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 PAUL E. CLANCY, 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 2:15 17 p.m. on Wednesday, February 28, 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 PAUL E. CLANCY, 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 PAUL E. CLANCY, M.D. 8 BY MS. REINKER: 9 MS. REINKER: Mark, are you on 10 the line, too? 11 MR. RUF: Yes. 12 MS. REINKER: Do we have anybody 13 else present here other than Toby, myself, 14 the doctor and Mark? 15 MR. HIRSHMAN: Not here. 16 Q. Doctor, would you state your name, please, for 17 the record. 18 A. Paul Edward Clancy. 19 Q. Have you ever gone by any other names? 20 A. No. 21 Q. Your date of birth is January 11th, 1949? 22 A. Correct. 23 Q. Which means you just had your 51st birthday? 24 A. 52nd, right. 25 Q. That's right. This is 2001. I forgot. 4 1 Your Social Security number is 366-50-8437? 2 A. Yes. 3 Q. And is that the number you would like us to use 4 when we send you your reimbursement check for 5 today? 6 A. Yes. 7 Q. Who is your current employer? 8 A. Self-employed. 9 Q. There is no professional corporation with which 10 you work? 11 A. Yes. Southeastern Michigan Cardiac Surgeons. 12 Q. Do you receive your paycheck from that 13 corporation? 14 A. I do, yes. 15 Q. And that is the only medical group with which you 16 are professionally affiliated? We did not hear 17 an answer. 18 MR. HIRSHMAN: There was an 19 answer. His answer was yes. 20 Q. Where are you located now, doctor? 21 A. At the office. 22 Q. What is the address for your office? 23 A. 1663 West Big Beaver. 24 Q. That's two words, right? 25 A. Three words, yes. 5 1 Q. That's in Troy, Michigan? 2 A. Right. 3 Q. Do you have with you your file in this case, this 4 lawsuit? 5 A. Yes. 6 Q. Do you have everything with you or did you leave 7 documents, other documents somewhere else? 8 A. I have everything that I've ever had. 9 - - - - 10 (Thereupon, Clancy Exhibit A, 11 three-page CV, was marked for purposes of 12 identification.) 13 - - - - 14 Q. Now, we've had two documents marked here. 15 Exhibit A is what I believe to be your curriculum 16 vitae. 17 Do you have your CV with you? 18 A. Not right in front of me. 19 Q. Okay. The document I have is three pages long. 20 I don't see any date on it other than a date it 21 was apparently faxed. 22 Does that sound about right? 23 A. Yes. And that would be up to date. 24 MR. HIRSHMAN: Susan, I just 25 provided him with a copy of it. 6 1 MS. REINKER: It's the same one I 2 have, do you think? 3 MR. HIRSHMAN: Pardon me? 4 MS. REINKER: Does it seem to be 5 the same one you guys sent to me? 6 MR. HIRSHMAN: It's three pages 7 in length and it looks to me to be the same 8 as the one that we had. 9 - - - - 10 (Thereupon, Clancy Exhibit B, 11 three-page Clancy letter to Ruf, was marked for 12 purposes of identification.) 13 - - - - 14 Q. Okay. The second document that we have marked as 15 Exhibit B is a letter that you wrote to Mr. Mark 16 Ruf. 17 Do you happen to have that letter with you? 18 A. Yes. 19 Q. There is no date on the copy of the letter that I 20 have. 21 Is there one on yours? It's two pages and 22 one line on the top of the third page. 23 MR. HIRSHMAN: I don't see any 24 date on it, either, Susan. 25 A. A transcription date? No. No date. 7 1 Q. That document we have marked as Exhibit B. 2 Have you had a chance to review your report 3 recently? 4 A. Yes. 5 Q. Dr. Clancy, how did you happen to get involved in 6 this matter? 7 A. I was trying to recall that. I think I was 8 contacted by another physician who's been asked 9 to review this matter. 10 Q. Who was that? 11 A. Dr. Joel Kahn, I believe. 12 Q. I was wondering if you knew Dr. Kahn. 13 A. I do. 14 Q. How did Dr. Kahn -- or why did he call you? 15 MR. HIRSHMAN: If you know. 16 A. He and I had worked on a case, reviewed a case 17 before probably some years ago and he knew that 18 they were looking for a surgeon to review this 19 case. 20 Q. Are you personal friends with Dr. Kahn? 21 A. Yes. 22 Q. Do you socialize together? 23 A. No. 24 Q. Are you in any way related? 25 A. No. 8 1 Q. Was he one of your students in the past? 2 A. I think he was at one time. We did train at the 3 University of Michigan together. He is a medical 4 doctor and I am a surgeon and he does send us 5 patients out of his practice at Beaumont so we're 6 also colleagues. 7 Q. Do you ever send him patients? 8 A. It would be unusual for a surgeon to send a 9 cardiologist a patient. I don't recall ever 10 having done that. 11 Q. Like perhaps after you have done surgery, a 12 patient may need some cardiology follow-up or you 13 may have some other patients that might need 14 follow-up? 15 A. Oh, we would send his own patients back to him, 16 certainly. 17 Q. Roughly how many patients do you and Dr. Kahn 18 share? Can you give me any estimate of that? 19 A. I wouldn't think it would be any more than 20. 20 Q. When you said you worked on a case before, do you 21 mean a legal matter? 22 A. Yes. 23 Q. In that legal matter, did you both testify as 24 expert witnesses? 25 A. We both provided expert reviews but I can't even 9 1 recall the case. I don't know exactly what his 2 involvement was. I don't recall if I testified 3 or not or if I just reviewed it. 4 Q. Do you recall if the two of you had been retained 5 by the lawyer representing the patient or 6 representing the doctor? 7 A. It would have been the doctor. 8 Q. Do you have any recollection of what the facts in 9 that case were or what the medical problem at 10 issue may have been? 11 A. No, I don't. 12 Q. Did it have anything to do as best you recall 13 with an aortic dissection? 14 A. I don't recall. 15 Q. I'm sorry, what was the answer again? 16 A. No, I don't recall. 17 Q. How long ago was that? 18 A. I can't even be specific as to that. It would 19 have been within the last five years. It 20 certainly wasn't recent enough for me to recall 21 the details. 22 Q. How often do you and Dr. Kahn see each other, on 23 a weekly basis? 24 A. Once a month. 25 Q. Have you ever discussed this case other than that 10 1 initial phone call? 2 A. No. 3 Q. When Dr. Kahn contacted you, do you know whether 4 he had already prepared his report on behalf of 5 the plaintiff? 6 A. No, I don't. 7 Q. Did he tell you what his thoughts about the case 8 were? 9 A. As I recall, he didn't tell me any aspect, any 10 details of the case at all. He just gave me 11 Mr. Ruf's phone number. 12 Q. And after that, did you then talk to Mr. Ruf? 13 A. Yes. 14 Q. Had you ever been involved in any cases before 15 with Mr. Ruf? 16 A. No. 17 Q. Was that a no? 18 A. No. 19 Q. Do you happen to know Mr. Ruf's father, who is a 20 physician? 21 A. No, I don't. 22 Q. Have you ever been involved in any cases with 23 Mr. Hirshman before this one? 24 A. No. 25 Q. Other than this current case, are there any more 11 1 cases that you have looked at or that you will be 2 involved in in the future for either one of them? 3 A. Not as I'm aware. There's nothing ongoing. 4 Q. Now, you've told me that the name of your group 5 is what, was it southern or southeastern? 6 A. Southeastern. 7 Q. Southeastern Michigan Cardiac Surgeons, right? 8 A. Right. 9 Q. How many physicians are in that group? 10 A. There's 12. 11 Q. Are they all surgeons? 12 A. Yes. 13 Q. Do you hold any administrative position or any 14 elected office with that corporation? 15 A. No. 16 Q. How long have you been a member of that group? 17 A. Since 1983. 18 Q. Did you become an employee of that group 19 immediately when you finished your training? 20 A. Yes. 21 Q. Was the group already in operation or did you 22 help to found it? 23 A. We founded it. 24 Q. I gather you still perform surgery? 25 A. Currently I'm assisting on surgery. I've cut 12 1 back my schedule. I'm not performing operations 2 directly. I'm doing some administrative things 3 and assisting and doing some clinical work in the 4 hospital. 5 Q. At some point in time, I gather, you were trained 6 to perform surgery? 7 A. Yes. 8 Q. When is the last time you performed surgery? 9 A. 1999. 10 Q. Without prying into anything personal, is there 11 any particular reason why you've cut back? 12 A. Mainly because of the lifestyle. After 20 years. 13 Q. Do you recall what the last surgery was that you 14 performed? 15 A. It was probably a coronary bypass operation. 16 Q. How many hours a week are you working now? 17 A. Probably about 25, 25 to 30. 18 Q. And you said you perform some administrative 19 duties and do some clinical work? 20 A. Yes, in the hospital, and I'm in the operating 21 room every day assisting with cardiac surgery, my 22 associates. 23 Q. But you are not operating as the lead surgeon 24 anymore? 25 A. Right. 13 1 Q. Roughly how many surgeries are you doing now a 2 week, are you assisting at a week? 3 A. About six. 4 Q. What sort of administrative duties are you 5 performing? 6 A. Helping to run the office mainly. I don't have 7 any appointed duties, but looking after some of 8 the overhead and receivables, things like that. 9 Q. Staffing issues? 10 A. Yes. 11 Q. Roughly how many hours a week do you spend in 12 your administrative duties? 13 A. Maybe an hour. 14 Q. And then I think you said you were doing some 15 clinical work as well? 16 A. If I'm in the hospital, I'll see some patients, 17 make rounds and things. That would only be 18 another hour or two a week. 19 Q. So basically you're assisting at one surgery a 20 day and then you spend some time in these other 21 duties and then you're free to leave? 22 A. Some days two surgeries. 23 Q. Are you on call anymore? 24 A. No. 25 Q. Was that a no? 14 1 A. No. 2 Q. No, that was not a no or the answer was no, you 3 are not on call? 4 A. No, that's a no. 5 Q. Do you currently hold any teaching positions? 6 A. I'm a clinical associate professor at Wayne State 7 University. 8 Q. How long have you held that position? 9 A. Probably since about 1985. 10 Q. Did that appointment come automatically when you 11 joined one of the hospital staffs? 12 A. No. It came after working here a couple years. 13 Q. What do you have to do now to maintain that 14 title? 