5 attorneys in Ohio? 6 A. For attorneys in Ohio? Yes, definitely I have. 7 Q. Can you think of any firms or any lawyers' names? 8 A. I can think of the City of Cleveland. 9 Q. What attorneys? 10 A. I can't remember the gentleman's name. 11 Q. Was it on behalf of a plaintiff or on behalf of a 12 defendant? 13 A. A plaintiff. 14 Q. Is the majority of the work that you do on behalf 15 of plaintiffs? 16 A. Yes. 17 Q. What percent? 18 A. Oh, boy, probably 60 percent. 19 Q. When is the last time you reviewed a case on 20 behalf of a physician or hospital? 21 A. Well, I have several currently that are in 22 progress and I have, let's see, have I been 23 deposed on that? No, I have not been deposed yet 24 on the most active of those defense cases but 25 there are a couple that are active currently. 30 1 Q. How many cases in total do you have open at the 2 present? 3 A. Well, open if you mean they have not, they're 4 sitting around collecting dust but have not been 5 put to rest? 6 Q. Well, cases that as far as you know are still in 7 litigation that your services may still be 8 required to testify. 9 A. Probably a dozen. 10 Q. Any other ones in Ohio? 11 A. Don't think so. 12 Q. You said that the most active case that you have 13 right now is a defense case? 14 A. Yes. 15 Q. What's the name of the attorney who retained you? 16 A. John Fleer. 17 Q. Where is he? 18 A. He is in the East Bay. 19 Q. How do you spell that last name? 20 A. F-L-E-E-R. 21 Q. What's that case about? 22 A. That is a case about a heart surgeon in the East 23 Bay who is being sued by what appears to be kind 24 of a class action suit, a number of nurses are 25 suing this guy because of their view that he was 31 1 verbally abusive to them and caused them to leave 2 that particular hospital and in some cases the 3 field of nursing. 4 Q. So that's not a medical malpractice case? 5 A. Not strictly speaking, right. 6 Q. Do you have any currently open cases in which you 7 have been retained to represent or, I'm sorry, to 8 speak on behalf of a physician in a medical 9 malpractice claim? 10 A. Yes. There are two that I haven't even looked at 11 yet that are at the beginning of the process. 12 Q. Are those also cases in your local area there? 13 A. Yes, they are. 14 Q. How many depositions did you give in the year 15 2000? 16 A. I might be able to answer that. Let me find a 17 file for the year 2000. Two. 18 Q. Have you ever testified in Federal Court? 19 A. Federal Court? I have testified in court. 20 Q. Do you know whether you've ever been in Federal 21 Court and in which situation you would have been 22 asked to prepare a list of all the times you've 23 testified. Do you recall doing -- 24 A. I have never testified in Federal Court if that's 25 how you define it. 32 1 Q. Well, Federal Court requires that you prepare 2 such a list, so sometimes that's how a physician 3 will realize that they are in Federal Court. 4 Do you recall ever having to prepare a list 5 for any attorney of the cases in which you had 6 testified? 7 A. No, I don't, but I can actually update an earlier 8 response regarding the defense of this physician 9 and the nurses and so on, Attorney John Fleer, 10 and that is that I was deposed on January 5th 11 this year in that case, so that one is moving 12 along further than I remembered it had. 13 Q. Is that the only other deposition that you have 14 given so far this year? 15 A. Yes. 16 Q. Do you have any kind of a list that you keep 17 personally, either on your computer or in some 18 sort of file of the cases in which you've been 19 involved? 20 A. Only in the sense of whether I have been deposed 21 or appeared in court. I have tried in recent 22 years to keep track of that. 23 Q. How many times did you testify in court last year 24 in a medical malpractice case? 25 A. None. 33 1 Q. And the two depositions that you gave were both 2 medical malpractice cases? 3 A. They were. 4 Q. Have you ever testified in court? 5 A. Yes. 6 MR. HIRSHMAN: Well, they aren't 7 in the way you're defining it, Susan, 8 because one of them was this Fleer case 9 which you've decided to categorize as 10 something other than a malpractice case. 11 Q. Well, would you categorize it as a malpractice 12 case? 13 A. Would I? 14 Q. No. Would Mr. Hirshman? Apparently he -- 15 MR. HIRSHMAN: I don't care how 16 you characterize it. You're the one that 17 said it's not a malpractice case. That's 18 all I'm trying to do is use the terminology 19 you were using before. 20 Q. My question was, I believe, have you ever 21 testified in court in -- you have testified in 22 court in a medical malpractice case, I presume? 23 A. Yes. 24 Q. How many times? 25 A. None in the year 2000. Once in 1999 I was in an 34 1 arbitration hearing. That's not exactly court. 2 January 15, '99 in I think Fresno. It was an 3 arbitration hearing. It was not in the 4 courtroom. That was '99. I was not in court at 5 all in '98. I was in court twice in '97. 6 Q. The other cases that you currently have open, do 7 any of them deal with something to do with 8 treatment for an aortic dissection? 9 A. I don't think so. As I told you before, the two 10 that just arrived which are defense cases that 11 I'm involved with, I have not looked at in any 12 detail sufficient to each allow me to say what 13 the basic issues are. 14 Q. Do you recall whether you've ever been involved 15 in a case before in which the issue had to do 16 with an aortic dissection? 17 A. It's possible, but I don't recall that offhand. 