0001
 1              IN THE COURT OF COMMON PLEAS
 2                OF CUYAHOGA COUNTY, OHIO
 3                      - - - - -
 4   LARRY ZERBIAN, et al.,
 5         Plaintiffs,
 6         vs              Case No. CV-07-618652
 7   UNIVERSITY HOSPITALS
     HEALTH SYSTEM, INC., et al.,
 8   
           Defendants.
 9   
10                       - - - - -
11          DEPOSITION OF DONALD J. GODDARD, M.D.
12              THURSDAY, JANUARY 24, 2008
13                       - - - - -
14        Deposition of DONALD J. GODDARD, M.D., a
15   Defendant herein, called by counsel on behalf of
16   the Plaintiff for examination under the statute,
17   taken before me, Vivian L. Gordon, a Registered
18   Diplomate Reporter and Notary Public in and for
19   the State of Ohio, pursuant to agreement of
20   counsel, at the offices of Moscarino & Treu, the
21   Hanna Building, Cleveland, Ohio, commencing at
22   3:00 o'clock p.m. on the day and date above set
23   forth.
24                       - - - - -
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiff
 3         Becker & Mishkind
 4         HOWARD D. MISHKIND, ESQ.
 5         Skylight Office Tower Suite 660
 6         1660 W. 2nd Street
 7         Cleveland, Ohio 44113
 8         216-241-2600
 9   
10   
11   
12   On behalf of the Defendant
13         Moscarino & Treu
14         KRIS TREU, ESQ.
15         The Hanna Building Suite 630
16         Cleveland, Ohio 44115
17         216-621-1000
18   
19                  - - - -
20   
21   
22   
23   
24   
0003
 1         DONALD J. GODDARD, M.D., a witness herein,
 2   called for examination, as provided by the Ohio
 3   Rules of Civil Procedure, being by me first duly
 4   sworn, as hereinafter certified, was deposed and
 5   said as follows:
 6     EXAMINATION OF DONALD J. GODDARD, M.D.
 7   BY MR. MISHKIND:
 8         Q.    Would you please state your name for
 9   the record.
10         A.    Don Goddard.
11         Q.    You are a physician; is that
12   correct?
13         A.    Yeah.
14         Q.    Dr. Goddard, I have been handed just
15   before the deposition started answers to
16   interrogatories that you have answered, I
17   presume.  Have you reviewed these answers and
18   verified them to be true and accurate?
19         A.    Yes.
20         Q.    And attached to the interrogatories
21   is a CV.  I'll ask you just some brief questions
22   to get a little bit of background on you and
23   then we will talk about your involvement with
24   regard to Larry Zerbian.  Is that fair?
0004
 1         A.    This may need to be updated a little
 2   bit too.
 3         Q.    It's marked as an attachment to the
 4   interrogatories as Exhibit A and it looks like
 5   two copies attached.
 6                     - - - - -
 7              (Thereupon, GODDARD Deposition
 8               Exhibit 1 was marked for
 9               purposes of identification.)
10                    - - - - -
11         Q.    Doctor, I'm going to hand you what's
12   been marked for identification as Plaintiff's
13   Deposition Exhibit 1, Goddard.  It appears to be
14   a four-page document that purports to be your
15   curriculum vitae; is that correct?
16         A.    Yes.
17         Q.    Before we identify that, I think you
18   had volunteered that there might be some changes
19   that need to be made to bring it current?
20         A.    Yeah.
21         Q.    Can you describe what would need to
22   be changed or added to make it current?
23         A.    Yeah.  Going through this, for 2003
24   to the present, University Primary Care
0005
 1   Physicians, family physician, I'm still a family
 2   physician there; I'm not the site director.
 3               On the next line, 2004 to present,
 4   medical director of case management and
 5   utilization.  I was that from 2004 to 2006.
 6               And going through it, the other
 7   addition that should be here is in fall of 2007.
 8   In November I became the chief medical officer
 9   of Geauga Hospital as well as Heather Hill
10   Extended Care Campus.  So those are the only
11   additions I want to put on there.
12         Q.    Great.
13               MR. TREU:  Keep your voice up and
14   try to speak slowly.
15               THE WITNESS:  Okay.
16         Q.    Doctor, have you had your deposition
17   taken before?
18         A.    Yes.
19         Q.    On how many occasions?
20         A.    Several.  I can't recall the exact
21   number.
22         Q.    More than twice?
23         A.    Yeah, maybe five or six times.
24         Q.    Of those five or six times, have any
0006
 1   of them been involved in situations where you
 2   were named as a defendant?
 3         A.    One time.
 4         Q.    Is that case, to your knowledge,
 5   still pending?
 6         A.    No.
 7         Q.    Was it in Geauga County or what
 8   county was it in?
 9         A.    Lake County.
10         Q.    Did that matter proceed to trial?
11         A.    Yes, but then it was settled.
12         Q.    What was the subject matter as best
13   as you understood it?
14         A.    It was really a business lawsuit
15   between Lake Hospital and myself.
16         Q.    I'm sorry, did you say you have been
17   named as a defendant in a medical negligence
18   case?
19         A.    No.
20         Q.    So this is the first time?
21         A.    First time.
22         Q.    Let me give you a couple
23   instructions.  Mr. Treu properly cautioned you
24   with regard to keeping your voice up and also
0007
 1   speaking slower.
 2               But just in fairness to you, since
 3   this is the first time your deposition has been
 4   taken in a medical negligence case, I want to
 5   make sure that as I go through the questions
 6   that I have for you that there is no doubt at
 7   all that I was clear and that you answered the
 8   questions based upon a clear understanding.
 9               So I'm going to give you a couple
10   instructions.  The first being, as Kris said,
11   speak up, don't nod your head.  Especially with
12   Vivian's laptop, I don't want to have her worry
13   to see if you are nodding your head
14   affirmatively.
15         A.    Okay.
16         Q.    Also, make sure that you are waiting
17   until I finish with my question.  Kris will tell
18   you that sometimes you will wonder whether my
19   question will ever end and you start answering
20   it thinking that you are giving me an answer to
21   the question and, who knows, I might take a
22   slight dog leg in a different direction.
23               So please wait until I'm done, and
24   then if you don't understand the question, tell
0008
 1   me, Howard, I don't understand your question.
 2         A.    Okay.
 3         Q.    When you answer a question, I'm
 4   going to remain silent.  I'm going to let you
 5   finish answering the question.  I'm not going to
 6   interrupt you.  Is that fair?
 7         A.    Yeah.
 8         Q.    I also want you to do the same to
 9   me.  When I'm asking you a question, don't start
10   talking until I'm done so that Vivian's job is
11   made easier.
12               Again, this is all with the
13   predicate and hope of making sure that you
14   understood my question and you answered that
15   which was clear and understandable.  Okay?
16         A.    Okay.
17         Q.    As I'm sure you know, there have
18   been some depositions taken in this case prior
19   to yours.  Dr. Pawlicki's deposition was taken,
20   Dr. Ashwath's deposition was taken, and I think
21   that's it, although sometimes the cases blur
22   together, but I think those are the only ones.
23               Obviously you know Dr. Pawlicki?
24         A.    Uh-huh.
0009
 1         Q.    That's a yes?
 2         A.    Yes.
 3         Q.    Have you had a chance to read over
 4   either of the transcripts of his deposition?
 5         A.    Yes.
 6         Q.    Do you have them with you today?
 7         A.    No.
 8         Q.    Probably back in Mr. Treu's office?
 9         A.    Yeah.
10         Q.    Did you make any notes when you read
11   Dr. Pawlicki's deposition?
12         A.    No.
13         Q.    What about Dr. Ashwath, have you
14   read her deposition?
15         A.    No.
16         Q.    Were you provided with a copy of
17   that deposition?
18         A.    No.
19         Q.    There are several other doctors that
20   were involved in various aspects of
21   Mr. Zerbian's care from your office or from the
22   offices out in, whether it be Chardon or the
23   Mayfield office.  Dr. O'Hara, I believe, is one
24   of the doctors?
0010
 1         A.    Yes.
 2         Q.    Have you talked to Dr. O'Hara at all
 3   about this case?
 4         A.    No.
 5         Q.    Have you talked to any of the
 6   physicians that were involved at Geauga Hospital
 7   or at the main campus of University Hospitals
 8   with regard to this lawsuit?
 9         A.    No.
10         Q.    Now --
11         A.    Dr. Pawlicki, the day I got the
12   lawsuit I called Dr. Pawlicki and told him I had
13   gotten it.  I don't remember if he had his or
14   not.  That was the end of our conversation.
15         Q.    Fair enough.  When Mr. Zerbian was a
16   patient at University Hospitals in September of
17   2005, did you have any telephone communication
18   with any of the physicians from University
19   Hospitals while he was still confined?
20         A.    At Geauga Hospital?
21         Q.    No, at University Hospitals main
22   campus.
23         A.    Not that I recall.
24         Q.    I do see some reference to an
0011
 1   emergency room visit.  We will talk about that
 2   in greater detail.  I believe it was an
 3   October 1 emergency room visit to Geauga where
 4   it references that you were consulted or you
 5   were contacted when the patient was seen in the
 6   emergency room.
 7               Do you have any independent
 8   recollection from, say, August of 2005 up to
 9   January of 2006 when Mr. Zerbian was eventually
10   admitted to the hospital and had his
11   endocarditis diagnosed, do you have any
12   recollection of speaking with any physicians
13   that had an opportunity to see and treat
14   Mr. Zerbian while he was in the hospital?
15         A.    To my recollection, no.  I believe
16   that -- no, from my recollection, no.
17         Q.    There is a reference to Anthony
18   Magalski, an emergency room doctor --
19         A.    Yeah.
20         Q.    -- that saw Mr. Zerbian, I think, on
21   the September emergency room visit.
22               Do you have any recollection of
23   having any conversation with Tony Magalski?
24         A.    I think in reviewing the chart I saw
0012
 1   that he had called me and the patient was
 2   admitted to Geauga Hospital after that.
 3         Q.    Is it fair to say that even though
 4   the record reflects that he contacted you, that
 5   you don't have an independent recollection of
 6   any conversation one way or another?
 7         A.    No.
 8         Q.    Is that a fair statement?
 9         A.    Fair statement.
10         Q.    Okay.  As we go through the
11   deposition, what I want you to do -- because I'm
12   not going to go through each and every entry.  I
13   have typed entries, I have handwritten notes.
14   I'm going to have questions relative to certain
15   office visits.
16               I'm not going to go back and cover
17   each and every visit from the time that you
18   first saw him, but when I talk about a
19   particular visit, if there is something that
20   stands out in your mind that you remember in
21   terms of your interaction with Mr. Zerbian that
22   isn't reflected in your office note, feel free
23   to tell me, Mr. Mishkind, or Howard, even though
24   it doesn't say A, B and C, I remember the
0013
 1   following.
 2               I don't want to be surprised at the
 3   time of trial and learn something that you
 4   remember independently as we go through the
 5   records.
 6               If you don't remember something
 7   beyond the record, I'll accept that, but if
 8   there is something that you remember
 9   independently as we talk about the visit, will
10   you please make a point of telling me?
11         A.    Sure.
12         Q.    Thank you.
13               You are a family physician?
14         A.    Yes.
15         Q.    Are you board certified by the
16   American Academy of Family Physicians?
17         A.    Yes.
18         Q.    Are you a member of the American
19   Academy of Family Physicians?
20         A.    Yeah.
21         Q.    I think actually the board
22   certification is a different name?
23         A.    American Board of Family Medicine or
24   Family Practice.  They changed it, yeah.
0014
 1         Q.    There are a number of publications
 2   issued by the American Academy of Family
 3   Physicians; correct?
 4         A.    Yes.
 5         Q.    There is a sort of a throw-away
 6   journal that I think is published 24 times a
 7   year and I don't remember the name of it.  Can
 8   you help me out?
 9         A.    There is like a family practice
10   recertification journal you might be referring
11   to and then the Academy of Family Physicians
12   main journal, which is once a month.
13         Q.    Do you subscribe to the various
14   journals that are published by the American
15   Academy of Family Physicians?
16         A.    Yes.
17         Q.    In terms of keeping current and up
18   to date on medicine and evidence based medicine,
19   how do you keep current?  What resources or
20   references do you use?
21         A.    The American Academy of Family
22   Practice Journal; that comes out once a month.
23   Several other journals I'll pick up to read an
24   article; medical conferences; and then video
0015
 1   review tapes that I'll order and watch.
 2         Q.    The American Academy of Family
 3   Physicians publishes certain practice guidelines
 4   for various subject matters.  Are you familiar
 5   with the publications that have to do with
 6   various algorithms for treating particular
 7   conditions?
 8         A.    Yes.
 9         Q.    Do you know whether there are any
10   algorithms that deal with the diagnosis and
11   treatment of infectious endocarditis?
12         A.    I believe there are.
13         Q.    Have you reviewed any of those in
14   preparation for today's deposition?
15         A.    No.
16         Q.    Do you follow those or do you
17   attempt to follow those in your day-to-day
18   practice?
19         A.    I attempt to follow them.
20         Q.    Do you believe that the algorithms
21   that deal with the diagnosis and treatment of
22   infectious endocarditis are reasonable and
23   prudent algorithms for your practice?
24         A.    Those algorithms from the Academy of
0016
 1   Family Physicians I do.
 2         Q.    Do you acknowledge that they are
 3   reasonable and authoritative as it relates to
 4   the diagnosis and treatment of infectious
 5   endocarditis?
 6         A.    I do.
 7         Q.    Have you published anything?
 8         A.    No.  My name might be on one
 9   research article from when I helped the lab when
10   I was in medical school, but that's it.
11         Q.    What is, under 1990, the award for
12   PHICO patient relation award?
13         A.    I was in medical school and when we
14   graduated that was an insurance company that
15   gave out an award to the medical student they
16   thought had the best relationship with patients.
17         Q.    Where do you have hospital
18   privileges currently?
19         A.    At Geauga Hospital, at Extended Care
20   Campus, and I believe I have courtesy privileges
21   at University Hospitals main campus.
22         Q.    Do you do any teaching?
23         A.    I have.
24         Q.    Are you currently doing any
0017
 1   teaching?
