1 1 IN THE COURT OF COMMON PLEAS 2 SUMMIT COUNTY, OHIO 3 4 5 THERESA F. MCGARVEY, etc., ) et al., ) CASE NO. CV 98 06 2523 6 ) Plaintiffs, ) 7 ) versus ) 8 ) LAUREL LAKE NURSING HOME, ) DEPOSITION OF 9 et al., ) ) MICHAEL S. HICKEY, M.D. 10 Defendants. ) 11 12 - - - - - - - 13 14 Deposition of MICHAEL S. HICKEY, M.D., a Witness 15 herein, called by the Defendants for Cross-Examination 16 pursuant to the Ohio Rules of Civil Procedure, taken 17 by the undersigned, Linda McAnallen, a Stenographic 18 Reporter and Notary Public in and for the State of 19 Ohio, by means of videoconferencing from Kinko's, 6901 20 Rockside Road, Independence, Ohio, on March 27, 2000, 21 at 10:00 a.m. 22 23 - - - - - - - 24 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 2 1 APPEARANCES: 2 On Behalf of the Plaintiffs: 3 Tobias J. Hirshman, Attorney at Law 4 Ellen Hobbs Hirshman, Attorney at Law Linton & Hirshman 5 Hoyt Block Suite 300 700 West St. Clair Avenue 6 Cleveland, Ohio 44113-1230 7 Calvin F. Hurd, Jr., Attorney at Law 1750 Standard Building 8 Cleveland, Ohio 44113 9 10 On Behalf of the Defendant Dr. Marquart: 11 Michael Lyon, Attorney at Law Lindhorst & Dreidame 12 312 Walnut Street Suite 2300 13 Cincinnati, Ohio 45202 14 15 On Behalf of the Defendant Dr. Litman: 16 David M. Best, Attorney at Law 4900 West Bath Road 17 Akron, Ohio 44333 18 19 On Behalf of the Defendants Laurel Lake Nursing Home and Laurel Lake Retirement Community, Inc.: 20 Frederick P. Vergon, Jr., Attorney at Law 21 Smith, Marshall, Weaver & Vergon 500 National City, East Sixth Building 22 1965 East Sixth Street Cleveland, Ohio 44114 23 24 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 3 1 APPEARANCES (Continued): 2 On Behalf of the Defendants Akron General Medical 3 Center, Akron Clinic Physician Group and Akron General Health System: 4 Martin Franey, Attorney at Law 5 Rawlin, Gravens & Franey 1240 Standard Building 6 Cleveland, Ohio 44113 7 8 - - - - - - - 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 4 1 I N D E X 2 EXAMINATION BY PAGE 3 Mr. Lyon 4 4 Mr. Franey 53 5 6 EXHIBITS MARKED 7 None 8 9 - - - - - - - 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 5 1 WHEREUPON, 2 MICHAEL S. HICKEY, M.D., 3 after being first duly sworn, as hereinafter 4 certified, testified as follows: 5 CROSS-EXAMINATION 6 BY MR. LYON: 7 Q. Doctor, please state your full name and your 8 professional address for us, if you will. 9 A. Michael Steven Hickey, 1325 Pennsylvania Avenue, 10 Fort Worth, Texas 76104. 11 Q. Doctor, you were kind enough to provide me a copy 12 of your curriculum vitae. I received it a couple 13 of days ago. My question is are there any 14 publications, abstracts, etc., which need to be 15 added to this document? 16 A. Not at this time. 17 Q. Do you have the document in front of you? 18 MR. HIRSHMAN: He does now. 19 A. Yes. 20 Q. I would like you to go through your C.V. and point 21 out for me what articles in your professional 22 opinion deal directly or indirectly with the 23 issues in this case. 24 A. Under journal articles -- I'll go through these 25 slowly. 1984, we were dealing with home TPN and LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 6 1 catheters. We may have addressed Coumadin therapy 2 in that. I don't know if I did or not. 3 Q. Which one is that, number two? 4 A. Under bibliography, journal articles, number one, 5 1984, we talked about long-term TPN therapy. I 6 may have talked about anticoagulant therapy in 7 that. I don't know for sure. 8 Q. Fair enough. 9 A. Coming down the list, the second page, book 10 chapters, next page, I don't think there's any 11 article there specific to Coumadin therapy. 12 Q. Would you be so kind, sir, as to describe for me a 13 typical week in your professional life and 14 delineate between the percentage of time you spend 15 in your office versus surgical? 16 A. I would say that probably 80 percent, 80 to 90 17 percent of my time I spend taking care of 18 patients, either operating, dealing with trauma, 19 dealing with ICU patients. 20 Q. Do you have any subspecialty in surgery? 21 A. I do trauma surgery, which you may consider a 22 subspecialty of the field of surgery. I also do 23 nutrition. Those are the two areas where I focus 24 primarily. 25 Q. Have you ever performed a splenectomy? LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 7 1 A. I did two last week and probably -- In my career? 2 Q. Yes, sir. 3 A. Probably a couple hundred in my career. 4 Q. Can you recall whether any of your couple hundred 5 splenectomies resulted in death of the patient? 6 In other words, did the patient die after you did 7 a splenectomy? 8 A. Death directly related to the splenectomy, maybe 9 one or two, but those patients were hypotensive, 10 in shock, and had other associated injuries, like 11 liver fracture, bowel disruption, closed-head 12 injury, neck fractures, pulmonary injuries. 13 Q. In any of those couple hundred splenectomies, was 14 the pathology that you dealt with caused directly 15 or indirectly by anticoagulants? 16 A. Not to my knowledge. 17 Q. Is it your opinion that the splenectomy in this 18 case, the one we're about to talk about, was done 19 as a direct result of a pathology caused by 20 Coumadin? 21 A. Yes, sir. 22 Q. Why is that? 23 A. Because there was no -- when I reviewed the 24 records, there was no evidence of any trauma. We 25 have a patient who has a massive bleed into the LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 8 1 chest and then has a bleed into the abdomen, and 2 it's a documented complication of 3 overcoumadinization. And I think that the patient 4 bled subcapsular, the capsule erupted and bled. 5 And the other reason I think that is that there 6 was blood from the gallbladder bed, there was 7 bleeding in the pancreatic bed, and there was some 8 bleeding from the liver surface. Those are all 9 anticoagulant-related pathology. 10 Q. I heard you mention the word "documented". Can I 11 assume that you're referring to literature when 12 you say documented? 13 A. If you read the literature -- I can't give you 14 specifics, but four solid organs that are known to 15 bleed when the patient is overcoumadinized are 16 pancreas, kidney, spleen, and liver. It's talked 17 about in the literature. I can't give you a 18 specific article, but it's a known complication of 19 excessive coumadinization. 20 Q. Have you ever read a specific article that stands 21 for that proposition? 22 A. I've read textbooks of surgery, and they always 23 refer to it. I have not read a specific article 24 published separate from that, such as in a 25 journal, but I have read that in textbooks of LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 9 1 surgery. 2 Q. And those textbooks are authored by whom, sir? 3 A. There are several. Schwartz's textbook of 4 surgery, Christopher's textbook of surgery. I was 5 on the teaching staff at U.C. as an associate 6 professor, and we used to tell the residents and 7 it was part of our discussions about Coumadin 8 therapy that splenic ruptures can occur. 9 Q. In your professional opinion, are Schwartz and 10 Christopher's textbooks of surgery authoritative 11 texts relative to the area of surgery? 12 A. I would say so, yes. 13 Q. Would you be so kind, sir, to delineate those 14 journals that you review on a regular basis to 15 keep abreast of the changing state of the art of 16 surgery? 17 A. I read the Journal of Trauma, which is a 18 publication by the American Association for 19 Surgery and Trauma, I read the Annals of Surgery 20 and several others, not on a regular basis, but 21 those are the two key. 22 Q. As to the Annals of Surgery and Journal of Trauma, 23 in your professional opinion are those peer 24 journals authoritative? 25 A. They set the standard for most of the practice of LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 10 1 trauma surgery and general surgery. Articles in 2 there are very high quality and they're under peer 3 review. 4 Q. When you say they set the standard, in other 5 words, they set what is the standard of care; fair 6 statement? 7 A. No. When I say set the standard, they set the 8 standard as far as our concerns about 9 complications and possible iatrogenic injuries. 10 Most of the information there is very factual and 11 it's used in the management of patients. 