1 1 IN THE COURT OF COMMON PLEAS 2 CUYAHOGA COUNTY, OHIO 3 MARY WILLIAMS, etc., 4 Plaintiffs, JUDGE SAFFOLD 5 -vs- CASE NO. 406184 6 PARMA COMMUNITY GENERAL HOSPITAL, 7 et al., 8 Defendants. 9 - - - - 10 Deposition of MARTIN L. GIMOVSKY, M.D., 11 taken as if upon cross-examination before M. 12 Sheila Hanlon, a Registered Professional Reporter 13 and Notary Public within and for the State of 14 Ohio, at the offices of Nurenberg, Plevin, Heller 15 & McCarthy, First Floor Standard Building, 16 Cleveland, Ohio, at 12:15 p.m. on Wednesday, June 17 6, 2001, pursuant to notice and/or stipulations 18 of counsel, on behalf of the Defendants in this 19 cause. 20 - - - - 21 MEHLER & HAGESTROM Court Reporters 22 CLEVELAND AKRON 23 1750 Midland Building 1015 Key Building Cleveland, Ohio 44115 Akron, Ohio 44308 24 216.621.4984 330.535.7300 FAX 621.0050 FAX 535.0050 25 800.822.0650 800.562.7100 2 1 APPEARANCES: 2 David M. Paris, Esq. Harlan M. Gordon, Esq. 3 Nurenberg, Plevin, Heller & McCarthy First Floor 4 1370 Ontario Street Cleveland, Ohio 44113 5 (216) 621-2300, 6 On behalf of the Plaintiffs; 7 John W. Jeffers, Esq. Weston, Hurd, Fallon, Paisley & Howley 8 2500 Terminal Tower Cleveland, Ohio 44113 9 (216) 241-6602, 10 On behalf of the Defendant, Parma Community Hospital; 11 Janis L. Small, Esq. 12 Hanna Campbell & Powell 3737 Embassy Parkway 13 Akron, Ohio 44334 (330) 670-7300, 14 On behalf of the Defendants, 15 Dr. Hsieh; Physicians Staffing; 16 William Bonezzi, Esq. 17 Bonezzi, Switzer, Murphy & Polito 1400 Leader Building 18 Cleveland, Ohio 44114 (216) 875-2767, 19 On behalf of the Defendants, 20 The Women & Wellness Center; William Hahn, M.D. 21 22 23 24 25 3 1 MARTIN L. GIMOVSKY, M.D., of lawful age, 2 called by the Defendants for the purpose of 3 cross-examination, as provided by the Rules of 4 Civil Procedure, being by me first duly sworn, as 5 hereinafter certified, deposed and said as 6 follows: 7 CROSS-EXAMINATION OF 8 MARTIN L. GIMOVSKY, M.D. 9 BY MR. BONEZZI: 10 - - - - 11 (Thereupon, Defendant's Exhibits 1 12 and 2 were marked for purposes of 13 identification.) 14 - - - - 15 MR. BONEZZI: Let the record 16 show that this is the deposition of Martin 17 Gimovsky, M.D. who has been identified as 18 one of the experts in the case of Williams 19 versus Parma Community General Hospital, et 20 al. 21 Q. Doctor, I'm going to be asking you some questions 22 this afternoon pertaining to opinions that you 23 have set forth in a report dated December 28th, 24 2000. If during my questioning I ask you 25 something that you don't understand, at the 4 1 conclusion of my question, let me know. I will 2 attempt to rephrase the question so that you and 3 I can communicate, fair? 4 A. Yes, sir. 5 Q. Also, if I ask you something where you don't know 6 the answer, let me know. I don't want you to 7 engage in speculation, conjecture, et cetera. 8 Would that be acceptable? 9 A. I understand. 10 Q. Most importantly, at the conclusion of my 11 question if you would respond audibly, yes or no, 12 instead of a gesture et cetera, it will be 13 extremely helpful, not for us but for the court 14 reporter. 15 A. Yes, I understand. 16 Q. Would you give me your full and complete name, 17 please? 18 A. Martin Larry Gimovsky. 19 Q. Dr. Gimovsky, have you ever provided testimony on 20 behalf of the firm of Nurenberg Plevin prior to 21 this one? 22 A. Yes, I have. 23 Q. And could you tell me approximately how many 24 times? 25 A. Provided testimony? 5 1 Q. Yes. 2 A. I don't know. 3 Q. And I can break that down into depositions or 4 trial testimony if you like. 5 A. I think that I have been consulted by them on and 6 off for maybe the last seven or eight years, and 7 I would have testified several times, I don't 8 know if it's three or four. It's of that order 9 of magnitude. 10 Q. Have you ever testified on behalf of the 11 Nurenberg Plevin firm relating specifically to a 12 postpartum infection? 13 A. I don't specifically recall. 14 Q. Have you in the past prior to today provided 15 testimony either on behalf of the patient or on 16 behalf of a medical care provider that involves a 17 group A streptococcal infection in a postpartum 18 infection? 19 A. I don't specifically remember testifying in that 20 particular type of case, this particular type of 21 case. 22 Q. Okay. Going back to the number of times that you 23 have provided information or testimony on behalf 24 of Nurenberg Plevin, you indicated it's been in 25 the past seven or eight years, is that correct? 6 1 A. Yes. 2 Q. Do you happen to keep records by any chance as it 3 relates to the type of cases that you have been 4 requested to review and offer opinions on as it 5 relates specifically to this law firm? 6 A. No, I don't. 7 Q. Do you have any records that relate to the number 8 of cases that you have reviewed in the last ten 9 years? 10 A. No. 11 Q. I noticed that one of the co-defendant's counsel 12 provided a check to you. 13 MR. BONEZZI: May I see that, 14 David. Thank you. 15 Q. Now, that check would be made out specifically to 16 you, so I presume that at the conclusion of a 17 year you have a 1040 that would list all of the 18 outside activities from your medical practice. 19 Would I be correct in that? 20 A. Yes, all my income is reported, as is everyone 21 else's. 22 Q. No, that's not what I'm asking for. That would 23 be some type of record that would detail for 24 instance some amount of money that you earn or 25 generate as it relates to providing opinions? 7 1 A. You mean the 1099s that you receive? 2 Q. Yes, I said 1040, I mean 1099. 3 A. Yes. 4 Q. In the last five years, what would your average 5 be in which you've generated income as it relates 6 specifically to medical cases? 7 MR. PARIS: Objection. 8 Q. You may answer, doctor. 9 A. I would say it's ranged between 10 and 15 or 20 10 percent of my income. 11 Q. And I'm not going to ask you what your income is, 12 it's none of my business and I really don't care. 13 As far as this law firm is concerned, have 14 you been in the past requested to review records 15 and have informed them that you do not believe 16 that there is in fact a case involving a 17 departure from acceptable standards of care or 18 even if there was, that the departure did not 19 proximately cause the injury? 20 A. Yes, I would say most of the cases that I've 21 reviewed for this firm have come out that way. 22 Q. And when you have given testimony in three to 23 four cases -- less or more? 24 A. Yes. 25 Q. Would that be equal to the same number of cases 8 1 that you have turned down, or would that be a 2 lesser amount? 3 A. No, I would say I turned down more cases based on 4 the records than the question you just asked, 5 than I've supported as an expert. 6 Q. As far as the case involving Beth Williams is 7 concerned, did you bring your file with you 8 today? 9 A. Yes. 10 Q. And the file that you brought with you, does that 11 comprise all of the materials that you would have 12 reviewed at the time or prior to the time that 13 you generated your report, dated December 28th, 14 2000? 15 A. Before and after? 16 Q. I'll get to the after in just a moment. 17 MR. PARIS: There's two depos that 18 he left at home. 19 Q. And which depositions would those be? 20 A. I didn't carry them all on the plane. 21 Q. I understand. 22 MR. PARIS: Hsieh and Bazzo, I 23 think. 24 MR. JEFFERS: I couldn't hear you. 25 MR. BONEZZI: Dr. Hsieh and the 9 1 Nurse Bazzo. 2 A. I have a list of materials. 3 Q. Did you prepare this list? 4 A. Yes, I did. 5 Q. Is this your only list? 6 A. Yes. 7 MR. BONEZZI: Can I mark it. 8 MR. PARIS: Yes. 9 - - - - 10 (Thereupon, Defendant's Exhibit 3 11 was marked for purposes of identification.) 12 - - - - 13 Q. First of all, doctor, I'm going to hand you what 14 has been marked as Defendant's Exhibit 1, which 15 purports to be a copy of your report dated 16 December 28th, 2000. Is that the only report 17 that you have generated as a result of the review 18 of this particular case? 19 A. Yes, it is. 20 Q. Did you provide or did you author any further 21 communication relative to this case subsequent to 22 December 28th, 2000? 23 A. In terms of a report? 24 Q. In terms of opinions, it may not be in a report 25 form, it may be in a letter form? 10 1 A. Or did you say written, I'm sorry? 2 Q. Yes, it's written. 3 A. I don't think I have any other written. 4 Q. Subsequent to December 28 when this report was 5 authored, have you had communication with anybody 6 in this firm relative to your opinions as they 7 relate to review of further material provided to 8 you after the report date? 9 A. I'm sorry, can you hit me with that one again? 10 Q. Yes. Have you talked to anybody after December 11 28 in this firm regarding your opinions? 12 MR. PARIS: In other words, after 13 we sent you additional depositions. 14 A. Yes, I think after I read additional pieces that 15 were read afterwards that I probably spoke to 16 Mr. Paris. 17 Q. The material that you would have been provided 18 subsequent to December 28th? 19 A. Right. 20 Q. Did it cause any change in your opinion, either 21 your opinion is now stronger or your opinion is 22 weaker or you have either further opinions than 23 you, other than what you set forth in your 24 letter? 25 A. I think that my letter sets forth my general 11 1 opinion as to what occurred, although I would 2 change one or two words in it perhaps. Let me 3 see what came after December 28th. 4 Q. If you would please. 5 A. After? 6 Q. After December 28th. 7 A. After December 28th, okay. That would have been 8 the second half of Dr. Hahn's deposition. It 9 would have been Nurse Hulvachik, Dr. Martens and 10 some of the expert reports which are also most of 11 the expert reports are after that date in time. 12 After that date in time is the expert report 13 of a Dr. Raff, R-A-F-F, Dr. Soper, S-O-P-E-R, 14 Dr. Hammill, H-A-M-M-I-L-L, Dr. Flora, F-L-O-R-A, 15 Nurse Waters and a Dr. Armitage. Those are all 16 after that point in time. 17 MR. PARIS: And don't forget the 18 depos that you left at home. 19 MR. BONEZZI: We're talking about 20 that which he would have reviewed 21 subsequent to December 28th. 22 A. Nurse Bazzo's deposition was after that point. 23 MR. PARIS: Just for the record, 24 because you don't have this in front of 25 you, but I think Dr. Hsieh Part 2. 12 1 A. Right. So there's a lot of information that 2 occurred after my report. 3 Q. To what degree, if at all, did any of the reports 4 or depositions that you reviewed influence your 5 opinion as your opinion is set forth in the 6 December 28th letter? 7 A. Well, my opinion is based upon the medical 8 records primarily, and to a lesser extent where 9 the medical records are unclear, they're based 10 upon the treating doctors, nurses or the 11 patient's deposition. The expert reports I don't 12 really do much with, because my opinion should be 13 independent of the others, and that's how I feel 14 about it. I've seen some of them, but I really 15 haven't looked at them in any great detail or 16 relied on them for anything. 17 Q. Did any of the depositions that you reviewed of 18 the individual medical care providers provide you 19 any explanation for what you may not have 20 understood from the records? 21 A. Yes, I would have to say that the depositions of 22 Nurse Prokop and Dr. Hahn particularly, and 23 Dr. Hsieh to a lesser extent, based upon their 24 testimony showed a lot of conflict with the 25 records and with each other's testimony. 13 1 It was actually more confusing than helpful, 2 and those three depositions I think are at the 3 heart of the matter here. 4 Q. And after reviewing those records, were you able 5 to isolate what actually occurred when you 6 compare the deposition transcripts as opposed to 7 the medical records? 8 A. To an extent. 9 Q. Tell me about it. 10 A. To an extent you can tell what happened, but 11 where one person says one thing and one person 12 says the exact opposite thing, and the medical 13 record doesn't clearly delineate, I don't know 14 who's telling the truth or who remembers 15 accurately. 16 Q. So it would be a situation where if the 17 depositions are in conflict and the records are 18 somewhat confusing, you would not be able to 19 determine who's more accurate as it relates to 20 the testimony, would that be a fair statement? 21 A. I think you can say based upon practice what you 22 would anticipate and what you would expect and 23 what you would assume and all those types of 24 words, but you can't say definitely in this case 25 X, Y or Z unless when they're diametrically 14 1 opposed, no. 2 Q. Because expectations and what you would believe 3 should happen do not necessarily happen. Would 4 that be fair? 5 A. Isn't it true? 6 Q. Yes. 7 I'm going to hand you now what I have marked 8 as Defendant's Exhibit 3, which I believe sets 9 forth the information that you have reviewed? 10 A. Yes, sir. 11 Q. Just check that and tell me whether or not that 12 is accurate? 