 2         A.    Not right now.
 3         Q.    When was the last time that you had
 4   any teaching responsibilities?
 5         A.    I think the last time I had a
 6   student would have been in 2006.
 7               MR. MISHKIND:  Off the record.
 8               (Discussion off the record.)
 9         Q.    Tell me what your current clinical
10   practice consists of.
11         A.    Right now I'm the chief medical
12   officer at Geauga Hospital and at Heather Hill
13   Extended Care Campus, which is a post acute care
14   hospital.
15               So my clinical practice is now only
16   three or four hours on Tuesday nights, and on
17   occasion I'll take care of a patient in either
18   hospital to help out.
19         Q.    So three to four hours a week you
20   see patients?
21         A.    In my office.
22         Q.    Do you see patients in a clinical
23   setting in the hospital currently?
24         A.    Yeah, one or two patients at a time
0018
 1   in the hospital or at Extended Care Campus.
 2         Q.    What about at Heather Hill?  Is that
 3   what you were referring to?
 4         A.    We can just say Heather Hill from
 5   now on.
 6         Q.    It makes it easier for me.
 7         A.    At Heather Hill I take care of maybe
 8   one or two patients during the month.
 9         Q.    Between the three to four hours that
10   you see patients in the office and the one or
11   two patients that you see a month at Heather
12   Hill, if you combine that together, are there
13   any other aspects on a professional level that
14   involve the clinical practice of medicine
15   currently?
16         A.    Well, my job as chief medical
17   officer is to do quality assurance, quality
18   improvement, risk management, a lot of business
19   activities of the hospital.  So I'm always
20   involved in the care of patients one way or the
21   other throughout the day.
22               I'm not sure that answers your
23   question.
24         Q.    You don't have actual hands-on or
0019
 1   bedside responsibility for patients in
 2   connection with your position as the chief -- is
 3   it chief medical officer?
 4         A.    Chief medical officer.
 5         Q.    Is that an accurate statement?
 6         A.    Yeah.  I make take a patient, to
 7   admit that patient just so I can keep my skills
 8   up, have an idea what is happening in the
 9   hospital, and that would be it.
10         Q.    What percentage of your professional
11   time is currently involved in aspects of quality
12   assurance or administrative components?
13         A.    Yeah, it's 40 hours a week.  It's
14   more than that.  I would say 90 percent of my
15   time is doing administrative work now since
16   early 2006.
17         Q.    What brought about the change in
18   early 2006?  Because I'm going to assume by that
19   statement that prior to 2006 you had a much more
20   active clinical practice than you do now; is
21   that a fair statement?
22         A.    Yes.
23         Q.    What percentage of your professional
24   time would you say was devoted to the active
0020
 1   clinical practice of medicine prior to January
 2   of 2006?
 3               And let's just perhaps even focus in
 4   the period of August of 2005 up to when Larry
 5   was admitted to the hospital with his diagnosis
 6   of infectious endocarditis.
 7         A.    Yeah, half my time was spent as the
 8   chief medical officer of Heather Hill and the
 9   other half of my time was spent doing clinical.
10         Q.    So it was basically a 50/50 split in
11   terms of your professional time when you were
12   seeing Larry during that time period.  Since
13   January it's been 90 percent or more
14   administrative, quality assurance, but not
15   actual clinical practice?
16         A.    Right.
17         Q.    Okay.  Tell me why you chose to go
18   that career path at that particular point in
19   time.  What led to it?
20         A.    Well, even earlier in my career I
21   had been involved in administration and one of
22   my passions in life is quality improvement,
23   quality assurance.  And I love seeing patients
24   but I also love doing quality assurance and
0021
 1   quality improvement and the administrative side
 2   of medicine.  That's how I got involved.  I had
 3   a plan for a couple years to try to get to this
 4   point.
 5         Q.    Have you at any time during your
 6   career as a physician ever been denied hospital
 7   privileges?
 8         A.    No.
 9         Q.    Have your privileges ever been
10   revoked, suspended or called into question?
11         A.    Other than for medical records, not
12   any other time.
13         Q.    Once you cleared that up --
14         A.    Yeah.
15         Q.    -- you got them back?
16         A.    Yeah.
17         Q.    Have you been the subject of any
18   disciplinary action before a state or national
19   licensing board?
20         A.    No.
21         Q.    Have you had an opportunity to serve
22   as an expert witness, either in terms of giving
23   deposition testimony or reviewing medical
24   records and providing opinions on standards of
0022
 1   care at any time during your career?
 2         A.    Well, there is one time when I was
 3   brought in as a witness -- not expert witness --
 4   a witness in actually a malpractice case.  That
 5   was one of the depositions I had to give.  I
 6   wasn't named, I just had to give what I thought
 7   happened to the patient.  I forgot about that
 8   earlier.
 9               And the other time, my attorney,
10   Walt McNamara, who represented me for Lake
11   Hospital asked me to look at files.  I never
12   gave him an expert opinion.  I just told him
13   what I thought of the medical files.
14         Q.    Have you reviewed, other than that
15   which is perhaps copied and made a part of your
16   file, but have you reviewed any of the inpatient
17   records from September of 2005 from the main
18   campus of University Hospitals for Mr. Zerbian?
19         A.    The hospital records?
20         Q.    Yes.
21         A.    No.  I just looked at these.
22         Q.    These being what you have in terms
23   of the physician copy and your office chart?
24         A.    Yeah.
0023
 1         Q.    And we are going to talk about that.
 2               Have you reviewed the actual chart
 3   from UHHS, Geauga Regional Health Systems
 4   records?
 5         A.    No.
 6         Q.    For the admissions that Larry had
 7   back in the late summer, early fall of 2005?
 8         A.    No.
 9         Q.    You have obviously heard the name
10   Dr. Ashwath, Dr. Lisgaris, as it relates to some
11   of the issues and identified parties in this
12   case.  Do you know either of those two doctors?
13         A.    Dr. Lisgaris I know is an infectious
14   disease doctor who I have had patients see in
15   the past, but I don't know either one
16   personally.
17         Q.    When you were in the active clinical
18   practice of medicine prior to January of 2006,
19   did you have an area within family practice that
20   you had a particular interest in?
21         A.    No.  All areas were interesting to
22   me.
23         Q.    You didn't have a subspecialty?
24         A.    No.
0024
 1         Q.    Did you see patients from crib to
 2   grave as a family practitioner?
 3         A.    Yes.
 4         Q.    Did you provide well woman care, as
 5   well, or did you limit certain aspects of your
 6   crib-to-grave practice?
 7         A.    I did well woman care, as well.
 8         Q.    You did obstetrics?
 9         A.    I'm sorry, not obstetrics.
10         Q.    So just breast exams and things of
11   that nature, but no obstetrics?
12         A.    No.
13         Q.    Fair enough.  Were there any other
14   areas that some family practitioners would
15   involve themselves in that you did not?
16         A.    Like obstetrics?
17         Q.    Yes.  I mean, any other area that a
18   family practitioner can be competent in if they
19   direct themselves to, but may not choose to.
20   One of them is you chose not to do obstetrics.
21               Were there any other aspects that
22   you chose not to do?
23         A.    I stopped, I don't do first
24   assistant surgery.  Some of the doctors do
0025
 1   cosmetic surgery, I don't do that.   Nothing
 2   else comes to mind.
 3         Q.    So certainly from the standpoint of
 4   diagnosing, treating and managing patients that
 5   have an infection, while you may consult with an
 6   infectious disease doctor, you have the
 7   knowledge, training and experience to diagnose
 8   and to treat infections; correct?
 9         A.    Yes.  With consultation when needed.
10         Q.    Sure.
11               MR. MISHKIND:  Let me go off the
12   record for a second.
13               (Recess had.)
14         Q.    Doctor, I thank you for permitting
15   me to review the original of your chart.  I had
16   been provided with records prior to suit and
17   then copies were given to me during litigation,
18   although there are a couple items in the chart
19   that for whatever reason I still did not have.
20               What I'm going to do is just
21   reference the item.  We can photocopy it and
22   have it marked as an exhibit.  I'll give you
23   back that chart.
24               There is correspondence in the
0026
 1   thinner of the two charts.
 2         A.    That's a Workers' Comp chart.
 3         Q.    Okay.  There is a letter written on
 4   November 11, 2005, Civil Service letter that was
 5   not previously provided to me in any request.
 6               Can you tell me, when it says Civil
 7   Service, who it was that you were directing this
 8   letter to?
 9         A.    I want to take a quick look.  That
10   visit in November, from my recollection, what
11   Larry needed was a letter talking about his back
12   pain and his therapy and I think the purpose was
13   to get him disability or to extend his time off
14   because he was having a lot of back pain, so
15   that was the purpose of this letter.
16               MR. MISHKIND:  Kris, if we can
17   agree -- it's a two-page letter -- to make a
18   photocopy.  If we remember sufficiently enough
19   we can mark it as an exhibit, otherwise if you
20   can just photocopy it and shoot me a copy.
21               MR. TREU:  Sure.  We can get it for
22   you before we leave.
23         Q.    In this letter, doctor, that I'm
24   looking at, it does indicate in the last
0027
 1   paragraph of the first page, the patient has
 2   been very compliant with therapy; has been slow
 3   to respond to therapy, though.  And then you
 4   talk about he is to be seen by an orthopedic
 5   surgeon who specializes in the spine.
 6               The phrase that I'm capturing is,
 7   did you find Larry in your experience to be a
 8   compliant patient?
 9         A.    Overall, no, but in this case, I
10   think he was compliant with his therapy when he
11   went for therapy with his back because he was
12   trying to get back to work.
13         Q.    When you say overall no, why do you
14   say that?
15         A.    My recollection was that -- Larry is
16   a great guy, but he didn't always follow up for
17   appointments.  And when I saw him I remember, as
18   far as his diabetes, he seemed reluctant to take
19   his medications and was trying to wean down off
20   them or not check his blood sugars.  That's just
21   recollection.
22         Q.    Other than perhaps being either a
23   noncompliant or poorly compliant diabetic, were
24   there any other aspects of his own involvement
0028
 1   in the physician/patient relationship that you
 2   considered to be noncompliant?
 3               And in fairness to you, you said
 4   there were some appointments that he may have
 5   not kept.  So add that plus the diabetic
 6   management, were there any other aspects?
 7         A.    Not that I recall.
 8         Q.    Did you consider the
 9   physician/patient relationship that you had with
10   Larry to be a good one?
11         A.    Yes.
12         Q.    Did you get the sense that Larry
13   felt comfortable with you in terms of sharing
14   subjective complaints and bringing information
15   to you when he would see you at office visits?
16         A.    Yes.
17         Q.    I know in January of 2006,
18   Dr. Pawlicki saw Larry at one of the other
19   offices.  Can you explain to me the
20   circumstances under which he saw Larry and you
21   didn't see Larry?
22         A.    You know, the specifics of that,
23   that appointment, I'm not sure I can say
24   exactly, but during that time period, because I
0029
 1   was in administration full time, the other
 2   doctors were seeing my patients for me.  And
 3   actually since that time and now we have
 4   actually had patients transfer over to other
 5   doctors in my group.
 6         Q.    We are going to talk about some of
 7   the visits, but there was also a visit in either
 8   October or November of 2005 that a medical
 9   student saw Larry.  I don't see in that office
10   visit any indication that you actually saw Larry
11   on that visit.  Did you?
12         A.    Yes.
13         Q.    Did you countersign --
14         A.    No.
15         Q.    -- any note with regard to that
16   visit?
17         A.    No, I don't believe so.
18         Q.    How is it that we know, other than
19   that's what you should do, that you actually saw
20   Larry on that visit?
21         A.    Well, the policy in my office with
22   medical students was that they came -- once I
23   saw a patient, I went in the room with them and
24   they presented the patient in front of me and we
0030
 1   examined some of the things together and talk in
 2   front of the patient and then end the visit that
 3   way.
 4               And I recall though being involved
 5   in this case.  It would be unlike my policy to
 6   ever have a student see someone without me.  It
 7   never happened.
 8         Q.    On this particular visit with this
 9   particular patient on this particular day, are
10   you able to say, other than it was your policy
11   and practice, are you able to say that you
12   remember Larry being in the office, the medical
13   student seeing the patient, and the events that
14   transpired on that day, or are you just relying
15   upon the note?
16         A.    I recall.
17         Q.    You do recall?
18         A.    Yeah.
19         Q.    Is there something that stands
20   out -- and this again falls in that category
21   that I talked to you about at the beginning of
22   the deposition -- is there anything that stands
23   out from that visit that you remember that isn't
24   perhaps reflected by the medical student's note
0031
 1   considering you didn't make a note on that day?
 2         A.    Let me take one second.
 3         Q.    Sure, take your time.
 4               (Pause.)
 5         A.    No.  I agree with the note.
 6         Q.    Are you able to take yourself back
 7   to that date and picture that visit or are you
 8   relying solely on the written word?
 9         A.    No, I can remember the student
10   because he was -- I can remember being in the
11   room with him and I think the reason I do
12   remember are the labs that came back after the
13   visit.
14               And this always stuck in my mind,
15   this visit.  I see thousands of patients and I
16   can't remember every visit, but this one I
17   remember.
18         Q.    That prompts me to ask you, in terms
19   of your practice, your office was located where?
20         A.    In Chesterland.
21         Q.    What was the name of the practice?
22         A.    This is interesting.  I think it
23   went under Goddard Medical Company, but I'm part
24   of University Hospitals Medical Practices.
0032
 1         Q.    I notice there are different
 2   documents that have different things written on
 3   it.
 4         A.    When I left Lake, that whole lawsuit
 5   I mentioned, part of it was done when I left
 6   Lake to be in independent practice.  And it was
 7   an attempt by the lawyers to try to make me an
 8   independent to avoid a noncompete and that's how
 9   I moved to Chesterland.
10               Even though there is Goddard Medical
11   Company, I'm really a University Hospitals
12   medical employee.
13         Q.    So that where you would see patients
14   would be the Chesterland office?
