0001
 1              IN THE COURT OF COMMON PLEAS
                  OF CUYAHOGA COUNTY, OHIO
 2                       - - - - -
 3   CAESAR C. DAILEY,
     Individually and as
 4   Administrator of the
     Estate of Lillian Dailey,
 5   deceased,
 6         Plaintiff,
 7         vs              Case No. CV-07-629950
 8   OHIO PERMANENTE
     MEDICAL GROUP, Inc.,
 9   et al.,
10         Defendants.
11   
12                       - - - - -
13           DEPOSITION OF ALBERT GREEN, M.D.
14                WEDNESDAY, MAY 28, 2008
15                       - - - - -
16        Deposition of ALBERT GREEN, M.D., a
17   Defendant herein, called by counsel on behalf of
18   the Plaintiff for examination under the statute,
19   taken before me, Vivian L. Gordon, a Registered
20   Diplomate Reporter and Notary Public in and for
21   the State of Ohio, pursuant to agreement of
22   counsel, at the offices of Buckingham, Doolittle
23   & Burroughs, One Cleveland Center, Cleveland,
24   Ohio, commencing at 2:00 o'clock p.m. on the day
25   and date above set forth.
0002
 1   APPEARANCES:
 2   On behalf of the Plaintiff
 3   
 4         Becker & Mishkind Co., LPA, by
 5         HOWARD D. MISHKIND, ESQ.
 6         Skylight Office Tower
 7         Suite 660
 8         1660 West Second Street
 9         Cleveland, Ohio 44113
10         216-241-2600
11   
12   
13   
14   On behalf of the Defendants
15   
16         Buckingham, Doolittle & Burroughs, LLP, by
17         DIRK E. RIEMENSCHNEIDER, ESQ.
18         One Cleveland Center
19         Suite 1700
20         1375 East Ninth Street
21         Cleveland, Ohio 44115
22         216-621-5300
23   
24   
25                       - - - - -
0003
 1         ALBERT GREEN, 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 ALBERT GREEN, M.D.
 7   BY MR. MISHKIND:
 8         Q.    Would you state your name, please.
 9         A.    Albert Michael Green.
10         Q.    Dr. Green, it's my understanding
11   that you are a physician, an obstetrician and
12   gynecologist?
13         A.    Yes.
14         Q.    Licensed to practice medicine in the
15   State of Ohio?
16         A.    Yes.
17         Q.    And it looks like you went to New
18   York Medical College?
19         A.    Yes.
20         Q.    Graduated in 1979?
21         A.    Yes.
22         Q.    Tell me about your post, after
23   graduating from medical school, your training,
24   your residency and any fellowships that you have
25   done after medical school.
0004
 1         A.    I did a residency in OB/GYN at Beth
 2   Israel Hospital in New York.  Subsequently I
 3   worked in New York for a year, practicing, and
 4   then I moved to Cleveland, Ohio.
 5         Q.    I can still detect that New York
 6   accent.
 7         A.    I'm happy to hear that.
 8         Q.    Are you board certified in
 9   obstetrics and gynecology?
10         A.    Yes.
11         Q.    You are employed by Ohio Permanente
12   Medical Group?
13         A.    Yes.
14         Q.    How long have you been employed by
15   OPMG?
16         A.    Coming on 24 years.
17         Q.    Would that be the only employment
18   that you have had since moving to Ohio?
19         A.    Yes.
20         Q.    Do you have an area within
21   obstetrics and gynecology that you specialize
22   in?
23         A.    No.
24         Q.    If you were talking at a cocktail
25   reception, how would you describe your practice?
0005
 1   Just again obstetrics and gynecology?
 2         A.    Yes.
 3         Q.    Do you have a certain percentage
 4   that you dedicate to GYN and a certain
 5   percentage that is obstetrics?
 6         A.    I don't know that.  I do both.
 7         Q.    Do you have hospital privileges?
 8         A.    Yes.
 9         Q.    Where do you have hospital
10   privileges at?
11         A.    Marymount, Fairview.
12         Q.    Would the same hospital privileges
13   have existed back in 2005 when Lillian Dailey
14   was a patient that you saw on a couple of
15   occasions; Marymount and Fairview?
16         A.    I'm thinking.
17         Q.    I can tell.
18               (Pause.)
19         A.    Yes.
20         Q.    Have you done any publishing, any
21   writing?
22         A.    No.
23         Q.    Do you do any teaching?
24         A.    No.
25         Q.    Have you ever had your deposition
0006
 1   taken before?
 2         A.    Yes.
 3         Q.    How many times?
 4         A.    I believe twice.
 5         Q.    This is now the third time?
 6         A.    Yes.
 7         Q.    Have you ever been named as a
 8   defendant in any medical negligence cases?
 9               MR. RIEMENSCHNEIDER:  Objection.  Go
10   ahead.  Continuing objection.
11               MR. MISHKIND:  That's fine.
12         A.    I don't know how to answer that
13   question.
14         Q.    Tell me why.
15         A.    I don't think I have been
16   specifically named, just sort of under the
17   Kaiser umbrella.
18         Q.    Okay.  How many times has your care
19   been criticized in a lawsuit, even though you
20   may not have been specifically named, but your
21   care was drawn into question?
22         A.    Once.
23         Q.    What was the subject matter?  I
24   don't need you to go into great detail, but if
25   you can just give me a quick synopsis of what
0007
 1   the subject matter is.
 2         A.    An intrapartum field demise.
 3         Q.    Was your deposition taken in that
 4   case?
 5         A.    Yes.
 6         Q.    Have you ever had your privileges
 7   suspended, revoked, or called into question?
 8         A.    No.
 9         Q.    Have you ever applied for privileges
10   at any hospital and been denied?
11         A.    No.
12         Q.    Have you had occasion to serve as an
13   expert witness in any medical negligence cases?
14         A.    No.
15         Q.    Tell me what you've reviewed to
16   reacquaint yourself with this case.
17         A.    I reviewed specifically my notes and
18   the notes prior to mine and kind of looked over
19   what the outcome was.
20         Q.    In terms of the outcome, did you
21   review the autopsy?
22         A.    No.
23         Q.    When you say the outcome, tell me
24   what you mean by the outcome.
25         A.    Well, I'm being sued, so I kind of
0008
 1   want to know what I'm being sued for.
 2         Q.    When you say you looked at the
 3   outcome, what is it that you looked at?  That's
 4   why I asked whether you have seen the autopsy.
 5   What did you look at in terms of the outcome to
 6   gain information on, quote, the outcome?
 7         A.    I looked at subsequent notes, you
 8   know, before her decease.
 9         Q.    Were those notes at Kaiser that you
10   looked at the Kaiser notes or did you look at
11   some of The Cleveland Clinic records?
12         A.    I looked at the Kaiser notes.
13         Q.    Have you seen any of The Cleveland
14   Clinic records for Lillian's treatment for the
15   uterine sarcoma?
16         A.    Yes.
17         Q.    The surgeon that did the operation
18   at The Cleveland Clinic, his name is escaping me
19   right now.  Dr. Michener.  Do you know
20   Dr. Michener?
21         A.    No.
22         Q.    Have you talked with any of the
23   doctors at The Cleveland Clinic that treated
24   Lillian for her uterine sarcoma?
25         A.    No.
0009
 1         Q.    Besides the records for your visits,
 2   some of the records preceding your visits and
 3   then records subsequent to your visits, have you
 4   reviewed anything else in connection with this
 5   case?
 6         A.    No.
 7         Q.    What about literature, have you
 8   looked at any literature on the diagnosis of
 9   uterine sarcoma?
10         A.    No.
11         Q.    Do you have any experience with
12   regard to the staging of uterine sarcomas?