12 Q. In your professional opinion, are those two 13 journals reliable? In other words, when you read 14 those journals, do you feel you have a right or an 15 expectation that the information contained therein 16 is reliable and you can incorporate that into your 17 everyday practice? 18 A. Yes. I don't think we have any other -- Probably 19 those are the best two journals other than 20 probably the Journal of Obstetrics and Gynecology. 21 This is what every surgeon in the country uses as 22 their reference point and refers back to those 23 articles and journals. 24 Q. Sir, have you ever testified before a jury as an 25 expert in a medical malpractice case? LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 11 1 A. I testified one time. This was in relation to an 2 air embolism case. It was in Redding, California. 3 It was probably about twelve or thirteen years 4 ago. 5 Q. Have you sat for a deposition the way we're doing 6 today in any other cases? 7 A. I've never sat for a videoconference deposition. 8 I have sat for one deposition in the last year. 9 That dealt with a ruptured kidney and hemorrhage, 10 bleeding, Miami, Florida. I think the attorney's 11 name was Rodney Logan. Prior to that, in thirteen 12 years in the San Francisco area when I was on the 13 staff at the university, I think I gave two other 14 depositions. One was the air embolism and the 15 other I can't remember, but I know I did two. And 16 then prior to that, I did no other depositions. 17 Q. The case in Florida that you made reference to 18 relative to hemorrhage and bleeding, is that case 19 still pending? 20 A. No. That case never went to trial. It was I 21 guess settled out of court. 22 Q. For whom did you testify? 23 A. I testified for the plaintiff. 24 Q. What were the facts of that case, do you recall? 25 A. It dealt with a receiving hospital which was not a LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 12 1 Level II but a Level III hospital which -- no, it 2 was a Level II hospital that received a patient 3 who had been in a motor scooter accident and had 4 significant bleeding from the retroperitoneum. It 5 was a ruptured kidney. And it dealt with taking 6 the patient to the wrong trauma center, should 7 have gone to a Level I, not a Level II. The 8 patient subsequently exsanguinated and died. And 9 there was some deviation from the standard of 10 care as far as management of the patient for 11 bleeding. 12 Q. Doctor, the report that I have in front of me 13 that you authored is dated the 16th day of 14 December, 1999. Do you have that report in front 15 of you? 16 A. Yes, I do. 17 Q. Is this report the only written report, memoranda, 18 notes, that you prepared and sent to Mrs. Hirshman 19 on this case? 20 A. It's the only written report that I have made. 21 And after doing this, I did receive copies of 22 expert witnesses for Dr. Litman, which I reviewed. 23 That's about the only other information. And I 24 think there were two nurses' depositions which I 25 received subsequent to that publication. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 13 1 Q. Relative to this report, would you give me the 2 exact dates and be as precise as you possibly can 3 of the medical records that you have reviewed 4 which formulate the basis of the opinions which 5 appear in this report? 6 A. Well, if I prepared the report on the 16th of 7 December, I would say that I probably received the 8 reports prior to that. The exact dates on when I 9 received those reports, I can't remember. 10 Q. No, I'm sorry, it was my fault. You misunderstood 11 my question. Please tell us what are the medical 12 records, the dates of the care and treatment of 13 the plaintiff's decedent that you reviewed which 14 formulate the basis of your opinions. 15 A. I reviewed the records from April of 1995 to 16 August of 1995, I saw the records from 11-20, I 17 saw the operative records for 12-8, 12-9, I 18 reviewed the records when he had the sternal 19 debridement, which was on the 21st of December, I 20 reviewed the records from 17 through 19, nursing 21 home, I reviewed the records from Akron General 22 which dealt with the bleeding from 2-5 to 2 -- I 23 think he was sent over to Intensiva around the 24 first part of April, I reviewed the Intensiva 25 notes, I reviewed the records from the nursing LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 14 1 home, and I forget the -- the last nursing home 2 where he passed away. 3 MR. HIRSHMAN: Heritage Care? 4 A. Heritage Care. And I reviewed the nursing notes 5 or doctors' records from I think it's Benson or 6 Bedford Hospital. 7 Q. What was the last date of any medical record you 8 reviewed on this patient? 9 A. The date of his death, 12-16-98. 10 MR. HIRSHMAN: You've also seen the 11 death certificate, I believe, haven't you? 12 THE WITNESS: Well, that was included, 13 the death certificate. 14 Q. In your professional opinion, sir, what was his 15 mechanism of death? 16 A. I think he died a respiratory death, possibly 17 cardiac, but it sounded more respiratory based 18 upon his history starting after his surgery on the 19 9th and proceeding to multiple aspirations, having 20 to require reintubation several times, finally a 21 tracheostomy. I also saw there was a comment 22 about multiple organ failure. I think a man his 23 age subjected to all these problems, multiple 24 organ failure is very clear, but I think the key 25 was respiratory failure. He desatted I think to LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 15 1 79 at one point and became very tachypnic and 2 cyanotic, and I think the day of his demise the 3 wife decided not to proceed with -- I think she 4 made him a DNR. 5 Q. In your professional opinion, was the splenectomy 6 which was performed on the plaintiff's decedent 7 performed in your opinion in accordance with the 8 standard of surgical care? 9 A. Could you repeat that again, please? 10 Q. Sure. In your professional opinion, was the 11 splenectomy that was performed by the surgeon on 12 this patient in your opinion performed in 13 accordance with the standard of surgical care? 14 A. Yes. 15 Q. Based on your education, training, your 16 experience, and your review of these medical 17 records, do you have an opinion as to whether the 18 splenectomy was successful? In other words, did 19 it achieve the goals of a splenectomy? 20 A. I think that's a two-part answer. The first part 21 is yes, they got the spleen out, they tied off the 22 major bleeding vessels, and yes, the splenectomy 23 was a success. 24 The problem they were faced with when they 25 went into the abdomen was due to the intense LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 16 1 coagulopathy, they had bleeding from the liver, 2 gallbladder bed, and in the surgical arena that's 3 what we refer to as a coagulopathy. 4 Yes, they got the spleen out, but I don't 5 know that they were able to control all the 6 bleeding, and that's why they subsequently put the 7 packs in and packed the abdomen and then went back 8 on 12-10 and removed the packs. 9 So obviously there was still bleeding 10 inside the intraperitoneal space. They did remove 11 the spleen. There are comments in the operative 12 note that there was a lot of bleeding from the 13 splenic bed, and that makes sense, because when 14 you're in a coagulopathy you continue to ooze. 15 Even in a normal patient you can see that 16 sometimes. But when someone has a PT in the 15-16 17 range, that is a challenge. 18 So yes, they succeeded in getting the 19 spleen out, but no, they weren't able to control 20 all the intra-abdominal bleeding due to the 21 prolonged PT. 22 Q. Have you, sir, ever formulated a diagnosis of 23 disseminated intravascular coagulation? 