0001 1 IN THE COURT OF COMMON PLEAS CUYAHOGA COUNTY, OHIO 2 CASE NO.: CV-07-622712 3 C. JEAN THOMPSON, ETC., 4 Plaintiff, 5 vs. 6 MARK MELAMUD, M.D., ET AL., 7 Defendants. _______________________________________/ 8 9 10 11 VIDEOTAPED DEPOSITION OF TODD DAVID EISNER, M.D. 12 13 Friday, November 7, 2008 14 3:50 p.m. - 6:08 p.m. 15 Esquire Deposition Services 16 2385 N.W. Executive Center Drive Suite 120 17 Boca Raton, Florida 33431 18 19 20 21 Reported By: 22 Mary M. Karns, Shorthand Reporter 23 Notary Public, State of Florida 24 Esquire Deposition Services 25 Boca Office Job #957941 0002 1 APPEARANCES: 2 On behalf of the Plaintiff: 3 HOWARD D. MISHKIND, ESQUIRE, 4 BECKER & MISHKIND CO., L.P.A. Skylight Office Tower 5 1660 West 2nd Street, Suite #660 Cleveland, OH 44113 6 Phone: 216.241.2600 7 8 On behalf of the Defendants: 9 STEVEN J. HUPP, ESQUIRE, 10 BONEZZI, SWITZER, MURPHY, POLITO & HUPP CO., L.P.A. 1300 East 9th Street 11 Suite 1950 Cleveland, OH 44114 12 Phone: 216.875.2060 13 14 15 16 17 18 19 20 21 22 23 24 25 0003 1 - - - I N D E X 2 - - - 3 WITNESS: DIRECT CROSS REDIRECT RECROSS 4 TODD DAVID EISNER, M.D. 5 BY MR. MISHKIND 5 98 106 6 BY MR. HUPP 71 104 7 8 9 10 11 12 13 - - - N O E X H I B I T S M A R K E D 14 - - - 15 16 17 18 19 20 21 22 23 24 25 0004 1 P R O C E E D I N G S 2 - - - 3 Videotaped deposition taken before MARY M. KARNS, 4 Shorthand Reporter and Notary Public in and for the 5 State of Florida at Large, in the above cause. 6 - - - 7 VIDEOGRAPHER: We are now on the video 8 record. Today is Friday, the 7th day of November 9 2008. The time is 3:50. We are here at 2385 10 Northwest Executive Center Drive in Boca Raton, 11 Florida, for the purpose of taking the videotaped 12 deposition of Dr. Todd Eisner in the case of 13 Thompson versus Mark Melamud, M.D., et al. 14 The court reporter is Mary Karns. The 15 videographer is George B. Ellis, both of Esquire 16 Deposition Services. Will counsel please announce 17 their appearances for the record? 18 MR. MISHKIND: Good afternoon. My name is 19 Howard Mishkind and I represent Jean Thompson, the 20 surviving spouse and representative of the estate of 21 Robert Thompson. 22 MR. HUPP: This is Steven Hupp on behalf of 23 Dr. Melamud. 24 Thereupon, 25 (TODD DAVID EISNER, M.D.) 0005 1 having been first duly sworn or affirmed, was examined 2 and testified as follows: 3 THE WITNESS: Yes, I do. 4 DIRECT EXAMINATION 5 BY MR. MISHKIND: 6 Q. Good afternoon, Doctor. 7 A. Hi. 8 Q. Would you please introduce yourself to the 9 ladies and gentlemen of the jury? Would you first put 10 your microphone on? 11 A. It was on. It fell off. 12 Q. Okay. 13 A. Excuse me. Todd David Eisner. 14 Q. And you are a physician; is that correct? 15 A. Yes. I am a gastroenterologist. 16 Q. Would you tell the ladies and gentlemen of the 17 jury what exactly is a gastroenterologist? 18 A. A gastroenterologist involves the study of the 19 intestinal tract from the esophagus down to the stomach, 20 the intestines, both the small intestine and the large 21 intestine, otherwise called the colon, also other organs 22 in the abdominal cavity, the liver, gallbladder, 23 pancreas. 24 Q. Doctor, your offices are located here in 25 Florida; is that correct? 0006 1 A. That's correct. 2 Q. Would you tell the jury where exactly in 3 Florida your offices are located? 4 A. One office in Boca Raton, Florida, and one 5 office about ten minutes away in Delray Beach, Florida. 6 Q. Do you have partners that you practice with? 7 A. Yes. I have five other partners. 8 Q. Doctor, are you aware of the fact that this 9 case involving Robert Thompson is set for trial 10 beginning December 1, 2008, in Cleveland, Ohio? 11 A. Yes, I am. 12 Q. And, if you would, explain to the jury why it 13 is that we are here today rather than you coming up to 14 Cleveland to testify. 15 A. The first week in December I had a major 16 scheduling conflict with the other partners in my 17 office. I appreciate that - that yourself and Mr. Hupp 18 were able to come down to take my testimony here. 19 Q. Doctor, what I'd like to do is start with 20 some discussion about your clinical practice in terms of 21 what type of procedures you perform and conditions you 22 treat as a gastroenterologist. First, what hospitals do 23 you practice at? Tell us that. 24 A. I practice at Boca Raton Community Hospital 25 and Delray Medical Center. 0007 1 Q. Doctor, we are obviously here to talk about 2 Bob Thompson, Robert Thompson, and opinions that you 3 hold as it relates to Dr. Melamud's care. You 4 understand that? 5 A. That's correct. 6 Q. Would you tell the jury, from what you have 7 reviewed, whether your practice, in terms of the area of 8 specialization, is similar to the area of practice that 9 Dr. Melamud, the Defendant in this case, practices? 10 A. Yes. From what I can tell, we have similar 11 types of practices. 12 Q. Now, let's review some of the highlights of 13 your qualifications for the jury. First, where did you 14 go to college? Would you tell the jury? 15 A. I went to college at Brandeis University. 16 Q. Where is that? 17 A. It's in Massachusetts. 18 Q. What year did you graduate from Brandeis? 19 A. Graduated in 1985. 20 Q. What was your degree in from Brandeis? 21 A. In biopsychology. 22 Q. After graduating with a degree in 23 biopsychology from Brandeis, did you then proceed on to 24 medical school? 25 A. I went to medical school at State University 0008 1 of New York at Stony Brook on Long Island. 2 Q. Are you a native New Yorker? 3 A. Yes, I am. 4 Q. What year did you graduate from State 5 University of New York at Stony Brook? 6 A. I graduated there in 1989. 7 Q. After graduating from, is it, I think the 8 abbreviation is SUNY or -- 9 A. SUNY. 10 Q. SUNY. 11 A. SUNY Stony Brook. 12 Q. After graduating from SUNY Brook, did you then 13 do an internship? 14 A. Yes. Then I went on to do my internship and 15 residency at, also on Long Island, at Northshore 16 University Hospital, Cornell Medical Center, so it was a 17 one year internship in internal medicine and then a two 18 year residency in internal medicine. 19 Q. Doctor, by the way, you're dressed in - in 20 medical garb. Where were you before you came here 21 today? 22 A. I was at - in the office and at the hospital 23 doing procedures. 24 Q. The internship and the residency that you just 25 mentioned a moment ago, would you tell the jury a little 0009 1 bit about what was involved in, and this may be the 2 first time that they hear about an internship, it may 3 not be, but would you explain after graduating what's 4 involved in an internship and then what's involved in a 5 residency? 6 A. Sure. After you graduate from medical school 7 you have to do an internship, which involves basically 8 more training with more senior students still, so these 9 would be residents and so you have residents teaching 10 the interns. You take care of patients at the hospital 11 under the supervision of the more senior residents, as 12 well as attending physician, so people have already been 13 in practice for years. 14 This was in general internal medicine, so we 15 would take care of all the medical patients on the 16 medical floors in the hospital for whatever medical 17 conditions they would have, whether it be the heart, the 18 intestinal tract, the lungs, infection problems. And 19 that was basically, as I said, one year as you're the 20 intern where you do most of the early morning work, the 21 blood drawing on the patients, the rectal examinations. 22 Then as you move up the - the progression you do more 23 teaching and do more of the difficult procedures in - 24 only in internal medicine. 25 Q. The residency program that you participated 0010 1 in, how many years was that? 2 A. The residency program was - basically the 3 entire program's called the residency program. The 4 first year is the internship and then the second and 5 third year is the residency part of the residency 6 program. 7 And I did an additional year as chief resident 8 supervising the interns and - and residents and that was 9 done basically at two institutions part of Cornell 10 University Medical Center. That was done at Northshore 11 University nine months of the year and Sloan-Kettering 12 Cancer Center for three months of the year. 13 Q. It's my understanding that after finishing the 14 residency and then your being chief resident you then 15 did a fellowship; is that correct? 16 A. Right. So fellowship is basically more 17 training in a specialty area, so that's when I got my 18 training in gastroenterology, you know, the intestinal 19 tract training and doing the procedures, such as we'll 20 talk about today, colonoscopies, so that was an 21 additional two years after the internship and residency. 22 Q. And was that also at Cornell? 23 A. Yes, it was. 24 Q. So you finished your internship, your 25 residency, then your extra training two years as a 0011 1 fellowship and that would have then been completed about 2 what year? 3 A. That was completed in 1995. 4 Q. Doctor, are you any - are you a member of any 5 professional medical societies or organizations and, if 6 so, would you tell the jury the major ones that you are 7 a member of? 8 A. Yes. The major national ones, The American 9 College of Gastroenterology, American Society of 10 Gastrointestinal Endoscopy and the American 11 Gastroenterological Association and locally a chapter of 12 the Crohn's Colitis Foundation and we have some County 13 memberships as well. 14 Q. It's my understanding that you recently became 15 a clinical instructor here in Florida, as well as 16 participating in what you do at hospitals and in your 17 office; is that - is that correct? 18 A. Yes. That's something that just started a 19 couple of months ago. I'm a - a volunteer instructor, 20 professor, assistant professor of medicine at University 21 of Miami School of Medicine. That's part of the Florida 22 Atlantic University division in Boca Raton. 23 Q. Tell the jury what states you are licensed to 24 practice in. 25 A. Florida and New York. 0012 1 Q. Tell the jury what percentage of your 2 professional practice or professional time is devoted to 3 the active clinical practice of medicine in the field of 4 gastroenterology. 5 A. It's over - well over 90 percent. 6 Q. Are you Board certified in the area of 7 gastroenterology? 8 A. Yes, I am. 9 Q. First tell the jury what Board certification 10 is. 11 A. Board certification is a national 12 certification that is achieved after you - in 13 gastroenterology you have to fulfill the fellowship in 14 gastroenterology and then pass a national standardized 15 examination in gastroenterology. 16 Q. When did you become Board certified? 17 A. In 1995, and then it has to be recertified 18 every ten years, so it was recertified in 2005. 19 Q. So 1995, and then recertification in 2005 in 20 the area of gastroenterology; correct? 21 A. Correct. 22 Q. It's my understanding you were - you're - you 23 were also Board certified in internal medicine; is that 24 correct? 25 A. I - I was Board certified in internal medicine 0013 1 in 1993, and then since my practice is essentially 100 2 percent gastroenterology, did not attempt to recertify 3 internal medicine in 2003. 4 Q. I want to talk a little bit about your 5 medical-legal work for a moment before we talk about 6 some of the medicine and then get into talking about the 7 opinions that you hold in this case. 8 A. Okay. 9 Q. Are you, from time to time, asked to review 10 medical-legal cases such as this and render, such as 11 you're doing in this case, and render opinions in - in 12 your field of expertise? 13 A. Yes. 14 Q. And, Doctor, would you tell the jury whether 15 you review cases for both doctors and for patients? 16 A. Yes, I do. 17 Q. Do you have a preference in terms of which 18 side you review a case for? 19 A. No. 20 Q. Tell us, on average, how many cases you're 21 asked to review and provide your expert opinion on 22 during a - a given year. 23 A. An average, about two to three cases a month, 24 so 30, 30 or so cases a year. 25 Q. And those cases they come from both 0014 1 plaintiff's attorneys, such as myself, and defense 2 attorneys, such as Mr. Hupp? 3 A. That's correct. 4 Q. Can you estimate, in terms of the percentage 5 of time that you're called on, how often you're 6 reviewing a case for a physician in comparison with 7 reviewing a case on behalf of a patient or the family of 8 a patient such as in this case? 9 A. It's about 65 percent on behalf of the 10 patient, patient's family, and 35 percent on behalf of 11 the defendant physicians. 12 Q. Do you take every case that a lawyer sends to 13 you? 14 A. No. 15 Q. Tell the jury, if you would, whether you have 16 reviewed cases for me or any other attorneys in my 17 office before you were asked to review the Robert 18 Thompson case. 19 A. Yes, I have. 20 Q. Can you give the jury a little bit of an idea 21 of how many cases you have reviewed in total and how far 22 back, perhaps, in time that goes? 23 A. I'd - I'd guesstimate that over the past ten 24 years, since I - I reviewed a case for you, probably 25 about ten cases. 0015 1 Q. And of those cases that you've reviewed, have 2 you always found merit to those cases? 3 A. No. 4 Q. Would you explain what the process is that 5 you've gone through? 6 A. I would - you would send me records to review. 7 I'd review the records and tell you if I felt that this 8 was something that should be pursued further, if there 9 was a deviation from the standard of care of the 10 physicians or the hospital. And I think probably a 11 majority of the cases I've reviewed for you I - I found 12 that it was not a deviation from the standard of care. 13 Q. Have you ever testified at trial, and this is 14 essentially considered trial even though the jury will 15 be viewing your video, they won't be meeting you in 16 person, but have you ever testified either live in court 17 on behalf of any of my clients or had your video 18 deposition taken that was to be played at trial in the 19 past? 20 A. No. 21 Q. Have you ever given a deposition before in 22 any of the cases that - for patients that my office 23 represented, either for me or for anyone else in my 24 office? 25 A. Yes, I have. 0016 1 Q. And do you know on how many occasions that 2 would be? 3 A. There was once, besides this case, once for 4 you and once for somebody else in your office. 5 Q. Have you also reviewed cases and served as an 6 expert for attorneys representing doctors in medical 7 negligence cases in Ohio and in other states? 8 A. Yes, I have. 9 Q. Doctor, are you charging for your time to be 10 here today? 