13         A.    I don't have that experience.
14         Q.    Have you discussed this case and
15   your care with anyone other than
16   Mr. Riemenschneider or people in risk management
17   at Kaiser, doctors, colleagues, acquaintances,
18   to discuss what your involvement was as it
19   relates to Lillian Dailey's care?
20         A.    No.
21         Q.    Have you been provided copies of any
22   of the deposition transcripts that have been
23   taken in this case?
24         A.    No.
25         Q.    Were you aware that other
0010
 1   depositions had been taken of other caregivers?
 2               MR. RIEMENSCHNEIDER:  Objection.  Go
 3   ahead.
 4         A.    No.
 5         Q.    Okay.  Since you looked at the
 6   records that preceded your involvement, you know
 7   that Dr. Verghese had seen Lillian back in May
 8   and June of 2005; correct?
 9         A.    Yes.
10         Q.    Do you still work with Dr. Verghese?
11         A.    No.
12         Q.    What office -- I should have asked
13   you this at the beginning but I just jumped
14   right into asking you about what you've
15   reviewed.  What office or offices with Kaiser do
16   you work at currently?
17         A.    Cleveland Heights.
18         Q.    Is that where you are at
19   exclusively?
20         A.    Exclusively.
21         Q.    And then you admit patients, and
22   when you admit patients, do you admit them to
23   either Marymount or Fairview?
24         A.    Yes.
25         Q.    I know that doctor, I think it was
0011
 1   Dr. Verghese told me that she had an office
 2   practice, and that if she had to admit a
 3   patient, she would go to others, such as
 4   yourself, to do admitting.  Is that your
 5   understanding?
 6         A.    That's my understanding.
 7         Q.    Dr. Shuffer, do you know him?
 8         A.    Yes.
 9         Q.    Have you talked to Dr. Shuffer about
10   this case?
11         A.    No.
12         Q.    I take it from your previous answer
13   you were not aware that Dr. Shuffer's deposition
14   had been taken in this case?
15         A.    I was not aware of that.
16         Q.    Is there anything else that you have
17   done by way of preparation other than looking at
18   the records -- and by that I'm including
19   discussing the case with anyone other than your
20   attorney, looking at any policies or procedures
21   from Kaiser, or reading anything in the
22   literature on the diagnosis and treatment of
23   uterine sarcomas?
24         A.    No.
25         Q.    Is there a source that you consider
0012
 1   within the peer reviewed literature as a
 2   reasonably reliable source for information if
 3   you wanted to get information on the diagnosis
 4   of either uterine cancer or uterine sarcoma?
 5               MR. RIEMENSCHNEIDER:  Objection.  Go
 6   ahead.
 7         A.    I don't have one particular source.
 8         Q.    I'm not suggesting that there is
 9   just one.  But are there sources that you
10   consider to be reasonably reliable for peer
11   reviewed evidence based medicine on the
12   diagnosis of uterine cancers, including but not
13   limited to uterine sarcoma?
14         A.    Yes.
15         Q.    What source or sources do you
16   reasonably rely upon?
17         A.    From a gynecology standpoint
18   probably Kissner's book and through
19   recertification we go through a list of
20   articles.
21         Q.    What is Kissner's book called?
22         A.    Gynecology.
23         Q.    What journals in the area of
24   obstetrics and gynecology do you regularly read
25   to keep up to date on advances in evidence based
0013
 1   medicine in your area?
 2         A.    They come from a variety of sources:
 3   JAMA, maybe the British Journal, the American
 4   Journal, and Technical Bulletins from ACOG.
 5         Q.    Have you reviewed any of the
 6   practice bulletins in connection with this case?
 7         A.    No.
 8         Q.    Do you consider the practice
 9   bulletins from ACOG to be reasonably reliable
10   references as it relates to the issue of
11   irregular uterine bleeding?
12         A.    I would consider them to be
13   reasonably reliable.
14         Q.    It's my understanding, doctor, that
15   you saw Lillian for the first time in October of
16   2005?
17         A.    Yes.
18         Q.    At that time she had recently been
19   seen in an emergency room, I believe, at the
20   Cleveland Clinic?
21         A.    Yes.
22         Q.    In responding to my questions,
23   please feel free to refer to the records,
24   because I want to just sort of go right into
25   your exam.
0014
 1               So Mr. Riemenschneider, I know, has
 2   a copy of the records there.  It's not a memory
 3   contest.
 4               The first date that you saw Lillian,
 5   would that be October 26th, 2005?
 6         A.    Yes, sir.
 7         Q.    Now, before your note of -- the
 8   clinical note of October 26th, there is a phone
 9   encounter on October 25, 2005, which I think
10   prompted the scheduling of the office visit with
11   you.  Do you have that handy?
12         A.    I don't know.  No, I don't have it
13   handy.
14         Q.    All right.  Do you know how it is
15   that Lillian was scheduled to see you on October
16   26th as opposed to Dr. Verghese or anybody else
17   in the Cleveland Heights office?
18         A.    No.
19         Q.    Let me just show you and save some
20   time.  This is a phone encounter that appears --
21   take a moment to look at it.  As I'm trying to
22   piece the chronology together, it appears as if
23   after being seen in the emergency room on that
24   night with high blood pressure -- I'm sorry,
25   with a high WBC, and temp and abdominal pain,
0015
 1   that she was calling -- she being Lillian -- was
 2   calling, asking for a follow-up appointment.
 3   Does that appear to be how you read that, as
 4   well?
 5         A.    Yes.
 6         Q.    You are familiar with these phone
 7   encounter computer entries, are you not, how the
 8   system works?
 9         A.    Not for scheduling appointments.
10         Q.    Really?  Okay.  Just help me walk
11   through this.
12               It appears that when she did call,
13   it references either Dr. Verghese or
14   Dr. Green.  And if I'm reading this correctly,
15   it says member seen in ED tonight with high WBC
16   and temp with abdominal pain.  CAT scan showing
17   very enlarged uterus and possibly necrotic
18   fibroids.  Asking for follow-up appointment for
19   tomorrow and given with Dr. Green.  And then it
20   says M-R, M-I-N-I-T-E, discuss case with Dr.
21   McNamara.  Do you see that?
22         A.    I'm sorry, I'm not seeing that.
23   Given with Dr. Green and signature and then --
24         Q.    Do you see where I'm referencing,
25   the M-R period?
0016
 1         A.    I see where you are referencing
 2   that.
 3         Q.    Do you know who Dr. McNamara is?
 4         A.    Yes.
 5         Q.    Who is he?
 6         A.    She is one of our physicians in
 7   obstetrics and gynecology.
 8         Q.    And the M-R M-I-N-I-T-E, do you know
 9   what that is referencing?
10         A.    No, I don't.
11               MR. RIEMENSCHNEIDER:  I think it's
12   the caller from the Clinic.  If you look at the
13   top of that, the caller's first name Phil
14   Minite.
15               MR. MISHKIND:  Got it.
16         Q.    Dr. Green, you saw Lillian the next
17   day, which would be the 26th.  It looks like the
18   appointment was 11:41 a.m.?
19         A.    Yes.
20         Q.    What were her chief complaints?
21         A.    States abdominal pain, history of
22   fibroids, and seen in Cleveland Clinic ER
23   10-25-05.
24         Q.    The information that's marked down
25   in terms of the reason of the visit down to but
0017
 1   not including the exam section, would that have
 2   been recorded by the nurse before you saw the
 3   patient?
 4         A.    This would have been recorded by the
 5   nurse.
 6         Q.    Can you help me out with who the
 7   nurse was on that particular visit?
