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 EVELYN JAMES, RN, CNP
14                WEDNESDAY, MAY 28, 2008
15                       - - - - -
16        Deposition of EVELYN JAMES, RN, CNP, a
17   Witness 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 10:00 o'clock a.m. on the
25   day 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         1660 West Second Street
 8         Suite 660
 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                     - - - - -
 2              (Thereupon, JAMES Deposition
 3               Exhibits 1 and 2 were was marked for
 4               purposes of identification.)
 5                    - - - - -
 6         EVELYN JAMES, RN, CNP, a witness herein,
 7   called for examination, as provided by the Ohio
 8   Rules of Civil Procedure, being by me first duly
 9   sworn, as hereinafter certified, was deposed and
10   said as follows:
11         EXAMINATION OF EVELYN JAMES, RN, CNP
12   BY MR. MISHKIND:
13         Q.    Would you please state your name for
14   the record.
15         A.    My name is Evelyn C. James.
16         Q.    May I call you Evelyn?
17         A.    Yes, you may.
18         Q.    Evelyn, my name is Howard Mishkind.
19         A.    Okay, Mr. Mishkind.
20         Q.    Nice to meet you.
21         A.    Thank you.
22         Q.    We were introduced before the
23   deposition.  I represent the family in this
24   lawsuit that has been filed concerning care that
25   was received by Lillian at Kaiser.  I'm going to
0004
 1   ask you a series of questions.  I will attempt
 2   to make my questions as clear as possible;
 3   however, if you don't hear my question or don't
 4   understand my question, tell me, Howard, I don't
 5   understand it or I didn't hear your question,
 6   could you please restate it.
 7         A.    Okay.
 8         Q.    I understand that you have a little
 9   bit of a hearing issue so I will do everything
10   within my power to make sure that my questions
11   are sufficiently audible so that you hear it.
12   But if my voice fades off at any time, tell me
13   that you lost part of the question and I will be
14   happy to restate it or I'll have Vivian read it
15   back.  Fair?
16         A.    Fine.
17         Q.    What I'm going to do is ask you some
18   questions about yourself and then talk about
19   your employment, your current employment, if
20   any, and your employment back at Kaiser and then
21   your involvement with regard to Lillian Dailey,
22   okay?
23         A.    Yes.
24         Q.    First, have you ever had your
25   deposition taken before?
0005
 1         A.    No.
 2         Q.    A deposition is essentially a
 3   question and answer period.  It's an opportunity
 4   for me to meet you and to find out your
 5   knowledge and any facts that may be relevant to
 6   this lawsuit.
 7               When you answer my question, make
 8   sure that you answer it verbally rather than
 9   nodding your head, because Vivian is
10   concentrating on her typewriter over there, so
11   if you are nodding your head or if you use some
12   type of a slang answer, she won't be able to get
13   it.
14         A.    Okay.
15         Q.    So I will remind you if you do fall
16   into the trap of nodding your head, to answer
17   verbally.
18         A.    Okay.
19         Q.    Also, wait until I'm done with my
20   question so that you don't start answering
21   before I'm done.  Cross talk in terms of answers
22   and questions is bad in a deposition, because
23   you may give me an answer to something that
24   really wasn't my question.  Okay?
25         A.    I understand.
0006
 1         Q.    I will also wait until you are done
 2   answering questions.  And if you feel you need
 3   to explain an answer, and a yes or no in your
 4   mind isn't sufficient, you may go ahead and give
 5   me an explanation more than a yes or no.
 6         A.    Okay.
 7         Q.    First, tell me where you live, your
 8   residence currently.
 9         A.    You want the house address also?
10         Q.    Please.
11         A.    4477 Brooks Road.  That's Cleveland,
12   44105.
13         Q.    How many years young are you?
14         A.    I'm 62 years old.
15         Q.    And your marital status?
16         A.    I'm married.
17         Q.    Does your husband work outside of
18   the home?
19         A.    My husband is retired, a Cleveland
20   policeman.
21         Q.    How many years was he a Cleveland
22   police officer?
23         A.    Twenty-five and a half.
24         Q.    From information that I have
25   received from others, it's my understanding that
0007
 1   you are also retired; is that correct?
 2         A.    Yes.
 3         Q.    When did you retire?
 4         A.    December 29th of 2007.
 5         Q.    Prior to December 29th, 2007, where
 6   were you employed?
 7         A.    At Kaiser.
 8         Q.    Were you working full time at Kaiser
 9   up until the time you retired?
10         A.    Yes, I was.
11         Q.    Full time is how many hours a week?
12         A.    Forty.
13         Q.    How long had you been employed at
14   Kaiser?
15         A.    Let me see.  Since '83.  So I have
16   been there 24 years.
17         Q.    So your last employment or your last
18   position that you held was as a nurse
19   practitioner?
20         A.    As a nurse practitioner.  Before
21   that I just worked as an RN.
22         Q.    Twenty-four years in total?
23         A.    Uh-huh.
24         Q.    That's a yes?
25         A.    I'm sorry, yes.  Twenty-four years
0008
 1   total at Kaiser, yes.
 2         Q.    Before Kaiser, did you work?
 3         A.    I worked for Kaiser.  I left for a
 4   couple years to care for my father who was dying
 5   and to have my last son and then I returned to
 6   Kaiser.
 7         Q.    When did you first start working at
 8   Kaiser?
 9         A.    1972.
10         Q.    You took a leave of absence in what
11   year?
12         A.    Actually I resigned.  I was in a
13   position where I couldn't just leave, ask for a
14   leave of absence.  I was working as an LPN and I
15   left to care for my father.  I left in '76, I
16   believe or '77.  I left in '77 and cared for my
17   father and had my son and went back to school
18   and returned to Kaiser in '83 as a registered
19   nurse.
20         Q.    Where did you obtain your schooling
21   to become an LPN?
22         A.    Jane Adams School of Practical
23   Nursing, 1965.
24         Q.    Where did you receive your schooling
25   to become an RN?
0009
 1         A.    At Cuyahoga Community College.
 2         Q.    Do you have an associates degree or
 3   bachelor's?
 4         A.    I have an associates degree.
 5         Q.    Where did you obtain your schooling
 6   to become a nurse practitioner?
 7         A.    I went to Planned Parenthood in
 8   Minnesota.
 9         Q.    Tell me about that.  When did you
10   get the training to become a nurse practitioner?
11         A.    '91.
12         Q.    Up until 1991 you were working as an
13   RN?
14         A.    Yes, I was.
15         Q.    I'm going to ask you in a moment to
16   tell me about the specifics, but were your job
17   responsibilities as a nurse practitioner
18   different than your job responsibilities as an
19   RN?
20         A.    Yes.
21         Q.    Tell me about the training that you
22   went through at Planned Parenthood to become a
23   nurse practitioner.  How long was it and what
24   was required?
25         A.    It's a full year.  I had 16 weeks,
0010
 1   so it was four months that I was in St. Paul,
 2   Minnesota and returned and you have clinical
 3   training, experience, with a proctor in a GYN
 4   setting.
 5               My training involved taking care of
 6   well women, doing routine exams, physical exams,
 7   breast exams, pelvic exams, taking care of women
 8   with maybe minor vaginal discharges, things like
 9   that.  I would do what they call well woman
10   care.
11         Q.    Did you have to take an examination
12   to become --
13         A.    National certification, yes.
14         Q.    Let me caution you, you have a
15   tendency --
16         A.    I'm sorry.
17         Q.    You have a tendency --
18         A.    I did it again.
19         Q.    You have a significant tendency --
20   and I'm telling you this more for your benefit
21   than anybody else's and also not to drive Vivian
22   crazy.
23               THE WITNESS: I'm sorry, Vivian.
24         Q.    Avoid the temptation of starting to
25   talk before I'm done.
0011
 1         A.    Yes.
 2         Q.    When you were working as an RN, what
 3   department were you working in?
 4         A.    I worked in OB/GYN.
 5         Q.    Since 1965, if we go all the way
 6   back in time to Jane Adams where you got your
 7   schooling and became an LPN all the way up to
 8   the time that you retired in December of '07,
 9   did you work anywhere else other than at Kaiser?
10         A.    I worked at -- when I finished
11   school I worked at Veteran's Administration
12   Hospital.
13         Q.    When?
14         A.    1966.
15         Q.    Until?
16         A.    I was there a full year because then
17   I traveled with my husband.
18         Q.    You mentioned your husband was a
19   Cleveland police officer.  What type of travel
20   were you doing?
21         A.    He was in the military in 1966.
22         Q.    In 1967 then did you return to the
23   V.A. or did you go someplace else?
24         A.    I had my son in '67, my oldest son.
25   My husband was stationed in the military.  I
0012
 1   left and joined him in Alexandria, Virginia and
 2   then it was after my son -- I returned to
 3   Cleveland and then worked at V.A., so I was
 4   working at the V.A. in 1967.
 5               We returned to Cleveland -- because
 6   I left again and returned to Cleveland in 1969
 7   and stayed home to raise my children.  I went
 8   back to work in 1972 and started at Kaiser as an
 9   LPN in their emergency room.
10         Q.    From 1972 then up until the time
11   that you retired, did you work for anyone else
12   other than Kaiser?
13         A.    No.
14         Q.    During your entire employment -- I
15   know this covers a number of years -- but were
16   you ever disciplined for any breaches in nursing
17   standards, either as an LPN or an RN or as a
18   nurse practitioner?
19         A.    Never.
20         Q.    Have you ever been a party to a
21   lawsuit, either a plaintiff, filing a claim, or
22   a defendant, where someone has named you as a
23   party to a litigation?
24               MR. RIEMENSCHNEIDER:  Objection.  Go
25   ahead.
0013
 1         A.    No.
 2         Q.    Please, don't be offended by this
 3   question, but I take it that you have been never
 4   been convicted or pled guilty to a felony?
 5         A.    No, I haven't.
 6         Q.    What was the reason you retired in
 7   December of '07?
 8         A.    My husband is studying to be a
 9   deacon and it was a requirement when he started
10   the practice, the deacylate, that the wives also
11   attend classes.  It's a four year program and it
12   became very difficult attending classes with him
13   two days a week. I was working full time  and I
14   was tired and I decided to retire so that I
15   could be more supportive of him.
16         Q.    So there is no question that as of
17   December of '07, the decision to leave Kaiser
18   was your decision?