15         A.    Yes.
16         Q.    Where Dr. Pawlicki saw Larry in
17   January was the Chardon office?
18         A.    I believe so.
19         Q.    Did you ever see Larry during your
20   physician/patient relationship at any office
21   other than the Chesterland office?
22         A.    I believe I saw him when I was in
23   Chardon, one of the Chardon offices I was in,
24   whether I was with PrimeHealth, with Lake or
0033
 1   University Hospitals.
 2         Q.    This would have been earlier?
 3         A.    Earlier.  Yeah. Before 2005.
 4         Q.    Is that when your association with
 5   Lake ended?
 6         A.    You know, I would have to go back in
 7   the records.  I believe it was 2003, 2004,
 8   somewhere in there.
 9         Q.    Fair enough.  Did you ever meet
10   Larry's wife Susie?
11         A.    Yeah.
12         Q.    I don't know whether she was or
13   wasn't a patient of yours, but did you ever see
14   her as a patient?
15         A.    I believe I did.
16         Q.    I'm not going to ask you to talk
17   about anything, but you do have an independent
18   recollection of seeing her in a
19   physician/patient relationship?
20         A.    Yeah.
21         Q.    Do you have a recollection of having
22   any conversations with Susie, not about her
23   health but about any aspect of what was going on
24   with Larry while he was being seen by you prior
0034
 1   to his diagnosis?
 2         A.    You know, I can't recall when she
 3   was in the office with him.  But the only
 4   recollection I have is that they were frustrated
 5   by his back pain.  And that I can remember
 6   talking to her that the workup at University
 7   Hospitals hadn't found anything and they were
 8   frustrated by all the testing.  And as far as it
 9   comes to Larry, that's all I can recall.
10         Q.    Do you recall having a conversation
11   with Susie after the diagnosis was made where
12   you indicated something to the effect that you
13   knew that there was something going on with
14   Larry, you just couldn't put your finger on it?
15         A.    I can remember talking to her about
16   it afterwards, but I can't recall exact words of
17   what was said.
18         Q.    So if she were to testify something
19   to that extent that you had a conversation
20   afterwards and that you knew something was going
21   on but weren't able to put your finger on it,
22   would she be off base with that kind of a
23   statement?
24         A.    No.  I may have said that.
0035
 1         Q.    Do you remember any specifics of
 2   conversations that you had with Susie
 3   afterwards?
 4               And let me give you the context.
 5   Obviously he gets transferred to University
 6   Hospitals.  He has mitral valve damage as a
 7   result of the bacterial endocarditis; correct?
 8         A.    Correct.
 9         Q.    There had to have been, correctly or
10   incorrectly asserted, some frustration by Larry
11   and/or his wife over how he got to that point.
12   Do you recall any frustration over why this
13   wasn't picked up sooner?
14         A.    After the surgery and that, you
15   mean?
16         Q.    Yes.
17         A.    I just can't recall exact
18   conversations afterwards.
19         Q.    But you do remember the general
20   nature of some frustration as to why his
21   symptoms weren't appreciated earlier?
22         A.    You know, I can remember seeing her
23   at the hospital and she seemed frustrated, but I
24   just can't recall any detail.
0036
 1         Q.    Okay.  She worked at Geauga
 2   Hospital; correct?
 3         A.    Yeah.
 4         Q.    What was her position there, as best
 5   as you can recall?
 6         A.    I believe it was head of
 7   registration.
 8         Q.    What kind of relationship did you
 9   have with her?  Not in the physician/patient but
10   just from a professional level.
11         A.    I just knew her there.  We had done
12   quality improvement projects that she had been
13   part of.  But other than that, not much more
14   than that.
15         Q.    Did you get along okay with her?
16         A.    Yeah.
17         Q.    I will tell you I have not met
18   Susie, so I'm trying to get a sense of whether
19   she was appropriate with her concerns and issues
20   that may have been asked about her husband as he
21   was undergoing surgery or did she appear to be
22   inappropriate with her concerns.
23         A.    I think she was appropriate, both
24   during that fall and after the surgery.  I mean,
0037
 1   her husband was having major surgery and she
 2   seemed appropriate to me.
 3         Q.    When is the last time you had any
 4   contact with either Larry or Susie?
 5         A.    I think the day she retired I may
 6   have seen her in the hallway at Geauga.  I don't
 7   know if that's true or not.  That's the only
 8   recollection I have.
 9               And then I think there might have
10   been some phone messages after the surgery, but
11   I don't recall anything else.
12         Q.    After Larry's surgery, did you ever
13   see him again as a patient?
14         A.    I looked in my records.  I just
15   don't see an office note.  I don't recall it.
16         Q.    Do you have any recollection of
17   having any discussions with Larry after he was
18   admitted to University Hospitals relative to --
19   I'll give you sort of a laundry list of
20   things -- when he most likely developed the
21   bacterial endocarditis?
22         A.    I just don't recall.
23         Q.    Do you have a recollection of having
24   any discussions with Larry relative to when he
0038
 1   suffered the irreparable harm to his mitral
 2   valve?
 3         A.    Repeat that again, I'm sorry.
 4         Q.    Do you recall -- and you may or may
 5   not have had these discussions -- any
 6   discussions with Larry about when the
 7   irreparable -- the damage that was not
 8   reversible to the mitral valve occurred?
 9         A.    No, I don't recollect it.
10         Q.    Any such conversations with Susie on
11   either of those points; when he developed the
12   bacterial endocarditis or when the mitral valve
13   was irreparably harmed?
14         A.    No.  I may have had a conversation
15   looking back at the events that occurred and
16   something to the effect that she had said I
17   wondered what happened along the way, but other
18   than that, I don't recall any details.
19         Q.    What is 6-Sigma methods?
20         A.    That's a quality improvement
21   methodology that GE uses.  It's just an
22   organized set of steps and tools that you go
23   about solving quality improvement projects in
24   the hospital, or any organization I should say.
0039
 1         Q.    Is this something you have created
 2   or something you have adopted?
 3         A.    We have adopted.
 4         Q.    My next series of questions, just to
 5   focus you in, are going to deal with the
 6   particular office visits.  So by all means,
 7   refer to the office notes and then keep in mind
 8   as I ask you questions if there is something
 9   that triggers a recall in your mind, such as
10   that November visit with the medical student,
11   feel free to tell me, I know it's not written
12   there but I remember the following.  Okay?
13         A.    Yes.
14         Q.    First, tell me, when did you first
15   become Larry's physician?
16         A.    I'll go back through the chart here.
17   My earlier note is March 31st, 2003, so I'm
18   going to assume that's when I became his
19   physician.
20         Q.    What was the medical history on the
21   patient at that time?
22         A.    He presented with cough and cold
23   symptoms, felt like it was going down his chest,
24   and he was concerned about pneumonia.
0040
 1               I think I diagnosed him with
 2   sinusitis, bronchitis, and he stated that
 3   Z-Packs had worked well before and we prescribed
 4   that and mucous thinner, Humibid.
 5               (Discussion off the record.)
 6         Q.    My notes show that Larry had had a
 7   history of hernia repair.  Was that prior to
 8   treatment of him?
 9         A.    I'm sorry, I want to take a look.
10               (Pause.)
11         A.    From what I can tell.  I don't see
12   it documented, so I'll assume it was before.
13         Q.    Did Larry have a history of smoking?
14         A.    I believe he did.
15         Q.    Did he have a diagnosis of chronic
16   obstructive pulmonary disease?
17         A.    I don't believe I gave him
18   officially that diagnosis.  Let me look through
19   this.  Hold on one second.
20         Q.    Sure.  Take your time, doctor.
21               (Pause.)
22         A.    I don't see a document, so --
23         Q.    All right.  I'm going to fast
24   forward from '03 up to '05.
0041
 1         A.    Okay.
 2         Q.    And I want to talk about the June 25
 3   office visit.
 4         A.    June 28th.
 5         Q.    I'm sorry, June 28, '05 office
 6   visit.
 7         A.    Okay.
 8         Q.    It appears that prior to that visit,
 9   you had seen him on January 25, '05.
10         A.    Yeah.
11         Q.    And when he presented on June 28th,
12   it appears that he had hot and cold chills,
13   aches, perfuse sweating, and you did certain
14   testing on him on that visit; correct?
15         A.    Yes.
16         Q.    What was your diagnosis -- what was
17   within your differential as of June 28th, 2005?
18         A.    Well, at that time he presented with
19   fever, chills and felt also he may have been
20   getting short of breath at times.
21               My impression plan was cough,
22   viral-like symptoms, fever, general malaise,
23   thought maybe bronchitis, possibly infection.
24               Whenever I hear shortness of breath,
0042
 1   if I'm concerned, kind of just a cover-all
 2   basis, I'll get an echo with doppler, meaning is
 3   there any problems with his valve or heart
 4   causing a shortage of breath.  It may have
 5   seemed to me it was just more than what I would
 6   have expected I thought he was telling me.  And
 7   the lab work as well would have been that I felt
 8   that it just seemed a little bit more to me than
 9   simple bronchitis and cold.
10         Q.    So you basically wanted to look at
11   potentially serious causes for the shortness of
12   breath so that you wouldn't miss something; is
13   that a fair statement?
14         A.    Right.
15         Q.    And as a family practitioner, you
16   are trained to be a diagnostician, are you not?
17         A.    Yes.
18         Q.    You look at, from a differential
19   standpoint, you look at serious things down
20   to --
21         A.    Right.
22         Q.    -- benign causes, but you certainly
23   look to rule out the more serious ones first and
24   then look down the list to the more benign ones;
0043
 1   is that a fair statement?
 2         A.    Yes.
 3         Q.    Now, in your physical exam, you
 4   have -- and I have noted this throughout a lot
 5   of visits -- it looks like you have some fairly
 6   standard language that you use in terms of vital
 7   signs noted, lungs clear to auscultation, no
 8   rales or rhonchi, and continuing on.
 9               I presume that you do an
10   auscultation?
11         A.    Yes.
12         Q.    You listen to the heart; you listen
13   to the lungs.  You don't just --
14         A.    No.
15         Q.    -- dictate this or have your office
16   staff put this physical exam in without actually
17   doing an exam?
18         A.    No.  I do the exam.
19               I will say, when we do the exam, and
20   we say it's -- I forget the term.  We don't use
21   them anymore -- we have a module and so I do the
22   module and if there are any problems, I'll say,
23   but I heard a murmur, I heard this.  So anything
24   documented, I examine.
0044
 1         Q.    So at that time you ordered a chest
 2   x-ray and probably did an EKG right in the
 3   office?
 4         A.    Yeah.
 5         Q.    And the Avelox, that is an
 6   antibiotic for bronchitis?
 7         A.    Yeah.  For bronchitis or for
 8   pneumonia.  Especially in a smoker.
 9         Q.    The EKG that was done, did it show
10   any concerning changes?
11         A.    I'll have to find the copy.
12               (Pause.)
13         A.    From June 28th, the copy that I have
14   here, I didn't see anything outstanding.  The
15   computer had read it as normal, but then we read
16   it as well and I didn't see anything that looked
17   outstanding.  But an echo had been ordered as
18   well. You can take a look.
19         Q.    As I put together your office notes,
20   I see that, and correct me if I am wrong, but
21   looking at the set that was provided to me, we
22   have what says Goddard Medical Company
23   Incorporated and it's got June 28th, 2005.  So
24   this would correspond --
0045
 1         A.    Yeah.
 2         Q.    -- with Larry's visit on June 28th,
 3   2005; is that correct?
 4         A.    After I got done seeing a patient,
 5   that sheet on the back side I listed what we
 6   needed to do for that patient for that day.
 7         Q.    So when I flip this over and I see
 8   six items on the back of the sheet, would this
 9   correspond with the June 28th, 2005 visit?
10         A.    Yes.
11         Q.    So the first would be -- and help me
12   out. If you will read what the number one says.
13         A.    Refer, R-E-F, Dr. DeBlasio.  And
14   then colonoscopy.  I believe I was trying to get
15   him updated with his colonoscopy, have him
16   rechecked.
17         Q.    Who is Dr. DeBlasio?
18         A.    He is a general surgeon in Geauga
19   County that does a lot of GI work.
20         Q.    So one of the things independent of
21   his symptoms that brought him to you was -- and
22   correct me if I am wrong -- you said, Larry, you
23   need to have a screening colonoscopy done?
24         A.    Yeah.
0046
 1               Let me, before I answer that, let me
 2   look at something else real fast in his lab
 3   work.
 4         Q.    Again, some of my questions that I
 5   give to you, I may be implying an answer and
 6   don't feel as if you have to agree with it
 7   simply because it sounds like I know what I'm
 8   talking about.
 9               Kris will tell you I hardly ever
10   know what I'm talking about, so if I'm wrong on
11   why that referral was made, tell me.
12         A.    No, I believe it was just for
13   screening.  The only other time I'll do it is if
14   someone has anemia in the past, and I don't
15   believe he did, so I'm going to say it was just
16   a screening test.
17         Q.    Next on the list would be number two
18   and it looks like this is some blood work that
19   you had ordered?
20         A.    Yeah.
21         Q.    Tell me what this blood work is.
22         A.    CBC or a blood count; TSH to check
23   his thyroid; BMP to check his electrolytes,
24   kidney function and sodium; and then a sed rate.
0047
 1         Q.    And in this particular patient at
 2   this particular time, why would you have ordered
 3   a sed rate?
 4         A.    I'll look back at my note.
 5               (Pause.)
 6         A.    I'm not sure exactly why I put a sed
 7   rate in there, because I would have only done
 8   that if I was worried, as I recollect, if I was
 9   worried about his back pain and he mentioned it
10   and doing it for workup for back pain for
11   someone in that age group, but I can't recall
12   from my note why I did it.
13               My lab sheet, the order sheet I did,
14   I would've put all the diagnoses I was worried
15   about.
16         Q.    On that particular day he didn't
17   have any back pain, at least subjectively?
18         A.    Not recorded, yeah.
19         Q.    So an ESR you would be looking for
20   markers that would be reflective of some
21   inflammatory process; correct?
22         A.    Yeah.
23         Q.    Also ESR elevated could be a marker
24   for an infectious process as well; correct?