11 A. Yes. 12 Q. And tell the jury whether, first, whether you, 13 having done this for a number of years, whether you 14 understand that to be a common practice, when experts 15 appear, to charge for time? 16 A. Yes, it is. 17 Q. What is the charge for your time for being 18 here today for this video trial deposition? 19 A. It's $850 an hour. 20 Q. Doctor, I am sure that some of the jurors 21 that will be hearing your testimony will be familiar 22 with what a colonoscopy is. Perhaps some of them may 23 have had colonoscopies or know people that have had 24 colonoscopies, but before we talk about what happened to 25 Robert Thompson, what I'd like to be able to do is to 0017 1 talk about some of the medicine that is important in 2 this case and to hopefully assist the jury in 3 understanding what happened to Mr. Thompson, what Mr. 4 Thompson underwent and the events that led up to his 5 death. So would you be willing to help in terms of 6 educating the jury a bit about some of the medicine in 7 this case? 8 A. Yes. 9 Q. First, if you would, tell the jury what a 10 colonoscopy is. 11 A. Okay. Take out the scope? 12 Q. Yeah. And I know that you have with you a - 13 I'd asked you to bring a scope with you; correct? 14 A. Correct. 15 Q. If you would, if you can grab that. I don't 16 know if you -- Okay. 17 A. Yeah. I'll bring it right up here. I can 18 stand? You'll get me in there? This basically is a 19 colonoscope. It's a fiberoptic tube that has controls 20 where you can move the scope to the right or left or up 21 or down and it basically is inserted into the rectum and 22 then moved up through the colon. 23 This isn't hooked up to air or water, but as 24 the scope is going into the colon, by using these 25 buttons we can clean the colon a little bit by squirting 0018 1 water. We inflate the colon with air so that the 2 collapsed colon can be visualized as we're moving along, 3 along the colon. 4 So you're moving in and you make a turn, you 5 can turn the scope and - and advance throughout the 6 entire colon all the while looking on a monitor as - as 7 the - there's - we usually have a light on the end of 8 here in the colon and the picture put on video monitor. 9 So as the scope's going in, we're looking on the monitor 10 and moving and doing what we need to do. 11 Through the scope we can take biopsies and we 12 can put devices in there to remove polyps. So if you 13 see an abnormality, you would take a device, put it 14 through the scope. So this is a biopsy forcep. And 15 then there'll be a nurse on the other end and, for 16 example, in this situation if you want to take a biopsy, 17 she would open the biopsy forceps and you'd get it in 18 position of what you wanted to biopsy and then she'd 19 close it and then you'd pull it out and the biopsy 20 specimen would come inside. 21 Similarly, there's other devices that can be 22 used to remove polyps, either by a biopsy or a snare, 23 putting a lasso around the polyps, and they all have the 24 same mechanism, that whatever device you're using will 25 open as a biopsy or as a snare on the nurse moving this 0019 1 or close on the nurse moving that way. 2 Q. Doctor, I have a couple photographs that I 3 would like to hand to you that, if you would, take a 4 look at them and explain perhaps to supplement what 5 you've just shown with the actual scope. If you could 6 hold them up and explain what is shown for the benefit 7 of the - make sure the videographer is able to see 8 those. Unfortunately, I don't have a larger copy with 9 me today. 10 A. Okay. I don't know how well you zoomed in on 11 this, but this is basically a picture of the physician 12 holding the scope, the patient lying on the back with 13 the buttocks facing the physician and there's the video 14 monitor and the scope is going into the rectum then 15 they're visualizing up there. I don't know if this blue 16 comes here, but the blue is actually the scope that has 17 been passed through the rectum and it goes up the colon, 18 up the descending colon across the transverse colon and 19 down the ascending colon. 20 This picture is the scope going up the colon 21 and there's an abnormality there. These are the biopsy 22 forceps coming out of the scope and taking a biopsy. 23 And then this is a picture of a polyp and this is that 24 snare, that lasso, that has gone around the - the polyp. 25 In situations where you're going to be removing a polyp, 0020 1 the - the snare or this biopsy forcep in this situation 2 is going to be hooked up to electricity to allow you to 3 make sure that you're removing the entire polyp. 4 If you just take a biopsy, it's not going to - 5 it's not going to remove everything. It's not going to 6 kill all the potential precancerous tissue, so you need 7 to apply coagulation or burn to the area so that any 8 tissue is removed off and any remaining tissue that 9 would be present would - would not become viable as the 10 electricity and the blood supply to the area is burnt. 11 So you're - you're applying energy and - and electricity 12 to the area to burn and remove the polyp and kill any 13 precancerous tissue that is there. 14 Q. Doctor, in this case, and we'll talk in 15 greater detail in a moment, but - and the jury may or 16 may not already know that there were three areas that 17 were removed by Dr. Melamud; is that correct? 18 A. That's correct. 19 Q. And were, any of those areas, were they 20 ultimately determined from the evidence in this case to 21 be cancerous? 22 A. No. 23 Q. If you could go back to the one with the - 24 where the actual scope is showing the, yeah, please, and 25 hold that up. Now, is that picture, in the upper 0021 1 right-hand corner there appear to be some growths. Are 2 those depictive or demonstrative of polyps? 3 A. These are, in this situation, supposed to be 4 examples of polyps that are in this area. This is a 5 blowup of - of the polyps that are being biopsied here. 6 Q. Now, would that picture that you have in your 7 hand, would that be fairly indicative of the type of 8 procedure that would have been used by Dr. Melamud when 9 he did the colonoscopy on Mr. Thompson? 10 A. Oh, yes. He used the - the biopsy forceps to 11 remove the polyps, as opposed to the other picture of 12 the lasso, you know, which was an appropriate way to 13 remove the polyps that he saw. 14 Q. So we have the hot biopsy forcep, which is 15 shown in this photograph; correct? 16 A. Correct. 17 Q. And then we also have a snare that was used to 18 remove one of the other growths? 19 A. Right. The one down in the anal area was 20 removed by snare. 21 Q. And we'll talk about that in greater detail, 22 but just so that the jury has somewhat of an overview. 23 The other thing I'd like you to do while we're talking 24 about some of the photographs is I'd like you to, if you 25 would, take a look at that diagram and hold that up for 0022 1 the jury and if you can, hopefully the videographer can 2 pick that up, if you can explain what we are looking at. 3 Obviously the skin and the muscle is cut away on this - 4 this view; is that correct? 5 A. That's correct. So this is a - a view of the 6 intra-abdominal contents, so you have the liver and the 7 spleen up top. You have the stomach and the pancreas 8 and then down low you have the - the large intestine, 9 the colon, which has the scope in there, and then you 10 have the small intestine. 11 And this whole cavity where all the organs are 12 contained is the peritoneal cavity and that's the sac 13 that contains all of the organs that we just talked 14 about. And basically this picture just shows the scope 15 in the colon and the colon next to the other organs all 16 within the peritoneal cavity of the abdomen. 17 Q. The colon, does it have various layers like 18 a - like a garden hose, if you will? 19 A. Yes. In other words, the - the inner lining 20 is the mucosa and then you have muscle layers and then 21 you have a submucosa, which is the - towards the 22 outside, and then you have a serosal lining, which is 23 the - the final outside. 24 So if you're looking at this part of the 25 colon, you're looking at the outer part of the colon. 0023 1 You're looking at the serosa. It's - it's hard to say 2 in this picture, but - so if this was the colon, this 3 would be the serosa and this would be the mucosa and the 4 scope would be in here. 5 Q. Let me hand you one more photograph that might 6 be helpful in terms of demonstrating the various layers. 7 And I think of this, it may be a primitive term to refer 8 to it as a garden hose, but this seems to be, perhaps, a 9 good way to demonstrate the various layers. Am I 10 correct? 11 A. Yes. So - so this is showing the colon and 12 over here they're peeling off different layers, so the - 13 the very inner part is the mucosal layer. That's right 14 here. Then you have muscle layers as you go further and 15 then the outer layer, the last layer, is the serosa. 16 Q. Very good. Thank you. We talked about 17 colonoscopy. You've shown us a scope. You've talked to 18 us about the hot biopsy forcep and the snare. I want to 19 define a couple other terms. When I hear someone talk 20 about undergoing a colonoscopy, I've also heard the term 21 endoscopy. What's the difference? 22 A. Well, basically endoscopy is the general term, 23 so endoscopy is just a scope inside the - the lumen 24 of - of the body. You can do endoscopy in any area. 25 You know, technically a - a bronchoscopy, looking at the 0024 1 lungs, is an endoscopy of the - of the bronchi. When 2 ear, nose and throat doctors look in the - in the 3 throat, they're doing types of endoscopies. When a 4 gastroenterologist does a gastroscopy, you know, looking 5 in the esophagus or stomach, that's an endoscopy and a 6 colonoscopy is a type of endoscopy as well. 7 Q. Polypectomy, what is that? 8 A. Polypectomy is the removal of the polyp. 9 Q. What's the difference between a diagnostic 10 colonoscopy and a therapeutic colonoscopy? 11 A. Okay. Most - most colonoscopies, when you're 12 beginning them, are - are going to be diagnostic. 13 You're putting the scope in and you're looking to see if 14 there are any abnormalities. If you find an abnormality 15 and you need to do something, so if you see a polyp that 16 you need to remove, if you see bleeding that you need to 17 cauterize to stop, then you're doing therapy. That 18 becomes a therapeutic colonoscopy. 19 Q. What type of colonoscopy did Mr. Thompson have 20 that was performed by Dr. Melamud on April 14, 2004? 21 A. Mr. Thompson had been complaining of some 22 rectal bleeding. Initially the colonoscopy started out 23 to be a diagnostic colonoscopy looking for the source of 24 the bleeding and any abnormalities. When three polyps 25 were removed, that would make it to be considered a 0025 1 therapeutic colonoscopy. 2 Q. Based upon your review of the records in this 3 case, Doctor, tell the jury whether Mr. Thompson 4 developed a complication as a result of the colonoscopy. 5 A. Yes, he did. 6 Q. Tell the jury whether you have ever heard of 7 the following statement when discussing colonoscopies. 8 Complications from colonoscopies can be serious and 9 life-threatening? 10 A. Yes, they can. 11 Q. Would you explain to the jury what that means? 12 A. Complications from colonoscopies can include 13 many - many things. You can have bleeding when you take 14 biopsies or remove polyps. You can have perforation of 15 the colon, a nick or hole in the colon when you're 16 either taking a regular biopsy or burning the colon and 17 those are some of the complications of colonoscopy. 18 Those complications of the colonoscopy can cause serious 19 medical conditions requiring hospitalization, requiring 20 surgery and even can lead to death. 21 Q. Tell the jury what is the most serious and 22 life-threatening potential complication of a 23 colonoscopy. 24 A. And that would be a perforation of the colon. 25 Q. And a perforation is actually a hole; is that 0026 1 correct? 2 A. Perforation is a hole or a tear in the wall of 3 the colon. 4 Q. In this case did Mr. Thompson experience a 5 colon perforation? 6 A. Yes, he -- 7 Q. Or a hole? 8 A. Yes, he did. 9 Q. What are some of the causes of colon 10 perforation when performing a colonoscopy or 11 colonoscopic polypectomy? 12 A. In performing a colonoscopy, when you perform 13 a diagnostic colonoscopy, you can have a perforation of 14 the colon by either the front of the scope going through 15 the wall of the colon or because of twisting of the 16 colon the - so if this is your colon wall, you can have 17 a perforation of the wall by the scope going through. 18 You can also, if you have a lot of twisting of the 19 colon, the scope can bulge and go through the wall 20 like - like that. The middle part of the scope can go 21 through, as opposed to the front part. 22 Now, those are the most common ways to have 23 perforation of diagnostic colonoscopies. When you're 24 removing a polyp or doing any kind of therapeutic 25 colonoscopy where you're using electricity and - and 0027 1 generating energy and heat and coagulation, you can have 2 perforation by burning the wall of the colon. 3 Q. Is it important, as a gastroenterologist, to 4 recognize early signs and symptoms of complications 5 following a colonoscopy? 6 A. Yes, it is. 7 Q. Tell the jury why. 8 A. As - as I said before, because perforation of 9 the colon can - can be life-threatening, leading to the 10 need for hospitalization, surgery and death. 11 Q. Have you ever heard of the following 12 statement? You are not remembered by your 13 complications, but how you handle them? 14 A. Yes. 15 Q. Would you explain to the jury what that means? 16 A. That was actually something that I was - I was 17 taught in my fellowship training program in 18 gastroenterology, that perforations or any kind of 19 complications are - are going to happen. If you do 20 enough procedures, you're going to have complications. 21 You know, just because a complication has occurred, it - 22 it doesn't mean that anything was done wrong. 23 So the way complications are dealt with is how 24 they're remembered. If - if a complication is diagnosed 25 and treated in an appropriate timely fashion, then 0028 1 nobody's going to remember what happened wrong. If the 2 complication is not recognized and treated, that's when 3 it becomes more of a big deal. 4 Q. If a complication is recognized and treated in 5 a timely and appropriate manner, is that a violation of 6 the standard of care or negligence? 7 A. You want to just repeat the question? 8 Q. If a complication is handled in a timely and 9 appropriate manner, is that considered to be negligence 10 or a violation of the standard of care? 11 A. No. 12 Q. Under what circumstances would a complication 13 be one that you would be remembered by? 14 A. Well, I mean -- 15 MR. HUPP: Objection. 