15 A. Maintain my staff privileges. I don't have any 16 -- it's, as you say, a title. It doesn't require 17 any responsibility. It was a clinical title for 18 helping to teach the residents when I worked down 19 there. 20 Q. So you don't have any obligation to teach three 21 classes a year or to write a certain number of 22 articles or anything like that in order to 23 maintain that title? 24 A. No. It's not that kind of appointment. 25 Q. Which of the hospitals, let me start that over 15 1 again. 2 When you got that title, it was by joining 3 one of the particular hospital staffs. Which 4 hospital? 5 A. Harper Hospital. 6 Q. That's in Detroit? We didn't hear that answer. 7 A. Yes. 8 Q. Harper Hospital. Do you still have privileges at 9 Harper Hospital, I gather? 10 A. Yes. 11 Q. How many of the surgeries that you assist at are 12 done at Harper Hospital? 13 A. None. We really don't go down to Harper Hospital 14 anymore. 15 Q. So all of your doctors in the group can maintain 16 the title by being on the staff at Harper but you 17 don't practice there anymore? 18 A. I don't personally. Some of my other associates 19 do a few cases down there. 20 Q. Do you have any teaching duties at the present 21 time? 22 A. No. 23 Q. The kind of surgeries that you're now assisting 24 in, what sorts of procedures are they? 25 A. The whole range of adult cardiac surgery, 16 1 coronary bypass, valve surgery, aortic surgery. 2 Q. Do you have any division in your group between 3 certain surgeons prefer to concentrate on hearts 4 and other surgeons prefer to concentrate on the 5 great vessels? 6 A. No. 7 Q. When is the last time you were involved in any 8 kind of a procedure to deal with an aortic 9 aneurysm? 10 A. Probably about, it would have been within the 11 last month. 12 Q. Do you recall what kind of an aneurysm it was? 13 A. It was an ascending aortic aneurysm. 14 Q. And that would have to be thoracic? 15 A. Yes. 16 Q. Did that involve a dissection or was it just a 17 straight aneurysm? 18 A. It was a straight aneurysm. 19 Q. Do you recall the last time you were involved in 20 a case involving a dissection? 21 A. It would have been within the last three months. 22 Q. Can you recall that case where you worked on the 23 case involving the dissection? 24 A. Only that it was a type one dissection, an 25 ascending aortic dissection. 17 1 Q. Do you recall how far it extended? 2 A. No. 3 Q. Do you recall was there any particular cause or 4 event that had occurred that was thought to be 5 the cause of that aneurysm? 6 A. No, I don't recall. 7 Q. I mean, that dissection, I'm sorry. 8 How many cases a year would you assist at 9 which involved an aortic dissection, a type one? 10 A. Between five and ten. 11 MR. HIRSHMAN: Did you say a 12 year? Was that the question? 13 Q. Per year, yes, is what I said. Per year. 14 What hospitals do you currently hold 15 privileges at? 16 A. William Beaumont Hospital in Detroit, or in Royal 17 Oak, actually. Providence Hospital in 18 Southfield. Harper Hospital in Detroit. 19 St. John Hospital in Grosse Pointe. Oakwood 20 Hospital in Dearborn. I think that's it. 21 Q. You said William Beaumont was the first one. Was 22 there another name for that? 23 A. No. 24 Q. I'm sorry, then, what was the second hospital you 25 named? 18 1 A. Providence Hospital. 2 Q. Do you still, you said you no longer go to 3 Harper. 4 Any of these other hospitals that you no 5 longer assist at surgeries? 6 A. Most of the work that I still do is at Providence 7 and Beaumont, almost all of it. 8 Q. Have you yourself ever been sued for malpractice? 9 A. Yes. 10 Q. How many times? 11 MR. HIRSHMAN: Objection. 12 A. I'm going to say three. 13 Q. Were they all in Detroit? 14 A. Yes. 15 Q. Did any of those cases have anything to do with 16 an aortic dissection? 17 A. No. 18 MR. HIRSHMAN: Susan, can I have 19 a continuing objection here or do you want 20 me to express myself after each question? 21 MS. REINKER: No, I'd prefer that 22 you not express after each question. 23 MR. HIRSHMAN: That's fine with 24 me. Save me my voice. 25 Q. How long ago was the first case in which you were 19 1 sued for malpractice? 2 A. Actually, they've all come within the last two 3 years I think. 4 Q. Was that two? 5 A. Yes. 6 Q. Did those cases play any role in your decision to 7 cut back on doing surgery? 8 A. Some extent. 9 Q. How did that fit together? Doctor? 10 A. Yes. 11 Q. We didn't hear an answer if there was one. 12 A. It played a small part. I became a little bit 13 disillusioned, but it played a very small part. 14 I really was, after 20 years of 70 hours a week, 15 I decided to cut back a little. That was the 16 main reason. 17 Q. Did anyone ask you to resign your privileges at 18 any hospitals? 19 A. No. 20 Q. Or did anybody cut back or limit your surgical 21 privileges? 22 A. Absolutely not. 23 Q. Was there any impact with regard to your 24 malpractice insurance from those lawsuits? 25 A. No judgments have been rendered against me. 20 1 Q. Are they all still pending? 2 A. Yes. 3 Q. Did any of those three cases involve the death of 4 a patient? 5 A. Yes. 6 Q. Can you tell me what the first one was about? 7 MR. HIRSHMAN: He's not going to 8 tell you what they're about as long as 9 they're pending. 10 MS. REINKER: Well, he can tell me 11 what they're about. I'm not going to get 12 into the facts. He can tell me what they 13 had to do with. 14 MR. HIRSHMAN: He can tell you in 15 general terms what they were about but I'm 16 not going to let him get into a description 17 of cases that are still pending. 18 Q. Can you recall the names of any of the patients? 19 A. No. 20 Q. None of them? 21 A. I can recall the name of the last one. 22 Q. What was that patient's name? 23 A. I'm not telling you. 24 MR. HIRSHMAN: And I'm not going 25 to let him tell you. If you want to know a 21 1 little bit about the general nature of 2 those cases, you can ask that question, but 3 he's not going to jeopardize his position 4 in those cases by your inquiry here. 5 Q. Have you given deposition testimony in any of 6 those cases? 7 A. One case. 8 Q. Can you tell me the name of that case, please? 9 A. No. 10 Q. Are they all pending in what county? 11 A. Oakland County. 12 Q. Was that Oakland County? 13 A. Yes. 14 Q. Can you tell me the general nature of each of 15 those cases, please. Start with the first case. 16 A. First case was a 50-year-old gentleman who had a 17 small stroke after a routine bypass operation. 18 Q. And did he die or -- 19 A. No, he's fine. 20 Q. What was the second one? 21 A. The second one is a patient who had unstable 22 sternum after a bypass operation. 23 Q. What was the third? 24 A. The third was a patient that died after a second 25 time, after having had a stroke during a second 22 1 time operation. 2 Q. What kind of surgery was being performed when he 3 had the stroke? 4 A. Bypass surgery. 5 Q. And was the cause of his death thought to be the 6 stroke? 7 A. Yes, by some. 8 Q. Have you ever been involved in a surgery to 9 repair an aortic dissection or an aortic aneurysm 10 where the patient expired either in surgery or in 11 the postop period? 12 MR. HIRSHMAN: Where the patient 13 what? 14 Q. Died. 15 A. Died? 16 Q. Yes, expired. 17 A. Yes. 18 Q. Now, I asked you, I combined both aortic 19 dissection surgery and aortic aneurysm surgery. 20 Let's just talk about dissections. 21 Have you ever been involved in a surgery for 22 an aortic dissection in which the patient died? 23 A. Yes. 24 Q. Do you recall approximately how many times? 25 A. Two or three, I would say. 23 1 Q. Were those cases where the patient died on the 2 table or died in the postop period? 3 A. One died on the table that I recall. I think the 4 other ones, however many there were, two, or, one 5 or two or three, died in the postop period. 6 Q. Do you recall what the cause of the deaths were 7 in the postop period? 8 A. No, I don't. 9 Q. In the patient who died on the table, do you 10 remember how that happened? 11 A. Yes. 12 Q. Could you tell me, please. 13 A. He arrested as he was being put to sleep and he 14 exsanguinated before we could do anything for 15 him. 16 Q. Have you ever had a case where a patient died 17 before you got them to surgery? The diagnosis 18 was being made or was suspected but they died 19 before the surgery could begin? 20 A. No, not that I recall. 21 Q. Do you happen to know from the literature what 22 percent of patients with aortic dissections are 23 not diagnosed until autopsy? 24 A. No, I don't know that. 25 Q. Have you ever seen, you're not familiar with any 24 1 studies on that? 2 I'm sorry, we didn't hear the answer. 3 A. No, I'm not. 4 Q. Would you agree that the diagnosis of an aortic 5 dissection can be a difficult diagnosis to make? 6 A. Yes. 7 Q. Now I'm looking at your curriculum vitae here, 8 which is Exhibit A. I gather you completed your 9 training in cardiothoracic surgery in 1983? 10 A. Yes. 11 Q. From that point on was your practice concentrated 12 entirely in cardiothoracic surgery? 13 A. Yes. 14 Q. You never took some time off to practice another 15 field of medicine? 16 A. No. 17 Q. You've never done any training in emergency room 18 medicine? 19 A. When I was a senior surgery resident at the 20 University of Michigan, I ran the residents 21 program in the Chelsea emergency room for two 22 years and worked there for another two years as 23 kind of a moonlighting opportunity. I probably 24 worked, oh, 50 hours a month. 25 Q. Now, you said that was when you were a senior 25 1 resident? 2 A. Yes. 3 Q. Now, I see you were a chief resident from '80 to 4 '81; is that right? 5 A. Yes. 6 Q. And after that, you did your fellowship? 7 A. Yes. 8 Q. So what years approximately would you have been 9 doing this emergency room work? 10 A. The last two years I was a general surgery 11 resident and the first year I was a cardiac 12 resident, so we're talking '79 to '81, something 13 like that. 14 Q. Were they even repairing aortic dissections back 15 then? 16 A. Yes. 17 Q. That's the last exposure you had to emergency 18 medicine or practicing as an emergency physician? 