13 A. Yes. 14 Q. Now, I'm going to hand you Defendant's Exhibit 2, 15 and all I want you to do is tell me whether or 16 not this exhibit, which is rather lengthy, is 17 current and up to date, since I believe the last 18 time it was put together was 1999 if I'm not 19 mistaken. 20 A. This is a curriculum vitae from November of 1999, 21 so it's correct and up to date until November of 22 1999. 23 Q. Would you take a look at your bibliography please 24 and look at your writings, your teaching, the 25 talks that you have given, et cetera, and tell us 15 1 whether anything that is in that bibliography 2 covering the things that I just mentioned pertain 3 to the issues of this case, and if you do find 4 something, all I want would be the number that 5 corresponds to the case. 6 A. Well, there are papers that have to do with 7 preeclampsia, and eclampsia, which is I guess 8 related peripherally to this case. 9 Q. In what way? 10 A. The patient was admitted to the hospital because 11 of preeclampsia and was seen by Dr. Hsieh because 12 of shaking and shivering which was possibly felt 13 to represent a preeclampsia seizure. So 14 hypertensive disorders of pregnancy are related 15 to what occurred here. 16 You wanted to see what I have written about. 17 On Page 20, there's a chapter for a textbook on 18 invasive monitoring in pregnancy which deals with 19 preeclampsia and eclampsia, and a lot of these 20 papers deal with some issues that are related, 21 but not necessarily are major points. 22 Sorry to take a while. 23 Q. Take your time, please. 24 A. I have been privileged to look at a lot of 25 different cases. Page 24 here's a presentation 16 1 called Swan-Ganz Monitoring in Preeclampsia, 2 bottom of the page. Postpartum hypertension. 3 MR. JEFFERS: What page? 4 A. Page 27, Number 68 was a presentation on 5 preeclampsia and eclampsia. 6 MR. JEFFERS: Page 27 Number 68? 7 THE WITNESS: Yes. 8 A. Does co-authoring a textbook on vacuum extraction 9 count? It was a presentation on vacuum extractor 10 delivery. 11 MR. JEFFERS: What page was that? 12 THE WITNESS: That's back at the 13 beginning. It's on Page 20 under Books. 14 Both 1 and 2 deal with vacuum extraction. 15 Q. Okay. 16 A. Page 40 a conference on premature rupture of 17 membranes deals with infection in labor and 18 delivery. Page 41, here's Grand Rounds, 19 Premature Rupture of Membranes. Page 42, a 20 presentation at the American College meeting on 21 premature rupture of membranes. Further down on 22 Page 42 is another discussion of hypertension, 23 postpartum hypertension. 24 That's all I see on here in looking through 25 it. 17 1 Q. Okay. Thank you. 2 A. I don't know that in the last two years I have 3 written anything specifically about it. 4 Q. You have never written on postpartum group A beta 5 hemolytic strep infections, is that true? 6 A. Not specifically, no. 7 Q. Have you treated patients with a postpartum group 8 A beta hemolytic strep infection? 9 A. As diagnosed by blood culture, yes, twice. 10 Q. In how many years? 11 A. Since I have been in training and practice, the 12 last 25 years. 13 Q. And the outcome of those patients? 14 A. It was okay. 15 Q. Both lived? 16 A. Yes. 17 Q. At what point in time was there a recognition in 18 those particular cases just in general that the 19 potential, a potential infection existed? 20 A. Both of those cases were similar in that the 21 patients had a high spiking fever very early 22 after delivery. 23 Q. And when you say very early, if I may interrupt 24 for a moment. When you say very early after 25 delivery, what would be the time frame? 18 1 A. Between 12 and 24 hours. 2 Q. And when you say a spiking temperature, if you 3 can recall those two cases, was there a steady 4 progression of the elevation of that temperature, 5 or was there an actual spike that went up 6 dramatically, if you can remember? 7 A. As I remember it in at least one of the cases 8 there was a spike of the temperature, so the 9 patient received culturing and antibiotics, and 10 ultimately the cultures grew group A beta strep. 11 Q. Did either one of those patients, if you recall, 12 manifest a toxic shock-like syndrome? 13 A. I don't believe so. 14 Q. Is there a difference between a toxic shock-like 15 syndrome as a result of group A beta hemolytic 16 strep as opposed to an individual who has a 17 postpartum infection caused by the presence of 18 group A? 19 A. Could I have that again. 20 Q. What's the difference between the two? 21 A. You have to give me the whole thing again. 22 Q. I'm interested in knowing if there is a 23 difference between a group A beta hemolytic strep 24 infection in the postpartum era. 25 A. Right. 19 1 Q. As opposed to a group A beta hemolytic strep 2 toxic shock syndrome-like presence. 3 A. Yes. 4 Q. What is it? 5 A. I think when you have a beta strep infection as 6 measured by sepsis or bacteremia, which is really 7 how it's measured, then you have a blood-borne 8 infection, and when you're talking about toxic 9 shock syndrome, you're talking about a loss of 10 vital signs, and that's as a result of the toxins 11 that are released rapidly from the beta strep and 12 relate to the essence of the disease itself. 13 Q. There are different strains, are there not, of 14 group A strep? 15 A. Yes. 16 Q. Do all strains, if you know, release toxin? 17 A. I don't know. 18 Q. To what extent does the immune system of the host 19 play a role in the ultimate development of a 20 toxic shock-like syndrome as opposed to a group A 21 strep infection? 22 A. Well, you can have -- are you asking me how does 23 the host response effect -- what occurs in terms 24 of the outcome? 25 Q. Yes. 20 1 A. You would have a varying picture based upon some 2 of the specific toxins and their immunogenicity. 3 I don't know specifically, but I wouldn't be 4 surprised if there was a range of reactions. 5 Q. Is it common or uncommon for a patient who 6 develops a group A strep infection in the 7 postpartum era to ultimately develop a toxic 8 shock-like syndrome? 9 A. It would depend on what you mean by common. 10 Q. Common or uncommon? 11 A. I can't answer that. It's not specific enough. 12 Q. Does it happen often? 13 A. I don't think that you see positive blood 14 cultures, which really is the sine qua non of a 15 group A strep infection very commonly. 16 So I would say that they're an unusual 17 infection. They were more common before there 18 was antibiotics action than they are now. They 19 used to be the classic childbirth fever. So I 20 would say a small subset of the bacteremias would 21 then have toxic group A cultures. 22 Q. Are you aware of the patients in the postpartum 23 era who develop infection, if those infections 24 manifest from group A strep? 25 A. Of all the patients, if I understand the 21 1 question, if all the patients who have puerperal 2 sepsis have postpartum febrile morbidity by that 3 definition? 4 Q. Yes. 5 A. I would say a minority. 6 Q. When you say a minority, can you classify it or 7 quantify it? 8 A. I would estimate it at 10 percent. 9 Q. So the puer peral infections that develop, 10 approximately 10 percent of those in your opinion 11 develop as a result of the presence of group A 12 strep? 13 A. Beta streptococcal, which that would include. 14 Q. That's group A and B? 15 A. I'm sorry, they would be streptococcal. 16 Q. What I'm interested in is how many of those 17 patients who develop an infection in the 18 postpartum era have their infection caused as a 19 direct result of only group A, not both. 20 A. Group A, a fraction of that. 21 Q. A fraction of 10 percent? 22 A. I think so. 23 Q. When you say a fraction, would that be less than 24 1 percent, greater than 1 percent if you know? 25 A. I don't know. 22 1 Q. Out of the fraction of individual patients who 2 develop a puerperal infection as a direct result 3 of the presence of group A strep, how many of 4 those patients go on to develop the toxic 5 shock-like syndrome? 6 A. Of the patients who have group A strep in the 7 postpartum period, which is a small number, how 8 many of those develop toxic shock syndrome? 9 Q. Yes. 10 A. A fraction of that, I don't know the exact 11 number. 12 Q. Have you read any studies, have you been to any 13 meetings where that phenomena has actually been 14 discussed? 15 A. Yes. 16 Q. Okay. First of all, have you reviewed studies? 17 A. No. 18 Q. So the information that you would possess would 19 be based upon what you've heard at meetings? 20 A. And by experience in managing a lot of 21 pregnancies over the years. 22 Q. In your experience in your 25 plus years, you 23 have only seen two patients who have developed a 24 group A strep infection in the postpartum era? 25 A. We've only identified two patients. 23 1 Q. Identified, that's a better way to put it. 2 A. We've seen many patients who have had different 3 types of infections that we never identified by 4 blood culture, which is what I would take to be 5 the real identification. So I don't know how 6 many I have seen. 7 I have, I can think of the two that had the 8 spiking temperatures. So I would say, yes, some 9 small number of patients in 20 plus years of a 10 pretty busy practice. 11 Q. Is there a more rapid progression of the 12 infection with group A strep as opposed to, for 13 instance, group B? 14 A. I would say that group B strep has early and late 15 forms, is primarily a problem for the neonate. I 16 would think group A would be based on my 17 experience and education and those type of things 18 would be a much quicker type of infection in 19 terms of how it would manifest itself, but I 20 don't know specifically. I can't give you the 21 specific data. 22 Q. Are there certain manifestations of group A strep 23 infections that are different for instance than 24 group B? 25 A. I don't think I could tell you the difference 24 1 between A and B. I could tell you that 2 streptococcal infections have X, Y and Z 3 characteristics, but I don't think I could tell 4 you which are the As and which are the Bs. 5 Q. Why don't you give me the breakdown. 6 A. Streptococcal infections are well recognized to 7 be related to very rapid onset of symptoms, 8 temperature. And interestingly enough, they're 9 also related with rashes and things like that, 10 skin manifestations. 11 The other issue is that because they have a 12 rapid, cause a rapid immune response that causes 13 a fever, they tend not to have much physical 14 findings. And it's kind of important in this 15 case where that's an important issue in terms of 16 whether the patient manifested on a pelvic exam. 17 Certainly in reviewing all of the 18 documentation in this case at least after the 19 fact, what very much strikes out was that the 20 patient didn't have signs and symptoms of classic 21 three-day endometritis. This was much more a 22 case of a rapid onset type infection consistent 23 with a streptococcal infection. 24 Q. So the lack of or absence of physical findings 25 should not dissuade the physician, for instance, 25 1 that there might very well be an infection from 2 group A or group B because it's not common to 3 have these physical findings? 4 A. Absolutely. And when I teach residents 5 postpartum care, the other is true, the absence 6 of findings and the presence of a significant or 7 high fever should lead one to suspect that that's 8 a possibility. 9 Q. And what do you define a high fever as? 10 A. A high fever? 11 Q. That's the term you just used. 12 A. I think that if we look at febrile morbidity, if 13 we look past the classic old definition, the 14 current understanding I have of it is it's 15 greater than 101.5 Fahrenheit orally, and I think 16 that's changed over the last 20 years too. 17 I think that previous to that a high 18 temperature would have been called more than 102, 19 but I think in the last 10 or 15 years based on 20 what I understand from the literature, that those 21 that are the experts in infectious disease, 22 particularly with regard to the administration of 23 antibiotics, would look for a lower temperature, 24 and I think the current accepted standard of a 25 high temperature is 101.5. 26 1 Q. And when you use the term high temperature, is 2 that consistent or does that correlate with the 3 definition of fever? 4 A. Well, I think that -- 5 Q. Or do you have two different definitions, one for 6 high temperature and the other for fever? 7 A. In a case such as this, febrile morbidity which 8 is an old index of morbidity in the 9 preantibiotics era, defined postpartum fever 10 after the first 24 hours. It didn't mention 11 anything about the first 24 hours, it excluded 12 it. And my understanding is that the dogma for 13 many years was a temperature of 100.4 after the 14 first 24 hours, four hours apart are an index of 15 the morbidity of the mother related to an 16 increasing incidence of postpartum infection. 17 Conversely, that definition doesn't say 18 anything about how to -- what the standard might 19 be in the first 24 hours. It only says what the 20 standard is after the first 24 hours. I would 21 say that's the generally accepted definition of a 22 temperature is 100.4 or greater. 