0001 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 -----------------------X 4 C. JEAN THOMPSON, etc. : 5 Plaintiffs : 6 vs. : Case No.: 7 MARK MELAMUD, M.D., : CV 07 622712 8 et al. : 9 Defendants : 10 -----------------------X 11 Deposition of GRANT VINCENT BOCHICCHIO, M.D. 12 Baltimore, Maryland 13 Thursday, July 31, 2008 14 12:09 p.m. 15 16 Job No.: 26-132990 17 Pages 1 - 86 18 Reported By: Beatriz D. Fefel, RPR 19 20 21 22 23 24 25 0002 1 Deposition of GRANT VINCENT BOCHICCHIO, 2 M.D., held at the offices of: 3 4 5 6 UNIVERSITY OF MARYLAND MEDICAL CENTER 7 22 South Greene Street 8 R. Adams Cowley Shock Trauma Center 9 Third Floor, Conference Room T3R85 10 Baltimore, Maryland 21201 11 (410) 328-6566 12 13 14 15 Pursuant to agreement, before Beatriz D. 16 Fefel, Registered Professional Reporter and Notary 17 Public of the State of Maryland. 18 19 20 21 22 23 24 25 0003 1 A P P E A R A N C E S 2 3 ON BEHALF OF THE PLAINTIFFS: 4 HOWARD MISHKIND, ESQUIRE 5 BECKER & MISHKIND CO., L.P.A. 6 1660 West 2nd Street 7 Skylight Office Tower, Suite 660 8 Cleveland, Ohio 44113 9 (216) 592-8796 10 11 ON BEHALF OF THE DEFENDANTS: 12 STEVEN J. HUPP, ESQUIRE 13 BONEZZI SWITZER MURPHY POLITO & HUPP CO., 14 L.P.A. 15 1300 East 9th Street 16 Suite 1950 17 Cleveland, Ohio 44114-1501 18 (216) 875-2767 19 20 21 22 23 24 25 0004 1 C O N T E N T S 2 3 EXAMINATION OF GRANT VINCENT BOCHICCHIO, M.D. PAGE: 4 By Mr. Hupp 5 5 6 7 E X H I B I T S 8 (Attached to the transcript.) 9 DEPOSITION EXHIBITS PAGE: 10 A Bochicchio Curriculum Vitae 5 11 B Bochicchio report 5 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0005 1 P R O C E E D I N G S 2 (Deposition Exhibits A & B were premarked 3 for identification and attached to the transcript.) 4 GRANT VINCENT BOCHICCHIO, M.D. 5 having been duly sworn, testified as follows: 6 EXAMINATION BY COUNSEL FOR THE DEFENDANTS 7 BY MR. HUPP: 8 Q Please state your full name for the record. 9 A Grant Vincent Bochicchio. 10 Q I represent Doctor Melamud in this case. 11 I'll be taking your deposition today. 12 You've been through this process several 13 times, I suspect? 14 A Yeah, about -- you know, somewhere within 15 five to ten in the last five years or so. 16 Q Okay. Well -- 17 A A couple years, I guess. 18 Q -- let me give you the ground rules. Let's 19 promise each other not to talk over each other. Let 20 me complete my question, then you provide the answer. 21 If you don't understand a question I ask, just tell me 22 and I'll attempt to rephrase it. If at any time you 23 need a break, just tell me and we'll take a break. 24 A Okay. 25 Q To start off with, I've marked your 0006 1 current C -- well, what I believe is your current CV 2 as Exhibit A. It's thirty-three pages. Is that 3 current? 4 A As of May. Because my CV tends to update 5 monthly, so there are copies that go. But for the 6 most part for this, this is fine. 7 Q Okay. So this is -- the date is 5/7/08, 8 that's as of that date? 9 A Correct, as of -- 10 Q Is there -- 11 A -- that date. 12 Q -- anything you've done since 5/7/08 that 13 needs to be added to your CV? 14 A There are probably other accepted 15 publications or something like that, but, you know, 16 that's -- for the most part it's right. 17 Q I'm going to call this letter your expert 18 report in this case. I'm marking that as Exhibit B. 19 Is that the first and only expert report you've ever 20 written in this case? 21 A Yes. 22 Q Do you have any other drafts of that report 23 or any other notes or any other writings -- 24 A No. 25 Q -- that you've ever created in this case? 0007 1 A No. 2 Q And you never created any notes while 3 reviewing the materials, correct? 4 A The only thing I've done, as you can see, 5 that I've highlighted a few things on the depositions, 6 but no notes. 7 Q Okay. I was allowed -- I had the chance to 8 review your CV prior to starting today. Would it be 9 fair to call you a trauma surgeon? 10 A Well, yes, that's part of what I do. 11 Q Okay. 12 A I'm also Vice Chief of Surgery and Chief of 13 Surgical Critical Care at the Baltimore VA, so I do 14 everything. I'm one of the few people in the country 15 that, A, do trauma, I'm a trauma expert. I'm also a 16 critical care expert. I also do -- I'm an expert in, 17 in endoscopy. I'm an expert in -- I do every advanced 18 surgical procedure at the VA. I do minimally invasive 19 surgery at the VA, all the advanced cases. I'm kind 20 of the one who does the most advanced stuff. So, and 21 I still do pretty much everything except for endocrine 22 surgery. 23 Q Okay. So critical care, trauma, endoscopy, 24 and then I'm assuming some general surgery on top of 25 all that? 0008 1 A Yeah, a -- 2 Q Is that non -- 3 A -- significant amount of general surgery. 4 Q Is that nontraumatic general -- 5 A Correct. 6 Q -- surgery? 7 A So part of my practice is, you know, 8 ventricle hernias, inguinal hernias, laparoscopic 9 cholecystectomy, whipples. I do bil -- advanced 10 biliary reconstruction, hepatobiliary surgery, any 11 type of laparoscopic surgery. I even do thoracoscopic 12 surgery in the chest. I can continue, but it kind of 13 gives you a good feel. 14 Q Okay. Could you break down your practice in 15 terms of the critical care versus trauma versus 16 endoscopy versus the general surgery aspects? 17 A I work typically a hundred-hour week in 18 which I would say about forty hours of that is 19 dedicated to research, sixty percent is dedicated to 20 clinical practice in which there's a little bit -- 21 it's probably like an equal mix of everything. The 22 critical care sometimes is -- you know, I end up doing 23 maybe a week a month of critical care as my practice, 24 but I'm also the ICU director so I do administrative 25 stuff on that. And then the rest is broken up into 0009 1 the procedures that I do. 2 Q All right. So your sixty hours a week that 3 are clinical -- 4 A Yeah. 5 Q -- you said one week a month in critical 6 care? 7 A Yeah. 8 Q Would that be actual on-the-floor critical 9 care? 10 A That's taking care of ICU patients. 11 Q And which hospital is that at? 12 A That's at the Baltimore VA as well as 13 sometimes over here on the trauma center. 14 Q And how many hours a week do you work doing 15 trauma work? 16 A Well, that all, kind of all depends on the 17 week. So I'll work -- for instance, if I'm on call 18 I'll work forty or fifty hours straight, and so that's 19 almost a week for the normal person, but for me that's 20 actually just a day for me. So I'll be on call Monday 21 morning, not go home until Tuesday night, and then 22 Wednesday I'm back doing -- here back at seven a.m. 23 Q What percentage of your time is devoted to 24 endoscopy? 25 A Endoscopy is probably fifteen, twenty 0010 1 percent. 2 Q And fifteen to twenty percent of the 3 clinical aspect? 4 A Yeah, somewhere around there. That kind of 5 goes up and down based on -- there are days where I'll 6 do, you know, weeks I'll do at a time, and there are 7 other weeks that I won't do any. It all kind of 8 depends on where I'm at and what I'm doing. 9 Q And break down the col -- the endoscopy, if 10 you can, which types of procedures? 11 A I do upper endoscopy, percutaneous 12 endoscopic gastrostomy and colonoscopy. 13 Q How many colonoscopies have you performed in 14 your career? 15 A Anywhere between five hundred and a 16 thousand. 17 Q And how many do you do on a yearly basis? 18 A Right now I would say probably about a 19 hundred. 20 Q And where do you -- where do you get these 21 patients referrals for the colonoscopy? 22 A Well, just because I'm Vice Chief of Surgery 23 at the VA and I do all of the intraoperative 24 colonoscopies, they're not really referrals, they're 25 just our patients. 0011 1 Q Do you do outpatient colonoscopy? 2 A I do outpatient colonoscopy. 3 Q And are these diagnostic as well as 4 therapeutic colonoscopies? 5 A Currently I'm only doing diagnostic, just 6 because of a -- the -- there are some issues with 7 getting the equipment for what we need. It's the VA. 8 Q And do you do all of your colonoscopies at 9 the VA Hospital? 10 A I do some here as well. 11 Q The forty hours or so a week you do 12 research, what are your topics or areas of research? 13 A Pretty much everything. Anything in the 14 area of critical care trauma, general surgery. I have 15 active studies, and you can refer to my CV as far as 16 what are the studies. It would take me a year to get 17 through all that. 18 Q The areas that you publish in appear to be 19 mostly trauma? 20 A Well, it's -- the underlining tone is -- 21 there's a lot of trauma in there and I'm considered a 22 national expert in infection. I'm also in the 23 Surgical Infection Society, I'm part of their -- the 24 committee that are actually the expert panel to make 25 guideline decisions on how to treat surgical 0012 1 infections. So that's kind of what my -- a lot of my 2 stuff is involved in, as well as other aspects of 3 general surgery like hernias and endoscopy as well. 4 So several, several publications in upper endoscopy as 5 an expert in that area. 6 MR. HUPP: Off the record a second. 7 (Discussion off the record.) 8 BY MR. HUPP: 9 Q In terms of your teaching, do you have an 10 academic appointment? 11 A Yes, I have multiple. 12 Q Where do you have your appointments at? 13 A I am a full tenured professor at the 14 University of Maryland School of Medicine and I'm an 15 adjunct assistant professor at Johns Hopkins School of 16 Medicine. 17 Q And do you actually teach at Johns Hopkins? 18 A Currently I work in their what's called 19 Point of Care Center in which I work with the Hopkins 20 antibiotic guide, and currently I'm in the process of 21 being the, the -- I'm the executive editor of the 22 surgical critical care guide. 23 Q What is your -- at University of Maryland, 24 do you have a, an academic appointment? 25 A Full professor. 0013 1 Q As of 2008? 2 A Yeah. As of this July, yes. 3 Q Okay. And do you do resident teaching here? 4 A Yes. 5 Q General surgery residents? 6 A Yes. 7 Q And Fellows? 8 A And Fellows. 9 Q Fellows in what areas? 10 A In critical care, trauma, general surgery. 11 Q Have you ever had the occasion to perforate 12 a colon during a colonoscopy? 13 A No (indicating). 14 Q Okay. Have you had the occasion to treat a 15 patient with a perforated colon that was suffered 16 during a colonoscopy? 17 A Yes, multiple. 18 Q How many times? 19 A Over the course of the last how many years? 20 Q In your career. 21 A I would say I, I probably come across it at 22 least once or twice a year. 23 Q Do you always do surgery on those patients 24 with perforations? 25 A I would say that every person who I've seen 0014 1 with a perforation we have operated on. 2 Q Okay. And in terms of perforations -- in 3 this case I believe it was a point-six cm, or also 4 known as a six millimeter perforation. Is that about 5 the standard size of a perforation you've had in your 6 practice? You've seen it -- 7 A Yeah. 8 Q -- in your practice? 