 8         A.    I can't make out that handwriting.
 9         Q.    I should have asked you this in the
10   beginning, but do you remember this patient?
11         A.    Yes.
12         Q.    Physically are you able to picture
13   her in your mind?
14         A.    Not by face, but situation and I
15   think generally.
16         Q.    Can you give me any more specifics
17   as to when you say situation, what is it that
18   you remember, independent of the record?
19         A.    Well, I remember that she was
20   somewhat obese, but not -- I didn't think not
21   morbidly so.  And that she didn't appear to be
22   sick.  Actually seemed rather pleasant.  And
23   that the situation was as a follow up from the
24   emergency room.
25         Q.    Along the problem list it has her
0018
 1   BMI at 38.  Is that considered morbid obesity?
 2         A.    I don't know.
 3         Q.    In any event, she was five foot
 4   eight, according to the note, and weighed 230
 5   pounds.
 6         A.    Yes.
 7         Q.    Do you recall whether Lillian was
 8   accompanied by any family or friends to this
 9   visit?
10         A.    I don't know that.
11         Q.    You said that she wasn't complaining
12   of any pain?
13         A.    She didn't appear to be in pain or
14   sick.
15         Q.    Even though the reason for the visit
16   was complaining of abdominal pain?
17         A.    Yes.  Even because of what was
18   written.
19         Q.    You didn't actually do a physical
20   exam, did you?
21         A.    I did not do a pelvic exam.
22         Q.    Why?
23         A.    I felt I had enough information at
24   hand and I did do an abdominal exam as listed on
25   the other side.
0019
 1         Q.    Now, there is an LPN signature.  It
 2   looks like Stewart is the last name?
 3         A.    Yes.
 4         Q.    S-T-E-W-A-R-T?
 5         A.    Yes.
 6         Q.    And if I'm reading this correctly,
 7   the first initial would be a Q?
 8         A.    Yes.
 9         Q.    What is Nurse Stewart's first name?
10         A.    Qeanna.
11         Q.    I'm sorry?
12         A.    Qeanna.
13         Q.    Is the handwriting of Nurse
14   Stewart's or is the handwriting yours?
15         A.    This body?
16         Q.    Yes.
17         A.    This is my handwriting.
18         Q.    If you would slowly, just so I make
19   sure I don't misinterpret what you have said, if
20   you could read and the court reporter will take
21   down what you have written on that sheet.
22         A.    56-year-old female with known
23   fibroid uterus.  Last GYN evaluation 6-05.
24   Previous endometrial biopsy, EMB, equals
25   inactive endometrium, with a hemoglobin of 14.5.
0020
 1   An ultrasound listed as 5-05 was 14.8 by 10.9 by
 2   9.7.  Seen in ED for what sounds like red
 3   incarnation, slash -- actually arrow,
 4   degeneration.  Patient feeling better since
 5   taking pain medication, and in parentheses,
 6   Vicodin.  Will have patient read literature on
 7   Depo-Lupron.  See me next week.  The abdominal
 8   exam was soft, palpable myomata, not as tender
 9   to touch.  My signature and Q. Stewart's
10   signature.
11         Q.    What is an inactive endometrium?
12         A.    It is an endometrium that's been
13   stimulated with some estrogen in the sense that
14   there are glands there, but inactive in the
15   sense that it is not going through its usual
16   proliferative stage or mytotic activity.  This
17   is usually the type of endometrium that you will
18   see just before someone going into menopause.
19         Q.    You looked at the ultrasound from
20   May of '05.  I presume you would have had
21   available to you the report from that ultrasound
22   or did you actually look at the ultrasound
23   itself?
24         A.    It would have been the report.
25         Q.    And having the ultrasound from May
0021
 1   of '05, you would have also had the ultrasound
 2   from October of '04?
 3         A.    Yes.
 4         Q.    Can you tell me why you didn't
 5   comment on the ultrasound in terms of the uterus
 6   comparing it between those two points in time?
 7         A.    Because I didn't think the
 8   information would have been vital to me since
 9   pretty much there wasn't that much difference
10   between the two sizes.
11         Q.    Your testimony is that the
12   ultrasound from October of '04 didn't show a
13   significant difference in size between that and
14   the May '05?
15         A.    Correct.
16         Q.    Knowing that this patient had been
17   seen in the emergency room the night before, I
18   presume you would have had available to you
19   information relative to the ER visit from The
20   Cleveland Clinic?
21         A.    You could presume that, but such
22   wasn't the case.
23         Q.    Well, I don't mean to be flippant by
24   that.  I mean, you didn't have the information
25   available to you?
0022
 1         A.    No.
 2         Q.    Was there anything preventing you
 3   from obtaining that information?
 4         A.    No, there wasn't anything preventing
 5   me.
 6         Q.    And the reason I started out by
 7   talking about the phone encounter, this Phil
 8   Minite, who looks like a physician's assistant
 9   at The Cleveland Clinic, had talked to
10   Dr. McNamara so that certainly information
11   relative to Lillian's CAT scan that was showing
12   a very enlarged uterus with possible necrotic
13   fibroids, that information was at least in the
14   system even though you didn't actually have that
15   information at hand when you saw the patient the
16   following day?
17         A.    That note would have been in the
18   system.
19         Q.    Okay.  And had you accessed the
20   system, you would have been aware of not only
21   that she had been seen the night before, but
22   that there was communication from The Cleveland
23   Clinic to Dr. McNamara that a CAT scan had shown
24   a very large, enlarged uterus the night before;
25   correct?
0023
 1         A.    No.  I don't recall seeing that in
 2   our system.  I don't recall really seeing any
 3   appointment setups in our system.
 4         Q.    And whether that information was in
 5   the system or not, we can at least agree that
 6   from the history given by Lillian to your nurse,
 7   that it was known to you and your nurse that
 8   there had been an emergency room visit to The
 9   Cleveland Clinic the night before?
10         A.    Yes.
11         Q.    To what extent the information about
12   the telephone call by the physician's assistant
13   to Dr. McNamara, and then setting up an
14   appointment with you or Dr. Verghese, to what
15   extent that information was in the system and
16   available to you, you just don't know one way or
17   another; is that a fair statement?
18         A.    I did not see that specific
19   information in the system.
20         Q.    Whether it was there, had you gone
21   on to the computer and accessed it --
22         A.    That's where I'm getting my
23   information, is from the computer.
24         Q.    So would it have been your practice,
25   knowing that she had been seen in the emergency
0024
 1   room the night before, to try to gain as much
 2   information as you can on this patient?
 3         A.    Yes.
 4         Q.    Because this is the first time you
 5   have seen her?
 6         A.    Yes.
 7         Q.    And you know that she had been seen
 8   back in May and June by Dr. Verghese?
 9         A.    Yes.
10         Q.    And she had had irregular uterine
11   bleeding; correct?
12         A.    Correct.
13         Q.    You know that Dr. Verghese, I think,
14   had started her on progestin?
15         A.    Yes.
16         Q.    And I think from June up until the
17   time you saw her in October, there was no other
18   GYN consults?
19         A.    Yes.
20         Q.    So this information about her being
21   seen in the emergency room the night before
22   would be important information for you to have
23   access to; correct?
24         A.    It would be information --
25         Q.    I'm sorry, I cut you off.  Go ahead.
0025
 1         A.    I'm done.
 2         Q.    I'm not sure you finished your
 3   answer.
 4         A.    It would be information.
 5         Q.    Is it something that you in the
 6   normal course of seeing a patient with this
 7   history, being perimenopausal, with irregular
 8   uterine bleeding, who had an acute presentation
 9   to an emergency room with abdominal pain, would
10   it be important for you to know what the results
11   were of any tests that had been done in the
12   emergency room?