23 Q. After the first 24 hours? 24 A. Or in general in medicine. Whether we're talking 25 about internal medicine or pediatrics or other 27 1 things, 100.4. We look at patients that are 2 postsurgical or post delivery a little 3 differently, because we expect some low-grade 4 temperature responses in response to the 5 manipulations that the patients have had. So 6 there are some differences. 7 Q. Following the delivery when would you anticipate 8 or expect the temperature to rise? 9 A. I would expect the temperature to fall after 10 delivery. Very commonly after delivery patients 11 have postpartum shaking because of hypothermia, 12 so the temperature generally falls, not rises. 13 Q. You just talked about the manipulation that takes 14 place. 15 A. During, right. 16 Q. And I would presume, correct me if I'm wrong, 17 that the manipulations can cause inflammatory 18 responses which can cause catecholamines to be 19 released which will then have an impact on the 20 body temperature, am I correct? 21 A. That can happen. 22 Q. So if that does occur, when would you expect then 23 the temperature to hit, let's say, it's apex? 24 A. I don't know if you could say there's a general, 25 there's really a general rule to that. 28 1 Temperature is also based, has very significant 2 diurnal information, due to endogenous 3 catecholamines and steroids. 4 So people tend to have more temperatures in 5 the early afternoon and evening than they do in 6 the morning for example. So I'm not sure based 7 on delivering babies at all hours, when it is I 8 would expect the rise. 9 I think my point is that a temperature rise 10 up to 100.4 in the first 24 hours would strike me 11 as -- or up to 100.3 before it gets to 100.4 12 means it could be related to labor and delivery, 13 the length of ruptured membranes, the number of 14 pelvic exams, whether there was internal 15 monitoring, all those other factors we look at. 16 Once a temperature reaches 100.4 I would have 17 greater concern, and once it reaches 100.5 then 18 it's a different category, it's a high 19 temperature. I wouldn't expect that to be 20 related to the processes unless there was some 21 pathology, something going on that shouldn't be. 22 Q. Of course in this case we know there was a 23 temperature obtained at 1925, and that was 101.6? 24 A. Yes, sir. 25 Q. Can you tell me whether the elevated temperature 29 1 of 101.6 in this particular instance is 2 pathonomic of an infection, or are there other 3 manifestations that could have existed that would 4 have caused the rise in temperature? 5 A. Well, pathonomic I don't think you would say. 6 Would you say more likely than not? Given 7 the circumstances, I would say given that the 8 patient had a Foley catheter in place, given 9 there was uterine atony after delivery, given the 10 white blood cell count showed a left shift when 11 analyzed, I would say it's more likely than not 12 that that temperature spike at 1925 that you're 13 referring to reflected febrile morbidity that was 14 infection. 15 Q. It may be more likely than not, which leaves 16 other parameters. What else could it have been 17 attributed to? 18 A. A patient having an infection, having a 19 temperature of 101.6 after delivery could have a 20 drug reaction, could have an anesthesia 21 complication. Occasionally a patient who 22 develops a temperature has a sterile hematoma and 23 develops febrile response on the basis of a blood 24 clot. 25 My guess is there are rare pulmonary embolic 30 1 types, pulmonic embolus might have a temperature 2 that might be higher rather than lower. They're 3 certainly much less common than infection, but 4 depending on the individual circumstances might 5 be more common or less common in a specific case. 6 Q. Well, when you are faced with a quandary, and 7 that is that there's a temperature of 101.6, and 8 you're unsure of what the genesis of the 9 elevation is, do you as a physician with your 10 patients empirically treat a patient with 11 antibiotics before attempting to rule out other 12 manifestations? 13 A. I think as I -- the other manifestations I just 14 mentioned are extremely uncommon, and there are 15 other pieces of the vital signs that speak to 16 pulmonic process or a hematoma, there are signs 17 and symptoms. 18 And so I think in a case, in a specific case 19 like this where those other signs and symptoms 20 are absent after obtaining a urine culture and 21 urinalysis, I would start antibiotics, and I 22 believe that's what a reasonable and prudent 23 doctor would do. 24 Because these other possibilities, albeit 25 important, are so much less likely in the 31 1 differential diagnosis. 2 Q. And how long would you anticipate or expect a 3 urinalysis to take before the information is 4 brought back to you or provided to you? 5 A. That's a very quick turn around for a urinalysis 6 if you were going to use that as a basis for 7 treating. Certainly half an hour or not more 8 than that I wouldn't expect. Urinalysis isn't a 9 complex test. 10 Q. So what you're saying is that you would not 11 immediately commence antibiotics therapy, because 12 there are certain other underlying causes of the 13 temperature, but you would anticipate or at least 14 you would expect to get or order certain tests to 15 determine what the cause might be? 16 A. I think I didn't say it clearly. 17 Q. I think you did and I'm just asking you a 18 different question. 19 A. All right. I would personally order a UCA&S and 20 start treatment, and I think that's what the 21 standard is. I would start them on that 22 empirically because of the dwelling catheter. We 23 sometimes, in dwelling catheters, use antibiotics 24 prophylactically. 25 Q. And what antibiotics would you order? 32 1 A. If the patient had no allergy, I would give her 2 ampicillin. 3 Q. What dosage? 4 A. One gram every six hours would be a minor 5 treatment. 6 Q. Group A strep, is that an anaerobic or an 7 aerobic? 8 A. I think its primarily an aerobic. 9 Q. And if it's an aerobic, it would give off an 10 exotoxin, would it not, if you know? And if you 11 don't, I will move on. 12 A. I don't remember which gives of exotoxin or 13 endotoxin, you got me. 14 Q. Let's just talk about infection just for a 15 moment. Is it your belief that Mrs. Williams had 16 a uterine infection? Or let me ask it a 17 different way. What do you believe the cause of 18 the infection was? 19 A. Ruptured membranes, labor, it's normal flora in 20 some women to have a group A strep. 21 Q. Do you believe that Mrs. Williams was a carrier 22 of group A strep where the group A strep was 23 actually in the vagina as opposed to what is 24 commonly found in the upper respiratory tract? 25 A. Well, all we know in this case is that she didn't 33 1 carry group B strep, and so I don't know. Strep 2 is a colonizing organism, it's common, and 3 there's no evidence one way or the other to 4 answer the question. 5 Q. Okay. Do you believe that following the rupture 6 of membranes that there was the development of an 7 ascending inflammation? 8 A. Well, I think there's ascending inflammation, 9 that's the mechanism of how labor occurs. So I 10 think that occurred here. Whether or not and to 11 what extent there was an infection is very hard 12 to know. 13 The first white blood cell count done after 14 delivery was 17,000, and normally when a white 15 blood cell count is greater than 15,000, we 16 accept that as presumptive evidence that there's 17 an infection. But certainly in somebody who's 18 immediately postpartum, maybe 17,000 would be 19 okay if the differential in the cells involved 20 were the normal constituents of a white blood 21 cell count. So there's no way to know. 22 The white blood cell count is a little 23 elevated, we don't know if there was infection. 24 We know there should be inflammation, because 25 that's how labor is initiated. So that's all I 34 1 can say. There's no other symptomatology. 2 We could say, we could infer that because she 3 had a postpartum hemorrhage, she had infection. 4 That's certainly a common reason for atony. But 5 she also had Indocin induction and also got 6 magnesium sulfate. So both of those are related. 7 So I can't make a specific diagnosis based on 8 the information that's there. 9 Q. Do you believe there's any evidence in this 10 record that would support the finding of an 11 infection between the time of delivery until 12 approximately 1515 in the afternoon of June 25th? 13 A. 1515? 14 Q. Yes. 15 A. Let me check my time line. 16 Q. Yes, if you would please. 17 A. There's no evidence of any problem with this 18 patient until 1550, and your question was 1515? 19 Q. That is correct. 20 A. So I don't see anything, or I didn't see anything 21 suggesting that there was any potential for or a 22 very strong inference or indicator prior to that. 23 Q. So you would accept the proposition that the 24 standard of care was met, or there were no 25 deviations from the accepted standards of care 35 1 between the time of delivery and at least 1515, 2 correct? 3 A. Yes. 4 Q. Okay. Now, you say, at least according to your 5 time line, that there was a problem at 1550? 6 A. Yes, sir. 7 Q. And would that be the shaking? 8 A. Yes. 9 Q. And the chills? 10 A. That was the shaking and the shivering that was 11 described in the nursing notes. 12 Q. And what do you ascribe the shaking and the 13 shivering to? 14 A. Well, I think in retrospect, you can ascribe that 15 to bacteremia and the seating of the infection, 16 in retrospect. 17 Q. That's acceptable. Now, in retrospect, where do 18 you believe the bacteria seated? 19 A. It seated from the uterus which was immediately 20 after childbirth, or from the vagina which is a 21 very vascular place during contractions. When 22 the uterus contracts, that's where the egress is 23 after the contraction as the pressure change. 24 No doubt she was cramping and contracting 25 after she delivered, which is normal, she had a 36 1 lochial flow. So she had a normal postpartum 2 period in that response. They think it's, in 3 retrospect, very concerning that she had a 4 shaking chill or shaking and shivering at 1550, 5 but as I said before, I think that's in 6 retrospect knowing what the diagnosis is. 7 Q. Okay. Now, at this point in time, it is your 8 belief that she manifested, again in retrospect, 9 and I'll accept that, a bacteremia at 1550? 10 A. Yes. 11 Q. Now, what is the half life of group A beta 12 hemolytic strep? 13 A. Under what circumstance? 14 Q. In circumstances in which it is now in the 15 circulation? 16 A. That's an interesting question. I don't know how 17 to answer that. I would guess that it's very 18 short. 19 Q. When you say very short, exactly what do you 20 mean? 21 A. I would think minutes. 22 Q. Now, what is the survival rate, if you know, or 23 the survival time of this type of bacteria once 24 it hits the circulation? 25 A. Well, these are organisms that love to love 37 1 blood, that's why they're hemolytic, but I don't 2 know specifically. You're into an area of 3 expertise that I can't give you an expert answer 4 in. 5 Q. That's fine. I guess I'm asking this specific 6 question because of the clinical presentation at 7 1550 and the shaking and the shivering, and I'm 8 questioning whether or not you have an opinion 9 whether the shaking and the shivering was caused 10 as a direct result of a cell mediated death 11 releasing toxins into the blood stream? 12 A. I understand. I don't have an opinion. I'm not 13 an expert enough to be able to give you an 14 opinion there. 15 Q. What is the manifestation, if you know, from a 16 bacteremia that causes the shaking and the 17 shivering? 18 A. What is the manifest? 19 Q. What about the bacteria causes that? 20 A. Well, etiologically something insights -- there 21 is a temperature sensor response and the body 22 understands it has to make some heat. That's 23 what causes the shaking and the shivering, and so 24 there's some product at some level, and I don't 25 know what, that causes a signal to be sent to say 38 1 make heat. There is a temperature sensitive 2 response there, and that's what the shivering is 3 for. I don't know specifically. 4 Q. Is it also a direct result of endogenous 5 catecholamine release? 6 A. But again, it's triggered in response to the 7 temperature. That's a mediator, could be 8 catecholamine. 9 Q. So you can't tell me whether at 1550 based upon 10 her clinical presentation she already was 11 demonstrating release of toxins into her 12 circulation, you can't say one way or the other? 13 A. No, I can't. 14 Q. Presuming for the moment, hypothetically, that 15 there is toxin release into the blood stream at 16 1550, and the first manifestation is the shaking 17 and the shivering, what else would you anticipate 18 or expect to follow that? 19 A. I would expect it to be followed by a temperature 20 spike if it was particularly a streptococcal 21 infection, I would expect a significant 22 temperature spike. 