18 Q. What percent of your income comes about currently 19 from your medicolegal endeavors? 20 A. What percent of my income? 21 Q. Yes. 22 A. Probably about 20 percent. 23 Q. I gather that you have reviewed some materials in 24 this case? 25 A. Yes, I have. 35 1 Q. Are they in front of you at the present? 2 A. Yes. 3 Q. I'd like you to list for me everything that you 4 have reviewed. 5 A. I have a binder which contains defense, 6 defendants' responses to plaintiffs' first 7 request for production of documents. The 8 deposition of Joseph Haluska. The Kaiser Parma 9 records of 12/7/97 through 12/8/97. The Kaiser 10 Parma electronic records. The Kaiser outpatient 11 records. 12 The coroner's verdict autopsy protocol. The 13 deposition of Terry Doster. I hope I'm 14 pronouncing that name correctly. The deposition 15 of Carolyn Wilson. The deposition of Rachel 16 Abernethy or Abernethy. What appears to be some 17 duplicate Kaiser records that are from -- well, I 18 can read you the title: This is the active and 19 inactive diagnosis complaint summary which 20 included the chest pain, rule out MI 12/7/97 21 event. And then in another folder, deposition of 22 Richard Gajdowski. I hope I'm pronouncing that 23 name correctly. Deposition of Neil Kaforey. 24 Deposition of Steven Ryder. Deposition of Ruth 25 Tlacil. 36 1 Deposition of Donna Bach. Deposition of 2 Robert Bianchi. Deposition of Toni Bianchi and 3 the deposition of Donna Broncaccio. 4 Q. Have you actually reviewed all of those 5 materials? 6 A. Yes, I have. 7 Q. Can you give me any estimate as to how many hours 8 that took? 9 A. I have no idea. 10 Q. It took a lot of hours, didn't it? 11 A. Looks like a few. 12 Q. Have you seen any of the medical expert reports? 13 A. Have I seen any of the medical expert reports? I 14 produced one myself and I have reviewed it and 15 that's it. 16 Q. You have not seen any of the defendants' reports, 17 then? 18 A. Correct. 19 Q. Did you look at any medical literature? 20 A. No. 21 Q. Have you reviewed any what I might call hard 22 evidence, anything like x-rays, autopsy slides, 23 photographs of the decedent, anything like that? 24 A. No. 25 Q. Is there anything that you have asked to review 37 1 or that you feel you need to review before you 2 testify in the trial? 3 A. No. 4 - - - - 5 (Thereupon, Avery Exhibit 2, 6 two-page 1/12/00 report, was marked for purposes 7 of identification.) 8 - - - - 9 Q. Now, I've had your report dated January 12th of 10 2000, marked as Exhibit 2. 11 A. Yes. 12 Q. Have you prepared any other reports? 13 A. No. 14 Q. Do you have in front of you in the materials any 15 correspondence that you received from the 16 plaintiffs' counsel? 17 A. No. 18 Q. Did you ever receive any correspondence from 19 Mr. Ruf or from Mr. Hirshman? 20 A. I must have. 21 Q. But it's gone? 22 A. It's gone. 23 Q. Where did it go? 24 A. Bye-bye. 25 Q. You threw it away? 38 1 A. Yes. 2 Q. When did you throw it away? 3 A. Probably the day I got it. Because they would be 4 cover letters saying enclosed please find blah, 5 blah, blah. 6 Q. And you didn't feel a need to keep any of that? 7 A. No. 8 Q. Did you prepare any notes? 9 A. No. 10 Q. You've reviewed all of these materials and you 11 prepared no notes of any kind? 12 A. Correct. 13 Q. When is the last time you reviewed all these 14 things? 15 A. In the last several days. 16 Q. And when you reviewed them again, did you prepare 17 any notes? 18 A. No. 19 Q. Anything on your computer? 20 A. No. 21 Q. Are there, have you reviewed your report 22 recently? 23 A. I beg your pardon? 24 Q. The report that you have, have you reviewed that 25 recently? 39 1 A. Yes. 2 Q. Do you still stand by the opinions in that 3 report? 4 A. Yes. 5 Q. Are there any opinions you intend to offer in 6 this case that are not in some way discussed in 7 your report? 8 A. I don't think so. 9 Q. Have you ever practiced as a primary care 10 physician other than, you said you did not do any 11 ER work. How about as a primary care physician? 12 A. I have not. 13 Q. Have you ever been in a situation where you were 14 the initial person to make a diagnosis in a 15 primary care setting of some sort of a possible 16 aortic dissection? 17 A. Probably not. Since I was -- well, let me amend 18 that to say the only time I would have done that 19 was in my training when I was, as part of that 20 training in an emergency room and in some years 21 the primary triage officer. 22 Q. Do you know what the incidence is of aortic 23 dissections, either ascending or descending in 24 the general population? 25 A. No. 40 1 Q. You know how physicians sometimes give these 2 statistics like one per 300,000 or one per 2,000? 3 Do you have any idea what the incidence is? 4 A. I have a sense that it's probably about in the 5 range of one percent to, one percent to less, 6 let's just say. 7 Q. You mean less than 1 in 100? 8 A. Yes. At most 1 in 100 and probably less. 9 Q. You reviewed all of Mrs. Broncaccio's medical 10 records? 11 A. Yes. 12 Q. And you're familiar with her presenting symptoms 13 when she arrived in the emergency room on 14 December 7th? 15 A. Yes. 16 Q. Her chest pain in the emergency room was, her 17 chest discomfort or chest pressure, I think were 18 the words used, was described as two to four out 19 of ten, on a scale of ten. 20 Do you recall seeing that? 21 A. Let me turn to the ER record so I am on the same 22 page. 23 MR. HIRSHMAN: What are you 24 directing him to there, Susan? 25 Q. He's choosing to look at the nurses' notes for a 41 1 description of the type of pain or chest 2 discomfort she had when she presented. 