19         A.    It was my decision.
20         Q.    And it was a requirement to
21   participate with your husband in his new career?
22         A.    Yes.  And to spend time with my
23   grandchildren.
24         Q.    In order to practice as a nurse
25   practitioner, did you have to take a state or a
0014
 1   national license?
 2         A.    I took a national certification
 3   exam.
 4         Q.    Who is the certifying entity for --
 5         A.    It's called the National
 6   Certification Board.
 7         Q.    National Certification Board?
 8         A.    It's called National Certification
 9   Corporation.  It's NCC.
10         Q.    And is NCC the certification board
11   for nurse practitioners?
12         A.    For nurse practitioners.
13         Q.    Are you required to recertify from
14   time to time?
15         A.    Yes.
16         Q.    Do you have to take an exam to
17   recertify?
18         A.    No, you have to make sure you do
19   continuing educational courses.  You take
20   continuing ed.
21         Q.    My notes, sketchy as they are and as
22   difficult as it is for me to read my notes,
23   indicates that it was '91 that you went for the
24   one year program.  So I presume sometime in '92
25   you took the examination?
0015
 1         A.    Yes.  And I was working, yeah.  I
 2   started working as a nurse practitioner in '92.
 3         Q.    Did you maintain your certificate --
 4         A.    Yes, I'm sorry.
 5         Q.    Did you maintain your certification
 6   continuously from 1992 at the very least up to
 7   the time that you retired?
 8         A.    Yes, I did.
 9         Q.    The continuing education courses
10   that you have to take, what is the requirement
11   to keep your certification as a nurse
12   practitioner?
13         A.    You have to take at least 24 hours.
14         Q.    For what period of time?
15         A.    I renew every two years.  I'm trying
16   to think, because you have to maintain to keep
17   your registered nursing license and my national
18   certification, so it's 36 hours of continuing
19   education for my nurse practitioner and 24 hours
20   that you keep for your registered nursing.
21         Q.    Is there any overlap in the hours?
22   Do they transfer?
23         A.    I can transfer some of them from my
24   registered nursing license, yes.
25         Q.    Did you maintain your RN, your
0016
 1   registered nursing certificate, from the time
 2   that you were first licensed as a registered
 3   nurse up until the time that you retired?
 4         A.    Yes, I did.
 5         Q.    Were you ever subject to any
 6   disciplinary before any local or state boards,
 7   either in nursing or as a nurse practitioner?
 8               MR. RIEMENSCHNEIDER:  Objection.
 9         A.    Never.
10         Q.    You indicated to me a moment ago
11   that this is the first time that you have had a
12   deposition taken; true?
13         A.    Yes.
14         Q.    Have you ever testified in a
15   courtroom as a professional, either as an LPN,
16   an RN, or as a nurse practitioner?
17         A.    No.
18         Q.    And I'm going to take a giant leap
19   of faith and say that I assume that you have
20   never testified in a courtroom as a witness in
21   any capacity?
22         A.    No.
23         Q.    My statement is accurate?
24         A.    Yes.
25         Q.    Okay.  Thank you.
0017
 1               Briefly, if you would, tell me what
 2   you could do as a nurse practitioner that you
 3   were not permitted to do as an RN.
 4         A.    As a nurse practitioner, I was able
 5   to do the physical exams.
 6         Q.    Anything else?
 7         A.    My assessment skills were greater
 8   than they had to be as just an RN.  I can order
 9   labs and I can also prescribe.
10         Q.    Prescribe medication?
11         A.    Medications.
12         Q.    Anything else?
13         A.    No, that's all.
14         Q.    You said your assessment skills had
15   to be greater than an RN?
16         A.    Yes.
17         Q.    In terms of the assessment skills,
18   were you required as a nurse practitioner to
19   arrive at diagnoses?
20         A.    I can assess and have a conclusion
21   as a nurse practitioner as to what a diagnosis
22   would be, but in nurse speak, you are doing
23   assessing and it is not called diagnosing.
24         Q.    Where would your assessing skills in
25   terms of arriving at nursing diagnoses be
0018
 1   greater -- strike that.
 2               As an RN, could you arrive at a
 3   diagnosis?
 4         A.    As an RN?
 5         Q.    Yes.
 6         A.    No, you are not to diagnose
 7   problems.
 8         Q.    As a nurse practitioner, the term
 9   assessment would be, correct me if I am wrong,
10   synonymous with arriving at a diagnosis?
11               MR. RIEMENSCHNEIDER:  Objection.  Go
12   ahead.
13         A.    It would be a nursing assessment
14   diagnosis, if you are going to say arriving at a
15   diagnosis.
16         Q.    If you arrived at a nursing
17   diagnosis, you then were permitted, based upon
18   your licensure, to prescribe medication for that
19   nursing diagnosis?
20         A.    Yes.
21         Q.    And order tests for that nursing
22   diagnosis?
23         A.    I would order the tests to help a
24   physician at some point determine a diagnosis
25   for the patient.  My assessment would say that I
0019
 1   should order this test, because the end result
 2   would be, the problem things I'd refer to a
 3   physician.
 4               I do well woman care, so I see the
 5   patient.  I do the PAP smear, but I don't
 6   determine the diagnosis of the PAP smear or what
 7   any treatment would be for that PAP smear if
 8   other treatment would be needed.
 9         Q.    Let's talk about PAP smears.  As a
10   nurse practitioner, if you ordered a PAP smear,
11   were you able to determine whether the PAP smear
12   was normal or abnormal?
13         A.    Pathology does that.
14         Q.    Would you then interpret the
15   results?
16         A.    I would get the results of the PAP
17   smear, yes.
18         Q.    And if it was -- and correct me if I
19   am wrong -- if it was abnormal, would you then
20   refer the patient to a GYN for further medical
21   intervention?
22         A.    Yes.
23         Q.    And you have used the term well
24   woman exam and we will talk about that in a
25   moment.  But if there were any abnormal findings
0020
 1   or assessments that you made as a nurse
 2   practitioner, what was the requirement that you
 3   had as a nurse practitioner; what were you to do
 4   if an abnormal assessment was made in the
 5   context of a well woman exam?
 6               MR. RIEMENSCHNEIDER:  Objection.  Go
 7   ahead.
 8         A.    I would refer the patient to a
 9   physician, a GYN physician.
10         Q.    Was that your duty and
11   responsibility as a nurse practitioner when
12   doing a well woman exam?
13         A.    Yes.
14         Q.    So if a woman came in for a
15   scheduled breast exam, PAP smear, a yearly well
16   woman exam, and you assessed as a nurse
17   practitioner a finding that you believe to be
18   abnormal, your job was to refer that patient to
19   a GYN for further medical treatment?
20         A.    Yes.  I would recommend to the
21   patient, yes.
22         Q.    And was there a system set up as a
23   nurse practitioner for you to facilitate that
24   recommendation?
25               Let me rephrase that.  By your look
0021
 1   it may not have been a well worded question.
 2               If you see something that needs to
 3   be further evaluated in a well woman exam, what
 4   mechanisms did you have at Kaiser to make sure
 5   that that patient knew who she was to see and
 6   what tests needed to be done?
 7         A.    When I would take care of the
 8   patient, if the patient had a growth on the
 9   vulva and I was concerned, or I suspected, well,
10   I think that this needs to be looked at, I would
11   tell that patient, you need to make an
12   appointment with the physician.  The patient had
13   the responsibility to call.
14               If a physician was there in the
15   office that day, many times I would take the
16   time and go ask, do you have time to see this
17   patient?  They would say yes.  I would ask the
18   patient, do you have time to wait, because that
19   meant that the physician was also seeing their
20   own patients.  If the patient said yes, many
21   times they could be seen that day.  If it was
22   something, lab work, I sent the patient for an
23   ultrasound, the patient was told at the time of
24   the visit with me, you are to follow up with the
25   physician after these tests are done.
0022
 1               Many times that meant that they had
 2   to call back for an appointment and schedule
 3   with the physician.  It was not scheduled that
 4   day because that day I would not have known when
 5   results were going to be back.
 6         Q.    How would the patient know who to
 7   schedule the appointment with or when to
 8   schedule the appointment?
 9         A.    I would tell them to schedule with a
10   GYN physician in the office, in our facility,
11   and explain to them, I'm a nurse practitioner,
12   I'm not a physician; you need to see a GYN
13   physician.  And they understood that and they
14   would make the appointment.
15         Q.    So you would assume when you told a
16   patient that you are a nurse practitioner, not a
17   GYN, and that something needs to be followed up
18   by a GYN, did you assume that the patient would
19   make the appointment?
20         A.    Yes.
21         Q.    Would you give the patient any type
22   of documentation at the end of that visit to
23   confirm when the patient was to be seen and
24   perhaps the reason why they needed to be seen?
25         A.    I would not write anything on a --
0023
 1   no.  Not a piece of paper. Many times my
 2   patients -- women tend to do this, have
 3   calendars.  I would say, you need to write down
 4   on your calendar that as soon as you have this
 5   test done or that test done, you call
 6   immediately to make the appointment so that you
 7   can get in to see the physician and within that
 8   time span your results should be back and the
 9   physician that you are going to see will be able
10   to discuss that result with you.
11         Q.    Was there any mechanism in place at
12   Kaiser that would serve as a reminder to
13   patients?
14         A.    There are reminders, yes, for
15   different appointments, yes.
16         Q.    So, for example, in Lillian's
17   situation -- and I presume you have had a chance
18   to review your office note?
19         A.    I have reviewed my note.
20         Q.    And on your note in particular --
21   and let me just for purposes of identification
22   hand you what has been marked as Plaintiff's
23   Exhibit 1.  I have marked four pages.  Take a
24   look and see if these four pages all correspond
25   with your office visit or whether there is
0024
 1   something more or something less than what I'm
 2   handing you.  Look at it silently as opposed to
 3   talking as you are turning the pages and after
 4   you have looked at it sufficiently, let me know
 5   and we will go back on the record, okay?
 6               (Pause.)
 7         Q.    You have had a chance off the record
 8   to take a look at Exhibit 1 and my question was
 9   before we took the break, does this appear to be
10   all of the documentation that would have made up
11   your office note?
12         A.    Yes.
13         Q.    Before we talk about this -- well,
14   actually let me ask you one question since I was
15   on that subject.  At the very end of page two,
16   you have a note, pelvic ultrasound.  Follow
17   up --
18         A.    With a GYN MD.
19         Q.    -- with a GYN MD.  It says follow up
20   with GYN MD, advised?