9 A I mean, yeah. There's -- those kind of all 10 vary depending upon the procedure and, and duration 11 and such. 12 Q Have any of the patients that you ever were 13 referred to with a perforation following a colonoscopy 14 ever gone to die? 15 A No. 16 Q Have any of those patients -- 17 (Audio interruption.) 18 THE WITNESS: If you have a BlackBerry, that 19 tends to shut it right off. 20 MR. MISHKIND: Do you want me to leave the 21 volume on, or -- 22 THE WITNESS: You can turn it off. 23 MR. HUPP: Off the record. 24 (Discussion off the record.) 25 ----------- 0015 1 BY MR. HUPP: 2 Q Okay. So of the patients that you've 3 operated on with perforations following a colonoscopy, 4 have they suffered -- have all of those patients 5 suffered from peritonitis? 6 A Yes. 7 Q Okay. When was the last such patient that 8 you operated on? 9 A I'd say probably last year. 10 Q And when is the average duration of time in 11 which following the colonoscopy that the perforation 12 is diagnosed? 13 A In my experience it's been pretty much 14 immediately. 15 Q You mean during the procedure? 16 A After the procedure. The GI -- you know, 17 within hours. The GI doctor is -- or surgeon's been 18 kind of concerned that they thought they saw something 19 either in the operating room or they felt that 20 something was off that they, that they've caught. 21 Q Have you ever operated on someone or, or had 22 a patient suffer a col -- a perforation during a 23 colonoscopy and see them twelve hours later? 24 A Twelve hours, that late? 25 Q Twelve hours after the procedure -- 0016 1 A The -- 2 Q -- was completed. 3 A Yeah. With transfers, yeah. 4 Q And what's the typical clinical course of 5 those patients? 6 A Typically when they present later they're 7 sicker because they've been exposed to contents. And 8 it all depends, though, on the, on the age of the 9 patient or co-morbidities and such, and there's a 10 broad spectrum there. 11 Q What are the signs and symptoms that you 12 would expect to see in a patient with a six millimeter 13 perforation of the distending colon twelve hours after 14 the procedure was completed? 15 A Abdominal distension, pain. 16 Q Any rigidity? 17 A They can have rigidity well -- as well. 18 Q Any other signs or symptoms? 19 A It can be plus or minus. They can plus or 20 minus have fever or other symptoms, but it all depends 21 on patients. Some patients, you know, you know, you 22 can -- they can present without a fever or any of the 23 things -- or anything like that, and it ends up being 24 a, a soft call. And there's patients -- 25 Q A what? 0017 1 A A soft call. In other words -- 2 Q What's that mean? 3 A -- they don't -- they're not -- the symptoms 4 aren't hitting you in the face as well, and that's why 5 you always have to have a high index of suspicion in a 6 patient who's abnormal at all with perforations. 7 Because I've had patients who have perforated through 8 portions of their colon and have dis -- mild 9 distension and rigidity, but they don't have a fever, 10 they don't have a white count, you know, they don't 11 have any of those symptoms. So it's, it's really on 12 the onus on the practitioner to say, you know, 13 something is not right here, you need to investigate 14 it. 15 Q What type of pain would you expect a patient 16 to experience twelve hours after a, a perforation that 17 occurred during a colonoscopy? 18 A It could be anything from sharp pain to dull 19 achiness to just not feeling right, you know. You 20 know, if it's in the left lower quadrant, it may be 21 localized into that area, where there's pain in that 22 specific area, kind of like almost appendicitis pain. 23 Q In this case is it your opinion that the 24 perforation, the actual hole in the colon occurred at 25 the procedure, or sometime after the procedure? 0018 1 A I think at the procedure. 2 Q And why do you say that? 3 A Because it was a, an invasive procedure that 4 was done. There was electro -- you know, 5 thermoregulation used in that area, and that's kind of 6 what ends up happening. And patients who have that 7 type of procedure when you're taking off a polyp 8 scenario, you're using something invasive. Those are 9 the higher risk patients because you're actually doing 10 something rather than just doing, doing a, a, a 11 screening colonoscopy. And typically when that 12 happens, you know, the perforation is created there 13 and it just, you know, with pressure may get worse 14 over time. 15 Q So, I know we're getting a little ahead of 16 ourselves, but in this case it would be your opinion 17 that when Doctor Melamud used the electrocautery to 18 take off some -- make the biopsies that he 19 performed -- 20 A Umh-humh. 21 Q -- that was when the actual hole opened? 22 A Correct. 23 Q Okay. Let me get back to your experience as 24 an expert, Doctor. 25 How many cases have you reviewed over the 0019 1 course of your career? 2 A Reviewed in what -- in which circumstance? 3 Q Medical malpractice, medical/legal cases. 4 A Medical/legal or medical malpractice as part 5 of peer review, as part of my job, or as an individual 6 consultant? 7 Q Let's hear about individual consultant and 8 then I'll talk to you about peer review. 9 MR. MISHKIND: You mean as an expert 10 witness? 11 MR. HUPP: As an expert witness that's been 12 retained by a party to review a case. 13 A Sometimes University will actually do that 14 as well, so it gets a little fuzzy there. The 15 University may actually ask me to review a case that 16 another surgeon's going to get sued for, and as part 17 of my job I review those cases. As part of my job as 18 Chief -- as Vice Chief of Surgery at the VA any risk 19 management case that's, that is peer -- there's a 20 question of being risk management I review on a weekly 21 basis. So if this were -- case were to be done by one 22 of my surgeons, it would come to me and I would review 23 it to see whether or not there was a deviation from 24 the standard of care. 25 So I do that on a weekly basis. So that's 0020 1 why you have to be clear as to exactly what you want 2 me to answer. 3 BY MR. HUPP: 4 Q All right. Well, with that explanation, I 5 want to talk to you about third parties unrelated to 6 either institution that you practice at. 7 A Okay. 8 Q How many cases have you reviewed in that 9 arena? 10 A I've reviewed over what period of time? 11 Q Your career. 12 A Career? I would say around ten, ten, 13 fifteen. 14 Q Ten total? 15 A Yeah, somewhere around there. 16 Q Okay. 17 MR. MISHKIND: He just said ten to -- 18 A Ten, to fifteen, in that area. 19 MR. MISHKIND: Ten to fifteen -- 20 A I'm not -- 21 MR. MISHKIND: -- that's what I heard. 22 A I don't really -- 23 Q Okay. So you -- 24 A -- have the -- 25 Q -- reviewed ten to fifteen medical 0021 1 malpractice cases in your career? 2 A As far as I can recollect. 3 Q All right. How many for the patient, the 4 plaintiff, versus the physician or the doctor? 5 A About fifty/fifty. 6 Q And where did you get these cases from? 7 A I get phone calls from various firms. I 8 could say the most, the most recent one I reviewed was 9 from a firm in Philadelphia where they looked on the 10 Internet, saw my publications, and they called the 11 office. 12 Q Do you advertise your services as a medical 13 expert? 14 A No. 15 Q And you don't belong to any organizations 16 that provided -- that provide your name to attorneys? 17 A No. 18 Q How many depositions have you given as a 19 medical expert, like what we're doing today? 20 A Pretty much the same number. 21 Q Ten to fifteen? 22 A Yeah, somewhere in there. 23 Q And, again, for the patient/plaintiff versus 24 the -- 25 A Yeah, somewhere about the same mixture. 0022 1 Q Fifty/fifty? 2 A Yeah. Because most of these, they all go to 3 deposition, and in deposition that ends up working 4 out. 5 Q Have you ever testified at trial? 6 A I haven't actually -- when you say testified 7 at trial -- 8 Q Physically in a courtroom. 9 A Unrelated to my job? 10 Q Correct. 11 A I testify frequently based on you're a 12 trauma patient and you killed somebody and I took care 13 of you and I have to testify. So I do that regularly. 14 Q In a criminal context? 15 A In a criminal content. 16 Q Okay. 17 A As far as -- I have never appeared live in a 18 trial, is the answer to that. I have videotaped a 19 few. 20 Q How many? 21 A I think two. 22 Q When is the last one you did? 23 A I think about a year ago. 24 Q And name a defense firm that you've worked 25 with in the past. 0023 1 A Oh, jeez. 2 Q Name a plaintiff's firm you've worked with 3 in the past. 4 A Eckert & Seamans. 5 Q Where are they at? 6 A Philadelphia, Pittsburgh, Pennsylvania. 7 Q You can't remember any defense lawyers that 8 have retained you? 9 A I'm not good with, with names. 10 Q How much do you charge to review a case? 11 A I charge five hundred dollars an hour for 12 review. 13 Q And how much for deposition? 14 A Fifteen hundred. 15 Q Is that a flat fee? 16 A Correct. 17 Q So if we go six hours today, fifteen 18 hundred? 19 A That's right. 20 Q Okay. If I go two hours, it's fifteen 21 hundred? 22 A That's right. 23 Q How many -- for trial, live trial testimony, 24 if you have to do that, any idea how much you charge? 25 A I think it's ten thousand. 0024 1 Q And videotaped trial testimony? 2 A I think it's five. 3 Q What percentage of your yearly income is 4 earned doing medical/legal work? 5 A One percent, a half percent. It's not much. 6 Q Have you ever worked with the firm of 7 Becker & Mishkind in the past? 8 A No. 9 Q How did Mr. Mishkind get your name in this 10 case, if you know? 11 A One of his nurses that works for him called 12 me. 13 Q Okay. Have you ever reviewed cases for any 14 firm in Ohio? 15 A Yes. 16 Q Do you remember the name of the firm? 17 A No. 18 Q Was that -- was there only one other Ohio 19 case you reviewed? 20 A I would say that the total Ohio cases maybe 21 three, four, five, in that area. And I can't 22 necessarily remember -- I can tell you what he looks 23 like. 24 Q That's okay. I have the one deposition that 25 my partner took of you so I was trying to think of the 0025 1 name of the Plaintiff's firm, but I can't. 2 MR. MISHKIND: See, you can't even remember. 3 MR. HUPP: I know, that's tough. 4 BY MR. HUPP: 5 Q In terms of your work with the hospital now, 6 peer reviews, reviews of the care and treatment 7 around -- at either facility, both facilities? 8 A Yes. 9 Q Okay. And what is your position or title 10 when you're doing that function? 11 A At the VA, because I'm Vice Chief of 12 Surgery, I'm the senior-most surgeon there, so the- 13 buck-stops-there kind of is where I -- my, my role 14 over there is. So anything that happens comes to me. 15 As far as at University here goes, they, they take 16 turns randomly assigning any type of peer review case 17 to each of the surgeons on staff, so that I -- I'm in 18 part of the committee in there. 