16 THE WITNESS: I mean, there's many ways. 17 You're talking specifically about colonoscopies and 18 if something - if poor technique was used, that's 19 not the case in - in this case, but then that would 20 be a problem. But assuming that everything was done 21 correctly and a complication ensued, then failure to 22 recognize that complication would be a - a deviation 23 from the standard of care. 24 BY MR. MISHKIND: 25 Q. And we'll talk specifically about Mr. Thompson 0029 1 shortly, but the - the issue of -- Strike that. 2 You talked before about the peritoneum. That 3 is essentially the cavity that the colon and the small 4 intestine lies within? 5 A. Correct. 6 Q. What is peritonitis? 7 A. Peritonitis is an inflammation of the 8 peritoneal cavity that results, after colonoscopy with 9 perforation, you have intra-colonic contents, bacteria, 10 stool, air, leak into the abdominal cavity where it's - 11 it is not present typically, is therefore a foreign 12 substance, and you have an inflammatory response and - 13 which may lead to infection, sepsis and other things of 14 the peritoneal cavity and that's peritonitis. 15 Q. If a patient has a colon perforation, is there 16 a serious risk of peritonitis developing? 17 A. Yes. 18 Q. Why is that? 19 A. Again, you have foreign materials into - in a 20 sterile peritoneal cavity. 21 Q. Is peritonitis secondary to a bowel 22 perforation potentially lethal or life-threatening 23 condition? 24 MR. HUPP: Objection. 25 THE WITNESS: Yes, it is. 0030 1 BY MR. MISHKIND: 2 Q. What is abdominal distension? 3 A. Abdominal distension is basically a 4 nonspecific description of swelling of the abdomen. 5 Q. What is abdominal bloating? 6 A. Bloating can mean the same thing as 7 distension. It also could just be a feeling that - that 8 a patient has of - of being swollen. 9 Q. You correct me if I'm wrong, but I've heard it 10 referenced that abdominal bloating may be what's 11 referred to as a subjective statement by a patient. 12 Abdominal distension may be a clinical finding in terms 13 of what the doctor or someone may observe? 14 A. Correct. I mean, basically it depends how 15 they're - your question is - is posed to somebody. So a 16 patient may say that they feel bloated because they feel 17 swollen. Some patients may say that they feel 18 distended. On a physical examination when you're 19 examining somebody's abdomen, you wouldn't describe the 20 physical findings as being bloated. You'd describe that 21 as being distended, but the patient can - can 22 subjectively say that they're bloated or that they're 23 distended. 24 Q. Can you, as a gastroenterologist, I've heard 25 the - the term GI doctor. Is that the same? 0031 1 A. Yes. 2 Q. So if I use GI, as opposed to 3 gastroenterologist, every time we're talking about the 4 same creature? 5 A. Correct. 6 Q. Can you, as a GI doctor, determine over the 7 telephone whether a patient has abdominal distension? 8 A. Again, the patient may tell you that they're 9 bloated. They may say that their abdomen feels 10 distended, but it's, without examining them, it's hard 11 to say what actually may be going on. 12 MR. HUPP: Objection. Move to strike. 13 BY MR. MISHKIND: 14 Q. What is a bowel prep? Again, for those that 15 have already had colonoscopies, this may be just a 16 review of things that they're familiar with, but tell - 17 tell the jury. 18 A. When - when the colonosco - when the 19 colonoscope is inserted into the colon, this is a 20 clean - a clean colon. Most colons - no colon would 21 look like this unless you took a bowel prep. So the day 22 before the colonoscopy, the patient's going to be a on 23 liquid diet and consume laxatives to remove all the 24 stool from the colon and that's basically called the 25 bowel prep. 0032 1 Q. And what is the - what's the purpose, 2 ultimately, of the - of the bowel prep? 3 A. The purpose of the bowel prep is so that we 4 can visualize the walls of the colon for abnormalities. 5 Q. Does a bowel prep eliminate bacteria that 6 grows normally within the mucosa or the lining of the 7 colon? 8 A. No. 9 Q. Would you tell the jury what type of bacteria 10 is normally found growing in a closed, sealed-off colon? 11 A. The colon is not a sterile area. The colon is 12 full of what we call bacterial flora. There's large 13 amounts. If you took a stool sample and send it to the 14 lab, look under the microscope, there's going to be many 15 bacteria in that stool specimen. There's E. coli and 16 different types of anaerobic bacteria. As long as that 17 bacteria does not get into the bloodstream or into 18 sterile areas of the body, such as the peritoneal 19 cavity, then that - that's a normal finding. 20 Q. According to your review in this case, did Mr. 21 Thompson undergo a bowel prep? 22 A. Yes, he did. 23 Q. I'm going to hand you a part of the hospital 24 record from the colonoscopy, the outpatient colonoscopy 25 at South Pointe on April 14th, 2004. Let me just show 0033 1 it to counsel. 2 MR. HUPP: Um-hmm. 3 BY MR. MISHKIND: 4 Q. Would you explain to the jury what we are 5 looking at in terms of this document and after you've 6 explained that would you - would you tell the jury 7 whether the - the bowel prep that Mr. Thompson had, 8 whether it, according to the records, eliminated all the 9 stool from his colon? 10 A. This basically is a - a pre-op assessment by 11 the admitting team at the surgery center and I believe 12 specifically what you're asking me about is down here 13 bowel prep taken, yes. Patient states results brownish 14 water, which, again, when - when a prep is taken, you're 15 not going to have a, in most situations, a pristine, 16 clean colon. You're going to have some stool present. 17 Hopefully just liquid and hopefully as clear as 18 possible. You have the patient's on a clear, liquid 19 diet. 20 But frequently when we do the colonoscopy, you 21 know, patients, through this device, we can suction out 22 some liquid. If there's excessive liquid and we can't 23 see, as I said, we can, if we see some stool in the 24 area, we can inject water through the scope and move it 25 out of the way so we can get a look at an area that we 0034 1 might think we're not adequately seeing, but by no means 2 is it a - is the colon a sterile, uninhabited area after 3 a bowel prep. 4 Q. And does the bowel prep that's done, does it 5 eliminate the normal bacteria that you just talked 6 about that's contained within the - the wall of the 7 colon? 8 A. Again, it would eliminate some, but not all. 9 Q. Doctor, if a bowel prep is done and it cleans 10 out the bowel and there's a perforation following a 11 colonoscopy, why would there be any concern about the 12 potential of peritonitis? 13 A. Well, again, you're going to have air that's 14 going to leak into the peritoneal cavity and that can 15 cause shifting of - of body fluids and cause problems 16 and you're going to have leakage of - of the - whatever 17 is in the colon. 18 Again, as I said, there are going to be 19 contents in the colon. In this situation the stool 20 output was brownish and water. You're going to have 21 these secretions and whatever residual stool, as it 22 passes through the colon, can come out through the - the 23 perforated area. 24 Q. As time goes on after a colonoscopy has been 25 completed, does the normal bacteria that's contained in 0035 1 the colon, does that continue to - to grow, to continue 2 to exist within the colon? 3 A. Yes. 4 Q. And if there's a perforation of the colon 5 after a pristine bowel prep, of what concern is there to 6 you generally, as a gastroenterologist, about the 7 bacteria in the colon getting out from the colon wall as 8 a result of a perforation? 9 A. Again, it's a concern, which is why the first 10 thing you do, when - when you recognize a perforation of 11 the colon, is place the patient on antibiotics. 12 Q. What's a Fleet's enema? 13 A. A Fleet enema is a laxative given through the 14 rectum and it's typically given as part of a preparation 15 for either a sigmoidoscopy or sometimes in conjunction 16 with an oral preparation for a colonoscopy. 17 Q. In a patient such as Mr. Thompson, would there 18 be any reason for a gastroenterologist, in your 19 professional opinion, to recommend the use of a Fleet's 20 enema 10 to 12 hours after a colonoscopic polypectomy? 21 MR. HUPP: Objection. 22 THE WITNESS: No. And, actually, if anything, 23 it would be contraindicated because enemas can 24 increase the risk of - if you have a perforation, it 25 can make it worse. 0036 1 BY MR. MISHKIND: 2 Q. Doctor, what are the indications - are there 3 indications for using a Fleet's enema in a patient who 4 has had a good popagot, easy for me to say, a good bowel 5 prep and has - is now 10 to 12 hours after a 6 colonoscopy? Would you tell the jury whether that - 7 there is any clinical indication for the use of a 8 Fleet's enema on a patient such as - under those 9 circumstances? 10 MR. HUPP: Objection. 11 THE WITNESS: There would not be. 12 BY MR. MISHKIND: 13 Q. And explain to the jury why. 14 A. Again, the only reason to give a Fleet enema 15 after a colonoscopy would be if the prep was inadequate 16 and you wanted to add to the preparation by removing 17 more stool. In somebody who, ten hours after a 18 colonoscopy, has complaints of abdominal discomfort, 19 bloating, pain, to give a Fleet enema, as I said, would 20 be contraindicated. One of the possibilities, a 21 perforation, and a Fleet enema is contraindicated in 22 patients with perforation or suspected perforation. 23 Q. Do you have an opinion in this case, and we'll 24 talk in greater detail about the time line of events, 25 but do you, first of all, was there, according to your 0037 1 review, was there a recommendation made by Dr. Melamud 2 to Mr. Thompson to use a Fleet's enema? 3 A. Yes, there was. 4 Q. And do you have an opinion in this case 5 whether or not the recommendation by Dr. Melamud to Mr. 6 Thompson to use a Fleet's enema, whether or not that was 7 reasonable and acceptable? First, do you have an 8 opinion? 9 A. Yes, I do. 10 Q. And what is your opinion? 11 MR. HUPP: Objection. 12 THE WITNESS: That that was not a reasonable 13 recommendation. 14 BY MR. MISHKIND: 15 Q. Do you have opinion as to whether or not the 16 recommendation to use a Fleet's enema by Dr. Melamud, 17 whether or not that violated the standard of care for a 18 reasonable and prudent gastroenterologist? 19 MR. HUPP: Objection. 20 BY MR. MISHKIND: 21 Q. First, do you have an opinion? 22 A. Yes, I do. 23 MR. HUPP: Objection. 24 BY MR. MISHKIND: 25 Q. And what is your opinion? 0038 1 A. That it did violate the standard of care. 2 Q. And explain to the jury why specifically using 3 a Fleet's enema or recommending a Fleet's enema to Mr. 4 Thompson was a violation of the standard of care. 5 MR. HUPP: Objection. 6 THE WITNESS: Again, number one, in a patient 7 with a possible perforation, this could have 8 worsened the perforation by either making it larger 9 or by facilitating movement of colonic contents 10 through the perforated colon. And, number two, it 11 also was used as a temporizing measure that delayed 12 further medical treatment. 13 MR. HUPP: Move to strike. 14 BY MR. MISHKIND: 15 Q. Doctor, is bloating post-colonoscopy, 10 to 12 16 hours after a polypectomy where a patient, when they 17 leave the hospital, when the procedure is done, 18 completed, they're not complaining of any bloating, 19 they're not complaining of an inability to pass gas, is 20 bloating 10 to 12 hours after a polypectomy a common 21 complaint? 22 A. No, it is not. In that situation, no. 23 Q. Explain to the jury why. 24 A. Again, when - when we do a colonoscopy, we're 25 putting air in the colon. As the scope is coming out, 0039 1 we're trying to remove as much of the air as possible so 2 that the patient is comfortable when they wake up so 3 that they come back for the next colonoscopy. It's not 4 unusual for patients, after the colonoscopy is performed 5 and the anesthesia has worn off, for them to complain of 6 a little bit of bloating and that's why they're kept in 7 the recovery area until they're passing gas and any 8 discomfort that they have is better than it was when 9 they first awoke and completed the procedure. 10 In somebody such as this situation who in 11 the - the notes, and we can find the exact spots, but in 12 the notes when they woke up in the recovery area was not 13 complaining of any abdominal pain, was not having any 14 difficulty passing gas, goes home and then ten hours 15 later is having, you know, is having symptoms of 16 bloating that is causing a concern to call the 17 physician, that patient has gotten worse, as opposed to 18 getting better, in your consideration of what is 19 happening, you need to consider a perforation. 20 Q. How many colonoscopies do you perform a year, 21 Doctor? 22 A. About 1,000 a year. 23 Q. How many colonoscopies have you performed 24 during your career? 25 A. About 15,000. 0040 1 Q. Of the 15,000 colonoscopies that you've 2 performed, how many times have you experienced, 3 yourself, a perforation? 4 A. Three or four. 5 Q. When was the last time that you had a 6 perforation? 7 A. It was about four or five years ago. 8 Q. Have you ever had a patient, as a result of 9 the perforation, develop peritonitis? 10 A. As a result of a perforation develop 11 peritonitis, yes. 12 Q. Have you ever had a patient die following a 13 complication following a colon perforation? 14 A. No. 15 Q. What did you do under the circumstance where 16 the patient developed the peritonitis? 17 A. As soon as the perforation was recognized, the 18 patient was placed on intravenous antibiotics, given 19 intravenous fluids, a surgical consultation was obtained 20 and the patient was operated on to repair the 21 perforation. Part of the process of recognizing the 22 perforation would include getting x-rays, imaging 23 studies to confirm the perforation. 24 Q. You said IV antibiotics and IV fluids? 25 A. Yes. 0041 1 Q. What's the purpose of IV fluids? 2 A. Again, when - when patients have perforations 3 it affects the hemodynamic stability of the body. Blood 4 pressure can drop. Heart rate can rise. Patients can 5 rapidly become dehydrated, so you're giving them fluids 6 to help maintain the normal hemo, you know, stasis of 7 the body. 8 Q. The IV antibiotics, the IV fluids, is this 9 something that needs to be done in an intensive care 10 unit? 11 A. Again, depending on the situation, you can do 12 it, if it's recognized in the endoscopy department, you 13 would - you can - that's something that can be done in 14 the endoscopy department if it's part of the hospital. 