21         A.    I put follow up with GYN MD,
22   advised.  I told the patient that.  That was to
23   let me know that I did advise her that she needs
24   to follow up.
25               And down here, I had -- yes, that's
0025
 1   what I put.  Follow up with a GYN MD, advised.
 2   And I write the word advised to let myself know
 3   and anyone else looking at my note that the
 4   patient was advised and informed to call.
 5         Q.    Now, what mechanism -- this is where
 6   we started before I handed you the exhibit --
 7   what mechanism in terms of a reminder system was
 8   in play back in 2004 so that your patients would
 9   be reminded that they needed to have a pelvic
10   ultrasound and needed to follow up with a GYN?
11         A.    I don't call them back to say you
12   need a pelvic ultrasound.  They were told that
13   on the day of the visit.  I don't make the
14   ultrasound appointment.  Radiology schedules
15   their ultrasounds.  In talking to the patients,
16   part of all this, I inform the patient if you do
17   not hear from ultrasound in a week to two weeks,
18   you are to call radiology.  You can call and
19   tell them you are waiting for an ultrasound
20   appointment; you were told that someone would
21   call you.
22         Q.    Okay.
23         A.    And the patients generally will call
24   because they know that they want the test done,
25   the ultrasound done.  Whether radiology sends
0026
 1   out a reminder, I don't know.  I don't work in
 2   radiology.
 3         Q.    Sure, I understand that.
 4               From what you have told me, you had
 5   an expectation as a nurse practitioner that in
 6   making a recommendation to a patient that a
 7   pelvic ultrasound be done, you had an
 8   expectation that the pelvic ultrasound would be
 9   conducted; true?
10         A.    Yes.
11         Q.    And I presume you also have an
12   expectation that if there were abnormal findings
13   on the ultrasound that there would be some
14   system in place for the patient to be notified
15   of the results?
16               MR. RIEMENSCHNEIDER:  Objection.
17         Q.    Is that a fair statement?
18               MR. RIEMENSCHNEIDER:  Objection.  Go
19   ahead.
20         A.    I would notify my patients that
21   ultrasounds confirmed my original thoughts if I
22   suspected fibroids.
23         Q.    In your experience as a nurse
24   practitioner, and perhaps even as an RN, did you
25   find it common that women that had well women
0027
 1   exams but needed to have additional testing to
 2   rule out a potential abnormality, that they
 3   needed some education about why the test was
 4   being ordered?
 5         A.    Would you repeat that, please?
 6         Q.    Sure.  If you did a well woman exam,
 7   you wouldn't always order a pelvic ultrasound;
 8   true?
 9         A.    True.
10         Q.    A pelvic ultrasound would be ordered
11   if you felt that there might be an abnormality;
12   correct?
13         A.    Yes.
14         Q.    And in fact, when you did the exam,
15   talking specifically about Lillian, you noted
16   that she had an enlarged bulky uterus consistent
17   with fibroids; true?
18         A.    Yes.
19         Q.    But without doing the pelvic
20   ultrasound, you weren't able to confirm the
21   nursing assessment; correct?
22         A.    Definitively, yes.
23         Q.    The pelvic ultrasound would provide
24   additional information as to whether the
25   enlarged bulky uterus was a benign or a
0028
 1   nonbenign finding; correct?
 2         A.    It would have, the ultrasound, the
 3   purpose of it was to confirm that the uterus was
 4   enlarged and whether or not it was fibroids,
 5   yes.
 6         Q.    What's a differential diagnosis?
 7         A.    There are several diagnoses, and you
 8   could suspect fibroids but a large uterus could
 9   be from a pregnancy.
10         Q.    Being that she was in her mid 50s,
11   with a history of hot flashes and not having had
12   a menstrual period for at least six months, was
13   pregnancy within your differential?
14         A.    At that time, no, not for that
15   patient.
16         Q.    What else within your differential
17   did you have other than fibroids?
18               MR. RIEMENSCHNEIDER:  Objection.
19         A.    Seeing this patient and reviewing my
20   note, I didn't have a differential diagnosis.  I
21   suspected possible fibroids.
22         Q.    So the only thing within your
23   differential was fibroids?
24         A.    Uh-huh, yes.
25         Q.    Let me back up for one second.  As a
0029
 1   nurse practitioner, did you receive a journal or
 2   literature as part of your membership to keep
 3   current on issues of well woman care?
 4         A.    If I chose to subscribe, yes.
 5         Q.    I take it from that you didn't
 6   subscribe?
 7         A.    No.
 8         Q.    How did you keep current?
 9         A.    Reading literature that would be in
10   the office that pertained particularly to what I
11   was doing.  I don't take care of abnormals, so
12   that's not what my interest was.
13         Q.    But even though you didn't take care
14   of abnormals, you were trained, were you not, to
15   recognize whether a finding on a GYN exam was
16   normal or abnormal?
17         A.    Possibly, yes.
18         Q.    Well, certainly you needed to be
19   able to differentiate a symptom or a finding
20   that might be totally benign and insignificant
21   from something that could potentially be more
22   serious?
23         A.    Yes.
24         Q.    And if something was potentially
25   more serious, you needed to have at least the
0030
 1   basic knowledge of what the finding could
 2   represent; correct?
 3         A.    Could represent.  There could be
 4   many things and I don't know all of them.
 5         Q.    Sure.  Let me help you out with the
 6   question.
 7         A.    Yes, please.
 8         Q.    In doing a well woman exam, there
 9   are certain parameters that you look at that
10   give you reasonable assurance that the patient's
11   health is stable?
12         A.    Yes.
13         Q.    There are certain parameters that
14   you see that give you reason for concern, not
15   necessarily a conclusion, but at least reason
16   for concern?
17         A.    Yes.
18         Q.    So there are findings that cause you
19   to have what one might refer to as an index of
20   suspicion that there might be a problem;
21   correct?
22         A.    Yes.
23         Q.    Not necessarily concluding that
24   there is a problem, but if you have an index of
25   concern that a finding is potentially abnormal,
0031
 1   you, as a nurse practitioner, had the duty and
 2   responsibility to take reasonable steps to make
 3   sure that that patient had appropriate testing
 4   and appropriate follow up; correct?
 5               MR. RIEMENSCHNEIDER:  Objection.
 6         A.    Yes.
 7         Q.    So that even though your training
 8   was in well woman care, you had sufficient
 9   training to recognize when something was not
10   normal or was not potentially normal; correct?
11         A.    Within my scope of practice, yes.
12         Q.    And I'm going to assume, but correct
13   me if I am wrong, that when you did this exam on
14   Lillian -- and we are going to talk about it in
15   detail -- when you saw that she had the enlarged
16   bulky uterus, 16 plus weeks, you marked down
17   that this was consistent with fibroids, but she
18   also had some other symptoms that caused you to
19   want to do further diagnostic testing to rule in
20   or to rule out fibroids; correct?
21         A.    You have to repeat that.
22         Q.    Sure.  By ordering the pelvic
23   ultrasound, one thought that I'm going to
24   conclude was in your thought process was that
25   these are benign fibroids in a perimenopausal
0032
 1   woman?
 2               MR. RIEMENSCHNEIDER:  Objection.  Go
 3   ahead.
 4         A.    When you say benign fibroids, I
 5   don't usually differentiate between benign and
 6   malignant.  That's not what my role is.  I
 7   wanted the ultrasound.  I thought it might be a
 8   fibroid uterus.  I ordered the pelvic ultrasound
 9   for that reason only.
10         Q.    Do ultrasounds provide the clinician
11   with additional information to determine whether
12   or not the uterus is benign or potentially
13   cancerous?
14         A.    The ultrasound usually will confirm
15   that it was fibroids.  I don't ever recall
16   seeing an ultrasound saying that this fibroid
17   appears to be malignant.
18         Q.    Would you ever look at serial
19   ultrasounds to see whether or not there had been
20   a change in the size of the uterus or the size
21   of the fibroids?
22         A.    At that point, serial ultrasounds,
23   usually I'm not still seeing the patient.
24         Q.    Why is that?
25         A.    Because I don't see like a problem
0033
 1   that might need at some point some type of
 2   intervention treatment.  If the woman would want
 3   surgery, I don't take care of that.  So I order,
 4   many times I will order the initial ultrasound,
 5   but I don't follow up on the ultrasound.  I
 6   don't follow up on abnormals, period.
 7         Q.    So given the fact that the
 8   ultrasound that was done on Lillian was, in
 9   fact, interpreted as abnormal -- and I'm going
10   to show you Plaintiff's Exhibit 2, which is
11   actually a copy of the ultrasound that was
12   done -- is it your testimony that based upon the
13   radiologist's interpretation of that being an
14   abnormal ultrasound, it would not be your
15   expectation that you would see this patient
16   again?
17         A.    No, it would not.  This patient
18   would follow up with the physician.
19         Q.    Okay.  Now, since you were the one
20   that had indicated in terms of the plan, pelvic
21   ultrasound, how was that ordered?  You told me
22   before that you are able to order tests.  Are
23   you able to order a pelvic ultrasound?
24         A.    Yes.  Usually a requisition is
25   completed.
0034
 1         Q.    And since you are the one that the
 2   plan was to do the pelvic ultrasound, would you
 3   have been the one that would have filled out the
 4   requisition for the pelvic ultrasound?
 5         A.    Or the nurse.  The nurse would have
 6   put the patient's name, imprint.  I fill out, on
 7   my patients that I see when I want to send them
 8   for ultrasounds, I fill out any clinical data.
 9   I would have put enlarged bulky uterus or
10   whatever that was there.  And the nurse -- and
11   on the requisition there is a place for last
12   menstrual period.  The nurse puts that in.  The
13   clinical data itself, I would put what I found
14   when I did the exam.  I felt an enlarged uterus.
15         Q.    And that would go on the requisition
16   form?
17         A.    That would go on the requisition.
18         Q.    In being shown the records for your
19   visit on October 8th, 2004, have you been shown
20   a requisition that you filled out or the nurse
21   filled out for this ultrasound?
22         A.    No.  You mean on the day of the
23   visit did I see it?
24         Q.    No.  Have you seen it?  Do you know
25   whether one exists, a requisition?
0035
 1         A.    I just know one would have had to
 2   have been filled out for ultrasound to know
 3   about it.