19 A. Yes. 20 Q. I gather you do not currently attend seminars for 21 emergency room physicians on a routine basis? 22 A. That's correct. 23 Q. And you do not subscribe to any of the literature 24 in emergency medicine? 25 A. That's correct. 26 1 Q. You have not published in the field of emergency 2 medicine, have you? 3 A. No. 4 Q. And in fact, if my curriculum vitae is the same 5 one you're looking at, the last publication you 6 had was in 1985? I'm sorry, was there an answer? 7 A. Yes, that's true. 8 Q. And it looks to me as though all of your 9 publications had to do with problems with the 10 esophagus; is that right? 11 A. Yes. 12 Q. Were these things that came out of the years you 13 were working as a general surgery resident? 14 A. General surgery resident and during my cardiac 15 fellowship, not -- no work was done in that area 16 past 1983. 17 Q. You have not operated on the esophagus since 18 1983? 19 A. I may have once or twice as an emergency. 20 Q. Has your license to practice medicine ever been 21 suspended? 22 A. No. 23 Q. Revoked? 24 A. No. 25 Q. Investigated? 27 1 A. No. 2 Q. Have you ever been asked to leave or resign from 3 a hospital staff? 4 A. No. 5 Q. Or any position of employment? 6 A. No. 7 Q. Have you ever been asked to resign from any 8 professional organizations? 9 A. No. 10 Q. The hospitals with which you're most familiar, 11 the two where you're operating, was that Beaumont 12 and Providence? 13 A. Yes. 14 Q. Are they large teaching institutions? 15 A. Both of these hospitals have general surgery 16 residencies and a number of medical residency 17 positions but no cardiac training. 18 Q. Do they have a separate suite of operating rooms 19 for the cardiothoracic surgeries? 20 A. We have a designated set of rooms, yes. 21 Q. How many at Beaumont? 22 A. Four. 23 Q. How many at Providence? 24 A. Two. 25 Q. Do they make any attempt to keep any of those 28 1 rooms free for emergencies, open? 2 A. No. 3 Q. So it may be that an emergency procedure comes in 4 and they just have to wait for a room? 5 A. No. Those are designated operating rooms for 6 cardiac surgery but we can do cardiac surgery in 7 any of the main operating rooms in the suite. 8 Q. Do they have any policies at either of those 9 hospitals to keep a room free for emergency 10 cases? 11 A. That, I can't tell you. 12 Q. And I presume even if they did and an emergency 13 came in, the room would then be in use? 14 MR. HIRSHMAN: Or it may not be 15 in use. 16 Q. But I mean -- 17 A. All I can tell you is that in my experience, if I 18 have an emergency, I don't have to wait. 19 Q. Have you ever had a case where there was just 20 simply no room to do it in? 21 A. Not where it was more than 30 minutes or it 22 impacted the patient's treatment. 23 Q. Do you have any familiarity with the surgical 24 suite at the Cleveland Clinic? 25 A. No, I don't. 29 1 Q. You've never been down there for a seminar or 2 toured around or looked at things? 3 A. No, I haven't. 4 Q. So you would have no idea how many operating 5 rooms they have available? 6 A. I do not. 7 Q. And you would have no idea what their daily 8 surgical schedule looks like for CT surgery? 9 A. No, I don't. 10 Q. When you were operating, did you do surgeries on 11 both type one and I think, what is it, type two 12 dissections? 13 A. I have, yes. 14 Q. Did you consider yourself subspecialized in any 15 field of CT surgery when you were still 16 operating? 17 A. No. 18 Q. You would just do anything that came along and 19 required your assistance? 20 A. Any adult procedure, yes. 21 Q. Now, you've got materials in front of you there. 22 You said your complete file, correct? 23 A. Correct. 24 Q. Does that contain any correspondence that you 25 received from Mr. Ruf or Mr. Hirshman? 30 1 A. No. 2 Q. Nothing at all? 3 A. I have nothing in here that I received from them. 4 Q. Has anything been removed from that file? 5 A. Removed? 6 Q. Yes. 7 A. That, I can't tell you directly. This file has 8 been in my office. It hasn't been in my personal 9 possession. 10 Q. I'm trying to figure out when you first got the 11 review materials and I presume there would have 12 been some sort of a transmittal letter. 13 You don't have anything like that, though? 14 A. No. Well -- 15 Q. Can you give me -- 16 A. I should have received one at one time but I 17 don't have it in front of me. 18 Q. Can you give me some idea of when you first 19 received materials in this case? 20 A. I have one letter dated February 1st setting the 21 deposition. The cover letter, I'm certain there 22 was a cover letter but I don't have that. I 23 probably pitched that. 24 Q. Can you give me any idea when you first got 25 involved in the case? 31 1 A. No, I can't. It was three or four months ago. 2 That would be my best guess. 3 Q. Well, I think this report was produced a long 4 time before that, if I'm not mistaken, because 5 this lawsuit was filed and then dropped and then 6 refiled. 7 How about a bill? Do you have your bill 8 there that you've submitted to Mr. Hirshman or 9 Mr. Ruf? 10 A. That, I probably do have. My secretary probably 11 has that. 12 Q. I would just like to get an idea, if we can, you 13 know, maybe there's a date you billed for 14 preparing the report? 15 A. All right. Excuse me for a second. 16 Q. Sure. 17 - - - - 18 (Off the record.) 19 - - - - 20 Q. Doctor, did I hear you say that your secretary is 21 looking for that so we can find the date? 22 A. She's looking for it. 23 Q. And I think you told me this is the only report 24 you've prepared, correct? 25 A. Yes. 32 1 Q. Do you have any other handwritten materials, 2 notes or anything that you've put into your 3 computer that you generated when you reviewed the 4 materials? 5 A. No. 6 Q. No notes at all? 7 A. None. 8 Q. Did you receive everything in one packet or have 9 you been receiving materials periodically to 10 review? 11 A. I think I got everything at once. 12 Q. Can you tell me what it is you have there in 13 front of you, just list everything. 14 A. I've got the letter that I dictated. I've got 15 the hospital chart from the 12/7 admission. 16 Q. Is that both the ER and the CDU chart? 17 A. Yes. Then I've got some depositions here. 18 Dr. Gajdowski's deposition. Dr. Kaforey's 19 deposition. An LPN deposition, Ruth Tlacil. 20 Donna Keating. Robert Bianchi. Donna 21 Broncaccio. Toni Bianchi. Then I've got an 22 older hospital admission, it looks like. 23 MR. HIRSHMAN: Those are Kaiser 24 outpatient records. 25 A. Okay. Kaiser outpatient records. 33 1 Then I've got an autopsy report. 2 MR. HIRSHMAN: That's another 3 deposition. 4 A. Then I've got a deposition of Terry Doster. 5 Deposition of Dr. Haluska. That's it. 6 Q. Have you seen any of the other expert reports? 7 A. No. 8 Q. You haven't seen anything from either of the 9 other experts on behalf of the patient, 10 Mrs. Broncaccio, or the expert reports that I 11 have produced? 12 A. No. This is all I have. 13 Q. You've never seen Dr. Kahn's report? 14 A. Nope. 15 Q. And never talked to him about it? 16 A. No. 17 Q. Have you seen the deposition of Dr. Mulliken, the 18 emergency room expert? 19 A. No, I haven't. 20 Q. Have you ever talked to any of the family members 21 about this case on the telephone maybe? 22 A. No. 23 Q. Have you discussed this case with anyone other 24 than Mr. Hirshman or Mr. Ruf? 25 A. No, I haven't. 34 1 Q. Did you actually read and review all of those 2 depositions, everything you were sent? 3 A. I skimmed everything, yes. 4 Q. Is there anything else that you have asked to 5 review before the trial in a few weeks? 6 A. No. 7 Q. Do you feel you need to look at anything else 8 before you can really render your opinions? 9 A. Before the trial, I'd like to see all the 10 pertinent material, of course. 11 Q. What else would you like to see that you don't -- 12 A. Any depositions that I don't have. I think I 13 have all the factual material. 14 Q. Do you feel that you have enough information 15 today to render your opinions? 16 A. Yes. 17 Q. Now, you've said you've had a chance to review 18 your report recently? 19 A. Yes. 20 Q. Do you still stand by the opinions that you 21 rendered in that report? 22 A. Yes. 23 Q. Does that report fairly and accurately state the 24 opinions you're going to be rendering at trial in 25 this case? 35 1 A. Yes. 2 Q. Is there anything in the report that you would 3 like to correct, change or add to? 4 A. This report provides the framework of my opinion 5 in the case at this time. It's certainly not 6 all-inclusive. 7 Q. I realize that there are probably factual things 8 you would like to talk about in support of your 9 opinions, but are there any new opinions that you 10 have that were not stated in the report? 11 A. No. 12 Q. Now, if you'll turn to Page 2 of the report, do 13 you have that there? 14 A. Yes. 15 Q. In the second last paragraph, you set forth three 16 ways in which you feel the care was 17 inappropriate. Do you see that paragraph? 18 A. Yes. 19 Q. Number one was the failure to outline a clear, 20 progressive differential diagnosis and a 21 treatment plan. 22 Is that still your opinion? 23 A. Yes. 24 Q. And then you render the opinion that not offering 25 the patient treatment for ongoing chest 36 1 discomfort when a diagnosis of an MI had been 2 ruled out, that was below standard of care. 3 Do you still hold that opinion? 4 A. Yes. 5 Q. And the third way you say the care was below 6 standards was a failure to appreciate a new 7 complaint of back pain in light of the patient's 8 history. 9 Do you still hold that opinion? 10 A. Well, failure to appropriately address it. I 11 think it was appreciated. 12 Q. I'm sorry, I might have misspoken. Failure to 13 appropriately address the patient's new complaint 14 of back pain in light of her history and negative 15 cardiac workup, et cetera? 16 A. Yes. 17 Q. That is still your opinion? 18 A. Yes. 19 Q. And those are the three ways in which you feel 20 the care fell below standards in this case? 21 MR. HIRSHMAN: Susan, you've got 22 a whole report there and if you're 23 attempting to exclude the rest of his 24 report by focusing on this paragraph, I'm 25 objecting. 