19 Q Now, those cases that you're talking about, 20 those aren't -- are those legal cases that have been 21 filed, or just events that have occurred? 22 A They are events that can have a high risk of 23 probability for legal. 24 Q Okay. And do you deal with the gen -- 25 A So it's part of risk management. 0026 1 Q And do you deal with the general counsel for 2 the hospital, or one of the -- 3 A If it goes to the extreme, yes. 4 Q You've never testified for the hospital, I'm 5 assuming, in that regard, have you? 6 A I have taken -- I have been deposed in -- on 7 behalf of the hospital for other surgeons, yes. 8 Q Have you personally ever been sued for 9 medical malpractice? 10 MR. MISHKIND: Objection. But go ahead. 11 A Have I been sued? Yes, but everyone has 12 been dropped. 13 Q How many times have you been sued? 14 MR. MISHKIND: Just showing a continuing 15 line of objection so I don't have to interrupt. But 16 go right ahead, Doctor. 17 A I would say two or three, somewhere in 18 there. 19 Q And in these -- in both of these cases, were 20 you employed by this hospital, University of Maryland? 21 A I was a resident when one other one 22 happened. I wrote a Cipro order on a patient and my 23 name was on the chart. I was -- I got named in the 24 case. 25 Q Okay. The other two cases, were you -- 0027 1 A Were here, yes. 2 Q -- an attending? 3 A Correct. 4 Q And what happened in those two cases? 5 A Both were, I guess, dropped. You know, I 6 was dropped from it. 7 Q No. What's the nature -- what was the 8 nature of the claim against you? What, what were they 9 claiming you did incorrectly in those two cases? 10 A That I discharged a patient too early. But 11 I actually wasn't the physician who discharged the 12 patient. 13 Q And what about the other case? 14 A The other patient here was -- I think a 15 sponge was left in the patient, but it wasn't me. 16 Q The sponge count was correct? 17 A Well, the sponge count was correct, but I 18 wasn't the surgeon. So I was part of the surgical 19 team that rotates, but it wasn't me that actually was 20 the one who operated on the patient at the time that 21 had the sponge left in them. 22 Q All right. Now I want to talk about what 23 you reviewed in this case. First off, I want to know 24 everything you reviewed before writing your report 25 which is Defendant's Exhibit B. 0028 1 A I would say it's this folder (indicating). 2 Q Okay. Describe for the record what that is. 3 A What this folder is, it's a folder that 4 contains an index of medical records as related to the 5 endoscopy by Doctor Melamud and the events that led up 6 to his death. 7 Q Including the autopsy? 8 A Including the autopsy. 9 Q Okay. 10 MR. MISHKIND: And, Steve, just for your 11 benefit, he also did have copies of the deposition 12 transcripts. 13 MR. HUPP: Well, we're -- I was going to get 14 to that. 15 MR. MISHKIND: Right. But, I mean, he said 16 that it was this that he reviewed before -- 17 MR. HUPP: No, I'm not, I'm not done with 18 that. That's fine. 19 MR. MISHKIND: Okay. 20 BY MR. HUPP: 21 Q So, Doctor, aside from the review of the 22 medical record that you've identified, which I think 23 is South Pointe Hospital records plus the autopsy? 24 A Yes. And the reason why I didn't mention 25 this is I wasn't sure when I actually saw these, so I 0029 1 can't -- I know when I wrote this, that this is what I 2 looked at. 3 Q Okay. 4 A I'm not a hundred percent positive, but I 5 saw this. 6 Q "This" and "this" don't, don't work too well 7 on the record? 8 A Okay. 9 Q You're for sure that you reviewed prior to 10 writing Defendant's Exhibit B the medical records -- 11 A Correct. 12 Q -- in this case? 13 Now the question is do you know if you 14 reviewed any deposition testimony at the time you 15 wrote Defendant's Exhibit B? 16 A That I don't recollect. 17 Q Okay. When did you review the depositions 18 of Doctor Mark Melamud, Parts 1 and 2, and the 19 deposition of Jean Thompson? 20 A It could have been at the time when I 21 wrote -- when I saw that or afterwards, but I just 22 don't remember. 23 Q So aside from the medical records and aside 24 from those three depositions, do you have any other 25 records or reports in this case? 0030 1 A I do now have copy -- I have copies of 2 summaries and, and CVs of Poleski, Senagore, and 3 Charles Wetli. 4 Q Okay. Did you ever see Doctor Todd -- 5 MR. MISHKIND: Eisner. 6 Q -- Eisner? 7 MR. HUPP: Is that Eisner? 8 MR. MISHKIND: Eisner, yes. 9 A I saw Doctor Todd Eisner's report just 10 earlier this morning. 11 BY MR. HUPP: 12 Q Okay. So you have seen all of the other 13 expert reports in this case -- 14 A Correct. 15 Q -- correct? 16 And that's -- you have Doctor Senagore's CV? 17 A Yes. 18 Q Is there anything else you reviewed in this 19 case, even up 'til today? 20 A This is it, right here what I have. Right 21 here. 22 Q Okay. Any medical literature or medical 23 textbooks you've ever reviewed in this case up until 24 today? 25 A No. 0031 1 Q Are there any medical texts or literature 2 that you would point to to support your opinions in 3 this case? 4 A No. 5 Q Are there any medical texts or literature 6 you would intend to rely on at the time of trial? 7 A At this point I would probably say no 8 because I think it's a common sense question. 9 Q For a physician it may be. For attorneys 10 sometimes we tend to use literature and textbooks. So 11 towards that end, I'm going to ask this question. 12 What medical or surgical textbooks would be 13 reasonably reliable in the field of general surgery 14 that would address the issues in this case? 15 MR. MISHKIND: Objection. But go ahead. 16 A I, I guess -- you know, I guess, you know, 17 standard surgical textbooks as far as colon 18 perforation would be reasonable, like Schwartz or 19 Cameron or something like that. But I'm at, kind of 20 at the point now that I don't -- you know, I write the 21 book, I don't read it. 22 Q I understand that. But are there textbooks 23 or -- that your Fellows or residents use at this 24 facility? 25 A Yes. 0032 1 Q Okay. What are -- 2 A Greenfield. 3 Q -- the names -- 4 MR. MISHKIND: Objection. But go ahead. 5 A Greenfield's textbook of surgery. 6 Q Is that the textbook that's used at 7 University of Maryland? 8 A Yes. 9 Q Okay. And is that an authoritative or -- 10 textbook or a reasonably reliable textbook? 11 MR. MISHKIND: Objection. 12 A Yes. 13 Q Are there any other textbooks in the field 14 of general surgery that you could point to saying it's 15 reasonably reliable or authoritative? 16 A Cameron. 17 Q What's the name of that? What's the title 18 of Cameron's text? 19 A Surgical something. We all call it 20 Cameron's, so I don't know. 21 Q Are there any medical journals or literature 22 that you read on a regular basis? 23 A I read a variety of journals, but it's 24 more -- not specifically for the journal. I look at 25 it for the -- for what the specific pathophysiology 0033 1 I'm looking for. 2 Q And so this case really wouldn't lend itself 3 to any journals? 4 A No, because it's common sense. 5 Q Okay. And, and, and you keep saying it's 6 common sense. It's because it's peritonitis in your 7 opinion following a perforation? 8 A Yeah. It's kind of standard things that we 9 teach residents on a day-to-day basis. You don't go 10 to the literature to say, to say this is kind of 11 common sense. 12 Q Have we now discussed all of the materials 13 you've reviewed in this case from the day you received 14 it up until today? 15 A Correct. 16 Q I'm going to ask you some opinions, Doctor, 17 and you can either tell me you do have an opinion or 18 you don't have an opinion. 19 A Okay. 20 Q That's what I want you to know right now. 21 Do you have an opinion regarding the 22 indications of Mr. Thompson's colonoscopy? 23 A Do I have an opinion. . . 24 Q Maybe I can rephrase it for you. And you 25 just answer any way, any way you wish. 0034 1 Would you agree that Mr. Thompson's 2 colonoscopy in 2004 was indicated? 3 A Yes. 4 Q Because he had rectal bleeding, correct? 5 A Correct. 6 Q Would you agree that Doctor Melamud 7 correctly performed Mr. Thompson's colonoscopy within 8 the standard of care? 9 A Yes. 10 Q And would you agree that a polypectomy that 11 Doctor Melamud performed was within the standard of 12 care? 13 A Doing a polypectomy, yes. 14 Q Okay. Now, you're aware, Doctor, obviously, 15 that not all of the tissue that was obtained from the 16 colonoscopy was polypoid tissue, correct? 17 A Yeah, I think there was a question of the 18 one area being normal mucosa and whether or not that 19 was a polyp or not, and that could be debatable based 20 on if you do see, you know, you know, a polyp and you 21 think somebody has what looks like a polyp and you 22 excise it, you know, was it really a polyp or not. 23 Well, that really becomes something that you, you 24 know, you can make a decision when you're at the 25 procedure. So did you resect a polyp that really 0035 1 wasn't there, you know. It may have looked like one. 2 It's hard for me to kind of comment on that unless it 3 was quite obvious. If there's like, you know, a 4 videotape of the colonoscopy that you could look at 5 and say oh, jeez, that really clearly is not a polyp, 6 why did you take that out. 7 Q Umh-humh. So you will not testify that 8 Doctor Melamud breached the standard of care when he 9 perform the polypectomy which in retrospect turned out 10 not to be polypoid tissue? 11 A Correct. 12 Q Okay. Will you also agree that the 13 perforation that occurred in this case was a known and 14 unavoidable complication? 15 A I wouldn't say the word unavoidable. I 16 would say it's a known complication. 17 Q Okay. Is it your opinion that Doctor 18 Melamud breached the standard of care by causing the 19 perforation in this case? 20 A No. 21 Q Is it your opinion that Doctor Melamud met 22 the standard of care even though a perforation 23 occurred during his colonoscopy? 24 A At that time, yes. 25 Q Why do you -- why do you qualify to say at 0036 1 that time? 2 A Because there's a difference of the 3 procedure and the subsequent management. 4 Q Sure. We're going to get to that. 5 A Okay. 6 MR. MISHKIND: That's why he answered your 7 question that way. 8 MR. HUPP: Right. 9 BY MR. HUPP: 10 Q I, I -- I'm just trying to work through the 11 areas of agreement and at one point we're going to 12 disagree on something. 13 A Okay. 14 Q Clear -- 15 MR. MISHKIND: Quite frankly, though, your 16 question implied standard of care across the board and 17 that's why he answered it that way. 18 MR. HUPP: Fair enough. 19 BY MR. HUPP: 20 Q Did there come a point in time in which in 21 your opinion -- well, before we get there. 22 Would you agree that it was acceptable and 23 within the standard of care to discharge Mr. Thompson 24 from the hospital following his colonoscopy? 