 4         Q.    And it would have been filled out
 5   by -- it would have been signed by you; correct?
 6         A.    You don't sign it.  There is no
 7   place for signature.  You put ordering clinician
 8   and my name would have been on there.
 9         Q.    And then the nurse, who we know was
10   Callenborn -- was it Patricia Callenborn?
11         A.    Patti Callenborn, yes.
12         Q.    Would Patti have filled out the
13   pertinent clinical data on enlarged bulky uterus
14   or would that have been most likely what you
15   would have written?
16         A.    In the clinical section of that,
17   normally the provider puts that information in.
18         Q.    And it would have then shown that
19   the ordering clinician was Evelyn James; true?
20         A.    Yes.
21         Q.    That's the standard procedure that
22   is followed?
23         A.    Yes.
24         Q.    And then the reason that that is
25   done is so that you as the ordering physician
0036
 1   would receive the results of the tests that you
 2   ordered; correct?
 3         A.    Yes.
 4         Q.    And if there was an abnormal result
 5   on a pelvic ultrasound, would you expect that as
 6   the ordering physician that that would be
 7   communicated back to you?
 8         A.    It should have come back to me.
 9         Q.    In this case, did it come back to
10   you?
11         A.    I have no idea.  That was in 2004.
12         Q.    I don't see any documentation in the
13   record that the results from the abnormal
14   ultrasound were sent to you, either by way of
15   copy or communicated to you by the radiologist.
16   Do you see anything in the review that --
17         A.    This is what I have.  I don't see --
18   you know, you see that report.  I don't recall
19   if I ever received the report, I don't know.
20         Q.    Let me ask you this.  Assuming that
21   the ultrasound had been reported back to you as
22   the ordering clinician, and you had received
23   what is marked as Plaintiff's Exhibit 2, can we
24   agree that you would have looked to see that
25   this patient was being followed up?
0037
 1         A.    That the patient had an appointment,
 2   yes, that's what I usually check.
 3         Q.    All right.  And that appointment
 4   would be with GYN; correct?
 5         A.    A physician, yes.
 6         Q.    Would it be with GYN?
 7         A.    It would be with a GYN physician,
 8   yes.
 9         Q.    Okay, got it.  Now, in this case, we
10   know that Lillian was never, was not seen by a
11   GYN until May of 2005 after this ultrasound.
12               Do you have any explanation for why
13   these abnormal results, which, if proper
14   procedure was followed should have been brought
15   to your attention, why the patient wasn't seen
16   until May of 2005?
17         A.    I'm looking.  I saw her October and
18   she had the ultrasound done almost a month
19   later.  She had the ultrasound done.
20               If the report came to me, I would
21   have been the one following up.
22         Q.    You would have had a duty as a nurse
23   practitioner responsibility to follow up on this
24   result from -- I'm reading upside down --
25         A.    From November 5th.
0038
 1         Q.    -- from November 5th -- let me
 2   finish my question first -- to make sure that
 3   this information was provided to a GYN physician
 4   and that the patient was followed up on these
 5   abnormal findings?
 6               MR. RIEMENSCHNEIDER:  Objection.
 7         Q.    Tell me, if this report, as the one
 8   that had filled out the requisition, if this
 9   information came to you, what would you have
10   done in order to do your job and follow the
11   rules at Kaiser?
12               MR. RIEMENSCHNEIDER:  Objection --
13         Q.    Go ahead.
14               MR. RIEMENSCHNEIDER:  -- as to the
15   framing of the question.
16         Q.    Go ahead.
17         A.    If I had gotten the report back,
18   number one, nothing about this would have made
19   sirens and things go off for me.  The abnormal
20   would have been that they saw fibroids in a
21   uterus.  A normal uterus does not contain
22   fibroids.
23               There was nothing here that would
24   have alarmed me greatly and I would have most
25   likely checked the appointment center to see if
0039
 1   she had an appointment.  I would not have gotten
 2   on the phone myself and called the appointment
 3   center.  I probably would have said to a nurse,
 4   would you check to see if she had been scheduled
 5   with any of our physicians as yet.
 6         Q.    And that would be any of the GYN
 7   physicians?
 8         A.    Yes.
 9         Q.    If you followed that process and if
10   you were told that she had not been scheduled to
11   be seen by any of the GYN physicians as of that
12   time, what, if anything, would you have done?
13         A.    Most likely told the nurse to call
14   the patient, offer her an appointment.
15         Q.    Would that be the standard procedure
16   at Kaiser?
17         A.    It would be my standard.
18         Q.    And was that what you practiced
19   throughout your years at Kaiser?
20         A.    Yes.
21         Q.    And would you have a reasonable
22   expectation that the people in the telephone
23   encounter area would follow up on your request
24   to contact the patient?
25         A.    Yes.  And my reasonable expectation
0040
 1   is that that patient would have already called
 2   to schedule that appointment as soon as she got
 3   the date for her ultrasound.
 4         Q.    Do you have any explanation in this
 5   case why the ultrasound carries the name of
 6   Patricia Grayson as the ordering physician as
 7   opposed to Evelyn James as the nurse
 8   practitioner?
 9         A.    I can only speculate that radiology
10   many times, even on a mammogram, if a nurse
11   practitioner or a physician assistant would
12   order it, they would automatically put the
13   ordering clinician down and also the primary
14   care provider's name on the requisition.  Why
15   they would do it, I don't know.
16         Q.    And why your name as the ordering
17   clinician isn't included on this report, you
18   have no explanation?
19         A.    I have no explanation.
20         Q.    If this report had come back to your
21   attention and you had followed up to see whether
22   the patient had an appointment or learning that
23   she didn't have an appointment asked Kaiser to
24   contact the patient and offer her an
25   appointment, having seen Kaiser records, in this
0041
 1   case, and in the past, would you expect that
 2   that communication by you, having seen the
 3   report, checking to see if the patient has an
 4   appointment, would be recorded in terms of
 5   either a telephone encounter or some entry in
 6   the Kaiser record?
 7         A.    Ordinarily, yes.
 8         Q.    Do you know of any such
 9   documentation that would suggest that as the
10   ordering clinician you were notified of these
11   abnormal results in this case?
12         A.    I can't recall.
13         Q.    But in looking at the records, has
14   anything been shown to you to suggest --
15         A.    In this one record here, if this is
16   it, it does not say, oh, yes, I got the
17   ultrasound report.
18         Q.    Okay.  And in fairness to you, has
19   anything been presented to you in the Kaiser
20   records by counsel that would suggest, would
21   permit you to say that the ultrasound results
22   that we are looking at in Exhibit 1 were, in
23   fact, brought to your attention?
24         A.    Would you repeat that?
25         Q.    Sure.  Have you seen anything or has
0042
 1   any information --
 2         A.    You mean in 2004 did I see anything?
 3         Q.    No.  In preparing for the
 4   deposition, has anything in the Kaiser records
 5   been shown to you -- let me finish -- anything
 6   in the Kaiser records been shown to you that
 7   would suggest that the results of the ultrasound
 8   were brought to your attention?
 9         A.    This is all I have seen.
10         Q.    Well, and what I would like to do
11   is -- I'm more than happy to hand you the entire
12   record, unless we can just avoid this and
13   stipulate that there is nothing that would
14   suggest that the report was brought to your
15   attention and that you checked.  Because I would
16   like to challenge you to show me anywhere in the
17   record where there is any indication that this
18   abnormal ultrasound was communicated to you.
19               MR. MISHKIND:  Dirk, do you know of
20   anything?
21               MR. RIEMENSCHNEIDER:  I'm not aware
22   of anything written.
23               If you have a usual custom and
24   practice as to what occurred back in '04 that
25   you can say something, that's one thing.  But
0043
 1   you have seen the records that I have seen.
 2               MR. MISHKIND:  The only reason I
 3   asked that --
 4               MR. RIEMENSCHNEIDER:  And whether
 5   there is something we haven't received yet is
 6   another issue.
 7               MR. MISHKIND:  Obviously we have
 8   gotten a huge set of records and phone calls and
 9   phone encounters and I haven't seen anything.
10         Q.    And I think you told me before that
11   the custom and practice at Kaiser would be if
12   the abnormal ultrasound in Exhibit 2 had been
13   brought to your attention, the normal practice
14   would be for there to be an encounter note that
15   you as the clinician that ordered this test
16   result contacted scheduling to see if the
17   patient had made an appointment; correct?
18         A.    Yes.
19         Q.    That's standard and customary
20   practice?
21         A.    That's my standard.
22         Q.    Okay.  And your standard and custom
23   and practice, if Exhibit 2 had been brought to
24   your attention, would be to then ask the
25   telephone people or someone in the office, the
0044
 1   scheduling office, to offer the patient an
 2   appointment to follow up with a GYN physician?
 3         A.    Physician.
 4         Q.    And that would be your custom and
 5   practice if you were made aware of the results
 6   of the ultrasound; correct?
 7         A.    Yes.
 8         Q.    If you weren't made aware of the
 9   ultrasound results, can we agree that there
10   would be no way for you to have an encounter
11   note checking on whether the patient did or did
12   not schedule an appointment?
13         A.    Right.
14         Q.    Okay.  After this appointment that
15   we are going to talk about in greater detail,
16   did you ever have any further contact, to your
17   knowledge, with Lillian?
18         A.    I don't recall.  And there is only
19   one note from me.  I don't recall ever seeing
20   this patient again.  I don't really recall the
21   patient.
22         Q.    That was going to be my next
23   question.  I'm assuming that some of the
24   information or most of the information that you
25   are deriving is based upon the records as well
0045
 1   as your normal custom and practice; correct?
 2   That's a yes?
 3         A.    Yes.
 4         Q.    And the normal custom and practice
 5   you told me about relative to the ultrasound if
 6   this had been brought to your attention is what
 7   you would have done?
 8         A.    Yes.
 9               MR. RIEMENSCHNEIDER:  Objection.
10         Q.    Do you have any recollection of ever
11   discussing Lillian's care with Dr. Verghese?
12         A.    No.
13         Q.    Are you aware of the fact from
14   Dr. Verghese or anyone at Kaiser, such as
15   Dr.  Gibbs or Dr. Shuffer that they have been
16   deposed?
17         A.    No.
18         Q.    What about Dr. Grayson?
19         A.    No.
20         Q.    When is the last time you had any
21   direct contact, either in person or by phone,
22   with any of your GYN colleagues since December
23   of 2007?