24 A. I don't deal with that on a routine basis. And as 25 far as the mechanisms and the physiology behind LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 17 1 that, I would refer you to a hematologist or a 2 pathologist. I know the basics of DIC. 3 Fibrinogen levels drop and fibrin split products 4 or D-dimers go up, and you have prolongation in 5 your PT and PTT. 6 DIC can occur from many different things, 7 like infection. It can occur from -- just massive 8 blood transfusions can push a patient into DIC. 9 It's not uncommon to see that in the operating 10 suite on a trauma patient that requires multiple 11 units of blood. We very often have to do exactly 12 what they did in this case, pack the abdomen, get 13 them to the ICU, warm them up, and try to come 14 back in two or three days to unpack them. 15 Q. When you reviewed the medical records, sir, did 16 you review the lab values that are reflecting some 17 of the components about which you just spoke, 18 D-dimer values and the split products, etc., etc., 19 to determine whether the diagnosis of disseminated 20 intravascular coagulation was correct in this 21 case? 22 A. There were comments in reference to patient in DIC 23 question mark early in the 2-5, 2-6, 2-8 24 resuscitation. And then later on I did see a 25 D-dimer that I think was 10, which is a little LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 18 1 elevated, but you also have to look at the volume 2 of blood that the patient received. This patient 3 received a tremendous amount of blood between 2-6, 4 2-7 and 2-8 and 2-9. 5 Q. Well, my question is, sir, if the treating 6 physicians in this case diagnosed this patient as 7 having disseminated intravascular coagulation, you 8 wouldn't disagree with that diagnosis, because as 9 you've already told us, you would defer on that 10 issue; true? 11 A. Could you repeat that one more time? 12 Q. Sure. If the treating physicians in this case 13 diagnosed this patient as having disseminated 14 intravascular coagulation, you would not disagree 15 with that diagnosis for two reasons: number one, 16 because, as you've stated, you would defer on the 17 issue of DIC, and, number two, you didn't treat 18 this patient and you were not in a position to 19 make that diagnosis? 20 A. I don't agree with both of those statements. One, 21 I think that the reason that the patient went into 22 DIC was the massive blood loss into the chest, 23 into the abdominal cavity. And I think that DIC 24 may have played a role, but I think the key role 25 is the massive blood loss due to bleeding LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 19 1 intra-abdominally. Whether or not he developed 2 DIC at some point down the line, he could very 3 well have done that, but I don't think that is the 4 cause for the splenic rupture. 5 Q. Well, sir, what in your professional opinion is 6 the cause? 7 A. I think that the cause for this rupture of the 8 spleen was due to overcoumadinization. When the 9 patient arrived on February 5th, he had a PT and 10 an INR of 88 and 44 respectively, and then I think 11 on 2-6 it was 76 and 36. Therapeutically if you 12 take a standard pharmacology text, anything over 4 13 indicates that this patient will bleed -- could 14 have potential for bleeding at a level of 4. 15 If you look back at his operation on his 16 sternal resection, on that operation on the 31st 17 of December he received I think on the 31st four 18 units of packed cells and two of fresh frozen, and 19 then the following day he got four units of packed 20 cells and four of fresh frozen and his PT was 21 still 15 and his INR was in the 1.8 range. 22 What it tells me is even though you get 23 your PT down in the 15 range and the INR in the 24 1.8 to 2 range for this gentleman, he's still not 25 totally corrected. And I think what happened is LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 20 1 that he bled into his chest first. This started a 2 whole cascade of events. He started bleeding 3 subcapsularly around his spleen. Eventually when 4 the tension underneath the capsule was so strong, 5 it burst, and that's why he became hypotensive and 6 dropped his pressure, 2-7, 2-8, and subsequently 7 had to have a splenectomy. 8 Q. When in your professional opinion based on your 9 records do you see clinical evidence, first 10 clinical evidence of bleeding into his chest? 11 Give me a date and a time. 12 A. Well, on 2-4 he had a low-grade temperature, and 13 according to the nursing home notes was having 14 some complaints of shoulder and chest pain. Then 15 on 2-5 I think Dr. Marquart saw him, if I'm not 16 mistaken. He saw him in the morning and said that 17 his chest was clear. But later that day, he 18 started complaining of significant chest wall, 19 left side, and left shoulder pain. Shoulder pain 20 to me could indicate a lot of different things. 21 Eventually he was taken to Akron General, 22 and on 2-5 they did a chest CT, and they saw I 23 think it was blood in the chest. And there was 24 some debate about whether or not to put a chest 25 tube in, but because his INR was a little LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 21 1 prolonged I think at 1.8, they wanted to wait 2 until he was down to 1, 1.03, before they put a 3 chest tube in. Then about 2-6 they did a chest -- 4 they have a CT and they see the blood in the 5 chest. 2-7 was the bad day where he desatted I 6 think down low into the 92 percent category, his 7 hemoglobin starts to drop, and we see that -- I 8 think he gets intubated on the 7th. He has a 9 respiratory arrest. And then sometime I think 10 late 2-7 and early 2-8 he had a rupture of his 11 spleen, because I think there's a CT dated 11 12 a.m. -- I'm not 100 percent sure on this -- on the 13 8th which indicates that he had a peritoneal 14 cavity that had significant blood in it. So I 15 think the bleeding occurred somewhere between 2-7 16 afternoon-evening and 2-8. 17 MR. HIRSHMAN: The question was, 18 Doctor, when do you first perceive clinical 19 evidence of bleeding into the chest. 20 A. That was 2-5. 21 Q. Could you point out to me, sir, something in the 22 medical records that supports your opinion that 23 there was bleeding into the chest on 2-5, a film, 24 a CT scan, something? Do you have that in front 25 of you? LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 22 1 A. No, I don't. 2 MR. HIRSHMAN: You want a film or a CT 3 scan rather than clinical observations, is 4 that what you're saying? 5 MR. LYON: I'd like him to tell me 6 where in the record on 2-5 is there clinical 7 evidence of bleeding into the chest. 8 MR. HIRSHMAN: I think he just told you 9 that. 10 MR. LYON: I don't think so. 11 A. On 2-5 he started complaining of left chest wall 12 pain and left shoulder pain, and he was 13 transferred to Akron General. I think there was 14 a chest x-ray done at that point. And I think on 15 the physical exam in the notes that I read there 16 were some decreased breath sounds on that side. 17 I think it was actually decreased on both sides. 18 Q. Did you read the CT scan of 2-6-98? 19 A. 2-6, the chest CT? 20 Q. The abdominal and chest CT, that's correct. 21 A. Right. The chest CT on 2-6 indicates as I recall 22 air bronchograms, there was some evidence of 23 blood in both chests, and the CT of the abdomen at 24 that point shows no blood in the peritoneal 25 cavity. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 23 1 Q. Sir, do you have that 2-6 chest CT in front of 2 you? 3 MR. HIRSHMAN: I have a copy of it that 4 I can provide to him, if you'll hold on a 5 second there, Michael. 6 MR. LYON: Sure. 7 MR. HIRSHMAN: You're talking about the 8 chest portion of it, I presume? 9 MR. LYON: That's correct. 10 MR. HIRSHMAN: Hold on one second. 11 A. I have a chest CT with contrast enhancement dated 12 2-6-98, sir. 13 Q. Where in that report, sir, does it say there's 14 blood in the chest? 15 A. Collapsed consolidation in the left lower lobe 16 with air bronchograms. You don't get air 17 bronchograms -- He probably bled into his 18 parenchyma. You have to have fluid within the 19 lung parenchyma to start getting air bronchograms. 20 Patchy posterior left lower lobe 21 infiltrate. Right pleural effusion. That's 22 probably blood. That's what it looked like on the 23 CT scan. 24 Q. Did you look at these CT scans yourself? 25 A. I did not see the entire set of CTs. I saw one CT LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 24 1 of the chest which shows the air bronchograms. It 2 says, "There is a moderately large mixed 3 attenuation of fluid collection within the left 4 chest as described above, suspicious for 5 hemothorax." That I would tell me -- attenuation 6 means that there's a fluid medium that is more 7 dense than air in the left chest. "There is 8 diffuse right lung infiltrate, left upper lobe 9 infiltrate, and left lower lobe consolidation." 