0048
 1         A.    Yeah.
 2         Q.    That's a yes?
 3         A.    Yes.
 4         Q.    So just looking at the back of this,
 5   that's the second thing, so you wanted some
 6   blood work and you've described what you wanted.
 7               And the third was what?
 8         A.    Follow-up next week.
 9         Q.    And so it says follow-up next week,
10   7-5-05?
11         A.    F/U and then next week.
12         Q.    And four, chest x-ray?
13         A.    Yeah.
14         Q.    And you have a check next to that.
15   What does that mean?
16         A.    That was done by my staff to say
17   they had done it, that it was completed.
18         Q.    Number five, EKG?
19         A.    Right.
20         Q.    And the checkmark next to it meaning
21   it was done.
22               And then six, if I'm reading that
23   correctly, it says echo with doppler.  And then
24   there is a check and tell me what that says.
0049
 1         A.    Shortness of breath.  That's why I
 2   was ordering the echo with doppler and Dr. Smith
 3   was the group that I was referring to to have
 4   the test done.
 5         Q.    So the echo itself would have been
 6   done outside of your office?
 7         A.    Yes.
 8         Q.    Who is Dr. Smith?  Do you remember
 9   his first name?
10         A.    Dr. David Smith.
11         Q.    Is he a cardiologist?
12         A.    Yeah.  His group, referred the echo
13   to do to the group.
14         Q.    You referred him to Dr. Smith's
15   group to do the echo?
16         A.    Yeah.  Dr. David Smith.
17   Dr. Andy Nira and Dr. Krishnan Sundararajan.
18   Don't ask me to spell it.
19         Q.    Just so I'm clear, on June 28th,
20   2005, certain things were completed, certain
21   things were ordered or referred out?
22         A.    Right.
23         Q.    Okay.  Now, we know he came back on
24   July 5.
0050
 1         A.    Right.
 2         Q.    And he presented at that time for
 3   follow-up on tests that had been done; correct?
 4         A.    Yes.  And the follow-up was more to
 5   see that clinically he was doing -- that he was
 6   better.
 7               If I follow up in a week, I must
 8   have been concerned and I wanted to make sure he
 9   was better and that's the main reason for the
10   follow-up.
11         Q.    Sure.  Now, when you saw him on July
12   5th, you would have had the echo report back
13   from the cardiology group; correct?
14         A.    Not necessarily. Usually it takes a
15   couple weeks to get that report back.
16         Q.    Do you have a copy of the echo
17   report in your chart?
18         A.    I believe I do.  Let me find it.
19   This copy got messed up.  If I can use this one.
20         Q.    Sure.
21         A.    Now, this is the one -- this is the
22   pulmonary.  Here it is right here.  Yeah.
23         Q.    And if we are looking at the same
24   thing in the upper right-hand corner, it looks
0051
 1   like the echo was done on June 29th, 2005?
 2         A.    Correct.
 3         Q.    In your chart or on Mr. Treu's
 4   chart, are you able to determine when it was
 5   that the report which is typed June 29th --
 6         A.    Dictated, I think.
 7         Q.    -- when a copy was sent to you?
 8         A.    No.
 9                     - - - - -
10              (Thereupon, GODDARD Deposition
11               Exhibit 2 was marked for
12               purposes of identification.)
13                    - - - - -
14         Q.    Doctor, just so we are clear, is
15   Exhibit 2 a copy of what you are looking at?
16         A.    Yes, it is.
17         Q.    And in the lower right-hand corner,
18   below Dr. Sundararajan's name, is that your
19   signature in the lower, or your initials in the
20   lower right-hand corner?
21         A.    My initials.
22         Q.    Indicating that you had reviewed the
23   report; correct?
24         A.    Right.
0052
 1         Q.    Is there any way for you to tell me
 2   whether you had that as of the July 5th office
 3   visit?
 4         A.    My note on July 5th, I have my
 5   history and physical but my assessment plan is
 6   not dictated.
 7               But if I could look at the sheet
 8   that corresponds to that day.  I just want to
 9   take a look at it.
10               (Pause.)
11         Q.    Take a look at whatever you need to
12   to try to piece this back together.  This may
13   fall in the category of you remember
14   independently or you don't remember
15   independently, but use whatever resource you
16   need to try to answer that question.
17         A.    You know, I don't recollect having
18   that report in front of me at the time.  I do
19   see my sheet that corresponds to when he was
20   discharged.  When I got done with him I listed
21   the things that I wanted the nurse to do.  I
22   have that in front of me.
23               It's usually reflective of my plan
24   for that day, and that was getting more blood
0053
 1   work, x-rays and then follow up in four to six
 2   weeks to follow back up on anything that --
 3   usually I'll have a follow-up appointment to
 4   follow up on anything missing or to make sure he
 5   was doing okay.
 6         Q.    Does that note, which again would be
 7   the flip side of the Goddard -- what's the name
 8   of the group again?
 9         A.    Medical.
10         Q.    -- Medical, it would be the flip
11   side of that July 5th, 2005 Goddard Medical
12   Group note; true?
13         A.    True.
14         Q.    Is there any reflection in that note
15   that would indicate that you did or did not have
16   the echo results back?
17         A.    No.
18         Q.    Now, I did note in the chart that it
19   appears that part of the order from June 28th
20   included a chest x-ray and it looks like the
21   chest x-ray results were faxed to you on June
22   29th.  This would be what you had ordered on
23   June 28th.  It looks like the hospital faxed you
24   the results on June 29th; is that correct?
0054
 1         A.    Correct.
 2         Q.    And then you have a note on that
 3   document, it looks like on July 5th?
 4         A.    I think what this is, I put normal,
 5   meaning relatively it was okay for him, what I
 6   expected.  My initials.
 7               This is what Dr. Goddard 7-7-05
 8   means; he is coming back to see me.  My nurse
 9   would sometimes do that to tell me he has a
10   follow-up appointment, to come back and see me.
11         Q.    So you would have had the chest
12   x-ray result back certainly on or before the
13   July 5th visit; is that correct?
14         A.    Yeah.
15         Q.    And then on that x-ray report, you
16   have your initials in the lower right-hand
17   corner, which would signify that you had
18   reviewed the report; correct?
19         A.    Correct.
20         Q.    Whether you reviewed it prior to or
21   at the time of Mr. Zerbian's visit, do you have
22   any recollection?
23         A.    Most likely prior, because it
24   wouldn't get followed unless I put my initials
0055
 1   on it.
 2         Q.    Now, the labs -- I'm sorry, the
 3   echocardiogram that was performed on June 29th,
 4   it did reflect that Larry had borderline mitral
 5   valve prolapse; correct?
 6         A.    If I can see that.
 7               (Pause.)
 8         A.    Yeah.
 9         Q.    And also it indicated redundant
10   mitral leaflets?
11         A.    Yeah.
12         Q.    And mild mitral regurgitation?
13         A.    Yes.
14         Q.    Were any other of his cardiac valves
15   demonstrating any regurgitation?
16         A.    He had mild tricuspid regurgitation.
17   His aortic valve was read as normal and pulmonic
18   valve was normal as well.
19         Q.    Now, given the echo, can you explain
20   to me during your visits why you weren't able to
21   detect any form of a murmur?
22         A.    In my experience as a family doctor,
23   we have a lot of echoes that come back with mild
24   regurgitation or mild tricuspid regurgitation or
0056
 1   mitral regurgitation and often we don't hear a
 2   murmur on exam.
 3         Q.    Is the finding of mild mitral
 4   regurgitation of any clinical significance to
 5   you as a family practitioner?
 6         A.    In the case of Larry, given his
 7   symptom complex and what I was worried about,
 8   the mild mitral regurgitation was not a concern
 9   of mine at the time.
10         Q.    In the setting of a patient who
11   demonstrates an acute onset of infection or
12   inflammatory conditions, is mild mitral
13   regurgitation of any clinical significance to
14   you?
15         A.    Well, if he didn't have a diagnosis,
16   if somebody had an infection and didn't have a
17   diagnosis and we started to go through your list
18   of possibilities, it may.
19               But it's a real common finding in
20   these echoes the way they are read.  I mean, a
21   lot of them come back with mild regurgitation.
22         Q.    I know down the road -- and I'm
23   jumping ahead for a moment and I'm warning you
24   that I'm jumping ahead.
0057
 1         A.    Thanks.
 2         Q.    There was some reference to some
 3   tooth problems or perhaps even a dental
 4   infection.
 5               Do you recall any reference to him,
 6   to Larry having some problems with his
 7   dentition?
 8         A.    Yeah.  I believe he had an infected
 9   tooth.
10         Q.    Is an infected tooth of any clinical
11   significance in a patient who has mitral
12   regurgitation?
13         A.    Well, again, let me -- to see mild
14   regurgitation echos in my practice, we see this
15   a lot. I have a lot of people with dental
16   problems.  It's rare to see them, you know, have
17   a tooth infection result in an infection in a
18   mitral valve giving you a mitral valve
19   regurgitation because we see it so often in our
20   echo reports.
21         Q.    Let me refine that a bit.  In
22   addition to the mild mitral regurgitation, from
23   a pathophysiologic standpoint, the patient that
24   has some redundant mitral leaflets, as well as
0058
 1   borderline mitral valve prolapse, is a patient
 2   who has a dental infection with this
 3   physiological finding of any clinical
 4   significance to you as a family practitioner?
 5         A.    Well, you know, any irregularities
 6   in the heart tissue or anything like that,
 7   anything where a bacteria could seed, you would
 8   always worry a bacteria could get stuck there
 9   and start growing.  So he would have to have the
10   bacteria in his blood and then seeded and then
11   get it stuck onto a valve.
12         Q.    Did you refer Larry for cardiac
13   management by Dr. Sundararajan or did you just
14   refer him for the echo?
15         A.    At the time just for the echo to see
16   what was going on.
17         Q.    And did you refer him for any
18   clinical consultation or treatment at any time
19   prior to the diagnosis of his bacterial
20   endocarditis?
21         A.    No.
22         Q.    In a patient who has either aortic
23   valve prolapse or mitral valve prolapse with
24   regurgitation and any redundant leaflets, are
0059
 1   there certain guidelines that you are aware of,
 2   and were aware of back in 2005 as it relates to
 3   the prevention of infectious endocarditis?
 4         A.    You mean as far as prophylactic
 5   antibiotics?
 6         Q.    Yes, sir.
 7         A.    I would have to refer to the
 8   guidelines.
 9         Q.    Did you at any time based upon
10   Larry's history, which included obviously his
11   diabetes and the findings on the echo, did you
12   recommend to Larry that he follow any type of an
13   American Heart Association prophylactic regimen
14   with regard to dental care?
15         A.    Well, I believe on July 5th I didn't
16   have the echo, and the follow-up appointment
17   which would have been August, I would've gone
18   over the echo with him and because of the
19   cardiomyopathy, I would've referred him to
20   probably a cardiologist.
21         Q.    We will talk about that in a moment
22   in terms of that visit.  But you are not sure
23   whether you had the results back by the July
24   visit, but is it fair to say you had it back by
0060
 1   the August visit?
 2         A.    He didn't come in.  I don't believe
 3   he came in in August.  I think I saw him July
 4   5th and the next time I saw him was October 6th.
 5         Q.    So after he had been in the hospital
 6   and actually discharged from Heather Hill?
 7         A.    Yeah.
 8         Q.    Okay. The labs that were drawn in
 9   June or July showed an elevation in the monocyte
10   count.  Can you tell me of what significance
11   that is?
12         A.    If I can find it.  Which date is
13   that?
14         Q.    June -- let me get the lab in front
15   of me.  I think it was the June 28th labs.
16         A.    Okay.  I'm sorry, my chart when they
17   put it back together --
18               (Pause.)
19         A.    I found it.
20         Q.    On June 28th -- if I said June 25, I
21   meant June 28th -- the monocyte was 15.  Of what
22   significance, if any, is that in light of his
23   clinical symptoms?
24         A.    You know, given -- he had a
0061
 1   respiratory infection, you know, possibly
 2   pneumonia, I probably would've or at the time
 3   assumed that that went more with a pulmonary
 4   infection.
 5         Q.    And on those labs, on the lower
 6   right-hand corner it says visit with Dr. Goddard
 7   July 5th.  So correct me if I am wrong, you
 8   likely would have reviewed the labs with Larry
 9   on that July 5th visit?
10         A.    Yes.  Labs and x-rays got back to us
11   quickly.
12         Q.    Okay.  Whether the echo was there,
13   we just don't know?
14         A.    It would be unlikely because it
15   usually took several weeks before we got them
16   back to us.
17         Q.    Okay.  When you saw Larry on July
18   5th, you on physical exam have the same
19   language, but it's your testimony that you would
20   have auscultated and listened for any potential
21   murmur?
22         A.    Yes.
23         Q.    And did not hear one?
24         A.    Yes.
0062
 1         Q.    Did you change the treatment regimen
 2   in any respect as of July?
 3         A.    Again, my note is incomplete.  But
 4   if I look at the sheet that corresponds with the
 5   discharge that day, I didn't, as far as
 6   respiratory infection, didn't order any more
 7   tests or anything new, but at that time wanted
 8   to get back to his diabetes and ordered blood
 9   work for that.
10               He was complaining about arthritis,
11   I believe, in my note, and again x-ray of the
12   lumbar spine, cervical spine because of the pain
13   he was having and asked him to come back to see
14   me in four to six weeks and looks like he made
15   an appointment for August 19th.
16         Q.    Again, just as we look, when we look
17   at the record -- this is on the back of the
18   Goddard Medical Company note for July 5th -- you
19   have three items marked; fasting hemoglobin --
20         A.    A1C.
21         Q.    -- A1C.
22         A.    BMP for electrolytes.
23         Q.    Okay.
24         A.    Lipid panel.
0063
 1         Q.    And PSA for prostate?
 2         A.    Yeah.
 3         Q.    And was he to have this all done at
 4   Geauga Hospital?
 5         A.    We had lab and x-ray in the
 6   Chesterland office and so basically go to our
 7   office or to Geauga Hospital.
 8         Q.    And the cervical spine is number
 9   two.  X-ray of the lumbar spine, as well.  And
10   then you have positive something --
11         A.    Pain.
12         Q.    And then what; decreased range of
13   motion?