24         A.    I haven't seen any of them.
25   December 2007.
0046
 1         Q.    Have you at any time since Lillian
 2   died --
 3         A.    When did she die?
 4         Q.    She died in January of 2006.  Have
 5   you had any communication with the doctors that
 6   I just mentioned about this patient?
 7         A.    No.
 8         Q.    What is your definition of
 9   menopause?
10         A.    It's the end of the child bearing
11   years for a woman and the end of menses after a
12   woman has gone one full year without a period.
13         Q.    What are menopausal symptoms?
14         A.    That varies.  It could be hot
15   flashes, could be skipped periods, could be
16   irregular periods in the sense of flow and
17   duration.  Sometimes forgetfulness for some
18   women.
19         Q.    Forgetfulness as to when they last
20   had their period or memory forgetfulness?
21         A.    Forget where they put their purse
22   mostly.
23         Q.    Is there a difference between
24   menopausal symptoms and the state of menopause?
25         A.    Menopause itself is when the woman
0047
 1   has gone a full year without her period.
 2   Menopausal symptoms, you can have them, some
 3   women have them in their late 30s, early 40s,
 4   but menopause itself is not the symptom.
 5   Menopause is when you have gone a full year
 6   without your period.
 7         Q.    Let's talk about the visit.  You can
 8   certainly refer to the note.
 9               This was a scheduled well woman
10   exam?
11         A.    Yes.
12         Q.    Why did Lillian see you for a well
13   woman exam as opposed to a GYN physician?
14         A.    I can't answer that for her.  If she
15   called in for the appointment and she said I
16   need a physical, my GYN routine exam, they
17   would've put her on my schedule.
18               One indication here is I usually
19   talk to the patients, ask them if anything else
20   is going on, and I would have probably said to
21   Ms. Dailey, so why did you decide to come for
22   your PAP now because your last PAP was 1999.
23         Q.    Okay.
24         A.    And she must've said to me, she
25   received a PAP outreach call.
0048
 1         Q.    Tell me about that.  What is a PAP
 2   outreach call?
 3         A.    A PAP outreach call is something
 4   that's been in place for nearly ten years.  The
 5   previous chief of the department, Dr. Benstock,
 6   had gotten some protocols together and as he
 7   would review PAPs and look at records and
 8   things, the numbers of people who were coming in
 9   for well woman care, just routine things --
10   Kaiser is preventative medicine so you get
11   people in to take care and keep them healthy.
12   He started having patients called that they had
13   not had an appointment for three years for a PAP
14   exam.  They would get a phone call.  If phones
15   were disconnected, Kaiser would even send out
16   letters.
17               And evidently because I wrote
18   received PAP outreach call, she indicated to me
19   that she had received a phone call and that's
20   what prompted her to make the appointment.
21               She didn't comment about any other
22   complaints that she was concerned about because
23   it's not documented up here where it says reason
24   for visit.
25         Q.    WWE, does that stand for well woman
0049
 1   exam?
 2         A.    Well woman exam.
 3         Q.    Is that written by the nurse?
 4         A.    The nurse writes that in.  She does
 5   this part.
 6         Q.    You are referring to from reason for
 7   visit --
 8         A.    Down to allergies and medications.
 9   And when I would come into the room, I would
10   just go over, you are here for a PAP, to get
11   your PAP.  You are here for an exam.  We will do
12   your breast exam.  I'll do an abdominal exam and
13   I'll also do a pelvic and do your PAP smear.  I
14   review this.  I said, is it true your last
15   menstrual period was six months ago.
16         Q.    This is based upon your custom and
17   practice.  You don't remember specifically doing
18   it on this patient?
19         A.    I always do that, yes, customary.
20   Here if I didn't mention anything different, I
21   would have known that I reviewed this with her.
22         Q.    Let me go back to my question,
23   though.  My question to you was, you don't
24   remember specifically asking this patient.  What
25   you are testifying to in terms of going over the
0050
 1   last menstrual period six months ago is based
 2   upon what your custom and practice; correct?
 3         A.    If I remember my exact conversation
 4   with her?
 5         Q.    Right.  You don't.  So what you just
 6   told me a moment ago was what your normal custom
 7   and practice was.
 8         A.    Yes.
 9         Q.    Correct?
10         A.    Yes.
11         Q.    Now, you started then to talk about
12   your notes at the bottom.  It looks like you
13   have last menstrual period and it looks like --
14   at least I'm interpreting that to be --
15         A.    Greater than six months ago.
16         Q.    Okay.  So that --
17         A.    That let me know that I reviewed
18   with her.  She said it could have been six
19   months ago or she could've said it was seven
20   months ago.  If she gave me a month, rather than
21   a numerical item, if she said I don't remember
22   if it was June or July, if it was June and I
23   might have put six months ago or whatever she
24   said, but here I put last menstrual period was
25   greater than six months ago.  She did not say my
0051
 1   last period was two years ago or anything like
 2   that.
 3         Q.    But to go back to what you just said
 4   a moment ago, the nurse marked down last
 5   menstrual period six months ago; true?
 6         A.    Yes.
 7         Q.    When you asked her questions, I
 8   presume you don't remember the specific answers
 9   that she gave you to those questions; is that a
10   fair statement?
11         A.    Not specific.  But if I put greater
12   than six months ago, she might have said to me,
13   I'm not sure if it was exactly six months.
14         Q.    Okay.  And again, you don't remember
15   the specifics --
16         A.    Verbatim.
17         Q.    Let me finish, please.  You have a
18   tendency --
19         A.    And I apologize to you.
20         Q.    Especially with regard to this line
21   of questioning.
22         A.    Okay.
23         Q.    Can we agree that when you asked her
24   questions, she said something to you that caused
25   you to mark down that her last menstrual period
0052
 1   was greater than six months ago; correct?
 2         A.    I would say yes.
 3         Q.    As to the specifics of what she said
 4   to you, it might have been seven months, it was
 5   more than six months.  The specific context of
 6   that conversation, is it fair to say that you
 7   don't recall?
 8         A.    I can't say that it's fair to say
 9   that when I'm looking at my note here.
10         Q.    Is it fair to say that she said
11   something to you that caused you to mark down
12   that her last menstrual period was greater than
13   six months as opposed to six months?
14         A.    Exactly six months, yes.
15         Q.    And the quantity or the length of
16   time that her period was greater than or longer
17   than six months ago, you didn't make any
18   notation to further define her answer; correct?
19         A.    No.
20         Q.    Now, initially you marked down last
21   menstrual period greater than six years and then
22   you corrected that and marked down greater than
23   six months; correct?
24         A.    Uh-huh.
25         Q.    Is that a yes?
0053
 1         A.    Yes.
 2         Q.    If she had told you when you -- and
 3   you told me a moment ago when you come in you
 4   review what the nurses have marked down.
 5         A.    Yes.
 6         Q.    And if she had told you, yes, my
 7   period was six months ago as was marked down,
 8   you would have marked down either nothing,
 9   because it would have been consistent with the
10   nurse's note, or you would have marked down last
11   menstrual period six months ago; correct?
12         A.    I would have written last menstrual
13   period six months ago or I would have written
14   last menstrual period, dot, dot, dot, whatever
15   the date and the month was.
16         Q.    So we can conclude, can we not, that
17   whatever she told you, the specifics of that you
18   don't recall; correct?
19         A.    I can't recall if she told me six
20   months and three days or six months and ten
21   days, no.
22         Q.    Nor can you recall whether she told
23   you that it was more than six months ago; I just
24   don't remember exactly when it was?
25         A.    You are asking me if that's what she
0054
 1   said.  I don't know what she said.  I can't
 2   remember exactly.
 3         Q.    Whatever she said to you caused you
 4   to indicate that her period, her last menstrual
 5   period was more than six months ago?
 6         A.    Yes.
 7         Q.    How many days or how many weeks or
 8   how many months before, that's impossible for
 9   you to say?
10         A.    Right.
11         Q.    Now, of what significance was the
12   hot flashes, not severe, in this patient?
13         A.    Just a question that I asked.  Have
14   you had hot flashes, are they bothersome, and
15   she had said hot flashes, but they weren't
16   severe.  They were not bothering her to the
17   point that she came in and said what can I do
18   about these hot flashes.
19         Q.    Now, Lillian was an African-American
20   woman, correct?  Or did you know that she was an
21   African-American woman?
22         A.    I can't recall.  I didn't write --
23   oh, 55-year-old black female, yes.
24         Q.    And by her height and weight, can we
25   agree that she was obese?
0055
 1         A.    She was overweight, yes.
 2         Q.    Would you define five foot eight,
 3   245 pounds from a body mass index as being obese
 4   or just simply overweight?
 5         A.    She is five foot eight.  By her BMI
 6   she would have been obese.
 7         Q.    Along the problem list on the
 8   left-hand side of the sheet, is that information
 9   printed in advance of the appointment on this
10   sheet?  Do you have that information along the
11   left-hand side?
12         A.    Yes, this would have come out, this
13   would have been on the sheet, yes.
14         Q.    And that's along the left-hand side
15   of the front page of Exhibit 1; is that correct?
16         A.    Yes.
17         Q.    And is that derived from information
18   that is contained in the chart from prior
19   visits?
20         A.    Yes.
21         Q.    So you would have known that one of
22   her problem areas was irregular periods?
23         A.    Yes.
24         Q.    In seeing her, did you ask her how
25   long she had had irregular periods?
0056
 1         A.    No.  From this note I don't.
 2         Q.    Would you in your normal custom and
 3   practice ask a patient who has a history of
 4   irregular periods that is 55 to describe the
 5   nature of the periods in terms of the flow and
 6   how irregular they are subjectively to the
 7   patient?
 8         A.    No.  Not with this patient.  If she
 9   had commented early on, oh, and I'm having a
10   problem with bleeding, my periods, I would have
11   gotten into this more, but I did not.
12         Q.    Isn't it your responsibility as the
13   clinician to ask the right questions of a
14   patient?
15         A.    In relationship to what they are
16   coming to see me for, yes.
17         Q.    Well, even though it's a well woman
18   exam, you said that Kaiser is in the business of
19   preventative medicine; correct?
20         A.    Sure.
21         Q.    And part of your job as a
22   preventative medicine practitioner is to ask the
23   right questions to prevent problems from
24   developing; correct?