10 Q. I just want to understand what you're saying here, 11 so that when we get to trial I'll know what you're 12 saying. It's your opinion from reading this 13 report that the things that you just read are 14 reflecting a manifestation of blood in the chest; 15 is that correct? 16 A. Yes. 17 Q. And I heard you say that you actually looked at 18 one of these films? 19 A. I saw one cut of the CT which shows fluid in the 20 chest, yes. I don't have the entire set of CTs. 21 Q. And is it your testimony that that one cut of the 22 CT which showed fluid in the chest -- in your 23 opinion that fluid was blood; is that right? 24 A. Yes, sir. 25 Q. Did you look at any other CT scans of this patient LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 25 1 other than the one to which you just referred? 2 A. I saw a CT of the abdomen. I saw one cut from the 3 CT of the abdomen in which the spleen does not 4 show a large hematoma. 5 Q. What is the date of that CT scan, do you know? 6 A. That would be the 2-6 CT. 7 Q. Are those the only CT scans you actually looked 8 at? 9 A. Yes. 10 Q. Did you look at the CT scan report of 2-8-98? 11 A. Yes, I did. I have it right here. 12 Q. Did you compare or contrast that report to the 13 2-6-98 report? 14 A. Yes. All I have are the impressions. I can 15 compare the impressions. 16 Q. Well, when you say all you have are the 17 impressions, what do you mean by that? 18 A. The impression is at the bottom of the report 19 from -- 20 MR. HIRSHMAN: I think he wants to know 21 what you mean by your statement that you 22 only have the impressions. 23 A. I didn't have the actual CTs until just recently 24 to look at the CTs from the 6th, so my comparison 25 was looking at the formal radiologic reports on LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 26 1 both 2-6 and 2-8 and comparing what the final 2 impression was by the radiologist reading them. 3 MR. HIRSHMAN: He's not suggesting he 4 has a report that only has the impressions 5 and not the rest of the description. He has 6 the whole thing. 7 Q. Well, let me ask you this, sir. When did you see 8 these CT scans? You said only recently. When did 9 you actually see them? 10 A. I saw the CTs yesterday, but I saw the reports 11 whenever I got the original records. 12 Q. So the first time you actually saw these CT scans 13 was yesterday? 14 A. Yes. 15 Q. Why is it that you for the first time saw these 16 scans yesterday when you did a written report on 17 December the 16th, 1999? 18 A. Well, my area of expertise is not radiology. I 19 have to go with the area of expertise of the 20 radiologist reading the films at the institution, 21 and all I can go by is what they say in their 22 report. Normally people don't forward all the 23 x-rays. They usually get the reports. And I 24 think we have to rely upon the radiologist's 25 impression. If they're mistaken, then that's not LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 27 1 my area of expertise. All I can go by is what 2 they are recording as their final impression and 3 evaluation of the CTs. 4 Q. Let me ask you this. Would you defer to the 5 radiologists relative to the interpretation of the 6 CT scans as to whether there was blood in the 7 chest on 2-6-98? 8 A. I think that that's their area of expertise. I 9 would say that their readings would be 10 appropriate, yes. 11 Q. So you would defer to their readings; correct? 12 A. As a final reading, yes. I'm not a radiologist. 13 Q. Now, in your written report on page -- let's see 14 here. Let me step back for a moment. I was 15 cross-examining a doctor by the name of Franklin 16 last week in Chicago, Illinois. Do you know 17 Dr. Franklin? 18 A. No. 19 Q. Have you had an opportunity to review the reports 20 of the other plaintiff's experts in this case? 21 A. No. 22 Q. Has Mr. Hirshman informed you as to what took 23 place at that deposition? 24 A. I haven't heard anything about the depositions of 25 the experts. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 28 1 Q. If I can make reference, if I may, to the clinical 2 course of this patient starting at about 6:30 on 3 2-6-98 when his INR values came down from a high 4 of about 44, do you recall that? 5 A. Yes. 6 Q. And I don't know if you have these values in front 7 of you, but Dr. Franklin looked at these values 8 from 2-6-98 at about 6:30 and took them through to 9 2-8-98 at about 4 p.m., and it was his opinion 10 that all of those values were in his opinion, 11 quote, moderately high. Now, having said that -- 12 A. Moderately high? 13 Q. Moderately high, right. 14 A. On 2-6 to my knowledge the PT was 76 and the INR 15 was 36, and then it came down a little bit but 16 still it was elevated. Moderately high, I would 17 say that an INR of 36 is not moderately high. 18 It's significantly high. 19 MR. HIRSHMAN: And I don't believe 20 Dr. Franklin, by the way, said anything to 21 the contrary, but -- 22 Q. Well, Dr. Franklin was kind enough to read through 23 starting at 2-6-98 at 6:30 value after value after 24 value, I think all of which were under 2. I don't 25 know if you've had an opportunity to review those. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 29 1 MR. HIRSHMAN: You're talking about the 2 ones that were -- okay. Let's identify which 3 ones you're talking about. 4 Q. Sure. Doctor, why don't you do this. If you have 5 the records in front of you, read the values 6 starting at 2-6-98 at 06:30, and I'd like you to 7 take those all the way through to 04:00 on 2-8-98. 8 MR. HIRSHMAN: Here are the actual labs. 9 A. Starting on 2-6? 10 Q. Yes, sir. 11 A. And what time frame? 12 Q. 06:30 on 2-6-98. I think the previous one was 44, 13 and then it dropped down considerably. 14 A. All right. I've got 2-6-98, 6:30, I've got a pro 15 time of 17.8 and an INR of 2. Then at 12:00, 19.8 16 and 2.6. On 2-6, 17:44 hours, I've got a PT of 17 22, INR of 3. Then on 2-6, 19:12, 16.7, 1.9. And 18 then basically it stays in the 16 to 15 range 19 until you get up to 2-7, and there it's 1.69 INR, 20 and then by 2-8 it's 14.4 and 1.43. 21 Q. Would you be so kind, Doctor, as to read the 22 hospital records wherein the records reflect what 23 is a therapeutic level of INR? What is the 24 hospital's own standard, if you will? 25 A. The standard is 2 to 3, I guess this is LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 30 1 therapeutic, and high dose is 2.5 to 3.5. 2 Q. Now, let's get back to your report. On the last 3 page of your report it says -- well, let me read 4 it starting at the beginning on the second page. 5 It says, "Dr. Marquart's approach to the 6 management of this patient is very distressing." 7 A. I'm sorry. I'll have to find that. 8 Q. I'm sorry. I'm on the second page at the bottom. 9 I apologize. 10 MR. HIRSHMAN: The second to last page 11 or the second page? 12 A. Under opinion? 13 Q. Second to last page under opinion. 14 A. Okay. 15 Q. It says, "Dr. Marquart's approach to the 16 management of this patient is very distressing. 17 His flagrant refusal to draw an INR when requested 18 by the pharmacy and the admitting nurse causes one 19 to question his clinical acumen. If he had 20 communicated with Dr. Litman or simply drawn a 21 routine monitoring PT and INR, Mr. McGarvey would 22 not have had the spontaneous bleed that eventually 23 led to his demise." Do you see that? 24 A. Yes. 25 Q. My first question is are you critical of LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 31 1 Dr. Litman? 2 A. Am I critical of Dr. Litman? 3 MR. BEST: Well, I object. There's 4 been testimony that there's new information 5 here that's come to this doctor's attention 6 when he listed what he read, for example, my 7 nine experts. So I guess I'd like you to 8 inquire, if you're going to ask him opinions, 9 regarding what information he's relying upon 10 to formulate his opinions as to Dr. Litman. 11 MR. LYON: Excellent. I agree with you 12 totally. 13 Q. Doctor, let me preface this by asking this first. 14 In your report of December 16, 1999, did you 15 render an opinion criticizing Dr. Litman? 16 A. In that report I questioned whether or not it was 17 appropriate not to call Dr. Marquart or to follow 18 the patient on an outpatient basis with follow-up 19 labs, yes. 20 Q. In that report it says, "In my opinion, 21 Dr. Litman's failure to write the orders or 22 communicate with Dr. Marquart is inexcusable and 23 clearly below the standard of care." Do you 24 remember writing that? 25 A. Yes. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 32 1 Q. Now, Mr. Best's question is appropriate. Have you 2 received additional information relative to 3 Dr. Litman's care and treatment which now allows 4 you to render further criticisms of Dr. Litman? 5 A. I have received -- yesterday I saw a stipulation 6 from the hospital, which indicates that it was 7 Dr. Hensel's responsibility to write these orders. 8 We know that Dr. Litman had written daily PTs. He 9 had also suggested follow-up. It depends upon the 10 standard of care in the area. Dr. Guyton, I 11 saw -- as I said earlier, I saw expert witness 12 reports just recently in reference to Dr. Litman. 13 I was not aware of the standard of care in that 14 area of the country. I trained or worked at a 15 teaching hospital and I work in a private hospital 16 now. 17 If indeed it was a responsibility of 18 Dr. Hensel, and Dr. Litman did write those orders, 19 and in the stipulation what they're saying and 20 also what Dr. Guyton has said, then I can't find 21 significant fault with Dr. Litman, because he did 22 everything he could, he wrote the orders, and it 23 is the standard of care in that community for the 24 resident to write the orders, not Dr. Litman. So 25 whether or not that was followed, I think that LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 33 1 falls into the hands of Dr. Hensel and not 2 Dr. Litman based upon recent information. 3 MR. LYON: Toby, as an aside here, I 4 want to ask you something, because these 5 rules are somewhat foreign to me. Can I 6 assume that the experts are allowed to add 7 opinions as they go along with additional 8 information or are they required to render 9 those opinions in these written reports? 10 MR. HIRSHMAN: They are required to -- 11 you know, I'm not the judge here and I 12 didn't write the local rules either. All I 13 can tell you -- 14 MR. LYON: Well, for the record though, 15 I'm going to move to strike any opinions 16 that this physician has based on information 17 that he has received after the 16th day of 18 December, 1999, as they relate to any of the 19 physicians and any of the defendants. We'll 20 take that up at a later time. 21 MR. HIRSHMAN: Why are you taking his 22 deposition? 23 MR. LYON: Pardon? 24 MR. HIRSHMAN: Why are you taking his 25 deposition then? LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 34 1 MR. LYON: Well, because I want to 2 clarify his opinions as presumably 3 articulated in his report of December 16, 4 1999. 5 MR. HIRSHMAN: I'm not here to argue 6 with you. Just go ahead and -- 7 MR. BEST: Let me put something on the 8 record, so it's clear. I've been trying 9 cases in Summit County for a long time, and 10 I think it's very clear in our discovery 11 that doctors are entitled to consider all 12 the information that they have. And in 13 this case obviously Dr. Hickey has more 14 information now than he did when he wrote 15 his report. It would be not only unusual, 16 it would be foolish to suggest that he 17 should ignore the reality of a situation. 18 So he's modified his opinion based upon the 19 complete set of facts, and I'm not aware of 20 any judge in Summit County that would prevent 21 that. So I think that's a reasonable thing 22 to do, and it would be foolish and 23 unreasonable to ignore reality and create a 24 false basis for his testimony. So I think 25 his testimony is appropriate. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 35 1 MR. LYON: And I totally agree with 2 Mr. Best. I'm simply pointing this out 3 because at some point very soon we'll be 4 filing a motion asking the court to 5 reconsider their ruling on my expert by 6 virtue of the very philosophy that Mr. Best 7 has pointed out. But be that as it may -- 8 MR. HIRSHMAN: Hold on. Before you 9 proceed, I have some sort of a message 10 that's coming over the screen. Do you have 11 that as well? 12 MR. LYON: No, sir. 13 MR. BEST: No. 14 MR. HIRSHMAN: Can everybody hear us? 15 MR. LYON: Yes, I can. 16 MR. BEST: Yes. 17 MR. HIRSHMAN: Okay. Then we'll 18 proceed. I had some sort of a message on 19 the screen, which made me wonder whether 20 everybody was tuned in still. 21 MR. LYON: Thank you, Toby. 22 MR. BEST: We're good in Cleveland, 23 Toby. 24 BY MR. LYON: 25 Q. Doctor, let me ask you this. It says in your LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 36 1 report, "If he," and they're talking about 2 Dr. Marquart. "If he had communicated with 3 Dr. Litman or simply drawn a routine monitoring PT 4 and INR, Mr. McGarvey would not have had the 5 spontaneous bleed that eventually led to his 6 demise." 7 What do you mean by "if he had 8 communicated with Dr. Litman"? 9 A. As I recall, this patient was treated by 10 Dr. Marquart, and he did a physical exam on him 11 during his hospitalization from 12-17 through 19. 12 At the time the patient was receiving 1 milligram 13 of Coumadin a day and had therapeutic INR and PTs. 14 The patient then comes back after starting on 15 Coumadin at 5 milligrams, which is basically five 16 times the dose that he was on previously. He was 17 notified I think on the 20th by a pharmacist who 18 suggested that they get an INR because it is known 19 that IV cephalosporins, i.e., Ancef, can 20 potentiate the effect of Coumadin. At that point 21 he decided not to do an INR, and then I think the 22 nurse brought the situation up again to him. 23 If he was managing the patient and two 24 people had brought this up and with prior 25 knowledge, I think a phone call to Dr. Hensel to LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 37 1 ask is this his maintenance dosage, or had he 2 called Dr. Litman and said, you know, is this 3 patient supposed to be maintained on 5 milligrams 4 a day, when we know from his past history 5 specifically he was at 1 milligram a day when he 6 was at the hospital last time -- that's a much 7 higher dose and he's had all these -- I just think 8 that had he asked the referring physician what 9 were your plans, then this failure to transmit the 10 need for daily PTs which Dr. Litman had requested 11 by the resident would not have fallen through the 12 cracks, and just some communication would have 13 probably prevented this and they could have 14 addressed the INR issue and the 15 overcoumadinization. But that didn't occur. 16 Q. You go on to say, "Mr. McGarvey would not have had 17 the spontaneous bleed that eventually led to his 18 demise." Now, let me ask you this. When in your 19 opinion did he have this spontaneous bleed? Do 20 you say it was February the 5th? 21 A. I think that's when they did the chest CT and they 22 see blood in the chest and the air bronchograms. 23 He may have started bleeding before that, because 24 on the 5th he starts complaining of left shoulder 25 pain and left chest wall pain. Now, that's a new LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 38 1 symptom. 2 MR. HIRSHMAN: That's the 4th, Doctor, 3 I believe. 4 A. He starts on the 4th, the 5th, and the 6th. I 5 can't tell you exactly in what time frame that 6 bled, but we know that the INRs are grossly above 7 therapeutic levels, and we do know on a chest CT 8 on 2-6. So it happened somewhere either on the 9 4th, 5th or 6th. Maybe it started as a slow bleed 10 and got bigger, I don't know, but I know that he 11 started presenting with symptoms on 2-4, 2-5, and 12 2-6. 13 Q. And what we do know is that on February the 8th, 14 1998, he had an exploratory laparotomy with 15 splenectomy and packing in splenic bed and liver; 16 true? 17 A. Yes. 18 Q. And it's my understanding that in your opinion 19 that procedure was performed in accordance with 20 the surgical standard of care. Correct? Is that 21 your opinion? 22 A. Yes. 23 Q. And then on the 10th day of February, 1998, he 24 returned to the operative suite apparently with an 25 exploratory laparotomy with removal of packing, LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 39 1 etc., etc. You've had a chance to look at that 2 operative report, have you not? 3 A. I saw the operative report. It's a very standard 4 approach when you have a patient who is massively 5 bleeding and is bleeding and you have not been 6 able to significantly correct their coagulopathy. 