14         A.    Yeah.  And that was to give them a
15   diagnosis to put on the labs.
16         Q.    Did he in fact have pain in the
17   cervical or the lumbar spine when you saw him on
18   July 5th?
19         A.    From my note, I think general
20   malaise is much better but still with some back
21   pain, lower back surface pain.  I was concerned
22   about worsening arthritis and pain in left
23   shoulder is noted as well.
24         Q.    So if I'm following the chronology,
0064
 1   he was to return in four to six weeks on August
 2   19th, and we know based upon what transpired
 3   that he didn't return on August 19th.  Instead,
 4   in the early part of September he presented to
 5   the emergency room at Geauga Hospital; is that
 6   right?
 7         A.    Correct.
 8         Q.    And doctor, I think Dr. Pawlicki and
 9   others were involved in the admission of the
10   patient for that particular hospital encounter?
11         A.    Yeah.
12         Q.    Do you remember having any
13   information, being contacted by Dr. Pawlicki at
14   that time relative to your patient when he went
15   to the emergency room or when he was admitted to
16   the hospital?
17         A.    I believe the emergency room may
18   have called me to let me know he was being
19   admitted and then Dr. Pawlicki was, I think,
20   rounding in the hospital for us that week and
21   then took over the case.
22         Q.    Do you independently remember that
23   or is that just because you see your name
24   referenced?
0065
 1         A.    I thought there was a note from the
 2   ER, a note from the ER doctor saying they talked
 3   to me.
 4               MR. TREU:  That was October.
 5         A.    October, okay.  I may have gotten
 6   the dates mixed up between September and
 7   October.  I'll say I don't recall that.
 8         Q.    Not a problem.
 9               What significance, if any, in July
10   did you place on the elevated monocyte, the
11   elevated bands and the low neutrophils?
12               I know I isolated the monocytes
13   before.  But of what significance, taking the
14   elevated bands and the low neutrophils in
15   conjunction with the elevated monocyte, what
16   significance, if any, did you place on those?
17         A.    I thought from my clinical
18   experience it correlated with an infection of
19   the lungs that we had treated and that he was
20   doing better.
21         Q.    And what was the antibiotic that you
22   had given to him before?
23         A.    Avelox.
24         Q.    How long had you had him on that?
0066
 1         A.    When he had the blood test done?
 2         Q.    Yes.
 3         A.    Let me check the date of that.   The
 4   blood test is dated June 28th, I believe.  So I
 5   think I started the antibiotic --
 6         Q.    Would it have been a seven day or 14
 7   day regimen?
 8         A.    Ten days.
 9         Q.    Ten days?
10         A.    One second.  I keep copies of my
11   prescriptions.  So it would have been started on
12   June 28th.
13         Q.    And you have it times ten days?
14         A.    Times ten days, yeah.
15         Q.    Now, in terms of Larry's diabetes,
16   did that at all complicate your management of
17   what you perceived to be a pulmonary or an upper
18   respiratory infection at that time?
19         A.    Let me look again.  June 28th labs?
20               June 28th, you know, his lab work
21   shows glucose was 237 and diabetes not well
22   controlled is a problem for any infection.
23         Q.    So from a clinical management
24   standpoint, it presents as a factor that you
0067
 1   have to take into account in terms of trying to
 2   manage and treat the infection because they're
 3   immunosuppressed?
 4         A.    That's why I prescribed Avelox,
 5   which is a pretty strong antibiotic.  Given he
 6   had a smoking habit and diabetes, I wanted to
 7   make sure we treated it well.
 8         Q.    So the smoking and diabetes are a
 9   setup for more difficult management of
10   infection?
11         A.    Yes.
12         Q.    And at that point in time, with the
13   more difficult management of infection, if you
14   had been aware of the echo findings in July,
15   would you have likely altered the treatment that
16   you would have provided to him?
17         A.    No.
18         Q.    Tell me why.
19         A.    My clinical experience is that echo
20   is a common finding.  We see a lot of mild
21   mitral regurg or atrial regurg.  The
22   cardiomyopathy is much more concerning to me
23   than that.
24               Had I had the echo in front of me,
0068
 1   the only thing I would have done differently
 2   given the cardiomyopathy, I would've asked him
 3   to see the cardiologist for a follow-up
 4   appointment.
 5         Q.    What do you believe was the cause of
 6   his cardiomyopathy?
 7         A.    One of the concerns would be does he
 8   have vascular disease, small vessel disease
 9   related to his diabetes causing blockage in the
10   small arteries, could that be leading to the
11   cardiomyopathy.  His left HM was a little bit
12   enlarged as well, so I would've wanted the
13   cardiologist to evaluate it further.
14         Q.    Did you at any time refer Larry or
15   consult with an endocrinologist as it relates to
16   his diabetes?
17         A.    My policy is if a patient is seeing
18   me regularly and I have adjusted their
19   medications and their hemoglobin A1C is not
20   where it should be, and I'll offer them insulin.
21   At any time they can always see a
22   endocrinologist.  But if I can't get them under
23   control, they will see an endocrinologist.
24               I think for Larry we were still
0069
 1   trying -- I hadn't seen him -- and we were
 2   trying to get a handle on his sugars and what we
 3   were going to do next with him.
 4         Q.    There certainly wasn't anything
 5   preventing you as of July from referring him to
 6   an endocrinologist; true?
 7         A.    Well, I didn't have his hemoglobin
 8   A1C.  I had ordered it to see where he was,
 9   overall blood sugars.
10               If it came back 6.9, even though he
11   was high that one day, I'd say, well, we must be
12   doing okay.  If it came back real high and I
13   couldn't work something out with Larry, or if it
14   was super high, I would try to get one in.
15               But there is a shortage of
16   endocrinologists and they are very hard to get
17   into.  So we try to do everything we can.  So if
18   they are going to go we have already tried every
19   therapy we can to get them under control.
20         Q.    Did you at any time prior to his
21   diagnosis of the infectious endocarditis request
22   an endocrine consult on Larry?
23         A.    No, not that I'm aware of.
24         Q.    Was there anything at any point in
0070
 1   time, notwithstanding the shortage of
 2   endocrinologists, for you not suggesting a
 3   consult?
 4         A.    Something blocking?
 5         Q.    Yes.
 6         A.    No, nothing was blocking me from
 7   referring to an endocrinologist.
 8         Q.    Would it have been reasonable and
 9   prudent to obtain an endocrinology consult?
10         A.    I think it depends.  Let me look at
11   my lab work if I could real quick.
12               Yeah, on 10-6-05 his hemoglobin and
13   A1C is 9.6, which shows he is not in control,
14   but again, my recollection of Larry, he was not
15   taking his medications regularly.  So before I
16   would send him, I would want him to get on his
17   medications regularly so we knew where we were
18   at and that's my recollection in this case.
19         Q.    What date was that again?
20         A.    Ten  --
21               MR. TREU:  October 6th.
22         A.    October 6th.
23         Q.    In fairness to you, that's one of
24   those recollections that you have independent of
0071
 1   the record?
 2         A.    Yes.
 3         Q.    It's not reflected in the record
 4   that the patient is noncompliant or isn't taking
 5   his medications, is it?
 6         A.    Well, I'll read through here a
 7   little bit.
 8               You know, in 2003, there is a note,
 9   Type II diabetes, poor control, hemoglobin was
10   9.9.
11               MR. TREU:  Slow down.
12         A.    Sorry.  He has a new glucometer.
13   Sugar in the 180s.  Discuss referral to an
14   endocrinologist, also including insulin.  Watch
15   sugars for the next few weeks since they may be
16   coming down.  If he stays persistently high,
17   it's just getting insulin instructions and/or
18   endocrinology referral which the patient is
19   requesting.
20               And I believe, though, then there is
21   subsequent lab work that shows hemoglobin came
22   down to 7.3.  My recollection of Larry when I
23   got that was, right or wrong, that he was not
24   compliant; that we had to get to work on that.
0072
 1               But also on his visits, other issues
 2   are coming up that take up office time and other
 3   offices are concentrating on the pain symptoms
 4   at hand.
 5               With a patient office, you have so
 6   much time, so you stall appointments in order to
 7   get caught up on things as well.
 8         Q.    Doctor, correct me if I'm wrong, but
 9   that reference which was earlier in treatment,
10   actually it was Larry that was requesting a
11   endocrinology consult; true?
12         A.    Yeah, from my notes.
13         Q.    Right.  And you instead felt that
14   rather than referring him out, you would
15   continue to manage him at that particular point;
16   true?
17         A.    Let me take a second to look through
18   all that real quick.
19         Q.    Sure.
20               (Pause.)
21         A.    According to my note, I agree with
22   him about seeing an endocrinologist.  I agree he
23   should see one if we can't get him under
24   control.
0073
 1               There is a subsequent hemoglobin I
 2   see that's a little bit later, 7-15-04, where he
 3   is 7.3.  So my understanding is he came down and
 4   came under control, otherwise we would've sent
 5   him to an endocrinologist which is earlier what
 6   I said was kind of how we worked it.
 7         Q.    Just to sort of summarize, and
 8   correct me if I am wrong, but initially Larry
 9   had requested the referral to an
10   endocrinologist.  You didn't necessarily
11   disagree with that but didn't make the referral
12   at that point wanting to see if you could get
13   his hemoglobin under control?
14         A.    If a patient doesn't agree or wants
15   to go see them, we always send them.  I have no
16   reason not to send them to an endocrinologist.
17         Q.    Do you see any indication in the
18   record that you initiated a referral to an
19   endocrinologist like you did to the cardiologist
20   or any of the other doctors that would verify
21   that you acted on his request?
22         A.    Let me go through here real quick.
23               (Pause.)
24         A.    No, not that I see.
0074
 1         Q.    Do you have an independent
 2   recollection of Larry asking you on more than
 3   one occasion questions about why his blood
 4   sugars were not within normal limits?
 5         A.    The question is, was Larry asking me
 6   about why?
 7         Q.    Yes. For example, would he complain
 8   when he came in -- not necessarily complain
 9   about you -- complain that his blood sugars were
10   uncontrolled and wanting to do something to get
11   them under control?  Do you have any
12   recollection along those lines?
13         A.    Nothing that Larry was real
14   aggressive.  You mean, as far as asking me?  I
15   don't recall that at all.
16               My recollection is that I was trying
17   to get him to take better control of the sugars
18   and take his medications.
19         Q.    The hospitalization in September at
20   University Hospitals from September 5 to
21   September 16th, I don't see -- and perhaps you
22   do have it.
23         A.    I do have it.
24         Q.    Do you have the discharge summary?
0075
 1         A.    Yeah.
 2         Q.    Great.  On the discharge summary
 3   that I have, it looks like Dr. Pawlicki,
 4   Dr. Williams, Dr. Ashwath, Dr. O'Hara, and you,
 5   Dr. Goddard, were copied on that.   So you have
 6   a copy of that; correct?
 7         A.    Yes.
 8         Q.    Does your file reflect when you
 9   would have received that discharge summary?
10         A.    Not that I can see.
11         Q.    Now, would you have had this
12   information prior to seeing Larry when the
13   medical student and you saw him on October 6th?
14         A.    I can't recollect and it's not
15   documented in the notes.
16         Q.    Did you see Larry when he was at
17   Heather Hill?
18         A.    No.  I wasn't there yet.
19         Q.    We had had a discussion during
20   Dr. Ashwath's deposition trying to determine
21   what orders had been sent to Heather Hill.
22               MR. MISHKIND: And, Kris, I don't
23   know whether you have been able to nail that
24   down in terms of --
0076
 1               MR. TREU:  No.
 2               MR. MISHKIND:  Fair enough.
 3               MR. TREU:  The simple answer is no.
 4               MR. MISHKIND: I accept that.
 5         Q.    Doctor, I don't think you have seen
 6   Dr. Ashwath's deposition.  We talked about
 7   Dr. Lisgaris suggesting that Larry have weekly
 8   CBCs, ESR, CRP, to assess resolution of any
 9   inflammatory or infectious process.
10               And it talks about Dr. Lisgaris
11   completing a gold form.  I have not seen a gold
12   form in this case that indicates that the folks
13   at Heather Hill were to do weekly CBCs, ESR, or
14   CRP to determine whether he had an inflammatory
15   or infectious process continuing, whether it be
16   diskitis or something else.
17         A.    Okay.
18         Q.    But is it fair to say that if it
19   wasn't by October 6th that certainly by November
20   8th when you saw Larry that you would have had
21   the results of the September 2005
22   hospitalization at UH?
23         A.    I believe so.
24         Q.    And did you also have information
0077
 1   from his rehab stay at Heather Hill in terms of
 2   what labs, if any, had been obtained while he
 3   was at Heather Hill?
 4         A.    I'll look back through my chart real
 5   quick.
 6               I don't see a copy of the Heather
 7   Hill labs in my chart.
 8         Q.    Is it reasonable to state as Larry's
 9   family physician that you, as part of your care
10   of the patient, knew or should have been aware
11   of his hospital stay in September at UH followed
12   by his rehab at Heather Hill?
13               MR. TREU:  Objection.  Go ahead.
14         A.    Usually we get the records sent into
15   us.  If they are not in when we see a patient,
16   Eventually I will have them ordered to send to
17   us.  If we are seeing a patient and we don't get
18   them in there, we will eventually get them to
19   come over.
20         Q.    And do you have any reason to
21   believe that on October 5, when Larry was seen
22   in your office with the medical student -- and
23   was this a female or male?
24         A.    Male.
0078
 1         Q.    Do you have any reason to believe
 2   that you and he were not aware of his recent
 3   history of having been in the hospital and then
 4   having been at Heather Hill?
 5         A.    No.  I think we knew he had been in
 6   the hospital.  Whether we had the actual
 7   discharge summary, I'm not aware.
 8               My recollection though is that he
 9   and his wife had set the workup and everything
10   had been negative and were asked if they had any
11   follow-up appointments and they said, no,
12   that everything had been -- they hadn't found
13   anything in the hospitalization.  So from the
14   history of the patient we had had that.
15         Q.    And that's one of those things that
16   you remember independently?