23 Q. Which is what happened at 1925? 24 A. Which is several hours down the road. 25 Q. Is that within the anticipated time frame with a 39 1 streptococcal infection? 2 A. I would think so. 3 Q. Okay. What else would you anticipate? 4 A. I would then expect that absent any treatments to 5 affect the temperature, that's without any 6 antipyretics or ice packs or anything, several 7 hours later you would see a repeat, and the 8 process would continue until antibiotics were 9 started to treat the bacteremia and thus the 10 cycle of the catecholamines. 11 Q. Can you tell me based upon any of these records, 12 including the autopsy, whether the endometrial 13 lining was affected in any way with the presence 14 of bacteria? And the way to answer that, sir, is 15 really to look at the very last page of the -- 16 let's see if you have that. That's not the one. 17 I'll show you. 18 A. Here I have it. It's a parametrial infection. 19 Page 4. 20 Q. And what do you ascribe that to? 21 A. There's infection of the lymphatic tissue that 22 goes along the sides of the uterus. And then 23 there was seating from there into the blood 24 stream, it's parametrial. 25 Q. And what do you believe the neutrophilic 40 1 infiltration represents in the endometrial 2 surface that's also on that same page? 3 A. I don't know if it's significant or not. 4 Q. Do you know whether or not that is consistent 5 with the presence of an infection? 6 A. Consistent with, I think it's consistent with 7 delivery. 8 Q. Now, if you take a look again at Page 4, and I 9 apologize, take a look again under the heading of 10 Uterus, and you will see quote, "parametrial soft 11 tissue with venous channels with platelet-fibrin 12 thrombi and necrotic debris"? 13 A. Yes. 14 Q. Do you normally see necrotic debris in the uterus 15 following delivery? 16 A. We don't normally see the uterus after delivery. 17 We would only see a uterus that we did a 18 hysterectomy on or had an autopsy on. So there's 19 no way to answer that fairly. 20 Q. Have you reviewed any literature or come across 21 any records that have indicated that it's a 22 common finding to find necrotic debris in the 23 uterus following a delivery? 24 A. I wouldn't find that surprising. 25 Q. Why not? 41 1 A. Because there's a lot of debris after the length 2 of the process of birth which is basically 3 triggered by inflammation and has massive muscle 4 and tissue work, and so there's a lot of broken 5 cells, disorientation of tissue, so it wouldn't 6 surprise me. 7 Q. When you talk about disorientation of tissue, are 8 you talking about breakage of the small vessels 9 or interruption of the small vessels in the 10 endometrial lining so that there is no further 11 blood flow which will ultimately cause necrosis? 12 A. I mean, that's consistent. 13 Q. My next question then is once the placenta is 14 removed, to what extent is there an interruption 15 of blood flow to the endometrial wall in the 16 place in which the placenta was located? 17 A. The placental site? 18 Q. Yes. 19 A. Well, the patient would bleed to death after 20 every delivery if the myometrial wall didn't 21 contract because the blood supply to the 22 placental site does it at right angles through 23 the myometrial wall. So to keep every woman that 24 delivers from bleeding to death, the uterus 25 clamps down after the placenta separates, and 42 1 that obstructs the flow. 2 Q. Now, if it obstructs the flow, and if there are 3 bacteria within the area in which the placenta 4 has now been removed, to what extent then could 5 antibiotics be delivered to that target site? 6 A. The uterus doesn't contract and stay contracted 7 ad lib. It contracts on and off just like it did 8 during labor and delivery, so there's contraction 9 and relaxation. So the delivery of antibiotics 10 to that site would occur as the contraction 11 released, the same as the lochial flow is 12 partially related to the contractility and 13 release. 14 So there's not just contraction, there's 15 contraction and release. So I would think that 16 the antibiotics, particularly antibiotics that 17 have good tissue penetration, particularly 18 ampicillin, which we always use in this setting 19 postpartum, would have, would reach the areas 20 that would be important. 21 Q. And the fact of the matter is, you can't tell me, 22 based at least on microscopic description of the 23 uterus, the size of the area that contains 24 necrotic debris, correct? 25 A. It doesn't mention it. 43 1 Q. By the way, it is your belief in this case that 2 the departure of care as it relates specifically 3 to Dr. Hahn, who I represent, did not occur until 4 1:00 in the morning, is that correct? 5 A. Well, I think it's unclear in my report, the 6 departure from the standard of care, if you look 7 at page -- is that my report? 8 Q. Yes, it is. 9 A. I think that as I reread it, if you look at the 10 paragraph I guess Paragraph 3 on the third line, 11 it should say between 1925 and 0045. All these 12 events didn't occur at 1925. As I was reading 13 that on the plane today, I realized it should say 14 between 1925 and 0045 when Dr. Hahn had received 15 his eventual phone call. 16 Q. Right. However, what you have said before that 17 is, and I will quote, "In my opinion the standard 18 of care for a patient like Mrs. Williams was 19 violated by Dr. Hsieh and Hahn at 0100 on 6/26/99 20 about 16-and-a-half hours postpartum." 21 A. Right. 22 Q. So even though at line three you indicate that 23 the following occurred between 1925 and 0045, the 24 fact of the matter is, it's your opinion that the 25 standard of care was not breached until that 44 1 point in time as you have set forth in your 2 report? 3 MR. PARIS: Objection. 4 Q. You may answer. 5 A. It's my opinion that in order to be fair as to 6 how to treat a patient, that all the factors that 7 occurred between 1925 and 0045 had to be taken 8 into consideration, and that's why it didn't say 9 at a particular time. 10 What 0100 means there is that that was the 11 last point of time at which, that was the 12 farthest -- I'm sorry, it's not a very articulate 13 way to put it. 14 That was the last point in time in which 15 treatment had to have been instituted with 16 antibiotics to comply with the standard of care. 17 That's what that sentence means. 18 Q. Let's take 0100 for this question. Is it your 19 belief that had antibiotics been administered 20 prior to 0100 that it would have had an effect on 21 Mrs. Williams, and that she would have lived? 22 A. Yes. 23 Q. Is it also your belief, conversely, that 24 administering antibiotics subsequent or after 25 0100 would not have had any impact on her 45 1 survivability? 2 A. I think it's more fair to say that it might or 3 might not have. 4 Q. At that point you can't say it's greater than 50 5 percent that it would have helped or that it's 6 greater than 50 percent that it would not have 7 helped? 8 MR. PARIS: What time? 9 MR. BONEZZI: 0100. 10 THE WITNESS: Can I hear that 11 again. This is important. 12 - - - - 13 (Thereupon, the requested portion of 14 the record was read by the Notary.) 15 - - - - 16 A. My opinion is that had antibiotics, which were 17 clearly indicated, been administered prior to 18 0100, it's more likely than not that the patient 19 would have survived. After 0100 there's no way I 20 could predict what would happen. That's my 21 opinion, and you can interpret the pieces from 22 there. That's what I'm trying to say. 23 Q. Can we turn to Page 1 of your report, please? 24 A. Certainly. 25 Q. You have reviewed, I would presume, the testimony 46 1 of Mr. Williams and Mrs. Williams' mother, have 2 you not? 3 MR. PARIS: No, they were not 4 sent. 5 Q. So it would be unfair to ask you questions as it 6 relates to their testimony? 7 A. And I appreciate that on your part. 8 MR. BONEZZI: Off the record. 9 - - - - 10 (Thereupon, a discussion was had off 11 the record.) 12 - - - - 13 MR. BONEZZI: Back on the record. 14 Q. If the shaking and the shivering was caused as a 15 result of toxin release, regardless of if it's 16 endotoxin or exotoxin, would you anticipate or 17 expect the shaking and the shivering to continue 18 for a period of time? 19 A. I think the shaking and the shivering are in 20 response to the temperature spike. This patient 21 received antipyretics and antipyretic treatment, 22 so the fact that she didn't have a reoccurring 23 shaking and shivering might be because her 24 temperature didn't spike high enough because of 25 the Tylenol and the ice packs. 47 1 Q. When did she receive the Tylenol with Codeine? 2 A. 1700 and 2100. 3 Q. How long is the half life of Tylenol? Now, we 4 know it's an antipyretic, and it will 5 artificially depress rise in temperature? 6 A. Right. 7 Q. However, it doesn't last forever. 8 A. No, I wouldn't think so. I don't know exactly. 9 Q. When you give an antipyretic to a patient in an 10 attempt to control the temperature, first of all, 11 when do you anticipate as a physician that there 12 will be impact on that temperature? 13 A. As a practicing physician, I avoid giving 14 antipyretics because the temperature is part of 15 the manifestations of how the disease is fought. 16 So unless the patient is incredibly uncomfortable 17 and particularly before antibiotics are 18 administered, I don't personally teach or use 19 antipyretics unless there's some other very 20 unusual set of circumstances. 21 Q. That was a poor question, because what I actually 22 meant is that you can give Tylenol with Codeine 23 or some other type of analgesic that as a 24 secondary effect acts as an antipyretic, however 25 the reason you're giving it is to control the 48 1 pain of the patient. 2 A. Sure, Motrin is the example. 3 Q. And in this case she was not given the Tylenol 4 with Codeine for purposes of controlling the 5 temperature, she was given the Tylenol as a 6 direct response to her complaint of pain, 7 correct? 8 A. Yes. 9 Q. And in that situation, if in fact you as a 10 practicing physician do that, when would you 11 anticipate from a secondary effect that it would 12 have an impact on the temperature? 13 A. I think as I just said, that's not a practice 14 that I employ. 15 Q. Even though you don't, I know that you're 16 well-read and well-schooled and well-educated and 17 well-experienced, so you would know when there 18 would be some type of effect. When would it be 19 regardless of whether you do it or not? 20 A. Flattery will get you nowhere. 21 Q. I still want the answer. 22 A. I think over a relatively short period of time, 23 hour or 90 minutes. 24 Q. And when would you anticipate the peak effect to 25 be reached? 49 1 A. Somewhere within, I don't know what the curve 2 would look like of the metabolism of 3 acetylsalicylic acid and it's by-products, 4 although it's liver and not renal cleared. So it 5 would be longer. I think 60 minutes. 6 Q. It would reach it's zenith? 7 A. It's secondary clinical effect on the 8 temperature, which is what you asked. 9 Q. Yes. 10 A. I think between 30 and 60 minutes. So 60 is my 11 answer. 12 Q. What would -- what were her temperatures, if you 13 know at 1600 or what was her temperature at 1600? 14 A. Her temperature at 1615 was 99.7. 15 Q. And that would fall within the range of 16 anticipation for a postpartum patient within the 17 first 24 hours, correct? 18 A. At 1615? 19 Q. Yes, that's 4:15 in the afternoon. 20 A. That's before she got the Tylenol. 21 Q. That is correct. 22 A. Yes. 23 Q. What do you attribute her temperature spike to? 24 A. I think that you're really, you don't have the 25 exact answer, and it's frustrating here. You're 50 1 talking about her temperature spike at 1925? 2 Q. Yes. 3 A. I would say in retrospect we would have to assign 4 it to the group A strep infection, although I 5 think when you have a catheter in place, even 6 with the culture report that I saw, I'm not sure 7 I believe it anyhow. 8 What's important in this particular clinical 9 circumstance in my opinion is the temperature 10 spike not so much the cause. I don't think it's 11 related to any of the other very rare and unusual 12 causes. Again, it's suspicious because of it's 13 elevation, the degree. But I couldn't tell you 14 that I know for sure what the cause is. 15 Q. In other words, was Dr. Hahn provided the 16 information relative to temperature spike? 17 A. Yes, he was. 18 Q. And in response to that, he ordered, if I'm not 19 mistaken CBC? 20 A. Yes, he did. 21 Q. And a C&S or urinalysis, correct? 22 A. He ordered all of that. 23 Q. Was that appropriate? 24 A. Yes, when he was called at 2024, that was his 25 response. 51 1 Q. And was that appropriate? 2 A. That's part of the response that would be 3 appropriate, yes. 4 Q. And I presume that the other response, based upon 5 your earlier testimony, was that not only should 6 he have done that, in your opinion, but he should 7 have also commenced antibiotic coverage that 8 would have been the 1 gram of ampicillin? 