7 I probably do that once or twice every few months 8 on trauma patients. We get the same situation 9 where they've had a massive bleed. Six liters of 10 blood in the abdomen is a massive bleed. All you 11 can do is pack them and hope that with continuing 12 to give them blood components and fresh frozen 13 vitamin K, you can correct that. I think what 14 they did was excellent. I have no complaints or 15 criticisms of that. 16 Q. As a matter of fact, it says on the second page, 17 "The patient tolerated the procedure well and was 18 stable, back to the intensive care unit"; correct? 19 A. I'm sorry. Where are you reading that? 20 Q. On the second page of the operative report of 21 2-10-98. 22 MR. HIRSHMAN: He doesn't have that in 23 front of him, so he's going to have to take 24 your -- 25 Q. I'm sorry. It says, "The patient tolerated the LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 40 1 procedure well and was stable, back to the 2 intensive care unit." 3 A. This is dated 2-10, sir? 4 Q. Yes, sir. 5 A. The surgical terminology means that he didn't drop 6 his pressure dramatically during the operative 7 case, but he still had lungs that were 8 significantly compromised as a result of the 9 massive transfusions, the need for Levophed, 10 vasopressor, blood components, etc., in the time 11 preceding that. What the surgeon is saying is 12 that the patient got through the operative 13 procedure without any major problems and they were 14 able to get the packing out. 15 Q. Well, when he left the operative suite on 2-10-98, 16 he was breathing on his own, was he not? 17 A. He was not extubated until 2-16. Breathing on 18 your own and being extubated are two different 19 categories. A lot of patients can breathe on 20 their own, but if you don't know their parameters 21 as far as vital capacity and tidal volume -- 22 This patient was not extubated to my knowledge 23 until the 16th. So yes, he was breathing on his 24 own, but they were unable to extubate him until 25 the 16th. Not being there, I can't tell you why LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 41 1 that occurred, but that means he was intubated for 2 almost thirteen days. 3 Q. If the treating physicians made the decision to 4 extubate him on the 16th of February, 1998, they 5 must have been satisfied that his respiratory 6 status was such that he could breathe without the 7 intervention of mechanical ventilation; is that 8 not true? 9 A. I don't think they extubated him on the 16th. I 10 thought they extubated him on the 19th. 11 Q. Well, whether it's the -- 12 MR. HIRSHMAN: It's the 19th. 13 Q. Let's say the 19th. They had to have been 14 satisfied that his respiratory status was such 15 that he was able to breathe not only on his own 16 but without the intervention of mechanical 17 ventilation; true? 18 A. Well, to extubate him would mean that he would 19 have to be taken off mechanical ventilation. But 20 the issue here is oftentimes patients are 21 extubated, they'll have good weaning parameters, 22 it looks like they'll fly on their own, and then 23 they have to be reintubated at a period of time 24 down the line. 25 When a patient has been intubated for a LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 42 1 long period of time, you don't know the status of 2 their vocal cords, have they gotten any ulcers or 3 scars, are they going to have problems not so much 4 with the ventilation, but when they try to 5 swallow, the protective mechanism of their vocal 6 cords may be compromised and so they may continue 7 to aspirate. If they aspirate, then that can lead 8 to pulmonary compromise. And we saw that with him 9 throughout the next several weeks. 10 Q. Well, sir, do you know what the appropriate 11 weaning parameters are to allow a clinician to 12 extubate an individual in this clinical context? 13 A. I don't know what the parameters are for the 14 hospital involved here, but we use a negative 15 inspiratory pressure greater than 20, we like to 16 see a good tidal volume up in the 400 or 500 17 range, we like to see good oxygen saturations 18 greater than 90 -- I'm sorry, O2 sat greater than 19 95 and a PO2 greater than 85, and then we look at 20 the patient clinically and see if they can be 21 extubated. 22 Apparently he looked like he could be 23 extubated. I think his respiratory problems that 24 went on later had to do with the vocal cords and 25 not being able to protect his airway, because it LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 43 1 says every time -- a couple times when he tried to 2 swallow water on March the 6th he continued to 3 aspirate, and they were concerned about that. The 4 only way I can explain that is that the long 5 intubation caused some problems with the vocal 6 cords and compromised his airway. 7 Q. In your professional opinion, based on your 8 knowledge of the weaning factors and the clinical 9 picture in this case, do you feel it was 10 contraindicated to extubate this patient on 11 2-19-98? 12 A. No, I don't think it was contraindicated. I think 13 the longer you leave a patient intubated -- it's a 14 double-edged sword. If you keep them intubated 15 longer, you'll have more cord problems, they may 16 develop a pneumonia, you can't suction the airways 17 and lungs efficiently. 18 I don't think it was contraindicated. I 19 think they were right on top of it. I think they 20 kept him in the MICU, if I'm not mistaken. I do 21 this quite frequently. You just watch them 22 closely, and if they get into problems, they have 23 to be reintubated or you consider a tracheostomy. 24 Q. Now, I heard you say that your review of the 25 records indicates to you that this patient was -- LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 44 1 I thought I heard you say aspirating all along. 2 A. No. 3 Q. Is that your testimony? 4 A. No, my testimony is that he was extubated on the 5 19th, and then there are entries in the progress 6 notes in the subsequent days following that when 7 he tried to take clear liquids, it seemed that he 8 was aspirating. And I think they asked -- it 9 sounds like an ENT doctor to take a look at his 10 cords. And they said edematous, small ulcer, but 11 the cords were functional. But I think as time 12 went on, he had more problems trying with the 13 liquids, and that's why he probably aspirated on 14 March the 6th because he had problems with his 15 vocal cords. 16 Q. I just want to understand your testimony. Is it 17 your opinion that this patient aspirated, your 18 understanding of that word in this clinical 19 context -- you're going to testify under oath that 20 this patient aspirated before April 5th, 1998? 21 A. Before April 5th? Yes. 22 Q. I'm sorry, April 6th. 23 A. I see entries on March 6th where there were 24 comments about aspiration. Not being there, I can 25 not say, but it sounds like he had his first LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 45 1 episode of concern regarding aspiration about 2 March the 6th to my knowledge. I know that he was 3 reintubated on the 7th of April through the 11th, 4 and then he went two days without being intubated 5 and apparently was having problems with his 6 liquids and aspirating, and finally was trached on 7 April the 16th to my knowledge. 8 Q. Are you comfortable with the -- 9 MR. HIRSHMAN: I'm looking right here 10 at my notes. There's an aspiration that's 11 clearly delineated in the records on March, 12 not April, but on March 6th. 13 A. 3-6. 14 Q. Are you critical, Doctor, of any of the medical 15 care providers or the physicians in March and 16 April of 1998 relative to the management of this 17 gentleman's airway? 18 A. No, I am not. I think they had a challenging 19 problem. They had a man who went through a 20 tremendous problem from about 2-6 to 2-10, 2-11, 21 and he had recurrent problems with 22 intra-abdominal -- I think there were pancreatic 23 abscesses, there were some fluid collections. And 24 I think they did a very good job treating this 25 patient. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 46 1 There comes a point when a person has cord 2 injury or respiratory problems and becomes what we 3 call a chronic ventilatory-dependent type patient. 