37 1 Q. Well, doctor, are there other ways other than 2 those three in which you feel the care fell below 3 standards? 4 A. At this time, as I said, this letter is an 5 outline of my impressions of the case at this 6 time; but it is by no means all-inclusive. 7 MR. HIRSHMAN: For instance, 8 Susan, he clearly renders opinions on 9 causation that are not included in that 10 paragraph. 11 Q. We are not talking about causation at the moment. 12 We're talking about standard of care and I'm 13 asking the doctor is there any other way other 14 than those three listed items in which you feel 15 the care rendered was below standard. 16 A. Not that I can recall at this time. 17 Q. Now, if you'll turn to the first page of your 18 report, if I'm reading this correctly, you say 19 that the differential diagnosis should have 20 included four things: Chest discomfort, syncope, 21 rule out MI, rule out unstable angina, rule out 22 aortic dissection and rule out gastritis, 23 esophagitis, correct? 24 A. At the time of her admission -- I don't think 25 that the differential diagnosis is a static 38 1 thing. It's something that's evolved but I think 2 this would be a good way to start in evaluating 3 someone with her complaints. 4 Q. So you think those four things should have been 5 included in the differential diagnosis? 6 A. Initially, yes. 7 Q. And you agree that two out of the four are 8 cardiac in origin, an MI or unstable angina? 9 A. Yes. 10 Q. Would you agree that viewing this patient as she 11 entered the emergency room that evening, the most 12 likely explanation for her symptoms would be 13 something cardiac? 14 A. Yes, I would. 15 Q. And you believe those two things could have been 16 an MI or it could have been angina? 17 A. Yes. 18 Q. Now, is it your testimony that an MI, an acute MI 19 is ruled out by one set of cardiac enzymes? 20 A. Most of the time, but not always. 21 Q. What percent of the time is an MI ruled out by 22 one set of cardiac enzymes? 23 A. I think if the patient presents with between at 24 least a one or two hour history of chest pain or 25 chest discomfort enough to bring them to the 39 1 emergency room, that two-thirds of those patients 2 would be ruled in or out with the first set of 3 enzymes. 4 Q. So roughly 66 percent? 5 A. Right. 6 Q. But 33 percent would not be ruled out by the 7 first set of cardiac enzymes? 8 A. I think that's true. 9 Q. How many, do you know anything about the ER 10 protocol at Beaumont Hospital? 11 A. For? 12 Q. Well, let me start over again, the two hospitals 13 where you work, Providence and Beaumont, do they 14 have emergency rooms? 15 A. Yes. 16 Q. Have you ever worked in either of those emergency 17 rooms? 18 A. No. 19 Q. Do either of them have a unit associated with the 20 ER that, they used to be called chest pain units, 21 you know, someplace where a patient would be put 22 for longer term observation? 23 A. Yes. 24 Q. Do they both have such a unit? 25 A. Yes. 40 1 Q. What are they called? 2 A. Chest pain units. 3 Q. Oh, okay. 4 In this case, it's called the CDU. 5 A. Okay. 6 Q. Same kind of an idea, an observation place. 7 At Beaumont, do you know anything about the 8 policies or protocols for the ER and the chest 9 pain unit? 10 A. No. 11 Q. Are they associated physically close to each 12 other? 13 A. Yes. 14 Q. Are they manned or I should say personed by the 15 same physicians? 16 A. I can't say for sure but I think so. 17 Q. So the ER physicians would also be in some way 18 involved in the chest pain unit? 19 A. Yes, but I think an admission to the chest pain 20 unit at Beaumont also immediately elicits a 21 cardiology consult, but I think the primary 22 responsibility still remains with the ER 23 physician while the patient's down there. 24 Q. At Beaumont do they admit other patients to this 25 unit other than chest pain or is it only chest 41 1 pain? 2 A. Only chest pain. 3 Q. How about at Beaumont? 4 A. I think it's also a designated chest pain unit. 5 Q. Do either of these hospitals have an observation 6 unit where patients with problems other than 7 chest pain can be admitted for observation rather 8 than just be sent home? 9 A. Yes. 10 Q. Is that something separate from the chest pain 11 unit? 12 A. At Beaumont they do. It's called the short stay 13 unit at Beaumont. 14 Q. So at Beaumont they have both a chest pain unit 15 and a short stay unit? 16 A. Yes. 17 Q. Are they both affiliated with the ER physicians? 18 A. Yes. 19 Q. And is the ER physician responsible for both of 20 those units? 21 A. Yes, they are. I know they are on the short stay 22 unit for sure. I can tell you that by 23 experience. 24 Q. Is that Mr. Hirshman or is that some other 25 conversation going on? 42 1 MR. HIRSHMAN: That's a door 2 that's not very thick so you're hearing a 3 hallway conversation. 4 Q. Do you know at Beaumont how long a patient can 5 remain in the chest pain unit? 6 A. That, I don't know. 7 Q. How about the short stay? 8 A. 23 hours. 9 Q. I'm sorry, how long? 10 A. 23 hours. 11 Q. Do you have any idea whether a patient could 12 remain in the chest pain unit that long or are 13 they generally transferred out more quickly than 14 that? 15 A. More quickly than that I would think; but if the 16 CCU is full, I'm sure they could accommodate 17 longer there. 18 Q. But you don't know about either of those units, 19 what the policies or protocols would be? 20 A. No. 21 Q. How about over at Providence, do they have both 22 units? 23 A. That, I know they have a chest pain unit but I 24 don't know about a short stay unit. 25 Q. Do you know anything about the length of time the 43 1 patients at Providence can remain in the chest 2 pain unit? 3 A. No. 4 Q. Do you know whether that unit is also staffed by 5 the ER physicians at Providence? 6 A. It is. 7 Q. Do you know anything about the staffing or the 8 number of physicians who are assigned to be on 9 duty in the ER at either of those hospitals 10 during the nighttime hours? 11 A. No. 12 Q. Do you know when a patient is admitted to the 13 chest pain unit at either of those two hospitals 14 during the nighttime hours when a cardiologist 15 would come in to take a look at them? 16 A. At Beaumont it would be done by a cardiology 17 fellow or the staff person as soon as the consult 18 was made because the cardiology fellow is in the 19 hospital around the clock. 20 And the same at Providence. 21 Q. So they both have residents on duty all night or 22 fellows? 23 A. Fellowship programs, yes. 24 Q. Do you work at any hospitals where there are not 25 fellows or residents on duty overnight? 44 1 A. No. 2 Q. Now, when you looked in your report, again I'm 3 looking at the first page, in your opinion 4 Mrs. Broncaccio's EKG had nonspecific changes? 5 A. Yes. 6 Q. Which EKG were you referring to? 7 MR. HIRSHMAN: The set of records 8 you reviewed are here. Here you go, 9 doctor. 10 A. There were a couple of them, 7 December, 1997. 11 There's two from that date. 12 Q. 12/7, you said? 13 A. 12/7. 14 Q. So that's the ones taken during, around the time 15 of her admission? 16 A. Yes. 17 Q. Now, do you believe that EKG showed nonspecific 18 changes? 19 A. Yes. 20 Q. Could those nonspecific changes be consistent 21 with an MI? 22 MR. HIRSHMAN: Susan, why don't 23 we put a time on it? There are a couple of 24 EKGs there. 25 MS. REINKER: I think on December 45 1 7th, there's only one. 2 MR. HIRSHMAN: You're right. 3 Q. I think you're looking at two copies of the same 4 one or maybe some rhythm strips. I don't know. 5 A. Yeah. 6 Q. It's at 2331? 7 MR. HIRSHMAN: Yes. That's 8 right. 9 A. Yes, one EKG. It does not in my opinion show 10 myocardial infarction. 11 Q. The 2331? 12 A. Yes. 13 Q. Now, in your report, you say that in light of 14 these nonspecific changes, she should have been 15 treated as an acute MI until cardiac enzymes were 16 returned. 17 Do you see that statement? 18 A. Yes. I still think until the enzymes were 19 returned, she should be treated as a cardiac 20 patient. 21 Q. So you agree a patient can have an EKG which is 22 maybe normal or maybe nonspecific and still be 23 having an acute MI? 24 A. Yes. The chances of this EKG showing acute 25 infarction are low but that doesn't mean the 46 1 patient doesn't have a cardiac problem. 2 Q. What other cardiac problems might she have if not 3 an MI? 4 A. Unstable angina. 5 Q. Any other cardiac problems you can think of that 6 would be consistent with this EKG? 7 A. Not given the patient's presentation. 8 Q. But her presentation and this EKG would be 9 consistent with unstable angina? 10 A. Among other things. 11 Q. But unstable angina would be a diagnosis 12 consistent with this EKG and the patient's 13 presentation? 14 A. Yes. 15 Q. Now, on the first page of your report here, you 16 suggest that, the bottom paragraph again, that 17 Mrs. Broncaccio should have received intravenous 18 nitroglycerin? 19 A. Yes. 20 Q. What about her presentation warranted IV 21 nitroglycerin? 22 A. The fact that she had ongoing chest pain. 23 Q. Now, you're aware her chest pain was described as 24 two or four out of ten? 25 A. That is of no consequence. 47 1 Q. So it would not matter what degree of chest pain 2 a patient was having? 3 A. No. 4 Q. You would agree that many, many things can cause 5 a patient to have chest pain in the range of two 6 to four out of ten? 7 A. Not many, many things with this presentation. 8 Q. Well, a patient with chest pain described -- I 9 think you said it was the chest pain which 10 warranted giving her IV nitroglycerin? 11 A. Chest discomfort. The presentation of syncope, 12 yes. 13 Q. Would you agree that there are many things that 14 can cause chest discomfort in the range of two to 15 four over ten? 16 A. Yes. 17 Q. You are aware that Mrs. Broncaccio was on a 18 monitor during the time she was in the ER? 19 A. Yes. 20 Q. And you're aware she continued to be on a monitor 21 when she went to the CDU? 22 A. Yes. 23 Q. So she was closely monitored. Would you agree 24 with that? 25 A. She was on a cardiac monitor but that doesn't 48 1 mean she was closely monitored. 2 Q. Do you think this lady was not closely monitored? 