9 A. After he obtained his culture given that the 10 patient had a catheter and a temperature more 11 than 101.5, then I think the standard of care and 12 the weight of prevailing clinicals called for a 13 gram of ampicillin. She didn't have allergy and 14 she had a cause, the catheter. 15 Q. And the ampicillin 1 gram would be started or 16 administered, according to your opinion, after 17 the culture sensitivity results were provided to 18 him, correct? 19 A. No, it would be after the samples were obtained, 20 then you start the treatment. That's how we 21 teach people to do it. 22 Q. And at this point in time, 2024, 2030, do you 23 believe that this particular patient had any 24 endotoxin or exotoxin release? 25 A. At that particular time? 52 1 Q. Yes, by that time? 2 A. Had she ever been exposed to any exotoxin? 3 Q. Yes. 4 A. I can't answer that question. 5 Q. Okay. She had blurred vision at some point, did 6 she not? 7 A. The next morning. 8 Q. Did she have any that night? 9 A. I seem to remember that she may have. It was 10 much more striking to me the next morning. 11 Q. Did she ever make any complaints relative to 12 blurred vision? 13 A. Please let me check. 14 Q. Take your time. 15 A. Yes, blurred vision 1555. 16 Q. What do you attribute that to? 17 A. Well, at 1555 she had received -- 18 MR. PARIS: Does that say denies 19 headache and blurred vision? 20 MS. SMALL: I thought she had the 21 blurred vision when Dr. Shagawat saw her or 22 earlier. 23 MR. BONEZZI: I take it that was 24 an objection. 25 MR. PARIS: A speaking objection 53 1 to be precise. You might want to look at 2 5:30 p.m. 3 A. 1730? 4 Q. Yes. 5 A. Where is it? 6 MR. PARIS: I think it's in 7 Shagawat's order or progress note. 8 MR. BONEZZI: Page 188. 9 A. Okay. This is Dr. Shagawat who did the delivery. 10 Q. Say that again. 11 A. This is Dr. Shagawat who performed the delivery 12 on this patient earlier in the day. 13 Q. That is correct. 14 A. And it says, "Tired, blurred vision, groggy." 15 Q. What do you ascribe the blurred vision to, and 16 I'll even accept your hindsight beliefs. 17 A. Well, I think that here, she described zero 18 reflexes in her deep tendon reflexes in the lower 19 extremities. Do you see the next line. 20 So I would say it's possible that of all the 21 different things that could cause a patient to 22 have some blurred vision, that the magnesium 23 sulfate may have been interfering with her vision 24 at that point in time. 25 Q. Other than the magnesium sulfate, what else could 54 1 have caused the blurry vision? 2 A. I think the next morning, for example, the 3 blurred vision she had was a much more likely 4 concomitant to her low blood pressure. You might 5 get a description of blurry vision from 6 hypotension or a sensation or description of 7 blurred vision you might get, I guess it could be 8 a manifestation of sepsis. Sepsis can cause 9 almost anything. 10 Q. And one of the manifestations of sepsis as we 11 both will agree is hypotension? 12 A. Absolutely. 13 Q. Was she ever hypotensive in the afternoon or 14 evening of June 25th? 15 A. I think she was hypotensive towards the early 16 morning of the 26th. I don't think she 17 manifested any blood pressures of less than 60 18 diastolic until that point in time. 19 Q. What is your definition of hypotension? 20 A. That's why I answered it that way. Less than 90 21 over 60 is the generally accepted definition and 22 one I would agree with. 23 Q. And are you aware of whether or not she 24 demonstrated any aspects of hypotension in the 25 afternoon or evening of June 25th? 55 1 A. Let me just check. I don't believe so, but let 2 me check. 3 MR. PARIS: You want to point it 4 out to him, Bill. Are you talking about 5 one isolated reading? 6 Q. There's a transient. 7 MR. PARIS: It's at 3:50 p.m. when 8 she had the shaking and shivering. 9 You don't mind if I speak now, do 10 you, Bill. 11 A. It says right here that her blood pressure at the 12 time of shaking and shivering was 125 over 103 on 13 Page 24. 14 Q. Um-hum. But there was another blood pressure -- 15 let me ask it this way so we don't waste any 16 time. 17 I want you to assume for purposes of this 18 question that there was at least one blood 19 pressure that would be within the range of 20 hypotension. 21 MR. PARIS: It was 95 over 78. 22 Q. Okay. I'll rephrase the question. What do you 23 believe the drop in the blood pressure to 95 24 systolic would represent in hindsight in this 25 patient? 56 1 A. Well, this is a patient who just had a vaginal 2 delivery with a lot of blood loss described as 3 atony, who's now on magnesium sulfate. And 4 postpartum you see patients lower their blood 5 pressure to some extent on that basis either 6 hypovolemic or just postpartum on that basis. 7 Somebody who had a blood pressure of 95 over 8 78 who previously had a blood pressure described 9 as high as 171 over 98, you know, that's a 10 troubling fall in blood pressure. 11 Q. That's a significant drop? 12 A. It's not hypotension, but a significant fall in 13 the blood pressure. 14 Q. And to what extent is that consistent with the 15 presence of an infection or the presence of 16 sepsis? 17 A. I don't think I would make a connection. 18 Q. Why not? 19 A. Because I wouldn't personally expect to make a 20 connection of sepsis and hypotension unless I had 21 less than a blood pressure of 90 over 60. 22 Q. But we have a patient who has -- strike that. 23 That blood pressure or a blood pressure of 90 24 over 60 which falls within the definition of 25 hypotension also is based upon a normal blood 57 1 pressure of we'll say 120 over 80 or 130 over 80, 2 correct? 3 A. Yes. 4 Q. And if you have a patient who is a hypertensive, 5 such as what she demonstrated here, and you have 6 a fall of the systolic down to 95? 7 A. Right. 8 Q. That even though it doesn't fit the definition of 9 hypotension certainly could be hypotension for 10 that particular patient? 11 MR. PARIS: Objection. 12 MS. SMALL: Objection. 13 A. It's certainly a fall in the blood pressure 14 that's significant. I just don't think we would 15 use the term hypotension. We would say there was 16 a dramatic fall in the blood pressure, and your 17 point about the relative change in the blood 18 pressure is well taken. The patient had 19 preeclampsia, that's what the disease is all 20 about, the relative change in blood pressure. 21 Q. However can you totally exclude the fact that the 22 blood pressure dropped as a direct relationship 23 to the presence of toxin in the blood stream? 24 A. No, I don't think I could. I don't think it's 25 likely that that occurred. 58 1 Q. But you can't exclude it, can you? 2 A. No, I can't exclude that it's possible. 3 Q. And you can't exclude the fact that her blurred 4 vision was also a manifestation of toxins within 5 the circulation? 6 A. The only thing I can say to both is that I would 7 think they would be unlikely. You're talking 8 about 1 in 100, and I would say I could exclude 9 them more likely than not, but I can't exclude 10 them to 0 as a cause, as an effect of the cause 11 of the toxin. 12 Q. You, I believe that you would agree with me that 13 each individual who has an infection, regardless 14 of the bacteria that's causing it, will manifest 15 different signs and symptoms depending upon their 16 immune system, depending upon the strain of the 17 organism, and depending upon the size of the 18 inocula, correct? 19 A. I would say that there are general responses we 20 expect from clostridia that are different than 21 beta strep, but there's a range of response 22 within the two that would be as you described. 23 Depending on the inocula, the age, the immune 24 system and other factors. 25 Q. And unfortunately we don't know what the size of 59 1 the inoculum was with this patient, do we? 2 A. No. 3 Q. We don't know what the strain is, do we? 4 A. Not to my knowledge. 5 Q. So it's very difficult to say one way or the 6 other what manifestations this particular patient 7 would exhibit without having some of those 8 questions answered? 9 A. But I think it's fair to say that it's not likely 10 that blurred vision was due to sepsis, and it's 11 not likely that that blood pressure was due to 12 septic shock. You can't exclude them, I agree, 13 but I don't think on the other hand it's not 14 likely that they were related either. 15 Q. But it's also not likely that a patient that 16 develops a postpartum infection will develop it 17 from a group A beta hemolytic strep that 18 ultimately results in a toxic shock-like 19 syndrome? 20 A. And death. 21 Q. And death, correct. 22 A. I agree. 23 Q. Other than commencing antibiotic coverage at 24 around 2020 or 2030 on the 25th, is there 25 anything else that you believe that Dr. Hahn 60 1 should have done before 1:00 in the morning? 2 A. Anything else Dr. Hahn should have done? 3 Q. Yes, sir. 4 A. I think that when the nurse, when Nurse Prokop 5 called him at 0030, given the complaints that and 6 the concerns she had, rather than ordering 7 ativan, which would be very unusual treatment, he 8 should have required the house officer to speak 9 with her, had a doctor meet with the patient. 10 I think that gets into the whole argument of 11 what Dr. Hsieh was doing there, I understand 12 that. But I think ordering ativan without 13 speaking to the doctor, without seeing the 14 patient himself or making a direct communication 15 there led to an incorrect treatment, presumably, 16 as I remember his deposition, on the basis that 17 her restlessness was due to magnesium sulfate if 18 I remember what he said. 19 And if somebody has restlessness on that 20 basis, you turn off the magnesium sulfate, you 21 don't give ativan. It's a sedative hypnotic drug 22 itself. So I would say that's the other point in 23 time in which I would have criticism before 0100. 24 Q. Now, I believe that the phone call was made, and 25 I may be incorrect, by this by Nurse Prokop not 61 1 at 0030 but at 0045. Now if you can follow me 2 for a moment. 3 Let's presume for the moment that a 4 discussion ensues between Dr. Hahn and Nurse 5 Prokop, and information is provided to Dr. Hahn, 6 and Dr. Hahn isn't really sure of what's going 7 on, so he suggests or recommends that Dr. Hsieh 8 see the patient. How much time do you believe 9 would have elapsed from the time of the request 10 at 0045, 0050 until Dr. Hsieh not only came to 11 the room, examined the patient and provided 12 information back to Dr. Hahn, how much time would 13 elapse? 14 A. Dr. Hsieh was there. 15 Q. In the room? 16 A. He was there at 0025. 17 Q. But was he in the room? 18 A. I don't know where he was exactly, but he clearly 19 couldn't have been very far away, and I think he 20 would have responded rather rapidly. 21 Q. Give me a minute, two minutes? 22 A. All right. 23 Q. So now an examination would have been conducted, 24 I presume that's what you would have anticipated, 25 correct? 62 1 A. If the question was did the patient have 2 restlessness on the basis of magnesium sulfate 3 toxicity, then I would expect him to go check for 4 magnesium sulfate toxicity. 5 Q. They would have been looking at the mag level? 6 A. Tapped the patient's tendons and looked for the 7 Achilles reflex, output, respiratory rate and her 8 pulse, all of which are easy to get, and by 9 looking at those factors, make the clinical 10 diagnosis and turn off the mag sulfate before you 11 get a serum level. 12 Q. How long does that take? 13 A. Five minutes. 14 Q. So we're up to 5 till 1:00 or before 1:00? 15 A. Yes. 16 Q. Is ampicillin on the floor? 17 A. Not in this hospital. 18 Q. So what would have to be done, ampicillin would 19 have to be requested through the pharmacy, 20 correct? 21 A. I don't know how they dispense the medications. 22 Q. Let's presume through the pharmacy. How much 23 time now do you anticipate from when the request 24 was made for ampicillin until the time that 25 ampicillin arrived on the floor? 63 1 A. That's assuming that Dr. Hsieh ordered it. 2 Q. Yes, this is all a presumption. 3 A. I don't know, a few minutes, half hour. 4 Q. Could even be an hour, right? 5 A. Unless it was ordered as an emergency, sure. 6 Q. Well, under this circumstance, would you order it 7 stat? 8 A. It would depend on what other information 9 Dr. Hsieh had. 10 Q. Whatever information is here in this record. 11 A. I think if Dr. Hsieh had examined the patient at 12 0025 and seen the white blood cell count or acted 13 on the white blood cell count and the 14 differential, then a much more emergent situation 15 would have been diagnosed that much sooner and 16 the patient's care would have been that much 17 earlier and quicker. To say exactly how many 18 minutes it was, that's not real science and I'm 19 not going to say that. 20 But the fact is if he had to wait to 0045, 21 that's 20 minutes later than his note is written, 22 but he did have the hematocrit and the hemoglobin 23 and apparently the nurse tore the piece of paper 24 off the machine and said here's the CBC results. 