3 A. Right now I'm finding the progress notes and now 4 I see the nursing assessment and at the top of 5 this emergency medical screening exam nursing 6 assessment is chief complaint, chest pain about 7 11:00. 8 Q. Okay. I think I see the document you're looking 9 at. 10 A. Pain, midsternal, four over ten. Pressure, 11 medium, so on. 12 Q. Do you see some other places where it's described 13 as two over ten as the time went by? 14 A. I see further down on that same page at what 15 appears to be 20 minutes after midnight, pressure 16 is zero to two over ten. 17 Q. Would you agree with the characterization of her 18 chest discomfort while she was in the emergency 19 room as low grade? 20 A. Chest discomfort as low grade? I would rather 21 not characterize it in those kind of words 22 because since it's already been described by the 23 nurses at the time in numbers, I think that says 24 it better. 25 Q. Would you agree this is mild pain? 42 1 A. I would respond in the same way. I'd rather not 2 give it an adjective rather than a number, since 3 the numbers are already there. 4 Q. I would gather that you would agree that this 5 patient never complained of severe ripping or 6 tearing chest pain? 7 A. Well, I don't see any description of severe 8 ripping chest pain anywhere in the chart. 9 Q. So you would agree with my statement, then, that 10 no such complaint was ever made by 11 Mrs. Broncaccio? 12 A. No. I would agree that it's not been documented 13 and recorded in the chart. I don't know what she 14 actually complained of and to whom. 15 Q. Do you have any reason to believe from anything 16 you've read, the depositions, anything, that this 17 lady ever complained of severe ripping or tearing 18 chest pain? 19 A. I'm unaware that that complaint occurred. 20 Q. Would you agree that the words most frequently 21 used in the literature to describe the pain 22 caused by a thoracic dissection is ripping or 23 tearing pain? 24 A. I would agree that that is the textbook 25 description. 43 1 Q. Do you have any idea what percent of patients who 2 present to an emergency room with chest 3 discomfort fall in the range of two to four over 4 ten? 5 A. I have no idea. 6 Q. Do you have any idea what is the most common 7 diagnosis for patients who present with that 8 level of chest discomfort, two or four over ten? 9 A. I have an idea but I don't have knowledge of 10 that. 11 Q. What's your idea? 12 A. Probably it's angina. 13 Q. You think that more of these patients will turn 14 out to have angina than what turn out to have 15 something like gastrointestinal problems? 16 A. In an emergency room presentation? 17 Q. Yes. 18 A. Chest pain? Yes. I think mostly it's angina. 19 Q. So you think a higher percent of patients are 20 going to have angina and not GI problems? 21 A. Complaining of chest pain, yes. 22 Q. Have you read any literature or anything that 23 would support your theory? 24 A. No. 25 Q. Would you agree that the most likely cause, I 44 1 think you've just said this, for a patient 2 presenting with the picture Mrs. Broncaccio 3 presented with is some sort of a cardiac problem? 4 A. Yes. That would be first on my differential. 5 Q. In fact, you said before you think the most 6 common cause of chest pain of two to four over 7 ten would be angina. 8 What percent of patients do you believe 9 presenting with that symptom would turn out to 10 have some sort of a cardiac problem? 11 A. I would only guess. I don't know. 12 Q. What would your estimate be? 13 MR. HIRSHMAN: I don't want you 14 guessing, doctor. This isn't a guessing 15 contest. 16 A. I don't know. 17 Q. You have absolutely no idea; is that correct? 18 A. Correct. 19 Q. Now, I think from your report at least I get the 20 impression that you would agree it was incumbent 21 upon Dr. Haluska to do his best to investigate 22 and rule out a cardiac cause of Mrs. Broncaccio's 23 problems? 24 A. Correct. 25 Q. Was that Toby or was that the doctor? 45 1 A. That was the doctor. 2 MR. HIRSHMAN: What kind of a 3 comment is that? 4 MS. REINKER: A bit of humor, 5 Toby. It sounded like you. 6 MR. HIRSHMAN: Sense of humor. 7 Q. Doctor, do you think that the things that were 8 done in this case to investigate a cardiac 9 problem were done appropriately? 10 A. Would you repeat that again, please? 11 Q. You agree that it was incumbent upon Dr. Haluska 12 to rule out as best he could a cardiac problem? 13 A. Yes. 14 Q. Do you agree that the things that were done in 15 this case to investigate a cardiac problem were 16 done, were the appropriate things to do? 17 A. The measurement of blood studies, particularly 18 the CPK and serial EKGs. 19 Q. And would you agree that those were the 20 appropriate steps to take to investigate a 21 potential cardiac problem? 22 A. Yes. 23 Q. I gather from your report that you would agree an 24 MI, an acute infarction cannot be ruled out until 25 the serial enzymes and the serial EKGs have been 46 1 completed? 2 A. Yes, but I want to qualify my response by saying 3 that I don't believe you need all three of their 4 package to make that determination. 5 Q. In your report, you make the statement, indeed 6 the serial EKG and enzyme studies, plural, ruled 7 out an infarct. 8 Do you still stand by that statement? 9 A. Yes. 10 Q. In your practice, what do you think is sufficient 11 to rule out an MI with regard to -- 12 A. Well, currently the tropanin levels would be the 13 most helpful in terms of a chemical marker of 14 infarct. 15 The EKG is also very useful in that regard. 