13         A.    It would have been helpful.
14         Q.    Okay.  I take it you were not aware
15   that the CAT scan that had been done of the
16   pelvis the night before showed that Lillian had
17   multiple fibroids, including submucosal fibroids
18   with central necrosis and further a primary
19   endometrial neoplasm sarcoma is in the
20   differential, and that the findings may also
21   reflect a distended fluid-filled uterus
22   secondary to cervical stenosis or cervical
23   cancer?
24         A.    I was not aware of the CAT scan at
25   this time.
0026
 1         Q.    Okay.  Let me just show you a copy
 2   of the report.  I have the highlighted language.
 3   I'll let you finish reading it.
 4               (Pause.)
 5         Q.    So when you saw her the next day,
 6   your testimony is that you didn't have the
 7   results of the CAT scan?
 8         A.    Correct.
 9         Q.    Now, in the note that you have, it
10   says seen in ED for what sounds like -- and I
11   know you read it to me, but help me out again.
12         A.    Quote, unquote, red incarnation to
13   degeneration.
14         Q.    Tell me what that means.
15         A.    I didn't have the ER records and,
16   you know, I asked my nurse if she can get them.
17   Ultimately they weren't scanned in the system
18   yet, so I'm really dependent on the patient
19   telling me all that she possibly knew about her
20   visit in the ED.  And based on her description,
21   that's how I described what I thought she was
22   talking about.
23         Q.    Tell me what she would have said to
24   you to cause you to mark down red incarnation
25   arrow degeneration.  Those are terms I'm just
0027
 1   not familiar with.
 2         A.    I don't really know what
 3   specifically she said at that time to make me
 4   think that, but one might have said that the
 5   fibroid might have been breaking down and that
 6   is the result of the pain, but I don't know what
 7   she specifically said to me.
 8         Q.    What does the term red incarnation
 9   mean to you as an OB/GYN?
10         A.    That there is degeneration that's
11   causing pain.
12         Q.    Is it reasonable to conclude that
13   during the course of your discussion with her
14   and/or with the nurse, that you were aware that
15   testing had been done in the emergency room on
16   this patient?
17         A.    I was aware that testing should have
18   been done.
19         Q.    And would you expect that the
20   patient most likely had had either an ultrasound
21   or a CAT scan in the emergency room the night
22   before?
23         A.    I would presume so.
24         Q.    But you chose not to take any steps
25   to either call over to the emergency department
0028
 1   or to see if you could access the results of the
 2   CAT scan?
 3         A.    That's not true.
 4         Q.    Tell me.
 5         A.    Didn't I answer that before?
 6         Q.    You said a moment ago it wasn't
 7   scanned into the computer.
 8         A.    So the action was to see if my nurse
 9   could retrieve information for me while I was
10   actually interviewing the patient.
11         Q.    Now, do you show anywhere in your
12   note that you asked the nurse to retrieve the
13   results from the CAT scan from the emergency
14   room?
15         A.    No, I did not put that in there.
16         Q.    But it was something that you felt
17   was important for you to have so that you could
18   make either a diagnosis and/or prescribe a
19   course of treatment for this patient?
20         A.    I didn't know the importance of it,
21   based on how the patient looked and how she
22   described what she understood from the ED
23   encounter.  It would have been more pieces to
24   the puzzle for me.  Its importance, I don't
25   know.
0029
 1         Q.    What was within your differential
 2   when you saw this patient on October 26th, 2005?
 3         A.    In reviewing her past notes that
 4   were available to me, what I knew about her
 5   included that she was perimenopausal --
 6   premenopausal; that she had gone eight months of
 7   amenorrhea followed by some prolonged bleeding,
 8   which in my estimate wasn't a lot, seeing her
 9   hemoglobin was normal.
10               She had a history of fibroid uterus,
11   which really hadn't changed that much in
12   dimensions.  And with an endometrial biopsy,
13   excluding endometrial cancer, other than
14   degenerating fibroids, I did not have at that
15   time another differential.
16         Q.    Now, you mentioned in your note that
17   you commented on the ultrasound from May and I
18   think you told me that you didn't feel that the
19   ultrasound from November of '04 compared to the
20   ultrasound of May of '05 was -- that there was
21   much difference?
22         A.    I didn't think there was any
23   significant difference.
24         Q.    Is a fibroid that is in November of
25   '04, 5.4 centimeters, and in May of '05, 10.7
0030
 1   centimeters, is that a significant growth?
 2         A.    Within itself, no, because you have
 3   to put it all in the context of the examination.
 4   When you look at the dimensions, they are not
 5   that far off.  There is really, if you look at
 6   the largest dimension, it was maybe two
 7   centimeters difference.  The other dimensions
 8   are pretty much within the ballpark.
 9         Q.    So the uterus measuring 12.7 by 9.5
10   by 10.2 back in November of '04, comparing it to
11   the May '05 ultrasound of the uterus, and then
12   taking into account the largest fibroid that we
13   just mentioned from 5.4 to 10.7, you didn't feel
14   that that growth in terms of the uterus or the
15   fibroid was a significant change between
16   November of '04 and May of '05?
17               MR. RIEMENSCHNEIDER:  Objection.
18   Asked and answered.  Go ahead.
19         Q.    You can answer the question, doctor.
20   His objection is just for the record.
21               MR. RIEMENSCHNEIDER:  It's for the
22   record because I think he already answered the
23   question.
24               MR. MISHKIND:  He didn't, but that's
25   okay.  Go ahead.
0031
 1               MR. RIEMENSCHNEIDER:  Go ahead.
 2         A.    If you try and look at this three
 3   dimensionally in your mind, the answer is no.  I
 4   did not feel that it was a significant
 5   difference.
 6         Q.    Okay.  Now, if you had available to
 7   you at the time that you saw this patient the
 8   knowledge that the CAT scan of the pelvis as
 9   interpreted by the radiologist included an
10   impression within the differential of possibly
11   cervical stenosis, cervical cancer, endometrial
12   neoplasm, or sarcoma, would you have taken a
13   different course of action at the conclusion of
14   your examination on October 26th, 2005?
15         A.    That wording is not uncommon in
16   describing whatever you may be imaging from the
17   radiologist.  I can say that as far as
18   endometrial goes, that's been ruled out.  There
19   is nothing specifically about necrosis of a
20   fibroid that would take me to any different
21   thinking.  It is common in fibroids to necrose,
22   to degenerate.
23         Q.    Let me put it in words that I can
24   understand.  If you had the impression from the
25   CAT scan from the night before that we have
0032
 1   talked about that I showed you that was
 2   highlighted in terms of the, starting with
 3   severely enlarged distended uterus with multiple
 4   regions of low attenuation and then the rest of
 5   the language that you read, and coupled with
 6   your clinical exam on that next day -- do you
 7   follow me?
 8         A.    Yes.
 9         Q.    -- would you have taken any
10   different action in terms of treatment,
11   referral, with regard to treatment of this
12   patient if you had the benefit of the CAT scan
13   from the night before?
14         A.    No.
15         Q.    No?  This CAT scan also references
16   an indeterminate left lower lobe nodule.  It
17   indicates a limited noncontrast CT through the
18   region may also be helpful for further
19   characterization.
20               If you had that information -- in
21   other words, the full report of the CT of the
22   pelvis, would you have altered in any way the
23   treatment or the recommendations that you made
24   on October 26th?
25         A.    You know, my care is as a
0033
 1   gynecologist, but, you know, if I had access to
 2   what you just read to me, I think I would have
 3   paused and sort of wondered.  And as far as --
 4   because I think you stated that it was
 5   ill-defined or limited or something.