25 A Yes, based on nursing assessment the patient 0037 1 had no complaints at all, it was passing gas and was 2 totally appropriate to discharge. 3 Q Did there come a point in time in which in 4 your opinion Doctor Melamud breached the standard of 5 care? 6 A Yes. 7 Q And when did Doctor Melamud breach the 8 standard of care in your opinion? 9 A He breached the standard of care -- and my 10 opinion is based on, you know, you have a -- and allow 11 me just to kind of expand a little bit. 12 Q Yes. 13 A You have a, a significant duration of time 14 in a phone call with complaints of persistent pain, 15 the lethargy, and abdominal distension, and at that 16 time the standard of care should have been go to the 17 emergency room. The breach is, A, you're taking a 18 patient now who is at high risk, in my opinion now, 19 for a perforation because his exam's clearly changed 20 from the time of discharge to that time. And now, in 21 addition, you add insult to injury by you doing an 22 invasive procedure, which is an enema, which to me is 23 a gross deviation from the standard of care because 24 now you're taking a patient who you have to worry 25 about having a perforation and now you're telling them 0038 1 to institute volume and pressure to blow the hole even 2 bigger, and clearly that's a deviation of the standard 3 of care. 4 Q In your case it is your opinion that Doctor 5 Melamud breached the standard of care if he were told 6 that the patient was complaining of pain? You 7 understand there's a dispute between the parties, 8 Doctor Melamud saying that he was not told of pain, 9 Mrs. Thompson saying that he was told of pain? You're 10 aware of that, correct? 11 A Yes. 12 Q Okay. And it's your opinion that Doctor 13 Thompson or Doctor Melamud was told of pain and 14 therefore had an obligation to send the patient to the 15 emergency room; is that true? 16 MR. MISHKIND: Objection. You're 17 mischaracterizing what he said. But go ahead. 18 A It is my belief from reviewing the records 19 that the complaints were persistent abdominal 20 distension, lethargy, and pain, and in lieu of that, 21 you know, clearly that's where -- you know, I would 22 say that that was a breach. 23 Q If Doctor Thompson -- if Doctor Melamud had 24 not been told that the patient was in pain, would he 25 have breached the standard of care by doing what he 0039 1 did in this case? 2 A Well -- 3 Q That is, recommending a Fleet's enema and 4 not sending the patient -- 5 A I think -- 6 Q -- to the ER? 7 A I think in a patient who is this far out, 8 after having a normal exam postop and now has 9 persistent distension, at that time, hours after has 10 not gotten better, you still do not give an enema. So 11 I still think that is a breach of the standard of care 12 because you haven't ruled out the thing that is -- 13 you're most worried about, which is -- and you 14 definitely, you wouldn't do an enema because if you're 15 thinking about that at all, which in his mind, even 16 how he -- when he cites in his record that he always 17 thinks about that, you would never consider doing 18 that. Personally I've never known any endoscopist to 19 ever give an enema post colonoscopy in my entire life. 20 I've never even heard of it. 21 Q Let me rephrase the question. Let's stick 22 to sending the patient to the ER or not. 23 A Okay. 24 Q You would agree with me that if Doctor 25 Melamud had -- was not told that the patient was in 0040 1 pain, that he would have met the standard of care by 2 not sending him to the emergency room? 3 A I think you have to reask that question 4 differently, because pain is just not the only factor. 5 It's the entire -- it's -- you know, when you talk to 6 a patient after a colonoscopy it's several things: 7 Okay, how are you feeling; do you feel okay; do you 8 feel tired; do you feel lethargic; do you have a 9 fever; are you distended; have you passed any gas; has 10 the distension gotten any better; do you feel any 11 tenderness in there; do you have persistent cramping. 12 It's a whole conglomerate of things that you put in 13 your differential that -- when you ask. I mean, so I 14 can't just say it's pain or not pain. It's, it's got 15 to be the entire discussion with the patient about 16 have things gotten better or worse. 17 And it becomes simple. If things haven't 18 gotten better and you're this far down the line, ten 19 hours, twelve hours, you know, I may be -- this may be 20 a little bit different if it was two hours, and I'd 21 say, oh, well, you know, he's distended or he's 22 having, you know, he's having some bloating feeling, 23 let's wait another hour or two and see how you feel. 24 When you're talking ten hours or so, your index -- the 25 red alarm is going. I mean, you've got to rule out 0041 1 the perforation in someone who clearly is not acting 2 normal. 3 Q All right. I want you to assume for a 4 second that Doctor Melamud was aware that there was 5 some distension and some bloating and that was the 6 entirety of what he was told by the patient -- 7 A Umh-humh. 8 Q -- despite asking questions. 9 A Okay. 10 Q Assuming those facts, Doctor, would you 11 agree with me that Doctor Melamud met the standard of 12 care by not sending the patient to the emergency room? 13 A If in fact he said - I'll give you the 14 benefit of the doubt - he said I just have some 15 distension and some mild bloating, that the standard 16 of care at that time would have been, okay, I'll give 17 you this, maybe we'll see you -- you know, give you an 18 hour to see if, you know, walking around or laying on 19 your left side would make you feel a little bit 20 better, but I'd like to, you know, phone -- give you a 21 call back in an hour or so, maybe. But that's even 22 stretching it because you're not -- again, this is ten 23 hours or twelve hours down the line, you know, and he 24 was asymptomatic when he left, got decompressed, you 25 know, in the, in the OR with the pediatric 0042 1 colonoscope, not even an adult colonoscope, so your 2 air is less and you're more apt to have less 3 distension, which is really, you know, reflective of 4 what was on the discharge summary. 5 So, you know, at that time I would say no. 6 You know, if the guy's calling you at that time, you 7 know, I think it's, it's very hard for me to say not 8 bring him in, that it's okay not to, you know. 9 Because patients don't call you if they're just having 10 some mild bloating, they don't call you. They'll call 11 you if something is really wrong. And if it's that 12 far down the line, at least in, in my practice, I, you 13 know, I haven't -- patients typically will -- won't 14 call you with a mild bloating because you've talked to 15 them about it. But it's -- if it's truly deviate -- 16 different from what it was when you left, which in 17 this case it was. 18 Q Is it your opinion that regardless of what 19 signs or symptoms were related to Doctor Melamud, when 20 his patient called him twelve hours, ten to twelve 21 hours after the procedure, the standard of care 22 required him to admit that patient or at least send 23 them to the emergency room? Is that your opinion? 24 A My opinion is that the -- that further 25 exploration needed to be done at that time. 0043 1 Q Such as what? 2 A Either, you know, visit the patient, you 3 know, have the patient come to the emergency room, 4 have the patient come to your office, or, you know -- 5 and this was where it kind of -- I, I have to say I 6 have a little bit of issue with because it's this far 7 out. So I find it hard for me to understand that 8 someone's calling with mild bloating, that -- that's 9 hard for me to believe, that that's what happened, 10 whether or not that was on there. And so that I have 11 to say I -- by reviewing the medical record and kind 12 of seeing what typically happens, you know, it's 13 almost unbelievable for me to believe that, that all 14 was conveyed was mild bloating. 15 Q Okay. And my question to you was a 16 hypothetical question anyway. 17 A Okay. 18 Q Okay? And I understand what you're saying. 19 I want to reask the question. 20 Assuming -- and I'm asking you, is it your 21 opinion that regardless of what was sent -- said to 22 Doctor Thom -- Melamud during the telephone 23 conversation, that it's your opinion that Doctor 24 Melamud had an obligation to send the patient to the 25 ER? 0044 1 A I would say that if he had called and said I 2 just have some mild bloating, I feel fine, you know, I 3 don't feel tired, I feel normal, you know, I don't 4 have any other complaints, then maybe okay, maybe he 5 could say, okay, we can check back in an hour or so 6 and see how you're feeling. I can go that far. 7 Q Okay. 8 A But it's hard for me to go any further than 9 that. But clearly what I would not have done is 10 anything invasive. That to me is way off point. 11 Q We're going there next. 12 A All right. 13 Q All right. Because I think we've resolved 14 that issue. 15 It's your opinion that giving a patient an 16 enema post colonoscopy, ten to twelve hours after a 17 colonoscopy is a breach of standard of care in and of 18 itself? 19 A I think in a patient that has had an 20 invasive colonoscopy, where you've done a procedure 21 invasively, that you are concerned that -- and is 22 calling you with complaints of anything, that doing an 23 enema is, is a deviation from the standard of care, 24 because if you're wrong, you can kill the patient. 25 Q Why? 0045 1 A Because now you're taking a hole, you're 2 injecting air, you're taking -- you know, enemas 3 aren't sterile. Now you're taking stool that's now 4 more even colonized and you're pushing it through with 5 a driver head and you're making that hole bigger 6 probably. 7 Q Is it your opinion that the enema that was 8 administered by the patient -- 9 A Umh-humh. 10 Q -- actually went up the descending colon and 11 exited the perforation? 12 A What I'm saying is that's clearly 13 possible -- 14 Q How much -- 15 A -- you know, if you inject pressure in there 16 at all. 17 Q How many ccs of enema would you need to 18 actually make the enema itself go up through the 19 descending colon and out the perforation? 20 A Well, we do this in the operating room all 21 the time, where we take about, you know, fifty to a 22 hundred ccs of, of liquid and we inject it up there to 23 see if there's leaks after anastomosis. So it doesn't 24 take a lot to go up there. The descending colon's 25 only like that far away (indicating). 0046 1 Q And would the patient be lying down at that 2 point? 3 A Umh-humh. 4 MR. MISHKIND: That's a "yes"? 5 A Yes. 6 Q Yeah. Say "yes." 7 A Sorry. 8 Q And is it your opinion in this case that the 9 enema that was given actually contributed to this 10 patient's death? 11 A I would say there's a high probability that 12 it did. 13 Q And explain physiologically how that 14 happened. 