17         A.    Yeah.
18         Q.    But yet certainly knowing that he
19   had been in the hospital for a week and then
20   discharged from University directly to Heather
21   Hill, you had access to gather information if it
22   was necessary in assessing your patient;
23   correct?
24         A.    Yeah, we would've had them order the
0079
 1   records to come to us.
 2         Q.    And certainly there was nothing
 3   preventing you from finding out what labs had
 4   been ordered, what tests had been ordered, both
 5   at UH and at Heather Hill, and what had been
 6   done for Larry; correct?
 7         A.    Yeah, there was nothing preventing
 8   me from ordering the tests, ordering the records
 9   over.
10         Q.    Is it fair to say that in order to
11   provide reasonable and prudent care, one can't
12   simply rely on a patient to say all of the test
13   results were normal?  If a patient has been in
14   the hospital for an extended period of time and
15   then admitted to a rehab, that there is a duty
16   on your part to follow-up and to get information
17   if you haven't already received it?
18               MR. TREU:  Objection to form.
19         A.    I may have received it.  I think in
20   this case, looking at him, what was going on at
21   the time, that's why the lab work was ordered
22   though because, given his back pain, his age, we
23   were still worried something was going on, so I
24   didn't just rely on the history that everything
0080
 1   was okay. We were still evaluating him further
 2   and then at what time I got the records, I just
 3   can't recall.
 4         Q.    Did you take it upon yourself to try
 5   to determine what course of antibiotics Larry
 6   had been on when he was in University Hospitals
 7   for the possible diskitis?
 8         A.    You know, I remember reading the
 9   discharge summary.  I just don't know at what
10   point I read it or reviewed it.  I don't think
11   at the time of this I had all the information.
12         Q.    When, if you know, did you become
13   aware of the fact that the gallium scan that was
14   done was at least suggestive of an infection in
15   the disk space?
16         A.    I will have to review that again and
17   see.
18               (Pause.)
19         A.    From the discharge summary I have --
20   though I just see the MRI report.  I'm not sure
21   I see the other one where it mentions the
22   gallium.  I would've gone by the discharge
23   summary, so I'm not sure.
24         Q.    Okay.
0081
 1               MR. TREU:  With respect to some
 2   prior questions about what you knew in this
 3   sheet, it looks like there is some information
 4   from phone calls or something.
 5         Q.    What is it that you are referring to
 6   or your attorney was referring to, doctor?
 7   Again, I want to give you every opportunity if
 8   there is some information that you had.
 9               MR. TREU:  There was some questions
10   about what he knew or didn't know in October and
11   there are some notes that seem to be around the
12   end of September indicating he had just gotten
13   out of Heather Hill.
14         A.    Yeah, there are notes from my staff
15   here. I can read them to you.
16               Just got out of Heather Hill Friday.
17   Back spasm started yesterday.  Better today.
18   Unable to ambulate.  UH doctors suggest he have
19   another MRI before his block on Saturday.
20   Seeing the chiropractor Tuesday.  And listed his
21   medications.  And then in my handwriting there
22   is a -- I think my nurse must've taken this
23   down -- I asked does he have an appointment here
24   to follow up with me.
0082
 1         Q.    Let me see that just so I can get to
 2   the same page.
 3               MR. TREU:  Do you have it, Howard?
 4               MR. MISHKIND: This is another one of
 5   the pages. I looked and compared it.  This was
 6   not provided to me, but we will make a photocopy
 7   of this, as well.
 8               (Pause.)
 9                     - - - - -
10              (Thereupon, GODDARD Deposition
11               Exhibit 3 was marked for
12               purposes of identification.)
13                    - - - - -
14         Q.    Doctor, I'm going to show you what
15   is marked for identification as Plaintiff's
16   Exhibit 3 in the Goddard deposition.  This is a
17   page that, again, was unfortunately not in the
18   set of records that I received, but it looks to
19   be a note with some handwriting on it that I
20   want to go over.
21               This appears to be after Larry was
22   discharged.  Would it have been from University
23   as well as from Heather Hill?
24         A.    Yeah.  The date up here is September
0083
 1   26th, Monday, and if I look here -- it looks
 2   like it was a message.
 3               If I'm looking at this right, I
 4   think my staff called and Susie must have
 5   answered and given them this information.  Just
 6   got out of Heather Hill Friday.  Back spasm
 7   started yesterday.  Better today.  Unable to
 8   ambulate.  UH doctors suggest he has another MRI
 9   before his block on Saturday.  And seeing the
10   chiropractor Tuesday.
11         Q.    And the line from where it says
12   before his block on Saturday, what does that
13   line lead to?
14         A.    I think I wrote okay, number one.
15   And then number two, appointment here or
16   Pawlicki.  There is answer back.  No follow-up
17   scheduled and then I don't know what happened
18   after that.
19               MR. TREU:  So it's clear, because
20   you said it real fast, appointment here or
21   Pawlicki.
22               THE WITNESS: Or Paul.
23         Q.    On 9-27 it says bad.  Do you know
24   what that is referencing?
0084
 1         A.    No.  That's not my handwriting
 2   either.
 3         Q.    Did you at any time attempt to get
 4   any further information from the UH doctors as
 5   it relates to Larry's condition at or around the
 6   time that you had this note?
 7         A.    No, I don't see that I ordered it.
 8         Q.    Nothing preventing you from being
 9   able to communicate with the UH doctors to get
10   further insight relative to what was going on
11   from his hospitalization; correct?
12         A.    No.
13         Q.    Nothing preventing you from finding
14   out what medications had been given to Larry to
15   treat any signs or symptoms of infection while
16   he was in University Hospitals; correct?
17         A.    Nothing preventing me.
18         Q.    And as a family practitioner,
19   certainly that is something that is reasonable
20   and prudent to do when you are continuing to
21   manage a patient post confinement?
22         A.    Yes, I always like to have the
23   records, sure.
24         Q.    But in this particular case, you
0085
 1   didn't, other than getting the discharge
 2   summary, you didn't choose to contact the UH
 3   doctors directly; true?
 4         A.    True.
 5         Q.    You didn't choose to request any of
 6   the hospital records to be able to better manage
 7   his care on an outpatient basis; true?
 8               MR. TREU:  Objection.
 9         A.    If I look at these visits, if I
10   thought I needed to follow back up on something
11   at that time, I could've called down and got it.
12         Q.    That would have been a reasonable
13   and prudent thing to do if it was necessary to
14   have that information; correct?
15         A.    If it was necessary.
16         Q.    And if it was necessary and you
17   didn't take it upon yourself to do that, that
18   would not be reasonable and prudent care; true?
19               MR. TREU:  Objection.
20         A.    Well, run that by me one more time.
21         Q.    If it was necessary in order to
22   manage the patient and you didn't take it upon
23   yourself to contact the doctor or to get the
24   records, that would not be reasonable and
0086
 1   prudent care on your part?
 2               MR. TREU:  Objection.
 3               THE WITNESS: Is it okay to answer?
 4         A.    If it was necessary.
 5         Q.    Now, when you saw Larry for the
 6   first time after UH and Heather Hill, that would
 7   have been October 6th, 2005, with the medical
 8   student; correct?
 9         A.    Correct.
10         Q.    And it looks like there were labs
11   that were drawn at that visit?
12         A.    Right.
13         Q.    And on the Goddard Medical Company
14   Incorporated note for that visit, it looks like
15   we got four items that were the plan for
16   treatment?
17         A.    Yeah, let me take a look here.
18         Q.    Go right ahead.
19               (Pause.)
20         A.    October 6th?
21         Q.    Yes.
22         A.    Yeah.  That's my handwriting, as
23   well.
24         Q.    One thing is you prescribed physical
0087
 1   therapy, evaluation, and treat his back pain?
 2         A.    Right.
 3         Q.    Was that to be taken care of at
 4   Geauga Hospital?
 5         A.    Yeah.  The checkmark means my staff
 6   set it up for him.
 7         Q.    Most likely through the Geauga
 8   department of physical therapy?
 9         A.    Yeah.
10         Q.    You also wanted sed rates, CRP,
11   glucose and the hemoglobin, A1C?
12         A.    Yes.
13         Q.    And also PSA?
14         A.    Yes.
15         Q.    And you wanted to see him for
16   follow-up in three to four weeks?
17         A.    Yeah.
18         Q.    And the fourth was call for, is that
19   blood culture --
20         A.    Blood culture.
21         Q.    -- results.
22               How did you know that there were
23   blood culture results to be obtained?
24         A.    My recollection is through history
0088
 1   of the patient.  I don't think I was really sure
 2   where they were drawn, but I asked my staff to
 3   call and get the blood culture results.
 4               And that's Geauga Regional Hospital
 5   and then the ER is what my staff writes in
 6   there.
 7         Q.    So am I to conclude that they called
 8   the ER department at Geauga Regional Hospital
 9   for blood culture results?
10         A.    Geauga Regional Hospital, the lab
11   there.
12         Q.    And did you ever obtain or learn
13   whether blood cultures had been drawn from
14   Geauga Regional Hospital ER?
15         A.    Let me look through my labs.  If
16   they were, they would have been sent to me.
17               (Pause.)
18         A.    No, I don't see them in my chart.
19         Q.    On that October 6th visit, the
20   medical student notes that Larry had tremors,
21   fever, chills the day before his office visit of
22   October 6th and was presenting for several
23   issues.
24               The patient had previous -- I can't
0089
 1   read what that says.  Might have been chest
 2   x-ray due to left sided pain?
 3         A.    Which line?
 4         Q.    The subjective patient presents for
 5   follow-up of several issues.  Patient had
 6   previous --
 7         A.    Chest x-ray.
 8         Q.    -- chest x-ray due to left sided
 9   pain.  Patient had tremors, fever, chills
10   yesterday.
11         A.    Yeah.
12         Q.    Did I read that correctly?
13         A.    Yeah.
14         Q.    Are tremors, fever, chills, are they
15   signs consistent with an infection?
16         A.    Well, the next line says patient
17   passed a kidney stone and today he feels much
18   better and it could have been an infection in
19   his bladder or could have been related to the
20   kidney stone.
21         Q.    Did you prescribe any antibiotics
22   for the patient as of October 6th?
23         A.    I'll check real fast here.  On that
24   date?
0090
 1         Q.    Yes.
 2         A.    Not that I can see.
 3         Q.    Patient then came back for follow-up
 4   on November 8th?
 5         A.    Correct.
 6         Q.    I think there was an emergency room
 7   visit on October 1, if I'm not mistaken?
 8         A.    Yeah.
 9         Q.    And I think that's when Tony
10   Magalski saw him?
11         A.    The phone call.
12         Q.    Okay.  Do you recall talking with
13   Tony at that time about the ER visit, about his
14   presentation and what prompted it?
15         A.    October 1st?
16         Q.    Yes.
17         A.    Not from memory.  I could find the
18   note.
19               (Discussion off the record.)
20         Q.    If on the October 1 visit, if Larry
21   had been put on Cipro 500 milligrams, when you
22   saw him on October 5, was there any indication
23   as to whether or not he was still on the Cipro?
24         A.    We don't have it documented on that
0091
 1   visit.
 2               MR. TREU:  There are phone messages
 3   before that visit.  I want to make sure you have
 4   them, as well.
 5               MR. MISHKIND:  Phone messages before
 6   which?
 7               MR. TREU:  From September 29th and a
 8   phone message of October 5th.  They are not that
 9   same computer generated, they are handwritten.
10               THE WITNESS: That would have been my
11   answering service letting us know someone is
12   trying to call and my staff called.
13               MR. TREU:  You are referring to
14   exhibit, so the record is clear?
15               THE WITNESS: Exhibit 3.
16               MR. TREU:  Is an answering service
17   fax?
18               THE WITNESS: Printout. Yes.
19               MR. MISHKIND:  What do we now have
20   here?
21               MR. TREU:  I have phone messages of
22   September 29th and October 5th.  The only reason
23   I mention it is because Cipro is mentioned in
24   the October 5th note.
0092
 1               MR. MISHKIND:  I know the October 1
 2   ER visit they had given Cipro.
 3               MR. TREU:  And it says the wife is
 4   telling them, on Tylenol and Cipro.
 5         Q.    As of October 6th when he was seen,
 6   you don't know whether the course of Cipro had
 7   run, had been completed or whether -- certainly
 8   on October 6th, you didn't initiate any
 9   additional antibiotic therapy?
10         A.    No.
11         Q.    On November 8th, you saw him again.
12         A.    Yes.
13         Q.    What was the reason for that visit?
14         A.    It was a follow-up regarding the
15   back pain.
16         Q.    He also had a possible infected
17   tooth; correct?
18         A.    Correct.
19         Q.    And at that point, you didn't do any
20   blood cultures, did you?  You didn't order any
21   blood cultures?
22         A.    Let me check my orders for that day.
23   I don't believe I did, though.  No.
24         Q.    The results from the lab, from the
0093
 1   previous visit from October 6th, his C-reactive
 2   protein was elevated; correct?
 3         A.    Let me find it real quick.  They are
 4   out of order in my chart.
 5         Q.    That's all right.  I think they are
 6   out of order in everyone's.
 7               MR. TREU: They are out of order in
 8   mine too and I'm not happy about it.
 9         Q.    C-reactive protein was 11.67?
10         A.    Yes.
11         Q.    And his ESR was 73; correct?
12         A.    Correct.
13         Q.    Now, not diagnostic in and of
14   itself, those would certainly be consistent with
15   a patient who has an infection; correct?
16         A.    Yeah, that could be consistent with
17   it.
18         Q.    And on that particular day, actually
19   based upon these results, it looks like there is
20   a note, October 15, patient notified,
21   appointment, look like appointment October 27,
22   okay with Dr. Goddard.
23         A.    If I read it, follow-up
24   appointment -- I'm saying Tuesday here.  End of
0094
 1   day or Wednesday.  I believe I'm trying to get
 2   him in as soon as we can.
 3               Patient notified of appointment
 4   10-27, okay with DG.  They wanted to make sure
 5   time-wise I was able to stay later or whatever
 6   time he picks.
 7         Q.    In any event, you didn't, based upon
 8   these results, prescribe any additional
 9   antibiotics to treat any potential infection,
10   did you?