3 A. For a lady having ongoing chest pain, I have some 4 serious reservations. 5 Q. Do you have any idea what percent of patients 6 present to an ER in general with a complaint of 7 chest pain two to four over ten? 8 A. No, but I know how they should be treated. 9 Q. You've not worked in an emergency room for many 10 years? 11 A. Correct. 12 Q. I'm just curious where you get your knowledge as 13 to how ER physicians should treat patients in 14 this scenario. 15 A. 20 years as a cardiac surgeon, I know how people 16 with chest pain should be treated from the minute 17 they hit the front door. 18 Q. And your perspective is that of a cardiac 19 surgeon? 20 A. Yes. 21 Q. Now, at the top of the next page, you make the 22 statement, "At this point the diagnosis of acute 23 myocardial infarction should have been 24 eliminated." 25 At what point are you referring to? 49 1 A. In my mind, my level of suspicion would have gone 2 down significantly after the first set of enzymes 3 were returned negative. 4 Q. For an MI; is that correct? 5 A. Yes. It would have led me to consider other 6 things in the differential. 7 Q. Okay. What you're saying, though, is that your 8 level of suspicion of an acute MI would have gone 9 down but there is still the possibility of a 10 cardiac problem? 11 A. Yes. 12 Q. And I think what you're suggesting is that at 13 that point you would have turned to another 14 cardiac, you would have begun investigating 15 another cardiac cause of the problem? 16 A. Yes. 17 Q. You said your level of suspicion would have gone 18 down after the first set of enzymes is returned 19 but again I think we've already agreed that you 20 can't rule out an MI at that point? 21 A. No. But at that point I think it's pretty much 22 academic. You know she's not having a large 23 infarct but I would still consider a cardiac 24 diagnosis above all else at that point. 25 Q. How do you know she's not having a large infarct 50 1 at that point? 2 A. Because from a hemodynamic point, she's stable. 3 Her blood pressure is stable. She's not 4 tachycardic. People with large infarcts become 5 unstable. 6 Q. All the time? 7 A. In my experience, almost all the time. A large 8 infarct, the patient has hemodynamic 9 abnormalities. 10 Q. Is there ever such a thing as a silent infarct? 11 A. Silent in what sense? 12 Q. In the sense that a patient does not appear to 13 demonstrate any symptoms. 14 A. Any symptoms recognizable to the patient? 15 Q. Yes. Which the patient thinks warrant 16 investigation or treatment. 17 A. Silent to the patient, yes, I would agree with 18 that. I think that very few, if any, infarcts 19 are truly silent. I think the word is 20 unrecognized. 21 Q. So I gather, though, just to be clear, you do not 22 think that the diagnosis of an MI was completely 23 eliminated at any time in the emergency room. It 24 merely dropped as far as a potential cause of the 25 problem? 51 1 A. Yes. It would lead me to look now for other 2 causes. 3 Q. Now, you would agree that negative cardiac 4 enzymes would not rule out unstable angina? 5 A. Correct. 6 Q. And you would agree, I gather, that 7 Mrs. Broncaccio's picture in the emergency room 8 would be consistent with a picture of unstable 9 angina? 10 A. Yes. 11 Q. In fact, in that first, at the end of the first 12 paragraph on the top of Page 2, your suggestion 13 was that her transfer to the Cleveland Clinic 14 around one or two in the morning should have been 15 prompted to rule out an impending myocardial 16 infarction? 17 A. That's the definition of unstable angina, 18 impending infarction. 19 Q. So at one or two in the morning, you felt that 20 the second most likely thing this woman -- well, 21 now it becomes the most likely thing because 22 we've ruled out in your opinion an MI as an 23 impending MI because of angina? 24 A. Yes. If the lady is still having chest 25 discomfort, whether or not her enzymes are 52 1 positive becomes academic. She needs to go 2 somewhere where she can be diagnosed and treated. 3 Q. And is it your opinion, then, that every patient 4 who is in one of these chest pain units who has 5 continued discomfort of whatever degree and 6 negative enzymes needs to be transferred 7 immediately for evaluation of an impending MI? 8 A. With EKG changes, yes. 9 Q. Do you have any idea how longstanding those EKG 10 changes were? 11 A. No, I don't. If there are no previous tracings 12 to look at, that wouldn't alter my opinion. I 13 think you have to consider the most 14 life-threatening problem and treat this sort of 15 thing aggressively. 16 Q. And again you don't know what the protocols are 17 concerning this kind of a picture at Providence 18 Hospital or at Beaumont Hospital in their chest 19 pain units? 20 A. I do know what the protocol is at Beaumont 21 Hospital and Providence Hospital for patients 22 that continue to have chest pain with abnormal 23 EKGs. 24 Q. And the chest pain is whatever level, whatever 25 degree? 53 1 A. Abnormal EKG and any chest discomfort which is 2 not relieved promptly by nitroglycerin. 3 Q. These EKG changes in this case, what do you think 4 caused the EKG changes in hindsight? 5 A. In hindsight, given the information at autopsy, 6 probably her hypertension. The changes, 7 nonspecific changes are related to her 8 hypertension. 9 Q. Couldn't these changes be consistent with her old 10 MI? 11 A. It could be but they're not typical for it. 12 Q. Do you have any idea when Mrs. Broncaccio 13 sustained her MI? 14 A. No. 15 Q. No opinion from anything you've looked at? If 16 there was an answer, we didn't hear it. 17 A. I'm taking a look here. 18 Q. Okay. 19 A. No. I can't. I don't have enough, I don't have 20 any information regarding a previous 21 hospitalization, so I can't say for sure. 22 Q. In that paragraph at the top of page two, you 23 suggest she should have gone, at that point been 24 transferred to the Cleveland Clinic for further 25 invasive studies. What invasive studies did you 54 1 have in mind? 2 A. Cardiac catheterization. 3 Q. Would you agree that from the review of the 4 records, it would appear there was only one 5 complaint of back pain? 6 A. One recorded complaint by the nurse around 3:00 7 but that's disputed in some of the depositions. 8 Q. But you would agree there's only one reported 9 complaint or recorded complaint in the chart of 10 back pain? 11 MR. HIRSHMAN: That's not true, 12 and let's be fair about this. 13 Q. Well, okay, there's a complaint of back pressure 14 around 12:30, I think, the next day shortly 15 before her, the final episode? 16 MR. HIRSHMAN: At noon, at 12:00, 17 3:00 and 3:30. 18 Q. Well, doctor -- 19 A. Are you talking about the initial complaint? 20 When her initial complaint of back pain was 21 recorded? 22 MS. REINKER: I think it would be 23 helpful if the doctor testifies and not -- 24 MR. HIRSHMAN: Your question was 25 wrong, Susan. What I'm doing is correcting 55 1 you. I'm not testifying. 2 A. I thought you were referring to her initial 3 recorded complaint. 4 Q. Well, let me start over again. I think I asked 5 you to agree that there was only one complaint 6 recorded in the chart of back pain. 7 MR. HIRSHMAN: I'm telling you 8 that's not what the chart -- 9 MS. REINKER: Well, let me have 10 the doctor tell me that, Toby. I'd prefer 11 that. 12 A. No, that's not the case. 13 Q. Now, would you please tell me when is the first 14 complaint you see recorded of back pain? 15 A. First recorded complaint is 3:00, 3:00 a.m. 16 Q. When is the second recorded complaint that says 17 back pain? 18 MR. HIRSHMAN: You don't want him 19 to talk about the heating pad where the 20 word back pain is not used, right, Susan? 21 MS. REINKER: Well, I presume the 22 doctor right now is looking at the chart 23 for a complaint of back pain. 24 MR. HIRSHMAN: I'm asking. 25 A. Next complaint is at noon. 56 1 Q. That's, again, how is that described? 2 A. Back pressure. 3 Q. Back pressure? 4 A. Right. 5 Q. Now let's assume that the 3:00, if you'll look 6 back at the 3:00 report, it looks as though 7 that's all kind of lumped together in time. Did 8 you see that, 3:00, 3:10, 3:30? 9 A. They're on consecutive lines, yes. 10 Q. Now, other than this episode of back pain around 11 3:00 to 3:30 in the morning, let's assume that 12 was all the same thing, or back discomfort, 13 whatever, that's the only record in the chart of 14 a complaint stating there was back pain until 15 noon the next day, correct? 16 If there was an answer, we didn't hear it. 17 A. Yes, correct. 18 Q. I gather you would agree there could be many 19 potential causes for back pain? 20 A. Yes. 21 Q. Would you agree that lying on a gurney in an 22 emergency room could be a cause of some back 23 discomfort? 24 A. Not a fatal one. 25 Q. Could lying on a gurney in an emergency room 57 1 cause a patient to have some discomfort in their 2 back? 3 A. Yes. 4 Q. How is a physician or how does one go about 5 determining whether the cause of this back pain 6 might be something more serious, is serious or 7 not? 8 A. Well, first you have to suspect something more 9 serious. You have to be alert to what the 10 patient is telling you. 11 Q. Would that be true of -- well, would any patient 12 with -- strike that. 13 In your opinion does a report of one episode 14 of back pain require further action? 15 A. This presentation, absolutely. 16 Q. What about this presentation made that necessary? 17 A. Patient presenting with chest complaints who has 18 basically an EKG that shows no acute infarction 19 and a normal set of cardiac enzymes. 20 Q. Do patients who are having a cardiac problem 21 occasionally demonstrate back pain? 22 A. Yes. 23 Q. So a complaint of back pain can be consistent 24 with a cardiac problem? 25 A. It can; but now when you add the complaint of 58 1 back pain with a working diagnosis of unstable 2 angina, now shift to the third possible diagnosis 3 which is aortic dissection. 4 Q. Do patients with unstable angina ever have back 5 pain associated with their angina symptoms? 