15 A Well, because you have a patient who seemed 16 like to be -- you know, he's lethargic, he's hanging 17 in there for, for the period of the day, and then 18 abruptly, you know, a few hours later he crashes. So 19 I think it's kind of like one of those things where, 20 you know -- some patients -- you know, the common 21 terms we always say here is some patients just don't 22 take a joke, they just don't. There's an innate 23 quality in some persons -- certain patients that, you 24 know, you can hit them over the head and they -- 25 they're fine, they just keep on ticking. Other 0047 1 patients, just a little bit pushes them over the edge. 2 And we don't know why that is. 3 In a case like this where you have a patient 4 that seems like he's kind of walling things off and 5 he's kind of tolerating it, and you do something 6 within a couple hours, he's dead, you know. So 7 clearly something happened there. It's either, you 8 know, that, you know, that it probably precipitated 9 the final, you know, blow, is what I'm thinking. 10 Q Well, do you have an opinion as to what 11 caused Mr. Thompson's arrest? 12 A Yes. 13 Q What is your opinion? 14 A My opinion is pretty much in line with what 15 the coroner says, you know. The guy died of 16 intraabdominal, you know, peritonitis that led to, you 17 know, gross collapse. 18 Q And what evidence do you point to to support 19 that opinion in the records? 20 A In the record, the -- I would say the 21 coroner's report that, you know, has a perforation. 22 The one thing that you have to understand, that when 23 you have that, when you have a perforation and you get 24 abdominal distension, you can develop what we call 25 compartment syndrome. And what compartment syndrome 0048 1 does, it causes an increase of intraabdominal pressure 2 which kind of pushes pressure up on your lungs, and 3 you have the combination that leads to, you know, the 4 systemic inflammatory response syndrome, and patients 5 collapse from that. And ultimately if you're not -- 6 if you don't do something to intervene and to decrease 7 the pressure, obtain source control, that, you know, 8 that the patient can die. 9 Q Do you believe Mr. Thompson had 10 intraabdominal compartment syndrome? 11 A Yes. 12 Q What evidence do you have to support that 13 opinion? 14 A A patient with a perforation, and he's a 15 thin guy who clearly everybody is saying he's really 16 distended, he's distended, he's distended, and the guy 17 ended up, you know, with a respiratory arrest. 18 Q And what was the cause of the respiratory 19 arrest? 20 A The peritonitis and the abdom -- combined 21 with intraabdominal compartment syndrome. 22 Q Just so we're clear, when I ask you as to 23 the cause of death in this case, and let me be very 24 clear. I'll give you a chance to answer it. 25 A Umh-humh. 0049 1 Q Is it your opinion that Mr. Thompson died as 2 a result of a perforation that went untreated? 3 A Correct. 4 Q Okay. And when I asked you what evidence in 5 the records do you point to to support your opinion, I 6 believe your answer was the autopsy? 7 A Yeah. I think -- well, it's, it's the, it's 8 the whole culmination of what happened and the autopsy 9 findings. Sure. 10 Q Were there any findings at the South Pointe 11 Hospital that are consistent with your opinion that he 12 had peritonitis causing him to arrest? 13 A Well, I think that he -- the person did have 14 free air on his, on his X-rays that demonstrate that 15 he had a perforation as well. So there was clinical 16 evidence of that. I believe the surgeon commented on 17 that it's clear the patient had peritonitis in his 18 note, but said that, you know, he was nonoperative 19 because of poor prognosis. So I think it was clear 20 that, you know, the, the clinical staff there felt 21 that the patient had a perforation and peritonitis at 22 that time, too. 23 Q Were his labs consistent with peritonitis? 24 A Oftentimes labs are, are, are not the 25 end-all to those things, and so you may have a patient 0050 1 with a high white count who has peritonitis, or you 2 may have a patient with a low white count. And in, in 3 patients who may have high temperatures, they need 4 more -- but, actually, you know, it's interesting that 5 actually patients who have lower temperatures tend to 6 be more impacted. 7 So while these things tend to not be diag -- 8 diagnostic-specific for these things, it's really the 9 question of how the patient presents, and they may 10 have some laboratory findings that may help you -- 11 help guide you, but in, in my experience they're not 12 as helpful as you would think they are. 13 Q Okay. You would agree with me that his 14 white blood count was low, was not -- was that -- was 15 not abnormally high, correct? 16 A Yes. And I would just refresh my memory of 17 exactly what it was, because there were -- it appears 18 that there was a diluted sample and a repeat that was 19 done, which makes me question, you know, some of the 20 laboratory findings being that, you know, which one is 21 really correct and which ones were not. 22 (Witness reviewing documents.) 23 A So here the ED, the -- I believe that white 24 count is two here that I see. So that would be, you 25 know, abnormal. 0051 1 Q Abnormally low? 2 A Abnormally low. 3 And he was also, you know, hyperglycemic, 4 which is another prognostic sign in a patient who is 5 nondiabetic. 6 Q The blood cultures were all negative in this 7 case? 8 A Yes. 9 Q Okay. Do you believe that that is 10 consistent with death from a peritonitis? 11 A I think it's irrelevant in this case. 12 Q Mr. Thompson had a clean colon at the time 13 of his perforation? 14 A No. 15 Q What's that? 16 A No, he did not. 17 Q Okay. Why do you say that? 18 A Based on the assessment, he had brown liquid 19 stool still coming out of him at, at, at his 20 preoperative -- at his -- at the -- right prior to the 21 colonoscopy. 22 Q Okay. 23 A As dictated here. It said brown liquidy. 24 So he did have bowel preps, but he wasn't clean. He 25 did not have a clean colon. 0052 1 Q You -- you've read Doctor Melamud's 2 deposition where -- and the photographs he took, and 3 it was his opinion that his patient had a clean colon. 4 You disagree with that? 5 A Well, I'm just saying that based on what was 6 seen here, so that there was colon -- I didn't -- I 7 don't believe I saw pictures. I saw some biopsy 8 specimens, but that not -- is not indicative to 9 whether or not he was totally clean. I can only refer 10 to -- where is this? 11 (Witness reviewing documents.) 12 A Brownish water. So here is on the, the 13 out -- the pre-call, where that was before it, it said 14 that he has brownish water still coming. So he's not 15 clear. So there's still, you know, contamination in 16 there. 17 Q He did not eat following the colonoscopy? 18 A He had juice and water. 19 Q And, and I'm talking about from the period 20 of time -- from the colonoscopy until his arrest, his 21 wife said that he, he only drank water. You're aware 22 of that? 23 A Yeah. But in the, in the OR afterwards he 24 had apple juice. 25 MR. MISHKIND: He was talking about after 0053 1 discharge and prior to the -- 2 A So in the hospital after the colonoscopy -- 3 (Reporter was unable to record multiple 4 speakers simultaneously and advised counsel of same.) 5 A I was talking about solid food. I wasn't 6 talking about liquids. 7 Q Okay. 8 A That's where I was getting that from. 9 Q Oh, yeah. 10 A That is correct. 11 Q Okay. If he had apple juice, that wouldn't 12 affect his colon? 13 A Well, I, I think that, you know, there's 14 still -- I think there, there are levels of bowel prep 15 where, you know, you think that you actually are 16 totally clean and that by not eating, that you're, 17 that you're not creating secretions and such. I think 18 it's kind of a -- it's a bit of a misnomer. So in 19 other words, if you have a colonoscopy, or when you 20 have a bowel prep and you're clean, the funniest thing 21 is after you do an operation people are like, well, I 22 haven't eaten anything in days, you know, in days, I'm 23 not going to have anything there. The answer is 24 that's wrong. Your colon still secretes and your 25 intestines still secrete things that create you to 0054 1 have a bowel movement. So eating is irrelevant. 2 Q There would be a substantial difference in 3 this case had this been a man off the street that 4 suffered some traumatic injury with a perforation of 5 his colon who had not been prepped; you would agree 6 with that? 7 MR. MISHKIND: Objection. Go ahead. 8 A There would be probably a less degree of, of 9 bacteria present in the colon. 10 Q So you're saying there would be less degree 11 if there was fecal material present? 12 A No. I'm saying less degree in terms of the 13 volume. There's still going to be bacteria present, 14 no matter what, to some level. 15 Q So regardless of whether or not he was 16 prepped or not prepped prior to his colonoscopy, you 17 don't find any substantial difference in the, in the 18 outcome? 19 A No, there's a, there's a degree of it. But 20 we know now in trauma if you have a stab wound to your 21 colon that -- before you used to get a, a colostomy 22 done. Now we repair you immediately if the 23 contamination is, is, is picked up quickly. And so 24 that there's, there's been changes of opinion in 25 regards to that. 0055 1 Q Mr. Thompson, there was no finding that he 2 had a fever; would you agree with that? 3 A Correct. 4 Q And how do you explain the myoglobin results 5 that were so elevated? 6 A On -- upon admission? 7 Q Sure. 8 A Probably the myoglo -- globins because of 9 persistent abdominal distension that leads to muscle, 10 you know, you know, swelling and compression which 11 causes your myoglobin to go up. 12 Q And that would be intraabdominal in your 13 opinion? 14 A Umh-humh. Yes. 15 MR. MISHKIND: You have to say "yes." 16 Q Say "yes." 17 A Sorry. 18 And that's pretty classic. 19 Q Is there any other signs or symptoms that 20 you see in the medical records, not the autopsy, the 21 medical records that are consistent with your opinion 22 that Mr. Thompson died as a result of peritonitis? 23 A Other than the medical records? 24 Q Yeah, in the medical records. 25 A No. I think that basically what we spoke 0056 1 about was -- is a combination of what happened and the 2 autopsy findings. 3 Q We're going to be in a courtroom in December 4 and I'm going to ask you some questions, and 5 Mr. Mishkind's going to ask you some questions. And 6 what I want to find out today is what are you going to 7 point to in the medical record to support your 8 opinions, that's what I'm trying to find out. Is 9 there any -- and I'm trying to give you every -- ample 10 opportunity to do that, Doctor. I just want to make 11 sure you're aware. 12 A Yeah. I would say the predominantly (sic) 13 thing I would point to is the autopsy findings -- 14 Q Okay. 15 A -- and clinical assessments by, you know, 16 the surgeon, and the X-rays that demonstrate free air 17 and the whole clinical sequelae of it. 18 Q You would expect free air with a perforation 19 regardless of peritonitis, correct? 