15 If it's in an outpatient facility, it would typically be 16 done in the emergency room before the patient is taken 17 to surgery. 18 Q. The situation where you had a patient develop 19 peritonitis, where was the patient? 20 A. I believe three of them was - were at the 21 hospital. One at an outpatient center. 22 Q. And what did you do -- So all three of them 23 in a medical facility? 24 A. Yes. They were in a medical facility. The 25 one at the outpatient center was transferred to the 0042 1 hospital emergency room and was treated there before 2 going to the operating room. 3 Q. And all three of those patients survived? 4 A. Yes. 5 Q. Would you tell the jury what is required of a 6 gastroenterologist to comply with the standard of care 7 to provide reasonable and safe care in responding to a 8 patient's complaint - complaints if there's reason to be 9 concerned of a possible colon perforation? 10 A. If - if you suspect a perforation of the 11 colon, then you need to either, yourself, or send the 12 patient to the emergency room depending on the time of 13 day. If you're in the office, you can have the patient 14 come over to the office, you know, if it's nearby the 15 hospital, but the patient is ultimately going to most 16 likely need some type of imaging study of the abdomen, 17 an x-ray or a CAT scan, and - and then will need to be, 18 depending on what's found, if it is a perforation, 19 confirm, will need the intravenous antibiotics, the 20 surgery with a surgical consultation. 21 Q. Is it ever acceptable, Doctor, in your 22 professional opinion, and, Doctor, you understand 23 whenever I ask you for opinions I'm asking you to 24 provide opinions to a reasonable degree of medical 25 certainty, at least to the degree of probability. Do 0043 1 you understand that? 2 A. Correct. 3 Q. And I want you to - to follow that same 4 dictate, if you will, through all of my questions. Will 5 you do that? 6 A. Yes. 7 Q. Is it ever acceptable to recommend to a 8 patient that calls 10 to 12 hours after a polypectomy, 9 that did not have abdominal complaints at the time of 10 discharge, was able to pass gas at the time of 11 discharge, but calls 10 to 12 hours after the procedure, 12 is at their residence, is it ever acceptable and within 13 the standard of care when the patient calls complaining 14 of abdominal bloating, inability to pass gas and pain, 15 to prescribe the use of Fleet's enemas? 16 MR. HUPP: Objection. 17 THE WITNESS: No. 18 BY MR. MISHKIND: 19 Q. And we touched on that a moment ago, but under 20 those specific fact patterns will you tell the jury why 21 it's a violation of the standard of care? 22 MR. HUPP: Objection. 23 THE WITNESS: Again, because perforation needs 24 to be suspected and ruled out and a Fleet enema 25 would be contraindicated in somebody with a 0044 1 perforation. 2 BY MR. MISHKIND: 3 Q. What, in your professional opinion, needs to 4 be done in order to comply with the standard of care 5 under those circumstances? If a patient calls 10 to 12 6 hours afterwards, is getting worse, not better, has 7 abdominal bloating, inability to pass gas and pain, what 8 is required in order to comply with the standard of 9 care? 10 A. The patient needs to be sent to the emergency 11 room and evaluated for perforation with physical 12 examination and imaging study. 13 Q. Imaging studies being a - an x-ray of the - of 14 what? 15 A. I mean an abdominal series, which would be a 16 flat and upright x-ray of the abdomen. That may give 17 you an answer and, if not, then a CAT scan of the 18 abdomen and pelvis. 19 Q. I want to ask you is it ever acceptable to 20 recommend to that same patient that calls 10 to 12 hours 21 after a colonoscopic polypectomy where there was no 22 complaint of abdominal pain or discomfort, the patient 23 was able to pass gas at the time of leaving the 24 hospital, calls with complaints limited to abdominal 25 bloating and an inability to pass gas, but no complaints 0045 1 of pain, so eliminate the reference to pain, is it ever 2 acceptable and within the standard of care on that type 3 of patient to prescribe the use of a Fleet's enema? 4 A. No. 5 Q. Why? 6 A. And, again, for - for the same reasons. In - 7 in somebody who was fine and now has had a change in 8 symptoms hours after the procedure, perforation needs to 9 be considered and a Fleet enema would be contraindicated 10 in that case as well. 11 Q. Doctor, at my request some time ago, were you 12 provided with a lot of information about Mr. Thompson? 13 A. Yes. 14 Q. And were you provided with Dr. Melamud's 15 records, depositions of Dr. Melamud, actually two 16 different depositions, depo of Jean Thompson, the 17 autopsy, the South Pointe records for the procedure, the 18 outpatient colonoscopy, the records for the ambulance 19 when Mr. Thompson was - was found at his house at or 20 around midnight and then brought back to South Pointe 21 Hospital, and various depositions of - and reports of 22 experts for the defense, as well as a deposition of an 23 expert, Dr. Bochicchio, for the Plaintiff? 24 A. Correct. 25 Q. And did you review all of that information? 0046 1 A. Yes, I did. 2 Q. Is this the type of information that you 3 typically review in arriving at opinions in medical 4 negligence cases? 5 A. Yes. 6 Q. And in reviewing this case, did you take into 7 account that which Dr. Melamud said, as well as that 8 which Mrs. Thompson said? 9 A. Yes, I did. 10 Q. And so the record is clear, did you give the 11 benefit of the doubt to one party as compared to another 12 party in this case? 13 A. No. 14 Q. Did you consider that which Dr. Melamud 15 claims was discussed, as well as that which Mrs. 16 Thompson claims was discussed? 17 A. Yes. 18 Q. Doctor, we talked about peritonitis being a 19 potentially serious complication a moment ago; correct? 20 A. Correct. 21 Q. If left untreated, can peritonitis lead to 22 sepsis? 23 A. Yes. 24 Q. And what is sepsis? 25 A. Basically it's a systemic process where it's 0047 1 the body's response to a severe inflammatory infectious 2 process, so you can have a drop in blood pressure, a 3 rise in heart rate and rapid hemodynamic compromise. 4 Q. Let's talk specifically about Mr. Thompson. 5 His colonoscopy was performed at 8:30, or thereabouts, 6 8:30 a.m., on April 14, 2004; is that correct? 7 A. Correct. 8 Q. And the procedure itself took about how long? 9 A. I believe it took about 15 minutes. 10 Q. Is that fairly typical even though there were 11 three different areas that Dr. Melamud found and either 12 had thermal burn or used the snare to remove? 13 MR. HUPP: Objection. 14 THE WITNESS: Yes. 15 BY MR. MISHKIND: 16 Q. It's a fairly typical period of time? 17 A. Correct. 18 Q. Nothing, in and of itself, out of the ordinary 19 in terms of the length of time that the procedure took. 20 Is that a fair statement? 21 A. That's correct. 22 Q. And records indicate that Mr. Thompson would 23 have been discharged at or around 10 a.m. on the date in 24 question? 25 A. Correct. 0048 1 Q. Doctor, I want to show you a couple 2 photographs and these are actually from the procedure 3 itself, a color photograph. And then I'm also handing 4 you a document from the hospital which is referenced 5 surgical pathology. Would you, to the best that you can 6 given that these are small photographs, would you hold 7 them up and would you explain for the benefit of the 8 jury what we are looking at as we look at the color 9 photograph and then as we look at the - the pathology 10 report? 11 A. Sure. The first picture is the - these are 12 pictures taken during the colonoscopy. This is a 13 schematic diagram of the colon and it has little labels 14 that would correspond to each picture. 15 Q. Doctor, let me interrupt you for one second 16 because I want to make sure that the - the videographer 17 is able to see that. I was hoping to be able to project 18 this up on a screen today, but I had a little bit of 19 technical problem with my computer, so I want to make 20 sure that he can see the -- 21 A. He said he's got it. He's got it. 22 Q. He's giving us the okay, all right. 23 A. He gave us the thumbs up. 24 Q. Please proceed. 25 A. So the first picture in the upper left-hand 0049 1 corner is the polyp that corresponds to the descending 2 colon. The second picture in the upper right-hand 3 corner is a polyp that corresponds to that little black 4 dot in the rectosigmoid area. And the third picture in 5 the bottom left corresponds to the anal - the anal 6 rectal polyp, so one, two, three polyps. The second 7 sheet is basically biopsy specimens of the descending 8 colon polyp, the rectal polyp and the anal polyp with 9 the reports of what the pathology was. 10 Q. I'd like to talk about the area where you 11 understand from the records that you've reviewed, the 12 area where the perforation occurred in this case. 13 A. So the area where the perforation occurred was 14 the - the first area in the descending colon when that 15 polyp was removed. 16 Q. And looking at the pathology report, the area 17 where the - the polyp was removed, how is it described? 18 This is after it's been removed and sent to the lab. 19 What - what is described by - in the pathology report? 20 A. What's described in the pathology report is a 21 benign colonic mucosa with congestion without any 22 evidence of active inflammation or granuloma. 23 Q. So after it was removed, was it determined 24 that what was viewed to be a polyp was, in fact, a polyp 25 or not? 0050 1 MR. HUPP: Objection. Move to strike. 2 THE WITNESS: On the pathology specimen there 3 was no visualized polyp tissue. 4 MR. HUPP: Move to strike. 5 BY MR. MISHKIND: 6 Q. And going back to the - to the second area, 7 and actually, let's go back just in terms of the - the 8 description in the pathology report, based upon the 9 objection. What is described in the pathology report as 10 it relates to that - the first specimen in the 11 descending colon? 12 MR. HUPP: Objection. 13 BY MR. MISHKIND: 14 Q. Go ahead. 15 A. Again, it's what - what I just read. A benign 16 colonic mucosa with congestion. No evidence of active 17 inflammation or granuloma. 18 Q. And benign meaning? 19 A. Noncancerous. 20 MR. HUPP: Objection. Move to strike. 21 BY MR. MISHKIND: 22 Q. The second area, is that also described in the 23 pathology report? 24 A. The second area is described as a hyperplastic 25 polyp of the colon. 0051 1 Q. And what's a hyperplastic polyp? 2 A. A hyperplastic polyp is a benign 3 non-precancerous polyp of the colon. 4 Q. And then the third area is in the anus, which 5 would, just from a description standpoint, that would be 6 where the - the scope is initially inserted? 7 A. Right, the very bottom area. 8 Q. And what is the description? 9 MR. HUPP: Objection. 10 THE WITNESS: That's described as a squamous 11 mucosal tag with chronic inflammation and squamous 12 epithelial hyperplasia. No evidence of malignancy. 13 BY MR. MISHKIND: 14 Q. Doctor, do you have an opinion, to a 15 reasonable degree of medical certainty, whether the 16 areas that were removed at the time of the polypectomy, 17 whether any of those areas represented cancer? 18 A. They did not. 19 Q. Let's deal with some areas where I believe 20 you are -- Well, strike that. 21 Do you have any criticism of Dr. Melamud for, 22 first, for performing the colonoscopy on Mr. Thompson? 23 A. No. 24 Q. Do you have any criticism of Dr. Melamud for 25 allowing Mr. Thompson to be discharged at 10 a.m. from 0052 1 the endoscopy suite? 2 A. No. 3 Q. Do you have any criticism of, when I say 4 criticism, you understand I'm saying did he do anything 5 that would have violated the standard of care? 6 A. Correct. 7 Q. You understand that? 8 A. Correct. 9 Q. Do you have any criticism of Dr. Melamud prior 10 to 8:00 p.m., or thereabouts, when a telephone call 11 occurred to his answering service? 12 A. No. 13 Q. Do you have an opinion, based upon your 14 review in this case, to a reasonable degree of medical 15 certainty, of the time or the approximate time when 16 the per - when the perforation occurred? 17 A. Yes. 18 Q. First, do you have an opinion? 19 A. Yes, I do. 20 Q. And would you tell the jury what your opinion 21 is? 22 A. Yes. That more likely than not the event that 23 incited the - that led to the perforation began at the 24 time of the application of thermal current to the colon 25 wall at the time of the polypectomy and that the actual 0053 1 hole in the colon, the actual perforation, developed 2 most likely approximately four to six hours or so after 3 the colonoscopy was performed, so it was a delayed 4 perforation. 5 Q. Doctor, I want you to assume, for purposes of 6 this question, that a witness for Dr. Melamud will 7 testify that Mr. Thompson did not have a perforation 8 until four to five hours before he died or approximately 9 24 hours after his arrest and that the perforation that 10 was found at the time of autopsy had nothing to do, was 11 not causative, from a medical standpoint, with Mr. 12 Thompson's arrest or his death. 13 First, if an expert testifies that the 14 perforation occurred after his arrest and, in fact, 24 15 hours after his arrest, would you agree or disagree with 16 such an opinion? 17 MR. HUPP: Objection. 18 THE WITNESS: Yes, I would. 19 BY MR. MISHKIND: 20 Q. Which would you -- Which? Would you agree or 21 disagree with it? 22 A. I would disagree with that opinion. 23 Q. Tell the jury why. 24 MR. HUPP: Move to strike. 25 THE WITNESS: First of all, and we can pull 0054 1 out one of the x-ray reports. That might help just 2 to get the timing, but if the arrest occurred at 3 approximately midnight or so, there's x-ray 4 documentation of free air in the peritoneal cavity. 5 I don't remember the time of the x-ray. 6 BY MR. MISHKIND: 7 Q. I'll get that for you in a second. Why don't 8 you go ahead and continue. I'll - I'll hand that to you 9 in a moment, as soon as I find it. 10 A. But, again, there was evidence of - of free 11 air shortly after his arrest, so I would - I would 12 disagree that - that it occurred 24 hours after the 13 arrest. 14 Q. What is the significance of free air as found 15 on the - the x-ray? 16 A. Free air confirms the perforation. 17 Q. I'm going to hand you a page from the South 18 Pointe Hospital records, department of radiology, on 19 April 15, 2004. And if you would, hold that up and show 20 that to the jury and then explain the significance of 21 that report. 