16 Q. You've made the statement, though, that you can 17 rule out an MI, rule it out at some point when 18 you've done enzyme studies. 19 How many enzyme studies in your practice do 20 you think are sufficient to absolutely rule out 21 an acute MI? 22 A. Well, I think the combination of enzyme studies 23 with electrocardiograms, too, can do it. 24 Q. So in your own practice, you do not do the third? 25 A. Let's put it this way: I don't require that a 47 1 third be drawn or done before making a 2 determination of in or out. 3 Q. Is that true, also, I presume they have an 4 emergency room at California Pacific? 5 A. They do. 6 Q. Do they have some kind of a unit where patients 7 are placed to evaluate complaints rather than 8 send them home? 9 A. No. They have an emergency room where patients 10 are evaluated initially and if there is a 11 suspicion that there's something serious going on 12 requiring observation in the hospital, typically 13 that patient who we'll label as rule out MI is 14 admitted to the coronary care unit. 15 Q. So they don't have any intermediate unit such as 16 a chest pain unit or what in this case they had 17 called the CDU, an observation unit? 18 A. That is correct. 19 Q. Do you know what the protocol is -- well, do they 20 have any protocol in the cardiac, CCU at 21 California Pacific as to how many enzyme studies 22 are done? 23 A. There must be a protocol for that. What it is, I 24 don't know. 25 Q. You have no idea? 48 1 A. I don't. 2 Q. But is it your belief that their protocol also 3 requires only two enzyme studies? 4 MR. HIRSHMAN: He just told you 5 he doesn't know what the protocol was. Now 6 you're asking him his guess as to what it 7 says. 8 Q. Well, do you believe that other physicians with 9 whom you practice out there share your viewpoint 10 that only two enzyme studies are necessary to 11 rule out an MI? 12 A. Yes. 13 Q. Do you know of any literature that also says that 14 only two enzyme studies are required to rule out 15 an MI? 16 A. No, but, again, my answer was referring not just 17 to enzyme studies. It included with enzyme 18 studies electrocardiograms plural. 19 Q. So in your opinion if there are two EKGs and two 20 enzyme studies and the physician is comfortable 21 with the results, then that's sufficient to rule 22 out an acute MI? 23 A. Yes. 24 Q. And, again, do you know of any published 25 standards or any publications of any kind that 49 1 would agree with that? 2 A. I don't. 3 Q. What did you think about Mrs. Broncaccio's EKGs 4 in this case? 5 A. I was unimpressed with them. 6 Q. Did you think they were normal? 7 A. I think the first one had some minor ST segment 8 and T wave changes. I think the next one had 9 sinus bradycardia and that's about it and the 10 last one looked pretty normal to me. 11 Q. Do you think any of those three EKGs could have 12 been consistent with an acute MI? 13 A. No. 14 Q. Do you think any one of those three EKGs could be 15 consistent with angina, with a patient, I'm 16 saying with a patient having anginal pain? 17 A. Consistent with? I think it's very unlikely that 18 a patient with angina would have had those EKGs. 19 Q. So -- 20 A. Possible but not likely. 21 Q. -- are you saying that those EKGs rule out 22 angina? 23 A. That's what I'm saying. You can't rule out 24 angina on the basis of an electrocardiogram. 25 Angina is a clinical diagnosis. 50 1 Q. You can't rule out angina on the basis of 2 negative enzymes, either, can you? 3 A. No. Angina is a clinical description of a 4 symptom. 5 Q. Would you agree that Mrs. Broncaccio's 6 presentation throughout the hours she was in the 7 emergency room and the CDU could have been 8 completely consistent with a patient having 9 anginal pain? 10 A. No. 11 Q. What was inconsistent in her presentation with 12 angina? 13 A. Well, first of all, the history of a loss of 14 consciousness is not consistent with angina. The 15 additional symptom of back pain is not consistent 16 with angina. 17 Q. Anything else? 18 A. The hypotension that she had at times was not 19 consistent with angina. 20 Q. Anything else? 21 A. That's all I can think of at the moment. 22 Q. So you are saying, then, that a patient who, I'm 23 sorry, what did you call it, syncope? 24 A. Yes. 25 Q. She did not actually faint, did she? 51 1 A. Did she faint? Let me see. That information I 2 got mostly from a deposition of one of the 3 daughters. I think what was said about that is 4 that she was unresponsive. 5 Q. And a patient who has angina can never have a 6 short period of time where they're not 7 responsive? 8 A. Well, any time you ask a question can such and 9 such happen, the answer has to be yes because I 10 think anything is theoretically possible but let 11 me just say that it would be very atypical that a 12 person who had angina and only angina would have 13 a syncope or near syncopal episode as this woman 14 did. 15 Q. What kinds of things can cause a syncopal 16 episode? 17 A. Well, things that interrupt flow to the brain for 18 any reason such as a sudden drop of blood 19 pressure that's sustained for more than about 10 20 or 12 seconds could drop the flow to the brain 21 sufficient to have someone pass out. A slow 22 cardiac rhythm which would produce the same 23 effect could do it. 24 Q. A vasovagal response could do it, correct? 25 A. A vasovagal response could make a person 52 1 hypotensive and get light-headed and pass out on 2 the basis of hypotension. It would be more 3 likely than not to happen if a patient were 4 standing and had a vasovagal response. 