20 A Yes. 21 Q Now, turning to the autopsy, what do you 22 point to in the autopsy to support your opinion that 23 Mr. Thompson died as a result of peritonitis? 24 A Okay. So anatomic diagnosis, therapeutic 25 procedure colonoscopy with polypectomy, perforation of 0057 1 descending colon. 2 MR. MISHKIND: Whoa, whoa. Please slow 3 down. 4 A Perforation of descending colon, 5 cardiopulmonary arrest, anoxic encephalopathy, acute 6 ischemic cerebral infarct, and acute peritonitis. 7 Q And you've just read from the anatomic 8 diagnoses of the coroner's report, correct? 9 A And the cause of death states the same 10 thing, anoxic encephalopathy, acute ischemic cerebral 11 infarct, and acute peritonitis. 12 Q And, also, Doctor, it's your opinion -- 13 well, I should say you're basing your opinion on the 14 findings of the forensic pathologist that did the 15 autopsy, correct? 16 A Well, I'm basing my findings on the entire 17 clinical picture of, yes, he had a colonoscopy, he had 18 a perforation that was not picked up 'til, 'til it was 19 basically too late, and he had autopsy findings 20 confirming that that's what happened. 21 Q Okay. But my -- specifically you're, you're 22 pointing to the autopsy findings which are the 23 forensic pathologist's diagnoses for this patient? 24 A Cause of death. 25 Q Right. And my question is, now is there any 0058 1 other findings in either the gross or microscopic 2 portions of the autopsy protocol that you would say 3 are consistent with peritonitis? 4 A If you look under Internal Examination, it 5 says there are a thousand ccs of amber fluid in the 6 peritoneal capacity with diffuse greenish-yellow 7 exudate. 8 Q And what would be the cause of that thousand 9 ccs of exudate? 10 A That's contents. So basically he had one 11 quart of bowel -- one liter of stool into his belly, 12 and that is not a good thing. 13 Q Do you believe that that one liter of stool 14 in the intraabdominal cavity was pre, or post arrest? 15 A Well, pre, definitely. 16 Q In terms of Mr. Thompson after he spoke to 17 Doctor Melamud, the testimony is he went back to -- 18 laid in the bed and watched TV. You're aware of that? 19 A Yes. 20 Q And Doctor Melamud told the patient if 21 you're not any better, give me a call? 22 MR. MISHKIND: Objection. 23 Q Correct? 24 MR. MISHKIND: Objection. You're 25 mischaracterizing the testimony. But go ahead. 0059 1 A That's what he testifies to. 2 Q Doctor Melamud did? 3 A Correct. 4 Q Okay. And the patient's wife also admitted 5 that Doctor Thompson -- or Doctor Melamud had said if 6 you're not better, give me a call. You're aware of 7 that testimony in her deposition? 8 MR. MISHKIND: Objection. 9 A Yes. 10 Q Mr. -- neither Mr. Thompson nor his wife 11 called Doctor Melamud after the initial telephone 12 call; do you agree with that? 13 A Yes. 14 Q If Mr. Thompson had peritonitis, wouldn't 15 you expect him to be in severe pain? 16 A Well, I mean, according to this, to the 17 medical records, the wife did say he was in severe 18 pain. And the real question, I think, comes down to 19 the fact that, you know, was he just being a good 20 patient, which means, okay, I called the doctor, I 21 don't like doing it, because patients don't like doing 22 it because you -- us physicians sometimes make you 23 feel like you're wasting our time, and that's 24 unfortunate. Having said that, you call the doctor, 25 the doctor calls you back and says do an enema, you 0060 1 know, you know, reassures him that, that that should 2 be okay. The guy does it, and he's thinking, you 3 know, maybe I'm being, for lack of a better word, a 4 pain in the ass to call you back, but I'm going to do 5 what you told me, which is I'm going to give the 6 enema, you know. And -- 7 Q So is it your -- is it your opinion in this 8 case that Mr. Thompson had a full-blown peritonitis 9 with all the clinical signs and symptoms while he was 10 at his home that evening? 11 MR. MISHKIND: Objection. Go ahead. 12 A I think it was a progressive process, yes. 13 Q Were there parts of his disease process that 14 did not manifest themselves? 15 A Well, I would say it kind of -- again, each 16 patients are individuals. So, yeah. I mean, did he 17 have a, a, a fever of one-oh-four? No. Does that 18 happen frequently? Yes, it happens all -- you know, 19 patients can be septic without a fever. So you kind 20 of -- you have to kind of look at things as -- you 21 can't look at each individual item as, oh, okay, he 22 has the -- you know, it fits entirely in the box that 23 he has it. He had several clinical symptoms that 24 would make you feel that, yes, he -- this guy has -- 25 he's a thin guy, did not have distension at, at, at 0061 1 the end of colonoscopy, was decompressed, and 2 progressively seemed to get worse over time. Your air 3 doesn't -- you don't suck more air in as time goes by. 4 The only way you're going to get more distended is by 5 fluid leaking. So by fluid leaking out of the colon, 6 it distended out. 7 So that now the big thing with him, you 8 know, and he was complaining of pain, so there was a 9 issue, well, did he have peritonitis. Well, define 10 what peritonitis is. Based on is it a physical 11 examination, is it a clinical finding, is it a basic 12 science test, do we have a test that says, yes, that's 13 peritonitis, yes or no. It's really a, a clinical 14 diagnosis. And in this guy with persistent abdominal 15 distension out, out to here and pain, the guy had 16 clinical peritonitis. 17 Q Did he have a rigid abdomen? 18 A Unknown. 19 Q Okay. If he did not have a rigid abdomen 20 and yet still had peritonitis, in your opinion, can 21 you explain why he would not have a rigid abdomen? 22 MR. MISHKIND: Are you talking about at 23 home, or when he arrived -- when you say -- 24 MR. HUPP: Either at home -- 25 MR. MISHKIND: -- rigid abdomen -- 0062 1 MR. HUPP: -- or during his admission. 2 A Well, rigid is a diagnosis that physicians 3 put on things. So if I call you at home and I say, 4 hey, do you have a rigid abdomen? What does that 5 mean? You're not going to be able to tell me what I 6 think is rigid or not. When you go to a patient and 7 you examine them, and they're like, you know, I have 8 my -- I'm distended and I have pain. Rigidity really 9 is when I start examining you and I'm pushing on the 10 belly and then your belly starts flopping, and then 11 you're like, jeez, that really bothers me. That's 12 what rigid -- rigidity is. And it really -- it's kind 13 of something what a surgeon really looks at as far as 14 when they're examining. So -- 15 BY MR. HUPP: 16 Q Did any physician at South Pointe Hospital 17 find that Mr. -- 18 A Well, he was, he was intubated and he was, 19 he was pretty much brain dead by the time anybody 20 looked at him. So I don't think that was -- that's 21 what I'm saying. It's unknown, is, is nobody can -- a 22 physician or a surgeon specifically could not examine 23 him when he had the clinical acumen to say, jeez, that 24 really bothers me when you're pushing on my belly and 25 my, my peritoneal cavity's going up and down. And 0063 1 that's what rigidity is in my opinion. 2 Q In a patient with peritonitis sufficient to 3 cause an arrest, would you expect some rigidity by a 4 physician on exam during the -- that night of his 5 admission? 6 MR. MISHKIND: Objection. 7 A In a patient who has gross contamination, 8 they may just have pain. And I can give you a clear 9 example of a patient that explains this -- 10 Q Well, here -- 11 A -- if you'd like. 12 Q I want to hear an answer to my question. 13 Here's, here's the question. I'll rephrase it for 14 you. 15 Would you expect for a patient who in your 16 opinion suffered peritonitis due to a perforation 17 sufficient to cause his arrest, that when he went to 18 the hospital that evening, a physician examined him, 19 you would ex -- you would expect that physician to 20 find rigidity? 21 A Yes, in a patient who is -- has a 22 clinical -- or has a brain that's functioning, who's 23 not intubated and not encephalopathic. Rigidity 24 isn't -- if, if you're, if you're sedated, if I put 25 you on a ventilator, I can't tell if you have rigidity 0064 1 if you're sedated and you don't have the brain or the 2 neurological cells to function or process. 3 Q So it's your opinion that by the time the 4 examination was done he was already brain dead, for 5 lack of a better term? 6 A Oh, yeah. That's a hundred percent. 7 Q And why was it that he suffered brain death? 8 A Because he went into respiratory arrest and 9 had an, an anoxic event. 10 Q And why did he go into respiratory arrest? 11 A Because -- he went into respiratory arrest 12 based on the peritonitis from the perforation. 13 Q Have you ever seen that in your career? 14 A Oh, yes. 15 Q And how often? 16 A From a respiratory arrest related to, to 17 abdominal perforation? 18 Q Yes. 19 A I don't know. Hundreds. 20 Q Umh-humh. And how long after the initial 21 injury or the perforation would that typically occur? 22 A It could be anywhere from hours, you know, 23 to, you know, days, depending on the patient or their 24 background and their innate DNA makeup. 25 Q You personally have never had one of your 0065 1 patients suffer a perforation from a colonoscopy? 2 A Correct. 3 Q Okay. But you've treated patients who have 4 been identified and referred to you as having a 5 perforation? 6 A Yes. 7 Q Have you ever had patients call you twelve 8 hours after a colonoscopy that you've performed? 9 A Yes. 10 Q And what are the typical complaints twelve 11 hours later? 12 A The typical complaints are, you know, I've 13 passed -- I haven't -- I passed some gas, you know, 14 I'm not passing gas anymore, is that okay, you know, 15 can I go to work the next day. And they're, they're 16 kind of -- they're complaints more of is everything 17 going in the, in the right direction. And that's why 18 I always say it's kind of like how are things going. 19 If things have been getting better over the course of 20 time, then you're kind -- then you can say, well, you 21 know, mild bloating but it's gotten better over time, 22 you know, that makes you feel more confident. But if 23 things are going worse and the trend is worse over 24 time, that really makes you, you know, pull out the 25 red, red lights and warnings. 0066 1 Q Now, what -- in this case is it your opinion 2 that Mr. Thompson was going, like you just said, 3 downhill or with red warnings? 4 A Yes. 5 Q And what evidence do we have to support 6 that? 7 A Just the testimony of the wife. 8 Q And what specifically would we look to to 9 support that opinion? 