6 A. Not without getting a CT scan. 7 Q. You mean a CT scan causes them to have back pain? 8 A. No, but they go get one right away. 9 Q. Well, my question to you is can back pain be 10 associated with unstable angina? 11 A. Yes. 12 Q. Now, I gather in your opinion according to your 13 report, at 3:00 a.m. when the back pain was 14 reported, she should have been transported at 15 that point to the Cleveland Clinic? 16 A. No. Before then. 17 Q. Well, in your report, you say that, I'm looking 18 at the second paragraph on Page 2 now. I got the 19 impression that, I'm sorry. You say she would 20 have been on her way to the Cleveland Clinic and 21 the back pain would have been noted while she was 22 in the ambulance or something? 23 A. I don't, I can't understand how you'd leave a 24 patient with unstable angina in a hospital that 25 can provide no treatment for that problem. So 59 1 when the differential became unstable angina, I 2 would have had the patient transferred right 3 away. 4 Q. And at that point you say somebody in the 5 ambulance would have noticed this back pain? 6 A. It's possible. 7 Q. And I'd like you to assume that Mrs. Broncaccio 8 by the time all the arrangements were made would 9 have arrived at the Cleveland Clinic by roughly, 10 3:00, 3:30 in the morning? 11 A. Probably. 12 Q. I'd like you to assume that there was no 13 complaint of chest or back pain after that. 14 Okay? 15 A. All right. 16 MR. HIRSHMAN: She's allowed to 17 have you assume that, doctor. 18 A. Yes, that's fine. Yes, I understand. 19 Q. Are you aware of any other symptoms or problems, 20 let's say, which began to develop about 5:00 or 21 6:00 in the morning? 22 A. She began to develop some GI complaints. 23 Q. She had had some episodes of diarrhea? 24 A. Yes. 25 Q. Now, diarrhea is not normally associated with an 60 1 aortic dissection, is it? 2 A. It can be, yes. 3 Q. In what circumstances can it be? 4 A. If there's been any kind of irritation to the 5 bowel where the blood supply to the bowel has 6 been temporarily compromised by the dissection, 7 you can get some bowel hyperactivity. 8 Q. Do you hold the opinion that in this case there 9 was compromise to the circulation to 10 Mrs. Broncaccio's bowel by 5:00 a.m.? 11 A. That's not supported by the autopsy, but 12 dissections can cause all kinds of autonomic 13 nervous problems, too, which can affect the GI 14 tract. 15 Q. You said the autopsy does not show evidence of 16 impairment to circulation to her bowel? 17 A. No. 18 Q. So isn't it fair to assume that her diarrhea, 19 then, came from some other cause? 20 A. No. It can be consistent with an aortic 21 dissection. 22 Q. Can her diarrhea also be consistent with a flu or 23 some GI problem? 24 A. Yes. 25 Q. It's certainly possible that this lady had some 61 1 GI complaint going on? 2 A. Yes. 3 Q. Have you ever diagnosed an aortic dissection 4 while working in the emergency room setting? 5 A. Not that I can recall. 6 Q. I would assume that the patients who come, that 7 you see with aortic dissections have already been 8 diagnosed before you ever get to them, before 9 they ever get to you? 10 A. No, that's not true. 11 Q. Well, I would suspect that a lot of them are 12 suspected aortic dissections before the services 13 of a surgeon are called in? 14 A. That's correct. It's, when a diagnosis of aortic 15 dissection is in the differential, we usually get 16 called. 17 Q. And then in those cases, there's some reason to 18 suspect an aortic dissection? 19 A. Correct. 20 Q. By the way, in the first paragraph of your 21 report, you give a description as to the classic 22 presentation for an aortic dissection? 23 A. That's from my experience. I've seen this type 24 of presentation. Many people think that aortic 25 dissection means severe chest pain for hours and 62 1 hours, but I haven't found that to be the case. 2 Q. Would you agree that in the literature, it 3 describes the classic symptoms of an aortic 4 dissection being ripping, tearing, severe chest 5 and/or back pain? 6 A. Yes, that is one of the classic symptoms. 7 Q. Isn't that the classic symptom described in the 8 literature? 9 A. It's the hallmark, certainly. 10 Q. Would you agree that Mrs. Broncaccio's 11 presentation was atypical? 12 A. Yes. 13 Q. On Page 2 of your report, you make the statement, 14 the last sentence in your second paragraph, "The 15 risk of this type of surgery in our hands and 16 certainly at the Cleveland Clinic for this 17 patient should be no more than 20 to 25 percent." 18 Do you see that statement? 19 A. Yes, sir. 20 Q. What type of surgery are you referring to? 21 A. Her type one aortic dissection. 22 Q. Do you have any opinion, let me start that one 23 over again. 24 Where did Mrs. Broncaccio's dissection begin? 25 A. I have to refer specifically to the autopsy if 63 1 you want an exact description. 2 Q. Okay. Or just approximately, if you recall. 3 A. As I recall, it was just above the aortic valve, 4 but don't hold me to that. 5 Q. It was in the aortic root? 6 A. Yes. 7 Q. And it went distal from that? 8 MR. HIRSHMAN: Do you want him -- 9 is this a memory contest or -- 10 MS. REINKER: Oh, he can look, 11 sure. 12 MR. HIRSHMAN: He's got it in 13 front of him now. 14 A. The initial tear was located just above the 15 aortic valve. 16 Q. And it proceeded from there, correct? 17 A. Yes. 18 Q. Did you see the autopsy finding of mild to 19 moderate atherosclerosis without the, throughout 20 the length of the aorta? 21 A. Yes. 22 Q. Would you agree that the atherosclerosis could 23 have been a cause of the dissection, the tear and 24 the dissection in the first place? 25 A. That hasn't been my experience. 64 1 Q. Do you have an opinion in this case what caused 2 the initial tear that began the dissection? 3 A. It could have been an episode of hypertension or 4 it could have been related, could have been 5 related to the fact that the lady's intima was 6 more susceptible to dissection because of her 7 chronic hypertension. I don't know that the 8 atherosclerosis is a significant etiologic 9 factor. 10 Q. Could it have been in this case? 11 A. I don't think so. 12 Q. Does the presence of the atherosclerosis 13 throughout the aorta make the repair any more 14 difficult? 15 A. No. 16 Q. I'm sorry. What was the answer? 17 A. No. 18 Q. Do you have any idea how far the dissection -- 19 well, was the dissection present when 20 Mrs. Broncaccio arrived in the emergency room at 21 11:30? 22 A. Obviously we have no way of knowing that for 23 sure; but from a clinical perspective, I would 24 have to say yes. 25 Q. Your opinion is yes but you don't know for sure? 65 1 A. Correct. 2 Q. I gather you would have no opinion how far the 3 dissection extended when she first arrived? 4 A. That's immaterial. 5 Q. Well, do you have any opinion on that? 6 A. No. 7 Q. Do you have any opinion on the progress of the 8 dissection throughout that evening? Can you time 9 anything? 10 A. Usually when the patient complains of more pain 11 or a change in the pain, that can indicate that 12 there's been some propagation. 13 Q. Do you have any opinion in this case from what 14 you've read in the chart at which time the 15 dissection reached various stages? 16 A. I have, I've seen enough dissections, I would bet 17 that this lady was having some chest discomfort 18 from the minute she hit the emergency room, one 19 out of ten, two out of ten, not enough to 20 complain about and make a nuisance out of 21 herself, which most people don't want to do, but 22 I bet she was having some chest discomfort right 23 from the time she hit the emergency room. 24 When she started to complain of a change in 25 the character of the pain around 3:00, that could 66 1 mean that the dissection was extending. 2 Q. What types of surgery are performed for this kind 3 of a problem? 4 A. The main strategy in the treatment, for the 5 surgical treatment of aortic dissection is to 6 eliminate the portion of the aorta where the 7 initial tear occurred. You don't have to remove 8 the entire dissected portion of the aorta, you 9 just have to interrupt the dissection by 10 repairing the segment of the aorta where the 11 initial tear occurred. That usually involves the 12 placement of a short tube graft, sometimes you 13 have to replace the, or resuture the aortic valve 14 and reimplant the coronary arteries but the 15 strategy is not as some people would think where 16 the whole aorta has to be fixed, because it 17 doesn't. You just interrupt the dissection where 18 it started and close the layers of the aorta with 19 a graft distally. 20 Q. In this case, from what you know from the 21 autopsy, what kind of surgery would you have 22 performed? 23 A. Short interposition graft of the ascending aorta. 24 Q. How long of an interposition? 25 A. It would depend on how the aorta looked. 67 1 Sometimes the aorta can be a little thinner in 2 some spots than others but it probably would have 3 been between four and seven centimeters. 4 Q. And that's just around the root of the aorta? 5 A. Right. 6 Q. And nothing more than that you think would have 7 been indicated in this case? 8 A. Right. She had an occluded carotid artery and 9 that's probably what caused her to pass out 10 initially but she had enough collateral 11 circulation to overcome that without having a 12 stroke and there's a good chance that that 13 carotid artery would have reopened once the 14 dissection was obliterated by the tube graft. 15 Q. So you don't think any surgery would have been 16 needed on the carotid? 17 A. No. 18 Q. You say in your report that the risk of this type 19 of surgery should be no more than 20 to 25 20 percent? 21 A. In our experience, that's correct. 22 Q. Is that for all commers, 20 to 25 percent? 23 A. No. 24 Q. Okay. Who is that? 25 A. That's for a stable type one dissection. That's 68 1 someone with stable vital signs who hasn't 2 started to compensate by leaking and who's in 3 reasonable otherwise good health, who hasn't had 4 a stroke or who hasn't had bad diabetes. 5 I'm talking about a type one dissection and 6 that's who presents in a stable condition, who's 7 in reasonably good health. 