11         A.    I don't believe so.
12         Q.    Is there a reason why you didn't
13   prescribe an antibiotic at that time?
14         A.    Well, I wanted to see him to see
15   what was going on, so we were trying to get him
16   in so I could evaluate him.
17         Q.    But you didn't see him until
18   November 8th?
19         A.    According to my notes it looks like
20   he was given an appointment October 27th.
21         Q.    Does your office record reflect a
22   no show or a cancellation?
23         A.    They can in the computer system.  I
24   would have to check on that.
0095
 1         Q.    Okay.  Suffice it to say, whether it
 2   was rescheduled, no show, whatever, we know he
 3   wasn't seen until November 8th; correct?
 4         A.    Correct.
 5         Q.    And at that time, he has the back
 6   pain, he is concerned about an infected tooth.
 7   Why did you prescribe Augmentin?
 8         A.    Well, if it was an infected tooth,
 9   if I remember right, it was giving him a lot of
10   pain and this is a common problem we have as a
11   family doctor, people have a hard time getting
12   to the dentist so we are often treating them to
13   try to alleviate the symptoms of the pain.
14         Q.    Doctor, in light of the history that
15   this patient had going back to September, his
16   admission for the back pain, the concern that
17   had been expressed in the discharge summary
18   about the need to follow up for infection and
19   inflammatory markers, and the patient's
20   continued back pain, did you within your
21   differential have any concern at all about the
22   potential of diskitis or osteomyelitis?
23         A.    Well, in my note, I put back pain.
24   In my impression and plan, I write back pain,
0096
 1   concerned with C-reactive protein and sed rate
 2   and possible diskitis.  I'd like to refer him to
 3   Dr. Furey, who is an orthopedic surgeon.  I
 4   write, explain what it could be.
 5               My recollection is that I was very
 6   concerned he had an infection in his back.  My
 7   other recollection is they had been frustrated
 8   by all the tests and everything that they had
 9   been through and my thinking at the time was to
10   have Dr. Furey see, evaluate that back, and
11   figure out what was going on, if it was
12   infectious, and go from there.  Dr. Furey is
13   also part of the UH Health System, as well.
14         Q.    Okay.  Now, before we talk about
15   what happened on that date, can we agree that if
16   one does have diskitis, especially in a patient
17   that has diabetes, that it's important to treat
18   the diskitis with the appropriate antibiotic
19   that is sensitive to the bacteria; true?
20         A.    You are talking about just a general
21   case, someone comes in?
22         Q.    Well, if, in fact, Mr. Zerbian had
23   and continues to have diskitis, is it important
24   to get the patient managed appropriately with
0097
 1   the proper antibiotic?
 2         A.    Yeah.  He refuses though to go see
 3   an orthopedic surgeon and I'm very concerned
 4   about him not going.  In fact, I write in my
 5   chart note that keep chart out because I'm very
 6   worried.  He does not want to go and does not
 7   want to follow the plan I gave him.  And the
 8   Augmentin I gave him, I just kind of felt bad
 9   with the infected tooth.
10         Q.    I'm not arguing with you as it
11   relates to the referral, but follow my question.
12               You know that this is a man who has
13   been in the hospital, in rehab, has continued to
14   have problems with his back, has inflammatory
15   and infectious markers that are elevated prior
16   to and as of November of '05; correct?
17         A.    Correct, yeah.
18         Q.    And whether you refer him to an
19   orthopedist or whether you choose to treat the
20   condition, if it's in fact diskitis, whoever
21   treats it, can we agree that it's important that
22   if he has diskitis that it be treated with the
23   appropriate antibiotic that is sensitive to the
24   bacteria causing the diskitis?
0098
 1         A.    That's correct, but I want to make
 2   clear -- the Augmentin was for the infected
 3   tooth and not to treat the back.
 4         Q.    I realize that.  If, in fact, he has
 5   diskitis -- which is infection of the disk
 6   space; correct?
 7         A.    Correct.  And I am thinking of any
 8   infectious process in the back.  I just have a
 9   feeling he has an infection in his back.
10         Q.    If he does have an infection in his
11   back, it's important to treat it with the
12   appropriate antibiotic that is sensitive to the
13   bacteria involved; correct?
14         A.    Correct.
15         Q.    We know that you didn't do any blood
16   cultures to isolate the specific bacteria;
17   correct?
18         A.    I didn't order blood cultures that
19   day.
20         Q.    That would have been helpful in
21   terms of determining whether or not he had some
22   degree of bacteremia; correct?
23         A.    To look for bacteremia, but in this
24   case I wanted him to see Dr. Furey to evaluate
0099
 1   that back to see if a biopsy or another test
 2   needed to be done.
 3         Q.    I understand that.  And he didn't
 4   want to go to a back doctor at that point?
 5         A.    Correct.
 6         Q.    The fact that he didn't want to go
 7   to a back doctor at that point, that doesn't
 8   mean you washed your hands of responsibility to
 9   the patient.  You still have to, as a family
10   practitioner, you have to manage that which can
11   be a very dangerous condition; true?
12               MR. TREU:  Objection.  Go ahead.
13         A.    That's correct.  That's why I made
14   sure to come back in four weeks and why I took
15   my time to explain to him what it could be and
16   why we had to send him to an orthopedic surgeon.
17         Q.    And he didn't want to go to the
18   orthopedic surgeon?
19         A.    Correct.
20         Q.    You were concerned about a potential
21   infection in the lumbar spine?
22         A.    Area, yeah.
23         Q.    And you don't prescribe an
24   antibiotic that would be efficacious to a disk
0100
 1   infection, you prescribed an antibiotic to treat
 2   an infected tooth; correct?
 3         A.    Correct.
 4         Q.    So at that particular point he had
 5   no coverage for what had to have been within
 6   your differential, and that is the possibility
 7   of diskitis; correct?
 8               MR. TREU:   Objection.  Well, we
 9   don't know what is going on in the back because
10   he won't go see an orthopedic surgeon.
11         Q.    And you had other things that you
12   could have done within your armamentarium --
13         A.    I know what you are saying.
14               MR. TREU:  Armamentarium. Let him
15   finish his question, doctor.
16         Q.    -- including ordering blood
17   cultures; correct?
18               MR. TREU:  Objection.
19         A.    I could've ordered blood cultures.
20         Q.    And would blood cultures have been
21   helpful?
22         A.    I don't know.
23         Q.    Are blood cultures efficacious in
24   terms of determining whether or not a patient
0101
 1   has a systemic bacteremia?
 2         A.    Yeah, that could be a test done.
 3         Q.    When you rechecked the sed rate to
 4   C-reactive protein as of November 8, what did
 5   you determine?
 6         A.    Well, the values are closer to the
 7   normal range, but clinically, I'm still
 8   concerned he has something going on in his back
 9   and when he comes back to see me we still have
10   to get this resolved.
11               The numbers don't match up with my
12   current clinical findings and I'm still worried
13   about an infection in his back.  And I believe
14   October 16th he was on the Augmentin for several
15   days already and so these numbers to me didn't
16   mean that much to me and I was worried about his
17   back.
18         Q.    They were a little bit more normal
19   but they were still abnormal?
20         A.    Didn't change my thinking on him
21   from November 8th.
22         Q.    And antibiotics, if they are not the
23   appropriate antibiotic and the patient is not on
24   the appropriate antibiotic for the right period
0102
 1   of time can suppress a bacteremia for a while
 2   and then once that antibiotic is stopped, the
 3   antibiotic or the bacteria can start back up
 4   again; correct?
 5         A.    Correct.
 6         Q.    And you know that as a family
 7   practitioner that it's important that if someone
 8   has a disk space infection or some type of
 9   bacteremia that it has to be managed with the
10   appropriate antibiotic for the appropriate
11   length of time to prevent serious consequences;
12   true?
13               MR. TREU:  Object to form.
14         A.    I think in Larry Zerbian's case the
15   first step is to find out what is going on in
16   his spine and he refused and I set up a
17   follow-up appointment to follow back up on that.
18         Q.    He refused to see the orthopedic
19   surgeon, but did he refuse to go for any blood
20   tests, blood cultures, or anything else that
21   would assist you in evaluating whether or not
22   this was some type of a disk space infection?
23         A.    He had had extensive blood work in
24   the past and, no, I felt the way to go was to
0103
 1   get him to that surgeon and take a look and see
 2   if he needed a biopsy or do something more
 3   definitive.
 4         Q.    Tell me what your recollection is to
 5   the reason that Larry, after what he had gone
 6   through being in the hospital, being in rehab,
 7   coming to see you several times, why he didn't
 8   want to go to Dr. Furey?
 9         A.    It would probably go with -- let me
10   think for a second.
11         Q.    If you remember.  Obviously, if you
12   are just guessing as to why --
13         A.    I probably am not sure why.
14         Q.    Fair enough.  The results came back
15   from the labs, it looks like, November 16th,
16   '05.  Is that when the labs were?
17         A.    They were ordered on the 8th, but
18   then he must've got them done on the 16th.
19         Q.    And C-reactive protein was still
20   elevated.  His PSR was done but still abnormal;
21   correct?
22         A.    Yes.
23         Q.    And you said letter sent December
24   12, '05.  Was that the letter that we marked as
0104
 1   an exhibit?  No.  Is there another letter?
 2         A.    That's my staff's handwriting,
 3   that's not mine.
 4         Q.    Okay.
 5         A.    I'm not sure.  To be honest with
 6   you, I'm not sure what they are referring to.
 7         Q.    I have scoured through the records
 8   and I will confess that I have not found a
 9   letter dated December 12, '05, but as we are
10   going through the records, there are things that
11   we keep on finding, so -- is it fair to say --
12   well, you continue to look and see.  Maybe you
13   will find it.  I don't want to put words in your
14   mouth.
15         A.    There is confusion sometimes with
16   Workers' Comp charts and regular charts.
17         Q.    Sure.
18               (Pause.)
19         A.    It could have been a reference -- by
20   the time I dictate and by the time letters come
21   back, it could have been a reference to this.
22         Q.    Reference to the letter dated
23   November 11, 2005?
24         A.    It could have been that one because
0105
 1   it would take a while for the dictation to come
 2   back.
 3         Q.    Although that letter which is dated
 4   November 11, 2005 actually was before these labs
 5   of November 16th, so --
 6         A.    I'm not sure if there is another
 7   letter out there.  We may have to check with my
 8   office staff and see.
 9         Q.    If you find it, shoot it on to me.
10               Doctor, if you were aware that
11   discharge orders had been given at the time that
12   Larry was discharged from University Hospitals
13   for him to have weekly CBC's, ESR and CRP to
14   assess resolution of any inflammatory infectious
15   process and also that he should be closely
16   monitored for the possibility of diskitis due
17   primarily because it had not been ruled out at
18   the time that he was discharged from UH, and
19   further if he had been aware that no such
20   testing was done at Heather Hill when he was
21   transferred, what would you have done?
22               MR. TREU:  Objection.
23         A.    Well, I think my treatment would
24   have been the same on October 5th.  I ordered a
0106
 1   sed rate and that's the first time he came in to
 2   see me and they were elevated and we tried to
 3   get him in as soon as we could.  I saw him in
 4   November and I'm worried about this guy and I'm
 5   trying to get him to the appropriate specialist,
 6   so I don't know that it would have changed as
 7   well.
 8         Q.    So on Goddard Medical Company
 9   November 8th, we have five items, refer to
10   Dr. Furey and you have it underlined and it says
11   PPO, no referral.  What does that mean?
12         A.    No referral necessary.  So our
13   policy is refer to Dr. Furey and I gave him the
14   phone numbers anyway because I wanted him to
15   have the phone number.
16         Q.    CRP, sed rate you wanted done.  We
17   talked about the results of that; true?
18         A.    True.
19         Q.    Three, follow up in four weeks.
20               Four, nerve conduction study, left
21   arm.  What was the reason for the nerve
22   conduction study?
23         A.    He had these complaints of left arm
24   numbness in the note.
0107
 1         Q.    And then copy MRI report for
 2   patient?
 3         A.    I believe he wanted a copy of his
 4   MRI report.
 5         Q.    And is that your handwriting that
 6   says keep chart out?
 7         A.    Yes.
 8         Q.    And you kept the chart out because
 9   you were concerned about this patient's
10   condition; correct?
11         A.    Correct.
12         Q.    Is it fair to say that you were
13   concerned but still weren't able to put the
14   pieces of the puzzle together as of November in
15   terms of what was going on with this patient?
16               MR. TREU:  Objection.
17         A.    No, because the sed rate and protein
18   were elevated and he had pain in his back and it
19   all pointed to infection in his back.  He had
20   the infected tooth as well, but we had to figure
21   out what was going on with his back and from
22   there we could figure out what else was going
23   on.
24         Q.    As of November, you were pretty
0108
 1   confident that he had an infection in his back;
 2   true?
 3         A.    I didn't know.  I knew he had to see
 4   a specialist to work it up further.
 5         Q.    But certainly within the
 6   differential, that was up on your list?
 7         A.    Yes.
 8         Q.    And you knew that you had a patient
 9   that had diabetes, that if he had an infection,
10   it needed to be aggressively treated; correct?
11         A.    If he had an infection, yes, it
12   needed to be aggressively treated.
13         Q.    And you knew when he left in
14   November that he didn't want to go see
15   Dr. Furey; true?
16         A.    I knew that -- I explained to him
17   what I was worried about and he didn't want to
18   see Dr. Furey to help figure it out.
19         Q.    You made an appointment for him to
20   come back and that brings us then to January
21   3rd; correct?
22         A.    Let me check my dates here.  That's
23   the next time I believe he is seen by someone in
24   our group.  But let me look through here.  I
0109
 1   just want to make -- when I wrote to follow up
 2   in four weeks, he must not have made an
 3   appointment when he was leaving.  I would have
 4   to check and see if he made the appointment or
 5   no show or what happened.  I believe he calls
 6   the office during that time period.  Let me find
 7   that phone message.
 8               (Pause.)
 9               MR. TREU:  What are you looking for?
10               THE WITNESS:  A phone message after
11   the November 8th visit.