10 A That persistently, that he was, you know, 11 lethargic, he was in bed most of the day, he was 12 complaining of sharp pain increasingly over the course 13 of the day that led up to the phone call. 14 I'm going to cite Page 34 through 37 on the 15 depo. 16 Q On whose depo? 17 A Of the wife's depo. 18 She told the pain service that, you know, 19 the pain -- the answering service that he had bloating 20 and had sharp pains. The discussion with Melamud, 21 I -- you know, he was having sharp pains and he was 22 bloated and weak. You know, you don't get weak from a 23 colonoscopy. And she, you know -- and, clearly, you 24 know, this was something that got worse over time, you 25 know. You know, you may have -- sometimes, you know, 0067 1 initially when you have Versed and those medications, 2 you're a little sleepy at first, but that kind of -- 3 you know, Versed kind of works pretty quickly, you 4 know, it, it, it gets out of your system and then 5 you're, you're kind of back to square one within a few 6 hours. 7 Q You would not expect the answering service 8 to document any conversation with a, a patient, would 9 you? 10 MR. MISHKIND: Objection. 11 A It depends on their protocols. Everybody 12 has different protocols. 13 Q If Doctor Melamud said that the answering 14 service doesn't relate anything but the patient's name 15 and phone number to him, you would have no reason to 16 dispute that? 17 MR. MISHKIND: Objection. 18 A I would have to see what their standard 19 operating procedure would be for that answering 20 service, which should be in their regulations. 21 Q The question is if Doctor Melamud said that 22 his answering service only gives you the name and the 23 phone number, if that were the case, Doctor -- 24 A Umh-humh. 25 Q -- would it be reasonable to assume that he 0068 1 would not hear anything else that was told to the 2 answering service? 3 MR. MISHKIND: Objection. But go ahead. 4 A Yes. 5 Q Okay. You -- the answering services are not 6 staffed by physicians or nurses, are they, in your 7 experience? 8 A Some of them are. 9 Q Wouldn't that be a specific answering 10 service that says nurse on-call twenty-four hours a 11 day? 12 A It all depends on the time of day and hours. 13 But there are like -- you know, there are physicians 14 that have nurses/staff answering lines for a 15 significant period of time. But it's all -- again, 16 it's all related to how you work your own business. 17 Q Is it your opinion in this case that the 18 answering service should have informed Doctor Melamud 19 what the wife told them? 20 MR. MISHKIND: Objection. 21 A No. 22 Q When was it too late to save Mr. Thompson's 23 life? 24 A I would say probably about thirty minutes 25 before the 911 call. 0069 1 Q And how do you arrive at that time? 2 A Because according to the wife, she had 3 spoken to him and he was totally alert and functioning 4 fifteen minutes before she called 911. So the bottom 5 line being that at that time period he was still 6 talking. If somebody had been there and he had a 7 respiratory arrest, pull out the ET tube, get him to 8 the -- get him to the hospital, you know, you diagnose 9 your perforation, he's on a ventilator because that's 10 why he died, from respiratory arrest, he died from 11 respiratory arrest due to anoxia. So what would have 12 saved him would have been airway control. And clearly 13 he has -- had his airway up until fifteen minutes 14 before the 911 call. 15 Q Fifteen minutes, because that's when the 16 wife went to go take a shower, get ready for work, and 17 then found him? 18 MR. MISHKIND: Objection. 19 A That's why I can clearly say that he was 20 still at the point where he was conversing with her, 21 which means he still had an airway and it was 22 appropriate. 23 Q Is it your understanding that there came a 24 point in time twelve to fifteen minutes before 25 Mr. Thompson arrested that his wife left the room to 0070 1 go either take a shower or prepare -- she was in 2 another room? 3 A What I'm trying to say is this. Is from -- 4 my recollection is she's talking to him and he's fine. 5 She leaves the room for ten or fifteen minutes, then 6 comes back in and hears gurgling. Okay? So fifteen 7 minutes ago, before she left the room, at that time he 8 was -- if somebody -- if he had been in the emergency 9 room at that time and he crashed, then he would have 10 had his airway secured and he wouldn't have developed 11 anoxic encephalopathy based on, you know, his -- 12 succumbing to the symptoms as related to the 13 perforation. 14 Q All right. So his death was due to a 15 respiratory arrest which caused his brain to get 16 insufficient oxygen? 17 A Correct. 18 MR. MISHKIND: Objection; asked and 19 answered. 20 Q Okay. Does that condition in any way -- 21 well, let me ask it this way. 22 His respiratory arrest in your opinion was 23 due to the perforation and the subsequent, in your 24 opinion, peritonitis? 25 MR. MISHKIND: Objection; asked and 0071 1 answered. Go ahead. 2 A Yes. 3 Q And now you're saying if, if he had had 4 airway support he would have survived? 5 A The probability is, yes. 6 Q Does it matter where the perforation 7 occurred in the colon in this case? 8 A The lower the perforation, or distal, the 9 more bacterial contamination you have, the higher 10 bacterial load. So if he had a perforation in the 11 descending or sigmoid colon, that's the worst place 12 you can have it. 13 Q Do you have any other opinions, Doctor, as 14 to how Doctor Melamud breached the standard of care 15 aside from what we've already talked about today? 16 A No. 17 Q Okay. Do you have any other opinions as to 18 the issue of proximate cause and the evidence you have 19 to support your opinion on proximate cause aside from 20 what we already talked about? 21 A I don't believe so. 22 Q Is there any other documents or materials 23 that you intend to review prior to trial in this case? 24 MR. MISHKIND: Again, if there's any 25 literature that I intend to present to him, I will 0072 1 certainly advise you prior to trial. But he can 2 certainly go ahead and answer the question. I will 3 also tell you -- 4 MR. HUPP: All right. 5 MR. MISHKIND: -- that I have talked with 6 the doctor and I do intend to ask him relative to life 7 expectancy as well. 8 MR. HUPP: Okay. Fair enough. 9 BY MR. HUPP: 10 Q As you sit here, just you, not with 11 counsel -- 12 A Umh-humh. 13 Q -- it's your opinion that you don't need any 14 medical literature to support your opinions in this 15 case, though? 16 A No. I, I think it's common sense. 17 Q Okay. Now, in terms of life expectancy, I 18 understand that you're going to be asked that 19 question. What do you believe Mr. Thompson's life 20 expectancy was? 21 A Well, I would have said based on -- the life 22 expectancy would have been normal for what his, his -- 23 demographically, you know, his demographics in that 24 area. So most likely it would have been another, you 25 know, twenty years. He was fifty-seven. 0073 1 Q And the demographic would be a 2 fifty-seven-year-old black or African-American male? 3 A In that state based on, you know, whatever 4 the national, you know, statistics are. 5 Q Okay. Is there anything, any medical 6 condition or problem that Mr. Thompson had that could 7 potentially shorten his life expectancy based on the 8 autopsy? Or any other evidence you could point to? 9 A Not that I can recollect. 10 Q Was there something about Mr. Thompson's 11 condition that caused him to have a respiratory arrest 12 whereas other patients would not have a respiratory 13 arrest if they suffered from peritonitis? 14 A Well, I would say with him it's probably 15 just delay in diagnosis, you know. You waited, you 16 know, the period of time where you had one liter of 17 fluid into the abdomen with contamination and pressure 18 on the diaphragm just finally pushed him over the 19 edge. 20 Q Physiologically what changes occurred in 21 Mr. Thompson over the course of that twelve hours that 22 caused him to go into respiratory arrest? 23 A Intraabdominal pressure from the perforation 24 with the fluid, he was distended, caused a 25 diaphragmatic compromise. You have systemic 0074 1 inflammatory response which causes you to vasodilate, 2 drop your pressure. So it's a combination of your -- 3 you know, everything that just kind of -- eventually 4 just bottoms out. 5 And every system's interrelated. So, you 6 know, your cardiac function will start going, your 7 respiratory function will start going, and ultimately, 8 as one goes, the other one goes, and it spirals and 9 the next thing you know you're just -- you're 10 arresting. So could the, you know, could the SIRS 11 affect -- impact his heart first, that, you know, he 12 went into some arrhythmia prior -- precipitating the 13 arrest, that could have happened as well. Hard to 14 say. But the clear thing is everything points clearly 15 in that direction as far as intraabdominal 16 perforation, sepsis, SIRS, compartment syndrome. 17 Q What is SIRS? 18 A Systemic inflammatory response syndrome. 19 Q Based upon your review of the three defense 20 expert reports that you, that you've reviewed, do you 21 have any comments or opinions, or responses I should 22 say? 23 A Let's see. Okay. 24 Q And let's start with Doctor Senagore first. 25 Do you know Doctor Senagore? 0075 1 A No. 2 Q Okay. 3 MR. MISHKIND: And your question is whether 4 or not he has any comments or, or disagreements with 5 regard to, to what -- 6 MR. HUPP: Comments -- 7 MR. MISHKIND: -- he's reading -- 8 MR. HUPP: -- responses, disagreements, 9 sure. 10 A Well, I, I guess the issues that I have with 11 this, and, again, it's almost a he said/she said 12 argument, he wrote that while there is no evidence to 13 suggest that Doctor Melamud violated the standard of 14 care by not recommending that Mr. T go immediately to 15 the emergency room at the time of the phone call. And 16 my disagreement with that is that there was complaints 17 of pain, abdominal distension throughout the day that 18 was communicated by the wife to the answering service 19 and such. So I disagree with that. 20 The other thing is him saying it's extremely 21 unusual for a perforation of the colon to cause 22 cardiac arrest due to the time frame needed for the 23 onset of the inflammatory response. Absolutely, a 24 hundred percent incorrect. 25 ----------- 0076 1 BY MR. HUPP: 2 Q And why do you say that? 3 A Because it's wrong. 4 Q Well -- 5 A Because I see it on a day-to-day basis. You 6 see a perforation, you -- 7 Q What I'm saying is -- 8 MR. MISHKIND: Let him finish. 9 Q -- that your experience -- 10 MR. MISHKIND: Let him finish -- 11 Q -- or is that your -- 12 MR. MISHKIND: Let him finish. He's 13 answering your question. Let him finish. 14 Go ahead, Doctor. 15 MR. HUPP: Go ahead and finish, and then 16 I'll ask you another question. 17 A Okay. What his word is, it is extremely 18 unusual for perforation of the colon to cause cardiac 19 arrest due to the time frame needed for the onset of 20 the inflammatory response. 