22 A. Okay. Here is a - an x-ray report done -- 23 Q. Doctor, if you could turn it just a little bit 24 for the benefit of the videographer. Thank you. 25 A. I'm trying to see here. It has the 15th at 0055 1 08:38, so at 8 a.m. x-ray shows a large amount of free 2 intraperitoneal air and that is consistent with a 3 perforation of the colon. 4 Q. In your review of the records, in terms of the 5 clinicians, the doctors that were caring for Mr. 6 Thompson, did anyone question whether Mr. Thompson or 7 did anyone indicate that they did not feel that Mr. 8 Thompson had a perforation when he arrived at the 9 hospital being brought in by ambulance? 10 A. No. That was all documented in the progress 11 notes as soon as he got to the hospital. 12 Q. Let's talk about your understanding of why, 13 based upon your review of Mrs. Thompson's testimony; 14 okay? 15 A. Okay. 16 Q. What is your understanding from reviewing her 17 testimony as to why this telephone call was made at or 18 around 8:00 p.m. on April 14th? 19 A. According to Miss Thompson, her husband had 20 been complaining of the development of abdominal 21 bloating and distension and severe abdominal pain. 22 Q. And at what - about what time, according to 23 your review, did her husband start complaining of 24 severe, I'm not sure whether it was severe or sharp, but 25 pain, at or around what time did she start - did Mrs. 0056 1 Thompson testify that her husband complained of pain? 2 A. In the afternoon. 3 Q. And do you remember specifically what time it 4 was? 5 A. I - I can refer back to her deposition. I 6 believe it was four or five o'clock or so. 7 Q. If the testimony in this case is that his 8 complaint was late afternoon, early evening that he 9 complained of pain, that prior to that time he had been, 10 and I want you to assume that this is her testimony, 11 that he had been uncomfortable, he had been laying in 12 bed, he had had some bloating, but he did not start 13 experiencing pain until late afternoon, early evening, 14 and that then a telephone call was made to Dr. Melamud, 15 first is that consistent with your recollection of Mrs. 16 Thompson's testimony? 17 A. Yes. 18 Q. And what is your understanding as to what 19 occurred, Mrs. Thompson at 8:00, what's your 20 understanding of the - the exchange, if you will? 21 A. That he was uncomfortable. They called Dr. 22 Melamud and that was when he recommended the Fleet 23 enema. 24 Q. Now, obviously the telephone call that 25 occurred, Dr. Melamud spoke to - to Mr. Thompson; 0057 1 correct? 2 A. Correct. 3 Q. If Mrs. Thompson testifies that Dr. Melamud 4 recommended -- Strike that. 5 If Mrs. Thompson testifies that her husband 6 told Dr. Melamud that she had - that he had an inability 7 to pass gas, that he had pain, that he was getting 8 worse, not better, and Dr. Melamud recommended that Mr. 9 Thompson try a Fleet's enema and if that didn't work, 10 then to call him back, if that is the testimony, and 11 just to frame it again, call made to the answering 12 service. Dr. Melamud returned the call and the 13 information was provided about inability to pass gas, 14 bloating and pain and the recommendation was made, do 15 you have an opinion, under the circumstances of this - 16 in this case, whether or not Dr. Melamud complied with 17 or violated the standard of care? 18 MR. HUPP: Objection to hypothetical. 19 THE WITNESS: Yes. 20 BY MR. MISHKIND: 21 Q. What is your opinion? 22 A. That he did. 23 Q. That he did what? 24 A. Violated the standard of care. 25 Q. What should Dr. Melamud have done in order to 0058 1 have complied with the standard of care with that 2 history? 3 A. With that history he should have been referred 4 to the emergency room for evaluation. 5 Q. What is your understanding, from reviewing 6 Dr. Melamud's testimony, as to what he said occurred 7 during the telephone call when he spoke to Mr. Thompson 8 after returning the call from the - the answering 9 service? 10 A. I think the only difference was as to whether 11 there was pain or no pain, so everything else the same, 12 the bloating, inability to pass gas, the uncomfortable 13 feeling, but no pain. 14 Q. And further, if Dr. Melamud testifies that he 15 claims that he asked whether or not the patient had any 16 fever and claims that the patient didn't have any fever, 17 do you have an opinion, if we accept Dr. Melamud's 18 account, inability to pass gas, feeling of bloating 10 19 to 12 hours after this polypectomy, was it within 20 accepted standards of care for Dr. Melamud to give the 21 recommendation that he did in this case? 22 MR. HUPP: Objection. 23 BY MR. MISHKIND: 24 Q. First, do you have an opinion? 25 A. Yes, I do. 0059 1 Q. And what is your opinion? 2 A. That - that it was not acceptable within the 3 standard of care. 4 Q. Explain why. 5 A. Again - again, for the reasons that we said 6 before, that he's gotten worse as the day goes on. This 7 is now 10 hours after he was discharged from the 8 hospital and almost 12 hours after the colonoscopy was 9 performed. And - and we can get to the spot, but in 10 Dr. Melamud's deposition, you know, I believe he does 11 say that if patients complain of bloating a long period 12 of time after the colonoscopy, that he wants them to 13 be examined either in the office or in the emergency 14 room. 15 Q. If the call is made at 8:00 p.m. and Dr. 16 Melamud is not in the office, how can he examine the 17 patient? 18 A. And, again, in that situation they should be 19 sent to the emergency room. 20 Q. Is it, under the circumstances, is it ever 21 acceptable not to send a patient to the emergency room 22 to be evaluated to rule in or to rule out a potentially 23 life-threatening condition? 24 MR. HUPP: Objection. Asked and answered. 25 THE WITNESS: It is not. 0060 1 BY MR. MISHKIND: 2 Q. Doctor, do you have an opinion in this case as 3 to whether or not the perforation of the colon was a 4 cause of Mr. Thompson's death? 5 A. Yes. 6 Q. What is your opinion? 7 A. I believe that more likely than not that it 8 was. 9 Q. I want you to assume, Doctor, that there'll be 10 testimony in this case that the perforation was not a 11 direct and proximate cause of his death and, in essence, 12 the perforation that he had was just a coincidence. It 13 had nothing to do with his death. If that testimony is 14 essentially provided, that the perforation was not the 15 cause, it was just a coincidence, do you agree or 16 disagree with that? 17 A. I - I would disagree with that. 18 Q. Explain why. 19 A. Again, I would ultimately defer mechanisms 20 of - of alleged seizures or - or other processes to 21 neurologists or - or surgeons that specialize in 22 infectious processes, but as a gastroenterologist and as 23 a medical professional with training in - some training 24 in these specialties, that it seemed clearly obvious to 25 me that you don't coincidentally develop a - a seizure 0061 1 of - for no reason. 2 And if, in fact, he did have a seizure, the 3 more likely explanation would be that the seizure was a 4 result of an anoxic encephalopathy that developed as a 5 result of the perforation causing - causing this 6 inflammatory process, a systemic inflammatory response 7 that lead to the anoxia that - that may have led to a 8 seizure. 9 MR. HUPP: Objection. Move to strike. 10 BY MR. MISHKIND: 11 Q. Doctor, if the testimony was - is that the 12 colon perforation was not sufficient enough to have 13 caused peritonitis of a magnitude that would be 14 medically -- Strike that. 15 I want you to assume that the testimony will 16 be that the perforation was localized and that it was 17 not a medical cause of the patient's infection or the 18 patient's arrest. First, do you have an opinion as to 19 whether you agree or disagree with that? 20 MR. HUPP: Objection. 21 THE WITNESS: Yes, I do. 22 BY MR. MISHKIND: 23 Q. And what is your opinion? 24 A. I would disagree with that. 25 Q. Tell the jury the basis for that, please. 0062 1 A. Again, I don't know if we have any volume 2 quantification capability here, but the -- 3 Q. Go - go right ahead. I'm sorry. 4 A. The autopsy report done by the pathologist at 5 the hospital at the time of death, it was reported that 6 there was 1,000 cc's or a liter of exudative, which 7 essentially is pus, in the abdominal cavity. So if we 8 have a water bottle or something that we can show the 9 jury what actually a liter of pus would look like. 10 Q. You can use my empty bottle. What is that? 11 A. This empty bottle is a - a half a liter, so 12 basically two bottles of - of water full was spilled 13 into the peritoneal cavity and that should not be there 14 and it was - it was not water. It was exudate, as 15 described, or pus. 16 So in my, again, I would defer to a surgeon 17 who specializes in - in pus in the abdomen or infectious 18 processes in the abdomen, but, as a gastroenterologist, 19 a liter of pus in the abdomen would certainly be enough 20 to set off a systemic inflammatory response. 21 MR. HUPP: Objection. Move to strike. 22 BY MR. MISHKIND: 23 Q. I want to show you the autopsy for a moment 24 and that autopsy report, would you explain to the jury, 25 based upon your review, when this autopsy was done and 0063 1 who it was done by? 2 A. Yes. This autopsy was done by the - the 3 coroner's office. The autopsy was performed the day 4 after Mr. Thompson's death, so he expired at 4:30 in the 5 morning on April 16th, and the autopsy was performed on 6 the 17th at 8:30 in the morning. 7 Q. Doctor, you want to turn that? Let's go off 8 the record for just one second, if we could, please. 9 VIDEOGRAPHER: Off the record. The time is 10 5:10. 11 (Proceedings went off the record.) 12 VIDEOGRAPHER: We're back on the record. The 13 time is 5:12. 14 BY MR. MISHKIND: 15 Q. Doctor, before we went off the record you 16 were explaining about the autopsy and this is - was 17 performed the day after Mr. Thompson's death or the - or 18 the day of? I - I don't remember what you said. 19 A. It was the day after. 20 Q. And this is done by the coroner's office? 21 A. That's correct. 22 Q. And according to the review of the autopsy, 23 did the coroner have medical information from South 24 Pointe and a history on what had transpired? 25 MR. HUPP: Objection. 0064 1 THE WITNESS: Yes. 2 BY MR. MISHKIND: 3 Q. And in looking at the - the autopsy, are there 4 certain areas in terms of the coroner's findings that 5 are of significance to you as a gastroenterologist? 6 A. Yes. It would be the - the digestive tract 7 and the intra-abdominal cavity. 8 Q. And would you show the jury specifically in 9 the report what area you're referring to that's of 10 significance to you? 11 A. The first area is the internal examination. 12 Basically there - there are 1,000 cc's of amber fluid in 13 each plural cavity, as well as 1,000 cc's of amber fluid 14 in the peritoneal cavity with diffuse greenish yellow 15 exudate. 16 Q. And that greenish yellow exudate is, in simple 17 terms, what is that? 18 A. Basically pus. Exudate is pus. 19 Q. And pus is equal to? 20 A. It's infection. 21 Q. And that would be two of those? 22 A. Correct. 23 Q. Two of those water jugs? 24 A. Correct. 25 Q. Okay. And what else of significance, as it 0065 1 relates to you as a gastroenterologist, is found on the 2 autopsy? 3 A. On the - on the next page under digestive 4 tract, there's a .6 centimeter perforation of the colon 5 in the distal descending region near the junction of the 6 sigmoid colon, which was that area that we had pointed 7 to showing the polyps, and the margins of the 8 perforation show erythema, which is redness, and 9 greenish yellow exudate, so there's exudate locally in 10 the area of the perforation, but then throughout the 11 abdominal cavity is that one liter of - of pus. 12 MR. HUPP: Move to strike. 13 BY MR. MISHKIND: 14 Q. I want you to assume that one of the 15 Defendants' witnesses that will testify long after the 16 jury has heard your testimony, a Dr. Poleski, will 17 testify that the perforation that Mr. Thompson 18 experienced was totally and completely noncausative of 19 factors that contributed to his death. Do you agree or 20 disagree with that opinion? 21 A. I disagree. 22 Q. Tell the jury why. 23 A. Again, for the reasons I said. That this 24 was - there was evidence of exudate in the wall of the 25 colon, evidence of pus in the abdominal cavity and - and 0066 1 I think more likely than not that set off this systemic 2 inflammatory response that led to the anoxic 3 encephalopathy that led to his death. 4 MR. HUPP: Objection. 5 BY MR. MISHKIND: 6 Q. Doctor, do you recall what the patient's 7 white blood cell count was when the patient arrived in 8 the emergency room? 9 A. Yes, I do. 10 Q. Tell the jury. 11 A. He had a - a very low white blood cell count 12 2,000, which is sign of sepsis. 13 Q. How significant is that, if you know, in terms 14 of being a sign of sepsis? 15 A. I'd defer that to a - an infectious expert 16 other than to say that it was a drop from his normal 17 white blood cell count and that is a serious sign of - 18 of overwhelming infection. 19 Q. Doctor, let me ask you this. From your review 20 of the records, from the time that the patient was seen 21 by the ambulance attendants, brought to the hospital, 22 examined by doctors, were there any findings by any of 23 the clinicians that Mr. Thompson had bit his lips or had 24 any cuts in his mouth or his tongue that you could see? 25 A. Not that I recall, no. 0067 1 Q. I want you to further assume, Doctor, that 2 long after the testimony that you have provided has been 3 played, the jury's going to hear Dr. Poleski testify 4 that Mr. Thompson would have died, even if he had been 5 sent to the hospital for management of the perforation 6 at or around 8:00 p.m. or 9:00 p.m., that he would have 7 died anyway. Do you agree or disagree with that 8 opinion? 9 A. I would disagree with that. 10 Q. Tell the jury why. 11 A. Again, once again, I would - I would defer to 12 a critical care surgical infectious expert, however, if 13 a patient showed up to an emergency room before they had 14 their event that - that caused them to become 15 unresponsive and hemodynamically were stable and were 16 breathing on their own, that they could have been 17 resuscitated with fluids, probably mechanical 18 ventilation for - for their breathing, but should not 19 have not survived that event. 20 MR. HUPP: Move to strike. 21 BY MR. MISHKIND: 22 Q. And, Doctor, while you say you would defer to 23 a surgical infectious disease doctor in terms of the 24 particulars, do you hold the opinion that you just 25 stated in terms of him surviving to a reasonable degree 0068 1 of medical certainty? 2 MR. HUPP: Objection. 