12         A.    Here is one on November 28th.
13   Prescription called in for Rite-Aid.
14   Prescription refills.
15         Q.    What's the prescription refill for?
16         A.    Glucophage and Actos, his diabetes
17   medications, but there is another one from
18   December 1st, '05 where he needs more
19   amoxicillin; can't see dentist until next week.
20         Q.    Okay.
21         A.    And then I asked how is he and then
22   written down here is, I believe, okay.  I
23   believe that's the last time until January 3rd,
24   then I think that's the last contact with him.
0110
 1               MR. MISHKIND:  Kris, what I would
 2   ask you to do, just to make sure, because there
 3   is three or four or five pages that just in the
 4   copying were not on the same page and perhaps we
 5   can bates stamp.
 6               MR. TREU:  I'll have this set bates
 7   stamped.
 8               MR. MISHKIND:  Does it appear that
 9   you have everything that's in his chart?
10               MR. TREU:  I think so.
11               We can go off the record.
12               (Discussion off the record.)
13         Q.    When you saw Larry on November --
14   what was the date, November 8th?
15         A.    Uh-huh.
16         Q.    Did you let him know that there
17   would be a change in your practice as of
18   January?
19               MR. TREU:  Let me object to that,
20   because he expected to see him before the end of
21   the year.
22         Q.    Well, when did you go from the 50/50
23   to 90 percent of nonclinical?
24         A.    It would have been in
0111
 1   mid-December -- I'm answering the question.  I'm
 2   just trying to think through the dates.
 3   Mid-December.
 4               And I think we were still even at
 5   this time figuring out what I was going to do
 6   because this was something we decided over of a
 7   couple month period, but I don't recall I told
 8   him about the change.
 9         Q.    So am I correct that had he
10   scheduled an appointment for four weeks after
11   November 18th, which would have been the week
12   before Christmas
13               -- MR. TREU:  November 8th.
14         Q.    I'm sorry -- for the beginning of
15   December, you may or may not have been there to
16   see him?
17         A.    At that time, I believe it was mid,
18   December 15th strikes me as the day my schedule
19   kind of changed.  But any patient who had
20   appointments would have either been kept on for
21   me to see at some point at that night visit or
22   half day, or my partner, it would have been
23   assigned to my partner.
24         Q.    Would that have been Dr. O'Hara?
0112
 1         A.    Probably at this time Dr. Pawlicki
 2   because he was still starting his practice.
 3         Q.    In any event, for whatever reason,
 4   he wasn't seen the beginning of December.  He is
 5   seen January 3rd according to the records?
 6         A.    And there is a phone message that
 7   says he is doing okay.
 8               MR. MISHKIND: And that's a phone
 9   record that perhaps we can, just to be complete,
10   get a copy of that before we leave, assuming
11   your secretary or staff is still here.
12               MR. TREU:  It's almost 6:00.
13         Q.    As of January 3rd, did Dr. Pawlicki,
14   did he communicate with you at all about that
15   office visit?
16         A.    I just can't recall.
17         Q.    January 3rd visit, you didn't see
18   him.  Would it have been because at that
19   particular point you were more in the quality
20   assurance/administrative aspects and less seeing
21   patients other than the three to four hours on
22   that one day?
23         A.    Yeah.  He probably saw Dr. Pawlicki
24   that day because he had trouble getting on my
0113
 1   schedule.
 2         Q.    You did see him I think one more
 3   time; correct?
 4         A.    Yeah.
 5         Q.    And you would have had the benefit
 6   of -- I presume you would have had the benefit
 7   of Dr. Pawlicki's office note?
 8         A.    Yeah.  It may have been faxed over
 9   to me, but that's January 25th; right?
10         Q.    Correct.  There was an emergency
11   room visit on January 19 of 2006, if I am
12   correct, to Geauga Hospital?
13         A.    Let me see if I can find the
14   records.
15         Q.    He was complaining of dyspnea since
16   a.m. with left rib pain?
17         A.    I am still trying to find that.
18               THE WITNESS: Do you have a copy of
19   that in the chart?
20               MR. TREU:  I don't.  All I have is
21   my summary.
22               I don't think it's part of his
23   chart.
24               MR. MISHKIND:  I'll get a copy.
0114
 1               (Recess had.)
 2         Q.    While we were off the record, I
 3   handed you the emergency room record for January
 4   19th and I think that's the one that
 5   Dr. Magalski was involved in.
 6         A.    Okay.
 7         Q.    And it appears as if you were
 8   contacted by Dr. Magalski.
 9               Larry had an elevated white blood
10   count of 11.6, was tachycardic, and according to
11   the note, you told Dr. Magalski that you were
12   comfortable with discharging the patient?
13         A.    Well, let's put it in context.  He
14   is unwilling to be admitted and once he refuses
15   to be admitted we were trying to work with him
16   after that point.  That first plan of attack was
17   to admit him to the hospital but he refuses.
18         Q.    It says admission is offered,
19   patient refuses, Dr. Goddard feels comfortable
20   discharging the patient.
21         A.    That's his words.
22         Q.    Do you remember that interaction?
23         A.    No, I don't.
24         Q.    And he is now discharged home with
0115
 1   Z-Pak and Z-Pak would be for what?
 2         A.    I can't speak for Dr. Magalski.  He
 3   was probably trying to treat for infection.  A
 4   lot of times when the ER doctor calls, you go by
 5   their assessment and what they want to do.
 6         Q.    Okay.  On January 25th, then?
 7         A.    The family calls me.  My
 8   recollection is they call me and say he is not
 9   doing well and I said bring him in right away.
10   And as soon as I listened to him I know
11   something is seriously wrong with him and we
12   sent him to the hospital.
13         Q.    And that's when he winds up having a
14   torn mitral valve?
15         A.    I dictated that at the time.  That
16   may have been just from a phone call or from my
17   nurse or somebody so I'm not sure that's
18   accurate, but that's what I think I realized the
19   diagnosis was.  That's an addendum.
20         Q.    I see that.  In the impression where
21   it says discussed with the attending, will
22   direct, and then there is a line for possible
23   pneumonia, can you fill in that blank?
24         A.    Direct admit, meaning send him right
0116
 1   into the hospital to the doctors and I think at
 2   the time I told him I was very concerned.
 3               My recollection was his exam, I
 4   remember telling him his exam was, I never heard
 5   anything like it.  It was just a rushing sound
 6   and I thought maybe he had something serious
 7   going on.
 8         Q.    Now, he had shortness of breath,
 9   pleuritic chest pain, but your note says heart,
10   regular rate and rhythm; correct?
11         A.    Yeah.  Just the rate and rhythm,
12   regular rate and rhythm, but I don't mention
13   anything else and I remember why.
14               When I auscultated his left side, I
15   couldn't make heads or tails of what I was
16   hearing.  It almost sounded like he had no lung
17   sounds.  It was a rushing sound.  I think I
18   wrote pericarditis because I thought did he
19   tamponade, was his heart enlarged.  I hadn't
20   heard anything like it before.
21         Q.    Did you have within your
22   consideration either pericarditis or
23   endocarditis, some type of infection of the
24   lining or the pericardium or the endocardium?
0117
 1         A.    When I walked in the room he looked
 2   bad.  I just knew I had to get him to the
 3   hospital and I had to have him get the tests
 4   done to take a look at him.  My instinct was he
 5   was in trouble and I had to get him in right
 6   away.
 7         Q.    Did you communicate with the doctors
 8   once he was admitted?  Do you remember having
 9   any communication with them? Was he sent
10   directly from your office to UH or to Geauga?
11         A.    To Geauga. I don't want to misspeak.
12   I can't recall the exact names or sequence of
13   events, but he was sent there and subsequently
14   sent down to -- I believe an echo had been done
15   at Geauga and they sent them right down.
16         Q.    And did you have communication with
17   the docs when he got to UH relative to the
18   degree of mitral valve injury that he had and
19   the need for surgical intervention?
20         A.    There was subsequent letters and I'm
21   not sure if I got a call from the surgeon or
22   not.  I can't recollect.
23         Q.    You know, do you not, that he
24   ultimately had bacterial endocarditis?
0118
 1         A.    Right.
 2         Q.    Do you have an opinion looking back
 3   at this timeline of events as to when he most
 4   likely had the first signs and symptoms of
 5   bacterial endocarditis?
 6         A.    You know, I would have to defer to
 7   the specialist.
 8         Q.    Okay.  Do you have an opinion
 9   looking back on the case as to when he most
10   likely developed injury to the mitral valve?
11         A.    First, as a doctor you always look
12   back and probably think about what could have
13   gone wrong or what we could have done
14   differently.  But in looking at the case, his
15   heart exam had been normal, so to be honest with
16   you, I don't know when it happened.
17         Q.    That's fine.  Do you have an opinion
18   as to when in the timeline of events Larry would
19   have had to have had his bacterial endocarditis
20   diagnosed such that he would have had the
21   greatest opportunity to avoid having to have the
22   mitral valve replaced?
23               MR. TREU:  Objection.  Go ahead.
24         A.    Earlier is always better.  I do
0119
 1   think had he seen Dr. Furey when we investigated
 2   that back to know what for sure was going on, it
 3   would have been a subsequent workup if, in fact,
 4   he had an infection in his back at the time.
 5         Q.    You believe that Dr. Furey as the
 6   orthopedist would have caused a sufficient
 7   workup such that he would have been diagnosed
 8   with endocarditis?
 9         A.    I think we would have, if he had
10   infection in his back -- and I don't know that
11   to this day that there was an infection in his
12   back -- but if there was and that got diagnosed,
13   then I think things could have gone, we would
14   have had a diagnosis of his back and that
15   could've led to other tests and subsequent
16   therapies.
17         Q.    Do you believe that if he had an
18   infection in his back, that the infection in the
19   back was ultimately, from a pathophysiological
20   standpoint, the infection that seeded in the
21   mitral valve?
22         A.    No, I would have to let my
23   specialists say what they think about that.
24         Q.    Now, I have heard you say that Larry
0120
 1   refused to go to Dr. Furey and you believe he
 2   should have gone.  Are you critical of your
 3   patient in terms of not going to Dr. Furey?
 4         A.    I'm not critical of him, no.
 5         Q.    Do you have any criticism of any of
 6   the other caregivers that were involved before
 7   you got involved in October?  So in other words,
 8   the caregivers that treated him in September at
 9   UH or at Geauga Hospital.  Do you have any
10   criticism of any of the various doctors that you
11   have talked about in terms of Dr. Pawlicki and
12   Dr. Lisgaris?
13               And recognizing that you haven't
14   seen the full hospital records, but do you have
15   any basis to criticize any of the caregivers
16   from what you have seen?
17         A.    No.
18         Q.    Okay.  Doctor, I want to conclude
19   the deposition, but I want to make sure that if
20   there are any conversations within the visits,
21   the October, the November, the January visit
22   prior to his admission to the hospital, things
23   that you recall that are independent of the
24   record, I want to give you every opportunity to
0121
 1   tell me, I remember Susie saying such-and-such
 2   or I remember Larry saying such-and-such.
 3               You have told me about the refusal
 4   to go to Dr. Furey, but is there anything else
 5   that you recall independent of the record that I
 6   have not given you a fair opportunity to
 7   describe?
 8         A.    I don't believe there is anything
 9   that I haven't already told you.
10         Q.    Have you talked with any doctors
11   independent of the conversations with Mr. Treu
12   or with any other legal representatives to
13   determine, to try to determine when this
14   infection could have been treated and prevented
15   the injury to Larry?
16         A.    No.
17         Q.    Do you have any knowledge as to what
18   his status is, other than he lives in Nevada now
19   with his wife?
20         A.    No.
21         Q.    Doctor, in the course of our
22   deposition, our three hour deposition, have I
23   been fair to you and allowed you to explain your
24   reasons for what you did and give you every
0122
 1   opportunity to explain your reasons for certain
 2   things that you didn't do?
 3         A.    Yes, you have been fair to me.
 4               MR. MISHKIND:  With that, I thank
 5   you for your time.
 6               Would you like the doctor to read, I
 7   presume?
 8               MR. TREU:  He'll read.
 9                      - - - - -
10          (Deposition concluded at 6:05 p.m.)
11              (Signature not waived.)
12                      - - - - -
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
0123
 1                       AFFIDAVIT
 2         I have read the foregoing transcript from
 3   page 1 through 122 and note the following
 4   corrections:
 5   PAGE  LINE     REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
12   
13   
14                    DONALD J. GODDARD, M.D.
15   
16   
17     Subscribed and sworn to before me this
18   day of          , 2008.
19   
20                       Notary Public
21   
22   My commission expires          .
23   
24   
0124
 1                     CERTIFICATE
 2   
 3   State of Ohio,
 4                      SS:
 5   County of Cuyahoga.
 6   
 7   
 8         I, Vivian L. Gordon, a Notary Public
     within and for the State of Ohio, duly
 9   commissioned and qualified, do hereby certify
     that the within named DONALD J. GODDARD, M.D.
10   was by me first duly sworn to testify to the
     truth, the whole truth and nothing but the truth
11   in the cause aforesaid; that the testimony as
     above set forth was by me reduced to stenotypy,
12   afterwards transcribed, and that the foregoing
     is a true and correct transcription of the
13   testimony.
14         I do further certify that this deposition
     was taken at the time and place specified and
15   was completed without adjournment; that I am not
     a relative or attorney for either party or
16   otherwise interested in the event of this
     action.  I am not, nor is the court reporting
17   firm with which I am affiliated, under a
     contract as defined in Civil Rule 28 (D).
18   
           IN WITNESS WHEREOF, I have hereunto set my
19   hand and affixed my seal of office at Cleveland,
     Ohio, on this 31st day of January, 2008.
20   
21   
22   
23                   Vivian L. Gordon, Notary Public
                     Within and for the State of Ohio
24   
     My commission expires June 8, 2009.
0125
 1                      INDEX
 2     DEPOSITION OF DONALD J. GODDARD, M.D.
 3   
 4     BY MR. MISHKIND:              3        7
 5   
 6                       EXHIBITS
 7   
 8     Exhibit 1 was marked          4        8
 9     Exhibit 2 was marked          51       11
10     Exhibit 3 was marked          82       11
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24