8 Q. What factors would put the patient into the group 9 of 20 to 25 percent of these patients who die? 10 A. What? What would put patients at higher risk for 11 surgery? 12 Q. Yes. 13 A. Primarily patients who have significant 14 co-morbidities. 15 Q. Such as? 16 A. Such as extreme old age, advanced respiratory 17 problems, diabetes. 18 Q. What about a prior MI? 19 A. Prior MI where the pumping action of the heart 20 has been affected. 21 Q. Do you think Mrs. Broncaccio's prior MI would put 22 her at any degree of risk? 23 A. Her EKG doesn't show, shows very little evidence 24 of an old infarct, so I'm betting that her 25 infarct was small. 69 1 Q. What does the autopsy say about her old infarct? 2 A. The autopsy says that she had a previously 3 occluded right coronary artery. 4 Q. What's the significance of that? 5 A. It can vary from no significance at all. If the 6 collateral circulation is adequate, the infarct 7 that results from that can be surprisingly small, 8 or it can be a large infarct. It depends on the 9 collateral circulation. 10 Q. So you have no understanding from the autopsy how 11 large Mrs. Broncaccio's old infarct had been? 12 A. I have, the only information I have is that 13 there's some scarring but no thinning. Usually 14 if the patient's had a large infarct, the muscle 15 mass would be reduced at that point to produce 16 thinning, so I don't think her heart attack was a 17 big one. 18 Q. What caused her cardiomegaly? 19 A. That's probably related to her hypertension. 20 Q. Wouldn't you agree this lady had fairly 21 significant pathology with regard to her heart? 22 A. Fairly significant pathology? I think she had 23 borderline cardiomegaly and a small, old 24 posterior infarct. 25 Q. And she had triple vessel coronary disease, too, 70 1 didn't she? 2 A. She had did triple vessel coronary disease, 3 that's true. 4 Q. And she would have been a candidate for bypass 5 surgery as far as her heart goes, wouldn't she? 6 A. An asymptomatic patient? That is debatable. She 7 certainly would have been a candidate for some 8 form of treatment if it had been discovered. 9 There are cardiologists who would treat her 10 initially with medication if she was 11 asymptomatic, depending upon what her stress test 12 showed. There's certainly a whole host of 13 cardiologists that might have considered 14 angioplasty if she developed symptoms. Certainly 15 not everybody that has blocked arteries gets an 16 invasive form of therapy. 17 Q. Well, isn't it sometimes said that it's the lucky 18 patients who have symptoms because then you can 19 diagnose their occlusions and treat them before a 20 problem develops? Would you agree with that? 21 A. Yes. I think screening is important for picking 22 up asymptomatic coronary disease. 23 Q. Would you agree that this lady had significant 24 occlusions of her coronary vessels? 25 MR. HIRSHMAN: Susan, let the man 71 1 finish his answer before you ask the next 2 question. 3 Q. I'm sorry. Go ahead and answer, doctor. I 4 didn't hear that. 5 A. I said I do think it's important to diagnose 6 people with coronary disease in an asymptomatic 7 state because that does allow you to treat them, 8 but it doesn't subject everyone to an operation. 9 Q. Would you agree that this lady had significant 10 occlusions of her coronary vessels? 11 A. Yes. 12 Q. That might have presented problems in the 13 postoperative period after her aortic dissection 14 surgery, might it not? 15 A. It's possible. 16 Q. How many surgeries have you performed or were you 17 involved in to repair this kind of a dissection, 18 a type one dissection extending all the way down 19 to the renal arteries involving the carotid 20 arteries? 21 A. As I said, the surgical strategy is to repair the 22 initial tear, so how far the dissection extends 23 is totally academic if no major artery has been 24 impinged on which causes symptoms to the patient. 25 Q. Do you have any recollection of how many patients 72 1 you have repaired with a small interposition 2 graft that presented the kind of picture at 3 surgery as would have Mrs. Broncaccio? 4 A. I'm going to say 40. 5 Q. Over all the years you've been doing this 6 procedure? 7 A. Right. 8 Q. Have you ever had to go back and do more than 9 just a short interposition graft? 10 I'm sorry, if there was an answer, we didn't 11 hear it. 12 A. I'm thinking. 13 Q. I'm sorry. Go ahead. 14 A. The only patient that I can recall went on to 15 develop, he threw a blood clot to one of his legs 16 and we did have to operate on him a couple days 17 later and remove that blood clot but I can't ever 18 recall having to go back into the chest for 19 anything. 20 Q. When a patient has an aortic dissection, what is, 21 untreated, what is the usual cause of death? 22 A. A rupture. 23 Q. Now, that was not the cause of death in this 24 case, was it? 25 A. Yes, it was. 73 1 Q. I'm sorry, I thought the cause of death in this 2 case was cardiac tamponade? 3 A. Yes. Dissection ruptured into the patient's 4 pericardium, the usual form of rupture. 5 Sometimes they'll rupture into the chest or 6 abdomen but they usually rupture retrograde into 7 the pericardium. 8 Q. That's what I was getting at, so most of the 9 deaths in this type of a case are due to 10 tamponade? 11 A. Yes. 12 Q. Doctor, is this the first time you have testified 13 in a medical malpractice case? 14 A. No. 15 Q. How many times, and I'm talking about not your 16 own but a case where you've been retained to 17 serve as an expert. 18 A. What do you mean by testify? 19 Q. Well, let me go back a moment. Let me start this 20 over again. 21 Have you ever been involved in a medical 22 malpractice case before where you have been 23 retained to serve as an expert? 24 A. Yes. 25 Q. Or where you've been retained to review the case? 74 1 A. Yes. 2 Q. How many times? 3 A. I'm going to say over the years, probably 20. 4 Q. Have you ever reviewed cases for any kind of a 5 service, by that I mean an agency which might 6 call you and ask you to review cases for a 7 lawyer? 8 A. Yes, I did. 9 Q. What service? 10 A. Somebody in Florida. I don't recall. 11 Q. How long ago? 12 A. About two years. 13 Q. I'm sorry, I didn't hear that. 14 A. About two years ago. 15 Q. How many years did you work with that group in 16 Florida? 17 A. I just reviewed one case for them. 18 Q. Was that a case on behalf of a plaintiff or a 19 defendant? 20 A. Plaintiff. 21 Q. So you think you've reviewed cases since 1983 22 roughly 20 times? 23 A. Yes. 24 Q. And of those, what percent defense and what 25 percent plaintiff? 75 1 A. It's going to be 95 percent defense. 2 Q. Were they cases, any other cases in Ohio? 3 A. No. 4 Q. Have you ever been involved in any other cases 5 involving an aortic dissection? 6 A. Yes. 7 Q. How many? 8 A. Probably half of the cases that I've reviewed. 9 Q. Ten of them? 10 A. That would be my guess, eight to ten. 11 Q. Do you currently have any other cases open, legal 12 cases? 13 A. I do, but they stretch on for years. I couldn't 14 tell you exactly how many. I don't have any that 15 I'm actively working on right now besides this 16 one. 17 Q. Have you ever given a deposition in a case 18 involving an aortic dissection? 19 A. I don't specifically recall. I wouldn't be 20 surprised, but I just don't remember. 21 Q. Do you keep the depositions? 22 A. No. 23 Q. Do you keep any list of the cases you've been 24 involved in? 25 A. I do not. 76 1 Q. Can you recall any lawyers that you have worked 2 with? 3 A. Locally? 4 Q. Anywhere. 5 A. No, I don't. 6 Q. Do you have any, can you remember anything about 7 the other cases involving an aortic dissection? 8 Are you thinking? 9 A. Yes, I'm thinking. I do remember one case there 10 was a question of the technique of how the 11 dissection was repaired. 12 Q. Do you recall being involved in any other case 13 where the issue was a failure, an alleged failure 14 to diagnose a dissection? 15 A. I'm sure that some of those other ones were; but 16 they never, I never testified at trial or 17 anything like that. They didn't materialize. 18 Q. Have you ever written a report in support of a 19 physician who did not make a diagnosis when the 20 plaintiff was claiming he or she should have? 21 A. Never wrote a report. Like I say, I've reviewed 22 some cases along these lines but they've never 23 gone anywhere. I never remember the details. 24 Q. Doctor, I think I have covered or I've tried to 25 cover all of the opinions that you rendered in 77 1 your report. 2 Are there any other opinions you're going to 3 be giving at trial that I have not asked you 4 about? 5 A. No. 6 Q. Any other issues or anything else you're going to 7 be talking about at trial that we have not 8 already discussed? 9 A. Other than what I've outlined? 10 Q. Other than, well, if there's anything I've missed 11 in your report. 12 A. Oh, no, nothing that's outside the report that 13 I -- no, I'm not hiding anything. I wrote 14 everything, all the pertinent, my pertinent 15 opinions are in the report. 16 Q. Well, is there anything in your report that I've 17 not already asked you about that you think you're 18 going to be testifying about? 19 MR. HIRSHMAN: Well, the report's 20 fair game, Susan. If there's something in 21 there that you intentionally overlooked -- 22 Q. Well, take your time and read the report, then, 23 doctor. If there is anything I have missed that 24 you're going to be rendering opinions about at 25 trial with regard to a failure to meet the 78 1 standard of care, I'd like to know about that 2 now. 3 A. No, nothing outside the report. I wrote, the 4 report is a pretty accurate assessment of my 5 position on the case. 6 Q. Well, I want to make sure, I've tried to ask you 7 repeatedly the ways in which you feel the care 8 fell below standards in this case or anything 9 you're critical about in the management of 10 Mrs. Broncaccio's care. 11 Have I covered everything? 12 A. At this point in time, yes. There's some 13 material that I have not reviewed, as I have 14 said, but at this point in time, with the 15 material that I have, these are the important 16 issues. 