3 THE WITNESS: Yes. 4 BY MR. MISHKIND: 5 Q. Doctor, when you reviewed the case, did you 6 note the record that Dr. Melamud had written the day 7 after or the day of Mr. Thompson's arrest when he 8 was already at the hospital basically having suffered 9 the brain injury and - and was in critical condition, 10 did you note Dr. Thompson, excuse me, Dr. Melamud's 11 note? 12 A. Yes. 13 Q. And in reviewing the record from Dr. Melamud, 14 is there any indication that you could tell that Dr. 15 Melamud had indicated to the patient that he should go 16 to the emergency room? I'll hand you the note. 17 A. No. 18 Q. In fact, Doctor, isn't it fair to say that in 19 Dr. Melamud's note he indicated that he should try the 20 enema and if that didn't work, then he could call back? 21 A. Yes. 22 Q. Was that, in your opinion, in accordance with 23 reasonable and accepted standards of care for a 24 gastroenterologist? 25 MR. HUPP: Objection. Asked and answered. 0069 1 THE WITNESS: No, it was not. 2 BY MR. MISHKIND: 3 Q. Did that decision on Dr. Melamud's part, in 4 your opinion, put Mr. Thompson in a position of danger? 5 MR. HUPP: Objection. 6 THE WITNESS: Yes. 7 BY MR. MISHKIND: 8 Q. Explain to the jury why. 9 MR. HUPP: Move to strike. 10 THE WITNESS: If he would have been referred 11 to the emergency room at the time shortly thereafter 12 the phone call at 8:00, then he would have survived. 13 BY MR. MISHKIND: 14 Q. And, Doctor, I want to, based upon the 15 objection, I want to rephrase the question so that 16 there's no question at a later point, but do you have an 17 opinion as to whether or not Dr. Melamud exercised 18 reasonable care at the time that he told Mr. Thompson to 19 try the enema and if that didn't work, to call back? Do 20 you have an opinion? 21 A. Yes. 22 MR. HUPP: Objection. Asked and answered. 23 BY MR. MISHKIND: 24 Q. And your opinion? 25 A. That he did not. 0070 1 Q. The -- Doctor, I've asked you a number of 2 questions and we're getting very close to - to 3 finishing. I just want to wrap up with a few final 4 points. Up until 8:00 p.m., you have no criticism of 5 Dr. Melamud; true? 6 A. Correct. 7 Q. Regardless of the history, pain or no pain, in 8 your opinion, based upon the symptoms that Mr. Thompson 9 had, giving Dr. Melamud the benefit of the doubt in 10 terms of the abdominal distension, the inability to pass 11 gas, did Dr. Melamud meet appropriate standards of care 12 in responding to Mr. Thompson's post-colonoscopy 13 complaints at 8:00 p.m.? 14 MR. HUPP: Objection. Asked and answered. 15 THE WITNESS: No. 16 BY MR. MISHKIND: 17 Q. And do you hold an opinion, to a reasonable 18 degree of medical certainty, as to whether Mr. Thompson 19 would have died if he had been properly directed to the 20 emergency room and treated appropriately before he 21 suffered the arrest at or around 12 midnight? First, do 22 you have an opinion? 23 A. Yes. 24 Q. And what is your opinion? 25 A. That he would not have. 0071 1 Q. That he would not have what? 2 A. That he would have survived. 3 Q. That he would have? 4 A. He would have survived. 5 Q. Okay. Let's go off the record for just one 6 moment, please. 7 VIDEOGRAPHER: Off the record. The time is 8 5:23. 9 (Proceedings went off the record.) 10 VIDEOGRAPHER: We're back on the record. The 11 time is 5:29. 12 MR. MISHKIND: Doctor, thank you very much. I 13 have no further questions for you. 14 THE WITNESS: Okay. 15 CROSS (TODD DAVID EISNER, M.D.) 16 BY MR. HUPP: 17 Q. Doctor, my name is Steve Hupp. I represent 18 Dr. Melamud. In your experience, you have had two 19 patients die or at least you're aware of two patients 20 dying after a colonoscopy; is that true? 21 A. Correct. 22 Q. And, Doctor, both of those patients were over 23 age 70 and both of those patients underwent surgery and 24 died from sepsis following surgery; is that true? 25 A. Correct. 0072 1 Q. In your experience, not all perforations need 2 surgery? 3 A. Most perforations do need surgery, yes. 4 Q. Small perforations, however, do not 5 necessarily need surgery? I'm talking about small colon 6 perforations. 7 A. Small colon perforations as a result of an 8 infection, diverticulitis do need surgery. Colon 9 perforations after colonoscopy in otherwise healthy 10 patients that can tolerate surgery should all be managed 11 surgically. 12 Q. Doctor, at your deposition you said that 13 small perforations can seal off. Has that - has that 14 been your experience over time? 15 A. Again, if - if you want to point me to where I 16 said that. 17 Q. It was on - I believe it's on page 26, line 18 13. And for the record, that was the discovery 19 deposition I took of you on August 21st at this 20 location? 21 A. Yes. I'll read to you exactly what I said. I 22 said sometimes perforations can, if they're smaller than 23 that, can just seal off. Usually not perforations 24 induced by colonoscopy, but patients can have 25 diverticulosis and have a perforation and perforation of 0073 1 that kind can wall off in time. It becomes like a micro 2 perforation that walls off. Typically, colon 3 perforations will not spontaneously seal off. 4 Q. Due to the nature of the colon and the colon 5 walls, which are - there's muscle in the colon wall; 6 correct? 7 A. Correct. 8 Q. And the 6.6 centimeter, also known as six 9 millimeter perforation in this case, that perforation 10 was on autopsy tissue; correct? 11 A. Correct. 12 Q. In the living human body, that perforation 13 would be smaller; correct? 14 A. Yes. 15 Q. And the perforation itself was caused by a 16 complication of removing a polyp; correct? 17 A. Correct. 18 Q. And that perforation probably occurred, in 19 your opinion, as a delayed perforation; -- 20 A. Correct. 21 Q. -- correct? And that delay, in your 22 experience, has typically been 60 - six to eight hours 23 later? 24 A. You're talking about in this case? 25 Q. In general, Doctor. 0074 1 A. In general it can - it can occur, you know, 2 less likely, but it can occur a week later. We're 3 going, looking at this case, looking at his symptoms. 4 The symptoms that he developed that required - letting - 5 led to him making the phone call at 8:00 at night. 6 Q. Okay. Patients, in your experience, patients 7 could have a colon perforation, for whatever reason, and 8 actually survive for days prior to having surgery. Is 9 that your experience? 10 A. Again, every case is different, yes. 11 Q. And, in your experience, a man who's 57 years 12 old has a better chance of surviving a colon perforation 13 than someone who's frail and elderly in their late 14 '70s. You'd agree with that? 15 A. Every case is different. 16 Q. Well, Mr. Thompson was 57 years old at the 17 time? 18 A. Correct. 19 Q. You would not consider that to be elderly; 20 would you? 21 A. No. 22 Q. And with the exception of a history of seizure 23 disorder, he had no other significant medical history. 24 Would you agree with that? 25 A. Correct. 0075 1 Q. In terms of this chart, the hospital chart, 2 the EMS run sheet and the - the actual medical records 3 in this case, would you agree with me, Doctor, that 4 there is no evidence in any of those records that Mr. 5 Thompson complained of pain, pain, prior to his arrest? 6 A. Correct. 7 Q. The EMS run sheet, in fact, said that Mrs. 8 Thompson had spoken with her husband 24 - 25 minutes 9 before his arrest. You'd agree with that? 10 A. Yes. 11 Q. Peritonitis is a very painful condition. You 12 would agree with that? 13 A. Again, it can be. It doesn't always have to 14 be painful. 15 Q. One of the diagnostic criteria for peritonitis 16 is pain? 17 A. Yes. 18 Q. And if a patient has a colon perforation, you 19 would expect, in the ordinary course of events, the 20 majority of cases, you'd expect pain to be present; 21 wouldn't you? 22 A. Most patient will - will have pain, yes. 23 Q. Are you aware that the emergency room record 24 at the South Pointe Hospital records say - stated had 25 colonoscopy and, quote, felt bloated all day, period, or 0076 1 close quote. Are you aware of these records? 2 A. Yes. 3 Q. Wouldn't that history be taken from Mrs. 4 Thompson? 5 MR. MISHKIND: Objection. 6 THE WITNESS: Yes. At that time, yes. 7 BY MR. HUPP: 8 Q. Because, frankly, Mr. Thompson, at that 9 point, could not speak for himself; correct? 10 A. Correct. 11 Q. And, in your experience, physicians would take 12 a history by the family member who was present? 13 A. Correct. 14 Q. There was a mention of Dr. Melamud's office 15 or progress note that he wrote the - the next day and 16 you're aware of that progress note. It was after the 17 patient's arrest; correct? 18 A. Correct. 19 Q. In that progress note there's no indication 20 that the patient complained of pain. Would you agree 21 with that? 22 A. Correct. 23 Q. Doctor, if, hypothetically, a patient 24 complains of pain, you would expect a fellowship trained 25 gastroenterologist not to ignore that complaint? 0077 1 MR. MISHKIND: Objection. 2 THE WITNESS: Correct. Although, he did say 3 in his deposition that bloating all day long he'd 4 send the patient to get evaluated, too, and - and 5 he didn't -- 6 BY MR. HUPP: 7 Q. Listen to my question, Doctor, -- 8 A. -- and he didn't do that. 9 Q. -- if you can. I appreciate your - you being 10 an advocate for your position, but -- 11 MR. MISHKIND: Objection. 12 BY MR. HUPP: 13 Q. -- listen to my question. 14 MR. MISHKIND: Objection. Move to strike. 15 BY MR. HUPP: 16 Q. The question is pain. In this case would you 17 agree that it would be inconceivable for a fellowship 18 trained gastroenterologist to have a post-colonoscopy 19 patient complain of pain and have that physician ignore 20 that complaint? 21 MR. MISHKIND: Objection. 22 THE WITNESS: I have no comment on that 23 because I - anything is possible. 24 BY MR. HUPP: 25 Q. You would not a expect a fellowship trained 0078 1 gastroenterologist to ignore that complaint; would you? 2 MR. MISHKIND: Objection. 3 THE WITNESS: I would not expect, no. 4 BY MR. HUPP: 5 Q. And, Doctor, let's be honest. Pain after a 6 colonoscopy is a - is a - an issue that you have to deal 7 with and every trained gastroenterologist needs to 8 understand and deal with; correct? 9 A. Again, yes, but, you know, again, I - the only 10 thing I can say is and I think all - your 11 gastroenterology expert agreed, too, I don't think any 12 gastroenterology trained - fellowship trained 13 gastroenterologist would give somebody a Fleet enema 14 after a colonoscopy when they complained of bloating. 15 Q. Objection. Move to strike as nonresponsive. 16 Here - here's the point, Doctor. Pain after a 17 colonoscopy is not a subtle situation. During your 18 training you're taught that if you - if a patient has 19 pain after a colonoscopy, you need to have that patient 20 seen and examined; correct? 21 A. You're also taught not to give them a Fleet 22 enema, so I'll - I'll answer it that way. So you're 23 asking me is it inconceivable -- 24 Q. Objection. Move to strike as nonresponsive. 25 MR. MISHKIND: Objection. 0079 1 THE WITNESS: I mean, if you asked me if it 2 was inconceivable to give a Fleet enema, I'd say 3 that's inconceivable also. 4 BY MR. HUPP: 5 Q. Move to strike. Doctor, that's not the 6 question. Let - let's focus on my question for a second 7 and if you can't answer it, fine. 8 A. I did answer. I said -- 9 Q. You were trained -- 10 A. -- anything is possible. 11 Q. Okay. You were trained as a 12 gastroenterologist that if a patient complains of pain, 13 that they need to be seen and examined. You'd agree 14 with that? 15 A. Yes. 16 Q. Is it your opinion in this case that Dr. 17 Melamud was told that this patient was having pain and 18 completely ignored that complaint? 19 A. And - and the way I'll answer that is that 20 I'm not sure if he was told or wasn't told, but I think 21 even if he was just told about the bloating at that 22 time, and he agreed in his deposition, and we should 23 probably find that spot to point it out to the jury 24 here, that if someone complained of bloating all day 25 long, that he would have sent that patient to the 0080 1 emergency room, but he didn't do that, so I don't know, 2 I don't know him personally, so I don't know. 3 Q. Doctor, I'm going to ask you about bloating. 4 Right now we're - we're focusing on pain, okay, and 5 here's my question for maybe the third time and I'll 6 move on. You do not personally believe that Dr. Melamud 7 was told that this patient had pain; is this true? 8 MR. MISHKIND: Objection. 9 THE WITNESS: I don't know. He may have been. 10 He may not have been. It doesn't - I -- The jury 11 could decide if he was or wasn't. I don't know. 12 BY MR. HUPP: 13 Q. If Dr. Melamud was told of pain, that would be 14 indicative or could be indicative of a perforation; 15 correct? 16 A. Yes. 17 Q. And is it your opinion that Mr. Thompson had 18 severe abdominal pain as a result of his perforation at 19 or around the time of the call? 20 A. According to Mrs. Thompson, he did. I don't 21 know. I wasn't there. 22 Q. With a patient experiencing abdominal pain due 23 to peritonitis, how would that patient react physically 24 to the pain? 25 A. Depending on how tolerant they are of pain, 0081 1 everybody can react differently, which is why sometimes 2 patients with abdominal pain and perforations don't 3 get treated for three or four days because they have - 4 they don't complain about it as much as somebody else 5 might. 6 Q. Which would make those patients more 7 difficult to diagnose if they don't complain of pain and 8 don't respond like the vast majority of patients? 9 A. If they don't - if they don't -- The vast 10 majority of patients that I'm talking about would not 11 call because they're not complaining, but once they call 12 that's why they have to be evaluated because a call ten 13 hours after when they were fine before, that's enough to 14 trigger concerns. 15 Q. The vast majority of patients with a colon 16 perforation after a colonopy - colonoscopy experience 17 severe abdominal pain; is that true? 18 A. Right, because most patients that have 19 abdominal pain after colonoscopy with perforation, the - 20 that perforation results from the scope poking through 21 the wall or the side of the scope poking through the 22 wall with a larger hole. With a smaller hole, such as 23 is present here, they might not have as much pain. 24 Q. And they may not have as much peritonitis 25 because the hole is small? 0082 1 A. You know, 1,000 cc's of pus, to me, shows the 2 story as far as how much peritonitis or not, but we're 3 talking about the symptoms. Right, the symptoms may be 4 difficult to diagnose, so that's why when the patient 5 calls ten hours later, it's - it's a little cavalier to 6 handle it over the phone and give an enema. 7 Q. Was the word pus used in that autopsy, by the 8 way? 9 A. To me -- 10 Q. It was called amber fluid; right? 