25 So he should have had the white blood cell 64 1 count, and I don't know if he would have had the 2 differential or not, because I don't know what's 3 printed on that piece of paper. The one in the 4 chart has the whole thing printed, and there was 5 a manual differential, so I don't know if it 6 would have been there at the same time or not. 7 You can't tell from that. 8 But with the white cell count at 16,000 and 9 the patient having a temperature and then the 10 white cell count driving that precipitously, I 11 agree that Dr. Hahn, that even a first year 12 medical student would know there was something 13 amazingly wrong in this set of circumstances, and 14 there should have been a definitive treatment. 15 Q. You would agree with me even the ampicillin in 16 the best scenario would not have been ordered and 17 administered until after 1:00 in the morning? 18 A. I think it should have been ordered and 19 administered by 2100. 20 Q. I appreciate that, but we have already gone 21 beyond that, so under the scenario of the 22 questions I'm asking, and that is the information 23 provided to Dr. Hahn and Dr. Hahn, like I said, 24 requesting Dr. Hsieh to look at the patient. 25 Under that hypothetical scenario, under the 65 1 best of circumstances, if everything would have 2 been carried out in the most perfect of 3 situations, the ampicillin still would not have 4 been administered until after 1:00 and probably 5 closer to 1:30 quarter to 2:00, would you agree? 6 A. I would agree you don't know if indeed the whole 7 chain of orders and carrying out the medication 8 only started at approximately 0045, then it might 9 have taken another, how long it would have taken, 10 half hour, 45 minutes. There's no way to know 11 exactly how long it would have taken. 12 Q. And presume that is in fact accurate taking one 13 of your earlier statements to heart, at that 14 point in time, you don't know whether or not it 15 would have provided a benefit for this particular 16 patient, correct? 17 A. Right, I can't say to a degree of medical 18 certainty. 19 Q. Okay. 20 THE WITNESS: Can we take a break. 21 MR. BONEZZI: Sure. 22 - - - - 23 (Thereupon, a recess was had.) 24 - - - - 25 (Thereupon, Defendant's Exhibit 6 66 1 was marked for purposes of identification.) 2 - - - - 3 Q. You had spoken before about the drop in the white 4 count from approximately 17,000, 16,000, 17,000 5 to 4.6? 6 A. Yes. 7 Q. Now, the white count of 4.6 was recognized at 8 about 2330 on June 25th. In other words it was 9 known by that point in time? 10 A. Well, the blood was drawn at 2346, but the 11 results of the rest of the CBC were in 12 Dr. Hsieh's note at 0025. So the result was 13 there. 14 Q. My question is very simple, what do you attribute 15 the significant drop to? 16 A. Oh, I think that's the onset of sepsis. 17 Q. Okay. Now, the onset of sepsis would include the 18 release of toxins? 19 A. I think you should, you have all the infectious 20 disease players in the world here in this case. 21 The patient's white blood cell count drops 22 because there's overwhelming infection. 23 Q. And that's why there's such a high number of 24 bands that now exist at around midnight? 25 A. Or the greater percentage, because it's a 67 1 percentage. There's a greater percentage of 2 bands because there's less cells, but that's 3 what's left is the immature forms of the white 4 blood cells. That's what's left to fight. 5 Q. You of course are not in any position to give me 6 any schematics, would you, as it relates to how 7 long it would take to get from 17,000, 16,000 all 8 the way down to 4.6? 9 A. If you want to do core gases, fine, but not for 10 this. 11 Q. I will do core gas if you want to, but I don't 12 think we need it in this case, maybe another one. 13 A. Okay. 14 Q. Presumptively, had Dr. Hahn initiated an order at 15 2030 for antibiotics, is it your opinion that's 16 the only thing he had to do other than ordering 17 the tests that we've already discussed? 18 MR. JEFFERS: At 2030? 19 MR. BONEZZI: Yes. 20 MR. GORDON: Objection. I think 21 he already answered it. 22 MR. BONEZZI: Not this question. 23 A. In terms of all the potential outcomes or all the 24 possible deviations? 25 Q. No. Let me rephrase it so we communicate. 68 1 It was your opinion that what Dr. Hahn 2 ordered ultimately at 2030, which was the CBC and 3 the urinalysis, was appropriate, but he should 4 also have ordered antibiotics? 5 A. Yes, sir. 6 Q. Now, are those the three things that you believe 7 should have been ordered at that point in time, 8 or is there anything else that he should have 9 ordered? 10 A. No, I think that would have complied with the 11 standard of care. 12 Q. So at that point in time, do you not believe that 13 Dr. Hahn should also have bolstered her with 14 fluids? 15 A. This is now in the evening before? 16 Q. Yes. 17 A. No, I didn't see any indication that there was a 18 problem that would be treated that way. 19 Q. Group A strep, how is it treated? 20 A. Treated with penicillin. 21 Q. Nothing else? 22 A. Primarily treated with penicillin except in 23 patients who are allergic who get vancomycin or 24 something else, but in this day and age patients 25 who are allergic are desensitized and treated 69 1 with penicillin because that's the most effective 2 treatment. 3 Q. The fact is antibiotics eradicate the bacteria 4 but not the by-products of the bacteria, correct? 5 A. Yes. 6 Q. And if antibiotics are given, to what extent, if 7 you know, will there be a release of the 8 toxins -- 9 MR. PARIS: Objection. 10 Q. -- upon death of the bacteria? 11 MR. PARIS: Objection. 12 Q. You may answer. 13 A. I think that you're postulating once the bacteria 14 die how much is released into the system. I 15 don't know how much of it would be active toxin 16 versus inactive toxin because it hasn't been 17 released, it will be a less mature form of the 18 toxin, and I would leave that to somebody else to 19 figure out. 20 The question is interesting. There are 21 certain circumstances in nature in which you do 22 see a big response to killing the cells. I don't 23 know if that holds here. 24 Q. Once again, it all depends upon the strain and 25 the degree of inocula, right? 70 1 MR. PARIS: Objection. I think he 2 said he would defer to somebody else. 3 Q. Go ahead. 4 A. I would defer to Dr. Martens and Dr. Sweet. 5 Q. What type of institution, if you know, does 6 Dr. Martens currently work at? 7 A. He works in a community hospital that has a 8 residency program. 9 Q. How big is that hospital? 10 A. A small hospital. 11 Q. When you say small, you're talking about bed 12 size? 13 A. Yes. 14 Q. Approximately how many beds? 15 A. I would be guessing, I don't know exactly, 300 16 beds. 17 Q. The institution you currently work at, how many 18 beds? 19 A. Well, the one I just left is 700, and the one I'm 20 going to is about 500. 21 Q. The 700 bed institution, how long were you there? 22 A. Almost a year. 23 Q. And prior to that? 24 A. Prior to that I was at a hospital in Brooklyn 25 that was about 600 or 700 beds. 71 1 Q. And how long were you there? 2 A. Three years. 3 Q. You have been practicing for over 25 years, 4 correct? 5 A. Including training, yes. 6 Q. In that 25 years, how many community hospitals 7 were you employed at? 8 A. Several. 9 Q. How many academic institutions were you employed 10 at? 11 A. I have always worked at large community hospitals 12 except earlier in my career when I worked in a 99 13 bed community hospital, but other than that I've 14 worked at academic community hospitals. I've 15 never worked in academic medical school 16 hospitals. 17 Q. By the way, when you have a patient where your 18 suspicions rise to the level of believing the 19 patient's infection may very well be due to a 20 streptococcal bacteria, what do you do, do you 21 treat the patient yourself? 22 A. No, I would get an infectious disease consult. 23 Q. Do you have any in your current department who 24 are obstetricians with a specialty in infectious 25 disease? 72 1 A. No, they are few and far between. 2 Q. In your career, how would I ask this, I have to 3 think of it. 4 Have you dealt to any degree with individuals 5 in infectious disease? 6 A. Certainly. 7 Q. Okay. Do you find that individuals who 8 specialize in infectious disease seem to react 9 quicker, they just believe that antibiotics 10 should be given to the patient, let's treat the 11 patient, and they order antibiotics quicker, for 12 instance, than somebody like yourself who's going 13 to watch the patient, see exactly what happens to 14 the patient? 15 MR. GORDON: Objection. 16 A. I don't think I could comment on that. 17 MR. JEFFERS: Boy, that's an 18 inside objection, Harley. 19 A. I wouldn't generalize, I don't think I could. 20 Q. Do you know Dr. Martens? 21 A. Only by reputation. 22 Q. What's his reputation? 23 A. He's a very, in my opinion, well thought of 24 infectious disease specialist who's an 25 obstetrician/gynecologist. 73 1 Q. By the way, does he deliver babies now, do you 2 know? 3 A. I think he probably does in a supervisory role 4 with the residents, but I wouldn't imagine that 5 he does much labor and delivery. 6 Q. Do you know Dr. Hunter Hammill? 7 A. No. 8 Q. Do you know his reputation? 9 A. I don't know who he is. 10 Q. Do you know any of the experts in this case, and 11 I'm not going to take the time to go through them 12 all, you have a list. 13 A. No, the only one I know by reputation is 14 Dr. Martens. 15 Q. Have you ever worked in a case where Dr. Sweet 16 was one of the experts? 17 A. I could have, I don't know. 18 Q. Do you know any of the experts from the defense 19 side, and there's a lot of them. 20 A. Yes. I heard of Dr. Soper, but I don't know 21 anything specific about him one way or the other. 22 I don't think I've heard of any of the others. 23 MR. BONEZZI: You know, at this 24 time, I'm going to let somebody else ask 25 some questions. 74 1 MR. JEFFERS: I'm going to ask a 2 fast one unless you want to go first. 3 MS. SMALL: Go ahead. 4 - - - - 5 CROSS-EXAMINATION OF MARTIN L. GIMOVSKY, M.D. 6 BY MR. JEFFERS: 7 Q. In terms of your report of December 28, 2000, 8 basically you said that you don't feel there's a 9 need to make any changes in it, correct? 10 MR. PARIS: Objection. 11 MR. JEFFERS: Who's objecting 12 here? You have two lawyers, I'm getting 13 tired of this. 14 MR. PARIS: We both are. 15 A. I made the correction that I thought clarified 16 the sentence. 17 Q. The 0045? 18 A. Right. 19 Q. Now, let's just drop down to your last paragraph? 20 A. Yes. 21 Q. You say if she failed to communicate, referring 22 to Nurse Prokop? 23 A. Yes. 24 Q. Let's presume that she did communicate, then I 25 take it you take no issue with the hospital's 75 1 care in this case, correct? 2 MR. GORDON: Communicate to both 3 doctors, is that it? 4 MR. JEFFERS: I'm just letting him 5 read the paragraph. Would you let me ask 6 my question. 7 A. If Nurse Prokop had given the information, as she 8 said she did, by the written piece of paper to 9 Dr. Hsieh, and by reading all the results, which 10 is our current practice, to Dr. Hahn, then the 11 only question I would really have about Nurse 12 Prokop's care is what she was doing with all 13 those blood pressures at 2 and 3 and 4 a.m. and 14 whether or not those were reported, because I 15 couldn't tell. But I think my criticism here is 16 the main criticism that I have for the nurses. 17 Q. So you have no other criticisms of substance 18 relative to the care provided by the nursing 19 corps at the hospital, correct? 20 A. Only in terms of the communication to the 21 doctors. 22 Q. Which is stated here? 23 A. Yes. 24 MR. JEFFERS: Okay. Thank you. 25 MS. SMALL: Are you done? 76 1 MR. JEFFERS: Yes. 2 - - - - 3 CROSS-EXAMINATION OF MARTIN L. GIMOVSKY, M.D. 4 BY MS. SMALL: 5 Q. Doctor Gimovsky, I'm Janice Small and I represent 6 Dr. Hsieh in this case. I may jump around a 7 little bit to what Mr. Bonezzi did, but I'll do 8 my best. 9 A. There's no blanks, he's very good. 10 Q. He is very good. I agree with that. 11 MR. BONEZZI: I want that typed 12 up. 13 Q. I missed the beginning, and before the deposition 14 you were chatting with everybody, I know that you 15 were telling them about your current practice, 16 and I missed that. So if you could say on the 17 record exactly what you are doing at this point 18 in time. 19 A. Yes, I'm just about to become the program 20 director and the chief of maternal fetal medicine 21 at Newark Beth Israel. 22 Q. And where were you prior to that? 23 A. I was chairman of OB/GYN at Jacoby Medical Center 24 in The Bronx. 25 Q. And why did you decide to leave Jacoby Medical 77 1 Center? 2 A. I ultimately found the politics of the health and 3 hospital corp to be not to my satisfaction. 4 Q. And could you elaborate on that just a little 5 bit. 6 MR. GORDON: Objection. 7 A. I didn't find it a place I wanted to work. 8 Q. I believe prior to that you were in St. Louis, am 9 I correct? 