25         A.    Hopefully.
0057
 1         Q.    And in a well woman exam, isn't it
 2   reasonable for you to inquire of a patient as it
 3   relates to the historical data, as it relates to
 4   their irregular periods?
 5               MR. RIEMENSCHNEIDER:  Objection.  Go
 6   ahead.
 7         A.    No.
 8         Q.    Why?
 9         A.    Because I don't cover that.  If she
10   came to me for a well woman exam, the fact that
11   I ask her about her periods, I didn't go into it
12   any more because she was not having the problem
13   at that time.  She could've had an irregular
14   period before because it came on the 16th and it
15   usually comes on the 10th.  No, I did not get
16   into that with her because it was not relevant
17   to me for this visit with her.
18         Q.    Did you know whether Lillian knew
19   the limitation of your practice as a nurse
20   practitioner in terms of doing a well woman exam
21   compared to a well woman exam that would be
22   performed by a GYN MD?
23         A.    Yes.
24         Q.    How would she know that?
25         A.    Because when the patient comes into
0058
 1   the room -- many times I am mistaken and I'll
 2   introduce myself and they will say, okay,
 3   Dr.  James and I correct them.  I am not a
 4   doctor, I'm not a physician, I'm called a nurse
 5   practitioner.
 6               Many times if they give me a look,
 7   I'll say a nurse practitioner is this, this and
 8   this and I'll explain that to them.  I will
 9   often give them an option at that time.  Have
10   you ever seen a nurse practitioner before?  If
11   they say yes or no, I'll say, are you
12   comfortable seeing me today?  What I will be
13   doing for you is routine things; PAP.  If you
14   prefer, I will assist you in making an
15   appointment with a physician.  I always offer
16   that to the patients.
17         Q.    If there is any question as to the
18   difference between what you will be doing in
19   that well woman exam and what a GYN doctor will
20   be doing?
21         A.    I offer it to them because I feel
22   they have a choice and it's not so much -- if it
23   was a major problem, I'll start out telling
24   them, period, you should have been on a
25   physician's schedule; I will assist you.  But I
0059
 1   give them the option to see me or to see a
 2   doctor.  I always talk to them about that.  I
 3   don't know how else to say that.  I just always
 4   offer that to them.
 5         Q.    If the patient doesn't say anything
 6   when you come in and just recognizes that you
 7   are a nurse practitioner but doesn't ask any
 8   questions about the difference, do you --
 9         A.    I explain to them what a nurse
10   practitioner is.  I do that to all the patients.
11         Q.    Each and every patient --
12         A.    Yes.
13         Q.    -- with each and every visit --
14         A.    Yes.
15         Q.    -- since the time you were a nurse
16   practitioner?
17         A.    Yes.
18         Q.    It's your testimony under oath that
19   you will tell each and every patient for each
20   and every visit --
21         A.    Yes.
22         Q.    -- the limitation of your practice
23   as a nurse practitioner compared to what a GYN
24   MD would be doing?
25         A.    Yes.  New patients.  Patients that I
0060
 1   normally follow, they have seen me long enough,
 2   they know, because I have probably told them
 3   from the very beginning.  But new patients, yes.
 4               Just from this, I don't believe I
 5   had ever seen Ms. Dailey at any other time other
 6   than this visit.
 7         Q.    Okay.  Continuing with the progress
 8   note, in addition to the hot flashes, she also
 9   apparently indicated to you or at least you
10   marked it down, sometimes will have light
11   spotting.  Were you able to determine the
12   frequency of that spotting?
13         A.    Yes.  And it's not written here, but
14   I would have questioned her about the spotting.
15   You know, is it often, things like that.  If it
16   was something that she had said, I'm spotting
17   like every other day, I would have put that in
18   my note.  Light spotting for a woman 55, it's
19   not uncommon.
20         Q.    In looking at this note, it doesn't
21   say how long she had had the light spotting;
22   correct?
23         A.    No.
24         Q.    It doesn't say how frequently she
25   was having the light spotting, does it?
0061
 1         A.    No.
 2         Q.    If the spotting was frequent, if the
 3   spotting had been a process that had been
 4   ongoing for months, even greater than six
 5   months, would that have been a concern to you as
 6   a nurse practitioner?
 7         A.    Yes.
 8         Q.    And what would that have suggested
 9   to you?
10               MR. RIEMENSCHNEIDER:  Objection.  Go
11   ahead.
12         Q.    Go ahead.
13         A.    I would have told her to see a
14   physician.
15         Q.    What concern, even though you are
16   not arriving at a diagnosis, but what concern
17   would you have had that would have caused you to
18   recommend that she be seen by a GYN physician?
19         A.    I would have worried about if
20   possibly she had an endometrial polyp, things
21   like that.  If she was spotting all the time,
22   was it true spotting.  If it was an annoyance to
23   her, hindrance, how it was affecting her
24   activities of daily living.  Things like that.
25   Those are the things I would have questioned.
0062
 1               I wouldn't have necessarily thought,
 2   oh my God, but I would have told her to follow
 3   up with a physician.  And after doing her exam,
 4   tying in the spotting, possibly it's related
 5   that she has a fibroid that's causing her a
 6   problem.
 7         Q.    You don't want to make the patient
 8   panic?
 9         A.    I don't like to plant fear.
10         Q.    Sure.  You want to approach things
11   reasonably; correct?
12         A.    Right.
13         Q.    And if on the other hand there is
14   something that is potentially of concern in a
15   diplomatic manner, you have a duty and a
16   responsibility to educate the patient; true?
17         A.    Yes.
18         Q.    And to make appropriate
19   recommendations to the patient?
20         A.    Yes.
21         Q.    Such as you did with regard to the
22   pelvic ultrasound?
23         A.    Yes.
24         Q.    And while you don't want to panic or
25   get the patient panicky, if a patient has
0063
 1   spotting that is frequent and has been ongoing
 2   for greater than six months, while you might not
 3   use the term cancer, can we agree that at least
 4   within your differential, in your mind set, that
 5   the possibility of cancer could not be ruled
 6   out?
 7               MR. RIEMENSCHNEIDER:  Objection.  Go
 8   ahead.
 9         A.    I have to be honest.  Cancer
10   probably would not have been on my mind.
11         Q.    And why is that?
12         A.    At that point in time, with this
13   patient, and because I can't see her
14   unfortunately today and sit here and talk to
15   her, it would have been things that possibly,
16   you know, that in conversation as we talk that
17   put me at ease enough that I felt like I don't
18   think this is something that is of great
19   concern.
20               If I don't do anything else -- I
21   don't know how to say this to you.  The way I
22   practice, if I don't do anything else, even go
23   out in the hall and get a physician and drag him
24   in the room if there is one there that day,
25   there was nothing that was said that day that
0064
 1   caused me great alarm.
 2         Q.    Do you know whether there were any
 3   physicians available on that day?
 4         A.    Being 62, I couldn't tell you if my
 5   husband did something yesterday.
 6               No, I don't know how you check
 7   schedules, I don't know.  But if she was not
 8   bleeding that day, this is not one of the days I
 9   would've gone out in the hall and gotten him.
10         Q.    Were her symptoms of hot flashes
11   consistent with a patient in menopause?
12         A.    Yes.
13         Q.    Were her symptoms of spotting -- and
14   we will use the term light spotting --
15   consistent with a patient in menopause?
16         A.    Yes.
17         Q.    On exam, it looks like when you did
18   a vaginal exam, there was a curdy C-U-R-D-Y
19   discharge?
20         A.    Yes.
21         Q.    And even though it's not referenced
22   specifically, did you diagnose some form of a
23   vaginitis?
24         A.    Yes.  It would have been yeast.  And
25   in reviewing this I see that I did not put that
0065
 1   in my assessment but I gave her a prescription
 2   for Diflucan, which is an antifungal.
 3         Q.    And I see along the right-hand side
 4   it does say Diflucan 150 milligrams.  Just one
 5   time a day?
 6         A.    It's only once.
 7         Q.    Once, okay.  But we can agree that
 8   your assessment, your nurse practitioner
 9   assessment does not refer to a nursing
10   assessment of a yeast infection?
11         A.    No.
12         Q.    Do you have any explanation for why
13   you didn't mark down yeast infection or
14   vaginitis in the assessment on this particular
15   day?
16         A.    It was an omission on my part.  I
17   can't tell you why I didn't put it in there or
18   anything.
19         Q.    Okay.  There is a reference to PAP
20   and mammogram guidelines.
21         A.    Yes.
22         Q.    Can you tell me, it says PAP and
23   mammogram guidelines explained.  Tell me about
24   that.
25         A.    I explained to the patients as part
0066
 1   of their situation that I do what a woman should
 2   do routinely for health maintenance; how often
 3   she should have a mammogram.  I explained to her
 4   that age 50 and over she should be getting a
 5   mammogram once a year.  If she has never had an
 6   abnormal PAP smear, every two to three years
 7   it's okay.  If she had had an abnormal PAP, she
 8   would need a PAP more often.  She would need a
 9   PAP yearly.
10               I would have told her that if this
11   particular PAP we did today came back normal, I
12   would still like for her to come back in one
13   year for another PAP smear so we can at least
14   get two normal PAPs in a row because she had not
15   been in since '99.
16         Q.    Anything else with regard to the
17   guidelines that you would have explained?
18         A.    No.
19         Q.    Would you have given her anything in
20   writing relative to the guidelines?
21         A.    I would have given her a
22   mammogram -- there is a booklet that we give
23   them explaining how to do self mammograms.
24         Q.    Self breast exams?
25         A.    I'm sorry, self breast exams.
0067
 1   Probably would have given her that leaflet.  If
 2   I had handed it to her, I would have given, put
 3   in my notes mammogram literature given.  Many
 4   times the nurses will hand it to them as they
 5   are leaving.  We have a whole rack where you
 6   have pamphlets and things where patients can
 7   pick these things up.
 8               If it's patients that are expressing
 9   they have questions because of family history
10   that they are not sure, those are the patients a
11   lot of times I would make a point of going out,
12   pulling different literature out myself and
13   handing it to them.  And when I would do that, I
14   would say, mammogram literature given or breast
15   literature given.  I didn't write that so I
16   don't think I gave her anything.  I didn't give
17   it to her.
18         Q.    Did you indicate to her how soon
19   after the pelvic ultrasound she was to be seen
20   by a GYN?