5 Q. Do you have any idea how many patients present to 6 an emergency room in a month with a fainting 7 episode? 8 A. I have no idea. 9 Q. Did you say that an episode of back pain is not 10 consistent with angina? 11 A. Well, I think it was worded a little differently 12 than that. I think I was saying that I thought 13 back pain is not compatible with angina or 14 indicative of angina. 15 Q. But patients who have a cardiac problem can have 16 back pain, can't they? 17 A. Can? Again, any time you say can I have to say 18 yes because anything is theoretically possible. 19 Q. So it's theoretically possible that a patient 20 with angina can complain of back pain? 21 A. Theoretically possible. 22 Q. Would you agree that the records document one 23 complaint of back pain? 24 A. One complaint? I think I saw more than one 25 complaint. Let me see if I can turn to the 53 1 section. 2 Q. I'm sorry. I keep ignoring the episode around 3 noon shortly before the arrest when 4 Mrs. Broncaccio told one of the nurses she had 5 back pressure, I believe; but other than that, 6 would you agree there was one complaint of back 7 pain? 8 MR. HIRSHMAN: In the records? 9 MS. REINKER: Yes. 10 MR. HIRSHMAN: Is that what 11 you're asking, Susan? 12 MS. REINKER: That's what I'm 13 asking. 14 MR. HIRSHMAN: That's what you 15 asked the first time. 16 A. Well, I'm not sure I'm going to be answering your 17 exact question because I was flipping pages; but 18 I see in the, what appears to be the nursing 19 assessment that at 3:30 the patient is 20 complaining of back pain, excuse me, at 3:00, 21 0300 on 12/8. Did you cite that example? 22 Q. My question to you was whether you would agree 23 there was only one complaint of back pain during 24 the time she was there until noon the next day? 25 MR. HIRSHMAN: Your question was 54 1 whether there was one complaint of back 2 pain noted in the records. If you're going 3 to ask the same question, make sure it's 4 the same question, Susan. 5 If you want to ask the other 6 question, you're entitled to, obviously, 7 but let's not mix apples and oranges here. 8 A. Okay. At 3:00, I see a nursing note that relates 9 to a complaint of back pain and then again back 10 pressure at 12 noon. 11 Q. Okay. Did you see in the morning hours when GI 12 complaints developed? 13 A. Yes. 14 Q. Do you recall when that was? 15 A. Well, it appears to be around 8:00 on the 8th 16 that she's complaining of nausea and having 17 diarrhea, oh, and here, oh, yes, at six she had 18 two liquid stools, complaining of nausea. 19 Q. When a patient in an emergency room setting 20 begins to complain of diarrhea and nausea, it's 21 reasonable for the caregivers to begin to suspect 22 a GI problem, isn't it? 23 A. It depends on what happened before. 24 I think in this case it's not reasonable to 25 think of a GI problem as a primary cause of the 55 1 symptom in view of her presentation of chest and 2 back pain with the history of hypertension and 3 the presyncopal episode that happened at home. 4 I think a constellation of all of that does 5 not point to a primary GI disturbance with these 6 symptoms. 7 Q. Isn't that hindsight talking, sir? 8 A. It's, well, it's taking a look at the whole 9 story. 10 Q. A patient complaining of chest pain, low grade 11 pain, two to four over ten can have an epigastric 12 problem, can't they? 13 A. Could. 14 Q. And that can be caused by GI, have a GI cause, a 15 gastrointestinal cause? 16 A. We're talking about some theoretical patient? 17 Q. Yes. 18 A. Yes. 19 Q. What is the basis for the statement in your 20 report that, well, you make the statement in your 21 report that patients who have an aortic 22 dissection can be repaired with a success rate of 23 80 percent at major centers. 24 Do you remember that statement? 25 A. Well, my statement was the anticipated survival 56 1 of a patient who has a dissection prior to 2 rupture and hemodynamic collapse is in excess of 3 80 percent at major centers doing this kind of 4 work. 5 Q. Where did you get that figure of 80 percent? 6 A. From the literature and from the experience that 7 I have with this condition and I must say that 80 8 percent is a generous on the low side number. 9 Q. You think it's actually a higher survival rate? 10 A. Yes, it is. 11 Q. Do you, what literature specifically did you get 12 that figure from? 13 A. The literature in the thoracic surgical arena. 14 Q. Do you have any opinion as to what 15 Mrs. Broncaccio's survival rate would have been? 16 A. What her survival rate would have been? 17 Q. What range would she have fallen in? 18 MR. HIRSHMAN: If what? 19 Q. If she'd have had surgery? 20 MR. HIRSHMAN: If she'd had 21 timely surgery, doctor. 22 A. If she had had surgery while she was still 23 hemodynamically together and prior to rupture and 24 so on, she is well within the 80 percent number. 25 Q. Are you aware of any risk factors that this lady 57 1 had going into surgery? 2 A. Yes. 3 Q. What would you consider them to be? 4 A. Well, she fits in the category of most people who 5 tend to have dissections in that she's 69 years 6 old, so she's in the age group that has 7 dissections and she has a history of 8 hypertension, which is another major risk factor. 9 Q. Are you aware of any other risk factors? 10 A. We know from the autopsy in retrospect that she 11 had coronary disease which I would consider a 12 risk factor in terms of trouble getting her off 13 the heart lung machine at the conclusion of the 14 operation that would have been done on this 15 patient. 