 6         Q.    With regard to the lung?
 7         A.    With regard to the lung, well, you
 8   know, it could be an old granuloma or whatever,
 9   but I wouldn't have changed my treatment.  At
10   least not at this particular visit.  The
11   additional thing I might have done is send her
12   to an internist.
13         Q.    On October 26th, if you had within
14   your differential uterine sarcoma, would you
15   have recommended that the patient receive the
16   treatment that she received on the 26th?
17         A.    Knowing how radiologists word
18   reports, and with the information that I have at
19   hand, with the size of the myoma and how she was
20   doing clinically, I would not have changed
21   anything on my second visit with her.
22         Q.    Okay.  Is it appropriate to give
23   Lupron treatments to a patient that has uterine
24   sarcoma?
25         A.    You say that in -- you ask me that
0034
 1   in hindsight.
 2         Q.    No.  Let me rephrase that.
 3   Hypothetically, if you have a patient that has a
 4   uterine sarcoma, would you give the patient
 5   Lupron?
 6         A.    No.
 7         Q.    Why?
 8         A.    Because it's not the treatment for
 9   sarcoma.
10         Q.    Is it contraindicated in a uterine
11   sarcoma?
12         A.    I don't know.
13         Q.    Have you personally ever diagnosed a
14   patient with uterine sarcoma?
15         A.    Not preoperatively.
16         Q.    Have you referred a patient to a GYN
17   oncologist with the working diagnosis of uterine
18   sarcoma?
19         A.    One patient I referred to an
20   oncologist who was diagnosed with uterine
21   sarcoma that I made the diagnosis
22   intraoperatively.  So it was actually a
23   histological diagnosis, and then subsequently I
24   sent her to, you know, to an oncologist.  It was
25   mainly a surprise finding.
0035
 1         Q.    What clinical characteristics or
 2   clinical markers do you need to see, as a GYN,
 3   to raise an index of suspicion that the patient
 4   has uterine sarcoma?
 5         A.    There is really no distinctive
 6   markers.  You know, the characteristics that one
 7   may have with fibroids are the same thing that
 8   one may have with a sarcoma, so the symptoms are
 9   pretty much kind of ill-defined, nonspecific,
10   not really distinctive.
11               And I think one of the things that
12   we'll kind of hang our hat on is usually a rapid
13   growth over a short amount of time in a
14   postmenopausal woman.  That's usually the
15   classic hallmark.  The actual sizing and time
16   interval really isn't well-known to my best
17   understanding.
18         Q.    Doctor, when Lillian was seen on
19   October 26th, did she have a history of
20   bleeding?
21         A.    She had a history of bleeding.
22         Q.    As a clinician, a patient that is
23   perimenopausal and is on progestin, that
24   continues to bleed, is that of any clinical
25   concern?
0036
 1         A.    It's not uncommon at all in
 2   perimenopause to go through episodes of
 3   amenorrhea as they try to transition into
 4   menopause, to go through these times of
 5   prolonged uterine bleeding.
 6               So, you know, progestin is certainly
 7   a means of treatment and the treatment for it
 8   isn't homogenous; it's not that one thing fits
 9   all.  And it's a matter of adjustment.
10         Q.    If you have a patient that is
11   perimenopausal, that has a normal endometrial
12   biopsy, and is continuing to bleed and isn't
13   responding over a period of time to the
14   progestin, is that of any clinical concern to
15   you after, say, a three to six month period?
16         A.    As far as thinking about something
17   else, with the benefit of having an endometrial
18   biopsy, it isn't a major concern.  The bleeding
19   is something that I would want to try and
20   decrease or eliminate, but within itself it's
21   not a major concern.  It's probably more of a
22   nuisance to her.
23         Q.    Okay.  Is abdominal pain a symptom
24   that you characteristically see in patients who
25   have ultimately a diagnosis of uterine sarcoma?
0037
 1         A.    Not distinctively.
 2         Q.    Well, is it common to see pain in a
 3   patient who has a uterine sarcoma?
 4         A.    I haven't seen too many uterine
 5   sarcomas, so I really can't even comment on that
 6   anecdotally.
 7         Q.    Is there, based upon your
 8   understanding of the literature, are you able to
 9   tell me whether or not pain, as well as I think
10   you said rapid growth, whether those two
11   together are hallmarks or characteristics of
12   uterine sarcoma?
13         A.    Not specifically.  But maybe.
14         Q.    Must one have within their index of
15   concern where you have rapid growth and pain in
16   a patient who is perimenopausal, who has ongoing
17   irregular uterine bleeding, not responsive to
18   progestin, that is obese, African-American, and
19   diabetic, should one have within their
20   differential uterine sarcoma?
21               MR. RIEMENSCHNEIDER:  Objection.  Go
22   ahead.
23         A.    You know, the characteristics that
24   you mentioned, really the rapid growth in a
25   postmenopausal -- you said perimenopausal --
0038
 1   yeah, in perimenopausal, clinically if there is
 2   a big change in the size of the uterus, that
 3   would lead me to include sarcoma in the
 4   differential diagnosis.
 5               Being African-American, being
 6   diabetic, being hypertensive, those aren't
 7   markers, those are associations.  What their
 8   specificity is and having you think about
 9   endometrial cancer, I don't think that's clearly
10   known.
11               And as far as bleeding, usually the
12   sarcomatous uteri, they will bleed profusely.
13   It will be like turning on a faucet to the point
14   where, you know, they would nearly collapse and
15   have hemoglobin significantly lower than the
16   14.5.
17         Q.    You mentioned hypertension.  I
18   actually had mentioned diabetes.
19         A.    I thought I mentioned that also.
20   Hypertension, diabetes and being
21   African-American.
22         Q.    All right.  I'm not suggesting that
23   those are markers, but are patients at higher
24   risk that are African-American, obese, diabetic,
25   hypertensive, that have irregular uterine
0039
 1   bleeding, not responsive to progestin that are
 2   perimenopausal?
 3         A.    I can't say that they would be at
 4   higher risk.  Again, there are more
 5   associations.
 6               In looking backwards at the type of
 7   patients that develop endometrial cancers, but
 8   as many African-American, diabetic,
 9   hypertensives that we see, we don't make an
10   extraordinary diagnosis, number of diagnoses of
11   endometrial cancer.
12         Q.    I take it on October 26th, 2005,
13   uterine cancer wasn't even on your radar screen,
14   was it?
15         A.    Uterine cancer was not on my radar
16   screen.
17         Q.    And based upon all the information
18   that was available to you on October 26th,
19   uterine sarcoma equally or even of greater
20   significance was not on your radar screen?
21         A.    Sarcoma was not on my differential
22   at that visit.
23         Q.    I take it you would disagree with
24   the following statement then that a patient with
25   abnormal uterine bleeding, whether peri or
0040
 1   postmenopausal, malignancy should be within the
 2   differential?
 3         A.    It should be within a differential,
 4   but in this specific case, we had the results of
 5   an endometrial biopsy which did not show cancer.
 6         Q.    Simply because you have a
 7   negative -- by the way, when was the endometrial
 8   biopsy?  Do you recall the date of the
 9   endometrial biopsy?
10         A.    It was within the year.
11         Q.    And it was never repeated again
12   during that year while the patient was
13   continuing to have irregular uterine bleeding?
14         A.    It was not repeated.
15         Q.    Would you have repeated it had you
16   been the clinician that was seeing her on a
17   regular basis?
18         A.    No.  I would have relied on the
19   biopsy results and the extent of bleeding.
20         Q.    Your treatment then on the 26th was
21   to recommend to her Vicodin for the pain?