4 Sometimes you just can't turn that around. And I 5 think from my review, the monitoring, they fed him 6 appropriately, he maintained his weight. If you 7 look, his weight stayed at 255 throughout his stay 8 at the one facility. I think they addressed all 9 the issues. His albumin was a little low at the 10 time of his admission with a major bleed at 2-6. 11 But I can't criticize any care given to him after 12 the major incident. 13 Q. On the last page of your written report in the 14 last paragraph you say, "If the physicians 15 involved had simply spoken to each other." What 16 physicians are you talking about? 17 A. At this point I'm talking about Dr. Marquart and 18 Dr. Hensel, since Dr. Hensel was responsible for 19 writing the orders. I also think that had 20 Dr. Marquart just made a phone call to either 21 Hensel or even Litman and said, "Gee, what's going 22 on here? Do we need to manage this patient? Do 23 we need to do some INRs?", I'm sure -- After 24 looking at Dr. Litman's notes, etc., he had 25 ordered PTs on a daily basis. And you can see LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 47 1 from January 16th to January 20th that the PT went 2 from 16 to 20 and the INR went from 1.7 to about 3 3. So it was on the upward swing. 4 So I think just a simple phone call -- and 5 this is a problem in surgery, communication. I 6 don't know why Dr. Hensel didn't write the orders. 7 Dr. Litman did what he could, putting this is what 8 I need to do, but I know the standard of care 9 there is for the residents to write the orders, 10 not the attendings. 11 Q. Now, would you explain to me -- in this next line 12 you say, "If the physicians involved had simply 13 spoken to each other, Mr. McGarvey would not have 14 experienced an untimely death." What do you mean 15 by that, untimely death? 16 A. Well, if you look back at the records, he was 17 doing fairly well after his cardiac cath and even 18 after his cardiac operation. He got a sternal 19 infection, but a lot of people get sternal 20 infections and they survive those. 21 The insult that really turned the tide for 22 this gentleman was the massive need for blood 23 transfusion, blood products, which put him into a 24 very dangerous vortex and spiraling downward. I 25 think had that been excluded, he probably could LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 48 1 have lived -- my estimate is ten to fifteen years, 2 I'd say about ten years, because he had survived 3 his other medical problems for quite a while 4 without complication. So I can't find any other 5 insulting reason other than this 6 overcoumadinization that caused this cascade of 7 events. 8 Q. My understanding was, sir, that this gentleman was 9 69 years of age or approximately 69 years of age 10 when he died. Is that your understanding? 11 A. I know he died 12-16-98. I think that would make 12 him -- I don't know the exact age. If he was 69 13 when the events started, perhaps he was 70 or -- 14 68, 69, I don't know, but it's right in that time 15 frame. 16 Q. I'd like you to assume if this gentleman had had 17 no underlying pathology, no cardiac problems, no 18 osteomyelitis, no atrial fibrillation, no 19 pneumonia, no hypertension, no congestive heart 20 failure, no ruptured spleen, no sepsis, no 21 respiratory failure, if he had none of those 22 problems at age 69, in other words, he was 23 essentially normal and healthy, what would have 24 been his life expectancy in your opinion? 25 A. Well, the last four diagnoses that you mentioned LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 49 1 were all caused by what we've already talked 2 about. I would say at least five to ten years. I 3 think he could have easily made it another ten 4 years. I don't know. I haven't seen the man. I 5 didn't know the man. I've just read his records. 6 And most of the time when you have bypass surgery, 7 they say it will give you another five to eight 8 years. I've had several people who have had 9 medical illnesses and undergo bypass surgery. 10 It's not uncommon to see a patient undergoing 11 bypass surgery now at the age of 72. I think that 12 you have to realize at 72, people are living 13 longer today. 14 Q. You may have misunderstood my question. Are you 15 saying that his life expectancy at 69 was the same 16 if he had no problems whatsoever as it was with 17 all the problems he did have? 18 A. No. He's had osteoarthritis his entire life and 19 bilateral fused hips. He's not a diabetic. He's 20 had hypertension, he's had cardiac problems, and 21 he had surgery and he had a right carotid to deal 22 with that. My point is that the other diagnoses 23 that he had were subsequent to the Coumadin 24 therapy. If we exclude those, then I would say he 25 could have probably lived another five to ten LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 50 1 years. 2 Q. Well, maybe I don't understand it. On what do you 3 base -- Do you have any literature to support 4 your opinion as to how long this gentleman would 5 live? 6 A. No, I don't have literature to support that. 7 Q. Let me ask you this. If Dr. Marquart had called 8 Dr. Litman, what do you think Dr. Litman would 9 have told him to do? 10 MR. HIRSHMAN: If you know, Doctor. 11 A. I don't know what Dr. Litman would have told him, 12 but it sounds like Dr. Litman was fairly involved 13 with the care of this patient. He had taken care 14 of him at least three times in the past. And he 15 was under the assumption, according to the 16 records, that this was being taken care of. 17 I don't know what Dr. Litman would have 18 said, but I'm sure that -- all I can tell you is 19 what I would have said, had I been this involved. 20 I'd say, "Why isn't he getting the PTs that I 21 ordered? Why haven't you drawn them?" This would 22 be the response that I would make. Now, what 23 Dr. Litman would say, I'm not in his shoes, but it 24 sounds like this man was -- Dr. Litman was pretty 25 involved with his family. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 51 1 Q. After the 10th day of February, 1998, do you see 2 evidence of bleeding in this patient? 3 A. I don't see active evidence. What we do see is 4 evidence of pancreatic collections and then fluid 5 collections. I think after they took the packing 6 out, there was probably still some ooze from the 7 raw surface areas. When that blood starts to 8 lyse, it forms a fluid, and it's not uncommon to 9 see fluid collections after a massive bleed. 10 Active bleeding? I see that his hemoglobin and 11 hematocrit hover in the -- hemoglobin is in the 8 12 to 9.5 to 9.9 range. I don't think he's actively 13 bleeding at this point. I think they've 14 stabilized him with all the blood components, etc. 15 Q. His hematocrit and hemoglobin from approximately 16 the 10th day of February, 1998, up to his death 17 were essentially normal, were they not? 18 A. I don't recall the exact numbers. Are they here? 19 MR. HIRSHMAN: I can give you the 20 numbers from the hospital, if they're here, 21 which would be through April 30th. 22 A. I've got hematocrits starting on 3-9. Do you want 23 to go back to 2-10? 2-10, I've got a 24 hematocrit -- I'm going to give you hemoglobin 25 and hematocrit first. 2-10, it was 10 and 31. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 52 1 2-19, it was 10 and 33. 3-6, 10 and 32. So his 2 hemoglobin and hematocrit remained fairly stable 3 after the 10th, yes. 4 Q. Do you see evidence, clinical or laboratory 5 evidence of disseminated intravascular coagulation 6 after 2-10-98? 7 A. I don't have any of those records, so I can't 8 respond to that. I know that his coagulation 9 parameters stayed the same. Whether or not his 10 dimers and fibrinogen levels went up or down, 11 again, I don't have that information. 12 Q. In light of the fact that his hematocrit and 13 hemoglobin were relatively normal from 2-10-98 on, 14 and there's no evidence at least in the records 15 that you have of disseminated intravascular 16 coagulation from that point on, do you have an 17 opinion as to whether he had any life-threatening 18 bleeding complications from February 10, 1998, on? 19 A. According to his hemoglobin and hematocrits, it 20 doesn't look like he's had a significant dip in 21 his blood count. 