11 A. Exudate, which is pus. 12 Q. The fluid itself was described by - as amber 13 fluid; correct? 14 A. Amber exudate of fluid. You can - I guess we 15 can ask the pathologist. 16 Q. I mean, I'm just asking was it your 17 interpretation that that fluid was pus and why would pus 18 be amber colored, if you can answer that question? 19 A. I would - exudate is thick. Pus can be, it 20 doesn't have to be white, it can be amber colored if 21 it's - if it has the consistency and described as 22 exudative that's -- 23 Q. And just so we're -- 24 MR. MISHKIND: Excuse me. You're cutting the 25 witness off. Please let him finish. 0083 1 BY MR. HUPP: 2 Q. And just so we're clear, Doctor, the autopsy, 3 obviously, was performed on the body of Mr. Thompson 4 after his death? 5 A. Correct. 6 Q. The - the autopsy does not necessarily show in 7 what state Mr. Thompson's body was at the time the 8 telephone call was placed to Dr. Melamud; correct? 9 A. Correct. 10 Q. Now, you have seen Dr. Melamud's first and 11 second deposition transcripts; correct? 12 A. Correct. 13 Q. And the first time he was deposed was, less 14 than two years after the events, was on March 27, 2006? 15 A. I - I don't know. 16 Q. I'll represent to you that's on the 17 deposition. 18 A. Yes. 19 Q. At the time of the questioning from counsel, 20 he testified that he told Mr. Thompson after the Fleet's 21 enema, if you don't feel any better, either call me back 22 or go to the emergency room. If that is an accurate 23 statement, should Mr. or Mrs. Thompson have either 24 called Dr. Melamud back or gone to the emergency room? 25 A. Yes. 0084 1 Q. Would it be reasonable for Dr. Melamud -- 2 Well, strike that. 3 Let's talk about bloating now. You - part of 4 the procedure to do a colonoscopy is insufflation of 5 air; correct? 6 A. Correct. 7 Q. And you inflate the air in the colon so you 8 can, obviously, see the entire walls of the colon and 9 it - and it permits the scope to be advanced; correct? 10 A. Correct. 11 Q. Depending on the size of the patient and other 12 factors, there's a lot of air insufflated into a patient 13 during a colonoscopy; isn't there? 14 A. You put a lot of air in. You also try to 15 remove a lot of air on the way out. 16 Q. Just because a patient isn't complaining of 17 bloating at the time of his discharge does not 18 necessarily mean that he wouldn't feel bloating the rest 19 of the day; correct? 20 A. He should not - he should not continue to feel 21 worse as the day goes on. 22 Q. Okay. Where do you have the information that 23 he was feeling worse? Where do you derive that from? 24 A. We got the notes from when he left the 25 hospital. He had no complaints and we can find that. 0085 1 He was eliminating flatus, so he was passing gas, and he 2 had.... 3 Q. Well, let - let's be clear then. Feeling 4 worse is your characterization of his condition at the 5 time of discharge versus the time of the call? 6 A. Correct. 7 Q. In terms of bloating, though, and in terms of 8 air retention, you can have air retention after a 9 colonoscopy for a day or two? 10 A. Yes, but, again, it should continue to be less 11 air retention because if you're passing gas and not 12 complaining when you're at the center and you're leaving 13 and then it's severe enough to make a phone call ten 14 hours later, that - that's a worrisome problem. It's 15 more likely the patient who's complaining that they have 16 gas and bloating there and then you send them home and 17 as the day goes on, they pass gas, they feel better. 18 That - that is the typical scenario. 19 Q. Doctor, here's my - here's my question. You 20 can have a patient experience bloating and air retention 21 for more than 24 hours after a colonoscopy. True or 22 false? 23 A. Yes. 24 Q. In this case there was a rectal - there was a 25 lesion taken out of this - this patient's rectum; 0086 1 correct? 2 A. Correct. 3 Q. Rectal spasm can cause air retention; correct? 4 A. Correct. 5 Q. A Fleet's enema can cause or start the body 6 having peristalsis. That is the movement of the colon; 7 correct? 8 A. Correct, yes. 9 Q. Okay. And I understand your position, Doctor, 10 but the - the point is, if Mr. Thompson had rectal spasm 11 and was given a Fleet's enema, you could - the Fleet's 12 enema can actually start peristalsis again in having him 13 pass gas; correct? It is conceivable; right? 14 A. It is conceivable, but it - it's - it's 15 unheard of, as your experts have - have testified to. 16 Q. Objection, move to strike. 17 Doctor, let - let's put it this way. You do 18 not have an opinion to a probability that the Fleet's 19 enema caused this man's death? 20 A. Correct. 21 Q. And it's your - you cannot say, to a 22 reasonable degree of medical probability, that the 50 23 cc's or so that were - that he used for the enema went 24 up to the area in the, I guess, distal sigmoid or 25 proximal sigmoid? 0087 1 A. Distal sigmoid. 2 Q. Okay. Distal sigmoid. 3 A. Descending, distal descending colon proximal 4 sigmoid. 5 Q. Okay. And you've identified where the hole, 6 the perforation was? 7 A. Correct. 8 Q. 50 cc's of a Fleet's enema would not 9 necessarily go all the way up through that hole; would 10 it, Doctor? 11 A. No. 12 Q. And you can't state, to a reasonable degree of 13 medical probability, that but for the Fleet's enema 14 being given, this man would still be alive today; 15 correct? 16 A. What I can say about the Fleet's enema is 17 possibly it could have made things worse because if you 18 look on the package insert it's contraindicated in 19 perforation. The - the Fleet's enema, to me, using your 20 terms, was - was inconceivable, so it makes - it makes 21 me think more about the other possible inconceivable 22 things that could have been done in response to your 23 question. 24 Q. In terms of proximate cause, it is only 25 possible that the Fleet's enema played any role in this 0088 1 man's sickness or death; correct? 2 A. Only that it - it delayed because, again, the 3 wife said that he called. It took 45 minutes to return 4 the call, which is - I'm not saying that that's wrong. 5 And she said to go get a Fleet enema. He went - she 6 went out. She got the Fleet enema and then, you know, 7 he's saying that he told them to come to the hospital if 8 things got better - didn't get better, but, again, you 9 know, what time is that at? He arrested at 12:00, so 10 maybe he said to himself if I'm not better by 12:30, I'm 11 going to go to the emergency room. He wasn't - and then 12 he arrested at 12:00. 13 Q. Just for the record, though, you cannot 14 state, to a reasonable degree of medical probability, 15 whether the Fleet's enema caused or contributed to cause 16 this man's death, in your opinion; correct? 17 MR. MISHKIND: Objection. Asked and answered. 18 THE WITNESS: Other than what I just said, 19 correct. 20 BY MR. HUPP: 21 Q. In terms of the patient not calling back, 22 could we also assume that since the patient did not call 23 back or go to the emergency room he did feel better? 24 MR. MISHKIND: Objection. 25 THE WITNESS: Again, I think it would be much 0089 1 less likely given the fact that he had a 2 perforation. A perforation should not - you should 3 not feel better when you have a perforation. 4 BY MR. HUPP: 5 Q. Okay. But Mr. Thompson had already had two 6 previous colonoscopies. You're aware of that? 7 A. Yes. 8 Q. And Mr. Thompson, after discussing the 9 situation with Dr. Melamud, chose not, I guess we could 10 say, chose not to either call him back or go to the 11 emergency room? 12 A. Right, he was making - the patient was - was 13 making a decision when he should call back, but it's - 14 it's very likely that he arrested before he had a chance 15 to call back or go to the emergency room. 16 Q. But will you at least concede, Doctor, that it 17 is also just as equally possible that maybe he felt 18 better after the Fleet's enema and chose not to call the 19 doctor back? 20 A. Again, what - what I would say is, no, because 21 it's not a coincidence that he had a hole in his colon 22 with 1,000 cc's of whatever you want to call it in his 23 abdomen. He had that. Patients don't feel better when 24 they get perforations and when they're told to take an 25 enema. They just don't feel better. And if he did feel 0090 1 better somehow because of the enema, then that was bad 2 because it - it masked his symptoms of perforation 3 because we clearly we have a perforation that was there. 4 Q. And is it your opinion that in this case Mr. 5 Thompson, obviously having a delayed perforation, sat in 6 bed, became sicker and sicker with peritonitis, did not 7 experience pain or did experience pain, but for some, 8 whatever reason, arrested as a result of his peritonitis 9 five to seven hours after the perforation opened up? Is 10 that your opinion? 11 A. Yes. 12 Q. You've never personally experienced that 13 situation in your - in your career; correct? 14 A. Correct. 15 Q. And you've never personally, during your 16 training or your practice, never heard of a patient 17 dying at home five to seven hours after a colon 18 perforation; correct? 19 A. Correct, because they're, as soon as they 20 call, they're told to come in and they're operated on 21 before that time. 22 Q. Well, that's based on your experience, Doctor. 23 You've had - you're aware of two patients, 24 unfortunately, dying as a result of a per - as a result 25 of a colonoscopy perforation. Both of those patients 0091 1 died of sepsis after surgery; correct? 2 A. Correct. 3 Q. And they were in their 70s; correct? 4 A. Correct. 5 Q. There's no issue in this case concerning fever 6 and chills; correct? There's no discussion on either 7 side? 8 A. Correct. 9 Q. By either party; correct? 10 A. Correct. 11 Q. You were also trained, I'm sure, that if a 12 patient complains of fever and chills, that would be 13 another reason to have the patient brought in for an 14 examination after a colonoscopy? 15 A. Correct. 16 Q. In this case it's your opinion that bloating 17 alone 10 to 12 hours after the procedure would be 18 sufficient to make this patient go to an emergency room; 19 is that correct? 20 A. Yes, bloating that was not present earlier. 21 Again, if somebody just calls up and says they've - 22 they've had bloating. It's all better. Is this going 23 to go away? But bloating and discomfort that was not 24 present at the time of discharge, yes. 25 Q. Are you telling this jury that you've sent 0092 1 every patient who's called you after a colonoscopy with 2 bloating to the emergency room? 3 A. I - I just told you what I said. If - if they 4 called me and said that they were bloated when they left 5 the hospital, is it - when is it going to go away? But, 6 yes, if somebody called and said I was feeling fine 7 until a few hours ago and I have - I'm very 8 uncomfortable and they called, because patients are told 9 before what to call for. Patients don't call typically 10 for benign bloating. 11 Q. I'm not asking hypothetically. In your 12 personal experience, Doctor, have you personally sent a 13 patient just with bloating after a colonoscopy to an 14 emergency room? 15 A. Right. I just told you no. 16 Q. You never have; correct? 17 A. You just said every patient. You just said do 18 you send every patient. 19 Q. Right. 20 A. So I said I do not send every patient that 21 calls with bloating to the emergency room. 22 Q. I think counsel's talked about this, but I 23 just want to make it absolutely clear. The fact that 24 the tissue was removed during this colonoscopy and for 25 whatever tissue was removed, the three you discussed in 0093 1 the pathology report, does not mean that Dr. Melamud 2 breached the standard of care during the performance of 3 the colonoscopy; correct? 4 A. Correct. 5 Q. In fact, it's your opinion that Dr. Melamud 6 met the standard of care in all respects until the 7 telephone call at approximately 8 p.m.; correct? 8 A. Correct. 9 Q. In your experience, when you have patients 10 call you with bloating, one of the things you tell them 11 to do is put a heating pad on and walk around? 12 A. Again, depending on the circumstance, yes. 13 Q. Walking around is something that contributes 14 or causes peristalsis or it helps peristalsis? 15 A. Correct. 16 Q. And so the jury's aware, define peristalsis. 17 A. It's the normal contractions of the colon. 18 Q. And as humans we're designed to actually walk 19 on a daily basis to assist in our body's processing of 20 foods and to eliminate fecal material? 21 A. Correct. So patients that are sedentary, not 22 moving around, are going to be more prone to 23 constipation. 24 Q. In retrospect, it doesn't appear that Mr. 25 Thompson had walked at all during the day of his 0094 1 colonoscopy; is that true? 2 A. Correct. 3 Q. Because I think Mrs. Thompson said he was on 4 the couch for a while and then he went upstairs and went 5 to bed and laid in the bed and watched TV; correct? 6 MR. MISHKIND: Objection to the hypothetical. 7 THE WITNESS: Correct. 8 BY MR. HUPP: 9 Q. In your experience, Doctor, do patients with 10 peritonitis watch TV? 11 A. Again, everybody handles pain differently. 12 Q. It's your testimony, at least you've 13 testified in the past, that aside from gastroenterology, 14 you do not hold yourself out as an expert in any other 15 field of medicine; is that true? 16 A. That's correct. 17 Q. However, since you brought it up in this case, 18 are you aware that Mrs. Thompson said that her husband 19 had had a seizure probably a year before his death? 20 A. No. I - I thought that his last seizure had 21 been five years before his death. 22 Q. Are you aware that Mrs. Thompson testified 23 that Mr. Thompson would have seizures three to four 24 times a year for - since - from the '80s until 2004? 25 A. No. 0095 1 Q. And it was Mrs. Thompson -- Well, strike 2 that. 3 We do know that Mr. Thompson was on Dilantin, 4 which is an antiseizure drug? 5 A. Correct. 6 Q. While I understand your opinion, you are aware 7 that there was a treating physician, Dr. Mars, a 8 neurologist, who consulted on Mr. Thompson's case. 9 You're aware of that? 10 A. Yes. 11 Q. And Dr. Thompson (sic) concluded, quote, he 12 has an antecedent history of seizure, had seizure and 13 then probably - and probably then developed secondary 14 cardiac arrhythmia. This is a fairly common occurrence, 15 period, close quote. 16 MR. MISHKIND: Objection. 17 BY MR. HUPP: 18 Q. Are you aware of that report, Doctor? 19 A. I'm - I'm aware of that report, but I don't 20 think I'm qualified to interpret that report. 