21         A.    I usually tell them as soon as you
22   get the call and they give you the appointment
23   date for the ultrasound, you get on the phone
24   and you call for your appointment and let them
25   know that Mrs. James said you can be seen within
0068
 1   a week of the ultrasound, a week to two weeks,
 2   because I know that might be the time span that
 3   they will get in to be able to see a physician.
 4               If something came back, if radiology
 5   called about something that they said was very
 6   suspicious and they suspected malignancy or
 7   anything, they would tell me they told the
 8   patient to call my office so that I'll know that
 9   they are going to call.
10               Usually by that time I would have
11   already talked to one of the nurses so that we
12   could work around a physician's schedule and
13   just add the patient on.
14         Q.    In terms of telling the patient that
15   when you schedule the ultrasound that you should
16   also schedule the appointment with the GYN, is
17   that something that you consider to be your
18   standard of practice what you as a reasonable
19   and prudent nurse practitioner should do with
20   patients?
21         A.    Yes.
22         Q.    And is it fair to conclude that that
23   was one of your duties, one of your
24   responsibilities to educate the patient, not
25   only on scheduling the pelvic ultrasound, but
0069
 1   also making the appointment for follow up to see
 2   the GYN to review the results of the pelvic
 3   ultrasound?
 4               MR. RIEMENSCHNEIDER:  Objection.
 5               (Record read.)
 6         A.    Are you saying I should have made
 7   the appointment?
 8         Q.    No.  Educating the patient that,
 9   number one, you, Lillian, need to schedule a
10   pelvic ultrasound, and you, Lillian, need to and
11   should at the same time schedule a follow-up
12   appointment so that the pelvic ultrasound
13   results can be reviewed with you, Lillian, and a
14   GYN physician.
15         A.    I do educate the patient about that
16   with one exception.  I don't tell her to make
17   the ultrasound appointment because at the time
18   she wouldn't have been able to.  The ultrasound
19   department calls the patient and initiates that
20   appointment, schedules it and everything.  The
21   patient just can't call them and say I want to
22   schedule the ultrasound appointment.
23         Q.    All right.  We know that Lillian did
24   schedule or did within a month's period of time
25   have the pelvic ultrasound; correct?
0070
 1         A.    Yes.
 2         Q.    And that certainly was reasonable
 3   for her in terms of following up on the
 4   requisition and then the scheduling to have the
 5   ultrasound done within a month?
 6         A.    Yes, if that's when they called her.
 7         Q.    And we don't know when she was
 8   contacted because we don't have the requisition.
 9   And do you have any explanation as you sit here
10   right now why Lillian was not contacted by
11   anyone from Kaiser to schedule a follow-up visit
12   to review the pelvic ultrasound?
13               MR. RIEMENSCHNEIDER:  Objection.
14         A.    I don't know that she wasn't.  I
15   don't know.
16         Q.    Well, one possibility is that you
17   never received the results and therefore never
18   contacted the telephone people to contact her.
19         A.    I don't recall.
20         Q.    That's a possibility?
21         A.    I cannot swear to you that, oh, no,
22   I didn't do that because I didn't receive that.
23   I don't know.  I don't remember.
24         Q.    Okay.  Do you have an opinion as a
25   nurse practitioner whether it would have been
0071
 1   reasonable and prudent for Lillian to be seen
 2   for follow-up after this pelvic ultrasound
 3   sooner than May of 2005?
 4               MR. RIEMENSCHNEIDER:  Objection.  Go
 5   ahead.
 6         A.    As a nurse practitioner, I don't
 7   feel that that's my call to make.
 8         Q.    Fair enough.  As a nurse
 9   practitioner -- and again, parenthetically, I
10   realize you only treat well woman patients --
11   but you are at least trained to recognize
12   abnormalities.
13               With that in mind, do you know
14   whether Lillian as an African-American, advanced
15   age, 55, obese, with diabetes, whether or not
16   she was at increased risk of either a uterine
17   cancer or uterine sarcoma?
18               MR. RIEMENSCHNEIDER:  Objection.
19         A.    Professionally I can't say that she
20   was at an increased risk.
21         Q.    Do you know whether those factors,
22   African-American, obese, 55 years of age,
23   whether those factors are risk factors in a
24   woman for the development of uterine cancer?
25         A.    I can't say to you, yes, I know
0072
 1   those things, because I don't.
 2               MR. MISHKIND:  Off the record.
 3               (Discussion off the record.)
 4               MR. MISHKIND:  I do have a few more
 5   questions for you.
 6         Q.    The issue with regard to the curdy
 7   discharge, first, how did you come to that
 8   descriptive term?
 9         A.    Because it's most likely what I saw
10   in her vagina that day.  She did not complain
11   about an itch or anything, you know.  That was
12   not a complaint because it wasn't up here.  And
13   even in my notes, things she would've said to
14   me, I did not document she said anything.
15               But I do a complete vaginal exam and
16   if I see anything in her vagina -- and I look
17   for discharge and things like that.  I saw the
18   curdy discharge and I did what they call a wet
19   mount.  I went and looked -- because I
20   documented it that the wet mount was done, here
21   on this sheet.
22         Q.    And just for the record, that is the
23   fourth page of Exhibit 1?
24         A.    It's the fourth page, yes.
25         Q.    And the left-hand side --
0073
 1         A.    Wet mount, office.
 2         Q.    -- you have that little circle
 3   filled in?
 4         A.    Yes.
 5         Q.    And that indicates that you did it?
 6         A.    That I did it.  And I more than
 7   likely told her I could treat her and gave her
 8   the option.  She could do cream or I could give
 9   her the one tablet that could treat the yeast,
10   because if she wasn't itching yet, she could,
11   and she wanted for the prescription.  Whether
12   she ever filled it or not, I wouldn't know that.
13         Q.    How long had she had this curdy
14   discharge?
15         A.    I have no idea.  She said that she
16   had not noticed it.  So like I said, she did not
17   complain of itching.
18         Q.    Where does it say that she said she
19   did not notice it?
20         A.    If she did not complain of it, she
21   did not say she had it.  And in me doing this
22   wet, I said to her, I'm taking a sample.  I tell
23   them what I'm doing and that I'm going to the
24   microscope, but I don't always put it in here
25   that I told the patient I see white discharge
0074
 1   I'm going to the microscope, I don't do that.
 2         Q.    Your job as a clinician, again in
 3   preventative medicine, includes looking for
 4   areas that need treatment even though the
 5   patient is coming in with no complaints other
 6   than a well woman exam?
 7         A.    Obvious things I could see in the
 8   vagina, yes.
 9         Q.    So that was one example of something
10   that she doesn't come in complaining about, but
11   during your careful clinical exam you discovered
12   that she had a potential vaginitis or yeast
13   infection?
14         A.    Yes.
15         Q.    And that's not something that you
16   would overlook or ignore, even though the
17   patient wasn't complaining about itching or any
18   discharge?
19         A.    It's not something that I would
20   overlook.
21         Q.    As a reasonable and prudent nurse
22   practitioner, you would expect if during a
23   vaginal exam you see curdy discharge, that it is
24   incumbent upon you to bring it to the patient's
25   attention and to recommend a course of
0075
 1   treatment; correct?
 2         A.    For comfort I recommended the
 3   treatment.  She was not uncomfortable.  I was
 4   worried about what could happen.
 5         Q.    Can curdy discharge be considered
 6   abnormal discharge?  Are those terms sort of
 7   interchangable?
 8         A.    I was describing the way it looked,
 9   but, no, it's not always abnormal.
10         Q.    Is curdy discharge a normal
11   discharge?
12         A.    For some women.
13         Q.    Did you inquire of this patient how
14   long she had had this curdy discharge?
15         A.    No, I didn't.
16         Q.    Did you inquire of this patient
17   whether this was something that she had as a
18   normal process?
19         A.    I didn't write it here.  I maybe
20   didn't ask her that.
21         Q.    Did you inquire of this patient as
22   to whether or not she had ever been treated for
23   a vaginitis or a yeast infection?
24         A.    I might have.
25         Q.    Any indication?
0076
 1         A.    I did not document it, no.
 2         Q.    You defined for me what menopause is
 3   before.  Define for me what perimenopausal is.
 4         A.    Perimenopause is the time of
 5   years -- even five to ten for some women --
 6   before the actual cessation of menstruation.
 7         Q.    What are the symptoms that you
 8   characteristically see in a patient who is
 9   perimenopausal?
10         A.    For some women, hot flashes.  For
11   some women, irritability.  For some women, they
12   will complain of sleep disturbances.  For some
13   women, they will complain of decreased libido.
14   For some women, they had complaints of excessive
15   tiredness, but it's the hot flashes that usually
16   will make them kind of take notice, wondering if
17   I'm ready to start the change.  But that can
18   start ten years before the woman actually stops
19   having periods.
20         Q.    We have perimenopausal and then we
21   talked about menopausal.  How does
22   postmenopausal differ, if at all, from
23   menopausal?
24         A.    It's the years after the woman has
25   stopped having her periods.
0077
 1         Q.    Before, did you tell me that
 2   menopause is defined as one year, so after one
 3   year --
 4         A.    That's menopause.
 5         Q.    Then you are postmenopausal?
 6         A.    You can say you are postmenopausal,
 7   but if she had not had a period for one year,
 8   she has gone through menopause.  And then the
 9   following year, if she comes back, she has not
10   had a period for that whole year, she is not
11   having anything and when you saw her that first
12   time she had told you she had not had a period,
13   so this will now be two years.  So this woman is
14   postmenopausal.
15         Q.    Do patients that are postmenopausal
16   continue to experience hot flashes?
17         A.    Some patients tell me they do.
18         Q.    And what medications, if any, are
19   given to patients that are postmenopausal to
20   help with the symptoms of --
21         A.    If they ask for something, you can
22   give them estrogen replacement.  If they ask for
23   something.
24         Q.    Is that something that you as a
25   nurse practitioner can prescribe?
0078
 1         A.    I can do that.
 2         Q.    And do you as a routine, if, and
 3   only if, the patient asks for it or do you
 4   proactively discuss?
 5         A.    No, because menopause is not an
 6   illness, you know, so it's not necessarily
 7   something that has to be treated.  You are
 8   treating symptoms.  And if she is uncomfortable,
 9   I will tell women other ways usually that maybe
10   can help them to become more comfortable and not
11   experience the symptoms as often.
12         Q.    Look at Exhibit 1 for a moment, the
13   third page of the exhibit.  That is the first of
14   the service identification forms.  Can you just
15   explain to me in general what this form is used
16   for?