16 Q. And that would have increased her risk at the 17 conclusion of the surgery? 18 A. Conceivably, yes, but the reason it's hard to 19 give much of an answer to that theoretical 20 question is the lack of correlation in my 21 experience between the autopsy evaluation of 22 coronary stenoses and the cardiac cath 23 interpretation of the very same stenosis. 24 Q. Do you have any opinion, would you agree that 25 Mrs. Broncaccio had triple vessel coronary artery 58 1 disease? 2 A. Yes. 3 Q. Do you have any opinion as to what percent of 4 stenosis she probably had of those three vessels? 5 A. Well, I know what the autopsy reported. My 6 impression, however, is that the two stenoses in 7 the left coronary system, namely the LAD and the 8 CIRC, were not hemodynamically significant in 9 terms of the perfusion to the left ventricle in 10 all probability and therefore I think that her 11 coronary artery disease, though impressive 12 sounding by autopsy would probably not have been 13 a major risk factor to her doing well -- 14 Q. So you think -- 15 A. -- with surgery. 16 Q. So you think a 95 percent stenosis of her 17 dominant right coronary artery was not 18 significant? 19 A. Well, I think that's a significant number; but I 20 don't think that the two left sided lesions were 21 hemodynamically significant in all probability so 22 as to adversely affect the outcome of her 23 surgery. 24 Q. Do you have any basis for believing that a 75 25 percent occlusion of her two other coronary 59 1 vessels was not significant? 2 A. Well, as I mentioned before, my observation with 3 patients that I've been involved with is that 4 autopsy evaluation of coronary pathology is 5 always a much bigger number than the cardiac cath 6 data on that very same patient in the same time 7 frame. 8 Q. Do you have any opinion as to the cause of 9 Mrs. Broncaccio's prior infarct? 10 A. I think that was probably related to the right 11 coronary as the pathology at autopsy was 12 scattered scarring on the inferior wall which 13 would be the territory served by the distal right 14 coronary. 15 I also don't know, based on the autopsy, the 16 exact location of the stenoses that were 17 mentioned in the autopsy report. Those details 18 matter. 19 Q. How many CABG surgeries do you do a year, sir? 20 A. Probably about a dozen. 21 Q. Have you done any this year so far? 22 A. No. 23 Q. I gather you will be rendering opinions in this 24 case that the care given during this visit to the 25 Kaiser emergency room in December of 1998 fell 60 1 below standards? 2 A. Yes. 3 Q. Can you tell me in what way you're going to be 4 testifying that the care fell below standards? 5 A. Well, put simply, Dr. Haluska and the other 6 physician who came in after him, Dr. Ryder, in my 7 opinion never seriously considered the diagnosis 8 of a dissection despite her presentation, which 9 in my opinion is eminently consistent with that 10 diagnosis. 11 Q. Well, can you tell me in what manner Dr. Haluska 12 fell below the recognized standards of care? 13 A. Well, first of all by not thinking of it and 14 secondly by not paying attention to the data as 15 it was coming back which would have and should 16 have allowed him to rule out an infarct as the 17 explanation for her chest discomfort. 18 Q. Is there any other way, any specific thing or 19 things you're going to say that Dr. Haluska did 20 wrong? 21 A. Well, specifically he didn't think of the 22 diagnosis. That's first. Secondly, he didn't 23 ride herd on her results from her enzyme studies 24 and her electrocardiograms to realize early on in 25 her course that she wasn't looking like somebody 61 1 who had coronary disease to explain her symptoms 2 and basically by not reevaluating her during the 3 time he was in charge of her care. 4 Q. How many times did Dr. Haluska see her that 5 evening? 6 A. Apparently once. 7 Q. Where did you get that idea? 8 A. I think from his deposition. 9 Q. Are you going to be rendering testimony against 10 Dr. Ryder in this case? Did I hear you say that? 11 Toby, I'm going to object to any testimony 12 against Dr. Ryder. Obviously there's nothing in 13 his report. 14 MR. HIRSHMAN: Yes, there is. 15 Why don't you just read the report. He 16 talks about physicians. 17 MS. REINKER: Well, I'm going to 18 object to any testimony about Dr. Ryder but 19 let's hear it if there's going to be any. 20 MR. HIRSHMAN: It says right 21 here, Susan. "My criticism of this case 22 comes down to the failure of the treating 23 physicians to consider." 24 Q. Well, I'm going to object. He's not mentioned in 25 the report. You know what the local rule is; 62 1 but, doctor, I'd like to hear what your 2 criticism -- 3 MR. RUF: Wait a minute. The 4 local rule talks about issues. It doesn't 5 say -- 6 MR. HIRSHMAN: Mark, calm down. 7 Let her ask the question and we'll go from 8 there. We don't have to get upset about 9 it. 10 Q. I'd like to know, sir, what your testimony will 11 be as to Dr. Ryder. 12 A. Well, I mean, he was in charge of this lady when 13 he came on duty at sometime in the morning, eight 14 or nine o'clock and never got a report about her, 15 apparently, never examined her and basically he 16 didn't know anything about her. 17 Q. Where did you get that idea? 18 A. From his deposition. 19 Q. Any other criticisms you're going to have of 20 Dr. Ryder? 21 A. I can't think of any. 22 Q. Do you know what time Dr. Ryder came on duty that 23 morning? 