10 A. Prior to working in The Bronx I was the chairman 11 and program director at Brookdale University 12 Hospital in Brooklyn. 13 Q. In Brooklyn? 14 A. And prior to that I was chairman and program 15 director at St. John's Mercy in St. Louis. 16 Q. And why did you leave St. John's? 17 A. Because I grew up in Queens, and I didn't want to 18 live in the midwest. 19 Q. Why did you leave the next institution? 20 A. It went bankrupt, a good reason to leave. 21 Q. Tell me a little bit about your current clinical 22 practice in terms of -- I'm sorry that's not a 23 good question. 24 Of your professional time, how much do you 25 spend in clinical practice and teaching and in 78 1 administrative duties? 2 A. Well, I spend the vast majority of my time at the 3 job I'm just leaving and the job I'm just going 4 to in clinical practice, either with other 5 attendings or fellows or residents. 6 I would say probably 75 percent of my time is 7 clinical either in the clinics themselves or in 8 the labor room or in my own private office, and 9 25 percent is computer screen and writing. 10 Q. And do you have any subspecialties within OB/GYN? 11 A. Yes, I'm board certified in maternal fetal 12 medicine. 13 Q. Have you ever gotten any sort of fellowship or 14 any special training over and above what you did 15 in residency in infectious disease? 16 A. Only as part of my fellowship in maternal fetal 17 medicine. 18 Q. Doctor, you stated before that it sounds like 19 your practice has been for the great extent in 20 academic institutions, is that correct? 21 A. No. What I said is it has been in academic 22 community hospitals, not academic medical 23 schools. 24 Q. Have you ever worked at a community hospital that 25 has house physicians? 79 1 A. Almost always. 2 Q. So the institutions that you work at have 3 residents and house physicians? 4 A. Amongst the providers, yes. 5 Q. Let's talk about the institution that you're with 6 right now. 7 A. Okay. 8 Q. Do they have house physicians, and when I say 9 that, I'm talking about something different than 10 resident positions. Do they have house 11 physicians on staff there? 12 A. No. 13 Q. What is the last institution that you worked at 14 that had, that employed house physicians? 15 A. Brookdale in Brooklyn. 16 Q. And what was the function of a house physician in 17 that institution? 18 A. To provide an extra set of hands at the attending 19 level. 20 Q. Okay. Is it fair to say that they were 21 essentially directed what to do by the attending 22 physician? 23 A. I think it's fair to say that they received 24 direction from nursing, they received direction 25 from attendings, and being attending physicians, 80 1 they also had their own autonomous 2 responsibilities to function. 3 Q. When you say as they were attending physicians? 4 A. Yes. 5 Q. Maybe our definitions are different. Are you 6 saying that they admitted their own patients in 7 the institution? 8 A. By training and experience, Dr. Hsieh was a board 9 certified OB/GYN, and so what I mean to say is 10 that I would expect his behavior to be consistent 11 with that status. 12 Q. Have you ever worked with a house officer 13 yourself? 14 A. A house doctor or a house officer? 15 Q. A house doctor or house officer. 16 A. A house officer is a term for residents. So I 17 spent four years as a resident and two years as a 18 fellow and a lot of years after that working too, 19 so I have been a resident for a long time. 20 Q. Have you ever worked as a house doctor? 21 A. No, not yet. Fortunately things haven't gotten 22 that bad yet. 23 Q. Something to look forward to. 24 A. Please. 25 Q. Doctor, I believe you've reviewed the definition 81 1 of what a house doctor or physician or whatever 2 you want to say, what they did at Parma Community 3 Hospital? 4 A. Yes, ma'am. 5 Q. Is that fairly consistent with your experience 6 with house doctors at other institutions? 7 A. That's consistent with what my expectations would 8 be. 9 Q. Do you maintain your own files on toxic shock 10 syndrome or streptococcal toxic shock syndrome? 11 A. Paper files? 12 Q. Paper files, articles. 13 A. No. Not at all. 14 Q. Did you review any medical literature in 15 connection with the issues presented by this 16 case? 17 A. No, ma'am. 18 Q. I know we talked a little bit about your work 19 with this law firm, with the Nurenberg Plevin law 20 firm. About how many cases per year totally with 21 all law firms do you review a year? 22 A. I review about 6 to 12 cases a year for the last 23 18 years. 24 Q. And approximately the percentage divided between 25 plaintiffs and defendants of the work that you 82 1 do? 2 A. Currently it's about 50/50. 3 Q. Have you ever done any work with defense lawyers 4 in Ohio? 5 A. Absolutely. Much. 6 Q. Can you tell me who? 7 A. All lawyers at Reminger & Reminger. They come to 8 mind the easiest, I'm sure that's a big group. 9 Q. Doctor, have you ever been sued yourself for 10 medical malpractice? 11 A. Yes, ma'am. 12 Q. How many times? 13 A. Twice that I know of. 14 Q. Any pending right now? 15 A. No. 16 Q. Any of the cases deal with postpartum infection? 17 A. No. 18 Q. You mentioned before when Mr. Bonezzi was asking 19 you some questions that you have treated a couple 20 of group strep A patients in your own practice, 21 is that correct? 22 A. Yes. 23 Q. When you were treating those patients, did you 24 obtain any consults from other specialties? 25 A. I don't think so. 83 1 Q. You didn't obtain infectious disease consults? 2 A. I don't believe so. 3 Q. Can you tell me what your understanding is to 4 Dr. Hsieh's role in this case? 5 A. Dr. Hsieh is the house doctor who was called to 6 see the patient when she had shaking and 7 shivering at about 1600 on 6/25/99, and he went 8 and evaluated the patient to see if she was 9 having an eclamptic seizure, I believe his note 10 says. That's 1550 p.m. 11 He spoke to Dr. Hahn somewhere around 1600. 12 He ordered some laboratory tests at 1700, and 13 then he was next involved in this case during the 14 change of shift activities that occurred around 15 0020 to 30 on 6/26/99 when he was asked to see 16 the patient, if I get this right. 17 Dr. Hsieh called to room to evaluate patient 18 due to anxiety, output, vital signs, et cetera. 19 So he was called to the room by Paulette Prokop 20 in and around that time frame. 21 Q. Okay. Let's talk about the first contact that 22 Dr. Hsieh had with Mrs. Williams. My 23 interpretation of the report, and you can correct 24 me if I'm wrong, is that you are not critical of 25 Dr. Hsieh as it pertains to his first visit with 84 1 Mrs. Williams, is that correct? 2 A. That's correct. 3 Q. Now, let's go to the second visit with 4 Mrs. Williams. This is somewhat repetitious to 5 your questions with Mr. Bonezzi, but specifically 6 at 0025 a.m. on 6/26, which is your criticism as 7 it relates to Dr. Hsieh? 8 MR. PARIS: What time did you say? 9 MS. SMALL: 0025. 10 A. You're referring to his note? 11 Q. Right, correct, or that time frame. 12 A. Well, according to the nurses note, he was asked 13 to evaluate the patient due to anxiety, due to 14 her output and due to her vital signs, and 15 according to his note, he said there was no 16 active bleeding from the vagina. 17 So it's not clear that this exam is the 18 proper exam. This is an incomplete evaluation 19 for what it looks like he was called for. 20 Q. Okay. Now, to reach that conclusion, you are 21 relying upon what the nurse wrote in her nurses 22 note, correct? 23 A. What she wrote in her note and the prior symptoms 24 that Debbie Bazzo told Paulette Prokop about, and 25 what both of those parties said in their 85 1 depositions as I remember it. 2 Q. Let's take for a minute the nurses note at face 3 value. What type of examination should Dr. Hsieh 4 have done if he was indeed given that particular 5 information? 6 A. Well, this patient was now 16 hours postpartum, 7 was on magnesium sulfate and had a temperature 8 spike. He should have reviewed her chart, 9 specifically the vital signs in the first 24 10 hours. He was asked to look at the vital signs. 11 You can't evaluate the urinary output without 12 looking at the vital signs. 13 So he should have looked at her vital signs 14 carefully and critically, and then he should have 15 made some examination to determine if the 16 patient's anxiety was related to a problem with 17 the magnesium sulfate, or conversely, if it was a 18 symptom of the pending eclampsia, the patient 19 could have a stroke or hemorrhage or whatever. 20 So he should have written in his, or should 21 have when he evaluated the patient -- you know, 22 that's terrific that the patient didn't have 23 active bleeding from the vagina, but I think that 24 this note that nurse put in also required him to 25 consider the anxiety and the vital signs. 86 1 I think that based on what Paulette Prokop 2 said, she said that both she and Debbie Bazzo 3 didn't think this patient was doing so well. 4 So I think that's probably what the et cetera 5 means, but I don't know that for a fact. But 6 having read zillions of charts, I think that's 7 what it means, and I think that's what I get from 8 her deposition testimony. 9 So there's no comment about her mental 10 status. There's no comment about the things that 11 we would look for for magnesium toxicity, because 12 there's no mention about deep tendon reflexes. 13 On the first line it says BP 127 over 65, 14 which I guess he took, I don't know specifically, 15 it's not the same as the nurses blood pressures. 16 And then there's a comment that says PR, and I 17 guess PR means pulse of 125, and I can't make out 18 what the R would be. I guess it could be the 19 respiratory rate, and I don't know what number 20 that is. It's not clear on the copy. 21 So you could then say that he did at least 22 evaluate the vital signs. If as the previous 23 nursing note suggests that the patient had 24 recurrent complaints of rectal/vaginal pressure, 25 it would be consistent with him doing a rectal 87 1 and vaginal exam to rule out a hematoma, then it 2 would be very important for him to check the CBC 3 as well as the temperature. Because the hematoma 4 classically produces a temperature elevation, 5 albeit not the same range as beta strep, and it 6 can also produce a white cell count, and get a 7 leukocyte to assist on the basis of a hematoma. 8 So it's an incomplete evaluation at that 9 point in time. The other criticism, if I can 10 finish my criticisms -- 11 Q. Sure, please. 12 A. -- is that I don't understand why he didn't 13 communicate directly with Dr. Hahn if indeed he 14 thought there was any problem with the patient, 15 and indeed it says here, he's supposed to 16 communicate with Dr. Hahn, and I think there was 17 probably -- well, I don't have -- I only have the 18 conflicting depositions. 19 There was a problem in the communication 20 between Hsieh, Prokop and Hahn, and it probably 21 went all three directions. And I didn't 22 understand why, if he had gone to rule out a 23 hematoma on a patient, which is kind of what it 24 looks like from the note, he didn't check the 25 white count, and he didn't check the temperature. 88 1 I don't understand why he didn't know that, 2 because he should have read the chart before he 3 examined the patient. Every house officer, house 4 doctor or anybody you let loose with the patient 5 knows to read the chart first. It's a very basic 6 thing. He wasn't going in for a life and death 7 emergency, he was going to evaluate the 8 restlessness, the output and anxiety. 9 And to have evaluated the patient without 10 evaluating the chart is also an incomplete 11 evaluation and important here because it led to 12 the missing of the laboratory results. 13 Q. Okay, doctor. You mentioned there's no comment 14 about the mental status in his progress note. Do 15 you know what her mental status was at 16 approximately shortly after midnight on 6/26? 17 A. Yes, there's a comment later on that she's 18 resting quietly. If that's the comment you're 19 referring to, and that occurs I think after she 20 got the ativan. Let's see if I can find the 21 times. 22 Here, patient does appear less restless and 23 dozing. That's at 2:30 in the morning, patient 24 given the ativan. That's at 1:00 in the morning. 25 So now she's medicated in addition to everything 89 1 else. 2 I don't know what conclusion I would draw. 3 Certainly the nurses complaint calls you to 4 evaluate the restlessness, the anxiety and these 5 things before you treat them to be able to get 6 the best idea of what the cause of the problem 7 might be. Otherwise you're just masking the 8 symptoms. 9 Q. All right. If Dr. -- I know that your opinions 10 are based upon Nurse Prokop's deposition as well 11 as the nurses note that you're looking at. Let's 12 assume for a minute that Dr. Hsieh was just given 13 the information by the nurse that they were 14 concerned that she was having an episode of 15 vaginal bleeding. 