17         A.    This is coding.  It helps with
18   charges and things like that.  But it's the
19   coding form.  And I forgot what year that we
20   started using these, but someone from the coding
21   department came and had been telling us what to
22   do, because this is how charges are also
23   documented.
24               So whatever you find, she came in
25   for a normal GYN exam.  That was my initial
0079
 1   assessment.  The menopausal symptoms was because
 2   she had complained of hot flashes, okay?
 3               The leiomyoma of the uterus, I had
 4   documented that because when I checked with the
 5   coding specialist, I said I usually like to wait
 6   until ultrasound reports the diagnosis, you
 7   know, she has the enlarged uterus and this and
 8   that.  And they said under exam, so I put the
 9   leiomyoma of the uterus.
10         Q.    Now, that leiomyoma --
11         A.    Is fibroid.
12         Q.    The leiomyoma of the uterus that you
13   marked down, filled in the circle, that was
14   before she had the ultrasound; correct?
15         A.    Uh-huh.
16         Q.    That's a yes?
17         A.    I'm sorry, yes.
18         Q.    That's all right.  You mentioned a
19   moment ago that you were told by the coding
20   people -- let me finish -- were you told by the
21   coding people with regard to this patient or
22   were you stating in general?
23         A.    In general.
24         Q.    On the next page or the last page,
25   Exhibit 4, you have some things written on the
0080
 1   bottom of this form.
 2         A.    This is what was done.
 3         Q.    So the PAP and then comma, looks
 4   like 9C.  What does that stand for?
 5         A.    She had a PAP, a gonorrhea culture,
 6   a chlamydia culture and the culture to check for
 7   the human papilloma virus was done.  And the
 8   pelvic ultrasound and the mammogram --
 9         Q.    And is there --
10         A.    -- was going to be ordered.
11         Q.    Is there any evidence -- because we
12   talked about the PAP, which is marked the wet
13   mount on the left-hand side -- is there any
14   indication first whether or not the PAP that was
15   done, was it a normal or abnormal result?
16         A.    I would not have been able to
17   document the results of the PAP at the time of
18   the visit because the PAP has to go to
19   pathology.
20         Q.    All right.  And if the PAP was
21   abnormal, given that you were the one that had
22   ordered it, again in the same context of the
23   pelvic ultrasound, would it be your expectation
24   that the results would be brought to your
25   attention?
0081
 1         A.    Yes.
 2         Q.    And then you would have a
 3   responsibility to communicate to someone the
 4   results of the PAP smear; correct?
 5         A.    Yes.
 6         Q.    Would that be to the patient or to
 7   the GYN?
 8         A.    The patient is notified that her PAP
 9   was abnormal and some follow-up was needed.
10         Q.    Now, the gonorrhea and the chlamydia
11   cultures --
12         A.    If they are normal, we don't call.
13         Q.    Is that done as a routine as part of
14   the PAP?
15         A.    For patients up to about age 26, you
16   will routinely do a gonorrhea and chlamydia
17   culture.  If I did it on someone age 55, I
18   usually say to the women, this is a check for
19   sexually transmitted disease; would you like for
20   me to do it or would you prefer that I don't?
21   If I did the cultures that day, she gave me the
22   okay to do it.
23         Q.    And just so I'm clear, is there any
24   indication that Lillian came in indicating any
25   concern about sexually transmitted disease?
0082
 1         A.    No.  But what women normally tell me
 2   is that they never know.  They know what they
 3   are doing.  And it's a very delicate subject for
 4   them, so some of them actually will tell me that
 5   they are concerned.  But no, all of them don't,
 6   but they don't decline the testing.
 7         Q.    There is nothing indicating in your
 8   notes in terms of her complaints or her concerns
 9   that she was concerned about a sexually
10   transmitted disease, is there?
11         A.    No.
12         Q.    Correct me if I am wrong, from what
13   you just told me, in doing the PAP, you
14   routinely would offer, since you are doing the
15   PAP, to do the chlamydia and gonorrhea test and
16   the HPV as a preventative?
17         A.    It's not preventative, because if
18   they have it, they have it.
19         Q.    As a diagnostic test --
20         A.    Well, I guess it will diagnose if
21   they have it.  But it's so that the women will
22   know.  It's something that they want to know.
23         Q.    Sure.  But it's not something that
24   Lillian came in, at least from what you can
25   tell, and said to you, Evelyn, I want this test.
0083
 1   This is something that you would have offered
 2   and she did not decline to have it?
 3         A.    Right.
 4         Q.    And as far as you know, there is
 5   nothing that would indicate that there was any
 6   issue in her life of any sexually transmitted
 7   disease that she was concerned about; correct?
 8         A.    No.
 9         Q.    My statement is accurate?
10         A.    I believe.  I don't see anything in
11   here that -- if she had said to me -- evidently
12   she didn't say to me I'm worried that my fellow
13   is seeing other people.  I would have told her
14   that these are the tests I can do, the PAP, the
15   gonorrhea, the chlamydia culture, the HPV, that
16   these are the ones I do.
17               The HPV, by the way is only run what
18   they call reflexively.  If her PAP had come back
19   abnormal then they automatically would have run
20   that HPV.  If the PAP came back normal, the HPV
21   would not have been run.
22         Q.    Okay.  During the course of the
23   deposition, have I been able to -- I know we
24   talked at the beginning about a hearing issue.
25   Have you understood my questions?
0084
 1         A.    Yes.
 2         Q.    Have I given you an opportunity to
 3   explain your answers fairly?
 4         A.    Yes.
 5         Q.    I haven't cut you off at all during
 6   the deposition?
 7         A.    Not too often, no.
 8         Q.    Seriously, have I cut you off?
 9         A.    No.  No.  I don't think so.
10         Q.    And if I did, did I give you an
11   opportunity to explain things if I might have
12   potentially cut you off?
13         A.    Yes.
14         Q.    I hate to finish a deposition
15   feeling I haven't been fair giving you an
16   opportunity to explain what went on in a
17   particular office visit.  So have I given you an
18   opportunity to explain this office visit based
19   upon your custom and practice and based upon
20   what you have written here?
21         A.    Yes.  Except for when you were
22   asking me about -- I was at first confused,
23   would she have scheduled the ultrasound and all
24   of that.  Because I just wanted you to know that
25   once again, the patient doesn't schedule her
0085
 1   ultrasounds, you know.
 2               If it's ordered, the radiology
 3   department calls them and schedules.  And that
 4   she has this done even within a month.  Whatever
 5   I put clinically on there, the fact that I felt
 6   that her uterus was enlarged, that gives them an
 7   indication, you know, about when to call and
 8   stuff like that.  And getting the patient in
 9   within two to three weeks is not abnormal.
10         Q.    Good.  But as far as why this
11   patient was not seen in follow up after this
12   study was done, you are not in a position to
13   tell me whether the system failed in terms of
14   follow up or whether the patient failed to
15   schedule an appointment?
16         A.    No, I can't tell you definitively
17   that, right.  Because it could have been that if
18   the patient didn't call, but I can't say that
19   she didn't.
20         Q.    Is it also possible that the system
21   failed as well but you don't know?
22               MR. RIEMENSCHNEIDER:  Objection.
23         A.    With this report, the patient would
24   have called in, even somebody picking up this
25   report, I would not have just rushed, okay, she
0086
 1   needs to be seen in a week with this kind of
 2   report.  Because it confirmed what I would have
 3   initially thought; that she had fibroids.  There
 4   was nothing there in this report that says, oh,
 5   for me.
 6         Q.    So hypothetically --
 7         A.    And when it comes back abnormal,
 8   almost every ultrasound that comes back that
 9   would have abnormal, it's abnormal because they
10   saw fibroids in the uterus, that's what made
11   this abnormal.
12         Q.    Hypothetically, if the results came
13   back to you in a patient that had had spotting,
14   who had had hot flashes, whose last menstrual
15   period had been greater than six months earlier,
16   who on exam had a large bulky uterus, and the
17   ultrasound showed that her fibroid measured 5.4
18   centimeters in greatest diameter and the
19   endometrium was prominent measuring .9
20   centimeters and the uterus measured 12.7 by 9.5
21   by 10.2 centimeters, you would not have been
22   concerned about the patient's condition as of
23   that time?
24         A.    At that time.
25         Q.    So, conceivably, if the patient did
0087
 1   talk to you, would you have indicated to her
 2   that the ultrasound confirmed that you have
 3   fibroids?
 4         A.    That you have fibroids.  My answer
 5   to her also would have been, but you should
 6   still follow up with a physician.
 7         Q.    Okay.  And we just don't know
 8   whether that conversation took place; true?
 9         A.    Right.
10               MR. MISHKIND: Thank you very much.
11   I have no further questions.
12               THE WITNESS: You are very welcome.
13                      - - - - -
14         (Deposition concluded at 12:16 p.m.)
15              (Signature not waived.)
16                      - - - - -
17   
18   
19   
20   
21   
22   
23   
24   
25   
0088
 1                     AFFIDAVIT
 2         I have read the foregoing transcript from
 3   page 1 through 87 and note the following
 4   corrections:
 5   PAGE  LINE     REQUESTED CHANGE
 6   
 7   
 8   
 9   
10   
11   
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15   
16   
17   
18   
                          EVELYN JAMES, RN, CNP
19   
20     Subscribed and sworn to before me this
     day of          , 2008.
21   
22   
23   
24   
     Notary Public
25   My commission expires          .
0089
 1                     CERTIFICATE
 2   State of Ohio,
                        SS:
 3   County of Cuyahoga.
 4   
       I, Vivian L. Gordon, a Notary Public within
 5   and for the State of Ohio, duly commissioned and
     qualified, do hereby certify that the within
 6   named EVELYN JAMES, RN, CNP was by me first duly
     sworn to testify to the truth, the whole truth
 7   and nothing but the truth in the cause
     aforesaid; that the testimony as above set forth
 8   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 was
11   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 June, 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   
22   
23   
24   
25   
0090
 1                       INDEX
 2         EXAMINATION OF EVELYN JAMES, RN. CNP
 3   
 4   
 5     BY MR. MISHKIND:              3        12
 6   
 7                       EXHIBITS
 8   
 9     Exhibits 1 and 2 were was     3        3
10     marked
11   
12   
13   
14   
15   
16   
17   
18   
19   
20   
21   
22   
23   
24   
25