21 BY MR. HUPP: 22 Q Umh-humh. 23 A There are patients that can develop the 24 inflammatory response within hours. There are 25 patients that can make days. There is a spectrum. 0077 1 And it is key that you have to be careful to make 2 comments on that because if you practice that way and 3 assume that, well, it's very, very rare to happen, 4 you're going to be the one to miss them and you're 5 going to regret it. And the bottom line is we see 6 this, you know, in patients who have a perforated 7 appendicitis that die within six hours from, from just 8 the perforation of the appendicitis. Of course, there 9 are patients on a submarine that can go for days, but 10 it still happens. 11 So what I'm saying is it's absolutely wrong 12 to say that. Especially when you use the word 13 systemic inflam -- you know, inflammatory response, 14 when you're talking to one of the world's experts on 15 systemic inflammatory response syndrome. 16 Q And you've published in that area? 17 A Oh, yes. 18 Q And are there any textbooks or chapters, 19 book chapters you've written in that area? 20 A I don't know if there's book chapters in it. 21 But as far as looking at injury in systemic 22 inflammatory response, I am the world expert. 23 Q Any other thoughts or opinions as to Doctor 24 Poleski's report? 25 A Let's see. Poleski. 0078 1 MR. MISHKIND: Here's Poleski. We were on 2 Senagore before (handing). 3 A All right. Poleski. Well, I guess my 4 disagreement is he acted within the standard of care 5 in his treatment, I disagree with that. I agree with 6 that he was found to have a six millimeter perforation 7 of the distal descending colon and then died of acute 8 peritonitis. So I agree that he agrees with the 9 autopsy findings, but I disagree with his opinion. 10 Q Okay. And what about Doctor Wetli, do you 11 have any response to Doctor Wetli? 12 A Wetli. 13 Q You know Doctor Wetli is a forensic 14 pathologist? 15 A I think as a forensic pathologist it's kind 16 of beyond me for him to say -- to make a conclusion 17 that the patient died -- experienced a seizure that 18 resulted in anoxic encephalopathy and ultimately his 19 demise. Clearly, this guy doesn't treat patients 20 because, you know, he's, he's assuming that a person 21 who hadn't had a seizure in five years all of a 22 sudden, like that (indicating), had a life-ending 23 seizure, which is absolutely -- you want to talk about 24 incidents being less than half a percent, that's, 25 that's it. So, so clearly that's it. 0079 1 He talks about Dilantin was low, the 2 Dilantin level. Clearly he's not a clinician to 3 understand that Dilantin, when you're treating 4 Dilantin, now you're -- now I'm putting my surgical 5 critical care hat on. When you really look at 6 Dilantin, you look at free Dilantin levels, not total 7 Dilantin levels. In other words, Dilantin is bound to 8 proteins and can be affected by certain areas as 9 bound. So, in essence, if you left to look at the 10 Dilantin level in the albumin and his creatine and 11 other these other things, you look at what was the 12 real number there. 13 Having said that, you have multiple other 14 labs to show that, well, maybe those labs were, were 15 diluted or something was wrong with that at the same 16 time in the emergency room. So I take that Dilantin 17 level and say here you have a guy who hasn't seized in 18 years and all of a sudden you're going to put 19 everything on the seizure disorder where his wife says 20 his typical seizures are he has some twitching, that 21 he's never done that before. Now, if this was a guy 22 who was having seizures every month and he was going 23 to the hospital -- remember, I see seizures on a daily 24 basis, I probably see ten, you know, ten a week of 25 patients who seize at home and come in with a question 0080 1 of arrest and bring them in here. And they never die, 2 it's a rarity, especially for someone who hasn't 3 seized in years. It's the patient who keeps on coming 4 back, that's who you worry about, those are the ones 5 that die. So having said that, I, I would say, for 6 lack of a better word, this guy's out in left field. 7 Q And you have experience that Doctor Wetli 8 doesn't have and he has experience as a forensic 9 pathology -- pathologist that you don't have; will you 10 agree with that? 11 MR. MISHKIND: Objection. 12 A He looks at dead people. I look at live 13 people. 14 Q Right. That's essentially the difference 15 between the two specialties? 16 A Correct. And if you're a person making -- 17 if you're trying to say what happened earlier, you 18 know, you know, come on, look at CSI and all those 19 things. I mean, it's unrealistic. The bottom line is 20 you have to look at -- understand disease processes 21 and from a -- the, the perspective -- remember, I'm 22 just not a general surgeon, I'm also an acute critical 23 care and a trauma surgeon, so I see all of this. And 24 my game is to save people from whatever it is. And so 25 I can tell you that seizures, you know, it is a rarity 0081 1 at most that you're going to have a patient come in 2 who -- with respiratory arrest and die from a seizure 3 unless they seize, fall, hit their brain, and you have 4 a major epidural or subdural. That's the only way. 5 If a patient comes in the University of Maryland Shock 6 Trauma Center from a benign seizure without hitting 7 the brain, they walk out of the hospital. 8 Q Is it your opinion, Doctor, that it is not 9 possible that Mr. Thompson died of a seizure? Is that 10 your opinion? 11 A Highly unlikely. I have a high probability 12 that he did not die from a seizure. 13 Q Well, I said is it not at all possible? 14 MR. MISHKIND: Let me object. 15 Q Are you quantifying -- 16 MR. HUPP: Howard, let me talk here. 17 MR. MISHKIND: Well, I -- 18 MR. HUPP: Don't cut me off. Let's, let's 19 get this question right because I'm going to use it. 20 MR. MISHKIND: Go ahead. And then -- 21 MR. HUPP: Okay. 22 MR. MISHKIND: And then I will -- 23 MR. HUPP: Then you make -- 24 MR. MISHKIND: -- object to it. 25 MR. HUPP: -- your objection. 0082 1 MR. MISHKIND: Okay. Go ahead. Finish your 2 question. 3 MR. HUPP: Okay. 4 MR. MISHKIND: I thought you were done. 5 MR. HUPP: No, no, no. 6 MR. MISHKIND: Excuse me. 7 MR. HUPP: I was still trying to quantify 8 it. 9 MR. MISHKIND: Okay. 10 BY MR. HUPP: 11 Q Is it your opinion, Doctor, that there is a 12 small percentage chance that Mr. Thompson died from a 13 seizure, or is it your opinion that there's a zero 14 percent chance that he died from a seizure? That's 15 the question. 16 MR. MISHKIND: Objection. Go ahead. 17 A I think that in the case of a patient who 18 hasn't had seizures in forever, years, the risk of him 19 having a seizure that precipitated his death is 20 extremely unlikely, less than a half percent. So if 21 you want to go with that number, that's the number 22 I'll give you. 23 Q Okay. So it's point-five percent? 24 MR. MISHKIND: Objection. 25 Q Is that what you're saying? 0083 1 A Less than point-five. 2 Q No. You said point-five, which is a half 3 percent. 4 A Yeah, less than half. I'm saying it's even 5 probably less than that. 6 MR. HUPP: Okay. Those are all the 7 questions I have today. Thank you. 8 MR. MISHKIND: We will read. 9 (Signature having not been waived, the 10 deposition of Grant Vincent Bochicchio, M.D., was 11 concluded at 1:27 p.m.) 12 ACKNOWLEDGMENT OF DEPONENT 13 I, Grant Vincent Bochicchio, M.D.,, do 14 hereby acknowledge that I have read and examined the 15 foregoing testimony, and the same is a true, correct 16 and complete transcription of the testimony given by 17 me and any corrections appear on the attached Errata 18 sheet signed by me. 19 20 ________________________ ________________________ 21 (DATE) (SIGNATURE) 22 ----------- 23 24 25 0084 1 CERTIFICATE OF SHORTHAND REPORTER - NOTARY PUBLIC 2 I, Beatriz D. Fefel, Registered Professional 3 Reporter, the officer before whom the foregoing 4 proceedings were taken, do hereby certify that the 5 foregoing transcript is a true and correct record of 6 the proceedings; that said proceedings were taken by 7 me stenographically and thereafter reduced to 8 typewriting under my supervision; and that I am 9 neither counsel for, related to, nor employed by any 10 of the parties to this case and have no interest, 11 financial or otherwise, in its outcome. 12 IN WITNESS WHEREOF, I have hereunto set my 13 hand and affixed my notarial seal this 8th day of 14 August 2008. 15 My commission expires: 16 August 1, 2012 17 18 ____________________________ 19 NOTARY PUBLIC IN AND FOR THE 20 STATE OF MARYLAND 21 ----------- 22 23 24 25 0085 1 E R R A T A S H E E T 2 IN RE: Thompson, etc., V. Melamud, et al. 3 RETURN BY: 4 PAGE LINE CORRECTION AND REASON 5 ____ _____ _____________________________________ 6 ____ _____ _____________________________________ 7 ____ _____ _____________________________________ 8 ____ _____ _____________________________________ 9 ____ _____ _____________________________________ 10 ____ _____ _____________________________________ 11 ____ _____ _____________________________________ 12 ____ _____ _____________________________________ 13 ____ _____ _____________________________________ 14 ____ _____ _____________________________________ 15 ____ _____ _____________________________________ 16 ____ _____ _____________________________________ 17 ____ _____ _____________________________________ 18 ____ _____ _____________________________________ 19 ____ _____ _____________________________________ 20 ____ _____ _____________________________________ 21 ____ _____ _____________________________________ 22 ____ _____ _____________________________________ 23 ____ _____ _____________________________________ 24 _____________ _____________________________________ 25 (DATE) (SIGNATURE) 0086 1 E R R A T A S H E E T (C O N T I N U E D) 2 IN RE: Thompson, etc., V. Melamud, et al. 3 RETURN BY: 4 PAGE LINE CORRECTION AND REASON 5 ____ _____ _____________________________________ 6 ____ _____ _____________________________________ 7 ____ _____ _____________________________________ 8 ____ _____ _____________________________________ 9 ____ _____ _____________________________________ 10 ____ _____ _____________________________________ 11 ____ _____ _____________________________________ 12 ____ _____ _____________________________________ 13 ____ _____ _____________________________________ 14 ____ _____ _____________________________________ 15 ____ _____ _____________________________________ 16 ____ _____ _____________________________________ 17 ____ _____ _____________________________________ 18 ____ _____ _____________________________________ 19 ____ _____ _____________________________________ 20 ____ _____ _____________________________________ 21 ____ _____ _____________________________________ 22 ____ _____ _____________________________________ 23 ____ _____ _____________________________________ 24 _____________ _____________________________________ 25 (DATE) (SIGNATURE)