22         A.    My primary treatment was to
23   recommend Depo-Lupron, and in the course of
24   doing so, at least help her episodes of pain.
25         Q.    And the Depo-Lupron was to
0041
 1   accomplish what?
 2         A.    Shrinkage of fibroids and with that
 3   hopefully would come decreased pain as well as
 4   minimizing or stopping her bleeding completely.
 5         Q.    Even though other treatment
 6   modalities that had been used back in June and
 7   in May had not stopped the bleeding?
 8         A.    Even though those modalities did not
 9   stop the bleeding.
10         Q.    And you weren't concerned enough on
11   October 26th to consider referral to a GYN
12   oncologist for consultation; true?
13         A.    Yes.
14         Q.    At the end of this visit, it says
15   see me next week.
16         A.    Yes.
17         Q.    And it looks like she did see you on
18   November 2nd?
19         A.    Yes.
20         Q.    So she followed your instructions?
21         A.    Yes.
22         Q.    Doctor, you mentioned in terms of
23   being able to picture the patient -- and I
24   presume you are not able to -- well, strike
25   that.
0042
 1               What else, if anything, do you
 2   remember about this visit that is not recorded
 3   in the office note?
 4               MR. RIEMENSCHNEIDER:  Are we talking
 5   October, November?
 6               MR. MISHKIND: The first visit.
 7         A.    That I haven't already mentioned?
 8         Q.    Yes, sir.
 9         A.    I believe she was a professor at
10   maybe Cleveland State.  That's one thing that
11   kind of comes to mind, I believe.  Other than
12   that, I can't think of anything else.
13         Q.    You saw her on November 2nd.  Let's
14   talk about that visit.  On November 2nd, she was
15   still bleeding; correct?  I'll wait until you
16   get the note in front of you.
17               (Pause.)
18         A.    Noted.
19         Q.    That she was still bleeding,
20   notwithstanding any treatment that had been
21   initiated?
22         A.    Correct.
23         Q.    Now, by this time I presume you
24   would have had the benefit of the CT scan?
25         A.    No, I didn't have the benefit of
0043
 1   having the CT scan.
 2         Q.    Go ahead.  I didn't mean to cut you
 3   off.
 4         A.    I recall trying to see if it was in
 5   the system but I didn't.  So I did not have that
 6   benefit.
 7         Q.    Do you have any explanation for why
 8   the CAT scan from October 25 would not have been
 9   in the system some eight or nine days later?
10               MR. RIEMENSCHNEIDER:  Note an
11   objection to the timing sequence of that, but go
12   ahead.
13         A.    No, I really don't have an
14   explanation for that.
15         Q.    Do you remember on November 2nd --
16   because it was only a week earlier that you had
17   seen this patient for the very first time with
18   complaints of abdominal pain, and asking your
19   nurse to see if the results from the emergency
20   room visit had been available -- do you remember
21   on this visit one week later looking for the
22   results that couldn't be accessed a week
23   earlier?
24         A.    I remember looking.
25         Q.    And your testimony under oath is
0044
 1   that those results were not available in the
 2   system?
 3         A.    I did not see them in the system.
 4         Q.    Well, not seeing them in the system
 5   and them not being in the system could be two
 6   different things.  Did you do everything that
 7   you reasonably could and should have done to
 8   access the CAT scan results from the emergency
 9   room when you saw her for the return visit on
10   November 2nd, 2005?
11         A.    I felt that I did what I reasonably
12   could do, and seeing her clinical status, I was
13   comfortable with continuing my action of giving
14   her Lupron and trying to at least make things
15   better for her.
16         Q.    Would you expect that the CAT scan
17   result from the October 25th emergency room
18   visit would have been in the system by November
19   2nd, 2005?
20         A.    I can't say that I would expect it.
21   And that's just sort of based on past
22   experience.
23         Q.    Were you disappointed on the second
24   visit when you didn't have presumably access to
25   the results of the emergency room visit from
0045
 1   October 25?
 2         A.    I can't say that I had that feeling
 3   of disappointment.
 4         Q.    Is it your testimony, doctor, that
 5   even if you had the results, seeing them now --
 6   we've gone over them; you have seen the CAT scan
 7   report -- is it your testimony that even on
 8   November 2nd, 2005, with the clinical findings,
 9   the patient's complaints, and all the
10   information that you had available from previous
11   visits, that with that CAT scan result, you
12   still wouldn't have done anything different?
13         A.    No.
14         Q.    Your testimony is you wouldn't have
15   done anything different or, no, you would have
16   done something different?
17         A.    No, I wouldn't have done anything
18   different at this time.
19         Q.    Okay.  As I did with the previous
20   visit, would you help me out and read what you
21   have for the November 2nd visit.
22         A.    Yes, sir.
23               56-year-old female, chief complaint
24   as above.  With -- and I reiterate the
25   dimensions 14.8 by 10.9 by 9.7 fibroid with
0046
 1   episode of quote, unquote, red degeneration.
 2   Patient read info, DeproLupron.  Discussed side
 3   effects.  Depo-Lupron 3.75 IM, Q month, for six
 4   months.  See me after second injection, as she
 5   is about to get the third injection.  And then
 6   prescriptions for -- actually, I don't know if
 7   this was a prescription or not, but I wrote,
 8   Motrin 800 BID and Vicodin as directed.
 9         Q.    Do you remember anything
10   independently about this visit like we talked
11   about with the previous visit?
12         A.    In either of these two times did I
13   feel that she was sick.  And I didn't get the
14   sense that she was having abdominal pain at this
15   visit.  I think that's it.
16         Q.    I wanted to give you -- I know that
17   you were doing a lot of thinking and I presume
18   you were trying to take yourself back to that
19   appointment and visualize what you could
20   remember independent of your note.
21         A.    Yes.
22         Q.    And have you shared with me
23   everything that you can remember?
24         A.    Yes.
25         Q.    Thank you.  The red degeneration,
0047
 1   again, was there further discussion with her
 2   about that emergency room visit so that you
 3   marked down, quote, red degeneration, or was
 4   that just sort of a carryover from your previous
 5   note?
 6         A.    This is a carryover.
 7         Q.    Now, it says Vicodin as directed.
 8   And Vicodin is for pain; true?
 9         A.    Yes.
10         Q.    And Motrin 800 milligrams twice a
11   day, 40 count, one refill, that would also be
12   either for pain or for inflammatory symptoms;
13   correct?
14         A.    Yes.
15         Q.    But your testimony is that on this
16   visit, you independently recall that she wasn't
17   complaining of any pain?
18         A.    I don't recall her complaining of
19   any pain at this visit.
20         Q.    So you gave her these prescriptions
21   or wrote these prescriptions in anticipation
22   that if she developed pain, she could nip it?
23         A.    I'm not sure if I actually wrote
24   prescriptions as opposed to kind of writing
25   down, you know, what she is on.
0048
 1         Q.    Doctor, is it your testimony that
 2   what I'm looking at here in terms of Motrin and
 3   Vicodin was just a resuscitation by you of what
 4   she was taking as opposed to an order for her to
 5   fill a prescription for these medications?
 6         A.    What do you mean by just a
 7   resuscitation?
 8               MR. RIEMENSCHNEIDER:  I think he
 9   said he doesn't recall either way.
10               MR. MISHKIND:  Let's not testify for
11   him.
12               MR. RIEMENSCHNEIDER:  I'm not
13   testifying for him.
14         Q.    Let me clarify for you, doctor.
15               (Discussion off the record.)
16         Q.    Doctor, the Motrin and Vicodin, we
17   talked about what they are used for.  Is it your
18   testimony that on November 2nd you did not
19   prescribe either or both of those?