24 A. Not from memory; but if you want, I'll flip 25 through the pages and see where I can find that. 63 1 I had the sense it was eight or nine in the 2 morning. Maybe it was seven, but it was sometime 3 in the morning. Let's see. 4 MR. HIRSHMAN: I think it's nine. 5 A. I think so, too. 6 I know that he never examined the patient and 7 that he testified no doctor saw the patient from 8 2:25 when she was admitted to the CDU until she 9 arrested and died around 1:00. In other words, 10 this patient, who as yet has not been settled out 11 as to what's going on with her, was his 12 responsibility during his watch, so to speak, so 13 that's why I have a criticism of him. I'm still 14 trying to find what time he came in. 15 MR. HIRSHMAN: It's on Page 5, 16 doctor. 17 A. Page 5. 18 MR. HIRSHMAN: Lines 7 through 19 10. 20 A. Yes. 9:00, that's right. 21 Q. Is there anyone else you're going to be 22 testifying against, any other Kaiser Ohio 23 Permanente employees? 24 A. Well, let's put it this way: I have an opinion 25 about the nursing care. That's not physician 64 1 stuff, but that's Kaiser stuff. 2 Q. And I presume that's a negative one, too; is that 3 correct? 4 A. You would be correct with your presumption. 5 Q. What criticisms, again, I will object to them, 6 but what criticisms are you going to raise 7 against the nurses? 8 A. I think the nurses, first of all, had no idea 9 about patients with dissections, first of all. 10 Secondly, they weren't for that reason in a 11 position to evaluate her complaint of back pain, 12 putting it in the context of her whole picture, 13 namely chest and back pain together and so they 14 were missing the boat as well probably based on 15 inadequate training and preparation to deal with 16 this kind of a patient. 17 Q. To deal with what kind of a patient? 18 A. Someone who had a dissection. 19 Q. What percent of patients who present to emergency 20 rooms have dissections, do you have any idea, 21 turn out to have dissections? 22 A. You asked me that before and I wasn't able to 23 give you an answer for that. 24 Q. You said you did roughly -- how many CABG 25 surgeries have you done so far this year? 65 1 A. I'm sorry? 2 Q. How many CABG surgeries have you done so far this 3 year? 4 MR. HIRSHMAN: You asked him 5 that, too. 6 A. You asked me that. 7 Q. I can't remember the answer. What was it? 8 A. A couple of minutes ago you asked the question. 9 It was zero. None. 10 Q. Are you intending to come to Cleveland to 11 testify? 12 A. If necessary, I will. 13 Q. I mean, we're not going to be going out there to 14 videotape you. You will be here? 15 A. As far as I'm concerned, yes. 16 Q. Are there any other opinions that you intend to 17 render against anyone employed by Kaiser who had 18 contact with Mrs. Broncaccio? 19 A. I don't think so. 20 Q. Are there any other opinions that you intend to 21 render in this case on any subject? 22 A. Gosh, without reviewing everything we've said so 23 far, I have a sense that we've talked about 24 everything that I have an opinion about. 25 Q. You think all of the nurses who cared for this 66 1 patient were inadequately trained and fell below 2 standards? 3 A. Well, let me put it this way: I think they all 4 missed the boat with this lady probably because 5 of inadequate preparation and training to deal 6 with somebody who had this sort of trouble. 7 Q. That may be all I have for you, sir, unless there 8 is anything that you know you are going to be 9 testifying about that I might have missed. 10 A. Well, as you heard me say a moment ago, that's 11 all I can think of. 12 If I review this deposition and find, oh, my 13 gosh, I forgot such and such a thing, that's 14 conceivable but I think it's unlikely. 15 Q. Just so I'm clear again, you feel that virtually 16 everybody who had any contact with 17 Mrs. Broncaccio on December 7th and 8th fell 18 below standards? 19 A. Yes. 20 Q. Give me a chance here to review my notes and I 21 will get back to you, okay? 22 A. Okay. Can I ask you a question? 23 Q. Sure. 24 A. Is it your desire that I should send you a 25 statement for this time? 67 1 Q. Whatever Mr. Hirshman wants you to do. I just 2 get billed for your deposition time here. 3 A. That's what I'm talking about. 4 Q. Okay. That's fine. Okay. Hold on. 5 Doctor, have your privileges ever been 6 suspended at any institutions? 7 A. No. 8 Q. Have you ever been denied malpractice insurance? 9 A. No. 10 Q. Has your coverage ever been reduced or put into 11 question? 12 A. No. 13 Q. Have your privileges at any institution ever been 14 limited? 15 A. No. 16 Q. Has your license ever been investigated or 17 suspended? 18 A. No. 19 Q. Have you ever been asked to resign from any 20 professional organizations? 21 A. No. 22 Q. Have you ever been disciplined, particularly for 23 your testimony or for things you have testified 24 about by any professional organizations? 25 A. No. 68 1 Q. Okay. I'm going to keep looking at my notes 2 here. 3 Dr. Hill has been the only partner you've 4 been associated with since you went into 5 practice? 6 A. Well, he has been the only consistent partner 7 over the years. There was a third cardiac 8 surgeon partner who was in the practice when I 9 joined in April of 1979 by the name of Bob 10 Szarnicki, spelled S-Z-A-R-N-I-C-K-I, and 11 Dr. Szarnicki left the practice in 1986 to become 12 a solo guy himself; but since 1986 it has just 13 been Dr. Hill and I until October, 2000. 14 Q. I gather that the opinions you've been rendering 15 in this case are from the perspective of a 16 cardiothoracic surgeon? 