22 Q. I want to make sure I understand what medical 23 records you actually have. You're constantly 24 making reference to the fact that you have some 25 but you don't have others. LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 53 1 MR. HIRSHMAN: That's not exactly 2 correct. 3 MR. LYON: Toby, maybe you can help 4 here. 5 MR. HIRSHMAN: I'll be glad to help 6 you. What he's saying is that he doesn't 7 have them here at the deposition. He has 8 all those records. 9 Q. In other words, Doctor, you have reviewed all the 10 medical records -- and when I say all, I mean lab 11 reports, nurse's notes, operative reports, 12 radiology reports, etc. You have reviewed the 13 complete medical records of this gentleman from 14 January 1, 1998, until his death; is that true? 15 A. I have looked at all the records, like sixteen 16 binders, yes. Whether I can quote every value in 17 there, I can not without looking at the binders. 18 MR. LYON: I understand. I have no 19 further questions. Thank you, Doctor. 20 MR. VERGON: I have no questions. 21 - - - - - - - 22 CROSS-EXAMINATION 23 BY MR. FRANEY: 24 Q. Doctor, I'm Marty Franey. I was introduced to you 25 earlier. I represent Akron General Medical Center LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 54 1 in this lawsuit. 2 Just a couple of questions, Doctor. What 3 percentage of your practice is devoted to Coumadin 4 management of patients? 5 A. I can't give you an exact percentage. I would say 6 maybe I've had three patients in the last year, 7 and I probably treat a hundred patients a month. 8 So a percentage, three to four percent maybe. 9 Q. What percentage of your -- 10 A. Excuse me. When I was an associate professor at 11 the University of California San Francisco, we did 12 more Coumadin therapy, but we also worked with a 13 Coumadin clinic which we had, where we would start 14 our patients on Coumadin, then make sure they were 15 followed in the Coumadin clinic with serial 16 hematocrits and INRs. 17 Q. Just so that I'm clear then, are you saying that 18 three to four percent of your patients you would 19 be involved in the management of the Coumadin? 20 A. The initial management. Coumadin therapy in my 21 opinion is very challenging and it's a difficult 22 type of therapy, and my hat is off to the 23 cardiologists and the medical folks who manage 24 this. 25 Coumadin I try to stay away from as much as LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 55 1 possible, because it is a difficult thing to 2 manage and it requires very close monitoring. 3 Even when I have a patient that's stable, I will 4 probably get an INR and a PT on them at least 5 every couple weeks, but usually maybe once a week 6 in the first several months of management. 7 It's an age-old problem in the area of 8 surgery and in medicine and cardiology. Coumadin 9 therapy, you have to be very cautious with it. I 10 mean it's not a nuance that this problem came up. 11 This is a well-documented problem, and when you 12 see a patient on Coumadin, you have to manage them 13 closely. 14 What I normally will do -- in fact, with 15 the last patient I had, which was a gentleman who 16 had a ruptured diaphragm and threw a pulmonary 17 embolus, I started him on Coumadin therapy in the 18 hospital, I monitored him, and then when I got 19 ready to send him to his internist, not only did I 20 send a certified letter saying that you will 21 follow this, but I also called him and said will 22 you call me the results, and if I don't have the 23 results, then I'll assume that you haven't done 24 the Coumadin. And then I communicated with them 25 on a weekly basis until I felt confident that they LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 56 1 were managing him. 2 These patients can slip through the cracks 3 very easily. And unless you have your antenna up, 4 something can happen. This is not the first time 5 that this has happened. 6 Q. What percentage of your practice is involved in 7 nursing home care? 8 A. Well, I do trauma surgery. A lot of our patients 9 after resuscitation, due to HMOs, etc., are moved 10 out of the acute care facility into either rehab 11 facilities, which I would consider similar or 12 almost similar to a nursing home, or to a nursing 13 home environment. 14 The way it's managed is that all the 15 orders -- And I'm in private practice. I'm not 16 in an academic environment anymore. I write the 17 orders or I will write a specific order, follow 18 all current hospital orders and transfer. Then we 19 have a specific person who takes those orders and 20 sends the patient out to the nursing home. And 21 then that patient, if able to be mobilized, is 22 brought back to my clinic within a week or two 23 weeks, depending upon the injury. I don't deal 24 with nursing homes specifically, I don't know the 25 standards at nursing homes, and I'm not going to LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 57 1 try to enter into that, because I don't know. I 2 just send patients there and then I see them back 3 in my office. 4 Q. So I take it from your answer that you do not 5 practice in the nursing home setting; you practice 6 strictly in the surgical setting? 7 A. We are a trauma service that practices at a 8 hospital, Harris Methodist, Fort Worth. We take 9 care of all the trauma in the Fort Worth area. We 10 do some elective surgery. But I don't go to 11 nursing homes. I don't manage patients at nursing 12 homes. 13 Q. And what I hear you saying is that when you 14 transfer the patient to the nursing home, it then 15 becomes the responsibility of the physician at the 16 nursing home or the primary responsibility of the 17 physician at the nursing home to manage the 18 patient. 19 A. We send the orders over, and yes, most of the time 20 the primary care physician -- They're assigned a 21 physician before they go, and then they have the 22 orders that go with them. That physician knows if 23 there are any issues, they can call us or contact 24 us and we'll deal with it, or if he has a problem 25 with the patient, he calls us and sends them back LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 58 1 to us. 2 Q. But when they're at the nursing home, the 3 patient's primary caregiver is the physician at 4 the nursing home; correct? 5 A. Yes, sir. 6 MR. FRANEY: Thank you. 7 MR. BEST: I have no questions. 8 MR. HIRSHMAN: Fred, any questions? 9 MR. VERGON: No, no questions. 10 - - - - - - - 11 (The deposition was concluded at 11:15 a.m.) 12 - - - - - - - 13 14 15 16 17 18 19 20 21 22 23 24 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 59 1 S I G N A T U R E 2 3 I, MICHAEL S. HICKEY, M.D., do hereby certify that 4 I have read my deposition taken on March 27, 2000, in 5 the case of Theresa F. McGarvey, et al., versus Laurel 6 Lake Nursing Home, et al., consisting of sixty pages, 7 and that said deposition is a true and correct 8 transcription of my testimony. 9 10 ________________________________ Michael S. Hickey, M.D. 11 12 Dated this ______ day of ________________, 20____. 13 14 15 Sworn to and subscribed before me this ______ 16 day of ______________, 20____. 17 18 ________________________________ 19 Notary Public 20 My commission expires _______________________. 21 22 - - - - - - - 23 24 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418 60 1 C E R T I F I C A T E 2 STATE OF OHIO, ) ) SS: 3 SUMMIT COUNTY. ) 4 I, Linda McAnallen, a Stenographic Reporter and 5 Notary Public in and for the State of Ohio, duly 6 commissioned and qualified, do hereby certify that the 7 within-named Witness, MICHAEL S. HICKEY, M.D., was 8 first duly sworn to testify the truth, the whole truth 9 and nothing but the truth in the cause aforesaid; that 10 the testimony so given by him was by me reduced to 11 Stenotype; and that the foregoing is a true and correct 12 transcription of the testimony so given by him as 13 aforesaid. 14 I certify that this deposition was taken at 15 the time and place in the foregoing caption specified. 16 I further certify that I am not a relative, 17 counsel or attorney of either party nor otherwise 18 interested in the event of this action. 19 IN WITNESS WHEREOF, I have hereunto set my hand 20 and affixed my seal of office at Cuyahoga Falls, Ohio, 21 this 13th day of April, 2000. 22 23 ___________________________________ Linda McAnallen, Notary Public 24 My commission expires July 24, 2000. 25 LINDA McANALLEN COURT REPORTING SERVICES (330) 928-1418