20         A.    I'm not sure.
21         Q.    But your recollection is, whether
22   you prescribed them on that date or not, you
23   don't recall the patient being in pain; is that
24   an accurate statement?
25         A.    That's an accurate statement.
0049
 1   Actually sat and had a conversation about
 2   Depo-Lupron.
 3         Q.    That didn't mean that the patient
 4   wasn't in pain?
 5         A.    This is true.  But that's my sense
 6   that we just sat as you and I are sitting having
 7   a conversation.
 8         Q.    You don't know whether I'm in pain,
 9   do you?
10         A.    I don't know if you are in pain.  I
11   hope not.
12         Q.    Thank you.  Can you give me any
13   explanation for why you would prescribe Vicodin
14   and Motrin, if, in fact, you did on that date,
15   if the patient wasn't continuing to have pain?
16         A.    You know, the mechanism by which
17   Depo-Lupron works is a GnRH agonist.  You know,
18   it binds to itself; it kind of blocks that
19   communication between the ovary and the
20   pituitary gland.  And as it binds, before it
21   does its blocking, it can actually stimulate,
22   stimulates the receptors, so you can get surges
23   of GnRH.
24               And what is somewhat known is that
25   symptoms kind of get worse before they get
0050
 1   better with Depo-Lupron.  And usually I can get
 2   a feel as to how one is going to respond after
 3   about the second injection.
 4         Q.    If you, in fact, did prescribe those
 5   medications on that date, were you likely
 6   prescribing them as a prophylactic measure in
 7   anticipation of her response to the Lupron?
 8         A.    Yes.
 9         Q.    After November 2nd, you did not see
10   the patient again, did you?
11         A.    I did not see the patient again.
12         Q.    But you did have some telephone
13   encounters with her?
14         A.    I had a telephone encounter.
15         Q.    Okay.  And I would like to ask you a
16   couple questions about the encounters.
17               MR. MISHKIND:  I don't know if,
18   Dirk, you have the November -- it looks like
19   November 11.
20               MR. RIEMENSCHNEIDER:  Which one are
21   you talking about?
22               MR. MISHKIND:  Obviously there is
23   the note at 1:43 p.m. that Dr. Green -- let me
24   start with the question and maybe you will be
25   able --
0051
 1               MR. RIEMENSCHNEIDER:  I think they
 2   are in these three pages.  Mine are a little
 3   different than yours.
 4         Q.    Doctor, it appears from the records
 5   that Cynthia Jordan, who is the sister of
 6   Lillian Dailey, called on November 11th
 7   indicating that her sister -- that the pain
 8   killers that she was taking were less effective;
 9   that she was feeling a lot of pressure in the
10   rectum and lower right side of the pelvis; that
11   she had had the first Depo-Lupron the week
12   before with you; that she had been to the
13   emergency room two weeks earlier and didn't want
14   to go back to the emergency room, and that she
15   was, in the sister's opinion, she was
16   deteriorating in the last two days, vomited last
17   night and wants Dr. Green to call her.  Do you
18   see that?
19               MR. RIEMENSCHNEIDER:  It's right
20   here.
21         Q.    Did I read that accurately?
22         A.    I see that.
23         Q.    And I read it accurately in terms of
24   what was taken down by it looks like -- I'm
25   assuming it's this L. Dyckman D-Y-C-K-M-A-N, RN,
0052
 1   or at least someone from Kaiser took down that
 2   information from the telephone call by Cynthia
 3   Jordan.  Am I being fair in that statement?
 4         A.    Yes.
 5         Q.    And with that information, you would
 6   expect, would you not, that Kaiser would
 7   communicate to you, Dr. Green, the information
 8   about Lillian's condition; true?
 9         A.    I would think that I would have been
10   alerted to this.
11         Q.    This kind of information, is it sent
12   to you by way of an email system?  How is the
13   call or how is the data that is entered in this
14   encounter document brought to your attention?
15         A.    I can't say how this one was ever
16   brought to my attention.  I really don't
17   remember this.  But it would be, I think, via
18   our email system.
19         Q.    And the email system shows that this
20   was routed to you as -- you, Albert Green --
21   routed to 00700 Green, Albert M.D.  Do you see
22   that?
23         A.    Yes.
24         Q.    And right below that, it says member
25   call back and need to reroute message to
0053
 1   Dr. Green.  Member states at sister's house.
 2   Member taking Motrin, 800 milligrams, by mouth,
 3   twice a day, with Vicodin by mouth as needed
 4   without relief from pelvic and thigh pain.  Do
 5   you see that?
 6         A.    Yes.
 7         Q.    Now, your testimony a moment ago was
 8   when you saw her on November 2nd, you don't
 9   recall her having pelvic or thigh pain, do you?
10         A.    I don't recall that.
11         Q.    And you don't recall whether or not
12   you actually wrote a prescription for Motrin and
13   Vicodin or whether you were just reviewing with
14   her what medication she was taking; true?
15         A.    Correct.
16         Q.    Member is taking fluids, voiding
17   without difficulty.  Member states did vomit
18   last night and one time this a.m.  And then it
19   says advise per -- and I'm not sure what per
20   means.  Abdominal pain.  Probably protocol.
21         A.    Okay.  Yes.
22         Q.    Now, this information was eventually
23   routed to you by an email system; true?
24               MR. RIEMENSCHNEIDER:  Objection.
25         A.    I don't recall this.
0054
 1         Q.    If you had been notified of the
 2   content, the full content of these calls, and
 3   the significance of the description,
 4   deteriorating, the pain, et cetera, what would
 5   you have done, doctor?
 6               Doctor, as you are looking at the
 7   notes, you said that you don't recall this
 8   information, you don't recall getting this
 9   information.  So my question to you is, if that
10   information was provided to you, what would you
11   have done?
12         A.    Knowing that she, you know, got an
13   injection several days ago and that likely it's
14   a result of the Lupron binding to the receptors,
15   I may have changed pain medication or advised
16   maybe going back to the ER.
17         Q.    Doctor, there is a note at 1:43 p.m.
18   It looks like you made a telephone call, and
19   correct me if I am wrong, but it appears that
20   your note reflecting your telephone call says
21   the only thing extra I can offer is Demerol, 50
22   milligrams, one to two tabs by mouth every four
23   to six hours as needed, number 40 count.  If per
24   chance I come to the office, then I'll sign,
25   otherwise you will have to get it signed by
0055
 1   someone else.
 2         A.    Okay.
 3         Q.    Let me finish reading for the
 4   record.
 5               I don't have any other advice other
 6   than pain management.  Do you remember that
 7   telephone call?
 8         A.    Yes, I remember.
 9         Q.    Doctor, you weren't really
10   suggesting that at this particular point, with
11   all the information you had, that you would
12   recommend to Lillian Dailey that she go for pain
13   management, were you?
14         A.    No, I wasn't recommending that she
15   go for pain management.  I remember this was
16   when -- I was responding to writing it this way
17   when I was on call at the hospital.  And the
18   situation, and being on call, it's not as if I'm
19   in the office or know when I'm going to be back
20   in the office, and so I do recall having them
21   write a prescription for Demerol and having
22   somebody in the office actually sign, because
23   they would need a DEA number and I couldn't give
24   that over the telephone.
25               My thinking was that the increase in
0056
 1   pain is probably from the Lupron; kind of, I
 2   thought it made sense.  And that she should have
 3   been heading towards her next injection, at
 4   which time I would be seeing her again.  That
 5   was my thinking at that time.
 6         Q.    Did you have even within your
 7   differential an index of suspicion that the
 8   patient's intractable pain was related to either
 9   a uterine sarcoma or a uterine cancer?
10               MR. RIEMENSCHNEIDER:  Objection.  Go
11   ahead.