21 Q. Would you agree that Dr. Mars was a treating 22 physician in this case and obviously not an expert hired 23 by either side? 24 A. Yes. 25 Q. And you're aware that this patient had 0096 1 actually been seen by Dr. Mars in the past? 2 A. Yes. 3 Q. And that an EEG had been performed? 4 A. That I'm not aware of. 5 Q. As a gastroenterologist, you're not in a 6 position to disagree with the treating physician, Dr. 7 Mars', diagnosis for this patient; is that true? 8 A. Correct. 9 Q. You had mentioned that you've done ten - at 10 least ten cases for Mr. Mishkind's firm? 11 A. Correct. 12 Q. Doctor, you testified the same thing a couple 13 years ago in a case, which I'm sure you might remember, 14 it was from one of Mr. Mishkind's partners, Murphy 15 versus Dr. Hiti? 16 A. Yes. 17 Q. So it would be fair to say that this is at 18 least the 11th or 12th case you reviewed for Mr. 19 Mishkind's firm? 20 A. I'm pretty sure that at the time of that 21 deposition I had already reviewed this case. 22 Q. It's possible. 23 A. When was the date on that deposition? 24 Q. That deposition was April 16th of 2007. 25 A. Yeah, so I'm pretty sure that I had reviewed, 0097 1 I don't - I don't have a copy of my report, but I'm 2 pretty sure that I had reviewed that - this case before 3 2007. 4 Q. Fair enough. The fee schedule that you put 5 together actually includes Mr. Mishkind as one of your 6 references; is that true? 7 A. That's true. 8 Q. And in terms of your medical-legal work, you 9 have joined or at least work with two other corporations 10 that send your name to attorneys, TASA and JDMD? 11 A. Yes. 12 Q. And did you also, Doctor, send 200 or 300 13 e-mails or letters to attorneys in terms of advertising 14 your services as a medical expert? 15 A. Yes. Back in the late '90s through a legal 16 nurse consultant she had recommended that I send e-mails 17 to some of her colleagues' offices. 18 Q. And you have done at least 80 depositions as a 19 medical expert? 20 A. Yes. 21 Q. And you've testified in between 12 and 16 22 states in the - in the United States? 23 A. That's correct. 24 Q. 10 percent of your income is derived in 25 medical-legal work; correct? 0098 1 A. Correct. 2 Q. And aside from medical-legal work you practice 3 general gastroenterology; correct? 4 A. Correct. 5 Q. Doctor, I think that's all the questions I 6 have at this moment. Thank you. 7 REDIRECT (TODD DAVID EISNER, M.D.) 8 BY MR. MISHKIND: 9 Q. Doctor, I have a few questions for you just 10 to kind of clarify things. Number one, the reference to 11 the having Mr. Mishkind as a - as a reference, if I 12 could borrow that for a second, -- 13 MR. HUPP: Sure. 14 BY MR. MISHKIND: 15 Q. -- on the fee schedule, when was this 16 prepared? 17 A. That was prepared back in around 2002, 2003. 18 Q. And what was the reason that you had five, 19 six years ago my name, as well as two other attorneys on 20 the reference list? 21 A. Attorneys or legal nurse consultants that 22 wanted a copy of my C.V. had wanted some references and 23 I had worked with you on more than one case, so I put 24 the name there. 25 Q. Doctor, again, going back to your 0099 1 medical-legal work, you've done work for both 2 plaintiff's lawyers, as well as defense attorneys; 3 correct? 4 A. Correct. 5 Q. And we talked about Dr. Mars. Let's talk 6 about the coroner. The coroner was not hired by my firm 7 to do this autopsy? 8 A. No. That was done the day after he died 9 before any lawsuit was considered, I would think. 10 Q. And the coroner, in terms of the cause of 11 death, based upon your review of this document, 12 indicated that the cause of death was due to what? 13 A. I can read exactly what they said here. 14 Anoxic encephalopathy. Acute ischemic cerebral infarct 15 and acute peritonitis. Cardiopulmonary arrest following 16 colonoscopy and polypectomy with perforation of 17 descending colon and they described it as accidental 18 death. 19 Q. You were asked questions about the Fleet's 20 enema not being the cause of the death. Do you have an 21 opinion as to whether or not the recommendation by Dr. 22 Melamud in terms of using a Fleet's enema in the course 23 of treatment caused a delay in the treatment of this 24 patient? 25 MR. HUPP: Objection. 0100 1 THE WITNESS: Yes. As I stated, yes. 2 BY MR. MISHKIND: 3 Q. And do you have an opinion at 8 p.m., pain or 4 no pain, what Dr. Melamud should have done in terms of 5 playing - what should Dr. Melamud have done in order 6 to - to provide safe and reasonable care to this 7 patient? 8 MR. HUPP: Objection. 9 THE WITNESS: Referred him to the emergency 10 room. 11 BY MR. MISHKIND: 12 Q. And tell the jury what the significance is of 13 the Fleet's enema as it relates to that time period 14 between 8 a. - 8 p.m. and when he arrested. 15 A. Again, it was used as a temporizing measure 16 and delayed him getting to the emergency room. 17 Q. Now, there was questions about fellowship 18 trained gastroenterologists. Do you know whether Dr. 19 Melamud is fellowship trained? 20 MR. HUPP: Objection. 21 THE WITNESS: I assumed that he was. I don't 22 know. 23 BY MR. MISHKIND: 24 Q. Mr. Hupp read a section from Dr. Melamud's 25 deposition taken two some - two or so years after Mr. 0101 1 Thompson died concerning his statement about calling or 2 going to the emergency room. Do you recall that? 3 A. Yes. 4 Q. Now, the day after Mr. Thompson was in the 5 hospital and Dr. Melamud wrote a note, is there any 6 reference at all by Dr. Melamud in terms of telling the 7 patient that if he didn't feel better, that he should go 8 to the emergency room? 9 A. No. 10 Q. Can we agree that this note was written at or 11 near the time of the events, as compared to two years 12 later when Dr. Melamud's deposition is taken? 13 A. Yes. 14 Q. Now, with regard to the patient taking the 15 enema and then laying in bed, and I want you to assume 16 that the patient was in bed not, as suggested, on a 17 couch, but laying in bed at all times after the enema, 18 was it reasonable, in your opinion, for the patient to 19 allow a period of time to go by in response to Dr. 20 Melamud's recommendation to him to try the Fleet's 21 enema? 22 A. Yes. 23 Q. Are you critical of Mr. Thompson, given the 24 time period that we have, 8 p.m. telephone call, are you 25 critical of Mr. Thompson for not calling back prior to 0102 1 his arrest? 2 A. No. 3 Q. Talked about pain. Would you tell the jury 4 when someone has peritonitis and has pain associated 5 with peritonitis, whether there is a phenomenon known as 6 guarding? 7 A. Yes, there is. 8 Q. Explain to the jury what that is, please. 9 A. Guarding is a phenomenon when you examine - it 10 can only be elicited by a physical examination that when 11 you touch the abdomen, the patient moves and responds 12 kind of moving away from you in response to your touch 13 of the abdomen. 14 Q. When the patient was in the emergency room in 15 the hospital, was he able, because of the nature of his 16 brain injury, to - to provide any clinical responses? 17 A. He had already arrested, so, no. 18 Q. When a patient has pain and they're at home, 19 do patients always, when they have peritonitis, do they 20 always writher - wither and move around because of the 21 pain? 22 MR. HUPP: Writhe. 23 MR. MISHKIND: What's the word? 24 MR. HUPP: Writhe. 25 MR. MISHKIND: Writhe, thank you. I knew it 0103 1 didn't sound right. 2 THE WITNESS: No, they - not always, no. 3 BY MR. MISHKIND: 4 Q. So the fact that Mr. Thompson was laying in 5 bed after the Fleet's enema, does that, in your opinion, 6 have any significance as to whether or not he did or did 7 not have a perforation? 8 A. No. 9 Q. Does it have any significance, in your 10 opinion, as to whether or not he did or did not have 11 peritonitis? 12 A. No. 13 Q. A lot of questions asked of you in terms of 14 the patient having pain or not having pain. So it's 15 very clear, in summary, regardless of whether or not the 16 patient did have pain, regardless of whether that's what 17 he told Dr. Melamud and that's what Mrs. Thompson heard 18 or not, at 8 p.m., with or without pain, was it within 19 accepted standards of care for Dr. Melamud to do 20 anything other than play safe and send the patient to 21 the hospital? 22 MR. HUPP: Objection. Asked and answered. 23 THE WITNESS: No. 24 MR. MISHKIND: Doctor, I have nothing further. 25 Thank you. 0104 1 RECROSS (TODD DAVID EISNER, M.D.) 2 BY MR. HUPP: 3 Q. Doctor, just one follow-up. I promise. 4 A. That's okay. 5 Q. It's your opinion, just so we're clear, that 6 the Fleet's enema caused a 45 - at least a 45 minute 7 delay in the treatment of this patient; is that true? 8 A. No. I think what I said the 45 minutes was, 9 there was some reference to that it took 45 minutes to 10 return the phone call, but then the wife went out to get 11 the Fleet enema and then the Fleet enema was 12 administered and then they're waiting for a response, 13 so - so, no. 14 Q. Forty-five minutes for whom to return the 15 phone call? 16 A. Dr. Melamud. I had mentioned that I had read 17 that somewhere that it took 40 - the answering service 18 was called and it took 45 minutes to return the call. 19 Q. Let me ask it this way. Is it - you cannot 20 state to a probability that the delay in the treatment 21 of Mr. Thompson was a proximate cause of his death; 22 correct? 23 A. What I'm saying is that if - if upon the phone 24 call at 8:00 he was told to come to the emergency room, 25 would have got there before 9:00, that even if he was - 0105 1 arrested at 12 when he was in the emergency room at 9 2 that he would not have died, so if that means that - 3 that it was a cause of his death, I'd say yes. 4 Q. Okay. And if, if, at 8:00 he was told to give 5 a Fleet's enema, at 9:00 he does the Fleet's enema, 6 maybe 10:00 doesn't feel better and calls back, at that 7 point you would expect Dr. Melamud to put him in the 8 hospital; correct? 9 A. I would expect that, yes. 10 Q. And under your scenario and under that 11 scenario, Mr. Thompson would have been in the hospital 12 at the time of his arrest. You'd agree with that? 13 MR. MISHKIND: Objection. 14 THE WITNESS: If he was told specifically to 15 call me at 10:00, yes, but if it's open ended and 16 he's - I don't know what Mr. Thompson expected what 17 time period to get a response and I don't know what 18 time the enema was actually administered either. 19 BY MR. HUPP: 20 Q. You would agree, though, it is clear because 21 Mrs. Thompson and Dr. Melamud both agree that Dr. 22 Melamud told Mr. and Mrs. Thompson to call back after 23 the Fleet's enema. You'd agree with that? 24 MR. MISHKIND: Objection. 25 THE WITNESS: To call back, yes. 0106 1 MR. HUPP: I have nothing further, Doctor. 2 FURTHER REDIRECT (TODD DAVID EISNER, M.D.) 3 BY MR. MISHKIND: 4 Q. Doctor, one more question. The note, would 5 you read what Dr. Melamud said at, he marked down 8 6 p.m., but Dr. Melamud -- 7 A. Said it was 8 a.m. 8 Q. -- said 8 a.m., but what did he mark down in 9 terms of the time period as to when he should call back 10 or - or what the directions were by Dr. Melamud? 11 A. Fleet would help him to expel gas and call me 12 if he doesn't feel better. 13 Q. Does it indicate a time period in terms of 14 when the patient was told to call back? 15 A. No. 16 Q. Does it indicate how long the patient should 17 wait to give the Fleet's enema an opportunity to help 18 with his symptoms, assuming it was going to? 19 A. No. 20 Q. If one is going to use a Fleet's enema under 21 these circumstances, I want you to hypothetically assume 22 that somehow it was reasonable to do that, would you 23 expect that a reasonable and prudent doctor would give 24 specific instructions as to how long you should allow 25 the Fleet's enema to work and specific instructions in 0107 1 terms of how soon you should call back? 2 MR. HUPP: Objection. 3 THE WITNESS: Yes. 4 BY MR. MISHKIND: 5 Q. And is there any indication in this case, even 6 assuming that one could say that the Fleet's enema was 7 okay to use, any indication that Dr. Melamud did that? 8 A. No. 9 Q. And was that reasonable and prudent under the 10 circumstances for him to just say use a Fleet's enema 11 and if you're not feeling better to call back with no 12 specific instructions to this patient? 13 MR. HUPP: Objection. 14 THE WITNESS: No. 15 MR. MISHKIND: Nothing further. Thank you. 16 MR. HUPP: Nothing further. 17 MR. MISHKIND: Doctor, will you -- 18 VIDEOGRAPHER: Off the record. The time is 19 6:08. 20 (The video portion of the deposition went off 21 the record.) 22 MR. MISHKIND: On the record, would you waive 23 the requirement of reading and signing the 24 deposition so that this can be filed with the Court? 25 THE WITNESS: Yes. 0108 1 MR. MISHKIND: And will you also waive the 2 requirement of viewing the video? 3 THE WITNESS: Yes. 4 MR. MISHKIND: Steve, you have no objection; 5 do you? 6 MR. HUPP: No. 7 MR. MISHKIND: Okay. Thank you. 8 (Witness was excused.) 9 (Deposition was concluded.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 0109 1 CERTIFICATE OF OATH 2 3 THE STATE OF FLORIDA 4 COUNTY OF PALM BEACH 5 6 7 I, the undersigned authority, certify that 8 TODD DAVID EISNER, M.D., personally appeared before me 9 and was duly sworn on Friday, November 7th, 2008. 10 11 12 Dated this 17th day of November, 2008. 13 14 15 16 ____________________________________ MARY M. KARNS, Shorthand Reporter 17 Notary Public - State of Florida My Commission No.: DD762114 18 My Commission Expires April 23, 2012 19 Job #957941 20 21 22 23 24 25 0110 1 C E R T I F I C A T E 2 THE STATE OF FLORIDA COUNTY OF PALM BEACH 3 4 I, MARY M. KARNS, Shorthand Reporter and Notary Public in and for the State of Florida at Large, 5 do hereby certify that I was authorized to and did report said videotaped deposition in stenotype; and that 6 the foregoing pages are a true and correct transcription of my shorthand notes of said videotaped deposition. 7 I further certify that said videotaped 8 deposition was taken at the time and place hereinabove set forth and that the taking of said videotaped 9 deposition was commenced and completed as hereinabove set out. 10 I further certify that I am not an attorney or 11 counsel of any of the parties, nor am I a relative or employee of any attorney or counsel of party connected 12 with the action, nor am I financially interested in the action. 13 The foregoing certification of this transcript 14 does not apply to any reproduction of the same by any means unless under the direct control and/or direction 15 of the certifying reporter. 16 Dated this 17th day of November, 2008. 17 18 ____________________________________ 19 MARY M. KARNS, Shorthand Reporter Notary Public - State of Florida 20 My Commission No.: DD762114 My Commission Expires April 23, 2012 21 Job #957941 22 23 24 25