16 A. Okay. 17 Q. Would the progress note that he authored at 0025 18 have been adequate under those circumstances? 19 A. If he was called to see the patient for vaginal 20 bleeding postpartum alone? 21 Q. Yes. 22 A. He would still have had to have read the chart to 23 know the patient had a fever, a Foley, all those 24 other factors. If she was hemorrhaging he might 25 have gone in and examined her first, but I don't 90 1 see why that would change what he would have to 2 do. 3 It's clear from his note that's what he was 4 focused on, so I understand why you're asking, 5 but it's not clear that it changes his 6 responsibility in my judgment. 7 Q. Okay. It is clear that he was aware of the 8 hemoglobin and hematocrit results, isn't that 9 correct? 10 A. As well as the magnesium level. 11 Q. And wouldn't those, under the circumstances that 12 he was being asked to evaluate vaginal bleeding, 13 wouldn't those have been the crucial portions of 14 the CBC that he needed to know to evaluate 15 whether the vaginal bleeding was a problem? 16 A. Well, in a patient with bleeding who has 17 preeclampsia to not evaluate the platelet count, 18 that's the most important piece of information 19 there. Had he assessed she had vital signs, the 20 platelet count would have been the one area that 21 would have been the most single and most 22 important value to get. And I don't know anybody 23 who would read all the way down the CBC and skip 24 the white count and go to the platelet count. 25 So I think hematocrit and hemoglobin are 91 1 important but not the only things that are 2 important in a preeclamptic patient who might 3 have some issue with her vital signs and the 4 rest. 5 Q. What was the platelet count? 6 A. Just over 100,000. 7 Q. Is that normal? 8 MR. PARIS: Get the chart. 9 Q. Feel free to look at the chart. 10 A. The platelet count at 2330 was 114, and I would 11 say that's low but not pathonomic of anything. 12 Again, her platelet count earlier when she came 13 in was 133, maybe that is even indicative and 14 certainly consistent with preeclampsia. 15 So I think that there's not anything that is 16 there that would have helped particularly, only 17 if you saw somebody bleeding and had a platelet 18 count of 114 you would read the rest because it's 19 less than 150. 20 Q. You're assuming he didn't ask for the platelet 21 count from the nurse? 22 A. I'm assuming the nurse gave him a piece of paper 23 with the lab values on it. 24 Q. If his testimony will be that he asked what he 25 thought were the germane lab values for what he 92 1 was asked to evaluate -- 2 A. Right. 3 Q. -- would that be in compliance with the accepted 4 standards of care? If he went in because of an 5 episode of vaginal bleeding, asked the nurse for 6 the hemoglobin and hematocrit and was given these 7 results here, did that comply with the accepted 8 standards of care? 9 MR. PARIS: Objection. 10 A. I think that's not what occurred here. Because 11 his exam is consistent with looking for a 12 hematoma and not looking for vaginal bleeding. 13 Q. Okay. 14 A. So is that theoretical, a consideration that 15 you're giving me? 16 Q. Yes. 17 A. If somebody goes in for a hematoma, they have to 18 check the whole thing, white count and platelet. 19 If somebody had vaginal bleeding, you might do a 20 pelvic exam, but you still have to check the 21 platelet count, and you would go back and you 22 would see. 23 You have to read the chart also. You would 24 have to have noticed that the patient had a 25 temperature of 100.4, second elevation 24 hours 93 1 after her labor had started. So I don't see how 2 I could make it come out that way, which is I 3 think what your question is. 4 Q. Well, I guess the bottom line is that I'm asking 5 you is are you saying that the house officer or 6 the house doctor has the duty to always look at 7 the patient's chart in it's entirety whenever 8 asked to look at the patient for any reason 9 whatsoever? 10 A. What I'm saying is that the standard of care for 11 a board certified obstetrician, which Dr. Hsieh 12 had been for 20 years prior to that, is to make a 13 thorough evaluation, and you can't make a 14 thorough evaluation without reading the chart and 15 finding out what the germane issues are. By and 16 large you find that out from the nursing notes as 17 a doctor. 18 Q. I think we're kind of going in circles here, but 19 is there ever a situation where a house doctor 20 can be called to look at a patient for one issue 21 or one problem and not be required to look at the 22 chart in its entirety? 23 A. At some point in time? 24 Q. Well, around the time of the evaluation of the 25 patient? 94 1 A. If somebody is called because somebody's having a 2 life and death problem, you take care of that 3 first. I have been a residency program director 4 for a long time, and I would have to say that it 5 would be my expectation that anybody called to 6 evaluate a patient would take a look through the 7 chart under any circumstance I can think of. 8 I can't think of an exception. It certainly 9 wouldn't be good practice to do that, but my 10 opinion would be if you're called to see my 11 patient, and she has a runny nose, I would still 12 expect you to read through the chart, yes. 13 Q. You indicated that you believe that what happened 14 in this case is that the nurse printed off the 15 CBC and showed it to Dr. Hsieh, is that correct? 16 A. Well, I think she did that with the lab values. 17 She had the magnesium and the rest, and that's 18 what she said in her testimony was her standard 19 practice, I think. 20 Q. And you're not sure whether or not that included 21 the differential, is that correct? 22 A. I didn't look at it that way, okay, because 23 sometimes the differential comes later. And in 24 this particular case it says the differential was 25 automated. So I would think that that would mean 95 1 that the differential must have been there when 2 the CBC was reported because the way the CBC is 3 run, you get all the information at once. But 4 some of those were manual, and that's what I was 5 thinking. 6 Q. But you don't know for sure whether or not 7 Dr. Hsieh was given that information by the 8 nurse, correct? 9 A. Well, it's in conflict here, between what 10 everybody says. 11 Q. I understand that there's a lot of conflicts 12 here, but my question to you is, you're not sure 13 what occurred, are you, with respect to whether 14 or not Dr. Hsieh was given the differential? 15 A. I can't say where he got his information from, 16 whether he got it from asking Nurse Prokop what 17 the values were, or whether he read it from the 18 computer screen or whether he read it from a 19 piece of paper. Those are all possibilities in 20 this case. 21 Q. And you can't say even if he read it from a piece 22 of paper, whether or not the differential was on 23 the piece of paper that he was given? 24 MR. JEFFERS: Objection. That's 25 not what he just said now because he just 96 1 looked at it and saw that it was automated. 2 A. I think now that I just saw it was automated, I 3 can see the correction. Some of those 4 differentials were manual, they may have come 5 later, and I'm just bending over backwards to 6 give everyone the benefit of the doubt. 7 Automated differential in my mind would be there 8 the whole time the CBC was there. 9 So this particular blood, 2330 was the only 10 one automated there, so that particular 11 differential might very well have been there, and 12 I would expect it would have been there since it 13 was the automatic one. 14 Q. Doctor, based upon some of the conversations that 15 you've had with Mr. Bonezzi over the infectious 16 process that occurred in this case, it's my 17 impression that you do not really consider 18 yourself an expert in the area of infectious 19 disease, is that fair? 20 A. Well, I think what I tried to say was that I am 21 an expert at the level of a maternal fetal 22 specialist, so I have expertise in excess of an 23 OB/GYN, and I would expect that most of what I 24 have as experience, because we do a lot 25 clinically with infection with maternal fetal 97 1 medicine, is consistent with the few people there 2 are in infectious OB/GYN. 3 We don't routinely have access to that. So I 4 would say acting as an expert in infectious 5 disease in obstetrics would be what I do for a 6 living, only that I didn't know every answer to a 7 degree of medical certainty, and I don't think 8 anybody necessarily does. So really I was just 9 trying to be fair. But I certainly consider 10 myself appropriate for chief of maternal fetal 11 medicine, which is different than it would be for 12 a practicing OB/GYN. 13 Q. Would you defer to an individual like Dr. Martens 14 or Dr. Sweet in terms of the statistics as it 15 relates to the survivability of a patient that 16 has group A toxic shock-like syndrome? 17 A. I would certainly want to know their opinions, 18 and I don't have any reason to not answer that 19 question yes, than if I went and did all the 20 research myself, I would expect my opinion would 21 be equally valid. But if I had to answer the 22 question here and now, I would defer to their 23 greater knowledge. 24 Q. What about someone that spends all of his time 25 doing infectious disease work, would you defer to 98 1 their opinions as it pertains to survivability of 2 a patient such as Mrs. Williams? 3 MR. PARIS: Objection. 4 A. Not if they weren't an obstetrician/gynecologist, 5 no. Pregnant women manifest disease very 6 different than nonpregnant women. 7 Q. Doctor, would you agree that in this case a 8 diagnosis of the sepsis in this case was made 9 more difficult by the fact that this patient had 10 preeclampsia? 11 A. I don't know about the operative phrase made more 12 difficult. I think that preeclampsia does affect 13 your vital signs, and the magnesium does affect 14 your vital signs, and so I would say that they 15 are other factors to consider, but it's a very 16 commonly used treatment in a very common disease. 17 I don't think it's more difficult, I just think 18 there are other factors that have to be 19 considered. 20 Q. And the same question as it pertains to the 21 postpartum hemorrhage this patient had. Would 22 that affect the ability to diagnose the infection 23 in this case? 24 A. Well, it just makes it more likely that there's 25 infection. It's well known that postpartum 99 1 bleeding is associated with postpartum infection. 2 So it makes it more likely, that's all. 3 MS. SMALL: Doctor, I think that's 4 all the questions I have. Thank you. 5 MR. JEFFERS: I have one more. 6 - - - - 7 FURTHER CROSS-EXAMINATION OF 8 MARTIN L. GIMOVSKY, M.D. 9 BY MR. JEFFERS: 10 Q. I was just thinking of one thing here. Dr. 11 Soper, you recognize the name but don't 12 necessarily know him? 13 A. No, I don't. 14 Q. Have you read any of his articles or portions of 15 the books that he's contributed to? 16 A. No. 17 MR. JEFFERS: Okay. Thank you. 18 MR. BONEZZI: Thank you, sir. 19 20 _________________________ MARTIN L. GIMOVSKY, M.D. 21 22 23 24 25 100 1 2 C E R T I F I C A T E 3 4 The State of Ohio, ) SS: County of Cuyahoga.) 5 6 I, M. Sheila Hanlon, a Notary Public within 7 and for the State of Ohio, authorized to administer oaths and to take and certify 8 depositions, do hereby certify that the above-named, MARTIN L. GIMOVSKY, M.D. was by me, 9 before the giving of his deposition, first duly sworn to testify the truth, the whole truth, and 10 nothing but the truth; that the deposition as above-set forth was reduced to writing by me by 11 means of stenotypy, and was later transcribed into typewriting under my direction; that this is 12 a true record of the testimony given by the witness, and was subscribed by said witness in my 13 presence; that said deposition was taken at the aforementioned time, date and place, pursuant to 14 notice or stipulations of counsel; that I am not a relative or employee or attorney of any of the 15 parties, or a relative or employee of such attorney or financially interested in this 16 action. 17 IN WITNESS WHEREOF, I have hereunto set my hand and seal of office, at Cleveland, Ohio, this 18 ____ day of ____________, A.D. 20____. 19 20 ______________________________________________ M. Sheila Hanlon, Notary Public, State of Ohio 21 1750 Midland Building, Cleveland, Ohio 44115 My commission expires January 22, 2006 22 23 24 25 101 1 W I T N E S S I N D E X 2 PAGE CROSS-EXAMINATION 3 MARTIN L. GIMOVSKY, M.D. BY MR. BONEZZI......................... 3 4 CROSS-EXAMINATION 5 MARTIN L. GIMOVSKY, M.D. BY MR. JEFFERS........................ 74 6 CROSS-EXAMINATION 7 MARTIN L. GIMOVSKY, M.D. BY MS. SMALL.......................... 76 8 FURTHER CROSS-EXAMINATION 9 MARTIN L. GIMOVSKY, M.D. BY MR. JEFFERS........................ 99 10 11 E X H I B I T I N D E X 12 EXHIBIT MARKED 13 Defendant's Exhibits 1 and 2........... 3 Defendant's Exhibit 3.................. 9 14 Defendant's Exhibit 6................. 65 15 16 17 18 19 20 21 22 23 24 25