17 A. Yes. 18 Q. And you have no idea, the case you testified in 19 Cleveland about, what was the subject of that 20 case? 21 A. I don't recall. 22 Q. Do you think that Mrs. Broncaccio's nausea, 23 vomiting and diarrhea had anything to do with 24 her, with what turned out to be an aortic 25 dissection? 69 1 A. I think it's quite possible. 2 Q. Do you think it's equally possible that she had 3 an independent gastrointestinal problem? 4 A. No, I don't think that's the case at all. 5 Q. Do you have any opinion what caused the diarrhea? 6 A. I'd suspect it was transient ischemia to the 7 inferior mesenteric artery. 8 Q. You agree that the autopsy finds no problem with 9 the vascular supply to the bowel? 10 A. I did read that and that's why I believe it was a 11 transient event, not one that occluded the 12 inferior mesenteric or superior mesenteric or 13 celiac axis but one which quite possibly briefly 14 narrowed the arteries involved resulting in 15 transient ischemia to the intestine. 16 Q. Do you agree that diarrhea is not usually thought 17 of as a symptom of an aortic dissection? 18 A. Correct. I would agree with that. 19 Q. And that nausea and vomiting are not usually 20 thought of as symptoms of aortic dissection? 21 A. Well, it depends on the company they keep. If 22 it's in combination with a good story, which I 23 believe was here in this case, then it's 24 consistent; but by itself in the absence of any 25 other symptoms, it would not be typical. 70 1 Q. And you would agree that in the list of symptoms 2 in the textbooks of aortic dissection, nausea and 3 vomiting are not usually included as classic 4 symptoms? 5 A. They wouldn't be in the top three, that's for 6 sure. 7 Q. You would agree, I would gather, that this is an 8 atypical, an unusual presentation for an aortic 9 dissection? 10 A. No. 11 Q. You think this is a usual presentation? 12 A. I'd say this is a fairly standard approach, a 13 standard presentation. 14 Q. Do you know of any literature that would support 15 your viewpoint that this picture that 16 Mrs. Broncaccio presented with is a standard 17 presentation for an aortic dissection? 18 A. Well, the standard textbooks talk about the 19 relationship of chest pain and back pain. She 20 had them both. That represents a pretty typical 21 presentation. 22 Q. The standard textbooks talk about severe chest 23 pain and back pain, do they not? 24 A. I wouldn't know if that's quite the way it's 25 described in the standard textbooks. I think we 71 1 have to look at individual textbooks and be more 2 specific. 3 Q. What textbooks would you suggest I look at to 4 find an answer to that question? 5 A. Well, I'd say that Gibbons' Surgery of the Chest 6 is a good one. I would say that Sabiston's 7 textbook in cardiovascular surgery is a good one. 8 I would say the Atlas of Thoracic Surgery by 9 Urschel and Cooper is a good one. I would say 10 the textbook of The Surgery of the Aorta and Its 11 Branches, which is authored by a bunch of people 12 including Brewster and Cambria is a good one. 13 Q. Anything else you can think of? 14 A. I think that pretty much does it. 15 MS. REINKER: Okay. I have 16 nothing further, sir. Thank you. 17 THE WITNESS: Thank you. 18 MR. RUF: Thanks, doctor. Toby, 19 could you give me a call. 20 MS. REINKER: We are requesting 21 this written, by the way. 22 MR. HIRSHMAN: Pardon me? 23 MS. REINKER: I am requesting this 24 written. 25 MR. HIRSHMAN: All right. 72 1 MS. REINKER: Thank you. 2 - - - - 3 (Thereupon, a discussion was had off 4 the record.) 5 - - - - 6 MR. HIRSHMAN: She's going to ask 7 you if you want to read or waive and I have 8 no problem with you waiving signature. 9 THE WITNESS: I have no problem 10 waiving signature. I would like to get a 11 copy of it so I can read it. 12 (Signature waived.) 13 14 15 16 17 18 19 20 21 22 23 24 25 73 1 2 C E R T I F I C A T E 3 4 The State of Ohio, ) SS: 5 County of Cuyahoga.) 6 I, Pamela S. Greenfield, a Notary Public within and for the State of Ohio, authorized to 7 administer oaths and to take and certify depositions, do hereby certify that the 8 above-named G. JAMES AVERY, II, M.D. was by me, before the giving of his deposition, first duly 9 sworn to testify the truth, the whole truth, and nothing but the truth; that the deposition as 10 above-set forth was reduced to writing by me by means of stenotypy, and was later transcribed 11 into typewriting under my direction; that this is a true record of the testimony given by the 12 witness, and the reading and signing of the deposition was expressly waived by the witness 13 and by stipulation of counsel; that said deposition was taken at the aforementioned time, 14 date and place, pursuant to notice or stipulation of counsel; and that I am not a relative or 15 employee or attorney of any of the parties, or a relative or employee of such attorney, or 16 financially interested in this action. 17 IN WITNESS WHEREOF, I have hereunto set my hand and seal of office, at Cleveland, Ohio, this 18 _____ day of _________________ A.D. 20 _____. 19 20 _________________________________________________ 21 Pamela Greenfield, Notary Public, State of Ohio 1750 Midland Building, Cleveland, Ohio 44115 22 My commission expires June 30, 2003 23 24 25 74 1 W I T N E S S I N D E X 2 PAGE CROSS-EXAMINATION 3 G. JAMES AVERY, II, M.D. BY MS. REINKER......................... 3 4 5 E X H I B I T I N D E X 6 EXHIBIT MARKED 7 Avery Exhibit 1, 8 six-page CV........................... 11 9 Avery Exhibit 2, two-page 1/12/00 report............... 37 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25