12         A.    I don't know if I would say
13   intractable pain.
14         Q.    Let me strike the word intractable.
15   But significant pain that was not being relieved
16   by the Vicodin and by the Motrin?
17         A.    I'm not surprised.  And uterine
18   sarcoma was not in my differential.
19         Q.    Doctor, can you and I agree that
20   ultimately you missed the diagnosis of uterine
21   sarcoma?
22               MR. RIEMENSCHNEIDER:  Objection.
23         A.    No, we can't agree on that.
24         Q.    Can we agree that ultimately the
25   symptoms that this patient had were not only
0057
 1   consistent with uterine sarcoma, but ultimately
 2   proved to be symptoms of her uterine sarcoma?
 3               MR. RIEMENSCHNEIDER:  Objection.  Go
 4   ahead.
 5         A.    Repeat the question.
 6         Q.    Sure.  Can we agree that the
 7   symptoms that she had were not only consistent
 8   with a uterine sarcoma but ultimately proved to
 9   be symptoms of her uterine sarcoma?
10               MR. RIEMENSCHNEIDER:  Objection.
11         A.    I can't say that her symptoms are
12   consistent with uterine sarcoma.
13         Q.    Why?
14         A.    Because this is not uncommon for me
15   to see with fibroids.  I would lean more towards
16   her having a degeneration of a fibroid, and with
17   those symptoms, then this actually being a
18   sarcoma, seeing how rare it is.
19         Q.    Even though sarcomas are rare, if
20   you have the signs and symptoms of a rare
21   condition, can you and I agree that it's not an
22   excuse to say it's a rare condition?
23               MR. RIEMENSCHNEIDER:  Objection.
24         A.    I can't say that it was an excuse.
25   Based on the information and at this time, I
0058
 1   would still lean toward this being a combination
 2   of pain from Lupron and her having fibroids.
 3               Again, you know, I have to hold on
 4   to what I know about sarcomas and their
 5   presenting symptoms.  I mean, they are not
 6   really specific and there is at least two things
 7   in favor of not thinking along those ways and
 8   that is really it wasn't rapid enlargement of
 9   her uterus and she did not have profuse bleeding
10   that necessitated transfusion.
11         Q.    How did you know it wasn't a rapid
12   enlargement when you only referenced one
13   ultrasound in your notes in October and in
14   November?  What points of reference were you
15   using to show the rapidity of the uterine
16   enlargement?
17         A.    Based on her abdominal exam, and the
18   results of the second ultrasound she had, I did
19   not see any difference at that time.
20         Q.    Which second ultrasound?  The one in
21   May?
22         A.    The 14. --
23         Q.    Are you talking about the one --
24         A.    The one that I have listed in my
25   note.
0059
 1         Q.    Okay.  Now, doctor, you said that
 2   you looked at the notes subsequent to see what
 3   the outcome was, so you know that your
 4   colleague, Dr. Shuffer, referred Lillian to The
 5   Cleveland Clinic to an OB/GYN oncologist because
 6   of his concern that she had uterine sarcoma;
 7   correct?
 8               MR. RIEMENSCHNEIDER:  Who is she?
 9   You said because of her.
10               MR. MISHKIND: Because she had
11   uterine sarcoma.  Lillian.
12               MR. RIEMENSCHNEIDER:  I
13   misinterpreted it.
14               (Discussion off the record.)
15         A.    I'm aware that he referred her to
16   The Cleveland Clinic GYN oncology for concern of
17   a possible sarcoma.
18         Q.    And then we ultimately know, or you
19   ultimately know what the diagnosis was?
20         A.    Not in writing.
21         Q.    So you never saw the results from
22   the consult?
23         A.    I never saw a pathology.
24         Q.    Okay.  In any event, doctor, do you
25   have an opinion as to whether -- not whether you
0060
 1   missed the diagnosis, but whether or not she in
 2   fact had uterine sarcoma in October and November
 3   when you saw her?
 4         A.    There is no way I would know that.
 5         Q.    I take it then that you don't have
 6   an opinion as to how long, if at all, before
 7   October she had a uterine sarcoma?
 8               MR. RIEMENSCHNEIDER:  Objection.
 9         A.    I would not know that.
10         Q.    Okay.  Did you learn of her demise
11   after the litigation or were you aware that she
12   died following her hysterectomy before any
13   lawsuit was filed?
14         A.    I only knew this when I got the
15   litigation.
16         Q.    Did you ever have any contact with
17   any family members, husband, her daughter, her
18   sister, or any other family members during
19   either of the two visits or during the phone
20   encounter -- we know that Cynthia Jordan made
21   the phone call, but do you remember having any
22   contact with Cynthia when you called back about
23   the Demerol or was it with the patient herself?
24         A.    I don't recall -- I think you asked
25   two aspects of that question.  I did not have
0061
 1   any contact with her or family members at any
 2   time.
 3         Q.    I probably asked two or three
 4   different questions in one and I'll admit to
 5   that.
 6               After her death, no contact with the
 7   family?
 8         A.    Correct.
 9         Q.    And during the office visits, you
10   don't have any recollection of any family
11   members being there?
12         A.    No.
13         Q.    And you don't have any recollection
14   of talking with her sister, husband, daughter,
15   on the telephone during this telephone encounter
16   event?
17         A.    No, I don't.
18         Q.    Okay.  Is there anything about
19   either of the office visits that you recall, the
20   first or the second one, that we haven't already
21   discussed?
22         A.    No.
23         Q.    Anything about that telephone
24   encounter and where you were and indicating that
25   someone else with a DEA license had to sign it,
0062
 1   anything else that you remember about that
 2   telephone encounter other than what we have
 3   talked about?
 4         A.    No, I don't.
 5               MR. MISHKIND: Thank you.  No further
 6   questions.
 7               MR. RIEMENSCHNEIDER:  We'll reserve
 8   signature.
 9                      - - - - -
10          (Deposition concluded at 3:53 p.m.)
11              (Signature not waived.)
12                      - - - - -
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0063
 1                       AFFIDAVIT
 2         I have read the foregoing transcript from
 3   page 1 through 62 and note the following
 4   corrections:
 5   PAGE  LINE     REQUESTED CHANGE
 6   
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18   
19   
20                  ALBERT GREEN, M.D.
21   
22   
           Subscribed and sworn to before me this
23   day of          , 2008.
24   Notary Public
     My commission expires            .
25   
0064
 1                     CERTIFICATE
 2   State of Ohio,
                        SS:
 3   County of Cuyahoga.
 4   
           I, Vivian L. Gordon, a Notary Public
 5   within and for the State of Ohio, duly
     commissioned and qualified, do hereby certify
 6   that the within named ALBERT GREEN, M.D. was by
     me first duly sworn to testify to the truth, the
 7   whole truth and nothing but the truth in the
     cause aforesaid; that the testimony as above set
 8   forth was by me reduced to stenotypy, afterwards
     transcribed, and that the foregoing is a true
 9   and correct transcription of the testimony.
10         I do further certify that this deposition
     was taken at the time and place specified and
11   was completed without adjournment; that I am not
     a relative or attorney for either party or
12   otherwise interested in the event of this
     action.  I am not, nor is the court reporting
13   firm with which I am affiliated, under a
     contract as defined in Civil Rule 28(D).
14   
           IN WITNESS WHEREOF, I have hereunto set my
15   hand and affixed my seal of office at Cleveland,
     Ohio, on this 5th day of May, 2008.
16   
17   
18   
19                   Vivian L. Gordon, Notary Public
                     Within and for the State of Ohio
20   
     My commission expires June 8, 2009.
21   
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23   
24   
25