17 Q. And can you list for me, then, in your own words 18 the ways in which you're going to be testifying 19 at trial that the care of any of the defendants 20 in this case or anybody during Mrs. Broncaccio's 21 admission from December 7th and December 8th, 22 what ways did they fail to meet the standard of 23 care? 24 A. Well, I'm concerned that there's no organized, 25 written plan on the chart as to the differential 79 1 diagnosis and how the staff intended to proceed 2 to diagnose and treat the patient in an orderly 3 fashion. 4 I'm concerned that the patient's ongoing 5 chest pain wasn't addressed more aggressively. 6 I'm concerned that, obviously she was in a 7 semi intensive care situation or in the hospital, 8 she was on a cardiac monitor but there's no 9 intensive care unit type flow sheet, there's some 10 sketchy progress notes by the nurse every hour or 11 two, never seen by the physician once she's, 12 never followed directly by the physician once 13 she's been put in this unit. 14 There's no communication between the 15 physician that comes on the next day and the 16 physician that's leaving about who's in the unit, 17 how they're doing -- what the plan is. The 18 physician that comes on duty doesn't make an 19 effort to make rounds with the nurses or see the 20 patients that are in this not intensive care unit 21 but certainly a transition unit or a disposition 22 unit where decisions have to be made. 23 And I think in light of the patient's 24 presentation, any complaint of back pain in a 25 patient with chest pain has to be taken as aortic 80 1 dissection until proven otherwise. It can't be 2 taken as a thin mattress on the gurney, old 3 arthritis, probably nothing to worry about. It 4 has to be paid serious attention to. 5 So those are my, the main issues. The fact 6 that the lady wasn't, remained in a hospital 7 which couldn't treat a cardiac diagnosis when 8 that was the working diagnosis for several hours 9 right up until three in the morning. That 10 bothers me, too. 11 Q. Any other way you're going to be testifying the 12 care fell below standards? 13 A. No. Those are my main concerns at the time 14 without reviewing additional information. 15 Q. And, again, do you have any idea how the 16 transition of care is managed at Providence 17 Hospital between the CDU and the ER physicians? 18 A. At Beaumont Hospital, the transition is between 19 the physicians and the nurses, not from physician 20 to physician. 21 The physician that's coming on goes to this 22 chest pain unit and checks the patients with the 23 nurses and makes rounds, if you will. May not 24 see every patient, but he receives a report on 25 each patient before he begins his shift. 81 1 Q. And you think that would be an appropriate way to 2 handle things? 3 A. That would satisfy me. Some formal communication 4 between the staff as to who's in the unit, what 5 the plan is, what the concerns are. 6 Q. And if that occurred in this case, you would not 7 be critical of that? 8 A. That particular issue, no. 9 Q. I would like to take a break here and go off the 10 record for a moment and I may ask the court 11 reporter, because you just listed a whole bunch 12 of things that I didn't get down very quickly, so 13 let's take a break for a few moments and I may 14 have a few more questions for you and we may be 15 done, okay? 16 A. That's fine. 17 - - - - 18 (Thereupon, a recess was had.) 19 - - - - 20 Q. Doctor, I just have one or two more questions for 21 you. 22 A. Yes. 23 Q. Have you ever had a situation where you reviewed 24 a patient's chart and found things to be missing 25 from your dictations? 82 1 A. From me personally? 2 Q. Yes. 3 A. Yes. 4 Q. And in that situation, what do you do? 5 A. You redictate, you replace the missing 6 information. 7 Q. Have you ever been in a situation where you 8 handwrote and dated, rather, your addition to the 9 chart? 10 A. That would be unusual. 11 Q. Have you ever seen that happen? 12 A. Well, I mean you make additions to the chart. 13 I've certainly made additions to the chart before 14 the patient goes home if there's pertinent 15 information, I go back after a day or two and 16 write something; but you're talking now after the 17 discharge and the dictating note? 18 Q. Yes. 19 A. No. 20 Q. If the physician makes an addition to the chart, 21 it would be appropriate to date it the date the 22 dictation is made, wouldn't it? 23 A. Yes, you would make that notation somewhere on 24 the dictation. You may dictate it, you dictate 25 it the original date but indicate it was being 83 1 redictated. 2 Q. Or it was an a addendum or something like that? 3 A. Yeah. You put both dates on it. I would. 4 Q. Have you ever testified at a trial? 5 A. Yes, I did. 6 Q. How many times? 7 A. Twice. 8 Q. What were those situations? 9 A. One was when I was a surgical resident in Ann 10 Arbor, there were some nurses at the VA that were 11 killing patients. 12 Q. Well, that's interesting. 13 A. I was one of the doctors on duty at that time and 14 it was prosecuted by the federal government and I 15 was in court for about a week on that. 16 Q. This was not the infamous Dr. Swango. Was he in 17 Michigan ever? 18 A. No. This is called the mysterious deaths in Ann 19 Arbor. The VA Hospital, two Philippino nurses. 20 Q. The nurses were doing this? 21 A. Yes. In the late '70s. 22 Q. What was the other one you testified in? 23 A. The other one was -- it was a defense case. I 24 was trying to think what the name of it was. It 25 was a traumatic rupture of the aorta. I'm almost 84 1 positive I had to testify in that case. 2 Q. And what was -- 3 A. The patient was in a roll-over auto accident when 4 he was drunk and lacerated his aorta, his 5 descending aorta and made it to the hospital 6 alive and was operated on and paraplegia 7 resulted. 8 Q. And what were you testifying about in that 9 situation? 10 A. Defending the conduct of the operation. 11 Q. You reviewed all of the records from the 12 admission at Kaiser, the emergency and the CDU 13 admission? 14 A. Yes. 15 Q. Do you recall seeing Dr. Haluska's handwritten 16 physical and history? 17 A. I do. 18 Q. I'm just -- 19 A. No, just the -- 20 Q. Just the physical? 21 A. Yes. 22 Q. Did you find anything significant in that 23 document? Did that affect your opinions in any 24 way? 25 A. No. Let me review it for a second but I don't 85 1 recall anything. 2 Q. Are you there? 3 A. Yes. I'm looking at it a second. 4 MR. HIRSHMAN: He's reading it 5 right now, Susan. 6 Q. Okay. 7 A. It's double dated and it's pretty 8 straightforward. 9 Q. And that document did not affect your opinions in 10 any way? 11 A. No. 12 Q. Did you see the note written, the dictation by 13 Dr. Gajdowski? He's the ER physician who came 14 over at the time of the arrest. Have you seen 15 that note? 16 A. I do remember seeing that. 17 Q. I gather you're looking for that note now? 18 A. Yes. And this is, this didn't affect me, either. 19 I've done this before. 20 At the time, you know, when the patient's 21 arrested, you know, you don't have much time to 22 collect your thoughts and you scribble a note on 23 the chart and then you go back and dictate a note 24 later. This is not unusual. 25 Q. And Dr. Gajdowski I believe at that point thought 86 1 the cause of the death had probably been cardiac. 2 Do you remember that? 3 A. Yes. 4 Q. And, again, that was his impression at the time? 5 A. Yes. 6 Q. And did Dr. Gajdowski's dictated note affect your 7 opinions in any way? 8 A. No. 9 Q. And then I believe there's a handwritten note by 10 another physician who arrived at the time of the 11 arrest and that was a Dr. Ryder? 12 A. S. somebody, yes. 13 Q. It's R-Y-D-E-R? 14 A. Probably. 15 Q. Did you review his note? 16 A. Yes. 17 Q. And did anything in Dr. Ryder's note affect your 18 opinions in any way? 19 A. No, not specifically. 20 Q. And, again, I think Dr. Ryder thought that an 21 aneurysm should be ruled out? 22 A. Yes. 23 Q. And that was his impression at the time? 24 A. Yes. 25 Q. And, again, that was a physician who came in and 87 1 scribbled something down, I think as you put it, 2 around the time of the arrest? 3 A. He was probably the first one on the scene. 4 Q. Okay, doctor, if you develop any new opinions or 5 think of new, of any new opinions before you come 6 to Cleveland to testify in the trial, would you 7 let Mr. Hirshman know that or Mr. Ruf? 8 A. Yes. 9 Q. And then I have the right to redepose you before 10 you testify if you intend to render any new 11 opinions in trial. Okay? 12 A. Fine. 13 Q. Is it your understanding that you're going to be 14 coming to Cleveland to testify in person or are 15 you going to arrange a videotape? 16 A. It hasn't been discussed. 17 Q. By the way, I didn't ask if you've ever given any 18 videotape testimony which was shown to a jury. 19 A. No. 20 Q. Do you think it is of any significance in this 21 case the precise location of Mrs. Broncaccio's 22 back pain during the nighttime hours of December 23 8th, the early morning hours? 24 A. Any significance? 25 Q. Do you think it matters where in her back that 88 1 pain was located? 2 A. I personally don't. 3 Q. So it would make no difference to you if it was 4 lower or upper back pain? 5 A. Her back pain was lower. 6 Q. Would it have made any difference to you if the 7 back pain was upper? 8 A. That's more typical, but it wouldn't have made 9 any difference to me. 10 MS. REINKER: Okay. I think 11 that's all I have, then, sir. Thank you. 12 We are going to request this, 13 Toby, if you want to talk to him about 14 waiver. 15 MR. HIRSHMAN: I think he should 16 read it. It was kind of hard to hear at 17 times. 18 - - - - 19 (Thereupon, a discussion was had off 20 the record.) 21 - - - - 22 (Signature waived.) 23 24 25 89 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 PAUL E. CLANCY, 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 90 1 W I T N E S S I N D E X 2 PAGE CROSS-EXAMINATION 3 PAUL E. CLANCY, M.D. BY MS. REINKER....................... 3 4 5 E X H I B I T I N D E X 6 EXHIBIT MARKED 7 Clancy Exhibit A, three-page CV.... 5 Clancy Exhibit B, three-page 8 Clancy letter to Ruf............... 6 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25